[Federal Register Volume 71, Number 250 (Friday, December 29, 2006)]
[Rules and Regulations]
[Pages 78520-78568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21839]



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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; Claims for Compensation Under the Energy 
Employees Occupational Illness Compensation Program Act of 2000, as 
Amended; Final Rule

  Federal Register / Vol. 71, No. 250 / Friday, December 29, 2006 / 
Rules and Regulations  

[[Page 78520]]


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 1 and 30

RIN 1215-AB51


Performance of Functions; 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 June 8, 2005, the Department of Labor (DOL) published 
interim final regulations that govern its responsibilities under the 
Energy Employees Occupational Illness Compensation Program Act of 2000, 
as amended (EEOICPA or Act). Part B of the Act provides lump-sum 
payments of $150,000 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. Part B also provides lump-sum payments 
of $50,000 and medical benefits to individuals found eligible by the 
Department of Justice (DOJ) for $100,000 under section 5 of the 
Radiation Exposure Compensation Act (RECA) and, where applicable, to 
their survivors. Part E of the Act provides variable lump-sum payments 
(based on a worker's permanent impairment and/or calendar years of 
qualifying wage-loss) and medical benefits for covered DOE contractor 
employees and, where applicable, provides variable lump-sum payments to 
survivors of such employees (based on a worker's death due to a covered 
illness and any calendar years of qualifying wage-loss). Part E also 
provides these same payments and benefits to uranium miners, millers 
and ore transporters covered by section 5 of RECA and, where 
applicable, to survivors of such employees.
    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.

DATES: Effective Date: This rule will be effective on February 27, 
2007, 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 27, 
2007.

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: 202-693-0031 (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 June 8, 2005 (70 FR 33590). They took effect immediately 
and included a 60-day period for comment. During the comment period, 
the Department received 533 timely comments: two joint comments from 39 
congressional representatives; two from labor organizations; four from 
attorneys; four from advocacy groups; one from a lay representative; 
one from DOE; one from a DOE contractor; and 518 from individuals. The 
Department also received untimely comments from one physician, one 
attorney, one advocacy group, the Coconino County (Arizona) Board of 
Supervisors, one labor organization, the Navajo Nation and 23 
individuals; all of the points they raised were also raised by the 
timely comments. Almost all of the timely comments (521) addressed the 
issue of eligibility for survivor benefits under Part E of EEOICPA; 494 
of the comments addressed this issue alone. They also addressed a 
number of other issues, including the administrative claims process 
used to adjudicate claims under EEOICPA, entitlement qualifications, 
and the extent of coverage provided under Part E. 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 language to Sec.  30.112(b) to recognize that pursuant to Sec.  
30.106, entities other than DOE may be verifying alleged periods of 
employment that claimants have reported to OWCP. A second change is the 
addition of language to Sec.  30.301(c) clarifying that OWCP will also 
not issue a subpoena for the testimony of employees of the National 
Institute for Occupational Safety and Health (NIOSH) or contractors of 
either OWCP or NIOSH acting in their official capacities with respect 
to the EEOICPA claims adjudication process. In addition, the existing 
language of Sec.  30.316(c) has been modified so that a recommended 
decision on a claim that is pending for more than one year after the 
date it was reopened for issuance of a new final decision will be 
considered a final decision on that claim as of that date, and Sec.  
30.400(a) has been modified to reflect the current practice of OWCP to 
pay for medically necessary treatment of a primary cancer in claims 
where the accepted occupational illness or covered illness is a 
secondary cancer.
    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 30.5

    One individual suggested that the definition for the statutory term 
``Department of Energy facility'' be modified to more clearly identify 
the ``list of facilities established by the Department of Energy'' 
referred to in the interim final regulation. To eliminate any confusion 
with respect to this list, and as suggested by the comment, Sec.  
30.5(x) has been amended in this final rule to specify which list of 
facilities the Department has adopted. Another individual believed that 
the five-year latency period requirement for specified cancers listed 
in Sec.  30.5(ff)(5) was ``in error'' and suggested that it be deleted. 
However, the latency period requirement is contained within section 
7384l(17)(A) of the Act and cannot be modified in these regulations. 
Therefore, the suggested change was not made. A third individual 
suggested that Sec.  30.5(gg) be modified to more clearly describe the 
requirements for eligibility of survivors under Part E. Section 
30.5(gg) is only intended to inform readers that survivors must be 
alive to receive a payment. Because complete descriptions of the 
requirements for

[[Page 78521]]

eligibility of survivors under Part B and Part E of EEOICPA already 
appear at Sec.  30.500, the suggested change is unnecessary and was not 
made.

Sections 30.100, 30.101, 30.102 and 30.103

    One attorney pointed out that while employees and survivors can use 
Forms EE-1 and EE-2 to file their initial claims with OWCP, there was 
no form provided for filing a claim for an alleged consequential 
illness or injury. The absence of a specific form for claiming an 
alleged consequential illness or injury is intentional since in those 
situations, OWCP would already have all of the necessary factual 
information that could be requested by a form. Claimants need only 
submit written ``words of claim'' to OWCP, together with the type of 
supporting medical evidence described in Sec. Sec.  30.207(d), 30.215, 
30.222(b), 30.226 or 30.232(c), to file a claim for a consequential 
illness or injury. Therefore, no new form has been designed and the 
suggested changes to Sec. Sec.  30.100 and 30.101 were not made.
    Two individuals disputed the provision in Sec.  30.101(c) that a 
survivor must be alive to receive a payment under the Act and noted 
that if all of the eligible survivors die before payment can be made, 
no payment can be made to any other individual as the heir of a 
deceased eligible survivor. However, this result is required under both 
Parts B and E of EEOICPA pursuant to sections 7384s(e)(1) and 7385s-
3(c), which require that survivors under both Part B and Part E must be 
alive at the time of payment, and cannot be altered by regulation. 
Therefore, the requested change to Sec.  30.101(c) was not made.
    Three advocacy groups suggested that the provision in Sec.  30.102 
that OWCP will only adjudicate a claim for an increased impairment 
rating if it is filed at least two years from the date of the last 
award of impairment benefits is unreasonable and proposed that the 
waiting period to be reduced to either one year or six months. The 
claim development process that OWCP uses when it determines a covered 
Part E employee's minimum impairment rating is necessarily complex and 
usually takes a considerable amount of time to complete. For example, 
the medical evidence submitted in support of an alleged rating may not 
contain all of the information that OWCP will need to determine an 
impairment rating. OWCP would then have to seek that information from 
another source, or obtain an impairment evaluation by another physician 
before it would be able to determine the extent of the alleged 
permanent impairment based on the evidence in the case record. If 
claimants were permitted to apply for an increased impairment rating 
sooner than two years after their prior award for impairment benefits, 
the claims processing system would inevitably become less efficient and 
claimants who have not had their initial impairment claims adjudicated 
and who have not received benefits for their compensable permanent 
impairments would necessarily have to wait even longer to receive a 
decision from OWCP. Therefore, in order to maintain an efficient system 
of adjudication for all claimants and to best use its limited 
resources, OWCP concludes that the two-year waiting period should 
remain in place and none of the suggested changes to this section have 
been adopted.
    One of these same advocacy groups also noted that while Sec.  
30.103 requires claimants to use approved forms when filing claims 
under Part E of EEOICPA, ``the present forms do not allow for claiming 
diseases other than cancer, berylliosis or silicosis.'' On June 20, 
2005, the Office of Management and Budget approved new versions of 
Forms EE-1 and EE-2 that allow claimants to file for all illnesses 
potentially compensable under Part E. As noted in Sec.  30.103(b), 
these forms are available on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm. Therefore, the suggested change 
to Sec.  30.103 is unnecessary and has not been made.

Section 30.106

    One individual questioned whether DOE was in possession of 
sufficient employment data to enable it to verify alleged periods of 
employment for ``most'' claims. OWCP does not dispute that there are a 
number of facilities for which DOE does not have access to any 
employment data. However, OWCP has developed a number of alternative 
methods to be used for verifying alleged employment at those 
facilities. In acknowledgement of this situation, Sec.  30.106 
describes the various alternative methods by which OWCP may seek to 
verify alleged periods of employment at those facilities for which DOE 
has no employment data, and no change to this section was made in the 
final rule.

Sections 30.111, 30.113 and 30.114

    One individual and two labor organizations questioned the 
description of the general burden of proof that all claimants must meet 
in order to establish their entitlement to any compensation under 
either Parts B or E of EEOICPA. Section 30.111(a) describes the general 
burden of proof that claimants must meet, ``[e]xcept where otherwise 
provided in the Act and these regulations,'' with respect to all of the 
required elements involved in a claim. As one of these labor 
organizations noted, there are differing burdens of proof between Parts 
B and E, as well as between different claimed illnesses within a single 
Part of the Act. This fact, however, does not mean that the description 
of the general burden of proof in Sec.  30.111(a) is incorrect. OWCP is 
committed to helping claimants meet their burden of proof and is aware 
that some claimants may have difficulty proving both the presence of 
and their exposure to a toxic substance at a particular facility under 
Part E. In an effort to remedy this situation, OWCP is currently 
developing exposure matrices that will compile information provided by 
a variety of sources, including DOE, former worker medical survey 
programs, and epidemiological studies. For all of the DOE facilities, 
extensive documentation exists covering thousands of toxic materials. 
The matrices now being developed will be posted on our Web site and 
will be available to claimants and their representatives. While it is 
not possible to define precisely in a regulation how these complex 
matrices will be used in each case, OWCP's procedural guidance 
documents will provide additional clarity in this regard, and those 
documents will also be available to the public on our Web site. 
Nevertheless, it would not be appropriate to relieve claimants of their 
ultimate obligation to prove their claims, which is a standard 
requirement of all state and federal workers' compensation programs. 
Since Part E was intended to substitute for the state workers' 
compensation benefits that claimants could have sought DOE's assistance 
in obtaining under former Part D of EEOICPA, OWCP's application of 
standard workers' compensation principles is appropriate and no changes 
were made to Sec.  30.111(a).
    Another individual suggested that OWCP amend Sec.  30.111(c) to 
state that an affidavit submitted by a claimant is not, in and of 
itself, sufficient to establish a period of alleged employment. Section 
30.111(c) currently states that such affidavits ``may be relied on in 
determining whether a claim meets the requirements of the Act. * * *'' 
However, since Sec.  30.112(b)(3) already makes clear that OWCP may 
reject a claim when the only evidence of covered employment is a 
``self-serving affidavit,'' the suggested change is unnecessary and was 
not adopted in the

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final rule. A third individual suggested that language be added to 
Sec.  30.111 stating that when OWCP requests a second opinion from a 
medical specialist, it will only provide such specialist with copies of 
the ``medical'' evidence in the case file to review instead of all 
``relevant'' evidence in the file. This suggestion ignores the fact 
that factual evidence from a case file may be highly relevant (e.g., 
evidence of exposure levels, environmental assessments, etc.) to the 
probative value of the specialist's medical opinion and as a result, 
the requested change was not made.
    A third individual requested that Sec.  30.113(a) be changed to 
indicate that OWCP will accept various types of ``electronic'' 
submissions in support of claims for compensation under EEOICPA, while 
an advocacy group suggested that Sec.  30.113(c) be changed due to its 
belief that all statements regarding the substance of lost or destroyed 
factual or medical evidence would be ``self-serving'' and therefore not 
acceptable. Both of these provisions have been in effect since the 
issuance of the first final rule on December 26, 2002, and have not 
proved problematic in practice. Therefore, the requested changes were 
not made in this final rule.
    A fourth individual disagreed with the general requirement in Sec.  
30.114 that claims for compensation under EEOICPA be supported with 
medical evidence that establishes the existence of the alleged 
occupational illness under Part B or covered illness under Part E. 
However, these medical requirements are derived from the statutory 
requirements in the Act itself and cannot be altered through the 
rulemaking process. Therefore, the requested change to Sec.  30.114 was 
not made.

Section 30.115

    Two individuals asserted that application of the dose 
reconstruction process discussed in Sec.  30.115 of the interim final 
regulations to Part E cancer claims would be neither just nor fair, and 
one advocacy group asked how OWCP planned to adjudicate the claims of 
employees with non-specified cancers (those not listed at Sec.  
30.5(ff)) at newly designated Special Exposure Cohort worksites. With 
respect to the first of these two concerns, the discussion of Sec.  
30.213 in the preamble to the interim final rule described the 
scientific and administrative reasons why OWCP decided to use the 
existing dose reconstruction process from Part B to adjudicate certain 
radiogenic cancer claims filed under Part E, and the two commenters 
have not presented any arguments challenging the underlying bases for 
that decision. As for the comment regarding OWCP's adjudication of non-
specified cancer claims following an administrative addition of a class 
of employees to the Special Exposure Cohort, this question involves the 
manner in which the Department of Health and Human Services (HHS) 
defines the new class of employees and the unique factual basis for its 
addition to the Special Exposure Cohort. However, since neither of 
these matters are within the jurisdiction of OWCP, they cannot be 
addressed in the context of this rulemaking (see Sec.  30.2(b)). For 
the above reasons, no changes were made to Sec.  30.115 in the final 
rule based on these three comments.

Section 30.213

    OWCP received 19 comments regarding the operation of Sec.  30.213 
with respect to the 50 percent compensable level of probability of 
causation (PoC) it will use to adjudicate claims for radiogenic cancer 
under Part E of EEOICPA (three comments were received from advocacy 
groups, 11 from individuals, two from congressional representatives, 
one from a lay representative, and two from a single labor 
organization). These comments requested that OWCP lower the 
compensability level below the 50 percent level that is used for Part B 
claims, but gave no scientific or other rationale for setting the 
compensability level at any particular point below 50 percent. Rather, 
the commenters base their arguments on the fact that the statutory 
causation standard for Part E uses language that differs from the 
language used for Part B. For the reasons set forth below, OWCP has 
determined that it is more consistent with congressional intent and 
current science to continue to use HHS's regulations in making the 
determination required by section 7385s-4(c)(1)(A) of the Act because 
those regulations provide the only reasonable factual basis upon which 
OWCP can determine if it is ``at least as likely as not'' that exposure 
to radiation at a DOE facility or RECA section 5 facility was a 
``significant factor in aggravating, contributing to, or causing'' 
radiogenic cancer for which compensation is claimed under Part E.
    It is clear from the scientific literature that it is not possible 
to definitively attribute any individual's cancer to any particular 
cause, and no commenter identified a method of attribution. As noted in 
Science Panel Report No. 6, Use of Probability of Causation by the 
Veterans Administration in the Adjudication of Claims of Injury Due to 
Ionizing Radiation, issued by the Committee on Interagency Radiation 
Research and Policy Coordination of the Office of Science and 
Technology Policy, Executive Office of the President (August 1988), 
``[a]nalysis of medical findings cannot separate the `radiogenic cases' 
from those unrelated to radiation exposure; no `biological markers' 
have yet been identified that can unequivocally point to radiogenic 
cancers as distinct from non-radiogenic cancers. An excess incidence of 
cancer is identifiable in a statistical sense only.''
    It is, thus, not surprising that Congress required the use of 
statistical probability in the determination whether to compensate an 
individual with a claimed cancer under Part B. Under Part B, an 
individual will be determined to have sustained ``cancer in the 
performance of duty for purposes of the compensation program if, and 
only if, the cancer [at issue] was at least as likely as not related to 
employment at the facility'' (emphasis added), determined pursuant to 
guidelines based upon radiation dose and ``the upper 99 percent 
confidence interval of the probability of causation in the 
radioepidemiological tables published under section 7(b) of the Orphan 
Drug Act (42 U.S.C. 241 note),'' as well as a number of other factors. 
The technical documentation prepared by HHS to explain the computer 
program used to make this calculation similarly notes that ``it is not 
possible to determine, for a given individual, whether his or her 
cancer resulted from workplace exposure to ionizing radiation.'' 
(NIOSH--Interactive RadioEpidemiological Program (IREP) Technical 
Documentation, June 18, 2002). Part B, thus, requires that a claimed 
cancer be determined to be ``related to'' employment at a covered 
facility if the radiation dose and other factors combined indicate that 
there is a statistical probability that the cancer would not have 
occurred in the absence of work-related exposure to radiation. In other 
words, the PoC determination made for purposes of Part B is actually a 
determination that there is a 50 percent or better chance that 
radiation was a factor, however slight, ``in aggravating, contributing 
to, or causing'' a claimed cancer because, in the absence of work-
related exposure to radiation, the cancer would not have occurred at 
all.
    Because it is impossible to determine the extent to which any 
individual factor contributed to the development of cancer, OWCP has 
concluded that the only way to comply with the statutory

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mandate in Part E is, in effect, to interpret ``a significant factor'' 
as including any factor. Accordingly, the determination made pursuant 
to HHS regulations issued under Part B whether there is a 50 percent 
probability that radiation was a factor in the development of cancer 
(i.e., that in the absence of work-related exposure to radiation, the 
cancer would not have occurred at all) will be deemed sufficient to 
establish that radiation was not only a factor, but was also a 
significant factor ``in aggravating, contributing to, or causing'' the 
cancer in question.
    The position taken by the commenters appears to be based on a 
misunderstanding of the test used by Congress in Part B of EEOICPA for 
determining coverage for cancer due to exposure to radiation. The 
standard used is whether a cancer suffered by a worker is ``related 
to'' his or her employment at a covered facility. The commenters 
suggest that Part B awards benefits only for cancers caused by exposure 
to radiation, while Part E was intended to award benefits where the 
cancer was either caused by or contributed to by exposure to radiation. 
This misunderstanding may well stem from use of the term ``probability 
of causation'' to describe the results of the statistical determination 
made by the radioepidemiological tables used in the process. By using 
the term ``related to'' in Part B, however, Congress encompassed all 
cancers for which there is a statistical probability that exposure to 
radiation was a factor in the development of the cancer. Despite the 
use of the word ``causation'' in the term ``probability of causation,'' 
the determination reached is not an individual determination of the 
mechanism of cause and effect leading to a particular cancer, which as 
explained above is not scientifically possible, but a statistical 
prediction of the probability that the cancer would not have occurred 
in the absence of exposure to radiation. Thus, the HHS technical 
documentation describes PoC as ``the likelihood that an existing cancer 
resulted from that [workplace radiation] exposure.'' (NIOSH-IREP 
Technical Documentation, June 18, 2002). Scientific analysis does not 
distinguish between cancers that are caused or contributed to by 
radiation. Since the actual mechanisms of cause (or contribution) for a 
given cancer are not known, only probabilistic assertions can be made, 
and they address only whether the cancer is more or less likely not to 
have occurred absent the exposure. The IREP approach identifies all 
conceivable cancers that might have resulted from the radiation 
exposure. This probabilistic approach is the only generally accepted 
scientific means of assigning responsibility for cancers in relation to 
radiation exposure. The Department of Veterans Affairs and the Defense 
Department also utilize essentially the same statistical probability 
test to adjudicate benefits for potentially radiogenic cancer cases 
incurred by veterans exposed to radiation.
    Further, it should be noted that the epidemiological method 
utilized in this determination is actually far more favorable towards 
claimants than merely requiring a determination that radiation exposure 
was ``at least as likely as not'' a significant factor. The method 
specified by Congress for Part B and adopted by OWCP for Part E 
requires that OWCP use the upper 99 percent confidence interval to 
determine whether cancers of employees are to be compensable. In 
essence, a confidence interval indicates the likelihood that a 
statistical sample will reflect actual results and is often 
demonstrated in terms of a margin of error (e.g., 5 
percentage points in a poll). The precise statistical definition of the 
99 percent confidence interval is that if a study or poll were 
conducted 100 times, the results would be within the sample's margin of 
error 99 times and one time the results would be either higher or 
lower. For purposes of the calculations performed under Parts B and/or 
E of EEOICPA, an upper 99 percent confidence interval establishes a 
significant margin of error in favor of claimants for whether the 
exposures that appeared at least as likely as not to cause cancer 
actually did. That is, use of this confidence interval means that there 
is only a one percent chance that the exposure level has been 
underestimated and a 99 percent chance that it has been overestimated. 
Because of this extremely claimant-favorable margin of error, we 
believe that it is reasonable to conclude that the use of this method 
for adjudicating radiogenic cancer claims under Part E will provide 
compensation in any case in which it is at least as likely as not that 
an employee would not have suffered cancer absent his or her 
employment-related exposure to radiation.
    This conclusion finds further support in the Report of the NCI-CDC 
Working Group to Revise the 1985 NIH Radioepidemiological Tables 
(September 2003), which found that the PoC model was a viable method to 
adjudicate claims for radiation-related instances of cancer that 
appropriately summarized ``the likelihood that prior radiation exposure 
might be causally related to cancer occurrence.'' The report described 
the Department of Veterans Affairs' use of PoC calculated at the 99 
percent credibility limit (the term used in that report for confidence 
interval) as ``highly unlikely to exclude persons with meritorious 
claims. However it is likely to award many persons whose true [PoC's] 
are very much less than 50 percent.'' For example, as noted in that 
report, because of the substantial margin for error established by use 
of the 99 percent confidence level, a cancer that is actually nine 
percent likely to have been caused by the alleged exposure, but for 
which data is limited, could yield a PoC of 82 percent under the HHS 
PoC guidelines.
    OWCP also believes that utilizing the 50 percent PoC process for 
Part E is more likely to result in a scientifically valid and 
consistent determination process than attempting to reach a 
determination based on medical opinions from physicians that inevitably 
contain a significant speculative component. Use of the PoC guidelines 
for claims under both Part B and Part E allows OWCP to adjudicate the 
entitlement of radiogenic cancers that are potentially compensable 
under both Part B and Part E in a uniform manner. Any process for 
determining coverage of claims for radiogenic cancers that would yield 
inconsistent results as to whether that cancer is compensable under 
Parts B and E is unlikely to be understood or accepted by claimants and 
other stakeholders.
    The commenters' argument that eligibility for a radiogenic cancer 
under Part E should be based on a lower than 50 percent PoC level 
apparently is based on their interpretation of the language of section 
7385s-4(c)(1)(A), which requires a determination that it is ``at least 
as likely as not that exposure to a toxic substance at a Department of 
Energy facility was a significant factor in aggravating, contributing 
to, or causing'' the claimed cancer. While Congress utilized different 
terminology to establish the test for compensation in Part E and Part 
B, the differences reflect the fact that Part B was intended to 
establish narrowly drawn tests for specific medical conditions, such as 
radiogenic cancer or chronic beryllium disease. Part E, on the other 
hand, sets forth a broad test that must be used to determine the 
compensability of a virtually unlimited array of illnesses potentially 
caused by exposure to the tens of thousands of toxic substances present 
at Department of Energy facilities. While there is no way to 
distinguish between causation and

[[Page 78524]]

contribution in regard to cancer related to exposure to radiation 
(because it is only possible to determine the statistical probability 
that, absent work-related exposure to radiation, the employee in 
question would not have incurred the cancer or cancers from which he or 
she suffered), Part E applies to other types of illnesses for which the 
concept of ``contribution'' may be highly relevant. Indeed, unlike the 
case of radiogenic cancer, it is possible to determine that toxic 
exposure contributed to a number of other illnesses or that other pre-
existing illnesses were aggravated by toxic exposure. Therefore, the 
difference in the statutory language between the standard in Part B and 
the standard in Part E does not indicate that Part E was intended to 
establish a more lenient test, but can be explained by the fact that it 
was designed to cover a wide variety of situations and circumstances, 
as opposed to the more narrowly drawn Part B radiogenic cancer 
standard, where no difference existed between causation and 
contribution.
    It should also be noted that the regulation specifies that the PoC 
model will be determinative under Part E only with respect to claims 
where the sole alleged condition is radiogenic cancer. When a claim for 
cancer under Part E cannot be accepted based on exposure to radiation 
alone because the PoC was determined to be less than 50 percent, the 
claimant is provided the opportunity to establish that the cancer was 
caused by a combination of exposure to radiation and exposure to one or 
more other toxic substances. OWCP will adjudicate those claims for 
cancer allegedly due to exposure to radiation combined with exposure to 
one or more other toxic substances using the eligibility criteria for 
other covered illnesses in Sec. Sec.  30.230 through 30.232. As a 
result, no changes were made to Sec.  30.213(c) in the final rule.

