Issue Date: May 5, 2010
Effective Date: May 5, 2010
Expiration Date: May 5, 2011
Subject: Nevada Test Site SEC Class for January 1, 1963 through December 31, 1992
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 the Nevada Test Site (NTS) 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 March 5, 2010, 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 the NTS.
On April 5, 2010, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress:
All employees of the Department of Energy, its predecessor agencies, and its contractors and subcontractors who worked at the Nevada Test Site, from January 1, 1963 through December 31, 1992, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days 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. Although Congress had the authority to reject the recommendation within a 30-day time frame, Congress took no action. Therefore, the SEC designation for this class became effective as of May 5, 2010, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in the report to Congress.
NIOSH has determined that there is insufficient information either to estimate the maximum radiation dose for every type of cancer for which radiation doses are reconstructed that could have been incurred under plausible circumstances by any member of the class, or to estimate the radiation doses of members of the class more precisely than a maximum dose estimate. Specifically, internal dose cannot be estimated.
A previous SEC class pertaining to the NTS, encompassing the period between January 27, 1951 and December 31, 1962, was the subject of Bulletin 06-16. The new NTS SEC class described in this Bulletin is not meant to replace the prior class, but is an addition to the prior NTS SEC class.
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 April 5, 2010 letter to Congress from the Secretary of HHS in which Secretary Sebelius makes the designation.
Purpose: To provide procedures for processing SEC class claims for workers at the NTS.
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 NTS 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.
3. The district offices are to use the comprehensive list as the basis for an initial screening of cases associated with this Bulletin. The purpose of the screening is to make an initial determination on whether a case is likely to meet the criteria for inclusion in the SEC. A screening worksheet is included as Attachment 2. The worksheet must be completed for all cases on the comprehensive list. Upon completion, the worksheet is to be included in the case file. Based upon the initial screening, the cases on the list will be grouped into three categories: those likely to be included in the SEC class; those not likely to be included in the SEC class; and those for which development may be needed to determine whether the case can be accepted into the new SEC class. Claim status codes have been created in ECMS to reflect each of these categories: ISL (Initial SEC Screening, Likely SEC) for those likely to be included in the SEC class; ISU (Initial SEC Screening, Unlikely SEC) for those unlikely to be included in the class; and ISD (Initial SEC Screening, Development Needed) for which development may be needed in order to reach a determination on SEC class inclusion. A reason code corresponding to the SEC class status screening code has also been created, in this instance, 013 (Reviewed under 10-13, Nevada Test Site SEC). Once the worksheet is completed, the Claims Examiner (CE) is to select the appropriate claim status code and associated reason code from the drop down lists in ECMS B only. The status effective date for the ISL, ISU and ISD codes is to correspond with the completion date of the screening worksheet.
The purpose of this initial screening is to assist the district offices in prioritizing claims poised for acceptance. Once screening and prioritization is complete, claims adjudication proceeds in the usual manner. No matter the outcome of the screening protocol, each case must be evaluated formally for SEC inclusion and the decision recorded in ECMS. The initial screening step is only applicable to cases on the comprehensive list. It is not applicable to new claims submitted after the list is generated. These claims will be evaluated for inclusion in the SEC class in the general course of processing.
4. For cases on the comprehensive list at FAB, the designated CE2 Unit is to conduct the initial screening, complete the worksheet and enter related coding.
5. The comprehensive list 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 should contain 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 NTS claimants is included as Attachment 3. The CE must print out a hard copy of the NIOSH letter for inclusion in the case file.
Once a case file is returned from NIOSH (including 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 “NW” code entry is May 5, 2010. However, the CE does not enter the status code until the DEEOIC office actually receives the NIOSH-returned dose reconstruction record. The standard procedure for NIOSH coding in ECMS E is to code all additional NIOSH actions only if the “NI” (Sent to NIOSH) status code has been entered. Therefore, the CE enters the “NW” code into ECMS E with the status effective date of May 5, 2010, only if “NI” has already been entered in ECMS E.
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 the 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. The CE is to enter the status code “NW” with a status effective date of May 5, 2010. In addition, the CE must write a letter to the claimant advising that the case file has been withdrawn from NIOSH for evaluation under the SEC provision.
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 #15.
6. 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.
