Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act

DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1 and 30

RIN 1215-AB51

Performance of Functions; Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act

AGENCY:

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

ACTION:

Interim final rule; request for comments.

SUMMARY:

This document contains the interim final regulations governing the administration of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act) by the Department of Labor (Department or DOL). Part B of the Act provides uniform 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. Part B of the Act also provides smaller uniform lump-sum payments and medical benefits to individuals found eligible by the Department of Justice (DOJ) for benefits under section 5 of the Radiation Exposure Compensation Act (RECA) and, where applicable, to their survivors. Part E of the Act provides variable lump-sum payments (based on a worker's permanent impairment and/or years of established wage-loss) and medical benefits for covered DOE contractor employees and, where applicable, provides variable lump-sum payments to survivors of such employees (based on a worker's death due to a covered illness and any years of established wage-loss). Part E of the Act also provides these same payments and benefits to uranium miners, millers and ore transporters covered by section 5 of the RECA and, where applicable, to survivors of such employees. The Office of Workers' Compensation Programs (OWCP) administers the adjudication of claims and the payment of benefits under EEOICPA, with the Department of Health and Human Services (HHS) estimating the amounts of radiation received by employees alleged to have sustained cancer as a result of such exposure and establishing guidelines to be followed by OWCP in determining whether such cancers are at least as likely as not related to employment. Both DOE and DOJ are responsible for notifying potential claimants and for submitting evidence necessary for OWCP's adjudication of claims under EEOICPA.

DATES:

Effective Date:

This interim final rule is effective on June 8, 2005.

Applicability date:

This interim final rule applies to all claims filed on or after June 8, 2005. This rule also applies to any claims that are pending before OWCP on June 8, 2005.

Compliance Date:

Affected parties do not have to comply with the new information collection requirements in §§ 30.102, 30.231, 30.232, 30.806, 30.905 and 30.907 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. 1215-0197.

Comments:

The Department invites comments on the interim final rule from interested parties. Comments on the interim final rule must be received by August 8, 2005. Written comments on the new information collection requirements in this rule must be received by July 8, 2005.

ADDRESSES:

You may submit comments on the interim final rule, identified by Regulatory Information Number (RIN) 1215-AB51, by any ONE of the following methods:

Federal e-Rulemaking Portal:

The Internet address to submit comments on the rule is

http://www.regulations.gov.

Follow the Web site instructions for submitting comments.

E-mail:

Comments on the rule may be submitted by e-mail to

OWCP-DEEOIC-REG-1215-AB51@dol.gov.

You must include “RIN 1215-AB51” in the subject line of the e-mail containing your comments.

Mail:

Submit written comments to 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. Because of security measures, mail directed to Washington, DC is sometimes delayed. We will only consider comments postmarked by the U.S. Postal Service or other delivery service on or before the deadline for comments.

Instructions:

All comments must include the RIN 1215-AB51 for this rulemaking. Receipt of any comments, whether by mail, Internet, or e-mail, will not be acknowledged. Because DOL continues to experience delays in receiving postal mail in the Washington, DC area, commenters are encouraged to submit any comments by mail early.

Comments on the interim final rule will be available for public inspection during normal business hours at the address listed above for mailed comments. Persons who need assistance to review the comments will be provided with appropriate aids such as readers or print magnifiers. Copies of this interim final rule may be obtained in alternative formats (

e.g.

, large print, audiotape or disk) upon request. To schedule an appointment to review the comments and/or to obtain the interim final rule in an alternative format, contact OWCP at 202-693-0031 (this is not a toll-free number).

Written comments on the new information collection requirements described in this interim final rule 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: 202-693-0031 (this is not a toll-free number).

Individuals with hearing or speech impairments may access this telephone number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

The Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384

et seq.

, was originally enacted on October 30, 2000. The initial version of EEOICPA established a compensation program (known as Part B of the Act) to provide a uniform lump-sum payment of $150,000 and medical benefits as compensation to covered employees who had sustained designated illnesses due to their exposure to radiation, beryllium, or silica while in the performance of duty for DOE and certain of its vendors,

contractors and subcontractors. Part B of the Act also provided for payment of compensation to certain survivors of these covered employees, and for payment of a smaller uniform lump-sum ($50,000) to individuals (who would also receive medical benefits), or their survivors, who were determined to be eligible for compensation under section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 2210 note, by DOJ. Primary responsibility for the administration of Part B of the Act was assigned to DOL by Executive Order 13179 (“Providing Compensation to America's Nuclear Weapons Workers”) of December 7, 2000 (65 FR 77487). On May 25, 2001, the Department issued interim final regulations (66 FR 28948) governing its administration of Part B of the Act, commenced administration of Part B of the Act on July 31, 2001, and issued final regulations on December 26, 2002 (67 FR 78874) that went into effect on February 24, 2003.

The initial version of EEOICPA also created a second program (known as Part D of the Act) that required DOE to establish a system by which DOE contractor employees (and their eligible survivors) could seek assistance from DOE in obtaining state workers' compensation benefits if a Physicians Panel determined that the employee in question had sustained a covered illness as a result of work-related exposure to a toxic substance at a DOE facility. A positive panel finding that was accepted by DOE required DOE, to the extent permitted by law, to order its contractor not to contest the claim for state workers' compensation benefits. However, Congress amended EEOICPA in Subtitle E of Title XXXI of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Public Law 108-375, 118 Stat. 1811, 2178 (October 28, 2004), by abolishing Part D of the Act and creating a new Part E (codified at 42 U.S.C. 7385s through 7385s-15) that it assigned to DOL for administration. Part E establishes a new system of variable federal payments for DOE contractor employees, uranium workers covered by section 5 of RECA, and eligible survivors of such employees. Congress also amended several of the other provisions contained in EEOICPA that applied to Part B and specified that DOL was to prescribe regulations implementing the amendments to EEOICPA and commence administration of Part E within 210 days of its enactment.

II. Administrative Procedure Act Issues

Section 7385s-10(e) of EEOICPA clearly directs the Secretary of Labor to “prescribe regulations necessary for the administration of [Part E] * * * not later than 210 days after the date” the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 was enacted, and further authorizes the Secretary to “prescribe interim final regulations necessary to meet” this 210-day deadline. The Department believes that this grant of authority to the Secretary to prescribe interim final regulations by May 26, 2005 contemplates displacement of Administrative Procedure Act (APA) notice and comment procedures and allows the publication of interim final regulations as an initial matter.

Therefore, the Department believes that the “good cause” exception to APA notice and comment rulemaking applies to this rule. Under that exception, pre-adoption procedures are not required “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). DOL cannot fully adjudicate claims under Part E of EEOICPA until these regulations are promulgated. The steps necessary for the usual notice and comment under the APA could not be completed in time for the Department of Labor to commence administration of Part E by the deadline of May 26, 2005: approval of the notice of proposed rulemaking by the Secretary and OMB; publication in the

Federal Register

; receipt of, consideration of, and response to comments submitted by interested parties; modification of the proposed rules, if appropriate; final approval by the Secretary; clearance by OMB; and publication in the

Federal Register

. Accordingly, the Department believes that under 5 U.S.C. 553(b)(B), good cause exists for waiver of notice and comment rulemaking procedures because issuance of proposed rules would be impracticable and contrary to the public interest.

While notice and comment rulemaking is being waived, the Department is interested in comments and advice regarding changes that should be made to these interim regulations. The Department will carefully consider all comments on the regulations contained in this interim final rule received on or before August 8, 2005, and will publish the final regulations with any necessary changes.

Under the APA, substantive rules generally cannot take effect until 30 days after the rule is published in the

Federal Register

. However, section 553(d)(3) of the APA states that agencies may waive this 30-day requirement for “good cause” and establish an earlier effective date. As explained above, the Department believes that there is “good cause” for waiver of the APA requirement for notice and comment rulemaking because it would be both impractical and contrary to the public interest for the Department to fulfill that requirement. Similarly, the Department believes that the “good cause” exception to the 30-day effective date requirement for substantive rules in the APA applies to this rule, because observing this requirement would be both impractical and contrary to the public interest. As noted above, DOL will not be able to fully adjudicate claims under Part E of EEOICPA until the regulations in this rule are in effect. Since Congress has directed DOL to commence administration of Part E no later than May 26, 2005 in section 7385s-10(f)(1) of EEOICPA, the Department believes that “good cause” exists for waiver of the usual 30-day effective date requirement for substantive rules and for this rule to become effective immediately upon the date of its publication in the

Federal Register

.

III. Overview of Regulatory Changes

Congress, in enacting Part B of EEOICPA, created a program to ensure an efficient, uniform, and adequate compensation system for certain employees of DOE, its vendors, contractors, and subcontractors, who contracted beryllium-, silica-, and radiation-related health conditions as a result of their employment in the development of nuclear weapons. When it amended EEOICPA to create Part E, Congress established a second program in an effort to also ensure an equally efficient, uniform, and adequate compensation system for DOE contractor employees and RECA section 5 workers who contracted illnesses due to their exposures to toxic substances as a result of employment at a DOE facility or a RECA section 5 facility, as appropriate. These regulations describe the processes that OWCP will use so that employees, and, when applicable, their survivors, will receive the benefits provided by Part B and Part E of EEOICPA in the efficient and uniform manner intended by Congress. The following discussion describes the many significant changes to the regulations that currently appear as 20 CFR parts 1 and 30, but does not include any discussion of corrections of typographical errors, or minor wording changes and clarifications that do not affect the substance of the existing regulations.

20 CFR Part 1

This part is the same as current part 1 (§§ 1.1 through 1.6), with the exception of the authority citation, and is reprinted in full for the ease of the reader. The authority citation has been updated to reflect that Congress assigned responsibility for administration of the new Part E of EEOICPA established by Public Law 108-375 to DOL.

20 CFR Part 30

Subpart A—General Provisions

This subpart is substantially the same as the current subpart A (§§ 30.0 through 30.17). The amended subpart adds material describing the expanded responsibilities of DOL under EEOICPA, as well as definitions necessary for administration of Part E of the Act.

Introduction

Section 30.0 now describes, in general terms, the types of compensation available under both Parts B and E of EEOICPA, the persons to whom this compensation may be paid, and the differing eligibility requirements that apply to claimants under Part B and Part E. Section 30.2 has been updated to briefly describe how the tasks involved in administering Part B and Part E of EEOICPA have been assigned, both within DOL and among the Secretaries of Labor, Health and Human Services, and Energy, and the Attorney General, following the amendments enacted on October 28, 2004, while § 30.3 summarizes how the existing and new regulations in this part are organized by subject area.

Definitions

Amended § 30.5 compiles the definitions for the principal terms used in this part and is substantially unchanged from the existing section. It includes terms specifically defined in EEOICPA that, for the convenience of the user of this part, are repeated in this section. The Department seeks comments on all of the definitions provided in § 30.5, including, in particular, those addressed in the following paragraphs.

Section 3168 of Public Law 108-375 amended the prior statutory definition of

atomic weapons employee

at 42 U.S.C. 7384l(3) to add employees who did not work during the period their employer had a contract with DOE and were instead only employed during a period of residual radioactive contamination as determined by the National Institute for Occupational Safety and Health (NIOSH). Thus, the regulatory definition of this term in § 30.5(c) has been modified to reflect this amendment.

