Department of Labor: 2002031841

Thursday,
December 26, 2002
Part II
Department of Labor
Office of Workers’ Compensation
Programs
20 CFR Parts 1 and 30

Performance of Functions Under This
Chapter; Claims for Compensation Under
the Energy Employees Occupational
Illness Compensation Program Act of
2000, as Amended; Final Rule
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78874 Federal Register / Vol. 67, No. 248 / Thursday, December 26, 2002 / Rules and Regulations
DEPARTMENT OF LABOR collection requirements under the claims process, entitlement

Paperwork Reduction Act of 1995 (44 qualifications, and the extent of medical
Office of Workers’ Compensation U.S.C. 3501 et seq.). It should be noted benefits provided under the program.
Programs that OMB approval of the new The Department’s section-by-section
information collection requirements analysis of the timely comments it
20 CFR Parts 1 and 30 will be a revision to the currently received is set forth below (see sections
RIN 1215–AB32 approved collection in OMB Control No. I and II).
1215–197. Some minor changes have been made
Performance of Functions Under This Comments: Written comments on the to the interim final regulations that did
Chapter; Claims for Compensation new information collection not result from any comments. One such
Under the Energy Employees requirements in §§ 30.112 and 30.213 change is the addition of new paragraph
Occupational Illness Compensation must be received by January 27, 2003. (b) to § 30.15 to recognize that unpaid
Program Act of 2000, as Amended ADDRESSES: Written comments on the lump-sum payments of compensation
new information collection under the Act may be subject to
AGENCY: Office of Workers’ requirements in §§ 30.112 and 30.213 garnishment to collect overdue alimony
Compensation Programs, Employment should be sent to the Office of and child support. A second change is
Standards Administration, Labor. Information and Regulatory Affairs, the addition of a clause in § 30.115(a)
ACTION: Final rule. Office of Management and Budget, that exempts any non-radiogenic cancer
Attention: Desk Officer for Employment listed by the Department of Health and
SUMMARY: On May 25, 2001, the
Standards Administration, Washington, Human Services (HHS) in 42 CFR 81.30
Department of Labor (DOL) published
DC 20503. from referral to HHS for dose
interim final regulations that governed
FOR FURTHER INFORMATION CONTACT: reconstruction, because that regulation
its responsibilities under the Energy
Shelby Hallmark, Director, Office of affirmatively directs DOL to ‘‘assign a
Employees Occupational Illness
Workers’ Compensation Programs, probability of causation of zero’’ to any
Compensation Program Act of 2000, as such cancers (and therefore a referral for
amended (EEOICPA or Act). The Act Employment Standards Administration,
U.S. Department of Labor, Room S– dose reconstruction would serve no
provides lump-sum payments and useful purpose); this exemption replaces
medical benefits to covered employees 3524, 200 Constitution Avenue, NW.,
Washington, DC 20210, Telephone: the one in former § 30.115(b). In
and, where applicable, to survivors of addition, § 30.213 has been divided into
such employees, of the Department of 202–693–0036 (this is not a toll-free
number). two sections to better reflect the two
Energy (DOE), its predecessor agencies methods the Office of Workers’
and certain of its vendors, contractors SUPPLEMENTARY INFORMATION: The
Compensation Programs (OWCP) uses to
and subcontractors. The Act also Department of Labor’s interim final develop cancer claims. Similarly,
provides smaller lump-sum payments regulations implementing its § 30.505 has been divided into two
and medical benefits to individuals responsibilities under the Energy sections to distinguish the pre-payment
found to be eligible for an award under Employees Occupational Illness actions OWCP will take before it pays
section 5 of the Radiation Exposure Compensation Program Act of 2000, as compensation from the payment
Compensation Act, as amended (RECA), amended (42 U.S.C. 7384 et seq.), were mechanisms it will use to make such
and where applicable, to their survivors. published in the Federal Register on payments. To accomplish this,
At the same time the Department May 25, 2001 (66 FR 28948). The paragraphs (b), (c) and (d) from former
published the interim final regulations, interim final rule took effect on July 24, § 30.505 are retained in final § 30.505,
it also invited written comments and 2001 and originally included a 90-day and the remaining paragraphs from
advice from interested parties regarding period for comment. On September 12, former § 30.505 are now in final
possible changes to those regulations. 2001, the Department retroactively § 30.506.
This document amends the interim final reopened the comment period on the This rule also corrects several sections
regulations based on comments that the interim final rule and extended the of the interim final regulations to
Department received, and also includes period for comment through September conform the final regulations with the
changes necessary to conform the 24, 2001 (66 FR 47382). During this technical amendments to sections 7384l,
regulations to several technical comment period, the Department 7384q, 7384r, 7384s, 7384u, 7385d, and
amendments to the EEOICPA that received 216 timely comments: Six from 7385g of the Act made by section
Congress enacted after the interim final congressional representatives; 10 from 2403(a) of Public Law 107–20, 115 Stat.
regulations were published. labor organizations; 6 from physicians; 155, 175 (July 24, 2001), and by section
DATES: Effective Date: This rule will be seven from attorneys; 13 from advocacy 3151(a) of Public Law 107–107, 115
effective on February 24, 2003, and will groups; one from a lay representative; Stat. 1012, 1371 (December 28, 2001).
apply to all claims filed on or after that one from the City Council of the City of As a result of these corrections, § 30.5
date. This rule will also apply to any Niagara Falls, New York; one from the now includes both the current list of
claims that are pending on February 24, Department of Defense; and 171 from specified cancers and the current
2003. individuals. The Department also method of establishing chronic silicosis,
Compliance Date: Affected parties do received untimely comments from two §§ 30.500 through 30.502 reflect the
not have to comply with the new advocacy groups and four individuals; current statutory provisions on
information collection requirements in the points they raised were also raised survivors, § 30.603 has been added to
§§ 30.112 and 30.213 until DOL by the timely commenters. A majority of reflect the amended attorney fee
publishes in the Federal Register the the commenters addressed the issue of limitation provision, and §§ 30.615 and
control number assigned by the Office of survivor benefits (out of the 143 30.616 have been rewritten as §§ 30.615
Management and Budget (OMB) to these commenters that addressed this issue, through 30.619 to properly reflect the
information collection requirements. 85 commenters addressed this issue amended election of remedies
Publication of the control number will alone). Other commenters addressed a provision. Section 2403(b) of Public
notify the public that OMB has range of issues, including coverage for Law 107–20 provided that the addition
approved the new information particular illnesses, the administrative of ‘‘renal cancers’’ to the list of specified
Federal Register / Vol. 67, No. 248 / Thursday, December 26, 2002 / Rules and Regulations 78875
cancers took effect on October 1, 2001, Section 30.5(cc) available under section 7384u(a) of the
and section 3151(a)(4)(D) of Public Law One physician suggested that the Act. However, unless it receives a
107–107 provided that the changes to definition of ‘‘qualified physician’’ is ‘‘claim’’ for benefits under the Act,
the survivor provisions were retroactive too broad and should be changed. This OWCP has no way of knowing who
to July 1, 2001. The remainder of the suggestion was not adopted because the might be entitled to such benefits since
amendments to the Act were effective as term in question is only used to it does not have access to the RECA
of December 28, 2001. distinguish physicians who may claims information available to DOJ.
provide medical services to covered Therefore, the suggestion to drop the
When publishing a final rule
employees from those who have been requirement for filing a claim was not
following a comment period, it is adopted.
customary to publish only the changes excluded from participation in the
program in accordance with the One congressional representative
that have been made to the rule; asked if there was a time limit for filing
however, in order to be more user- procedures described in §§ 30.715
through 30.726 of these regulations. The claims of July 31, 2001. Although
friendly, the Department is publishing sections 7384s, 7384t and 7384u of the
the entire rule, including the parts that term does not imply anything regarding
the professional qualifications of a Act did not come into effect until July
have not been changed. By doing so, 31, 2001, there is no time limitation for
only one document containing all of the physician.
filing claims in either the Act or the
regulations and commentary needs to be Section 30.5(dd) regulations, and claimants need not file
consulted rather than multiple One commenter requested that OWCP their claims with OWCP prior to a
documents. clarify if lung cancer has a required particular date in order to be entitled to
latency period as one of the specified benefits. However, pursuant to section
I. Comments on the Interim Final
cancers, while two advocacy groups 7384t(d) of the Act, claimants
Regulations authorized to receive medical benefits
disagreed with the required latency
The section numbers used in the periods for those cancers designated in under the Act may only receive those
headings of the following analysis are section 4(b)(2) of the Radiation benefits for the period subsequent to the
those that were used in the interim final Exposure Compensation Act, as date they submitted a claim.
regulations. Unless otherwise stated, the amended (42 U.S.C. 2210 note). These Sections 30.100(c)(2) and 30.101(d)(2)
section numbers in the text of the two advocacy groups also requested that
OWCP add ‘‘renal cancers’’ to the list of Three congressional representatives,
analysis refer to the numbering used for seven labor organizations, six advocacy
the final regulations. No comments were specified cancers to reflect the
amendment to this provision of the Act groups, two physicians, and three
received with respect to part 1. individuals requested that OWCP, under
made by section 2403(a) of Public Law
Section 30.2 107–20. This section has been rewritten section 7384v of the Act, provide
to clarify that as a specified cancer, lung claimants with assistance in securing
One advocacy group suggested that cancer does not have a required latency medical testing and diagnostic services
OWCP provide EEOICPA claimants with period. However, the latency periods by paying for or reimbursing for such
State workers’ compensation claim that are derived from the RECA are set testing and services. OWCP has made a
forms in addition to EEOICPA claim by statute; OWCP does not have the policy decision to exercise its discretion
forms, as part of OWCP’s role in the authority to alter statutory provisions. to provide assistance by providing
EEOICPA claim process. This suggestion The rewritten section also reflects the individual claimants with information
was not adopted because section 7385o addition of renal cancers to the list of and facilitating development of their
of the EEOICPA names DOE as the specified cancers, as well as the EEOICPA claims. OWCP will not
Federal entity authorized to enter into statutory modification of the provision provide direct financial assistance for
an agreement with the chief executive for leukemia that was made by section medical tests or diagnostic services
officer of a State, to establish 3151(a)(1) of Public Law 107–107. because doing so would be financially
procedures, and to administer the impractical, would not be
Section 30.16 administratively feasible, and, in some
submission and adjudication of such
claims. This separation of functions is Two advocacy groups submitted instances, would duplicate services
also found in Executive Order 13179 comments asking that anti-retaliation available under programs established by
provisions be included in the final DOE or other employers that provide
(‘‘Providing Compensation to America’s
regulations to protect claimants who file screening and medical monitoring of
Nuclear Weapons Workers’’) of
claims under the Act from reprisal in substantial numbers of former
December 7, 2000 (65 FR 77487).
the workplace. OWCP does not have employees. Furthermore, evaluating
However, DOL and DOE have numerous requests could substantially
established joint Resource Centers to authority to implement such provisions
by regulation in the absence of statutory delay the program’s overall claims
provide claimants with assistance, adjudication process, thereby delaying
information and the forms necessary for authorization supporting such action.
