[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
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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
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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
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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.
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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.