[Federal Register Volume 67, Number 248 (Thursday, December 26, 2002)]
[Rules and Regulations]
[Pages 78874-78910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31841]



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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 of 2000, as Amended; Final Rule

  Federal Register / Vol. 67, No. 248 / Thursday, December 26, 2002 / 
Rules and Regulations  

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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 of 2000, as Amended

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

ACTION: Final rule.

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SUMMARY: On May 25, 2001, the Department of Labor (DOL) published 
interim final regulations that governed its responsibilities under the 
Energy Employees Occupational Illness Compensation Program Act of 2000, 
as amended (EEOICPA or Act). The Act provides lump-sum payments and 
medical benefits to covered employees and, where applicable, to 
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 smaller lump-sum payments and 
medical benefits to individuals found to be eligible for an award under 
section 5 of the Radiation Exposure Compensation Act, as amended 
(RECA), and where applicable, to their survivors.
    At the same time the Department published the interim final 
regulations, it also invited written comments and advice from 
interested parties regarding possible changes to those regulations. 
This document amends the interim final regulations based on comments 
that the Department received, and also includes changes necessary to 
conform the regulations to several technical amendments to the EEOICPA 
that Congress enacted after the interim final regulations were 
published.

DATES: Effective Date: This rule will be effective on February 24, 
2003, and will apply to all claims filed on or after that date. This 
rule will also apply to any claims that are pending on February 24, 
2003.
    Compliance Date: Affected parties do not have to comply with the 
new information collection requirements in Sec. Sec.  30.112 and 30.213 
until DOL publishes in the Federal Register the control number assigned 
by the Office of Management and Budget (OMB) to these information 
collection requirements. Publication of the control number will notify 
the public that OMB has approved the new information collection 
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). It should be noted that OMB approval of the new information 
collection requirements will be a revision to the currently approved 
collection in OMB Control No. 1215-197.
    Comments: Written comments on the new information collection 
requirements in Sec. Sec.  30.112 and 30.213 must be received by 
January 27, 2003.

ADDRESSES: Written comments on the new information collection 
requirements in Sec. Sec.  30.112 and 30.213 should be sent to the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Attention: Desk Officer for Employment Standards 
Administration, Washington, DC 20503.

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

SUPPLEMENTARY INFORMATION: The Department of Labor's interim final 
regulations implementing its responsibilities under the Energy 
Employees Occupational Illness Compensation Program Act of 2000, as 
amended (42 U.S.C. 7384 et seq.), were published in the Federal 
Register on May 25, 2001 (66 FR 28948). The interim final rule took 
effect on July 24, 2001 and originally included a 90-day period for 
comment. On September 12, 2001, the Department retroactively reopened 
the comment period on the interim final rule and extended the period 
for comment through September 24, 2001 (66 FR 47382). During this 
comment period, the Department received 216 timely comments: Six from 
congressional representatives; 10 from labor organizations; 6 from 
physicians; seven from attorneys; 13 from advocacy groups; one from a 
lay representative; one from the City Council of the City of Niagara 
Falls, New York; one from the Department of Defense; and 171 from 
individuals. The Department also received untimely comments from two 
advocacy groups and four individuals; the points they raised were also 
raised by the timely commenters. A majority of the commenters addressed 
the issue of survivor benefits (out of the 143 commenters that 
addressed this issue, 85 commenters addressed this issue alone). Other 
commenters addressed a range of issues, including coverage for 
particular illnesses, the administrative claims process, entitlement 
qualifications, and the extent of medical benefits provided under the 
program. The Department's section-by-section analysis of the timely 
comments it received is set forth below (see sections I and II).
    Some minor changes have been made to the interim final regulations 
that did not result from any comments. One such change is the addition 
of new paragraph (b) to Sec.  30.15 to recognize that unpaid lump-sum 
payments of compensation under the Act may be subject to garnishment to 
collect overdue alimony and child support. A second change is the 
addition of a clause in Sec.  30.115(a) that exempts any non-radiogenic 
cancer listed by the Department of Health and Human Services (HHS) in 
42 CFR 81.30 from referral to HHS for dose reconstruction, because that 
regulation affirmatively directs DOL to ``assign a probability of 
causation of zero'' to any such cancers (and therefore a referral for 
dose reconstruction would serve no useful purpose); this exemption 
replaces the one in former Sec.  30.115(b). In addition, Sec.  30.213 
has been divided into two sections to better reflect the two methods 
the Office of Workers' Compensation Programs (OWCP) uses to develop 
cancer claims. Similarly, Sec.  30.505 has been divided into two 
sections to distinguish the pre-payment actions OWCP will take before 
it pays compensation from the payment mechanisms it will use to make 
such payments. To accomplish this, paragraphs (b), (c) and (d) from 
former Sec.  30.505 are retained in final Sec.  30.505, and the 
remaining paragraphs from former Sec.  30.505 are now in final Sec.  
30.506.
    This rule also corrects several sections of the interim final 
regulations to conform the final regulations with the technical 
amendments to sections 7384l, 7384q, 7384r, 7384s, 7384u, 7385d, and 
7385g of the Act made by section 2403(a) of Public Law 107-20, 115 
Stat. 155, 175 (July 24, 2001), and by section 3151(a) of Public Law 
107-107, 115 Stat. 1012, 1371 (December 28, 2001). As a result of these 
corrections, Sec.  30.5 now includes both the current list of specified 
cancers and the current method of establishing chronic silicosis, 
Sec. Sec.  30.500 through 30.502 reflect the current statutory 
provisions on survivors, Sec.  30.603 has been added to reflect the 
amended attorney fee limitation provision, and Sec. Sec.  30.615 and 
30.616 have been rewritten as Sec. Sec.  30.615 through 30.619 to 
properly reflect the amended election of remedies provision. Section 
2403(b) of Public Law 107-20 provided that the addition of ``renal 
cancers'' to the list of specified

[[Page 78875]]

cancers took effect on October 1, 2001, and section 3151(a)(4)(D) of 
Public Law 107-107 provided that the changes to the survivor provisions 
were retroactive to July 1, 2001. The remainder of the amendments to 
the Act were effective as of December 28, 2001.
    When publishing a final rule following a comment period, it is 
customary to publish only the changes that have been made to the rule; 
however, in order to be more user-friendly, the Department is 
publishing the entire rule, including the parts that have not been 
changed. By doing so, only one document containing all of the 
regulations and commentary needs to be consulted rather than multiple 
documents.

I. Comments on the Interim Final Regulations

    The section numbers used in the headings of the following analysis 
are those that were used in the interim final regulations. Unless 
otherwise stated, the section numbers in the text of the analysis refer 
to the numbering used for the final regulations. No comments were 
received with respect to part 1.

Section 30.2

    One advocacy group suggested that OWCP provide EEOICPA claimants 
with State workers' compensation claim forms in addition to EEOICPA 
claim forms, as part of OWCP's role in the EEOICPA claim process. This 
suggestion was not adopted because section 7385o of the EEOICPA names 
DOE as the Federal entity authorized to enter into an agreement with 
the chief executive officer of a State, to establish procedures, and to 
administer the submission and adjudication of such claims. This 
separation of functions is also found in Executive Order 13179 
(``Providing Compensation to America's Nuclear Weapons Workers'') of 
December 7, 2000 (65 FR 77487). However, DOL and DOE have established 
joint Resource Centers to provide claimants with assistance, 
information and the forms necessary for filing both Federal and State 
claims.

Section 30.5(bb)

    One advocacy group suggested that the term ``physician'' should be 
expanded to specifically include dermatologists and other specialists 
in skin cancers. The suggestion was not adopted because these medical 
professionals are already included in the broad, non-exclusive 
definition of ``physician'' that appears in this section.

Section 30.5(cc)

    One physician suggested that the definition of ``qualified 
physician'' is too broad and should be changed. This suggestion was not 
adopted because the term in question is only used to distinguish 
physicians who may provide medical services to covered employees from 
those who have been excluded from participation in the program in 
accordance with the procedures described in Sec. Sec.  30.715 through 
30.726 of these regulations. The term does not imply anything regarding 
the professional qualifications of a physician.

Section 30.5(dd)

    One commenter requested that OWCP clarify if lung cancer has a 
required latency period as one of the specified cancers, while two 
advocacy groups disagreed with the required latency periods for those 
cancers designated in section 4(b)(2) of the Radiation Exposure 
Compensation Act, as amended (42 U.S.C. 2210 note). These two advocacy 
groups also requested that OWCP add ``renal cancers'' to the list of 
specified cancers to reflect the amendment to this provision of the Act 
made by section 2403(a) of Public Law 107-20. This section has been 
rewritten to clarify that as a specified cancer, lung cancer does not 
have a required latency period. However, the latency periods that are 
derived from the RECA are set by statute; OWCP does not have the 
authority to alter statutory provisions. The rewritten section also 
reflects the addition of renal cancers to the list of specified 
cancers, as well as the statutory modification of the provision for 
leukemia that was made by section 3151(a)(1) of Public Law 107-107.

Section 30.16

    Two advocacy groups submitted comments asking that anti-retaliation 
provisions be included in the final regulations to protect claimants 
who file claims under the Act from reprisal in the workplace. OWCP does 
not have authority to implement such provisions by regulation in the 
absence of statutory authorization supporting such action. Moreover, 
other workplace discrimination legislation already exists to protect 
claimants from any retaliatory actions for filing a claim under the 
Act. The suggestion was therefore not adopted.

Sections 30.100(a) and 30.101(a)

    One advocacy group disagreed with the requirement that section 5 
RECA claimants must file an actual ``claim'' with OWCP before they can 
receive the smaller $50,000.00 lump-sum payments available under 
section 7384u(a) of the Act. However, unless it receives a ``claim'' 
for benefits under the Act, OWCP has no way of knowing who might be 
entitled to such benefits since it does not have access to the RECA 
claims information available to DOJ. Therefore, the suggestion to drop 
the requirement for filing a claim was not adopted.
    One congressional representative asked if there was a time limit 
for filing claims of July 31, 2001. Although sections 7384s, 7384t and 
7384u of the Act did not come into effect until July 31, 2001, there is 
no time limitation for filing claims in either the Act or the 
regulations, and claimants need not file their claims with OWCP prior 
to a particular date in order to be entitled to benefits. However, 
pursuant to section 7384t(d) of the Act, claimants authorized to 
receive medical benefits under the Act may only receive those benefits 
for the period subsequent to the date they submitted a claim.

Sections 30.100(c)(2) and 30.101(d)(2)

    Three congressional representatives, seven labor organizations, six 
advocacy groups, two physicians, and three individuals requested that 
OWCP, under section 7384v of the Act, provide claimants with assistance 
in securing medical testing and diagnostic services by paying for or 
reimbursing for such testing and services. OWCP has made a policy 
decision to exercise its discretion to provide assistance by providing 
individual claimants with information and facilitating development of 
their EEOICPA claims. OWCP will not provide direct financial assistance 
for medical tests or diagnostic services because doing so would be 
financially impractical, would not be administratively feasible, and, 
in some instances, would duplicate services available under programs 
established by DOE or other employers that provide screening and 
medical monitoring of substantial numbers of former employees. 
Furthermore, evaluating numerous requests could substantially delay the 
program's overall claims adjudication process, thereby delaying payment 
of benefits in other deserving cases. Administrative difficulties would 
be particularly acute in regard to the wide variety of possible 
radiogenic cancers, since appropriate methods of diagnosis for these 
diseases can be controversial. Thus, the suggestion to pay for medical 
tests and diagnostic services was not adopted. However, OWCP will pay 
reasonable and necessary medical expenses, which could include tests 
and diagnostic services, in those cases that are

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accepted, so long as the expenses were incurred subsequent to the 
filing of the claim. Language indicating that OWCP will provide 
information on the types and availability of medical testing and 
diagnostic services has been added to Sec.  30.2(a).

Sections 30.105 and 30.106

    Three commenters (one of these in two separate comments) questioned 
the reliability of the employment data to be provided by DOE in 
response to an alleged employment history provided in support of a 
claim, and a fourth commenter inquired about situations where DOE would 
not be able to verify an alleged employment history due to missing or 
incomplete records. OWCP anticipates that DOE will be able to fulfill 
its responsibilities under Sec. Sec.  30.105 and 30.106 of the 
regulations in the majority of claims, and will work with DOE in an 
effort to obtain employment data sufficient to adjudicate those claims 
for which DOE may not have ready access to work records. To provide 
further guidance to claimants who may fall into this second group, new 
Sec.  30.112 has been added to illustrate alternative methods of 
establishing the requisite period of covered employment in the absence 
of supporting DOE data. Former Sec.  30.112 from the interim final rule 
has been renumbered as Sec.  30.113 to accommodate this new section.

Section 30.111

    Nine commenters, five labor organizations, seven advocacy groups, 
one physician and one congressional representative submitted a total of 
24 comments on the collection and assessment of employment and medical 
evidence, as well as the assistance to be given by OWCP in that 
process. In order to meet its statutory responsibility to provide 
assistance to claimants, OWCP has held public informational meetings 
around the country. With DOE, OWCP has also established and staffed ten 
resource centers near large populations of potential claimants to 
maximize accessibility, and staff from these resource centers 
periodically travel to other areas where a significant number of 
potential claimants might reside. Finally, Sec.  30.111 provides that 
OWCP will notify claimants of any deficiencies in their claims and 
provide an opportunity to correct such deficiencies.
    In response to various comments received about Sec.  30.111, the 
regulations have been revised by adding a new Sec.  30.114 and 
clarifying former Sec.  30.112 (renumbered as Sec.  30.113 in 
accordance with the revisions noted above) to give additional guidance 
as to what type of evidence is required and how that evidence will be 
evaluated. Although the claimant's evidentiary burden of proof has not 
been changed, the regulations more clearly reflect the flexible 
standard for considering a claimant's evidence in view of the fact that 
there may be gaps in the record. As noted in Sec. Sec.  30.105 and 
30.106, covered employment is verified by DOE. It is necessary for DOE 
to have access to worker records to perform this task, but given the 
size and scope of the data it is impractical to impose restrictive 
timeframes on DOE to complete the verification process.

