EEOICPA BULLETIN NO.08-36
Issue Date: June 30, 2008
Effective Date: June 30, 2008
Expiration Date: June 30, 2009
Subject: Kellex/Pierpont SEC Class
Background: Pursuant to the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA) and 42 C.F.R. Part 83, a petition was filed on behalf of workers from the Kellex/Pierpont facility Jersey City, New Jersey to be added to the Special Exposure Cohort (SEC).
The decision to initiate this petition occurred after the National Institute for Occupational Safety and Health (NIOSH) determined that it could not reconstruct a dose under 42 C.F.R. § 83.14. NIOSH submitted its findings to the petitioner and the Advisory Board on Radiation and Worker Health (“the Board”). On April 30, 2008, the Board submitted recommendations to the Secretary of Health and Human Services (HHS) to add to the SEC a class of employees who worked at Kellex/Pierpont in Jersey City, New Jersey from January 1, 1943, through December 31, 1953.
On May 30, 2008, the Secretary of HHS designated the following class for addition to the SEC in a report to Congress.
All Atomic Weapons Employer (AWE) employees who worked at the Kellex/Pierpont facility in Jersey City, New Jersey from January 1, 1943, through December 31, 1953, for a number of work days aggregating at least 250 work days occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees in the Special Exposure Cohort.
A copy of the Secretary’s letter to Congress recommending the designation is included as Attachment 1. The SEC designation for this class became effective as of June 29, 2008, which was 30 days after the Secretary of HHS designated the class for addition to the SEC in a report to Congress. While Congress had the authority to reject the recommendation within the 30-day time frame, no action was taken to contradict the addition of this new SEC class.
While a new SEC class has been added for employees at Kellex/Pierpont, NIOSH has determined that it is possible to reconstruct occupational medical dose during the time period in question. This means that for claims that do not satisfy the SEC membership criteria, a partial dose reconstruction is to be performed by NIOSH.
References: Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. § 7384 et seq.; 42 C.F.R. Part 83, Procedures for Designating Classes of Employees as Members of the Special Exposure Cohort Under EEOICPA; the May 30, 2008 letter to Congress from the Secretary of HHS in which Secretary Leavitt makes the designation.
Purpose: To provide procedures for processing SEC claims for workers at the Kellex/Pierpont facility in Jersey City, New Jersey.
Applicability: All staff.
1. This class encompasses claims already denied, claims at NIOSH for dose reconstruction, and future claims yet to be submitted.
2. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has prepared a list of cases with claimed employment at the Kellex/Pierpont facility in Jersey City, New Jersey during the period of the SEC class. It includes pending cases, cases previously denied and those at NIOSH. It also includes specified and non-specified cancer cases. All cases on this comprehensive list must be reviewed by the district office(s) and by the Final Adjudication Branch (FAB) to determine whether the SEC class criteria are satisfied. This comprehensive list will be provided to the appropriate district offices and FAB under separate cover.
The comprehensive list also includes cases identified by NIOSH that should be considered for inclusion in the SEC class. NIOSH will return dose reconstruction analysis records for cases with specified cancers to the appropriate district office along with a CD for each case. The CD contains all of the information generated to date, e.g., CATI report, correspondence, and dose information. Also included on the CD, in the Correspondence Folder, should be a copy of the NIOSH letter sent to each claimant informing the claimant of the new SEC class and that his or her case is being returned to DOL for adjudication. A copy of the NIOSH letter to affected Kellex/Pierpont claimants is included as Attachment 2. The claims examiner (CE) must print out a hard copy of the NIOSH letter for inclusion in the case file.
There may be some cases on the comprehensive list that were not identified by NIOSH for potential inclusion in the SEC and consequently are still at NIOSH for a dose reconstruction. These cases must also be evaluated for inclusion in the SEC class in accordance with the procedures in this bulletin. If any such case qualifies under the SEC class, the CE through the Senior CE (SrCE), notifies the appropriate point of contact at NIOSH via e-mail to return dose reconstruction analysis records. The SrCE then prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) for inclusion in the case file. In addition, the CE must write a letter to the claimant to advise that the case file has been withdrawn from NIOSH for evaluation under the SEC provision.
Once a case file is returned from NIOSH (including those cases where DEEOIC has withdrawn from NIOSH) to the district office for potential inclusion in the SEC class, the CE enters status code “NW” (NIOSH, returned without a dose reconstruction) in ECMS B. The status effective date for the code entry is June 30, 2008. However, the code is not entered until the DEEOIC office actually receives the NIOSH-returned dose reconstruction record.
