EEOICPA BULLETIN NO. 10-08

 

 

Issue Date: January 14, 2010

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Effective Date: January 14, 2010

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Expiration Date: January 14, 2010

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Subject:   Laryngeal cancer and solitary plasmacytoma as specified cancers.

 

Background:  The Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) regulations at 20 CFR § 30.5(ff) list the specified cancers that are payable to members of the Special Exposure Cohort (SEC).  That same section notes that these cancers mean “the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.”  In accordance with this regulation, the Department of Labor (DOL) requested guidance from the National Cancer Institute (NCI) on whether certain cancers that are not listed in the regulations are the same physiological conditions as a specified cancer. 

 

NCI was asked if laryngeal cancer could be considered a specified cancer.  In their response, NCI stated that laryngeal cancer can be grouped with pharyngeal cancer.  Both pharyngeal and laryngeal cancers are usually grouped together under the general term of “head and neck cancer” as they are biologically similar cancers originating from the upper aerodigestive tract.  Therefore, a primary cancer of any region of the larynx is considered as a specified cancer.  The regions of the larynx are the glottis, supraglottis, subglottis, and laryngeal cartilages.  See Attachment 1 which defines the regions and sub-regions of the larynx.  However, as previously defined in EEOICPA Bulletin No. 02-15, chondrosarcoma of the cricoid cartilage of the larynx is considered a bone cancer.

 

NCI was also requested to provide medical clarification on whether a solitary plasmacytoma can be considered a bone cancer, and thereby considered a specified cancer under the EEOICPA.  In their response, NCI stated that there are two types of solitary plasmacytoma, one is the bone form and the other is the soft tissue form.  The bone form of solitary plasmacytoma is a form of cancer consistent with bone cancer.  However, the soft tissue form of solitary plasmacytoma is not considered a bone cancer or multiple myeloma.

 

References:  Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. § 7384 et seq. § 7384l(17); 20 CFR Part 30, § 30.5(ff)(5)(iii)(E), and § 30.5(ff)(6); July 30, 2009 response from NCI to DOL; August 19, 2009 response from NCI to DOL.

 

Purpose:  To provide policy guidance regarding the classification of additional medical conditions as specified cancers under the EEOICPA.

 

Applicability: All staff.

 

Actions:

 

1.  The Claims Examiners (CE) in the district offices and the Final Adjudication Branch (FAB), as well as the FAB Hearing Representatives (HR) are to consider that laryngeal cancer is a SEC specified cancer.  NCI has provided guidance that laryngeal cancer meets the physiological conditions that allow it to be grouped with pharyngeal cancer, a SEC specified cancer. 

 

The ICD-9 codes for laryngeal cancers are: glottis - 161.0; supraglottis – 161.1; subglottis – 161.2; laryngeal cartilages – 161.3; other specified sites of larynx – 161.8; and unspecified sites of the larynx – 161.9. The Energy Case Management System (ECMS) has been updated to reflect that these ICD-9 codes are to be considered as a SEC specified cancer. A list of the ICD-9 codes defining the regions and sub-regions of the larynx is included as Attachment 1.  (However, as defined in EEOICPA Bulletin No. 02-15, chondrosarcoma of the cricoid cartilage of the larynx is considered a bone cancer.  It will not be considered laryngeal cancer.)

 

2.  The CE/HR is to evaluate a diagnosis of solitary plasmacytoma to determine whether or not it involves the bone or the soft tissue.  If the diagnosis is the bone form of solitary plasmacytoma (a/k/a solitary myeloma), it is considered a bone cancer, which is a SEC specified cancer.  If the diagnosis is a soft tissue solitary plasmacytoma, it is not considered a bone cancer or multiple myeloma, and, therefore, is not a SEC specified cancer. 

 

The ICD-9 code for both the bone form and the soft tissue form of solitary plasmacytoma is 238.6.  For consideration as a specified cancer, the employee’s medical records must indicate the diagnosis is the bone form of solitary plasmacytoma. ECMS has been updated to reflect that ICD-9 code 238.6 is a specified cancer; however, only the bone form of plasmacytoma is to be considered as a specified cancer. 

 

3.  For Action items 1 and 2, the inclusion of those cancers as a SEC specified cancer encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.

