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Division of Federal Employees' Compensation (DFEC)

FECA Bulletins (2016-2020)

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.

Table of Contents

 


Fiscal Year 2017

FECA Bulletin No. 17-01

Compounded Medication Prescribing Guidelines

FECA Bulletin No. 17-02

Compensation Pay - Consumer Price Index (CPI) Cost-of-Living Adjustments.

FECA Bulletin No. 17-03

Herbal Supplement Prescribing and Authorizing Guidelines under the Federal Employees' Compensation Act (FECA)

FECA Bulletin No. 17-04

Investigations related to Federal Employees' Compensation Act (FECA) Claimant Fraud

FECA Bulletin No. 17-05

Investigations related to Federal Employees' Compensation Act (FECA) Medical Fraud

FECA Bulletin No. 17-06

Uniform methodology for calculating permanent impairment of the upper extremities1 using the Sixth Edition of the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment.

FECA Bulletin No. 17-07

Opioid Prescribing Guidelines

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Fiscal Year 2016

FECA Bulletin No. 16-01

Signatures on Outgoing Correspondence

FECA Bulletin No. 16-02

Compensation Pay: Compensation Rate Changes Effective January 2016.

FECA Bulletin No. 16-03

Compensation Pay - Consumer Price Index (CPI) Cost-of-Living Adjustments.

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FECA BULLETIN NO. 17-01

Issue Date: October 14, 2016

 


Subject: Compounded Medication Prescribing Guidelines

Background: Medical compounding is the process of combining or altering two or more drugs or their ingredients to create a hybrid that is tailored to the specific need of a patient. Compounding is normally done by licensed physicians or licensed pharmacists with the oversight of the states' boards of pharmacy. The Food and Drug Administration (FDA)–which exercises federal oversight on the quality, safety, and effectiveness of commercially available drugs–does not approve compounded medications.

Advocates of compound medication suggest that compounded drugs are effective in responding to patient-specific needs especially in cases when a standard drug somewhat fails to meet the dosage form, ingredients required to treat the patient, or route of administration. In addition, a patient may be allergic to ingredients such as dyes, gluten, or lactose found in commercially available medications. Compounding allows pharmacists and physicians to create customized formulas that treat the patient while leaving out the allergens. In addition, since every patient is different, and one's medical condition can vary by stage, severity, age, gender, and other variables, a case could be made for an engineered drug to target a patient's specific medical condition(s). Supporters hold that such direct use of compounded drugs on the site of injury or pain removes the need for swallowing, to which some patients are averse, and mitigates the systemic side effects associated with oral intake.

Opponents of compounded medication argue that compounded drugs pose a high risk of sub and super potency since profit-driven manufacturers may be biased in their choice of ingredients in order to maximize the bottom line. Critics also argue that compounded drugs generally suffer from poor quality, adulteration, counterfeiting, misbranding, and the lack of safety and effectiveness enjoyed by FDA approved drugs. In addition, the gap in federal oversight creates room for a menu of differing state guidelines which may be susceptible to exploitation by some industry stakeholders.

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 manage the prescription of compounded medications.

Purpose: To provide guidance to claims staff on the use of compounded products, and how to manage cases where a claimant is receiving such a product for any work-related condition. OWCP will now require a Letter of Medical Necessity (LMN) from the claimant's treating physician to authorize any compounded medication. Further, such LMN must be updated no less than every 90 days.

Action: For compounded prescriptions for any work-related condition(s):

  1. Compounded medications now require prior authorization from OWCP. Upon any attempt to fill a compounded prescription without prior authorization, an electronic message will be returned to the pharmacy notifying both the pharmacist and claimant of the LMN requirement. The fill will concurrently be denied.

  2. Upon receipt of any LMN for a compounded medication, an initial screening will be performed by the Central Bill Processing Unit (CBP) based on criteria developed by the OWCP Medical Director. Based on such review, the CBP will either generate a request for authorization for review by the claims examiner (CE) or return the LMN to the requesting physician with reasons for rejection1.

  3. Upon receiving a compounded medication authorization thread, the CE should review the LMN and any supporting documentation in the case record such as documented allergies and/or swallowing problems. If the justification for the compounded medication in the LMN is fully explained and consistent with the medical evidence of record, the CE may approve the authorization request without further action. In all other situations, the CE should review the record and conduct additional development including contacting the claimant's physician if additional information from that physician is needed. Based on the additional evidence needed to assess the appropriateness of the request, the claims examiner should either refer the claimant for a second opinion medical examination or for a records review by a District Medical Advisor (DMA).

  4. If, after conducting a file review and any necessary medical development, the resulting report supports the compounded medication as appropriate, the CE should approve the authorization request.

  5. Medical reports that do not support the use of compounded medication should be weighed against any contrary reports of record. If the weight of medical evidence establishes that the use of compounded medication is not appropriate, the CE should advise the employee accordingly and provide a period of no less than 30 days for response including an opportunity to submit additional supporting medical evidence. Following the expiration of such period, the CE should review and evaluate all medical evidence.

  6. If a conflict in medical evidence exists, an impartial referee medical evaluation should be scheduled to resolve that conflict. A conflict is created when a report from the employee's physician and the second opinion (or DMA) are of equal weight and reach opposite conclusions2. If no such conflict exists, a final decision should be issued in regards to entitlement to compounded medication.

  7. The CE may only authorize up to 90 days of compounded medication (to be filled each 30 days) use with each LMN. Following the expiration of any such authorization, a new LMN is necessary and authorization by the CE will again be required. The form should be submitted within 75 days of the prior LMN to allow for OWCP review. It should not be submitted sooner than 60 days after the submission of the prior LMN.

  8. The level of medical development necessary upon receipt of a subsequent LMN will be dependent on the previously established medical evidence of record. However, cases with ongoing compounded medication authorizations should be reviewed by the DMA or through a second opinion medical examination no less than once per year.

Applicability: Appropriate National and District Office personnel.

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

 

 

Douglas C. Fitzgerald
Director for
Federal Employees' Compensation

Distribution: All DFEC Staff

1 The claimant (or authorized representative) is entitled to a formal decision on entitlement to compounded medication, following appropriate development, if requested in writing in response to a rejection by the Central Bill Processing Unit. Requests coming from physicians, however, are not subject to that requirement.

2 5 U.S.C. 8123; 20 C.F.R. 10.321(b)

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FECA BULLETIN NO. 17-02

Issue Date: March 15, 2017

 


Expiration Date: February 28, 2018


Subject: Compensation Pay - Consumer Price Index (CPI) Cost-of-Living Adjustments.

Purpose: To furnish information on the CPI adjustment process for March 1, 2017.

The cost-of-living adjustments granted to a compensation recipient under the FECA are based on the "Consumer Price Index for Urban Wage Earners and Clerical Workers" (CPI-W) figures published by the Bureau of Labor Statistics (BLS). The annual cost of living increase is calculated by comparing the base month from the prior year to the base month of the current year, with the percentage of increase adjusted to the nearest one-tenth of 1 percent. 5 U.S.C. §8146(a) establishes the base month for the FECA CPI as December.

December 2015 had a CPI-W level of 230.791 and the December 2016 level was reported by BLS as 235.390. This means that the new CPI increase, adjusted to the nearest one-tenth of one percent, is 2.0 percent. The increase is effective March 1, 2017, and is applicable where disability or death occurred before March 1, 2016. In addition, the new base month for calculating the future CPI is December 2016.

The maximum compensation rates1, which must not be exceeded, are as follows:

$8,423.50
7,775.56
1,943.89
388.78

per month
each four weeks
per week
per day (for a 5 day week)

Applicability: Appropriate National Office and District Office personnel.

Reference: FECA Consumer Price Index (CPI) Amendment, dated January 6, 1981; Bureau of Labor Statistics Consumer Price Index Publication for December 2015 (USDL-17-0058)

Action: National Office Production staff will update the iFECS CPI tables and recalculate all payment records when the iFECS system is not in use by District Office personnel. This will occur prior to March 1, 2017. The March 4, 2017 check will be paid at the 2016 rate but include the supplemental CPI payment for the period of March 1st to March 4th. The following periodic roll check will reflect the updated 2017 28-day amount. Please note that if there are any cases with fixed gross overrides, there will be no supplemental record created. These cases must be reviewed to determine if CPI adjustments are necessary, and if so a manual calculation will be required. If the gross override payment is in fact eligible for annual CPI increases, the payment plate should be adjusted in the iFECS system to pay as a "Gross Override with CPI."

  1. CPI Minimum and Maximum Adjustments Listings. Form CA-841, Cost-of-Living Adjustments; Form CA-842, Minimum Compensation Rates; and Form CA-843, Maximum Compensation Rates, should be updated to indicate the increase for 2017. Attached to this directive is a complete list of all the CPI increases and effective dates since October 1, 1966 through March 1, 2017, for reference.
  2. Verification of Compensation. If claimants write or call for verification of the amount of compensation paid (possibly for mortgage verification; insurance verification; loan application; etc.), please continue to provide this data in letter form from the district office. Many times a Benefit Statement may not reach the addressee and regeneration of the form is not possible. A letter indicating the amount of compensation paid every four weeks will be an adequate substitute for this purpose.

