[Federal Register Volume 66, Number 102 (Friday, May 25, 2001)]
[Rules and Regulations]
[Pages 28948-29003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13113]



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Part II





Department of Labor





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Office of Workers' Compensation Programs



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20 CFR Parts 1 and 30



Performance of Functions Under This Chapter; Claims for Compensation 
Under the Energy Employees Occupational Illness Compensation Program 
Act; Final Rule

  Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules 
and Regulations  

[[Page 28948]]


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1 and 30

RIN 1215-AB32


Performance of Functions Under This Chapter; Claims for 
Compensation Under the Energy Employees Occupational Illness 
Compensation Program Act

AGENCY: Office of Workers' Compensation Programs, Employment Standards 
Administration, Labor.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document contains the interim final regulations governing 
the administration of the Energy Employees Occupational Illness 
Compensation Program Act (EEOICPA or Act), that provides lump-sum 
payments and medical benefits to covered employees and, where 
applicable, survivors of such employees, of the Department of Energy 
(DOE), its predecessor agencies and certain of its vendors, contractors 
and subcontractors. The Act also provides for the payment of smaller 
lump-sum payments and medical benefits to individuals already found 
eligible for benefits under section 5 of the Radiation Exposure 
Compensation Act and, where applicable, their survivors. The Department 
of Labor's (DOL) Office of Workers' Compensation Programs (OWCP) 
administers the adjudication of claims and payment of benefits under 
the EEOICPA, with the Department of Health and Human Services (HHS) 
calculating the amounts of radiation received by employees alleged to 
have sustained cancer as a result of such exposure and establishing 
guidelines to be followed in determining whether such cancers are at 
least as likely as not related to employment. The Department of Energy 
(DOE) and the Department of Justice (DOJ) are responsible for notifying 
potential claimants and submitting evidence necessary for DOL's 
adjudication of claims under the EEOICPA.

DATES: Effective Date: This interim final rule is effective July 24, 
2001.
    Compliance Dates: Affected parties do not have to comply with the 
information collection requirements in Secs. 30.100, 30.101, 30.102, 
30.111, 30.112, 30.206, 30.207, 30.213, 30.214, 30.216, 30.217, 30.401, 
30.415, 30.416, 30.417, 30.420, 30.421, 30.505, 30.617, 30.700, 30.701 
and 30.702 until the Department publishes in the Federal Register the 
control numbers assigned by the Office of Management and Budget (OMB) 
to these information collection requirements. Publication of the 
control numbers notifies the public that OMB has approved these 
information collection requirements under the Paperwork Reduction Act 
of 1995.
    Comments: The Department invites written comments on the interim 
final rule from interested parties. Comments on the interim final rule 
must be received by August 23, 2001. Written comments on collections of 
information subject to the Paperwork Reduction Act must be received by 
July 24, 2001.

ADDRESSES: Submit written comments on the interim final rule to Shelby 
S. Hallmark, Acting Director, Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, Room S-
3524, 200 Constitution Avenue, N.W., Washington, DC 20210.
    Written comments on the collection of information requirements 
should be sent to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, Attention: Desk Officer for Employment 
Standards Administration, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Shelby S. Hallmark, Acting Director, 
Office of Workers' Compensation Programs, Employment Standards 
Administration, U.S. Department of Labor, Room S-3524, 200 Constitution 
Avenue, N.W., Washington, D.C. 20210, Telephone: 202-693-0036 (this is 
not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. What Is the Energy Employees Occupational Illness Compensation 
Program?

    The Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA), Public Law 106-398, 114 Stat. 1654, 1654A-1231 (October 30, 
2000), was enacted as Title XXXVI of the Floyd D. Spence National 
Defense Authorization Act for Fiscal Year 2001. The EEOICPA established 
a compensation program to provide a lump sum payment of $150,000 and 
medical benefits as compensation to covered employees suffering from 
designated illnesses incurred as a result of their exposure to 
radiation, beryllium, or silica while in the performance of duty for 
DOE and certain of its vendors, contractors and subcontractors. This 
legislation also provided for payment of compensation to certain 
survivors of these covered employees, as well as for payment of a 
smaller lump sum ($50,000) to individuals (who would also receive 
medical benefits), or their survivor(s), who were determined to be 
eligible for compensation under section 5 of the Radiation Exposure 
Compensation Act (42 U.S.C. 2210 note).
    The EEOICPA further instructed the President to designate one or 
more Federal agencies or officials to carry out the compensation 
program. Pursuant to this statutory provision, the President issued 
Executive Order 13179 (``Providing Compensation to America's Nuclear 
Weapons Workers'') of December 7, 2000 (65 FR 77487) which assigned 
primary responsibility for administering the compensation program to 
DOL. This executive order also directed HHS to, among other things, 
develop guidelines to assess the likelihood that an employee with 
cancer developed that cancer in the performance of duty at a DOE 
facility or atomic weapons facility, to establish methods for 
calculating radiation dose estimates for individuals applying for 
benefits under this program for whom there are inadequate records of 
radiation exposure, and perform such calculations. The President's 
order instructed DOE to provide DOL and HHS all relevant information to 
which it may have access, and to assist in the development of claims 
under the EEOICPA and state workers' compensation programs. Finally, 
the executive order directed DOJ to identify and notify RECA 
beneficiaries of their possible entitlement to benefits under the 
EEOICPA and to assist DOL in the adjudication of those claims.

II. Issuance of Interim Final Rule

    Section 3611(a) of the EEOICPA both establishes the Energy 
Employees Occupational Illness Compensation Program and provides that 
``[t]he President shall carry out the compensation program through one 
or more Federal agencies or officials, as designated by the 
President.'' Pursuant to this statutory provision, the President issued 
Executive Order 13179 section 2(a)(ii) of which directed the Secretary 
of Labor to ``promulgate regulations for the administration of the 
Program, except for functions assigned to other agencies pursuant to 
the Act or this order;'' no later than May 31, 2001. The Act further 
stipulates that its provisions for both lump-sum payments and medical 
benefits shall take effect ``on July 31, 2001, unless Congress 
otherwise provides in an Act enacted before that date.'' The Department 
believes that Congress's explicit mandate in the Act that the 
provisions for both lump-sum payments and medical benefits take effect 
on July 31, 2001 contemplates displacement of Administrative

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Procedure Act (APA) notice and comment procedures and requires the 
publication of an Interim Final Rule as an initial matter.
    Therefore, the Department believes that the ``good cause'' 
exception to APA notice and comment rulemaking applies to this rule. 
Under that exception, no pre-adoption procedures are required ``when 
the agency for good cause finds (and incorporates the finding and a 
brief statement of reasons therefor in the rules issued) that notice 
and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C. 553(b)(B). The EEOICPA was 
enacted to provide efficient, uniform and adequate compensation for 
radiation, beryllium, and silica related health conditions to the 
civilian men and women who, over the past 50 years, performed duties 
uniquely associated with the nuclear weapons production and testing 
programs of DOE and its predecessor agencies. The enactment of EEOICPA 
was, in part, the result of the failure of existing state workers' 
compensation programs to provide uniform and adequate compensation for 
these types of occupational illnesses. DOL cannot begin to accept and 
process claims under the EEOICPA until these regulations are 
promulgated. The steps necessary for the usual notice and comment under 
the APA could not be completed in time for the program to become 
effective by July 31, 2001: approval of the notice of proposed 
rulemaking by the Secretary and OMB; publication in the Federal 
Register; receipt of, consideration of, and response to the comments 
submitted by interested parties; modification of the proposed rules, if 
appropriate; final approval by the Secretary; clearance by OMB; and 
publication in the Federal Register. Moreover, completion of these 
steps will further delay the implementation of the program. 
Accordingly, the Department believes that under 5 U.S.C. 553(b)(B), 
good cause exists for waiver of Notice of Proposed Rulemaking since 
issuance of proposed rules would be impracticable and contrary to the 
public interest.
    While notice of proposed rulemaking is being waived, the Department 
is interested in comments and advice regarding changes that should be 
made to these interim rules. We will fully consider any comments on 
these rules that we receive on or before August 23, 2001, and will 
publish the Final Rule with any necessary changes.

III. What Are the Paperwork Requirements (Subject to the Paperwork 
Reduction Act) Imposed Under EEOICPA and the Department's 
Regulations, and How Are Comments Submitted?

    The new collections of information contained in this rulemaking 
have been submitted for review to OMB in accordance with the Paperwork 
Reduction Act of 1995. No person is required to respond to a collection 
of information request unless the collection of information displays a 
valid OMB control number. The new information collection requirements 
are in Secs. 30.100, 30.101, 30.102, 30.111, 30.112, 30.206, 30.207, 
30.213, 30.214, 30.216, 30.217, 30.415, 30.416, 30.417, 30.505, 30.617 
and 30.702, and they relate to information required to be submitted by 
claimants, medical providers, and witnesses as part of the claims 
adjudication process, as well as to information required to be 
submitted by claimants in connection with the processing of bills. To 
implement all but one of these new collections, the Department is 
proposing to create eight new forms (see sections A through E and 
sections G through I below). One new collection will be implemented 
without any specific form (see section F below).
    In addition, this rulemaking contains currently approved 
collections of information in Secs. 30.401, 30.420, 30.421, 30.700, 
30.701 and 30.702, which relate to information required to be submitted 
by claimants and medical providers in connection with the processing of 
bills (see OMB-1215-0055, OMB-1215-0176, and OMB-1215-0194). These 
collections (Forms OWCP-1500, UB-92 and 79-1A) will be revised to 
include EEOICPA respondents.

A. Employee's Claim: Form EE-1 (Secs. 30.100 and 30.102)

    Summary: The claims adjudication process for employees begins with 
a requirement that they file a written claim for benefits with the 
Department on or after July 31, 2001. Employees do not need to use the 
``Claim For Benefits Under Energy Employees Occupational Illness 
Compensation Program Act'' (Form EE-1) to initiate this process since 
any written communication that requests benefits under the EEOICPA will 
be considered a claim. They will, however, be required to submit a Form 
EE-1 to insure that OWCP has the basic factual information necessary to 
begin adjudicating the claim. In Form EE-1, the employee is requested 
to provide information with respect to his or her identity, contact 
information, the type of illness being claimed (with date of 
diagnosis), the location or type of employment, whether he or she is a 
member of the Special Exposure Cohort, and whether he or she received 
an award letter under the Radiation Exposure Compensation Act (42 
U.S.C. 2210 note) or filed a lawsuit regarding the claimed illness. 
OWCP may also require employees to provide factual information in 
support of any responses made on Form EE-1. All employees will be 
required to swear or affirm that the information provided on the Form 
EE-1 is true.
    Need: Pursuant to the EEOICPA, a claim for benefits is necessary to 
both initiate the claims adjudication process and to establish a 
commencement date for any possible entitlement to medical benefits.
    Respondents and proposed frequency of response: It is estimated 
that 43,140 employees annually will file one Form EE-1.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-1 is estimated to take an average of 
15 minutes per employee for a total annual burden of 10,785 hours.

B. Survivor's Claim: Form EE-2 (Secs. 30.101 and 30.102)

    Summary: The claims adjudication process for survivors begins with 
a requirement that they file a written claim for survivor benefits with 
the Department on or after July 31, 2001. Survivors do not need to use 
the ``Claim For Survivors Benefits Under Energy Employees Occupational 
Illness Compensation Program Act'' (Form EE-2) to initiate this process 
since any written communication that requests benefits under the 
EEOICPA will be considered a claim. They will, however, be required to 
submit Form EE-2 to insure that OWCP has the basic factual information 
necessary to begin adjudicating the claim. In Form EE-2, the survivor 
is asked to provide information with respect to both his or her 
identity and the identity of the deceased employee, contact 
information, the type of illness being claimed (with date of 
diagnosis), the location or type of employment, whether the deceased 
employee was a member of the Special Exposure Cohort, and whether he or 
she (or the deceased employee) received an award letter under the 
Radiation Exposure Compensation Act (42 U.S.C. 2210 note) or filed a 
lawsuit regarding the claimed illness. OWCP may also require survivors 
to provide factual information

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in support of any responses made on Form EE-2. All survivors will be 
required to swear or affirm that the information provided on the Form 
EE-2 is true.
    Need: Pursuant to the EEOICPA, a claim for survivor's benefits is 
necessary to initiate the claims adjudication process.
    Respondents and proposed frequency of response: It is estimated 
that 28,760 survivors annually will file one Form EE-2.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-2 is estimated to take an average of 
15 minutes per survivor for a total annual burden of 7,190 hours.

C. Employment History: Form EE-3 (Secs. 30.102, 30.111, 30.112, 30.206, 
30.213 and 30.216)

    Summary: Employees and/or survivors claiming benefits under the 
EEOICPA must establish, among other things, an employment history that 
includes at least one period of covered employment. Form EE-3 has been 
devised to elicit the basic factual information necessary to enable 
OWCP to make this particular finding of fact. In Form EE-3, the 
respondent (the employee or survivor) is asked to provide information 
with respect to his or her identity and contact information, the 
employee's identity, and the employee's complete employment history 
that includes dates of employment, the name and location of employers, 
position titles and descriptions of work performed, and information 
regarding any dosimetry badges worn. All respondents will be required 
to swear or affirm that the information provided on the Form EE-3 is 
true. Further, the employment history provided on Form EE-3 will be 
provided to DOE for verification.
    Need: Documentation of a history of covered employment is one of 
the elements that must be met to establish entitlement to benefits 
under the EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 68,584 employees and/or survivors annually will file one Form EE-
3.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-3 is estimated to take an average of 1 
hour per response for a total annual burden of 68,584 hours.

D. Employment History Affidavit: Form EE-4 (Secs. 30.102, 30.111, 
30.112, 30.206, 30.213 and 30.216)

    Summary: As noted in section C above, employees and/or survivors 
claiming benefits under the EEOICPA must establish, among other things, 
an employment history that includes at least one period of covered 
employment. In situations where the use of Form EE-3 may not be 
practicable (e.g., due to a lack of available information), Form EE-4 
may be used as an alternate method to provide OWCP with a basic 
employment history by affidavit. In Form EE-4, the respondent (someone 
other than the employee or survivor) is asked to provide information as 
to his or her identity and relationship to the employee, the employee's 
identity, and the employee's employment history that includes dates of 
employment, name and location of employers, descriptions of work 
performed, and an explanation of the basis for the employment history 
provided. All respondents will be required to swear or affirm that the 
factual information provided on the Form EE-4 is true. Further, the 
employment history provided on Form EE-4 will be provided to DOE for 
verification.
    Need: Documentation of a history of covered employment is one of 
the elements that must be met to establish entitlement to benefits 
under the EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 17,146 respondents annually will file one Form EE-4.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-4 is estimated to take an average of 
30 minutes per response for a total annual burden of 8,573 hours.

E. Medical Requirements: Form EE-7 (Secs. 30.102, 30.207, 30.214, 
30.217, 30.415, 30.416 and 30.417)

    Summary: Employees and/or survivors claiming benefits under the 
EEOICPA (except for those who have received an award under section 5 of 
the Radiation Exposure Compensation Act (42 U.S.C. 2210 note)) must 
also establish, among other things, that the employee sustained a 
compensable occupational illness. Form EE-7 has been devised to elicit 
the type of medical evidence (prepared by medical providers) needed to 
enable OWCP to make this particular finding of fact. Claimants may also 
be required to submit additional medical evidence (prepared by medical 
providers) as necessary. Form EE-7 describes, in checklist format, both 
the general and specific requirements for medical evidence submitted in 
support of a claim for each of the occupational illnesses covered by 
the EEOICPA.
    Need: Documentation of a covered occupational illness is one of the 
elements that must be met to establish entitlement to benefits under 
the EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 68,584 respondents annually will file one response to Form EE-7.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 15 minutes per response for a total annual burden of 
17,146 hours.

F. Supplemental Medical Evidence (Sec. 30.214)

    Summary: Employees and/or survivors claiming that an injury, 
illness or disability was sustained as a consequence of a covered 
cancer must submit a narrative medical report from a medical provider 
which shows a causal relationship between the claimed injury, illness 
or disability and the covered cancer. A standardized form or format 
will not be used for the submission of this information, which will be 
collected on an as-needed basis.
    Need: Documentation of a consequential injury is one of the 
elements that must be met to establish entitlement to benefits for such 
a condition under the EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 4,500 respondents annually will submit this collection of 
information once.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each collection of this information is estimated to 
take an average of 15 minutes per response for a total annual burden of 
1,125 hours.

G. Pre-payment Affidavit: Form EE/EN-15 (Secs. 30.505 and 30.617)

    Summary: Once the claims adjudication process has been completed 
and a final decision finding coverage under the EEOICPA has been made, 
the claimant must still provide information to determine if he or she 
is entitled to receive a lump-sum payment, and if so, the amount of 
such lump-sum payment. In Form EE/EN-15, the claimant is requested to 
provide

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information about any tort suits they may have filed against a 
beryllium vendor or atomic weapons employer, and whether they have been 
convicted on fraud charges in connection with the EEOICPA or another 
federal or state workers' compensation law. Form EE/EN-15 also requests 
information on third party settlements, other eligible survivors and 
corrections. All respondents will be required to certify that the 
information provided on Form EE/EN-15 is true.
    Need: Documentation of entitlement to a lump-sum payment and the 
level of any such payment is required under the EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 10,926 employees and/or survivors annually will file one Form EE/
EN-15.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE/EN-15 is estimated to take an average 
of 40 minutes per response for a total annual burden of 7,284 hours.

H. Acceptance of Payment: Form EE/EN-20 (Secs. 30.505 and 30.617)

    Summary: After Form EE/EN-15 is returned (and a determination that 
the claimant is entitled to a lump-sum payment is made and the amount 
of such entitlement has been calculated), the claimant will be informed 
of the award payable under the EEOICPA and that his or her acceptance 
of such payment will be in full satisfaction of all claims arising out 
of an occupational illness covered by the EEOICPA. The ``Acceptance of 
Payment'' (Form EE/EN-20) has been devised for this purpose, and 
requests that the claimant indicate whether he or she accepts or 
rejects the offered payment within 60 days.
    Need: Documentation of a claimant's acceptance of a lump-sum 
payment is necessary to establish the full satisfaction of all claims 
arising out of an occupational illness covered by the EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 10,926 employees and/or survivors annually will file one Form EE/
EN-20.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE/EN-20 is estimated to take an average 
of 5 minutes per response for a total annual burden of 911 hours.

I. Medical Reimbursement: Form EE-915 (Sec. 30.702)

    Summary: Once a claim has been accepted, the Department will pay 
medical benefits retroactive to the date the claim was filed. The 
``Claim For Medical Reimbursement Under Energy Employees Occupational 
Illness Compensation Program Act'' (Form EE-915) has been devised to 
enable claimants to seek reimbursement for out-of-pocket expenses 
pertaining to the medical treatment, prescription medication, and 
medical supplies obtained due to an accepted occupational illness or 
consequential injury.
    Need: Documentation of a claimant's out-of-pocket expenses is 
necessary to establish the amount that is payable as medical benefits 
for an occupational illness or consequential injury covered by the 
EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 5,095 respondents annually will file four Forms EE-915.
    Estimated total annual burden: The time required to review 
instructions, search existing data sources, gather the data needed, and 
complete and review each Form EE-915 is estimated to take an average of 
15 minutes per response for a total annual burden of 5,096 hours.
    Total public burden: The above information collections have a total 
public burden hour estimate of 126,693. Using the current National 
minimum wage of $5.15 per hour, the total annual public cost estimate 
for all new information collections is estimated to be $652,469.00. 
There are no recordkeeping or collection costs associated with the 
information collected on the EE-1, EE-2, EE-3, EE-4, EE/EN-15, EE/EN-20 
or EE-915. Because the medical information requested by the other two 
information collections is kept as a usual and customary business 
practice, there is no additional recordkeeping or collection cost 
associated with those collections. The only operation and maintenance 
cost will be for postage and mailing. An estimated 50% of the EE-1 and 
EE-2 forms will involve postage and mailing costs; the remainder will 
be received directly by either DOL or DOE personnel. The EE-3 form 
always accompanies the EE-1 or EE-2, therefore no additional postage or 
mailing is required. An estimated annual total of 167,612 mailed 
responses at $0.34 (postage) + $0.03 (envelope) per response would be 
$62,016.44.
    Request for comments: The public is invited to provide comments on 
the above-noted new information collection requirements so that the 
Department may:
    (1) Evaluate whether the proposed collections of information are 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimates of the burdens 
of the collections of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collections of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses.
    Send comments regarding this burden estimate, or any other aspect 
of this new collection of information, including suggestions for 
reducing this burden, to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Attention: Desk Officer for 
Employment Standards Administration, Washington, DC 20503 no later than 
July 24, 2001.

IV. What Matters Do the Regulations Address?

    Congress, in enacting the EEOICPA, created a new Energy Employees 
Occupational Illness Compensation Program to ensure an efficient, 
uniform, and adequate compensation system for certain employees of DOE, 
its vendors, contractors, and subcontractors, who contracted beryllium, 
silica, and radiation related health conditions as a result of their 
employment in the development of nuclear weapons. These regulations 
describe the process that DOL will use so that these employees, and, 
when applicable, their survivors, will receive the benefits provided by 
the EEOICPA in the efficient and uniform manner intended by Congress. 
The following discussion describes the regulations that will appear as 
20 CFR parts 1 and 30.

20 CFR Part 1

    This part is substantially the same as current part 1 (Secs. 1.1 
through 1.6), with the exception of the updated list of assigned 
functions contained in Sec. 1.2, and is reprinted in full for the ease 
of the reader. This updated list of functions reflects that the 
Assistant Secretary for Employment Standards

[[Page 28952]]

has assigned the Department's responsibilities under the EEOICPA and 
E.O. 13179 to the Deputy Assistant Secretary for Workers' Compensation 
Programs.

20 CFR Part 30

Subpart A--General Provisions

    This subpart briefly describes the types of benefits available 
under the EEOICPA and provides a summary of how the Department's 
regulations under the Act are organized. It also describes the effect 
of other general criminal and civil provisions on the EEOICPA claims 
process.

Introduction

    Sections 30.1 and 30.2 briefly describe how the tasks involved in 
administering the EEOICPA have been assigned, both within the 
Department and among the Secretaries of Labor, Health and Human 
Services, and Energy, and the Attorney General, while Sec. 30.3 
summarizes how the regulations in this part are organized by subject 
area.

Definitions

    This section of the regulation defines the principal terms used in 
this part. It includes terms specifically defined in the EEOICPA that, 
for the convenience of the user of this part, are repeated in this 
section. The Department seeks comments on all of the definitions used 
in the regulation, including, in particular, those addressed in the 
following paragraphs.
    The Sec. 30.5(g) definition of benefit or compensation includes the 
money DOL pays to or on behalf of a claimant as well as any other 
amounts paid for such things as medical treatment, monitoring, 
examinations, services and supplies and the transportation and other 
expenses incurred in securing such medical treatment. This section also 
distinguishes the meaning of the term ``compensation'' as it is used in 
EEOICPA section 3628(a)(1)--the $150,000 lump sum payment--and as it is 
used in EEOICPA section 3630(a)--the $50,000 lump sum payment to 
covered employees or their survivor(s) under section 5 of the RECA.
    EEOICPA section 3630(a) describes a covered uranium employee as 
``an individual who receives, or has received, $100,000 under section 5 
of the RECA for a claim made under that Act.'' Because either an 
eligible employee or that eligible employee's survivor(s) may receive 
$100,000 under section 5 of the RECA, interpreting the word 
``individual'' in the section 3630(a) definition of ``covered uranium 
employee'' as either an employee or that employee's survivor(s) results 
in having to award $50,000 to the survivor of a deceased survivor. This 
would create a result that does not appear to have been intended by 
Congress and is inconsistent with the definitions of covered beryllium 
employees, covered employees with cancer, and covered employees with 
chronic silicosis under the EEOICPA. These definitions of covered 
employee include only persons who are or were employees, they do not 
include survivors as covered employees. Such an overly literal 
definition of ``covered uranium employee'' in the EEOICPA is 
inconsistent with the purpose of the EEOICPA ``to provide for timely, 
uniform, and adequate compensation of covered employees and, where 
applicable, survivors of such employees suffering from illnesses 
incurred by such employees in the performance of duty * * *.'' (see 
EEOICPA section 3611(b)). Furthermore, the conference report on the 
EEOICPA also notes that section 3630 establishes ``an additional 
entitlement for certain uranium miners, millers, and transporters, or 
the survivor of any such employee if the employee is deceased, who 
receives, or has received, payment of a claim under the Radiation 
Exposure Compensation Act (42 U.S.C. 2210 note).'' H.R. Conf. Rep. No. 
96-945, at 982 (2000). To avoid compensation of survivors of survivors, 
the Department has defined a ``covered uranium employee'' as an 
employee who has been determined to be entitled to compensation under 
section 5 of the Radiation Exposure Compensation Act, as amended, (42 
U.S.C. 2210 note) for a claim made under that Act.
    The EEOICPA does not define disability but uses that term in 
section 3628(a) as a qualification for entitlement to the $150,000 lump 
sum payment. While other federally administered workers' compensation 
programs define ``disability'' to require a claimant to establish a 
loss of wage earning capacity or permanent impairment, it is clear from 
Congress' description of this compensation program in EEOICPA section 
3611(b), that an employee need only establish, to OWCP's satisfaction, 
that he or she has or has had one of the covered occupational 
illnesses, without establishing a loss of wage earning capacity or 
permanent impairment as a result of that illness. The definition of 
``disability'' in Sec. 30.5(w) reflects this Congressional intent.
    The EEOICPA defines survivor as any individual or individuals 
entitled to compensation under the survivor provisions of the Federal 
Employees' Compensation Act (FECA), 5 U.S.C. 8133. Therefore, the 
definition of survivor in Sec. 30.5(dd) identifies those individuals 
who would qualify as survivors of a deceased covered employee under 
section 8133 of the FECA. A significant feature of the FECA survivor 
provision is the limitation that the list of eligible individuals does 
not include a child over the age of 18 unless that child is a 
``student'' as defined in section 8101(17) of the FECA, or is incapable 
of self-support. Similarly, non-dependent parents, siblings, 
grandparents and grandchildren do not qualify as survivors.

