[Senate Report 110-520]
[From the U.S. Government Publishing Office]
Calendar No. 1102
110th Congress Report
2d Session SENATE 110-520
_______________________________________________________________________
FEDERAL FIREFIGHTERS FAIRNESS ACT OF 2008
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
S. 1924
TO AMEND CHAPTER 81 OF TITLE 5, UNITED STATES CODE, TO CREATE A
PRESUMPTION THAT A DISABILITY OR DEATH OF A FEDERAL EMPLOYEE IN FIRE
PROTECTION ACTIVITIES CAUSED BY ANY OF CERTAIN DISEASES IS THE RESULT
OF THE PERFORMANCE OF SUCH EMPLOYEE'S DUTY
November 17 (legislative day, September 17), 2008.--Ordered to be
printed
-------
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2008
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Eric P. Andersen, Professional Staff Member
John Kilvington, Staff Director, Subcommittee on Federal Financial
Management, Government Information, Federal Services, and International
Security
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Andrew E. Weis, Minority General Counsel
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
----------
Page
I. Purpose and Summary........................................ 1
II. Background and Need for the Legislation.................... 1
III. Legislative History........................................ 5
IV. Section-by-Section Analysis................................ 5
V. Evaluation of Regulatory Impact............................ 6
VI. Congressional Budget Office Cost Estimate.................. 6
VII. Changes in Existing Law Made by the Bill, as Reported...... 8
Calendar No. 1102
110th Congress Report
2d Session SENATE 110-520
---------------------------------------------------------------------
FEDERAL FIREFIGHTERS FAIRNESS ACT OF 2008
November 17 (legislative day, September 17), 2008.--Ordered to
be printed
Mr. Lieberman, from the Committee on Homeland Security and
Governmental Affairs, submitted the following
REPORT
[To accompany S. 1924]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 1924) to amend
chapter 81 of title 5, United States Code, to create a
presumption that a disability or death of a Federal employee in
fire protection activities caused by any of certain diseases is
the result of the performance of such employee's duty, having
considered the same, reports favorably thereon with an
amendment, and recommends that the bill, as amended, do pass.
I. Purpose and Summary
S. 1924 creates a rebuttable presumption that a disability
or death of a Federal employee in fire protection activities
caused by certain diseases is the result of the performance of
such employee's duty and is therefore compensable under worker
compensation law.
II. Background and Need for the Legislation
Numerous studies have shown that firefighters--due to their
daily exposure to stress, smoke, heat and various toxic
substances--are far more likely than other workers to contract
certain illnesses such heart disease, lung disease, and certain
cancers. In addition, the role firefighters play in providing
emergency medical services often exposes them to a number of
infectious diseases. Heart disease, lung disease, cancer, and
infectious disease are now among the leading causes of death
and disability for firefighters. The following are examples of
the many studies that have established linkages between
fighting fires and such diseases and conditions:
1. A 2008 study of male Massachusetts firefighters from
1987 to 2003 found increased risk for numerous cancers,
including colon and brain cancer.\1\
---------------------------------------------------------------------------
\1\ Dongmug Kang, M.D., Ph.D., et al. "Cancer Incidence Among Male
Massachusetts Firefighters, 1987-2003." American Journal of Industrial
Medicine. 2008; 51:329-335.
---------------------------------------------------------------------------
2. A 2006 study conducted by the University of Cincinnati
found that on-the-job exposure to soot and toxins creates an
increased risk for various cancers among firefighters.\2\
---------------------------------------------------------------------------
\2\ Grace K. LeMasters, Ph.D., et al. "Cancer Risk Among
Firefighters: A Review and Meta-analysis of 32 Studies." Journal of
Occupational and Environmental Medicine. 2006; 48(11):1189-1202.
---------------------------------------------------------------------------
3. A 2007 Harvard study published in the New England
Journal of Medicine found that firefighters face a risk of
death from heart attacks up to 100 times higher when involved
in fire suppression as compared to non-emergency duties.\3\
---------------------------------------------------------------------------
\3\ Stefanos N. Kales, M.D., M.P.H., et al. "Emergency Duties and
Deaths from Heart Disease among Firefighters in the United States." The
New England Journal of Medicine. 2007; 356(12):1207-1215.