7. Based on this review, the CE determines whether the employee has a specified cancer, as listed in the EEOICPA Procedure Manual Chapter 2-0600.7. If the employee has a specified cancer, proceed to Action #8. If the employee does not have a specified cancer, proceed to Action #10.
8. If the employee has a specified cancer, the CE must determine if the worker was employed at least 250 workdays at the NTS between January 1, 1963 and December 31, 1992.
The NTS has served as the Nation’s primary continental site for the testing of nuclear devices. The NTS currently encompasses approximately 1,375 square miles. NTS was the primary location for the testing of nuclear explosives in the continental United States between 1951 and 1992. Nuclear testing at or above ground surface included atmospheric testing, earth-cratering experiments, and open-air nuclear reactor and rocket testing; which were the subject of the prior NTS SEC class. In 1963, the United States signed the Limited Test Ban Treaty, which effectively sent the testing of nuclear weapons below ground. This period of underground testing is the subject of the new SEC class described in this Bulletin.
As per EEOICPA Circular No. 08-06, NTS includes Area 51 for the period 1958 through 1999. Refer to Circular 08-06 for additional details on Area 51 coverage. NTS does not, however, include the Yucca Mountain Site Characterization Project, as this is a separate DOE facility adjacent to the NTS.
Please note that, as was the case for the prior NTS SEC class, the 250 work day calculation includes any time spent at the NTS, including time spent working or living at the test site. For example, there were employees who lived in the town of Mercury within the NTS during the SEC time period. If the employee was present (either worked or lived) on site at the NTS for a 24-hour period in a day, the CE would credit the employee with the equivalent of three (8-hour) work days. If there is evidence that the employee was present on site at the NTS for 24 hours in a day for 83 days, the employee would have the equivalent of 250 work days and would meet the 250 work day requirement.
Once 250 days of NTS employment during the class period are established, the CE or hearing representative can accept that the employment component of the SEC class is satisfied. In these cases, the CE proceeds to Action #9.
If the employee does not have 250 workdays at the NTS, the CE must review the file to determine if additional days in the SEC can be found by combining days from employment meeting the criteria for other classes in the SEC and aggregating them together to meet the 250-workday requirement. If the 250 workday requirement is not satisfied, the CE proceeds to #10.
9. 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.
If it is determined that the case does qualify for the SEC class, the CE, through the SrCE, notifies the appropriate point of contact at NIOSH via e-mail, so that NIOSH can close out their file. 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.
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. If the case is a B/E case, and the basis for the Part E acceptance is the Part B SEC acceptance, the “SE” code must also be entered into ECMS E with a status effective date of the recommended decision to approve under Part E.
For all claims where NTS employment is claimed, regardless of whether the SEC criteria are met, the SEC site code “NTS” (033) must be selected under the “SEC/SEC Desc” field on the claim screen.
10. Although NIOSH determined that it is not feasible for NIOSH to perform complete dose reconstructions for this class of employees, NIOSH has indicated that partial dose reconstructions are possible. Accordingly, for cases that have 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” in ECMS B. The status effective date is the date of the Senior or Supervisory CE signature on the NRSD. If the case is a B/E case, the “NI” code is not entered into ECMS E until non-radiological toxic exposure development is complete.
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 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” into ECMS B, with a status effective date equal to 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‑workday requirement. In addition, the CE is to notify the claimant by letter that the case is returned to NIOSH for a dose reconstruction and the reason(s) it does not qualify for the SEC class. The CE is to send a copy of this letter to NIOSH. If the case is a B/E case, and toxic exposure development was completed with a memorandum to the file (with a prior “NI”/”NW” code), the CE enters status code “NI” into ECMS E with the status effective date of the e-mail requesting NIOSH to proceed with dose reconstruction.
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 reason code of “PD” (Partial Dose Reconstruction). The status effective date is the date the dose reconstruction report is date-stamped into the district office. The CE should not delete the “NW” or “NI” codes already present in ECMS. If the CE had previously entered “NI” in ECMS E, the CE also enters codes “NR” and “PD” in ECMS E. If the case is a B/E case, the CE enters the Probability of Causation (PoC) into ECMS B and ECMS E (regardless of whether the “NI” code had previously been entered).
11. 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 resulting in a PoC of 50% 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 any cancers for which there is a POC of 50% or greater. The CE enters status code “SE” into ECMS B. The status effective date for the “SE” code is the date of the recommended decision to accept the specified cancer. If the case is a B/E case, and the basis for the Part E acceptance is the Part B SEC acceptance, the “SE” code must also be entered into ECMS E with a status effective date of the recommended decision to approve under Part E.
