[House Report 106-1024]
[From the U.S. Government Publishing Office]
Union Calendar No. 594
106th Congress, 2d Session - - - - - - - - - - - House Report 106-1024
MANAGEMENT PRACTICES AT THE OFFICE OF WORKERS' COMPENSATION PROGRAMS
U.S. DEPARTMENT OF LABOR
__________
NINTH REPORT
by the
COMMITTEE ON GOVERNMENT REFORM
together with
ADDITIONAL VIEWS
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
December 4, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
__________
U.S. GOVERNMENT PRINTING OFFICE
89-006 WASHINGTON : 2000
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS III, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, District of
MARK E. SOUDER, Indiana Columbia
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Robert A. Briggs, Chief Clerk
Phil Schiliro, Minority Staff Director
Subcommittee on Government Management, Information, and Technology
STEPHEN HORN, California, Chairman
JUDY BIGGERT, Illinois JIM TURNER, Texas
THOMAS M. DAVIS, Virginia PAUL E. KANJORSKI, Pennsylvania
GREG WALDEN, Oregon MAJOR R. OWENS, New York
DOUG OSE, California PATSY T. MINK, Hawaii
PAUL RYAN, Wisconsin CAROLYN B. MALONEY, New York
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
J. Russell George, Staff Director and Chief Counsel
Bonnie Heald, Director of Communications/Professional Staff Member
Heather Bailey, Professional Staff Member
Elizabeth Seong, Clerk
Trey Henderson, Minority Counsel
LETTER OF TRANSMITTAL
House of Representatives,
Washington, DC, December 4, 2000.
Hon. J. Dennis Hastert,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: By direction of the Committee on
Government Reform, I submit herewith the committee's ninth
report to the 106th Congress. The committee's report is based
on a study conducted by its Subcommittee on Government
Management, Information, and Technology.
Dan Burton,
Chairman.
C O N T E N T S
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Page
Summary of oversight findings and recommendations................ 1
Introduction..................................................... 1
Jurisdiction..................................................... 1
I. Findings.........................................................2
II. Summary of investigation.........................................2
III. Background.......................................................2
IV. Areas of concern.................................................3
V. Recommendations..................................................3
VI. Subcommittee investigation.......................................3
A. Fairness of the non-adversarial system to claimants... 4
B. Delays in the claims adjudication process............. 7
C. Accountability of the Office of Workers' Compensation
Programs............................................. 7
D. Poor customer service at the OWCP..................... 8
VII. Final recommendations...........................................11
Appendix......................................................... 13
VIEWS
Additional views of Hon. Henry A. Waxman, Hon. Jim Turner, Hon.
Tom Lantos, Hon. Major R. Owens, Hon. Edolphus Towns, Hon.
Carolyn B. Maloney, Hon. Eleanor Holmes Norton, Hon. Chaka
Fattah, Hon. Elijah E. Cummings, Hon. Dennis J. Kucinich, Hon.
Rod R. Blagojevich, Hon. Danny K. Davis, Hon. John F. Tierney,
Hon. Harold E. Ford, Jr., and Hon. Janice D. Schakowsky........ 15
Union Calendar No. 594
106th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 106-1024
======================================================================
MANAGEMENT PRACTICES AT THE OFFICE OF WORKERS' COMPENSATION PROGRAMS
U.S. DEPARTMENT OF LABOR
_______
December 4, 2000.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Burton, from the Committee on Government Reform
submitted the following
NINTH REPORT
On October 19, 2000, the Committee on Government Reform
approved and adopted a report entitled, ``Management Practices
at the Office of Workers' Compensation Programs U.S. Department
of Labor.'' The chairman was directed to transmit a copy to the
Speaker of the House.
Summary of Oversight Findings and Recommendations
Introduction
Jurisdiction
The Committee on Government Reform (``committee'') has
primary legislative and oversight jurisdiction with respect to
``Government management generally,'' as well as ``overall
economy, efficiency, and management of Government operations
and activities.'' \1\ The committee also has the
responsibility:
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\1\ Clause 1(h) (4) and (6) Rule X of the Rules of the House of
Representatives, 106th Cong.
[T]o determine whether laws and programs addressing
subjects within the jurisdiction of [the] committee are
being implemented and carried out in accordance with
the intent of Congress [through the] review and study
on a continuing basis the application, administration,
execution, and effectiveness of laws and programs
addressing subjects within its jurisdiction. [The
committee shall review and study] any conditions or
circumstances that may indicate the necessity or
desirability of enacting new or additional legislation
addressing subjects within its jurisdiction.\2\
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\2\ Id., Clause 2(b)(1) (A) and (C).
Pursuant to this authority, the Subcommittee on Government
Management, Information, and Technology (``subcommittee'')
convened various oversight hearings to explore: Management
Practices at the Office of Workers' Compensation Programs, U.S.
Department of Labor.
I. Findings
The committee found the following areas to be of primary
concern within the Office of Workers' Compensation Programs:
Those responsible for the administration of the
Federal Employees' Compensation Act at the Office of Workers'
Compensations Programs within the Department of Labor are not
providing adequate information or services to claimants who
file appeals;
Management practices of the Office of Workers'
Compensation Programs at the Department of Labor are not
focused on customer service;
Federal agencies are not providing adequate
assistance to their injured Federal workers; and
Actions are needed to improve management practices
and customer service in the Office of Workers' Compensations
Programs at the Division of Federal Employees' Compensation,
Department of Labor and at employing Federal agencies.
II. Summary of Investigation
Since 1998, the Subcommittee on Government Management,
Information, and Technology has held three investigative
hearings and interviewed hundreds of people on the Government's
process of compensating Federal employees who are injured while
fulfilling their work-related duties.\3\
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\3\ Subcommittee on Government Management, Information, and
Technology: ``Oversight of the Management Practices at the Office of
Workers' Compensation Programs,'' 105th Cong., 2d sess., Serial No.
