[House Report 117-589]
[From the U.S. Government Publishing Office]
117th Congress } { Rept. 117-589
HOUSE OF REPRESENTATIVES
2d Session } { Part 1
======================================================================
BLACK LUNG BENEFITS IMPROVEMENT ACT OF 2022
_______
December 2, 2022.--Ordered to be printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 6102]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 6102) to ensure that claims for benefits under
the Black Lung Benefits Act are processed in a fair and timely
manner, to better protect miners from pneumoconiosis (commonly
known as ``black lung disease''), and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 12
Committee Consideration.......................................... 13
Committee Views.................................................. 17
Section-by-Section Analysis...................................... 48
Explanation of Amendments........................................ 52
Application of Law to the Legislative Branch..................... 52
Unfunded Mandate Statement....................................... 53
Earmark Statement................................................ 53
Roll Call Votes.................................................. 53
Statement of Performance Goals and Objectives.................... 55
Duplication of Federal Programs.................................. 55
Hearings......................................................... 55
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 55
New Budget Authority and CBO Cost Estimate....................... 55
Committee Cost Estimate.......................................... 59
Changes in Existing Law Made by the Bill, as Reported............ 59
Minority Views................................................... 141
The amendment is as follows:
Strike all after the enactment clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Black Lung Benefits Improvement Act of
2022''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--BLACK LUNG BENEFITS
Part A--Improving the Process for Filing and Adjudicating Claims for
Benefits
Sec. 101. Providing assistance with claims for miners and their
dependent family members.
Sec. 102. Clarifying eligibility for black lung benefits.
Sec. 103. Development of medical evidence by the Secretary.
Sec. 104. False statements or misrepresentations, attorney
disqualification, and discovery sanctions.
Sec. 105. Readjudicating cases involving certain chest radiographs.
Sec. 106. Attorneys' fees and medical expenses payment program.
Sec. 107. Restoring adequate benefit adjustments for miners suffering
from black lung disease and for their dependent family members.
Sec. 108. Disclosure of employment and earnings information for Black
Lung benefits claims.
Part B--Reports to Improve the Administration of Benefits Under the
Black Lung Benefits Act
Sec. 121. Strategy to reduce delays in adjudication.
Part C--Improvement in the Financial Security of the Black Lung
Benefits Disability Trust Fund
Sec. 131. Policies for securing the payment of benefits.
TITLE II--ESTABLISHING THE OFFICE OF WORKERS' COMPENSATION PROGRAMS
Sec. 201. Office of Workers' Compensation Programs.
TITLE III--ADDITIONAL PROVISIONS
Sec. 301. Technical and conforming amendments.
Sec. 302. Severability.
TITLE I--BLACK LUNG BENEFITS
PART A--IMPROVING THE PROCESS FOR FILING AND ADJUDICATING CLAIMS FOR
BENEFITS
SEC. 101. PROVIDING ASSISTANCE WITH CLAIMS FOR MINERS AND THEIR
DEPENDENT FAMILY MEMBERS.
Section 427(a) of the Black Lung Benefits Act (30 U.S.C. 937(a)) is
amended by striking ``the analysis, examination, and treatment'' and
all that follows through ``coal miners.'' and inserting ``the analysis,
examination, and treatment of respiratory and pulmonary impairments in
active and inactive coal miners and for assistance on behalf of miners,
spouses, dependents, and other family members with claims arising under
this title.''.
SEC. 102. CLARIFYING ELIGIBILITY FOR BLACK LUNG BENEFITS.
Section 411(c) of the Black Lung Benefits Act (30 U.S.C. 921(c)) is
amended by striking paragraph (3) and inserting the following:
``(3)(A) If x-ray, CT scan, biopsy, autopsy, or other
medically accepted and relevant test or procedure establishes
that a miner is suffering or has suffered from a chronic dust
disease of the lung, diagnosed as complicated pneumoconiosis or
progressive massive fibrosis (as determined in accordance with
subparagraph (B)), then there shall be an irrebuttable
presumption that such miner is totally disabled due to
pneumoconiosis, that the miner's death was due to
pneumoconiosis, or that at the time of death the miner was
totally disabled by pneumoconiosis, as the case may be.
``(B) For purposes of subparagraph (A), complicated
pneumoconiosis or progressive massive fibrosis can be
established by any of the following:
``(i) A chest radiograph, which yields one or more
large opacities whose greatest diameter exceeds 1
centimeter and would be classified in Category A, B, or
C in the International Classification of Radiographs of
Pneumoconiosis by the International Labor Organization,
in the absence of more probative evidence sufficient to
establish that the etiology of the large opacity is not
pneumoconiosis.
``(ii) A chest CT scan, which yields one or more
large opacities whose greatest diameter exceeds 1
centimeter, in the absence of more probative evidence
sufficient to establish that the etiology of the large
opacity is not pneumoconiosis.
``(iii) A lung biopsy or autopsy, which would yield a
lesion at least 1 centimeter in its long axis diameter
if measured at the time of gross dissection.
``(iv) A diagnosis by other means that would
reasonably be expected to yield results described in
clause (i), (ii), or (iii).''.
SEC. 103. DEVELOPMENT OF MEDICAL EVIDENCE BY THE SECRETARY.
Part C of the Black Lung Benefits Act (30 U.S.C. 931 et seq.) is
amended by adding at the end the following:
``SEC. 435. DEVELOPMENT OF MEDICAL EVIDENCE BY THE SECRETARY.
``(a) Complete Pulmonary Evaluation.--Upon request by a claimant for
benefits under this title, the Secretary shall provide the claimant an
opportunity to substantiate the claim through a complete pulmonary
evaluation of the miner that shall include--
``(1) an initial report, conducted by a qualified physician
on the list provided under subsection (e), and in accordance
with subsection (d)(5) and sections 402(f)(1)(D) and 413(b);
and
``(2) if the conditions under subsection (b) are met, any
supplemental medical evidence described in subsection (c).
``(b) Authorizing Chest Scans.--In diagnosing whether there is
complicated pneumoconiosis as a part of a medical examination conducted
under subsection (a), the Secretary shall authorize a high-quality,
low-dose or standard computerized tomography scan where any or a
combination of the following is found:
``(1) Any certified B reader of a chest radiograph associated
with an exam conducted under section 413(b) finds
pneumoconiosis (ILO category 2/1 or greater).
``(2) Any certified B reader of a chest radiograph associated
with an exam conducted under section 413(b) finds a coalescence
of small opacities.
``(c) Conditions for Supplemental Medical Evidence.--The Secretary
shall develop supplemental medical evidence, in accordance with
subsection (d)--
``(1) for any claim in which the Secretary recommends an
award of benefits based on the results of the initial report
under subsection (a)(1) and a party opposing such award submits
evidence that could be considered contrary to the findings of
the Secretary; and
``(2) for any compensation case under this title heard by an
administrative law judge, in which--
``(A) the Secretary has awarded benefits to the
claimant;
``(B) the party opposing such award has submitted
evidence not previously reviewed that could be
considered contrary to the award under subparagraph
(A); and
``(C) the claimant or, if the claimant is represented
by an attorney, the claimant's attorney consents to the
Secretary developing supplemental medical evidence.
``(d) Process for Supplemental Medical Evidence.--
``(1) In general.--Except as provided under paragraph (2), to
develop supplemental medical evidence under conditions
described in subsection (c), the Secretary shall request the
physician who conducted the initial report under subsection
(a)(1) to--
``(A) review any medical evidence submitted after
such report or the most recent supplemental report, as
appropriate; and
``(B) update his or her opinion in a supplemental
report.
``(2) Alternative physician.--If such physician is no longer
available or is unwilling to provide supplemental medical
evidence under paragraph (1), the Secretary shall select
another qualified physician from the list provided pursuant to
subsection (e) to provide such evidence.
``(e) Qualified Physicians for Complete Pulmonary Evaluation and
Protections for Suitability and Potential Conflicts of Interest.--
``(1) Qualified physicians list.--The Secretary shall create
and maintain a list of qualified physicians to be selected by a
claimant to perform the complete pulmonary evaluation described
in subsection (a).
``(2) Public availability.--The Secretary shall make the list
under this subsection available to the public.
``(3) Annual evaluation.--Each year, the Secretary shall
update such list by reviewing the suitability of the listed
qualified physicians and assessing any potential conflicts of
interest.
``(4) Criteria for suitability.--The Secretary shall include
on the list only those physicians whom the Secretary determines
are qualified, capable, and willing to provide credible
opinions consistent with the premises underlying this Act. In
determining whether a physician is suitable to be on the list
under this subsection, the Secretary shall consult the National
Practitioner Data Bank of the Department of Health and Human
Services and assess reports of adverse licensure,
certifications, hospital privilege, and professional society
actions involving the physician. In no case shall such list
include any physician--
``(A) who is not licensed to practice medicine in any
State or any territory, commonwealth, or possession of
the United States;
``(B) whose license is revoked by a medical licensing
board of any State, territory, commonwealth, or
possession of the United States; or
``(C) whose license is suspended by a medical
licensing board of any State, territory, commonwealth,
or possession of the United States.
``(5) Conflicts of interest.--The Secretary shall develop and
implement policies and procedures to ensure that any actual or
potential conflict of interest of qualified physicians on the
list under this subsection, including both individual and
organizational conflicts of interest, are disclosed to the
Department, and to provide such disclosure to claimants. Such
policies and procedures shall provide that a physician with a
conflict of interest shall not be used to perform a complete
pulmonary medical evaluation under subsection (a) that is
reimbursed pursuant to subsection (g) if--
``(A) such physician is employed by, under contract
to, or otherwise providing services to a private party
opposing the claim, a law firm or lawyer representing
such opposing party, or an interested insurer or other
interested third party; or
``(B) such physician has been retained by a private
party opposing the claim, a law firm or lawyer
representing such opposing party, or an interested
insurer or other interested third party in the previous
24 months.
``(f) Record.--Upon receipt of any initial report or supplemental
report under this section, the Secretary shall enter the report in the
record and provide a copy of such report to all parties to the
proceeding.
``(g) Expenses.--All expenses related to obtaining the medical
evidence under this section shall be paid for by the fund. If a
claimant receives a final award of benefits, the operator liable for
payment of benefits, if any, shall reimburse the fund for such
expenses, which shall include interest.''.
SEC. 104. FALSE STATEMENTS OR MISREPRESENTATIONS, ATTORNEY
DISQUALIFICATION, AND DISCOVERY SANCTIONS.
Section 431 of the Black Lung Benefits Act (30 U.S.C. 941) is amended
to read as follows:
``SEC. 431. FALSE STATEMENTS OR MISREPRESENTATIONS, ATTORNEY
DISQUALIFICATION, AND DISCOVERY SANCTIONS.
``(a) In General.--No person, including any claimant, physician,
operator, duly authorized agent of such operator, or employee of an
insurance carrier, shall--
``(1) knowingly and willfully make a false statement or
misrepresentation for the purpose of obtaining, increasing,
reducing, denying, or terminating benefits under this title; or
``(2) knowingly and willfully threaten, coerce, intimidate,
deceive, or mislead a party, representative, witness, potential
witness, judge, or anyone participating in a proceeding
regarding any matter related to a proceeding under this title.
``(b) Fine; Imprisonment.--Any person who engages in the conduct
described in subsection (a) shall, upon conviction, be subject to a
fine in accordance with title 18, United States Code, imprisoned for
not more than 5 years, or both.
``(c) Prompt Investigation.--The United States Attorney for the
district in which the conduct described in subsection (a) is alleged to
have occurred shall make every reasonable effort to promptly
investigate each complaint of a violation of such subsection.
``(d) Disqualification.--
``(1) In general.--An attorney or expert witness who engages
in the conduct described in subsection (a) shall, in addition
to the fine or imprisonment provided under subsection (b), be
permanently disqualified from representing any party, or
appearing in any proceeding, under this title.
``(2) Attorney disqualification.--In addition to the
disqualification described in paragraph (1), the Secretary may
disqualify an attorney from representing any party in any
administrative proceeding under this title for either a limited
term or permanently, if the attorney--
``(A) engages in any action or behavior that is
prejudicial to the fair and orderly conduct of such
proceeding; or
``(B) is suspended or disbarred by any court of the
United States, any State, or any territory,
commonwealth, or possession of the United States with
jurisdiction over the proceeding.
``(e) Discovery Sanctions.--An administrative law judge may sanction
a party who fails to comply with an order to compel discovery or
disclosure, or to supplement earlier responses, in a proceeding under
this title. These sanctions may include, as appropriate--
``(1) drawing an adverse inference against the noncomplying
party on the facts relevant to the discovery or disclosure
order;
``(2) limiting the noncomplying party's claims, defenses, or
right to introduce evidence; and
``(3) rendering a default decision against the noncomplying
party.
``(f) Regulations.--The Secretary shall promulgate a proposed rule
not later than 180 days after the date of enactment of this Act and a
final rule not later than 18 months after such date of enactment that--
``(1) provides procedures for the disqualifications and
sanctions under this section and is appropriate for all
parties; and
``(2) distinguishes between parties that are represented by
an attorney and parties that are not represented by an
attorney.''.
SEC. 105. READJUDICATING CASES INVOLVING CERTAIN CHEST RADIOGRAPHS.
Part C of the Black Lung Benefits Act (30 U.S.C. 931 et seq.), as
amended by section 103, is further amended by adding at the end the
following:
``SEC. 436. READJUDICATING CASES INVOLVING DISCREDITED EXPERT OPINIONS.
``(a) Definitions.--In this section:
``(1) Covered chest radiograph.--The term `covered chest
radiograph' means a chest radiograph that was interpreted as
negative for simple pneumoconiosis, complicated pneumoconiosis,
or progressive massive fibrosis by a physician with respect to
whom the Secretary has directed, in writing and after an
evaluation by the Secretary, that such physician's negative
interpretations of chest radiographs not be credited, except
where subsequently determined to be credible by the Secretary
in evaluating a claim for benefits under this Act.
``(2) Covered individual.--The term `covered individual'
means an individual whose record for a claim for benefits under
this Act includes a covered chest radiograph.
``(3) Covered survivor.--The term `covered survivor' means an
individual who--
``(A) is a survivor of a covered individual whose
claim under this Act was still pending at the time of
the covered individual's death; and
``(B) who continued to seek an award with respect to
the covered individual's claim after the covered
individual's death.
``(b) Claims.--A covered individual or a covered survivor whose claim
for benefits under this Act was denied may file a new claim for
benefits under this Act.
``(c) Adjudication on the Merits.--
``(1) In general.--Any new claim filed under subsection (b)
shall be adjudicated on the merits and shall not include
consideration of a covered chest radiograph.
``(2) Covered survivor.--Any new claim filed under subsection
(b) by a covered survivor shall be adjudicated as either a
miner's or a survivor's claim depending upon the type of claim
pending at the time of the covered individual's death.
``(d) Time of Payment.--
``(1) Miner's claim.--If a claim, filed under subsection (b)
and adjudicated under subsection (c) as a miner's claim,
results in an award of benefits, benefits shall be payable
beginning with the month of the filing of the denied claim that
had included in its record a covered chest radiograph.
``(2) Survivor's claim.--If a claim, filed under subsection
(b) and adjudicated under subsection (c) as a survivor's claim,
results in an award of benefits, benefits shall be payable
beginning with the month of the miner's death.
``(e) Contributing Impact.--The Secretary shall have the discretion
to deny a new claim under subsection (b) in circumstances where the
party opposing such claim establishes through clear and convincing
evidence that a covered chest radiograph did not contribute to the
decision to deny benefits in all prior claims filed by the covered
individual or the covered survivor.
``(f) Limitation on Filing of New Claims.--A new claim for benefits
may be filed under subsection (b) only if the original claim was
finally denied by a district director, an administrative law judge, or
the Benefits Review Board established under section 21(b) of the
Longshore and Harbor Workers' Compensation Act (33 U.S.C. 921(b)).''.
SEC. 106. ATTORNEYS' FEES AND MEDICAL EXPENSES PAYMENT PROGRAM.
Part A of the Black Lung Benefits Act (30 U.S.C. 901 et seq.) is
amended by adding at the end the following:
``SEC. 403. ATTORNEYS' FEES AND MEDICAL EXPENSES PAYMENT PROGRAM.
``(a) Program Established.--
``(1) In general.--Not later than 180 days after the date of
enactment of the Black Lung Benefits Improvement Act of 2022,
the Secretary shall establish a payment program to pay
attorneys' fees and other reasonable and unreimbursed medical
expenses incurred in establishing the claimant's case, using
amounts from the fund, to the attorneys of claimants in
qualifying claims.
``(2) Qualifying claim.--A qualifying claim for purposes of
this section is a contested claim for benefits under this title
for which a final order has not been entered within two years
of the filing of the claim.
``(3) Use of payments from the fund.--Notwithstanding any
other provision of law, amounts in the fund shall be available
for payments authorized by the Secretary under this section.
``(b) Payments Authorized.--
``(1) Attorneys' fees.--If a claimant for benefits under this
title obtains a proposed decision and order from a district
director with an award of benefits for a qualifying claim, or
an award for a qualifying claim before an administrative law
judge, the district director may approve attorneys' fees for
work done before such director in an amount not to exceed
$1,500 and an administrative law judge may approve attorneys'
fees for work done before such judge in an amount not to exceed
$3,000. The Secretary shall, through the program under this
section, pay such amounts approved.
``(2) Medical expenses.--If a claimant for benefits under
this title obtains a proposed decision and order from a
district director with an award of benefits for a qualifying
claim, or an award for a qualifying claim before an
administrative law judge, such district director and
administrative law judge may each approve an award to the
claimant's attorney of reasonable and unreimbursed medical
expenses incurred in establishing the claimant's case in an
amount not to exceed $1,500. The Secretary shall, through the
program under this section, pay such amounts approved.
``(3) Maximum.--The program established under this section
shall not pay more than a total of $4,500 in attorneys' fees
nor more than $3,000 in medical expenses for any single
qualifying claim.
``(c) Reimbursement of Funds.--In any case in which a qualifying
claim results in a final order awarding compensation, the liable
operator shall reimburse the fund for any fees or expenses paid under
this section, subject to enforcement by the Secretary under section 424
and in the same manner as compensation orders are enforced under
section 21(d) of the Longshore and Harbor Workers' Compensation Act (33
U.S.C. 921(d)).
``(d) Additional Program Rules.--Nothing in this section shall limit
or otherwise affect an operator's liability for any attorneys' fees,
medical expenses, or other allowable and unreimbursed expenses awarded
by the district director or an administrative law judge that were not
paid by the program under this section. Nothing in this section shall
limit or otherwise affect the Secretary's authority to use amounts in
the fund to pay approved attorneys' fees and other allowable and
unreimbursed expenses in claims for benefits under this title for which
a final order awarding compensation has been entered and the operator
is unable or refuses to pay.
``(e) No Recoupment.--Any payment for attorneys' fees or medical
expenses made by the Secretary under this section shall not be recouped
from the claimant or the claimant's attorney.''.
SEC. 107. RESTORING ADEQUATE BENEFIT ADJUSTMENTS FOR MINERS SUFFERING
FROM BLACK LUNG DISEASE AND FOR THEIR DEPENDENT
FAMILY MEMBERS.
Section 412(a) of the Black Lung Benefits Act (30 U.S.C. 922(a)) is
amended by striking paragraph (1) and inserting the following:
``(1) In the case of total disability of a miner due to
pneumoconiosis, the disabled miner shall be paid benefits during the
disability--
``(A) for any calendar year preceding January 1, 2022, at a
rate equal to 37\1/2\ percent of the monthly pay rate for
Federal employees in grade GS-2, step 1;
``(B) for the calendar year beginning on January 1, 2022, at
a rate of $8,834.01 per year, payable in 12 equal monthly
payments; and
``(C) for each calendar year thereafter, at a rate equal to
the product of the rate in effect under this paragraph for the
calendar year immediately preceding such calendar year
multiplied by the ratio (not less than 1) of--
``(i) the Consumer Price Index for Urban Wage Earners
and Clerical Workers (CPI-W, as published by the Bureau
of Labor Statistics of the Department of Labor) for the
calendar year immediately preceding such calendar year,
to
``(ii) the CPI-W for the second calendar year
preceding such calendar year.''.
SEC. 108. DISCLOSURE OF EMPLOYMENT AND EARNINGS INFORMATION FOR BLACK
LUNG BENEFITS CLAIMS.
(a) Tax Return Information.--
(1) In general.--Section 6103(l) of the Internal Revenue Code
of 1986 is amended by adding at the end the following new
paragraph:
``(23) Disclosure of return information to department of
labor to carry out black lung benefits act.--
``(A) In general.--The Commissioner of Social
Security shall, on written request with respect to any
individual, disclose to officers or employees of the
Department of Labor return information from returns
with respect to net earnings from self-employment (as
defined in section 1402) and wages (as defined in
section 3121(a) or 3401(a)) for employment for each
employer of such individual.
``(B) Restriction on disclosure.--The Commissioner of
Social Security shall disclose return information under
subparagraph (A) only for purposes of, and the extent
necessary in, carrying out the proper administration of
the Black Lung Benefits Act (30 U.S.C. 901 et seq.).''.
(2) Conforming amendments.--Section 6103(p)(4) of such Code
is amended--
(A) in the matter preceding subparagraph (A), by
striking ``or (22)'' and inserting ``(22), or (23)'';
and
(B) in subparagraph (F)(ii), by striking ``or (22),''
and inserting ``(22), or (23)''.
(b) Social Security Earnings Information.--Notwithstanding section
552a of title 5, United States Code, or any other provision of Federal
or State law, the Commissioner of Social Security shall make available
to the officers and employees of the Department of Labor, upon written
request, the Social Security earnings information of living or deceased
individuals who are the subject of a claim under the Black Lung
Benefits Act (30 U.S.C. 901 et seq.), which the Secretary of Labor may
require to carry out such Act. Such information shall be made available
in electronic form.
PART B--REPORTS TO IMPROVE THE ADMINISTRATION OF BENEFITS UNDER THE
BLACK LUNG BENEFITS ACT
SEC. 121. STRATEGY TO REDUCE DELAYS IN ADJUDICATION.
(a) In General.--Not later than 90 days after the date of enactment
of this Act, the Secretary of Labor shall submit to the Committee on
Health, Education, Labor, and Pensions and the Committee on
Appropriations of the Senate and the Committee on Education and Labor
and the Committee on Appropriations of the House of Representatives a
comprehensive strategy to reduce the backlog of cases pending on such
date of enactment before the Office of Administrative Law Judges of the
Department of Labor.
(b) Contents of Strategy.--The strategy under this section shall
provide information relating to--
(1) the current and targeted pendency for each category of
cases before the Office of Administrative Law Judges of the
Department of Labor;
(2) the number of administrative law judges, attorney
advisors supporting such judges, support staff, and other
resources necessary to achieve and maintain the targeted
pendency for each category of such cases;
(3) the necessary resources to improve efficiency and
effectiveness, such as equipment for video conferences,
training, use of reemployed annuitants, and administrative
reforms; and
(4) with respect to claims filed under the Black Lung
Benefits Act (30 U.S.C. 901 et seq.), the necessary resources
needed to reduce the average pendency of cases to less than 12
months from the date of receipt of the case to the date of
disposition of such case.
PART C--IMPROVEMENT IN THE FINANCIAL SECURITY OF THE BLACK LUNG
BENEFITS DISABILITY TRUST FUND
SEC. 131. POLICIES FOR SECURING THE PAYMENT OF BENEFITS.
(a) In General.--Not later than 60 days after the date of enactment
of this Act, the Secretary shall publish an interim final rule setting
forth the requirements for an operator of a coal mine to qualify as a
self-insurer with respect any portion of the operator's liabilities
under the Black Lung Benefits Act, as described in section 423(a)(1) of
such Act (30 U.S.C. 933(a)(1)). Such rule shall--
(1) establish criteria, relating to the financial health of
the operator (including creditworthiness, long-term enterprise
viability, and other liabilities), on which the eligibility of
the operator to seek and maintain qualification as a self-
insurer shall be determined;
(2) establish procedures to determine on an annual basis (or
more frequently, where deemed necessary by the Secretary) the
minimum amount of security sufficient to insure current and
projected liabilities; and
(3) establish procedures for review by the Secretary of
operator appeals of determinations described in paragraphs (1)
and (2).
The Secretary shall promulgate a final rule not later than 12 months
after the date of enactment of this Act.
(b) Penalties.--
(1) In general.--Section 423(d)(1) of the Black Lung Benefits
Act (30 U.S.C. 933(d)(1)) is amended--
(A) by striking ``$1,000'' and inserting ``$25,000'';
(B) by inserting ``chief executive officer, chief
operating officer,'' after the word ``president,'' each
place it appears;
(C) by striking ``and treasurer'' each place it
appears and inserting ``treasurer, and other
responsible party'';
(D) by striking ``for any benefit'' and all that
follows through ``this section.'' and inserting ``for--
``(A) any benefit which may accrue under this title in
respect to any disability which may occur to any employee of
such corporation while it shall so fail to secure the payment
of benefits as required by this section; or
``(B) in the event of bankruptcy or other permanent
abandonment of the obligation to secure the payment of
benefits, the actuarial present value of the benefits to be
paid by the fund under section 424(b)(1), projected as of the
date of failure to secure such benefits, less any security
recovered or surrendered, plus interest.''.
(2) Other responsible party defined.--Section 402 of the
Black Lung Benefits Act (30 U.S.C. 902) is amended by inserting
at the end the following:
``(j) The term `other responsible party' means--
``(1) an individual, partnership, joint venture, corporation,
mutual company, joint-stock company, trust, estate,
unincorporated organization, association, or other enterprise
that possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of an
operator or employer; or
``(2) any trade or business (whether or not incorporated)
which is under common control with an operator or employer.''.
TITLE II--ESTABLISHING THE OFFICE OF WORKERS' COMPENSATION PROGRAMS
SEC. 201. OFFICE OF WORKERS' COMPENSATION PROGRAMS.
(a) Establishment.--There shall be established, in the Department of
Labor, an Office of Workers' Compensation Programs (referred to in this
section as the ``Office'').
(b) Director.--
(1) In general.--The Office shall be directed by a Director
for the Office of Workers' Compensation (referred to in this
section as the ``Director'') who shall be appointed by the
President, by and with the advice and consent of the Senate.
(2) Duties.--The Director shall carry out all duties carried
out by the Director for the Office of Workers' Compensation as
of the day before the date of enactment of this Act.
(c) Functions.--The functions of the Office on and after the date of
enactment of this Act shall include the functions of the Office on the
day before the date of enactment of this Act, including all of its
personnel, assets, authorities, and liabilities.
(d) References to Bureau of Employees' Compensation.--Reference in
any other Federal law, Executive order, reorganization plan, rule,
regulation, or delegation of authority, or any document of or relating
to the Bureau of Employees' Compensation with regard to functions
carried out by the Office of Workers' Compensation Programs, shall be
deemed to refer to the Office of Workers' Compensation Programs.
TITLE III--ADDITIONAL PROVISIONS
SEC. 301. TECHNICAL AND CONFORMING AMENDMENTS.
The Black Lung Benefits Act (30 U.S.C. 901 et seq.) is amended--
(1) in section 401(a) (30 U.S.C. 901(a)), by inserting ``or
who were found to be totally disabled by such disease'' after
``such disease'';
(2) in section 402--
(A) in subsection (a), by striking paragraph (2) and
inserting the following:
``(2) a spouse who is a member of the same household as the
miner, or is receiving regular contributions from the miner for
support, or whose spouse is a miner who has been ordered by a
court to contribute to support, or who meets the requirements
of paragraph (1) or (2) of section 216(b) of the Social
Security Act or paragraph (1) or (2) of section 216(f) of such
Act. An individual is the `spouse' of a miner when such
individual is legally married to the miner under the laws of
the State where the marriage was celebrated. The term `spouse'
also includes a `divorced wife' or `divorced husband', as such
terms are defined in paragraph (1) or (4) of section 216(d) of
such Act, who is receiving at least one-half of his or her
support, as determined in accordance with regulations
prescribed by the Secretary, from the miner, or is receiving
substantial contributions from the miner (pursuant to a written
agreement), or there is in effect a court order for substantial
contributions to the spouse's support from such miner.'';
(B) by striking subsection (e) and inserting the
following:
``(e) The term `surviving spouse' includes the spouse living with or
dependent for support on the miner at the time of the miner's death, or
living apart for reasonable cause or because of the miner's desertion,
or who meets the requirements of subparagraph (A), (B), (C), (D), or
(E) of section 216(c)(1) of the Social Security Act, subparagraph (A),
(B), (C), (D), or (E) of section 216(g)(1) of such Act, or section
216(k) of such Act, who is not married. An individual is the `surviving
spouse' of a miner when legally married at the time of the miner's
death under the laws of the State where the marriage was celebrated.
Such term also includes a `surviving divorced wife' or `surviving
divorced husband', as such terms are defined in paragraph (2) or (5) of
section 216(d) of such Act who for the month preceding the month in
which the miner died, was receiving at least one-half of his or her
support, as determined in accordance with regulations prescribed by the
Secretary, from the miner, or was receiving substantial contributions
from the miner (pursuant to a written agreement) or there was in effect
a court order for substantial contributions to the spouse's support
from the miner at the time of the miner's death.'';
(C) in subsection (g)--
(i) in paragraph (2)(B)(ii), by striking ``he
ceased'' and inserting ``the individual
ceased''; and
(ii) in the matter following paragraph
(2)(C), by striking ``widow'' each place it
appears and inserting ``surviving spouse'';
(D) in subsection (h), by striking ``Internal Revenue
Code of 1954'' and inserting ``Internal Revenue Code of
1986''; and
(E) in subsection (i), by striking ``Internal Revenue
Code of 1954'' and inserting ``Internal Revenue Code of
1986'';
(3) in section 411 (30 U.S.C. 921)--
(A) by striking subsection (a) and inserting the
following: (a) The Secretary shall, in accordance with
the provisions of this title, and the regulations
promulgated by the Secretary under this title, make
payments of benefits in respect of--
``(1) total disability of any miner due to pneumoconiosis;
``(2) the death of any miner whose death was due to
pneumoconiosis;
``(3) total disability of any miner at the time of the
miner's death with respect to a claim filed under part C prior
to January 1, 1982;
``(4) survivors' benefits for any survivor's claim filed
after January 1, 2005, that is pending on or after March 23,
2010, where the miner is found entitled to receive benefits on
a claim filed under part C; and
``(5) survivors' benefits where the miner is found entitled
to receive benefits on a claim filed under part C before
January 1, 1982.''; and
(B) in subsection (c)--
(i) in paragraph (1), by striking ``his
pneumoconiosis'' and inserting ``the miner's
pneumoconiosis''; and
(ii) in paragraph (2), by striking ``his
death'' and inserting ``the miner's death'';
(4) in section 412 (30 U.S.C. 922)--
(A) in subsection (a)--
(i) by striking paragraph (2) and inserting
the following:
``(2) In the case of a surviving spouse--
``(A) of a miner whose death is due to pneumoconiosis;
``(B) in a claim filed after January 1, 2005, and that is
pending on or after March 23, 2010, of a miner who is found
entitled to receive benefits on a claim filed under part C;
``(C) of a miner who is found entitled to receive benefits on
a claim filed under part C before January 1, 1982; or
``(D) in a claim filed under part C before January 1, 1982,
of a miner who was totally disabled by pneumoconiosis at the
time of the miner's death,
benefits shall be paid to the miner's surviving spouse at the rate the
deceased miner would receive such benefits if he were totally
disabled.'';
(ii) in paragraph (3)--
(I) by striking ``(3) In the case''
and all that follows through ``section
411(c)'' and inserting the following:
``(3)(A) In the case of the child or
children of a miner described in
subparagraph (B)'';
(II) by striking ``he'' each place it
appears and inserting ``the child'';
(III) by striking ``widow'' each
place it appears and inserting
``surviving spouse''; and
(IV) by adding at the end the
following:
``(B) Subparagraph (A) shall apply in the case of any child or
children--
``(i) of a miner whose death is due to pneumoconiosis;
``(ii) in a claim filed after January 1, 2005, that is
pending on or after March 23, 2010, of a miner who is found
entitled to receive benefits on a claim filed under part C;
``(iii) of a miner who is found entitled to receive benefits
on a claim filed under part C before January 1, 1982;
``(iv) in a claim filed under part C before January 1, 1982,
of a miner who was totally disabled by pneumoconiosis at the
time of the miner's death;
``(v) of a surviving spouse who is found entitled to receive
benefits under this part at the time of the surviving spouse's
death; or
``(vi) entitled to the payment of benefits under paragraph
(5) of section 411(c).'';
(iii) in paragraph (5)--
(I) by striking the first sentence
and inserting the following: ``In the
case of the dependent parent or parents
of a miner who is not survived at the
time of death by a surviving spouse or
a child and (i) whose death is due to
pneumoconiosis, (ii) in a claim filed
after January 1, 2005, that is pending
on or after March 23, 2010, who is
found entitled to receive benefits on a
claim filed under part C, (iii) who is
found entitled to receive benefits on a
claim filed under part C before January
1, 1982, or (iv) in a claim filed under
part C before January 1, 1982, who was
totally disabled by pneumoconiosis at
the time of the miner's death; in the
case of the dependent surviving
brother(s) or sister(s) of such a miner
who is not survived at the time of the
miner's death by a surviving spouse,
child, or parent; in the case of the
dependent parent or parents of a miner
(who is not survived at the time of the
miner's death by a surviving spouse or
child) who are entitled to the payment
of benefits under paragraph (5) of
section 411(c); or in the case of the
dependent surviving brother(s) or
sister(s) of a miner (who is not
survived at the time of the miner's
death by a surviving spouse, child, or
parent) who are entitled to the payment
of benefits under paragraph (5) of
section 411(c), benefits shall be paid
under this part to such parent(s), or
to such brother(s), or sister(s), at
the rate specified in paragraph (3) (as
if such parent(s) or such brother(s) or
sister(s), were the children of such
miner).''; and
(II) in the fourth sentence--
(aa) by striking ``brother
only if he'' and inserting
``brother or sister only if the
brother or sister''; and
(bb) by striking ``before he
ceased'' and inserting ``before
the brother or sister ceased'';
and
(iv) in paragraph (6), by striking
``prescribed by him'' and inserting
``prescribed by such Secretary'';
(B) in subsection (b)--
(i) by striking ``his'' each place it appears
and inserting ``such miner's''; and
(ii) by striking ``widow'' each place it
appears and inserting ``surviving spouse''; and
(C) in subsection (c), by striking ``Internal Revenue
Code of 1954'' and inserting ``Internal Revenue Code of
1986'';
(5) in section 413 (30 U.S.C. 923)--
(A) in subsection (b)--
(i) in the second sentence, by striking ``his
wife's affidavits'' and inserting ``affidavits
of the miner's spouse'';
(ii) in the ninth sentence, by striking
``widow'' and inserting ``surviving spouse'';
and
(iii) by striking the last sentence; and
(B) in subsection (c), by striking ``his claim'' and
inserting ``the claim'';
(6) in section 414 (30 U.S.C. 924)--
(A) in subsection (a)--
(i) in paragraph (1), by striking ``widow,
within six months after the death of her
husband'' and inserting ``surviving spouse,
within six months after the death of the
miner''; and
(ii) in paragraph (2)(C), by striking ``his''
and inserting ``the child's''; and
(B) in subsection (e)--
(i) by striking ``widow'' and inserting
``surviving spouse''; and
(ii) by striking ``his death'' and inserting
``the miner's death'';
(7) in section 415(a) (30 U.S.C. 925(a))--
(A) in paragraph (1), by striking ``Internal Revenue
Code of 1954'' and inserting ``Internal Revenue Code of
1986''; and
(B) in paragraph (2)--
(i) by striking ``he'' and inserting ``such
Secretary''; and
(ii) by striking ``him'' and inserting ``such
Secretary'';
(8) in section 421 (30 U.S.C. 931)--
(A) in subsection (a), by striking ``widows'' and
inserting ``spouses''; and
(B) in subsection (b)(2)--
(i) in the matter preceding subparagraph (A),
by striking ``he'' and inserting ``such
Secretary''; and
(ii) in subparagraph (F), by striking
``promulgated by him'' and inserting
``promulgated by such Secretary'';
(9) in section 422 (30 U.S.C. 932)--
(A) in subsection (a)--
(i) by striking ``Internal Revenue Code of
1954'' and inserting ``Internal Revenue Code of
1986''; and
(ii) by striking ``he'' and inserting ``such
Secretary'';
(B) in subsection (i)(4), by striking ``Internal
Revenue Code of 1954'' and inserting ``Internal Revenue
Code of 1986''; and
(C) in subsection (j), by striking ``Internal Revenue
Code of 1954'' each place it appears and inserting
``Internal Revenue Code of 1986'';
(10) in section 423(a) (30 U.S.C. 933(a)), by striking ``he''
and inserting ``such operator'';
(11) in section 424(b) (30 U.S.C. 934(b))--
(A) in the matter following subparagraph (B) of
paragraph (1), by striking ``him'' and inserting ``such
operator'';
(B) in paragraph (3), by striking ``Internal Revenue
Code of 1954'' each place it appears and inserting
``Internal Revenue Code of 1986''; and
(C) in paragraph (5), by striking ``Internal Revenue
Code of 1954'' and inserting ``Internal Revenue Code of
1986'';
(12) in section 428 (30 U.S.C. 938)--
(A) in subsection (a), by striking ``him'' and
inserting ``such operator''; and
(B) in subsection (b)--
(i) in the first sentence, by striking ``he''
and inserting ``the miner'';
(ii) in the third sentence, by striking
``he'' and inserting ``the Secretary'';
(iii) in the ninth sentence--
(I) by striking ``he'' each place it
appears and inserting ``the
Secretary''; and
(II) by striking ``his'' and
inserting ``the miner's''; and
(iv) in the tenth sentence, by striking
``he'' each place it appears and inserting
``the Secretary''; and
(13) in section 430 (30 U.S.C. 940)--
(A) by striking ``1977 and'' and inserting ``1977,'';
and
(B) by striking ``1981'' and inserting ``1981, and
the Black Lung Benefits Improvement Act of 2022, and
any amendments made after the date of enactment of such
Act,''.
SEC. 302. SEVERABILITY.
If any provision of this Act or any amendment made by this Act, or
the application of a provision of this Act or an amendment made by this
Act to any person or circumstance, is held to be unconstitutional, the
remainder of this Act, and the application of the provisions to any
person or circumstance, shall not be affected by the holding.
Purpose and Summary
The purpose of H.R. 6102, the Black Lung Benefits
Improvement Act, is to improve the ability of miners and their
families to obtain meaningful supports in cases of disabling
and fatal black lung disease and to increase accountability for
the financial integrity and effectiveness of the black lung
benefits program. It does so through a set of reforms to put
miners and their survivors on a more equal footing with coal
operators by expanding the availability of legal assistance and
medical expertise, deterring willful misrepresentations by coal
operators, expanding assistance to miners through the Black
Lung Clinics program, allowing miners or their survivors to
reopen cases previously denied because of medical
interpretations that since have been discredited by the U.S.
Department of Labor (DOL), making adjustments to monthly cash
benefit levels to account for the erosion in value due to
inflation, and indexing cash benefits on a going-forward basis.
This legislation also includes provisions to hold self-insured
operators accountable for their obligations to secure payment
of benefits so that coal operators, not the taxpayer, cover the
cost of black lung benefits. Additionally, this legislation
improves accountability for administration of the Black Lung
Benefits Act\1\ (BLBA) and other federal workers' compensation
laws by codifying DOL's Office of Workers' Compensation
Programs (OWCP) and providing that its leadership, currently
appointed by the U.S. Secretary of Labor (Secretary), is
instead nominated by the President and subject to Senate
confirmation.
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\1\Pub. L. No. 91-173, Title IV (30 U.S.C Sec. 902 et seq.).
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H.R. 6102 has been endorsed by the Appalachian Citizens Law
Center; Appalachian Voices; Black Lung Association of Southwest
Virginia, Chapter 1; Black Lung Association of Southwest
Virginia, Chapter 2; Boone County Black Lung Association;
Fayette County Black Lung Association; Kannawha County Black
Lung Association; Mercer County WV Black Lung Association;
National Black Lung Association; Nicholas County Black Lung
Association; United Mine Workers of America; and Wyoming County
WV Black Lung Association.
Committee Consideration
113TH CONGRESS
On July 22, 2014, the Subcommittee on Employment and
Workplace Safety of the Senate Committee on Health, Education,
Labor, and Pensions (HELP Committee) held a hearing entitled
``Coal Miners'' Struggle for Justice: How Unethical Legal and
Medical Practices Stack the Deck Against Black Lung
Claimants.'' The Subcommittee heard testimony on the
significant number of erroneous denials of black lung benefits
due to medical evidence hidden by the lawyers of mine operators
and false-negative diagnoses by doctors paid by mine operators.
The Subcommittee also heard testimony on the financial and
procedural barriers claimants face when seeking legal counsel,
which included appeal delays; in the decade between 2004 and
2014, the time to assign an Administrative Law Judge (ALJ) to
an appeal of an initial decision increased from just over three
months to more than 14 months. The witnesses for the hearing
were: Mr. Chris Lu, Deputy Secretary of Labor, U.S. Department
of Labor, Washington, DC; Ms. Patricia Smith, Solicitor of
Labor, U.S. Department of Labor, Washington, DC; Dr. John
Howard, Director of the National Institute for Occupational
Safety and Health (NIOSH), Washington, DC; Mr. John Cline,
attorney for black lung claimants, Piney View, WV; Dr. Jack
Parker, Pulmonary Section Chief of the West Virginia University
Department of Medicine, Morgantown, WV; Mr. Robert Bailey,
former coal mine worker, Princeton, WV; and Mr. Robert Briscoe,
Principal and Senior Consultant for Milliman, Inc., New York,
NY.
On November 20, 2014, Rep. Matt Cartwright (D-PA-17)
introduced H.R. 5751, the Black Lung Benefits Improvement Act
of 2014. The bill was referred to the House Committee on
Education and the Workforce. Among other things, the bill would
have amended the BLBA to: establish an attorneys' fee program
for prevailing parties; establish an irrebuttable presumption
of total disability for black lung disease confirmed by a
radiograph, biopsy, autopsy, or other medically accepted test
or procedure; update the elements of proof to establish a
rebuttable presumption of disability due to black lung disease;
prohibit any claimant, physician, operator, or duly authorized
agent of the operator from knowingly and willfully making a
false statement, with civil and monetary penalties for
violations; update the rate of pay for monthly cash benefits to
include cost-of-living adjustments for years in which there was
a federal wage freeze and tie future increases to the Consumer
Price Index for Urban Wage Earners and Clerical Workers (CPI-
W); and provide claimants one year from the date of enactment
to allow de novo re-adjudication of previously denied claims.
No further action was taken on the legislation.
On November 20, 2014, Senator Robert Casey (D-PA)
introduced S. 2959, a companion bill to H.R. 5751. The bill was
referred to the HELP Committee. No further action was taken on
the legislation.
114TH CONGRESS
On September 28, 2015, Rep. Cartwright introduced H.R.
3625, the Black Lung Benefits Improvement Act of 2015. The bill
was referred to the Committees on Education and the Workforce
and Ways and Means. The bill would have amended the BLBA to:
establish an attorneys' fee program for prevailing parties;
establish an irrebuttable presumption of total disability for
black lung disease confirmed by a radiograph, biopsy, autopsy,
or other medically accepted test or procedure; update the
elements of proof to establish a rebuttable presumption of
disability due to black lung disease; prohibit any claimant,
physician, operator, or duly authorized agent of the operator
from knowingly and willfully making a false statement, with
civil and monetary penalties for violations; direct
adjudicators to resolve issues of evidence in equipoise in the
claimants' favor; update the rate of pay to include cost-of-
living adjustments for years in which there was a federal wage
freeze and tie future increases to the CPI W; and provide
claimants one year from the date of enactment to allow de novo
re-adjudication of previously denied claims. No further action
was taken on the legislation.
On September 29, 2015, Senator Casey introduced S. 2096, a
companion bill to H.R. 3625. The bill was referred to the HELP
Committee. No further action was taken on the legislation.
On October 21, 2015, the Subcommittee on Workforce
Protections of the House Committee on Education and the
Workforce held a hearing entitled ``Protecting America's
Workers: Reviewing Mine Safety Policies with Stakeholders.''
The Subcommittee heard testimony on the issue of mine safety,
the dangers and rising incidence of black lung disease, and the
need for changes to the black lung benefits program. The
witnesses for the hearing were: Mr. Steve Sanders, Esq.,
Director of the Appalachian Citizens' Law Center, Whitesburg,
KY; Mr. Mike Wright, Director of Health, Safety, and
Environment for the United Steelworkers, Pittsburgh, PA; Mr. Ed
Elliott, Director of Safety and Health of Rogers Group, Inc.,
Vincennes, IL; Dr. Jeffrey L. Kohler, Professor and Chair of
Mining Engineering at the Pennsylvania State University,
University Park, PA; and Mr. Bruce Watzman, Senior Vice
President of Regulatory Affairs of the National Mining
Association, Washington, DC.
115TH CONGRESS
On April 5, 2017, Rep. Cartwright introduced H.R. 1912, the
Black Lung Benefits Improvement Act of 2017. The bill was
referred to the Committees on Education and the Workforce and
Ways and Means. The bill would have amended the BLBA to:
establish an attorneys' fee program for prevailing parties;
establish an irrebuttable presumption of total disability for
black lung disease confirmed by a radiograph, biopsy, autopsy,
or other medically accepted test or procedure; update the
elements of proof to establish a rebuttable presumption of
disability due to black lung disease; prohibit any claimant,
physician, operator, or duly authorized agent of the operator
from knowingly and willfully making a false statement, with
civil and monetary penalties for violations; direct
adjudicators to resolve issues of evidence in equipoise in the
claimants' favor; update the rate of pay to include cost of
living adjustments for years in which there was a federal wage
freeze and tie future increases to the CPI-W; and provide
claimants one year from the date of enactment to allow de novo
re-adjudication of previously denied claims. No further action
was taken on the legislation.
On April 5, 2017, Senator Casey introduced S. 855, a
companion bill to H.R. 1912. The bill was referred to the HELP
Committee. No further action was taken on the legislation.
On February 6, 2017, the Subcommittee on Workforce
Protections of the House Committee on Education and Workforce
held a hearing entitled ``Reviewing the Policies and Priorities
of the Mine Safety and Health Administration.'' The
Subcommittee heard testimony on mine safety and the increasing
cases of black lung disease, the need for changes to the black
lung benefits program, and the need for the Mine Safety and
Health Administration to update its silica exposure
regulations. The witness for the hearing was Mr. David G.
Zatezalo, Assistant Secretary of Labor for Mine Safety and
Health, U.S. Department of Labor, Washington, DC.
