Issue Date: September 15, 2008
Effective Date: September 1 5, 2008
Expiration Date: September 15, 2009
Subject: SEC Class for Spencer Chemical Company/Jayhawk Works
Background: Pursuant to the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) and 42 C.F.R. Part 83, a petition was filed on behalf of workers from Spencer Chemical Company/Jayhawk Works near Pittsburg, Kansas to be added to the Special Exposure Cohort (SEC).
The National Institute for Occupational Safety and Health (NIOSH) reviewed the petition and determined that it qualified for evaluation under 42 C.F.R. § 83.13. NIOSH submitted its findings to the petitioners and the Advisory Board on Radiation and Worker Health (“the Board”). On July 12, 2008, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC a class of employees who worked at Spencer Chemical Company/Jayhawk Works near Pittsburg, Kansas.
On August 15, 2008, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.
All Atomic Weapons Employer (AWE) employees who worked at Spencer Chemical Company/Jayhawk Works near Pittsburg, Kansas, from January 1, 1956, through December 31, 1961, for a number of workdays aggregating at least 250 workdays occurring either solely under this employment or in combination with workdays within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
A copy of the Secretary’s letter to Congress recommending the designation is included as Attachment 1. The SEC designation for this class became effective as of September 14, 2008, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in a report to Congress. While Congress had the authority to reject the recommendation within the 30-day time frame, no action was taken to contradict the addition of this new SEC class.
While a new SEC class has been added for employees at Spencer Chemical Company/Jayhawk Works, NIOSH has determined that it is possible to reconstruct occupational medical dose and some components of the internal dose. This means that for claims that do not satisfy the SEC membership criteria, a partial dose reconstruction is to be performed by NIOSH.
References: Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. § 7384 et seq.; 42 C.F.R. Part 83, Procedures for Designating Classes of Employees as Members of the Special Exposure Cohort Under EEOICPA; the August 15, 2008 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.
Purpose: To provide procedures for processing SEC claims for workers at the Spencer Chemical Company/Jayhawk Works near Pittsburg, Kansas.
Applicability: All staff.
1. This class encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
2. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has prepared a list of cases with claimed employment at the Spencer Chemical Company/Jayhawk Works during the period of the SEC class. It includes pending cases, cases previously denied, and cases at NIOSH. It also includes specified and non-specified cancer cases. All cases on this comprehensive list must be reviewed by the district office(s) and by the Final Adjudication Branch (FAB) to determine whether the SEC class criteria are satisfied. This comprehensive list will be provided to the appropriate district offices and FAB under separate cover.
The comprehensive list also includes cases identified by NIOSH that should be considered for inclusion in the SEC class. NIOSH will return dose reconstruction analysis records for cases with specified cancers to the appropriate district office along with a CD for each case. The CD contains all of the information generated to date, e.g., CATI report, correspondence, and dose information. Also included on the CD in the Correspondence Folder, should be a copy of the NIOSH letter sent to each claimant informing the claimant of the new SEC class and that his or her case is being returned to DOL for adjudication. A copy of the NIOSH letter to affected Spencer Chemical Company/Jayhawk Works claimants is included as Attachment 2. The claims examiner (CE) must print out a hard copy of the NIOSH letter for inclusion in the case file.
There may be some cases on the comprehensive list that were not identified by NIOSH for potential inclusion in the SEC and consequently are still at NIOSH for a dose reconstruction. These cases must also be evaluated for inclusion in the SEC class in accordance with the procedures in this bulletin. If any such case qualifies under the SEC class, the CE, through the Senior CE (SrCe), notifies the appropriate point of contact at NIOSH via e-mail to return dose reconstruction analysis records. The SrCE then prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) for inclusion in the case file. In addition, the CE must write a letter to the claimant to advise that the case file has been withdrawn from NIOSH for evaluation under the SEC provision.
Once a case file is returned from NIOSH (including those cases that DEEOIC has withdrawn from NIOSH) to the district office for potential inclusion in the SEC class, the CE enters status code “NW” (NIOSH, returned without a dose reconstruction) in ECMS B. The status effective date for the code entry is September 15, 2008. However, the CE does not enter the status code until the DEEOIC office actually receives the NIOSH-returned dose reconstruction record. Although this class in the SEC becomes effective on September 14, 2008, because that is a Sunday, the Bulletin effective date is September 15, 2008. It is the Bulletin date that forms the basis for the ECMS status effective date coding, September 15, 2008.
If the case is still at NIOSH and does not qualify under this SEC provision, based on the guidance provided in this bulletin, then refer to instructions in Action #13.
3. For any cases identified as having a potential for compensability based on the new SEC class, the responsible CE is to review all relevant documentation contained in the case file, including any documentation that NIOSH may have acquired or generated during the dose reconstruction process.