105-200 (July 6, 1998); ``Oversight of Customer Service at the Office
of Workers' Compensation Programs,'' 106th Cong., 1st sess., Serial No.
106-87 (May 18, 1999); ``Federal Workers' Compensation Program: Are
Injured Federal Workers Being Treated Fairly?,'' 106th Cong., 2d sess.
(Sept. 21, 2000).
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Although the Office of Workers' Compensation Programs
[OWCP] has undergone some changes to enhance customer service,
injured workers, their union representatives, attorneys and
physicians say the problems remain largely unchanged.
III. Background
The OWCP is responsible for adjudicating and administering
claims of work-related injuries and illnesses as authorized by
the Federal Employees' Compensation Act [FECA].\4\ The FECA
program covers nearly 3 million active duty civilian Federal
employees, providing benefits to those it determines sustain an
injury or illness in the performance of their duties. During
fiscal year 1999, FECA's costs totaled about $1.9 billion in
compensation, medical, and death benefits. Federal employees
filed about 167,000 injury notices last year. And at the end of
fiscal year 1999, the OWCP was administering about 243,000
ongoing injury cases for partial or total disability, including
those from previous years. OWCP officials say they receive an
estimated 2.6 million phone calls and 5.5 million pieces of
mail each year from claimants, medical providers, agencies and
others.
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\4\ 5 U.S.C. Sec. 8101, et seq., as amended.
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Disputes under the FECA are resolved through informal
conferences or formal reconsideration at the district office
level, through administrative hearings, or review by the
independent Employees' Compensation Appeals Board whose
decision is final.
IV. Areas of Concern
A. Fairness of the non-adversarial system to claimants;
B. Delays in the claim adjudication process;
C. Accountability of the Office of Workers' Compensation
Programs;
D. Poor Customer Service at the Office of Workers'
Compensation Programs.
V. Recommendations
A. Provisions of the Federal Employees' Compensation Act
must be enforced, specifically those provisions dealing with
employers who interfere with an employee's legitimate claim for
compensation due to a work-related injury or illness.
B. Provisions in the Federal Employees' Compensation Act
must be clarified to require a third opinion by a qualified
physician when an employee's attending physician and an OWCP
physician disagree on the diagnosis or prognosis of a work-
related injury or disease.
C. The Division of Federal Employees' Compensation within
the Department of Labor should make every effort to provide
telephone access to FECA claimants, their representatives and
medical providers. This effort should include a centralized
communications center.
D. While timeframes must be set for claim resolutions, they
must not be at the expense of a quality, well-thought-out
decision.
E. Congress should consider establishing an independent
board, such as the board overseeing ongoing reforms at the
Internal Revenue Service, to review, make recommendations, and
oversee reforms at the Office of Workers' Compensation
Programs. This board should also consider and recommend to
Congress whether appeals by Federal workers under the Office of
Workers' Compensation Programs should be extended to include
the Federal court system.
VI. Subcommittee Investigation
Over the last 3 years, the Subcommittee on Government
Management, Information, and Technology and numerous
congressional offices have received hundreds of complaints
about the OWCP and the manner in which it handles the Federal
Workers' Compensation Programs.
In addition to receiving these complaints, many of which
were substantiated by documentation, the subcommittee has
conducted oversight, including three hearings on the subject
under the chairmanship of Representative Stephen Horn (R-CA).
Based on this oversight, the subcommittee found the following:
A. Fairness of the non-adversarial system to claimants
The subcommittee held its first hearing on the ``Oversight
of the Management Practices at the Office of Workers'
Compensation Programs'' on July 6, 1998 in Long Beach, CA.\5\
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\5\ ``Oversight of the Management Practices at the Office of
Workers' Compensation Programs,'' 105th Cong., 2d sess. (1998).
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During that hearing, Mr. Joseph Perez who, at the time, was
a hearing representative for the OWCP testified that the
original intent of the Federal Employees' Compensation Act was
to create a non-adversarial, or non-litigious, system that
would provide employers with a predictable future liability
that they could incorporate into their overhead. The act was
also intended to provide Federal employees who are injured
during the course of their employment with swift, sure benefit
recovery without the necessity of litigation.
Mr. Perez went on to state: ``As long as both parties
receive the results of that covenant, they are satisfied.
However, I believe that justice is not being done to Federal
employees. And the testament to that fact is the enormous
number of complaints which have arisen regarding this system.''
Despite materials presented by the OWCP that indicate the
program is approving most cases and making timely decisions,
Mr. Perez said: ``I suggest that the facts indicate that these
statements are not true. In fact, benefits are not swiftly
provided . . . I maintain that the proceedings are adversarial
in nature.''
Mr. Perez said that the number of hearing requests had
risen dramatically over the previous 9 years because of the
poor quality of decisions by OWCP claims examiners, who
generally deny claims. Among the increased number of case
hearings, 45 percent were remanded, or ordered to be reviewed
by a second examiner or hearing officer, Mr. Perez stated.
Among those cases that reached the Employees Compensation
Appeals Board [ECAB]--the system's final appeals board--41
percent were sent back to the OWCP for review, Mr. Perez
stated. However, later testimony by ECAB Chairman Michael J.
Walsh on September 21, 2000, stated that the percentage of the
ECAB's remanded cases was currently 25 percent.
Mr. Perez indicated during his testimony that there were
several factors involved in the claim denials, including the
Division of Federal Employees Compensation's efforts to lower
costs to Federal departments and agencies by reducing the
number of lost production days due to on-the-job injuries.
Mr. Perez stated:
The Division of Federal Employees Compensation has set
yearly goals for reducing the number of lost production
days between now [1998] and fiscal year 2002. . . .
