[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
______
U.S. GOVERNMENT PRINTING OFFICE
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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
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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
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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