2014 FECA Bulletins which have previously been issued by the DFEC but have since expired or been superseded by another Bulletin, Circular or inclusion in the FECA Procedure Manual.
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Bulletin |
Subject |
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Administering Benefits Based on Same Sex Marriage Following Windsor |
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Reimbursement of Travel Expenses for Claimants and Providers Providing Transportation Services |
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Compensation Pay - Consumer Price Index (CPI) Cost-of-Living Adjustments for March 1, 2014 |
Attention: This bulletin has been superseded and is inactive.
FECA BULLETIN NO. 14-01
Issue Date: December 12, 2013
Subject: Administering Benefits Based on Same Sex Marriage Following Windsor.
Background: As Secretary Thomas Perez observed, the Supreme Court's decision in United States v. Windsor, which struck down the provisions of the Defense of Marriage Act (DOMA) that denied federal benefits to legally married, same sex couples, represents a historic step toward equality for all American families.
On June 26, 2013, in United States v. Windsor, the U.S. Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. Section 3 of DOMA limited the definition of spouse to a person of the opposite sex who is a husband or wife, and as a result, augmented FECA compensation was not available based on a claimant's same sex spouse. The Office of Workers' Compensation Programs (OWCP) has begun to implement this ruling. Benefits under the Federal Employees' Compensation Act (FECA) impacted by Windsor include augmentation of compensation (5 U.S.C. § 8110), survivor benefits (5 U.S.C. § 8133), beneficiaries of schedule awards unpaid at death (5 U.S.C. § 8109), and payment of the FECA death gratuity to a spouse (5 U.S.C. § 8102a).
The FECA program's long held position as set forth in FECA Program Memorandum No. 156 (issued May 30, 1972) explicitly provides: "The validity of a marriage is determined by the law of the jurisdiction where the marriage took place." [Emphasis added.] Therefore, an employee or claimant legally married to a same sex spouse is entitled to any and all FECA benefits that would be extended based on a valid marriage regardless of their place of residence or domicile. The same principles apply to surviving spouses and stepchildren of same sex marriage.
There are numerous places in the FECA, its implementing regulations and procedures that include gender-neutral terms that refer to marital status, such as "spouse," "surviving spouse," "marriage," and "married." These terms will be read to include an individual married to a person of the same sex if the couple is lawfully married under the law of the jurisdiction where the marriage took place. The term "marriage" will be read to include a marriage between individuals of the same sex. This is the most natural reading of those terms and is consistent with Windsor, in which the plaintiff was seeking a benefit under a statute that used the term "spouse." See 133 S. Ct. 2675, 2683 (2013).
FECA also uses the terms "widow" and "widower," which are defined in a gender-specific manner. FECA provides that: "'widow' means the wife living with or dependent for support on the decedent at the time of his death, or living apart for reasonable cause or because of his desertion," 5 U.S.C. § 8101(6), and "'widower' means the husband living with or dependent for support on the decedent at the time of her death, or living apart for reasonable cause or because of her desertion," 5 U.S.C. § 8101(11). "Husband" and "wife" are also used in the statute, but are not defined. See 5 U.S.C. §§ 8101, 8110, 8133. In light of Windsor, the terms "widow," "widower," "husband," and "wife" as used in FECA will also be interpreted to include same-sex spouses. This interpretation avoids serious constitutional questions that an alternate reading would create and is permitted by the text and purposes of FECA.
The Fifth Amendment analysis in Windsor raises serious doubts about the constitutionality of Federal laws that confer marriage benefits and burdens only on opposite-sex married couples. In Windsor, the Court explained that Section 3 "departs from [a] history and tradition of reliance on state law to define marriage" by creating a category of "second-class marriages for purposes of federal law." 133 S. Ct. at 2692, 2693-94. The Court concluded that Section 3 thus "violates basic due process and equal protection principles" by "impos[ing] a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States." Id. at 2693. Interpreting the gender-specific terms in FECA to categorically exclude same-sex couples arguably would have the same effect of diminishing the stability and predictability of legally recognized same-sex marriages. Thus, the canon of constitutional avoidance counsels in favor of interpreting the gender-specific terms in FECA to refer to same-sex spouses and couples.
