EEOICPA BULLETIN NO: 14-03
Subject: Handling Requests for Communication Assistance, Accommodations, and Modifications under the Federal Disability Nondiscrimination Law by Claimants and Others in the Division of Energy Employees Occupational Illness Compensation (DEEOIC) Adjudicatory Process.
Background: The Office of Workers’ Compensation Programs (OWCP) has long been committed to facilitating effective communication with claimants regarding decisions and other actions in each individual case. Consistent with its responsibilities under applicable Federal disability nondiscrimination laws, with its mission, and with the additional emphasis on the employment of individuals with disabilities as reflected in Executive Order 13548 (issued July 26, 2010), the DEEOIC is issuing this Bulletin to inform DEEOIC officials and personnel of their responsibilities under the Federal disability nondiscrimination law (including but not limited to the Rehabilitation Act Section 504 obligations, which applies to Federally-conducted programs or activities). This Bulletin explains the type of notice the DEEOIC is required to provide to claimants about its responsibilities under the Federal disability nondiscrimination law. This Bulletin also describes the procedures that must be used for handling requests from claimants needing communication assistance, or reasonable accommodations/modifications in the claims process. Finally, it sets forth requirements regarding conducting hearings, medical appointments, and other in-person interactions in accessible facilities.
The District Office should handle requests for communication assistance or reasonable accommodations/ modifications for claimants with disabilities as a high priority action item. Because the OWCP, and thus the DEEOIC, bears a high burden for justifying any failure to provide requested assistance, the District Office should immediately contact the National Office if it has questions or concerns regarding how to comply with the applicable requirements.
For purposes of disability nondiscrimination law and the obligations discussed in this Bulletin, a "disability" is defined as a physical or mental impairment that substantially limits one or more of a claimant's, or other individual's, major life activities. The obligations and procedures discussed in this Bulletin apply to requests related to all medical conditions that can be considered impairments, including conditions that are not employment-related or conditions that may have developed subsequent to the filing of the claim.
In addition to its duty to provide communication aids and services and reasonable accommodations for persons with disabilities, the DEEOIC must reasonably modify its policies, practices, and procedures when necessary to avoid discrimination on the basis of disability. It is also obligated to conduct its programs and activities so that each part of a program or activity is accessible to individuals with disabilities.
Communicating effectively with, providing other types of appropriate assistance and accommodations/modifications for, and ensuring that all aspects of the claims process are accessible to claimants with varying types of disabilities (including visual impairments) are not only consistent with the non-adversarial nature of the DEEOIC adjudicatory process, but are also required by Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) (Section 504), which applies to Federally-conducted programs or activities. In addition, in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which amends the Rehabilitation Act as well as other Federal disability nondiscrimination laws, Congress emphasized that the definition of disability "shall be construed in favor of broad coverage of individuals to the maximum extent permitted by [the terms of the applicable law]," and generally shall not require extensive analysis. Therefore, when responding to a request for assistance, the DEEOIC should focus its attention primarily on how to assist the claimant (or other individual with a disability) most effectively, rather than on whether the individual is, in effect, "disabled enough" to deserve the assistance.
Both applicable law and Department of Labor policy require the OWCP’s DEEOIC to communicate as effectively with persons who have disabilities as the agency communicates with other persons. The DEEOIC bears the general responsibility for providing communication aids and services for claimants with disabilities, and for ensuring that the aids and services provided to each individual claimant with a disability are effective for that particular claimant. The obligation to provide equally effective communication applies to the written letters and decisions that the DEEOIC generally provides in paper format, telephonic communications, and all other modes of communication.
Finally, the legal duty to provide accommodations/modifications, and to conduct hearings and other in-person interactions in accessible facilities, applies to all phases of the claims process.
Applicability: All National Office, District Office and Final Adjudication Branch personnel, nurses, and medical billing processors.