Section 30.115

    Three labor organizations, one advocacy group and one commenter 
suggested that OWCP reconsider the use of dose reconstruction. ``Dose 
reconstruction'' is the term used to describe the process by which HHS 
will estimate an employee's radiation exposure history. The estimate 
produced in the dose reconstruction process is used by OWCP to 
determine whether an employee's cancer is at least as likely as not 
related to the employee's exposure to radiation at a covered facility. 
For claims seeking coverage for cancer based on the Special Exposure 
Cohort (SEC), no dose reconstruction is performed because coverage is 
presumed when a member of the SEC sustains a specified cancer after 
beginning employment at a covered facility. Section 7384n of the Act 
specifically requires that a determination concerning coverage of any 
cancer not subject to the SEC provisions be based upon guidelines 
established to determine the probability that a cancer was caused by 
exposure to radiation at a covered facility. That section also requires 
that a determination regarding the probability of causation incorporate 
the results of the dose reconstruction. Accordingly, since OWCP is not 
authorized to reconsider the use of dose reconstruction, the suggestion 
was not adopted. However, and as noted above, Sec.  30.115 has been 
revised slightly to conform the dose reconstruction referral process 
with HHS's regulations at 42 CFR part 81.

Section 30.207

    One physician, one advocacy group, one labor organization and one 
individual submitted five comments on the manner of diagnosing covered 
beryllium illnesses. The suggested changes to Sec.  30.207 were not 
adopted because Sec.  30.207 mirrors the language of section 7384l(8) 
and (13) of the Act for establishing beryllium illnesses; OWCP may not 
vary the requirements of these provisions by regulation.

Section 30.213

    As noted above, Sec.  30.213 has been divided for clarity into two 
sections to reflect the two methods to claim benefits for cancer, and 
the contents have been rearranged slightly. Section 30.213 in the 
interim final rule has been renumbered as Sec.  30.214, new Sec.  
30.212 now specifically addresses claims for cancer not based on 
membership in the SEC, and Sec.  30.212 in the interim final rule has 
been renumbered as Sec.  30.213.
    Two advocacy groups, one labor organization, and two commenters 
disagreed with the specific eligibility cutoff date for the members of 
the SEC who were exposed to ionizing radiation in the performance of 
duty related to one of three specified underground nuclear tests on 
Amchitka Island, Alaska. Five other commenters (one of whom is a 
physician), the same labor organization, one of the advocacy groups, 
and one of the two prior commenters also generally questioned the 
limited definition of who can qualify as a member of the SEC and 
therefore bypass the entire dose reconstruction process at HHS. The 
criteria for eligibility of members of the SEC set out in Sec.  30.213 
(renumbered as Sec.  30.214 in accordance with the revision noted 
above) are governed by the explicit terms of section 7384l(14) of the 
Act, and may not be modified in any manner by regulation.

Section 30.214(b)

    Two labor organizations and an advocacy group disagreed with the 
requirement in Sec.  30.214(b) (renumbered as Sec.  30.215(b) in 
accordance with the revision noted above) that employees seeking 
medical benefits for a consequential injury of a covered cancer submit 
rationalized medical evidence of a causal relationship between the 
consequential injury and the covered cancer. However, this evidentiary 
requirement is commonplace among State and Federal workers' 
compensation systems and does not exceed what is required to obtain 
these benefits under those other systems. OWCP further notes that under 
the Act, consequential injuries do not have any explicit diagnostic 
requirements that must be met (as do the covered occupational 
illnesses). Therefore, OWCP concludes that the current regulatory 
requirement for rationalized medical evidence of a causal relationship 
is reasonable and necessary, and the suggested changes have not been 
adopted.

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Sections 30.215, 30.217 and 30.220

    One lay representative suggested that OWCP consider adding a 
provision for coverage of consequential injuries of the various section 
5 RECA illnesses. The interim final rule included regulatory provisions 
governing consequential injuries of covered cancers and covered 
beryllium diseases, but did not also specifically reference 
consequential injuries of either chronic silicosis or the section 5 
RECA illnesses in Sec. Sec.  30.215, 30.217 or 30.220. In order to 
clarify that medical benefits are available for consequential injuries 
of all the occupational illnesses covered under the Act, these sections 
(renumbered as Sec. Sec.  30.220, 30.222 and 30.225 in accordance with 
the revisions noted above) have been revised, and new Sec.  30.226 has 
been added to address the type of medical evidence that will be needed 
to establish a causal relationship between a consequential injury and a 
section 5 RECA illness.

Section 30.300

    In the absence of any language mandating a particular adjudicatory 
structure in the Act, the interim final regulations established the 
current structure. Four congressional representatives, six labor 
organizations, seven advocacy groups, and two commenters (one of whom 
is a physician) submitted a total of 28 comments on the current 
structure for adjudicating claims filed under the EEOICPA. One 
congressional representative, one labor organization and four advocacy 
groups asked that OWCP devise a more elaborate administrative review 
process, while the other three congressional representatives, one of 
the four advocacy groups, and two other advocacy groups specifically 
recommended that administrative law judges be part of the adjudication 
process. Finally, one of the congressional representatives, all six 
labor organizations, all seven advocacy groups, and both commenters 
suggested that OWCP should add an independent review body to the 
adjudicatory process.
    At the time that the interim final rule was issued, OWCP decided 
that it would be most efficient and beneficial to claimants to provide 
an expeditious administrative claims process that would allow claimants 
to seek review of adverse final agency decisions on their claims in 
Federal court without delay. This process provides claimants with an 
opportunity to challenge a recommended decision before a Final 
Adjudication Branch (FAB) reviewer, either through an oral hearing or 
through a review of the written record. Either mechanism allows a 
claimant to submit additional evidence or arguments to the FAB reviewer 
in a non-adversarial forum. This is unlike a proceeding before an 
administrative law judge where an adverse party would have an 
opportunity to object to the admission of evidence or provide evidence 
or arguments to refute the claimant's contentions. If the claimant 
disagrees with the final agency decision, he or she can seek review of 
the decision from a Federal court without delay. OWCP believes that 
utilizing administrative law judges or an independent review body would 
unnecessarily complicate and delay the adjudication process to the 
detriment of claimants. None of the commenters provided a convincing 
justification to reverse OWCP's initial decision concerning this 
adjudicatory structure, and therefore the suggestions were not adopted.

Section 30.305

    Four labor organizations, two advocacy groups, one physician, and 
three individuals suggested that time limits be placed on the claim 
adjudication process. Time limits are currently in place with respect 
to recommended decisions pending either a hearing or a review of the 
written record before the FAB in Sec.  30.316(c). These time limits 
provide that any recommended decision pending either a hearing or a 
review of the written record at the FAB for more than a specified 
period will be deemed to be a final decision of the FAB. Due to the 
wide range of claim types and the complexities involved in developing 
and establishing certain of these claims, along with the fact that 
Federal agencies other than OWCP are involved in the claim process, 
OWCP has decided against establishing strict time limits to govern the 
complete adjudicatory process, and did not adopt the suggestion. 
However, OWCP has established performance goals under the Government 
Performance and Results Act to monitor the efficiency of the claims 
adjudication process.

Sections 30.306 and 30.316(b)

    Seven labor organizations, three advocacy groups and one physician 
suggested that the regulations require detailed findings and grounds in 
all recommended decisions denying a claim and in any final decision 
issued by the FAB. However, Sec.  30.306 already requires that all 
recommended decisions contain findings of fact and conclusions of law; 
this existing requirement provides a claimant with the detailed 
findings requested by the commenters. Therefore, further descriptions 
of these requirements for final decisions of the FAB does not appear 
necessary, and the suggestions were not adopted.

Section 30.310(b)

    One congressional representative, three labor organizations, and 
three advocacy groups voiced concerns about the limited time period for 
raising objections to findings of fact and/or conclusions of law 
contained in a recommended decision with the FAB. The 60-day period was 
designed to expedite the adjudicatory process and thus it has not been 
deemed necessary to modify this time frame. However, to address the 
concerns raised by these commenters, OWCP has provided in new Sec.  
30.320 a procedure for reopening FAB decisions at any time in the event 
that new evidence is discovered or circumstances have changed. In 
addition, OWCP has modified Sec.  30.310(b) by removing the requirement 
that the claimant raise a specific objection to a particular finding of 
fact or conclusion of law as this requirement has not proved effective 
in practice. Sections 30.312 and 30.314(b) have also been revised to 
remove similar requirements for specific objections in those two 
sections.
    One of these three advocacy groups also recommended that the FAB 
provide hearings to all claimants automatically. Removing the 
requirement that a claimant raise a specific objection will allow any 
claimant who is dissatisfied with a recommended decision to receive a 
hearing upon a timely request. To date, less than 2% of claimants who 
have received a recommended decision have requested hearings before the 
FAB. Therefore, it does not seem reasonable to require OWCP to devote 
the resources necessary to provide hearings to the vast majority of 
claimants who either request a review of the written record or do not 
object to the recommended decision. Accordingly, since the suggestion 
to provide hearings to every claimant automatically would hamper the 
ability of the FAB to issue final decisions on claims, especially on 
claims that have been accepted for the payment of benefits, it was not 
adopted.

Section 30.311(a)

    One congressional representative disagreed with the provision in 
Sec.  30.311(a) directing the FAB to issue a decision accepting the 
recommendation of the district office if the claimant did not file 
timely and specific objections to findings of fact and/or conclusions 
of law contained in the recommended decision, even if the claimant had

[[Page 78878]]

requested a hearing. Consistent with the revision to Sec.  30.310(b), 
this section has been revised to remove the requirement for a specific 
objection. As a result, the FAB will now issue a decision that accepts 
the recommendation of the district office if the claimant neither 
requests a hearing nor submits a general objection to the recommended 
decision within the requisite time period.

Sections 30.313 and 30.314(a)

    Five labor organizations, four advocacy groups, and one physician 
suggested that EEOICPA claimants should have the right to a formal 
adjudicative hearing to challenge findings and build a record for 
possible judicial review. The administrative claims process within the 
Department is intended to be non-adversarial and has been structured as 
an informal, streamlined process allowing for the prompt adjudication 
of claims. The regulations in Sec. Sec.  30.313 and 30.314(a) allow 
claimants to introduce additional written evidence and/or testimony and 
give FAB reviewers the discretion to conduct hearings in a manner that 
ensures that a complete record is made sufficient for judicial review. 
Since there is nothing in the Act that requires formal adjudicative 
hearings, it does not appear necessary to create a more elaborate and 
less expeditious administrative claims process, as has been requested.

Section 30.314

    Four labor organizations and three advocacy groups (one of these in 
two separate comments) suggested that Sec.  30.314(a), which provides 
that the FAB reviewer retains complete discretion to set the time and 
place of the hearing, also include a requirement that the reviewer 
shall attempt to schedule the hearing at a location that is convenient 
for the claimant. The current practice of OWCP is to schedule the FAB 
hearing, whenever possible, at a location that is within a reasonable 
distance from the claimant's residence. Based on the above comments, 
OWCP is persuaded that this policy should be set forth with more 
specificity in the rule, and Sec.  30.314(a) has been revised 
accordingly.
    One of these four labor organizations, the three advocacy groups, 
one congressional representative, and a fourth advocacy group also 
suggested that FAB hearing procedures be spelled out in the 
regulations. However, Sec.  30.314 is purposefully formulated to permit 
maximum flexibility and gives the FAB reviewer complete discretion, 
among other things, to schedule and conduct hearings in a fair and 
expedient manner. Since the claims adjudication process is non-
adversarial and the informal FAB hearing process is working 
effectively, OWCP sees no reason to revise Sec.  30.314 to create a 
formal and less flexible hearing process.
    Two of the first three advocacy groups questioned the requirement 
in Sec.  30.314(e) that the claimant must submit his or her comments 
regarding the hearing transcript to the FAB reviewer within 20 days 
from the date that the transcript is sent to the claimant. The 
commenters suggested that this requirement be changed to within 20 days 
from the date that the transcript is received by the claimant, citing 
the possibility of slow mail. A clear fixed date set by OWCP is 
necessary to ensure that no bottlenecks are created in the claims 
adjudication process, and thus, the above suggestion has not been 
adopted.

Section 30.316(c)

    A congressional representative, a labor organization and an 
advocacy group expressed concerns about the procedural mechanism by 
which any recommended decision that is still pending at the FAB for 
more than one year is deemed to be a final decision of the FAB. The 
labor organization believed that the FAB could take advantage of the 
mechanism by intentionally delaying issuing final decisions on claims, 
thereby rendering the opportunity to raise objections to the 
recommended decision moot. However, this mechanism actually protects 
claimants against excessive delay by the FAB because it ensures that 
claimants receive a final agency decision on their claims within a time 
certain, and permits them to seek judicial review, within a reasonable 
time following the issuance of a recommended decision. Further, as 
noted above, OWCP has established performance goals under the 
Government Performance and Results Act to monitor the efficiency of the 
claims adjudication process, and those performance goals also cover the 
activities of the FAB. There have been no demonstrated incidents of 
delay and therefore it does not appear necessary to modify this 
mechanism. Nevertheless, to more accurately reflect the FAB's current 
performance goals for issuing final decisions and to accommodate the 
changes regarding specific objections described above, the event that 
will commence the one-year period has been changed from the receipt of 
the case file from the district office to the receipt of the written 
submission described in Sec.  30.310, or the expiration of the 60-day 
period in that same section in the absence of a written submission.