Moreover, other workplace payment of benefits in other deserving
filing both Federal and State claims. cases. Administrative difficulties would
discrimination legislation already exists
Section 30.5(bb) to protect claimants from any retaliatory be particularly acute in regard to the
actions for filing a claim under the Act. wide variety of possible radiogenic
One advocacy group suggested that The suggestion was therefore not cancers, since appropriate methods of
the term ‘‘physician’’ should be adopted. diagnosis for these diseases can be
expanded to specifically include controversial. Thus, the suggestion to
dermatologists and other specialists in Sections 30.100(a) and 30.101(a) pay for medical tests and diagnostic
skin cancers. The suggestion was not One advocacy group disagreed with services was not adopted. However,
adopted because these medical the requirement that section 5 RECA OWCP will pay reasonable and
professionals are already included in claimants must file an actual ‘‘claim’’ necessary medical expenses, which
the broad, non-exclusive definition of with OWCP before they can receive the could include tests and diagnostic
‘‘physician’’ that appears in this section. smaller $50,000.00 lump-sum payments services, in those cases that are
accepted, so long as the expenses were evidence is required and how that may not vary the requirements of these
incurred subsequent to the filing of the evidence will be evaluated. Although provisions by regulation.
claim. Language indicating that OWCP the claimant’s evidentiary burden of
Section 30.213
will provide information on the types proof has not been changed, the
and availability of medical testing and regulations more clearly reflect the As noted above, § 30.213 has been
diagnostic services has been added to flexible standard for considering a divided for clarity into two sections to
§ 30.2(a). claimant’s evidence in view of the fact reflect the two methods to claim
that there may be gaps in the record. As benefits for cancer, and the contents
Sections 30.105 and 30.106
noted in §§ 30.105 and 30.106, covered have been rearranged slightly. Section
Three commenters (one of these in employment is verified by DOE. It is 30.213 in the interim final rule has been
two separate comments) questioned the necessary for DOE to have access to renumbered as § 30.214, new § 30.212
reliability of the employment data to be worker records to perform this task, but now specifically addresses claims for
provided by DOE in response to an given the size and scope of the data it cancer not based on membership in the
alleged employment history provided in is impractical to impose restrictive SEC, and § 30.212 in the interim final
support of a claim, and a fourth timeframes on DOE to complete the rule has been renumbered as § 30.213.
commenter inquired about situations verification process. Two advocacy groups, one labor
where DOE would not be able to verify
Section 30.115 organization, and two commenters
an alleged employment history due to
disagreed with the specific eligibility
missing or incomplete records. OWCP Three labor organizations, one
cutoff date for the members of the SEC
anticipates that DOE will be able to advocacy group and one commenter
who were exposed to ionizing radiation
fulfill its responsibilities under suggested that OWCP reconsider the use
in the performance of duty related to
§§ 30.105 and 30.106 of the regulations of dose reconstruction. ‘‘Dose
in the majority of claims, and will work reconstruction’’ is the term used to one of three specified underground
with DOE in an effort to obtain describe the process by which HHS will nuclear tests on Amchitka Island,
employment data sufficient to estimate an employee’s radiation Alaska. Five other commenters (one of
adjudicate those claims for which DOE exposure history. The estimate whom is a physician), the same labor
may not have ready access to work produced in the dose reconstruction organization, one of the advocacy
records. To provide further guidance to process is used by OWCP to determine groups, and one of the two prior
claimants who may fall into this second whether an employee’s cancer is at least commenters also generally questioned
group, new § 30.112 has been added to as likely as not related to the employee’s the limited definition of who can
illustrate alternative methods of exposure to radiation at a covered qualify as a member of the SEC and
establishing the requisite period of facility. For claims seeking coverage for therefore bypass the entire dose
covered employment in the absence of cancer based on the Special Exposure reconstruction process at HHS. The
supporting DOE data. Former § 30.112 Cohort (SEC), no dose reconstruction is criteria for eligibility of members of the
from the interim final rule has been performed because coverage is SEC set out in § 30.213 (renumbered as
renumbered as § 30.113 to accommodate presumed when a member of the SEC § 30.214 in accordance with the revision
this new section. sustains a specified cancer after noted above) are governed by the
beginning employment at a covered explicit terms of section 7384l(14) of the
Section 30.111 Act, and may not be modified in any
facility. Section 7384n of the Act
Nine commenters, five labor specifically requires that a manner by regulation.
organizations, seven advocacy groups, determination concerning coverage of Section 30.214(b)
one physician and one congressional any cancer not subject to the SEC
representative submitted a total of 24 provisions be based upon guidelines Two labor organizations and an
comments on the collection and established to determine the probability advocacy group disagreed with the
assessment of employment and medical that a cancer was caused by exposure to requirement in § 30.214(b) (renumbered
evidence, as well as the assistance to be radiation at a covered facility. That as § 30.215(b) in accordance with the
given by OWCP in that process. In order section also requires that a revision noted above) that employees
to meet its statutory responsibility to determination regarding the probability seeking medical benefits for a
provide assistance to claimants, OWCP of causation incorporate the results of consequential injury of a covered cancer
has held public informational meetings the dose reconstruction. Accordingly, submit rationalized medical evidence of
around the country. With DOE, OWCP since OWCP is not authorized to a causal relationship between the
has also established and staffed ten reconsider the use of dose consequential injury and the covered
resource centers near large populations reconstruction, the suggestion was not cancer. However, this evidentiary
of potential claimants to maximize adopted. However, and as noted above, requirement is commonplace among
accessibility, and staff from these § 30.115 has been revised slightly to State and Federal workers’
resource centers periodically travel to conform the dose reconstruction referral compensation systems and does not
other areas where a significant number process with HHS’s regulations at 42 exceed what is required to obtain these
of potential claimants might reside. CFR part 81. benefits under those other systems.
Finally, § 30.111 provides that OWCP OWCP further notes that under the Act,
will notify claimants of any deficiencies Section 30.207 consequential injuries do not have any
in their claims and provide an One physician, one advocacy group, explicit diagnostic requirements that
opportunity to correct such deficiencies. one labor organization and one must be met (as do the covered
In response to various comments individual submitted five comments on occupational illnesses). Therefore,
received about § 30.111, the regulations the manner of diagnosing covered OWCP concludes that the current
have been revised by adding a new beryllium illnesses. The suggested regulatory requirement for rationalized
§ 30.114 and clarifying former § 30.112 changes to § 30.207 were not adopted medical evidence of a causal
(renumbered as § 30.113 in accordance because § 30.207 mirrors the language of relationship is reasonable and
with the revisions noted above) to give section 7384l(8) and (13) of the Act for necessary, and the suggested changes
additional guidance as to what type of establishing beryllium illnesses; OWCP have not been adopted.
Sections 30.215, 30.217 and 30.220 through a review of the written record. findings requested by the commenters.
One lay representative suggested that Either mechanism allows a claimant to Therefore, further descriptions of these
OWCP consider adding a provision for submit additional evidence or requirements for final decisions of the
coverage of consequential injuries of the arguments to the FAB reviewer in a non- FAB does not appear necessary, and the
various section 5 RECA illnesses. The adversarial forum. This is unlike a suggestions were not adopted.
interim final rule included regulatory proceeding before an administrative law
Section 30.310(b)
provisions governing consequential judge where an adverse party would
have an opportunity to object to the One congressional representative,
injuries of covered cancers and covered three labor organizations, and three
beryllium diseases, but did not also admission of evidence or provide
evidence or arguments to refute the advocacy groups voiced concerns about
specifically reference consequential the limited time period for raising
claimant’s contentions. If the claimant
injuries of either chronic silicosis or the objections to findings of fact and/or
disagrees with the final agency decision,
section 5 RECA illnesses in §§ 30.215, conclusions of law contained in a
he or she can seek review of the
30.217 or 30.220. In order to clarify that recommended decision with the FAB.
decision from a Federal court without
medical benefits are available for The 60-day period was designed to
delay. OWCP believes that utilizing
consequential injuries of all the expedite the adjudicatory process and
administrative law judges or an
occupational illnesses covered under thus it has not been deemed necessary
independent review body would
the Act, these sections (renumbered as to modify this time frame. However, to
unnecessarily complicate and delay the
§§ 30.220, 30.222 and 30.225 in address the concerns raised by these
adjudication process to the detriment of
accordance with the revisions noted claimants. None of the commenters commenters, OWCP has provided in
above) have been revised, and new provided a convincing justification to new § 30.320 a procedure for reopening
§ 30.226 has been added to address the reverse OWCP’s initial decision FAB decisions at any time in the event
type of medical evidence that will be concerning this adjudicatory structure, that new evidence is discovered or
needed to establish a causal relationship and therefore the suggestions were not circumstances have changed. In
between a consequential injury and a adopted. addition, OWCP has modified
section 5 RECA illness. § 30.310(b) by removing the requirement
Section 30.305 that the claimant raise a specific
Section 30.300
Four labor organizations, two objection to a particular finding of fact
In the absence of any language advocacy groups, one physician, and or conclusion of law as this requirement
mandating a particular adjudicatory three individuals suggested that time has not proved effective in practice.
structure in the Act, the interim final limits be placed on the claim Sections 30.312 and 30.314(b) have also
regulations established the current adjudication process. Time limits are been revised to remove similar
structure. Four congressional currently in place with respect to requirements for specific objections in
representatives, six labor organizations, recommended decisions pending either those two sections.
seven advocacy groups, and two a hearing or a review of the written One of these three advocacy groups
commenters (one of whom is a record before the FAB in § 30.316(c). also recommended that the FAB provide
physician) submitted a total of 28 These time limits provide that any hearings to all claimants automatically.
comments on the current structure for recommended decision pending either a Removing the requirement that a
adjudicating claims filed under the hearing or a review of the written record claimant raise a specific objection will
EEOICPA. One congressional at the FAB for more than a specified allow any claimant who is dissatisfied
representative, one labor organization period will be deemed to be a final with a recommended decision to receive
and four advocacy groups asked that decision of the FAB. Due to the wide a hearing upon a timely request. To
OWCP devise a more elaborate range of claim types and the date, less than 2% of claimants who
administrative review process, while the complexities involved in developing have received a recommended decision
other three congressional and establishing certain of these claims, have requested hearings before the FAB.
representatives, one of the four along with the fact that Federal agencies Therefore, it does not seem reasonable
advocacy groups, and two other other than OWCP are involved in the to require OWCP to devote the resources
advocacy groups specifically claim process, OWCP has decided necessary to provide hearings to the vast
recommended that administrative law against establishing strict time limits to majority of claimants who either request
judges be part of the adjudication govern the complete adjudicatory a review of the written record or do not
process. Finally, one of the process, and did not adopt the object to the recommended decision.
congressional representatives, all six suggestion. However, OWCP has Accordingly, since the suggestion to
labor organizations, all seven advocacy established performance goals under the provide hearings to every claimant
groups, and both commenters suggested Government Performance and Results automatically would hamper the ability
that OWCP should add an independent Act to monitor the efficiency of the of the FAB to issue final decisions on
review body to the adjudicatory process. claims adjudication process. claims, especially on claims that have
At the time that the interim final rule been accepted for the payment of
was issued, OWCP decided that it Sections 30.306 and 30.316(b)
benefits, it was not adopted.
would be most efficient and beneficial Seven labor organizations, three
to claimants to provide an expeditious advocacy groups and one physician Section 30.311(a)
administrative claims process that suggested that the regulations require One congressional representative
would allow claimants to seek review of detailed findings and grounds in all disagreed with the provision in
adverse final agency decisions on their recommended decisions denying a § 30.311(a) directing the FAB to issue a
claims in Federal court without delay. claim and in any final decision issued decision accepting the recommendation
This process provides claimants with an by the FAB. However, § 30.306 already of the district office if the claimant did
opportunity to challenge a requires that all recommended decisions not file timely and specific objections to
recommended decision before a Final contain findings of fact and conclusions findings of fact and/or conclusions of
Adjudication Branch (FAB) reviewer, of law; this existing requirement law contained in the recommended
either through an oral hearing or provides a claimant with the detailed decision, even if the claimant had
requested a hearing. Consistent with the manner. Since the claims adjudication Section 30.318
revision to § 30.310(b), this section has process is non-adversarial and the
been revised to remove the requirement informal FAB hearing process is Four congressional representatives,
for a specific objection. As a result, the working effectively, OWCP sees no six labor organizations, two advocacy
FAB will now issue a decision that reason to revise § 30.314 to create a groups and one physician suggested that
accepts the recommendation of the formal and less flexible hearing process. the regulations should permit claimants
district office if the claimant neither Two of the first three advocacy groups to challenge the dose reconstruction
requests a hearing nor submits a general questioned the requirement in methodology before the FAB. This
objection to the recommended decision § 30.314(e) that the claimant must suggestion was not adopted because
within the requisite time period. submit his or her comments regarding both the development and
the hearing transcript to the FAB implementation of the dose
Sections 30.313 and 30.314(a) reviewer within 20 days from the date reconstruction methodology have been
Five labor organizations, four that the transcript is sent to the established pursuant to regulations
advocacy groups, and one physician claimant. The commenters suggested promulgated by HHS (42 CFR part 82)
suggested that EEOICPA claimants that this requirement be changed to and are outside the scope of the
should have the right to a formal within 20 days from the date that the Department’s authority under E.O.
