[Senate Hearing 108-547]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-547

       ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

   TO RECEIVE TESTIMONY ON THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS 
                        COMPENSATION PROGRAM ACT

                               __________

                             MARCH 30, 2004


                       Printed for the use of the
               Committee on Energy and Natural Resources


                                 ______

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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
DON NICKLES, Oklahoma                JEFF BINGAMAN, New Mexico
LARRY E. CRAIG, Idaho                DANIEL K. AKAKA, Hawaii
BEN NIGHTHORSE CAMPBELL, Colorado    BYRON L. DORGAN, North Dakota
CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
LAMAR ALEXANDER, Tennessee           RON WYDEN, Oregon
LISA MURKOWSKI, Alaska               TIM JOHNSON, South Dakota
JAMES M. TALENT, Missouri            MARY L. LANDRIEU, Louisiana
CONRAD BURNS, Montana                EVAN BAYH, Indiana
GORDON SMITH, Oregon                 DIANNE FEINSTEIN, California
JIM BUNNING, Kentucky                CHARLES E. SCHUMER, New York
JON KYL, Arizona                     MARIA CANTWELL, Washington

                       Alex Flint, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                 Pete Lyons, Professional Staff Member
                          Jon Epstein, Fellow


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Alexander, Hon. Lamar, U.S. Senator from Tennessee...............     7
Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     4
Bunning, Hon. Jim, U.S. Senator from Kentucky....................     1
Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado........     2
Cantwell, Hon. Maria, U.S. Senator from Washington...............    16
Card, Robert G., Under Secretary of Energy.......................    22
Grassley, Hon. Charles, U.S. Senator from Iowa...................     8
Hallmark, Shelby, Director, Office of Workers' Compensation 
  Programs, Department of Labor..................................    49
Howard, Dr. John, Director, National Institute for Occupational 
  Safety and Health..............................................    42
Murkowski, Hon. Lisa, U.S. Senator from Alaska...................     5
Robertson, Robert E., Director, Education, Workforce, and Income 
  Security Issues, General Accounting Office.....................    56
Schumer, Hon. Charles E., U.S. Senator from New York.............     3
Talent, Hon. James M., U.S. Senator from Missouri................     3

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    79

                              Appendix II

Additional material submitted for the record.....................    89

 
       ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM

                              ----------                              


                        TUESDAY, MARCH 30, 2004

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:58 a.m. in room 
SD-366, Dirksen Senate Office Building, Hon. Jim Bunning 
presiding.

      OPENING STATEMENT OF HON. JIM BUNNING, U.S. SENATOR 
                         FROM KENTUCKY

    Senator Bunning. This hearing of the Energy and Natural 
Resources Committee on implementation of the Energy Employees 
Occupational Illness Compensation Program shall come to order. 
This is the second hearing on this act we've conducted within 
the last 5 months, which indicates the degree of concern this 
committee has with the effectiveness of current Department of 
Energy actions to compensate workers in our nuclear weapons 
program who suffered serious illnesses as a result of their 
employment.
    In the first hearing, the committee focused on subtitle D 
of the act, administered by the Department of Energy. We 
learned of at least three major issues with subtitle D, slow 
processing of claims by the Department of Energy to prepare 
them for review by physician panels; two, slow processing of 
claims by the physician panels; and three, an uncertain process 
through which workers might be compensated through their state 
workers' compensation programs.
    This last issue includes concern over the availability of 
an entity who can now serve as a willing payer for a claim 
resulting from illnesses suffered many years ago. While the 
Department of Energy has maintained a claim process rate 
exceeding 100 cases per week since the last hearing, the agency 
still is miserably behind its clearing its claims backlog. The 
DOE has completed processing only 8 percent of its cases and 
only one person out of more than 23,000 cases, one out of 
23,000, has been filed--that has been filed has received 
compensation.
    Even with the Department's current proposal to accelerate 
physician panels processing, DOE's plan will mean that 
claimants will have to wait at least 6 years after the act was 
enacted to have their cases completed, and its current proposal 
does not even address the willing payer issue. In contrast, the 
Department of Labor has completed, processed 57 percent of its 
cases under subtitle B of the act and has paid nearly $800 
million in claims.
    The Paducah gaseous diffusion plant in Paducah, Kentucky is 
third in the Nation for the most cases filed for compensation 
from the DOE. Most of these workers sacrificed their health and 
safety and were placed unknowingly in harm's way to make 
nuclear weapons for our country. Over 2,600 Kentucky residents 
exposed to toxic substances still are waiting to have their DOE 
cases completed under subtitle D.
    The Department of Energy has not even touched over a third 
of the cases, which means they are still waiting for someone to 
review them, and zero people in Kentucky have received any 
payments for the lost wages and medical benefits they incurred 
during the illnesses caused by work at the DOE plants. This is 
not what Congress envisioned when it passed the act in 2000.
    I hope our hearing today will bring to light a way for us 
to end the backlog of thousands of cases that have not received 
compensation. In our hearing today, each witness was asked to 
provide specific suggestions for alleviating the roadblocks 
within their responsibilities for administration of this act. 
From this hearing, it is my hope that we can work in a 
bipartisan manner to develop improved legislation that will 
reasonably compensate injured workers on a more timely basis.
    Testifying today are Senator Charles Grassley, who together 
with Senator Murkowski has introduced legislation in the 108th 
Congress to address their concerns with the act's 
implementation; the Honorable Robert Card, Under Secretary of 
the Department of Energy; Mr. Robert Robertson, Director for 
Education, Workforce, and Income Security issues with the GAO; 
Mr. Shelby Hallmark, Director of the Office of Workers' 
Compensation Programs in the Department of Labor; and Dr. John 
Howard, Director of the National Institute for Occupational 
Safety and Health. We look forward to your testimony today.
    Senator Bingaman, do you have a statement?
    [The prepared statements of Senators Campbell, Schumer and 
Talent follow:]

        Prepared Statement of Senator Ben Nighthorse Campbell, 
                       U.S. Senator From Colorado

    Thank you, Mr. Chairman. I would like to thank you for holding this 
hearing and all of the witnesses here to testify today.
    The Rocky Flats site, just sixteen miles from Denver, was one of 
our nation's most important contributors to maintaining the energy 
security of our country. The workers at Rocky Flats developed and built 
the nuclear weapons that helped give the U.S. the necessary edge to win 
the Cold War. Thankfully, that War is over, but the unfortunate legacy 
of nuclear weapons is still affecting the proud patriots who provided 
those tools to victory.
    Many of those workers in my State and others across the U.S. have 
developed serious illnesses after years of exposure to nuclear weapons. 
In order to address their health needs, the government established the 
Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA) in 2000 to provide compensation to employees of the 
Department of Energy and its contractor who where exposed to radiation 
or other toxic substances and who subsequently developed illnesses. 
Since implementation of this act, only a small fraction of the claims 
have gone through the process out of thousands of applicants.
    Granted, this program is incredibly complex, with numerous parties 
involved. Sorting this out is certainly a difficult job, but the people 
who are sick don't have the luxury of waiting for us to do so. I look 
forward to hearing from our witnesses as to how we can remedy this 
problem and get help for those who need it most.

                                 ______
                                 
       Prepared Statement of Hon. Charles Schumer, U.S. Senator 
                             From New York

    Good Afternoon Mr. Chairman, members of the Energy Committee. I 
would like to take this opportunity to bring to your attention several 
issues surrounding the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA) that are of vital importance to New 
York's nuclear workers.
    Last week, NIOSH publicly announced that they were revising their 
November 2003 report on residual contamination pertaining to Bethlehem 
Steel to indicate that there was little potential for significant 
residual contamination at the site after weapons-related operations 
ended in 1952.
    I would like to say that I am extremely dismayed at this admission 
and find it incomprehensible how a mistake of this magnitude could have 
occurred.
    Thousands of affected workers in New York have been waiting for 
years for their claims to be processed and many of these workers are 
paying the price with their lives.
    Now NIOSH is indicating that they have made a major error in a 
report that was already a year late to Congress.
    Currently, NIOSH has only provided my office with 10 surface sample 
surveys conducted in 1952 as proof that Bethlehem Steel, a facility of 
enormous size and proportion, does not have potential for significant 
residual radiation.
    Congress needs to be provided with a clearer and more comprehensive 
explanation of what happened.
    I would also like to urge your agencies to improve the 
effectiveness of outreach and claimant assistance to applicants of the 
Energy Employees Occupational Illness Compensation Program in the 
Western New York region by establishing a permanent resource center in 
this area.
    Workers at these facilities handled high levels of radioactive 
materials and were responsible for helping to create the huge nuclear 
arsenal that served as a deterrent to the Soviet Union during the Cold 
War.
    Yet despite having one of the greatest concentrations of facilities 
involved in nuclear weapons production-related activities in the 
nation, Western New York continues to be severely underserved by this 
program.
    The establishment of a permanent resource center in Western New 
York would represent a substantial step toward improving services for 
workers in this region.
    Western New York is home to 14 former Atomic Weapon Employers (AWE) 
sites and DOE clean up facilities. Yet, the only assistance applicants 
receive is from a traveling resource center that comes to the area too 
infrequently to effectively serve current and former nuclear workers.
    EEOICPA Section 3631 requires DOL to provide outreach and claimant 
assistance. A permanent facility is needed in Western New York, not 
only to increase awareness of the program among area residents, but to 
help serve workers throughout the claimant process.
    I thank you for your attention to these important matters and hope 
that we can work together to ensure that the thousands of nuclear 
workers from New York and across the country who labored tirelessly for 
years in hazardous conditions receive the recognition and compensation 
they deserve.

                                 ______
                                 
       Prepared Statement of Hon. James M. Talent, U.S. Senator 
                             From Missouri

    Mr. Chairman, thank you for holding this hearing today. I think 
some real progress was made during the November hearing and this is a 
good time to revisit EEOICPA. This is an issue of great importance to 
me--it affects so many Missourians. In Missouri, an estimated 3,500 
people worked at these sites. So far, 520 claims have been filed. I am 
hopeful that you are making progress on these claimants.
    These claimants are former workers at Mallinckrodt Chemical Co. in 
St. Louis, they received doses of radiation up to 2,400 times those 
considered acceptable today. These workers were exposed, in most 
instances unknowingly, to dangerous levels of radiation. Many of those 
who eventually developed cancer have already died, before they could be 
compensated for their illness.
    When this legislation passed, it was a great victory for these 
workers; however, government bureaucracy and red tape are preventing 
these individuals from obtaining the compensation that, without 
question, they deserve. I think the suggested legislation that the 
Department of Energy has proposed is a good start and hopefully more 
physicians will be enticed to come and process these claims without the 
$60/hour pay cap. I still however think we should do more.
    I cosponsored a bill with Sen. Bond to expedite the claimants' 
process at the Mallinckrodt facility in St. Louis. This legislation 
designates the Mallinckrodt facility as a Special Exposure Cohort (SEC) 
site. This will allow some of the more than 500 workers to bypass the 
long and cumbersome bureaucratic dose reconstruction process and 
qualify for expedited payments.
    This legislation isn't technically necessary--but in reality it is. 
Congress gave the Secretary of HHS the authority to designate other 
classes of employees to be members of the SEC. For two years you have 
been promulgating regulations for this designation. This delay is 
unacceptable to me and Sen. Bond and the effected employees in 
Missouri.
    Mr. Howard, in your testimony, you state: ``Once the Cohort 
regulation is promulgated, HHS will solicit and begin considering 
petitions by classes of employees. The process of considering petitions 
will involve the review of such petitions by NIOSH and by the Board, 
which will advise HHS on each petition.''
    Knowing the little progress that has been made in simply 
promulgating the regulation, I am concerned that this petition process 
could prove to be as long and cumbersome as the standard process.
    I know that this has proven to be a real trial for the 
administration--one program under the jurisdiction of so many 
departments and agencies. I understand why it could take so long to 
work out the ``kinks.'' But it is time to re-evaluate this system and 
get this compensation out to the former employees.
    I am hopeful that today, we will see some real progress and some 
movement toward reform that is clearly so desperately needed. This 
program is too important to people in Missouri to allow it to continue 
as it is.
    Thank you again Mr. Chairman.

         STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR 
                        FROM NEW MEXICO

    Senator Bingaman. Yes, I do, Mr. Chairman. Thank you for 
having the hearing. This is the second hearing we've had to 
review this Energy Employees Occupation Illness Act. I share 
your frustration about the slowness with which people are 
actually having their claims processed. I do think we need to 
find a way to reinsert some urgency into this process. It seems 
to have been lost and the legislative fixes, as I understand 
DOE's testimony here, and we'll have a chance to hear from Mr. 
Card, but the legislative fixes proposed by the Department of 
Energy, which are to eliminate pay caps on physicians and 
enable their full-time employment, do not seem to me to go far 
enough.
    The process as it's now described in the Federal Register 
runs a couple of hundred pages. I don't really know if it's 
realistic to have a sick person try to wade through 20 pages of 
Federal regulations entitled, ``Guidelines for Determining the 
Probability of Causation and Methods for Radiation Dose 
Reconstruction.'' I think that was not the intent of Congress 
when we first talked about this.
    This is particularly difficult when, in the first place, 
the worker in question was not issued a radiation badge to 
record the dose level, because they were transporting isotopes 
outside of Los Alamos, and the laboratory, of course, had a 
prohibition against wearing badges outside the lab. I have a 
constituent, Jill Scherer, who has breast cancer. She had a 
mastectomy in 2001 on Valentine's Day. I have another 
constituent who is our State Representative, Ray Reese, from 
Albuquerque, who has mesothelioma from the time he worked in 
Los Alamos helping mix lead using asbestos heat shields. 
Because he does not have one of the 22 cancers related to 
radiation, he does not qualify for one of the special cohort 
classes that the Department of Labor is administering for a 
relatively quick remedy. The result is that his claim goes 
through the Department of Energy process, which is a very slow 
remedy at best, with the physicians panel involved and with the 
state compensation system involved.
    I would like to enter into the record a joint memorial that 
our State legislature in New Mexico passed concerning reforms 
to the Energy Employees Occupational Illness Compensation Act.
    Senator Bunning. Without objection.
    Senator Bingaman. Four years ago I worked with you, Mr. 
Chairman, with Senators Thompson, Frist, Voinovich and DeWine 
to see this legislation enacted. We did have a sense of urgency 
concerning the former cold war atomic workers who were sick and 
dying from cancer or illnesses related to exposure to toxic 
chemicals. I'm concerned that the intent of that legislation 
may be lost by our effort to create a very large bureaucracy to 
administer the program. I'm even more concerned that the 
program has become so complex that those who are sick and need 
relief through this act simply cannot wade through the 
complexity of it and appeal decisions that may be adverse to 
them.
    One suggestion that I would like to make and hope will be 
followed up on is that both the Department of Energy and the 
Department of Labor establish ombudsman offices to help the 
sick workers through the pages of regulations as they appeal 
adverse decisions.
    Mr. Chairman, I'll close by just submitting for the record 
the list of constituents in my State that are now having 
appeals made with NIOSH and under the radiation dose 
reconstruction program. I'd like to ask NIOSH as part of this 
hearing to evaluate those appeals and get back to my office as 
soon as possible and give us some indication as to the status 
of those. Again, thank you for having the hearing and I look 
forward to the testimony.
    Senator Bunning. Thank you.
    Senator Murkowski.

        STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR 
                          FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. I appreciate 
you calling the hearing this morning and the opportunity again 
to bring this up. As we'll recall, Senator Domenici had 
convened a hearing on the implementation of the Energy 
Employees Act back in November of last year. Senator Grassley, 
you had testified at that hearing as well and I think at that 
hearing we learned a lot about what was going on or perhaps 
what was not going on and the problems, but I know that your 
staff has been working just very, very hard, tirelessly on this 
issue, and I appreciate all of your efforts, look forward to 
your testimony this morning.
    But I know that when we are able to resolve this issue, and 
we must do so, I think we agree on that, it will be because of 
your very, very tireless and relentless efforts on this and I 
appreciate that.
    At the November 2003 hearing, I focused on two major 
failures with the implementation of the Energy Employees Act. 
First, that DOE had processed less than one-half of 1 percent 
of the total claims filed under the act while having spent over 
$15 million of taxpayers' money. Numerous claimants nationwide, 
including Alaskans, had been waiting an inexcusably long time 
to have their claims processed.
    The second concern that I had was the lack of any 
meaningful process on resolving the willing payer issue and I'd 
like to briefly review what's occurred on these issues since 
that hearing in November. There has been some slight good news 
on the claims processing issue. DOE is now processing over 100 
claims a week, but even at this rate they're not going to 
eliminate their backlog of around 20,000 applicants for years, 
years many of the elderly and sick claimants don't have.
    DOE has issued a new rule reducing the number of doctors 
necessary on physicians panels and this may help avoid a 
bottleneck of applications at the physician panel stage of the 
claims process. Further, DOE has finally responded to, but not 
yet resolved, the concerns of some Alaskans about their claims 
under the Energy Employees Act.
    But no progress has been made on the willing payer issue. 
This is very, very difficult and it needs to be repeated that 
no progress has been made on the willing payer issue. In fact, 
I would suggest, Mr. Chairman, that things have gotten worse, 
and we cannot let this get any worse.
    So the good news, the modest good news that I have 
mentioned is far outweighed by the numerous fundamental 
problems that still remain with both the claims processing and 
the willing payer issues. Simply put, overall the 
implementation of subpart D of the act remains a catastrophic 
failure. I have no doubt that we're going to hear some of those 
problems this morning.
    I want to conclude my remarks by explaining why the Energy 
Employees Act is so important to me and why I will not rest 
until we do right for these energy workers. As some of you may 
recall, at the November hearing I discussed one of my 
constituent's experiences, Sylvia Carlsson. Mrs. Carlsson is a 
widow of a worker at the Amchitka, Alaska nuclear test site. 
Mr. Carlsson worked in a mine shaft where the largest nuclear 
test explosion ever conducted in the United States took place 
in 1971. He was exposed to large amounts of radiation. He was 
32 years old at the time of the exposure and he died before his 
41st birthday of colon cancer. And though he didn't fight in 
any war, Mr. Carlsson and many workers at the nuclear research 
and weapons facilities throughout the United States are real 
heroes. They were put in harm's way by our government, yet they 
did what was necessary to help us win the cold war and give us 
the lives that we now enjoy.
    So Mrs. Carlsson's husband is gone. She's one of the few 
individuals in the United States whose claim under subpart D of 
the Energy Employees Act has actually been processed through 
the physician panel. Her three-member physician panel issued a 
unanimous positive determination. She was found eligible for 
compensation, but her experience after receiving this positive 
physician panel determination serves as a mockery of that 
determination.
    Further, and of particular importance to other Members of 
Congress, her experience should also serve as a warning to the 
many thousands of claimants throughout the country of what to 
expect if the willing payer issue is not resolved. So put 
yourself in Mrs. Carlsson's position. She's received unanimous 
positive physician panel determination. Her husband's been gone 
now for 25 years. She expected she would now file the DOE 
physician panel determination with the Alaska Workers' 
Compensation Board and receive the appropriate compensation, 
but that didn't happen. After filing her claim, she was subject 
to months of physically exhausting and emotionally grueling 
litigation by insurance company counsel. She incurred the huge 
expense of hiring her own attorney to help her through the 
process.
    Further, she received almost no assistance from the DOE. 
And what about the positive physician panel determination? It 
was of no use. The attorney for the insurance company fighting 
her claim asked to depose the physician panel members and 
question them at a hearing before the Alaska Workers' 
Compensation Board. DOE refused to let the panel members be 
deposed or appear at the hearing. Based on DOE's refusal, the 
Alaska Workers' Compensation Board determined that the positive 
physicians panel determination was hearsay evidence. They would 
not rely on it to support a finding that Mrs. Carlsson should 
receive workers' compensation.
    I want to briefly quote the testimony that Mrs. Carlsson 
filed before the committee. She says, it was my understanding 
that the purpose of DOE's physician panel determination was to 
raise a presumption of compensability in State workers' 
compensation proceedings. DOE's physician panel determination, 
which was not only positive in my favor, but also unanimous, 
did not help my case, did not raise a presumption of 
compensability, and in fact may have actually caused serious 
damage to the outcome of my Alaska Workers' Compensation Board 
case, end of quote.
    Mr. Chairman, this is not what Congress contemplated when 
it passed the Energy Employees Act in 2000. Congress recognized 
it owed a debt to these Americans. Congress did not intend that 
these elderly widows or seriously ill survivors be put through 
more suffering and then most likely not receive the 
compensation they have earned.
    Mr. Chairman, I will not rest until we resolve this issue, 
and I look forward to working with you and the other members of 
the committee on this. Thank you.
    Senator Bunning. Senator Alexander.

        STATEMENT OF HON. LAMAR ALEXANDER, U.S. SENATOR 
                         FROM TENNESSEE

    Senator Alexander. Thank you, Mr. Chairman. I look forward 
to the testimony. I salute the chairman, Senator Grassley, 
others who've worked hard on this. I hope we're making progress 
today. I think the proposal to reduce the physicians panel from 
three to one initially is a good step. The idea of increasing 
the pay for that physician seems like a good proposal. That's 
been a big bottleneck.
    I'm looking forward to hearing more about what DOE, 
Department of Energy, plans to do on case development. I 
understand over 60 percent of the claims filed in Tennessee are 
still awaiting development. I would be interested in hearing 
the Department's opinion, the Department of Energy's opinion 
about whether it could work with the Department of Labor or 
help transfer the case development or some of the case 
development to the Department of Labor in order to improve it.
    Our cold warriors deserve to be treated fairly. I look 
forward to hearing the progress that we're making on that and I 
thank the chairman for the hearing.
    Senator Bunning. Senator Cantwell, if you would just hold 
your opening statement. Senator Grassley has to be somewhere by 
10:30 and I'm going to let him go first if it's all right with 
you.
    Senator Cantwell. More than happy to do that, Mr. Chairman.
    Senator Bunning. Senator Grassley.

      STATEMENT OF HON. CHARLES E. GRASSLEY, U.S. SENATOR 
                           FROM IOWA

    Senator Grassley. I have to be on the floor on the Welfare 
Reform bill. Well, I think you folks have laid out this problem 
very clearly, and so my statement is in support with some 
specific examples of how we can get better use of the 
taxpayers' money, so obviously I thank you very much and I also 
appreciate Senator Murkowski working with me on this issue, and 
particularly getting some very sensitive information.
    This is, of course, the second hearing in 4 months that 
I've had an opportunity to appear before you on the 
Occupational Illness Compensation Act. We all know how 
important this law is. Thousands of workers, some of whom have 
already died, and their survivors are depending on the Energy 
Department to process their compensation claims and to help 
them get payment that they feel they're entitled to and 
probably are entitled to.
    I have a personal interest in this because hundreds of 
patriotic Iowans worked at the Army ammunition plant near 
Burlington, Iowa for decades. These patriots served on the 
Nation's home front during the cold war, putting themselves at 
risk in ultra hazardous work of building nuclear weapons. The 
least our government can do is to try to compensate them, 
compensate them quickly, and compensate them obviously before 
they die.
    But that is the problem. This program is moving like 
molasses. Thousands of workers or their survivors are in limbo 
while their requests for help sit in offices here in 
Washington, D.C. Most of us are already familiar with how 
slowly the Energy Department has been moving. My statement, 
longer statement for the record, Mr. Chairman, will give 
considerable detail on that. In terms of performance, the 
winner's clear. The Labor Department is performing well, the 
Energy Department is not.
    Now I'd like to talk about whether the taxpayers are 
getting the bang for a buck in the money spent on this program 
in the Energy Department, and I don't think that any of us like 
the answer. In short, sick workers are getting shortchanged. 
The taxpayers are getting gouged, and Congress is being taken 
for a ride.
    I know the Energy Department is asking Congress to give it 
more money. I think Congress needs to be very careful about 
this. The Energy Department's problems are not going to be 
solved by throwing more money into a black hole. Senator 
Murkowski and I have been doing some oversight of the Energy 
Department's program and its contractor from New Orleans, the 
Science and Engineering Associates, and they're known as SEA. 
This company's employees are the ones processing the 
compensation claims for sick workers.
    What we have found should make Congress think twice about 
forking over more money to the Energy Department, especially 
without any guarantees that things will get better. Mr. 
Chairman, I want to note that the Navy and the SEA don't want 
these numbers out. In fact, you can see here on some of our 
documents that it is stamped proprietary business sensitive, 
and that's obvious proof that the Navy and the SEA don't want 
this information out. Sometimes people in the Government and 
the contractors who feed from Uncle Sam's trough forget who 
they're working for, because in fact they're working for the 
taxpayers, not themselves, and they should not be trying to 
hide the way that they're using the taxpayers' money, as 
evidenced by public information not being public.
    I don't see any accountability in the flow of funds on this 
program. So far, $16.7 million in taxpayers' money has flowed 
into the SEA coffers to process these claims and up to $18 
million is authorized for the contracts that expire in December 
of this year. SEA is charging exorbitant amounts of money for 
questionable results. In fact, the Energy Department is paying 
SEA about twice as much as it costs for the same work in the 
Labor Department.
    I've had a chance to analyze SEA and Energy Department 
documents, so I can compare job duties with the Labor 
Department. This is comparing apples with apples, I want to 
make clear, and these are the documents that we've looked at in 
order to draw the conclusions that we have, and these would be 
more specific examples within these binders of what we're 
talking about, plenty of figures to go through.
    According to company invoices through the end of last year, 
the lowest paid position at SEA bills the Government at a rate 
of $36.09 an hour, and that would come out to $72,180 a year, 
and that's a lot of money for someone who makes copies, sends 
faxes, and puts files in filing cabinets. In my office, that's 
what interns do, and most of them do it for free.
    At the Labor Department, the people who do these jobs would 
be GS-6 at the most. They make about $16.16 an hour, and if you 
count generous benefits at 40 percent, that's $22.62 an hour, 
$33,000 a year. And remember that the contractor is billing 72 
grand a year for these same duties. The people who do the bulk 
of the case preparation work at SEA are the nurses who examine 
the compensation claims and get them ready for the doctors to 
make a decision. SEA is billing the Government $90.51 an hour 
for the nurses' work, or about $180,000 a year, but their 
counterparts at the Labor Department are GS-12s and cost less 
than half that amount, $44 an hour, or about $93,000 a year.
    The highest paid SEA official on this project is Richard 
Cutshaw, the program manager. Now, I'm not sure Mr. Cutshaw 
is--I'm sure that he's a nice fellow, but SEA is billing 
$200.64 an hour for his time, and let me clarify that and 
emphasize it so there's no confusion. That's $200.64 an hour. 
That comes out to $401,280 a year. Mr. Cutshaw has cost the 
taxpayers more than the salaries of Energy Secretary Abraham 
and Labor Secretary Chao combined. He costs more money than the 
Vice President and the SEA charges just a bit more for his work 
than the salary of President Bush.
    Mr. Cutshaw's counterpart at the Labor Department would be 
a GS-14 district director who costs about $135,000 including 
fringes. Only in a government contract can people make so much 
money and perform so poorly, as evidenced by the testimony of 
four of you on this committee thus far. If this were the 
private sector, these people would be fired and be out in the 
street, yet SEA hires lobbyists to influence Congress to let 
the company keep this lucrative contract.
    Now we know how much that the Labor Department folks are 
getting paid, but we don't know how much SEA employees are 
getting paid. We only know how much the company is billing the 
taxpayers for their work. Now, Senator Murkowski and I asked 
SEA for information on how much it is paying the employees for 
this program. We want to figure out the margins to see how much 
SEA is profiting from this arrangement.
    Well, last week, the CEO of the company wrote me in saying 
that he would not tell, and this is after about a month ago I 
had a private meeting with him and he said he--he offered, not 
my asking, he offered to work with us because he thought that 
we were doing legitimate work. The excuse is from the CEO that 
it would hurt SEA's competition with other companies. The fact 
is that SEA, which has annual revenue of $200 million a year 
didn't have to compete for this contract. This contract was 
handed to the company in the sole-source variety. I've seen 
this kind of cover-up and stonewalling over and over again in 
my years of conducting investigations in the Senate, whether it 
be at the Pentagon in the 1980's or the FBI more recently or a 
lot of what I've been doing on big business or charitable 
arrangements over the last two or 3 years. It's the same 
problem down in New Orleans where the SEA is based.
    So I'm going to ask the General Accounting Office to 
conduct a broader investigation into how SEA got this contract. 
I will also ask GAO to analyze the mysterious way that the SEA, 
the Energy Department, and the Navy are managing this contract. 
Now, the Energy Department has a new plan called Path Forward.
    Is this a claim that we believe? If past performance is any 
indicator, I don't believe so. I don't think that the Energy 
Department's Path Forward plan is going to take us anywhere but 
in circles. It's a blind alley for workers in Iowa and states 
that you have already commented on, my fellow colleagues. I 
think the Energy Department has tried to pretend this willing 
payer problem is looming somewhere out there in the horizon. 
Well, the problem is right here on top of us, and sticking your 
head in the sand only means the problem is going to hit you 
eventually in the backside.
    Mr. Chairman, we need legislation to fix this problem. The 
Energy Department needs to be a cooperative partner with 
Congress and the Labor Department to come up with an immediate 
solution to this problem. The Department of Energy has to stop 
thinking about protecting its turf or its contractor's 
pocketbook and think about what really is important, and what's 
really important in this instance is helping these workers 
before they die, not after they die, because these are the 
workers that put their life on the line.
    I'm also going to put the Office of Management and Budget 
on notice that the administration needs to work with us to come 
up with a plan very quickly to address all the problems in this 
program, because as Senator Murkowski and I was working last 
year, they were quite an impediment, and they have a lot of 
clout up here on the Hill particularly among Republican 
Congressmen because it's a Republican administration in OMB and 
they helped kill our efforts to move forward on this last year.
    So if we don't ask them to help get this program changed, I 
think that we in Congress are getting fed up and that we'll 
have to just move forward on our own, and I'd like to do it in 
cooperation with the administration. We can't afford to wait 
any longer. This problem is not going to go away, but the 
patriots who served on the home front of the cold war are dying 
off. We need to do what we can to help as many as we can before 
it's too late.
    So Mr. Chairman and all of you on this committee, thank you 
for this opportunity, and I have--I really appreciate your 
looking into it is the best way to say it. Thank you very much.
    [The prepared statement of Senator Grassley follows:]

     Prepared Statement of Hon. Charles E. Grassley, U.S. Senator 
                               From Iowa

