Question - How has DEEOIC defined the Part E causation standard, whether "it is at least as likely as not that exposure to a toxic substance at a Department of Energy facility was a significant factor in aggravating, contributing to, or causing the death of such employee.”?"
Under Part E, where this standard applies, DEEOIC has many procedural presumptions. These are shortcuts to accepting cases under this standard. These presumptions can be found in the Federal (EEOICPA) Procedure Manual Exhibit 15-4, “Exposure and Causation Presumptions with Development Guidance for Certain Conditions.” As you can see, for each diagnosis and exposure, the presumptions differ because the medical and scientific basis for the links between toxin(s) and disease differ. Under Part B for radiogenic cancer claims, the causation standard is a 50% or greater probability that the cancer was the result of the radiological exposure experienced on the premises of a DOE facility or an AWE facility. Acceptances of claims filed by DOE contractor employees under B are automatically accepted for causation under Part E. In cases in which the diagnosis is neither a radiogenic cancer nor one of the many diagnoses for which there is a presumption, these require a well-rationalized medical opinion. To be accepted, these medical opinions should be based upon detailed and accurate information about the work performed by the employee at the facility and its associated exposures, and provide a well-rationalized explanation of how these exposures were “at least as likely as not” a “significant factor in aggravating, contributing to, or causing” the claimed illness. For more details on what it means to be well-rationalized, please refer to the Federal (EEOICPA) Procedure Manual, Chapter 15.13.
Question - Will the Director of OWCP put into place an administrative review, utilizing Administrative Law Judges instead of the current Final Adjudication Hearings and Decision process, for claimants who challenge the policies, procedures, or recommended decisions, which the requestor believes is required under the Administrative Procedures Act?
There is no requirement in the APA that mandates the sort of “administrative review” contemplated in this question. Under the APA, claimants dissatisfied with a final decision on a claim can seek judicial review of any “policies/procedures” that were used or applied in the development and adjudication of that claim in an appropriate U.S. District Court.
Regulations which guide the administration of EEOICPA provide the framework for the adjudication of claims under the Act. The idea of having some form of "administrative review" of EEOICPA claims outside of the DEEOIC has been rejected by DOL for several reasons. First, there is no congressional requirement for this type of review of EEOICPA claims. Moreover, this type of external review would make the claims process adversarial, slow the end-to-end claims process because an administrative review body would not be able to move as quickly as DEEOIC on adjudication of claims, and finally, slow a claimant's ability to get Federal District Court review of an unfavorable DEEOIC decision as courts would require claimants to exhaust their administrative remedies before seeking judicial review. The Division's adjudication processes, as they stand now, are based on properly promulgated regulations and are entirely consistent with the EEOICPA and pertinent federal laws.
There are several mechanisms by which a claimant can challenge decision outcomes throughout the adjudication process. The regulations governing the administration of EEOICPA at 20 C.F.R. § 30.310 allows a claimant to object, in writing, to all or part of a recommended decision within 60 calendar days from the date the decision is issued. Pursuant to 20 C.F.R. § 30.314, the claimant may also request a hearing within the 60-day time period; otherwise, the objections are responded to by a review of the written record, pursuant to 20 C.F.R. § 30.312. Whether or not an objection is filed, the Final Adjudication Branch (FAB) reviews all recommended decisions, all arguments, and all evidence of record, and based upon this independent review, issues a final decision pursuant to 20 C.F.R. § 30.316, or a Remand Order returning the case to the district office for additional development, pursuant to 20 C.F.R. § 30.317. A claimant may seek review of a final decision by filing a request for reconsideration, pursuant to 20 C.F.R. § 30.319. Finally, the regulations allow a claimant or a claimant’s duly appointed Authorized Representative, at any time after the FAB has issued a final decision, to file a written request seeking reopening of a final decision under the EEOICPA, pursuant to 20 C.F.R. § 30.320(b).
Question - What are (is) the definition of "terminal" status for a given claim? Why are terminal cases handled differently from District to District and Claims Examiner to Claims Examiner?
