Active FECA Bulletins (2011-2015)

Division of Federal Employees' Compensation (DFEC)

FECA Bulletins have been divided into five-year groups to make it easier for you to search and find the information you are looking for. Active War Hazards Compensation Act (WHCA) Bulletins have been moved to their own location.

2015, 2013, 2012, 2011

Fiscal Year 2015
Bulletin	Subject
FECA Bulletin No. 15-01	War Hazards Compensation Act (WHCA) Bulletins have been moved to their own location.

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Fiscal Year 2013
Bulletin	Subject
FECA Bulletin No. 13-01	War Hazards Compensation Act (WHCA) Bulletins have been moved to their own location.
FECA Bulletin No. 13-03	New United States Postal Service Job Classifications
FECA Bulletin No. 13-05	National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007 (NIAA)

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Fiscal Year 2012
Bulletin	Subject
FECA Bulletin No. 12-01	War Hazards Compensation Act (WHCA) Bulletins have been moved to their own location.
FECA Bulletin No. 12-05	Handling Requests for Communication Assistance, Accommodations, and Modifications Under Federal Disability Nondiscrimination Law by Claimants and Others in the Federal Employees' Compensation Act (FECA) Adjudicatory Process

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Fiscal Year 2011
Bulletin	Subject
FECA Bulletin No. 11-01	Federal Reform Changes for Federal Benefits under the Affordable Care Act
FECA Bulletin No. 11-04	Schedule A Initiative
FECA Bulletin No. 11-05	Usage Guidelines for Fentanyl Products
FECA Bulletin No. 11-06	DFEC Regulations, Published June 28, 2011
FECA Bulletin No. 11-08	Exclusion of Providers

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FECA BULLETIN NO. 13-03

Issue Date: June 18, 2013

Subject: New United States Postal Service Job Classifications

Background: The United States Postal Service (USPS) has created two new non-career positions:

City Carrier Assistant (CCA), effective April 2013
Mail Handler Assistant (MHA), effective June 2013

CCA and MHA employees will be hired for terms of 360 days and, if reappointed, will have a break in service of five days between appointments. Their service week will be a calendar week beginning on 12:01AM Saturday and ending at 12:00AM the following Friday. CCA and MHA employees are guaranteed either two hours or four hours of work or pay on each scheduled day that they report for duty, depending on the facility. CCA employees may be separated at any time during their term of appointment for lack of work.

Purpose: To inform the appropriate personnel of the procedures regarding payment of continuation of pay (COP) and payment of compensation to injured CCA and MHA employees.

References: 20 C.F.R. §10.216(b)(2); 5 U.SC. §8114(d)

Applicability: Appropriate National Office and District Office personnel.

Action:

A. Computation of COP

As part-time workers who generally do not work the same number of hours each week, but who do work each week of the year, COP for CCA and MHA employees should be calculated in accordance with 20 C.F.R. §10.216(b)(2). The weekly pay rate for COP is therefore the average of the weekly earnings for the year prior to the date of injury, in accordance with the following formula:

Total pay earned during one-year period prior to injury (excluding overtime), divided by 52 weeks for the year prior to the injury (or prorated if employee worked less than a year).

For purposes of this computation, a partial-work week is counted as an entire week.

B. Computation of Compensation

1. Upon receipt of a properly completed CA-7, Claim for Compensation, for a CCA or MHA employee, the CE should review the case file in accordance with established procedure to determine whether the employee is entitled to compensation for the claimed period.

2. If it is determined that the employee is entitled to compensation, the CE should then compute the pay rate. The CE should first review the USPS response in Section 9(b) of the CA-7. If the USPS indicated that the employee worked in the position for 11 months prior to injury, compensation should be paid in accordance with 5 U.S.C. 8114(d)(1).

As work hours for CCA and MHA employees are generally variable, the CE should obtain the employee's gross earnings (excluding overtime) from the USPS for the year prior to the appropriate effective pay rate date and divide by 52 to obtain the base pay rate. If applicable, the USPS should also be asked to provide gross premium pay for the year prior to the appropriate effective pay rate date for inclusion in the pay rate.

3. If, in Section 9(b) of the CA-7, the USPS indicated that the employee did not work in the position for 11 months prior to injury, but that the position would have afforded employment for 11 months but for the injury, compensation should be paid in accordance with 5 U.S.C. 8114(d)(2).

As work hours for CCA and MHA employees are generally variable, the CE should request that the USPS provide the gross earnings (excluding overtime) of an employee of the same class working substantially the whole year prior in the same or similar employment in the same or neighboring place. The CE should then divide by 52 to obtain the base pay rate. If applicable, the USPS should also be asked to provide gross premium pay amounts for inclusion in the pay rate.

4. If the USPS advises that there are no employees of the same class who have worked substantially the whole preceding year in the same or similar employment, 5 U.S.C. 8114(d)(2) is not applicable and compensation should be computed in accordance with 5 U.S.C. 8114(d)(3).

The CA-1029 and CA-1030 forms (or equivalent) should be released to the claimant and employer as appropriate. Following development, the CE should compensate the claimant by taking the highest of:

(a) The earnings of the employee in the year prior to the appropriate effective pay rate date, including any similar non-Federal employment (if no other employment this figure should be calculated by using prorated weeks like the COP calculation);

(b) The earnings of a similarly-situated employee; or

The CE may compensate the claimant using a provisional pay rate while the pay rate is being developed.

5. If the USPS indicates, in Section 9(b) of the CA-7, that the position would not have afforded employment for 11 months but for the injury, the CE should first seek clarification from the agency. CCA and MHA employees are hired for terms of 360 days, which exceeds 11 months. Should the USPS provide sufficient rationale for its notation that the position would not have afforded employment for 11 months, compensation should be computed under 5 U.S.C. 8114(d)(3). Otherwise, compensation should first be considered under 5 U.S.C. 8114(d)(2).

Note: Because the CCA and MHA positions are new to the USPS, if an employee is injured within the first 11 months after the effective date of the positions, 5 U.S.C. 8114(d)(1) will not apply initially, since the employee will not have worked in the position for 11 months.

6. MHA Position - OWCP has determined that there was not a position similar to the MHA; therefore, the CE will be unable to request the earnings of a similar employee for an MHA until someone in the particular facility (or a neighboring facility) has worked the MHA position for 11 months. This means that 5 U.S.C. 8114(d)(2) cannot initially be applied and compensation for the MHA should be computed in accordance with 5 U.S.C. 8114(d)(3).

CCA Position - However, when reviewing the duties of the CCA, OWCP has determined that a similar position did exist prior to the creation of the CCA. The Carrier Tech TE and the City Carrier (Transitional) performed similar functions to those of the CCA. Therefore the CE may apply 5 U.S.C. 8114(d)(2) by seeking the year prior earnings for the employee in that facility (or neighboring facility) who worked the most hours in the year prior in either of the Carrier Tech TE and the City Carrier (Transitional)positions.

Disposition: This bulletin is to be retained until the FECA PM has been updated.

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

Enclosures:

City Carrier Assistant 1 Job Description

City Carrier Assistant 2 Job Description

City Carrier Assistant Tech 1 Job Description

City Carrier Assistant Tech 2 Job Description

Mail Handler Assistant Job Description

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FECA BULLETIN NO. 13-05

Issue Date: August 12, 2013

Subject: National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007 (NIAA)

Background: The Brady Handgun Violence Prevention Act of 1993 required the Attorney General to establish a system that allows federal firearms dealers to determine whether a potential buyer is prohibited from receiving the firearm under the federal Gun Control Act of 1968 or state law. This system, the NICS, is a federal database that became operational on November 30, 1998.

The ability of the NICS to determine quickly and effectively whether an individual is prohibited from possessing or receiving a firearm depends on the completeness and accuracy of the information made available to it by federal, state, and tribal authorities. The NIAA was an effort to strengthen the NICS by increasing the quantity and quality of relevant records accessible to the system. Among its requirements, the NIAA mandates that federal departments and agencies provide relevant information to the Attorney General for the NICS on no less than a quarterly basis. The statute specifies that federal agencies must provide this information "notwithstanding any other law," and, as a result, information can be shared by agencies despite the otherwise applicable limitations of other laws (Privacy Act, Health Insurance Portability and Accountability Act, etc.). For any information provided, the NIAA also requires federal agencies to update, correct, modify or remove records once they become aware that information should no longer be prohibiting.

On January 16, 2013, President Obama issued a Memorandum directing the Department of Justice (DOJ) to provide guidance to agencies to improve the implementation of this law. This memorandum also required each Federal agency to issue an annual report setting forth relevant records possessed by the agency, the number of records submitted each year, and various other details concerning efforts required in connection with NICS reporting.

Purpose: To inform the appropriate Office of Workers' Compensation (OWCP) Division of Federal Employees' Compensation (DFEC) personnel of their responsibilities and the DFEC procedures required to effectively identify, track and report relevant case file records in accordance with the NIAA of 2007.

References: P. L. 110-180, NICS Improvement Amendments Act of 2007

Applicability: Appropriate National Office and District Office personnel.

Actions:

A. Prohibitors and Relevant Records

There are ten (10) categories of persons who are prohibited from shipping, transporting, possessing or receiving a firearm by federal law. For each category of prohibitors, there are relevant record types that should be reported to the NICS. Records possessed by DFEC are relevant for the NICS if they can identify an individual as being someone who is a prohibitor. Most applicable records in DFEC's possession will be obtained by DFEC rather than created by DFEC. It would be extremely rare that DFEC create a record that is relevant for reporting to the NICS; the specific circumstance outlined in #4 below would be the only instance.

Only records obtained by State or Local agencies need be shared. Federal records that DFEC obtains should not be shared as the federal agency that created it is responsible for its submission to the NICS independently.

The following list describes the ten (10) categories of prohibited individuals and the relevant record types for each:

1. Felons

a. This includes any person "who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year," (including general court-martial) regardless of whether or not that term of imprisonment was imposed.

b. The term "offense punishable by imprisonment for a term exceeding one year" does not include:

(1) any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulation of business practices; or

(2) any state offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less.

c. What constitutes a conviction is determined in accordance with the law of the jurisdiction in which the proceedings were held. If a conviction has been expunged or set aside, or the person has been pardoned or had his/her civil rights restored, it is not considered a conviction unless it was provided in the expungement, pardon, or restoration that the person may not ship, transport, possess, or receive firearms.

Relevant records defined by Department of Justice: Judgment and commitment orders from the courts only if the conviction is secured without collaborating with a US Attorney's Office or other DOJ component.

Potential DFEC specific relevant records: Judgments in state court actions, usually received in conjunction with 5 USC 8148(a) and (b).

2. Fugitives from justice

a. This includes any person who has fled from any state to avoid prosecution for a felony or a misdemeanor, leaves the state to avoid giving testimony in any criminal proceeding, or who knows that misdemeanor or felony charges are pending against him/her and who leaves the state of prosecution.

Relevant records defined by Department of Justice: Misdemeanor and felony warrants and charging documents only if obtained without collaborating with a U. S. Attorney's Office or other DOJ component.

3. Persons unlawfully using or addicted to any controlled substance

a. This includes any person who uses a controlled substance and has lost the power of self-control with reference to the use of the controlled substance or who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.

b. Unlawful use need only to have occurred recently enough to indicate that the individual is actively engaged in such conduct, not necessarily at the precise time the person seeks to acquire a firearm.

c. An inference of current use may be drawn from evidence of recent use or possession of a controlled substance, or a pattern of use or possession that reasonably covers the present time (i.e. conviction for use or possession within the past year or multiple arrests for possession within the past five years if the most recent arrest occurred within the past year).

d. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use (i.e. discharged based on drug rehabilitation failure).

e. The term "controlled substance" includes but is not limited to marijuana, depressants, stimulants, and narcotic drugs, but excludes distilled spirits, wine, malt beverages, and tobacco.

Relevant records defined by Department of Justice: Drug-related convictions, drug-related arrests, and disciplinary or other administrative actions in the Armed Forces based on confirmed drug use only if obtained without collaborating with a U. S. Attorney's Office or other DOJ component. Therapeutic or medical records that are created in the course of treatment in hospitals, medical facilities, or analogous contexts that demonstrate drug use or addiction should not be submitted.

Potential DFEC specific relevant records: Judgments in state court actions, usually received in conjunction with 5 USC 8148(a) and (b).

4. Persons adjudicated "mentally defective" or committed to a mental institution

a. This includes any person who has been determined by a court, board, commission, or other lawful authority as being a danger to himself/herself or others, or lacking the mental capacity to contract or manage his/her own affairs.

b. A mental institution is a facility that provides diagnoses by licensed professionals of mental retardation or mental illness.

c. "Mental defective" does not include a person:

(1) who has been granted relief from the disability through a qualifying federal or state relief from disability program as authorized by the NIAA; or

(2) whose adjudication or commitment was imposed by a federal department or agency and,

a) the adjudication or commitment has been set aside or expunged;

b) the individual has been fully released or discharged from all treatment, supervision or monitoring;

c) the individual has been found by a court, board, commission, or other lawful authority to no longer suffer from the mental health condition that was the basis for the adjudication or commitment, or

d) whose adjudication or commitment is based on a medical finding of disability, without an opportunity for a hearing by a court, board, commission, or other lawful authority and the person has not been adjudicated as a "mental defective" pursuant to 18 U.S.C. § 922(g)(4).

d. Formal commitment of a person to a mental institution by a court, board, commission or other lawful authority includes commitment to a mental institution involuntarily, commitment for mental defectiveness or mental illness or commitment for other reasons, such as for drug use. It does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

Relevant records defined by Department of Justice: Judgment and commitment orders, sentencing orders, and court or agency records of adjudications of an individual's inability to manage his or her own affairs if such adjudication is based on marked subnormal intelligence or mental illness, incompetency, or disease (including certain agency designations of representative or alternate payees for program beneficiaries).

Potential DFEC specific relevant records: Court ordered guardianship documents and DFEC determinations regarding guardianship pertaining to appointment of a representative payee. See Federal Employees' Compensation Act (FECA) Procedure Manual 2-901-17e.

Note If DFEC undertakes development to pursue appointment of a representative payee based on mental incapacity, DFEC must notify the individual (both orally and in writing) at the commencement of the process of the following:

Adjudication of the person as a mental defective or commitment to a mental institution, when final, will prohibit the individual from purchasing, possessing, receiving, shipping or transporting a firearm or ammunition under 18 U.S.C. § 922(d)(4) or &Sect; 922(g)(4);
Information about the penalties imposed for unlawful possession, receipt, shipment or transportation of a firearm under 18 U.S.C. § 924(a)(2); and
Information about the availability of relief from the disabilities imposed by federal laws with respect to the acquisition, receipt, transfer, shipment, transportation or possession of firearms.

If the Claims Examiner encounters this situation, the Branch of Regulations and Procedures and the Office of the Solicitor should be consulted prior to any such development or notification.

