[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
  ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 
   FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE 
                     CREATED THIS PROGRAM? (PART V)

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

                                HEARING

                               BEFORE THE

                      SUBCOMMITTEE ON IMMIGRATION,
                      BORDER SECURITY, AND CLAIMS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                            DECEMBER 5, 2006

                               __________

                           Serial No. 109-159

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov
                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Immigration, Border Security, and Claims

                 JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa                     SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas                 HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   ZOE LOFGREN, California
ELTON GALLEGLY, California           LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia              MAXINE WATERS, California
DANIEL E. LUNGREN, California        MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California

                     George Fishman, Chief Counsel

                          Art Arthur, Counsel

                         Allison Beach, Counsel

                  Cindy Blackston, Professional Staff

                   Nolan Rappaport, Minority Counsel


                            C O N T E N T S

                              ----------                              

                            DECEMBER 5, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable John N. Hostettler, a Representative in Congress 
  from the State of Indiana, and Chairman, Subcommittee on 
  Immigration, Border Security, and Claims.......................     1
The Honorable Sheila Jackson Lee, a Representative in Congress 
  from the State of Texas, and Ranking Member, Subcommittee on 
  Immigration, Border Security, and Claims.......................     5

                               WITNESSES

Mr. Shelby Hallmark, Director for the Office of Workers' 
  Compensation Programs, U.S. Department of Labor
  Oral Testimony.................................................     9
  Prepared Statement.............................................    10
Mr. John Howard, M.D., Director, National Institute for 
  Occupational Safety and Health
  Oral Testimony.................................................    17
  Prepared Statement.............................................    18
Mr. Daniel Bertoni, Director, Education, Workforce, and Income 
  Security Issues, U.S. Government Accountability Office
  Oral Testimony.................................................    19
  Prepared Statement.............................................    22

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John N. Hostettler, a 
  Representative in Congress from the State of Indiana, and 
  Chairman, Subcommittee on Immigration, Border Security, and 
  Claims.........................................................    52
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas, and Ranking 
  Member, Subcommittee on Immigration, Border Security, and 
  Claims.........................................................    63
Significant documents and communications related to the 
  Subcommittee's oversight of the Energy Employees Occupational 
  Illness Compensation Program Act...............................    68


  ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 
   FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE 
                     CREATED THIS PROGRAM? (PART V)