The § 30.5(p) definition of

covered Part E employee

is intended to serve as a shorthand term and refers to both DOE contractor employees (defined in section 7385s(1) of the Act) and RECA section 5 uranium workers (defined in section 7385s-5(b)(3) of the Act) who have been determined by OWCP to have contracted covered illnesses through an exposure to toxic substances at a DOE facility or a RECA section 5 facility, as appropriate. In order to make it consistent with (and also distinguish it from) § 30.5(p), the definition of

covered employee

in existing § 30.5(p) has been amended to read as

covered Part B employee

and has been moved to amended § 30.5(q).

In order to allow readers of this rule to readily distinguish between the illnesses that are compensable under Parts B and E, this section also includes regulatory definitions of

covered illness

in amended § 30.5(r) and

occupational illness

in amended § 30.5(bb). While neither of these terms is altered in any fashion in this rule, they are both defined in this section to highlight the need to differentiate between an occupational illness that is compensable under Part B of the Act, and a covered illness that is compensable under Part E.

The Department defines

Department of Energy facility

in § 30.5(v) by repeating the definition found in section 7384l(12) of the Act. As noted in amended § 30.5(x)(2), DOL adopts the list of facilities established by the Department of Energy that is in effect on the date of publication of this Interim Final Rule (69 FR 51825). DOL will periodically update this list as it deems appropriate in its sole discretion by publishing a revised list of covered facilities in the

Federal Register

. Determinations of the Director that a facility is a

Department of Energy facility

is solely for the purpose of administering the EEOICPA.

As noted above, Public Law 108-375 abolished Part D of the Act and, at the same time, established a new Part E that maintained the former Part D's focus on covered illnesses of employees who were exposed to a “toxic substance” at a DOE facility. Because section 7385s-4(c) of EEOICPA requires DOL to use the causation standard from DOE's former Part D regulations when it determines if an employee has sustained a covered illness due to exposure to a toxic substance at a DOE facility, § 30.5(ii) sets out the same definition for

toxic substance

that originally appeared in DOE's regulations for former Part D at 10 CFR 852.2 for use under Part E. As DOE explicitly indicated when it published its final regulations on August 14, 2002 (67 FR 52843), noise is not considered to be a “toxic substance” for purposes of the compensation program.

Information in Program Records

Existing § 30.11 describes how all records relating to claims for benefits filed under the Act are covered by the Privacy Act and are described in a system of records entitled DOL/ESA-49. This system of records is maintained by and under the control of OWCP. All records relating to a claim obtained by OWCP from the claimant or any other source are maintained by OWCP in a case record. A claimant may obtain, without charge, one complete copy of the records in the case record. This will allow a claimant to obtain a copy of any medical, employment, exposure or other evidence that might be of use to a physician of the claimant's choosing in providing medical evidence to OWCP necessary to establish a claimant's entitlement to benefits available under the Act. Should OWCP obtain further records after furnishing a free copy of a case record to a claimant, the claimant can obtain one copy of those further records, without charge, by requesting them from OWCP.

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

This subpart is substantially similar to the current subpart B, which describes the early steps in OWCP's claims adjudication process and includes a general description of the evidence an employee or survivor must submit to meet his or her burden of proof under Parts B and E of the Act. As explained in § 30.111, the claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any claim category in Part B or Part E. It also explains the special procedures used in the adjudication of claims for radiogenic cancer under Parts B and E that do not involve members of the Special Exposure Cohort.

Filing Claims for Benefits Under Part B and Part E of EEOICPA

Current §§ 30.100, 30.101 and 30.102 (renumbered as § 30.103 in this rule) have been revised to accommodate the addition of Part E claims to the existing claims adjudication process. Sections 30.100 and 30.101 now include new language that a claim for benefits under Part E, including a claim originally filed with DOE as a claim for assistance under former Part D (which was

repealed on October 28, 2004), will not be considered to be “filed” earlier than October 30, 2000. Also, the language in these same two sections that employees or survivors can choose to file a claim for benefits for only certain potentially compensable conditions and forgo filing for a condition for which a payment has been received that would necessitate an offset of EEOICPA benefits is new, although it describes the current policy of OWCP. New § 30.102 describes how covered Part E employees who have previously been awarded impairment or wage-loss benefits under Part E of the Act can file claims for additional periods of wage-loss and/or an increased percentage of permanent impairment.

Verification of Alleged Employment

Current § 30.106, which describes DOE's employment verification responsibilities in the context of claims of survivors, is consolidated into § 30.105 in this rule, which now describes these responsibilities in the context of both survivors' and employees' claims. New § 30.106 sets out the current practice of OWCP and DOE of arranging for other entities to provide OWCP with information needed to verify alleged employment, when necessary.

Evidence and Burden of Proof

Existing § 30.111 describes how a claimant bears the burden of proving by a preponderance of the evidence the existence of each and every criterion necessary to establish eligibility under any compensable claim category. OWCP collects a variety of evidence that will assist a claimant in meeting his or her burden of proof. In addition to employment verification information obtained by OWCP, discussed above, in the course of developing a case OWCP obtains from DOE and its contractors and subcontractors and other sources a variety of medical, environmental, exposure and other information relevant to individual employees or the facilities in general.

When a claims examiner reviews a submission by a claimant and determines that the medical evidence is insufficient to meet the claimant's burden of proof, the claimant can be referred to one or more physicians with appropriate expertise for an opinion on any issue or issues relevant to adjudication of the claim. When OWCP makes these referrals, the physician will be asked relevant questions and provided with a Statement of Accepted Facts prepared by OWCP and all relevant records from the case file. Alternatively, and in the case of a claim by a survivor, a Statement of Accepted Facts prepared by OWCP and all relevant records can be forwarded to one or more physicians for their review without the necessity of an examination. Thus, in a case where the claimant is unable to provide sufficient medical evidence from a physician with the necessary expertise, OWCP can, at its expense, obtain the opinion of a physician with the appropriate expertise.

Special Procedures for Certain Radiogenic Cancer Claims

Section 30.115, which explains the special procedures used in the early adjudication of claims for radiogenic cancers that do not seek Part B benefits under the Special Exposure Cohort provisions, has been modified slightly to include new language stating that except for Part B claims previously accepted under section 7384u of the Act, all claims seeking benefits under Part E for radiogenic cancers will be forwarded to HHS for dose reconstruction.

Subpart C—Eligibility Criteria

This subpart is substantially the same as current subpart C (§§ 30.200 through 30.226), with a number of small changes in language to reflect the new responsibilities of DOL under EEOICPA that have resulted from the enactment of Part E. In addition to these small changes (and other changes to reflect existing administrative practices), subpart C has been amended to include the substantive changes discussed below.

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E

Current § 30.210 sets forth the criteria for eligibility for claims relating to radiogenic cancer under Part B of EEOICPA; these criteria are quite specific and reflect Part B's focus on a narrowly defined list of occupational illnesses. The criteria for claims relating to radiogenic cancer under Part E of EEOICPA differ (due to differences between Parts B and E) from the more specific eligibility criteria for radiogenic cancer claims under Part B and describe a particular subset of the broad range of covered illnesses that may be compensated under Part E. However, both Part B and Part E provide coverage for radiogenic cancer. Therefore, current § 30.210 has been designated as subsection (a) of amended § 30.210, and new subsection (b) sets forth the statutory eligibility criteria for claims relating to radiogenic cancer under new Part E. Under Part E, a claim for radiogenic cancer will be compensable if it is “at least as likely as not” that the cancer is due to an employee's work-related exposure to radiation; thus, using the “probability of causation” (PoC) guidelines established by HHS, this type of claim will be compensable if the probability of causation is 50% or higher.

Current § 30.213, which describes how OWCP makes a finding whether a radiogenic cancer claimed under Part B was sustained in the performance of duty under section 7384n of the Act, has been modified slightly to more fully describe OWCP's required use of HHS's regulatory PoC guidelines in its adjudication of those questions. OWCP has also decided to utilize the same HHS PoC guidelines to determine whether exposure to radiation at a DOE facility or a RECA section 5 facility was at least as likely as not a significant factor in causing or contributing to a cancer for the purposes of Part E.

The radioepidemiological tables upon which the PoC guidelines are based were originally developed in response to a 1983 congressional directive in the Orphan Drug Act (Pub. L. 97-414, 42 U.S.C. 241 note), which required HHS to “devise and publish radioepidemiological tables that estimate the likelihood that persons who have or have had any of the radiation-developed cancers and who have received specific doses prior to the onset of such disease developed cancer as a result of such doses.” Congress required determinations whether radiogenic cancers were to be considered sustained in the performance of duty for the purposes of Part B to be based upon those tables in section 7384n(c) of EEOICPA.

OWCP has decided to use those same HHS regulatory PoC guidelines in its adjudication of claims for radiogenic cancer under Part E for several reasons. First, it recognizes that while it is not practical to legislate specific mechanisms to determine causation for the numerous medical conditions that exposure to tens of thousands of toxic substances at covered facilities could potentially cause, Congress has acknowledged that use of HHS's PoC guidelines is an appropriate mechanism to determine whether a cancer was at least as likely as not caused by work-related radiation exposure. In view of the lack of a scientific basis for attributing any particular case of cancer to any cause, the epidemiological approach taken by Congress in Part B, and now to be utilized by OWCP for Part E, is more likely to result in a scientifically valid and consistent determination process than merely attempting to reach a determination

based on opinions likely to contain a substantial speculative component. Thus, the requirement in amended § 30.213 that OWCP use HHS's PoC guidelines to adjudicate claims for radiogenic cancer under Part E is both appropriate and rational.

This conclusion finds further support in the

Report of the NCI-CDC Working Group to Revise the 1985 NIH Radioepidemiological Tables

(September 2003), which found that the PoC model was a viable method to adjudicate claims for radiation-related instances of cancer that appropriately summarized “the likelihood that prior radiation exposure might be causally related to cancer occurrence.” Use of the PoC guidelines for claims under both Part B and Part E will allow OWCP to adjudicate the entitlement of radiogenic cancers that are potentially compensable under Part B and Part E in a uniform manner. Any process for determining coverage of claims for radiogenic cancers that would yield inconsistent results as to whether that cancer is covered under Parts B and E is unlikely to be understood or accepted by claimants and other stakeholders.

The determination by OWCP to utilize the HHS PoC guidelines will only apply to a determination whether a cancer was contracted solely through exposure to radiation at a DOE facility or a RECA section 5 facility, as appropriate. The HHS PoC guidelines will not be used to determine if a cancer claimed under Part E was contracted through exposure to radiation combined with exposure to one or more other toxic substances because the risk models that were used by HHS to develop the PoC guidelines for cancer at 42 CFR part 81 only address radiation exposure. When it issued those regulations on May 2, 2002 (67 FR 22297-22298), HHS expressly noted that “[n]one of the risk models explicitly accounts for exposure to other occupational, environmental, or dietary carcinogens. Models accounting for these factors have not been developed and may not be possible to develop based on existing research.”

Thus, when a claim for cancer under Part E cannot be accepted based on exposure to radiation alone, because the PoC was found to be less than 50%, the claimant will be given an opportunity to establish that the cancer was caused by a combination of exposure to radiation and exposure to one or more other toxic substances. OWCP will adjudicate those claims for cancer allegedly due to exposures to radiation combined with exposure to one or more other toxic substances using the eligibility criteria for other covered illnesses in new §§ 30.230 through 30.232 discussed below.