5. Illegal/unlawful aliens, and aliens admitted on a non-immigrant visa

a. This includes any person who is illegally or unlawfully in the United States or has been admitted to the United States under a nonimmigrant visa.

b. This includes those persons who:

(1) unlawfully entered the United States without inspection and authorization by an immigrant officer and who have not been paroled into the United States under § 212(d)(5) of the INA;

(2) are a nonimmigrant and whose authorized period of stay has expired or who has violated the terms of the nonimmigrant category in which he/she was admitted;

(3) were paroled under INA § 212(d)(5) whose authorized period of parole has expired or whose parole status has been terminated, or;

(4) are under an order of deportation, exclusion or removal, or voluntary departure, whether or not he/she has left the United States.

c. Permanent resident aliens and aliens lawfully present in this country without a visa are not prohibited.

Relevant records defined by Department of Justice: Deportation orders, visa applications (including denials), and immigration papers.

Potential DFEC specific relevant records: None anticipated.

6. Persons dishonorably discharged from the military

a. This includes any person whose separation from the U.S. Armed Forces was characterized as a dishonorable discharge or a dismissal adjudged by a general court-martial.

b. Any person who was separated for any other discharge (for example, a bad conduct discharge) or whose dishonorable discharge or dismissal has been upgraded under the authority of a discharge review board or a board for the correction of military records is not prohibited.

Relevant records defined by Department of Justice: Discharge records, court-martial records, and disciplinary orders only if no other federal agency would be submitting.

Potential DFEC specific relevant records: None anticipated.

7. Citizen renunciates

a. This includes any person who having been a U.S. citizen has renounced U.S. citizenship either before a diplomatic or consular officer of the United States in a foreign state pursuant to 8 U.S.C. § 1481(a)(5) or before an officer designated by the Attorney General when the United States is in a state of war pursuant to 8 U.S.C. § 1481(a)(6).

b. Any person whose renunciation of citizenship has been reversed as a result of administrative or judicial appeal is not prohibited.

Relevant records defined by Department of Justice: Form DS-4083, Certificates of Loss of Nationality.

Potential DFEC specific relevant records: None anticipated.

8. Persons subject to a domestic violence restraining order

a. This includes any person subject to a domestic violence restraining order as long as the court order was:

(1) issued after a hearing of which such person received actual notice and had an opportunity to participate;

(2) restrains such person from harassing, stalking, or threatening his/her intimate partner or his/her child with that intimate partner or person, or engaging in other conduct that would place the intimate partner in reasonable fear of bodily injury to the partner or child; and

(3) includes a finding that such person represents a credible threat to the physical safety of the intimate partner or child or, by its terms, prohibits the use, attempted use or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.

b. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified that an "intimate partner" is defined as:

(1) the spouse of the person

(2) a former spouse of the person

(3) an individual who is a parent of a child of the person

(4) an individual who cohabits or has cohabited with the person

Relevant records defined by Department of Justice: Protective orders.

Potential DFEC specific relevant records: Protective orders potentially received in conjunction with child support orders.

9. Persons convicted of a misdemeanor crime of domestic violence

a. This includes any person who meets all of the following criteria:

(1) has been convicted of a federal, state, local or tribal offense that is a misdemeanor, or in states that do not classify offenses as misdemeanors, is an offense punishable by imprisonment for a term of one year or less or only by a fine;

(2) the offense has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon; and

(3) the offense was committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child, by a person who is cohabitating with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.

b. If a conviction of a misdemeanor crime of domestic violence has been expunged or set aside, or the person has been pardoned or had his/her civil rights restored, it is not considered a conviction unless it was provided in the expungement, pardon, or restoration that the person may not ship, transport, possess, or receive firearms (and the person is not otherwise lawfully prohibited in the jurisdiction in which the proceedings were held).

10. Persons under indictment

a. This includes any person "who is under indictment for a crime punishable by imprisonment for a term exceeding one year."

b. The ATF has clarified that this includes:

(1) a person under indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted, or;

(2) a military service member charged with any offense punishable by imprisonment for a term exceeding one year which has been referred to a general court-martial.

Relevant records defined by Department of Justice: Indictments and informations only if obtained without collaborating with a U. S. Attorney's Office or other DOJ component.

Potential DFEC specific relevant records: Indictments in state court actions usually received in conjunction with 5 USC 8148(a).

B. DFEC Responsibilities

When a relevant record is obtained/created by DFEC, it should be recorded and tracked by the Claims Staff in the Integrated Federal Employees' Compensation System (iFECS). DFEC National Office will then report any such records to NICS on a quarterly basis using this data.

1. A new note type to capture the relevant record for quarterly reporting to the NICS has been added to iFECS effective August 12, 2013. The note type NICS - is available in the Case Management application and can be accessed via Case Maintenance/Case Notes.

2. Relevant records as described in Part A of this bulletin, primarily those identified as "Potential DFEC specific relevant records" for each of the 10 categories may be identified in daily Incoming Correspondence, upon yearly Periodic Entitlement Review of cases on the periodic roll, or in Investigative Memoranda submitted by employing agencies or the Department of Labor's Office of Inspector General.

3. Upon initial identification of a relevant record, the Claims Examiner should:

a. Author a brief Memo to the File describing the relevant record and why it identifies the individual as a prohibitor. The author date and received date of the relevant document should be noted in the Memo to the File.

b. Forward the Memo to the File to a Supervisory Claims Examiner (or equivalent) for signature.

c. If the Supervisory Claims Examiner agrees that the case file contains a relevant record for NICS reporting, he/she should sign the Memo to the File and enter the iFECS NICS Note.

d. No further action or reporting is required since a report will be generated based on the entry of this Note type.

4. Upon later determination that the relevant record does not apply or no longer applies, and thus is no longer prohibiting, the Claims Examiner should:

a. Author a brief Memo to the File describing the reason the relevant record does not apply or no longer applies. The author date and received date of the relevant document that altered the original determination should be noted in the Memo to the File.

b. Forward the Memo to the File to a Supervisory Claims Examiner (or equivalent) for signature.

c. If the Supervisory Claims Examiner agrees that the relevant record previously reported does not apply or no longer applies, he/she should sign the Memo to the File and update, correct, modify, or remove the iFECS NICS Note from the Case Management application.

d. Unlike the entry of an iFECS NICS Note, the update, correction, modification, or removal of the Note should be reported to the Branch of Regulations and Procedures and Office of the Solicitor so that NICS can be appropriately notified.

Disposition: This bulletin is to be retained until the FECA PM has been updated.

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

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FECA BULLETIN NO. 12-05

Issue Date: April 20, 2012

Subject: Handling Requests for Communication Assistance, Accommodations, and Modifications Under Federal Disability Nondiscrimination Law by Claimants and Others in the Federal Employees' Compensation Act (FECA) Adjudicatory Process

Background: The Office of Workers' Compensation Programs' (OWCP) Division of Federal Employees' Compensation (DFEC) has long been committed to facilitating effective communication with claimants and employing agencies regarding decisions and other actions in each individual case. Consistent with its responsibilities under applicable Federal disability nondiscrimination laws, with its mission, and with the additional emphasis on the employment of individuals with disabilities as reflected in Executive Order 13548 (issued July 26, 2010), OWCP is issuing this Bulletin to inform DFEC officials and personnel of their responsibilities under federal disability nondiscrimination law (including but not limited to Rehabilitation Act Section 504 obligations, which applies to Federally-conducted programs or activities). The Bulletin explains the type of notice OWCP will require DFEC to provide to claimants about its responsibilities under federal disability nondiscrimination law. The Bulletin also describes the procedures that must be used for handling requests from claimants needing communication assistance, or reasonable accommodations/modifications (see explanation in Section III below), in the claims process. Finally, it sets forth requirements regarding conducting hearings, medical appointments, and other in-person interactions in accessible facilities.

The district office should handle virtually all requests for communication assistance or reasonable accommodations/modifications for claimants with disabilities immediately in the manner in which the claimant requests. Because OWCP bears a high burden for justifying any failure to provide requested assistance, a district office should immediately contact the National Office if it has questions or concerns regarding how to comply with the applicable requirements.

For purposes of disability nondiscrimination law and the obligations discussed in this Bulletin, a "disability" is defined as a physical or mental impairment that substantially limits one or more of a claimant's, or other individual's, major life activities. The obligations and procedures discussed in this Bulletin apply to requests related to all medical conditions that can be considered impairments, including conditions that are not employment-related or conditions that may have developed subsequent to the filing of the claim. (This disability definition is distinct from FECA workers' compensation disability and encompasses all impairments that an individual has, not just those that are employment-related.)

In addition to its duty to provide communication aids and services and reasonable accommodations for persons with disabilities, OWCP must reasonably modify its policies, practices, and procedures when necessary to avoid discrimination on the basis of disability. It is also obligated to conduct its programs and activities so that each part of a program or activity is accessible to individuals with disabilities.

Communicating effectively with, providing other types of appropriate assistance and accommodations/modifications for, and ensuring that all aspects of the claims process are accessible to, claimants with varying types of disabilities (including visual impairments) are not only consistent with the non-adversary nature of the FECA adjudicatory process, but are also required by Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) (Section 504), which applies to Federally-conducted programs or activities. In addition, in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which amended the Rehabilitation Act as well as other Federal disability nondiscrimination laws, Congress emphasized that the definition of disability "shall be construed in favor of broad coverage of individuals . . . to the maximum extent permitted by [the terms of the applicable law]," and generally shall not require extensive analysis. Therefore, when responding to a request for assistance, OWCP should focus its attention primarily on how to assist the claimant (or other individual with a disability) most effectively, rather than on whether the individual is, in effect, "disabled enough" to deserve the assistance.

Both applicable law and Department of Labor policy require OWCP to communicate as effectively with persons who have disabilities as the agency communicates with other persons. OWCP bears the general responsibility for providing communication aids and services for claimants with disabilities and for ensuring that the aids and services provided to each individual claimant with a disability are effective for that particular claimant. The obligation to provide equally effective communications applies to the written letters and decisions that OWCP generally provides in paper format telephonic communications, and all other modes of communication.

Finally, the legal duty to provide accommodations/modifications, and to conduct hearings and other in-person interactions in accessible facilities, applies to all phases of the claims process.

Applicability: All National and District Office personnel, field nurses, vocational rehabilitation counselors, medical billing processors and employing agencies.

References: 29 U.S.C. § 794; 29 U.S.C. § 705; 42 U.S.C. § 12102. Note that the ADAAA amended the statutory definition of "disability" for purposes of disability nondiscrimination law (referred to in the Background section above) to broaden that definition and provide rules for construing it. See 29 U.S.C. § 705(20)(B), incorporating by reference the definition of "disability" set forth in 42 U.S.C. § 12102.

For further information about the definition of "disability," as amended by the ADAAA, and guidance on interpreting that definition, see the website of the U.S. Equal Employment Opportunity Commission (EEOC), available at:
http://www.eeoc.gov/laws/statutes/adaaa_info.cfm.

The EEOC published a Final Rule in March 2011 that explains in detail how to interpret the definition of "disability" and its component elements; it has also published a fact sheet and Questions and Answers sheets regarding the provisions of the Final Rule. These documents are available at the EEOC web page cited above. Please note that although the EEOC regulations are not directly applicable to FECA, DOL's interpretation of the disability nondiscrimination laws it enforces must be consistent with EEOC's interpretation of Title I of the Americans with Disabilities Act (ADA); therefore, EEOC's regulations and guidance documents are useful tools for learning about DFEC's and OWCP's disability-related legal obligations.

Purpose: To advise OWCP and related personnel of their responsibilities, and of OWCP procedures, for taking certain actions related to disability. These actions include responding to requests by claimants and others for auxiliary aids and services to ensure equally effective communication ("communication aids and services"), or for reasonable accommodations/modifications, on the basis of disability. They also include taking appropriate steps to ensure that all in-person interactions are accessible to persons with disabilities.

Action:

I. General Principles Re: Requests for Communication Aids and Services and Reasonable Accommodations/Modifications

Although this Bulletin primarily addresses requests from claimants needing communication assistance and/or accommodations/modifications under applicable Federal disability nondiscrimination laws, these instructions also apply where an employing agency official (for example, injury compensation specialist), a representative, or anyone else legitimately associated with the claims process requires communication aids and services, or reasonable accommodations/modifications.

1. All OWCP/DFEC personnel must be sensitive to the potential needs of the claimant population and must realize that the law permits claimants to request communication aids and services, and/or reasonable accommodations/modifications, at any stage of the claims process. A claimant who did not need such aids, services, or accommodations/modifications at the initial stages of a claim may later develop a disability requiring one or more of these types of assistance. Under the law as amended by the ADAAA, a person who does not have an actual, current disability, but who has a record of a disability (for example, someone who has recovered from cancer or heart disease), is entitled to reasonable accommodations under appropriate circumstances.

2. Because the same medical condition may affect each person differently, requests for communication aids and services and/or accommodations/modifications must be analyzed on a case-by-case basis, and actions appropriate to each individual person with a disability will vary. For example, not every person who is deaf understands American Sign Language (ASL). Some deaf persons rely on lip reading, frequently combined with computer-assisted real-time (CART) transcription; others understand Signed English (which has a different syntax from ASL); and still others understand other sign languages, such as Spanish Sign Language. Information on how to respond to each type of request (for communication aids and services, and for accommodations/modifications) appears in Section III below.

3. Upon receipt of a request for disability-related communication aids and services or reasonable accommodations/modifications, action must be taken immediately. Once OWCP determines that accommodation is required under the particular circumstances, the background color of the header in the Integrated Federal Employees' Compensation System (iFECS) will be changed to purple, so that anyone reviewing the case will immediately understand that special handling is required.

All OWCP/DFEC personnel should know the procedures for responding to requests for communication aids and services and/or accommodations/modifications. Each District Office should have at least one designated point of contact who is responsible for helping with responses to such requests, and who is knowledgeable about the relevant procedures, law and policy. Any personnel within that District Office should reach out to the designated point of contact should a question arise. As needed, DFEC personnel may also consult with the Branch of Regulations and Procedures and the Branch of Technical Assistance, which may seek out resources available in other Department of Labor agencies or other appropriate federal agencies. For example, DOL's Office of Disability Employment Policy (ODEP) has a Technical Assistance Center called the Job Accommodation Network (JAN) which may be able to assist with interactive services to help determine what accommodations are appropriate for a specific person. Contact with JAN should be handled through the National Office.

II. Notice to Claimants

1. Federal disability nondiscrimination law defines a "disability" as a physical impairment (such as cancer, diabetes, or epilepsy) or a mental impairment (such as autism, bipolar disorder or post-traumatic stress disorder) that substantially limits one or more of the person's major life activities. DFEC will provide notice to claimants that: if they have such a disability, they may request that DFEC provide them with communication aids and services and/or accommodations/modifications; a claimant who has a record of such a disability is also entitled to receive reasonable accommodations under appropriate circumstances; and DFEC will respond to all requests for the above types of assistance as required by Federal law. A sample notice that provides the above information is attached to this Bulletin.

2. This bulletin, the above-cited sample notice, and the procedures for requesting communication aids and services, accommodations/modifications, and/or in-person interactions in accessible facilities will be posted on DFEC's internet site:
http://www.dol.gov/owcp/dfec/index.htm

3. Communications from DFEC to the claimant will include either this notice or a similar notice that provides the same information, and will also include information about how and where to request communications aids and services and/or accommodations/modifications.

