EEOICPA BULLETIN NO. 11-02
Issue Date: November 5, 2010
Effective Date: November 5, 2010
Expiration Date: November 5, 2011
Subject: Ames Laboratory SEC Class from January 1, 1955 through December 31, 1960
Background: Pursuant to the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) and 42 C.F.R. Part 83, a petition was filed on behalf of workers from the Ames Laboratory in Ames, Iowa to be added to the Special Exposure Cohort (SEC).
The National Institute for Occupational Safety and Health (NIOSH) reviewed the petition and determined that it qualified for evaluation under 42 C.F.R. § 83.13. NIOSH submitted its findings to the petitioners and the Advisory Board on Radiation and Worker Health (“the Board”). On September 1, 2010, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC a class of employees who worked at the Ames Laboratory in Ames, Iowa.
On October 6, 2010, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:
All employees of the Department of Energy, its predecessor agencies, and its contractors and subcontractors who worked in any area of of the Department of Energy facility at the Ames Laboratory from January 1, 1955 through December 31, 1960, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
A copy of the Secretary’s letter to Congress recommending the designation is included as Attachment 1. Although Congress had the authority to reject the recommendation within a 30-day time frame, Congress took no action. Therefore, the SEC designation for this class became effective as of November 5, 2010, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in the report to Congress.
NIOSH has concluded that it can provide a partial dose estimate using any internal and external monitoring data, including occupational medical dose, available for an individual claim (and that can be interpreted using existing NIOSH dose reconstruction processes or procedures). This means that for claims that do not satisfy the SEC membership criteria, a partial dose reconstruction is to be performed by NIOSH.
References: Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. § 7384 et seq.;42 C.F.R. Part 83, Procedures for Designating Classes of Employees as Members of the Special Exposure Cohort Under EEOICPA; the October 6, 2010 letter to Congress from the Secretary of HHS in which Secretary Sebelius makes the designation; SEC Petition Report for the Ames Laboratory.
Purpose: To provide procedures for processing SEC claims for workers at the Ames Laboratory in Ames, Iowa.
Applicability: All staff.
1. This class encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
2. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has prepared a list of cases with claimed employment at the Ames Laboratory during the period of the SEC class. It includes pending cases, cases previously denied, and cases at NIOSH. It also includes specified and non-specified cancer cases. All cases on this comprehensive list must be reviewed by the district office(s) and by the Final Adjudication Branch (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.
3. The district offices are to use the comprehensive list as the basis for an initial screening of cases associated with 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 the SEC. 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 the SEC class; those not likely to be included in the SEC class; and those for which development may be needed to determine whether the case can be accepted into the new 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 the SEC class; “ISU” (Initial SEC Screening, Unlikely SEC) for those unlikely to be included in the class; and “ISD” (Initial SEC Screening, Development Needed) for those 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, in this instance, “102- Rvwd per Bulletin 11-02, Ames Laboratory SEC (1/1/55 – 12/31/60).” 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 and for purposes of meeting operational plan goals. Once screening and prioritization is complete, claims adjudication proceeds in the usual manner. No matter the outcome of the screening protocol, each case must be evaluated formally for SEC inclusion and the decision recorded in ECMS for all claims (including those claims with any form of closure code in ECMS) in each case. 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 will be evaluated for inclusion in the SEC class in the general course of processing.
4. For cases on the comprehensive list at FAB, the designated CE2 Unit is to conduct the initial screening, complete the worksheet, and enter related coding.
5. The comprehensive list includes cases identified by NIOSH that should be considered for inclusion in the SEC class. NIOSH will return dose reconstruction analysis records for cases with specified cancers to the appropriate district office along with a CD for each case. The CD should contain all of the information generated to date, e.g., CATI report, correspondence, and dose information. Also included on the CD, in the Correspondence Folder, should be a copy of the NIOSH letter sent to each claimant informing the claimant of the new SEC class, and that his or her case is being returned to the DOL for adjudication. A copy of the NIOSH letter to affected Ames Laboratory employees is included as Attachment 3. The CE must print out a hard copy of the NIOSH letter for inclusion in the case file.