adjudicative hearing to challenge transcript is received by the claimant, 13179.
findings and build a record for possible citing the possibility of slow mail. A
judicial review. The administrative clear fixed date set by OWCP is Section 30.320
claims process within the Department is necessary to ensure that no bottlenecks One congressional representative, six
intended to be non-adversarial and has are created in the claims adjudication labor organizations, five advocacy
been structured as an informal, process, and thus, the above suggestion
streamlined process allowing for the groups, and two physicians disagreed
has not been adopted.
prompt adjudication of claims. The with the one-year period for claimants
regulations in §§ 30.313 and 30.314(a) Section 30.316(c) to seek modification set out in § 30.320,
allow claimants to introduce additional A congressional representative, a noting that it is likely that after the
written evidence and/or testimony and labor organization and an advocacy expiration of such period, there will be
give FAB reviewers the discretion to group expressed concerns about the changes in the science related to dose
conduct hearings in a manner that procedural mechanism by which any reconstruction and the disclosure of
ensures that a complete record is made recommended decision that is still previously unavailable exposure and
sufficient for judicial review. Since pending at the FAB for more than one employment information that might
there is nothing in the Act that requires year is deemed to be a final decision of justify reopening of the claim. In
formal adjudicative hearings, it does not the FAB. The labor organization addition, the same six labor
appear necessary to create a more believed that the FAB could take organizations, three of the five advocacy
elaborate and less expeditious advantage of the mechanism by groups, and one of the two physicians
administrative claims process, as has intentionally delaying issuing final asserted that reopening of the claim or
been requested. decisions on claims, thereby rendering the filing of a new claim might be
the opportunity to raise objections to the warranted where a claimant with a
Section 30.314 recommended decision moot. However, cancer claim is denied benefits but at a
Four labor organizations and three this mechanism actually protects later date falls within a class of
advocacy groups (one of these in two claimants against excessive delay by the employees that is added to the SEC, as
separate comments) suggested that FAB because it ensures that claimants contemplated by section 7384q(b) of the
§ 30.314(a), which provides that the receive a final agency decision on their EEOICPA. OWCP is persuaded by these
FAB reviewer retains complete claims within a time certain, and comments; therefore, § 30.320 has been
discretion to set the time and place of permits them to seek judicial review, revised to abandon the one-year
the hearing, also include a requirement within a reasonable time following the modification limitation for claimants.
that the reviewer shall attempt to issuance of a recommended decision. Revised § 30.320(b) allows claimants to
schedule the hearing at a location that Further, as noted above, OWCP has ask OWCP to reopen their claims at any
is convenient for the claimant. The established performance goals under the time if they submit new and material
current practice of OWCP is to schedule Government Performance and Results evidence of covered employment or
the FAB hearing, whenever possible, at Act to monitor the efficiency of the exposure to radiation, beryllium or
a location that is within a reasonable claims adjudication process, and those silica; or if they identify a material
distance from the claimant’s residence. performance goals also cover the change in the probability of causation
Based on the above comments, OWCP is activities of the FAB. There have been guidelines, a material change in the
persuaded that this policy should be set no demonstrated incidents of delay and dose reconstruction methods or a
forth with more specificity in the rule, therefore it does not appear necessary to material addition of a class of
and § 30.314(a) has been revised modify this mechanism. Nevertheless, employees to the SEC that occurred after
accordingly. to more accurately reflect the FAB’s the FAB issued a final decision on their
One of these four labor organizations, current performance goals for issuing claim. If the required showing of
the three advocacy groups, one final decisions and to accommodate the materiality is met, the claim will be
congressional representative, and a changes regarding specific objections reopened and returned to the district
fourth advocacy group also suggested described above, the event that will office for a new determination on the
that FAB hearing procedures be spelled commence the one-year period has been merits of the claim. OWCP will closely
out in the regulations. However, changed from the receipt of the case file coordinate with HHS and reopen cases
§ 30.314 is purposefully formulated to from the district office to the receipt of on the Director’s own authority under
permit maximum flexibility and gives the written submission described in revised § 30.320(a) when factors such as
the FAB reviewer complete discretion, § 30.310, or the expiration of the 60-day changes in HHS methodology or the
among other things, to schedule and period in that same section in the discovery of new relevant information
conduct hearings in a fair and expedient absence of a written submission. warrants doing so (in those cases, it will
not be necessary for claimants to take Section 30.404 the flexibility to make such
any action to receive a new decision). Four labor organizations, one determinations in individual situations.
advocacy group, one physician, and four As a result, no change was made to this
Section 30.400 section.
individuals disagreed with the general
One advocacy group and one travel limit of 25 miles set forth in Section 30.410
commenter suggested that OWCP § 30.404, noting that employees who Four labor organizations and two
reimburse employees for medical reside in remote geographic areas where advocacy groups did not believe that
expenses they incurred due to a covered medical services are limited, or who OWCP should have the authority to
occupational illness prior to the date require the services of a small number refer claimants to multiple ‘‘second
they filed a claim for benefits with of recognized medical specialists, opinion’’ medical examinations by
OWCP, while a lay representative should not be denied reimbursement for physicians of its choosing, even at the
generally urged that a broad scope of travel of greater distances to obtain government’s expense. However, this
medical benefits should be made appropriate medical treatment. While authority is necessary to enable OWCP
available to covered employees. The OWCP’s current policy is to take into to obtain additional medical evidence in
availability of medical benefits is consideration such demonstrated needs situations where a claimant has
governed by section 7384t of the Act, of individual claimants, the above submitted some medical evidence in
which explicitly states that eligibility to comments indicate that there is a need support of a claim, but the evidence is
receive such benefits will commence no to clarify the current rule. As modified, of insufficient probative value to allow
earlier than the date on which the claim § 30.404(a) establishes a roundtrip the claimant to meet his or her burden
is filed. Therefore, OWCP cannot alter distance of up to 200 miles as what of proof. If the claimant could not
this statutory limitation through OWCP will generally consider a submit the additional evidence
regulation. In addition, § 30.400 already reasonable distance to travel. Section necessary to meet this burden, and
30.404(b) further provides that if travel OWCP could not obtain it through a
notes the broad scope of medical
of more than 200 miles is contemplated, second opinion examination, OWCP
benefits that are payable under the Act,
or if air travel or overnight would have to deny the claim. Since it
and provides that a covered employee is
accommodations will be needed, the is OWCP’s policy to assist claimants in
entitled to receive all medical treatment
employee must request prior approval the development of their claims, the
prescribed or recommended by a
from OWCP demonstrating the authority to refer claimants for second
qualified physician that OWCP circumstances and necessity for such
considers necessary to treat his or her opinion medical examinations is one of
travel. the tools OWCP needs to efficiently
covered illness. In light of this, it does Three labor organizations stated that
not appear necessary to modify § 30.400 carry out this policy.
§ 30.404 should include information on Three of these same four labor
as requested. where employees can obtain the organizations and two different
Three other commenters suggested standard form for requesting medical advocacy groups also suggested that
that OWCP issue medical benefits travel refunds. Section 30.404(c) claimants should be allowed to have
identification cards (similar to health indicates that the form can be obtained someone other than a physician of their
insurance identification cards) to from OWCP. choosing present during a second
covered employees, to make it easier for One advocacy group and one opinion examination. The restriction on
such employees to obtain medical individual commenter indicated that who may accompany claimants during
benefits. Subsequent to the OWCP should pay the travel expenses of these examinations was intended to
promulgation of the interim final a person who accompanies an employee minimize the possibility of disruptions,
regulations, OWCP decided to utilize on a trip to obtain medical treatment. but given the nature of the claimant
such cards. However, because medical Under § 30.404, OWCP has the population and the likelihood of this
benefits are only available for discretion to determine what travel occurring, OWCP is persuaded that the
conditions covered by the Act, rather expenses are ‘‘reasonable and restriction is not necessary for all
than for almost all conditions as is the necessary,’’ and prefers to maintain the second opinion referrals. However,
case with health insurance, a covered flexibility to make such determinations OWCP will retain the restriction for use
employee’s medical benefits on a case-by-case basis. Therefore, no if the person accompanying the
identification card only lists the specific change was made to this section. claimant disrupts the examination and
condition(s) for which medical benefits One individual asserted that OWCP OWCP has to refer the claimant to a
are available for that covered employee. should compensate employees for any different physician for the requested
lost wages resulting from absences from second opinion examination.
Section 30.403 work to undergo diagnostic testing, and
other persons for any lost wages Section 30.411
Four labor organizations, four resulting from absences from work in Three congressional representatives,
advocacy groups and one commenter order to accompany employees on five labor organizations, four advocacy
suggested that family members be medical visits to obtain diagnostic groups and three commenters (two of
compensated for providing personal testing. As set forth in § 30.412 of the whom are physicians) suggested that
care services. Section 30.403 does not regulations, OWCP provides OWCP utilize a joint naming process
preclude family members from being reimbursement for actual wages lost by whereby the claimant and OWCP would
paid for providing personal care employees for the time needed to agree on a physician to perform a referee
services as long as they have received submit to a second opinion or referee examination needed to resolve a conflict
the necessary training. This will help examination required by OWCP. As for in the medical evidence. OWCP does
ensure that covered employees are the lost wages of persons accompanying not see the utility of this suggestion,
provided proper care for any medical employees, OWCP has the discretion especially since the EEOICPA claims
conditions that are covered by the Act. under § 30.404 to determine if these adjudication process is non-adversarial
Therefore, the regulation has not been constitute ‘‘reasonable and necessary’’ and OWCP does not oppose a claim for
changed. travel expenses and prefers to maintain benefits. Furthermore, this more
complex manner of selecting physicians and 30.502: Three from congressional Section 30.505(d) and (f)
to perform referee examinations would representatives; eight from labor One lay representative inquired
add to the length of time necessary to organizations; 10 from advocacy groups; whether OWCP would pay survivor
adjudicate the claim without providing four from physicians; four from benefits in stages, or if it would wait
any tangible benefit. Accordingly, the attorneys; one from a lay representative; until it was ready to pay all survivors
suggestion was not adopted, and OWCP and 112 from other individuals. of a single deceased covered employee
will continue to select all physicians However, these comments were at the same time. Section 30.505(d)
performing referee examinations from a rendered moot following the enactment (renumbered as § 30.505(c) in
pool of specialists (consisting of both of section 3151(a)(4) of Public Law accordance with the revision noted
Board-certified physicians and other 107–107, which amended the survivor above) provides that ‘‘No payment shall
qualified specialists) who have provisions in sections 7384s(e) and be made until OWCP has made a
expressed a willingness to perform these 7384u(e) of the EEOICPA. To conform determination concerning the survivors
types of examinations. OWCP selects the final regulations to the amended related to a respective claim for
physicians from the pool on a strict provisions, §§ 30.500 through 30.502 benefits.’’ This restriction is necessary
rotational basis according to medical have been completely rewritten and the to conserve administrative resources
specialty and geographic location, and prior definition for ‘‘widow or and has been retained; however, there is
periodically reviews the pool for quality
widower’’ from § 30.5(gg) of the interim no requirement that OWCP wait to
control purposes and to allow other
final regulations has been modified and actually pay all the survivors of a
qualified physicians an opportunity to
consolidated with the other statutory deceased covered employee at the same
join the pool.