III. Responding to Requests for Assistance

This section explains how to respond to two different types of requests. Subsection A addresses requests for auxiliary (communication) aids and services, while Subsection B addresses other types of requests for individualized assistance. Requests in the latter category should be considered requests for reasonable accommodations and/or modifications, as explained in subsection B.

A. Requests for Auxiliary (Communication) Aids and Services

DFEC will provide appropriate communication assistance for claimants with disabilities at all stages of the claims process. The circumstances under which communication assistance must be provided extends to claimants' interactions with physicians, field nurses, vocational rehabilitation counselors, or other health providers, and DFEC staff. Appropriate assistance is to be provided regardless of the method of contact -- whether by telephone, postal mail, in person, or some other method.

The type of communication aids or services necessary to ensure effective communication will vary with the type of communication used by the individual with a disability; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. When deciding what communication aids or services to provide in response to a request from a claimant or other person with a disability, DFEC must honor the choice of the person with a disability, unless DFEC can demonstrate that either: (a) another means of communication exists that will be effective for the particular person with a disability, or (b) use of the means chosen by the person with a disability would result in a fundamental alteration in the nature of the DFEC or OWCP program. In addition, in order to be effective, communication aids and services must be provided by methods that are usable and/or understandable by the individual with a disability; in a timely manner; and in such a way as to protect the privacy and independence of the individual with a disability.

1. The requirement to consider each request for communication assistance individually does not prohibit DFEC from preparing for such requests in advance so that it may respond quickly. Examples:

a. Persons with visual impairments. Blind or visually impaired persons frequently ask for the following types of alternate formats for documents in standard print by first class mail:

1. Standard print and follow-up telephone call
2. Braille and standard print by first class mail
3. Microsoft or text file on a CD by first class mail
4. Audio CD and standard print by first class mail
5. Large print (18 point) and/or high contrast type (such as bold) by first class mail

Each DFEC office should be prepared to provide documents in each of the above formats when requested. DFEC will identify one or more sources for producing documents in Braille and, if appropriate, on audio CD, and will inform each district office of the turnaround time and procedures for submitting such requests. If the district office plans to supply its own large-print or high-contrast documents, it should ensure that enough staff members know the appropriate computer and printer settings to permit such documents to be produced at any time, without delay. If the district office plans to create its own audio or text CDs, it should keep the appropriate types of blank CDs in stock.

If a person with a visual impairment requests that a document be provided in Braille, audio CD, or data CD/Microsoft Word on CD, the document should be provided both in the usual format (paper or imaged file) and the requested alternate format.

b. Persons with Hearing Impairments

In-person contacts: If sign language interpreting services are necessary, they may be provided in person or through remote Video Interpreting Services.

Interpreters must be qualified. Under Federal disability nondiscrimination law, an interpreter is qualified if s/he is able to interpret effectively accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. The law prohibits DFEC from requiring an individual with a disability to bring another person to interpret for him/her, whether that individual is a claimant, an employing agency official, a representative, or someone else who is legitimately associated with the claims process.

In circumstances in which it is permissible for a claimant or other individual with a disability to be accompanied by another adult during in-person contacts, DFEC must not rely on that adult to interpret, or to otherwise facilitate communication, except: in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication; the accompanying adult agrees to provide such assistance; and reliance on that adult for such assistance is appropriate under the circumstances.

Telephone contacts in general: DFEC will provide dedicated contact numbers for telephone contact with individuals whose disabilities limit their capacity to use voice telephones. These dedicated numbers will be available on the DFEC internet site, listed in correspondence, and publicized in other ways. Additional information about the Federal Relay Service and the types of telecommunications services it offers is available at:
http://www.gsa.gov/portal/content/104626.

Hearings. The Branch of Hearings & Review (BHR) is responsible for providing appropriate communication aids and services for hearings, and for notifying claimants and other appropriate parties that such aids and services are available. For example, for in-person oral hearings before a BHR representative, BHR must provide sign language interpreters, CART transcription services, or other types of communication assistance upon request. For telephonic hearings, BHR must provide TTY or other types of relay services. As with other DFEC branches, when deciding what type of communication aids or services to provide, BHR must give primary consideration to the request of the individual with a disability.

B. Requests for Accommodations / Modifications

Claimants and other persons associated with the claims process who have disabilities may request a wide range of adjustments or changes to the process because of their disabilities. Such requests constitute requests for reasonable accommodation or modification; they automatically trigger DFEC's or OWCP's duty to act.

a. To request an accommodation or modification, all that the individual with a disability (or someone acting on his/her behalf) must do is notify the claims examiner, hearing representative, or someone else associated with DFEC or OWCP, that s/he needs an adjustment or change in the claims processing procedures for a reason related to a disability.

Note: A request for disability-related parking assistance, such as for an accessible parking space within the building where a hearing or other in-person meeting is scheduled, is a request for a reasonable accommodation and should be treated as such.

b. The individual may use "plain English": s/he need not mention disability law or use technical language such as "reasonable accommodation" or "reasonable modification of policies, practices, or procedures."

c. The request does not need to be in writing: it may be made during a conversation, or through any other mode of communication. DFEC staff should be alert to such requests, and should recognize their legal and practical significance. The law permits DFEC personnel to write a memorandum or letter confirming the individual's request, or to ask the individual to submit the request in writing. However, the initial request triggers DFEC's and OWCP's duty to take action, and cannot be ignored pending receipt, completion, or processing of written confirmation.

2. When DFEC receives a request for an accommodation/modification as described above, it may simply provide the requested assistance. Otherwise, DFEC personnel should engage in an informal dialogue with the individual with a disability (and/or his/her representative) to clarify what the individual needs and identify the appropriate reasonable accommodation/ modification. The exact nature of the dialogue will vary depending upon the circumstances.

a. In many instances, both the disability and the type of accommodation/modification required will be obvious; thus, there may be little or no need to engage in any discussion.

b. In other cases, DFEC may need to ask questions concerning the nature of the disability and the individual's functional limitations in order to identify an effective accommodation or modification.

c. The individual with a disability does not have to be able to specify the precise accommodation or modification needed. However, s/he (or his/her representative) does need to describe the barriers s/he is encountering in the claims process or the way it is implemented.

d. Even if the individual with a disability cannot identify a specific accommodation or modification, s/he may be able to offer suggestions about the type, or general characteristics, of reasonable accommodations/modifications that will help overcome the barrier.

e. Once the interactive dialogue has enabled the district office to ascertain the specific limitations imposed by the disability and barriers imposed by the claims process, where neither the individual nor DFEC is familiar with possible accommodations or modifications, the district office may contact the National Office for assistance from an accommodations expert.

3. Under the law, DFEC is permitted to ask for documentation to support a request for accommodation/modification only in the following circumstances: either the disability itself or the need for an accommodation/modification is not obvious, and the information already in DFEC's possession is insufficient to confirm that the individual has a substantially limiting impairment or needs an accommodation or modification (in the case of a claimant, the information already in the individual's file).

4. In some circumstances, it will be appropriate for DFEC to make adjustments or provide assistance without waiting for a specific request. For example, if DFEC knows that a claimant has mobility impairments (for example, uses a wheelchair, walks only short distances with the use of a cane or walker, or has respiratory or cardiac-related restrictions on walking), it is entirely appropriate -- as well as good customer service -- for the DFEC staffer to take the initiative to schedule in-person meetings with the claimant in locations that minimize the distance the claimant must walk or propel his/her chair.

IV. Physical Accessibility

DFEC and OWCP are obligated to conduct their programs and activities so that when each part of a program or activity is viewed as a whole, that part is fully accessible to individuals with disabilities, including those with mobility impairments. Because not every facility associated with the claims process is required to satisfy the full panoply of accessibility standards adopted by the General Services Administration (GSA) for Federal facilities, OWCP DFEC is implementing the following accessibility-related policy: ALL IN-PERSON INTERACTIONS MUST BE HELD IN ACCESSIBLE LOCATIONS. Such interactions include, but are not limited to: any meetings with the field nurse or vocational rehabilitation counselor; medical examinations; and all in-person hearings before DFEC Branch of Hearings & Review.

Whether a particular location or facility may be considered "accessible" will be determined pursuant to the accessibility standards that are applicable to Federal facilities (as well as to facilities designed, built, altered, or leased with Federal financial assistance). See http://www.access-board.gov/aba/index.htm.

V. District Office Action

Upon receipt of this Bulletin, District Directors will share this information and these procedures with district office staff, discuss, and provide guidance as needed. District Directors will consult with the National Office as necessary. District Directors will update staff as procedures are refined and revised.

Disposition: This Bulletin is to be retained in Part 5, Benefit Payments, Federal (FECA) Procedure Manual, until further notice or the indicated expiration date.

DOUGLAS C. FITZGERALD
Director for Federal Employees' Compensation

Distribution: List No. 2 - Folioviews Groups A, B and D (Claims examiners, All Supervisors, District Medical Advisors, Fiscal Personnel, Systems Managers, Technical Assistants, Rehabilitation Specialists and Staff Nurses)

Attachment to FECA Bulletin 12-05 - Sample Notices

Requests for Disability-Related Assistance (Forms and Notices):
If you have a substantially limiting physical or mental impairment, Federal disability nondiscrimination law gives you the right to receive help from DFEC in the form of communication assistance, accommodation and modification to aid you in the FECA claims process. For example, we will provide you with copies of documents in alternate formats, communication services such as sign language interpretation, or other kinds of adjustments or changes to account for the limitations of your disability. Please contact our office or your claims examiner to ask about this assistance.

To be added to all other communications:
If you have a disability (a substantially limiting physical or mental impairment), please contact our office/claims examiner for information about the kinds of help available, such as communication assistance (alternate formats or sign language interpretation), accommodations and modifications.

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FECA BULLETIN NO. 11-01

Issue Date: February 2, 2011

Subject: Federal Reform Changes for Federal Benefits under the Affordable Care Act

Background: On March 23, 2010, President Obama signed the Affordable Care Act (ACA), Public Law 111-148. Several provisions of the ACA will affect the eligibility for a claimant's dependents under the Federal Employees Health Benefits (FEHB) Program beginning January 1, 2011.

Purpose: To inform the appropriate personnel of the changes to the FEHB that extends coverage to children up to age 26. Prior to the enactment of the ACA, coverage for a claimant's children under the FEHB ceased at age 22. The enactment of the new law now extends that cut-off age to 26. Note that the extended coverage is offered to all children/dependents under the age of 26, regardless of when they may have previously have lost their FEHB coverage. Also, children who lose coverage due to reaching age 26 are eligible for Temporary Continuation of Coverage (TCC) for up to 36 months, even if they previously had TCC.

Applicability: All National Office staff and District Office claims personnel.

Actions: The action required of the District Office to grant coverage to the newly eligible children depends upon the claimant's current FEHB enrollment:

If the claimant currently has a Self-and-Family enrollment and does not change to another health plan during Open Season, his or her current FEHB plan will contact him/her and provide information on the newly eligible child. There is no need to complete an SF-2809, Health Benefits Election Form, and no action is required of the District Office.
If the claimant has a Self-and-Family enrollment but elects a change to another FEHB plan during Open Season, the District Office must ensure that all eligible children are listed on the SF-2809 when processing the change.
If the claimant has a Self-Only enrollment and newly eligible children, they must change their enrollment from Self-Only to Self-and-Family. In order to make the change and extend coverage to the newly eligible children, the claimant must complete the SF-2809 to request the change, and the District Office must process the form like any other FEHB change request. In addition to processing the FEHB forms, the claimant's enrollment code should be updated in iFECS to reflect the new Self-and-Family coverage.

The effective date of coverage for newly eligible children depends upon the event used to change enrollment. All changes will be automatically processed as Open Season changes, with an effective date of January 16, 2011. However, the claimant has the option of extending coverage to the newly dependent child beginning January 1, 2011 as a "change in family status" qualifying life event (QLE). The qualifying life event code to use on the Health Benefits Election Form, SF-2809, is "2B" for OWCP recipients. Should the claimant make a QLE election rather than an Open Season change, the claimant must pay for the premiums for the period of January 1, 2011 to January 15, 2011.

Disposition: Retain until the procedures noted here are incorporated into the FECA Procedure Manual.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Attachments:

Distribution: List No. 1--Folioviews Groups A and D (Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists and Staff Nurses)

Attachment to FECA Bulletin NO. 11-01

Affordable Care Act (ACA) - Changes in FEHB Coverage For Children

Children between the ages of 22 and 26 are covered under their parent's Self-and-Family enrollment up to age 26.

Married children (but NOT their spouse or their own children) are covered up to age 26. This is true even if the child is currently under age 22.

Children who are eligible for or have their own employer-provided health insurance are eligible for coverage up to age 26.

Stepchildren do not need to live with the enrollee in a parent-child relationship to be eligible for coverage up to age 26.

Children who are incapable of self-support because of a mental or physical disability that began before age 26 are eligible to continue coverage. Contact the National Office for further guidance.

Foster children are eligible for coverage up to age 26.

Note: Children do not have to live with their parent, be financially dependent upon their parent, or be students to be covered up to age 26. There is also no requirement that the child have prior or current insurance coverage. FEHB Program plans will send notice to all their enrollees of the coverage eligibility changes as a part of that plan's Open Season communications.

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FECA BULLETIN NO. 11–04

Issue Date: April 20, 2011

Subject: Schedule A Initiative

Background: In support of Executive Order 13548 and President Obama's Protecting Our Workforce and Ensuring Re-employment (POWER) initiative, the Office of Workers' Compensation Programs' (OWCP) Division of Federal Employees' Compensation (DFEC) is prepared to launch a new initiative that utilizes the Schedule A non-competitive hiring authority to help rehire injured federal workers back into the federal government. Schedule A is an appointing authority, or hiring authority for the federal government. It is an Excepted Service appointment for persons with certain specific disabilities, including persons with mental retardation, severe physical disabilities, or psychiatric disabilities. The regulations guiding the Excepted Service -- Appointment of Persons with Disabilities and Career and Career-Conditional Appointment are found in the Code of Federal Regulations (CFR). See 5 CFR § 213.3102(u).

The Executive Order (EO) states that the Department of Labor (DOL) and the Office of Personal Management (OPM) will work together to assist agencies in increasing the return-to-work rate of employees who suffer from work-related injury or illness. [Exec. Order No. 13548, 75 Fed. Reg. 45039 (July 26, 2010)]. The POWER initiative tasks agencies with a new goal of increasing the percentage of successful return-to-work for their injured employees. While the POWER return-to-work goal is set at the department level, the Executive Order does not specify that an injured worker must return to the same sub-agency or duty station. As a result, federal agencies have reason to search for employment opportunities at the department level. As OWCP has reason to seek return-to-work outcomes across the federal (and private) sectors, OWCP undertakes this Schedule A initiative in an effort to increase federal return-to-work outcomes.