                              ----------                              


                       TUESDAY, DECEMBER 5, 2006

                  House of Representatives,
                       Subcommittee on Immigration,
                       Border Security, and Claims,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 4:15 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable John 
Hostettler (Chairman of the Subcommittee) presiding.
    Mr. Hostettler. The Subcommittee will come to order.
    This is the fifth and final hearing in a series of hearings 
before the Subcommittee in this Congress on the implementation 
of the Energy Employees Occupational Illness Compensation 
Program Act. The overarching purpose of these hearings has been 
to make sure the Government is fulfilling the promises made to 
these workers who sacrificed so much for their country during 
the Cold War. This program was created to help them, not as 
some science experiment to provide unlimited employment for 
Government contractors and certainly not to set these workers 
up to be deceived and minimized by the Government yet again.
    Because DOE and its contractors often did not properly 
monitor workers' exposures to radiation and other toxins and, 
often, records of worker exposures no longer exist, EEOICPA 
provided that HHS could designate such workers as members of 
the, ``Special Exposure Cohort,'' or SEC. Under a designated 
SEC, benefits are paid to workers who received on-the-job 
radiation exposure for a period of time and who have been 
diagnosed with one of 22 radiosensitive cancers.
    When this law was enacted in 2000, Congress did not know 
how many new groups of workers might be designated as belonging 
in a Special Exposure Cohort, but from hearings in this 
Committee we knew that there was limited radiation monitoring 
data and nonexistent health physics programs in the earliest 
years, and this would make it almost impossible to accurately 
reconstruct dose for many claimants.
    Without the ability to add workers to the Special Exposure 
Cohort, many would face an insurmountable burden of proof when 
it was the Government who placed them in harm's way, frequently 
misled them about the hazards they were facing, and failed to 
properly monitor their exposures.
    It seems prudent to revisit some of the historical evidence 
of the Government's knowledge of what these workers were being 
subjected to and the intentional decision to keep that 
knowledge a secret.
    At Mallinckrodt, a 1951 Atomic Energy Commission memo 
assessed that their potential liability as a result of workers 
receiving radiation exposure for several years had been 
considerably more than any group for which data are available. 
The memo concedes, ``the possibility of tumor development among 
Mallinckrodt employees must be recognized,'' but the workers 
were never told.
    There are several examples from a formerly secret memo by 
the Atomic Energy Commission entitled Health Hazards in New 
York Operations Facilities Producing and Processing Uranium, 
April 1, 1949, that shed light on the amount of exposure 
workers received.
    At Harshaw Chemical in Cleveland, Ohio, the AEC memo showed 
33 of 88 employees were exposed to uranium dust concentrations 
of 140 to 370 times the so-called preferred level, and many 
employees had 2 to 4 years of exposure at these levels.
    At Electromet in Niagara Falls, New York, the AEC found 
that most of the process workers were exposed to uranium dust 
at five times the so-called preferred level, and the bomb 
loaders were exposed to 600 times the preferred level in 1948.
    At the Simonds Saw and Steel Plant in Lockport, New York, 
AEC wrote that, ``In order to satisfy Hanford's urgent need for 
rolled metal, which is uranium, it was necessary to begin 
operations before suitable controls could be installed.'' As a 
result, employees were exposed to a daily average of 155 times 
the preferred levels of uranium.
    An AEC memo acknowledged that with the exception of one 
facility, ``No effort has been made to explain the nature of 
the special problems which exist.'' AEC wrote that employees 
were, ``transferred from department to department and no record 
made of the fact.''
    ``It will therefore be impossible without relying on the 
memory of the individual employees and their foreman to 
reconstruct the dust exposure records of many present 
employees.''
    The AEC noted that due to the health hazards to workers, 
``The decision must therefore be made to provide satisfactory 
operating conditions despite existing operations pressures. If 
this is not done, it will be necessary to classify at least 
some of the operations within these plants as being extra-
hazardous in nature. This, of course, means concomitant 
complications such as difficulties in securing individuals for 
the job if full recognition is given to the extra-hazardous 
nature and insurance difficulties.''
    These are just a few examples of the history that guided 
the decision to provide relief for the workers through the 
Special Exposure Cohort petition process.
    While progress has been made regarding claims processed at 
DOD, several-thousand dose reconstructions are not completed at 
NIOSH more than 6 years after enactment. Advisory board members 
have been removed and added with no rhyme or reason, leaving 
the board imbalanced.
    The Administration has not acted on repeated requests by 
this Committee, as well as many Members of Congress to rectify 
this imbalance. Although OMB has indicated that the OMB 
passback does not reflect Administration policy, DOL's 
involvement in selectively culling compensable claims to 
second-guess NIOSH, constant internal criticism of the Advisory 
Board and the audit contractor, brainstorming on ways to limit 
the scope of SECs, and significant involvement in SEC 
rulemakings raises questions, now being evaluated by the GAO, 
on whether DOL has exceeded its authority and is involved in 
issues the law reserves for NIOSH and the Advisory Board.
    A number of pressing concerns with Subtitle E of the 
program, the portion of the program that provides wage 
replacement and/or impairment benefits to workers for their 
illness from exposure to toxic substances at DOE facilities, 
have yet to be scrutinized by the Committee.
    DOL testimony at our March 1, 2006, hearing about the DOL's 
role in the development of the OMB passback included a 
statement that ``Cost containment is not part of any strategy 
or involvement that the Department of Labor has had in this 
process.'' Yet oversight by this Subcommittee has found e-mails 
and memos discussing controlling approvals of SEC petitions by:
    One, having OMB review each petition with DOL input prior 
to final approval, a role specifically tasked to HHS;
    Two, refreshing the members of the Advisory Board to 
correct what is framed as an excessively claimant-favorable 
board;
    Three, selecting certain claims for cancers deemed 
compensable by NIOSH and then dissecting the NIOSH radiation 
dose estimate looking to show NIOSH error and justify an 
argument to reduce compensable claims;
    Four, ways to reduce the number of workers included in SEC 
classes;
    Five, working on NIOSH rulemakings to reduce the list of 22 
SEC-covered cancers and finding legalistic interpretations to 
reduce the number to as few as one type of cancer;
    Six, developing contingency plans to seek advice from the 
Justice Department that would relieve DOL of the obligation to 
pay benefits to certain Special Exposure Cohorts if DOL 
disagreed with the rationale for approving that SEC; and
    Seven, bringing in other entities to challenge NIOSH 
recommendations for SECs.
    We hope DOL will shed light on the discrepancy between 
previous testimony to this Committee in March and the document 
specifically viewed by the Committee that any rational person 
would perceive to be a benefits containment agenda through 
March of 2006.
    Although DOL has produced about a dozen binders of 
materials to the Committee, we note that another eight binders 
could only be reviewed in the DOL's offices and copies could 
not be made. Although four trips have been made to DOL, this 
inconvenience has hampered the necessary Committee oversight 
over the program.
    Many documents reflect a DOL attitude that SECs are not 
soundly based and that HHS and the Advisory Board can't be 
counted on to fight off claims regarding shoddy radiation 
monitoring data.
    A February 2005 memo to the Secretary of Labor states, 
``HHS has acquiesced to claimant, Advisory Board, and political 
pressure.'' An August 2005 memo accuses NIOSH of 
``capitulation,'' and then states with respect to efforts to 
cut back the number of cancers under the HHS SEC rule, ``NIOSH 
is taking a tremendous amount of heat on this issue and 
indications are they are looking for ways to crumble.''
    A February 2005 statement shows disdain for the Advisory 
Board, complaining, ``Thoughtful deliberation by the board, not 
something toward which they've shown a tendency anyway, will be 
extremely limited under these conditions.''
    While publicly professing no interest in the outcome of SEC 
recommendations on Mallinckrodt facility to Senator Kit Bond 
and the Advisory Board, the internal DOL comments state, ``The 
final vote is now projected for the board's next meeting in 
early July. It may be that at least two current members of the 
board will be replaced by new appointees by then, which could 
significantly change the dynamic of the board.'' Such a change 
is critical since the board and its contractors seem bent on 
demanding that NIOSH's processes be far more perfect than is 
possible, failing which SECs would be demanded everywhere.
    When briefing the top officials at DOL, staff suggested 
inflated cost estimates for new SEC designations. For example, 
they stated, ``The 10-year added cost for the Iowa SEC alone 
has been projected at $1 billion.'' The expenditures for the 
Iowa SEC have been about $49 million as of November 12, 2006. 
This is 5 percent of the DOL staff cost estimate. This cost is 
unlikely to grow much more because there has already been 
intensive claimant outreach, and new claim filings have dropped 
off significantly.
    With respect to Mallinckrodt, DOL staff wrote, ``The 10-
year added cost for a Mallinckrodt SEC was about $500 
million.'' However, the cost is $17.7 million or about 3.4 
percent of the amount projected.
    Mr. Hallmark maintains this alarmist tone in memos to the 
Secretary where he states, ``The stability of the current Part 
B program is at risk.''
    DOL has dismissed the concerns about their actions as no 
longer relevant since DOL has ceased and desisted from 
implementing the passback in May 2006. If this is the case, the 
Committee will need to review additional documents. The culture 
of disdain toward claimants and NIOSH appears to be so embedded 
in DOL that it will be important to take a hard look at what 
has transpired since the OMB passback first saw the light of 
day in order to confirm DOL's declaration.
    We will need to look at the DOL's internal communications 
since our February 2006 request. As such, I will be working 
with the Ranking Member after the close of this hearing to send 
a letter to both DOL and NIOSH, seeking to update the request 
previously made to the two agencies and to reiterate the need 
to produce the documents which have been withheld.
    We will hear from DOL, NIOSH and GAO today. We had invited 
the DOL ombudsman; however, we have been advised that this 
position is vacant and has been vacant since the beginning of 
October. We are disappointed that none of the staff from that 
office will be made available today because the reports to 
Congress and the recommendations they can offer are important 
in formulating reform legislation.
    We want these hearings and a detailed record left behind to 
create a road map for the 110th Congress to follow up on areas 
that need further inquiry and to enact reforms. To the bean 
counters, I would remind you that these aren't normal beans 
that you are counting. These funds are a small acknowledgment 
of the sacrifice of workers whose lives were put at risk to 
make this country safe enough for us to sit in our office 
counting beans. Show some respect and gratitude is my request.
    To the workers I say a heartfelt thank you; thank you for 
your service to our Nation. There are many of us who do 
appreciate your and your families' contribution to our world 
and want to do right by you. I would like to think that this 
Committee's hearings and oversight efforts have contributed to 
that goal, and I consider it a privilege to have led that 
effort in this Congress. I only wish more of the problems of 
the program could have been solved conclusively.
    Finally, I want you to know that I have confidence that 
there are many people in this Government and this country who 
will continue to fight for you to get the respect and care you 
deserve for all you have done for us.
    At this time, I recognize the gentlelady from Texas, the 
Ranking Member, for purposes of an opening statement.
    Ms. Jackson Lee. Let me thank the Chairman very much and 
let me acknowledge the leadership that the Chairman has given 
to this issue. He certainly has created an important road map 
for the 110th Congress, but more importantly he has created a 
superhighway of compassion and concern for those who have been 
left alongside the roadway that have given of themselves as 
great patriots representing their different regions across 
America.
    This legislation and this concern is not focused on one 
region or another; it is really a question of people and the 
contributions people are willing to give on behalf of their 
beloved country, America. The Chairman has eloquently 
acknowledged that our task is to help those individuals.
    And, Mr. Chairman, I would like to personally thank you and 
acknowledge--I believe, unless you call for a series of 
hearings over the next 48 hours, this may be, in fact, your 
last hearing as the Chairman of this Subcommittee. As the 
Ranking Member, I want to particularly place in the record my 
appreciation for the moments of our agreement, and certainly 
moments that we have disagreed but we have not been 
disagreeable. You have led this Committee with distinguished 
service, and I know that I speak for all of my colleagues who 
are represented by both sides of the aisle with a heartfelt 
thank you.
    In particular, let me acknowledge that we hope that we will 
have a bill on the floor that you have been carefully guiding, 
J1 visas, which may sound like a small minor point, but 
thousands of rural communities are waiting upon doctors that 
they do not have that may be provided assistance by the J1 
visa. I thank you for working with me and for our working 
together on that.
    As well, we have worked, certainly, on this legislation 
dealing with occupational illness compensation, and you have 
been detailed and thorough in the, I think, broken system of 
Government that has failed to respond to the needs of these 
individuals.
    Let me also say that though immigration has been a 
challenge, we have worked together on anti-alien smuggling 
legislation; our concern about securing the border is, I think, 
the same.
    So again might I add for the record a heartfelt 
appreciation for the service that you have given to the 
Judiciary Committee, to the Subcommittee on Immigration and 
other Committees that you have served, and certainly, most 
importantly, to the Nation. Thank you, Mr. Chairman.
    Let me indicate as I have always said at hearings like this 
that we hope that our work will generate solutions, and I hope 
the distinguished witnesses who are here today will find a way 
to either facilitate the solution or take messages back to 
their various agencies. And let us be different than what we 
are perceived, and that is bureaucrats, obstructionists 
sometimes, and uncaring of the needs of those whom we impact.
    I believe we can find a solution, as the Chairman has 
indicated, and it is long overdue. The last hearing, we had the 
daughter of one of the victims, since passed; and to hear 
stories of the lack of resources, compensation, and to 
understand how this could have happened to their loved one 
really pulls at your heartstrings.
    The good news is, this can be fixed, and we should fix it. 
This is the fifth in a series of hearings on Subtitle B of the 
Energy Employees Occupational Illness Compensation Act, and 
Subtitle B covers occupational illness associated with making 
nuclear weapons. Workers who have contracted one of those 
illnesses may be eligible for a lump sum payment of $150,000 
and prospective medical benefits.
    Let me insert into the record, as well, just the occurrence 
in the past 2 weeks of the loss of the Russian spy. The 
determination, though not final, is the obvious ingestion of 
some sort of nuclear product. I only cite that example so that 
it relates to your concept of how devastating contact with 
nuclear material can be to a human being. Obviously, it is 
suggested that this was ingested and this individual was 
poisoned, but the time of his demise was quick and it was 
vicious.
    And so we might just associate what some of these victims, 
who have had exposure working for their nation on nuclear 
weapons, might have been impacted by--the minimal impact that 
you can imagine of this exposure, to be ill and not have the 
ability to be compensated.
    In processing radiation-related cancer claims the National 
Institute for Occupational Safety and Health is required to 
estimate a worker's exposure to radiation. If this is not 
feasible, but it is clear that the health of workers may have 
been endangered by radiation exposure, the workers can petition 
to be designated as members of a Special Exposure Cohort, which 
establishes an unrebuttable presumption that certain cancers 
are work-related.
    In an internal passback memorandum from the Office of 
Management and Budget to the Department of Labor, OMB states 
that the Administration will convene a White House-led 
interagency work group to develop options for administrative 
procedures to contain the growth in the costs of the 
compensation program. That was the first mistake and the first 
wrong direction, and it should be corrected and it should be 
pulled back. It was a passback memorandum; it should have a 
pullback memorandum. We should begin to formulate how we 
provide compensation to these victims.
    The series of five hearings addresses concerns about the 
cost containment measures recommended in the passback 
memorandum because it cites particularly that we are concerned 
about costs over the lives and health conditions of the 
victims. That is wrong; we need a pullback memorandum.
    Government witnesses have testified that cost containment 
is not a factor in deciding which claims to pay, and they have 
said that the recommendations in the passback memorandum have 
not been implemented. The Administration may not be 
implementing the specific recommendations in the passback, but 
that does not mean that no efforts are being made to contain 
the cost of the program. And the Chairman has detailed the ups 
and downs this Committee has had in trying to secure 
information and trying to be responsive and being able to 
really move this solution forward.
    The hesitancy of the agencies, frankly, has inhibited us 
from getting legislation to the floor, which means that we are 
now going to have to work into the 110th Congress, which I hope 
will move quickly on this issue.
    At the previous hearing on November 15, 2006, Richard 
Miller, a senior policy analyst for the Government 
Accountability Project, testified that DOL is employing cost 
containment measures in spite of their representations. For 
instance, DOL has criticized the details in most of the 
proposed SEC designations in what he believes to be an effort 
to reduce benefits, and it has changed the regulations 
governing SEC petitions to make it more difficult to qualify.
    Dr. John Mauro, the project manager for S. Cohen & 
Associates, testified at the same hearing that the 
Administration recently made it more difficult for SC&A to 
access data and records when it reviews a recommendation from 
NIOSH to deny an SEC application. This makes it more difficult 
to evaluate the records which are the basis for the denial 
recommendations.
    Cost containment is not the only problem that has come to 
our attention at these hearings. Another witness at the 
previous hearing, Kathy Bates, described the difficulties her 
family has had in trying to obtain compensation for the death 
of her father from cancer caused by work site radiation 
exposure. The initial claim was rejected on the basis of 
radiation exposure records that did not pertain to her father.
    Ms. Bates brought this to the attention of the office 
processing the claim and received assurances that the Social 
Security card number would be corrected. Nevertheless, when a 
new decision was rendered, it denied the claim again, using the 
same incorrect Social Security number to identify her father's 
records.
    This is not befitting of America. This is not only an 
embarrassment, but it really undermines families and certainly 
continues to disregard the service of these patriots as they 
worked throughout the years. Ms. Bates concluded that quality 
control measures are needed for the process of evaluating 
claims, and I agree.
    So this is not a question of cost containment; this really 
is a question of getting the job right, fixing the process, 
giving the right Social Security number, and responding to the 
needs of victims.
    I have introduced a bill to address the cost containment 
issue, the Energy Employees Occupational Illness Compensation 
Program Improvement Act of 2006, H.R. 5840. Among other things, 
it would shift the authority from making Advisory Board 
appointments to the Congress, require the HHS Secretary to 
abide by the recommendations of the Advisory Board unless there 
is a clear error. It would establish enforceable conflict-of-
interest requirements with respect to NIOSH's dose 
reconstruction contractors. It also would eliminate unfairness 
by making benefits available to some subcontractor employees 
who worked in atomic weapons employer facilities, but presently 
are not covered by the act.
    These workers made a commitment to our country, to their 
beloved America, when the country needed them most. Now, some 
very many years later, it is our turn to help them in their 
time of need, to help their families in their time of need and 
to make good on what patriotism is all about, a love of one's 
country; and the country, of course, upholding its duty and 
commitment to her people.
    I yield back.
    Mr. Hostettler. I thank the gentlelady. And I thank you for 
your kind comments and thank you for your work over the last 4 
years and look forward to your progress in the upcoming 
Congress.
    I'd now like to introduce members of our panel. Shelby 
Hallmark has served as the Director for the Office of Workers' 
Compensation Programs, or OWCP, for the Department of Labor 
since June 18, 2001. He had previously served as Acting 
Director and Deputy Director for OWCP. Mr. Hallmark has served 
in various positions at the Department of Labor since 1980, 
beginning his career in the Employment Standards 
Administration.
    He holds a B.A. in history and philosophy from the 
University of Texas at Austin and received an M.A. from that 
university's Institute for Latin America Studies.
    John Howard is the Director of the National Institute for 
Occupational Safety and Health at the Department of Health and 
Human Services. Prior to his appointment as Director, Dr. 
Howard served as Chief of the Division of Occupational Safety 
and Health in the California Department of Industrial Relations 
from 1991 to 2002.
    Dr. Howard received his Doctor of Medicine from Loyola 
University of Chicago in 1974, his Master of Public Health from 
the Harvard School of Public Health in 1982, his Doctor of Law 
from the University of California at Los Angeles in 1986, and 
his Master of Law in Administrative Law from the George 
Washington University in Washington, DC, in 1987.
    Daniel Bertoni is Acting Director for worker protection 
issues in the United States Government Accountability Office's 
Education, Workforce and Income Security team, or EWIS. Mr. 
Bertoni began his career with GAO in 1989 as an analyst in the 
New York region and is currently assigned to GAO's Washington, 
DC, headquarters. Over the course of his career, Mr. Bertoni 
has led numerous management, operational and program integrity 
reviews at the Department of Labor, Social Security 
Administration and the Internal Revenue Service. Mr. Bertoni 
holds a Master's degree in political science from the 
Rockefeller School of Public Affairs and Policy in Albany, New 
York.
    Gentleman, if you would please stand and raise your right 
hand and take the oath.
    [Witnesses sworn.]
    Mr. Hostettler. Let the record reflect that each witness 
responded in the affirmative.
    Gentlemen, you will see--and you're all, I'm sure, well 
aware of--the lighting system that we have here. Without 
objection, your opening statements, written statements, will be 
made a part of the record; and we ask that you keep as close to 
the 5 minutes as possible in order for Members to ask 
questions.
    Mr. Hallmark, you will please begin. You're recognized for 
5 minutes.