---------------------------------------------------------------------------
4. A federal government study conducted during the
development of an Occupational Safety and Health Administration
Bloodborne Pathogen Standard showed that 98% of Emergency
Medical Technicians and 80% of firefighters are exposed to
bloodborne infectious diseases on the job.\4\
---------------------------------------------------------------------------
\4\ 29 CFR 1910.1030 Occupational Safety and Health Administration
Regulatory Impact and Flexibility Analysis.
---------------------------------------------------------------------------
Forty states have enacted "presumptive disability" laws
which presume that cardiovascular diseases and certain cancers
and infectious diseases contracted by firefighters are job-
related for purposes of worker's compensation and disability
retirement unless proven otherwise (see Figure 1). However, no
such law covers firefighters employed by the federal
government. There are approximately 15,000 federal
firefighters, the majority of whom are employed by the
Department of Defense.
According to the International Association of Fire Fighters
(IAFF), Federal firefighters who have contracted cancers and
infectious diseases have experienced difficulty in receiving
compensation under the Federal Employee Compensation Act (FECA)
(5 U.S.C. '81) because of the difficulty of linking the disease
to precise incidents or exposures.Because their work
environment involves routine exposure to hazardous
substances,\5\ each incident--or the repeated exposure from
many incidents over time--could potentially cause a disease or
condition. This legislation would establish the presumption
that the listed diseases and conditions are consistent with the
work environment of firefighting. Therefore, in filing a claim
associated with any of these diseases or conditions, an
employee would no longer be required to establish a connection
to a specific incident or incidents.
---------------------------------------------------------------------------
\5\ See Kang et al: ``Firefighters are known to be exposed to
recognized or probable carcinogens. These include benzene, polycyclic
aromatic hydrocarbons, benzo(a)pyrene, formaldehyde, chlorophenols,
dioxins, ethylene exide, orthotoluidine...'' (329).
III. Legislative History
S. 1924 was introduced by Senators Carper and Warner on
August 1, 2007, and referred to the Senate Committee on
Homeland Security and Governmental Affairs. Senator Menendez
was also an original co-sponsor. On August 22, 2007, the bill
was referred to Subcommittee on Oversight of Government
Management, the Federal Workforce, and the District of
Columbia. It was reported to the full Committee on June 24,
2008, and on June 25, 2008 the full Committee, by voice vote,
ordered it reported favorably to the Senate floor with an
amendment in the nature of a substitute offered by Senators
Carper and Warner.
The substitute amendment reduces the list of diseases that
would be covered by the presumption. It establishes a five-year
service requirement with respect to heart disease, lung
disease, and the listed cancers (no minimum service requirement
would exist for the listed infectious diseases). It requires
that the National Institute for Occupational Safety and Health
conduct a study of the effect of the Act and the current
research on the health risks related to firefighting. It also
gives the Secretary of Labor the authority to establish a
presumption for additional diseases if he or she determines
that they are related to the hazards firefighters face on the
job.
S. 1924 was ordered to be reported favorably by voice vote
as amended. Senator Coburn asked to be recorded as "Nay."
Senators present were Senators Lieberman, Levin, Akaka, Carper,
Pryor, McCaskill, Tester, Collins, Stevens, Voinovich, Coleman,
Coburn, Warner, and Sununu.
Similar bills were introduced in the House of
Representatives by Rep. Jo Ann Davis H.R. 103) on January 5,
2007, and by Rep. Lois Capps (H.R. 1142) on February 17, 2007.
IV. Section-by-Section Analysis
Section 1. Short title
Section 1 designates the name of the act as the "Federal
Firefighters Fairness Act of 2008."
Section 2. Certain diseases/presumed to be work-related clause of
disability or death for federal employees in fire protection
activities
Subsection (a) defines the class of employees to whom the
bill would apply. The presumption created by the bill would
only apply to individuals who are trained in fire suppression,
authorized to engage in fire suppression, and engage in fire
suppression and other emergency response activities as a
primary responsibility of their job.