In order to be eligible for Schedule A consideration, the applicable regulation states that the employee should have mental retardation, severe physical disability, or psychiatric disability. 5 C.F.R. § 213.3102(u)(1). The regulation does not include or exclude any particular type of disability under these three classes. Documentation of disability can be accepted from a licensed medical professional, a licensed vocational rehabilitation specialist, or "any Federal agency, State agency, or an agency of the District of Columbia or a U.S territory that issues or provides disability benefits." 5 C.F.R. § 213.3102(u)(2)(ii). Those same agencies may make certifications regarding an employee's job readiness. 5 C.F.R. § 213.3102(u)(3). As the Secretary of Labor has delegated the responsibility of administering the FECA to OWCP, OWCP is a federal agency that provides benefits due to injury or continuing total or partial disability, as well as schedule awards for the impairment and loss of use of schedule members, and OWCP has the authority to provide certification of Schedule A eligibility and certification of job readiness for appropriate injured claimants receiving FECA benefits.

As OWCP is a federal agency that issues or provides disability benefits, it will begin exercising this authority to work with agencies in utilizing all appropriate means of assisting them in returning injured workers to federal employment, including Schedule A certification.

Purpose: To provide guidance to claims staff, Rehabilitation Specialists, Rehabilitation Counselors, and Employing Agencies on the process for Schedule A certification and the steps DFEC will take to facilitate Schedule A placement.

Applicability: All National Office staff and District Office claims personnel, Staff Nurses, Rehabilitation Specialists, and Rehabilitation Counselors.

Actions:

1. Timeline for Implementation. Only two regions, the Northeast (New York and Boston) and the Southwest (Denver and Dallas) will participate in the first phase of the Schedule A Initiative, which will last approximately 120 days. After that period has elapsed, the process will be evaluated with a view toward expansion to other district offices.

2. Rehabilitation Tracking System (RTS) and Disability Management (DM) Tracking Codes. New codes will be used to document actions in cases reviewed for Schedule A placement.

Rehabilitation Tracking System (RTS) and Disability Management (DM) Tracking Codes
DM	RTS	Initial Status (post referral)
SCC	AC	Schedule A Certified
SCR	AR	Schedule A Rejected

Rehabilitation Tracking System (RTS) and Disability Management (DM) Tracking Codes
DM	RTS	Disposition Status (post certification)
SCD	AD	Schedule A Services Declined
SCW	AW	Schedule A RTW
SCO	AO	Schedule A RTW Other
SCN	AN	Schedule A Closed (No RTW)

3. Guidelines for Identification of Suitable Candidates for Schedule A. There are two components to consider when determining whether a claimant may be eligible for Schedule A certification.

Medical - In order to be eligible for the Schedule A initiative, the claimant must have certain medical conditions. When evaluating whether a claimant fits the medical criteria for Schedule A, the whole person is to be considered, not just the accepted work-related condition(s). For example, if the claimant has an accepted claim for carpal tunnel syndrome but is a paraplegic due to a non-employment related car accident, he or she would be an appropriate candidate for Schedule A placement.

The first class of conditions comprises the targeted disabilities which the federal government, as a matter of policy, has identified for special emphasis. A claimant who suffers from a targeted disability is an ideal candidate for this program. The targeted disabilities are: deafness, blindness, missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental retardation, mental illness, and distortion of limb and/or spine.

In addition, OPM published guidance for agencies on the Executive Order on November 8, 2010, which provides additional, non-targeted disabilities. The guidance, titled Model Strategies for Recruitment and Hiring of People with Disabilities as Required Under Executive Order 13548, can be found at the following website.

http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=3228

Attachment 1 (Targeted Disabilities and Non-Targeted Disabilities Chart from November 8, 2010 OPM Memorandum titled, Model Strategies for Recruitment and Hiring of People with Disabilities as Required Under Executive Order 13548) outlines the specific targeted and non-targeted disabilities. This chart should be consulted to determine if the individual has a qualifying condition that could be considered for Schedule A.

Twenty-one (21) conditions are listed as non-targeted disabilities, including the following: non-paralytic orthopedic impairments, cardiovascular/heart disease, diabetes, pulmonary/respiratory conditions, gastrointestinal disorders, cancer, and disfigurement. If the claimant's disability is due to a non-paralytic orthopedic impairment (without other qualifying employment or non-employment related conditions), the claimant must be at the sedentary or sub-sedentary level in order to be eligible for Schedule A certification by DFEC.

Vocational – As Schedule A placement is offered in addition to routine placement services, the claimant should be determined to be eligible for vocational rehabilitation services.

The Rehabilitation Specialist, in addition to considering the claimant for Schedule A placement, should also still identify at least two targeted jobs that are vocationally and medically suitable (via form OWCP-66) during the plan development phase. The services that are needed prior to placement should be provided (transferable skills analysis, testing, training, resume assistance, etc.), and the claimant should usually be work-ready when referred for Schedule A placement.

4. The Role of the Rehabilitation Specialist. Certain District Office Rehabilitation Specialists (DO RS) will be designated as Schedule A Rehabilitation Specialists (SA RS). An SA RS may provide Schedule A certification for claimants within his or her own district, as well as other districts.

The DO RS will refer individuals who meet eligibility requirements, as discussed above, to the SA RS for review. The SA RS will provide the necessary Schedule A certification, if appropriate, and work with the DO RS to facilitate a Schedule A placement. The DO RS, however, remains the primary manager of the rehabilitation case, as Schedule A certification and placement remains only one component of a rehabilitation plan.

5. Referral of Cases. The identification of Schedule A candidates should be made as early in the rehabilitation process as possible, ideally during the plan development phase.

During the plan development phase, the DO RS should review cases with the assigned Rehabilitation Counselor (RC) to determine whether an individual may be a possible candidate for Schedule A placement. This determination consists of the medical and vocational elements outlined in #3 of this bulletin, but the DO RS should also consider the claimant's motivation, especially the desire to return to federal employment. Since Schedule A placement infers a self-certification of disability, the claimant should be motivated to return to work with the federal government. The DO RS may discuss this possibility with the claimant if there is any question regarding this element.

Once the DO RS has identified a claimant who may be a suitable candidate for Schedule A placement, he or she will complete a referral form and place it into the case. The SA RS will then be notified of the referral.

The referral should include the following information: claim number, claimant name, date of injury, accepted condition(s), concurrent condition(s), whether the case is being referred based on a targeted or non-targeted qualifying disability, the targeted or non-targeted qualifying disability, and available vocational background (degree(s), date of transferable skills analysis, work history or resume, job held when injured with position description, etc.). The referral should also indicate whether the DO RS or RC has discussed the Schedule A option with the claimant and, if not, how the determination was made that the claimant may be motivated to return to federal employment via this option.

6. Review and Disposition of Referrals. The SA RS will review the referral in conjunction with the case file to determine whether the claimant can be certified for Schedule A placement. This review should take place within five business days of the DO RS referral.

If the claimant is not a good candidate for Schedule A, the SA RS will document the file with the reasons why the claimant cannot be provided Schedule A placement services and notify the DO RS. The DO RS will code the case in RTS as AR (Schedule A Rejected). The DO RS will also notify the assigned RC and the Claims Examiner (CE). The CE will enter the SCR (Schedule A Rejected) code in DM. In the event the claimant wishes further consideration for Schedule A placement, the claimant should be provided a letter that outlines the reasons for denial of the placement services. The letter should include the option to have that determination reviewed, based on any new evidence/argument submitted, by someone not involved in the prior determination.

If the claimant is a good candidate for Schedule A, the SA RS will issue a letter to the claimant outlining the Schedule A hiring authority. This letter will also serve as notification that the claimant has been approved for such authority, and a proposed time and date for a conference call to discuss the process within the next five days will be suggested. Attachment 2, Schedule A Certification Letter to Claimant, is a sample of this correspondence.

7. Conference Call. The SA RS will schedule a conference call with the DO RS, the RC, and the claimant. During this call, the Schedule A hiring authority will be explained in more detail, and the SA RS will let the various stakeholders know what to expect in the next months. During the conference call, however, it is important that the claimant understand that Schedule A placement is not guaranteed, and that this is only one tool being used to facilitate the return-to-work effort.

The call should be held as soon as possible after the certification letter is sent, preferably within 5 days. A brief memorandum of conference should be placed in the claim file once the conference is completed.

8. Schedule A Placement Services Declined. If, after the conference call (or any time thereafter), the claimant indicates that he or she does not want to proceed with Schedule A placement services, the SA RS should document the file accordingly and notify the DO RS (if he or she is not already privy to the information through the conference call). The DO RS will code RTS as AD (Schedule A Services Declined) and notify the assigned RC and the CE. The CE will enter the SCD (Schedule A Services Declined) code in DM.

Note - Participation in the Schedule A placement process is entirely voluntary; therefore, sanctions for non-cooperation with the rehabilitation process (or refusal of suitable employment) will not be imposed if the claimant decides not to participate in Schedule A placement for any reason.

9. Schedule A Placement Services Accepted. If the claimant wishes to continue with Schedule A placement services, in addition to the usual rehabilitation placement services for a job in the private sector, both the SA RS and the DO RS have specific responsibilities.

SA RS Actions - Depending on the phase of rehabilitation, the SA RS will prepare a disability certification or a combined disability and job-readiness certification.

If the claimant is job ready at the time of the certification, the SA RS will issue one letter that certifies both the disability and job readiness (see Attachment 3, Schedule A Disability and Job-Readiness Certification). If the claimant is certified for Schedule A during the plan development phase because he or she has an eligible disability but is not yet work ready, the disability certification may be issued first (see Attachment 4, Schedule A Disability Certification). Then, once the placement phase begins, the DO RS should notify the SA RS so that an updated certification for both disability and job readiness can be issued. This may occur if, for instance, the claimant needed short-term training but there was a possibility that the employing agency might have work for the individual in another area.

The appropriate certification letters should be issued within 5 working days of the conference call wherein the claimant agreed with Schedule A placement services, or within 5 working days of the start of the placement phase, whichever is applicable.

DO RS Actions – When the first certification letter is issued, the DO RS will be notified, who in turn will notify the RC and the CE. The DO RS will code the case in RTS as AC (Schedule A Certified) and the CE will enter the SCC (Schedule A Certified) code in DM.

Most Federal agencies have a Selective Placement Program Coordinator (SPS), a Special Emphasis Manager (SEM) for Employment of Adults with Disabilities, or equivalent, who helps to recruit, hire, and accommodate people with disabilities at that agency. Once the DO RS receives the certification documents, he or she should contact the department or agency where the claimant worked at the time of injury to indicate that this claimant is ready to work and is Schedule A certified. A list of these personnel at each federal agency is provided on the OPM website at:

http://apps.opm.gov/sppc_directory/

Once contact has been made, the DO RS should forward the claimant's resume to the SPC and ask that he or she identify any current openings at the department or agency for which the claimant would be qualified.

In addition, the DO RS (and RC) should perform searches of USA Jobs and other similar federal job sites to identify positions in other departments and agencies (beyond where the claimant worked at the time of injury) for which the claimant is qualified. If the DO RS or RC finds a specific posting for which the claimant may be qualified, the position should then be discussed with the claimant. If the claimant is interested, then the DO RS should contact the appropriate SPC and arrange to submit the claimant's resume for consideration. If an agency expresses interest in hiring the claimant under Schedule A and the claimant is interested in the position, the DO RS can provide the certification documentation that was prepared by the Schedule A RS.

If the DO RS has difficulty in reaching the SPC or in identifying positions for the claimant, the SA RS will act as a source of information and advice, and perhaps liaise with other federal agencies.

Note - It is also important to note that Schedule A involves excepted-service appointments. Agencies are authorized to categorize the Schedule A appointments as either permanent or term-limited based on (i) proof of disability and (ii) a certification of job readiness or a demonstration of job readiness through a temporary appointment. Agencies also have the option of making Schedule A temporary appointments where it may be necessary to observe whether a potential appointee is able to perform the requirements of the position. After two years of satisfactory performance, agencies may non-competitively convert Schedule A appointees, who served in non-temporary appointments, to competitive service positions. As these situations may vary, the claimant should be informed of the possibility that Agencies' decisions to convert an excepted-service appointment to competitive service at the end of two years are discretionary. Claimants are encouraged to discuss these issues and any necessary accommodations with the federal employer of the Office of Personnel Management (OPM).

10. Period of Services. The Schedule A placement initiative does not alter the usual parameters of vocational rehabilitation. Ninety (90) days of placement services are provided as part of the rehabilitation process, and the Schedule A certification does not change this timeframe. However, one sixty (60) day extension may be granted if the DO RS and/or the SA RS have reason to believe that it will lead to a placement under Schedule A. The rationale for any such extension should be documented in the file.

11. Return to Work via Schedule A. If the claimant returns to work via the Schedule A hiring authority, the file should be clearly documented with the specifics of the return to work. The DO RS should then code RTS as AW (Schedule A RTW) and alert the SA RS and CE. The CE should enter the SCW (Schedule A RTW) code in DM.

Along with the Schedule A disposition codes, the RS should still enter the usual RTS codes to document the return to work. For example, if the claimant was Schedule A certified and returned to work with the previous employer through the Schedule A hiring authority, the RS should enter the following in RTS to document the Schedule A return to work: code AC (Schedule A Certified) when the certification letter is sent to the claimant; code W (Placement previous employer, with other services); code AW (Schedule A RTW); code E (Employed); and then after 60 days of successful work closure code 4 (Closed Rehabilitated-Previous Employer).

After 60 days of employment, the CE will review the case to determine whether a formal Loss of Wage-Earning Capacity (LWEC) decision is appropriate.

Note – Whether the claimant returned to work with the "previous employer" is determined at the department, not agency, level. For instance, a claimant who was employed as a Park Ranger with the National Park Service and returns to work with the Bureau of Land Management is considered placed with his "previous employer," as both agencies fall under the Department of the Interior. Â Placement in another government position, outside the original Department, would qualify as a Code 2 – Placement with a New Employer.

12. Return to Work – Not Schedule A. If the claimant returns to work without the use of the Schedule A hiring authority, the file should be documented with the specifics of the return to work. The DO RS should notify the SA RS and the usual rehabilitation closure procedures should be followed. However, prior to entering the Employed (E) code in RTS, the DO RS should enter AO (Schedule A RTW Other) to document the disposition of the Schedule A certification. The CE should also be notified and should enter the SCO (Schedule A RTW Other) code in DM.

13. Placement Ends – No Return to Work. If the vocational rehabilitation placement period ends, the normal process for issuing a constructed LWEC decision may be considered in accordance 5 U.S.C 8115. The Schedule A initiative has no impact and should not be referenced in the FECA entitlement decision in these cases. However, if the placement period ends for a case in which the claimant was Schedule A Certified and there was no return to work, the DO RS should notify the SA RS and the CE, and then code RTS with AN (Schedule A Closed, No RTW) prior to entering a closure code. Upon notification, the CE should enter code SCN (Schedule A Closed, No RTW) in DM.