116TH CONGRESS
On June 20, 2019, the Subcommittee on Workforce Protections
of the House Committee on Education and Labor held a hearing
entitled ``Breathless and Betrayed: What is MSHA Doing to
Protect Miners from the Resurgence of Black Lung Disease?'' The
Subcommittee heard testimony on the increasing cases of the
most severe form of black lung disease, the high prevalence of
black lung disease in miners in their 30s and 40s, and the need
for increased oversight and funding for the black lung workers'
compensation program. The witnesses were: Dr. Robert Cohen, MD,
FCCP, Clinical Professor of Environmental and Occupational
Health Sciences at the University of Illinois School of Public
Health, Chicago, IL; Mr. Gary Hairston, Vice President of the
Fayette County Black Lung Association, Beckley, WV; Mr. Cecil
Roberts, President of the United Mine Workers of America,
Triangle, VA; Dr. John Howard, MD, Director of NIOSH,
Washington, DC; Mr. David G. Zatezalo, Assistant Secretary of
Labor for Mine Safety and Health, U.S. Department of Labor,
Washington, DC; Ms. Cindy Brown Barnes, Director of Education,
Workforce, and Income Security for the Government
Accountability Office, Washington, DC; and Mr. Bruce Watzman,
former Senior Vice President of Regulatory Affairs of the
National Mining Association, Sarasota, FL.
On July 23, 2019, Senator Casey introduced S. 2205, the
Black Lung Benefits Improvement Act of 2019. The bill would
have amended the BLBA to: establish an attorneys' fee program
for prevailing parties; establish an irrebuttable presumption
of total disability for black lung disease confirmed by a
radiograph, biopsy, autopsy, or other medically accepted test
or procedure; update the elements of proof to establish a
rebuttable presumption of disability due to black lung disease;
prohibit any claimant, physician, operator, or duly authorized
agent of the operator from knowingly and willfully making a
false statement, with civil and monetary penalties for
violations; direct adjudicators to resolve issues of evidence
in equipoise in the claimants' favor; update the rate of pay to
include cost-of-living adjustments for years where there was a
federal wage freeze and tie future increases to the CPI-W; and
provide claimants one year from the date of enactment to allow
de novo re-adjudication of previously denied claims. The bill
was referred to the HELP Committee. No further action was taken
on the legislation.
On February 26, 2020, the Subcommittee on Workforce
Protections of the House Committee on Education and Labor held
a hearing entitled ``Asleep at the Switch: How the Department
of Labor Failed to Oversee the Black Lung Disability Trust
Fund.'' The Subcommittee heard testimony on the failings of DOL
to secure sufficient collateral from self-insuring coal mining
companies, regularly reassess the sufficiency of collateral
from self-insuring coal mining companies, and protect the Black
Lung Disability Trust Fund (Trust Fund) from benefit
liabilities being shifted onto it from insolvent coal mines.
The witnesses were: Ms. Cindy Brown Barnes, Director of
Education, Workforce, and Income Security, the Government
Accountability Office, Washington, DC; and Ms. Julia Hearthway,
Director, Office of Workers' Compensation Programs, U.S.
Department of Labor, Washington, DC.
117TH CONGRESS
On December 1, 2021, Rep. Cartwright introduced H.R. 6102,
the Black Lung Benefits Improvement Act of 2021. The bill was
referred to the Committees on Education and Labor and Ways and
Means. The bill would amend the BLBA to: establish an
attorneys' fee program for prevailing parties; establish an
irrebuttable presumption of total disability for black lung
disease confirmed by a radiograph, biopsy, autopsy, or other
medically accepted test or procedure; update the elements of
proof to establish a rebuttable presumption of disability due
to black lung disease; prohibit any claimant, physician,
operator, or duly authorized agent of the operator from
knowingly and willfully making a false statement, with civil
and monetary penalties for violations; direct adjudicators to
resolve issues of evidence in equipoise in the claimants'
favor; update the rate of pay to include cost of living
adjustments for years in which there was a federal wage freeze
and tie future increases to the CPI-W; require the Secretary to
promulgate regulations for self-insured operators to maintain
sufficient security for black lung liabilities; and provide
claimants one year from the date of enactment to allow de novo
re-adjudication of previously denied claims.
On December 2, 2021, the Subcommittee on Workforce
Protections of the House Committee on Education and Labor held
a hearing entitled ``Strengthening the Safety Net for Injured
Workers'' (December 2nd Hearing). The Subcommittee heard
testimony on the need for increased oversight of self-insured
mine companies and the need for additional Trust Fund revenue
through a return to a higher tax on domestically produced and
consumed coal. The witnesses were: Mr. Christopher J. Godfrey,
Director, Office of Workers' Compensation Programs, U.S.
Department of Labor, Washington, DC; and Mr. Thomas M. Costa,
Director of Education, Workforce, and Income Security,
Government Accountability Office, Washington, DC.
On March 16, 2022, the Committee on Education and Labor
marked up H.R. 6102. An Amendment in the Nature of a Substitute
(ANS) was offered by Rep. Alma Adams (D-NC-12). The ANS
incorporated H.R. 6102 with the following modifications:
Adding the year ``2022'' to the title of the
bill;
Adjusting benefit levels for miners and
survivors beginning in calendar year 2022 to account
for four years of frozen or minimal cost-of-living
adjustments and indexing levels to the CPI-W starting
in 2023;
Clarifying the content of regulations for
self-insured coal operators and the criteria for
authorizing CT lung scans; and
Removing provisions involving medical
information, the 15-year presumption, evidence in
equipoise, and a training program.
Three amendments to the ANS were offered:
Rep. Fred Keller (R-PA-12) offered an
amendment to strike the provision allowing progress
payments on attorney fees and replace it with a
provision to permit settlement of claims in lieu of
full disability benefits. The amendment was defeated by
a vote of 22 Yeas and 27 Nays.
Rep. Mondaire Jones (D-NY-17) offered an
amendment to amend the BLBA to prohibit the ability of
coal operators to self-insure for black lung benefit
liabilities. The amendment was withdrawn.
Rep. Virginia Foxx (R-VA-5) offered an
amendment to prohibit OWCP from monitoring any state
workers' compensation program. The amendment was
defeated by a vote of 22 Yeas and 27 Nays.
The ANS was adopted by voice vote. The Committee on
Education and Labor ordered H.R. 6102 to be reported favorably,
as amended, to the House of Representatives by a vote of 28
Yeas and 22 Nays.
Committee Views
Coal miners, whose work has powered the American economy,
are continuing to develop disabling and deadly lung diseases
collectively known as ``black lung.'' Although mine safety and
health standards decreased this risk for decades following the
passage of the Federal Coal Mine Health and Safety Act\2\ (Coal
Act) in 1969, rates started to climb again in the 2000s. More
than three times as many coal miners were identified as having
black lung disease from 2010 to 2014 compared to 1995 to
1999.\3\
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\2\Pub. L. No. 91-173, 83 Stat. 742 (1969).
\3\Off. Of Inspector Gen., U.S. Dep't Of Lab., Rep. No. 05-21-001-
06-001, MSHA Needs to Improve Efforts to Protect Coal Miners from
Respirable Crystalline Silica 1 (Nov. 12, 2020), https://
www.oig.dol.gov/public/reports/oa/2021/05-21-001-06-001.pdf.
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The BLBA provides income support and medical care benefits
to miners who are totally disabled by pneumoconiosis arising
out of coal mine employment and compensation to survivors of
coal miners whose deaths are attributable to the disease. The
claims process for those benefits, however, is both adversarial
and daunting. Coal operators have leveraged their formidable
legal resources and medical experts to overwhelm the capacity
of disabled miners and their families to secure benefits to
which they are otherwise entitled. A Pulitzer Prize-winning
series of investigative reports in 2013 by the Center for
Public Integrity (the Center), coupled with reporting by NPR,
ABC News, the Charleston Gazette, and others, uncovered
patterns of deception, suppression of evidence, and willful
distortion of diagnostic tests by coal operators' counsel and
medical experts aimed at preventing miners and their survivors
from obtaining the benefits to which they were rightfully
entitled. Some of these tactics force cases to stretch out for
decades.
Meanwhile, some coal operators have evaded most of their
black lung benefit obligations. Some self-insured operators
have initiated bankruptcy proceedings and then shifted
undercollateralized black lung benefit liabilities onto the
Trust Fund. As discussed later, the Trust Fund was created to
cover the cost of benefits to miners whose employment ended
before 1970 and serve as a backstop for benefits in cases of
miners whose employment ended after 1969 and for whom no
responsible operator can be found. The primary source of
revenue for the Trust Fund is an excise tax on coal, the rate
of which has fluctuated. The approximately $1 billion in
liabilities shifted onto the Trust Fund since 2014 by under-
collateralized self-insured operators has compounded the
billions of debt accrued in the Trust Fund because of a number
of other factors, including insufficient tax revenue, leaving
taxpayers on the hook instead of operators in many cases.
To address these challenges, the Committee on Education and
Labor (Committee) has reported H.R. 6102, the Black Lung
Benefits Improvement Act (the Act).
BLACK LUNG IS A PROGRESSIVE DISEASE THAT DISABLES AND KILLS COAL MINERS
Types of Black Lung
Black lung is an umbrella term for a group of chronic lung
disorders afflicting coal miners.
Medical providers use the term Coal Workers' Pneumoconiosis
(CWP) to diagnose what is more commonly called ``black lung.''
CWP is caused by repeated inhalation of dust from coal mines.
The risk of developing CWP is positively related to the
cumulative amount of respirable coal mine dust inhaled by a
miner over time.\4\ Because the disease results from cumulative
exposure, CWP does not typically develop until several decades
after initial mine dust inhalation.\5\
---------------------------------------------------------------------------
\4\Nat'l Inst. for Occ. Safety & Health, DHHS (NIOSH) Pub. No.
2011-172, Curr. Intel. Bull. 64, Coal Mine Dust Exposures and
Associated Health Outcomes: A Review of Information Published Since
1995, at 5 (2011), https://www.cdc.gov/niosh/docs/2011-172/
default.html.
\5\Breathless and Betrayed: What Is MSHA Doing to Protect Miners
from a Resurgence of Black Lung Disease?: Hearing Before the Subcomm.
on Wrkf. Prots. of the H. Comm. on Educ. & Lab., 116th Cong. 91 (2019)
[hereinafter Breathless and Betrayed] (statement of Dr. John Howard,
Dir., Nat'l Inst. for Occ. Safety & Health).
---------------------------------------------------------------------------
Dust inhalation damages the lungs and leads to difficulty
breathing for miners diagnosed with CWP. Inhaling dust results
in fibrosis, or scarring, of the lung tissue, leading to the
appearance of masses, or ``opacities,'' on a chest X-ray. This
tissue damage reduces the lungs' ability to remove carbon
dioxide and transmit oxygen to the rest of the body.\6\ The
lung damage from CWP makes it hard to take a deep, full breath.
Miners suffering from CWP liken the feeling to inhaling with a
plastic bag over your head or drowning underwater.\7\
---------------------------------------------------------------------------
\6\Scott D. Szymendera & Molly F. Sherlock, Cong. Res. Serv.,
R45261, The Black Lung Program, the Black Lung Disability Trust Fund,
and the Excise Tax on Coal: Background and Policy Options 1 (Jan. 18,
2019), https://crsreports.congress.gov/product/pdf/R/R45261.
\7\Cat Schuknecht, ``I Figured It Was Going to Be a Horrible Death,
And It Probably Will Be'', NPR (Jan. 23, 2019), https://www.npr.org/
2019/01/23/686000458/i-figured-it-was-going-to-be-a-horrible-death-and-
it-probably-will-be.
---------------------------------------------------------------------------
Additional diseases under the ``black lung'' umbrella fall
into the categories of medical, or ``clinical,'' pneumoconiosis
and statutory, or ``legal,'' pneumoconiosis:
``Clinical pneumoconiosis'' includes
``conditions characterized by permanent deposition of
substantial amounts of particulate matter in the lungs
and the fibrotic reaction of the lung tissue to that
deposition caused by dust exposure in coal mine
employment.''\8\ The clinical definition includes many
types of pneumoconioses, such as CWP,
anthracosilicosis, silicosis, and
silicotuberculosis.\9\
---------------------------------------------------------------------------
\8\OWCP Standards for Determining Coal Miners' Total Disability or
Death Due to Pneumoconiosis, 20 C.F.R. Sec. 718.201(a)(1).
\9\Id.
---------------------------------------------------------------------------
The term ``legal pneumoconiosis'' does not constitute
a medical diagnosis; instead, it reflects the BLBA's
definition of the disease as ``a chronic dust disease
of the lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine
employment.''\10\ Legal pneumoconiosis is broader than
the definition used in the medical community. For
example, legal pneumoconiosis includes chronic
obstructive pulmonary disease (COPD) arising from coal
mine employment,\11\ while COPD from coal dust exposure
would not be considered pneumoconiosis under the
clinical definition. Legal pneumoconiosis includes all
conditions within the definition of clinical
pneumoconiosis and additional lung diseases caused by
employment in a coal mine.
---------------------------------------------------------------------------
\10\BLBA Sec. 402(b) (30 U.S.C. Sec. 902(b)). See also Jeffrey R.
Lindequist, The Black Lung Benefits Act--Sixteen Tons, What Do You
Get?: How Do You Determine a Miner Has Had a Material Change in
Condition to Allow a Subsequent Claim for Benefits?, 29 W. New Eng. L.
Rev. 497, 502 (2007).
\11\Warth v. S. Ohio Coal Co., 60 F.3d 173, 174-75 (4th Cir. 1995).
---------------------------------------------------------------------------
Progressive and Deadly
A coal miner initially diagnosed with CWP may not notice
any symptoms. However, because CWP is a progressive disease,
initial lung damage worsens over time. As the disease
progresses, a cough and shortness of breath develop. These
effects may progress even after miners are no longer exposed to
respirable coal mine dust. Other complications such as
pulmonary and cardiac failure may follow, potentially resulting
in total disability and premature death.\12\
---------------------------------------------------------------------------
\12\See Lowering Miners' Exposure to Respirable Coal Mine Dust,
Including Continuous Personal Dust Monitors, 79 Fed. Reg. 24,813,
24,819 (May 1, 2014).
---------------------------------------------------------------------------
Continued dust exposure can lead to progression from the
early stages of CWP, referred to as ``simple CWP,'' to more
advanced stages of scarring referred to as ``complicated CWP''
or progressive massive fibrosis (PMF).\13\ Some miners may be
initially diagnosed with PMF if their lung imaging shows
substantial scarring meeting the diagnostic criteria discussed
below.
---------------------------------------------------------------------------
\13\Szymendera & Sherlock, supra note 6, at 1.
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There is no cure for CWP or PMF.\14\ However, certain
treatments can slow disease progression and relieve symptoms.
Pulmonary rehabilitation is typically recommended to help
improve quality of life.\15\ Supplemental oxygen and medication
can be prescribed to increase airflow to the lungs.\16\ In rare
cases, medical providers may attempt a lung transplant to
extend a patient's life.\17\ Absent a transplant, CWP leaves
miners' lungs scarred, shriveled, and black. As the disease
progresses, miners struggle to do routine daily tasks such as
eating and breathing.\18\ Dr. Edward Petsonk, a physician who
treats patients with black lung, describes suffering from the
disease as ``a screw being slowly tightened across your throat.
Day and night towards the end, the miner struggles to get
enough oxygen. It is really almost a diabolical torture.''\19\
---------------------------------------------------------------------------
\14\Breathless and Betrayed, supra note 5, at 91 (statement of Dr.
John Howard).
\15\Treating and Managing Coal Worker's Pneumoconiosis, Am. Lung
Ass'n, https://www. lung.org/lung-health-diseases/lung-disease-lookup/
black-lung/treating-and-managing (last visited Apr. 7, 2022).
\16\Id.
\17\Id.
\18\Chris Hamby, Black Lung Surges Back in Coal Country, Ctr. For
Pub. Integrity (July 8, 2012), https://publicintegrity.org/inequality-
poverty-opportunity/workers-rights/black-lung-surges-back-in-coal-
country/.
\19\Id.
---------------------------------------------------------------------------
The Resurgence of Black Lung
Too many miners in the United States have suffered this
``diabolical torture.'' Black lung has caused or contributed to
hundreds of thousands of deaths in the 20th and 21st centuries.
At least 365,000 miners died from pneumoconiosis prior to the
passage of the Coal Act.\20\ From 1968 through 2007, black lung
caused or contributed to roughly 75,000 deaths in the United
States, according to federal government data.\21\
---------------------------------------------------------------------------
\20\Christopher W. Shaw, Ctr. For Study Of Resp. Law, Undermining
Safety: A Report On Coal Mine Safety 7 (2008), https://csrl.org/wp-
content/uploads/2018/05/UnderminingSafety
.pdf.
\21\Hamby, supra note 18.
---------------------------------------------------------------------------
Rates of black lung disease decreased from the 1970s to the
1990s. Following the 1969 enactment of the Coal Act, which
established enforceable limits on miners' coal dust exposure
for the first time, rates of black lung disease dropped from
more than 30 percent in miners in the 1970s to only 5 percent
by the late 1990s while rates of its most severe form, PMF,
declined from 3.5 percent to 0.5 percent.\22\ By the late
1990s, the goal of eradicating black lung disease seemed within
reach.
---------------------------------------------------------------------------
\22\David J. Blackley et al., Continued Increase in Prevalence of
Coal Workers' Pneumoconiosis in the United States, 1970-2017, 108 Am.
J. Pub. Health 1220 (2018) [hereinafter Continued Increase]; David J.
Blackley et al., Resurgence of Progressive Massive Fibrosis in Coal
Miners--Eastern Kentucky, 2016, 65 Morb. & Mort. Wkly. Rep. 1385
(2016).
---------------------------------------------------------------------------
Although considered to be a disease of the past, black lung
disease among working and former coal miners is returning with
a vengeance. Researchers can see this resurgence in chest X-ray
surveillance data, black lung benefits claim data, and
mortality data.\23\ X-ray surveillance data indicates that 10
percent of miners had imaging consistent with a CWP diagnosis
by 2017, up from 5 percent two decades prior.\24\ This
resurgence is most severe in the central Appalachian states of
Kentucky, West Virginia, and Virginia, where 20.6 percent of
coal miners with tenures of 25 years or more now have black
lung disease.\25\
---------------------------------------------------------------------------
\23\Breathless and Betrayed, supra note 5, at 13 (statement of Dr.
Robert Cohen).
\24\Blackley et al., Continued Increase, supra note 22, at 1221.
\25\Id.
---------------------------------------------------------------------------
The most severe form of black lung, PMF, is also on the
rise among miners in the United States. PMF prevalence tripled
between the 1980s and the 2000s\26\ and now exceeds rates
reported in the 1970s.\27\ In 2014, 8.3 percent of black lung
benefits claims were due to PMF, an increase from less than 2
percent of claims between 1970 and 1996.\28\ As with simple
CWP, the PMF resurgence appears to be most severe in central
Appalachia.\29\
---------------------------------------------------------------------------
\26\Hamby, supra note 18.
\27\Chris Hamby, Black Lung Surges to Highs Not Seen Since the 70s,
Research Shows, Ctr. for Pub. Integrity (Sept. 15, 2014), http://
www.publicintegrity.org/2014/09/15/15538/black-lung-disease-surges-
highs-not-seen-70s-research-shows.
\28\Breathless and Betrayed, supra note 5, at 12.
\29\ Hamby, supra note 18.
---------------------------------------------------------------------------
One explanation for the increase in both simple CWP and PMF
since the late 1990s is that miners are now breathing a more
potent mix of mine dust. As larger coal seams are mined out,
coal companies have turned to mining thinner seams surrounded
by more rock.\30\ The rock which surrounds coal seams contains
silica. When this rock is cut, the resulting silica dust is
approximately 20 times more toxic than coal dust and causes
faster lung disease progression.\31\ A new research study
released in April 2022 analyzing pathology specimens now backs
this theory\32\ and, in the words of the lead author, is ``the
smoking gun'' establishing the causal role of silica.\33\
---------------------------------------------------------------------------
\30\Id.
\31\Howard Berkes et al., An Epidemic Is Killing Thousands of Coal
Miners. Regulators Could Have Stopped It, NPR (Dec. 18, 2018), https://
www.npr.org/2018/12/18/675253856/an-epidemic-is-killing-thousands-of-
coal-miners-regulators-could-have-stopped-it.
\32\Robert A. Cohen et al., Pathology and Mineralogy Demonstrate
Respirable Crystalline Silica is a Major Cause of Severe Pneumoconiosis
in US Coal Miners, Annals Amer. Thoracic Soc'y (forthcoming 2022),
https://www.atsjournals.org/doi/pdf/10.1513/AnnalsATS.202109-1064OC.
\33\Robert Benincasa, Researchers Say They've Linked Silica Dust
Directly to Severe Black Lung Disease, NPR (Apr. 13, 2022), https://
www.npr.org/2022/04/13/1092690291/researchers-say-theyve-linked-silica-
dust-directly-to-severe-black-lung-disease.
---------------------------------------------------------------------------
It is likely that the current black lung resurgence is even
more severe than the data show. Many miners avoid medical
screening, as a black lung diagnosis would mean having to leave
their mining careers--oftentimes the only way miners know how
to provide for their families.\34\ A. Scott Laney,
epidemiologist with the National Institute for Occupational
Safety and Health (NIOSH), calls this resurgence of black lung
``one of the largest industrial medicine disasters that the
United States has ever seen.''\35\
---------------------------------------------------------------------------
\34\Hamby, supra note 18.
\35\Howard Berkes, NPR Continues to Find Hundreds of Cases of
Advanced Black Lung, NPR (July 1, 2017), https://www.npr.org/sections/
thetwo-way/2017/07/01/535082619/npr-continues-to-find-hundreds-of-
cases-of-advanced-black-lung.
---------------------------------------------------------------------------
THE BLBA ESTABLISHES A BENEFIT PROGRAM FOR DISABILITY AND DEATH DUE TO
WORK-RELATED PNEUMOCONIOSIS
To address the economic and medical consequences of black
lung for miners and their families, Congress established
through the BLBA a national compensation program.
Eligibility Criteria
A miner is eligible for benefits with proof, by a
preponderance of the evidence, of the following:
(1) the miner has pneumoconiosis;
(2) the pneumoconiosis arose out of coal employment;
(3) the miner is totally disabled; and
(4) the pneumoconiosis contributes to the miner's
total disability.\36\
---------------------------------------------------------------------------
\36\These elements, distilled at 20 C.F.R. Sec. 725.202(d)(2)(i)-
(iv), derive from section 411 of the BLBA (30 U.S.C. Sec. 921).
---------------------------------------------------------------------------
A dependent survivor, meanwhile, must establish (again by a
preponderance of the evidence) that the miner died due to
pneumoconiosis that arose out of coal employment.\37\ As
discussed further below, the BLBA and its accompanying
regulations create standards for claimants to prove their
eligibility, in particular through statutory presumptions and
diagnostic evidence.
---------------------------------------------------------------------------
\37\See 20 C.F.R. Sec. Sec. 725.212 (surviving spouses or divorced
spouses), 725.218 (dependent children), 725.222 (parents or siblings).
---------------------------------------------------------------------------
Statutory Presumptions
The BLBA has been amended multiple times to adjust the
availability of presumptions.\38\ Currently, for contemporary
claimants, the following presumptions can apply:
---------------------------------------------------------------------------
\38\See generally Lindequist, supra note 10; Donald T. DeCarlo, The
Federal Black Lung Experience, 26 How. L.J. 1335 (1983).
---------------------------------------------------------------------------
Mining career presumptions: Two presumptions
are available to claimants whose cases relate to miners
with significant tenures in coal employment.
10-year presumption: In claims
related to miners with pneumoconiosis who
worked 10 or more years in coal mines,
claimants can benefit from a rebuttable
presumption that the pneumoconiosis arose out
of employment.\39\
---------------------------------------------------------------------------
\39\BLBA Sec. 411(c)(1) (30 U.S.C. Sec. 921(c)(1)).
---------------------------------------------------------------------------
15-year presumption: In claims
related to miners with a totally disabling
respiratory or pulmonary impairment who worked
15 or more years in underground coal mines or
substantially similar above-ground coal
employment, claimants can benefit from a
rebuttable presumption that the miner is
totally disabled due to pneumoconiosis, was
totally disabled by pneumoconiosis at the time
of death, or died due to pneumoconiosis, as the
case may be. This presumption can be rebutted
only by proof either (1) that the miner does
not or did not have pneumoconiosis or (2) that
no part of the miner's disabling respiratory or
pulmonary impairment was related to coal
employment.\40\
---------------------------------------------------------------------------
\40\Id. Sec. 411(b)(4) (30 U.S.C. Sec. 921(b)(4)).
---------------------------------------------------------------------------
PMF diagnosis presumption: In the case of
miners diagnosed with the most severe form of black
lung, PMF, claimants benefit from an irrebuttable
presumption that the miner is totally disabled by or
died due to pneumoconiosis.\41\ The means of diagnosis
are discussed further in the next section.
---------------------------------------------------------------------------
\41\OWCP Standards for Determining Coal Miners' Total Disability or
Death Due to Pneumoconiosis, 20 C.F.R. Sec. 718.304.
---------------------------------------------------------------------------
Finally, survivors are automatically entitled to survivor
benefits if the coal miner had already established the miner's
own eligibility and died while receiving federal black lung
benefits.\42\ Both this automatic entitlement policy and the
15-year presumption were features of the BLBA that had been
eliminated by subsequent amendments but were restored in 2010
by provisions of the Patient Protection and Affordable Care Act
known popularly as the ``Byrd Amendments.''\43\ Prior to the
Byrd Amendments, survivors were required to prove anew that the
miner had actually died from black lung. ``And because most
infirm people suffer from multiple health problems before
dying,'' explains claimant attorney Evan Smith, ``litigation
over the cause of the miner's death was often difficult,
protracted, and out of proportion to the [low] benefits.''\44\
---------------------------------------------------------------------------
\42\BLBA Sec. 422(l) (30 U.S.C. Sec. 932(l)).
\43\Evan Barret Smith, Black Lung in the 21st Century: Disease,
Law, and Policy, 120 W. Va. L. Rev. 797, 806-808 (2016).
\44\Id. at 807.
---------------------------------------------------------------------------
The Byrd Amendments were incomplete. Although the automatic
entitlement provision was clearly restored, several other
sections of the BLBA cross-referencing benefits for these
miners and surviving spouses were left un-amended.\45\ As a
result, there is a split among the federal appeals courts over
how thoroughly the Byrd Amendments are meant to apply.\46\
---------------------------------------------------------------------------
\45\Maureen Hughes, Blue Skies for Black Lung Benefits Act
Survivors?: Courts' Interpretations of Sec. 932(l) Following the
Enactment of the Patient Protection and Affordable Care Act, 64 Cath.
U.L. Rev. 183 (2014).
\46\Leanne Kasburg, Traveling Through the Dark Side of Statutory
Interpretation: Shaping Black Lung Benefits Awards for Surviving
Spouses, 48 Akron L. Rev. 1009 (2015).
---------------------------------------------------------------------------
Accordingly, the Act amends the BLBA to complete the
unfinished work of the Byrd Amendments. Section 301 makes a
number of technical and conforming amendments. In addition to
amendments that update the BLBA to substitute gender-neutral
terms (such as ``surviving spouse'' in place of ``widow'') and
clarify that marital status is determined by the courts of the
state in which the marriage was celebrated rather than the
state of domicile, section 301 makes technical corrections
that, consistent with the clear language and intent of the Byrd
Amendments and several circuit court decisions,\47\ ensure that
the Byrd Amendments are applied consistently throughout the
BLBA.
---------------------------------------------------------------------------
\47\Hughes, supra note 45, at 198-201.
---------------------------------------------------------------------------
Diagnostic Tests
Most cases of CWP are not diagnosed via a single,
definitive test. Instead, CWP is typically diagnosed using a
physician's sound medical judgement based on various sources of
medical evidence. Under current law, a finding of CWP can be
made by satisfying one of three criteria:
(1) a chest X-ray meeting international standards,
(2) an autopsy or biopsy confirming pneumoconiosis,
or
(3) a physician's determination based on other
objective medical evidence.\48\
---------------------------------------------------------------------------
\48\OWCP Standards for Determining Coal Miners' Total Disability or
Death Due to Pneumoconiosis, 20 C.F.R. Sec. 718.202(a).
---------------------------------------------------------------------------
CWP is typically detected through radiological imaging such
as chest X-rays and CT scans.\49\ (CT scans are used less
frequently than chest X-rays because, although they are more
sensitive than X-rays, they come with a higher cost and
increased radiation exposure to the patient.\50\) Chest X-rays
and CT scans can show shadows in the lungs called opacities,
which appear as light spots on a film image. CWP diagnosis is
based on the reader's classification of the size, shape,
profusion, and location of these opacities.\51\ Chest images of
miners are classified according to the International Labour
Organization (ILO) International Classification of Radiographs
of Pneumoconioses,\52\ the most widely used standardized
guidance to evaluate lung abnormalities.\53\ These guidelines
help medical providers describe their readings of lung images
and standardize which opacity features are considered to be
pneumoconiosis.
---------------------------------------------------------------------------
\49\Pneumoconioses, Nat'l Inst. for Occ. Safety & Health, https://
www.cdc.gov/niosh/topics/pneumoconioses/ (last visited Apr. 7, 2022).
\50\Edward L. Petsonk et al., Coal Mine Dust Lung Disease: New
Lessons from an Old Exposure, 187 Am. J. Resp. & Crit. Care Med. 1178,
1182 (2013).
\51\Nat'l Inst. for Occ. Safety & Health, supra note 4, at xii.
\52\Int'l Lab. Org., Guidelines for the Use of the ILO
International Classification of Radiographs of Pneumoconioses 5 (rev.
ed. 2011), https://www.ilo.org/wcmsp5/groups/public/---ed_protect/---
protrav/---safework/documents/publication/wcms_168260.pdf [hereinafter
ILO Guidelines].
\53\Chest Radiography, Nat'l Inst. for Occ. Safety & Health,
https://www.cdc.gov/niosh/
topics/chestradiography/default.html (last visited Apr. 7, 2022).
---------------------------------------------------------------------------
CWP can also be diagnosed by a biopsy or autopsy analyzing
tissue evidence from the miner's lungs. Federal regulation
stipulates that ``[a] negative biopsy is not conclusive
evidence that the miner does not have pneumoconiosis. However,
where positive findings are obtained on biopsy, the results
will constitute evidence of the presence of
pneumoconiosis.''\54\ Biopsies are not frequently used to
diagnose CWP as they can put the patient at medical risk,\55\
and leading experts--the American Lung Association, NIOSH, DOL,
and an array of prominent researchers and doctors--agree that
biopsies are rarely necessary to diagnose CWP.\56\
---------------------------------------------------------------------------
\54\OWCP Standards for Determining Coal Miners' Total Disability or
Death Due to Pneumoconiosis, 20 C.F.R. Sec. 718.106.
\55\Chris Hamby et al., Johns Hopkins Medical Unit Rarely Finds
Black Lung, Helping Coal Industry Defeat Miners' Claims, in Ctr. for
Pub. Integrity, Breathless and Burdened 40, 55 (2013), https://
s3.amazonaws.com/iw-files/documents/pdfs/
CPI+Breathless+and+Burdened.pdf [hereinafter Breathless and Burdened].
\56\Id. at 46.
---------------------------------------------------------------------------
In the absence of radiological imaging or tissue analysis,
physicians can determine the existence of pneumoconiosis using
their professional judgement. According to federal regulations,
this determination must be ``based on objective medical
evidence such as blood-gas studies, electrocardiograms,
pulmonary function studies, physical performance tests,
physical examination, and medical and work histories.''\57\
---------------------------------------------------------------------------
\57\OWCP Standards for Determining Coal Miners' Total Disability or
Death Due to Pneumoconiosis, 20 C.F.R. Sec. 718.202.
---------------------------------------------------------------------------
Evolving Diagnostic Criteria
As science has advanced over time, the criteria used to
diagnose CWP have evolved. As described above, CWP diagnosis is
based on the size, shape, profusion, and location of lung
opacities. Initially, CWP was thought to cause only round scars
located in the upper lungs.\58\ Doctors and scientists now
recognize that CWP can manifest as opacities of other shapes
and in other locations. In a paper published in the American
Thoracic Journal, a group of doctors explains that ``[t]he
spectrum of lung disease associated with coal mine dust
exposure is broader than generally recognized.''\59\
Accordingly, since initial passage of the BLBA, the medical
community has expanded its understanding of how black lung is
expressed on chest X-rays.
---------------------------------------------------------------------------
\58\Chris Hamby, As Experts Recognize New Form of Black Lung, Coal
Industry Follows Familiar Pattern of Denial, in Breathless and
Burdened, supra note 55, at 72, 80.
\59\Id. at 86.
---------------------------------------------------------------------------
First, not all of the signs of black lung will show up on
an X-ray in the upper section of the lungs. A 2012 study using
data from over 2,000 underground coal miners in the United
States found that small opacities were approximately equally
distributed throughout the lung zones.\60\ Based on this
evidence, researchers concluded that, ``[a]lthough conventional
teaching has been that the radiographic finding of upper lung
zone--predominant small rounded opacities is the sine qua non
of CWP, there is surprisingly little published evidence to
support this assertion.''\61\ Rather, it is possible that coal
miners suffering from CWP will have X-rays showing opacities in
any section of the lung.\62\
---------------------------------------------------------------------------
\60\A. Scott Laney & Edward L. Petsonk, Small Pneumoconiotic
Opacities on U.S. Coal Worker Surveillance Chest Radiographs Are Not
Predominantly in the Upper Lung Zones, 55 Am. J. Indus. Med. 793
(2012).
\61\Petsonk et al., supra note 50, at 3.
\62\Id.
---------------------------------------------------------------------------
Second, not all CWP opacities are perfectly rounded. With
regard to the previously held belief that round opacities were
necessary to diagnose CWP, NIOSH epidemiologist Scott Laney
observes that ``the scientific foundation for this expectation
is unclear.''\63\ Evidence now suggests that opacities from CWP
can be rounded or irregular in shape. A 2012 study found that
small opacities were classified as mostly irregular in 37.9
percent of miners with CWP.\64\ This evidence indicates that
reserving a CWP diagnosis only for perfectly rounded opacities
is too restrictive and not aligned with the scientific
evidence.
---------------------------------------------------------------------------
\63\Laney & Petsonk, supra note 60.
\64\Id.
---------------------------------------------------------------------------
For claimants whose radiological evidence is consistent
with this developing body of science but not within the
definition tying presumptions to the outdated scientific views,
benefits are not foreclosed. Absent the ability to cite the
presumptions, however, these claimants must still prove that
mining employment caused the impairment and overcome the
rebuttals of operators and their experts. The Center for Public
Integrity reviewed such challenges involving non-traditional
presentation of lung scarring and found a familiar pattern of
industry opposition:
In the early 20th century, coal companies and
sympathetic doctors argued that coal dust was harmless
and actually protected miners' lungs from tuberculosis.
Since then, scientific advances have shown that
breathing coal dust can harm different people in
different ways.
One miner might develop the black nodules
characteristic of coal workers' pneumoconiosis, the
classic form of black lung. Another might find the air
sacs in his lungs destroyed--emphysema--or the lining
of his airways irritated and blocked--chronic
bronchitis.
As the effects of coal dust have gained broader
recognition, the industry in each instance eventually
has had to accept the evidence. But, while these fights
about classification have played out, sick miners have
found it difficult, if not impossible, to win benefits.
Today, miners again are facing this strategy of
denial and containment, this time over the [non-
traditional] pattern of scarring. . . . In virtually
all of the more than 380 cases identified by the Center
[from 2000 to 2013], a doctor testifying for the coal
company--or, in many cases, multiple doctors--blamed
some variant of the disease idiopathic pulmonary
fibrosis, known as IPF, or a similar illness. . . .
Miners lost more than 60 percent of these cases. Even
when judges awarded benefits, the decision often hinged
on an issue other than recognition of the abnormal
disease appearance as black lung. . . .
In many cases, judges credited coal company experts
and reached medical conclusions that flatly contradict
the views of NIOSH and [the National Institute of
Health]. Judges must rely on whatever evidence a miner
can produce, and finding doctors who can rebut the
vehement assertions of the company's experts can be a
challenge.\65\
---------------------------------------------------------------------------
\65\Hamby, supra note 58, at 76-77.
To address this issue and ensure federal benefits remain
aligned with the best scientific evidence, the Act updates the
BLBA as follows:
Section 102 of the Act amends the criteria
for PMF diagnosis from an opacity ``greater than one
centimeter in diameter'' to ``greater than 1 centimeter
in any direction.'' This change would reduce ambiguity
in the law, as masses in the lungs are not always
formed in the kind of perfectly round circles that the
term ``diameter'' demands. The new language would also
ensure the law conforms with ILO classification
standards, which recognize that opacities can be
``rounded'' or ``irregular''\66\ and are measured by
their ``longest dimension.''\67\
---------------------------------------------------------------------------
\66\ILO Guidelines, supra note 52, at 5.
\67\Id. at 6.
---------------------------------------------------------------------------
Section 102 also addresses a split in the
federal appeals courts on what a claimant must prove
when relying on biopsy or autopsy evidence to invoke
the presumption. In the Fourth Circuit, the claimant
must satisfy an ``equivalency'' requirement, showing
that any pathology evidence of massive lesions would
have appeared on X-ray as large opacities sufficient to
prove complicated pneumoconiosis.\68\ The Tenth and
Eleventh Circuits have rejected this equivalency
requirement and held that pathology evidence of massive
lesions, standing alone, is sufficient to invoke the
presumption.\69\ This section clarifies that pathology
evidence can be interpreted directly, without regard to
how it may have appeared in a radiographic image.
---------------------------------------------------------------------------
\68\Eastern Associated Coal Corp. v. Dir., Off. of Workers' Comp.
Progs., 220 F.3d 250 (2000).
\69\Bridger Coal Co. v. Dir., Off. of Workers' Comp. Progs., 669
F.3d 1183, 1192-94 (10th Cir. 2012); Pittsburg & Midway Coal Mining Co.
v. Dir., Off. of Workers' Comp. Progs., 508 F.3d 975, 987 n.7 (11th
Cir. 2007).
---------------------------------------------------------------------------
Section 102 also updates the relevant
terminology by introducing the terms ``complicated
pneumoconiosis'' and ``progressive massive fibrosis''
to more clearly define the disease that will invoke the
presumption and strikes the outmoded term
``roentogram.''
FEDERAL BLACK LUNG BENEFITS ARE A LIFELINE FOR MINERS AND THEIR
FAMILIES
The black lung benefits program was created in 1969 as a
workers' compensation program originally administered by the
Social Security Administration to benefit miners totally
disabled by black lung disease.\70\ Three years later, the
Black Lung Benefits Act of 1972\71\ extended these benefits to
surviving dependent family members and established a
compensation program administered by DOL. The miner's last
employer is generally liable for the claim, but in such cases
when a miner's employer is insolvent, that miner is compensated
from the Trust Fund.
---------------------------------------------------------------------------
\70\Federal Coal Mine Health and Safety Act of 1969, Pub. L. No.
91-173, Title IV.
\71\Black Lung Benefits Act of 1972, Pub. L. No. 92-303.
---------------------------------------------------------------------------
In addition to coverage of qualified medical expenses, the
BLBA provides for monthly cash payments set at 37.5 percent of
the base salary of a federal employee at level GS-2, Step
1.\72\ The level increases for beneficiaries with dependents.
---------------------------------------------------------------------------
\72\BLBA Sec. 412(a) (30 U.S.C. Sec. 922(a)).
---------------------------------------------------------------------------
Although modest, these benefits are a vital lifeline for
miners and their family members. The benefits are available
only to miners with total disability from black lung disease
arising from their employment in or around the nation's coal
mines,\73\ and so miners are generally prohibited from
receiving black lung benefits while employed in coal
mining.\74\ Miners therefore rely on these payments to
permanently leave the mines,\75\ cover their medical
expenses,\76\ and modestly support themselves and their
families.
---------------------------------------------------------------------------
\73\Id. Sec. Sec. 411(a) (30 U.S.C. Sec. 921(a)), 412(a)(1) (30
U.S.C. Sec. 922(a)(1)).
\74\Id. Sec. 413(d) (30 U.S.C. Sec. 923(d)).
\75\See, e.g., Coal Miners' Struggle for Justice: How Unethical
Legal and Medical Practices Stack the Deck Against Black Lung
Claimants: Hearing Before the Subcomm. on Emp. & Workplace Safety of
the S. Comm. on Health, Educ., Lab. & Pensions, 113th Cong. 27-28
(2014) [hereinafter Struggle for Justice] (testimony of claimant
attorney John Cline) (discussing the example of client Gary Fox who
continued working in the mines and breathing dust for several years
even after a serious medical issue because the responsible operator's
attorneys suppressed claim-supporting evidence and blocked access to
the benefits that could have supported him and his family).
\76\Gov't Accountability Off., GAO-18-351, Black Lung Benefits
Program: Options for Improving Trust Fund Finances 4 (May 30, 2018),
https://www.gao.gov/assets/gao-18-351.pdf (``DOL estimates that the
average annual cost for medical treatment in fiscal year 2018 was
approximately $9,667 per miner.'').
---------------------------------------------------------------------------
MINERS AND THEIR FAMILIES FACE CHALLENGES IN ATTEMPTING TO ACCESS BLACK
LUNG BENEFITS
Actually receiving these benefits is typically not an easy
task. Governmental and journalistic investigations have
identified numerous impediments to miners' and their survivors'
ability to obtain black lung benefits, including the following:
challenges in obtaining legal representation and
developing medical evidence to support a miner's claim;
obstacles to fair adjudication of claims because
of dubious strategies employed by coal operators' lawyers and
experts; and
bureaucratic delays in the processing of claims
applications.
Access to Counsel
The black lung benefits adjudication process is an
adversarial system. An adversarial system only works to deliver
justice, however, when both parties to the dispute have an
equal opportunity to participate.\77\
---------------------------------------------------------------------------
\77\Protecting America's Workers: Reviewing Mine Safety Policies
with Stakeholders: Hearing Before the H. Comm. on Educ. & the
Workforce, 114th Cong. 34 (2015) [hereinafter Protecting America's
Workers] (statement of Stephen A. Sanders, Appalachian Citizens Law
Center).
---------------------------------------------------------------------------
A 2009 GAO report about the black lung program found that
securing representation is a significant challenge for many
black lung claimants and that ``claimants'' lack of
representation, particularly in the early stages of a claim,''
is ``a significant barrier to successful claims.''\78\ DOL's
Office of Administrative Law Judges (OALJ) confirmed ``that few
attorneys will represent black lung claimants and that lack of
legal representation limits OALJ's ability to process cases
quickly.''\79\
---------------------------------------------------------------------------
\78\Gov't Accountability Off., GAO-10-7, Black Lung Benefits
Program: Administrative and Structural Changes Could Improve Miners'
Ability to Pursue Claims 26 (2009).
\79\Id.
---------------------------------------------------------------------------
DOL data bear this out. In the last 10 years, most
claimants have lacked attorney representation at the District
Director level. The rate of attorney representation has
fluctuated from a low of 25 percent in 2013 to a high of 47
percent in 2019.\80\ Although lay representation has increased
at the District Director level in recent years following an
increase in funding for black lung clinics,\81\ the adversarial
nature of the proceedings before an ALJ or the Benefits Review
Board--DOL's administrative board hearing appeals from ALJ
decisions--usually merits attorney representation.
---------------------------------------------------------------------------
\80\Black Lung Program Statistics: Claims With Attorney or Lay
Representation at the District Director Level, Off. of Workers' Comp.
Programs, https://www.dol.gov/agencies/owcp/dcmwc/statistics/
AttorneyAndLayRepresentationOfClaimants (last visited June 23, 2022).
\81\Id. See also A Reward for Representation: Washington Woman
Honored for Her Work Helping Black Lung Disease Claimants, Observer-
Reporter (Washington, PA Dec. 7, 2016), https://observer-reporter.com/
business/a-reward-for-representation/article_04762196-24ac-5d78-ad5c-
213
7b2d788f4.html.
---------------------------------------------------------------------------
An attorney with the Appalachian Citizens Law Center
(ACLC), which represents coal miners and their families on
issues of black lung and mine safety, testified in a 2015
hearing before the Subcommittee on Workforce Protections about
his observations of this problem in the field. ``Too often
miners do not have legal representation and, being disabled and
not working, do not have the financial ability to pay for
sophisticated medical testing to support their claim that they
have been disabled due to black lung,'' said the ACLC's Stephen
Sanders.\82\ During the hearing, he was questioned about this
issue:
---------------------------------------------------------------------------
\82\Protecting America's Workers, supra note 77, at 34.
Mr. Scott. Mr. Sanders, the black lung benefits
program is an adversarial system. In your testimony you
talk about the fact that workers are not well
represented. What specific proposals would you have to
level the playing field so that workers could be better
represented in this adversarial proceeding?
Mr. Sanders. What I think are the problems are partly
that attorneys are deterred by the complexity, the need
to develop sophisticated medical evidence with a client
who has no resources to pay for that, and the attorney
cannot be paid for his services by his client. Under
the federal black lung program, the attorney that
represents the claimant gets a fee if the claimant is
awarded benefits and if the award is upheld through
appeals so the award is final.
In many of these cases, I would say the average is at
least four years before you get to that point, and in
many of the cases, they go on longer.
There was an article recently in the Charleston
Gazette about a case that went on for 21 years. The
attorney representing the miner in that claim gets no
compensation unless the miner wins and the award is
upheld.
The Black Lung Benefits Improvement Act create[s] a
way that an attorney could get a partial fee through
the Trust Fund if they are successful at various stages
in the proceedings, and then that payment from the
Black Lung Disability Trust Fund would eventually be
paid back by the operator if the award is upheld. It
also provides for a payment for medical expenses
incurred by the claimant to develop the kind of
sophisticated evidence they need to prove their
case.\83\
---------------------------------------------------------------------------
\83\ Id. at 72.
The reasons for lack of representation were also explained
---------------------------------------------------------------------------
in GAO's 2009 report:
[A]ttorneys are not inclined to take claimants' cases
due to a low probability of success. . . . Other
disincentives DOL officials and claimant attorneys
cited are that the process can be lengthy and costly.
For example, one attorney told us that it has taken as
long as 15 years from the start of a black lung case to
receive compensation for working on it. Among the
significant legal costs that claimant attorneys said
they incur with black lung cases is the time spent
preparing legal briefs and expenses associated with
evidence development, such as preparing medical
experts' reports. Because claimants lack financial
resources for evidence development and DOL's payment of
claimant attorneys' fees is contingent on the success
of cases, claimant attorneys bear much of the legal
costs during the litigation of claimants' cases. In
BLBA cases, a claimant may not be charged a fee by an
attorney unless black lung benefits are awarded.\84\
---------------------------------------------------------------------------
\84\ Gov't Accountability Off., supra note 78, at 26.
Accordingly, section 106 of the Act authorizes an
Attorneys' Fees and Medical Expenses Payment Program. Under
this section, DOL is directed to establish a program which
advances a portion of miners' attorneys' legal fees up to
$1,500 at the District Director level and up to $3,000 at the
ALJ level for a total of up to $4,500, provided that the
claimant prevails at each level. In addition, attorneys may
seek reimbursement of up to $1,500 for medical costs at each
level, for a total of no more than $3,000, provided that the
claimant prevails at each level. This provision applies only
where there is a contested claim for benefits for which a final
order has not been entered within two years of the filing of
the claim.
The legal fees and medical costs under this section would
initially be paid from the Trust Fund; however, if the claimant
ultimately prevails, the responsible coal operator would be
required to reimburse the Trust Fund for the legal fees and
costs that were paid under this section and, consistent with
existing law, would be required to pay any additional
attorneys' fees and allowable costs that exceed the amount that
was already paid from the Trust Fund. Any payment for
attorneys' fees or medical expenses made by DOL under this
section cannot be recouped from the claimant or the claimant's
attorney in the event that a claim approved at a lower level is
subsequently reversed.