Eligibility Criteria for Other Claims Under Part E

New § 30.230 sets forth the criteria established by section 7385s-4 of EEOICPA that OWCP uses to determine if an employee contracted a covered illness. In addition, this new section also states that these criteria are satisfied by showing that the covered illness at issue was accepted in a prior claim under Part B of EEOICPA or section 5 of RECA, or that the Secretary of Energy under the former Part D accepted a Physicians Panel positive determination regarding the existence of the covered illness prior to the effective date of this rule. Section 30.230(d)(2) is included for the purpose of informing claimants of the kinds of information that OWCP will consider in determining whether it is “at least as likely as not” that exposure to a toxic substance at a Department of Energy facility or at a RECA section 5 facility, as appropriate, was a significant factor in aggravating, contributing to, or causing the illness. OWCP will make that determination after carefully weighing all of the evidence supplied by the claimant or obtained by OWCP from other sources.

Two of the elements that a claimant must establish before OWCP can determine that an employee contracted a covered illness are that the employee was employed at either a DOE facility or a RECA section 5 facility, and that he or she was exposed to a toxic substance at work. New § 30.231 describes how to prove employment at either a DOE facility or a RECA section 5 facility, as well as how to prove that the employee was exposed to a toxic substance while so employed.

New § 30.232 sets forth how a claimant can prove that the employee was diagnosed with a covered illness, or has sustained an injury, illness, impairment or disease as a consequence of a covered illness. This section describes the type of medical information, releases, and work histories that must be submitted to enable OWCP to make this finding. The section also makes it clear that the claimant may present other evidence deemed necessary by OWCP to establish the diagnosis or prove the existence of an injury, illness, impairment or disease.

Subpart D—Adjudicatory Process

This subpart is substantially the same as current subpart D (§§ 30.300 through 30.320), with a number of small changes in language to emphasize that this subpart only applies when OWCP adjudicates claims for entitlement under the Act; certain other decisions are made using other administrative processes (such as those used to resolve medical billing disputes). In addition to these small changes, subpart D has been amended to include new § 30.301, which implements new section 7384w in Part B of the Act, providing that an OWCP district office claims examiner and/or a Final Adjudication Branch (FAB) reviewer may, in the exercise of their discretion, issue subpoenas for persons and documents when adjudicating a Part B claim. A subpoena will be issued at the request of a claimant only by a FAB reviewer in connection with FAB's adjudication process for Part B claims. Section 30.301 also sets forth the methods for requesting issuance of the subpoenas.

Section 30.302 is also new and contains information about the fees and costs payable to lay and expert witnesses who are subpoenaed by OWCP. The section explains who is responsible for making the payment to the witness, and the factors that will govern this determination. New § 30.303 is intended to clarify the duties of both DOE and/or DOE contractors to provide information or documents in response to a request from OWCP under Part E of EEOICPA.

Hearings and Final Decisions on Claims

Section 30.317 has been rewritten to better describe the FAB's discretion to return a claim to the district office for the issuance of a new recommended decision before issuing a final decision. This new language is being added so the regulations reflect OWCP's current administrative practice and is not intended to change the substance of the current regulation. Similar minor edits of a non-substantive nature were made to § 30.318(a) and (b). Section 30.318(c) is new and is being added to more fully explain OWCP's existing policy regarding objections to the PoC methodology established by HHS regulations, and to OWCP's application of that methodology. Section 30.319(c), regarding requests for reconsideration of FAB decisions, has been revised to describe current procedures for reviewing these requests, granting or denying them, and determining the effective date of a resulting new final decision. This revision reflects current OWCP practice with no substantive changes intended.

Subpart E—Medical and Related Benefits

This subpart is substantially the same as current subpart E (§§ 30.400 through 30.422), since only minor modifications

were necessary in order to accommodate the addition of approved claims under Part E of EEOICPA to OWCP's existing processes for providing authorized medical benefits and treatment. No changes were made to the sections that describe the processes OWCP uses to refer employees for directed medical examinations, which will also occur in the adjudication of claims under Part E.

Subpart F—Survivors; Payments and Offsets; Overpayments

The overall organization of this subpart is substantially the same as the current subpart F (§§ 30.500 through 30.513), other than the slight modifications that were necessary throughout the subpart to accommodate the addition of approved claims under Part E of EEOICPA to OWCP's existing claims payment processes. The amended subpart also contains regulatory language implementing OWCP's newly granted statutory authority to waive the required recovery of such benefits.

Survivors

The amended versions of §§ 30.500 through 30.502 now identify those persons who may be potentially eligible to receive monetary compensation under Part B and/or Part E, based on their relationship to a deceased covered Part B employee or a deceased covered Part E employee. These sections also highlight the differences in the order of precedence that OWCP must use to determine which eligible surviving beneficiary or beneficiaries to pay under Parts B and E of EEOICPA.

Section 30.500(a)(2) contains the statutory definition of a “child” and also includes the more restrictive statutory criteria that an individual must satisfy to be a “covered” child under Part E. These criteria for Part E of the Act include the same statutory definition of a “child” used in Part B of the Act, as well as specific age, educational or self-sufficiency criteria that must be met as of the date of the deceased Part E employee's death. As amended by this rule, § 30.501 still describes the order of precedence among survivors under EEOICPA; the order of precedence that OWCP must use under Part B now appears without substantive change as § 30.501(a), while new § 30.501(b) describes the order of precedence for Part E survivor claims. It should be noted that survivors who are either grandparents, grandchildren or parents of a deceased Part E employee are not considered eligible surviving beneficiaries of that individual under Part E. Also, the comparable alternative order of precedence provisions in § 30.501(a)(6) for Part B and § 30.501(b)(3) for Part E, which describe those statutorily mandated instances when a surviving spouse must share a lump-sum payment with minor children of the deceased employee, are not triggered under the exact same circumstances—§ 30.501(a)(6) requires that the child of the deceased Part B employee be a minor at the time benefits are paid by OWCP, while § 30.501(b)(3) only requires that the child of the deceased Part E employee satisfy the additional criteria for a “covered” child (as described above) as of the time of the death of the employee, not also at the time of payment of benefits by OWCP.

Payments and Offsets

Amended §§ 30.505 through 30.507 and newly added § 30.509 set out the rules for the payment of monetary compensation to claimants under EEOICPA for both Part B and Part E. Although the process for paying claims under both parts of the Act is similar, there are some differences that are reflected in these amended sections. New § 30.505(d) describes the maximum aggregate compensation that is payable under Part E (exclusive of medical benefits), as set forth in 42 U.S.C. 7385s-12. The statute limits the aggregate compensation (other than medical benefits) that OWCP may pay under Part E to all claimants for each individual whose illness or death serves as a basis for compensation or benefits under Part E to a total of $250,000. This is the only reading of the statutory language that is consistent with the statutory requirement that the computation of both impairment benefits and wage-loss benefits under § 7385s-2 be based upon impairment or wage-loss that is “the result of any covered illness.” This reading is also consistent with congressional intent, as reflected in the Conference Report for Public Law 108-375, which states that the “maximum aggregate benefit available under [Part] E of EEOICPA is $250,000.”

See

H.R. Conf. Rep. No. 108-767, at 894 (2004).

Newly added § 30.509 describes the option that certain claimants under Part E have to choose between receiving the benefits payable to them as a survivor, and the benefits that would have been payable to the deceased covered Part E employee if he or she were still living at the time of payment. This option is contained in 42 U.S.C. 7385s-1(2)(B), and new § 30.509 notes that claimants will only have the opportunity to make this choice in certain limited circumstances. First, a survivor of a covered Part E employee may choose to exercise this option only if the employee died after filing his or her Part E claim (or a claim under former Part D), but prior to receiving any compensation under the Act. In addition, the covered Part E employee's death must have been solely caused by a non-covered illness or illnesses for this option to be available to the survivor. If both of these requirements are met, it is likely that a survivor would choose to receive the benefits that the deceased covered Part E employee would have received since, in that situation, no survivor benefits would be payable for the death. Section 30.509(c) points out, however, that since impairment determinations can only be made in conformance with subpart J of these regulations, and therefore can only be made if the case record contains rationalized medical evidence that is sufficiently detailed to meet the pertinent requirements of the American Medical Association's

Guides to the Evaluation of Permanent Impairment

(AMA's

Guides

), OWCP will not make an impairment determination for a deceased covered Part E employee if the medical evidence in the case record does not satisfy those requirements.

Overpayments

Amended §§ 30.510 through 30.512 are substantially the same as the current versions of these sections and continue to describe how OWCP identifies overpayments, notifies individuals that they were overpaid, and together with new §§ 30.513 through 30.520, considers requests by individuals to waive recovery of such overpayments under the new statutory authority granted DOL by Congress in section 7385j-2 of EEOICPA.

New § 30.513 sets out the initial requirement in 42 U.S.C. 7385j-2(b) that only those individuals who were “without fault” in the creation of an overpayment of EEOICPA benefits may request waiver of recovery of the overpayment. If the individual satisfies this threshold requirement, new § 30.514 describes the two statutory criteria, also found in section 7385j-2(b), that OWCP will use to evaluate the individual's request for waiver. Waiver of recovery may be granted by OWCP if either: (1) Recovery of the overpayment would defeat the purpose of the EEOICPA; or (2) recovery of the overpayment would be against equity and good conscience. These two criteria are discussed in greater detail in new §§ 30.516 and 30.517, respectively, which set out the general parameters that OWCP will observe when it decides if a request for waiver satisfies either of the two statutory criteria. New § 30.515 also notes that OWCP will not automatically find the individual to be

“without fault” in the creation of an overpayment simply because OWCP erred in making the payment. Any such error on OWCP's part cannot vitiate the statutory criteria for eligibility to any benefits payable out of the fund established by Congress in section 7384e(d) of the Act.

To enable OWCP to consider requests for waiver of recovery of overpayments, and to set a reasonable schedule for repayment of the overpayment if waiver is denied, new § 30.518 notes that OWCP may require the recipient of an overpayment of compensation to submit pertinent information relating to his or her income, expenses and assets. This same section also notes that a failure to submit this requested information within 30 days of the request from OWCP will result in the denial of any request for waiver of recovery, and that no further requests for waiver will be considered until the requested information is provided to OWCP. New § 30.519 notes that after considering any such evidence or argument submitted in support of a waiver request, OWCP will issue a final decision on the matter of the overpayment, and that the adjudicatory processes described in subpart D will not be used to issue these particular decisions. Since a decision whether to waive recovery of an overpayment is not a decision on an individual's underlying entitlement under the Act and is similar to certain other decisions that OWCP issues (like decisions on medical billing disputes) without using the adjudicatory processes described in subpart D, any such decision will be issued by the OWCP district office with jurisdiction over the claim.

Existing § 30.513 has been modified and now appears as new § 30.520 in this rule. As the former § 30.513 did, this new section notes the statutory authority, independent from EEOICPA, that OWCP has to recover overpayments of EEOICPA benefits. It also notes OWCP's new authority, derived from 42 U.S.C. 7385j-2(a), to recover an overpayment of EEOICPA benefits by decreasing any later benefit payments to which the overpaid individual is entitled.

Subpart G—Special Provisions

This subpart is substantially the same as current subpart G (§§ 30.600 through 30.620), other than the slight modifications that were necessary in order to accommodate the addition of claims under Part E of the Act to the existing regulations governing third party liability, and some minor clarifications of the regulations describing the effect of tort suits against beryllium vendors and atomic weapons employers on claims under Part B of the Act. This subpart also contains a fuller regulatory description of the restrictions on representative fees in sections 7385g and 7385s-9 of EEOICPA, as well as several new sections that describe how OWCP will “coordinate” its payment of Part E benefits with benefits received under a state workers' compensation system for the same covered illness or illnesses.