If the case is still at NIOSH and does not qualify under this SEC provision, based on the guidance provided in this bulletin, then refer to the instructions in Action #13.
3. For any cases identified as having a potential for compensability based on the new SEC class, the responsible CE is to review all relevant documentation contained in the case file, including any documentation that NIOSH may have acquired or generated during the dose reconstruction process.
4. Based on this review, the CE determines whether the claimant has a specified cancer, as listed in the Federal (EEOICPA) Procedure Manual (PM) Chapter 2-600.5. If the employee has a specified cancer, proceed to Action #5. If the employee does not have a specified cancer, proceed to Action #7.
5. If the employee has a specified cancer, the CE must determine if the worker was employed at least 250 work days at the Kellex/Pierpont facility in Jersey City, New Jersey between January 1, 1943 and December 31, 1953 (or in combination with work days within the parameters established for one or more other classes of employees in the SEC).
6. Once the CE has determined the employee has a diagnosed specified cancer and meets the employment criteria of the SEC classes, the CE should proceed in the usual manner for a compensable SEC claim and prepare a recommended decision.
ECMS Coding Reminder: The “SE” (Confirmed as SEC Claim) status code must be entered into ECMS B with a status effective date equal to the status effective date of the recommended decision to approve. (This is a change from previous guidance which tied the “SE” effective date to when the employment and medical criteria for SEC has been met). The SEC site code “52” for “Kellex Pierpont” must be selected from the drop down menu under the “SEC/SEC Desc” field on the claim screen.
7. The Secretary of Health and Human Services determined that it is not feasible for NIOSH to perform complete dose reconstructions for the class of employees who worked at the Kellex/Pierpont site in Jersey City, New Jersey from January 1, 1943, through December 31, 1953.
However, NIOSH has indicated that partial dose reconstructions are possible based on occupational medical dose. Accordingly, for cases that had not been submitted to NIOSH and do not meet the criteria of the SEC class, the CE must refer these cases to NIOSH with a NIOSH Referral Summary Document (NRSD) to perform dose reconstructions. The CE enters status code “NI” (Sent to NIOSH) in ECMS B. The status effective date is the date of the Senior or Supervisory CE signature on the NRSD.
For those cases which were previously submitted to NIOSH for dose reconstruction and which were returned to the district office for consideration for inclusion in this SEC class, a new NRSD is not required. If it is determined that the case does not qualify for the SEC class, the CE, through the Senior CE (SrCE), notifies the appropriate point of contact at NIOSH via e-mail to proceed with the dose reconstruction. The SrCE then prints a copy of the “sent” e-mail (making sure the printed copy documents the date it was sent) for inclusion in the case file. The CE enters the status code “NI” (Sent to NIOSH), effective the date of the e-mail requesting NIOSH to proceed with dose reconstruction. The e-mail should include a brief statement of why the case should proceed with dose reconstruction, e.g., non-specified cancer, insufficient latency period or does not meet the 250 work day requirement. In addition, the CE is to notify the claimant by letter that the case is returned to NIOSH for dose reconstruction and the reason(s) it does not qualify for SEC class.
Upon receipt of the dose reconstruction report, the CE proceeds in the usual manner and prepares a recommended decision. The CE enters the status code “NR” (NIOSH Dose Reconstruction Received) in ECMS B, selects the “PD” (Partial Dose Reconstruction) reason code, and enters the Probability of Causation (PoC). The status effective date is the date the dose reconstruction is date-stamped into the District Office. The CE should not delete the “NW” (NIOSH, returned without a dose reconstruction) or “NI” (Sent to NIOSH) code already present in ECMS.
8. If the claim meets the SEC employment criteria and includes both a specified cancer and a non-specified cancer, medical benefits are only paid for the specified cancer(s), any non-specified cancer(s) that has a dose reconstruction that resulted in a probability of causation of 50 percent or greater, and any secondary cancers that are metastases of a compensable cancer. In these instances, the CE drafts a recommended decision to accept the claim for the specified cancer (provided all criteria are met) and if necessary concurrently prepares a NRSD to NIOSH for a dose reconstruction for the non-specified cancer to determine eligibility for medical benefits. The CE enters the status code “SE” (Confirmed as SEC Claim) and the “NI” (Sent to NIOSH). The status effective date for the “SE” code is the date of the recommended decision to accept the specified cancer. The status effective date for the “NI” code is the date of the Senior or Supervisory CE signature on the NRSD .