Subsection (b) lists 20 infectious and non-infectious
diseases for which the presumption would apply for employees
covered by the bill. The Secretary of Labor would be permitted
to add additional diseases to the list if he or she determines
that they are related to the hazards firefighters face on the
job. The presumption for non-infectious diseases would only
apply to employees who have been employed by the Federal
government for five years or more. The presumption for
infectious diseases would apply to all covered employees. The
presumption would be rebuttable by a preponderance of the
evidence.
Subsection (c) requires the National Institute of
Occupational Safety and Health in the Centers for Disease
Control and Prevention to report to Congress, no later than 10
years after enactment, on the claims filed under the
presumption created in the bill and on the available research
related to the health risks associated with firefighting. The
report will also include any recommendations on any
administrative or legislative actions necessary to ensure that
those diseases most closely associated with firefighting are
included in the presumption created in the bill.
Subsection (d) states that the presumption included in the
bill only applies to injuries diagnosed and deaths occurring
after the date of enactment.
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill. The
Congressional Budget Office states that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandate Reform Act and would not affect state, local,
and tribal governments. The enactment of this legislation will
not have significant regulatory impact.
VI. Congressional Budget Office ost Estimate
U.S. Congress
Congressional Budget Office,
Washington, DC, September 2, 2008.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1924, the Federal
Firefighters Fairness Act of 2008.t.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Anthony.
Sincerely,
Peter H. Fontaine
(For Peter R. Orszag, Director).
Enclosure.
S. 1924--Federal Firefighters Fairness Act of 2008
Summary: S. 1924 would expand eligibility for federal
firefighters with certain diseases and conditions to receive
medical, wage replacement, and death benefits under the Federal
Employees' Compensation Act (FECA).
CBO estimates that, on net, enacting S. 1924 would increase
direct spending for benefits for firefighters by $2 million in
2009 and $26 million over the 2009-2018 period. Enacting the
bill would not affect revenues.
Because employing agencies ultimately bear the cost of
federal workers' compensation claims, CBO estimates that
discretionary costs for salaries and expenses would rise along
with the FECA claims. Assuming appropriation of the necessary
amounts, CBO estimates that spending subject to appropriation
would increase by $25 million over the 2009-2018 period.
S. 1924 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 1924 is shown in the following table.
The costs of this legislation fall within budget function 600
(income security).
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------------------------------------------------
2009- 2009-
2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2013 2018
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Estimated Budget Authority.............................. 2 2 2 3 3 3 3 3 3 3 12 26
Estimated Outlays....................................... 2 2 2 3 3 3 3 3 3 3 12 26
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................... 1 2 3 3 3 3 3 3 3 3 11 27
Estimated Outlays....................................... 1 2 2 3 3 3 3 3 3 3 10 25
Memorandum:
Intragovernmental Collections from Agencies to Pay for -1 -2 -2 -3 -3 -3 -3 -3 -3 -3 -10 -25
FECA Costs.............................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: Components may not sum to totals because of rounding.
FECA = Federal Employees' Compensation Act.
Basis of estimate: For purposes of this estimate, CBO
assumes that S. 1924 will be enacted near the start of fiscal
year 2009.
Direct spending
S. 1924 would make federal firefighters who contract
certain diseases presumptively eligible for benefits under
FECA. The specified diseases include heart disease, lung
disease, certain cancers, tuberculosis, hepatitis A, B, or C,
and human immunodeficiency disease. Affected federal
firefighters would be eligible for federal workers'
compensation benefits, including medical expenses, disability
payments, and death payments to survivors. Based on the
incidence, disability, and death rates for the specified
diseases, CBO estimates that between 200 and 300 people per
year, on average, would qualify for benefits. CBO estimates
that providing FECA benefits for eligible firefighters would
increase direct spending by $28 million over the 2009-2018
period.
Costs under FECA would be partially offset by small savings
in federal disability and Federal Employees Health Benefits
payments. For those claimants who would have been able to
qualify for federal disability payments under current law,
those disability payments would be replaced by FECA payments.