14. File Documentation. A separate Schedule A file should be made for each candidate who is considered for Schedule A placement services pursuant to the Privacy Act System DOL/ESA-43, which covers OWCP Rehabilitation Files. The DO RS should maintain this file, but all documentation should also be made part of the claimant's case file. The Schedule A file should contain the following documentation: Schedule A referral; certification letter to claimant or document with rationale for rejecting the case; claimant resume, date of injury position description and transferable skills analysis, if available; history of contacts on behalf of the claimant with an aim at securing employment via the Schedule A hiring authority; and the job description for the position obtained or other applicable closure documentation.

15. The Schedule A certification process is not a FECA entitlement determination and is not subject to the FECA appeal process.

Disposition: Retain until the procedures noted here are incorporated into the FECA Procedure Manual.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Attachments:

Distribution: List No. 1--Folioviews Groups A and D
(Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists and Staff Nurses)

Attachment 1 to Bulletin 11–04 –

Targeted Disabilities and Non-Targeted Disabilities Chart from November 8, 2010 OPM Memorandum titled, Model Strategies for Recruitment and Hiring of People with Disabilities as Required Under Executive Order 13548

Targeted Disabilities (Severe)
New SF 256 Category	Old SF 256 Category	New Code & Definition	Previous Code & Definition
Hearing	Hearing Impairments	18- Total deafness in both ears (with or without understandable speech)	16- Total deafness in both ears, with understandable speech. 17- Total deafness in both ears, and unable to speak clearly.
Vision	Vision Impairments	21- Blind (inability to read ordinary size print, not correctable by glasses, or no usable vision, beyond light perception)	23- Inability to read ordinary size print, not correctable by glasses (Can read oversized print or use assisting devices such as glass or projector modifier). 25- Blind in both eyes (No usable vision, but may have some light perception)
Missing Extremities	Missing Extremities	30- Missing extremities (missing one arm or leg, both hands or arms, both feet or legs, one hand or arm and both feet or legs, both hands or arms and one foot or leg, or both hands or arms and both feet or legs)	28- One arm 32- One leg 33- Both hands or arms 34- Both feet or legs 35- One hand or arm and one foot or leg 36- One hand or arm and both feet or legs 37- Both hands or arms and one foot or leg 38- Both hands or arms and both feet or legs
Partial Paralysis	Partial Paralysis	69- Partial paralysis (because of a brain, nerve or muscle impairment, including palsy and cerebral palsy, there is some loss of ability to move or use a part of the body, including both hands; any part of both arms or legs; one side of the body, including one arm and one leg; and/or three or more major body parts)	64- Both hands 65- Both legs, any part 66- Both arms, any part 67- One side of body, including one arm and one leg 68- Three or more major parts of the body (arms and legs)
Complete Paralysis	Complete Paralysis	79- because of a brain, nerve or muscle impairment, including palsy and cerebral palsy, there is a complete loss of ability to move or use a part of the body, including both hands; one or both arms or legs; the lower half of the body; one side of the body, including one arm and one leg; and/or three or more major body parts	71- Both hands 72- One arm 73- Both arms 74- One leg 75- Both legs 76- Lower half of body, including legs 77- One side of body, including one arm and one leg 78- Three or more major parts of the body (arms and legs)
Other Impairments	Other Impairments	82- Epilepsy	82- Convulsive disorder (e.g. epilepsy)
		90- Severe intellectual disability	90- Mental retardation (A chronic and lifelong condition involving a limited ability to learn, to be educated, and to be trained for useful productive employment as certified by a State Vocational Rehabilitation agency under section 213.3102(t) of Schedule A)
		91- Psychiatric disability	91- Mental or emotional illness (A history of treatment for mental or emotional problems)
		92- Dwarfism	92- Severe distortion of limbs and/or spine (e.g. dwarfism, kyphosis [severe distortion of back])

Non-targeted Disabilities
New SF 256 Category	Old SF 256 Category	New Code & Definition	Previous Code & Definition
Hearing Conditions	Hearing Impairments	15- Hearing impairment/hard of hearing	15- Hard of hearing (Total deafness in one ear or inability to hear ordinary conversation, correctable with a hearing aid)
Vision Conditions	Vision Impairments	22- Visual impairments (e.g., tunnel or monocular vision or blind in one eye)	22- Ability to read ordinary size print with glasses, but with loss of peripheral (side) vision (Restriction of the visual field to the extent that mobility is affected-"Tunnel vision") 24- Blind in one eye
Physical Conditions	Missing Extremities	26- Missing Extremities (one hand, one foot, or one hand and one foot)	27- One hand 29- One foot
	[New code: no corresponding old category name.]	40- Mobility impairment	[New code: no corresponding old code.]
		41- Spinal abnormalities (e.g., spina bifida, scoliosis)	[New code: no corresponding old code.]
		51- HIV Positive/AIDS	[New code: no corresponding old code.]
		52- Morbid obesity	[New code: no corresponding old code.]
		95 - Gastrointestinal disorders (e.g., Crohn's Disease, irritable bowel syndrome, colitis, celiac disease, dysphexia, etc.)	[New code: no corresponding old code.]
		98 - History of alcoholism	[New code: no corresponding old code.]
	Non-paralytic Orthopedic Impairments (Because of chronic pain, stiffness, or weakness in bones or joints, there is some loss of ability to move or use a part or parts of the body)	44- Non-paralytic orthopedic impairments: chronic pain, stiffness, weakness in bones or joints, some loss of ability to use part or parts of the body	44- One or both hands 45- One or both feet 46- One or both arms 47- One or both legs 48- Hip or pelvis 49- Back 57- Any combination of two or more parts of the body
	Partial Paralysis	61- Partial paralysis of one hand, arm, foot, leg, or any part thereof	61- One hand 62- One arm, any part 63- One leg, any part
	Complete Paralysis	70- Complete paralysis of one hand	70- One hand
	Other Impairments	80- Cardiovascular/heart disease with or without restrictions or limitation on activity; a history of heart problems w/ complete recovery	80- Heart disease with no restriction or limitation of activity (History of heart problems with complete recovery) 81- Heart disease with restriction of limitation of activity
		83 - Blood diseases (e.g., sickle cell anemia, hemophilia)	[Roughly same as new code. Inserted for reference.]
		84 - Diabetes	[Roughly same as new code. Inserted for reference.]
		86 - Pulmonary or respiratory conditions (e.g., tuberculosis, asthma, emphysema, etc.)	[Roughly same as new code. Inserted for reference.]
		87 - Kidney dysfunction (e.g., required dialysis)	[Roughly same as new code. Inserted for reference.]
		88- Cancer (Present or past history)	88- Cancer- a history of cancer with complete recovery 89- Cancer- undergoing surgical and/or medical treatment
		93 - Disfigurement of face, hands, or feet (such as those caused by burns or gunshot wounds) and noticeable gross facial birthmarks	[Roughly same as new code. Inserted for reference.]
Speech/Language/ Learning Conditions	Speech Impairments	13 - Speech impairment - includes impairments of articulation (unclear language sounds), fluency (stuttering), voice (with normal hearing), dysphasia, or history of laryngectomy	[Roughly same as new code. Inserted for reference.]
	Other Impairments	94 - Learning disability - a disorder in one or more of the processes involved in understanding, perceiving, or using language or concepts (spoken or written) (e.g., dyslexia, ADD/ADHD)	[Roughly same as new code. Inserted for reference.]

Attachment 2 to Bulletin 11–04 -

Schedule A Certification Letter to Claimant

Dear (Claimant Name),

The Office of Workers' Compensation Programs (OWCP) is committed to utilizing all available resources to assist you in returning to gainful employment. A review of your claim reveals that you are a candidate for placement services under the Schedule A hiring authority, which may allow you to return to work with the federal government.

The Federal Government has special appointing authorities for persons with disabilities. Schedule A is an excepted service hiring authority which allows agencies to hire disabled workers without requiring them to compete for the job. The enclosed pamphlet from the Office of Disability Employment Policy provides more information about Schedule A. To be eligible for these noncompetitive, Schedule A appointments, the applicant has to meet certain medical criteria. OWCP has determined that you meet these criteria and is going to certify that you are eligible for this special hiring authority.

In addition to the services being provided to place you in a new position in the private sector, OWCP will provide you with the necessary Schedule A certification documentation, contact federal agencies on your behalf, and conduct job searches for federal jobs that match your qualifications. You will be provided resume preparation assistance, interview coaching, and other services that will assist with your job search.

In order to ensure that you understand this process and can get any questions answered, we would like to conduct a conference call on [insert date] at [insert time]. Your Rehabilitation Counselor will participate in this call, as well as the Rehabilitation Specialist from [insert district office name]. I will call you at [insert phone number], so please contact me if this number is incorrect. If you are unable to participate in a conference call at this time, please contact me so that it can be rescheduled.

I look forward to working with you over the next few months. Please do not hesitate to contact me with any questions.

Sincerely,

(Schedule A RS Name)
Schedule A Rehabilitation Specialist

Attachment 3 to Bulletin 11–04 -

Schedule A Disability and Job Readiness Certification

To Whom It May Concern:

This letter serves as certification that (name of claimant) is an individual with a severe physical, intellectual, or psychological disability that qualifies him/her for consideration under 5 CFR §213.3102 (u), Schedule A hiring authority, appointment for Persons with Disabilities.

Additionally, this employee is certified as job ready in a _________ (ex: office, food worker, warehouse) setting and is likely to succeed in performing the duties of the position he/she is seeking.

I may be contacted at (address and phone number).

Thank you for your interest in considering this individual for employment.

(Schedule A RS Name)
Schedule A Rehabilitation Specialist

Attachment 4 to Bulletin 11–04 -

Schedule A Disability Certification

To Whom It May Concern:

I may be contacted at (address and phone number).

Thank you for your interest in considering this individual for employment.

(Schedule A RS Name)
Schedule A Rehabilitation Specialist

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FECA BULLETIN NO. 11–05

Issue Date: May 3, 2011

Subject: Usage Guidelines for Fentanyl Products

Background: The National Institute on Drug Abuse identified fentanyl, an extremely potent narcotic, as an emerging drug of abuse with multiple deaths reported annually due to its abuse. There are two formulations of this narcotic: fast-acting and sustained-release. The fast-acting formulation is highly addictive and is indicated only for the treatment of break-through pain for those with cancer-related pain not controlled using conventional narcotic pain medications. Its use for other conditions creates an unacceptable high risk for addiction, and narcotic addiction impairs a worker's ability to return to meaningful employment.

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.

In accordance with the discretion granted to DOL and delegated to OWCP, OWCP's Division of Federal Employees' Compensation (DFEC) is instituting a new policy and program to monitor and closely manage the use of fast-acting fentanyl products such as Actiq and Fentora and the prescribing of parenteral fentanyl products.

The new policy does not preclude prescribing fast-acting or parenteral fentanyl for any claimant with a work-related cancer diagnosis.

Purpose: To provide guidance to claims staff on the use of fast-acting fentanyl products, and how to manage cases where a claimant is receiving such a product for a work-related condition other than cancer.

Action:

1. A new medication authorization automatic processing rule is being implemented whereby prescriptions for fast-acting fentanyl products will deny unless the claimant has an accepted work-related condition of cancer. Note however that not all cancers will meet the criteria for the authorization of fentanyl. The following cancers will not be covered: non-melanoma cancers of the skin and carcinoma in situ. Also, benign tumors, by definition, are not cancer; thus, fentanyl use is not authorized.

2. Those claimants currently receiving fast-acting fentanyl products who do NOT have cancer will need additional case management.

3. For any claimant currently receiving a fast-acting fentanyl product who does not have an accepted condition of cancer, the Claims Examiner (CE) should release a letter to the physician outlining DFEC's new policy and requesting an updated treatment plan that does not include fast-acting fentanyl products within 30 days.

See attachment 1 of this bulletin for a sample of that letter. A copy of the letter should also be sent to the claimant.

4. If the physician updates the treatment plan to omit fast-acting fentanyl products, no further action is needed. Likewise, if no response is received from the claimant or the physician, no further action is needed, as it will be assumed that an alternative method of treatment has been chosen.

5. If the claimant responds without any medical documentation from his/her physician, the claimant should be directed back to his/her treating physician.

6. If the physician responds back with an indication that a fast-acting fentanyl product is an appropriate treatment for the claimant's accepted condition(s), the case should be reviewed in detail in conjunction with the physician's response. The CE should respond based on the specific information in the case and again request the physician to choose an alternative treatment regimen, since OWCP will cease payment for any fast-acting fentanyl product.

7. If there is any indication of addiction to the fast-acting fentanyl product, the CE can also alert the physician and the claimant that treatment for substance abuse can be authorized at OWCP expense.

As outlined in FECA Procedure Manual 2-0813-16 and 3-0400-5(b)(4), ordinarily inpatient care will be limited to a one-time 28-day stay at a reputable facility, though in unusual circumstances additional inpatient care may be authorized. Outpatient treatment may also be approved by itself or as a follow-up measure to inpatient care. Likewise, counseling in a group setting may be undertaken at OWCP expense.

8. If necessary, guidance from the office District Medical Advisor (DMA) can be obtained. The case may also be reviewed by the OWCP Medical Director if deemed warranted.

9. After notice has been provided and authorization for alternative treatment regimens has been extended, payment for all fast-acting fentanyl products for claimants without a work-related cancer condition will cease. If necessary, a formal decision denying such medication can be issued after all necessary development, providing that notice has been provided.

Applicability: Appropriate National and District Office personnel.

Disposition: This bulletin is to be retained until the Procedure Manual is updated.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Distribution: List No. 2 – Folioviews Groups A, B and D (Claims Examiners, All Supervisors, District Medical Advisors, Fiscal Personnel, Systems Managers, Technical Assistants, Rehabilitation Specialists and Staff Nurses)

Attachment to FECA Bulletin 11–05

LETTER TO PHYSICIAN AND CLAIMANT – CURRENT FENTANYL USE

Dear NAME OF PHYSICIAN:

According to our records, you are treating CLAIMANT'S NAME under the provisions of the Federal Employees' Compensation Act (FECA). You are receiving this letter because our records indicate that this worker is being prescribed a fentanyl product by your office.

Under the FECA, the Department of Labor's (DOL) 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. In accordance with the discretion granted to DOL and delegated to OWCP, OWCP is undertaking a review of certain prescription drugs and their usage. OWCP's Division of Federal Employees' Compensation (DFEC) is instituting a new policy and program to monitor and manage the use of fast-acting fentanyl products such as Actiq and Fentora and the prescribing of parenteral fentanyl products.

One goal of this policy is to severely limit the use of fentanyl products. While this does not preclude prescribing fast-acting or parenteral fentanyl for claimants who have a diagnosis of cancer that has been accepted as work-related, this individual's case has not been accepted for cancer. The case has been accepted for the following work-related conditions: LIST ACCEPTED CONDITIONS.

[Optional paragraph if more than one fentanyl-prescribing provider]
To ensure you are aware of the complete extent of your patient's use of these products, our records indicate that you are one of TOTAL NUMBER providers prescribing fast-acting fentanyl for this worker.