Information in Program Records

    Sections 30.10 and 30.11 describe the Privacy Act system of records 
entitled DOL/ESA-49 that covers all OWCP records relating to claims 
filed under the EEOICPA. This system of records is both maintained by 
and under the control of OWCP. The records contained in DOL/ESA-49 are 
considered confidential and may not be disclosed except as provided by 
the Privacy Act of 1974. Section 30.12 describes the process that must 
be used to either obtain copies of or amend records contained in DOL/
ESA-49.

Rights and Penalties

    Section 30.16 makes reference to some of the criminal and civil 
proceedings that can result from filing a fraudulent or false claim or 
statement with OWCP in connection with a claim under the EEOICPA, and 
notes that the Department of Justice has the sole authority to initiate 
criminal proceedings. Section 30.17 sets out the Act's statutory 
requirement for permanent forfeiture of all benefits whenever a 
claimant defrauds the federal government in connection with a claim 
under the EEOICPA or any other federal or state workers' compensation 
law.

Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

    This subpart describes the early steps in OWCP's claims 
adjudication process and includes a general description of the evidence 
an employee or survivor must submit to meet his or her burden of proof. 
It also explains the special procedures used in the early adjudication 
of claims for cancer that do not involve members of the Special 
Exposure Cohort, which includes HHS's responsibility for calculating a 
reconstructed dose.

Claims for Occupational Illness--Employee or Survivor's Actions

    Section 30.100 describes how an employee can file (or withdraw) a

[[Page 28953]]

written claim for benefits under the Act, and explains the three 
alternate methods that can be used to ``file'' such a claim for the 
purpose of establishing a commencement date for any possible 
entitlement to medical benefits should the claim ultimately be approved 
by OWCP. Since an employee's possible entitlement to any medical 
benefits under the Act commences on the date the written claim is 
filed, OWCP will choose the earliest filing date from among the three 
alternate methods--the date the claim is mailed to OWCP (as determined 
by postmark), the date the claim is actually received by OWCP, or the 
date the claim is actually received by DOE. Section 30.101 addresses 
these same topics in the context of claims of survivors.
    Although use of the claim forms that appear in the list of forms 
contained in Sec. 30.102 is not required to file a claim (a simple 
letter that contains words of claim is legally sufficient), claims 
should be filed using OWCP's official claim forms to ensure that all 
information necessary for the early stages of the claims adjudication 
process has been submitted. Form EE-1 (for an employee claiming for his 
or her own occupational illness) and Form EE-2 (for a survivor of such 
a deceased employee) are provided for these purposes.

Claims for Occupational Illness--Actions of DOE

    In light of the broad range of employment situations that could 
lead to an exposure that might result in an occupational illness 
compensable under the Act, the Department has decided to seek the type 
of basic factual information that an employer would otherwise provide 
to OWCP from DOE. Therefore, Sec. 30.105 indicates that DOE will have 
the responsibility to either concur or disagree (or indicate that it 
lacks sufficient information to either concur or disagree) with the 
employment history submitted by the employee in support of his or her 
claim. DOE will also be responsible for helping employees establish, 
through alternate methods, the necessary factual basis to support their 
employment histories when the usual documentary evidence is not 
available. Section 30.106 addresses these same DOE responsibilities in 
the context of claims of survivors.

Evidence and Burden of Proof

    Section 30.110 lists the four classes of individuals who are 
entitled to compensation under sections 3623, 3627 and 3630 of the 
EEOICPA, and Sec. 30.111 describes the burden of proof on these 
individuals to establish their entitlement to benefits under the Act. 
While every claimant must establish eligibility by a preponderance of 
the evidence, section 30.111(c) permits the use of written affidavits 
or declarations as evidence of employment history or survivor 
relationship where the claimant attests that actual records on these 
matters do not exist. DOL further assists claimants in the development 
of their claims by notifying the claimant of any deficiency and 
providing an opportunity for correction of the deficiency (section 
30.111(b)).

Special Procedures for Certain Cancer Claims

    E.O. 13179 assigns the ``primary responsibility for administering'' 
the compensation program to the Secretary of Labor. However, a portion 
of the adjudication process of claims for cancer that do not involve 
employees who are members of the Special Exposure Cohort (or a survivor 
of such an employee) is assigned to HHS. Accordingly, Sec. 30.115 
indicates that if OWCP determines that such an employee (or a survivor 
of such an employee) has established that he or she contracted cancer 
after beginning covered employment, OWCP will refer the claim to HHS 
for dose reconstruction. This package will include, among other things, 
any employment history compiled by OWCP. It will not, however, 
constitute a recommended or final decision by OWCP on the claim.
    After completing such further development of the employment history 
as it may deem necessary, HHS will reconstruct the radiation dose and 
notify the claimant directly of its findings. At the same time, HHS 
will also inform OWCP of its findings regarding the radiation dose, at 
which point OWCP will resume adjudication of the claim (based on the 
reconstructed dose calculated by HHS) and determine whether the 
claimant has met the eligibility criteria set forth in subpart C.

Subpart C--Eligibility Criteria

Eligibility Criteria for Claims Relating to Covered Beryllium 
Illness

    Section 30.205 describes the criteria, set forth in sections 
3621(7) and 3621(8) of the EEOICPA, that a claimant must satisfy to 
qualify for compensation for a covered beryllium illness--that he or 
she was (or is a survivor of) a ``covered beryllium employee'' who has 
a covered beryllium illness. Consistent with other federally 
administered workers' compensation laws, this section also provides 
compensation (medical benefits only) for any injury, illness, 
impairment, or disability sustained as a consequence of a covered 
beryllium illness.
    To establish the status as a ``covered beryllium employee,'' a 
claimant may submit any trustworthy contemporaneous record that 
establishes proof of employment or presence at a covered facility 
during a period when beryllium dust, particles or vapor was present 
(Sec. 30.206(a)). Section 30.206(b) describes the type of records that 
may be considered as evidence of employment or presence at a covered 
facility. Section 30.207 describes the type of medical evidence 
required to establish beryllium sensitivity and chronic beryllium 
disease as set forth in sections 3621(8) and 3621(13) of the EEOICPA, 
and explains the claimant's burden in establishing a consequential 
injury or illness.

Eligibility Criteria for Claims Relating to Cancer

    Section 30.210 describes the two types of employees with cancer for 
whom the EEOICPA provides compensation. To be eligible for compensation 
for cancer, an employee either must be: (1) A member of the Special 
Exposure Cohort (SEC) who was a DOE employee, a DOE contractor 
employee, or an atomic weapons employee who contracted a specified 
cancer after beginning such employment; or (2) a DOE employee, a DOE 
contractor employee, or an atomic weapons employee who contracted 
cancer (that has been determined, pursuant to guidelines promulgated by 
HHS, ``to be at least as likely as not related to such employment''), 
after beginning such employment. Consistent with other federally 
administered workers' compensation laws, this section also provides 
compensation (medical benefits only) for any injury, illness, 
impairment, or disability sustained as a consequence of a covered 
cancer.
    Section 30.213(a) describes the criteria set out in section 
3621(14) of the EEOICPA for establishing eligibility as a member of the 
SEC. To satisfy the EEOICPA requirement that an eligible employee must 
have worked at a designated gaseous diffusion plant for a number of 
workdays aggregating at least 250 workdays before February 1, 1992, 
Sec. 30.213(b) allows the claimant to aggregate the days of service at 
more than one gaseous diffusion plant. Section 30.213(c) describes the 
type of evidence a claimant may submit to establish his employment with 
a covered employer under this section. A written medical report that 
includes a

[[Page 28954]]

diagnosis and the date of diagnosis is sufficient to establish either a 
specified cancer, in the case of SEC members, or cancer for other 
covered employees, under Sec. 30.214(a). Section 30.214(b) describes 
the medical evidence required to establish an injury or disease that 
occurs as a consequence of a covered cancer.

Eligibility Criteria for Chronic Silicosis

    Section 30.215 sets forth the EEOICPA section 3627 requirements for 
entitlement to compensation for chronic silicosis. To be eligible for 
benefits, the employee must establish employment with the DOE or with a 
DOE contractor and presence for a number of work days aggregating at 
least 250 work days during the mining of tunnels at a DOE facility 
located in Nevada or Alaska, which were used for atomic weapon tests or 
experiments. Section 30.216(c) allows the claimant to aggregate the 
days of service at more than one qualifying site. The employee must 
have been diagnosed with chronic silicosis, supported by medical 
evidence set forth in Sec. 30.217.

Eligibility of Certain Uranium Employees

    Section 30.220 describes how beneficiaries of $100,000 under 
section 5 of the RECA establish entitlement to an additional $50,000 
and medical benefits provided by section 3630 of the EEOICPA. Since 
RECA claimants may receive payment under RECA in the form of a promise 
to pay at a future date, the Department has interpreted the requirement 
in section 3630 of the Act that a claimant ``receives or has received 
$100,000'' under RECA to include claimants who receive or have received 
a promise of subsequent payment.

Subpart D--Adjudicatory Process

    This subpart describes the adjudicatory process OWCP will follow 
when it issues decisions on claims under the Act. It contains 
information about filing objections following a recommended decision 
and requesting a hearing before OWCP's Final Adjudication Branch (FAB), 
and describes the manner in which the FAB will issue decisions on 
claims after a hearing, a review of the written record, or on a summary 
basis. This subpart also indicates when decisions of the FAB will 
become final, and describes the process whereby OWCP may exercise its 
discretion to modify a final decision, either on its own motion or upon 
the motion of a claimant.

Recommended Decisions on Claims

    Sections 30.305 through 30.307 contain a basic description of a 
``recommended'' decision on a claim, which will contain both findings 
of fact and conclusions of law, as appropriate. These sections also 
describe the general process OWCP will use when it issues a recommended 
decision, and indicate to whom OWCP will send the recommended decision. 
It is important to recognize that a recommended decision does not 
constitute a final decision by OWCP on a claim; instead, it only 
represents an initial recommendation made by an OWCP claims examiner. 
Therefore, since a recommended decision will not be OWCP's final 
decision on a claim under the EEOICPA, a claimant may not seek review 
of such decision in federal court.

Hearings and Final Decisions on Claims

    Section 30.310 indicates that when the district office issues a 
recommended decision on a claim, it will also forward the record of 
such claim to the FAB, whether the recommended decision was favorable 
or unfavorable to the claimant. Within 60 days of the date the district 
office issues the recommended decision (unless this period is extended 
by the FAB), the claimant must object to specific findings of fact and/
or conclusions of law contained in the recommended decision to trigger 
either a hearing (upon specific request) or a review of the written 
record by the FAB. In the absence of any specific objections, 
Sec. 30.311(a) provides that the FAB will summarily affirm the 
recommended decision without conducting any further review of such 
decision. The Department believes that bringing the claims adjudication 
process to an end when a claimant does not raise any specific 
objections is appropriate, even if the claimant asks for a hearing, 
since the expenditure of administrative resources needed to conduct 
further review of a claim under these circumstances will most likely 
serve no useful purpose given the non-adversarial nature of the claims 
adjudication process. Section 30.311(b) provides that the FAB will also 
summarily affirm the recommended decision, in whole or in part, if the 
claimant waives any objection to all or part of such decision.
    If a claimant files specific objections to a recommended decision 
with the FAB, but does not request a hearing on his or her claim, 
Sec. 30.312 states that the FAB will consider the objections by means 
of a review of the written record of the claim. If the claimant only 
objects to a part of the recommended decision (for example, the 
claimant objects to OWCP's rejection of the claim with respect to one 
occupational disease, but does not object to OWCP's acceptance of the 
claim for a different occupational disease), this section notes that 
the FAB has the discretionary authority to issue a decision summarily 
affirming the uncontested part, if such action is appropriate. Section 
30.313 describes the process a FAB reviewer will follow when he or she 
conducts a written review of the record, which provides for the 
submission of additional evidence or argument from the claimant, or at 
the request of the FAB reviewer.
    If the claimant files objections and requests a hearing within the 
60-day period referred to above, Sec. 30.314 sets out the general 
procedural framework that a FAB reviewer will follow through the 
completion of the informal hearing process. This section describes a 
FAB reviewer's wide discretion in matters of scheduling and in the 
conduct of the hearing itself. Consistent with the provision in 
Sec. 30.312 allowing partial decisions, Sec. 30.314 also provides that 
if the claimant only objects to a part of the recommended decision, a 
FAB reviewer has the discretionary authority to issue a decision that 
summarily affirms the uncontested part. Section 30.315 completes the 
description of the hearing process by indicating that a claimant may 
only postpone a scheduled hearing in certain limited circumstances, and 
if the hearing cannot be rescheduled in such a way as to prevent delay, 
a review of the written record will be conducted instead. It also 
indicates that a claimant may request a change to a review of the 
written record at any time after requesting a hearing, and that once 
such a change is made, no further opportunity for a hearing will be 
provided.
    The varied processes by which the FAB issues decisions on claims 
(or parts of claims) are described in Sec. 30.316. Subsection (a) 
provides for summary affirmance (in whole or in part) of a recommended 
decision when no specified objections have been raised, subsection (b) 
provides for the issuance of a decision on a claim at the conclusion of 
either a hearing or a review of the written record, and subsection (c) 
provides for the automatic affirmance of any recommended decision that 
is pending either a hearing or a review of the written record at the 
FAB for more than one year. Subsection (d) indicates that decisions of 
the FAB issued pursuant to Sec. 30.316(a), (b) or (c) will become final 
upon expiration of 30 days from the date they are issued, unless the 
claimant files a timely request for reconsideration

[[Page 28955]]

under Sec. 30.319, and subsection (e) indicates to whom the FAB will 
send its decision. Section 30.317 further provides that at any point in 
time prior to issuing a decision on a claim, the FAB may request that a 
claimant submit additional evidence or argument and may, in the 
exercise of its discretion, remand a claim to the district office for 
further development without issuing a decision under Sec. 30.316.
    Finally, Sec. 30.319 sets out the process whereby a claimant may 
request reconsideration of a decision of the FAB before such decision 
becomes final, and notes that if the request is granted, the FAB will 
review the district office's recommended decision again and issue a new 
decision on the claim without holding a hearing. This section also 
points out that if the FAB denies the request for reconsideration, the 
decision at issue will become final on the date the request is denied. 
In Sec. 30.319(c), the Department describes the point at which a 
decision on a claim under the EEOICPA becomes final for purposes of 
seeking judicial review, which occurs when all administrative review 
opportunities have been exhausted.

Modification

    In order to accommodate those rare instances when OWCP may wish to 
reopen a final decision of the FAB, Sec. 30.320 describes OWCP's 
discretionary authority to modify such a decision at any time on its 
own motion. This section also provides that a claimant can move for 
modification within one year of the date the FAB decision became final, 
provided that he or she can establish a mistake of fact in the final 
decision or changed circumstances. If OWCP determines that modification 
is warranted, this section notes that it may issue a new recommended 
decision modifying the prior final decision on a claim. It also notes 
that while any new recommended decision issued on modification will be 
subject to the adjudicatory process described in subpart D, the scope 
of review at the FAB will be limited to the merits of the new 
recommended decision; OWCP's discretionary determination to modify the 
prior final decision will not be reviewable. Subsection (c) completes 
the description of the adjudicatory process by noting that the time 
limitations in Sec. 30.320 will not prevent a claimant from filing 
another claim for a new occupational disease or consequential injury 
not already considered by OWCP, and that regardless of the number of 
claims OWCP accepts, no claimant can receive more than one award of 
monetary compensation under sections 3628(a)(1) or 3630(a) of the Act.

Subpart E--Medical and Related Benefits

    This subpart contains a description of the medical benefits that 
are provided to employees under the EEOICPA, the general rules for 
obtaining medical care, and information regarding an employee's initial 
choice of physician. It also describes the manner in which OWCP may 
direct an employee to be examined by another physician of its choosing, 
and how OWCP resolves conflicts in the medical evidence that may arise 
as a result of such an examination. Finally, subpart E describes the 
general requirements for medical reports to be submitted to OWCP, and 
the process to be used by employees to seek reimbursement for medical 
expenses they have paid.

Medical Treatment and Related Issues

    Section 30.400 reflects the basic entitlement to medical benefits 
contained in section 3629 of the Act, including the provision that an 
employee's entitlement to such benefits commences upon the date the 
claim is filed. This section also indicates that medical treatment that 
was provided to an employee who dies before the claim is accepted will 
be paid for if the claim is accepted, as long as such treatment was 
provided on or after the date the employee filed his or her claim. 
Section 30.400 indicates that any qualified medical provider may 
provide appropriate services, appliances and supplies.
    Consistent with OWCP's definition of ``physician'' set out in 
subpart A, which is the same as the definition set forth in section 
8101(2) of the FECA, Secs. 30.401 and 30.402 describe the special rules 
that will apply to medical services provided by chiropractors and 
clinical psychologists. Generally, chiropractors are limited to 
providing treatment to correct a spinal subluxation, and a diagnosis of 
spinal subluxation as demonstrated by x-ray to exist must appear in the 
chiropractors report before payment of the bill will be considered. 
Clinical psychologists cannot serve as physicians for conditions that 
include a physical component unless they are authorized to do so under 
the applicable state law.
    Section 30.403 indicates that the personal care services of a home 
health aide, licensed practical nurse or similarly trained individual 
will be paid for as a medical benefit, so long as such services are 
medically necessary. In addition, Sec. 30.404 indicates that 
transportation and other reasonable and necessary expenses needed to 
obtain authorized medical treatment will be paid for as a medical 
benefit.
    Since section 3629(b)(2) of the Act specifically provides employees 
with the right to select an initial treating physician, Sec. 30.405 
indicates that OWCP will provide them with an opportunity to designate 
a treating physician when it accepts the claim. The physician so 
selected can refer the employee to a specialist without first seeking 
approval from OWCP, but in all other situations the employee must make 
a written request to OWCP before he or she changes treating physicians.

Directed Medical Examinations

    On occasion, OWCP may need to have an employee examined by a 
physician of its own choosing for a second opinion. Section 30.410 
addresses this need (in a manner consistent with OWCP's practices under 
section 8123 of the FECA) and indicates that an employee may not have 
anyone else present at the examination, other than a physician paid by 
him or her, unless OWCP decides that exceptional circumstances exist. 
This section also indicates that where an actual examination is not 
needed, OWCP may send the case file for a second opinion review.
    Also consistent with section 8123 of the FECA, Sec. 30.411 
describes what OWCP will do once it receives the report from the second 
opinion physician. OWCP will base its determination on entitlement on 
the report that has greater probative value, unless there is a conflict 
in the medical evidence between the second opinion physician and the 
employee's physician. A conflict only occurs when two reports of 
virtually equal weight and rationale reach opposing conclusions. When 
this occurs, OWCP will appoint a third physician to make a referee 
examination, and the report of this physician will be entitled to 
special weight sufficient to resolve the conflict if it has sufficient 
probative value. An employee may not have anyone else present at the 
referee examination, unless OWCP decides that exceptional circumstances 
exist, and OWCP may send the case file for review by a referee 
physician if an actual examination is not needed.
    Section 30.412 indicates that the costs of the directed medical 
examinations described in Secs. 30.410 and 30.411 will be paid for out 
of the fund as medical benefits. In addition, OWCP will reimburse the 
employee for necessary and reasonable expenses incident to such 
directed medical examinations out of the fund.

[[Page 28956]]

Medical Reports

    Section 30.415 contains a general description of what a medical 
report submitted to OWCP from an attending physician should contain, 
and Sec. 30.416 indicates that Form EE-7 should be used as a guide in 
the preparation of medical reports. For cases requiring hospital 
treatment or prolonged care, Sec. 30.417 indicates that periodic 
narrative reports from the attending physician are required, and that 
OWCP may ask the physician to respond to questions regarding continuing 
medical treatment for the accepted occupational illness.

Medical Bills

    Medical providers should submit medical bills directly for payment 
out of the compensation fund. However, in those instances where an 
employee pays a medical bill and claims for reimbursement out of the 
fund, Sec. 30.420 refers the employee to the itemized bill procedures 
described in Sec. 30.702, while Sec. 30.421 sets out the standard 
industry practice of requiring submission of medical bills by the later 
of the end of the calendar year after the year the expense was 
incurred, or the end of the calendar year after the year OWCP accepted 
the claim.
    Since the OWCP fee schedule sets maximum limits on amounts payable 
for many medical services, Sec. 30.422 notes that an employee may be 
only partially reimbursed for medical expenses because the amount he or 
she paid exceeds the maximum allowable charge. When this happens, OWCP 
will advise the employee of his or her responsibility to ask the 
provider to refund the excess charge paid to the employee, or to credit 
the employee's account. If the provider refuses to do so, OWCP may 
authorize reasonable reimbursement to the employee after reviewing the 
facts and circumstances involved.

Subpart F--Survivors; Payments and Offsets; Overpayments

Survivors

    Sections 30.500 through 30.502 address the identification of 
persons entitled to receive monetary compensation based on their 
relationship to a deceased covered employee under the Act. The class of 
persons who may be a ``survivor'' under the EEOICPA is taken from 
section 8133 of the FECA, as required by section 3621(18) of the 
EEOICPA. Any reference to section 8133 of the FECA is solely for the 
purpose of identifying the individuals who may be survivors under 
EEOICPA. Section 8109 of the FECA provides the order of precedence and 
proportion of monetary compensation to be paid to the eligible 
surviving beneficiaries, if any, under sections 3628(e)(2) and 
3630(e)(2) of the EEOICPA. These regulations specifically detail who 
may be entitled to receive compensation based upon their survivor 
status. It should be noted that widows, widowers and minor children are 
the only persons who need not be dependent upon the deceased covered 
employee to receive monetary compensation as a survivor. The remaining 
persons, who may be survivors under section 8133 of FECA, must have 
been ``dependent'' upon the deceased covered employee at his or her 
time of death. The result of this provision is that adult children of 
deceased covered employees, as well as other remaining family members, 
such as ``non-dependent'' parents, siblings, grandparents or 
grandchildren, will not be eligible to receive any monetary 
compensation under this Act. Finally, OWCP will take all necessary 
steps to determine the identity and correct amount of compensation to 
be paid to each and every eligible surviving beneficiary.

Payments and Offsets

    Sections 30.505 through 30.507 address the rules for the payment of 
monetary compensation to claimants under the EEOICPA. No vested right 
exists to receive compensation under the EEOICPA, thus claimants must 
be alive to receive the compensation for which they filed a claim. In 
cases where the claimant is deceased, OWCP will pay the eligible 
surviving beneficiaries or their legal guardian, if any. In making 
payment on a claim OWCP will take all necessary and reasonable steps in 
determining the entitlement and identity of the claimant and/or the 
eligible surviving beneficiaries related to a claim for benefits, as 
well as any offset required by section 3641 of the EEOICPA to such an 
amount awarded. OWCP will attempt to ensure that the correct person 
will receive payment in the correct amount by reserving the right to 
conduct any investigation, including requiring any claimant or eligible 
surviving beneficiary to provide or execute an affidavit, record or 
document, or authorize the release of any information deemed necessary 
for purposes of payment. No payment will be processed unless an 
``Acceptance of Payment'' form is signed and returned by the 
beneficiary. Furthermore, any failure by the claimant or eligible 
surviving beneficiary to cooperate with an investigation or provide 
information to OWCP may be deemed a rejection of the payment, unless 
the claimant or eligible surviving beneficiary does not have the legal 
authority to provide, release or authorize access to the requested 
information or documents. Any rejected compensation payment, or shares 
of compensation payment, will not be distributed to the remaining 
eligible surviving beneficiaries, rather, the payment will be returned 
to the Fund. With respect to the ``offset'' provisions within 
Sec. 30.505, OWCP is requiring claimants and eligible surviving 
beneficiaries who receive money awards or settlements based on injuries 
suffered, for which they have also filed a claim under the EEOICPA, to 
declare such amounts received for purposes of subtracting that amount 
from the total award to be paid on the EEOICPA claim. For purposes of 
OWCP's offset calculations, such claims as state workers' compensation 
benefits, life insurance or health insurance contracts will not be 
included in the analysis. The provisions in this section concerning 
multiple payments are set forth to provide notice to claimants and 
survivors that a covered employee's injuries due to any of the 
occupational illnesses recognized under the EEOICPA give rise to only 
one lump-sum payment of monetary compensation per covered employee. 
However, a claimant who is a covered employee and who also qualifies as 
an eligible surviving beneficiary may receive more than one payment; 
similarly, an eligible surviving beneficiary may receive payment or a 
portion of a payment each time he or she qualifies as an eligible 
surviving beneficiary.
    Finally, the provisions in Secs. 30.505 and 30.506 regarding 
``beryllium sensitivity'' make clear that no lump-sum monetary 
compensation will be paid for such illness, rather ``monitoring'' will 
be the form of compensation afforded to such covered employees in 
accordance with section 3628(a)(2) of the Act. Monitoring shall consist 
of regular medical examinations and diagnostic testing to determine if 
the covered employee has developed ``established chronic beryllium 
disease.'' Once the individual develops and has diagnosed the 
established chronic beryllium disease, he or she may then submit 
evidence of such diagnosis to OWCP and request appropriate benefits 
under the EEOICPA.