Three of these same five labor definitions in § 30.500. As a result of the time. Accordingly, a survivor who signs
organizations and two of the same four latter change, former § 30.5(hh) has been and returns the acceptance form quickly
advocacy groups also suggested that renumbered as § 30.5(gg) in the final may be paid his or her share of the
claimants should be allowed to have regulations. compensation payment before another
someone of their own choosing present survivor who waits the full 60 days
Section 30.505(c) before signing and returning the form. In
during a referee examination. As was
the case with second opinion Two advocacy groups, one attorney cases with multiple claimants, OWCP
examinations, the restriction against and one commenter disagreed with the will determine the share of the lump-
anyone accompanying a claimant during provision in § 30.505(c) (renumbered as sum amount, if any, to which each
a referee examination was intended to § 30.505(b) in accordance with the survivor is entitled.
minimize the possibility of disruptions, The same lay representative also
revision noted above) for an offset of
but given the nature of the claimant questioned the prohibition in § 30.505(f)
EEOICPA benefits against any amounts
population and the likelihood of this (renumbered as § 30.506(c) in
received for an occupational illness in a
occurring, OWCP is persuaded that the accordance with the revision noted
final judgment or settlement in
restriction is not necessary for all referee above) against distributing rejected
litigation. This same commenter, and
examination referrals. However, shares of compensation payments to
five other commenters, also questioned other eligible survivors. Sections
consistent with its decision regarding the justification for any offset of
the limitation in § 30.410, OWCP will 7384s(e)(1)(B) and 7384u(e)(1)(B) both
EEOICPA benefits. Section 7385 of the require the payment of equal shares of
retain the restriction for use if the Act requires an offset of EEOICPA
person accompanying the claimant a single compensation payment to ‘‘all
benefits if certain other payments have children of the covered employee who
disrupts the examination and OWCP has been received, and provides the
to refer the claimant to a different are living at the time of payment,’’ not
necessary statutory justification for the all children of the covered employee
physician for the requested referee offset process. However, section 7385
examination. who are living at the time of payment
does not describe how this process and who do not reject their shares.
Section 30.412 should occur, and the above comments Therefore, the prohibition against
One advocacy group suggested that indicate the need for a more detailed distributing rejected shares of
OWCP consider paying for a family description of how, and to what extent, compensation is established by the
member to accompany all employees on OWCP will offset EEOICPA benefits. terms of the Act itself, and no change
any directed medical examinations that Therefore, § 30.505(b) now contains a was made to this section.
would necessitate either an overnight more thorough definition of the type of
payment that will necessitate an offset, Section 30.506
stay away from home or air
transportation. OWCP does not consider and how OWCP will determine the Two physicians, one advocacy group,
a blanket rule of this sort to be value of any such payment. It also one labor organization and one
justifiable, since it is clear that while provides for deductions from the commenter had questions regarding the
many employees may be so infirm as to amount to be offset (for reasonable provision of medical benefits to covered
require somebody to accompany them to attorney’s fees and itemized costs of employees whose sole occupational
such an examination, it is equally clear suit) in order to arrive at the amount of illness is beryllium sensitivity. Section
that others will not. Therefore, OWCP the required offset of EEOICPA benefits. 30.506 (renumbered as § 30.507 in
prefers to maintain the discretion in this The regulation also provides that an accordance with the revision noted
section to determine whether such offset will result in the reduction of an above) stated that these employees were
expenses are ‘‘reasonable and unpaid lump-sum payment first. not entitled to any medical benefits
necessary,’’ and the suggestion has not Finally, this paragraph indicates that other than beryllium sensitivity
been adopted. OWCP will not offset any EEOICPA monitoring. However, because section
benefits if a claimant has already had 7384s(a)(2) of the Act only replaces the
Sections 30.500, 30.501 and 30.502 his or her benefits under section 5 of the lump-sum payment provided for under
A total of 143 comments addressed RECA reduced to reflect a payment that section 7384s(a)(1) with beryllium
the description of how survivors are would otherwise require an offset of sensitivity monitoring and is silent with
defined and paid in §§ 30.500, 30.501 EEOICPA benefits. respect to entitlement to medical
benefits, covered employees whose sole 107, which amended the election of The Rulemaking Process
occupational illness is beryllium remedy provisions in section 7385d of OWCP received comments from two
sensitivity should be provided medical the EEOICPA. To conform the final labor organizations, four advocacy
benefits for that condition. Therefore, regulations to these amendments, prior groups and one individual commenter
§ 30.507 has been revised to be §§ 30.615 and 30.616 have been on the rulemaking process. The various
consistent with this interpretation and rewritten as §§ 30.615 through 30.619, comments requested that public
now states that covered employees and prior § 30.617 has been renumbered hearings be held on the regulations and
whose sole occupational illness is as § 30.620 to accommodate these that a formal advisory committee be
beryllium sensitivity are entitled to the changes. appointed, and suggested that the
same medical benefits provided to other interim final regulations be effective for
Section 30.701(c)
covered employees. The estimated
One physician and one advocacy a short time period, to be followed by
marginal cost of providing these benefits
group noted that there is no diagnostic a notice and comment period prior to
(which would usually be for low-cost
code for beryllium sensitivity in the publication of the final rule. Because of
prescription steroid medications) will
‘‘International Classification of Disease, the time constraints set forth in E.O.
be negligible from a budgetary
9th Edition, Clinical Modification’’ 13179, which required publication of
standpoint.
(ICD–9–CM), and that medical providers regulations by May 31, 2001 and the
Section 30.601 are required to provide such a code establishment of a functioning program
One lay representative commented on whenever they submit bills to OWCP for by July 31, 2001, OWCP chose to
this section by asking who would payment. To address this, OWCP has publish an interim final rule without
represent mentally incompetent designated the V81.4 classification first publishing a notice of proposed
claimants, and if she could represent ‘‘Other and unspecified respiratory rulemaking. However, because OWCP
claimants in the EEOICPA claim conditions’’ as the appropriate ICD–9– both understands and appreciates the
process. Serving as a legal CM classification for beryllium importance of public input in the
representative of a mentally sensitivity. Use of this code will both rulemaking process, it provided an
incompetent person is a matter of state allow OWCP to track accepted extensive comment period of 120 days
law and is thus outside the scope of beryllium sensitivity cases, and to pay to receive input from the public on the
these regulations. Section 30.601, which medical providers for pre-approved regulations. Also, OWCP staff members
addresses the question of who may diagnostic tests to monitor the employee participated in numerous public
serve as a representative in the claims for signs of chronic beryllium disease. meetings across the United States to
process, does not bar lay representatives publicize and explain the Act and the
Sections 30.705 through 30.710 regulations. All comments received
from providing representation to
EEOICPA claimants. On a related issue, One advocacy group questioned during the comment period have been
three advocacy groups and three OWCP’s decision to base the medical fee thoroughly reviewed and taken into
individuals submitted comments on the schedule for professional medical consideration for purposes of the
statutory attorney fees cap for services and inpatient medical services rulemaking process and publication of
representation of EEOICPA claimants. on cost data supplied by the Centers for this final rule.
However, following publication of the Medicare and Medicaid Services (CMS) Unlike the requirements in 42 U.S.C.
interim final rule, Congress amended in light of the increased cost for those 7384n(c)(2) and (d)(2) that the
section 7385g of the Act in section services in remote geographical areas. regulations promulgated by HHS
3151(a)(6) of Public Law 107–107. However, § 30.707(b) provides that the pursuant to section 7384n(b) and (d)(1)
Therefore, new § 30.603 has been added ‘‘relative value units’’ assigned by CMS be reviewed by the Advisory Board on
to reflect the current statutory limits on to professional medical services will be Radiation and Worker Health that was
attorney fees in amended section 7385g. multiplied by the Geographic Practice established as directed by section
Cost Indices for Metropolitan Statistical 7384o, there is no requirement in
Section 30.609 Areas as devised for CMS, and this section 7384d that the regulations
One advocacy group disagreed with adjustment should be sufficient to promulgated by DOL for the
the requirement that claimants report accommodate increased costs for these administration of the program be
(for possible offset of EEOICPA benefits) services in remote areas. Further, reviewed by any advisory board. As
awards they receive due to medical § 30.710 indicates that the fee schedule noted above, a lengthy period for public
malpractice in treating a covered for inpatient medical services will be comments was provided in connection
occupational disease. However, since based on hospital-specific cost factors with the Interim Final Regulations, and
these awards are clearly payments that are part of the CMS Prospective regular and frequent communications
‘‘made pursuant to a final award or Payment System OWCP will use to pay occur with HHS and DOE. DOL also
settlement on a claim’’ that has its for hospital discharges. In either attends and participates in the public
genesis in an occupational illness instance, the fee schedules may be meetings of the Advisory Board on
covered by the Act, no change was made adjusted if OWCP deems it necessary or Radiation and Worker Health. Under
to this requirement so OWCP will be appropriate. Therefore, the suggestion to these circumstances, DOL does not see
able to fulfill its offset responsibilities use a different set of cost data was not the utility in adding an advisory
under section 7385 of the EEOICPA. adopted. committee to this rulemaking process.
Sections 30.615 and 30.616 II. Miscellaneous Comments Coordination of Benefits
Two advocacy groups, two attorneys Several of the 216 timely comments Three individuals submitted
and three other commenters suggested the Department received raised issues comments suggesting that there be no
possible changes to §§ 30.615 and that either were not addressed in the coordination of benefits for claimants
30.616 (rewritten as §§ 30.615 through interim final regulations or involved with beryllium illnesses, and three other
30.619 as noted above). These extraneous matters. The Department’s individuals submitted general questions
suggestions were rendered moot by analysis of these miscellaneous regarding coordination of benefits with
section 3151(a)(5) of Public Law 107– comments follows: State workers’ compensation program
benefits. These comments involve the contractor employees to toxic 30.207, 30.212, 30.214, 30.215, 30.221,
operation of section 7385h of the Act, substances at DOE facilities. 30.222, 30.226, 30.415, 30.416, 30.417,
which deals with the interplay between 30.505, 30.620 and 30.702(b) of this rule
III. Publication in Final
the Act, State law and private insurance were also submitted to and approved by
contracts; however, OWCP did not The Department of Labor has OMB under the PRA and were assigned
address this issue in the interim final determined, pursuant to 5 U.S.C. OMB Control No. 1215–0197 (expires
rule, nor does it do so in this final rule. 553(b)(B), that good cause exists for July 31, 2004). No public comments
waiving public comment on this final were received regarding this second
Designating Facilities rule with respect to the following group of information collection
One attorney (in two separate changes: (1) Those needed to conform requirements, and they were not
comments), the City Council of the City the regulations to the sections of the affected by any of the substantive
of Niagara Falls, and eight individuals EEOICPA that were amended by Public changes that have been made in this
requested that the time frames indicated Laws 107–20 and 107–107; (2) those final rule. However, this final rule
by DOE for certain facilities be needed to conform the regulations to the revises the currently approved
expanded and/or that specific new probability of causation guidelines collection in OMB Control No. 1215–
facilities be included on the list of issued by HHS; (3) corrections of 0197 by adding three new information
covered facilities maintained by DOE. typographical errors; and (4) minor collection requirements, and this
These recommendations have been wording changes and clarifications that revision of a currently approved
forwarded to DOE, which is actively do not affect the substance of the collection will be submitted to OMB for
soliciting information from the public as regulations. For these changes, review under the PRA upon publication
it continues its research efforts publication of a proposed rule and of the rule. No person is required to
regarding facility time frames and solicitation of comments would be respond to a collection of information
additions or deletions to the covered neither necessary nor fruitful. request unless the collection of
facilities list. IV. Statutory Authority information displays a valid OMB
Benefit Levels control number. The new information
Section 7384d of the EEOICPA
collection requirements are in §§ 30.112
One lay representative and eight other provides the general statutory authority,
and 30.213, and they relate to
commenters made suggestions about the which E.O. 13179 allocates to the
information required to be submitted by
level of benefits to be provided to Secretary, to prescribe rules and
claimants as part of the EEOICPA claims
successful claimants. However, since regulations necessary for the
adjudication process. One of the new
the benefit levels are set by the terms of administration and enforcement of the
collections will be implemented
the Act, the regulations cannot adopt a Act. Sections 7384t and 7384u of the
without any specific form (see section A
different level of benefits unless the Act EEOICPA provide specific authority
below). The Department is proposing to
itself is amended. Accordingly, the regarding medical treatment and care,
create two new forms to implement the
suggested changes were not adopted. including determining the
other new collections (see sections B
appropriateness of charges. The Federal
Coverage and C below).