Sections 30.230, 30.231 and 30.232

    One labor organization suggested that the statutory terms 
``aggravated,'' ``contributed to'' and ``caused'' from one portion of 
the Part E causation standard appearing in section 7385s-4(c)(1)(A) of 
EEOICPA be defined in Sec.  30.230 of the final rule so it will be 
``possible to determine how DOL will adjudicate claims.'' However, 
these statutory terms have a long and settled history in workers' 
compensation law, and OWCP believes any attempt to further define those 
terms (which involve matters of administrative discretion and 
professional medical opinion) would only lead to increased confusion. 
As a result, Sec.  30.230 has not been amended in the final rule.
    Two comments from congressional representatives, three from 
advocacy groups and one from an individual asserted that it would be 
extremely difficult for claimants to satisfy their burden of proof 
under Sec.  30.231 to establish both the presence of a toxic substance 
and the employee's exposure to the substance without the development of 
site exposure assessments of toxic substances. OWCP shares this concern 
and is committed to studying all of the available information 
pertaining to these sites and making publicly available a listing of 
the toxic substances present at such sites. The information compiled 
from these studies will be accepted as probative evidence in 
determining the eligibility of claimants, barring extraordinary and 
unusual circumstances, and Sec.  30.231(b) has been modified to clarify 
OWCP's policies regarding this matter. However, the remainder of the 
suggested changes to the burden of proof described in Sec.  30.231 have 
not been adopted.
    One advocacy group objected to the requirement in Sec.  
30.232(a)(2) that each claimant under Part E provide a signed medical 
release authorizing the release of any diagnosis, medical opinion or 
medical records documenting the employee's alleged covered illness and 
that it resulted from exposure to a toxic substance. The advocacy group 
is concerned that in some cases such documents may no longer exist. 
OWCP is aware of this problem and has established procedures in Sec.  
30.113 by which a claimant can nevertheless meet this requirement 
through the submission of affidavits attesting to medical evidence that 
was contained in documents that no longer exist. However, a signed 
medical release is needed in all Part E claims so OWCP may thoroughly 
investigate the claim. Thus, the suggestion to drop this requirement 
was not adopted. The same advocacy group and another advocacy group 
suggested that the requirement contained in Sec.  30.232(c) that a 
claimant establish that a covered Part E employee suffered an injury, 
illness, impairment or disease as a consequence of a covered illness be 
deleted. These commenters feel that OWCP claims examiners should have 
enough documentation and medical evidence in the case file to made 
these determinations without requiring the submission of additional 
medical evidence. However, the nature of these consequential conditions 
is that they only arise subsequent to the development of an underlying 
condition, thus necessitating the submission of more recent medical 
evidence establishing their causal relationship to an existing covered 
illness. Accordingly, the suggestion was not adopted in the final rule.

Section 30.300

    Two comments from individuals, two from congressional 
representatives and one from an advocacy group suggested that OWCP use 
Physicians Panels to make determinations when there is a dispute with 
regard to issues of causation or the degree of impairment. After 
considering the use of Physicians Panels in the adjudication of Part E 
claims, OWCP decided in the interim final rule to base the formal 
adjudicatory and review structure for those claims on the same 
successful and streamlined structure that has been used for Part B 
claims since 2001. The use of Physicians Panels as deciding bodies for 
claims submitted to DOE under former Part D of EEOICPA proved to be 
both inefficient and extremely time-consuming. Nevertheless, OWCP will 
use a full range of qualified medical specialists to assist in the 
development of claims, especially the kind of complex cases these 
comments discuss. When a claim involves extreme complexity and multiple 
medical disciplines, OWCP may refer the claimant to a panel of 
physicians for a medical evaluation. Once a report is received, OWCP's 
adjudicatory staff will then consider it when they make a decision on 
the claim. OWCP continues to believe that this type of claims 
adjudication process provides for a more efficient and expeditious 
handling of medical disputes and the application of more uniform 
criteria to resolve such disputes. Thus, the suggested changes have not 
been adopted.
    The same advocacy group suggested that OWCP state in the 
regulations the processes it will follow with respect to classified 
information that may be pertinent to a claim under EEOICPA, and urged 
that in situations where the claimant or his or her representative 
lacked the requisite security clearances, OWCP should ask the Ombudsman 
to provide a properly cleared lawyer or qualified technical expert to 
evaluate the factual evidence and advocate on behalf of the claimant 
during the claims adjudication process. OWCP is also concerned about 
the impact of using classified information to adjudicate claims under 
the Act. However, since it is not the classifying agency with respect 
to such information, it cannot allow greater access to the information 
than is currently permitted. As for the suggestion that OWCP should ask 
the Ombudsman to nominate or otherwise provide a person with the 
requisite security clearance to advocate for

[[Page 78525]]

claimants, the Ombudsman is not authorized to perform that function by 
either the statute or Secretary's Order 1-2005 (70 FR 33328), which 
established the Office of the Ombudsman within the Department. The 
Ombudsman does not have any role in the claims adjudication process 
administered by OWCP. Thus, the suggestions were not adopted in the 
final rule.
    Another advocacy group suggested that the claims adjudication 
processes described in Sec.  30.300 be altered to include a review by 
an ``independent entity'' like an administrative law judge. This same 
suggestion was made by several commenters with respect to this section 
as it appeared in the first interim final rule governing its 
administration of the Act that OWCP published on May 25, 2001 (66 FR 
28948). As it noted when it subsequently published the first final rule 
governing its administration of EEOICPA on December 26, 2002 (67 FR 
78874), OWCP believed that utilizing administrative law judges or 
another type of independent review body would unnecessarily complicate 
and delay the claims adjudication process to the detriment of 
claimants. The commenter did not present any new reason not previously 
considered by OWCP when it originally decided to retain the 
adjudicatory structure described in Sec.  30.300, or any evidence of 
problems with it since its inception in 2001. Therefore, the suggested 
change to this section of the regulations was not adopted.

Sections 30.301 and 30.302

    One advocacy group suggested that OWCP extend the ability to 
request issuance of a subpoena to include Part E claims as well as Part 
B claims, and that this ability should be extended to all stages of the 
claims adjudication process. Section 30.301 indicates that a claimant 
may request that a Final Adjudication Branch (FAB) reviewer issue a 
subpoena in connection with a claim under Part B of EEOICPA. The 
statutory authority underlying this section is derived from section 
7384w, which only applies to claims filed under Part B; Part E does not 
contain a similar provision. Therefore, OWCP does not have authority to 
extend the ability to request a subpoena to claimants under Part E. 
Further, OWCP has found it to be more efficient to limit the use of 
subpoenas by claimants to the portion of the claims adjudication 
process that includes the right to request an oral hearing, i.e., the 
portion before the FAB. OWCP claims examiners regularly assist 
claimants in obtaining relevant documents and information in the early 
development of claims under EEOICPA, and adding subpoena requests to 
this assistance would not appear to be either efficient or productive. 
Therefore, the suggested changes to Sec.  30.301 have not been adopted.
    One attorney suggested that Sec.  30.302 be modified so that 
claimants will be relieved of their obligation to pay the costs 
associated with subpoenas they have requested when the subpoenaed 
witness submits evidence into the case record that is relevant to the 
claimant's case and where the witness failed before the hearing to 
provide written evidence after being requested to provide such evidence 
by the claimant. OWCP believes that the suggested modification 
erroneously presumes that there will likely be situations where a 
witness will refuse to provide requested evidence without issuance of a 
subpoena by a FAB reviewer. This has not been the experience of OWCP in 
other benefit programs it administers, and OWCP does not contemplate 
that it will occur in its future administration of Part B. Up to the 
present time, OWCP has not encountered significant difficulty obtaining 
the factual or medical evidence necessary for it to adjudicate these 
claims, and there is no reason to think that these sorts of 
difficulties will occur in the future. Therefore, the suggestion to 
modify Sec.  30.302 was not adopted in the final rule.

Section 30.303

    DOE commented that the 60-day period within which it was required 
to respond to a request from OWCP for information or documents relevant 
to a claim under Part E of the Act in Sec.  30.303 was unreasonable, 
and noted that it would not be able to respond to such a request in a 
timely manner if the evidence needed to be reviewed for 
declassification purposes. As an alternative, DOE proposed that the 
standard for compliance with such a request be ``as soon as possible.'' 
While it does not dispute the validity of this concern, OWCP believes 
that the suggested proposal would effectively remove the time period 
for response from Sec.  30.303. However, in order to accommodate DOE's 
belief that it requires additional time to comply with these necessary 
requests, OWCP has amended Sec.  30.303(a) to provide DOE with 90 days 
within which to respond.

Sections 30.307 and 30.316

    One attorney suggested that Sec. Sec.  30.307(a) and 30.316(e) be 
amended to provide that a copy of the recommended decision and the 
final decision be sent to both the claimant and the claimant's 
representative. These sections currently provide that the recommended 
decision and final decision be sent to the claimant, unless he or she 
has a representative. In such a case, the recommended decision and 
final decision are to be sent only to the representative. OWCP believes 
that these suggestions have merit, and also notes that this has been 
the administrative practice of the program for some time. Thus, 
Sec. Sec.  30.307(a) and 30.316(e) have been amended in the final rule 
to provide that OWCP will send a copy of the recommended decision and 
the final decision on a claim to both the claimant and the claimant's 
representative, if any.

Section 30.315

    One attorney suggested that Sec.  30.315 be amended to permit, at 
the discretion of the FAB reviewer, a postponement of a hearing if the 
claimant's representative provides reasonable notice that the 
representative has a medical reason that prevents his or her attendance 
at the claimant's hearing. The interim final rule permits such a 
postponement where the claimant is prevented from attending the hearing 
for medical reasons, and it is the current practice of OWCP to permit 
such postponements for representatives whose attendance is prevented 
for the same reasons. Thus, Sec.  30.315(b) has been amended as 
suggested by the commenter.

Section 30.320

    One attorney suggested that Sec.  30.320(b) be amended to require 
the reopening of a final adverse decision on a claim if the claimant 
submits new evidence of a medical condition or discovers additional 
medical reports. The section currently requires the Director for Energy 
Employees Occupational Illness Compensation to a reopen a final 
decision on a claim if he concludes that the claimant has submitted new 
and material evidence with regard to either covered employment or 
exposure to a toxic substance, or identifies either a material change 
in the PoC guidelines, a material change in the dose reconstruction 
methods or a material addition of a class of employees to the Special 
Exposure Cohort. The experience of OWCP with respect to the processing 
and adjudicating of claims based on occupational or covered illnesses 
is that new medical evidence of a condition is easily obtained and, 
upon consideration, rarely sufficient to warrant the reversal of an 
earlier determination regarding a claimed condition. To permit an 
automatic reopening of a final decision based on such evidence would 
inevitably lead to

[[Page 78526]]

numerous frivolous reopenings and the attendant administrative 
inefficiencies would deprive claimants with meritorious claims of the 
opportunity to have those claims adjudicated in a timely manner. It 
should be noted, however, that claims may be reopened on the basis of 
new medical evidence by the Director under Sec.  30.320(a), which 
permits the Director, at his discretion, to reopen a final decision at 
any time. For these reasons, the suggestion regarding Sec.  30.320(b) 
has not been adopted.

Sections 30.400, 30.403, 30.404 and 30.405

    OWCP received three comments from advocacy groups, one from an 
attorney and two from congressional representatives objecting to the 
wording in Sec. Sec.  30.400, 30.403, 30.404 and 30.405 that suggested 
that there was no way for a claimant to administratively challenge a 
denial of a particular medical benefit. The wording in question was 
intended to describe the process that OWCP's medical billing contractor 
uses to inform claimants of decisions on medical bills that are 
submitted for payment. However, this wording incorrectly suggested that 
there was no administrative method by which a claimant could challenge 
an adverse medical billing determination by OWCP's contractor. To 
rectify this situation, and as suggested by the commenters, Sec. Sec.  
30.400, 30.403, 30.404 and 30.405 have been changed to indicate that a 
claimant may administratively challenge an adverse medical billing 
determination by utilizing the internal adjudicatory processes 
described in subpart D of the regulations.

Sections 30.410 and 30.411

    One advocacy group asked that OWCP clarify the provisions in 
Sec. Sec.  30.410(b) and 30.411(c) regarding disruptions of directed 
medical examinations. The provisions in question are intended to remind 
employees and their representatives that these medical examinations are 
under the control of medical professionals and are not, therefore, a 
proper forum for disputing aspects of individual claim adjudications. 
These physicians have been asked to conduct an examination at the 
request of OWCP in order to further clarify aspects of an employee's 
alleged medical condition, not to treat the employee, and therefore 
they do not have the type of ethical obligations regarding the employee 
that would otherwise naturally arise with a normal ``doctor-patient'' 
relationship. Since any attempt to interfere with a directed 
examination would disrupt the purpose of the examination, Sec.  
30.410(b) and Sec.  30.411(c) set out the consequences of taking such 
actions, and have not been altered in the final rule.
    This same advocacy group disagreed with Sec.  30.411(b), which 
states that when OWCP finds that a conflict in the medical evidence 
exists, OWCP will select a third physician to conduct a referee 
examination that resolves such conflict. This process has been in place 
since the inception of OWCP's administration of Part B, and was not 
altered in any way with the promulgation of the interim final rule. 
Further, this same process has been used successfully in other benefit 
programs administered by OWCP. Accordingly, Sec.  30.411(b) was not 
modified in the final rule.
    The same advocacy group and another advocacy group criticized the 
absence of any ``conflict of interest'' provisions with respect to 
physicians in the interim final rule. These comments asserted that it 
was important that OWCP indicate that physicians involved in the claims 
adjudication process who submitted medical evidence upon which OWCP 
claims examiners would make determinations on claims would be subject 
to some sort of constraints regarding such matters as prior involvement 
with a claimant, former work for a claimant's employer, etc. OWCP 
agrees with the general thrust of these comments, and has added 
provisions to Sec. Sec.  30.410 and 30.411 that indicate that 
physicians who perform directed medical examinations at the request of 
OWCP in connection with the claims adjudication process will be subject 
to ``conflict of interest'' standards devised by OWCP to ensure their 
compliance with ethical standards of professional conduct.

Sections 30.500 and 30.501

    A total of 521 comments objecting to the definitions of ``covered'' 
child and ``surviving spouse'' for the purposes of Part E in Sec.  
30.500(a) were received from 502 individuals and one lay representative 
(several individual commenters submitted multiple comments on this 
issue). While the definition of a ``surviving spouse'' is the same one 
that applies to Part B claims, a ``covered'' child under Part E must 
meet the same definition of a ``child'' used in Part B and, as of the 
date of the covered Part E employee's death, be either under the age of 
18, under the age of 23 and a full-time student who was continuously 
enrolled in one or more educational institutions since attaining the 
age of 18 years, or any age and incapable of self-support. These 
definitions merely follow, as they must, the definitions for these two 
terms that appear in section 7385s-3(d). Since these terms cannot be 
altered through the rulemaking process, the suggestions were not 
adopted and no changes were made to Sec.  30.500(a).
    The same lay representative and two of the same individuals also 
objected to the order of precedence for survivors under Part E that is 
set out in Sec.  30.501(b) and argued that a surviving spouse should 
not be required to share an award with children of a deceased Part E 
employee under any circumstances. This section states that if there is 
a surviving spouse and at least one ``covered'' child of a deceased 
covered Part E employee who is living at the time of payment and who is 
not a recognized natural child or adopted child of such surviving 
spouse, half of the payment is made to the surviving spouse and the 
other half is shared equally among all ``covered'' children of the 
employee who are living at the time of payment. As was the case with 
the survivor definitions discussed in the preceding paragraph, the 
regulatory order of precedence for survivors under Part E of the Act 
merely tracks the statutory order of precedence contained in section 
7385s-3(c)(3) of EEOICPA. Since the order of precedence for survivors 
under Part E cannot be modified by regulation, the suggestion was not 
adopted.

Section 30.505

    Two advocacy groups suggested that the unified benefit payment 
processes for both Parts B and E described in Sec.  30.505(a) be 
amended to require OWCP to issue a ``partial'' award of $12,500 to 
covered Part E employees at the time it determines that they have 
contracted a covered illness, and to determine the balance of any 
compensation due them within another six months. Unlike Part B of 
EEOICPA, which compensates individuals upon a finding that a covered 
Part B employee contracted an occupational illness, Part E monetary 
compensation can only be awarded if OWCP further determines that a 
covered Part E employee's wage-loss, impairment or death was due to his 
or her covered illness. Thus, this suggestion would result in the 
issuance of a monetary award to a claimant before OWCP has determined 
that the statutory entitlement criteria established by Part E have been 
met, and that a payment is due after any required offsets have been 
calculated. Shortening the monetary benefit payment processes for Part 
E as suggested by these two commenters would violate the explicit terms 
of EEOICPA, and therefore the

[[Page 78527]]

suggestions to change Sec.  30.505(a) have not been adopted.
    One labor organization suggested that Sec.  30.505(d) be amended to 
permit a claimant to receive up to the $250,000 maximum aggregate 
compensation payable under Part E for both wage-loss and impairment, 
for each of his or her covered illnesses. As OWCP noted in the preamble 
discussion of this provision of the interim final rule, 42 U.S.C. 
7385s-12 ``limits the aggregate compensation (other than medical 
benefits) that OWCP may pay under Part E to all claimants for each 
individual whose illness or death serves as a basis for compensation or 
benefits under Part E to a total of $250,000. This is the only reading 
of the statutory language that is consistent with the statutory 
requirement that the computation of both impairment benefits and wage-
loss benefits under [section] 7385s-2 be based upon impairment or wage-
loss that is 'the result of any covered illness.' This reading is also 
consistent with congressional intent, as reflected in the Conference 
Report for Public Law 108-375, which states that the `maximum aggregate 
benefit available under [Part] E of EEOICPA is $250,000.' See H.R. 
Conf. Rep. No. 108-767, at 894 (2004).'' Thus, the suggested changes 
have not been adopted.

Section 30.509

    Two advocacy groups asked why Sec.  30.509(c) indicates that OWCP 
will only make an impairment determination for a deceased Part E 
employee if an eligible survivor makes an election to receive the 
compensation of the employee as permitted by section 7385s-1(2)(B) of 
EEOICPA, when the Conference Report states that survivors under Part E 
are to receive a minimum lump-sum payment of $125,000. These comments 
are based on a misunderstanding of the operation of Sec.  30.509, which 
describes the very limited universe of survivors who are eligible to 
make the election described in section 7385s-1(2)(B), and the fact that 
the only survivors entitled to utilize this election provision would 
not be entitled to survivor benefits because the election is only 
available to survivors of a covered Part E employee who died ``from a 
cause other than the covered illness of the employee.'' Survivors who 
make this election will therefore not be eligible to receive any other 
compensation (such as the $125,000 lump-sum payment) under the terms of 
section 7385s-3. Accordingly, the provision discussed in Sec.  
30.509(c) is correct, and no changes were made to this section in the 
final rule.

Sections 30.513 Through 30.517

    One lay representative suggested that in Sec.  30.517, OWCP should 
more specifically describe the circumstances under which it would 
decide to waive its statutory right to recover an overpayment pursuant 
to section 7385j-2 of EEOICPA. While Sec.  30.513 of the interim final 
regulations notes the general authority of OWCP to waive recovery of an 
overpayment of EEOICPA benefits, Sec. Sec.  30.514 through 30.517 
elaborate on that authority with a substantial amount of detail. In 
light of the variety of factual circumstances and fairness 
considerations that may apply in any specific case, it is not possible 
to identify particular circumstances rather than general principles 
concerning how this authority is to be exercised. Therefore, since 
Sec. Sec.  30.513 through 30.517 in the interim final regulations 
adequately identify the standards that OWCP will use to make these 
determinations without depriving OWCP of sufficient flexibility to 
administer this aspect of the program, the suggested changes have not 
been adopted.

Section 30.600

    One individual suggested that Sec.  30.600(b) make it clearer that 
a claimant can grant a person a ``power of attorney'' to act on his or 
her behalf, and that such person can then designate a representative to 
pursue the claim under EEOICPA. OWCP believes there is merit in this 
suggestion. Thus, additional language was added to Sec.  30.600(b) to 
clarify that a person who has been granted a power of attorney by a 
claimant under EEOICPA may designate a representative to pursue that 
claim before OWCP. Also, one attorney suggested that OWCP change Sec.  
30.600(c)(2) to allow an attorney or representative to complete, but 
not sign, a Form EN-20. OWCP believes that this suggestion has merit, 
and Sec.  30.600(c)(2) has been amended as requested.