Narcotics usage can impair a worker's ability to return to and maintain meaningful employment. Appropriate pain management involves developing a treatment plan detailing the use of available non-narcotic modalities to include mental health evaluation and therapy, pain control clinics, and alternative pain-control modalities focused on reduction or elimination of narcotic pain relievers. DFEC may authorize various types of pain management therapies in lieu of narcotics that would enable a worker's return to employment.

CLAIMANT'S NAME case will be reviewed again in 30 days. Please submit and/or update a narrative treatment plan for this individual, taking into account DFEC's new limitation on fentanyl products, within that time frame. If you desire additional information, please do not hesitate to contact our office; your inquiry may be referred to the OWCP Medical Director if deemed warranted.

Sincerely,

CLAIMS EXAMINER

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FECA BULLETIN NO. 11–06

Issue Date: August 4, 2011

Subject: DFEC Regulations, Published June 28, 2011

Background: Prior to this update, the program's regulations were last substantially revised in 1999. Since then, the organization and authority of the Office of Workers' Compensation Programs (OWCP) has changed, new provisions have been added to the statute, and experience has shown that certain parts of the regulations needed clarification or revision to promote fairness and efficiency in the claims process. In addition, the Division of Federal Employees' Compensation (DFEC) has made substantial technological advances that helped preserve administrative resources and improve efficiency in the claims process since the 1999 regulations. OWCP determined that the regulations governing the administration of the Federal Employees' Compensation Act (FECA) required updating.

OWCP's Notice of Proposed Rulemaking was published in the Federal Register on August 13, 2010, and the comment period closed on October 12, 2010. After review of all comments submitted, the Final Rule was published on June 28, 2011, effective as of August 29, 2011. Even though this most recent update is not a wholesale revision of the existing regulations, consistent with past practice, the entire regulation was republished for ease of use.

Purpose: Procedure Manual updates, where necessary, are forthcoming. In the interim, this bulletin provides a brief synopsis of the regulations that were substantively changed and a description of those changes.

20 CFR Part 1

This subpart has been amended to reflect the change in organization at the Department of Labor that occurred on November 8, 2009, when the Employment Standards Administration (ESA) was dissolved and the authority that the Secretary of Labor had previously delegated under the Federal Employees' Compensation Act (FECA) to ESA was delegated by the Secretary to the Director, OWCP.

20 CFR Part 10

Subpart A -- General Provisions

This subpart is substantially the same as the prior subpart A (§§10.0 through 10.18). The majority of the changes to this subpart involved updating the regulations as a result of the addition of the new death gratuity benefit which was added to the FECA by 5 U.S.C. 8102a, and by adding clarification language in a number of sections.

Definitions and Forms

Section 10.2 now includes the new subpart J of this part which administers the death gratuity benefit that was added to the FECA in 2008 by 5 U.S.C. 8102a.

Section 10.5 has been revised to restore the FECA statutory definitions and citations, as the absence of these citations has at times caused confusion regarding what definitions were applicable. 10.5(x) was updated to clarify the definition of a recurrence of disability.

Section 10.6 now includes a reference to the special definitions for survivorship and dependency that apply only to the new death gratuity benefit to promote clarity.

Section 10.7 has been updated to list all new forms described above and to eliminate forms that are no longer in use.

Information in Program Records
Section 10.10 has been amended to state that information may be released under the Privacy Act through the routine uses that apply to the records if such release is consistent with the purpose for which the records were created.

Rights and Penalties

Section 10.16 has been revised to note that a civil action may be maintained under the False Claims Act to recover erroneous payments under the FECA.

Section 10.17 has been revised to clarify when benefits are terminated for defrauding the Federal Government to eliminate confusion concerning what day should be used when a guilty plea has been entered. When a beneficiary either pleads guilty to or is found guilty on either Federal or State criminal charges of defrauding the Federal Government in connection with a claim for benefits, the beneficiary's entitlement to any further compensation benefits will terminate effective the date of conviction, which is the date of the verdict, or, in the case of a plea bargain, the date the claimant made the plea in open court (not the date of sentencing or the date court papers were signed). This section was also updated to note that the employing agency shall provide the documentation needed for termination under this section, and that termination of entitlement under this section is not affected by any subsequent change in or recurrence of the beneficiary's medical condition.

Section 10.18 has been revised to provide an affirmative duty for a beneficiary to report to OWCP any incarceration based on a felony conviction that would result in forfeiture of that beneficiary's right to compensation during incarceration.

Subpart B – Filing Notices and Claims; Submitting Evidence

This subpart is substantially the same as the prior subpart B (§§10.100 through 10.127). Most changes involve the electronic submission of forms. Other changes include the administration of the change to the waiting period for employees of the United States Postal Service necessitated by a statutory amendment in 5 U.S.C. 8117.

Notices and Claims for Injury, Disease, and Death–Employee or Survivor's Actions
Sections 10.100, 10.101, 10.102, 10.103 and 10.105 all have been revised by an identical provision that allows for electronic submission of notices and claims forms. This change includes a provision that all agencies should create a method to submit such forms electronically by December 31, 2012, by which time OWCP will have implemented a method to enhance the agencies' ability to file forms electronically.

Section 10.102 was also revised to reflect that form CA-8 is no longer used and that form CA-7 should be used to claim compensation for additional periods of disability.

Section 10.103 has been revised to provide authority to create a separate form for schedule award claims under 5 U.S.C. 8107. A separate form, however, has not been created at this time.

Section 10.104 was revised to make clear what constitutes a recurrence of disability and to explain the basis for modification of a loss of wage-earning capacity determination. The addition of paragraph (c) to this section clarifies the distinction by incorporating longstanding case law from the Employees' Compensation Appeals Board (ECAB). OWCP, however, maintained authority to adjudicate a limited period of disability following the issuance of a loss of wage-earning capacity decision, e.g. where an employee has a demonstrated need for surgery.

Notices and Claims for Injury, Disease, and Death--Employer's Actions
Section 10.111 has been amended to reflect the change in law regarding waiting periods for Postal Service employees incorporated in the amendment to 5 U.S.C. 8117. 10.111(d) outlines that Postal Service employees are not entitled to compensation or continuation of pay for the waiting period, the first three days of disability, unless disability exceeds 14 days.

Evidence and Burden of Proof
Section 10.115 has been revised to clearly state that the burden of proof remains with the claimant even when OWCP requests additional information, as provided by ECAB case law.

Decisions on Entitlement to Benefits
Section 10.127 has been amended to remove the language stating that service of a decision on either the claimant or the representative would count as service to both, as this no longer reflects current practice of the OWCP. OWCP serves decisions on entitlement to both the claimant and the representative.

Subpart C--Continuation of Pay

Subpart C (§§10.200 through 10.224) continues unchanged from the prior regulations, except for a change to §10.200. The change to this section reflects the change to continuation of pay for Postal Service employees as a result of the statutory change to 5 U.S.C. 8117, which provides that Postal Service employees are not entitled to continuation of pay for the first 3 days of temporary disability unless that disability exceeds 14 days or is followed by permanent disability.

Subpart D–Medical and Related Benefits

Subpart D (§§10.300 through 10.337) is mostly unchanged. Most of the changes involve technological advances since the last update of the regulations which caused procedures to be changed. Other changes clarify the prior regulations or codify current practice.

Emergency Medical Care
Section 10.300 has been amended to clarify that the Form CA-16, which provides authorization for initial medical treatment, authorizes treatment from the date of injury, not the date the form is signed. Part 6 of the CA-16 has been updated to reflect this change.

Medical Treatment and Related Issues
Section 10.310 has been amended in a number of places. It has been modified to codify OWCP's authority to utilize field nurses in facilitating and coordinating medical care and amended to clearly state that certain non-physician providers (such as physician's assistants, nurse practitioners, and physical therapists) may provide authorized services to injured employees, to the extent allowed under Federal and state law including licensure by any appropriate regulating body for that profession. This section was also updated to codify OWCP's authority to contract with specific providers to provide services and appliances; outline specific requirements for providers of Durable Medical Equipment; and allow OWCP to offset the costs of prior rental payments against a future purchase and provide refurbished equipment when appropriate in order to help control the cost of providing this equipment.

Section 10.311(d) has been amended to clarify that chiropractors can only provide physical therapy services under the direction of, or as prescribed by, a qualified physician.

Section 10.314 relating to attendant services has been substantially shortened from the prior regulation. This section outlines that OWCP will pay for the services of an attendant under section 8103 of the Act, instead of section 8111(a), as long as services have been determined to be medically necessary and are provided by a home health aide, licensed practical nurse, or similarly trained individual. Existing attendant allowance payments initiated prior to January 4, 1999 made under 5 U.S.C. 8111(a) will continue.

Section 10.315 has been substantially modified, increasing the reasonable distance of travel up to a roundtrip distance of 100 miles. This section has also been amended to explain that travel should be undertaken by the shortest route, and, if practical, by public conveyance; however, if the medical evidence shows that the employee is unable to use these means of transportation, OWCP may authorize travel by taxi or special conveyance.

Directed Medical Examinations
Section 10.320 has been amended to add language allowing another person to be present at an OWCP-directed examination where there is rationalized medical evidence demonstrating that such a person is needed. Also note that another person may be allowed to be present as part of a reasonable accommodation under federal disability non-discrimination law.

Section 10.323 has been amended by expressly noting that examinations required by OWCP include any testing in connection with such an exam, e.g. a functional capacity evaluation. A new paragraph (b) was also added which details the process of how OWCP suspends compensation for obstructing a medical examination, as well as to explain how the employee can end that obstruction.

Subpart E--Compensation and Related Benefits

Subpart E (§§10.400 through 10.441) is largely unchanged from the prior regulation. Of the changes made to this subpart, most are to clarify the prior regulation by codifying ECAB case law or to promote administrative efficiency.

A few additions have been made, including the addition of the skin as a schedule member and including language regarding electronic payments and their effect on overpayments.

Compensation for Disability and Impairment
Section 10.401 has been amended to reflect the change in when the waiting period begins for Postal Service employees after the amendment to 5 U.S.C 8117 as described earlier.

Section 10.403 has been amended to restore the factors used in determining wage-earning capacity as outlined in 5 U.S.C. 8115 (the nature of the injury, the degree of physical impairment, the usual employment, the age of the employee, the employee's qualifications for other employment and the availability of suitable employment) where actual earnings do not fairly and reasonably represent that capacity.

Section 10.404, which describes how compensation is paid for loss to schedule members under 5 U.S.C. 8107, has been revised to include the statutory schedule members as well as those that have been added by regulation. This section has also been amended to include the skin as a schedule member, for up to 205 weeks of compensation, for injuries sustained on or after September 11, 2001.

Compensation for Death
Section 10.410 has been amended to clarify that survivor's benefits under 5 U.S.C. 8133 are separate and distinct from the death gratuity benefits under 5 U.S.C. 8102a.

Section 10.413 has been amended to codify in the regulations the requirement of 5 U.S.C. 8109 and ECAB case law, which states a claim for a schedule award must be filed while the claimant is still alive in order for the claim to be paid.

Section 10.415 has been amended to modernize the regulation to provide additional detail on handling the increasing number of governmental payments made by electronic fund transfer (EFT). The regulation now provides that if a beneficiary, or someone acting on his or her behalf, receives a check or electronic payment which includes payment of compensation for any period after the date when entitlement ended, he or she must promptly return such funds to OWCP.

Section 10.417 has been revised to streamline the process by which employees establish dependency based on student status and adult children who are incapable of self-support. In this section, OWCP has reduced the reporting requirements in both of these instances to once each year, while placing an affirmative duty on the employee to report any change in the conditions to OWCP. Furthermore, this section was amended to add a new section allowing an employee to establish the permanency of an adult child's mental or physical disability.

Adjustments to Compensation
Section 10.423 has been amended to delete the discussion that suggested that claims for compensation were subject to garnishment from claims from other Federal agencies.

Section 10.425 has been amended to clarify that leave donated to an employee through an employing agency's leave program is not leave that may be restored through the leave buy back process.

Overpayments
10.430 has been amended to address the issue of when a claimant receives, or has knowledge of, an electronic payment. The regulation now provides that OWCP will use the normal business transaction definition of such receipt, where a payee is presumed to have knowledge of any payment once the payee has had the opportunity to receive a bank statement from the payee's financial institution.

Section 10.433, which pertains to when OWCP can waive recovery of an overpayment, was likewise amended to reflect that an employee is required to review such bank statements in order to ensure proper receipt of FECA benefits.

Section 10.440 was amended to include District Court and ECAB case law which allows OWCP to pursue collection of a debt while any such determination is pending before ECAB.

Section 10.441 was amended to describe the process used by OWCP to collect overpayment debts following the death of an employee. The regulation now provides that if no further benefits are payable with respect to the individual's death, OWCP may file a claim with the estate of the individual or seek repayment of the overpayment through other means, including referral of the debt to the Treasury Department.

Subpart F–Continuing Benefits

Subpart F (§§10.500 through 10.541) is also largely unchanged. Most changes clarify the prior regulations by further describing the procedures and policies of OWCP and by including ECAB case law explaining those prior regulations.

Rules and Evidence
Section 10.500 was restructured to more clearly provide information to claimants regarding their obligation to perform light duty when the evidence establishes that work is available within the employee's restrictions and that compensation for wage loss due to disability is available only for any periods during which an employee's work-related medical condition prevents him or her from earning the wages earned before the work-related injury. While this section does not provide any new information or communicate a change in interpretation of current law, the expectations have now been more clearly defined and examples have been provided in the regulation itself. Sub-section (a) now outlines that an employee is not entitled to compensation for any wage loss claimed on a CA-7 to the extent that evidence contemporaneous with the period claimed on a CA-7 establishes that an employee had medical work restrictions in place; that light duty within those work restrictions was available; and that the employee was previously notified in writing that such duty was available. Similarly, an employee receiving continuing periodic payments for disability was not prevented from earning the wages earned before the work-related injury if the evidence establishes that the employing agency had offered, in accordance with OWCP procedures, a temporary light duty assignment within the employee's work restrictions. This kind of determination, however, is separate and distinct from the kind of decision referenced in sub-section (c), which provides that a disabled employee who refuses to seek or accept suitable employment within the meaning of 5 U.S.C. 8106(c)(2) is not entitled to compensation.

Section 10.501 was amended to include a new subparagraph (2), which allows OWCP to require less medical documentation for continuing benefits where circumstances merit such reduced documentation, but the regulation maintains that this will ordinarily not be less than once every three years.

Return to Work – Employer's Responsibilities
Section 10.509 was also modified by splitting that prior section into two sections, §§10.509 and 10.510. Section 10.509 now covers only situations involving the effect of downsizing of a light-duty position on compensation and states that, "In general, an employee will not be considered to have experienced a compensable recurrence of disability as defined in §10.5(x) merely because his or her employer has eliminated the employee's light-duty position in a reduction-in-force or some other form of downsizing."

Section 10.510 describes when a light duty job may be used as a basis for a loss of wage-earning capacity determination. It states that a light-duty position "may form the basis of a loss of wage-earning capacity determination if that light duty position is a classified position to which the injured employee has been formally reassigned. The position must conform to the established physical limitations of the injured employee; the employer must have a written position description outlining the duties and physical requirements; and the position must correlate to the type of appointment held by the injured employee at the time of injury. If these circumstances are present, a determination may be made that the position constitutes 'regular' Federal employment."