Claims Collection Act of 1966, as
One congressional representative, two amended (31 U.S.C. 3701 et seq.), A. Supplemental Employment Evidence
physicians, the Department of Defense, authorizes imposition of interest charges (§ 30.112)
five advocacy groups, and 31 and collection of debts by withholding
commenters made suggestions about Summary: Employees and/or
funds due the debtor.
which workers should be covered by the survivors claiming benefits under the
Act. However, the Act mandates the V. Paperwork Reduction Act EEOICPA must establish, among other
categories of workers covered and the This final rule contains information things, an employment history that
regulations cannot be changed to either collection requirements subject to the includes at least one period of covered
expand or restrict the categories of Paperwork Reduction Act of 1995 employment. To do so, claimants
covered workers unless the Act is (PRA). The information collection submit either a Form EE–3 listing
amended. Therefore, the suggested requirements set out in §§ 30.401, periods of alleged covered employment,
changes have not been made. 30.404, 30.420, 30.421, 30.700, 30.701 or a Form EE–4 containing basic
and 30.702(a) of this rule were employment information in situations
Covered Illnesses submitted to and approved by OMB where specific employment information
Two advocacy groups, a physician, an under the PRA, and the currently is not available. If the employment
attorney and 19 individuals suggested approved collections in OMB Control history provided on Form EE–3 or EE–
that the occupational illnesses covered Nos. 1215–0054 (expires June 30, 2004), 4 cannot be verified, OWCP may ask the
by the Department’s program be 1215–0055 (expires November 30, claimant to provide supplemental
expanded to include additional illnesses 2003), 1215–0137 (expires February 28, employment evidence in support of the
that may have resulted from the 2005), 1215–0176 (expires December 31, alleged history. After it reviews the
exposure of employees to harmful 2003), and 1215–0194 (expires January evidence of record on this point, OWCP
substances while in the performance of 31, 2004) were revised to include the will determine whether a period of
duty at covered facilities under the Act. added EEOICPA respondents. No public covered employment has been
However, OWCP has no authority to comments were received regarding this established by a preponderance of the
implement any such changes in the group of information collection evidence.
absence of legislative changes to the requirements, and they were not Need: Documentation of a history of
Act. Furthermore, Part D of the Act affected by any of the substantive covered employment is one of the
already provides the opportunity for changes that have been made in this elements that must be met to establish
claimants to obtain assistance from DOE final rule. entitlement to benefits under the
in filing for benefits under appropriate The information collection EEOICPA.
State workers compensation programs requirements in §§ 30.100, 30.101, Respondents and proposed frequency
in connection with the exposure of DOE 30.102, 30.111, 30.113, 30.114, 30.206, of response: It is estimated that 3,870
respondents annually will submit this the claimant that in order to determine (4) Minimize the burden of the
collection of information once. the probability of causation of the collections of information on those who
Estimated total annual burden: The claimed cancer, OWCP needs to know are to respond, including through the
time required to review instructions, the employee’s race/ethnicity, and use of appropriate automated,
search existing data sources, gather the requests that the claimant submit the electronic, mechanical, or other
data needed, and complete and review necessary information. All respondents technological collection techniques or
each collection of this information is will be required to certify that the other forms of information technology,
estimated to take an average of 30 information provided on Form EE/EN– e.g., permitting electronic submission of
minutes per response for a total annual 9 is accurate and true. responses.
burden of 1,935 hours. Need: OWCP cannot determine the
probability of causation for skin cancer Send comments regarding this burden
B. Lung Cancer Information: Form EE/ without this information. estimate, or any other aspect of this
EN–8 (§ 30.213) Respondents and proposed frequency revision to the currently approved
Summary: Guidelines issued by HHS of response: It is estimated that 1,057 collection in OMB Control No. 1215–
require OWCP to ask claimants for respondents annually will file one Form 0197, including suggestions for reducing
information regarding the employee’s EE/EN–9. this burden, to the Office of Information
smoking history before OWCP can Estimated total annual burden: The and Regulatory Affairs, Office of
determine the probability of causation time required to review instructions, Management and Budget, Attention:
for lung cancer (the disease classified as search existing data sources, gather the Desk Officer for Employment Standards
‘‘lung cancer’’ includes primary cancer data needed, and complete and review Administration, Washington, DC 20503
of both the trachea and bronchus). This each Form EE/EN–9 is estimated to take no later than January 27, 2003.
information is not requested if the an average of 5 minutes per response for
a total annual burden of 88 hours. VI. Executive Order 12866
employee is a member of the Special
Exposure Cohort. If the claim is for lung D. Total Annual Burden and Request for This rule is being treated as a
cancer (or a secondary cancer for which Comments ‘‘significant regulatory action’’ within
lung cancer is a likely primary cancer), the meaning of E.O. 12866 because it is
Total public burden: The new
OWCP will send the claimant a Form economically significant, as defined in
information collection requirements
EE/EN–8. Form EE/EN–8 informs the section 3(f)(1) of that Order. The
being added to OMB Control No. 1215–
claimant that to determine the payment of the benefits provided for by
0197 have a total public burden hour
probability of causation of the claimed estimate of 2,275. Using the current the EEOICPA, through the program
cancer, OWCP needs to know the National average hourly earnings of administered pursuant to this regulatory
employee’s smoking history, and $14.00, the total annual public cost for action, will have an annual effect on the
requests that the claimant submit the these new information collection economy of $100 million or more.
necessary information. All respondents requirements is estimated to be However, the final rule will not
will be required to certify that the $31,850.00. There are no recordkeeping adversely affect in a material way the
information provided on Form EE/EN– or collection costs associated with the economy, a sector of the economy,
8 is accurate and true. new information collection productivity, jobs, the environment,
Need: OWCP cannot determine the requirements described above. The only public health or safety, or State, local,
probability of causation for lung cancer operation and maintenance cost will be or tribal governments or communities,
without this information. for postage and mailing. An estimated as required by section 3(f)(1) of E.O.
Respondents and proposed frequency annual total of 7,948 mailed responses 12866. The proposed rule is also a
of response: It is estimated that 3,021 to these new information collection ‘‘significant regulatory action’’ because
respondents annually will file one Form requirements at $0.37 (postage) + $0.03 it meets the criteria of section 3(f)(4) of
EE/EN–8. (envelope) per response would be that Order in that it raises novel or legal
Estimated total annual burden: The $3,179.20. policy issues arising out of the legal
time required to review instructions, Request for comments: The public is mandate established by the EEOICPA.
search existing data sources, gather the invited to provide comments on the The Department has also concluded that
data needed, and complete and review above-noted revision to the currently this final rule constitutes a ‘‘major rule,’’
each Form EE/EN–8 is estimated to take approved collection in OMB Control No. as that term is defined in the Small
an average of 5 minutes per response for 1215–0197 so that the Department may: Business Regulatory Enforcement
a total annual burden of 252 hours. (1) Evaluate whether the proposed Fairness Act of 1996 (5 U.S.C. 804(2)),
C. Skin Cancer Information: Form EE/ collections of information are necessary because of the effect on the economy
EN–9 (§ 30.213) for the proper performance of the noted above.
functions of the agency, including
Summary: Guidelines issued by HHS whether the information will have Based upon the factors and
require OWCP to ask claimants for practical utility; assumptions set forth below, the
information regarding the employee’s (2) Evaluate the accuracy of the Department’s estimate of the aggregate
race/ethnicity before OWCP can agency’s estimates of the burdens of the cost of benefits and administrative
determine the probability of causation collections of information, including the expenses of this final regulatory action
for skin cancer. If the claim involves validity of the methodology and implementing the EEOICPA is, in
skin cancer (or a secondary cancer for assumptions used; millions of dollars (estimates for
which skin cancer is a likely primary (3) Enhance the quality, utility and FY2004, FY2005 and FY2006 are
cancer), OWCP will send the claimant a clarity of the information to be preliminary and will be reviewed
Form EE/EN–9. Form EE/EN–9 informs collected; and during the budget formulation process):
FY2002 FY2003 FY2004 FY2005 FY2006
Admin ........................................................................................................................... $136 $100 $55 $50 $33

Benefits ........................................................................................................................ 769 758 578 353 250
The Department’s estimate of the DOL’s experience in administering other that may result in increased annual
benefits to be paid pursuant to the workers’ compensation programs, using expenditures in excess of $100 million
EEOICPA and of its administrative costs calculations of the number of incoming by State, local or tribal governments in
of providing those benefits is based on claims and forecasting the necessary the aggregate, or by the private sector.
data collected from other Federal full-time equivalents and other
IX. Regulatory Flexibility Act
agencies, assumptions regarding the resources necessary to efficiently
incidence of cancer, beryllium disease administer the program. The Department believes that this
and silicosis in the covered population, No more extensive economic impact final rule will have ‘‘no significant
life expectancy tables, and its analysis is necessary because this economic impact upon a substantial
experience in estimating administrative regulatory action only addresses the number of small entities’’ within the
and medical costs of workers’ transfer of funds from the Federal meaning of the Regulatory Flexibility
compensation programs. Specifically, government to individuals who qualify Act (5 U.S.C. 601 et seq.). The
benefit estimates for cancer claims are under the EEOICPA and to providers of provisions of this rule applying cost
based on figures provided by DOE medical services in that program. As control measures to payments for
concerning the number of DOE/ noted above, this regulatory action has medical expenses are the only ones that
contractor employees, known cancer no affect on the functioning of the may have a monetary effect on small
incidence and survival rates in the economy and private markets, on the businesses. That effect will not be
general population obtained from the health and safety of the general significant for a substantial number of
National Cancer Institute. Based on the population, or on the natural those businesses, however, for no single
number of claims likely to be accepted, environment. In addition, because this business will bill a significant amount
the cost of lump-sum payments to these regulation implements a statutory to OWCP for EEOICPA-related services,
claimants is easily determined. These mandate, there are no feasible and the effect on those bills which are
benefit estimates further reflect alternatives to this regulatory action. submitted, while a worthwhile savings
contemplated medical costs of $1,500 Finally, to the extent that policy choices for the Government in the aggregate,
per year for 90% of the covered have been made in interpreting statutory will not be significant for individual
claimants, while the remaining 10% terms, those choices have no significant businesses affected.
will incur $125,000 in medical costs for impact on the cost of this regulatory The cost containment provisions are:
the year because they are undergoing action because they do not involve (1) A set schedule of maximum
intensive in-hospital medical treatment. either the number of eligible recipients allowable fees for professional medical
Benefits estimates for beryllium or the level of benefits to which they are services; (2) a set schedule for payment
exposure are based on known incidence entitled. of pharmacy bills; and (3) a prospective
OMB has reviewed this final rule for
rates, known numbers of claimants with payment system for hospital inpatient
consistency with the President’s
beryllium disease, exposed population services. The first two of these
priorities and the principles set forth in
figures (all of which were obtained from provisions essentially adopt payment
E.O. 12866.
