[Federal Register Volume 84, Number 27 (Friday, February 8, 2019)]
[Rules and Regulations]
[Pages 3026-3060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00581]
[[Page 3025]]
Vol. 84
Friday,
No. 27
February 8, 2019
Part III
Department of Labor
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Office of Workers' Compensation Programs
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20 CFR Part 30
Claims for Compensation Under the Energy Employees Occupational
Illness Compensation Program Act; Final Rule
Federal Register / Vol. 84 , No. 27 / Friday, February 8, 2019 /
Rules and Regulations
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DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Part 30
RIN 1240-AA08
Claims for Compensation Under the Energy Employees Occupational
Illness Compensation Program Act
AGENCY: Office of Workers' Compensation Programs, Department of Labor.
ACTION: Final rule.
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SUMMARY: The Department of Labor initiated this rulemaking to bring
clarity to the regulatory description of the claims adjudication
process, and to improve the administration of the program. This final
rule updates existing regulations to remove obsolete terms, update
references and incorporate policy and procedural changes. It also adds
necessary controls to allow the Department to better manage the
provision of home health care to beneficiaries.
DATES: Effective Date: This final rule is effective on April 9, 2019,
and will apply to all claims filed on or after that date. This rule
will also apply to any claims that are pending on April 9, 2019.
FOR FURTHER INFORMATION CONTACT: Rachel P. Leiton, Director, Division
of Energy Employees Occupational Illness Compensation, Office of
Workers' Compensation Programs, U.S. Department of Labor, Room C-3321,
200 Constitution Avenue NW, Washington, DC 20210, Telephone: 202-693-
0081 (this is not a toll-free number). Individuals with hearing or
speech impairments may access this telephone number via TTY by calling
the toll-free Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background of This Rulemaking
The Department of Labor (Department) published its Notice of
Proposed Rulemaking (NPRM) in the Federal Register on November 18, 2015
(80 FR 72296). In its NPRM, the Department proposed amending certain of
the existing regulations governing its administration of Parts B and E
of the Energy Employees Occupational Illness Compensation Program Act
of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et seq to conform
them to current administrative practice, based on its experience
administering the Act since 2001, to bring further clarity to the
regulatory description of the claims adjudication process, and to
improve the administration of the Act. The majority of the changes in
the NPRM consisted of routine updates to the existing regulations to
remove obsolete terms, update references and incorporate policy changes
that have already been adopted in the Federal (EEOICPA) Procedure
Manual. Most significantly, the Department proposed modifying the
existing regulations to describe the increased involvement of the
National Institute for Occupational Safety and Health (NIOSH), within
the Department of Health and Human Services (HHS), in the Office of
Workers' Compensation Programs' (OWCP's) consideration of objections to
NIOSH's final radiation dose reconstruction reports. Since the
beginning of OWCP's administration of Part B of EEOICPA, Final
Adjudication Branch (FAB) reviewers have struggled with their
regulatory obligation in existing Sec. 30.318 to consider objections
to final dose reconstruction reports that have been prepared by NIOSH
during its portion of the adjudication process for radiogenic cancer
claims. The experience has also been frustrating for claimants, and
convinced the Department that FAB reviewers are ill-suited to address
objections that concern matters within the particular scientific
expertise of NIOSH. Since NIOSH agreed to consider and address claimant
concerns in the final dose reconstruction report it sends to OWCP, and
also agreed to provide consultation at the request of FAB reviewers to
address any objections raised while the claim is pending before FAB,
the Department proposed modifying Sec. 30.318(a). That proposed
paragraph describes the potential for NIOSH to provide consultation in
FAB's consideration of objections to final dose reconstruction reports,
and this consultation process will provide for a more complete
consideration of the claimant's objections. In addition, the Department
proposed changes in the NPRM to align the processing and payment of
medical bills with the system that OWCP currently uses for paying
medical bills, updated the process for excluding EEOICPA medical
service providers and set out a new process for authorizing home health
care.
The Department notes that this final rule is largely an update to
the existing regulations to reflect the program's current processes,
and incorporates the policy and procedural changes that have been
implemented since the existing regulations were issued in 2006, rather
than imposing any new regulatory burdens. However, it puts necessary
controls in place to allow the Department to better manage the
provision of home health care to beneficiaries, since these costs have
been rising over the past decade, and reduces the likelihood of
fraudulent practices by some providers of this care. Accordingly, the
Department believes that the likely benefits of this rulemaking for
both OWCP and the public, in the form of regularized, simplified, and
less costly administrative practices of OWCP, and the reduced need for
costly overpayment-recovery efforts, will clearly outweigh any unlikely
and presumably intangible burdens on businesses and the public at
large.
II. Comments on the Proposed Regulations
The Department originally allowed a 60-day period for interested
parties to comment on the NPRM that was scheduled to close on January
19, 2016, but on that date it extended the comment period another 30
days through February 18, 2016 (81 FR 2787). In addition, on April 5,
2016, the Department reopened the comment period for the NPRM through
May 9, 2016 (81 FR 19518). During these comment periods, the Department
received a total of 493 timely comments from the following 474 unique
commenters: 272 individuals; 158 unknown persons or organizations; 25
physicians; 6 claimant representatives; 5 advocacy groups; 3 health
care providers; 1 congressional representative; 1 labor organization; 1
Federal employee from an agency other than the Department; 1 law firm
and the new Advisory Board on Toxic Substances and Worker Health
established under section 7385s-16 of EEOICPA. The Department also
received one untimely comment from an individual that raised issues
that were also raised by the timely commenters.
Of the 493 timely comments, 220 did not address any aspect of the
proposed regulatory changes in the NPRM and are not discussed further
in this document. This left 273 comments, of which 128 only asked the
Department to extend the comment period for the NPRM, but did not
discuss any other aspect of the NPRM. The remaining 145 comments
referenced at least one change to the existing regulations suggested in
the proposed rule; 7 of these 145 also included an extension request.
The Department's section-by-section analysis of the 145 timely comments
is set forth below (see section III). A brief discussion of the total
of 135 extension
[[Page 3027]]
requests and other ancillary matters related to this rulemaking is also
set forth below (see section IV).
III. Section-by-Section Analysis
The analysis in this section provides the Department's response to
public comments received on the NPRM. Unless otherwise stated, the
section numbers in the text of the analysis refer to the numbering used
for the final regulations.
Subpart A--General Provisions
Introduction
In the NPRM, the Department proposed modifying existing Sec. 30.1
to update the Secretary's Order reference and delete the reference to
the Assistant Secretary for Employment Standards, since that position,
as well as the Employment Standards Administration, no longer exists. A
claimant representative agreed with the Department's deletion of those
references. An individual commented on other aspects of proposed Sec.
30.1 that are no different from the existing Sec. 30.1. Because the
individual's comment did not refer to a change that was proposed in the
NPRM, no amendment was made in the final rule with respect to this
comment.
Proposed Sec. 30.2(b) added language to that section to note that
HHS delegated its dose reconstruction responsibilities to NIOSH in 42
CFR 82.1. A claimant representative suggested that the Department
should retain the reference to HHS that appears in existing Sec.
30.2(b). However, the Department believes that explicitly acknowledging
this delegation will promote better public understanding of the fact
that this particular portion of the claim adjudication process is
performed by and under the exclusive control of another Federal agency.
Under these circumstances, no changes were made in the final rule with
respect to this comment. An individual commented on other aspects of
proposed Sec. 30.2(b) that are no different from the existing Sec.
30.2(b). Because the individual's comment did not refer to a change
that was proposed in the NPRM, no amendment was made in the final rule
with respect to this comment.
Definitions
The Department proposed amending the definition of a beryllium
vendor in existing Sec. 30.5(i) by removing the language indicating
that the Department of Energy (DOE) periodically updated a list of
beryllium vendors in the Federal Register, since DOE no longer has the
statutory authority to designate beryllium vendors, and replaced it
with a reference to the final list of beryllium vendors that DOE
compiled on December 27, 2002. One individual objected to the proposed
language, because he believed that the change did not acknowledge that
additional beryllium vendor facilities, i.e., newly identified
locations where beryllium vendors performed their work, could still be
designated. While DOE's authority to designate new beryllium vendors
expired on December 31, 2002 pursuant to 42 U.S.C. 7384m, the
Department agrees that there is authority, as the individual pointed
out, to designate additional beryllium vendor facilities, and notes
that additional beryllium vendor facilities have been designated after
December 31, 2002. The Department therefore agrees that the proposed
language might cause confusion, and is clarifying it in the final rule
by removing the term ``facilities'' and replacing it with ``other
entities.'' This change will acknowledge the continuing authority to
designate additional beryllium vendor facilities that are, or have
been, owned and operated by either a beryllium vendor identified in
section 7384l(6) of EEOICPA or a beryllium vendor designated by DOE
prior to December 31, 2002. The same individual also suggested that the
Department amend proposed Sec. 30.5(i) to clarify the distinction
between corporate beryllium vendors identified in EEOICPA and those
designated by DOE prior to December 31, 2002. The Department sees no
utility in making the suggested distinction, particularly in the
context of claims adjudication, and therefore did not alter the text as
desired.
In the NPRM, the Department proposed adding a new paragraph, Sec.
30.5(j), to define the term beryllium vendor facility. To accommodate
this proposed addition, the Department also proposed redesignating
existing paragraphs (j) through (hh) as paragraphs (k) through (ii).
Proposed Sec. 30.5(j) defined the term beryllium vendor facility as
``a facility owned and operated by a beryllium vendor.'' Two claimant
representatives and three advocacy groups objected to proposed Sec.
30.5(j) because they believed that the proposed definition would
impermissibly narrow the scope of coverage as set out in EEOICPA for
both current and potential covered beryllium employees. These
commenters suggested that proposed Sec. 30.5(j) be amended to include
the words ``occupied by a beryllium vendor'' to specifically align the
definition with section 7384l(7)(A) of EEOICPA, which refers to ``a
facility owned, operated or occupied by a beryllium vendor.'' While the
Department acknowledges that section 7384l(7)(A) refers to ``a facility
owned, operated or occupied by a beryllium vendor,'' employees who
satisfy that first provision must also show that they were exposed in
the performance of duty under section 7384n(a)(2), which refers to ``a
facility owned and operated by a beryllium vendor.'' Put simply, an
employee must satisfy both statutory provisions to be entitled to Part
B benefits due to a beryllium illness. Thus, the narrower of those two
implicit definitions of a ``beryllium vendor facility'' controls. The
Department notes, however, that the proposed definition did not, nor
could it, alter the eligibility of workers at beryllium vendor
facilities. Accordingly, no changes were made in the final rule with
respect to these comments.
Proposed Sec. 30.5(k)(2) suggested replacing the term ``medical
doctor'' with ``licensed physician'' in the existing definition of
chronic silicosis that currently appears in existing Sec. 30.5(j)(2).
One claimant representative commented on the language in existing Sec.
30.5(k), which contains a definition of the term claim, rather than on
the proposed change to the definition of chronic silicosis. Since the
claimant representative's comment did not refer to a change that was
proposed in the NPRM, no amendment was made in the final rule with
respect to this comment.
Proposed Sec. 30.5(w) updated the existing definition of the
Department of Energy or DOE to clarify that DOE's predecessor agencies
date back to August 13, 1942, which is the date that the Manhattan
Engineer District was established. Two advocacy groups asserted that
the start date of DOE's predecessor agencies in proposed Sec. 30.5(w)
would prevent some employees who worked on the atomic bomb from
applying for benefits, and suggested that the start date should conform
with the employment eligibility criteria under section 5 of RECA.
However, the Department notes that such a proposal is not legally
permissible because section 7384l(10) of EEOICPA provides that the term
``Department of Energy'' includes the Manhattan Engineer District,
which was established on August 13, 1942, not January 1, 1942. Since
the proposed regulatory language aligns with section 7384l(10), no
change was made to Sec. 30.5(w) in the final rule. One claimant
representative also commented on Sec. 30.5(w), but did not comment on
a proposed change in that provision. Because the claimant
representative's
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comment did not refer to a change that was proposed in the NPRM, no
amendment was made in the final rule with respect to this comment.
In proposed Sec. 30.5(x), the Department added Sec.
30.5(x)(2)(iii) to the definition of a Department of Energy contractor
employee in existing Sec. 30.5(w) to state that a civilian employee of
a state or Federal government agency qualifies as a DOE contractor
employee if the agency employing that individual is found to have
entered into a contract with DOE for the provision of one or more
services it was not statutorily obligated to perform and DOE
compensated the agency for those services, and also that the delivery
or removal of goods from the premises of a DOE facility does not
constitute a service for the purposes of determining a worker's
coverage under the Act. Four advocacy groups, one claimant
representative, two individuals and the labor organization objected to
the added language regarding the delivery or removal of goods for the
purposes of determining a worker's coverage under the Act. However,
that language memorializes a policy that has been followed by OWCP
since it issued EEOICPA Bulletin No. 03-27 in 2003, and that policy
continues to conform with the eligibility terms of the statute. Because
Sec. 30.5(x)(2)(iii) merely updates the current regulations with
OWCP's longstanding policy, the requested changes were not made in the
final rule. Another claimant representative commented on aspects of
existing Sec. 30.5(x), but did not comment on a proposed change in
that provision. Since the individual's comment did not refer to a
change that was proposed in the NPRM, no amendment was made in the
final rule with respect to this comment.
Proposed Sec. 30.5(ee) amended the definition of a physician in
existing Sec. 30.5(dd), which states that a ``physician includes'' a
list of types of physicians, by stating that a ``physician means'' that
same list. Two advocacy groups, one Federal employee, the labor
organization and one health care provider suggested that the Department
retain the word ``includes'' so that medical doctors and other medical
specialists are included in that definition. The Department agrees with
these commenters and acknowledges that the proposed change would have
had unintended consequences. Accordingly, the Department is reverting
back to using the word ``includes'' in the final rule. One of those
same advocacy groups and another health care provider suggested adding
nurse practitioners and/or physician assistants to this regulatory
definition because these practitioners are qualified to prescribe
medication in some jurisdictions. However, while the Department
acknowledges that nurse practitioners and physician assistants can
provide valuable services to patients who reside in remote locations,
their written opinions are not widely accepted as probative and
persuasive medical evidence. To make that point clear, the Department
has added text to this effect to Sec. 30.5(ee) in the final rule.
Finally, one claimant representative referred to something that was not
changed in proposed Sec. 30.5(ee). Because the claimant
representative's comment does not pertain to a change in proposed Sec.
30.5(ee), no change was made in the final rule based on this comment.
Proposed Sec. 30.5(gg) removed references to ``RECA'' and
``EEOICPA'' in the existing definition of a specified cancer in Sec.
30.5(ff). One claimant representative suggested that the Department
should retain those references. However, the Department notes that
these two statutory references are clearly surplusage and serve no
useful purpose in the regulatory context. Therefore, the suggested
change to this paragraph was not adopted in the final rule.
The Department proposed to expand upon the definition of the term
time of injury in existing Sec. 30.5(hh) by adding text in proposed
Sec. 30.5(ii)(2) to explain that the time of injury in a survivor's
claim is the ``date of the employee's death.'' Four advocacy groups, a
claimant representative, a physician and the labor organization
disagreed with the proposed definition, based on their concern that the
proposed text could deprive survivors of reimbursement for medical
expenses in situations when a covered employee dies after filing a
claim, but before such claim is accepted. Section 7385i(a) of EEOICPA
is the only place in the statute that Congress used the term ``time of
injury,'' and the Department notes that proposed Sec. 30.5(ii)(2) was
intended to clarify how the forfeiture provision in section 7385i(a)
works when a survivor, as distinguished from an employee, is convicted
of fraud in the application for or receipt of EEOICPA benefits or of
Federal or state workers' compensation benefits. It was the
Department's intention in the NPRM to give full force and effect to
this important fraud prevention provision. Because this definition only
impacts those survivors who have committed fraud of the sort that
triggers the forfeiture provision of section 7385i(a), and the
overwhelming majority of survivors who might be eligible to claim this
reimbursement do not engage in such fraudulent acts, they will not be
affected in any way by this clarification. Accordingly, no change was
made to Sec. 30.5(ii)(2) in the final rule.
In the NPRM, the Department proposed adding new paragraph Sec.
30.5(jj) to define the terms time of payment or payment. To accommodate
this addition, the Department also proposed redesignating existing
paragraphs (ii) and (jj) as paragraphs (kk) and (ll). Proposed Sec.
30.5(jj) defined time of payment or payment as the date that (1) a
paper check issued by the Department of the Treasury was received by
the payee or by someone who was legally able to act for the payee, or
(2) the date the Department of the Treasury made an Electronic Funds
Transfer to the payee's financial institution. One claimant
representative objected to the proposed definition and argued that the
Department should define this term by referring to the time a payment
is issued, rather than received. However, the commenter erroneously
believes that it is OWCP that issues payments on claims under EEOICPA,
when as noted above, it is the Department of the Treasury that performs
these ministerial functions. Therefore, since the date a payment is
issued is not entirely within OWCP's control, nothing in this final
rule could alter when payment by either paper check or Electronic Funds
Transfer occurs. Thus, the suggested change to this paragraph was not
made in the final rule.
Subpart B--Filing Claims; Evidence and Burden of Proof; Special
Procedures for Certain Cancer Claims
Filing Claims for Benefits Under EEOICPA
Proposed Sec. 30.100(a) and (c)(1) removed language that would
allow certain persons other than the employee to sign a written claim
with OWCP on the employee's behalf, and instead required that the
employee sign his or her own claim. Proposed Sec. 30.101(a) and (d)(1)
made the same change with respect to survivor claims. Three claimant
representatives, three individuals, two health care providers, one
advocacy group and the labor organization objected to the Department's
change in proposed Sec. 30.100(a) and (c)(1) to require an employee to
sign his or her own written claim. The same three claimant
representatives, the same three individuals, the same advocacy group
and the same labor organization objected to the same change made in
proposed Sec. 30.101(a) and (d)(1). These commenters were concerned
that the
[[Page 3029]]
requirement would cause undue difficulty and delay in the submission of
claims by some elderly or otherwise impaired individuals. However, when
signing Forms EE-1 and EE-2, a claimant makes certain certifications
with possible legal ramifications, and authorizes the release of
information to OWCP. Therefore, it is reasonable to require claimants
to sign the form, particularly since doing so will be an objective
indication that he or she is aware of these matters. The same advocacy
group and one of the three individuals suggested that these sections
should be written so as to accommodate those claimants who may be
unable to sign a claim form. OWCP already accepts, and will continue to
accept, claim forms signed by a valid attorney-in-fact or court-
appointed representative. An individual other than a claimant may sign
the claim form for the claimant if they have the recognized authority
to do so, and are not otherwise prohibited under any other provision in
these regulations. Therefore, the Department has not made the suggested
changes to Sec. 30.100(a) and (c)(1), or to Sec. 30.101(a) and
(d)(1), in the final rule.
Also in proposed Sec. Sec. 30.100 and 30.101, the Department
proposed amending language that currently only recognizes postmark
dates as evidence of the time a claim is filed to also recognize the
date-markings of other carriers, since other delivery options besides
the U.S. Mail are widely used. A claimant representative indicated that
she did not see any reason for making these proposed changes, and
suggested that the additional language be removed. However, since the
proposed language at issue in these two sections adds new ways for a
claimant to establish the date he or she filed a claim, which is
important because the date of filing also marks the date of
commencement for the potential payment of medical benefits, the
claimant representative's belief is unfounded. Therefore, no change was
made in the final rule in response to this comment.
In the NPRM, proposed Sec. 30.102(a) removed the superfluous word
``minimum'' from the term ``minimum impairment rating'' in existing
Sec. 30.102(a). A claimant representative objected to that change, and
pointed out that this word appears in the statutory description of
impairment ratings found in section 7385s-2(a)(1)(A)(i) of EEOICPA.
However, as the Department explained when it published proposed Sec.
30.102(a), the term ``minimum impairment rating'' is an artifact left
over from an early draft of the legislation that was later enacted as
Part E of EEOICPA and has no intrinsic meaning in the scheme that
Congress eventually passed. Since there is no practical difference
between a ``minimum impairment rating'' and an ``impairment rating''
when a claimant has reached maximum medical improvement, no amendment
was made in the final rule in response to this comment.
Evidence and Burden of Proof
In proposed Sec. 30.110(a)(1), the Department updated a cross-
reference to reflect the changed location of the regulatory provision
defining the term covered beryllium illness from Sec. 30.5(o) to Sec.
30.5(p). Also, in proposed Sec. 30.110(a)(4), the Department updated a
cross-reference to reflect the changed location of the regulatory
provision defining the term covered uranium employee from Sec. 30.5(s)
to Sec. 30.5(t). Finally, in proposed Sec. 30.110(b), the Department
updated a cross-reference to reflect the changed location of the
regulatory provision defining the term covered Part E employee from
Sec. 30.5(p) to Sec. 30.5(q). A claimant representative questioned
the need to change these regulatory cross-references in proposed Sec.
30.110(a) and (b), and suggested that the existing cross-references be
retained. However, the Department notes that these changes were
necessary to reflect the changed location of the specified regulatory
provisions. Therefore, no change was made to Sec. 30.110(a) or (b) in
the final rule.