   TESTIMONY OF SHELBY HALLMARK, DIRECTOR FOR THE OFFICE OF 
    WORKERS' COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR

    Mr. Hallmark. Thank you, Mr. Chairman. I'm pleased to 
appear today to discuss the Department of Labor's efforts to 
implements EEOICPA.
    The veterans of the Cold War have been waiting for a long 
time, and we're proud of our ability to get both Part B and the 
new Part E of this act up and running quickly. DOL staff are 
dedicated to adjudicating claims and providing benefits in a 
prompt, fair and consistent way and in accord with the law as 
enacted by Congress. We have set challenging performance goals 
and consistently exceeded them, and we're driving hard to 
finish resolving all the backlogged cases.
    The results demonstrate that the promise of the statute is 
being kept. In 5 years we've issued $2.4 billion to 22,000 
beneficiaries. Nearly 75 percent of all cases have received at 
least one final decision from DOL. Less than 6,000 cases remain 
in the NIOSH dose reconstruction queue, and that dose 
reconstruction process has resulted in nearly $550 million in 
benefits so far.
    Under Part E, we've issued an initial decision on 80 
percent of the 2,500 cases DOL inherited from the Department of 
Energy, and nearly $520 million has already been awarded under 
that part.
    These statistics show that the EEOICPA program is working. 
We haven't yet reached steady state and benefit outlays are 
still growing as we work through the remaining backlogs. The 
program as a whole is moving forward, but those who haven't yet 
received a final decision or who have had difficulties with the 
program may still be disappointed.
    We've adopted numerous strategies to help claimants 
navigate this complex program. These range from extensive 
public outreach efforts to one-on-one assistance from our 
resource centers and our district offices.
    Our staff directly gather employment, exposure and medical 
evidence on virtually every claim, greatly easing the burden on 
claimants. For Part E, we're building extensive site exposure 
matrices which we match against medical data sets to link those 
exposures to specific medical conditions. These DOL-provided 
evidentiary tools won't prove eligibility in every case, but 
they help in a very large majority of them.
    Mr. Chairman, previous testimony before this Subcommittee 
alleged DOL is anticlaimant and has carried out a covert cost 
containment effort. These charges are simply not true. They 
arose from options in a now disavowed internal OMB memo. OMB 
has testified before this Subcommittee that the Administration 
is not pursuing those options, and we are not pursuing them nor 
are we attempting to usurp NIOSH's role.
    As the lead agency in the administration of the EEOICPA, 
we're responsible for issuing fair, equitable decisions to 
claimants. This requires close coordination and scrutiny of the 
activities of other agencies, including NIOSH. Our goal in 
reviewing NIOSH inputs is to ensure that the final decisions 
based on them are accurate and consistent and can be sustained 
in court if challenged.
    We've returned nearly 2,000 dose reconstructions to NIOSH 
over the past 3 years for rework, but 88 percent of those cases 
otherwise would have been denied. We were nearly always giving 
the claimant a second chance, certainly not an anticlaimant 
status.
    Neither have we conducted a covert cost-cutting campaign 
regarding the Special Exposure Cohort. Starting in 2005, I 
publicly urged the Advisory Board to ensure that the rationale 
for each new SEC class it considers comports with the statute, 
is clearly explained, and is capable of consistent application.
    I also noted that SEC class declarations have negative 
impacts on some claimants whose cancers are not on the list 
that conveys presumptive eligibility. These concerns are and 
continue to be about equity, not about cost.
    DOL also works with NIOSH to ensure that the definition of 
each class is clear and can be reasonably interpreted for 
adjudication purposes to avoid unintended outcomes and expedite 
the adjudication of these cases. We have a fiduciary 
responsibility to ensure that payments are lawful, but our 
chief concern is that the process yields reasonable and 
defensible outcomes across the entire complex now and for years 
to come. That has been and remains our focus.
    In summary, the record of our administration of the act is 
positive. Billions of dollars have been awarded, backlogs are 
rapidly diminishing, approval rates far exceed original 
projections, and litigation remains remarkably low. There's 
much to be done. We must eliminate the remaining backlogs and 
we must strengthen our overall delivery of services, but on 
balance, the EEOICPA program is unfolding as promised and can 
be expected to continue to do so.
    I'll be glad to answer your questions when the time comes.
    Mr. Hostettler. Thank you.
    [The prepared statement of Mr. Hallmark follows:]

                 Prepared Statement of Shelby Hallmark

    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 appear before the Subcommittee today to discuss our 
efforts to fulfill the promise made to veterans of the cold war with 
the enactment of the Energy Employees Occupational Illness Compensation 
Program Act (EEOICPA). Since the initial implementation of this 
program, DOL staff have dedicated themselves to ensuring that we 
adjudicate claims and provide benefits to eligible workers and their 
survivors in a manner that is timely, fair, consistent, and according 
to the Law as enacted by Congress. We believe the results demonstrate 
that the promise of the statute is being kept.
    There have been assertions made in previous hearings before this 
Subcommittee that the Department of Labor has been working to curtail 
the promise of the Act. That is not the case, and I will also present 
evidence that we are, in fact, administering the program in the best 
interest of the workers and survivors for which it was intended, and as 
outlined in the law.

                        PROGRAM ACCOMPLISHMENTS

    The EEOICPA has been and continues to be an interdepartmental 
activity, involving the coordinated efforts of the Department of Energy 
(DOE), Health and Human Services (HHS), Department of Justice (DOJ), as 
well as DOL. As the lead agency for EEOICPA, we are proud of the 
overall progress we've made in implementing both Parts of the Act.
    The Department of Labor has administered Part B of the program 
since its inception in 2001. In October 2004, Congress chose to entrust 
DOL with a new facet of EEOICPA, Part E, to redress issues with the 
earlier Part D program. Throughout the brief history of the Act, DOL 
has worked hard to fairly and effectively administer these complex 
programs, according to the requirements of the statute. In doing so, we 
have set challenging performance targets to ensure that workers and 
their families, who have waited for so long, receive prompt and 
accurate decisions. Although we have much work still to do, we have 
consistently exceeded our performance goals and will continue to press 
ahead as quickly as possible until all backlogged cases are resolved.
    The EEOICPA program is still new and evolving, but a great deal has 
been accomplished. Workers who haven't yet received a final decision, 
or who are unhappy with a decision, may question our success in 
fulfilling its promise, but a full and fair analysis of the program 
indicates that it is moving forward effectively.
    Since the inception of the program, claims have been filed for 
EEOICPA benefits on behalf of more than 58,000 individual workers. Of 
those, 43,000, or nearly 75%, have received at least one final decision 
from DOL (individuals can receive multiple decisions under Part B and 
Part E). More than 22,000 individuals have received in excess of $2.25 
billion in lump sum compensation under Part B, Part E or both, as well 
as $133 million in medical benefits.

                         PART B ACCOMPLISHMENTS

    The EEOICPA was initially enacted on October 30, 2000. It 
established a federal payment program (Part B) under which DOE 
contractor employees and certain other employees and their eligible 
survivors are entitled to receive federal compensation and medical 
benefits for radiation-induced cancer, beryllium disease or silicosis. 
Executive Order 13179 of December 7, 2000, assigned primary 
responsibility for Part B administration to DOL. DOL's delegated 
responsibility included addressing issues raised in the claims process 
regarding dose reconstructions conducted by the National Institute for 
Occupational Safety and Health (NIOSH). DOL moved swiftly to issue 
Interim Final Regulations in May 2001, and established a fully 
functioning program on schedule. Secretary of Labor Elaine Chao 
presented the first EEOICPA check on August 9, 2001.
    To date, more than 76% of Part B cases have received a final 
decision, and payouts are approaching $1.75 billion. Another 11% of 
Part B cases are at various stages of dose reconstruction with NIOSH. 
The vast majority of the remaining 7,000 cases were received during the 
past year and are moving promptly through the various stages of the 
adjudicatory process. The Division of Energy Employees Occupational 
Illness Compensation (DEEOIC) has met its timeliness goals for 
processing Part B cases every year, and although the time to complete 
Part B actions has increased in 2006 due to the addition of the new 
Part E program, the average time to issue initial decisions was 175.2 
days, less than the program standard of six months. In FY 2006, 
DEEOIC's Final Adjudication Branch achieved an 88% rate for issuing 
final Part B decisions within established program standards. Although 
these complex occupational disease claims take time, we are generally 
pleased with the speed of adjudication once dose reconstruction is 
completed.
    Some have cited the approval rate for Part B cases, which are 
subject to the dose reconstruction process, as evidence that the intent 
of the statute is not being realized. To date, approximately 29% of 
such cases have received a final decision conferring benefits, and 
nearly 5,000 claimants have received over $534 million in benefits via 
this process. To assess these outcomes, one must understand the choices 
Congress made in establishing the Part B program's approach to 
adjudication of radiogenic cancer claims.
    When Congress was considering the legislation that became Part B of 
EEOICPA, it was confronted with a difficult choice concerning how the 
government should determine whether a cancer was sufficiently work-
related to justify compensation under the new compensation program. 
Decades of experience demonstrated that requiring medical evidence that 
an individual cancer was related to radiation exposure was not a 
workable solution because of the inability of scientists or doctors to 
determine the specific cause of any particular cancer. Therefore, 
Congress chose to use a statistical epidemiological approach requiring 
a claimant to establish that a worker's cancer was ``at least as likely 
as not'' related to workplace exposure when that probability was 
calculated using a version of statistical tables previously developed 
by the government. Since there was substantial evidence that 
recordkeeping at many covered facilities was less than comprehensive, 
it was understood by the sponsors of the legislation that the process 
would not be perfect but would be based upon estimation and 
probability.
    In view of previous experience with such statistical tables, the 
fact that some types of cancer have been found not to be significantly 
radiogenic, and the fact that the National Cancer Institute estimates 
that the incidence of cancer in the general population is over 40%, it 
was clear that many cancers would be found to have less than a 50% 
probability of work-related causation and would thus not lead to a 
decision to compensate the claimant. However, Congress did specify in 
the legislation that a 99 percent confidence interval be used in the 
calculation. (For each specific dose reconstruction there is a range of 
possible resulting probabilities of causation. This means that if only 
one percent of these possible outcomes are 50 percent or more, the 
claim is awarded benefits.) This provides a very large margin for error 
in favor of claimants. Nevertheless, the DOE initially estimated, based 
on their knowledge of exposures in the complex and epidemiological 
studies of cancer incidence, that less than 5% of nuclear weapons 
workers who incurred cancer would reach the 50% probability of 
causation threshold.
    In practice, the strenuous efforts of NIOSH to be fair to claimants 
and resolve ambiguities in their favor have resulted in the current 
approval rate of 29% for such claims, far in excess of any predictions 
when the legislation was being considered. Those whose claims are 
denied often feel strongly that the cancers involved were caused by 
work-related exposure to radiation, and one cannot help but sympathize 
with individuals diagnosed with cancer, and with their families. 
However, DOL must make determinations consistent with the requirements 
of the statute.

                         PART E ACCOMPLISHMENTS

    In addition to administering Part B of the Program, DOL has 
responsibility as the lead agency for Part E (which replaced Part D) of 
the Act. Congress initially included a second program in EEOICPA, Part 
D, which required DOE to establish a system by which DOE contractor 
employees and their eligible survivors could seek assistance in 
obtaining state workers' compensation benefits. In the Ronald W. Reagan 
National Defense Authorization Act for Fiscal Year 2005, Pub. L. 108-
375 (October 28, 2004), Congress abolished Part D of the EEOICPA, 
created a new Part E in its place, and assigned administration of Part 
E to DOL. Part E established a new system of federal payments for DOE 
contractor employees and eligible survivors of such employees. Part E 
benefits were also extended to uranium miners, millers and ore 
transporters covered by Section 5 of the Radiation Exposure 
Compensation Act (RECA). Congress specified that DOL prescribe Interim 
Final Regulations implementing the amendments to EEOICPA with 210 days 
of enactment.
    When the amendment was passed in October 2004, there were more than 
25,000 cases pending with the old Part D program, many for more than 
four years, thus creating an instant backlog for the new program. 
Within two months of enactment, DOL began providing compensation under 
the newly established Part E of the EEOICPA, using preliminary 
procedural guidance. Interim final regulations were implemented by May 
2005, within the deadline established by Congress. Since its inception, 
the DEEOIC has provided more than 4,000 employees or their families 
with Part E compensation payments exceeding half a billion dollars. In 
addition, DOL set specific Part E targets for fiscal year 2005 and 
fiscal year 2006, to issue payments and make initial decisions on 
backlogged cases. DOL exceeded these goals in both years, issuing over 
1,500 payments in fiscal year 2005, and issuing initial decisions on 
more than 75% of the backlogged cases by the end of fiscal year 2006. 
By the end of 2007, the new program will have eliminated the backlog 
and will be current in processing all incoming claims.
    Aside from the cases inherited from Part D, during FY 2006 DOL was 
able to reach initial determinations on new Part E claims within 
program standards 73% of the time, with the average time required being 
132 days.
    For greater efficiency, simplicity, and speed, DEEOIC now 
adjudicates all claims for benefits under Parts B and E of the EEOICPA 
as one EEOICPA claim. Where possible, decisions are issued that address 
both Parts B and E simultaneously. However, partial decisions may also 
be issued in cases where benefits under some provisions can be awarded 
but claims under other provisions require further development. Once the 
backlog of inherited claims has been fully resolved, we will direct 
maximum attention on driving down the time to process each step of 
these claims, while continuing to work to improve the quality of our 
decisions. We are focused on doing everything we can to speed the 
processing of claims under this program, and to getting compensation 
and benefits to all eligible injured workers and their families.

