# Performance of Functions Under This Chapter; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act of 2000, as Amended

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URL: https://www.frixlaw.com/law-library/documents/fr%3A02-31841

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 26, 2002
- **Citation:** 67 FR 78874

## Text

DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Parts 1 and 30
RIN 1215-AB32
Performance of Functions Under This Chapter; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act of 2000, as Amended

AGENCY:

Office of Workers' Compensation Programs, Employment Standards Administration, Labor.

ACTION:

Final rule.

SUMMARY:

On May 25, 2001, the Department of Labor (DOL) published interim final regulations that governed its responsibilities under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act). The Act provides lump-sum payments and medical benefits to covered employees and, where applicable, to survivors of such employees, of the Department of Energy (DOE), its predecessor agencies and certain of its vendors, contractors and subcontractors. The Act also provides smaller lump-sum payments and medical benefits to individuals found to be eligible for an award under section 5 of the Radiation Exposure Compensation Act, as amended (RECA), and where applicable, to their survivors.

At the same time the Department published the interim final regulations, it also invited written comments and advice from interested parties regarding possible changes to those regulations. This document amends the interim final regulations based on comments that the Department received, and also includes changes necessary to conform the regulations to several technical amendments to the EEOICPA that Congress enacted after the interim final regulations were published.

DATES:

Effective Date:
This rule will be effective on February 24, 2003, and will apply to all claims filed on or after that date. This rule will also apply to any claims that are pending on February 24, 2003.

Compliance Date:
Affected parties do not have to comply with the new information collection requirements in §§ 30.112 and 30.213 until DOL publishes in the
Federal Register
the control number assigned by the Office of Management and Budget (OMB) to these information collection requirements. Publication of the control number will notify the public that OMB has approved the new information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.
). It should be noted that OMB approval of the new information collection requirements will be a revision to the currently approved collection in OMB Control No. 1215-197.

Comments:
Written comments on the new information collection requirements in §§ 30.112 and 30.213 must be received by January 27, 2003.

ADDRESSES:

Written comments on the new information collection requirements in §§ 30.112 and 30.213 should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Employment Standards Administration, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT:

Shelby Hallmark, Director, Office of Workers' Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., Washington, DC 20210, Telephone: 202-693-0036 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

The Department of Labor's interim final regulations implementing its responsibilities under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384
et seq.
), were published in the
Federal Register
on May 25, 2001 (66 FR 28948). The interim final rule took effect on July 24, 2001 and originally included a 90-day period for comment. On September 12, 2001, the Department retroactively reopened the comment period on the interim final rule and extended the period for comment through September 24, 2001 (66 FR 47382). During this comment period, the Department received 216 timely comments: Six from congressional representatives; 10 from labor organizations; 6 from physicians; seven from attorneys; 13 from advocacy groups; one from a lay representative; one from the City Council of the City of Niagara Falls, New York; one from the Department of Defense; and 171 from individuals. The Department also received untimely comments from two advocacy groups and four individuals; the points they raised were also raised by the timely commenters. A majority of the commenters addressed the issue of survivor benefits (out of the 143 commenters that addressed this issue, 85 commenters addressed this issue alone). Other commenters addressed a range of issues, including coverage for particular illnesses, the administrative claims process, entitlement qualifications, and the extent of medical benefits provided under the program. The Department's section-by-section analysis of the timely comments it received is set forth below (
see
sections I and II).

Some minor changes have been made to the interim final regulations that did not result from any comments. One such change is the addition of new paragraph (b) to § 30.15 to recognize that unpaid lump-sum payments of compensation under the Act may be subject to garnishment to collect overdue alimony and child support. A second change is the addition of a clause in § 30.115(a) that exempts any non-radiogenic cancer listed by the Department of Health and Human Services (HHS) in 42 CFR 81.30 from referral to HHS for dose reconstruction, because that regulation affirmatively directs DOL to “assign a probability of causation of zero” to any such cancers (and therefore a referral for dose reconstruction would serve no useful purpose); this exemption replaces the one in former § 30.115(b). In addition, § 30.213 has been divided into two sections to better reflect the two methods the Office of Workers' Compensation Programs (OWCP) uses to develop cancer claims. Similarly, § 30.505 has been divided into two sections to distinguish the pre-payment actions OWCP will take before it pays compensation from the payment mechanisms it will use to make such payments. To accomplish this, paragraphs (b), (c) and (d) from former § 30.505 are retained in final § 30.505, and the remaining paragraphs from former § 30.505 are now in final § 30.506.

This rule also corrects several sections of the interim final regulations to conform the final regulations with the technical amendments to sections 7384l, 7384q, 7384r, 7384s, 7384u, 7385d, and 7385g of the Act made by section 2403(a) of Public Law 107-20, 115 Stat. 155, 175 (July 24, 2001), and by section 3151(a) of Public Law 107-107, 115 Stat. 1012, 1371 (December 28, 2001). As a result of these corrections, § 30.5 now includes both the current list of specified cancers and the current method of establishing chronic silicosis, §§ 30.500 through 30.502 reflect the current statutory provisions on survivors, § 30.603 has been added to reflect the amended attorney fee limitation provision, and §§ 30.615 and 30.616 have been rewritten as §§ 30.615 through 30.619 to properly reflect the amended election of remedies provision. Section 2403(b) of Public Law 107-20 provided that the addition of “renal cancers” to the list of specified

cancers took effect on October 1, 2001, and section 3151(a)(4)(D) of Public Law 107-107 provided that the changes to the survivor provisions were retroactive to July 1, 2001. The remainder of the amendments to the Act were effective as of December 28, 2001.

When publishing a final rule following a comment period, it is customary to publish only the changes that have been made to the rule; however, in order to be more user-friendly, the Department is publishing the entire rule, including the parts that have not been changed. By doing so, only one document containing all of the regulations and commentary needs to be consulted rather than multiple documents.

I. Comments on the Interim Final Regulations

The section numbers used in the headings of the following analysis are those that were used in the interim final regulations. Unless otherwise stated, the section numbers in the text of the analysis refer to the numbering used for the final regulations. No comments were received with respect to part 1.

Section 30.2

One advocacy group suggested that OWCP provide EEOICPA claimants with State workers' compensation claim forms in addition to EEOICPA claim forms, as part of OWCP's role in the EEOICPA claim process. This suggestion was not adopted because section 7385o of the EEOICPA names DOE as the Federal entity authorized to enter into an agreement with the chief executive officer of a State, to establish procedures, and to administer the submission and adjudication of such claims. This separation of functions is also found in Executive Order 13179 (“Providing Compensation to America's Nuclear Weapons Workers”) of December 7, 2000 (65 FR 77487). However, DOL and DOE have established joint Resource Centers to provide claimants with assistance, information and the forms necessary for filing both Federal and State claims.

Section 30.5(bb)

One advocacy group suggested that the term “physician” should be expanded to specifically include dermatologists and other specialists in skin cancers. The suggestion was not adopted because these medical professionals are already included in the broad, non-exclusive definition of “physician” that appears in this section.

Section 30.5(cc)

One physician suggested that the definition of “qualified physician” is too broad and should be changed. This suggestion was not adopted because the term in question is only used to distinguish physicians who may provide medical services to covered employees from those who have been excluded from participation in the program in accordance with the procedures described in §§ 30.715 through 30.726 of these regulations. The term does not imply anything regarding the professional qualifications of a physician.

Section 30.5(dd)

One commenter requested that OWCP clarify if lung cancer has a required latency period as one of the specified cancers, while two advocacy groups disagreed with the required latency periods for those cancers designated in section 4(b)(2) of the Radiation Exposure Compensation Act, as amended (42 U.S.C. 2210 note). These two advocacy groups also requested that OWCP add “renal cancers” to the list of specified cancers to reflect the amendment to this provision of the Act made by section 2403(a) of Public Law 107-20. This section has been rewritten to clarify that as a specified cancer, lung cancer does not have a required latency period. However, the latency periods that are derived from the RECA are set by statute; OWCP does not have the authority to alter statutory provisions. The rewritten section also reflects the addition of renal cancers to the list of specified cancers, as well as the statutory modification of the provision for leukemia that was made by section 3151(a)(1) of Public Law 107-107.

Section 30.16

Two advocacy groups submitted comments asking that anti-retaliation provisions be included in the final regulations to protect claimants who file claims under the Act from reprisal in the workplace. OWCP does not have authority to implement such provisions by regulation in the absence of statutory authorization supporting such action. Moreover, other workplace discrimination legislation already exists to protect claimants from any retaliatory actions for filing a claim under the Act. The suggestion was therefore not adopted.

Sections 30.100(a) and 30.101(a)

One advocacy group disagreed with the requirement that section 5 RECA claimants must file an actual “claim” with OWCP before they can receive the smaller $50,000.00 lump-sum payments available under section 7384u(a) of the Act. However, unless it receives a “claim” for benefits under the Act, OWCP has no way of knowing who might be entitled to such benefits since it does not have access to the RECA claims information available to DOJ. Therefore, the suggestion to drop the requirement for filing a claim was not adopted.

One congressional representative asked if there was a time limit for filing claims of July 31, 2001. Although sections 7384s, 7384t and 7384u of the Act did not come into effect until July 31, 2001, there is no time limitation for filing claims in either the Act or the regulations, and claimants need not file their claims with OWCP prior to a particular date in order to be entitled to benefits. However, pursuant to section 7384t(d) of the Act, claimants authorized to receive medical benefits under the Act may only receive those benefits for the period subsequent to the date they submitted a claim.

Sections 30.100(c)(2) and 30.101(d)(2)

Three congressional representatives, seven labor organizations, six advocacy groups, two physicians, and three individuals requested that OWCP, under section 7384v of the Act, provide claimants with assistance in securing medical testing and diagnostic services by paying for or reimbursing for such testing and services. OWCP has made a policy decision to exercise its discretion to provide assistance by providing individual claimants with information and facilitating development of their EEOICPA claims. OWCP will not provide direct financial assistance for medical tests or diagnostic services because doing so would be financially impractical, would not be administratively feasible, and, in some instances, would duplicate services available under programs established by DOE or other employers that provide screening and medical monitoring of substantial numbers of former employees. Furthermore, evaluating numerous requests could substantially delay the program's overall claims adjudication process, thereby delaying payment of benefits in other deserving cases. Administrative difficulties would be particularly acute in regard to the wide variety of possible radiogenic cancers, since appropriate methods of diagnosis for these diseases can be controversial. Thus, the suggestion to pay for medical tests and diagnostic services was not adopted. However, OWCP will pay reasonable and necessary medical expenses, which could include tests and diagnostic services, in those cases that are

accepted, so long as the expenses were incurred subsequent to the filing of the claim. Language indicating that OWCP will provide information on the types and availability of medical testing and diagnostic services has been added to § 30.2(a).

Sections 30.105 and 30.106

Three commenters (one of these in two separate comments) questioned the reliability of the employment data to be provided by DOE in response to an alleged employment history provided in support of a claim, and a fourth commenter inquired about situations where DOE would not be able to verify an alleged employment history due to missing or incomplete records. OWCP anticipates that DOE will be able to fulfill its responsibilities under §§ 30.105 and 30.106 of the regulations in the majority of claims, and will work with DOE in an effort to obtain employment data sufficient to adjudicate those claims for which DOE may not have ready access to work records. To provide further guidance to claimants who may fall into this second group, new § 30.112 has been added to illustrate alternative methods of establishing the requisite period of covered employment in the absence of supporting DOE data. Former § 30.112 from the interim final rule has been renumbered as § 30.113 to accommodate this new section.