Section 30.603

    One attorney suggested that the 10 percent limit for attorney fees 
for filing objections to a recommended decision should apply to the 
amount of the lump-sum awarded in the final decision. The interim final 
rule currently applies this limit to the amount by which the lump-sum 
award is increased as a result of the objections, and is consistent 
with the mandate in section 7385s-9 to limit such fees in Part E cases 
in the same manner as Part B cases. Since Part B claimants either 
receive a full lump-sum award or no award at all, successful objections 
to a recommended decision provide a claimant with an ``increased'' 
lump-sum award equal to the entire amount payable under Part B. Section 
30.603(b)(2) in the interim final rule merely applies this same 
principle to Part E cases as required by the explicit terms of the Act. 
Since lump-sum awards to covered Part E employees may vary according to 
their level of impairment and the extent of their wage-loss, there may 
be instances where an objection to a recommended decision proposing to 
award benefits under Part E may result in a final decision awarding 
greater benefits. In such a case, the gain to the covered Part E 
employee from the filing of the objection will not be the entire lump-
sum award; the gain will the difference between the lump-sum payment 
and the amount proposed in the recommended decision. To be consistent 
with Part B, as required by the statute, the attorney fees under Part E 
have to be limited to the difference in lump-sum amounts. Thus, the 
suggested change has not been adopted.
    This attorney and two other attorneys also objected to the 
provision in Sec.  30.603(b)(1) that does not permit a representative 
to charge a two percent fee unless he or she was retained prior to the 
initial filing of the claim. This provision, however, is based on the 
limitation contained in 42 U.S.C. 7385g(b)(1), which states that a 
representative may only charge a two percent fee ``for the filing of an 
initial claim for payment of lump-sum compensation. * * *'' OWCP 
believes that it would violate the statute to permit a representative 
to charge a fee of two percent of the lump-sum award if the 
representative was retained after the claim was filed. One of these two 
other attorneys also suggested that the term ``initial claim'' be 
defined to include the filing of amended claim forms, the submission of 
additional documents or data, or the reopening of the claim following 
the issuance of a final decision by the FAB; in the alternative, he 
also suggested that the limitations described in the interim final rule 
not apply to claims that were filed prior to the effective date of that 
rule, i.e., June 8, 2005. OWCP believes that an expansive definition of 
the term ``initial claim'' would be inconsistent with the plain meaning 
of the statute, which has not changed in this regard since section 
7385g was amended on December 28, 2001. For this same reason, OWCP also 
believes that there would be no justification for applying the fee 
limitations described in Sec.  30.603 only to claims filed on or after 
June 8,

[[Page 78528]]

2005. Thus, none of these suggested changes were adopted in the final 
rule.

Section 30.609

    Two advocacy groups disagreed with the requirement in Sec.  30.609 
that claimants must report (for offset purposes) any payments that they 
receive due to medical malpractice resulting from treatment of their 
occupational illness or covered illness. Such medical malpractice 
payments have as their genesis exposures for which compensation is 
payable under Part B or Part E of EEOICPA. Under section 7385 of 
EEOICPA, benefits payable under Part B or Part E must be offset to 
reflect these types of payments. Thus, OWCP must be informed of these 
types of payments so it can perform the statutorily mandated offset of 
EEOICPA benefits, and the suggestion to eliminate this section has not 
been adopted in the final rule.

Section 30.626

    One lay representative and five individuals objected to Sec.  
30.626, which describes the required coordination of payments under 
Part E of EEOICPA with benefits from state workers' compensation 
programs for the same covered illness or illnesses. However, OWCP is 
required to coordinate Part E benefits in this manner by section 7385s-
11 of the Act. Thus, the suggestion to eliminate this section has not 
been adopted.

Sections 30.801, 30.805, 30.806 and 30.815

    One individual suggested that Sec.  30.801 indicate that 
compensation will be provided to employees who have suffered occasional 
days of lost pay due to their covered illnesses. However, Part E is not 
a program that provides compensation for any wage-loss, regardless of 
amount, that a covered Part E employee may experience due to his or her 
covered illness. Instead, Part E only provides compensation under a 
specific formula in section 7385s-2(a)(2)(A) based on a qualifying 
amount of wage-loss sustained in a given calendar year, and this 
formula cannot be altered in this final rule. Thus, the suggestion has 
not been adopted.
    One labor organization asserted that it is more difficult for 
employees who worked intermittently at DOE facilities to establish 
their average annual wage and their alleged calendar years of wage-loss 
through reliance on wage data received from the Social Security 
Administration, and that this will result in employees having to use 
the methods of Sec.  30.806 to convince OWCP to determine a different 
average annual wage and/or the extent of compensable calendar years of 
wage-loss than it determined using Sec.  30.805. However, the labor 
organization did not put forward any discernable proposal to address 
the purported problem it raised in its comment. While it is possible 
that some employees may incur difficulties in securing the type of 
records described as acceptable to OWCP in Sec.  30.806, these 
difficulties alone should not relieve them of their burden to produce 
records that show a level of wage-loss sufficient to make them eligible 
for an award. OWCP claims examiners are instructed to accept tax 
returns, pay stubs, union records and pension records as evidence of 
earnings. In addition, claims examiners can request earning records 
from employers. Therefore, no change has been made to Sec.  30.806 in 
the final rule. However, because of these concerns, Sec.  30.805 has 
been amended in the final rule to more precisely define the term 
``wages.'' Another labor organization asserted that some occupations 
are more likely to be affected by the business cycle than others, and 
asked that the wages of employees in these occupations be determined by 
looking to the average wages of their ``peer group'' rather than to 
their own individual wages. OWCP does not believe that adjustments for 
fluctuations in demand for labor in certain occupations can be made 
fairly or efficiently, nor does it believe that it has the authority to 
make this type of change to the statutory formulae for determining 
these matters by regulation. As a result, this suggested change has 
also not been adopted.
    One individual suggested a stylistic change for the wording of 
Sec.  30.815(b), which he felt was too confusing. Section 30.815(b) is 
merely intended to inform readers that in most situations, OWCP will 
determine the number of compensable years of wage-loss in accordance 
with the procedures described in Sec. Sec.  30.800 through 30.811. The 
suggested change is not substantive in nature and would be, in OWCP's 
opinion, more confusing than the language that currently appears in 
Sec.  30.815(b). Therefore, the suggested change to this section has 
not been adopted in the final rule.

Section 30.901

    One labor organization questioned OWCP's ability to make the type 
of apportionment determinations described in Sec.  30.901(a) of the 
interim final rule and asserted that there was no reasoned basis for 
allocating the cause of a permanent impairment of an organ or body 
function among both compensable and non-compensable exposures. This 
provision was based on the somewhat ambiguous language of section 
7385s-2(a)(1)(A) of the Act, which can be read in such a way as to 
require the apportionment described in Sec.  30.901(a) of the interim 
final rule. However, after carefully considering both the dearth of 
support for such apportionments in the medical literature and the 
practical difficulties that claims examiners would be faced with if 
they were required to make these particular types of determinations, 
OWCP agrees with the commenter and has decided to interpret the 
statutory provision in question as not requiring such an apportionment. 
Thus, OWCP has modified Sec.  30.901(a) in the final rule to remove 
this requirement. Conforming changes have also been made to Sec. Sec.  
30.901(d), 30.902, and 30.908(b) and (c).
    One lay representative, four individuals and the same labor 
organization also criticized the description of the criteria for 
physicians to perform impairment evaluations set out in Sec.  
30.901(b), and suggested that OWCP modify that description to make the 
criteria less restrictive so as to increase the potential pool of 
physicians who can perform impairment evaluations acceptable to OWCP. 
After considering several different potential criteria since the 
issuance of the interim final rule, OWCP believes that it has developed 
criteria that will satisfy the commenters' concern that there will be 
few physicians who meet the criteria in a given locality, or that 
claimants will not be able to use their local physicians to perform the 
testing and measurements upon which an impairment evaluation under Part 
E can be performed by a physician who meets the criteria. As changed, 
these criteria will now provide that a physician has to establish (to 
OWCP's satisfaction) that he or she possesses knowledge and experience 
in using the American Medical Association's Guides to the Evaluation of 
Permanent Impairment (AMA's Guides) and/or possesses the requisite 
professional background and work experience to conduct acceptable 
impairment evaluations. Further, while a claimant's local physician may 
not be able to satisfy all of the criteria described in Sec.  30.901(b) 
and perform the impairment evaluation itself, the claimant can still 
elect to have such a physician perform the underlying objective testing 
and other procedures that another physician who does satisfy the 
criteria could rely upon in arriving at an evaluation of his or her 
impairment. Since OWCP has changed the policy to which the commenters

[[Page 78529]]

objected, no changes were made to Sec.  30.901(b) in the final rule.

Sections 30.905 and 30.906

    One individual objected to the provision in Sec.  30.905(b)(1) that 
only impairment evaluations performed by physicians who meet the 
criteria identified by OWCP will be considered probative. The comment 
suggests that impairment evaluations performed by physicians of the 
Radiation Exposure Screening and Education Program (RESEP) that is 
administered by the Health Resources and Services Administration within 
HHS be considered probative under Part E of EEOICPA. OWCP has no 
objection to claimants submitting impairment evaluations performed by a 
RESEP physician, so long as that physician meets the qualifications set 
forth by OWCP. The same would be true for physicians who are affiliated 
with other government-sponsored health clinics. Not all physicians, 
however, have the necessary training to perform impairment evaluations 
(as noted above, claimants can utilize any physician to perform the 
testing and measurements upon which an impairment evaluation can be 
performed by a physician who meets OWCP's criteria). Thus, OWCP must 
put into place certain criteria to identify those physicians who are 
qualified to perform impairment evaluations upon which it can base its 
ratings. As a result, no changes to Sec.  30.905(b)(1) were made in the 
final rule. Two other individuals objected to the requirement found in 
Sec.  30.905(b)(2) that an impairment evaluation must have been 
performed within one year of its submission to OWCP for it to be 
considered probative in determining the permanent impairment of a 
covered Part E employee and suggested that this requirement be deleted. 
OWCP does not find any merit to this objection because the Act requires 
OWCP to determine the minimum impairment rating of the employee as of 
the time it is adjudicating the claim for the award. In light of this 
requirement, OWCP believes that it is reasonable to insist that the 
rating be based on an impairment evaluation that is no more than one 
year old. Two advocacy groups also suggested that this same requirement 
be deleted because covered Part E employees with previous temporary 
impairments from which they have recovered would not receive 
compensation. OWCP believes that the reasoning behind these latter 
comments ignores the mandate in the Act to compensate covered Part E 
employees for their permanent impairment rather than their temporary 
impairment. Thus, the suggestions to delete the requirement in Sec.  
30.905(b)(2) were not adopted.
    Two attorneys suggested that Sec.  30.906 be amended to provide 
that OWCP will pay for the cost of any additional impairment evaluation 
if such impairment evaluation increases the minimum impairment rating. 
In the interim final rule, this section states that OWCP will pay for 
one evaluation if it meets the criteria set forth in Sec.  30.905(b), 
and that it will also pay for any additional impairment evaluations 
that it directs the employee to undergo (and reimburse the employee for 
reasonable expenses, as defined in the rule, that are associated with 
such an evaluation). OWCP is not persuaded that there is a reasonable 
basis for paying for additional impairment evaluations beyond those 
already described in Sec.  30.906, and therefore the suggestion was not 
adopted in the final rule.

Sections 30.907 and 30.908

    Two advocacy groups asserted that Sec.  30.907(b) did not provide a 
process whereby a dispute regarding a covered Part E employee's 
impairment evaluation could be resolved. While Sec.  30.907(b) in the 
interim final rule noted that the procedures for ``directed medical 
examinations'' set out in Sec. Sec.  30.410 and 30.411 of the 
regulations applied to these types of disputes, OWCP acknowledges that 
it did not explicitly note that such procedures include the process by 
which OWCP resolves medical disputes in general. Therefore, in order to 
make this provision more clear, Sec.  30.907(b) has been modified 
slightly in the final rule to explicitly note that OWCP will resolve 
medical disputes regarding impairment through the ``referee 
examination'' process set out in Sec.  30.411.
    One labor organization objected to the provisions in Sec.  30.908 
requiring that medical evidence of impairment submitted to the FAB in 
opposition to the impairment evaluation that was relied upon in a 
recommended decision conform to the requirements set out in Sec.  
30.905(b) in order to be afforded any probative value, and noted that 
claimants have the burden of proving that the new medical evidence has 
greater probative value than the impairment evaluation relied upon in 
the recommended decision. Requirements of this sort that set out 
minimum standards for new evidence and the assumption of the burden of 
proof when challenging a determination made below are standard features 
of any adjudicative system, and are necessary to conserve scarce 
administrative resources. OWCP does not agree that their use in this 
context is either unduly burdensome on claimants or inherently unfair 
in a system such as Part E. Therefore, no changes were made to Sec.  
30.908 as a result of the comment.

Section 30.910

    Two comments from congressional representatives, four from advocacy 
groups and two from individuals objected to the provision in Sec.  
30.910(a) of the interim final rule that an impairment that cannot be 
assigned a numerical percentage using the AMA's Guides will not be 
included in a covered Part E employee's impairment rating, and noted 
that the Conference Report for Public Law 108-375 suggests that for 
those illnesses for which the AMA's Guides do not provide a method to 
assign a numerical percentage, the Department should devise another 
method to determine the amount of an impairment award to a covered Part 
E employee. See H.R. Conf. Rep. No. 108-767, at 893 (2004). However, as 
the Department pointed out when it promulgated Sec.  30.910, the plain 
language of section 7385s-2(b) requires OWCP to determine the amount of 
an impairment award to a covered Part E employee in accordance with the 
AMA's Guides and does not contain the exception referred to in the 
Conference Report for ``an illness for which the [AMA's Guides] do not 
provide an impairment rating. * * *'' It should be noted that this 
suggestion appears to be based on the assumption that the AMA's Guides 
cannot be used to determine an impairment rating for an illness unless 
they explicitly provide a method to evaluate that particular illness. 
However, because the Guides evaluate the impairment of organs and body 
functions rather than illnesses per se, even a newly identified illness 
can be evaluated using the Guides so long as its effects on those 
organs and/or body functions are known and quantifiable.
    As noted above, section 7385s-2(b) of EEOICPA requires that 
impairment ratings ``shall be determined in accordance with the 
American Medical Association's Guides to the Evaluation of Permanent 
Impairment.'' The discussion of mental impairments that do not 
originate from documented physical dysfunctions of the nervous system 
in Chapter 14 (Mental and Behavioral Disorders) of the AMA's Guides 
states that ``there are no precise measures of impairment in mental 
disorders. The use of percentages implies a certainty that does not 
exist.'' Chapter 14 then explains that the authors of the current 
(fifth) edition of

[[Page 78530]]

the AMA's Guides are ``unaware of data that show the reliability'' of 
any percentages for these particular types of impairments and that 
``the Committee on Disability and Rehabilitation of the American 
Psychiatric Association advised Guides contributors against the use of 
percentages in the chapter on mental and behavioral disorders of the 
fourth edition, and that remains the opinion of the authors of the 
present chapter.'' In support of their decision not to assign numerical 
percentages to mental impairments that do not originate from documented 
physical dysfunctions of the nervous system, the authors point out that 
``[n]o available empirical evidence supports any method for assigning a 
percentage of impairment of the whole person'' to these disorders. 
Since the AMA's Guides clearly takes the position that there is no 
basis to calculate numerical percentages of mental impairment due to 
mental disorders, attempting to do so by devising a rating mechanism 
independent of the AMA's Guides would violate EEOICPA's requirement 
that impairment ratings be determined ``in accordance with'' the AMA's 
Guides. Thus, Sec.  30.910(b) indicates that these types of mental 
impairments will not be included in an impairment rating; no change was 
made to this section in the final rule.

Section 30.911

    Two comments from individuals, two from congressional 
representatives, two from advocacy groups and two from attorneys 
questioned the appropriateness of the provision in Sec.  30.911(a) in 
light of the progressive nature of the covered illnesses that would be 
compensable under Part E of EEOICPA. OWCP's intent in the interim final 
rule was to apply the requirement that an individual reach ``maximum 
medical improvement'' in order for an impairment rating to be 
determined in a manner that is appropriate for the conditions covered 
by EEOICPA. OWCP recognizes that many of these covered illnesses are 
progressive, and that many employees may find themselves in a situation 
where their accepted condition is not likely to improve but can be 
expected to gradually deteriorate. The intent in the interim final rule 
was to allow for minimum impairment ratings to be calculated and 
compensated in such circumstances. However, since the wording of Sec.  
30.911(a) in the interim final rule did not convey this intent as 
clearly as it could have, this provision has been modified slightly in 
the final rule by changing the word ``change'' to ``improve'' in the 
final rule.

II. Miscellaneous Comments

    Several of the 533 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 Ombudsman

    OWCP received one comment from an advocacy group pointing out that 
the interim final regulations did not address the role and functions of 
the Ombudsman provided for in section 7385s-15 of EEOICPA. However, 
this omission was intentional and required by the terms of section 
7385s-15(d), which requires that the Ombudsman be independent ``from 
other officers and employees of the Department [of Labor] engaged in 
activities relating to the administration of the provisions of'' Part E 
of EEOICPA. Instead, the role and the functions of the Ombudsman are 
set out in Secretary's Order 1-2005. Therefore, the final rule also 
does not address either the role or the functions of the Ombudsman.

The Rulemaking Process

    OWCP received one comment from an attorney on a specific aspect of 
the rulemaking process. Without identifying any particular provision of 
the regulations, the commenter opined that at least some of them would 
not be comprehensible to some members of the public and should be 
rewritten in ``plain English.'' OWCP acknowledges that some of the 
regulations for Part E involve complex medical matters or complicated 
arithmetic calculations. However, while these concepts can be difficult 
to comprehend, OWCP went to great lengths in an effort to ensure that 
the corresponding regulations in subparts I and J were written in a 
clear and understandable manner. Since the commenter neither identified 
a particularly incomprehensible provision of the regulations nor 
provided any suggested improvements, no additional changes were made to 
the regulations based on this comment.

Coverage

    One DOE contractor and four individuals made suggestions about 
which workers or survivors should be covered by Part E of EEOICPA. 
However, the Act mandates the categories of workers and survivors 
covered under Part B and Part E and the regulations cannot be changed 
to either expand or restrict these categories unless the Act is 
amended. Therefore, the suggested changes have not been made in this 
final rule.

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) Corrections of 
typographical errors; and (2) 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 EEOICPA provides general statutory authority, 
which E.O. 13179 allocates to the Secretary, to prescribe rules and 
regulations necessary for administration of Part B of the Act. Section 
7385s-10(e) also provides the Secretary with the general statutory 
authority to prescribe regulations necessary for administration of Part 
E of the Act. Sections 7384t, 7384u and 7385s-8 provide the specific 
authority regarding medical treatment and care, including authority to 
determine 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), 44 U.S.C. 3501 et 
seq. The requirements set out in Sec. Sec.  30.401, 30.404, 30.420, 
30.421, 30.512, 30.518, 30.700, 30.701 and 30.702 of this rule were 
both submitted to and approved by OMB under the PRA in OMB Control Nos. 
1215-0054 (expires June 30, 2007), 1215-0055 (expires October 31, 
2009), 1215-0137 (expires March 31, 2007), 1215-0144 (expires October 
31, 2009), 1215-0176 (expires January 31, 2007), 1215-0193 (expires 
March 31, 2007) and 1215-0194 (expires March 31, 2007). The 
requirements in Sec. Sec.  30.100, 30.101, 30.102, 30.103, 30.111, 
30.112, 30.113, 30.114, 30.206, 30.207, 30.212, 30.213, 30.214, 30.215, 
30.221, 30.222, 30.226, 30.231, 30.232, 30.415, 30.416, 30.417, 30.505, 
30.620, 30.806, 30.905 and 30.907of this rule were also both submitted 
to and approved by OMB under the PRA in OMB Control No. 1215-0197 
(expires August 31, 2007).
    Following publication of this final rule, the Department plans to 
seek OMB approval of two new information collections under the PRA and 
will issue 60-day Federal Register notices

[[Page 78531]]

seeking public comment on (1) a collection that will annually request 
updated information relating to state workers' compensation benefits 
received by EEOICPA Part E beneficiaries; and (2) a collection annually 
requesting verifying information on state workers' compensation 
benefits from state authorities. These collections will implement the 
Department's responsibilities under section 7385s-11 of EEOICPA.

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 by section 3(f)(1) of that Order. The payment 
of the benefits provided for by EEOICPA through the program 
administered pursuant to this regulatory action has an annual effect on 
the economy of $100 million or more. However, this rule does 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 defined by 
section 3(f)(1) of E.O. 12866. This rule is also a ``significant 
regulatory action'' because it meets the criterion 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 EEOICPA.
    Based on the factors and assumptions set forth below, DOL's 
estimate of the aggregate cost of benefits and administrative expenses 
of this regulatory action implementing Part B and Part E of EEOICPA is, 
in millions of dollars:

----------------------------------------------------------------------------------------------------------------
                                                    FY2007       FY2008       FY2009       FY2010       FY2011
----------------------------------------------------------------------------------------------------------------
Admin..........................................         $162         $163         $147         $127         $111
Benefits.......................................        1,123          861          752          656          579
----------------------------------------------------------------------------------------------------------------

    The Department's estimate of the benefits to be paid pursuant to 
EEOICPA and of the administrative costs of providing those benefits is 
based on program experience to date, data collected from other federal 
agencies, assumptions about the incidence of cancer, covered beryllium 
disease, chronic silicosis and other covered illnesses in the claimant 
population, life expectancy tables, dose reconstruction acceptance 
rates, Physicians Panel acceptances under the former Part D of the Act, 
the anticipated distribution of benefit amounts, and its experience in 
estimating administrative and medical costs of workers' compensation 
programs. The Department's benefit estimates are not based on any 
projections regarding the number of future additions to the Special 
Exposure Cohort (SEC).
    For Part B benefits, estimates for cancer claims are based on the 
actual number of claims received by OWCP, the anticipated number of 
future claims, and the historical approval rates for both SEC and non-
SEC claims. Part B benefit estimates for beryllium exposure are based 
on the actual number of such claims received by OWCP, anticipated 
future claims, and the historical approval rate. Benefit estimates for 
chronic silicosis are based on similar factors. Benefit estimates for 
claims that require receipt of an award from DOJ under section 5 of 
RECA are based on historical claim receipts and include the amounts 
awarded by DOJ under RECA but paid from the compensation fund. Medical 
benefits for living employees eligible under Part B are computed using 
an average of $10,000 per year.
    Part E benefit estimates for Part E cases are based on cases 
received by OWCP to date, future expected receipts, and the average 
Part B approval rate. The benefit amounts for Part E are calculated 
based on an estimated distribution of approved claims with varying 
degrees of compensable impairment and wage-loss, with an average 
benefit amount of $135,000 and average medical costs of $10,000 per 
year for each eligible living employee. Additional Part E benefits for 
individuals who are determined to be eligible RECA section 5 uranium 
workers are computed based upon the number of such claims received to 
date and the expected number of such claims in the future.
    Administrative cost estimates were developed based upon OWCP's 
experience to date in administering Part B and the other workers' 
compensation programs that fall within its area of administrative 
responsibility, using calculations of the number of incoming claims and 
forecasting the necessary full-time equivalents and other resources 
that are necessary to efficiently administer the program.
    No more extensive economic impact analysis of this rule is 
necessary because this regulatory action only addresses the transfer of 
funds from the federal government to individuals who qualify under 
EEOICPA and to providers of medical services in that program. This 
regulatory action has no affect on the functioning of the economy and 
private markets, on the health and safety of the general population, or 
on the natural environment. In addition, because this rule 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. Such policy choices may 
affect who will be entitled to receive benefits (such as covered Part E 
employees with unratable impairments due to a covered illness), but 
will not have a significant impact on the number of eligible Part B or 
E beneficiaries or the level of benefits to which they are entitled.
    OMB has reviewed the rule for consistency with the President's 
priorities and the principles set forth in E.O. 12866.