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

1 Per Executive Order signed by President Obama on December 27, 2016.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

 

Attachment: Cost of Living Adjustments

 

COST-OF-LIVING ADJUSTMENTS
Under 5 USC §8146(a)

EFFECTIVE DATE

RATE

 

EFFECTIVE DATE

RATE

10/01/66
01/01/68
12/01/68
09/01/69

06/01/70
03/01/71
05/01/72
06/01/73
01/01/74
07/01/74
11/01/74
06/01/75
01/01/76
11/01/76
07/01/77
05/01/78
11/01/78
05/01/79
10/01/79

04/01/80
09/01/80
03/01/81
03/01/82
03/01/83
03/01/84
03/01/85
03/01/86
03/01/87
03/01/88
03/01/89

12.5%
3.7%
4.0%
4.4%

4.4%
4.0%
3.9%
4.8%
5.2%
5.3%
6.3%
4.1%
4.4%
4.2%
4.9%
5.3%
4.9%
5.5%
5.6%

7.2%
4.0%
3.6%
8.7%
3.9%
3.3%
3.5%
N/A
0.7%
4.5%
4.4%

 

03/01/90
03/01/91
03/01/92
03/01/93
03/01/94
03/01/95
03/01/96
03/01/97
03/01/98
03/01/99

03/01/00
03/01/01
03/01/02
03/01/03
03/01/04
03/01/05
03/01/06
03/01/07
03/01/08
03/01/09

03/01/10
03/01/11
03/01/12
03/01/13
03/01/14
03/01/15
03/01/16
03/01/17

4.5%
6.1%
2.8%
2.5%
2.5%
2.7%
2.5%
3.3%
1.5%
1.6%

2.8%
3.3%
1.3%
2.4%
1.6%
3.4%
3.5%
2.4%
4.3%
0.0%

3.4%
1.7%
3.2%
1.7%
1.5%
0.3%
0.4%
2.0%

Prior to September 7, 1974, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis or the nearest multiple of $.23 on a weekly basis ($.23, $.46, $.69, or $.92). After September 7, 1974, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis or the nearest $.25 on a weekly basis ($.25, $.50, $.75, or $1.00).

Prior to 09/07/74

.08-.34 = .23
.35-.57 = .46
.58-.80 = .69
.81-.07 = .92

Eff. 11/01/74

.13-.37 = .25
.38-.62 = .50
.63-.87 = .75
.88-.12 = 1.00

ATTACHMENT TO FECA BULLETIN NO. 17 - 02

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FECA BULLETIN NO. 17-03

Issue Date: March 22, 2017

 


Subject: Herbal Supplement Prescribing and Authorizing Guidelines under the Federal Employees' Compensation Act (FECA)

Background: The U.S. Food and Drug Administration (FDA) "is responsible for protecting the public health by assuring the safety, efficacy and security of human and veterinary drugs, biological products, medical devices, our nation's food supply, cosmetics, and products that emit radiation."1 There has been recent concern/interest in the efficacy and safety of dietary supplements.2

The Federal Food, Drug, and Cosmetic Act defines dietary supplements as "a vitamin; mineral; herb or other botanical, amino acid; dietary substance for use by man to supplement the diet by increasing the total dietary intake; or a concentrate, metabolite, constituent, extract, or combination of the preceding substances."3

"Herbs are a subset of botanical[]" plants, according to the National Institute of Health's Office of Dietary Supplements (NIH ODS).4 The NIH ODS states that "botanicals are not required by federal law to be evaluated for safety and effectiveness."5

The FDA clearly states that dietary supplements, including herbal supplements, "are not intended to treat, diagnose, cure, or alleviate the effects of diseases."6 In alignment and agreement with the FDA, it follows that herbal supplements are not medically necessary to treat, diagnose, cure or alleviate the effects of work-related injuries or illnesses FECA claimants sustain.

The FDA has documented the risks of dietary and herbal supplements.7 Risks associated with some herbal supplements include potentially unidentified ingredients that can be dangerous to claimants' health and safety, and manufacturers not following proper manufacturing processes and failing FDA inspections (leading to contamination and other health and safety issues). The FDA has a running list of drug safety alerts and advisories, which often includes dietary and herbal supplement safety alerts, on its website.8

An example of such a safety alert is a product named "Super Herbs" that was marketed as a weight loss product. Through laboratory testing, the FDA found that the herb, in fact, contained sibutramine and desmethylsibutramine, a substance structurally similar to sibutramine.9 "Sibutramine is a controlled substance that was removed from the market in October 2010 for safety reasons."10 The FDA, on November 19, 2015, further warned that Super Herbs "may also interact, in life-threatening ways, with other medications a consumer may be taking."11 Similarly, in one example of mislabeling, on November 30, 2015, the FDA requested a company to immediately cease distribution of a product it had mislabeled as a dietary supplement, when in fact it was a synthetic drug that crosses the blood-brain barrier, accumulates in the brain, affects cerebral vascular blood flow, and has a tranquilizing effect.12

An additional safety concern about these products is that herbal supplement manufacturing companies may not adhere to current Good Manufacturing Practice ("cGMP") regulations.13 For example a 2015 peer reviewed scientific study found that "FDA inspections of herbal supplement manufacturing facilities revealed violations of good manufacturing practices in over half of facilities inspected, including unsanitary conditions and lack of product specifications."14

Under the 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.

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

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 for authorizing herbal supplements for work-related illnesses or injuries.

The Program's policy, based upon the scientific justification that is wholly supported by the FDA, lack of pre-market testing of herbal supplements for safety and efficacy, and safety risks demonstrated by FDA inspections, will be to not authorize payment for herbal supplements unless a claimant's treating physician acquires prior authorization by submitting rationalized medical evidence that supports the herbal supplement's safety, effectiveness, and necessity. Resveratrol is an example of a substance OWCP considers to be an herbal supplement and would require prior authorization.

References: 5 U.S.C. § 8103; 5 U.S.C. § 8124 (a)(2); 5 U.S.C. § 8128; 5 U.S.C. § 8145; 5 U.S.C § 8149. See also 20 C.F.R. 10.800-826.

Purpose: To provide guidance to claims staff for authorizing herbal supplements for work-related illnesses or injuries.

Action: When a request for authorization for an herbal supplement is received (which would generally be in the form of a letter from the claimant or the attending physician), the claims examiner (CE) should:

  1. Review the case for a statement of medical necessity from the treating physician supported by a well-rationalized medical explanation that includes:
    • (a) a description of the herbal supplement needed to address effects of the work-related injury or condition, including its safety;
    • (b) specification of the anticipated frequency and/or duration for which authorization is requested;
    • (c) identification of the diagnosis for which the authorization is requested;
    • (d) the physician's rationale, with explanation, as to how authorization of the herbal supplement is medically necessary and expected to be effective in treating the accepted condition; and
    • (e) what non-herbal medical alternatives were considered and why they were rejected.
  2. If the information received is incomplete or the safety, effectiveness, or need for the herbal supplement is in doubt, the CE may:
    • (a) request written clarification from the attending physician;
    • (b) request an opinion from the District Medical Advisor;
    • (c) obtain a second opinion medical examination; and/or
    • (d) in the event there are medical opinions of equal but opposing value between the attending physician and the second opinion/DMA, obtain an impartial referee physician examination to resolve a conflict in medical opinion pursuant to 5 U.S.C. 8123.
  3. If the information received adequately supports the request with particular reference to item one, the CE may recommend authorization of the herbal supplement for up to 90 days. All authorizations for herbal supplements must be accomplished through the District Director (DD) exception process. See FECA Procedure Manual 5-0202.16(a). As noted on the CA 26 Letter of Medical Necessity, herbal supplements cannot be included and authorized in a compound medication through the use of that form.
  4. If, after any necessary development, the weight of medical evidence does not support authorization for the herbal supplement, the claimant should be notified that the herbal supplement is not authorized with appropriate explanation; a formal decision should be offered. If requested by the claimant and/or the authorized representative, the CE should provide a formal decision with appeal rights.

Applicability: Appropriate National and District Office personnel.

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

 

ANTONIO RIOS
Director for
Federal Employees' Compensation


1 What We Do, FDA, http://www.fda.gov/AboutFDA/WhatWeDo/ (last visited June 13, 2016).

2 See Some Imported Dietary Supplements and Nonprescription Drug Products May Harm You, FDA (Mar. 4, 2016), http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm466588.htm; Mixing Medications and Dietary Supplements Can Endanger Your Health, FDA (Oct. 27, 2014), http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm420349.htm.