Section 30.111

Nine commenters, five labor organizations, seven advocacy groups, one physician and one congressional representative submitted a total of 24 comments on the collection and assessment of employment and medical evidence, as well as the assistance to be given by OWCP in that process. In order to meet its statutory responsibility to provide assistance to claimants, OWCP has held public informational meetings around the country. With DOE, OWCP has also established and staffed ten resource centers near large populations of potential claimants to maximize accessibility, and staff from these resource centers periodically travel to other areas where a significant number of potential claimants might reside. Finally, § 30.111 provides that OWCP will notify claimants of any deficiencies in their claims and provide an opportunity to correct such deficiencies.

In response to various comments received about § 30.111, the regulations have been revised by adding a new § 30.114 and clarifying former § 30.112 (renumbered as § 30.113 in accordance with the revisions noted above) to give additional guidance as to what type of evidence is required and how that evidence will be evaluated. Although the claimant's evidentiary burden of proof has not been changed, the regulations more clearly reflect the flexible standard for considering a claimant's evidence in view of the fact that there may be gaps in the record. As noted in §§ 30.105 and 30.106, covered employment is verified by DOE. It is necessary for DOE to have access to worker records to perform this task, but given the size and scope of the data it is impractical to impose restrictive timeframes on DOE to complete the verification process.

Section 30.115

Three labor organizations, one advocacy group and one commenter suggested that OWCP reconsider the use of dose reconstruction. “Dose reconstruction” is the term used to describe the process by which HHS will estimate an employee's radiation exposure history. The estimate produced in the dose reconstruction process is used by OWCP to determine whether an employee's cancer is at least as likely as not related to the employee's exposure to radiation at a covered facility. For claims seeking coverage for cancer based on the Special Exposure Cohort (SEC), no dose reconstruction is performed because coverage is presumed when a member of the SEC sustains a specified cancer after beginning employment at a covered facility. Section 7384n of the Act specifically requires that a determination concerning coverage of any cancer not subject to the SEC provisions be based upon guidelines established to determine the probability that a cancer was caused by exposure to radiation at a covered facility. That section also requires that a determination regarding the probability of causation incorporate the results of the dose reconstruction. Accordingly, since OWCP is not authorized to reconsider the use of dose reconstruction, the suggestion was not adopted. However, and as noted above, § 30.115 has been revised slightly to conform the dose reconstruction referral process with HHS's regulations at 42 CFR part 81.

Section 30.207

One physician, one advocacy group, one labor organization and one individual submitted five comments on the manner of diagnosing covered beryllium illnesses. The suggested changes to § 30.207 were not adopted because § 30.207 mirrors the language of section 7384l(8) and (13) of the Act for establishing beryllium illnesses; OWCP may not vary the requirements of these provisions by regulation.

Section 30.213

As noted above, § 30.213 has been divided for clarity into two sections to reflect the two methods to claim benefits for cancer, and the contents have been rearranged slightly. Section 30.213 in the interim final rule has been renumbered as § 30.214, new § 30.212 now specifically addresses claims for cancer not based on membership in the SEC, and § 30.212 in the interim final rule has been renumbered as § 30.213.

Two advocacy groups, one labor organization, and two commenters disagreed with the specific eligibility cutoff date for the members of the SEC who were exposed to ionizing radiation in the performance of duty related to one of three specified underground nuclear tests on Amchitka Island, Alaska. Five other commenters (one of whom is a physician), the same labor organization, one of the advocacy groups, and one of the two prior commenters also generally questioned the limited definition of who can qualify as a member of the SEC and therefore bypass the entire dose reconstruction process at HHS. The criteria for eligibility of members of the SEC set out in § 30.213 (renumbered as § 30.214 in accordance with the revision noted above) are governed by the explicit terms of section 7384l(14) of the Act, and may not be modified in any manner by regulation.

Section 30.214(b)

Two labor organizations and an advocacy group disagreed with the requirement in § 30.214(b) (renumbered as § 30.215(b) in accordance with the revision noted above) that employees seeking medical benefits for a consequential injury of a covered cancer submit rationalized medical evidence of a causal relationship between the consequential injury and the covered cancer. However, this evidentiary requirement is commonplace among State and Federal workers' compensation systems and does not exceed what is required to obtain these benefits under those other systems. OWCP further notes that under the Act, consequential injuries do not have any explicit diagnostic requirements that must be met (as do the covered occupational illnesses). Therefore, OWCP concludes that the current regulatory requirement for rationalized medical evidence of a causal relationship is reasonable and necessary, and the suggested changes have not been adopted.

Sections 30.215, 30.217 and 30.220

One lay representative suggested that OWCP consider adding a provision for coverage of consequential injuries of the various section 5 RECA illnesses. The interim final rule included regulatory provisions governing consequential injuries of covered cancers and covered beryllium diseases, but did not also specifically reference consequential injuries of either chronic silicosis or the section 5 RECA illnesses in §§ 30.215, 30.217 or 30.220. In order to clarify that medical benefits are available for consequential injuries of all the occupational illnesses covered under the Act, these sections (renumbered as §§ 30.220, 30.222 and 30.225 in accordance with the revisions noted above) have been revised, and new § 30.226 has been added to address the type of medical evidence that will be needed to establish a causal relationship between a consequential injury and a section 5 RECA illness.

Section 30.300

In the absence of any language mandating a particular adjudicatory structure in the Act, the interim final regulations established the current structure. Four congressional representatives, six labor organizations, seven advocacy groups, and two commenters (one of whom is a physician) submitted a total of 28 comments on the current structure for adjudicating claims filed under the EEOICPA. One congressional representative, one labor organization and four advocacy groups asked that OWCP devise a more elaborate administrative review process, while the other three congressional representatives, one of the four advocacy groups, and two other advocacy groups specifically recommended that administrative law judges be part of the adjudication process. Finally, one of the congressional representatives, all six labor organizations, all seven advocacy groups, and both commenters suggested that OWCP should add an independent review body to the adjudicatory process.

At the time that the interim final rule was issued, OWCP decided that it would be most efficient and beneficial to claimants to provide an expeditious administrative claims process that would allow claimants to seek review of adverse final agency decisions on their claims in Federal court without delay. This process provides claimants with an opportunity to challenge a recommended decision before a Final Adjudication Branch (FAB) reviewer, either through an oral hearing or through a review of the written record. Either mechanism allows a claimant to submit additional evidence or arguments to the FAB reviewer in a non-adversarial forum. This is unlike a proceeding before an administrative law judge where an adverse party would have an opportunity to object to the admission of evidence or provide evidence or arguments to refute the claimant's contentions. If the claimant disagrees with the final agency decision, he or she can seek review of the decision from a Federal court without delay. OWCP believes that utilizing administrative law judges or an independent review body would unnecessarily complicate and delay the adjudication process to the detriment of claimants. None of the commenters provided a convincing justification to reverse OWCP's initial decision concerning this adjudicatory structure, and therefore the suggestions were not adopted.

Section 30.305

Four labor organizations, two advocacy groups, one physician, and three individuals suggested that time limits be placed on the claim adjudication process. Time limits are currently in place with respect to recommended decisions pending either a hearing or a review of the written record before the FAB in § 30.316(c). These time limits provide that any recommended decision pending either a hearing or a review of the written record at the FAB for more than a specified period will be deemed to be a final decision of the FAB. Due to the wide range of claim types and the complexities involved in developing and establishing certain of these claims, along with the fact that Federal agencies other than OWCP are involved in the claim process, OWCP has decided against establishing strict time limits to govern the complete adjudicatory process, and did not adopt the suggestion. However, OWCP has established performance goals under the Government Performance and Results Act to monitor the efficiency of the claims adjudication process.

Sections 30.306 and 30.316(b)

Seven labor organizations, three advocacy groups and one physician suggested that the regulations require detailed findings and grounds in all recommended decisions denying a claim and in any final decision issued by the FAB. However, § 30.306 already requires that all recommended decisions contain findings of fact and conclusions of law; this existing requirement provides a claimant with the detailed findings requested by the commenters. Therefore, further descriptions of these requirements for final decisions of the FAB does not appear necessary, and the suggestions were not adopted.

Section 30.310(b)

One congressional representative, three labor organizations, and three advocacy groups voiced concerns about the limited time period for raising objections to findings of fact and/or conclusions of law contained in a recommended decision with the FAB. The 60-day period was designed to expedite the adjudicatory process and thus it has not been deemed necessary to modify this time frame. However, to address the concerns raised by these commenters, OWCP has provided in new § 30.320 a procedure for reopening FAB decisions at any time in the event that new evidence is discovered or circumstances have changed. In addition, OWCP has modified § 30.310(b) by removing the requirement that the claimant raise a specific objection to a particular finding of fact or conclusion of law as this requirement has not proved effective in practice. Sections 30.312 and 30.314(b) have also been revised to remove similar requirements for specific objections in those two sections.

One of these three advocacy groups also recommended that the FAB provide hearings to all claimants automatically. Removing the requirement that a claimant raise a specific objection will allow any claimant who is dissatisfied with a recommended decision to receive a hearing upon a timely request. To date, less than 2% of claimants who have received a recommended decision have requested hearings before the FAB. Therefore, it does not seem reasonable to require OWCP to devote the resources necessary to provide hearings to the vast majority of claimants who either request a review of the written record or do not object to the recommended decision. Accordingly, since the suggestion to provide hearings to every claimant automatically would hamper the ability of the FAB to issue final decisions on claims, especially on claims that have been accepted for the payment of benefits, it was not adopted.

Section 30.311(a)

One congressional representative disagreed with the provision in § 30.311(a) directing the FAB to issue a decision accepting the recommendation of the district office if the claimant did not file timely and specific objections to findings of fact and/or conclusions of law contained in the recommended decision, even if the claimant had

requested a hearing. Consistent with the revision to § 30.310(b), this section has been revised to remove the requirement for a specific objection. As a result, the FAB will now issue a decision that accepts the recommendation of the district office if the claimant neither requests a hearing nor submits a general objection to the recommended decision within the requisite time period.

Sections 30.313 and 30.314(a)

Five labor organizations, four advocacy groups, and one physician suggested that EEOICPA claimants should have the right to a formal adjudicative hearing to challenge findings and build a record for possible judicial review. The administrative claims process within the Department is intended to be non-adversarial and has been structured as an informal, streamlined process allowing for the prompt adjudication of claims. The regulations in §§ 30.313 and 30.314(a) allow claimants to introduce additional written evidence and/or testimony and give FAB reviewers the discretion to conduct hearings in a manner that ensures that a complete record is made sufficient for judicial review. Since there is nothing in the Act that requires formal adjudicative hearings, it does not appear necessary to create a more elaborate and less expeditious administrative claims process, as has been requested.

Section 30.314

Four labor organizations and three advocacy groups (one of these in two separate comments) suggested that § 30.314(a), which provides that the FAB reviewer retains complete discretion to set the time and place of the hearing, also include a requirement that the reviewer shall attempt to schedule the hearing at a location that is convenient for the claimant. The current practice of OWCP is to schedule the FAB hearing, whenever possible, at a location that is within a reasonable distance from the claimant's residence. Based on the above comments, OWCP is persuaded that this policy should be set forth with more specificity in the rule, and § 30.314(a) has been revised accordingly.