[T]hat is a fine goal, and I believe that injured
employees should be brought back to work as soon as
medically suitable. But when the No. 1 goal for the
agency is to reduce the number of lost production days,
I am sure you can see that this is susceptible to abuse
and quotas . . . [S]ince the introduction of Quality
Case Management Procedures and early nurse
interventions, as I mentioned earlier, there has been a
22 percent increase in hearing requests. There seems to
be a correlation between these techniques for getting
people back to work and their dissatisfaction with the
decisions. . . . [T]hese individuals have legitimate
claims, and when they reach an appellate level, their
case is being approved. . . . I maintain, Mr. Chairman,
that these aggressive procedures to reduce the number
of lost production days are forcing legitimately
disabled employees back to work in inappropriate
jobs.\6\
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\6\ Id. Testimony of Joseph Perez.
Other witnesses have substantiated Mr. Perez's claims.
During the July 6, 1998, hearing Mr. Sammy Lopez, a supply
technician at the Veterans Administration Hospital in Long
Beach, CA, testified that in 1994 he sustained a work-related
injury to his left ankle, neck and head that left him with
permanent pain.\7\
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\7\ Id. Testimony of Sammy Lopez.
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Mr. Lopez testified that:
At every step of the process, I was met with resistance
from my employing agency and [the] Federal agency
responsible for safeguarding my FECA rights, the Office
of Workers' Compensation Programs.
Three months after my injury, I was advised that the
employing agency, [VA's OWCP manager] Arline Rubin,
directed medical staff personnel to alter the
physician's orders that had placed me off work, and
instead provide light duty status. This caused
unnecessary aggravation and stress and interfered with
my relationship with my supervisor at work and my
physician.
Overall, Mr. Lopez said, ``Her [Arline Rubin's] zealous
approach as a VA OWCP manager was never in the interest of the
injured employee. She did everything in her power to interfere
with my ability to convalesce, obtain compensation, and obtain
the appropriate medical surgery.''
Mr. Lopez ultimately received the necessary surgery on July
30, 1996, 26 months after the date of injury. He later returned
to the VA hospital as a union representative.
Witnesses at each of the subcommittee's three hearings \8\
also said they believed that the physicians who rendered the
second professional opinions in their cases were biased toward
denying their claims. Few, if any, had been seen by an
arbitrating third physician, which under most programs would be
required when there are conflicting medical opinions.
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\8\ In addition to the July 6, 1998 hearing, the Subcommittee on
Government Management, Information, and Technology held hearings on May
18, 1999, and Sept. 21, 2000.
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In addition, Mr. Perez stated that when enacted in 1916,
the Federal Employees' Compensation Act read as follows:
[T]hat in case of any disagreement between the
physician making an examination on the part of the
United States and the employee's physician the
commission shall appoint a third physician, duly
qualified, who shall make an examination.\9\
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\9\ 39 Stat. 747 Sec. 22 (codified at 5 U.S.C. Sec. 771).
Mr. Perez maintains that the language of the original law
was not substantively altered by the 1996 changes in the
act.\10\ Nevertheless, Mr. Perez said, ``despite this clear
statutory mandate, the OWCP Procedural Manual contains the
following instructions'':
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\10\ 5 U.S.C. Sec. 8123(a).
[t]he findings or opinions of [the second opinion
physician] will often differ from those of the
claimant's attending physician. If of equal weight, the
differing opinions would constitute a conflict
requiring referral to a third physician. This is a
time-consuming process which is not always necessary.
Frequently a decision can be reached by weighing the
medical evidence of record without referral to a
referee specialist.\11\
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\11\ FECA Procedural Manual, (chs. 2-810.9h) Office of Workers'
Compensation Programs, U.S. Department of Labor.
Another problem, according to Mr. Perez's prepared
statement on July 6, 1998, and confirmed by Attorney James
Linehan at the subcommittee's hearing on May 18, 1999,\12\ is
that in most courts of law, the ``attending physician rule''
prevails, but not at the OWCP.
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\12\ ``Oversight of Customer Service at the Office of Workers'
Compensation Programs,'' 106th Cong., 1st sess., Serial No. 106-87 (May
18, 1999).
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Mr. Linehan stated:
Under most circumstances in courts of law or otherwise,
the attending physician rule prevails. This rule is
quite simple. In a contest between the injured
claimant's qualified attending medical physician and an
agency's non-attending consultative examiner regarding
medical treatment, the qualified medical
recommendations and reports of the attending physician
prevail and take precedence over the paid consultant.
The U.S. Federal Court of Appeals and the U.S. Social
Security Administration recognize that the ``attending
physician rule'' was developed because such an opinion
``reflects an expert judgment based on a continuing
observation of the patient's condition over a prolonged
period of time.'' \13\
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\13\ Foster v. Heckler, 780 F.2d 1125, 1130 (4th Cir. 1986)
(quoting Mitchell v. Schweiker, 699 F. 2d 185, 187 (4th Cir. 1983)).
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However, Mr. Linehan said,
[t]he exact opposite holds true in OWCP claims. 5
U.S.C. Sec. 8123 states that when there is a conflict
in medical evidence of equal weight, the opinion of the
hired medical consultant of the OWCP prevails over that
of the claimant's attending physician. The detailed
medical treatment reports of a Federal employee's
attending physician are considered less qualified than
the medical report of a non-examining physician
retained and paid by OWCP. This occurs despite the fact
that the employee's attending physician's expert
judgment reflects the continuing observation of the
patient's condition over a prolonged period of time.
With total unilateral control by the OWCP over the
medical treatment of the Federal employee, it is in the
best interest of OWCP not to recognize the attending
physician rule. The OWCP, with unilateral control over
its choice of the prevailing medical report needs only
to ``shop around'' for a paid consultant to state any
medical diagnosis the OWCP so desires. With such
unilateral control over the claimant's own attending
physician, the OWCP has no incentive to act in the best
interest of the Federal employee.
