Active FECA Bulletins (2020-2024)

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FECA BULLETIN NO. 24-01

Issue Date: March 15, 2024

Subject: Changes to FECA Subrogation under the National Defense Authorization Act for Fiscal Year 2023

Background: The Federal Employees’ Compensation Act (FECA), 5 U.S.C. § 8101 et seq., provides compensation to federal employees or their survivors (collectively known as FECA beneficiaries) for employment-related injuries or deaths, regardless of fault. Per the FECA, compensation is the “money allowance payable to [a FECA beneficiary] and any other benefits paid for from the Employees’ Compensation Fund,” 5 U.S.C. § 8101(12), and continuation of pay (COP) is explicitly excluded from the definition of compensation, 5 U.S.C. § 8118(e).

The James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (NDAA) was enacted on December 23, 2022. Section 5305 of the NDAA, Fairness for Federal Firefighters, amended Sections 8131 and 8132 of the FECA, which set forth the subrogation obligations for FECA beneficiaries whose injuries were caused by a third party. The FECA subrogation provisions were expanded to authorize reimbursement to the United States from any third-party recovery for the COP, in addition to compensation, paid to or on the behalf of a FECA beneficiary.

Specifically, a FECA beneficiary who is eligible for COP or compensation is required to prosecute or assign to the United States any claim against a third party responsible for the FECA-covered injury. 5 U.S.C. § 8131. When there is a recovery from a third party under Sections 8131 or 8132, the United States has a statutory right to reimbursement that includes the amount of money to be paid to the United States and the surplus. Thus, when a FECA beneficiary prosecutes a matter and recovers from a third party responsible for the FECA-covered injury, the FECA beneficiary will pay to the United States the amount of COP and compensation they received related to the injury (subject to deductions for the statutory minimum share, the costs of a suit, and a reasonable attorney’s fee), commonly referred to as the refund, and any surplus will be applied to both future compensation and future COP for that same injury. 5 U.S.C. § 8132. Likewise, when there is a recovery from a third party in a claim assigned to the United States, the United States will retain the amount of COP and compensation paid to the FECA beneficiary related to the injury (subject to deductions for the statutory minimum share), but the surplus will be credited against only future compensation. 5 U.S.C. § 8131.

All amounts paid to the United States pursuant to Sections 8131 and 8132 are to be credited to the Employees’ Compensation Fund. 5 U.S.C. §§ 8131-8132. For purposes of this Bulletin, the amounts paid to the United States under either section will be referred to as the Reimbursement to the United States.

Prior to these amendments, COP had not been used to calculate the Reimbursement to the United States out of any third-party recovery because COP was not included in the definition of compensation. Therefore, the Office of Workers’ Compensation Programs (OWCP) has not routinely collected or maintained information on the amount of COP paid to a FECA beneficiary (COP data). The amendments to the FECA subrogation provisions necessitate that COP data now be collected for each federal employee who was injured by a third party and be used to calculate the reimbursement to the United States out of a third-party recovery.

The responsibilities for administering the third-party liability and subrogation aspects of any matter will continue to be handled by the Division of Federal Employees’ and Energy Workers’ Compensation of the Office of the Solicitor (SOL). All third-party recoveries are reported to SOL using the Long Form Statement of Recovery (CA-1108) or Short Form Statement of Recovery (CA-1122) (collectively known as SOR) to determine the Reimbursement to the United States.

OWCP will continue to be responsible for all other aspects of a matter, including the payment of FECA benefits, answering questions about billing, tracking the surplus, and calculating the chargeback bill.

Purpose: To provide guidance on implementing the NDAA amendments to the FECA subrogation provisions.

Actions:

I. COP Data.

A. Duty to Provide COP Data Upon Request.

1. The employing agency is responsible for providing COP data upon OWCP and SOL request.

2. Upon request, employing agencies shall upload to the Employees’ Compensation Operation & Management Portal (ECOMP) a letter containing the COP data for a FECA beneficiary. This letter will then be stored in the FECA beneficiary’s file on the Integrated Federal Employees’ Compensation System (iFECS).

i. Employing agencies should use the letter template in the Attachment to this Bulletin.

ii. Employing agencies should upload the letter to ECOMP using the label in the drop-down list, “SUBROGATION - AGENCY COP DATA.”

3. SOL will provide to the employing agency the FECA beneficiary’s name and FECA File Number when requesting the COP data.

4. The employing agency should upload to ECOMP the requested COP data within fourteen (14) calendar days. SOL recognizes that the initial request for COP data will likely include a large number of cases. For the initial request, the employing agency should provide the requested COP data within forty-five (45) calendar days.

5. If the FECA beneficiary receives a third-party recovery before the employing agency has provided the COP data to SOL, SOL reserves the right to approve the third-party recovery and process the SOR.

i. Prior to approving the third-party recovery, SOL will request the COP data and the employing agency will have five (5) calendar days to provide the information. After five (5) calendar days, SOL may approve the SOR.

ii. In the instance that the employing agency provides the COP to SOL after SOL has approved the SOR, per the previous section, SOL shall not retroactively amend or change the SOR, but SOL will retain the COP data to be used on subsequent third-party recoveries for the same injury. If the FECA beneficiary reports a subsequent third-party recovery for the same injury, SOL will include that COP data in the reimbursement calculations.

B. Use of COP Data.

1. The letter containing the COP data will be stored in the FECA beneficiary’s iFECS file. SOL will have access to this information to be used to calculate the Reimbursement to the United States, pursuant to Sections 8131 and 8132, if and when a third-party recovery is reported by a FECA beneficiary.

2. SOL will share the COP data with a FECA beneficiary in response to requests for refundable disbursements. All other disclosures of the COP data shall be made in compliance with the Privacy Act and the system of records, Office of Workers’ Compensation Programs, Federal Employees’ Compensation Act File (DOL/GOVT-1).

C. Frequency.

1. SOL will routinely request COP data from employing agencies, anticipated to be on a monthly basis, as needed. SOL reserves the right to request COP data on either a more frequent or an intermittent basis.

2. Once a FECA file is referred to SOL by OWCP for subrogation review or SOL becomes aware of a potential subrogation matter by other means, SOL will include that FECA File Number in the next COP data request to the employing agency. Normally, SOL will only request the data once, however, in the event that the COP data request was made within forty-five (45) calendar days after the date of injury for a particular claim, COP data will be requested again after the COP period has ended for that injury.

D. Employing Agency’s Point of Contact.

1. Each employing agency should notify SOL of their point of contact for COP data within fourteen (14) calendar days of this Bulletin. The employing agencies are responsible for updating SOL of changes in their points of contact.

2. All notifications and correspondence to SOL should be sent to the following email address: Continuation.of.Pay.FEEWC@dol.gov.

II. Timing.

A. All third-party recoveries reported to SOL on or after the date of this Bulletin shall include both COP and compensation when determining the amount to be reimbursed to the United States. This does not apply to matters with a SOR approved by SOL prior to the date of this Bulletin.

B. If SOL does not possess the amount of COP paid to the FECA beneficiary when the third-party recovery is reported, SOL will contact the claimant’s employing agency and obtain the COP data, subject to the procedures set forth above in Section I(4)(c).

III. COP reimbursed to the United States will be included in the Chargeback. OWCP will continue to credit an employing agency’s chargeback bill for any money received in third-party subrogation cases. This credit will now include the amounts of COP, in addition to compensation, paid to the United States pursuant to Sections 8131 and 8132.

IV. Additional Actions Needed.

A. SOL will notify all existing and future FECA beneficiaries that COP, in addition to compensation, will be used to calculate the Reimbursement to the United States out of any third-party recovery.

B. OWCP and SOL will amend the Long Form Statement of Recovery (CA-1108) and Short Form Statement of Recovery (CA-1122) to reflect the amendments to the FECA subrogation provisions.

C. OWCP and SOL reserve the right to make additional changes to the process described in this Bulletin and to take additional actions to implement the amendments to the FECA subrogation provisions.

Disposition: This Bulletin is to be retained until incorporated into the DFELHWC Procedure Manual.

 

ANTONIO RIOS
Director for
Division of Federal Employees', Longshore and Harbor Workers' Compensation

Distribution: All DFELHWC Staff

Attachment: COP Data Letter to be used by Employing Agencies

Attachment to FECA Bulletin 24-01

COP Data Letter to be used by Employing Agencies

U.S. Department of Labor
Office of the Solicitor
Division of Federal Employees' and
Energy Workers' Compensation
200 Constitution Ave, NW, Suite N-2625
Washington, D.C. 20210

RE: Employee: [Insert Name of Federal Employee]
Date of Injury: [Insert Date of Injury]
FECA File No.: [Insert FECA file number]

Dear U.S. Department of Labor:

Our records show that [Insert Name of Federal Employee] received Continuation of Pay (COP) in connection with above-referenced FECA File Number and Date of Injury.

Dates of COP: [Insert date range]

Total Gross Amount of COP Paid to Federal Employee: [Insert total amount paid to Federal Employee].

Sincerely,

 

Federal Employing Agency

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FECA BULLETIN NO. 24-02

Issue Date: March 18, 2024

Subject: Compensation Pay: Compensation Rate Changes for 2024

Background: On December 21, 2023, the President signed an Executive Order increasing the General Schedule basic pay rates for 2024.

Reference: 2024 General Schedule (Base).

Purpose: To inform the appropriate personnel of the minimum/maximum rates of compensation under the Federal Employees' Compensation Act for affected cases on the periodic disability and death payrolls.

The maximum compensation rate payable is based on the scheduled salary of a GS-15, Step 10 of $159,950 per annum. The basis for the minimum compensation rate of $24,722 is the salary of a GS-2, Step 1. The actual rates are outlined below.

Effective January 28, 2024

	Minimum	Maximum
Weekly	$356.57	$2,306.97
Daily (5-day week)	$71.31	$461.39

 

Effective January 28, 2024

	Minimum	Maximum
28-Day Cycle	$1,426.28	$9,227.88

 

Effective January 28, 2024

	Minimum	Maximum
Monthly (death benefits)	$2,060.17	$9,996.88

Action: The integrated Federal Employees' Compensation System (iFECS) was updated with the rate changes for the periodic disability and death payrolls effective January 28, 2024.

Applicability: Appropriate National and Field Office personnel.

Disposition: This bulletin is to be retained in Part 5, Benefit Payments, Federal (FECA) Procedure Manual.

 

Antonio Rios
Director for
Division of Federal Employees', Longshore and Harbor Workers' Compensation

Distribution: All FECA Staff

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FECA BULLETIN NO. 24-04

Issue Date: June 18, 2024

Subject: Additional and Consequential Conditions in Anomalous Health Incidents (AHI) Claims

Background: The FECA covers injury in the performance of duty; injury includes a disease proximately caused by federal employment. The U.S. Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) Division of Federal Employees', Longshore and Harbor Workers' Compensation (DFELHWC) provides to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. § 8103. The FECA pays compensation for disability or death of an employee resulting from injury in the performance of duty.

In recent years, and predominantly overseas, some Federal employees have reported a series of sudden sensory events such as sounds, pressure, or heat concurrently or immediately preceding the sudden onset of symptoms such as headaches, pain, nausea, or disequilibrium (unsteadiness or vertigo). Symptoms were first reported by personnel stationed in Cuba and have since been collectively referred to as Havana Syndrome.

The specific source of these incidents remains under investigation and the prognosis for the symptoms and/or diseases that result is unclear. Notwithstanding, it remains the responsibility of OWCP to provide Federal employees with medical care and compensation for disability or death resulting from these AHIs.

FECA Bulletin 22-03 provided instructions for how anomalous health incident (AHI) claims were to be handled when initially received. The Bulletin advised that if there were additional diagnosed conditions at the time of receipt, beyond traumatic brain injuries (e.g., gastrointestinal conditions, cancer, etc.), that these conditions would require a well-rationalized opinion from a physician addressing causal relationship, and that the claims examiner could consider a referral to a District Medical Advisor (DMA) if needed to determine if the AHI was competent to cause the additional diagnoses indicated.

Medical research however is limited concerning which conditions are connected to traumatic brain injuries resulting from anomalous health incidents. For that reason, claims for additional conditions beyond traumatic brain injuries will now require a review by a DMA. This pertains to both new and already accepted claims for AHIs.

Purpose: To provide targeted instructions to claims staff on the development of consequential conditions in AHI claims.

Action: Additional and consequential conditions in AHI claims will be fully developed, to include a review by a DMA.

In both new and already accepted claims, the claims examiner should review the medical evidence submitted and undertake any development that is necessary. The claims examiner should request medical evidence from the treating physician that addresses all of the medical conditions that they have diagnosed in connection with the AHI, including the results of any diagnostic testing.

New claims however should not be delayed in accepting the case for a traumatic brain injury as appropriate in accordance with Bulletin 22-03, and then developing for the additional conditions.

After appropriate development has been undertaken, the claims examiner should refer the case to a DMA for review and to provide an opinion as to whether the AHI was capable of producing the additional or consequential condition(s). The DMA should be presented with the correct factual framework for the medical opinion requested. A Statement of Accepted Facts (SOAF) should be used for conveying this information.

1. If the DMA advises that the condition(s) are related to the AHI, the additional or consequential condition(s) should be accepted.

2. If the DMA advises that the condition(s) are not related, or requests additional information, the claims examiner should provide the attending physician with the DMA report and afford an additional thirty (30) days to provide evidence to support a causal relationship between the claimed condition(s) and the AHI.

Disposition: This Bulletin is to be retained until incorporated unto the DFELHWC Procedure Manual.

 

ANTONIO RIOS
Director for
Division of Federal Employees', Longshore and Harbor Workers' Compensation

Distribution: All DFELHWC Staff

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FECA BULLETIN NO. 23-01

Issue Date: October 25, 2022

Subject: Obtaining Information from the Social Security Administration Regarding Dual Benefits and Determining Federal Employees’ Retirement System Offsets

Background: Section 8116(d)(2) of the Federal Employees’ Compensation Act (FECA) requires that a claimant’s compensation be reduced if they receive Social Security Administration (SSA) retirement benefits based on Federal service or if a beneficiary receives SSA survivor benefits that are attributable to the decedent’s federal service. If a claimant was enrolled in the Federal Employees’ Retirement System (FERS) or another federal retirement program that contributes to Social Security, their entitlement to compensation must be reviewed for possible dual benefits when they reach retirement age. Normal Retirement Age (NRA) under SSA is between ages 65 and 67, depending upon the year of birth, but a claimant may be eligible for retirement benefits at any time after age 62.