DOE), and medical costs of $3,000 per systems that are commonplace in the
year for beryllium sensitivity, $4,000 VII. Small Business Regulatory industry. Their adoption by OWCP for
per year for mild chronic beryllium Enforcement Fairness Act use in connection with its
disease, and $9,000 per year for more As required by Congress under the administration of the EEOICPA program
severe chronic beryllium disease. Small Business Regulatory Enforcement will therefore result in efficiencies for
Benefit estimates for silicosis are based Fairness Act of 1996 (5 U.S.C. 801 et both the Government and providers.
on figures obtained from DOE seq.), the Department will report to The Government will benefit because
concerning the number of exposed Congress promulgation of this final rule OWCP did not have to develop new cost
employees and the expected incidence prior to its effective date. The report containment measures, but rather
of silicosis, and medical costs of $4,000 will state that the Department has adopted existing and well-recognized
per year. Benefit estimates for the claims concluded that this final rule is a ‘‘major measures that were already in place.
based on the receipt of an award rule’’ because it will likely result in an The providers benefit because
pursuant to section 5 of the RECA are annual effect on the economy of $100 submitting a bill and receiving a
based on figures for the number of million or more. payment will be almost the same as
claims provided by DOJ, and $4,000 per submitting it to Medicare, a program
year in medical costs. VIII. Unfunded Mandates Reform Act with which providers are already
Because the statute provides benefits of 1995 familiar and have existing systems in
for covered workers and their survivors Title II of the Unfunded Mandates place for billing—they will not have to
who were exposed to radiation, Reform Act of 1995 (2 U.S.C. 1531 et incur unnecessary administrative costs
beryllium and silica during a period of seq.) directs agencies to assess the to learn a new process because the
almost 60 years, an assumption was effects of Federal regulatory actions on EEOICPA bill process will not be readily
made that DOL would receive State, local, and tribal governments, and distinguishable from the Medicare
thousands of claims in the initial few the private sector, ‘‘other than to the process. Similarly, pharmacies are used
years after the effective date of the extent that such regulations incorporate to billing through clearing houses and
statute, and that the number of claims requirements specifically set forth in having their charges subject to limits by
would decrease substantially after the law.’’ For purposes of the Unfunded private insurers. By adopting the
first few years. Administrative cost Mandates Reform Act, this final rule uniform billing statement and a familiar
estimates were developed based upon does not include any Federal mandate cost control methodology, OWCP has
kept close to the billing environment X. Executive Order 12988 (Civil Justice report will note that this rule constitutes
with which pharmacies are already Reform) a ‘‘major rule’’ as defined by 5 U.S.C.
familiar. The methods chosen, therefore, This final rule has been drafted and 804(2).
represent systems that are familiar to the reviewed in accordance with E.O. 12988 XV. Catalog of Federal Domestic
providers. The third of these three and will not unduly burden the Federal Assistance Number
provisions will not have an effect on a court system. While the EEOICPA does
substantial number of ‘‘small entities’’ not provide any specific procedures This program is not listed in the
under Small Business Administration claimants must follow in order to seek Catalog of Federal Domestic Assistance.
standards, since most hospitals review of decisions on their claims, List of Subjects
providing services for EEOICPA-covered substantial numbers of claimants will
conditions will have annual receipts likely seek review of adverse decisions 20 CFR Part 1
that exceed the set maximum. in the United States district courts Organization and functions
The implementation of these cost pursuant to the Administrative (Government agencies).
containment methods will have no Procedure Act. This rule should
minimize the burden placed upon the 20 CFR Part 30
significant effect on any single medical
professional or pharmacy since they are courts by litigation seeking to challenge Administrative practice and
already used by Medicare, CHAMPUS, decisions under EEOICPA by providing procedure, Cancer, Claims, Kidney
and the Departments of Labor and claimants an opportunity to seek Diseases, Leukemia, Lung Diseases,
Veterans Affairs, among Government administrative review of adverse Miners, Radioactive Materials, Tort
entities, and by private insurance decisions and by providing a clear legal claims, Underground mining, Uranium,
carriers. In actual terms, the amount by standard for affected conduct. It has Workers’ Compensation.
which these provider bills might be been reviewed carefully to eliminate
drafting errors and ambiguities. Text of the Rule
reduced will not have a significant
impact on any one small entity since For the reasons set forth in the
XI. Executive Order 13045 (Protection
preamble, 20 CFR Chapter 1 is amended
these charges are currently being of Children From Environmental,
as follows:
processed by other payers applying Health Risks and Safety Risks)
similar cost containment provisions. In accordance with E.O. 13045, the Subchapter A—Organization and
The costs to providers whose charges Procedures
Department has evaluated the
may be reduced also will be relatively environmental health and safety effects 1. Part 1 is revised to read as follows:
small because EEOICPA bills simply of this rule on children. The Department
will not represent a large share of any has determined that the final rule will PART 1—PERFORMANCE OF
single provider’s total business. Since have no effect on children. FUNCTIONS UNDER THIS CHAPTER
the small universe of potential
XII. Executive Order 13132 Sec.
claimants is spread across the United
(Federalism) 1.1 Under what authority was the Office of
States and this bill processing system Workers’ Compensation Programs
will cover only those employees who The Department has reviewed this established?
have sustained a covered illness and final rule in accordance with E.O. 13132 1.2 What functions are assigned to OWCP?
require medical treatment on or after and has determined that it does not 1.3 What rules are contained in this
July 31, 2001 (out of the projected total have any ‘‘federalism implications.’’ chapter?
of 19,479 claims OWCP estimates it will The final rule does not ‘‘have 1.4 Where are other rules concerning OWCP
accept over the first five years of the substantial direct effects on the States, functions found?
on the relationship between the national 1.5 When was the former Bureau of
program, only approximately 5,727 of
government and the States, or on the Employees’ Compensation abolished?
these will involve payment for medical 1.6 How were many of OWCP’s current
treatment), the number of bills distribution of power and functions administered in the past?
submitted by any one small entity responsibilities among the various
levels of government.’’ Authority: 5 U.S.C. 301, 8145 and 8149
which may be subject to these (Reorganization Plan No. 6 of 1950, 15 FR
provisions is likely to be very small. XIII. Executive Order 13211 (Actions 3174, 3 CFR, 1949–1953 Comp., p. 1004, 64
Therefore, the ‘‘cost’’ of this rule to any Concerning Regulations that Stat. 1263); 42 U.S.C. 7384d; Executive Order
one pharmacy or medical professional Significantly Affect Energy Supply, 13179, 65 FR 77487, 3 CFR, 2000 Comp., p.
will be negligible. On the other hand, Distribution, or Use) 321; Secretary of Labor’s Order No. 13–71, 36
OWCP will see substantial aggregate FR 8155; Employment Standards Order No.
cost savings that will benefit both In accordance with E.O. 13211, the 2–74, 39 FR 34722.
OWCP (by strengthening the integrity of Department has evaluated the effects of
this final rule on energy supply, § 1.1 Under what authority was the Office
the program) and the taxpayers to whom of Workers’ Compensation Programs
distribution or use, and has determined
the ultimate costs of the program are established?
that this rule is not likely to have a
eventually charged through The Assistant Secretary of Labor for
significant adverse effect on them.
appropriations. Employment Standards, by authority
The Assistant Secretary for XIV. Submission to Congress and the vested in him by the Secretary of Labor
Employment Standards has certified to General Accounting Office in Secretary’s Order No. 13–71, 36 FR
the Chief Counsel for Advocacy of the In accordance with the Small 8755, established in the Employment
Small Business Administration that this Business Regulatory Enforcement Standards Administration an Office of
rule will not have a significant impact Fairness Act of 1996, the Department Workers’ Compensation Programs
on a substantial number of small will submit to each House of the (OWCP) by Employment Standards
entities. The factual basis for this Congress and to the Comptroller General Order No. 2–74, 39 FR 34722. The
certification has been provided above. a report regarding the issuance of this Assistant Secretary subsequently
Accordingly, no regulatory impact final rule prior to the effective date set designated as the head thereof a Director
analysis is required. forth at the outset of this notice. The who, under the general supervision of
the Assistant Secretary, administers the Board are set forth in chapter IV of this 2. Subchapter C consisting of Part 30
programs assigned to OWCP by the title. is revised to read as follows:
Assistant Secretary. (d) The rules and regulations of the Subchapter C—Energy Employees
Benefits Review Board are set forth in Occupational Illness Compensation
§ 1.2 What functions are assigned to chapter VII of this title.
OWCP? Program Act of 2000
The Assistant Secretary of Labor for § 1.5 When was the former Bureau of
PART 30–CLAIMS FOR
Employment Standards has delegated Employees’ Compensation abolished?
COMPENSATION UNDER THE
authority and assigned responsibility to By Secretary of Labor’s Order issued ENERGY EMPLOYEES
the Director of OWCP for the September 23, 1974, 39 FR 34723, OCCUPATIONAL ILLNESS
Department of Labor’s programs under issued concurrently with Employment COMPENSATION PROGRAM ACT OF
the following statutes: Standards Order 2–74, 39 FR 34722, the 2000, AS AMENDED
(a) The Federal Employees’ Secretary revoked the prior Secretary’s
Compensation Act, as amended and Order No. 18–67, 32 FR 12979, which Subpart A—General Provisions
extended (5 U.S.C. 8101 et seq.), except had delegated authority and assigned Introduction
5 U.S.C. 8149 as it pertains to the responsibility for the various workers’
Employees’ Compensation Appeals Sec.
compensation programs enumerated in 30.0 What are the provisions of the
Board. § 1.2, except the Black Lung Benefits EEOICPA, in general?
(b) The War Hazards Compensation Program and the Energy Employees 30.1 What rules govern the administration
Act (42 U.S.C. 1701 et seq.). Occupational Illness Compensation of the EEOICPA and this chapter?
(c) The War Claims Act (50 U.S.C. Program not then in existence, to the 30.2 In general, how have the tasks
App. 2003). Director of the former Bureau of associated with the administration of the
(d) The Energy Employees Employees’ Compensation. EEOICPA claims process been assigned?
Occupational Illness Compensation 30.3 What do these regulations contain?
Program Act of 2000, as amended (42 § 1.6 How were many of OWCP’s current
Definitions
U.S.C. 7384 et seq.), except activities, functions administered in the past?
pursuant to Executive Order 13179 (a) Administration of the Federal 30.5 What are the definitions used in this
part?
(‘‘Providing Compensation to America’s Employees’ Compensation Act and the
Nuclear Weapons Workers’’) of Longshore and Harbor Workers’ Information in Program Records
December 7, 2000, assigned to the Compensation Act was initially vested 30.10 Are all OWCP records relating to
Secretary of Health and Human in an independent establishment known claims filed under the EEOICPA
Services, the Secretary of Energy and as the U.S. Employees’ Compensation considered confidential?
the Attorney General. Commission. By Reorganization Plan 30.11 Who maintains custody and control
(e) The Longshore and Harbor No. 2 of 1946 (3 CFR, 1943–1949 Comp., of claim records?
Workers’ Compensation Act, as p. 1064; 60 Stat. 1095, effective July 16, 30.12 What process is used by a person who
wants to obtain copies of or amend
amended and extended (33 U.S.C. 901 et 1946), the Commission was abolished
EEOICPA claim records?
seq.), except: 33 U.S.C. 919(d) with and its functions were transferred to the
respect to administrative law judges in Federal Security Agency to be Rights and Penalties
the Office of Administrative Law Judges; performed by a newly created Bureau of 30.15 May EEOICPA benefits be assigned,
33 U.S.C. 921(b) as it pertains to the Employees’ Compensation within such transferred or garnished?
Benefits Review Board; and activities, Agency. By Reorganization Plan No. 19 30.16 What penalties may be imposed in
pursuant to 33 U.S.C. 941, assigned to of 1950 (15 FR 3178, 3 CFR, 1949–1954 connection with a claim under the Act?
the Assistant Secretary of Labor for Comp., page 1010, 64 Stat. 1271), said 30.17 Is a beneficiary who defrauds the
government in connection with a claim
Occupational Safety and Health. Bureau was transferred to the
for benefits still entitled to those
(f) The Black Lung Benefits Act, as Department of Labor (DOL), and the benefits?
amended (30 U.S.C. 901 et seq.). authority formerly vested in the
Administrator, Federal Security Agency, Subpart B—Filing Claims; Evidence and
§ 1.3 What rules are contained in this Burden of Proof; Special Procedures for
chapter? was vested in the Secretary of Labor. By
Certain Cancer Claims
Reorganization Plan No. 6 of 1950 (15
The rules in this chapter are those
FR 3174, 3 CFR, 1949–1953 Comp., page Claims for Occupational Illness—Employee
governing the OWCP functions under or Survivor’s Actions
1004, 64 Stat. 1263), the Secretary of
the Federal Employees’ Compensation
Labor was authorized to make from time 30.100 In general, how does an employee
Act, the War Hazards Compensation
to time such provisions as he shall deem file for benefits?