The Attorneys' Fees and Medical Expenses Payment Program
helps to level the playing field by countering some of the
financial disincentives GAO identified for attorneys accepting
coal miners' black lung claims, and it will be impactful in
many of the contested cases that require far more than two
years between the filing of the claim and a final order for
benefits.
The net cost of this provision to the Trust Fund is likely
to be very low. The incentive provided by this provision should
increase the number of claimants obtaining representation at
the District Director level. Additionally, the medical evidence
provision discussed below is likely to decrease the number of
cases appealed every year to OALJ\85\ and, therefore, increase
the likelihood that the responsible operator will reimburse the
Trust Fund for these fees. DOL, in fact, estimates that the net
cost to the Trust Fund will be less than $1 million
annually.\86\ Accordingly, when Rep. Keller offered an
amendment in the markup to strike this provision, arguing on
the basis of the annual total outlay (before these other
factors reduce the likely actual net cost), the Committee
rejected the amendment by a vote of 22 Yeas and 27 Nays.
---------------------------------------------------------------------------
\85\ See text accompanying notes 90-92 infra.
\86\ Email from Constance M. Christakos, Off. of Cong. &
Intergovt'l Affs., U.S. Dep't of Lab. (May 17, 2022).
---------------------------------------------------------------------------
Access to Medical Evidence
Miners' challenges in obtaining counsel are intertwined
with their difficulty in developing the medical evidence needed
to support a claim. This issue is particularly acute at the
earliest stages of the claims process. Both GAO and the DOL
Inspector General (DOL-IG) have urged DOL to assist claimants
in securing better quality medical evidence, because this
speeds cases, reduces appeals, and improves fairness.\87\
---------------------------------------------------------------------------
\87\ See Off. of Inspector Gen., U.S. Dep't of Lab., 05-15-001-50-
598, Procedural Changes Could Reduce the Time Required to Adjudicate
Federal Black Lung Benefit Claims 29 (2015). See also generally Gov't
Acct. Off., supra note 78.
---------------------------------------------------------------------------
Section 413(b) of the BLBA currently requires DOL to give
each miner the opportunity to substantiate a claim for benefits
with a complete pulmonary evaluation.\88\ DOL's District
Director administers this requirement by scheduling a medical
examination with a physician the miner chooses from a DOL-
maintained list (413(b) Provider). Based on the 413(b) exam
results, the District Director renders an initial claim
determination, which can be challenged. At that point, the
responsible operator (or the operator's insurer) and the
claimant may then submit their own medical evidence, which the
District Director considers along with the 413(b) exam results
before entering a proposed decision and order (PDO) regarding
entitlement to benefits.
---------------------------------------------------------------------------
\88\ 30 U.S.C. Sec. 923(b).
---------------------------------------------------------------------------
If the District Director denies the claim, the miner may
request a hearing before an ALJ. If, instead, the District
Director awards benefits and the liable coal mine operator
requests a hearing, the miner receives interim benefit payments
from the Trust Fund until the ALJ resolves the case. Those
interim payments are deemed overpayments if the claim is
overturned before the ALJ or in later proceedings. Thus, it is
important that the District Director's decision be accurate and
defensible.
In 2014, DOL initiated the Black Lung 413(b) Pilot Project
(Pilot Project) to strengthen the quality of benefit decisions
in a subset of claims involving those miners who met the
criteria for the 15-year presumption under the BLBA.\89\ The
Pilot Project called for DOL to secure a supplemental medical
opinion from the 413(b) Provider after evidence contrary to a
preliminary finding supporting benefits entitlement was
submitted for consideration by the responsible operator. Prior
to this Pilot Project, DOL provided only one medical opinion to
miners, the complete pulmonary evaluation the statute
guarantees to each miner who applies for benefits.
---------------------------------------------------------------------------
\89\Off. of Workers' Comp. Programs, U.S. Dep't of Lab., BLBA Bull.
No. 14-5, Creating Stronger PDOs in Living Miner Cases Where the 15-
Year Presumption May Apply (Feb. 24, 2014) [hereinafter OWCP Pilot
Project Bulletin].
---------------------------------------------------------------------------
Expert evaluators from the University of Illinois at
Chicago's School of Public Health (UIC Evaluators) reviewed the
Pilot Project and concluded in a May 2016 report that the Pilot
Project improved the quality of medical evidence. The UIC
Evaluators found that the Pilot Project also reduced the
percentage of decisions which led to requests for hearings on
appeal from 81 percent to 73 percent.\90\
---------------------------------------------------------------------------
\90\Robert Cohen, Leonard Go & Sithembile Mabila-Abduba, U. Ill.-
Chi. Sch. of Pub. Health, Black Lung Pilot Evaluation Study Final
Report (May 4, 2016) (commissioned by Chief Eval. Off., U.S. Dep't of
Lab.).
---------------------------------------------------------------------------
Among other things, the UIC Evaluators concluded that the
supplemental medical examination corrected an ``asymmetry of
information,'' in which the responsible operators had access to
both the medical evidence produced by the 413(b) Provider and
their own evidence, whereas the 413(b) Providers did not have
access to both sets of information at the time of their
examinations. In addition, the 413(b) Provider opinion was
systematically discounted because it was never as recent as the
medical evidence prepared by the responsible operator. The UIC
Evaluators concluded, ``It is likely that the rebuttal of
[responsible operator] evidence by the 413(b) [P]rovider
balanced the weight of the opinions provided by the physicians
in the claim, primarily by removing the bias that a more recent
[operator] provider's opinion should carry more weight.''\91\
---------------------------------------------------------------------------
\91\Id. at 3.
---------------------------------------------------------------------------
The Pilot Project resulted in some findings of entitlement
that would otherwise have been denied, as well as some cases
for which an initial approval was subsequently overturned.
Overall, however, the UIC Evaluators found that ``[c]ases
evaluated ... had a higher rate of benefits entitlement than
similar cases without a supplemental medical review.''\92\
---------------------------------------------------------------------------
\92\Id. at 18.
---------------------------------------------------------------------------
DOL concluded, ``based on an examination of data
accumulated over five years about the success of this pilot
program, . . . that the supplemental reports are effective at
strengthening and improving the PDO,'' and the initiative was
made permanent.\93\ DOL's current practice is to make these
supplemental reviews standard procedure for cases in which (1)
the miner had 15 years of qualifying coal mine employment, (2)
the initial 413(b) examination indicated the miner was entitled
to benefits, (3) the parties received a preliminary finding of
entitlement to benefits in the Schedule for Submission of
Additional Evidence (SSAE), and (4) the party opposing
entitlement has submitted evidence that appears contrary to the
claims examiner's proposed entitlement finding.\94\
---------------------------------------------------------------------------
\93\Off. of Workers' Comp. Programs, U.S. Dep't of Lab., Annual
Report to Congress 26 (2020), https://www.dol.gov/sites/dolgov/files/
OWCP/FY2020OWCPAnnualReporttoCongress. pdf.
\94\OWCP Pilot Project Bulletin, supra note 89.
---------------------------------------------------------------------------
In light of the track record of this program and the larger
problem of claimant access to expert medical evidence, the Act
makes several important reforms:
Section 103 of the Act codifies the
supplemental evidence program and expands it by
covering not only those who may meet the qualification
for a 15-year presumption but also other living miners
regardless of the number of years of coal mine
experience.
Section 103 of the Act also authorizes the
U.S. Secretary of Labor (Secretary) to cover the cost
of a CT scan in certain cases, where needed to diagnose
larger lesions that could indicate the presence of
complicated pneumoconiosis or PMF. These lesions may be
missed by conventional chest radiography due to
obscuring shadows from the ribs, clavicle, or large
vessels or a high profusion of simple pneumoconiosis
(ILO category 2/1\95\ or greater). Therefore, in order
to determine if a miner has complicated pneumoconiosis
but a conventional lung X-ray fails to provide a
definitive image, the Secretary is authorized under
section 103 to provide a high-quality, low-dose or
standard CT scan if a chest radiograph reveals advanced
pneumoconiosis (ILO category 2/1 or greater) or a
coalescence of small opacities. Studies that have
compared conventional chest radiography to CT scans
indicate that, when diagnosing complicated
pneumoconiosis, the CT scan is significantly more
sensitive than a chest radiograph.\96\
---------------------------------------------------------------------------
\95\The ILO classification of radiographs is rendered in category/
subcategory format. The categories are numbered from 0 to 3 in order of
increasing presence and profusion of opacities, and for each category
there are three possible subcategories. The classifications refer back
to standard radiographic images that are exemplary of each category and
are labeled 0/0, 1/1, 2/2, and 3/3. Any subcategory designation with a
number or symbol different from the category number indicates a degree
of variation from the standard image for the category. The 2/1
assessment ``refers to a radiograph with profusion of small opacities
judged to be similar in appearance to that depicted on a subcategory 2/
2 standard radiograph, but category1 was seriously considered as an
alternative before deciding to classify it as category 2.'' ILO
Guidelines, supra note 52, at 3-4.
\96\Ahmet Savranlar et al., Comparison of Chest Radiography and
High-Resolution Computed Tomography Findings in Early and Low-Grade
Coal Worker's Pneumoconiosis, 51 Eur. J. Radiol. 175 (2004); Kun-Il Kim
et al., Imaging of Occupational Lung Disease, 21 RadioGraphics 1371
(2001); C. Martinez Gonzalez et al., Valor de la Tomografia
Computarizada en el Diagnostico de Neumoconiosis Complicada de Mineros
del Carbon [Value of Computerized Tomography in the Diagnosis of
Complicated Pneumoconiosis in Coal Miners], 33 Arch. Bronchoneumol. 12
(1997); Martine Remy-Jardine et al., Computed Tomographic Evaluation of
Silicosis and Coal Workers' Pneumoconiosis, 30 Radiol. Clinics No. Am.
1155 (1992).
---------------------------------------------------------------------------
Section 103 also codifies the Secretary's
practice of creating and maintaining a list of
qualified physicians to perform pulmonary examinations
of coal miners and mandates quality assurance for the
list by requiring that the Secretary pre-screen
physicians for adverse professional actions involving
medical licensure, certifications, hospital privileges,
or professional societies. This section precludes the
use of physicians from the list who have a potential or
actual conflict of interest through current or recent
employment or contractual arrangements with a private
party opposing an individual's claim unless the
claimant knowingly waives such conflict. The Secretary
is directed to update the list annually by reviewing
the suitability of qualified physicians to remain or be
added to the list and assessing any potential conflicts
of interest.
Section 106 establishes the Attorneys' Fees
and Medical Expenses Payment Program discussed above,
which, among other things, allows miners' attorneys to
seek reimbursement of up to $1,500 for medical costs at
the District Director and ALJ level of claim review,
for a total of no more than $3,000, provided that the
claimant prevails at each level. This provision applies
only where there is a claim for benefits that is
contested and for which a final order has not been
entered within two years of the filing of the claim.
Obstacles to Fair Adjudication
While miners and their families struggle to retain lawyers
and medical experts, coal operators challenging benefit
applications maintain their own cadre of specialists, who have
at times added to the challenges of obtaining benefits.
For example, Pulitzer Prize-winning reporting by the Center
for Public Integrity revealed that the Johns Hopkins Medical
Institutions had for decades operated a radiology unit staffed
by ``perhaps the most sought-after and prolific readers of
chest films on behalf of coal companies seeking to defeat
miners'' claims.''\97\ Various radiologists worked in this unit
over the years producing reports ``almost unwaveringly negative
for black lung,'' but one expert in particular, Dr. Paul
Wheeler, was ``the leader and most productive reader for
decades.''\98\ The Center found that, in more than 3,400 X-ray
readings involving more than 1,500 cases, Dr. Wheeler had never
once interpreted an X-ray as positive for complicated
pneumoconiosis, preferring instead to apply his own
idiosyncratic criteria which were ``at odds with positions
taken by government research agencies, textbooks, peer-reviewed
scientific literature, and the opinions of many doctors who
specialize in detecting the disease, including the chair of the
American College of Radiology's task force on black lung.''\99\
---------------------------------------------------------------------------
\97\Chris Hamby et al., Johns Hopkins Medical Unit Rarely Finds
Black Lung, Helping Coal Industry Defeat Miners' Claims, Ctr. for Pub.
Integrity (Oct. 30, 2013), https://publicintegrity.org/environment/
johns-hopkins-medical-unit-rarely-finds-black-lung-helping-coal-
industry-defeat-miners-claims/.
\98\Id.
\99\Id.
---------------------------------------------------------------------------
Although Johns Hopkins shut down this program two days
after the Center and ABC News exposed Dr. Wheeler's record\100\
and DOL issued a bulletin instructing staff not to credit any
negative reading by Dr. Wheeler,\101\ the damage had been done.
In the span of 13 years alone, miners lost more than 800 cases
in which doctors found severe black lung while Dr. Wheeler
offered a contrary opinion.\102\ Ultimately, DOL notified
approximately 1,100 miners that their claims may have been
wrongfully denied because of Dr. Wheeler's involvement.\103\
---------------------------------------------------------------------------
\100\Matthew Mosk & Randy Kreider, Amid Controversy, Johns Hopkins
Quietly Drops Black Lung Program, ABC News, Sept. 30, 2015, https://
abcnews.go.com/US/amid-controversy-johns-hopkins-quietly-drops-black-
lung/story?id=34161753; Howard Berkes, Johns Hopkins Halts, Reviews
Black Lung Program, NPR, Nov. 4, 2013, https://www.npr.org/sections/
thetwo-way/2013/11/04/243029509/johns-hopkins-halts-reviews-black-lung-
program; Chris Hamby et al., Johns Hopkins Suspends Black Lung Program
After Center-ABC Investigation, Ctr. for Pub. Integrity (Nov. 1, 2013),
https://publicintegrity.org/environment/johns-hopkins-suspends-black-
lung-program-after-center-abc-investigation/.
\101\Michael A. Chance, Off. of Workers' Comp. Programs, U.S. Dep't
of Lab., BLBA Bull. No. 14-09, Weighing Chest X-ray Evidence that
Includes a Negative Reading by Dr. Paul Wheeler (June 2, 2014), https:/
/www.dol.gov/sites/dolgov/files/owcp/dcmwc/blba/indexes/BL14.09OCR.pdf.
\102\Hamby et al., supra note 95.
\103\Chris Hamby, Black Lung Claims by 1,100 Coal Miners May Have
Been Wrongly Denied, Ctr. for Pub. Integrity, July 22, 2014, https://
publicintegrity.org/environment/black-lung-claims-by-1100-coal-miners-
may-have-been-wrongly-denied/.
---------------------------------------------------------------------------
DOL permitted miners whose claims had been denied to submit
new claims, but any survivors in the same situation whose
claims had been denied more than a year before the Center's
reporting were barred under DOL regulations from filing a new
claim.\104\ Solicitor of Labor Patricia Smith explained in a
2014 Senate hearing that this injustice was effectively
required by the BLBA:
---------------------------------------------------------------------------
\104\Q&As--Impact of OWCP Bulletin 14-09 (Addressing Dr. Wheeler X-
ray Readings) on Previously Denied Claims, Off. of Workers' Comp.
Programs, https://www.dol.gov/agencies/owcp/negativechestxrays (last
visited Apr. 5, 2022).
Sen. Casey. Can you describe how the process
for resubmitting a previously denied claim differs
based on whether or not it falls within the 1-year time
limit?
Ms. Smith. . . . There are two
possibilities. If a miner has been denied a claim
within a year, he may move to reopen that claim on the
basis of there's a mistake or his condition has
changed. . . . If an award is granted or denied, it is
on the basis of the current claim.
On the other hand, after 1 year, a miner may
file a claim for new benefits. It is a new claim. It is
a new time period. That's because . . . black lung
disease can be progressive and latent even after
there's been a cessation of exposure to coal mine dust.
What a miner must prove in that situation as
a threshold matter is that there has been a change in
some condition of eligibility since the last claim. If
they can't prove that as a threshold matter, the claim
is denied. If then they can prove that the change in
condition has made it clear that they have black lung
disease and it's totally disabling, they would be able
to get an award of benefits.
But that award of benefits does not go back
to the previous time. It only goes back from when that
new claim has been made. Again, this is because the
black lung can be progressive and latent. So, if there
are changes in conditions and now the miner is eligible
when they may not have been eligible before, we don't
want to bar them forever when they have become
eligible.
Sen. Casey. You're talking about the
situations where you have a new claim.
Ms. Smith. Right. That's a new claim. It's
not a reopening of an old claim. It does not go back to
the time period of the old claim. Once the old claim
has been denied for over a year, it's barred by res
judicata. You cannot reopen that claim. But if you can
prove that you have a change in your condition and you
are now eligible, you can file a new claim for a new
time period.\105\
---------------------------------------------------------------------------
\105\Struggle for Justice, supra note 75, at 19-20.
In other words, although miners who had lived long enough
to see Dr. Wheeler discredited and could show that their
disease had progressed further were able to file new claims
from that point forward, they were not allowed to seek
retroactive benefits covering the period they had lost thanks
to Dr. Wheeler. Widows and other surviving family members
lacked even that option.
It is likely that there are other Dr. Wheelers. The UIC
Evaluators reviewing DOL's medical evidence Pilot Project
uncovered a troubling bias in some of the medical documentation
submitted by operators. In a sample of cases prior to the Pilot
Project, the UIC Evaluators found that there were ``[i]nstances
of atypical and non-standard interpretations of medical
evidence by Responsible Operators, questions of technical
quality and other inconsistences that represent potential
instances in which a supplemental opinion from the Pilot
Project could have affected the outcome of the claim.''\106\
---------------------------------------------------------------------------
\106\Cohen et al., supra note 90, at 3.
---------------------------------------------------------------------------
Moreover, a new study of black lung claims filed from 2000
to 2013 found that doctors hired by coal companies are much
less likely to diagnose black lung disease in miners' X-rays
compared to doctors hired by miners and independent doctors.
Most B-readers are hired at some point by the government and by
either miners or operators, but the researchers found that any
B-readers ever hired by coal operators read chest X-rays as
negative for pneumoconiosis 85 percent of the time, much more
often than any B-readers ever hired by a miner (51.3 percent)
or those exclusively hired by DOL (63.2 percent).\107\ The
researchers identified 55 operator-hired B-readers who provided
negative readings in more than 99 percent of their
assignments.\108\ ``Although the radiograph data ended in
2013,'' the researchers point out, ``nearly all the physicians
are still classifying radiographs today, and many of these
cases are still pending.''\109\
---------------------------------------------------------------------------
\107\Lee S. Friedman et al., Association Between Financial
Conflicts of Interest and International Labor Office Classifications
for Black Lung Disease, 18 Annals of Am. Thoracic Soc'y 1633 (2021).
\108\Id. at 1638.
\109\Id. at 1639.
---------------------------------------------------------------------------
In addition to these experts, mine operators are also armed
with attorneys who have withheld evidence or presented
incomplete evidence to courts in miner compensation cases.\110\
The Center reviewed 15 cases by one such firm, Jackson Kelly
PLLC, over a period of decades and found that the firm withheld
reports in 11 cases in which its medical experts concluded the
miner had black lung.\111\ For example, the firm suppressed
reports by a leading medical expert that supported a finding of
black lung in the case of a miner who had been fighting the
firm for 28 years. When DOL's Benefits Review Board ordered the
firm to release the reports, the operator represented by
Jackson Kelly abandoned its appeals and the miner finally
received black lung benefits, only to die two years later.\112\
---------------------------------------------------------------------------
\110\Chris Hamby, Coal Industry's Go-To Law Firm Withheld Evidence
of Black Lung, at Expense of Sick Miners, Ctr. for Pub. Integrity (Aug.
6, 2014), https://publicintegrity.org/environ
ment/coal-industrys-go-to-law-firm-withheld-evidence-of-black-lung-at-
expense-of-sick-miners/.
\111\Id.
\112\Id.
---------------------------------------------------------------------------
Accordingly, the Act includes several provisions addressing
these challenges to fair adjudication:
Section 103 requires the Secretary to screen
physicians for conflicts of interest and
professionalism issues as DOL periodically reviews a
list it maintains of physicians qualified to conduct
pulmonary examinations of miners.
Section 104 strengthens criminal penalties
for anyone knowingly and willfully making false
statements or misrepresentations, provides guidelines
for making determinations as to whether attorney
behavior warrants disqualification, and grants ALJs the
authority to issue sanctions when a party fails to
comply with a discovery order. Any attorney found
guilty of this conduct is also permanently disqualified
from representing any party or appearing in any further
black lung benefits proceedings. Although current law
imposes a misdemeanor penalty on persons willfully
making a false statement for the purpose of obtaining a
benefit or payment, it is silent with regard to persons
willfully making a false statement with the purpose of
preventing a claimant from receiving a benefit for
which the claimant would otherwise be eligible.
Section 105 allows claimants both miners and
their survivors to file a new claim for benefits if
such claim has been denied and such decision involved a
chest radiograph that had been negatively interpreted
by a physician with respect to whom the Secretary has
directed that such physician's medical opinions be
given no weight in evaluating a claim of benefits.
Delays in Claim Processing
Another obstacle to swift obtainment of black lung benefits
is that the system itself is riddled with delays.
In a 2014 Senate hearing, longtime claimant attorney John
Cline testified about delays in simply getting an appeal heard:
Finally, I would like to emphasize that massive
delays in the processing of claims, particularly at the
ALJ level, are creating huge problems for claimants. We
have been advised that the caseload at the ALJ level
has nearly doubled since 2004 and the number of ALJs
for both Longshore and Black Lung cases has dropped
from 45 to 36. As a result, the number of days it takes
for an appealed case to be assigned to a judge has
increased from 160 to 429. Put differently, the delay
has gone from a little over 3 months to more than 14
months. And then, it still takes a number of months for
a hearing date to be set and usually a year or more for
the judge to issue a decision. In other words, there is
a virtual log jam at the ALJ level, and because of the
long delay, it is not unusual for the claim to outlive
the miner or the widow.
I cannot emphasize enough that these long delays are
causing huge problems for claimants. If a miner or
widow is denied benefits at the District Director level
but has a valid claim, it will take years for the miner
or widow to prevail with no benefits during the
interim. Or, if a claimant is awarded benefits by the
District Director, the miner or widow has to live with
the uncertainty that those benefits could be overturned
on appeal, which means that the miner or widow may have
to repay all the benefits he or she received while the
award was tied up in litigation.\113\
---------------------------------------------------------------------------
\113\Struggle for Justice, supra note 75, at 31-32 (emphasis
added).
A funding increase for OALJ starting in Fiscal Year 2015
enabled DOL to slowly decrease this delay, so that a 46-month
backlog in Fiscal Year 2014 reduced to a 22-month backlog in
Fiscal Year 2018.\114\ DOL most recently projected that the
backlog will have inched down to 21 months in Fiscal Year
2022.\115\ Of course, 21 months is still a significant delay
for benefits that are so important to miners and their
families.
---------------------------------------------------------------------------
\114\U.S. Dep't of Lab., FY 2023 Congressional Budget
Justification: Departmental Management 70 (2022).
\115\Id. at 71.
---------------------------------------------------------------------------
Another source of preventable delays is the process for
verification of employment. According to the DOL-IG, DOL still
uses a manual, paper-based system to request the employment
records from the Social Security Administration (SSA) ``because
it does not have the statutory authority to directly access
SSA's database.''\116\ That outdated mode of communication adds
time to the black lung claims process, according to the DOL-IG:
---------------------------------------------------------------------------
\116\Off. of Inspector Gen, U.S. Dep't of Lab., 05-15-001-50-598,
Procedural Changes Could Reduce the Time Required to Adjudicate Federal
Black Lung Benefit Claims 11 (Apr. 9, 2015), https://www.oig.dol.gov/
public/reports/oa/2015/05-15-001-50-598.pdf.
[I]n FY 2014 it took an average of 58 days to obtain
miners' earnings records from SSA. OWCP relied on two
sources to identify operators who would eventually be
responsible for miners' black lung benefits: 1) miners,
who named the last operator who employed them for at
least a year, and 2) the [SSA], which provided OWCP
with miners' earnings records.
The accuracy of each miner's employment history is of
utmost importance in making accurate liability and
entitlement findings. . . . In addition, the earnings
record is necessary to determine the length of a
miner's Coal Mine Employment (CME) and therefore,
whether he or she may take advantage of certain
rebuttable presumptions that assist in establishing
entitlement to benefits. . . .
Because paper forms have to be mailed back and forth
between DOL and SSA, each iteration of this process
introduces delays and adds additional time when SSA
rejects and returns forms for minor clerical
errors.\117\
---------------------------------------------------------------------------
\117\Id.
The DOL-IG concluded that ``[o]nline access to SSA earnings
records would simplify and speed up the process of verifying
claimants'' employment histories.''\118\
---------------------------------------------------------------------------
\118\Id.
---------------------------------------------------------------------------
As John Cline testified, these delays not only prevent
miners and their families from obtaining benefits when they
need them most but also compound their challenges in obtaining
counsel:
These long delays also make it much more difficult
for claimants to obtain representation. It is
completely unrealistic to expect that lawyers who only
get paid if the claimant prevails will want to
represent miners or widows if they also have to wait
years to be paid an hourly rate for their time and will
not be paid at all if the claimant does not
prevail.\119\
---------------------------------------------------------------------------
\119\Struggle for Justice, supra note 75, at 32.
Accordingly, the Act addresses these sources of delay:
Section 108 of the Act requires the SSA to
provide DOL with access to miners' employment information in
electronic form.
Section 121 requires the Secretary, within 90
days, to submit to Congress a comprehensive strategy to reduce
the backlog of cases pending before OALJ. The strategy must
identify, among other things, the resources necessary to ensure
that claims brought under the BLBA are decided within 12 months
from the date they are received by the OALJ.
PREMATURE SETTLEMENT WOULD TRADE SWIFT RESOLUTION FOR INADEQUATE
BENEFITS
These delays and barriers are significant obstacles to
miners and their survivors, but authorizing settlements in the
BLBA would not ultimately be helpful.
So many states have amended their workers' compensation
laws in the last couple of decades to allow for ``compromise-
and-release'' settlements that the practice is now
``ubiquitous.''\120\ Such settlements cut off future benefits,
including, often, future medical costs.\121\ Settlements are
associated with problems ranging from ``increasingly careless
attorney practices'' to ``the alarming practice of seriously
injured, medically unstable workers releasing their employers
of responsibility for medical treatment.''\122\ Because of the
risk that low-ball settlements can result in a shifting of
costs onto Medicare,\123\ the Center for Medicare and Medicaid
Services conducts regular oversight of workers' compensation
settlements pursuant to the Medicare Secondary Payor Act\124\
``to assure that Medicare remains the secondary payor to the
workers'' compensation carrier and is not paying Medicare-
covered medical expenses that should have been paid by the
workers' compensation carrier or out of the settlement proceeds
allocated for medical care.''\125\
---------------------------------------------------------------------------
\120\Emily A. Spieler, (Re)Assessing the Grand Bargain:
Compensation for Work Injuries in the United States, 1900-2017, 69
Rutgers U.L. Rev. 891, 946 (2017). For more background, see David B.
Torrey, Compromise Settlements Under State Workers' Compensation Acts:
Law, Policy, Practice, and Ten Years of the Pennsylvania Experience, 16
Widener L.J. 199 (2007).
\121\Spieler, supra note 120, at 946.
\122\David B. Torrey, Lump Sum Settlements of Workers' Compensation
Cases: Background and Unanswered Questions Under Section 449 of the
Pennsylvania Act, 72 Penn. Bar. Ass'n Q. 23, 24 (2001).
\123\See also text accompanying notes 152-177 infra.
\124\42 U.S.C. Sec. 1395x et al.
\125\Ann Sandstrom & Michael Kaplan, The Big Picture Approach to
Full and Final Medical Settlements in Workers' Compensation Claims: Why
Relying on a Medicare Set-Aside Is Not Enough, 58 Ariz. Att'y 68
(2022).
---------------------------------------------------------------------------
The experience of workers' compensation settlements in the
states counsels against authorizing settlement under the BLBA.
As discussed earlier, black lung is a progressive disease,
requiring increasing medical care and, inevitably, increasing
medical costs over time. Settlement in federal black lung
claims would certainly shorten the litigation and make costs
more predictable for employers, but it would put miners in the
untenable position of trying to guess how long they will
survive and how much their medical care will cost as the
disease progresses at a time when they are often financially
vulnerable to the offer of a quick fix. Likewise, doctors,
lawyers, and courts could do little more than guesstimate the
rate of progression and life expectancy of an individual miner
and whether a settlement offer would prove to be sufficient
over time.
Moreover, it is not necessarily the case that settlement
would result in swifter delivery of compensation to miners and
their families. The black lung benefits program already
provides that qualifying miners receive interim benefits from
the Trust Fund during the pendency of litigation.\126\
Settlement offers of a seemingly large lump sum or heightened
income payments in exchange for low fixed medical costs may be
tempting for miners and their families at the early stage of
the lengthy claims process, but settlement would likely redound
almost exclusively to the benefit of coal operators and
potentially shift costs onto federal programs such as Medicare
and Medicaid.
---------------------------------------------------------------------------
\126\See, e.g., OWCP Rules for Adjudication of Claims by the
District Director, 20 C.F.R. Sec. 725.420.
---------------------------------------------------------------------------
Accordingly, when the Committee marked up the Act and
considered an amendment offered by Rep. Keller that would have
replaced the Attorneys' Fees and Medical Expenses Payment
Program in section 106 of the Act with a provision to permit
settlement of claims in lieu of full disability benefits, the
Committee voted to defeat the amendment by a vote of 22 ayes
and 27 nays.
BENEFITS ARE VULNERABLE TO POLITICAL CHOICES
Because the monthly cash benefits are, as discussed
earlier, pegged to the federal employees' pay scale,\127\ any
federal pay freeze likewise means that miners and their
surviving dependents do not receive a cost-of-living
adjustment.
---------------------------------------------------------------------------
\127\See text accompanying note 72 supra.
---------------------------------------------------------------------------
In response to budget deficit and political pressures, the
Obama Administration implemented a federal pay freeze in fiscal
years 2011 through 2013 and implemented a pay increase in
fiscal years 2014 and 2015 that was below the statutorily
prescribed general pay increases based on the Employment Cost
Index (ECI).\128\ In 2016, the government reinstated full
increases.\129\ As a result, in 2021, a miner or surviving
dependent received $8,323.20 annually in cash benefits;
however, if the benefit rate been adjusted in accordance with
the Employment Cost Index from 2011 to 2015, the benefit rate
would have been $8,643.85, and the rate for 2022 would be set
at $8,834.01. The chart below demonstrates the difference
between current cash benefit levels and the levels that
beneficiaries would be receiving if the ECI-based pay increases
had been adopted from 2011 to 2015:
---------------------------------------------------------------------------
\128\Barbara L. Schwemle, Cong. Res. Serv., R47033, Federal Pay:
General Schedule (GS) Adjustment Process, and Amounts Provided Since
2010, and Issues for Congress 10, 17-18 (Feb. 17, 2022).
\129\Id.
----------------------------------------------------------------------------------------------------------------
Resulting
Federal Pay Black Lung Benefit if
Year Adjustment Annual ECI ECI Applied
Benefit
----------------------------------------------------------------------------------------------------------------
2011.................................................... 0.00% $7,507.20 0.90% $7,574.76
2012.................................................... 0.00% $7,507.20 1.10% $7,658.09
2013.................................................... 0.00% $7,507.20 1.20% $7,749.98
2014.................................................... 0.30% $7,581.60 1.30% $7,850.73
2015.................................................... 1.00% $7,657.20 1.30% $7,952.79
2016.................................................... 1.00% $7,734.00 1.00% $8,032.32
2017.................................................... 1.00% $7,812.00 1.00% $8,112.64
2018.................................................... 1.40% $7,921.20 1.40% $8,226.22
2019.................................................... 1.40% $8,031.60 1.40% $8,341.39
2020.................................................... 2.60% $8,240.40 2.60% $8,558.26
2021.................................................... 1.00% $8,323.20 1.00% $8,643.85
2022.................................................... 2.20% $8,506.80 2.20% $8,834.01
----------------------------------------------------------------------------------------------------------------
The Social Security Administration and the Office of
Personnel Management both currently use the CPI-W for retiree
benefits cost-of-living adjustments to ensure that the benefits
are not eroded by inflation.\130\ Pinning future black lung
benefit levels to the CPI-W rather than the GS pay increases
will ensure that compensation benefits for miners and their
dependent survivors are not further eroded by inflation or
vulnerable to future political controversies over federal
employees' pay.\131\
---------------------------------------------------------------------------
\130\Cost-of-Living Adjustment (COLA) Information for 2022, Soc.
Sec. Admin., https://www.ssa.gov/cola/ (last visited Apr. 23, 2022).
\131\SSA's 2022 COLA adjustment was 5.9 percent, see id., and the
GS pay scale increased pay by 2.2 percent. Exec. Order No. 14,061, 86
Fed. Reg. 73601 (Dec. 28, 2021). Meanwhile, from December 2020 to
December 2021, consumer prices for all items rose 7.0 percent. See
Consumer Price Index: 2021 in Review, U.S. Bureau of Lab. Stat. (Jan.
14, 2022), https://www.bls.gov/opub/ted/2022/consumer-price-index-2021-
in-review.htm#::text=From%20December%202020%20
to%20December,of%203.9%20percent%20in%202020.
---------------------------------------------------------------------------
To address this issue, section 107 of the Act resets the
benefit level for 2022 to $8,834.01 and increases the level
annually thereafter according to the CPI-W.
INSUFFICIENT OVERSIGHT OF SELF-INSURED MINE OPERATORS THREATENS THE
SOLVENCY OF THE BLACK LUNG DISABILITY TRUST FUND
As discussed above, the Black Lung Disability Trust Fund is
integral to the black lung disability benefits program. The
Trust Fund was created to cover the cost of benefits provided
to eligible miners who ended their employment before January 1,
1970, and to serve as a backstop for claims related to miners
whose employment ended after December 31, 1969. In the latter
case, the Trust Fund covers the cost of benefits where no
responsible operator can be identified.
Black Lung Disability Trust Fund Financing
The Trust Fund is financed primarily by a tax on coal
produced and sold domestically.\132\ The tax was first
established in 1978 at $0.50 per ton on underground coal and
$0.25 per ton on surface coal, both up to 2 percent of sales
price. In 1982, the tax was raised to $1 per ton for
underground coal and $0.50 per ton for surface coal, in each
case up to 4 percent of sale price.\133\ The last increase came
in 1986, when the rates were raised to $1.10 per ton on
underground coal and $0.55 per ton of surface coal.\134\ The
1986 rate is subject to reauthorization, and the last
reauthorization occurred in December 2020 for the calendar year
2021.\135\ That reauthorization lapsed without further action
on December 31, 2021, and the tax rate reverted to the 1978
levels. Congress has since permanently extended the 1986
level.\136\
---------------------------------------------------------------------------
\132\26 U.S.C. Sec. 4121.
\133\Gov't Accountability Off., supra note 76, at 7.
\134\Id. at 9.
\135\Further Consolidated Appropriations Act of 2020, Pub. L. No.
116-94, Div. EE, Title I, Sec. 149.
\136\Pub. L. No. 117-169, Sec. 13901.
---------------------------------------------------------------------------
The Trust Fund has operated on a deficit in almost every
year since its first fiscal year in operation. The Trust Fund
began paying out benefits prior to collecting the excise tax
that was intended to be the Trust Fund's primary financial
source, so the Trust Fund began operation at a loss. In its
first three fiscal years, the Trust Fund's revenue provided
less than 40 percent of the administrative and benefit
costs.\137\
---------------------------------------------------------------------------
\137\Gov't Accountability Off., supra note 76, at 12.
---------------------------------------------------------------------------
When the Trust Fund runs a deficit, the Treasury issues it
loans as ``repayable advances.''\138\ The Trust Fund must repay
these advances back to the General Fund with interest. In the
first ten years of operation, the Trust Fund borrowed from the
General Fund at interest rates between 6.5 and 13.9 percent on
30-year terms.\139\ In 1985, the Trust Fund paid out roughly
$275 million, or about half of the Fund's revenue for that
year, in interest payments.\140\ While the Trust Fund's revenue
has generally exceeded expenses since 1990, the earlier
borrowing saddled the Trust Fund with debt.\141\
---------------------------------------------------------------------------
\138\Siddhi Doshi & Adele Morris, Putting the Trust Back in the
Black Lung Disability Trust Fund, Brookings Inst., at 5 (Sept. 24,
2021), https://www.brookings.edu/wp-content/uploads/2021/10/Black-Lung-
Disability-Trust-Fund-2021.pdf.
\139\Gov't Accountability Off., supra note 76, at 9.
\140\Id.
\141\Id.
---------------------------------------------------------------------------
By 2008, the Trust Fund's debt exceeded $10 billion.\142\
Congress authorized an appropriation in the Energy Improvement
and Extension Act of 2008 that forgave $6.5 billion of the
Trust Fund's debt.\143\ However, in the wake of the 2008
recession, revenue from the coal excise tax was less than
expected, and increased competition with other, cheaper forms
of energy has meant that coal use has decreased. As a result,
the Trust Fund began again borrowing from the Treasury in
2010,\144\ and the Trust Fund's current debt is just over $6
billion.\145\ Since federal law does not place a cap on the
amount that the Trust Fund can borrow from the Treasury's
General Fund, the Trust Fund could borrow in perpetuity while
significantly increasing insolvency. GAO projects that
permanent reduction in the excise tax rate, coupled with a
decline in coal production, will expand the Trust Fund's debt
to $15.4 billion by 2050.\146\
---------------------------------------------------------------------------
\142\Id.
\143\Id. at 9-10 (characterizing effect of Pub. L. No. 110-343,
Div. B, Sec. 113 (2008) (26 U.S.C. Sec. 9501 note)).
\144\Id. at 10.
\145\U.S. Dep't of Lab., 2021 Agency Financial Report 96, https://
www.dol.gov/sites/dolgov/files/OPA/reports/2021annualreport.pdf.
\146\Gov't Accountability Off., supra note 76, at 37.
---------------------------------------------------------------------------
While coal produced and sold domestically is subject to the
excise tax to finance the Trust Fund, coal that is exported is
not included in the excise tax scheme.\147\ The resulting
impact on the Trust Fund is significant. In 2020, U.S. coal
mines produced 540.1 million short tons (MMst) of coal, 12.8
percent of which was exported and thus excluded from the excise
tax.\148\ Metallurgical coal in particular is largely shielded
from the excise tax: of the 55.5 MMst of metallurgical coal
produced in 2020, 42.0 MMst--or more than 75 percent--was
exported.\149\
---------------------------------------------------------------------------
\147\Erika K. Lunder, Cong. Res. Serv., R42780, Export Clause:
Limitation on Congress's Taxing Power, (Oct. 18, 2012).
\148\U.S. Energy Info. Admin., Ann. Coal Rep. 2020, at ix (Oct.
2021), https://www.eia.gov/coal/annual/pdf/acr.pdf.
\149\Id.
---------------------------------------------------------------------------
During the December 2nd Hearing, Rep. Mark Takano (D-CA-41)
questioned OWCP Director Chris Godfrey on the export exemption
from the excise tax and the consequence that the exemption has
for the liability of metallurgical coal producers:
Mr. Takano. Warrior Met appears to specialize in
metallurgical coal that is largely mined and exported.
If I understand it, that coal is not subject to the tax
that funds the Black Lung Disability Trust Fund. Is
that correct?
Mr. Godfrey. That is correct.
Mr. Takano. So, if this company shifted liabilities
onto the Trust Fund, for the most part, it would not
have contributed to that Trust Fund?
Mr. Godfrey. At least not through the excise tax,
that is correct.\150\
---------------------------------------------------------------------------
\150\Strengthening the Safety Net for Injured Workers: Hearing on
H.R. 2499, H.R. 3114, H.R. 6102, and H.R. 6087 Before the Subcomm. on
Wrkf. Prots. of the H. Comm. on Educ. & Lab., 117th Cong. (2021)
[hereinafter Strengthening the Safety Net] (https://edlabor.house.gov/
hearings/strengthening-the-safety-net-for-injured-workers, 1:21:07-
1:21:37).
---------------------------------------------------------------------------
Insufficient collateral from self-insured operators
The Trust Fund's debt has been exacerbated by insufficient
oversight of self-insured coal operators.
The BLBA requires operators to secure their liabilities
through either self-insurance or a commercial or state
insurance program.\151\ OWCP is charged with the enforcement of
this requirement. GAO has repeatedly identified deficiencies in
DOL's oversight of operators allowed to self-insure, including
failure to estimate future benefit liability when assessing the
amount of collateral required to self-insure and a lack of
clear processes for periodic review of continued eligibility
for self-insurance.\152\
---------------------------------------------------------------------------
\151\BLBA Sec. 923 (30 U.S.C. Sec. 933).
\152\See Thomas Costa, Gov't Accountability Off., GAO-22-105546,
Black Lung Benefits Program: Continued Inaction on Coal Operator Self-
Insurance Increases Financial Risk to Trust Fund (Dec. 2021); Cindy
Brown Barnes, Gov't Accountability Off., GAO-20-438-T, Black Lung
Benefits Program: Oversight is Needed to Address Trust Fund Solvency
Strained by Bankruptcies (Feb. 2020), https://www.gao.gov/assets/gao-
20-438t.pdf.
---------------------------------------------------------------------------
OWCP's failure to assess sufficient collateral for self-
insured operators strains the Trust Fund whenever such
operators enter bankruptcy proceedings. From 2014 through 2016,
three coal mine operators filed for bankruptcy and, as a
result, $865 million in black lung benefit liabilities were
transferred to the Trust Fund.\153\ These companies were
secured by a total of $27.4 million in collateral, meaning that
nearly 97 percent of their liabilities were unsecured.\154\
Five more mine operators became insolvent since 2016, at least
two of which are expected to transfer an additional $61 million
in under-collateralized liability to the Trust Fund.\155\
---------------------------------------------------------------------------
\153\Brown Barnes, supra note 152.
\154\Id.
\155\Costa, supra note 150.
---------------------------------------------------------------------------
OWCP's response has been incomplete. In 2019, OWCP began an
overhaul of its oversight of mine operators' insurance plans
and collateral, but the new processes did not include
procedures for its planned annual renewal of self-insured
operators or for resolving coal operator appeals if an operator
disputed OWCP's collateral requirements. In February 2020, OWCP
sent letters to 14 self-insured mine operators requesting
increased collateral. Seven of the operators appealed; in the
absence of appeal procedures, OWCP collected only $65 million
of the $251 million requested. As a result, OWCP has yet to
resolve the issue of insufficient collateral from these self-
insured operators.\156\
---------------------------------------------------------------------------
\156\Id.
---------------------------------------------------------------------------
GAO discovered that OWCP had even reversed course on
improving the review and appeals process, without an apparent
plan to address the problem:
In December 2020, DOL issued a preliminary bulletin
for coal operator self-insurance that described
significant changes and included actions that would
have addressed GAO's recommendations. For instance, DOL
set a goal to resolve coal operator appeals within 90
days after receiving supporting documents or meeting
with the operator to discuss their concerns.
However, in February 2021, DOL rescinded the
preliminary bulletin due to a program review by the
current administration, according to DOL officials. DOL
officials said they have taken no further actions to
resolve appeals or to collect any additional collateral
or other information from self-insured operators. As a
result, DOL has not obtained about $186 million in
requested collateral from self-insured operators that
appealed DOL's requested collateral. In addition, one
of these operators, Lighthouse Resources, filed for
bankruptcy in December 2020; this could result in a
transfer of about $2.4 million in estimated benefit
responsibility to the Trust Fund, according to DOL. In
addition, two operators DOL said no longer met their
requirements to self-insure almost two years ago remain
self-insured.
In November 2021, DOL officials said the current
administration's program review is complete, but could
not describe any anticipated changes to coal operator
self-insurance going forward.\157\
---------------------------------------------------------------------------
\157\Id. at 1.
Accordingly, section 131 of the Act offers reforms to
improve the financial integrity of the Trust Fund as follows:
Subsection (a) requires the Secretary to
promulgate, within 60 days of the date of enactment, an interim
final rule on self-insurance that establishes: (1) criteria for
operators' eligibility to seek and maintain approval for self-
insurance; (2) procedures for periodic determination of the
minimum amount of security required for each self-insured
operator; and (3) procedures for OWCP review of operator
appeals of self-insurance eligibility and security amount
decisions. This provision also requires a final rule to be
published within 12 months of the date of enactment. Although
OWCP has on its regulatory agenda an objective to publish a
proposed rule this summer on these topics, the threat of
additional self-insured operators abandoning their benefit
liabilities through bankruptcy onto the Trust Fund justifies
swifter action.
Subsection (b) disincentivizes violations of the
requirement to maintain commercial insurance or appropriate
self-insurance security by increasing civil monetary penalties
from $1,000 to $25,000. It also provides that civil damages for
unsecured benefits in the event of bankruptcy or permanent
abandonment of the obligation to secure payment shall include
the actuarial present value of benefit liabilities shifted onto
the Trust Fund, projected as of the date of failure to secure
benefits, less any collateral recovered, plus interest.
Accountability for corporate officers and related corporate entities
While DOL has worked to overhaul its oversight, it has
failed to use every tool available. The BLBA provides for the
personal liability of certain officers where a corporate mine
operator fails to insure or collateralize benefit liabilities:
[T]he president, secretary, and treasurer [of such
corporation] shall be severally personally liable,
jointly with such corporation, for any benefit which
may accrue under this subchapter in respect of any
disability which may occur to any employee of such
corporation while it shall so fail to secure the
payment of benefits as required by this section.\158\
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\158\30 U.S.C. Sec. 933.
DOL has not used this tool in decades, as Rep. Pramila
Jayapal (D-WA-7) pointed out in a colloquy with Julia
Hearthway, then the Director of OWCP, during a February 2020
hearing before the Committee's Workforce Protections
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Subcommittee:
Ms. Jayapal. Alpha Natural Resources' executives only
posted $12 million of the company's reserves to cover
$495 million in liabilities, and yet Alpha's executives
managed to pay themselves tens of millions of dollars
prior to and during bankruptcy proceedings. If the DOL
were to use its current legal authorities to sue mining
executive to recover losses due to underfunded self-
insurance, do you expect that those executives would do
a better job of collateralizing their obligations?
Ms. Brown Barnes. Yes. And that would have to happen
before bankruptcy, because after bankruptcy DOL has to
get in line with the other unsecured creditors.
Ms. Jayapal. Exactly. It is too late by then.
Ms. Brown Barnes. Yes.
Ms. Jayapal. And the DOL has used this tool before,
and it recovered money for the taxpayer. . . . And so,
the DOL may, under the Black Lung Benefits Act, impose
personal liability on CEOs and high-level officers of
the mining company when the company has not complied
with its obligation to provide sufficient insurance to
cover its liabilities to the program. Prior secretaries
of the DOL have successfully pursued those actions,
including Secretaries Brock and Donovan, who served
under President Reagan. But under this current
leadership, the DOL doesn't seem to have done that. Is
that correct? Has the DOL enforced this provision and
required mining company executives to pay their fair
share instead of putting it on the taxpayers?
Ms. Hearthway. So I noticed you went back to the
Reagan Administration. I could not find an instance
where daily fines were administered against a coal
operator for not securing the appropriate insurance in
the past 20 years.