                  DOL CLAIMANT ASSISTANCE AND OUTREACH

    The complexity involved in EEOICPA--the exposures and diseases 
involved and the science required to relate them to one another, the 
multiple benefits available and separate eligibility rules under the 
two Parts, and the multiple agencies engaged in delivering the 
program--as well as the advanced age of many current and potential 
claimants, necessitate extraordinary effort to inform and assist the 
affected community. DOL has utilized a wide range of methods to educate 
the public and provide specific assistance in completing forms and 
navigating through the process of submitting evidence and other 
information.
    DOL has undertaken significant outreach activities in an effort to 
provide detailed information to the employees or survivors who may be 
eligible for benefits. As a first step, DOL established resource 
centers (now 11 in number) located throughout the country, in which 
knowledgeable staffs work one-on-one with claimants to file appropriate 
forms and submit information to DOL relevant to those claims. 
Information is provided face-to-face and via toll-free telephone 
service. Resource center staffs provide all relevant information at the 
initial stages of claim submission and personally answer any questions 
that arise. They also participate in numerous community events in their 
jurisdictions to get the word out to various groups that may include 
potential claimants.
    To attract maximum attention to the program, DOL held well-
publicized Town Hall meetings throughout 2001-2005 in various locations 
throughout the country where there was a significant population of 
individuals currently or formerly employed at covered facilities. DOE 
and NIOSH also participated in most of these meetings, providing 
information and answering questions about their responsibilities under 
the statute. These meetings were well attended by employees, survivors 
and special interest group members. DOL continued to conduct these 
meetings during 2006 as new regulations and procedures were developed.
    In addition to educating the public about benefits, DOL has forged 
key relationships with various entities that have information that may 
be pertinent in the successful adjudication of claims. DOL understands 
the difficulties claimants may have in locating employment and exposure 
records needed to issue fair decisions. As a result, DOL has contracted 
with the Center to Protect Workers Rights (CPWR) to track down 
information about construction workers who may have been exposed at DOE 
sites but whose employment information was not captured in DOE prime 
contractor datasets. We also work with the DOE Former Workers Program, 
and with other contractors, to locate appropriate records which are not 
immediately available through DOE. These valuable relationships help 
relieve the burden on the claimants to locate these records. In 
addition, DOL has developed a site exposure matrix, which is a detailed 
database containing information concerning the types of chemicals that 
may be found at a given covered facility. This matrix is utilized by 
claims staff in the district offices to determine toxic exposures. 
These relationships and tools have been significant in reducing the 
amount and types of information required to be submitted by claimants.
    In an effort to further assist claimants in the processing of 
claims, DOL has contracted with over 200 physicians throughout the 
country to provide medical evidence for use in issuing decisions 
related to causation and impairment issues. These district medical 
consultants work with DOL to review particularly difficult claims, or 
where claimants have no access to physicians able to provide the 
necessary medical evaluations, and to assist DOL staff in issuing 
accurate and thorough decisions.
    Each of the four DEEOIC district offices and its Final Adjudication 
Branch maintain toll-free telephone lines and receive and promptly 
respond to thousands of inquiries each year.
    These efforts demonstrate DOL's dedication to reaching out to the 
public, and to alleviating burden on claimants by assisting them in 
perfecting their claims at all stages of the adjudication process. 
Those who have experienced difficulties in navigating this complex 
program may be disappointed that we have not done more, but we are 
working continuously to further improve that assistance, and we urge 
claimants and family members who are confused or uncertain about the 
meaning of program documents or how they should proceed to contact us 
directly to address those concerns.

                  DOL COORDINATION WITH OTHER AGENCIES

    Given DOL's role as lead agency in the administration of the 
EEOICPA, significant coordination is required with other federal 
agencies, including NIOSH, DOE, and DOJ. NIOSH (a component of HHS) 
supports the program by conducting radiation dose reconstruction and 
handling requests for expansion of the Special Exposure Cohort (SEC). 
The DOE and many of its contractors supply employment and exposure 
information. The DOJ coordinates the coverage of certain uranium 
workers also covered under the Radiation Exposure Compensation Act 
(RECA). We've worked from the beginning to coordinate all these 
agencies' EEOICPA activities so that the program functions as it was 
intended.
    A key element in processing a great number of Part B claims is the 
NIOSH dose reconstruction process. Although NIOSH is responsible for 
conducting the research necessary to provide claimants and DOL with a 
detailed dose reconstruction report estimating work-related radiation 
exposure, the ultimate responsibility for issuing recommended and final 
decisions rests with DOL, utilizing the NIOSH dose reconstruction and 
other evidence in the file. (See the discussion below on cases returned 
to NIOSH for rework.) NIOSH requests input and claimant signatures on 
dose reconstruction documents, but the signature only acknowledges 
receipt of the document and does not constitute concurrence or 
objection. DOL's Final Adjudication Branch (FAB) is a claimant's only 
opportunity, prior to issuance of the DOL decision, to contest a dose 
reconstruction. Consequently, it is imperative that DOL thoroughly 
review and understand the dose reconstruction reports provided by NIOSH 
such that we may issue fair and equitable decisions to the claimants.

         ALLEGATIONS THAT ATTRIBUTE COST-CUTTING MOTIVES TO DOL

    In testimony provided at previous hearings before this 
Subcommittee, it has been alleged that DOL has attempted to carry out a 
covert budget cost containment effort. As I testified on March 1, 2006, 
this is simply not the case. This issue initially arose in the context 
of an Office of Management and Budget (OMB) 2007 budget passback 
document which outlined various options related to the NIOSH SEC and 
dose reconstruction processes. As the Administration has previously 
testified, it is not pursuing any of these options.
    As indicated above, DOL, as lead agency in the administration of 
the EEOICPA, is ultimately responsible for issuing fair and equitable 
decisions to claimants. This requires close coordination and analysis 
of activities undertaken by other agencies involved in the process, 
including NIOSH. DOL's only goal in reviewing NIOSH dose 
reconstructions is to ensure that final decisions are accurate, fair 
and consistent.
    Performance at the DOL and NIOSH technical staff level provides 
significant insight into the workings of both agencies on day-to-day 
program coordination activities and DOL's effort to ensure fairness and 
uniformity in program decisions, while further demonstrating that DOL 
is in no way attempting to administer EEOICPA in a manner that is 
driven by cost containment. Two areas that are demonstrative of program 
performance are DOL decisions requesting NIOSH reworks of completed 
dose reconstructions, and DOL decisions in addressing claimants' 
technical objections to NIOSH dose reconstructions. The latter is of 
utmost importance since the only avenue for claimants to object to the 
NIOSH dose reconstruction procedures is through the DOL claims 
adjudication process.

                 REWORKS OF NIOSH DOSE RECONSTRUCTIONS

    As part of the DOL claims process, upon receipt of a dose 
reconstruction report from NIOSH, claims staff reviews the reports for 
accuracy and consistency prior to issuing recommended or final 
decisions on cases. Sometimes they recognize anomalies in the reports 
which require further analysis. For example, a dose reconstruction may 
have been conducted based on an incorrect diagnosis code, or additional 
evidence received after the dose reconstruction was completed by NIOSH 
may reveal expanded employment, or medical evidence has been submitted 
revealing that an employee had an additional cancer. In these 
instances, the claims staff either at the district office level or at 
the Final Adjudication Branch must determine whether a claim should be 
returned to NIOSH for a ``rework.'' The DEEOIC Procedures, (EEOICPA 
Bulletin No. 04-01, issued in 2003) state the following:

        ``The DEEOIC Health Physicist serves as the central liaison 
        between NIOSH and DOL on all dose reconstruction related 
        issues. All requests for reworks of dose reconstruction reports 
        must be forwarded to the DEEOIC Health Physicist for review. 
        The DEEOIC Health Physicist will review the request for rework 
        and determine whether a rework is required. The DEEOIC Health 
        Physicist will contact the claims examiner if additional 
        information is needed to make a determination, which may 
        include requesting the case file. If the information would 
        change the outcome of the dose reconstruction or affects the 
        accuracy of the case, the request for rework will be referred 
        to NIOSH. If the information would not change the outcome of 
        the dose reconstruction, the DEEOIC Health Physicist will send 
        an e-mail to the claims examiner and the district office NIOSH 
        liaison explaining the rationale for not continuing the review 
        of the dose reconstruction report. When the claims examiner 
        receives this response, he/she must [proceed with the 
        appropriate calculation for adjudication of the claim].''

    Between July 25, 2003 and November 16, 2006, DOL has returned 1,891 
cases to NIOSH to have the dose reconstruction redone. The vast 
majority (1,677 or 88 percent) of these ``reworks'' have been cases in 
which the probability of causation (PoC) based on the NIOSH dose 
reconstruction was below 50 percent and thus would result in a denial 
of benefits. In these cases, the issues to be addressed by NIOSH would 
have the potential to increase the dose and thus may result in a PoC 
greater than 50 percent resulting in eligibility for benefits. There 
were only 224 cases returned for rework in which the PoC was initially 
over 50 percent with only 10 of these returned due to technical issues 
related to NIOSH's application of methodology. These statistics reveal 
that, if anything, DOL's analysis of dose reconstruction reports leans 
towards the side of the claimant, generally resulting in the potential 
for a more favorable decision.

                              FAB REMANDS

    In addition to reworks, DOL also reviews dose reconstruction 
reports at the final adjudication level if a claimant raises a 
technical objection to a dose reconstruction, or if the Final 
Adjudication Branch hearing representative identifies a possible error. 
Claimants may either raise these objections in a written statement to 
the hearing representative or through an oral hearing. If a hearing 
representative receives such an objection or otherwise identifies a 
dose reconstruction issue, the case is forwarded to a DEEOIC Health 
Physicist to determine whether the objection merits returning the case 
to NIOSH for revision of the dose reconstruction.
    Statistics regarding the resulting remand orders issued by the 
Final Adjudication Branch (FAB) also demonstrate the absence of any 
cost-cutting motive in the DOL process. From the program's inception, 
FAB has issued 3,149 remands of Part B cases, of which 70 percent 
(2,198 cases) were cases in which a recommended decision had been 
issued to deny benefits. Following the remand, the district office 
reviews the case and issues a new recommended decision. Since denials 
make up 63% of all recommended decisions on Part B cases, but 70% of 
all remands involve denied cases, FAB remands a higher ratio of denials 
than approvals. Only 30 percent (951 cases) of remanded cases had a 
recommended decision to approve benefits initially, of which only 17 
percent were remanded due to issues with a dose reconstruction.

                      DIRECTOR'S ORDERS TO REOPEN

    Finally, a review of Director's Orders issued to reopen claims also 
reveals a careful attention to, and concern for, claimants' interests. 
A Director's Order is issued after a final decision by the FAB when a 
review of the claim or additional evidence reveals that the final 
decision should be vacated. This can occur based on a claimant's 
request for a reopening, or based on the Director's review of the claim 
for any reason. For example, information provided in a subsequent dose 
reconstruction report for another claimant may indicate that dose was 
missed for previously decided cases, and the Director has reopened such 
cases so that NIOSH can determine if the additional exposures also 
apply to those cases. DOL's performance relative to Director's Orders 
for reopening claims clearly demonstrates that DOL is committed to 
paying benefits when claimants are entitled. Since the inception of 
EEOICPA, 548 Director's Orders have been issued. With a very few 
exceptions, all Director's Orders to date have been issued on cases 
that have been denied by the FAB, vacating the decision and returning 
the case to the district office for further development or acceptance. 
The only approved cases that have been reopened have occurred when an 
employee dies before receipt of benefits. In these cases, a Director's 
Order is issued to vacate the final decision and offer the opportunity 
for an eligible survivor to apply for benefits. Additionally, most 
Director's Orders (269 cases) were issued without the claimant 
requesting such action, demonstrating the program's commitment of the 
program to ensure accuracy and deliver all benefits to which claimants 
are entitled.