Previously, DFELHWC-FECA program employees were responsible for faxing requests to SSA on an individual basis based on review of the yearly returned CA-1032 forms as part of a Periodic Entitlement Review (PER) since there was no other way to determine if the claimant was receiving SSA benefits.

However, the U.S. Department of Treasury’s, Bureau of the Fiscal Service, Do Not Pay Business Center (DNP) is now providing the FECA program with a matching report, using the social security number (SSN), of claimants in receipt of compensation from the SSA and temporary total disability payments under the FECA. Even though the report confirms that SSA benefits are being paid, it does not detail whether the payments made are for SSA disability or SSA retirement benefits.

Note - The DNP report provides matches about overlapping payments that were identified using the payee’s SSN. This report is not applicable for death cases since the FECA payment files used for the matching contain the SSN of the claimant (not the beneficiary(ies) being paid) and were not matched against DNP death data sources. Therefore, the process described in this bulletin does not pertain to death cases.

Purpose: To provide guidance regarding information provided by the SSA pertaining to whether a claimant requires a FERS Offset.

Action:

1. The Fiscal Branch should cross-reference the DNP matching report with a report of cases (age 62 to 75) on the periodic roll on a monthly basis to determine which cases already have offsets in place and which cases need to be sent to SSA for benefit confirmation and calculation.

2. If a case is on the periodic roll and a review by the SSA is not needed because no SSA benefit is being paid, a memorandum may be placed in the case file documenting that the case was reviewed for possible offset using this match and none was needed.

3. If a case is on the periodic roll and a review by the SSA is not needed because the claimant has already reached NRA (age 67) and SSA has previously reported after he/she turned 67 that no federal earnings were used as part of the benefit calculation, a request to SSA should not be sent.

4. Cases sent to the SSA for review may be transmitted via automatic batch process, and individual request forms should be placed in the appropriate case files. If SSA does not respond, additional follow up requests should be sent by the Fiscal Branch.

5. The initial matching and SSA review requests were transmitted for all cases on the periodic roll during the months July and August 2022.

6. Effective the date of this bulletin:

a. The monthly process above in steps 1-4 may be completed in conjunction with the annual issuance of the CA-1032 form.

b. If new cases are identified outside of the annual schedule, the request to SSA may be sent off-cycle so that any potential offset can be implemented as early as possible to avoid a growing overpayment.

7. SSA should continue to upload their response via the Employees’ Compensation and Management Portal (ECOMP). The response should be added to the case file.

8. The Claims Examiner (CE) should review the response. If an offset is needed, the CE may send a notification letter to the claimant regarding the offset and refer the case to the assigned Debt Claims Examiner to process any overpayment in accordance with existing procedures. If an offset is not needed no further action is required.

9. Cases involving survivor benefits may be sent (and tracked) by the Fiscal Branch upon notification by the CE since these cannot yet be automated.

Applicability: Appropriate National and Field Office personnel.

Disposition: This Bulletin is to be retained until incorporated unto the DFELHWC Procedure Manual.

 

Antonio Rios
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All DFELHWC Staff

Back to Top of FECA Bulletin No. 23-01

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FECA BULLETIN NO. 23-02                                                                                                                                  December 15, 2022

Subject: Processing Claims for COVID-19 Diagnosed After January 27, 2023

Background: The Federal Employees' Compensation Act (FECA) covers injury in the performance of duty; injury includes a disease proximately caused by federal employment. The U.S. Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) Division of Federal Employees', Longshore and Harbor Workers' Compensation (DFELHWC) administers the FECA. The FECA provides to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician that OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103. The FECA also pays compensation for the disability or death of an employee resulting from injury in the performance of duty.

On March 11, 2021, the American Rescue Plan Act of 2021 (ARPA) was signed into law. This legislation streamlined the process for federal workers diagnosed with COVID-19 to establish coverage under the FECA. FECA Bulletin 21-09, issued on April 28, 2021, incorporated the ARPA’s provisions for processing COVID-19 claims.

Section 4016(b)(1) of the ARPA requires an injured Federal worker to be diagnosed with COVID-19 on or prior to January 27, 2023, for these statutory provisions to apply. Therefore, any claim for which COVID-19 is diagnosed between January 27, 2020, and January 27, 2023, will continue to be processed in accordance with the guidelines established under the ARPA.

In accordance with the clear Congressional intent to end the specialized treatment of COVID-19 claims for Federal workers’ compensation on January 27, 2023, OWCP is updating its procedures to provide that claims for COVID-19 diagnosed after that date must establish the five basic elements for adjudication set forth in the FECA regulations. See 20 C.F.R. §10.115.

Purpose: To provide guidance regarding the processing of claims involving COVID-19 diagnosed after January 27, 2023.

Actions:

I. Filing of Cases Involving COVID-19 Diagnosed After January 27, 2023

1. Policy Applicability. A determination as to whether a claim based on a COVID-19 diagnosis is treated under the ARPA COVID-19 provisions will be based exclusively on the date of the positive COVID-19 test result¹. See section IV below. Claims with test results dated on or before January 27, 2023 will be handled under the ARPA provisions. Claims with test results dated after January 27, 2023 will be handled in accordance with the policies in this Bulletin.

2. Form. Claims for COVID-19 diagnosed after January 27, 2023 should generally be filed on Form CA-2. This is because in most cases there is no clear, identifiable incident or incidents over a single day or work shift to which the injured worker can specifically attribute the event alleged to have caused the diagnosed COVID-19. While OWCP had previously required these claims to be filed on Form CA-1, that was due to the exigent circumstances and uncertainty regarding COVID-19. Those circumstances have now passed, so this change is being made so that COVID-19 is treated similarly to other airborne infectious disease where the specific etiology is unclear.

Exception: Form CA-1 may be used only if the event alleged to have caused the diagnosed COVID-19 is identifiable as to time and place of occurrence. This must be a specific event or incident or series of events or incidents during a single day or work shift. See 20 CFR §10.5(ee).

If there is no clear, identifiable incident or incidents over a single day or work shift to which the injured worker is attributing the diagnosis of COVID-19, Form CA-2 should be used. If a claim is submitted on a CA-1 but there is no clear, identifiable incident or incidents over a single day or work shift, the claim type will be administratively updated and continuation of pay (COP) adjudicated.

3. Electronic Filing. The Employees' Compensation Operations and Management Portal (ECOMP) should be used to file new claims. To assist the claimant in filing the correct form, the FECA Program is updating the COVID-19 claims filing process in ECOMP to ask specific questions to direct the claimant to the CA-1 or CA-2 as appropriate.

4. Continuation of Pay (COP). Agencies are directed to process COP following the filing of Form CA-1 in accordance with established procedures. See 20 CFR §10.211; 20 CFR §10.220-§10.222.

II. Creation of Cases Involving COVID-19 Diagnosed After January 27, 2023

1. Case Indicator. Cases involving COVID-19 diagnosed after January 27, 2023, will have a case indicator of CVD.

COVID-19 claims filed or adjudicated after March 11, 2021, and where COVID-19 is diagnosed on or before January 27, 2023, will continue to have special tracking indicator C19 assigned.

2. Case Prefix. Cases involving COVID-19 diagnosed after January 27, 2023, will have a prefix “55” as is used in other new FECA claims.

COVID-19 claims filed or adjudicated after March 11, 2021, and where COVID-19 is diagnosed on or before January 27, 2023, will have a prefix "19".

3. Case Number Conversion Notification. In all instances where a case number is changed to a "55" or “19” prefix based on the date COVID-19 is diagnosed, a letter will be sent to the claimant and agency notifying them of the change.

III. Case Adjudication Procedures for Claims Involving COVID-19 Diagnosed After January 27, 2023

Claims for COVID-19 diagnosed after January 27, 2023, will be fully developed to establish the five basic elements for claims adjudication under the FECA:

a. The claim was filed within the time limits set by the FECA;

b. The injured worker was an employee within the meaning of the FECA;

c. The claimant provided evidence

1. Of a diagnosis of COVID-19, and

2. That establishes they actually experienced the event(s) or employment factor(s) alleged to have occurred.

d. The alleged event(s) or employment factor(s) occurred while the employee was in the performance of duty; and

e. The COVID-19 is found by a physician to be causally related to the established event(s) or employment factor(s) within the employee’s Federal employment. Neither the fact that the condition manifests itself during a period of Federal employment, nor the belief of the claimant that factors of employment caused or aggravated the condition, is sufficient in itself to establish causal relationship.

With respect to (c)(2) above, in accordance with established FECA procedure, the CE must make a factual determination by reviewing the evidence of file to decide whether the claimant actually experienced the specific event(s), or employment factor(s) claimed on Form CA-1 or CA-2. See FECA Procedure Manual 2-0803(2)(a). In doing so, the CE may credit statements made by the claimant regarding facts of which the claimant has direct knowledge. For example, if the claimant alleges that they were in close contact to 10 individuals at work, which the claimant believes resulted in the claimant getting COVID-19, OWCP may accept as fact that the claimant was in close contact to 10 individuals at work. To provide another example, if the claimant alleges their COVID-19 is the result of “sitting next to an individual that had tested positive for COVID-19,” OWCP may accept as fact that the claimant sat next to the individual, but would require the claimant to provide evidence in support of the allegation that the individual sitting next to them was COVID-19 positive.

A rationalized medical report establishing a causal link between a diagnosis of COVID-19 and factors of Federal employment is required in all claims for COVID-19 diagnosed after January 27, 2023. See FECA Procedure Manual 2-0805.3(d)(2).

IV. Specialized Requirements to Establish a Diagnosis of COVID-19. There are no changes to the specialized requirements for medical evidence needed to establish a diagnosis of COVID-19 as noted in item III(c)(1) above. See also: FECA Bulletin 21-10 and FECA Bulletin 22-06.

Specifically, in order to establish a diagnosis of COVID-19, an employee (or survivor) should submit:

a. A positive Polymerase Chain Reaction (PCR) or Antigen COVID-19 test result; or

b. A positive Antibody COVID-19 test result, together with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not sufficient if there was no evidence of illness); or

c. If a positive PCR, Antigen, or Antibody test is not available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.

In certain rare instances, a claimant may establish a diagnosis of COVID-19 if a physician provides a rationalized opinion with supporting factual and medical background as to why the employee has a diagnosis of COVID-19 notwithstanding a negative or series of negative COVID-19 test results.

Medical reports from nurses or physician assistants are acceptable if a licensed physician cosigns the report.

Self-administered COVID-19 tests, also called "home tests”, "at-home tests”, or "over-the-counter (OTC)” tests, are insufficient to establish a diagnosis of COVID-19 under the FECA. This is because there is no way for FECA claims staff to affirmatively establish (1) the date and time the sample was collected and (2) that the sample collected is that of the injured federal employee making the claim. The only exception to this policy is where the administration of the self-test is monitored by a medical professional and the results are verified through documentation submitted by such professional.

V. Chargeback

Claims accepted for COVID-19 diagnosed after January 27, 2023, will be included in the annual chargeback billing.

COVID-19 claims filed or adjudicated under the ARPA standards after March 11, 2021 and where COVID-19 is diagnosed on or before January 27, 2023 will be accepted under the ARPA. They will be flagged with the "19" prefix and non-chargeable in the FECA database, meaning it will not be included in annual chargeback billing.

Disposition: This Bulletin is to be retained until incorporated into the FECA Procedure Manual.

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¹ In rare cases where a test was unavailable (see IV.c, below), treatment under ARPA will be dependent on the date of initial COVID-19 diagnosis made by a physician.

 

ANTONIO RIOS
Director for
Division of Federal Employees', Longshore and Harbor Workers' Compensation

Distribution: All DFELHWC – FECA Program Staff

Back to Top of FECA Bulletin No. 23-02

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FECA BULLETIN NO. 23-03                                                                                                           Issue Date: January 9, 2023

Subject: Affording Additional Time for Claimants to Respond to Initial Development Letters

Background: A person filing a new claim before the Office of Workers' Compensation Programs (OWCP) must submit sufficient evidence to establish the five basic requirements of a claim, which is known as the "burden of proof." OWCP has the obligation to aid in this process by giving detailed instructions for developing the required evidence.

Historically, a claims examiner was required to allow at least 30 days for a response to all initial development letters prior to denying a claim in accordance with 20 CFR 10.121.

On December 23, 2022, President Biden signed the Fiscal Year 2023 National Defense Authorization Act (NDAA) into law. Pub. L. 117-263. Section 5305(c) of the NDAA provided for an increase in the time period for Federal Employees' Compensation Act (FECA) claimants to supply supporting documentation to OWCP. Specifically, the legislation directed the Secretary of Labor to (1) amend the FECA regulations at 20 CFR 10.121 to increase the minimum time to submit supporting documentation on an initial claim from 30 to 60 days and (2) modify the FECA procedure manual to do the same.

In accordance with this legislation, on January 6, 2023, the Department of Labor published a final rule in the Federal Register amending 20 CFR 10.121 to read:

If the claimant submits factual evidence, medical evidence, or both, but OWCP determines that this evidence is not sufficient to meet the burden of proof, OWCP will inform the claimant of the additional evidence needed. The claimant will be allowed at least 60 days to submit the evidence required. OWCP is not required to notify the claimant a second time if the evidence submitted in response to its first request is not sufficient to meet the burden of proof.

The final rule was made to be effective 60 days after publication, on March 7, 2023.

Purpose: To provide updated guidance to claims staff on the development of new FECA claims effective March 7, 2023.