Once a case file is returned from NIOSH (including cases that DEEOIC has withdrawn from NIOSH) to the district office for potential inclusion in the SEC class, the CE enters status code “NW” (NIOSH, returned without a dose reconstruction) in ECMS B. The status effective date for the “NW” code entry is November 5, 2010. However, the CE does not enter the status code until the DEEOIC office actually receives the NIOSH-returned dose reconstruction record. 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. Therefore, the CE enters the “NW” code into ECMS E with the status effective date of November 5, 2010, only if “NI” has already been entered in ECMS E.
There may be some cases on the comprehensive list that were not identified by NIOSH for potential inclusion in the SEC class, and consequently are still at NIOSH for a dose reconstruction. These cases must also be evaluated for inclusion in the SEC class in accordance with the procedures in this Bulletin. If any such case qualifies under the SEC class, 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” with a status effective date of November 5, 2010. 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 the case is still at NIOSH and does not qualify under this SEC provision, based on the guidance provided in this Bulletin, then refer to instructions in Action #16.
6. For any cases identified as having potential for compensability based on the new SEC class, 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.
7. Based on this review, the CE determines whether the employee has a specified cancer, as listed in the Federal (EEOICPA) Procedure Manual, Chapter 2-0600.7. If the employee has a specified cancer, proceed to Action #8. If the employee does not have a specified cancer, proceed to Action #10.
8. If the employee has a specified cancer, the CE must determine if the worker was employed at least 250 workdays at the Ames Laboratory in Ames, Iowa between January 1, 1955 and December 31, 1960.
Based on facility information provided in the SEC evaluation report, Ames Laboratory was established by the Atomic Energy Commission (AEC) in May 1947 and played a key role in the production of strategic nuclear materials for the Manhattan Project and the AEC. The Ames Laboratory site consists of a number of buildings at Iowa State University (ISU) in Ames, Iowa.
Once 250 days of Ames Laboratory employment during the class period is established, the CE or hearing representative can accept that the employment component of the SEC class is satisfied. In these cases, the CE proceeds to Action #9.
If the employee does not have 250 workdays at the Ames Laboratory, the CE must review the file to determine if additional days in the SEC can be found by combining days from employment meeting the criteria for other classes in the SEC and aggregating them together to meet the 250-workday requirement. If the 250-workday requirement is not satisfied, the CE proceeds to Action #10.
9. Once the CE has determined that the employee has a diagnosed specified cancer and meets the employment criteria of the SEC class, the CE proceeds in the usual manner for a compensable SEC claim and prepares a recommended decision.
If it is determined that the case does qualify for the SEC class, 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. In addition to the usual recommended decision coding, when a recommended decision to grant benefits based on inclusion in an SEC class is issued, the CE must enter the code “SER”(SEC Recommended Acceptance) into the claim status history. This code represents that an SEC acceptance is included in the recommended decision being issued. This code is entered with the same status effective date as the recommended decision (it doesn’t matter which one is entered first). The “SER” code has replaced the “SE” code (though there is no reason to update old “SE” codes).
When the “SER” code is entered, a reason code must be entered to reflect which SEC class the acceptance is based on. If the acceptance is based on this Ames Laboratory SEC, the reason code selected will be “102- Rvwd per Bulletin 11-02, Ames Laboratory SEC (1/1/55 – 12/31/60).”
If the SEC acceptance is based on inclusion in more than one SEC Class, then more than one “SER” code will need to be entered so that the reason codes selected will represent all SEC classes leading to the acceptance. For example, if the employee worked for 125 days of SEC covered employment at Ames Laboratory and another 125 days of SEC covered employment at the Metallurgical Laboratory, you would need the employment at both facilities to meet the 250-workday requirement. In this situation, the CE would need to code one “SER” with a “102- Rvwd per Bulletin 11-02, Ames Laboratory SEC (1/1/55 – 12/31/60)” reason code. Then the CE would also need to enter a second “SER” with a “907- Rvwd per Bulletin 09-07, Metallurgical Laboratory SEC” reason code. The CE would also need to enter the recommended decision code(s) with the same status effective date as the “SER” codes.
Please note that the “SEC/SEC Desc” field on the claim screen in ECMS is no longer a required field. The CE will not enter an Ames Laboratory SEC description into ECMS.