Act, the War Claims Act and the Energy 30.101 In general, how is a survivor’s claim
appropriate, authorizing the
Employees Occupational Illness filed?
performance of any of his functions by
Compensation Program Act of 2000. 30.102 How does a claimant make sure that
any other officer, agency, or employee of
OWCP has the evidence necessary to
§ 1.4 Where are other rules concerning the DOL.
process the claim?
OWCP functions found? (b) In 1972, two separate
(a) The rules of the OWCP governing organizational units were established Claims for Occupational Illness—Actions of
its functions under the Longshore and within the Bureau: an Office of DOE
Harbor Workers’ Compensation Act and Workmen’s Compensation Programs (37 30.105 What must DOE do after an
its extensions are set forth in subchapter FR 20533) and an Office of Federal employee files a claim for an
A of chapter VI of this title. Employees’ Compensation (37 FR occupational illness?
(b) The rules of the OWCP governing 22979). In 1974, these two units were 30.106 What should DOE do when an
abolished and one organizational unit, employee with a claim for an
its functions under the Black Lung occupational illness dies?
Benefits Act program are set forth in the Office of Workers’ Compensation
subchapter B of chapter VI of this title. Programs, was established in lieu of the Evidence and Burden of Proof
(c) The rules and regulations of the Bureau of Employees’ Compensation (39 30.110 Who is entitled to compensation
Employees’ Compensation Appeals FR 34722). under the Act?
30.111 What is the claimant’s responsibility Eligibility Criteria for Certain Uranium the opinion of the physician selected by
with respect to burden of proof, Employees the employee?
production of documents, presumptions, 30.225 What are the criteria for eligibility 30.412 Who pays for second opinion and
and affidavits? for benefits for certain uranium referee examinations?
30.112 What kind of evidence is needed to employees?
establish covered employment and how Medical Reports
30.226 How does a claimant establish that
will that evidence be evaluated? 30.415 What are the requirements for
a covered uranium employee has
30.113 What are the requirements for medical reports?
sustained a consequential injury, illness
written medical documentation, 30.416 How and when should medical
or disease?
contemporaneous records, and other reports be submitted?
records or documents? Subpart D—Adjudicatory Process 30.417 What additional medical
30.114 What kind of evidence is needed to 30.300 What process will OWCP use to information may OWCP require to
establish a covered medical condition decide claims and to provide for support continuing payment of benefits?
and how will that evidence be administrative review of those decisions?
evaluated? Medical Bills
Recommended Decisions on Claims 30.420 How are medical bills submitted?
Special Procedures for Certain Cancer 30.421 What are the time frames for
Claims 30.305 How does OWCP determine
entitlement to EEOICPA compensation? submitting bills?
30.115 For those claims that do not seek 30.306 What does the recommended 30.422 If OWCP reimburses an employee
benefits pursuant to the Special decision contain? only partially for a medical expense,
Exposure Cohort provisions, what will 30.307 To whom is the recommended must the provider refund the balance of
OWCP do once it determines that a decision sent? the amount paid to the employee?
covered employee (or a survivor of such
an employee) has established that he or Hearings and Final Decisions on Claims Subpart F—Survivors; Payments and
she contracted cancer under § 30.211? Offsets; Overpayments
30.310 What must the claimant do if he or
Subpart C—Eligibility Criteria she objects to the recommended decision Survivors
or wants to request a hearing? 30.500 What special statutory definitions
General Provisions 30.311 What happens if the claimant does apply to survivors under the EEOICPA?
30.200 What is the scope of this subpart? not object to the recommended decision 30.501 What order of precedence will
or request a hearing within 60 days? OWCP use to determine which survivors
Eligibility Criteria for Claims Relating to 30.312 What will the FAB do if the
Covered Beryllium Illness are entitled to receive compensation
claimant objects to the recommended under the EEOICPA?
30.205 What are the criteria for eligibility decision but does not request a hearing? 30.502 When is entitlement for survivors
for benefits relating to covered beryllium 30.313 How is a review of the written determined for purposes of the
illness? record conducted? EEOICPA?
30.206 How does a claimant prove that the 30.314 How is a hearing conducted?
employee was a ‘‘covered beryllium 30.315 May a claimant postpone a hearing? Payment of Claims and Offset for Certain
employee’’ exposed to beryllium dust, 30.316 How does the FAB issue a final Payments
particles or vapor in the performance of decision on a claim? 30.505 What procedures will OWCP follow
duty? 30.317 Can the FAB request a further before it pays any compensation?
30.207 How does a claimant prove a response from the claimant or remand a 30.506 To whom and in what manner will
diagnosis of a covered beryllium disease? claim to the district office? OWCP pay compensation?
Eligibility Criteria for Claims Relating to 30.318 Can the FAB consider an objection 30.507 What compensation will be
Cancer to a determination by HHS with respect provided to covered employees who only
to an employee’s dose reconstruction? establish beryllium sensitivity?
30.210 What are the criteria for eligibility 30.319 May a claimant request 30.508 What is beryllium sensitivity
for benefits relating to cancer? reconsideration of a final decision of the monitoring?
30.211 How does a claimant establish that FAB?
the employee has or had contracted Overpayments
cancer? Reopening Claims 30.510 How does OWCP notify an
30.212 How does a claimant establish that 30.320 Can a claim be reopened after the individual of a payment made on a
the employee contracted cancer after FAB has issued a final decision? claim?
beginning employment at a DOE facility 30.511 What is an ‘‘overpayment’’ for
or an atomic weapons employer facility? Subpart E—Medical and Related Benefits
purposes of the EEOICPA?
30.213 How does a claimant establish that Medical Treatment and Related Issues 30.512 How does OWCP determine that a
the cancer was at least as likely as not beneficiary owes a debt as the result of
related to the employment at the DOE 30.400 What are the basic rules for
obtaining medical care? the creation of an overpayment?
facility or the atomic weapons employer 30.513 How are overpayments collected?
facility? 30.401 What are the special rules for the
30.214 How does a claimant establish that services of chiropractors? Subpart G—Special Provisions
the employee is a member of the Special 30.402 What are the special rules for the
services of clinical psychologists? Representation
Exposure Cohort?
30.215 How does a claimant establish that 30.403 Will OWCP pay for the services of 30.600 May a claimant designate a
the employee has been diagnosed with an attendant? representative?
cancer or has sustained a consequential 30.404 Will OWCP pay for transportation to 30.601 Who may serve as a representative?
injury, illness or disease? obtain medical treatment? 30.602 Who is responsible for paying the
30.405 After selecting a treating physician, representative’s fee?
Eligibility Criteria for Claims Relating to may an employee choose to be treated by 30.603 Are there any limitations on what
Chronic Silicosis another physician instead? the representative may charge the
30.220 What are the criteria for eligibility 30.406 Are there any exceptions to these claimant for his or her services?
for benefits relating to chronic silicosis? procedures for obtaining medical care?
30.221 How does a claimant prove exposure Third Party Liability
to silica in the performance of duty? Directed Medical Examinations 30.605 What rights does the United States
30.222 How does a claimant establish that 30.410 Can OWCP require an employee to have upon payment of compensation
the employee has been diagnosed with be examined by another physician? under the EEOICPA?
chronic silicosis or has sustained a 30.411 What happens if the opinion of the 30.606 Under what circumstances must a
consequential injury, illness or disease? physician selected by OWCP differs from recovery of money or other property in
connection with an illness for which 30.710 How are payments for inpatient (a) The EEOICPA provides for the
benefits are payable under the EEOICPA medical services determined? payment of either monetary
be reported to OWCP? 30.711 When and how are fees reduced? compensation for the disability of a
30.607 How is a structured settlement (that 30.712 If OWCP reduces a fee, may a
is, a settlement providing for receipt of
covered employee due to an
provider request reconsideration of the
funds over a specified period of time) reduction?
occupational illness or for monitoring
treated for purposes of reporting the 30.713 If OWCP reduces a fee, may a for beryllium sensitivity, as well as for
recovery? provider bill the employee for the medical and related benefits for such
30.608 How does the United States balance? illness.
calculate the amount to which it is
subrogated? Exclusion of Providers (b) All types of benefits and
30.609 Is a settlement or judgment received 30.715 What are the grounds for excluding conditions of eligibility listed in this
as a result of allegations of medical a provider for payment under this part? section are subject to the provisions of
malpractice in treating an illness covered 30.716 What will cause OWCP to the EEOICPA and of this part.
by the EEOICPA a recovery that must be automatically exclude a physician or
reported to OWCP? other provider of medical services and § 30.1 What rules govern the
30.610 Are payments to an employee or supplies? administration of the EEOICPA and this
eligible surviving beneficiary as a result 30.717 When are OWCP’s exclusion chapter?
of an insurance policy which the procedures initiated?
employee or eligible surviving In accordance with the EEOICPA,
30.718 How is a provider notified of Executive Order 13179 and Secretary’s
beneficiary has purchased a recovery OWCP’s intent to exclude him or her?
that must be reported to OWCP? 30.719 What requirements must the
Order No. 4–2001, the primary
30.611 If a settlement or judgment is provider’s reply and OWCP’s decision responsibility for administering the Act,
received for more than one medical meet? except for those activities assigned to
condition, can the amount paid on a 30.720 How can an excluded provider the Secretary of Health and Human
single EEOICPA claim be attributed to request a hearing? Services, the Secretary of Energy and
different conditions for purposes of
calculating the amount to which the
30.721 How are hearings assigned and the Attorney General, has been
scheduled? delegated to the Assistant Secretary of
United States is subrogated?
30.722 How are advisory opinions Labor for Employment Standards. The
Effect of Tort Suits Against Beryllium obtained? Assistant Secretary, in turn, has
Vendors and Atomic Weapons Employers 30.723 How will the administrative law
judge conduct the hearing and issue the
delegated the responsibility for
30.615 What type of tort suits filed against administering the Act to the Director of
beryllium vendors or atomic weapons recommended decision?
30.724 How can a party request review by the Office of Workers’ Compensation
employers may disqualify certain
claimants from receiving benefits under OWCP of the administrative law judge’s Programs (OWCP). Except as otherwise
EEOICPA? recommended decision? provided by law, the Director of OWCP
30.616 What happens if this type of tort suit 30.725 What are the effects of non- and his or her designees have the
was filed prior to October 30, 2000? automatic exclusion? exclusive authority to administer,
30.617 What happens if this type of tort suit 30.726 How can an excluded provider be interpret and enforce the provisions of
was filed during the period from October reinstated? the Act.
30, 2000 through December 28, 2001? Authority: 5 U.S.C. 301; 31 U.S.C. 3716
30.618 What happens if this type of tort suit and 3717; 42 U.S.C. 7384d, 7384t and 7384u; § 30.2 In general, how have the tasks
is filed after December 28, 2001? Executive Order 13179, 65 FR 77487, 3 CFR, associated with the administration of the
30.619 Do all the parties to this type of tort 2000 Comp., p. 321; Secretary of Labor’s EEOICPA claims process been assigned?
suit have to take these actions? Order No. 4–2001, 66 FR 29656.
30.620 How will OWCP ascertain whether a (a) In E.O. 13179, the President
claimant filed this type of tort suit and Subpart A—General Provisions assigned various tasks associated with
if he or she has been disqualified from the administration of the EEOICPA
receiving any benefits under the Introduction claims process among the Secretaries of
EEOICPA? Labor, Health and Human Services and
§ 30.0 What are the provisions of the Energy, and the Attorney General. In
Subpart H—Information for Medical
EEOICPA, in general?