9. If there is a final decision to deny based on a POC of less than 50% and a review of the evidence of record establishes likely inclusion in the SEC class, it will need to be reopened. In the exercise of the Director’s discretion of the reopening process, the Director is delegating limited authority to the four District Directors to sign Director’s Orders for reopening. This delegated authority is limited to reopenings based upon evidence that a Kellex/Pierpont employee meets the criteria for placement into the Kellex/Pierpont SEC class as defined by this Bulletin. This delegated authority extends to any case potentially affected by this SEC class. However, if the District Director is unsure of whether the SEC is applicable to the case, the case should be referred to the National Office. A sample Director’s Order is provided in Attachment 3. The Director is retaining sole signature authority for all other types of reopenings not otherwise delegated. Once a Director’s Order is issued, the district office is responsible for issuing a new recommended decision.
10. For those cases which are reopened under the authority granted in this Bulletin, the District Director enters status code “MN” (NO Initiates Review for Reopening) in ECMS B with a status effective date as the effective date of this bulletin.
For all reopenings per this bulletin, upon completing the Director’s Order to reopen the claim, the District Director enters status code “MD” (Claim Reopened – File Returned to DO) to reflect that the case has been reopened and is in the district office’s jurisdiction. (The “MZ” status code is not necessary). The status effective date of the “MD” code is the date of the Director’s Order.
Please note that while the “MD” code is generally input by National Office staff, entry of this code has been delegated to the District Director, just as the authority to grant reopenings has been in this specific circumstance.
11. Upon issuance of this Bulletin, FAB personnel must be vigilant for any pending Kellex/Pierpont cases that have a recommended decision to deny. All cases on the comprehensive list identified in action item 2 that are located at a FAB office must be reviewed for possible inclusion in the SEC class. If the employee worked at the Jersey City Kellex/Pierpont facility during the time specified, has a specified cancer, and meets the 250 work day requirement, FAB is to review the case for the parameters of the SEC as specified in this Bulletin. If the criteria of the SEC are met, the FAB is to reverse the district office’s recommended decision to deny and accept the case. The CE/HR enters status code “F6”, with a status effective date (FAB Reversed to Accept) of the FAB decision to reverse. The “SE” (Confirmed as SEC Claim) status code must be entered with a status effective date equal to the status effective date of the final decision to approve.
If no action is required FAB must follow the instructions specified in action item 13, below, to indicate that a review of the case was completed.
Every effort should be taken to avoid a remand of a potential SEC claim to the District Office. If FAB determines that the case cannot be approved based on the new SEC designation and that re-referral to NIOSH is appropriate (see action items 5 and 7) FAB must remand the case for district office action. The CE/HR enters status effective date “F7” (FAB Remanded) with “OTH” (No DO Error – Other) as the reason code, with a status effective date of the date of the remand.
12. The operational plan goal for the list of cases identified for review as part of this new SEC class is to complete the Part B recommended decision, return to NIOSH, or determine that no action is necessary within 45 days of the date of this Bulletin for at least 50% of the cases, and within 90 days for 95% of the cases. All cases requiring action due to this Bulletin should be completed within 120 days.
13. If after review or further development, the CE/HR determines that a case on the list does not require any action to be taken (either a new recommended decision to accept based on the SEC, a return to NIOSH, or a FAB reversal or remand) the CE/FAB HR must write a brief memo to the file that explains the case was reviewed under this bulletin, no additional action is necessary, and why. A case classified as not requiring any action is a case that does not meet the SEC criteria or there is no need to return it to NIOSH for partial dose reconstruction.
The CE enters the status code “NA” (No Action Necessary) and then selects the appropriate reason code from the reason code drop down list. The “NA” coding is specifically tied to the SEC review list generated by the DEEOIC and the “NA” code is restricted to ECMS B only because the SEC review list is derived from Part B data. For Kellex/Pierpont cases that were reviewed under this bulletin and require no additional action, the reason code that must be selected is “836” (Reviewed under 08-36, Kellex/Pierpont SEC). Even if the case is an E/B case, the NA-836 must be coded into ECMS B only. The status effective date of the “NA” code is the date of the memo to the file stating review is complete and the CE has determined there is no further action necessary. For those instances in which further development is necessary, the “NA” code is not entered initially. The “NA” code is only entered when the CE determines, after any necessary development, that the case does not meet the SEC criteria or there is no need to return it to NIOSH for partial dose reconstruction. For those cases on the DEEOIC list that were not withdrawn from NIOSH, the CE enters the “NA-836” code only after the CE determines that the case does not meet the SEC criteria. These cases remain at NIOSH for completion of a partial dose reconstruction.
If the CE discovers that the claimant(s) is/are deceased, the CE must still enter the “NA-836” code in addition to the closure code. The status effective date for the “NA” coding is the date of the memorandum to file.
Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
PETER M. TURCIC
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, and District Office Mail & File Sections