Overpayments

    Sections 30.510 through 30.513 detail the process of how OWCP will 
identify and pursue collection of overpayments of compensation for 
purposes of the EEOICPA. These sections have been written to highlight 
and clarify OWCP's

[[Page 28957]]

process to identify, notify, resolve and collect any overpayments made 
to EEOICPA beneficiaries. Specifically, OWCP will notify each recipient 
of any compensation payment by including with each check a narrative 
description indicating the reasons for payment. For those payments sent 
via electronic funds transfer (EFT) clear notification of the date and 
amount of payment will appear on the recipient's bank statement. When 
OWCP initially identifies an overpayment it will notify the recipient 
of its existence and attempt to clarify and resolve the dispute through 
an informal process. Specifically, OWCP will notify the beneficiary of 
the overpayment and allow the beneficiary 30 days to submit comments in 
writing and documentation contesting the overpayment. Upon the end of 
that 30-day period, OWCP will notify the beneficiary of its 
determination of whether a debt is owed to OWCP. If this informal 
process fails to resolve the dispute, OWCP will then advise the 
recipient of its intentions to collect the overpayment using the 
Department's debt collection procedures set forth in 29 CFR part 20. 
Finally, if the Department's own procedures fail to procure the 
repayment of the debt, such overpayment is subject to the provisions of 
the Federal Claims Collection Act of 1996 (as amended) and the debt may 
be referred to the Department of Justice, or a debt collection agency.

Subpart G--Special Provisions

    This subpart addresses some additional matters that can arise in 
connection with a claim under the EEOICPA. It contains provisions 
describing representation of claimants before OWCP and also describes 
the subrogation rights the United States has upon payment of 
compensation under the Act, as well as the statutory election of 
remedies for claimants who file tort suits against beryllium vendors or 
atomic weapons employers.

Representation

    Section 30.600 notes that while the claims process established by 
this part is informal and non-adversarial, a claimant may appoint one 
individual at a time to represent his or her interests before OWCP. 
Such appointments must be in writing, and OWCP will only recognize one 
individual at a time as the duly appointed representative for the 
claimant. Section 30.601 sets out the legal restrictions on who may 
serve as a representative, and when a federal employee can be appointed 
to act as a claimant's representative. Finally, Sec. 30.602 indicates 
that the claimant is solely responsible for paying any representative's 
fee for services and costs associated with the representation; OWCP is 
in no way liable for any portion of the representative's fee. EEOICPA 
section 3648 limits the attorneys fees that can be charged a claimant 
and provides a $5000 fine for exceeding those limits. Since DOJ is 
responsible for deciding whether to seek the imposition of a fine, the 
Department defers to DOJ's interpretation of the statutory limitation.

Third Party Liability

    Section 3642 of the Act provides that upon payment of compensation 
to a claimant, the United States is subrogated to any right or claim 
that the claimant may have on account of his or her injuries, for the 
amount of such payment of compensation. Sections 30.605 through 30.611 
describe the manner in which the United States will exercise this 
statutory authority. These sections require claimants who have received 
EEOICPA benefits to inform OWCP if they receive money or other property 
as a result of a settlement or judgment related to their claims, and 
provide advice regarding the method of valuing structured settlements 
and the amount to which the United States is subrogated. These sections 
also note that a settlement or judgment received as a result of 
allegations of medical malpractice in treating an illness covered by 
the EEOICPA is a recovery that must be reported to OWCP, while payments 
to an employee or eligible surviving beneficiary as a result of an 
insurance policy which the employee or eligible surviving beneficiary 
has purchased is not. They also provide guidance on how the amount paid 
on a single EEOICPA claim is attributed to different conditions for 
purposes of calculating the amount to which the United States is 
subrogated.

Election of Remedy Against Beryllium Vendors and Atomic Weapons 
Employers

    Based on the explicit language of section 3645 of the EEOICPA, 
Secs. 30.615 and 30.616 describe the severe limitations on the receipt 
of compensation under the Act that arise when a claimant files a tort 
suit against either a beryllium vendor or an atomic weapons employer. 
Section 30.615 provides that if a claimant filed such a tort suit on or 
prior to October 30, 2000, he or she will not be eligible to receive 
compensation unless the suit is dismissed no later than December 31, 
2003.
    Section 30.616 notes that if a claimant files such a tort suit 
after October 30, 2000, he or she will not be eligible to receive 
compensation unless the suit is dismissed no later than April 30, 2003, 
or 30 months after the date the claimant first became aware that his or 
her illness may be connected to the exposure covered by the EEOICPA, 
whichever is later. If a claimant files such a tort suit after the 
later of either April 30, 2003, or 30 months after the date the 
claimant first became aware that his or her illness may be connected to 
the exposure covered by the EEOICPA, he or she also will not be 
entitled to any benefits under subtitle B of the EEOICPA. For both of 
these provisions, ``the date the claimant first became aware'' will be 
deemed to be the date he or she received either a reconstructed dose 
from HHS, or a diagnosis of a covered beryllium illness, as applicable.
    Section 30.617 indicates that prior to authorizing any payment 
under Sec. 30.505, OWCP will require the claimant or each surviving 
beneficiary to execute and provide an affidavit showing whether he or 
she complied with the filing and dismissal requirements of Secs. 30.615 
or 30.616, if applicable. This section also authorizes OWCP to require 
the submission of supporting evidence to confirm the particulars of any 
affidavit provided thereunder.

Subpart H--Information for Medical Providers

    This subpart contains the information that will be needed by 
medical providers of services and supplies to employees with approved 
claims under the EEOICPA. It also contains the rules for the submission 
of medical bills from providers and employees, and describes the fee 
schedule OWCP will apply to charges for certain medical procedures and 
services. The process described in this subpart is similar to that used 
by medical providers submitting bills for services provided to 
claimants under other federal programs, including the FECA program 
administered by OWCP.

Medical Records and Bills

    Section 30.701 sets out the process medical providers must follow 
when they submit bills for medical and surgical treatment, appliances 
or supplies furnished to employees, except for treatment and supplies 
provided by nursing homes. The provider must itemize the charges on the 
standard Health Insurance Claim Form, HCFA 1500 or OWCP 1500 (for 
professional charges), the UB-92 (for hospitals), or the Universal 
Claim Form (for pharmacies), identify each service performed using the 
Physician's Current Procedural Terminology (CPT) code, the

[[Page 28958]]

Health Care Financing Administration Common Procedure Coding System 
(HCPCS) code, the National Drug Code (NDC), or the Revenue Center Code 
(RCC), and state each diagnosed condition and furnish the corresponding 
diagnostic code using the ``International Classification of Disease, 
9th Edition, Clinical Modification'' (ICD-9-CM).
    Hospitals must submit charges for medical and surgical treatment or 
supplies on the UB-92 and identify each outpatient radiology service, 
outpatient pathology service and physical therapy service performed 
using HCPCS/CPT codes with a brief narrative description. Other 
outpatient hospital services for which HCPCS/CPT codes exist must also 
be coded individually using the coding scheme noted in Sec. 30.701. 
Services for which there are no HCPCS/CPT codes available may be 
identified using the RCCs described in the current edition of the 
``National Uniform Billing Data Elements Specifications.'' The hospital 
must also furnish the diagnostic code using the ICD-9-CM, and if 
outpatient hospital services include surgical and/or invasive 
procedures, the hospital must code each procedure using the proper CPT/
HCPCS codes and furnishing the corresponding diagnostic codes using the 
ICD-9-CM.
    Pharmacies must itemize charges for prescription medications, 
appliances, or supplies on the Universal Claim Form. Bills for 
prescription medications must include the NDC assigned to the product, 
the generic or trade name of the drug provided, the prescription 
number, the quantity provided, and the date the prescription was 
filled. Nursing homes must itemize charges for appliances, supplies or 
services on the provider's billhead stationery.
    Section 30.701(d) expressly indicates that by submitting a bill 
and/or accepting payment, the provider signifies that the service for 
which payment is sought was performed as described and was necessary. 
The provider also agrees to comply with the provisions of subpart H 
that address the rendering of treatment and/or the process for seeking 
reimbursement for medical services, including the limitation imposed on 
the amount to be paid for such services.
    Section 30.702 describes the similar process to be followed by 
employees seeking reimbursement. If an employee has paid bills for 
medical, surgical or other services, supplies or appliances due to an 
accepted occupational illness, he or she should submit an itemized bill 
on the HCFA 1500 or OWCP 1500. The provider of such service must list 
each diagnosed condition and furnish the applicable ICD-9-CM code, and 
identify each service performed using the applicable HCPCS/CPT code. 
The bill must be accompanied by evidence that the employee paid the 
provider for the service and a statement of the amount paid. Copies of 
bills will not be accepted for reimbursement unless they bear the 
original signature of the provider, with evidence of payment.
    An employee will be only partially reimbursed for a medical expense 
if the amount he or she paid to a provider for the service exceeds the 
maximum allowable charge set by OWCP's schedule. If this happens, OWCP 
will advise the employee of the maximum allowable charge for the 
service in question, and that it is his or her responsibility to ask 
the provider to refund the amount paid that exceeds the maximum 
allowable charge. If the provider does not comply with this request 
within 60 days, OWCP will begin the process of excluding the provider 
from further participation in the program. OWCP also has the discretion 
to authorize reimbursement to the employee for the excess amount.
    The time limitation that will apply to payment of medical bills 
submitted by both providers and employees is described in Sec. 30.703. 
This section provides that no bill will be paid if it is submitted more 
than one year beyond the end of the calendar year in which the expense 
was incurred or the service or supply was provided, or more than one 
year beyond the end of the calendar year in which the employee's claim 
was first accepted as compensable by OWCP, whichever is later.

Medical Fee Schedule

    Sections 30.705 through 30.710 describe the cost containment 
methods that will be used when payment is made for medical and other 
health services furnished by physicians, hospitals and other providers. 
These methods will not be applied to charges for non-medical services 
provided in nursing homes, or to charges for appliances, supplies, 
services or treatment furnished by medical facilities of the U.S. 
Public Health Service or the Departments of the Army, Navy, Air Force 
and Veterans Affairs.
    For professional medical services, OWCP will maintain a schedule of 
maximum allowable fees for procedures performed in a given locality. 
The fee schedule consists of an assignment of a value to procedures 
identified by HCPCS/CPT code representing the relative skill, effort, 
risk and time required to perform the procedure, an index based on a 
relative value scale that considers skill, labor, overhead, malpractice 
insurance and other related costs, and a monetary value assignment 
(conversion factor) for one unit of value in each of the categories of 
service. Generally, payment for a listed procedure will not exceed the 
amount derived by multiplying the relative values for that procedure by 
the geographic indices for services in that area and by the dollar 
amount assigned to one unit in that category of service. However, where 
the time, effort and skill required to perform a particular procedure 
vary widely from one occasion to the next, OWCP may choose not to 
assign a relative value to that procedure and instead make individual 
determinations of the amount to be paid. OWCP may also set fees without 
regard to schedule limits for specially authorized consultant 
examinations, directed medical examinations, and other specially 
authorized services.
    Payment for medicinal drugs prescribed by physicians may not exceed 
the amount derived by multiplying the average wholesale price of the 
medication by the quantity or amount provided, plus a dispensing fee. 
All prescription medications identified by NDC will be assigned an 
average wholesale price representing the product's nationally 
recognized wholesale price as determined by surveys of manufacturers 
and wholesalers. OWCP will establish the dispensing fee. Payment for 
inpatient medical services will be made using condition-specific rates 
based on the Prospective Payment System devised by HCFA (42 CFR parts 
412, 413, 424, 485, and 489). Using this system, payment is derived by 
multiplying the diagnosis-related group weight assigned to the hospital 
discharge by the provider-specific factors.
    Sections 30.711 through 30.713 describe the process that will be 
followed when a fee for a billed procedure or cost is reduced, and what 
the medical provider can do following such a reduction. If the charge 
submitted exceeds the maximum amount according to the schedule, payment 
will be made in the amount allowed by the schedule for that service and 
the provider will be notified that payment was reduced in accordance 
with the schedule. The provider will have 30 days to request 
reconsideration of the fee determination by the district office with 
jurisdiction over the employee's claim. OWCP will only reevaluate the 
paid amount if the request is accompanied by evidence showing that the 
code incorrectly identified the procedure, that the presence of a 
severe or concomitant medical condition made treatment

[[Page 28959]]

especially difficult, or that the provider possessed unusual 
qualifications (board certification in a specialty is not sufficient 
evidence of unusual qualifications). Within 30 days of receiving the 
request, the district office will respond stating whether or not an 
additional amount will be allowed. If the district office continues to 
disallow the contested amount, the provider may apply to the Regional 
Director of the region with jurisdiction over the district office 
within 30 days. Within 60 days of an application, the Regional Director 
will issue a decision whether or not an additional amount will be 
allowed. A provider whose fee is partially paid may not request 
reimbursement from the employee for additional amounts.

Exclusion of Providers

    Sections 30.715 through 30.726 describe the procedures OWCP will 
use to exclude providers from payment under this subpart to protect the 
EEOICPA program from fraud and abuse. After completing such inquiry he 
or she deems appropriate, the Regional Director may initiate the 
process of excluding the provider from participation in the EEOICPA 
program. The Regional Director begins the process by sending the 
provider a letter, by certified mail and with return receipt requested, 
containing a statement of the grounds upon which exclusion will be 
based, a summary of the information the Regional Director relied on in 
reaching an initial decision that exclusion proceedings should begin, 
an invitation to the provider to either resign voluntarily from 
participation in the EEOICPA program or to request a decision on 
exclusion, a notice of the provider's right to request a formal hearing 
before an administrative law judge, and a notice that if the provider 
fails to answer the letter of intent within 30 days, the Regional 
Director may deem the allegations it contains to be true and may order 
exclusion of the provider without conducting any further proceedings. 
If the provider submits an answer, the Regional Director will issue a 
written decision and will send a copy of the decision to the provider 
by certified mail, return receipt requested. The decision will advise 
the provider of his or her right to request, within 30 days of the date 
of the decision, a formal hearing before an administrative law judge.
    Any request for a hearing must identify the issues to be addressed 
and must include any request for a more definite statement by OWCP, any 
request for the presentation of oral argument or evidence, and any 
request for a certification of questions concerning professional 
medical standards, medical ethics or medical regulation for an advisory 
opinion from a competent recognized professional organization or 
federal, state or local regulatory body. The Chief Administrative Law 
Judge of the Department of Labor will assign the matter for an 
expedited hearing, and the administrative law judge assigned to the 
matter will consider the request for hearing, act on all requests 
therein, and issue a Notice of Hearing and Hearing Schedule for the 
conduct of the hearing. To the extent appropriate, proceedings before 
the administrative law judge will be governed by 29 CFR part 18. At the 
conclusion of the hearing, the administrative law judge will issue a 
written decision and serve it on all parties to the proceeding, their 
representatives and OWCP. An aggrieved party may, within 30 days of the 
issuance of such decision, file a petition for discretionary review 
with the Director for Energy Employees Occupational Illness 
Compensation on one or more of the following grounds: a finding or 
conclusion of material fact is not supported by substantial evidence; a 
necessary legal conclusion is erroneous; the decision is contrary to 
law or to the duly promulgated rules or decisions of OWCP; a 
substantial question of law, policy, or discretion is involved; or a 
prejudicial error of procedure was committed. If a petition is granted, 
review will be limited to the questions raised by the petition, and a 
petition not granted within 20 days after receipt of the petition is 
deemed denied.
    After completing the exclusion process, OWCP will notify all 
district offices, the HCFA, and all employees who are known to have had 
treatment, services or supplies from the excluded provider within the 
six-month period immediately preceding the order of exclusion. However, 
OWCP will not refuse to reimburse an employee for otherwise 
reimbursable medical treatment, services or supplies if they were 
rendered in an emergency, or if the employee could not reasonably have 
been expected to have known of the exclusion. When an employee is 
notified that his or her attending physician has been excluded, OWCP 
will provide the employee with an opportunity to select a new attending 
physician. An excluded provider may apply for reinstatement one year 
after the exclusion, unless the order provides for a shorter period. An 
application for reinstatement must be addressed to the Director for 
Energy Employees Occupational Illness Compensation, and contain a 
statement of the basis for the application. The Director for Energy 
Employees Occupational Illness Compensation will only order 
reinstatement where reinstatement is clearly consistent with the goal 
of this subpart to protect the EEOICPA program against fraud and abuse. 
To satisfy this requirement the provider will have to provide 
reasonable assurances that the basis for the exclusion will not be 
repeated.

V. Statutory Authority

    Section 3611 of the Energy Employees Occupational Illness 
Compensation Program Act provides the general statutory authority, 
which Executive Order 13179 allocates to the Secretary, to prescribe 
rules and regulations necessary for the administration and enforcement 
of the Act. Sections 3629 and 3630 provide specific authority regarding 
medical treatment and care, including determining the appropriateness 
of charges. The Debt Collection Act of 1982, as amended, authorizes 
imposition of interest charges and collection of debts by withholding 
funds due the debtor.

VI. Executive Order 12866

    This rule is being treated as a ``significant regulatory action,'' 
within the meaning of Executive Order 12866, because it is economically 
significant, as defined in section 3(f)(1) of E.O. 12866. The payment 
of the benefits provided for by the EEOICPA, through the program 
administered pursuant to this regulatory action will have an annual 
effect on the economy of $100 million or more. However, the rule will 
not adversely affect in a material way the economy, a sector of the 
economy, productivity, jobs, the environment, public health or safety, 
or State, local, or tribal governments or communities, as required by 
section 3(f)(1) of E.O. 12866. The proposed rule is also a 
``significant regulatory action'' because it meets the criteria of 
Section 3(f)(4) of that Order in that it raises novel or legal policy 
issues arising out of the legal mandate established by the EEOICPA.
    Based upon the factors and assumptions set forth below, DOL's 
estimate of the aggregate cost of benefits and administrative expenses 
of this regulatory action implementing the EEOICPA is, in millions of 
dollars (estimates for FY2003, FY2004 and FY2005 are preliminary and 
will be reviewed during the budget formulation process):

[[Page 28960]]



----------------------------------------------------------------------------------------------------------------
                                                                 FY2001    FY2002    FY2003    FY2004    FY2005
----------------------------------------------------------------------------------------------------------------
Admin.........................................................       $50      $136      $100       $55       $50
Benefits......................................................       358       597       477       253       222
----------------------------------------------------------------------------------------------------------------

    The Department's estimate of the benefits to be paid pursuant to 
the EEOICPA and of its administrative costs of providing those benefits 
is based on data collected from other Federal agencies, assumptions 
regarding the incidence of cancer, beryllium disease and silicosis in 
the covered population, life expectancy tables, and its experience in 
estimating administrative and medical costs of workers' compensation 
programs. Specifically, benefit estimates for cancer claims are based 
on figures provided by DOE concerning the number of DOE/contractor 
employees, known cancer incidence and survival rates in the general 
population obtained from the National Cancer Institute. Based on the 
number of claims likely to be accepted, the cost of lump-sum payments 
to these claimants is relatively easily determined. These benefit 
estimates further reflect contemplated medical costs of $1500 per year 
for 90% of the covered claimants, while the remaining 10% incur 
$125,000 medical costs for the year because they are undergoing 
intensive in-hospital medical treatment.
    Benefits estimates for beryllium exposure are based on known 
incidence rates, known numbers of claimants with beryllium disease, 
exposed population figures (all of which were obtained from DOE), and 
medical costs of $3000 per year for beryllium sensitivity, $4000 per 
year for mild chronic beryllium disease, and $9000 per year for more 
severe chronic beryllium disease. Benefit estimates for silicosis are 
based upon figures obtained from DOE concerning the number of exposed 
employees and the expected incidence of silicosis, and medical costs of 
$4000 per year. Benefit estimates for the claims based upon receipt of 
an award by uranium employees pursuant to Sec. 5 of the Radiation 
Exposure Compensation Act are based on figures for the number of claims 
provided by DOJ, and $4000 per year in medical costs.
    Because the statute provides benefits for covered workers and their 
survivors who were exposed to radiation, beryllium and silica during a 
period of almost 60 years, an assumption was made that DOL would 
receive thousands of claims in the initial few years after the 
effective date of the statute, and that the number of claims would 
decrease substantially after the first few years. Administrative cost 
estimates were developed based upon DOL's experience in administering 
other workers' compensation programs, using calculations of the number 
of incoming claims and forecasting the necessary full-time equivalents 
and other resources necessary to efficiently administer the program.
    No more extensive economic impact analysis is necessary because the 
regulatory action only addresses the transfer of funds from the federal 
government to individuals who qualify under the EEOICPA and to 
providers of medical services in that program. This regulatory action 
has no affect on the functioning of the economy and private markets, on 
the health and safety of the general population, or on the natural 
environment. In addition, because this regulation implements a 
statutory mandate, there are no feasible alternatives to this 
regulatory action. Finally, to the extent that policy choices have been 
made in interpreting the statutory terms, those choices have no 
significant impact on the cost of this regulatory action. Such policy 
choices may affect who is entitled to receive benefits (as in the case 
of potential survivors), but will not have a significant impact on the 
number of eligible recipients or the level of benefits to which they 
are entitled.
    OMB has reviewed the rule for consistency with the President's 
priorities and the principles set forth in E.O. 12866.

VII. Small Business Regulatory Enforcement Fairness Act

    As required by Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the Department 
will report to Congress promulgation of this rule prior to its 
effective date. The report will state that the Department has concluded 
that this rule is a ``major rule'' because it will likely result in an 
annual effect on the economy of $100 million or more.

VIII. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private 
sector, ``other than to the extent that such regulations incorporate 
requirements specifically set forth in law.'' For purposes of the 
Unfunded Mandates Reform Act, this rule does not include any Federal 
mandate that may result in increased annual expenditures in excess of 
$100 million by State, local or tribal governments in the aggregate, or 
by the private sector.

IX. Regulatory Flexibility Act

    The Department believes that this interim final rule will have ``no 
significant economic impact upon a substantial number of small 
entities'' within the meaning of the RFA. The provisions of this rule 
applying cost control measures to payments for medical expenses are the 
only ones that may have a monetary effect on small businesses. That 
effect will not be significant for a substantial number of those 
businesses, however, for no single business will bill a significant 
amount to OWCP for EEOICPA-related services, and the effect on those 
bills which are submitted, while a worthwhile savings for the 
Government in the aggregate, will be not be significant for individual 
businesses affected.
    The cost containment provisions are: (1) a set schedule of maximum 
allowable fees for professional medical services; (2) a set schedule 
for payment of pharmacy bills; and (3) a prospective payment system for 
hospital inpatient services. The methodologies used for the first two 
of these provisions are explained in the text of the preamble to this 
interim final rule, which essentially adopts payment systems that are 
commonplace in the industry. Their adoption by OWCP for use in 
connection with its administration of the EEOICPA program will 
therefore result in efficiencies for the Government and providers. The 
Government will benefit because OWCP did not develop new cost 
containment measures, but rather adopted existing and well-recognized 
measures that were already in place. The providers benefit because 
submitting a bill and receiving a payment will be almost the same as 
submitting it to Medicare, a program with which they are already 
familiar and have existing systems in place for billing--they will not 
have to incur unnecessary administrative costs to learn a new process 
because the EEOICPA bill process will not be readily distinguishable 
from the Medicare process. Similarly, pharmacies are used to billing 
through clearing houses and having their charges subject to limits by

[[Page 28961]]

private insurers. By adopting the uniform billing statement and a 
familiar cost control methodology, OWCP has kept close to the billing 
environment with which pharmacies are already familiar. The methods 
chosen, therefore, represent systems familiar to the providers. The 
third of these three provisions will not have an effect on a 
substantial number of ``small entities'' under SBA standards, since 
most hospitals providing services for EEOICPA-covered conditions will 
have annual receipts that exceed the set maximum.
    The implementation of these cost containment methods will have no 
significant effect on any single medical professional or pharmacy since 
they are already used by Medicare, CHAMPUS, and the Departments of 
Labor and Veterans Affairs, among Government entities, and by private 
insurance carriers. In actual terms, the amount by which these provider 
bills might be reduced will not have a significant impact on any one 
small entity since these charges are currently being processed by other 
payers applying similar cost containment provisions. The costs to 
providers whose charges may be reduced also will be relatively small 
because EEOICPA bills simply will not represent a large share of any 
single provider's total business. Since the small universe of potential 
claimants is spread across the United States and this bill processing 
system will cover only those employees who have sustained a covered 
illness and require medical treatment on or after July 31, 2001 (out of 
the projected total of 23,201 claims the Department estimates it will 
accept over the next five years, only about 14,000 of these will 
involve payment for medical treatment), the number of bills submitted 
by any one small entity which may be subject to these provisions is 
likely to be very small. Therefore, the ``cost'' of this rule to any 
one pharmacy or medical professional will be negligible. On the other 
hand, OWCP will see substantial aggregate cost savings that will 
benefit both OWCP (by strengthening the integrity of the program) and 
the taxpayers to whom the ultimate costs of the program are eventually 
charged through appropriations.
    The Assistant Secretary for Employment Standards has certified to 
the Chief Counsel for Advocacy of the Small Business Administration 
that this rule will not have a significant impact on a substantial 
number of small entities. The factual basis for this certification has 
been provided above. Accordingly, no regulatory impact analysis is 
required.