Section 30.318

    Four congressional representatives, six labor organizations, two 
advocacy groups and one physician suggested that the regulations should 
permit claimants to challenge the dose reconstruction methodology 
before the FAB. This suggestion was not adopted because both the 
development and implementation of the dose reconstruction methodology 
have been established pursuant to regulations promulgated by HHS (42 
CFR part 82) and are outside the scope of the Department's authority 
under E.O. 13179.

Section 30.320

    One congressional representative, six labor organizations, five 
advocacy groups, and two physicians disagreed with the one-year period 
for claimants to seek modification set out in Sec.  30.320, noting that 
it is likely that after the expiration of such period, there will be 
changes in the science related to dose reconstruction and the 
disclosure of previously unavailable exposure and employment 
information that might justify reopening of the claim. In addition, the 
same six labor organizations, three of the five advocacy groups, and 
one of the two physicians asserted that reopening of the claim or the 
filing of a new claim might be warranted where a claimant with a cancer 
claim is denied benefits but at a later date falls within a class of 
employees that is added to the SEC, as contemplated by section 7384q(b) 
of the EEOICPA. OWCP is persuaded by these comments; therefore, Sec.  
30.320 has been revised to abandon the one-year modification limitation 
for claimants. Revised Sec.  30.320(b) allows claimants to ask OWCP to 
reopen their claims at any time if they submit new and material 
evidence of covered employment or exposure to radiation, beryllium or 
silica; or if they identify a material change in the probability of 
causation guidelines, a material change in the dose reconstruction 
methods or a material addition of a class of employees to the SEC that 
occurred after the FAB issued a final decision on their claim. If the 
required showing of materiality is met, the claim will be reopened and 
returned to the district office for a new determination on the merits 
of the claim. OWCP will closely coordinate with HHS and reopen cases on 
the Director's own authority under revised Sec.  30.320(a) when factors 
such as changes in HHS methodology or the discovery of new relevant 
information warrants doing so (in those cases, it will

[[Page 78879]]

not be necessary for claimants to take any action to receive a new 
decision).

Section 30.400

    One advocacy group and one commenter suggested that OWCP reimburse 
employees for medical expenses they incurred due to a covered 
occupational illness prior to the date they filed a claim for benefits 
with OWCP, while a lay representative generally urged that a broad 
scope of medical benefits should be made available to covered 
employees. The availability of medical benefits is governed by section 
7384t of the Act, which explicitly states that eligibility to receive 
such benefits will commence no earlier than the date on which the claim 
is filed. Therefore, OWCP cannot alter this statutory limitation 
through regulation. In addition, Sec.  30.400 already notes the broad 
scope of medical benefits that are payable under the Act, and provides 
that a covered employee is entitled to receive all medical treatment 
prescribed or recommended by a qualified physician that OWCP considers 
necessary to treat his or her covered illness. In light of this, it 
does not appear necessary to modify Sec.  30.400 as requested.
    Three other commenters suggested that OWCP issue medical benefits 
identification cards (similar to health insurance identification cards) 
to covered employees, to make it easier for such employees to obtain 
medical benefits. Subsequent to the promulgation of the interim final 
regulations, OWCP decided to utilize such cards. However, because 
medical benefits are only available for conditions covered by the Act, 
rather than for almost all conditions as is the case with health 
insurance, a covered employee's medical benefits identification card 
only lists the specific condition(s) for which medical benefits are 
available for that covered employee.

Section 30.403

    Four labor organizations, four advocacy groups and one commenter 
suggested that family members be compensated for providing personal 
care services. Section 30.403 does not preclude family members from 
being paid for providing personal care services as long as they have 
received the necessary training. This will help ensure that covered 
employees are provided proper care for any medical conditions that are 
covered by the Act. Therefore, the regulation has not been changed.

Section 30.404

    Four labor organizations, one advocacy group, one physician, and 
four individuals disagreed with the general travel limit of 25 miles 
set forth in Sec.  30.404, noting that employees who reside in remote 
geographic areas where medical services are limited, or who require the 
services of a small number of recognized medical specialists, should 
not be denied reimbursement for travel of greater distances to obtain 
appropriate medical treatment. While OWCP's current policy is to take 
into consideration such demonstrated needs of individual claimants, the 
above comments indicate that there is a need to clarify the current 
rule. As modified, Sec.  30.404(a) establishes a roundtrip distance of 
up to 200 miles as what OWCP will generally consider a reasonable 
distance to travel. Section 30.404(b) further provides that if travel 
of more than 200 miles is contemplated, or if air travel or overnight 
accommodations will be needed, the employee must request prior approval 
from OWCP demonstrating the circumstances and necessity for such 
travel.
    Three labor organizations stated that Sec.  30.404 should include 
information on where employees can obtain the standard form for 
requesting medical travel refunds. Section 30.404(c) indicates that the 
form can be obtained from OWCP.
    One advocacy group and one individual commenter indicated that OWCP 
should pay the travel expenses of a person who accompanies an employee 
on a trip to obtain medical treatment. Under Sec.  30.404, OWCP has the 
discretion to determine what travel expenses are ``reasonable and 
necessary,'' and prefers to maintain the flexibility to make such 
determinations on a case-by-case basis. Therefore, no change was made 
to this section.
    One individual asserted that OWCP should compensate employees for 
any lost wages resulting from absences from work to undergo diagnostic 
testing, and other persons for any lost wages resulting from absences 
from work in order to accompany employees on medical visits to obtain 
diagnostic testing. As set forth in Sec.  30.412 of the regulations, 
OWCP provides reimbursement for actual wages lost by employees for the 
time needed to submit to a second opinion or referee examination 
required by OWCP. As for the lost wages of persons accompanying 
employees, OWCP has the discretion under Sec.  30.404 to determine if 
these constitute ``reasonable and necessary'' travel expenses and 
prefers to maintain the flexibility to make such determinations in 
individual situations. As a result, no change was made to this section.

Section 30.410

    Four labor organizations and two advocacy groups did not believe 
that OWCP should have the authority to refer claimants to multiple 
``second opinion'' medical examinations by physicians of its choosing, 
even at the government's expense. However, this authority is necessary 
to enable OWCP to obtain additional medical evidence in situations 
where a claimant has submitted some medical evidence in support of a 
claim, but the evidence is of insufficient probative value to allow the 
claimant to meet his or her burden of proof. If the claimant could not 
submit the additional evidence necessary to meet this burden, and OWCP 
could not obtain it through a second opinion examination, OWCP would 
have to deny the claim. Since it is OWCP's policy to assist claimants 
in the development of their claims, the authority to refer claimants 
for second opinion medical examinations is one of the tools OWCP needs 
to efficiently carry out this policy.
    Three of these same four labor organizations and two different 
advocacy groups also suggested that claimants should be allowed to have 
someone other than a physician of their choosing present during a 
second opinion examination. The restriction on who may accompany 
claimants during these examinations was intended to minimize the 
possibility of disruptions, but given the nature of the claimant 
population and the likelihood of this occurring, OWCP is persuaded that 
the restriction is not necessary for all second opinion referrals. 
However, OWCP will retain the restriction for use if the person 
accompanying the claimant disrupts the examination and OWCP has to 
refer the claimant to a different physician for the requested second 
opinion examination.

Section 30.411

    Three congressional representatives, five labor organizations, four 
advocacy groups and three commenters (two of whom are physicians) 
suggested that OWCP utilize a joint naming process whereby the claimant 
and OWCP would agree on a physician to perform a referee examination 
needed to resolve a conflict in the medical evidence. OWCP does not see 
the utility of this suggestion, especially since the EEOICPA claims 
adjudication process is non-adversarial and OWCP does not oppose a 
claim for benefits. Furthermore, this more

[[Page 78880]]

complex manner of selecting physicians to perform referee examinations 
would add to the length of time necessary to adjudicate the claim 
without providing any tangible benefit. Accordingly, the suggestion was 
not adopted, and OWCP will continue to select all physicians performing 
referee examinations from a pool of specialists (consisting of both 
Board-certified physicians and other qualified specialists) who have 
expressed a willingness to perform these types of examinations. OWCP 
selects physicians from the pool on a strict rotational basis according 
to medical specialty and geographic location, and periodically reviews 
the pool for quality control purposes and to allow other qualified 
physicians an opportunity to join the pool.
    Three of these same five labor organizations and two of the same 
four advocacy groups also suggested that claimants should be allowed to 
have someone of their own choosing present during a referee 
examination. As was the case with second opinion examinations, the 
restriction against anyone accompanying a claimant during a referee 
examination was intended to minimize the possibility of disruptions, 
but given the nature of the claimant population and the likelihood of 
this occurring, OWCP is persuaded that the restriction is not necessary 
for all referee examination referrals. However, consistent with its 
decision regarding the limitation in Sec.  30.410, OWCP will retain the 
restriction for use if the person accompanying the claimant disrupts 
the examination and OWCP has to refer the claimant to a different 
physician for the requested referee examination.

Section 30.412

    One advocacy group suggested that OWCP consider paying for a family 
member to accompany all employees on any directed medical examinations 
that would necessitate either an overnight stay away from home or air 
transportation. OWCP does not consider a blanket rule of this sort to 
be justifiable, since it is clear that while many employees may be so 
infirm as to require somebody to accompany them to such an examination, 
it is equally clear that others will not. Therefore, OWCP prefers to 
maintain the discretion in this section to determine whether such 
expenses are ``reasonable and necessary,'' and the suggestion has not 
been adopted.

Sections 30.500, 30.501 and 30.502

    A total of 143 comments addressed the description of how survivors 
are defined and paid in Sec. Sec.  30.500, 30.501 and 30.502: Three 
from congressional representatives; eight from labor organizations; 10 
from advocacy groups; four from physicians; four from attorneys; one 
from a lay representative; and 112 from other individuals. However, 
these comments were rendered moot following the enactment of section 
3151(a)(4) of Public Law 107-107, which amended the survivor provisions 
in sections 7384s(e) and 7384u(e) of the EEOICPA. To conform the final 
regulations to the amended provisions, Sec. Sec.  30.500 through 30.502 
have been completely rewritten and the prior definition for ``widow or 
widower'' from Sec.  30.5(gg) of the interim final regulations has been 
modified and consolidated with the other statutory definitions in Sec.  
30.500. As a result of the latter change, former Sec.  30.5(hh) has 
been renumbered as Sec.  30.5(gg) in the final regulations.

Section 30.505(c)

    Two advocacy groups, one attorney and one commenter disagreed with 
the provision in Sec.  30.505(c) (renumbered as Sec.  30.505(b) in 
accordance with the revision noted above) for an offset of EEOICPA 
benefits against any amounts received for an occupational illness in a 
final judgment or settlement in litigation. This same commenter, and 
five other commenters, also questioned the justification for any offset 
of EEOICPA benefits. Section 7385 of the Act requires an offset of 
EEOICPA benefits if certain other payments have been received, and 
provides the necessary statutory justification for the offset process. 
However, section 7385 does not describe how this process should occur, 
and the above comments indicate the need for a more detailed 
description of how, and to what extent, OWCP will offset EEOICPA 
benefits. Therefore, Sec.  30.505(b) now contains a more thorough 
definition of the type of payment that will necessitate an offset, and 
how OWCP will determine the value of any such payment. It also provides 
for deductions from the amount to be offset (for reasonable attorney's 
fees and itemized costs of suit) in order to arrive at the amount of 
the required offset of EEOICPA benefits. The regulation also provides 
that an offset will result in the reduction of an unpaid lump-sum 
payment first. Finally, this paragraph indicates that OWCP will not 
offset any EEOICPA benefits if a claimant has already had his or her 
benefits under section 5 of the RECA reduced to reflect a payment that 
would otherwise require an offset of EEOICPA benefits.

Section 30.505(d) and (f)

    One lay representative inquired whether OWCP would pay survivor 
benefits in stages, or if it would wait until it was ready to pay all 
survivors of a single deceased covered employee at the same time. 
Section 30.505(d) (renumbered as Sec.  30.505(c) in accordance with the 
revision noted above) provides that ``No payment shall be made until 
OWCP has made a determination concerning the survivors related to a 
respective claim for benefits.'' This restriction is necessary to 
conserve administrative resources and has been retained; however, there 
is no requirement that OWCP wait to actually pay all the survivors of a 
deceased covered employee at the same time. Accordingly, a survivor who 
signs and returns the acceptance form quickly may be paid his or her 
share of the compensation payment before another survivor who waits the 
full 60 days before signing and returning the form. In cases with 
multiple claimants, OWCP will determine the share of the lump-sum 
amount, if any, to which each survivor is entitled.
    The same lay representative also questioned the prohibition in 
Sec.  30.505(f) (renumbered as Sec.  30.506(c) in accordance with the 
revision noted above) against distributing rejected shares of 
compensation payments to other eligible survivors. Sections 
7384s(e)(1)(B) and 7384u(e)(1)(B) both require the payment of equal 
shares of a single compensation payment to ``all children of the 
covered employee who are living at the time of payment,'' not all 
children of the covered employee who are living at the time of payment 
and who do not reject their shares. Therefore, the prohibition against 
distributing rejected shares of compensation is established by the 
terms of the Act itself, and no change was made to this section.