The text and purpose of FECA also permit a gender-neutral construction of "widow," "widower," "husband," and "wife." The Dictionary Act, 1 U.S.C. § 1, provides, in part, that when "determining the meaning of any Act of Congress, unless the context indicates otherwise,...words importing the masculine gender include the feminine as well." The purpose of this provision was to avoid having to "specify males and females by using a great deal of unnecessary language when one word would express the whole." Cong. Globe, 41st Cong., 3d Sess. 777 (1871) (statement of Sen. Trumbull, sponsor of Dictionary Act). This provision has been read to require construction of the phrase "husband and wife" to include same-sex married couples, see Pedersen v. Office of Personnel Mgmt., 881 F. Supp. 2d 294, 306-07 (D. Conn. 2012). The Dictionary Act thus supports interpreting the terms "husband" and "wife," as well as the gender-specific pronouns in FECA used to define "widow" and "widower" in a gender-neutral manner "unless the context indicates otherwise." 1 U.S.C. § 1. "'Context'" for purposes of the Dictionary Act "means the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts." Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 199 (1993).
Here, nothing in the surrounding text of the FECA statute forecloses a gender-neutral reading of the gender-specific terms. Other considerations also strongly support this interpretation. A gender-neutral reading of FECA fosters fairness by ensuring that same-sex married couples are treated in the same manner as similarly situated opposite-sex married couples.
For the most part, the Division of Federal Employees' Compensation's (DFEC's) existing practices and processes will simply apply to the granting of these benefits based on a valid same sex marriage. However, OWCP anticipates that during the initial phases of implementing Windsor, an increase in applications for FECA benefits based on same sex marriage may well occur. If there is a question about the validity of the marriage, OWCP personnel should consult with their supervisors (who may consult with the Office of Solicitor program counsel if needed) before requiring additional documentation. Claimants who are in a same sex marriage should not be required to provide a higher level of detailed documentation than claimants who are in an opposite sex marriage.
The Office of Personnel Management (OPM) has announced that it will extend health and other benefits to Federal employees and annuitants who have legally married a spouse of the same sex. As such, OWCP's administration of FEHB health and other benefits for our FECA claimants is also impacted. Guidance is available from OPM http://www.chcoc.gov/transmittals/TransmittalDetails.aspx?TransmittalID=5700 and assistance is also available from the DFEC fiscal office if necessary.
Purpose: To inform Office of Workers' Compensation (OWCP) Division of Federal Employees' Compensation (DFEC) personnel of procedures for granting benefits where federal employees/claimants have legally married a spouse of the same sex.
References: United States v. Windsor, 133 S. Ct. 2675 (2013); 5 U.S.C. §§ 8101, 8102a, 8105, 8106, 8109, 8110, 8133 and 8141. See 20 C.F.R. 20 C.F.R. 10.5 (cc) (defining husband or wife as surviving spouse); 20 C.F.R. 10.7 (referencing widow/widower in Form CA5; 20 C.F.R. 10.405 (referencing husband or wife); 20 C.F.R. 10.414 (referencing widow); 20 C.F.R. 10.707 (referencing husband and wife); FECA Procedure Manual Part 2-0200-2 (general provisions); Manual Part 2-0700-7 (death claims/survivor benefits); Manual Part 2-0700-21 (death gratuity); Manual Part 2-0901-12 (compensation rates/spouse).
Applicability: Appropriate National Office and District Office personnel.
Actions:
A. Granting of Augmented Compensation
FECA provides a basic rate of compensation for disability equal to 66 2/3 percent of the injured employee's pay. 5 U.S.C. §§ 8105, 8106. Where the employee has one or more dependents as defined by the FECA, the employee is entitled to have basic compensation augmented at the rate of 8 1/3 percent, for a total of 75 percent of pay. 5 U.S.C § 8110 (b).
1. If a claimant applies for augmented compensation based on a same sex marriage, that claimant will be expected to supply proof of a valid marriage in the form of a marriage certificate to the same extent and in the same manner that any claimant would be expected to supply marriage proof. This proof will generally consist of a marriage certificate issued by a jurisdiction/state that recognizes same sex marriage.
