116 S2205 IS: Black Lung Benefits Improvement Act of 2019 U.S. Senate 2019-07-23 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.

II116th CONGRESS1st SessionS. 2205IN THE SENATE OF THE UNITED STATESJuly 23, 2019Mr. Casey (for himself, Mr. Brown, Mr. Kaine, Mr. Warner, and Mr. Manchin) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and PensionsA BILLTo ensure that claims for benefits under the Black Lung Benefits Act are processed in a fair and timely manner, to better protect miners from pneumoconiosis (commonly known as black lung disease), and for other purposes.

1.

Short title

This Act may be cited as the Black Lung Benefits Improvement Act of 2019.

2.

Table of contents

The table of contents for this Act is as follows:Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings. TITLE I—Black lung benefits PART A—Improving the process for filing and adjudicating claims for benefits Sec. 101. Mandatory disclosure of medical information and reports. Sec. 102. Attorneys’ fees and medical expenses payment program. Sec. 103. Clarifying eligibility for black lung benefits. Sec. 104. Restoring adequate benefit adjustments for miners suffering from black lung disease and for their dependent family members. Sec. 105. Treatment of evidence in equipoise. Sec. 106. Providing assistance with claims for miners and their dependent family members. Sec. 107. False statements or misrepresentations, attorney disqualification, and discovery sanctions. Sec. 108. Development of medical evidence by the Secretary. Sec. 109. Medical evidence training program. Sec. 110. Technical and conforming amendments. Sec. 111. Readjudicating cases involving certain chest radiographs. Sec. 112. Disclosure of employment and earnings information for Black Lung Benefits Act claims. PART B—Reports To improve the administration of benefits under the Black Lung Benefits Act Sec. 121. Strategy to reduce delays in adjudication. Sec. 122. GAO report on black lung program. TITLE II—Standard for respirable dust concentration Sec. 201. Standard for respirable dust concentration. TITLE III—Establishing the Office of Workers' Compensation Programs Sec. 301. Office of Workers' Compensation Programs. TITLE IV—Severability Sec. 401. Severability.

3.

Findings

Congress finds the following: (1)The Black Lung Benefits Act (30 U.S.C. 901 et seq.) was enacted to provide health care and modest benefits to coal miners who develop pneumoconiosis (referred to in this section as black lung disease) resulting from exposure to coal dust during their employment. Yet the determination of a claimant's eligibility for these benefits often requires complex, adversarial litigation. Resource disparities between coal companies and such claimants are widespread within the statutory and regulatory framework of such Act. Comprehensive reforms are necessary to ensure that coal miners are not at a disadvantage when filing claims for benefits. (2)The Government Accountability Office has found that many claimants under the Black Lung Benefits Act are not equipped with the medical and legal resources necessary to develop evidence to meet the requirements for benefits. Miners often lack complete and reliable medical evidence, consequently increasing the risk that the individuals who review claims for benefits will be presented with insufficient medical evidence. Similarly, without better options for legal representation, significant numbers of such claimants proceed with their claims through a complex and potentially long administrative process without resources that Department of Labor officials and black lung disease experts note are important for developing evidence and supporting their claims. Only 42 percent of claimants are represented by an attorney during the initial claims determination. Absent efforts to remedy administrative problems and address structural weaknesses in the process for obtaining benefits, claimants with meritorious claims will not receive benefits. (3)Full exchange and disclosure between the parties of relevant medical information is essential for fair adjudication of claims under the Black Lung Benefits Act, regardless of whether the parties intend to submit such information into evidence. Records of adjudications reveal that some mine operators’ legal representatives have withheld relevant evidence from claimants, administrative law judges, and, in some cases, even their own medical experts. In several cases, the disclosure of such evidence would have substantiated a miner’s claim for benefits. Withholding medical information can endanger miners by depriving them of important information about their own health and the potential need to seek medical treatment. (4)Given the remedial nature of the Black Lung Benefits Act, when an adjudicator determines that evidence is evenly balanced, it is appropriate for any resulting doubt to be resolved in favor of the claimant. The Supreme Court vacated this longstanding legal principle, not on substantive grounds, but because its application conflicted with the requirements of another statute. Such principle needs to be reinstated in the Black Lung Benefits Act because it provides fairness and improves the administration of benefits. (5)Physicians who read lung x-rays as part of pulmonary assessments used in proceedings for claims under the Black Lung Benefits Act are required to demonstrate competency in classifying chest radiographs by becoming certified as B Readers by the National Institute for Occupational Safety and Health (referred to in this section as NIOSH). However, past investigations have uncovered that there have been NIOSH-certified B Readers who systematically misclassified chest radiographs while employed by coal operators or their law firms for the purpose of opposing claims under such Act. Where chest radiographs are needed to establish entitlement to benefits, claimants should have access to accurate interpretations so as to ensure the fair adjudication of such claims. (6)Past instances of systematic misclassification of chest radiographs that resulted in survivors being denied benefit claims under the Black Lung Benefits Act were not discovered until years after the misclassifications had begun. In such instances, survivors should be permitted to file a new claim for benefits under such Act. However, a survivor is effectively barred from filing a new claim one year after a decision regarding such benefits is final, constituting an injustice that merits a remedy. (7)Insufficient numbers of administrative law judges in the Department of Labor coupled with high numbers of cases filed under the Black Lung Benefits Act and disruptions in Federal Government functions caused by shutdowns have contributed to extensive delays in adjudicating claims under such Act and numerous other labor and employment laws. A 2017 report by the Department of Labor Office of the Inspector General found that the Office of Workers’ Compensation Programs took an average of almost a year to process a claim for benefits under the Black Lung Benefits Act and that claims appealed to the Office of Administrative Law Judges took, on average, an additional 640 days to receive a decision. These delays directly and severely impact the lives of workers throughout the United States, placing an undue financial and emotional burden on the affected individuals and their families. (8)Contrary to the intent of Congress, benefits payments under the Black Lung Benefits Act do not automatically increase with the rising cost of living. Benefit payments are tied to the monthly pay rate for Federal employees in grade GS–2, step 1. In multiple fiscal years between 2010 and the enactment of this Act, there was a pay freeze for Federal employees, which had the effect of eliminating cost-of-living adjustments for miners, surviving spouses, and dependents under the Black Lung Benefits Act during such years. (9)A competent assessment of medical information and testimony, which often involves multiple physicians disputing a diagnosis, is necessary in determining whether to award benefits under the Black Lung Benefits Act. To ensure that a determination regarding a claim for benefits under such Act is fair and accurate, regular training is needed regarding— (A)developments in pulmonary medicine relating to black lung disease; (B)medical evidence necessary to sustain claims for such benefits; and (C)the proper weight to be given to conflicting evidence. (10)Black lung disease has been the underlying or contributing cause of death of more than 78,000 miners since 1968. After decades of decline, the incidence of coal miners with black lung disease is on the rise. According to NIOSH, miners are developing advanced cases of the disease at younger ages. In response, the Department of Labor took important steps to combat the disease, including promulgating a rule in 2014 that reduced the allowed concentration of coal dust and addressed weaknesses in the dust sampling system. Retrospective studies should be continued to determine whether revisions to the standards are necessary to eliminate the disease. (11)To eliminate an avoidable delay in evaluating claims under such Act, the Inspector General of the Department of Labor has recommended legislation that would authorize the Department of Labor to have electronic access to miners’ earning records held by the Social Security Administration.