References: 29 U.S.C. § 794; 29 U.S.C. § 705; 42 U.S.C. § 12102. Note that the ADAAA amended the statutory definition of "disability" for purposes of disability nondiscrimination law (referred to in the Background section above) to broaden that definition and provide rules for construing it. See 29 U.S.C. § 705(20)(B), incorporating by reference the definition of "disability" set forth in 42 U.S.C. § 12102. For further information about the definition of "disability," as amended by the ADAAA, and guidance on interpreting that definition, see the website of the U.S. Equal Employment Opportunity Commission (EEOC), available at: http://www.eeoc.gov/laws/statutes/adaaa_info.cfm.
The EEOC published a Final Rule in March 2011 that explains in detail how to interpret the definition of "disability" and its component elements; it has also published a fact sheet and Questions and Answers sheet regarding the provisions of the Final Rule. These documents are available at the EEOC web page cited above. Please note that although the EEOC regulations are not directly applicable to the DEEOIC, the DOL's interpretation of the disability nondiscrimination laws it enforces must be consistent with the EEOC's interpretation of Title I of the Americans with Disabilities Act (ADA); therefore, the EEOC's regulations and guidance documents are useful tools for learning about the OWCP’s and the DEEOIC’s disability-related legal obligations.
Purpose: To advise the DEEOIC and related personnel of their responsibilities, and of the DEEOIC’s procedures, for taking certain actions related to disability. These actions include responding to requests by claimants and others for auxiliary aids and services to ensure equally effective communication ("communication aids and services"), or for reasonable accommodations/modifications, on the basis of disability. They also include taking appropriate steps to ensure that all in-person interactions are accessible to persons with disabilities.
I. General Principles Re: Requests for Communication Aids and Services and Reasonable Accommodations/Modifications
Although this Bulletin primarily addresses requests from claimants needing communication assistance and/or accommodations/modifications under applicable Federal disability nondiscrimination laws, these instructions also apply where an employing agency official, a representative, or anyone else legitimately associated with the claims process requires communication aids and services, or reasonable accommodations/modifications. Where a specific type of accommodation has been requested, the CE/HR is to determine the type of accommodation required and provide the accommodation as is outlined in this Bulletin.
All DEEOIC personnel must be sensitive to the potential needs of the claimant population and must realize that the law permits claimants to request communication aids and services, and/or reasonable accommodations/modifications, at any stage of the claims process. A claimant who did not need such aids, services, or accommodations/modifications at the initial stages of a claim may later develop a disability requiring one or more of these types of assistance. Under the law as amended by the ADAAA, a person who does not have an actual, current disability, but who has a record of a disability (for example, someone who has recovered from cancer or heart disease), is entitled to reasonable accommodations under appropriate circumstances.
Because the same medical condition may affect each person differently, requests for communication aids and services and/or accommodations/modifications must be analyzed on a case-by-case basis, and actions appropriate to each individual person with a disability will vary. For example, not every person who is deaf understands American Sign Language (ASL). Some deaf persons rely on lip reading, frequently combined with computer-assisted real-time (CART) transcription; others understand Signed English (which has a different syntax from ASL); and still others understand other sign languages, such as Spanish Sign Language. Information on how to respond to each type of request (for communication aids and services, and for accommodations/modifications) appears in Section III below.
All DEEOIC personnel should know the procedures for responding to requests for communication aids and services and/or accommodations/modifications. Each District/FAB Office should have at least one designated point of contact (POC) who is responsible for facilitating responses to such requests, and who is knowledgeable about the relevant procedures, law and policy. Any personnel within that District/FAB Office should reach out to the designated POC should a question arise. As needed, DEEOIC personnel may also consult with the Branch of Policy which may seek out resources available in other DOL agencies or other appropriate Federal agencies. For example, DOL's Office of Disability Employment Policy (ODEP) has a Technical Assistance Center called the Job Accommodation Network (JAN) which may be able to assist with interactive services to help determine what accommodations are appropriate for a specific person.
Upon receipt of a request for disability-related communication aids and services or reasonable accommodations/modifications, the DEEOIC personnel must take immediate action. The first step will be to contact the District/FAB Office POC for that person’s office.