3 Dietary Supplement Products & Ingredients, FDA, http://www.fda.gov/Food/DietarySupplements/ProductsIngredients/default.htm (last visited June 13, 2016); see also 21 U.S.C. § 321(ff).

4 Botanical Dietary Supplements, NIH ODS (June 24, 2011), https://ods.od.nih.gov/factsheets/BotanicalBackground-HealthProfessional/.

5 Id.

6 FDA 101: Dietary Supplements, FDA (July 15, 2015) https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm050803.htm.

7 See Information for Consumers on Using Dietary Supplements, FDA http://www.fda.gov/Food/DietarySupplements/UsingDietarySupplements/default.htm (last visited June 13, 2016).

8 See Safety Alerts & Advisories, FDA, http://www.fda.gov/Food/RecallsOutbreaksEmergencies/SafetyAlertsAdvisories/default.htm (last visited June 13, 2016).

9 Public Notification: Super Herbs Contains Hidden Drug Ingredients, FDA (Nov. 19, 2015), http://www.fda.gov/Drugs/ResourcesForYou/Consumers/BuyingUsingMedicineSafely/MedicationHealthFraud/ucm473597.htm.

10 Id.

11 Id.

12 Warning Letter from the FDA to Brandon Sojka (Nov. 30, 015), FDA, available at http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2015/ucm474788.htm.

13 See Current Good Manufacturing Practices (CGMPs) for Dietary Supplements, FDA, http://www.fda.gov/Food/GuidanceRegulation/CGMP/ucm079496.htm.

14 Donald M. Marcus, Dietary Supplements: What's in a name? What's in the bottle?, DRUG TESTING & ANALYSIS (Nov. 2, 2015), available at http://onlinelibrary.wiley.com/doi/10.1002/dta.1855/epdf.

 

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FECA BULLETIN NO. 17-04

Issue Date: May 8, 2017

 


Subject: Investigations related to Federal Employees' Compensation Act (FECA) Claimant Fraud

Background: In recent years, the Office of Workers' Compensation Programs (OWCP) has seen increased investigative activity by Department of Labor (DOL) Office of Inspector General (OIG) and other federal OIG offices in relation to allegations of actual or possible fraudulent behavior by injured workers having an accepted claim under the FECA. Such investigations may involve allegations of misrepresentation of physical disabilities, failure to report earnings or volunteer activities as required by FECA regulations (20 CFR §§ 10.525, 10.526) or fraudulent claims for reimbursement of travel expenses.

The FECA regulations (20 CFR §§10.16, 10.17, 10.18) set forth criminal, civil and administrative penalties for claimants who have committed fraud in connection with a FECA claim or are incarcerated in a State or Federal penal institution or other correctional facility due to a State or Federal felony conviction. As not all allegations of fraud or abuse by the OIG community will result in criminal prosecution/conviction it is important to differentiate between types of OIG requests. Generally requests will fall within one of three categories: data/record requests, non-prosecutorial investigative memoranda or reports of investigation, and prosecutorial cases.

OWCP is committed to cooperation with the OIG, the Department of Justice and the state prosecutor as necessary in providing support and, if requested, testimony at trial as to OWCP program standards.

Applicability: Appropriate National Office staff and District Office personnel, DOL OIG and other federal OIG offices.

References: 5 U.S.C. §§ 8101-8113, 8124, 8128, 8145, 8148-8149; 18 U.S.C. 287, 641, 1001, 1920; and 20 C.F.R. Part 10. See also FECA Circular 17-03.

Purpose: The purpose of this bulletin is to explain the process for review of allegations related to FECA claimant fraud submitted by the OIG community.

Actions: The guidance provided in this bulletin pertains to allegations of FECA claimant fraud. Allegations of FECA medical provider fraud are addressed in FECA Bulletin 17-05. This guidance does not affect established procedures or change the process by which the OIG community is required to request information, data and/or records from OWCP, as explained in FECA Circular 17-03.

I. Data/Record Requests

Upon receipt of data requests related to suspected FECA claimant fraud submitted in accordance with FECA Circular 17-03, the request will be added to the Claimant Fraud Tracking mechanism. OWCP will acknowledge receipt, and the request will be forwarded to the appropriate District Office Fraud Liaison and/or other designee as appropriate. The District Office Fraud Liaison and/or other designee will provide the OIG with the requested records and update the tracking mechanism accordingly. These requests will not be added to the OWCP case file based on the assumption that the information being requested from an OIG is based on an investigation into a potential violation of law, as outlined in FECA Circular 17-03.

II. Non-Prosecutorial Cases

Upon receipt of an investigation that establishes inconsistencies or calls into question the validity of the medical evidence, the severity of the employment injury, or the reported work restrictions but the activities do not rise to the prosecutorial level (meaning the case was not accepted for state or federal prosecution), the Investigative Memoranda and/or Report of Investigation (IM) will be placed in the case file and used for case management actions. Upon receipt of such non-prosecutorial evidence, OWCP will add the IM to the Claimant Fraud Tracking mechanism. OWCP will acknowledge receipt, and the request will be forwarded to the appropriate District Office Fraud Liaison as appropriate.

A. Notification to OIG of Interpreted Intent – When the request is forwarded to the District Office Fraud Liaison, the OIG will be notified that the IM will be placed into the file and action taken as appropriate. By copy of this notification, OIG is provided an opportunity to object to inclusion in the case file if their intent in submission was misinterpreted.

B. District Office Fraud Liaison Action(s) – Upon receipt of non-prosecutorial evidence, the District Office Fraud Liaison will:

1. Bronze the document(s) in the case file;

2. Assign and track the IM within the District Office in accordance with current practice;

3. Respond to the OIG via regular mail, within 30 days of receipt, with an initial letter outlining planned actions (this letter is bronzed into the case file);

4. Update the Claimant Fraud Tracking mechanism with the date of the initial action;

5. Notify the OIG via regular mail upon conclusion of case actions, including the final disposition (this letter is also bronzed into the case file); and

6. Update the Claimant Fraud Tracking mechanism with the date of the final action, including the final disposition (e.g. benefits reduced, benefits terminated, forfeiture, no change in benefit level, etc.).

III. Prosecutorial Cases - In the event that an OIG investigation results in prosecution, OWCP assistance may be requested in one or more of the following forms: calculation of loss to the government, trial testimony, statutory and/or regulatory action in response to criminal convictions or guilty pleas, or general technical assistance. Requested assistance related to prosecutorial cases and any evidence received in association with such requests will not be placed in the OWCP case record until the investigation is completed; all documents will be stored separately.

A. Loss to Government Requests – In accordance with FECA Circular 17-03, when requesting a loss to government calculation, the OIG will submit a memorandum which should include: the date range(s) in question, the claimant's employment and/or earnings activities, the actual dollar amount earned or the approximate number of hours worked per day/week during the CA-1032 or CA-7 period(s), and the status of any criminal prosecution. A date by which the loss calculation is needed and any evidence supporting the loss should also be included. If such evidence is shielded by grand jury protection, the OIG agent should include notification of such so that a list of individuals who should be granted access to the necessary information may be provided.

1. Upon receipt of an OIG request for calculation of the loss to government, OWCP will:

a. Add the request to Claimant Fraud Tracking mechanism;

b. Store the incoming documents electronically and update the Claimant Fraud Tracking mechanism with the relevant identifying information; and

c. Forward the request to the District Office Fraud Liaison providing the requesting OIG with a copy of the communication which will include notification to all that the request will not be made a part of the OWCP case file until the investigation is completed.

2. Upon receipt of a request for calculation of the loss to the government, the District Office Fraud Liaison will:

a. Prepare the loss to the government memorandum in accordance with established procedures and submit it to the National Office Fraud Liaison and/or other National Office designee(s) for certification;

b. Provide any additional evidence, coordination and/or cooperation necessary to the National Office Fraud Liaison and/or National Office designee(s) until such time as the National Office returns the certified loss memorandum;

c. Submit the certified loss memorandum, signed by the District Director or his/her designee, to the requesting OIG personnel via secure email;

d. Electronically store a copy of the signed loss memorandum; and

e. Update the Claimant Fraud tracking mechanism with the date of the responsive action.

B. Trial Testimony Requests – In the event that trial testimony is required from the OWCP, the OIG will submit a request for such in accordance with FECA Circular 17-03. Upon receipt of a request for testimony, OWCP will:

1. Add the request to Claimant Fraud Tracking mechanism;

2. Store the incoming documents electronically and update the Claimant Fraud Tracking mechanism with the relevant identifying information;

3. Respond to the OIG and/or the prosecutor acknowledging receipt of their request for testimony and providing the name(s) of those designated to provide such testimony (a copy of the communication will be provided to the named designees as notification that their testimony is anticipated); and

4. The Claimant Fraud Tracking mechanism will be updated with any additional actions deemed appropriate, concluding with the date that OWCP testimony is provided or ultimately deferred.