Representation

While §§ 30.600, 30.601 and 30.602 remain substantially the same as in the current rule, § 30.603 has been amended to better describe the fees that may be collected by a representative who assists with an EEOICPA claim. This section also identifies DOJ as the executive branch department with the authority for prosecuting violations of the fee-for-service limitations in the Act. Lastly, amended § 30.603 clarifies the statement in existing § 30.603 that the fee limitations do not apply to representative services rendered in connection with a petition filed with a U.S. District Court or any subsequent appeal.

Coordination of Part E Benefits With State Workers' Compensation Benefits

Section 7385s-11 of EEOICPA requires that Part E benefits be coordinated with state workers' compensation benefits. This reduces the possibility of claimants receiving duplicate payments for the same covered illness. While this provision appears to create tension between it and section 7385 of EEOICPA (now applicable to both Parts B and E), which excludes workers' compensation benefits from the general offset required by that section, OWCP is implementing the provisions of section 7385s-11 in order to effectuate all of the provisions of the recent amendments. Section 7385s-11 provides specific authority to coordinate Part E benefits and amounts received under state workers' compensation laws. OWCP views the more specific authority in that section as taking precedence over the general exclusion in section 7385, because failing to do so would, in effect, negate the enactment of section 7385s-11. New §§ 30.625, 30.626 and 30.627 thus briefly describe how OWCP may coordinate benefits payable under Part E with certain payments the claimant receives under a state workers' compensation program for the same covered illness. Section 30.625 generally discusses what “coordination of benefits” means for purposes of administering Part E. Section 30.626 discusses how OWCP will perform this required coordination of benefits, including how it will calculate the amount of any coordination. Section 30.627 indicates that OWCP has sole authority to waive the coordination of benefits, in accordance with the explicit terms of section 7385s-11(b) of the Act, and discusses circumstances that might warrant such a waiver.

Subpart H—Information for Medical Providers

This subpart is substantially the same as current subpart H (§§ 30.700 through 30.726), modified slightly throughout to reflect current forms and billing terminology, and also to accommodate minor changes to OWCP's medical bill processing system. It also contains one change of a substantive nature in § 30.722, which is one of the sections that describes the process OWCP uses to exclude medical providers from participation in the EEOICPA program. The substance of current § 30.722 now appears as subsection (b) of amended § 30.722, and a new subsection (a) has been added to permit medical providers to request subpoenas upon a showing of good cause in exclusion proceedings that involve medical services provided under Part B of EEOICPA. Subpoenas are now available under those particular circumstances, pursuant to the authority granted by new section 7384w in Part B of EEOICPA.

Subpart I—Wage-Loss Determinations Under Part E

Subpart I is new and sets forth the procedures that OWCP uses to determine whether a covered Part E employee sustained wage-loss as a result of contracting a covered illness, and the amount of any such wage-loss that is compensable under Part E of EEOICPA to covered Part E employees, and survivors of deceased covered Part E employees.

General Provisions

Section 30.800 indicates that pursuant to section 7385s-2(a)(2) of EEOICPA, years of wage-loss occurring up to and including the calendar year that a covered Part E employee reaches “normal retirement age” may be compensable under Part E. This section further notes that in making these determinations, OWCP is required to make findings regarding the “average annual wage” of the covered Part E employee prior to contracting a covered illness, the percentage of such average annual wage the covered Part E employee earned during the alleged subsequent calendar years of wage-loss, and whether the wage-loss during the

years in question was due to the covered illness.

Certain terms used in determining compensation based on wage-loss are defined in the statute or these regulations, and are compiled in § 30.801.

Average annual wage

refers to the baseline wage against which OWCP will measure a subsequent calendar-year wage earned by a covered Part E employee, and is defined in § 30.801(a) the same way that the term is defined in section 7385s-2(a)(2)(A)(ii) of EEOICPA. Given the specific language used in that section of the Act, OWCP will determine that the average annual wage of a covered Part E employee is $0 if he or she was retired during the 12 quarters immediately preceding the quarter during which he or she first experienced wage-loss due to exposure to a toxic substance at a DOE facility or RECA section 5 facility, as appropriate. Section 30.801(b) defines

normal retirement age

as the age at which an employee may receive an unreduced Social Security retirement benefit, which is the same way this statutory term is described in section 7385s-2(a)(2)(A)(iii). That age varies (by date of birth) and is set by section 216(l) of the Social Security Act, 42 U.S.C. 416(l). Because OWCP will make its determinations under this subpart using quarterly periods, many of the regulatory terms used in subpart I refer to quarters of years rather than months. Section 30.801(c) thus defines

quarter

as the three-month period January through March, April through June, July through September, or October through December. Section 30.801(d) indicates that a

quarter during which the employee was unemployed

means any quarter during which the covered Part E employee had $700 (in constant 2005 dollars) or less in wages, unless the quarter is one during which the employee was retired. However, claimants have the opportunity to submit probative factual evidence that the employee was actually unemployed during a time period other than a quarter as defined in § 30.801(c). If probative evidence of unemployment using a time period other than a quarter is submitted, OWCP will decide if, in the sole exercise of its discretion, it should modify its finding regarding the average annual wage of the covered Part E employee.

Finally, § 30.801(e) defines a

year of wage-loss

as a calendar year in which the employee's earnings were less than what OWCP found to be his or her average annual wage, after such earnings have been adjusted by the Consumer Price Index for All Urban Consumers (CPI-U), as established by the Bureau of Labor Statistics, to reflect their value in the year in which the employee first experienced wage-loss due to exposure to a toxic substance at a facility covered by the program. As an example of how this wage adjustment will be made, assume that a covered Part E employee's average annual wage is found to be $50,000 (averaging his wages for the twelve quarters from the last quarter of 1984 through the third quarter of 1987), and that for the calendar year 1987 (the year in which he first experienced wage-loss due to a covered illness during the fourth quarter) the CPI-U is 100. If the employee's subsequent wages in calendar year 1988 did not rise because medical restrictions due to his covered illness forced him to transfer to a lower paying position that paid $45,000 in 1987 and $50,000 in 1988, and the CPI-U for 1988 was 105, OWCP will adjust the employee's 1988 earnings to reflect their value in 1987 by performing the following calculation: $50,000 (in 1988 dollars) ÷1.05 = $47,619 (in 1987 dollars). In that instance, OWCP would conclude that the covered Part E employee had sustained a

year of wage-loss

in 1988 as defined by § 30.801(e) because he earned less in adjusted dollars in 1988 than his average annual wage determined by § 30.801(a), despite the fact that his earnings in 1988 equaled his average annual wage.

Evidence of Wage-Loss

Section 30.805 describes the factual evidence of earnings that OWCP will rely upon to determine the average annual wage of a covered Part E employee, and the duration and extent of such employee's compensable wage-loss. In some situations, OWCP may rely upon earnings information that has been reported to the Social Security Administration, but may also rely upon additional earnings information submitted by or requested from a claimant as described below in connection with § 30.806. Subsection (b) of § 30.805 also indicates that in addition to factual evidence of a covered Part E employee's earnings, the claimant must submit rationalized medical evidence that is of sufficient probative value to establish, to the satisfaction of OWCP, that the period of wage-loss at issue is causally related to the covered Part E employee's covered illness. These two types of evidence are necessary to establish compensable wage-loss under the explicit language of section 7385s-2(a)(2)(A)(iii) of EEOICPA.

As noted in the preceding paragraph, § 30.806 provides claimants with the opportunity to submit factual evidence of earnings from another source that, if it is found by OWCP to be both authentic and acceptable as evidence that was produced in the ordinary course of business due to the covered Part E employee's employment, may be used to support an assertion of a different average annual wage for the covered Part E employee, or a greater duration or extent of wage-loss, than the evidence described in § 30.805(a) would support. If OWCP receives this evidence from a claimant, § 30.806 indicates that OWCP will consider it when it determines, in the exercise of its discretion, the average annual wage and/or wage-loss of the covered Part E employee in accordance with §§ 30.811 and 30.812.

Determinations of Average Annual Wage and Percentages of Loss

After it receives the factual and medical evidence described in §§ 30.805 and 30.806, OWCP will calculate the average annual wage of a covered Part E employee pursuant to the method described in § 30.810. In general, that section notes that OWCP will add up the covered Part E employee's earnings during the 12 quarters prior to the quarter in which the employee first experienced wage-loss due to a covered illness, excluding any quarters during which the employee was unemployed (unless the claimant has submitted sufficient earnings information from a different source), divide that figure by the number of quarters during which the employee was not unemployed, and multiply the result by four to derive his or her average annual wage.

Subsections (a) and (b) of § 30.811 indicate that OWCP will then compare the average annual wage of a covered Part E employee with his or her earnings in later calendar years (after adjusting those earnings in accordance with § 30.801(e)) to ascertain the calendar years during which the employee experienced wage-loss. Subsections (c) and (d) of § 30.811 then provide that OWCP will aggregate the number of calendar years of wage-loss in which the employee's adjusted earnings did not exceed 50 percent of his or her average annual wage, and the number of calendar years of wage-loss in which those earnings exceeded 50 percent but not more than 75 percent of such average annual wage, and will pay the employee $15,000 or $10,000 per calendar year, respectively.

Section 30.812 explains that a covered Part E employee who has been previously awarded compensation for wage-loss may file claims for additional calendar years of wage-loss subsequent to any calendar years for which he or she has already been paid

compensation. Consistent with the statute, this section provides that no compensation for wage-loss will be payable for any calendar year of wage-loss beyond the calendar year in which the employee reached his or her normal retirement age set forth in section 216(l) of the Social Security Act, 42 U.S.C. 416(l).

Special Rules for Certain Survivor Claims Under Part E

Section 30.815 contains the special rules that apply to survivor claims involving wage-loss under Part E of EEOICPA. Subsection (a) indicates that for each calendar year after the calendar year in which a covered Part E employee died, through and including the calendar year in which the employee would have reached his or her normal retirement age, OWCP will presume that the employee earned wages that did not exceed 50 percent of his or her average annual wage. Subsection (b) indicates that except as provided in § 30.815(a), OWCP will calculate the wage-loss of a deceased covered Part E employee in accordance with the provisions of §§ 30.800 through 30.811. Finally, subsection (c) of § 30.815 describes how OWCP will determine if the eligible surviving beneficiary(s) of a deceased covered Part E employee is entitled to receive additional compensation in the amount of either $25,000 or $50,000 based on either ten or 20 aggregate calendar years of wage-loss experienced by the employee, as provided by section 7385s-3(a)(2) or (3) of the Act.

Subpart J—Impairment Benefits Under Part E

This new subpart sets forth the procedures that OWCP uses to determine if a covered Part E employee is entitled to compensation under Part E based on impairment that is the result of a covered illness. It includes provisions describing how OWCP determines the extent of an employee's impairment that is attributable to a covered illness, the submission of medical evidence of impairment, what OWCP considers to be a ratable permanent impairment in certain defined situations, and the potential eligibility of covered Part E employees for additional impairment benefits following an award of impairment benefits by OWCP.

General Provisions

Section 30.900 describes the criteria, set forth in sections 7385s, 7385s-2, 7385s-4 and 7385s-5 of EEOICPA, that an employee must satisfy to qualify for an impairment award under Part E: (1) That he or she is a covered Part E employee found to have contracted a covered illness through exposure to a toxic substance at a DOE facility or RECA section 5 facility, as appropriate; and (2) that he or she has been found by OWCP to have an impairment that is the result of the accepted covered illness.