Section 30.506

    Two physicians, one advocacy group, one labor organization and one 
commenter had questions regarding the provision of medical benefits to 
covered employees whose sole occupational illness is beryllium 
sensitivity. Section 30.506 (renumbered as Sec.  30.507 in accordance 
with the revision noted above) stated that these employees were not 
entitled to any medical benefits other than beryllium sensitivity 
monitoring. However, because section 7384s(a)(2) of the Act only 
replaces the lump-sum payment provided for under section 7384s(a)(1) 
with beryllium sensitivity monitoring and is silent with respect to 
entitlement to medical

[[Page 78881]]

benefits, covered employees whose sole occupational illness is 
beryllium sensitivity should be provided medical benefits for that 
condition. Therefore, Sec.  30.507 has been revised to be consistent 
with this interpretation and now states that covered employees whose 
sole occupational illness is beryllium sensitivity are entitled to the 
same medical benefits provided to other covered employees. The 
estimated marginal cost of providing these benefits (which would 
usually be for low-cost prescription steroid medications) will be 
negligible from a budgetary standpoint.

Section 30.601

    One lay representative commented on this section by asking who 
would represent mentally incompetent claimants, and if she could 
represent claimants in the EEOICPA claim process. Serving as a legal 
representative of a mentally incompetent person is a matter of state 
law and is thus outside the scope of these regulations. Section 30.601, 
which addresses the question of who may serve as a representative in 
the claims process, does not bar lay representatives from providing 
representation to EEOICPA claimants. On a related issue, three advocacy 
groups and three individuals submitted comments on the statutory 
attorney fees cap for representation of EEOICPA claimants. However, 
following publication of the interim final rule, Congress amended 
section 7385g of the Act in section 3151(a)(6) of Public Law 107-107. 
Therefore, new Sec.  30.603 has been added to reflect the current 
statutory limits on attorney fees in amended section 7385g.

Section 30.609

    One advocacy group disagreed with the requirement that claimants 
report (for possible offset of EEOICPA benefits) awards they receive 
due to medical malpractice in treating a covered occupational disease. 
However, since these awards are clearly payments ``made pursuant to a 
final award or settlement on a claim'' that has its genesis in an 
occupational illness covered by the Act, no change was made to this 
requirement so OWCP will be able to fulfill its offset responsibilities 
under section 7385 of the EEOICPA.

Sections 30.615 and 30.616

    Two advocacy groups, two attorneys and three other commenters 
suggested possible changes to Sec. Sec.  30.615 and 30.616 (rewritten 
as Sec. Sec.  30.615 through 30.619 as noted above). These suggestions 
were rendered moot by section 3151(a)(5) of Public Law 107-107, which 
amended the election of remedy provisions in section 7385d of the 
EEOICPA. To conform the final regulations to these amendments, prior 
Sec. Sec.  30.615 and 30.616 have been rewritten as Sec. Sec.  30.615 
through 30.619, and prior Sec.  30.617 has been renumbered as Sec.  
30.620 to accommodate these changes.

Section 30.701(c)

    One physician and one advocacy group noted that there is no 
diagnostic code for beryllium sensitivity in the ``International 
Classification of Disease, 9th Edition, Clinical Modification'' (ICD-9-
CM), and that medical providers are required to provide such a code 
whenever they submit bills to OWCP for payment. To address this, OWCP 
has designated the V81.4 classification ``Other and unspecified 
respiratory conditions'' as the appropriate ICD-9-CM classification for 
beryllium sensitivity. Use of this code will both allow OWCP to track 
accepted beryllium sensitivity cases, and to pay medical providers for 
pre-approved diagnostic tests to monitor the employee for signs of 
chronic beryllium disease.

Sections 30.705 through 30.710

    One advocacy group questioned OWCP's decision to base the medical 
fee schedule for professional medical services and inpatient medical 
services on cost data supplied by the Centers for Medicare and Medicaid 
Services (CMS) in light of the increased cost for those services in 
remote geographical areas. However, Sec.  30.707(b) provides that the 
``relative value units'' assigned by CMS to professional medical 
services will be multiplied by the Geographic Practice Cost Indices for 
Metropolitan Statistical Areas as devised for CMS, and this adjustment 
should be sufficient to accommodate increased costs for these services 
in remote areas. Further, Sec.  30.710 indicates that the fee schedule 
for inpatient medical services will be based on hospital-specific cost 
factors that are part of the CMS Prospective Payment System OWCP will 
use to pay for hospital discharges. In either instance, the fee 
schedules may be adjusted if OWCP deems it necessary or appropriate. 
Therefore, the suggestion to use a different set of cost data was not 
adopted.

II. Miscellaneous Comments

    Several of the 216 timely comments the Department received raised 
issues that either were not addressed in the interim final regulations 
or involved extraneous matters. The Department's analysis of these 
miscellaneous comments follows:

The Rulemaking Process

    OWCP received comments from two labor organizations, four advocacy 
groups and one individual commenter on the rulemaking process. The 
various comments requested that public hearings be held on the 
regulations and that a formal advisory committee be appointed, and 
suggested that the interim final regulations be effective for a short 
time period, to be followed by a notice and comment period prior to 
publication of the final rule. Because of the time constraints set 
forth in E.O. 13179, which required publication of regulations by May 
31, 2001 and the establishment of a functioning program by July 31, 
2001, OWCP chose to publish an interim final rule without first 
publishing a notice of proposed rulemaking. However, because OWCP both 
understands and appreciates the importance of public input in the 
rulemaking process, it provided an extensive comment period of 120 days 
to receive input from the public on the regulations. Also, OWCP staff 
members participated in numerous public meetings across the United 
States to publicize and explain the Act and the regulations. All 
comments received during the comment period have been thoroughly 
reviewed and taken into consideration for purposes of the rulemaking 
process and publication of this final rule.
    Unlike the requirements in 42 U.S.C. 7384n(c)(2) and (d)(2) that 
the regulations promulgated by HHS pursuant to section 7384n(b) and 
(d)(1) be reviewed by the Advisory Board on Radiation and Worker Health 
that was established as directed by section 7384o, there is no 
requirement in section 7384d that the regulations promulgated by DOL 
for the administration of the program be reviewed by any advisory 
board. As noted above, a lengthy period for public comments was 
provided in connection with the Interim Final Regulations, and regular 
and frequent communications occur with HHS and DOE. DOL also attends 
and participates in the public meetings of the Advisory Board on 
Radiation and Worker Health. Under these circumstances, DOL does not 
see the utility in adding an advisory committee to this rulemaking 
process.

Coordination of Benefits

    Three individuals submitted comments suggesting that there be no 
coordination of benefits for claimants with beryllium illnesses, and 
three other individuals submitted general questions regarding 
coordination of benefits with State workers' compensation program

[[Page 78882]]

benefits. These comments involve the operation of section 7385h of the 
Act, which deals with the interplay between the Act, State law and 
private insurance contracts; however, OWCP did not address this issue 
in the interim final rule, nor does it do so in this final rule.

Designating Facilities

    One attorney (in two separate comments), the City Council of the 
City of Niagara Falls, and eight individuals requested that the time 
frames indicated by DOE for certain facilities be expanded and/or that 
specific new facilities be included on the list of covered facilities 
maintained by DOE. These recommendations have been forwarded to DOE, 
which is actively soliciting information from the public as it 
continues its research efforts regarding facility time frames and 
additions or deletions to the covered facilities list.

Benefit Levels

    One lay representative and eight other commenters made suggestions 
about the level of benefits to be provided to successful claimants. 
However, since the benefit levels are set by the terms of the Act, the 
regulations cannot adopt a different level of benefits unless the Act 
itself is amended. Accordingly, the suggested changes were not adopted.

Coverage

    One congressional representative, two physicians, the Department of 
Defense, five advocacy groups, and 31 commenters made suggestions about 
which workers should be covered by the Act. However, the Act mandates 
the categories of workers covered and the regulations cannot be changed 
to either expand or restrict the categories of covered workers unless 
the Act is amended. Therefore, the suggested changes have not been 
made.

Covered Illnesses

    Two advocacy groups, a physician, an attorney and 19 individuals 
suggested that the occupational illnesses covered by the Department's 
program be expanded to include additional illnesses that may have 
resulted from the exposure of employees to harmful substances while in 
the performance of duty at covered facilities under the Act. However, 
OWCP has no authority to implement any such changes in the absence of 
legislative changes to the Act. Furthermore, Part D of the Act already 
provides the opportunity for claimants to obtain assistance from DOE in 
filing for benefits under appropriate State workers compensation 
programs in connection with the exposure of DOE contractor employees to 
toxic substances at DOE facilities.

III. Publication in Final

    The Department of Labor has determined, pursuant to 5 U.S.C. 
553(b)(B), that good cause exists for waiving public comment on this 
final rule with respect to the following changes: (1) Those needed to 
conform the regulations to the sections of the EEOICPA that were 
amended by Public Laws 107-20 and 107-107; (2) those needed to conform 
the regulations to the probability of causation guidelines issued by 
HHS; (3) corrections of typographical errors; and (4) minor wording 
changes and clarifications that do not affect the substance of the 
regulations. For these changes, publication of a proposed rule and 
solicitation of comments would be neither necessary nor fruitful.

IV. Statutory Authority

    Section 7384d of the EEOICPA provides the general statutory 
authority, which E.O. 13179 allocates to the Secretary, to prescribe 
rules and regulations necessary for the administration and enforcement 
of the Act. Sections 7384t and 7384u of the EEOICPA provide specific 
authority regarding medical treatment and care, including determining 
the appropriateness of charges. The Federal Claims Collection Act of 
1966, as amended (31 U.S.C. 3701 et seq.), authorizes imposition of 
interest charges and collection of debts by withholding funds due the 
debtor.

V. Paperwork Reduction Act

    This final rule contains information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA). The information 
collection requirements set out in Sec. Sec.  30.401, 30.404, 30.420, 
30.421, 30.700, 30.701 and 30.702(a) of this rule were submitted to and 
approved by OMB under the PRA, and the currently approved collections 
in OMB Control Nos. 1215-0054 (expires June 30, 2004), 1215-0055 
(expires November 30, 2003), 1215-0137 (expires February 28, 2005), 
1215-0176 (expires December 31, 2003), and 1215-0194 (expires January 
31, 2004) were revised to include the added EEOICPA respondents. No 
public comments were received regarding this group of information 
collection requirements, and they were not affected by any of the 
substantive changes that have been made in this final rule.
    The information collection requirements in Sec. Sec.  30.100, 
30.101, 30.102, 30.111, 30.113, 30.114, 30.206, 30.207, 30.212, 30.214, 
30.215, 30.221, 30.222, 30.226, 30.415, 30.416, 30.417, 30.505, 30.620 
and 30.702(b) of this rule were also submitted to and approved by OMB 
under the PRA and were assigned OMB Control No. 1215-0197 (expires July 
31, 2004). No public comments were received regarding this second group 
of information collection requirements, and they were not affected by 
any of the substantive changes that have been made in this final rule. 
However, this final rule revises the currently approved collection in 
OMB Control No. 1215-0197 by adding three new information collection 
requirements, and this revision of a currently approved collection will 
be submitted to OMB for review under the PRA upon publication of the 
rule. 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 
Sec. Sec.  30.112 and 30.213, and they relate to information required 
to be submitted by claimants as part of the EEOICPA claims adjudication 
process. One of the new collections will be implemented without any 
specific form (see section A below). The Department is proposing to 
create two new forms to implement the other new collections (see 
sections B and C below).

A. Supplemental Employment Evidence (Sec.  30.112)

    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. To do so, claimants 
submit either a Form EE-3 listing periods of alleged covered 
employment, or a Form EE-4 containing basic employment information in 
situations where specific employment information is not available. If 
the employment history provided on Form EE-3 or EE-4 cannot be 
verified, OWCP may ask the claimant to provide supplemental employment 
evidence in support of the alleged history. After it reviews the 
evidence of record on this point, OWCP will determine whether a period 
of covered employment has been established by a preponderance of the 
evidence.
    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 3,870

[[Page 78883]]

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 30 minutes per response for a total annual burden of 
1,935 hours.

B. Lung Cancer Information: Form EE/EN-8 (Sec.  30.213)

    Summary: Guidelines issued by HHS require OWCP to ask claimants for 
information regarding the employee's smoking history before OWCP can 
determine the probability of causation for lung cancer (the disease 
classified as ``lung cancer'' includes primary cancer of both the 
trachea and bronchus). This information is not requested if the 
employee is a member of the Special Exposure Cohort. If the claim is 
for lung cancer (or a secondary cancer for which lung cancer is a 
likely primary cancer), OWCP will send the claimant a Form EE/EN-8. 
Form EE/EN-8 informs the claimant that to determine the probability of 
causation of the claimed cancer, OWCP needs to know the employee's 
smoking history, and requests that the claimant submit the necessary 
information. All respondents will be required to certify that the 
information provided on Form EE/EN-8 is accurate and true.
    Need: OWCP cannot determine the probability of causation for lung 
cancer without this information.
    Respondents and proposed frequency of response: It is estimated 
that 3,021 respondents annually will file one Form EE/EN-8.
    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-8 is estimated to take an average 
of 5 minutes per response for a total annual burden of 252 hours.

C. Skin Cancer Information: Form EE/EN-9 (Sec.  30.213)

    Summary: Guidelines issued by HHS require OWCP to ask claimants for 
information regarding the employee's race/ethnicity before OWCP can 
determine the probability of causation for skin cancer. If the claim 
involves skin cancer (or a secondary cancer for which skin cancer is a 
likely primary cancer), OWCP will send the claimant a Form EE/EN-9. 
Form EE/EN-9 informs the claimant that in order to determine the 
probability of causation of the claimed cancer, OWCP needs to know the 
employee's race/ethnicity, and requests that the claimant submit the 
necessary information. All respondents will be required to certify that 
the information provided on Form EE/EN-9 is accurate and true.
    Need: OWCP cannot determine the probability of causation for skin 
cancer without this information.
    Respondents and proposed frequency of response: It is estimated 
that 1,057 respondents annually will file one Form EE/EN-9.
    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-9 is estimated to take an average 
of 5 minutes per response for a total annual burden of 88 hours.