VII. Small Business Regulatory Enforcement Fairness Act

    As required by Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the Department 
will report to Congress promulgation of this 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.

[[Page 78532]]

IX. Regulatory Flexibility Act

    The Department believes that this rule has ``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 that apply cost-control measures to 
payments for medical expenses are the only ones that could have a 
monetary effect on small businesses, and have been in effect since OWCP 
began administration of Part B of EEOICPA on July 31, 2001. The 
economic effect of these cost-control measures are not significant for 
a substantial number of those businesses who participate in the program 
under Parts B and E of EEOICPA, however, because no one business bills 
a significant amount to OWCP for EEOICPA-related services, and the 
monetary effect on bills that are submitted, while a worthwhile savings 
for the Government in the aggregate, are not significant for any 
individual business affected.
    The cost-control provisions are: (1) A set schedule of maximum 
allowable fees for professional medical services; (2) a set schedule 
for payment of pharmacy bills; and (3) a prospective payment system for 
hospital inpatient services. The methodologies used for the first two 
of these provisions were explained in the text of the preamble to two 
earlier regulatory actions that implemented EEOICPA in 2001 (66 FR 
28948) and 2002 (67 FR 78874), which essentially adopted payment 
systems that are prevalent in the industry. Their adoption for use in 
connection with OWCP's administration of Part E of the Act results in 
continued efficiencies for the Government and providers. The Government 
benefits because OWCP did not develop new cost containment measures for 
Part E claims, but rather adopted existing and well-recognized measures 
that were already in place. The providers benefit because submitting a 
bill and receiving a payment is almost the same as submitting it to 
Medicare, a program with which they are already familiar and have 
existing systems in place for billing--they do not have to incur 
unnecessary administrative costs to learn a new process because the 
EEOICPA bill process for Part E claims is identical to the bill process 
that applies to Part B claims, and is not readily distinguishable from 
the Medicare billing process. Similarly, pharmacies are familiar with 
billing through clearing houses and having their charges subject to 
limits by private insurance carriers. By adopting private sector 
uniform billing requirements and a familiar cost control methodology, 
OWCP has not altered the billing environment with which pharmacies are 
already familiar. The methods chosen, therefore, represent systems 
familiar to the providers. The third of these three provisions does not 
have an effect on a substantial number of ``small entities'' under 
Small Business Administration (SBA) standards, since most hospitals 
providing services for medical conditions covered by EEOICPA have 
annual receipts that exceed the set maximum.
    The implementation of these cost-control methods does not have a 
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 are reduced does not have a significant impact on any one small 
entity since these charges are currently being processed by other 
payers applying similar cost-control provisions. The costs to providers 
whose charges are reduced also are relatively small because EEOICPA 
bills simply do 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 covers 
only those employees who have sustained an occupational illness or a 
covered illness and require medical treatment on or after October 30, 
2000, 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 
is negligible. On the other hand, OWCP reaps substantial aggregate cost 
savings that benefit both OWCP (by strengthening the integrity of the 
program) and the taxpayers to whom the costs of the program are 
eventually charged.
    The Assistant Secretary for Employment Standards has certified to 
the Chief Counsel for Advocacy of the SBA that this rule does 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 
Part B of EEOICPA does not provide any specific procedures that 
claimants under that Part must follow in order to seek review of 
decisions on their claims, Part E specifies that claimants under that 
Part have 60 days to file petitions for review of decisions on their 
claims in the United States district courts, and mandates the use of an 
``arbitrary and capricious'' standard of review. It is reasonably 
likely that some EEOICPA claimants will seek review of adverse 
decisions in United States district courts pursuant to 28 U.S.C. 1331 
(for claims under Part B of EEOICPA) or the EEOICPA itself (for claims 
under Part E). This rule should help minimize the burden placed on 
courts by litigation seeking to challenge decisions under EEOICPA by 
providing claimants with an opportunity to seek administrative review 
of adverse decisions prior to resorting to the court system, and by 
providing a clear legal standard for affected conduct. The rule 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 Accountability 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

[[Page 78533]]

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 listed in the Catalog of Federal Domestic 
Assistance as No. 17.310.

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

0
For the reasons set forth in the preamble, 20 CFR Chapter 1 is amended 
as follows:

Subchapter A--Organization and Procedures

0
1. Part 1 is revised to read as follows:

PART 1--PERFORMANCE OF FUNCTIONS

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 and 7385s-10; 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 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

[[Page 78534]]

abolished and one organizational unit, the Office of Workers' 
Compensation Programs, was established in lieu of the Bureau of 
Employees' Compensation (39 FR 34722).

0
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 EEOICPA, in general?
30.1 What rules govern the administration of 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 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 EEOICPA benefits still entitled to those benefits?
Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims

Filing Claims for Benefits Under EEOICPA

30.100 In general, how does an employee file an initial claim for 
benefits?
30.101 In general, how is a survivor's claim filed?
30.102 In general, how does an employee file a claim for additional 
impairment or wage-loss under Part E of EEOICPA?
30.103 How does a claimant make sure that OWCP has the evidence 
necessary to process the claim?

Verification of Alleged Employment

30.105 What must DOE do after an employee or survivor files a claim?
30.106 Can OWCP request employment verification from other sources?

Evidence and Burden of Proof

30.110 Who is entitled to compensation under the Act?
30.111 What is the claimant's responsibility with respect to burden 
of proof, production of documents, presumptions, and affidavits?
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 compensable 
medical condition and how will that evidence be evaluated?

Special Procedures for Certain Radiogenic Cancer Claims

30.115 For those radiogenic cancer claims that do not seek benefits 
under Part B of the Act pursuant to the Special Exposure Cohort 
provisions, what will OWCP do once it determines that an employee 
contracted cancer?
Subpart C--Eligibility Criteria

General Provisions

30.200 What is the scope of this subpart?

Eligibility Criteria for Claims Relating to Covered Beryllium Illness 
Under Part B of EEOICPA

30.205 What are the criteria for eligibility for benefits relating 
to beryllium illnesses covered under Part B?
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 beryllium disease 
covered under Part B?

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
Parts B and E of EEOICPA

30.210 What are the criteria for eligibility for benefits relating 
to radiogenic 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, an atomic 
weapons employer facility or a RECA section 5 facility?
30.213 How does a claimant establish that the radiogenic cancer was 
at least as likely as not related to employment at the DOE facility, 
the atomic weapons employer facility, or the RECA section 5 
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 sustained 
an injury, illness, impairment or disease as a consequence of a 
diagnosed cancer?

Eligibility Criteria for Claims Relating to Chronic Silicosis Under 
Part B of EEOICPA

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, impairment or disease?

Eligibility Criteria for Certain Uranium Employees Under Part B of 
EEOICPA

30.225 What are the criteria for eligibility for benefits under Part 
B of EEOICPA for certain uranium employees?
30.226 How does a claimant establish that a covered uranium employee 
has sustained a consequential injury, illness, impairment or 
disease?

Eligibility Criteria for Other Claims Under Part E of EEOICPA

30.230 What are the criteria necessary to establish that an employee 
contracted a covered illness under Part E of EEOICPA?
30.231 How does a claimant prove employment-related exposure to a 
toxic substance at a DOE facility or a RECA section 5 facility?
30.232 How does a claimant establish that the employee has been 
diagnosed with a covered illness, or sustained an injury, illness, 
impairment or disease as a consequence of a covered illness?
Subpart D--Adjudicatory Process
30.300 What process will OWCP use to decide claims for entitlement 
and to provide for administrative review of those decisions?
30.301 May subpoenas be issued for witnesses and documents in 
connection with a claim under Part B of EEOICPA?
30.302 Who pays the costs associated with subpoenas?
30.303 What information may OWCP request in connection with a claim 
under Part E of EEOICPA?

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?

[[Page 78535]]

30.317 Can the FAB request a further response from the claimant or 
return a claim to the district office?
30.318 Can the FAB consider objections to HHS's reconstruction of a 
radiation dose or to the guidelines OWCP uses to determine if a 
claimed cancer was at least as likely as not related to employment?
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 treatment?
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 should medical bills and reimbursement requests be 
submitted?
30.421 What are the time frames for submitting bills and 
reimbursement requests?
30.422 If an employee is only partially reimbursed 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 
EEOICPA?
30.501 What order of precedence will OWCP use to determine which 
survivors are entitled to receive compensation under EEOICPA?
30.502 When is entitlement for survivors determined for purposes of 
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 Part B 
employees who only establish beryllium sensitivity under Part B of 
EEOICPA?
30.508 What is beryllium sensitivity monitoring?
30.509 Under what circumstances may a survivor claiming under Part E 
of the Act choose to receive the benefits that would otherwise be 
payable to a covered Part E employee who is deceased?

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 EEOICPA?
30.512 What does OWCP do when an overpayment is identified?
30.513 Under what circumstances may OWCP waive recovery of an 
overpayment?
30.514 If OWCP finds that the recipient of an overpayment was not at 
fault, what criteria are used to decide whether to waive recovery of 
it?
30.515 Is a recipient responsible for an overpayment that resulted 
from an error made by OWCP?
30.516 Under what circumstances would recovery of an overpayment 
defeat the purpose of the Act?
30.517 Under what circumstances would recovery of an overpayment be 
against equity and good conscience?
30.518 Can OWCP require the recipient of the overpayment to submit 
additional financial information?
30.519 How does OWCP communicate its final decision concerning 
recovery of an overpayment?
30.520 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 EEOICPA?
30.606 Under what circumstances must a recovery of money or other 
property in connection with an illness for which benefits are 
payable under 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 
EEOICPA a recovery that must be reported to OWCP?
30.610 Are payments to a covered Part B employee, a covered Part E 
employee or an 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 Part B of 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 was 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 Part B of EEOICPA?

Coordination of Part E Benefits With State Workers' Compensation 
Benefits

30.625 What does ``coordination of benefits'' mean under Part E of 
EEOICPA?
30.626 How will OWCP coordinate compensation payable under Part E of 
EEOICPA with benefits from state workers' compensation programs?
30.627 Under what circumstances will OWCP waive the statutory 
requirement to coordinate these benefits?
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?

[[Page 78536]]

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 subpoenas or 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?
Subpart I--Wage-Loss Determinations Under Part E of EEOICPA

General Provisions

30.800 What types of wage-loss are compensable under Part E of 
EEOICPA?
30.801 What special definitions does OWCP use in connection with 
Part E wage-loss determinations?

Evidence of Wage-Loss

30.805 What evidence does OWCP use to determine a covered Part E 
employee's average annual wage and whether he or she experienced 
compensable wage-loss under Part E of EEOICPA?
30.806 May a claimant submit factual evidence in support of a 
different determination of average annual wage and/or wage-loss than 
that found by OWCP?

Determinations of Average Annual Wage and Percentages of Loss

30.810 How will OWCP calculate the average annual wage of a covered 
Part E employee?
30.811 How will OWCP calculate the duration and extent of a covered 
Part E employee's initial period of compensable wage-loss?
30.812 May a covered Part E employee claim for subsequent periods of 
compensable wage-loss?

Special Rules for Certain Survivor Claims Under Part E of EEOICPA

30.815 Are there special rules that OWCP will use to determine the 
extent of a deceased covered Part E employee's compensable wage-
loss?
Subpart J--Impairment Benefits Under Part E of EEOICPA

General Provisions

30.900 Who can receive impairment benefits under Part E?
30.901 How does OWCP determine the extent of an employee's 
impairment that is due to a covered illness contracted through 
exposure to a toxic substance at a DOE facility or a RECA section 5 
facility, as appropriate?
30.902 How will OWCP calculate the amount of the award of impairment 
benefits that is payable under Part E?

Medical Evidence of Impairment

30.905 How may an impairment evaluation be obtained?
30.906 Who will pay for an impairment evaluation?
30.907 Can an impairment evaluation obtained by OWCP be challenged 
prior to issuance of the recommended decision?
30.908 How will the FAB evaluate new medical evidence submitted to 
challenge the impairment determination in the recommended decision?

Ratable Impairments

30.910 Will an impairment that cannot be assigned a numerical 
percentage using the AMA's Guides be included in the impairment 
rating?
30.911 Does maximum medical improvement always have to be reached 
for an impairment to be included in the impairment rating?
30.912 Can a covered Part E employee receive benefits for additional 
impairment following an award of such benefits by OWCP?

    Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 
7384d, 7384t, 7384u and 7385s-10; 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 EEOICPA, in general?

    Part B of 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 Part 
B 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. Part B also provides for 
the payment of supplemental compensation benefits to other covered Part 
B employees who have already been 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 
persons. Part E of the Act provides for the payment of compensation 
benefits to covered Part E employees and, where applicable, survivors 
of such employees. The regulations in this part describe the rules 
governing filing, processing, and paying claims for benefits under both 
Part B and Part E of EEOICPA.
    (a) Part B of EEOICPA provides for the payment of either lump-sum 
monetary compensation for the disability of a covered Part B employee 
due to an occupational illness or for monitoring for beryllium 
sensitivity, as well as for medical and related benefits for such 
illness. Part B also provides for the payment of monetary compensation 
for the disability of a covered Part B employee to specified survivors 
if the employee is deceased at the time of payment.
    (b) Part E of EEOICPA provides for the payment of monetary 
compensation for the established wage-loss and/or impairment of a 
covered Part E employee due to a covered illness, and for medical and 
related benefits for such covered illness. Part E also provides for the 
payment of monetary compensation for the death (and established wage-
loss, where applicable) of a covered Part E employee to specified 
survivors if the covered Part E employee is deceased at the time of 
payment.
    (c) All types of benefits and conditions of eligibility listed in 
this section are subject to the provisions of EEOICPA and this part.


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

    In accordance with 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 (HHS), 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

[[Page 78537]]

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 EEOICPA claims process been assigned?

    (a) In E.O. 13179, the President assigned the tasks associated with 
administration of the EEOICPA claims process among the Secretaries of 
Labor, HHS and Energy, and the Attorney General. In light of the fact 
that the Secretary of Labor has been assigned primary responsibility 
for administering EEOICPA, almost the entire claims process is within 
the exclusive control of OWCP. This means that all claimants file their 
claims with OWCP, and OWCP is responsible for granting or denying 
compensation under the Act (see Sec. Sec.  30.100 through 30.102). 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 occupational illnesses under Part B of the Act and covered 
illnesses under Part E of the Act. In addition, OWCP provides an 
administrative review process for claimants who disagree with its 
recommended and final adverse decisions on claims of entitlement (see 
Sec. Sec.  30.300 through 30.320).
    (b) However, HHS has exclusive control of the portion of the claims 
process under which it provides reconstructed doses for certain 
radiogenic cancer claims (see Sec.  30.115). HHS also has exclusive 
control of the process for designating classes of employees to be added 
to the Special Exposure Cohort under Part B of the Act, and has 
promulgated regulations governing that process at 42 CFR part 83. 
Finally, HHS has promulgated regulations at 42 CFR part 81 that set out 
guidelines that OWCP follows when it assesses the compensability of an 
employee's radiogenic cancer (see Sec.  30.213). DOE and DOJ must, 
among other things, notify potential claimants and submit evidence that 
OWCP deems necessary for its adjudication of claims under EEOICPA (see 
Sec. Sec.  30.105, 30.112, 30.206, 30.212 and 30.221).


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 EEOICPA, as well as personnel in the various 
federal agencies and DOL who process claims filed under EEOICPA or who 
perform administrative functions with respect to EEOICPA. The various 
subparts of this part contain the following:
    (a) Subpart A: The general statutory and administrative framework 
for processing claims under both Parts B and E of 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 involving EEOICPA claims, including convictions 
for fraud.
    (b) Subpart B: The rules for filing claims for entitlement under 
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 occupational illnesses 
and covered illnesses compensable under Parts B and E of EEOICPA, 
respectively.
    (d) Subpart D: The rules governing the adjudication process leading 
to recommended and final decisions on claims for entitlement filed 
under Parts B and E of EEOICPA. It also describes the hearing and 
reopening processes.
    (e) Subpart E: The rules governing medical care, second opinion and 
referee medical examinations and impairment evaluations directed by 
OWCP as part of its adjudication of entitlement, and medical reports 
and records in general. It also addresses the kinds of medical 
treatment that may be authorized and how medical bills are paid.
    (f) Subpart F: The rules relating to the payment of monetary 
compensation available under Parts B and E of EEOICPA. It includes 
provisions on medical monitoring for beryllium sensitivity, on the 
identification, processing and recovery of overpayments of 
compensation, and on the maximum aggregate amount of compensation 
payable under Part E.
    (g) Subpart G: The rules concerning the representation of claimants 
in connection with the administrative adjudication of claims before 
OWCP, subrogation of the United States, the effect of tort suits 
against beryllium vendors and atomic weapons employers, and the 
coordination of benefits under Part E of EEOICPA with state workers' 
compensation benefits for the same covered illness.
    (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.
    (i) Subpart I: The rules relating to the adjudication of alleged 
periods of wage-loss of covered Part E employees. It also includes 
provisions on the use by OWCP of Social Security Administration 
earnings information and certain medical evidence to establish 
compensable wage-loss.
    (j) Subpart J: The rules relating to the adjudication of alleged 
permanent impairment due to the exposure of covered Part E employees to 
toxic substances. It includes provisions relating to the medical 
evaluation of ratable impairments, the rating of progressive 
conditions, and qualifications of physicians.

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:
    (1) 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; 
or
    (2)(i) An individual employed at a facility that the National 
Institute for Occupational Safety and Health (NIOSH) reported had a 
potential for significant residual contamination outside of the period 
described in paragraph (c)(1) of this section;
    (ii) By the atomic weapons employer that owned the facility 
referred to in paragraph (c)(2)(i) of this section, or a subsequent 
owner or operator of such facility; and
    (iii) During a period reported by NIOSH, in its report dated 
October 2003 and titled ``Report on Residual Radioactive and Beryllium 
Contamination at Atomic Weapons Employer Facilities and Beryllium 
Vendor Facilities,'' or any update to that report, to have a potential 
for significant residual radioactive contamination.

[[Page 78538]]

    (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 either a covered Part B employee under Part B, or a 
covered Part E employee under Part E, from the Energy Employees 
Occupational Illness Compensation Fund. However, the term 
``compensation'' used in section 7385f(b) of EEOICPA (restricting 
entitlement to only one payment of compensation under Part B) means 
only the payments specified in section 7384s(a)(1) and in section 
7384u(a). 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 
NIOSH 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 to OWCP of an individual's 
entitlement to benefits under 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.
    (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 Part E employee means, under Part E of the Act, a 
Department of Energy contractor employee or a RECA section 5 uranium 
worker who has been determined by OWCP to have contracted a covered 
illness (see paragraph (r) of this section) through exposure at a 
Department of Energy facility or a RECA section 5 facility, as 
appropriate.
    (q) Covered Part B employee means, under Part B of the Act, a 
covered beryllium employee (see Sec.  30.205), a covered employee with 
cancer (see Sec.  30.210(a)), a covered employee with chronic silicosis 
(see Sec.  30.220), or a covered uranium employee (see paragraph (s) of 
this section).
    (r) Covered illness means, under Part E of the Act relating to 
exposures at a DOE facility or a RECA section 5 facility, an illness or 
death resulting from exposure to a toxic substance.
    (s) Covered uranium employee means, under Part B of the Act, an 
individual who has been determined by DOJ to be entitled to an award 
under section 5 of RECA, whether or not the individual was the employee 
or the deceased employee's survivor.
    (t) 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.
    (u) Department means the United States Department of Labor (DOL).
    (v) Department of Energy or DOE includes the predecessor agencies 
of the DOE, including the Manhattan Engineering District.
    (w) 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.
    (x)(1) Department of Energy facility means, as determined by the 
Director of OWCP, any building, structure, or premise, including the 
grounds upon which such building, structure, or premise is located:
    (i) 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

[[Page 78539]]

    (ii) With regard to which the DOE has or had:
    (A) A proprietary interest; or
    (B) Entered into a contract with an entity to provide management 
and operation, management and integration, environmental remediation 
services, construction, or maintenance services.
    (2) DOL has adopted the determinations of the Department of Energy 
regarding Department of Energy facilities that were contained in the 
list of facilities published in the Federal Register on August 23, 2004 
(69 FR 51825). DOL will periodically update this list as it deems 
appropriate in its sole discretion by publishing a revised list of 
Department of Energy facilities in the Federal Register.
    (y) Disability means, for purposes of determining entitlement to 
payment of Part B benefits 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.
    (z) Eligible surviving beneficiary means any individual who is 
entitled under sections 7384s(e), 7384u(e), or 7385s-3(c) and (d) of 
the Act to receive a payment on behalf of a deceased covered Part B 
employee or a deceased covered Part E employee.
    (aa) Employee means either a current or former employee.
    (bb) Occupational illness means, under Part B of the Act, a covered 
beryllium illness, cancer sustained in the performance of duty as 
defined in Sec.  30.210(a), specified cancer, chronic silicosis, or an 
illness for which DOJ has awarded compensation under section 5 of RECA.
    (cc) OWCP means the Office of Workers' Compensation Programs, 
United States Department of Labor. One of the four divisions of OWCP is 
the Division of Energy Employees Occupational Illness Compensation.
    (dd) 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.
    (ee) 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.
    (ff) Specified cancer (as defined in section 4(b)(2) of RECA and in 
EEOICPA) 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.
    (gg) Survivor means:
    (1) For claims under Part B of the Act, and subject to paragraph 
(gg)(3) of this section, a surviving spouse, child, parent, grandchild 
and grandparent of a deceased covered Part B employee.
    (2) For claims under Part E of the Act, and subject to paragraph 
(gg)(3) of this section, a surviving spouse and child of a deceased 
covered Part E employee.
    (3) Those individuals listed in paragraphs (gg)(1) and (gg)(2) 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.
    (hh) 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 Part B employee was exposed to 
such substance in the 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 under 
Part B, the last date on which a covered Part B 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; 
or
    (3) In regard to a claim arising out of exposure to a toxic 
substance, the last date on which a covered Part E employee was 
employed at the Department of Energy facility or RECA section 5 
facility, as appropriate, at which the exposure took place.
    (ii) Toxic substance means any material that has the potential to 
cause illness or death because of its radioactive, chemical, or 
biological nature.
    (jj) 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 
EEOICPA considered confidential?