Section 30.901 describes the general process that OWCP uses, based on section 7385s-2 of the Act, to determine if a covered Part E employee's claim for an alleged impairment attributable to a covered illness is compensable. Subsection (a) indicates that OWCP will consider medical reports from physicians that include opinions regarding the extent of whole person impairment of all organs and body functions compromised by a covered illness, and the extent of such impairment attributable to the employee's covered illness. Subsection (b) provides that OWCP will determine the employee's minimum impairment rating in accordance with the AMA's Guides, based on medical reports from physicians trained to perform these impairment evaluations, and subsection (c) of § 30.901 notes that OWCP will specify criteria that physicians must meet to perform impairment evaluations. Those criteria, which will include certification by a relevant medical board and other objective factors necessary to qualify a physician to perform an impairment evaluation under Part E, will be available to claimants, physicians and members of the public on OWCP's website. Finally, subsection (d) of § 30.901 provides that if one or more percentage points of the minimum impairment rating are found by OWCP to be the result of a covered illness, the employee is entitled to an award based on those percentage points. Section 30.902 describes the formula that OWCP uses to calculate impairment awards, from section 7385s-2(a)(1) of the Act.

Medical Evidence of Impairment

There are two ways that OWCP can obtain an impairment evaluation of a covered Part E employee that is sufficient to permit OWCP to adjudicate impairment benefits. Section 30.905(a) indicates that OWCP can ask the employee to undergo an impairment evaluation performed by a physician who meets the criteria OWCP has identified. Alternatively, subsection (b) of § 30.905 provides that an employee can obtain an impairment evaluation at his or her own initiative and submit it to OWCP for consideration, but notes that OWCP will only deem it appropriate to consider if it satisfies three criteria indicative of probative value: (1) It was performed by a physician who meets the criteria identified by OWCP relating to the covered illness or illnesses in question; (2) it was performed no more than one year prior to the date it was received by OWCP; and (3) it also conforms to all other applicable requirements set out in the regulations in this part.

OWCP will pay for impairment evaluations, except in certain defined circumstances, as indicated in § 30.906. That section also notes that while OWCP will only pay for one impairment evaluation obtained by an employee, it may direct the employee to undergo additional evaluations at its expense if such evaluations are warranted in its discretion.

Section 30.907 describes how the district office evaluates the evidence of impairment in the case record. Subsection (a) notes that the employee may submit arguments and/or additional medical evidence of impairment to challenge an impairment evaluation in the case file at any time before the district office issues a recommended decision on the claim. However, subsection (a) also states that the district office will not consider an additional impairment evaluation, even if it differs from the impairment evaluation provided under §§ 30.905 or 30.906, if the report fails to conform to the criteria listed in § 30.905(b).

Section 30.907(b) notes that in those situations where the district office obtains an additional impairment evaluation of a covered Part E employee that differs from the impairment evaluation that was provided under §§ 30.905 or 30.906, the district office will base the recommended decision on the alleged impairment on the impairment evaluation it considers to have the greatest probative value, including any obtained through a directed examination deemed necessary under §§ 30.410 or 30.411. Section 30.908 addresses the FAB's evaluation of the evidence of impairment in the case record. Consistent with § 30.907(a), which describes how the district office considers medical evidence of impairment, § 30.908(a) notes that if a claimant submits an additional impairment evaluation to the FAB that differs from the impairment evaluation relied upon by the district office, the FAB will not consider the additional impairment evaluation if it fails to satisfy the criteria listed in § 30.905(b). Subsection (b) provides that the claimant has the burden of proving that the additional impairment evaluation submitted is more probative than the evaluation relied upon by the district

office. Subsection (c) of § 30.908 indicates that if a claimant submits an additional impairment evaluation that differs from the impairment evaluation relied upon by the district office, the FAB will review all relevant evidence of impairment in the case record and base its final decision regarding impairment on the evidence it considers most probative.

Ratable Medical Impairments

The Conference Report for Public Law 108-375 suggests that for those impairments for which the AMA's

Guides

do not provide a method to assign a numerical percentage, the Department should devise another method to determine the amount of an impairment award to a covered Part E employee.

See

H.R. Conf. Rep. No. 108-767, at 893 (2004). The language of section 7385s-2(b), however, requires that a minimum impairment rating be determined in accordance with the AMA's

Guides

. In view of the inconsistency between that statutory language and the Conference Report, and the absence of any accepted system for calculating numerical impairment ratings for impairments that the AMA's

Guides

do not provide a method for calculating, OWCP is not doing so in this rulemaking. Thus, § 30.901(a) indicates that an impairment that cannot be assessed quantitatively as a percentage using the AMA's

Guides

will not be included in the impairment award. As an example of when this will occur, subsection (b) of § 30.910 specifically notes that a mental impairment that does not originate from a documented physical dysfunction of the nervous system, and thus cannot be assigned a numerical percentage using the AMA's

Guides

, will not be included in the minimum impairment rating.

Section 30.911(a) is derived from the AMA's

Guides

and indicates that only those impairments that are considered permanent are “ratable.” Subsection (a) provides that an impairment resulting from a covered illness will be included in the minimum impairment rating of the covered Part E employee only if OWCP finds that it has reached maximum medical improvement, meaning that the impairment is well-stabilized and thus unlikely to change substantially, with or without additional medical treatment. Subsection (b) of § 30.911, however, indicates that notwithstanding § 30.911(a), if OWCP finds that an employee's covered illness is in the terminal stages based on medical evidence contained in the case record, it will include an impairment that results from such covered illness in the minimum impairment rating of the employee, even if the impairment has not reached maximum medical improvement. OWCP has determined that in such situations, it is not likely that an impairment will undergo any significant improvement, and that the interest of awarding impairment benefits promptly to such employees outweighs the possibility that on occasion, an employee might receive compensation for an impairment resulting from a covered illness in the terminal stages that unexpectedly improves significantly.

Section 30.912 notes that a covered Part E employee who has previously been awarded impairment benefits by OWCP may file a claim for additional impairment benefits based on an increase in the minimum impairment rating attributable to the covered illness or illnesses from the impairment rating that formed the basis for the previous award of such benefits by OWCP. However, this section indicates that OWCP will only adjudicate claims for an increased rating that are filed at least two years from the date of the last award of impairment benefits, since to do otherwise would lead to obvious administrative inefficiencies. However, this waiting period will not apply to a claim for additional impairment that is based on an allegation that the employee contracted a new covered illness.

IV. Paperwork Reduction Act

This interim 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, 30.512, 30.518, 30.700, 30.701 and 30.702 of this rule, which relate to information required to be submitted by claimants and medical providers in connection with processing of bills, and overpaid individuals in connection with overpayments of EEOICPA benefits, were both submitted to and approved by OMB under the PRA, and the currently approved collections in OMB Control Nos. 1215-0054 (expires June 30, 2007), 1215-0055 (expires November 30, 2006), 1215-0137 (expires March 31, 2007), 1215-0144 (expires November 30, 2006), 1215-0176 (expires January 31, 2007), 1215-0193 (expires March 31, 2007) and 1215-0194 (expires March 31, 2007) will be revised to include new respondents added by this rule. The information collection requirements in this first group were not affected by any of the substantive changes that have been made in this rule.

The information collection requirements in §§ 30.100, 30.101, 30.103, 30.111, 30.112, 30.113, 30.114, 30.206, 30.207, 30.212, 30.213, 30.214, 30.215, 30.221, 30.222, 30.226, 30.415, 30.416, 30.417, 30.505 and 30.620 of this rule were also previously submitted to and approved by OMB under the PRA, and were assigned OMB Control No. 1215-0197 (expires August 31, 2007). The information collection requirements in this second group were also not affected by any of the substantive changes that have been made in this rule. However, this rule revises the currently approved collection in OMB Control No. 1215-0197 by adding six new information collection requirements, and also by incorporating the existing requirements in the currently approved collection in OMB Control No. 1215-0199 (expires January 31, 2006); this revision of a currently approved collection will be submitted to OMB for review under the PRA on the date of publication of this rule. The new information collection requirements in this rule are in §§ 30.102, 30.231, 30.232, 30.806, 30.905 and 30.907, and relate to information required to be submitted by either claimants or physicians as part of the EEOICPA claims adjudication process. While the information collection requirements in § 30.106 relating to information to be submitted by current and former DOE contractors and subcontractors, atomic weapons employers, beryllium vendors and other entities in possession of employment data for claimants are not new, they appear for the first time in this rule and will be incorporated into OMB Control No. 1215-0197 in this revision. The Department is proposing to create one new form to implement one of the new collections (see section A below). The remaining new and incorporated collections will be implemented without any specific form, or with a form currently in use in OMB Control No. 1215-0197 (see sections B through I below).

A. Claim for Additional Wage-Loss/Impairment: Form EE-10 (§ 30.102)

Summary:

Covered Part E employees who have previously been awarded benefits for wage-loss and/or impairment by OWCP may file claims for additional wage-loss and/or impairment benefits, if they experience another calendar year of wage-loss or an increase in their minimum impairment rating. Claims filed using Form EE-10 must be supported by sufficient factual and/or medical evidence to establish that the claimant is entitled to the benefits at issue, either factual evidence of another calendar year of compensable wage-loss or medical evidence of an

increased minimum impairment rating due to a covered illness or illnesses. All claimants filing Form EE-10 are required to swear or affirm that the information provided on that form is true, and are obligated to inform OWCP of any subsequent changes to that information.

Need:

A Form EE-10 claiming for additional wage-loss and/or impairment benefits is necessary to initiate OWCP's adjudication process for these additional claims filed by covered Part E employees.

Respondents and proposed frequency of response:

It is estimated that 1,877 respondents annually will file one Form EE-10.

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-10 is estimated to take an average of five minutes per respondent for a total annual burden of 156 hours.

B. Alternate Employment Verification Response (§ 30.106)

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 DOE is unable to verify the alleged employment history after reviewing records in its possession, but the alleged history identifies: (1) a beryllium vendor or DOE contractor or subcontractor that has been required by DOE to respond pursuant to 42 U.S.C. 7384v(c); or (2) some other entity in possession of pertinent employment data that has voluntarily agreed to respond, OWCP will ask the beryllium vendor, DOE contractor or subcontractor, or other entity to review data in its files regarding the employee and indicate if that data substantiates any periods of alleged covered employment listed on Form EE-3 or EE-4. This requirement is currently approved in OMB Control No. 1215-0199, and is being incorporated into this revision to an existing collection of information.

Need:

A documented 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 100 respondents annually will submit this collection of information a total of 20 times.

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 1,000 hours.

C. Employment History: Form EE-3 (§ 30.231)

Summary:

Employees and/or survivors claiming benefits under Part E of EEOICPA must establish, among other things, an employment history that includes at least one period of covered employment. Form EE-3 has been devised to elicit the basic factual information necessary to enable OWCP to make this particular finding of fact. In Form EE-3, the respondent (the employee or survivor) is asked to provide information with respect to his or her identity and contact information, the employee's identity, and the employee's complete employment history that includes dates of employment, the name and location of employers, position titles and descriptions of work performed, and information regarding any dosimetry badges worn. All respondents will be required to swear or affirm that the information provided on the Form EE-3 is true. Further, the employment history provided on Form EE-3 will be provided to DOE for verification.