D. Total Annual Burden and Request for Comments

    Total public burden: The new information collection requirements 
being added to OMB Control No. 1215-0197 have a total public burden 
hour estimate of 2,275. Using the current National average hourly 
earnings of $14.00, the total annual public cost for these new 
information collection requirements is estimated to be $31,850.00. 
There are no recordkeeping or collection costs associated with the new 
information collection requirements described above. The only operation 
and maintenance cost will be for postage and mailing. An estimated 
annual total of 7,948 mailed responses to these new information 
collection requirements at $0.37 (postage) + $0.03 (envelope) per 
response would be $3,179.20.
    Request for comments: The public is invited to provide comments on 
the above-noted revision to the currently approved collection in OMB 
Control No. 1215-0197 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 revision to the currently approved collection in OMB Control 
No. 1215-0197, 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 January 27, 2003.

VI. Executive Order 12866

    This rule is being treated as a ``significant regulatory action'' 
within the meaning of E.O. 12866 because it is economically 
significant, as defined in section 3(f)(1) of that Order. 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 final 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. The 
Department has also concluded that this final rule constitutes a 
``major rule,'' as that term is defined in the Small Business 
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804(2)), because 
of the effect on the economy noted above.
    Based upon the factors and assumptions set forth below, the 
Department's estimate of the aggregate cost of benefits and 
administrative expenses of this final regulatory action implementing 
the EEOICPA is, in millions of dollars (estimates for FY2004, FY2005 
and FY2006 are preliminary and will be reviewed during the budget 
formulation process):

[[Page 78884]]



----------------------------------------------------------------------------------------------------------------
                                                             FY2002     FY2003     FY2004     FY2005     FY2006
----------------------------------------------------------------------------------------------------------------
Admin....................................................       $136       $100        $55        $50        $33
Benefits.................................................        769        758        578        353        250
----------------------------------------------------------------------------------------------------------------

    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 easily determined. These benefit estimates 
further reflect contemplated medical costs of $1,500 per year for 90% 
of the covered claimants, while the remaining 10% will incur $125,000 
in 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 $3,000 per year for beryllium sensitivity, $4,000 per 
year for mild chronic beryllium disease, and $9,000 per year for more 
severe chronic beryllium disease. Benefit estimates for silicosis are 
based on figures obtained from DOE concerning the number of exposed 
employees and the expected incidence of silicosis, and medical costs of 
$4,000 per year. Benefit estimates for the claims based on the receipt 
of an award pursuant to section 5 of the RECA are based on figures for 
the number of claims provided by DOJ, and $4,000 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 
this 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. As noted above, 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 statutory terms, those choices have no 
significant impact on the cost of this regulatory action because they 
do not involve either the number of eligible recipients or the level of 
benefits to which they are entitled.
    OMB has reviewed this final 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 final rule prior to its 
effective date. The report will state that the Department has concluded 
that this final 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 final 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 final rule will have ``no 
significant economic impact upon a substantial number of small 
entities'' within the meaning of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.). 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 
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 first two of these provisions 
essentially adopt 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 both the 
Government and providers. The Government will benefit because OWCP did 
not have to 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 providers 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 private insurers. By adopting the uniform 
billing statement and a familiar cost control methodology, OWCP has

[[Page 78885]]

kept close to the billing environment with which pharmacies are already 
familiar. The methods chosen, therefore, represent systems that are 
familiar to the providers. The third of these three provisions will not 
have an effect on a substantial number of ``small entities'' under 
Small Business Administration 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 19,479 claims OWCP estimates it will accept over 
the first five years of the program, only approximately 5,727 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 Reform)

    This final rule has been drafted and reviewed in accordance with 
E.O. 12988 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 rule 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 13045 (Protection of Children From Environmental, 
Health Risks and Safety Risks)

    In accordance with E.O. 13045, the Department has evaluated the 
environmental health and safety effects of this rule on children. The 
Department has determined that the final rule will have no effect on 
children.

XII. Executive Order 13132 (Federalism)

    The Department has reviewed this final rule in accordance with E.O. 
13132 and has determined that it does not have any ``federalism 
implications.'' The final 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.''

XIII. Executive Order 13211 (Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use)

    In accordance with E.O. 13211, the Department has evaluated the 
effects of this final rule on energy supply, distribution or use, and 
has determined that this rule is not likely to have a significant 
adverse effect on them.

XIV. Submission to Congress and the General Accounting Office

    In accordance with the Small Business Regulatory Enforcement 
Fairness Act of 1996, 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).

XV. 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

    Organization and functions (Government agencies).

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 and 8149 (Reorganization Plan No. 
6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat. 
1263); 42 U.S.C. 7384d; 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 Director who, 
under the general supervision of

[[Page 78886]]

the Assistant Secretary, administers the programs assigned to OWCP by 
the Assistant Secretary.


Sec.  1.2  What functions are assigned to OWCP?

    The Assistant Secretary of Labor for Employment Standards has 
delegated authority and assigned responsibility to the Director of OWCP 
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 of 2000, as amended (42 U.S.C. 7384 et seq.), 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 of Labor 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 of 2000.


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, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat. 
1271), 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, 3 CFR, 1949-1953 Comp., 
page 1004, 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, was established in lieu 
of the Bureau of Employees' Compensation (39 FR 34722).

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

Subchapter C--Energy Employees Occupational Illness Compensation 
Program Act of 2000

PART 30-CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES 
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED

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, transferred or garnished?
30.16 What penalties may be imposed in connection with a claim under 
the Act?
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 that 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 illness dies?

Evidence and Burden of Proof

30.110 Who is entitled to compensation under the Act?

[[Page 78887]]

30.111 What is the claimant's responsibility with respect to burden 
of proof, production of documents, presumptions, and affidavits?
30.112 What kind of evidence is needed to establish covered 
employment and how will that evidence be evaluated?
30.113 What are the requirements for written medical documentation, 
contemporaneous records, and other records or documents?
30.114 What kind of evidence is needed to establish a covered 
medical condition and how will that evidence be evaluated?

Special Procedures for Certain Cancer Claims

30.115 For those claims that do not seek benefits pursuant to the 
Special Exposure Cohort provisions, what will OWCP do once it 
determines that a covered employee (or a survivor of such an 
employee) has established that he or she contracted cancer under 
Sec.  30.211?
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 a 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 employee contracted 
cancer after beginning employment at a DOE facility or an atomic 
weapons employer facility?
30.213 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?
30.214 How does a claimant establish that the employee is a member 
of the Special Exposure Cohort?
30.215 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 Claims Relating to Chronic Silicosis

30.220 What are the criteria for eligibility for benefits relating 
to chronic silicosis?
30.221 How does a claimant prove exposure to silica in the 
performance of duty?
30.222 How does a claimant establish that the employee has been 
diagnosed with chronic silicosis or has sustained a consequential 
injury, illness or disease?

Eligibility Criteria for Certain Uranium Employees

30.225 What are the criteria for eligibility for benefits for 
certain uranium employees?
30.226 How does a claimant establish that a covered uranium employee 
has sustained a consequential injury, illness or disease?
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 What must the claimant do if he or she objects to the 
recommended decision or wants to request a hearing?
30.311 What happens if the claimant does not object to the 
recommended decision or request a hearing within 60 days?
30.312 What will the FAB do if the claimant objects to the 
recommended decision 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 consider an objection to a determination by HHS 
with respect to an employee's dose reconstruction?
30.319 May a claimant request reconsideration of a final decision of 
the FAB?

Reopening Claims

30.320 Can a claim be reopened after the FAB has issued a final 
decision?
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 medical reports 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 What order of precedence will OWCP use to determine which 
survivors are entitled to receive compensation under the EEOICPA?
30.502 When is entitlement for survivors determined for purposes of 
the EEOICPA?

Payment of Claims and Offset for Certain Payments

30.505 What procedures will OWCP follow before it pays any 
compensation?
30.506 To whom and in what manner will OWCP pay compensation?
30.507 What compensation will be provided to covered employees who 
only establish beryllium sensitivity?
30.508 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?
30.603 Are there any limitations on what the representative may 
charge the claimant for his or her services?

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

[[Page 78888]]

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?

Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons 
Employers

30.615 What type of tort suits filed against beryllium vendors or 
atomic weapons employers may disqualify certain claimants from 
receiving benefits under EEOICPA?
30.616 What happens if this type of tort suit was filed prior to 
October 30, 2000?
30.617 What happens if this type of tort suit was filed during the 
period from October 30, 2000 through December 28, 2001?
30.618 What happens if this type of tort suit is filed after 
December 28, 2001?
30.619 Do all the parties to this type of tort suit have to take 
these actions?
30.620 How will OWCP ascertain whether a claimant filed this type of 
tort suit and if he or she has been disqualified from receiving any 
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; 31 U.S.C. 3716 and 3717; 42 U.S.C. 
7384d, 7384t and 7384u; Executive Order 13179, 65 FR 77487, 3 CFR, 
2000 Comp., p. 321; Secretary of Labor's Order No. 4-2001, 66 FR 
29656.

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 
of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et seq., provides 
for the payment of compensation benefits to covered employees and, 
where applicable, survivors of such employees, of the United States 
Department of Energy (DOE), 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, as amended 
(RECA), 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, Executive Order 13179 and 
Secretary's Order No. 4-2001, the primary responsibility for 
administering the Act, except for those activities assigned to the 
Secretary of Health and Human Services, the Secretary of Energy and the 
Attorney General, has been delegated to the Assistant Secretary of 
Labor for Employment Standards. The Assistant Secretary, in turn, has 
delegated the responsibility for administering the Act to the Director 
of the Office of Workers' Compensation Programs (OWCP). Except as 
otherwise provided by law, the Director of OWCP and his or her 
designees have the exclusive authority to administer, interpret and 
enforce the provisions of the Act.


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 
Sec. Sec.  30.100, 30.101, and 30.505 through 30.513). OWCP also 
provides assistance to claimants and potential claimants by providing 
information regarding eligibility and other program requirements, 
including information on completing claim forms and the types and 
availability of medical testing and diagnostic services related to 
covered illnesses. In addition, OWCP provides an administrative review 
process for claimants who disagree with its recommended and final 
adverse

[[Page 78889]]

decisions (see Sec. Sec.  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 has also promulgated regulations at 42 CFR part 81 establishing the 
guidelines that OWCP must follow 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 
Sec. Sec.  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 that are filed with OWCP, 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 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 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 hearing and reopening 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 of 
claimants before OWCP, subrogation of the United States, and the effect 
of tort suits 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, as amended (42 U.S.C. 7384 et seq.).
    (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 any facility, owned by 
an atomic weapons employer, that:
    (1) 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; and
    (2) Is designated as such in the list periodically published in the 
Federal Register by DOE.
    (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 7385f(b) of the EEOICPA (with respect 
to entitlement to only one payment of compensation) means only the 
payments specified in section 7384s(a)(1) ($150,000 lump sum payment) 
and in section 7384u(a) ($50,000 payment to beneficiaries under section 
5 of the RECA). Except as used in section 7385f(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) performed on either blood or lung lavage cells.
    (i) Beryllium vendor means the specific corporations and named 
predecessor corporations listed in section 7384l(6) of the Act and any 
of the facilities designated as such in the list periodically published 
in the Federal Register by 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 1/0 or 
higher; or
    (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 Act.

[[Page 78890]]

    (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 paragraphs 
(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.  30.220), or a covered 
uranium employee (see paragraph (q) of this section).
    (q) Covered uranium employee means an individual who has been 
determined by DOJ to be entitled to an award under section 5 of the 
RECA, regardless of whether the individual was the employee or the 
deceased employee's survivor.
    (r) Current or former employee as defined in 5 U.S.C. 8101(1) as 
used in Sec.  30.205(a)(1) 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 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 means the United States Department of Labor (DOL).
    (t) Department of Energy or 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 E.O. 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.
    (w) Disability means, for purposes of determining entitlement to 
payment under section 7384s(a)(1) of the Act, 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 sections 7384s(e) or 7384u(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)(2) of the RECA 
and in the Act) means:
    (1) Leukemia (other than chronic lymphocytic leukemia) provided 
that 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) Bone cancer;
    (4) Renal cancers; or
    (5) The following diseases, provided onset was at least 5 years 
after first exposure:
    (i) Multiple myeloma;
    (ii) Lymphomas (other than Hodgkin's disease); and
    (iii) Primary cancer of the:
    (A) Thyroid;
    (B) Male or female breast;
    (C) Esophagus;
    (D) Stomach;
    (E) Pharynx;
    (F) Small intestine;
    (G) Pancreas;
    (H) Bile ducts;
    (I) Gall bladder;
    (J) Salivary gland;
    (K) Urinary bladder;
    (L) Brain;
    (M) Colon;
    (N) Ovary; or
    (O) Liver (except if cirrhosis or hepatitis B is indicated).
    (6) The specified diseases designated in 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 surviving 
spouse, child, parent, grandchild and grandparent of a deceased covered 
employee.
    (2) Those individuals listed in paragraph (ee)(1) of this section 
do not include any individuals not living as of the time OWCP makes a 
lump-sum payment or payments to an eligible surviving beneficiary or 
beneficiaries.
    (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

[[Page 78891]]

performance of duty in accordance with sections 7384n(a) or 7384r(c) of 
the Act; 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 7384n(b) of the Act 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 or the atomic weapons employer facility 
at which the member was exposed to radiation.
    (gg) Workday means a single workshift whether or not it occurred on 
more than one calendar day.

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 
Act 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 published in the Federal Register. All questions relating to 
access, disclosure, and/or amendment of claims 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 district 
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, transferred or 
garnished?