10. Although HHS determined that it is not feasible for NIOSH to perform complete dose reconstructions for this class of employees, NIOSH has indicated that partial dose reconstructions are possible. Accordingly, for cases that have not been submitted to NIOSH and do not meet the criteria of the SEC class, the CE must refer these cases to NIOSH with a NIOSH Referral Summary Document (NRSD) to perform dose reconstructions. The CE enters status code “NI” (Sent to NIOSH) in ECMS B. The status effective date is the date of the Senior or Supervisory CE signature on the NRSD. If the case is a B/E case, the “NI” code is not entered into ECMS E until non-radiological toxic exposure development is complete.
For those cases which were previously submitted to NIOSH for dose reconstruction and which were returned to the district office for consideration for inclusion in this SEC class, a new NRSD is not required. If it is determined that the case does not qualify for the SEC class, the CE through the SrCE, notifies the appropriate point of contact at NIOSH via e-mail to proceed with the dose reconstruction. 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 enters status code “NI” (Sent to NIOSH) 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 dose reconstruction and the reason(s) it does not qualify for the SEC class. 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 a prior “NI”/”NW” code), 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 “PD”(Partial Dose Reconstruction) reason code. The status effective date is the date the dose reconstruction report is date-stamped into the district office. The CE should not delete the “NW” (NIOSH, returned without a dose reconstruction) or “NI” (Sent to NIOSH) codes already present in ECMS. If the CE had previously entered “NI” in ECMS E, the CE also enters codes “NR” and “PD” 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).
11. If the claim meets the SEC class employment criteria and includes both specified and non-specified cancers, benefits can be awarded for the specified cancer(s) and any non-specified cancer(s) assigned a probability of causation (PoC) of 50 percent or greater. Medical benefits are also payable for a non-specified primary cancer, where it is found to be the origin of a compensable secondary SEC cancer; i.e. bone, lung, or renal. For instance, prostate (non-specified primary) cancer metastasizes to secondary bone cancer. If secondary bone cancer is accepted as a specified cancer under the SEC provision, both the primary and secondary cancers (prostate and bone cancer) are to be accepted for medical benefits without a need for a dose reconstruction for the prostate cancer. The CE should be careful to recognize, however, that a non-specified primary cancer approved for medical benefits in this situation does not qualify as determination of causation under Part E (See PM 2-0900.7b(1)). When the situation arises where both a secondary SEC cancer and its non-specified primary cancer exist, the CE drafts a recommended decision to accept the claim for the specified cancer (provided all criteria are met) under Part B and Part E and to grant medical benefits only under Part B for the underlying non-specified primary cancer. The decision should explain that causation for the non-specified primary cancer has not been established and a Part E decision regarding that cancer, along with any associated award of lump sum compensation, is deferred. The CE would proceed to code ECMS with the appropriate recommended decision coding along with the status code “SER” (SEC Recommended Acceptance) with the “102- Rvwd per Bulletin 11-02, Ames Laboratory SEC (1/1/55 – 12/31/60)” reason code (as described in item #9 above). In ECMS B both the primary and secondary cancers are coded as “A” (Accepted), while in ECMS E the specified secondary cancer is accepted and the non-specified primary cancer remains as “R” (reported) in the medical condition status field of the medical eligibility screen.
For purposes of then determining Part E compensability for the reported primary non-specified cancer, concurrent action would be taken to assess the evidence linking the cancer to toxic substance exposure, along with a NRSD to NIOSH for a dose reconstruction to address causation due to occupational radiation exposure. Once the issue of causation is resolved, a recommended decision is issued under Part E. If causation is established, the Part E recommended decision accepts the primary non-specified cancer and the CE codes the medical condition status as “A” (Accepted) in ECMS E. If, however, causation is not established, the Part E recommended decision denies causation for the cancer and the CE codes it as “D” (Denied) in the medical condition status in ECMS E; there is no need to address medical benefits under Part E as benefits under Part B were previously granted.
12. If a claim 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 the SEC class, the case is reopened. In the exercise of the DEEOIC Director’s discretion in the reopening process, the Director is delegating limited authority to the four District Directors and the Assistant District Directors (ADDs), at the discretion of the District Director, to sign the Director’s Orders for reopening of these cases. This delegated authority is limited to reopenings based upon evidence that an Ames Laboratory employee meets the criteria for placement into the Ames Laboratory SEC class as defined by this Bulletin. This delegated authority extends to any case potentially affected by this SEC class. However, if the District Director or ADD 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 as Attachment 4. 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.