However, in a July 26, 1999 letter responding to followup
questions from the subcommittee's ranking member, Jim Turner
(D-TX), the OWCP Deputy Director, Shelby Hallmark, stated:
The policy followed by OWCP and the ECAB in weighing
the opinion of a treating physician is consistent with
the approach taken by administrators of other benefit
programs such as the Social Security Administration.
The ``attending physician rule'' is nothing more than a
jurisprudential principle regarding the weight to be
given to particular medical evidence. While the rule
is, in fact, based in part upon the treating
physician's ``continuing observation of the patient's
condition over a prolonged period of time,'' the SSA,
by regulation, gives controlling weight to the opinion
of a treating physician only if it is ``well-supported
by medically acceptable clinical and substantial
evidence in (the) record.''
B. Delays in the claims adjudication process
Nearly all witnesses stated that they had to wait months or
years for the adjudication of their claims. Claimants are given
30 days to request a hearing if they choose to refute the
OWCP's disposition of their case. However, witnesses testified
that it can take as long as 2 years before the hearing occurs.
And if a claim is remanded (returned to OWCP for further
examination), that review process can take another 23 months.
If claimants seek a final appeal through the Employees
Compensation Appeals Board [ECAB], which is independent of the
OWCP but reports to the Secretary of Labor, the process can
take an additional 2 years.
At the subcommittee's third hearing on September 21,
2000,\14\ Michael J. Walsh, of the Employees' Compensation
Appeals Board [ECAB] stated that about 25 percent of the cases
that are appealed to the ECAB are reversed, or sent back to
OWCP for review, because of a factual or legal error, or
because the case needs further development. ``Our role is to
review whether they've correctly looked at the facts and
correctly looked at the law. If we disagree on either of those
issues . . . that would be a basis for sending it back,'' Mr.
Walsh said.
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\14\ ``Federal Workers' Compensation Program: Are Injured Federal
Workers Being Treated Fairly?,'' 106th Cong., 2d sess. (2000).
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C. Accountability of the Office of Workers' Compensation Programs
Mr. Linehan stated that the one overriding concern common
to all areas of the OWCP claims handling process, is the OWCP's
lack of accountability to any overseer. Mr. Linehan stated that
the OWCP is essentially a self-governing, self-regulating
Federal agency that answers to no court of law, which has
resulted in a Federal agency that is not required to answer or
account for its actions (or lack of action).
According to Mr. Linehan, there is no incentive, legally or
economically, for the OWCP to act in the ``best interest'' of
the Federal employee. In reality, quite the opposite occurs. It
is in the ``best interest'' of the OWCP and the employing
Federal agency to delay, stall or deny claims because such non-
action saves the OWCP from claims payments.
In effect, Mr. Linehan stated, this lack of accountability
by the OWCP has directly led to the rapidly growing refusal of
qualified medical practitioners across the United States to
medically treat injured or diseased Federal civilian employees.
The OWCP mandates that it must pre-approve and authorize
medical treatment, however, the OWCP is under no timeline
requiring it to issue such approval and authorization for
medical treatment. The injured Federal worker who needs
immediate medical treatment must first find a physician who
will treat him or her. But physicians are highly reluctant to
accept the cases because they are aware that they may not be
paid for months, years, or at all by the OWCP.
In addition, Mr. Linehan stated that there are less than a
handful of practicing attorneys across the United States who
will represent Federal civilian employees in their workers'
compensation claims because there is no court review. ``No
review means no payment,'' he said.
Without accountability, Mr. Linehan stated, the OWCP is
free to act in any manner it desires toward an injured Federal
civilian employee. The OWCP is free to refuse to respond to
claimants' telephone calls; free to refuse to acknowledge
receipt of correspondence or medical records from claimants or
their physicians; and is free to delay or wrongfully deny due
compensation benefits to the claimant.
D. Poor customer service at the OWCP
One of the leading complaints among all of the claimants,
union representatives, physicians and attorneys, including
those who have testified before the subcommittee, was their
inability to contact a representative at the OWCP to obtain
information regarding the status of their claim or obtaining
authorization for medical treatment.
Similar complaints have been stated in hundreds of letters
received by the subcommittee as well as in hearing testimony.
At the subcommittee's hearing on May 18, 1999, for example, Ms.
Beth Balen, administrator of the Anchorage Fracture and
Orthopedic Clinic in Anchorage, AK, testified:
When calling the USDL [United States Department of
Labor], it is not possible to call and speak to a
person. The caller punches numbers and leaves a
message. The message process that must be followed to
get information or leave a message for a call back is
very long, and there is no way to bypass the message
(such as pushing ``0'' for an operator) and reach a
person. Recent experience has shown an improvement in
the timeliness of call-backs, but the process is
frustrating, particularly when a doctor is waiting for
information, or a patient is in the office, waiting for
help.
Also at the May 18, 1999, subcommittee hearing, Mr. John
Riordan, first vice president of the American Federation of
Government Employees [AFL-CIO], which represents approximately
25,000 Social Security Administration employees, gave the
following testimony regarding the OWCP's telephone policy in
the New York district office:
I encounter difficulties contacting agents because of
the voice mail system. You are no longer able to speak
with an agent. Instead, I have to leave voice-recorded
messages. When I receive no response, I have to write
to them even though I work in the same building where
they are located. They imposed a strict policy
restricting visitors to their offices a couple of years
ago.
Despite efforts at the OWCP to upgrade its telephone
systems over the last 5 years, an October 3, 2000, report by
the General Accounting Office [GAO] confirmed that it is
extremely difficult to reach employees at most of the OWCP's
district offices by telephone.\15\ Between January and
September 2000, the GAO placed 2,400 telephone calls to OWCP's
12 district offices, attempting to obtain the same type of
information an injured Federal worker might request. To compare
the OWCP's goals and practices for telephone communication with
those of model organizations, the GAO also surveyed three
agencies that have won awards for their telephone communication
practices: the Social Security Administration, the Department
of Veterans Affairs' Benefits Administration and the State of
Ohio's Bureau of Workers' Compensation.