Once the DEEOIC determines that an accommodation is required under the particular circumstances, the District/FAB Office POC is to change the case number bar on the top of the case summary screen and the left side navigation panel in the Energy Compensation System (ECS) to purple so that anyone reviewing the case will immediately understand that special handling is required. To do this, the POC will select the “Edit Section 504 Indicator” from the “Case Summary” screen in ECS, select “504 Enabled” from the “Section 504 Indicator” pop-up, and click “Ok.” Once this is completed, the Navigation Panel will be purple. The OWCP Imaging System (OIS) will automatically update the heading with the same color.
II. Notice to Claimants
Federal disability nondiscrimination law defines a "disability" as a physical impairment (such as cancer, diabetes, or epilepsy) or a mental impairment (such as autism, bipolar disorder or post-traumatic stress disorder) that substantially limits one or more of the person's major life activities.
The DEEOIC will provide notice to claimants that: if they have such a disability, they may request that the DEEOIC provide them with communication aids and services and/or accommodations/modifications; a claimant who has a record of such a disability is also entitled to receive reasonable accommodations under appropriate circumstances; and the DEEOIC will respond to all requests for the above types of assistance as required by Federal law.
Effective immediately, all correspondence, including recommended and final decisions, shall include the following language, bolded, in the footer of the first page of all correspondence sent to all claimants and Authorized Representatives:
If you have a disability (a substantially limiting physical or mental impairment), please contact our office/claims examiner for information about the kinds of help available, such as communication assistance (alternate formats or sign language interpretation), accommodations and modifications.
See Attachment 1 as a sample of where this statement should be placed in all documents.
III. Responding to Requests for Assistance
This section explains how to respond to two different types of requests. Subsection A addresses requests for auxiliary (communication) aids and services, while Subsection B addresses other types of requests for individualized assistance. Requests in the latter category should be considered requests for reasonable accommodations and/or modifications as further explained in subsection B.
A. Requests for Auxiliary (Communication) Aids and Services. The DEEOIC will provide appropriate communication assistance for claimants with disabilities at all stages of the claims process. The circumstances under which communication assistance is provided extend to claimants' interactions with DEEOIC staff (including Resource Center personnel), physicians, and other healthcare service providers. Appropriate assistance is provided regardless of the method of contact -- whether by telephone, postal mail, in person, or some other method.
The type of communication aids or services necessary to ensure effective communication will vary with the type of communication used by the individual with a disability; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. When deciding what communication aids or services to provide in response to a request from a claimant or other person with a disability, the DEEOIC must honor the choice of the person with a disability, unless the DEEOIC can demonstrate that either: (a) another means of communication exists that will be effective for the particular person with a disability; or (b) use of the means chosen by the person with a disability would result in a fundamental alteration in the nature of the DEEOIC program. In addition, to be effective, communication aids and services must be provided by methods that are usable and/or understandable by the individual with a disability; in a timely manner; and in such a way as to protect the privacy and independence of the individual with a disability.
The requirement to consider each request for communication assistance individually does not prohibit the DEEOIC from preparing for such requests in advance so that it may respond quickly. Examples:
1. Persons with visual impairments. Blind or visually impaired persons frequently ask for the following types of alternate formats for documents in standard print:
Standard print and follow-up telephone call
b. Braille and standard print
c. Microsoft or text file on a CD
Audio CD and standard print
e. Large print (18 point) and/or high contrast type (such as bold)
Each DEEOIC office should be prepared to provide documents in each of the above formats when requested. The DEEOIC National Office will identify one or more sources for producing documents in Braille and, if appropriate, on audio CD, and will inform each District/FAB Office of the turnaround time and procedures for submitting such requests. The District Office/FAB is to supply its own large-print or high-contrast documents, and should ensure that enough staff members know the appropriate computer and printer settings to permit such documents to be produced at any time, without delay.
If a person with a visual impairment requests that a document be provided in Braille, audio CD, or data CD/Microsoft Word on CD, all best efforts should be made to ensure that the document has been provided in the format requested. If the claimant also asks for the document to be provided in the usual format (paper or imaged file), it is permissible to supply that format as well.