 

4.  For Action items 1 and 2, the Division of Energy Employees Occupational Illness Compensation (DEEOIC) has prepared a list of cases with the claimed cancers.  It includes pending cases, cases previously denied, and cases at the National Institute for Occupational Safety and Health (NIOSH).  All cases on this comprehensive list must be reviewed by the appropriate district office or co-located (CE2) unit at the FAB to determine whether the SEC class criteria are satisfied.  This comprehensive list will be provided to the appropriate district offices and FAB under separate cover.

 

5.  The district offices are to use the comprehensive list as the basis for an initial screening of cases associated with Action items 1 and 2 of this Bulletin.  The purpose of the screening is to make an initial determination on whether a case is likely to meet the criteria for inclusion into a SEC class.  A screening worksheet is included as Attachment 2.  The worksheet must be completed for all cases on the comprehensive list.  Upon completion, the worksheet is to be included in the case file.  Based upon the initial screening, the cases on the list will be grouped into three categories: those likely to be included in a SEC class; those not likely to be included in a SEC class; and those for which development may be needed to determine whether the case can be accepted into a SEC class.  Claim status codes have been created in ECMS to reflect each of these categories: ISL (Initial SEC Screening, Likely SEC) for those likely to be included in a SEC class; ISU (Initial SEC Screening, Unlikely SEC) for those unlikely to be included in a class; and ISD (Initial SEC Screening, Development Needed) for which development may be needed in order to reach a determination on SEC class inclusion.  A reason code corresponding to the SEC class status screening code has also been created, which in this instance is 008 (Reviewed under 10-08, laryngeal and plasmacytoma cancers (SEC)).  Once the worksheet is completed, the claims examiner (CE) is to select the appropriate claim status code and associated reason code from the drop down lists in ECMS B only.  The status effective date for the ISL, ISU and ISD codes is to correspond with the completion date of the screening worksheet. 

 

The purpose of this initial screening is to assist the district offices in prioritizing claims poised for acceptance.  Once screening and prioritization is complete, claims adjudication proceeds in the usual manner.  Regardless of the outcome of the screening protocol, each case must be evaluated formally for SEC inclusion and the decision recorded in ECMS.  The initial screening step is only applicable to cases on the comprehensive list.  It is not applicable to new claims submitted after the list is generated.  These claims are evaluated for inclusion in the SEC in the general course of processing.

 

6.  For cases on the comprehensive list that are located at FAB, the designated CE2 Unit is to conduct the initial screening, complete the worksheet and enter related coding.

 

7.  There may be some cases on the comprehensive list that are at NIOSH for a dose reconstruction.  These cases must be evaluated for inclusion in a SEC class.  If any such case qualifies under any of the SEC classes, the CE, through the Senior CE (SrCE), notifies the appropriate point of contact at NIOSH via e‑mail to return the dose reconstruction analysis records.  The SrCE then prints a copy of the “sent” e‑mail (making sure the printed copy documents the date it was sent) for inclusion in the case file.  The CE is to enter the status code “NW” (NIOSH, returned without a dose reconstruction) using the effective date of this Bulletin, January 14, 2010, as the status effective date in ECMS B.  The CE does not enter the status code until the DEEOIC district office actually receives the NIOSH-returned dose reconstruction record, which should include a CD for each case.  The CD should contain all of the information generated to date; e.g., CATI report, correspondence, and dose information.  The standard procedure for NIOSH coding in ECMS E is to code all additional NIOSH actions only if the “NI” (Sent to NIOSH) status code has been entered.  In addition, the CE must write a letter to the claimant advising that the case file has been withdrawn from NIOSH for evaluation under the SEC provision.

 

If a case on the comprehensive list is at NIOSH and it does not qualify under the SEC provision, then refer to instructions in Action item 17.

 

8.  For any NIOSH-returned cases identified as having a potential for compensability based on a new SEC cancer, the responsible CE is to review all relevant documentation contained in the case file, including any documentation that NIOSH may have acquired or generated during the dose reconstruction process.

 

9.  If the employee has a specified cancer, the CE must determine if he or she can be included in a SEC class.  If the employee meets the criteria of a SEC class, the CE must determine if the 250-workday requirement is satisfied.  The employee may aggregate 250 workdays by combining employment in more than one SEC class.

 

10.  Once the CE has determined the employee has a diagnosed specified cancer and meets all other criteria of a SEC class, the CE proceeds in the usual manner for a compensable SEC claim and prepares a recommended decision.