Need:

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

Respondents and proposed frequency of response:

It is estimated that 8,176 Part E respondents annually will file one Form EE-3.

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-3 is estimated to take an average of 1 hour per response for a total added annual burden of 8,176 hours.

D. Employment History Affidavit: Form EE-4 (§ 30.231)

Summary:

As noted in section C above, employees and/or survivors claiming benefits under Part E of EEOICPA must establish, among other things, an employment history that includes at least one period of covered employment. In situations where the use of Form EE-3 may not be practicable (

e.g.

, due to a lack of available information), Form EE-4 may be used as an alternate method to provide OWCP with a basic employment history by affidavit. In Form EE-4, the respondent (someone other than the employee or survivor) is asked to provide information as to his or her identity and relationship to the employee, the employee's identity, and the employee's employment history that includes dates of employment, name and location of employers, descriptions of work performed, and an explanation of the basis for the employment history provided. All respondents will be required to swear or affirm that the factual information provided on the Form EE-4 is true. Further, the employment history provided on Form EE-4 will be provided to DOE or other entities for verification.

Need:

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

Respondents and proposed frequency of response:

It is estimated that 2,044 Part E respondents annually will file one Form EE-4.

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-4 is estimated to take an average of 30 minutes per response for a total added annual burden of 1,022 hours.

E. Medical Requirements: Form EE-7 (§ 30.232(a) and (b))

Summary:

Employees and/or survivors claiming benefits under Part E of EEOICPA (except for those who have received an award under section 5 of RECA) must establish, among other things, that the employee sustained a covered illness. Form EE-7 has been devised to elicit the type of medical and occupational evidence (prepared by medical providers) needed to enable OWCP to make this particular finding of fact. Claimants may also be required to submit additional medical and occupational evidence (prepared by medical providers) as necessary. Form EE-7 describes the general requirements for medical evidence submitted in support of a claim for a covered illness under Part E of EEOICPA.

Need:

Documentation of a covered illness is one of the elements that must be met to establish entitlement to benefits under Part E of EEOICPA.

Respondents and proposed frequency of response:

It is estimated that 8,176 Part E respondents annually will file one response to Form EE-7.

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 15 minutes per response for a total added annual burden of 2,044 hours.

F. Supplemental Medical Evidence (§ 30.232(c))

Summary:

Employees and/or survivors claiming that an injury, illness, impairment or disability was sustained as a consequence of a covered illness under Part E must submit a narrative medical report from a physician that shows a causal relationship between the claimed consequential injury, illness, impairment or disability and the covered illness. A standardized form or format will not be used to request submission of this information, which will be collected on an as-needed basis.

Need:

Medical evidence of causal relationship is necessary to establish entitlement to benefits for a consequential injury, illness, impairment or disability under EEOICPA.

Respondents and proposed frequency of response:

It is estimated that 1,500 Part E 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 15 minutes per response for a total added annual burden of 375 hours.

G. Alternative Wage-Loss Evidence (§ 30.806)

Summary:

OWCP may use wage data from the Social Security Administration and/or other third parties to make findings regarding the average annual wage and the nature and extent of compensable wage-loss of a covered Part E employee. If a claimant disagrees with the use of that data to make these findings, he or she may voluntarily submit records that were produced in the ordinary course of business due to the employee's employment and try to persuade OWCP that Social Security Administration or other wage data should not be used to make the findings in question. A standardized form or format will not be used to collect this information, which will vary widely among respondents and occur only occasionally.

Need:

OWCP must have alternative wage-loss evidence of sufficient probative value before it can calculate benefits payable for wage-loss experienced by a covered Part E employee.

Respondents and proposed frequency of response:

It is estimated that 800 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 400 hours.

H. Medical Evidence of Impairment (§ 30.905)

Summary:

OWCP must obtain contemporaneous medical evidence from a physician experienced in evaluating permanent impairment before it can determine the impairment rating of a covered Part E employee. If the medical evidence that is already in the case record does not meet these criteria when this stage in the claims adjudication process is reached, OWCP will inform the claimant of this deficiency and request that he submit medical evidence sufficient for it to determine his overall impairment rating, and the number of percentage points of his rating that are attributable to his covered illness or illnesses. Since requests for an impairment evaluation will necessarily be illness-specific, a standardized form or format cannot be used to request this information.

Need:

An impairment evaluation that meets OWCP's criteria must be in the case record before OWCP can determine the number of percentage points that are payable.

Respondents and proposed frequency of response:

It is estimated that 1,453 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 15 minutes per response for a total annual burden of 363 hours.

I. Additional Medical Evidence of Impairment (§ 30.907)

Summary:

After the district office receives an impairment evaluation that meets its criteria for compensating covered Part E employees, but before it issues a recommended decision on a claimant's impairment rating, the claimant may, on his own initiative and at his own cost, obtain additional medical impairment evidence supporting a higher rating and submit it to the district office for its consideration if it too meets the same criteria. A standardized form or format cannot be used to request this particular type of information because the impairment evaluation that it seeks to rebut will necessarily be specific to a particular employee.

Need:

Claimants may wish to submit additional impairment evidence that shows a higher rating before OWCP determines the number of compensable percentage points that are payable.

Respondents and proposed frequency of response:

It is estimated that 218 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 15 minutes per response for a total annual burden of 55 hours.

J. Total Annual Burden and Request for Comments

Total public burden:

The information collection requirements being either added to or incorporated into OMB Control No. 1215-0197 (described above in sections A through I) have a total public burden hour estimate of 13,591. Using the latest National average hourly earnings $15.95 (from the Bureau of Labor Statistics), the total added annual public cost for these information collection requirements is estimated to be $216,776. There are no recordkeeping or collection costs associated with Form EE-10. Because the information requested by the collections described in sections B through I is kept as a usual and customary business practice, there is no additional recordkeeping or collection cost associated with those collections. The only operation and maintenance cost will be for postage and mailing. An estimated 50% of the EE-10 forms will involve postage and mailing costs; the remainder will be received directly by DOL personnel or contractors. The EE-3 form always accompanies the initial claim form filed, therefore no additional postage or mailing is required. An estimated annual total of 17,130 mailed responses to these information collection requirements, at $0.37 (for postage) + $0.03 (for an envelope) per response, would be $6,852.

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 July 8, 2005.

V. Statutory Authority

Section 7384d of EEOICPA provides general statutory authority, which E.O. 13179 allocates to the Secretary, to prescribe rules and regulations necessary for administration of Part B of the Act. Section 7385s-10 provides the Secretary with the general statutory authority to administer Part E of the Act. Sections 7384t, 7384u and 7385s-8 provide the specific authority regarding medical treatment and care, including authority to determine 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.

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 by section 3(f)(1) of that Order. The payment of the benefits provided for by EEOICPA through the program administered pursuant to this regulatory action has an annual effect on the economy of $100 million or more. However, this rule does 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 defined by section 3(f)(1) of E.O. 12866. This 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 EEOICPA. The Department of Labor has also concluded that this 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 on the factors and assumptions set forth below, DOL's estimate of the aggregate cost of benefits and administrative expenses of this regulatory action implementing Part B and Part E of EEOICPA is, in millions of dollars:

FY2005

FY2006

FY2007

FY2008

FY2009

Admin

$90

$156

$102

$77

$63

Benefits

1,025

760

593

468

424

The Department's estimate of the benefits to be paid pursuant to EEOICPA and of the administrative costs of providing those benefits is based on program experience to date, data collected from other federal agencies, assumptions about the incidence of cancer, covered beryllium disease, chronic silicosis and other covered illnesses in the claimant population, life expectancy tables, dose reconstruction acceptance rates, Physician Panel acceptances under the former Part D of the Act, the anticipated distribution of benefit amounts, and its experience in estimating administrative and medical costs of workers' compensation programs.

For Part B benefits, estimates for cancer claims are based in part on figures provided by DOE concerning the number of DOE and DOE contractor employees (estimated by DOE to be approximately 654,000 since 1942), known cancer incidence rates in the general population obtained from the National Cancer Institute (the lifetime risk of being diagnosed with cancer is 45.67% for men and 38.09% for women for all body locations

1

), and the proportion of these claims likely to be accepted by OWCP. These benefit estimates include anticipated medical costs of $1,500 per year for 90% of the covered Part B employees, and $125,000 per year for the remaining 10% because they are undergoing intensive in-hospital medical treatment.

1

From Table I-14,

Lifetime Risk (Percent) of Being Diagnosed with Cancer by Site, Race and Sex,

in the SEER Cancer Statistics Review 1975-2000, published by the National Cancer Institute.

Part B benefit estimates for beryllium exposure are based on known incidence rates, known numbers of claimants with beryllium diseases, exposed population estimates (approximately 45,000 beryllium vendor employees, and several hundred thousand additional employees at DOE facilities), 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 severe chronic beryllium disease. Benefit estimates for chronic silicosis are based on figures obtained from DOE relating to the number of exposed employees (approximately 15,000 miners were employed digging tunnels in either Nevada or Alaska related to nuclear testing) and the expected incidence of chronic silicosis, and medical costs of $4,000 per year for mild chronic silicosis, and $9,000 per year for severe chronic silicosis. Benefit estimates for claims that require receipt of an award pursuant to section 5 of RECA are based on figures for the number of claims provided by DOJ, and $4,800 per year in medical costs.

Part E benefit estimates for covered Part E employees are based on the proportion of overlap between Part B and Part E claims (95% of Part E claimants also have filed a Part B claim), the historical dose reconstruction approval rate (since the inception of Part B, OWCP has accepted 23% of the 5,658 non-SEC cancer cases adjudicated to date), the historical Physician Panel approval rate under the former Part D (35%) and the number of Special Exposure Cohort claims approved by OWCP. The benefit amounts (which are not uniform as is the case in Part B awards) are calculated based on an estimated distribution of claims with varying degrees of compensable impairment and wage-loss. Additional Part E benefits for individuals who are considered to be eligible RECA section

5 uranium workers are computed based upon the number of such claims received to date and the expected number of such claims in the future.

Administrative cost estimates were developed based upon OWCP's experience to date in administering Part B and the other workers' compensation programs that fall within its area of administrative responsibility, using calculations of the number of incoming claims and forecasting the necessary full-time equivalents and other resources that are necessary to efficiently administer the program.

No more extensive economic impact analysis of this rule is necessary because this regulatory action only addresses the transfer of funds from the federal government to individuals who qualify under EEOICPA and to providers of medical services in that program. 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 rule 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. Such policy choices may affect who will be entitled to receive benefits (such as covered Part E employees with unratable impairments due to a covered illness), but will not have a significant impact on the number of eligible Part B or E beneficiaries or the level of benefits to which they are entitled.

OMB has reviewed the 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 Interim Final Rule on the date of its publication in the

Federal Register

. The report will state that DOL has concluded that this 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 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 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 that apply cost-control measures to payments for medical expenses are the only ones that could have a monetary effect on small businesses, and have been in effect since OWCP began administration of Part B of EEOICPA on July 31, 2001. The economic effect of these cost-control measures will not be significant for a substantial number of those businesses who will now participate in the program under Part E of EEOICPA, however, because no one business bills a significant amount to OWCP for EEOICPA-related services, and the monetary effect on bills that are submitted, while a worthwhile savings for the Government in the aggregate, will not be significant for any individual business affected.