    Mr. Chairman, members of the committee, thank you for the 
opportunity to testify. Sen. Murkowski, I appreciate our partnership in 
working on this issue.
    This is the second hearing in four months on the Energy 
Department's implementation of the Energy Employees Occupational 
Illness Compensation Program Act of 2000. We all know how important 
this law is.
    Thousands of workers, some of whom have already died, and their 
survivors are depending on the Energy Department to process their 
compensation claim and help them get payments.
    I have a personal interest in this because hundreds of patriotic 
Iowans worked at the Army Ammunition Plant in near Burlington for 
decades.
    Nothing can make up for the illnesses these workers developed 
because they were exposed to toxic substances without their knowledge 
or consent. Today they wear their battle scars in the form of illness 
and disease.
    These patriots served on the nation's home-front during the Cold 
War, putting themselves at risk in the ultra-hazardous work of building 
nuclear weapons. The least our government can do is try to compensate 
them, compensate them quickly, and compensate them before they die
    But that is the problem. This program is moving like molasses. 
Thousands of workers, or their survivors, are in limbo while their 
requests for help sit in an office here in Washington.
    The Energy Department has processed 8.3 percent\1\ of the twenty-
three thousand claims that have been filed. But even that figure is a 
bit inflated because of a bureaucratic sleight-of-hand.
---------------------------------------------------------------------------
    \1\ http://tis.eh.doe.gov/advocacy/prog_stats/index.html (Monday, 
March 29, 2004)
    1,948 ``completed'' claims is 8.29 percent, or 8.3 percent, of 
23,474 claims filed.
---------------------------------------------------------------------------
    You need to count the applications that have actually been 
processed through the physicians panels, which is a mere 372, out of 
23,000. Leave out withdrawn and ineligible applications, and the Energy 
Department has processed only 1.6 percent of the claims.\2\
---------------------------------------------------------------------------
    \2\ http://tis.eh.doe.gov/advocacy/prog_stats/index.html (Monday, 
March 29, 2004)
    372 processed claims, or ``final decisions sent to applicants,'' is 
1.58 percent, or 1.6 percent, of 23,474 claims filed.
---------------------------------------------------------------------------
    That is a rate of four claims per week moving through the 
physicians panel, since the Energy Department got rolling in August of 
2002.\3\
---------------------------------------------------------------------------
    \3\ The Energy Department commenced claims processing after 
publishing a final rule on August 14, 2002, 19\1/2\ months ago, or 84 
weeks. 372 processed claims divided by 84 weeks equals 4.42 claims, or 
4 claims, per week.
---------------------------------------------------------------------------
    The department's own documents show it is facing a three-and-a-half 
year backlog in claims processing.\4\ The same documents show a seven 
year backlog at the physicians panels, who make the final decision on 
claims for sick workers.\5\
---------------------------------------------------------------------------
    \4\ Page 5 of ``EEOICPA Part D Path Forward: The Department of 
Energy's Plan to Eliminate the Entire Backlog of Applications by the 
end of 2006'' (attached).
    \5\ Page 6 of ``EEOICPA Part D Path Forward: The Department of 
Energy's Plan to Eliminate the Entire Backlog of Applications by the 
end of 2006'' (attached).
---------------------------------------------------------------------------
    And as far as I know, only one claim has been paid out.
    In contrast, the Labor Department has received more than 50,000 
claims, and it has made final decisions on more than 27,000, which is 
over half.\6\ And more than $750 million have been paid out.\7\ The 
Labor Department evaluates compensation claims and pays a lump sum 
amount of $150,000 to workers with radiation related cancers and 
certain illnesses.
---------------------------------------------------------------------------
    \6\ http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/
WeeklyStats.htm
    52,625 claims filed, with a final decision for 27,564 (11,769 
approved plus 15,795 denied).
    \7\ http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/
WeeklyStats.htm
    $782,306,005 in compensation paid for 10,503 payments (some 
payments split between survivors).
---------------------------------------------------------------------------
    So in terms of performance, the winner is clear. The Labor 
Department is performing well, and the Energy Department is not.
    Now .I'd like to talk about whether the tax-payers are getting the 
bang for our buck at the Energy Department.
    I don't think you're going to like the answer.
    In short, sick workers are getting short-changed, the tax-payers 
are getting gouged, and Congress is being taken for a ride.
    I know the Energy Department is asking Congress to give it more 
money. I think Congress needs to be very careful about this--the Energy 
Department's problems are not going to be solved by throwing more money 
into a black hole.
    The Energy Department is asking for $76 million for a program that 
still does not work well.\8\
---------------------------------------------------------------------------
    \8\ Page 18 of ``EEOICPA Part D Path Forward: The Department of 
Energy's Plan to Eliminate the Entire Backlog of Applications by the 
end of 2006,'' commonly referred to as the Path Forward plan. The 
Energy Department is seeking $33.3 million in FY04 appropriations 
transfer plus $43 million for its FY05 request, totaling $77.3 million, 
or $77 million.
---------------------------------------------------------------------------
    If we hand over this money, the Energy Department estimates it will 
work the claims through the physicians panels in about three years or 
so.\9\ That's a big assumption, but even if it's right, there is no 
guarantee of payment to the sick workers.
---------------------------------------------------------------------------
    \9\ Page 8 of ``EEOICPA Part D Path Forward: The Department of 
Energy's Plan to Eliminate the Entire Backlog of Applications by the 
end of 2006,'' commonly referred to as the Path Forward plan.
---------------------------------------------------------------------------
    In my state of Iowa, almost no one will be paid.\10\
---------------------------------------------------------------------------
    \10\ Page 4 of attachment accompanying April 7, 2003 letter from 
Energy Department in response to March 31, 2003 letter from Sen. 
Grassley (attached).
---------------------------------------------------------------------------
    We can't string these people along and wait for disaster. We have 
to do something now.
    Proposing more money alone to fix a problem is the easy and lazy 
way out. It sounds nice, and it may appear to be doing something, but 
it just doesn't work that way. We need reform, with accountability and 
results.
    We have to fix claims processing and the payment system so Cold War 
veterans near Burlington, Iowa, and the rest of the country, aren't 
left out in the cold.
    Sen. Murkowski and I have been doing some oversight of the Energy 
Department's program, and its contractor from New Orleans, Science and 
Engineering Associates, known as SEA. This company's employees are the 
ones processing the compensation claims of sick workers.
    What we've found should make Congress think twice about forking 
over more money to the Energy Department, especially without any 
guarantees that things will get better.
    Mr. Chairman, I want to note that the Navy and SEA don't want these 
numbers to come out. They stamped the words ``Business Confidential'' 
and ``Proprietary'' in big red letters all over these invoices.
    Sometimes people in government, and the contractors who feed from 
Uncle Sam's trough, forget who they are working for. They're working 
for the tax-payers, not themselves. And they should not be trying to 
hide the way they're using tax-payer money.
    First, even the way this contract was granted is suspicious. The 
Energy Department circumvented competitive contracting and went 
straight to the Navy, where SEA was already working.
    I don't see any accountability in the flow of funds on this 
program. So far, $16.7 million\11\ in tax-payer money has flowed into 
SEA coffers to process these claims, and up to $18 million is 
authorized for the contract that expires in December of this year.\12\
---------------------------------------------------------------------------
    \11\ Page 4 of attachment accompanying April 7, 2003 letter from 
Energy Department in response to March 31, 2003 letter from Sen. 
Grassley (attached).
    \12\ Determination and Findings for Interagency Agreement between 
the Energy Department and the Navy's Error! Main Document Only.Space 
and Naval Warfare, Information Technology Center (SITC) provided in 
Energy Department response, dated February 10, 2004, to December 22, 
2003 letter from Senators Grassley and Murkowski (attached).
---------------------------------------------------------------------------
    And there's no end in sight to blowing this money--the Energy 
Department and the Navy can fork over more money at any time, like they 
have been doing for two years.
    SEA is charging exorbitant amounts of money for questionable 
results. In fact, the Energy Department is paying SEA about twice as 
much as it costs for the same work at the Labor Department.
    I've analyzed SEA and Energy Department documents so I can compare 
job duties with the Labor Department. This is comparing apples to 
apples.
    According to company invoices through the end of last year, the 
lowest paid position at SEA bills the government at a rate of $36.09 an 
hour--that comes out to $72,180 a year.\13\
---------------------------------------------------------------------------
    \13\ See ``Navy SITC chart for SEA billing'' spreadsheet 
(attached).
---------------------------------------------------------------------------
    That's a lot of money for someone who makes copies, sends faxes and 
puts files in filing cabinets.
    In my office, that's what interns do, and most of them do it for 
free.
    SEA uses the title ``Records Analyst'' or ``Mail Room'' for these 
duties.
    At the Labor Department, the people who do these jobs would be GS-
6, at the most. They make about $16.16 an hour, and if you count 
generous benefits at 40 percent, that's $22.62 an hour, or $33,000 a 
year.\14\
---------------------------------------------------------------------------
    \14\ See attached spreadsheet comparison by Sen. Grassley's staff.
---------------------------------------------------------------------------
    Remember, the contractor is billing $72,000 a year for the same 
duties.
    The people who do the bulk of the case preparation work at SEA are 
the nurses who examine the compensation claims and get them ready for 
the physicians to make a decision.
    SEA is billing the government $90.51 an hour for nurse's work, or 
about $181,000 a year.\15\
---------------------------------------------------------------------------
    \15\ See ``Navy SITC chart for SEA billing'' spreadsheet 
(attached).
---------------------------------------------------------------------------
    But their counterparts at the Labor Department are GS-12, and cost 
less than half that amount: $44 an hour, or about $93,000 a year.\16\
---------------------------------------------------------------------------
    \16\ See attached spreadsheet comparison by Sen. Grassley's staff.
---------------------------------------------------------------------------
    The highest-paid SEA official on this project is Richard Cutshaw, 
the program manager. Now I'm sure Mr. Cutshaw is a nice fellow, but SEA 
is billing $200.64 an hour for his time.\17\
---------------------------------------------------------------------------
    \17\ See ``Navy SITC chart for SEA billing'' spreadsheet 
(attached).
---------------------------------------------------------------------------
    Let me be clear so there's no confusion--I said $200.64 per hour.
    That comes out to $401,280 a year!\18\
---------------------------------------------------------------------------
    \18\ See attached spreadsheet comparison by Sen. Grassley's staff.
---------------------------------------------------------------------------
    Mr. Cutshaw costs the tax-payers more than the salaries of Energy 
Secretary Abraham and Labor Secretary Chao combined. He costs more 
money than the Vice President, and SEA charges just a bit more for his 
work than the salary of President George W. Bush.
    Mr. Cutshaw's counterpart at the Labor Department would be a GS-14 
District Director, who costs about $135,000, including fringes.\19\
---------------------------------------------------------------------------
    \19\ See attached spreadsheet comparison by Sen. Grassley's staff.
---------------------------------------------------------------------------
    Only in a government contract can people make so much money and 
perform so poorly. If this were the private sector, these people would 
get canned and be out on the street.
    Yet SEA hires lobbyists to influence Congress to let the company 
keep this lucrative contract.
    Now SEA says that the average hourly wage is $60 an hour, but 
that's misleading.\20\
---------------------------------------------------------------------------
    \20\ See ``Navy SITC chart for SEA billing'' spreadsheet 
(attached).
---------------------------------------------------------------------------
    That is not comparing apples and apples. That figure overlooks the 
employees at the Labor Department who are doing the same work, with 
equivalent knowledge skills and ability. When analyzing costs, you have 
to compare apples and apples, not apples with every kind of possible 
fruit.\21\
---------------------------------------------------------------------------
    \21\ Job description of SEA employees available upon request.
---------------------------------------------------------------------------
    Now we know how much the Labor Department folks are getting paid, 
but we don't know how much SEA employees are getting paid. We only know 
how much the company is billing the taxpayers for their work.
    Sen. Murkowski and I asked SEA for information on how much it is 
paying the employees in this program. We want to figure out the margins 
to see how much SEA is profiting from this arrangement.
    Well, last week, the CEO of the company wrote me a letter saying he 
won't tell.
    The excuse is that it will hurt the SEA's competition with other 
companies. The fact is that SEA, which has annual revenues of 
$200,000,000, didn't have to compete for this contract. This contract 
was handed to the company.
    I've seen this kind of cover-up and stonewalling over and over in 
my years of conducting investigations in the Senate, whether it's at 
the Pentagon, the FBI or with Big Business. It's the same problem down 
in New Orleans where SEA is based.
    I will be asking the General Accounting Office (GAO) to conduct a 
broad investigation into how SEA got this contract. I will also ask GAO 
to analyze the mysterious way that SEA, the Energy Department and the 
Navy are managing this contract.
    That's not all.
    SEA has spent almost $5 million on a computer system.\22\ When this 
system went operational, it did not do what it needed to do, according 
to the GAO and an Energy Department consultant.
---------------------------------------------------------------------------
    \22\ Attached chart accompanying March 24, 2004 letter from the 
Energy Department in response to December 22, 2003 letter of Senators 
Grassley and Murkowski.
---------------------------------------------------------------------------
    This consultant, the Hays Group, said the department could have 
bought off-the-shelf software for $50,000.\23\ So it looks like they 
built a system with a square wheel, and when they found out it doesn't 
roll, they spent millions to customize it.
---------------------------------------------------------------------------
    \23\ http://tis.eh.doe.gov/advocacy/haysReport_eeoicpa_111403.pdf
    Page 16 (18 of 30 in pdf format) of ``EEOICPA Program Process 
Enhancements and Efficiency Improvements,'' commonly known as the Hays 
Report, November 14, 2003.
---------------------------------------------------------------------------
    I just don't buy the excuse that it had to reinvent the wheel by 
building a software system from the ground up.
    To the Energy Department's credit, there is some progress. After 
ramping up for several years, The Energy Department is now moving cases 
up to the door-step of the physicians panels for a final decision at a 
pretty good rate of about 110 per week.\24\
---------------------------------------------------------------------------
    \24\ Page 5 of ``EEOICPA Part D Path Forward: The Department of 
Energy's Plan to Eliminate the Entire Backlog of Applications by the 
end of 2006,'' commonly referred to as the Path Forward plan.
---------------------------------------------------------------------------
    But that just doesn't cut it. The department admits that this rate 
only keeps up with the influx of new claims coming in the door.\25\ And 
now the bottle-neck looks like it will move from claims processing to 
the panels of physicians.
---------------------------------------------------------------------------
    \25\ Page 7 of ``EEOICPA Part D Path Forward: The Department of 
Energy's Plan to Eliminate the Entire Backlog of Applications by the 
end of 2006,'' commonly referred to as the Path Forward plan.
---------------------------------------------------------------------------
    Even here, the Department is changing its own report card. In March 
of 2003, the Department told Congress it could move 100 claims per week 
through the physicians panels by August of 2003. Now, the department 
says it is moving at least 100 claims a week up to the physicians 
panel.\26\
---------------------------------------------------------------------------
    \26\ Pages 7 and 8 of Energy Department response, dated February 
10, 2004, to December 22, 2003 letter from Senators Grassley and 
Murkowski.
---------------------------------------------------------------------------
    That's a huge difference. For a nuclear weapons plant worker, it 
means you have a decision on your claim, or you're still waiting for a 
decision.
    To explain this discrepancy, the department wrote me a letter that 
says, quote, ``DOE has refined the framework it uses to measure 
performance.''\27\
---------------------------------------------------------------------------
    \27\ Pages 7 and 8 of Energy Department response, dated February 
10, 2004, to December 22, 2003 letter from Senators Grassley and 
Murkowski.
---------------------------------------------------------------------------
    Well, the only performance measure that counts is helping sick 
workers, and the Energy Department just can't measure up.
    Now the Energy Department has a new plan called ``The Path 
Forward.'' The plan assumes that if Congress gives the Department 
another $76 million, then 15,000 claims will move through the 
physicians panels in one year. That's about 310 claims per week.\28\
---------------------------------------------------------------------------
    \28\ Page 9 of ``EEOICPA Part D Path Forward: The Department of 
Energy's Plan to Eliminate the Entire Backlog of Applications by the 
end of 2006,'' commonly referred to as the Path Forward plan.
---------------------------------------------------------------------------
    Is this a claim we can believe? If past performance is any 
indicator, I just don't buy it.
    The department has moved claims through the physicians panels at a 
rate of four claims a week over the past 18 months.\29\ And they have 
not requested medical records for almost two-thirds of the claims: only 
8,950 request have been made for more than 22,000 claims.\30\
---------------------------------------------------------------------------
    \29\ The Energy Department commenced claims processing after 
publishing a final rule on August 14, 2002, 19 and a half months ago, 
or 84 weeks. 372 processed claims divided by 84 weeks equals 4.42 
claims, or 4 claims, per week.
    \30\ Page 2 of ``EEOICPA Part D Path Forward: The Department of 
Energy's Plan to Eliminate the Entire Backlog of Applications by the 
end of 2006,'' commonly referred to as the Path Forward plan.
---------------------------------------------------------------------------
    But let's pretend for a moment that the Energy Department gets the 
money it wants, and then all of a sudden figures out what it's doing 
and really starts moving these claims.
    I'll be the first to congratulate them, but there's one problem--
there is no one to pay valid claims to the workers at an unknown number 
of sites. A substantial number of claims will not be paid, and the 
Energy Department can't give Congress a good estimate.
    In my state of Iowa, no one who worked at the Army Ammunition Plant 
will have a valid claim paid. That's right, Zero. Because there is no 
willing payer.\31\ I don't think the Energy Department's Path Forward 
plan is going to take us anywhere but in circles. It's a blind alley 
for workers in Iowa and many other states.
---------------------------------------------------------------------------
    \31\ Page 4 of attachment accompanying April 7, 2003 letter from 
Energy Department in response to March 31, 2003 letter from Sen. 
Grassley (attached).
---------------------------------------------------------------------------
    I think the Energy Department has tried to pretend this willing 
payer problem is not looming on the horizon. Well, the problem is 
almost on top of us, and sticking your head in the sand only means the 
problem going to hit you in the back-side.
    The Energy Department's plan says the solution to the willing payer 
problem is to hire someone to do a study. This is kicking the can down 
the road, not a path forward.
    Mr. Chairman, we need legislation to fix this program.
    We also need to decide if we want to pay twice as much money as we 
need to. Should we be patient and let the Energy Department and its 
contractor continue to learn on the job, while sick workers die off?
    Or do we turn this program over to experienced professionals at the 
Labor Department and charge them with the responsibility to pay the 
claims?
    The Energy Department needs to be a cooperative partner with 
Congress and the Labor Department to come up with an immediate solution 
to this problem.
    Last year, the Energy Department fought against a proposal to send 
this program to the Labor Department. And it's still hiding internal 
documents about its efforts, refusing to turn them over.
    The Energy Department has to stop thinking about protecting its 
turf, or its contractor's pocketbook, and think about what's really 
important--the workers who put their lives on the line.
    I'm also going to put the Office of Management and Budget on notice 
that the administration needs to work with us to come up with a plan 
very quickly to address all the problems in this program.
    If not, I think that we in Congress are getting so fed up that we 
will just have to move forward with our own plan.
    The Senate has already put the administration on notice that these 
problems need to be fixed soon.
    Along with 15 other co-sponsors, I authored a bipartisan Senate 
resolution on this issue. During the budget debate this month, the 
Senate unanimously passed the resolution, which called for improvements 
in the program in four areas.
    First, claims should be promptly, equitably, and efficiently 
compensated. Second, Changes should be made to the Energy Employees 
Occupational Illness Compensation Program Act to improve claims 
processing and review by physicians panels to ensure cost-effective and 
efficient consideration and determination of workers' claims. Third, 
Changes should be made to the program to provide for membership in 
additional special exposure cohorts. Fourth, a plan must be made at the 
earliest opportunity to effectively resolve the issues dealing with a 
lack of a willing payer.
    We can't afford to wait around any longer. This problem is not 
going to go away, but the patriots who served on the home-front of the 
Cold War are dying off. We need to do what we can to help as many as we 
can before it's too late.
    One more point, Mr. Chairman.
    As members of this committee may or may not know, the Department of 
Energy decided to send up proposed legislation to amend Part D of the 
act last night at 6:05 p.m.
    This proposal focuses on the problems at the physicians panels. I'm 
not going to get into the merits of this proposal, except that some of 
this is common sense, so you have to wonder why it's taken so long for 
the Energy Department to figure this out.
    Specifically, the Energy Department has been telling me since last 
summer that the physicians panels were the root of the 20,000 case 
backlog.
    This is a bit disingenuous, since the department had not even 
processed enough claims to keep a small number of doctors busy. There 
was no backlog at the physicians panels. But that's what they told me 
over 8 months ago. Eight months ago, they recognized this problem, and 
last night at the 11th hour before this hearing, the department somehow 
comes up with detailed, proposed legislation to address this issue.
    The timing is highly suspicious.
    Rest assured, I'm not going to wait another eight months for a 
solution that resolves the issues with regard to a lack of a willing 
payer.
    Mr. Chairman, members of the committee, thank you very much for an 
opportunity to testify.
    Mr. Chairman, I have Finance Committee duties to attend to, so I 
cannot stay for questions. And I thank you for holding this hearing.

    Senator Bunning. Thank you, Senator Grassley. I appreciate 
your participation and couldn't agree with you more. Senator 
Cantwell, would you like an opening statement at this time?

           OPENING STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman. I see the 
ranking member is here.
    Senator Bunning. He's already given his.
    Senator Cantwell. Thank you, Mr. Chairman, and thank you 
for holding this important hearing and I want to personally 
thank you for the leadership that you as an individual have 
shown on this issue and your willingness to tackle the tough 
issues associated with the Employee Occupation Illness 
Compensation Program. I would also like to recognize the 
efforts of other members of the committee, Senator Bingaman, 
and obviously Senator Grassley, who just spoke, who were 
instrumental in putting this program into place as part of the 
fiscal year 2001 Defense budget authorization.
    At the time, Congress recognized that the Federal 
Government must play a long overdue role in its debt to those 
citizens who have been made sick and many of them fatally ill 
from the work at the Nation's nuclear weapons complex. For too 
long we failed to recognize the contributions of these workers 
and the service that they did on the cold war and the work that 
they did on my state at the Hanford Nuclear Reservation.
    The workers at the Hanford site and other sites, as many of 
my colleagues have said, are patriotic Americans. They're proud 
of their service and they were proud to defend our freedoms and 
our way of life. However, many nuclear weapons workers were 
unaware of the hazards they faced. For many decades, the 
Federal Government had endeavored to keep these hazards a 
secret and the Energy Employees Occupation Illness Act was an 
effort to make sure that many decades of wrong efforts were 
actually put in the right direction by passing those programs, 
and I think it was an incredible achievement.
    But the bottom line is that 3\1/2\ years later we are left 
with the question of whether the intent of this act is being 
fulfilled and why the program is failing in the minds of many 
of the terminally ill workers and their families who need our 
help. Mr. Chairman, today we're going to talk about a lot of 
the intricacies associated with the program's administrations 
and its bottlenecks, but we cannot forget that this problem has 
a human face, and I have met with many of those people from 
Richland, Washington who are the survivors or the families of 
those individuals, and these are people who cannot wait any 
longer. They are people who are sick and in need of expensive 
medical treatment. They are dying, and others in their family 
have seen them waste away from the illnesses that were caused 
during this.
    So I want to make sure that today while we talk about this, 
that we also talk about what we're going to do to immediately 
help these individuals. Take, for example, the case of Shirley 
Mattheny. Shirley worked at the Hanford site for 20 years as a 
secretary. She began her job in a building that was 
subsequently closed down due to contamination and then later 
reopened and then later closed again. DOE did not tell her and 
any of the other workers in that building of the potential 
hazard that they faced working in that facility. Today, Shirley 
has eight tumors and lung cancer. She filed her claim almost 2 
years ago through the Department of Labor. Her case was 
referred to NIOSH, and while she has medical and work history 
records, most of the information that has been included was 
redacted and she told me that she checks in with NIOSH once a 
month, but every time she is told that her case will take more 
time to process.
    There are other individuals that--their stories I'm sure, 
Mr. Chairman, could baffle this committee, and it's unfortunate 
that we have not had an opportunity to hear from some of those 
individuals, because they are spending their time proving that 
they worked at Hanford, proving that they actually did the 
basis of the work at Hanford; they actually had to prove their 
exposure. And, Mr. Chairman, I would like to submit for the 
record copies of some of the information that various 
constituents of mine have gotten from DOE and the various 
contractors in their record files. Some of them are just 
calendars with circles on them. Some of them have information 
with big letters, withdrawn written across it. Some of them are 
copies of documents that say, no information.
    And when you look through these, I said to my staff, I 
can't understand what this means, there's no information here, 
and that's the point. That's what many of these individuals get 
back is no information, and that is the basis by which they are 
supposed to prove their case.
    Now, I'd ask my colleagues to think about this. We have 
another Federal program that didn't work this way. Under the 
Agent Orange Act of 1991 and related legislation, the Federal 
Government acknowledged that about 20 million gallons of toxic 
herbicides were used in Vietnam conflict between 1962 and 1971. 
And under that law, veterans who served in Vietnam between 1962 
and 1975 or visited Vietnam even briefly and have illnesses 
associated with Agent Orange are presumed to have been exposed. 
These individuals are thus qualified to receive health care 
services and disabilities compensation through the Veterans 
Administration.
    Are these workers of the nuclear complex any less 
patriotic? Are they any less deserving that they have to prove 
their case? We did not make the veterans of the Vietnam War 
reconstruct flight patterns of military aircraft, tell us where 
the herbicides were deployed. We did not make them provide the 
certain vicinity that they were at at the time that those 
herbicides were used. We recognized that they had an impossible 
task and we created a program to compensate these individuals.
    Yet the way the current Energy Employee Program is 
constructed and implemented, that is exactly what we are asking 
the cold warriors to do, to go to some enormous task where 
documents don't exist and determine what their exposure to 
radiation and toxic chemicals were at DOE's sites is just a 
task that is almost impossible to complete.
    And let's not forget that this challenge is being made more 
complicated by careers that in my cases span decades of an 
employment at the Hanford Nuclear Reservation, which I'm sure 
some of my colleagues don't even realize is about the size of 
the State of Rhode Island. People don't even know in some of 
these facilities, the various contractors and their records and 
their process and their patterns, and that is why I think it is 
critically important that members of this committee join 
together to work on new legislation that is so important to 
help these individuals get the compensation that they deserve.
    In my view, new legislation should reflect a number of key 
priorities. First, none of the proposals that I have seen to 
date suggest that DOE is equipped to handle a workers' 
compensation program or assist in program as outlined in the 
original act. For that reason, I have supported Senator 
Grassley and Senator Murkowski's proposal to shift the entirety 
of this program to the Department of Labor.
    Second, we need to identify a solution to the fact that 
there are about 35 to 40 percent of the compensation claims 
where there are no willing payers, and even after doctors have 
examined the workers and their illnesses caused by them within 
the nuclear complex, there are little resources to help them in 
their medical needs.
    And third, we need to create a viable program for creating 
an additional special exposure cohort or assume as we did with 
Vietnam, the presumption that these individuals were affected. 
The fact that we created this act in 2000/2001 and yet we have 
not really seen the continuation of these special exposure 
cohorts to make it easier for people to show what their 
exposure has been, has been the biggest disappointment of this 
program.
    So all this information is crucial to establishing the 
backlog and the backlog that NIOSH really never came up with 
when it was charged with saying, okay, go back and look at the 
individual exposures in these areas and come up with a 
framework. We failed to do that, and I know some of my 
colleagues have been critical of that as well.
    So, Mr. Chairman, while we're here today to discuss the 
changes to the program, I want to emphasize how urgent it is 
that we come up with a solution now, that these workers and ex-
workers can no longer continue. I want to make additional 
comments about the IG's investigation into some of the 
mishandling and misreporting of data that is just prolonging 
this issue, but I will submit that to the record, and thank you 
and my colleagues for paying such important attention to an 
issue that does matter to the lives of individuals in 
Washington State.
    [The prepared statement of Senator Cantwell follows:]

        Prepared Statement of Hon. Maria Cantwell, U.S. Senator 
                            From Washington

    Thank you, Mr. Chairman, for holding this important hearing today. 
I would like to thank you for your leadership on this issue, and your 
willingness to tackle the difficulties associated with the Energy 
Employees Occupational Illness Compensation Program.
    I would also like to recognize the efforts of other members of this 
Committee, notably Senators Bingaman and Bunning, who were instrumental 
in putting this program in place, as part of the Fiscal Year 2001 
Defense Authorization bill. At that time, Congress recognized that the 
federal government must pay a long-overdue debt to those citizens made 
sick--many of them fatally--from their work within our nation's nuclear 
weapons complex. For too long, we failed to recognize the contributions 
of these workers and their service on the front lines of the Cold War, 
here on our nation's own shores-at sites such as the Hanford Nuclear 
Reservation in my home State of Washington.
    The workers at Hanford and other production sites are patriotic 
Americans. They are proud of their service to defend our freedoms and 
way of life.
    However, many nuclear weapons workers were unaware of the hazards 
they faced. For many decades, the federal government had endeavored to 
keep these hazards secret. The Energy Employees Occupational Illness 
Compensation Program Act was an effort to right many decades' worth of 
wrongs, and its passage--the first such program in about 30 years--was 
an outstanding achievement.
    Three and a half years later, however, we are left to question 
whether the intent of the Act is being fulfilled--and why the program 
is failing in the minds of many of the terminally ill workers and 
families who need this help.
    Mr. Chairman, today we're going to talk about a lot of the 
intricacies associated with the program's administration and its 
bureaucratic bottlenecks. But we cannot forget this problem's human 
face. This past Saturday, I went to Richland, Washington, and I met 
with more than 30 former Hanford workers or in some cases, their 
survivors. These people cannot wait any longer. These people are sick 
and in need of expensive medical treatment; some of them are dying; 
others have seen their family members waste away from illnesses they 
believe were caused by their contributions to this nation's Cold War 
efforts.
    Many of the people I spoke with were in their 70s and 80s, are 
being treated for cancer, and filed claims two or three years ago. None 
of the claims have been answered. The people I spoke with haven't 
received a dime. Meanwhile, they are overburdened with expensive 
medical bills, excessive paperwork, and little hope.
    Back in 1999, when then-Energy Secretary Bill Richardson announced 
that the government would cease challenging the compensation claims of 
former employees who got sick from exposure to radioactive and toxic 
materials, he said that DOE would no longer stand for ``Department of 
Excuses.'' Unfortunately, excuses are the only thing many of these 
former Hanford workers have received. And I don't believe we have time 
for any more.
    Take, for example, the cases of Shirley and Jack Mattheny. Shirley 
worked at the Hanford site for 20 years, as a Secretary. She began her 
job in a building that was subsequently closed due to contamination--
the building was re-opened, then later closed yet again. DOE did not 
tell her or any of the other workers there of the potential hazards 
they faced. Today, Shirley has eight tumors and lung cancer. She filed 
her claim almost two years ago, through the Department of Labor. Her 
case was referred to NIOSH, and while she has medical and work history 
records, most of the information included has been redacted. She told 
me she checks in with NIOSH once a month, but every time she's told her 
case will take about another two months to process.
    Her husband Jack faces a similar situation. He was a sheet metal 
man at the Hanford site for forty years--he has cancer and asbestosis 
and is awaiting an answer on his case. Jack has been given copies of 
DOE records that supposedly track his dosage exposures dating back to 
the late 1940s. I have copies of some of them right here. As my 
colleagues and today's witnesses can see, some of these are marked 
``best available copy.'' Yet they are illegible, and obviously 
incomplete. Perhaps it's the quality of these reproductions. Perhaps 
these records were kept in pencil. But for the $74 million of taxpayer 
money we have poured into the Department of Energy's program, I would 
like to think that DOE could purchase a high-quality photocopier to 
help these people out because in the meantime, Jack and Shirley are 
trying to cobble together their dosage exposures to support their 
claims and their medical bills continue to pile up.
    Yet another woman I met with last weekend reported that she has 
been trying to file a claim for her deceased husband. For months, DOE 
refused to acknowledge that her husband had been employed at the 
Hanford site--until she finally unearthed some pay stubs to prove it.
    And just yesterday, my office heard from a gentleman who is trying 
to help his now-deceased brother's family file a claim through this 
program. He filed with the Department of Labor, and the case was 
subsequently referred to NIOSH. He called recently to check in on the 
claim's status, and it became obvious that something was horribly awry. 
Possibly due to a spelling error in the name of the contractor, he 
discovered that--based on information from DOE--NIOSH was trying to 
reconstruct his brother's dosage exposures at Hanford for a period of 
time when his brother was actually working in Alaska. And as it turns 
out, the supposed-Hanford contractor had never even operated in the 
State of Washington.
    I listen to these stories and I have to wonder about why it is the 
federal government is placing the burden of proof on these sick workers 
and their families. Based on what I know about DOE's record-keeping--
and the records I have seen from these constituents, which contain more 
black ink than actual information--these people face an impossible 
task.
    We have other federal programs that don't work this way. For 
example, under the Agent Orange Act of 1991 and related legislation, 
the federal government has acknowledged that about 20 million gallons 
of toxic herbicides were used in the Vietnam conflict between 1962 and 
1971. Under the law, veterans who served in Vietnam between 1962 and 
1975--or visited Vietnam even briefly--and have illnesses associated 
with Agent Orange are presumed to have been exposed. These individuals 
are thus qualified to receive health care services and disability 
compensation through the Veterans Administration.
    We do not make these veterans reconstruct flight patterns of the 
military aircraft that deployed these herbicides to defoliate trees and 
remove cover for our foes. We do not made them prove that they were in 
a certain vicinity on a given day when these herbicides were used. And 
that is right and that is fair--because we have recognized that would 
be an impossible task for any individual veteran, and that these men 
and women deserve medical care and compensation for their service to 
this nation.
    Yet, with the way the current energy employees program is 
structured and implemented, this is exactly what we are asking our Cold 
Warriors to do. The task they confront in documenting exposures to 
radiation and toxic chemicals at DOE sites is equivalent to asking them 
to reconstitute flight patterns and combat deployments. And let's not 
forget that this challenge is made more complicated by careers that in 
many cases spanned decades, in the employment of multiple DOE 
contractors, on sites as sprawling as Hanford--which, for my colleagues 
reference, is about the size of the State of Rhode Island.
    Our Cold War veterans are not being treated fairly. And that's why 
I'm pleased that there seems to be the will among a number of members 
of this committee to work on legislation to help get these workers the 
compensation they need and so richly deserve. In my view, this 
legislation should reflect a number of key priority items:

   First, none of the proposals I've seen to date suggest that 
        DOE is equipped to handle a workers compensation or assistance 
        program, as outlined in the original act. For that reason, I 
        have supported--and continue to support--Sen. Grassley and Sen. 
        Murkowski's proposal to shift the entirety of this program to 
        the Department of Labor.
   Next, we need to identify a solution to the fact that there 
        is no willing payer for perhaps as many as 35 percent to 40 
        percent of the compensation claims filed under this program, 
        even after doctors have determined that a worker's illness was 
        caused by work within the nuclear weapons complex.
   Third, we need to create a viable policy for creating 
        additional Special Exposure Cohorts (SECs). There are far fewer 
        barriers to compensation for individuals who are included in 
        these SECs, but we have yet to see the agencies involved take 
        the steps necessary to put in place a fair process. For 
        example, the Department of Health and Human Services has failed 
        to finalize the rules by which additional classes of employees 
        could petition for inclusion in Special Exposure Cohorts. 
        Likewise, it appears that the state of DOE's own records--on 
        which NIOSH's subsequent dosage reconstructions must rely--are 
        in a state of complete disarray. It seems to me that one of the 
        first steps the Department of Energy should have taken when 
        this program began was to complete profiles of each of the 
        sites, to catalogue the hazards and critical incidents that 
        these workers may have faced depending on the type and 
        timeframe of their employment. In addition, these profiles 
        would give us a better idea of what data no longer exist.
        I understand that Sen. Clinton inserted a provision in the 
        Fiscal Year 2004 Defense Authorization bill, requesting a study 
        from NIOSH on the state of these data and records. I will be 
        interested to hear today how that report is progressing.
        All of this information is crucial to establishing additional 
        SECs, which would cut down on the obvious backlog that is 
        accumulating in the NIOSH dose reconstruction process and break 
        down the barriers for these sick workers. We can and must do 
        this more efficiently. Yet, if DOE and HHS are unwilling to 
        take these steps on their own, Congress should direct them to 
        do so.
   Fourth, we should--based on sound science--take a hard look 
        at adding additional illnesses to the list of those covered in 
        the original legislation, such as beryllium-induced lung 
        cancer.
   And lastly, I believe we must establish an ombudsman to help 
        advocate for these workers, oversee the complicated multi-
        agency process this program requires, and be held accountable 
        to Congress.