 

ECMS Coding Reminder:  The “SE” (Confirmed as SEC Claim) status code must be entered into ECMS B with a status effective date equal to the status effective date of the recommended decision to approve.  If the case is a B/E case, and the basis for the Part E acceptance is the Part B SEC acceptance, the “SE” code must also be entered into ECMS E with a status effective date of the recommended decision to approve under Part E.

 

11.  If it is determined that a case which was returned from NIOSH does meet all the criteria to qualify for a SEC claim, the CE, through the SrCE, notifies the appropriate point of contact at NIOSH via e-mail, so that NIOSH can close out their file.  The SrCE then prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) for inclusion in the case file.

 

12.  If it is determined that a case which was returned by NIOSH to the district office does not qualify for a SEC claim, the CE, through the SrCE, notifies the appropriate point of contact at NIOSH via e-mail to proceed with the dose reconstruction.  A new NIOSH Referral Summary Document (NRSD) is not required.  The SrCE prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) for inclusion in the case file.  The CE enters status code “NI” into ECMS B, with a status effective date equal to the date of the e-mail requesting NIOSH to proceed with dose reconstruction.  The e‑mail should include a brief statement of why the case should proceed with dose reconstruction; e.g., non-specified cancer, insufficient latency period, or does not meet the 250 workday requirement.

 

In addition, the CE is to notify the claimant by letter that the case is returned to NIOSH for a dose reconstruction and the reason(s) it does not qualify for a SEC claim.  The CE is to send a copy of this letter to NIOSH.  If the case is a B/E case, and toxic exposure development was completed with a memorandum to the file (with prior “NI”/”NW” codes), the CE enters status code “NI” into ECMS E with the status effective date of the e‑mail requesting NIOSH to proceed with dose reconstruction.  

 

Upon receipt of the dose reconstruction report, the CE proceeds in the usual manner and prepares a recommended decision.  The CE enters status code “NR” (NIOSH Dose Reconstruction Received) in ECMS B and selects the reason code.  The status effective date is the date the dose reconstruction report is date-stamped into the district office.  The CE does not delete the “NW” or “NI” codes already present in ECMS.  If the CE had previously entered “NI” in ECMS E, the CE also enters code “NR” and appropriate reason code in ECMS E.  If the case is a B/E case, the CE enters the Probability of Causation (PoC) into ECMS B and ECMS E (regardless of whether the “NI” code had previously been entered).

 

13.  If the claim meets the SEC employment criteria and includes both a specified cancer and a non-specified cancer, medical benefits are only paid for the specified cancer(s), any non-specified cancer(s) that has a dose reconstruction resulting in a probability of causation (PoC) of 50% or greater, and any secondary cancers that are metastases of a compensable cancer.  In these instances, the CE drafts a recommended decision to accept the claim for the specified cancer (provided all criteria are met) and any cancers for which there is a POC of 50% or greater.  The CE enters status code “SE” into ECMS B.  The status effective date for the “SE” code is the date of the recommended decision to accept the specified cancer.  If the case is a B/E case, and the basis for the Part E acceptance is the Part B SEC acceptance, the “SE” code must also be entered into ECMS E with a status effective date of the recommended decision to approve under Part E.

 

Then, if necessary, the CE concurrently prepares a NRSD to NIOSH for a dose reconstruction for any non-specified cancer(s) to determine eligibility for medical benefits.  The CE enters status code “NI” into ECMS B.  The status effective date for the “NI” code is the date of the Senior or Supervisory CE signature on the NRSD. If the case is a B/E case, the CE enters status code “NI” in ECMS E only after the toxic exposure development is complete and the CE cannot accept causation.  In that case, the CE creates a memorandum to file stating that toxic exposure development is complete, and enters status code “NI” in ECMS E with the date of the memorandum as the status code effective date.

 

14.  If a claim with one of the new specified cancers has a final decision to deny based on a PoC of less than 50% and a review of the evidence of record establishes likely inclusion in a SEC class, the case will need to be reopened.  In the exercise of the DEEOIC Director’s discretion of the reopening process, limited authority is delegated to the four District Directors (DD), and the Assistant District Directors at the discretion of the DD, to sign Director’s Orders for reopening of these cases.  This delegated authority is limited to reopenings based upon evidence that an employee has a diagnosis of one of the new specified cancers and who meets all other criteria for inclusion into a SEC class.

 

This delegated authority extends to any case potentially affected by the new SEC specified cancers.  However, if the District Director is unsure of whether the SEC is applicable to the case, the case should be referred to the National Office.  A sample Director’s Order is provided in Attachment 3.  The DEEOIC Director is retaining sole signature authority for all other types of reopenings not otherwise delegated.  Once a Director’s Order is issued, the district office is responsible for issuing a new recommended decision.