One of these four labor organizations, the three advocacy groups, one congressional representative, and a fourth advocacy group also suggested that FAB hearing procedures be spelled out in the regulations. However, § 30.314 is purposefully formulated to permit maximum flexibility and gives the FAB reviewer complete discretion, among other things, to schedule and conduct hearings in a fair and expedient manner. Since the claims adjudication process is non-adversarial and the informal FAB hearing process is working effectively, OWCP sees no reason to revise § 30.314 to create a formal and less flexible hearing process.

Two of the first three advocacy groups questioned the requirement in § 30.314(e) that the claimant must submit his or her comments regarding the hearing transcript to the FAB reviewer within 20 days from the date that the transcript is sent to the claimant. The commenters suggested that this requirement be changed to within 20 days from the date that the transcript is received by the claimant, citing the possibility of slow mail. A clear fixed date set by OWCP is necessary to ensure that no bottlenecks are created in the claims adjudication process, and thus, the above suggestion has not been adopted.

Section 30.316(c)

A congressional representative, a labor organization and an advocacy group expressed concerns about the procedural mechanism by which any recommended decision that is still pending at the FAB for more than one year is deemed to be a final decision of the FAB. The labor organization believed that the FAB could take advantage of the mechanism by intentionally delaying issuing final decisions on claims, thereby rendering the opportunity to raise objections to the recommended decision moot. However, this mechanism actually protects claimants against excessive delay by the FAB because it ensures that claimants receive a final agency decision on their claims within a time certain, and permits them to seek judicial review, within a reasonable time following the issuance of a recommended decision. Further, as noted above, OWCP has established performance goals under the Government Performance and Results Act to monitor the efficiency of the claims adjudication process, and those performance goals also cover the activities of the FAB. There have been no demonstrated incidents of delay and therefore it does not appear necessary to modify this mechanism. Nevertheless, to more accurately reflect the FAB's current performance goals for issuing final decisions and to accommodate the changes regarding specific objections described above, the event that will commence the one-year period has been changed from the receipt of the case file from the district office to the receipt of the written submission described in § 30.310, or the expiration of the 60-day period in that same section in the absence of a written submission.

Section 30.318

Four congressional representatives, six labor organizations, two advocacy groups and one physician suggested that the regulations should permit claimants to challenge the dose reconstruction methodology before the FAB. This suggestion was not adopted because both the development and implementation of the dose reconstruction methodology have been established pursuant to regulations promulgated by HHS (42 CFR part 82) and are outside the scope of the Department's authority under E.O. 13179.

Section 30.320

One congressional representative, six labor organizations, five advocacy groups, and two physicians disagreed with the one-year period for claimants to seek modification set out in § 30.320, noting that it is likely that after the expiration of such period, there will be changes in the science related to dose reconstruction and the disclosure of previously unavailable exposure and employment information that might justify reopening of the claim. In addition, the same six labor organizations, three of the five advocacy groups, and one of the two physicians asserted that reopening of the claim or the filing of a new claim might be warranted where a claimant with a cancer claim is denied benefits but at a later date falls within a class of employees that is added to the SEC, as contemplated by section 7384q(b) of the EEOICPA. OWCP is persuaded by these comments; therefore, § 30.320 has been revised to abandon the one-year modification limitation for claimants. Revised § 30.320(b) allows claimants to ask OWCP to reopen their claims at any time if they submit new and material evidence of covered employment or exposure to radiation, beryllium or silica; or if they identify a material change in the probability of causation guidelines, a material change in the dose reconstruction methods or a material addition of a class of employees to the SEC that occurred after the FAB issued a final decision on their claim. If the required showing of materiality is met, the claim will be reopened and returned to the district office for a new determination on the merits of the claim. OWCP will closely coordinate with HHS and reopen cases on the Director's own authority under revised § 30.320(a) when factors such as changes in HHS methodology or the discovery of new relevant information warrants doing so (in those cases, it will

not be necessary for claimants to take any action to receive a new decision).

Section 30.400

One advocacy group and one commenter suggested that OWCP reimburse employees for medical expenses they incurred due to a covered occupational illness prior to the date they filed a claim for benefits with OWCP, while a lay representative generally urged that a broad scope of medical benefits should be made available to covered employees. The availability of medical benefits is governed by section 7384t of the Act, which explicitly states that eligibility to receive such benefits will commence no earlier than the date on which the claim is filed. Therefore, OWCP cannot alter this statutory limitation through regulation. In addition, § 30.400 already notes the broad scope of medical benefits that are payable under the Act, and provides that a covered employee is entitled to receive all medical treatment prescribed or recommended by a qualified physician that OWCP considers necessary to treat his or her covered illness. In light of this, it does not appear necessary to modify § 30.400 as requested.

Three other commenters suggested that OWCP issue medical benefits identification cards (similar to health insurance identification cards) to covered employees, to make it easier for such employees to obtain medical benefits. Subsequent to the promulgation of the interim final regulations, OWCP decided to utilize such cards. However, because medical benefits are only available for conditions covered by the Act, rather than for almost all conditions as is the case with health insurance, a covered employee's medical benefits identification card only lists the specific condition(s) for which medical benefits are available for that covered employee.

Section 30.403

Four labor organizations, four advocacy groups and one commenter suggested that family members be compensated for providing personal care services. Section 30.403 does not preclude family members from being paid for providing personal care services as long as they have received the necessary training. This will help ensure that covered employees are provided proper care for any medical conditions that are covered by the Act. Therefore, the regulation has not been changed.

Section 30.404

Four labor organizations, one advocacy group, one physician, and four individuals disagreed with the general travel limit of 25 miles set forth in § 30.404, noting that employees who reside in remote geographic areas where medical services are limited, or who require the services of a small number of recognized medical specialists, should not be denied reimbursement for travel of greater distances to obtain appropriate medical treatment. While OWCP's current policy is to take into consideration such demonstrated needs of individual claimants, the above comments indicate that there is a need to clarify the current rule. As modified, § 30.404(a) establishes a roundtrip distance of up to 200 miles as what OWCP will generally consider a reasonable distance to travel. Section 30.404(b) further provides that if travel of more than 200 miles is contemplated, or if air travel or overnight accommodations will be needed, the employee must request prior approval from OWCP demonstrating the circumstances and necessity for such travel.

Three labor organizations stated that § 30.404 should include information on where employees can obtain the standard form for requesting medical travel refunds. Section 30.404(c) indicates that the form can be obtained from OWCP.

One advocacy group and one individual commenter indicated that OWCP should pay the travel expenses of a person who accompanies an employee on a trip to obtain medical treatment. Under § 30.404, OWCP has the discretion to determine what travel expenses are “reasonable and necessary,” and prefers to maintain the flexibility to make such determinations on a case-by-case basis. Therefore, no change was made to this section.

One individual asserted that OWCP should compensate employees for any lost wages resulting from absences from work to undergo diagnostic testing, and other persons for any lost wages resulting from absences from work in order to accompany employees on medical visits to obtain diagnostic testing. As set forth in § 30.412 of the regulations, OWCP provides reimbursement for actual wages lost by employees for the time needed to submit to a second opinion or referee examination required by OWCP. As for the lost wages of persons accompanying employees, OWCP has the discretion under § 30.404 to determine if these constitute “reasonable and necessary” travel expenses and prefers to maintain the flexibility to make such determinations in individual situations. As a result, no change was made to this section.

Section 30.410

Four labor organizations and two advocacy groups did not believe that OWCP should have the authority to refer claimants to multiple “second opinion” medical examinations by physicians of its choosing, even at the government's expense. However, this authority is necessary to enable OWCP to obtain additional medical evidence in situations where a claimant has submitted some medical evidence in support of a claim, but the evidence is of insufficient probative value to allow the claimant to meet his or her burden of proof. If the claimant could not submit the additional evidence necessary to meet this burden, and OWCP could not obtain it through a second opinion examination, OWCP would have to deny the claim. Since it is OWCP's policy to assist claimants in the development of their claims, the authority to refer claimants for second opinion medical examinations is one of the tools OWCP needs to efficiently carry out this policy.

Three of these same four labor organizations and two different advocacy groups also suggested that claimants should be allowed to have someone other than a physician of their choosing present during a second opinion examination. The restriction on who may accompany claimants during these examinations was intended to minimize the possibility of disruptions, but given the nature of the claimant population and the likelihood of this occurring, OWCP is persuaded that the restriction is not necessary for all second opinion referrals. However, OWCP will retain the restriction for use if the person accompanying the claimant disrupts the examination and OWCP has to refer the claimant to a different physician for the requested second opinion examination.

Section 30.411

Three congressional representatives, five labor organizations, four advocacy groups and three commenters (two of whom are physicians) suggested that OWCP utilize a joint naming process whereby the claimant and OWCP would agree on a physician to perform a referee examination needed to resolve a conflict in the medical evidence. OWCP does not see the utility of this suggestion, especially since the EEOICPA claims adjudication process is non-adversarial and OWCP does not oppose a claim for benefits. Furthermore, this more

complex manner of selecting physicians to perform referee examinations would add to the length of time necessary to adjudicate the claim without providing any tangible benefit. Accordingly, the suggestion was not adopted, and OWCP will continue to select all physicians performing referee examinations from a pool of specialists (consisting of both Board-certified physicians and other qualified specialists) who have expressed a willingness to perform these types of examinations. OWCP selects physicians from the pool on a strict rotational basis according to medical specialty and geographic location, and periodically reviews the pool for quality control purposes and to allow other qualified physicians an opportunity to join the pool.

Three of these same five labor organizations and two of the same four advocacy groups also suggested that claimants should be allowed to have someone of their own choosing present during a referee examination. As was the case with second opinion examinations, the restriction against anyone accompanying a claimant during a referee examination was intended to minimize the possibility of disruptions, but given the nature of the claimant population and the likelihood of this occurring, OWCP is persuaded that the restriction is not necessary for all referee examination referrals. However, consistent with its decision regarding the limitation in § 30.410, OWCP will retain the restriction for use if the person accompanying the claimant disrupts the examination and OWCP has to refer the claimant to a different physician for the requested referee examination.

Section 30.412

One advocacy group suggested that OWCP consider paying for a family member to accompany all employees on any directed medical examinations that would necessitate either an overnight stay away from home or air transportation. OWCP does not consider a blanket rule of this sort to be justifiable, since it is clear that while many employees may be so infirm as to require somebody to accompany them to such an examination, it is equally clear that others will not. Therefore, OWCP prefers to maintain the discretion in this section to determine whether such expenses are “reasonable and necessary,” and the suggestion has not been adopted.

Sections 30.500, 30.501 and 30.502

A total of 143 comments addressed the description of how survivors are defined and paid in §§ 30.500, 30.501 and 30.502: Three from congressional representatives; eight from labor organizations; 10 from advocacy groups; four from physicians; four from attorneys; one from a lay representative; and 112 from other individuals. However, these comments were rendered moot following the enactment of section 3151(a)(4) of Public Law 107-107, which amended the survivor provisions in sections 7384s(e) and 7384u(e) of the EEOICPA. To conform the final regulations to the amended provisions, §§ 30.500 through 30.502 have been completely rewritten and the prior definition for “widow or widower” from § 30.5(gg) of the interim final regulations has been modified and consolidated with the other statutory definitions in § 30.500. As a result of the latter change, former § 30.5(hh) has been renumbered as § 30.5(gg) in the final regulations.