    These are steps on which I think we can come to a bipartisan 
consensus--and steps that will help these Cold War veterans get the 
help they deserve. So I look forward to working with my colleagues on 
development of this legislation.
    But Mr. Chairman, while we are here today to discuss compensation 
for those who in decade's past were put in harm's way at our nuclear 
weapons production sites, we cannot forget about today's workers, who 
are cleaning up the Cold War's legacy. I will not for one second 
minimize the unprecedented science and engineering challenges 
associated with cleanup of DOE sites such as Hanford. But I also have 
to believe--actually, I must insist--that we will heed the lessons 
we've learned over the past 50 years about worker health and safety.
    As most of my colleagues are aware, The Washington Post this 
weekend reported on a draft audit conducted by the Department of 
Energy's Inspector General, which suggests that DOE has maintained 
``inaccurate and incomplete accident and injury data'' at nuclear 
cleanup sites including Hanford. Further, the audit concluded that 
``some of the department's safety-performance statistics were 
overstated--that is, performance had been reported to be better than it 
actually was.''
    Now, I understand that this audit is still in its draft form, and 
DOE has yet to conclude its official review of the findings. However, I 
have to say that I find these conclusions very troubling. I am 
especially troubled, because this is a time of great concern about an 
intensifying pattern of worker exposures to vapors emanating from 
Hanford's 177 underground tanks. These tanks hold a witches' brew of 
high-level radioactive and chemical wastes--possibly the most hazardous 
combination of substances in the DOE complex. Over just the past two 
weeks, eleven workers have reported exposures to vapors or odors and 
much of the work at the tank farms was shut down last Thursday.
    I am glad that DOE and the contractor at the tank farm announced on 
Friday some interim precautions and a safety evaluation of expanded 
scope. But as far as I know, no is sure why these vapor exposures are 
happening. What's more, there does not seem to be general agreement 
regarding their seriousness, medical consequences or the long-term 
precautionary steps that should be taken to protect these workers.
    At this moment, there are also at least three different 
investigations going on at the Hanford site. The DOE Office of 
Independent Oversight and Safety Assurance, DOE Inspector General and 
the Washington state Attorney General are reviewing a number of issues 
related to these tank vapor exposures, as well as the way workers' 
medical records have been treated at Hanford. Similarly, I understand 
that representatives of NIOSH were on site earlier this month to 
evaluate worker hazards at the Hanford tank farm.
    Mr. Chairman, late last month--when Secretary Abraham instituted 
the DOE investigations into these matters--I requested that this 
Committee hold hearings on the current state of worker safety at these 
cleanup sites. I would like to thank Sens. Bingaman and Smith for also 
supporting this request, and ask that you consider scheduling such a 
hearing as soon as possible.
    I would say to my colleagues--as well as Under Secretary Card, who 
is here today--that I was dismayed by the Department's response to this 
weekend's Washington Post story regarding the IG's audit, when a DOE 
spokesman dismissed concerns about some of these issues as ``political 
potshots.'' Nothing could be further from the truth.
    Ensuring that the systems are in place to protect those who are 
today hard at work at DOE cleanup sites is not about politics. Rather, 
this is about making sure that, 20 or 30 years from now, our successors 
are not sitting at a hearing similar to this one, trying to figure out 
how to compensate workers injured or made sick during the cleanup 
process.
    This is about learning the lessons of the past--that these workers 
are not an expendable commodity; that it's in the federal government's 
best interest to look out for their health and safety. Out of respect 
for the last generation of workers put in harm's way, the federal 
government must not make the same mistakes again.
    Again, Mr. Chairman, I thank you for holding this important hearing 
and look forward to the testimony of our witnesses.

    Senator Bunning. Your whole statement will be submitted for 
the record. Now we will have the second panel, Mr. Robert Card, 
Under Secretary of Energy. Mr. Card, you can begin at any time 
you're ready.

         STATEMENT OF ROBERT G. CARD, UNDER SECRETARY, 
                      DEPARTMENT OF ENERGY

    Mr. Card. Mr. Chairman, thank you. I'm going to call your 
attention just to briefly summarize my testimony to the charts 
that are displayed here and I'll be brief. You can see from the 
first chart on case processing that our case preparation for 
the physician panels has----
    Senator Bunning. Sir, we cannot see the charts.
    Mr. Card. Okay.
    Senator Bunning. So you better put them out so we can see 
what they're talking about.
    Mr. Card. We have handouts, don't we?
    Senator Bunning. That's better. At least I can see it now.
    Mr. Card. Can you see it now?
    Senator Bunning. Okay.
    Mr. Card. Okay. And we will get you copies of these. Sorry. 
I thought you had them already. So you can see from this first 
chart on case processing that our case preparation for the 
physician panels has dramatically improved. This was enabled 
principally by the funding boost we received last fall just 
before the November hearing, and you can see a note there in 
the line representing when that happened.
    Note that in the last 6 months we've processed nearly five 
times as many cases as in the previous 13 months. But as I said 
in the last hearing, this was not good enough, and you'll see 
that we have a plan to do more with your help by relieving 
funding constraints.
    The next chart on physicians panel throughput shows that 
we've made significant improvements to the processing in 
processing cases through the physician panels as well. This was 
achieved by bringing physicians together full time during 
temporary leave, often vacation, from their jobs. As I noted in 
the last hearing, the physicians only work part-time as part of 
the legislative fix we're going to be proposing.
    This took us from 2.6 physician FTEs, full-time 
equivalents, to 9.8 FTEs, which is all we've managed to obtain 
from the 160 physician pool provided by NIOSH. Current 
statutory constraints make significantly increasing physician 
availability from this point nearly impossible, although we've 
recently revised our rule to gain substantially more 
productivity from these limited physician hours available and 
NIOSH, as you'll hear later, has significantly stepped up their 
recruiting efforts.
    Next chart. While not nearly fast enough, this increase 
gives us confidence that we know how to process an adequate 
number of cases if we're able to reduce constraints on 
physician availability.
    This last chart on our backlog elimination plan shows our 
plan to eliminate the entire backlog through the physician 
panels by the end of 2006. This includes working off more than 
10,000 additional cases that we expect to receive between now 
and then. We're confident that we can achieve this plan 
provided that, first, Congress approves both the January funds 
reprogramming request for fiscal year 2004 and the President's 
February request for fiscal year 2005, and second, Congress 
enacts the legislation for the physicians panels that we sent 
to them yesterday.
    We are pleased that the American College of Occupational 
and Environmental Medicine has endorsed our proposal. And with 
that, I look forward to your comments and questions.
    Thank you.
    [The prepared statement of Mr. Card follows:]

        Prepared Statement of Robert G. Card, Under Secretary, 
                          Department of Energy

    Mr. Chairman and distinguished members of the Committee, thank you 
for the opportunity to testify about the Department of Energy's (DOE) 
refocused effort and progress made towards carrying out Part D of the 
Energy Employees Occupation Illness Compensation Program Act of 2000 
(EEOICPA).
    Since my last appearance in front of this committee on November 21, 
2003, the Department of Energy has made substantial improvements in 
processing Part D applications. In just the last six months, 
application development increased from 130 per month to 475 per month, 
more than a 350% improvement, and DOE has maintained an average 
development rate of more than 100 per week since November 2003; average 
final Physician Panel determinations increased from seven per month to 
almost 120 per month, more than a 1,700% improvement; the number of 
backlogged cases that were still awaiting initial processing has been 
slashed by more than 3,500 applications, a 25% reduction. I would also 
like to draw particular attention to OMB Director Bolten's letter of 
November 6th, 2003, where he stated that the Department had committed 
to developing to the Physicians Panels 25% of the then 15,000 
application backlog within six months of receiving the full FY04 
appropriations, including approval of DOE's appropriations transfer 
request. That equates to 3,750 applications developed for the 
Physicians Panel. To date, although we still have not received 
Congressional concurrence on the FY04 appropriations transfer request, 
we have developed over 1,800 applications for the Physicians Panel. 
Regardless of this short-term goal, we want to eliminate the entire 
backlog, through the Physicians Panels, by the end of 2006.
    Even though we have made these improvements and are moving forward 
to entirely eliminate the backlog of applications, we know much more 
needs to be done. Mr. Chairman, we have shown we can improve our 
performance, and we have the plan to improve it even more. But we need 
your help.
    Since my last appearance, the Department executed a top-to-bottom 
review of the Part D process, and developed a comprehensive plan to 
eliminate the backlog of applications by the end of 2006. To achieve 
that, we recently issued an Interim Final Rule revising our Physicians 
Panels processes that we believe will double the production of our 
determinations, reprioritized our application processing and 
determination order, and implemented scores of process improvements 
recommended by the Department of Labor, the National Institute of 
Occupational Safety and Health, the General Accounting Office, the Hays 
Group, the Workers Advocacy Advisory Committee, outside organizations, 
and Members of Congress. But we need legislation and more resources in 
order to fully execute this plan.
    The Department's plan is aggressive, and is based upon the fastest 
possible hiring of physicians to review applications and render 
determinations. We believe that will be the biggest challenge in this 
plan, but also believe it is achievable with your help. As I stated 
earlier, it is a four part plan that includes legislative, regulatory, 
procedural and budgetary changes.
    Legislative Changes. Yesterday the Secretary transmitted to 
Congress a legislative proposal to remove impediments to our ability to 
process applications. First, it would eliminate the statutory pay cap. 
The pay level set in EEOICPA Part D only allows the Department to pay 
Panel physicians $69 per hour, when the average consulting rate for 
occupational medicine physicians is $130 to $150 per hour. Because of 
the pay cap, the 167 part-time physicians work an average of three 
hours per month, and are the equivalent of fewer than three full-time 
physicians. When we are able to establish temporary full-time panels, 
we are able to raise that FTE rate to almost 10, but maintaining those 
full-time panels is very difficult given the relatively low-pay. In 
fact, almost 20 physicians have refused to participate further in the 
process because it does not make financial sense for them to do so.
    Second, the legislative proposal would expand the hiring authority 
for these Panel physicians. EEOICPA currently limits the Department to 
hiring Panel Physicians as intermittent or temporary experts, a status 
which limits them to six months of work in any year. Considering the 
heavy case-load ahead of us, we must have the authority to hire them as 
federal or contract employees, be able to pay them a market rate, and 
be able to utilize them for the next two-and-half years to eliminate 
the backlog.
    Third, the legislative proposal would eliminate the requirement 
that DOE and a State enter in an agreement before a worker's 
application can be processed. We have no intention of terminating the 
agreements already in place, but because of changes in State 
governments and other considerations, approximately 6% of our 
applications are from workers in States that have not entered into an 
agreement with DOE. We hope to conclude agreements with those States, 
but in the meantime this requirement means that more than 1,200 workers 
have to wait for DOE-State agreements to be signed before their 
applications can proceed to a Physicians Panel for a determination, an 
impediment we believe should be removed.
    In addition, we are working on an additional legislative proposal 
that will be forwarded independently that refines the definition of 
what is actually a Department of Energy facility under EEOICPA. 
Although the findings and Conference Report for the statute clearly 
state that the Part D program was established to compensate DOE and 
contractor employees who worked in Department of Energy facilities as 
part of the nuclear weapons production and testing process, the statute 
as currently drafted defines a DOE facility as almost any DOE facility, 
regardless of any nexus to nuclear weapons production or testing. Under 
such a definition, I would be eligible to apply for benefits under 
EEOICPA having worked in the Department of Energy's Forrestal 
headquarters building on Independence Avenue. This legislation will 
refine the definition of DOE facilities to limit it to those involved 
in nuclear weapons testing or production, and those in which employees 
were exposed to a significant radiological hazards, such as those 
facilities in our current Federal Register list. We will specifically 
draft it so that no facility currently listed on the Facilities List 
will have to be taken off the list.
    Regulatory Changes. On March 17th, 2004, I signed an Interim Final 
Rule allowing DOE to use Physician Panels with only one physician 
instead of three. The original rule, based upon the Fernald Physician 
Panel model, was based on a program with 200 applicants. With more than 
23,000 applicants to date, the Department needs to utilize its 
Physician Panels more productively. Considering other federal 
compensation programs such as the Department of Veterans Affairs use 
single physicians to make their medical determinations, we determined 
that a single physician would be suitable here as well. This change 
will substantially speed up the Physicians Panel review process, 
delivering determinations to applicants weeks, if not months, sooner.
    Under this Interim Final Rule, if the first physician makes a 
positive determination, that is sent forward as a positive 
determination. If, however, the physician makes a negative 
determination, the application is automatically sent to a second 
physician for review. If that second physician also makes a negative 
determination, then it is sent forward in the process as a negative 
determination. If that second physician makes a positive determination, 
it is sent to a third physician for review. The sum of the three 
physicians' determinations is used as the positive or negative 
determination sent forward in the process. No changes are made in this 
Interim Final Rule to the Secretary's review of determinations or to 
the applicant's appeal rights.
    DOE's experience to date is that there have been very few split 
panel decisions. As a result, we believe this new process will speed up 
the processing of applications without prejudicing applicants. 
Moreover, this new procedure will reduce the average number of total 
physician hours expended on each determination by almost 60%, and the 
Department will save more than $37 million in physician's pay between 
now and the end of 2006. Without this Rule revision, the Department 
would require almost 50% more physicians to process the same number of 
applications.
    It is because of these productivity improvements that the 
applicants will also benefit. Given the previous Rule's requirement 
that three physicians coordinate their determinations in person, by 
phone, or other communications, we believe the new Rule will reduce to 
total time an application will spend in the Physician Panel process 
from weeks, even months, to days. This will mean the applicant gets 
their determination that much sooner. And just like under the original 
Rule, every negative determination requires the concurrence of two 
physicians.
    This Interim Final Rule became effective on March 24, 2004. It 
could have been issued as a Direct Final Rule, but given the interest 
in all aspects of this program, we decided to invite public comment 
through an Interim Final Rule process. If members of the Committee have 
additional ideas on how to best operate the Physicians Panel, I would 
invite them to comment.
    Procedural Changes. When DOE started processing Part D 
applications, it adopted a first-in, first-worked prioritization. We 
now have moved to the front of our queue those applications where the 
per-panel deliberation time will be minimal and there is a strong 
relationship between activities performed and the associated ailments.
    We've specifically done that with claims for exposure to beryllium, 
silica and asbestos, given the strong relationship between these 
substances, their associated ailments, and their specific use in 
nuclear weapons production. Similarly, given the higher standard of 
causation used in the Part B benefit determination process (given that 
Part B actually provides a direct cash benefit), we are moving those 
Part D applications where a positive Part B determination has already 
been made to the front of the queue as well. Additionally, given that 
medical benefits are available in most State workers compensation 
systems for living applicants; we are moving applications filed by 
living applicants ahead of those filed by survivors. Finally, given 
that the statute requires us to provide all available information, 
including dose reconstructions from relevant Part B applications, we 
are setting aside those Part D applications where Part B dose 
reconstructions are pending. All together, this reprioritization of the 
applications should maximize the number of determinations in the 
immediate timeframe, for the applicants most likely to directly benefit 
from a Physician Panels determination.
    Finally, we are planning to competitively bid the additional 
application processing requirements eliminating the backlog will 
require. In doing so, the Department will be able to standardize 
procedures across the spectrum of operations, integrate the application 
development process with the Physician's Panels, and maximize the 
flexibility available to the Department in executing this program as 
quickly as possible. Given the corporate knowledge possessed by our 
current contractor, we anticipate their continuing operations at 
current production rates. Further, given the substantial improvements 
implemented in the Case Management System (CMS), we anticipate 
maintaining that system as well.
    Budgetary Changes. On January 30th, 2004, the Secretary requested 
Congressional approval to transfer $33.3 million of FY04 appropriations 
to the EEOICPA program. If approved, these funds will allow the 
Department to capitalize on the legislative, regulatory, and procedural 
changes I've just detailed, as well as to provide the Department the 
resources necessary to hire the additional field data collection 
workers, application processors, and Panel physicians necessary to 
eliminate the backlog by the end of 2006. However, unless these funds 
are received by the end of April 2004, the Department will not be able 
to meet that end of 2006 goal. In addition, the President requested $43 
million in the Administration's FY05 budget to continue this backlog 
elimination plan.
    I know some of you have raised concerns with these budget requests 
and the apparent lack of production to date, and the lack of Part D 
applicants receiving State workers compensation benefits. But as I 
discussed in my last appearance before this Committee, significantly 
more Part D applications have been filed than originally anticipated 
and significant effort and investment has been required to cope with 
that larger volume. As a result, the program development costs, akin to 
initial capital investment costs, were also substantially greater than 
DOE originally thought.
    As for the operating expenses necessary to execute Part D, and 
DOE's plan to eliminate the backlog of applications by the end of 2006, 
the major variable is the National Institute of Occupational Safety and 
Health's (NIOSH) ability to recruit sufficient physicians in time to 
meet the determination case load required in this plan. We have been 
working closely with NIOSH and professional medical organizations such 
as the American College of Occupational and Environmental Medicine 
(ACOEM) to develop a plan that provides for a credible physician hiring 
rate, and as stated in the letter from ACOEM, the number of physicians 
we are seeking is credible, especially at a more competitive pay rate 
we have proposed.
    But assuming our original physician supply assumptions hold true, 
we believe it is wise to take advantage of our ability to significantly 
ramp up the processing of applications to the Physicians Panel, even if 
those Panels cannot immediately accept them. It makes little sense to 
not complete this work while we have the opportunity. It would be 
unfortunate to have physicians sitting idle because of a lack of 
applications ready for review--a situation for which the Department was 
roundly criticized at last November's hearing.
    But now we need Congress' help. We need Congress' concurrence to 
the appropriations transfer soon. Every month's delay in receiving that 
concurrence is a month's delay in achieving our goal of totally 
eliminating the application backlog. And if we don't receive that 
concurrence by this summer, we will have to stop our field data 
collection programs, with layoffs required at the participating DOE 
sites. If we don't receive that concurrence in April, we may have to 
stop processing Part B employment verification and NIOSH dose 
reconstruction data requests in order to devote our remaining resources 
to Part D application development. These funds are needed regardless of 
any changes Congress may make to the Part D program.
    At this point I have discussed our plan to minimize the remaining 
time for each applicant to receive a physician's panel determination 
and to maximize the willing payers for those that receive a positive 
determination. Additionally, we have reexamined our ability to support 
applicants in filing the state workers compensation claim and have 
increased our assistance in supporting them completing the claim 
submittal. These items together will maximize the benefits of the state 
workers compensation process that Part D was intended to address. We 
are gratified that the first state benefit has now been paid and we 
expect to see an increasing number of payments as the applicant 
pipeline into the state programs fills up.
    However, it needs to be clear that it appears that no causality 
will be found by the physician's panels for many of the applicants and 
an as yet undetermined percentage of the applicants may end up without 
a willing payer or other solution in the State program. Further, for 
those with a willing payer, the causality determination by the State 
program and the level of benefit are still not certain.
    To provide information on the scope of these issues, DOE has 
proposed a study by the National Academies that would commence when 
sufficient cases have been through the state program to provide 
meaningful data regarding the finding of willing payers, the causality 
determinations and the benefit received. Given the probable several 
month time period required for a state program determination from the 
date of application submittal, we anticipate that it will be the end of 
the year before sufficient data are available for this study. While we 
are aware that many workers want and deserve answers now, we believe 
that there is simply not enough information available at this time to 
underpin sound policy decisions.
    Many of you have stated your desire a more robust benefit for Part 
D applicants. However, regardless of what benefit is provided, or which 
agency executes the process, more medical determinations need to be 
made, and more data needs to be collected. Regardless of the process 
used, more money and legislative relief are needed.
    The Department of Energy has accelerated application processing 
considerably since I last appeared before this Committee. We have 
conducted a top-to-bottom review of the program and the numerous 
recommendations provided, implemented what we can immediately, taken 
what steps we can in the short term to further accelerate the process, 
developed a plan to implement additional improvements as the resources 
become available, proposed legislation to eliminate impediments to that 
plan, and requested the resources to fund it. Although there will 
invariably be additional improvements we can and will make, we believe 
we have a credible plan in place that can accelerate the process now, 
and allow for us to accelerate it further in future. But there's only 
so much the Department can do independently. Ultimately, we will need 
additional resources and statutory changes to the statute to achieve 
our goal of eliminating the entire backlog by the end of 2006. And that 
additional help can only come from Congress.
    I am available to answer the Committee's questions.
                                 ______
                                 
                                      Department of Energy,
                                     Washington, DC, March 29, 2004
Hon. J. Dennis Hastert,
Speaker of the House of Representatives, Washington, DC.
Hon. Richard B. Cheney,
President of the Senate, Washington, DC.
    Dear Mr. Speaker: The purpose of this letter is to submit proposed 
legislation to amend Part D of the Energy Employees Occupational 
Illness Compensation Program Act of 2000 (EEOICPA). The amendments 
would remove impediments to the Department of Energy's (DOE) timely 
processing of applications submitted to DOE under Part D. Specifically, 
the proposed legislation would eliminate the pay cap on physicians 
serving on Part D physician panels, eliminate the requirement that 
these physicians work on only a temporary or intermittent basis, and 
eliminate the requirement for agreements between DOE and States.
    Part D authorizes DOE to provide assistance to DOE contractor 
employees in applying for State workers' compensation benefits. DOE 
provides this assistance by helping workers develop their case files 
and obtain a determination from a physician panel as to whether it is 
at least as likely as not that exposure to a toxic substance at a DOE 
facility ,was a significant factor in aggravating, contributing to, or 
causing the illness or death of the worker. The preparation of these 
case files is a multi-faceted effort that involves gathering employment 
records, establishing relevant occupational histories, and collecting 
medical records.
    The current backlog of Part D applications pending at DOE is over 
20,000 applications and growing. A significant factor contributing to 
this backlog is the inadequate supply of physicians willing to review 
applications and make determinations at the compensation rate allowed 
by EEOICPA, which limits the physicians pay to approximately $69 per 
hour. Physicians with the requisite skills to make EEOICPA 
determinations normally are paid at a market rate of at least $130 per 
hour. Further, the statutory requirement that physicians be retained as 
temporary or intermittent consultants or experts limits the 
availability of physicians who otherwise are capable and willing to 
serve on physician panels.
    In order to eliminate the backlog of Part D applications and 
transition to a lower rate of processing applications, DOE needs a high 
degree of flexibility. The proposed legislation provides this 
flexibility, and would allow DOE to pay physicians at a rate high 
enough to attract sufficient numbers of them to do physician panel 
work.
    DOE also is being hindered in the processing of Part D applications 
by the statutory requirement that DOE enter into an agreement with a 
State before DOE processes Part D applications from individuals in the 
State. We believe these agreements are unnecessary. Nothing in EEOICPA 
requires a State to be bound by a physician panel determination nor 
authorizes DOE to participate in State workers' compensation 
proceedings. There is no conflict of interest between DOE and a State 
that requires an agreement. Despite this fact, in some instances, 
because of changes in State administrations and for other reasons, it 
has proven difficult to negotiate agreements with States. In these 
instances, the requirement for an agreement is preventing DOE from 
processing applications from hundreds of applicants.
    For these reasons, we urge prompt passage of the enclosed 
legislative proposal.
    The Office of Management and Budget has advised the Department that 
enactment of this proposal is in accord with the program of the 
President.
    The Administration is working on legislation to refine the 
definition of the DOE facility and will provide legislative language in 
the near future.
    Should you have any questions or need additional information 
concerning this proposed legislation, please contact Mr. Rick Dearborn, 
Assistant Secretary, Congressional and Intergovernmental Affairs, at 
(202) 586-5450.
            Sincerely,
                                           Spencer Abraham,
                                               Secretary of Energy,
[Enclosures.]

                                 ______
                                 
                                 A BILL

    To improve the efficiency of the Department of Energy's Energy 
Employee Occupational Illness
    Compensation Program, and for other purposes
    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. STATE AGREEMENTS.

    Section 3661 of the Energy Employees Occupational Illness 
Compensation Program Act of 2000 (42 U.S.C. 7385o) is amended by
    (1) in subsection (b), striking ``Pursuant to agreements under 
subsection (a), the'' and inserting ``The'';
    (2) in subsection (c), striking ``provided in an agreement under 
subsection (a), and if''; and
    (3) in subsection (e), striking ``if provided in an agreement under 
subsection (a)'' and inserting ``if a panel has reported a 
determination under subsection (d)(5)''.

SEC. 2. PHYSICIANS PANELS.

    Section 3661 (d) of the Energy Employees Occupational Illness 
Compensation Program Act of 2000 (42 U.S.C. 7385o(d)) is amended by 
amending paragraph (2) to read as follows:
    ``(2) The Secretary of Health and Human Services shall select the 
individuals to serve as panel members based on experience and 
competency in diagnosing occupational illnesses. The Secretary shall 
appoint the individuals so selected as panel members or shall obtain by 
contract the services of such individuals as panel members.''.