X. Executive Order 12988 (Civil Justice)

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12988, Civil Justice Reform and will not unduly burden 
the Federal court system. While the EEOICPA does not provide any 
specific procedures claimants must follow in order to seek review of 
decisions on their claims, substantial numbers of claimants will likely 
seek review of adverse decisions in the United States district courts 
pursuant to the Administrative Procedure Act. This regulation should 
minimize the burden placed upon the courts by litigation seeking to 
challenge decisions under EEOICPA by providing claimants an opportunity 
to seek administrative review of adverse decisions and by providing a 
clear legal standard for affected conduct. It has been reviewed 
carefully to eliminate drafting errors and ambiguities.

XI. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' The rule does not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

XII. Executive Order 13045 (Protection of Children From 
Environmental, Health Risks and Safety Risks)

    In accordance with Executive Order 13045, OWCP has evaluated the 
environmental health and safety effects of this rule on children. The 
agency has determined that the final rule will have no effect on 
children.

XIII. Submission to Congress and the General Accounting Office

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act, the Department will submit to each House of the Congress 
and to the Comptroller General a report regarding the issuance of this 
final rule prior to the effective date set forth at the outset of this 
notice. The report will note that this rule constitutes a ``major 
rule'' as defined by 5 U.S.C. 804(2).

XIV. Catalog of Federal Domestic Assistance Number

    This program is not listed in the Catalog of Federal Domestic 
Assistance.

List of Subjects

20 CFR Part 1

    Administrative practice and procedure, Claims, Government 
Employees, Labor, Workers' Compensation.

20 CFR Part 30

    Administrative practice and procedure, Cancer, Claims, Kidney 
Diseases, Leukemia, Lung Diseases, Miners, Radioactive Materials, Tort 
claims, Underground mining, Uranium, Workers' Compensation.

Text of the Rule

    For the reasons set forth in the preamble, 20 CFR Chapter 1 is 
amended as follows:

Subchapter A--Organization and Procedures

    1. Part 1 is revised to read as follows:

PART 1--PERFORMANCE OF FUNCTIONS UNDER THIS CHAPTER

Sec.
1.1   Under what authority was the Office of Workers' Compensation 
Programs established?
1.2   What functions are assigned to OWCP?
1.3   What rules are contained in this chapter?
1.4   Where are other rules concerning OWCP functions found?
1.5   When was the former Bureau of Employees' Compensation 
abolished?
1.6   How were many of OWCP's current functions administered in the 
past?

    Authority: 5 U.S.C. 301, 8145, 8149 (Reorganization Plan No. 6 
of 1950, 15 FR 3174, 64 Stat. 1263); Executive Order 13179, 65 FR 
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 13-
71, 36 FR 8155; Employment Standards Order No. 2-74, 39 FR 34722.


Sec. 1.1  Under what authority was the Office of Workers' Compensation 
Programs established?

    The Assistant Secretary of Labor for Employment Standards, by 
authority vested in him by the Secretary of Labor in Secretary's Order 
No. 13-71, 36 FR 8755, established in the Employment Standards 
Administration an Office of Workers' Compensation Programs (OWCP) by 
Employment Standards Order No. 2-74, 39 FR 34722. The Assistant 
Secretary subsequently designated as the head thereof a Deputy 
Assistant Secretary for Workers' Compensation Programs who, under the 
general supervision of the Assistant Secretary, administers the 
programs assigned to that Office by the Assistant Secretary.

[[Page 28962]]

Sec. 1.2  What functions are assigned to OWCP?

    The Assistant Secretary has delegated authority and assigned 
responsibility to the Deputy Assistant Secretary for Workers' 
Compensation Programs for the Department of Labor's programs under the 
following statutes:
    (a) The Federal Employees' Compensation Act, as amended and 
extended (5 U.S.C. 8101 et seq.), except 5 U.S.C. 8149 as it pertains 
to the Employees' Compensation Appeals Board.
    (b) The War Hazards Compensation Act (42 U.S.C. 1701 et seq.).
    (c) The War Claims Act (50 U.S.C. App. 2003).
    (d) The Energy Employees Occupational Illness Compensation Program 
Act, Title XXXVI of the Floyd D. Spence National Defense Authorization 
Act for Fiscal Year 2001, Pub. L. 106-398 (114 Stat. 1654, 1654A-1231), 
except activities, pursuant to Executive Order 13179 (``Providing 
Compensation to America's Nuclear Weapons Workers'') of December 7, 
2000, assigned to the Secretary of Health and Human Services, the 
Secretary of Energy and the Attorney General.
    (e) The Longshore and Harbor Workers' Compensation Act, as amended 
and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with 
respect to administrative law judges in the Office of Administrative 
Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review 
Board; and activities, pursuant to 33 U.S.C. 941, assigned to the 
Assistant Secretary for Occupational Safety and Health.
    (f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 et 
seq.).


Sec. 1.3  What rules are contained in this chapter?

    The rules in this chapter are those governing the OWCP functions 
under the Federal Employees' Compensation Act, the War Hazards 
Compensation Act, the War Claims Act and the Energy Employees 
Occupational Illness Compensation Program Act.


Sec. 1.4  Where are other rules concerning OWCP functions found?

    (a) The rules of the OWCP governing its functions under the 
Longshore and Harbor Workers' Compensation Act and its extensions are 
set forth in subchapter A of chapter VI of this title.
    (b) The rules of the OWCP governing its functions under the Black 
Lung Benefits Act program are set forth in subchapter B of chapter VI 
of this title.
    (c) The rules and regulations of the Employees' Compensation 
Appeals Board are set forth in chapter IV of this title.
    (d) The rules and regulations of the Benefits Review Board are set 
forth in Chapter VII of this title.


Sec. 1.5  When was the former Bureau of Employees' Compensation 
abolished?

    By Secretary of Labor's Order issued September 23, 1974, 39 FR 
34723, issued concurrently with Employment Standards Order 2-74, 39 FR 
34722, the Secretary revoked the prior Secretary's Order No. 18-67, 32 
FR 12979, which had delegated authority and assigned responsibility for 
the various workers' compensation programs enumerated in Sec. 1.2, 
except the Black Lung Benefits program and the Energy Employees 
Occupational Illness Compensation program not then in existence, to the 
Director of the former Bureau of Employees' Compensation.


Sec. 1.6  How were many of OWCP's current functions administered in the 
past?

    (a) Administration of the Federal Employees' Compensation Act and 
the Longshore and Harbor Workers' Compensation Act was initially vested 
in an independent establishment known as the U.S. Employees' 
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR 
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the 
Commission was abolished and its functions were transferred to the 
Federal Security Agency to be performed by a newly created Bureau of 
Employees' Compensation within such Agency. By Reorganization Plan No. 
19 of 1950 (15 FR 3178, 64 Stat. 1263) said Bureau was transferred to 
the Department of Labor (DOL), and the authority formerly vested in the 
Administrator, Federal Security Agency, was vested in the Secretary of 
Labor. By Reorganization Plan No. 6 of 1950 (15 FR 3174, 64 Stat. 
1263), the Secretary of Labor was authorized to make from time to time 
such provisions as he shall deem appropriate, authorizing the 
performance of any of his functions by any other officer, agency, or 
employee of the DOL.
    (b) In 1972, two separate organizational units were established 
within the Bureau: an Office of Workmen's Compensation Programs (37 FR 
20533) and an Office of Federal Employees' Compensation (37 FR 22979). 
In 1974, these two units were abolished and one organizational unit, 
the Office of Workers' Compensation Programs (OWCP), was established in 
lieu of the Bureau of Employees' Compensation (39 FR 34722).

    2. Subchapter C consisting of Part 30 is added to read as follows:

Subchapter C--Energy Employees Occupational Illness Compensation 
Program Act

PART 30--CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES 
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT

Subpart A--General Provisions

Introduction

Sec.
30.0   What are the provisions of the EEOICPA, in general?
30.1   What rules govern the administration of the EEOICPA and this 
chapter?
30.2   In general, how have the tasks associated with the 
administration of the EEOICPA claims process been assigned?
30.3   What do these regulations contain?

Definitions

30.5   What are the definitions used in this part?

Information in Program Records

30.10   Are all OWCP records relating to claims filed under the 
EEOICPA considered confidential?
30.11   Who maintains custody and control of claim records?
30.12   What process is used by a person who wants to obtain copies 
of or amend EEOICPA claim records?

Rights and Penalties

30.15   May EEOICPA benefits be assigned or transferred?
30.16   What penalties may be imposed in connection with a claim 
under the EEOICPA?
30.17   Is a beneficiary who defrauds the government in connection 
with a claim for benefits still entitled to those benefits?
Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

Claims for Occupational Illness--Employee or Survivor's Actions

30.100   In general, how does an employee file for benefits?
30.101   In general, how is a survivor's claim filed?
30.102   How does a claimant make sure the OWCP has the evidence 
necessary to process the claim?

Claims for Occupational Illness--Actions of DOE

30.105   What must DOE do after an employee files a claim for an 
occupational illness?
30.106   What should DOE do when an employee with a claim for an 
occupational disease dies?

Evidence and Burden of Proof

30.110   Who is entitled to compensation under the Act?
30.111   What is the claimant's responsibility with respect to 
burden of proof, production of documents, presumptions, and 
affidavits?

[[Page 28963]]

30.112   What are the requirements for written medical 
documentation, contemporaneous records, and other records or 
documents?

Special Procedures for Certain Cancer Claims

30.115   What does OWCP do once it determines that a covered 
employee who is not a member of the Special Exposure Cohort (or a 
survivor of such an employee) has established that he or she 
contracted cancer under Sec. 30.211(b)?
Subpart C--Eligibility Criteria

General Provisions

30.200   What is the scope of this subpart?

Eligibility Criteria for Claims Relating to Covered Beryllium Illness

30.205   What are the criteria for eligibility for benefits relating 
to covered beryllium illness?
30.206   How does a claimant prove that the employee was a ``covered 
beryllium employee'' exposed to beryllium dust, particles or vapor 
in the performance of duty?
30.207   How does a claimant prove diagnosis of a covered beryllium 
disease?

Eligibility Criteria for Claims Relating to Cancer

30.210   What are the criteria for eligibility for benefits relating 
to cancer?
30.211   How does a claimant establish that the employee has or had 
contracted cancer?
30.212   How does a claimant establish that the cancer was at least 
as likely as not related to the employment at the DOE facility or 
the atomic weapons employer facility?
30.213   How does a claimant establish that the employee is a member 
of the Special Exposure Cohort?
30.214   How does a claimant establish that the employee has been 
diagnosed with cancer or has sustained a consequential injury, 
illness or disease?

Eligibility Criteria for Chronic Silicosis

30.215   What are the criteria for eligibility for benefits relating 
to chronic silicosis?
30.216   How does a claimant prove exposure to silica in the 
performance of duty?
30.217   How does a claimant prove the covered employee's diagnosis 
of chronic silicosis?

Eligibility of Certain Uranium Employees

30.220   What are the criteria for eligibility for benefits for 
certain uranium employees?
Subpart D--Adjudicatory Process
30.300   What process will OWCP use to decide claims and to provide 
for administrative review of those decisions?

Recommended Decisions on Claims

30.305   How does OWCP determine entitlement to EEOICPA 
compensation?
30.306   What does the recommended decision contain?
30.307   To whom is the recommended decision sent?

Hearings and Final Decisions on Claims

30.310   How does a claimant object to a recommended decision on a 
claim?
30.311   What action will the FAB take if the claimant does not file 
objections to the recommended decision?
30.312   What action will the FAB take if the claimant files 
objections but does not request a hearing?
30.313   How is a review of the written record conducted?
30.314   How is a hearing conducted?
30.315   May a claimant postpone a hearing?
30.316   How does the FAB issue a final decision on a claim?
30.317   Can the FAB request a further response from the claimant or 
remand a claim to the district office?
30.318   Can the FAB review a determination by HHS with respect to 
an employee's dose reconstruction?
30.319   May a claimant request reconsideration of a decision to the 
FAB?

Modification

30.320   Can a final decision be modified once the period for 
requesting reconsideration has expired?
Subpart E--Medical and Related Benefits

Medical Treatment and Related Issues

30.400   What are the basic rules for obtaining medical care?
30.401   What are the special rules for the services of 
chiropractors?
30.402   What are the special rules for the services of clinical 
psychologists?
30.403   Will OWCP pay for the services of an attendant?
30.404   Will OWCP pay for transportation to obtain medical 
treatment?
30.405   After selecting a treating physician, may an employee 
choose to be treated by another physician instead?
30.406   Are there any exceptions to these procedures for obtaining 
medical care?

Directed Medical Examinations

30.410   Can OWCP require an employee to be examined by another 
physician?
30.411   What happens if the opinion of the physician selected by 
OWCP differs from the opinion of the physician selected by the 
employee?
30.412   Who pays for second opinion and referee examinations?

Medical Reports

30.415   What are the requirements for medical reports?
30.416   How and when should the medical report be submitted?
30.417   What additional medical information may OWCP require to 
support continuing payment of benefits?

Medical Bills

30.420   How are medical bills submitted?
30.421   What are the time frames for submitting bills?
30.422   If OWCP reimburses an employee only partially for a medical 
expense, must the provider refund the balance of the amount paid to 
the employee?
Subpart F--Survivors; Payments and Offsets; Overpayments

Survivors

30.500   What special statutory definitions apply to survivors under 
the EEOICPA?
30.501   How will OWCP apply that order of precedence to determine 
what survivors are entitled to receive under the EEOICPA?
30.502   When is entitlement for survivors determined for purposes 
of EEOICPA?

Payment of Claims and Offset for Certain Payments

30.505   What are the procedures for payment of claims?
30.506   What compensation will be provided to claimants who only 
establish beryllium sensitivity?
30.507   What is beryllium sensitivity monitoring?

Overpayments

30.510   How does OWCP notify an individual of a payment made on a 
claim?
30.511   What is an ``overpayment'' for purposes of the EEOICPA?
30.512   How does OWCP determine that a beneficiary owes a debt as 
the result of the creation of an overpayment?
30.513   How are overpayments collected?
Subpart G--Special Provisions

Representation

30.600   May a claimant designate a representative?
30.601   Who may serve as a representative?
30.602   Who is responsible for paying the representative's fee?

Third Party Liability

30.605   What rights does the United States have upon payment of 
compensation under the EEOICPA?
30.606   Under what circumstances must a recovery of money or other 
property in connection with an illness for which benefits are 
payable under the EEOICPA be reported to OWCP?
30.607   How is a structured settlement (that is, a settlement 
providing for receipt of funds over a specified period of time) 
treated for purposes of reporting the recovery?
30.608   How does the United States calculate the amount to which it 
is subrogated?
30.609   Is a settlement or judgment received as a result of 
allegations of medical malpractice in treating an illness covered by 
the EEOICPA a recovery that must be reported to OWCP?
30.610   Are payments to an employee or eligible surviving 
beneficiary as a result of an insurance policy which the employee or 
eligible surviving beneficiary has purchased a recovery that must be 
reported to OWCP?
30.611   If a settlement or judgment is received for more than one 
medical condition, can the amount paid on a single EEOICPA claim be 
attributed to different conditions for purposes of calculating the 
amount to which the United States is subrogated?

[[Page 28964]]

Election of Remedy Against Beryllium Vendors and Atomic Weapons 
Employers

30.615   Can a claimant receive benefits under the EEOICPA if he or 
she filed a tort suit against either a beryllium vendor or an atomic 
weapons employer on or prior to October 30, 2000?
30.616   Can a claimant receive benefits under the EEOICPA if he or 
she filed a tort suit against either a beryllium vendor or an atomic 
weapons employer after October 30, 2000?
30.617   How will OWCP ascertain whether a claimant filed a tort 
suit against either a beryllium vendor or an atomic weapons employer 
and whether such claimant is entitled to benefits under the EEOICPA?
Subpart H--Information for Medical Providers

Medical Records and Bills

30.700   What kind of medical records must providers keep?
30.701   How are medical bills to be submitted?
30.702   How should an employee prepare and submit requests for 
reimbursement for medical expenses, transportation costs, loss of 
wages, and incidental expenses?
30.703   What are the time limitations on OWCP's payment of bills?

Medical Fee Schedule

30.705   What services are covered by the OWCP fee schedule?
30.706   How are the maximum fees defined?
30.707   How are payments for particular services calculated?
30.708   Does the fee schedule apply to every kind of procedure?
30.709   How are payments for medicinal drugs determined?
30.710   How are payments for inpatient medical services determined?
30.711   When and how are fees reduced?
30.712   If OWCP reduces a fee, may a provider request 
reconsideration of the reduction?
30.713   If OWCP reduces a fee, may a provider bill the employee for 
the balance?

Exclusion of Providers

30.715   What are the grounds for excluding a provider for payment 
under this part?
30.716   What will cause OWCP to automatically exclude a physician 
or other provider of medical services and supplies?
30.717   When are OWCP's exclusion procedures initiated?
30.718   How is a provider notified of OWCP's intent to exclude him 
or her?
30.719   What requirements must the provider's reply and OWCP's 
decision meet?
30.720   How can an excluded provider request a hearing?
30.721   How are hearings assigned and scheduled?
30.722   How are advisory opinions obtained?
30.723   How will the administrative law judge conduct the hearing 
and issue the recommended decision?
30.724   How can a party request review by OWCP of the 
administrative law judge's recommended decision?
30.725   What are the effects of non-automatic exclusion?
30.726   How can an excluded provider be reinstated?

    Authority: 5 U.S.C. 301; Executive Order 13179, 65 FR 77487, 3 
CFR, 2000 Comp., p. 321.

Subpart A--General Provisions

Introduction


Sec. 30.0  What are the provisions of the EEOICPA, in general?

    The Energy Employees Occupational Illness Compensation Program Act 
(EEOICPA), Pub. L. 106-398 (114 Stat. 1654, 1654A-1231), provides for 
the payment of compensation benefits to covered employees and, where 
applicable, survivors of such employees, of the United States 
Department of Energy, its predecessor agencies and certain of its 
contractors and subcontractors. It also provides for the payment of 
compensation to certain persons already found eligible for benefits 
under section 5 of the Radiation Exposure Compensation Act (42 U.S.C. 
2210 note) and, where applicable, survivors of such employees. The 
regulations in this part describe the rules for filing, processing, and 
paying claims for benefits under the EEOICPA.
    (a) The EEOICPA provides for the payment of either monetary 
compensation for the disability of a covered employee due to an 
occupational illness or for monitoring for beryllium sensitivity, as 
well as for medical and related benefits for such illness.
    (b) All types of benefits and conditions of eligibility listed in 
this section are subject to the provisions of the EEOICPA and of this 
part.


Sec. 30.1  What rules govern the administration of the EEOICPA and this 
chapter?

    In accordance with the EEOICPA and E.O. 13179, the Secretary of 
Labor has delegated the primary responsibility for administering the 
EEOICPA, except for those activities assigned to the Secretary of 
Health and Human Services, the Secretary of Energy and the Attorney 
General, to the Assistant Secretary for Employment Standards. The 
Assistant Secretary, in turn, has delegated the responsibility for 
administering the EEOICPA to the Deputy Assistant Secretary for 
Workers' Compensation Programs. Except as otherwise provided by law, 
the Deputy Assistant Secretary for Workers' Compensation Programs and 
his or her designees have the exclusive authority to administer, 
interpret and enforce the provisions of the EEOICPA.


Sec. 30.2  In general, how have the tasks associated with the 
administration of the EEOICPA claims process been assigned?

    (a) In E.O. 13179, the President assigned various tasks associated 
with the administration of the EEOICPA claims process among the 
Secretaries of Labor, Health and Human Services and Energy, and the 
Attorney General. In light of the fact that the Secretary of Labor has 
been assigned primary responsibility for administering the EEOICPA, 
almost the entire claims process is within the exclusive control of 
OWCP. This means that claimants file their claims with OWCP, and OWCP 
is responsible for granting or denying compensation under the Act (see 
Secs. 30.100, 30.101, and 30.505 through 30.513). OWCP also provides an 
administrative review process for claimants who disagree with its 
recommended and final adverse decisions (see Secs. 30.300 through 
30.320).
    (b) However, HHS has exclusive control of a portion of the claims 
process involving certain cancer claims, and is therefore responsible 
for providing reconstructed doses for these claims (see Sec. 30.115). 
HHS is also responsible for promulgating regulations establishing the 
guidelines that will be used by OWCP to assess the likelihood that an 
individual with cancer sustained the cancer in the performance of duty 
(see Sec. 30.210). DOE and DOJ are responsible for, among other tasks, 
notifying potential claimants and submitting evidence that OWCP deems 
necessary for its adjudication of claims under the EEOICPA (see 
Secs. 30.105, 30.106, and 30.111).


Sec. 30.3  What do these regulations contain?

    This part 30 sets forth the regulations governing administration of 
all claims filed under the EEOICPA, except to the extent specified in 
certain provisions. Its provisions are intended to assist persons 
seeking benefits under the EEOICPA, as well as personnel in the various 
federal agencies and the DOL who process claims filed under the EEOICPA 
or who perform administrative functions with respect to the EEOICPA. 
The various subparts of this part contain the following:
    (a) Subpart A: the general statutory and administrative framework 
for processing claims under the EEOICPA. It contains a statement of 
purpose and scope, together with definitions of terms, information 
regarding the disclosure of OWCP records, and a description of rights 
and penalties

[[Page 28965]]

under the EEOICPA, including convictions for fraud.
    (b) Subpart B: the rules for filing claims for benefits under the 
EEOICPA. It also addresses general standards regarding necessary 
evidence and the burden of proof, descriptions of basic forms and 
special procedures for certain cancer claims.
    (c) Subpart C: the eligibility criteria for conditions covered by 
the EEOICPA.
    (d) Subpart D: the rules governing the adjudication process leading 
from recommended to final decisions made on claims filed under the 
EEOICPA. It also describes the OWCP hearing and modification processes.
    (e) Subpart E: the rules governing medical care, second opinion and 
referee medical examinations directed by OWCP, and medical reports and 
records in general. It also addresses the kinds of treatment that may 
be authorized and how medical bills are paid.
    (f) Subpart F: the rules relating to the payment of monetary 
compensation. It includes the provisions for identifying and processing 
overpayments of compensation.
    (g) Subpart G: the rules concerning legal representation, 
subrogation of the United States, and the election of remedies against 
beryllium vendors and atomic weapons employers.
    (h) Subpart H: information for medical providers. It includes rules 
for medical reports, medical bills, and the OWCP medical fee schedule, 
as well as the provisions for exclusion of medical providers.

Definitions


Sec. 30.5  What are the definitions used in this part?