Ms. Jayapal. But is there a reason you wouldn't do
it? It is allowed by the law, so--
Ms. Hearthway. No, I think it is--I think it is a
valuable tool if they do not secure the appropriate
insurance or put up the required collateral.
Ms. Jayapal. Because you could do that right now from
the executives of Alpha, Patriot, or James River. Those
are all three self-insured companies that recently went
bankrupt. That would be a great way to ensure that
those companies actually pay into the Fund that they
knew from the very beginning that they were supposed to
pay into.\159\
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\159\Asleep at the Switch: How the Department of Labor Failed to
Oversee the Black Lung Disability Trust Fund Workers: Hearing Before
the Subcomm. on Wrkf. Prots. of the H. Comm. on Educ. & Lab., 116th
Cong. 38-39 (2020).
Increasingly, however, individual corporate officers are
not the only relevant decisionmakers. Private equity firms--or,
in the words of United Mine Workers spokesperson Phil Smith,
``vulture capital''\160\--are taking over coal firms in the
U.S. and around the world.\161\ In the December 2nd Hearing,
Rep. Takano explored the potential consequences of private
equity interventions in coal mining through the case example of
Alabama-based operator Warrior Met Coal, one of the companies
from which OWCP had requested but not yet collected increased
collateral. After entering into the record excerpts from the
company's filings with the Securities Exchange Commission, Rep.
Takano observed that the company ``has paid out a whopping $1.5
billion in dividends and stock buybacks since 2017 during a
period of only $1.4 billion in total book net income and only
$312 million in increased company value.''\162\ He added, ``It
appears that the private equity funds controlling this company
are stripping its assets,'' increasing the risk that the
company could be driven into bankruptcy and shift its black
lung benefit liabilities onto the Trust Fund.\163\ These
private equity enterprises sometimes take the form of multiple
funds with ``layers of fund-related entities.''\164\
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\160\Sarah Jones, Miners vs. Vultures, New York (Jan. 20, 2022),
https://nymag.com/
intelligencer/2022/01/striking-warrior-met-coal-miners-challenge-
private-equity.html.
\161\Alyssa Giachino, Priv. Eq. Stakeholder Proj., As Climate
Change Requires Cuts to Coal, Private Equity Buys More (June 2020),
https://pestakeholder.org/wp-content/uploads/2020/07/PESP-As-Coal-
Declines-PE-Buys-More.pdf; James Attwood, Private Equity Lines Up for
Coal `Bonanza' Left by Public Miners, Bloomberg (Jan. 3, 2022), https:/
/www.bloomberg.com/news/articles/2022-01-03/private-equity-lines-up-
for-coal-bonanza-left-by-public-miners; Anthony Barich, Thermal Coal
Miners to Seek Private Route for Financing Amid Rising ESG Tide, S&P
Glob. Mkt. Intel., Nov. 26, 2020, https://www.spglobal.com/
marketintelligence/en/news-
insights/latest-news-headlines/thermal-coal-miners-to-seek-private-
route-for-financing-amid-risin g-esg-tide-61466495; As Climate Change
Requires Cuts to Coal, Private Equity Buys More, Priv. Eq. Stakeholder
Proj. (June 12, 2020), https://pestakeholder.org/as-climate-change-
requires-cuts-to-coal-private-equity-buys-more/; Virginia Heffernan,
The Rise of Private Equity Investment in Mining & Resources, Touchpoint
by Firmex, https://www.firmex.com/resources/uncategor
ized/the-rise-of-private-equity-investment-in-mining-resources/ (last
visited Aug. 3, 2022); Virginia Heffernan, Private Equity Investment in
Mining: Not Just a Rumour, Touchpoint by Firmex, https://
www.firmex.com/resources/uncategorized/private-equity-investment-in-
mining-not-just-a-rumour/ (last visited Aug. 3, 2022).
\162\Strengthening the Safety Net, supra note 148 (video of
colloquy between Rep. Takano and OWCP Director Christopher Godfrey,
https://edlabor.house.gov/hearings/strengthening-the-safety
-net-for-injured-workers 1:21:39-1:22:23).
\163\Id.
\164\Sun Cap. Partners III v. New Eng. Teamsters & Trucking Indus.
Pens. Fund, 724 F.3d 129, 133 (1st Cir. 2013).
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In light of these challenges to the solvency of the Trust
Fund, the Act makes several critical reforms:
Section 131(b)(1) amends the BLBA to add an
operator's chief executive officer and chief operating
officer to the list of corporate officers that can be
held severally liable with the corporation for civil
monetary penalties, jointly and severally liable for
unsecured benefit payments, severally liable for
imprisonment, and jointly liable for criminal fines.
Section 131(b)(1) also adds ``other
responsible parties'' to the list of corporate officers
that can be held liable with the corporate operator for
civil remedies and criminal punishment, and section
131(b)(2) defines such parties as any individual or
business entity with direct or indirect power over the
management and policies of the operator or any business
under an operator's common control. The definition
parallels terms found in the Employee Retirement Income
Security Act of 1974,\165\ which have at times been
held to extend liability to private equity and other
interconnected enterprises with active roles in leading
the affairs of an employer beyond merely passive
investing.\166\
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\165\See 29 U.S.C. Sec. Sec. 1002(9) (defining ``person''),
1301(14) (defining ``controlled group'' and ``common control''),
1301(20) (adopting definition in Sec. 1002(9)).
\166\See, e.g., Sun Cap. Partners III, 724 F.3d at 141-143, 146-47;
Central States, S.E. & S.W. Areas Pens. Fund v. Fulkerson, 238 F.3d
891, 897 (2001) (distinguishing between ``the passive holding of
property'' and active conduct of a trade or business).
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LEGALLY ESTABLISHING THE OFFICE OF WORKERS' COMPENSATION PROGRAMS WOULD
IMPROVE OVERSIGHT AND ACCOUNTABILITY
Section 201 of the Act codifies DOL's Office of Workers'
Compensation Programs (OWCP) and designates that its director
be subject to appointment by the President and confirmed by the
U.S. Senate. It also replaces the term ``Bureau of Employees'
Compensation,'' which is an obsolete designation in law. OWCP
administers the black lung benefits program.
OWCP originated in an organization established in 1916 to
administer claims under the Federal Employees' Compensation
Act\167\ (FECA).\168\ Today, FECA covers more than three
million civilian federal employees, Members of Congress, the
Peace Corps, and AmeriCorps/VISTA volunteers.
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\167\5 U.S.C. Sec. 8101 et seq.
\168\History of OWCP, U.S. Dep't of Lab., https://www.dol.gov/
agencies/owcp/owcphist (last visited July 5, 2022).
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In addition to the black lung benefits and the FECA
programs, OWCP also administers the following:
The Longshore and Harbor Workers'
Compensation Act of 1927,\169\ which covers all
maritime workers injured or killed working over the
navigable waters of the U.S., as well as employees
working on adjoining piers, docks, and terminals, plus
a number of other groups. Compensation under this Act
is paid by employers who are self-insured or through
insurance policies provided by private insurers to
employers.
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\169\33 U.S.C. Sec. 901 et seq.
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The Energy Employees Occupational Illness
Compensation Program Act\170\ (EEOICPA), which delivers
benefits and medical care for work-related illnesses to
eligible employees and former employees of the
Department of Energy, its contractors and
subcontractors, atomic weapons employers, and beryllium
vendors. The program also delivers benefits to certain
beneficiaries of section 5 of the Radiation Exposure
Compensation Act.\171\
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\170\42 U.S.C. Sec. 7384 et seq.
\171\42 U.S.C. Sec. 2210 et seq.
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As part of its responsibilities with these four major
statutes, OWCP is responsible for administering compensation
benefits in excess of $6.1 billion per year. When measured by
funds adjudicated and disbursed, OWCP is the second largest
subagency in the DOL (behind the Employment and Training
Administration). Given the size of its responsibilities and the
need for accountability to Congress in ensuring fairness,
efficiency, and program integrity, it is appropriate to have a
Senate-confirmed individual leading this agency.
Although this office does not regulate state workers'
compensation programs, it has had a monitoring role. Congress
created the National Commission on State Workmen's Compensation
Laws in the Occupational Safety and Health Act of 1970 to
undertake ``a comprehensive study and evaluation of State
workmen's compensation laws in order to determine if such laws
provide an adequate, prompt, and equitable system of
compensation.''\172\ In 1972, the National Commission concluded
that ``the protection furnished by workmen's compensation to
American workers presently is, in general, inadequate and
inequitable''\173\ and made 19 recommendations that it regarded
as ``essential.''\174\ OWCP has overseen the publication of
reports on the implementation of these 19 key recommendations,
which continued until the Bush administration ceased producing
the report in 2004.
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\172\Occupational Safety and Health Act of 1970, Pub. L. No. 91-596
(Dec. 29, 1970), Sec. 27(d)(1).
\173\Nat'l Comm'n on State Workmen's Comp. L., The Report of the
National Commission on State Workmen's Compensation Laws 3, 19 (July
1972), https://workerscompresources.com
/national-commission-report/.
\174\Id. at 26.
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In 2015, DOL identified the need to resume monitoring,
because the failure of state workers' compensation systems to
provide adequate benefits puts injured workers at great risk of
falling into poverty.\175\ In fact, workers' compensation
absorbs less than 25 percent of the estimated $250 billion
annual cost of workplace illness and injury,\176\ and much of
that cost is instead shifted to Medicare, Medicaid, and Social
Security Disability Insurance.\177\ Following congressional
direction from the Consolidated Appropriations Act, FY
2022,\178\ the Biden Administration is moving forward to resume
this oversight in FY 2023.\179\
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\175\U.S. Dep't of Lab., Does the Workers' Compensation System
Fulfill its Obligations to Injured Workers? (2015), https://
www.dol.gov/sites/dolgov/files/OASP/files/Workers
CompensationSystemReport.pdf.
\176\J. Paul Leigh, Economic Burden of Occupational Injury and
Illness in the United States, 89 Milbank Q. 728 (2011).
\177\Alison Morantz et al., Economic Incentives in Workers'
Compensation: A Holistic, International Perspective, 69 Rutgers L. Rev.
1015, 1065-66 (2017).
\178\H.R. Rep. No. 117-96, Title I, 30 (2021) (Comm. Rpt.).
\179\Off. of Workers' Comp. Programs, FY 2023 Congressional Budget
Justification: Office of Workers' Compensation Programs, Overview 4
(2022), https://www.dol.gov/sites/dolgov/files/general/budget/2023/CBJ-
2023-V2-03.pdf.
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Codification of the agency and Senate confirmation of its
leadership would enable greater oversight of an agency with a
large portfolio that has the power to make decisions affecting
tens of thousands of people every year as well as a
responsibility to safeguard the public. Absent the spotlight of
congressional oversight, past OWCP leadership neglected to take
affirmative steps to end medical provider fraud\180\ and
address inadequate black lung self-insurance collateral.\181\
Moreover, previous OWCP leadership and other agencies actively
sought to undermine the implementation of the EEOICPA, which
only became public knowledge following multiple congressional
hearings.\182\ The programs clustered under the banner of OWCP
are important and merit meaningful accountability to Congress.
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\180\See Off. of Inspector Gen., U.S. Dep't of Lab., 03-17-001-04-
431, Interim Report on Audit of Pharmaceutical Management in DOL
Benefit Programs: OWCP Needs Better Controls Over Compounded
Prescription Drugs (May 23, 2017), https://www.oig.dol.gov/public/
reports/oa/2017/03-17-001-04-431.pdf; Off. of Inspector Gen., U.S.
Postal Serv., HR-MA-16-003, Workers' Compensation Compound Drug Costs
(Mar. 14, 2016), https://www.uspsoig.gov/sites/default/files/document-
library-files/2016/HR-MA-16-003.pdf.
\181\See text accompanying notes 149-155 supra.
\182\See, e.g., Energy Employees Occupational Illness Compensation
Program: Are We Fulfilling the Promise We Made to These Cold War
Veterans When We Created This Program? (Part III): Hearing Before the
Subcomm. on Immigr., Border Sec. & Claims of the H. Comm. on the
Judiciary, 109th Cong. (2006); Energy Employees Occupational Illness
Compensation Program: Are We Fulfilling the Promise We Made to These
Cold War Veterans When We Created This Program? (Part II): Hearing
Before the Subcomm. on Immigr., Border Sec. & Claims of the H. Comm. on
the Judiciary, 109th Cong. (2006); Energy Employees Occupational
Illness Compensation Program: Are We Fulfilling the Promise We Made to
These Cold War Veterans When We Created This Program? (Part I): Hearing
Before the Subcomm. on Immigr., Border Sec. & Claims of the H. Comm. on
the Judiciary, 109th Cong. (2006); Energy Employees Occupational
Illness Compensation Program: Hearing Before the S. Comm. on Energy &
Nat. Res., 108th Cong. (2003); Oversight of the Management Practices at
the Office of Workers' Compensation Programs: Hearing Before the
Subcomm. on Gov't Mngmt., Info. & Tech. of the H. Comm. on Gov't Ref.,
105th Cong. (1998). See also H. Comm. on Gov't Ref., Management
Practices at the Office of Workers' Compensation Programs, U.S.
Department of Labor, H.R. Rep. No. 106-1024 (2000).
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CONCLUSION
Without the reforms of the Black Lung Benefits Improvement
Act, miners whose work gives this country the power it needs to
thrive will die destitute and in agony from black lung disease.
This bill will facilitate miners' and their families' access to
the benefits to which they are entitled, ensure that coal
operators play by the rules and pay what they owe, and improve
public accountability for DOL's role in accomplishing those
objectives.
Section-by-Section Analysis
Sec. 1. Short title
This section specifies that the bill may be cited as the
Black Lung Benefits Improvement Act of 2022.
Sec. 2. Table of contents
This section provides a Table of Contents for the bill.
TITLE I--BLACK LUNG BENEFITS
Part A--Improvement in the Process of Filing and Adjudicating Claims
for Benefits
Sec. 101. Providing assistance with claims for miners and their
dependent family members
This section amends section 427(a) of the Black Lung
Benefits Act (BLBA) (30 U.S.C. 937(a)) to authorize black lung
clinics to assist miners, surviving spouses, and dependents as
they pursue claims for benefits in addition to the clinics'
existing role of treating respiratory and pulmonary impairments
in active and former coal miners.
Sec. 102. Clarifying eligibility for black lung benefits
This section amends section 411(c) of the BLBA (30 U.S.C.
921(c)), which currently provides that a miner is entitled to
an irrebuttable presumption that the miner is totally disabled
by pneumoconiosis, died because of pneumoconiosis, or was
totally disabled by pneumoconiosis at the time of death, as the
case may be, in cases where the miner has been diagnosed with
progressive massive fibrosis or complicated pneumoconiosis.
This section substitutes the term ``radiograph'' for the
outmoded term ``roentgenogram;'' clarifies the benchmark for
the relevant diagnosis as an opacity, mass, or lesion for which
the ``greatest diameter'' exceeds one centimeter; and allows
for potential shrinkage of any masses or lesions measured after
biopsy or autopsy.
Sec. 103. Development of medical evidence by the Secretary
This section amends Part C of the BLBA (30 U.S.C. 931 et
seq.) by adding the new section 435, as follows:
Section 435(a) requires the Secretary of
Labor (Secretary) to provide a claimant, upon request,
an opportunity to substantiate the claimant's claim
with a complete pulmonary exam that includes a
preliminary report by a physician on the Secretary's
list of qualified physicians and supplemental evidence,
provided for free to the miner if certain conditions
exist.
Section 435(b) authorizes the Secretary,
when a conventional lung X-ray fails to provide a
definitive image for diagnosing complicated
pneumoconiosis, to provide a high-quality, low-dose or
standard CT scan if a chest radiograph reveals advanced
pneumoconiosis (ILO category 2/1 or greater) or a
coalescence of small opacities.
Section 435(c) spells out the trigger for
requiring the Secretary to develop supplemental
evidence in cases in which a party opposing the claim
provides evidence that could be considered contrary to
the initial report of the pulmonary examination, or
such party's evidence has been submitted to an
Administrative Law Judge (ALJ) that had not been
previously considered by the Secretary in making an
award.
Section 435(d) delineates the process for
developing supplemental evidence. To develop the
supplemental evidence, the Secretary shall request the
physician who developed the initial medical report for
the claimant to review any medical evidence submitted
after the initial report and to update the opinion of
such physician in a supplemental report, if warranted.
If the original physician who examined the miner is no
longer available, the Secretary shall select another
qualified physician.
Section 435(e) codifies the Secretary's
practice of creating and maintaining a list of
qualified physicians to perform pulmonary examinations
of coal miners but enhances quality assurance by
requiring that the Secretary pre-screen physicians for
adverse professional actions involving medical
licensure, certifications, hospital privileges, or
professional societies. This section precludes the use
of physicians from the list maintained by the Secretary
who have a potential or actual conflict of interest
through current or recent employment or contractual
arrangements with a private party opposing an
individual's claim unless the claimant knowingly waives
such conflict. The Secretary shall update such list
annually by reviewing the suitability of the qualified
physicians to remain or be added to the list and
assessing any potential conflicts of interest.
Section 435(f) requires reports produced
pursuant to this section to be entered into the claim
record and shared with the parties.
Section 435(g) provides that expenses
incurred during the development of the evidence should
be paid by the Black Lung Disability Trust Fund, which
shall be reimbursed with interest by the responsible
operator if the claim results in a final award for
benefits.
Sec. 104. False statements or misrepresentations, attorney
disqualification, and discovery sanctions
This section rewrites section 431 of the BLBA to read as
follows:
Sections 431(a)-(b) make it a felony,
punishable by no more than 5 years in prison, for any
person, including a claimant, operator or any
authorized agent of an operator, physician, or insurer,
to knowingly and willfully (1) make a false statement
or misrepresentation for purposes of obtaining,
denying, or otherwise affecting any black lung benefits
or (2) threaten, coerce, intimidate, deceive, or
mislead a party, representative, witness, potential
witness, judge, or anyone participating in a
proceeding.
Section 431(e) requires the United States
Attorney for a district in which a violation of section
431(a) takes place to make every reasonable effort to
investigate a complaint promptly.
Section 431(d) establishes that any attorney
found guilty of conduct under Section 431(a)-(b) is
also permanently disqualified from representing any
party or appearing in any further proceedings under the
Act.
Section 431(e) provides guidelines for
making determinations as to whether attorney behavior
warrants disqualification and grants ALJs the authority
to issue sanctions when a party fails to comply with a
discovery order.
Section 431(f) requires the Secretary to
promulgate regulations to provide procedures for
disqualifications and discovery sanctions.
Sec. 105. Readjudicating cases involving certain chest radiographs
This section allows claimants, including coal miners and
their survivors, to file a new claim for benefits if such claim
has been denied and such decision involved a chest radiograph
that had been interpreted as negative for simple
pneumoconiosis, complicated pneumoconiosis, or progressive
massive fibrosis by a physician with respect to whom the
Secretary has directed that such physician's medical opinions
be given no weight in evaluating a claim of benefits. Any
benefit award is retroactive: for miners, such award dates back
to the month that the erroneously denied claim was originally
filed; for survivors, such award dates back to the month of the
miner's death.
Sec. 106. Attorneys' fees and medical expenses payment program
This section authorizes program payments to provide miners'
attorneys with legal fees of up to $1,500 at the District
Director level and up to $3,000 at the ALJ level for a total of
up to $4,500, provided that the claimant prevails at each
level. In addition, claimants may seek reimbursement of up to
$1,500 for medical costs at each level, for a total of no more
than $3000. The legal fees and medical costs under this section
would initially be paid from the Black Lung Disability Trust
Fund; however, if the miner ultimately prevails in a claim for
benefits, the responsible coal operator would be required to
reimburse the Trust Fund for the legal fees and costs that were
paid under this section and, consistent with existing law,
would be required to pay any additional attorney's fees and
allowable costs that exceed the amount that was already paid
from the Trust Fund.
Sec. 107. Restoring adequate benefit adjustments for miners suffering
from black lung disease and for their dependent family members
This section sets the annual rate of benefit payments for
Black Lung claimants at $8,834.01, or $736.17 per month,
beginning in 2022. After 2022, this section ties yearly
increases in benefit payments to the Consumer Price Index for
Urban Wage Earners and Clerical Workers (CPI-W).
Sec. 108. Disclosure of employment and earnings information for black
lung benefits claims
This section requires the Social Security Administration
(SSA) to provide the Department of Labor (DOL) with access to
miners' employment information in electronic form.
Part B--Reports to Improve the Administration of Benefits Under the
Black Lung Benefits Act
Section 121. Strategy to reduce delays in adjudication
This section requires the Secretary, within 90 days, to
submit to Congress a comprehensive strategy to reduce the
backlog of cases pending before the Office of Administrative
Law Judges (OALJ). The strategy must identify, among other
things, the resources necessary to ensure that claims brought
under the BLBA are decided within 12 months from the date they
are received by the OALJ.
Part C--Improvement in the Financial Security of the Black Lung
Benefits Disability Trust Fund
Sec. 131. Policies for securing the payment of benefits
This section requires the Secretary to issue an interim
final rule within 60 days of enactment of this Act that will
establish clear processes for determining an operator's
eligibility to self-insure, assessing appropriate levels of
collateral to secure the operator's estimated black lung
liabilities and reviewing an operator's appeals of decisions
about self-insurance eligibility or required security amounts.
This section also increases civil monetary penalties for
failure to maintain required security or insurance from $1,000
to $25,000. Current law provides that certain corporate
officers of the operator can be held jointly or severally
liable for such failure, and this section expands that list by
naming additional corporate officers who, and related business
entities that, can be held jointly or severally liable.
TITLE II--ESTABLISHING THE OFFICE OF WORKERS' COMPENSATION PROGRAMS
Sec. 201. Office of Workers' Compensation Programs
This section codifies the Office of Workers' Compensation
Programs in DOL, which shall be directed by a Director, who
shall be appointed by the President, by and with the advice and
consent of the Senate.
TITLE III--ADDITIONAL PROVISIONS
Sec. 301. Technical and conforming amendments
Amendments to the BLBA in 2010 popularly known as the
``Byrd amendments'' restored a presumption of total disability
or death caused by pneumoconiosis for coal miners who worked
for at least 15 years in underground mining and who suffer or
suffered from a totally disabling respiratory impairment. The
amendments also restored surviving spouses' and dependents'
automatic entitlement to survivor benefits if the coal miner
died while receiving federal Black Lung benefits.\183\ Several
other sections of the BLBA referencing benefits for these
miners and surviving spouses were left un-amended. This section
makes technical corrections to ensure that the Byrd amendments
are applied consistently throughout the BLBA.
---------------------------------------------------------------------------
\183\See text accompanying notes 43-47 supra.
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This section also makes a series of technical amendments to
render the BLBA gender neutral. For example, it replaces the
terms ``wife'' and ``widow'' with the terms ``spouse'' or
``surviving spouse,'' as appropriate. It also modifies current
law regarding eligibility for survivor benefits to provide that
marital status is determined by the courts of the state in
which the marriage was celebrated rather than determining the
validity of the marriage based on state of domicile.
Sec. 302. Severability
This section ensures that, if one section of this Act is
found to be unconstitutional or otherwise legally
unenforceable, the other sections of the law are severed and
continue to stand as good law.
Explanation of Amendments
The amendments, including the Amendment in the Nature of a
Substitute, are explained in the descriptive portions of this
report.
Application of Law to the Legislative Branch
Pursuant to section 102(b)(3) of the Congressional
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 6102, as
amended, does not apply to terms and conditions of employment
or to access to public services or accommodations within the
legislative branch.
Unfunded Mandate Statement
Pursuant to section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended
by section 101(a)(2) of the Unfunded Mandates Reform Act of
1995, Pub. L. No. 104-4), the Committee adopts as its own the
estimate of federal mandates regarding H.R. 6102, as amended,
prepared by the Director of the Congressional Budget Office.
Earmark Statement
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 6102 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 6102:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Statement of Performance Goals and Objectives
Pursuant to clause (3)(c) of rule XIII of the Rules of the
House of Representatives, the goal of H.R. 6102 is to improve
the fairness in the administration of the Black Lung Benefits
Act for miners suffering from black lung and their survivors.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H.R. 6102 is known to be duplicative of another
federal program, including any program that was included in a
report to Congress pursuant to section 21 of Pub. L. No. 111-
139 or the most recent Catalog of Federal Domestic Assistance.
Hearings
Pursuant to clause 3(c)(6) of rule XIII of the Rules of the
House of Representatives, the Committee's Subcommittee on
Workforce Protections held a hearing on December 2, 2021,
entitled ``Strengthening the Safety Net for Injured Workers,''
which was used to develop H.R. 6102. The witnesses were: Mr.
Christopher J. Godfrey, Director, Office of Workers'
Compensation Programs, U.S. Department of Labor, Washington,
DC; and Mr. Thomas M. Costa, Director of Education, Workforce,
and Income Security for the Government Accountability Office,
Washington, DC. Relevant to developing H.R. 6102, the Committee
heard testimony about the status of reforms for the black lung
program.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
New Budget Authority and CBO Cost Estimate
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a) of the
Congressional Budget and Impoundment Control Act of 1974, and
pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives and section 402 of the Congressional
Budget and Impoundment Control Act of 1974, the Committee has
received the following estimate for H.R. 6102 from the Director
of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 26, 2022.
Hon. Robert C. (Bobby) Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 6102, the Black
Lung Benefits Improvement Act of 2022.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Meredith
Decker.
Sincerely,
Mark P. Hadley,
(For Phillip L. Swagel, Director).
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The bill would:
Increase black lung benefits paid to miners
and their survivors
Make it easier for miners to substantiate
their claims using computerized tomography (or CT)
scans
Increase the maximum penalty for coal
operators who violate self-insurance rules
Codify existing regulations and practices
for paying black lung benefits
Estimated budgetary effects would mainly stem from:
Increasing benefits for miners and survivors
Increasing the number of people who receive
black lung benefits
Reimbursing some attorneys' fees associated
with black lung claims
Areas of significant uncertainty include:
The number of additional claims that would
be paid because of changes to rules for medical
evidence
Bill summary: H.R. 6102 would increase benefits for miners,
and their survivors, who are affected by coal workers'
pneumoconiosis (commonly referred to as black lung disease) or
other lung diseases and would allow certain attorneys' fees to
be paid by the federal government. In addition, the bill would
expand use of computerized tomography (CT) scans as medical
evidence to substantiate miners' black lung claims, resulting
in more people receiving benefits. Some of those costs would be
paid by responsible coal operators.
Estimated Federal cost: The estimated budgetary effect of
H.R. 6102 is shown in Table 1. The costs of the legislation
fall within budget function 600 (income security).
TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF H.R. 6102
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
--------------------------------------------------------------------------------------------------
2022 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2022-2027 2022-2032
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increases in Direct Spending
Estimated Budget Authority........................... 0 9 6 7 7 7 7 7 8 8 8 36 74
Estimated Outlays.................................... 0 9 6 7 7 7 7 7 8 8 8 36 74
--------------------------------------------------------------------------------------------------------------------------------------------------------
Enacting H.R. 6102 would increase revenue by an insignificant amount over the 2023-2032 period. The bill also would increase spending subject to
appropriation by an insignificant amount over the 2023-2027 period.
Basis of estimate: For this estimate, CBO assumes that H.R.
6102 will be enacted by the end of calendar year 2022.
Estimated outlays are based on historical spending patterns for
the affected programs.
Direct spending: Under current law, miners, and their
survivors, affected by black lung and related diseases can
receive benefits if their disease is connected to coal mining.
If the responsible mine operator cannot pay benefits, the
federal government pays benefits out of the Black Lung
Disability Trust Fund (BLDTF). H.R. 6102 would increase direct
spending chiefly by increasing benefits for people who are
disabled and their survivors, increasing the number of miners
who could claim those benefits, and reimbursing attorneys for
certain legal fees. Over the 2023-2032 period, CBO estimates
the bill would cost $74 million.
Benefit rates: H.R. 6102 would increase the payment for
disability and survivors' benefits, retroactively starting on
January 1, 2022, by about 4 percent, and would increase those
benefits each year based on the change in the Consumer Price
Index. CBO estimates that the number of people receiving black
lung benefits is roughly 25,000 annually; benefits for about
two-thirds of those people will be paid out of the BLDTF. On
that basis, and using the inflation rates that underlie CBO's
baseline, we estimate that enacting this provision would
increase direct spending by $53 million over the 2023-2032
period.
Attorneys' fees: Under the bill, attorneys for people
applying for black lung benefits would be reimbursed up to
$1,500 for legal fees if the claimant is awarded benefits by a
district director and up to $3,000 if benefits are awarded by
an administrative law judge. Initially, those amounts would be
paid by the federal government, but mine operators would be
required to reimburse the Department of Labor (DOL) if the
operators are also responsible for the claimants' black lung
benefits. Using information from the department, CBO estimates
that, on net, the bill would increase direct spending from the
BLDTF by $15 million over the 2023-2032 period for attorneys'
fees.
Medical evidence: More weight is placed on some types of
evidence when evaluating claims for black lung benefits during
the adjudication process. Under H.R. 6102, pneumoconiosis or
related diseases diagnosed by a CT scan would be weighted
equally as other forms of medical evidence in certain cases.
Additionally, DOL would be obligated to authorize those scans
in certain cases; the cost of authorized medical examination
and tests would ultimately be paid for by the BLDTF or
responsible coal operator. Because the early stages of
pneumoconiosis and related diseases are more likely to be
identified through CT scans than other methods, CBO expects
that 60 additional people would be awarded black lung benefits
over the 2023-2032 period. The federal government would pay the
benefits for about 40 of those people through the BLDTF. CBO
estimates that the cost of additional scans and benefits would
be $6 million over the 2023-2032 period.
Criminal penalties: CBO estimates that H.R. 6102 would
increase collections of criminal penalties, which are recorded
as revenues, as discussed below under the heading ``Revenues.''
Criminal penalties are deposited in the Crime Victims Fund and
later spent without further appropriation action. CBO estimates
those additional penalties would increase direct spending by an
insignificant amount over the 2023-2032 period.
Other provisions: H.R. 6102 would amend the descriptions of
eligibility for black lung benefits and the Office of Workers'
Compensation Programs. Because these provisions would codify
existing practices and procedures, they would not affect
federal spending.
Revenues: Under current law, people who make false
statements or submit false claims to obtain black lung benefits
can face criminal fines and imprisonment. H.R. 6102 would
encourage additional investigations of violators, explicitly
define the types of violations that may result in fines, and
increase the maximum prison sentence for making a false
statement. Criminal fines are recorded as revenues, deposited
in the Crime Victims Fund, and later spent without further
appropriation action. CBO estimates that those increased
penalties would not be significant.
In addition, H.R. 6102 would increase the maximum daily
civil penalty from $3,011 to $25,000 if coal mine operators
fail to maintain required security or insurance. Finally, the
bill would expand the list of corporate executives and entities
that can be held jointly or severally liable in the event of a
failure to pay black lung benefits; the liability would extend
beyond bankruptcy filings or other permanent abandonment. Those
fines also are recorded as revenues. Given that DOL has not
assessed such penalties in recent years, CBO expects those
changes would not increase revenues by a significant amount.
Spending subject to appropriation: The bill would require
DOL to issue new regulations concerning self-insurance,
procedures for disqualification of attorneys, and discovery
sanctions. The bill also would require the Social Security
Administration to make earnings information for living or
deceased miners available to DOL in electronic form rather than
on paper. CBO estimates that the cost of those provisions would
be insignificant over the 2023-2032 period.
Uncertainty: CBO's estimates of the budgetary effects of
H.R. 6102 are subject to uncertainty. In particular, the number
of claims that would be accepted as a result of new rules
concerning medical evidence could differ from CBO's
projections. Therefore, the cost of benefits could be higher or
lower than CBO estimated.
Pay-As-You-Go considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays and revenues that are
subject to those pay-as-you-go procedures are shown in Table 1.
Increase in long-term deficits: CBO estimates that enacting
H.R. 6102 would not increase on-budget deficits by more than $5
billion in any of the four consecutive 10-year periods
beginning in 2033.
Mandates: H.R. 6102 would impose a private-sector mandate
as defined in the Unfunded Mandates Reform Act (UMRA) by
increasing the amount and availability of benefits paid under
the Black Lung Benefits Act. Benefits currently are paid in
part by the employers of claimants; therefore, the changes in
the bill would increase the cost of an existing mandate.
Because of the small number of additional new beneficiaries,
CBO estimates that the cost of the mandate would not exceed the
private-sector threshold established in UMRA ($184 million in
2022, adjusted annually for inflation).
The bill contains no intergovernmental mandates as defined
in UMRA.
Estimate prepared by: Federal costs: Meredith Decker;
Revenues: Omar Morales; Mandates: Andrew Laughlin.
Estimate reviewed by: Elizabeth Cove Delisle, Chief, Income
Security Cost Estimates Unit; Joshua Shakin, Chief, Revenue
Estimating Unit; H. Samuel Papenfuss, Deputy Director of Budget
Analysis; Theresa Gullo, Director of Budget Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 6102.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget and Impoundment
Control Act of 1974.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 6102, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
BLACK LUNG BENEFITS ACT
* * * * * * *
TITLE IV--BLACK LUNG BENEFITS
Part A--General
Sec. 401. (a) Congress finds and declares that there are a
significant number of coal miners living today who are totally
disabled due to pneumoconiosis arising out of employment in one
or more of the Nation's coal mines; that there are a number of
survivors of coal miners whose deaths were due to this disease;
and that few States provide benefits for death or disability
due to this disease to coal miners or their surviving
dependents. It is, therefore, the purpose of this title to
provide benefits, in cooperation with the States, to coal
miners who are totally disabled due to pneumoconiosis and to
the surviving dependents of miners whose death was due to such
disease or who were found to be totally disabled by such
disease; and to ensure that in the future adequate benefits are
provided to coal miners and their dependents in the event of
their death or total disability due to pneumoconiosis.
(b) This title may be cited as the ``Black Lung Benefits
Act''.
Sec. 402. For purposes of this title--
(a) The term ``dependent'' means--
(1) a child as defined in subsection (g) without
regard to subparagraph (2) (B) (ii) thereof; or
[(2) a wife who is a member of the same household as
the miner, or is receiving regular contributions from
the miner for her support, or whose husband is a miner
who has been ordered by a court to contribute to her
support, or who meets the requirements of section
216(b) (1) or (2) of the Social Security Act. The
determination of an individual's status as the ``wife''
of a miner shall be made in accordance with section
216(h)(1) of the Social Security Act as if such miner
were the ``insured individual'' referred to therein.
The term ``wife'' also includes a ``divorced wife'' as
defined in section 216(d)(1) of the Social Security Act
who is receiving at least one-half of her support, as
determined in accordance with regulations prescribed by
the Secretary, from the miner, or is receiving
substantial contributions from the miner (pursuant to a
written agreement), or there is in effect a court order
for substantial contributions to her support from such
miner.]
(2) a spouse who is a member of the same household as
the miner, or is receiving regular contributions from
the miner for support, or whose spouse is a miner who
has been ordered by a court to contribute to support,
or who meets the requirements of paragraph (1) or (2)
of section 216(b) of the Social Security Act or
paragraph (1) or (2) of section 216(f) of such Act. An
individual is the ``spouse'' of a miner when such
individual is legally married to the miner under the
laws of the State where the marriage was celebrated.
The term ``spouse'' also includes a ``divorced wife''
or ``divorced husband'', as such terms are defined in
paragraph (1) or (4) of section 216(d) of such Act, who
is receiving at least one-half of his or her support,
as determined in accordance with regulations prescribed
by the Secretary, from the miner, or is receiving
substantial contributions from the miner (pursuant to a
written agreement), or there is in effect a court order
for substantial contributions to the spouse's support
from such miner.
(b) The term ``pneumoconiosis'' means a chronic dust disease
of the lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine employment.
(c) The term ``Secretary'', except where expressly otherwise
provided, means the Secretary of Labor.
(d) The term ``miner'' means any individual who works or has
worked in or around a coal mine or coal preparation facility in
the extraction or preparation of coal. Such term also includes
and individual who works or has worked in coal mine
construction or transportation in or around a coal mine, to the
extent such individual was exposed to coal dust as a result of
such employment.
[(e) The term ``widow'' includes the wife living with or
dependent for support on the miner at the time of his death, or
living apart for reasonable cause or because of his desertion,
or who meets the requirements of section 216(c) (1), (2), (3),
(4), or (5), section 216(k) of the Social Security Act, who is
not married. The determination of an individual's status as the
``widow'' of a miner shall be made in accordance with section
216(h)(1) of the Social Security Act as if such miner were the
``insured individual'' referred to therein. Such term also
includes a ``surviving divorced wife'' as defined in section
216(d)(2) of the Social Security Act who for the month
preceding the month in which the miner died, was receiving at
least one-half of her support, as determined in accordance with
regulations prescribed by the Secretary, from the miner, or was
receiving substantial contributions from the miner (pursuant to
a written agreement) or there was in effect a court order for
substantial contributions to her support from the miner at the
time of his death.]
(e) The term ``surviving spouse'' includes the spouse living
with or dependent for support on the miner at the time of the
miner's death, or living apart for reasonable cause or because
of the miner's desertion, or who meets the requirements of
subparagraph (A), (B), (C), (D), or (E) of section 216(c)(1) of
the Social Security Act, subparagraph (A), (B), (C), (D), or
(E) of section 216(g)(1) of such Act, or section 216(k) of such
Act, who is not married. An individual is the ``surviving
spouse'' of a miner when legally married at the time of the
miner's death under the laws of the State where the marriage
was celebrated. Such term also includes a ``surviving divorced
wife'' or ``surviving divorced husband'', as such terms are
defined in paragraph (2) or (5) of section 216(d) of such Act
who for the month preceding the month in which the miner died,
was receiving at least one-half of his or her support, as
determined in accordance with regulations prescribed by the
Secretary, from the miner, or was receiving substantial
contributions from the miner (pursuant to a written agreement)
or there was in effect a court order for substantial
contributions to the spouse's support from the miner at the
time of the miner's death.
(f)(1) The term ``total disability'' has the meaning given it
by regulations of the Secretary of Health, Education, and
Welfare, which were in effect on the date of enactment of the
Black Lung Consolidation of Administrative Responsibilities
Act, for claims under part B of this title, and by regulations
of the Secretary of Labor for claims under part C of this
title, subject to the relevant provisions of subsections (b)
and (d) of section 413, except that--
(A) in the case of a living miner, such regulations
shall provide that a miner shall be considered totally
disabled when pneumoconiosis prevents him or her from
engaging in gainful employment requiring the skills and
abilities comparable to those of any employment in a
mine or mines in which he or she previously engaged
with some regularity and over a substantial period of
time;
(B) such regulations shall provide that (i) a
deceased miner's employment in a mine at the time of
death shall not be used as conclusive evidence that the
miner was not totally disabled; and (ii) in the case of
a living miner, if there are changed circumstances of
employment indicative of reduced ability to perform his
or her usual coal mine work, such miner's employment in
a mine shall not be used as conclusive evidence that
the miner is not totally disabled;
(C) such regulations shall not provide more
restrictive criteria than those applicable under
section 223(d) of the Social Security Act; and
(D) the Secretary of Labor, in consultation with the
Director of the National Institute for Occupational
Safety and Health, shall establish criteria for all
appropriate medical tests under this subsection which
accurately reflect total disability in coal miners as
defined in subparagraph (A).
(2) Criteria applied by the Secretary of Labor in the case
of--
(A) any claim arising under part B or subject to a
determination by the Secretary of Labor under section
435(a);
(B) any claim which is subject to review by the
Secretary of Labor under section 435(b); and
(C) any claim filed on or before the effective date
of regulations promulgated under this subsection by the
Secretary of Labor;
shall not be more restrictive than the criteria applicable to a
claim filed on June 30, 1973, whether or not the final
disposition of any such claim occurs after the date of such
promulgation of regulations by the Secretary of Labor.
(g) The term ``child'' means a child or a step-child who is--
(1) unmarried; and
(2)(A) under eighteen years of age, or
(B)(i) under a disability as defined in section
223(d) of the Social Security Act,
(ii) which began before the age specified in section
202(d)(1)(B)(ii) of the Social Security Act, or, in the
case of a student, before [he ceased] the individual
ceased to be a student; or
(C) a student.
The term ``student'' means a ``full-time student'' as defined
in section 202(d)(7) of the Social Security Act, or a
``student'' as defined in section 8101(17) of title 5, United
States Code. The determination of an individual's status as the
``child'' of the miner or [widow] surviving spouse, as the case
may be, shall be made in accordance with section 216(h) (2) or
(3) of the Social Security Act as if such miner, or [widow]
surviving spouse were the ``insured individual'' referred to
therein.
(h) The term ``fund'' means the Black Lung Disability Trust
Fund established by section 9501 of the [Internal Revenue Code
of 1954] Internal Revenue Code of 1986.
(i) For the purposes of subsections (c) and (j) of section
422, and for the purposes of paragraph (7) of subsection (d) of
section 9501 of the [Internal Revenue Code of 1954] Internal
Revenue Code of 1986, the term ``claim denied'' means a claim--
(1) for benefits under part B that was denied by the
official responsible for administration of such part;
or
(2) in which (A) the claimant was notified by the
Department of Labor of an administrative or informal
denial more than 1 year prior to the date of enactment
of the Black Lung Benefits Reform Act of 1977 and did
not, within 1 year from the date of notification of
such denial, request a hearing, present additional
evidence or indicate an intention to present additional
evidence, or (B) the claim was denied under the law in
effect prior to the date of enactment of the Black Lung
Benefits Reform Act of 1977 following a formal hearing
or administrative or judicial review proceeding.
(j) The term ``other responsible party'' means--
(1) an individual, partnership, joint venture,
corporation, mutual company, joint-stock company,
trust, estate, unincorporated organization,
association, or other enterprise that possesses,
directly or indirectly, the power to direct or cause
the direction of the management and policies of an
operator or employer; or
(2) any trade or business (whether or not
incorporated) which is under common control with an
operator or employer.
SEC. 403. ATTORNEYS' FEES AND MEDICAL EXPENSES PAYMENT PROGRAM.
(a) Program Established.--
(1) In general.--Not later than 180 days after the
date of enactment of the Black Lung Benefits
Improvement Act of 2022, the Secretary shall establish
a payment program to pay attorneys' fees and other
reasonable and unreimbursed medical expenses incurred
in establishing the claimant's case, using amounts from
the fund, to the attorneys of claimants in qualifying
claims.
(2) Qualifying claim.--A qualifying claim for
purposes of this section is a contested claim for
benefits under this title for which a final order has
not been entered within two years of the filing of the
claim.
(3) Use of payments from the fund.--Notwithstanding
any other provision of law, amounts in the fund shall
be available for payments authorized by the Secretary
under this section.
(b) Payments Authorized.--
(1) Attorneys' fees.--If a claimant for benefits
under this title obtains a proposed decision and order
from a district director with an award of benefits for
a qualifying claim, or an award for a qualifying claim
before an administrative law judge, the district
director may approve attorneys' fees for work done
before such director in an amount not to exceed $1,500
and an administrative law judge may approve attorneys'
fees for work done before such judge in an amount not
to exceed $3,000. The Secretary shall, through the
program under this section, pay such amounts approved.
(2) Medical expenses.--If a claimant for benefits
under this title obtains a proposed decision and order
from a district director with an award of benefits for
a qualifying claim, or an award for a qualifying claim
before an administrative law judge, such district
director and administrative law judge may each approve
an award to the claimant's attorney of reasonable and
unreimbursed medical expenses incurred in establishing
the claimant's case in an amount not to exceed $1,500.
The Secretary shall, through the program under this
section, pay such amounts approved.
(3) Maximum.--The program established under this
section shall not pay more than a total of $4,500 in
attorneys' fees nor more than $3,000 in medical
expenses for any single qualifying claim.
(c) Reimbursement of Funds.--In any case in which a
qualifying claim results in a final order awarding
compensation, the liable operator shall reimburse the fund for
any fees or expenses paid under this section, subject to
enforcement by the Secretary under section 424 and in the same
manner as compensation orders are enforced under section 21(d)
of the Longshore and Harbor Workers' Compensation Act (33
U.S.C. 921(d)).
(d) Additional Program Rules.--Nothing in this section shall
limit or otherwise affect an operator's liability for any
attorneys' fees, medical expenses, or other allowable and
unreimbursed expenses awarded by the district director or an
administrative law judge that were not paid by the program
under this section. Nothing in this section shall limit or
otherwise affect the Secretary's authority to use amounts in
the fund to pay approved attorneys' fees and other allowable
and unreimbursed expenses in claims for benefits under this
title for which a final order awarding compensation has been
entered and the operator is unable or refuses to pay.
(e) No Recoupment.--Any payment for attorneys' fees or
medical expenses made by the Secretary under this section shall
not be recouped from the claimant or the claimant's attorney.
Part B--Claims for Benefits Filed on or Before December 31, 1973
Sec. 411. [(a) The Secretary shall, in accordance with the
provisions of this part, and the regulations promulgated by him
under this part, make payments of benefits in respect of total
disability of any miner due to pneumoconiosis, and in respect
of the death of any miner whose death was due to pneumoconiosis
or, except with respect to a claim filed under part C of this
title on or after the effective date of the Black Lung Benefits
Amendments of 1981, who at the time of his death was totally
disabled by pneumoconiosis.] (a) The Secretary shall, in
accordance with the provisions of this title, and the
regulations promulgated by the Secretary under this title, make
payments of benefits in respect of--
(1) total disability of any miner due to
pneumoconiosis;
(2) the death of any miner whose death was due to
pneumoconiosis;
(3) total disability of any miner at the time of the
miner's death with respect to a claim filed under part
C prior to January 1, 1982;
(4) survivors' benefits for any survivor's claim
filed after January 1, 2005, that is pending on or
after March 23, 2010, where the miner is found entitled
to receive benefits on a claim filed under part C; and
(5) survivors' benefits where the miner is found
entitled to receive benefits on a claim filed under
part C before January 1, 1982.
(b) The Secretary shall by regulation prescribe standards for
determining for purposes of section 411(a) whether a miner is
totally disabled due to pneumoconiosis and for determining
whether the death of a miner was due to pneumoconiosis.
Regulations required by this subsection shall be promulgated
and published in the Federal Register at the earliest
practicable date after the date of enactment of this title, and
in no event later than the end of the third month following the
month in which this title is enacted. Final regulations
required for implementation of any amendments to this title
shall be promulgated and published in the Federal Register at
the earliest practicable date after the date of enactment of
such amendments, and in no event later than the end of the
fourth month following the month in which such amendments are
enacted. Such regulations may be modified or additional
regulations promulgated from time to time thereafter.
(c) For purposes of this section--
(1) If a miner who is suffering or suffered from
pneumoconiosis was employed for ten years or more in
one or more coal mines there shall be a rebuttable
presumption that [his pneumoconiosis] the miner's
pneumoconiosis arose out of such employment.
(2) If a deceased miner was employed for ten years or
more in one or more coal mines and died from a
respirable disease there shall be rebuttable
presumption that [his death] the miner's death was due
to pneumoconiosis. The provisions of this paragraph
shall not apply with respect to claims filed on or
after the effective date of the Black Lung Benefits
Amendments of 1981.
