EEOICPA CIRCULAR NO.08-08 September 23, 2008
SUBJECT: This Circular provides additional clarification of the term “child” as defined under the EEOICPA.
Decisions on survivor claims filed under EEOICPA routinely reference the definitions of “child” found in 42 U.S.C. § 7384s(e)(3)(B) and § 7385s-3(d)(3). However, neither of those definitions describe the entire universe of claimants who can qualify as a “child” because they both use the non-exhaustive term “includes.” The regulation at 20 C.F.R. § 30.500(a)(2) also uses “includes” when defining a “child” under the EEOICPA. Although the Federal (EEOICPA) Procedure Manual contains guidance on who qualifies as a “child,” it does not do so in a unified manner. This Circular clarifies earlier guidance by providing a simple definition of the term “child” to be used when adjudicating all claims filed by alleged surviving children under Parts B and E.
Neither of the statutory definitions of the term “child” explicitly refers to persons who are the legitimate “issue” of a deceased covered employee, i.e., persons who are presumed to have a genetic link with a deceased covered employee because they are born within a marriage between the deceased covered employee and his/her spouse. These persons are reported to be children of the deceased covered employee on their birth certificates. Persons who do not have this presumed genetic link can use DNA or other types of genetic testing to prove that they have a genetic link to a deceased covered employee who has neither “recognized” nor otherwise openly acknowledged them as a child during their lifetimes. Combining these presumed and proven genetic “children” with those already described within § 7384s(e)(3)(B) and § 7385s-3(d)(3), the Division of Energy Employees Occupational Illness Compensation has devised the following comprehensive definition of the term “child” to be used in all recommended and final decisions on claims filed by persons alleging to be a surviving “child” of a deceased covered employee (of course, a “child” under Part E must still also meet one of the three additional criteria found in the definition of a “covered child”):
A “child” of an individual under both Parts B and E of EEOICPA can only be a biological child, a stepchild, or an adopted child of that individual.
A person who is or was only a “dependent” of an individual, but does not fit within the above comprehensive definition of a “child” of that individual, is not a “child” for the purposes of the compensation program established by EEOICPA.
The term “biological child” is broad and encompasses all of the types of individuals about whom there is either an undisputed presumption or affirmative proof regarding their genetic link to an individual. A “biological child” of an individual is any of the following:
1. A legitimate (born of married parents) child born while the individual is still living.
2. A legitimate child conceived while the individual is still living, but born after he/she has died (these persons are commonly referred to as “posthumous” children).
3. An illegitimate (born of unmarried parents) child born while the individual is still living, whether or not the individual ever “recognized” the person as a child.
4. An illegitimate child conceived while the individual is still living, but born after he/she has died.
All of these children are biological children, but those described in 3 and 4 above may have to prove that status through DNA or other types of genetic testing. In addition, there may be disputes between alleged children where these tests are submitted in an effort to refute the presumed genetic link of a person described in 1 and 2 above. Disputes regarding the outcome of genetic testing should still be evaluated using the guidance contained in Chapter 2-200.5b(1) of the Federal (EEOICPA) Procedure Manual. However, if there is uncertainty regarding the appropriateness of testing submitted in support of a dispute regarding the genetic link between a deceased covered employee and a claimant alleging to be that individual’s “child,” the matter should be referred to the Policy Branch for guidance and possible referral to the Solicitor’s Office.
RACHEL P. LEITON
Director, Division of Energy Employees
Occupational Illness Compensation
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