The Division of Energy Employees Illness Compensation (DEEOIC) defines the terminal status of a claimant as being at the end stage of a disease or illness. Medical evidence is the key factor in determining if a claimant’s case should be flagged as terminal. Medical evidence for consideration would normally include a report or signed statement from a physician stating that the claimant is at the end stage of an illness. Examples of additional indicators for terminal consideration would include requests for hospice care, telephone calls or letters from congressional offices, authorized representatives, family members, or medical providers, regarding the claimant’s medical status.
DEEOIC has developed written guidance instructing claims staff to expedite the handling of claims, at every step of the process, once a determination is made that a case is “Terminal.” However, no two cases are the same and the length of time required to complete the adjudication of any case varies. Upon completion of adjudication and an award of compensation, DEEOIC has a process for the immediate payment of compensation benefits which often results in payment within hours of its receipt of payment documents. This can shorten the normal payment process by a week or more and DEEOIC has many success stories of expedited payments that have been completed to terminally ill claimants.
Question - The stakeholders are not happy with the proposed rule change published in 2015 as evidenced by the number of public comments. Will OWCP consider withdrawing those rules and enter into a negotiated rule process with the stakeholders?
The public had an opportunity to provide official comment to proposed rules. DOL will consider all comments received during the comment period, before any decision is made to finalize the propose rules.
Question - Every new medicine is not part of a treatment suite and must go through a long, arduous process of being approved. Doctors must write letters to be sent to PO Box in Kentucky. These go to the Claims Examiner, who must then find the denial in a database from the pharmacy where the denial took place. This is extremely cumbersome if the pharmacy is a busy one and you can't remember the date the denial took place. The CE bundles all of the information and sends it to DOL/HQ for evaluation. One claimant has been waiting for 2 months for one medicine. Part of the problem is that one of the covered conditions is an "orphan disease" meaning that is extremely rare and there is no cure and no research going on for it. So, treatments and medicines are few and far between. Medicines are usually only trying to stop the progression of the disease. It still needs to go forward. How can DEEOIC streamline this process and get the sick workers the medication prescribed by their physicians in a timely and less complicated manner?
New medications are added to our systems once FDA approvals are given approving treatment for specific conditions. Any non-FDA approved uses must be approved by the DEEOIC medical director. As long as we have the necessary medical rationale and supporting documentation related to the accepted condition(s) as necessary we can typically approve denied medications in less than 48 hours. We will continue to work the field offices to ensure we get requests timely so they can be addressed in an expeditious manner.
Question - Please provide a full explanation of the redistribution of FAB claims to the other FABs.
The role of the Final Adjudication Branch (FAB) is to review recommended decisions from the various District Offices and either affirm the conclusions, remand the claim for additional consideration, or reverse a denial in order to accept.
The FAB is a single branch. While staff are located in five different offices, they perform the same work and are knowledgeable in all aspects of adjudication.
In April 2018, the FAB improved the assignment process. Previously, a District Office would send their recommended decisions to either their corresponding FAB office (located in the same building) or the D.C. office (which had no corresponding District Office), based on the last two digits of the case number. There was no way to predict the number of decisions issued by any particular District Office. Furthermore, relying on the last two digits did not ensure an equal breakdown of cases. Both these issues sometimes resulted in disproportionate assignment of cases to some offices—which in turn resulted in a slowdown in the issuance of decisions. In addition, the breakdown needed continual tweaking.
With the improved process, as District Offices issue recommended decisions, they advise a centralized hub. This hub compiles a list of the recommended decisions and assigns them daily through an automated system.
The new process is:
1) Measurable: we know immediately how many decisions each District Office issues and how many each FAB office is receiving.
2) Stable: there is little need to tweak the system.
3) Random: the decisions are distributed without review or management intervention, ensuring that all FAB offices have an equal chance of receiving both complicated and streamlined recommended decisions.
4) Equitable: decisions are distributed fairly, based on the number of decision-writers in each office.
5) Nimble: we can adjust case flow as staffing levels in particular offices fluctuate.
Question - Recently we’ve been hearing that the FAB is discouraging in-person hearings. The advocates believe this is an important venue for the claimant when objecting to a recommended decision to deny. Please provide an explanation to this shift from the regulations.