Action: Effective March 7, 2023:

1. Claims examiners should change any initial development letter they issue to specifically afford the claimant at least 60 days to submit the required evidence, and:

2. No initial claim denial may be issued without affording the claimant at least 60 days to submit evidence in support of a claim.

Disposition: This Bulletin is to be retained until incorporated into the DFELHWC Procedure Manual.

 

ANTONIO RIOS
Director for
Division of Federal Employees', Longshore and Harbor Workers' Compensation

Distribution: All DFELHWC Staff

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FECA BULLETIN NO. 22-01                                                                                                                                  October 1, 2021

Subject: Coverage for Injuries Resulting from the COVID-19 Vaccination Mandate for Federal Employees.

Background: On September 9, 2021, President Biden issued an executive order mandating COVID-19 vaccination for most Federal employees. The order directed each agency to implement a program to require COVID-19 vaccination for all of its employees, with exceptions only as required by law.

The Federal Employees' Compensation Act (FECA) covers injuries that occur in the performance of duty. The FECA does not generally authorize provision of preventive measures such as vaccines and inoculations, and in general, preventive treatment is a responsibility of the employing agency under the provisions of 5 U.S.C. 7901. However, care can be authorized by OWCP for complications of preventive measures which are provided or sponsored by the agency, such as adverse reaction to prophylactic immunization. See PM 3-0400.7(a).

Further, deleterious effects of medical services furnished by the employing establishment are generally considered to fall within the performance of duty. These services include preventive programs relating to health. See PM 2-0804.19.

However, this executive order now makes COVID-19 vaccination a requirement of most Federal employment. As such, employees impacted by this mandate who receive required COVID-19 vaccinations on or after the date of the executive order may be afforded coverage under the FECA for any adverse reactions to the vaccine itself, and for any injuries sustained while obtaining the vaccination.

Purpose: To provide guidance on coverage for claims for injury on or after September 9, 2021, resulting from receipt of the mandated COVID-19 vaccination for Federal employees.

Applicability: All FECA Program Staff and Other Stakeholders.

Reference: Federal (FECA) Procedure Manual, Part 2 Claims, Chapter 2-0804 Performance of Duty, and Part 3 Medical, Chapter 3-0400 Medical Services and Supplies; 20 CFR § 10.313; Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees.

Actions::

1. Because COVID-19 vaccination is a specific event occurring during a single day or work shift, any adverse reactions or injuries should be reported on Form CA-1, Notice of Traumatic Injury and Claim for Continuation of Pay / Compensation. Where two vaccinations are required several weeks apart, reactions to each are considered separate claims.

2. When a claim is received for injury due to receipt of the COVID-19 vaccination, the claims examiner should determine if the vaccine was received prior to September 9, 2021. If the vaccination was received prior to this date, coverage is afforded only if the vaccine was administered or sponsored by the employing agency. See PM 2-0804.19.

3. The claims examiner should then confirm that the employee is covered by the September 9, 2021 executive order. The order applies to any executive agency as defined in 5 U.S.C. 105 – agencies that fall under the executive branch of the government (excluding the Government Accountability Office). The order does not apply to employees of the United States Postal Service. If there is any question regarding applicability of the executive order, the claims examiner should query the employing agency. If the employee is not covered by the executive order, coverage is afforded only if the vaccine was administered or sponsored by the employing agency. See PM 2-0804.19.

4. If the employee is covered by the executive order and vaccination was received on or after September 9, 2021, coverage may be afforded for (1) adverse reactions to the COVID-19 vaccination and (2) injuries sustained as the direct result of an employee receiving their mandated vaccination. Examples of such injuries include but are not limited to accidents while commuting a reasonable distance to and from the vaccination site and slip and fall injuries occurring at the vaccination site.

5. The claims examiner should, however, ensure that the employee followed any employing agency policy with respect to obtaining their mandatory vaccination. The executive order directs each agency to implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees.

a. If an employing agency requires employees to receive their mandatory vaccination at specific times and/or at a specific location(s), coverage is only afforded if the employee follows the agency’s vaccination policy.

b. If any employing agency allows employees to obtain their mandatory vaccination at any time or location, coverage is afforded regardless of where or when the employee receives their vaccination, with the only limitation being for that of reasonableness.

6. The executive order requires full vaccination, which is considered to be two shots of the Pfizer-BioNTech COVID-19 Vaccine, also known as Comirnaty, two shots of the Moderna COVID-19 Vaccine, or one shot of the Janssen COVID-19 Vaccine. The order does not cover or mandate booster vaccinations. Should there be any changes regarding approved vaccination brands or mandated vaccination frequencies, the FECA program will publish additional guidance.

Disposition: This bulletin should be retained until incorporated into Chapter 2-0804, Performance of Duty, of the FECA Procedure Manual.

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All FECA Program Staff

Back to Top of FECA Bulletin No. 22-01

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FECA BULLETIN NO. 22-02                                                                                                                                  November 23, 2021

Subject: New FECA Prescription Management Policies

Purpose: To announce the implementation of new pharmacy polices and services by the Office of Workers' Compensation (OWCP) Division of Federal Employees', Longshore and Harbor Workers’ Compensation (DFELHWC) Federal Employees’ Compensation Act (FECA) program.

Background: OWCP shall provide to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103.

The Act and its implementing regulations at 20 C.F.R. Part 10, Subpart I (20 C.F.R. 10.800) authorizes the FECA program to set limitations and require pre-authorization for medical services and supplies where deemed necessary.

In accordance with 5 U.S.C. 8103 and 20 C.F.R. 10.809, OWCP has contracted with a Pharmacy Benefit Manger (PBM) to serve as FECA's PBM for claimants covered under the FECA. See FECA Bulletin 21-07, issued March 9, 2021. With that initial release, all FECA claimants are now required to use the FECA PBM for prescribed drugs. The FECA program mailed pharmacy cards and welcome letters introducing the new program to all FECA claimants in April 2021; new claimants receive a card once their claim is accepted.

With this Bulletin, the FECA program is expanding pharmacy benefits and services for FECA claimants and providers and implementing new policies through its PBM with respect to:

I. Drug Formulary System
II. Prospective Drug Utilization Review (DUR)
III. Preference for Generic Drugs
IV. Initiation of Opioid Therapy
V. Concurrent and Retrospective DUR
VI. Retail Pharmacy
VII. Home Delivery/Mail Order Pharmacy
VIII. Specialty Drugs and Compounded Medications

The FECA program’s formulary is maintained by the PBM, and the PBM makes recommendations for updates; however, OWCP maintains direct control of all decisions for medication inclusion or exclusion to its drug formulary and other related controls. OWCP’s clinical pharmacists and physicians make the decisions, and the policies implemented by the PBM are at the direction of OWCP.

Initial determinations of eligibility may be made by the PBM under the direct supervision and/or following specific guidelines outlined by OWCP. An injured worker is always entitled to a formal decision from the FECA Program on any adverse determination upon request.

PBM Claimant and Prescriber Portals:

To allow for quick and easy access to information regarding the PBM, OWCP has developed a PBM Claimant Portal and a PBM Prescriber Portal. The PBM Claimant Portal will allow claimants and employing agency users to review pending, processed, or denied prescriptions for a specific case. They will be able to review authorization requests submitted by prescribers on behalf of claimants and the prior authorization decisions. Other functionalities include the ability to view and request a new prescription card, search for the coverage status of particular drugs, view the drug formulary, search for in-network pharmacies, and view educational materials.

FECA claimants will be able to access the PBM Claimant Portal by first logging into The Employees’ Compensation Operations and Management Portal (ECOMP) available at https://www.ecomp.dol.gov/, then clicking on the pharmacy benefits management link. FECA claimants must be registered with ECOMP in order to access the PBM Claimant Portal. Employing agency users will access a claimant case in ECOMP in the same manner they do now, and will, thereby, have access to the PBM Claimant Portal.

The PBM Prescriber Portal will give OWCP FECA registered providers with prescriptive authority the ability to review a claimant’s medication and authorization history. They can also check on a drug’s coverage, review the formulary, utilization management edits, and submit prior authorization requests for drugs including, opioids and non-formulary medications. Prescribers will need the claimant’s last name, date of birth, and FECA case number to access a specific claimant’s case. Prescribers can access the PBM Prescriber Portal by going to the PBM’s home page at https://feca-pharmacy.dol.gov, and then clicking on the Prescriber Portal login; they will be redirected to OWCP Connect to verify their credentials prior to access.

If a provider/prescriber has never enrolled with the OWCP, they should seek enrollment through the OWCP Medical Bill Contractor at https://owcpmed.dol.gov/portal/provider/get-started.

References: 5 U.S.C. 8103, 20 C.F.R. 10.809, FECA Bulletin 21-07

Actions:

I. Drug Formulary System

A drug formulary is a continually updated list of medications and related products supported by current scientific research. The formulary’s goal is to assist prescribers in the selection of safe, effective, and affordable medications. The drug formulary system is designed as a list of medications FECA will cover, and includes additional prescribing and dispensing guidelines for prescribers and pharmacies to further safe and effective medication use. This includes the application of prospective, concurrent, and retrospective drug utilization review (DUR), and prior authorization for non-formulary medications.

OWCP considers the totality of treatments within a specific disease state or injury to allow for adequate access to medications for injured workers based on recommendations from the FDA; nationally recognized treatment guidelines; drug information compendia; and large, randomized controlled trials. The formulary links national drug codes (NDCs) with specific disease states or injuries through International Classification of Diseases and Related Health Problems (ICD) codes. This prevents payment for products, which have not been approved by the FDA to treat the accepted condition and for which there is insufficient evidence in the medical literature to conclude that a product is more effective than placebo for treatment of the accepted condition.

1. Accessing and Reviewing the Formulary. Prescribers should login to the PBM’s Prescriber Portal (https://feca-pharmacy.dol.gov) to view and review the formulary and prospective DUR point-of-sale (POS) edits before prescribing medications to claimants.

a. The formulary will be updated on a quarterly basis in January, April, July, and October unless unusual circumstances require an immediate update. The FECA PBM processing system will update 45 days after each quarterly update to allow time for notification of claimants and prescribers, unless unusual circumstances exist that require an immediate update.

b. If a change in the formulary may affect a claimant (e.g., the removal of a product from the formulary due to new safety information), the PBM will notify affected claimants and prescribers no less than 45 days from the change, unless unique circumstances exist (e.g., a product’s immediate removal from the marketplace or potential for serious harm).

c. The PBM will also provide notice immediately to claimants, prescribers, and participating pharmacies if claimants are adversely affected by changes in the pharmaceutical market, such as a drug withdrawal, a new black box warning, or other urgent safety warnings.

2. New Prescriptions. All claimants with a date of injury after December 9, 2021 are immediately subject to the formulary requirements associated with all prescriptions. Claimants with a date of injury on or prior to December 9, 2021 are subject to the formulary requirements for all new prescriptions. New prescriptions are defined as a prescription for a medication that has a date of service after December 9, 2021 for a medication that the claimant has not taken in the past six months.

3. Legacy Prescriptions. Any prescriptions for claimants with a corresponding date of service after December 9, 2021 for a medication that the claimant has taken in the past six months for their accepted work injury, are considered legacy prescriptions. From December 9, 2021 thru December 8, 2022, claims for legacy prescriptions for the work-related injury will continue to be paid regardless of whether the medication is or is not on the formulary.¹

a. Written notice will be provided to claimants and their prescribers with active legacy prescriptions that are not on the formulary. The notice will request the prescriber to switch non-formulary products to formulary products by December 8, 2022 or submit a prior authorization request explaining why the claimant needs to continue using the non-formulary product. The letters will be mailed to claimants and made available on the PBM’s portals for claimants and prescribers to review.

b. If a legacy prescription is not switched to a formulary alternative or the legacy claimant’s prescriber has not submitted a prior authorization request by December 8, 2022, requests to refill the legacy prescription will be denied at the pharmacy unless extenuating circumstances are present.

4. Prior Authorization. All prior authorization requests for non-formulary medications should be submitted through the PBM’s Prescriber Portal, at https://feca-pharmacy.dol.gov.

a. Following review, the PBM, under the strict guidelines provided by OWCP, will make a determination on the request and notify the applicable parties.

b. If the claimant disagrees with the determination, they may request a formal decision with appeal rights from OWCP. Formal decisions with appeals rights will be issued by the FECA program, not by the PBM.

II. Prospective Drug Utilization Review (DUR)

Utilization management controls may be necessary to help ensure the safe and effective use of drugs added to the formulary. Prospective DUR include checks for drug-drug interactions, drug-disease interactions, duplication of therapy, and other industry-standard checks. Also, OWCP may decide on prospective DUR point-of-sale (POS) edits including, quantity limits, days’ supply limits, step therapy, early refill requirements, brand versus generic use limitations, morphine equivalent dose (MED) limitations, if the cost exceeds the expected dollar limit for that drug type, or other prior authorization criteria. Finally, prospective DUR POS controls may involve varying degrees of oversite, including:

• Message Only Alerts: Provide important clinical, safety, and/or coverage information to the pharmacy.
• Soft Edits: Stop the pharmacy from processing a prescription due to a safety alert or other reason unless or until a pharmacist provides a DUR code at the pharmacy.
• Prior Authorization Required: Stops the pharmacy from processing a prescription due to the requirement for a prior authorization unless or until an override is entered or authorized by OWCP.
• Non-Formulary Edits: Reject the prescription at the POS due to the prescription not being on the FECA formulary.

1. Accessing and Reviewing DUR POS Edits. Prescribers should log into the PBM’s Prescriber Portal (https://feca-pharmacy.dol.gov) to view and review the formulary and prospective DUR POS edits before prescribing medications to claimants.

2. Prior Authorization. All prior authorization requests should be submitted through the PBM’s Prescriber Portal, at https://feca-pharmacy.dol.gov.

3. Adverse Determinations based on DUR POS Edits. Prescriptions stopped at the POS through the application of a hard edit will be reviewed and managed through the PBM’s internal web portal. The PBM will notify the pharmacy as to why the prescription was approved or denied. The reason for approval or denial will also appear in the PBM’s web portal for claimants and prescribers to review. The claimant may request a formal decision with appeal rights from OWCP for any adverse determination.