The cost-control 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 methodologies used for the first two of these provisions were explained in the text of the preamble to the earlier regulatory actions that implemented EEOICPA in 2001 (66 FR 28948) and 2002 (67 FR 78874), which essentially adopted payment systems that are prevalent in the industry. Their adoption for use in connection with OWCP's administration of Part E of the Act will therefore result in continued efficiencies for the Government and providers. The Government will benefit because OWCP did not develop new cost containment measures for Part E claims, 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 they 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 for Part E claims will be identical to the bill process that applies to Part B claims, and will not be readily distinguishable from the Medicare billing process. Similarly, pharmacies are familiar with billing through clearing houses and having their charges subject to limits by private insurance carriers. By adopting private sector uniform billing requirements and a familiar cost control methodology, OWCP has not altered the billing environment with which pharmacies are already familiar. The methods chosen, therefore, represent systems 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 (SBA) standards, since most hospitals providing services for medical conditions covered by EEOICPA will have annual receipts that exceed the set maximum.

The implementation of these cost-control 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-control 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 an occupational illness or a covered illness and required medical treatment on or after October 30, 2000, 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 costs of the program are eventually charged.

The Assistant Secretary for Employment Standards has certified to the Chief Counsel for Advocacy of the SBA 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 rule has been drafted and reviewed in accordance with E.O. 12988 and will not unduly burden the federal court system. While Part B of EEOICPA does not provide any specific procedures that claimants under that Part must follow in order to seek review of decisions on their claims, Part E specifies that claimants under that Part have 60 days to file petitions for review of decisions on their claims in the United States district courts, and mandates the use of an “arbitrary and capricious” standard of review. It is reasonably likely that some EEOICPA claimants will seek review of adverse decisions in United States district courts pursuant to the APA (for claims under Part B of EEOICPA) or the EEOICPA itself (for claims under Part E). This rule should help minimize the burden placed on the courts by litigation seeking to challenge decisions under EEOICPA by providing claimants with an opportunity to seek administrative review of adverse decisions prior to resorting to the court system, and by providing a clear legal standard for affected conduct. The rule has been reviewed carefully to eliminate drafting errors and ambiguities.

XI. Executive Order 13132 (Federalism)

The Department has reviewed this rule in accordance with E.O. 13132 regarding federalism, and has determined that it does not have “federalism implications.” The 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.”

XII. 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, and has determined that it will have no effect on children.

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 rule on energy supply, distribution or use, and has determined that it is not likely to have a significant adverse effect on them.

XIV. Submission to Congress and the General Accountability Office

In accordance with the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act, the Department will submit to each House of the Congress and to the Comptroller General a report regarding the issuance of this interim final rule on the date of its publication in the

Federal Register

. The report will note that this rule constitutes a “major rule” as defined by 5 U.S.C. 804(2).

Under the Congressional Review Act, major rules generally cannot take effect until 60 days after the rule is published in the

Federal Register

. However, section 808(2) of the Congressional Review Act states that agencies may waive this 60-day requirement for “good cause” and establish an earlier effective date. As explained above, the Department believes that there is “good cause” for waiver of the APA requirement for notice and comment rulemaking because it would be both impractical and contrary to the public interest for the Department to fulfill that requirement. Similarly, the Department believes that the “good cause” exception to the 60-day effective date requirement for major rules in the Congressional Review Act applies to this rule, because observing this requirement would be both impractical and contrary to the public interest. As noted above, DOL will not be able to fully adjudicate claims under Part E of EEOICPA until the regulations in this rule are in effect. Since Congress has directed DOL to commence administration of Part E no later than May 26, 2005 in section 7385-10(f)(1) of EEOICPA, DOL believes that “good cause” exists for waiver of the usual 60-day effective date requirement for all “major” rules, and for this rule to become effective immediately upon the date of its publication in the

Federal Register

.

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

Administrative practice and procedure, Claims, Government employees, Labor, Workers' compensation.

20 CFR Part 30

Administrative practice and procedure, Cancer, Chemicals, 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 and 7385s-10; 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 EEOICPA benefits still entitled to those benefits?

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

Filing Claims for Benefits Under EEOICPA

30.100

In general, how does an employee file an initial claim for benefits?

30.101

In general, how is a survivor's claim filed?

30.102

In general, how does an employee file a claim for additional impairment or wage-loss under Part E of EEOICPA?

30.103

How does a claimant make sure that OWCP has the evidence necessary to process the claim?

Verification of Alleged Employment

30.105

What must DOE do after an employee or survivor files a claim?

30.106

Can OWCP request employment verification from other sources?

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 Radiogenic Cancer Claims

30.115

For those radiogenic cancer claims that do not seek benefits under Part B of the Act pursuant to the Special Exposure

Cohort provisions, what will OWCP do once it determines that an employee contracted cancer?

Subpart C—Eligibility Criteria

General Provisions

30.200

What is the scope of this subpart?

Eligibility Criteria for Claims Relating to Covered Beryllium Illness Under Part B of EEOICPA

30.205

What are the criteria for eligibility for benefits relating to beryllium illnesses covered under Part B of EEOICPA?

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 beryllium disease covered under Part B?

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under Parts B and E of EEOICPA

30.210

What are the criteria for eligibility for benefits relating to radiogenic 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, an atomic weapons employer facility or a RECA section 5 facility?

30.213

How does a claimant establish that the radiogenic cancer was at least as likely as not related to employment at the DOE facility, the atomic weapons employer facility, or the RECA section 5 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 sustained an injury, illness, impairment or disease as a consequence of a diagnosed cancer?

Eligibility Criteria for Claims Relating to Chronic Silicosis Under Part B of EEOICPA

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, impairment or disease?

Eligibility Criteria for Certain Uranium Employees Under Part B of EEOICPA

30.225

What are the criteria for eligibility for benefits under Part B of EEOICPA for certain uranium employees?

30.226

How does a claimant establish that a covered uranium employee has sustained a consequential injury, illness, impairment or disease?

Eligibility Criteria for Other Claims Under Part E of EEOICPA

30.230

What are the criteria necessary to establish that an employee contracted a covered illness under Part E of EEOICPA?

30.231

How does a claimant prove employment-related exposure to a toxic substance at a DOE facility or a RECA section 5 facility?

30.232

How does a claimant establish that the employee has been diagnosed with a covered illness, or sustained an injury, illness, impairment or disease as a consequence of a covered illness?

Subpart D—Adjudicatory Process

30.300

What process will OWCP use to decide claims for entitlement and to provide for administrative review of those decisions?

30.301

May subpoenas be issued for witnesses and documents in connection with a claim under Part B of EEOICPA?

30.302

Who pays the costs associated with subpoenas?

30.303

What information may OWCP request in connection with a claim under Part E of EEOICPA?

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 return a claim to the district office?

30.318

Can the FAB consider objections to HHS's reconstruction of a radiation dose or to the guidelines OWCP uses to determine if a claimed cancer was at least as likely as not related to employment?

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 treatment?

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 should medical bills and reimbursement requests be submitted?

30.421

What are the time frames for submitting bills and reimbursement requests?

30.422

If an employee is only partially reimbursed 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 EEOICPA?

30.501

What order of precedence will OWCP use to determine which survivors are entitled to receive compensation under EEOICPA?

30.502

When is entitlement for survivors determined for purposes of 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 Part B employees who only establish beryllium sensitivity under Part B of EEOICPA?

30.508

What is beryllium sensitivity monitoring?

30.509

Under what circumstances may a survivor claiming under Part E of the Act choose to receive the benefits that would otherwise be payable to a covered Part E employee who is deceased?

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 EEOICPA?

30.512

What does OWCP do when an overpayment is identified?

30.513

Under what circumstances may OWCP waive recovery of an overpayment?

30.514

If OWCP finds that the recipient of an overpayment was not at fault, what criteria are used to decide whether to waive recovery of it?

30.515

Is a recipient responsible for an overpayment that resulted from an error made by OWCP?

30.516

Under what circumstances would recovery of an overpayment defeat the purpose of the Act?

30.517

Under what circumstances would recovery of an overpayment be against equity and good conscience?

30.518

Can OWCP require the recipient of the overpayment to submit additional financial information?

30.519

How does OWCP communicate its final decision concerning recovery of an overpayment?

30.520

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 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 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 EEOICPA a recovery that must be reported to OWCP?

30.610

Are payments to a covered Part B employee, a covered Part E employee or an 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 Part B of 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 was 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 Part B of EEOICPA?

Coordination of Part E Benefits With State Workers' Compensation Benefits

30.625

What does “coordination of benefits” mean under Part E of EEOICPA?

30.626

How will OWCP coordinate compensation payable under Part E of EEOICPA with benefits from state workers' compensation programs?

30.627

Under what circumstances will OWCP waive the statutory requirement to coordinate these benefits?

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 subpoenas or 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?

Subpart I—Wage-Loss Determinations Under Part E of EEOICPA

General Provisions

30.800

What types of wage-loss are compensable under Part E of EEOICPA?

30.801

What special definitions does OWCP use in connection with Part E wage-loss determinations?

Evidence of Wage-Loss

30.805

What evidence does OWCP use to determine a covered Part E employee's average annual wage and whether he or she experienced compensable wage-loss under Part E of EEOICPA?

30.806

May a claimant submit factual evidence in support of a different determination of average annual wage and/or wage-loss than that found by OWCP?

Determinations of Average Annual Wage and Percentages of Loss

30.810

How will OWCP calculate the average annual wage of a covered Part E employee?

30.811

How will OWCP calculate the duration and extent of a covered Part E employee's initial period of compensable wage-loss?

30.812

May a covered Part E employee claim for subsequent periods of compensable wage-loss?

Special Rules for Certain Survivor Claims Under Part E of EEOICPA

30.815

Are there special rules that OWCP will use to determine the extent of a deceased covered Part E employee's compensable wage-loss?

Subpart J—Impairment Benefits Under Part E of EEOICPA

General Provisions

30.900

Who can receive impairment benefits under Part E of EEOICPA?

30.901

How does OWCP determine the extent of an employee's impairment that is due to a covered illness contracted through exposure to a toxic substance at a DOE facility or a RECA section 5 facility, as appropriate?

30.902

How will OWCP calculate the amount of the award of impairment benefits that is payable under Part E?

Medical Evidence of Impairment

30.905

How may an impairment evaluation be obtained?

30.906

Who will pay for an impairment evaluation?

30.907

Can an impairment evaluation obtained by OWCP be challenged prior to issuance of the recommended decision?

30.908

How will the FAB evaluate new medical evidence submitted to challenge the impairment determination in the recommended decision?

Ratable Medical Impairments

30.910

Will an impairment that cannot be assigned a numerical percentage using the AMA's

Guides

be included in the impairment rating?

30.911

Does maximum medical improvement always have to be reached for an impairment to be included in the impairment rating?

30.912

Can a covered Part E employee receive benefits for additional impairment following an award of such benefits by OWCP?

Authority:

5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 7384d, 7384t, 7384u and 7385s-10; 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?

Part B of 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 Part B 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. Part B also provides for the payment of supplemental compensation benefits to other covered Part B employees who have already been 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 persons. Part E of the Act provides for the payment of compensation benefits to covered Part E employees and, where applicable, survivors of such employees. The regulations in this part describe the rules governing filing, processing, and paying claims for benefits under both Part B and Part E of EEOICPA.

(a) Part B of EEOICPA provides for the payment of either lump-sum monetary compensation for the disability of a covered Part B employee due to an occupational illness or for monitoring for beryllium sensitivity, as well as for medical and related benefits for such illness. Part B also provides for the payment of monetary compensation for the disability of a covered Part B employee to specified survivors if the employee is deceased at the time of payment.