    Senator Bunning. Thank you, Mr. Card. As of March 18, the 
Department of Energy has completed only 4.5 percent of over 
2,700 Kentucky workers' requests for assistance. Eighty-eight 
percent of those completed cases were found to be ineligible 
cases or were withdrawn. Zero Kentuckians have received any 
payment for their claims, zero, out of 2,700.
    What is even more troubling than the overall numbers is 
that fully 36 percent of Kentuckians claimants, and 44 percent 
of all claimants nationwide, have not even yet had work begun 
on their claims. After 4 years and over approximately $18 
million being spent on this program, how is this possible?
    Mr. Card. Well, first of all, let me say that in Kentucky I 
do note, while we're not thrilled with the progress in any 
case, but we do have a tenfold increase in cases currently in 
the physicians panel process compared to the hearing 4 months 
ago. As I explained at the hearing last time, there were a 
number of issues which hindered in effect the start-up of this 
program.
    One was the--it took us more time than it should have to 
get the rule out, which instituted nearly a 2-year delay in the 
process. And second, the number and complexity of the 
applicants far exceeded our original estimates.
    I think if there is good news in that I think we understand 
the problem now and have demonstrated that we can connect with 
it if we have the right resources and processes.
    Senator Bunning. How can we believe the claims that DOE 
makes in its Path Forward documents when the DOE has failed to 
meet prior commitments to Congress, and more importantly to the 
workers around the country who have been made ill by their DOE 
work?
    Mr. Card. I would just say that every commitment that I 
made in the November hearing has been exceeded. We committed 
that we would try to average 100 cases a week. We've exceed 
that. We've exceeded our physicians panel estimates.
    Senator Bunning. This law was made in 2000.
    Mr. Card. I understand that, but----
    Senator Bunning. Did you just take over this program?
    Mr. Card. I took over this program approximately 12 months 
ago.
    Senator Bunning. Twelve months ago. Who was your 
predecessor?
    Mr. Card. Predecessor was Assistant Secretary for 
Environmental Health and Safety, who reports to me.
    Senator Bunning. And is that a she or a he?
    Mr. Card. That's a she.
    Senator Bunning. She should be here then to answer the 
questions that we would like to ask in relation to the failure 
of DOE to fulfill the law.
    Mr. Card. I would be glad to answer questions from that 
time because I am familiar with those if you'd like.
    Senator Bunning. Then tell me and explain to me how it took 
3 years to get this program up and running.
    Mr. Card. Well, as I said----
    Senator Bunning. It took us about 6 months to get the 
program through the Congress of the United States with an awful 
lot of people working very hard. It seems to me that the DOE 
could have at least in 6 months got a program up and running so 
that these people are not dying before they collect their 
benefits.
    Mr. Card. I understand, Senator, and I certainly understand 
your concerns. I would just say this is a case of changing 
expectations, as I testified in November. The documents we have 
from the origin of this process as we came into office 
suggested this was a 10-year program. In fact, we will beat 
that. It suggested that the applicant expectation might be less 
than 10,000. It's now clearly going to be over 30,000. It took 
more time than it should have to come to grips with the 
changing dynamics of the program, and frankly the expectations 
of the constituents.
    Senator Bunning. Mr. Card, in your statement you said that 
DOE could just do this job right if it had more time and more 
money. Where have we heard that before? From every agency of 
the Federal Government. DOE has already squandered the past 4 
years and up to $16.7 million. That's documented. And when the 
program director makes more than the President of the United 
States of America something is definitely wrong with the 
program and the non-bid contract that has been passed out by 
DOE. Maybe you can explain that.
    Mr. Card. Yes, I'd like to respond that. First of all, 
recognizing the late start and the urgency of getting started, 
we used what contracting mechanisms were available to us for a 
quick start. It typically takes a year or more to procure a 
full-blown contract, which would have instituted yet another 
delay in our program to do that.
    So through the Navy we acquired the service of this 
contractor. Could you find the chart showing there labor rates? 
We have analyzed the labor rates for this contract and think 
that on an hourly basis the taxpayer is getting a good deal. 
It's yet to be said whether we're getting a good deal overall 
because we're pushing them very hard once we receive the 
resources to achieve this new level of performance, by the way, 
which we expect to bid an additional contract to obtain.
    We've analyzed three different support service contractors 
doing similar kinds of work for DOE and SEA's labor, fully 
loaded labor rates are less than all of them. We've also 
analyzed a composite Federal workforce using the A-76 process, 
a full-burdened Federal labor rate just like you would have to 
do the President of the United States, because Senator Grassley 
was talking about cost of the person's salary, not cost of 
providing the labor, which doesn't include real estate and a 
whole bunch of other things that's common practice in the 
consulting industry.
    So while I'm not here to defend whether SEA's rates are 
proper, they certainly are within the competitive range and 
soon we'll find out when we bid for the extra capacity 
contract.
    Senator Bunning. If in fact the Congress of the United 
States continues to allow you to operate this contract.
    Mr. Card. That would be of course your choice.
    Senator Bunning. You bet it will.
    Senator Bingaman.
    Senator Bingaman. Thank you, Mr. Chairman. Mr. Card, we 
have a flowchart that tries to describe this process, this 
claims process, and I'd like to just have a copy given to you 
and to each member of the panel here so that you, if you have 
any disagreement with it you could tell us, but otherwise it 
would help explain my question.
    As I understand the broad outline of the law that you're 
trying to administer, you're trying to administer part of it, 
if a worker has an injury or a disease that's caused by 
exposure to radiation, then they go through this process. They 
file a claim with the Department of Labor, and the Department 
of Labor verifies their employment, and then if they go into 
one of these special cohorts for cancer, then the Department of 
Labor decides whether the medical criteria have been met. If 
they have been met, they pay them $150,000 and that's the end 
of that.
    Now, that system has worked reasonably well. That's the 
left-hand side of this chart. The right-hand side is the part 
that DOE has been directed to administer and it doesn't work as 
well. Everything you put up here relates to what you're doing 
at the Department of Energy to try to get these cases through 
are halfway down the right-hand side through the physicians 
panel.
    Now, what Senator Murkowski is referring to is the fact 
that once you get through the physicians panel you're nowhere, 
except you have the right then to go to your State workmen's 
comp plan and they may or may not give any deference to this 
and in many cases don't, and even if they do, you're probably 
not going to get any real compensation in a lot of States.
    Wouldn't it make a lot of sense for us in Congress, now 
that we've seen how ineffective the program is on the right-
hand side, and this right-hand side applies to people who have 
been injured from toxic substances rather than from radiation 
exposure, if we just said, okay, anybody who's been injured by 
a toxic substance and can demonstrate that they were injured as 
a result of their employment with the Department of Energy. 
They would then also go into some kind of a special cohort, if 
they fit into a special cohort, where there would be a 
determination by someone, DOL or you or somebody, that the 
medical criteria are met and they'd get $150,000.
    Wouldn't that simplify things dramatically and we would 
then be actually getting some of the money that we're 
appropriating to the people who've been injured and not 
dissipating so darn much of it in this processing effort that 
we're going through here? It just seems to me that we are 
essentially supporting an amazing bureaucracy, and everyone's 
in good faith. I'm not saying that the people working in the 
bureaucratic system we have laid out aren't trying to do what 
we told them to do, but we told them to do so much that the 
system is clogged up. What's your response to that?
    Mr. Card. First of all, I think that's a fantastic 
explanation of the problem that we have in front of us here. 
Obviously it would be simpler. I would just refer the 
committee, because I know they're going to hear from GAO later, 
I thought the GAO testimony actually contained an excellent 
overview of I think it was four different choices if one didn't 
like the path that we're on. I also thought GAO did quite a 
good job of highlighting some of the uncertainty in each of 
those paths, and I don't think----
    Senator Bingaman. Well, let me just cut to the quick there 
and say their option number 3, which is expanding subtitle B 
program that does not use a workers' comp model. It says the 
subtitle D program would be eliminated as a separate program, 
and if found eligible, a claimant would receive a lump sum 
payment and coverage of future medical expenses related to 
workers' illnesses, assuming that they had not already 
benefited under subtitle B. The Department of Labor would need 
to expand its regulations to specify which illnesses would be 
covered.
    Why don't we just adopt that? It would put a lot of the 
people that you've hired out of work, but it would get the 
funds to the people who've been injured and that was our 
purpose originally.
    Mr. Card. Well, Senator, I'm not sure I can answer you why 
not. I just know that this topic was debated, I understand, in 
2000 when the bill was passed, and Congress at that time 
decided to go on the path they've gone on. As I think is 
discussed in the GAO testimony, there's a number of issues. How 
would you determine what a fair payment was? What would be the 
equities between this class of workers and other classes of 
workers? And the causation is much more difficult to get a 
handle on with these illnesses than in radiation, which is the 
Department of Labor half of the chart that you've handed out.
    So to us, there doesn't appear to be any simple answers. 
There certainly is plenty of concern and agony and we'd like to 
find an answer. But it's elusive to us because there's a lot of 
complex issues as illustrated in the GAO testimony.
    Senator Bunning. Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman. I guess I'm 
going back to the hearing that we had in November. My question 
basically is the same question that I had then, and listening 
to your testimony this morning, I suppose that I'm somewhat 
encouraged that we're processing more people, that in fact 
we're seeing more people, we're getting them through this 
process. Your chart shows that we're actually able to get more 
people through the physician review panel.
    But yet, we still have only one claim in the entire country 
that has ever been paid under subpart D. The chairman here has 
indicated that there are zero in Kentucky, there are zero in 
Alaska. And my question to you in November was, how does this 
benefit the Mrs. Carlssons of the world if we can say, ta-da, 
we've put you through the process, but there is nothing at the 
other end. Where is the results-based focus of this program? 
Are we just patting ourselves on the back because we're saying 
we've improved the processing, we're improving moving people 
through a system, but the system doesn't allow for any result?
    The question that I asked in November was, let's talk about 
this willing payer issue, how are we going to resolve that. I 
asked if there was any specific proposal that DOE had, and 
where we are in that process. But again, we're talking about a 
process where we're moving real people through a system, real 
people who have lost their loved ones, real people that are 
dying, and we as a government are saying, well, we're satisfied 
because we're processing you. This is absolutely not acceptable 
until we resolve claims. What are we doing to resolve the 
claims?
    Mr. Card. Well, I certainly share your concern about that 
and I want to thank you for the suggestions at the November 
hearing. We've done our best to implement several of them, and 
in fact, one specific suggestion you had of mine was 
expectations management. We've begun that process and will be 
having a significant communication exercise with the 
constituents in April to try to do a better job with that.
    Regarding again on the willing payer issue, the problem 
comes down to the fact that the law wasn't a results-based law. 
The left-side of Senator--actually it's our chart, I think--
Bingaman's chart, part B, was results-driven. The part D was 
clearly a process-driven law and we're doing our best to 
implement that. If you want to change it into a results-driven 
law then I would go back to the discussion I just had with 
Senator Bingaman about, well, so what result would we be 
shooting for.
    I will say some encouraging news is that we expect several 
hundred claims paid to be coming out of the system in the 
balance of this year, which if one wanted to figure out how to 
mimic the results coming from the states that have willing 
payers, then you'd at least have some data. And we have 
proposed a National Academy study to look at these equity 
issues and what the benefits actually appear to be as we get 
some statistically significant data.
    The challenge with that for most of this committee who are 
here today is that will take longer than they have in mind, so 
that's kind of up to the system to figure out how fast are we 
going to move, if at all, to change the intent of the original 
law to produce a result-driven process instead of a process-
driven process.
    Senator Murkowski. Well, for what it's worth, Mr. Chairman, 
I'm not particularly interested in waiting around for a study 
as more individuals wait around for compensation, and if in 
fact all we have set up in law is a process for people with no 
expectation that we're going to see results for them at the 
other end, then I would suggest we better change it pretty 
quickly.
    Senator Bunning. Thank you.
    Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman. Mr. Card, 
you're, I'm sure, aware that there was an article in The 
Washington Post this weekend talking about the IG impending 
report and the fact that it basically said that DOE has 
maintained inaccurate and incomplete accident and injury data. 
Do you agree with that?
    Mr. Card. Well, the--actually I had the benefit of having a 
person debrief on that report from the IG a couple weeks ago. 
The data that they are referring to--well, first let me just 
say that having any disconnect between what we're using to 
manage safety at headquarters and the field, which is the focus 
of--item of great concern for us, and there clearly was some.
    I'm gratified though to say that the disconnect did not 
involve information that we use to manage our contractors and 
safety, and furthermore, the field, which has the primarily 
line responsibility for safety, had and was acting on all the 
right information all the time. So it's unfortunate that report 
came out in whatever form it did without our comments included 
in it, and when you see our comments, you'll see that we more 
clearly define what the implications of that information is.
    Senator Cantwell. So you're saying that DOE did maintain 
inaccurate information, but you're saying it wasn't relevant?
    Mr. Card. No, what--the focus of the report is the sites--
contractors report into the sites various types of safety 
information. Some of that information is more important than 
other information and some of that information is customized 
for sites. What the IG detected was is the reporting from the 
site to headquarters on some of that information was not 
accurate, and that's a concern for us.
    Senator Cantwell. And some was incomplete.
    Mr. Card. Well, they identified that some, like our 
privatization contractors were not required to report at all 
because of the structure of their contracts and we're moving to 
rectify that problem. The key information we use, such as the 
OSHA recordable and lost work day statistics, were accurately 
reported from the field to headquarters, and furthermore, I 
just want to reemphasize that the field where the primary 
safety enforcement occurs and the monitoring had the right 
information all along and was acting on it.
    Senator Cantwell. I'm not sure what that means to the 
individual worker, because obviously part of this is DOE 
understanding what is happening to the contractors that we have 
contracted this work with, but let me also ask you, there was 
also information in that report that said that the Department 
had basically overstated some of its safety performance 
statistics, that basically the agency, the DOE, had kind of 
inflated, overstated the information so that it would look like 
the report was better. Do you think that happened as well?
    Mr. Card. And that was on particular metric called--I'm 
trying to remember the exact term of it, but it's where you 
combine a series of OSHA statistics with a cost indicator. That 
metric is not used as a primary performance indicator in DOE 
headquarters. But we did detect at our Idaho site and a couple 
others that there were some reporting errors, which we've moved 
to fix. Again, where you see one error, you have to suspect 
there may be more, and we've looked at that and we're relieved 
to find that in the key reporting statistics that we used that 
that was not an issue.
    Senator Cantwell. Well, I think we're all going to be very 
anxious to get our hands on the Inspector General report and I 
take all reports by Inspector Generals very seriously, and to 
have the agency basically comment in the newspaper over the 
weekend that it was politics was a huge surprise and it showed 
that basically that the information wasn't being taken 
seriously.
    Mr. Card. The comment regarding politics had nothing to do 
with our feelings about the Inspector General, who we have a 
great relationship with.
    Senator Cantwell. Well, without copy and access to this, 
you're saying, yes, there was inaccurate and incomplete 
information, but it didn't really matter because the field was 
doing its job, and that the overstating happened in one case 
but it doesn't really matter, and on the other hand we're 
sitting here dealing with decades of misinformation and people 
not having access to reports and data, and the fact that maybe 
what we're getting from DOE is not the oversight of the job 
that we expect them to do.
    So it's pretty frustrating when we look on the end of what 
was happening with the individual contractors and we find no 
data, no information, and then we see an IG's report saying, 
yes, DOE isn't really doing their job on oversight of the 
contractors either, and you're saying, well, but the 
information exists in the field. And I guarantee you that's not 
what we're hearing from people out in the field, from the 
individual people in the process.
    But let me ask you a question, because one of the 
challenges of the original act was that NIOSH was supposed to 
come up with, within 90 days, a way of looking at these other 
special cohorts and processes, actually looking at what 
information is available to be collected out in the field and 
give us some information reports. Do you think that the failure 
for NIOSH having done that is an important element of the 
success of this program?
    Mr. Card. I'm not familiar with that specific issue. I'll 
just say that we're very appreciate of the support we've got 
from NIOSH and they're doing a great job of helping us get 
through the physician panels. I know there will be a NIOSH 
witness later and it's--I also understand that it's a part B 
issue as well, so I just would feel I'm stepping out of bounds 
a little bit to comment on that.
    Senator Cantwell. Okay, then let me be clear and--I know my 
time is expired, Mr. Chairman, so maybe I'll come back on the 
next round.
    Senator Bunning. That's great, because we got lots of 
questions for Mr. Card. The Department of Energy stated at a 
hearing--the hearing on November 21 that it was developing 
proposals to fix many of the problems with the current set-up 
of the physician panels. Only 1.6 percent of the 23,000 cases 
DOE has received has been completed by the physicians panel.
    Then, the question is, why did the Department wait until 6 
p.m. last night, the night before this hearing, to show the 
Senate its proposed legislation?
    Mr. Card. Well, Senator, I think the polarity of the 
activity may be reversed there. The more correct is we worked 
hard with OMB and other agencies to get it done by then. So I 
wish I could say we had the luxury of having it done earlier 
and waited, but we frankly wanted it here for the hearing today 
so we could discuss it and we were able to get it out and we're 
proud we were able to do that. That was the last commitment I 
made at the November 21 hearing.
    Senator Bunning. November 21, December, January, February, 
March, that's 4 months plus, just about 4 months.
    Mr. Card. That would be correct.
    Senator Bunning. And you said you would have the 
information for us. Was this hearing a surprise to you?
    Mr. Card. No, it wasn't a surprise to us. We had a number 
of commitments, Senator. We revised the rule, there was--we 
agreed we would survey all of the obstacles that we had in the 
processes to make sure we delivered the right legislative 
package, we made the right rule revisions. And so frankly while 
we wish the process was much quicker and we're not satisfied, 
we're--I would say we're pleased with the progress that we've 
made since the November 21 hearing, and if we are able to 
resolve the issues that we've put before Congress now, then 
we're committed and we feel we have the ability to achieve the 
backlog work off by 2006 as we promised.
    Senator Bunning. Earlier, in our earlier discussion, you 
talked about--I talked about the 4 years and how much time, and 
you told me there was a rulemaking process and that kind of 
prevented you from getting to it. DOE was not prohibited before 
they passed their rule. They were just not allowed to work on 
the physician panels, so they could have worked on the cases 
during the 2-year period it took you to develop the rule.
    Question: What did DOE do on the cases during the time they 
were developing the rule?
    Mr. Card. The cases were received, and as I understand it, 
and I'll clarify this for the record, make sure I'm giving you 
the correct answer here, the issue was, we needed to know what 
information the physician panels needed and how they were going 
to process their work, so it would have been redundant to have 
gone out and tried to prosecute those cases to the physician 
panel prior to the rule being finalized.
    Senator Bunning. But the law was pretty clear in how we 
wanted to cover those who were exposed.
    Mr. Card. Well, the law was clear in that it required a 
causality determination by the physicians panel, but it wasn't 
very clear in terms of how that would be done.
    Senator Bunning. That was your interpretation of the law?
    Mr. Card. Yes, sir.
    Senator Bunning. Well, it was not our interpretation of the 
law. That's where we have a major problem in the total process 
time it took for DOE to really get into this thing and get the 
services to the people that had the problems.
    That's our concern. Everybody at this table up here is 
concerned we're not getting the dollars and the relief to the 
people that expose themselves for the good of their country in 
all of these cases, 23,000 of them have registered with the DOE 
and one case is completed. Now that's unacceptable in anybody's 
standards.
    Mr. Card. Well, let me apologize again for the late start. 
I just want to again offer the committee that looking forward 
we have a proposal on the table that we believe we can deliver 
on to resolve this backlog.
    Senator Bunning. Well, if it is as bad as the proposal and 
the process that you have set up to start with, it will not be 
acceptable to this committee, I'll guarantee you that, and you 
will be relieved of duty. And maybe that's what you want, for 
us to move this, as Senator Grassley has suggested and Senator 
Murkowski, from your Department to the Department of Labor, 
where they seem to have had much better success with their 
section of the law.
    Senator Bingaman.
    Senator Bingaman. Mr. Card, let me ask you about this.
    I'll probably sound like a broken record here, but it 
strikes me that you're focused on how you resolve your backlog 
and that's your job. But even if you resolve your backlog, the 
problem is the process that we've set up here merely gets these 
people the right to then go to their State workers' comp 
program. Then you've got an attorney hired by the insurance 
company to defend against any claim that they're making, and 
they may or they may not get compensated. I think the letter 
that Secretary Abraham gave us here, as accompanying this 
proposed legislation, says very clearly, nothing in EEOICPA 
requires a State to be bound by a physicians panel 
determination, and that's clearly the case, nor authorizes DOE 
to participate in State workers' comp proceedings, and that's 
clearly the case.
    So basically we're saying, we're going to spend the next 
umpteen years, 10 years you mentioned, maybe this is a 10-year 
program, trying to resolve the backlog. All that means is we're 
taking these claimants and saying, okay, once you get through 
our complex, difficult process, you have the right to go fight 
it out with a defense attorney in front of a State workers' 
comp board. Isn't that the real problem we've got here? We 
still don't have--there's not a path that gets these people 
compensation in a reasonable period of time the way we've now 
got this thing structured?
    Mr. Card. Well, again, a good characterization, except that 
the right exists already, so this path actually conveys no 
rights whatsoever. It simply conveys technical support for the 
right they already have. Any of these workers could file a 
State workers' comp claim today, no matter where their case is 
in the process.
    Senator Bingaman. So you're saying maybe what we've done 
here is to set up a great big diversionary effort where they're 
all fighting with the Department of Energy and these panels and 
NIOSH, everybody. I guess NIOSH isn't under yours, NIOSH is 
under the Department of Labor.
    Mr. Card. HHS.
    Senator Bingaman. HHS. But I mean the claims that come 
through the radiation part of this chart wind up with NIOSH, 
not with you, not the ones that come through your Department. 
It just strikes me that the proposal that you have given us 
here and that Secretary Abraham has sent up to us for 
legislation is pretty weak soup compared to the size of the 
problem. He is saying three things in his letter. He wants us 
to eliminate the pay cap on physicians. Second, he wants us to 
eliminate the requirement that these physicians work on only a 
temporary or intermittent basis. And third, he wants us to 
eliminate the requirement for agreements between DOE and the 
states and then everything will be fine.
    My strong impression is that we could do all of that this 
afternoon and nothing would be fine, the problem would still be 
enormous and the backlog would still be enormous and the main 
thing is the people that are intended to get some kind of 
financial relief for the injury they suffered would still not 
have that relief. That's the big problem that I see with it. I 
don't know if you have a response. If you do, I'm glad to hear 
it.
    Mr. Card. Sure. Well, I don't think the Secretary's letter 
says everything will be fine, because clearly for some people--
--
    Senator Bingaman. But that is all he's recommending.
    Mr. Card. Well, what that was intended to do is to maximize 
the effectiveness of us prosecuting our statutory duties under 
this law. You very clearly pointed out a possible disconnect 
between many Senators and Congressmen and constituents on 
whether the law is getting the right thing done or not. But we 
believe that with the funding will allow us to deliver what was 
expected in law.
    I do want to point out various estimates which are 
statistically still not significant, but multiple agencies are 
suggesting there are 70 to 80 percent non-contested willing 
payers in the system, and the path we're on right now is to see 
how that works. We've had a claim paid too late, but we have 
one paid and we have many more in the pipeline. But we'd 
certainly respect your differences if you want to short-circuit 
that in some way and come up with another plan.
    Senator Bingaman. Let me understand--can I still ask 
another question here? Under part D, site profiles, form the 
foundation for determining exposures to workers through these 
probably pathways of toxic substances, and those site profiles 
are intended to speed the case processing and determination 
through the physician panels. Has the Department undertaken a 
program to profile the sites covered in the program? And if so, 
could you tell us how many you've covered to date?
    Mr. Card. Well, the term site profile is not clearly 
defined, but for the advocates of that, I would say we have not 
yet engaged in a site profiling program. Our sites have much 
information available, historical information, as to what 
contamination existed in what buildings. We have not yet found 
there to be a cost benefit in our opinion of conducting site 
profiles for the applicants that we're looking at, because it 
would require diversion of substantial resources from the 
problem that we've highlighted here into that activity, and we 
don't want to do that until we're sure that there's going to be 
some payoff in the workers for doing that.
    But we are fortunate through the various--Los Alamos is an 
example--where through the environmental program we have a lot 
of information on the chemicals and other characteristics of 
the facilities. In radiation, the--which is the Department of 
Labor side of this--we had much more rigorous and sophisticated 
information, which enabled the compilation of this, and 
furthermore, that the dose response algorithms are better 
defined for this program, which make the site profiling 
activity both easier and more relevant for the part B than it 
does for part D.
    Senator Bunning. Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman. You can tell 
from my prior questions that I'm very focused, very concerned 
about the willing payer issue. Will the Department of Energy 
provide this committee with a specific legislative proposal to 
resolve the willing payer issue?
    Mr. Card. We're not prepared to offer one at this time.
    Senator Murkowski. When will you be prepared to offer one?
    Mr. Card. Well, at a minimum we think we should see what 
happens with the benefits that were intended through the 
original legislation.
    Senator Murkowski. What does that mean?
    Mr. Card. Well, as I mentioned earlier, we now have a 
pipeline beginning to form of people entering into the workers' 
compensation programs, 70 to 80 percent of them who have a 
willing payer, and it will give us an opportunity to see what 
sort of benefits accrue to that. We just don't think that the 
information is there to jump in front of that at this point in 
time and for us as an agency to decide in the whole global 
scope of benefits to Federal and other works for various 
things, Agent Orange was mentioned, where this should fit in. 
And so we want to let the legislation as it was originally 
conceived take its course till we can gather some data to see 
what happens.
    Senator Murkowski. Isn't it correct though that with our 
Amchitka workers, we do not have a willing payer identified?
    Mr. Card. Right now we do not have one.
    Senator Murkowski. Okay. So our Amchitka workers are not in 
any pipeline that could be considered for completion of their 
claims, is that correct?
    Mr. Card. Not as of today, but I will say that under Mr. 
Kerry's perseverance, we are looking under every rock to 
determine if we can find a tail to willing payers and I think 
we've had some success there. We're not willing to give up on 
anybody, but we do recognize that Alaska and Iowa have 
particular problems, and thus, we empathize with your concern 
over that.
    Senator Murkowski. Well, would you be willing to work with 
my staff and that of any other interested Senator here to 
resolve this? I really don't have any interest in waiting for 
the process to work out and waiting for studies. I think this 
is something that we need to identify as soon as possible in 
those areas that we know are problematic. You may have other 
things in the pipeline that you're working on. Pursue those, 
but in those areas where we know we don't have a willing payer, 
I don't think it's fair to the people that were injured at 
Amchitka, the people that Senator Grassley is concerned about, 
that they should wait while we process people through the other 
pipeline. So I would like to know that we can have the support 
from DOE to work on this issue with you.
    Mr. Card. Well, we will be glad to work with you.
    Senator Murkowski. Thank you.
    Senator Bunning. Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman. Mr. Card, to go 
back to my earlier questions about information, I almost just 
feel like this is a hat trick that my constituents have had to 
go, ``where is information to prove their case,'' and I feel 
this morning I'm getting the same hat trick to a certain 
degree, so I want to make sure I understand where you are from 
a judgment of where the act was written and what changes.
    I see, as Senator Bingaman said this morning, here's your 
legislative proposal, here's what you think needs to be changed 
in this program. So, as the original act stated, there was 
supposed to be a survey and site estimate for dose 
reconstruction. That hasn't been done. I get that it's not 
officially under DOE because it's NIOSH doing that, but they 
have to rely on DOE information. And so you're saying today you 
don't think that is a prudent use of time as it relates to the 
part D of the program, is that correct?
    Mr. Card. Well, again, the dose reconstruction--I apologize 
for the complexity of this--but the dose reconstruction is 
intended for the part B part. We provide information to NIOSH 
to do that. I believe we're current on that information, is 
that right? We also use----
    Senator Cantwell. But they haven't--so you believe that 
they have, NIOSH has complied under the act? You think they're 
in compliance under the act?
    Mr. Card. Well, I don't have--since I haven't analyzed, 
I've had enough on my hands dealing with part D, I haven't 
analyzed part B, but we have no reason to believe that NIOSH 
isn't prosecuting their efforts with all deliberate speed on 
these dose reconstruction----
    Senator Cantwell. NIOSH has not done a dose reconstruction. 
In fact, there was legislation in the 2004 Defense 
authorization telling them to do it again because they hadn't 
done it, and the fact that you don't know they haven't done it, 
I mean, this is the puzzle that these individual cases have to 
have. If they go to their employer and their employer sends 
them records that looks like this, no information available, or 
things that are blank calendars, the fact that the dose 
reconstruction was supposed to be done by NIOSH so that then 
they could find out, well, am I exposed, have I been exposed or 
not, what was going on at that facility at that time, and then 
the fact that you don't even know whether they have completed 
that or not just leaves people without the information to prove 
the case.
    So as Senator Bingaman was saying, it's not about the 
proposals you put on the table today. We're still going to have 
the same mess on our hands because the information isn't 
available.
    Mr. Card. Well, we'd be glad to evaluate your specific 
case. My understanding is the information you have there is 
FOIA information, it's not the information we would normally 
give an applicant to run through the part D process. But again, 
any constituent issue you have, we'd be delighted to step in 
and help on it.
    Senator Cantwell. So your position on dose reconstruction 
is you didn't know that it hadn't been done. Now that you know, 
do you think that it should be done by NIOSH?
    Mr. Card. Well, I would really rather that NIOSH respond to 
that because----
    Senator Cantwell. I'm asking you as somebody who has to 
discharge this program.
    Mr. Card. Okay. Well, let me just say that dose 
reconstruction, and I'm not even sure what the requirement is 
for part B, is a very complex thing. At the site I formerly 
worked at, Rocky Flats, the State of Colorado was funded by DOE 
and it took them more than half a decade to do a dose 
reconstruction for that site. So I think--Bob, do you want to 
explain what in your opinion NIOSH----
    Mr. Carey. The problem is that the dose reconstruction 
really is not connected to the part D program. It's all about 
the part B program. Where there's not a special exposure cohort 
under the part B, as in boy, program that Department of Labor 
runs, then they go to NIOSH to get a dose reconstruction done 
for the part B program and the part B benefit. It has--the only 
part that the Department of Energy plays in this is in 
providing data, backup data to NIOSH in order to be able to 
complete those, and they're reporting that we are timely, 60 
days timely with less than 1 percent of the total number of 
requests and that we are more than meeting their standard for 
providing that data to them.
    Senator Cantwell. So, Mr. Carey, do you believe then that 
the requirements of the act have been fulfilled as it relates 
to site dose reconstruction?
    Mr. Carey. The establishment of the rule by NIOSH is a 
process totally outside of the Department of Energy's purview. 
We have no control over that.
    Senator Cantwell. You're here talking about recommendations 
to change this so that we can have more expedited processing of 
this entire program. One of the big puzzles is, where's the 
information? And so I'm just asking you, you didn't come with 
that recommendation, so I'm just asking you whether you think 
that they have completed that task or not?
    Mr. Carey. I think it would be improper for the Department 
of Energy to comment on whether NIOSH is doing their job or 
not.
    Senator Cantwell. Whether information that they----
    Mr. Carey. We are providing them all the information that 
they request.
    Senator Cantwell. You've made other comments about the 
program that they--that they're involved in, so I don't 
understand why you would not be aware of the fact that one of 
the requirements of the act was to compile information so that 
in the same way as Agent Orange, you could go backward if you 
had to and say, here's what exposure was.
    Mr. Carey. In the part B program.
    Mr. Card. Senator, I apologize for the obvious confusion 
here, but we have no reason to believe that NIOSH is not 
completely fulfilling their statutory responsibilities, and 
their side of the program has been the one that's been praised, 
so frankly we just haven't spent much time evaluating it.
    Senator Cantwell. Well, I'm sure we'll get a chance to ask 
them as well, but thank you for that. Thank you, Mr. Chairman.
    Senator Bunning. Thank you.
    Senator Landrieu.
    Senator Landrieu. Thank you, Mr. Chairman, and I'm glad I 
could step in a for a few minutes. I've had two other hearings 
this morning and I'm sorry I wasn't here at the very outset, 
because the contractor is based in Louisiana and I'm fairly 
familiar with the work of this contractor and they've done good 
work throughout the Government. I'm not familiar with the 
details of this particular contract, only to ask you, Mr. Card, 
that I know there were allegations that the contractors 
processing the claims is what is the primary fault of the 
situation, yet as I look at the outline of the claims process, 
the clear differences between the DOL process and the DOE 
process are very different.
    From your perspective, is it the contractor that's dragging 
their feet on this and not processing the claims quickly 
enough, and why did the Department choose a contractor if you 
didn't think they could do the work less expensively than the 
Government?
    Mr. Card. Well, first of all, the reason to choose a 
contractor is this type of work does not fit into a government 
profile that is neither an inherent government service, and it 
also has a lot of dynamic labor activity in it, which is not 
particularly conducive to a government employment structure, so 
that's why we went to a contractor to staff up on this.
    We all had our growing pains starting in this program, but 
I would say that in general we are satisfied with the 
contractor's performance at this time. As you know, we intend 
to openly compete the expansion of this program when we receive 
this reprogramming. And as I--you may not have been here, 
Senator, but I pointed out that we have done a cost analyst for 
this contractor, at least on a dollars-per-hour basis, which 
doesn't tell everything but is substantive and was the basis of 
the accusations about higher costs. In fact, we believe they're 
lower cost than alternatives available to DOE, including 
Federal workforce.
    Senator Landrieu. Well, I just wanted to add that no matter 
how efficient or not efficient a contractor would be, if the 
underlying program doesn't meet the needs of the injured 
workers, then that's a whole other issue, and I think that we 
should focus along the lines of what Senator Bingaman raised, 
which are the legitimate concerns of members who have thousands 
of workers in their states who have been going for some time 
with legitimate health concerns, and the process that we're 
asking them to go through doesn't really give them any hope of 
relief, either in the short term or midterm and perhaps not 
even in the long term.
    So even if you had, and I'm not in a position to say, and 
I'm not going to get this morning into the details of this 
contract and whether the contractor is doing a good job, but 
the point is, even if they were doing a great job at what they 
were asked to do, if the program itself is cumbersome and 
difficult for people to access the medical records that are 
necessary and to get them help, I think that we really have to 
spend some time on the underlying program.
    I know that there were two programs that were established 
about the same time, one to take care of about 23,000 workers 
and one to take care of about 53,000 potential workers. One 
program under DOL seems to be working well and people are 
compensated about $150,000 for injuries or illnesses that may 
have occurred in the line of work. But DOE has 23--I'm sorry--
is it the opposite, 23,000 workers? One has 52,000 and one has 
23,000, and as the chairman said, only one has been completely 
processed.
    So it would seem to me, and I haven't been able to review 
your proposed legislation since it was just submitted 
yesterday, but regardless of whether the contractor, even if 
they were doing the most superb job they could possibly do, the 
system itself to me seems to be flawed in the sense of trying 
to get help to people who need help in a timely manner, and I 
would just hope that we could focus on the bigger picture, as 
well as looking at if there are any difficulties or failings or 
vulnerabilities with this particular contractor.
    Senator Bunning. Thank you, Senator. Mr. Card, a lot us 
have additional questions, and rather than keep you, we will 
submit them to you for written responses in case something 
comes up. We would like to get to the third panel. We thank you 
for being here and appreciate your testimony.
    Mr. Card. Thank you.
    Senator Bunning. Third panel, Mr. Shelby Hallmark, Dr. John 
Howard, Mr. Robert Robertson. We might as well go right across, 
so Dr. Howard, if you would start us off, we'd appreciate it.

       STATEMENT OF JOHN HOWARD, M.D., M.P.H., DIRECTOR, 
NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH, CENTERS 
                    FOR DISEASE CONTROL AND 
      PREVENTION, DEPARTMENT OF HEALTH AND HUMAN SERVICES

    Dr. Howard. Thank you very much. My name is John Howard and 
I'm the Director of the National Institute for Occupational 
Safety and Health, part of the Centers for Disease Control and 
Prevention within the Department of Health and Human Services. 
I'm joined today by Larry Elliott, Director of the NIOSH Office 
of Compensation Analysis and Support.
    I'm pleased to come to you today to update you on HHS 
activities under the act. We've been charged with support of 
four activities for the Department of Labor and one activity 
for the Department of Energy. First, the President charged HHS 
with administering a new Federal advisory committee, the 
Advisory Board on Radiation and Worker Health, to advise HHS on 
its activities under part B of the act.
    The Board has been exceptionally active, having met a total 
of 22 times since the beginning of 2002. The Board has advised 
HHS on all of our rulemakings, and has begun the process of 
reviewing the validity and the quality of the NIOSH dose 
reconstruction program.
    Second, HHS was charged with promulgating two regulations 
required under the act. One regulation established methods for 
conducting radiation dose reconstructions for cancer claimants, 
and a second regulation established guidelines by which DOL 
would determine which cancer--whether the cancer of an employee 
was, quote, ``at least as likely as not,'' related to radiation 
doses estimated for that employee through dose reconstruction. 
We promulgated both regulations in final form in May 2002.
    Third, the responsibility of HHS delegated to NIOSH was the 
development and administration of the dose reconstruction 
program to serve cancer claimants under the act. Dose 
reconstruction is a science-based process for retrospectively 
estimating the amounts and types of radiation doses incurred by 
a person. Since dose reconstructions for a compensation program 
are very different from those used in radiation research, NIOSH 
developed methods of dose reconstruction that build upon 
established approaches and principles of this discipline, but 
are tailored to the unique aspects of a compensation program.
    Dose reconstruction is the largest task assigned to HHS, 
and required building both an internal and an external 
capacity. As of March 19, 2004, NIOSH has completed just over 
2,000 dose reconstructions and sent them back to DOL to make a 
final decision on the claim. And even though we have a 
substantial backlog of dose reconstructions to complete, 
largely because we had to begin accepting dose reconstruction 
requests in 2001, long before we had the structure or capacity 
to complete any of our reconstructions, we are at this point 
steadily increasing our capacity to complete the dose 
reconstructions we have been sent by DOL.
    Much of our program development is completed, and the rate 
of production of dose reconstructions is increasing. While it 
took NIOSH 26 months from when we received our first referral 
from DOL to complete the first 1,000 dose reconstructions, 
NIOSH completed the second 1,000 dose reconstructions in less 
than 4 months, and I'm hopeful that we can even speed up the 
process faster.
    The fourth responsibility of HHS under part B of the act is 
directly related to the dose reconstruction program and 
involves making additions to the special exposure cohort 
established by the act. The act provides members of the cohort 
with a different claims adjudication procedure than that 
applied to most cancer claimants. Claims for members of the 
cohort who have 22--any of 22 specified cancer designated by 
the act do not require dose reconstructions, nor do they 
require a determination by DOL of the probability of causation.
    Congress included in the cohort, as we've heard, certain 
employees of three DOE facilities and one nuclear weapons test 
site. Importantly, Congress gave the President and delegated to 
the Secretary of HHS the authority to designate other classes 
of employees to be members of that same cohort, subject to 
congressional review, provided that for each class it is not 
feasible to estimate with sufficient accuracy the radiation 
dose that that class received, and two, that there's a 
reasonable likelihood that such radiation dose may have 
endangered the health of members of the class.
    This authority allows HHS to designate classes of employees 
for addition to the cohort in situations in which a class of 
employees had potential radiation exposure, but the available 
records and data are insufficient for NIOSH to complete dose 
reconstructions.
    The final regulation which takes into account all of the 
public comments made since our first noticed of proposed 
rulemaking was issued in June 2002 and a second notice issued 
in March 2003 is being developed by HHS, is undergoing final 
review, and is expected very soon. Once the cohort regulation 
is promulgated, HHS will solicit and begin considering 
petitions by classes of employees to become members of that 
cohort.
    Fifth, HHS also has a small but important role under part D 
of the act, which requires DOE to establish, as we've heard, a 
program assistance to certain employees of DOE contractors in 
state worker compensation proceedings. HHS' role in this is 
responsibility for appointing the physicians who serve on the 
DOE physician panels. HHS has made several rounds of 
appointments to date, has selected a total of 215 physicians to 
serve on these panels, of which 167 have been referred to DOE. 
In response to DOE concerns that the number of physicians has 
been insufficient to address the DOE caseload in a timely 
fashion, HHS has recently expanded our criteria for identifying 
qualified physicians and is focusing on the recruitment of 
physicians who are making a transition from full clinical 
practice to retirement, or who have recently retired and are 
willing to undertake this important non-clinical work. HHS is 
committed to recruiting as many physicians as possible and 
necessary to serve on DOE's physician panels.
    In closing, Mr. Chairman, I'll just say that HHS and NIOSH 
are working intensively to meet our responsibilities under the 
act, which we take very seriously. The major tasks are 
difficult because they employ dose reconstruction expertise and 
systems on an unprecedented production scale.
    We keenly are aware that nuclear weapons workers and their 
families, as has been stated this morning, are relying on us to 
accomplish this work as quickly as possible, and we understand 
that saying that we are doing our best is not good enough from 
the perspective of our claimants, some of whom are dying of 
cancer, who have lost a spouse, parent, or sibling. So as we 
proceed, we are hopeful that our dose reconstructions are 
timely as possible, that they're fair, and that they're 
grounded on the best available science.
    Thank you very much, Mr. Chairman, for the opportunity to 
make a statement. I'd be happy to answer questions.
    [The prepared statement of Dr. Howard follows:]

  Prepared Statement of John Howard, M.D., M.P.H., Director, National 
   Institute for Occupational Safety and Health, Centers for Disease 
    Control and Prevention, Department of Health and Human Services

                              INTRODUCTION

    Mr. Chairman, and members of the Committee, my name is John Howard 
and I am the Director of the National Institute for Occupational Safety 
and Health (NIOSH), part of the Centers for Disease Control and 
Prevention (CDC) within the Department of Health and Human Services 
(HHS). I am joined today by Mr. Larry Elliott, Director of the NIOSH 
Office of Compensation Analysis and Support.
    CDC's mission is to promote health and quality of life by 
preventing and controlling disease, injury and disability. NIOSH is a 
research institute within CDC that is responsible for conducting 
research and making recommendations to identify and prevent work-
related illness and injury. Within this mission, NIOSH is the lead 
federal agency for research on the occupational health of U.S. workers, 
including nuclear weapons workers.
    I am pleased to appear before you today to update you on HHS 
activities under the Energy Employees Occupational Illness Compensation 
Program Act (``the Act''). Under the Act, HHS, with the assistance of 
NIOSH, is charged with conducting a variety of compensation-related 
activities important to nuclear weapons workers and their families. My 
testimony today will focus on the set of activities we conduct to 
support the Department of Labor (DOL), which administers the federal 
compensation program under ``Part B'' of the Act. I will also briefly 
summarize other HHS activities under Part D and a separate provision of 
law relating to residual contamination.
    Under Executive Order 13179, issued on December 7, 2000, the 
President charged HHS with five specific responsibilities related to 
Part B. I will briefly describe each of these five activities and 
summarize its progress.

             ADVISORY BOARD ON RADIATION AND WORKER HEALTH

    First, the President charged HHS with administering a new federal 
advisory committee, the ``Advisory Board on Radiation and Worker 
Health,'' to advise HHS on its activities under Part B. I will note the 
specific advisory roles and contributions of the Board in context 
throughout this testimony.
    HHS nominated and the President appointed the initial members of 
the Board in 2001. The Board is chaired by Dr. Paul Ziemer, an 
internationally recognized health physicist, and includes 11 members, 
who are scientists, physicians, or representatives of nuclear weapons 
workers, a membership which reflects the Act's requirement that the 
Board include a balance of scientific, medical, and worker 
perspectives.
    The Board held its first meeting in January of 2002. The Board has 
been exceptionally active, having met a total of 22 times in the first 
26 months since the beginning of 2002. The board has advised HHS on all 
of our rulemakings and has begun the process of reviewing the validity 
and quality of the NIOSH dose reconstruction program.

        REGULATION FOR DOSE RECONSTRUCTIONS AND CANCER CAUSATION

    Second, HHS was charged with promulgating two regulations required 
under the Act. One regulation established methods for conducting 
radiation ``dose reconstructions'' for cancer claimants.\1\ Dose 
reconstruction is a science-based process for retrospectively 
estimating the amounts and types of radiation doses incurred by a 
person. Since dose reconstructions for a compensation program are very 
different from those used in research, HHS developed methods of dose 
reconstruction that build upon established approaches and principles of 
this discipline but are tailored to the unique purposes and needs of 
the Act, particularly striking a balance between the needs for accuracy 
and efficiency in a compensation program. This effort included 
substantial scientific work on the part of NIOSH to develop specialized 
analytical methods and tools needed to estimate the occupational 
radiation doses of nuclear weapons workers.
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    \1\ 42 CFR part 82
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    The Act required a second regulation to establish guidelines by 
which DOL would determine whether the cancer of an employee was ``at 
least as likely as not'' related to the radiation doses estimated for 
that employee through a dose reconstruction.\2\ This regulation for 
determining ``probability of causation'' (the probability that a 
person's cancer was caused by radiation) required the further 
development of a scientific tool for calculating probability of 
causation. This tool, the ``Interactive Radio Epidemiological 
Program,'' or ``IREP,'' is a complex computer program that uses ``risk 
models'' for associating radiation doses with risk information on 
different cancers. This tool estimates the probability of disease 
causation specific to each employee's unique history of exposures to 
different types and quantities of radiation during the course of his or 
her employment. The final development of this tool was undertaken by 
NIOSH in collaboration with the National Cancer Institute, which had 
created the initial version of this tool in the 1980s and was in the 
process of updating it as a result of an extensive scientific review by 
the National Research Council.
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    \2\ 42 CFR part 81
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    HHS promulgated both regulations in final form in May 2002, after 
issuing a notice of proposed rulemaking for the probability of 
causation regulation and an interim final rule for the dose 
reconstruction regulation in October of 2001 and obtaining and 
considering public comments. The Board also reviewed and advised HHS on 
both these rules during the public comment period and supported the 
final rules. The rules are based on the best available scientific 
evidence and have widely employed a policy to ensure that important 
limitations of science and available data are handled in ways that do 
not penalize the claimant. The rules are designed with efficiencies 
necessary to serve the high claims case load expected then and 
experienced now. The rules also are designed in recognition of the fact 
that science is always improving. Hence, the rules allow for new 
scientific findings and consensus to be integrated into dose 
reconstruction methods and probability of causation determinations as 
they become available, after proper scientific consideration.