    (a) Pursuant to section 7385f(a) of the Act, no claim for EEOICPA 
benefits may be assigned or transferred.
    (b) Provisions of the Social Security Act (42 U.S.C. 659) and 
regulations issued by the Office of Personnel Management at 5 CFR part 
581 permit the garnishment of lump-sum payments of EEOICPA benefits to 
collect overdue alimony and child support. A request to garnish a lump-
sum payment for either of these purposes should be submitted to the 
district office that is handling the EEOICPA claim, and must be 
accompanied by a copy of the pertinent State agency or court order.


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

    (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 Act. Included among these provisions is 18 
U.S.C. 1001. Enforcement of criminal provisions that may apply to 
claims under the Act is 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 et 
seq., 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's 
regulations implementing the PFCRA 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 or a 
State government in connection with a claim for benefits under the Act 
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 an employee to submit a Form EE-1 for OWCP to fully 
develop the claim. Copies of Form EE-1 may be obtained from OWCP, from 
DOE, or on the Internet at www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.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) The employee, or the person filing the claim on behalf of the 
employee, shall affirm that the information provided on the Form EE-1 
is true, and must inform OWCP of any subsequent changes to that 
information.
    (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) A 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 Act will be considered a 
claim. It will, however, be necessary for a survivor to submit a Form 
EE-2 for OWCP to fully develop the claim. Copies of Form EE-2 may be

[[Page 78892]]

obtained from OWCP, from DOE, or on the Internet at www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.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 development 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) The survivor, or the person filing the claim on behalf of the 
survivor, shall affirm that the information provided on the Form EE-2 
is true, and must inform OWCP of any subsequent changes to that 
information.
    (2) Except for the survivor of a covered uranium employee, the 
survivor 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) Claims 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 on the Internet at www.dol.gov/esa/regs/ 
compliance/owcp/eeoicp/main.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 in 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.  30.220).
    (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

[[Page 78893]]

to the exceptions expressly provided in the Act and these regulations, 
the claimant also bears the burden of providing to 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, OWCP 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.


Sec.  30.112  What kind of evidence is needed to establish covered 
employment and how will that evidence be evaluated?

    (a) Evidence of covered employment may include: employment records; 
pay stubs; tax returns; social security records; and written affidavits 
or declarations, subject to penalty of perjury, by the employee, 
survivor or any other person. However, no one document is required to 
establish covered employment and a claimant is not required to submit 
all of the evidence listed above. A claimant may submit other evidence 
not listed above to establish covered employment. To be acceptable as 
evidence, all documents and records must be legible. OWCP will accept 
photocopies, certified copies, and original documents and records.
    (b) DOE shall certify that it concurs with the employment 
information provided by the claimant, that it disagrees with the 
information provided by the claimant, or, after a reasonable search of 
its records and a reasonable effort to locate pertinent records not 
already in its possession, it can neither concur nor disagree with the 
information provided by the claimant.
    (1) If DOE certifies that it concurs with the employment 
information provided by the claimant, then the criterion for covered 
employment will be established.
    (2) If DOE certifies that it disagrees with the information 
provided by the claimant or that after a reasonable search of its 
records and a reasonable effort to locate pertinent records not already 
in its possession it can neither concur nor disagree with the 
information provided by the claimant, OWCP will evaluate the evidence 
submitted by the claimant to determine whether the claimant has 
established covered employment by a preponderance of the evidence. OWCP 
may request additional evidence from the claimant to demonstrate that 
the claimant has met the criterion for covered employment. Nothing in 
this section shall be construed to limit OWCP's ability to require 
additional documentation.
    (3) If the only evidence of covered employment is a self-serving 
affidavit and DOE either disagrees with the assertion of covered 
employment or cannot concur or disagree with the assertion of covered 
employment, then OWCP may reject the claim based upon a lack of 
evidence of covered employment.


Sec.  30.113  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 legible. OWCP will accept photocopies, certified copies, and 
original documents and records.
    (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 this section shall be construed to limit 
OWCP's ability to require additional documentation.
    (c) If a claimant submits a certified statement, by a person with 
knowledge of the facts, that the medical records containing a diagnosis 
and date of diagnosis of a covered medical condition no longer exist, 
then OWCP may consider other evidence to establish a diagnosis and date 
of diagnosis of a covered medical condition. However, if the certified 
statement is a self-serving document, OWCP may reject the claim based 
upon a lack of evidence of a covered medical condition.


Sec.  30.114  What kind of evidence is needed to establish a covered 
medical condition and how will that evidence be evaluated?

    (a) Evidence of a covered medical condition may include: A 
physician's report, laboratory reports, hospital records, death 
certificates, x-rays, magnetic resonance images or reports, computer 
axial tomography or other imaging reports, lymphocyte proliferation 
testings, beryllium patch tests, pulmonary function or exercise testing 
results, pathology reports including biopsy results and other medical 
records. A claimant is not required to submit all of the evidence 
listed in this paragraph. A claimant may submit other evidence that is 
not listed in this paragraph to establish a covered medical condition. 
Nothing in this section shall be construed to limit OWCP's ability to 
require additional documentation.
    (b) The medical evidence submitted will be used to establish the 
diagnosis and the date of diagnosis of the covered medical condition.
    (1) For covered beryllium illnesses, additional medical evidence, 
as set forth in Sec.  30.207, is required to establish a beryllium 
illness.
    (2) For chronic silicosis, additional medical evidence, as set 
forth in Sec.  30.222, is required to establish chronic silicosis.
    (3) For consequential injuries or illnesses, the claimant must also 
submit a physician's fully rationalized medical report showing the 
causal relationship between the resulting illness or injury and the 
covered medical condition.
    (c) OWCP will evaluate the medical evidence in accordance with 
recognized and accepted diagnostic criteria used by physicians to 
determine whether the claimant has established the medical condition 
for which compensation is sought in accordance with the requirements of 
the Act.

[[Page 78894]]

Special Procedures for Certain Cancer Claims


Sec.  30.115  For those claims that do not seek benefits pursuant to 
the Special Exposure Cohort provisions, what will OWCP do once it 
determines that a covered employee (or a survivor of such an employee) 
has established that he or she contracted cancer under Sec.  30.211?

    (a) Other than claims solely for a non-radiogenic cancer listed by 
HHS at 42 CFR 81.30, 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, development 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 provide OWCP, DOE and the claimant with the 
final dose reconstruction report. The final dose reconstruction record 
will be delivered to OWCP with the final dose reconstruction report and 
to the claimant upon request.
    (b) 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 of this part.

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 7384l, 7384n, 7384s and 7384t of the Act; for 
claims relating to employees with cancer under sections 7384l, 7384n, 
7384q and 7384t of the Act; for claims relating to chronic silicosis 
under sections 7384l, 7384r, 7384s and 7384t; and for claims relating 
to covered uranium employees under sections 7384t and 7384u. 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 both paragraphs (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 part) 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, during a period when beryllium 
dust, particles, or vapor may have been present at such a facility:
    (i) Employed at a DOE facility (as defined in Sec.  30.5(v) of this 
part); or
    (ii) Present at a DOE facility, or at a facility owned, operated, 
or occupied 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. Under this paragraph, exposure to beryllium in the 
performance of duty can be established whether or not the beryllium 
that may have been present at such facility was produced or processed 
for sale to, or use by, DOE.
    (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 employee 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, operated, or occupied by a beryllium vendor, 
because of employment by the United States, a beryllium vendor, or a 
contractor or subcontractor of a beryllium vendor 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 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) If the evidence shows that exposure occurred while the employee 
was employed or present at a facility during a time frame that is 
outside the relevant time frame indicated for that facility by DOE, 
OWCP may request that DOE provide additional information on the 
facility. OWCP will determine whether the evidence of record supports 
enlarging the relevant time frame for that facility.
    (c) If the evidence shows that exposure occurred while the employee 
was employed or present at a facility that would have to be designated 
by DOE as a beryllium vendor under section 7384m of the Act to be a 
covered facility, and that the facility has not been so designated, 
OWCP will deny the claim on the ground that the facility is not a 
covered facility.
    (d) 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 7384m 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 78895]]

Sec.  30.207  How does a claimant prove a 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), or (d) 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 a 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.

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 Sec.  30.5(dd) of this part; and
    (1) Is a member of the Special Exposure Cohort (as described in 
Sec.  30.214(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.  30.214(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)(i) Is/was a DOE employee who contracted that cancer after 
beginning employment at a DOE facility; or
    (ii) Is/was a DOE contractor employee who contracted that cancer 
after beginning employment at a DOE facility; or
    (iii) Is/was an atomic weapons employee who contracted that cancer 
after beginning employment at an atomic weapons employer facility; and
    (2) 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 employee 
contracted cancer after beginning employment at a DOE facility or an 
atomic weapons employer facility?

    (a) Proof of employment by the DOE or a DOE contractor at a DOE 
facility, or by an atomic weapons employer at an atomic weapons 
employer facility, may be made by the submission of any trustworthy 
records 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.
    (b) If the evidence shows that exposure occurred while the employee 
was employed at a facility during a time frame that is outside the 
relevant time frame indicated for that facility by DOE, OWCP may 
request that DOE provide additional information on the facility. OWCP 
will determine whether the evidence of record supports enlarging the 
relevant time frame for that facility.
    (c) If the evidence shows that exposure occurred while the employee 
was employed by an employer that would have to be designated by DOE as 
an atomic weapons employer under section 7384l(4) of the Act to be a 
covered employer, and that the employer has not been so designated, 
OWCP will deny the claim on the ground that the employer is not a 
covered atomic weapons employer.
    (d) 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.  30.213  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, has issued 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 at 42 CFR part 81. 
Claimants should consult those guidelines for information regarding the 
type of evidence that will be considered by OWCP, in addition to the 
employee's radiation dose reconstruction that will be provided by HHS, 
in making this determination.


Sec.  30.214  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

[[Page 78896]]

Sec.  30.210(a), the employee must have been a DOE employee, a 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 1, 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 an 
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 records 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. If the evidence shows that exposure 
occurred while the employee was employed by an employer that would have 
to be designated by DOE as an atomic weapons employer under section 
7384l(4) of the Act to be a covered employer, and that the employer has 
not been so designated, OWCP will deny the claim on the ground that the 
employer is not a covered atomic weapons employer.
    (d) 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.  30.215  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 Claims Relating to Chronic Silicosis


Sec.  30.220  What are the criteria for eligibility for benefits 
relating to chronic silicosis?

    To establish eligibility for benefits for chronic silicosis, an 
employee or his or her survivor must show that:
    (a) The employee is a DOE employee, or a DOE contractor employee, 
who was present for a number of workdays aggregating at least 250 
workdays 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 has been diagnosed with chronic 
silicosis (as defined in Sec.  30.5(j)); or
    (b) The employee has been diagnosed with an illness or disease that 
arose as a consequence of the accepted chronic silicosis.


Sec.  30.221  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 or experiments related to an atomic 
weapon may be made by the submission of any trustworthy 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) If the evidence shows that exposure occurred while the employee 
was employed and present at a facility during a time frame that is 
outside the relevant time frame indicated for that facility by DOE, 
OWCP may request that DOE provide additional information on the 
facility. OWCP will determine whether the evidence of record supports 
enlarging the relevant time frame for that facility.
    (c) 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.
    (d) For purposes of satisfying the 250 workday requirement of Sec.  
30.220(a), the claimant may aggregate the days of service at more than 
one qualifying site.


Sec.  30.222  How does a claimant establish that the employee has been 
diagnosed with chronic silicosis or has sustained a consequential 
injury, illness or disease?

    (a) 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 one of the following:
    (1) 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 1/0 or 
higher; or
    (2) Results from a computer assisted tomograph or other imaging 
technique that are consistent with silicosis; or
    (3) Lung biopsy findings consistent with silicosis.
    (b) An injury, illness, impairment or disability sustained as a 
consequence of accepted chronic silicosis covered by the provisions of 
Sec.  30.220(a) must be established with a fully rationalized medical 
report by a physician that shows the relationship between the injury, 
illness, impairment or disability

[[Page 78897]]

and the accepted chronic silicosis. Neither the fact that the injury, 
illness, impairment or disability manifests itself after a diagnosis of 
accepted chronic silicosis, nor the belief of the claimant that the 
injury, illness, impairment or disability was caused by the accepted 
chronic silicosis, is sufficient in itself to prove a causal 
relationship.

Eligibility Criteria for Certain Uranium Employees


Sec.  30.225  What are the criteria for eligibility for benefits for 
certain uranium employees?

    In order to be eligible for benefits under this section, the 
claimant must establish the criteria set forth in either paragraph (a) 
or paragraph (b) of this section:
    (a) The Attorney General has determined that the claimant is a 
covered uranium employee who is entitled to payment of $100,000 as 
compensation due under section 5 of the RECA for a claim made under 
that statute (there is, however, no requirement that the claimant or 
surviving eligible beneficiary has actually received payment pursuant 
to the RECA). If a deceased employee's survivor has been determined to 
be entitled to such an award, his or her survivor(s), if any, will only 
be entitled to EEOICPA compensation in accordance with section 7384u(e) 
of the Act.
    (b) The covered uranium employee has been diagnosed with an illness 
or disease that arose as a consequence of the medical condition for 
which he or she was determined to be entitled to payment of $100,000 as 
compensation due under section 5 of the RECA.


Sec.  30.226  How does a claimant establish that a covered uranium 
employee has sustained a consequential injury, illness or disease?

    An injury, illness, impairment or disability sustained as a 
consequence of a medical condition covered by the provisions of Sec.  
30.225(a) 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 accepted medical condition. Neither 
the fact that the injury, illness, impairment or disability manifests 
itself after a diagnosis of a medical condition covered by the 
provisions of Sec.  30.225(a), nor the belief of the claimant that the 
injury, illness, impairment or disability was caused by such a 
condition, is sufficient in itself to prove a causal relationship.

