EEOICPA BULLETIN NO. 12-01

 

Issue Date:        March 7, 2012

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Effective Date:    March 7, 2012

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Expiration Date:   March 7, 2013

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Subject: Chronic Lymphocytic Leukemia (CLL) as a Radiogenic Cancer under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA).

 

Background: The Department of Health and Human Services (HHS) develops guidelines, by regulation, to be used by the Division of Energy Employees Occupational Illness Compensation (DEEOIC) to assess the likelihood that a worker with cancer developed that cancer as a result of exposure to radiation in performing his or her duty at a Department of Energy (DOE) facility or an atomic weapons employer facility. The guidelines are published in 42 C.F.R. Part 81, and comprise a set of policies and procedures by which DEEOIC determines whether it is “at least as likely as not” that the cancer of an employee was caused by radiation doses the employee incurred while employed at a covered facility. Currently, CLL is designated as a non-radiogenic cancer, which required DEEOIC to assign a probability of causation value of “zero.” On February 6, 2012, HHS published a final rule removing that designation. Therefore, effective March 7, 2012, claimants with CLL will be eligible for radiation dose reconstruction under the EEOICPA. 

 

References:  42 C.F.R. Part 81.

 

Purpose:  To provide procedures on processing claims for CLL.

 

Applicability:  All staff.

 

Actions:

 

1.               This bulletin addresses claims previously denied, claims pending adjudication (including those at NIOSH), and claims yet to be submitted.

 

2.               The DEEOIC will prepare a comprehensive list of cases (to include those cases identified by NIOSH) with a diagnosis of CLL (ICD-9 code 204.1 through 204.19).  The list includes all cases with a non-approved CLL diagnosis.  All cases on the list must be reviewed by the district office(s) and by the Final Adjudication Branch (FAB) to ensure that it is referred to NIOSH for a dose reconstruction or rework of the dose reconstruction, where appropriate.  The comprehensive list will be provided to the district offices and FAB under separate cover.

 

3.               For all cases on the comprehensive list that were previously denied with a “zero” percent probability of causation value assigned to the CLL, the claim for CLL is to be 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 (DD) and the Assistant District Directors (ADD), to sign Director’s Orders for reopening of all CLL related cases.  This delegated authority is limited to reopening those cases that appear on the comprehensive list.  If the DD or ADD identifies a case that is not on the comprehensive list but has a diagnosis of CLL (with an ICD-9 code referenced in the previous paragraph), the case should be referred to the National Office.  A sample Director’s Order is provided in Attachment 1.  The 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 any further development and issuance of a new recommended decision.

 

4.              Upon reopening the claim for CLL, the district office is to refer the case to NIOSH for a dose reconstruction or rework of the dose reconstruction, as appropriate.  When referring these cases to NIOSH for further analysis, a request to the National Office Health Physicist is not required.  Instead, the CE should prepare a NIOSH Referral Summary Document (NRSD) or Amended NIOSH Referral Summary Document (ANRSD), as appropriate, and forward the NRSD or ANRSD to the Public Health Advisor (PHA) assigned to the district office at NIOSH. The referrals to NIOSH should be conducted in accordance with EEOICPA Procedure Manual Chapter 2-0900 and must be recorded in ECS using the NIOSH causation path.

 

5.   For those claims where the dose reconstruction yields a combined probability of causation (PoC) of less than 50%, the district office is to issue a new recommended decision addressing CLL only.  However, should the dose reconstruction yield a combined PoC of 50% or greater, the district office will reopen all cancers that were previously denied based on the PoC in accordance with Action Item #3.  The district office will then issue a new recommended decision addressing all cancers.

 

6.   For cases currently pending a final decision at the FAB with a less than 50% PoC, the Hearing Representative/Claims Examiner (CE) is to remand the recommended decision to the district office in the usual manner.  The Remand Order should direct the district office to refer the case to NIOSH for a dose reconstruction or rework of the dose reconstruction as a result of the designation of CLL as a radiogenic cancer. Once the case is remanded, the district office is to refer the case to NIOSH as instructed in Action Item #4.

 

7.   For those cases currently at NIOSH that have CLL, DEEOIC has been notified that NIOSH will conduct the dose reconstruction to include the CLL.

 

8.   Upon receipt of the dose reconstruction report from NIOSH, the CE proceeds in the usual manner and prepares a recommended decision. 

 

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

 

 

 

 

RACHEL P. LEITON

Director, Division of Energy Employees

Occupational Illness Compensation

 

Attachment 1

 

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