III. Preference for Generic Drugs

To contain drug costs, states have adopted laws and/or regulations that either mandate the substitution or allow for permissive substitution of multi-source branded drugs with therapeutically equivalent generic drugs. This has allowed states to reduce drug costs while providing drugs that have the same quality and performance as their brand name counterparts². However, prescribers and pharmacies can use dispense-as-written (DAW) codes on their prescriptions to override state substitution laws and request the dispensing of multi-source branded drugs leading to higher overall drug costs.

20 CFR §10.809(c) provides that "With respect to prescribed medications, OWCP may require the use of generic equivalents where they are available."

As such, the FECA program now requires claimants to utilize therapeutically equivalent drugs (as defined by FDA’s Orange Book Database ³) or interchangeable biological products (as defined by FDA’s Purple Book Database⁴) as alternatives to multi-source brand drugs and biologicals. There may, however, be rare instances where the FECA PBM will pay for multi-source brand drugs, such as when the multi-source brand name drug is less expensive than therapeutically equivalent generic drugs.

1. Brand Name Drug Rejection. To prevent unnecessary utilization of multi-source brand name drugs, the PBM will reject any multi-source brand name drug unless the multi-source brand name drug was mandated by law/regulation or the generic drug is not available in the marketplace. Thus, even if a prescriber or claimant requests the brand name version, the prescription will be rejected at the point of sale.

2. Notification. As claimants transition to the formulary, letters will be provided to legacy claimants taking multi-source brand drugs requesting they switch to therapeutically equivalent generic drugs. The letters will be mailed to claimants and made available on the PBM’s portals for claimants and prescribers to review.

3. Prior Authorization. If the prescriber would like to request a brand name drug, they should do so in writing by completing a prior authorization request by logging into the PBM’s Prescriber Portal at (https://feca-pharmacy.dol.gov). The prescriber should articulate their clinical rationale, and provide supporting medical evidence including peer-reviewed, published research to justify their reasoning as to why a therapeutically equivalent generic drug cannot be used.

a. Following review, the PBM, under the strict guidelines provided by OWCP, will make a determination on the request and notify the applicable parties.

b. If the claimant disagrees with the determination, they may request a formal decision with appeal rights from OWCP. Formal decisions with appeals rights will be issued by the FECA program, not from the PBM.

IV. Initiation of Opioid Therapy

On September 9, 2019, the FECA Program instituted new controls on new opioid prescriptions (FECA Bulletin No. 19-04). These controls limited new opioid users to four sequential 7-day supply prescriptions within a 28-day period. A new opioid user is an individual who has not filed a claim for opioids with the FECA program in the past 180 days. Prescribers were not allowed to request prior authorization for additional opioid medication sooner than 9 days prior to the end of the 28-day period.

Enhancements made possible by the PBM add additional safety checks, reduce complexity, and increase transparency for prescribers and claimants with opioid prescriptions.

According to the CDC⁵:

• Prescribing <7 days (ideally ≤3 days) of medication when initiating opioids could mitigate the chances of unintentional chronic use. When initiating opioids, caution should be exercised when prescribing >1 week of opioids or when authorizing a refill or a second opioid prescription because these actions approximately double the chances of use 1 year later.

According to CDC Guidance⁶:

• Long-term opioid use often begins with treatment of acute pain. When opioids are used for acute pain, clinicians should prescribe the lowest effective dose of immediate-release opioids and should prescribe no greater quantity than needed for the expected duration of pain severe enough to require opioids. Three days or less will often be sufficient; more than seven days will rarely be needed.
• When opioids are started, clinicians should prescribe the lowest effective dosage. Clinicians should use caution when prescribing opioids at any dosage, should carefully reassess evidence of individual benefits and risks when considering increasing dosage to ≥50 morphine milligram equivalents (MME)/day, and should avoid increasing dosage to ≥90 MME/day or carefully justify a decision to titrate dosage to ≥90 MME/day.
• When starting opioid therapy for chronic pain, clinicians should prescribe immediate-release opioids instead of extended-release/long-acting (ER/LA) opioids.
• Clinicians should consider opioid therapy only if expected benefits for both pain and function are anticipated to outweigh risks to the patient. If opioids are used, they should be combined with nonpharmacologic therapy and nonopioid pharmacologic therapy, as appropriate.
• Before starting opioid therapy for chronic pain, clinicians should establish treatment goals with all patients, including realistic goals for pain and function, and should consider how opioid therapy will be discontinued if benefits do not outweigh risks. Clinicians should continue opioid therapy only if there is clinically meaningful improvement in pain and function that outweighs risks to patient safety.
• Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy and patient and clinician responsibilities for managing therapy.
• Clinicians should evaluate benefits and harms with patients within 1 to 4 weeks of starting opioid therapy for chronic pain or of dose escalation. Clinicians should evaluate benefits and harms of continued therapy with patients every 3 months or more frequently. If benefits do not outweigh harms of continued opioid therapy, clinicians should optimize other therapies and work with patients to taper opioids to lower dosages or to taper and discontinue opioids.
• Before starting and periodically during continuation of opioid therapy, clinicians should evaluate risk factors for opioid-related harms. Clinicians should incorporate into the management plan strategies to mitigate risk, including considering offering naloxone when factors that increase risk for opioid overdose, such as history of overdose, history of substance use disorder, higher opioid dosages (≥50 MME/day), or concurrent benzodiazepine use, are present.
• Clinicians should review the patient’s history of controlled substance prescriptions using state prescription drug monitoring program (PDMP) data to determine whether the patient is receiving opioid dosages or dangerous combinations that put him or her at high risk for overdose. Clinicians should review PDMP data when starting opioid therapy for chronic pain and periodically during opioid therapy for chronic pain, ranging from every prescription to every 3 months.
• When prescribing opioids for chronic pain, clinicians should use urine drug testing before starting opioid therapy and consider urine drug testing at least annually to assess for prescribed medications as well as other controlled prescription drugs and illicit drugs.
• Clinicians should avoid prescribing opioid pain medication and benzodiazepines concurrently whenever possible.
• Clinicians should offer or arrange evidence-based treatment (usually medication-assisted treatment with buprenorphine or methadone in combination with behavioral therapies) for patients with opioid use disorder.

The PBM will consider the CDC guidance above, other nationally recognized guidelines, and the unique aspects of each case when reviewing prior authorization requests.

In conjunction with the most current CDC guidance, the FECA Program is hereby updating its policy with respect to the authorization of opioid medication.

1. Applicability of New Policy. This policy will apply to new opioid users starting December 9, 2021. A new opioid user is an individual who has not filed a claim for opioids with the FECA program in the past 180 days.

a. Those claimants who had prior authorization requests approved prior to December 9, 2021, will be subject to this policy once their prior authorization periods are completed.

b. Legacy claimants who did not require prior authorization, but who are receiving opioids, will not be subject to this policy; they will be managed through the PBM’s retrospective drug utilization review program. See section V below.

2. Initial Fill. The PBM will allow no more than one 7-day supply of an on-formulary, immediate release opioid prescription for new opioid users with non-cancer pain, without prior authorization. The no more than one 7-day supply of opioid may not exceed more than 90 MME per day.

3. Subsequent Fills. Subsequent fills beyond the initial 7-day supply require prior authorization. Fills are in 30-day maximum supply increments and the PBM will not authorize more than a 60-day treatment period of opioids beyond the first 7-day prescription. If additional opioids are needed, prescribers must continue to seek prior authorization before the end of each prior authorization period. Each prior authorization extension must not exceed a 60-day treatment period unless unique circumstances exist. This will allow OWCP to assist prescribers and claimants with their management plan.

4. Multiple Opioids. The PBM will not authorize the provision of more than two opioids at the same time in accordance with current best practice guidelines.

5. Extended-Release/Long-Acting Opioids. The PBM will not authorize extended-release/long-acting (ER/LA) opioids within 90 days of injury, and will not authorize ER/LA opioids unless FDA-mandated requirements for prior opioid exposure are met (i.e., the patient has developed sufficient opioid tolerance to safely use ER/LA opioids) and are on the formulary.

6. Prior Authorization. If a prescriber needs to request additional opioids, the prescriber must login to the PBM’s Prescriber Portal (https://feca-pharmacy.dol.gov) and complete a prior authorization request to justify continued use. Prescribers should also review the formulary, in the PBM’s Prescriber Portal prior to prescribing additional opioids.

a. During the prior authorization process, the PBM will review the prior authorization request from the treating physician, consider accepted conditions, surgeries, review medication profiles, assess drug-drug interactions, therapeutic duplications, assess the need for naloxone and perform other clinical pharmacy checks to assist with optimizing prescribing based on nationally recognized guidelines before approving continued opioid use.

b. The PBM will make every attempt to review prior authorization requests within 24 hours of receipt (Monday – Friday, except federal holidays).

c. The PBM will post prior authorization decision letters directly on the PBM’s portals for prescribers and claimants; claimants and prescribers can also call the PBM to discuss treatment plans (1-833-FECA-PBM). Decision letters will inform prescribers and claimants when authorization will end, if it was approved, and why authorization was denied, if it was denied.

d. If the claimant disagrees with the determination, they may request a formal decision with appeal rights from OWCP. Formal decisions with appeals rights will be issued by the FECA program, not from the PBM.

7. Lapse in Treatment. If more than six months have passed since the last opioid medication was filled, the process begins anew with an initial 7-day supply of an on-formulary immediate release opioid prescription at a maximum of 90 MME per day.

V. Concurrent and Retrospective DUR

Concurrent DUR (ongoing monitoring of drug therapy during the course of treatment) and retrospective DUR (review of drug therapy after the claimant has received a medication) will also be a significant component of the PBM program to help ensure the safe and effective use of medications, including opioids. OWCP may, through the PBM’s clinical staff, use a combination of nurses, pharmacists and physicians to perform outreach to claimants and prescribers, complete drug use evaluations, or use other concurrent and retrospective DUR techniques to optimize drug therapy for claimants.

90 MME Review Program: For opioids, OWCP is implementing a 90 MME review program, which involves supporting claimants if they meet or exceed 90 MME per day. This is an opioid dose where the CDC recommends providers should avoid or carefully justify a decision.⁵

Claimants in the 90 MME review program have claimant specific opioid dose locks at the POS to prevent further dose acceleration without medical justification.

a. If a claimant exceeds their opioid dose lock at the pharmacy, the PBM receives notice to review the prescription and review the case. They assess the clinical situation and perform concurrent DUR in collaboration with the treating physician to assess if claimants may need their opioid dose.

b. The PBM may authorize a short course of opioids above the MME lock, if medically necessary.

c. The PBM also performs retrospective DUR using drug use evaluations (DUE), qualitative evaluations of drug use and prescribing to determine the appropriate drug therapy. The PBM completes DUE by assessing medical records and a claimant’s prescription history, and identifies areas for prescription improvement. Once complete, The PBM may recommend non-opioid therapies, dose adjustments, naloxone, proper opioid weaning, and other guideline-driven recommendations to the treating provider.

2. Clinical Letters: As part of the PBM’s retrospective DUR program, claimants and prescribers may also receive letters from the PBM, which identify potential therapeutic concerns associated with prescribed drugs (also known as clinical letters). OWCP may identify specific population cohorts or even individual claimants who merit receipt of a clinical letter. The clinical letters will encourage safe prescribing practices by identifying high-risk issues, including, excessive doses, drug-drug interactions (e.g., between opioids, benzodiazepines, and muscle relaxants), and duplications of therapy. The letters will be mailed to claimants and made available on the PBM’s portals for claimants and prescribers to review.

VI. Retail Pharmacy

Pursuant to FECA Bulletin No. 21-07, FECA claimants must use the PBM for prescribed drugs that are dispensed through its large network of retail pharmacies, which are licensed by their respective state board of pharmacy and utilize pharmacists to dispense prescriptions. This network spans the Continental United States and its permanently inhabited territories. Through this network, the PBM can communicate easily with their retail pharmacy partners to assist claimants. The PBM network requires electronic prescriptions to adjudicate and process in real time.

1. Access. Pharmacies wishing to gain access to the PBM network should visit https://feca-pharmacy.dol.gov to obtain contact information.

2. Supply Limits. Claimants may be able to receive up to a 90-day supply of medication through a retail pharmacy, depending on the type of medication they receive and any formulary requirements. Non-maintenance medications will be limited to a 30-day supply.

3. Refills. The PBM will authorize unexpired prescriptions to be refilled at retail pharmacies once 85% of the current fill has been used.

VII. Home Delivery/Mail Order Pharmacy

The PBM offers claimants home delivery, commonly known as a mail order pharmacy program. The PBM’s mail order program provides added convenience to claimants for those prescriptions that they commonly receive. The PBM’s mail order pharmacies are licensed by their respective state board of pharmacy and utilize pharmacists to dispense prescriptions.

1. Access. The PBM has begun mailing home delivery welcome kits to claimants. The welcome kits provide instructions on how to sign up for home delivery. Claimants can also request home delivery through the PBM’s claimant portal by first logging into ECOMP (https://www.ecomp.dol.gov/) and then clicking on the pharmacy benefits management link. Claimants can also contact the PBM at (833)-FECA-PBM to request home delivery.

2. Supply Limits. Through the PBM’s mail order pharmacy program, claimants may be able to receive up to a 90-day supply of medication, depending on the type of medication they receive and any formulary requirements. Non-maintenance medications will be limited to a 30-day supply.

3. Refills. The mail order program allows refills of medications once 65% of the current fill has been used. Claimants should request refill of their home delivery medications at least 10 days before they are scheduled to take the last dose of medication in their current fill so that the PBM can process their request before they run out of medication.

VIII. Specialty Drugs and Compounded Medications

Specialty drugs are an evolving category of drugs that may treat rare diseases; require significant patient support; have unique administration requirements; require additional clinical and safety oversight; require compliance with risk evaluation and mitigation strategies (REMS) specified by the FDA; and/or require special handling, storage, or shipping. OWCP has created a specialty drug list and will be providing comprehensive clinical management services to those claimants taking these drugs. This may involve coordinating delivery, providing education to claimants, requesting laboratory values to ensure safe use, and working with prescribers to optimize dosages, assess drug interactions, and provide guideline-based recommendations.