C. Convictions or Guilty Pleas – In the event that a claimant is convicted or pleads guilty to a crime of fraud in connection with a claim under the FECA, the OIG will promptly submit notification and documentation of the conviction or plea in accordance with FECA Circular 17-03.

1. Upon receipt of such notification and evidence, OWCP will:

a. Add the request (or update the prior record if one already exists) to the Claimant Fraud Tracking mechanism; and

b. Forward the notification of conviction/guilty plea to the District Office Fraud Liaison and provide a copy of such to the originating OIG which will constitute acknowledgement of receipt.

2. Upon receipt of evidence of a conviction or guilty plea, the District Office Fraud Liaison will:

a. Bronze the conviction or guilty plea into the case file(s) of record as well as any other relevant information (e.g. the charging document);

b. Assign and track the conviction/guilty plea internally in accordance with current practice until a termination of compensation decision is issued in accordance with 5 USC §8148, the decision is bronzed in the case file, and compensation is terminated; and

c. Update the Claimant Fraud Tracking mechanism with the date of the decision.

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

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

 

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FECA BULLETIN NO. 17-05

Issue Date: May 8, 2017

 


Subject: Investigations related to Federal Employees' Compensation Act (FECA) Medical Fraud

Background: In recent years, the Office of Workers' Compensation (OWCP) has seen an increased interest in FECA medical fraud investigations by the Department of Labor's (DOL) OIG (Office of Inspector General), as well as other federal OIG, which may involve allegations against one or more providers for fraudulent billing practices. These practices include utilizing improper billing codes, receiving higher remuneration than appropriate, and colluding with other providers to schematically defraud the FECA program.

The FECA regulations (20 CFR §§10.815, 10.816) mandate the exclusion of medical providers who have been convicted of fraud against OWCP or other Federal or state programs, and nothing contained in these procedures affects these mandatory provider exclusion procedures. Further, nothing contained in these procedures affects or restricts the OIG's ability to refer matters related to OWCP fraud to the DOL debarment official for consideration of any suspension or debarment remedies the debarment official deems appropriate1. Moreover, the FECA regulations (20 CFR § 10.816(c)) provide that OWCP may exclude a provider on a voluntary basis at any time. See also 20 C.F.R. 10.817 [Regarding OWCP's discretionary exclusion procedures].

While exclusion remains an option to address fraudulent and other questionable provider billing activity, OWCP will also exercise the Secretary of Labor's authority under 5 U.S.C. § 8124 (a)(2) to review the billing of providers that are under investigation by OIG, as well as those providers identified by OWCP as potentially engaging in billing practices that are fraudulent. This authority allows OWCP to complete any investigation considered necessary in making an award for or against the payment of compensation, which includes payments to medical providers.

Applicability: Appropriate National Office staff and District Office personnel, DOL OIG and other federal OIG offices.

References: 5 U.S.C. § 8103; 5 U.S.C. § 8124 (a)(2); 5 U.S.C. § 8128; 5 U.S.C. § 8145; 5 U.S.C § 8149; 31 USC § 3716(a). See also 20 C.F.R. 10.800-826; 29 C.F.R. §§ 20.19-20.62.

Purpose: The purpose of this bulletin is to explain the process for review of allegations related to FECA provider fraud referred by the DOL OIG, OWCP Program Integrity Unit or non-DOL OIG.

Actions: The guidance provided in this bulletin pertains to allegations of FECA medical fraud. Allegations of FECA claimant fraud are addressed in FECA Bulletin 17-04. This guidance does not affect established procedures or change the process by which the OIG community is required to request information, data, or records from OWCP, as explained in FECA Circular 17-03.

I. IDENTIFICATION OF POTENTIAL CASES

A. Referrals from DOL OIG - Allegations related to FECA provider fraud may be referred to OWCP by DOL OIG through an Investigation Initiation Memorandum. When making a referral, DOL OIG shall provide as much information as possible with respect to the identity of the provider(s) and tax ID(s), the nature of the allegations or scheme, and any other relevant information. The initial referral may provide any of the following positions and, at additional times deemed appropriate, DOL OIG may update such and shall inform OWCP of the current status of the matter within DOL OIG, for example:

1. The allegations have been reviewed and no investigative action will be taken, and OWCP may pursue administrative action as outlined in Section II.

2. The investigation has been closed without referral for prosecution, or has been referred for prosecution and declined, and OWCP may conduct an administrative review of the provider's bills, as outlined in Section II, or take other appropriate administrative action.

3. The allegations have been reviewed, an investigation has been opened, and OWCP may conduct an administrative review of the provider's bills, as outlined in Section II, or take other appropriate administrative action.

4. The investigation has been accepted for prosecution, and the prosecuting office has acknowledged that OWCP may concurrently conduct an administrative review of the provider's bills, as outlined in Section II.

5. The allegations have been reviewed, an investigation has been opened, the information is being provided to OWCP for informational and de-confliction purposes only, and OWCP should not conduct any administrative review of the provider's bills or take other administrative action.

6. The investigation has been accepted for prosecution, and the prosecuting office has requested that OWCP not conduct any administrative review of the provider's bills.

If the matter has been accepted for prosecution, the prosecuting office and/or DOL OIG will, to the greatest extent possible, provide its expectations for OWCP participation in the prosecution.

B. Referrals from OWCP's Program Integrity Unit – If this unit identifies a potential case (e.g. during review and analysis of data/cases or based on referral from the District Office), an Investigation Initiation Memorandum documenting the initial findings will be created. Prior to taking any administrative action outlined in Section II, the Investigation Initiation Memorandum (with any supporting evidence) should be sent to DOL OIG for review. OWCP will then take appropriate action depending on DOL OIG's response, see Section I(A)1-6.

The memorandum will include the following information:

1. Name and tax ID numbers of the provider(s).

2. Summary of the potential fraudulent activity and how/why the provider(s) and/or case(s) was flagged for review, to include a finding of whether this provider has been previously flagged by DOL OIG.

C. Referrals from Non-DOL OIG - Allegations related to FECA provider fraud may be referred to OWCP by non-DOL OIG through an Investigation Initiation Memorandum. When making a referral to OWCP, non-DOL OIG shall provide as much information as possible with respect to the identity of the provider(s) and tax ID(s), the nature of the allegations or scheme, and any other relevant information.

Upon receipt of the non-DOL OIG Investigation Initiation Memorandum, OWCP will respond and acknowledge receipt. Prior to taking any administrative action outlined in Section II, OWCP will refer the Investigation Initiation Memorandum to the DOL OIG for review. OWCP will then take appropriate action depending on DOL OIG's response, see Section I(A)1 and 3-6.

II. OWCP FACT FINDING AND INVESTIGATIVE ACTIONS

A. Receipt of Referral - Upon receipt of an Investigation Initiation Memorandum in accordance with Section I or identification of a case by the Program Integrity Unit, an administrative investigation number will be assigned to the request, the investigative case will be added to the Provider Fraud Tracking mechanism, and the administrative investigation number will be provided to the OIG acknowledging receipt of the referral.

1. Investigation Initiation Memorandum and supporting documentation, if applicable, will be filed in its own electronic file in iFECS.

2. As noted in Section I, if a criminal investigation and/or prosecution is being pursued, or is pending, OWCP will take appropriate action as dictated by the circumstances of the case with due consideration of any limitations placed on the breadth of the investigation by the OIG and/or the prosecuting official.

3. If criminal prosecution has been declined or is not being pursued, or the case was identified by the Program Integrity Unit and there is no open criminal investigation or plans to open one, the following actions will be considered:

a. The provider(s) may be placed in "provider on review" status so that all bills submitted will require review and approval prior to payment.

b. Each bill submitted by the provider (or a sampling of those bills) may be reviewed to determine whether the bill is appropriate and the services may be paid under the rules set forth in the FECA regulations (20 C.F.R. §§ 10.800 – 10.813).

c. In the course of investigating each bill, OWCP may review any relevant documentation and may contact the relevant parties (provider, injured worker, employer, etc.) to query them about the services provided in the suspect bill. These contacts will be documented.

d. Each bill reviewed may be tracked (using the TCN) under the investigation number (and under the appropriate provider where appropriate).

e. A determination may be made whether to pay or deny the bill(s) based on the information gathered, and the decision for each bill will be recorded.

B. Conclusion - The OWCP investigation will conclude when sufficient information has been obtained to make a determination whether the provider's billing was appropriate or whether it was in some manner fraudulent, misleading, deceptive, or unfair.

1. If OWCP finds that the billing was appropriate:

a. A memorandum will be created outlining a summary of the investigative actions taken and the reason the billing was determined to be appropriate.

b. The memorandum will be placed into the electronic investigative file.

c. The Provider Fraud Tracking mechanism will be updated to close the case.

d. If the referral was received from an OIG a close out letter will be issued.