In the NPRM, proposed Sec. 30.112(b)(3) removed the term ``self-
serving'' when referring to affidavits submitted to establish covered
employment, and also removed language that ``OWCP may reject the claim
based upon a lack of evidence of covered employment'' when DOE or
another entity either disagrees, or cannot concur or disagree with the
assertion in a written affidavit or declaration of covered employment.
In its place, proposed Sec. 30.112(b)(3) explained that OWCP will
evaluate such an affidavit in conjunction with the other evidence of
employment when DOE or another entity either disagrees, or cannot
concur or disagree with the assertion, and ``may determine that the
claimant has not met his or her burden of proof under Sec. 30.111.'' A
claimant representative agreed with removing the term ``self-serving,''
but stated that the added language in that provision might signify that
OWCP will always make a finding of no covered employment based on this
type of evidence, and suggested adding language that ``objective''
evidence such as statements from co-workers, social security records,
and payroll records will be considered as evidence of employment. An
advocacy group had the same concern regarding the effect of the changes
made in proposed Sec. 30.112(b)(3), and noted that DOE does not have
complete employment records. Both commenters asked the Department to
clearly define several terms used in the proposed text that explain how
OWCP will evaluate affidavit evidence in these situations. However,
proposed Sec. 30.112(b)(3) described OWCP's longstanding method of
evaluating employment evidence, which necessarily involves a high
degree of administrative discretion, and therefore the Department is
not persuaded that it would be appropriate to make the above changes in
the final rule. An individual mistakenly asserted that OWCP does not
accept affidavit evidence to prove covered employment, but did not
comment on the proposed change in that provision. Because the
individual's comment did not refer to a change that was proposed in the
NPRM, no change was made to Sec. 30.112(b)(3) in the final rule with
respect to this comment. However, the Department has decided that it
needs to conform the regulatory language of Sec. 30.112(b)(3) with the
related text of Sec. 30.231(a) in the final rule, by specifying that
if the only evidence that the claimant submits to establish covered
employment is an affidavit, OWCP will evaluate that affidavit in
conjunction with the other available evidence of employment in the
record.
Proposed Sec. 30.113(c) removed the term ``self-serving'' when
referring to documents submitted to establish a covered medical
condition, and instead proposed language codifying OWCP's current
method of evaluating all medical evidence in a claim when it decides if
the claimant has met his or her burden of proof under Sec. 30.111. A
claimant representative and a health care provider suggested that the
Department further define several terms it used in proposed Sec.
30.113(c). The Department believes that OWCP's evaluation of medical
evidence is a matter of administrative discretion and cannot reasonably
be further defined. An individual mistakenly asserted that OWCP does
not accept the type of medical evidence described in proposed Sec.
30.113(c), but did not comment on the proposed change in that
provision. Because the individual's comment did not refer to a change
that was proposed in the NPRM, no change was made to Sec. 30.113(c) in
the final rule with respect to this comment.
The Department proposed modifying existing Sec. 30.114(b) in the
NPRM to clarify that current paragraphs (b)(1) and (b)(2) pertain to
medical evidence
[[Page 3030]]
needed to establish a compensable medical condition under Part B, and
added paragraph (b)(3) to provide that additional medical evidence, as
described in other sections of the regulations, is required to
establish claims for covered illness(es), impairment benefits and wage-
loss benefits under Part E. A claimant representative agreed with the
Department's changes in proposed Sec. 30.114(b)(1) and (2), but
asserted that proposed Sec. 30.114(b)(3)(ii) wrongly required a
claimant to submit additional medical evidence to establish a wage-loss
claim, because she believed that the medical evidence already used to
accept a covered illness should be enough to support a claim for wage-
loss benefits. This belief does not consider that there are, however,
additional eligibility requirements for wage-loss benefits in section
7385s-2(a)(2) of EEOICPA beyond those set out in section 7385s-4 of
EEOICPA. Therefore, no change was made to Sec. 30.114(b) in the final
rule as a result of this comment.
Special Procedures for Certain Radiogenic Cancer Claims
Proposed Sec. 30.115(a) deleted a reference to an obsolete HHS
regulation, and proposed Sec. 30.115(a)(2) deleted language stating
that HHS may perform further development of the employee's work history
and that it will provide DOE with a copy of the final dose
reconstruction report for an employee, since HHS does not perform
either of those actions. In addition, proposed Sec. 30.115(a) and (b)
replaced references to ``HHS'' with ``NIOSH.'' A claimant
representative commented on other aspects of proposed Sec. 30.115(a)
that are no different from the existing Sec. 30.115(a). The same
claimant representative and the labor organization commented on other
aspects of proposed Sec. 30.115(a)(2) that are no different from
existing Sec. 30.115(a)(2). Because those commenters did not refer to
changes that were proposed in the NPRM, no changes were made to Sec.
30.115(a)(2) in the final rule based on their comments, nor was any
change made to Sec. 30.115(b) in the final rule.
Subpart C--Eligibility Criteria
Eligibility Criteria for Claims Relating to Covered Beryllium Illness
Under Part B of EEOICPA
In proposed Sec. 30.205(a)(1), the Department updated a cross-
reference to reflect the changed location of the regulatory provision
defining the term current or former employee as defined in 5 U.S.C.
8101(1) from Sec. 30.5(t) to Sec. 30.5(u). In proposed Sec.
30.205(a)(3)(i), the Department updated a cross-reference to reflect
the changed location of the regulatory provision defining the term
Department of Energy facility from Sec. 30.5(x) to Sec. 30.5(y). A
claimant representative noted those cross-reference changes in proposed
Sec. 30.205. However, because the commenter did not either support or
oppose the proposed regulation or offer ideas for changes, no change
was made to Sec. 30.205 in the final rule based on this comment.
Proposed Sec. 30.206(a) removed the language ``a facility owned,
operated, or occupied by a beryllium vendor'' from existing Sec.
30.206(a), and instead referenced the definition of a beryllium vendor
facility in proposed Sec. 30.5(j). An advocacy group, a claimant
representative, a health care provider and the Advisory Board suggested
that the Department should retain the language in current Sec.
30.206(a), and not reference proposed Sec. 30.5(j) because they
believed that proposed Sec. 30.5(j) erroneously excluded facilities
that were ``occupied by'' a beryllium vendor. As explained above,
proposed Sec. 30.5(j) did not alter the eligibility of workers at
beryllium vendor facilities; rather, it encompassed the narrower of the
two definitions at section 7384n(a)(2) of EEOICPA, which all beryllium
vendor employees must satisfy to establish their eligibility.
Therefore, the suggested change was not adopted in the final rule. The
same advocacy group and another advocacy group commented on other
aspects of proposed Sec. 30.206(a) that were no different from
existing Sec. 30.206(a). Because the comments submitted by the
advocacy groups did not refer to changes that were proposed in the
NPRM, no amendments were made to Sec. 30.206(a) in the final rule with
respect to those comments.
The Department proposed adding paragraph (d) to existing Sec.
30.207 to memorialize its current practices for determining whether to
evaluate an employee's medical evidence under either the pre- or post-
1993 criteria outlined in section 7384l(13) of EEOICPA. Proposed Sec.
30.207(d)(1) through (3) explained that OWCP will look to the date that
the employee was either treated for or diagnosed with a chronic
respiratory disorder when determining whether to use either the pre- or
post-1993 criteria. One advocacy group took issue with the portion of
proposed Sec. 30.207(d) that refers to a diagnosis of a ``chronic
respiratory disorder,'' in the belief that the need to establish this
diagnosis might conflict with section 7384l(13)(B)(ii)(IV) of EEOICPA.
However, no such conflict exists, since the requirement to establish a
diagnosis of a chronic respiratory disorder is one of the ways that
would permit the use of the pre-1993 diagnostic criteria (of which the
statutory provision referenced above is one of five) for ``established
chronic beryllium disease'' under Part B of EEOICPA, rather than, as
the commenter posited, a criterion in and of itself. Therefore, the
Department made no change to Sec. 30.207(d) as a result of this
comment. A claimant representative suggested that the Department
further define the term ``chronic'' in proposed Sec. 30.207(d), but
she did not suggest any changes to the text of the provision. The
Department is unaware of any current or past difficulty regarding the
use of this term in the claims adjudication process, and is therefore
not persuaded that the term requires any further explanation in the
regulations. The same claimant representative suggested that the
Department add the words ``tested for'' a chronic respiratory disorder
in proposed Sec. 30.207(d)(1) and (2), since that change would be
consistent with OWCP's past practice. The Department agrees with this
comment; accordingly, text has been added to Sec. 30.207(d)(1) and (2)
in the final rule to acknowledge that OWCP will consider whether the
employee was ``tested positive for'' a chronic respiratory disorder
when it decides whether the criteria in paragraph (c)(1) in Sec.
30.207 can be used.
Eligibility Criteria for Claims Relating to Radiogenic Cancer Under
Parts B and E of EEOICPA
In proposed Sec. Sec. 30.210(a)(1) and 30.211, the Department
updated a cross-reference to reflect the changed location of the
regulatory provision defining the term specified cancer from Sec.
30.5(ff) to Sec. 30.5(gg). A claimant representative noted those
cross-reference changes in the above sections. However, because the
commenter did not either support or oppose the proposed regulation or
offer ideas for changes, no change was made to those sections in the
final rule based on this comment.
Proposed Sec. 30.213(a) replaced the words ``the employee's
radiation dose reconstruction'' with ``the employee's final dose
reconstruction report,'' and replaced a reference to ``HHS'' with
``NIOSH.'' A claimant representative commented on other aspects of
proposed Sec. 30.213(a) that are no different from existing Sec.
30.213(a). Because the claimant representative's comment did not refer
to a change that was proposed in the NPRM, no amendment was made to
Sec. 30.213(a) in the final rule with respect to this comment.
[[Page 3031]]
Eligibility Criteria for Claims Relating to Chronic Silicosis Under
Part B of EEOICPA
In proposed Sec. 30.220(a), the Department updated cross-
references to reflect the changed location of the regulatory provisions
defining the terms Department of Energy facility and chronic silicosis,
from Sec. 30.5(x) to Sec. 30.5(y) and from Sec. 30.5(j) to Sec.
30.5(k), respectively. A claimant representative noted those cross-
reference changes in Sec. 30.220(a). However, because the commenter
did not either support or oppose the proposed regulation or offer ideas
for changes, no changes were made to this section in the final rule
based on this comment.
In proposed Sec. 30.222(a), the Department updated a cross-
reference to reflect the changed location of the regulatory provision
defining the term chronic silicosis from Sec. 30.5(j) to Sec.
30.5(k). Also in proposed Sec. 30.222(a), the Department replaced the
term ``medical doctor'' with ``licensed physician.'' A claimant
representative noted the cross-reference change in Sec. 30.222(a).
However, because the commenter did not either support or oppose the
proposed regulation or offer ideas for changes, no change was made to
those sections in the final rule based on this comment.
Eligibility Criteria for Other Claims Under Part E of EEOICPA
In proposed Sec. 30.230(a) and (d)(1), the Department updated a
cross-reference to reflect the changed location of the regulatory
provision defining the term Department of Energy contractor employee
from Sec. 30.5(w) to Sec. 30.5(x). A claimant representative noted
the cross-reference changes in Sec. 30.230(a) and (d)(1). However,
because the commenter did not either support or oppose the proposed
regulation or offer ideas for changes, no change was made to those
paragraphs in the final rule based on this comment.
The Department proposed to amend Sec. 30.231(a) by adding the same
language contained in proposed Sec. 30.112(b)(3) to explain its
current practice of evaluating affidavit evidence submitted by a
claimant as proof of employment, in conjunction with all evidence of
employment, to determine if the claimant has met his or her burden of
proof. Four advocacy groups, one of whom submitted two different
comments, two claimant representatives and the labor organization
objected to the proposed language in Sec. 30.231(a). One of those
claimant representatives suggested that the Department replace the
proposed language entirely with language stating that it will accept a
claimant's affidavit as evidence of covered employment, absent strong
evidence discrediting the affidavit. Also, one of the four advocacy
groups questioned whether proposed Sec. 30.231(a) would make it more
difficult for claimants to meet their burden of proof. While the
Department does not agree with the comment submitted by the claimant
representative noted above, it nonetheless has added text (as it did
for Sec. 30.112(b)(3)) to clarify that if the only evidence that the
claimant submits to establish covered employment is an affidavit, OWCP
will evaluate that affidavit in conjunction with the other available
evidence of employment when it is unable to verify the alleged covered
employment through the processes described in 20 CFR 30.105(a) and
30.106. The Department made that same minor change in the text of Sec.
30.231(a). However, the Department notes that the advocacy group's
concern about the burden of proof is misplaced, since there is nothing
in the text of proposed Sec. 30.231(a) that would alter a claimant's
burden of proof to establish covered employment; therefore, no changes
were made in Sec. 30.231(a) in the final rule based on this other
comment. The other three advocacy groups and the labor organization
also asked the Department to define several terms used in the text that
explain how OWCP will evaluate affidavit evidence in these situations,
while the same three advocacy groups, the two claimant representatives
and the first advocacy group discussed above all suggested that neither
DOE nor another entity should have any role in OWCP's evaluation of
affidavit evidence. However, as it explained above in response to
similar comments to proposed Sec. 30.112(b)(3), the Department is not
persuaded that it would be appropriate to make such changes. Therefore,
no change was made in Sec. 30.231(a) as a result of those comments.
Proposed Sec. 30.231(b) described sources, in addition to the Site
Exposure Matrices that are currently listed in that paragraph, that the
Department considers to be reliable sources of information to establish
whether an employee was exposed to a toxic substance at a DOE facility
or a RECA section 5 facility. An advocacy group disagreed in general
terms with proposed Sec. 30.231(b). However, the Department believes
that the proposed expansion of the list will be helpful for claimants
during the claims adjudication process. Another advocacy group
suggested that the Department define several terms used in the text
that explain OWCP's evaluation of evidence of toxic exposure. However,
any such definitions would be unnecessarily specific, and therefore not
appropriate for regulatory text. A claimant representative suggested
that the Department state in proposed Sec. 30.231(b) that OWCP will
only require evidence that the toxic substance was present at a claimed
work site and that the employee came in contact with the substance.
However, such a change would ignore the explicit requirements of
section 7385s-4(c)(1). The Advisory Board requested that the Department
include in proposed Sec. 30.231(b) additional potential sources of
probative evidence of toxic exposure. Such a change is unnecessary
because proposed Sec. 30.231(b)(3) already made clear that OWCP would
consider evidence from any entity deemed by OWCP to be a reliable
source of information for the purposes of proving toxic exposure
information. For the above reasons, the Department did not make any of
the suggested changes discussed by these commenters to Sec. 30.231(b)
in the final rule.
Proposed Sec. 30.232(a) deleted the former Part D requirements for
establishing a covered illness, as Congress abolished Part D and those
requirements are now irrelevant. In its place, the Department proposed
adding language to describe its current requirements for establishing a
covered illness under Part E. A claimant representative questioned why
the Department did not retain the requirements stated in Sec.
30.232(a)(2) through (4) of the current regulations. As the Department
explained in the preamble to the proposed rule, proposed Sec.
30.232(a) deleted references in that paragraph that referred to the
irrelevant requirements in former Part D. The labor organization
disagreed with the Department's removal of the reference to DOE's
Former Worker Program in current Sec. 30.232(a)(3). However, deleting
that reference does not mean that evidence from DOE's Former Worker
Program may not be used to establish that a claimant whose employment
has been established has been diagnosed with a covered illness under
Part E. Thus, the Department did not make any changes to Sec.
30.232(a) based on these comments in the final rule.
Proposed Sec. 30.232(a)(1) required the claimant to submit
``[w]ritten medical evidence containing a physician's diagnosis of the
employee's covered illness (as that term is defined in Sec. 30.5(s)),
and the physician's reasoning for his or her opinion regarding
causation'' to establish that an employee
[[Page 3032]]
has been diagnosed with a covered illness. An advocacy group, two
claimant representatives and the Advisory Board disagreed with this
general requirement in proposed Sec. 30.232(a)(1). One of those
claimant representatives suggested that the Department state instead
that any credible sources may be provided to prove causation of a
covered illness. The other claimant representative suggested that this
provision include the words ``aggravating and contributing to.'' The
advocacy group believed that proposed Sec. 30.232(a)(1) increased the
burden necessary to establish a sick worker's illness by requiring the
physician to opine on causation. The Advisory Board had a similar
concern, but suggested replacing the proposed text with text that would
be essentially identical. However, the Department notes that proposed
Sec. 30.232(a)(1) merely recognized a claimant's burden, as
authoritatively stated by the U.S. Supreme Court, to provide evidence
to meet the causation standard in section 7385s-4(c) of EEOICPA, and
the requirement that the physician diagnosing a condition opine on
causation. For those reasons, the Department is not persuaded that any
change to Sec. 30.232(a)(1) is needed in the final rule based on these
comments. The Department also updated a cross-reference in proposed
Sec. 30.232(a)(1) to reflect the changed location of the regulatory
provision defining the term covered illness from Sec. 30.5(r) to Sec.
30.5(s). A claimant representative noted that change. Because the
commenter did not either support or oppose the proposed regulation, or
offer ideas for changes, no change was made to that section in the
final rule based on this comment.
In addition to the requirement in proposed Sec. 30.232(a)(1),
proposed Sec. 30.232(a)(2) stated that a claimant must submit ``[a]ny
other evidence OWCP may deem necessary to show that the employee has or
had an illness that resulted from an exposure to a toxic substance
while working at either a DOE facility or a RECA section 5 facility.''
One advocacy group and the Advisory Board asserted that proposed Sec.
30.232(a)(2) unreasonably required a claimant to provide evidence
beyond a diagnosis of a covered illness. Another advocacy group asked
for clarification and further explanation of certain terms used in the
text in proposed Sec. 30.232(a)(2). The Department appreciates these
comments and understands the underlying concerns. However, because
proposed Sec. 30.232(a)(2) is materially identical to current Sec.
30.232(a)(4) and accurately reflects the claimant's burden of proof to
submit medical evidence of causation, which the Department believes is
consistent with the statute, the suggested changes to this provision
have not been adopted in the final rule.
In proposed Sec. 30.232(b), the Department updated a cross-
reference to reflect the changed location of the regulatory provision
defining the term covered illness from Sec. 30.5(r) to Sec. 30.5(s).
Two advocacy groups and an individual commented on other aspects of
proposed Sec. 30.232(b) that are no different from the existing Sec.
30.232(b). Because those commenters did not refer to changes that were
proposed in the NPRM, no amendments to Sec. 30.232(b) were made in the
final rule with respect to their comments.
Subpart D--Adjudicatory Process
General Provisions
In Sec. 30.300, the Department proposed adding language to explain
that a claimant may seek judicial review of a final decision issued by
FAB by filing an action in Federal district court, since the current
regulations do not provide this explanation. A claimant representative
agreed with the Department's change. An individual, however, suggested
that the Department add regulatory language establishing ``a process
for next-higher appeal within the DOL'' in proposed Sec. 30.300. This
same suggestion was made by several commenters on this section as it
appeared in the first interim final rule governing OWCP's
administration of EEOICPA that was published on May 25, 2001 (66 FR
28948). As it did when it subsequently published the first final rule
on December 26, 2002 (67 FR 78874), the Department continues to believe
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 reasons not previously considered by the Department
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, no change was made to Sec. 30.300 in
the final rule based on that comment.
In proposed Sec. 30.301(b)(1), the Department proposed amending
language that currently only recognizes postmark dates as evidence of a
timely request for the issuance of an administrative subpoena to also
recognize the date-markings of other carriers, since other delivery
options besides the U.S. Mail are widely used. A claimant
representative stated that ``the proposed and the current is the
same.'' However, since the commenter did not either support or oppose
the proposed regulation or offer ideas for changes, no change was made
to that paragraph in the final rule based on this comment. An advocacy
group requested that proposed Sec. 30.301(b)(1) be amended to allow
for the submission of subpoena requests through the Energy Document
Portal. This suggestion does not pertain to the changes in proposed
Sec. 30.301(b)(1). Because the advocacy group's comment did not refer
to a change that was proposed in the NPRM, no amendment was made in the
final rule based on this comment.
Recommended Decisions on Claims
Proposed Sec. 30.305(a) replaced references to ``HHS'' with
``NIOSH.'' A claimant representative agreed with that proposed change.
Therefore, no change was made to Sec. 30.305(a) in the final rule
based on that comment. In addition, the Department proposed modifying
the language in Sec. 30.306 to make recommended decisions more
understandable by mandating that they include a narrative discussion of
the district office's findings of fact and conclusions of law. A
claimant representative asked the Department to explain how OWCP will
``enforce the district offices to only list the facts and law in the
recommended decisions.'' Since proposed Sec. 30.306 merely codified
OWCP's current practice of including a narrative discussion in the
recommended decision of the district office's findings of fact and
conclusions of law, the comment addressed a matter of enforcement
rather than the substance of the proposed change. Thus, no change was
made to Sec. 30.306 in the final rule.