                        SEC CLASS DETERMINATIONS

    The creation of new SEC classes requires close coordination between 
DOL and NIOSH to determine which cases at the site in question have 
been affected by the new class and which continue to require dose 
reconstruction. Since NIOSH and the Advisory Board began discussions 
about the declaration of new classes, DOL has continually worked to 
ensure that the definitions of the class membership and the rationales 
presented as the basis for the new classes are clear, consistent, and 
fair.
    Prior testimony before this Subcommittee asserted that DOL opposed 
SEC classes or sought to narrow them out of a purely ``budget driven'' 
agenda. Again, as I testified in March, this is not the case. Although 
DOL has a fiduciary responsibility with respect to the EEOICPA program, 
our efforts have been aimed at ensuring consistency and replicability 
of SEC declarations across the whole DOE complex and over time. 
Further, we have sought to ensure that SEC class declarations are 
undertaken with full knowledge of their implications--that is, while a 
class declaration makes eligibility presumptive for claimants with one 
of the listed 22 cancers, those who have an unlisted cancer may have 
their chances for eligibility reduced or expunged depending on the 
basis for the SEC class. In some cases, even those with a listed cancer 
may suffer negative impacts from the declaration. Finally, because each 
new SEC class designation has been unique in its rationale and in its 
impact on how (or if) dose reconstruction can be done for cancers that 
are not granted presumptive coverage, DOL and NIOSH have had to work 
out unique procedures for each class to determine how these cases will 
be processed. The return of large numbers of SEC cases from NIOSH also 
creates a large, unanticipated workload in DOL's district offices, and 
DEEOIC leadership has had to respond to those challenges by shifting 
caseloads among the four district offices. DOL clearly has an important 
need to participate in the SEC class declaration process, and our 
efforts to do so have been, and continue to be motivated by, these 
program imperatives.

                                SUMMARY

    In summary, we believe the record of DOL's administration of 
EEOICPA demonstrates that promises made to the cold war veterans with 
enactment of EEOICPA are indeed being kept. Nearly $2.4 billion in 
monetary and medical benefits have been distributed to over 22,000 
eligible workers and their survivors. Backlogs of cases generated at 
the inception of Parts B and E have been aggressively addressed and are 
rapidly diminishing: 76% of Part B cases have been decided by DOL, with 
another 11% (under 6,000) are awaiting NIOSH dose reconstruction; more 
than 75% of the old Part D backlog inherited by DOL from DOE has 
received an initial determination under Part E, and the remainder will 
be processed to that point in 2007. Approval rates far exceed those 
originally projected for the Part B program, and litigation remains 
remarkably low. A review of DOL's administrative handling of cases 
involving dose reconstruction show that in the great majority of cases 
remanded or returned to NIOSH for reconsideration of dose 
reconstructions, DOL was supporting the claimant's opportunity to 
achieve a better outcome.
    This is not to say that there is not much left to be done. DOL will 
continue to drive towards backlog elimination, strengthen its processes 
and procedures, improve training for its staff, maintain its ongoing 
outreach efforts, extend access to information about the program in 
numerous ways, and continue to provide extensive assistance to 
claimants in obtaining critical employment, exposure, and medical 
evidence to support their claims. NIOSH is similarly engaged in 
clearing out its oldest cases and reaching a steady-state situation, 
and the Department of Energy has redoubled its commitment to support 
both NIOSH and DOL information needs. On balance, the EEOICPA program 
is unfolding as promised, and can be expected to continue to do so.

    Mr. Hostettler. Dr. Howard.

 TESTIMONY OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL INSTITUTE 
               FOR OCCUPATIONAL SAFETY AND HEALTH

    Dr. Howard. Thank you, Mr. Chairman.
    My name is John Howard, the Director of NIOSH of the 
Centers for Disease Control and Prevention and the U.S. 
Department of Health and Human Services. I just wanted to give 
you an update on the claims that we've completed in our 
process.
    Of the 22,761 that have been sent to us by DOL, we've 
returned 16,317, or 72 percent of the claims that we've 
received. Of the first 5,000 claims, which were the ones that 
were in the queue the longest, we've completed 4,899, or 98 
percent of those. We have 4,491 claims remaining, of which 
3,110, or 69 percent, are older than 1 year. Our goal is to 
have, by June of 2007, no claim in our system more than 1 year 
old.
    We've added 10 classes to the SEC. Three more are going to 
be added as of this Sunday unless Congress takes action 
otherwise. So that's a total of 13, covering 11 sites and 1,100 
claimants.
    We have nine petition-requested classes and four NIOSH-
generated classes in that group. Three more NIOSH-generated 
classes are being submitted next week at the board's meeting in 
Naperville, Illinois, along with two petitioner-requested 
classes, for a total of five.
    We have two new resources that are important to claimants 
that I wanted to mention to you today. One is an SEC petition 
counselor. I'm pleased to report that Laurie Ishack of our 
Compensation Analysis and Support office in Cincinnati is 
filling this position; and most importantly, we have a 
petitioner/claimant ombudsman position which will come on board 
shortly, probably tomorrow. I'm pleased to report that Ms. 
Denise Brock will serve as petitioner/claimant ombudsman for 
NIOSH, under contract, reporting to the NIOSH director.
    We have a conflict of interest policy that we've been 
working on most of this year, which we finalized in October; 
and we have a NIOSH conflict-of-interest officer for NIOSH and 
its contractors. We're working toward a mid-December 
implementation date.
    Since my last testimony in March of this year, the board 
has held 29 working group subcommittee or full Board meetings. 
The point I wanted to mention here is that we have provided 
verbatim transcriptions and detailed minutes of all Board 
meetings and the subcommittee meetings of the working groups 
and make them available to the public through our Web site.
    As Ms. Jackson Lee reported at your last hearing in 
November, a witness raised concerns regarding the data quality 
of NIOSH dose reconstructions. We have contacted that witness 
to apologize for the problems created and I apologized to her 
myself on the record. We've conducted conversations and agreed 
with her on an approach to expeditiously correcting the 
deficiencies in her dose reconstruction.
    NIOSH has made a lot of progress in carrying out the 
responsibilities of the Health and Human Services Department 
under this act, and that is due to the input of all parties, 
including this Committee and its staff. It is only when science 
receives the kind of scrutiny in the public forum that is 
robust that we can trust its conclusions. We look forward to 
continuing to make progress, with all parties putting their 
input on the table in a public forum about our science.
    Thank you for the opportunity to testify, and I look 
forward to answering your questions.
    Mr. Hostettler. Thank you.
    [The prepared statement of Dr. Howard follows:]

                Prepared Statement of John Howard, M.D.

    Mr. Chairman and Members of the Subcommittee, my name is John 
Howard and I am 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 pleased to appear before you today to provide testimony on 
the status of HHS activities under the Energy Employees Occupational 
Illness Compensation Program Act of 2000 (``the Act'').
    The role of HHS in this program is to focus on the science of doing 
dose reconstructions, the related issue of considering and deciding 
petitions from classes of employees wishing to be added to the Special 
Exposure Cohort (SEC), and provide support for the Advisory Board on 
Radiation and Worker Health (``the Board''). Other areas of this 
program, such as processing and payment of claims, are under the 
purview of the Department of Labor (DOL), which has lead responsibility 
for administering EEOICPA.
    NIOSH is proud of the work we have done to implement EEOICPA. I 
will update you on the progress NIOSH has made to date, then discuss 
some of the challenges that we are currently addressing.
    As of November 30, 2006, DOL has referred 22,761 claims to NIOSH, 
and NIOSH has returned 72% (16,317) of these to DOL with a completed 
dose reconstruction. NIOSH has returned to DOL an additional 4.9% 
(1,121) for a determination of SEC eligibility; and DOL pulled an 
additional 2.7% (631 claims) for various reasons. Ten classes of 
workers have been added to the SEC to date. Three additional classes 
recently have been approved by the Secretary for addition to the SEC--
they were sent to Congress on November 9, 2006, and will become 
effective on December 9, 2006, unless Congress determines otherwise. At 
the September meeting of the Board, DOL reported that more than $572 
million had been paid to claimants with completed dose reconstructions 
or to members of an HHS added, non-statutory SEC class.
    In October 2005, as part of our commitment to expedite completion 
of the first 5000 cases NIOSH awarded a contract to Battelle Science 
and Technology to assist with the reconstruction of exposure conditions 
at various Atomic Weapons Employer facilities and the completion of 
individual dose reconstructions. Of the first 5000 claims that NIOSH 
received from DOL, we have completed dose reconstructions or sent to 
DOL for adjudication 4899 or 98% of the cases. NIOSH has committed to 
completion of these first 5,000 claims as a top priority so claimants 
can have resolution of their cases.
    NIOSH also has taken the step of initiating petitions for adding 
classes to the SEC when NIOSH lacks data to estimate radiation doses 
with sufficient accuracy. Of the ten SEC classes that have been added 
to date and the three that will become effective this week, four were 
NIOSH-initiated: Linde Ceramics Plant in New York, Nevada Test Site, S-
50 Thermal Diffusion Plant in Tennessee, and Los Alamos National 
Laboratory in New Mexico. Three more, Allied Chemical, Harshaw 
Chemical, and General Atomics, have been initiated and submitted to the 
Board for consideration at the Board meeting next week.
    For petitioner-initiated SECs, we have two new resources to assist 
petitioners: the SEC Petition Counselor and the NIOSH Petitioner/
Claimant Ombudsman. The SEC Petition Counselor will provide guidance to 
anyone who wishes to submit an SEC petition. She will assist the 
petitioner(s) in understanding the complex development, submission, 
qualification, evaluation, and Board deliberation processes that the 
petition will undergo. NIOSH's goal is to help everyone understand the 
complete petition process, and the SEC Petition Counselor will work 
with petitioners to help them overcome frustration or confusion that 
they may feel when submitting an SEC petition. Petitioners may also 
turn to the NIOSH Petitioner/Claimant Ombudsman. I am pleased that Ms. 
Denise Brock, who has testified before your subcommittee about her 
diligent and successful effort with the SEC petition of Mallinckrodt 
Chemical Works in Missouri, will be the NIOSH Petitioner/Claimant 
Ombudsman. She will be an independent, objective resource person to 
help with NIOSH interactions with claimants and petitioners. Ms. Brock 
will be a contractor employee with three specific goals: first, to hold 
individual meetings with claimants and petitioners to assist them in 
the claims and SEC processes; second, to facilitate workshops presented 
to groups of claimants and petitioners; and third, to review and 
suggest improvements in the communications vehicles NIOSH uses in 
interacting with claimants and petitioners. Ms. Brock will report her 
findings directly to the NIOSH Director's Office. Ms. Brock will be a 
tremendous asset to both the claims and SEC petition processes.
    I am pleased also about the completion of another effort that has 
been months in the making. On October 17, 2006, NIOSH finalized and 
posted on our website the conflict of interest policy for the EEOICPA 
program activities. The policy had been presented to the Board in draft 
form and was revised in response to comments from the Board and the 
public. All covered entities, including NIOSH and its contactors and 
subcontractors, will post on their respective websites by December 17, 
2006, their procedures for demonstrating compliance with the policy. I 
have appointed a NIOSH Conflict of Interest Officer, who has held a 
planning meeting to start implementation by NIOSH of the policy. Since 
NIOSH is committed to transparency in all aspects of EEOICPA program 
activities, all conflict of interest disclosure forms will be posted on 
our website or can be accessed through a weblink on our website.
    As I have mentioned, the Board provides guidance and oversight for 
HHS EEOICPA activities, focusing on scientific detail and peer review 
of the soundness of NIOSH's scientific work, and provides 
recommendations to the Secretary on the addition of classes to the SEC. 
HHS provides administrative services, funds, facilities, staff, and 
other necessary support services.
    I reported to you in my March testimony that the Board had met a 
total of 46 times in working groups, subcommittee, and as the full 
Board. Between March and now, the Board has been especially busy, 
holding 20 working group meetings, 6 Board meetings, and 3 subcommittee 
meetings. The next Board meeting will be next week, December 11-13, 
2006, in Naperville, Illinois. The Naperville site was chosen for the 
Board meeting so that interested claimants and petitioners from 
Blockson Chemical Company, one of five SEC petitions to be considered 
by the Board at the meeting, may more easily attend the meeting and 
address the Board during the public comment period.
    The Board provides guidance to HHS on all aspects of EEOICPA 
program activities and we greatly appreciate its meticulous efforts. 
Since NIOSH is dedicated to transparency in all aspects of the program, 
all Board meetings, including working group meetings, are publicly 
announced and open to the public. We exceed the requirements of the 
Federal Advisory Committee Act (P.L. 92-463) by providing verbatim 
transcriptions and detailed minutes of all Board meetings, including 
those of working groups, and making them available to the public 
through our website.
    To assist the Board in its work, CDC uses a technical support 
contractor, Sanford Cohen & Associates (SC&A). SC&A assists to the 
Board in reviewing NIOSH's dose reconstruction estimates, site profile 
documents, and SEC petition evaluations.