2. If review of the billing reveals minor anomalies or errors:

a. Such bills may (consistent with current practice) be returned to the provider with an opportunity for correction. The notice to provider will include a warning that continued uncorrected activity may result in exclusion or additional administrative actions as described in Section V.

b. The case will then be closed as outlined 1b-d above, and the provider's billing may be reviewed again in the future for compliance.

3. If OWCP finds that the billing was not appropriate and that it was in some manner fraudulent, misleading, deceptive, or unfair or falls within activities enumerated in 20 C.F.R. § 10.815(c) through (j):

a. An Investigation Conclusion Memorandum will be prepared for referral to the DOL OIG.

(1) The referral memorandum will include a summary of the OWCP's fact finding and investigative actions and the reason the billing was determined to be fraudulent, misleading, deceptive, unfair or falls within activities enumerated in 20 C.F.R. § 10.815(c) through (j). All applicable documentation will be included with the referral, including the DOL OIG referral to OWCP, if applicable. If the case originated from a non-DOL OIG or the Program Integrity Unit, the Investigation Initiation Memorandum and DOL OIG's response to the initial review of that referral will also be included.

(2) The OWCP referral will request a response from the DOL OIG (see Section III).

b. The referral will be placed into the electronic investigative file.

c. The Provider Fraud Tracking mechanism will be updated to annotate the referral.

III. DOL OIG ACTION IN RESPONSE TO OWCP PROVIDER FRAUD REFERRAL

DOL OIG will review the materials provided and will determine whether an investigation will be opened, or if prior investigative work had been performed whether additional DOL OIG review and investigation is appropriate.

If DOL OIG decides not to conduct an investigation or additional investigation as the case may be, closes an investigation without referral for prosecution, or makes a referral for prosecution which is declined, DOL OIG will provide a written report to OWCP which complies with 20 C.F.R. § 10.817(c). This report will state whether DOL OIG has reasonable cause to believe that violations of 20 C.F.R. § 10.815 have occurred, based upon the information received from OWCP, DOL OIG's own investigative work, or both.

If the referral has been accepted for prosecution, in addition to the § 10.817(c) report, DOL OIG will provide documentation indicating whether an AUSA (or other prosecutorial official) was assigned to the case, and, if so, that the AUSA (or other prosecutorial official) was advised of the exclusion process, including the potential for administrative hearing before the Department's Office of Administrative Law Judges, and that the AUSA (or other prosecutorial official) does not object to the DOL OIG finding that there is reasonable cause to believe that violations of 20 C.F.R. § 10.815 have occurred and has no objections to OWCP initiating its administrative exclusion process.

Following receipt of a §10.817(c) report from DOL-OIG, and the documentation if any from the AUSA (or other prosecutorial official), OWCP will take appropriate action as outlined below in Section IV.

IV. OWCP CONCLUDING RESPONSE TO PROVIDER FRAUD REFERRAL

A. Insufficient evidence - If the evidence was determined to be insufficient to prosecute the case and the evidence also was determined to be insufficient to pursue erroneous amounts paid through the OWCP administrative procedures under the Debt Collection Act; or OWCP agrees with DOL OIG that a reasonable basis does not exist to initiate exclusion procedures:

1. The response will be placed into the electronic investigative file.

2. The Provider Fraud Tracking mechanism will be updated to close the case.

3. If the referral was received from a non-DOL OIG a close out letter will be issued.

B. Accepted for Prosecution - If DOL OIG decided to prosecute the case and requested that administrative actions be deferred:

1. The response will be placed into the electronic investigative file.

2. The Provider Fraud Tracking mechanism will be updated.

3. No further action will be taken pending further DOL OIG activity.

C. Provider Exclusion – If there exists a reasonable basis to exclude the provider(s), OWCP may initiate exclusion procedures. See FECA Bulletin 11-08 (Exclusion of Providers).

D. Administrative Actions – If the evidence is sufficient to pursue administrative actions to deny bills and/or to collect improper billings through the Debt Collection Act (and subsection IV(B) does not apply), the procedures in Section V will be followed.

V. OWCP ADMINISTRATIVE PROCESS TO COLLECT IMPROPER BILLINGS THROUGH THE DEBT COLLECTION ACT

A. Proposed Decision/Debt Declaration - If OWCP's review of bills (not those reviewed by the central bill provider) reveals that payment would not be appropriate or should not have been paid, OWCP will deny any pending bills and declare a debt in relation to any bills previously paid improperly. Prior to declaring a debt, OWCP will issue a proposed decision that will provide notice of a debt including the amount and basis for the debt as well as an opportunity to contest the debt in accordance with 29 C.F.R. §§ 20.19-20.62:

1. The proposed decision will be issued over the signature of the Deputy for Program Integrity.

2. The proposed decision will include:

a. Notification that there has been a determination of a debt and the statutory authority for the debt (FECA 5 USC 8101 et seq. and the Debt Collection Act 31 USC § 3716(a));

b. A description of the precipitating action that gave rise to the investigation (DOL OIG referral, non-DOL-OIG referral or identification by the Program Integrity Unit);

c. A summary of the investigative actions taken after the potential fraudulent activity was identified;

d. The amount of debt, type of debt, and date the debt occurred;

e. A determination whether the billing was determined to be fraudulent, misleading, deceptive or unfair, and the reason for that finding;

f. Demand for repayment within 30 days;

g. The debtor's opportunity to enter a written agreement to repay the debt;

h. A warning that the provider is subject to the exclusion process for billing improprieties in accordance with 20 C.F.R. 10.815-826;

i. The rights of the debtor to a full explanation of the claim and the opportunity to inspect and copy OWCP records with respect to the claim;

j. Notification that the debtor has an opportunity for rebuttal within 30 days;

k. The debt determination is subject to appeal procedures, but OWCP may withhold bill payments to the medical provider while an appeal is in progress;

l. OWCP may refer a debt to Treasury for collection within the first 180 days after the final agency determination; and

m. The referral to and response from DOL OIG, with all applicable documentation, will be included with the decision.

3. The proposed decision will be placed into the electronic investigative file.

4. The Provider Fraud Tracking mechanism will be updated to reflect the proposed decision.

5. DOL OIG will be provided a copy of the proposed decision, and if the referral was received from a non-DOL OIG, they will also receive a copy.

B. Final Determination - After 30 days have passed, the Provider's response (if any) will be evaluated.

1. If the evidence no longer supports the denial of the bill(s) and/or creation of the debt, OWCP will provide a response to the Provider that the administrative debt creation process has ceased.

a. The final decision will be placed into the electronic investigative file.

b. The Provider Fraud Tracking mechanism will be updated to reflect the outcome.

c. DOL OIG will receive a copy of the provider's response and OWCP's determination, and if the referral was received from a non-DOL OIG, they will also receive a copy.

2. If the evidence continues to support denial of the bills and/or the creation of the debt:

a. A final decision will be prepared to include the reason(s) the evidence/response submitted was insufficient to alter the initial determination.

b. Any appeal of that final decision must be submitted in writing by the provider to the Director of DFEC within 30 days.

c. DOL OIG will receive a copy of the decision, and if the referral was received from a non-DOL OIG, they will also receive a copy.

d. The final decision will be placed into the electronic investigative file.

e. The Provider Fraud Tracking mechanism will be updated to reflect the final decision.

f. The medical bill processor may be alerted to place any further billings from the provider on review.

C. Appeals – If the Provider disagrees with the final decision, an appeal must be submitted to the Director of DFEC within 30 days. The appeal should include any additional evidence or argument for consideration in support of the appeal. Upon issuance of the Director's decision, the provider will be notified that there will be no further review of the debt and that the debt may be referred to Treasury for collection.

NOTE: Given hold close nature of False Claims Act cases and the length of time such cases may run, nothing in these processes will affect False Claims Act cases unless the Department of Justice requests action be taken or suspended.

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

 

ANTONIO RIOS
Director for
Federal Employees' Compensation


1It is noted that the debarment and suspension process is separate and independent of any OWCP actions. See 48 C.F.R. Subpart 9.4, 48 C.F.R. Subpart 2909.4; 29 C.F.R. Part 98.

 

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FECA BULLETIN NO. 17-06

Issue Date: May 8, 2017

 


Subject: Uniform methodology for calculating permanent impairment of the upper extremities1 using the Sixth Edition of the American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment.

Background: The schedule award provisions of the Federal Employees' Compensation Act (FECA) at 5 U.S.C. 8107 and its implementing regulations at 20 C.F.R. 10.404 establish the compensation payable to employees sustaining permanent impairment. For consistent results and to ensure equal justice under the law to all claimants, good administrative practice necessitates the use of a single set of tables with uniform standards applicable to all claimants. The American Medical Association's (AMA) Guides to the Evaluation of Permanent Impairment has been adopted by the Office of Workers' Compensation Programs Division of Federal Employees' Compensation (DFEC) as the appropriate standard for evaluating schedule losses. In 2007, the AMA published the Sixth Edition of the Guides, noting that the Guides are revised periodically to incorporate current scientific clinical knowledge and judgment. This Edition implemented substantial reforms to the methodology of calculating permanent impairment. In August 2008, a 54 page "Clarifications and Corrections, Sixth Edition, Guides to the Evaluation of Permanent Impairment" was distributed. The 54 page publication specified clarifications and corrections to the original printing of the Sixth Edition of the Guides.