2. Persons with Hearing Impairments
a. In-person contacts: If sign language interpreting services are necessary, they may be provided in person or through remote Video Interpreting Services.
Interpreters must be qualified. Under Federal disability nondiscrimination law, an interpreter is qualified if s/he is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. The law prohibits the DEEOIC from requiring an individual with a disability to bring another person to interpret for him/her, whether that individual is a claimant, an employing agency official, a representative, or someone else who is legitimately associated with the claims process.
In circumstances in which it is permissible for a claimant or other individual with a disability to be accompanied by another adult during in-person contacts, the DEEOIC must not rely on that adult to interpret, or to otherwise facilitate communication, except: in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication; the accompanying adult agrees to provide such assistance; and reliance on that adult for such assistance is appropriate under the circumstances.
b. Telephone contacts in general. The DEEOIC will provide a dedicated phone line for telephone contact with individuals whose disabilities limit their capacity to use voice telephones. The dedicated number will be available on the DEEOIC website, and publicized in other ways. Additional information about the Federal Relay Service and the types of telecommunications services it offers is available at: http://www.gsa.gov/portal/content/104626.
c. Hearings. The Final Adjudication Branch (FAB) is responsible for providing appropriate communication aids and services for hearings, and for notifying claimants and other appropriate parties that such aids and services are available. For example, for in-person oral hearings before a FAB representative, the FAB must provide sign language interpreters, CART transcription services, or other types of communication assistance upon request. When deciding what type of communication aids or services to provide, the FAB must give primary consideration to the request of the individual with a disability.
3. District Office/FAB Actions. All District Office/ FAB POCs will be provided with a list of companies that can be used to provide assistance with sign language interpretation. The District Office/FAB POC is not restricted to the use of these companies and can utilize other companies in their jurisdiction if necessary. The District Office/FAB POC will also be provided with the contact information for converting documents to Braille, audio CD, and large print.
Upon receipt of notification that a claimant requires an accommodation due to a visual or hearing impairment, the CE/HR, or any claims staff that receives a request, is to:
a. Complete the required checklist (Attachment 2) for incoming requests for accommodations. The checklist contains a list of questions used to collect preliminary information such as the employee name, the relationship of the caller to the DEEOIC, the type of disability, and the type of accommodation that is being requested.
b. Upon completing the checklist, it is to be bronzed into OIS under category “Other” and subject of “Accommodations Request.” The CE/HR then assigns the request to the District Office/FAB POC for handling. The POC should request that his/her supervisor designate them as an “Authorized User” for the case for a time period appropriate for the actions needed.
c. Once the POC receives OIS notification that an accommodation has been requested, the case number bar on the top of the case summary screen and the left side navigation panel in the ECS will change to purple so that anyone reviewing the case will immediately know that special handling is required. To do this, the POC will select the “Edit Section 504 Indicator” from the “Case Summary” screen in ECS, select “504 Enabled” from the “Section 504 Indicator” pop-up, and click “Ok.” Once this is completed, the Navigation Panel will turn purple. The OWCP Imaging System (OIS) will automatically update the heading with the same color.
d. The POC then determines the type of accommodation that is needed and makes the appropriate arrangements. Specifically, the POC is to secure the services for a specific date, time and location if sign language interpretation is needed, or contact the National Office for documents that need converting to Braille, audio CD or other format.
e. Upon making arrangements for an accommodation, the POC is to document the information in the notes section of ECS under the Note Type “Accommodations Request.” In the notes field, the POC must indicate who is requiring the accommodation (claimant, AR, etc.), the type of accommodation that is required, the name of the company that has been hired to conduct the service, and the date and time that service is to be utilized, as appropriate.
f. The POC notifies the company that all invoices for services are to be sent to the National Office for payment.
g. Once the accommodations have been made, the POC sends an email to the CE/HR assigned to the case, advising him/her that the accommodation has been made. A copy of the email is to be bronzed into OIS.