Section 30.505(c)

Two advocacy groups, one attorney and one commenter disagreed with the provision in § 30.505(c) (renumbered as § 30.505(b) in accordance with the revision noted above) for an offset of EEOICPA benefits against any amounts received for an occupational illness in a final judgment or settlement in litigation. This same commenter, and five other commenters, also questioned the justification for any offset of EEOICPA benefits. Section 7385 of the Act requires an offset of EEOICPA benefits if certain other payments have been received, and provides the necessary statutory justification for the offset process. However, section 7385 does not describe how this process should occur, and the above comments indicate the need for a more detailed description of how, and to what extent, OWCP will offset EEOICPA benefits. Therefore, § 30.505(b) now contains a more thorough definition of the type of payment that will necessitate an offset, and how OWCP will determine the value of any such payment. It also provides for deductions from the amount to be offset (for reasonable attorney's fees and itemized costs of suit) in order to arrive at the amount of the required offset of EEOICPA benefits. The regulation also provides that an offset will result in the reduction of an unpaid lump-sum payment first. Finally, this paragraph indicates that OWCP will not offset any EEOICPA benefits if a claimant has already had his or her benefits under section 5 of the RECA reduced to reflect a payment that would otherwise require an offset of EEOICPA benefits.

Section 30.505(d) and (f)

One lay representative inquired whether OWCP would pay survivor benefits in stages, or if it would wait until it was ready to pay all survivors of a single deceased covered employee at the same time. Section 30.505(d) (renumbered as § 30.505(c) in accordance with the revision noted above) provides that “No payment shall be made until OWCP has made a determination concerning the survivors related to a respective claim for benefits.” This restriction is necessary to conserve administrative resources and has been retained; however, there is no requirement that OWCP wait to actually pay all the survivors of a deceased covered employee at the same time. Accordingly, a survivor who signs and returns the acceptance form quickly may be paid his or her share of the compensation payment before another survivor who waits the full 60 days before signing and returning the form. In cases with multiple claimants, OWCP will determine the share of the lump-sum amount, if any, to which each survivor is entitled.

The same lay representative also questioned the prohibition in § 30.505(f) (renumbered as § 30.506(c) in accordance with the revision noted above) against distributing rejected shares of compensation payments to other eligible survivors. Sections 7384s(e)(1)(B) and 7384u(e)(1)(B) both require the payment of equal shares of a single compensation payment to “all children of the covered employee who are living at the time of payment,” not all children of the covered employee who are living at the time of payment and who do not reject their shares. Therefore, the prohibition against distributing rejected shares of compensation is established by the terms of the Act itself, and no change was made to this section.

Section 30.506

Two physicians, one advocacy group, one labor organization and one commenter had questions regarding the provision of medical benefits to covered employees whose sole occupational illness is beryllium sensitivity. Section 30.506 (renumbered as § 30.507 in accordance with the revision noted above) stated that these employees were not entitled to any medical benefits other than beryllium sensitivity monitoring. However, because section 7384s(a)(2) of the Act only replaces the lump-sum payment provided for under section 7384s(a)(1) with beryllium sensitivity monitoring and is silent with respect to entitlement to medical

benefits, covered employees whose sole occupational illness is beryllium sensitivity should be provided medical benefits for that condition. Therefore, § 30.507 has been revised to be consistent with this interpretation and now states that covered employees whose sole occupational illness is beryllium sensitivity are entitled to the same medical benefits provided to other covered employees. The estimated marginal cost of providing these benefits (which would usually be for low-cost prescription steroid medications) will be negligible from a budgetary standpoint.

Section 30.601

One lay representative commented on this section by asking who would represent mentally incompetent claimants, and if she could represent claimants in the EEOICPA claim process. Serving as a legal representative of a mentally incompetent person is a matter of state law and is thus outside the scope of these regulations. Section 30.601, which addresses the question of who may serve as a representative in the claims process, does not bar lay representatives from providing representation to EEOICPA claimants. On a related issue, three advocacy groups and three individuals submitted comments on the statutory attorney fees cap for representation of EEOICPA claimants. However, following publication of the interim final rule, Congress amended section 7385g of the Act in section 3151(a)(6) of Public Law 107-107. Therefore, new § 30.603 has been added to reflect the current statutory limits on attorney fees in amended section 7385g.

Section 30.609

One advocacy group disagreed with the requirement that claimants report (for possible offset of EEOICPA benefits) awards they receive due to medical malpractice in treating a covered occupational disease. However, since these awards are clearly payments “made pursuant to a final award or settlement on a claim” that has its genesis in an occupational illness covered by the Act, no change was made to this requirement so OWCP will be able to fulfill its offset responsibilities under section 7385 of the EEOICPA.

Sections 30.615 and 30.616

Two advocacy groups, two attorneys and three other commenters suggested possible changes to §§ 30.615 and 30.616 (rewritten as §§ 30.615 through 30.619 as noted above). These suggestions were rendered moot by section 3151(a)(5) of Public Law 107-107, which amended the election of remedy provisions in section 7385d of the EEOICPA. To conform the final regulations to these amendments, prior §§ 30.615 and 30.616 have been rewritten as §§ 30.615 through 30.619, and prior § 30.617 has been renumbered as § 30.620 to accommodate these changes.

Section 30.701(c)

One physician and one advocacy group noted that there is no diagnostic code for beryllium sensitivity in the “International Classification of Disease, 9th Edition, Clinical Modification” (ICD-9-CM), and that medical providers are required to provide such a code whenever they submit bills to OWCP for payment. To address this, OWCP has designated the V81.4 classification “Other and unspecified respiratory conditions” as the appropriate ICD-9-CM classification for beryllium sensitivity. Use of this code will both allow OWCP to track accepted beryllium sensitivity cases, and to pay medical providers for pre-approved diagnostic tests to monitor the employee for signs of chronic beryllium disease.

Sections 30.705 through 30.710

One advocacy group questioned OWCP's decision to base the medical fee schedule for professional medical services and inpatient medical services on cost data supplied by the Centers for Medicare and Medicaid Services (CMS) in light of the increased cost for those services in remote geographical areas. However, § 30.707(b) provides that the “relative value units” assigned by CMS to professional medical services will be multiplied by the Geographic Practice Cost Indices for Metropolitan Statistical Areas as devised for CMS, and this adjustment should be sufficient to accommodate increased costs for these services in remote areas. Further, § 30.710 indicates that the fee schedule for inpatient medical services will be based on hospital-specific cost factors that are part of the CMS Prospective Payment System OWCP will use to pay for hospital discharges. In either instance, the fee schedules may be adjusted if OWCP deems it necessary or appropriate. Therefore, the suggestion to use a different set of cost data was not adopted.

II. Miscellaneous Comments

Several of the 216 timely comments the Department received raised issues that either were not addressed in the interim final regulations or involved extraneous matters. The Department's analysis of these miscellaneous comments follows:

The Rulemaking Process

OWCP received comments from two labor organizations, four advocacy groups and one individual commenter on the rulemaking process. The various comments requested that public hearings be held on the regulations and that a formal advisory committee be appointed, and suggested that the interim final regulations be effective for a short time period, to be followed by a notice and comment period prior to publication of the final rule. Because of the time constraints set forth in E.O. 13179, which required publication of regulations by May 31, 2001 and the establishment of a functioning program by July 31, 2001, OWCP chose to publish an interim final rule without first publishing a notice of proposed rulemaking. However, because OWCP both understands and appreciates the importance of public input in the rulemaking process, it provided an extensive comment period of 120 days to receive input from the public on the regulations. Also, OWCP staff members participated in numerous public meetings across the United States to publicize and explain the Act and the regulations. All comments received during the comment period have been thoroughly reviewed and taken into consideration for purposes of the rulemaking process and publication of this final rule.

Unlike the requirements in 42 U.S.C. 7384n(c)(2) and (d)(2) that the regulations promulgated by HHS pursuant to section 7384n(b) and (d)(1) be reviewed by the Advisory Board on Radiation and Worker Health that was established as directed by section 7384o, there is no requirement in section 7384d that the regulations promulgated by DOL for the administration of the program be reviewed by any advisory board. As noted above, a lengthy period for public comments was provided in connection with the Interim Final Regulations, and regular and frequent communications occur with HHS and DOE. DOL also attends and participates in the public meetings of the Advisory Board on Radiation and Worker Health. Under these circumstances, DOL does not see the utility in adding an advisory committee to this rulemaking process.

Coordination of Benefits

Three individuals submitted comments suggesting that there be no coordination of benefits for claimants with beryllium illnesses, and three other individuals submitted general questions regarding coordination of benefits with State workers' compensation program

benefits. These comments involve the operation of section 7385h of the Act, which deals with the interplay between the Act, State law and private insurance contracts; however, OWCP did not address this issue in the interim final rule, nor does it do so in this final rule.

Designating Facilities

One attorney (in two separate comments), the City Council of the City of Niagara Falls, and eight individuals requested that the time frames indicated by DOE for certain facilities be expanded and/or that specific new facilities be included on the list of covered facilities maintained by DOE. These recommendations have been forwarded to DOE, which is actively soliciting information from the public as it continues its research efforts regarding facility time frames and additions or deletions to the covered facilities list.

Benefit Levels

One lay representative and eight other commenters made suggestions about the level of benefits to be provided to successful claimants. However, since the benefit levels are set by the terms of the Act, the regulations cannot adopt a different level of benefits unless the Act itself is amended. Accordingly, the suggested changes were not adopted.

Coverage

One congressional representative, two physicians, the Department of Defense, five advocacy groups, and 31 commenters made suggestions about which workers should be covered by the Act. However, the Act mandates the categories of workers covered and the regulations cannot be changed to either expand or restrict the categories of covered workers unless the Act is amended. Therefore, the suggested changes have not been made.

Covered Illnesses

Two advocacy groups, a physician, an attorney and 19 individuals suggested that the occupational illnesses covered by the Department's program be expanded to include additional illnesses that may have resulted from the exposure of employees to harmful substances while in the performance of duty at covered facilities under the Act. However, OWCP has no authority to implement any such changes in the absence of legislative changes to the Act. Furthermore, Part D of the Act already provides the opportunity for claimants to obtain assistance from DOE in filing for benefits under appropriate State workers compensation programs in connection with the exposure of DOE contractor employees to toxic substances at DOE facilities.

III. Publication in Final

The Department of Labor has determined, pursuant to 5 U.S.C. 553(b)(B), that good cause exists for waiving public comment on this final rule with respect to the following changes: (1) Those needed to conform the regulations to the sections of the EEOICPA that were amended by Public Laws 107-20 and 107-107; (2) those needed to conform the regulations to the probability of causation guidelines issued by HHS; (3) corrections of typographical errors; and (4) minor wording changes and clarifications that do not affect the substance of the regulations. For these changes, publication of a proposed rule and solicitation of comments would be neither necessary nor fruitful.