If necessary, the CE concurrently prepares a NRSD to NIOSH for a dose reconstruction for any non-specified cancer(s) to determine eligibility for medical benefits. The CE enters status code “NI” into ECMS B. The status effective date for the “NI” code is the date of the Senior or Supervisory CE signature on the NRSD. If the case is a B/E case, the CE enters status code “NI” in ECMS E only after the non-radiological toxic exposure development is complete and the CE cannot accept causation. In that case the CE creates a memorandum to file stating that toxic exposure development is complete, and enters status code “NI” in ECMS E with the date of the memorandum as the status effective date.
12. If a claim has 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, the case is reopened. In the exercise of the DEEOIC Director’s discretion in the reopening process, the Director is delegating limited authority to the four District Directors (DDs) and the Assistant District Directors (ADDs), at the discretion of the DD, to sign Director’s Orders for reopening of these cases. This delegated authority is limited to reopenings based upon evidence that a NTS employee meets the criteria for placement into the SEC class as defined by this Bulletin. This delegated authority extends to any case potentially affected by this SEC class. However, if the DD 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 4. The DEEOIC 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.
13. For those cases reopened under the authority granted in this Bulletin, the DD or ADD enters status code “MN” (NO Initiates Review for Reopening) in ECMS B with a status effective date equal to the effective date of this Bulletin. If the DD or ADD is also reopening Part E, the “MN” code is also entered into EMCS E. For all reopenings per this Bulletin, upon completing the Director’s Order to reopen the claim, the DD or ADD enters status code “MD” (Claim Reopened – File Returned to DO) into ECMS B/E (as appropriate) to reflect that the case has been reopened and is in the district office’s jurisdiction. (The “MZ” status code, receipt of Director’s Order in the DO or FAB, 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 DD or ADD, just as the authority to grant reopenings has been delegated in this specific circumstance.
14. Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending NTS cases that have a recommended decision to deny. All cases on the comprehensive list identified in Action #2 that are located at a FAB office must be reviewed for possible inclusion in the SEC class. If the employee worked at the NTS during the time period specified, has a specified cancer, and meets the 250-workday requirement, the FAB is to reverse the district office’s recommended decision to deny, and accept the case. The CE or FAB staff member enters status code “F6” (FAB Reversed to Accept) with the appropriate reason code into ECMS B/E (as appropriate) to reflect the FAB reversal with a status effective date equal to the date of the final decision to accept. The CE or FAB staff member also enters status code “SE” in ECMS B/E (as appropriate) with a status effective date equal to the date of the final decision to accept.
For all claims where NTS employment is claimed, regardless of whether the SEC criteria are met, the SEC site code “033” must be selected under the “SEC/SEC Desc” field on the claim screen.
If no action is required, FAB must follow the instructions specified in Action #15, 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 accepted based on the new SEC designation and that re-referral to NIOSH is appropriate (see Action #10), the CE or FAB staff member remands the case for district office action. The CE or FAB staff member enters status code “F7” (FAB Remanded) with “OTH” (No DO Error – Other) as the reason code in ECMS B/E (as appropriate), with a status effective date equal to the date of the remand.
15. If, after review or further development, the CE or FAB staff member determines that a case on the list does not require any action, the CE or FAB staff member must write a brief memo to the file indicating that the file was reviewed and note the reason why no additional action is necessary. A case classified as not requiring any action is a case that does not meet the SEC criteria, and there is no need to return it to NIOSH for partial dose reconstruction.
The CE must then code “NA” (No Action Necessary) and select the appropriate reason code from the reason code drop down list. Since the “NA” coding is specifically tied to the SEC review list generated by DEEOIC, the “NA” code is restricted to ECMS B. This is because the SEC review list is derived from Part B data. For NTS cases that were reviewed under this Bulletin and require no additional action, the reason code that must be selected is 013 (Reviewed under 10-13, Nevada Test Site SEC class) and be coded into ECMS B only, even if the case is a B/E case. The status effective date of the “NA” code is the date of the memo to the file stating the 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-013” code is not entered initially. The “NA-013” 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-013” 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-013” 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 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, Resource Centers and District Office Mail & File Sections.