In accordance with its long established practice, the DFEC adopted the "most recent version" of the Sixth Edition of the Guides on March 15, 2009, with an effective date of May 1, 2009. The most recent version of the Sixth Edition at that time was the second printing of the Sixth Edition in 2009 which incorporated the clarifications and corrections which were published in August 2008.

One revision involved the method for determining upper extremity impairment (addressed in Chapter 15 of the Guides). The second printing revised Section 15.2, page 387, to state "Range of motion is used primarily as a physical examination adjustment factor and only to determine actual impairment values when a grid permits its use as an option."

Although there are interpretive complexities within Chapter 15, the chapter states "Impairment evaluations of the upper extremity must be performed within the context of the directives in Chapters 1 and 2."

Chapter 2, page 20, of the Guides states that one of the "Fundamental Principles of the Guides" is that "If the AMA Guides provide more than one method to rate a particular impairment or condition, the method producing the higher rating must be used."

Under Chapter 15, diagnosis-based impairment (DBI) is noted as the primary method of evaluation of the upper limb and the Guides instruct that most impairment values for the upper extremity are calculated using the DBI method. Initially in Chapter 15, when defining DBI, range of motion (ROM) is noted to be used primarily as a physical examination adjustment factor and only to determine actual impairment values when a grid permits its use as an option. Diagnoses in the particular regional grids that may alternatively be rated using ROM are followed by an asterisk (*).

For instance, Table 15-5, Shoulder Regional Grid, pages 401 – 405, provides 20 specific diagnoses divided among three categories: Soft Tissue; Muscle/Tendon; and Ligament/Bone/Joint. Of those 20 diagnoses, 17 of them include an asterisk (*). At the bottom of Table 15-5, page 405, the asterisk (*) designation is explained as follows: "If motion loss is present, this impairment may alternatively be assessed using section 15.7, Range of Motion Impairment. A range of motion impairment stands alone and is not combined with diagnosis impairment."

Unfortunately, the complexities of the explanations and the language throughout Chapter 15 has sometimes led physicians who have evaluated DFEC claimants to provide inconsistent interpretations for calculating upper extremity impairments.

The Employees' Compensation Appeals Board (ECAB) held that in light of the conflicting language in the Sixth Edition of the Guides "it is incumbent upon OWCP through its implementing regulations and/or internal procedures to establish a consistent method for rating upper extremity impairment." T.H. Docket No. 14-0943 (issued on November 25, 2016).

Purpose: To provide administrative DFEC guidance in order to establish a consistent method for rating upper extremity impairment. Specifically, this Bulletin provides a uniform method for calculating the impairment as it relates to the use of diagnosis-based impairment (DBI) versus range of motion (ROM) methods.

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

Applicability: District Medical Advisors and all National Office and District Office personnel. This applies to all schedule award decisions, initial as well as pending hearing and reconsideration decisions issued on or after the date of this Bulletin.

Action:

1. Impairment ratings should be based upon the most recent version of the Sixth Edition Guides. Currently, the reprinted 2009 AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition is the most recent version. As such, this version should be consistently utilized by the DFEC.

2. Upon receipt of a schedule award claim for upper extremity impairment, the Claims Examiner (CE) should continue to follow the procedures outlined in the Federal (FECA) Procedure Manual 2-0808 regarding development of schedule awards and eventual referral to the District Medical Advisor (DMA) as appropriate. Effective the date of this Bulletin, instructions to the rating physicians will be updated to provide specific guidance such that the rating evaluation should be performed in accordance with the policy described in this Bulletin.

3. As the Guides caution that if it is clear to the evaluator evaluating loss of ROM that a restricted ROM has an organic basis, three independent measurements should be obtained and the greatest ROM should be used for the determination of impairment, the CE should provide this information (via the updated instructions noted above) to the rating physician(s).

4. Upon initial review of a referral for upper extremity impairment evaluation, the DMA should identify (1) the methodology used by the rating physician (i.e. DBI or ROM) and (2) whether the applicable tables in Chapter 15 of the Guides identify a diagnosis that can alternatively be rated by ROM. If the Guides allow for the use of both the DBI and ROM methods to calculate an impairment rating for the diagnosis in question, the method producing the higher rating should be used.

5. If the rating physician provided an assessment using the ROM method and the Guides allow for use of ROM for the diagnosis in question, the DMA should independently calculate impairment using both the ROM and DBI methods and identify the higher rating for the CE.

6. If the rating physician provided an assessment using the ROM method and the Guides do not allow for the use of ROM for the diagnosis in question, the DMA should independently calculate impairment using the DBI method and clearly explain in the report, citing applicable tables in Chapter 15 of the Guides, that ROM is not permitted as an alternative rating method for the diagnosis in question.

7. If the rating physician provided an assessment using the DBI method and the Guides allow for use of ROM for the diagnosis in question, the DMA should independently calculate impairment using both the ROM and DBI methods and identify the higher rating for the CE.

8. If the medical evidence of record is not sufficient for the DMA to render a rating on ROM where allowed, the DMA should advise as to the medical evidence necessary to complete the rating. However, the DMA should still render an impairment rating using the DBI method, if possible, given the available evidence.

9. Upon receipt of such a report, and if the impairment evaluation was provided from the claimant's physician, the CE should write to the claimant advising of the medical evidence necessary to complete the impairment assessment and provide 30 days for submission. Any evidence received in response should then be routed back to the DMA for a final determination. Should no evidence be received within 30 days of the date of the CE's letter, the CE should proceed with a referral for a second opinion medical evaluation to obtain the medical evidence necessary to complete the rating. After receipt of the second opinion physician's evaluation, the CE should route that report to the DMA for a final determination.

If the original impairment rating found by the DMA to be insufficient was provided from a second opinion or referee physician (versus the claimant's physician), the CE should request a supplemental/clarification report from the second opinion or referee physician to address the medical evidence necessary to complete the impairment assessment. Medical evidence received in response to this request should then be routed back to the DMA for a final determination.

The CE should not render a decision on the schedule award impairment rating until the necessary medical evidence has been obtained. Proceedings under the FECA are not adversarial in nature, nor is OWCP a disinterested arbiter. While the claimant has the burden to establish entitlement to compensation, OWCP shares responsibility in the development of the evidence to see that justice is done. William J. Cantrell, 34 ECAB 1223 (1983).

10. The above guidance will be applied to all schedule award decisions as outlined above, , effective the date of this Bulletin. OWCP DFEC will not revisit prior cases unless a request for reconsideration is received that contains new legal argument and relevant medical evidence that addresses the necessary criteria outlined in this Bulletin. In accordance with existing procedure, where the original decision for which review is sought used the Sixth Edition and in the event that the recalculation results in a lesser impairment due to mathematical or other error, an overpayment will be declared.

Disposition: This Bulletin should be retained until incorporated in the Federal (FECA) Procedure Manual or otherwise superseded.

 

ANTONIO RIOS
Director for
Federal Employees' Compensation


1 This guidance should also be applied in addressing the much rarer situation where Guides offer alternative rating methods for lower extremity impairment.

 

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FECA BULLETIN NO. 17-07

Issue Date: June 6, 2017

 


Subject: Opioid Prescribing Guidelines

In 2015, more than 15,000 people died from overdoses involving prescription opioids1. Appropriate and responsible opioid prescribing saves lives and improves patients' quality of life. Opioid usage can impair a worker's ability to return to and maintain meaningful employment. Appropriate pain management involves developing a treatment plan utilizing, wherever possible, available non-narcotic modalities.

The Centers for Disease Control and Prevention (CDC) evaluated several opioid prescribing guidelines (http://www.cdc.gov/drugoverdose/prescribing/common-elements.html) designed to improve patient safety. All of the guidelines are aimed at educating the treating physician to perform the following common elements for those patients being prescribed an opioid product:

  • Conducting a physical exam, pain history, past medical history, and family/social history
  • Conducting urine drug testing, when appropriate
  • Considering all treatment options, weighing benefits and risks of opioid therapy, and using opioids when alternative treatments are ineffective
  • Starting patients on the lowest effective dose
  • Implementing pain treatment agreements
  • Monitoring pain and treatment progress with documentation; using greater vigilance at high doses
  • Using safe and effective methods for discontinuing opioids (e.g., tapering, making appropriate referrals to medication-assisted treatment, substance use specialists, drug rehabilitation programs or other services)
  • Using data from Prescription Drug Monitoring Programs (PDMPs) to identify past and present opioid prescriptions at initial assessment and during monitoring.