IV. Statutory Authority

Section 7384d of the EEOICPA provides the general statutory authority, which E.O. 13179 allocates to the Secretary, to prescribe rules and regulations necessary for the administration and enforcement of the Act. Sections 7384t and 7384u of the EEOICPA provide specific authority regarding medical treatment and care, including determining the appropriateness of charges. The Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3701
et seq.
), authorizes imposition of interest charges and collection of debts by withholding funds due the debtor.

V. Paperwork Reduction Act

This final rule contains information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA). The information collection requirements set out in §§ 30.401, 30.404, 30.420, 30.421, 30.700, 30.701 and 30.702(a) of this rule were submitted to and approved by OMB under the PRA, and the currently approved collections in OMB Control Nos. 1215-0054 (expires June 30, 2004), 1215-0055 (expires November 30, 2003), 1215-0137 (expires February 28, 2005), 1215-0176 (expires December 31, 2003), and 1215-0194 (expires January 31, 2004) were revised to include the added EEOICPA respondents. No public comments were received regarding this group of information collection requirements, and they were not affected by any of the substantive changes that have been made in this final rule.

The information collection requirements in §§ 30.100, 30.101, 30.102, 30.111, 30.113, 30.114, 30.206, 30.207, 30.212, 30.214, 30.215, 30.221, 30.222, 30.226, 30.415, 30.416, 30.417, 30.505, 30.620 and 30.702(b) of this rule were also submitted to and approved by OMB under the PRA and were assigned OMB Control No. 1215-0197 (expires July 31, 2004). No public comments were received regarding this second group of information collection requirements, and they were not affected by any of the substantive changes that have been made in this final rule. However, this final rule revises the currently approved collection in OMB Control No. 1215-0197 by adding three new information collection requirements, and this revision of a currently approved collection will be submitted to OMB for review under the PRA upon publication of the rule. No person is required to respond to a collection of information request unless the collection of information displays a valid OMB control number. The new information collection requirements are in §§ 30.112 and 30.213, and they relate to information required to be submitted by claimants as part of the EEOICPA claims adjudication process. One of the new collections will be implemented without any specific form (see section A below). The Department is proposing to create two new forms to implement the other new collections (see sections B and C below).

A. Supplemental Employment Evidence (§ 30.112)

Summary:
Employees and/or survivors claiming benefits under the EEOICPA must establish, among other things, an employment history that includes at least one period of covered employment. To do so, claimants submit either a Form EE-3 listing periods of alleged covered employment, or a Form EE-4 containing basic employment information in situations where specific employment information is not available. If the employment history provided on Form EE-3 or EE-4 cannot be verified, OWCP may ask the claimant to provide supplemental employment evidence in support of the alleged history. After it reviews the evidence of record on this point, OWCP will determine whether a period of covered employment has been established by a preponderance of the evidence.

Need:
Documentation of a history of covered employment is one of the elements that must be met to establish entitlement to benefits under the EEOICPA.

Respondents and proposed frequency of response:
It is estimated that 3,870

respondents annually will submit this collection of information once.

Estimated total annual burden:
The time required to review instructions, search existing data sources, gather the data needed, and complete and review each collection of this information is estimated to take an average of 30 minutes per response for a total annual burden of 1,935 hours.

B. Lung Cancer Information: Form EE/EN-8 (§ 30.213)

Summary:
Guidelines issued by HHS require OWCP to ask claimants for information regarding the employee's smoking history before OWCP can determine the probability of causation for lung cancer (the disease classified as “lung cancer” includes primary cancer of both the trachea and bronchus). This information is not requested if the employee is a member of the Special Exposure Cohort. If the claim is for lung cancer (or a secondary cancer for which lung cancer is a likely primary cancer), OWCP will send the claimant a Form EE/EN-8. Form EE/EN-8 informs the claimant that to determine the probability of causation of the claimed cancer, OWCP needs to know the employee's smoking history, and requests that the claimant submit the necessary information. All respondents will be required to certify that the information provided on Form EE/EN-8 is accurate and true.

Need:
OWCP cannot determine the probability of causation for lung cancer without this information.

Respondents and proposed frequency of response:
It is estimated that 3,021 respondents annually will file one Form EE/EN-8.

Estimated total annual burden:
The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE/EN-8 is estimated to take an average of 5 minutes per response for a total annual burden of 252 hours.

C. Skin Cancer Information: Form EE/EN-9 (§ 30.213)

Summary:
Guidelines issued by HHS require OWCP to ask claimants for information regarding the employee's race/ethnicity before OWCP can determine the probability of causation for skin cancer. If the claim involves skin cancer (or a secondary cancer for which skin cancer is a likely primary cancer), OWCP will send the claimant a Form EE/EN-9. Form EE/EN-9 informs the claimant that in order to determine the probability of causation of the claimed cancer, OWCP needs to know the employee's race/ethnicity, and requests that the claimant submit the necessary information. All respondents will be required to certify that the information provided on Form EE/EN-9 is accurate and true.

Need:
OWCP cannot determine the probability of causation for skin cancer without this information.

Respondents and proposed frequency of response:
It is estimated that 1,057 respondents annually will file one Form EE/EN-9.

Estimated total annual burden:
The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form EE/EN-9 is estimated to take an average of 5 minutes per response for a total annual burden of 88 hours.

D. Total Annual Burden and Request for Comments

Total public burden:
The new information collection requirements being added to OMB Control No. 1215-0197 have a total public burden hour estimate of 2,275. Using the current National average hourly earnings of $14.00, the total annual public cost for these new information collection requirements is estimated to be $31,850.00. There are no recordkeeping or collection costs associated with the new information collection requirements described above. The only operation and maintenance cost will be for postage and mailing. An estimated annual total of 7,948 mailed responses to these new information collection requirements at $0.37 (postage) + $0.03 (envelope) per response would be $3,179.20.

Request for comments:
The public is invited to provide comments on the above-noted revision to the currently approved collection in OMB Control No. 1215-0197 so that the Department may:

(1) Evaluate whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimates of the burdens of the collections of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility and clarity of the information to be collected; and

(4) Minimize the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

Send comments regarding this burden estimate, or any other aspect of this revision to the currently approved collection in OMB Control No. 1215-0197, including suggestions for reducing this burden, to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Employment Standards Administration, Washington, DC 20503 no later than January 27, 2003.

VI. Executive Order 12866

This rule is being treated as a “significant regulatory action” within the meaning of E.O. 12866 because it is economically significant, as defined in section 3(f)(1) of that Order. The payment of the benefits provided for by the EEOICPA, through the program administered pursuant to this regulatory action, will have an annual effect on the economy of $100 million or more. However, the final rule will not adversely affect in a material way the economy, a sector of the economy, productivity, jobs, the environment, public health or safety, or State, local, or tribal governments or communities, as required by section 3(f)(1) of E.O. 12866. The proposed rule is also a “significant regulatory action” because it meets the criteria of section 3(f)(4) of that Order in that it raises novel or legal policy issues arising out of the legal mandate established by the EEOICPA. The Department has also concluded that this final rule constitutes a “major rule,” as that term is defined in the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804(2)), because of the effect on the economy noted above.

Based upon the factors and assumptions set forth below, the Department's estimate of the aggregate cost of benefits and administrative expenses of this final regulatory action implementing the EEOICPA is, in millions of dollars (estimates for FY2004, FY2005 and FY2006 are preliminary and will be reviewed during the budget formulation process):

FY2002
FY2003
FY2004
FY2005
FY2006

Admin
$136
$100
$55
$50
$33

Benefits
769
758
578
353
250

The Department's estimate of the benefits to be paid pursuant to the EEOICPA and of its administrative costs of providing those benefits is based on data collected from other Federal agencies, assumptions regarding the incidence of cancer, beryllium disease and silicosis in the covered population, life expectancy tables, and its experience in estimating administrative and medical costs of workers' compensation programs. Specifically, benefit estimates for cancer claims are based on figures provided by DOE concerning the number of DOE/contractor employees, known cancer incidence and survival rates in the general population obtained from the National Cancer Institute. Based on the number of claims likely to be accepted, the cost of lump-sum payments to these claimants is easily determined. These benefit estimates further reflect contemplated medical costs of $1,500 per year for 90% of the covered claimants, while the remaining 10% will incur $125,000 in medical costs for the year because they are undergoing intensive in-hospital medical treatment.

Benefits estimates for beryllium exposure are based on known incidence rates, known numbers of claimants with beryllium disease, exposed population figures (all of which were obtained from DOE), and medical costs of $3,000 per year for beryllium sensitivity, $4,000 per year for mild chronic beryllium disease, and $9,000 per year for more severe chronic beryllium disease. Benefit estimates for silicosis are based on figures obtained from DOE concerning the number of exposed employees and the expected incidence of silicosis, and medical costs of $4,000 per year. Benefit estimates for the claims based on the receipt of an award pursuant to section 5 of the RECA are based on figures for the number of claims provided by DOJ, and $4,000 per year in medical costs.

Because the statute provides benefits for covered workers and their survivors who were exposed to radiation, beryllium and silica during a period of almost 60 years, an assumption was made that DOL would receive thousands of claims in the initial few years after the effective date of the statute, and that the number of claims would decrease substantially after the first few years. Administrative cost estimates were developed based upon DOL's experience in administering other workers' compensation programs, using calculations of the number of incoming claims and forecasting the necessary full-time equivalents and other resources necessary to efficiently administer the program.

No more extensive economic impact analysis is necessary because this regulatory action only addresses the transfer of funds from the Federal government to individuals who qualify under the EEOICPA and to providers of medical services in that program. As noted above, this regulatory action has no affect on the functioning of the economy and private markets, on the health and safety of the general population, or on the natural environment. In addition, because this regulation implements a statutory mandate, there are no feasible alternatives to this regulatory action. Finally, to the extent that policy choices have been made in interpreting statutory terms, those choices have no significant impact on the cost of this regulatory action because they do not involve either the number of eligible recipients or the level of benefits to which they are entitled.

OMB has reviewed this final rule for consistency with the President's priorities and the principles set forth in E.O. 12866.

VII. Small Business Regulatory Enforcement Fairness Act

As required by Congress under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
et seq.
), the Department will report to Congress promulgation of this final rule prior to its effective date. The report will state that the Department has concluded that this final rule is a “major rule” because it will likely result in an annual effect on the economy of $100 million or more.

VIII. Unfunded Mandates Reform Act of 1995

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
et seq.
) directs agencies to assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector, “other than to the extent that such regulations incorporate requirements specifically set forth in law.” For purposes of the Unfunded Mandates Reform Act, this final rule does not include any Federal mandate that may result in increased annual expenditures in excess of $100 million by State, local or tribal governments in the aggregate, or by the private sector.

IX. Regulatory Flexibility Act

The Department believes that this final rule will have “no significant economic impact upon a substantial number of small entities” within the meaning of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.
). The provisions of this rule applying cost control measures to payments for medical expenses are the only ones that may have a monetary effect on small businesses. That effect will not be significant for a substantial number of those businesses, however, for no single business will bill a significant amount to OWCP for EEOICPA-related services, and the effect on those bills which are submitted, while a worthwhile savings for the Government in the aggregate, will not be significant for individual businesses affected.