                      DOSE RECONSTRUCTION PROGRAM

    The third responsibility of HHS, delegated to NIOSH, is the 
development and administration of a program of dose reconstruction to 
serve cancer claimants under the Act. This is the largest task assigned 
to HHS and required building a large internal and external capacity. 
The production scale and scientific complexity of the dose 
reconstruction program required by the Act are significant compared to 
other federal compensation programs requiring dose reconstructions.
    I will report on the progress of this dose reconstruction program 
in two parts. First, I will outline the major milestones in the 
development of the program and the activities that remain to be 
completed. Second, I will report on the current status of dose 
reconstructions, both completed and underway.
    Program Development Milestones. NIOSH began developing this dose 
reconstruction program in the summer of 2001. We have accomplished the 
following milestones:

June - December 2001

   Recruited an initial group of scientists and support staff
   Acquired a temporary facility to house program staff
   Published interim final dose reconstruction regulation
   Published notice of proposed rulemaking for probability of 
        causation regulation
   Established claimant interview procedure
   Developed the principal scientific tools and procedures
   Developed the records and data management systems to handle 
        the high volume of claims and DOE data and to track and manage 
        dose reconstructions

2002

   Expanded internal staff
   Published final dose reconstruction and probability of 
        causation regulations
   Published Notice of Proposed Rulemaking for Procedures for 
        Adding Classes of Employees to the Special Exposure Cohort
   Developed implementation guides for performing dose 
        reconstructions
   Tested tools and procedures using initial dose 
        reconstructions
   Awarded a contract to build dose reconstruction capacity 
        externally, employing health physicists throughout the U.S.
   Established contractor-related procedures and trained 
        contractor staff Expanded the records and data management 
        systems
   Began locating and obtaining facility-specific data from DOE 
        and other sources
   Assisted DOE in establishing DOE's record retrieval systems 
        and related inter-agency policies

2003

   Established a Memorandum of Understanding to formalize 
        coordination between HHS and DOE
   Published Second Notice of Proposed Rulemaking for 
        Procedures for Adding Classes of Employees to the Special 
        Exposure Cohort
   Continued expanding internal and contractor staff and 
        developing technical procedures
   Initiated the development of 15 site profiles and completed 
        5 site profiles

2004

   Continuing refining technical procedures for increased 
        efficiency in production of dose reconstructions
   Continuing the development and completion of site profiles
   Close to completing a Final Rule for Procedures for Adding 
        Classes of Employees to the Special Exposure Cohort

    There are several important points to note about the development of 
this program. First, while NIOSH has some of the leading expertise in 
conducting dose reconstructions for scientific purposes, the practical 
challenges of conducting dose reconstructions for a compensation 
program involving a high volume of cases are new to us. One key example 
is the need for site profiles.
    A site profile is a compilation of basic information about 
radiation monitoring practices and radiation exposures at a facility 
over time. At the outset of developing the dose reconstruction program, 
NIOSH expected to conduct dose reconstructions in tandem with 
developing site profiles. By doing both at once, we thought we could 
complete a substantial number of dose reconstructions to limit the 
accrual of a backlog. We learned, however, that to be able to complete 
dose reconstructions for a compensation program with a high volume of 
cases we had to complete initial versions of the site profiles first. 
It is prohibitively inefficient to collect the general site-related 
information used in dose reconstruction on a case-by-case basis.
    We have faced a number of logistical challenges in establishing the 
dose reconstruction program. The demands have been exceptional for 
developing unique computerized data systems, for recruiting and 
training a nationally dispersed workforce of experts and diverse 
professionals, for establishing operational procedures sufficient to 
guide a dispersed workforce, and for establishing effective 
communications within our dose reconstruction workforce and with the 
claimant population.
    A second point concerning the development of this program is that 
the Department of Energy (DOE) has had to develop systems for 
identifying and retrieving records requested for individual cases. 
While DOE has extensive employee and site records, which are of great 
value for dose reconstructions, DOE did not have sufficient 
infrastructure to identify and produce relevant records on the scale 
required for NIOSH to conduct dose reconstructions under the Act. In 
2003, DOE improved this capacity substantially. Almost all DOE sites 
are efficiently providing complete responses to NIOSH requests and DOE 
continues to improve this performance.
    Finally, as we go forward, the Advisory Board will have an 
important role in advising NIOSH concerning the further development of 
the dose reconstruction program. The Board is charged under the Act 
with reviewing and advising NIOSH on the scientific validity and 
quality of the dose reconstruction program. This will include an 
independent review of a random sample of completed NIOSH dose 
reconstructions. The Board, with administrative assistance from NIOSH, 
has contracted for independent scientific support and has initiated its 
review, including the review of selected site profiles and related 
technical procedures.
    Status of Dose Reconstructions. In most cases, a cancer claimant 
must obtain a dose reconstruction from NIOSH after the Department of 
Labor verifies that his or her claim is for a covered employee with 
cancer. DOL uses the results of this dose reconstruction and the HHS 
guidelines for probability of causation to determine whether the cancer 
of the employee was at least as likely as not to have been related to 
his or her exposure to radiation in the performance of duty.
    Health physicists conduct dose reconstructions using radiation 
monitoring data, when it is available, as well as information on the 
radiation monitoring practices, the radiation sources to which a person 
was exposed, and the processes and environment through which the 
exposures occurred. NIOSH obtains the information from DOE, the 
claimants, and other sources. The process of conducting a dose 
reconstruction is completed in 11 steps, as follows:

   Upon receiving a claim from DOL, NIOSH creates a case file, 
        notifies the claimant(s), and requests personal exposure data 
        from DOE or other sources, as appropriate.
   NIOSH receives and reviews personal exposure data from DOE 
        or other sources.
   NIOSH requests additional personal exposure data from DOE or 
        other sources, as necessary.
   NIOSH interviews the claimant(s) and coworkers to evaluate 
        the completeness, quality, and adequacy of the DOE data.
   The claimant(s) and co-workers review their interview 
        summaries and correct or supplement them, as necessary.
   NIOSH assigns a health physicist to conduct the dose 
        reconstruction, using personal and site-specific data from the 
        site profile and other sources.
   NIOSH requests additional data from DOE or other sources, as 
        necessary, based on informational needs identified by the 
        health physicist. NIOSH submits a draft dose reconstruction 
        report to the claimant(s) for review.
   NIOSH conducts a close-out interview with the claimant(s) to 
        explain the dose reconstruction and to obtain any additional 
        information from the claimant. NIOSH revises the draft dose 
        reconstruction report and resubmits it to the claimant(s), when 
        the claimant(s) provides additional information.
   The claimant(s) signs a form closing the record, which 
        allows NIOSH to complete the dose reconstruction.
   NIOSH transmits the final dose reconstruction report to the 
        claimant(s) and to DOL.

    As of March 19, 2004, NIOSH has completed more than 2000 dose 
reconstructions and sent them back to DOL to make a final decision on 
the claim. Since October 2001, NIOSH has received approximately 15,000 
cases from DOL requiring dose reconstructions. We currently have 
approximately 13,000 active cases requiring dose reconstruction. 
According to the process outlined above, we have obtained initial data 
from DOE and other sources for 10,000 of these 13,000 cases. We have 
completed dose reconstruction interviews of claimants and co-workers 
for 8,000 of these cases. We have assigned more than 5,000 of these 
cases to health physicists to conduct the dose reconstructions, usually 
after the completion of site profiles related to the cases. And we 
currently have drafted more than 300 draft dose reconstruction reports 
that are being reviewed by claimants, who have up to 60 days for this 
review.
    As this summary indicates, we have a substantial backlog of dose 
reconstructions to complete. This backlog arose because we had to begin 
accepting dose reconstruction requests in 2001, long before we had the 
structure or capacity to complete any dose reconstructions.
    At this point, we steadily are increasing our capacity to complete 
dose reconstruction. Much of our program development is completed, as I 
described earlier in this testimony. The following chart shows our 
progress in producing completed dose reconstructions. Further, our rate 
of production is increasing. While it took NIOSH 26 months from when we 
received our first referral from DOL to complete the first 1000 dose 
reconstructions, NIOSH completed the second 1000 dose reconstructions 
in less than 4 months. I am hopeful that the next 1000 dose 
reconstructions will be completed in even less time.*
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    * All charts have been retained in committee files.
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    The March data in this chart cover activity through March 19th of 
this year.
    While our capacity is increasing, the chart below shows that the 
number of new cases requiring dose reconstructions has been decreasing 
since the fourth quarter of Fiscal Year 2002. This declining number of 
new cases also will help us reduce the backlog of cases in 2004.

                        SPECIAL EXPOSURE COHORT

    The fourth and fifth responsibilities of HHS under Part B of the 
Act are directly related to the dose reconstruction program. They 
concern making additions to the ``Special Exposure Cohort'' (``the 
Cohort'') established by the Act.
    The Act provides members of the Cohort with a different claims 
adjudication procedure than that applied to most cancer claimants. 
Claims for members of the Cohort who have any of 22 ``specified 
cancers'' \3\ designated by the Act do not require dose 
reconstructions, nor do they require a determination by DOL of 
probability of causation.
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    \3\ 20 C.F.R. 30.5(dd).
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    Congress included in the Cohort certain employees of three DOE 
facilities, known as the gaseous diffusion plants, as well as employees 
of a nuclear weapons test site in Amchitka, Alaska. In addition, 
Congress gave the President (delegated to the Secretary of HHS) the 
authority to designate other classes of employees to be members of the 
Cohort, subject to Congressional review, provided that each class of 
employees meets two tests:

    (1) it is not feasible to estimate with sufficient accuracy the 
radiation dose that the class received; and
    (2) there is a reasonable likelihood that such radiation dose may 
have endangered the health of members of the class.

    This authority allows HHS to designate classes of employees for 
addition to the Cohort in situations in which a class of employees had 
potential radiation exposure but the available records and data are 
insufficient for NIOSH to complete dose reconstructions.
    HHS is in the final stage of promulgating a final regulation that 
will set out procedures by which classes of employees can petition HHS 
for addition to the Cohort, and by which HHS will consider such 
petitions. HHS issued an initial Notice of Proposed Rulemaking (NPRM) 
for the Cohort petition process in June 2002. In response to public 
comments, NIOSH made substantial changes to the proposal and issued a 
second NPRM in March of 2003. The final regulation, which takes into 
account all of the public comments, is being developed by HHS, is 
undergoing final review and is expected to be released soon.
    Once the Cohort regulation is promulgated, HHS will solicit and 
begin considering petitions by classes of employees. The process of 
considering petitions will involve the review of such petitions by 
NIOSH and by the Board, which will advise HHS on each petition. Some of 
the technical aspects of the NIOSH review will be similar to those of 
dose reconstructions, since a principal question that must be addressed 
is the feasibility of conducting dose reconstructions for members of 
the petitioning class. The final step in the petition process, as 
required by the Act, will be an opportunity for Congress to review each 
designation by the Secretary of HHS of classes of employees to be added 
to the Cohort. The decisions to add a class to the Cohort become 
effective in 180 days, unless Congress provides otherwise.

                           PART D OF THE ACT

    HHS also has a small but important role under Part D of the Act, 
which requires DOE to establish a program of assistance to certain 
employees of DOE contractors in state workers' compensation 
proceedings. DOE operates a set of physician panels that evaluate the 
relationship between an illness of a DOE employee and exposure to toxic 
substances in a DOE facility. When the findings of such evaluations 
affirm a work-related illness, meeting criteria specified by DOE in 
regulations, then DOE has procedures for assisting the employee in 
pursuing a state workers' compensation claim.
    HHS is responsible for appointing the physicians who serve on the 
DOE physician panels and has made several rounds of appointments to 
date. HHS has selected a total of 215 physicians.to serve on these 
panels, of which 167 have been referred to DOE. In response to DOE 
concerns that the number of physicians has been insufficient to address 
the DOE caseload in a timely fashion, HHS has recently expanded its 
criteria for identifying qualified physicians and is focusing on the 
recruitment of physicians who are making a transition from a full 
clinical practice to retirement or who have recently retired and are 
willing to undertake this non-clinical work. We are committed to 
recruiting as many physicians as possible to serve on DOE's physician 
panels.

                         RESIDUAL CONTAMINATION

    Finally, pursuant to Public Law 107-107, NIOSH was responsible for 
conducting a residual contamination study. The study, conducted by 
NIOSH, evaluated whether significant residual contamination remained at 
atomic weapons employer or beryllium vendor facilities after such 
facilities had concluded work for DOE or its predecessor agencies.
    NIOSH submitted a final report on this study to Congress in 
November 2003. The study evaluated 219 AWE facilities and 72 beryllium 
vendor facilities. It found insufficient information to make a 
determination for 34 AWE facilities and 12 beryllium vendor facilities. 
Among facilities that could be evaluated, the study found that Atomic 
Weapons Employer sites were almost equally divided between those that 
had and did not have potential for significant residual contamination 
outside of the periods in which weapons-related production occurred (96 
and 89 facilities, respectively). On the other hand, most of the 
beryllium vendor facilities (57) continue to have potential for 
significant residual contamination.
    We regret the mistake recently identified in part of the report. 
The report wrongly stated that there was a potential for significant 
residual contamination at the Bethlehem Steel site in New York beyond 
the period when weapons related work was completed at the site. 
Documentation reviewed indicates that there is little potential for 
significant residual contamination outside of the period in which 
weapons-related production occurred. We are working to release an 
updated report as quickly as possible with this corrected information.

                               CONCLUSION

    In conclusion, HHS and NIOSH are working intensively to meet our 
responsibilities under the Act. The major tasks are difficult because 
they employ dose reconstruction expertise and systems on an 
unprecedented scale. We remain keenly aware, however, that nuclear 
weapons workers and their families are relying on us to accomplish this 
work as quickly as possible. We understand that ``doing the best we 
can'' is not good enough from the perspective of our claimants, some of 
whom are dying of cancer or have lost a spouse, parent or sibling to 
cancer. As we proceed, we will continue to strive to produce dose 
reconstructions that are as timely as possible, that are fair, and that 
are grounded in the best available science.
    Thank you for this opportunity to provide an update on the status 
of HHS activities under the Act. Mr. Elliott and I would be pleased to 
respond to any questions of the Subcommittee.

    Senator Bunning. Mr. Hallmark.

  STATEMENT OF SHELBY HALLMARK, DIRECTOR, OFFICE OF WORKERS' 
           COMPENSATION PROGRAMS, DEPARTMENT OF LABOR

    Mr. Hallmark. Thank you, sir. Mr. Chairman and members of 
the committee, my name is Shelby Hallmark. I'm the Director of 
the Office of Workers' Compensation Programs at the Department 
of Labor. I'm pleased to appear before the committee today to 
discuss EEOICPA, as we call it. We're proud of our role in 
implementing the act along with the other responsible 
departments.
    As you know, DOL was assigned the lead role for part B and 
for getting it up and running in July 2001. We met that 
challenge, and since then, we have processed 95 percent of the 
52,000 claims received and issued, as has been indicated, over 
$800 million in benefits and medical benefits. Labor is 
committed to holding ourselves accountable for achieving 
measurable results, and we have done so with part B. With a 
starting backlog of 30,000 cases, we fell short of our 
timeliness goals in the first full year, 2002, but we cleared 
the backlog and met all of our timeliness goals last year and 
have achieved further improvements in 2004.
    For example, the average time for an initial decision has 
been reduced from 98 to 73 days for a DOE prime contractor 
employee, and from 123 to 99 days for all other cases.
    These very positive results were achieved through the hard 
work of our staff and in close coordination with HHS and DOE. 
For example, DOE has reduced the average time for its 
employment verification from 90 days to 45 days during the past 
year.
    We've also focused on making quality decisions and on clear 
communications to our customers and stakeholders. No workers' 
compensation program is without conflict, but the level of 
appeals so far indicates that our program decisions do have 
credibility. Having reached what we would call steady state in 
part B processing, we are geared up now to handle the thousands 
of cases that will be coming back to us from NIOSH with dose 
reconstructions in the coming months.
    We've issued approximately 1,700 recommended decisions so 
far on those cases, averaging 5 days from date of receipt to 
complete that work. We are prepared now for there to be more 
appeals and perhaps litigation as a result of these claims 
flowing through the system because they are more complex, 
subject to factual dispute, and have a lower approval rate.
    Another challenge for us in the coming year will be to 
intensify our outreach efforts. This will mean many more of our 
traveling resource centers that we have conducted around the 
country to reach out to possible beneficiaries and we are also 
going to be branching out and contacting pension funds, unions, 
and other entities that can spread the word to people who no 
longer live close to the DOE facilities.
    On dose reconstruction, we've noted that the intricate 
process of dose reconstruction has taken a long time to come to 
fruition, but it's now yielding results, as Dr. Howard 
mentioned. They've returned over 2,000 cases to us and we've 
made favorable recommended decisions on nearly 500 of those 
cases already. We expect that to accelerate as the 5,000-plus 
cases that are in their pipeline now flow through and with the 
completion of their site profiles.
    We're encouraged by NIOSH's increased productivity, by the 
claimant-friendly of the dose reconstruction process as they've 
implemented it, and by the quality and balance of the 
reconstructions produced. We think this is state-of-the-art in 
identifying which specific cancers should reasonably be 
attributed to radiation exposure. Building it has obviously 
taken longer than we anticipated, but it is scientifically 
based and represents the most consistent, objective and 
understandable methodology available.
    Regarding part D, we have provided assistance to DOE in the 
past and we will step up that effort starting next month. 
Senior staff from DOL will be working with DOE to prioritize 
many of the ideas for improvement. They've received, and we 
will help build them--with them build procedures and other 
guidelines to carry that out.
    Roughly 95 percent of the claims that are filed go both 
ways, are both part D and part B, and that allows for some 
synergies in savings for DOE taking advantage of case 
development that's already been done on our side. For thousands 
of those dual cases, using part B materials can expedite part D 
case processing and also streamline the panel's review of the 
case.
    Mr. Chairman, you asked that we address ideas for improving 
the act. I first would like to say that our experience with 
other compensation programs suggests that any substantial 
change to eligibility provisions should be approached with 
extreme caution. The history of our black lung program is an 
object lesson. Alterations in the standards of proof, 
eligibility, and coverage over time resulted in what I would 
call a crazy quilt of case law, and made it very difficult to 
explain to the target population while outcomes vary over time 
and for different individuals.
    We urge that Congress consider such long-term ramifications 
when reviewing remedies to address the current problems. 
Specifically regarding part D, we support DOE's proposed 
legislation to remove certain administrative obstacles and we 
support DOE's request for reprogramming.
    We believe part B is operating fully and effectively now, 
but some clarification of the statutes may be in order, 
specifically regarding the precise definition of a covered DOE 
facility to ensure that the program remains directed toward the 
population Congress intended to help. The administration is 
currently reviewing this issue and will present legislation 
shortly.
    I'd be pleased to answer any questions.
    [The prepared statement of Mr. Hallmark follows:]

  Prepared Statement of Shelby Hallmark, Director, Office of Workers' 
               Compensation Programs, Department of Labor

    Mr. Chairman, and Members of the Committee, my name is Shelby 
Hallmark. I am the Director of the Office of Workers' Compensation 
Programs (OWCP), a component of the Employment Standards Administration 
(ESA), Department of Labor (DOL).
    I am pleased to have an opportunity to appear before the Committee 
today to discuss the Energy Employees Occupational Illness Compensation 
Program Act (EEOICPA). While we are proud of the progress DOL has made 
in implementing Part B of the Act, EEOICPA has been and continues to be 
an interdepartmental activity, requiring the closely coordinated effort 
of the Departments of Energy (DOE), Health and Human Services (HHS), 
Justice (DOJ), as well as Labor.
    Under Executive Order 13179, DOL was assigned primary 
responsibility for administering and adjudicating claims for 
compensation for cancer caused by radiation, beryllium disease and 
certain other conditions under Part B of the Act, and for ensuring that 
the program was up and running by July 31, 2001. Since funding for the 
new program was not received until January 2001, DOL faced a major 
initial challenge just to meet the congressionally mandated start date. 
We succeeded in issuing interim final regulations in May of that year 
and established a fully functioning program on schedule. Secretary Chao 
presented the first EEOICPA check on August 9, 2001. Since then, DOL 
has taken in over 52,000 claims (covering 39,500 cases), conducted 
nearly 600 public meetings to inform potential claimants of the program 
and help them file claims, established, in partnership with DOE, 11 
full-time resource centers near major DOE facilities to service the 
regions where most potential claimants reside, established four DOL 
district offices and the infrastructure to support them, issued final 
decisions in nearly 22,000 cases, referred almost 16,000 cases to HHS 
for dose reconstruction, and awarded over $800 million in compensation 
and medical benefits.

                            EEOICPA OVERVIEW

    Employees who worked for DOE, one of its contractors or 
subcontractors at a DOE facility, or at a facility operated by a 
private company designated as an Atomic Weapons Employer (AWE) or a 
beryllium vendor, may be eligible for a lump-sum award and future 
medical benefits under Part B of the Act. Survivors of these workers 
may also be eligible for benefits.
    Part D of the Act established a system under which employees whose 
occupational diseases are found by a panel of independent physicians 
appointed by HHS to have been connected to work-related exposure to 
toxic substance receive assistance from DOE in obtaining state workers' 
compensation benefits. While DOL has no direct role in Part D, we have 
worked cooperatively with DOE on Part D implementation in developing 
processes and procedures and through the sharing of case files where 
claims have been filed under both Parts. In April, a DOL team of senior 
policy and procedural workers' compensation experts will be working 
with DOE to help evaluate and prioritize recommendations for improving 
Part D processing. This group will also assist in implementing 
improvements by developing necessary policy, procedures, and training 
materials for DOE consideration.
    Under Part B of the EEOICPA, DOL determines eligibility for 
compensation and medical expenses for those conditions covered by Part 
B of the Act. DOE provides employment verification to DOL relevant to 
claims under Part B, provides worker exposure information to HHS for 
its use in dose reconstructions for covered workers, and designates 
private companies as atomic weapons employers and additional beryllium 
vendors. Since the inception of the program, DOE and DOL have jointly 
operated the resource centers located near the major nuclear weapons 
sites to provide assistance to potential claimants and others who need 
information about EEOICPA.
    HHS establishes procedures for estimating radiation doses, develops 
guidelines for DOL to determine the probability that a cancer was 
caused by the exposure to radiation, estimates radiation doses (dose 
reconstruction), determines additions to the Special Exposure Cohort, 
and provides support for the Advisory Board established by the Act. And 
finally, the Department of Justice notifies uranium workers eligible 
for benefits under the Radiation Exposure Compensation Act (RECA) that 
they may also receive compensation from the Department of Labor, and 
provides DOL with documentation concerning those claims.

             PART B ELIGIBILITY REQUIREMENTS AND PROCESSES

    Several requirements must be met for a claimant to be eligible for 
compensation under the EEOICPA. For a worker (or eligible survivor) to 
qualify for benefits under Part B, the employee must have worked at a 
covered DOE, Atomic Weapons Employer, or beryllium vendor facility 
during a covered time period and developed one of the specified 
illnesses as a result of their exposure to radiation, beryllium or 
silica. Covered medical conditions include radiation-induced cancer, 
beryllium disease, or chronic silicosis (chronic silicosis is only 
covered for individuals who worked in nuclear test tunnels in Nevada 
and Alaska). Covered workers receive a one-time lump-sum payment of 
$150,000 as well as future medical treatment for the covered condition 
(medical services and evaluations only for beryllium sensitivity). The 
EEOICPA also provides compensation in the amount of $50,000 to 
individuals (or their eligible survivors) awarded benefits by the DOJ 
under Section 5 of the RECA.
    When a Part B claim is filed, it is assigned to one of our four 
District Offices--Jacksonville, FL; Cleveland, OH; Denver, CO; or 
Seattle, WA--based on the geographical location of the covered worker's 
last employment. A claims examiner will review the documentation and 
determine if the criteria established by the Act for covered employment 
and covered illness are met. The claims examiner will work with the 
claimant, DOE and/or the private employer or employers involved to 
develop the case file as completely as possible.
    There are several different types of claims under Part B of the 
Act, which require different processing steps. Claims for the $50,000 
RECA supplement are the least complex, involving verification via the 
Department of Justice that a RECA award has been made, and 
documentation of the identity of the claimant (including survivor 
relationship issues). For claims involving beryllium disease, 
silicosis, or a ``specified cancer'' for workers at a Special Exposure 
Cohort (SEC) facility, the employment and illness documentation is 
evaluated in accordance with the criteria in the EEOICPA. The DOL 
district office will then issue a recommended decision to the claimant. 
The claimant may agree with the recommended decision, or may object and 
request either a review of the written record or an oral hearing (the 
latter will normally be held at a location near the claimant's 
residence). In either case, the Final Adjudication Branch (a separate 
entity within the DOL's Office of Workers' Compensation Programs) will 
review the entire record, including the recommended decision and any 
evidence/testimony submitted by the claimant and will issue a final 
decision, either awarding or denying benefits (or the Branch may remand 
to the district office if further development of the case is 
necessary). A Final Decision could then be appealed to the U.S. 
District Courts.

                     SPECIAL EXPOSURE COHORT CASES

    DOL can move directly to a decision on cases involving a 
``specified cancer'' at a Special Exposure Cohort facility because the 
Act provided a presumption that any of the twenty-two listed cancers 
incurred by an SEC worker was caused by radiation exposure at the SEC 
facility. DOL had received 6,147 cancer cases involving workers at the 
current SEC facilities as of March 18, 2004. Of these cases, 2,849 have 
been awarded $427 million in compensation. Another 2,181 cases either 
have been found not to meet the employment duration requirement or, 
more frequently, involve cancers other than the twenty-two specified 
cancers in the Act. In the latter circumstance, the case will be 
referred to HHS for a dose reconstruction so that DOL can determine 
whether to award benefits based upon the probability that radiation 
caused the cancer. About 40 percent of the cancer claims from SEC sites 
involve non-specified cancers and hence require a dose reconstruction.

                       DOSE RECONSTRUCTION CASES

    For cases involving a claimed cancer not covered by the SEC 
provisions (that is, either a cancer incurred at a non-SEC facility, a 
cancer incurred at an SEC facility that is not one of the specified 
cancers listed in the Act, or an employee who did not have sufficient 
employment duration to qualify for the SEC), there is an intervening 
step in the process to determine causation, called ``dose 
reconstruction.'' In these instances, once DOL determines a worker was 
a covered employee and that he or she had a diagnosis of cancer, the 
case is referred to the National Institute for Occupational Safety and 
Health (NIOSH) so that the individual's radiation dose--the relevant 
amount and character of radiation to which the individual was exposed 
related to his or her employment in the nuclear weapons complex--can be 
estimated.
    After NIOSH completes the dose reconstruction and calculates a dose 
estimate for the worker, DOL takes this estimate and applies the 
methodology also promulgated by HHS (in its probability of causation 
regulation) to determine if the statutory causality test is met. The 
standard is met if the cancer was ``at least as likely as not'' related 
to the covered employment, as indicated by a determination of at least 
a 50 percent probability. DOL's district office then issues a 
recommended decision on eligibility for EEOICPA benefits, which is 
subject to the same subsequent administrative procedures and appeal 
rights described above with regard to other claims.

                   DOL PERFORMANCE GOALS AND OUTCOMES

    The Department of Labor is committed to measuring the 
accomplishment of measurable outcomes and holding ourselves accountable 
for achieving the fundamental goals of all the programs we administer. 
With respect to the Energy Compensation program, we established high 
performance standards focused on moving claims rapidly through the 
initial and secondary adjudication stages. Our Government Performance 
Results Act (GPRA) goals, even for the first full year (FY 2002), were 
challenging in light of the large number of first year claims and 
program start-up activities.
    Our goal for initial processing was to make initial decisions in 75 
percent of the cases within 120 days for cases from DOE facilities and 
in RECA claims, and within ISO days for AWE, beryllium vendor, and 
subcontractor cases (for which employment and other critical 
information is generally more difficult to obtain). Because we had 
nearly 30,000 cases on hand to start with, we knew in advance we would 
not meet those goals, which were conceptualized in terms of a normal, 
steady-state flow of incoming claims. However, establishing rigorous 
performance goals signaled to our own staff and to those potentially 
eligible for benefits that we were committed to efficiently processing 
claims. In fact, eve took timely initial actions (either recommended 
decisions or referral to NIOSH for dose reconstruction) in about 48 
percent of the cases during that first full year of operation (FY 
2002), despite the backlog of cases from the previous year. The smaller 
number of final decisions completed in FY 2002 met our GPRA timeliness 
goals in 76 percent of cases.
    During FY 2003 the DOL program was able to eliminate the initial 
backlog of claims, leaving only a working inventory of about two to 
three months' incoming claims pending in our district offices. At the 
same time, and despite making decisions on many older cases as we 
cleared the backlog, the program was able to exceed its GPRA timeliness 
goals. Our district offices issued initial decisions within the target 
timeframe in 79 percent of all cases processed, in excess of the 75 
percent goal. Our Final Adjudication Branch issued 77 percent of its 
final decisions within the program standards, also in excess of a goal 
of 75 percent. During FY 2004 we have continued to improve on these 
results, exceeding our GPRA standards on all counts and driving down 
the average times to complete each phase of the different types of Part 
B claims. For example, the average time to complete an initial decision 
for cases from DOE facilities has been reduced from 98 to 73 days, and 
the average for cases from all other facilities and subcontractors is 
down from 123 to 99 days.
    Accomplishment of these goals took the persistent, case-by-case 
effort of the entire staff of our Division of Energy Employees 
Occupational Illness Compensation Program (DEEOIC), as well as the 
continuing support of our Solicitor's Office. Close and frequent 
coordination with HHS allowed us to move cases smoothly and efficiently 
to NIOSH when dose reconstruction is needed. In addition, DOL and DOE 
worked cooperatively to improve the employment verification process and 
reduce the average time for completion of DOE verifications from nearly 
90 days at the beginning of FY 2003 to a current average of less than 
45 days. These cooperative measures were instrumental in reducing Part 
B processing times.
    DOL has also focused on achieving quality decisions, and on 
providing clear and effective communications to our customers and 
stakeholders. DEEOIC instituted a rigorous Accountability Review 
process, borrowed from the older compensation programs administered by 
OWCP. This process subjects statistically valid samples of case work in 
each program office to careful scrutiny by objective reviewers, both to 
assess the level of quality of the work and to guide managers in 
developing training and other corrective action measures. The 
headquarters staff has developed comprehensive procedural and policy 
guidance, a difficult task in the context of a new and still evolving 
compensation program. Although no workers' compensation program is 
without conflict, the level of appeals has been relatively low, 
suggesting that the new program has reached a level of quality that 
builds credibility for its decisions.
    Since the effective date of the Act, DOL has received over 52,000 
claims, which were filed based on 39,500 individual cases or workers. 
As of March 18, 2004, our district office staff have made recommended 
decisions or referred the case to NIOSH for dose reconstruction in over 
95 percent of the cases received. There have been over 1,000 Final 
Decisions issued in nearly 22,000 cases and nearly $778 million in 
compensation payments made to over 10,400 claimants. Additionally, 
nearly $29 million in medical benefits have been paid. A detailed 
listing of current program statistics is displayed in attached Program 
Status Report.*
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    * The report has been retained in committee files.
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                         CURRENT DOL CHALLENGES

    After two and a half years in existence, Part B of the EEOICPA 
program is approaching stability. The staff is now well trained and 
experienced, and support systems have been refined. The initial backlog 
has been eliminated, and the relatively steady stream of incoming 
claims is being processed timely as received. Nevertheless, DOL must 
gear up to adjudicate the thousands of cases that are now beginning to 
return from NIOSH with completed dose reconstructions. To date, DOL has 
issued a recommended decision on roughly 1,700 of these over 2,000 dose 
reconstructed cases, completing that work within an average of five 
days after they are received from NIOSH. This is well below the 
program's timeliness goal of 21 days for such actions, but it is 
expected that this workload will become more challenging as NIOSH 
production accelerates. In addition, dose reconstruction cases are more 
complicated, entail much more factual evidence subject to dispute, and 
will inevitably have a lower rate of initial approvals (approximately 
28 percent at the recommended decision level thus far, about 30 percent 
less than the overall approval rate). Accordingly, we anticipate a 
growing level of appeals requests and potential litigation as this 
workload matures and becomes the predominant Part B claim type being 
adjudicated.
    Recognizing that there are still groups of potential beneficiaries 
who have not been made aware of the program or do not understand how it 
works, we have also made a commitment to intensify our already 
extensive outreach efforts. These efforts, in cooperation with DOE, 
will include a significant number of strategically located traveling 
resource centers to provide assistance to potential claimants, as well 
as coordination with pension funds, unions, and other groups which may 
be able to extend our message about the program to retirees and workers 
or their survivors who no longer live in proximity to a DOE facility. 
This outreach has particular urgency for living workers who may have 
contracted a covered condition but have not yet filed a claim. This is 
because these individuals' eligibility for Part B medical benefits does 
not begin until the date their claim is filed. We are also using some 
of the partner organizations just mentioned to obtain employment 
information for subcontractor employees and construction workers for 
whom employment records are not available otherwise.