                                SUMMARY

    In conclusion, NIOSH has made much progress in carrying out the 
responsibilities of HHS under EEOICPA: we have completed more than 
16,000 dose reconstructions, representing 72% of the over 22,000 claims 
received. Together with those covered by a SEC class, this has resulted 
in almost $600 million in compensation. But we still have a long way to 
go. We will continue to value transparency in all activities and strive 
to ensure that all of our work is of the utmost reliability and 
integrity. We look forward to continuing to make progress in our work 
to assist the heroes who have cancer as a result of exposure to unique 
hazards in building the Nation's nuclear defense.
    Thank you again for the opportunity to testify. I am happy to 
answer any questions you may have.

    Mr. Hostettler. Mr. Bertoni.

 TESTIMONY OF DANIEL BERTONI, DIRECTOR, EDUCATION, WORKFORCE, 
  AND INCOME SECURITY ISSUES, U.S. GOVERNMENT ACCOUNTABILITY 
                             OFFICE

    Mr. Bertoni. Good afternoon, Mr. Chairman, Members of the 
Subcommittee. I'm pleased to be here to discuss work on the 
Energy Employees Occupational Illness Compensation Program, 
which provides benefits to individuals who are exposed to 
hazardous materials who develop illnesses such as cancer and 
lung disease. The Department of Labor administers the program 
with the assistance from HHS, NIOSH and an independent Advisory 
Board.
    To date, Labor has made payments to over 21,000 claims, 
totaling $1.7 billion. We have issued several reports 
identifying needed improvements in this program. However, since 
the issuance of our February 2006 report, a memo from the 
Office of Budget to Labor has renewed congressional concern 
about program management, the potential efforts by the 
Administration to inappropriately contain compensation 
benefits.
    My testimony today will focus on three areas. First, I'll 
discuss our prior work, documenting problems with claims 
processing and program design; second, I'll discuss key 
findings from a report on the work of the Advisory Board; and 
third, I'll highlight an aspect of our ongoing work that is 
relevant to the OMB memo.
    In summary, GAO has maintained a constant audit presence in 
regard to this program. In 2004, we reported that a shortage of 
qualified physicians hinders timely adjudication of Subtitle B 
claims, and without needed changes, many claimants could wait 
years to pursue workers' compensation. In the interim, their 
medical condition could deteriorate or they could die. We 
concluded that specific actions were needed to expedite claims 
processing, enhanced communications with claimants, and 
improved case management data. In the same report, we 
identified a structural problem that could lead to inconsistent 
benefit outcomes. Our analysis of cases in nine States showed 
that over 3,000 lacked a willing payer of benefits and were 
likely to be contested. We outlined various options for change 
and the Congress subsequently enacted legislation to 
dramatically restructure the program.
    In 2004, we also reported that in the first 2-1/2 years of 
implementation, Labor and NIOSH had processed only 9 percent of 
the more than 21,000 claims referred for dose reconstruction, 
primarily due to the complexity of this workload. Because site 
profiles are often critical to processing dose reconstructions, 
we recommended that specific time frames be established for 
completing all remaining profiles.
    Earlier this year, we reported that the roles of certain 
officials initially involved in the Advisory Board's review of 
dose reconstructions may not have been sufficiently 
independent. Since credibility is essential to the work of the 
Board, we cautioned that continued diligence was required to 
avoid actual or perceived conflicts. They also found, in the 
first 2 years, the Board's contractor had spent almost 90 
percent of the $3 million allocated for a 5-year undertaking. 
We recommend various actions to enhance the Board's oversight 
role.
    Finally, GAO is currently conducting work for this 
Subcommittee on a range of Subtitle B issues. One aspect of our 
review is especially relevant to the OMB memo and includes 
examining whether Labor, in an effort to constrain program 
costs, is involved in activities primarily tasked to NIOSH, the 
Advisory Board or the Board's contractor. While it is 
reasonable for OMB to monitor the cost of Federal programs, 
concerns have been raised that certain options in the OMB memo 
could result in decisions unduly based on budgetary 
considerations rather than established scientific procedures.
    Our work in this area is ongoing. We have not drawn any 
conclusions. However, I would like to briefly highlight some 
preliminary observations in areas we plan to focus on going 
forward. We know that Labor's internal correspondence indicates 
substantial concern about rising program costs and new SEC 
petitions. We also know that NIOSH has shared draft versions of 
key documents such as Special Exposure Cohort petition 
evaluations with Labor before finalizing and sending them to 
the Advisory Board for review. NIOSH also recently agreed to 
allow Labor to review and comment on drafts of various 
technical documents such as site profiles, technical basis 
documents, and technical information bulletins, all of which 
are used for dose reconstructions.
    Labor has provided comments on these documents. Officials 
told us that the basis for their involvement is Labor's 
designation as the lead agency for administration and that 
their input is aimed at promoting clarity and consistency in 
the adjudication of claims.
    Labor has also reviewed thousands of dose reconstructions 
completed by NIOSH and returned many cases for rework. 
Officials told us that they review all reconstructions, return 
them if they find factual or methodological errors. We are 
currently examining extent, nature and outcome of Labor's 
comments on these various documents. This includes requesting 
all relevant documentation and related data. As the review 
proceeds, we plan to obtain more information on key issues such 
as timing, nature and basis of Labor's activities.
    Mr. Chairman, this concludes my statements. I'd be happy to 
answer any questions that you or other Members of the 
Subcommittee may have. Thank you.
    Mr. Hostettler. Thank you, Mr. Bertoni.
    [The prepared statement of Mr. Bertoni follows:]