Medical compounding is the process of combining or altering two or more drugs or their ingredients to create a hybrid that is tailored to the specific need of a patient. Compounding is normally done by licensed physicians or licensed pharmacists with the oversight of the states' boards of pharmacy. Pursuant to FECA Bulletin 17-01, prior authorization for compounded medications (including compounded medications that contain an opioid) is still required. However, initial processing will now be handled by the PBM.

1. Accessing and Reviewing Specialty Drugs. Prescribers can view the specialty drug list by logging into the Prescriber Portal at https://feca-pharmacy.dol.gov. The specialty drug list will be updated regularly as new products are approved. The specialty drug list is only a reference tool; inclusion on the specialty drug list is not synonymous with inclusion on the formulary. In general, the formulary favors biosimilar biologic products over the biological reference product.

2. Prior Authorization. Specialty drugs on the formulary may require prior authorization. All compounded medications require prior authorization. Prior authorization requests should be submitted through the PBM’s Prescriber Portal, at https://feca-pharmacy.dol.gov.

a. Following review, the PBM, under the strict guidelines provided by OWCP, will make a determination on the request and notify the applicable parties.

b. If the claimant disagrees with the determination, they may request a formal decision with appeal rights from OWCP. Formal decisions with appeals rights will be issued by the FECA program, not from the PBM.

Disposition: This Bulletin is to be retained until otherwise revised or incorporated into Part 3 of the FECA Procedure Manual.

This Bulletin represents the FECA Program’s most current policies with respect to prescription management and supersedes any conflicting guidance previously issued.

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¹ A claim for a legacy prescription may not be paid, however, if a determination is made by OWCP that the medication is being prescribed to treat a condition other than the accepted condition, there is a severe new drug interaction, new safety alert, or if there is risk for fraud, waste, or abuse.

² https://jamanetwork.com/journals/jamanetworkopen/fullarticle/2776929

³ U.S. Food and Drug Administration. Orange Book: Approved drug products with therapeutic equivalence evaluations. Available at: https://www.accessdata.fda.gov/scripts/cder/ob/index.cfm.

⁴ U.S. Food and Drug Administration. Purple Book: Database of Licensed Biological Products. Available at: https://purplebooksearch.fda.gov/.

⁵ Shah A, Hayes CJ, Martin BC. Characteristics of Initial Prescription Episodes and Likelihood of Long-Term Opioid Use — United States, 2006–2015. MMWR Morb Mortal Wkly Rep 2017;66:265–269. DOI: http://dx.doi.org/10.15585/mmwr.mm6610a1

⁶ Dowell D, Haegerich TM, Chou R. CDC Guideline for Prescribing Opioids for Chronic Pain — United States, 2016. MMWR Recomm Rep 2016;65(No. RR-1):1–49. DOI: http://dx.doi.org/10.15585/mmwr.rr6501e1

 

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All DFELHWC FECA Program Staff and Stakeholders

Back to Top of FECA Bulletin No. 22-02

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FECA BULLETIN NO. 22-03                                                                                                                                  January 12, 2022

Subject: Processing Claims for Anomalous Health Incidents (AHI) under the Federal Employees Compensation Act (FECA)

Background: The FECA covers injury in the performance of duty; injury includes a disease proximately caused by federal employment. The U.S. Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) Division of Federal Employees', Longshore and Harbor Workers’ Compensation (DFELHWC) provides to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103. The FECA pays compensation for disability or death of an employee resulting from injury in the performance of duty.

In recent years, and predominantly overseas, some Federal employees have reported a series of sudden sensory events such as sounds, pressure, or heat concurrently or immediately preceding the sudden onset of symptoms such as headaches, pain, nausea, or disequilibrium (unsteadiness or vertigo). Symptoms were first reported by personnel stationed in Cuba and have since been collectively referred to as Havana Syndrome.

Purpose: To provide targeted guidance on the handling of claims resulting from AHIs.

Action:

1. Claim Intake

a. Claimants who sustain an injury as the result of an AHI should file Form CA-1, Notice of Traumatic Injury and Claim for Continuation of Pay / Compensation, as current understanding of AHIs are that they are specific events that occur over a single day or work shift.

b. A new special indicator of AHI will be created within the Employees Compensation and Management Portal (ECOMP) for agency reviewers to select when submitting a claim resulting from these incidents.

c. Claims created with this special indicator will be processed by the Special Claims Unit to ensure consistency in adjudication. See FECA PM 1-0200.

2. Factual Review

a. The claims examiner should review the factual evidence and determine if the agency has concurred with the allegation that the claimant was exposed to an AHI.

b. If the agency concurs that an AHI occurred within the performance of duty, the claims examiner should accept the incident as factual and proceed with a review of the medical evidence of record.

c. If the agency does not concur or does not respond regarding whether an AHI occurred within the performance of duty, the claims examiner should further develop the claim, requesting a detailed statement from the agency as to whether it agrees with the claimant’s allegation(s).

d. If an employing agency fails to respond to the request for a statement, the CE may accept the claimant's statements as factual. See 20 CFR §10.117(b). The claims examiner may also reach out to National Office through their supervisor for escalation if unable to secure an adequate response from the employing agency.

e. In cases where the agency response is ambiguous, the case may be considered for conferencing. See FECA PM 2-0500.

3. Medical Review

a. The claims examiner should also review the medical evidence submitted to determine if any medical conditions have been diagnosed in connection with the AHI incident. Because of uncertainty in the medical community with respect to these incidents, claims examiners may see medical reports addressing symptoms such as headaches, pain, nausea, etc. rather than a concrete diagnosis. While symptoms are not compensable under the FECA, it is appropriate to accept such claims for a diagnosed traumatic brain injury, ICD-10 S06.301A. Additional conditions may be appropriate depending on the medical evidence submitted. The claims examiner may consider a referral to a District Medical Advisor (DMA) if needed for clarification of the diagnosed condition(s).

b. Once the factual component of the claim has been established and the employee has been diagnosed a traumatic brain injury, a fully rationalized medical opinion as to causal relationship is not needed. The physician's diagnosis and an affirmative statement are sufficient to accept the claim. However, additional diagnosed conditions beyond traumatic brain injuries (i.e. gastrointestinal conditions, cancer, etc.) require a well-rationalized opinion from a physician addressing causal relationship. The claims examiner may consider a referral to DMA if needed to determine if the AHI was competent to cause additional diagnoses indicated.

c. All medical evidence must be submitted from a qualifying physician. If medical evidence is submitted from an individual such as a nurse practitioner or physician’s assistant, a report from a physician should be requested. However, as some claimants are located in remote areas overseas and may have limited access to a qualifying physician, a claims examiner may refer the report of a nurse or physician’s assistant to a DMA for review and concurrence with the original provider’s assessment. If the employing agency has a qualifying physician available stateside, they may also review and provide concurrence with the initial provider’s report.

4. Adjudication/Disposition:

a. If the claim meets the five basic requirements for adjudication, given the caveats noted in items 1 and 2 above, the claim should be accepted. A claim that is compensable for some conditions should not be delayed for the final adjudication of all conditions, rather, the claims examiner should issue an acceptance letter on the claimed conditions that can be accepted and further develop the remaining claimed conditions.

b. If the claim does not meet the five basic requirements for adjudication, given the caveats noted in items 1 and 2 above, the claims examiner should proceed with a denial.

5. Claims for Compensation: Nothing in this bulletin alters the claimant's burden of proof for establishing disability, the need for ongoing medical treatment and any claim for a consequential condition. See PM 2-0901.5(a)(2).

6. Schedule Awards: Like any other FECA claim, claims resulting from AHIs may result in permanent impairment to certain parts of the body which will entitle the claimant to an award of compensation payable for a set number of weeks. The claims examiner should monitor medical reports for the possibility of eventual impairment to a schedule member and the date by which maximum medical improvement (MMI) is expected. Schedule awards are only payable to body parts covered by the FECA or subsequently added by regulation. See 5 U.S.C. 8107 and 20 C.F.R. §10.404. Examples of schedule members that may be impaired by an AHI include ears (hearing) and eyes (vision).

7. Dual Benefits: On October 8, 2021, President Biden signed the Havana Act into law. This legislation authorizes the Central Intelligence Agency, the Department of State, and other agencies to provide payments to agency personnel who incur brain injuries from hostilities while on assignment. Specifically, the bill allows agency personnel and their families to receive payments for brain injuries that are incurred (1) during a period of assignment to a foreign or domestic duty station; (2) in connection with war, insurgency, hostile acts, terrorist activity, or other agency-designated incidents; and (3) not as the result of willful misconduct. OWCP does not consider receipt of compensation under the Havana Act to be a prohibited dual benefit and no offset of FECA benefits is required.

Disposition: This Bulletin is to be retained until incorporated unto the DFELHWC Procedure Manual.

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All DFELHWC Staff

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FECA BULLETIN NO. 22-06                                                                                                                                  February 16, 2022

Subject: Updates to COVID-19 Claims Processing Guidelines Relating to Reinfections and Home Tests

Background: The Federal Employees' Compensation Act (FECA) covers injury in the performance of duty; injury includes a disease proximately caused by federal employment. The U.S. Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) Division of Federal Employees', Longshore and Harbor Workers' Compensation (DFELHWC) administers the FECA. The FECA provides to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103. The FECA pays compensation for the disability or death of an employee resulting from injury in the performance of duty.

On March 11, 2021, the American Rescue Plan Act of 2021 (ARPA) was signed into law. This new legislation streamlined the process for federal workers diagnosed with COVID-19 to establish coverage under the FECA. On April 28, 2021, the FECA Program issued FECA Bulletin 21-09, which provided detailed processing procedures for claims for COVID-19 filed under the ARPA. Pursuant to Bulletin 21-09, a claim for COVID-19 would not be considered a new injury unless the date of injury was more than 1 year from the date of injury of any prior accepted COVID-19 claim for the same employee. Rather it would be combined with the existing claim and developed as necessary as a consequential or recurrence claim. This guideline was established to prevent a new injury claim being created based on a previously confirmed virus or test result used to establish the initial injury.

Bulletin 21-09 also provided that COVID-19 cases not expected to involve large medical expenses or extended disability may be administratively closed without formal adjudication by claims staff.

On August 28, 2021, the FECA Program issued FECA Bulletin 21-10, which further amended the processing procedures for claims for COVID-19 to the extent that in order to establish a diagnosis of COVID-19, an employee (or survivor) should submit medical evidence as noted below:

a. A positive Polymerase Chain Reaction (PCR) or Antigen COVID-19 test result; or

b. A positive Antibody test result, together with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not sufficient if there was no evidence of illness); or

c. If no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.

In certain rare instances, a physician may provide a rationalized opinion with supporting factual and medical background as to why the employee has a diagnosis of COVID-19 notwithstanding a negative or series of negative COVID-19 test results.

Reinfection occurs when a person was infected with COVID-19, recovers and then becomes infected with COVID-19 again. Since the onset of the COVID-19 pandemic, research and studies have been conducted by the Centers for Disease Control and Prevention (CDC) and through the U. S. National Science Foundation. Current research supports COVID-19 reinfection (or the onset of a new COVID-19 virus) can occur as early as 90 days following the initial infection.

Self-administered COVID-19 tests, also called “home tests”, “at-home tests”, or “over-the-counter (OTC)” tests have become available and more prevalent over the course of the COVID-19 pandemic. Self-testing offers fast results and may be more convenient than laboratory-based tests and point-of-care tests. Self-tests can be purchased online or in pharmacies and retail stores. They are also available for free through some local health departments or Federally Qualified Health Centers (FQHC). Self-tests are available to detect current infection, but not to detect antibodies to the virus that causes COVID-19.

The research conclusions concerning COVID-19 reinfection as documented by the CDC and through the U. S. National Science Foundation; and the increase in accessibility to self-administered COVID-19 testing, have prompted the need for further guidance concerning the processing, and evidence required for adjudication, of COVID-19 claims under the FECA.

This Bulletin also provides clarity with respect to COVID-19 claims placed in an administrative closure status and the impact on Continuation of Pay (COP).

Purpose: To provide updated guidance regarding the processing of FECA claims with respect to handling reinfection claims, claims involving self-administered COVID-19 testing and administratively closed claims.

Applicability: All DFELHWC FECA Program Staff

Action:

Reinfection:

1. Effective the date of this Bulletin, a claim for COVID-19 will be considered a new injury when the employee tests positive for COVID-19 90 days or more from the date of the employee’s previous positive COVID-19 test. The 90 days is from the date the initial COVID-19 test is performed to the date the current COVID-19 test is performed. A claim based on a positive COVID-19 test which is performed fewer than 90 days after the initial positive COVID-19 test was performed will be combined with the existing claim and developed as necessary as a consequential or recurrence claim.

Self-Administered COVID-19 Testing:

2. Self-administered COVID-19 testing as defined above is insufficient to establish a diagnosis of COVID-19 under the FECA. This is because there is no way for FECA claims staff to affirmatively establish (1) the date and time the sample was collected and (2) that the sample collected is that of the injured Federal employee making the claim.

3. The only exception to this policy is where the administration of the self-test is monitored by a medical professional and the results are verified through documentation submitted by such professional.

4. There is no change to the established policy whereby if no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available may be submitted to establish a claim.

Administratively Closed Cases:

5. COVID-19 claims that close upon receipt are assigned case status code “C1” or “C4” pursuant to FECA Procedure Manual 01-0400. While case status code “C4” is indicative of lost time, COP is only payable if the requisite statutory and regulatory requirements are metⁱ. If COP is claimed but not allowable, a formal decision denying COP may be issued even where the case remains in an administrative closure status.

Regardless of whether a COVID-19 claim administratively closes on receipt, the employing agency must continue the regular pay of employees who are eligible for COP, assuming the above referenced statutory and regulatory requirements are otherwise met.