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\15\ U.S. General Accounting Office testimony, ``Office of Workers'
Compensation Programs: Goals and Monitoring Are Needed to Further
Improve Customer Communications,'' GAO-01-72T, Oct. 3, 2000.
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To evaluate these systems, the GAO used criteria suggested
by the National Partnership for Reinventing Government, which
was based on an extensive study of high-performance customer
service organizations in the private sector and their best
practices for providing telephone service.
These criteria suggest, for example, the following
telephone service goals:
99 percent of callers can access the telephone
system;
98 percent of callers reach a customer service
representative; and the time waiting on line be no more than 30
seconds; and
85 percent of callers' inquiries should be
resolved during the first call.
The GAO found that the Social Security Administration,
Department of Veterans Affairs' Benefits Administration and
Ohio's Bureau of Workers' Compensation varied in whether they
established goals for these measures. All three had goals for
telephone access, two had goals for the portion of callers
reaching representatives and the time they must wait on-line,
and one had a goal of resolving inquiries on the first call.
The OWCP had set no goals that conform with the three NPR-
suggested goals. The OWCP did, however, have a goal of
returning 90 percent of phone calls to those who left messages
not related to medical authorizations. The OWCP also had a
separate goal in fiscal year 1999 of returning 95 percent of
the calls related to medical authorizations within 3 days.
However, GAO surveyors found wide differences in their
ability to access the telephone systems at the OWCP district
offices, much less obtain information. These failed attempts--
which occurred because of busy signals, no answer after 1
minute, or a message erroneously stating that the phone number
was invalid--ranged from the lowest, zero percent of the calls
at the Boston (MA) district office, to the highest rate of
failed calls, 54 percent, at the Jacksonville (FL) district
office. Surveyors made an average of 200 calls per office.
The reasons given for these failures also varied. In
Jacksonville, surveyors frequently experienced busy signals
because district officials said that they believe it is better
for a customer to receive a busy signal than to remain on hold
for an extended period of time at the caller's expense. In San
Francisco, surveyors were unable to access the phone system
approximately 40 percent of the time; the District Director
told the GAO that the problem was caused by a flaw in the phone
system that had existed for years. She said that although
customers hear the phone ringing, the system does not recognize
that someone is calling. She said that she had spoken with
officials from the phone company and communications officials
at the Department of Labor, but the problem remained
unresolved. The OWCP's Acting Director told the GAO that the
San Francisco telephone problem had been resolved as of
September 13, 2000, and that a July purchase of eight
additional telephone lines would increase the system's
accessibility.
The GAO telephone survey also confirmed the difficulty in
attempting to speak to an OWCP representative at most district
offices. Surveyors found that the percentage of times they were
unable to reach any district employee within 5 minutes varied
from 13 percent of the time at the Cleveland office to 97
percent of the time at the Jacksonville district office. OWCP
employees could not be contacted in 86 percent of the calls to
the Dallas district office, and in 80 percent of the calls to
the New York district office. The most frequent reasons why GAO
surveyors failed to reach an OWCP employee were that they were
still receiving a busy signal or no answer after 15 rings; they
were transferred to a voice mail box after selecting the option
to speak to a representative; they were still on hold 5 minutes
after selecting an option to speak to an employee; or they were
disconnected after selecting an option to speak to an employee.
Officials at five district offices visited by the GAO said
they had too few employees to answer the phones, adjudicate
claims and perform the other services they must provide. Some
offices, such as Dallas, uses e-mail for medical
authorizations, congressional contacts, and general inquiries.
In addition, the national office and four district offices are
taking steps to provide customers information on the Internet.
The National Partnership for Reinventing Government
estimates that organizations that answer a caller's question on
the first call will spend less time and about half the
resources as organizations that take multiple calls to answer
inquires. According to the GAO, OWCP Acting Director Shelby
Hallmark recognizes the benefits of answering the initial
calls. He said that an ongoing program to make more claimant
information available to district office computer terminals
could help achieve that goal. But he also said that
establishing such a goal would be more appropriate for an
organization with a call center and a staff whose sole
responsibility is answering telephone calls. Instead, Mr.
Hallmark told the GAO that OWCP district offices, which have
other responsibilities, receive the calls and many prefer to
direct them to voice mail and respond at a later time.
The GAO noted that the OWCP's budget request for fiscal
year 2001 requested funding for a toll-free telephone number
for medical authorizations, telephone system hardware upgrades,
additional communications specialists, and expanded access to
automated information for injured workers.
The telephone system, however, was only part of the overall
communications problem for a witness at the subcommittee's May
18, 1999, hearing. OWCP claimant Thomas Mike Chamberlin, a
former FBI special agent, was one of the few witnesses who
successfully contacted an OWCP official by phone, but the
result was equally unsatisfactory. In attempting to resolve
conflicting information from OWCP representatives, Mr.
Chamberlin faxed a question asking about his right to
reconsideration, along with the appropriate legal citation, to
the OWCP's Director and Assistant Director Sheila Williams.
According to Mr. Chamberlin's testimony, he later called
and spoke to Ms. Williams. The OWCP Assistant Director told Mr.
Chamberlin that she would have to do some research before she
could answer his question. Further, because of her travel
schedule, it would take her a few weeks before she could call
him back with the information. ``She never returned the call,''
Mr. Chamberlin said.
During the subcommittee's September 21, 2000, hearing the
OWCP Acting Inspector General, Patricia Dalton, acknowledged
that the department has a communications problem, but
attributed it to the clarity of communication rather than
access to department employees. Ms. Dalton stated, ``I think
there's a lot of confusion, we speak in Government jargon as
opposed to plain English. . . . I think the department needs to
do a better job of explaining where we are in a process, what's
going on, what people can expect, what do they need to do.''