                  Prepared Statement of Daniel Bertoni




    Mr. Hostettler. We will now turn to questions.
    Mr. Hallmark, your testimony today states that the 
Department of Labor has a helpful role to play in defining the 
parameters for who should be treated as part of the Special 
Exposure Cohort and who should be excluded. You also assert 
that this has nothing to do with cost containment.
    However, in an October 2005 Department of Labor memo, 
prepared for the OMB, it states, ``DOL has also experienced 
problems in several cases with a description of the class 
adopted by the National Institute for Occupational Safety and 
Health, or NIOSH. In view of the effect and costs of an 
overexpansive definition, we suggest that such determinations 
also be subject to OMB clearance.''
    Explain why involvement with setting up the class 
definition does not also overlap with the Department of Labor's 
agenda to reduce the costs of benefits.
    Mr. Hallmark. Well, first of all, Mr. Chairman, we don't 
have an agenda to reduce costs. As I have said before and I 
will continue to say, our agenda has been and continues to be 
to focus on accomplishing consistent, fair and legally 
sufficient outcomes. That has been and will continue to be our 
approach.
    With respect to the issues that you're raising from the 
October memorandum, those are all issues associated with the 
OMB memo, passback memo, that has been discussed since the 
March hearing. OMB testified before you that they are not 
pursuing those options, the Administration is not pursuing 
them, the Department of Labor is not pursuing them; they are, 
in effect, a debate that's over. I believe that that is, in 
fact, a clear description of the situation.
    Mr. Hostettler. Let me just ask you, are you familiar with 
this memo that states, ``In view of the effect and costs of an 
overexpansive definition, we suggest that such determinations 
also be subject to OMB clearance?''
    Are you familiar with that memo?
    Mr. Hallmark. I'm not sure whether I'm familiar with that 
particular memorandum or e-mail, but I'm sure those terms are 
used in a lot of the e-mails that occurred, especially in that 
time frame.
    Our interest is in consistency and fairness and lawful 
outcomes. The use of the costs comes in when people ask us for 
estimates of costs, and it's a shorthand way of discussing the 
significance, the size of a particular kind of issue that's 
being discussed. But that doesn't change the fact that the real 
concern there is consistency and fairness.
    What we want to do is make sure that everybody is treated 
fairly in this; and as I said earlier, in establishing a 
particular class, HHS is granting benefits, presumptive 
benefits, to some individuals who have one of the 22 listed 
cancers. By the same decision, they are reducing the 
possibility of benefits being received by the other 40 percent 
who don't have one of those listed cancers. So that's one of 
the issues that we have tried to impress upon the Board, NIOSH 
and HHS, that ideally the SEC designations should be done very 
carefully and with an idea toward trying to avoid negative 
impacts, where it can be done.
    Mr. Hostettler. Have you received any communications from 
OMB, formal communications in memorandum form, ordering the 
Department of Labor to cease and desist from implementing the 
OMB passback memo?
    Mr. Hallmark. I'm not aware of a specific memorandum but 
there have been many communications that I have been made privy 
to in terms of both the statements made by OMB before this 
Committee and letters directly to various Members of Congress. 
Those are shared with me and with my leadership; and it's very 
clear what the position of the Administration is, and we are 
following that position.
    Mr. Hostettler. So is there official documentation that can 
be accessed by the Committee similar to the passback memo?
    What we're suggesting is, there's a lot of discussion and 
rhetoric and it's all very encouraging rhetoric. But is there 
any official communication between the Office of Management and 
Budget and the Department of Labor with regard to the passback 
memo and to negate its impact?
    Mr. Hallmark. I am aware of numerous conversations, e-
mails, and as I said, the public documents that I have 
referenced just a minute ago. There may be other documents that 
I haven't seen, but I'm not aware of them. In any case, the 
policy is clear.
    Mr. Hostettler. Could you make these public documents 
available to the Committee? We have not seen these public 
documents.
    Mr. Hallmark. The documents I was referring to are letters 
from OMB to Members of Congress.
    Mr. Hostettler. But that's actually more rhetoric. My 
question is a formal indication to the Department of Labor that 
the passback memo is null and void, and that's not what I'm 
hearing. Is there such a memo that says the passback memo is 
void?
    I'm hearing a lot about conversations and letters written 
to Members of Congress, but is there--is there a document 
similar to the passback memo that has been--communication that 
has been made in memo form saying that the passback effectively 
is null and void?
    Mr. Hallmark. Not to my knowledge or recollection.
    Mr. Hostettler. Thank you.
    Dr. Howard, the Advisory Board on radiation worker health 
is required to have a balance of scientific medical and worker 
perspectives. Today, only two bring a worker perspective and 
only two bring a medical perspective. Do you consider the Board 
to be in balance with the requirements of EEOICPA? If not, 
explain the steps that the Administration has taken to rectify 
the imbalance with the statutory requirements.
    Dr. Howard. Yes, Mr. Chairman. I'm not sure that right now 
with vacancies on the Board that anyone can argue we're in 
balance, because we have vacancies. I think our role in this at 
NIOSH is to collect opinion from any party, the Board, any 
public member, others who would like to nominate individuals to 
serve on the Board; and then to look into their nomination, get 
a resume together and then forward those recommendations to the 
White House. This is a Presidential advisory committee, so we 
ourselves don't make those selections.
    Personally, I'd like to see our board filled with all of 
its statutory members and to have that balance of scientific, 
medical and worker perspectives, so--when we lose any 
individual in any of those three groups then we lose that 
perspective, so it's important that we have that balanced 
perspective. I'm hoping that the President's appointment office 
will work expeditiously to fill those vacancies.
    Mr. Hostettler. My time for this first round has concluded, 
but before I move on, Dr. Howard, I just want to commend you 
for your naming of the two new resources to assist petitioners, 
the petition counselor and the petitioner/claimant ombudsman, 
and especially the naming of Ms. Brock as your petitioner/
claimant ombudsman. I appreciate that extraordinary effort to 
reach out to claimants to create that point of contact in both 
cases.
    The Chair will now recognize the gentlelady from Texas, Ms. 
Jackson Lee, for questions for 5 minutes.
    Ms. Jackson Lee. Dr. Howard, allow me to echo the remarks 
of the Chair in terms of those appointees and appointments and 
the changes that have been made.
    Mr. Hallmark, let me--in this season of joy, you have a 
very interesting name, so I will try to be as joyous as I can; 
but I believe I made some opening remarks--I indicated that if 
the appropriate representative of the DOL--and this is not to 
disregard your position to make changes, at least sufficient 
changes to give Congress the impression that what you're saying 
today is all the way up the food chain--and that means the 
Secretary of Labor from my perspective--but that we will treat 
this process in the respectful way that it should be treated.
    And despite the representations, there's sufficient 
documentation that speaks to cost containment and sufficient 
frustration by those covered and petitioning for compensation 
and those not covered that there seems to be a need, whether 
OMB needs to make a public statement, a printed document that 
clarifies that their job and task is not to short change, 
contain and make more difficult the rights of the petitioners 
or victims who are seeking compensation.
    So let me just cite for you an incident that occurred last 
week when the Department of Labor apparently told a health care 
provider of services under this program that it was being 
terminated. This frightened sick workers who did not have the 
time or the ability to quickly secure a replacement health care 
provider eligible for reimbursement by DOL. In one case, we are 
advised the patient is in end-stage disease and lives in a 
rural area.
    How many claimants were affected by the proposed 
termination of this health care provider and how many States? 
Did DOL suspend payment for this vendor's services, and if so, 
what was the reason? And what can be done to ensure that 
claimants are not cut off by health care services abruptly when 
you terminate a provider?
    Mr. Hallmark. Ms. Jackson Lee, first, let me go back to the 
issue of the OMB memorandum that has been discussed by both 
yourself and the Chair. I neglected to mention that the OMB 
document, the original OMB document that started this entire 
discussion, enunciated a series of options. It was not a 
directive to the Department of Labor or anyone else; it was a 
series of ideas for discussion. Those ideas were never 
implemented. They aren't part of any directive to the 
Department of Labor or other entities. So that probably 
explains why there's not an OMB document directing that they 
not be followed.
    Ms. Jackson Lee. What would be very helpful--and I 
appreciate the testimony on the record--is a letter to that 
effect from the Department of Labor and from the Secretary of 
Labor that this was an advisory document, that to date no such 
practices have been implemented; and I'd go a step further to 
say at this juncture no such steps are intended to be 
implemented.
    Of course, every agency, as every Member of Congress, has a 
right to change as conditions change, but that would be a very 
helpful document as we try to help fix this issue.
    Mr. Hallmark. I understand.
    To return to the second part of your question regarding the 
health care provider, this is a reference to a company by the 
name of Professional Case Management. I'll start by answering 
your second question.
    DOL did not propose to terminate services by this health 
care provider to any of the claimants involved. I believe there 
are roughly 50 individuals that this provider sent letters to 
saying that they, the provider, was going to cut off services, 
but that was not at DOL's instruction. There has, in fact, been 
an ongoing dispute between this provider and the Department of 
Labor regarding billing practices. We identified rather serious 
problems with the billings being provided by this company, and 
we put their bills under suspension for manual review. The 
company was issued its letters because the manual review has 
been slower than we would like, or they would like, and we are 
taking steps to make sure that review is accelerated.
    But under no circumstances did we want those individuals to 
have their provider services cut off; and we have arranged, as 
of last Friday, with the company that those services will 
continue to all of the individuals who received that letter and 
to any other individuals for whom they're authorized as a 
provider.
    Ms. Jackson Lee. Thank you.
    Let me move quickly. I do want to say, Mr. Hallmark, when 
is the final rule going to be issued under Subtitle E? It has 
been more than 18 months since the interim final rule was 
issued, and a number of important issues need to be resolved in 
the final rule that have been left in limbo.
    Can you explain the delay?
    Mr. Hallmark. The final rule is scheduled for completion 
before the end of this calendar year, and I'm confident that 
will be accomplished. The process, as you know with any 
regulation, takes a substantial amount of time, and there's a 
large number of entities and individuals who review the 
document. It is in that review process, and I expect it will be 
completed----
    Ms. Jackson Lee. You will take input still if there's some 
concerns that we may have on the final rule?
    Mr. Hallmark. The rule is in the process of review within--
following the comment period. So we don't have an opportunity 
at this point to accept additional comments.
    Ms. Jackson Lee. Let me, Dr. Howard, just mention that 
Texas has been particularly disadvantaged with this legislative 
process.
    There is no site profile for the Texas City Chemicals 
Plant. I happen to have been in the area of Texas City and 
elsewhere where these seniors are located and to hear their 
passionate plea, ``Can you help us?'' and ``Can you bring 
Congress down to our community so we can tell our stories?"
    Let me try to understand how NIOSH will do dose 
reconstruction for workers at Texas City Chemicals and just, 
from your view, your perspective on legislation that might help 
correct that by adding those areas that have not been included 
in this previous legislation.
    Dr. Howard. My understanding is, the statute does not cover 
contractors for AWE sites, and I believe that is an issue that 
is in your legislation. It's a class of workers without 
recourse under this program in terms of eligibility.
    Ms. Jackson Lee. Do you see the value in assessing workers 
like that? I know Congress is charged to legislatively change 
it, but you're in the HHS. Can you see the value of trying to 
correct that problem?
    Dr. Howard. Definitely. Uranium or any other radioisotope, 
it doesn't matter what your employment status is, if you're 
near it, it's going to influence your body.
    So from that perspective, from the scientific or medical 
perspective, I can't myself, as a physician, understand the 
distinguishing characteristics. However, I can certainly 
understand from the point of view of policy why those kinds of 
decisions were probably made in 2000.
    But from a medical standpoint, there's no distinguishing 
characteristic there.
    Ms. Jackson Lee. I'm sorry, I didn't catch your answer as 
to--I know that these are subcontractors; is there any work 
NIOSH is doing on that?
    Dr. Howard. Not under the current law.
    Ms. Jackson Lee. So what we would absolutely need is a 
change in the law. And therefore there are victims, of course, 
that are not being responded to because of--I call it ``this 
quirk in the law,'' frankly, and nothing more, nothing less.
    I appreciate your medical opinion, which is, exposure is 
exposure, and it's up to the policymakers to try to define how 
we can assist these individuals who have been impacted.
    Dr. Howard. Yes.
    Ms. Jackson Lee. The Labor-HHS Appropriations Act of 2006 
required NIOSH to submit a report on whether there are 
additional radiosensitive cancers which should be added to the 
list of 22 cancers. The report was due on June 30th.
    What is the status of that report?
    Dr. Howard. That report is under review, final review, I 
hope, by the Department.
    Ms. Jackson Lee. And any light at the end of the tunnel?
    Dr. Howard. I wish I had some light to shed on this. I do 
know that it's under review by the Department, and I make 
inquiries of the Department on a regular basis.
    We would have liked to have been on time. We're not. We 
apologize for that, but I'm sure people in the Department whose 
responsibility it is to review this are working hard on this.
    Ms. Jackson Lee. Mr. Chairman, I know we're writing a lot 
of letters, but I would appreciate a letter to the Secretary of 
Health and Human Services to encourage a more expeditious 
response. This is now December and it is the end of the year. 
It was due in June and it's an important document--maybe a 
letter to encourage a speedier response.
    Mr. Hostettler. I'll be glad to join the Ranking Member on 
that.
    Ms. Jackson Lee. I'd appreciate it. Thank you, Mr. 
Chairman.
    Mr. Bertoni, thank you very much for your presence here. 
You have mentioned internal correspondence at the Labor 
Department which reflects major concerns about the potential 
for rapidly expanding costs in Subtitle B benefits. Can you 
give us some representative examples of internal correspondence 
that reflect these concerns?
    Mr. Bertoni. I believe you're referring to page 9 of our 
formal statement. That's essentially a roll-up of--we only 
recently have begun to essentially wade into 4,500 pages of 
documents that were received by this Subcommittee for both 
Labor and NIOSH; and as we have begun to do so, we've noticed 
some memorandums and e-mails that pique our interest in terms 
of Labor's concern about increasing costs. And essentially we 
identified five initially, and we look forward to wading even 
deeper and seeing what else we can find. But it is our initial 
work.
    Really, the five that we identified dealt with the 
Mallinckrodt and the Iowa SEC petitions. I have the background 
materials that we used to roll up that one statement, and it 
refers to, we have five memos. Essentially the first is an 
April 14, 2005, assessment of Special Exposure Cohort issues 
that states, ``--and it's the director of OWCP--The ultimate 
impact of these two SECs, Iowa and Mallinckrodt, being granted 
would be to destabilize the entire rationale for the dose 
reconstruction process.'' One logical outcome would be a move, 
gradual or sweeping, to grant SEC status across the board. We 
estimate a $7 billion 10-year price tag for that eventuality.
    A February 22, 2005, memo from the director states--and 
it's to the Secretary of Labor, that indicates that the 
addition of these two new Special Exposure Cohorts could, 
``threaten the stability of the current Part B program and 
would cause a $7 billion increase over 10 years if all sites 
became SECs,''--a very real possibility.
    A January 27 memo--it's actually an e-mail from the 
director, states, indicates that the addition of several 
classes of employees at the Mallinckrodt and Iowa Army 
Ammunition Plant facilities to SEC would ``lead almost 
inevitably to SEC petitions being brought and accepted at 
virtually all DOE sites. That equates to added costs of 
somewhere between $5 to $10 billion over 10 years.'' We have 
others that essentially express the same concerns.
    To us, there are some terms in here, some statements that 
we really want to follow up on with the agency to get their 
sense of what exactly are they talking about in terms of 
undermining the program, opening the floodgates per se by 
allowing these two SEC petitions to go forward.
    So we are continuing to pursue this and we have not had the 
interviews that we will need to follow up with these folks to 
find out exactly what the rationale was behind some of these 
statements.
    Ms. Jackson Lee. We thank you for very good and objective 