B. Requests for Accommodations/Modifications
Claimants and other persons associated with the claims process who have disabilities may request a wide range of adjustments or changes to the process because of their disabilities. Such requests constitute requests for reasonable accommodation or modification, and they automatically trigger the DEEOIC's or the OWCP's duty to act.
1. To request an accommodation or modification, all that the individual with a disability (or someone acting on his/her behalf) must do is notify the claims examiner, hearing representative, or someone else associated with the DEEOIC or the OWCP, that s/he needs an adjustment or change in the claims processing procedures for a reason related to a disability.
2. The individual may use "plain English": s/he need not mention disability law or use technical language such as "reasonable accommodation" or "reasonable modification of policies, practices, or procedures."
3. The request does not need to be in writing; it may be made during a conversation, or through any other mode of communication. DEEOIC staff should be alert to such requests, and should recognize their legal and practical significance. The law permits DEEOIC personnel to write a memorandum or letter confirming the individual's request but it is not required. Regardless, the initial request triggers the DEEOIC's and OWCP's duty to take action, and cannot be ignored pending receipt, completion, or processing of written confirmation.
4. When the DEEOIC receives a request for an accommodation/modification as described above, it may simply provide the requested assistance. Otherwise, the District Office/FAB POC should engage in an informal dialogue with the individual with a disability (and/or his/her representative) to clarify what the individual needs and identify the appropriate reasonable accommodation/modification. The exact nature of the dialogue will vary depending upon the circumstances.
a. In many instances, both the disability and the type of accommodation/modification required will be obvious; thus, there may be little or no need to engage in any discussion.
b. In other cases, the District Office/FAB POC may need to ask questions concerning the nature of the disability and the individual's functional limitations in order to identify an effective accommodation or modification.
c. The individual with a disability does not have to be able to specify the precise accommodation or modification needed. However, s/he (or his/her representative) does need to describe the barriers s/he is encountering in the claims process or the way it is implemented.
d. Even if the individual with a disability cannot identify a specific accommodation or modification, s/he may be able to offer suggestions about the type, or general characteristics, of reasonable accommodations/modifications that will help overcome the barrier.
5. Once the District Office/FAB POC ascertains the specific limitations imposed by the disability and barriers imposed by the claims process, the POC arranges the appropriate accommodations required.
6. Under the law, the DEEOIC is permitted to ask for documentation to support a request for accommodation/modification only in the following circumstances: either the disability itself or the need for an accommodation/modification is not obvious, and the information already in the DEEOIC 's possession is insufficient to confirm that the individual has a substantially limiting impairment or needs an accommodation or modification (in the case of a claimant, the information may already be in the individual's file).
7. In some circumstances, it will be appropriate for the DEEOIC to make adjustments or provide assistance without waiting for a specific request. For example, if the DEEOIC knows that a claimant has mobility impairments (for example, uses a wheelchair, walks only short distances with the use of a cane or walker, or has respiratory or cardiac-related restrictions on walking), it is entirely appropriate -- as well as good customer service -- for the District Office/FAB POC to take the initiative to schedule in-person meetings with the claimant in locations that minimize the distance the claimant must walk or propel his/her chair.
IV. Physical Accessibility
The DEEOIC is obligated to conduct its program and activities so that when each part of a program or activity is viewed as a whole, that part is fully accessible to individuals with disabilities, including those with mobility impairments. Because not every facility associated with the claims process is required to satisfy the full array of accessibility standards adopted by the General Services Administration (GSA) for Federal facilities, the OWCP/DEEOIC is implementing the following accessibility-related policy: ALL IN-PERSON INTERACTIONS MUST BE HELD IN ACCESSIBLE LOCATIONS. Such interactions include, but are not limited to: any meetings with a DEEOIC employee; medical examinations; and all in-person hearings before the DEEOIC’s FAB.
Whether a particular location or facility may be considered "accessible" will be determined pursuant to the accessibility standards that are applicable to Federal facilities (as well as to facilities designed, built, altered, or leased with Federal financial assistance). See http://www.access-board.gov/aba/index.htm.
Disposition: Retain until incorporated into the Federal (EEOICP) 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, and District Office Mail & File Sections