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 before the FAB. 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), any 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 a notice of the claimant's right 
to file objections with, and request a hearing before, the FAB.


Sec.  30.307  To whom is the recommended decision sent?

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

Hearings and Final Decisions on Claims


Sec.  30.310  What must the claimant do if he or she objects to the 
recommended decision or wants to request a hearing?

    (a) Within 60 days from the date the recommended decision is 
issued, the claimant must state, in writing, whether he or she objects 
to any of the findings of fact and/or conclusions of law contained in 
such decision, including HHS's reconstruction of the radiation dose to 
which the employee was exposed (if any), and whether a hearing is 
desired. This written statement should be filed with the FAB at the 
address indicated in the notice accompanying the recommended decision.
    (b) For purposes of determining whether the written statement 
referred to in paragraph (a) of this section has been timely filed with 
the FAB, the statement will be considered to be ``filed'' on the date 
that the claimant mails it to the FAB, as determined by postmark, or on 
the date that such written statement is actually received by the FAB, 
whichever is the earliest determinable date.


Sec.  30.311  What happens if the claimant does not object to the 
recommended decision or request a hearing within 60 days?

    (a) If the claimant does not file a written statement that objects 
to the recommended decision and/or requests a hearing within the period 
of time allotted in Sec.  30.310, the FAB may issue a final decision 
accepting the recommendation of the district office as provided in 
Sec.  30.316.
    (b) If the recommended decision accepts all or part of a claim for 
compensation, the FAB may issue a final 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 will the FAB do if the claimant objects to the 
recommended decision but does not request a hearing?

    If the claimant files a written statement that objects to the 
recommended decision within the period of time allotted in Sec.  30.310 
but does not request a hearing, the FAB will consider any objections by 
means of a review of the written record. If the claimant only objects 
to part of the recommended decision, the FAB may issue a final decision 
accepting the remaining part of the recommendation of the district 
office without first reviewing the written record (see Sec.  30.316).

[[Page 78898]]

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

    (a) The FAB reviewer will consider the written 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 written statement 
that objects to the recommended decision, 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.
    (c) Any objection that is not presented to the FAB reviewer, 
including any objection to HHS's reconstruction of the radiation dose 
to which the employee was exposed (if any), whether or not the 
pertinent issue was previously presented to the district office, is 
deemed waived for all purposes.


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. As part of the hearing process, the FAB reviewer will 
consider the written 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.
    (1) The FAB reviewer will try to set the hearing at a place that is 
within commuting distance of the claimant's residence, but will not be 
able to do so in all cases. Therefore, for reasons of economy, the 
claimant may be required to travel a roundtrip distance of up to 200 
miles to attend the hearing.
    (2) In unusual circumstances, the FAB reviewer may set a place for 
the hearing that is more than 200 miles roundtrip from the claimant's 
residence. However, in that situation, OWCP will reimburse the claimant 
for reasonable and necessary travel expenses incurred to attend the 
hearing if he or she submits a written reimbursement request that 
documents such expenses.
    (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 
hearing date. If the claimant only objects to part of the recommended 
decision, the FAB reviewer may issue a final decision accepting the 
remaining part of the recommendation of the district office without 
first holding a hearing (see Sec.  30.316). Any objection that is not 
presented to the FAB reviewer, including any objection to HHS's 
reconstruction of the radiation dose to which the employee was exposed 
(if any), whether or not the pertinent issue was previously presented 
to the district office, is deemed waived for all purposes.
    (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 the hearing 
is requested. 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, it 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 one of the tests 
of paragraph (b) of this section and cannot be accommodated on the same 
docket, no further opportunity for a hearing will be provided. Instead, 
the FAB will consider the claimant's objections 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.


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

    (a) If the claimant does not file a written statement that objects 
to the recommended decision and/or requests a hearing within the period 
of time allotted in Sec.  30.310, or if the claimant waives any 
objections to all or part of the recommended decision, the FAB may 
issue a final decision accepting the recommendation of the district 
office, either in whole or in part (see Sec. Sec.  30.311, 30.312 and 
30.314(b)).
    (b) If the claimant objects to all or part of the recommended 
decision, the FAB reviewer will issue a final 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 received the written statement that objected 
to the recommended decision and/or requested a hearing shall be 
considered a final decision of the FAB on the one-year anniversary of 
such date. Any recommended decision described in Sec.  30.311 that is 
pending at the FAB for more than one year from the date that the period 
of time described in Sec.  30.310 expired shall be considered a final 
decision of 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 date of 
issuance of such decision, unless a timely request for reconsideration 
under Sec.  30.319 has been filed.
    (e) A copy of the final decision of the FAB will be mailed to the 
claimant's

[[Page 78899]]

last known address. However, if the claimant has a designated 
representative before OWCP, the copy of the final 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 final 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 final decision, whether or not requested to do so by the 
claimant.


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

    (a) If the claimant objects to HHS's reconstruction of the 
radiation dose to which the employee was exposed, the FAB will evaluate 
the factual findings upon which HHS based its dose reconstruction. If 
these factual findings do not appear to be supported by substantial 
evidence, the claim 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 at 42 CFR part 82, 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 final 
decision of the FAB?

    (a) A claimant may request reconsideration of a final decision of 
the FAB by filing a written request with the FAB within 30 days from 
the date of issuance of such decision. If a timely request for 
reconsideration is made, the decision in question will no longer be 
considered ``final'' under Sec.  30.316(d).
    (b) For purposes of determining whether the written request 
referred to in paragraph (a) of this section has been timely filed with 
the FAB, the request will be considered to be ``filed'' on the date 
that the claimant mails it to the FAB, as determined by postmark, or on 
the date that such written request is actually received by the FAB, 
whichever is the earliest determinable date.
    (c) If the FAB grants the request for reconsideration, it will 
consider the written record of the claim again and issue a new final 
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 considered ``final'' 
on the date the request is denied.
    (d) A claimant may not seek judicial review of a decision on his or 
her claim under the EEOICPA until OWCP's decision on the claim is final 
pursuant to Sec.  30.316(d).

Reopening Claims


Sec.  30.320  Can a claim be reopened after the FAB has issued a final 
decision?

    (a) At any time after the FAB has issued a final decision pursuant 
to Sec.  30.316, and without regard to whether new evidence or 
information is presented or obtained, the Director for Energy Employees 
Occupational Illness Compensation may reopen a claim and return it to 
the district office for such further development as may be necessary, 
to be followed by a new recommended decision. The Director may also 
vacate any other type of decision issued by the FAB.
    (b) At any time after the FAB has issued a final decision pursuant 
to Sec.  30.316, a claimant may file a written request that the 
Director for Energy Employees Occupational Illness Compensation reopen 
his or her claim, provided that the claimant also submits new evidence 
of either covered employment or exposure to radiation, beryllium or 
silica, or identifies either a change in the probability of causation 
guidelines, a change in the dose reconstruction methods or an addition 
of a class of employees to the Special Exposure Cohort.
    (1) If the Director concludes that the evidence submitted or matter 
identified in support of the claimant's request is material to the 
claim, the Director will reopen the claim and return it to the district 
office for such further development as may be necessary, to be followed 
by a new recommended decision.
    (2) New evidence of a medical condition described in subpart C of 
these regulations is not sufficient to support a written request to 
reopen a claim for such a condition under paragraph (b) of this 
section.
    (c) The decision whether or not to reopen a claim under this 
section is solely within the discretion of the Director for Energy 
Employees Occupational Illness Compensation and is not reviewable. If 
the Director reopens a claim pursuant to paragraphs (a) or (b) of this 
section, the resulting new recommended decision will be subject to the 
adjudicatory process described in this subpart. However, neither the 
district office nor the FAB can consider any objection concerning the 
Director's decision to reopen a claim under this section.

Subpart E--Medical and Related Benefits

Medical Treatment and Related Issues


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

    (a) A 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. When a 
survivor receives payment, OWCP will pay for such treatment if the 
covered employee died before the claim was paid. 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.
    (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

[[Page 78900]]

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 7384t of the Act, 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?

    (a) 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, a roundtrip distance of up to 200 miles is considered a 
reasonable distance to travel.
    (b) If travel of more than 200 miles is contemplated, or air 
transportation or overnight accommodations will be needed, the employee 
must submit a written request to OWCP for prior approval with 
information describing the circumstances and necessity for such travel 
expenses. OWCP will approve the request if it determines that the 
travel expenses are reasonable and necessary. Requests for travel 
expenses that are often approved include those resulting from referrals 
to a specialist for further medical treatment, and those involving air 
transportation of an employee who lives in a remote geographical area 
with limited local medical services.
    (c) The standard form designated for medical travel refund requests 
is Form OWCP-957 and should be used to seek reimbursement under this 
section. This form can be obtained from OWCP.


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 the 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?

    (a) 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. Also, OWCP may send a case file for second 
opinion review where an actual examination is not needed, or where the 
employee is deceased.
    (b) If the initial examination is disrupted by someone accompanying 
the employee, OWCP will schedule another examination with a different 
qualified physician. The employee will not be entitled to have anyone 
else present at the subsequent 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.


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. 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.
    (c) If the initial referee examination is disrupted by someone 
accompanying the employee, OWCP will schedule another examination with 
a different qualified physician. The employee will not be entitled to 
have anyone else present at the subsequent referee 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.


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

    OWCP will pay second opinion and referee medical specialists 
directly. OWCP will also 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 general, medical reports from the employee's attending physician 
should include the following:
    (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;

[[Page 78901]]

    (h) The treatment given or recommended for the claimed occupational 
illness; and
    (i) All other material findings.


Sec.  30.416  How and when should medical reports 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.


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?

    For the purposes of paying compensation to survivors, EEOICPA 
applies the following definitions:
    (a) Surviving spouse means the wife or husband of a deceased 
covered employee who was married to that individual for at least one 
year immediately before the death of that individual.
    (b) Child or children includes a recognized natural child of a 
deceased covered employee, a stepchild who lived with that individual 
in a regular parent-child relationship, and an adopted child of that 
individual.
    (c) Parent includes fathers and mothers of a deceased covered 
employee through adoption.
    (d) Grandchild means a child of a child of a deceased covered 
employee.
    (e) Grandparent means a parent of a parent of a deceased covered 
employee.


Sec.  30.501  What order of precedence will OWCP use to determine which 
survivors are entitled to receive compensation under the EEOICPA?

    If OWCP determines that a survivor or survivors are entitled to 
receive compensation under the 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 a surviving spouse, the compensation shall be paid 
to that individual.
    (b) If there is no surviving spouse, the compensation shall be paid 
in equal shares to all children of the deceased covered employee.
    (c) If there is no surviving spouse and no children, the 
compensation shall be paid in equal shares to the parents of the 
deceased covered employee.
    (d) If there is no surviving spouse, no children and no parents, 
the compensation shall be paid in equal shares to all grandchildren of 
the deceased covered employee.
    (e) If there is no surviving spouse, no children, no parents and no 
grandchildren, the compensation shall be paid in equal shares to the 
grandparents of the deceased covered employee.
    (f) Notwithstanding the other paragraphs of this section, if there 
is a surviving spouse and at least one child of the deceased covered 
employee who is a minor at the time of payment and who is not a 
recognized natural child or adopted child of such surviving spouse, 
half of the compensation shall be paid to the surviving spouse, and the 
other half of the compensation shall be paid in equal shares to each 
child of the deceased covered employee who is a minor at the time of 
payment.


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

    Entitlement to any lump-sum payment for survivors under the EEOICPA 
will be determined as of the time OWCP makes such a payment.

Payment of Claims and Offset for Certain Payments


Sec.  30.505  What procedures will OWCP follow before it pays any 
compensation?