In the NPRM, the Department proposed moving the provisions in
current Sec. 30.307 to Sec. 30.308. Newly proposed Sec. 30.307(a)
informed readers that in most situations, OWCP will issue a single
recommended decision to all survivors who filed claims under Part B
and/or Part E of EEOICPA relating to the same deceased employee, while
newly proposed Sec. 30.307(b) recognized an exception to that policy
when another individual subsequently files a claim seeking the same
award referenced in Sec. 30.307(a). A claimant representative
commented that the proposed language was confusing and would deny a
subsequent survivor the opportunity to file a claim. However, proposed
Sec. 30.307(b) did not state that OWCP will deny a subsequently
claiming survivor
[[Page 3033]]
the opportunity to file such a claim, but instead explained that in
circumstances where a district office recommends that a subsequently
filed claim be denied, the same recommended decision will not address
the entitlement of the earlier claimants. Therefore, no change was made
to this section in the final rule.
Hearings and Final Decisions on Claims
In the NPRM, proposed Sec. 30.310(a) replaced references to
``HHS'' with ``NIOSH.'' In addition, the Department proposed amending
the language in Sec. 30.310(b) that only recognizes postmark dates as
evidence of the time a written objection is filed to also recognize the
date-markings of other carriers, since other delivery options besides
the U.S. Mail are widely used. The Department also changed the wording
in proposed Sec. 30.310(b) to reflect recent changes in how the
program receives and processes mail. A claimant representative had ``no
objections'' to the proposed changes in Sec. 30.310. An advocacy group
suggested that proposed Sec. 30.310(b) be amended to allow claimants
to submit hearing requests through the Energy Document Portal. As
stated above in response to this same request in relation to proposed
Sec. 30.301(b)(1), this suggestion does not address the proposed
change in that provision. Because the advocacy group's comment did not
refer to a change that was proposed in the NPRM, no amendment was made
to this paragraph in the final rule based on that comment.
Proposed Sec. 30.313(c) in the NPRM replaced references to ``HHS''
with ``NIOSH.'' A claimant representative and an individual commented
on other aspects of proposed Sec. 30.313(c) that were no different
from the existing Sec. 30.313(c). Because those comments did not refer
to changes that were proposed in the NPRM, no changes to Sec.
30.313(c) were made in the final rule with respect to those comments.
The Department also proposed amending Sec. 30.314(a), which
currently provides a FAB reviewer with the discretion to conduct
hearings by telephone or teleconference, to also allow the FAB reviewer
to conduct hearings by videoconference or other electronic means. A
claimant representative stated that there was ``no change'' from the
current regulations. Because the commenter did not either support or
oppose the proposed regulation or offer ideas for changes, no change
was made to that paragraph in the final rule based on this comment.
Proposed Sec. 30.314(b) included new language to provide the FAB
reviewer with the discretion to mail a hearing notice less than 30 days
prior to the hearing if the claimant and/or representative waives the
30-day notice period in writing. A claimant representative agreed with
the change in proposed Sec. 30.314(b). An advocacy group suggested
that OWCP allow claimants more time to prepare for a hearing if needed,
and more time to present evidence at hearings. However, the advocacy
group's comments did not pertain to any of the changes made in proposed
Sec. 30.314(b). Because the advocacy group's comment did not refer to
a change that was proposed in the NPRM, no amendment was made in the
final rule based on this comment.
Proposed Sec. 30.315(a) added a provision prohibiting a claimant
or representative from making more than one request to reschedule a
hearing, since repeated requests to cancel and reschedule hearings can
have a negative impact on the claim adjudication process for other
claimants. A claimant representative agreed with the change. The labor
organization asked whether and how OWCP will notify claimants of this
provision prior to their hearing date. The Department does not believe
that the issue of notification suggested by the latter comment is
appropriate for a regulation, since it involves a purely internal
procedure. Thus, no change was made to Sec. 30.315(a) in the final
rule.
As the Department explained above in the ``Background of This
Rulemaking,'' it proposed to modify Sec. 30.318(a) to describe the
potential for NIOSH to provide consultation in FAB's consideration of
objections to final dose reconstruction reports. This consultation
process will provide for a more complete consideration of the
claimant's objections. The Department also proposed to clarify OWCP's
obligation to consider objections to how it calculates the probability
of causation in new Sec. 30.318(b). One claimant representative
commented that the changes in proposed Sec. 30.318 were unnecessary.
However, the Department believes that the changes to that section will
alleviate the frustration experienced by claimants and FAB reviewers in
determining whether an objection to NIOSH's final dose reconstruction
report concerned ``methodology'' or ``application.'' The Department
further believes that NIOSH's increased involvement in FAB's
consideration of objections to NIOSH's final dose reconstruction
reports will make this process more efficient and transparent. For
those reasons, no changes were made to Sec. 30.318 in the final rule
based on this comment. Another claimant representative suggested that
NIOSH should indicate in its final dose reconstruction report the
calculated recommended probability of causation. While the Department
agrees that this suggestion has merit, it is nonetheless contrary to
how the President assigned responsibility for this task in E.O. 13179,
and the suggested change was not made to Sec. 30.318(b) in the final
rule.
In the NPRM, the Department proposed to add language in Sec.
30.319(b), which currently only recognizes postmark dates as evidence
of the time a request for reconsideration is filed, to also recognize
the date-markings of other carriers, since other delivery options
besides the U.S. Mail are widely used. The Department also changed the
wording in proposed Sec. 30.319(b) to reflect recent changes in how
the program receives and processes mail. A claimant representative
commented that the changes in proposed Sec. 30.319(b) were
unnecessary. However, as stated above, other carrier's date markings
besides postmarks exist and therefore the Department believes that it
is necessary to recognize them for timeliness purposes. Also, since the
program now receives and processes mail through a central mail room,
the reference in current Sec. 30.319(b) that FAB receives mail is no
longer accurate. Thus, no changes were made to Sec. 30.319(b) in the
final rule based on this comment.
Reopening Claims
Proposed Sec. 30.320(b) allowed claimants to request a reopening
based on new medical evidence diagnosing a medical condition. Two
advocacy groups and a health care provider suggested that the new
language proposed in Sec. 30.320(b) be amended to state that the
Director for Energy Employees Occupational Illness Compensation will
reopen any claim in instances when it failed to take into account all
relevant evidence in reaching their determination on eligibility.
Another advocacy group asserted that the Department's change in
proposed Sec. 30.320(b) was unnecessary because the Director has the
discretion to reopen a claim at any time. Both of those comments go
beyond the proposed change in Sec. 30.320(b). Because those commenters
referred to something that was not changed in the NPRM, no amendment to
Sec. 30.320(b) was made in the final rule with respect to their
comments. A claimant representative commented that she was unsure
whether OWCP will grant a reopening request based on new medical
evidence. Proposed Sec. 30.320(b) answered this question in the
affirmative by explicitly stating that the Director will reopen a
[[Page 3034]]
claim in instances when, in her discretion, she determines that a
claimant has submitted new medical evidence that diagnoses a medical
condition and is material to the claim. Under these circumstances, no
amendment was made to Sec. 30.320(b) in the final rule as a result of
those comments.
Subpart E--Medical and Related Benefits
Medical Treatment and Related Issues
In the NPRM, the Department proposed to move language in current
Sec. 30.400(a) regarding the payment to reimburse out-of-pocket costs
of obtaining covered medical treatment to survivors to a new paragraph.
It also proposed to add a new statement to that paragraph clarifying
that if there is any doubt about whether a contemplated service,
appliance or supply is or will be necessary to treat an accepted
illness, the employee should consult OWCP's bill processing agent prior
to obtaining it. An advocacy group suggested that the new language in
proposed Sec. 30.400(a) be amended to state that employees may contact
OWCP directly to ascertain whether a contemplated medical treatment is
considered to be necessary. However, such questions are more
efficiently answered by contacting OWCP's bill processing agent, as is
the current practice. Therefore, no change was made to Sec. 30.400(a)
in the final rule as a result of this comment. Also, a claimant
representative and the labor organization commented on aspects of
proposed Sec. 30.400(a) that did not relate to the proposed changes in
that paragraph. Because those comments did not refer to a change that
was proposed in the NPRM, no amendment was made to Sec. 30.400(a) in
the final rule with respect to them.
The Department also proposed to make a number of changes to Sec.
30.400(c). First, the Department proposed adding new language in that
paragraph to explain the current qualifications that must be met before
hospitals and providers of medical services or supplies may furnish
appropriate services, drugs, supplies and appliances to covered
employees. A claimant representative agreed with the Department's
change in that paragraph. Two health care providers believed that the
proposed language in Sec. 30.400(c) indicating that specified
providers must possess ``all applicable licenses required under State
law'' would obligate OWCP to monitor providers' licensure. One of those
same two health care providers proposed amending that provision to
specify that a provider must possess all applicable licenses required
under state law ``as determined by the applicable State regulatory
body.'' However, the only occasions when OWCP is concerned with a
provider's possession of state-required licenses is either at the time
of enrollment or exclusion. The Department believes that no further
specificity is required in this provision since the proposed language
explicitly states that state law governs licensure requirements.
Therefore, the above suggestions have not been adopted in the final
rule.
In addition, the NPRM proposed adding language in Sec. 30.400(c)
authorizing OWCP to offset the cost of prior rental payments against
the future purchase of an appliance or supply. A claimant
representative objected to this provision, and suggested that OWCP had
other means available to it to control its costs in this area. However,
this practice has been in effect since EEOICPA Bulletin No. 13-03 was
issued in 2013, and has not proved problematic. Accordingly, no changes
were made in the final rule as a result of this comment. The Department
also proposed adding authority in Sec. 30.400(c) for it to provide
refurbished equipment where appropriate. The same claimant
representative and a health care provider objected to this provision,
and commented that it should be removed because such appliances may not
work properly. However, these comments presumed that refurbished
appliances would be unreliable without providing any data in support of
that position. Therefore, no changes were made in the final rule in
response to these comments. Lastly, in proposed Sec. 30.400(c), the
NPRM proposed codifying OWCP's inherent authority to contract with
specific providers to provide non-physician services and appliances to
beneficiaries. Three health care providers, two advocacy groups and a
claimant representative objected to this provision. All of these
commenters, except one of the two advocacy groups, questioned the
Department's statutory authority for this proposed change, while the
remaining advocacy group believed that the proposal was too vague.
However, section 7384t(b)(2) of EEOICPA states that a physician
initially selected by a beneficiary must ``provide medical services,
appliances, and supplies under this section in accordance with such
regulations and instructions as the President considers necessary.''
Since OWCP has been delegated the President's authority under section
7384t(b)(2), it clearly has the authority to regulate in this manner.
Accordingly, no changes were made to Sec. 30.400(c) in the final rule
as a result of any of these comments.
As stated above, the Department proposed to move language in
current Sec. 30.400(a) regarding payments to reimburse out-of-pocket
costs of obtaining covered medical treatment to survivors to a new
paragraph, proposed Sec. 30.400(d), in order to bring attention to
that longstanding policy. A claimant representative agreed with the
Department's new proposed Sec. 30.400(d). Accordingly, no changes were
made to this paragraph in the final rule.
In the NPRM, the Department proposed reorganizing existing Sec.
30.403 into three separate paragraphs to better focus the section on
OWCP's current methods for pre-authorization of and payment for claims
under section 7384t of EEOICPA for home health care, nursing home, and
assisted living services, which comprise the vast bulk of services of
this type being provided. Proposed Sec. 30.403(a) incorporated the
descriptive text in current Sec. 30.403 with minor modifications, and
proposed Sec. 30.403(b) described OWCP's general requirements for
payment of a claim for nursing home and assisted living services. A
claimant representative generally agreed with the Department's changes
in proposed Sec. 30.403(a) and (b), but that same claimant
representative and a health care provider objected to the new language
in those paragraphs stating that authorization and payment for home
health care services are ``subject to the pre-authorization
requirements described'' in proposed Sec. 30.403(c). For the reasons
described below in response to comments in proposed Sec. 30.403(c),
the Department is not persuaded that it is necessary to remove that
language in Sec. 30.403(a) and (b) in the final rule.
Proposed Sec. 30.403(c) set out the particular pre-authorization
process used to file an initial claim for home health care, nursing
home, and assisted living services. The Department received 39 comments
on this proposed paragraph (24 comments were from physicians, eight
comments were from individuals, four comments were from three health
care providers, two comments were from an advocacy group and one
comment was from a claimant representative). While one of the
individuals and the claimant representative agreed with the
Department's changes in proposed Sec. 30.403(c), the remainder of the
commenters requested that the Department retain the language in current
Sec. 30.403 because they believe that the new procedures would be too
burdensome for claimants and
[[Page 3035]]
providers, and would cause unnecessary delays in the medical treatment
of EEOICPA beneficiaries. However, the processes set forth in proposed
Sec. 30.403(c) were merely a compilation of the current processes for
pre-authorization, and will improve communications between the program
and the beneficiary, and between the program and the treating
physician. Currently, OWCP does not require beneficiaries to identify
the name of their treating physician at the time that home health care
is requested, and believes that obtaining this information up front
will greatly enhance efficiency because it will be able to communicate
with the physician directly, if needed. Furthermore, OWCP currently
requires that the beneficiary's physician submit a letter of medical
necessity and verify that a timely face-to-face physical examination of
the beneficiary took place, and proposed Sec. 30.403(c) merely
recognizes this current process. Thus, no changes were made to Sec.
30.403(c) based on these comments.
In the NPRM, proposed Sec. 30.405(b) and (c) clarified OWCP's
policy for approving or denying an employee's request to change
treating physicians. The language in current Sec. 30.405(b) and (c)
states that OWCP may approve or deny a certain type of request to
change physicians based on the ``sufficiency'' of the request, while
the proposed language in those paragraphs stated that OWCP will approve
or deny such a request based on the credibility of the request, and
whether it is supported by minimally persuasive evidence. The
Department received 102 comments that objected to the proposed changes
in Sec. 30.405 (from 90 individuals, three advocacy groups, three
claimant representatives, two health care providers, two unknown
persons or organizations, one labor organization and the Advisory
Board). Out of these, 54 comments interpreted proposed Sec. 30.405(b)
and (c) to mean that a beneficiary's right to change physicians was
being eliminated, 26 other comments interpreted those paragraphs to
mean that a beneficiary's right to initially choose a physician was
being eliminated, another 14 comments believed that those paragraphs
eliminated both of those rights, and the final group of eight comments
opposed the proposed language without further explanation.
The Department notes that section 7384t(b)(2) of EEOICPA allows a
beneficiary the opportunity to initially choose a physician to provide
medical services, appliances and supplies, and that statutory provision
is reflected in the text of existing Sec. 30.405(a). Nothing in
proposed Sec. 30.405(b) and (c) changed existing Sec. 30.405(a),
which also recognizes that treating physicians may, and often do, refer
their patients to specialists for further medical care. Proposed Sec.
30.405(b) and (c) merely clarified the standards that OWCP may use
under its existing authority to approve or deny certain requests to
change a treating physician. Although most of the 102 comments
submitted a general objection to the changes in proposed Sec.
30.405(b) and (c), the following commenters submitted comments with
specific suggestions on those proposed provisions. One of the three
advocacy groups, one of the three claimant representatives and both of
the health care providers suggested that the Department further define
the terms and circumstances under which it would deny a beneficiary's
request to change a treating physician. However, the Department
believes that these are properly matters of administrative discretion
and would be too confusing to define and of little utility to
beneficiaries. A different claimant representative suggested that the
proposed language in these paragraphs be replaced with language stating
that a beneficiary may select and utilize any physician, at any time,
so long as that physician is an approved provider under the program.
Consistent with the above explanation, such a proposal goes well beyond
the right of initial choice found in section 7384t(b)(2) of EEOICPA,
and was not proposed in the NPRM. The Advisory Board suggested that the
Department eliminate the changes in proposed Sec. 30.405(b) and (c),
and instead state in those paragraphs that ``The claimant may cite
personal preference as a valid reason to change physicians.'' However,
this suggestion goes beyond the change proposed, which clarified that
OWCP will approve or deny a request to change physicians based on the
credibility of the request and whether it is supported by minimally
persuasive evidence, instead of the ``sufficiency'' of the request, as
is stated in the existing regulation. In light of the above discussion,
no changes were made to this section in the final rule as a result of
these 102 comments.
Directed Medical Examinations
The Department proposed to amend Sec. Sec. 30.410(c) and 30.411(d)
to memorialize OWCP's existing authority to administratively close an
employee's claim when he or she refuses to attend a second opinion
examination or a referee medical examination, respectively. A claimant
representative agreed with the changes in proposed Sec. Sec. 30.410(c)
and 30.411(d). Another claimant representative suggested that the
Department amend proposed Sec. Sec. 30.410(c) and 30.411(d) to state
that a claimant may utilize the adjudicatory process described in
subpart D of the regulations if their claim is administratively closed,
and include provisions allowing the claimant to cancel and request
rescheduling of those examinations upon a showing of good cause. Two
health care providers questioned the propriety of proposed Sec. Sec.
30.410(c) and 30.411(d) and suggested amending these provisions to
state that OWCP will pay for reasonable travel accommodations, will
hold examinations in facilities which accommodate the medical needs of
beneficiaries, allow for adjudication under subpart D and include in
the provisions language that OWCP will give 30 days notice of an
examination and limit the employee's travel to a 100-mile radius, prior
to assessing if the employee ``refused'' an examination. OWCP notes
that its procedures and other regulations not part of this rulemaking
already provide that OWCP will pay for the cost of these examinations,
including travel and accommodations, allow their cancellation for good
cause, and direct that these examinations be held in facilities that
accommodate the individual's medical needs and are within a reasonable
distance from the individual's residence (almost always within a 100-
mile radius). It is not always possible to schedule examinations at
locations within that radius, such as cases involving individuals who
reside in remote areas, but the examination must still be within a
reasonable distance and these same protections apply. Nevertheless, in
situations when a directed medical examination is necessary, OWCP is
unable to make a determination on a claimant's eligibility for benefits
until completion of such examination. Accordingly, administratively
closing the claim until that essential development step takes place is
a reasonable action that can be resolved by employee cooperation. The
Department further notes that the decision whether or not to
administratively close a claim properly involves a question of
administrative discretion, and that as such, the Department has decided
not to identify specific factors for such circumstances in the
regulations. For those reasons, the suggested changes were not made to
Sec. Sec. 30.410(c) and 30.411(d) in the final rule. Finally, an
advocacy group asked the Department to clarify what it means by
``pending matters'' in proposed
[[Page 3036]]
Sec. Sec. 30.410(c) and 30.411(d). The Department believes that the
term must be broad enough to retain maximum administrative discretion
because the matters that OWCP may need to suspend under these sections
will likely be unique to the case at hand. Thus, the Department has not
made this last suggested change to Sec. Sec. 30.410(c) and 30.411(d)
in the final rule.
Medical Reports
In the NPRM, proposed Sec. 30.416(a) removed language that a
physician's stamp will be accepted in lieu of his or her signature on a
medical report, and specified that the physician's handwritten or
electronic signature should be on his or her medical report. Two
claimant representatives suggested that it was unreasonable for OWCP to
require a physician's handwritten or electronic signature on a medical
report. However, this change was made to align with the requirements of
other programs administered by OWCP, as well as the requirements of the
Centers for Medicare and Medicaid Services (CMS) within HHS. Thus, no
change was made to Sec. 30.416(a) in this final rule based on those
comments. A third claimant representative mistakenly asserted that
proposed Sec. 30.416(a) was identical to existing Sec. 30.416(a), and
therefore questioned why it appeared in the NPRM. However, because the
claimant representative's comment did not pertain to something that was
changed in the NPRM, no amendment was made in the final rule with
respect to this comment.
Subpart F--Survivors; Payments and Offsets; Overpayments
Survivors
In the NPRM, the Department proposed amending the first sentence in
Sec. 30.500(a)(2) to memorialize OWCP's policy determination that a
``child'' under Parts B and E of EEOICPA means only a biological child,
a stepchild or an adopted child of a deceased covered Part B or Part E
employee. Also, the Department proposed to move the statutory
definition of a ``covered child'' found in the second sentence of
existing Sec. 30.500(a)(2) to its own new paragraph. A claimant
representative asserted that the changes in proposed Sec. 30.500(a)(2)
were unnecessary. However, since the Department believes that these
changes are substantive in nature and add clarity, no change was made
to Sec. 30.500(a)(2) in the final rule as a result of this comment.
As noted above, the Department proposed in the NPRM to move the
statutory definition of a ``covered child'' in current Sec.
30.500(a)(2) to a new paragraph, proposed Sec. 30.500(c)(1), in order
to increase the understandability of this important definition. The
Department also proposed adding a sentence in proposed Sec.
30.500(c)(1) to explain that a child's marital status or dependency on
the covered employee for support is irrelevant to his or her
eligibility for benefits as a ``covered child'' under Part E. A
claimant representative agreed with the changes in proposed Sec.