[(3) If a miner is suffering or suffered from a
chronic dust disease of the lung which (A) when
diagnosed by chest roentgenogram, yields one or more
large opacities (greater than one centimeter in
diameter) and would be classified in category A, B or C
in the International Classification of Radiographs of
the Pneumoconioses by the International Labor
Organization, (B) when diagnosed by biopsy or autopsy
yields massive lesions in the lung, or (C) when
diagnosis is made by other means, would be a condition
which could reasonably be expected to yield results
described in clause (A) or (B) if diagnosis had been
made in the manner prescribed in clause (A) or (B),
then there shall be an irrebuttable presumption that he
is a totally disabled due to pneumoconiosis or that his
death was due to pneumoconiosis, or that at the time of
his death he was totally disabled by pneumoconiosis. as
the case may be.]
(3)(A) If x-ray, CT scan, biopsy, autopsy, or other
medically accepted and relevant test or procedure
establishes that a miner is suffering or has suffered
from a chronic dust disease of the lung, diagnosed as
complicated pneumoconiosis or progressive massive
fibrosis (as determined in accordance with subparagraph
(B)), then there shall be an irrebuttable presumption
that such miner is totally disabled due to
pneumoconiosis, that the miner's death was due to
pneumoconiosis, or that at the time of death the miner
was totally disabled by pneumoconiosis, as the case may
be.
(B) For purposes of subparagraph (A), complicated
pneumoconiosis or progressive massive fibrosis can be
established by any of the following:
(i) A chest radiograph, which yields one or
more large opacities whose greatest diameter
exceeds 1 centimeter and would be classified in
Category A, B, or C in the International
Classification of Radiographs of Pneumoconiosis
by the International Labor Organization, in the
absence of more probative evidence sufficient
to establish that the etiology of the large
opacity is not pneumoconiosis.
(ii) A chest CT scan, which yields one or
more large opacities whose greatest diameter
exceeds 1 centimeter, in the absence of more
probative evidence sufficient to establish that
the etiology of the large opacity is not
pneumoconiosis.
(iii) A lung biopsy or autopsy, which would
yield a lesion at least 1 centimeter in its
long axis diameter if measured at the time of
gross dissection.
(iv) A diagnosis by other means that would
reasonably be expected to yield results
described in clause (i), (ii), or (iii).
(4) if a miner was employed for fifteen years or more
in one or more underground coal mines, and if there is
a chest roentgenogram submitted in connection with such
miner's, his widow's, his child's, his parent's, his
brother's, his sister's, or his dependent's claim under
this title and it is interpreted as negative with
respect to the requirements of paragraph (3) of this
subsection, and if other evidence demonstrates the
existence of a totally disabling respiratory or
pulmonary impairment, then there shall be a rebuttable
presumption that such miner is totally disabled due to
pneumoconiosis, that this death was due to
pneumoconiosis, or that at the time of his death he was
totally disabled by pneumoconiosis. In the case of a
living miner, a wife's affidavit may not be used by
itself to establish the presumption. The Secretary
shall not apply all or a portion of the requirement of
this paragraph that the miner worked in an underground
mine where he determines that conditions of a miner's
employment in a coal mine other than an underground
mine were substantially similar to conditions in an
underground mine. The Secretary may rebut such
presumption only by establishing that (A) such miner
does not, or did not, have pneumoconiosis, or that (B)
his respiratory of pulmonary impairment did not arise
out of, or in connection with, employment in a coal
mine.
(5) In the case of a miner who dies on or before the
date of the enactment of the Black Lung Benefits Reform
Act of 1977 who was employed for 25 years or more in
one or more coal mines before June 30, 1971, the
eligible survivors of such miner shall be entitled to
the payment of benefits, at the rate applicable under
section 412(a)(2), unless it is established that at the
time of his or her death such miner was not partially
or totally disabled due to pneumoconiosis. Eligible
survivors shall, upon request by the Secretary, furnish
such evidence as is available with respect to the
health of the miner at the time of his or her death.
The provisions of this paragraph shall not apply with
respect to claims filed on or after the day that is 180
days after the effective date of the Black Lung
Benefits Amendments of 1981.
(d) Nothing in subsection (c) shall be deemed to affect the
applicability of subsection (a) in the case of a claim where
the presumptions provided for therein are inapplicable.
Sec. 412. (a) Subject to the provisions of subsection (b) of
this section, benefit payments shall be made by the Secretary
under this part as follows:
[(1) In the case of total disability of a miner due to
pneumoconiosis, the disabled miner shall be paid benefits
during the disability at a rate equal to 37\1/2\ per centum of
the monthly pay rate for Federal employees in grade GS-2, step
1.
[(2) In the case of death of a miner due to pneumoconiosis
or, except with respect to a claim filed under part C of this
title on or after the effective date of the Black Lung Benefits
Amendments of 1981, of a miner receiving benefits under this
part, benefits shall be paid to his widow (if any) at the rate
the deceased miner would receive such benefits if he were
totally disabled.]
(1) In the case of total disability of a miner due to
pneumoconiosis, the disabled miner shall be paid benefits
during the disability--
(A) for any calendar year preceding January 1, 2022,
at a rate equal to 37\1/2\ percent of the monthly pay
rate for Federal employees in grade GS-2, step 1;
(B) for the calendar year beginning on January 1,
2022, at a rate of $8,834.01 per year, payable in 12
equal monthly payments; and
(C) for each calendar year thereafter, at a rate
equal to the product of the rate in effect under this
paragraph for the calendar year immediately preceding
such calendar year multiplied by the ratio (not less
than 1) of--
(i) the Consumer Price Index for Urban Wage
Earners and Clerical Workers (CPI-W, as
published by the Bureau of Labor Statistics of
the Department of Labor) for the calendar year
immediately preceding such calendar year, to
(ii) the CPI-W for the second calendar year
preceding such calendar year.
(2) In the case of a surviving spouse--
(A) of a miner whose death is due to pneumoconiosis;
(B) in a claim filed after January 1, 2005, and that
is pending on or after March 23, 2010, of a miner who
is found entitled to receive benefits on a claim filed
under part C;
(C) of a miner who is found entitled to receive
benefits on a claim filed under part C before January
1, 1982; or
(D) in a claim filed under part C before January 1,
1982, of a miner who was totally disabled by
pneumoconiosis at the time of the miner's death,
benefits shall be paid to the miner's surviving spouse at the
rate the deceased miner would receive such benefits if he were
totally disabled.
(3)(A) [In the case of the child or children of a miner whose
death is due to pneumoconiosis or, except with respect to a
claim filed under part C of this title on or after the
effective date of the Black Lung Benefits Amendments of 1981,
of a miner who is receiving benefits under this part at the
time of his death or who was totally disabled by pneumoconiosis
at the time of his death, in the case of the child or children
of a widow who is receiving benefits under this part at the
time of her death, and in the case of any child or children
entitled to the payment of benefits under paragraph (5) of
section 411(c)] In the case of the child or children of a miner
described in subparagraph (B), benefits shall be paid to such
child or children as follows: If there is one such child, [he]
the child shall be paid benefits at the rate specified in
paragraph (1). If there is more than one such child, the
benefits paid shall be divided equally among them and shall be
paid at a rate equal to the rate specified in paragraph (1),
increased by 50 per centum of such rate if there are two such
children, by 75 per centum of such rate if there are three such
children, and by 100 per centum of such rate if there are more
than three such children: Provided, That benefits shall only be
paid to a child for so long as [he] the child meets the
criteria for the term ``child'' contained in section 402(g):
And provided further, That no entitlement to benefits as a
child shall be established under this paragraph (3) for any
month for which entitlement to benefits as a [widow] surviving
spouse is established under paragraph (2).
(B) Subparagraph (A) shall apply in the case of any child or
children--
(i) of a miner whose death is due to pneumoconiosis;
(ii) in a claim filed after January 1, 2005, that is
pending on or after March 23, 2010, of a miner who is
found entitled to receive benefits on a claim filed
under part C;
(iii) of a miner who is found entitled to receive
benefits on a claim filed under part C before January
1, 1982;
(iv) in a claim filed under part C before January 1,
1982, of a miner who was totally disabled by
pneumoconiosis at the time of the miner's death;
(v) of a surviving spouse who is found entitled to
receive benefits under this part at the time of the
surviving spouse's death; or
(vi) entitled to the payment of benefits under
paragraph (5) of section 411(c).
(4) In the case of an individual entitled to benefit payments
under clause (1) or (2) of this subsection who has one or more
dependents, the benefit payments shall be increased at the rate
of 50 per centum of such benefit payments, if such individual
has one dependent, 75 per centum if such individual has two
dependents, and 100 per centum if such individual has three or
more dependents.
(5) [In the case of the dependent parent or parents of a
miner whose death is due to pneumoconiosis, or, except with
respect to a claim filed under part C of this title on or after
the effective date of the Black Lung Benefits Amendments of
1981, of a miner who is receiving benefits under this part at
the time of his death who was totally disabled by
pneumoconiosis at the time of death, and who is not survived at
the time of his death by a widow or a child, in the case of the
dependent surviving brother(s) or sister(s) of such a miner who
is not survived at the time of his death by a widow, child, or
parent, in the case of the dependent parent or parents of a
miner (who is not survived at the time of his or her death by a
widow or a child) who are entitled to the payment of benefits
under paragraph (5) of section 411(c), or in the case of the
dependent surviving brother(s) or sister(s) of a miner (who is
not survived at the time of his or her death by a widow, child,
or parent) who are entitled to the payment of benefits under
paragraph (5) of section 411(c), benefits shall be paid under
this part to such parent(s), or to such brother(s), or
sister(s), at the rate specified in paragraph (3) (as if such
parent(s) or such brother(s) or sister(s), were the children of
such miner).] In the case of the dependent parent or parents of
a miner who is not survived at the time of death by a surviving
spouse or a child and (i) whose death is due to pneumoconiosis,
(ii) in a claim filed after January 1, 2005, that is pending on
or after March 23, 2010, who is found entitled to receive
benefits on a claim filed under part C, (iii) who is found
entitled to receive benefits on a claim filed under part C
before January 1, 1982, or (iv) in a claim filed under part C
before January 1, 1982, who was totally disabled by
pneumoconiosis at the time of the miner's death; in the case of
the dependent surviving brother(s) or sister(s) of such a miner
who is not survived at the time of the miner's death by a
surviving spouse, child, or parent; in the case of the
dependent parent or parents of a miner (who is not survived at
the time of the miner's death by a surviving spouse or child)
who are entitled to the payment of benefits under paragraph (5)
of section 411(c); or in the case of the dependent surviving
brother(s) or sister(s) of a miner (who is not survived at the
time of the miner's death by a surviving spouse, child, or
parent) who are entitled to the payment of benefits under
paragraph (5) of section 411(c), benefits shall be paid under
this part to such parent(s), or to such brother(s), or
sister(s), at the rate specified in paragraph (3) (as if such
parent(s) or such brother(s) or sister(s), were the children of
such miner). In determining for purposes of this paragraph
whether a claimant bears the relationship as the miner's
parent, brother, or sister, the Secretary shall apply legal
standards consistent with those applicable to relationship
determination under title II of the Social Security Act. No
benefits to a sister or brother shall be payable under this
paragraph for any month beginning with the month in which he or
she receives support from his or her spouse, or marries.
Benefits shall be payable under this paragraph to a [brother
only if he] brother or sister only if the brother or sister
is--
(1)(A) under eighteen years of age, or
(B) under a disability as defined in section 223(d)
of the Social Security Act which began before the age
specified in section 202(d)(1)(B)(ii) of such Act, or
in the case of a student, [before he ceased] before the
brother or sister ceased to be a student, or
(C) a student as defined in section 402(g); or
(2) who is, at the time of the miner's death,
disabled as determined in accordance with section
223(d) of the Social Security Act, during such
disability. Any benefit under this paragraph for a
month prior to the month in which a claim for such
benefit is filed shall be reduced to any extent that
may be necessary, so that it will not render erroneous
any benefit which, before the filing of such claim, the
Secretary has certified for payment for such prior
months. As used in this paragraph, ``dependent'' means
that during the one year period prior to and ending
with such miner's death, such parent, brother, or
sister was living in the miner's household, and was,
during such period, totally dependent on the miner for
support. Proof of such support shall be filed by such
claimant within two years after the month in which this
amendment is enacted, or within two years after the
miner's death, whichever is the later. Any such proof
which is filed after the expiration of such period
shall be deemed to have been filed within such period
if it is shown to the satisfaction of the Secretary
that there was good cause for failure to file such
proof within such period. The determination of what
constitutes ``living in the miner's household'',
``totally dependent upon the miner for support,'' and
``good cause,'' shall for purposes of this paragraph be
made in accordance with regulations of the Secretary.
Benefit payments under this paragraph to a parent,
brother, or sister, shall be reduced by the amount by
which such payments would be reduced on account of
excess earnings of such parent, brother, or sister,
respectively, under section 203(b)-(1) of the Social
Security Act, as if the benefit under this paragraph
were a benefit under section 202 of such Act.
(6) If an individual's benefits would be increased under
paragraph (4) of this subsection because he or she has one or
more dependents, and it appears to the Secretary that it would
be in the interest of any such dependent to have the amount of
such increase in benefits (to the extent attributable to such
dependent) certified to a person other than such individual,
then the Secretary may, under regulations [prescribed by him]
prescribed by such Secretary, certify the amount of such
increase in benefits (to the extent so attributable) not to
such individual but directly to such dependent or to another
person for the use and benefit of such dependent; and any
payment made under this clause, if otherwise valid under this
title, shall be a complete settlement and satisfaction of all
claims, rights, and interests in and to such payment.
(b) Notwithstanding subsection (a), benefit payments under
this section to a miner or [his] such miner's [widow] surviving
spouse, child, parent, brother, or sister shall be reduced, on
a monthly or other appropriate basis, by an amount equal to any
payment received by such miner or [his] such miner's [widow]
surviving spouse, child, parent, bother, or sister under the
workmen's compensation, unemployment compensation, or
disability insurance laws of [his] such miner's State on
account of the disability of such miner due to pneumoconiosis,
and the amount by which such payment would be reduced on
account of excess earnings of such miner under section 203 (b)
through (l) of the Social Security Act if the amount paid were
a benefit payable under section 202 of such Act. This part
shall not be considered a workmen's compensation law or plan
for purposes of section 224 of such Act.
(c) Benefits payable under this part shall be deemed not to
be income for purposes of the [Internal Revenue Code of 1954]
Internal Revenue Code of 1986.
Sec. 413. (a) Except as otherwise provided in section 414 of
this part, no payment of benefits shall be made under this part
except pursuant to a claim filed therefor on or before December
31, 1973, in such manner, in such form, and containing such
information, as the Secretary shall by regulation prescribe.
(b) No claim for benefits under this part shall be denied
solely on the basis of the results of a chest roentgenogram. In
determining the validity of claims under this part, all
relevant evidence shall be considered, including, where
relevant, medical tests such as blood gas studies, X-ray
examination, electrocardiogram, pulmonary function studies, or
physical performance tests, and any medical history, evidence
submitted by the claimant's physician, or [his wife's
affidavits] affidavits of the miner's spouse, and in the case
of a deceased miner, other appropriate affidavits of persons
with knowledge of the miner's physical condition, and other
supportive materials. Where there is no medical or other
relevant evidence in the case of a deceased miner, such
affidavits, from persons not eligible for benefits in such case
with respect to claims filed on or after the effective date of
the Black Lung Benefits Amendments of 1981, shall be considered
to be sufficient to establish that the miner was totally
disabled due to pneumoconiosis or that his or her death was due
to pneumoconiosis. In any case, other than that involving a
claim filed on or after the effective date of the Black Lung
Benefits Amendments of 1981, in which there is other evidence
that a miner has a pulmonary or respiratory impairment, the
Secretary shall accept a board certified or board eligible
radiologist's, interpretation of a chest roentgenogram which is
of a quality sufficient to demonstrate the presence of
pneumoconiosis submitted in support of a claim for benefits
under this title if such roentgenogram has been taken by a
radiologist or qualified technician, except where the Secretary
has reason to believe that the claim has been fraudulently
represented. In order to insure that any such roentgenogram is
of adequate quality to demonstrate the presence of
pneumoconiosis, and in order to provide for uniform quality in
the roentgenograms, the Secretary of Labor may, by regulation,
establish specific requirements for the techniques used to take
roentgenograms of the chest. Unless the Secretary has good
cause to believe that an autopsy report is not accurate, or
that the condition of the miner is being fraudulently
misrepresented, the Secretary shall accept such autopsy report
concerning the presence of pneumoconiosis and the stage of
advancement of pneumoconiosis. Claimants under this part shall
be reimbursed for reasonable medical expenses incurred by them
in establishing their claims. For purposes of determining total
disability under this part, the provisions of subsections (a),
(b), (c), (d), and (g) of section 221 of such Act shall be
applicable. The provisions of sections 204, 205 (a), (b), (d),
(e), (g), (h), (j), (k), (l), and (n), 206, 207, and 208 of the
Social Security Act shall be applicable under this part with
respect to a miner, [widow] surviving spouse, child, parent,
brother, sister, or dependent, as if benefits under this part
were benefits under title II of such Act. [Each miner who files
a claim for benefits under this title shall upon request be
provided an opportunity to substantiate his or her claim by
means of a complete pulmonary evaluation.]
(c) No claim for benefits under this section shall be
considered unless the claimant has also filed a claim under the
applicable State workmen's compensation law prior to or at the
same time [his claim] the claim was filed for benefits under
this section; except that the foregoing provisions of this
paragraph shall not apply in any case in which the filing of a
claim under such law would clearly be futile because the period
within which such a claim may be filed thereunder has expired
or because pneumoconiosis is not compensable under such law, or
in any other situation in which, in the opinion of the
Secretary, the filing of a claim would clearly be futile.
(d) No miner who is engaged in coal mine employment shall
(except as provided in section 411(c)(3)) be entitled to any
benefits under this part while so employed. Any miner who has
been determined to be eligible for benefits pursuant to a claim
filed while such miner was engaged in coal mine employment
shall be entitled to such benefits if his or her employment
terminates within one year after the date such determination
becomes final.
Sec. 414. (a)(1) No claim for benefits under this part on
account of total disability of a miner shall be considered
unless it is filed on or before December 31, 1973, or, in the
case of a claimant who is a [widow, within six months after the
death of her husband] surviving spouse, within six months after
the death of the miner or by December 31, 1973, whichever is
the later.
(2) In the case of a claim by a child this paragraph shall
apply, notwithstanding any other provision of this part.
(A) If such claim is filed within six months following the
month in which this paragraph is enacted, and if entitlement to
benefits is established pursuant to such claim, such
entitlement shall be effective retroactively from December 30,
1969, or from the date such child would have been first
eligible for such benefit payments had section 412(a)(3) been
applicable since December 30, 1969, whichever is the lesser
period. If on the date such claim is filed the claimant is not
eligible for benefit payments, but was eligible at any period
of time during the period from December 30, 1969, to the date
such claim is filed, entitlement shall be effective for the
duration of eligibility during such period.
(B) If such claim is filed after six months following the
month in which this paragraph is enacted, and if entitlement to
benefits is established pursuant to such claim, such
entitlement shall be effective retroactively from a date twelve
months preceding the date such claim is filed, or from the date
such child would have been first eligible for such benefit
payments had section 412(a)(3) been applicable since December
30, 1969, whichever is the lesser period. If on the date such
claim is filed the claimant is not eligible for benefit
payments, but was eligible at any period of time during the
period from a date twelve months preceding the date such claim
is filed, to the date such claim is filed, entitlements shall
be effective for the duration of eligibility during such
period.
(C) No claim for benefits under this part, in the case of a
claimant who is a child, shall be considered unless it is filed
within six months after the death of [his] the child's father
or mother (whichever last occurred) or by December 31, 1973,
whichever is the later.
(D) Any benefit under subparagraph (A) or (B) for a month
prior to the month in which a claim is filed shall be reduced,
to any extent that may be necessary, so that it will not render
erroneous any benefit which, before the filing of such claim,
the Secretary has certified for payment for such prior month.
(3) No claim for benefits under this part, in the case of a
claimant who is a parent, brother, or sister shall be
considered unless it is filed within six months after the death
of the miner or by December 31, 1973, whichever is the later.
(b) No benefits shall be paid under this part after December
31, 1973, if the claim therefor was filed after June 30, 1973.
(c) No benefits under this part shall be payable for any
period prior to the date a claim therefor is filed.
(d) No benefits shall be paid under this part to the
residents of any State which, after the date of enactment of
this Act, reduces the benefits payable to persons eligible to
receive benefits under this part, under its State laws which
are applicable to its general work force with regard to
workmen's compensation, unemployment compensation, or
disability insurance.
(e) No benefits shall be payable to a [widow] surviving
spouse, child, parent, brother, or sister under this part on
account of the death of a miner unless (1) benefits under this
part were being paid to such miner with respect to disability
due to pneumoconiosis prior to [his death] the miner's death,
(2) the death of such miner occurred prior to January 1, 1974,
or (3) any such individual is entitled to benefits under
paragraph (5) of section 411(c).
Sec. 415. (a) Notwithstanding any other provision in this
title, for the purpose of assuring the uninterrupted receipt of
benefits by claimants at such time as responsibility for
administration of the benefits program is assumed by either a
State workmen's compensation agency or the Secretary of Labor,
any claim for benefits under this part filed during the period
from July 1, 1973 to December 31, 1973, shall be considered and
determined in accordance with the procedures of this section.
With respect to any such claim--
(1) Such claim shall be determined and, where
appropriate under this part or section 9501(d) of the
[Internal Revenue Code of 1954] Internal Revenue Code
of 1986, benefits shall be paid with respect to such
claim by the Secretary of Labor.
(2) The Secretary of Labor shall promptly notify any
operator who [he] such Secretary believes, on the basis
of information contained in the claims, or any other
information available to [him] such Secretary, may be
liable to pay benefits to the claimant under part C of
this title for any month after December 31, 1973.
(3) In determining such claims, the Secretary of
Labor shall, to the extent appropriate, follow the
procedures described in sections 19 (b), (c), and (d)
of Public law 803, 69th Congress (44 Stat. 1424,
approved March 4, 1927), as amended.
(4) Any operator who has been notified of the
pendency of a claim under paragraph (2) of this
subsection shall be bound by the determination of the
Secretary of Labor on such claim as if the claim had
been filed pursuant to part C of this title and section
422 thereof had been applicable to such operator.
Nothing in this paragraph shall require any operator to
pay any benefits for any month prior to January 1,
1974.
(b) The Secretary of Labor may issue such regulations as are
necessary or appropriate to carry out the purpose of this
section.
Part C--Claims for Benefits After December 31, 1973
Sec. 421. (a) On and after January 1, 1974, any claim for
benefits for death or total disability due to pneumoconiosis
shall be filed pursuant to the applicable State workmen's
compensation law, except that during any period when miners or
their surviving [widows] spouses, children, parents, brothers,
or sisters, as the case may be, are not covered by a State
workmen's compensation law which provides adequate coverage for
pneumoconiosis, and in any case in which benefits based upon
eligibility under paragraph (5) of section 411(c) are involved.
they shall be entitled to claim benefits under this part.
(b)(1) For purposes of this section, a State workmen's
compensation law shall not be deemed to provide adequate
coverage for pneumoconiosis during any period unless it is
included in the list of State laws found by the Secretary to
provide such adequate coverage during such period. The
Secretary shall, no later than October 1, 1972, publish in the
Federal Register a list of State workmen's compensation laws
which provide adequate coverage for pneumoconiosis and shall
revise and republish in the Federal Register such list from
time to time, as may be appropriate to reflect changes in such
State laws due to legislation or judicial or administrative
interpretation.
(2) The Secretary shall include a State workmen's
compensation law on such list during any period only if [he]
such Secretary finds that during such period under such law--
(A) benefits must be paid for total disability or
death of a miner due to pneumoconiosis, except that (i)
such law shall not be required to provide such benefits
where the miner's last employment in a coal mine
terminated before the Secretary's approval of the State
law pursuant to this section; and (ii) each operator of
a coal mine shall secure the payment of benefits
pursuant to section 423 with respect to any miner whose
last employment in a coal mine terminated before the
Secretary's approval of the State law pursuant to this
section;
(B) the amount of such cash benefits is substantially
equivalent to or greater than the amount of benefits
prescribed by section 412(a) of this title;
(C) the standards for determining death or total
disability due to pneumoconiosis are substantially
equivalent to section 402(f) of this title and to those
standards established under this part, and by the
regulations of the Secretary promulgated under this
part;
(D) any claim for benefits on account of total
disability of a miner due to pneumoconiosis is deemed
to be timely filed if such claim in filed within three
years after a medical determination of total disability
due to pneumoconiosis;
(E) there are in effect provisions with respect to
prior and successor operators which are substantially
equivalent to the provisions contained in section
433(i) of this part; and
(F) there are applicable such other provisions,
regulations or interpretations, which are consistent
with the provisions contained in Public Law 803, 69th
Congress (44 Stat. 1424, approved March 4, 1927), as
amended, with are applicable under section 422(a), but
are not inconsistent with any of the criteria set forth
in subparagraphs (A) through (E) of this paragraph, as
the Secretary, in accordance with regulations
[promulgated by him] promulgated by such Secretary,
determines to be necessary or appropriate to assure
adequate compensation for total disability or death due
to pneumoconiosis.
The action of the Secretary in including or failing to include
any State workmen's compensation law on such list shall be
subject to judicial review exclusively in the United States
court of appeals for the circuit in which the State is located
or the United States Court of Appeals for the District of
Columbia.
(c) Final regulations required for implementation of any
amendments to this part shall be promulgated and published in
the Federal Register at the earliest practicable date after the
date of enactment of such amendments, and in no event later
then the end of the sixth month following the month in which
such amendments are enacted.
Sec. 422. (a) Subject to section 28(h)(1) of the Longshore
and Harbor Workers' Compensation Act Amendments of 1984, during
any period after December 31, 1973, in which a State workmen's
compensation law is not included on the list published by the
Secretary under section 421(b) of this part, the provisions of
Public Law 803, 69th Congress (44 Stat. 1424, approved March 4,
1927), as amended, and as it may be amended from time to time
(other than the provisions contained in sections 1, 2, 3, 4,,
8, 9, 10, 12, 13, 29, 30, 31, 32, 33, 37, 38, 41, 43, 44, 45,
46, 47, 48, 49, 50, and 51 thereof), shall (except as otherwise
provided in this subsection or by regulations of the Secretary
and except that references in such Act to the employer shall be
considered to refer to the trustees of the fund, as the
Secretary considers appropriate and as is consistent with the
provisions of section 9501(d) of the [Internal Revenue Code of
1954] Internal Revenue Code of 1986), be applicable to each
operator of a coal mine in such State with respect to death or
total disability due to pneumoconiosis arising out of
employment in such mine, or with respect to entitlements
established in paragraph (5) of section 411(c). In
administering this part, the Secretary is authorized to
prescribe in the Federal Register such additional provisions,
not inconsistent with those specifically excluded by this
subsection, as [he] such Secretary deems necessary to provide
for the payment of benefits by such operator to persons
entitled thereto as provided in this part and thereafter those
provisions shall be applicable to such operator.
(b) During any such period each such operator shall be liable
for and shall secure the payment of benefits, as provided in
this section and section 423 of this part. An employer, other
than an operator of a coal mine, shall not be required to
secure the payment of such benefits with respect to any
employee of such employer to the extent such employee is
engaged in the transportation of coal or in coal mine
construction. Upon determination by the Secretary of the
eligibility of the employee, the Secretary may require such
employer to secure a bond or otherwise guarantee the payment of
such benefits to the employee.
(c) Benefits shall be paid during such period by each such
operator under this section to the categories of persons
entitled to benefits under section 412(a) of this title in
accordance with the regulations of the Secretary applicable
under this section: Provided, That, except as provided in
subsection (i) of this section, no benefit shall be payable by
any operator on account of death or total disability due to
pneumoconiosis (1) which did not arise, at least in part, out
of employment in a mine during a period after December 31,
1969, when it was operated by such operator; of (2) which was
the subject of a claim denied before March 1, 1978, and which
is or has been approved in accordance with the provisions of
section 435.
(d) Benefits payable under this section shall be paid on a
monthly basis and, except as otherwise provided in this
section, such payments shall be equal to the amounts specified
in section 412(a) of this title. If payment is not made within
the time required, interest shall accrue to such amounts at the
rates set forth in section 424(b)(5) of this title for interest
owed to the fund. With respect to payment withheld pending
final adjudication of liability, in the case of claims filed on
or after the effective date of the Black Lung Benefits
Amendments of 1981, such interest shall commence to accumulate
30 days after the date of the determination that such an award
should be made.
(e) No payment of benefits shall be required under this
section:
(1) except pursuant to a claim filed therefor in such
manner, in such form, and containing such information, as the
Secretary shall by regulation prescribe; or
(2) for any period prior to January 1, 1974.
(f) Any claim for benefits by a miner under this section
shall be filed within three years after whichever of the
following occurs later--
(1) a medical determination of total disability due to
pneumoconiosis; or
(2) the date of the enactment of the Black Lung Benefits
Reform Act of 1977.
(g) The amount of benefits payable under this section shall
be reduced, on a monthly or other appropriate basis, by the
amount of any compensation received under or pursuant to any
Federal or State workmen's compensation law because of death or
disability due to pneumoconiosis. In addition, the amount of
benefits payable under this section with respect to any claim
filed on or after the effective date of the Black Lung Benefits
Amendments of 1981 shall be reduced, on a monthly or other
appropriate basis, by the amount by which such benefits would
be reduced on account of excess earnings of such miner under
section 203 (b) through (l) of the Social Security Act if the
amount paid were a benefit payable under section 202 of such
Act.
(h) The Secretary of Labor shall by regulation establish
standards, which may include appropriate presumptions, for
determining whether pneumoconiosis arose out of employment in a
particular coal mine or mines. The Secretary may also, by
regulation, establish standards for apportioning liability for
benefits under this subsection among more than one operator,
where such apportionment is appropriate.
(i)(1) During any period in which this section is applicable
to the operator of a coal mine who on or after January 1, 1970,
acquired such mine or substantially all the assets thereof,
from a person (hereinafter in this subsection referred to as a
``prior operator'') who was an operator of such mine, or owner
of such assets on or after January 1, 1970, such operator shall
be liable for and shall, in accordance with section 423, secure
the payment of all benefits which would have been payable by
the prior operator under this section with respect to miners
previously employed by such prior operator as if the
acquisition had not occurred and the prior operator had
continued to be an operator of a coal mine.
(2) Nothing in this subsection shall relieve any prior
operator of any liability under this section.
(3)(A) For purposes of paragraph (1) of this subsection, the
provisions of this paragraph shall apply to corporate
reorganizations, liquidations, and such other transactions as
are specified in this paragraph.
(B) If an operator ceases to exist by reason of a
reorganization or other transaction or series of transactions
which involves a change in identity, form, or place of business
or organization, however effected, the successor operator or
other corporate or business entity resulting from such
reorganization or other change shall be treated as the operator
to whom this section applies.
(C) If an operator ceases to exist by reason of a liquidation
into a parent or successor corporation, the parent or successor
corporation shall be treated as the operator to whom this
section applies.
(D) If an operator ceases to exist by reason of a sale of
substantially all his or her assets, or as the result of a
merger, consolidation, or division, the successor operator,
corporation, or other business entity shall be treated as the
operator to whom this section applies.
(4) In any case in which there is a determination under
section 9501(d) of the [Internal Revenue Code of 1954] Internal
Revenue Code of 1986 that no operator is liable for the payment
of benefits to a claimant, nothing in this subsection may be
construed to require the payment of benefits to a claimant by
or on behalf of any operator.
(j) Notwithstanding the provisions of this section, section
9501 of the [Internal Revenue Code of 1954] Internal Revenue
Code of 1986 shall govern the payment of benefits in cases--
(1) described in section 9501(d)(1) of the [Internal
Revenue Code of 1954] Internal Revenue Code of 1986;
(2) in which the miner's last coal mine employment
was before January 1, 1970; or
(3) in which there was a claim denied before March 1,
1978, and such claim is or has been approved in
accordance with the provisions of section 435.
(k) The Secretary shall be a party in any proceeding relative
to a claim for benefits under this part.
(l) In no case shall the eligible survivors of a miner who
was determined to be eligible to receive benefits under this
title at the time of his or her death be required to file a new
claim for benefits, or refile or otherwise revalidate the claim
of such miner,.
Sec. 423. (a) During any period in which a State workmen's
compensation law is not included on the list published by the
Secretary under section 421(b) each operator of a coal mine in
such State shall secure the payment of benefits for which [he]
such operator is liable under section 422 by (1) qualifying as
a self-insurer in accordance with regulations prescribed by the
Secretary, or (2) insuring and keeping insured the payment of
such benefits with any stock company or mutual company or
association, or with any other person or fund, including any
State fund, while such company, association, person or fund is
authorized under the laws of any State to insure workmen's
compensation.
(b) In order to meet the requirements of clause (2) of
subsection (a) of this section, every policy or contract of
insurance must contain--
(1) a provision to pay benefits required under
section 422, notwithstanding the provisions of the
State workmen's compensation law which may provide for
lesser payments;
(2) a provision that insolvency or bankruptcy of the
operator or discharge therein (or both) shall not
relieve the carrier from liability for such payments;
and
(3) such other provisions as the Secretary, by
regulation, may require.
(c) No policy or contract of insurance issued by a carrier to
comply with the requirements of clause (2) of subsection (a) of
this subsection shall be canceled prior to the date specified
in such policy or contract for its expiration until at least
thirty days have elapsed after notice of cancellation has been
sent by registered or certified mail to the Secretary and to
the operator at his last known place of business.
(d)(1) Any employer required to secure the payment of
benefits under this section who fails to secure such benefits
shall be subject to a civil penalty assessed by the Secretary
of not more than [$1,000] $25,000 for each day during which
such failure occurs. In any case where such employer is a
corporation, the president, chief executive officer, chief
operating officer, secretary, [and treasurer] treasurer, and
other responsible party thereof also shall be severally liable
to such civil penalty as provided in this subsection for the
failure of such corporation to secure the payment of benefits.
Such president, chief executive officer, chief operating
officer, secretary, [and treasurer] treasurer, and other
responsible party shall be severally personally liable, jointly
with such corporation, [for any benefit which may accrue under
this title in respect to any disability which may occur to any
employee of such corporation while it shall so fail to secure
the payment of benefits as required by this section.] for--
(A) any benefit which may accrue under this title in
respect to any disability which may occur to any
employee of such corporation while it shall so fail to
secure the payment of benefits as required by this
section; or
(B) in the event of bankruptcy or other permanent
abandonment of the obligation to secure the payment of
benefits, the actuarial present value of the benefits
to be paid by the fund under section 424(b)(1),
projected as of the date of failure to secure such
benefits, less any security recovered or surrendered,
plus interest.
(2) Any employer of a miner who knowingly transfers, sells,
encumbers, assigns, or in any manner disposes of, conceals,
secrets, or destroys any property belonging to such employer,
after any miner employed by such employer has filed a claim
under this title, and with intent to avoid the payment of
benefits under this title to such miner or his or her
dependents, shall be guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not more
than $1,000, or by imprisonment for not more than one year, or
both. In any case where such employer is a corporation, the
president, secretary, and treasurer thereof also shall be
severally liable for such penalty of imprisonment as well as
jointly liable with such corporation for such fine.
(3) This subsection shall not affect any other liability of
the employer under this part.
Sec. 424. (a) For purposes of this section, the term ``fund''
has the meaning set forth in section 402(h).
(b)(1) If--
(A) an amount is paid out of the fund to an
individual entitled to benefits under section 422, and
(B) the Secretary determines, under the provision of
sections 422 and 423, that an operator was required to
secure the payment of all or a portion of such
benefits,
then the operator is liable to the United States for repayment
to the fund of the amount of such benefits the payment of which
is properly attributed to [him] such operator plus interest
thereon. No operator or representative of operators may bring
any proceeding, or intervene in any proceeding, held for the
purpose of determining claims for benefits to be paid by the
fund, except that nothing in this section shall affect the
rights, duties, or liabilities of any operator in proceedings
under section 422 or section 423. In a case where no operator
responsibility is assigned pursuant to section 422 and 423, a
determination by the Secretary that the fund is liable for the
payment of benefits shall be final.
(2) If an operator liable to the fund under paragraph (1)
refuses to pay, after demand, the amount of such liability
(including interest), then there shall be a lien in favor of
the United States for such amount upon all property and rights
to property, whether real or personal, belonging to such
operator. The lien arises on the date on which such liability
is finally determined, and continues until it is satisfied or
becomes unenforceable by reason of lapse of time.
(3)(A) Except as otherwise provided under this subsection,
the priority of the lien shall be determined in the same manner
as under section 6323 of the [Internal Revenue Code of 1954]
Internal Revenue Code of 1986. That section shall be applied
for such purposes--
(i) by substituting ``lien imposed by section
424(b)(2) of the Federal Coal Mine Health and Safety
Act of 1969'' for ``lien imposed by section 6321'';
``operator liability lien'' for ``tax lien'';
``operator'' for ``taxpayer''; ``lien arising under
section 424(b) (2) of the Federal Coal Mine Health and
Safety Act of 1969'' for ``assessment of the tax'';
``payment of the liability is made to the Black Lung
Disability Trust Fund'' for ``satisfaction of a levy
pursuant to section 6332(b)''; and ``satisfaction of
operator liability'' for ``collection of any tax under
this title'' each place such terms appear; and
(ii) by treating all references to the ``Secretary''
as references to the Secretary of Labor.
(B) In the case of a bankruptcy or insolvency proceeding, the
lien imposed under paragraph (2) shall be treated in the same
manner as a lien for taxes due and owing to the United States
for purposes of the Bankruptcy Act or section 3466 of the
Revised Statutes (31 U.S.C. 191).
(C) For purposes of applying section 6323(a) of the [Internal
Revenue Code of 1954] Internal Revenue Code of 1986 to
determine the priority between the lien imposed under paragraph
(2) and the Federal tax lien, each shall be treated as a
judgment lien arising as of the time notice of such lien is
filed.
(D) For purposes of this subsection, notice of the lien
imposed under paragraph (2) shall be filed in the same manner
as under subsections (f) and (g) of section 6323 of the
[Internal Revenue Code of 1954] Internal Revenue Code of 1986.
(4)(A) In any case where there has been a refusal or neglect
to pay the liability imposed under paragraph (2), the Secretary
may bring a civil action in a district court of the United
States to enforce the lien of the United States under this
section with respect to such liability or to subject any
property, of whatever nature, of the operator, or in which he
has any right, title, or interest to the payment of such
liability.
(B) The liability imposed by paragraph (1) may be collected
at a proceeding in court if the proceeding is commenced within
6 years after the date on which the liability was finally
determined, or before the expiration of any period for
collection agreed upon in writing by the operator and the
United States before the expiration of such 6-year period. The
running of the period of limitation provided under this
subparagraph shall be suspended for any period during which the
assets of the operator are in the custody or control of any
court of the United States, or of any State, or the District of
Columbia, and for 6 months thereafter, and for any period
during which the operator is outside the United States if such
period of absence is for a continuous period of at least 6
months.
(5) The rate of interest under this subsection--
(A) for any period during calendar year 1982, shall
be 15 percent, and
(B) for any period after calendar year 1982, shall be
the rate established by section 6621 of the [Internal
Revenue Code of 1954] Internal Revenue Code of 1986
which is in effect for such period.
* * * * * * *
Sec. 427. (a) The Secretary of Health, Education, and Welfare
is authorized to enter into contracts with, and make grants to,
public and private agencies and organizations and individuals
for the construction, purchase, and operation of fixed-site and
mobile clinical facilities for [the analysis, examination, and
treatment of respiratory and pulmonary impairments in active
and inactive coal miners.] the analysis, examination, and
treatment of respiratory and pulmonary impairments in active
and inactive coal miners and for assistance on behalf of
miners, spouses, dependents, and other family members with
claims arising under this title. The Secretary shall coordinate
the making of such contracts and grants with the Appalachian
Regional Commission.
(b) The Secretary of Health, Education, and Welfare shall
initiate research within the National Institute for
Occupational Safety and Health, and is authorized to make
research grants to public and private agencies and
organizations and individuals for the purpose of devising
simple and effective tests to measure, detect, and treat
respiratory and pulmonary impairments in active and inactive
coal miners. Any grant made pursuant to this subsection shall
be conditioned upon all information, uses, products, processes,
patents, and other developments resulting from such research
being available to the general public, except to the extent of
such exceptions and limitations as the Secretary of Health,
Education, and Welfare may deem necessary in the public
interest.
(c) There is hereby authorized to be appropriated for the
purpose of subsection (a) of this section $10,000,000 for each
fiscal year. There are hereby authorized to be appropriated for
the purpose of subsection (b) of this section such sums as are
necessary.
Sec. 428. (a) No operator shall discharge or in any other way
discriminate against any miner employed by [him] such operator
by reason of the fact that such miner is suffering from
pneumoconiosis. No person shall cause or attempt to cause an
operator to violate this section. For the purposes of this
subsection the term ``miner'' shall not include any person who
has been found to be totally disabled.
(b) Any miner who believes that [he] the miner has been
discharged or otherwise discriminated against by any person in
violation of subsection (a) of this section, or any
representative of such miner may, within ninety days after such
violation occurs, apply to the Secretary for a review of such
alleged discharge or discrimination. A copy of the application
shall be sent to such person who shall be the respondent. Upon
receipt of such application, the Secretary shall cause such
investigation to be made as [he] the Secretary deems
appropriate. Such investigation shall provide an opportunity
for a public hearing at the request of any party to enable the
parties to present information relating to such violation. The
parties shall be given written notice of the time and place of
the hearing at least five days prior to the hearing. Any such
hearing shall be of record and shall be subject to section 554
of title 5 of the United States Code. Each administrative law
judge presiding under this section and under the provisions of
titles I, II and III of this Act shall receive compensation at
a rate determined under section 5372 of title 5, United States
Code. Upon receiving the report of such investigation, the
Secretary shall make findings of fact. If [he] the Secretary
finds that such violation did occur, [he] the Secretary shall
issue a decision, incorporating an order therein, requiring the
person committing such violation to take such affirmative
action as the Secretary deems appropriate, including, but not
limited to, the rehiring or reinstatement of the miner to [his]
the miner's former position with back pay. If [he] the
Secretary finds that there was no such violation, [he] the
Secretary shall issue an order denying the application. Such
order shall incorporate the Secretary's findings therein.
(c) Whenever an order is issued under this subsection
granting relief to a miner at the request of such miner, a sum
equal to the aggregate amount of all costs and expenses
(including the attorney's fees) as determined by the Secretary
to have been reasonably incurred by such miner for, or in
connection with, the institution and prosecution of such
proceedings, shall be assessed against the person committing
the violation.
* * * * * * *
Sec. 430. The amendments made by the Black Lung Benefits Act
of 1972, the Black Lung Benefits Reform Act of [1977 and] 1977,
the Black Lung Benefits Amendments of [1981] 1981, and the
Black Lung Benefits Improvement Act of 2022, and any amendments
made after the date of enactment of such Act, to part B of this
title shall, to the extent appropriate, also apply to part C of
this title.
[Sec. 431. Any person who willfully makes any false or
misleading statement or representation for the purpose of
obtaining any benefit or payment under this title shall be
guilty of a misdemeanor and on conviction thereof shall be
punished by a fine of not more than $1,000, or by imprisonment
for not more than one year, or both.]
SEC. 431. FALSE STATEMENTS OR MISREPRESENTATIONS, ATTORNEY
DISQUALIFICATION, AND DISCOVERY SANCTIONS.
(a) In General.--No person, including any claimant,
physician, operator, duly authorized agent of such operator, or
employee of an insurance carrier, shall--
(1) knowingly and willfully make a false statement or
misrepresentation for the purpose of obtaining,
increasing, reducing, denying, or terminating benefits
under this title; or
(2) knowingly and willfully threaten, coerce,
intimidate, deceive, or mislead a party,
representative, witness, potential witness, judge, or
anyone participating in a proceeding regarding any
matter related to a proceeding under this title.
(b) Fine; Imprisonment.--Any person who engages in the
conduct described in subsection (a) shall, upon conviction, be
subject to a fine in accordance with title 18, United States
Code, imprisoned for not more than 5 years, or both.
(c) Prompt Investigation.--The United States Attorney for the
district in which the conduct described in subsection (a) is
alleged to have occurred shall make every reasonable effort to
promptly investigate each complaint of a violation of such
subsection.
(d) Disqualification.--
(1) In general.--An attorney or expert witness who
engages in the conduct described in subsection (a)
shall, in addition to the fine or imprisonment provided
under subsection (b), be permanently disqualified from
representing any party, or appearing in any proceeding,
under this title.
(2) Attorney disqualification.--In addition to the
disqualification described in paragraph (1), the
Secretary may disqualify an attorney from representing
any party in any administrative proceeding under this
title for either a limited term or permanently, if the
attorney--
(A) engages in any action or behavior that is
prejudicial to the fair and orderly conduct of
such proceeding; or
(B) is suspended or disbarred by any court of
the United States, any State, or any territory,
commonwealth, or possession of the United
States with jurisdiction over the proceeding.
(e) Discovery Sanctions.--An administrative law judge may
sanction a party who fails to comply with an order to compel
discovery or disclosure, or to supplement earlier responses, in
a proceeding under this title. These sanctions may include, as
appropriate--
(1) drawing an adverse inference against the
noncomplying party on the facts relevant to the
discovery or disclosure order;
(2) limiting the noncomplying party's claims,
defenses, or right to introduce evidence; and
(3) rendering a default decision against the
noncomplying party.
(f) Regulations.--The Secretary shall promulgate a proposed
rule not later than 180 days after the date of enactment of
this Act and a final rule not later than 18 months after such
date of enactment that--
(1) provides procedures for the disqualifications and
sanctions under this section and is appropriate for all
parties; and
(2) distinguishes between parties that are
represented by an attorney and parties that are not
represented by an attorney.
* * * * * * *
SEC. 435. DEVELOPMENT OF MEDICAL EVIDENCE BY THE SECRETARY.
(a) Complete Pulmonary Evaluation.--Upon request by a
claimant for benefits under this title, the Secretary shall
provide the claimant an opportunity to substantiate the claim
through a complete pulmonary evaluation of the miner that shall
include--
(1) an initial report, conducted by a qualified
physician on the list provided under subsection (e),
and in accordance with subsection (d)(5) and sections
402(f)(1)(D) and 413(b); and
(2) if the conditions under subsection (b) are met,
any supplemental medical evidence described in
subsection (c).
(b) Authorizing Chest Scans.--In diagnosing whether there is
complicated pneumoconiosis as a part of a medical examination
conducted under subsection (a), the Secretary shall authorize a
high-quality, low-dose or standard computerized tomography scan
where any or a combination of the following is found:
(1) Any certified B reader of a chest radiograph
associated with an exam conducted under section 413(b)
finds pneumoconiosis (ILO category 2/1 or greater).
(2) Any certified B reader of a chest radiograph
associated with an exam conducted under section 413(b)
finds a coalescence of small opacities.
(c) Conditions for Supplemental Medical Evidence.--The
Secretary shall develop supplemental medical evidence, in
accordance with subsection (d)--
(1) for any claim in which the Secretary recommends
an award of benefits based on the results of the
initial report under subsection (a)(1) and a party
opposing such award submits evidence that could be
considered contrary to the findings of the Secretary;
and
(2) for any compensation case under this title heard
by an administrative law judge, in which--
(A) the Secretary has awarded benefits to the
claimant;
(B) the party opposing such award has
submitted evidence not previously reviewed that
could be considered contrary to the award under
subparagraph (A); and
(C) the claimant or, if the claimant is
represented by an attorney, the claimant's
attorney consents to the Secretary developing
supplemental medical evidence.