4. Based on this review, the CE determines whether the employee has a specified cancer, as listed in the Federal (EEOICPA) Procedure Manual (PM) Chapter 2-600.5. If the employee has a specified cancer, proceed to Action #5. If the employee does not have a specified cancer, proceed to Action #7.
5. If the employee has a specified cancer, the CE must determine if the worker was employed at least 250 work days in any area at the Spencer Chemical Company/Jayhawk Works near Pittsburg, Kansas from January 1, 1956 through December 31, 1961.
6. Once the CE has determined the employee has a diagnosed specified cancer and meets the employment criteria of the SEC class, the CE proceeds in the usual manner for a compensable SEC claim and prepares a recommended decision.
ECMS Coding Reminder: The “SE” (Confirmed as SEC Claim) status code must be entered into ECMS B with a status effective date equal to the status effective date of the recommended decision to approve. (This is a change from previous guidance which tied the “SE” effective date to when the employment and medical criteria for SEC has been met). The SEC site code for “Spencer Chemical Company/Jayhawk Works” must be selected from the drop down menu under the “SEC/SEC Desc” field on the claim screen in ECMS B only.
For all claims where Spencer Chemical Company/Jayhawk Works employment is claimed, regardless of whether the SEC criterion is met, the SEC site code must be entered under the “SEC/SEC Desc” field on the claim screen. The SEC site code for Spencer Chemical Company/Jayhawk Works is “55”.
7. As discussed earlier, the Secretary of Health and Human Services determined that it is not feasible for NIOSH to perform complete dose reconstructions for the class of employees who worked at Spencer Chemical Company/Jayhawk Works from January 1, 1956 through December 31, 1961.
NIOSH has indicated that partial dose reconstructions are possible based on occupational medical dose and some components of the internal dose. Accordingly, for cases that had not been submitted to NIOSH and do not meet the criteria of the SEC class, the CE must refer these cases to NIOSH with a NIOSH Referral Summary Document (NRSD) to perform dose reconstructions. The CE enters status code “NI” (Sent to NIOSH) in ECMS B. The status effective date is the date of the Senior or Supervisory CE signature on the NRSD.
For those cases which were previously submitted to NIOSH for dose reconstruction and which were returned to the district office for consideration for inclusion in this SEC class, a new NRSD is not required. If it is determined that the case does not qualify for the SEC class, the CE, through the Senior CE (SrCe), notifies the appropriate point of contact at NIOSH via e-mail to proceed with the dose reconstruction. The SrCE then prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) for inclusion in the case file. The CE enters status code “NI” (Sent to NIOSH) into ECMS B, effective the date of the e-mail requesting NIOSH to proceed with dose reconstruction. The e-mail should include a brief statement of why the case should proceed with dose reconstruction, e.g., non-specified cancer, insufficient latency period or does not meet the 250 work day requirement. In addition, the CE is to notify the claimant by letter that the case is returned to NIOSH for dose reconstruction and the reason(s) it does not qualify for the SEC class.
Upon receipt of the dose reconstruction report, the CE proceeds in the usual manner and prepares a recommended decision. The CE enters status code “NR” (NIOSH Dose Reconstruction Received) in ECMS B and selects the “PD” (Partial Dose Reconstruction) reason code. The status effective date is the date the dose reconstruction is date-stamped into the District Office. The CE should not delete the “NW” (NIOSH, returned without a dose reconstruction) or “NI” (Sent to NIOSH) code already present in ECMS.
8. If the claim meets the SEC employment criteria and includes both a specified cancer and a non-specified cancer, medical benefits are only paid for the specified cancer(s), any non-specified cancer(s) that has a dose reconstruction that resulted in a probability of causation of 50 percent or greater, and any secondary cancers that are metastases of a compensable cancer. In these instances, the CE drafts a recommended decision to accept the claim for the specified cancer (provided all criteria are met) and if necessary concurrently prepares a NRSD to NIOSH for a dose reconstruction for the non-specified cancer to determine eligibility for medical benefits. The CE enters status code “SE” (Confirmed as SEC Claim) and the “NI” (Sent to NIOSH) code into ECMS B. The status effective date for the “SE” code is the date of the recommended decision to accept the specified cancer. The status effective date for the “NI” code is the date of the Senior or Supervisory CE signature on the NRSD. Since Spencer Chemical is an Atomic Weapons Employer, there is no Part E coding associated with this additional class in the SEC.