The cost containment provisions are: (1) A set schedule of maximum allowable fees for professional medical services; (2) a set schedule for payment of pharmacy bills; and (3) a prospective payment system for hospital inpatient services. The first two of these provisions essentially adopt payment systems that are commonplace in the industry. Their adoption by OWCP for use in connection with its administration of the EEOICPA program will therefore result in efficiencies for both the Government and providers. The Government will benefit because OWCP did not have to develop new cost containment measures, but rather adopted existing and well-recognized measures that were already in place. The providers benefit because submitting a bill and receiving a payment will be almost the same as submitting it to Medicare, a program with which providers are already familiar and have existing systems in place for billing—they will not have to incur unnecessary administrative costs to learn a new process because the EEOICPA bill process will not be readily distinguishable from the Medicare process. Similarly, pharmacies are used to billing through clearing houses and having their charges subject to limits by private insurers. By adopting the uniform billing statement and a familiar cost control methodology, OWCP has

kept close to the billing environment with which pharmacies are already familiar. The methods chosen, therefore, represent systems that are familiar to the providers. The third of these three provisions will not have an effect on a substantial number of “small entities” under Small Business Administration standards, since most hospitals providing services for EEOICPA-covered conditions will have annual receipts that exceed the set maximum.

The implementation of these cost containment methods will have no significant effect on any single medical professional or pharmacy since they are already used by Medicare, CHAMPUS, and the Departments of Labor and Veterans Affairs, among Government entities, and by private insurance carriers. In actual terms, the amount by which these provider bills might be reduced will not have a significant impact on any one small entity since these charges are currently being processed by other payers applying similar cost containment provisions. The costs to providers whose charges may be reduced also will be relatively small because EEOICPA bills simply will not represent a large share of any single provider's total business. Since the small universe of potential claimants is spread across the United States and this bill processing system will cover only those employees who have sustained a covered illness and require medical treatment on or after July 31, 2001 (out of the projected total of 19,479 claims OWCP estimates it will accept over the first five years of the program, only approximately 5,727 of these will involve payment for medical treatment), the number of bills submitted by any one small entity which may be subject to these provisions is likely to be very small. Therefore, the “cost” of this rule to any one pharmacy or medical professional will be negligible. On the other hand, OWCP will see substantial aggregate cost savings that will benefit both OWCP (by strengthening the integrity of the program) and the taxpayers to whom the ultimate costs of the program are eventually charged through appropriations.

The Assistant Secretary for Employment Standards has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant impact on a substantial number of small entities. The factual basis for this certification has been provided above. Accordingly, no regulatory impact analysis is required.

X. Executive Order 12988 (Civil Justice Reform)

This final rule has been drafted and reviewed in accordance with E.O. 12988 and will not unduly burden the Federal court system. While the EEOICPA does not provide any specific procedures claimants must follow in order to seek review of decisions on their claims, substantial numbers of claimants will likely seek review of adverse decisions in the United States district courts pursuant to the Administrative Procedure Act. This rule should minimize the burden placed upon the courts by litigation seeking to challenge decisions under EEOICPA by providing claimants an opportunity to seek administrative review of adverse decisions and by providing a clear legal standard for affected conduct. It has been reviewed carefully to eliminate drafting errors and ambiguities.

XI. Executive Order 13045 (Protection of Children From Environmental, Health Risks and Safety Risks)

In accordance with E.O. 13045, the Department has evaluated the environmental health and safety effects of this rule on children. The Department has determined that the final rule will have no effect on children.

XII. Executive Order 13132 (Federalism)

The Department has reviewed this final rule in accordance with E.O. 13132 and has determined that it does not have any “federalism implications.” The final rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

XIII. Executive Order 13211 (Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use)

In accordance with E.O. 13211, the Department has evaluated the effects of this final rule on energy supply, distribution or use, and has determined that this rule is not likely to have a significant adverse effect on them.

XIV. Submission to Congress and the General Accounting Office

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the Department will submit to each House of the Congress and to the Comptroller General a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this notice. The report will note that this rule constitutes a “major rule” as defined by 5 U.S.C. 804(2).

XV. Catalog of Federal Domestic Assistance Number

This program is not listed in the Catalog of Federal Domestic Assistance.

List of Subjects

20 CFR Part 1
Organization and functions (Government agencies).

20 CFR Part 30
Administrative practice and procedure, Cancer, Claims, Kidney Diseases, Leukemia, Lung Diseases, Miners, Radioactive Materials, Tort claims, Underground mining, Uranium, Workers' Compensation.

Text of the Rule

For the reasons set forth in the preamble, 20 CFR Chapter 1 is amended as follows:

Subchapter A—Organization and Procedures

1. Part 1 is revised to read as follows:

PART 1—PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER

Sec.
1.1
Under what authority was the Office of Workers' Compensation Programs established?
1.2
What functions are assigned to OWCP?
1.3
What rules are contained in this chapter?
1.4
Where are other rules concerning OWCP functions found?
1.5
When was the former Bureau of Employees' Compensation abolished?
1.6
How were many of OWCP's current functions administered in the past?

Authority:

5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No. 6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 1263); 42 U.S.C. 7384d; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.

§ 1.1
Under what authority was the Office of Workers' Compensation Programs established?

The Assistant Secretary of Labor for Employment Standards, by authority vested in him by the Secretary of Labor in Secretary's Order No. 13-71, 36 FR 8755, established in the Employment Standards Administration an Office of Workers' Compensation Programs (OWCP) by Employment Standards Order No. 2-74, 39 FR 34722. The Assistant Secretary subsequently designated as the head thereof a Director who, under the general supervision of

the Assistant Secretary, administers the programs assigned to OWCP by the Assistant Secretary.

§ 1.2
What functions are assigned to OWCP?
The Assistant Secretary of Labor for Employment Standards has delegated authority and assigned responsibility to the Director of OWCP for the Department of Labor's programs under the following statutes:

(a) The Federal Employees' Compensation Act, as amended and extended (5 U.S.C. 8101
et seq.
), except 5 U.S.C. 8149 as it pertains to the Employees' Compensation Appeals Board.

(b) The War Hazards Compensation Act (42 U.S.C. 1701
et seq.
).

(c) The War Claims Act (50 U.S.C. App. 2003).

(d) The Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384
et seq.
), except activities, pursuant to Executive Order 13179 (“Providing Compensation to America's Nuclear Weapons Workers”) of December 7, 2000, assigned to the Secretary of Health and Human Services, the Secretary of Energy and the Attorney General.

(e) The Longshore and Harbor Workers' Compensation Act, as amended and extended (33 U.S.C. 901
et seq.
), except: 33 U.S.C. 919(d) with respect to administrative law judges in the Office of Administrative Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review Board; and activities, pursuant to 33 U.S.C. 941, assigned to the Assistant Secretary of Labor for Occupational Safety and Health.

(f) The Black Lung Benefits Act, as amended (30 U.S.C. 901
et seq.
).

§ 1.3
What rules are contained in this chapter?
The rules in this chapter are those governing the OWCP functions under the Federal Employees' Compensation Act, the War Hazards Compensation Act, the War Claims Act and the Energy Employees Occupational Illness Compensation Program Act of 2000.

§ 1.4
Where are other rules concerning OWCP functions found?
(a) The rules of the OWCP governing its functions under the Longshore and Harbor Workers' Compensation Act and its extensions are set forth in subchapter A of chapter VI of this title.

(b) The rules of the OWCP governing its functions under the Black Lung Benefits Act program are set forth in subchapter B of chapter VI of this title.

(c) The rules and regulations of the Employees' Compensation Appeals Board are set forth in chapter IV of this title.

(d) The rules and regulations of the Benefits Review Board are set forth in chapter VII of this title.

§ 1.5
When was the former Bureau of Employees' Compensation abolished?
By Secretary of Labor's Order issued September 23, 1974, 39 FR 34723, issued concurrently with Employment Standards Order 2-74, 39 FR 34722, the Secretary revoked the prior Secretary's Order No. 18-67, 32 FR 12979, which had delegated authority and assigned responsibility for the various workers' compensation programs enumerated in § 1.2, except the Black Lung Benefits Program and the Energy Employees Occupational Illness Compensation Program not then in existence, to the Director of the former Bureau of Employees' Compensation.

§ 1.6
How were many of OWCP's current functions administered in the past?
(a) Administration of the Federal Employees' Compensation Act and the Longshore and Harbor Workers' Compensation Act was initially vested in an independent establishment known as the U.S. Employees' Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR, 1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the Commission was abolished and its functions were transferred to the Federal Security Agency to be performed by a newly created Bureau of Employees' Compensation within such Agency. By Reorganization Plan No. 19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 1271), said Bureau was transferred to the Department of Labor (DOL), and the authority formerly vested in the Administrator, Federal Security Agency, was vested in the Secretary of Labor. By Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp., page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to make from time to time such provisions as he shall deem appropriate, authorizing the performance of any of his functions by any other officer, agency, or employee of the DOL.

(b) In 1972, two separate organizational units were established within the Bureau: an Office of Workmen's Compensation Programs (37 FR 20533) and an Office of Federal Employees' Compensation (37 FR 22979). In 1974, these two units were abolished and one organizational unit, the Office of Workers' Compensation Programs, was established in lieu of the Bureau of Employees' Compensation (39 FR 34722).

2. Subchapter C consisting of Part 30 is revised to read as follows:

Subchapter C—Energy Employees Occupational Illness Compensation Program Act of 2000

PART 30-CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED

Subpart A—General Provisions

Introduction

Sec.
30.0
What are the provisions of the EEOICPA, in general?
30.1
What rules govern the administration of the EEOICPA and this chapter?
30.2
In general, how have the tasks associated with the administration of the EEOICPA claims process been assigned?
30.3
What do these regulations contain?
Definitions

30.5
What are the definitions used in this part?
Information in Program Records

30.10
Are all OWCP records relating to claims filed under the EEOICPA considered confidential?
30.11
Who maintains custody and control of claim records?
30.12
What process is used by a person who wants to obtain copies of or amend EEOICPA claim records?
Rights and Penalties

30.15
May EEOICPA benefits be assigned, transferred or garnished?
30.16
What penalties may be imposed in connection with a claim under the Act?
30.17
Is a beneficiary who defrauds the government in connection with a claim for benefits still entitled to those benefits?

Subpart B—Filing Claims; Evidence and Burden of Proof; Special Procedures for Certain Cancer Claims

Claims for Occupational Illness—Employee or Survivor's Actions

30.100
In general, how does an employee file for benefits?
30.101
In general, how is a survivor's claim filed?
30.102
How does a claimant make sure that OWCP has the evidence necessary to process the claim?
Claims for Occupational Illness—Actions of DOE

30.105
What must DOE do after an employee files a claim for an occupational illness?
30.106
What should DOE do when an employee with a claim for an occupational illness dies?
Evidence and Burden of Proof

30.110

Who is entitled to compensation under the Act?

30.111
What is the claimant's responsibility with respect to burden of proof, production of documents, presumptions, and affidavits?
30.112
What kind of evidence is needed to establish covered employment and how will that evidence be evaluated?
30.113
What are the requirements for written medical documentation, contemporaneous records, and other records or documents?
30.114
What kind of evidence is needed to establish a covered medical condition and how will that evidence be evaluated?
Special Procedures for Certain Cancer Claims

30.115
For those claims that do not seek benefits pursuant to the Special Exposure Cohort provisions, what will OWCP do once it determines that a covered employee (or a survivor of such an employee) has established that he or she contracted cancer under § 30.211?