(d) Process for Supplemental Medical Evidence.--
(1) In general.--Except as provided under paragraph
(2), to develop supplemental medical evidence under
conditions described in subsection (c), the Secretary
shall request the physician who conducted the initial
report under subsection (a)(1) to--
(A) review any medical evidence submitted
after such report or the most recent
supplemental report, as appropriate; and
(B) update his or her opinion in a
supplemental report.
(2) Alternative physician.--If such physician is no
longer available or is unwilling to provide
supplemental medical evidence under paragraph (1), the
Secretary shall select another qualified physician from
the list provided pursuant to subsection (e) to provide
such evidence.
(e) Qualified Physicians for Complete Pulmonary Evaluation
and Protections for Suitability and Potential Conflicts of
Interest.--
(1) Qualified physicians list.--The Secretary shall
create and maintain a list of qualified physicians to
be selected by a claimant to perform the complete
pulmonary evaluation described in subsection (a).
(2) Public availability.--The Secretary shall make
the list under this subsection available to the public.
(3) Annual evaluation.--Each year, the Secretary
shall update such list by reviewing the suitability of
the listed qualified physicians and assessing any
potential conflicts of interest.
(4) Criteria for suitability.--The Secretary shall
include on the list only those physicians whom the
Secretary determines are qualified, capable, and
willing to provide credible opinions consistent with
the premises underlying this Act. In determining
whether a physician is suitable to be on the list under
this subsection, the Secretary shall consult the
National Practitioner Data Bank of the Department of
Health and Human Services and assess reports of adverse
licensure, certifications, hospital privilege, and
professional society actions involving the physician.
In no case shall such list include any physician--
(A) who is not licensed to practice medicine
in any State or any territory, commonwealth, or
possession of the United States;
(B) whose license is revoked by a medical
licensing board of any State, territory,
commonwealth, or possession of the United
States; or
(C) whose license is suspended by a medical
licensing board of any State, territory,
commonwealth, or possession of the United
States.
(5) Conflicts of interest.--The Secretary shall
develop and implement policies and procedures to ensure
that any actual or potential conflict of interest of
qualified physicians on the list under this subsection,
including both individual and organizational conflicts
of interest, are disclosed to the Department, and to
provide such disclosure to claimants. Such policies and
procedures shall provide that a physician with a
conflict of interest shall not be used to perform a
complete pulmonary medical evaluation under subsection
(a) that is reimbursed pursuant to subsection (g) if--
(A) such physician is employed by, under
contract to, or otherwise providing services to
a private party opposing the claim, a law firm
or lawyer representing such opposing party, or
an interested insurer or other interested third
party; or
(B) such physician has been retained by a
private party opposing the claim, a law firm or
lawyer representing such opposing party, or an
interested insurer or other interested third
party in the previous 24 months.
(f) Record.--Upon receipt of any initial report or
supplemental report under this section, the Secretary shall
enter the report in the record and provide a copy of such
report to all parties to the proceeding.
(g) Expenses.--All expenses related to obtaining the medical
evidence under this section shall be paid for by the fund. If a
claimant receives a final award of benefits, the operator
liable for payment of benefits, if any, shall reimburse the
fund for such expenses, which shall include interest.
SEC. 436. READJUDICATING CASES INVOLVING DISCREDITED EXPERT OPINIONS.
(a) Definitions.--In this section:
(1) Covered chest radiograph.--The term ``covered
chest radiograph'' means a chest radiograph that was
interpreted as negative for simple pneumoconiosis,
complicated pneumoconiosis, or progressive massive
fibrosis by a physician with respect to whom the
Secretary has directed, in writing and after an
evaluation by the Secretary, that such physician's
negative interpretations of chest radiographs not be
credited, except where subsequently determined to be
credible by the Secretary in evaluating a claim for
benefits under this Act.
(2) Covered individual.--The term ``covered
individual'' means an individual whose record for a
claim for benefits under this Act includes a covered
chest radiograph.
(3) Covered survivor.--The term ``covered survivor''
means an individual who--
(A) is a survivor of a covered individual
whose claim under this Act was still pending at
the time of the covered individual's death; and
(B) who continued to seek an award with
respect to the covered individual's claim after
the covered individual's death.
(b) Claims.--A covered individual or a covered survivor whose
claim for benefits under this Act was denied may file a new
claim for benefits under this Act.
(c) Adjudication on the Merits.--
(1) In general.--Any new claim filed under subsection
(b) shall be adjudicated on the merits and shall not
include consideration of a covered chest radiograph.
(2) Covered survivor.--Any new claim filed under
subsection (b) by a covered survivor shall be
adjudicated as either a miner's or a survivor's claim
depending upon the type of claim pending at the time of
the covered individual's death.
(d) Time of Payment.--
(1) Miner's claim.--If a claim, filed under
subsection (b) and adjudicated under subsection (c) as
a miner's claim, results in an award of benefits,
benefits shall be payable beginning with the month of
the filing of the denied claim that had included in its
record a covered chest radiograph.
(2) Survivor's claim.--If a claim, filed under
subsection (b) and adjudicated under subsection (c) as
a survivor's claim, results in an award of benefits,
benefits shall be payable beginning with the month of
the miner's death.
(e) Contributing Impact.--The Secretary shall have the
discretion to deny a new claim under subsection (b) in
circumstances where the party opposing such claim establishes
through clear and convincing evidence that a covered chest
radiograph did not contribute to the decision to deny benefits
in all prior claims filed by the covered individual or the
covered survivor.
(f) Limitation on Filing of New Claims.--A new claim for
benefits may be filed under subsection (b) only if the original
claim was finally denied by a district director, an
administrative law judge, or the Benefits Review Board
established under section 21(b) of the Longshore and Harbor
Workers' Compensation Act (33 U.S.C. 921(b)).
* * * * * * *
----------
INTERNAL REVENUE CODE OF 1986
* * * * * * *
Subtitle F--Procedure and Administration
* * * * * * *
CHAPTER 61--INFORMATION AND RETURNS
* * * * * * *
Subchapter B--MISCELLANEOUS PROVISIONS
* * * * * * *
SEC. 6103. CONFIDENTIALITY AND DISCLOSURE OF RETURNS AND RETURN
INFORMATION.
(a) General rule.--Returns and return information shall be
confidential, and except as authorized by this title--
(1) no officer or employee of the United States,
(2) no officer or employee of any State, any local
law enforcement agency receiving information under
subsection (i)(1)(C) or (7)(A), any local child support
enforcement agency, or any local agency administering a
program listed in subsection (l)(7)(D) who has or had
access to returns or return information under this
section or section 6104(c), and
(3) no other person (or officer or employee thereof)
who has or had access to returns or return information
under subsection (c), subsection (e)(1)(D)(iii),
paragraph (10), (13), (14), or (15) of subsection (k),
paragraph (6), (10), (12), (13) (other than
subparagraphs (D)(v) and (D)(vi) thereof), (16), (19),
(20), or (21) of subsection (l), paragraph (2) or
(4)(B) of subsection (m), or subsection (n),
shall disclose any return or return information obtained by him
in any manner in connection with his service as such an officer
or an employee or otherwise or under the provisions of this
section. For purposes of this subsection, the term ``officer or
employee'' includes a former officer or employee.
(b) Definitions.--For purposes of this section--
(1) Return.--The term ``return'' means any tax or
information return, declaration of estimated tax, or
claim for refund required by, or provided for or
permitted under, the provisions of this title which is
filed with the Secretary by, on behalf of, or with
respect to any person, and any amendment or supplement
thereto, including supporting schedules, attachments,
or lists which are supplemental to, or part of, the
return so filed.
(2) Return information.--The term ``return
information'' means--
(A) a taxpayer's identity, the nature,
source, or amount of his income, payments,
receipts, deductions, exemptions, credits,
assets, liabilities, net worth, tax liability,
tax withheld, deficiencies, overassessments, or
tax payments, whether the taxpayer's return
was, is being, or will be examined or subject
to other investigation or processing, or any
other data, received by, recorded by, prepared
by, furnished to, or collected by the Secretary
with respect to a return or with respect to the
determination of the existence, or possible
existence, of liability (or the amount thereof)
of any person under this title for any tax,
penalty, interest, fine, forfeiture, or other
imposition, or offense,
(B) any part of any written determination or
any background file document relating to such
written determination (as such terms are
defined in section 6110(b)) which is not open
to public inspection under section 6110,
(C) any advance pricing agreement entered
into by a taxpayer and the Secretary and any
background information related to such
agreement or any application for an advance
pricing agreement, and
(D) any agreement under section 7121, and any
similar agreement, and any background
information related to such an agreement or
request for such an agreement,
but such term does not include data in a form which
cannot be associated with, or otherwise identify,
directly or indirectly, a particular taxpayer. Nothing
in the preceding sentence, or in any other provision of
law, shall be construed to require the disclosure of
standards used or to be used for the selection of
returns for examination, or data used or to be used for
determining such standards, if the Secretary determines
that such disclosure will seriously impair assessment,
collection, or enforcement under the internal revenue
laws.
(3) Taxpayer return information.--The term ``taxpayer
return information'' means return information as
defined in paragraph (2) which is filed with, or
furnished to, the Secretary by or on behalf of the
taxpayer to whom such return information relates.
(4) Tax administration.--The term ``tax
administration''--
(A) means--
(i) the administration, management,
conduct, direction, and supervision of
the execution and application of the
internal revenue laws or related
statutes (or equivalent laws and
statutes of a State) and tax
conventions to which the United States
is a party, and
(ii) the development and formulation
of Federal tax policy relating to
existing or proposed internal revenue
laws, related statutes, and tax
conventions, and
(B) includes assessment, collection,
enforcement, litigation, publication, and
statistical gathering functions under such
laws, statutes, or conventions.
(5) State.--
(A) In general.--The term ``State'' means--
(i) any of the 50 States, the
District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands,
Guam, American Samoa, and the
Commonwealth of the Northern Mariana
Islands,
(ii) for purposes of subsections
(a)(2), (b)(4), (d)(1), (h)(4), and
(p), any municipality--
(I) with a population in
excess of 250,000 (as
determined under the most
recent decennial United States
census data available),
(II) which imposes a tax on
income or wages, and
(III) with which the
Secretary (in his sole
discretion) has entered into an
agreement regarding disclosure,
and
(iii) for purposes of subsections
(a)(2), (b)(4), (d)(1), (h)(4), and
(p), any governmental entity--
(I) which is formed and
operated by a qualified group
of municipalities, and
(II) with which the Secretary
(in his sole discretion) has
entered into an agreement
regarding disclosure.
(B) Regional income tax agencies.--For
purposes of subparagraph (A)(iii)--
(i) Qualified group of
municipalities.--The term ``qualified
group of municipalities'' means, with
respect to any governmental entity, 2
or more municipalities--
(I) each of which imposes a
tax on income or wages,
(II) each of which, under the
authority of a State statute,
administers the laws relating
to the imposition of such taxes
through such entity, and
(III) which collectively have
a population in excess of
250,000 (as determined under
the most recent decennial
United States census data
available).
(ii) References to State law, etc..--
For purposes of applying subparagraph
(A)(iii) to the subsections referred to
in such subparagraph, any reference in
such subsections to State law,
proceedings, or tax returns shall be
treated as references to the law,
proceedings, or tax returns, as the
case may be, of the municipalities
which form and operate the governmental
entity referred to in such
subparagraph.
(iii) Disclosure to contractors and
other agents.--Notwithstanding any
other provision of this section, no
return or return information shall be
disclosed to any contractor or other
agent of a governmental entity referred
to in subparagraph (A)(iii) unless such
entity, to the satisfaction of the
Secretary--
(I) has requirements in
effect which require each such
contractor or other agent which
would have access to returns or
return information to provide
safeguards (within the meaning
of subsection (p)(4)) to
protect the confidentiality of
such returns or return
information,
(II) agrees to conduct an on-
site review every 3 years (or a
mid-point review in the case of
contracts or agreements of less
than 3 years in duration) of
each contractor or other agent
to determine compliance with
such requirements,
(III) submits the findings of
the most recent review
conducted under subclause (II)
to the Secretary as part of the
report required by subsection
(p)(4)(E), and
(IV) certifies to the
Secretary for the most recent
annual period that such
contractor or other agent is in
compliance with all such
requirements.
The certification required by subclause (IV)
shall include the name and address of each
contractor and other agent, a description of
the contract or agreement with such contractor
or other agent, and the duration of such
contract or agreement. The requirements of this
clause shall not apply to disclosures pursuant
to subsection (n) for purposes of Federal tax
administration and a rule similar to the rule
of subsection (p)(8)(B) shall apply for
purposes of this clause.
(6) Taxpayer identity.--The term ``taxpayer
identity'' means the name of a person with respect to
whom a return is filed, his mailing address, his
taxpayer identifying number (as described in section
6109), or a combination thereof.
(7) Inspection.--The terms ``inspected'' and
``inspection'' mean any examination of a return or
return information.
(8) Disclosure.--The term ``disclosure'' means the
making known to any person in any manner whatever a
return or return information.
(9) Federal agency.--The term ``Federal agency''
means an agency within the meaning of section 551(1) of
title 5, United States Code.
(10) Chief executive officer.--The term ``chief
executive officer'' means, with respect to any
municipality, any elected official and the chief
official (even if not elected) of such municipality.
(11) Terrorist incident, threat, or activity.--The
term ``terrorist incident, threat, or activity'' means
an incident, threat, or activity involving an act of
domestic terrorism (as defined in section 2331(5) of
title 18, United States Code) or international
terrorism (as defined in section 2331(1) of such
title).
(c) Disclosure of returns and return information to designee
of taxpayer.--The Secretary may, subject to such requirements
and conditions as he may prescribe by regulations, disclose the
return of any taxpayer, or return information with respect to
such taxpayer, to such person or persons as the taxpayer may
designate in a request for or consent to such disclosure, or to
any other person at the taxpayer's request to the extent
necessary to comply with a request for information or
assistance made by the taxpayer to such other person. However,
return information shall not be disclosed to such person or
persons if the Secretary determines that such disclosure would
seriously impair Federal tax administration. Persons designated
by the taxpayer under this subsection to receive return
information shall not use the information for any purpose other
than the express purpose for which consent was granted and
shall not disclose return information to any other person
without the express permission of, or request by, the taxpayer.
(d) Disclosure to State tax officials and State and local law
enforcement agencies.--
(1) In general.--Returns and return information with
respect to taxes imposed by chapters 1, 2, 6, 11, 12,
21, 23, 24, 31, 32, 44, 51, and 52 and subchapter D of
chapter 36 shall be open to inspection by, or
disclosure to, any State agency, body, or commission,
or its legal representative, which is charged under the
laws of such State with responsibility for the
administration of State tax laws for the purpose of,
and only to the extent necessary in, the administration
of such laws, including any procedures with respect to
locating any person who may be entitled to a refund.
Such inspection shall be permitted, or such disclosure
made, only upon written request by the head of such
agency, body, or commission, and only to the
representatives of such agency, body, or commission
designated in such written request as the individuals
who are to inspect or to receive the returns or return
information on behalf of such agency, body, or
commission. Such representatives shall not include any
individual who is the chief executive officer of such
State or who is neither an employee or legal
representative of such agency, body, or commission nor
a person described in subsection (n). However, such
return information shall not be disclosed to the extent
that the Secretary determines that such disclosure
would identify a confidential informant or seriously
impair any civil or criminal tax investigation.
(2) Disclosure to State audit agencies.--
(A) In general.--Any returns or return
information obtained under paragraph (1) by any
State agency, body, or commission may be open
to inspection by, or disclosure to, officers
and employees of the State audit agency for the
purpose of, and only to the extent necessary
in, making an audit of the State agency, body,
or commission referred to in paragraph (1).
(B) State audit agency.--For purposes of
subparagraph (A), the term ``State audit
agency'' means any State agency, body, or
commission which is charged under the laws of
the State with the responsibility of auditing
State revenues and programs.
(3) Exception for reimbursement under section 7624.--
Nothing in this section shall be construed to prevent
the Secretary from disclosing to any State or local law
enforcement agency which may receive a payment under
section 7624 the amount of the recovered taxes with
respect to which such a payment may be made.
(4) Availability and use of death information.--
(A) In general.--No returns or return
information may be disclosed under paragraph
(1) to any agency, body, or commission of any
State (or any legal representative thereof)
during any period during which a contract
meeting the requirements of subparagraph (B) is
not in effect between such State and the
Secretary of Health and Human Services.
(B) Contractual requirements.--A contract
meets the requirements of this subparagraph
if--
(i) such contract requires the State
to furnish the Secretary of Health and
Human Services information concerning
individuals with respect to whom death
certificates (or equivalent documents
maintained by the State or any
subdivision thereof) have been
officially filed with it, and
(ii) such contract does not include
any restriction on the use of
information obtained by such Secretary
pursuant to such contract, except that
such contract may provide that such
information is only to be used by the
Secretary (or any other Federal agency)
for purposes of ensuring that Federal
benefits or other payments are not
erroneously paid to deceased
individuals.
Any information obtained by the Secretary of
Health and Human Services under such a contract
shall be exempt from disclosure under section
552 of title 5, United States Code, and from
the requirements of section 552a of such title
5.
(C) Special exception.--The provisions of
subparagraph (A) shall not apply to any State
which on July 1, 1993, was not, pursuant to a
contract, furnishing the Secretary of Health
and Human Services information concerning
individuals with respect to whom death
certificates (or equivalent documents
maintained by the State or any subdivision
thereof) have been officially filed with it.
(5) Disclosure for combined employment tax
reporting.--
(A) In general.--The Secretary may disclose
taxpayer identity information and signatures to
any agency, body, or commission of any State
for the purpose of carrying out with such
agency, body, or commission a combined Federal
and State employment tax reporting program
approved by the Secretary. Subsections (a)(2)
and (p)(4) and sections 7213 and 7213A shall
not apply with respect to disclosures or
inspections made pursuant to this paragraph.
(B) Termination.--The Secretary may not make
any disclosure under this paragraph after
December 31, 2007.
(6) Limitation on disclosure regarding regional
income tax agencies treated as States.--For purposes of
paragraph (1), inspection by or disclosure to an entity
described in subsection (b)(5)(A)(iii) shall be for the
purpose of, and only to the extent necessary in, the
administration of the laws of the member municipalities
in such entity relating to the imposition of a tax on
income or wages. Such entity may not redisclose any
return or return information received pursuant to
paragraph (1) to any such member municipality.
(e) Disclosure to persons having material interest.--
(1) In general.--The return of a person shall, upon
written request, be open to inspection by or disclosure
to--
(A) in the case of the return of an
individual--
(i) that individual,
(ii) the spouse of that individual if
the individual and such spouse have
signified their consent to consider a
gift reported on such return as made
one-half by him and one-half by the
spouse pursuant to the provisions of
section 2513; or
(iii) the child of that individual
(or such child's legal representative)
to the extent necessary to comply with
the provisions of section 1(g);
(B) in the case of an income tax return filed
jointly, either of the individuals with respect
to whom the return is filed;
(C) in the case of the return of a
partnership, any person who was a member of
such partnership during any part of the period
covered by the return;
(D) in the case of the return of a
corporation or a subsidiary thereof--
(i) any person designated by
resolution of its board of directors or
other similar governing body,
(ii) any officer or employee of such
corporation upon written request signed
by any principal officer and attested
to by the secretary or other officer,
(iii) any bona fide shareholder of
record owning 1 percent or more of the
outstanding stock of such corporation,
(iv) if the corporation was an S
corporation, any person who was a
shareholder during any part of the
period covered by such return during
which an election under section 1362(a)
was in effect, or
(v) if the corporation has been
dissolved, any person authorized by
applicable State law to act for the
corporation or any person who the
Secretary finds to have a material
interest which will be affected by
information contained therein;
(E) in the case of the return of an estate--
(i) the administrator, executor, or
trustee of such estate, and
(ii) any heir at law, next of kin, or
beneficiary under the will, of the
decedent, but only if the Secretary
finds that such heir at law, next of
kin, or beneficiary has a material
interest which will be affected by
information contained therein; and
(F) in the case of the return of a trust--
(i) the trustee or trustees, jointly
or separately, and
(ii) any beneficiary of such trust,
but only if the Secretary finds that
such beneficiary has a material
interest which will be affected by
information contained therein.
(2) Incompetency.--If an individual described in
paragraph (1) is legally incompetent, the applicable
return shall, upon written request, be open to
inspection by or disclosure to the committee, trustee,
or guardian of his estate.
(3) Deceased individuals.--The return of a decedent
shall, upon written request, be open to inspection by
or disclosure to--
(A) the administrator, executor, or trustee
of his estate, and
(B) any heir at law, next of kin, or
beneficiary under the will, of such decedent,
or a donee of property, but only if the
Secretary finds that such heir at law, next of
kin, beneficiary, or donee has a material
interest which will be affected by information
contained therein.
(4) Title 11 cases and receivership proceedings.--
If--
(A) there is a trustee in a title 11 case in
which the debtor is the person with respect to
whom the return is filed, or
(B) substantially all of the property of the
person with respect to whom the return is filed
is in the hands of a receiver,
such return or returns for prior years of such person
shall, upon written request, be open to inspection by
or disclosure to such trustee or receiver, but only if
the Secretary finds that such trustee or receiver, in
his fiduciary capacity, has a material interest which
will be affected by information contained therein.
(5) Individual's title 11 case.--
(A) In general.--In any case to which section
1398 applies (determined without regard to
section 1398(b)(1)), any return of the debtor
for the taxable year in which the case
commenced or any preceding taxable year shall,
upon written request, be open to inspection by
or disclosure to the trustee in such case.
(B) Return of estate available to debtor.--
Any return of an estate in a case to which
section 1398 applies shall, upon written
request, be open to inspection by or disclosure
to the debtor in such case.
(C) Special rule for involuntary cases.--In
an involuntary case, no disclosure shall be
made under subparagraph (A) until the order for
relief has been entered by the court having
jurisdiction of such case unless such court
finds that such disclosure is appropriate for
purposes of determining whether an order for
relief should be entered.
(6) Attorney in fact.--Any return to which this
subsection applies shall, upon written request, also be
open to inspection by or disclosure to the attorney in
fact duly authorized in writing by any of the persons
described in paragraph (1), (2), (3), (4), (5), (8), or
(9) to inspect the return or receive the information on
his behalf, subject to the conditions provided in such
paragraphs.
(7) Return information.--Return information with
respect to any taxpayer may be open to inspection by or
disclosure to any person authorized by this subsection
to inspect any return of such taxpayer if the Secretary
determines that such disclosure would not seriously
impair Federal tax administration.
(8) Disclosure of collection activities with respect
to joint return.--If any deficiency of tax with respect
to a joint return is assessed and the individuals
filing such return are no longer married or no longer
reside in the same household, upon request in writing
by either of such individuals, the Secretary shall
disclose in writing to the individual making the
request whether the Secretary has attempted to collect
such deficiency from such other individual, the general
nature of such collection activities, and the amount
collected. The preceding sentence shall not apply to
any deficiency which may not be collected by reason of
section 6502.
(9) Disclosure of certain information where more than
1 person subject to penalty under section 6672.--If the
Secretary determines that a person is liable for a
penalty under section 6672(a) with respect to any
failure, upon request in writing of such person, the
Secretary shall disclose in writing to such person--
(A) the name of any other person whom the
Secretary has determined to be liable for such
penalty with respect to such failure, and
(B) whether the Secretary has attempted to
collect such penalty from such other person,
the general nature of such collection
activities, and the amount collected.
(10) Limitation on certain disclosures under this
subsection.--In the case of an inspection or disclosure
under this subsection relating to the return of a
partnership, S corporation, trust, or an estate, the
information inspected or disclosed shall not include
any supporting schedule, attachment, or list which
includes the taxpayer identity information of a person
other than the entity making the return or the person
conducting the inspection or to whom the disclosure is
made.
(11) Disclosure of information regarding status of
investigation of violation of this section.--In the
case of a person who provides to the Secretary
information indicating a violation of section 7213,
7213A, or 7214 with respect to any return or return
information of such person, the Secretary may disclose
to such person (or such person's designee)--
(A) whether an investigation based on the
person's provision of such information has been
initiated and whether it is open or closed,
(B) whether any such investigation
substantiated such a violation by any
individual, and
(C) whether any action has been taken with
respect to such individual (including whether a
referral has been made for prosecution of such
individual).
(f) Disclosure to Committees of Congress.--
(1) Committee on Ways and Means, Committee on
Finance, and Joint Committee on Taxation.--Upon written
request from the chairman of the Committee on Ways and
Means of the House of Representatives, the chairman of
the Committee on Finance of the Senate, or the chairman
of the Joint Committee on Taxation, the Secretary shall
furnish such committee with any return or return
information specified in such request, except that any
return or return information which can be associated
with, or otherwise identify, directly or indirectly, a
particular taxpayer shall be furnished to such
committee only when sitting in closed executive session
unless such taxpayer otherwise consents in writing to
such disclosure.
(2) Chief of Staff of Joint Committee on Taxation.--
Upon written request by the Chief of Staff of the Joint
Committee on Taxation, the Secretary shall furnish him
with any return or return information specified in such
request. Such Chief of Staff may submit such return or
return information to any committee described in
paragraph (1), except that any return or return
information which can be associated with, or otherwise
identify, directly or indirectly, a particular taxpayer
shall be furnished to such committee only when sitting
in closed executive session unless such taxpayer
otherwise consents in writing to such disclosure.
(3) Other committees.--Pursuant to an action by, and
upon written request by the chairman of, a committee of
the Senate or the House of Representatives (other than
a committee specified in paragraph (1)) specially
authorized to inspect any return or return information
by a resolution of the Senate or the House of
Representatives or, in the case of a joint committee
(other than the joint committee specified in paragraph
(1)) by concurrent resolution, the Secretary shall
furnish such committee, or a duly authorized and
designated subcommittee thereof, sitting in closed
executive session, with any return or return
information which such resolution authorizes the
committee or subcommittee to inspect. Any resolution
described in this paragraph shall specify the purpose
for which the return or return information is to be
furnished and that such information cannot reasonably
be obtained from any other source.
(4) Agents of committees and submission of
information to Senate or House of Representatives.--
(A) Committees described in paragraph (1).--
Any committee described in paragraph (1) or the
Chief of Staff of the Joint Committee on
Taxation shall have the authority, acting
directly, or by or through such examiners or
agents as the chairman of such committee or
such chief of staff may designate or appoint,
to inspect returns and return information at
such time and in such manner as may be
determined by such chairman or chief of staff.
Any return or return information obtained by or
on behalf of such committee pursuant to the
provisions of this subsection may be submitted
by the committee to the Senate or the House of
Representatives, or to both. The Joint
Committee on Taxation may also submit such
return or return information to any other
committee described in paragraph (1), except
that any return or return information which can
be associated with, or otherwise identify,
directly or indirectly, a particular taxpayer
shall be furnished to such committee only when
sitting in closed executive session unless such
taxpayer otherwise consents in writing to such
disclosure.
(B) Other committees.--Any committee or
subcommittee described in paragraph (3) shall
have the right, acting directly, or by or
through no more than four examiners or agents,
designated or appointed in writing in equal
numbers by the chairman and ranking minority
member of such committee or subcommittee, to
inspect returns and return information at such
time and in such manner as may be determined by
such chairman and ranking minority member. Any
return or return information obtained by or on
behalf of such committee or subcommittee
pursuant to the provisions of this subsection
may be submitted by the committee to the Senate
or the House of Representatives, or to both,
except that any return or return information
which can be associated with, or otherwise
identify, directly or indirectly, a particular
taxpayer, shall be furnished to the Senate or
the House of Representatives only when sitting
in closed executive session unless such
taxpayer otherwise consents in writing to such
disclosure.
(5) Disclosure by whistleblower.--Any person who
otherwise has or had access to any return or return
information under this section may disclose such return
or return information to a committee referred to in
paragraph (1) or any individual authorized to receive
or inspect information under paragraph (4)(A) if such
person believes such return or return information may
relate to possible misconduct, maladministration, or
taxpayer abuse.
(g) Disclosure to President and certain other persons.--
(1) In general.--Upon written request by the
President, signed by him personally, the Secretary
shall furnish to the President, or to such employee or
employees of the White House Office as the President
may designate by name in such request, a return or
return information with respect to any taxpayer named
in such request. Any such request shall state--
(A) the name and address of the taxpayer
whose return or return information is to be
disclosed,
(B) the kind of return or return information
which is to be disclosed,
(C) the taxable period or periods covered by
such return or return information, and
(D) the specific reason why the inspection or
disclosure is requested.
(2) Disclosure of return information as to
Presidential appointees and certain other Federal
Government appointees.--The Secretary may disclose to a
duly authorized representative of the Executive Office
of the President or to the head of any Federal agency,
upon written request by the President or head of such
agency, or to the Federal Bureau of Investigation on
behalf of and upon written request by the President or
such head, return information with respect to an
individual who is designated as being under
consideration for appointment to a position in the
executive or judicial branch of the Federal Government.
Such return information shall be limited to whether
such individual--
(A) has filed returns with respect to the
taxes imposed under chapter 1 for not more than
the immediately preceding 3 years;
(B) has failed to pay any tax within 10 days
after notice and demand, or has been assessed
any penalty under this title for negligence, in
the current year or immediately preceding 3
years;
(C) has been or is under investigation for
possible criminal offenses under the internal
revenue laws and the results of any such
investigation; or
(D) has been assessed any civil penalty under
this title for fraud.
Within 3 days of the receipt of any request for any
return information with respect to any individual under
this paragraph, the Secretary shall notify such
individual in writing that such information has been
requested under the provisions of this paragraph.
(3) Restriction on disclosure.--The employees to whom
returns and return information are disclosed under this
subsection shall not disclose such returns and return
information to any other person except the President or
the head of such agency without the personal written
direction of the President or the head of such agency.
(4) Restriction on disclosure to certain employees.--
Disclosure of returns and return information under this
subsection shall not be made to any employee whose
annual rate of basic pay is less than the annual rate
of basic pay specified for positions subject to section
5316 of title 5, United States Code.
(5) Reporting requirements.--Within 30 days after the
close of each calendar quarter, the President and the
head of any agency requesting returns and return
information under this subsection shall each file a
report with the Joint Committee on Taxation setting
forth the taxpayers with respect to whom such requests
were made during such quarter under this subsection,
the returns or return information involved, and the
reasons for such requests. The President shall not be
required to report on any request for returns and
return information pertaining to an individual who was
an officer or employee of the executive branch of the
Federal Government at the time such request was made.
Reports filed pursuant to this paragraph shall not be
disclosed unless the Joint Committee on Taxation
determines that disclosure thereof (including
identifying details) would be in the national interest.
Such reports shall be maintained by the Joint Committee
on Taxation for a period not exceeding 2 years unless,
within such period, the Joint Committee on Taxation
determines that a disclosure to the Congress is
necessary.
(h) Disclosure to certain Federal officers and employees for
purposes of tax administration, etc..--
(1) Department of the Treasury.--Returns and return
information shall, without written request, be open to
inspection by or disclosure to officers and employees
of the Department of the Treasury whose official duties
require such inspection or disclosure for tax
administration purposes.
(2) Department of Justice.--In a matter involving tax
administration, a return or return information shall be
open to inspection by or disclosure to officers and
employees of the Department of Justice (including
United States attorneys) personally and directly
engaged in, and solely for their use in, any proceeding
before a Federal grand jury or preparation for any
proceeding (or investigation which may result in such a
proceeding) before a Federal grand jury or any Federal
or State court, but only if--
(A) the taxpayer is or may be a party to the
proceeding, or the proceeding arose out of, or
in connection with, determining the taxpayer's
civil or criminal liability, or the collection
of such civil liability in respect of any tax
imposed under this title;
(B) the treatment of an item reflected on
such return is or may be related to the
resolution of an issue in the proceeding or
investigation; or
(C) such return or return information relates
or may relate to a transactional relationship
between a person who is or may be a party to
the proceeding and the taxpayer which affects,
or may affect, the resolution of an issue in
such proceeding or investigation.
(3) Form of request.--In any case in which the
Secretary is authorized to disclose a return or return
information to the Department of Justice pursuant to
the provisions of this subsection--
(A) if the Secretary has referred the case to
the Department of Justice, or if the proceeding
is authorized by subchapter B of chapter 76,
the Secretary may make such disclosure on his
own motion, or
(B) if the Secretary receives a written
request from the Attorney General, the Deputy
Attorney General, or an Assistant Attorney
General for a return of, or return information
relating to, a person named in such request and
setting forth the need for the disclosure, the
Secretary shall disclose return or return the
information so requested.
(4) Disclosure in judicial and administrative tax
proceedings.--A return or return information may be
disclosed in a Federal or State judicial or
administrative proceeding pertaining to tax
administration, but only--
(A) if the taxpayer is a party to the
proceeding, or the proceeding arose out of, or
in connection with, determining the taxpayer's
civil or criminal liability, or the collection
of such civil liability, in respect of any tax
imposed under this title;
(B) if the treatment of an item reflected on
such return is directly related to the
resolution of an issue in the proceeding;
(C) if such return or return information
directly relates to a transactional
relationship between a person who is a party to
the proceeding and the taxpayer which directly
affects the resolution of an issue in the
proceeding; or
(D) to the extent required by order of a
court pursuant to section 3500 of title 18,
United States Code, or rule 16 of the Federal
Rules of Criminal Procedure, such court being
authorized in the issuance of such order to
give due consideration to congressional policy
favoring the confidentiality of returns and
return information as set forth in this title.
However, such return or return information shall not be
disclosed as provided in subparagraph (A), (B), or (C)
if the Secretary determines that such disclosure would
identify a confidential informant or seriously impair a
civil or criminal tax investigation.
(5) Withholding of tax from social security
benefits.--Upon written request of the payor agency,
the Secretary may disclose available return information
from the master files of the Internal Revenue Service
with respect to the address and status of an individual
as a nonresident alien or as a citizen or resident of
the United States to the Social Security Administration
or the Railroad Retirement Board (whichever is
appropriate) for purposes of carrying out its
responsibilities for withholding tax under section 1441
from social security benefits (as defined in section
86(d)).
(6) Internal Revenue Service Oversight Board.--
(A) In general.--Notwithstanding paragraph
(1), and except as provided in subparagraph
(B), no return or return information may be
disclosed to any member of the Oversight Board
described in subparagraph (A) or (D) of section
7802(b)(1) or to any employee or detailee of
such Board by reason of their service with the
Board. Any request for information not
permitted to be disclosed under the preceding
sentence, and any contact relating to a
specific taxpayer, made by any such individual
to an officer or employee of the Internal
Revenue Service shall be reported by such
officer or employee to the Secretary, the
Treasury Inspector General for Tax
Administration, and the Joint Committee on
Taxation.
(B) Exception for reports to the Board.--If--
(i) the Commissioner or the Treasury
Inspector General for Tax
Administration prepares any report or
other matter for the Oversight Board in
order to assist the Board in carrying
out its duties; and
(ii) the Commissioner or such
Inspector General determines it is
necessary to include any return or
return information in such report or
other matter to enable the Board to
carry out such duties,
such return or return information (other than
information regarding taxpayer identity) may be
disclosed to members, employees, or detailees
of the Board solely for the purpose of carrying
out such duties.
(i) Disclosure to Federal officers or employees for
administration of Federal laws not relating to tax
administration.--
(1) Disclosure of returns and return information for
use in criminal investigations.--
(A) In general.--Except as provided in
paragraph (6), any return or return information
with respect to any specified taxable period or
periods shall, pursuant to and upon the grant
of an ex parte order by a Federal district
court judge or magistrate judge under
subparagraph (B), be open (but only to the
extent necessary as provided in such order) to
inspection by, or disclosure to, officers and
employees of any Federal agency who are
personally and directly engaged in--
(i) preparation for any judicial or
administrative proceeding pertaining to
the enforcement of a specifically
designated Federal criminal statute
(not involving tax administration) to
which the United States or such agency
is or may be a party, or pertaining to
the case of a missing or exploited
child,
(ii) any investigation which may
result in such a proceeding, or
(iii) any Federal grand jury
proceeding pertaining to enforcement of
such a criminal statute to which the
United States or such agency is or may
be a party, or to such a case of a
missing or exploited child,
solely for the use of such officers and
employees in such preparation, investigation,
or grand jury proceeding.
(B) Application for order.--The Attorney
General, the Deputy Attorney General, the
Associate Attorney General, any Assistant
Attorney General, any United States attorney,
any special prosecutor appointed under section
593 of title 28, United States Code, or any
attorney in charge of a criminal division
organized crime strike force established
pursuant to section 510 of title 28, United
States Code, may authorize an application to a
Federal district court judge or magistrate
judge for the order referred to in subparagraph
(A). Upon such application, such judge or
magistrate judge may grant such order if he
determines on the basis of the facts submitted
by the applicant that--
(i) there is reasonable cause to
believe, based upon information
believed to be reliable, that a
specific criminal act has been
committed,
(ii) there is reasonable cause to
believe that the return or return
information is or may be relevant to a
matter relating to the commission of
such act, and
(iii) the return or return
information is sought exclusively for
use in a Federal criminal investigation
or proceeding concerning such act (or
any criminal investigation or
proceeding, in the case of a matter
relating to a missing or exploited
child), and the information sought to
be disclosed cannot reasonably be
obtained, under the circumstances, from
another source.
(C) Disclosure to state and local law
enforcement agencies in the case of matters
pertaining to a missing or exploited child.--
(i) In general.--In the case of an
investigation pertaining to a missing
or exploited child, the head of any
Federal agency, or his designee, may
disclose any return or return
information obtained under subparagraph
(A) to officers and employees of any
State or local law enforcement agency,
but only if--
(I) such State or local law
enforcement agency is part of a
team with the Federal agency in
such investigation, and
(II) such information is
disclosed only to such officers
and employees who are
personally and directly engaged
in such investigation.
(ii) Limitation on use of
information.--Information disclosed
under this subparagraph shall be solely
for the use of such officers and
employees in locating the missing
child, in a grand jury proceeding, or
in any preparation for, or
investigation which may result in, a
judicial or administrative proceeding.
(iii) Missing child.--For purposes of
this subparagraph, the term ``missing
child'' shall have the meaning given
such term by section 403 of the Missing
Children's Assistance Act (42 U.S.C.
5772).
(iv) Exploited child.--For purposes
of this subparagraph, the term
``exploited child'' means a minor with
respect to whom there is reason to
believe that a specified offense
against a minor (as defined by section
111(7) of the Sex Offender Registration
and Notification Act (42 U.S.C.
16911(7))) 1 has or is
occurring.
(2) Disclosure of return information other than
taxpayer return information for use in criminal
investigations.--
(A) In general.--Except as provided in
paragraph (6), upon receipt by the Secretary of
a request which meets the requirements of
subparagraph (B) from the head of any Federal
agency or the Inspector General thereof, or, in
the case of the Department of Justice, the
Attorney General, the Deputy Attorney General,
the Associate Attorney General, any Assistant
Attorney General, the Director of the Federal
Bureau of Investigation, the Administrator of
the Drug Enforcement Administration, any United
States attorney, any special prosecutor
appointed under section 593 of title 28, United
States Code, or any attorney in charge of a
criminal division organized crime strike force
established pursuant to section 510 of title
28, United States Code, the Secretary shall
disclose return information (other than
taxpayer return information) to officers and
employees of such agency who are personally and
directly engaged in--
(i) preparation for any judicial or
administrative proceeding described in
paragraph (1)(A)(i),
(ii) any investigation which may
result in such a proceeding, or
(iii) any grand jury proceeding
described in paragraph (1)(A)(iii),
solely for the use of such officers and
employees in such preparation, investigation,
or grand jury proceeding.
(B) Requirements.--A request meets the
requirements of this subparagraph if the
request is in writing and sets forth--
(i) the name and address of the
taxpayer with respect to whom the
requested return information relates;
(ii) the taxable period or periods to
which such return information relates;
(iii) the statutory authority under
which the proceeding or investigation
described in subparagraph (A) is being
conducted; and
(iv) the specific reason or reasons
why such disclosure is, or may be,
relevant to such proceeding or
investigation.
(C) Taxpayer identity.--For purposes of this
paragraph, a taxpayer's identity shall not be
treated as taxpayer return information.
(3) Disclosure of return information to apprise
appropriate officials of criminal or terrorist
activities or emergency circumstances.--
(A) Possible violations of Federal criminal
law.--
(i) In general.--Except as provided
in paragraph (6), the Secretary may
disclose in writing return information
(other than taxpayer return
information) which may constitute
evidence of a violation of any Federal
criminal law (not involving tax
administration) to the extent necessary
to apprise the head of the appropriate
Federal agency charged with the
responsibility of enforcing such law.
The head of such agency may disclose
such return information to officers and
employees of such agency to the extent
necessary to enforce such law.
(ii) Taxpayer identity.--If there is
return information (other than taxpayer
return information) which may
constitute evidence of a violation by
any taxpayer of any Federal criminal
law (not involving tax administration),
such taxpayer's identity may also be
disclosed under clause (i).
(B) Emergency circumstances.--
(i) Danger of death or physical
injury.--Under circumstances involving
an imminent danger of death or physical
injury to any individual, the Secretary
may disclose return information to the
extent necessary to apprise appropriate
officers or employees of any Federal or
State law enforcement agency of such
circumstances.
(ii) Flight from Federal
prosecution.--Under circumstances
involving the imminent flight of any
individual from Federal prosecution,
the Secretary may disclose return
information to the extent necessary to
apprise appropriate officers or
employees of any Federal law
enforcement agency of such
circumstances.
(C) Terrorist activities, etc..--
(i) In general.--Except as provided
in paragraph (6), the Secretary may
disclose in writing return information
(other than taxpayer return
information) that may be related to a
terrorist incident, threat, or activity
to the extent necessary to apprise the
head of the appropriate Federal law
enforcement agency responsible for
investigating or responding to such
terrorist incident, threat, or
activity. The head of the agency may
disclose such return information to
officers and employees of such agency
to the extent necessary to investigate
or respond to such terrorist incident,
threat, or activity.
(ii) Disclosure to the Department of
Justice.--Returns and taxpayer return
information may also be disclosed to
the Attorney General under clause (i)
to the extent necessary for, and solely
for use in preparing, an application
under paragraph (7)(D).
(iii) Taxpayer identity.--For
purposes of this subparagraph, a
taxpayer's identity shall not be
treated as taxpayer return information.
(4) Use of certain disclosed returns and return
information in judicial or administrative
proceedings.--
(A) Returns and taxpayer return
information.--Except as provided in
subparagraph (C), any return or taxpayer return
information obtained under paragraph (1) or
(7)(C) may be disclosed in any judicial or
administrative proceeding pertaining to
enforcement of a specifically designated
Federal criminal statute or related civil
forfeiture (not involving tax administration)
to which the United States or a Federal agency
is a party--
(i) if the court finds that such
return or taxpayer return information
is probative of a matter in issue
relevant in establishing the commission
of a crime or the guilt or liability of
a party, or
(ii) to the extent required by order
of the court pursuant to section 3500
of title 18, United States Code, or
rule 16 of the Federal Rules of
Criminal Procedure.
(B) Return information (other than taxpayer
return information).--Except as provided in
subparagraph (C), any return information (other
than taxpayer return information) obtained
under paragraph (1), (2), (3)(A) or (C), or (7)
may be disclosed in any judicial or
administrative proceeding pertaining to
enforcement of a specifically designated
Federal criminal statute or related civil
forfeiture (not involving tax administration)
to which the United States or a Federal agency
is a party.
(C) Confidential informant; impairment of
investigations.--No return or return
information shall be admitted into evidence
under subparagraph (A)(i) or (B) if the
Secretary determines and notifies the Attorney
General or his delegate or the head of the
Federal agency that such admission would
identify a confidential informant or seriously
impair a civil or criminal tax investigation.
(D) Consideration of confidentiality
policy.--In ruling upon the admissibility of
returns or return information, and in the
issuance of an order under subparagraph
(A)(ii), the court shall give due consideration
to congressional policy favoring the
confidentiality of returns and return
information as set forth in this title.
(E) Reversible error.--The admission into
evidence of any return or return information
contrary to the provisions of this paragraph
shall not, as such, constitute reversible error
upon appeal of a judgment in the proceeding.
(5) Disclosure to locate fugitives from justice.--
(A) In general.--Except as provided in
paragraph (6), the return of an individual or
return information with respect to such
individual shall, pursuant to and upon the
grant of an ex parte order by a Federal
district court judge or magistrate judge under
subparagraph (B), be open (but only to the
extent necessary as provided in such order) to
inspection by, or disclosure to, officers and
employees of any Federal agency exclusively for
use in locating such individual.
(B) Application for order.--Any person
described in paragraph (1)(B) may authorize an
application to a Federal district court judge
or magistrate judge for an order referred to in
subparagraph (A). Upon such application, such
judge or magistrate judge may grant such order
if he determines on the basis of the facts
submitted by the applicant that--
(i) a Federal arrest warrant relating
to the commission of a Federal felony
offense has been issued for an
individual who is a fugitive from
justice,
(ii) the return of such individual or
return information with respect to such
individual is sought exclusively for
use in locating such individual, and
(iii) there is reasonable cause to
believe that such return or return
information may be relevant in
determining the location of such
individual.
(6) Confidential informants; impairment of
investigations.--The Secretary shall not disclose any
return or return information under paragraph (1), (2),
(3)(A) or (C), (5), (7), or (8) if the Secretary
determines (and, in the case of a request for
disclosure pursuant to a court order described in
paragraph (1)(B) or (5)(B), certifies to the court)
that such disclosure would identify a confidential
informant or seriously impair a civil or criminal tax
investigation.
(7) Disclosure upon request of information relating
to terrorist activities, etc..--
(A) Disclosure to law enforcement agencies.--
(i) In general.--Except as provided
in paragraph (6), upon receipt by the
Secretary of a written request which
meets the requirements of clause (iii),
the Secretary may disclose return
information (other than taxpayer return
information) to officers and employees
of any Federal law enforcement agency
who are personally and directly engaged
in the response to or investigation of
any terrorist incident, threat, or
activity.
(ii) Disclosure to State and local
law enforcement agencies.--The head of
any Federal law enforcement agency may
disclose return information obtained
under clause (i) to officers and
employees of any State or local law
enforcement agency but only if such
agency is part of a team with the
Federal law enforcement agency in such
response or investigation and such
information is disclosed only to
officers and employees who are
personally and directly engaged in such
response or investigation.
(iii) Requirements.--A request meets
the requirements of this clause if--
(I) the request is made by
the head of any Federal law
enforcement agency (or his
delegate) involved in the
response to or investigation of
any terrorist incident, threat,
or activity, and
(II) the request sets forth
the specific reason or reasons
why such disclosure may be
relevant to a terrorist
incident, threat, or activity.
(iv) Limitation on use of
information.--Information disclosed
under this subparagraph shall be solely
for the use of the officers and
employees to whom such information is
disclosed in such response or
investigation.
(v) Taxpayer identity.--For purposes
of this subparagraph, a taxpayer's
identity shall not be treated as
taxpayer return information.