9. If there is a final decision to deny based on a POC of less than 50% and a review of the evidence of record establishes likely inclusion in the SEC class, it will need to be reopened. In the exercise of the Director’s discretion of the reopening process, the Director is delegating limited authority to the four District Directors to sign Director’s Orders for reopening. This delegated authority is limited to reopenings based upon evidence that a Spencer Chemical Company/Jayhawk Works employee meets the criteria for placement into the Spencer Chemical Company/Jayhawk Works SEC class as defined by this bulletin. This delegated authority extends to any case potentially affected by this SEC class. However, if the District Director is unsure of whether the SEC is applicable to the case, the case should be referred to the National Office. A sample Director’s Order is provided in Attachment 3. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated. Once a Director’s Order is issued, the district office is responsible for issuing a new recommended decision.
10. For those cases which are reopened under the authority granted in this Bulletin, the District Director enters status code “MN” (NO Initiates Review for Reopening) in ECMS B with a status effective date as the effective date of this bulletin.
For all reopenings per this bulletin, upon completing the Director’s Order to reopen the claim, the District Director (DD) enters status code “MD” (Claim Reopened – File Returned to DO) into ECMS B to reflect that the case has been reopened and is in the district office’s jurisdiction. (The “MZ” status code is not necessary). The status effective date of the “MD” code is the date of the Director’s Order.
Please note that while the “MD” code is generally input by National Office staff, entry of this code has been delegated to the District Director, just as the authority to grant reopenings has been in this specific circumstance.
11. Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending Spencer Chemical Company/Jayhawk Works cases that have a recommended decision to deny. All cases on the comprehensive list identified in action item 2 that are located at a FAB office must be reviewed for possible inclusion in the SEC class. If the employee worked at the Spencer Chemical Company/Jayhawk Works during the time specified, has a specified cancer, and meets the 250 work day requirement, the FAB is to reverse the district office’s recommended decision to deny and accept the case. The CE/HR enters status code “F6” (FAB Reversed to Accept) into ECMS B to reflect the FAB reversal with a status effective date equal to the date of the final decision to approve. The CE/HR enters status code “SE” (Confirmed as SEC Claim) into ECMS B with a status effective date equal to the date of the final decision to approve.
If no action is required, FAB must follow the instructions specified in action item 13, below, to indicate that a review of the case was completed.
Every effort should be taken to avoid a remand of a potential SEC claim to the District Office. If FAB determines that the case cannot be approved based on the new SEC designation and that re-referral to NIOSH is appropriate (see action items 5 and 7) the HR must remand the case for district office action. The CE/HR enters status code “F7” (FAB Remanded) with “OTH” (No DO Error – Other) as the reason code. If the Part B decision is being remanded, the CE/HR enters the remand code into ECMS B with a status effective date of the date of the remand.
12. The operational plan goal for the list of cases identified for review as part of this new SEC class is to complete the Part B recommended decision, return to NIOSH, or determine that no action is necessary within 45 days of the date of this bulletin for at least 50% of the cases, and within 90 days for 95% of the cases. All cases requiring action due to this bulletin should be completed within 120 days.
13. All cases on the DEEOIC generated list must be reviewed to determine if it qualifies under the SEC provision including cases still at NIOSH. If after review or further development, the CE/HR determines that a case on the list does not require any action to be taken (either a new recommended decision to accept based on the SEC, or return to NIOSH, or a FAB reversal or remand) the CE/FAB HR must write a brief memo to the file that explains the case was reviewed under this bulletin, no additional action is necessary, and why. A case classified as not requiring any action is a case that does not meet the SEC criteria or there is no need to return it to NIOSH for partial dose reconstruction.
The CE must then code “NA” (No Action Necessary) and then select the appropriate reason code from the reason code drop down list. The “NA” coding is specifically tied to the SEC review list generated by DEEOIC and the “NA” code is restricted to ECMS B only because the SEC review list is derived from Part B data. For Spencer Chemical Company/Jayhawk Works cases that were reviewed under this bulletin and require no additional action, the reason code that must be selected is “842” (Reviewed under Bulletin 08-42, Spencer Chemical Company/Jayhawk Works SEC) and be coded into ECMS B only. The status effective date of the “NA” code is the date of the memo to the file stating review is complete and the CE has determined there is no further action necessary. For those instances in which further development is necessary, the “NA-842” code is not entered initially. The “NA-842” code is only entered when the CE determines after development that the case does not meet the SEC criteria or there is no need to return it to NIOSH for partial dose reconstruction. For those cases on the DEEOIC list that were not withdrawn from NIOSH, the CE enters the “NA-842” code only after the CE determines that the case does not meet the SEC criteria. These cases remain at NIOSH for completion of a partial dose reconstruction.
Please note that if the CE discovers that the claimant(s) is/are deceased, the CE must still enter the “NA-842” code in addition to the closure code. The status effective date for the “NA” coding is the date of the memorandum to file.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
RACHEL P. LEITON
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, and District Office Mail & File Sections.