    (a) Act or EEOICPA means the Energy Employees Occupational Illness 
Compensation Program Act of 2000, Public Law 106-398.
    (b) Atomic weapon means any device utilizing atomic energy, 
exclusive of the means for transporting or propelling the device (where 
such means is a separable and divisible part of the device), the 
principle purpose of which is for use as, or for development of, a 
weapon, a weapon prototype, or a weapon test device.
    (c) Atomic weapons employee means an individual employed by an 
atomic weapons employer during a period when the employer was 
processing or producing, for the use by the United States, material 
that emitted radiation and was used in the production of an atomic 
weapon, excluding uranium mining and milling.
    (d) Atomic weapons employer means any entity, other than the United 
States, that:
    (1) Processed or produced, for use by the United States, material 
that emitted radiation and was used in the production of an atomic 
weapon, excluding uranium mining and milling; and
    (2) Is designated by the Secretary of Energy as an atomic weapons 
employer for purposes of the compensation program.
    (e) Atomic weapons employer facility means a facility, owned by an 
atomic weapons employer, that is or was used to process or produce, for 
use by the United States, material that emitted radiation and was used 
in the production of an atomic weapon, excluding uranium mining or 
milling.
    (f) Attorney General means the Attorney General of the United 
States or the United States Department of Justice (DOJ).
    (g) Benefit or Compensation means the money the Department pays to 
or on behalf of a covered employee from the Energy Employees 
Occupational Illness Compensation Fund. However, the term 
``compensation'' used in section 3647(b) of the EEOICPA (with respect 
to entitlement to only one payment of compensation) means only the 
payments specified in section 3628(a)(1) ($150,000 lump sum payment), 
and in section 3630(a) ($50,000 payment to beneficiaries under section 
5 of the RECA). Except as used in section 3647(b), these two terms also 
include any other amounts paid out of the Fund for such things as 
medical treatment, monitoring, examinations, services, appliances and 
supplies as well as for transportation and expenses incident to the 
securing of such medical treatment, monitoring, examinations, services, 
appliances, and supplies.
    (h) Beryllium sensitization or sensitivity means that the 
individual has an abnormal beryllium lymphocyte proliferation test 
(LPT) on either blood or lung lavage cells.
    (i) Beryllium vendor includes any of the facilities designated as 
such in the list periodically published in the Federal Register by the 
DOE.
    (j) Chronic silicosis means a non-malignant lung disease if :
    (1) The initial occupational exposure to silica dust preceded the 
onset of silicosis by at least 10 years; and
    (2) A written diagnosis of silicosis is made by a medical doctor 
and is accompanied by:
    (i) A chest radiograph, interpreted by an individual certified by 
the National Institute for Occupational Safety and Health as a B 
reader, classifying the existence of pneumoconioses of category 1/1 or 
higher;
    (ii) Results from a computer assisted tomograph or other imaging 
technique that are consistent with silicosis; or
    (iii) Lung biopsy findings consistent with silicosis.
    (k) Claim means a written assertion of an individual's entitlement 
to benefits under the EEOICPA, submitted in a manner authorized by this 
part.
    (l) Claimant means the individual who is alleged to satisfy the 
criteria for compensation under the Act.
    (m) Compensation fund or fund means the fund established on the 
books of the Treasury for payment of benefits and compensation under 
the Energy Employees Occupational Illness Compensation Program Act.
    (n) Contemporaneous record means any document created at or around 
the time of the event that is recorded in the document.
    (o) Covered beryllium illness means any of the following:
    (1) Beryllium sensitivity as established by an abnormal LPT 
performed on either blood or lung lavage cells.
    (2) Established chronic beryllium disease (see Sec. 30.207(c)).
    (3) Any injury, illness, impairment, or disability sustained as a 
consequence of a covered beryllium illness referred to in paragraph 
(o)(1) or (2) of this section.
    (p) Covered employee means a covered beryllium employee (see 
Sec. 30.205), a covered employee with cancer (see Sec. 30.210), a 
covered employee with chronic silicosis (see Sec. 30.215), or a covered 
uranium employee (see paragraph (q) of this section).
    (q) Covered uranium employee means an employee who has been 
informed by the Department of Justice that he or she has been 
determined to be entitled to compensation under section 5 of the 
Radiation Exposure Compensation Act, as amended, (42 U.S.C. 2210 note) 
for a claim made under that Act.
    (r) Current or former employee as defined in 5 U.S.C. 8101(1) as 
used in Sec. 30.205 means an individual who fits within one of the 
following listed groups:
    (1) A civil officer or employee in any branch of the Government of 
the United States, including an officer or employee of an 
instrumentality wholly owned by the United States;
    (2) An individual rendering personal service to the United States 
similar to the service of a civil officer or employee of the United 
States, without pay or for nominal pay, when a statute authorizes the 
acceptance or use of the service, or

[[Page 28966]]

authorizes payment of travel or other expenses of the individual;
    (3) An individual, other than an independent contractor or 
individual employed by an independent contractor, employed on the 
Menominee Indian Reservation in Wisconsin in operations conducted under 
a statute relating to tribal timber and logging operations on that 
reservation;
    (4) An individual appointed to a position on the office staff of a 
former President; or
    (5) An individual selected and serving as a Federal petit or grand 
juror.
    (s) Department (DOL) means the United States Department of Labor.
    (t) Department of Energy (DOE) includes the predecessor agencies of 
the DOE, including the Manhattan Engineering District.
    (u) Department of Energy contractor employee means any of the 
following:
    (1) An individual who is or was in residence at a DOE facility as a 
researcher for one or more periods aggregating at least 24 months.
    (2) An individual who is or was employed at a DOE facility by:
    (i) An entity that contracted with the DOE to provide management 
and operating, management and integration, or environmental remediation 
at the facility; or
    (ii) A contractor or subcontractor that provided services, 
including construction and maintenance, at the facility.
    (v) Department of Energy facility means any building, structure, or 
premise, including the grounds upon which such building, structure, or 
premise is located:
    (1) In which operations are, or have been, conducted by, or on 
behalf of, the DOE (except for buildings, structures, premises, 
grounds, or operations covered by Executive Order 12344, dated February 
1, 1982, pertaining to the Naval Nuclear Propulsion Program); and
    (2) With regard to which the DOE has or had:
    (i) A proprietary interest; or
    (ii) Entered into a contract with an entity to provide management 
and operation, management and integration, environmental remediation 
services, construction, or maintenance services; and
    (3) Is designated by the Secretary of Energy as an atomic weapons 
employer for purposes of this program.
    (w) Disability means, for purposes of determining entitlement to 
payment under EEOICPA sections 3628(a)(1), having been determined by 
OWCP to have or have had established chronic beryllium disease, cancer, 
or chronic silicosis.
    (x) Eligible surviving beneficiary means any individual who is 
entitled under section 3628(e) of the Act to receive a payment on 
behalf of a deceased covered employee.
    (y) Employee means either a current or former employee.
    (z) Occupational illness means a covered beryllium illness, cancer 
sustained in the performance of duty as defined in Sec. 30.210(b), 
specified cancer, or chronic silicosis.
    (aa) OWCP means the Office of Workers' Compensation Programs, 
United States Department of Labor.
    (bb) Physician includes surgeons, podiatrists, dentists, clinical 
psychologists, optometrists, chiropractors, and osteopathic 
practitioners within the scope of their practice as defined by State 
law. The term ``physician'' includes chiropractors only to the extent 
that their reimbursable services are limited to treatment consisting of 
manual manipulation of the spine to correct a subluxation as 
demonstrated by x-ray to exist.
    (cc) Qualified physician means any physician who has not been 
excluded under the provisions of subpart H of this part. Except as 
otherwise provided by regulation, a qualified physician shall be deemed 
to be designated or approved by OWCP.
    (dd) Specified cancer (as defined in section 4(b) of the Radiation 
Exposure Compensation Act Amendments of 2000 (42 U.S.C. 2210 note) and 
the Act) means:
    (1) Leukemia (other than chronic lymphocytic leukemia) provided 
that initial exposure occurred after the age of 20 and the onset of the 
disease was at least 2 years after first exposure;
    (2) Lung cancer (other than in situ lung cancer that is discovered 
during or after a post-mortem exam);
    (3) The following diseases, provided onset was at least 5 years 
after first exposure:
    (i) Multiple myeloma;
    (ii) Lymphomas (other than Hodgkin's disease);
    (4) Primary cancer of the:
    (i) Thyroid;
    (ii) Male or female breast;
    (iii) Esophagus;
    (iv) Stomach;
    (v) Pharynx;
    (vi) Small intestine;
    (vii) Pancreas;
    (viii) Bile ducts;
    (ix) Gall bladder;
    (x) Salivary gland;
    (xi) Urinary bladder;
    (xii) Brain;
    (xiii) Colon;
    (xiv) Ovary; or
    (xv) Liver (except if cirrhosis or hepatitis B is indicated); and
    (5) Bone cancer.
    (6) The specified diseases designated in paragraphs (dd) (2), (3), 
and (4) of this section mean the physiological condition or conditions 
that are recognized by the National Cancer Institute under those names 
or nomenclature, or under any previously accepted or commonly used 
names or nomenclature.
    (ee) Survivor means:
    (1) Subject to paragraph (ee)(2) of this section, a widow or 
widower, child, parent, brother, sister, grandparent and grandchild of 
a deceased covered employee.
    (2) Those individuals listed in paragraph (ee)(1) of this section 
do not include:
    (i) A child, a brother, a sister, or a grandchild who, at the time 
of the death, was married, or was 18 years of age or older, unless 
incapable of self-support; or
    (ii) A parent or grandparent who, at the time of the death, was not 
dependent on the deceased covered employee.
    (3) Notwithstanding paragraph (ee)(2)(i) of this section, an 
unmarried child, brother, sister, or grandchild is a survivor if he/she 
was, at the time of the death, a student as defined by section 8101 of 
Title 5, United States Code.
    (ff) Time of injury means:
    (1) In regard to a claim arising out of exposure to beryllium or 
silica, the last date on which a covered employee was exposed to such 
substance in the performance of duty in accordance with sections 
3623(a) or 3627(c) of the EEOICPA; or
    (2) In regard to a claim arising out of exposure to radiation, the 
last date on which a covered employee was exposed to radiation in the 
performance of duty in accordance with section 3623(b) of the EEOICPA 
or, in the case of a member of the Special Exposure Cohort, the last 
date on which the member of the Special Exposure Cohort was employed at 
the Department of Energy facility at which the member was exposed to 
radiation.
    (gg) Widow or widower means the wife or husband living with or 
dependent for support on the decedent at the time of his or her death, 
or living apart for reasonable cause or because of his or her 
desertion.
    (hh) Workday means a single workshift whether or not it occurred on 
more than one calendar day.

[[Page 28967]]

Information in Program Records


Sec. 30.10  Are all OWCP records relating to claims filed under the 
EEOICPA considered confidential?

    All OWCP records relating to claims for benefits under the EEOICPA 
are considered confidential and may not be released, inspected, copied 
or otherwise disclosed except as provided in the Freedom of Information 
Act and the Privacy Act of 1974.


Sec. 30.11  Who maintains custody and control of claim records?

    All OWCP records relating to claims for benefits filed under the 
EEOICPA are covered by the Privacy Act system of records entitled DOL/
ESA-49 (Office of Workers' Compensation Programs, Energy Employees 
Occupational Illness Compensation Program Act File). This system of 
records is maintained by and under the control of OWCP, and, as such, 
all records covered by DOL/ESA-49 are official records of OWCP. The 
protection, release, inspection and copying of records covered by DOL/
ESA-49 shall be accomplished in accordance with the rules, guidelines 
and provisions of this part, as well as those contained in 29 CFR parts 
70 and 71, and with the notice of the system of records and routine 
uses to be published in the Federal Register. All questions relating to 
access, disclosure, and/or amendment of EEOICPA records maintained by 
OWCP are to be resolved in accordance with this section.


Sec. 30.12  What process is used by a person who wants to obtain copies 
of or amend EEOICPA claim records?

    (a) A claimant seeking copies of his or her official EEOICPA file 
should address a request to the District Director of the OWCP office 
having custody of the file.
    (b) Any request to amend a record covered by DOL/ESA-49 should be 
directed to the district office having custody of the official file.
    (c) Any administrative appeal taken from a denial issued by OWCP 
under this section shall be filed with the Solicitor of Labor in 
accordance with 29 CFR 71.7 and 71.9.

Rights and Penalties


Sec. 30.15  May EEOICPA benefits be assigned or transferred?

    No claim for EEOICPA benefits may be assigned or transferred.


Sec. 30.16  What penalties may be imposed in connection with a claim 
under the EEOICPA?

    (a) Other statutory provisions make it a crime to file a false or 
fraudulent claim or statement with the federal government in connection 
with a claim under the EEOICPA. Included among these provisions is 
section 1001 of title 18, United States Code. Enforcement of criminal 
provisions that may apply to claims under the EEOICPA are within the 
jurisdiction of the Department of Justice.
    (b) In addition, administrative proceedings may be initiated under 
the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801-
12, to impose civil penalties and assessments against persons or 
entities who make, submit, or present, or cause to be made, submitted 
or presented, false, fictitious or fraudulent claims or written 
statements to OWCP in connection with a claim under the EEOICPA. The 
Department of Labor's regulations implementing the PFRCA are found at 
29 CFR part 22.


Sec. 30.17  Is a beneficiary who defrauds the government in connection 
with a claim for benefits still entitled to those benefits?

    When a beneficiary either pleads guilty to or is found guilty on 
either federal or state criminal charges of defrauding the federal 
government in connection with a claim for benefits under the EEOICPA or 
any other federal or state workers' compensation law, the beneficiary's 
entitlement to any further benefits will terminate effective the date 
either the guilty plea is accepted or a verdict of guilty is returned 
after trial, for any occupational disease for which the time of injury 
was on or before the date of such guilty plea or verdict. Any 
subsequent change in or recurrence of the beneficiary's medical 
condition does not affect termination of entitlement under this 
section.

Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

Claims for Occupational Illness--Employee or Survivor's Actions


Sec. 30.100  In general, how does an employee file for benefits?

    (a) To claim benefits under the EEOICPA, an employee must file a 
claim in writing on or after July 31, 2001. Form EE-1 should be used 
for this purpose, but any written communication that requests benefits 
under the EEOICPA will be considered a claim. It will, however, be 
necessary for a claimant to submit a Form EE-1 for OWCP to adjudicate 
the claim. Copies of Form EE-1 may be obtained from OWCP, from DOE, or 
from OWCP's home page on the Internet at www.dol.gov/dol/esa/public/owcp_org.htm. The employee must file his or her claim with OWCP, or 
another person may do so on the employee's behalf.
    (b) The employee may withdraw his or her claim by so requesting in 
writing to OWCP at any time before OWCP determines eligibility for 
benefits.
    (c) A claim is considered to be ``filed'' on the date that the 
employee mails his or her claim to OWCP, as determined by postmark, or 
on the date that the claim is received by OWCP or DOE, whichever is the 
earliest determinable date, but in no event earlier than July 31, 2001.
    (1) Form EE-1 shall be sworn to by the employee, or by the person 
filing the claim on behalf of the employee.
    (2) Except for a covered uranium employee, the employee is 
responsible for submitting, or arranging for the submission of, medical 
evidence to OWCP that establishes that he or she sustained an 
occupational illness.


Sec. 30.101  In general, how is a survivor's claim filed?

    (a) Any survivor of an employee who sustained an occupational 
illness may file a claim for compensation in writing on or after July 
31, 2001. Form EE-2 should be used for this purpose, but any written 
communication that requests benefits under the EEOICPA will be 
considered a claim. It will, however, be necessary for a claimant to 
submit a Form EE-2 for OWCP to adjudicate the claim. Copies of Form EE-
2 may be obtained from OWCP, from DOE, or from OWCP's home page on the 
Internet at www.dol.gov/dol/esa/public/owcp_org.htm. The claiming 
survivor must file his or her claim with OWCP, or another person may do 
so on the survivor's behalf. Although only one survivor need file a 
claim under this section to initiate the adjudication process, OWCP 
will distribute any monetary benefits paid among all eligible surviving 
beneficiaries pursuant to the terms of Sec. 30.501.
    (b) A survivor may withdraw his or her claim by so requesting in 
writing to OWCP at any time before OWCP determines eligibility for 
benefits.
    (c) A survivor must be alive to receive any payment; there is no 
vested right to such payment.
    (d) A survivor's claim is considered to be ``filed'' on the date 
that the survivor mails his or her claim to OWCP, as determined by 
postmark, or the date that the claim is received by OWCP or DOE, 
whichever is the earliest determinable date, but in no event earlier 
than July 31, 2001.
    (1) Form EE-2 shall be sworn to by the survivor, or by the person 
filing the claim on behalf of the survivor.
    (2) Except for the survivor of a covered uranium employee, the 
survivor

[[Page 28968]]

is responsible for submitting, or arranging for the submission of, 
evidence to OWCP that establishes that the employee upon whom the 
survivor's claim is based was eligible for such benefits, including 
medical evidence that establishes that the employee sustained an 
occupational illness.


Sec. 30.102  How does a claimant make sure that OWCP has the evidence 
necessary to process the claim?

    (a) Claim forms and certain required submissions should be made on 
forms prescribed by OWCP. Persons submitting forms shall not modify 
these forms or use substitute forms. DOE is expected to maintain an 
adequate supply of the basic forms needed for filing claims under the 
EEOICPA.

------------------------------------------------------------------------
              Form No.                               Title
------------------------------------------------------------------------
(1) EE-1............................  Claim for Benefits Under Energy
                                       Employees Occupational Illness
                                       Compensation Program Act.
(2) EE-2............................  Claim for Survivor Benefits Under
                                       Energy Employees Occupational
                                       Illness Compensation Program Act.
(3) EE-3............................  Employment History for Claim Under
                                       Energy Employees Occupational
                                       Illness Compensation Program Act.
(4) EE-4............................  Employment History Affidavit for
                                       Claim Under the Energy Employees
                                       Occupational Illness Compensation
                                       Program Act.
(5) EE-5............................  Department of Energy's Response to
                                       Employment History for Claim
                                       Under the Energy Employees
                                       Occupational Illness Compensation
                                       Program Act.
(6) EE-7............................  Medical Requirements Under the
                                       Energy Employees Occupational
                                       Illness Compensation Program Act
                                       (EEOICPA).
------------------------------------------------------------------------

    (b) Copies of the forms listed in this section are available for 
public inspection at the Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, 
Washington, D.C. 20210. They may also be obtained from OWCP district 
offices, from DOE, and from OWCP's home page on the Internet at 
www.dol.gov/dol/esa/public/owcp_org.htm.

Claims for Occupational Illness--Actions of DOE


Sec. 30.105  What must DOE do after an employee files a claim for an 
occupational illness?

    (a) DOE shall complete Form EE-5 as soon as possible and transmit 
the completed form to OWCP. On this form, DOE shall certify that it 
concurs with the employment information provided by the employee, or 
that it disagrees with such information, or that it can neither concur 
nor disagree after making a reasonable search of its records and also 
making a reasonable effort to locate pertinent records not already in 
its possession.
    (b) Upon request of a claimant, DOE shall also assist such claimant 
in completing Form EE-4 and transmit the completed form to OWCP.
    (c) DOE should not wait for the employee to submit the necessary 
supporting medical evidence before it forwards any Form EE-1 (or other 
document containing an employee's claim) it has received to OWCP.


Sec. 30.106  What should DOE do when an employee with a claim for an 
occupational illness dies?

    (a) When possible, DOE shall furnish a Form EE-2 to all survivors 
likely to be entitled to compensation after the death of an employee. 
DOE should also supply information about completing and filing the 
form.
    (b) DOE shall complete Form EE-5 as soon as possible and transmit 
the completed form to OWCP. On this form, DOE shall certify that it 
concurs with the employment information provided by the survivor, or 
that it disagrees with such information, or that it can neither concur 
nor disagree after making a reasonable search of its records and also 
making a reasonable effort to locate pertinent records not already in 
its possession.
    (c) Upon request of a survivor, DOE shall also assist such survivor 
in completing Form EE-4 and transmit the completed form to OWCP.
    (d) DOE should not wait for the claiming survivor to submit the 
necessary supporting medical evidence before it forwards any Form EE-2 
(or other document containing a survivor's claim) it has received to 
OWCP.

Evidence and Burden of Proof


Sec. 30.110  Who is entitled to compensation under the Act?

    (a) Compensation is payable to the following covered employees, or 
their survivors:
    (1) A ``covered beryllium employee'' (as described Sec. 30.205(a) 
who has been diagnosed with a covered beryllium illness (as defined in 
Sec. 30.5(o)) and was exposed to beryllium in the performance of duty 
(in accordance with Sec. 30.206).
    (2) A ``covered employee with cancer'' (as described in 
Sec. 30.210).
    (3) A ``covered employee with chronic silicosis'' (as described in 
Sec. 30.215).
    (4) A ``covered uranium employee'' (as defined in Sec. 30.5(q)).
    (b) Any claim that does not meet all of the criteria for at least 
one of these categories, as set forth in these regulations, must be 
denied.
    (c) All claims for benefits under the Act must comply with the 
claims procedures and requirements set forth in subpart B of this part 
before any payment can be made from the Fund.


Sec. 30.111  What is the claimant's responsibility with respect to 
burden of proof, production of documents, presumptions, and affidavits?

    (a) Except where otherwise provided in the Act and these 
regulations, the claimant bears the burden of proving by a 
preponderance of the evidence the existence of each and every criterion 
necessary to establish eligibility under any compensable claim category 
set forth in Sec. 30.110. Proof by a preponderance of the evidence 
means that it is more likely than not that the proposition to be proved 
is true. Subject to the exceptions expressly provided in the Act and 
regulations, the claimant also bears the burden of providing to the 
OWCP all written medical documentation, contemporaneous records, or 
other records and documents necessary to establish any and all criteria 
for benefits set forth in these regulations.
    (b) In the event that the claim lacks required information or 
supporting documentation, DOL will notify the employee, survivor, and/
or DOE of the deficiencies and provide an opportunity for correction of 
the deficiencies.
    (c) Written affidavits or declarations, subject to penalty for 
perjury, by the employee, survivor, or any other person, will be 
accepted as evidence of employment history and survivor relationship 
for purposes of establishing eligibility and may be relied on in 
determining whether a claim meets the requirements of the Act for 
benefits if, and only if, such person attests that due diligence was 
used to obtain records in support of the claim, but that no records 
exist.
    (d) A claimant will not be entitled to any presumption otherwise 
provided for in these regulations if substantial evidence exists that 
rebuts the existence of the fact that is the subject of the 
presumption. Substantial evidence means such relevant evidence as a 
reasonable mind might accept as adequate to support a conclusion. When 
such evidence exists, the covered employee or his or her survivor shall 
be notified and afforded the opportunity to submit additional written 
medical documentation or records.

[[Page 28969]]

Sec. 30.112  What are the requirements for written medical 
documentation, contemporaneous records, and other records or documents?

    (a) All written medical documentation, contemporaneous records, and 
other records or documents submitted by an employee or his or her 
survivor to prove any criteria provided for in these regulations must 
be originals, a certified copy or a clear readable copy of the document 
or record.
    (b) To establish eligibility, the employee or his or her survivor 
may be required to provide, where appropriate, additional 
contemporaneous records to the extent they exist or an authorization to 
release additional contemporaneous records or a statement by the 
custodian(s) of the record(s) certifying that the requested record(s) 
no longer exist. Nothing in the regulation in this section shall be 
construed to limit OWCP's ability to require additional documentation.

Special Procedures for Certain Cancer Claims


Sec. 30.115  What does OWCP do once it determines that a covered 
employee who is not a member of the Special Exposure Cohort (or a 
survivor of such an employee) has established that he or she contracted 
cancer under Sec. 30.211(b)?

    (a) OWCP will forward any such claimant's application package 
(including, but not limited to, Forms EE-1, EE-2, EE-3, EE-4 and EE-5, 
as appropriate) to HHS for dose reconstruction. At that point in time, 
adjudication of the claim by OWCP is suspended.
    (1) This package will include OWCP's initial findings in regard to 
the covered employee's diagnosis and date of diagnosis, as well as any 
employment history compiled by OWCP (including information such as 
dates and locations worked, and job titles). The package, however, does 
not constitute a recommended or final decision by OWCP on the claim.
    (2) HHS will then reconstruct the covered employee's radiation 
dose, following such further development of the employment history as 
it may deem necessary, and notify the claimant of its findings. At that 
same time, HHS will also inform OWCP that it has so notified the 
claimant and provide OWCP with a copy of the information provided to 
the claimant.
    (b) In special circumstances, i.e., where there is clear evidence 
showing a sufficient level of radiation exposure to qualify a claimant 
for benefits, OWCP may waive the above procedure for dose 
reconstruction.
    (c) Following its receipt of the reconstructed dose from HHS, OWCP 
will consider whether the claimant has met the eligibility criteria set 
forth in subpart C.

Subpart C--Eligibility Criteria

General Provisions


Sec. 30.200  What is the scope of this subpart?

    The regulations in this subpart describe the criteria for 
eligibility for benefits for claims relating to covered beryllium 
illness under sections 3621, 3623, 3628 and 3629 of the Act; for claims 
relating to employees with cancer under sections 3621, 3623, 3626 and 
3629 of the Act; for claims relating to chronic silicosis disease under 
sections 3621, 3627, 3628 and 3629; and for claims relating to covered 
uranium employees under sections 3629 and 3630. This subpart describes 
the type and extent of evidence that will be accepted as evidence of 
the various criteria for eligibility for compensation for each of these 
illnesses.

Eligibility Criteria for Claims Relating to Covered Beryllium 
Illness


Sec. 30.205  What are the criteria for eligibility for benefits 
relating to covered beryllium illness?

    To establish eligibility for benefits under this section, the 
claimant must establish the criteria set forth in pargraphs (a) and (b) 
of this section:
    (a) The employee is a covered beryllium employee by establishing:
    (1) The employee is a ``current or former employee as defined in 5 
U.S.C. 8101(1)'' (see Sec. 30.5(r) of this subpart) who may have been 
exposed to beryllium at a DOE facility or at a facility owned, 
operated, or occupied by a beryllium vendor; or
    (2) The employee is a current or former employee of:
    (i) Any entity that contracted with the DOE to provide management 
and operation, management and integration, or environmental remediation 
of a DOE facility; or
    (ii) Any contractor or subcontractor that provided services, 
including construction and maintenance, at such a facility; or
    (iii) A beryllium vendor, or of a contractor or subcontractor of a 
beryllium vendor, during a period when the vendor was engaged in 
activities related to the production or processing of beryllium for 
sale to, or use by, the DOE; and
    (3) The employee was exposed to beryllium in the performance of 
duty by establishing that he or she was:
    (i) Employed at a DOE facility (as defined in Sec. 30.5(o) of this 
subpart); or
    (ii) Present at a DOE facility, or a facility owned and operated by 
a beryllium vendor, because of his or her employment by the United 
States, a beryllium vendor, or a contractor or subcontractor of the 
DOE; during a period when beryllium dust, particles, or vapor may have 
been present at such a facility.
    (b) The employee has one of the following:
    (1) Beryllium sensitivity as established by an abnormal beryllium 
LPT performed on either blood or lung lavage cells.
    (2) Established chronic beryllium disease.
    (3) Any injury, illness, impairment, or disability sustained as a 
consequence of the conditions specified in paragraphs (b), (1) and (2) 
of this section.


Sec. 30.206  How does a claimant prove that the claimant was a 
``covered beryllium employee'' exposed to beryllium dust, particles or 
vapor in the performance of duty?

    (a) Proof of employment at or physical presence at a DOE facility, 
or a facility owned and operated by a beryllium vendor, because of 
employment by the United States, a beryllium vendor, or a contractor or 
subcontractor of the DOE during a period when beryllium dust, 
particles, or vapor may have been present at such a facility, may be 
made by the submission of any trustworthy contemporaneous records that, 
on their face or in conjunction with other such records, establish that 
the employee was employed or present at a covered facility and the time 
period of such employment or presence.
    (b) Contemporaneous records from the following sources may be 
considered as evidence for purposes of establishing employment or 
presence at a covered facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created by any vendor, processor, or 
producer of beryllium or related products designated as a beryllium 
vendor by the DOE in accordance with section 3622 of the Act.
    (3) Records or documents created by any regularly conducted 
business activity or entity that acted as a contractor or subcontractor 
to the DOE.

[[Page 28970]]

Sec. 30.207  How does a claimant prove diagnosis of a covered beryllium 
disease?