(B) Disclosure to intelligence agencies.--
(i) In general.--Except as provided
in paragraph (6), upon receipt by the
Secretary of a written request which
meets the requirements of clause (ii),
the Secretary may disclose return
information (other than taxpayer return
information) to those officers and
employees of the Department of Justice,
the Department of the Treasury, and
other Federal intelligence agencies who
are personally and directly engaged in
the collection or analysis of
intelligence and counterintelligence
information or investigation concerning
any terrorist incident, threat, or
activity. For purposes of the preceding
sentence, the information disclosed
under the preceding sentence shall be
solely for the use of such officers and
employees in such investigation,
collection, or analysis.
(ii) Requirements.--A request meets
the requirements of this subparagraph
if the request--
(I) is made by an individual
described in clause (iii), and
(II) sets forth the specific
reason or reasons why such
disclosure may be relevant to a
terrorist incident, threat, or
activity.
(iii) Requesting individuals.--An
individual described in this
subparagraph is an individual--
(I) who is an officer or
employee of the Department of
Justice or the Department of
the Treasury who is appointed
by the President with the
advice and consent of the
Senate or who is the Director
of the United States Secret
Service, and
(II) who is responsible for
the collection and analysis of
intelligence and
counterintelligence information
concerning any terrorist
incident, threat, or activity.
(iv) Taxpayer identity.--For purposes
of this subparagraph, a taxpayer's
identity shall not be treated as
taxpayer return information.
(C) Disclosure under ex parte orders.--
(i) In general.--Except as provided
in paragraph (6), any return or return
information with respect to any
specified taxable period or periods
shall, pursuant to and upon the grant
of an ex parte order by a Federal
district court judge or magistrate
under clause (ii), be open (but only to
the extent necessary as provided in
such order) to inspection by, or
disclosure to, officers and employees
of any Federal law enforcement agency
or Federal intelligence agency who are
personally and directly engaged in any
investigation, response to, or analysis
of intelligence and counterintelligence
information concerning any terrorist
incident, threat, or activity. Return
or return information opened to
inspection or disclosure pursuant to
the preceding sentence shall be solely
for the use of such officers and
employees in the investigation,
response, or analysis, and in any
judicial, administrative, or grand jury
proceedings, pertaining to such
terrorist incident, threat, or
activity.
(ii) Application for order.--The
Attorney General, the Deputy Attorney
General, the Associate Attorney
General, any Assistant Attorney
General, or any United States attorney
may authorize an application to a
Federal district court judge or
magistrate for the order referred to in
clause (i). Upon such application, such
judge or magistrate may grant such
order if he determines on the basis of
the facts submitted by the applicant
that--
(I) there is reasonable cause
to believe, based upon
information believed to be
reliable, that the return or
return information may be
relevant to a matter relating
to such terrorist incident,
threat, or activity, and
(II) the return or return
information is sought
exclusively for use in a
Federal investigation,
analysis, or proceeding
concerning any terrorist
incident, threat, or activity.
(D) Special rule for ex parte disclosure by
the IRS.--
(i) In general.--Except as provided
in paragraph (6), the Secretary may
authorize an application to a Federal
district court judge or magistrate for
the order referred to in subparagraph
(C)(i). Upon such application, such
judge or magistrate may grant such
order if he determines on the basis of
the facts submitted by the applicant
that the requirements of subparagraph
(C)(ii)(I) are met.
(ii) Limitation on use of
information.--Information disclosed
under clause (i)--
(I) may be disclosed only to
the extent necessary to apprise
the head of the appropriate
Federal law enforcement agency
responsible for investigating
or responding to a terrorist
incident, threat, or activity,
and
(II) shall be solely for use
in a Federal investigation,
analysis, or proceeding
concerning any terrorist
incident, threat, or activity.
The head of such Federal agency may disclose
such information to officers and employees of
such agency to the extent necessary to
investigate or respond to such terrorist
incident, threat, or activity.
(8) Comptroller General.--
(A) Returns available for inspection.--Except
as provided in subparagraph (C), upon written
request by the Comptroller General of the
United States, returns and return information
shall be open to inspection by, or disclosure
to, officers and employees of the Government
Accountability Office for the purpose of, and
to the extent necessary in, making--
(i) an audit of the Internal Revenue
Service, the Bureau of Alcohol,
Tobacco, Firearms, and Explosives,
Department of Justice, or the Tax and
Trade Bureau, Department of the
Treasury, which may be required by
section 713 of title 31, United States
Code, or
(ii) any audit authorized by
subsection (p)(6),
except that no such officer or employee shall,
except to the extent authorized by subsection
(f) or (p)(6), disclose to any person, other
than another officer or employee of such office
whose official duties require such disclosure,
any return or return information described in
section 4424(a) in a form which can be
associated with, or otherwise identify,
directly or indirectly, a particular taxpayer,
nor shall such officer or employee disclose any
other return or return information, except as
otherwise expressly provided by law, to any
person other than such other officer or
employee of such office in a form which can be
associated with, or otherwise identify,
directly or indirectly, a particular taxpayer.
(B) Audits of other agencies.--
(i) In general.--Nothing in this
section shall prohibit any return or
return information obtained under this
title by any Federal agency (other than
an agency referred to in subparagraph
(A)) or by a Trustee as defined in the
District of Columbia Retirement
Protection Act of 1997, for use in any
program or activity from being open to
inspection by, or disclosure to,
officers and employees of the
Government Accountability Office if
such inspection or disclosure is--
(I) for purposes of, and to
the extent necessary in, making
an audit authorized by law of
such program or activity, and
(II) pursuant to a written
request by the Comptroller
General of the United States to
the head of such Federal
agency.
(ii) Information from Secretary.--If
the Comptroller General of the United
States determines that the returns or
return information available under
clause (i) are not sufficient for
purposes of making an audit of any
program or activity of a Federal agency
(other than an agency referred to in
subparagraph (A)), upon written request
by the Comptroller General to the
Secretary, returns and return
information (of the type authorized by
subsection (l) or (m) to be made
available to the Federal agency for use
in such program or activity) shall be
open to inspection by, or disclosure
to, officers and employees of the
Government Accountability Office for
the purpose of, and to the extent
necessary in, making such audit.
(iii) Requirement of notification
upon completion of audit.--Within 90
days after the completion of an audit
with respect to which returns or return
information were opened to inspection
or disclosed under clause (i) or (ii),
the Comptroller General of the United
States shall notify in writing the
Joint Committee on Taxation of such
completion. Such notice shall include--
(I) a description of the use
of the returns and return
information by the Federal
agency involved,
(II) such recommendations
with respect to the use of
returns and return information
by such Federal agency as the
Comptroller General deems
appropriate, and
(III) a statement on the
impact of any such
recommendations on
confidentiality of returns and
return information and the
administration of this title.
(iv) Certain restrictions made
applicable.--The restrictions contained
in subparagraph (A) on the disclosure
of any returns or return information
open to inspection or disclosed under
such subparagraph shall also apply to
returns and return information open to
inspection or disclosed under this
subparagraph.
(C) Disapproval by Joint Committee on
Taxation.--Returns and return information shall
not be open to inspection or disclosed under
subparagraph (A) or (B) with respect to an
audit--
(i) unless the Comptroller General of
the United States notifies in writing
the Joint Committee on Taxation of such
audit, and
(ii) if the Joint Committee on
Taxation disapproves such audit by a
vote of at least two-thirds of its
members within the 30-day period
beginning on the day the Joint
Committee on Taxation receives such
notice.
(j) Statistical use.--
(1) Department of Commerce.--Upon request in writing
by the Secretary of Commerce, the Secretary shall
furnish--
(A) such returns, or return information
reflected thereon, to officers and employees of
the Bureau of the Census, and
(B) such return information reflected on
returns of corporations to officers and
employees of the Bureau of Economic Analysis,
as the Secretary may prescribe by regulation for the
purpose of, but only to the extent necessary in, the
structuring of censuses and national economic accounts
and conducting related statistical activities
authorized by law.
(2) Federal Trade Commission.--Upon request in
writing by the Chairman of the Federal Trade
Commission, the Secretary shall furnish such return
information reflected on any return of a corporation
with respect to the tax imposed by chapter 1 to
officers and employees of the Division of Financial
Statistics of the Bureau of Economics of such
commission as the Secretary may prescribe by regulation
for the purpose of, but only to the extent necessary
in, administration by such division of legally
authorized economic surveys of corporations.
(3) Department of Treasury.--Returns and return
information shall be open to inspection by or
disclosure to officers and employees of the Department
of the Treasury whose official duties require such
inspection or disclosure for the purpose of, but only
to the extent necessary in, preparing economic or
financial forecasts, projections, analyses, and
statistical studies and conducting related activities.
Such inspection or disclosure shall be permitted only
upon written request which sets forth the specific
reason or reasons why such inspection or disclosure is
necessary and which is signed by the head of the bureau
or office of the Department of the Treasury requesting
the inspection or disclosure.
(4) Anonymous form.--No person who receives a return
or return information under this subsection shall
disclose such return or return information to any
person other than the taxpayer to whom it relates
except in a form which cannot be associated with, or
otherwise identify, directly or indirectly, a
particular taxpayer.
(5) Department of Agriculture.--Upon request in
writing by the Secretary of Agriculture, the Secretary
shall furnish such returns, or return information
reflected thereon, as the Secretary may prescribe by
regulation to officers and employees of the Department
of Agriculture whose official duties require access to
such returns or information for the purpose of, but
only to the extent necessary in, structuring,
preparing, and conducting the census of agriculture
pursuant to the Census of Agriculture Act of 1997
(Public Law 105-113).
(6) Congressional Budget Office.--Upon written
request by the Director of the Congressional Budget
Office, the Secretary shall furnish to officers and
employees of the Congressional Budget Office return
information for the purpose of, but only to the extent
necessary for, long-term models of the social security
and medicare programs.
(k) Disclosure of certain returns and return information for
tax administration purposes.--
(1) Disclosure of accepted offers-in-compromise.--
Return information shall be disclosed to members of the
general public to the extent necessary to permit
inspection of any accepted offer-in-compromise under
section 7122 relating to the liability for a tax
imposed by this title.
(2) Disclosure of amount of outstanding lien.--If a
notice of lien has been filed pursuant to section
6323(f), the amount of the outstanding obligation
secured by such lien may be disclosed to any person who
furnishes satisfactory written evidence that he has a
right in the property subject to such lien or intends
to obtain a right in such property.
(3) Disclosure of return information to correct
misstatements of fact.--The Secretary may, but only
following approval by the Joint Committee on Taxation,
disclose such return information or any other
information with respect to any specific taxpayer to
the extent necessary for tax administration purposes to
correct a misstatement of fact published or disclosed
with respect to such taxpayer's return or any
transaction of the taxpayer with the Internal Revenue
Service.
(4) Disclosure to competent authority under tax
convention.--A return or return information may be
disclosed to a competent authority of a foreign
government which has an income tax or gift and estate
tax convention, or other convention or bilateral
agreement relating to the exchange of tax information,
with the United States but only to the extent provided
in, and subject to the terms and conditions of, such
convention or bilateral agreement.
(5) State agencies regulating tax return preparers.--
Taxpayer identity information with respect to any tax
return preparer, and information as to whether or not
any penalty has been assessed against such tax return
preparer under section 6694, 6695, or 7216, may be
furnished to any agency, body, or commission lawfully
charged under any State or local law with the
licensing, registration, or regulation of tax return
preparers. Such information may be furnished only upon
written request by the head of such agency, body, or
commission designating the officers or employees to
whom such information is to be furnished. Information
may be furnished and used under this paragraph only for
purposes of the licensing, registration, or regulation
of tax return preparers.
(6) Disclosure by certain officers and employees for
investigative purposes.--An internal revenue officer or
employee and an officer or employee of the Office of
Treasury Inspector General for Tax Administration may,
in connection with his official duties relating to any
audit, collection activity, or civil or criminal tax
investigation or any other offense under the internal
revenue laws, disclose return information to the extent
that such disclosure is necessary in obtaining
information, which is not otherwise reasonably
available, with respect to the correct determination of
tax, liability for tax, or the amount to be collected
or with respect to the enforcement of any other
provision of this title. Such disclosures shall be made
only in such situations and under such conditions as
the Secretary may prescribe by regulation. This
paragraph shall not apply to any disclosure to an
individual providing information relating to any
purpose described in paragraph (1) or (2) of section
7623(a) which is made under paragraph (13)(A).
(7) Disclosure of excise tax registration
information.--To the extent the Secretary determines
that disclosure is necessary to permit the effective
administration of subtitle D, the Secretary may
disclose--
(A) the name, address, and registration
number of each person who is registered under
any provision of subtitle D (and, in the case
of a registered terminal operator, the address
of each terminal operated by such operator),
and
(B) the registration status of any person.
(8) Levies on certain government payments.--
(A) Disclosure of return information in
levies on Financial Management Service.--In
serving a notice of levy, or release of such
levy, with respect to any applicable government
payment, the Secretary may disclose to officers
and employees of the Financial Management
Service--
(i) return information, including
taxpayer identity information,
(ii) the amount of any unpaid
liability under this title (including
penalties and interest), and
(iii) the type of tax and tax period
to which such unpaid liability relates.
(B) Restriction on use of disclosed
information.--Return information disclosed
under subparagraph (A) may be used by officers
and employees of the Financial Management
Service only for the purpose of, and to the
extent necessary in, transferring levied funds
in satisfaction of the levy, maintaining
appropriate agency records in regard to such
levy or the release thereof, notifying the
taxpayer and the agency certifying such payment
that the levy has been honored, or in the
defense of any litigation ensuing from the
honor of such levy.
(C) Applicable government payment.--For
purposes of this paragraph, the term
``applicable government payment'' means--
(i) any Federal payment (other than a
payment for which eligibility is based
on the income or assets (or both) of a
payee) certified to the Financial
Management Service for disbursement,
and
(ii) any other payment which is
certified to the Financial Management
Service for disbursement and which the
Secretary designates by published
notice.
(9) Disclosure of information to administer section
6311.--The Secretary may disclose returns or return
information to financial institutions and others to the
extent the Secretary deems necessary for the
administration of section 6311. Disclosures of
information for purposes other than to accept payments
by checks or money orders shall be made only to the
extent authorized by written procedures promulgated by
the Secretary.
(10) Disclosure of certain returns and return
information to certain prison officials.--
(A) In general.--Under such procedures as the
Secretary may prescribe, the Secretary may
disclose to officers and employees of the
Federal Bureau of Prisons and of any State
agency charged with the responsibility for
administration of prisons any returns or return
information with respect to individuals
incarcerated in Federal or State prison systems
whom the Secretary has determined may have
filed or facilitated the filing of a false or
fraudulent return to the extent that the
Secretary determines that such disclosure is
necessary to permit effective Federal tax
administration.
(B) Disclosure to contractor-run prisons.--
Under such procedures as the Secretary may
prescribe, the disclosures authorized by
subparagraph (A) may be made to contractors
responsible for the operation of a Federal or
State prison on behalf of such Bureau or
agency.
(C) Restrictions on use of disclosed
information.--Any return or return information
received under this paragraph shall be used
only for the purposes of and to the extent
necessary in taking administrative action to
prevent the filing of false and fraudulent
returns, including administrative actions to
address possible violations of administrative
rules and regulations of the prison facility
and in administrative and judicial proceedings
arising from such administrative actions.
(D) Restrictions on redisclosure and
disclosure to legal representatives.--
Notwithstanding subsection (h)--
(i) Restrictions on redisclosure.--
Except as provided in clause (ii), any
officer, employee, or contractor of the
Federal Bureau of Prisons or of any
State agency charged with the
responsibility for administration of
prisons shall not disclose any
information obtained under this
paragraph to any person other than an
officer or employee or contractor of
such Bureau or agency personally and
directly engaged in the administration
of prison facilities on behalf of such
Bureau or agency.
(ii) Disclosure to legal
representatives.--The returns and
return information disclosed under this
paragraph may be disclosed to the duly
authorized legal representative of the
Federal Bureau of Prisons, State
agency, or contractor charged with the
responsibility for administration of
prisons, or of the incarcerated
individual accused of filing the false
or fraudulent return who is a party to
an action or proceeding described in
subparagraph (C), solely in preparation
for, or for use in, such action or
proceeding.
(11) Disclosure of return information to Department
of State for purposes of passport revocation under
section 7345.--
(A) In general.--The Secretary shall, upon
receiving a certification described in section
7345, disclose to the Secretary of State return
information with respect to a taxpayer who has
a seriously delinquent tax debt described in
such section. Such return information shall be
limited to--
(i) the taxpayer identity information
with respect to such taxpayer, and
(ii) the amount of such seriously
delinquent tax debt.
(B) Restriction on disclosure.--Return
information disclosed under subparagraph (A)
may be used by officers and employees of the
Department of State for the purposes of, and to
the extent necessary in, carrying out the
requirements of section 32101 of the FAST Act.
(12) Qualified tax collection contractors.--Persons
providing services pursuant to a qualified tax
collection contract under section 6306 may, if speaking
to a person who has identified himself or herself as
having the name of the taxpayer to which a tax
receivable (within the meaning of such section)
relates, identify themselves as contractors of the
Internal Revenue Service and disclose the business name
of the contractor, and the nature, subject, and reason
for the contact. Disclosures under this paragraph shall
be made only in such situations and under such
conditions as have been approved by the Secretary.
(13) Disclosure to whistleblowers.--
(A) In general.--The Secretary may disclose,
to any individual providing information
relating to any purpose described in paragraph
(1) or (2) of section 7623(a), return
information related to the investigation of any
taxpayer with respect to whom the individual
has provided such information, but only to the
extent that such disclosure is necessary in
obtaining information, which is not otherwise
reasonably available, with respect to the
correct determination of tax liability for tax,
or the amount to be collected with respect to
the enforcement of any other provision of this
title.
(B) Updates on whistleblower
investigations.--The Secretary shall disclose
to an individual providing information relating
to any purpose described in paragraph (1) or
(2) of section 7623(a) the following:
(i) Not later than 60 days after a
case for which the individual has
provided information has been referred
for an audit or examination, a notice
with respect to such referral.
(ii) Not later than 60 days after a
taxpayer with respect to whom the
individual has provided information has
made a payment of tax with respect to
tax liability to which such information
relates, a notice with respect to such
payment.
(iii) Subject to such requirements
and conditions as are prescribed by the
Secretary, upon a written request by
such individual--
(I) information on the status
and stage of any investigation
or action related to such
information, and
(II) in the case of a
determination of the amount of
any award under section
7623(b), the reasons for such
determination.
Clause (iii) shall not apply to any information
if the Secretary determines that disclosure of
such information would seriously impair Federal
tax administration. Information described in
clauses (i), (ii), and (iii) may be disclosed
to a designee of the individual providing such
information in accordance with guidance
provided by the Secretary.
(14) Disclosure of return information for purposes of
cybersecurity and the prevention of identity theft tax
refund fraud.--
(A) In general.--Under such procedures and
subject to such conditions as the Secretary may
prescribe, the Secretary may disclose specified
return information to specified ISAC
participants to the extent that the Secretary
determines such disclosure is in furtherance of
effective Federal tax administration relating
to the detection or prevention of identity
theft tax refund fraud, validation of taxpayer
identity, authentication of taxpayer returns,
or detection or prevention of cybersecurity
threats.
(B) Specified ISAC participants.--For
purposes of this paragraph--
(i) In general.--The term ``specified
ISAC participant'' means--
(I) any person designated by
the Secretary as having primary
responsibility for a function
performed with respect to the
information sharing and
analysis center described in
section 2003(a) of the Taxpayer
First Act, and
(II) any person subject to
the requirements of section
7216 and which is a participant
in such information sharing and
analysis center.
(ii) Information sharing agreement.--
Such term shall not include any person
unless such person has entered into a
written agreement with the Secretary
setting forth the terms and conditions
for the disclosure of information to
such person under this paragraph,
including requirements regarding the
protection and safeguarding of such
information by such person.
(C) Specified return information.--For
purposes of this paragraph, the term
``specified return information'' means--
(i) in the case of a return which is
in connection with a case of potential
identity theft refund fraud--
(I) in the case of such
return filed electronically,
the internet protocol address,
device identification, email
domain name, speed of
completion, method of
authentication, refund method,
and such other return
information related to the
electronic filing
characteristics of such return
as the Secretary may identify
for purposes of this subclause,
and
(II) in the case of such
return prepared by a tax return
preparer, identifying
information with respect to
such tax return preparer,
including the preparer taxpayer
identification number and
electronic filer identification
number of such preparer,
(ii) in the case of a return which is
in connection with a case of a identity
theft refund fraud which has been
confirmed by the Secretary (pursuant to
such procedures as the Secretary may
provide), the information referred to
in subclauses (I) and (II) of clause
(i), the name and taxpayer
identification number of the taxpayer
as it appears on the return, and any
bank account and routing information
provided for making a refund in
connection with such return, and
(iii) in the case of any
cybersecurity threat to the Internal
Revenue Service, information similar to
the information described in subclauses
(I) and (II) of clause (i) with respect
to such threat.
(D) Restriction on use of disclosed
information.--
(i) Designated third parties.--Any
return information received by a person
described in subparagraph (B)(i)(I)
shall be used only for the purposes of
and to the extent necessary in--
(I) performing the function
such person is designated to
perform under such
subparagraph,
(II) facilitating disclosures
authorized under subparagraph
(A) to persons described in
subparagraph (B)(i)(II), and
(III) facilitating
disclosures authorized under
subsection (d) to participants
in such information sharing and
analysis center.
(ii) Return preparers.--Any return
information received by a person
described in subparagraph (B)(i)(II)
shall be treated for purposes of
section 7216 as information furnished
to such person for, or in connection
with, the preparation of a return of
the tax imposed under chapter 1.
(E) Data protection and safeguards.--Return
information disclosed under this paragraph
shall be subject to such protections and
safeguards as the Secretary may require in
regulations or other guidance or in the written
agreement referred to in subparagraph (B)(ii).
Such written agreement shall include a
requirement that any unauthorized access to
information disclosed under this paragraph, and
any breach of any system in which such
information is held, be reported to the
Treasury Inspector General for Tax
Administration.
(15) Disclosures to Social Security Administration to
identify tax receivables not eligible for collection
pursuant to qualified tax collection contracts.--In the
case of any individual involved with a tax receivable
which the Secretary has identified for possible
collection pursuant to a qualified tax collection
contract (as defined in section 6306(b)), the Secretary
may disclose the taxpayer identity and date of birth of
such individual to officers, employees, and contractors
of the Social Security Administration to determine if
such tax receivable is not eligible for collection
pursuant to such a qualified tax collection contract by
reason of section 6306(d)(3)(E).
(l) Disclosure of returns and return information for purposes
other than tax administration.--
(1) Disclosure of certain returns and return
information to Social Security Administration and
Railroad Retirement Board.--The Secretary may, upon
written request, disclose returns and return
information with respect to--
(A) taxes imposed by chapters 2, 21, and 24,
to the Social Security Administration for
purposes of its administration of the Social
Security Act;
(B) a plan to which part I of subchapter D of
chapter 1 applies, to the Social Security
Administration for purposes of carrying out its
responsibility under section 1131 of the Social
Security Act, limited, however to return
information described in section 6057(d); and
(C) taxes imposed by chapter 22, to the
Railroad Retirement Board for purposes of its
administration of the Railroad Retirement Act.
(2) Disclosure of returns and return information to
the Department of Labor and Pension Benefit Guaranty
Corporation.--The Secretary may, upon written request,
furnish returns and return information to the proper
officers and employees of the Department of Labor and
the Pension Benefit Guaranty Corporation for purposes
of, but only to the extent necessary in, the
administration of titles I and IV of the Employee
Retirement Income Security Act of 1974.
(3) Disclosure that applicant for Federal loan has
tax delinquent account.--
(A) In general.--Upon written request, the
Secretary may disclose to the head of the
Federal agency administering any included
Federal loan program whether or not an
applicant for a loan under such program has a
tax delinquent account.
(B) Restriction on disclosure.--Any
disclosure under subparagraph (A) shall be made
only for the purpose of, and to the extent
necessary in, determining the creditworthiness
of the applicant for the loan in question.
(C) Included Federal loan program defined.--
For purposes of this paragraph, the term
``included Federal loan program'' means any
program under which the United States or a
Federal agency makes, guarantees, or insures
loans.
(4) Disclosure of returns and return information for
use in personnel or claimant representative matters.--
The Secretary may disclose returns and return
information--
(A) upon written request--
(i) to an employee or former employee
of the Department of the Treasury, or
to the duly authorized legal
representative of such employee or
former employee, who is or may be a
party to any administrative action or
proceeding affecting the personnel
rights of such employee or former
employee; or
(ii) to any person, or to the duly
authorized legal representative of such
person, whose rights are or may be
affected by an administrative action or
proceeding under section 330 of title
31, United States Code,
solely for use in the action or proceeding, or
in preparation for the action or proceeding,
but only to the extent that the Secretary
determines that such returns or return
information is or may be relevant and material
to the action or proceeding; or
(B) to officers and employees of the
Department of the Treasury for use in any
action or proceeding described in subparagraph
(A), or in preparation for such action or
proceeding, to the extent necessary to advance
or protect the interests of the United States.
(5) Social Security Administration.--Upon written
request by the Commissioner of Social Security, the
Secretary may disclose information returns filed
pursuant to part III of subchapter A of chapter 61 of
this subtitle for the purpose of--
(A) carrying out, in accordance with an
agreement entered into pursuant to section 232
of the Social Security Act, an effective return
processing program; or
(B) providing information regarding the
mortality status of individuals for
epidemiological and similar research in
accordance with section 1106(d) of the Social
Security Act.
(6) Disclosure of return information to Federal,
State, and local child support enforcement agencies.--
(A) Return information from Internal Revenue
Service.--The Secretary may, upon written
request, disclose to the appropriate Federal,
State, or local child support enforcement
agency--
(i) available return information from
the master files of the Internal
Revenue Service relating to the social
security account number (or numbers, if
the individual involved has more than
one such number), address, filing
status, amounts and nature of income,
and the number of dependents reported
on any return filed by, or with respect
to, any individual with respect to whom
child support obligations are sought to
be established or enforced pursuant to
the provisions of part D of title IV of
the Social Security Act and with
respect to any individual to whom such
support obligations are owing, and
(ii) available return information
reflected on any return filed by, or
with respect to, any individual
described in clause (i) relating to the
amount of such individual's gross
income (as defined in section 61) or
consisting of the names and addresses
of payors of such income and the names
of any dependents reported on such
return, but only if such return
information is not reasonably available
from any other source.
(B) Disclosure to certain agents.--The
following information disclosed to any child
support enforcement agency under subparagraph
(A) with respect to any individual with respect
to whom child support obligations are sought to
be established or enforced may be disclosed by
such agency to any agent of such agency which
is under contract with such agency to carry out
the purposes described in subparagraph (C):
(i) The address and social security
account number (or numbers) of such
individual.
(ii) The amount of any reduction
under section 6402(c) (relating to
offset of past-due support against
overpayments) in any overpayment
otherwise payable to such individual.
(C) Restriction on disclosure.--Information
may be disclosed under this paragraph only for
purposes of, and to the extent necessary in,
establishing and collecting child support
obligations from, and locating, individuals
owing such obligations.
(7) Disclosure of return information to Federal,
State, and local agencies administering certain
programs under the Social Security Act, the Food and
Nutrition Act of 2008, or title 38, United States Code,
or certain housing assistance programs.--
(A) Return information from Social Security
Administration.--The Commissioner of Social
Security shall, upon written request, disclose
return information from returns with respect to
net earnings from self-employment (as defined
in section 1402), wages (as defined in section
3121(a) or 3401(a)), and payments of retirement
income, which have been disclosed to the Social
Security Administration as provided by
paragraph (1) or (5) of this subsection, to any
Federal, State, or local agency administering a
program listed in subparagraph (D).
(B) Return information from Internal Revenue
Service.--The Secretary shall, upon written
request, disclose current return information
from returns with respect to unearned income
from the Internal Revenue Service files to any
Federal, State, or local agency administering a
program listed in subparagraph (D).
(C) Restriction on disclosure.--The
Commissioner of Social Security and the
Secretary shall disclose return information
under subparagraphs (A) and (B) only for
purposes of, and to the extent necessary in,
determining eligibility for, or the correct
amount of, benefits under a program listed in
subparagraph (D).
(D) Programs to which rule applies.--The
programs to which this paragraph applies are:
(i) a State program funded under part
A of title IV of the Social Security
Act;
(ii) medical assistance provided
under a State plan approved under title
XIX of the Social Security Act or
subsidies provided under section 1860D-
14 of such Act;
(iii) supplemental security income
benefits provided under title XVI of
the Social Security Act, and federally
administered supplementary payments of
the type described in section 1616(a)
of such Act (including payments
pursuant to an agreement entered into
under section 212(a) of Public Law 93-
66);
(iv) any benefits provided under a
State plan approved under title I, X,
XIV, or XVI of the Social Security Act
(as those titles apply to Puerto Rico,
Guam, and the Virgin Islands);
(v) unemployment compensation
provided under a State law described in
section 3304 of this title;
(vi) assistance provided under the
Food and Nutrition Act of 2008;
(vii) State-administered
supplementary payments of the type
described in section 1616(a) of the
Social Security Act (including payments
pursuant to an agreement entered into
under section 212(a) of Public Law 93-
66);
(viii)(I) any needs-based pension
provided under chapter 15 of title 38,
United States Code, or under any other
law administered by the Secretary of
Veterans Affairs;
(II) parents' dependency and
indemnity compensation provided under
section 1315 of title 38, United States
Code;
(III) health-care services furnished
under sections 1710(a)(2)(G),
1710(a)(3), and 1710(b) of such title;
and
(IV) compensation paid under chapter
11 of title 38, United States Code, at
the 100 percent rate based solely on
unemployability and without regard to
the fact that the disability or
disabilities are not rated as 100
percent disabling under the rating
schedule; and
(ix) any housing assistance program
administered by the Department of
Housing and Urban Development that
involves initial and periodic review of
an applicant's or participant's income,
except that return information may be
disclosed under this clause only on
written request by the Secretary of
Housing and Urban Development and only
for use by officers and employees of
the Department of Housing and Urban
Development with respect to applicants
for and participants in such programs.
Only return information from returns with
respect to net earnings from self-employment
and wages may be disclosed under this paragraph
for use with respect to any program described
in clause (viii)(IV).
(8) Disclosure of certain return information by
Social Security Administration to Federal, State, and
local child support enforcement agencies.--
(A) In general.--Upon written request, the
Commissioner of Social Security shall disclose
directly to officers and employees of a Federal
or State or local child support enforcement
agency return information from returns with
respect to social security account numbers, net
earnings from self-employment (as defined in
section 1402), wages (as defined in section
3121(a) or 3401(a)), and payments of retirement
income which have been disclosed to the Social
Security Administration as provided by
paragraph (1) or (5) of this subsection.
(B) Restriction on disclosure.--The
Commissioner of Social Security shall disclose
return information under subparagraph (A) only
for purposes of, and to the extent necessary
in, establishing and collecting child support
obligations from, and locating, individuals
owing such obligations. For purposes of the
preceding sentence, the term ``child support
obligations'' only includes obligations which
are being enforced pursuant to a plan described
in section 454 of the Social Security Act which
has been approved by the Secretary of Health
and Human Services under part D of title IV of
such Act.
(C) State or local child support enforcement
agency.--For purposes of this paragraph, the
term ``State or local child support enforcement
agency'' means any agency of a State or
political subdivision thereof operating
pursuant to a plan described in subparagraph
(B).
(9) Disclosure of alcohol fuel producers to
administrators of State alcohol laws.--Notwithstanding
any other provision of this section, the Secretary may
disclose--
(A) the name and address of any person who is
qualified to produce alcohol for fuel use under
section 5181, and
(B) the location of any premises to be used
by such person in producing alcohol for fuel,
to any State agency, body, or commission, or its legal
representative, which is charged under the laws of such
State with responsibility for administration of State
alcohol laws solely for use in the administration of
such laws.
(10) Disclosure of certain information to agencies
requesting a reduction under subsection (c), (d), (e),
or (f) of section 6402.--
(A) Return information from Internal Revenue
Service.--The Secretary may, upon receiving a
written request, disclose to officers and
employees of any agency seeking a reduction
under subsection (c), (d), (e), or (f) of
section 6402, to officers and employees of the
Department of Labor for purposes of
facilitating the exchange of data in connection
with a notice submitted under subsection
(f)(5)(C) of section 6402, and to officers and
employees of the Department of the Treasury in
connection with such reduction--
(i) taxpayer identity information
with respect to the taxpayer against
whom such a reduction was made or not
made and with respect to any other
person filing a joint return with such
taxpayer,
(ii) the fact that a reduction has
been made or has not been made under
such subsection with respect to such
taxpayer,
(iii) the amount of such reduction,
(iv) whether such taxpayer filed a
joint return, and
(v) the fact that a payment was made
(and the amount of the payment) to the
spouse of the taxpayer on the basis of
a joint return.
(B) Restriction on use of disclosed
information.--(i) Any officers and employees of
an agency receiving return information under
subparagraph (A) shall use such information
only for the purposes of, and to the extent
necessary in, establishing appropriate agency
records, locating any person with respect to
whom a reduction under subsection (c), (d),
(e), or (f) of section 6402 is sought for
purposes of collecting the debt with respect to
which the reduction is sought, or in the
defense of any litigation or administrative
procedure ensuing from a reduction made under
subsection (c), (d), (e), or (f) of section
6402.
(ii) Notwithstanding clause (i), return
information disclosed to officers and employees
of the Department of Labor may be accessed by
agents who maintain and provide technological
support to the Department of Labor's Interstate
Connection Network (ICON) solely for the
purpose of providing such maintenance and
support.
(11) Disclosure of return information to carry out
Federal Employees' Retirement System.--
(A) In general.--The Commissioner of Social
Security shall, on written request, disclose to
the Office of Personnel Management return
information from returns with respect to net
earnings from self-employment (as defined in
section 1402), wages (as defined in section
3121(a) or 3401(a)), and payments of retirement
income, which have been disclosed to the Social
Security Administration as provided by
paragraph (1) or (5).
(B) Restriction on disclosure.--The
Commissioner of Social Security shall disclose
return information under subparagraph (A) only
for purposes of, and to the extent necessary
in, the administration of chapters 83 and 84 of
title 5, United States Code.
(12) Disclosure of certain taxpayer identity
information for verification of employment status of
medicare beneficiary and spouse of medicare
beneficiary.--
(A) Return information from Internal Revenue
Service.--The Secretary shall, upon written
request from the Commissioner of Social
Security, disclose to the Commissioner
available filing status and taxpayer identity
information from the individual master files of
the Internal Revenue Service relating to
whether any medicare beneficiary identified by
the Commissioner was a married individual (as
defined in section 7703) for any specified year
after 1986, and, if so, the name of the spouse
of such individual and such spouse's TIN.
(B) Return information from Social Security
Administration.--The Commissioner of Social
Security shall, upon written request from the
Administrator of the Centers for Medicare &
Medicaid Services, disclose to the
Administrator the following information:
(i) The name and TIN of each medicare
beneficiary who is identified as having
received wages (as defined in section
3401(a)), above an amount (if any)
specified by the Secretary of Health
and Human Services, from a qualified
employer in a previous year.
(ii) For each medicare beneficiary
who was identified as married under
subparagraph (A) and whose spouse is
identified as having received wages,
above an amount (if any) specified by
the Secretary of Health and Human
Services, from a qualified employer in
a previous year--
(I) the name and TIN of the
medicare beneficiary, and
(II) the name and TIN of the
spouse.
(iii) With respect to each such
qualified employer, the name, address,
and TIN of the employer and the number
of individuals with respect to whom
written statements were furnished under
section 6051 by the employer with
respect to such previous year.
(C) Disclosure by Centers for Medicare &
Medicaid Services.--With respect to the
information disclosed under subparagraph (B),
the Administrator of the Centers for Medicare &
Medicaid Services may disclose--
(i) to the qualified employer
referred to in such subparagraph the
name and TIN of each individual
identified under such subparagraph as
having received wages from the employer
(hereinafter in this subparagraph
referred to as the ``employee'') for
purposes of determining during what
period such employee or the employee's
spouse may be (or have been) covered
under a group health plan of the
employer and what benefits are or were
covered under the plan (including the
name, address, and identifying number
of the plan),
(ii) to any group health plan which
provides or provided coverage to such
an employee or spouse, the name of such
employee and the employee's spouse (if
the spouse is a medicare beneficiary)
and the name and address of the
employer, and, for the purpose of
presenting a claim to the plan--
(I) the TIN of such employee
if benefits were paid under
title XVIII of the Social
Security Act with respect to
the employee during a period in
which the plan was a primary
plan (as defined in section
1862(b)(2)(A) of the Social
Security Act), and
(II) the TIN of such spouse
if benefits were paid under
such title with respect to the
spouse during such period, and
(iii) to any agent of such
Administrator the information referred
to in subparagraph (B) for purposes of
carrying out clauses (i) and (ii) on
behalf of such Administrator.
(D) Special rules.--
(i) Restrictions on disclosure.--
Information may be disclosed under this
paragraph only for purposes of, and to
the extent necessary in, determining
the extent to which any medicare
beneficiary is covered under any group
health plan.
(ii) Timely response to requests.--
Any request made under subparagraph (A)
or (B) shall be complied with as soon
as possible but in no event later than
120 days after the date the request was
made.
(E) Definitions.--For purposes of this
paragraph--
(i) Medicare beneficiary.--The term
``medicare beneficiary'' means an
individual entitled to benefits under
part A, or enrolled under part B, of
title XVIII of the Social Security Act,
but does not include such an individual
enrolled in part A under section 1818.
(ii) Group health plan.--The term
``group health plan'' means any group
health plan (as defined in section
5000(b)(1)).
(iii) Qualified employer.--The term
``qualified employer'' means, for a
calendar year, an employer which has
furnished written statements under
section 6051 with respect to at least
20 individuals for wages paid in the
year.
(13) Disclosure of return information to carry out
the Higher Education Act of 1965.--
(A) Applications and recertifications for
income-contingent or income-based repayment.--
The Secretary shall, upon written request from
the Secretary of Education, disclose to any
authorized person, only for the purpose of (and
to the extent necessary in) determining
eligibility for, or repayment obligations
under, income-contingent or income-based
repayment plans under title IV of the Higher
Education Act of 1965 with respect to loans
under part D of such title, the following
return information from returns (for any
taxable year specified by the Secretary of
Education as relevant to such purpose) of an
individual certified by the Secretary of
Education as having provided approval under
section 494(a)(2) of such Act (as in effect on
the date of enactment of this paragraph) for
such disclosure:
(i) Taxpayer identity information.
(ii) Filing status.
(iii) Adjusted gross income.
(iv) Total number of exemptions
claimed, if applicable.
(v) Number of dependents taken into
account in determining the credit
allowed under section 24.
(vi) If applicable, the fact that
there was no return filed.
(B) Discharge of loan based on total and
permanent disability.--The Secretary shall,
upon written request from the Secretary of
Education, disclose to any authorized person,
only for the purpose of (and to the extent
necessary in) monitoring and reinstating loans
under title IV of the Higher Education Act of
1965 that were discharged based on a total and
permanent disability (within the meaning of
section 437(a) of such Act), the following
return information from returns (for any
taxable year specified by the Secretary of
Education as relevant to such purpose) of an
individual certified by the Secretary of
Education as having provided approval under
section 494(a)(3) of such Act (as in effect on
the date of enactment of this paragraph) for
such disclosure:
(i) The return information described
in clauses (i), (ii), and (vi) of
subparagraph (A).
(ii) The return information described
in subparagraph (C)(ii).
(C) Federal student financial aid.--The
Secretary shall, upon written request from the
Secretary of Education, disclose to any
authorized person, only for the purpose of (and
to the extent necessary in) determining
eligibility for, and amount of, Federal student
financial aid under a program authorized under
subpart 1 of part A, part C, or part D of title
IV of the Higher Education Act of 1965 the
following return information from returns (for
the taxable year used for purposes of section
480(a) of such Act) of an individual certified
by the Secretary of Education as having
provided approval under section 494(a)(1) of
such Act (as in effect on the date of enactment
of this paragraph) for such disclosure:
(i) Return information described in
clauses (i) through (vi) of
subparagraph (A).
(ii) The amount of any net earnings
from self-employment (as defined in
section 1402(a)), wages (as defined in
section 3121(a) or 3401(a)), and
taxable income from a farming business
(as defined in section 263A(e)(4)).
(iii) Amount of total income tax.
(iv) Amount of any credit allowed
under section 25A.
(v) Amount of individual retirement
account distributions not included in
adjusted gross income.
(vi) Amount of individual retirement
account contributions and payments to
self-employed SEP, Keogh, and other
qualified plans which were deducted
from income.
(vii) Amount of tax-exempt interest
received.
(viii) Amounts from retirement
pensions and annuities not included in
adjusted gross income.
(ix) If applicable, the fact that any
of the following schedules (or
equivalent successor schedules) were
filed with the return:
(I) Schedule A.
(II) Schedule B.
(III) Schedule D.
(IV) Schedule E.
(V) Schedule F.
(VI) Schedule H.
(x) If applicable, the amount
reported on Schedule C (or an
equivalent successor schedule) as net
profit or loss.
(D) Additional uses of disclosed
information.--
(i) In general.--In addition to the
purposes for which information is
disclosed under subparagraphs (A), (B),
and (C), return information so
disclosed may be used by an authorized
person, with respect to income-
contingent or income-based repayment
plans, awards of Federal student
financial aid under a program
authorized under subpart 1 of part A,
part C, or part D of title IV of the
Higher Education Act of 1965, and
discharges of loans based on a total
and permanent disability (within the
meaning of section 437(a) of such Act),
for purposes of--
(I) reducing the net cost of
improper payments under such
plans, relating to such awards,
or relating to such discharges,
(II) oversight activities by
the Office of Inspector General
of the Department of Education
as authorized by the Inspector
General Act of 1978, and
(III) conducting analyses and
forecasts for estimating costs
related to such plans, awards,
or discharges.
(ii) Limitation.--The purposes
described in clause (i) shall not
include the conduct of criminal
investigations or prosecutions.
(iii) Redisclosure to institutions of
higher education, State higher
education agencies, and designated
scholarship organizations.--Authorized
persons may redisclose return
information received under subparagraph
(C), solely for the use in the
application, award, and administration
of financial aid awarded by the Federal
government or awarded by a person
described in subclause (I), (II), or
(III), to the following persons:
(I) An institution of higher
education participating in a
program under subpart 1 of part
A, part C, or part D of title
IV of the Higher Education Act
of 1965.
(II) A State higher education
agency.
(III) A scholarship
organization which is an entity
designated (prior to the date
of the enactment of this
clause) by the Secretary of
Education under section
483(a)(3)(E) of such Act.
This clause shall only apply to the extent
that the taxpayer with respect to whom the
return information relates provides written
consent for such redisclosure to the Secretary
of Education. Under such terms and conditions
as may be prescribed by the Secretary, after
consultation with the Department of Education,
an institution of higher education described in
subclause (I) or a State higher education
agency described in subclause (II) may
designate a contractor of such institution or
state agency to receive return information on
behalf of such institution or state agency to
administer aspects of the institution's or
state agency's activities for the application,
award, and administration of such financial
aid.
(iv) Redisclosure to Office of
Inspector General, independent
auditors, and contractors.--Any return
information which is redisclosed under
clause (iii)--
(I) may be further disclosed
by persons described in
subclauses (I), (II), or (III)
of clause (iii) or persons
designated in the last sentence
of clause (iii) to the Office
of Inspector General of the
Department of Education and
independent auditors conducting
audits of such person's
administration of the programs
for which the return
information was received, and
(II) may be further disclosed
by persons described in
subclauses (I), (II), or (III)
of clause (iii) to contractors
of such entities,
but only to the extent necessary in carrying
out the purposes described in such clause
(iii).
(v) Redisclosure to family members.--
In addition to the purposes for which
information is disclosed and used under
subparagraphs (A) and (C), or
redisclosed under clause (iii), any
return information so disclosed or
redisclosed may be further disclosed to
any individual certified by the
Secretary of Education as having
provided approval under paragraph (1)
or (2) of section 494(a) of the Higher
Education Act of 1965, as the case may
be, for disclosure related to the
income-contingent or income-based
repayment plan under subparagraph (A)
or the eligibility for, and amount of,
Federal student financial aid described
in subparagraph (C).
(vi) Redisclosure of FAFSA
information.--Return information
received under subparagraph (C) may be
redisclosed in accordance with
subsection (c) of section 494 of the
Higher Education Act of 1965 (as in
effect on the date of enactment of the
COVID-related Tax Relief Act of 2020)
to carry out the purposes specified in
such subsection.
(E) Authorized person.--For purposes of this
paragraph, the term ``authorized person''
means, with respect to information disclosed
under subparagraph (A), (B), or (C), any person
who--
(i) is an officer, employee, or
contractor, of the Department of
Education, and
(ii) is specifically authorized and
designated by the Secretary of
Education for purposes of such
subparagraph (applied separately with
respect to each such subparagraph).
(F) Joint returns.--In the case of a joint
return, any disclosure authorized under
subparagraph (A), (B), or (C), and any
redisclosure authorized under clause (iii),
(iv) (v), or (vi) of subparagraph (D), with
respect to an individual shall be treated for
purposes of this paragraph as applying with
respect to the taxpayer.
(14) Disclosure of return information to United
States Customs Service.--The Secretary may, upon
written request from the Commissioner of the United
States Customs Service, disclose to officers and
employees of the Department of the Treasury such return
information with respect to taxes imposed by chapters 1
and 6 as the Secretary may prescribe by regulations,
solely for the purpose of, and only to the extent
necessary in--
(A) ascertaining the correctness of any entry
in audits as provided for in section 509 of the
Tariff Act of 1930 (19 U.S.C. 1509), or
(B) other actions to recover any loss of
revenue, or to collect duties, taxes, and fees,
determined to be due and owing pursuant to such
audits.
(15) Disclosure of returns filed under section
6050I.--The Secretary may, upon written request,
disclose to officers and employees of--
(A) any Federal agency,
(B) any agency of a State or local
government, or
(C) any agency of the government of a foreign
country,
information contained on returns filed under section
6050I. Any such disclosure shall be made on the same
basis, and subject to the same conditions, as apply to
disclosures of information on reports filed under
section 5313 of title 31, United States Code; except
that no disclosure under this paragraph shall be made
for purposes of the administration of any tax law.
(16) Disclosure of return information for purposes of
administering the District of Columbia Retirement
Protection Act of 1997.--
(A) In general.--Upon written request
available return information (including such
information disclosed to the Social Security
Administration under paragraph (1) or (5) of
this subsection), relating to the amount of
wage income (as defined in section 3121(a) or
3401(a)), the name, address, and identifying
number assigned under section 6109, of payors
of wage income, taxpayer identity (as defined
in section 6103(b)(6)), and the occupational
status reflected on any return filed by, or
with respect to, any individual with respect to
whom eligibility for, or the correct amount of,
benefits under the District of Columbia
Retirement Protection Act of 1997, is sought to
be determined, shall be disclosed by the
Commissioner of Social Security, or to the
extent not available from the Social Security
Administration, by the Secretary, to any duly
authorized officer or employee of the
Department of the Treasury, or a Trustee or any
designated officer or employee of a Trustee (as
defined in the District of Columbia Retirement
Protection Act of 1997), or any actuary engaged
by a Trustee under the terms of the District of
Columbia Retirement Protection Act of 1997,
whose official duties require such disclosure,
solely for the purpose of, and to the extent
necessary in, determining an individual's
eligibility for, or the correct amount of,
benefits under the District of Columbia
Retirement Protection Act of 1997.