 

15.  For those cases reopened under the authority granted in this Bulletin, the District Director enters status code “MN” (NO Initiates Review for Reopening) in ECMS B with a status effective date equal to the effective date of this Bulletin.  If the District Director is also reopening Part E, the “MN” code is also entered into EMCS E.  For all reopenings per this Bulletin, upon completing the Director’s Order to reopen the claim, the District Director enters status code “MD” (Claim Reopened – File Returned to DO) into ECMS B/E (as appropriate) to reflect that the case has been reopened and is in the district office’s jurisdiction.  (The “MZ” status code, receipt of Director’s Order in the DO or FAB, is not necessary.)  The status effective date of the “MD” code is the date of the Director’s Order.  Please note that while the “MD” code was generally input by National Office staff, entry of this code has been delegated to the District Director, just as the authority to grant reopenings has been delegated in this specific circumstance.

 

16.  Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending cases with one of the newly specified cancers that have a recommended decision to deny.  

 

If the employee worked at a SEC-designated site during the SEC time period, has a specified cancer, and meets the 250-workday requirement, the FAB is to reverse the district office’s recommended decision to deny, and accept the case.  The FAB CE/HR enters status code “F6” (FAB Reversed to Accept) with the appropriate reason code into ECMS B/E to reflect the FAB reversal with a status effective date equal to the date of the final decision to accept.  The FAB CE/HR also enters status code “SE” in ECMS B/E (as appropriate) with a status effective date equal to the date of the final decision to accept. 

 

If no action is required, FAB must follow the instructions specified in Action item 17, below, to indicate that a review of the case was completed.

 

Every effort should be taken to avoid a remand of a potential SEC claim to the district office.  If FAB determines that the case cannot be accepted based on a new SEC specified cancer, and that referral to NIOSH is appropriate (see Action items 9 and 12), the CE or FAB staff member must remand the case for district office action.  The CE or FAB staff member enters status code “F7” (FAB Remanded) with “OTH” (No DO Error – Other) as the reason code in ECMS B/E (as appropriate), with a status effective date equal to the date of the remand.

 

17.  If, after review or further development, the district office CE or the CE2 staff member at FAB determines that a case on the comprehensive list does not require any action, the CE or CE2 staff member must write a brief memo to the file indicating that the file was reviewed and note the reason why no additional action is necessary.  A case classified as not requiring any action is a case that does not meet the SEC criteria and does not need to be sent to NIOSH for dose reconstruction, or is at NIOSH and does not need to be recalled.

 

The CE must then code “NA” (No Action Necessary) and select the appropriate reason code from the reason code drop down list.  Since the “NA” coding is specifically tied to the SEC review list generated by DEEOIC, the “NA” code is restricted to ECMS B.  This is because the SEC review list is derived from Part B data.  

 

For new SEC specified cancer cases that were reviewed under this Bulletin and require no additional action, the “NA” reason code that must be selected is 008 (Reviewed under 10-08, laryngeal and plasmacytoma cancers (SEC)) and be coded into ECMS B only, even if the case is a B/E case.  The status effective date of the “NA” code is the date of the memo to the file stating the review is complete, and the CE has determined there is no further action necessary.  For those instances in which further development is necessary, the “NA-008” code is not entered initially.  The “NA-008” code is only entered when the CE determines after development that the case does not meet the SEC criteria or there is no need to return it to NIOSH for dose reconstruction.  For those cases on the DEEOIC comprehensive list that were not withdrawn from NIOSH, the CE enters the “NA-008” code only after the CE determines that the case does not meet the SEC criteria.  These cases remain at NIOSH for completion of a dose reconstruction.

 

Please note that if the CE discovers that the claimant(s) is/are deceased, the CE must still enter the “NA-008” code in addition to the closure code.  The status effective date for the “NA” coding is the date of the memorandum to file.

 

18.  The CE/HR should continue to distinguish the above medical conditions from other cancers and non-cancers, using the appropriate ICD-9 codes on all paperwork and in ECMS.

 

19.  Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.

 

 

 

RACHEL P. LEITON

Director, Division of Energy Employees

Occupational Illness Compensation

 

 

Attachment 1

Attachment 2

Attachment 3

 

Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, and District Office Mail and File Sections.