    All OWCP records relating to claims for benefits under 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.

[[Page 78540]]

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 payments of EEOICPA monetary benefits to 
collect overdue alimony and child support. A request to garnish a 
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 EEOICPA. The Department's 
regulations implementing PFCRA are found at 29 CFR part 22.


Sec.  30.17  Is a beneficiary who defrauds the government in connection 
with a claim for EEOICPA 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 forfeits (effective the date either the guilty plea is 
accepted or a verdict of guilty is returned after trial) any 
entitlement to any further benefits for any injury, illness or death 
covered by this part 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

Filing Claims for Benefits Under EEOICPA


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

    (a) To claim benefits under EEOICPA, an employee must file a claim 
in writing. Form EE-1 should be used for this purpose, but any written 
communication that requests benefits under 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 or on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm. The employee's claim must be filed 
with OWCP, but another person may do so on the employee's behalf.
    (b) The employee may choose, at his or her own option, to file for 
benefits for only certain conditions that are potentially compensable 
under the Act (e.g., the employee may not want to claim for an 
occupational illness or a covered illness for which a payment has been 
received that would necessitate an offset of EEOICPA benefits under the 
provisions of Sec.  30.505(b) of these regulations). The employee may 
withdraw his or her claim by so requesting in writing to OWCP at any 
time before OWCP determines his or her eligibility for benefits.
    (c) Except as provided in paragraph (d) of this section, 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, whichever is the earliest determinable date. 
However, in no event will a claim under Part B of EEOICPA be considered 
to be ``filed'' earlier than July 31, 2001, nor will a claim under Part 
E of EEOICPA be considered to be ``filed'' earlier than October 30, 
2000.
    (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 filing a claim under Part 
B of the Act, the employee is responsible for submitting with his or 
her claim, or arranging for the submission of, medical evidence to OWCP 
that establishes that he or she sustained an occupational illness and/
or a covered illness. This required medical evidence is described in 
Sec.  30.114 and does not refer to mere recitations of symptoms the 
employee experienced that the employee believes indicate that he or she 
sustained an occupational illness or a covered illness.
    (d) For those claims under Part E of EEOICPA that were originally 
filed with DOE as claims for assistance under former section 7385o of 
EEOICPA (which was repealed on October 28, 2004), a claim is considered 
to be ``filed'' on the date that the employee mailed his or her claim 
to DOE, as determined by postmark, or on the date that the claim was 
received by DOE, whichever is the earliest determinable date. However, 
in no event will a claim referred to in this paragraph be considered to 
be ``filed'' earlier than October 30, 2000.


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

    (a) A survivor of an employee who sustained an occupational illness 
or a covered illness must file a claim for compensation in writing. 
Form EE-2 should be used for this purpose, but any written 
communication that requests survivor 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 obtained from OWCP or on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm. The survivor's 
claim must be filed with OWCP, but another person may do so on the 
survivor's behalf. Although only one survivor needs to file a claim 
under this section to initiate the development process, OWCP will 
distribute any monetary benefits payable on the claim among all 
eligible surviving beneficiaries who have filed claims with OWCP.
    (b) A survivor may choose, at his or her own option, to file for 
benefits for only certain conditions that are potentially compensable 
under the Act (e.g., the survivor may not want to claim

[[Page 78541]]

for an occupational illness or a covered illness for which a payment 
has been received that would necessitate an offset of EEOICPA benefits 
under the provisions of Sec.  30.505(b) of these regulations). The 
survivor may withdraw his or her claim by so requesting in writing to 
OWCP at any time before OWCP determines his or her eligibility for 
benefits.
    (c) A survivor must be alive to receive any payment under EEOICPA; 
there is no vested right to such payment.
    (d) Except as provided in paragraph (e) of this section, 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, whichever is the earliest 
determinable date. However, in no event will a survivor's claim under 
Part B of the Act be considered to be ``filed'' earlier than July 31, 
2001, nor will a survivor's claim under Part E of the Act be considered 
to be ``filed'' earlier than October 30, 2000.
    (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 claiming 
under Part B of the Act, 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 or a covered illness. This 
required medical evidence is described in Sec.  30.114 and does not 
refer to mere recitations by the survivor of symptoms the employee 
experienced that the survivor believes indicate that the employee 
sustained an occupational illness or a covered illness.
    (e) For those claims under Part E of EEOICPA that were originally 
filed with DOE as claims for assistance under former section 7385o of 
EEOICPA (which was repealed on October 28, 2004), a claim is considered 
to be ``filed'' on the date that the survivor mailed his or her claim 
to DOE, as determined by postmark, or on the date that the claim was 
received by DOE, whichever is the earliest determinable date. However, 
in no event will a claim referred to in this paragraph be considered to 
be ``filed'' earlier than October 30, 2000.
    (f) A spouse or a child of a deceased DOE contractor employee or 
RECA section 5 uranium worker, who is not a covered spouse or covered 
child under Part E, may submit a written request to OWCP for a 
determination of whether that deceased DOE contractor employee or RECA 
section 5 uranium worker contracted a covered illness under section 
7385s-4(d) of EEOICPA.
    (1) Any such request submitted pursuant to paragraph (f) of this 
section will not be considered a survivor's claim for benefits under 
Part E of the Act.
    (2) As part of its consideration of any request submitted pursuant 
to paragraph (f) of this section, OWCP will apply the eligibility 
criteria in subpart C of this part. However, the adjudicatory 
procedures contained in subpart D of this part will not apply to OWCP's 
consideration of such a request, and OWCP's response to the request 
will not constitute a final agency decision on entitlement to any 
benefits under EEOICPA.


Sec.  30.102  In general, how does an employee file a claim for 
additional impairment or wage-loss under Part E of EEOICPA?

    (a) An employee previously awarded impairment benefits by OWCP may 
file a claim for additional impairment benefits. Such claim must be 
based on an increase in the employee's minimum impairment rating 
attributable to the covered illness or illnesses from the impairment 
rating that formed the basis for the last award of such benefits by 
OWCP. OWCP will only adjudicate claims for such an increased rating 
that are filed at least two years from the date of the last award of 
impairment benefits. However, OWCP will not wait two years before it 
will adjudicate a claim for additional impairment that is based on an 
allegation that the employee sustained a new covered illness.
    (b) An employee previously awarded wage-loss benefits by OWCP may 
be eligible for additional wage-loss benefits for periods of wage-loss 
that were not addressed in a prior claim only if the employee had not 
reached his or her Social Security retirement age at the time of the 
prior award. OWCP will adjudicate claims filed on a yearly basis in 
connection with each succeeding calendar year for which qualifying 
wage-loss under Part E is alleged, as well as claims that aggregate 
calendar years for which qualifying wage-loss is alleged.
    (c) Employees should use Form EE-10 to claim for additional 
impairment or wage-loss benefits under Part E of EEOICPA.
    (1) The employee, or the person filing the claim on behalf of the 
employee, shall affirm that the information provided on Form EE-10 is 
true, and must inform OWCP of any subsequent changes to that 
information.
    (2) The employee is responsible for submitting with any claim filed 
under this section, or arranging for the submission of, factual and 
medical evidence establishing that he or she experienced another 
calendar year of qualifying wage-loss, and/or medical evidence 
establishing that he or she has an increased minimum impairment rating, 
as appropriate.


Sec.  30.103  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.

------------------------------------------------------------------------
                 Form No.                               Title
------------------------------------------------------------------------
(1) EE-1..................................  Claim for Benefits Under the
                                             Energy Employees
                                             Occupational Illness
                                             Compensation Program Act.
(2) EE-2..................................  Claim for Survivor Benefits
                                             Under the Energy Employees
                                             Occupational Illness
                                             Compensation Program Act.
(3) EE-3..................................  Employment History for a
                                             Claim Under the Energy
                                             Employees Occupational
                                             Illness Compensation
                                             Program Act.
(4) EE-4..................................  Employment History Affidavit
                                             for a Claim Under the
                                             Energy Employees
                                             Occupational Illness
                                             Compensation Program Act.
------------------------------------------------------------------------

    (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, DC 20210. They may also be obtained from OWCP district 
offices and on the Internet at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.

Verification of Alleged Employment


Sec.  30.105  What must DOE do after an employee or survivor files a 
claim?

    (a) After it receives a claim for benefits described in Sec. Sec.  
30.100 or 30.101, OWCP may request that DOE verify the employment 
history provided by the claimant. Upon receipt of such a request, DOE 
will complete Form EE-5 as soon as possible and transmit the completed 
form to OWCP. On this form, DOE will certify either that it concurs 
with the employment history provided by the claimant, that it disagrees 
with such history, or that it can neither concur nor disagree after 
making a reasonable search of its records and also making a reasonable 
effort to locate

[[Page 78542]]

pertinent records not already in its possession.
    (b) Claims for additional impairment or wage-loss benefits under 
Part E of the Act described in Sec.  30.102 will not require any 
verification of employment by DOE, since OWCP will have made any 
required findings on this particular issue when it adjudicated the 
employee's initial claim for benefits.


Sec.  30.106  Can OWCP request employment verification from other 
sources?

    (a) For most claims filed under EEOICPA, DOE has access to 
sufficient factual information to enable it to fulfill its obligations 
described in Sec.  30.105(a). However, in instances where it lacks such 
information, DOE may arrange for other entities to provide OWCP with 
the information necessary to verify an employment history submitted as 
part of a claim. These other entities may consist of either current or 
former DOE contractors and subcontractors, atomic weapons employers, 
beryllium vendors, or other entities with access to relevant employment 
information.
    (b) On its own initiative, OWCP may also arrange for entities other 
than DOE to perform the employment verification duties described in 
Sec.  30.105(a).

Evidence and Burden of Proof


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

    (a) Under Part B of EEOICPA, compensation is payable to the 
following covered Part B employees, or their survivors:
    (1) A ``covered beryllium employee'' (as described in Sec.  
30.205(a)) with a covered beryllium illness (as defined in Sec.  
30.5(o)) who was exposed to beryllium in the performance of duty (in 
accordance with Sec.  30.206).
    (2) A ``covered Part B employee with cancer'' (as described in 
Sec.  30.210(a)).
    (3) A ``covered Part B employee with chronic silicosis'' (as 
described in Sec.  30.220).
    (4) A ``covered uranium employee'' (as defined in Sec.  30.5(s)).
    (b) Under Part E of EEOICPA, compensation is payable to a ``covered 
Part E employee'' (as defined in Sec.  30.5(p)), or his or her 
survivors.
    (c) Any claim that does not meet all of the criteria for at least 
one of these categories, as set forth in the regulations in this part, 
must be denied.
    (d) All claims for benefits under the Act must comply with the 
claims procedures and requirements set forth in subpart B of this part 
before any payment can be made from the Fund.


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

    (a) Except where otherwise provided in the Act and these 
regulations, the claimant bears the burden of proving by a 
preponderance of the evidence the existence of each and every criterion 
necessary to establish eligibility under any compensable claim category 
set forth in Sec.  30.110. Proof by a preponderance of the evidence 
means that it is more likely than not that the proposition to be proved 
is true. Subject to the exceptions expressly provided in the Act and 
the regulations in this part, 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 claimant of the 
deficiencies and provide him or her 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 claimant 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) Pursuant to Sec. Sec.  30.105 and/or 30.106, DOE or another 
entity verifying alleged employment 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 or another entity certifies that it concurs with the 
employment information provided by the claimant, then the criterion for 
covered employment will be established.
    (2) If DOE or another entity 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 or another entity 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.

[[Page 78543]]

    (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 
compensable medical condition and how will that evidence be evaluated?

    (a) Evidence of a compensable 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 compensable 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 compensable 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, illnesses, impairments or diseases, 
the claimant must also submit a physician's fully rationalized medical 
report showing a causal relationship between the resulting injury, 
illness, impairment or disease and the compensable 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.

Special Procedures for Certain Radiogenic Cancer Claims


Sec.  30.115  For those radiogenic cancer claims that do not seek 
benefits under Part B of the Act pursuant to the Special Exposure 
Cohort provisions, what will OWCP do once it determines that an 
employee contracted cancer?

    (a) Other than claims for a non-radiogenic cancer listed by HHS at 
42 CFR 81.30, or claims seeking benefits under Part E of the Act that 
have previously been accepted under section 7384u of the Act, or claims 
previously accepted under Part B pursuant to the Special Exposure 
Cohort provisions, OWCP will forward the claim 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 may be suspended.
    (1) This package will include OWCP's initial findings in regard to 
the diagnosis and date of diagnosis of the employee, as well as any 
employment history compiled by OWCP (including information such as 
dates and locations worked, and job titles). The package, however, will 
not constitute either a recommended or final decision by OWCP on the 
claim.
    (2) HHS will then reconstruct the radiation dose of the employee, 
after 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 resume its adjudication of the cancer claim and consider whether 
the claimant has met the eligibility criteria set forth in subpart C of 
this part. However, during the period before it receives a 
reconstructed dose from HHS, OWCP may continue to develop other aspects 
of a claim, to the extent that it deems such development to be 
appropriate.

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 under Part B of EEOICPA relating to 
covered beryllium illness under sections 7384l, 7384n, 7384s and 7384t 
of the Act; for cancer under sections 7384l, 7384n, 7384q and 7384t of 
the Act; for chronic silicosis under sections 7384l, 7384r, 7384s and 
7384t of the Act; and for claims relating to covered uranium employees 
under sections 7384t and 7384u of the Act. These regulations also 
describe the criteria for eligibility for benefits for claims under 
Part E of EEOICPA relating to covered illnesses under sections 7385s-4 
and 7385s-5 of the Act. This subpart describes the type and extent of 
evidence that will be necessary to establish the criteria for 
eligibility for compensation for these illnesses.

Eligibility Criteria for Claims Relating to Covered Beryllium Illness 
Under Part B of EEOICPA


Sec.  30.205  What are the criteria for eligibility for benefits 
relating to beryllium illnesses covered under Part B of EEOICPA?

    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 only if the 
criteria in paragraphs (a)(1) and (a)(3) of this section, or (a)(2) and 
(a)(3) of this section, are established:
    (1) The employee is a ``current or former employee as defined in 5 
U.S.C. 8101(1)'' (see Sec.  30.5(t) 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 civilian 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, including periods during which 
environmental remediation of a

[[Page 78544]]

vendor's facility was undertaken pursuant to a contract between the 
vendor and DOE; and
    (3) The civilian 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(x) 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, a contractor or subcontractor of 
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, 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 as a by product of any regularly 
conducted business activity or by an entity that acted as a contractor 
or subcontractor to the DOE.


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

    (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 Radiogenic Cancer Under 
Parts B and E of EEOICPA


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

    (a) To establish eligibility for benefits for radiogenic cancer 
under Part B of EEOICPA, an employee or his or her survivor must show 
that:
    (1) The employee has been diagnosed with one of the forms of cancer 
specified in Sec.  30.5(ff) of this part; and
    (i) Is a member of the Special Exposure Cohort (as described in 
Sec.  30.214(a) of this subpart) who, as a civilian DOE employee or 
civilian DOE contractor employee, contracted the specified cancer after 
beginning employment at a DOE facility; or
    (ii) Is a member of the Special Exposure Cohort (as described in 
Sec.  30.214(a) of this subpart) who, as a civilian atomic weapons 
employee, contracted the specified cancer after beginning employment at 
an atomic weapons employer facility (as defined in Sec.  30.5(e)); or
    (2) The employee has been diagnosed with cancer; and

[[Page 78545]]

    (i)(A) Is/was a civilian DOE employee who contracted that cancer 
after beginning employment at a DOE facility; or
    (B) Is/was a civilian DOE contractor employee who contracted that 
cancer after beginning employment at a DOE facility; or
    (C) Is/was a civilian atomic weapons employee who contracted that 
cancer after beginning employment at an atomic weapons employer 
facility; and
    (ii) The cancer was at least as likely as not related to the 
employment at the DOE facility or atomic weapons employer facility; or
    (3) The employee has been diagnosed with an injury, illness, 
impairment or disease that arose as a consequence of the accepted 
cancer.
    (b)(1) To establish eligibility for benefits for radiogenic cancer 
under Part E of EEOICPA, an employee or his or her survivor must show 
that:
    (i) The employee has been diagnosed with cancer; and
    (A) Is/was a civilian DOE contractor employee or a civilian RECA 
section 5 uranium worker who contracted that cancer after beginning 
employment at a DOE facility or a RECA section 5 facility; and
    (B) The cancer was at least as likely as not related to exposure to 
a toxic substance of a radioactive nature at a DOE facility or a RECA 
section 5 facility; and
    (C) It is at least as likely as not that the exposure to such toxic 
substance(s) was related to employment at a DOE facility or a RECA 
section 5 facility; or
    (ii) The employee has been diagnosed with an injury, illness, 
impairment or disease that arose as a consequence of the accepted 
cancer.
    (2) Eligibility for benefits for radiogenic cancer under Part E in 
a claim that has previously been accepted under Part B pursuant to the 
Special Exposure Cohort provisions is described in Sec.  30.230(a) of 
these regulations.


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 a 
specified cancer (as defined in Sec.  30.5(ff)) or other cancer with 
medical evidence that sets forth an explicit diagnosis of cancer and 
the date on which that diagnosis was first made.


Sec.  30.212  How does a claimant establish that the employee 
contracted cancer after beginning employment at a DOE facility, an 
atomic weapons employer facility or a RECA section 5 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, or at a RECA section 5 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)(1) Except as provided in paragraph (b)(2) of this section, if 
the evidence shows that exposure occurred while the employee was 
employed at a facility during a time frame that is outside the relevant 
period indicated for that facility, OWCP may request that DOE provide 
additional information on the facility. OWCP will determine whether the 
evidence of record supports enlarging the relevant period for that 
facility.
    (2) OWCP may choose not to request that DOE provide additional 
information on an atomic weapons employer facility that NIOSH reported 
had a potential for significant residual radiation contamination in its 
report dated October 2003 and titled ``Report on Residual Radioactive 
and Beryllium Contamination at Atomic Weapons Employer Facilities and 
Beryllium Vendor Facilities,'' or any update to that report, if the 
evidence referred to in paragraph (a) of this section establishes that 
the employee was employed at that facility during a period when NIOSH 
reported that it had a potential for significant residual radiation 
contamination.
    (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 radiogenic cancer 
was at least as likely as not related to employment at the DOE 
facility, the atomic weapons employer facility, or the RECA section 5 
facility?

    (a) HHS, with the advice of the Advisory Board on Radiation and 
Worker Health, has issued regulatory guidelines at 42 CFR part 81 that 
OWCP uses to determine whether radiogenic cancers claimed under Parts B 
and E were at least as likely as not related to employment at a DOE 
facility, an atomic weapons employer facility, or a RECA section 5 
facility, as appropriate. Persons should consult HHS's regulations for 
information regarding the factual evidence that will be considered by 
OWCP, in addition to the employee's radiation dose reconstruction that 
will be provided to OWCP by HHS, in making this particular factual 
determination.
    (b) HHS's regulations satisfy the legal requirements in section 
7384n(c) of the Act, which also sets out OWCP's obligation to use them 
in its adjudication of claims for radiogenic cancer filed under Part B 
of the Act, and provide the factual basis for OWCP to determine if the 
``probability of causation'' (PoC) that an employee's cancer was 
sustained in the performance of duty is 50% or greater (i.e., it is 
``at least as likely as not'' causally related to employment), as 
required under section 7384n(b).
    (c) OWCP also uses HHS's regulations when it makes the 
determination required by section 7385s-4(c)(1)(A) of the Act, since 
those regulations provide the factual basis for OWCP to determine if 
``it is at least as likely as not'' that exposure to radiation at a DOE 
facility or RECA section 5 facility, as appropriate, was a significant 
factor in aggravating, contributing to, or causing the employee's 
radiogenic cancer claimed under Part E. For cancer claims under Part E, 
if the PoC is less than 50% and the claimant alleges that the employee 
was exposed to additional toxic substances, OWCP will determine if the 
claim is otherwise compensable pursuant to Sec.  30.230(d) of this 
part.


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 Sec.  30.210(a)(1), 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

[[Page 78546]]

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 
sustained an injury, illness, impairment or disease as a consequence of 
a diagnosed cancer?

    An injury, illness, impairment or disease sustained as a 
consequence of a diagnosed cancer covered by the provisions of Sec.  
30.210 must be established with a fully rationalized medical report by 
a physician that shows the relationship between the injury, illness, 
impairment or disease and the cancer. Neither the fact that the injury, 
illness, impairment or disease manifests itself after a diagnosis of a 
cancer, nor the belief of the claimant that the injury, illness, 
impairment or disease was caused by the cancer, is sufficient in itself 
to prove a causal relationship.

Eligibility Criteria for Claims Relating to Chronic Silicosis Under 
Part B of EEOICPA


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

    To establish eligibility for benefits for chronic silicosis under 
Part B of EEOICPA, an employee or his or her survivor must show that:
    (a) The employee is a civilian DOE employee, or a civilian 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(x)) 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 injury, illness, 
impairment 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, 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, impairment 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 
NIOSH 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 disease 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 disease and the accepted chronic silicosis. 
Neither the fact that the injury, illness, impairment or disease 
manifests itself after a diagnosis of accepted chronic silicosis, nor 
the belief of the claimant that the injury, illness, impairment or 
disease was caused by the accepted chronic silicosis, is sufficient in 
itself to prove a causal relationship.

[[Page 78547]]

Eligibility Criteria for Certain Uranium Employees Under Part B of 
EEOICPA


Sec.  30.225  What are the criteria for eligibility for benefits under 
Part B of EEOICPA 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 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 RECA). If a deceased employee's survivor(s) 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 injury, 
illness, impairment 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 RECA.