Section 10.511 is a new section that codifies longstanding ECAB case law which delineates the only circumstances under which a loss of wage-earning capacity determination may be modified (a material change in the nature and extent of the injury-related condition, the employee has been retrained or otherwise vocationally rehabilitated, or the original determination was erroneous).

Return to Work--Employee's Responsibilities
Section 10.517 has been modified to make clear that when an employee refuses to seek or accept suitable work, the resulting termination of compensation applies to any prior injuries in which compensation may be payable, as well as the claim under which compensation has ended.

Sections 10.518 and 10.519 have been modified to delete references to registered nurses under the vocational rehabilitation of employees, as ECAB ruled that the sanctions for failing to cooperate with vocational rehabilitation do not apply to nurse services.

Section 10.521 has been added to explain the process followed by OWCP when an employee that is involved in the vocational rehabilitation process or other return-to-work effort elects to receive benefits from the Office of Personnel Management instead of FECA benefits and is no longer participating in the vocational rehabilitation process. In such instances, OWCP may use the evidence of file to perform a loss of wage-earning capacity determination.

Reports of Earnings From Employment and Self-Employment
Section 10.525 has been amended to clarify that an employee must report all employment activities, including all outside employment, as such employment is material to a disability determination. This is so even where such earnings from concurrent dissimilar employment held at the time of injury do not reduce compensation payable but may still assist OWCP in assessing disability for work.

Section 10.526 has been amended to clarify that in reporting volunteer activities, the fact that the employee received no monetary compensation for those activities is not a basis for not reporting those activities to OWCP under ECAB case law.

Reports of Dependents
Section 10.537 was amended to reflect the change in reporting for non-minor children to once a year as described above in the discussion regarding §10.417.

Reduction and Termination of Compensation
Section 10.540 has been reorganized by splitting paragraph (a) into new paragraphs (a) and (b), to promote clarity and ease of use of the section. Paragraph (a) refers to providing the beneficiary with written notice of a proposed action and 30 days to submit relevant evidence or argument to support entitlement to continued payment of compensation. Paragraph (b) outlines the requirements to be included in such notice and stipulates that payment of compensation will continue until any evidence or argument submitted has been reviewed and an appropriate decision has been issued, or until 30 days have elapsed if no additional evidence or argument is submitted.

Subpart G--Appeals Process

Subpart G (§§ 10.600 through 10.626) also continues largely unchanged; the changes that have been made were made to promote clarity and update the regulations to reflect changes in practice and technology that have taken place since the regulations were last updated.

Reconsiderations and Reviews by the Director
Section 10.606 has been modified to add language requiring that reconsideration requests be signed and dated so that OWCP can ascertain that the person (such as a representative) requesting reconsideration is authorized to do so at the time such request is made.

Section 10.607 has been modified by changing the date of the reconsideration request for timeliness purposes from the date mailed to the date received by OWCP.

Section 10.609 has been modified to note that OWCP will not wait for comments from an employing agency regarding a request for reconsideration when comments from the agency are not germane to the issue being resolved on reconsideration. The regulation now specifically states that, "Where a reconsideration request pertains only to a medical issue (such as disability or a schedule award) not requiring comment from the employing agency, the employing agency will be notified that a request for reconsideration has been received, but OWCP is not required to wait 20 days for comment before reaching a determination."

Hearings
Section 10.616 has been modified to accommodate alternative types of hearings, such as hearings by teleconference and videoconference.

Section 10.617 has been amended to cover a number of policies that were previously not contained in the regulation. First, this section has been amended to note how an employee may request accommodations from OWCP's Branch of Hearings and Review (BHR). This section has also been amended to note that hearings are generally limited to one hour, and to note that the transcript is the official record of the hearing. This section has also been modified to clarify the time limits for submitting comments following a hearing. Finally, a new paragraph (h) has been inserted as a reference to a statutory section that allows an OWCP hearing representative to certify any misconduct to a District Court for appropriate handling.

Section 10.618 has been amended to clarify that when an employee requests that a hearing be changed to a review of the written record, all evidence should be submitted with that request.

Section 10.619 has been amended to clarify that if a request for a subpoena has been made, the requestor must explain why that subpoena is necessary at the time the request is made. This section was further amended to allow subpoenas to be issued through a commercial carrier through a service equivalent to a certified mail, return receipt-requested letter.

Section 10.621 has been amended to clarify that it is in the discretion of the hearing representative whether the employing agency may be allowed to have more than one representative attend the hearing.

Section 10.622 has been amended in a number of ways. First, this section was amended to accommodate the alternative forms of hearings discussed above and to explain how these types of hearings are handled with a monthly docket. Sub-section (b) provides that OWCP will entertain any reasonable request for scheduling the oral hearing, including whether to participate by teleconference, videoconference or other electronic means, but such requests should be made at the time of the original application for hearing. Sub-sections (c) and (d) outline guidelines for rescheduling a hearing once one has been scheduled and OWCP has mailed appropriate written notice to the claimant and representative. Sub-section (e) clarifies that any determination regarding scheduling (including format) is at the sole discretion of the hearing representative and is not reviewable. This section has also been amended to add new sub-section (f), which restores prior regulatory language addressing abandonment of hearings.

Review by the Employees' Compensation Appeals Board (ECAB)
Section 10.626 has been amended to cross reference ECAB's rules of procedure.

Subpart H--Special Provisions

While a majority of the provisions in subpart H (§§10.700 through 10.741) remain unchanged, some extensive changes have been made to certain portions of this subpart. This subpart has been changed to reference that an attorney associated with a law firm may represent claimants and to explicitly state that OWCP will communicate with the law firm. The regulation clarifies OWCP policy that contingency fees are not allowed under any circumstances. The FECA subrogation sections have been expanded to codify current practice; to promote transparency and clarity where a third party is responsible for an injury or death; and to better explain how subsequent FECA subrogation claims are handled. Finally, the provision relating to coverage of Peace Corps volunteers has been amended to restore statutory language concerning such coverage.

Representation
Section 10.700 has been amended to clarify that where a claimant's representative is an attorney, OWCP may communicate with any attorney or employee in the attorney's law firm.

Section 10.702 has been amended to clearly state that contingency fees are not allowed when representing beneficiaries under the FECA. This explicit language addressing contingency fees was removed during the 1999 regulatory update; however, experience since that update has shown that the removal of this language caused some to believe that the ban on contingency fees had been removed as well, which was not the case.

Section 10.703 has been amended to make clear that OWCP can only approve representative's fees for services that have been performed before OWCP, and references that ECAB must approve fees for services performed in front of ECAB. This section has also been amended to clarify that contingency fees will not be approved for any reason, and that they are not subject to the "deemed approved" process where a fee may be approved if a claimant concurs with such a fee. If the fee is disputed, the regulations provide that OWCP will consider the customary local charge for a representative with similar qualifications in considering what constitutes a reasonable fee.

Section 10.704 highlights that a person who collects a fee without OWCP approval may be charged with a misdemeanor.

Third Party Liability
Section 10.705 has been amended to give the full address where information on subrogation claims may be sent.

Section 10.707 has been amended to require that certain information be submitted in circumstances where the employee is not the only plaintiff in a suit.

The provisions in 10.711 have been moved to 10.712 and the provisions in 10.712 have been moved to 10.711. The new order reflects the process of calculating the refund and surplus in accordance with the statement of recovery Form CA-1108. Section 10.711 reflects the procedures that have been in place for a number of years and sets out in great detail the manner in which the amount of recovery of the employee is determined including situations where property loss is part of the recovery or where loss of consortium or wrongful death and survival actions have been asserted. Section 10.712 now clarifies that the crediting of a surplus is done against both wage-loss compensation and medical benefits, and provides detail regarding the steps to follow in calculating the refund and surplus. This section also provides additional examples of how these calculations are made, including cases where loss of consortium and wrongful death and survival actions have been asserted.

Section 10.714 has been amended to clarify that OWCP may seek reimbursement for all types of benefits paid to an employee when that employee has successfully sued a third party for that injury. This section was also amended to clarify how that employee may obtain a copy of the disbursements made by OWCP in his/her claim.

Peace Corps Volunteers
Section 10.730 has been amended to restore the statutory language applicable to coverage of claims involving Peace Corps volunteers. The statutory language is a recognition of the difficulties for such volunteers to establish that certain injuries or illness are related to their covered activities. The change in language allows OWCP to consider evidence that controverts coverage, while still allowing the volunteer to establish the claim, and clarifies that a temporary aggravation of a preexisting condition may be paid without the necessity of accepting all disability related to that condition.

Subpart I--Information for Medical Providers

A number of changes have been made to subpart I. The majority of these changes have been made to address OWCP's electronic bill processing system and to comport this processing with that done in other compensation programs administered by OWCP. This subpart has also been revised to modify the process by which OWCP excludes medical providers by including the Department of Labor's Office of Inspector General (DOL OIG) in the process.

Medical Records and Bills
Section 10.800 has been amended to describe OWCP's provider enrollment process and automated bill processing and authorization system, which has been substantially revised since the last time the regulations were updated.

Section 10.801 has been amended to clarify how medical bills are currently processed. In addition to those changes, this section has been amended to codify that OWCP may require nursing homes to abide by a fee schedule for admissions made after the effective date of the regulations, which will standardize billing practices and promote cost containment. This section has also been amended to provide language making it clear that providers must adhere to accepted industry standards when billing, i.e. billing practices such as upcoding and unbundling are not in accord with industry standards and such attempts to circumvent the fee schedule through these practices is prohibited under the regulations.

Section 10.802 has been amended to clarify how an injured employee currently seeks reimbursement for out of pocket expenses.

Medical Fee Schedule
Section 10.805 has been revised in order to give the Director of OWCP the express authority to determine a fee schedule for services provided by nursing homes.

Section 10.809 has been revised to clarify that the fee schedule regarding medicinal drugs applies whether the drugs are dispensed by a pharmacy or by a doctor in his/her office. This section has also been modified by providing OWCP the authority to require the use of a specific contract provider for medicinal drugs in the future. Finally, the authority to require the use of generic drugs has been moved to this section as new subparagraph (c).

Section 10.811 has been amended to make clear that OWCP will not correct procedure or diagnosis codes on submitted bills. Instead, those bills will be returned to the provider for correction, as the responsibility for proper submission lies with the provider.

Exclusion of Providers
Section 10.815 has been amended by adding new subsections (i) and (j), which set out additional reasons for excluding providers. These new reasons are failure to update a change in provider status and having engaged in conduct found by OWCP to be misleading, deceptive or unfair.

Section 10.816 has been amended to add new subsection (c), which clarifies that a provider may be voluntarily excluded without the exclusion procedures being initiated.

Section 10.817 has been amended to provide that the DOL OIG is primarily responsible for investigating possible exclusions of providers, not OWCP.

Sections 10.818 through 10.821 have been revised to change the deciding official in exclusion matters from just the Regional Director to the Regional Director or any other official specified by the Director of the Division of Federal Employees' Compensation. These sections have also been modified to recognize the role of DOL OIG. Finally, these sections were modified to allow service of decisions through a commercial carrier service equivalent to certified mail, return receipt requested.

Sections 10.823 through 10.824 have been modified to change the manner in which the administrative law judge's recommended decision becomes final. These sections were changed to reflect that no recommended decision regarding exclusion will become final until the Director of OWCP issues the decision in final form.

Section 10.825 has been amended to reflect current practices of OWCP, as OWCP may use discretion in determining who should receive a notice of exclusion.

Section 10.826 has been modified to correct terminology and to clarify that the Director of OWCP can order reinstatement of excluded providers.

Subpart J--Death Gratuity

Subpart J (§§ 10.900 through 10.916) is unchanged.

20 CFR Part 25

Section 8137 provides the conditions and parameters for FECA coverage for non-citizen, non-resident employees of the United States, any territory, or Canada. Part 25 describes how benefits will be paid to such employees. Under the statute, the Director has authority to create a special schedule. In the interest of fairness, the Director has created a new more comprehensive special schedule for disability that will pay benefits on an ongoing basis for up to two years and will pay a lump sum thereafter for cases of permanent total disability. Payment for death benefits will also be paid in a lump sum to facilitate benefit delivery and to ease administrative burdens.

Subpart A--General Provisions

Section 25.1 has been revised to reflect a change in policy in the payment of compensation under the FECA to employees of the United States who are neither citizens nor residents of the United States, any territory, or Canada, as well as any dependents of such employees. The new regulation modifies the benefit structure for foreign nationals by using the authority under section 8137 to create a special schedule of compensation for foreign nationals to provide a reduced percentage of FECA benefits.

Section 25.2(a) has been revised to provide that the special schedule set forth in subpart B would apply to any non-citizen, non-resident federal employee who is neither hired nor employed in the United States, Canada or in a possession or territory of the United States, with respect to any injury (or injury resulting in death) occurring subsequent to the effective date of the publication of the final rule in the federal register.

Section 25.2(b) has been revised to provide that the special schedule in subpart B shall apply to cases unless the injured non-citizen, non-resident employee receives compensation pursuant to a specific separate agreement between the United States and another government (or similar compensation from another sovereign government); or the employee receives compensation pursuant to the special schedule under subpart C; or the employee otherwise establishes entitlement to compensation under local law pursuant to section 25.100(e) of this part.

Section 25.2(c) has been revised to provide that compensation in all cases of such non-citizen, non-resident employees paid and closed prior to 60 days after the publication of the final rule in the federal register are deemed paid in full under 5 U.S.C. 8137.

Section 25.2(d) has been revised to provide that the compensation received under the special schedule set forth in subpart B, or as otherwise specified in 25.2(b), is the exclusive measure of compensation in cases of injury (or death from injury) to non-citizen, non- resident employees of the United States.

Section 25.2(e) was revised to clarify the information in former section 25.2(e) that compensation for disability and death of non-citizen, non-resident employees outside the United States under this part shall in no event exceed that generally payable under the FECA.

Section 25.3 remains unchanged, providing that the Director has the authority to make lump-sum awards (in the manner prescribed by 5 U.S.C. 8135) to settle claims pursuant to section 8137 of the FECA.

Section 25.4 remains unchanged except for subsection (c), which is revised to read "Verification of the employment and casualty by Department of Defense personnel" instead of "military personnel" to reflect that the responsibility for providing the type of evidence necessary to make a claim under this section resides with the Department of Defense.

Section 25.5 has been renumbered but otherwise remains unchanged, providing that an employee who is a permanent resident of any United States possession, territory, commonwealth or trust territory will receive full FECA benefits.

Subpart B – The Special Schedule of Compensation

Section 25.100 has been amended to provide that the definitions under this subpart are generally the same as those provided under the rest of the FECA statute and regulations.

25.101 has been modified to describe how compensation for temporary total and partial disability, and permanent total and permanent partial disability, are paid to non-citizen, non-resident employees. Provisions under the former section 25.101 for death benefits have been revised and currently appear in section 25.102.