VII. Final Recommendations
Based upon the records developed by the Subcommittee on
Government Management, Information, and Technology during its
oversight process, including correspondence with hundreds of
injured Federal workers, the committee makes the following
recommendations.
A. Provisions of the Federal Employees' Compensation Act
should be enforced, specifically those provisions dealing with
employers who interfere with an employee's legitimate claim for
compensation due to a work-related injury or illness.
B. Provisions in the Federal Employees' Compensation Act
must be clarified to require a third opinion by a qualified
physician when an employee's attending physician and an OWCP
physician disagree on the diagnosis and prognosis of a work-
related injury or disease.
C. The Division of Federal Employees' Compensation within
the Department of Labor should make every effort to provide
telephone access to FECA claimants, their representatives and
medical providers. This effort should include a centralized
communications center.
D. While timeframes must be set for claim resolutions, they
must not be at the expense of a quality, well-thought-out
decision.
E. Congress should consider establishing an independent
board, such as the board overseeing ongoing reforms at the
Internal Revenue Service, to review, recommend, and oversee
reforms at the Office of Workers' Compensation Programs. This
board should also consider and recommend to Congress whether
appeals by Federal workers under the Office of Workers'
Compensation Programs should be extended to include the Federal
court system.
APPENDIX
----------
Subcommittee on Government Management, Information, and Technology, of
the Committee on Government Reform
Hearings on the Office of Workers' Compensation Programs (1998 to 2000)
``Management Practices at the Office of Workers' Compensation
Programs,'' July 6, 1998, Long Beach, CA
Witnesses:
Joseph Perez, hearing representative, Office of Workers'
Compensation Programs;
William Usher, hearing representative, Office of Workers'
Compensation Programs;
Sammy Lopez, supply technician, Veterans Administration;
Howard Miyashiro, letter carrier, U.S. Postal Service;
Anthony Burelli, marine electrician, Long Beach Naval
Shipyard;
Roger Euchler, letter carrier, U.S. Postal Service;
Susan Yake, dietitian, U.S. Naval Hospital, Bremerton, WA;
Rachael Santos, postal manager, U.S. Postal Service;
Joseph Jackson, Mailhandlers' union compensation
coordinator;
Michael Kerr, Deputy Assistant Secretary, Director, Office
of Workers' Compensation Programs, accompanied by Shelby
Hallmark, Deputy Director, Office of Workers' Compensation
Programs; and,
Donna Onodera, Director, San Francisco Regional Office,
Office of Workers' Compensation Programs.
``Oversight of Customer Service at the Office of Workers' Compensation
Programs,'' May 18, 1999, Washington, DC
Witnesses:
Thomas Mike Chamberlin, former Special Agent, Federal
Bureau of Investigation;
Dianne McGuinness, former employee of the Social Security
Administration;
Matthew Fairbanks, Special Agent/Pilot, Drug Enforcement
Agency;
Beth Balen, administrator, Anchorage Fracture and
Orthopedic Clinic;
John Riordan, first vice-president, Council 220, American
Federation of Government Employees;
James R. Linehan, attorney, Edmond, OK;
Tina Maggio, field representative, Office of Representative
Michael F. Doyle;
Patricia Dalton, Deputy Inspector General, Office of
Inspector General, Department of Labor, accompanied by Amy
Friedlander, Evaluations and Inspections, Office of Inspector
General; and
Shelby Hallmark, Deputy Director, Office of Workers'
Compensation Programs, Department of Labor, accompanied by
Sharon Tyler, District Director, San Francisco Regional Office.
``Federal Workers' Compensation Program: Are Injured Federal Workers
Being Treated Fairly?,'' September 21, 2000, Washington, DC
Witnesses:
Reginald Sydnor, former attorney, U.S. Equal Employment
Opportunity Commission;
C.B. Weiser, attorney, Weiser Law Offices (Marshall, TX);
Greg Fox, Office of Workers Compensation Programs
representative, American Federation of Government Employees;
Michael Walsh, chairman, Employee Compensation Appeals
Board, U.S. Department of Labor;
Shelby Hallmark, Acting Director, Office of Workers'
Compensation Programs, U.S. Department of Labor; and,
Patricia Dalton, Acting Inspector General, U.S. Department
of Labor.
ADDITIONAL VIEWS OF HON. HENRY A. WAXMAN, HON. JIM TURNER, HON. TOM
LANTOS, HON. MAJOR R. OWENS, HON. EDOLPHUS TOWNS, HON. CAROLYN B.
MALONEY, HON. ELEANOR HOLMES NORTON, HON. CHAKA FATTAH, HON. ELIJAH E.
CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R. BLAGOJEVICH, HON. DANNY
K. DAVIS, HON. JOHN F. TIERNEY, HON. HAROLD E. FORD, Jr., AND HON.
JANICE D. SCHAKOWSKY
I. Introduction
We commend the majority's efforts to highlight the
importance of administering the provisions of the Federal
Employees' Compensation Act [FECA] in a just and fair manner,
and we agree that many of the report's findings and
recommendations are valid. The record before the committee
indicates that Office of Workers' Compensation Programs [OWCP]
should improve its communications problems and customer
services.
However, the majority report, in some instances, lacks
balance. It does not adequately acknowledge the progress the
OWCP has made to date or the ongoing efforts by the OWCP to
improve its programs. Nor does the report sufficiently document
many of its recommendations. Additionally, the minority
recommends that the Employees' Compensation Appeals Board
[ECAB] ensure that the appellants' files are complete before
docketing them.