30.500(c)(1). Therefore, no change was made to Sec. 30.500(c)(1) in
the final rule. In addition, proposed Sec. 30.500(c)(2) further
defined the statutory term incapable of self-support to mean that the
child must have been physically and/or mentally incapable of self-
support at the time of the covered employee's death. An individual
objected to the Department's proposed definition as too vague. The
Department does not agree that the proposed definition at issue is
vague, however, and believes that the text added to this definition in
proposed Sec. 30.500(c)(2) highlights that determinations made on this
point will focus on objective factual and/or medical evidence, while
still permitting OWCP to retain the maximum amount of discretion needed
for it to adjudicate these sorts of claims on their individual facts.
Furthermore, the Department notes that this approach has met with
judicial approval. See Watson v. Solis, 693 F.3d 620 (6th Cir. 2012).
Accordingly, no change was made to Sec. 30.500(c)(2) in the final
rule.
In proposed Sec. 30.501(a) and (b), the Department updated a
cross-reference to reflect the changed location of the regulatory
provision defining the term survivor from Sec. 30.5(gg) to Sec.
30.5(hh). In proposed Sec. 30.502, the Department updated a cross-
reference to reflect the changed location of the statutory definition
of a ``covered child'' from Sec. 30.500(a)(2) to Sec. 30.500(c)(1). A
claimant representative noted both of these updated cross-references.
However, because the commenter did not either support or oppose the
proposed regulations or offer ideas for changes, no change was made to
either section in the final rule based on her comments.
Payment of Claims and Offset for Certain Payments
In the NPRM, the Department proposed amending current Sec.
30.509(c), which references the American Medical Association's Guides
to the Evaluation of Permanent Impairment (AMA's Guides) to
specifically reference the 5th Edition of the AMA's Guides. Both a
claimant representative and the Advisory Board questioned the wisdom of
amending current Sec. 30.509(c) to specifically reference the 5th
Edition, since this would reduce the ability to change this in the
future absent another rulemaking. The Department agrees with these
commenters and acknowledges that OWCP may wish to move to another
edition in the future. Accordingly, this change in proposed Sec.
30.509(c) was not made in this final rule. An individual commented on
other aspects of proposed Sec. 30.509(c) that are no different from
the existing Sec. 30.509(c). Because the individual's comment did not
refer to a change that was proposed in the NPRM, no amendment was made
to Sec. 30.509(c) in the final rule with respect to this comment.
Subpart G--Special Provisions
Representation
In the NPRM, the Department proposed amending Sec. 30.600 to state
that a representative does not have the authority to sign either Form
EE-1 or Form EE-2, to be consistent with proposed Sec. Sec. 30.100 and
30.101. Four claimant representatives and one advocacy group suggested
that it was unreasonable for the Department to eliminate a
representative's authority to sign these initial claim forms in
proposed Sec. 30.600(c)(2), citing reasons such as convenience and
contractual arrangements. One of those same claimant representatives
asserted instead that a properly appointed authorized representative
ought to have the authority to sign all documents relating to a claim.
The Department discussed above, in its response to comments it received
on proposed Sec. Sec. 30.100 and 30.101, the reasons why it believes
that a claimant's signature is needed on his or her claim form. Because
those same reasons apply here, the Department did not make any change
to proposed Sec. 30.600(c)(2) as a result of these comments. The same
one of these four claimant representatives and the same advocacy group
noted that there was no provision in proposed Sec. 30.600(c)(2)
allowing an attorney-in-fact to sign a claim form on a claimant's
behalf. As discussed above in relation to proposed Sec. Sec. 30.100
and 30.101, OWCP has and will continue to accept claim forms signed by
a valid attorney-in-fact. Any individual other than a claimant may sign
the claim form if they have the legal authority to do so, and have not
otherwise been excluded under proposed Sec. 30.600(c)(2) of the
regulations. Therefore, no change was made to this section as a result
of this second group of comments.
[[Page 3037]]
Proposed Sec. 30.601 added language to provide that a
representative must comply with OWCP's conflict of interest policy.
Three advocacy groups, two health care providers and a claimant
representative disagreed with this requirement in proposed Sec.
30.601. One of those advocacy groups asserted that such policy removes
a class of potential authorized representatives without proof of any
wrongdoing, restricts home health care workers from being appointed as
authorized representatives in situations when home health care benefits
would not be available (such as for survivors), and that the Department
should address its fraud concerns in other ways. That same advocacy
group and the second advocacy group believed that some elderly sick
workers only have their nurses to represent them, and any limitation on
who they may select to represent them would be unreasonable or would
negatively affect their health. The third advocacy group stated that
the Department's proposal to limit a claimant's ability to designate a
representative creates an unnecessary burden on claimants since it is
already difficult for claimants to find representatives willing to
provide assistance, and that OWCP did not provide any rationale for the
change. Both of the health care providers disagreed with the conflict
of interest policy because the prohibition against representatives
having outside financial interests unreasonably bars health care
providers (who have experience navigating complex Federal benefit
programs) from advocating for a claimant, and suggested addressing this
in the regulations or removing it. Two of the advocacy groups and one
of the health care providers believed that other health benefit
programs are not as restrictive. Finally, the claimant representative
did not offer any reasons for her disagreement with this proposed
change, nor did she suggest any changes. The two health care providers,
the claimant representative and one of the advocacy groups asked the
Department to specifically state in the regulations the standards it
has adopted. The Department is not persuaded by any of the reasons
given by these commenters to abandon the proposed application of the
conflict-of-interest policy in this context, because the aim of the
policy is to keep providers from straying outside of their proper roles
as providers of medical treatment. Also, the Department believes that
its policy will help it safeguard our vulnerable, often aged, claimant
population by lessening the chance that an outside financial interest
of an authorized representative could interfere with, or be contrary
to, the best interests of the claimant. The Department agrees, however,
with the commenters' suggestion that a basic statement of such policy
should be incorporated in this provision. The Department has therefore
added a basic statement of OWCP's conflict of interest policy to Sec.
30.601 in the final rule.
Proposed Sec. 30.603(a) clarified that a representative may charge
a claimant for costs and expenses related to a claim in addition to a
fee for his or her services within the limitations specified in Sec.
30.603(b). A claimant representative agreed with this change in
proposed Sec. 30.603(a). Under these circumstances, no change was made
to that provision in the final rule.
Effect of Tort Suits Against Beryllium Vendors and Atomic Weapons
Employers
In the NPRM, proposed Sec. Sec. 30.617(b)(2) and 30.618(c)(2)
replaced references to ``HHS'' with ``NIOSH.'' A claimant
representative asserted that the changes to these two sections were
unnecessary. The Department, however, has replaced the term ``HHS''
with ``NIOSH'' throughout the NPRM to correctly reflect HHS's
delegation of its exclusive control of the portion of the claims
process for radiogenic cancer to NIOSH in 42 CFR 82.1. Accordingly, no
changes were made in the final rule with respect to this comment.
Subpart H--Information for Medical Providers
Medical Records and Bills
In the NPRM, the Department proposed amending Sec. 30.700 to
describe, for the first time, OWCP's process for enrolling providers
with its bill processing agent, as well as the agent's automated bill
processing and authorization systems. Proposed Sec. 30.700(a) required
that a provider seeking to enroll certify that it has satisfied all
applicable Federal and state licensure and regulatory requirements,
that it will maintain documentation showing that it satisfies those
requirements, and that it will notify OWCP immediately if any such
information changes. A claimant representative questioned whether the
Department's changes in proposed Sec. 30.700(a) were necessary and
argued that they placed undue hardship on providers. The Department
does not agree that the changes in proposed Sec. 30.700(a) cause any
hardship, given that providers have been adhering to the described
requirements since the inception of the program in 2001. While these
requirements have been in existence since that time, the Department
continues to prefer describing its current provider processes in a
regulatory format. A health care provider suggested amending proposed
Sec. 30.700(a) to specify that Federal and state license requirements
are to be determined by the applicable Federal or state regulatory
body. However, the fact that the requirements are determined by the
applicable Federal or state regulatory body is irrelevant to this
provision. As explained in the Department's discussion of a similar
comment received in connection with proposed Sec. 30.400(c), the only
occasions when OWCP is concerned with a provider's possession of
required licenses is either at the time of enrollment or exclusion. The
Department believes that no further specificity is required in this
provision since the proposed language explicitly states that Federal
and state law governs any pertinent licensure requirements. Therefore,
no changes to Sec. 30.700(a) were made in the final rule based on
these comments.
Proposed Sec. 30.700(b) recognized OWCP's current practice of
requiring providers to seek pre-authorization for certain services. A
health care provider felt that proposed Sec. 30.700(b) should be
removed because it conflicted with unspecified provisions in EEOICPA,
would result in delayed care, and presented the likelihood that health
care providers seeking pre-authorization might violate unspecified
state laws. The Department is not persuaded by this vague and
unspecific comment, which appears to be based on pure speculation. A
second health care provider, an advocacy group and a claimant
representative suggested that the Department provide more detail in
proposed Sec. 30.700(b) to describe the pre-authorization process, and
list the specific procedures that require pre-authorization. However,
the requested level of specificity in these comments is not appropriate
for regulations, and the processes and procedures at issue are more
appropriately addressed through provider manuals, the bill processing
agent's web page and other explanatory materials. For the above
reasons, no changes were made to Sec. 30.700(b) in the final rule.
Proposed Sec. 30.700(c) required that a provider submit ``all
medical bills'' to OWCP through its bill processing portal. A health
care provider asked the Department to clarify whether it intended to
use electronic billing as the sole billing method in proposed Sec.
30.700(c). The commenter was
[[Page 3038]]
concerned that supporting medical evidence can be voluminous, and
asserted that it could be more efficiently submitted via U.S. Mail. The
Department notes, however, that the regulatory requirement to support
all bills for medical treatment with supporting medical reports or
office/treatment notes has been in existence since 2001 in existing
Sec. 30.701(a). As to whether OWCP and/or its bill processing agent
will allow exceptions to this requirement for case-specific
circumstances is beyond the scope of proposed Sec. 30.700(c), and thus
no change was made to this paragraph in the final rule based on this
comment.
In the NPRM, proposed Sec. 30.701(a) recognized that OWCP may
withhold payment for services until the required medical evidence
described in proposed Sec. 30.700 is provided, and clarified that
charges for medicinal drugs dispensed in a physician's office must be
reported on Form OWCP-1500 or CMS-1500. An advocacy group and a
claimant representative were concerned that the language in proposed
Sec. 30.701(a) might force beneficiaries to pay bills that OWCP
refuses to pay, and might ultimately leave beneficiaries without
necessary care. This scenario appears to be dependent upon the
particular contractual relationships between providers and their
clients, and does not therefore involve OWCP in a meaningful way. The
same claimant representative also suggested that proposed Sec.
30.701(a) include a provision allowing providers to obtain
administrative and/or judicial review if OWCP withholds payment, and
allow providers to receive interest on a service that was provided, yet
not paid for in a timely manner. The Department notes that a provider
already has the ability to seek judicial review of OWCP's decision to
withhold payment for services, and therefore does not require a
regulatory acknowledgment of that ability. As for the payment of
interest, the Department notes that any such payment would be governed
by the Prompt Payment Act and is thus not within the purview of this
rulemaking. Accordingly, no changes were made to Sec. 30.701(a) in the
final rule based on these comments.
Proposed Sec. 30.701(b) described OWCP's existing discretion to
determine which codes to use in the automated billing process managed
by its agent, and to create and supply specific codes to be used by
providers when either seeking authorization or submitting a bill for
payment. In addition, proposed Sec. 30.701(b) noted that OWCP will
return and/or deny payment for a bill if no code is submitted. A
claimant representative feared that the language in proposed Sec.
30.701(b) recognizing this discretion might create inconsistencies and
delays. This comment is merely conjectural, however, and is not
consistent with OWCP's experience. The same claimant representative
objected to the proposed language that OWCP will return and/or deny
payment for a bill if no code is submitted, and felt that this action
would be statutorily impermissible. On the contrary, this reasonable
and fiscally prudent practice has been in place since the beginning of
the program in 2001, and the Department is not persuaded by the
commenter that it should be changed. Accordingly, no changes were made
to this paragraph in the final rule.
Proposed Sec. 30.701(c)(1)(ii) alerted providers that in the
future, OWCP may adopt certain provisions contained within the Home
Health Prospective Payment System, which was devised by CMS. Three
health care providers, three advocacy groups and an individual objected
to the possible adoption of any aspect of that system, alleging that it
would not be a good fit for the EEOICPA beneficiary population, while
one claimant representative agreed with that proposed change. The
Department notes that this provision merely stated that OWCP may adopt
the system, or parts of that system, in the future. Since CMS currently
uses the system, providers should already be prepared for these changes
if they are ultimately implemented by OWCP. Therefore, no change was
made to proposed Sec. 30.701(c)(1)(ii) in the final rule as a result
of these comments. In proposed Sec. 30.701(c)(3), the Department
stated that nursing home charges for appliances, supplies or services
``shall be subject to any applicable OWCP fee schedule.'' A claimant
representative agreed with the Department that a fee schedule for
nursing home charges would probably be necessary. An advocacy group
suggested instead that the Department initiate a new rulemaking at the
point in time that it decides to implement such a fee schedule.
However, it is within OWCP's discretion to use such a fee schedule, and
proposed Sec. 30.701(c)(3) merely announces that OWCP may subject
nursing home charges to a fee schedule in the future. Therefore, no
amendments were made to Sec. 30.701(c)(3) in the final rule.
Proposed Sec. 30.701(d) clarified that providers must adhere to
accepted industry standards when billing, and that billing practices
such as upcoding and unbundling are not in accord with those industry
standards. A claimant representative agreed with the Department's
proposal in Sec. 30.701(d) to use ``industry standards'' for billing
of services, and commented that ``industry standards'' should be
mandated for all medical benefits. Accordingly, no change was needed
for Sec. 30.701(d) in the final rule.
Proposed Sec. 30.701(e) described OWCP's current practice of
rejecting a bill that does not conform to the requirements in Sec.
30.701, after which the rejected bill is returned to the provider to be
corrected and resubmitted. Proposed Sec. 30.701(e) also clarified
OWCP's policy that a bill must contain the provider's handwritten or
electronic signature when required by the pertinent billing form, and
removed language that a provider's stamp will be accepted in lieu of
his or her signature on the bill. An advocacy group was concerned that
the proposed language in Sec. 30.701(e) that OWCP may deny a non-
conforming bill could force beneficiaries to pay bills that OWCP
refuses to pay, and will ultimately leave the beneficiary without
necessary care. However, as noted above, this scenario appears to be
dependent upon the particular contractual relationships between
providers and their clients, and does not therefore involve OWCP in a
meaningful way. A claimant representative suggested that the Department
state in proposed Sec. 30.701(e) that a provider may seek review of a
disputed bill by an administrative law judge. Once again, the
Department notes that a provider has the ability to seek judicial
review of a disputed bill, and a regulatory acknowledgment of that
ability is not necessary. Two other claimant representatives argued
that it was unreasonable for the Department to amend Sec. 30.701(e) to
require a physician's handwritten or electronic signature, and no
longer accept signature stamps. However, as explained in the
Department's discussion on similar comments received in connection with
proposed Sec. 30.416(a), this change was made to conform with the
requirements in other programs within OWCP, and with the requirements
of CMS. Thus, no change was made to Sec. 30.701(e) as a result of
these comments.
In the NPRM, proposed Sec. 30.702 clarified how an employee can
seek reimbursement for out-of-pocket expenses incurred for the medical
treatment of an accepted illness. Proposed Sec. 30.702(a) added a
reference to Forms OWCP-04 and UB-04 to clarify that those forms must
be used to request reimbursement of hospital charges. An advocacy group
felt that the current requirement in existing Sec. 30.702(a) that an
employee submit Form OWCP-1500 or CMS-1500 to
[[Page 3039]]
request reimbursement for professional medical services is too
burdensome. However, this comment does not refer to a change in
proposed Sec. 30.702(a). Because the advocacy group's comment did not
refer to a change that was proposed in the NPRM, no amendment was made
in the final rule with respect to this comment. The Department also
added language in proposed Sec. 30.702(a)(1) to provide that OWCP will
reject a reimbursement request if a provider does not indicate the code
or a description of the service on the billing form, after which the
beneficiary would have to resubmit a corrected bill. An advocacy group
and a claimant representative objected to this provision, but did not
suggest a change to the proposed language in the NPRM. This requirement
has been in effect since the beginning of the program, and the
Department sees no reason to change this established practice based on
these comments.
Proposed Sec. 30.702(d) stated that billing forms submitted by
beneficiaries with their requests for reimbursement must bear the
handwritten or electronic signature of the provider. The Department
also proposed to amend language in existing Sec. 30.702(d), which
currently provides that OWCP's decision regarding reimbursement to a
beneficiary for out-of-pocket expenses is final, to instead provide
that OWCP will issue a letter decision in such circumstances. An
advocacy group and two claimant representatives objected to the new
language in proposed Sec. 30.702(d) concerning a provider's signature.
However, this change was made to conform with similar requirements in
other programs administered by OWCP, and with the requirements of CMS,
as discussed above in connection with the comments received by the
Department on proposed Sec. 30.416(a). Another claimant representative
agreed with the change in proposed Sec. 30.702(d) regarding OWCP's
issuance of a letter decision. Therefore, no changes were made to
proposed Sec. 30.702(d) as a result of these four comments.
Medical Fee Schedule
In the NPRM, the Department proposed amending existing Sec.
30.705(a) to provide that ``devices and supplies,'' in addition to
``health services'' as currently stated in that paragraph, are covered
by the OWCP fee schedule. A claimant representative agreed with the
Department's change in proposed Sec. 30.705(a). Therefore, no changes
were made to that paragraph in the final rule. The Department also
proposed modifying existing Sec. 30.705(b) to provide that OWCP may
require nursing homes to abide by a fee schedule. A claimant
representative and two advocacy groups asserted that it was premature
for the Department to add that language to proposed Sec. 30.705(b).
The same claimant representative and one of those advocacy groups
suggested that the Department initiate a separate rulemaking if it
decides to adopt this fee schedule. The Department notes, however, that
it is within OWCP's discretion to adopt such a fee schedule, and
proposed Sec. 30.705(b) merely announces that OWCP may decide that
nursing homes will be covered by a fee schedule in the future.
Accordingly, no amendment was made to Sec. 30.705(b) in the final
rule. In proposed Sec. Sec. 30.706 and 30.707, the Department proposed
updating the indices used to determine maximum fees. A claimant
representative agreed with the changes to those provisions. Therefore,
no changes were made to those sections in the final rule.
In the introductory text in proposed Sec. 30.709, the Department
added language that payment will be made for medicinal drugs ``[u]nless
otherwise specified by OWCP.'' Also in the introductory text in
proposed Sec. 30.709, the Department added language that OWCP may
contract for, or require the use of, specific providers for medicinal
drugs. A claimant representative felt that the new language ``[u]nless
otherwise specified by OWCP'' is ambiguous and requires further
explanation. The Department added that language to clarify its
discretionary authority in this unsettled area of medical costs, and is
not persuaded that any change to that section is required in the final
rule. The same claimant representative also felt that the proposed
language in the introductory text noting that OWCP may contract for, or
require the use of, specific providers for certain medications was a
violation of a claimant's right to obtain his or her own physician.
However, the proposed language only stated that OWCP may contract with
or require the use of specific providers for certain medications; it
did not state that beneficiaries could be required to obtain treatment
from specific physicians. Thus, no change was made to the introductory
text of Sec. 30.709 in the final rule.
In the NPRM, proposed Sec. 30.709(a) clarified that the fee
schedule for medicinal drugs applies whether the drugs are dispensed by
a pharmacy or by a doctor in his office. A claimant representative
commented that she generally agreed with the proposed language in Sec.
30.709(a), but asked that the dispensing fee be unbiased and
unambiguous, and consistent with the CMS fee schedule. The Department
is unaware of any objective evidence of bias regarding the dispensing
fee for medical drugs and this comment is outside the scope of the
proposed change in Sec. 30.709(a). Because the claimant
representative's comment goes beyond the change in the NPRM, no
amendment was made in the final rule with respect to this comment.
Proposed Sec. 30.709(c) codified OWCP's authority to require the
use of generic drugs, where appropriate. A claimant representative
generally agreed with the proposed addition, as long as a beneficiary
can petition for ``ungeneric'' equivalents if recommended by the
provider. An advocacy group disagreed with the Department's proposed
change because it believes that a beneficiary's physician, not OWCP,
must decide what medications are best for the beneficiary. However,
OWCP has required the use of generic equivalents where available since
the beginning of the program in 2001, and sees no reason to alter this
established requirement. Therefore, no change made to Sec. 30.709(c)
in the final rule as a result of this comment.
Proposed Sec. 30.710(a) removed the terminology in existing Sec.
30.710(a) that refers to the obsolete ``Prospective Payment System,''
and instead referred to the ``Inpatient Prospective Payment System''
devised by CMS. A claimant representative noted the change in proposed
Sec. 30.710(a). However, since the commenter did not either support or
oppose the proposed regulation or offer ideas for changes, no change
was made to Sec. 30.710(a) in the final rule based on this comment.