2. A claimant seeking augmented compensation who has previously been married must produce proof of divorce.
3. Where a claimant previously precluded from seeking benefits based on Section 3 of DOMA establishes a same sex marriage, augmented compensation (if not previously granted due to the existence of another eligible dependent such as a child) will be granted retroactively back to the date of the valid same sex marriage or the triggering event for payment, whichever is later.
4. Consistent with DFEC historic practice, in cases where a CA-7 claim is received from the employing agency, the employing agency may assist in verifying marital status in the initial stages of the claim.
B. Survivor benefits
FECA provides survivor benefits to surviving spouses in accordance with a statutory formula set forth in 5 U.S.C. § 8133. The statutory percentage paid to a spouse differs based on whether there are dependent children.
1. Because Section 3 of DOMA has been declared unconstitutional, it is possible there are surviving same sex spouses whose entitlement post Windsor will reduce the payments made to surviving qualifying children. Any payment to a surviving same sex spouse who has established a valid marriage will be issued retroactive to the date of the employee's death.
2. Because the payments to the dependent children were legally correct at the time of payment, all adjustments to benefits due to the children will be prospective and no overpayments will be declared.
3. Under the definition of child under FECA (5 U.S.C. § 8101 (9)), the stepchildren of same-sex married couples also qualify for survivor benefits.
Note: Because of the many ways that a death claim may be found timely (including a prior disability claim, or notice to the agency) under 5 U.S.C. § 8122, claims examiners are reminded that survivor claims impacted by Windsor should not reflexively be denied on the basis of time limitations and that the National Office should be consulted prior to denial of any survivor claim that involves a same-sex marriage.
C. Beneficiaries of schedule awards unpaid at death
Section 8109 of the FECA provides for the order or precedence of beneficiaries of schedule awards unpaid at the time of a claimant's death where an employee has filed a valid claim for a schedule award during his or her lifetime and where the employee dies from a cause other than the injury.
1. The order of precedence provided by 5 U.S.C. § 8109(a)(3)(D) is to the surviving spouse if there is no child; if there is both a surviving spouse and a child or children, one half to the spouse and the remaining half to the child or children. If there is no surviving spouse, payment is to the child or children. (Section 8109 then provides for payment to dependent parents and relatives thereafter if there is no surviving spouse and no surviving child.)
2. As with the survivor benefits discussed above, a surviving same sex spouse who has established a valid marriage will be issued his or her appropriate share, while any required adjustments to the payments to children will be prospective only and no overpayments will be declared.
3. As with survivor benefits discussed above, under the definition of child under FECA (5 U.S.C. § 8101 (9)), the stepchildren of a same sex married couple also qualify for survivor benefits.
D. FECA Death Gratuity
Section 8102a of the FECA provides for a death gratuity of $100,000 for the survivors of an employee who dies of injuries incurred in connection with the employee's service with an Armed Force in a contingency operation. Unless the order of precedence is varied by the designation of an alternate beneficiary, the gratuity is paid in full to a surviving spouse, if one exists. In cases where a claimant was previously precluded from seeking benefits based on Section 3 of DOMA, that payment may be made to a surviving same sex spouse where that spouse is able to establish a valid marriage.
Under 5 U.S.C. § 8102a(d)(6), if an employee has a spouse but designates a person other than that spouse to receive all or a portion of the FECA death gratuity, the employing agency is required to provide notice of the designation to the spouse. Accordingly, the agency will need to notify any same sex spouse if such a designation is made.
E. Administering Health (FEHB) and other Federal Benefits
Under the OPM guidance noted above, same sex spouses and children of same sex marriage are entitled to the same benefits as opposite sex spouses and children of opposite sex marriages.