                       DOSE RECONSTRUCTION ISSUES

    Although the intricate dose reconstruction process took time to be 
developed and become fully operational, that process is now beginning 
to yield results. NIOSH has returned approximately 2,000 completed dose 
reconstruction cases to DOL through mid March 2004. Of that group, 
nearly 500 have received favorable recommended decisions, indicating 
that the probability of causation was found to be 50 percent or more. 
Most of those cases (390) have already been paid. We anticipate an 
acceleration in completed close reconstructions, and hence in payments 
generated through this avenue, based on the more than 5,000 cases now 
in the final stages of the NIOSH dose reconstruction production process 
and in light of NIOSH's development and refinement of complex ``site 
profiles'' for most of the major facilities. While building the site 
profiles has been laborious and time consuming, these profiles should 
allow NIOSH to ensure consistency, accuracy, efficiency, and increased 
promptness in completing individual dose reconstructions in the future.
    DOL is encouraged by the increased productivity in the dose 
reconstruction process, the claimant-friendly approach NIOSH has 
adopted, and the duality and balance of the dose reconstruction reports 
produced. We believe this process is the most effective means of 
identifying which specific cancers can reasonably be attributed to the 
increased risk of cancer caused by radiation exposure at a covered 
facility. While the process has taken longer than anticipated to get 
moving, it is scientifically based and represents the most consistent, 
objective, and understandable method available in determining the 
presence of radiogenic cancer.

                           DOE PART D ISSUES

    I mentioned earlier that DOL shares case information with DOE for 
claims fled under both Parts B and D of the EEOICPA. Nearly 95 percent 
of the claimants who have filed Part D cases have also filed claims 
with DOL under Part B. DOL and DOE have developed procedures for 
sharing case-level information, and will work together to reduce the 
time spent on redundant case development and investigation. However, 
the extent to which sharing the DOL case work reduces the need for case 
development by DOE varies considerably by the nature of the case and 
due to the difference between Part B and Part D eligibility criteria. 
For example, a large number of overlapping cases do not present a 
covered Part B medical condition - they are true Part D claims that 
were in effect misfiled with DOL. In those instances, DOL would not 
develop the medical conditions not covered by Part B, nor would we 
develop or make a determination of covered employment unless a Part B 
covered medical condition was being claimed. However, sharing case file 
information for Part D cases in which a claimant also has alleged a 
Part B covered condition, when DOL has already developed the case, may 
provide DOE with confirmed evidence such as covered employment, and 
sufficient medical documentation to determine that the employee did 
suffer a cancer, beryllium disease, or silicosis. DOE has indicated 
that it has reprioritized its Part D application processing to put 
those dual Part B - Part D applications with a positive Part B 
determination higher in their processing queue, given the work already 
done by DOL, and the higher standard of causation used for the Part B 
program.
    It is not easy to quantify the extent to which this data sharing 
reduces redundant investigation and development of Part D cases, but 
DOE can benefit from some of the case development work already 
conducted by DOL. A data match between DOE Part D claims and DOL Part B 
claims was conducted in June 2003, and identified 16,304 individuals 
for whom claims were filed under both programs. As of March 11, 2004, 
DOL had made at least an initial determination as to covered employment 
and/or the sufficiency of medical evidence of cancer, beryllium 
disease, or silicosis in 15,834 cases (97 percent of the matches).
    The DOL cases most readily applicable for processing under Part D 
are 1,741 matched cases (11 percent of the matches) containing evidence 
of covered employment. Sufficient medical justification of a Part B 
covered illness, and sufficient evidence of causation. These cases 
include Final Approvals for matched cases for beryllium disease (482 
case for beryllium sensitivity and 333 for chronic beryllium disease), 
chronic silicosis (16 matched cases), cases of multiple Part B covered 
illnesses (12 matched cases), and cases returned by NIOSH with 
completed dose reconstructions (898 matched cases).
    Also directly applicable to Part D are the 6,788 matched cases (42 
percent of the matches) currently pending NIOSH dose reconstruction. 
(DOE has advised us that they are now utilizing the NIOSH reports as a 
means of simplifying the work of its panels in these instances.) As 
these cases are returned by NIOSH, they can be used by DOE as 
significant evidence for physician panel consideration. In cases where 
the applicant has only fled for cancer, DOE can send these cases to its 
panel with little additional preparation. It must be noted, however, 
that DOE may need to do additional case development for cases where the 
applicant has claimed multiple illnesses. In those cases, DOE may need 
to obtain additional exposure data for conditions not evaluated under 
Part B, so as to properly develop the case under Part D criteria.
    Of less direct applicability would be 1,507 matched cases that have 
final DOL approvals for SEC cancers. These cases may have significant 
employment and medical information that would be useful for Part D 
processing. Because of the SEC presumption, however, they may not 
include evidence related to causation that would be applicable to Part 
D's causation standard. DOE may also need to validate other (non-DOL 
covered) illnesses, and obtain additional employment and exposure data 
for these cases.

                    RECOMMENDATIONS FOR IMPROVEMENT

    Mr. Chairman, you asked that we address ideas for improving the 
EEOICPA in our testimony. We support the proposed legislation DOE has 
advanced to remove certain administrative obstacles to the smooth 
operation of that program, most notably elimination of the current cap 
on compensation for its physician panel members. We support DOE's 
request for an appropriations transfer to allow it to expedite case 
processing and expand its physician panels, and to maintain and enhance 
the retrieval of records for both Parts B and D. This appropriation 
transfer is particularly important since without it, DOE has indicated 
it may not be able to continue to provide Part B employment 
verifications or NIOSH dose reconstruction data requests for all of 
FY04. As noted earlier, DOL will work with DOE more intensively in the 
coming weeks with administrative initiatives that will aid in clearing 
the existing Part D backlog.
    While we believe that Part B is now operating fully and 
effectively, some clarifications of the statute may be in order. 
Clarification may be needed regarding the precise definition of which 
DOE facilities or activities are covered, to ensure that EEOICPA 
benefits, and the expense of administering the statute, are directed 
toward the population Congress intended to help. The Administration is 
currently reviewing this issue and will provide legislative language in 
the near future.
    I would note, however, that DOL's experience with compensation 
programs like EEOICPA suggests that any substantial changes should be 
undertaken with extreme caution and an eye to the long term. The 
history of the Black Lung program is an object lesson regarding the 
effects of frequent and fundamental programmatic shifts. Major 
alterations in that program in the standards of proof, eligibility 
criteria, and coverage have resulted in frustrating inconsistencies for 
the intended beneficiaries. We urge Congress to consider such 
ramifications whenever legislation to change EEOICPA is proposed to 
avoid establishing an environment for program inequities and 
instability over the long-term.
    I would be pleased to answer any questions the Committee may have.

    Senator Bunning. Mr. Robertson.

          STATEMENT OF ROBERT E. ROBERTSON, DIRECTOR, 
   EDUCATION, WORKFORCE, AND INCOME SECURITY ISSUES, GENERAL 
                       ACCOUNTING OFFICE

    Mr. Robertson. Good morning and thanks for the opportunity 
to be here this morning to talk about these very important 
issues. My remarks are going to be based on our ongoing work 
looking at DOE's implementation of subtitle D of the Energy 
Employees Occupational Illness Compensation Program Act. What 
I'd like to do this morning is quickly run through three 
points.
    First, while Energy has increased the speed of initial case 
development, large numbers of claims still have not been 
processed. During the first 2\1/2\ years of the program ending 
December 31, 2003, Energy had fully processed about 6 percent 
of the more than 23,000 claims it had received. The majority of 
the fully processed claims, and that's about 5 percent of the 
overall cases, had been found ineligible because of either a 
lack of employment at an eligible facility, or the absence of 
an illness related to toxic exposure. Energy had not begun 
processing nearly 60 percent of the cases it had received. In 
the last 6 months of 2003, Energy had more than tripled the 
number of cases receiving a final determination from a 
physicians panel--this has increased from 42 to 150. These 150 
cases represented less than 1 percent of the total cases filed.
    As an aside, I should also note that assessing Energy's 
achievement of case processing goals was complicated by systems 
limitations, which also make it difficult to assess progress 
toward goals related to program objectives, such as the quality 
of assistance given to claimants in filing for state worker 
compensation.
    My second point is to raise a concern about the 
availability of suitable numbers of qualified physicians to 
serve on physicians panels. As you're aware, these are the 
panels that issue determinations claimants use to file claims 
under State worker compensation systems. Even with panels 
operating at full capacity, the small pool of physicians 
qualified to serve on panels is likely to limit the agency's 
ability to produce more timely determinations.
    Now, Energy, as you heard earlier this morning, has taken 
some actions to address some of the physician panel problems. 
It has identified additional sources for recruiting physicians 
and it has implemented modifications to the qualifications 
required for physicians to serve. It also has recently reduced 
the number of physicians required to evaluate cases and changed 
timeframes for completing their review.
    However, it's still just too early to determine the extent 
to which these changes will actually improve the speed of 
obtaining a physician determination. In the meantime, claimants 
have experienced lengthy delays in receiving the determinations 
they need to file worker compensation claims. Further, Energy 
has not kept claimants sufficiently informed about the delays 
in processing their claims or what they, the claimants, can 
expect to see as they proceed with the State worker 
compensation systems.
    My third and final point is to note that while a majority 
of the cases associated with Energy facilities in the nine 
States we examined are not likely to be contested by employers 
or their insurers, actual compensation is not certain. 
Specifically, slightly more than half the cases associated with 
these facilities are likely to have a willing payer benefits. 
Another quarter of the cases, while not having willing payers, 
will have worker compensation coverage provided by an insurer 
who has stated that it will not contest the claim for benefits. 
These figures are order-of-magnitude estimates based largely on 
the method of workers' compensation coverage used by Energy 
contractor employers, and are not an estimate of the number of 
cases that will be ultimately paid. In fact, for all claimants 
actual compensation is not certain because of additional 
factors such as variations in State worker compensation 
programs or contractor's uncertainty on how to compute 
benefits. These are items that were discussed earlier this 
morning.
    Roughly 20 percent of the cases in the nine States we 
reviewed are likely to lack a willing payer. My written 
testimony provides framework for considering options to deal 
with the absence of willing payers for claims that receive a 
positive determination from Energy. Options for changing the 
program range from adding a Federal benefit to the existing 
program for cases that lack a willing payer to designing an 
entirely new program.
    If the Congress chooses to modify the current program, it 
would need to examine these options in terms of several issues, 
including the source, method, and amount of Federal funding 
required to pay benefits, the length of time needed to 
implement changes, the criteria for determining who is 
eligible, and the equitable treatment of claimants. In 
particular, the cost implications of any change should be 
carefully considered in the context of current Federal fiscal 
environment.
    That ends my prepared remarks. I'll be happy to answer 
questions.
    [The prepared statement of Mr. Robertson follows:]

    Prepared Statement of Robert E. Robertson; Director; Education, 
    Workforce, and Income Security Issues; General Accounting Office
                     Energy Employees Compensation

     OBSTACLES REMAIN IN PROCESSING CASES EFFICIENTLY AND ENSURING 
                      A SOURCE OF BENEFIT PAYMENTS

What GAO Found
    During the first 2\1/2\ years of the program, ending December 31, 
2003, Energy had completely processed about 6 percent of the more than 
23,000 cases that had been filed. Energy had begun processing of nearly 
35 percent of cases, but processing had not yet begun on nearly 60 
percent of the cases.
    While Energy got off to a slow start in processing cases, it is now 
processing enough cases that there is a backlog of cases waiting for 
review by a physician panel. Energy has taken some steps intended to 
reduce this backlog, such as reducing the number of physicians needed 
for some panel Nonetheless, a shortage of qualified physicians 
continues to constrain the agency's capacity to decide cases more 
quickly. Consequently, claimants will likely continue to experience 
lengthy delays in receiving the determination: they need to file 
workers' compensation claims.
    GAO estimates that more than half of the cases associated with 
Energy facilities in 9 states that account for more than three-quarters 
of all Subtitle D cases filed are likely to have a willing payer of 
benefits. Another quarter of the cases in these 9 states, while not 
technically having a willing payer, have workers' compensation coverage 
provided by an insurer that has stated that it will not contest these 
claims. However, the remaining 20 percent of cases lack willing payers 
and are likely to be contested, which means that many of these cases 
may be less likely to receive compensation. Because of data 
limitations, these percentages provide an order of magnitude estimate 
of the extent to which claimants will have willing payers. The 
estimates are not a prediction of actual benefit outcomes for 
claimants.
    In this testimony, GAO also provides a framework for evaluating 
potential options for changing the program to address the willing payer 
issue. This framework includes a range of issues that would help the 
Congress assess options if it chooses to change the current program. 
One of these issues in particular--the federal cost implications--
should be carefully considered in the context of the current federal 
fiscal environment.
                                 ______
                                 
    Mr. Chairman and Members of the Committee, I am pleased to be here 
today to update the information we provided in our November 21, 2003 
testimony before you on our work regarding the effectiveness of the 
benefit program under Subtitle D of the Energy Employees Occupational 
Illness Compensation Program Act of 2000 (EEOICPA). This legislation 
was designed to provide assistance to contractor employees in obtaining 
compensation for occupational illnesses. Congress mandated that we 
study this issue and report to the Senate Committees on Energy and 
Natural Resources and Appropriations and the House Committees on Energy 
and Commerce and Appropriations
    For the last several decades, the Department of Energy (Energy) and 
its predecessor agencies and contractors have employed thousands of 
individuals in secret and dangerous work in the nuclear weapons 
production complex. Over the years, employees were unknowingly exposed 
to toxic substances, including radioactive and hazardous materials, and 
studies such as one commissioned by the National Economic Council have 
shown that many of these employees subsequently developed serious 
illnesses. EEOICPA established two programs to help secure compensation 
for employees who developed occupational illnesses or for their 
survivors. Congressional Committees, as well as individual Members of 
Congress, claimants, and advocates have raised concerns regarding 
Energy's processing of claims and the availability of benefits once 
claims have been decided.
    Enacted as title XXXVI of the Floyd D. Spence National Defense 
Authorization Act for Fiscal Year 2001, which was signed into law on 
October 30, 2000, this legislation has two major components. Subtitle B 
provides eligible workers who were exposed to radiation or other toxic 
substances and who subsequently developed illnesses such as cancer and 
lung disease a one-time payment of up to $150,000 and covers future 
medical expenses related to the illness. The Department of Labor 
administers these benefits, payable from a compensation fund 
establishes by the same legislation. Subtitle D allows Energy to help 
its contractor employees file state workers' compensation claims for 
illnesses determined by a panel of physicians to be caused by exposure 
to toxic substances in the course of employment at an Energy facility.
    My testimony today reflects our ongoing review of the effectiveness 
of Energy's implementation of Subtitle D. Our work is focused on four 
key areas: (1) the number, status, and characteristics of claims filed 
with Energy; (2) the extent to which Energy policies and procedures 
help employees file timely claims for state workers' compensation 
benefits; (3) the extent to which there will be a ``willing payer'' of 
workers' compensation benefits; that is, an insurer who--by order from, 
or agreement with, Energy--will not contest these claims; and (4) a 
framework that could be used for evaluating possible options for 
changing the program in the event that there may not be willing payers 
of benefits.
    In summary, as of December 31, 2003, Energy had fully processed 
about 6 percent of the more than 23,000 cases received. Most of the 
fully processed cases had been found ineligible because of either a 
lack of employment at an eligible facility or an illness related to 
toxic exposure. While Energy got off to a slow start in processing 
cases, it is now processing enough cases that there is a backlog of 
cases waiting for review by a physician panel. The agency has taken 
some steps to reduce this backlog; nonetheless, a shortage of qualified 
physicians continues to constrain Energy's capacity to decide cases 
more quickly. In the meantime, Energy has not kept claimants 
sufficiently informed about the delays in the processing of their 
claims as well as what claimants can expect as they proceed with state 
workers' compensation claims.
    While the workers' compensation claims from about 80 percent of the 
cases associated with major Energy facilities in 9 states are not 
likely to bE contested by employers or their insurers, actual 
compensation is not certain. This figure is based primarily on the 
method of workers' compensation coverage used by the Energy contractors 
and is not an estimate of the number of cases that will ultimately be 
paid. Specifically, slightly more than half the cases associated with 
facilities in the 9 states are likely to have a willing payer of 
benefits and another quarter of the cases, while not having willing 
payers, have workers' compensation coverage provided by an insurer that 
has stated that it will not contest the claim for benefits. However, 
the remaining 20 percent of cases lack willing payers and are likely to 
be contested, which means that many of these cases may be less likely 
to receive compensation. Because of data limitations, these percentages 
provide an order of magnitude estimate of the extent to which claimants 
will have willing payers. The estimates are not a prediction of actual 
benefit outcomes for claimants.
    Various options are available to improve payment outcomes for the 
cases that receive a positive physician panel determination, but lack 
willing payers under the current program. If it were decided that the 
program should be modified, the options for changing it range from 
adding a federal benefit to the existing program for cases that lack a 
willing payer to designing a completely new program. Congress would 
need to examine these options in terms of several issues, including the 
source, method, and amount of the federal funding required to pay 
benefits; the length of time needed to implement changes; the criteria 
for determining who is eligible; and the equitable treatment of 
claimants. In particular, the federal cost implications of these 
options should be carefully considered in the context of the current 
federal fiscal environment.
    To perform our review, we analyzed data extracted from Energy's 
Subtitle D case management system for applications filed through June 
30, 2003, and again through December 31, 2003.\1\ We also reviewed the 
provisions of and interviewed officials with, the workers' compensation 
programs in nine states with Energy facilities accounting for more than 
three-quarters of Subtitle D cases filed, and we interviewed the 
contractors operating the major facilities in these states. In 
addition, we conducted site visits to three Energy facilities in Oak 
Ridge, Tennessee, the state with facilities accounting for the largest 
number of Subtitle D claims. We also interviewed key program officials 
and other experts. Although our review is continuing, we conducted our 
work for this testimony from April 2003 through March 2004 in 
accordance with generally accepted government auditing standards.
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    \1\ We collected data as of this date to enable us to assess the 
reliability of Energy's data by (1) performing electronic testing for 
obvious errors in accuracy and completeness, (2) reviewing available 
documentation, and (3) interviewing agency officials and contractors 
knowledgeable about the data. We determined that the data elements used 
were sufficiently reliable for our purposes.
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                               Background

    Energy oversees a nationwide network of 40 contractor-operated 
industrial sites and research laboratories that have historically 
employed--more than 600,000 workers in the production and testing of 
nuclear weapons. In implementing EEOICPA, the President acknowledged 
that it had been Energy's past policy to encourage and assist its 
contractors in opposing workers' claims for state workers' compensation 
benefits based on illnesses said to be caused by exposure to toxic 
substances at Energy facilities.\2\ Under the new law, workers or their 
survivors could apply for assistance from Energy in pursuing state 
workers' compensation benefits; and if they received a positive 
determination from Energy, the agency would direct its contractors to 
not contest the workers' compensation claims or awards. Energy's rules 
to implement the new program became effective in September 2002, and 
the agency began to process the applications it had been accepting 
since July 2001, when the law took effect.
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    \2\ Executive Order 13179 of December 7, 2000.
---------------------------------------------------------------------------
    Energy's claims process has several steps. First, claimants file 
application, and provide all available medical evidence. Energy then 
develops the claims by requesting records of employment, medical 
treatment, and exposure to toxic substances from the Energy facilities 
at which the workers were employed. If Energy determines that the 
worker was not employed by one of its facilities or did not have an 
illness that could be caused by exposure to toxic substances, the 
agency finds the claimant ineligible. For all others, once development 
is complete, a panel of three physicians reviews the case and decides 
whether exposure to a toxic substance during employment at an Energy 
facility was at least as likely a-, not to have caused, contributed to, 
or aggravated the claimed medical condition. The panel physicians are 
appointed by the National Institute for Occupational Safety and Health 
(NIOSH) but paid by Energy for this work Claimants receiving positive 
determinations are advised that they may wish to file claims for state 
workers' compensation benefits. Claimants found ineligible or receiving 
negative determinations may appeal to Energy's Office of Hearings and 
Appeals.



    Each of the 50 states and the District of Columbia has its own 
workers' compensation program to provide benefits to workers who are 
injured on the job or contract a work-related illness. Benefits include 
medical treatment and cash payments that partially replace lost wages. 
Collectively, these state programs paid more than $46 billion in cash 
and medical benefits in 2001. In general, employers finance workers' 
compensation programs. Depending on state law, employers finance these 
programs through one of three methods: (1) they pay insurance premium 
to a private insurance carrier, (2) they contribute to a state workers' 
compensation fund, or (3) they set funds aside for this purpose as 
self-insurance. Although state workers' compensation laws were enacted 
in part as an attempt to avoid litigation over workplace accidents, the 
workers' compensation process is still generally adversarial, with 
employers and their insurers tending to contest aspects of claims that 
they consider not valid.
    State workers' compensation programs vary as to the level of 
benefits, length of payments, and time limits for filing. For example, 
in 1999, the maximum weekly benefit for a total disability in New 
Mexico was less that $400, while in Iowa it was approximately $950. In 
addition, in Idaho, the weekly benefit for total disability would be 
reduced after 52 weeks, while in Iowa benefits would continue at the 
original rate for the duration of the disability. Further, in 
Tennessee, a claim must be filed within 1 year of the beginning of 
incapacity or death. In contrast, in Kentucky a claim must be filed 
within 3 years of either the last exposure to most substances or onset 
of disease symptoms, but within 20 years of exposure to radiation or 
asbestos.

Energy Has Processed Few Cases And Insufficient Strategic Planning And 
             Data Collection Complicate Program Management
    As of December 31, 2003, Energy had completely processed about 6 
percent of the more than 23,000 cases that had been filed. Energy had 
begun processing of nearly 35 percent of cases, but processing had not 
yet begun on nearly 60 percent of the cases. Insufficient strategic 
planning and systems limitations complicate assessment of Energy's 
achievement of case processing goals. Further, these limitations make 
it difficult to assess achievement of other broader goals, related to 
program objectives, such as the quality of the assistance given to 
claimants in filing for state workers' compensation.

        ENERGY HAS FULLY PROCESSED ABOUT 6 PERCENT OF ITS CASES

    During the first 2\1/2\ years of the program, ending December 31, 
2003, Energy had fully processed about 6 percent of the more than 
23,000 claims it received. The majority of the fully processed claims 
(about 5 percent of all cases) had been found ineligible because of 
either a lack of employment at an eligible facility or an illness 
related to toxic exposure. I1 the last 6 months of 2003, Energy more 
than tripled the number of cases receiving a final determination from a 
physician panel, from 42 to 150. These 150 cases represent less than 1 
percent of the more than 23,000 cases filed.
    While cases filed are associated with facilities in 43 states or 
territories, the majority of cases are associated with Energy 
facilities in 9 states. Facilities in Colorado, Idaho, Iowa, Kentucky, 
New Mexico, Ohio, South Carolina, Tennessee, and Washington account for 
more than 75 percent of cases received by December 31, 2003. The 
largest group of cases is associated with facilities in Tennessee.



    A majority of all cases were filed during the first year of program 
implementation, but new cases continue to be filed. Nationwide, the 
number of cases filed increased by 22 percent in the last 6 months of 
2003 from fewer than 19,000 to more than 23,000. However, the rate of 
increase in cases filed was not uniform across the 9 states with 
facilities that account for more than three-quarters of all cases. For 
example, cases associated with facilities in Washington increased by 8 
percent during the 6-month period while cases in New Mexico increased 
by 34 percent and cases in Ohio increased by 80 percent.
    As of the end of calendar year 2003, Energy had not yet begun 
processing nearly 60 percent of the cases, and an additional 35 percent 
of cases were in processing. The majority of cases being processed were 
in the case development stage, where Energy requests information from 
the facility at which the claimant was employed. Of the cases still in 
processing, about 2 percent were ready for physician panel review and 3 
percent were undergoing panel review.
    Energy reports that, in recent months, it has considerably 
accelerated the rate at which it is completing the development of cases 
that are ready for physician panel review. Since our testimony in 
November 2003, Energy's case development process has met the agency's 
goal of completing the development on 100 cases per week, which is 
considerably higher than the average of about 30 cases per week it was 
completing in September 2003. Moreover, since our prior testimony, 
Energy has also completed a comprehensive review of its Subtitle D 
program that resulted in a plan that identifies strategies for further 
accelerating its case processing. This plan sets a goal of eliminating 
the entire case backlog by the end of fiscal year 2006 and is 
dependent, in part, on Energy's shifting additional funds into this 
program.

  INSUFFICIENT STRATEGIC PLANNING AND DATA COLLECTION LIMIT ENERGY'S 
        ABILITY TO DETERMINE WHETHER PROGRAM GOALS ARE BEING MET

    Insufficient strategic planning regarding system design, data 
collection, and tracking of outcomes has made it more difficult for 
Energy officials to manage some aspects of the program and for those 
with oversight responsibilities to determine whether Energy is meeting 
the goal of providing assistance in filing for workers' compensation. 
The data system used by Energy to aid in case management was developed 
by contractors without detailed specifications from Energy. 
Furthermore, the system way developed before Energy established its 
processing goals, and the change: Energy implemented to improve its 
ability to track certain information have resulted in more recent 
status data being not completely comparable with older status data.
    Because it did not adequately plan for the various uses of its 
data, Energy lacks some of the information needed to analyze how cases 
will fare where they enter the state workers' compensation systems or 
to track their outcomes. Specifically, it is difficult for Energy to 
predict whether willing payers of workers' compensation benefits will 
exist using case management system data because the information about 
the specific employer for whom the claimant worked is not collected in 
a format that can be systematically analyzed. Since employers are 
liable for workers' compensation coverage, specific employer 
information is important in determining whether a willing payer exists. 
In addition, while Energy has not been systematically tracking whether 
claimants subsequently file workers' compensation claims or the 
decisions on these claims, Energy now plans to develop this capability.

   A Shortage of Qualified Physicians To Issue Determinations Delays 
   Filing of Workers' Compensation Claims And Claimants May Receive 
     Inadequate Information To Prepare Them To Pursue These Claims

    Energy was slow in implementing its initial case processing 
operation, but it is now processing enough cases so that there is a 
backlog of cases awaiting physician panel review. With panels operating 
at full capacity, the small pool of physicians qualified to serve on 
the panels may ultimately limit the agency's ability to produce more 
timely determinations. Claimants have experienced lengthy delays in 
receiving the determinations they need to file workers' compensation 
claims and have received little information about claims status as well 
as what they can expect from this process. Energy has taken some steps 
intended to reduce the backlog of cases.

  THE ABILITY TO PRODUCE MORE TIMELY DECISIONS MAY BE LIMITED BY THE 
SMALL POOL OF QUALIFIED PHYSICIANS AND GAPS IN INFORMATION THEY NEED TO 
                          QUICKLY DECIDE CASES

    Additional resources have allowed Energy to speed initial case 
development, and it has been processing enough cases to produce a 
backlog of cases waiting for physician panel review. However, the 
limited pool of qualified physicians for panels may continue to prevent 
significant improvements in processing time. Under the rules Energy 
originally established for this program that required that each case be 
reviewed by a panel of 3 physicians and given the 130 physicians 
currently available, it could have taken more than 13 years to process 
all cases pending as of December 31, without consideration of the 
hundreds of new cases the agency is receiving each month.\3\ However, 
in an effort to make the panel process more efficient, Energy published 
new rules on March 24, 2004, that re-defined a physician panel as one 
or more physicians appointed to evaluate these cases and changed the 
timeframes for completing their review. In addition, the agency began 
holding a full-time physician panel it Washington, D.C. in January 
2004, staffed by physicians who are willing to serve full-time for a 2- 
or 3-week period.
---------------------------------------------------------------------------
    \3\ This 13-year estimate assumes that none of the pending cases 
would be determined ineligible on the basis of noncovered employment or 
illnesses because we did not possess sufficient basis for projecting 
the number of pending cases that would be determined ineligible in the 
future.
---------------------------------------------------------------------------
    Energy and NIOSH officials have taken steps to expand the number of 
physicians who would qualify to serve on the panels and to recruit more 
physicians, including some willing to work full-time. While Energy has 
made several requests that NIOSH appoint additional physicians to staff 
the panels, such as requesting 500 physicians in June 2003, NIOSH 
official: have indicated that the pool of physicians with the 
appropriate credentials and experience is limited.\4\ The criteria 
NIOSH originally used to evaluate qualifications for appointing 
physicians to these panels included: (1) board certification in a 
primary discipline; (2) knowledge of occupational medicine; (3) minimum 
of 5 years of relevant clinical practice following residency; and (4) 
reputation for good medical judgment, impartiality, and efficiency. 
NIOSH recently modified these qualifications, primarily to reduce the 
amount of required clinical experience so that physicians with 
experience in relevant clinical or public health practice or research, 
academic, consulting, or private sector work can now qualify to serve 
on the panels. NIOSH has revised its recruiting materials to reflect 
this change and to point out that Energy is also interested in 
physicians willing to serve on panels full-time. However, a NIOSH 
official indicated that only a handful of physicians would likely be 
interested in serving full-time on the panels.
---------------------------------------------------------------------------
    \4\ In March 2004, Energy requested additional physicians from 
NIOSH that would result in tripling the number of full-time equivalent 
physicians in 2004 and increasing the number of full-time equivalent 
physicians by a factor of 6 in 2005.
---------------------------------------------------------------------------
    Energy officials have also explored additional sources from which 
NIOSH might recruit qualified physicians, but they have expressed 
concerns that the current statutory cap on the rate of pay for panel 
physicians may limit the willingness of physicians from these sources 
to serve on the panels. For example, Energy officials have suggested 
that physicians in the military services might be used on a part-time 
basis, but the rate of pay for their military work exceeds the current 
cap. Similarly, physicians from the Public Health Service could serve 
on temporary full-time details as panel physicians. To elevate the rate 
of pay for panel physicians to a level that is consistent with the rate 
physicians from these sources normally receive, Energy officials plan 
to develop a legislative proposal that will modify the current cap on 
the rate of pay and would also expand Energy's hiring authority.
    Panel physicians have also suggested methods to Energy for 
improving the efficiency of the panels. For example, some physicians 
have said that more complete profiles of the types and locations of 
specific toxic substances at each facility would speed their ability to 
decide cases. While Energy officials reported that they have completed 
facility overviews for about half the major sites, specific site 
reference data are available for only a few sites. Energy officials 
told us that, in their view, the available information is sufficient 
for decision making by the panels. However, based on feedback from the 
physicians, Energy officials are exploring whether developing 
additional site information would be cost beneficial.

 ENERGY HAS NOT SUFFICIENTLY COMMUNICATED CASE STATUS AND EXPECTATIONS 
                     ABOUT THE PROCESS TO CLAIMANTS

    Energy has not always provided claimants with complete and timely 
information about what they could achieve in filing under this program. 
Energy officials concede that claimants who filed in the early days of 
the program may not have been provided enough information to understand 
the benefits they were filing for. As a consequence, some claimants who 
filed under both Subtitle B and Subtitle D early in the program later 
withdrew their claims under Subtitle D because they had intended to 
file only for Subtitle B benefits or because they had not understood 
that they would still have to file for state workers' compensation 
benefits after receiving a positive determination from a physician 
panel. After the final regulations were published in August 2002, 
Energy officials said that claimants had a better understanding of the 
benefits for which they were applying.
    Energy has not kept claimants sufficiently informed about the 
status of their claims under Subtitle D. Until recently, Energy's 
policy was to provide no written communication about claims status 
between the acknowledgement letters it sent shortly after receiving 
applications and the point it began to process claims. Since nearly 
half of the claims filed it the first year of the program remained 
unprocessed as of December 31, 2003, these claimants would have 
received no information about the states of their claims for more than 
1 year. Energy recently decided to change this policy and provide 
letters at 6-month intervals to all claimants with pending claims. 
Although the first of these standardized letters sent to claimants in 
the fall of 2003 did not provide information about individual claims 
status, it did inform claimants about a new service on the program' 
redesigned Web site through which claimants can check on the status of 
their claim. However, this new capability does not provide claimants 
with information about the timeframes during which their claims are 
likely to be processed and claimants would need to re-check the status 
periodically to determine whether the status of the claim has changed.
    Claimants may not be given sufficient information as to what they 
are likely to encounter when they file for state workers' compensation 
benefits. Energy's letter to claimants transmitting a positive 
determination from a physician panel does not always provide enough 
information about how they would go about filing for state workers' 
compensation benefits. For example, a contractor in Tennessee reported 
that a worker was directed by Energy's letter received in September 
2003 to file a claim with the state office in Nashville when 
Tennessee's rules require that the claim be filed with the employer. 
The contractor reported the problem to Energy in the same month, but 
Energy letters sent to Tennessee claimants in October and December 2003 
continued to direct claimants to the state office. Finally, claimants 
are not informed as to whether there is likely to be a willing payer of 
workers' compensation benefits and what this means for the processing 
of that claim. Specifically, advocates for claimants have indicated 
that claimants may be unprepared for the adversarial nature of the 
workers' compensation process when an insurer or state fund contests 
the claim.