The same claimant representative commented on existing Sec. 30.710(b),
but the Department did not propose any changes to this paragraph in the
NPRM. Because the claimant representative's second comment did not
refer to a change that was proposed in the NPRM, no amendment was made
in the final rule with respect to this comment.
In the NPRM, the Department added a new section, proposed Sec.
30.711, to explain its current practice of paying hospitals for
outpatient medical services according to Ambulatory Payment
Classifications based on the Outpatient Prospective Payment System
devised by CMS. To accommodate the addition of that new section,
existing Sec. Sec. 30.711, 30.712 and 30.713 appeared in the NPRM as
proposed Sec. Sec. 30.712, 30.713 and 30.714. A claimant
representative generally agreed with proposed Sec. 30.711, and
suggested adding a provision in proposed Sec. 30.711 to state that an
aggrieved party may petition for
[[Page 3040]]
judicial review if OWCP denies payment for outpatient medical services.
The Department notes that a claimant already has the ability to seek
judicial review of such a denial, and does not require a regulatory
acknowledgment of that ability. For that reason, no change was made to
Sec. 30.711 in the final rule based on that comment.
Proposed Sec. 30.712(a) clearly stated that OWCP will not correct
procedure or diagnosis codes on submitted bills. Rather, those bills
will be returned to the provider for correction because the
responsibility for proper submission of bills lies with the provider. A
claimant representative commented that the Department's proposed change
in Sec. 30.712(a) may cause unnecessary delay. This requirement,
however, is not new to this rulemaking and has been in existence since
the beginning of the program. Therefore, since the Department sees no
reason to alter this requirement, no change was made to this paragraph
in the final rule. The same claimant representative commented on both
proposed Sec. Sec. 30.712(b) and 30.713(a), but the Department did not
propose any changes to those provisions in the NPRM. Because the
claimant representative's latter comments referred to regulatory text
that was not changed in the NPRM, no amendment was made in the final
rule with respect to those comments.
Proposed Sec. 30.713(a)(1) clarified that the provider should make
a request for reconsideration of a fee determination to the district
office with jurisdiction of the employee's claim. A claimant
representative agreed with that change. Accordingly, no change was
needed for Sec. 30.713(a)(1) in the final rule. In addition, proposed
Sec. 30.713(b) provided that a Regional Director's decision on a
reduction in a provider's fee is final. A claimant representative
objected to the Department's addition in proposed Sec. 30.713(b), and
suggested adding language stating that the provider has the right to
file an objection with an administrative law judge or in Federal
district court. The Department added the provision concerning the
finality of the Regional Director's decision to Sec. 30.713(b) to
conform with similar regulations in another program administered by
OWCP, and is not persuaded to deviate from those similar regulations.
For that reason, no change was made to Sec. 30.713(b) in the final
rule.
Exclusion of Providers
In the NPRM, the Department proposed adding two new paragraphs,
proposed Sec. 30.715(i) and (j), to existing Sec. 30.715 to set out
two new reasonable bases for excluding providers. In proposed Sec.
30.715(i), a provider may be excluded for failing to inform OWCP of any
change in its provider status, and in proposed Sec. 30.715(j), a
provider may be excluded for engaging in conduct related to care found
by OWCP to be misleading, deceptive or unfair. A claimant
representative suggested that the Department add text, presumably in
the introductory paragraph of existing Sec. 30.715, to state that OWCP
will exclude providers based on ``substantial relevant evidence,'' and
that providers have the right to seek administrative review. These
suggestions, however, do not relate to the proposed changes in existing
Sec. 30.715. Further, the Department notes that an excluded provider
already has the ability to request a hearing before an administrative
law judge as outlined in existing Sec. Sec. 30.720 through 30.723, and
to seek judicial review of such a decision excluding them from the
program. Thus, the suggested changes to existing Sec. 30.715 suggested
by the commenter were not made in the final rule.
With respect to proposed Sec. 30.715(i), two health care providers
relayed their fears that the language in that proposed paragraph might
cause a provider to be excluded for something as inadvertent as a mere
administrative mishap. In addition, both of those health care providers
and an advocacy group requested that the Department clearly define the
terms used in the text of that paragraph. The Department believes that
a provider's failure to inform OWCP that it no longer satisfies all
applicable Federal and state licensure and regulatory requirements is
significant, rather than a mere administrative mishap, and thus a valid
basis for exclusion. Also, the Department firmly believes that the
grounds upon which it may exclude a provider involve matters of
administrative discretion that need not be further defined. Therefore,
the Department is not persuaded that proposed Sec. 30.715(i) should be
modified in the final rule as requested by these commenters.
As for proposed Sec. 30.715(j), four individuals, one health care
provider and a law firm believed that the wording in proposed Sec.
30.715(j) was overbroad and arbitrary. Two advocacy groups, the same
and one other health care provider and the law firm suggested that the
Department clearly define the terms used in the text of that paragraph.
As it noted above, the Department firmly believes that the grounds upon
which it may exclude a provider involve matters of administrative
discretion that need not be further defined. Two of the individual
commenters asserted that proposed Sec. 30.715(j) will infringe on a
state's authority to regulate licensed health care providers. However,
OWCP is not now, and will not in the future, monitoring a provider's
compliance with state licensing and other regulatory requirements, and
therefore no such infringement exists. Accordingly, no change was made
to Sec. 30.715(j) in the final rule based on these comments.
In the NPRM, the Department added a new paragraph, proposed Sec.
30.716(c), to clarify that a provider may voluntarily choose to be
excluded without undergoing the exclusion process. That clarification
was meant to address situations where providers may simply agree to be
excluded, and thereby avoid a possibly burdensome administrative
exclusion process when, for example, they are facing criminal charges
unrelated to the provision of services to any EEOICPA beneficiaries. A
claimant representative suggested that the Department should state in
proposed Sec. 30.716(c) that a provider may voluntarily exclude
themselves from the program. Such clarification is unnecessary since
the language in proposed Sec. 30.716(c) states exactly what the
commenter suggested. Therefore, no change was made to that paragraph in
the final rule.
Proposed Sec. 30.717 reorganized existing Sec. 30.717 into three
separate paragraphs to provide that the Department's Office of
Inspector General (DOL OIG) will be primarily responsible for
investigating all potential exclusions of providers, instead of the
Regional Director as provided in existing Sec. 30.717. Proposed Sec.
30.717(a) stated that OWCP will forward exclusion-related information
to the DOL OIG. A claimant representative agreed with the changes in
proposed Sec. 30.717(a). Another claimant representative commented
that exclusion matters should be handled by the Regional Director, not
the DOL OIG, since the current regulations state that the Regional
Director will handle those matters. The Department acknowledged in the
preamble to the proposed rule that this function was previously handled
by OWCP; however, OWCP has no investigatory arm and lacks resources to
carry out this responsibility. The Department continues to believe that
the DOL OIG is in the best position to handle such investigations. A
health care provider commented that referral to the DOL OIG will result
in significant and expensive adverse impacts on legitimate providers.
This commenter did not provide any proof to validate the
[[Page 3041]]
fear that such problems will occur, nor has this been OWCP's experience
in its administration of another compensation program that already uses
this contemplated process. Another health care provider commented that
proposed Sec. 30.717(a) lacked necessary details. However, that
paragraph merely announced that the DOL OIG will be responsible for
investigating all possible exclusions of providers, and therefore any
further explanation of the process involved would be superfluous. For
the reasons stated above, the Department is not persuaded that any
change is needed in Sec. 30.717(a); therefore, no change was made in
the final rule.
In proposed Sec. 30.717(c), the Department described the contents
of the written report that the DOL OIG would need to prepare for OWCP
if it determined that there was reasonable cause to believe that any
violations enumerated in proposed Sec. 30.715 had occurred. The law
firm and a health care provider suggested wording changes to proposed
Sec. 30.717(c), but those changes would inadvisably limit the amount
of discretion that the Department feels is necessary in this process.
Therefore, the suggested changes to this paragraph were not made in the
final rule.
Proposed Sec. 30.718(a) through (f) contained minor wording
changes to the existing language in those paragraphs with respect to
how OWCP will notify a provider of its intent to exclude them, in order
to conform the existing regulatory language with similar regulations in
another program administered by OWCP. A health care provider asked the
Department to add specific details in proposed Sec. 30.718 about what
will happen to the clients of excluded providers, and whether OWCP will
alert other home health care providers that a specific provider was
excluded from the program. However, the above comment was outside the
scope of the changes in proposed Sec. 30.718. Because the comment goes
beyond the change in the NPRM, no amendment was made in the final rule
with respect to this comment. In proposed Sec. 30.718(e), the
Department proposed allowing a provider 60 days, instead of 30 days as
stated in current Sec. 30.718(e), to respond to a letter of intent. A
claimant representative agreed with that provision. Under these
circumstances, no changes were made in Sec. 30.718(e) based on the
comment.
Proposed Sec. 30.719(c) stated that ``[t]he provider may inspect
or request copies of information in the record at any time prior to the
deciding official's decision by making such request to OWCP within 20
days of receipt of the letter of intent,'' while existing Sec.
30.719(c) does not contain any time requirements. Two health care
providers commented that this language was confusing, and both of those
commenters suggested that no timeframe for requesting information
should be imposed. The Department is not persuaded that the proposed
regulation is confusing, because both of these commenters have read it
properly regarding the 20-day period for requesting access. Regarding
the suggestion that no timeframe should be imposed, the Department
thinks that it is reasonable for a provider to decide, within 20 days
of receiving the letter of intent, whether or not it wants to review
any information in the record. Allowing these requests to be made at
any time would likely result in an inefficient and slower
administrative review process, which would benefit neither the provider
nor OWCP. Thus, no amendments were made to those provisions in the
final rule. In the NPRM, the Department added a new paragraph, proposed
Sec. 30.719(d), to allow OWCP 30 days to answer the provider's
response to OWCP's letter of intent, and to allow the provider 15 days
to reply to OWCP's answer. A claimant representative suggested that the
Department allow OWCP 60 days, instead of 30 days, to answer a
provider's response in proposed Sec. 30.719(d). However, the
Department made this change to conform with similar regulations in
another program administered by OWCP. For that reason, and since the
claimant representative gave no reason for her suggestion, no changes
were made in Sec. 30.719 in the final rule based on her comment.
In proposed Sec. Sec. 30.720 through 30.723, the Department made
minor wording changes to the existing language in those sections that
addresses how an excluded provider can request a hearing, how hearings
are assigned and scheduled, how subpoenas or advisory opinions are
obtained and how an administrative law judge will conduct a hearing and
issue a recommended decision, respectively. A claimant representative
suggested that the Department's changes in those proposed sections were
unnecessary. However, these sections were amended to conform with
similar regulations in another program administered by OWCP. Thus, the
proposed changes are necessary, and no changes were made to those
sections in the final rule as a result of this comment.
Proposed Sec. 30.724(a) through (h) modified the manner in which
the administrative law judge's recommended decision on exclusion
becomes final. In particular, proposed Sec. 30.724(h) stated that no
recommended decision regarding exclusion will become final until the
Director for Energy Employees Occupational Illness Compensation issues
the decision in final form, while existing Sec. 30.724(a) provides
that an administrative law judge's recommended decision on exclusion
becomes final if no objection is filed. A claimant representative and a
health care provider commented that they did not understand why the
Department modified this section in the NPRM. That same health care
provider objected to the language in proposed Sec. 30.724(h) and
argued that it gave the Director authority over administrative law
judges and the DOL OIG. The Department disagrees that the proposed
changes will give the Director any managerial authority over
administrative law judges and/or the DOL OIG, and notes again that it
added that language in order to conform the provision to similar
regulations in another program administered by OWCP. Therefore, no
changes were made to that paragraph in the final rule.
In the NPRM, the Department proposed adding paragraph (a)(4) to
existing Sec. 30.725 to state that OWCP will notify the state or local
authority responsible for licensing or certifying the excluded party of
the exclusion. A claimant representative questioned whether OWCP has
the authority to do so; the Department is confident that OWCP has such
authority, as would any member of the public with knowledge relevant to
the professional deficiencies of any licensed provider. A health care
provider asked the Department to explain the difference between
automatic and non-automatic exclusion, but this comment does not
pertain to the change proposed in Sec. 30.725(a)(4). Because the
health care provider's comment did not refer to a change that was
proposed in the NPRM, no amendment was made to Sec. 30.725(a)(4) in
the final rule.
Proposed Sec. 30.726(c) corrected outdated terminology by
replacing the word ``argument'' with ``presentation.'' A claimant
representative commented that the change was unnecessary. The
Department agrees that this change is minor; however, it was made to
conform to similar regulations in another program administered by OWCP.
For that reason, no changes were made to Sec. 30.726(c) in the final
rule in response to this single comment.
Subpart I--Wage-Loss Determinations Under Part E of EEOICPA
General Provisions
In proposed Sec. 30.800(c), the Department updated a cross-
reference to
[[Page 3042]]
reflect the changed location of the regulatory provision defining the
term covered illness from Sec. 30.5(r) to Sec. 30.5(s). A claimant
representative commented that the cross-reference change in Sec.
30.800(c) was unnecessary. Nonetheless, because this change was needed
to reflect the changed location of the regulatory provision, no change
was made to Sec. 30.800(c) in the final rule. The Department proposed
slight modifications and additions to the definitions related to wage-
loss benefits available under Part E contained in proposed Sec.
30.801. A claimant representative generally agreed with those changes,
and specifically asserted that the regulatory definition of wages in
proposed Sec. 30.801(g) should refer explicitly to the ``time of
injury.'' However, because the term ``time of injury'' is only relevant
to a determination whether an individual has forfeited his or her
entitlement under section 7385i(a) of EEOICPA, and because the
definition of wages needs to be applicable to potentially multiple
points of time in a single claim, no change to Sec. 30.801 was made in
the final rule.
Evidence of Wage-Loss
Proposed Sec. 30.805(a) set out in detail the criteria, derived
from the statute at section 7385s-2(a)(2)(A) of EEOICPA that claimants
must establish in order to be eligible for wage-loss benefits under
Part E. A claimant representative suggested that proposed Sec.
30.805(a) wrongly placed the burden of proof on claimants to establish
their entitlement to wage-loss benefits, because she believed that once
OWCP determines that a claimant is a covered employee who contracted a
covered illness, ``then the employee claimant is mandated to receive
wage-loss'' benefits. However, this comment does not recognize that
there are clearly discernable eligibility requirements for wage-loss
benefits in section 7385s-2(a)(2)(A) beyond those set out in section
7385s-4 of EEOICPA, and that it is the claimant's burden, as stated by
the U.S. Supreme Court, to provide evidence to meet the requirements in
both of those sections of EEOICPA. Therefore, no change was made to
Sec. 30.805(a) in the final rule as a result of this comment.
Proposed Sec. 30.805(b) explained that OWCP may discontinue
development of a covered Part E employee's request for wage-loss
benefits at any point when the claimant is unable to meet his or her
burden of proof to submit factual and/or medical evidence to establish
the criteria specified in proposed Sec. 30.805(a). Two claimant
representatives and four advocacy groups objected to proposed Sec.
30.805(b), because they were concerned that the decision to discontinue
development would not be subject to administrative review if OWCP
administratively closed such a claim for wage-loss benefits without
issuing recommended and final decisions. However, the text of proposed
Sec. 30.805(b) nowhere suggested that this would occur. The Department
has added text to Sec. 30.805(b) in the final rule to make clear that
a decision would issue.
In the NPRM, proposed Sec. 30.806 was substantially similar to
current Sec. 30.805(b), except that it provided an explanation of what
OWCP would consider to be ``rationalized'' medical evidence, i.e.,
medical evidence based on a physician's fully explained and reasoned
decision, which a covered Part E employee must submit in order to
establish that the claimed wage-loss at issue was causally related to
the employee's covered illness. Additionally, proposed Sec. 30.806
memorialized OWCP's established policy and Federal case law that wage-
loss sustained due to something other than a covered illness is not
compensable under Part E of EEOICPA. See Trego v. U.S. Dep't of Labor,
681 F.Supp. 2d 894 (E.D. Tenn. 2009). Two advocacy groups, one claimant
representative and the Advisory Board suggested that several terms used
in the text describing the type of medical evidence a claimant must
submit to prove that he or she lost wages in the alleged trigger month
needed to be defined further or eliminated, and suggested that the type
of medical evidence described in proposed Sec. 30.806 would be
difficult for claimants to obtain. It should be noted, however, that
proposed Sec. 30.806 does not alter or increase the existing
requirement for the submission of this medical evidence in current
Sec. 30.805(b). Rather, it gives a fuller and more helpful description
of the type of medical evidence necessary, which is useful to claimants
seeking to obtain these benefits. Accordingly, no changes were made to
Sec. 30.806 in the final rule.
Proposed new Sec. 30.807 was added to accommodate the changes
described above in proposed Sec. 30.806. Proposed Sec. 30.807(a) was
substantially similar to existing Sec. 30.805(a), except that the
provision stated that OWCP may rely upon annual, as well as quarterly,
wage information that has been reported to the Social Security
Administration. Also, the Department sought to move language defining
``wages'' that appears in current Sec. 30.805(a) to a new Sec.
30.801(g). And finally, proposed Sec. 30.807(b) was substantially
similar to existing Sec. 30.806, which describes the submission of
factual evidence of wage-loss by claimants. A claimant representative
submitted a comment in which she questioned whether the changes in
proposed Sec. 30.807 were necessary. These regulatory changes not only
reorganize and clarify the existing regulatory description of the
process for developing wage-loss claims, but also explain how OWCP has
interpreted and applied the complex provisions of the statute. Because
of this, and also because the commenter did not suggest a viable
alternative, no change to Sec. 30.807 was made in the final rule in
response to this comment.
Determinations of Average Annual Wage and Percentages of Loss
In the NPRM, the Department proposed revising existing Sec. 30.810
to state that it will calculate the average annual wage of a covered
Part E employee using months instead of quarters, to be consistent with
proposed Sec. 30.801(a). Also, proposed Sec. 30.811(a) combined the
text from paragraphs (a) and (b) in existing Sec. 30.811, since the
current text in those paragraphs is repetitive. A claimant
representative questioned the need for the admittedly minor conforming
changes in proposed Sec. Sec. 30.810 and 30.811. However, the proposed
minor changes to existing Sec. 30.810 were needed to conform with
other proposed changes in subpart I, and repetitive text was removed
from proposed Sec. 30.811 to make it clearer. Under these
circumstances, the Department did not make any changes to Sec. Sec.
30.810 and 30.811 in the final rule with respect to this comment.
Subpart J--Impairment Benefits Under Part E of EEOICPA
General Provisions
In the NPRM, proposed Sec. 30.901(a) deleted the word ``minimum''
from the statutory term ``minimum impairment rating'' that appears in
the existing paragraph, and proposed Sec. 30.901(b) deleted the same
statutory term entirely. In addition, the Department proposed deleting
the statement that appears in existing Sec. 30.901(b) that OWCP will
determine impairment ratings under EEOICPA in accordance with the AMA's
Guides. A claimant representative and an advocacy group objected to the
deletion of the word ``minimum'' in proposed Sec. 30.901(a), and to
the deletion of the term ``minimum impairment rating'' in (b), and
pointed out that this language appears in the statutory description of
impairment ratings found in 42 U.S.C. 7385s-2(a)(1)(A)(i). However, as
the
[[Page 3043]]
Department pointed out when it published proposed Sec. 30.901(a) and
(b), the word ``minimum'' has no actual meaning in the context of
rating permanent impairment, nor does it meaningfully describe or
further modify ``impairment rating.'' Put simply, there is no
difference between a ``minimum impairment rating'' and an ``impairment
rating'' when a claimant has reached maximum medical improvement. The
same advocacy group, a second advocacy group, a claimant representative
and a health care provider also objected to the deletion of the
statement that OWCP will determine impairment ratings under EEOICPA in
accordance with the AMA's Guides, and asserted that this change was
confusing and contrary to section 7385s-2(b). The Department agrees,
but notes that the deletion in question was made at the insistence of
the Office of the Federal Register, which deemed it to be a prohibited
incorporation of material by reference. Accordingly, for the reasons
stated above, no changes were made to Sec. 30.901(a) and (b) in the
final rule based on the above comments.
Proposed new Sec. 30.902(b) added text to describe OWCP's
longstanding policy of proportionately reducing an impairment award in
circumstances when such award is payable based on a whole person
impairment rating, and at least one of the elements of the award is
subject to a reduction under existing Sec. Sec. 30.505(b) and/or
30.626. A claimant representative objected to the new paragraph, and
mistakenly assumed that these reductions would be made without
providing a claimant with notice and an opportunity to respond.
Appropriate process will be provided, and therefore no changes were
made to Sec. 30.902(b) in the final rule.
Medical Evidence of Impairment
Proposed Sec. 30.908(b) and (c) replaced the term ``minimum
impairment rating'' with ``impairment rating,'' to be consistent with
the changes in proposed Sec. Sec. 30.102(a), 30.901 and 30.902. A
claimant representative objected to that change, for the same reasons
she gave in support of her comments regarding proposed Sec. 30.901.