Section 25.101(a) has been amended to provide for temporary total disability where the injured employee is disabled for less than two years. Under this provision, the employee receives 50 percent of the monthly pay during the period of such disability.

Section 25.101(b) has been amended to provide for temporary partial disability where the injured employee is unable to earn equivalent wages to those earned at the time of injury but is not totally disabled for work. Under this section, the injured employee receives a proportional amount of compensation for the period of disability. The compensation amount is that portion of compensation for temporary total disability, as determined under paragraph (a) of this section, which is equal in percentage to the degree or percentage of physical impairment caused by the disability.

Section 25.101(c) has been amended to provide for permanent total disability where the injured employee will be disabled for greater than two years. This section provides that the injured employee will receive a lump-sum settlement, made by the manner prescribed under 5 U.S.C. 8135, based on compensation equaling 50 percent of the monthly pay.

Section 25.101(d) has been amended to provide for permanent partial disability where there is permanent impairment involving the loss, or loss of use, of a member or function of the body. This section describes how compensation is paid for loss to schedule members, and has been revised to be consistent with the time periods listed under 5 U.S.C. 8107 and the regulations listed in 20 C.F.R. 10.404. In addition to the revision of the time periods, this section has been amended to include the skin as a schedule member, for up to 205 weeks of compensation. This change is consistent with changes made under Part 10. The employee will be paid in a lump sum according to 5 U.S.C. 8135, at 50 percent of the monthly pay.

Section 25.101(e) has been amended to provide that if a beneficiary can show that the amount payable under the special schedule would be demonstrably less than the amount payable under the law of his home country, the Director has the discretion to pay an amount in excess of the special schedule of compensation under 5 U.S.C. 8137(a)(2)(A), not to exceed the amount payable under FECA. This section provides that to request such benefits, the beneficiary must submit the following information: translated copies of the applicable local statute, as well as any regulations, policies and procedures the beneficiary avers are applicable, and a translated copy of an opinion rendered by an attorney licensed in that jurisdiction, or an advisory opinion from a court or administrative tribunal, that explains the benefits payable to the beneficiary.

Section 25.102 has been amended to describe how compensation for death of a non-citizen, non-resident employee is paid.

Section 25.102(a) has been amended to provide for burial expenses not to exceed $800.

Sections 25.102(b)-(i) remain similar in the distribution of death benefits (as delineated in former sections 25.101(a)-(i)), but have been limited to a total of 50 percent of monthly pay.

Section 25.102(j) has been added to provide that death benefits should be paid in a lump sum where practicable pursuant to 5 U.S.C. 8135.

Section 25.102(k) has been added to provide if a beneficiary can show that the amount payable under the special schedule would be demonstrably less than the amount payable under the law of his home country, the Director has the discretion to pay an amount in excess of the special schedule under 5 U.S.C. 8137(a)(2)(A), not to exceed the amount payable under FECA. This section provides that the beneficiary must submit the same information as noted in section 25.101(e).

Section 25.102(l) has been added to inform claimants that a FECA death gratuity of $65,000 may be payable for the death of a non-citizen, non-resident employee, should the death be a result of injury incurred in connection with service with an Armed Force in a contingency operation as set forth in subpart J of Part 10.

Subpart C – Extension of the Special Schedule of Compensation
Section 25.202 has been amended to adjust the maximum amount of compensation payable under that section for inflation, and to provide an automatic, yearly escalator to that amount.

Section 25.203 has been amended to apply the special schedule created by subpart B to non-citizen, non-resident employees in the Territory of Guam, without the modifications contained in the prior regulations.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Distribution: List No. 1 – FolioViews Groups A, B and D (Claims Examiners, All Supervisors, District Medical Advisors, Systems Managers, Technical Assistants, Rehabilitation Specialists, Staff Nurses and Fiscal)

Back to FECA Bulletins Table of Contents

FECA BULLETIN NO. 11–08

Issue Date: August 10, 2011

Subject: Exclusion of Providers

Background: On August 13, 2010, the Office of Workers' Compensation Programs (OWCP) published in the Federal Register a proposal to amend the regulations governing the administration of the Federal Employees' Compensation Act (FECA). On June 28, 2011 the new Regulations were published, and they are effective as of August 29, 2011. The regulations pertaining to the exclusion of providers were substantially revised.

Applicability: All National Office staff and District Office claims personnel; Department of Labor (DOL) Office of the Inspector General (OIG); Employing Agency (EA) personnel and OIG offices; and medical providers for FECA claimants.

References: 20 CFR §§ 10.815 – 10.826.

Purpose: To inform the appropriate personnel of the new regulations and provide instruction on the steps required to exclude a provider.

Actions:

1. A provider means a physician, hospital, or provider of medical services, appliances or supplies.

2. §10.815, which outlines the grounds for excluding a provider from payment under the FECA, was amended by adding two new sections (i) and (j). These new sections provide additional reasons for excluding providers. Under these regulations, a provider shall be excluded from payment under the FECA if the provider has:

(a) Been convicted under any criminal statute of fraudulent activities in connection with any Federal or State program for which payments are made to providers for similar medical, surgical or hospital services, appliances or supplies;

(b) Been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any Federal or State program referred to in paragraph (a) of this section;

(c) Knowingly made, or caused to be made, any false statement or misrepresentation of a material fact in connection with a determination of the right to reimbursement under the FECA, or in connection with a request for payment;

(d) Submitted, or caused to be submitted, three or more bills or requests for payment within a twelve-month period under this subpart containing charges which OWCP finds to be substantially in excess of such provider's customary charges, unless OWCP finds there is good cause for the bills or requests containing such charges;

(e) Knowingly failed to timely reimburse employees for treatment, services or supplies furnished under this subpart and paid for by OWCP;

(f) Failed, neglected or refused on three or more occasions during a 12-month period to submit full and accurate medical reports, or to respond to requests by OWCP for additional reports or information, as required by the FECA and § 10.800;

(g) Knowingly furnished treatment, services or supplies which are substantially in excess of the employee's needs, or of a quality which fails to meet professionally recognized standards; or

(h) Collected or attempted to collect from the employee, either directly or through a collection agent, an amount in excess of the charge allowed by OWCP for the procedure performed, and has failed or refused to make appropriate refund to the employee, or to cease such collection attempts, within 60 days of the date of the decision of OWCP.

(i) Failed to inform OWCP of any change in its provider status as required in section 10.800 of this title.

(j) Engaged in conduct related to care of an employee's FECA-covered injury that OWCP finds to be misleading, deceptive or unfair.

3. §10.816 was amended to add section (c), which clarifies that a provider may be voluntarily excluded without the exclusion procedures being initiated. This clarification is meant to address situations where providers agree to be excluded (for example, where a provider may be faced with criminal charges).

This section also includes automatic exclusions for any provider who has been convicted of a crime described in §10.815(a), or has been excluded or suspended, or has resigned in lieu of exclusion or suspension, from participation in any program as described in §10.815(b).

4. §10.817 was amended to provide that the DOL OIG is primarily responsible for investigating possible exclusions of medical providers. This duty was previously handled by OWCP; however, since OWCP has no investigatory arm and lacks resources to carry out this responsibility, this change in the exclusion process has been made in an effort to improve administrative efficiency of this process.

Upon receipt of information indicating that a provider has or may have engaged in activities enumerated in §10.815(c) through (j), OWCP will forward that information to the DOL OIG for its consideration. If the information was provided directly to DOL OIG, DOL OIG will notify OWCP of its receipt and implement the appropriate action within its authority, unless such notification will or may compromise the identity of confidential sources, or compromise or prejudice an ongoing or potential criminal investigation. DOL OIG will conduct such action as it deems necessary, and, when appropriate, provide a written report to OWCP. OWCP will then determine whether to initiate procedures to exclude the provider from participation in the FECA program. If DOL OIG determines not to take any further action, it will promptly notify OWCP.

5. Any employing agency OIG wishing to submit an investigation pertaining to provider fraud should contact DOL OIG. Employing agency OIG offices should simultaneously notify OWCP; however, the report of investigation should be submitted to DOL OIG for review and appropriate action.

6. §10.817(c) refers to the type of report DOL OIG will prepare for OWCP consideration if there is reasonable cause to believe that violations of §10.815 have occurred. The report should be in the form of a single memorandum in narrative form with applicable attachments that can be easily referenced. The report should be sent to the DFEC Deputy Director (or his/her designee) and contain all of the following elements:

i. A brief description and explanation of the subject provider or providers;
ii. A concise statement of the DOL OIG's findings upon which exclusion may be based;
iii. A summary of the events that make up the DOL OIG's findings;
iv. A discussion of the documentation supporting the DOL OIG's findings;
v. A discussion of any other information that may have bearing upon the exclusion process; and
vi. The supporting documentary evidence, including any expert opinion rendered in the case.

7. §10.818 and §10.819 were revised to change the deciding official in exclusion matters from just the Regional Director to the Regional Director or any other official specified by the Director of the Division of Federal Employees' Compensation (DFEC). This change has been made in recognition of the fact that there may be instances (such as when more than one region is involved) where a Regional Director should not be the deciding official.

8. §10.818 discusses the notice that will be sent to the provider if OWCP determines there exists a reasonable basis to exclude the provider. If OWCP determines that such a basis exists, OWCP shall initiate the exclusion process by sending the provider a letter by certified mail and with return receipt requested (or other similar method), which contains the following elements:

(a) A concise statement of the grounds upon which the exclusion shall be based;

(b) A summary of the information, with supporting documentation, upon which OWCP has relied in reaching an initial decision that the exclusion process should be initiated;

(c) An invitation to the provider to: (1) Resign voluntarily from eligibility for providing services under this part without admitting or denying the allegations presented in the letter; or (2) Request a decision on exclusion based upon the existing record and any additional documentary information the provider may wish to furnish;

(d) A notice of the provider's right, in the event of an adverse ruling by the deciding official, to request a formal hearing before an administrative law judge (ALJ);

(e) A notice that should the provider fail to answer the letter of intent within 60 days of receipt, the deciding official may deem the allegations made therein to be true and may order exclusion of the provider without conducting any further proceedings; and

(f) The address to where the answer from the provider should be sent.

9. §10.819 discusses the requirements for the provider's response and indicates that it should be in writing and include an answer to OWCP's invitation to resign voluntarily. If the provider does not offer to resign, he or she can request that a determination be made upon the existing record and any additional information provided. The provider may also inspect or request copies of information in the record at any time prior to the deciding official's decision by making such request to OWCP within 20 days of receipt of the letter of intent.

Any response from the provider will be forwarded to DOL OIG by OWCP. If DOL OIG has any comments, they will be provided to OWCP within 30 days. OWCP will forward any comments from DOL OIG to the provider, who will then have 15 days to reply.

10. §10.819 also describes OWCP's decision making process. If the provider fails to answer the letter of intent within 60 days of receipt, the deciding official may deem the allegations made therein to be true and order exclusion of the provider. When a decision is made, the deciding official shall issue his or her decision in writing, and shall send a copy of the decision to the provider by certified mail, return receipt requested (or other similar method). The decision shall advise the provider of his or her right to request, within 30 days of the date of an adverse decision, a formal hearing before an ALJ under the procedures set forth in §§10.820 through 10.823. The filing of a request for a hearing within the time specified shall stay the effectiveness of the decision to exclude.

11. §§10.820 through 10.822 provide guidance pertaining to requesting a hearing; how hearings are assigned and scheduled; and how subpoenas or advisory opinions are obtained during the hearing process. A request for a hearing should be sent to the deciding official. If the deciding official receives a timely request for hearing, the case is referred to the Chief ALJ of the Department of Labor, who shall assign it for an expedited hearing.

12. §10.823 and §10.824 were modified to change the manner in which the ALJ's recommended decision becomes final. Prior to this recent update, the decision became final if no objection was filed. Under the new Regulations, no recommended decision regarding exclusion will become final until the Director of OWCP issues the decision in final form.

13. At the conclusion of the hearing, the ALJ shall issue a recommended decision and cause it to be served on all parties to the proceeding, their representatives, and the Director of OWCP. Within 30 days from the date the recommended decision is issued, each party may state, in writing, whether the party objects to the recommended decision. This written statement should be filed with the Director of OWCP. For purposes of determining whether the written statement has been timely filed with the Director, the statement will be considered "filed" on the date that the provider mails it to the Director, as determined by postmark or the date that such written statement is actually received by the Director, whichever is earlier.

14. Written statements objecting to the recommended decision may be filed upon one or more of the following grounds: (1) A finding or conclusion of material fact is not supported by substantial evidence; (2) A necessary legal conclusion is erroneous; (3) The decision is contrary to law or to the duly promulgated rules or decisions of the Director; (4) A substantial question of law, policy, or discretion is involved; or (5) A prejudicial error of procedure was committed.

If a written statement of objection is filed within the allotted period of time, the Director will review the objection and forward the written objection to DOL OIG for comment. DOL OIG will have 14 calendar days from that date to provide OWCP with any additional comments. Any additional comments from DOL OIG will be forwarded to the provider, and the provider will then have 14 calendar days from that date to reply to OWCP.

15. The Director of OWCP will consider the recommended decision, the written record, and any response or reply received and will then issue a written, final decision either upholding or reversing the exclusion. If no written statement of objection is filed within the allotted period of time, the Director of OWCP will issue a written, final decision accepting the ALJ's recommendation, and the decision of the Director of OWCP shall be final with respect to the provider's participation in the program and shall not be subject to further review by any court or agency.

16. §10.825 outlines the effects of exclusion. It provides that OWCP may give notice of the provider exclusion to the following parties: all OWCP district offices; all Federal employers; the CMS (Centers for Medicare and Medicaid Services); and the State or local authority responsible for licensing or certifying the excluded party.

17. Notwithstanding the exclusion of a provider, OWCP shall not refuse an employee reimbursement for any otherwise reimbursable medical treatment, service or supply if: (1) such treatment, service or supply was rendered in an emergency by an excluded physician; or (2) the employee could not reasonably have been expected to have known of such exclusion.

18. An employee who is notified that his or her attending physician has been excluded shall have a new right to select a qualified physician.

19. §10.826 was modified to clarify that the Director of OWCP can order reinstatement of excluded providers, as long as such decision is consistent with the goal to protect the FECA program against fraud and abuse. To satisfy this requirement, the provider must provide reasonable assurances that the basis for the exclusion will not be repeated.

20. If a provider was automatically excluded pursuant to §10.816, the provider will automatically be reinstated upon notice to OWCP that the conviction or exclusion which formed the basis of the automatic exclusion has been reversed or withdrawn. However, an automatic reinstatement shall not preclude OWCP from instituting exclusion proceedings based upon the underlying facts of the matter.

21. A provider excluded as a result of an order issued under these regulations may apply for reinstatement one year after the entry of the order of exclusion, unless the order expressly provides for a shorter period. An application for reinstatement should be addressed to the Director for Federal Employees' Compensation and shall contain a concise statement of the basis for the application, as well as supporting documents and affidavits, if applicable.

Disposition: This bulletin is to be retained until the FECA PM has been updated.

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

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