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 manage the prescription of opioid medications.

At this time, the new DFEC policy applies only to newly prescribed opioid use (i.e. claims where an opioid has not been prescribed within the past 180 days, if ever). It requires an injured worker's treating physician to complete a Certification/Letter of Medical Necessity, Form CA-27 (LMN), prior to authorization of any opioid medication in claims following an initial 60-day period. All subsequent prescriptions will require that the LMN be received and reviewed by claims staff before medication is authorized and dispensed. Authorizations for opioid drug prescriptions will be limited to a maximum of 60 days, with initial fills and refills to be issued in no more than 30-day supplies. However, the treating physician is encouraged to prescribe the shortest duration of opioid medication that will provide appropriate pain relief. Additionally, not more than two opioids may be authorized at any given time2.

Purpose: To provide guidance to claims staff on the authorization of opioid products (including compounded medications containing an opioid), and the management of cases where a claimant is receiving such a product for a work-related condition other than cancer. For claimants who are newly prescribed opioids (as noted above), OWCP will now require a LMN to continue authorizing opioids for periods following the initial 60 days. Further, such LMN must be updated no less than every 60 days thereafter. In order to avoid a disruption in the provision of medication, injured workers are encouraged to have their physician complete the LMN form 10 to 15 days prior to the end of each 60-day period to allow time for review and approval.

Action: For opioid prescriptions for any work-related condition other than cancer:3

1. Opioid medications in DFEC claims now require prior authorization from OWCP following an initial 60 day period. Upon an initial fill of an opioid prescription, the claimant will be notified at the point of sale that all opioid drugs require a LMN to be completed by his or her physician prior to dispensing, following the initial 60 day period.

2. Opioid medications included as a part of a compounded medication also require prior authorization from OWCP. However, there is no initial 60-day period afforded for such drugs. If the claims examiner (CE) receives a request for a compounded medication containing an opioid, he or she should follow established compounded medication procedures as outlined in FECA Bulletin 17-01.4

3. Subsequent fills of opioid prescriptions occurring after 60 days from the initial fill will require prior authorization. A new LMN will be required every 60 days and each one must be reviewed and approved by the CE. The physician should complete the form 10 to 15 days prior to the end of each 60 day authorization period to allow for a review of the medical documentation in the claim. Once a LMN is authorized, all fills (for a maximum 30 day period and not to exceed two opioid medications at any one time) will be approved until the end of the current authorization period. Any subsequent fill requests received for a period for which there is no LMN and resulting authorization will return an electronic message to the pharmacy notifying both the pharmacist and claimant of the LMN requirement. The fill will concurrently be denied.

4. A properly completed LMN will generate a request for authorization for review by the CE. An incomplete LMN will be returned to the physician for correction. Duplicate LMNs will be returned as will those submitted when there are already two authorized opioid LMNs on record.

5. Upon receipt of an initial authorization request for an opioid medication, the CE should review the medical evidence of record, to include the justification provided on the LMN and supporting medical documentation. In evaluating whether the request should be approved or if further development is necessitated, the CE should assess factors including but not limited to (1) whether the physician has enough knowledge regarding the claimant to arrive at a sound medical opinion, (2) the level of medical rationale provided by the physician, and (3) whether the necessity is based on objective clinical findings versus subjective complaints. See FECA Procedure Manual 2-810.6 for additional discussion on weighing and evaluating medical evidence. If the CE determines that the totality of the medical evidence supports continued opioid use, he or she may approve the initial authorization request without further action. See items 8 and 9 below for necessary actions following receipt of subsequent authorization requests.

6. Should the CE determine additional development is needed, he or she may contact the claimant's physician if additional information is needed. The District Medical Advisor (DMA) may also be consulted to determine the appropriateness of the opioid prescription and pain management plan including the requests for treatment/rehabilitation plans to treat dependence on opioids due to prescriptions for an employment-related condition. The CE may also choose to send the claimant for a second opinion (SECOP) examination if warranted based on the evidence of record. If a Field Nurse (FN) has been assigned to the case, the CE may also direct the FN to address the issue of ongoing opioid usage with the treating physician. The CE may continue to authorize opioid medications while development is pending.

7. The CE may only authorize up to 60 days of additional opioid use with each sufficiently rationalized LMN. Following the expiration of any such authorization, a new LMN is necessary and authorization by the CE will again be required.

8. Continuing opioid use may only be authorized beyond 120 days from the initial fill if the CE has written to the treating physician (or referred the case to a SECOP or DMA) asking for rationalized medical justification for the ongoing prescription of opioid medications. As such, should the CE authorize the second consecutive letter of medical necessity in a given case file, he or she should concurrently write to the treating physician to specifically address the medical necessity of continued opioid medication (or refer the file to a SECOP or DMA). The CE may continue to authorize opioid medications while development is pending as long as there is follow up and/or additional development at reasonable intervals.

9. Cases with continued opioid use should be reviewed by either a DMA or SECOP examination every six months from the first authorization.

10. The requirements in items (8) and (9) may only be waived if exceptional circumstances exist that are certified by a Supervisory Claims Examiner (SCE) or higher authority.

11. If more than six months have passed since the last opioid medication was filled, the process begins anew with an initial 60 days of opioid medication provided without a LMN.

Applicability: Appropriate National and District Office personnel.

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

 

ANTONIO RIOS
Director for
Federal Employees' Compensation

Distribution: All DFEC Staff


1 CDC. Wide-ranging online data for epidemiologic research (WONDER). Atlanta, GA: CDC, National Center for Health Statistics; 2016

2 In accordance with longstanding FECA policy prohibiting therapeutic duplication, only one such opioid may be a Schedule II drug.

3 The issuance of this bulletin does not supersede or otherwise modify existing guidance on Fentanyl. See FECA Bulletin No. 11–05 (issued May 3, 2011).

4 Unlike other compounded medications, no screening will be performed by the Central Bill Processing Unit (CBP) on compounded medications containing an opioid.

 

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FECA BULLETIN NO. 16-01

Issue Date: October 13, 2015

 


Subject: Signatures on Outgoing Correspondence

Background: DFEC routinely responds to a myriad of written inquiries. Claims staff also issue written correspondence when developing and adjudicating a claim, and when terminating, reducing or suspending entitlement following case acceptance.

In an increasingly digital age, DFEC has determined that some outgoing correspondence no longer requires a signature to release. It should be noted, however, that the author of the document must still be identified including by title. DFEC has also clarified procedures with regards to the specific identification of the author.

Purpose: To provide guidance on (1) what outgoing correspondence no longer requires a signature prior to release, and (2) the format by which claims staff should identify themselves when writing correspondence, regardless of whether a signature is required.

Applicability: All National Office and District Office personnel.

Action:

1. Claims staff may release any routine correspondence, including initial development letters as addressed in DFEC PM 2-0800, without a signature. However, the author of the correspondence must be identified on the letter in accordance with action item 2 below.

Correspondence that must bear a signature1 includes:

(1) Priority Correspondence as addressed in DFEC PM 2-0300.5;

(2) Controlled Correspondence as addressed in DFEC PM 2-0300.6;

(3) Initial Acceptances as addressed in DFEC PM 2-0806;

(4) Initial Denials as addressed in DFEC PM 2-1401;

(5) All Formal Decisions, including Proposed Decisions, addressed in DFEC PM 2-1400;

(6) Preliminary Findings of Overpayment, Final Decisions of Overpayment, and any correspondence used with the intention of collecting a debt as addressed in DFEC PM Part 6;

(7) Responses to Privacy Act and Freedom of Information Act (FOIA) Requests.

2. Claims staff should clearly identify themselves in any written correspondence and include their current title. Personnel may choose a convention for signing: to either use their full name or abbreviate their first name. Use of a middle initial is also optional. For example, the following would be appropriate identifiers for John M. Smith (sample titles inserted thereafter).

(1) John M. Smith, Special Examiner

(2) John Smith, Claims Examiner

(3) J. Smith, Supervisory Claims Examiner

(4) J.M. Smith, Senior Claims Examiner

However, if any office has multiple individuals that could potentially have identical identifiers (i.e. John Smith, Jane Smith), the District Office will establish a procedure to identify the exact author of the document.

 

Disposition: This bulletin is to be retained until incorporated unto the DFEC Procedure Manual.

 

Douglas C. Fitzgerald
Director for
Federal Employees' Compensation

1Original signatures need not be a wet signature. It may be a computerized signature; the Electronic Approval Process (ELAPP) being piloted by DFEC will create a signing record incorporating an approval process confirming that the signature is legally binding and valid. Formalized procedures will be issued when piloting is completed.

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FECA BULLETIN NO. 16-02

Issue Date: March 1, 2016

 


Expiration Date: January 1, 2017


Subject: Compensation Pay: Compensation Rate Changes Effective January 2016.