Disposition: This Bulletin amends FECA Bulletins 21-09 and 21-10 and is to be retained until incorporated into the FECA Procedure Manual.

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All DFELHWC FECA Program Staff

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ⁱSee 5 USC §8118, 20 CFR §205; 20 CFR §220

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FECA BULLETIN NO. 21-05                                                                                                                                                                      February 18, 2021

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Subject: Payment authorization on reimbursements exceeding $50,000

Purpose: This circular is being issued to modify the authorization process for medical reimbursements exceeding $50,000.

Authority: Under the Federal Employees’ Compensation Act (FECA), the Office of Workers' Compensation Programs (OWCP) may provide to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation."

The below protocols supersede the reimbursement authorization process outlined in the FECA Procedure Manual, 5-202(15) and 5-202(16).

Action: Reimbursements exceeding $50,000 will no longer be forwarded to a District Director (DD) or designee for review. Authorizations will be made by the Chief or Assistant Chief of the Branch of Fiscal Operations or the National Director of Field Operations.

Reimbursements exceeding $50,000, including cases involving special indicators such as COVID-19 cases (COR), may also be reviewed by the Chief of the Branch of Program Integrity and/or the Deputy Director for Program Systems and Integrity in addition to the personnel listed above.

 

Antonio Rios
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All FECA Staff

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FECA BULLETIN NO. 21-07                                                                                                                                                                      March 9, 2021

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Subject: New FECA Pharmacy Benefits Management System

Purpose: To announce the implementation of a Pharmacy Benefits Management (PBM) System by the Office of Workers' Compensation's (OWCP) Division of Federal Employees', Longshore and Harbor Workers’ Compensation for the Federal Employees’ Compensation Act (FECA) program.

Background: Pharmacy benefit managers are third-party administrators (TPA) of prescription drug programs for commercial health plans, self-insured employer plans, Federal and State government employee health plans. PBMs are primarily responsible for developing and maintaining formularies which include an approved listing of prescriptions, contracting with pharmacies to increase enrollment, negotiating discounts and rebates with drug manufacturers and processing and paying prescription drug claims.

In accordance with 5 U.S.C. 8103 and 20 C.F.R. 10.809, OWCP has contracted with Optum to serve as FECA’s PBM for claimants covered under the FECA. OWCP’s FECA PBM will be responsible for pharmaceutical transactions including implementation of FECA eligibility determinations and pricing for pharmaceutical drugs provided to FECA claimants. All FECA claimants will be required to use the OWCP FECA PBM for prescribed drugs; otherwise, payment of drugs will not be authorized at the pharmacy. The PBM will pay network pharmacies directly and then seek reimbursement for those payments from FECA’s Employees’ Compensation Fund.

The FECA PBM will also be phasing in an optional Durable Medical Equipment (DME) and diagnostic testing component.

Actions: PBM implementation will be accomplished in a phased approach. In order to receive pharmacy benefits, injured workers must present their new pharmacy cards to a participating pharmacy along with prescriptions for their accepted, work-related condition(s). A listing of participating pharmacies can be found on the internet at www.ecomp.dol.gov. Further assistance in locating or verifying a participating pharmacy or transferring a prescription can be obtained by contacting Optum at 1-833-FECA-PBM.

1. Optum/FECA pharmacy cards and welcome letters will be mailed to current FECA claimants in multiple groupings. Due to urgent safety concerns, welcome packets will first be mailed by April 1, 2021, to claimants who have been prescribed opioids with daily dosages exceeding the 90 MED (Morphine Equivalent Dose). Pharmacy Cards and welcome letters for the remainder of the FECA claimants will first be mailed by April 30, 2021. All Pharmacy cards will include a Bank Identification Number (BIN), the date the cards become effective, a PBM toll-free number for information, as well as claimant-specific information. Once the FECA PBM is phased in, use of an employing agency pharmacy (PBM) program is no longer permissible.


2. Additional phases are estimated to be deployed over the next several months of Fiscal Year 2021, and will include the development and implementation of a (1) formulary management system (2) user interface for pharmacy authorization transmittals (3) utilization review programs (4) DME and diagnostic testing programs along with other programs to assist FECA claimants and FECA program staff. Subsequent FECA Bulletins containing the details of those phases will be issued once those phases are ready for deployment.
    
3. Additional information and updates will be posted on the FECA website and provided to the subscriber list references on the FECA website.

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All DFELHWC Staff

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FECA BULLETIN NO. 21-08                                                                                                                                                                      March 26, 2021

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Subject: Telemedicine for Routine Appointments – Updated

This Bulletin supersedes FECA Bulletin 21-02

On October 22, 2020, the Division of Federal Employees', Longshore and Harbor Workers' Compensation – Federal Employees’ Compensation Act (FECA) Program published FECA Bulletin No. 21-02 (Telemedicine for Routine Appointments) to outline FECA’s telehealth policy. Since that date, FECA’s Program Integrity Unit (PIU) has reviewed billing data to evaluate compliance. Based on those findings, the FECA program is making minor updates to the existing policy.

1. The following codes are being added as payable telehealth services since the PIU determined these codes are necessary and/or customary for treatment of work-related injuries:
        96130 PSYCL TST EVAL PHYS/QHP 1ST
        96131 PSYCL TST EVAL PHYS/QHP EA
        96132 NRPSYC TST EVAL PHYS/QHP 1ST
        96133 NRPSYC TST EVAL PHYS/QHP EA
        96137 PSYCL/NRPSYC TST EVAL PHYS/QHP EA
        96138 PSYCL/NRPSYC TECH 1ST
        S9999 Sales Tax (as required by law e.g. HI)


2. The following CPT codes are being removed:
        99421 online digital evaluation - 5-10 minutes
        99422 online digital evaluation - 11-20 minutes
        99423 online digital evaluation - 21 or more minutes
   The PIU determined they were incorrectly added during the initial policy implementation, were not billed at all as telehealth services since policy implementation in October 2020, and there are other covered codes that could be used for services.


3. Two additional provider types are being approved for telehealth services:
        Podiatrists
        Insurance Company (Third Party Carriers) if the originating provider type
        and procedure codes are within established policy


4. Requirements for telehealth medical reports (to include the length of visit) are being emphasized since some reports reviewed by the PIU were determined to be insufficient.

For ease of use, FECA is re-publishing the contents of FECA Bulletin 21-02 in its entirety with the above updates incorporated as part of this Bulletin

The effective date for the new policy is March 27, 2021.

Background (from Bulletin No. 21-02):

The Health Resources and Services Administration (HRSA) of the U.S. Department of Health and Human Services (HHS) defines telehealth as “the use of electronic information and telecommunications technologies to support and promote long-distance clinical health care, patient and professional health-related education, and public health and health administration.”¹

Under the Federal Employees' Compensation Act (FECA), the Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) may provide to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103.

While the FECA program has previously allowed telehealth services, in accordance with the discretion granted to DOL and delegated to OWCP, the FECA program is instituting a new policy concerning telehealth services available to employees receiving medical benefits under the FECA.

The FECA program is fully aware that some treating physicians or providers may be constrained in their ability to practice telemedicine by the requirements of either state law or their licensing authorities.  The FECA program does not have the authority to countermand or absolve physicians of their responsibility to follow those requirements, and recognizes that such requirements must be observed by the physicians to whom they apply. This includes the requirement that the physician must be physically located in the same state as the claimant’s residence while providing telemedicine (or must be licensed to practice medicine in the state where the claimant resides).

Telemedicine is optional, not required.

Purpose: To provide the FECA approved telehealth services and establish how telehealth services must be submitted for reimbursement.

Applicability: All FECA personnel and medical providers.

Reference: Federal (FECA) Procedure Manual, Part 5 Benefit Payments and Part 3 Medical, Chapter 3-0300 Authorizing Examination and Treatment, and Chapter 3-0400 Medical Services and Supplies. 20 C.F.R. § 10.300; 20 C.F.R. § 10.304; 20 C.F.R. § 10.310; 20 C.F.R. § 10.335.

Action (Revised and Updated from Bulletin No. 21-02):

1. In accordance with FECA regulations, policies and procedures, authorized providers may provide routine medical care through telemedicine (when that care is associated directly with one or more accepted conditions), without pre-authorization. This includes physical and occupational therapy. Some services may still require authorization in accordance with FECA procedures, but there is no specific pre-authorization required to provide the service via telehealth.
2. A provider may choose to conduct a routine medical appointment utilizing telemedicine options (including phone, video conferencing or similar technologies as permitted by state law) which the provider believes will provide the most appropriate medical benefit to the claimant. The provider should conduct telemedicine in private settings, such as a physician in a clinic or office connecting to a patient who is at home or at another clinic. Providers should carefully observe privacy precautions and use private locations; claimants should not receive telemedicine services in any other setting without the claimant’s consent. In the exercise of their professional judgment, the provider may determine that, to best meet the medical needs of the claimant, the telemedicine appointment may be facilitated by a medical professional on site with the claimant. In these circumstances, the physician may have a Registered Nurse (RN), Advanced Practice Nurse Practitioner (APNP), or Physician Assistant (PA) present with the claimant during the telemedicine appointment. If a field nurse is assigned to the case, the nurse may participate telephonically in the appointment.
3. There are a limited number of services approved by the FECA program that can be provided through telemedicine. Covered telehealth services are analogous with services payable by the Centers for Medicare & Medicaid Services (CMS) but are not inclusive of all CMS approved services. The FECA program may consider updates based on future needs of the program. See attached “List of Allowable Telehealth Services”.
4. Provider types eligible to be reimbursed for telehealth services in the FECA program are limited to: 25 Physician, 32 Psychologist (with Specialty type 42 for psychiatrists), 77 Social Worker, 28 Chiropractor, 27 Podiatrist, 72 Occupational Therapist, 71 Physical Therapist, and 95 Insurance Company (Third Party Carriers), if the originating provider type and procedure codes are within established policy. Eligible provider types may be modified based on future needs of the program.
5. Providers should bill utilizing appropriate modifiers, billing codes, and the claimant’s address as the location of delivery of the medical care if applicable. OWCP recognizes modifiers GT (via interactive audio and video telecommunications systems), GQ (via an asynchronous telecommunications system), and 95 (synchronous telemedicine service rendered via a real-time interactive audio and video telecommunications system) as required billing code modifiers for telehealth services. Providers should use the most appropriate place of service (POS) when billing. For telemedicine or home services the following POS should be used: 12 - Patient home (if the claimant is located at home during the visit).
6. If other appropriate medical professionals participated in the telemedicine appointment, then they may bill using non-telemedicine billing codes appropriate to their visit in the home as long as they were not already in the home for another authorized, billable service.
7. Along with the bill for services, the provider must provide the following information when the bill is submitted for payment:

   a) Appointment Notes that articulate the method of telemedicine that the provider employed and the length of visit (prolonged services in physical condition cases should be rare)

   • Including the length of the visit is required as this allows the FECA Program the ability to verify that the services provided have been accurately reported and billed;

   b) Any vitals or medical evidence collected;

   c) An outline of the medical need and the benefit derived from the appointment, as it relates to the claimant’s accepted condition(s); and

   d) The additional contents of the notes should comport with the FECA Regulations set forth at 20 C.F.R. § 10.330.

8. OWCP staff will conduct reviews of this documentation to monitor and verify that the requirements for payment were met. If discrepancies are identified, they will work with the provider to overcome issues prior to initiating recoupment of payments made or other action.

Disposition: This bulletin is effective March 27, 2021 and is to be retained until incorporated into the FECA Procedure Manual.

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

¹ https://www.hhs.gov/hipaa/for-professionals/faq/3015/what-is-telehealth/index.html

Attachment to Bulletin 21-08:
There are a limited number of services covered under Telehealth for FECA. This table lists the CPT/ HCPCS codes that can be billed for telehealth.

LIST OF ALLOWABLE TELEHEALTH SERVICES

Code	Description
90785	Psytx complex interactive
90791	Psych diagnostic evaluation
90792	Psych diag eval w/med srvcs
90832	Psytx w pt 30 minutes
90833	Psytx w pt w e/m 30 min
90834	Psytx w pt 45 minutes
90836	Psytx w pt w e/m 45 min
90837	Psytx w pt 60 minutes
90838	Psytx w pt w e/m 60 min
90839	Psytx crisis initial 60 min
90840	Psytx crisis ea addl 30 min
90847	Family psytx w/pt 50 min
96130	PSYCL TST EVAL PHYS/QHP 1ST
96131	PSYCL TST EVAL PHYS/QHP EA
96132	NRPSYC TST EVAL PHYS/QHP 1ST
96133	NRPSYC TST EVAL PHYS/QHP EA
96136	Psycl/nrpsyc tst phy/qhp 1s
96137	PSYCL/NRPSYC TST EVAL PHYS/QHP EA
96138	PSYCL/NRPSYC TECH 1ST
97110	Therapeutic exercises
97112	Neuromusulcar reeducation
97116	Gait training therapy
97161	PT Eval low complex 20 min
97162	PT Eval mod complex 30 min
97163	PT Eval high complex 45 min
97164	PT re-eval est plan care
97165	OT eval low complex 30 min
97166	OT eval mod complen 45 min
97167	OT eval high complex 60 min
97168	OT re-eval est plan care
97530	Therapeutic activities
97535	Self care mngment training
97542	Wheelchair mngment training
97750	Physical Performance Test
97755	Assistive Technology Assess
97760	Orthotic mgmt&traing 1st en
97761	Prosthetic traing 1st enc
99201	Office/outpatient visit new
99202	Office/outpatient visit new
99203	Office/outpatient visit new
99204	Office/outpatient visit new
99205	Office/outpatient visit new
99211	Office/outpatient visit est
99212	Office/outpatient visit est
99213	Office/outpatient visit est
99214	Office/outpatient visit est
99215	Office/outpatient visit est
99232	Subsequent hospital care
99354	Prolong e&m/psyctx serv o/p
99355	Prolong e&m/psyctx serv o/p
99367	Medical Team Conference
99441	Phone e/m phys/qhp 5-10 min
99442	Phone e/m phys/qhp 11-20 min
99443	Phone e/m phys/qhp 21or more min
99080	Special Reports
G0508	Crit care telehea consult 60
Q3014	Telehealth originating site facility fee

 

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FECA BULLETIN NO. 21-09

April 28, 2021

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Subject: Processing FECA Claims for COVID-19 under the American Rescue Plan Act of 2021

Background: The Federal Employees' Compensation Act (FECA) covers injury in the performance of duty; injury includes a disease proximately caused by federal employment. The U.S. Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) Division of Federal Employees', Longshore and Harbor Workers' Compensation (DFELHWC) administers the FECA. The FECA provides to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103. The FECA pays compensation for the disability or death of an employee resulting from injury in the performance of duty.