       Workers' Compensation Claims For a Majority of Cases Are 
                       Not Likely to be Contested

    The workers' compensation claims for the majority of cases 
associated with major Energy facilities in 9 states\5\ are likely to 
have no challenges to their claims for state workers' compensation 
benefits. Specifically, based on additional analysis of workers' 
compensation programs and the different types of workers' compensation 
coverage used by the major contractors, it appears that slightly more 
than half of the cases will potentially have a willing payer-that is, 
contractors that will not contest the claims for benefits as ordered by 
Energy. Another 25 percent of the cases, while not technically having a 
willing payer, have workers' compensation coverage provided by an 
insurer that has stated that it will not contest these claims and is 
currently processing several workers' compensation claims without 
contesting them. The remaining 20 percent of cases in the 9 states we 
analyzed are likely to be contested. Because of data limitations, these 
percentages provide an order of magnitude estimate of the extent to 
which claimants will have willing payers.\6\ The estimates are not a 
prediction of actual benefit outcomes for claimants.
---------------------------------------------------------------------------
    \5\ The cases in these 9 states represent more than three-quarters 
of the cases filed nationwide. The results of our analysis cannot 
necessarily be applied to the remaining 25 percent of the cases filed 
nationwide.
    \6\ Because of data limitations, we assumed that: (1) all cases 
filed would receive a positive determination by a physician panel, (2) 
all workers lost wages because of the illness and were not previously 
compensated for this loss, and (3) in all cases, the primary contractor 
rather than a subcontractor at the Energy facility employed the worker.
---------------------------------------------------------------------------
    As shown in table 1, the contractors for four major facilities in 
these states are self-insured, which enables Energy to direct them to 
not contest claim: that receive a positive medical determination.\7\ In 
such situations where there is a willing payer, the contractor's action 
to pay the compensation consistent with Energy's order to not contest a 
claim will override state workers' compensation provisions that might 
otherwise result in denial of a claim, such as failure to file a claim 
within a specified period of time. Similarly, the agreement by the 
commercial insurer for the workers at the two facilities that 
constitute 25 percent of the cases to pay the workers compensation 
claims will mostly likely also supercede such state provisions. 
However, since the insurer is not bound by Energy's orders and it does 
not have a formal agreement with either Energy or the contractors to 
not contest these claims, there is nothing to guarantee that the 
insurer will continue to process claims in this manner.
---------------------------------------------------------------------------
    \7\ EEOICPA allows Energy, to the extent permitted by law, to 
direct its contractors not to contest such workers' compensation 
claims. In addition, the statute prohibits the inclusion of the costs 
of contesting such claims as allowable costs under its contracts with 
the contractors; however, Energy's regulations allow the costs incurred 
as the result of a workers' compensation award to be reimbursed in the 
manner permitted under the contracts.
---------------------------------------------------------------------------
    About 20 percent of cases in the 9 states we analyzed are likely to 
be contested. Therefore, in some instances, these cases may be less 
likely to receive compensation than a comparable case for which there 
is a willing payer, unless the claimant is able to overcome challenges 
to the claim. In addition, contested cases can take longer to be 
resolved. For example, one claimant whose claim is being contested by 
an insurer was told by her attorney that because of discovery and 
deposition motions by the opposing attorney, it would be two years 
before her case was heard on its merits. Specifically, the cases that 
lack willing payers involve contractors that (1) have a commercial 
insurance policy, (2) use a state fund to pay workers' compensation 
claims, or (3) do not have a current contract with Energy. In each of 
these situations, Energy maintains that it lacks the authority to make 
or enforce an order to not contest claims. For instance, an Ohio Bureau 
of Workers' Compensation official said that the state would not 
automatically approve a case, but would evaluate each workers 
compensation case carefully to ensure that it was valid and thereby 
protect its state fund. Further, although the contractor in Colorado 
with a commercial policy attempted to enter into agreements with prior 
contractors and their insurers to not contest claims, the parties have 
not yet agreed and several workers' compensation claims filed with the 
state program are currently being contested.

     Several Issues Should Be Considered in Evaluating Options for 
               Improving the Likelihood of Willing Payers

    Various options are available to improve payment outcomes for the 
cases that receive a positive determination from Energy, but lack 
willing payers. under the current program. If it chooses to change the 
current program, Congress would need to examine these options in terms 
of several issues, including the source, method, and amount of the 
federal funding required to pay benefits; the length of time needed to 
implement changes; the criteria for determining who is .eligible; and 
the equitable treatment of claimants. In particular, the cost 
implications of these options for the federal government should be 
carefully considered in the context of the current federal fiscal 
environment.

                OPTIONS FOR CHANGING THE CURRENT PROGRAM

    We identified four possible options for improving the likelihood of 
willing payers, some of which have been offered in proposed 
legislation. While not exhaustive, the options range from adding a 
federal benefit to the existing program for cases that lack a willing 
payer to addressing the willing payer issue as part of designing a new 
program that would allow policymakers to decide issues such as the 
eligibility criteria and the type and amount of benefits without being 
encumbered by existing program structures. A key difference among the 
options is the type of benefit that. would be provided.
    Option 1--State workers' compensation with federal back up. This 
option would retain state workers' compensation structure as under the 
current Subtitle D program but add a federal benefit for cases that 
receive a positive physician panel determination but lack a willing 
payer of state workers' compensation benefits. For example, claims 
involving employee, of current contractors that self-insure for 
workers' compensation coverage, would continue to be processed through 
the state programs. However, claims without willing payers such as 
those involving contractors that use commercial insurers or state funds 
likely to contest workers' compensation claims could be paid a federal 
benefit that approximates the amount that would have been received 
under the relevant state program.
    Option 2--Federal workers' compensation model. This option would 
move the administration of the Subtitle D benefit from the state 
programs entirely to the federal arena, but would retain the workers' 
compensation concept for providing partial replacement of lost wages as 
well as medical benefits. For example, claims with positive physician 
panel determination could be evaluated under the eligibility criteria 
of the Federal Employees Compensation Act\8\ and, if found eligible, 
could be paid benefits consistent with the criteria of that program.
---------------------------------------------------------------------------
    \8\ The Federal Employees' Compensation Act (5 U.S.C. 8101, et 
seq.) provides workers' compensation coverage for federal and postal 
employees, who are not covered by the stat programs.
---------------------------------------------------------------------------
    Option 3--Expanded Subtitle B program that does not use a workers' 
compensation model. Under this option, the current Subtitle 1 program 
would be expanded to include the other illnesses resulting from 
radiation and toxic exposures that are currently considered under the 
Subtitle D program. The Subtitle D program would be eliminated as a 
separate program and, if found eligible, claimants would receive a lump 
sum payment and coverage of future medical expenses related to the 
workers' illnesses, assuming they had not already received benefits 
under Subtitle B. The Department of Labor would need to expand its 
regulation: to specify which illnesses would be covered and the 
criteria for establishing eligibility for each of these illnesses. In 
addition, since the current programs have differing standards for 
determining whether the worker's illness was related to his 
employment,\9\ it would have to be decided which standard would be used 
for the new category of illnesses.
---------------------------------------------------------------------------
    \9\ Under Subtitle B, an individual with specified types of cancer 
shall be determined to have sustained that condition in the performance 
of duty if the cancer was at least as likely as not related to 
employment at a specified facility. Under Subtitle D, a physician panel 
must decide whether it is at least as likely as not that exposure to a 
toxic substance in the course of employment was a significant factor in 
aggravating, contributing to, or causing the illness or death of the 
worker.
---------------------------------------------------------------------------
    Option 4--New federal program that uses a different type of benefit 
structure. This option would address the willing payer issue as part of 
developing a new program that involves moving away from the workers' 
compensation and Subtitle B structures and establishing a new federal 
benefit administered by a structure that conforms to the type of this 
benefit and its eligibility criteria. This option would provide an 
opportunity to consider anew the purpose of the Subtitle D provisions. 
As a starting point, policymakers could consider different existing 
models such as the Radiation Exposure Compensation Act, designed to 
provide partial restitution to individuals whose health was put at risk 
because of their exposure even when their illnesses do not result in 
ongoing disability. But they could also choose to build an entirely new 
program that is not based on any existing model.

  VARIOUS ISSUES SHOULD BE CONSIDERED IN DECIDING WHETHER CHANGES ARE 
                    NEEDED AND ASSESSING THE OPTIONS

    In deciding whether and how to change the Subtitle D program to 
ensure source of benefit payments for claims that would be found 
eligible if they had a willing payer, policymakers will need to 
consider the trade-offs involved. Table 2 arrays the relevant issues to 
provide a framework for evaluating the range of options in a logical 
sequence. We have constructed the sequence of issues in this framework 
in terms of the purpose and type of benefit as being the focal point 
for the evaluation, with consideration of the other issues flowing from 
that first decision. For example, decisions about eligibility criteria 
would need to consider issues relating to within-state and across-state 
equity for Subtitle D claimants. The framework would also provide for 
decisions on issues such as the source of federal funding--trust fund 
or increased appropriations--and the appropriate federal agency to 
administer the benefit. For each of the options, the type of benefit 
would suggest which agency should be chosen to administer this benefit 
and would depend, in part, on an agency's capacity to administer 
benefit program. In examining these issues, the effects on federal 
costs would have to be carefully considered. Ultimately, policymakers 
will need to weigh the relative importance of these issues in deciding 
whether and how to proceed.

                      PURPOSE AND TYPE OF BENEFIT

    In evaluating how the purpose and type of benefit now available 
under Subtitle D could be changed, policymakers would first need to 
focus on the goals they wish to achieve in providing compensation to 
this group of individuals. If the goal is to compensate only those 
individuals who can demonstrate lost wages because of their illnesses, 
a recurring cash benefit in an amount that relates to former earnings 
might be in order and a workers' compensation option, either a state 
benefits with a federal back up or a federal workers' compensation 
benefit, would promote this purpose. If, on the other hand, the goal is 
to compensate claimants for all cases in which workers were disabled 
because of their employment--even when workers continue to work and 
have not lost wages--the option to expand Subtitle B would allow a 
benefit such as a flat payment amount not tied to former earnings.
    For consideration of a new federal program option, it might be 
useful to also consider other federal programs dealing with the 
consequences of exposure to radiation as a starting point. For example, 
the Radiation Exposure Compensation Act was designed to provide partial 
restitution to individuals whose health was put at risk because of 
their exposure. Similar to Subtitle B, the act created a federal trust 
fund, which provides for payments to individuals who can establish that 
they have certain diseases and that they were exposed to radiation at 
certain locations and at specified times. However, this payment is not 
dependent on demonstrating ongoing disability or actual losses 
resulting from the disease.

              ELIGIBILITY CRITERIA AND EQUITY OF OUTCOMES

    The options could also have different effects with respect to 
eligibility criteria and the equity of benefit outcomes for current 
Subtitle D claimants based on these criteria. By equity of outcomes, we 
mean that claimants with similar illnesses and circumstances receive 
similar benefit outcomes. The current program may not provide equity 
for all Subtitle D claimants within a state because a claim that has a 
willing payer could receive a different outcome than a similar claim 
that does not have a willing payer, but at least three of the options 
could provide within-state equity. With respect to across-state equity, 
the current program and the option to provide a federal back up to the 
state workers' compensation programs would not achieve equity for 
Subtitle D claimants in different states. In contrast, the option based 
on a federal workers' compensation model as well as the expanded 
Subtitle B option would be more successful in achieving across-state 
equity.\10\
---------------------------------------------------------------------------
    \10\ An additional within-state equity issue involves the 
comparative treatment of Subtitle D claimants and all other workers' 
compensation claimants in the same state.
---------------------------------------------------------------------------
    Regardless of the option, changes made to Subtitle D could also 
potentially result in differing treatment of claims decided before and 
after the implementation of the change. In addition, changing the 
program to remove the assistance in filing workers' compensation claims 
may be seer as depriving a claimant of an existing right. Further, any 
changes could also have implications beyond EEOICPA, to the extent that 
the changes to Subtitle D could establish precedents for federal 
compensation to private sector employees in other industries who were 
made ill by their employment.

                             FEDERAL COSTS

    Effects on federal costs would depend on the generosity of the 
benefit in the option chosen and the procedures established for 
processing claims for benefits. Under the current program, workers' 
compensation benefits that are paid without contest will come from 
contract dollars that ultimately come from federal sources--there is no 
specific federal appropriation for this purpose. Because all of the 
options are designed to improve the likelihood of payment for claimants 
who meet all other criteria, it is likely that federal costs would be 
higher for all options than under the current program. Specifically, 
federal costs would increase for the option to provide a federal back 
up to the state workers' compensation program because it would ensure 
payment at rates similar to the state programs for the significant 
minority of claimants whose claims are likely to be contested and 
possibly denied under the state programs. Further, the federal costs of 
adopting a federal workers' compensation option would be higher than 
under the first option because all claimants--those who would have been 
paid under the state programs as well as those whose claims would have 
been contested under the state programs--would be eligible for a 
federal benefit similar to the benefit for federal employees. I 
general, federal workers' compensation benefits are more generous than 
state benefits because they replaces a higher proportion of the 
worker's salary than many states and the federal maximum rate of wage 
replacement is higher than all the state maximum rates.
    For either of the two options above, a decision to offset the 
Subtitle D benefits against the Subtitle B benefit could lessen the 
effect of the increased costs, given reports by Energy officials that 
more than 90 percent of Subtitle D claimants have also filed for 
Subtitle B benefits.\11\ However, the degree of this effect is 
difficult to determine because many of the claimants who have filed 
under both programs may be denied Subtitle B benefits. The key 
distinction would be whether workers who sustained certain types of 
illnesses based on their Energy employment. should be compensated under 
both programs as opposed to recourse under only one or the other. If 
they were able to seek compensation from only one program, the 
claimant's ability to elect one or the other based on individual needs 
should be considered.
---------------------------------------------------------------------------
    \11\ Under the current Subtitle B and Subtitle D programs, benefits 
are not offset against each other.
---------------------------------------------------------------------------
    The effects on federal cost of an expanded Subtitle B option or a 
new federal program option are more difficult to assess. In many cases, 
the Subtitle B benefit of up to $150,000 could exceed the cost of the 
lifetime benefit for some claimants under either of the workers' 
compensation options, resulting in higher federal costs. However, the 
extent of these higher costs could be mitigated by the fact that many 
of the claimants who would have filed for both benefits in the current 
system would be eligible for only one cash benefit regardless of the 
number or type of illnesses. This degree of cost or savings would be 
difficult to assess without additional information on the specific 
claims outcomes in the current Subtitle B program. The effects on 
federal costs for the new federal program option--would depend on the 
type and generosity of the benefit selected.
    Mr. Chairman, this completes my prepared statement. I would be 
happy to respond to any questions you or other Members of the Committee 
may have at this time.

                    Table 1.--EXTENT TO WHICH CASES WILL POTENTIALLY BE CONTESTED IN 9 STATES
----------------------------------------------------------------------------------------------------------------
                                                                                        Number of
                               Willing payer       Types of       Energy facility,      cases as     Percentage
       Likely outcome            available      workers comp.           State          reported in   of cases in
                                                   coverage                            energy data    category
----------------------------------------------------------------------------------------------------------------
Contests are not likely
----------------------------------------------------------------------------------------------------------------
                              Yes............  Self-insurance.   Paducah          2,133         55%
                                                                 Gaseous Diffusion
                                                                 Plant, Kentucky \1\.
                                                                 Los Alamos       1,380
                                                                 National Lab, New
                                                                 Mexico.
                                                                 Oak Ridge K-     4,115
                                                                 25, X-10, and Y-12
                                                                 Plants, Tennessee.
                                                                 Hanford          1,798
                                                                 Site, Washington.
----------------------------------------------------------------------------------------------------------------
                                                                Subtotal............      9,426
----------------------------------------------------------------------------------------------------------------
                              No.............  Commercial        Idaho              849         25%
                                                policy,          National                 3,375
                                                insurer will     Engineering Lab,
                                                follow           Idaho.
                                                contractors      Savannah
                                                instruction to   River Site, South
                                                not contest.     Carolina.
----------------------------------------------------------------------------------------------------------------
                                                                Subtotal............      4,224
================================================================================================================
                                                                Subtotal............     13,650         80%
----------------------------------------------------------------------------------------------------------------
Contests Likely
----------------------------------------------------------------------------------------------------------------
                              No.............  Commercial        Rocky Flats      1,630
                                                policy.          Plant, Colorado.
----------------------------------------------------------------------------------------------------------------
                              No.............  State fund.....   Portsmouth         862
                                                                 Gaseous Diffusion
                                                                 Plant, Ohio.
                                                                 Feed               286
                                                                 Materials
                                                                 Production Center,
                                                                 Ohio.
                                                                 Mound               91
                                                                 Plant, Ohio.
----------------------------------------------------------------------------------------------------------------
                                                                Subtotal............      1,239
================================================================================================================
                              No.............  No current        Iowa               645
                                                contractor.      Ordnance Plant,
                                                                 Iowa.
================================================================================================================
                                                                Subtotal............      3,514         20%
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis of Energy data and interviews with current contractors and state officials.
Note: The table includes the cases from the facilities in these states with the largest number of cases filed
  but does not include the remaining 693 cases (4 percent) from other facilities in these states.
\1\ A total of 2,370 cases have been filed for the Paducah Gaseous Diffusion Plant, which has been operated
  since July 1998 by a private entity that leases the facility. Energy recently decided that workers who have
  only been employed by this private entity, and not by the prior contractors who operated the facility, will
  not be eligible for the program. An Energy contractor performing environmental cleanup at the site also
  employs workers at the facility. This contractor is reponsible for the workers' compensation claims filed by
  its employees as well as those filed by employees of the contractors who operated the facility prior to July
  1998. We apportioned 90 percent of the cases filed for the Paducah facility (2,133) to the cleanup contractor
  because the facility was run by the prior contractors for about 90 percent of its years in operation. We
  apportioned the remaining 10 percent of the cases (237) to the private entity and do not show these cases in
  the table, due to Energy's decision that claims filed by the entity's workers would be ineligible for the
  program. However, this apportionment involves some uncertainty because the clean up contractor has not had an
  opportunity to analyze the effects of Energy's policy decision.


                                       Table 2.--FRAMEWORK FOR EVALUATING OPTIONS TO CHANGE THE SUBTILE D PROGRAM
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Option 1--State       Option 2--Federal
                                         Current program      workers' compensation  workers' compensation    Option 3--Expanded   Option 4--New federal
                                                              with federal back-up           model            subtitle B program          benefit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Purpose and type of benefit........  Varies by state, but    Same as under current   Still a workers'       Same as for current    Open for
                                      generally inlcudes      state programs.         compensation           Subtitle B--coverage   consideration.
                                      medical treatement                              benefit, generally     of future medical
                                      and cash payments                               includes medical       treatment and a one-
                                      that partially                                  treatment and cash     tome payment of up
                                      replace lost wages.                             payments that          to $150,000 as
                                                                                      partially replace      compensation for
                                                                                      lost wages.            disability or death
                                                                                                             because of exposure
                                                                                                             to radiation or
                                                                                                             toxic substance.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Eligibility criteria...............  Vary by state, but      For federal back-up     Uses criteria of       Same as for current    Open for
                                      generally apply to      benefit, should be      workers'               subtitle B claimants   consideration--shoul
                                      workers who contract    similar to criteria     compensation program   who worked for         d flow from type of
                                      a work-related          under current state     for federal            Energy contractors.    benefit and the
                                      illness and who lose    programs.               employees.                                    nature of the
                                      work time because of                                                                          population it is
                                      the illness.                                                                                  designed to
                                                                                                                                    compensate.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Interaction with subtitle B........  Benefits are not        Open for consideration  Open for               No interaction         Open for
                                      offset against each                             consideration.         issues. Claimants      consideration.
                                      other.                                                                 would be eligible      Depends on the
                                                                                                             for only one payment   nature of the
                                                                                                             regardless of number   benefit.
                                                                                                             of illnesses.
                                                                                                             Because there is a
                                                                                                             large overlap in
                                                                                                             claimants filing
                                                                                                             under both programs,
                                                                                                             this could
                                                                                                             potentially reduce
                                                                                                             the total number of
                                                                                                             claims that would
                                                                                                             remain to be
                                                                                                             processed once
                                                                                                             combined.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Equity of outcomes within subtitle D

  within states                      Similar cases in the    Similar cases in the    Similar cases in the   Similar cases in the   Open for
                                      same state could        same state could        same state could       same state could       consideration.
                                      receive differing       receive similar         receive similar        receive similar
                                      benefits.               benefits regardless     benefits regardless    benefits regardless
                                                              of employer.            of employer.           of employer.
--------------------------------------------------------------------------------------------------------------------------------------------------------
  across states                      Similar casas in        Similar cases in        Similar cases in       Similar cases in       Open for
                                      different states        different states        different states       different states       consideration.
                                      could receive           could receive           could receive          could receive
                                      differing               differing               differing              differing
                                      compensation.           compensation.           compensation.          compensation.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Funding source for benefits........  Most eligible cases     Same as current         Would need new fedeal  Trust fund already     Open for
                                      with willing payers     program for cases       source.                established by         consideration--Appro
                                      will be paid by         with willing payer,                            section 3612 of        priations or trust
                                      contractors from        but would need a                               EEOICPA.               fund.
                                      contract funds from     source for federal
                                      federal sources.        back-up benefit.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal administrato...............  Energy................  For federal benefit,    Department of Labor/   Department of Labor--  Open for
                                                              selection criteria      Office of Workers'     same as current        consideration--depen
                                                              should include how      Compensation           Subtitle B program.    ds on type of
                                                              quickly agency could    administers current                           benefit, experience
                                                              implement and how       program; also                                 in administering
                                                              well it was situated    administers Subtitle                          benefit program, and
                                                              to process and pay      B program. Energy                             funding source.
                                                              cases. Energy would     would still need to
                                                              still need to secure    secure records.
                                                              records for all cases
                                                              and process claims
                                                              with willing payers.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Timeframe for implementation.......  Program is              Relatively short to     Longer than Option 1.  Longer than Option 1-- Potentially longest
                                      implemented, but few    implement since it is   Infrastructure in      structure in place     of all options.
                                      cases have been         based on existing       place but              to administer          Depends on
                                      completely processed.   program.                regulations for        existing Subtitle B    administrator and
                                                              Infrastructure would    existing federal       program--new rules     whether
                                                              have to be              workers'               need to be developed   infrastructure exits
                                                              established and rules   compensation program   for evaluating         or would need to be
                                                              developed to provide    would need to be       additional illnesses.  built. In either
                                                              for federal benefits    expanded to cover                             event, need to
                                                              that mirror those of    new benefit.                                  publish rules and
                                                              the state programs.                                                   establish
                                                                                                                                    procedures.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal cost.......................  For cases that are not  Federal costs could     Federal costs could    To the extent that     Open for
                                      contested, benefits     increase since          be greater than for    the option would       consideration--Depen
                                      that are paid will      benefits for cases      current program        ensure a source of     ds on type of
                                      ultimately come from    without willing         since benefits would   benefits, could        benefit and
                                      contract dollars from   payers would be paid    be based on the        increase federal       eligibility
                                      federal sources         directly from federal   often more generous    costs. However, the    criteria.
                                      (Energy and Defense).   funds.                  workers'               extent of these
                                                                                      compensation program   higher costs could
                                                                                      for federal workers.   be mitigated because
                                                                                                             many of the
                                                                                                             claimants who would
                                                                                                             have filed for
                                                                                                             Subtitle B and D
                                                                                                             benefits in the
                                                                                                             current system would
                                                                                                             be eligible for only
                                                                                                             one cash benefit
                                                                                                             regardless of the
                                                                                                             number or type of
                                                                                                             illnesses.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: GAO analysis.

    Senator Bunning. Thank you all for your testimony. Mr. 
Hallmark, what do you think about the Department of Energy's 
proposed Path Forward for processing claims? Do you believe 
that more money and more time are all DOE needs to succeed in 
processing subtitle D claims?
    Mr. Hallmark. Senator, we at the Department of Labor do 
support the reprogramming that DOE has asked for. I can't 
assess the overall nature of the Path Forward plan, but I can 
indicate that as we've seen today they've made some progress 
and DOL plans to, as I mentioned, work with DOE to try to 
enhance that process as well.
    Senator Bunning. Mr. Robertson, the DOE report shows that 
the Paducah plant cases will not have a willing payer problem 
that so many other sites will face. Yet at the hearing in 
November, GAO believed Paducah would have this issue. What has 
changed since your last testimony? Do you believe that DOE will 
be able to require all contractors and subcontractors for the 
Paducah plant to pay valid claims?
    Mr. Robertson. With my crystal ball I can't predict what's 
going to happen at Paducah specifically. But, as you've pointed 
out, just recently (within the last week or so) DOE did inform 
us that they are going to approach the Paducah plant 
differently than they had earlier, so that's the way we graded 
it out in our estimate.
    Senator Bunning. What does that mean in English?
    Mr. Robertson. Oh, okay. Basically what DOE told us is that 
the clean-up contractor that they had there will be responsible 
for all the employees who were working at the plant prior to, I 
believe it was 1998.
    Senator Bunning. In other words, Bechtel Jacobs is the 
contractor that they are speaking about?
    Mr. Robertson. Yes.
    Senator Bunning. Okay. In other words, they're going to 
assume the responsibility of all prior employees?
    Mr. Robertson. Well, as we point out in our statement, that 
is what the current situation is, and I'm----
    Senator Bunning. That's all you can report?
    Mr. Robertson. That's all we can report on.
    Senator Bunning. One more, Mr. Robinson. In your report, 
you say that 80 percent of claimants should not have a problem 
with a willing payer. You assume all workers worked for prime 
contractors rather than subcontractors. This distinction is 
very important since DOE can order and reimburse for many prime 
contractors' workers, but cannot order subcontractors to pay. 
Given the fact that there are hundreds of subcontractors used 
by DOE contractors, do you believe that the DOE estimate is 
high-end estimates?
    At previous hearings, DOE said 50 percent of claims would 
have no willing payer. Is 80 percent the right range or the 
high range? What would you estimate is the low end of this 
range?
    Mr. Robertson. I don't have an estimate for the low end. 
It's the best estimate we can make with the information that 
we've got now. We do caveat it as an order-of-magnitude 
estimate, and the fact of the matter is that, regardless of 
that, the estimate of the percentage of folks who don't have a 
willing payer, at 20 percent is still a large number of people 
who don't have a willing payer and that's----
    Senator Bunning. Absolutely, yes. Thank you.
    Dr. Howard, DOE says that amount physician panel doctors 
are paid is why they can't process more subtitle D claims.
    Do you feel that this is a problem? Do the doctors HHS 
qualifies to serve on physician panels express concern about 
the pay rate? Are you concerned that the DOE legislation, along 
with their recent rule revisions decreases the qualifications 
for individual doctors while removing the deliberative process? 
As a physician, how do you feel about DOE's proposals?
    Dr. Howard. Well, as a physician, of course, I support any 
increase in salary for physicians.
    Senator Bunning. Absolutely. We can understand that.
    [Laughter.]
    Dr. Howard. That goes without saying. But I think that what 
the act requires are physicians that have expertise and 
experience in diagnosing occupational illnesses, and that's 
what is our basis. We started out with physicians who have 5 
years of experience in the field in clinical occupational 
medicine. We've made every effort to make sure that we have--
giving them qualified physicians, keeping that statutory 
language in mind, so we have changed some of our eligibility 
criteria in order to increase the pipeline of physicians. So we 
certainly support any effort that they're making to utilize 
those physicians well that we're supplying in terms of our 
process, and we're doing everything possible to give them more.
    We're working, as Under Secretary Card said, with the 
American College of Occupational and Environmental Medicine, 
which is the largest group of professional societies, so we're 
trying to maximize their numbers.
    Senator Bunning. Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman. Mr. Hallmark, 
as you know, Senator Grassley and myself have proposed 
legislation that would transfer the authority to implement 
subpart B from DOE to DOL. Does the Department of Labor support 
our legislation?
    Mr. Hallmark. The administration position is that part D 
should remain at the Department of Energy and that is the 
position the Department of Labor supports.
    Senator Murkowski. Let's assume for discussion purposes 
that Congress should decide that the route that Senator 
Grassley and I are suggesting is the appropriate way to go, 
that in fact subpart B should be implemented by the Department 
of Labor. What issues would need to be resolved? How would we 
handle that transition?
    Mr. Hallmark. Well, obviously if the program were changed 
we would dig in and figure out a way to implement. The kinds of 
problems that would occur immediately, Senator, would be that 
this program is completely different than the workers' 
compensation programs we administer now because of the 
connection to the state workers' comp world and that delivery 
of a benefit through that second stage process. We don't have 
any experience in working with the State workers' comp systems, 
and so we would have to tool up to try to accomplish that. Plus 
the statute provides for DOE to instruct its contractors in 
certain ways to avoid defense, the issues you were raising 
earlier this morning. DOL would not have any capacity to coerce 
or influence DOE's contractors, and therefore, presumably DOE 
would have to continue to play that role, so any referral of 
part of the program to us would be partial and could create 
additional interaction issues and complexities.
    Senator Murkowski. Well, based on your testimony that you 
are currently providing assistance to the Department of Energy 
I think you indicated that you were helping them prioritize and 
certainly helping them with certain procedures, so it sounds 
like you're getting familiar with what they're doing, so if in 
fact we do go down this road, you'll be right up to speed, so 
thank you.
    Senator Bunning. Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman. Mr.
    Robertson, in your report on page 15 you said, several 
issues should be considered in evaluating options for improving 
the likelihood of willing payers. In that you discussed the 
length of time to implement changes, the criteria for 
determining who's eligible. I was interested in what you meant 
by criteria for determining who's eligible.
    Mr. Robertson. That's basically the criteria for 
determining who would be eligible for the benefits under the 
program. You can change that criteria, particularly if you 
start with the fourth option, which is starting from scratch. 
You can develop any new criteria that you want.
    Senator Cantwell. And that's one of the things you think we 
should consider?
    Mr. Robertson. I'm going to give you an answer that 
probably won't be fully satisfactory. We don't tell you what 
the right answer is or what the best program is. What I hope 
that we've done is provided a framework that will help you get 
to the program that you want. Frankly I was very pleased our 
staff put in a lot of effort the last few weeks trying to put 
this together for this hearing, and I think it came out pretty 
well.
    Senator Cantwell. I appreciate their work and your work on 
this, and one of those options that you outlined, option 3, 
expand title B program that does not use the worker 
compensation model, and then under that you said, under this 
option, the current subtitle B program would be expanded to 
include the other illnesses resulting from radiation and toxic 
exposure and they would be considered under subtitle D. The 
subtitle D program would be eliminated as a separate program 
and, if found eligible, claimants would receive a lump sum. So 
it sounds like under that scenario you're trying to streamline 
this program, recommending that's one of the options we should 
consider.
    Mr. Robertson. We're not recommending it as an option. What 
we're saying is, under that program, what you would be doing is 
taking subtitle B and expanding the number of illnesses that 
would be compensable under subtitle B to include those that you 
could receive compensation for under subtitle D. Basically you 
would move from a worker compensation type of a system where 
you're compensating people for a loss of wages to a lump sum 
payment.
    Senator Cantwell. And I know you're not necessarily 
advocating, but what's the benefit of that?
    Mr. Robertson. The benefit of going to the----
    Senator Cantwell. Of this option.
    Mr. Robertson. Well, there's some benefits and drawbacks. 
One of the benefits is that, in the equity arena, you'd have 
everybody getting the same type of compensation regardless of 
what state they lived in. If your purpose was to compensate 
people for an illness or a disability, as opposed to for lost 
wages, you would also be getting that. Those are some of the 
advantages of going to that type of a model. Plus you wouldn't 
be paying two benefits, one subtitle D and one subtitle B.
    Senator Cantwell. Which I'm assuming one of the reasons why 
you make the recommendation is the ease of which some of the 
processes happen under subtitle B, is that correct?
    Mr. Robertson. In some respects it would be a little bit 
easier, yes.
    Senator Cantwell. Thank you. Dr. Howard, I'm interested in 
your comments about the dose reconstruction that, if I'm 
tracking your testimony correctly, you seem to say has been 
done on an individual basis, is that correct?
    Mr. Hallmark. Yes.
    Senator Cantwell. And why are we doing that on an 
individual basis as opposed to a larger site dose 
reconstruction?
    Mr. Hallmark. I think the statute requires individual dose 
reconstruction. We're in that process of doing individual dose 
reconstructions. We are looking at site profiles that give us 
information about the exposure profile that individuals had who 
worked at specific sites, so we're trying to get some economies 
of scale there, but I'm almost certain that it's an individual 
dose reconstruction we have to construct or reconstruct.
    Senator Cantwell. I'm looking at this Defense authorization 
language in the 2004 budget, basically that says an 
identification of each matter adversely affecting the ability 
of the institute to obtain information. So basically what we're 
saying is, what is--I don't even know how you track this. When 
you go to an--in your individual reconstructions, what do you 
determine when you find that there's no information there? How 
do you grade that?
    Mr. Hallmark. Exactly. I think Mr. Elliott, our program 
director, I think has specific information about how we do 
that.
    Mr. Elliott. Yes, Senator. I think you're referring to the 
report that is due from us on matters that affect processing 
claims through dose reconstruction. That report has been 
prepared and it's in final review and should be forthcoming to 
the congressional committees that it will be submitted to.
    Specifically in response to your question, where we don't 
have information, where do we proceed, that's where the special 
exposure cohort and adding classes to that cohort would come to 
bear when we cannot do a dose reconstruction because we don't 
have sufficient information.
    Senator Cantwell. Are you recommending adding new cohorts?
    Mr. Elliott. Am I recommending?
    Senator Cantwell. Yes.
    Mr. Elliott. No, ma'am, I'm not. I'm simply stating that 
the special exposure cohort is an avenue for adding classes 
where we cannot do dose reconstructions.
    Senator Cantwell. Thank you, Mr. Chairman.
    Senator Bunning. Thank you, Senator. I'm not going to 
submit any more verbal questions to this panel. We may have 
some written questions that we will submit to you. Anyone 
wanting to submit further questions for the record should 
submit them to the committee by the close of business tomorrow. 
We stand adjourned.
    [Whereupon, at 12:07 p.m., the hearing was adjourned.]


                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

                                 General Accounting Office,
                                      Washington, DC, May 13, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Chairman Domenici: This information responds to your request 
to provide answers to written questions for the record regarding our 
testimony before the Committee on March 30, 2004 (GAO-04-571T). Please 
do not hesitate to call me on (202) 512-7215 or Andrew Sherrill on 
(202) 512-7252 if you have any questions or need further information.
            Sincerely yours,
                                       Robert E. Robertson,
        Director, Education, Workforce, and Income Security Issues.
[Enclosure.]
                    Questions From Senator Campbell
    Question 1. What, in GAO's opinion, are the main reasons DOE has 
not been productive in processing claims or moving them through the 
physicians panels?
    Answer. Two main factors have affected Energy's productivity: a 
slow start in developing its case processing operations and 
difficulties finding a sufficient number of physicians to serve on 
physician panels. Although Energy's regulations for this program became 
effective in September 2002, the agency had not secured sufficient 
staff to meet its goal of completing development on 100 cases a week. 
Space limitations delayed the hiring of additional staff until the fall 
of 2003. By November 2003, Energy was meeting its goal of having 100 
cases a week ready for physician panel review.
    Processing was also delayed because Energy's original regulations 
required that a panel of three physicians review each case and the 
agency was unable to locate enough qualified physicians to perform this 
review. To expedite the process, Energy has recently published new 
rules to reduce the number of physicians on each panel, worked with the 
National Institute for Occupational Safety and Health to modify the 
qualifications for panel physicians and to encourage recruitment of 
full-time physicians, and developed a legislative proposal to eliminate 
the cap on the rate of pay for these physicians. However, it is too 
soon to assess the extent to which these efforts will improve the 
processing of cases.
    Question 2. GAO has overseen other benefit programs. In terms of 
productivity, how do they compare with DOE's program?
    Answer. It is difficult to compare processing productivity of 
different benefit programs because they often differ considerably in 
the activities involved in processing claims. For example, many EEOICPA 
Subtitle B claims can be processed without making a determination about 
whether exposure was sufficient to have caused an illness (i.e., 
without performing what is called a ``dose reconstruction''), whereas 
all eligible Subtitle D claims require a review and determination by a 
physician panel. In addition, while the Subtitle B program deals with 
certain specified illnesses related to exposure to radiation, 
beryllium, and silica dust, the Subtitle D program must evaluate a 
broader range of illnesses related to toxic exposures to radiation, 
chemicals, and biological substances. In light of differences such as 
these, GAO has not attempted to directly compare the productivity of 
the Subtitle D program with that of other claims processing programs.
    Question 3. DOE asserts its program is far more complex than that 
at DOL and this explains the delays. Do all claims require research 
through 50 years of records, or is this only a small fraction?
    Answer. The Subtitle D program may be more complex to the extent 
that Energy must evaluate a broader range of illnesses, which are 
related to exposure to radiation, chemicals, and biological substances, 
than the Subtitle B program. However, this alone would not account for 
the delays in processing. The need to locate records that are decades 
old would probably not explain much of the difference in processing 
times between Subtitle B and D because there is over a 90 percent 
overlap of cases in the two programs, according to the Energy 
officials.
    Question 4. Is the DOE staff qualified to run this program? Is the 
DOE's contractor qualified to run this program?
    Answer. The Department of Energy did not have prior experience 
operating a workers' compensation program and this probably contributed 
to its slow start in developing its case processing operations. 
However, GAO has not reviewed in detail the qualifications of Energy 
and its contractor staff that operate the Subtitle D program.