    (a) In cases involving the approval of a claim, OWCP shall take all 
necessary steps to determine the amount of any offset of EEOICPA 
benefits, and to verify the identity of the covered employee or the 
eligible surviving beneficiary or beneficiaries. To perform these 
tasks, OWCP may conduct any investigation, require any claimant 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 or persons. OWCP shall also require every claimant to execute 
and provide any necessary affidavit described in Sec.  30.620 of these 
regulations. Should a claimant fail or refuse to execute an affidavit 
or release of information, or fail or refuse to provide a requested 
record or document or to provide access to information, such failure or 
refusal may be deemed to be a rejection of the

[[Page 78902]]

payment, unless the claimant does not have and cannot obtain the legal 
authority to provide, release, or authorize access to the required 
information, records, or documents.
    (b) To determine the amount of any offset, OWCP shall require the 
covered employee or each eligible surviving beneficiary filing a claim 
under this part to execute and provide an affidavit (or declaration 
made under oath on Form EE-1 or EE-2) reporting the amount of any 
payment made pursuant to a final judgment or settlement in litigation 
(other than litigation for workers' compensation) seeking damages for 
any occupational illnesses covered by the EEOICPA. Even if someone 
other than the covered employee receives a payment pursuant to a final 
judgment or settlement in litigation seeking damages for any 
occupational illness covered by the EEOICPA (e.g., the surviving spouse 
of a deceased covered employee), the receipt of any such payment must 
be reported since it constitutes a payment solely for an occupational 
illness covered by the EEOICPA.
    (1) For the purposes of this paragraph only, ``litigation seeking 
damages'' refers to any request or demand for money by the covered 
employee, or by another individual if the covered employee is deceased, 
made or sought in a civil action or in anticipation of the filing of a 
civil action, solely for any occupational illness covered by the 
EEOICPA. This term does not also include any request or demand for 
money made or sought pursuant to a life insurance or health insurance 
contract, or any request or demand for money made or sought by an 
individual other than the covered employee in that individual's own 
right (e.g., a spouse's claim for loss of consortium), or any request 
or demand for money made or sought by the covered employee or the 
estate of a deceased covered employee not for any occupational illness 
covered by the EEOICPA (e.g., a covered employee's claim for damage to 
real or personal property).
    (2) If a payment has been made pursuant to a final judgment or 
settlement in litigation seeking damages, OWCP shall subtract a portion 
of the dollar amount of such payment from the benefit payments to be 
made under the EEOICPA. OWCP will calculate the amount to be subtracted 
from the benefit payments in the following manner:
    (i) OWCP will first determine the value of the payment made 
pursuant to either a final judgment or settlement in litigation seeking 
damages by adding the dollar amount of any monetary damages (other than 
contingent awards) and any medical expenses for treatment provided on 
or after the date the covered employee filed a claim for EEOICPA 
benefits that were paid for under the final judgment or settlement. In 
the event that these payments include a ``structured'' settlement 
(where a party makes an initial cash payment and also arranges, usually 
through the purchase of an annuity, for payments in the future), OWCP 
will usually accept the cost of the annuity to the purchaser as the 
dollar amount of the right to receive the future payments.
    (ii) OWCP will then make certain deductions from the above dollar 
amount to arrive at the dollar amount to be subtracted from any unpaid 
EEOICPA benefits. Allowable deductions consist of attorney's fees OWCP 
deems reasonable, and itemized costs of suit (out-of-pocket 
expenditures not part of the normal overhead of a law firm's operation 
like filing fees, travel expenses, witness fees, and court reporter 
costs for transcripts) provided that adequate supporting documentation 
is submitted to OWCP.
    (iii) The EEOICPA benefits that will be reduced will consist of any 
unpaid lump-sum payments and medical benefits payable in the future. In 
those cases where it has not yet paid EEOICPA benefits, OWCP will 
reduce such benefits on a dollar-for-dollar basis, beginning with the 
lump-sum payment first. If the amount to be subtracted exceeds the 
lump-sum payment, OWCP will reduce ongoing EEOICPA medical benefits 
payable in the future by the amount of any remaining surplus. This 
means that OWCP will apply the amount it would otherwise pay to 
reimburse the covered employee for any ongoing EEOICPA medical 
treatment to the remaining surplus until it is absorbed. In addition to 
this reduction of ongoing EEOICPA medical benefits, OWCP will not be 
the first payer for any medical expenses that are the responsibility of 
another party (who will instead be the first payer) as part of a final 
judgment or settlement in litigation seeking damages.
    (3) The above reduction of EEOICPA benefits will not occur if an 
EEOICPA claimant has had his or her award under section 5 of the RECA 
reduced by the full amount of a payment made pursuant to a final 
judgment or settlement in litigation seeking damages. In that case, 
OWCP will not reduce EEOICPA benefits by the same amount (but will 
reduce EEOICPA benefits by the amount of any surplus final judgment or 
settlement payment that remains).
    (c) Except as provided in Sec.  30.506(b) of these regulations, 
when OWCP has verified the identity of every claimant who is entitled 
to the compensation payment, or to a share of the compensation payment, 
and has determined the correct amount of the payment or the share of 
the payment, OWCP shall notify every claimant, or every person with 
power of attorney for a claimant, and require such person or persons to 
sign a Form EE-20 indicating acceptance of the payment. Such form shall 
be signed and returned to OWCP within sixty days of the date of the 
form or within such greater period as may be allowed by OWCP. Failure 
to sign and return the 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 
payment, in which case the person who then receives 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.


Sec.  30.506  To whom and in what manner will OWCP pay compensation?

    (a) Except with respect to claims related to beryllium sensitivity, 
payment shall be made to the covered employee, or to the person with 
power of attorney for the covered employee, unless the covered employee 
is deceased at the time of the payment. In all cases involving a 
deceased covered employee, payment shall be made to the eligible 
surviving beneficiary or beneficiaries, or to every person with power 
of attorney for an eligible surviving beneficiary, in accordance with 
the terms and conditions specified in sections 7384s(e) and 7384u(e) of 
the EEOICPA.
    (b) Compensation for any consequential illness or disease is 
limited to payment of medical benefits for that illness or disease.
    (c) Rejected compensation payments, or shares of compensation 
payments, shall not be distributed to other eligible surviving 
beneficiaries, but shall be returned to the Fund.
    (d) No covered employee may receive more than one lump-sum payment 
under these regulations for any occupational illnesses he or she 
contracted. However, any individual, including a covered employee who 
has received a lump-sum payment for his or her own occupational 
illness, may receive one lump-sum payment for each deceased covered 
employee for whom he or she qualifies as an eligible surviving 
beneficiary.

[[Page 78903]]

Sec.  30.507  What compensation will be provided to covered employees 
who only establish beryllium sensitivity?

    The establishment of beryllium sensitivity does not entitle a 
covered employee, or the eligible surviving beneficiary or 
beneficiaries of a deceased covered employee, to any lump-sum payment 
provided for under the EEOICPA. Instead, a covered employee whose sole 
occupational illness is beryllium sensitivity shall receive beryllium 
sensitivity monitoring, as well as medical benefits for the treatment 
of this occupational illness in accordance with Sec.  30.400 of these 
regulations.


Sec.  30.508  What is beryllium sensitivity monitoring?

    Beryllium sensitivity monitoring shall consist of medical 
examinations to confirm and monitor the extent and nature of a covered 
employee's beryllium sensitivity. Monitoring shall also include regular 
medical examinations, with diagnostic testing, to determine if the 
covered employee 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, 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 7384s or 7384u 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 (31 
U.S.C. 3701 et seq.), 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 a 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 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.
    (1) 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.
    (2) A representative does not have authority to sign the Form EE-
20, described in Sec.  30.505(c) of these regulations, which indicates 
acceptance of a compensation payment.


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.


Sec.  30.603  Are there any limitations on what the representative may 
charge the claimant for his or her services?

    (a) Notwithstanding any contract, the representative may not 
receive, for services rendered in connection with the claim, more than 
the percentages of the lump-sum payment made to the claimant set out in 
paragraph (b) of this section.

[[Page 78904]]

    (b) The percentages referred to in paragraph (a) of this section 
are:
    (1) 2 percent for the filing of an initial claim with OWCP; plus
    (2) 10 percent with respect to objections to a recommended decision 
denying payment of lump-sum compensation.
    (c) Any representative who violates this section shall be fined not 
more than $5,000.
    (d) The fee limitations described in this section shall not apply 
with
    respect to representative services that are not rendered in 
connection with a claim pending before OWCP.

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 Act, 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 which the United States is entitled to offset 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.

Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons 
Employers


Sec.  30.615  What type of tort suits filed against beryllium vendors 
or atomic weapons employers may disqualify certain claimants from 
receiving benefits under EEOICPA?

    Section 7385d of the EEOICPA provides that a tort suit (other than 
an administrative or judicial proceeding for workers' compensation) 
solely for injuries arising out of an exposure to beryllium or 
radiation covered by the EEOICPA, filed against a beryllium vendor or 
an atomic weapons employer, by a covered employee, or an eligible 
surviving beneficiary or beneficiaries of a deceased covered employee 
without an independent cause of action, will disqualify that individual 
or individuals from receiving benefits under the EEOICPA unless the 
suit is terminated in accordance with the requirements of Sec. Sec.  
30.616 through 30.619 of these regulations.


Sec.  30.616  What happens if this type of tort suit was filed prior to 
October 30, 2000?

    (a) If a tort suit described in Sec.  30.615 was filed prior to 
October 30, 2000, the claimant or claimants will not be disqualified 
from receiving any EEOICPA benefits to which they may be found entitled 
if the tort suit was terminated in any manner prior to December 28, 
2001.
    (b) If a tort suit described in Sec.  30.615 was filed prior to 
October 30, 2000 and was pending as of December 28, 2001, the claimant 
or claimants will be disqualified from receiving any EEOICPA benefits 
unless they dismiss the tort suit prior to December 31, 2003.


Sec.  30.617  What happens if this type of tort suit was filed during 
the period from October 30, 2000 through December 28, 2001?

    (a) If a tort suit described in Sec.  30.615 was filed during the 
period from October 30, 2000 through December 28, 2001, the claimant or 
claimants will be disqualified from receiving any EEOICPA benefits 
unless they dismiss the tort suit on or before the last permissible 
date described in paragraph (b) of this section.

[[Page 78905]]

    (b) The last permissible date is the later of:
    (1) April 30, 2003; or
    (2) The date that is 30 months after the date the claimant or 
claimants first became aware that an illness of the covered employee 
may be connected to his or her exposure to beryllium or radiation 
covered by the EEOICPA. For purposes of determining when this 30-month 
period begins, ``the date the claimant or claimants first became 
aware'' will be deemed to be the date they received either a 
reconstructed dose from HHS, or a diagnosis of a covered beryllium 
illness, as applicable.


Sec.  30.618  What happens if this type of tort suit is filed after 
December 28, 2001?

    (a) If a tort suit described in Sec.  30.615 is filed after 
December 28, 2001, the claimant or claimants will be disqualified from 
receiving any EEOICPA benefits if a final court decision is entered 
against them.
    (b) If a tort suit described in Sec.  30.615 is filed after 
December 28, 2001 and a final court decision has not yet been entered 
against the claimant or claimants, they will also be disqualified from 
receiving any EEOICPA benefits unless they dismiss the tort suit on or 
before the last permissible date described in paragraph (c) of this 
section.
    (c) The last permissible date is the later of:
    (1) April 30, 2003; or
    (2) The date that is 30 months after the date the claimant or 
claimants first became aware that an illness of the covered employee 
may be connected to his or her exposure to beryllium or radiation 
covered by the EEOICPA. For purposes of determining when this 30-month 
period begins, ``the date the claimant or claimants first became 
aware'' will be deemed to be the date they received either a 
reconstructed dose from HHS, or a diagnosis of a covered beryllium 
illness, as applicable.


Sec.  30.619  Do all the parties to this type of tort suit have to take 
these actions?

    The type of tort suits described in Sec.  30.615 may be filed by 
more than one individual, each with a different cause of action. For 
example, a tort suit may be filed against a beryllium vendor by both a 
covered employee and his or her spouse, with the covered employee 
filing for chronic beryllium disease and the spouse filing for loss of 
consortium due to the covered employee's exposure to beryllium. 
However, since the spouse of a living covered employee could not be an 
eligible surviving beneficiary under the EEOICPA, the spouse would not 
have to comply with the termination requirements of Sec. Sec.  30.616 
through 30.618. A similar result would occur if a tort suit were filed 
by both the spouse of a deceased covered employee and other family 
members (such as children of the deceased covered employee). In this 
case, the spouse would be the only eligible surviving beneficiary of 
the deceased covered employee under the EEOICPA because the other 
family members could not be eligible for benefits while he or she was 
alive. As a result, the spouse would be the only party to the tort suit 
who would have to comply with the termination requirements of 
Sec. Sec.  30.616 through 30.618.


Sec.  30.620  How will OWCP ascertain whether a claimant filed this 
type of tort suit and if he or she has been disqualified from receiving 
any benefits under the EEOICPA?

    Prior to authorizing payment on a claim, OWCP will require each 
claimant to execute and provide an affidavit stating if he or she filed 
a tort suit (other than an administrative or judicial proceeding for 
workers' compensation) against either a beryllium vendor or an atomic 
weapons employer, solely for injuries arising out of an exposure to 
beryllium or radiation covered by the EEOICPA, and if so, the current 
status of such tort suit. OWCP may also require the submission of any 
supporting evidence 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 Form OWCP-1500 or CMS-1500 (for professional charges), Form 
OWCP-92 or UB-92 (for hospitals), Form 79-1A (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 Centers for 
Medicare and Medicaid Services Common Procedure Coding System (CCPCS) 
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 Form OWCP-92 or UB-92. The provider 
shall identify each outpatient radiology service, outpatient pathology 
service and physical therapy service performed, using CCPCS/CPT codes 
with a brief narrative description. The charge for each individual 
service, or the total charge for all identical services, should also 
appear on the form.
    (ii) Other outpatient hospital services for which CCPCS/CPT codes 
exist shall also be coded individually using the coding scheme noted in 
this section. Services for which there are no CCPCS/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 
CCPCS/CPT codes and furnishing the corresponding diagnostic codes using 
the ICD-9-CM.
    (2) Pharmacies shall itemize charges for prescription medications, 
appliances, or supplies on Form 79-1A 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

[[Page 78906]]

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 
Form OWCP-1500 or CMS-1500 (for physicians), Form OWCP-92 or UB-92 (for 
hospitals), or Form 79-1A (for pharmacies); contain the signature or 
signature stamp of the provider; and identify the procedures using 
CCPCS/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 Form OWCP-1500 or CMS-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 CCPCS/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 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 CCPCS/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 CCPCS/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 Centers for 
Medicare and Medicaid Services (CMS).
    (b) OWCP shall assign the relative value units (RVUs) published by 
CMS to all services for which CMS has made assignments, using the most 
recent

[[Page 78907]]

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 CMS and as 
updated or revised by CMS from time to time. OWCP will devise 
conversion factors for each category of service, and in doing so may 
adapt CMS 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 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.
    (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 CMS (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 CMS 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 CMS in the 
form of their PPS Pricer software program. The software takes into 
consideration the type of facility, census division, actual geographic 
location 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 CMS 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 CMS'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 on the Internet at www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.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.

[[Page 78908]]

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;
    (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 OWCP 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

[[Page 78909]]

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 OWCP representative 
named pursuant to 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.
    (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;

[[Page 78910]]

    (2) CMS; 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 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 13th day of December, 2002.
Elaine L. Chao,
Secretary of Labor.
[FR Doc. 02-31841 Filed 12-24-02; 8:45 am]
BILLING CODE 4510-CR-P