Background: On December 18, 2015, the President signed an Executive Order implementing a salary increase of 1.0 percent in the General Schedule basic pay. The applicability under 5 U.S.C. 8112 only includes the 1.0 percent increase in the basic General Schedule. Any additional increase for locality-based pay is excluded. The adjustment became effective at the start of the first full pay period after January 1, 2016.

Purpose: To inform the appropriate personnel of the increased minimum/maximum rates of compensation and the adjustment procedures for affected cases on the periodic disability and death payrolls.

The new rates were effective with the first compensation payroll period beginning on or after January 1, 2016. Thus, for daily roll supplemental payments January 10, 2016 is the specific effective date of the increase. The effective date for the increase of periodic and death roll payments will also be January 10, 2016. The new maximum compensation rate payable is based on the scheduled salary of a GS-15, Step 10, which is now $133,444 per annum. The basis for the minimum compensation rate is the salary of a GS-2, Step 1 which is now $20,623 per annum.

The minimum increase specified in this Bulletin is applicable to employees of the U.S. Postal Service.

The effect on 5 U.S.C. 8112 is to increase the payment of compensation for disability claims to:

Effective January 10, 2016

Minimum

Maximum

Weekly

$297.45

$1,924.67

Daily (5-day week)

59.49

384.93

 

Effective January 10, 2016

Minimum

Maximum

28-Day Cycle

$1,189.76

$7,698.69

The effect on 5 U.S.C. 8133(e) is to increase the monthly pay on which the compensation for death is computed to:

Effective January 10, 2016

Minimum

Maximum

Monthly

$1,718.58

$8,340.25

Applicability: Appropriate National and District Office personnel

Reference: Memorandum for Executive Heads of Departments and Agencies dated December 18, 2015; and the attachment for the 2016 General Schedule.

Action: The Integrated Federal Employees' Compensation System (iFECS) will update the periodic disability and death payrolls. It should be noted that this adjustment process re-calculates EVERY compensation record from its very beginning to current date. Thus, it may be that minor changes in the gross compensation are noted; this is not necessarily incorrect.

Any cases keyed as "Gross Overrides without CPI" in iFECS will not have a supplemental record or make a separate calculation of additional entitlement. Thus, these gross override cases must be reviewed to determine if adjustments are necessary. If an adjustment is necessary, a manual calculation will be required and the case record documented. A notice should be sent to the payee by the District Office, detailing the change in the rate of compensation. All cases keyed as "Gross Overrides with CPI" will be adjusted in the usual manner.

1. Adjustments Dates.

a. As the effective date of the adjustment was January 10, 2016 for the periodic disability and death rolls, there was no supplemental payroll needed. The February 6, 2016 death and disability payments will include any necessary minimum or maximum compensation adjustments.

b. As the effective date of the adjustment was January 10, 2016 for the periodic disability and death rolls, there was no supplemental payroll needed. The February 6, 2016 death and disability payments will include any necessary minimum or maximum compensation adjustments.

2. Adjustment of Daily Roll Payments. The salary adjustments are not retroactive, so it is assumed that all Federal agencies have ample time to receive and report the new pay rates on claims for compensation filed on or after January 1, 2016. Therefore, it is not necessary to review any of these payments.

However, if an inquiry is received then verification of the pay rate must be secured from the employing agency, and the necessary adjustment applied.

 

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

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Distribution: All DFEC Staff

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FECA BULLETIN NO. 16-03

Issue Date: June 28, 2016

 


Expiration Date: February 29, 2017


Subject: Compensation Pay - Consumer Price Index (CPI) Cost-of-Living Adjustments.

Purpose: To furnish information on the CPI adjustment process for March 1, 2016.

The cost-of-living adjustments granted to a compensation recipient under the FECA are based on the "Consumer Price Index for Urban Wage Earners and Clerical Workers" (CPI-W) figures published by the Bureau of Labor Statistics (BLS). The annual cost of living increase is calculated by comparing the base month from the prior year to the base month of the current year, with the percentage of increase adjusted to the nearest one-tenth of 1 percent. 5 U.S.C. §8146(a) establishes the base month for the FECA CPI as December.

December 2014 had a CPI-W level of 229.909 and the December 2015 level was reported by BLS as 230.791. This means that the new CPI increase, adjusted to the nearest one-tenth of one percent, is 0.4 percent. The increase is effective March 1, 2016, and is applicable where disability or death occurred before March 1, 2015. In addition, the new base month for calculating the future CPI is December 2015.

The maximum compensation rates1, which must not be exceeded, are as follows:

$8,340.25
7,698.69
1,924.67
384.93

per month
each four weeks
per week
per day (for a 5 day week)

Applicability: Appropriate National Office and District Office personnel.

Reference: FECA Consumer Price Index (CPI) Amendment, dated January 6, 1981; Bureau of Labor Statistics Consumer Price Index Publication for December 2015 (USDL-16-0109)

Action: National Office Production staff updated the iFECS CPI tables and recalculated all payment records when the iFECS system was not in use by District Office personnel. This occurred on March 1, 2016. The March 5, 2016 check was paid at the 2015 rate but included the supplemental CPI payment for the period of March 1st to March 5th. The following periodic roll check will reflect the updated 2016 28-day amount. Please note that if there are any cases with fixed gross overrides, there will be no supplemental record created. These cases must be reviewed to determine if CPI adjustments are necessary, and if so a manual calculation will be required. If the gross override payment is in fact eligible for annual CPI increases, the payment plate should be adjusted in the iFECS system to pay as a "Gross Override with CPI."

1. CPI Minimum and Maximum Adjustments Listings. Form CA-841, Cost-of-Living Adjustments; Form CA-842, Minimum Compensation Rates; and Form CA-843, Maximum Compensation Rates, should be updated to indicate the increase for 2016. Attached to this directive is a complete list of all the CPI increases and effective dates since October 1, 1966 through March 1, 2016, for reference.

2. Verification of Compensation. If claimants write or call for verification of the amount of compensation paid (possibly for mortgage verification; insurance verification; loan application; etc.), please continue to provide this data in letter form from the district office. Many times a Benefit Statement may not reach the addressee and regeneration of the form is not possible. A letter indicating the amount of compensation paid every four weeks will be an adequate substitute for this purpose.

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

1Per Executive Order 13715 signed by President Obama on December 18, 2015.

 

DOUGLAS C. FITZGERALD
Director for
Federal Employees' Compensation

Attachment: Cost-of-Living Adjustments

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

 

COST-OF-LIVING ADJUSTMENTS
Under 5 USC §8146(a)

EFFECTIVE DATE

RATE

 

EFFECTIVE DATE

RATE

10/01/66
01/01/68
12/01/68
09/01/69

06/01/70
03/01/71
05/01/72
06/01/73
01/01/74
07/01/74
11/01/74
06/01/75
01/01/76
11/01/76
07/01/77
05/01/78
11/01/78
05/01/79
10/01/79

04/01/80
09/01/80
03/01/81
03/01/82
03/01/83
03/01/84
03/01/85
03/01/86
03/01/87
03/01/88
03/01/89

12.5%
3.7%
4.0%
4.4%

4.4%
4.0%
3.9%
4.8%
5.2%
5.3%
6.3%
4.1%
4.4%
4.2%
4.9%
5.3%
4.9%
5.5%
5.6%

7.2%
4.0%
3.6%
8.7%
3.9%
3.3%
3.5%
N/A
0.7%
4.5%
4.4%

 

03/01/90
03/01/91
03/01/92
03/01/93
03/01/94
03/01/95
03/01/96
03/01/97
03/01/98
03/01/99

03/01/00
03/01/01
03/01/02
03/01/03
03/01/04
03/01/05
03/01/06
03/01/07
03/01/08
03/01/09

03/01/10
03/01/11
03/01/12
03/01/13
03/01/14
03/01/15
03/01/16

4.5%
6.1%
2.8%
2.5%
2.5%
2.7%
2.5%
3.3%
1.5%
1.6%

2.8%
3.3%
1.3%
2.4%
1.6%
3.4%
3.5%
2.4%
4.3%
0.0%

3.4%
1.7%
3.2%
1.7%
1.5%
0.3%
0.4%

Prior to September 7, 1974, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis or the nearest multiple of $.23 on a weekly basis ($.23, $.46, $.69, or $.92). After September 7, 1974, the new compensation after adding the CPI is rounded to the nearest $1.00 on a monthly basis or the nearest $.25 on a weekly basis ($.25, $.50, $.75, or $1.00).

Prior to 09/07/74

.08-.34 = .23
.35-.57 = .46
.58-.80 = .69
.81-.07 = .92

Eff. 11/01/74

.13-.37 = .25
.38-.62 = .50
.63-.87 = .75
.88-.12 = 1.00

ATTACHMENT TO FECA BULLETIN NO. 16-03

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