Note: FECA authorizes certain payments conditioned upon the existence of a marriage. Prior to the Supreme Court's Windsor decision, OWCP was not able to recognize the legal marriages of same-sex couples. With the striking down of Section 3 of DOMA, OWCP can now treat same-sex marriages, same-sex spouses, and children of same-sex marriages as eligible for certain FECA payments. However, because FECA conditions these payments on the existence of a marriage, individuals in other kinds of relationships, such as civil unions and domestic partnerships (whether same-sex or opposite-sex), are still not eligible for FECA payments. FECA benefits also continue to be unavailable to all ex-spouses, whether same-sex or opposite-sex. See William S. Capeller, M.D., 28 ECAB 262, 264 (1977) (An ex-wife does not come within the definition of wife under FECA.)
Disposition: This bulletin is to be retained until the FECA Procedure Manual has been updated.
DOUGLAS FITZGERALD
Director, Federal Employees' Compensation
Back to Top of FECA Bulletin No. 14-01
Attention: This bulletin has been superseded and is inactive.
FECA BULLETIN NO. 14-02
Issue Date: January 29, 2014
Subject: Reimbursement of Travel Expenses for Claimants and Providers Providing Transportation Services
References:
5 U.S.C. §8103 of the Federal Employees' Compensation Act (FECA) provides that an injured employee is entitled to receive medical services, appliances or supplies which a qualified physician prescribes or recommends and which OWCP considers necessary to treat the work-related injury. This section further provides that an employee may be furnished necessary and reasonable transportation and expenses incident to the securing of such services, appliances and supplies when authorized. See 5 U.S.C. 8103. This circular briefly describes the circumstances and limitations on authorizing and paying for transportation services.
Effective August 29, 2011, 20 CFR §10.315, provides in pertinent part as follows with regard to payment for transportation to obtain medical treatment:
(a) The employee is entitled to reimbursement of reasonable and necessary expenses, including transportation needed to obtain authorized medical services, appliances or supplies. To determine what is a reasonable distance to travel, OWCP will consider the availability of services, the employee's condition, and the means of transportation. Generally, a roundtrip distance of up to 100 miles is considered a reasonable distance to travel. Travel should be undertaken by the shortest route, and if practical, by public conveyance. If the medical evidence shows that the employee is unable to use these means of transportation, OWCP may authorize travel by taxi or special conveyance.
(b) For non-emergency medical treatment, if roundtrip travel of more than 100 miles is contemplated, or air transportation or overnight accommodations will be needed, the employee must submit a written request to OWCP for prior authorization with information describing the circumstances and necessity for such travel expenses. OWCP will approve the request if it determines that the travel expenses are reasonable and necessary, and are incident to obtaining authorized medical services, appliances or supplies. Requests for travel expenses that are often approved include those resulting from referrals to a specialist for further medical treatment, and those involving air transportation of an employee who lives in a remote geographical area with limited local medical services.
Background: The change to requiring suspension of the reimbursement request and referring the request for claims examiner review whenever the request involves more than 100 miles per day of mileage reimbursement (Section A below) was effective January 17, 2013. The additional procedures outlined in this Bulletin were effective July 17, 2013.
Purpose: The purpose of this Bulletin is to address the manner in which travel procedure codes will be processed and paid by the Central Bill Processing (CBP) system when submitted for authorized examinations/treatments.
Applicability: Appropriate National Office and District Office personnel and FECA medical billing contractor.
Action:
A. Mileage Reimbursement for Examinations/Treatment. Periodically and in certain situations, travel to authorized examinations and/or treatment could exceed the allowable 100 mile distance outlined in 20 CFR 10.315(a) as noted above. When a claimant submits a reimbursement request (on Form OWCP-957, Medical Travel Refund Request) in excess of 100 miles for a single date of service, the bill will be automatically suspended and the CBP provider will send notification to the claims examiner seeking authorization. The notification sent by CBP will include the applicable date(s) of service, as well as the miles being claimed.
1. If the request is for a single trip and the mileage claimed is allowable, such as for a scheduled Second Opinion (SECOP) or Independent Medical Examination (IME), the Claims Examiner (CE) will simply authorize the reimbursement.