                    Question From Senator Alexander

    Question 1. Subtitle D was not intended to be an entitlement 
program. Given this fact, of the four options proposed by the GAO for 
improving the program, which option would the GAO recommend that 
Congress pursue?
    Answer. GAO is not recommending any particular option for making 
this policy decision. GAO developed the four options in response to our 
finding that under the current program, a significant minority of 
Subtitle D state workers' compensation claims are likely to lack 
willing payers and be contested, which could result in inequitable 
treatment of claimants across--and in some cases within--states. 
Moreover, our March 30 testimony also provided a framework to assist 
policymakers in considering the issues most pertinent to assessing the 
options.

                     Questions From Senator Bunning

    Question 1a. Mr. Robertson, you testified that GAO's opinion about 
whether Kentucky claimants have a willing DOE payer changed between 
November 2003 and March 2004. Could you please explain further what 
evidence of a willing payer DOE has provided to the GAO? Can you 
provide copies of that evidence to this committee?
    Answer. Energy officials informed GAO in March 2004 about a 
recently made policy decision that could affect the Subtitle D 
eligibility of some current or former workers at the Paducah Gaseous 
Diffusion Plant. Specifically, Energy officials decided that 
individuals who had worked only for USEC, and not for any prior Energy 
contractor, would not be considered Energy employees under the Subtitle 
D program and such individuals would be ineligible for Energy's 
assistance in filing claims for workers' compensation. Further, these 
officials stated that, for Subtitle D claimants with positive physician 
panel determinations based on work at the Paducah plant prior to mid-
1998, Energy would order Bechtel Jacobs Company, the clean-up 
contractor at Paducah, to not contest the claims for workers' 
compensation. Our testimony was based on these statements and not on 
documents provided by Energy.
    Question 1b. Mr. Robertson, do you believe that DOE will be able to 
require all contractors and subcontractors for the Paducah plant to pay 
valid claims?
    Answer. Based on recent interviews with Energy officials and 
officials of the Bechtel Jacobs Company, the clean-up contractor at 
Paducah, we believe that Energy will be able to require Bechtel Jacobs 
to pay valid claims of its own employees and those of prior contractors 
through September 30, 2004. However, Bechtel Jacobs is not competing 
for new contracts that will be awarded to perform clean-up work 
beginning October 1, 2004. While Energy officials are pursuing 
negotiations with Bechtel Jacobs to continue handling workers' 
compensation claims at Paducah after September 30, these negotiations 
have not been completed. Thus, it is unclear at this point whether 
Energy will continue to be able to require that the valid claims of 
contractor employees from Paducah be paid.
    With regard to issue of subcontractors, we are unable to provide 
information as to whether subcontractor employees at Paducah have filed 
claims under Subtitle D and, if so, the status of these claims, because 
of limitations of the data in Energy's case management system (see 
responses to the following 3 questions for more details).
    Question 2. Mr. Robertson, in your report, you assume (footnote--
page 13) that all claimants worked for prime contractors rather than 
subcontractors. DOE can order and reimburse for many prime contractor 
workers, but cannot order subcontractors to accept claims in many 
instances. Why, given the DOE's touted multimillion dollar SEA database 
improvement, do you have to assume anything at all?
    Answer. We made this assumption about prime contractors because 
Energy's case management system does not enable us to systematically 
identify those claims that involve subcontractors. Insufficient 
strategic planning regarding system design, data collection, and 
tracking of outcomes has made it more difficult for Energy officials to 
manage some aspects of the program. The data system used by Energy to 
aid in case management was developed by contractors without detailed 
specifications from Energy. In addition, because it did not adequately 
plan for the various uses of its data, Energy lacks some of the data 
needed to analyze how cases will fare when they enter the state 
workers' compensation systems. Specifically, it is difficult for Energy 
to predict whether willing payers of workers' compensation benefits 
will exist using case management system data because the information 
about the specific employer for whom the claimant worked, such as the 
employer's status as a prime contractor or a subcontractor, is not 
collected in a format that can be systematically analyzed and 
aggregated.
    Question 3. Mr. Robertson, what information was the DOE missing 
which caused GAO to make the assumption discussed in question 2?
    Answer. Energy's case management system was not designed to collect 
information about the worker's employer in a format that could be 
systematically analyzed, and as a result, GAO lacks an empirical basis 
for estimating the percentage of claims that involve subcontractors. 
Instead, information about employers is collected in text fields of up 
to 1,000 characters. Such information would have to be analyzed on a 
case-by-case basis for more than 23,000 cases to determine the names of 
the employers involved in these cases.
    Question 4. Can the GAO identify, in the DOE data system, if a 
claimant worked for a prime contractor or a subcontractor? Is there any 
case or claim operation with which you are familiar, where the data can 
not tell the basic essential information about the claimants?
    Answer. GAO cannot determine such information about claimants' 
employers using Energy's case management system. As stated above, 
Energy's system does not capture information about the worker's 
employer or employers in a format that could be systematically 
analyzed. In addition, the system does not include information on 
whether the employer was a prime contractor or a subcontractor. Energy 
has to access sources of information outside the case management system 
to determine whether an employer was a prime contractor or a 
subcontractor.
    Question 5. If the GAO estimate that 80% of workers having a 
willing payer is the high end of the range of the number of claims with 
payers, could GAO please estimate the low end of the same range?
    Answer. It is difficult to estimate the low end of the range 
because of data limitations and because the estimates could change as 
circumstances change. Because of data limitations, we assumed that: (1) 
all cases filed would receive a positive determination by a physician 
panel, (2) all workers lost wages because of the illness and were not 
previously compensated for this loss, and (3) in all cases, the primary 
contractor rather than a subcontractor at the Energy facility employed 
the worker. While we believe that the first two assumptions would not 
substantially affect the proportions shown in each category, the third 
assumption could result in an underestimate of the proportion of cases 
lacking willing payers to the extent that some workers may have been 
employed by subcontractors that used commercial insurers or state funds 
for workers' compensation coverage. Some subcontractors use these 
methods of workers' compensation coverage because they may not employ 
enough workers to qualify for self-insurance under some state workers' 
compensation programs. However, GAO lacks any empirical basis for 
estimating the percentage of claims that involve subcontractors.
    The situation at Paducah described in our response to your question 
1b above is an example of a potential change in circumstances that 
could affect our estimates. In the event that Energy is unable to 
continue to require that a current contractor pay the valid workers' 
compensation claims of contractor employees from Paducah, these cases 
would no longer have a willing payer. As a result, our estimate of the 
proportion of cases for which contests are likely in the 9 states we 
examined could increase from 20 to 33 percent.
    Question 5a. Previously, DOE said 50% of claims would have no 
willing payer. Why do you believe the GAO estimate is so different from 
the DOE estimate?
    Answer. In our interviews, Energy officials have refrained from 
estimating the number of claims that would have no willing payers 
because they said they have not performed the necessary analysis to 
determine such an estimate. In addition, these officials have stated 
that they are unable to locate the source of the 50 percent estimate 
that has been attributed to Energy.
    Question 6. Mr. Robertson, Mr. Card testified that claims 
processing work is better done by contractors than by the government. 
He also stated that DOL was going to help DOE with the claims operation 
due to the DOL's extensive experience in the field. Do you believe that 
government is unable or unqualified to process claims? Is this true for 
EEOICPA subtitle D claims?
    Answer. We do not believe that either contractors or government has 
any inherent advantage over the other in performing claims processing 
work. In our view, the factors that determine how well an entity 
performs such work are more likely to pertain to characteristics such 
as extent of prior experience with this type of work, staff 
qualifications, information systems capabilities, and overall 
managerial expertise.
    Question 7. Mr. Robertson, what would you estimate is the cost of 
the DOL preparing the claims for panel review under Subtitle B compared 
with SEA's costs of operation under Subtitle D?
    Answer. GAO has not performed the analysis that would allow us to 
make such a cost comparison.

                    Questions From Senator Bingaman

    Question 1. You determine on page 12 that approximately 20 percent 
of all cases under this program may lack a willing payer. How did you 
arrive at this determination and does it cover subcontractors to the 
main DOE contractor?
    Answer. As indicated above, because of data limitations, we assumed 
that: (1) all cases filed would receive a positive determination by a 
physician panel, (2) all workers lost wages because of the illness and 
were not previously compensated for this loss, and (3) in all cases, 
the primary contractor rather than a subcontractor at the Energy 
facility employed the worker. With regard to the third assumption, GAO 
lacked any empirical basis for estimating the percentage of claims 
involving subcontractors because Energy's case management system cannot 
provide aggregated data on this factor. The third assumption could 
result in an underestimate of the proportion of cases lacking willing 
payers to the extent that some workers may have been employed by 
subcontractors that used commercial insurers or state funds for 
workers' compensation coverage.
    Question 2. You note in your report on page 5, that ``each of the 
50 states and the District of Columbia has its own workers' 
compensation program'', which indicates to me a large variation in the 
manner that a sick atomic worker may be compensated when cleared by the 
DOE physician panel. Can you please comment what the effect of this 
variation has on the ability of the DOE program to equitably compensate 
sick workers across the U.S.?
    Answer. Because of the variations in the state workers' 
compensation programs, workers with similar work histories and similar 
illnesses living in different states could receive different amounts of 
compensation. In addition, the current program may not provide equity 
for all Subtitle D claimants because a claim that has a willing payer 
could receive a different outcome than a similar claim that does not 
have a willing payer.
    Question 3. The DOE is proposing legislation to increase the pay of 
the physicians that will serve on their panels. Do you believe the 
proposed increase in pay for physicians will solve the lack of skilled 
physicians?
    Answer. While we think that raising the pay for physicians is 
likely to help improve the situation, we do not believe that this 
change alone will elicit the numbers of physicians that Energy has 
projected are needed to eliminate the backlog of cases for the 
physician panels. NIOSH has projected that the pool of physicians with 
the appropriate credentials and experience is limited. Moreover, we do 
not have data on the extent to which the current cap on physician pay 
has deterred qualified physicians from agreeing to serve on the panels.
    Question 4. Your Table 2 lists four options to consider the willing 
payer problem. How hard would it be to estimate the cost of these 
options?
    Answer. It would be a challenge to estimate the costs of these 
options with currently available information. Additional information 
about the overlap of Subtitle B and Subtitle D claimants and additional 
information about the provisions and benefits of the state workers' 
compensation programs during the past 60 years would be necessary to 
begin estimating costs of the options. In addition, with some 
additional information about the status of employers as prime 
contractors or subcontractors, it might be possible to develop several 
alternative assumptions about the mix of contractors and 
subcontractors, and then perform sensitivity analyses to determine how 
much these alternative assumptions would affect the cost estimates for 
some of the options.

                       Question From Senator Reid

    Question 1. Some claims filed under Subtitle D from the Nevada Test 
Site lack a willing payor, which means that even if the DOE processes 
their claims, they will not receive compensation. If we do not provide 
federal compensation for these claims, are there other ways they would 
receive compensation?
    Answer. Claimants with workers compensation claims may also be 
eligible for a lump sum and medical benefits under Subtitle B or, in 
the case of the Nevada Test Site, under the Radiation Exposure 
Compensation Act. However, with respect to workers compensation for 
Subtitle D claimants, we believe that valid claims that are not honored 
because of the lack of a willing payer could only be paid with some 
form of federal compensation. Each of the four options for addressing 
the willing payer issue that we outlined in our March 30 testimony 
would involve providing federal compensation for claims that lack 
willing payers. There have been other attempts to address the willing 
payer issue but to date they have not been successful. For example, the 
state of Ohio requested that Energy contract with the state to provide 
third party administrator services on Subtitle D workers' compensation 
claims and to serve as a conduit for payment of compensation from 
Energy funds. However, these other attempts to address the issue would 
also involve using some mechanism that provides federal compensation.
                                 ______
                                 
                               Department of Labor,
                  Office of Workers' Compensation Programs,
                                     Washington, DC, June 22, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Chairman Domenici: I am writing in reply to your letter dated 
April 6, 2004, in which you requested responses to a list of questions 
that were submitted following my testimony before the Senate Committee 
on Energy and Natural Resources on March 30, 2004.
    Enclosed are our answers to those questions. I appreciated the 
opportunity to appear before the Committee. Please let me know if you 
have any further questions.
            Sincerely,
                                           Shelby Hallmark,
                                                          Director.
[Enclosure.]

                    Questions From Senator Alexander

    Question 1. Did the Department of Energy ask the Department of 
Labor for a detailed cost analysis of the DOL claims processing 
program?
    Answer. DOE did not request detailed information relating to the 
cost associated with the DOL claims processing programs.
    Question 2. Does DOL concur with the DOE's views that the DOE 
claims processing costs are actually less than those for the DOL?
    Answer. It is not clear that DOE has expressed the opinion that the 
DOE claims processing costs are actually less than those for DOL. They 
have advised us that the Federal employee costs they compared to their 
contractors during the hearing were derived from an A-76 analysis using 
DOE Federal positions. We have no specific cost data relating to either 
the Federal comparative model or the contractor based claims processing 
in the Part D EEOICPA Program. However, we are confident that the 
structure established for Part B claims adjudication utilized the 
decades of DOL compensation experience to develop the most cost 
effective approaches for all aspects of adjudicating these claims. As 
we gain experience with the EEOICPA program, we modify our processes to 
ensure that claims are processed in a timely and effective manner at 
the least cost possible. The two programs are different, and costs are 
thus not directly comparable.
    Question 3. What would be the cost to DOL for taking over the 
claims processing for Subtitle D?
    Answer. DOL is not in a position to estimate costs of such a 
transfer. Part D was assigned to DOE by the EEOICPA statute, and 
transferring that program to DOL would entail several different 
possible sets of changes, each of which would have different cost 
implications. Unless the Part D program were restructured in 
fundamental ways, certain aspects of Part D claim processing would have 
to remain with DOE. Attempting to calculate the cost for DOL to take 
over a to-be-specified portion of part D claims processing would be 
speculative. Further, the Administration believes responsibility for 
Part D claims processing should remain within DOE.
    Question 4. Does the DOL think that creating site profiles for 
toxic exposures would be as effective as those for radiation exposures?
    Answer. Regulatory requirements for the collection and maintenance 
of information relevant to ionizing radiation exposures predate and are 
more extensive and stringent than such requirements for occupational 
exposures to other potentially toxic chemicals and substances covered 
under Subtitle D. Because of data limitations, the development of 
profiles of toxic exposures at worksites, referred to as job-exposure 
matrices, can be exceptionally difficult, labor intensive, and 
expensive, if they are scientifically feasible at all.

                     Questions From Senator Bunning

    Question 1. Mr. Hallmark, what do you think about the Department of 
Energy's proposed Path Forward for processing claims?
    Answer. DOL supports DOE's efforts as outlined in the proposed 
``Path Forward.'' We believe the plan will expedite case processing and 
physician panel determinations of causation.
    Question 2. Mr. Hallmark, do you believe that the DOE rule along 
with their proposed legislation will solve the operational problems 
that have made DOE totally ineffective in overseeing Subtitle D?
    Answer. We support the DOE proposed legislation and believe the 
legislation and the rule will improve Part D processing. However, it is 
recognized that those measures are not intended to fix all aspects of 
Part D. DOL agrees with DOE that additional progress can be made 
through procedural streamlining and other initiatives and, if fact, DOE 
has already implemented some of these changes.
    Question 3. Mr. Hallmark, do you believe that more money and more 
time are all DOE needs to succeed in processing Subtitle D claims?
    Answer. We acknowledge that additional funding for continued 
processing of Part D claims will be beneficial in addressing the need 
to process large numbers of claims as quickly as possible. Even with 
procedural, regulatory, and statutory improvements, the current backlog 
of Part D claims will require additional resources, and additional 
time, to resolve. The pace of claims processing has already picked up, 
and with additional resources, expanded physicians panel availability 
and efficiency, and improved policies and procedures, DOE should be 
able to obtain panel determination within the time frames projected in 
its ``Path Forward.''
    Question 4. Mr. Hallmark, what changes would you propose, including 
those requiring statute or rule changes, to improve the DOE claims 
operation?
    Answer. As noted, DOL supports the improvements DOE has proposed, 
and we are prepared to provide senior policy and procedural experts to 
assist DOE in improving the processes as outlined in DOE's ``Path 
Forward.'' Until our staff have studied the Part D process more closely 
and consulted with DOE regarding potential process changes, it would be 
premature to suggest specific process or policy improvements.
    Question 5. Mr. Hallmark, do you believe, as Mr. Card testified, 
that DOE facility site profiles are not important for physician panel 
reviews for which DOE is responsible and are not more relevant for 
Subtitle B cases versus Subtitle D cases?
    Answer. We believe site profiles may be helpful in expediting case 
processing and ensuring greater consistency. Where profile information 
is already available or can be gathered quickly, provision of this 
information could significantly enhance the physician panels' review of 
cases. DOL is not fully informed about the extent to which such 
materials may be available, however. We believe that provision of 
``accepted facts'' to the panels--for example, the degree of likely 
exposure to a specific chemical at a site or building--would be a major 
step in improving the overall Part D process. Site profiles may be an 
effective means of generalizing such factual frameworks for large 
groups of claims in relatively short order.
    Question 6. Mr. Hallmark, Mr. Card testified that claims processing 
is better done by contractors than by government. He also stated that 
DOL was going to help DOE with claims operation due to DOL's extensive 
experience in the field. Do you believe that government is unable or 
unqualified to process claims? Is this true for Subtitle D claims?
    Answer. DOL has a long record of successful claims processing 
utilizing a mix of government and private sector staff. Since DOE had 
no pool of Federal staff with claims processing experience, we would 
not argue with DOE's decision to utilize primarily contractor staff.
    Question 7. Mr. Hallmark, what would you estimate is the cost of 
the DOL preparing the claims for panel review under Subtitle B compared 
with SEA's costs of operation under Subtitle D?
    Answer. Case processing under the two parts of EEOICPA is 
substantially different, and costs are not directly comparable. For 
example, DOL does not utilize ``panel review"' for Part B cases; 
instead, our district offices prepare ``recommended decisions'' which 
are later reviewed and finalized by our Final Adjudication Branch. To 
date, our cost to produce Part B recommended decisions--excluding dose 
reconstruction costs--has been $1,366 per case. This figure is based on 
the full FY 2001-2003 costs for running our four district offices, plus 
a proportional share of the total Information Technology budget, 
divided by the number of claims processed during that time.

                    Questions From Senator Bingaman

    Question 1. Would the Department of Labor support establishing an 
ombudsman's office to help sick atomic workers appeal their claims if 
they are denied?
    Answer. To date, DOL has not found that there is a need for an 
ombudsman office to assist claimants in navigating the Part B system. 
Extensive outreach has been provided to claimants and their families, 
both by our district office staff and via the Energy Compensation 
Resource Centers run jointly by DOL and DOE, to get them started in the 
program. Most importantly, Part B is a non-adversarial process--there 
is no adversarial party (such as an insurer or employer) who engages in 
defense against the claim as it moves through the decision process. DOL 
staff carefully outline claimants' appeal rights in conjunction with 
any negative determination. DOL has made special efforts to ensure that 
decisions are written in plain language and clearly explain the reasons 
the specific outcome was reached. The program is in fact specifically 
designed to be clear enough that an individual does not need to resort 
to an attorney or other representative to obtain a full and complete 
airing of their case. Likewise, the NIOSH dose reconstruction process 
has been designed to provide claimants with extensive opportunities to 
provide input and to request clarification regarding the NIOSH 
findings.
    Question 2. How hard would it be for the Department to administer a 
special set of cohorts related to toxic substances such as asbestos or 
mercury similar to the radiation cancer cohorts?
    Answer. Congress specified benefits for DOE weapons workers for 
three conditions under Part B--radiation induced cancer, beryllium 
disease, and silicosis for certain miners. It specified presumption of 
causation for certain cohorts of radiation-exposed workers. Absent 
specific provisions, we cannot evaluate potential implementation 
problems or issues associated with additional special cohorts. As a 
general matter, however, workers' compensation adjudication is based on 
a case-by-case examination of the causal relationship between workplace 
exposures and a medical condition. Application of presumptive criteria 
for groups of claims may yield positive determinations for claims which 
are not as meritorious as claims which fall outside the ``cohort'' and 
are denied based on an evaluation of the individual facts of those 
cases. Further, the Administration would oppose extending federal 
compensation under Part B to diseases resulting from asbestos, mercury, 
and other hazards not unique to our Nation's nuclear weapons program.

                     Questions From Senator Schumer

    Question 1. Western New York is home to 14 Atomic Weapons Employers 
(AWE) sites and DOE clean up facilities. Yet the only assistance 
applicants receive is from a traveling resource center that comes to 
the area too infrequently to effectively serve current and former 
nuclear workers. Would you support the installation of a permanent 
resource center to serve Western New York?
    Answer. As noted, Western New York is home to many Atomic Weapons 
Employer (AWE) sites. However, many of these sites have been closed for 
some time. Since the inception of the program, we have been actively 
searching for any former workers that may have been employed during a 
covered time period at these facilities, or their survivors.
    To ensure adequate assistance to potential claimants in New York, 
we have conducted several ``traveling'' resource center events to help 
individuals who have questions about the program and want to file a 
claim for benefits. The frequency of these traveling resource centers 
is determined primarily by the number of individuals who attend. Over 
the past three years, we have been to the, state of New York on six 
separate occasions, and have generated a number of claims through this 
process.

   Buffalo, NY (November 2001)--391 claimants assisted
   Buffalo, NY (December 2001)--154 claimants assisted
   Buffalo, NY (May 2002)--68 claimants assisted
   Long Island, NY (April 2002)--7 claimants assisted
   Amherst, NY (October 2003)--61 claimants assisted
   Springville, NY (October 2003)--23 claimants assisted

    While we continue to view Western New York as a top priority for 
additional traveling resource centers, the declining attendance at more 
recent visits suggests that alternative forms of outreach may be needed 
at this time. We look forward to working with your staff to identify 
the best means of bringing assistance to potential EEOICPA claimants in 
New York State.
    Question 2. How does the cost of claims processing in DOL compare 
with DOE? Which agency is more cost effective?
    Answer. DOL does not have sufficient information to compare DOL and 
DOE claims processing, and in any case, the two programs are quite 
different.

                    Questions From Senator Cantwell

    Question 1. Under the Fiscal Year 2004 Defense Authorization Act, 
DOL was required to deliver, by February 22, a report on EEOICPA. To my 
knowledge, DOL has yet to issue that report. Would you please provide 
it to this Committee? If it is not yet available, when do you expect it 
to be issued?
    Answer. The subject report is in final review and will be issued in 
the very near future.
    Question 2. How many cases have been filed under EEOICPA Subtitle B 
for workers with Chronic Lymphocytic Leukemia (CLL), formerly employed 
at facilities covered by the Act?
    Answer. As of April 12, 2004, there are 148 CLL cases with a final 
decision. Some 55 additional CLL cases are currently pending dose 
reconstruction at NIOSH, because the case also involves a claim of at 
least one other cancer.
    Question 3. What is the DOL's administrative cost per claim 
processed (excluding funds transferred to NIOSH or other agencies)?
    Answer. The average total administrative cost per claim during FY 
'01-'03 was $2,904. This amount does not include amounts transferred to 
HHS. It does include a proportional cost for DOL's share of the 
Resource Centers' operations, issuing recommended and final decisions, 
processing compensation and medical bill payments, conducting outreach 
and training, legal services, developing policies and procedures, and 
all automated systems, including the case management system.
    Question 4. How much has DOL transferred to NIOSH in the previous 
four Fiscal Years? How much does DOL project transferring in Fiscal 
Year 2005?
    Answer. DOL has transferred $103,708,000 to HHS to date, as 
follows:

   FY 01 $10,000,000
   FY 02 $37,538,000
   FY 03 $18,000,000
   FY 04 $38,170,000

    Under the President's FY 2005 Budget, DOL projects that $30,400,000 
will be transferred to HHS. It should be noted that funds transferred 
to HHS have not been fully expended in the year in which they were 
transferred. In fiscal years 2002 and 2003, HHS covered its operational 
costs with a combination of new and carryover budget authority. The FY 
2004 and 2005 Budgets requested no new budget authority for HHS 
activities-they will be supported with carryover balances.
    Question 5. What is the cost of the development of software for 
Subtitle B? Can it be used for processing claims under Subtitle D if 
such program were transferred to DOL?
    Answer. The FY 2001 DOL/DEEOIC cost of $1.2 million represents the 
total outlays for planning, designing, developing, testing, 
implementing and maintaining the initial software release of ECMS 
(Energy Case Management System, deployed on July 31, 2001). These costs 
were spread out over the first nine calendar months of 2001.
    The total costs to DOL/DEEOIC in FY 2001 for all other IT related 
projects and support were significantly more: nearly $6.5 million. 
These costs represent extensive acquisition and maintenance costs for 
network, infrastructure and desktop hardware, equipment, devices and 
non-ECMS software; labor costs for contract technical support in the 
district offices; and costs for planning and acquisition of the system 
and support for DEEOIC medical bill processing and operations.
    DOL's ECMS was designed to address the Part B program, and would 
have to be adapted to accommodate Part D. The system would require 
modification to capture data relating to the specific processing stages 
of the Part D program (whatever those might be determined to be), to 
clearly identify which cases have been filed under Part B, Part D, or 
both, and probably to provide additional data regarding medical 
conditions and exposures not covered under Part B.
    Question 6. If Subtitle D were transferred to DOL, with 
responsibility for serving as claims processor and the willing payer, 
how many additional staff would DOL require? What would the incremental 
increase, in projected administrative budgets, be for Fiscal Years 2005 
and 2006?
    Answer. Without knowing the details of such a transfer, and the 
nature of the program changes it would entail, it is not currently 
feasible to project associated staff or resource needs.
    Question 7. Please provide an account of DOL's outreach efforts to 
former Hanford workers who may be eligible for compensation under 
EEOICPA. Does the DOL plan to expand its outreach efforts, during this 
Fiscal Year, at Hanford and elsewhere?
    Answer. DOL and DOE have jointly conducted significant outreach to 
potential claimants since the inception of the program, conducting over 
600 public meetings and traveling resource centers throughout the 
country. During Fiscal Year 2004, we have implemented an even more 
aggressive outreach program nationwide to inform potential claimants of 
the availability and requirements of the EEOICPA and to provide 
assistance in filing claims. A key component of our enhanced efforts is 
an expanded role for participation of stakeholders in the process.
    We have been particularly active in outreach at Hanford since the 
number of claims received from workers at this facility is 
significantly less than expected. A recent effort was conducted in 
cooperation with the PACE local at Hanford that has been very 
successful in the initial phases. We plan to continue these efforts to 
ensure that we reach as many potential claimants as possible. Our 
Seattle district office is working directly with the Richland resource 
center to create a more dynamic and effective outreach program in that 
community. We are also working closely with the Center to Protect 
Workers' Rights, a research and development arm of the Building and 
Construction Trades Division of the AFL-CIO, to obtain better 
information about construction workers at Hanford and elsewhere.
    Question 8. I have heard from some of my constituents that, even 
after they are deemed eligible for coverage under DOL's program--either 
for beryllium sensitivity monitoring or other covered illnesses--it is 
difficult to find providers that recognize the DOL system of payment 
for medical care. What is the most appropriate way to address this 
problem?
    Answer. DOL has undertaken significant outreach activities to 
providers in an effort to advise them about the program and assist 
there with enrollment. DOL/DEEOIC officials have traveled throughout 
the country, to educate and encourage medical providers about this new 
program and new payment process. In addition, last year DOL began 
sending out Medical Benefits Identification Cards (MBIC) to each 
employee who receives benefits under the EEOICPA. As of this date, 
every covered employee has received the MBIC card. This card, which the 
claimant can present to his or her medical providers to demonstrate 
coverage, includes the case number, covered condition for which DOL is 
committed to pay, and the address to which bills should be mailed. 
Concurrent with the issuing of these cards, DOL calls every employee to 
discuss the billing procedures and request the names and phone numbers 
of the providers to contact. In turn, we contact the claimant's 
providers directly and advise them about the EEOICPA Program and 
enrollment information. This practice is of course ongoing as new 
claims are accepted. Furthermore, DOL has established a system whereby 
third party providers (such as ORISE) may be reimbursed for any bills 
paid directly by their program. In addition, we have established a 
memorandum of understanding with the State of Ohio to ensure that bills 
payable by EEOICPA, that are submitted through Ohio State Workers' 
Compensation system, will be promptly paid by DOL. Finally, if any 
specific billing problems arise, DOL responds and resolves the issues 
as quickly as possible. We will continue to reach out to all 
stakeholder groups to encourage them to advise eligible claimants and 
their medical providers to fully utilize this valuable benefit.

                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

                        HOUSE JOINT MEMORIAL 16
       46TH LEGISLATURE--STATE OF NEW MEXICO--FIRST SESSION, 2003

                     INTRODUCED BY RAYMOND M. RUIZ

  A JOINT MEMORIAL REQUESTING THE STATE'S CONGRESSIONAL DELEGATION TO 
     SUPPORT REFORMS TO THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS 
                    COMPENSATION PROGRAM ACT OF 2000
    WHEREAS, the federal Energy Employees Occupational Illness 
Compensation Program Act of 2000 was enacted to provide compensation to 
those veterans of the cold war who were employed by the United States 
department of energy and who were made ill from exposure to radiation, 
beryllium and other toxic substances; and
    WHEREAS, the number of New Mexicans who have received benefits 
pursuant to that act is small compared to the number of recipients in 
other states; and
    WHEREAS, on August 14, 2002, the United States department of energy 
issued regulations to implement a portion of that act to provide 
physician-panel determinations on occupational illnesses for contractor 
employees exposed to toxic substances at department of energy 
facilities; and
    WHEREAS, the United States department of energy is encountering 
significant delays in securing physician panel review of claims and, at 
the current rate of implementation, claimants will wait one hundred 
sixty-six years to receive findings on their claims; and
    WHEREAS, families filing claims have experienced delays in access 
to medical and exposure records, incident reports and confirmations of 
job histories; and
    WHEREAS, the contractor performing radiation dose reconstructions 
for the national institute for occupational safety and health has 
reportedly admitted conflicts of interest; and
    WHEREAS, the federal act restrains contractors who operate United 
States department of energy facilities from contesting state workers' 
compensation claims for illnesses induced by
    toxic chemicals, claims that have been found by physician panels to 
be meritorious; and
    WHEREAS, the United States department of energy has conceded it may 
not have a willing payor through state workers' compensation programs 
for claims that are deemed meritorious by physician panels; and
    WHEREAS, legislation was introduced in the one hundred seventh 
congress, with bipartisan support, that established deadlines for the 
administration of claims and that provided for a federal willing payor 
to equitably administer disability payments and meritorious medical 
claims; and
    WHEREAS, some New Mexicans with meritorious claims were unfairly 
denied state workers' compensation in the years prior to passage of the 
federal act, and these individuals and their survivors should not be 
left behind without a willing payor; and
    WHEREAS, New Mexico's large population of potentially eligible 
claimants should not have to wait another generation or more to be 
compensated for their occupational illnesses; and
    WHEREAS, the thousands of New Mexicans who risked their lives and 
good health in the service of their country should be compensated 
before they die;
    NOW, THEREFORE, BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF 
NEW MEXICO that the state's congressional delegation be requested to 
pursue legislation to amend the Energy Employees Occupational Illness 
Compensation Program Act of 2000 to ensure that:
    A. there is a willing payor for every meritorious claim, including 
those claims that were previously denied under state workers' 
compensation programs;
    B. the United States department of energy concludes its reviews of 
claims within one hundred eighty days;
    C. a non-adversarial forum be established to resolve claims 
independent of state workers' compensation programs;
    D. those employees who are unable to obtain records establishing 
past exposures and employees whose claims of radiation exposure are in 
jeopardy of being denied due to scientific uncertainty in causation 
determinations should receive the benefit of the doubt and be 
compensated under the federal act;
    E. chronic renal disease in workers exposed to uranium be 
recognized as a compensable illness;
    F. special exposure cohorts be established for employees in area g 
and the linear accelerator, and for security guards and all 
construction workers, due to the impossibility of accurately 
reconstructing past radiation doses;
    G. a program of technical assistance grants be created to enable 
community- and labor-based organizations to assist claimants; and
    H. congressional oversight hearings be held to investigate whether 
the energy employees occupational illness compensation program is 
meeting the needs of claimants in New Mexico; and
    BE IT FURTHER RESOLVED that the federal secretary of energy, the 
federal secretary of health and human services and the federal 
secretary of labor, each of whom shares responsibilities for 
implementing the energy employees occupational illness compensation 
program, be requested to redouble their efforts to ensure that the 
program achieves its intended purpose of providing benefits to the 
people of New Mexico who were made ill while employed at federal 
department of energy facilities; and
    BE IT FURTHER RESOLVED that copies of this memorial be transmitted 
to the members of the New Mexico congressional delegation and to the 
cabinet secretaries of the departments of energy, health and human 
services and labor.

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