On March 11, 2021, the American Rescue Plan Act of 2021 (ARPA) was signed into law. This new legislation streamlines the process for federal workers diagnosed with COVID-19 to establish coverage under the FECA. Specifically, Section 4016 of the ARPA provides that a “covered employee” as defined below shall, with respect to any claim made by or on behalf of the covered employee for benefits under the FECA, be deemed to have an injury proximately caused by exposure to COVID-19 arising out of the nature of the covered employee’s employment.

Under Section 4016 of the ARPA, the term “covered employee” means an individual:

• Who is an employee under Section 8101(1) of title 5, United States Code, employed in the Federal service at any time during the period beginning on January 27, 2020, and ending on January 27, 2023;
• Who is diagnosed with COVID–19 during such period; and
• Who, during a covered exposure period prior to such diagnosis, carries out duties that—
  • require contact with patients, members of the public, or co-workers; or
  • include a risk of exposure to the novel coronavirus.

Previously, COVID-19 claims under the FECA were processed under the guidelines provided by FECA Bulletin No. 20-05 (released March 31, 2020) and FECA Bulletin No. 21-01 (released October 21, 2020). This Bulletin supersedes FECA Bulletins 20-05 and 21-01.

With respect to all COVID-19 cases processed under the ARPA, no benefits are payable after September 30, 2030. This statutory limitation on benefits does not apply to COVID-19 claims accepted prior to March 12, 2021.

Purpose: To provide guidance regarding the processing of COVID-19 FECA claims as set forth in the ARPA.

Actions:

I. Cases Processed Prior to the American Rescue Plan Act of 2021.

1. Previously Accepted Cases. Any COVID-19 claim filed under the FECA that was accepted for COVID-19 prior to March 12, 2021 is not impacted because coverage for benefits had already been extended. Any case accepted on or before March 11, 2021 (the date of enactment) is not an ARPA case; such cases are not subject to Section 4016’s limitation that no benefits may be paid after September 30, 2030.


2. Previously Denied Cases. The FECA program will review all COVID-19 claims previously denied based on a lack of federal exposure or a lack of medical evidence establishing causal relationship to determine if the claim can now be accepted under the ARPA. This will occur without a request from the claimant. If the FECA program determines that the case can now be accepted under the ARPA, the case will be reopened under the Director’s own motion under Section 8128(a) of the FECA, and the case will be accepted. If this occurs, the claimant and Employing agency will be notified. The case will be converted to a “19” prefix case and the C19 indicator will be added as addressed in paragraph III below.


3. Previously Administratively Closed Cases. No action will be taken based on the ARPA on COVID-19 cases already administratively closed. The claimant remains eligible for Continuation of Pay (COP) pursuant to 20 CFR 10.205 - 224, if Form CA-1 was timely filed, and medical bills for basic treatment incurred for COVID-19, to include any testing, are still payable up to $1500. However, any future actions, if necessary, will be taken in accordance with the ARPA since the claim had not been formally accepted, so each of these cases has been converted to a “19” prefix case, and the C19 indicator will be added as addressed in paragraph III below.

II. Filing of Cases under the American Rescue Plan Act of 2021

1. Form Filing Process. The Employees’ Compensation and Management Portal (ECOMP) should be used to file new claims as the form filing process in ECOMP has been updated to assist claimants and employing agencies with filing claims for COVID-19 on a CA-1.


2. Use of the CA-1. The FECA program considers COVID-19 to be a traumatic injury since it is contracted during a single workday or shift (see 20 CFR 10.5(ee)), and considers the date of last exposure prior to the medical evidence establishing the COVID-19 diagnosis as the Date of Injury since the precise time of transmission may not always be known due to the nature of the virus.


3. Update to the CA-1 in ECOMP. To assist the FECA Program with collecting necessary information to make determinations under the ARPA, the claimant and agency are provided with specific instructions that are intended to supplement the routine claim filing questions. These instructions are documented in the attachment to this Bulletin.

III. Creation of Cases under the American Rescue Plan Act of 2021

1. Creation and Administrative Closure of Cases. Consistent with PM 1-0400.4, cases not expected to involve large medical expenses or extended disability may be administratively closed without formal adjudication by claims staff. COVID-19 cases filed under the ARPA will administratively close like other cases, and assignment of Triage Nurses will occur using the same criteria as other cases.


2. Nature of Injury, Cause of Injury and Location of Injury Codes. All cases filed after March 11, 2021 for COVID-19 will use the following codes:
    

   Nature of Injury - COVID-19 (T9)
   Cause of Injury - Exposure to COVID-19 (9C)
   Location of Injury - COVID-19 (ZZ)



3. Case Indicator. For COVID-19 claims filed after March 11, 2021, a new internal special tracking indicator (C19 – COVID-19) will be assigned. This replaces the previous indicator (COR). Cases received on and prior to March 11, 2021 that were pending adjudication will have their case indicator changed from COR to C19.


4. Case Prefix. All cases filed after March 11, 2021 for COVID-19 will have a prefix “19” rather than the current prefix “55” used in other new FECA claims. Cases received on or prior to March 11, 2021, that were pending adjudication will have their case number changed such that the prefix is “19.”


5. Case Number Conversion Notification. In all instances where a case number is changed to a “19” prefix, regardless of the reason, a letter will be sent to the claimant and agency notifying them of the change.

IV. Case Adjudication Procedures under the American Rescue Plan Act of 2021

1. Employee. The claims examiner should make a determination as to whether the employee is an employee under 5 U.S.C. 8101(1) of the FECA and whether he or she was diagnosed with COVID-19 (in accordance with paragraph 2 below) between January 27, 2020, and January 27, 2023. If it is determined that the employee was an employee under Section 8101(1) but diagnosed with COVID-19 outside of the period of January 27, 2020, through January 27, 2023, routine FECA case handling procedures apply.
   
   Individuals otherwise covered under FECA but not covered under Section 8101(1) of title 5, United States Code are not covered under the ARPA and routine FECA case handling procedures apply. Examples include state or local law enforcement officers not employed by the United States who are covered under 5 U.S.C. 8191-8193.


2. Diagnosis of COVID-19. In order to establish a diagnosis of COVID-19, an employee (or survivor) should submit:
    

   a. A positive Polymerase Chain Reaction (PCR) COVID-19 test result; or
   
   b. A positive Antibody or Antigen COVID-19 test result, together with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not sufficient if there was no evidence of illness); or
   
   c. If no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.
   
   In certain rare instances, a physician may provide a rationalized opinion with supporting factual and medical background as to why the employee has a diagnosis of COVID-19 notwithstanding a negative or series of negative COVID-19 test results.

   Medical reports from nurses or physician assistants are acceptable if a licensed physician cosigns the report.


3. Covered Exposure. The employee is deemed to have had exposure if, during the covered exposure period, he or she carries out (1) duties that require a physical interaction with at least one other person (a patient, a member of the public, or a co-worker) in the course of employment duties, or (2) duties that otherwise include a risk of exposure to COVID-19. The interaction does not have to be direct physical contact. Nor is there a specified time for such interaction, any duration qualifies. General office contact and interaction is sufficient. This includes but is not limited to interaction in shared workspaces such as lunchrooms, break areas and common restrooms.


4. Covered Exposure Period. The evidence should establish manifestation of COVID-19 symptoms (or positive test result) within 21 days of the covered exposure described in paragraph 3 above.
   
   Existing medical literature suggests that the incubation period of COVID-19 is between two and 14 days; however, the use of 21 days acknowledges an employee’s potential delay in seeking professional medical evaluation and treatment.


5. Teleworking Employees. An employee that is exclusively teleworking during a covered exposure period is not considered a “covered employee” under the ARPA. For such cases, routine FECA case handling procedures apply.


6. Adjudication and Disposition of Claims.
    

   a. Claim Acceptances: If, following any appropriate development, the evidence establishes that the employee meets the definition of “covered employee” under Section 4016 of the ARPA, the employee’s COVID-19 will be deemed proximately caused by Federal employment and the claim will be accepted for COVID-19.
   
   b. Claim Denials: If, following appropriate development, the evidence fails to establish that the employee was diagnosed with COVID-19, the claim will generally be denied on that basis. If, following appropriate development, the evidence fails to establish any covered exposure during a covered exposure period as defined in paragraphs 1, 3, 4 and 5 above, the claim will generally be denied based upon the failure to establish exposure to COVID-19 occurred in the performance of Federal employment.
   
   d. Withdrawal of Claim: Certain COVID-19 claims may have been filed preventatively for exposure only, due to quarantine, or otherwise filed prematurely. In such circumstances, an employee may decide not to pursue his or her claim. A claimant may withdraw his or her claim in writing (but not the notice of injury) at any time before OWCP determines eligibility for benefits. See 20 CFR 10.100 (b)(3). However, any COP granted to an employee after a claim is withdrawn must be charged to sick or annual leave, or considered an overpayment of pay consistent with 5 U.S.C. 5584, at the employee's option.

7. Duplicate Claims. Generally, a claim for COVID-19 will not be considered a new injury unless the date of injury is more than 1 year from the date of injury of any prior accepted COVID-19 claim for the same employee. Rather it will be combined with the existing claim and developed as necessary as a consequential or recurrence claim.


8. Claims for Disability. The ARPA outlines the criteria to determine whether COVID-19 is deemed proximately caused by federal employment. However, acceptance of the claim for work-related COVID-19 does not alter the claimant’s burden of proof for establishing disability, the need for ongoing medical treatment and any claim for a consequential condition. See PM 2-0901.5(a)(2).


9. Death Claims. The criteria to determine whether COVID-19 is deemed proximately caused by federal employment are the same for claims involving death. However, in death cases, the FECA program will also ask for evidence and records to support that the death was the result of COVID-19, or that COVID-19 was a contributing cause of death. This will typically include hospital records showing treatment, a hospital death discharge summary detailing the cause of death, and/or a death certificate but may also include other documentation depending on the circumstances of the case.

V. Non-Chargeable Flag

In accordance with Section 4016(d) of the American Rescue Plan Act of 2021, all cases flagged as an ARPA case with the “19” prefix will be flagged as non-chargeable in the FECA database, meaning it will not be included in annual chargeback billing.

Disposition: This Bulletin is to be retained until incorporated into the FECA Procedure Manual.

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All DFELHWC – FECA Program Staff

Attachment: CA-1 ECOMP Prompts for COVID-19 Claims under the ARPA

Attachment to FECA Bulletin 21-09
CA-1 ECOMP Prompts for COVID-19 Claims under the ARPA

A. Claimant Portion of the CA-1. Upon selecting to file a new claim in ECOMP, the claimant is provided a new option to file a COVID specific CA-1. If they choose this option, the following prompts will supplement the routine process:

1. Date and Time Injury Occurred. The claimant is asked about the last date he or she was exposed to others in the work setting prior to the onset of COVID-19 symptoms or a positive COVID-19 test result.
2. Cause of Injury. The claimant is asked to explain what individuals he or she was exposed to in the workplace and the nature and extent of the interaction(s).
3. Nature of Injury. The claimant is asked to explain symptoms related to COVID-19, whether he or she has received a positive test result for COVID-19 and whether he or she has consulted with a medical professional.
4. Upload Attachments Option. The claimant is asked specifically to upload a copy of a COVID-19 positive test result and any documentation of interactions with a medical professional.

B. Supervisor Portion of the CA-1. In COVID-19 claims, agencies are provided with specific questions that deviate from the routine process as outlined below:

1. Performance of Duty (POD). The employing agency is advised to only indicate the employee is not in POD if the employee was not working or was teleworking on the date of injury, or if the supervisor disagrees substantively with the employee’s description of injury.


2. Third Party Liability. The answer to this question will default to no third party liability for COVID-19 cases.


3. Anatomical Location, Nature of Injury, Cause of Injury. These responses will be automatically filled in accordance with the codes in section III, part 2 of this Bulletin.


4. Agreement with the Employee. The employing agency will be advised to only indicate “no” if the employee was not working or was teleworking on the date of injury, or if the supervisor disagrees substantively with the employee’s description of injury.


5. Controversion of COP. The employing agency will be advised to only controvert COP if one of the specific nine regulatory reasons applies. That reason must be selected and explained.


6. CA-16. The employing agency is prompted to provide a CA-16 if they do not substantively dispute the employee’s description of Cause and Nature of Injury, and if the claim was submitted within 1 week of the Date of Injury, or the date the employee had symptoms of COVID-19 or received a positive test result. Issuing the CA-16 will allow the claimant to obtain the necessary test to confirm COVID-19 and receive medical treatment, if indicated.

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FECA BULLETIN NO. 21-10

August 18, 2021

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Subject: Establishing FECA Claims for COVID-19 under the American Rescue Plan Act of 2021 through Antigen Testing

Background: The Federal Employees' Compensation Act (FECA) covers injury in the performance of duty; injury includes a disease proximately caused by federal employment. The U.S. Department of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) Division of Federal Employees', Longshore and Harbor Workers' Compensation (DFELHWC) administers the FECA. The FECA provides to an employee injured while in the performance of duty, the services, appliances, and supplies prescribed or recommended by a qualified physician, which OWCP considers "likely to cure, give relief, reduce the degree or the period of disability, or aid in lessening the amount of the monthly compensation." See 5 U.S.C. 8103. The FECA pays compensation for the disability or death of an employee resulting from injury in the performance of duty.