work.
    Mr. Chairman, I ask for unanimous consent of the list that 
Mr. Bertoni has just mentioned, that the list of the memos of 
Mr. Bertoni could be added to the record.
    Mr. Hostettler. Without objection.
    Ms. Jackson Lee. All right. Let me just say, none of us 
here are criticizing efficiency--and I'll close on this 
question--efficiency and concern about the importance of 
conserving and/or respecting the resources of the American 
people, but I'm disturbed by the litany or the list of memos 
that really go to the heart of compensation and decision-
making, particularly impacting what Dr. Howard and his team are 
doing. And so my question to you is that, as we looked at 
these--or you've seen this list, and it appears that there may 
be translated from the list of memos an intervention by the 
Department of Labor to undertake reviews on what NIOSH is 
doing.
    Do you see the appropriate nexus and connection that they 
should be interfering with what NIOSH is doing in their SEC 
petition evaluations and technical assessments that they're 
making?
    Mr. Bertoni. Well, initially, under--under Executive Order 
13179, Labor is tasked with it being the administrator for this 
program. So, from a ``keep the trains moving'' operational 
standpoint, they should have some role in reviewing some of the 
key documents that affect the implementation of this program.
    What we're interested in is, over time, what has been the 
nature and extent of these reviews, and exactly, have they 
crossed over beyond clarity and consistency issues to, perhaps, 
questioning the science of a particular dose reconstruction 
site profile or petition. So, initially, we can't say whether 
that has occurred, and--but over the next coming months and 
weeks, we will be honing in on exactly those issues. We will be 
very interested in timelines pre and post memo, trends over the 
latter several months versus prior to the memo, and should be 
able to put together a--through data mining and analysis--a 
good sense of trends and the nature of the reviews and, at some 
point, make a determination of whether a line has been crossed, 
but I'm not in a position to make that determination right now, 
but we will be following up on that.
    Ms. Jackson Lee. My time is up, Mr. Chairman.
    I just wanted to say that, Mr. Bertoni, we appreciate the 
effort to keep the train and the whistles and the bells going, 
but we don't want the train to be derailed. And I think that's 
an important question that has to be both asked and answered. I 
thank you for your testimony.
    I yield back, Mr. Chairman.
    Mr. Hostettler. I thank the gentlelady.
    The Chair has a couple of questions to ask of our 
witnesses.
    First of all, Dr. Howard, the Department of Labor has 
suggested internally that NIOSH has acquiesced to, ``claimant, 
Advisory Board and political pressure and allowed the Advisory 
Board to operate essentially as a worker advocacy 
organization.'' Much of this criticism seems to be centered 
around special cohort approvals and related rulemaking.
    My first question is: Is the Advisory Board providing peer 
review or worker advocacy? And two, does Mr. Hallmark's 
characterization of NIOSH square with the reality as you see it 
as agency director?
    Dr. Howard. With regard to the first question, I would say, 
most definitely, the Board provides peer review vital to the 
program. As I mentioned in my oral statement, science without 
that robust criticism from all parties--and the Board provides 
our formalistic paradigm for that together with its contractor, 
SC&A. Without that, then we at NIOSH have no assurance that our 
scientific conclusions merit the respect that we think they 
deserve, and in that process, the Board performs a vital 
function for us, so I would say that the Board does that very 
well. As I said, I'd like to see the Board fully balanced so 
that we have true worker representatives on our Board, but I 
think that the Board does a great job, in that regard, of peer 
review.
    Mr. Hostettler. Well, in that, let me just ask one more 
question. Do you think the Advisory Board is more or less 
susceptible to, say, political pressure than NIOSH in these 
determinations?
    Dr. Howard. Well, I'm not sure more or less. I think--I 
think the Board is a robust organization as a Presidential 
Advisory Board. They engage in robust discussion on a regular 
basis both in their formal meetings as well as in their 
subcommittee and working group meetings. Each issue is aired 
until everyone is satisfied. It's an exhaustive review that, I 
think, in the beginning when this program was being developed, 
nobody realized the nature and the scope of the review that 
would be necessary to settle some of these scientific 
questions. So, in that regard, again, I think the Board is 
performing a vital function for us at NIOSH.
    Mr. Hostettler. Thank you, and then the second question: 
The Department of Labor's characterization of NIOSH, does that 
square with reality?
    Dr. Howard. And the characterization again? I'm sorry.
    Mr. Hostettler. With regard to worker advocacy.
    Dr. Howard. Well, I don't think that paints an accurate 
picture, myself. I think what we're dealing with here are 
scientific issues that involve workers, so they are, by 
definition, worker advocacy-oriented because we're dealing with 
exposures to workers. We think that our dose reconstructions, 
our technical basis documents, our SEC petition evaluations are 
scientifically balanced. We don't pay any attention to whether 
we're favoring one side or the other. We look at the science, 
and we want to make sure, through this process where we have a 
number of parties looking at it, that it is scientifically 
sound however it turns out.
    Mr. Hostettler. Thank you.
    Mr. Bertoni, what are the specific conflict roles that the 
GAO identified with respect to the NIOSH Advisory Board and its 
audit contractor as it pertains to the NIOSH compensation 
program officials?
    Mr. Bertoni. The prior work I had noted?
    Mr. Hostettler. Yes.
    Mr. Bertoni. Yes. Essentially, the--I'll give you one 
example. The project officer who is essentially responsible for 
overseeing the contract was, in fact, in charge of the--the 
program under review at one point, so that was clearly, in our 
view, a conflict of interest that was--that was addressed. 
Also, I believe the contracting officer was also a member of--
or charged with attending Advisory Board meetings--was also 
an--recording minutes and doing other functions for the 
Advisory Board--was also an officer or a manager in one of the 
programs under review. So that, again, was clearly a conflict 
that--ultimately, it was resolved, though.
    Mr. Hostettler. So personnel changes were made.
    Are there any structural changes that you would suggest 
should be made in order to relieve the notion of conflict of 
interest?
    Mr. Bertoni. To the Board or relative to our current work 
looking at NIOSH's oversight of the ORAU?
    Mr. Hostettler. Well, either.
    Mr. Bertoni. I think the adjustments that were made to the 
board in its organization right now--we're not aware of any 
specific conflicts. We do have ongoing work that is going to 
look at what's in place now to at least provide for a 
reasonable amount of--to insulate the board from conflicts of 
interest and, beyond that, look at other options that one could 
take to strengthen the independence of the board and avoid 
conflicts of interest, and we have prior work where we've 
looked at in-depth analysis on at least nine other Advisory 
Boards, and it was at the broader review a couple years ago in 
2004. We've actually documented best practices that you could 
take to strengthen conflict of interest and independence of 
Federal Advisory Boards, and that's going to be part of our 
criteria as we move forward and look at the relationship 
between NIOSH and the contractor ORAU.
    Mr. Hostettler. Thank you.
    Does the Gentlelady from Texas have any further questions?
    Ms. Jackson Lee. I do.
    Mr. Hostettler. The Chair recognizes the gentlelady from 
Texas for 5 minutes.
    Ms. Jackson Lee. Thank you.
    Mr. Bertoni, let me follow up on the line of questions of 
the Chairman. How important is the transparency in the 
appointment of the members of the Advisory Board that makes 
recommendations on the ``special exposure cohort'' 
applications?
    Mr. Bertoni. As I just noted, we have a body of work that 
actually looks at the boards and committees, and we've come 
down on record to say that transparency is important not only 
in terms of the selection of board members, the identification 
of candidates, the vetting, the process of determining 
qualifications, their specific points of view. Transparency in 
that entire process as well as in their day-to-day operations 
can only serve to--at least from a public perception 
standpoint, to increase one's view of the integrity of that 
particular board. So there are--at the time of our last review 
where we looked at this, there were 900 similar boards. We 
drilled down on nine and essentially identified good practices, 
best practices that various boards do engage in to try to 
create situations where boards are perceived and actually do 
function very independently and with little conflicts of 
interest. So, throughout that--their deliberations and process, 
there should be transparency still; those looking in from the 
outside can be assured. You may not agree with the decision, 
but you at least are confident that--or are assured that the 
process, the integrity of the process, was there.
    Ms. Jackson Lee. You just said something that may be--that 
may not be the jurisdiction or the agenda for this particular 
hearing, but you said there were 900 Advisory Boards about?
    Mr. Bertoni. Yes. At the time of our review, there were 
approximately 950, I think we cited in the report.
    Ms. Jackson Lee. And those boards are not subject to 
congressional confirmation; is that correct?
    Mr. Bertoni. Correct.
    Ms. Jackson Lee. Most of them are not?
    What kind of--it's good to say ``transparency,'' and it's 
good to have the GAO, and you've been very effective, I think, 
in answering some of these concerns, but what kind of 
partnership with Congress would be effective? We have offered 
the suggestion of congressional appointment. There can be 
congressional reporting of the Advisory Board, names to 
Congress, but I really do think that we miss checks and 
balances, and that is an enormous component of Government. 
That's 900 Advisory Boards making, I believe, very important 
decisions, and what we've found with some difficulty is, of 
course, that we may be challenged as it relates to 
transparency. What kind of partnership do you think, 
prospectively, this whole contingent of Advisory Boards might 
be able to have with Congress?
    Mr. Bertoni. I'll preface this with the fact that we 
haven't really looked at 5840 and all the elements of it.
    Ms. Jackson Lee. I understand.
    Mr. Bertoni. We are well aware. We have in place as one of 
the options we are considering as we look at other models for 
where you might move with strengthening the integrity--or the 
independence of an Advisory Board or in terms of developing its 
selections.
    Ms. Jackson Lee. A portion being appointed and a portion 
coming through the Congress?
    Mr. Bertoni. Correct. Yes.
    My general reaction to the selection process is I think it 
should be open. It should be open to several sources of 
nomination as he noted. There are--there are ways that certain 
boards get the word out that they are looking for nominees. 
They're going as far as publishing this in the Federal 
Register, but I think, right from the start, it should be a 
public process to announce we are looking for qualified 
members, opening it up to nominations from various sources, and 
there should be a public vetting and approval process and even 
right down to the point of looking at the prospective person's 
past statements, prior employment to get--to get a good sense 
of not only technical expertise but also their particular point 
of view, and I don't see any reason why Congress from its 
oversight standpoint can't request key information leading up 
to the selection of the board.
    Ms. Jackson Lee. Sir, I think that's an excellent 
direction.
    Dr. Howard, without giving names, your present Advisory 
Board is how large?
    Dr. Howard. Right now, statutorily, I think there are six 
scientific members, three medical members and three worker 
reps. I believe that we're down one medical and one worker rep.
    Ms. Jackson Lee. And I think----
    Dr. Howard. He's nodding that I'm correct.
    Ms. Jackson Lee. And your scientific members are academic 
or in companies?
    Dr. Howard. They can be a mixture of both. They usually 
have academic credentials. They may not be in an academic 
setting, but they tend to be academically oriented.
    Ms. Jackson Lee. Do you agree with transparency along with 
the vigorous oversight or input that you've just articulated is 
clearly important, one, to protect the victims of this 
particular Advisory Board?
    Dr. Howard. Definitely. Transparency of the members of the 
Presidential Advisory Board is very critical because we're 
making the kind of decisions that the Chairman referred to 
where people can perceive them as biased, so it's extremely 
important that we be as transparent as possible.
    Ms. Jackson Lee. So any attempt to help enhance that 
transparency, whether it's a congressional partnership or 
oversight, might be constructive?
    Dr. Howard. Well, I'll leave that to Congress, but 
certainly, from my perspective, we do everything possible at 
NIOSH to ensure that our processes of selection recommendation 
to the President and this Advisory Board is as transparent as 
possible, so that's certainly something that we have in common.
    Ms. Jackson Lee. Mr. Hallmark, let me just conclude by 
saying to you, you've presented a case of innocence, and we do 
appreciate, first of all, your presence here today. You can 
sense--sense some consternation with the process that we've had 
to pursue, but I would ask, as you've made your presentation, 
that you glean from this hearing the importance of this issue 
and the need to compensate victims fairly. NIOSH needs to be 
able to work effectively. Frankly, I think that the program is 
fractured by not including those subcontractors, but most of 
all, we want to hear that the Department of Labor will view its 
role in moving the compensation ball forward and not the role 
of containment--is that my understanding?--cost containment 
outside the ordinary business responsibilities that all 
agencies have. This program is a program that was set up to 
compensate, through the legal procedures that NIOSH has 
instigated, the victims.
    Mr. Hallmark. Well, I would repeat that many of the 
documents and e-mails that are being discussed here today date 
back to a debate that was associated with the OMB memorandum of 
last fall, a year ago. Those documents, in effect, came to a 
close with the Administration determination not to proceed with 
any of the options that had been presented, so I think it's 
important to look at this from the perspective of time frames.
    One of the witnesses in the previous hearing talked about a 
memorandum that I had written in February, I believe it was, of 
2006. That was--and suggested that that indicated that we were 
continuing to pursue a cost-cutting agenda. In fact, that 
memorandum was written before OMB issued its decision before 
this Committee and in other venues about not pursuing those 
options. So that's, in my view, past history. My testimony 
today talks about the fact that we are looking at the program 
to make sure it's fair and to make sure that we're compensating 
people and as quickly as we can, and as I'd repeat the notion 
that, in our review, for example, of the dose reconstruction 
reports that we get from the--from the NIOSH, we want to make 
sure they're right; 2,000 of those cases have been sent back 
for rework for various reasons, and almost 90 percent of those 
reworks were on cases where the NIOSH outcome was less than 50 
percent and the individual was not going to get a benefit. We 
sent them back to give the individual another chance, and I 
believe in something like 350 of those cases, the individual 
ended up receiving the benefit.
    That's what we're supposed to do. That's what we are doing 
on an ongoing and constant basis. We're not trying to stop 
claims. We're not trying to save money. We know that this 
program is very important, and we know that the benefits are 
mandatory benefits. So we decide after the inputs from NIOSH 
and other--and other sources that the claim is payable, and it 
will be paid, and that's--that's the best--that's the way this 
operation is supposed to work, and that is our goal. So we 
are--we are of like minds in that regard, I believe, and we 
proceed down the path to make sure the program is, in fact, 
honoring its promises.
    Ms. Jackson Lee. So the era that we have passed through on 
this cost-containment memo is behind us at this juncture?
    Mr. Hallmark. The only thing I'm stumbling on is the issue 
of a cost-containment memo. The OMB memo, which issued options 
which were at issue for a number of months, is behind us 
because the Administration/the Department of Labor are not 
proceeding with that set of options.
    Ms. Jackson Lee. Thank you.
    I hope that we will get the solution, Mr. Chairman, for the 
victims. That is the only reason why the two of us are here and 
have been here for five hearings consistently, and I hope that 
you will continue your interest and advocacy, and I would hope 
that this would be--find its way to the top of the agenda for 
the 110th Congress. People are really, really in need, and I 
thank the witnesses, and I yield back.
    Mr. Hostettler. I thank the Gentlelady.
    I also want to thank the witnesses for your input and your 
addition to the record. It's been most helpful.
    I would advise the Subcommittee that all Members will have 
2 legislative days to make additions to the record and that 
this Subcommittee will be making significant submissions to the 
public record. The business before the Subcommittee being now 
completed, we are, without objection, adjourned.
    [Whereupon, at 5:35 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable John N. Hostettler, a 
  Representative in Congress from the State of Indiana, and Chairman, 
        Subcommittee on Immigration, Border Security, and Claims




       Prepared Statement of the Honorable Sheila Jackson Lee, a 
Representative in Congress from the State of Texas, and Ranking Member, 
        Subcommittee on Immigration, Border Security, and Claims



Significant documents and communications related to the Subcommittee's 
  oversight of the Energy Employees Occupational Illness Compensation 
                              Program Act




                                 
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