In April, 2018, a new claims assignment process was initiated for FAB’s incoming claims that included a reorganization of the hearing process. In short, hearing representatives were given full power and authority to reach out to both claimants and their Authorized Representatives to determine the time and location of the hearing, as well as the format of that hearing – be that in-person, by telephone, or by video. Where an in-person hearing cannot be mutually agreed to, and this typically because of scheduling conflicts among the parties, the hearing representative tries to schedule a video or telephone hearing; where that is not possible, a Review of the Written record occurs by default – a rare, but comprehensive process that allows for any and all evidence to be submitted for review prior to the issuance of a final decision.
FAB management has no position on hearings and hearings by type and has issued no instructions to staff to in any way restrict in-person events, and FAB readily acknowledges the claimant’s right to a hearing. FAB management does, however, recognize that alternatives to in-person hearings are highly effective in giving each claimant his or her voice. Regardless of how evidence is submitted, the total written record drives every final decision. In terms of time, expense, logistics, and final outcomes for all involved, FAB’s telephone and video hearings simply represent two user-friendly options for claimants in pursuit of a timely and accurate final decision. An in-person hearing has been and remains another option in every claim.
Question - The advocates are aware of an increasing number of problems with the white card. We have heard that medical providers will no longer accept the white card because there is a delay of payment or a bill is rejected. What is DEEOIC doing to correct this problem?
If DEEOIC is made aware of a claimant having problems using their Medical Benefit Identification Cards we try everything within our purview to assist. This includes outreach to the provider, if requested by the claimant, to try and resolve any issues or clear up any discrepancies. The central bill processing (CBP) agent is required to process bills within 30 days of submission of a properly completed bill, and as long as the services are related to an accepted condition and any preauthorization requirements are met, the services are paid. We routinely monitor the timeliness of processed bills and there is no evidence of recurring delays beyond this 30 day requirement.
Question - Has DEEOIC or Conduent analyzed the billing process, denials and efficiencies, assessed "Root Causes", wasted or duplicate time and resource expended, and then taken any actions to mitigate?
DEEOIC routinely conducts audits of the central bill processing system to independently analyze and appraise the process, as authorized under the current contract. Any errors are immediately addressed, and often lead to new procedures or processes to improve overall performance and efficiency.
Question - There are significant issues with recruiting, servicing and "On-Boarding" new medical providers; many medical practices look into this and decide against as there is no help - Who is responsible for outreach and development? Are there appropriate resources and investment in these areas?
Medical providers may obtain enrollment and billing information by calling the medical bill processing agent toll-free at (866) 272-2682 or one of the Resource Centers. Resource Centers assist providers with enrollment inquires, and at the request of a claimant will also reach out to non-enrolled providers to share information about the program in an effort to encourage enrollment. Resource Center staff can provide assistance in person or over the telephone.
Question - Will DEEOIC consider creating an opportunity for claimants or their authorized representatives to rebut toxicologist, industrial hygienist or contract medical consultant reports before a recommended decision to deny is issued?
Claimants have the opportunity to object and rebut a recommended decision that is based on the report of a toxicologist, industrial hygienist or contract medical consultant before a Final Decision is issued, and the recommended decision is where a claims examiner evaluates those reports. There is no prior step in the adjudication process where it would be feasible to provide a claims examiner’s evaluation prior to issuance of the recommended decision. There is no bar on claimants providing evidence to rebut the rationalization and/or conclusions of any of these professionals. In addition, claimants may ask for a copy of any report or a copy of their case files at any time. DEEOIC already encourages claimants to work with their personal physicians and our procedures require that all submitted evidence be considered, including that which may tend to contradict an in-house expert, though only evidence that is both reasonable and well-rationalized can be given substantial probative weight.
Question - Will DEEOIC consider publishing the number of worker versus survivor claims by site and state? This information is vital to explain the size of the populations who are eligible to receive medical benefits. Related to above, will DEEOIC consider publishing the number of claimants that have received medical benefits at each covered EEOICPA AWE and DOE site?
We will consider any suggestions on additional statistics that need to be published, but we do currently provide statistics for approvals and denials by case and claim level by site and by state on our website. We also provide information on the total dollar disbursements of medical bills that have been paid by Part type, by state, and by worksite.