    (a) Written medical documentation is required in all cases to prove 
that the employee developed a covered beryllium illness. Proof that the 
employee developed a covered beryllium illness must be made by using 
the procedures outlined in paragraphs (b), (c), (d), or (e) of this 
section.
    (b) Beryllium sensitivity or sensitization is established with an 
abnormal LPT performed on either blood or lung lavage cells.
    (c) Chronic beryllium disease is established in the following 
manner:
    (1) For diagnoses on or after January 1, 1993, beryllium 
sensitivity (as established in accordance with paragraph (b) of this 
section), together with lung pathology consistent with chronic 
beryllium disease, including the following:
    (i) A lung biopsy showing granulomas or a lymphocytic process 
consistent with chronic beryllium disease;
    (ii) A computerized axial tomography scan showing changes 
consistent with chronic beryllium disease; or
    (iii) Pulmonary function or exercise testing showing pulmonary 
deficits consistent with chronic beryllium disease.
    (2) For diagnoses before January 1, 1993, the presence of the 
following:
    (i) Occupational or environmental history, or epidemiologic 
evidence of beryllium exposure; and
    (ii) Any three of the following criteria:
    (A) Characteristic chest radiographic (or computed tomography (CT)) 
abnormalities.
    (B) Restrictive or obstructive lung physiology testing or diffusing 
lung capacity defect.
    (C) Lung pathology consistent with chronic beryllium disease.
    (D) Clinical course consistent with chronic respiratory disorder.
    (E) Immunologic tests showing beryllium sensitivity (skin patch 
test or beryllium blood test preferred).
    (d) An injury, illness, impairment or disability sustained as a 
consequence of beryllium sensitivity or established chronic beryllium 
disease must be established with a fully rationalized medical report by 
a physician that shows the relationship between the injury, illness, 
impairment or disability and the beryllium sensitivity or established 
chronic beryllium disease. Neither the fact that the injury, illness, 
impairment or disability manifests itself after a diagnosis of 
beryllium sensitivity or established chronic beryllium disease, nor the 
belief of the claimant that the injury, illness, impairment or 
disability was caused by the beryllium sensitivity or established 
chronic beryllium disease is sufficient in itself to prove a causal 
relationship.
    (e) The Secretary of Health and Human Services may, from time to 
time, and in consultation with the DOE, specify additional means of 
establishing the existence of a covered beryllium illness.

Eligibility Criteria for Claims Relating to Cancer


Sec. 30.210  What are the criteria for eligibility for benefits 
relating to cancer?

    To establish eligibility for benefits for cancer, an employee or 
his or her survivor must show that:
    (a) The employee has been diagnosed with one of the forms of cancer 
specified in section 4(b)(2) of the Radiation Exposure Compensation Act 
(42 U.S.C. 2210 note) and set forth in Sec. 30.5(dd) of this subpart; 
and
    (1) Is a member of the Special Exposure Cohort (as described in 
Sec. 30.213(a) of this subpart) who, as a DOE employee or DOE 
contractor employee, contracted the specified cancer after beginning 
employment at a DOE facility; or
    (2) Is a member of the Special Exposure Cohort (as described in 
Sec. 30.213(a) of this subpart) who, as an atomic weapons employee, 
contracted the specified cancer after beginning employment at an atomic 
weapons employer facility (as defined in Sec. 30.5(e)); or
    (b) The employee has been diagnosed with cancer; and
    (1) Is/was a DOE employee who contracted that cancer after 
beginning employment at a DOE facility; or
    (2) Is/was a DOE contractor employee who contracted that cancer 
after beginning employment at a DOE facility; or
    (3) Is/was an atomic weapons employee who contracted that cancer 
after beginning employment at an atomic weapons employer facility; and
    (4) That the cancer was at least as likely as not related to the 
employment at the DOE facility or atomic weapons employer facility; or
    (c) The employee has been diagnosed with an illness or disease that 
arose as a consequence of the accepted cancer.


Sec. 30.211  How does a claimant establish that the employee has or had 
contracted cancer?

    A claimant establishes that the employee has or had contracted 
cancer with medical evidence that sets forth the diagnosis of cancer 
and the date on which that diagnosis was made.


Sec. 30.212  How does a claimant establish that the cancer was at least 
as likely as not related to the employment at the DOE facility or the 
atomic weapons employer facility?

    HHS, with the advice of the Advisory Board on Radiation and Worker 
Health, will issue guidelines for making the determination whether 
cancer was at least as likely as not related to the employment at the 
DOE facility or the atomic weapons employer facility. Claimants should 
consult those guidelines for information regarding the type of evidence 
that will be considered by DOL, in addition to the employee's radiation 
dose reconstruction that will be provided by HHS, in making this 
determination.


Sec. 30.213  How does a claimant establish that the employee is a 
member of the Special Exposure Cohort?

    (a) For purposes of establishing eligibility as a member of the 
Special Exposure Cohort (SEC) under Sec. 30.210, the employee must have 
been a DOE employee, DOE contractor employee, or an atomic weapons 
employee who meets any of the following requirements:
    (1) The employee was so employed for a number of workdays 
aggregating at least 250 workdays before February 1, 1992, at a gaseous 
diffusion plant located in Paducah, Kentucky; Portsmouth, Ohio; or Oak 
Ridge, Tennessee; and during such employment:
    (i) Was monitored through the use of dosimetry badges for exposure 
at the plant of the external parts of the employee's body to radiation; 
or
    (ii) Worked in a job that had exposures comparable to a job that is 
or was monitored through the use of dosimetry badges.
    (2) The employee was so employed before January 7, 1974, by DOE or 
a DOE contractor or subcontractor on Amchitka Island, Alaska, and was 
exposed to ionizing radiation in the performance of duty related to the 
Long Shot, Milrow, or Cannikin underground nuclear tests.
    (3) The employee is a member of a group or class of employees 
subsequently designated as additional members of the SEC by HHS.
    (b) For purposes of satisfying the 250 workday requirement of 
paragraph (a)(1) of this section, the claimant may aggregate the days 
of service at more than one gaseous diffusion plant.
    (c) Proof of employment by the DOE or a DOE contractor, or atomic 
weapons employer for the requisite time periods set forth in paragraph 
(a) of this section, may be made by the submission of any trustworthy 
contemporaneous records

[[Page 28971]]

that, on their face or in conjunction with other such records, 
establish that the employee was so employed and the time period(s) of 
such employment.
    (d) Contemporaneous records from the following sources may be 
considered as evidence for purposes of establishing employment or 
presence at a covered facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created as a byproduct of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.


Sec. 30.214  How does a claimant establish that the employee has been 
diagnosed with cancer or has sustained a consequential injury, illness 
or disease?

    (a) Evidence that the employee contracted a specified cancer (in 
the case of SEC members) or other cancer should include a written 
medical document that contains an explicit statement of diagnosis and 
the date on which that diagnosis was first made.
    (b) An injury, illness, impairment or disability sustained as a 
consequence of a diagnosed cancer covered by the provisions of 
Sec. 30.210(a) and (b) must be established with a fully rationalized 
medical report by a physician that shows the relationship between the 
injury, illness, impairment or disability and the covered cancer. 
Neither the fact that the injury, illness, impairment or disability 
manifests itself after a diagnosis of a covered cancer, nor the belief 
of the claimant that the injury, illness, impairment or disability was 
caused by the covered cancer is sufficient in itself to prove a causal 
relationship.

Eligibility Criteria for Chronic Silicosis


Sec. 30.215  What are the criteria for eligibility for benefits 
relating to chronic silicosis?

    To establish eligibility for benefits for chronic silicosis, a 
claimant must show that the employee was a covered employee with 
chronic silicosis by establishing that:
    (a) The employee is a DOE employee, or a DOE contractor employee, 
who was present for a number of work days aggregating at least 250 work 
days during the mining of tunnels at a DOE facility (as defined in 
Sec. 30.5(v)) located in Nevada or Alaska for tests or experiments 
related to an atomic weapon; and
    (b) Has been diagnosed with chronic silicosis (as defined in 
Sec. 30.5(j)).


Sec. 30.216  How does a claimant prove exposure to silica in the 
performance of duty?

    (a) Proof of the employee's employment and presence for the 
requisite days during the mining of tunnels at a DOE facility located 
in Nevada or Alaska for tests of experiments related to an atomic 
weapon may be by the submission of any trustworthy contemporaneous 
records that, on their face or in conjunction with other such records, 
establish that the employee was so employed and present at these sites 
and the time period(s) of such employment and presence.
    (b) Contemporaneous records from the following sources may be 
considered as evidence for purposes of establishing proof of employment 
or presence at a covered facility:
    (1) Records or documents created by any federal government agency 
(including verified information submitted for security clearance), any 
tribal government, or any state, county, city or local government 
office, agency, department, board or other entity, or other public 
agency or office.
    (2) Records or documents created as a byproduct of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.
    (c) For purposes of satisfying the 250 workday requirement of 
Sec. 30.215(a), the claimant may aggregate the days of service at more 
than one qualifying site.


Sec. 30.217  How does a claimant prove the covered employee's diagnosis 
of chronic silicosis?

    A written diagnosis of the employee's chronic silicosis (as defined 
in Sec. 30.5(j)) shall be made by a medical doctor and accompanied by:
    (a) A chest radiograph, interpreted by an individual certified by 
the National Institute for Occupational Safety and Health as a B 
reader, classifying the existence of pneumoconioses of category 1/1 or 
higher;
    (b) Results from a computer assisted tomograph or other imaging 
technique that are consistent with silicosis; or
    (c) Lung biopsy findings consistent with silicosis.

Eligibility of Certain Uranium Employees


Sec. 30.220  What are the criteria for eligibility for benefits for 
certain uranium employees?

    (a) In order to be eligible for compensation under this section, 
the Attorney General must have determined that a claimant is a covered 
uranium employee or surviving eligible beneficiary of such employee who 
is entitled to payment of $100,000 as compensation due under section 5 
of the Radiation Exposure Compensation Act (42 U.S.C. 2210 note) for a 
claim made under that Act.
    (b) There is no requirement that the claimant or surviving eligible 
beneficiary has actually received payment pursuant to the RECA.

Subpart D--Adjudicatory Process


Sec. 30.300  What process will OWCP use to decide claims and to provide 
for administrative review of those decisions?

    OWCP district offices will issue recommended decisions with respect 
to claims. All recommended decisions, including those granting and 
denying benefits under the Act, will be forwarded to the Final 
Adjudication Branch (FAB). Claimants will be given an opportunity to 
object to all or part of the recommended decision. The FAB will 
consider any objections filed by a claimant and conduct a hearing, if 
requested to do so by the claimant, before issuing a final decision on 
the claim.

Recommended Decisions on Claims


Sec. 30.305  How does OWCP determine entitlement to EEOICPA 
compensation?

    (a) In reaching a recommended decision with respect to EEOICPA 
compensation, OWCP considers the claim presented by the claimant, the 
factual and medical evidence of record, the dose reconstruction report 
calculated by HHS (if any), the report submitted by DOE and the results 
of such investigation as OWCP may deem necessary.
    (b) The OWCP claims staff applies the law, the regulations and its 
procedures to the facts as reported or obtained upon investigation.


Sec. 30.306  What does the recommended decision contain?

    The recommended decision shall contain findings of fact and 
conclusions of law. The recommended decision may accept or reject the 
claim in its entirety, or it may accept or reject a portion of the 
claim presented. It is accompanied by information about the claimant's 
right to file specific objections with, and request a hearing before, 
the FAB.


Sec. 30.307  To whom is the recommended decision sent?

    A copy of the recommended decision will be mailed to the claimant's 
last known address. However, if the claimant has a designated 
representative before OWCP, the copy of the

[[Page 28972]]

recommended decision will be mailed to the representative. Notification 
to either the claimant or the representative will be considered 
notification to both parties.

Hearings and Final Decisions on Claims


Sec. 30.310  How does a claimant object to a recommended decision on a 
claim?

    (a) At the same time it issues a recommended decision on a claim, 
the OWCP district office will forward the record of such claim to the 
FAB. Any new evidence submitted to the district office following the 
issuance of the recommended decision will also be forwarded to the FAB 
for consideration.
    (b) In a notice accompanying the recommended decision, the district 
office will request that the claimant specify, within 60 days from the 
date of issuance of such decision, whether he or she objects to any of 
the findings of fact and/or conclusions of law contained in the 
recommended decision, and whether a hearing is desired. Any objection, 
as well as any related request for a hearing, should be sent to the FAB 
at the address indicated in the notice.
    (1) All objections to the recommended decision must be identified 
as specifically as possible by the date described above in paragraph 
(b) of this section, unless that date is extended by the FAB, or the 
FAB reviewer permits further objections at the hearing.
    (2) Any objection not presented to the FAB within the time period 
described in this section, including any objection to HHS's 
reconstruction of the radiation dose to which the employee was exposed, 
whether or not the issue was previously presented to the district 
office, is deemed waived for all purposes.


Sec. 30.311  What action will the FAB take if the claimant does not 
file objections to the recommended decision?

    (a) If no objections to specific findings of fact or conclusions of 
law are filed within the period of time allotted in Sec. 30.310(b), the 
FAB will issue a decision affirming the recommended decision as 
provided in Sec. 30.316, even if the claimant requests a hearing.
    (b) If the recommended decision accepts all or part of a claim for 
compensation, the FAB may issue a decision at any time after receiving 
written notice from the claimant that he or she waives any objection to 
all or part of the recommended decision.


Sec. 30.312  What action will the FAB take if the claimant files 
objections but does not request a hearing?

    If the claimant specifies objections to the recommended decision 
within the appropriate time period but does not request a hearing, the 
FAB will consider such objections by means of a review of the written 
record. If the claimant's objections only refer to part of the 
recommended decision, the FAB may issue a decision affirming the 
remaining part of the recommended decision without first reviewing the 
written record (see Sec. 30.316).


Sec. 30.313  How is a review of the written record conducted?

    (a) The FAB reviewer will review the record forwarded by the 
district office and any additional evidence and/or argument submitted 
by the claimant. The reviewer may also conduct whatever investigation 
is deemed necessary.
    (b) The claimant should submit, with his or her statement 
specifying the findings of fact and/or conclusions of law contained in 
the district office's recommended decision to which he or she objects, 
all evidence or argument that he or she wants to present to the 
reviewer. However, evidence or argument may be submitted at any time up 
to the date specified by the reviewer for the submission of such 
evidence or argument.


Sec. 30.314  How is a hearing conducted?

    (a) The FAB reviewer retains complete discretion to set the time 
and place of the hearing, including the amount of time allotted for the 
hearing, considering the issues to be resolved. At the discretion of 
the reviewer, the hearing may be conducted by telephone or 
teleconference. In addition to the evidence of record, the claimant may 
submit new evidence to the reviewer.
    (b) Unless otherwise directed in writing by the claimant, the FAB 
reviewer will mail a notice of the time and place of the hearing to the 
claimant and any representative at least 30 days before the scheduled 
date. This notice will also include a listing of the issues to be 
addressed during the hearing. If the claimant only objects to a part of 
the recommended decision, the FAB reviewer may issue a decision 
affirming the remaining part of the recommended decision without first 
holding a hearing (see Sec. 30.316).
    (c) The hearing is an informal process, and the reviewer is not 
bound by common law or statutory rules of evidence, or by technical or 
formal rules of procedure. The reviewer may conduct the hearing in such 
manner as to best ascertain the rights of the claimant. During the 
hearing process, the claimant may state his or her arguments and 
present new written evidence and/or testimony in support of the claim.
    (d) Testimony at hearings is recorded, then transcribed and placed 
in the record. Oral testimony shall be made under oath.
    (e) The FAB reviewer will furnish a transcript of the hearing to 
the claimant, who has 20 days from the date it is sent to submit any 
comments to the reviewer.
    (f) The claimant will have 30 days after the hearing is held to 
submit additional evidence or argument, unless the reviewer, in his or 
her sole discretion, grants an extension. Only one such extension may 
be granted.
    (g) The reviewer determines the conduct of the hearing and may 
terminate the hearing at any time he or she determines that all 
relevant evidence has been obtained, or because of misbehavior on the 
part of the claimant and/or representative at or near the place of the 
oral presentation.


Sec. 30.315  May a claimant postpone a hearing?

    (a) The FAB will entertain any reasonable request for scheduling 
the hearing, but such requests should be made at the time of the 
hearing request described in Sec. 30.310(b). Scheduling is at the sole 
discretion of the FAB reviewer, and is not reviewable. Once the hearing 
is scheduled and appropriate written notice has been mailed, the 
hearing cannot be postponed at the claimant's request for any reason 
except those stated in paragraph (b) of this section, unless the FAB 
reviewer can reschedule the hearing on the same docket (that is, during 
the same hearing trip). When the request to postpone a scheduled 
hearing does not meet the test of paragraph (b) of this section and 
cannot be accommodated on the docket, no further opportunity for a 
hearing will be provided. Instead, the claimant's specified objections 
will be considered by means of a review of the written record. In the 
alternative, a teleconference may be substituted for the hearing at the 
discretion of the reviewer.
    (b) Where the claimant is hospitalized for a reason which is not 
elective, or where the death of the claimant's parent, spouse, or child 
prevents attendance at the hearing, a postponement may be granted upon 
proper documentation.
    (c) At any time after requesting a hearing, the claimant can 
request a change to a review of the written record by making a written 
request to the FAB. Once such a change is made, no further opportunity 
for a hearing will be provided.

[[Page 28973]]

Sec. 30.316  How does the FAB issue a final decision on a claim?

    (a) If the 60-day period specified in the notice accompanying the 
recommended decision (plus any extension of such period granted by the 
FAB) for filing objections to the recommended decision expires and no 
objections have been filed, or if the claimant waives any objections to 
all or part of the recommended decision, the FAB will issue a decision 
affirming the recommended decision, either in whole or in part (see 
Secs. 30.311, 30.312 and 30.314(a)).
    (b) If the claimant files objections to all or part of the 
recommended decision, the FAB reviewer will issue a decision on the 
claim after either the hearing or the review of the written record, and 
after completing such further development of the case as he or she may 
deem necessary.
    (c) Any recommended decision (or part thereof) that is pending 
either a hearing or a review of the written record for more than one 
year from the date the FAB receives the record from the district office 
shall be considered affirmed by the FAB on the one-year anniversary of 
such date.
    (d) The decision of the FAB, whether issued pursuant to paragraph 
(a), (b) or (c) of this section, shall be final upon the expiration of 
30 days from the date of issuance of such decision, unless a timely 
request for reconsideration under Sec. 30.319 has been filed.
    (e) A copy of the decision of the FAB will be mailed to the 
claimant's last known address. However, if the claimant has a 
designated representative before OWCP, the copy of the decision will be 
mailed to the representative. Notification to either the claimant or 
the representative will be considered notification to both parties.


Sec. 30.317  Can the FAB request a further response from the claimant 
or remand a claim to the district office?

    At any time before the issuance of its decision, the FAB may 
request that the claimant submit additional evidence or argument, or 
remand the claim to the district office for further development without 
issuing a decision, whether or not requested to do so by the claimant.


Sec. 30.318  Can the FAB review a determination by HHS with respect to 
an employee's dose reconstruction?

    (a) The FAB will review the factual determinations upon which HHS 
based its decision. Factual findings that do not appear to be supported 
by substantial evidence will be remanded to the district office for 
referral to HHS for further consideration.
    (b) The methodology used by HHS in arriving at reasonable estimates 
of the radiation doses received by an employee, established by 
regulations issued by HHS, is binding on the FAB. The FAB reviewer may 
determine, however, that arguments concerning the application of that 
methodology should be considered by HHS and may remand the case to the 
district office for referral to HHS for such consideration.


Sec. 30.319  May a claimant request reconsideration of a decision of 
the FAB?

    (a) A claimant may request reconsideration of a decision of the FAB 
by making a written request to the FAB within 30 days from the date of 
issuance of such decision.
    (b) If the FAB grants the request for reconsideration, it will 
review the district office's recommended decision again and issue a new 
decision on the claim. A hearing is not available as part of the 
reconsideration process. If the FAB denies the request for 
reconsideration, the decision in question shall be final on the date 
the request is denied.
    (c) A claimant may not seek judicial review of a decision on his or 
her claim under the Act until all administrative review opportunities 
have been exhausted and OWCP's decision on the claim is final pursuant 
to Sec. 30.316(d).

Modification


Sec. 30.320  Can a final decision be modified once the period for 
requesting reconsideration has expired?

    A final decision issued by the FAB may be modified at any time on 
OWCP's own motion. A final decision may also be modified on the motion 
of the claimant within one year of the date on which such decision 
became final, provided that the claimant can establish a mistake of 
fact in the decision, or changed conditions. Modification may be 
granted without regard to whether new evidence or information is 
presented or obtained. If OWCP determines that modification is 
warranted, it may issue a new recommended decision modifying the prior 
final decision.
    (a) The decision whether or not to modify a final decision under 
this section is solely within the discretion of OWCP.
    (b) Where OWCP grants modification of a final decision, any 
resulting recommended decision is subject to the adjudicatory process 
described in this subpart. However, the scope of review at the FAB will 
be limited to review of the merits of the recommended decision. OWCP's 
discretionary determination to modify the prior final decision is not 
reviewable.
    (c) Nothing in this section shall prevent a claimant from filing 
another claim under the EEOICPA for compensation for an occupational 
illness or a consequential injury for which he or she has not 
previously sought compensation under the EEOICPA. In any event, 
however, no claimant may receive more than one award of monetary 
compensation under sections 3628(a)(1) or 3630(a) of the EEOICPA.

Subpart E--Medical and Related Benefits

Medical Treatment and Related Issues


Sec. 30.400  What are the basic rules for obtaining medical care?

    (a) The covered employee who fits into at least one of the 
compensable claim categories is entitled to receive all medical 
services, appliances or supplies that a qualified physician prescribes 
or recommends and that OWCP considers necessary to treat his or her 
occupational illness, retroactive to the date the employee filed a 
claim for benefits under the EEOICPA (see Sec. 30.100(c)). The employee 
need not be disabled to receive such treatment, and OWCP will pay for 
such treatment even if the covered employee dies before the claim is 
accepted. If there is any doubt as to whether a specific service, 
appliance or supply is necessary to treat the occupational illness, the 
employee should consult OWCP prior to obtaining it.
    (b) Any qualified physician or qualified hospital may provide such 
services, appliances and supplies. A qualified provider of medical 
support services may also furnish appropriate services, appliances, and 
supplies. OWCP may apply a test of cost-effectiveness to appliances and 
supplies. With respect to prescribed medications, OWCP may require the 
use of generic equivalents where they are available.


Sec. 30.401  What are the special rules for the services of 
chiropractors?

    (a) The services of chiropractors that may be reimbursed by OWCP 
are limited to treatment to correct a spinal subluxation. The costs of 
physical and related laboratory tests performed by or required by a 
chiropractor to diagnose such a subluxation are also payable.
    (b) A diagnosis of spinal subluxation as demonstrated by x-ray to 
exist must appear in the chiropractor's report before OWCP can consider 
payment of a chiropractor's bill.

[[Page 28974]]

    (c) A chiropractor may interpret his or her x-rays to the same 
extent as any other physician. To be given any weight, the medical 
report must state that x-rays support the finding of spinal 
subluxation. OWCP will not necessarily require submission of the x-ray, 
or a report of the x-ray, but the report must be available for 
submission on request.
    (d) A chiropractor may also provide services in the nature of 
physical therapy under the direction of a qualified physician.


Sec. 30.402  What are the special rules for the services of clinical 
psychologists?

    A clinical psychologist may serve as a physician within the scope 
of his or her practice as defined by state law. Therefore, a clinical 
psychologist may not serve as a physician for conditions that include a 
physical component unless the applicable state law allows clinical 
psychologists to treat physical conditions. A clinical psychologist may 
also perform testing, evaluation, and other services under the 
direction of a qualified physician.


Sec. 30.403  Will OWCP pay for the services of an attendant?

    OWCP will authorize payment for personal care services under 
section 3629 of the EEOICPA, whether or not such care includes medical 
services, so long as the personal care services have been determined to 
be medically necessary and are provided by a home health aide, licensed 
practical nurse, or similarly trained individual.


Sec. 30.404  Will OWCP pay for transportation to obtain medical 
treatment?

    The employee is entitled to reimbursement of reasonable and 
necessary expenses, including transportation needed to obtain 
authorized medical services, appliances or supplies. To determine what 
is a reasonable distance to travel, OWCP will consider the availability 
of services, the employee's condition, and the means of transportation. 
Generally, 25 miles from the work site or the employee's home is 
considered a reasonable distance to travel. The standard form 
designated for federal employees to claim travel expenses should be 
used to seek reimbursement under this section.


Sec. 30.405  After selecting a treating physician, may an employee 
choose to be treated by another physician instead?

    (a) OWCP will provide the employee with an opportunity to designate 
a treating physician when it accepts the claim. When the physician 
originally selected to provide treatment for an occupational illness 
refers the employee to a specialist for further medical care, the 
employee need not consult OWCP for approval. In all other instances, 
however, the employee must submit a written request to OWCP with his or 
her reasons for desiring a change of physician.
    (b) OWCP will approve the request if it determines that the reasons 
submitted are sufficient. Requests that are often approved include 
those for transfer of care from a general practitioner to a physician 
who specializes in treating occupational illnesses covered by the 
EEOICPA, or the need for a new physician when an employee has moved.


Sec. 30.406  Are there any exceptions to these procedures for obtaining 
medical care?