In addition, the federal government's share of health care
premiums for retirees would decline slightly as costs for
covered medical conditions would be paid by FECA. After
accounting for those offsets ($2 million over the 10-year
period), CBO estimates that, on net, enacting S. 1924 would
increase mandatory spending by $26 million over the 2009-2018
period.
Spending subject to appropriation
Because FECA costs ultimately are charged back to the
claimant's employing agency, the costs are borne by those
agencies' salaries and expense accounts. Therefore, CBO
estimates that enacting S. 1924 would increase discretionary
costs for salaries and expenses governmentwide by a total of
$25 million over the 2009-2018 period, assuming appropriation
of the estimated amounts. Those reimbursements would be
transferred to and credited to the FECA account, as shown in
the memorandum line in the table above.
Intergovernmental and private-sector impact: S. 1924
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal Costs: Christina Hawley
Anthony; Impact on State, Local, and Tribal Governments: Lisa
Ramirez-Branum; Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Keith J. Fontenot, Deputy Assistant
Director for Health and Human Resources, Budget Analysis
Division
VII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1924 as reported are shown as follows (existing law proposed
to be omitted is enclosed in brackets, new matter is printed in
italic, and existing law in which no change is proposed is
shown in roman):
TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III. EMPLOYEES
Subpart G. Insurance and Annuities
CHAPTER 81. COMPENSATION FOR WORK INJURIES
Subchapter I. Generally
Sec. 8101. Definitions
For the purpose of this subchapter--
* * * * * * *
(19) ``organ'' means a part of the body that performs
a special function, and for purposes of this subchapter
excludes the brain, heart, and back; [and]
(20) ``United States medical officers and hospitals''
includes medical officers and hospitals of the Army,
Navy, Air Force, Department of Veterans Affairs, and
United States Public Health Service, and any other
medical officer or hospital designated as a United
States medical officer or hospital by the Secretary of
Labor[.]; and
(21) ``Employee in fire protection activities'' means
a firefighter, paramedic, emergency medical technician,
rescue worker, ambulance personnel, or hazardous
material worker, who--
(A) is trained in fire suppression;
(B) has the legal authority and
responsibility to engage in fire suppression;
(C) is engaged in the prevention, control,
and extinguishment of fires or response to
emergency situations where life, property, or
the environment is at risk; and
(D) performs such activities as a primary
responsibility of his or her job.
Sec. 8102. Compensation for disability or death of employee
* * * * * * *
(c)(1) With regard to an employee in fire protection
activities, a disease specified in paragraph (2) shall be
presumed to be proximately caused by the employment of such
employee, subject to the length of service requirements
specified. The disability or death of an employee in fire
protection activities due to such a disease shall be presumed
to result from personal injury sustained while in the
performance of such employee's duty. Such presumptions may be
rebutted by a preponderance of the evidence.
(2) The following diseases shall be presumed to be
proximately caused by the employment of the employee:
(A) If the employee has been employed for a minimum
of 5 years:
(i) Heart disease.
(ii) Lung disease.
(iii) The following cancers:
(I) Brain cancer.
(II) Cancer of the blood or lymphatic
systems.
(III) Leukemia.
(IV) Lymphoma (except Hodgkin's
disease).
(V) Multiple myeloma.
(VI) Bladder cancer.
(VII) Kidney cancer.
(VIII) Testicular cancer.
(IX) Cancer of the digestive system.
(X) Colon cancer.
(XI) Liver cancer.
(XII) Skin cancer.
(XIII) Lung cancer.
(iv) Any other cancer the contraction of
which the Secretary of Labor determines to be
related to the hazards to which an employee in
fire protection activities may be subject.
(B) Regardless of the length of time an employee has
been employed:
(i) The following infectious diseases:
(I) Tuberculosis.
(II) Hepatitis A, B, or C.
(III) Human. immunodeficiency virus
(HIV).
(ii) Any uncommon infectious disease the
contraction of which the Secretary of Labor
determines to be related to the hazards to
which an employee in fire protection activities
may be subject.''.