2. In limited circumstances it may be necessary for a claimant to travel more than 100 miles on a regular basis, such as to be seen by his/her treating physician or therapist if the claimant lives in a remote area. Upon receipt of notification from CBP in these instances, the CE should provide a range for this ongoing authorization, including both total miles and period that the authorization covers. This range should be calibrated to the claimant's treatment location and can extend up to 900 miles and up to six (6) months in length, using Procedure Code A0080.
3. Should the claimant exceed the miles authorized within this period, the CE will again be notified by CBP. If such travel is medically necessary for the work-related conditions, the CE has the authority to authorize an extension of the mileage, but can only do so after writing a memo to the case file to justify the increased number of miles allowable.
4. If the need for increased mileage continues past the initial six month authorization period, another authorization and memo to the file is also required for an additional 6 month period. Such authorization and documentation is required every 6 months.
5. If the proper authorization is on file, or the requested mileage does not exceed 100 miles for a single date of service, the bill will simply be processed by CBP. There will be no need for a notification to be sent to the CE.
B. Incidental Charges. Periodically, a claimant could incur incidental charges that may exceed $75.00 while travelling to authorized examinations.
1. If the claimant requests reimbursement for any of the following procedure codes (including those that require prior authorization), and the charge exceeds $75.00, the system will post Edit 501 (Service exceeds Allowable amount, Original Receipt/Invoice of the charge is required).
A0110 – Taxi
A0120 – Mini Bus
A0130 – Wheel Chair Van
A0140 – Air Travel
A0170 – Tolls/Parking
A0180 – Lodging
A0190 – Meals
A0200 – Lodging Escort
A0210 – Meals Escort
2. If the receipt/invoice is present, a notification will be sent to the CE to obtain authorization for the amount. However if the receipt/invoice is not present, the service will be denied for Edit 501. CBP will not send a notification to the CE if there are no receipts attached; it will simply deny the charge.
3. If the claimant submits a request for reimbursement of "TRANS," and there is no description present for using this code or the description is equal to "GAS," the system will post Edit 520 (A description of the service is required. Please provide the description and resubmit. Gas is not covered.) and deny the charge since charges for gasoline are not permitted in addition to mileage reimbursement.
Note: Where a claimant has been denied authorization for treatment or reimbursement for expenses related to transportation, a formal decision with appeal rights will be issued upon claimant request. Amounts paid (including amounts paid under the OWCP fee schedule) for medical services are not appealable to ECAB. See 20 C.F.R. § 10.625.]
C. Payment to Transportation Providers. The OWCP-1500 Form is to be used by those providing authorized transportation to claimants for medical treatment/appointments.
1. If the charge for these services exceeds $75.00, prior authorization is required and the bill must be accompanied with an invoice justifying the charge.
2. A provider must have prior authorization for any of the following transportation procedure codes if the charge billed exceeds $75.00:
A0100 - Taxi
A0110 – Bus
A0120 – Mini Bus
A0130 – Wheel Chair Van
A0140 – Air Travel
A0170 – Tolls/Parking
If there is not an authorization on file or the provider fails to submit an invoice, the system will post Edit 501 and deny the bill. In those instances where the amount being billed exceeds the amount authorized, CBP will send a notification to the CE requesting direction to extend the dollar amount of the authorization, to pay only the authorized amount, or deny the service.
3. If the billed charge is less than $75.00, no edit will post and the bill will be processed through the system, even without a receipt or invoice.
4. Providers who bill using mileage codes A0080 and/or A0090 will be paid based on the current GSA mileage rate, and prior authorization is required if the miles/units billed is for more than 100 miles/units for a single date of service. If an authorization is not on file, the CBP will deny the bill.
D. Mileage Reimbursement for Pharmacy Pick up
A claimant may claim mileage for pharmacy pick up to his or her local pharmacy; reimbursement is generally limited to the closest pharmacy by the shortest route.
Disposition: This bulletin is to be retained until the FECA PM has been updated.
DOUGLAS C. FITZGERALD
Director, Federal Employees' Compensation
Back to Top of FECA Bulletin No. 14-02
Attention: This bulletin has been superseded and is inactive.
FECA BULLETIN NO. 14-03
Issue Date: June 2, 2014
Expiration Date: February 28, 2015
Subject: Compensation Pay - Consumer Price Index (CPI) Cost-of-Living Adjustments for March 1, 2014.