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

    An injury, illness, impairment or disease 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 disease and the accepted medical condition. Neither the 
fact that the injury, illness, impairment or disease 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 disease was caused by such a condition, is 
sufficient in itself to prove a causal relationship.

Eligibility Criteria for Other Claims Under Part E of EEOICPA


Sec.  30.230  What are the criteria necessary to establish that an 
employee contracted a covered illness under Part E of EEOICPA?

    To establish that an employee contracted a covered illness under 
Part E of the Act, the employee, or his or her survivor, must show one 
of the following:
    (a) That OWCP has determined under Part B of EEOICPA that the 
employee is a Department of Energy contractor employee as defined in 
Sec.  30.5(w), and that he or she has been awarded compensation under 
that Part of the Act for an occupational illness;
    (b) That the Attorney General has determined that the employee is 
entitled to payment of $100,000 as compensation due under section 5 of 
RECA for a claim made under that statute (however, 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 
benefits under Part E of EEOICPA in accordance with section 7385s-3 of 
the Act);
    (c) That the Secretary of Energy has accepted a positive 
determination of a Physicians Panel that the employee sustained an 
illness or died due to exposure to a toxic substance at a DOE facility 
under former section 7385o of EEOICPA, or that the Secretary of Energy 
has found significant evidence contrary to a negative determination of 
a Physicians Panel; or
    (d)(1) That the employee is a civilian Department of Energy 
contractor employee as defined in Sec.  30.5(w), or a civilian who was 
employed in a uranium mine or mill located in Colorado, New Mexico, 
Arizona, Wyoming, South Dakota, Washington, Utah, Idaho, North Dakota, 
Oregon or Texas at any time during the period from January 1, 1942 
through December 31, 1971, or was employed in the transport of uranium 
ore or vanadium-uranium ore from such a mine or mill during that same 
period, and that he or she:
    (i) Has been diagnosed with an illness; and
    (ii) That it is at least as likely as not that exposure to a toxic 
substance at a Department of Energy facility or at a RECA section 5 
facility, as appropriate, was a significant factor in aggravating, 
contributing to, or causing the illness; and
    (iii) That it is at least as likely as not that the exposure to 
such toxic substance was related to employment at a Department of 
Energy facility or a RECA section 5 facility, as appropriate.
    (2) In making the determination under paragraph (d)(1)(ii) of this 
section, OWCP will consider:
    (i) The nature, frequency and duration of exposure of the covered 
employee to the substance alleged to be toxic;
    (ii) Evidence of the carcinogenic or pathogenic properties of the 
alleged toxic substance to which the employee was exposed;
    (iii) An opinion of a qualified physician with expertise in 
treating, diagnosing or researching the illness claimed to be caused or 
aggravated by the alleged exposure; and
    (iv) Any other evidence that OWCP determines to have demonstrated 
relevance to the relation between a particular toxic substance and the 
claimed illness.


Sec.  30.231  How does a claimant prove employment-related exposure to 
a toxic substance at a DOE facility or a RECA section 5 facility?

    To establish employment-related exposure to a toxic substance at a 
Department of Energy facility or RECA section 5 facility as required by 
Sec.  30.230(d), an employee, or his or her survivor(s), must prove 
that the employee was employed at such facility and that he or she was 
exposed to a toxic substance in the course of that employment.
    (a) Proof of employment may be established by 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) Proof of exposure to a toxic substance may be established by 
the submission of any appropriate document or information that is 
evidence that such substance was present at the facility in which the 
employee was employed and that the employee came into contact with such 
substance. OWCP site exposure matrices may be used to provide probative 
factual evidence that a particular substance was present at either a 
DOE facility or a RECA section 5 facility.


Sec.  30.232  How does a claimant establish that the employee has been 
diagnosed with a covered illness, or sustained an injury, illness, 
impairment or disease as a consequence of a covered illness?

    (a) To establish that the employee has been diagnosed with a 
covered illness as required by Sec.  30.230(d), the employee, or his or 
her survivor(s), must provide the following:
    (1) The name and address of any licensed physician who is the 
source of a diagnosis based upon documented medical information that 
the employee has or had an illness and that the illness may have 
resulted from exposure to a toxic substance while the employee was 
employed at a DOE facility or a RECA section 5 facility, as 
appropriate, and, to the extent practicable, a copy of the diagnosis 
and a summary of the information upon which the diagnosis is based; and
    (2) A signed medical release, authorizing the release of any 
diagnosis,

[[Page 78548]]

medical opinion and medical records documenting the diagnosis or 
opinion that the employee has or had an illness and that the illness 
may have resulted from exposure to a toxic substance while the employee 
was employed at a DOE facility or RECA section 5 facility, as 
appropriate; and
    (3) To the extent practicable and appropriate, an occupational 
history obtained by a physician, an occupational health professional, 
or a DOE-sponsored Former Worker Program (if such an occupational 
history is not reasonably available or is inadequate, and such history 
is deemed by OWCP to be needed for the fair adjudication of the claim, 
then OWCP may assist the claimant in developing this history); and
    (4) Any other information or materials deemed by OWCP to be 
necessary to provide reasonable evidence that the employee has or had 
an illness that may have arisen from exposure to a toxic substance 
while employed at a DOE facility or RECA section 5 facility, as 
appropriate.
    (b) The employee, or his or her survivor(s), may also submit to 
OWCP other evidence not described in paragraph (a) of this section 
showing that the employee has or had an illness that resulted from an 
exposure to a toxic substance during the course of employment at either 
a DOE facility or a RECA section 5 facility, as appropriate.
    (c) An injury, illness, impairment or disease sustained as a 
consequence of a covered illness (as defined in Sec.  30.5(r)) must be 
established with a fully rationalized medical report by a physician 
that shows the relationship between the injury, illness, impairment or 
disease and the covered illness. Neither the fact that the injury, 
illness, impairment or disease manifests itself after a diagnosis of a 
covered illness, nor the belief of the claimant that the injury, 
illness, impairment or disease was caused by the covered illness, is 
sufficient in itself to prove a causal relationship.

Subpart D--Adjudicatory Process


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

    OWCP district offices will issue recommended decisions with respect 
to claims for entitlement under Part B and/or Part E of EEOICPA that 
are filed pursuant to the regulations set forth in subpart B of this 
part. In circumstances where a claim is made for more than one benefit 
available under Part B and/or Part E of the Act, OWCP may issue a 
recommended decision on only part of that particular claim in order to 
adjudicate that portion of the claim as quickly as possible. Should 
this occur, OWCP will issue one or more recommended decisions on the 
deferred portions of the claim when the adjudication of those portions 
is completed. All recommended decisions granting and/or denying 
benefits under Part B and/or Part E of 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 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 for entitlement.


Sec.  30.301  May subpoenas be issued for witnesses and documents in 
connection with a claim under Part B of EEOICPA?

    (a) In connection with the adjudication of a claim under Part B of 
EEOICPA, an OWCP district office and/or a FAB reviewer may, at their 
own initiative, issue subpoenas for the attendance and testimony of 
witnesses, and for the production of books, electronic records, 
correspondence, papers or other relevant documents. Subpoenas will only 
be issued for documents if they are relevant and cannot be obtained by 
other means, and for witnesses only where oral testimony is the best 
way to ascertain the facts.
    (b) A claimant may also request a subpoena in connection with his 
or her claim under Part B of the Act, but such request may only be made 
to a FAB reviewer. No subpoenas will be issued at the request of the 
claimant under any other portion of the claims process. The decision to 
grant or deny such request is within the discretion of the FAB 
reviewer. To request a subpoena under this section, the requestor must:
    (1) Submit the request in writing and send it to the FAB reviewer 
as early as possible, but no later than 30 days (as evidenced by 
postmark, electronic marker or other objective date mark) after the 
date of the original hearing request;
    (2) Explain why the testimony or evidence is directly relevant and 
material to the issues in the case; and
    (3) Establish that a subpoena is the best method or opportunity to 
obtain such evidence because there are no other means by which the 
documents or testimony could have been obtained.
    (c) No subpoena will be issued for attendance of employees or 
contractors of OWCP or NIOSH acting in their official capacities as 
decision-makers or policy administrators. For hearings taking the form 
of a review of the written record, no subpoena for the appearance of 
witnesses will be considered.
    (d) The FAB reviewer will issue the subpoena under his or her own 
name. It may be served in person or by certified mail, return receipt 
requested, addressed to the person to be served at his or her last 
known principal place of business or residence. A decision to deny a 
subpoena requested by a claimant can only be challenged as part of a 
request for reconsideration of any adverse decision of the FAB which 
results from the hearing.


Sec.  30.302  Who pays the costs associated with subpoenas?

    (a) Witnesses who are not employees or former employees of the 
federal government shall be paid the same fees and mileage as paid for 
like services in the District Court of the United States where the 
subpoena is returnable, except that expert witnesses shall be paid a 
fee not to exceed the local customary fee for such services.
    (b) Where OWCP asked that the witness submit evidence into the case 
record or asked that the witness attend, OWCP shall pay the fees and 
mileage. Where the claimant asked for the subpoena, and where the 
witness submitted evidence into the record at the request of the 
claimant, the claimant shall pay the fees and mileage.


Sec.  30.303  What information may OWCP request in connection with a 
claim under Part E of EEOICPA?

    At any time during the course of development of a claim for 
benefits under Part E, OWCP may determine that it needs relevant 
information to adjudicate the claim. When this occurs, and at the 
request of OWCP, DOE and/or any contractor who employed a Department of 
Energy contractor employee must provide to OWCP information or 
documents in response to the request in connection with a claim under 
Part E of EEOICPA.
    (a) The party to whom the request is made must respond to OWCP 
within 90 days of the request with either:
    (1) The requested information or documents; or
    (2) A sworn statement that a good faith search for the requested 
information or documents was conducted, and that the information or 
documents could not be located.
    (b) DOE and/or the DOE contractor who employed a Department of 
Energy contractor employee must query third parties under its control 
to acquire the requested information or documents.

[[Page 78549]]

    (c) In providing the requested information or documents, DOE and/or 
the DOE contractor who employed a DOE contractor employee must preserve 
the current organization of the requested information or documents, and 
must provide such description and indexing of the requested information 
or documents as OWCP considers appropriate to facilitate their use by 
OWCP.
    (d) Information or document requests may include, but are not 
limited to, requests for records, files and other data, whether paper, 
electronic, imaged or otherwise, developed, acquired or maintained by 
DOE or the DOE contractor who employed a DOE contractor employee. Such 
information or documents may include records, files and data on 
facility industrial hygiene, employment of individuals or groups, 
exposure and medical records, and claims applications.

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 when it evaluates the medical evidence and 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 and to the claimant's designated 
representative before OWCP, if any. 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).


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

[[Page 78550]]

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 time and place of the hearing, but such requests should be made at 
the time that the hearing is requested. Scheduling is at the discretion 
of the FAB, and is not reviewable. In most instances, once the hearing 
has been 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). If a 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 or the representative appointed by the 
claimant in accordance with Sec.  30.600 of this part has a medical 
reason that prevents attendance at the hearing, or where the death or 
illness of the claimant's parent , spouse, or child prevents the 
claimant from attending the hearing as scheduled, a postponement may be 
granted in the discretion of the FAB if the claimant or the 
representative provides at least 24 hours notice and a reasonable 
explanation supporting his or her inability to attend the scheduled 
hearing.
    (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 described in 
Sec.  30.310(a), or the date the Director reopened the claim for 
issuance of a new final decision pursuant to Sec.  30.320(a), 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 last known address and to the claimant's designated 
representative before OWCP, if any. 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 return 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 
return the claim to the district office for further development and/or 
issuance of a newly recommended decision without issuing a final 
decision, whether or not requested to do so by the claimant.


Sec.  30.318  Can the FAB consider objections to HHS's reconstruction 
of a radiation dose or to the guidelines OWCP uses to determine if a 
claimed cancer was at least as likely as not related to employment?

    (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 returned 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 objections concerning the 
application of that methodology should be considered by HHS and may 
return the case to the district office for referral to HHS for such 
consideration.
    (c) The methodology that OWCP uses to determine if a claimed cancer 
was at least as likely as not related to employment at a DOE facility, 
an atomic weapons employer facility, or a RECA section 5 facility, 
established by

[[Page 78551]]

regulations issued by HHS at 42 CFR part 81, is also binding on the FAB 
(see Sec.  30.213). However, since OWCP applies this methodology when 
it makes these determinations, the FAB reviewer may consider objections 
to the manner in which OWCP applied HHS's regulatory guidelines.


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) A hearing is not available as part of the reconsideration 
process. 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 new final decision that is issued after the 
FAB grants a request for reconsideration will be ``final'' upon the 
date of issuance of such new decision.
    (1) Instead of issuing a new final decision after granting a 
request for reconsideration, the FAB may return the claim to the 
district office for further development as provided in Sec.  30.317.
    (2) If the FAB denies the request for reconsideration, the FAB 
decision that formed the basis for the request will be considered 
``final'' upon the date the request is denied, and no further requests 
for reconsideration of that particular final decision of the FAB will 
be entertained.
    (d) A claimant may not seek judicial review of a decision on his or 
her claim under EEOICPA until OWCP's decision on the claim is final 
pursuant to either Sec.  30.316(d) (for claims in which no request for 
reconsideration was filed with the FAB) or paragraph (c) of this 
section (for claims in which a request for reconsideration was filed 
with the FAB).

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 FAB for issuance of a new final decision, or 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 a toxic substance, or 
identifies either a change in the PoC 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 and returns it to the district office, 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 treatment?

    (a) A covered Part B employee or a covered Part E employee who fits 
into at least one of the compensable claim categories described in 
subpart C of this part 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 or covered illness, retroactive to the date the 
claim for benefits for that occupational illness or covered illness 
under Part B or Part E of EEOICPA was filed. In situations where the 
occupational illness or covered illness is a secondary cancer, such 
treatment may include treatment of the underlying primary cancer when 
it is medically necessary or related to treatment of the secondary 
cancer; however, payment for medical treatment of the underlying 
primary cancer under these circumstances does not constitute a 
determination by OWCP that the primary cancer is a covered illness 
under Part E of EEOICPA. The employee need not be disabled to receive 
such treatment. When a survivor receives payment, OWCP will pay for 
such treatment if the 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 or covered illness, the 
employee should consult OWCP prior to obtaining it.
    (b) If a claimant disagrees with the decision of OWCP that medical 
benefits provided under paragraph (a) of this section are not necessary 
to treat an occupational illness or covered illness, he or she may 
choose to utilize the adjudicatory process described in subpart D of 
this part.
    (c) Any qualified physician or qualified hospital may provide 
medical services, appliances and supplies to the covered Part B 
employee or the covered Part E employee. A qualified provider of 
medical support services may also furnish appropriate services, 
appliances, and supplies. OWCP may apply a test of cost-effectiveness 
when it decides if appliances and supplies are necessary to treat an 
occupational illness or covered illness. With respect to prescribed 
medications, OWCP may require the use of generic equivalents where they 
are available.


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

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

[[Page 78552]]

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


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

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


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

    OWCP will authorize payment for personal care services under 
section 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. If a claimant 
disagrees with the decision of OWCP that personal care services are not 
medically necessary, he or she may utilize the adjudicatory process 
described in subpart D of this part.


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

    (a) The employee is entitled to reimbursement for reasonable and 
necessary expenses, including transportation, incident to obtaining 
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 authorization 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, and are incident to 
obtaining authorized medical services, appliances or supplies. 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) If a claimant disagrees with the decision of OWCP that 
requested travel expenses are either not reasonable or necessary, or 
are not incident to obtaining authorized medical services, appliances 
or supplies, he or she may utilize the adjudicatory process described 
in subpart D of this part.
    (d) The standard form designated for medical travel refund requests 
is Form OWCP-957 and must 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 or 
a covered 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 or covered 
illnesses covered by EEOICPA, or the need for a new physician when an 
employee has moved.
    (c) If a claimant disagrees with the decision of OWCP that 
insufficient reasons for a change of physician have been submitted, he 
or she may utilize the adjudicatory process described in subpart D of 
this part.


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 who conforms to the standards regarding conflicts of interest 
adopted by OWCP as often and at such times and places as OWCP considers 
reasonably necessary. Also, OWCP may send a case file for second 
opinion review to a qualified physician who conforms to the standards 
regarding conflicts of interest adopted by OWCP 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 who conforms to the standards regarding conflicts 
of interest adopted by OWCP. 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 than the 
other, OWCP will base its determination of coverage on the medical 
opinion with the greatest probative value. A difference in medical 
opinion sufficient to be considered a conflict only 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 a second opinion 
physician, an OWCP medical adviser or consultant, or a physician 
submitting an impairment evaluation that meets the criteria set out in 
Sec.  30.905 of this part, OWCP shall appoint a third physician who 
conforms to the standards regarding conflicts of interest adopted by 
OWCP to make an examination or an impairment evaluation. This is called 
a referee examination or a referee impairment evaluation. 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 to a physician who conforms to the standards regarding conflicts 
of interest adopted by OWCP for a referee medical review

[[Page 78553]]

where there is no need for an actual examination, or where the employee 
is deceased.
    (c) If the initial referee examination or referee impairment 
evaluation is disrupted by someone accompanying the employee, OWCP will 
schedule another examination or impairment evaluation with a different 
qualified physician who conforms to the standards regarding conflicts 
of interest adopted by OWCP. The employee will not be entitled to have 
anyone else present at the subsequent referee examination or referee 
impairment evaluation 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 for all necessary and 
reasonable expenses incident to such an examination, including 
transportation costs and actual wages the employee 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 or covered illness;
    (h) The treatment given or recommended for the claimed occupational 
illness or covered 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 Form EE-7 as a guide for the preparation of 
his or her initial medical report in support of a claim under Part B 
and/or Part E of EEOICPA. 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 or covered 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 occupational illness or covered illness.

Medical Bills


Sec.  30.420  How should medical bills and reimbursement requests be 
submitted?

    Usually, medical providers submit their bills directly for 
processing. The rules for submitting and processing provider bills and 
reimbursement requests are stated in subpart H of this part. An 
employee requesting reimbursement for out-of-pocket medical expenses 
must submit a Form OWCP-915 and meet the requirements described in 
Sec.  30.702.


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

    To be considered for payment, bills and reimbursement requests 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 under subpart D of 
this part, whichever is later.


Sec.  30.422  If an employee is only partially reimbursed 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 out-of-pocket 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, the employee will be advised 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 that the employee paid, but not 
the employee, 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 EEOICPA?

    (a) For the purposes of paying compensation to survivors under both 
Parts B and E of EEOICPA, OWCP will use the following definitions:
    (1) Surviving spouse means the wife or husband of a deceased 
covered Part B employee or deceased covered Part E employee who was 
married to that individual for the 365 consecutive days immediately 
prior to the death of that individual.
    (2) Child or children includes a recognized natural child of a 
deceased covered Part B employee or deceased covered Part E employee, a 
stepchild who lived with that individual in a regular parent-child 
relationship, and an adopted child of that individual. However, to be a 
``covered'' child under Part E only, such child must have been, as of 
the date of the deceased covered Part E employee's death, either under 
the age of 18 years, or under the age of 23 years and a full-time 
student who was continuously enrolled in one or more educational 
institutions since attaining the age of 18 years, or any age and 
incapable of self-support.
    (b) For the purposes of paying compensation to survivors only under 
Part B of EEOICPA, OWCP will use the following additional definitions:
    (1) Parent includes fathers and mothers of a deceased covered Part 
B employee through adoption.
    (2) Grandchild means a child of a child of a deceased covered Part 
B employee.
    (3) Grandparent means a parent of a parent of a deceased covered 
Part B employee.

[[Page 78554]]

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

    (a) Under Part B of the Act, if OWCP determines that a survivor or 
survivors are entitled to receive compensation under EEOICPA because a 
covered Part B 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(gg)(3) of these 
regulations:
    (1) If there is a surviving spouse, the compensation shall be paid 
to that individual.
    (2) If there is no surviving spouse, the compensation shall be paid 
in equal shares to all children of the deceased covered Part B 
employee.
    (3) If there is no surviving spouse and no children, the 
compensation shall be paid in equal shares to the parents of the 
deceased covered Part B employee.
    (4) 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 Part B employee.
    (5) 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 Part B employee.
    (6) Notwithstanding paragraphs (a)(1) through (a)(5) of this 
section, if there is a surviving spouse and at least one child of the 
deceased covered Part B 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 Part B employee 
who is a minor at the time of payment.
    (b) Under Part E of the Act, if OWCP determines that a survivor or 
survivors are entitled to receive compensation under EEOICPA because a 
covered Part E 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(gg)(3) of these 
regulations:
    (1) If there is a surviving spouse, the compensation shall be paid 
to that individual.
    (2) If there is no surviving spouse, the compensation shall be paid 
in equal shares to all ``covered'' children of the deceased covered 
Part E employee.
    (3) Notwithstanding paragraphs (b)(1) and (b)(2) of this section, 
if there is a surviving spouse and at least one ``covered'' child of 
the deceased covered Part E employee who is living at the time of 
payment and who is not a recognized natural child or adopted child of 
such surviving spouse, then half of such payment shall be made to such 
surviving spouse, and the other half of such payment shall be made in 
equal shares to each ``covered'' child of the employee who is living at 
the time of payment.


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

    Entitlement to any lump-sum payment for survivors under EEOICPA, 
other than for ``covered'' children under Part E, will be determined as 
of the time OWCP makes such a payment. As noted in Sec.  30.500(a)(2) 
of these regulations, a child of a deceased Part E employee will only 
qualify as a ``covered'' child of that individual if he or she 
satisfied one of the additional statutory criteria for a ``covered'' 
child as of the date of the deceased Part E employee's death.