However, and as noted above regarding those comments, the word
``minimum'' serves no actual purpose in the determination of a
claimant's impairment rating. Accordingly, and as it did above in
connection with proposed Sec. 30.901, the Department did not make any
changes to Sec. 30.908(b) and (c) in the final rule based on this
comment. The same claimant representative, as well as a health care
provider and two advocacy groups, commented on other aspects of
proposed Sec. 30.908(b) and (c) in the NPRM that were no different
from existing Sec. 30.908(b) and (c). Since the only change to the
existing paragraphs that were made in proposed Sec. 30.908(b) and (c)
was the deletion of the words ``minimum,'' none of the changes
suggested by this second group of comments were made to Sec. 30.908(b)
and (c) in the final rule.
IV. Miscellaneous Rulemaking Issues
During this rulemaking process, several extraneous issues arose
that are not addressed in the above section-by-section analysis. The
Department's analysis of the requests it received to extend the comment
periods, the comment it received from the Advisory Board on issues that
were either outside the Advisory Board's scope of duties under section
7385s-16(b)(1) of EEOICPA or not addressed in any aspect of the
proposed changes, and its communications with interested parties about
the NPRM outside of the rulemaking process follows:
Requests To Extend the Comment Period
Prior to expiration of the original January 19, 2016 deadline to
submit comments concerning the NPRM, the Department received 33 timely
comments that requested that the Department extend the comment period,
but did not otherwise comment on any aspect of the proposed rule (24
from different individuals, 1 of whom submitted 2 separate comments, 3
from advocacy groups, 2 from claimant representatives, 1 from a health
care provider and 1 from a member of Congress), while an additional 3
timely comments requested that the Department extend the comment period
and also commented on aspects of the proposed rule (2 from individuals
and 1 from a health care provider). Most of the commenters asked that
the comment period be extended to allow the Advisory Board to be seated
and have the opportunity to comment on the proposed rule. The remainder
of these requesters asked for an extension for reasons such as the
comment period was disrupted by several holidays, and because the
elderly and sick population interested in the program needed more time
to review the proposed changes.
On January 19, 2016, the Department extended the comment period
another 30 days through February 18, 2016. During the 30-day extended
period, the Department received requests that the comment period be
extended yet further from 99 commenters. Of those 99 commenters, 95
requested that the Department extend the comment period but did not
otherwise comment on any aspect of the proposed rule (92 from
individuals, 2 from unknown persons or organizations, and 1 from a
health care provider), while an additional 4 timely commenters
requested that the Department extend the comment period and also
commented on aspects of the proposed rule (1 from the same health care
provider and 1 from another health care provider, 1 from an individual
and 1 from a labor organization). The Department also received 1
untimely request from an individual requesting an extension. A
significant portion of these requests were identical or nearly
identical ``form letters'' that generally asked for more time for
physicians to review the proposed regulations, and some asked the
Department to hold Town Hall meetings. The few remaining requesters
asked the Department to wait until the Advisory Board was seated before
issuing final regulations.
Comments From the Advisory Board on Toxic Substances and Worker Health
On April 5, 2016, the Department reopened the comment period for
the NPRM through May 9, 2016, to afford interested parties the
opportunity to further review the NPRM, and to afford the new Advisory
Board the opportunity to review the NPRM at its public meeting held
April 26, 27 and 28, 2016. Prior to the meeting, the Advisory Board
received legal guidance with respect to which of the sections of the
NPRM were within the scope of its duties, as specified in Sec. 7385s-
16(b)(1) of EEOICPA, and which other sections fell outside its scope of
duties. During the reopened comment period, the Department received 180
comments, including 1 from the Advisory Board.
The Department thanks the Advisory Board for its work. The Advisory
Board addressed a number of aspects of the proposed regulations in its
comment. Section 7385s-16(b)(1) of EEOICPA sets out the scope of the
Board's advisory duties and, consequently, the Department's bounds on
formal consideration of that advice. Some of the issues raised by the
Board addressed sections of the regulation that fell within its duties:
Sec. Sec. 30.206(a), 30.231(b), 30.232(a)(1) and (2), 30.405(b) and
(c), 30.509(c) and 30.806. The Department discussed these comments in
the section-by-section analysis set forth above. The Advisory Board
also went outside its statutory mandate to submit comments on proposed
Sec. Sec. 30.5(j), 30.5(x)(2)(iii), 30.5(ee), 30.112(b)(3), 30.231(a)
and 30.805(a)(3). Although the Department did not discuss this second
set of Advisory Board comments in the section-by-
[[Page 3044]]
section analysis, the issues raised in those comments were also raised
in other timely comments and thus were fully addressed. Lastly, the
Advisory Board commented on existing Sec. 30.230(d)(2)(iii) and
aspects of proposed Sec. 30.231(b) that were not included in the NPRM,
and therefore no discussion of that comment was included in the
Department's section-by-section analysis.
Communications Outside of the Rulemaking Process
Meetings or discussions with one or more parties about NPRMs can
take place outside of the comment process, provided that the agency
properly documents the particulars of those communications. However,
such discussions are not a substitute for submission of public
comments, and the content of those communications cannot be considered
in preparation of the final rule.
During the comment periods for this NPRM, DOL personnel had a total
of 16 instances wherein they discussed aspects of the NPRM with
interested individuals and groups outside of the formal comment
process. Specifically, DOL personnel attended four face-to-face
meetings with congressional staff at the request of the staffers and
spoke with a member of the press on two separate occasions. In
addition, three advocacy groups, two claimant representatives, two
NIOSH employees and one health care provider contacted DOL personnel on
matters relating to the NPRM. Also, on April 4, 2016, DOL personnel
provided a briefing on the NPRM to all members of the Advisory Board,
and the Advisory Board discussed the NPRM at its public meeting held
April 26, 27 and 28, 2016. Although those specific discussions were not
considered in preparation of this final rule, the subjects and sections
of the NPRM that were discussed in those communications were addressed
by the timely comments that are discussed above.
V. Publication in Final
The Department 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.
VI. 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 provides the Secretary with the general statutory authority to
administer Part E of the Act. Sections 7384t, 7384u and 7385s8 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.
VII. Executive Orders 12866 and 13563
E.O. 12866 directs agencies to assess all costs and benefits of
available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits (including
distributive impacts, equity, and potential economic, environmental,
public health and safety effects). E.O. 13563 is supplemental to and
reaffirms the principles, structures, and definitions governing
regulatory review as established in E.O. 12866.
This rule has been designated a ``significant regulatory action''
although not economically significant under section 3(f) of E.O. 12866.
The rule is not economically significant because it will not have an
annual effect on the economy of $100 million or more. The Department
believes that this rule is merely an update to the existing regulations
to reflect the program's current processes, and to incorporate the
policy and procedural changes that have been implemented since the
existing regulations were issued in 2006.
Thus, the Department does not believe that any of the above
significant policies in the final rule will result in increased or
decreased administrative costs to either the program or the public, or
any increase in benefits paid. This rule has been reviewed by the
Office of Management and Budget.
VIII. Regulatory Flexibility Act
This rule has been reviewed in accordance with the Regulatory
Flexibility Act of 1980, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The Department has
concluded that the rule does not involve regulatory and informational
requirements regarding businesses, organizations and governmental
jurisdictions subject to the regulation.
IX. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
and its implementing regulations, 5 CFR part 1320, require that the
Department consider the impact of paperwork and other information
collection burdens imposed on the public. A Federal agency generally
cannot conduct or sponsor a collection of information, and the public
is generally not required to respond to an information collection,
unless it is approved by the Office of Management and Budget (OMB)
under the PRA and displays a currently valid OMB Control Number. In
addition, notwithstanding any other provisions of law, no person may
generally be subject to penalty for failing to comply with a collection
of information that does not display a valid Control Number. See 5 CFR
1320.5(a) and 1320.6.
This final rule contains information collection requirements
subject to the PRA. The information collection requirements in
Sec. Sec. 30.700, 30.701 and 30.702 of this final rule, which relate
to information required to be submitted by claimants and medical
providers in connection with the processing of bills, were both
submitted to and approved by OMB under the PRA, and the currently
approved collections in OMB Control Nos. 1240-0007, 1240-0019, 1240-
0021, 1240-0044 and 1240-0050 will not be affected by any of the
changes made in this final rule. No comments were received concerning
the information collection burdens in this first group of sections, and
therefore no changes relating to those burdens were made in this final
rule. The information collection requirements in Sec. Sec. 30.100,
30.101, 30.102, 30.103, 30.112, 30.113, 30.206, 30.207, 30.213, 30.222,
30.231, 30.232 and 30.416 of this final rule were also previously
submitted to and approved by OMB under the PRA, and were assigned OMB
Control No. 1240-0002. The information collection requirements in this
second group of sections will not be affected by any of the substantive
changes made in this final rule; no comments concerning the information
collection burdens in this second group were received, and therefore no
changes relating to those burdens were made in this final rule.
However, in the NPRM, the Department noted that proposed sections
30.114(b)(3) and 30.403, which, as discussed above, require parties to
submit information OWCP needs before it can accept and then provide
medical benefits for a claim, constituted collections of information
within the meaning of the PRA that were being added to OMB Control. No.
1240-0002.
[[Page 3045]]
80 FR 72302-72304. The NPRM specifically invited comments regarding the
information collections and notified the public of their opportunity to
file such comments with both OMB and the Department. Id. On the same
date the NPRM was published, the Department submitted a series of
Information Collection Requests (ICRs) to OMB for approval in order to
update the information collections to be consistent with the proposed
rule. On January 19, 2016, OMB concluded its reviews by asking the
Department to submit a summary of all comments received on the proposed
information collections and identify any changes made in response to
these comments. Id.
The Department received comments on the substance of proposed
sections 30.114(b)(3) and 30.403; those comments are fully addressed in
the above section-by-section analysis entitled ``Comments on the
Proposed Regulations.'' The Department also received 18 comments about
the information collections in proposed section 30.403, but no comments
on the information collections in proposed Sec. 30.114(b)(3) were
received. The comments regarding proposed Sec. 30.403 were submitted
by 17 different commenters (one of whom submitted two separate
comments). Ten physicians, two individuals, three health care providers
and one claimant representative submitted comments in which they stated
that the information collection burdens of the proposed Form EE-17A
(which asks the claimant to provide OWCP with the name and contact
information for their treating physician) and Form EE-17B (which asks
the treating physician to verify that a timely a face-to-face
examination took place and to submit a Letter of Medical Necessity
supporting the requested services) were excessive. However, the
Department notes that these comments are based on the erroneous
supposition that these two new forms will add additional burdens on the
public and delay the provision of necessary services, when in fact they
are intended to standardize and thus replace the current individualized
method (currently not accounted for under the PRA) for OWCP's required
pre-authorization process which can, and often does, take longer than
all parties would wish. One individual commenter praised the idea
behind the creation of proposed Forms EE-17A and EE-17B, noting that
standardizing the process would likely bring a measure of order to an
otherwise often chaotic process. The Department is in agreement with
this last commenter, and made no changes to the information collection
instruments at issue. The Department is submitting ICRs to OMB for the
information collections to revise and update them for this final rule.
The information collections in this rule may be summarized as
follows. The number of responses and burden estimates listed are not
specific to the Energy program; instead, the estimates are cumulative
for all OWCP-administered compensation programs that collect this
information.
1. Title of Collection: Energy Employees Occupational Illness
Compensation Program Act Forms.
OMB Control Number: 1240-0002.
Total Estimated Number of Responses: 60,294.
Total Estimated Annual Time Burden: 20,359 hours.
Total Estimated Annual Other Costs Burden: $28,989.48.
2. Title of Collection: Claim for Medical Reimbursement Form.
OMB Control Number: 1240-0007.
Total Estimated Number of Responses: 34,564.
Total Estimated Annual Time Burden: 5,738 hours.
Total Estimated Annual Other Costs Burden: $59,450.
3. Title of Collection: Uniform Billing Form (OWCP-04).
OMB Control Number: 1240-0019.
Total Estimated Number of Responses: 259,865.
Total Estimated Annual Time Burden: 29,466.
Total Estimated Annual Other Costs Burden: $0.
4. Title of Collection: Provider Enrollment Form.
OMB Control Number: 1240-0021.
Total Estimated Number of Responses: 64,325.
Total Estimated Annual Time Burden: 8,555 hours.
Total Estimated Annual Other Costs Burden: $33,449.
5. Title of Collection: Health Insurance Claim Form.
OMB Control Number: 1240-0044.
Total Estimated Number of Responses: 3,381,232.
Total Estimated Annual Time Burden: 321,455 hours.
Total Estimated Annual Other Costs Burden: $0.
6. Title of Collection: Pharmacy Billing Requirements.
OMB Control Number: 1240-0050.
Total Estimated Number of Responses: 1,381,903.
Total Estimated Annual Time Burden: 24,203 hours.
Total Estimated Annual Other Costs Burden: $0.
X. Unfunded Mandates Reform Act
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.
XI. Executive Order 13132 (Federalism)
The Department has reviewed this final rule in accordance with E.O.
13132 regarding federalism, and has determined that it does not have
``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.''
XII. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has reviewed this final rule in accordance with E.O.
13175 and has determined that it does not have ``tribal implications.''
The final rule does not ``have substantial direct effects on one or
more Indian tribes, on the relationship between the Federal government
and Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.''
XIII. 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. The
regulation has been written so as to minimize litigation and provide a
clear legal standard for affected conduct, and has been reviewed
carefully to eliminate drafting errors and ambiguities.
XIV. 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, and
has determined that the final rule will have no effect on children.
[[Page 3046]]
XV. 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 it is not likely to have a significant adverse
effect on them.
XVI. Executive Order 13771 (Reducing Regulation and Controlling
Regulatory Costs)
This rule is not subject to the requirements of E.O. 13771 because
this rule results in no more than de minimis costs. This final rule
simply updates some of the provisions governing EEOICPA transfers to
ensure the program operates properly and efficiently.
List of Subjects in 20 CFR Part 30
Administrative practice and procedure, Cancer, Claims, Kidney
diseases, Leukemia, Lung diseases, Miners, Radioactive materials, Tort
claims, Underground mining, Uranium, Workers' compensation.
Text of the Rule
For the reasons stated in the preamble, the Department of Labor
amends 20 CFR part 30 as follows:
PART 30--CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED
0
1. The authority citation for part 30 is revised to read as follows:
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. 10-
2009, 74 FR 58834.
0
2. Revise Sec. 30.1 to read as follows:
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. 10-2009, 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 Director of the Office of Workers'
Compensation Programs (OWCP). Except as otherwise provided by law, the
Director of OWCP and his or her designees have the exclusive authority
to administer, interpret and enforce the provisions of the Act.
0
3. Amend Sec. 30.2 by revising paragraph (b) to read as follows:
Sec. 30.2 In general, how have the tasks associated with the
administration of EEOICPA claims process been assigned?
* * * * *
(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), which it delegated to the
National Institute for Occupational Safety and Health (NIOSH) in 42 CFR
part 82. 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).
0
4. Amend Sec. 30.5 as follows:
0
a. Revise paragraphs (c)(2)(i) and (i);
0
b. Redesignate paragraphs (ii) and (jj) as paragraphs (kk) and (ll) and
paragraphs (j) through (hh) as paragraphs (k) through (ii) and,
respectively;
0
c. Add new paragraphs (j) and (jj);
0
d. Revise newly redesignated paragraphs (k)(2) introductory text, (w),
(x)(2), (ee), (gg) introductory text; and (ii).
The revisions and additions read as follows:
Sec. 30.5 What are the definitions used in this part?
* * * * *
(c) * * *
(2)(i) An individual employed at a facility that NIOSH reported had
a potential for significant residual contamination outside of the
period described in paragraph (c)(1) of this section;
* * * * *
(i) Beryllium vendor means the specific corporations and named
predecessor corporations listed in section 7384l(6) of the Act and any
other entities designated as such by DOE on December 27, 2002.
(j) Beryllium vendor facility means a facility owned and operated
by a beryllium vendor.
(k) * * *
(2) A written diagnosis of silicosis is made by a licensed
physician and is accompanied by:
* * * * *
(w) Department of Energy or DOE includes the predecessor agencies
of DOE back to the establishment of the Manhattan Engineer District on
August 13, 1942.
(x) * * *
(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;
(ii) A contractor or subcontractor that provided services,
including construction and maintenance, at the facility; or
(iii) A civilian employee of a state or Federal government agency
if the agency employing that individual is found to have entered into a
contract with DOE for the provision of one or more services it was not
statutorily obligated to perform, and DOE compensated the agency for
those services. The delivery or removal of goods from the premises of a
DOE facility does not constitute a service for the purposes of
determining a worker's coverage under this paragraph (x).
* * * * *
(ee) Physician includes surgeons, podiatrists, dentists, clinical
psychologists, optometrists, chiropractors and osteopathic
practitioners, within the scope of their practice as defined by state
law. Physician assistants and nurse practitioners are excluded from
this definition. The services of chiropractors that may be reimbursed
are limited to treatment consisting of manual manipulation of the spine
to correct a subluxation as demonstrated by x-ray to exist.
* * * * *
(gg) Specified cancer means:
* * * * *
(ii) Time of injury is defined as follows:
(1) For an employee's claim, this term means:
(i) 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;
(ii) 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
[[Page 3047]]
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
(iii) 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.
(2) For a survivor's claim, the date of the employee's death is the
time of injury.
(jj) Time of payment or payment means the date that a paper check
issued by the Department of the Treasury was received by the payee or
by someone who was legally able to act for the payee, or the date the
Department of the Treasury made an Electronic Funds Transfer to the
payee's financial institution.
* * * * *
0
5. Amend Sec. 30.100 by revising paragraphs (a), (c) introductory
text, (c)(1) and (d) to read as follows:
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 with OWCP. 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/owcp/energy/index.htm. The employee must sign the written
claim that is filed with OWCP, but another person may present the claim
to OWCP on the employee's behalf.
* * * * *
(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 other carrier's date
marking, 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 shall affirm that the information provided on the
Form EE-1 is true, and must inform OWCP of any subsequent changes to
that information.
* * * * *
(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 other carrier's date marking, 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.
0
6. Amend Sec. 30.101 by revising paragraphs (a), (d) introductory
text, (d)(1) and (e) to read as follows:
Sec. 30.101 In general, how is a survivor's claim filed?
(a) A survivor of an employee must file a claim for compensation in
writing with OWCP. 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/owcp/energy/index.htm. The survivor must sign the
written claim that is filed with OWCP, but another person may present
the claim to OWCP 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.
* * * * *
(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
other carrier's date marking, 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 shall affirm that the information provided on the
Form EE-2 is true, and must inform OWCP of any subsequent changes to
that information.
* * * * *
(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 other carrier's date marking, 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.
* * * * *
0
7. Amend Sec. 30.102 by revising paragraph (a) to read as follows:
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 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.
* * * * *
0
8. Amend Sec. 30.103 by revising paragraph (b) to read as follows:
Sec. 30.103 How does a claimant make sure that OWCP has the evidence
necessary to process the claim?
* * * * *
(b) Copies of the forms listed in this section are available for
public inspection at the U.S. Department of Labor, Office of Workers'
Compensation Programs, Washington, DC 20210. They may also be obtained
from OWCP district offices and on the internet at http://www.dol.gov/owcp/energy/index.htm.
0
9. Amend Sec. 30.110 by revising paragraphs (a)(1) and (4) and (b) to
read as follows:
Sec. 30.110 Who is entitled to compensation under the Act?
(a) * * *
(1) A ``covered beryllium employee'' (as described in Sec.
30.205(a)) with a covered beryllium illness (as defined in Sec.
30.5(p)) who was exposed to beryllium
[[Page 3048]]
in the performance of duty (in accordance with Sec. 30.206).
* * * * *
(4) A ``covered uranium employee'' (as defined in Sec. 30.5(t)).
(b) Under Part E of EEOICPA, compensation is payable to a ``covered
Part E employee'' (as defined in Sec. 30.5(q)), or his or her
survivors.
* * * * *
0
10. Amend Sec. 30.112 by revising paragraph (b)(3) to read as follows:
Sec. 30.112 What kind of evidence is needed to establish covered
employment and how will that evidence be evaluated?
* * * * *
(b) * * *
(3) If the only evidence of covered employment submitted by the
claimant is a written affidavit or declaration subject to penalty of
perjury by the employee, survivor or any other person, 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 will evaluate the probative value of the
affidavit in conjunction with the other evidence of employment, and may
determine that the claimant has not met his or her burden of proof
under Sec. 30.111.
0
11. Amend Sec. 30.113 by revising paragraph (c) to read as follows:
Sec. 30.113 What are the requirements for written medical
documentation, contemporaneous records, and other records or documents?
* * * * *
(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, OWCP will
evaluate the probative value of such other evidence to determine
whether it is sufficient proof of a covered medical condition.
0
12. Amend Sec. 30.114 as follows:
0
a. Revise paragraphs (b)(1) and (2);
0
b. Redesignate paragraph (b)(3) as paragraph (b)(4); and
0
c. Add new paragraph (b)(3).
The revisions and addition read as follows:
Sec. 30.114 What kind of evidence is needed to establish a
compensable medical condition and how will that evidence be evaluated?