Question - Dr. Lynette Stokes has been the DEEOIC toxicologist for approximately 10 years. We do not question her credentials as a toxicologist but we do question her specialty of pediatric toxicology as being the appropriate specialty when offering opinions on occupational exposure for nuclear weapons workers. This would be akin to a podiatrist offering an opinion on lung cancer. Will OWCP consider recruiting a toxicologist whose specialty is more in line with the population?
Dr. Lynette Stokes, the DEEOIC toxicologist, started her career at the National Institutes of Health investigating occupational and environmental risk factors for Parkinson's disease during two summer fellowships. Additionally, she also designed and conducted an investigation of kidney cancer to determine whether leather and textile industry work increased the risk of developing the disorder using cancer registry data from the Massachusetts Department of Public Health in Boston, MA. Other examples of the experience she brings to the DEEOIC include an investigation of the neurotoxic effects on the peripheral nervous system among pesticide applicators while training at the New York State Health Department, Bureau of Environmental & Occupational Epidemiology, in Albany, New York. In addition, she has reviewed and conducted intramural research at the Centers for Disease Control and Prevention investigating the long term health effects of lead exposure using a neurobehavioral test battery developed at the Mt. Sinai Medical Center. The DEEOIC toxicologist reviewed scientific questions for the National Academy of Sciences while participating on their committees investigating personal protective equipment and the health effects of perchlorate exposure. Dr. Stokes is very well qualified to evaluate DEEOIC claim matters involving toxicological causation issues.
The DEEOIC is also looking into contracting with an additional toxicologist to provide backup services when necessary.
Question - How has DEEOIC defined "proprietary interest"?
Determinations regarding a proprietary interest of DOE arise on those infrequent occasions when a new designation of a DOE facility is being considered. In such circumstances, DEEOIC considers all evidence provided, with a particular focus on evidence that DOE owned the building, structure or premises, such as a deed or affirmative statement from DOE acknowledging ownership. Proprietary interest can also include instances in which DOE is permitted a sufficient level of use and control over the property by the owner or lessee of the property to support a determination that the property constituted a DOE facility. DOE ownership of intellectual property or equipment, regardless of size, does not fulfill the proprietary interest definition. Moreover, DOE permitting, safety oversight, or licensing of work relating to use of radioactive material does not convey propriety interest.
Question - The Advocacy group, Southern Illinois Nuclear Workers (SINEW) is aware of a number of adjudicated DOL claims where the POC is above the 50% compensation limit, but the claim is denied based on "NO KNOWN SURVIVOR." In one instance the names of 12 such deceased worker claimants were provided to advocates. By first search for survivors in online obituaries, an easy and efficient and obvious tactic, advocates were able to identify six of the 12 claims who had eligible survivor claimants, and (b) who filed survivor claims with DOL and were compensated.
Where the SINEW advocacy group is aware of a potentially eligible survivor(s) for an adjudicated DOL claim where the Probability of Causation is above 50% and the claim is denied because there is no known survivor, that information should be provided to the Department of Labor/National Office Policy Branch, at the following address, as soon as possible:
DOL DEEOIC Central Mail Room Correspondence
P.O. Box 8306
London, KY 40742-8306
The Policy Branch will forward the information to the appropriate district office or Final Adjudication Branch for further development.
DEEOIC is not tasked with conducting searches for potentially eligible survivors during claim adjudication. However, in prior cases of this type, DEEOIC has received invaluable assistance from advocates who have been diligent in conducting appropriate research and providing our office with pertinent results. DEEOIC relies on its claimants to provide the relevant documentation needed for claim adjudication. However, we have found that in cases where an advocate is able to provide documentation, claim adjudication often results in a positive outcome.
Question - Is DEEOIC willing to reconsider their protocol for establishing "no known survivor claims" to include routine DOL/DEEOIC obituary survivor searches? Also, would DOL/DEEOIC consider publishing site-specific "no known survivor, otherwise compensable" claims statistics? Would DOL/DEEOIC also consider publishing the number (OR PERCENT) of COMPENSATED claims by workers and survivors statistics at each covered site? I am certain that adopting these simple steps would increase and expedite the number of claims and cases paid.