II. Progress is Being Made
While we acknowledge that there are injured Federal
employees who have not received satisfactory treatment in the
adjudication of their claims, the OWCP has done a generally
sound job. For example, of the roughly 170,000 injuries
reported to the OWCP each year, the majority are approved
without delay, most being approved for payment of medical bills
immediately upon OWCP's receipt of the notice of the injury
from the employing agency.\1\ More than 89 percent of all
claims are approved on initial adjudication.\2\ The percentage
is higher, 93 percent, for traumatic injury claims, which are
generally more straightforward than occupational disease
claims.\3\
---------------------------------------------------------------------------
\1\ Testimony of Shelby Hallmark, House Committee on Government
Reform, Subcommittee on Government Management, Information, and
Technology, hearing on ``Federal Workers Compensation Program: Are
Injured Federal Workers Being Treated Fairly?'' (Sept. 21, 2000).
\2\ Id.
\3\ Id.
---------------------------------------------------------------------------
Additionally, the OWCP has made some improvement on the
timeliness of decisions. The OWCP has an adjudication goal of
45 days for traumatic injuries, 90 days for simple occupational
disease, and 184 days for extended occupational disease.\4\ For
cases that went before the ECAB in fiscal year 1998, the
average time to issue a decision on the merits of appeal
following an oral hearing was 361 days.\5\ That time has been
reduced to 277 days in fiscal year 1999, and it is presently
down to 242 days.\6\ With increased staff and more
sophisticated automated support, the backlog of cases pending
with ECAB has been reduced by 26 percent over the last 2
years.\7\
---------------------------------------------------------------------------
\4\ Id.
\5\ Id.
\6\ Id.
\7\ Id.
---------------------------------------------------------------------------
III. Response to Recommendations
We submit the following additional views to the majority's
recommendations.
LMajority Recommendation A: Provisions of the Federal
Employees' Compensation Act should be enforced, specifically
those provisions dealing with employers who interfere with an
employee's legitimate claim for compensation due to a work-
related injury or illness.
The minority concurs that all provisions of FECA should be
strictly enforced. Claimants deserve a quick and thorough
review of their case under the applicable statutes and
regulations. However, while we agree with this recommendation,
the majority report has not shown sufficient documentation to
support the allegation that the provisions of FECA are not
being enforced. For example, the majority report cites the case
of Sammy Lopez, whose claim was prejudiced by the actions of
the employing agency. According to Shelby Hallmark, Acting
Director of the OWCP, ``we are not guided by agency activity,
and we do as best we can to shield our claims examiners from
being hounded, if you will, as has been suggested here. I don't
believe that our claims examiners in the district offices feel
that they must reach a particular result. And I'm not aware of
agencies attempting to pressure, or they certainly don't
attempt to pressure me to come up with a result of one kind of
another on a case.'' \8\ Other than Mr. Lopez's example, we are
not given any statistical evidence to support the allegation
that interference by employers is a common practice.
---------------------------------------------------------------------------
\8\ Id.
LMajority Recommendation B: Provisions in the Federal
Employees' Compensation Act must be clarified to require a
third opinion by a qualified physician when an employee's
attending physician and an OWCP physician disagree on the
---------------------------------------------------------------------------
diagnosis and prognosis of a work-related injury or disease.
While we believe that the claimant should have every
opportunity to present his or her case, the report has provided
insufficient evidence to support this recommendation. We do not
know, based upon the report, whether a third opinion is always
necessary or prudent from a medical or legal standpoint. The
current policy followed by the OWCP allows claims examiners to
weigh the evidence presented by the two physicians to determine
if it is truly in conflict, or if one opinion takes precedence.
The OWCP has stated that the policy of holding that a medical
conflict does not exist simply because two physicians disagree
is consistent with the approach taken by administrators of
other benefit programs such as the Social Security
Administration.\9\
---------------------------------------------------------------------------
\9\ Letter from Shelby Hallmark, Deputy Director, Office of
Workers' Compensation Programs, to Representative Jim Turner (July 26,
2000).
---------------------------------------------------------------------------
In some cases, the requirement that every disagreement
merit a third party opinion, even when not necessary, could
result in a costly, time consuming burden for the OWCP and the
claimants that would not necessarily result in a better system.
The majority report uses one example, involving Joseph Perez,
to imply that such a recommendation is warranted as whole. We
are not given any other cases, statistical evidence, or legal
opinions which would support the recommendation that would
require an automatic third opinion if a disagreement exists.
While we always support a claimant's right to a third
opinion when merited, we reserve judgment on the majority
report's recommendation until more evidence is presented.
Additionally, the current law regarding the requirement of a
third opinion should be clarified so as to avoid confusion in
future claims adjudications.
LMajority Recommendation C: The Division of Federal
Employees' Compensation within the Department of Labor should
make every effort to provide telephone access to FECA
claimants, their representatives, and medical providers. This
effort should include a centralized communications center.
The minority strongly agrees that every effort should be
made to provide telephone access to FECA claimants. However,
the OWCP also agrees, and has already initiated a wide range of
efforts in this regard, including a $5.7 million budget request
for fiscal year 2001 to fund, among other things, a centralized
call center.\10\ The problem is that Congress has not accepted
this request. Among other things, the requested increase would
provide: a national call center, installation of ``800''
telephone lines for medical authorizations, a review of each
district office by a communication specialist, and telephone
system hardware upgrades.
---------------------------------------------------------------------------
\10\ Testimony of Shelby Hallmark, supra n. 1.
LMajority Recommendation D: While timeframes must be
set for claim resolutions, they must not be at the expense of
---------------------------------------------------------------------------
quality, well-thought-out decisions.