Subpart C—Eligibility Criteria

General Provisions

30.200
What is the scope of this subpart?
Eligibility Criteria for Claims Relating to Covered Beryllium Illness

30.205
What are the criteria for eligibility for benefits relating to covered beryllium illness?
30.206
How does a claimant prove that the employee was a “covered beryllium employee” exposed to beryllium dust, particles or vapor in the performance of duty?
30.207
How does a claimant prove a diagnosis of a covered beryllium disease?
Eligibility Criteria for Claims Relating to Cancer

30.210
What are the criteria for eligibility for benefits relating to cancer?
30.211
How does a claimant establish that the employee has or had contracted cancer?
30.212
How does a claimant establish that the employee contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility?
30.213
How does a claimant establish that the cancer was at least as likely as not related to the employment at the DOE facility or the atomic weapons employer facility?
30.214
How does a claimant establish that the employee is a member of the Special Exposure Cohort?
30.215
How does a claimant establish that the employee has been diagnosed with cancer or has sustained a consequential injury, illness or disease?
Eligibility Criteria for Claims Relating to Chronic Silicosis

30.220
What are the criteria for eligibility for benefits relating to chronic silicosis?
30.221
How does a claimant prove exposure to silica in the performance of duty?
30.222
How does a claimant establish that the employee has been diagnosed with chronic silicosis or has sustained a consequential injury, illness or disease?
Eligibility Criteria for Certain Uranium Employees

30.225
What are the criteria for eligibility for benefits for certain uranium employees?
30.226
How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness or disease?

Subpart D—Adjudicatory Process

30.300
What process will OWCP use to decide claims and to provide for administrative review of those decisions?
Recommended Decisions on Claims

30.305
How does OWCP determine entitlement to EEOICPA compensation?
30.306
What does the recommended decision contain?
30.307
To whom is the recommended decision sent?
Hearings and Final Decisions on Claims

30.310
What must the claimant do if he or she objects to the recommended decision or wants to request a hearing?
30.311
What happens if the claimant does not object to the recommended decision or request a hearing within 60 days?
30.312
What will the FAB do if the claimant objects to the recommended decision but does not request a hearing?
30.313
How is a review of the written record conducted?
30.314
How is a hearing conducted?
30.315
May a claimant postpone a hearing?
30.316
How does the FAB issue a final decision on a claim?
30.317
Can the FAB request a further response from the claimant or remand a claim to the district office?
30.318
Can the FAB consider an objection to a determination by HHS with respect to an employee's dose reconstruction?
30.319
May a claimant request reconsideration of a final decision of the FAB?
Reopening Claims

30.320
Can a claim be reopened after the FAB has issued a final decision?

Subpart E—Medical and Related Benefits

Medical Treatment and Related Issues

30.400
What are the basic rules for obtaining medical care?
30.401
What are the special rules for the services of chiropractors?
30.402
What are the special rules for the services of clinical psychologists?
30.403
Will OWCP pay for the services of an attendant?
30.404
Will OWCP pay for transportation to obtain medical treatment?
30.405
After selecting a treating physician, may an employee choose to be treated by another physician instead?
30.406
Are there any exceptions to these procedures for obtaining medical care?
Directed Medical Examinations

30.410
Can OWCP require an employee to be examined by another physician?
30.411
What happens if the opinion of the physician selected by OWCP differs from the opinion of the physician selected by the employee?
30.412
Who pays for second opinion and referee examinations?
Medical Reports

30.415
What are the requirements for medical reports?
30.416
How and when should medical reports be submitted?
30.417
What additional medical information may OWCP require to support continuing payment of benefits?
Medical Bills

30.420
How are medical bills submitted?
30.421
What are the time frames for submitting bills?
30.422
If OWCP reimburses an employee only partially for a medical expense, must the provider refund the balance of the amount paid to the employee?

Subpart F—Survivors; Payments and Offsets; Overpayments

Survivors

30.500
What special statutory definitions apply to survivors under the EEOICPA?
30.501
What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under the EEOICPA?
30.502
When is entitlement for survivors determined for purposes of the EEOICPA?
Payment of Claims and Offset for Certain Payments

30.505
What procedures will OWCP follow before it pays any compensation?
30.506
To whom and in what manner will OWCP pay compensation?
30.507
What compensation will be provided to covered employees who only establish beryllium sensitivity?
30.508
What is beryllium sensitivity monitoring?
Overpayments

30.510
How does OWCP notify an individual of a payment made on a claim?
30.511
What is an “overpayment” for purposes of the EEOICPA?
30.512
How does OWCP determine that a beneficiary owes a debt as the result of the creation of an overpayment?
30.513
How are overpayments collected?

Subpart G—Special Provisions

Representation

30.600
May a claimant designate a representative?
30.601
Who may serve as a representative?
30.602
Who is responsible for paying the representative's fee?
30.603
Are there any limitations on what the representative may charge the claimant for his or her services?
Third Party Liability

30.605
What rights does the United States have upon payment of compensation under the EEOICPA?
30.606

Under what circumstances must a recovery of money or other property in

connection with an illness for which benefits are payable under the EEOICPA be reported to OWCP?

30.607
How is a structured settlement (that is, a settlement providing for receipt of funds over a specified period of time) treated for purposes of reporting the recovery?
30.608
How does the United States calculate the amount to which it is subrogated?
30.609
Is a settlement or judgment received as a result of allegations of medical malpractice in treating an illness covered by the EEOICPA a recovery that must be reported to OWCP?
30.610
Are payments to an employee or eligible surviving beneficiary as a result of an insurance policy which the employee or eligible surviving beneficiary has purchased a recovery that must be reported to OWCP?
30.611
If a settlement or judgment is received for more than one medical condition, can the amount paid on a single EEOICPA claim be attributed to different conditions for purposes of calculating the amount to which the United States is subrogated?
Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons Employers

30.615
What type of tort suits filed against beryllium vendors or atomic weapons employers may disqualify certain claimants from receiving benefits under EEOICPA?
30.616
What happens if this type of tort suit was filed prior to October 30, 2000?
30.617
What happens if this type of tort suit was filed during the period from October 30, 2000 through December 28, 2001?
30.618
What happens if this type of tort suit is filed after December 28, 2001?
30.619
Do all the parties to this type of tort suit have to take these actions?
30.620
How will OWCP ascertain whether a claimant filed this type of tort suit and if he or she has been disqualified from receiving any benefits under the EEOICPA?

Subpart H—Information for Medical Providers

Medical Records and Bills

30.700
What kind of medical records must providers keep?
30.701
How are medical bills to be submitted?
30.702
How should an employee prepare and submit requests for reimbursement for medical expenses, transportation costs, loss of wages, and incidental expenses?
30.703
What are the time limitations on OWCP's payment of bills?
Medical Fee Schedule

30.705
What services are covered by the OWCP fee schedule?
30.706
How are the maximum fees defined?
30.707
How are payments for particular services calculated?
30.708
Does the fee schedule apply to every kind of procedure?
30.709
How are payments for medicinal drugs determined?
30.710
How are payments for inpatient medical services determined?
30.711
When and how are fees reduced?
30.712
If OWCP reduces a fee, may a provider request reconsideration of the reduction?
30.713
If OWCP reduces a fee, may a provider bill the employee for the balance?
Exclusion of Providers

30.715
What are the grounds for excluding a provider for payment under this part?
30.716
What will cause OWCP to automatically exclude a physician or other provider of medical services and supplies?
30.717
When are OWCP's exclusion procedures initiated?
30.718
How is a provider notified of OWCP's intent to exclude him or her?
30.719
What requirements must the provider's reply and OWCP's decision meet?
30.720
How can an excluded provider request a hearing?
30.721
How are hearings assigned and scheduled?
30.722
How are advisory opinions obtained?
30.723
How will the administrative law judge conduct the hearing and issue the recommended decision?
30.724
How can a party request review by OWCP of the administrative law judge's recommended decision?
30.725
What are the effects of non-automatic exclusion?
30.726
How can an excluded provider be reinstated?

Authority:

5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 7384d, 7384t and 7384u; Executive Order 13179, 65 FR 77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 4-2001, 66 FR 29656.

Subpart A—General Provisions

Introduction

§ 30.0
What are the provisions of the EEOICPA, in general?

The Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384
et seq.
, provides for the payment of compensation benefits to covered employees and, where applicable, survivors of such employees, of the United States Department of Energy (DOE), its predecessor agencies and certain of its contractors and subcontractors. It also provides for the payment of compensation to certain persons already found eligible for benefits under section 5 of the Radiation Exposure Compensation Act, as amended (RECA), 42 U.S.C. 2210 note, and where applicable, survivors of such employees. The regulations in this part describe the rules for filing, processing, and paying claims for benefits under the EEOICPA.

(a) The EEOICPA provides for the payment of either monetary compensation for the disability of a covered employee due to an occupational illness or for monitoring for beryllium sensitivity, as well as for medical and related benefits for such illness.

(b) All types of benefits and conditions of eligibility listed in this section are subject to the provisions of the EEOICPA and of this part.

§ 30.1
What rules govern the administration of the EEOICPA and this chapter?
In accordance with the EEOICPA, Executive Order 13179 and Secretary's Order No. 4-2001, the primary responsibility for administering the Act, except for those activities assigned to the Secretary of Health and Human Services, the Secretary of Energy and the Attorney General, has been delegated to the Assistant Secretary of Labor for Employment Standards. The Assistant Secretary, in turn, has delegated the responsibility for administering the Act to the Director of the Office of Workers' Compensation Programs (OWCP). Except as otherwise provided by law, the Director of OWCP and his or her designees have the exclusive authority to administer, interpret and enforce the provisions of the Act.

§ 30.2
In general, how have the tasks associated with the administration of the EEOICPA claims process been assigned?

(a) In E.O. 13179, the President assigned various tasks associated with the administration of the EEOICPA claims process among the Secretaries of Labor, Health and Human Services and Energy, and the Attorney General. In light of the fact that the Secretary of Labor has been assigned primary responsibility for administering the EEOICPA, almost the entire claims process is within the exclusive control of OWCP. This means that claimants file their claims with OWCP, and OWCP is responsible for granting or denying compensation under the Act (see §§ 30.100, 30.101, and 30.505 through 30.513). OWCP also provides assistance to claimants and potential claimants by providing information regarding eligibility and other program requirements, including information on completing claim forms and the types and availability of medical testing and diagnostic services related to covered illnesses. In addition, OWCP provides an administrative review process for claimants who disagree with its recommended and final adverse

decisions (see §§ 30.300 through 30.320).

(b) However, HHS has exclusive control of a portion of the claims process involving certain cancer claims, and is therefore responsible for providing reconstructed doses for these claims (see § 30.115). HHS has also promulgated regulations at 42 CFR part 81 establishing the guidelines that OWCP must follow to assess the likelihood that an individual with cancer sustained the cancer in the performance of duty (see § 30.210). DOE and DOJ are responsible for, among other tasks, notifying potential claimants and submitting evidence that OWCP deems necessary for its adjudication of claims under the EEOICPA (see §§ 30.105, 30.106, and 30.111).