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, whether in whole or 
in part, OWCP shall take all necessary steps to determine the amount of 
any offset or coordination of EEOICPA benefits before paying any 
benefits, and to verify the identity of the covered Part B employee, 
the covered Part E 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 under Part B of the Act 
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 document or record or to provide access to 
information, such failure or refusal may be deemed to be a rejection of 
the 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 Part B employee, covered Part E 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 seeking damages. Even if someone 
other than the covered Part B employee or the covered Part E employee 
receives a payment pursuant to a final judgment or settlement in 
litigation seeking damages (e.g., the surviving spouse of a deceased 
covered Part B employee or a deceased covered Part E employee), the 
receipt of any such payment must be reported.
    (1) For the purposes of this paragraph (b) only, ``litigation 
seeking damages'' refers to any request or demand for money (other than 
for workers' compensation) by the covered Part B employee or the 
covered Part E employee, or by another individual if the covered Part B 
employee or the covered Part E employee is deceased, made or sought in 
a civil action or in anticipation of the filing of a civil action, for 
injuries incurred on account of an exposure for which compensation is 
payable under 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 Part B employee or the covered 
Part E 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 Part B employee or the covered Part E employee 
(or the estate of a deceased covered Part B employee or deceased 
covered Part E employee) not for injuries incurred on account of an 
exposure for which compensation is payable under the EEOICPA (e.g., a 
covered Part B employee's or a covered Part E 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 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 (excluding 
contingent awards) and any medical expenses for treatment provided on 
or after the date the covered Part B employee or the covered

[[Page 78555]]

Part E 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 payable in the future 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 payments first. If the amount to be 
subtracted exceeds the lump-sum payments, 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 Part B employee or the covered 
Part E 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 had his or her award under section 5 of RECA reduced 
by the full amount of the payment made pursuant to a final judgment or 
settlement in litigation seeking damages. It will also not occur if an 
EEOICPA claimant's prior payment of EEOICPA benefits, or his or her 
workers' compensation benefits, were offset to reflect the full amount 
of the payment made pursuant to a final judgment or settlement in 
litigation seeking damages. However, if the prior reduction or offset 
of the above benefits did not reflect the full amount of the payment 
made pursuant to a final judgment or settlement in litigation seeking 
damages, OWCP will reduce currently payable 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, every duly appointed 
guardian or conservator of a claimant, or every person with power of 
attorney for a claimant, and require such person or persons to complete 
a Form EN-20 providing payment information. 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. If the claimant dies before the payment is 
received, the person who 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.
    (d) The total amount of compensation (other than medical benefits) 
under Part E that can be paid to all claimants as a result of the 
exposure of a covered Part E employee shall not be more than $250,000 
in any circumstances.


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

    (a) Except with respect to claims under Part B of the Act for 
beryllium sensitivity, payment shall be made to the covered Part B 
employee or the covered Part E employee, to the duly appointed guardian 
or conservator of that individual, or to the person with power of 
attorney for that individual, unless the covered Part B employee or 
covered Part E employee is deceased at the time of the payment. In all 
cases involving a deceased covered Part B employee or deceased covered 
Part E employee, payment shall be made to the eligible surviving 
beneficiary or beneficiaries, to the duly appointed guardian or 
conservator of 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), 7384u(e), and 7385s-3(c) and (d) of EEOICPA.
    (b) Under Part B of the Act, compensation for any consequential 
injury, illness, impairment or disease is limited to payment of medical 
benefits for that injury, illness, impairment or disease. Under Part E 
of the Act, compensation for any consequential injury, illness, 
impairment or disease consists of medical benefits for that injury, 
illness, impairment or disease, as well as any additional monetary 
benefits that are consistent with the terms of Sec.  30.505(d).
    (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 Part B employee may receive more than one lump-sum 
payment under Part B of EEOICPA for any occupational illnesses he or 
she contracted. However, any individual, including a covered Part B 
employee who has received a lump-sum payment for his or her own 
occupational illness or illnesses, may receive one lump-sum payment for 
each deceased covered Part B employee for whom he or she qualifies as 
an eligible surviving beneficiary under Part B of the Act.


Sec.  30.507  What compensation will be provided to covered Part B 
employees who only establish beryllium sensitivity under Part B of 
EEOICPA?

    The establishment of beryllium sensitivity does not entitle a 
covered Part B employee, or the eligible surviving beneficiary or 
beneficiaries of a deceased covered Part B employee, to any lump-sum 
payment provided for under Part B. Instead, a covered Part B employee 
whose sole accepted 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 
Part B employee's beryllium sensitivity. Monitoring shall also include 
regular medical examinations, with diagnostic testing, to determine if 
the covered Part B employee has established chronic beryllium disease.

[[Page 78556]]

Sec.  30.509  Under what circumstances may a survivor claiming under 
Part E of the Act choose to receive the benefits that would otherwise 
be payable to a covered Part E employee who is deceased?

    (a) If a covered Part E employee dies after filing a claim but 
before monetary benefits are paid under Part E of the Act, and his or 
her death is from a cause other than a covered illness, his or her 
survivor can choose to receive either the survivor benefits payable on 
account of the death of that covered Part E employee, or the monetary 
benefits that would otherwise have been payable to the covered Part E 
employee.
    (b) For the purposes of this section only, a death ``from a cause 
other than a covered illness'' refers only to a death that was solely 
caused by a non-covered illness or illnesses. Therefore, the choice 
referred to in paragraph (a) of this section will not be available if a 
covered illness contributed to the death of the covered Part E employee 
in any manner. In those instances, survivor benefits will still be 
payable to the claimant, but he or she cannot choose to receive the 
monetary benefits that would have otherwise been payable to the 
deceased covered Part E employee in lieu of survivor benefits.
    (c) OWCP only makes impairment determinations based on rationalized 
medical evidence in the case file that is sufficiently detailed and 
meets the various requirements for the many different types of 
impairment determinations possible under the AMA's Guides. Therefore, 
OWCP will only make an impairment determination for a deceased covered 
Part E employee pursuant to this section if the medical evidence of 
record is sufficient to satisfy the pertinent requirements in the AMA's 
Guides and subpart J of this part.

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 recipient 
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 EEOICPA?

    An ``overpayment'' is any amount of compensation paid under 
sections 7384s, 7384t, 7384u, 7385s-2 or 7385s-3 of the EEOICPA to a 
recipient that constitutes, as of the time OWCP makes such payment:
    (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  What does OWCP do when an overpayment is identified?

    Before seeking to recover an overpayment or adjust benefits, OWCP 
will advise the recipient of the overpayment in writing that:
    (a) The overpayment exists, and the amount of overpayment;
    (b) A preliminary finding shows either that the recipient was or 
was not at fault in the creation of the overpayment;
    (c) He or she has the right to inspect and copy OWCP records 
relating to the overpayment; and
    (d) He or she has the right to present written evidence which 
challenges the fact or amount of the overpayment, and/or challenges the 
preliminary finding that he or she was at fault in the creation of the 
overpayment. He or she may also request that recovery of the 
overpayment be waived. Any submission of evidence or request that 
recovery of the overpayment be waived must be presented to OWCP within 
30 days of the date of the written notice of overpayment.


Sec.  30.513  Under what circumstances may OWCP waive recovery of an 
overpayment?

    (a) OWCP may consider waiving recovery of an overpayment only if 
the recipient was not at fault in accepting or creating the 
overpayment. Recipients of benefits paid under EEOICPA are responsible 
for taking all reasonable measures to ensure that payments received 
from OWCP are proper. The recipient must show good faith and exercise a 
high degree of care in reporting events which may affect entitlement to 
or the amount of benefits. A recipient who has done any of the 
following will be found to be at fault with respect to creating an 
overpayment:
    (1) Made an incorrect statement as to a material fact which he or 
she knew or should have known to be incorrect; or
    (2) Failed to provide information which he or she knew or should 
have known to be material; or
    (3) Accepted a payment which he or she knew or should have known to 
be incorrect. (This provision applies only to the overpaid individual.)
    (b) Whether or not OWCP determines that a recipient was at fault 
with respect to the creation of an overpayment depends on the 
circumstances surrounding the overpayment. The degree of care expected 
may vary with the complexity of those circumstances and the recipient's 
capacity to realize that he or she is being overpaid.


Sec.  30.514  If OWCP finds that the recipient of an overpayment was 
not at fault, what criteria are used to decide whether to waive 
recovery of it?

    If OWCP finds that the recipient of an overpayment was not at 
fault, repayment will still be required unless:
    (a) Adjustment or recovery of the overpayment would defeat the 
purpose of the Act (see Sec.  30.516); or
    (b) Adjustment or recovery of the overpayment would be against 
equity and good conscience (see Sec.  30.517).


Sec.  30.515  Is a recipient responsible for an overpayment that 
resulted from an error made by OWCP?

    (a) The fact that OWCP may have erred in making the overpayment 
does not by itself relieve the recipient of the overpayment from 
liability for repayment if the recipient also was at fault in accepting 
the overpayment.
    (b) However, OWCP may find that the recipient was not at fault if 
failure to report an event affecting compensation benefits, or 
acceptance of an incorrect payment, occurred because:
    (1) The recipient relied on misinformation given in writing by OWCP 
regarding the interpretation of a pertinent provision or EEOICPA of 
this part; or
    (2) OWCP erred in calculating either the percentage of impairment 
or wage-loss under Part E of EEOICPA.


Sec.  30.516  Under what circumstances would recovery of an overpayment 
defeat the purpose of the Act?

    Recovery of an overpayment will defeat the purpose of the Act if 
such recovery would cause hardship to the recipient because:
    (a) The recipient from whom OWCP seeks recovery needs substantially 
all of his or her current income to meet current ordinary and necessary 
living expenses; and
    (b) The recipient's assets do not exceed two months' expenditures 
as determined by OWCP using the Bureau of Labor Statistics Consumer 
Expenditure Survey tables.

[[Page 78557]]

Sec.  30.517  Under what circumstances would recovery of an overpayment 
be against equity and good conscience?

    (a) Recovery of an overpayment is considered to be against equity 
and good conscience when the recipient would experience severe 
financial hardship in attempting to repay the debt.
    (b) Recovery of an overpayment is also considered to be against 
equity and good conscience when the recipient, in reliance on such 
payments or on notice that such payments would be made, gives up a 
valuable right or changes his or her position for the worse. In making 
such a decision, OWCP does not consider the recipient's current ability 
to repay the overpayment.
    (1) To establish that a valuable right has been relinquished, it 
must be shown that the right was in fact valuable, that it cannot be 
regained, and that the action was based chiefly or solely in reliance 
on the payments or on the notice of payment. Gratuitous transfers of 
funds to other individuals are not considered relinquishments of 
valuable rights.
    (2) To establish that a recipient's position has changed for the 
worse, it must be shown that the decision made would not otherwise have 
been made but for the receipt of benefits, and that this decision 
resulted in a loss.


Sec.  30.518  Can OWCP require the recipient of the overpayment to 
submit additional financial information?

    (a) The recipient of the overpayment is responsible for providing 
information about income, expenses and assets as specified by OWCP. 
This information is needed to determine whether or not recovery of an 
overpayment would defeat the purpose of the Act, or would be against 
equity and good conscience. This information will also be used to 
determine the repayment schedule, if necessary.
    (b) Failure to submit this requested information within 30 days of 
the request shall result in denial of waiver, and no further request 
for waiver shall be considered until the requested information is 
furnished.


Sec.  30.519  How does OWCP communicate its final decision concerning 
recovery of an overpayment?

    (a) After considering any written documentation or argument 
submitted to OWCP within the 30-day period set out in Sec.  30.512(d), 
OWCP will issue a final decision on the overpayment. OWCP will send a 
copy of the final decision to the individual from whom recovery is 
sought and his or her representative, if any.
    (b) The provisions of subpart D of this part do not apply to any 
decision regarding the recovery of an overpayment.


Sec.  30.520  How are overpayments collected?

    (a) When an overpayment has been made to a recipient who is 
entitled to further payments, the recipient shall refund to OWCP the 
amount of the overpayment as soon as the error is discovered or his or 
her attention is called to same. If no refund is made, OWCP shall 
recover the overpayment by reducing any further lump-sum payments due 
currently or in the future, taking into account the financial 
circumstances of the recipient, and any other relevant factors, so as 
to minimize any hardship. Should the recipient die before collection 
has been completed, further collection shall be made by decreasing 
later payments, if any, payable under EEOICPA with respect to the 
underlying occupational illness or covered illness.
    (b) When an overpayment has been made to a recipient and OWCP is 
unable to recover the overpayment by reducing compensation due 
currently, the recipient shall refund to OWCP the amount of the 
overpayment as soon as the error is discovered or his or her attention 
is called to same. 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 recipient fails to make such refund, OWCP may recover the 
overpayment 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). For the purposes 
of paragraph (b) of this section, a ``representative'' does not include 
a person who only has a power of attorney to act on behalf of a 
claimant.
    (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 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 EN-
20, described in Sec.  30.505(c) of these regulations, which collects 
information necessary for issuance 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 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 a claim pending 
before OWCP, more than the percentages of the lump-sum

[[Page 78558]]

payment made to the claimant set out in paragraph (b) of this section.
    (b) The percentages referred to in paragraph (a) of this section 
are:
    (1) 2 percent for the filing of an initial claim with OWCP, 
provided that the representative was retained prior to the filing of 
the initial claim; plus
    (2) 10 percent of the difference between the lump-sum payment made 
to the claimant and the amount proposed in the recommended decision 
with respect to objections to a recommended decision.
    (c)(1) Any representative who violates this section shall be fined 
not more than $5,000.
    (2) The authority to prosecute violations of this limitation lies 
with the Department of Justice.
    (d) The fee limitations described in this section shall not apply 
with respect to representative services that are rendered in connection 
with a petition filed with a U.S. District Court seeking review of an 
OWCP decision that is final pursuant to Sec.  30.316(d), or with 
respect to any subsequent appeal in such a proceeding.

Third Party Liability


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

    If an occupational illness or covered illness for which 
compensation is payable under 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, an atomic weapons employer or a RECA section 5 mine or mill, 
the United States is subrogated for the full amount of any payment of 
compensation under 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 occupational illness or covered 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 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 a 
covered Part B employee, a covered Part E employee or an eligible 
surviving beneficiary, less charges for any medical file review (i.e., 
the physician did not examine the employee) done at the request of 
OWCP. Charges for medical examinations also may be subtracted if the 
covered Part B employee, covered Part E employee or an eligible 
surviving beneficiary establishes that the examinations were required 
to be made available to the covered Part B employee or covered Part E 
employee under a statute other than EEOICPA.


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

    Since an injury caused by medical malpractice in treating an 
occupational illness or covered illness compensable under EEOICPA is 
also covered under 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 a covered Part B employee, a covered Part 
E employee or an 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 a covered Part B employee, a covered 
Part E employee or an 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 
occupational illness or covered illness compensable under 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 EEOICPA will be treated as a separate injury.
    (b) If an illness covered under 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 Part B of EEOICPA?

    (a) A tort suit (other than an administrative or judicial 
proceeding for workers' compensation) that includes a claim arising out 
of a covered Part B employee's employment-related exposure to beryllium 
or radiation, filed against a beryllium vendor or an atomic weapons 
employer, by a covered Part B employee or an eligible surviving 
beneficiary or beneficiaries of a deceased covered Part B employee, 
will disqualify that otherwise eligible individual or individuals from 
receiving benefits under Part B of EEOICPA unless such claim is 
terminated in accordance with the requirements of Sec. Sec.  30.616 
through 30.619 of these regulations.
    (b) The term ``claim arising out of a covered Part B employee's 
employment-related exposure to beryllium or radiation'' used in 
paragraph (a) of this section includes a claim that is

[[Page 78559]]

derivative of a covered Part B employee's employment-related exposure 
to beryllium or radiation, such as a claim for loss of consortium 
raised by a covered Part B employee's spouse.
    (c) If all claims arising out of a covered Part B employee's 
employment-related exposure to beryllium or radiation are terminated in 
accordance with the requirements of Sec. Sec.  30.616 through 30.619 of 
these regulations, proceeding with the remaining portion of the tort 
suit filed against a beryllium vendor or an atomic weapons employer 
will not disqualify an otherwise eligible individual or individuals 
from receiving benefits under Part B of EEOICPA.


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 benefits under 
Part B of EEOICPA unless they dismissed all claims arising out of a 
covered Part B employee's employment-related exposure to beryllium or 
radiation that were included in 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 benefits under Part B 
of EEOICPA unless they dismiss all claims arising out of a covered Part 
B employee's employment-related exposure to beryllium or radiation that 
are included in the tort suit on or before the last permissible date 
described in paragraph (b) of this section.
    (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 Part B 
employee may be connected to his or her exposure to beryllium or 
radiation covered by 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 was filed after 
December 28, 2001?

    (a) If a tort suit described in Sec.  30.615 was filed after 
December 28, 2001, the claimant or claimants will be disqualified from 
receiving any benefits under Part B of EEOICPA if a judgment is entered 
against them.
    (b) If a tort suit described in Sec.  30.615 was filed after 
December 28, 2001 and a judgment has not yet been entered against the 
claimant or claimants, they will also be disqualified from receiving 
any benefits under Part B of EEOICPA unless, prior to entry of any 
judgment, they dismiss all claims arising out of a covered Part B 
employee's employment-related exposure to beryllium or radiation that 
are included in 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 Part B 
employee may be connected to his or her exposure to beryllium or 
radiation covered by 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 Part B employee and his or her spouse, with the covered Part B 
employee claiming for chronic beryllium disease and the spouse claiming 
for loss of consortium due to the covered Part B employee's exposure to 
beryllium. However, since the spouse of a living covered Part B 
employee could not be an eligible surviving beneficiary under Part B of 
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 Part B employee and other family members (such as children of 
the deceased covered part B employee). In this case, the spouse would 
be the only eligible surviving beneficiary of the deceased covered Part 
B employee under Part B of 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 Part B of EEOICPA?

    Prior to authorizing payment on a claim under Part B of EEOICPA, 
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 that included a claim 
arising out of a covered Part B employee's employment-related exposure 
to beryllium or radiation, 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.

Coordination of Part E Benefits With State Workers' Compensation 
Benefits


Sec.  30.625  What does ``coordination of benefits'' mean under Part E 
of EEOICPA?

    In general, ``coordination of benefits'' under Part E of the Act 
occurs when compensation to be received under Part E is reduced by 
OWCP, pursuant to section 7385s-11 of EEOICPA, to reflect certain 
benefits the beneficiary receives under a state workers' compensation 
program for the same covered illness.


Sec.  30.626  How will OWCP coordinate compensation payable under Part 
E of EEOICPA with benefits from state workers' compensation programs?

    (a) OWCP will reduce the compensation payable under Part E by the 
amount of benefits the claimant receives from a state workers' 
compensation program by reason of the same covered illness, after 
deducting the reasonable costs to the claimant of obtaining those 
benefits.
    (b) To determine the amount of any reduction of EEOICPA 
compensation, OWCP shall require the covered Part E employee or each 
eligible surviving beneficiary filing a claim under Part E to execute 
and provide affidavits reporting the amount of any benefit received 
pursuant to a claim filed in a state workers' compensation program for 
the same covered illness.

[[Page 78560]]

    (c) If a covered Part E employee or a survivor of such employee 
receives benefits through a state workers' compensation program 
pursuant to a claim for the same covered illness, OWCP shall reduce a 
portion of the dollar amount of such state workers' benefit from the 
compensation payable under Part E. OWCP will calculate the net amount 
of the state workers' compensation benefit amount to be subtracted from 
the compensation payment under Part E in the following manner:
    (1) OWCP will first determine the dollar value of the benefits 
received by that individual from a state workers' compensation program 
by including all benefits, other than medical and vocational 
rehabilitation benefits, received for the same covered illness or 
injury sustained as a consequence of a covered illness.
    (2) OWCP will then make certain deductions from the above dollar 
benefit received under a state workers' compensation program to arrive 
at the dollar amount that will be subtracted from any compensation 
payable under Part E of EEOICPA.
    (i) Allowable deductions consist of reasonable costs in obtaining 
state workers' compensation benefits incurred by that individual, 
including but not limited to 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, travel expenses, 
witness fees, and court reporter costs for transcripts), provided that 
adequate supporting documentation is submitted to OWCP for its 
consideration.
    (ii) The EEOICPA benefits that will be reduced will consist of any 
unpaid monetary payments payable in the future and medical benefits 
payable in the future. In those cases where it has not yet paid EEOICPA 
benefits under Part E, OWCP will reduce such benefits on a dollar-for-
dollar basis, beginning with the current monetary payments first. If 
the amount to be subtracted exceeds the monetary payments currently 
payable, 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 
Part E employee for any ongoing EEOICPA medical treatment to the 
remaining surplus until it is absorbed (or until further monetary 
benefits become payable that are sufficient to absorb the surplus).
    (3) The above coordination of benefits will not occur if the 
beneficiary under a state workers' compensation program receives state 
workers' compensation benefits for both a covered and a non-covered 
illness arising out of and in the course of the same work-related 
incident.


Sec.  30.627  Under what circumstances will OWCP waive the statutory 
requirement to coordinate these benefits?

    A waiver to the requirement to coordinate Part E benefits with 
benefits paid under a state workers' compensation program may be 
granted if OWCP determines that the administrative costs and burdens of 
coordinating benefits in a particular case or class of cases justifies 
the waiver. This decision is exclusively within the discretion of OWCP.

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 EEOICPA so they can supply OWCP with a history of the claimed 
occupational illness or covered illness, a description of the nature 
and extent of the claimed occupational illness or covered illness, the 
results of any diagnostic studies performed, and the nature of the 
treatment rendered. This requirement terminates after a provider has 
supplied OWCP with the above-noted information, and otherwise 
terminates ten years after the record was created.


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-04 or UB-04 (for hospitals), an electronic or paper-based bill 
that includes required data elements (for pharmacies), or other form as 
warranted, and submit the form or bill promptly for processing.
    (b) The provider shall identify each service performed using the 
Physician's Current Procedural Terminology (CPT) code, the Healthcare 
Common Procedure Coding System (HCPCS) code, the National Drug Code 
(NDC) number, 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) For professional charges billed on Form OWCP-1500 or CMS-1500, 
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-04 or UB-04. The provider 
shall identify each outpatient radiology service, outpatient pathology 
service and physical therapy service performed, using HCPCS/CPT codes 
with a brief narrative description. The charge for each individual 
service, or the total charge for all identical services, should also 
appear on the form.
    (ii) Other outpatient hospital services for which HCPCS/CPT codes 
exist shall also be coded individually using the coding scheme noted in 
this section. Services for which there are no HCPCS/CPT codes available 
can be presented using the RCCs described in the ``National Uniform 
Billing Data Elements Specifications,'' current edition. The provider 
shall also furnish the diagnostic code using the ICD-9-CM. If the 
outpatient hospital services include surgical and/or invasive 
procedures, the provider shall code each procedure using the proper 
HCPCS/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 electronic or paper-based bills and submit 
them promptly for processing. Bills for prescription medications must 
include all required data elements, including the NDC number assigned 
to the product, the generic or trade name of the drug provided, the 
prescription number, the quantity provided, and the date the 
prescription was filled.
    (3) Nursing homes shall itemize charges for appliances, supplies or 
services on the provider's billhead stationery and submit them promptly 
for processing.
    (d) By submitting a bill and/or accepting payment, the provider 
signifies that the service for which payment 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

[[Page 78561]]

payment 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-04 or UB-04 (for 
hospitals), or an electronic or paper-based bill that includes required 
data elements (for pharmacies); contain the signature or signature 
stamp of the provider; and identify the procedures using HCPCS/CPT 
codes, RCCs, or NDC numbers. Otherwise, the bill may be returned to the 
provider for correction and resubmission. The decision of OWCP whether 
to pay a provider's bill is final when issued and is not subject to the 
adjudicatory process described in subpart D of this part.