(b) Part E of EEOICPA provides for the payment of monetary compensation for the established wage-loss and/or impairment of a covered Part E employee due to a covered illness, and for medical and related benefits for such covered illness. Part E also provides for the payment of monetary compensation for the death (and established wage-loss, where applicable) of a covered Part E employee to specified survivors if the covered Part E employee is deceased at the time of payment.

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

§ 30.1

What rules govern the administration of the EEOICPA and this chapter?

In accordance with 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 the tasks associated with 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 all claimants file their claims with OWCP, and OWCP is responsible for granting or denying compensation under the Act (

see

§§ 30.100 through 30.102). 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 occupational illnesses under Part B of the Act and covered illnesses under Part E of the Act. In addition, OWCP provides an administrative review process for claimants who disagree with its recommended and final adverse decisions on claims of entitlement (

see

§§ 30.300 through 30.320).

(b) However, HHS has exclusive control of the portion of the claims process under which it provides reconstructed doses for certain radiogenic cancer claims (

see

§ 30.115). HHS also has exclusive control of the process for designating classes of employees to be added to the Special Exposure Cohort under Part B of the Act, and has promulgated regulations governing that process at 42 CFR part 83. Finally, HHS has promulgated regulations at 42 CFR part 81 that set out guidelines that OWCP follows when it assesses the compensability of an employee's radiogenic cancer (

see

§ 30.213). DOE and DOJ must, among other things, notify potential claimants and submit evidence that OWCP deems necessary for its adjudication of claims under EEOICPA (

see

§§ 30.105, 30.112, 30.206, 30.212 and 30.221).

§ 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 EEOICPA, as well as personnel in the various federal agencies and DOL who process claims filed under EEOICPA or who perform administrative functions with respect to EEOICPA. The various subparts of this part contain the following:

(a) Subpart A: The general statutory and administrative framework for processing claims under both Parts B and E of 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 involving EEOICPA claims, including convictions for fraud.

(b) Subpart B: The rules for filing claims for entitlement under 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 occupational illnesses and covered illnesses compensable under Parts B and E of EEOICPA.

(d) Subpart D: The rules governing the adjudication process leading to recommended and final decisions on claims for entitlement filed under Parts B and E of 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 as part of its adjudication of entitlement, and medical reports and records in general. It also addresses the kinds of medical treatment that may be authorized and how medical bills are paid.

(f) Subpart F: The rules relating to the payment of monetary compensation available under Parts B and E of EEOICPA. It includes provisions on medical monitoring for beryllium sensitivity, on the identification, processing and recovery of overpayments of compensation, and on the maximum aggregate amount of compensation payable under Part E.

(g) Subpart G: The rules concerning the representation of claimants in connection with the administrative adjudication of claims before OWCP, subrogation of the United States, the effect of tort suits against beryllium vendors and atomic weapons employers, and the coordination of benefits under Part E of EEOICPA with state workers' compensation benefits for the same covered illness.

(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.

(i) Subpart I: The rules relating to the adjudication of alleged periods of wage-loss of covered Part E employees. It also includes provisions on the use by OWCP of Social Security Administration earnings information and certain medical evidence to establish compensable wage-loss.

(j) Subpart J: The rules relating to the adjudication of alleged impairment due to the exposure of covered Part E employees to toxic substances. It includes provisions relating to the medical evaluation of ratable impairments, the rating of progressive conditions, apportionment, and qualifications of physicians.

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:

(1) 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; or

(2)(i) An individual employed at a facility that the National Institute for Occupational Safety and Health reported had a potential for significant residual contamination outside of the period described in paragraph (c)(1) of this section;

(ii) By the atomic weapons employer that owned the facility referred to in paragraph (c)(2)(i) of this section, or a subsequent owner or operator of such facility; and

(iii) During a period reported by the National Institute for Occupational Safety and Health (NIOSH), in its report dated October 2003 and titled “Report on Residual Radioactive and Beryllium Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor Facilities,” or any update to that report, to have a potential for significant residual radioactive contamination.

(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 either a covered Part B employee under Part B, or a covered Part E employee under Part E, from the Energy Employees Occupational Illness Compensation Fund. However, the term “compensation” used in section 7385f(b) of EEOICPA (restricting entitlement to only one payment of compensation under Part B) means only the payments specified in section 7384s(a)(1) and in section 7384u(a). 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 to OWCP of an individual's entitlement to benefits under 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 Part E employee

means, under Part E of the Act, a Department of Energy contractor employee or a RECA section 5 uranium worker who has been determined by OWCP to have contracted a covered illness (

see

paragraph (r) of this section) through exposure at a Department of Energy facility or a RECA section 5 facility, as appropriate.

(q)

Covered Part B employee

means, under Part B of the Act, a covered beryllium employee (

see

§ 30.205), a covered employee with cancer (

see

§ 30.210(a)), a covered employee with chronic silicosis (

see

§ 30.220), or a covered uranium employee (

see

paragraph (s) of this section).

(r)

Covered illness

means, under Part E of the Act relating to exposures at a DOE facility or a RECA section 5 facility, an illness or death resulting from exposure to a toxic substance.

(s)

Covered uranium employee

means, under Part B of the Act, an individual who has been determined by DOJ to be entitled to an award under section 5 of the RECA, whether or not the individual was the employee or the deceased employee's survivor.

(t)

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.

(u)

Department

means the United States Department of Labor (DOL).

(v)

Department of Energy

or

DOE

includes the predecessor agencies of the DOE, including the Manhattan Engineering District.

(w)

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.

(x)(1)

Department of Energy facility

means, as determined by the Director of OWCP, any building, structure, or premise, including the grounds upon which such building, structure, or premise is located:

(i) 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

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

(A) A proprietary interest; or

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

(2) DOL hereby adopts the list of facilities established by the Department of Energy that is in effect on the date of the publication of this Interim Final Rule. DOL will periodically update this list as it deems appropriate in its sole discretion by publishing a revised list of covered facilities in the

Federal Register

.

(y)

Disability

means, for purposes of determining entitlement to payment of Part B benefits 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.

(z)

Eligible surviving beneficiary

means any individual who is entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and (d) of the Act to receive a payment on behalf of a deceased covered Part B employee or a deceased covered Part E employee.

(aa)

Employee

means either a current or former employee.

(bb)

Occupational illness

means, under Part B of the Act, a covered beryllium illness, cancer sustained in the performance of duty as defined in § 30.210(a), specified cancer, chronic silicosis, or an illness for which DOJ has awarded compensation under section 5 of RECA.

(cc)

OWCP

means the Office of Workers' Compensation Programs, United States Department of Labor. One of the four divisions of OWCP is the Division of Energy Employees Occupational Illness Compensation.

(dd)

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.

(ee)

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.

(ff)

Specified cancer

(as defined in section 4(b)(2) of RECA and in the EEOICPA) 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.

(gg)

Survivor

means:

(1) For claims under Part B of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse, child, parent, grandchild and grandparent of a deceased covered Part B employee.

(2) For claims under Part E of the Act, and subject to paragraph (gg)(3) of this section, a surviving spouse and child of a deceased covered Part E employee.

(3) Those individuals listed in paragraphs (gg)(1) and (gg)(2) 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.

(hh)

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 Part B 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 under Part B, the last date on which a covered Part B 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; or

(3) In regard to a claim arising out of exposure to a toxic substance, the last date on which a covered Part E employee was employed at the Department of Energy facility or RECA section 5 facility, as appropriate, at which the exposure took place.

(ii)

Toxic substance

means any material that has the potential to cause illness or death because of its radioactive, chemical, or biological nature.

(jj)

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 obtain copies of or amend EEOICPA claim records?

(a) A claimant seeking copies of his or her official EEOICPA file should address a request to the District Director of the OWCP district office having custody of the file.

(b) Any request to amend a record covered by DOL/ESA-49 should be directed to the district office having custody of the official file.

(c) Any administrative appeal taken from a denial issued by OWCP under this section shall be filed with the Solicitor of Labor in accordance with 29 CFR 71.7 and 71.9.

Rights and Penalties

§ 30.15

May EEOICPA benefits be assigned, transferred or garnished?

(a) Pursuant to section 7385f(a) of the Act, no claim for EEOICPA benefits may be assigned or transferred.

(b) Provisions of the Social Security Act (42 U.S.C. 659) and regulations issued by the Office of Personnel Management at 5 CFR part 581 permit the garnishment of payments of EEOICPA monetary benefits to collect overdue alimony and child support. A request to garnish a payment for either of these purposes should be submitted to the district office that is handling the EEOICPA claim, and must be accompanied by a copy of the pertinent state agency or court order.

§ 30.16

What penalties may be imposed in connection with a claim under the Act?

(a) Other statutory provisions make it a crime to file a false or fraudulent claim or statement with the federal government in connection with a claim under the Act. Included among these provisions is 18 U.S.C. 1001. Enforcement of criminal provisions that may apply to claims under the Act is within the jurisdiction of the Department of Justice.

(b) In addition, administrative proceedings may be initiated under the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801

et seq.

, to impose civil penalties and assessments against persons or entities who make, submit or present, or cause to be made, submitted or presented, false, fictitious or fraudulent claims or written statements to OWCP in connection with a claim under EEOICPA. The Department's regulations implementing PFCRA are found at 29 CFR part 22.

§ 30.17

Is a beneficiary who defrauds the government in connection with a claim for EEOICPA benefits still entitled to those benefits?

When a beneficiary either pleads guilty to or is found guilty on either Federal or State criminal charges of defrauding the federal or a state government in connection with a claim for benefits under the Act or any other federal or state workers' compensation law, the beneficiary forfeits (effective the date either the guilty plea is accepted or a verdict of guilty is returned after trial) any entitlement to any further benefits for any injury, illness or death covered by this part for which the time of injury was on or before the date of such guilty plea or verdict. Any subsequent change in or recurrence of the beneficiary's medical condition does not affect termination of entitlement under this section.

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

Filing Claims for Benefits Under EEOICPA

§ 30.100

In general, how does an employee file an initial claim for benefits?

(a) To claim benefits under EEOICPA, an employee must file a claim in writing. Form EE-1 should be used for

this purpose, but any written communication that requests benefits under EEOICPA will be considered a claim. It will, however, be necessary for an employee to submit a Form EE-1 for OWCP to fully develop the claim. Copies of Form EE-1 may be obtained from OWCP or on the Internet at

www.dol.gov/esa/regs/ compliance/owcp/eeoicp/main.htm.

The employee's claim must be filed with OWCP, but another person may do so on the employee's behalf.

(b) The employee may choose, at his or her own option, to file for benefits for only certain conditions that are potentially compensable under the Act (

e.g.

, the employee may not want to claim for an occupational illness or a covered illness for which a payment has been received that would necessitate an offset of EEOICPA benefits under the provisions of § 30.505(b)). The employee may withdraw his or her claim by so requesting in writing to OWCP at any time before OWCP determines his or her eligibility for benefits.

(c) Except as provided in paragraph (d) of this section, a claim is considered to be “filed” on the date that the employee mails his or her claim to OWCP, as determined by postmark, or on the date that the claim is received by OWCP, whichever is the earliest determinable date. However, in no event will a claim under Part B of EEOICPA be considered to be “filed” earlier than July 31, 2001, nor will a claim under Part E of EEOICPA be considered to be “filed” earlier than October 30, 2000.

(1) The employee, or the person filing the claim on behalf of the employee, shall affirm that the infor

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