(B) Disclosure for use in judicial or
administrative proceedings.--Return information
disclosed to any person under this paragraph
may be disclosed in a judicial or
administrative proceeding relating to the
determination of an individual's eligibility
for, or the correct amount of, benefits under
the District of Columbia Retirement Protection
Act of 1997.
(17) Disclosure to National Archives and Records
Administration.--The Secretary shall, upon written
request from the Archivist of the United States,
disclose or authorize the disclosure of returns and
return information to officers and employees of the
National Archives and Records Administration for
purposes of, and only to the extent necessary in, the
appraisal of records for destruction or retention. No
such officer or employee shall, except to the extent
authorized by subsection (f), (i)(8), or (p), disclose
any return or return information disclosed under the
preceding sentence to any person other than to the
Secretary, or to another officer or employee of the
National Archives and Records Administration whose
official duties require such disclosure for purposes of
such appraisal.
(18) Disclosure of return information for purposes of
carrying out a program for advance payment of credit
for health insurance costs of eligible individuals.--
The Secretary may disclose to providers of health
insurance for any certified individual (as defined in
section 7527(c)) return information with respect to
such certified individual only to the extent necessary
to carry out the program established by section 7527
(relating to advance payment of credit for health
insurance costs of eligible individuals).
(19) Disclosure of return information for purposes of
providing transitional assistance under medicare
discount card program.--
(A) In general.--The Secretary, upon written
request from the Secretary of Health and Human
Services pursuant to carrying out section
1860D-31 of the Social Security Act, shall
disclose to officers, employees, and
contractors of the Department of Health and
Human Services with respect to a taxpayer for
the applicable year--
(i)(I) whether the adjusted gross
income, as modified in accordance with
specifications of the Secretary of
Health and Human Services for purposes
of carrying out such section, of such
taxpayer and, if applicable, such
taxpayer's spouse, for the applicable
year, exceeds the amounts specified by
the Secretary of Health and Human
Services in order to apply the 100 and
135 percent of the poverty lines under
such section, (II) whether the return
was a joint return, and (III) the
applicable year, or
(ii) if applicable, the fact that
there is no return filed for such
taxpayer for the applicable year.
(B) Definition of applicable year.--For the
purposes of this subsection, the term
``applicable year'' means the most recent
taxable year for which information is available
in the Internal Revenue Service's taxpayer data
information systems, or, if there is no return
filed for such taxpayer for such year, the
prior taxable year.
(C) Restriction on use of disclosed
information.--Return information disclosed
under this paragraph may be used only for the
purposes of determining eligibility for and
administering transitional assistance under
section 1860D-31 of the Social Security Act.
(20) Disclosure of return information to carry out
Medicare part B premium subsidy adjustment and part D
base beneficiary premium increase.--
(A) In general.--The Secretary shall, upon
written request from the Commissioner of Social
Security, disclose to officers, employees, and
contractors of the Social Security
Administration return information of a taxpayer
whose premium (according to the records of the
Secretary) may be subject to adjustment under
section 1839(i) or increase under section
1860D-13(a)(7) of the Social Security Act. Such
return information shall be limited to--
(i) taxpayer identity information
with respect to such taxpayer,
(ii) the filing status of such
taxpayer,
(iii) the adjusted gross income of
such taxpayer,
(iv) the amounts excluded from such
taxpayer's gross income under sections
135 and 911 to the extent such
information is available,
(v) the interest received or accrued
during the taxable year which is exempt
from the tax imposed by chapter 1 to
the extent such information is
available,
(vi) the amounts excluded from such
taxpayer's gross income by sections 931
and 933 to the extent such information
is available,
(vii) such other information relating
to the liability of the taxpayer as is
prescribed by the Secretary by
regulation as might indicate in the
case of a taxpayer who is an individual
described in subsection (i)(4)(B)(iii)
of section 1839 of the Social Security
Act that the amount of the premium of
the taxpayer under such section may be
subject to adjustment under subsection
(i) of such section or increase under
section 1860D-13(a)(7) of such Act and
the amount of such adjustment, and
(viii) the taxable year with respect
to which the preceding information
relates.
(B) Restriction on use of disclosed
information.--
(i) In general.--Return information
disclosed under subparagraph (A) may be
used by officers, employees, and
contractors of the Social Security
Administration only for the purposes
of, and to the extent necessary in,
establishing the appropriate amount of
any premium adjustment under such
section 1839(i) or increase under such
section 1860D-13(a)(7) or for the
purpose of resolving taxpayer appeals
with respect to any such premium
adjustment or increase.
(ii) Disclosure to other agencies.--
Officers, employees, and contractors of
the Social Security Administration may
disclose--
(I) the taxpayer identity
information and the amount of
the premium subsidy adjustment
or premium increase with
respect to a taxpayer described
in subparagraph (A) to
officers, employees, and
contractors of the Centers for
Medicare and Medicaid Services,
to the extent that such
disclosure is necessary for the
collection of the premium
subsidy amount or the increased
premium amount,
(II) the taxpayer identity
information and the amount of
the premium subsidy adjustment
or the increased premium amount
with respect to a taxpayer
described in subparagraph (A)
to officers and employees of
the Office of Personnel
Management and the Railroad
Retirement Board, to the extent
that such disclosure is
necessary for the collection of
the premium subsidy amount or
the increased premium amount,
(III) return information with
respect to a taxpayer described
in subparagraph (A) to officers
and employees of the Department
of Health and Human Services to
the extent necessary to resolve
administrative appeals of such
premium subsidy adjustment or
increased premium, and
(IV) return information with
respect to a taxpayer described
in subparagraph (A) to officers
and employees of the Department
of Justice for use in judicial
proceedings to the extent
necessary to carry out the
purposes described in clause
(i).
(21) Disclosure of return information to carry out
eligibility requirements for certain programs.--
(A) In general.--The Secretary, upon written
request from the Secretary of Health and Human
Services, shall disclose to officers,
employees, and contractors of the Department of
Health and Human Services return information of
any taxpayer whose income is relevant in
determining any premium tax credit under
section 36B or any cost-sharing reduction under
section 1402 of the Patient Protection and
Affordable Care Act or eligibility for
participation in a State medicaid program under
title XIX of the Social Security Act, a State's
children's health insurance program under title
XXI of the Social Security Act, or a basic
health program under section 1331 of Patient
Protection and Affordable Care Act. Such return
information shall be limited to--
(i) taxpayer identity information
with respect to such taxpayer,
(ii) the filing status of such
taxpayer,
(iii) the number of individuals for
whom a deduction is allowed under
section 151 with respect to the
taxpayer (including the taxpayer and
the taxpayer's spouse),
(iv) the modified adjusted gross
income (as defined in section 36B) of
such taxpayer and each of the other
individuals included under clause (iii)
who are required to file a return of
tax imposed by chapter 1 for the
taxable year,
(v) such other information as is
prescribed by the Secretary by
regulation as might indicate whether
the taxpayer is eligible for such
credit or reduction (and the amount
thereof), and
(vi) the taxable year with respect to
which the preceding information relates
or, if applicable, the fact that such
information is not available.
(B) Information to exchange and State
agencies.--The Secretary of Health and Human
Services may disclose to an Exchange
established under the Patient Protection and
Affordable Care Act or its contractors, or to a
State agency administering a State program
described in subparagraph (A) or its
contractors, any inconsistency between the
information provided by the Exchange or State
agency to the Secretary and the information
provided to the Secretary under subparagraph
(A).
(C) Restriction on use of disclosed
information.--Return information disclosed
under subparagraph (A) or (B) may be used by
officers, employees, and contractors of the
Department of Health and Human Services, an
Exchange, or a State agency only for the
purposes of, and to the extent necessary in--
(i) establishing eligibility for
participation in the Exchange, and
verifying the appropriate amount of,
any credit or reduction described in
subparagraph (A),
(ii) determining eligibility for
participation in the State programs
described in subparagraph (A).
(22) Disclosure of return information to Department
of Health and Human Services for purposes of enhancing
Medicare program integrity.--
(A) In general.--The Secretary shall, upon
written request from the Secretary of Health
and Human Services, disclose to officers and
employees of the Department of Health and Human
Services return information with respect to a
taxpayer who has applied to enroll, or
reenroll, as a provider of services or supplier
under the Medicare program under title XVIII of
the Social Security Act. Such return
information shall be limited to--
(i) the taxpayer identity information
with respect to such taxpayer;
(ii) the amount of the delinquent tax
debt owed by that taxpayer; and
(iii) the taxable year to which the
delinquent tax debt pertains.
(B) Restriction on disclosure.--Return
information disclosed under subparagraph (A)
may be used by officers and employees of the
Department of Health and Human Services for the
purposes of, and to the extent necessary in,
establishing the taxpayer's eligibility for
enrollment or reenrollment in the Medicare
program, or in any administrative or judicial
proceeding relating to, or arising from, a
denial of such enrollment or reenrollment, or
in determining the level of enhanced oversight
to be applied with respect to such taxpayer
pursuant to section 1866(j)(3) of the Social
Security Act.
(C) Delinquent tax debt.--For purposes of
this paragraph, the term ``delinquent tax
debt'' means an outstanding debt under this
title for which a notice of lien has been filed
pursuant to section 6323, but the term does not
include a debt that is being paid in a timely
manner pursuant to an agreement under section
6159 or 7122, or a debt with respect to which a
collection due process hearing under section
6330 is requested, pending, or completed and no
payment is required.
(23) Disclosure of return information to department
of labor to carry out black lung benefits act.--
(A) In general.--The Commissioner of Social
Security shall, on written request with respect
to any individual, disclose to officers or
employees of the Department of Labor return
information from returns with respect to net
earnings from self-employment (as defined in
section 1402) and wages (as defined in section
3121(a) or 3401(a)) for employment for each
employer of such individual.
(B) Restriction on disclosure.--The
Commissioner of Social Security shall disclose
return information under subparagraph (A) only
for purposes of, and the extent necessary in,
carrying out the proper administration of the
Black Lung Benefits Act (30 U.S.C. 901 et
seq.).
(m) Disclosure of taxpayer identity information.--
(1) Tax refunds.--The Secretary may disclose taxpayer
identity information to the press and other media for
purposes of notifying persons entitled to tax refunds
when the Secretary, after reasonable effort and lapse
of time, has been unable to locate such persons.
(2) Federal claims.--
(A) In general.--Except as provided in
subparagraph (B), the Secretary may, upon
written request, disclose the mailing address
of a taxpayer for use by officers, employees,
or agents of a Federal agency for purposes of
locating such taxpayer to collect or compromise
a Federal claim against the taxpayer in
accordance with sections 3711, 3717, and 3718
of title 31.
(B) Special rule for consumer reporting
agency.--In the case of an agent of a Federal
agency which is a consumer reporting agency
(within the meaning of section 603(f) of the
Fair Credit Reporting Act (15 U.S.C.
1681a(f))), the mailing address of a taxpayer
may be disclosed to such agent under
subparagraph (A) only for the purpose of
allowing such agent to prepare a commercial
credit report on the taxpayer for use by such
Federal agency in accordance with sections
3711, 3717, and 3718 of title 31.
(3) National Institute for Occupational Safety and
Health.--Upon written request, the Secretary may
disclose the mailing address of taxpayers to officers
and employees of the National Institute for
Occupational Safety and Health solely for the purpose
of locating individuals who are, or may have been,
exposed to occupational hazards in order to determine
the status of their health or to inform them of the
possible need for medical care and treatment.
(4) Individuals who owe an overpayment of Federal
Pell Grants or who have defaulted on student loans
administered by the Department of Education.--
(A) In general.--Upon written request by the
Secretary of Education, the Secretary may
disclose the mailing address of any taxpayer--
(i) who owes an overpayment of a
grant awarded to such taxpayer under
subpart 1 of part A of title IV of the
Higher Education Act of 1965, or
(ii) who has defaulted on a loan--
(I) made under part B, D, or
E of title IV of the Higher
Education Act of 1965, or
(II) made pursuant to section
3(a)(1) of the Migration and
Refugee Assistance Act of 1962
to a student at an institution
of higher education,
for use only by officers, employees, or agents
of the Department of Education for purposes of
locating such taxpayer for purposes of
collecting such overpayment or loan.
(B) Disclosure to educational institutions,
etc..--Any mailing address disclosed under
subparagraph (A)(i) may be disclosed by the
Secretary of Education to--
(i) any lender, or any State or
nonprofit guarantee agency, which is
participating under part B or D of
title IV of the Higher Education Act of
1965, or
(ii) any educational institution with
which the Secretary of Education has an
agreement under subpart 1 of part A, or
part D or E, of title IV of such Act,
for use only by officers, employees, or agents
of such lender, guarantee agency, or
institution whose duties relate to the
collection of student loans for purposes of
locating individuals who have defaulted on
student loans made under such loan programs for
purposes of collecting such loans.
(5) Individuals who have defaulted on student loans
administered by the Department of Health and Human
Services.--
(A) In general.--Upon written request by the
Secretary of Health and Human Services, the
Secretary may disclose the mailing address of
any taxpayer who has defaulted on a loan made
under part C 1 of title VII of the
Public Health Service Act or under subpart II
of part B of title VIII of such Act, for use
only by officers, employees, or agents of the
Department of Health and Human Services for
purposes of locating such taxpayer for purposes
of collecting such loan.
(B) Disclosure to schools and eligible
lenders.--Any mailing address disclosed under
subparagraph (A) may be disclosed by the
Secretary of Health and Human Services to--
(i) any school with which the
Secretary of Health and Human Services
has an agreement under subpart II
1 of part C of title VII of
the Public Health Service Act or
subpart II 1 of part B of
title VIII of such Act, or
(ii) any eligible lender (within the
meaning of section 737(4) 1
of such Act) participating under
subpart I 1 of part C of
title VII of such Act,
for use only by officers, employees, or agents
of such school or eligible lender whose duties
relate to the collection of student loans for
purposes of locating individuals who have
defaulted on student loans made under such
subparts for the purposes of collecting such
loans.
(6) Blood Donor Locator Service.--
(A) In general.--Upon written request
pursuant to section 1141 of the Social Security
Act, the Secretary shall disclose the mailing
address of taxpayers to officers and employees
of the Blood Donor Locator Service in the
Department of Health and Human Services.
(B) Restriction on disclosure.--The Secretary
shall disclose return information under
subparagraph (A) only for purposes of, and to
the extent necessary in, assisting under the
Blood Donor Locator Service authorized persons
(as defined in section 1141(h)(1) of the Social
Security Act) in locating blood donors who, as
indicated by donated blood or products derived
therefrom or by the history of the subsequent
use of such blood or blood products, have or
may have the virus for acquired immune
deficiency syndrome, in order to inform such
donors of the possible need for medical care
and treatment.
(C) Safeguards.--The Secretary shall destroy
all related blood donor records (as defined in
section 1141(h)(2) of the Social Security Act)
in the possession of the Department of the
Treasury upon completion of their use in making
the disclosure required under subparagraph (A),
so as to make such records undisclosable.
(7) Social security account statement furnished by
Social Security Administration.--Upon written request
by the Commissioner of Social Security, the Secretary
may disclose the mailing address of any taxpayer who is
entitled to receive a social security account statement
pursuant to section 1143(c) of the Social Security Act,
for use only by officers, employees or agents of the
Social Security Administration for purposes of mailing
such statement to such taxpayer.
(n) Certain other persons.--Pursuant to regulations
prescribed by the Secretary, returns and return information may
be disclosed to any person, including any person described in
section 7513(a), to the extent necessary in connection with the
processing, storage, transmission, and reproduction of such
returns and return information, the programming, maintenance,
repair, testing, and procurement of equipment, and the
providing of other services, for purposes of tax
administration.
(o) Disclosure of returns and return information with respect
to certain taxes.--
(1) Taxes imposed by subtitle E.--
(A) In general.--Returns and return
information with respect to taxes imposed by
subtitle E (relating to taxes on alcohol,
tobacco, and firearms) shall be open to
inspection by or disclosure to officers and
employees of a Federal agency whose official
duties require such inspection or disclosure.
(B) Use in certain proceedings.--Returns and
return information disclosed to a Federal
agency under subparagraph (A) may be used in an
action or proceeding (or in preparation for
such action or proceeding) brought under
section 625 of the American Jobs Creation Act
of 2004 for the collection of any unpaid
assessment or penalty arising under such Act.
(2) Taxes imposed by chapter 35.--Returns and return
information with respect to taxes imposed by chapter 35
(relating to taxes on wagering) shall, notwithstanding
any other provision of this section, be open to
inspection by or disclosure only to such person or
persons and for such purpose or purposes as are
prescribed by section 4424.
(3) Taxes imposed by section 4481.--Returns and
return information with respect to taxes imposed by
section 4481 shall be open to inspection by or
disclosure to officers and employees of United States
Customs and Border Protection of the Department of
Homeland Security whose official duties require such
inspection or disclosure for purposes of administering
such section.
(p) Procedure and recordkeeping.--
(1) Manner, time, and place of inspections.--Requests
for the inspection or disclosure of a return or return
information and such inspection or disclosure shall be
made in such manner and at such time and place as shall
be prescribed by the Secretary.
(2) Procedure.--
(A) Reproduction of returns.--A reproduction
or certified reproduction of a return shall,
upon written request, be furnished to any
person to whom disclosure or inspection of such
return is authorized under this section. A
reasonable fee may be prescribed for furnishing
such reproduction or certified reproduction.
(B) Disclosure of return information.--Return
information disclosed to any person under the
provisions of this title may be provided in the
form of written documents, reproductions of
such documents, films or photoimpressions, or
electronically produced tapes, disks, or
records, or by any other mode or means which
the Secretary determines necessary or
appropriate. A reasonable fee may be prescribed
for furnishing such return information.
(C) Use of reproductions.--Any reproduction
of any return, document, or other matter made
in accordance with this paragraph shall have
the same legal status as the original, and any
such reproduction shall, if properly
authenticated, be admissible in evidence in any
judicial or administrative proceeding as if it
were the original, whether or not the original
is in existence.
(3) Records of inspection and disclosure.--
(A) System of recordkeeping.--Except as
otherwise provided by this paragraph, the
Secretary shall maintain a permanent system of
standardized records or accountings of all
requests for inspection or disclosure of
returns and return information (including the
reasons for and dates of such requests) and of
returns and return information inspected or
disclosed under this section and section
6104(c). Notwithstanding the provisions of
section 552a(c) of title 5, United States Code,
the Secretary shall not be required to maintain
a record or accounting of requests for
inspection or disclosure of returns and return
information, or of returns and return
information inspected or disclosed, under the
authority of subsection (c), (e), (f)(5),
(h)(1), (3)(A), or (4), (i)(4), or (8)(A)(ii),
(k)(1), (2), (6), (8), or (9), (l)(1), (4)(B),
(5), (7), (8), (9), (10), (11), (12),
(13)(D)(iv), (13)(D)(v), (13)(D)(vi) 2
(14), (15), (16), (17), or (18), (m), or (n).
The records or accountings required to be
maintained under this paragraph shall be
available for examination by the Joint
Committee on Taxation or the Chief of Staff of
such joint committee. Such record or accounting
shall also be available for examination by such
person or persons as may be, but only to the
extent, authorized to make such examination
under section 552a(c)(3) of title 5, United
States Code.
(B) Report by the Secretary.--The Secretary
shall, within 90 days after the close of each
calendar year, furnish to the Joint Committee
on Taxation a report with respect to, or
summary of, the records or accountings
described in subparagraph (A) in such form and
containing such information as such joint
committee or the Chief of Staff of such joint
committee may designate. Such report or summary
shall not, however, include a record or
accounting of any request by the President
under subsection (g) for, or the disclosure in
response to such request of, any return or
return information with respect to any
individual who, at the time of such request,
was an officer or employee of the executive
branch of the Federal Government. Such report
or summary, or any part thereof, may be
disclosed by such joint committee to such
persons and for such purposes as the joint
committee may, by record vote of a majority of
the members of the joint committee, determine.
(C) Public report on disclosures.--The
Secretary shall, within 90 days after the close
of each calendar year, furnish to the Joint
Committee on Taxation for disclosure to the
public a report with respect to the records or
accountings described in subparagraph (A)
which--
(i) provides with respect to each
Federal agency, each agency, body, or
commission described in subsection (d),
(i)(3)(B)(i) or (7)(A)(ii), or (l)(6),
and the Government Accountability
Office the number of--
(I) requests for disclosure
of returns and return
information,
(II) instances in which
returns and return information
were disclosed pursuant to such
requests or otherwise,
(III) taxpayers whose
returns, or return information
with respect to whom, were
disclosed pursuant to such
requests, and
(ii) describes the general purposes
for which such requests were made.
(4) Safeguards.--Any Federal agency described in
subsection (h)(2), (h)(5), (i)(1), (2), (3), (5), or
(7), (j)(1), (2), or (5), (k)(8), (10), (11), or (15),
(l)(1), (2), (3), (5), (10), (11), (13)(A), (13)(B),
(13)(C), (13)(D)(i), (14), (17), [or (22)] (22), or
(23), (o)(1)(A), or (o)(3), the Government
Accountability Office, the Congressional Budget Office,
or any agency, body, or commission described in
subsection (d), (i)(1)(C), (3)(B)(i), or (7)(A)(ii), or
(k)(10), (l)(6), (7), (8), (9), (12), (15), or (16),
any appropriate State officer (as defined in section
6104(c)), or any other person described in subsection
(k)(10) or (15), subsection (l)(10), (13)(A), (13)(B),
(13)(C), (13)(D)(i), (16), (18), (19), or (20), or any
entity described in subsection (l)(21), shall, as a
condition for receiving returns or return information--
(A) establish and maintain, to the
satisfaction of the Secretary, a permanent
system of standardized records with respect to
any request, the reason for such request, and
the date of such request made by or of it and
any disclosure of return or return information
made by or to it;
(B) establish and maintain, to the
satisfaction of the Secretary, a secure area or
place in which such returns or return
information shall be stored;
(C) restrict, to the satisfaction of the
Secretary, access to the returns or return
information only to persons whose duties or
responsibilities require access and to whom
disclosure may be made under the provisions of
this title;
(D) provide such other safeguards which the
Secretary determines (and which he prescribes
in regulations) to be necessary or appropriate
to protect the confidentiality of the returns
or return information;
(E) furnish a report to the Secretary, at
such time and containing such information as
the Secretary may prescribe, which describes
the procedures established and utilized by such
agency, body, or commission, the Government
Accountability Office, or the Congressional
Budget Office for ensuring the confidentiality
of returns and return information required by
this paragraph; and
(F) upon completion of use of such returns or
return information--
(i) in the case of an agency, body,
or commission described in subsection
(d), (i)(3)(B)(i), (k)(10), or (l)(6),
(7), (8), (9), or (16), any appropriate
State officer (as defined in section
6104(c)), or any other person described
in subsection (k)(10) or (15) or
subsection (l)(10), (13)(A), (13)(B),
(13)(C), (13)(D)(i), (16), (18), (19),
or (20) return to the Secretary such
returns or return information (along
with any copies made therefrom) or make
such returns or return information
undisclosable in any manner and furnish
a written report to the Secretary
describing such manner,
(ii) in the case of an agency
described in subsection (h)(2), (h)(5),
(i)(1), (2), (3), (5) or (7), (j)(1),
(2), or (5), (k)(8), (10), (11), or
(15), (l)(1), (2), (3), (5), (10),
(11), (12), (13)(A), (13)(B), (13)(C),
(13)(D)(i), (14), (15), (17), [or
(22),] (22), or (23), (o)(1)(A), or
(o)(3) or any entity described in
subsection (l)(21), the Government
Accountability Office, or the
Congressional Budget Office, either--
(I) return to the Secretary
such returns or return
information (along with any
copies made therefrom),
(II) otherwise make such
returns or return information
undisclosable, or
(III) to the extent not so
returned or made undisclosable,
ensure that the conditions of
subparagraphs (A), (B), (C),
(D), and (E) of this paragraph
continue to be met with respect
to such returns or return
information, and
(iii) in the case of the Department
of Health and Human Services for
purposes of subsection (m)(6), destroy
all such return information upon
completion of its use in providing the
notification for which the information
was obtained, so as to make such
information undisclosable;
except that the conditions of subparagraphs (A), (B),
(C), (D), and (E) shall cease to apply with respect to
any return or return information if, and to the extent
that, such return or return information is disclosed in
the course of any judicial or administrative proceeding
and made a part of the public record thereof. If the
Secretary determines that any such agency, body, or
commission, including an agency, an appropriate State
officer (as defined in section 6104(c)), or any other
person described in subsection (k)(10) or (15) or
subsection (l)(10), (13)(A), (13)(B), (13)(C),
(13)(D)(i), (16), (18), (19), or (20) or any entity
described in subsection (l)(21), or the Government
Accountability Office or the Congressional Budget
Office, has failed to, or does not, meet the
requirements of this paragraph, he may, after any
proceedings for review established under paragraph (7),
take such actions as are necessary to ensure such
requirements are met, including refusing to disclose
returns or return information to such agency, body, or
commission, including an agency, an appropriate State
officer (as defined in section 6104(c)), or any other
person described in subsection (k)(10) or (15) or
subsection (l)(10), (13)(A), (13)(B), (13)(C),
(13)(D)(i), (16), (18), (19), or (20) or any entity
described in subsection (l)(21), or the Government
Accountability Office or the Congressional Budget
Office, until he determines that such requirements have
been or will be met. In the case of any agency which
receives any mailing address under paragraph (2), (4),
(6), or (7) of subsection (m) and which discloses any
such mailing address to any agent or which receives any
information under paragraph (6)(A), (10), (12)(B), or
(16) of subsection (l) and which discloses any such
information to any agent, or any person including an
agent described in subsection (l)(10), (13)(A),
(13)(B), (13)(C), (13)(D)(i), or (16), this paragraph
shall apply to such agency and each such agent or other
person (except that, in the case of an agent, or any
person including an agent described in subsection
(l)(10), (13)(A), (13)(B), (13)(C), (13)(D)(i), or
(16), any report to the Secretary or other action with
respect to the Secretary shall be made or taken through
such agency). For purposes of applying this paragraph
in any case to which subsection (m)(6) applies, the
term ``return information'' includes related blood
donor records (as defined in section 1141(h)(2) of the
Social Security Act).
(5) Report on procedures and safeguards.--After the
close of each calendar year, the Secretary shall
furnish to each committee described in subsection
(f)(1) a report which describes the procedures and
safeguards established and utilized by such agencies,
bodies, or commissions, the Government Accountability
Office, and the Congressional Budget Office for
ensuring the confidentiality of returns and return
information as required by this subsection. Such report
shall also describe instances of deficiencies in, and
failure to establish or utilize, such procedures.
(6) Audit of procedures and safeguards.--
(A) Audit by Comptroller General.--The
Comptroller General may audit the procedures
and safeguards established by such agencies,
bodies, or commissions and the Congressional
Budget Office pursuant to this subsection to
determine whether such safeguards and
procedures meet the requirements of this
subsection and ensure the confidentiality of
returns and return information. The Comptroller
General shall notify the Secretary before any
such audit is conducted.
(B) Records of inspection and reports by the
Comptroller General.--The Comptroller General
shall--
(i) maintain a permanent system of
standardized records and accountings of
returns and return information
inspected by officers and employees of
the Government Accountability Office
under subsection (i)(8)(A)(ii) and
shall, within 90 days after the close
of each calendar year, furnish to the
Secretary a report with respect to, or
summary of, such records or accountings
in such form and containing such
information as the Secretary may
prescribe, and
(ii) furnish an annual report to each
committee described in subsection (f)
and to the Secretary setting forth his
findings with respect to any audit
conducted pursuant to subparagraph (A).
The Secretary may disclose to the Joint
Committee any report furnished to him under
clause (i).
(7) Administrative review.--The Secretary shall by
regulations prescribe procedures which provide for
administrative review of any determination under
paragraph (4) that any agency, body, or commission
described in subsection (d) has failed to meet the
requirements of such paragraph.
(8) State law requirements.--
(A) Safeguards.--Notwithstanding any other
provision of this section, no return or return
information shall be disclosed after December
31, 1978, to any officer or employee of any
State which requires a taxpayer to attach to,
or include in, any State tax return a copy of
any portion of his Federal return, or
information reflected on such Federal return,
unless such State adopts provisions of law
which protect the confidentiality of the copy
of the Federal return (or portion thereof)
attached to, or the Federal return information
reflected on, such State tax return.
(B) Disclosure of returns or return
information in State returns.--Nothing in
subparagraph (A) shall be construed to prohibit
the disclosure by an officer or employee of any
State of any copy of any portion of a Federal
return or any information on a Federal return
which is required to be attached or included in
a State return to another officer or employee
of such State (or political subdivision of such
State) if such disclosure is specifically
authorized by State law.
(q) Regulations.--The Secretary is authorized to prescribe
such other regulations as are necessary to carry out the
provisions of this section.
* * * * * * *
MINORITY VIEWS
INTRODUCTION
The Federal Black Lung Program and the Black Lung
Disability Trust Fund (Trust Fund) need major reforms, but
unfortunately H.R. 6102 misses the mark. This bill was drafted
behind closed doors, without input from Republicans, and
released less than 24 hours before the Workforce Protections
Subcommittee's hearing on the bill.\1\ H.R. 6102 creates more
bloated bureaucracy, raises costs, and increases the debt of
the Trust Fund.
---------------------------------------------------------------------------
\1\Strengthening the Safety Net for Injured Workers: Hearing Before
the Subcomm. on Workforce Protections of the H. Comm. on Educ. & Labor,
117th Cong. (Dec. 2, 2021).
---------------------------------------------------------------------------
The 1969 Black Lung Benefits Act established the Federal
Black Lung Program to provide cash assistance and medical
benefits to coal miners who have been disabled due to
pneumoconiosis, commonly known as black lung disease.\2\
Benefits are paid by the responsible coal mine operators, but
when these operators cannot be identified or cannot pay,
benefits are paid from the Trust Fund.
---------------------------------------------------------------------------
\2\Federal Coal Mine Health and Safety Act of 1969, Pub. L. No. 91-
173, tit. IV (1969) (later renamed the Federal Mine Safety and Health
Act of 1977, Pub. L. No. 95-164 (1977)).
---------------------------------------------------------------------------
Federal law requires that coal mine operators secure their
black lung benefit liability to limit the risk of transferring
benefit responsibility to the Trust Fund.\3\ Operators must
either purchase a commercial policy to insure against this
liability or self-insure their benefits if they meet criteria
established by the Department of Labor's (DOL or the
Department) Office of Workers' Compensation Programs (OWCP).
OWCP is responsible for authorization and oversight of the
self-insurance program as well as for monitoring whether non-
self-insured coal mine operators maintain continuous commercial
coverage. If responsible employers either fail to obtain
adequate insurance for their benefit liabilities or face
bankruptcy, the responsibility for these payments can transfer
to the Trust Fund and exacerbate the fund's existing financial
difficulties.
---------------------------------------------------------------------------
\3\30 U.S.C. Sec. 932(b).
---------------------------------------------------------------------------
H.R. 6102, the Black Lung Benefits Improvement Act, makes a
number of changes to the Federal Black Lung Program. The bill
creates a new federal program to pay for a claimant's
attorneys' fees and medical expenses before the claim has been
adjudicated. It significantly increases penalties for operators
who cannot secure payment of benefits from $1,000 per day to
$25,000 per day. It raises the amount of benefits paid to
claimants and further strains the Trust Fund. It also requires
the Secretary of Labor to assist in the development of
additional medical evidence for claimants whose claims are
opposed by another party or claimants whose compensation case
is heard by an administrative law judge.
H.R. 6102 worsens the Trust Fund's Insolvency
The Trust Fund has been plagued by financial difficulties
since it began over 40 years ago and has been in debt since it
was created.\4\ Its expenditures consistently exceed revenue,
causing it to borrow from the Department of the Treasury's
general fund nearly every year. In Fiscal Year 2021, it
borrowed $2.3 billion to cover its expenses. At the current
rate, its debt could exceed $15 billion by 2050.\5\ On
September 30, 2021, total liabilities of the Trust Fund
exceeded assets by over $6 billion.\6\ In FY 2023, estimates
project that excise tax receipts will cover 57 percent of
administrative costs and benefit payments.\7\ Many of the Trust
Fund's problems stem from DOL's decades-long failure to provide
proper oversight or enforcement, as well as from interest
accumulation on the Trust Fund's debt.
---------------------------------------------------------------------------
\4\https://www.gao.gov/assets/gao-20-21.pdf.
\5\https://www.gao.gov/assets/gao-22-105546.pdf.
\6\https://fiscal.treasury.gov/files/reports-statements/financial-
report/2021/fr-02-17-2022-(final).pdf.
\7\https://www.dol.gov/sites/dolgov/files/general/budget/2023/CBJ-
2023-V2-08.pdf.
---------------------------------------------------------------------------
The Trust Fund is funded primarily through a tax on coal.
From 1986 to 2018, the tax rate was $1.10 per ton of
underground-mined coal and $0.55 per ton of surface-mined coal,
up to 4.4 percent of the sales price. In 2019, the rate of the
coal tax decreased to the pre-1986 levels of $0.50 and $0.25,
respectively, up to 2 percent of the sales price.\8\ Congress
reauthorized the pre-2019 rate for one year in 2020, and
extended the reauthorization through 2021,\9\ but the tax
decreased again on December 31, 2021.
---------------------------------------------------------------------------
\8\https://www.crs.gov/Reports/
R46451?source=search&guid=50703a3efec544508c8b9661a6f3ad1
5&index=2.
\9\Consolidated Appropriations Act of 2020, Pub. L. No. 116-93
(2019); Consolidated Appropriations Act of 2021, Pub. L. No. 116-260
(2020).
---------------------------------------------------------------------------
At a time when the Trust Fund's financial position is dire,
Democrats are moving forward with a bill that further
exacerbates its insolvency. Section 106 of H.R. 6102
establishes a new program at DOL to pay a claimant's attorneys'
fees and medical expenses for still-contested claims, which
would cost the Trust Fund $8 million per year.\10\ Section 107
of the bill increases the amount of benefits paid out by the
already insolvent Trust Fund. Section 131 drastically increases
the civil penalties levied on operators unable to secure
payments of benefits, increasing their likelihood of filing for
bankruptcy and transferring their debt to the Trust Fund.
---------------------------------------------------------------------------
\10\Information provided to Committee on Education and Labor
Republican staff by DOL.
---------------------------------------------------------------------------
H.R. 6102 forces the Trust Fund and taxpayers to pay legal fees and
benefits on contested claims
Section 106 of H.R. 6102 establishes a new program at DOL
to pay a claimant's attorneys' fees and medical expenses for
still-contested claims not to exceed a total of $4,500 in
attorneys' fees nor more than $3,000 in medical expenses for
any single contested claim. If the claim is ultimately
successful, the operator reimburses the program. If the claim
is unsuccessful, then the Trust Fund pays the expenses. The
Department estimates this section would cost the Trust Fund $8
million per year.\11\ In FY 2022, the Department was
appropriated $35 million to pay for legal services and
adjudications in the Trust Fund.\12\ Section 106 would increase
the costs of the Trust Fund's departmental management account
by 23 percent. It is inappropriate to force taxpayers to pay
attorney's fees or medical expenses on claims that are
ultimately unsuccessful or that lack merit.
---------------------------------------------------------------------------
\11\Id.
\12\https://www.dol.gov/sites/dolgov/files/general/budget/2023/
FY2023BIB.pdf.
---------------------------------------------------------------------------
H.R. 6102 weakens the mining industry's ability to self-insure
Federal law requires that coal mine operators secure their
black lung benefit liability to limit the risk of transferring
benefit responsibility to the Trust Fund.\13\ Operators must
purchase a commercial policy to insure against this liability
or must self-insure if they meet certain criteria established
by OWCP. OWCP is responsible for monitoring whether non-self-
insured coal mine operators maintain continuous commercial
coverage. If responsible employers do not obtain adequate
insurance for their benefit liabilities or face bankruptcy, the
responsibility for these payments can transfer to the Trust
Fund, exacerbating the fund's existing financial difficulties.
The Government Accountability Office (GAO) has made several
recommendations to improve DOL's oversight of black lung self-
insurance.
---------------------------------------------------------------------------
\13\30 U.S.C. Sec. 932(b).
---------------------------------------------------------------------------
Instead of making real reforms to the Federal Black Lung
Program, section 131 of H.R. 6102 adds a new provision
punishing the mining industry by raising fines on operators who
are unable to secure the payment of benefits from $1,000 per
day to $25,000 per day. These fines pile on the financial
pressure operators face brought on by distressed coal markets
and increased environmental regulatory burdens. If an operator
is already struggling to pay benefits, increasing fines will
only force them closer to bankruptcy. Additionally, this
provision will make it even more difficult for struggling
operators to self-insure and stay in business by increasing
liability risks and costs. Congress should ensure that coal
operators are allowed to be successful so they have the
collateral and funds available to pay claims, not attempt to
bankrupt them. Increased fines will discourage employers from
self-insuring in the future. These penalties are
disproportionate and only serve to further the Democrats' war
on coal.
At the Committee markup of H.R. 6102, Rep. Mondaire Jones
(D-NY) offered and withdrew an amendment which would have
prohibited coal operators from self-insuring for black lung
benefit liabilities. This amendment shows the Democrats'
ultimate goal is to expand federal programs and eliminate self-
insurance.
H.R. 6102 continues the Democrats' war on coal
During the Obama administration, Democrats repeatedly
asserted that their regulations on coal-fired power plants
would not jeopardize the industry.\14\ We now know that was
false. Democrats' war on coal has led to the bankruptcy of
dozens of operators, jeopardizing the economies of rust belt
states and leading to increased Trust Fund liabilities.
Democrat environmental policies jeopardize the industry's
future as well as the security and reliability of our nation's
electrical grid.\15\
---------------------------------------------------------------------------
\14\https://freebeacon.com/issues/sierra-club-pressed-epa-to-
create-impossible-coal-standards/.
\15\https://thehill.com/opinion/energy-environment/503006-we-still-
need-coal-to-ensure-power-grid-reliability.
---------------------------------------------------------------------------
Section 131, which would significantly increase penalties
for operators who are unable to secure payment of benefits from
$1,000 a day to $25,000 a day, seeks to penalize coal operators
out of business or out of self-insurance. This is yet another
not-so-thinly veiled shakedown of coal operators that would
unfairly punish job creators still reeling from the impact of
the Democrats' war on coal. To be clear, Committee Republicans
do not condone coal operators who violate important workers'
compensation laws, and we have always supported the authority
of OWCP to hold bad actors accountable through enforcement.
What Democrats are proposing, however, is a punitive policy
change directed at coal mine operators in general rather than
targeted at violators.
H.R. 6102 falsely promises reforms
Many provisions in H.R. 6102 are unnecessary because DOL
already has existing authority to implement the policy goals
stated in the bill and has already done so. Section 103
requires the Secretary of Labor to develop additional medical
evidence for claimants upon request. This section merely
codifies two DOL bulletins.\16\
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\16\https://www.dol.gov/sites/dolgov/files/owcp/dcmwc/blba/indexes/
BL20-01OCR.pdf.
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Section 105 allows claimants to readjudicate cases
involving certain chest radiographs interpreted by physicians
whom the Secretary has directed not be credited in this regard.
However, this provision is unnecessary because there is only
one physician who has been so designated, and the Department
issued a bulletin and subsequent Q&A allowing for claimants
whose chest radiographs were interpreted by this physician to
reapply for benefits.\17\ Both sections 103 and 105 have
already been implemented by DOL; statutory changes at this time
could hinder the Department's flexibility to address the needs
of miners it currently serves by being overly prescriptive and
misdirecting DOL to implement its program in a way not in line
with best practices.
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\17\https://www.dol.gov/sites/dolgov/files/owcp/dcmwc/blba/indexes/
BL14.09OCR.pdf;
https://www.dol.gov/agencies/owcp/negativechestxrays.
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H.R. 6102 ignores the Trump administration's reforms and GAO
recommendations
In February 2020, GAO released a study which found that DOL
oversight of the Trust Fund and coal mine operator insurance
was lacking for decades and resulted in severe underfunding of
coal company black lung benefit liabilities.\18\ The study also
examined coal mine operator bankruptcies filed from 2014
through 2016 and found these bankruptcies expanded the Trust
Fund benefit liability by $865 million, partially due to DOL's
limited oversight of coal mine operator insurance. DOL's
previous estimate of the benefit liability--between $313
million and $325 million--was much lower, and DOL attributed
this discrepancy to recent increases in black lung benefit
award rates, higher medical treatment costs, and an
underestimate of one company's future benefit claims.
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\18\https://www.gao.gov/assets/gao-20-21.pdf.
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The GAO study additionally found several longstanding
shortcomings in DOL oversight of the Trust Fund and coal mine
operator insurance. First, DOL did not properly estimate future
black lung benefit claims. Second, DOL did not regularly review
self-insurance authorizations or change necessary collateral
amounts based on companies' financial positions or updated
benefit liability estimates. Third, DOL did not take adequate
enforcement actions to protect the Trust Fund from assuming
additional benefit liabilities. Fourth, DOL did not monitor
whether coal mine operators with commercial insurance
maintained continuous coverage. The GAO report made three
recommendations to improve DOL oversight: (1) develop
procedures for self-insurance renewals and non-renewals; (2)
identify timelines for self-insured operator appeals; and (3)
implement procedures to monitor compliance with commercial
insurance requirements.\19\
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\19\https://www.gao.gov/assets/gao-20-21.pdf.
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In February 2020, then-OWCP Director Julia Hearthway
testified before the Subcommittee on Workforce Protections on
actions that OWCP was already taking to implement GAO
recommendations regarding self-insurance reauthorizations and
lapsed commercial insurance coverage.\20\ In December 2020, DOL
published a bulletin outlining the new self-insurance process
guidelines to implement the GAO recommendations.\21\ GAO stated
as follows:
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\20\Asleep at the Switch: How the Department of Labor Failed to
Oversee the Black Lung Disability Trust Fund: Hearing Before the
Subcomm. on Workforce Protections of the H. Comm. On Educ. & Lab.,
116th Cong. 31-33 (2020) (statement of Julia Hearthway, Dir., Off. of
Workers' Compensation Programs, DOL).
\21\http://web.archive.org/web/20210327211056/https://www.dol.gov/
sites/dolgov/files/OWCP/dcm
wc/blba/indexes/BL21-01OCR.pdf.
This bulletin was the culmination of DOL's
approximately 5-year effort to reform the self-
insurance program. The guidelines included actions that
would have addressed our recommendations. For instance,
DOL specified that it would authorize operators to
self-insure for a period of one year (after which an
operator would be required to submit a self-insurance
renewal application), and it set a goal to resolve coal
operator appeals within 90 days after receiving
supporting documents or meeting with the operator to
discuss their concerns. Additionally, DOL stated that
it would set collateral requirements based on an
operator's actuarial estimated benefit liabilities and
risk of insolvency and reassess the collateral
requirements quarterly based on review of an operator's
financial statements.\22\
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\22\https://www.gao.gov/assets/gao-22-105546.pdf.
In February 2021, the Biden administration withdrew the
bulletin, subsequently freezing implementation of GAO's
recommendations.\23\
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\23\Black Lung Benefits Act Self-Insurance: Withdrawal of Guidance,
86 Fed. Reg. 8806 (Feb. 9, 2021).
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In December 2021, GAO testified before the Workforce
Protections Subcommittee that OWCP has not addressed any of
GAO's recommendations that would increase the solvency of the
Trust Fund and stated that ``DOL officials could not describe
any anticipated changes to coal operator self-insurance going
forward.''\24\ The Biden administration OWCP Director confirmed
in his testimony that any reforms to the Federal Black Lung
Program will be months in the future, even though the Trump
administration was in the process of addressing GAO's
recommendations.\25\ DOL should not wait months to provide
miners and operators with peace of mind.
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\24\Statement of Thomas Costa, Dir., Educ., Workforce, & Income
Security, GAO, supra note 1.
\25\Statement of Christopher J. Godfrey, Dir., Off. of Workers'
Compensation Programs, DOL, supra note 1, at 9.
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Instead of addressing these longstanding oversight issues,
H.R. 6102 weakens the solvency of the Trust Fund and pushes
operators closer to bankruptcy. One ``reform'' in the bill is
unnecessary because it merely codifies action DOL is already
taking. Section 131 in the bill directs DOL to publish an
interim final rule on requirements for an operator to qualify
as a self-insurer, but DOL is already in the process of
promulgating such a rule.\26\
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\26\https://www.reginfo.gov/public/do/
eAgendaViewRule?pubId=202110&RIN=1240-AA16.
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REPUBLICAN AMENDMENTS
During consideration of H.R. 6102, Committee Republicans
offered amendments to improve the bill, which were rejected by
Committee Democrats. Rep. Fred Keller (R-PA) offered an
amendment replacing section 106 in the bill with language
allowing the settlement of claims whenever both parties to any
claim for compensation agree to terms and an administrative law
judge approves the settlement. Section 106 establishes a new
program at DOL to pay a claimant's attorneys' fees and medical
expenses for still-contested claims. Taxpayers should not pay
attorney's fees or benefits on claims that are unsuccessful or
lack merit. Black lung cases often take a long time to go
through the legal process because current law prohibits the
settlement of claims, even when both parties agree that
settlement is the best option. This amendment incorporates in
the Black Lung Benefits Act a provision in current law from the
Longshore and Harbor Workers' Compensation Act allowing claims
to settle upon approval of an administrative law judge.\27\
Unfortunately, Committee Democrats chose not to improve the law
and allow miners to settle their claims, rejecting the
amendment in a party-line vote.
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\27\See Longshore and Harbor Workers' Compensation Act Sec. 8(i),
33 U.S.C. Sec. 908(i).
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Republican Leader Virginia Foxx (R-NC) offered an amendment
to prohibit OWCP from monitoring state workers' compensation
programs. State workers' compensation programs were established
more than 100 years ago under state constitutions and
legislation completely independent from federal programs. These
programs are continually monitored by an array of regulatory
agencies at the state level and reviewed by many research and
ratings bureaus. DOL does not need to trample on states' rights
and create additional levels of federal bureaucracy. The
authority does not exist in current law, nor should it.
Committee Democrats chose not to protect states' rights and
rejected this amendment along party lines.
CONCLUSION
A decades-long, recurring deficit proves that the Federal
Black Lung Program needs major reforms. Instead of fixing the
program, H.R. 6102 creates a new taxpayer-funded program to pay
claimants legal fees and benefits before claims are
adjudicated. The bill also increases the amount of benefits
paid out by the insolvent Trust Fund, and it increases
penalties on operators while failing to address the most
pressing problems in the program as identified by GAO. Congress
should not make legislative changes that would put further
stress on the Trust Fund. For these reasons, Congress should
reject H.R. 6102 so that Democrats and Republicans can work
together to reform the Federal Black Lung Program and ensure
that miners receive the benefits and medical care they deserve.
Virginia Foxx,
Ranking Member.
Joe Wilson.
Glenn ``GT'' Thompson.
Tim Walberg.
Glenn Grothman.
Rick W. Allen.
Jim Banks.
James Comer.
Russ Fulcher.
Fred Keller.
Mariannette Miller-Meeks, M.D.
Burgess Owens.
Bob Good.
Lisa C. McClain.
Diana Harshbarger.
Mary E. Miller.
Scott Fitzgerald.
Chris Jacobs.
Joe Sempolinski.
[all]