We do solicit claims where we are aware of potential survivors and do develop for information if it is suspected a potential survivor is deceased. However, we do rely on claimants to provide supporting evidence for their claims as well. As far as publishing “no known survivor, otherwise compensable” claims, it appears you are asking us to adjudicate claims where there is no known survivor. That would take resources away from the development of claims with living employees and survivors. As far as publishing the number of compensated claims by workers and survivors statistics at each cover site, it is unclear how publishing such data would increase or expedite the number of claims and cases paid. There is a large amount of statistical information available on the website currently. There is information on the numbers of approved and denied cases and claims by Part type, by state, and by worksite.
Question - Why does it take so much documentation to process a claim under the EEOICPA?
The law provides the framework for the establishment of a compensable claim including criteria for the meeting particular employment and medical criteria. It is the role of the Division of Energy Employees Occupational Illness (DEEOIC) to collect the information necessary to accept a claim given the requirements of the law. DEEOIC will oftentimes seek evidence from numerous sources to ensure that the most complete set of records is available for review. While the collection of evidence claim seem like a burden to some people, it is necessary to meet the legal requirements of the law. Moreover, DEEOIC’s receipt of all available evidence improves the likelihood of an accurate and well-informed decision. DEEOIC makes every effort to limit requests to the information necessary to make an informed decision in response to a claim.
Question - What resources exist to help explain what the criteria are for claims under Part B and Part E?
The best source of information is the DEEOIC web site at – https://www.dol.gov/owcp/energy. The web site has a variety of resources explaining the program and offering guidance to claimants. Individuals interested in filing claims or seeking more information about the program may also contact one of the eleven DEEOIC Resource Centers. For more information on the program, individuals may also call (866) 888-3322 (Toll Free).
Question - Why is it that some employees who file a claim for COPD are accepted and others are not?
Chronic Obstructive Pulmonary Disease (COPD) is a breathing illness that can be associated with occupational exposure to different toxic substance exposures. The analysis of a claim for COPD depends on the submission of medical evidence that documents a diagnosis of the condition. In addition, there must be evidence that an employee performed work duties that brought them into contact with a toxic substance known to be associated with the development of COPD. Finally, a qualified physician must offer a medical opinion that an established exposure to one or more of those toxic substances was “at least as likely as not” a significant factor in aggravating, contributing to, or causing the COPD. Depending out the outcome of this analysis, a claim will either be accepted or denied.
Question - There are workers who have filed claims that have passed away before their claim is decided. Why are the families of these workers not given full compensation?
DEEOIC tries to process claims in as timely a manner as possible for all claimants and it is always unfortunate when someone passes away before the program can make a decision. Survivor compensation is available under the law; however, the amount payable may be different from what the law allows be paid to a living employee. The following presentation outlines the differences between employee vs survivor lump sum compensation amounts:
Question - Does DEEOIC ever consider the input of the claimant’s own doctor when evaluating claims for compensation under Part E?
Yes. DEEOIC encourages employees to have their own doctor provide information in support of a claim. This includes evidence in establishing the diagnosis of a claimed illness and offering an opinion that the diagnosed condition resulted from occupational toxic substance exposure.
Question - Why would the opinion of a treating physician not be used to accept a claim under Part E?
DEEOIC evaluates any medical opinion to make sure that it is based on an accurate factual history; aligns with available diagnostic and clinical evidence; and contains reasonable rationale to support the physician’s position. Whenever DEEOIC finds deficiencies with regard to the information used by a treating physician to support an opinion, DEEOIC will seek clarification. In the absence of a sufficient response, DEEOIC will turn to another physician to obtain a medical opinion.
Question - Are claimants ever “blacklisted” or denied payment of compensation when found payable by DEEOIC?
No. DEEOIC is required to pay compensation when the legal criteria for eligibility under the Act are satisfied.
Question - Why have some claimants had to fight for years to get compensation?
EEOICPA describes the necessary legal criteria that must be satisfied for a claimant to receive compensation. This requires the receipt by DEEOIC of evidence that allows it to make a positive determination for any individual seeking compensation. While many claims are successful, others may not be payable because they do not meet the legal threshold for compensability. Claimants who do not receive a positive outcome may choose to appeal their decision. Under the law, a claimant may elect to challenge a negative decision whenever they obtain new evidence for consideration.