EEOICPA BULLETIN NO. 08-40
Issue Date: August 27, 2008
Effective Date: August 27, 2008
Expiration Date: August 27, 2009
Subject: Processing cases with a recommended decision pending at FAB in excess of one year.
Background: 20 C.F.R. § 30.316 (c) states that:
“Any recommended decision (or part thereof) that is pending either a hearing or a review of the written record for more than one year from the date the FAB received the written statement described in § 30.310(a), or the date the Director reopened the claim for issuance of a new final decision pursuant to § 30.320(a), shall be considered a final decision of the FAB on the one-year anniversary of such date. Any recommended decision described in § 30.311 that is pending at the FAB for more than one year from the date that the period of time described in § 30.310 expired shall be considered a final decision of the FAB on the one-year anniversary of such date."
This language was added to the regulations to guarantee that delays do not occur in the adjudication process. There are three different scenarios applicable to the one year time limit (or “one year rule”):
1. In cases where there is an objection, the recommended decision becomes final one year after the date the objection is received in the FAB (if no final decision has been issued.)
2. In cases where no objection is filed, the recommended decision becomes final one year after the period for objections has expired (if no final decision has been issued). This would be 425 days [60 days to object + 365 days (one year)] after the recommended decision date.
3. In cases where a Director’s Order vacated the final decision, the recommended decision becomes final one year after the date of the Director’s Order (if a new final decision has not been issued).
The current version of the Procedure Manual at Chapter 2-1300.10 states that in such instances where the recommended decision becomes final after the one-year time limit has been exceeded, “the FAB will issue a final decision explaining the delay in the adjudication process.” This is no longer the procedure to be followed in these types of cases. This bulletin serves to update the procedures for handling these types of cases.
Reference: 20 C.F.R. § 30.316 (29 December 2006), Federal (EEOICPA) Procedure Manual (EEOICPA Tr. No. 05-01, April 2005)
Purpose: To provide guidance on processing claims that have a “regulatory/administrative” final decision based on the “one-year rule.”
Applicability: All Staff
1. Once the one year time frame has elapsed, there is essentially a regulatory/administrative final decision. This means the recommended decision is considered final as of the pertinent one year date and becomes known as the regulatory/administrative final decision. The district FAB CE or HR does not need to issue any correspondence or decision to the claimant at this time. These cases are reviewed by the Office of the Director to vacate the regulatory/administrative final decision so a formal final decision can be issued.
2. If a claims examiner (CE) or hearing representative (HR) in a district FAB office has a case in which there is a recommended decision that has not had a corresponding final decision or remand order issued within (a) one year after the period for objections has expired; (b) one year from the date the objection or hearing request was received (if one was filed); or (c) one year from the date of the Director’s Order vacating the final decision (if one was issued), the case file must be forwarded to the Washington, DC FAB for review.
3. If the case is identified in the district office as requiring a regulatory/administrative final decision, the case should be returned first to the district FAB along with notification on the transfer sheet that the case requires a regulatory/administrative final decision. The case should then be sent to the Washington, DC FAB.
When the district FAB CE/HR identifies a regulatory/administrative decision based on the one year rule described above, the FAB CE/HR enters the “F10” (Regulatory Final Decision) claim status code into ECMS prior to referral to the Washington, DC FAB. The status effective date of the code is the one-year anniversary date of the objection being received (as indicated by the date stamp) in the FAB NO or FAB DO (whichever is first) for contested claims, the 425th day after the date of the recommended decision for non-contested claims, or one year after the date of the Director’s Order (if a new final decision has not been issued on cases where a Director’s Order vacated the final decision).
4. The FAB CE/HR ensures the case file is sent to the Washington, DC FAB to the attention of the FAB Operations Specialist. A memo from the district FAB Manager, through the FAB Branch Chief, dated and signed by the FAB Branch Chief, to the Director must be included with the case file. The FAB Operations Specialist ensures that the case file is sent to the National Office to the attention of the Office of the Director. The memo requests that the regulatory/administrative final decision (based on the one-year rule) be vacated so a formal final decision can be issued. The FAB Operations Specialist enters the “MI” [District Director (or FAB Manager) requests reopening] claim status code into ECMS B and/or E, as appropriate, with a status effective date equal to the date of the memo to the Director. If the case is an E/B case and the regulatory/administrative final decision affects Part B and Part E of the case, the “MI” status code must be entered into both ECMS B and E. This is true for the subsequent reopening status coding as well (MQ, MD or MF, and MZ discussed below).
5. Once the case file is received in National Office, it is assigned to a CE who enters status code “MQ” (Reopening Request Received in National Office) in ECMS. The status effective date of the “MQ” code is the date the case file is date-stamped as received in the National Office. The file is then reviewed by the CE and a Director’s Order is drafted to vacate the regulatory/administrative final decision. The Director, or the designated representative, reviews and signs the Director’s Order advising the claimant that the recommended decision became final due to an administrative process contained in regulations [20 C.F.R.§ 30.316 (c)] and that the regulatory/administrative final decision has been vacated so a formal final decision can be issued. The Director’s Order also specifies whether the case file needs to be returned to FAB for a final decision or to the district office for a new recommended decision based on the evidence of record. If the case file is returned to FAB, the National Office CE enters the “MF” (Claim Reopened, File Returned to the FAB) status code into ECMS with a status effective date equal to the date of the Director’s Order. If the case file is returned to the District Office because the recommended decision was incorrect, or additional evidence has resulted in the need for additional development and issuance of a new recommended decision, the National Office CE enters the “MD” (Claim Reopened, File Returned to the DO) status code into ECMS with a status effective date equal to the date of the Director’s Order.
6. Once the file is received back in the FAB or district office, the responsible CE/HR enters the “MZ” (Receipt of Director’s Order in DO or FAB) status code with a status effective date of the date the file is date-stamped as received back in the district office or FAB. The District Office or FAB proceeds as instructed by the Director’s Order.
Disposition: Retain until incorporated in the Federal (EEOICPA)
Rachel P. Leiton
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers,Operation Chiefs, Hearing Representatives, District Office Mail & File Sections