13. For those cases which are reopened under the authority granted in this Bulletin, the District Director or ADD 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 or ADD is also reopening Part E, an “MN” code is also entered into ECMS E. For all reopenings per this Bulletin, upon completing the Director’s Order to reopen the claim, the District Director or ADD 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 Director’s Order. Please note that while the “MD” code is generally input by National Office staff, entry of this code has been delegated to the District Director or ADD, just as the authority to grant reopenings has been delegated in this specific circumstance.
14. In addition to the usual final decision coding, when a final decision to grant benefits based on inclusion in an SEC class is issued, the FAB CE/HR must enter the code “SEF” (SEC Final Acceptance) into the claim status history. This code represents that an SEC acceptance is included in the final decision being issued. This code is entered with the same status effective date as the final decision (it doesn’t matter which one is entered first).
When the “SEF” code is entered, a reason code must be entered to reflect which SEC class the acceptance is based on. If the acceptance is based on this Ames Laboratory SEC, the reason code selected will be “102– Rvwd per Bulletin 11-02, Ames Laboratory SEC (1/1/55 - 12/31/60)”.
If the SEC acceptance being rendered is based on inclusion in more than one SEC class, then more than one “SEF” code will need to be entered so that the reason codes selected will represent all SEC classes leading to the acceptance. See the example outlined in Action #9 regarding “SER” coding for more than one SEC class. The FAB CE/HR would also need to enter the final decision code(s) with the same status effective date as the “SEF” codes.
If FAB remands a case that the district office had recommended for an SEC acceptance and had coded “SER”, there is no need for the “SER” code to be removed, as it reflects the language in the recommended decision that was issued on that date. Similarly, if a final decision is vacated on an SEC final decision to accept where “SEF” has been coded, there is no need to remove the “SEF” code, as it reflects the language in the final decision that was originally issued.
15. Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending Ames Laboratory cases that have a recommended decision to deny. All cases on the comprehensive list identified in Action #2 that are located at a FAB office must be reviewed for possible inclusion in the SEC class. If the employee worked at the Ames Laboratory during the period specified, 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 CE or FAB staff member enters status code “F6” (FAB Reversed to Accept) with the appropriate reason code into ECMS B to reflect the FAB reversal with a status effective date equal to the date of the final decision to approve. The CE or FAB staff person enters status code “SEF” (SEC Final Acceptance) into ECMS B with the status effective date equal to the date of the final decision to approve. There is no need to enter the “SER” (SEC Recommended Acceptance) code with the recommended decision because the recommended decision was not an SEC acceptance.
If no action is required, FAB must follow the instructions specified in Action #15, 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 the FAB determines that the case cannot be approved based on the new SEC designation and that re-referral to NIOSH is appropriate (see Action #10), the CE or FAB staff member remands 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. Remember, the existing “SER” code does not need to be removed.
16. If, after review or further development, the CE or FAB staff member determines that a case on the list does not require any action, the CE or FAB staff member must write a brief memo to the file indicating that the file was reviewed and noting 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 there is no need to return it to NIOSH for partial dose reconstruction.
The CE must code “NA” (No Action Necessary) and then 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 only because the SEC review list is derived from Part B data. For Ames Laboratory cases that were reviewed under this Bulletin and require no additional action, the reason code that must be selected is “102- Rvwd per Bulletin 11-02, Ames Laboratory SEC (1/1/55 – 12/31/60) 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 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-102” code is not entered initially. The “NA-102” 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 partial dose reconstruction. For those cases on the DEEOIC list that were not withdrawn from NIOSH, the CE enters the “NA-102” code only after the CE determines that the case does not meet the SEC criteria. These cases remain at NIOSH for completion of a partial dose reconstruction.
Please note that if the CE discovers that the claimant(s) is/are deceased, the CE must still enter the “NA-102” code in addition to the closure code. The status effective date for the “NA” coding is the date of the memorandum to file.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
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, Resource Centers and District Office Mail & File Sections