On March 11, 2021, the American Rescue Plan Act of 2021 (ARPA) was signed into law. This new legislation streamlined the process for federal workers diagnosed with COVID-19 to establish coverage under the FECA.

On April 28, 2021, the FECA Program issued FECA Bulletin 21-09, which provided detailed processing procedures for claims for COVID-19 filed under the ARPA.

FECA Bulletin 21-09 provided that, in order to establish a diagnosis of COVID-19, an employee (or survivor) should submit:

a. A positive Polymerase Chain Reaction (PCR) COVID-19 test result; or

b. A positive Antibody or Antigen COVID-19 test result, together with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not sufficient if there was no evidence of illness); or

c. If no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.

In certain rare instances, a physician may provide a rationalized opinion with supporting factual and medical background as to why the employee has a diagnosis of COVID-19 notwithstanding a negative or series of negative COVID-19 test results.

Antigen tests detect specific proteins on the surface of the coronavirus. They are sometimes referred to as rapid diagnostic tests because it can take less than an hour to get the test results. Positive antigen test results are highly specific, meaning that if you test positive you are very likely to be infected.¹

As antigen testing has become more prevalent over the course of the COVID-19 pandemic, the FECA Program will no longer require contemporaneous medical evidence submitted together with an antigen test to establish the diagnosis of COVID-19. Submission of an antigen test alone is now sufficient to establish the medical component of a COVID-19 claim.

Purpose: To provide amended guidance regarding the processing of COVID-19 FECA claims as set forth in the ARPA.

Actions:

1. Diagnosis of COVID-19. With respect to Case Adjudication procedures under the ARPA, the following diagnostic criteria now apply:

In order to establish a diagnosis of COVID-19, an employee (or survivor) should submit:

a. A positive Polymerase Chain Reaction (PCR) or Antigen COVID-19 test result; or

b. A positive Antibody test result, together with contemporaneous medical evidence that the claimant had documented symptoms of and/or was treated for COVID-19 by a physician (a notice to quarantine is not sufficient if there was no evidence of illness); or

c. If no positive laboratory test is available, a COVID-19 diagnosis from a physician together with rationalized medical opinion supporting the diagnosis and an explanation as to why a positive test result is not available.

In certain rare instances, a physician may provide a rationalized opinion with supporting factual and medical background as to why the employee has a diagnosis of COVID-19 notwithstanding a negative or series of negative COVID-19 test results.

Medical reports from nurses or physician assistants are acceptable if a licensed physician cosigns the report.

2. Previously Denied Cases. The FECA program will review all COVID-19 claims previously denied in accordance with the guidance provided in FECA Bulletin 21-09 based on the submission of an antigen test without contemporaneous medical to determine if the claim can now be accepted. This will occur without a request from the claimant. If the FECA program determines that the case can now be accepted under the ARPA, the case will be reopened under the Director's own motion under Section 8128(a) of the FECA, and the case will be accepted. If this occurs, the claimant and employing agency will be notified.

Disposition: This Bulletin amends FECA Bulletin 21-09 and is to be retained until incorporated into the FECA Procedure Manual.

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¹ https://www.health.harvard.edu/diseases-and-conditions/if-youve-been-exposed-to-the-coronavirus

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All DFELHWC – FECA Program Staff

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FECA BULLETIN NO. 21-11

Issue Date: September 1, 2021

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Subject: Retention of the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th Edition (2009).

Background: The schedule award provisions of the Federal Employees' Compensation Act (FECA) at 5 U.S.C. 8107 and its implementing regulations at 20 C.F.R. 10.404 establish the compensation payable to employees sustaining permanent impairment. For consistent results, and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables with uniform standards applicable to all claimants. The American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment has been adopted by the Office of Workers' Compensation Programs (OWCP) FECA Program as the appropriate standard for evaluating schedule losses. In January 2008, the AMA published the Sixth Edition of the Guides, noting that the Guides are revised periodically to incorporate current scientific clinical knowledge and judgment. This Edition implemented substantial reforms to the methodology of calculating permanent impairment. In accordance with its established practice, the FECA Program moved forward to this most recent version of the Guides in evaluating permanent impairment.

In August 2008, a 54-page "Clarifications and Corrections, Sixth Edition, Guides to the Evaluation of Permanent Impairment" was distributed. The 54-page publication specified clarifications and corrections to the original printing of the Sixth Edition of the Guides. Subsequently, the FECA Program adopted this most recent version of the Sixth Edition of the Guides on March 15, 2009, with an effective date of May 1, 2009. See FECA Bulletin 09-03. The most recent version of the Sixth Edition at that time was the second printing of the Sixth Edition in 2009, which incorporated the clarifications and corrections which were published in August 2008.

In April 2021, the AMA announced the commencement of regular updates to the Sixth Edition of the Guides. In addition, the AMA further reported a transition to a digital platform and subscription service for the current and all future updates to the Sixth Edition of the Guides. These updates are to be posted on the AMA Guides Digital Website approximately three months prior to their effective date.

The first update to the Sixth Edition made in accordance with the new AMA policy, AMA Sixth Edition 2021, was made available on April 1, 2021 and became effective on July 1, 2021.

All substantive updates made in the AMA Sixth Edition 2021 relate to mental and behavioral health conditions, including changes in terminology and methodology related to the mental and behavioral health content¹. As the FECA Program has no statutory or regulatory authority to provide schedule awards for mental health impairment, the changes in AMA Sixth Edition 2021, if adopted by the Program, would not have any significant impact on its schedule award impairment calculations.

As noted above, the FECA Program has been using the Sixth Edition since 2009. In that time, the Program has worked with its attending physicians, second opinion and referee physicians, and District Medical Advisors to provide clear, consistent, and accurate impairment ratings using this version of the Guides Adoption of the AMA Sixth Edition 2021 at this time would place an undue burden on the Program's stakeholders. It would require the procurement, learning, and understanding of a new and digital edition of the Guides despite such edition having no material impact on impairment ratings provided under the FECA.

As such, it is in the best interest of the FECA Program to retain the second printing of the Sixth Edition (2009) at this time. Future updates of the Guides will continue to be monitored and updated versions may be adopted depending on their impact on the FECA Program and alignment with its goal of providing fair and consistent impairment awards to injured Federal workers.

Purpose: To provide notice that although the Sixth Edition of the AMA Guides have recently been updated, the FECA Program will be maintaining the use of the second printing of the Sixth Edition (2009) rather than adopting the latest updated version.

Reference: 5 U.S.C. 8107 and 20 C.F.R. 10.404. This Bulletin supplements the information contained in the FECA Procedure Manual 3-0700 and 2-0808, as well as FECA Bulletin No. 09-03 and FECA Bulletin No. 17-06.

Action: No change or action is necessary at this time, and the FECA Program will continue to use the second printing of the Sixth Edition (2009) to evaluate permanent impairment.

Any impairment report in which impairment is assessed using a more recent version of the Sixth Edition should be returned to the rating physician with instructions to evaluate impairment under the second printing of the Sixth Edition (2009).

Applicability: Claims Examiners, Quality Assurance and Mentoring Examiners, Supervisory Claims Examiners, Hearing Representatives, District Medical Advisors, and Claims Assistants.

Disposition: This Bulletin is to be retained until incorporated unto the FECA Procedure Manual.

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¹ https://www.ama-assn.org/delivering-care/ama-guides/ama-guides-sixth-2021-current-medicine-permanent-impairment-ratings

 

ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All Appropriate FECA Program Staff

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FECA BULLETIN NO. 21-12                                                                                                                                  September 30, 2021

Subject: Release of Privileged Medical Records

Background: The Privacy Act of 1974 provides that federal agencies “establish procedures for the disclosure to an individual upon his request of his record or information pertaining to him, including special procedure, if deemed necessary, for the disclosure to an individual of medical records, including psychological records, pertaining to him.” 5 U.S.C. 552a(f)(3). In accordance with the Privacy Act and the Department’s implementing regulations, the OWCP Procedure Manual currently provides that where a claimant requests medical records that discuss psychiatric conditions, the CE should ask the District Medical Advisor (DMA) whether releasing such information would constitute a danger to the claimant or others; and if so, the CE should instruct the claimant that the medical records will instead be provided to the claimant’s treating physician. See OWCP Procedure Manual, Chapter 1-0400-7(a)(1)(A); see also 29 C.F.R. 71.4(d).

Since establishing this procedure, federal courts have found that the Privacy Act clearly directs agencies to devise special procedures for disclosure of medical records in cases in which direct transmission could adversely affect a requesting individual, but that these procedures eventually must lead to disclosure of the records to the requesting individual. See Bavido v. Apfel, 215 F.3d 743, 748-50 (7th Cir. 2000). Current Department of Justice (DOJ) guidelines further provide that while agencies have the freedom to promulgate special procedures to limit potential harm from individual access to medical records, many courts have held that agency rules for disclosure of medical records may not create, in effect, a new substantive exemption from accessing medical records that would otherwise be available under the Privacy Act. This bulletin provides revised procedures consistent with the Privacy Act, case law, and current DOJ guidance.

Reference: OWCP Procedure Manual Chapter 1-0400

Purpose: To provide revised procedures in situations where the FECA Program determines that release of medical documentation to an injured worker would represent a health or safety risk to themselves or others.

Applicability: All DFELHWC FECA Program Staff

Action: The claims examiner (CE) should take the following steps if he or she identifies a case in which there is an indication that there may be a health or safety risk in allowing a claimant direct immediate access to his or her medical records. This identification should be made based on evidence, not accepted condition and could be made in scenarios that include but are not limited to (1) while reviewing a copy request, (2) while reviewing a second opinion report or other medical evidence, or (3) while taking a phone call. Examples of cases that require further review are ones in which the medical evidence discusses suicidal or homicidal tendencies or the claimant demonstrates threatening behavior.

In these cases:

1. The CE should provide the case number and recommendation to the Branch of Regulations and Procedures (R&P) through a designated e-mail address.
2. R&P will review the request and make a final determination.
3. Should R&P disagree with the CE recommendation, the CE will be advised and no further action is needed. Any pending Privacy Act requests can be processed in accordance with established procedure.
4. Should R&P agree with the CE determination, the claimant’s case file will be notated accordingly, and a letter will be issued to the claimant explaining the determination and their Privacy Act appeal rights. See action item six below. The letter will advise the claimant that they will be restricted from viewing his or her medical records in the Employees’ Compensation Operations and Management Portal (ECOMP). The letter determination will be visible in ECOMP with a specific category/subject (Outgoing/Medical Records Restricted) so that the claimant is aware of the reason why no medical records are visible in ECOMP.
5. If there is a pending Privacy Act or copy request, subsequent actions will depend on whether the claimant has designated an authorized representative in accordance with 20 C.F.R. 10.700.

   a. If the claimant has a designated authorized representative, a copy of the requested medical records should instead be provided to the authorized representative of record. The claimant should be notified and advised to contact the authorized representative, who will review the medical records with the claimant and then provide the claimant a copy of the requested medical records.

   b. If the claimant has not designated an authorized representative, the claimant should be advised that OWCP is unable to release medical records directly to them due to concerns over the safety of the claimant and others. Instead, the claimant should be instructed to designate an individual (such as a physician, health professional, or other responsible individual) who is willing to receive medical records on the claimant’s behalf, review them, and then share them with and release them to the claimant.

6. 6. Should the claimant disagree with the case file access restrictions indicated in the letter issued pursuant to action item four above, they may file an administrative appeal to the Solicitor of Labor within 90 days of the date of the determination, by mail, fax, or email, and in accordance with the specific requirements set forth in the provided appeal rights. See 29 C.F.R. 71.7.

Disposition: This Bulletin is to be retained until otherwise revised or incorporated into Part 1 of the OWCP Procedure Manual.

 

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ANTONIO RIOS
Director for
Division of Federal Employees’, Longshore and Harbor Workers’ Compensation

Distribution: All DFELHWC FECA Program Staff

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FECA BULLETIN NO. 20-06

Issue Date: June 5, 2020

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Subject: Change in collection procedures for debt owed to the Division of Federal Employees' Compensation (DFEC).

Background: 20 CFR §10.441(b) provides that when an overpayment has been made to an individual who is not entitled to further payments, the individual shall refund to the Office of Workers' Compensation (OWCP) the amount of the overpayment as soon as the error is discovered or his or her attention is called to the same.

The overpayment is subject to the provisions of the Federal Claims Collection Act of 1966 (as amended), 31 U.S.C. §§ 3701-3720A, and may be reported to the Internal Revenue Service as income. If the individual fails to make such refund and the overpayment cannot be recovered from continuing compensation, the OWCP may recover the debt through any available means, including offset of salary, annuity benefits, or other Federal payments, including tax refunds as authorized by the Tax Refund Offset Program, or referral of the debt to a collection agency or to the Department of Justice.

Previously, if DFEC could not recover an overpayment from continuing compensation or through similar, alternative means, the debtor was required to submit a paper check by mail.

If a payment was not received in response to the Final Overpayment Determination, DFEC staff issued demand letters and referred the debt to the Treasury for collection, when appropriate.

Applicability: Appropriate National Office and District Office personnel.

Reference: 5 U.S. C. § 8129, 31 U.S.C. §§ 3701-3720A, 20 C.F.R. §10.441, Chapter 6-0100, Introduction and Chapter 6-0500, Debt Liquidation, Part 6, Debt Management, Federal (FECA) Procedure Manual.

Action:

1. Once a Final Overpayment Determination has been issued to a debtor, and recovery cannot be made from continuing compensation payments, DFEC staff will refer the debt and a copy of the decision to National Office for submission to Treasury's Centralized Receivable Service (CRS). CRS will collect payments on behalf of the program and pursue collection actions including referrals for Cross Servicing.
2. Payments received through CRS will be posted to the account via the debt management application in the integrated Federal Employees' Compensation System (iFECS).

Disposition: This bulletin should be retained until incorporated into Chapter 6-0500, Debt Liquidation, of the FECA Procedure Manual.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

Distribution: All DFEC Staff

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