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 provided by a professional due to an 
occupational illness or a covered illness, he or she must submit a 
request for reimbursement on Form OWCP-915, together with an itemized 
bill on Form OWCP-1500 or CMS-1500 prepared by the provider and a 
medical report as provided in Sec.  30.700, for consideration.
    (1) The provider of such service shall state each diagnosed 
condition and furnish the applicable ICD-9-CM code and identify each 
service performed using the applicable HCPCS/CPT code, with a brief 
narrative description of the service performed, or, where no code is 
applicable, a detailed description of that service.
    (2) The reimbursement request 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 for 
which the employee paid, the employee must also use Form OWCP-915 to 
request reimbursement and should submit the request in accordance with 
the provisions of Sec.  30.701(a). Any such request for reimbursement 
must be accompanied by evidence, as described in paragraph (a)(2) 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 and 
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. The decision of OWCP whether to reimburse an employee for 
out-of-pocket medical expenses, and the amount of any reimbursement, is 
final when issued and is not subject to the adjudicatory process 
described in subpart D of this part.
    (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, the employee will be advised 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 that the employee paid, but not the employee, 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 disputed 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 or 
covered illnesses shall not exceed a maximum allowable charge for such 
service as determined by OWCP, except as provided in this section.
    (b) The schedule of maximum allowable charges does not apply to 
charges for services provided in nursing homes, but it does apply to 
charges for treatment furnished in a nursing home by a physician or 
other medical professional.
    (c) The schedule of maximum allowable charges also does not apply 
to charges for appliances, supplies, services or treatment furnished by 
medical facilities of the U.S. Public Health Service or the Departments 
of the Army, Navy, Air Force and Veterans Affairs.


Sec.  30.706  How are the maximum fees defined?

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


Sec.  30.707  How are payments for particular services calculated?

    Payment for a procedure identified by a HCPCS/CPT code shall not 
exceed the amount derived by multiplying the relative values for that 
procedure by the geographic indices for services in that area and by 
the dollar amount assigned to one unit in that category of service.
    (a) The ``locality'' which serves as a basis for the determination 
of average cost is defined by the Bureau of Census Metropolitan 
Statistical Areas. OWCP

[[Page 78562]]

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 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 number 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 NDC numbers, 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. The decision of OWCP to pay less than the 
charged amount is final when issued and is not subject to the 
adjudicatory process described in subpart D of this part.


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) Any such request will be considered by the district office with 
jurisdiction over the employee's claim. The request must be accompanied 
by documentary evidence that the procedure performed was either 
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 a charge in excess of the maximum 
allowable amount set by OWCP. 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 http://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

[[Page 78563]]

allowed as reasonable, considering the evidence submitted.
    (b) If the district office issues a decision that continues to 
disallow a contested amount, the provider may apply to the Regional 
Director of the region with jurisdiction over the district office. The 
application must be filed within 30 days of the date of such decision, 
and it may be accompanied by additional evidence. Within 60 days of 
receipt of such application, the Regional Director shall issue a 
decision in writing stating whether or not an additional amount will be 
allowed as reasonable, considering the evidence submitted.


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

    A provider whose fee for service is partially paid by OWCP as a 
result of the application of its fee schedule or other tests for 
reasonableness in accordance with this part shall not request payment 
from the employee for the unpaid amount of the provider's bill.
    (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:
    (1) Has been convicted of a crime described in Sec.  30.715(a); or
    (2) Has been excluded or suspended, or has resigned in lieu of 
exclusion or suspension, from participation in any federal or state 
program for which payments are made to providers for similar medical, 
surgical or hospital services, appliances or supplies.
    (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.

[[Page 78564]]

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 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 subpoenas or advisory opinions obtained?

    (a) In exclusion proceedings involving medical services provided 
under Part B of the Act only, the provider may apply to the 
administrative law judge for the issuance of subpoenas upon a showing 
of good cause therefore.
    (b) 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:
    (1) 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;
    (2) 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

[[Page 78565]]

    (5) A prejudicial error of procedure was committed.
    (d) Each issue shall be separately numbered and plainly and 
concisely stated, and shall be supported by detailed citations to the 
record when assignments of error are based on the record, and by 
statutes, regulations or principal authorities relied upon. Except for 
good cause shown, no assignment of error by any party shall rely on any 
question of fact or law upon which the administrative law judge had not 
been afforded an opportunity to pass.
    (e) A statement in opposition to the petition for discretionary 
review may be filed, but such filing shall in no way delay action on 
the petition.
    (f) If a petition is granted, review shall be limited to the 
questions raised by the petition.
    (g) A petition not granted within 20 days after receipt of the 
petition is deemed denied.


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

    (a) OWCP shall give notice of the exclusion of a physician, 
hospital or provider of medical services or supplies to:
    (1) All OWCP district offices;
    (2) 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.

Subpart I--Wage-Loss Determinations Under Part E of EEOICPA

General Provisions


Sec.  30.800  What types of wage-loss are compensable under Part E of 
EEOICPA?

    Years of wage-loss occurring prior to normal retirement age that 
are the result of a covered illness contracted by a covered Part E 
employee through work-related exposure to a toxic substance at a 
Department of Energy facility or a RECA section 5 facility, as 
appropriate, may be compensable under Part E of the Act. Whether years 
of wage-loss are compensable depends on determinations with respect to:
    (a) The average annual wage of the employee as determined by OWCP 
in accordance with Sec.  30.810;
    (b) The percentage of his or her average annual wage that the 
employee was able to earn during the calendar year(s) in question as 
determined by OWCP in accordance with Sec.  30.811; and
    (c) Whether the employee's inability to earn at least as much as 
his or her average annual wage was due to a covered illness as defined 
in Sec.  30.5(r).


Sec.  30.801  What special definitions does OWCP use in connection with 
Part E wage-loss determinations?

    For the purposes of paying compensation based on wage-loss under 
Part E of the Act, OWCP will apply the following definitions:
    (a) Average annual wage means four times the average quarterly 
wages of a covered Part E employee for the 12 quarters preceding the 
quarter during which he or she first experienced wage-loss due to 
exposure to a toxic substance at a DOE facility or RECA section 5 
facility, excluding any quarters during which the employee was 
unemployed. Because being ``retired'' is not equivalent to being 
``unemployed,'' quarters during which an employee had no wages because 
he or she was retired will not be excluded from this calculation.
    (b) Normal retirement age means the age at which a covered Part E 
employee first became eligible for unreduced retirement benefits under 
the Old-Age, Survivors and Disability Insurance (OASDI) provisions of 
the Social Security Act. In general, persons born during or before 1937 
are eligible for unreduced OASDI retirement benefits at age 65, and 
that age increases in monthly increments until it reaches 67, which is 
the age at which persons born during or after 1960 become eligible for 
unreduced OASDI retirement benefits.
    (c) Quarter means the three-month period January through March, 
April through June, July through September, or October through 
December.
    (d) Quarter during which the employee was unemployed means any 
quarter during which the covered Part E employee had $700 (in constant 
2005 dollars) or less in wages unless the quarter is one during which 
the employee was retired.
    (e) Year of wage-loss means a calendar year during which the 
covered Part E employee's earnings were less than his or her average 
annual wage, after such earnings have been adjusted using the Consumer 
Price Index for All Urban Consumers (CPI-U), as produced by the Bureau 
of Labor Statistics, to reflect their value in the year during which 
the employee first experienced wage-loss due to exposure to a toxic 
substance at a DOE facility or RECA section 5 facility.

Evidence of Wage-Loss


Sec.  30.805  What evidence does OWCP use to determine a covered Part E 
employee's average annual wage and whether he or she experienced 
compensable wage-loss under Part E of EEOICPA?

    (a) OWCP may rely on quarterly wages information reported to the 
Social

[[Page 78566]]

Security Administration to establish a covered Part E employee's 
presumed average annual wage (see Sec.  30.810) and the duration and 
extent of any years of wage-loss that are compensable under Part E of 
the Act (see Sec.  30.811). OWCP may also rely on other probative 
evidence of a covered Part E employee's wages, and may ask the claimant 
for additional evidence necessary to make this determination, if 
necessary. For the purposes of making these two types of 
determinations, OWCP will consider all monetary payments that the 
covered Part E employee received in a quarter from employment or 
services, except for monetary payments that were not taxable as income 
during that quarter under the Internal Revenue Code, to be ``wages.''
    (b) OWCP also requires the submission of rationalized medical 
evidence of sufficient probative value to establish that the period of 
wage-loss at issue is causally related to the covered Part E employee's 
covered illness.


Sec.  30.806  May a claimant submit factual evidence in support of a 
different determination of average annual wage and/or wage-loss than 
that found by OWCP?

    A claimant who disagrees with the evidence OWCP has obtained under 
Sec.  30.805(a) and alleges a different average annual wage for the 
covered Part E employee, or that there was a greater duration or extent 
of wage-loss, may submit records that were produced in the ordinary 
course of business due to the employee's employment to rebut that 
evidence, to the extent that such records are determined to be 
authentic by OWCP by a preponderance of the evidence. The average 
annual wage and/or wage-loss of the covered Part E employee will then 
be determined by OWCP in the exercise of its discretion.

Determinations of Average Annual Wage and Percentages of Loss


Sec.  30.810  How will OWCP calculate the average annual wage of a 
covered Part E employee?

    To calculate the average annual wage of a covered Part E employee 
as defined in Sec.  30.801(a), OWCP will:
    (a) Aggregate the wages for the twelve quarters that preceded the 
quarter during which the covered Part E employee first experienced 
wage-loss due to exposure to a toxic substance at a DOE facility or a 
RECA section 5 facility, excluding any quarter during which the 
employee was unemployed;
    (b) Add any additional wages earned by the employee during those 
same quarters as evidenced by records described in Sec. Sec.  30.805(a) 
and 30.806;
    (c) Divide the sum of paragraphs (a) and (b) of this section by 12 
less the number of quarters during which the employee was unemployed; 
and
    (d) Multiply this figure by four to calculate the covered Part E 
employee's average annual wage.


Sec.  30.811  How will OWCP calculate the duration and extent of a 
covered Part E employee's initial period of compensable wage-loss?

    (a) To determine the initial calendar years of wage-loss, OWCP will 
use the evidence it receives under Sec. Sec.  30.805 and 30.806 to 
determine the quarter in which a covered Part E employee first 
sustained wage-loss due to exposure to a toxic substance while engaged 
in employment at a DOE facility or a RECA section 5 facility, as 
appropriate.
    (b) OWCP will then compare the calendar-year wages for that 
employee, as adjusted, with the average annual wage determined under 
Sec.  30.810 for each calendar year beginning with the calendar year 
that includes the quarter in which the wage-loss commenced, and 
concluding with the last calendar year of wage-loss prior to the 
submission of the claim or the calendar year in which the employee 
reached normal retirement age (as defined in Sec.  30.801(b)), 
whichever occurred first.
    (c) OWCP will then aggregate separately the number of calendar 
years of wage-loss in which the employee's wages, as adjusted, did not 
exceed 50 percent of the average annual wage determined under Sec.  
30.810, and the number of calendar years of wage-loss in which the 
employee's wages, as adjusted, exceeded 50 percent of such average 
annual wage, but did not exceed 75 percent of such average annual wage.
    (d) For each calendar year of wage-loss determined under paragraph 
(c) of this section during which the employee's wages did not exceed 50 
percent of his or her average annual wage, OWCP will pay the employee 
$15,000 as compensation for wage-loss. For each calendar year of wage-
loss determined under paragraph (c) of this section during which the 
employee's calendar-year wages exceeded 50 percent of his or her 
average annual wage but did not exceed 75 percent of such average 
annual wage, OWCP will pay the employee $10,000 as compensation for 
wage-loss.


Sec.  30.812  May a covered Part E employee claim for subsequent 
periods of compensable wage-loss?

    A covered Part E employee previously awarded compensation for wage-
loss under Sec.  30.811 may file for additional compensation for wage-
loss suffered by the employee during periods subsequent to a period for 
which a wage-loss claim for the employee has already been adjudicated 
by OWCP. However, no compensation for wage-loss shall be awarded for 
any period following the year during which the covered Part E employee 
attained normal retirement age for purposes of the Social Security Act 
as described in Sec.  30.801(b).

Special Rules for Certain Survivor Claims Under Part E of EEOICPA


Sec.  30.815  Are there special rules that OWCP will use to determine 
the extent of a deceased covered Part E employee's compensable wage-
loss?

    (a) For purposes of adjudicating a claim of a survivor of a 
deceased covered Part E employee only, OWCP will presume that such 
employee experienced wage-loss for each calendar year subsequent to the 
calendar year of his or her death through and including the calendar 
year in which the employee would have reached normal retirement age 
under the Social Security Act. During these particular calendar years, 
OWCP will also presume that the deceased covered Part E employee's 
subsequent calendar-year wages did not exceed 50 percent of his or her 
average annual wage as determined under Sec.  30.810.
    (b) Except as provided in paragraph (a) of this section, OWCP will 
calculate the wage-loss of a deceased covered Part E employee in 
conformance with the provisions of Sec. Sec.  30.800 through 30.811.
    (c) If OWCP determines that a deceased covered Part E employee had 
an aggregate of not less than ten calendar years of adjusted earnings 
that did not exceed 50 percent of his or her average annual earnings, 
it will pay the eligible surviving beneficiary(s) additional 
compensation (the basic survivor award payable under section 7385s-
3(a)(1) is $125,000) in the amount of $25,000 pursuant to section 
7385s-3(a)(2) of the Act. In the alternative, if OWCP determines that 
the aggregate number of such years is not less than 20 years, it will 
pay the eligible surviving beneficiary(s) additional compensation in 
the amount of $50,000 pursuant to section 7385s-3(a)(3).

Subpart J--Impairment Benefits Under Part E of EEOICPA

General Provisions


Sec.  30.900  Who can receive impairment benefits under Part E?

    In order to receive impairment benefits under Part E, the employee 
must show that:
    (a) He or she is a covered Part E employee who has been determined 
to

[[Page 78567]]

have contracted a covered illness through exposure to a toxic substance 
at a DOE facility or a RECA section 5 facility, as appropriate, 
pursuant to either Sec. Sec.  30.210 through 30.215 or Sec. Sec.  
30.230 through 30.232 of these regulations; and
    (b) He or she has been determined to have an impairment, pursuant 
to the regulations set out in this subpart, that is the result of the 
covered illness referred to in paragraph (a) of this section.


Sec.  30.901  How does OWCP determine the extent of an employee's 
impairment that is due to a covered illness contracted through exposure 
to a toxic substance at a DOE facility or a RECA section 5 facility, as 
appropriate?

    (a) OWCP will determine the amount of impairment benefits to which 
an employee is entitled based on one or more impairment evaluations 
submitted by physicians. An impairment evaluation shall contain the 
physician's opinion on the extent of whole person impairment of all 
organs and body functions of the employee that are compromised or 
otherwise affected by the employee's covered illness or illnesses, 
which shall be referred to as a ``minimum impairment rating.''
    (b) The minimum impairment rating shall be determined in accordance 
with the current edition of the American Medical Association's Guides 
to the Evaluation of Permanent Impairment (AMA's Guides). In making 
impairment benefit determinations, OWCP will only consider medical 
reports from physicians who are certified by the relevant medical board 
and who satisfy any additional criteria determined by OWCP to be 
necessary to qualify to perform impairment evaluations under Part E, 
including any specific training in use of the AMA's Guides, specific 
training and experience related to particular conditions and other 
objective factors.
    (c) OWCP will establish criteria based upon objective factors such 
as training and certification that must be met by physicians preparing 
impairment evaluations in order for an impairment evaluation to be 
considered in determining an impairment award. Such criteria shall be 
made available to claimants and the public by OWCP.


Sec.  30.902  How will OWCP calculate the amount of the award of 
impairment benefits that is payable under Part E?

    OWCP will multiply the percentage points of the minimum impairment 
rating by $2,500 to calculate the amount of the award.

Medical Evidence of Impairment


Sec.  30.905  How may an impairment evaluation be obtained?

    (a) Except as provided in paragraph (b) of this section, OWCP may 
request that an employee undergo an evaluation of his or her permanent 
impairment that specifies the percentage points that are the result of 
the employee's covered illness or illnesses. To be of any probative 
value, such evaluation must be performed by a physician who meets the 
criteria OWCP has identified for physicians performing impairment 
evaluations for the pertinent covered illness or illnesses in 
accordance with the AMA's Guides.
    (b) In lieu of submitting an evaluation requested by OWCP under 
paragraph (a) of this section, an employee may obtain an impairment 
evaluation at his own initiative and submit it to OWCP for 
consideration. Such an evaluation will be deemed to have sufficient 
probative value to be considered in the adjudication of impairment 
benefits by OWCP only if:
    (1) The evaluation was performed by a physician who meets the 
criteria identified by OWCP for the covered illness or illnesses in 
question;
    (2) The evaluation was performed no more than one year before the 
date that it was received by OWCP; and
    (3) The evaluation conforms to all applicable requirements set out 
in this part.


Sec.  30.906  Who will pay for an impairment evaluation?

    (a) OWCP will pay for one impairment evaluation obtained by an 
employee if it meets the criteria set out in Sec.  30.905(b), unless it 
was performed by a physician prior to the date that the claim for Part 
E benefits is filed, or obtained for a claim in which OWCP finds that 
the employee did not contract a covered illness. At its discretion, 
OWCP may direct that the employee undergo additional evaluations. OWCP 
will pay for any such additional evaluations and will reimburse the 
employee for any reasonable and necessary costs incident to the 
evaluations, as described in Sec. Sec.  30.404 and 30.412 of this part.
    (b) Except for one impairment evaluation obtained pursuant to Sec.  
30.905(b) and meeting the criteria set out in Sec.  30.905(b)(1), (2) 
and (3), the employee must pay for any impairment evaluations not 
directed by OWCP.


Sec.  30.907  Can an impairment evaluation obtained by OWCP be 
challenged prior to issuance of the recommended decision?

    (a) An employee may submit arguments challenging an impairment 
evaluation, and/or additional medical evidence of impairment, before 
the district office issues a recommended decision on his or her claim. 
However, the district office will not consider an additional impairment 
evaluation, even if it differs from the impairment evaluation obtained 
under Sec. Sec.  30.905 or 30.906, if it does not meet the criteria 
listed in Sec.  30.905(b)(1), (2) and (3).
    (b) If the district office obtains an additional impairment 
evaluation that differs from the impairment evaluation obtained under 
Sec. Sec.  30.905 or 30.906, the district office will base its 
recommended determinations regarding impairment upon the evidence it 
considers to have the greatest probative value, after evaluating all 
relevant evidence of impairment in the record, including evidence from 
directed impairment evaluations and referee impairment evaluations, if 
any, that it deems necessary pursuant to Sec. Sec.  30.410 and 30.411 
of this part.


Sec.  30.908  How will the FAB evaluate new medical evidence submitted 
to challenge the impairment determination in the recommended decision?

    (a) If an employee submits an additional impairment evaluation that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will not consider the additional impairment evaluation 
if it does not meet the criteria listed in Sec.  30.905(b)(1), (2) and 
(3).
    (b) The employee shall bear the burden of proving that the 
additional impairment evaluation submitted is more probative than the 
evaluation relied upon by the district office to determine the 
employee's recommended minimum impairment rating.
    (c) If an employee submits an additional impairment evaluation that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will review all relevant evidence of impairment in the 
record, and will base its determinations regarding impairment upon the 
evidence it considers to be most probative. The FAB will determine the 
minimum impairment rating after it has evaluated all relevant evidence 
and argument in the record.

Ratable Impairments


Sec.  30.910  Will an impairment that cannot be assigned a numerical 
percentage using the AMA's Guides be included in the impairment rating?

    (a) An impairment of an organ or body function that cannot be 
assigned a numerical impairment percentage using the AMA's Guides will 
not be included in the employee's impairment rating.

[[Page 78568]]

    (b) A mental impairment that does not originate from a documented 
physical dysfunction of the nervous system, and cannot be assigned a 
numerical percentage using the AMA's Guides, will not be included in 
the impairment rating for the employee. Mental impairments that are due 
to documented physical dysfunctions of the nervous system can be 
assigned numerical percentages using the AMA's Guides and will be 
included in the rating.


Sec.  30.911  Does maximum medical improvement always have to be 
reached for an impairment to be included in the impairment rating?

    (a) An impairment that is the result of a covered illness will be 
included in the employee's impairment rating determined by OWCP under 
Sec.  30.901 only if OWCP concludes that the impairment has reached 
maximum medical improvement, which means that it is well-stabilized and 
unlikely to improve substantially with or without medical treatment.
    (b) Notwithstanding paragraph (a) of this section, if OWCP finds 
that an employee's covered illness is in the terminal stages, based 
upon probative medical evidence, an impairment that results from such 
covered illness will be included in the impairment rating for the 
employee even if it has not reached maximum medical improvement.


Sec.  30.912  Can a covered Part E employee receive benefits for 
additional impairment following an award of such benefits by OWCP?

    A covered Part E employee previously awarded impairment benefits by 
OWCP may file a claim for additional impairment benefits. Such claim 
must be based on an increase in the impairment rating that is the 
result of the covered illness or illnesses from the impairment rating 
that formed the basis for the last award of such benefits by OWCP. OWCP 
will only adjudicate claims for such an increased rating that are filed 
at least two years from the date of the last award of impairment 
benefits. However, OWCP will not wait two years before it will 
adjudicate a claim for additional impairment that is based on an 
allegation that the employee sustained a new covered illness.

    Signed at Washington, DC, this 15th day of December, 2006.
Victoria A. Lipnic,
Assistant Secretary of Labor for Employment Standards.
    Signed at Washington, DC, this 15th day of December, 2006.
Shelby Hallmark,
Director, Office of Workers' Compensation Programs, Employment 
Standards Administration.
 [FR Doc. E6-21839 Filed 12-28-06; 8:45 am]
BILLING CODE 4510-CR-P