Purpose: To furnish information on the CPI adjustment process for March 1, 2014.
The cost of living adjustments granted to a compensation recipient under the FECA are based on the "Consumer Price Index for Urban Wage Earners and Clerical Workers" (CPI-W) figures published by the Bureau of Labor Statistics (BLS). The annual cost of living increase is calculated by comparing the base month from the prior year to the base month of the current year, with the percentage of increase adjusted to the nearest one-tenth of 1 percent. 5 U.S.C. §8146(a) establishes the base month for the FECA CPI as December.
December 2012 had a CPI-W level of 225.889 and the December 2013 level was reported by BLS as 229.174. This means that the new CPI increase, adjusted to the nearest one-tenth of one percent, is 1.5 percent. The increase is effective March 1, 2014, and is applicable where disability or death occurred before March 1, 2013. In addition, the new base month for calculating the future CPI is December 2013.
The maximum compensation rates1, which must not be exceeded, are as follows:
|
Rate |
Time |
|---|---|
|
$8,175.62 |
per month |
|
7,546.76 |
each four weeks |
|
1,886.69 |
per week |
|
377.34 |
per day (for a 5-day week) |
Applicability: Appropriate National Office and District Office personnel.
Reference: FECA Consumer Price Index (CPI) Amendment, dated January 6, 1981; Bureau of Labor Statistics Consumer Price Index Publication for December 2013 (USDL-14-0037)
Action: National Office Production staff will update the iFECS CPI tables and have all payment records re-calculated when the iFECS system is not in use by District Office personnel. This occurred on February 26, 2014. The March 8, 2014 check will be paid at the 2013 rate but will include the supplemental CPI payment for the period of March 1st to March 8th. The following periodic roll check will reflect the updated 2014 28-day amount. Please note that if there are any cases with fixed gross overrides, there will be no supplemental record created. These cases must be reviewed to determine if CPI adjustments are necessary, and if so a manual calculation will be required. If the gross override payment is in fact eligible for annual CPI increases, the payment plate should be adjusted in the iFECS system to pay as a "Gross Override with CPI."
1. CPI Minimum and Maximum Adjustments Listings. Form CA-841, Cost-of-Living Adjustments; Form CA-842, Minimum Compensation Rates; and Form CA-843, Maximum Compensation Rates, should be updated to indicate the increase for 2014. Attached to this directive is a complete list of all the CPI increases and effective dates since October 1, 1966 through March 1, 2014, for reference.
2. Forms.
a. If claimants write or call for verification of the amount of compensation paid (possibly for mortgage verification; insurance verification; loan application; etc.), please continue to provide this data in letter form from the district office. Many times a Benefit Statement may not reach the addressee and regeneration of the form is not possible. A letter indicating the amount of compensation paid every four weeks will be an adequate substitute for this purpose.
Disposition: This Bulletin is to be retained in Part 5, Benefit Payments, Federal (FECA) Procedure Manual, until further notice or the indicated expiration date.
DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation
1 Per Executive Order 13655 signed by President Obama on December 23, 2013.
Attachment
Distribution: List No. 2 --Folioviews Groups A, B and D (Claims Examiners, All Supervisors, District Medical Advisors, Fiscal Personnel, Systems Managers, Technical Assistants, and Rehabilitation Specialists)
FB 14-03 Attachment –
|
EFFECTIVE DATE |
RATE |
EFFECTIVE DATE |
RATE |
|---|---|---|---|
|
10/01/66 |
12.5% |
03/01/88 |
4.5% |
Prior to September 7, 1974, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis, or the nearest multiple of $.23 on a weekly basis ($.23, $.46, $.69, or $.92). After September 7, 1974, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis, or the nearest $.25 on a weekly basis ($.25, $.50, $.75, or $1.00).
|
Date |
Compensation |
||
|---|---|---|---|
|
Prior to 09/07/74 |
.08-.34 = .23 |
Eff. 11/01/74 |
.13-.37 = .25 |
Back to Top of FECA Bulletin No. 14-03