The minority strongly agrees that the OWCP should not
sacrifice quality decisions in order to meet deadlines. Such a
policy would be detrimental to claimants who have legitimate
cases which may, due to the difficult nature of their claim,
take longer to process. Additionally, the failure to thoroughly
consider a decision would be contrary to the policy of FECA,
which is to provide Federal employees who are injured on the
job with a sure benefit recovery without the necessity of
litigation. However, the report has failed to adequately
document that the OWCP is currently issuing decisions based on
a deadline rather than a just and thoughtful review. In fact,
the majority report states that many claimants are subject to
unnecessary delays, often having to wait months and years for
each adjudication process of their claims.
LMajority Recommendation E: Congress should consider
establishing an independent board, such as the board overseeing
ongoing reforms at the Internal Revenue Service, to review,
recommend, and oversee reforms at the Office of Workers'
Compensation Programs. This board should also consider and
recommend to Congress whether appeals by Federal workers under
the Office of Workers' Compensation Programs should be extended
to include the Federal court system.
We acknowledge that Congress should exercise its oversight
role on the OWCP and work to reform any problems that are
preventing injured Federal workers from receiving a fair and
just review of their claims. Additionally, Congress should
consider any legislation that might help achieve the goal of
providing a quality program. However, we are not convinced that
an additional board would be a wise use of taxpayer funds.
Congress is already endowed with the power to hold hearings,
gather information, and enact legislative measures to reform
the OWCP. Congress should not look to a board as a substitute
for responsibilities that it is already equipped to handle.
Furthermore, a board might be unnecessary, unduly burdensome,
and actually serve to delay an attempt by Congress to enact
reform.
IV. Minority Recommendation
In addition to the recommendations in the majority report
that we support, we also recommend that to ensure that an
appellant's case is not remanded due to ministerial
deficiencies, the ECAB have a screening process in place to
ensure that files sent from the OWCP for appeal are complete
before docketing the case.
During the hearing before the Government Management,
Information, and Technology Subcommittee on September 21, 2000,
we were presented with two examples in which an appellant's
case was remanded due to an incomplete file. Clete Weiser, an
attorney from Texas who handles OWCP cases, discussed the case
of John Bright in which the ECAB waited approximately 23 months
to require the appellant to provide proof that she was the
executrix of her husband's estate.\11\ Regarding the John
Bright case, Mr. Weiser stated that a review of the file to
identify missing documents was ``not being done until the 23rd
month. And that's unconscionable, in my view, for an
administrative office to do that.'' \12\
---------------------------------------------------------------------------
\11\ Testimony of C.B. Weiser, House Committee on Government
Reform, Subcommittee on Government Management, Information, and
Technology, hearing on ``Federal Workers' Compensation Program: Are
Injured Federal Employees Being Treated Fairly?'' (Sept. 21, 2000).
\12\ Id.
---------------------------------------------------------------------------
Additionally, Mr. Weiser discussed the case of Dan Gregg,
who appealed his case to the ECAB on May 30, 1998. After
holding the case for approximately 23 months, the ECAB issued
an order remanding the case to the OWCP District Office in
Chicago, IL, to issue a decision on the basis that the OWCP
District Office had not provided the appellant's file to the
ECAB. Upon remand, the District Office reissued its decision
denying the appellant's claim which was promptly appealed to
the ECAB on May 22, 2000. The ECAB has advised that it will not
issue a decision in the appellant's case for another 24
months.\13\ Representative Jim Turner (D-TX) stated that ``the
reason for its remand was the fact that the file wasn't
complete, which seems to me to be a ministerial matter, it
should have been determined within at least 30 to 60 days and
corrected.'' \14\ Mr. Michael J. Walsh, the chairman of ECAB,
agreed, and went on to state ``[i]f in fact they can't get it
to us, then the only thing that we have available to us is what
we call kind of an order to show cause, we say, get the case to
us in 30 days, or we'll have to remand it for reconstruction.''
\15\ In response, Mr. Weiser stated, ``I find it hard to
believe that you cannot determine within the first 30, 60, or
90 days of receiving an appeal, you cannot determine that you
either have or do not have a file from the OWCP district
office. In at least the cases I've had, action is not being
done.'' \16\ According to Mr. Weiser, ``You shouldn't have to
wait 23 months to find out that, gee, you don't have the case
file. And then the case is remanded, and when it goes back up,
now you have another 24 months.'' \17\
---------------------------------------------------------------------------
\13\ Id.
\14\ Testimony of Representative Jim Turner, House Committee on
Government Reform, Subcommittee on Government Management, Information,
and Technology, hearing on ``Federal Workers' Compensation Program: Are
Injured Federal Employees Being Treated Fairly?'' (Sept. 21, 2000).
\15\ Testimony of Michael J. Walsh, House Committee on Government
Reform, Subcommittee on Government Management, Information, and
Technology, hearing on ``Federal Worker's Compensation Program: Are
Injured Federal Workers Being Treated Fairly?'' (Sept. 21, 2000).
\16\ Testimony of C.B. Weiser, supra n. 11.
\17\ Id.
---------------------------------------------------------------------------
Based upon the testimony at the hearing, it appears that no
system is in place to screen the appellants' files to ensure
that they are complete before scheduling them for hearing. In
the event that the files are found incomplete or missing, they
are remanded back to the OWCP and required to have another
decision before they can be appealed before the ECAB. The
minority believes that the OWCP and the ECAB should ensure that
the necessary documentation is complete before docketing the
file. Injured Federal workers deserve a timely hearing, and we
believe that it is wrong to remand a case from the ECAB back to
the OWCP and request another decision due to a ministerial
matter.
Hon. Henry A. Waxman.
Hon. Jim Turner.
Hon. Tom Lantos.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. Carolyn B. Maloney.
Hon. Eleanor Holmes Norton.
Hon. Chaka Fattah.
Hon. Elijah E. Cummings.
Hon. Dennis J. Kucinich.
Hon. Rod R. Blagojevich.
Hon. Danny K. Davis.
Hon. John F. Tierney.
Hon. Harold E. Ford, Jr.
Hon. Janice D. Schakowsky.