* * * * *
(b) * * *
(1) For covered beryllium illnesses under Part B of EEOICPA,
additional medical evidence, as set forth in Sec. 30.207, is required
to establish a beryllium illness.
(2) For chronic silicosis under Part B of EEOICPA, additional
medical evidence, as set forth in Sec. 30.222, is required to
establish chronic silicosis.
(3) For covered illnesses under Part E of EEOICPA, additional
medical evidence, as set forth in Sec. 30.232, is required to
establish a covered illness.
(i) For impairment benefits under Part E of EEOICPA, additional
medical evidence, as set forth in Sec. 30.901, is required to
establish an impairment that is the result of a covered illness
referred to in Sec. 30.900.
(ii) For wage-loss benefits under Part E of EEOICPA, additional
medical evidence, as set forth in Sec. 30.806, is required to
establish wage-loss that is the result of a covered illness referred to
in Sec. 30.800.
* * * * *
0
13. Amend Sec. 30.115 by revising paragraphs (a) introductory text,
(a)(2), and (b) to read as follows:
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 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 NIOSH for dose reconstruction. At that point in time, development of
the claim by OWCP may be suspended.
* * * * *
(2) NIOSH will then reconstruct the radiation dose of the employee
and provide the claimant and OWCP 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 final dose reconstruction report
from NIOSH, 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 NIOSH, OWCP may continue to develop
other aspects of a claim, to the extent that it deems such development
to be appropriate.
0
14. Amend Sec. 30.205 by revising paragraphs (a)(1) and (a)(3)(i) to
read as follows:
Sec. 30.205 What are the criteria for eligibility for benefits
relating to beryllium illnesses covered under Part B of EEOICPA?
* * * * *
(a) * * *
(1) The employee is a ``current or former employee as defined in 5
U.S.C. 8101(1)'' (see Sec. 30.5(u)) who may have been exposed to
beryllium at a DOE facility or at a facility owned, operated or
occupied by a beryllium vendor; or
* * * * *
(3) * * *
(i) Employed at a DOE facility (as defined in Sec. 30.5(y)); or
* * * * *
0
15. Amend Sec. 30.206 by revising paragraph (a) to read as follows:
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 or physical presence at a DOE facility, or
a beryllium vendor facility as defined in Sec. 30.5(j), 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 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.
* * * * *
0
16. Amend Sec. 30.207 as follows:
0
a. Revise paragraph (a);
0
b. Redesignate paragraph (d) as paragraph (e); and
0
c. Add new paragraph (d).
The revision and addition read as follows:
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 paragraph (b), (c), (d) or (e) of this
section.
* * * * *
(d) OWCP will use the criteria in either paragraph (c)(1) or (2) of
this
[[Page 3049]]
section to establish that the employee developed chronic beryllium
disease as follows:
(1) If the earliest dated medical evidence shows that the employee
was either treated for, tested positive for, or diagnosed with a
chronic respiratory disorder before January 1, 1993, the criteria set
forth in paragraph (c)(2) of this section may be used;
(2) If the earliest dated medical evidence shows that the employee
was either treated for, tested positive for, or diagnosed with a
chronic respiratory disorder on or after January 1, 1993, the criteria
set forth in paragraph (c)(1) of this section must be used; and
(3) If the employee was treated for a chronic respiratory disorder
before January 1, 1993 and medical evidence verifies that such
treatment was performed before January 1, 1993, but the medical
evidence is dated on or after January 1, 1993, the criteria set forth
in paragraph (c)(2) of this section may be used.
* * * * *
0
17. Amend Sec. 30.210 by revising paragraph (a)(1) to read as follows:
Sec. 30.210 What are the criteria for eligibility for benefits
relating to radiogenic cancer?
(a) * * *
(1) The employee has been diagnosed with one of the forms of cancer
specified in Sec. 30.5(gg); and
* * * * *
0
18. Revise Sec. 30.211 to read as follows:
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(gg)) or other cancer with
medical evidence that sets forth an explicit diagnosis of cancer and
the date on which that diagnosis was first made.
0
19. Amend Sec. 30.213 by revising paragraph (a) to read as follows:
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. Persons should consult HHS's regulations for information
regarding the factual evidence that will be considered by OWCP, in
addition to the employee's final dose reconstruction report that will
be provided to OWCP by NIOSH, in making this particular factual
determination.
* * * * *
0
20. Amend Sec. 30.220 by revising paragraph (a) to read as follows:
Sec. 30.220 What are the criteria for eligibility for benefits
relating to chronic silicosis?
* * * * *
(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(y)) 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(k)); or
* * * * *
0
21. Amend Sec. 30.222 by revising paragraph (a) introductory text to
read as follows:
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(k)) shall be made by a licensed physician and
accompanied by one of the following:
* * * * *
0
22. Amend Sec. 30.230 by revising paragraphs (a) and (d)(1)
introductory text to read as follows:
Sec. 30.230 What are the criteria necessary to establish that an
employee contracted a covered illness under Part E of EEOICPA?
* * * * *
(a) That OWCP has determined under Part B of EEOICPA that the
employee is a DOE contractor employee as defined in Sec. 30.5(x), and
that he or she has been awarded compensation under that Part of the Act
for an occupational illness;
* * * * *
(d)(1) That the employee is a civilian DOE contractor employee as
defined in Sec. 30.5(x), 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:
* * * * *
0
23. Amend Sec. 30.231 by revising paragraphs (a) and (b) to read as
follows:
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?
* * * * *
(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. If the only evidence of covered employment submitted
by the claimant is a written affidavit or declaration subject to
penalty of perjury by the employee, survivor or any other person, 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 will evaluate the probative value of the
affidavit in conjunction with the other evidence of employment, and may
determine that the claimant has not met his or her burden of proof
under Sec. 30.111.
(b) For claimants who have established proof of employment, 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 where the employee was employed
and that the employee came into contact with such substance.
Information from the following sources may be considered as probative
factual evidence for purposes of establishing an employee's exposure to
a toxic substance at a DOE facility or a RECA section 5 facility:
(1) To the extent practicable and appropriate, from DOE, a DOE-
sponsored Former Worker Program, or an entity that acted as a
contractor or subcontractor to DOE;
(2) OWCP's Site Exposure Matrices; or
(3) Any other entity deemed by OWCP to be a reliable source of
information necessary to establish that the employee was exposed to a
toxic substance at a DOE facility or RECA section 5 facility.
0
24. Amend Sec. 30.232 as follows:
0
a. Revise paragraphs (a)(1) and (2);
0
b. Remove paragraphs (a)(3) and (4) and (b); and
0
c. Redesignate paragraph (c) as paragraph (b) and revise newly
designated paragraph (b).
The revisions read as follows:
[[Page 3050]]
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) * * *
(1) Written medical evidence containing a physician's diagnosis of
the employee's covered illness (as that term is defined in Sec.
30.5(s)), and the physician's reasoning for his or her opinion
regarding causation; and
(2) Any other evidence OWCP may deem necessary to show that the
employee has or had an illness that resulted from an exposure to a
toxic substance while working at either a DOE facility or a RECA
section 5 facility.
(b) An injury, illness, impairment or disease sustained as a
consequence of a covered illness (as defined in Sec. 30.5(s)) 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.
0
25. Add an undesignated center heading immediately preceding Sec.
30.300 and revise Sec. 30.300 to read as follows:
General Provisions
Sec. 30.300 What administrative process will OWCP use to decide
claims for entitlement, and how can claimants obtain judicial review of
final decisions on their claims?
OWCP district offices will issue recommended decisions with respect
to most 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 claims
for entitlement 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. Claimants may
request judicial review of a final decision of FAB by filing an action
in Federal district court.
0
26. Amend Sec. 30.301 by revising paragraph (b)(1) to read as follows:
Sec. 30.301 May subpoenas be issued for witnesses and documents in
connection with a claim under Part B of EEOICPA?
* * * * *
(b) * * *
(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 or other carrier's date marking) after the date of the
original hearing request;
* * * * *
0
27. Amend Sec. 30.305 by revising paragraph (a) to read as follows:
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
prepared by NIOSH (if any), any report submitted by DOE and the results
of such investigation as OWCP may deem necessary.
* * * * *
0
28. Revise Sec. 30.306 to read as follows:
Sec. 30.306 What does the recommended decision include?
The recommended decision shall include a discussion of the district
office's findings of fact and conclusions of law in support of the
recommendation. The recommended decision may recommend acceptance or
rejection of the claim in its entirety, or of 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 [Redesignated as Sec. 30.308]
0
29a. Redesignate Sec. 30.307 as Sec. 30.308.
0
29b. Add new Sec. 30.307 to read as follows:
Sec. 30.307 Can one recommended decision address the entitlement of
multiple claimants?
(a) When multiple individuals have filed survivor claims under Part
B and/or Part E of EEOICPA relating to the same deceased employee, the
entitlement of all of those individuals shall be determined in the same
recommended decision, except as described in paragraph (b) of this
section.
(b) If another individual subsequently files a survivor claim for
the same award, the recommended decision on that claim will not address
the entitlement of the earlier claimants if the district office
recommended that the later survivor claim be denied.
0
30. Revise Sec. 30.310 to read as follows:
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 discussed in
such decision, including NIOSH'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
other carrier's date marking, or on the date that such written
statement is actually received, whichever is the earliest determinable
date.
0
31. Amend Sec. 30.313 by revising paragraph (c) to read as follows:
Sec. 30.313 How is a review of the written record conducted?
* * * * *
(c) Any objection that is not presented to the FAB reviewer,
including any objection to NIOSH'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.
0
32. Amend Sec. 30.314 by revising paragraphs (a) introductory text and
(b) to read as follows:
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,
teleconference, videoconference or other electronic means. As part of
the hearing
[[Page 3051]]
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.
* * * * *
(b) The FAB reviewer will mail a notice of the time and place of
the hearing to the claimant and any representative at least 30 days
before the scheduled hearing date. The FAB reviewer may mail a hearing
notice less than 30 days prior to the hearing if the claimant and/or
representative waives the above 30-day notice period in writing. 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 NIOSH'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.
* * * * *
0
33. Amend Sec. 30.315 by revising paragraph (a) to read as follows:
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, or if the claimant and/or
representative cancels or fails to attend a scheduled hearing, 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.
* * * * *
0
34. Revise Sec. 30.318 to read as follows:
Sec. 30.318 How will FAB consider objections to NIOSH's
reconstruction of a radiation dose, or to OWCP's calculation of the
recommended probability of causation, in a Part B claim for radiogenic
cancer?
(a) If the claimant objects to NIOSH's reconstruction of the
radiation dose to which the employee was exposed, either in writing or
at the oral hearing, the FAB reviewer has the discretion to consult
with NIOSH as part of his or her consideration of any objection.
However, the HHS dose reconstruction regulation, which provides
guidance for the technical methods developed and used by NIOSH to
provide a reasonable estimate of the radiation dose received by an
employee, is binding on FAB. Should this consultation take place, the
FAB reviewer will properly document it in the case. Whether or not
NIOSH is consulted, and as provided for in Sec. 30.317, the FAB
reviewer may decide to return the case to the district office for
referral to NIOSH for such further action as may be appropriate.
(b) If the claimant objects to OWCP's calculation of the
recommended probability of causation in a Part B radiogenic cancer
claim, the FAB reviewer has the discretion to consider if OWCP used
incorrect factual information when it performed this calculation.
However, the statute requires that OWCP use a particular methodology,
established by regulations issued by HHS at 42 CFR part 81, when it
calculates the recommended probability of causation.
0
35. Amend Sec. 30.319 by revising paragraph (b) to read as follows:
Sec. 30.319 May a claimant request reconsideration of a final
decision of the FAB?
* * * * *
(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
other carrier's date marking, or on the date that such written request
is actually received, whichever is the earliest determinable date.
* * * * *
0
36. Amend Sec. 30.320 by revising paragraph (b) to read as follows:
Sec. 30.320 Can a claim be reopened after the FAB has issued a final
decision?
* * * * *
(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 a diagnosed medical condition, covered employment, or exposure to a
toxic substance. A written request to reopen a claim may also be
supported by identifying 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. 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.
* * * * *
0
37. Amend Sec. 30.400 by revising paragraphs (a) and (c) and adding
paragraph (d) to read as follows:
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. The employee need not be
disabled to receive such treatment. 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 through the automated authorization process
described in Sec. 30.700. 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.
* * * * *
(c) Any qualified physician may provide medical services,
appliances and supplies to the covered Part B employee or the covered
Part E
[[Page 3052]]
employee. A hospital or a provider of medical services or supplies may
furnish appropriate services, drugs, supplies and appliances, so long
as such provider possesses all applicable licenses required under State
law and has not been excluded from participation in the program under
subpart H of this part. 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, may offset the cost of prior
rental payments against a future purchase price, and may provide
refurbished appliances where appropriate. Also, OWCP may authorize
payment for durable medical equipment and modifications to a home or
vehicle, to the extent that OWCP deems it necessary and reasonable.
With respect to prescribed medications, OWCP may require the use of
generic equivalents where they are available. OWCP may contract with a
specific provider or providers to supply non-physician medical services
or supplies.
(d) In circumstances when a covered employee dies after filing a
claim but before such claim is accepted, OWCP will pay for medical
treatment for all accepted illnesses, retroactive to the date that the
employee filed the claim, if the deceased employee's survivor(s) files
a claim that is accepted under Part B and/or Part E of EEOICPA. If this
occurs, OWCP shall only pay either the provider(s) or the employee's
estate for medical treatment that the employee obtained after filing
his or her claim.
0
38. Revise Sec. 30.403 to read as follows:
Sec. 30.403 Will OWCP pay for home health care, nursing home, and
assisted living services?
(a) OWCP will authorize and pay for home health care claimed under
section 7384t of the Act, whether or not such care constitutes skilled
nursing care, so long as the care has been determined to be medically
necessary. OWCP will pay for approved periods of care by a registered
nurse, licensed practical nurse, home health aide or similarly trained
individual, subject to the pre-authorization requirements described in
paragraph (c) of this section.
(b) OWCP will also authorize and pay for periods of nursing home
and assisted living services claimed under section 7384t of the Act, so
long as such services have been determined to be medically necessary,
subject to the pre-authorization requirements described in paragraph
(c) of this section.
(c) To file an initial claim for home health care, nursing home, or
assisted living services, the beneficiary must submit Form EE-17A to
OWCP and identify his or her treating physician. OWCP then provides the
treating physician with Form EE-17B, which asks the physician to submit
a letter of medical necessity and verify that a timely face-to-face
physical examination of the beneficiary took place. This particular
pre-authorization process must be followed only for the initial claim
for home health care, nursing home, and assisted living services; any
subsequent request for pre-authorization must satisfy OWCP's usual
medical necessity requirements. If a claimant disagrees with the
decision of OWCP that the claimed services are not medically necessary,
he or she may utilize the adjudicatory process described in subpart D
of this part.
0
39. Amend Sec. 30.405 by revising paragraphs (b) and (c) to read as
follows:
Sec. 30.405 After selecting a treating physician, may an employee
choose to be treated by another physician instead?
* * * * *
(b) OWCP will approve the request if it determines that the reasons
submitted are credible and supported by probative factual and/or
medical evidence, as appropriate. 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) OWCP may deny a requested change of physician if it determines
that the reasons submitted are not both credible and supported by
probative evidence. If a claimant disagrees with such an informal
denial, he or she may utilize the adjudicatory process described in
subpart D of this part.
0
40. Amend Sec. 30.410 by adding paragraph (c) to read as follows:
Sec. 30.410 Can OWCP require an employee to be examined by another
physician?
* * * * *
(c) OWCP may administratively close the claim and suspend
adjudication of any pending matters if the employee refuses to attend a
second opinion examination.
0
41. Amend Sec. 30.411 by adding paragraph (d) to read as follows:
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?
* * * * *
(d) OWCP may administratively close the claim and suspend
adjudication of any pending matters if the employee refuses to attend a
referee medical examination.
0
42. Amend Sec. 30.416 by revising paragraph (a) to read as follows:
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
handwritten or electronic signature. OWCP may require an original
signature on the report.
* * * * *
0
43. Amend Sec. 30.500 by revising paragraph (a)(2) and adding
paragraph (c) to read as follows:
Sec. 30.500 What special statutory definitions apply to survivors
under EEOICPA?
(a) * * *
(2) Child of a deceased covered Part B employee or deceased covered
Part E employee means only a biological child, a stepchild or an
adopted child of that individual.
* * * * *
(c) For the purposes of paying compensation to survivors under Part
E of EEOICPA, OWCP will use the following additional definitions:
(1) Covered child means a child that is, 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. A child's marital status or dependency on the covered employee
for support is irrelevant to his or her eligibility for benefits as a
covered child under Part E.
(2) Incapable of self-support means that the child must have been
physically and/or mentally incapable of self-support at the time of the
covered employee's death.
0
44. Amend Sec. 30.501 by revising paragraphs (a) introductory text and
(b) introductory text to read as follows:
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
[[Page 3053]]
follows, subject to the qualifications set forth in Sec. 30.5(hh)(3):
* * * * *
(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(hh)(3):
* * * * *
0
45. Revise Sec. 30.502 to read as follows:
Sec. 30.502 When is entitlement for survivors determined for
purposes of EEOICPA?
Entitlement to any lump-sum payment for survivors under the
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(c)(1), 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.
0
46. Amend Sec. 30.509 by revising paragraph (c) to read as follows:
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?
* * * * *
(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 American Medical
Association's Guides to the Evaluation of Permanent Impairment (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.
0
47. Amend Sec. 30.600 by revising paragraph (c)(2) to read as follows:
Sec. 30.600 May a claimant designate a representative?
* * * * *
(c) * * *
(2) A representative does not have authority to sign the Form EE-1
(described in Sec. 30.100(a)) or the Form EE-2 (described in Sec.
30.101(a)) for his or her client. A representative also does not have
authority to sign the Form EN-20 (described in Sec. 30.505(c)) for his
or her client
0
48. Amend Sec. 30.601 by revising the introductory text to read as
follows:
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) or the standards regarding conflicts of interest
adopted by OWCP. Under those standards, authorized representatives are
prohibited from having private, non-representational financial
interests with respect to their client's EEOICPA claims. This does not
include their fee for serving as a representative. A Federal employee
may act as a representative only:
* * * * *
0
49. Amend Sec. 30.603 by revising paragraph (a) to read as follows:
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 payment made to
the claimant set out in paragraph (b) of this section, exclusive of
costs and expenses.
* * * * *
0
50. Amend Sec. 30.617 by revising paragraph (b)(2) to read as follows:
Sec. 30.617 What happens if this type of tort suit was filed during
the period from October 30, 2000 through December 28, 2001?
* * * * *
(b) * * *
(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 NIOSH, or a diagnosis of a covered beryllium
illness, as applicable.
0
51. Amend Sec. 30.618 by revising paragraph (c)(2) to read as follows:
Sec. 30.618 What happens if this type of tort suit was filed after
December 28, 2001?
* * * * *
(c) * * *
(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 NIOSH, or a diagnosis of a covered beryllium
illness, as applicable.
0
52. Revise Sec. Sec. 30.700 through 30.702 to read as follows:
Sec. 30.700 In general, what responsibilities do providers have with
respect to enrolling with OWCP, seeking authorization to provide
services, billing, and retaining medical records?
(a) All providers must enroll with OWCP or its designated bill
processing agent (hereinafter OWCP in this subpart) to have access to
the automated authorization system and to submit medical bills to OWCP.
To enroll, the provider must complete and submit a Form OWCP-1168 to
the appropriate location noted on that form. By completing and
submitting this form, providers certify that they satisfy all
applicable Federal and state licensure and regulatory requirements that
apply to their specific provider or supplier type. The provider must
maintain documentary evidence indicating that it satisfies those
requirements. The provider is also required to notify OWCP immediately
if any information provided to OWCP in the enrollment process changes.
Federal government medical officers, private physicians and hospitals
are also 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.
(b) Where a medical provider intends to bill for a procedure where
prior authorization is required, authorization must be requested from
OWCP.
(c) After enrollment, a provider must submit all medical bills to
OWCP through its bill processing portal and include the Provider
Number/ID obtained through enrollment or other identifying number
required by OWCP.
[[Page 3054]]
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. OWCP may withhold payment for services until
such report or evidence is provided. The physician or provider shall
itemize the charges on Form OWCP-1500 or CMS-1500 (for professional
charges or medicinal drugs dispensed in the office), 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 to OWCP.
(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. OWCP has discretion to determine which of these codes may
be utilized in the billing process. OWCP also has the authority to
create and supply specific procedure codes that will be used by OWCP to
better describe and allow specific payments for special services. These
OWCP-created codes will be issued to providers by OWCP as appropriate
and may only be used as authorized by OWCP. For example, a physician
conducting a referee or second opinion examination as described in
Sec. Sec. 30.410 through 30.412 will be furnished an OWCP-created
code. A provider may not use an OWCP-created code for other types of
medical examinations or services. When no code is submitted to identify
the services performed, the bill will be returned to the provider and/
or denied.
(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 or covered illness is necessary for more than 30 days.