    In cases involving emergencies or unusual circumstances, OWCP may 
authorize treatment in a manner other than as stated in this subpart.

Directed Medical Examinations


Sec. 30.410  Can OWCP require an employee to be examined by another 
physician?

    OWCP sometimes needs a second opinion from a medical specialist. 
The employee must submit to examination by a qualified physician as 
often and at such times and places as OWCP considers reasonably 
necessary. The employee may have a qualified physician, paid by him or 
her, present at such examination. However, the employee is not entitled 
to have anyone else present at the examination unless OWCP decides that 
exceptional circumstances exist. For example, where a hearing-impaired 
employee needs an interpreter, the presence of an interpreter would be 
allowed. Also, OWCP may send a case file for second opinion review 
where actual examination is not needed, or where the employee is 
deceased.


Sec. 30.411  What happens if the opinion of the physician selected by 
OWCP differs from the opinion of the physician selected by the 
employee?

    (a) If one medical opinion holds more probative value, OWCP will 
base its determination of entitlement on that medical conclusion. A 
difference in medical opinion sufficient to be considered a conflict 
occurs when two reports of virtually equal weight and rationale reach 
opposing conclusions.
    (b) If a conflict exists between the medical opinion of the 
employee's physician and the medical opinion of either a second opinion 
physician or an OWCP medical adviser or consultant, OWCP shall appoint 
a third physician to make an examination. This is called a referee 
examination. OWCP will select a physician who is qualified in the 
appropriate specialty and who has had no prior connection with the 
case. The employee is not entitled to have anyone present at the 
examination unless OWCP decides that exceptional circumstances exist. 
For example, where a hearing-impaired employee needs an interpreter, 
the presence of an interpreter would be allowed. Also, a case file may 
be sent for referee medical review where there is no need for an actual 
examination, or where the employee is deceased.


Sec. 30.412  Who pays for second opinion and referee examinations?

    OWCP will pay second opinion and referee medical specialists 
directly. OWCP will reimburse the employee all necessary and reasonable 
expenses incident to such an examination, including transportation 
costs and actual wages lost for the time needed to submit to an 
examination required by OWCP.

Medical Reports


Sec. 30.415  What are the requirements for medical reports?

    In all cases reported to OWCP, a medical report from the attending 
physician is required. This report should include:
    (a) Dates of examination and treatment;
    (b) History given by the employee;
    (c) Physical findings;
    (d) Results of diagnostic tests;
    (e) Diagnosis;
    (f) Course of treatment;
    (g) A description of any other conditions found due to the claimed 
occupational illness;
    (h) The treatment given or recommended for the claimed occupational 
illness; and
    (i) All other material findings.


Sec. 30.416  How and when should the medical report be submitted?

    (a) The initial medical report (and any subsequent reports) should 
be made in narrative form on the physician's letterhead stationery. The 
physician should use the EE-7 as a guide for the preparation of his or 
her initial medical report. The report should bear the physician's 
signature or signature stamp. OWCP may require an original signature on 
the report.
    (b) The report shall be submitted directly to OWCP as soon as 
possible after medical examination or treatment is received, either by 
the employee or the physician.

[[Page 28975]]

Sec. 30.417  What additional medical information may OWCP require to 
support continuing payment of benefits?

    In all cases requiring hospital treatment or prolonged care, OWCP 
will request detailed narrative reports from the attending physician at 
periodic intervals. The physician will be asked to describe continuing 
medical treatment for the occupational illness accepted by OWCP, a 
prognosis, and the physician's opinion as to the continuing causal 
relationship between the need for additional treatment and the covered 
occupational illness.

Medical Bills


Sec. 30.420  How are medical bills submitted?

    Usually, medical providers submit bills directly for processing. 
The rules for submitting and processing bills are stated in subpart H 
of this part. An employee claiming reimbursement of medical expenses 
should submit an itemized bill as described in Sec. 30.702.


Sec. 30.421  What are the time frames for submitting bills?

    To be considered for payment, bills must be submitted by the end of 
the calendar year after the year when the expense was incurred, or by 
the end of the calendar year after the year when OWCP first accepted 
the claim as compensable, whichever is later.


Sec. 30.422  If OWCP reimburses an employee only partially for a 
medical expense, must the provider refund the balance of the amount 
paid to the employee?

    (a) The OWCP fee schedule sets maximum limits on the amounts 
payable for many services. The employee may be only partially 
reimbursed for medical expenses because the amount he or she paid to 
the medical provider for a service exceeds the maximum allowable charge 
set by the OWCP fee schedule.
    (b) If this happens, OWCP shall advise the employee of the maximum 
allowable charge for the service in question and of his or her 
responsibility to ask the provider to refund to the employee, or credit 
to the employee's account, the amount he or she paid that exceeds the 
maximum allowable charge. The provider may request reconsideration of 
the fee determination as set forth in Sec. 30.712.
    (c) If the provider does not refund to the employee or credit to 
his or her account the amount of money paid in excess of the charge 
that OWCP allows, the employee should submit documentation of the 
attempt to obtain such refund or credit to OWCP. OWCP may authorize 
reasonable reimbursement to the employee after reviewing the facts and 
circumstances of the case.

Subpart F--Survivors; Payments and Offsets; Overpayments Survivors


Sec. 30.500  What special statutory definitions apply to survivors 
under the EEOICPA?

    (a) EEOICPA provides that the classes of individuals listed as 
eligible ``survivors'' in section 8133 of title 5, United States Code, 
may also be eligible survivors under the EEOICPA. Those classes of 
individuals are specified in Sec. 30.5(ee) of these regulations.
    (b) EEOICPA adopts the order of precedence and proportions to be 
afforded to survivors as set forth in section 8109 of title 5, United 
States Code (see Sec. 30.501).


Sec. 30.501  How will OWCP apply that order of precedence to determine 
what survivors are entitled to receive under the EEOICPA?

    If OWCP determines that survivors are entitled to receive 
compensation under EEOICPA because a covered employee who would 
otherwise have been entitled to benefits is deceased, that compensation 
will be disbursed as follows, subject to the qualifications set forth 
in Sec. 30.5(ee)(2) of these regulations:
    (a) If there is no child, all to the widow or widower.
    (b) If there are both a widow or widower and a child or children, 
one-half to the widow or widower and one-half to the child or children 
in equal shares.
    (c) If there is no widow or widower, to the child or children in 
equal shares.
    (d) If there is no survivor in the above classes, to the wholly or 
partly dependent parent or parents, and wholly dependent brother, 
sister, grandparent, or grandchild, in equal shares.


Sec. 30.502  When is entitlement for survivors determined for purposes 
of EEOICPA?

    Entitlement to any lump-sum payment for survivor(s) under the 
EEOICPA will be determined as of the date of death of the covered 
employee.

Payment of Claims and Offset for Certain Payments


Sec. 30.505  What are the procedures for payment of claims?

    (a) Except with respect to claims related to beryllium sensitivity, 
payment shall be made to the claimant, or to the legal guardian of the 
claimant, unless the claimant is deceased at the time of the payment. 
In cases involving a claimant who is deceased, payment shall be made to 
an eligible surviving beneficiary, or to the legal guardian acting on 
behalf of the eligible surviving beneficiary, in accordance with the 
terms and conditions specified in section 3628(e) of the EEOICPA.
    (b) In cases involving the approval of a claim, OWCP shall take all 
necessary and appropriate steps to determine the correct amount of any 
offset to be made to the amount awarded under the EEOICPA, and to 
verify the identity of the claimant or the existence of any eligible 
surviving beneficiaries who allege to be entitled by the EEOICPA to 
receive all or part of the payment the claimant would have received. 
OWCP may conduct any investigation, require any claimant or eligible 
surviving beneficiary to provide or execute any affidavit, record, or 
document, or authorize the release of any information as OWCP deems 
necessary to ensure that the compensation payment is made in the 
correct amount and to the correct person(s). If the claimant or 
eligible surviving beneficiary fails or refuses to execute an affidavit 
or release of information, or provide a requested record or document, 
or fails to provide access to information, such failure or refusal may 
be deemed to be a rejection of the payment, unless the claimant or 
eligible surviving beneficiary of the claimant does not have and cannot 
obtain the legal authority to provide, release, or authorize access to 
the required information, records, or documents.
    (c) Prior to authorizing payment, OWCP shall require the claimant 
or each eligible surviving beneficiary of a claim filed under these 
regulations to execute and provide an affidavit (or declaration under 
oath on the standard claim form) setting forth the amount of any 
payment made pursuant to a final award or settlement on a claim (other 
than a claim for workers' compensation), against any person, that is 
based on injuries incurred by the claimant for which his/her claim 
under the EEOICPA was submitted. For purposes of this subsection, a 
``claim'' includes, but is not limited to, any request or demand for 
money made or sought in a civil action, or made or sought in 
anticipation of the filing of a civil action, but shall not include 
requests or demands made pursuant to a life insurance or health 
insurance contract. If any such award or settlement payment was made, 
OWCP shall subtract the sum of such award or settlement payments from 
the payment to be made under the EEOICPA. Prior to authorizing payment, 
OWCP shall also require the claimant or each surviving beneficiary to 
execute and provide any necessary affidavit described in Sec. 30.617 of 
these regulations.

[[Page 28976]]

    (d) Except as provided in paragraph (e) of this section, when OWCP 
has verified the identity of the claimant or each eligible surviving 
beneficiary who is entitled to the compensation payment, or to a share 
of the compensation payment, and determined the correct amount of the 
payment or the share of the payment, OWCP shall notify the claimant or 
each eligible surviving beneficiary, or his/her legal guardian, and 
require such person(s) to sign an Acceptance of Payment Form. Such form 
shall be signed and returned within sixty days of the date of the form 
or such greater period as may be allowed by OWCP. Failure to return the 
signed form within the required time may be deemed to be a rejection of 
the payment. Signing and returning the form within the required time 
shall constitute acceptance of the payment, unless the individual who 
has signed the form dies prior to receiving the actual payment, in 
which case the person who possesses the payment shall return it to OWCP 
for redetermination of the correct disbursement of the payment. No 
payment shall be made until OWCP has made a determination concerning 
the survivors related to a respective claim for benefits.
    (e) Compensation for consequential illness or disease is limited to 
payment of medical benefits for that illness or disease.
    (f) Rejected compensation payments, or shares of compensation 
payments, shall not be distributed to other eligible surviving 
beneficiaries, but shall be returned to the Fund for use in paying 
other claims.
    (g) Upon receipt of the Acceptance of Payment Form, OWCP shall 
authorize the appropriate authorities to issue a check to the claimant 
or each surviving eligible beneficiary who has accepted payment out of 
the funds appropriated for this purpose.
    (h) Multiple payments:
    (1) No claimant may receive more than one lump-sum payment under 
these regulations for any occupational illnesses he or she contracted. 
However, he or she may also receive one lump-sum payment for each 
claimant for whom he or she qualifies as an eligible surviving 
beneficiary.
    (2) An eligible surviving beneficiary, who is not also a claimant, 
may receive one lump-sum payment for each claimant for whom he or she 
qualifies as an eligible surviving beneficiary.


Sec. 30.506  What compensation will be provided to claimants who only 
establish beryllium sensitivity?

    A covered employee whose sole occupational illness is beryllium 
sensitivity shall receive beryllium sensitivity monitoring. The 
establishment of beryllium sensitivity does not entitle the covered 
employee to any lump-sum payment or other medical benefits provided for 
under the EEOICPA.


Sec. 30.507  What is beryllium sensitivity monitoring?

    Beryllium sensitivity monitoring shall consist of medical 
examinations to confirm and monitor the extent and nature of the 
individual's beryllium sensitivity. Monitoring shall also include 
regular medical examinations, including diagnostic testing to determine 
whether the individual has established chronic beryllium disease.

Overpayments


Sec. 30.510  How does OWCP notify an individual of a payment made on a 
claim?

    (a) In addition to providing narrative descriptions to recipients 
of benefits paid or payable, OWCP includes on each check a clear 
indication of the reason the payment is being made. For payments sent 
by electronic funds transfer (EFT), a notification of the date and 
amount of payment appears on the statement from the recipient's 
financial institution.
    (b) By these means, OWCP puts the recipient on notice that a 
payment was made and the amount of the payment. If the amount received 
differs from the amount indicated on the written notice or bank 
statement, the recipient is responsible for notifying OWCP of the 
difference. Absent affirmative evidence to the contrary, the 
beneficiary will be presumed to have received the notice of payment, 
whether mailed or transmitted electronically.


Sec. 30.511  What is an ``overpayment'' for purposes of the EEOICPA?

    An ``overpayment'' is any amount of compensation paid under 
sections 3628(a)(1) or 3630(a) of the EEOICPA to a recipient that 
constitutes:
    (a) Payment where no amount is payable under this part; or
    (b) Payment in excess of the correct amount determined by OWCP.


Sec. 30.512  How does OWCP determine that a beneficiary owes a debt as 
the result of the creation of an overpayment?

    OWCP will notify the beneficiary of the existence and amount of any 
overpayment, and request the beneficiary to voluntarily return the 
overpaid amount or provide OWCP with evidence and/or argument 
contesting the existence or amount of an overpayment. Within 30 days of 
the issuance of such notification, a beneficiary who believes that OWCP 
made a mistake in determining the fact or amount of an overpayment may 
submit written comments and documentation in support of his or her 
position contesting the existence or amount of such overpayment to 
OWCP. After considering any written documentation or argument submitted 
to OWCP within the 30-day period, OWCP will issue a determination on 
the question of whether a debt is owed to OWCP. If OWCP determines that 
a debt is owed by the beneficiary, it will forward a copy of that 
determination to the beneficiary and advise him or her that unless the 
debt is voluntarily repaid it will pursue collection of the overpayment 
through DOL's debt collection procedures found at 29 CFR part 20.


Sec. 30.513  How are overpayments collected?

    The overpaid individual shall refund to OWCP the amount of the 
overpayment as soon as possible. The overpayment is subject to the 
provisions of the Federal Claims Collection Act of 1966 (as amended) 
and may be reported to the Internal Revenue Service as income. If the 
individual fails to make such refund, OWCP may recover the same through 
any available means, including offset of salary, annuity benefits, or 
other Federal payments, including tax refunds as authorized by the Tax 
Refund Offset Program, or referral of the debt to a collection agency 
or to the Department of Justice.

Subpart G--Special Provisions

Representation


Sec. 30.600  May a claimant designate a representative?

    (a) The claims process under this part is informal, and OWCP acts 
as an impartial evaluator of the evidence. A claimant need not be 
represented to file a claim or receive a payment. Nevertheless, a 
claimant may appoint one individual to represent his or her interests, 
but the appointment must be in writing.
    (b) There can be only one representative at any one time, so after 
one representative has been properly appointed, OWCP will not recognize 
another individual as representative until the claimant withdraws the 
authorization of the first individual. In addition, OWCP will recognize 
only certain types of individuals (see Sec. 30.601).
    (c) A properly appointed representative who is recognized by OWCP 
may make a request or give direction to OWCP regarding the claims 
process, including a hearing. This

[[Page 28977]]

authority includes presenting or eliciting evidence, making arguments 
on facts or the law, and obtaining information from the case file, to 
the same extent as the claimant. Any notice requirement contained in 
this part or the EEOICPA is fully satisfied if served on the 
representative, and has the same force and effect as if sent to the 
claimant.


Sec. 30.601  Who may serve as a representative?

    A claimant may authorize any individual to represent him or her in 
regard to a claim under the EEOICPA, unless that individual's service 
as a representative would violate any applicable provision of law (such 
as 18 U.S.C. 205 and 208). A federal employee may act as a 
representative only:
    (a) On behalf of immediate family members, defined as a spouse, 
children, parents, and siblings of the representative, provided no fee 
or gratuity is charged; or
    (b) While acting as a union representative, defined as any 
officially sanctioned union official, and no fee or gratuity is 
charged.


Sec. 30.602  Who is responsible for paying the representative's fee?

    A representative may charge the claimant a fee for services and for 
costs associated with the representation before OWCP. The claimant is 
solely responsible for paying the fee and other costs. OWCP will not 
reimburse the claimant, nor is it in any way liable for the amount of 
the fee and costs.

Third Party Liability


Sec. 30.605  What rights does the United States have upon payment of 
compensation under the EEOICPA?

    If an illness for which compensation is payable under the EEOICPA 
is caused, wholly or partially, by someone other than a federal 
employee acting within the scope of his or her employment, a DOE 
contractor, or subcontractor, a beryllium vendor or atomic weapons 
employer, the United States is subrogated for the full amount of any 
payment of compensation under the EEOICPA to any right or claim that 
the individual to whom the payment was made may have against any person 
or entity on account of such illness.


Sec. 30.606  Under what circumstances must a recovery of money or other 
property in connection with an illness for which benefits are payable 
under the EEOICPA be reported to OWCP?

    Any person who has filed an EEOICPA claim that has been accepted by 
OWCP (whether or not compensation has been paid), or who has received 
EEOICPA benefits in connection with a claim filed by another, is 
required to notify OWCP of the receipt of money or other property as a 
result of a settlement or judgment in connection with the circumstances 
of that claim.


Sec. 30.607  How is a structured settlement (that is, a settlement 
providing for receipt of funds over a specified period of time) treated 
for purposes of reporting the recovery?

    In this situation, the recovery to be reported is the present value 
of the right to receive all of the payments included in the structured 
settlement, allocated in the case of multiple recipients in the same 
manner as single payment recoveries.


Sec. 30.608  How does the United States calculate the amount to which 
it is subrogated?

    The subrogated amount of a specific claim consists of the total 
money paid by OWCP from the Energy Employees Occupational Illness 
Compensation Fund with respect to that claim to or on behalf of an 
employee or eligible surviving beneficiary, less charges for any 
medical file review (i.e., the physician does not examine the employee) 
done at the request of OWCP. Charges for medical examinations also may 
be subtracted if the employee or eligible surviving beneficiary 
establishes that the examinations were required to be made available to 
the employee under a statute other than the EEOICPA.


Sec. 30.609  Is a settlement or judgment received as a result of 
allegations of medical malpractice in treating an illness covered by 
the EEOICPA a recovery that must be reported to OWCP?

    Since an injury caused by medical malpractice in treating an 
illness covered by the EEOICPA is also covered under the EEOICPA, any 
recovery in a suit alleging such an injury is treated as a recovery 
that must be reported to OWCP.


Sec. 30.610  Are payments to an employee or eligible surviving 
beneficiary as a result of an insurance policy which the employee or 
eligible surviving beneficiary has purchased a recovery that must be 
reported to OWCP?

    Since payments received by an employee or eligible surviving 
beneficiary pursuant to an insurance policy purchased by someone other 
than a liable third party are not payments in satisfaction of liability 
for causing an illness covered by the EEOICPA, they are not considered 
a recovery that must be reported to OWCP.


Sec. 30.611  If a settlement or judgment is received for more than one 
medical condition, can the amount paid on a single EEOICPA claim be 
attributed to different conditions for purposes of calculating the 
amount to which the United States is subrogated?

    (a) All medical conditions accepted by OWCP in connection with a 
single claim are treated as the same illness for the purpose of 
computing the amount to which the United States is subrogated in 
connection with the receipt of a recovery from a third party, except 
that an injury caused by medical malpractice in treating an illness 
covered under the EEOICPA will be treated as a separate injury.
    (b) If an illness covered under the EEOICPA is caused under 
circumstances creating a legal liability in more than one person, other 
than the United States, a DOE contractor or subcontractor, a beryllium 
vendor or an atomic weapons employer, to pay damages, OWCP will 
determine whether recoveries received from one or more third parties 
should be attributed to separate conditions for which compensation is 
payable in connection with a single EEOICPA claim. If such an 
attribution is both practicable and equitable, as determined by OWCP, 
in its discretion, the conditions will be treated as separate injuries 
for purposes of calculating the amount to which the United States is 
subrogated.

Election of Remedy Against Beryllium Vendors and Atomic Weapons 
Employers


Sec. 30.615  Can a claimant receive benefits under the EEOICPA if he or 
she filed a tort suit against either a beryllium vendor or an atomic 
weapons employer on or prior to October 30, 2000?

    A claimant who filed a tort suit against either a beryllium vendor 
or an atomic weapons employer on or prior to October 30, 2000, shall 
not be eligible to receive benefits under subtitle B of the EEOICPA 
unless he or she dismisses such suit no later than December 31, 2003.


Sec. 30.616  Can a claimant receive benefits under the EEOICPA if he or 
she filed a tort suit against either a beryllium vendor or an atomic 
weapons employer after October 30, 2000?

    (a) Unless a tort suit filed under paragraphs (b) and (c) of this 
section is dismissed prior to the time limitations described in those 
subsections, the plaintiff shall not be eligible to receive benefits 
under subtitle B of the EEOICPA.
    (b) If a claimant files a tort suit against either a beryllium 
vendor or an atomic weapons employer after October 30,

[[Page 28978]]

2000, such a suit must be filed by the later of:
    (1) April 30, 2003; or
    (2) 30 months after the date the plaintiff first became aware that 
his or her illness may be connected to the exposure covered by subtitle 
B of the EEOICPA.
    (c) For purposes of this section only, ``the date the plaintiff 
first became aware'' will be deemed to be the date he or she received 
either a reconstructed dose from the HHS, or a diagnosis of a covered 
beryllium illness, as applicable.
    (d) If a claimant files a tort suit against either a beryllium 
vendor or an atomic weapons employer after the later of the dates 
described in paragraphs (b) and (c) of this section, he or she is not 
entitled to any benefits under subtitle B of the EEOICPA.


Sec. 30.617  How will OWCP ascertain whether a claimant filed a tort 
suit against either a beryllium vendor or an atomic weapons employer 
and whether such claimant is entitled to benefits under the EEOICPA?

    Prior to authorizing any payment on a claim under Sec. 30.505 of 
these regulations, OWCP will require the claimant or each surviving 
beneficiary to execute and provide an affidavit stating whether he or 
she filed a tort suit against either a beryllium vendor or an atomic 
weapons employer, and if so, the date such tort suit was dismissed. 
OWCP may require the submission of such supporting evidence as may be 
necessary to confirm the particulars of any affidavit provided under 
this section.

Subpart H--Information for Medical Providers

Medical Records and Bills


Sec. 30.700  What kinds of medical records must providers keep?

    Federal government medical officers, private physicians and 
hospitals are required to keep records of all cases treated by them 
under the EEOICPA so they can supply OWCP with a history of the claimed 
occupational illness, a description of the nature and extent of the 
claimed occupational illness, the results of any diagnostic studies 
performed, and the nature of the treatment rendered.


Sec. 30.701  How are medical bills to be submitted?

    (a) All charges for medical and surgical treatment, appliances or 
supplies furnished to employees, except for treatment and supplies 
provided by nursing homes, shall be supported by medical evidence as 
provided in Sec. 30.700. The physician or provider shall itemize the 
charges on the standard Health Insurance Claim Form, HCFA 1500 or OWCP 
1500 (for professional charges), the UB-92 (for hospitals), the 
Universal Claim Form (for pharmacies), or other form as warranted, and 
submit the form promptly for processing.
    (b) The provider shall identify each service performed using the 
Physician's Current Procedural Terminology (CPT) code, the Health Care 
Financing Administration Common Procedure Coding System (HCPCS) code, 
the National Drug Code (NDC), or the Revenue Center Code (RCC), with a 
brief narrative description. Where no code is applicable, a detailed 
description of services performed should be provided.
    (c) The provider shall also state each diagnosed condition and 
furnish the corresponding diagnostic code using the ``International 
Classification of Disease, 9th Edition, Clinical Modification'' (ICD-9-
CM), or as revised. A separate bill shall be submitted when the 
employee is discharged from treatment or monthly, if treatment for the 
occupational illness is necessary for more than 30 days.
    (1)(i) Hospitals shall submit charges for medical and surgical 
treatment or supplies promptly on the UB-92. The provider shall 
identify each outpatient radiology service, outpatient pathology 
service and physical therapy service performed, using HCPCS/CPT codes 
with a brief narrative description. The charge for each individual 
service, or the total charge for all identical services, should also 
appear in the UB-92.
    (ii) Other outpatient hospital services for which HCPCS/CPT codes 
exist shall also be coded individually using the coding scheme noted in 
this section. Services for which there are no HCPCS/CPT codes available 
can be presented using the RCCs described in the ``National Uniform 
Billing Data Elements Specifications,'' current edition. The provider 
shall also furnish the diagnostic code using the ICD-9-CM. If the 
outpatient hospital services include surgical and/or invasive 
procedures, the provider shall code each procedure using the proper 
CPT/HCPCS codes and furnishing the corresponding diagnostic codes using 
the ICD-9-CM.
    (2) Pharmacies shall itemize charges for prescription medications, 
appliances, or supplies on the Universal Claim Form and submit them 
promptly for processing. Bills for prescription medications must 
include the NDC assigned to the product, the generic or trade name of 
the drug provided, the prescription number, the quantity provided, and 
the date the prescription was filled.
    (3) Nursing homes shall itemize charges for appliances, supplies or 
services on the provider's billhead stationery and submit them promptly 
for processing.
    (d) By submitting a bill and/or accepting payment, the provider 
signifies that the service for which reimbursement is sought was 
performed as described and was necessary. In addition, the provider 
thereby agrees to comply with all regulations set forth in this subpart 
concerning the rendering of treatment and/or the process for seeking 
reimbursement for medical services, including the limitation imposed on 
the amount to be paid for such services.
    (e) In summary, bills submitted by providers must: be itemized on 
the Health Insurance Claim Form (for physicians), the UB-92 (for 
hospitals), or the Universal Claim Form (for pharmacies); contain the 
signature or signature stamp of the provider; and identify the 
procedures using HCPCS/CPT codes, RCCs, or NDCs. Otherwise, the bill 
may be returned to the provider for correction and resubmission.


