[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.''.

                                  
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