(1)(i) Hospitals shall submit charges for both inpatient and
outpatient medical and surgical treatment or supplies promptly to OWCP
on Form OWCP-04 or UB-04.
(ii) OWCP may adopt a Home Health Prospective Payment System
(HHPPS), as developed and implemented by the Centers for Medicare and
Medicaid Services (CMS) within HHS for Medicare, while modifying the
allowable costs under Medicare to account for deductibles and other
additional costs that are covered by EEOICPA. If adopted, home health
care providers will be required to submit bills on Form OWCP-04 or UB-
04 and to use Health Insurance Prospective Payment System codes and
other coding schemes.
(2) Pharmacies shall itemize charges for prescription medications,
appliances or supplies on electronic or paper-based bills and submit
them promptly to OWCP. 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
to OWCP. Such charges shall be subject to any applicable OWCP fee
schedule.
(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, appropriate and properly billed in
accordance with accepted industry standards. For example, accepted
industry standards preclude upcoding billed services for extended
medical appointments when the employee actually had a brief routine
appointment, or charging for the services of a professional when a
paraprofessional or aide performed the service. Also, industry
standards prohibit unbundling services to charge separately for
services that should be billed as a single charge. 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 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 handwritten or electronic
signature of the provider when required; and identify the procedures
using HCPCS/CPT codes, RCCs or NDC numbers. Otherwise, OWCP may deny
the bill, and the provider must correct and resubmit the bill. 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, or Form
OWCP-04 or UB-04 prepared by the provider, and a medical report as
provided in Sec. 30.700, to OWCP for consideration.
(1) The provider of such service shall state each diagnosed
condition and furnish the applicable ICD-9-CM code, or as revised, 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. If no
code or description is received, OWCP will deny the reimbursement
request, and correction and resubmission will be required.
(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),
a copy of the employee's credit card receipt or a provider billing form
indicating a zero balance due.
(b) If a 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) OWCP may waive the requirements of paragraphs (a) and (b) of
[[Page 3055]]
this section 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 must bear the
handwritten or electronic signature of the provider when required, with
evidence of payment. Payment for medical and surgical treatment,
appliances or supplies shall in general be no greater than the maximum
allowable charge for such service determined by OWCP, as set forth in
Sec. 30.705. OWCP will issue a letter decision on whether to reimburse
an employee for out-of-pocket medical expenses, and the amount of any
reimbursement. A claimant who disagrees with OWCP's letter decision may
request a formal recommended decision and utilize 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, OWCP shall advise the employee of the maximum allowable charge
for the service in question and of his or her responsibility to ask the
provider to refund to the employee, or credit to the employee's
account, the amount he or she paid 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 charge
which 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.
0
53. Revise Sec. Sec. 30.705 through 30.707 to read as follows:
Sec. 30.705 What services are covered by the OWCP fee schedule?
(a) Payment for medical and other health services, devices and
supplies 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. In the future, OWCP may also decide to
implement a fee schedule for services provided in nursing homes.
(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 for professional medical
services 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 Relative Value Unit
(RVU) 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 assignment of Geographic Practice Cost Index (GPCI) values which
represent the relative work, practice expenses and malpractice expenses
relative to other localities throughout the country; and a monetary
value assignment (conversion factor) for one unit of value for each
coded service.
Sec. 30.707 How are payments to providers calculated?
Payment for a procedure, service or device identified by a HCPCS/
CPT code shall not exceed the amount derived by multiplying the RVU
values for that procedure by the GPCI values for services in that area
and by the conversion factor to arrive at a dollar amount assigned to
one unit in that category of service.
(a) The ``locality'' which serves as a basis for the determination
of cost is defined by the Bureau of Census Metropolitan Statistical
Areas. OWCP shall base the determination of the relative per capita
cost of medical care in a locality using information about enrollment
and medical cost per county, provided by CMS.
(b) OWCP shall assign the 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 it considers appropriate. The geographic adjustment factor
shall be that designated by GPCI values 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
as appropriate using OWCP's processing experience and internal data.
(c) For example, if the RVUs 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 conversion factor 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 GPCI values for the
locality times the conversion factor. If the GPCI values 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
0
54. Revise Sec. Sec. 30.709 and 30.710 to read as follows:
Sec. 30.709 How are payments for medicinal drugs determined?
Unless otherwise specified by OWCP, 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. OWCP may, in its
discretion, contract for or require the use of specific providers for
certain medications.
(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,
which will not be affected by the location or type of provider
dispensing the medication.
(b) The NDC numbers, the average wholesale prices, and the
dispensing fee shall be reviewed from time to time and updated as
necessary.
(c) With respect to prescribed medications, OWCP may require the
use
[[Page 3056]]
of generic equivalents where they are available.
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 Inpatient Prospective
Payment System (IPPS) devised by CMS. 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 inpatient 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 IPPS 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 IPPS. 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 IPPS
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. Sec. 30.711 through 30.713 [Redesignated as Sec. Sec. 30.712
through 30.714]
0
55a. Redesignate Sec. Sec. 30.711 through 30.713 as Sec. Sec. 30.712
through 30.714.
0
55b. Add new Sec. 30.711 to read as follows:
Sec. 30.711 How are payments for outpatient medical services
determined?
(a) OWCP will pay for outpatient medical services according to
Ambulatory Payment Classifications (APC) based on the Outpatient
Prospective Payment System devised by CMS.
(b) All outpatient medical services will be classified according to
the APC prescribed by CMS for that service in the form of the
Outpatient Prospective Payment System Grouper software program. Each
payment is derived by multiplying the prospectively established scaled
relative weight for the service's clinical APC by a conversion factor
to arrive at a national unadjusted payment rate for the APC. The labor
portion of the national unadjusted payment rate is further adjusted by
the hospital wage index for the area where payment is being made.
(c) If a payable service has no assigned APC, the payment will be
derived from the OWCP Medical Fee Schedule.
(d) OWCP shall review the pre-determined outpatient hospital rates
at least once a year, and may adjust any or all components when OWCP
deems it necessary or appropriate.
0
55c. Revise newly redesignated Sec. Sec. 30.712 and 30.713 to read as
follows:
Sec. 30.712 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, and will pay no more than the
maximum allowable fee for that procedure. If the code is not consistent
with the medical and other evidence or where no code is supplied, the
bill will be returned to the provider for correction and resubmission.
(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. 30.713 If OWCP reduces a fee, may a provider request
reconsideration of the reduction?
(a) A physician or other provider whose charge for service is only
partially paid because it exceeds a maximum allowable amount set by
OWCP may, within 30 days, request reconsideration of the fee
determination.
(1) The provider should make such a request to the district office
with jurisdiction over the employee's claim. The request must be
accompanied by documentary evidence that the procedure performed was
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 at http://www.dol.gov/owcp/energy/index.htm. Within 30 days of
receiving the request for reconsideration, the district office shall
respond in writing stating whether or not an additional amount will be
allowed as reasonable, considering the evidence submitted.
(b) If the district office issues a decision that continues to
disallow a contested amount, the provider may apply to the Regional
Director of the region with jurisdiction over the district office. The
application must be filed within 30 days of the date of such decision,
and it may be accompanied by additional evidence. Within 60 days of
receipt of such application, the Regional Director shall issue a
decision in writing stating whether or not an additional amount will be
allowed as reasonable, considering the evidence submitted. This
decision is final, and shall not be subject to further review.
0
56. Revise Sec. 30.715 to read as follows:
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
[[Page 3057]]
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;
(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;
(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;
(i) Failed to inform OWCP of any change in their provider status as
required in Sec. 30.700; or
(j) Engaged in conduct related to care of an employee's
occupational illness or covered illness that OWCP finds to be
misleading, deceptive or unfair.
0
57. Amend Sec. 30.716 by adding paragraph (c) to read as follows:
Sec. 30.716 What will cause OWCP to automatically exclude a
physician or other provider of medical services and supplies?
* * * * *
(c) A provider may be excluded on a voluntary basis at any time.
0
58. Revise Sec. Sec. 30.717 through 30.721 to read as follows:
Sec. 30.717 When are OWCP's exclusion procedures initiated?
(a) Upon receipt of information indicating that a physician,
hospital or provider of medical services or supplies (hereinafter the
provider) has or may have engaged in activities enumerated in
paragraphs (c) through (j) of Sec. 30.715, OWCP will forward that
information to the Department of Labor's Office of Inspector General
(DOL OIG) for its consideration. If the information was provided
directly to DOL OIG, DOL OIG will notify OWCP of its receipt and
implement the appropriate action within its authority, unless such
notification will or may compromise the identity of confidential
sources, or compromise or prejudice an ongoing or potential criminal
investigation.
(b) DOL OIG will conduct such action as it deems necessary, and,
when appropriate, provide a written report as described in paragraph
(c) of this section to OWCP. OWCP will then determine whether to
initiate procedures to exclude the provider from participation in the
EEOICPA program. If DOL OIG determines not to take any further action,
it will promptly notify OWCP of such determination.
(c) If DOL OIG discovers reasonable cause to believe that
violations of Sec. 30.715 have occurred, it shall, when appropriate,
prepare a written report, i.e., investigative memorandum, and forward
the report along with supporting evidence to OWCP. The report shall be
in the form of a single memorandum in narrative form with attachments.
(1) The report should contain all of the following elements:
(i) A brief description and explanation of the subject provider or
providers;
(ii) A concise statement of the DOL OIG's findings upon which
exclusion may be based;
(iii) A summary of the events that make up the DOL OIG's findings;
(iv) A discussion of the documentation supporting DOL OIG's
findings;
(v) A discussion of any other information that may have bearing
upon the exclusion process; and
(vi) The supporting documentary evidence including any expert
opinion rendered in the case.
(2) The attachments to the report should be provided in a manner
that they may be easily referenced from the report.
Sec. 30.718 How is a provider notified of OWCP's intent to exclude
him or her?
Following receipt of the investigative report, OWCP will determine
if there exists a reasonable basis to exclude the provider or
providers. If OWCP determines that such a basis exists, OWCP shall
initiate the exclusion process by sending the provider a letter, by
certified mail and with return receipt requested (or equivalent
services from a commercial carrier), 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 OWCP 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 a decision on exclusion 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 deciding official, to request a formal hearing before an
administrative law judge;
(e) A notice that should the provider fail to respond (as described
in Sec. 30.719) the letter of intent within 60 days of receipt, the
deciding official may deem the allegations made therein to be true and
may order exclusion of the provider without conducting any further
proceedings; and
(f) The address to where the response from the provider should be
sent.
Sec. 30.719 What requirements must the provider's response and
OWCP's decision meet?
(a) The provider's response 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 respond to the letter of intent
within 60 days of receipt, the deciding official may deem the
allegations made therein to be true and may order exclusion of the
provider.
(c) The provider may inspect or request copies of information in
the record at any time prior to the deciding official's decision by
making such request to OWCP within 20 days of receipt of the letter of
intent.
(d) OWCP shall have 30 days to answer the provider's response. That
answer will be forwarded to the provider, who shall then have 15 days
to reply. Any response from the provider may be forwarded to DOL OIG,
should OWCP deem it appropriate, to obtain additional information which
may be relevant to the provider's response.
(e) The deciding official shall be the Regional Director in the
region in which the provider is located unless otherwise specified by
the Director for Energy Employees Occupational Illness Compensation.
[[Page 3058]]
(f) The deciding official 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 (or equivalent service from a
commercial carrier). 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 deciding official 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 the presentation of oral argument or evidence;
and
(c) 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 deciding official receives a timely request for hearing,
he or she 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 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
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 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 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.
0
59. Amend Sec. 30.723 by revising paragraph (b) to read as follows:
Sec. 30.723 How will the administrative law judge conduct the
hearing and issue the recommended decision?
* * * * *
(b) The administrative law judge shall receive such relevant
evidence as may be adduced at the hearing. Parties to the hearing are
the provider and OWCP. 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.
* * * * *
0
60. Revise Sec. 30.724 to read as follows:
Sec. 30.724 How does a recommended decision become final?
(a) Within 30 days from the date the recommended decision is
issued, the provider may state, in writing, any objections to the
recommended decision. This written statement should be filed with the
Director for Energy Employees Occupational Illness Compensation.
(b) For the purposes of determining whether the written statement
referred to in paragraph (a) of this section has been timely filed with
the Director for Energy Employees Occupational Illness Compensation,
the statement will be considered to be ``filed'' on the date that the
provider mails it to the Director, as determined by postmark or other
carrier's date marking, or the date that such written statement is
actually received by the Director, whichever is earlier.
(c) Written statements objecting to the recommended decision may be
filed 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 the Director;
(4) A substantial question of law, policy, or discretion is
involved; or
(5) A prejudicial error of procedure was committed.
(d) Each issue shall be separately numbered and plainly and
concisely stated, and shall be supported by detailed citations to the
record when assignments of error are based on the record, and by
statutes, regulations or principal authorities relied upon. Except for
good cause shown, no assignment of error by the provider shall rely on
any question of fact or law upon which the administrative law judge had
not been afforded an opportunity to pass.
(e) If a written statement of objection is filed within the
allotted period of time, the Director for Energy Employees Occupational
Illness Compensation will review the objection. The Director will
forward the written objection to DOL OIG, which will have 14 calendar
days from that date to respond. Any response from DOL OIG will be
forwarded to the provider, which will have 14 calendar days from that
date to reply.
(f) The Director for Energy Employees Occupational Illness
Compensation will consider the recommended decision, the written record
and any response or reply received and will then issue a written, final
decision either upholding or reversing the exclusion.
(g) If no written statement of objection is filed within the
allotted period of time, the Director for Energy Employees Occupational
Illness Compensation will issue a written, final decision accepting the
recommendation of the administrative law judge.
(h) The decision of the Director for Energy Employees Occupational
Illness Compensation shall be final with respect to the provider's
participation in the program, and shall not be subject to further
review.
0
61. Amend Sec. 30.725 by revising paragraph (a) to read as follows:
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;
(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; and
(4) The state or local authority responsible for licensing or
certifying the excluded provider.
* * * * *
[[Page 3059]]
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62. Amend Sec. 30.726 by revising paragraph (c) to read as follows:
Sec. 30.726 How can an excluded provider be reinstated?
* * * * *
(c) A request for reinstatement may be accompanied by a request for
oral presentation. Oral presentations will be allowed only in unusual
circumstances where it will materially aid the decision process.
* * * * *
0
63. Amend Sec. 30.800 by revising paragraph (c) to read as follows:
Sec. 30.800 What types of wage-loss are compensable under Part E of
EEOICPA?
* * * * *
(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(s).
0
64. Amend Sec. 30.801 as follows:
0
a. Revise paragraph (a);
0
b. Redesignate paragraphs (c), (d), and (e) as paragraphs (d), (e), and
(h), respectively;
0
c. Add new paragraph (c);
0
d. Revise newly redesignated paragraph (e); and
0
e. Add paragraphs (f) and (g).
The revisions and additions read as follows:
Sec. 30.801 What special definitions does OWCP use in connection
with Part E wage-loss determinations?
* * * * *
(a) Average annual wage means 12 times the average monthly wage of
a covered Part E employee for the 36 months preceding the month 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 (referred to as
the ``trigger month''), excluding any months during which the employee
was unemployed. Because being ``retired'' is not equivalent to being
``unemployed,'' months during which an employee had no wages because he
or she was retired will not be excluded from this calculation.
* * * * *
(c) Month during which the employee was unemployed means any month
during which the covered Part E employee had $250 (in constant 2013
dollars) or less in wages unless the month is one during which the
employee was retired.
* * * * *
(e) Quarter during which the employee was unemployed means any
quarter during which the covered Part E employee had $750 (in constant
2013 dollars) or less in wages unless the quarter is one during which
the employee was retired.
(f) Trigger month means the calendar month during which the
employee first experienced a loss in wages due to exposure to a toxic
substance at a DOE facility or RECA section 5 facility.
(g) Wages mean all monetary payments that the covered Part E
employee earns from his or her regular employment or services that are
taxed as income by the Internal Revenue Service. Salaries, overtime
compensation, sick leave, vacation leave, tips, and bonuses received
for employment services are considered wages under this subpart.
However, capital gains, IRA distributions, pensions, annuities,
unemployment compensation, state workers' compensation benefits,
medical retirement benefits, and Social Security benefits are not
considered wages.
* * * * *
0
65. Revise Sec. 30.805 to read as follows:
Sec. 30.805 What are the criteria for eligibility for wage-loss
benefits under Part E?
(a) In addition to satisfying the general eligibility requirements
applicable to all Part E claims, a claimant seeking benefits for
calendar years of qualifying wage-loss has the burden of proof to
establish each of the following criteria:
(1) He or she held a job at which he or she earned wages;
(2) He or she experienced a loss in those wages in a particular
month (referred to as the ``trigger month'' in this section);
(3) The wage-loss in the trigger month was caused by the covered
Part E employee's covered illness, i.e., that he or she would have
continued to earn wages in the trigger month from that employment but
for the covered illness;
(4) His or her average annual wage;
(5) His or her normal retirement age and the calendar year in which
he or she would reach that age;
(6) Beginning with the calendar year of the trigger month, the
percentage of the average annual wage that was earned in each calendar
year up to and including the retirement year;
(7) The number of those calendar years in which the covered illness
caused the covered Part E employee to earn 50% or less of his or her
average annual wage; and
(8) The number of those calendar years in which the covered illness
caused him or her to earn more than 50% but not more than 75% of his or
her average annual wage.
(b) OWCP will discontinue development of a request for wage-loss
benefits, during which the claimant must meet his or her burden of
proof to establish each of the criteria listed in paragraph (a) of this
section, at any point when the claimant is unable to meet such burden
and proceed to issue a recommended decision to deny the request.
0
66. Revise Sec. 30.806 to read as follows:
Sec. 30.806 What kind of medical evidence must the claimant submit
to prove that he or she lost wages due to a covered illness?
OWCP requires the submission of rationalized medical evidence of
sufficient probative value to convince the fact-finder that the covered
Part E employee experienced a loss in wages in his or her trigger month
due to a covered illness, i.e., medical evidence based on a physician's
fully explained and reasoned decision (see Sec. 30.805(a)(3)). A loss
in wages in the trigger month due solely to non-covered illness
matters, such as a reduction in force or voluntary retirement, is not
proof of compensable wage-loss under Part E.
0
67. Add Sec. 30.807 immediately preceding the undesignated center
heading ``Determinations of Average Annual Wage and Percentages of
Loss'' to read as follows:
Sec. 30.807 What factual evidence does OWCP use to determine a
covered Part E employee's average annual wage?
(a) OWCP may rely on annual or quarterly wage information reported
to the Social 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 needed 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 as wages (see Sec. 30.801(g)).
(b) A claimant who disagrees with the evidence OWCP has obtained
under paragraph (a) of this section 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. The average annual wage and/or
wage-loss of the covered Part E employee will
[[Page 3060]]
then be determined by OWCP in the exercise of its discretion.
0
68. Amend Sec. 30.810 by revising paragraphs (a) through (d) to read
as follows:
Sec. 30.810 How will OWCP calculate the average annual wage of a
covered Part E employee?
* * * * *
(a) Aggregate the wages for the 36 months that preceded the trigger
month, excluding any month during which the employee was unemployed;
(b) Add any additional wages earned by the employee during those
same months as evidenced by records described in Sec. 30.807;
(c) Divide the sum of paragraphs (a) and (b) of this section by 36,
less the number of months during which the employee was unemployed; and
(d) Multiply this figure by 12 to calculate the covered Part E
employee's average annual wage.
0
69. Amend Sec. 30.811 as follows:
0
a. Revise paragraph (a);
0
b. Remove paragraph (b); and
0
c. Redesignate paragraphs (c) and (d) as paragraphs (b) and (c),
respectively.
The revision reads as follows:
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 through 30.807 to
compare the calendar-year wages for the covered Part E 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 trigger month, 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.
* * * * *
0
70. Amend Sec. 30.901 by revising paragraphs (a) and (b) to read as
follows:
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 an ``impairment rating.''
(b) 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 and
experience related to particular conditions and other objective
factors.
* * * * *
0
71. Revise Sec. 30.902 to read as follows:
Sec. 30.902 How will OWCP calculate the amount of the award of
impairment benefits that is payable under Part E?
(a) OWCP will multiply the percentage points of the impairment
rating by $2,500 to calculate the amount of the award.
(b) An employee's impairment rating may be comprised of multiple
impairments of organs and body functions due to multiple covered
illnesses. If an impairment award is payable based on a whole person
impairment rating in which at least one of the impairments is subject
to a reduction under Sec. Sec. 30.505(b) and/or 30.626, OWCP will
reduce the impairment award proportionately.
0
72. Amend Sec. 30.908 by revising paragraphs (b) and (c) to read as
follows:
Sec. 30.908 How will the FAB evaluate new medical evidence submitted
to challenge the impairment determination in the recommended decision?
* * * * *
(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 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
impairment rating after it has evaluated all relevant evidence and
argument in the record.
Signed at Washington, DC, this 28th day of January, 2019.
Julia K. Hearthway,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2019-00581 Filed 2-7-19; 8:45 am]
BILLING CODE 4510-CR-P