Sec. 30.702  How should an employee prepare and submit requests for 
reimbursement for medical expenses, transportation costs, loss of 
wages, and incidental expenses?

    (a) If an employee has paid bills for medical, surgical or other 
services, supplies or appliances due to an occupational illness, he or 
she may submit an itemized bill on the Health Insurance Claim Form, 
HCFA 1500 or OWCP 1500, together with a medical report as provided in 
Sec. 30.700, for consideration.
    (1) The provider of such service shall state each diagnosed 
condition and furnish the applicable ICD-9-CM code and identify each 
service performed using the applicable HCPCS/CPT code, with a brief 
narrative description of the service performed, or, where no code is 
applicable, a detailed description of that service.
    (2) The bill must be accompanied by evidence that the provider 
received payment for the service from the employee and a statement of 
the amount paid. Acceptable evidence that payment was received 
includes, but is not limited to, a signed statement by the provider, a 
mechanical stamp or other device showing receipt of payment, a copy of 
the employee's canceled check (both front and back) or a copy of the 
employee's credit card receipt.
    (b) If a hospital, pharmacy or nursing home provided services, the 
employee should submit the bill in accordance with the provisions of 
Sec. 30.701(a). Any request for reimbursement must be accompanied by 
evidence, as described

[[Page 28979]]

in paragraph (a) of this section, that the provider received payment 
for the service from the employee and a statement of the amount paid.
    (c) The requirements of paragraphs (a) and (b) of this section may 
be waived if extensive delays in the filing or the adjudication of a 
claim make it unusually difficult for the employee to obtain the 
required information.
    (d) Copies of bills submitted for reimbursement will not be 
accepted unless they bear the original signature of the provider, with 
evidence of payment. Payment for medical and surgical treatment, 
appliances or supplies shall in general be no greater than the maximum 
allowable charge for such service determined by OWCP, as set forth in 
Sec. 30.705.
    (e) An employee will be only partially reimbursed for a medical 
expense if the amount he or she paid to a provider for the service 
exceeds the maximum allowable charge set by OWCP's schedule. If this 
happens, OWCP will advise the employee of the maximum allowable charge 
for the service in question and of his or her responsibility to ask the 
provider to refund to the employee, or credit to the employee's 
account, the amount he or she paid which exceeds the maximum allowable 
charge. The provider may request reconsideration of the fee 
determination as set forth in Sec. 30.712.
    (f) If the provider fails to make appropriate refund to the 
employee, or to credit the employee's account, within 60 days after the 
employee requests a refund of any excess amount, or the date of a 
subsequent reconsideration decision which continues to disallow all or 
a portion of the appealed amount, OWCP will initiate exclusion 
procedures as provided by Sec. 30.715.
    (g) If the provider does not refund to the employee or credit to 
his or her account the amount of money paid in excess of the allowed 
charge, the employee should submit documentation of the attempt to 
obtain such refund or credit to OWCP. OWCP may authorize reasonable 
reimbursement to the employee after reviewing the facts and 
circumstances of the case.


Sec. 30.703  What are the time limitations on OWCP's payment of bills?

    OWCP will pay providers and reimburse employees promptly for all 
bills received on an approved form and in a timely manner. However, no 
bill will be paid for expenses incurred if the bill is submitted more 
than one year beyond the end of the calendar year in which the expense 
was incurred or the service or supply was provided, or more than one 
year beyond the end of the calendar year in which the claim was first 
accepted as compensable by OWCP, whichever is later.

Medical Fee Schedule


Sec. 30.705  What services are covered by the OWCP fee schedule?

    (a) Payment for medical and other health services furnished by 
physicians, hospitals and other providers for occupational illnesses 
shall not exceed a maximum allowable charge for such service as 
determined by OWCP, except as provided in this section.
    (b) The schedule of maximum allowable charges does not apply to 
charges for services provided in nursing homes, but it does apply to 
charges for treatment furnished in a nursing home by a physician or 
other medical professional.
    (c) The schedule of maximum allowable charges also does not apply 
to charges for appliances, supplies, services or treatment furnished by 
medical facilities of the U.S. Public Health Service or the Departments 
of the Army, Navy, Air Force and Veterans Affairs.


Sec. 30.706  How are the maximum fees defined?

    For professional medical services, OWCP shall maintain a schedule 
of maximum allowable fees for procedures performed in a given locality. 
The schedule shall consist of: an assignment of a value to procedures 
identified by HCPCS/CPT code which represents the relative skill, 
effort, risk and time required to perform the procedure, as compared to 
other procedures of the same general class; an index based on a 
relative value scale that considers skill, labor, overhead, malpractice 
insurance and other related costs; and a monetary value assignment 
(conversion factor) for one unit of value in each of the categories of 
service.


Sec. 30.707  How are payments for particular services calculated?

    Payment for a procedure identified by a HCPCS/CPT code shall not 
exceed the amount derived by multiplying the relative values for that 
procedure by the geographic indices for services in that area and by 
the dollar amount assigned to one unit in that category of service.
    (a) The ``locality'' which serves as a basis for the determination 
of average cost is defined by the Bureau of Census Metropolitan 
Statistical Areas. OWCP shall base the determination of the relative 
per capita cost of medical care in a locality using information about 
enrollment and medical cost per county, provided by the Health Care 
Financing Administration (HCFA).
    (b) OWCP shall assign the relative value units (RVUs) published by 
HCFA to all services for which HCFA has made assignments, using the 
most recent revision. Where there are no RVUs assigned to a procedure, 
OWCP may develop and assign any RVUs considered appropriate. The 
geographic adjustment factor shall be that designated by Geographic 
Practice Cost Indices for Metropolitan Statistical Areas as devised for 
HCFA and as updated or revised by HCFA from time to time. OWCP will 
devise conversion factors for each category of service, and in doing so 
may adapt HCFA conversion factors as appropriate using OWCP's 
processing experience and internal data.
    (c) For example, if the unit values for a particular surgical 
procedure are 2.48 for physician's work (W), 3.63 for practice expense 
(PE), and 0.48 for malpractice insurance (M), and the dollar value 
assigned to one unit in that category of service (surgery) is $61.20, 
then the maximum allowable charge for one performance of that procedure 
is the product of the three RVUs times the corresponding geographical 
indices for the locality times the conversion factor. If the geographic 
indices for the locality are 0.988(W), 0.948 (PE), and 1.174 (M), then 
the maximum payment calculation is:

[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)]  x  $61.20
[2.45 + 3.44 + .56]  x  $61.20
6.45  x  $61.20 = $394.74


Sec. 30.708  Does the fee schedule apply to every kind of procedure?

    Where the time, effort and skill required to perform a particular 
procedure vary widely from one occasion to the next, OWCP may choose 
not to assign a relative value to that procedure. In this case the 
allowable charge for the procedure will be set individually based on 
consideration of a detailed medical report and other evidence. At its 
discretion, OWCP may set fees without regard to schedule limits for 
specially authorized consultant examinations, for directed medical 
examinations, and for other specially authorized services.


Sec. 30.709  How are payments for medicinal drugs determined?

    Payment for medicinal drugs prescribed by physicians shall not 
exceed the amount derived by multiplying the average wholesale price of 
the medication by the quantity or amount provided, plus a dispensing 
fee.
    (a) All prescription medications identified by National Drug Code 
(NDC) will be assigned an average wholesale price representing the 
product's

[[Page 28980]]

nationally recognized wholesale price as determined by surveys of 
manufacturers and wholesalers. OWCP will establish the dispensing fee.
    (b) The NDCs, the average wholesale prices, and the dispensing fee 
shall be reviewed from time to time and updated as necessary.


Sec. 30.710  How are payments for inpatient medical services 
determined?

    (a) OWCP will pay for inpatient medical services according to pre-
determined, condition-specific rates based on the Prospective Payment 
System (PPS) devised by HCFA (42 CFR parts 412, 413, 424, 485, and 
489). Using this system, payment is derived by multiplying the 
diagnosis-related group (DRG) weight assigned to the hospital discharge 
by the provider-specific factors.
    (1) All hospital discharges will be classified according to the 
DRGs prescribed by the HCFA in the form of the DRG Grouper software 
program. On this list, each DRG represents the average resources 
necessary to provide care in a case in that DRG relative to the 
national average of resources consumed per case.
    (2) The provider-specific factors will be provided by HCFA in the 
form of their PPS Pricer software program. The software takes into 
consideration the type of facility, census division, actual geographic 
location (MSA) of the hospital, case mix cost per discharge, number of 
hospital beds, intern/beds ratio, operating cost to charge ratio, and 
other factors used by HCFA to determine the specific rate for a 
hospital discharge under their PPS. OWCP may devise price adjustment 
factors as appropriate using OWCP's processing experience and internal 
data.
    (3) OWCP will base payments to facilities excluded from HCFA's PPS 
on consideration of detailed medical reports and other evidence.
    (4) OWCP shall review the pre-determined hospital rates at least 
once a year, and may adjust any or all components when OWCP deems it 
necessary or appropriate.
    (b) OWCP shall review the schedule of fees at least once a year, 
and may adjust the schedule or any of its components when OWCP deems it 
necessary or appropriate.


Sec. 30.711  When and how are fees reduced?

    (a) OWCP shall accept a provider's designation of the code to 
identify a billed procedure or service if the code is consistent with 
medical reports and other evidence. Where no code is supplied, OWCP may 
determine the code based on the narrative description of the procedure 
on the billing form and in associated medical reports. OWCP will pay no 
more than the maximum allowable fee for that procedure.
    (b) If the charge submitted for a service supplied to an employee 
exceeds the maximum amount determined to be reasonable according to the 
schedule, OWCP shall pay the amount allowed by the schedule for that 
service and shall notify the provider in writing that payment was 
reduced for that service in accordance with the schedule. OWCP shall 
also notify the provider of the method for requesting reconsideration 
of the balance of the charge.


Sec. 30.712  If OWCP reduces a fee, may a provider request 
reconsideration of the reduction?

    (a) A physician or other provider whose charge for service is only 
partially paid because it exceeds a maximum allowable amount set by 
OWCP may, within 30 days, request reconsideration of the fee 
determination.
    (1) The provider should make such a request to the district office 
with jurisdiction over the employee's claim. The request must be 
accompanied by documentary evidence that the procedure performed was 
incorrectly identified by the original code, that the presence of a 
severe or concomitant medical condition made treatment especially 
difficult, or that the provider possessed unusual qualifications. In 
itself, board certification in a specialty is not sufficient evidence 
of unusual qualifications to justify an exception. These are the only 
three circumstances that will justify reevaluation of the paid amount.
    (2) A list of district offices and their respective areas of 
jurisdiction is available upon request from the U.S. Department of 
Labor, Office of Workers' Compensation Programs, Washington, DC 20210, 
or from OWCP's home page on the Internet at www.dol.gov/dol/esa/public/owcp_org.htm. Within 30 days of receiving the request for 
reconsideration, the district office shall respond in writing stating 
whether or not an additional amount will be allowed as reasonable, 
considering the evidence submitted.
    (b) If the district office issues a decision that continues to 
disallow a contested amount, the provider may apply to the Regional 
Director of the region with jurisdiction over the district office. The 
application must be filed within 30 days of the date of such decision, 
and it may be accompanied by additional evidence. Within 60 days of 
receipt of such application, the Regional Director shall issue a 
decision in writing stating whether or not an additional amount will be 
allowed as reasonable, considering the evidence submitted.


Sec. 30.713  If OWCP reduces a fee, may a provider bill the employee 
for the balance?

    A provider whose fee for service is partially paid by OWCP as a 
result of the application of its fee schedule or other tests for 
reasonableness in accordance with this part shall not request 
reimbursement from the employee for additional amounts.
    (a) Where a provider's fee for a particular service or procedure is 
lower to the general public than as provided by the schedule of maximum 
allowable charges, the provider shall bill at the lower rate. A fee for 
a particular service or procedure which is higher than the provider's 
fee to the general public for that same service or procedure will be 
considered a charge ``substantially in excess of such provider's 
customary charges'' for the purposes of Sec. 30.715(d).
    (b) A provider whose fee for service is partially paid by OWCP as 
the result of the application of the schedule of maximum allowable 
charges and who collects or attempts to collect from the employee, 
either directly or through a collection agent, any amount in excess of 
the charge allowed by OWCP, and who does not cease such action or make 
appropriate refund to the employee within 60 days of the date of the 
decision of OWCP, shall be subject to the exclusion procedures provided 
by Sec. 30.715(h).

Exclusion of Providers


Sec. 30.715  What are the grounds for excluding a provider from payment 
under this part?

    A physician, hospital, or provider of medical services or supplies 
shall be excluded from payment under this part if such physician, 
hospital or provider has:
    (a) Been convicted under any criminal statute of fraudulent 
activities in connection with any federal or state program for which 
payments are made to providers for similar medical, surgical or 
hospital services, appliances or supplies;
    (b) Been excluded or suspended, or has resigned in lieu of 
exclusion or suspension, from participation in any federal or state 
program referred to in paragraph (a) of this section;
    (c) Knowingly made, or caused to be made, any false statement or 
misrepresentation of a material fact in connection with a determination 
of the right to reimbursement under this part, or in connection with a 
request for payment;

[[Page 28981]]

    (d) Submitted, or caused to be submitted, three or more bills or 
requests for payment within a 12-month period under this subpart 
containing charges which OWCP finds to be substantially in excess of 
such provider's customary charges, unless OWCP finds there is good 
cause for the bills or requests containing such charges;
    (e) Knowingly failed to timely reimburse employees for treatment, 
services or supplies furnished under this subpart and paid for by OWCP;
    (f) Failed, neglected or refused on three or more occasions during 
a 12-month period to submit full and accurate medical reports, or to 
respond to requests by OWCP for additional reports or information, as 
required by Sec. 30.700 of this part;
    (g) Knowingly furnished treatment, services or supplies which are 
substantially in excess of the employee's needs, or of a quality which 
fails to meet professionally recognized standards; or
    (h) Collected or attempted to collect from the employee, either 
directly or through a collection agent, an amount in excess of the 
charge allowed by OWCP for the procedure performed, and has failed or 
refused to make appropriate refund to the employee, or to cease such 
collection attempts, within 60 days of the date of the decision of 
OWCP.


Sec. 30.716  What will cause OWCP to automatically exclude a physician 
or other provider of medical services and supplies?

    (a) OWCP shall automatically exclude a physician, hospital, or 
provider of medical services or supplies who has been convicted of a 
crime described in Sec. 30.715(a), or has been excluded or suspended, 
or has resigned in lieu of exclusion or suspension, from participation 
in any program as described in Sec. 30.715(b).
    (b) The exclusion applies to participating in the program and to 
seeking payment under this part for services performed after the date 
of the entry of the judgment of conviction or order of exclusion, 
suspension or resignation, as the case may be, by the court or agency 
concerned. Proof of the conviction, exclusion, suspension or 
resignation may consist of a copy thereof authenticated by the seal of 
the court or agency concerned.


Sec. 30.717  When are OWCP's exclusion procedures initiated?

    Upon receipt of information indicating that a physician, hospital 
or provider of medical services or supplies (hereinafter the provider) 
has engaged in activities enumerated in paragraphs (c) through (h) of 
Sec. 30.715, the Regional Director, after completion of inquiries he or 
she deems appropriate, may initiate procedures to exclude the provider 
from participation in the EEOICPA program. For the purposes of these 
procedures, ``Regional Director'' may include any officer designated to 
act on his or her behalf.


Sec. 30.718  How is a provider notified of OWCP's intent to exclude him 
or her?

    The Regional Director shall initiate the exclusion process by 
sending the provider a letter, by certified mail and with return 
receipt requested, which shall contain the following:
    (a) A concise statement of the grounds upon which exclusion shall 
be based;
    (b) A summary of the information, with supporting documentation, 
upon which the Regional Director has relied in reaching an initial 
decision that exclusion proceedings should begin;
    (c) An invitation to the provider to:
    (1) Resign voluntarily from participation in the EEOICPA program 
without admitting or denying the allegations presented in the letter; 
or
    (2) Request that the decision on exclusion be based upon the 
existing record and any additional documentary information the provider 
may wish to furnish;
    (d) A notice of the provider's right, in the event of an adverse 
ruling by the Regional Director, to request a formal hearing before an 
administrative law judge;
    (e) A notice that should the provider fail to answer (as described 
in Sec. 30.719) the letter of intent within 30 calendar days of 
receipt, the Regional Director may deem the allegations made therein to 
be true and may order exclusion of the provider without conducting any 
further proceedings; and
    (f) The name and address of the OWCP representative who shall be 
responsible for receiving the answer from the provider.


Sec. 30.719  What requirements must the provider's reply and OWCP's 
decision meet?

    (a) The provider's answer shall be in writing and shall include an 
answer to OWCP's invitation to resign voluntarily. If the provider does 
not offer to resign, he or she shall request that a determination be 
made upon the existing record and any additional information provided.
    (b) Should the provider fail to answer the letter of intent within 
30 calendar days of receipt, the Regional Director may deem the 
allegations made therein to be true and may order exclusion of the 
provider.
    (c) By arrangement with the official representative, the provider 
may inspect or request copies of information in the record at any time 
prior to the Regional Director's decision.
    (d) The Regional Director shall issue his or her decision in 
writing, and shall send a copy of the decision to the provider by 
certified mail, return receipt requested. The decision shall advise the 
provider of his or her right to request, within 30 days of the date of 
the adverse decision, a formal hearing before an administrative law 
judge under the procedures set forth in Sec. 30.720. The filing of a 
request for a hearing within the time specified shall stay the 
effectiveness of the decision to exclude.


Sec. 30.720  How can an excluded provider request a hearing?

    A request for a hearing shall be sent to the official 
representative named under Sec. 30.718(f) and shall contain:
    (a) A concise notice of the issues on which the provider desires to 
give evidence at the hearing;
    (b) Any request for a more definite statement by OWCP;
    (c) Any request for the presentation of oral argument or evidence; 
and
    (d) Any request for a certification of questions concerning 
professional medical standards, medical ethics or medical regulation 
for an advisory opinion from a competent recognized professional 
organization or federal, state or local regulatory body.


Sec. 30.721  How are hearings assigned and scheduled?

    (a) If the designated OWCP representative receives a timely request 
for hearing, the OWCP representative shall refer the matter to the 
Chief Administrative Law Judge of the Department of Labor, who shall 
assign it for an expedited hearing. The administrative law judge 
assigned to the matter shall consider the request for hearing, act on 
all requests therein, and issue a Notice of Hearing and Hearing 
Schedule for the conduct of the hearing. A copy of the hearing notice 
shall be served on the provider by certified mail, return receipt 
requested. The Notice of Hearing and Hearing Schedule shall include:
    (1) A ruling on each item raised in the request for hearing;
    (2) A schedule for the prompt disposition of all preliminary 
matters, including requests for more definite statements and for the 
certification of questions to advisory bodies; and
    (3) A scheduled hearing date not less than 30 days after the date 
the schedule is issued, and not less than 15 days after the scheduled 
conclusion of preliminary matters, provided that the specific time and 
place of the hearing may be set on 10 days' notice.

[[Page 28982]]

    (b) The purpose of the designation of issues is to provide for an 
effective hearing process. The provider is entitled to be heard on any 
matter placed in issue by his or her response to the Notice of Intent 
to Exclude, and may designate ``all issues'' for purposes of hearing. 
However, a specific designation of issues is required if the provider 
wishes to interpose affirmative defenses or request the certification 
of questions for an advisory opinion.


Sec. 30.722  How are advisory opinions obtained?

    A certification of a request for an advisory opinion concerning 
professional medical standards, medical ethics or medical regulation to 
a competent recognized or professional organization or federal, state 
or local regulatory agency may be made:
    (a) As to an issue properly designated by the provider, in the 
sound discretion of the administrative law judge, provided that the 
request will not unduly delay the proceedings;
    (b) By OWCP on its own motion either before or after the 
institution of proceedings, and the results thereof shall be made 
available to the provider at the time that proceedings are instituted 
or, if after the proceedings are instituted, within a reasonable time 
after receipt. The opinion, if rendered by the organization or agency, 
is advisory only and not binding on the administrative law judge.


Sec. 30.723  How will the administrative law judge conduct the hearing 
and issue the recommended decision?

    (a) To the extent appropriate, proceedings before the 
administrative law judge shall be governed by 29 CFR part 18.
    (b) The administrative law judge shall receive such relevant 
evidence as may be adduced at the hearing. Evidence shall be presented 
under oath, orally or in the form of written statements. The 
administrative law judge shall consider the Notice and Response, 
including all pertinent documents accompanying them, and may also 
consider any evidence which refers to the provider or to any claim with 
respect to which the provider has provided medical services, hospital 
services, or medical services and supplies, and such other evidence as 
the administrative law judge may determine to be necessary or useful in 
evaluating the matter.
    (c) All hearings shall be recorded and the original of the complete 
transcript shall become a permanent part of the official record of the 
proceedings.
    (d) In conjunction with the hearing, the administrative law judge 
may:
    (1) Administer oaths; and
    (2) Examine witnesses.
    (e) At the conclusion of the hearing, the administrative law judge 
shall issue a written decision and cause it to be served on all parties 
to the proceeding, their representatives and OWCP.


Sec. 30.724  How can a party request review by OWCP of the 
administrative law judge's recommended decision?

    (a) Any party adversely affected or aggrieved by the decision of 
the administrative law judge may file a petition for discretionary 
review with the Director for Energy Employees Occupational Illness 
Compensation within 30 days after issuance of such decision. The 
administrative law judge's decision, however, shall be effective on the 
date issued and shall not be stayed except upon order of the Director.
    (b) Review by the Director for Energy Employees Occupational 
Illness Compensation shall not be a matter of right but of the sound 
discretion of the Director.
    (c) Petitions for discretionary review shall be filed only upon one 
or more of the following grounds:
    (1) A finding or conclusion of material fact is not supported by 
substantial evidence;
    (2) A necessary legal conclusion is erroneous;
    (3) The decision is contrary to law or to the duly promulgated 
rules or decisions of OWCP;
    (4) A substantial question of law, policy, or discretion is 
involved; or
    (5) A prejudicial error of procedure was committed.
    (d) Each issue shall be separately numbered and plainly and 
concisely stated, and shall be supported by detailed citations to the 
record when assignments of error are based on the record, and by 
statutes, regulations or principal authorities relied upon. Except for 
good cause shown, no assignment of error by any party shall rely on any 
question of fact or law upon which the administrative law judge had not 
been afforded an opportunity to pass.
    (e) A statement in opposition to the petition for discretionary 
review may be filed, but such filing shall in no way delay action on 
the petition.
    (f) If a petition is granted, review shall be limited to the 
questions raised by the petition.
    (g) A petition not granted within 20 days after receipt of the 
petition is deemed denied.


Sec. 30.725  What are the effects of non-automatic exclusion?

    (a) OWCP shall give notice of the exclusion of a physician, 
hospital or provider of medical services or supplies to:
    (1) All OWCP district offices;
    (2) The HCFA; and
    (3) All employees who are known to have had treatment, services or 
supplies from the excluded provider within the six-month period 
immediately preceding the order of exclusion.
    (b) Notwithstanding any exclusion of a physician, hospital, or 
provider of medical services or supplies under this subpart, OWCP shall 
not refuse an employee reimbursement for any otherwise reimbursable 
medical treatment, service or supply if:
    (1) Such treatment, service or supply was rendered in an emergency 
by an excluded physician; or
    (2) The employee could not reasonably have been expected to know of 
such exclusion.
    (c) An employee who is notified that his or her attending physician 
has been excluded shall have a new right to select a qualified 
physician.


Sec. 30.726  How can an excluded provider be reinstated?

    (a) If a physician, hospital, or provider of medical services or 
supplies has been automatically excluded pursuant to Sec. 30.716, the 
provider excluded will automatically be reinstated upon notice to OWCP 
that the conviction or exclusion which formed the basis of the 
automatic exclusion has been reversed or withdrawn. However, an 
automatic reinstatement shall not preclude OWCP from instituting 
exclusion proceedings based upon the underlying facts of the matter.
    (b) A physician, hospital, or provider of medical services or 
supplies excluded from participation as a result of an order issued 
pursuant to this subpart may apply for reinstatement one year after the 
entry of the order of exclusion, unless the order expressly provides 
for a shorter period. An application for reinstatement shall be 
addressed to the Director for Energy Employees Occupational Illness 
Compensation, and shall contain a concise statement of the basis for 
the application. The application should be accompanied by supporting 
documents and affidavits.
    (c) A request for reinstatement may be accompanied by a request for 
oral argument. Oral argument will be allowed only in unusual 
circumstances where it will materially aid the decision process.
    (d) The Director for Energy Employees Occupational Illness 
Compensation shall order reinstatement only in instances where such 
reinstatement is clearly consistent with the goal of this subpart to 
protect the EEOICPA program

[[Page 28983]]

against fraud and abuse. To satisfy this requirement the provider must 
provide reasonable assurances that the basis for the exclusion will not 
be repeated.

    Signed at Washington, DC., this 18th day of May, 2001.
Elaine L. Chao,
Secretary of Labor.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

BILLING CODE 4510-CH-P

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Appendix I.--Forms EE-1, EE-2, EE-3, EE-4, EE-7, EE/EN-15, EE/EN-20 
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[FR Doc. 01-13113 Filed 5-24-01; 8:45 am]
BILLING CODE 4510-CH-C