§ 30.3
What do these regulations contain?
This part 30 sets forth the regulations governing administration of all claims that are filed with OWCP, except to the extent specified in certain provisions. Its provisions are intended to assist persons seeking benefits under the EEOICPA, as well as personnel in the various federal agencies and DOL who process claims filed under the EEOICPA or who perform administrative functions with respect to the EEOICPA. The various subparts of this part contain the following:

(a) Subpart A: the general statutory and administrative framework for processing claims under the EEOICPA. It contains a statement of purpose and scope, together with definitions of terms, information regarding the disclosure of OWCP records, and a description of rights and penalties under the EEOICPA, including convictions for fraud.

(b) Subpart B: the rules for filing claims for benefits under the EEOICPA. It also addresses general standards regarding necessary evidence and the burden of proof, descriptions of basic forms and special procedures for certain cancer claims.

(c) Subpart C: the eligibility criteria for conditions covered by the EEOICPA.

(d) Subpart D: the rules governing the adjudication process leading from recommended to final decisions made on claims filed under the EEOICPA. It also describes the hearing and reopening processes.

(e) Subpart E: the rules governing medical care, second opinion and referee medical examinations directed by OWCP, and medical reports and records in general. It also addresses the kinds of treatment that may be authorized and how medical bills are paid.

(f) Subpart F: the rules relating to the payment of monetary compensation. It includes the provisions for identifying and processing overpayments of compensation.

(g) Subpart G: the rules concerning legal representation of claimants before OWCP, subrogation of the United States, and the effect of tort suits against beryllium vendors and atomic weapons employers.

(h) Subpart H: information for medical providers. It includes rules for medical reports, medical bills, and the OWCP medical fee schedule, as well as the provisions for exclusion of medical providers.

Definitions

§ 30.5
What are the definitions used in this part?

(a)
Act or EEOICPA
means the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (42 U.S.C. 7384
et seq.
).

(b)
Atomic weapon
means any device utilizing atomic energy, exclusive of the means for transporting or propelling the device (where such means is a separable and divisible part of the device), the principle purpose of which is for use as, or for development of, a weapon, a weapon prototype, or a weapon test device.

(c)
Atomic weapons employee
means an individual employed by an atomic weapons employer during a period when the employer was processing or producing, for the use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling.

(d)
Atomic weapons employer
means any entity, other than the United States, that:

(1) Processed or produced, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining and milling; and

(2) Is designated by the Secretary of Energy as an atomic weapons employer for purposes of the compensation program.

(e)
Atomic weapons employer facility
means any facility, owned by an atomic weapons employer, that:

(1) Is or was used to process or produce, for use by the United States, material that emitted radiation and was used in the production of an atomic weapon, excluding uranium mining or milling; and

(2) Is designated as such in the list periodically published in the
Federal Register
by DOE.

(f)
Attorney General
means the Attorney General of the United States or the United States Department of Justice (DOJ).

(g)
Benefit or Compensation
means the money the Department pays to or on behalf of a covered employee from the Energy Employees Occupational Illness Compensation Fund. However, the term “compensation” used in section 7385f(b) of the EEOICPA (with respect to entitlement to only one payment of compensation) means only the payments specified in section 7384s(a)(1) ($150,000 lump sum payment) and in section 7384u(a) ($50,000 payment to beneficiaries under section 5 of the RECA). Except as used in section 7385f(b), these two terms also include any other amounts paid out of the Fund for such things as medical treatment, monitoring, examinations, services, appliances and supplies as well as for transportation and expenses incident to the securing of such medical treatment, monitoring, examinations, services, appliances, and supplies.

(h)
Beryllium sensitization or sensitivity
means that the individual has an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells.

(i)
Beryllium vendor
means the specific corporations and named predecessor corporations listed in section 7384l(6) of the Act and any of the facilities designated as such in the list periodically published in the
Federal Register
by DOE.

(j)
Chronic silicosis
means a non-malignant lung disease if:

(1) The initial occupational exposure to silica dust preceded the onset of silicosis by at least 10 years; and

(2) A written diagnosis of silicosis is made by a medical doctor and is accompanied by:

(i) A chest radiograph, interpreted by an individual certified by the National Institute for Occupational Safety and Health as a B reader, classifying the existence of pneumoconioses of category 1/0 or higher; or

(ii) Results from a computer assisted tomograph or other imaging technique that are consistent with silicosis; or

(iii) Lung biopsy findings consistent with silicosis.

(k)
Claim
means a written assertion of an individual's entitlement to benefits under the EEOICPA, submitted in a manner authorized by this part.

(l)
Claimant
means the individual who is alleged to satisfy the criteria for compensation under the Act.

(m)
Compensation fund
or fund means the fund established on the books of the Treasury for payment of benefits and compensation under the Act.

(n)
Contemporaneous record
means any document created at or around the time of the event that is recorded in the document.

(o)
Covered beryllium illness
means any of the following:

(1) Beryllium sensitivity as established by an abnormal LPT performed on either blood or lung lavage cells.

(2) Established chronic beryllium disease (see § 30.207(c)).

(3) Any injury, illness, impairment, or disability sustained as a consequence of a covered beryllium illness referred to in paragraphs (o)(1) or (2) of this section.

(p)
Covered employee
means a covered beryllium employee (see § 30.205), a covered employee with cancer (
see
§ 30.210), a covered employee with chronic silicosis (see § 30.220), or a covered uranium employee (see paragraph (q) of this section).

(q)
Covered uranium employee
means an individual who has been determined by DOJ to be entitled to an award under section 5 of the RECA, regardless of whether the individual was the employee or the deceased employee's survivor.

(r)
Current or former employee as defined in 5 U.S.C. 8101(1)
as used in § 30.205(a)(1) means an individual who fits within one of the following listed groups:

(1) A civil officer or employee in any branch of the Government of the United States, including an officer or employee of an instrumentality wholly owned by the United States;

(2) An individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual;

(3) An individual, other than an independent contractor or individual employed by an independent contractor, employed on the Menominee Indian Reservation in Wisconsin in operations conducted under a statute relating to tribal timber and logging operations on that reservation;

(4) An individual appointed to a position on the office staff of a former President; or

(5) An individual selected and serving as a Federal petit or grand juror.

(s)
Department
means the United States Department of Labor (DOL).

(t)
Department of Energy or DOE
includes the predecessor agencies of the DOE, including the Manhattan Engineering District.

(u)
Department of Energy contractor employee
means any of the following:

(1) An individual who is or was in residence at a DOE facility as a researcher for one or more periods aggregating at least 24 months.

(2) An individual who is or was employed at a DOE facility by:

(i) An entity that contracted with the DOE to provide management and operating, management and integration, or environmental remediation at the facility; or

(ii) A contractor or subcontractor that provided services, including construction and maintenance, at the facility.

(v)
Department of Energy facility
means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located:

(1) In which operations are, or have been, conducted by, or on behalf of, the DOE (except for buildings, structures, premises, grounds, or operations covered by E.O. 12344, dated February 1, 1982, pertaining to the Naval Nuclear Propulsion Program); and

(2) With regard to which the DOE has or had:

(i) A proprietary interest; or

(ii) Entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

(w)
Disability
means, for purposes of determining entitlement to payment under section 7384s(a)(1) of the Act, having been determined by OWCP to have or have had established chronic beryllium disease, cancer, or chronic silicosis.

(x)
Eligible surviving beneficiary
means any individual who is entitled under sections 7384s(e) or 7384u(e) of the Act to receive a payment on behalf of a deceased covered employee.

(y)
Employee
means either a current or former employee.

(z)
Occupational illness
means a covered beryllium illness, cancer sustained in the performance of duty as defined in § 30.210(b), specified cancer, or chronic silicosis.

(aa)
OWCP
means the Office of Workers' Compensation Programs, United States Department of Labor.

(bb)
Physician
includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. The term “physician” includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by x-ray to exist.

(cc)
Qualified physician
means any physician who has not been excluded under the provisions of subpart H of this part. Except as otherwise provided by regulation, a qualified physician shall be deemed to be designated or approved by OWCP.

(dd)
Specified cancer
(as defined in section 4(b)(2) of the RECA and in the Act) means:

(1) Leukemia (other than chronic lymphocytic leukemia) provided that the onset of the disease was at least 2 years after first exposure;

(2) Lung cancer (other than in situ lung cancer that is discovered during or after a post-mortem exam);

(3) Bone cancer;

(4) Renal cancers; or

(5) The following diseases, provided onset was at least 5 years after first exposure:

(i) Multiple myeloma;

(ii) Lymphomas (other than Hodgkin's disease); and

(iii) Primary cancer of the:

(A) Thyroid;

(B) Male or female breast;

(C) Esophagus;

(D) Stomach;

(E) Pharynx;

(F) Small intestine;

(G) Pancreas;

(H) Bile ducts;

(I) Gall bladder;

(J) Salivary gland;

(K) Urinary bladder;

(L) Brain;

(M) Colon;

(N) Ovary; or

(O) Liver (except if cirrhosis or hepatitis B is indicated).

(6) The specified diseases designated in this section mean the physiological condition or conditions that are recognized by the National Cancer Institute under those names or nomenclature, or under any previously accepted or commonly used names or nomenclature.

(ee)
Survivor
means:

(1) Subject to paragraph (ee)(2) of this section, a surviving spouse, child, parent, grandchild and grandparent of a deceased covered employee.

(2) Those individuals listed in paragraph (ee)(1) of this section do not include any individuals not living as of the time OWCP makes a lump-sum payment or payments to an eligible surviving beneficiary or beneficiaries.

(ff)
Time of injury
means:

(1) In regard to a claim arising out of exposure to beryllium or silica, the last date on which a covered employee was exposed to such substance in the

performance of duty in accordance with sections 7384n(a) or 7384r(c) of the Act; or

(2) In regard to a claim arising out of exposure to radiation, the last date on which a covered employee was exposed to radiation in the performance of duty in accordance with section 7384n(b) of the Act or, in the case of a member of the Special Exposure Cohort, the last date on which the member of the Special Exposure Cohort was employed at the Department of Energy facility or the atomic weapons employer facility at which the member was exposed to radiation.

(gg)
Workday
means a single workshift whether or not it occurred on more than one calendar day.

Information in Program Records

§ 30.10
Are all OWCP records relating to claims filed under the EEOICPA considered confidential?
All OWCP records relating to claims for benefits under the EEOICPA are considered confidential and may not be released, inspected, copied or otherwise disclosed except as provided in the Freedom of Information Act and the Privacy Act of 1974.

§ 30.11
Who maintains custody and control of claim records?

All OWCP records relating to claims for benefits filed under the Act are covered by the Privacy Act system of records entitled DOL/ESA-49 (Office of Workers' Compensation Programs, Energy Employees Occupational Illness Compensation Program Act File). This system of records is maintained by and under the control of OWCP, and, as such, all records covered by DOL/ESA-49 are official records of OWCP. The protection, release, inspection and copying of records covered by DOL/ESA-49 shall be accomplished in accordance with the rules, guidelines and provisions of this part, as well as those contained in 29 CFR parts 70 and 71, and with the notice of the system of records and routine uses published in the
Federal Register
. All questions relating to access, disclosure, and/or amendment of claims records maintained by OWCP are to be resolved in accordance with this section.

§ 30.12
What process is used by a person who wants to ob

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-31841. Public record. Not legal advice.