Providers light of the fact that the Secretary of
Medical Records and Bills The Energy Employees Occupational Labor has been assigned primary
Illness Compensation Program Act of responsibility for administering the
30.700 What kind of medical records must
providers keep? 2000, as amended (EEOICPA or Act), 42 EEOICPA, almost the entire claims
30.701 How are medical bills to be U.S.C. 7384 et seq., provides for the process is within the exclusive control
submitted? payment of compensation benefits to of OWCP. This means that claimants file
30.702 How should an employee prepare covered employees and, where their claims with OWCP, and OWCP is
and submit requests for reimbursement applicable, survivors of such employees, responsible for granting or denying
for medical expenses, transportation of the United States Department of compensation under the Act (see
costs, loss of wages, and incidental Energy (DOE), its predecessor agencies §§ 30.100, 30.101, and 30.505 through
expenses?
30.703 What are the time limitations on
and certain of its contractors and 30.513). OWCP also provides assistance
OWCP’s payment of bills? subcontractors. It also provides for the to claimants and potential claimants by
payment of compensation to certain providing information regarding
Medical Fee Schedule persons already found eligible for eligibility and other program
30.705 What services are covered by the benefits under section 5 of the Radiation requirements, including information on
OWCP fee schedule? Exposure Compensation Act, as completing claim forms and the types
30.706 How are the maximum fees defined? amended (RECA), 42 U.S.C. 2210 note, and availability of medical testing and
30.707 How are payments for particular
services calculated?
and where applicable, survivors of such diagnostic services related to covered
30.708 Does the fee schedule apply to every employees. The regulations in this part illnesses. In addition, OWCP provides
kind of procedure? describe the rules for filing, processing, an administrative review process for
30.709 How are payments for medicinal and paying claims for benefits under the claimants who disagree with its
drugs determined? EEOICPA. recommended and final adverse
decisions (see §§ 30.300 through (f) Subpart F: the rules relating to the (f) Attorney General means the
30.320). payment of monetary compensation. It Attorney General of the United States or
(b) However, HHS has exclusive includes the provisions for identifying the United States Department of Justice
control of a portion of the claims and processing overpayments of (DOJ).
process involving certain cancer claims, compensation. (g) Benefit or Compensation means
and is therefore responsible for (g) Subpart G: the rules concerning the money the Department pays to or on
providing reconstructed doses for these legal representation of claimants before behalf of a covered employee from the
claims (see § 30.115). HHS has also OWCP, subrogation of the United States, Energy Employees Occupational Illness
promulgated regulations at 42 CFR part and the effect of tort suits against Compensation Fund. However, the term
81 establishing the guidelines that beryllium vendors and atomic weapons ‘‘compensation’’ used in section
OWCP must follow to assess the employers. 7385f(b) of the EEOICPA (with respect
likelihood that an individual with (h) Subpart H: information for to entitlement to only one payment of
cancer sustained the cancer in the medical providers. It includes rules for compensation) means only the
performance of duty (see § 30.210). DOE medical reports, medical bills, and the payments specified in section
and DOJ are responsible for, among OWCP medical fee schedule, as well as 7384s(a)(1) ($150,000 lump sum
other tasks, notifying potential the provisions for exclusion of medical payment) and in section 7384u(a)
claimants and submitting evidence that providers. ($50,000 payment to beneficiaries under
OWCP deems necessary for its section 5 of the RECA). Except as used
adjudication of claims under the Definitions in section 7385f(b), these two terms also
EEOICPA (see §§ 30.105, 30.106, and § 30.5 What are the definitions used in this include any other amounts paid out of
30.111). part? the Fund for such things as medical
(a) Act or EEOICPA means the Energy treatment, monitoring, examinations,
§ 30.3 What do these regulations contain?
Employees Occupational Illness services, appliances and supplies as
This part 30 sets forth the regulations well as for transportation and expenses
governing administration of all claims Compensation Program Act of 2000, as
amended (42 U.S.C. 7384 et seq.). incident to the securing of such medical
that are filed with OWCP, except to the treatment, monitoring, examinations,
extent specified in certain provisions. (b) Atomic weapon means any device
utilizing atomic energy, exclusive of the services, appliances, and supplies.
Its provisions are intended to assist (h) Beryllium sensitization or
persons seeking benefits under the means for transporting or propelling the
device (where such means is a separable sensitivity means that the individual has
EEOICPA, as well as personnel in the an abnormal beryllium lymphocyte
various federal agencies and DOL who and divisible part of the device), the
principle purpose of which is for use as, proliferation test (LPT) performed on
process claims filed under the EEOICPA either blood or lung lavage cells.
or who perform administrative or for development of, a weapon, a
weapon prototype, or a weapon test (i) Beryllium vendor means the
functions with respect to the EEOICPA. specific corporations and named
The various subparts of this part contain device.
(c) Atomic weapons employee means predecessor corporations listed in
the following: section 7384l(6) of the Act and any of
(a) Subpart A: the general statutory an individual employed by an atomic
weapons employer during a period the facilities designated as such in the
and administrative framework for list periodically published in the
processing claims under the EEOICPA. when the employer was processing or
producing, for the use by the United Federal Register by DOE.
It contains a statement of purpose and (j) Chronic silicosis means a non-
scope, together with definitions of States, material that emitted radiation
malignant lung disease if:
terms, information regarding the and was used in the production of an (1) The initial occupational exposure
disclosure of OWCP records, and a atomic weapon, excluding uranium to silica dust preceded the onset of
description of rights and penalties mining and milling. silicosis by at least 10 years; and
under the EEOICPA, including (d) Atomic weapons employer means (2) A written diagnosis of silicosis is
convictions for fraud. any entity, other than the United States, made by a medical doctor and is
(b) Subpart B: the rules for filing that: accompanied by:
claims for benefits under the EEOICPA. (1) Processed or produced, for use by (i) A chest radiograph, interpreted by
It also addresses general standards the United States, material that emitted an individual certified by the National
regarding necessary evidence and the radiation and was used in the Institute for Occupational Safety and
burden of proof, descriptions of basic production of an atomic weapon, Health as a B reader, classifying the
forms and special procedures for certain excluding uranium mining and milling; existence of pneumoconioses of
cancer claims. and category 1/0 or higher; or
(c) Subpart C: the eligibility criteria (2) Is designated by the Secretary of (ii) Results from a computer assisted
for conditions covered by the EEOICPA. Energy as an atomic weapons employer tomograph or other imaging technique
(d) Subpart D: the rules governing the for purposes of the compensation that are consistent with silicosis; or
adjudication process leading from program. (iii) Lung biopsy findings consistent
recommended to final decisions made (e) Atomic weapons employer facility with silicosis.
on claims filed under the EEOICPA. It means any facility, owned by an atomic (k) Claim means a written assertion of
also describes the hearing and weapons employer, that: an individual’s entitlement to benefits
reopening processes. (1) Is or was used to process or under the EEOICPA, submitted in a
(e) Subpart E: the rules governing produce, for use by the United States, manner authorized by this part.
medical care, second opinion and material that emitted radiation and was (l) Claimant means the individual
referee medical examinations directed used in the production of an atomic who is alleged to satisfy the criteria for
by OWCP, and medical reports and weapon, excluding uranium mining or compensation under the Act.
records in general. It also addresses the milling; and (m) Compensation fund or fund
kinds of treatment that may be (2) Is designated as such in the list means the fund established on the books
authorized and how medical bills are periodically published in the Federal of the Treasury for payment of benefits
paid. Register by DOE. and compensation under the Act.
(n) Contemporaneous record means (u) Department of Energy contractor manipulation of the spine to correct a
any document created at or around the employee means any of the following: subluxation as demonstrated by x-ray to
time of the event that is recorded in the (1) An individual who is or was in exist.
document. residence at a DOE facility as a (cc) Qualified physician means any
(o) Covered beryllium illness means researcher for one or more periods physician who has not been excluded
any of the following: aggregating at least 24 months. under the provisions of subpart H of this
(1) Beryllium sensitivity as (2) An individual who is or was part. Except as otherwise provided by
established by an abnormal LPT employed at a DOE facility by: regulation, a qualified physician shall
performed on either blood or lung (i) An entity that contracted with the be deemed to be designated or approved
lavage cells. DOE to provide management and by OWCP.
(2) Established chronic beryllium operating, management and integration, (dd) Specified cancer (as defined in
disease (see § 30.207(c)). or environmental remediation at the section 4(b)(2) of the RECA and in the
(3) Any injury, illness, impairment, or facility; or Act) means:
disability sustained as a consequence of (ii) A contractor or subcontractor that (1) Leukemia (other than chronic
a covered beryllium illness referred to provided services, including lymphocytic leukemia) provided that
in paragraphs (o)(1) or (2) of this construction and maintenance, at the the onset of the disease was at least 2
section. facility. years after first exposure;
(p) Covered employee means a (v) Department of Energy facility (2) Lung cancer (other than in situ
covered beryllium employee (see means any building, structure, or lung cancer that is discovered during or
§ 30.205), a covered employee with premise, including the grounds upon after a post-mortem exam);
cancer (see § 30.210), a covered which such building, structure, or (3) Bone cancer;
employee with chronic silicosis (see premise is located: (4) Renal cancers; or
§ 30.220), or a covered uranium (1) In which operations are, or have (5) The following diseases, provided
employee (see paragraph (q) of this been, conducted by, or on behalf of, the onset was at least 5 years after first
section). DOE (except for buildings, structures, exposure:
(q) Covered uranium employee means premises, grounds, or operations (i) Multiple myeloma;
an individual who has been determined covered by E.O. 12344, dated February (ii) Lymphomas (other than Hodgkin’s
by DOJ to be entitled to an award under 1, 1982, pertaining to the Naval Nuclear disease); and
section 5 of the RECA, regardless of Propulsion Program); and (iii) Primary cancer of the:
whether the individual was the (2) With regard to which the DOE has (A) Thyroid;
employee or the deceased employee’s or had: (B) Male or female breast;
survivor. (i) A proprietary interest; or (C) Esophagus;
(r) Current or former employee as (ii) Entered into a contract with an (D) Stomach;
defined in 5 U.S.C. 8101(1) as used in entity to provide management and (E) Pharynx;
§ 30.205(a)(1) means an individual who operation, management and integration, (F) Small intestine;
fits within one of the following listed environmental remediation services, (G) Pancreas;
groups: construction, or maintenance services. (H) Bile ducts;
(1) A civil officer or employee in any (w) Disability means, for purposes of (I) Gall bladder;
branch of the Government of the United determining entitlement to payment (J) Salivary gland;
States, including an officer or employee under section 7384s(a)(1) of the Act, (K) Urinary bladder;
of an instrumentality wholly owned by having been determined by OWCP to (L) Brain;
the United States; have or have had established chronic (M) Colon;
(2) An individual rendering personal beryllium disease, cancer, or chronic (N) Ovary; or
service to the United States similar to silicosis. (O) Liver (except if cirrhosis or
the service of a civil officer or employee (x) Eligible surviving beneficiary hepatitis B is indicated).
of the United States, without pay or for means any individual who is entitled (6) The specified diseases designated
nominal pay, when a statute authorizes under sections 7384s(e) or 7384u(e) of in this section mean the physiological
the acceptance or use of the service, or the Act to receive a payment on behalf condition or conditions that are
authorizes payment of travel or other of a deceased covered employee. recognized by the National Cancer
expenses of the individual; (y) Employee means either a current Institute under those names or
(3) An individual, other than an or former employee. nomenclature, or under any previously
independent contractor or individual (z) Occupational illness means a accepted or commonly used names or
employed by an independent contractor, covered beryllium illness, cancer nomenclature.
employed on the Menominee Indian sustained in the performance of duty as (ee) Survivor means:
Reservation in Wisconsin in operations defined in § 30.210(b), specified cancer, (1) Subject to paragraph (ee)(2) of this
conducted under a statute relating to or chronic silicosis. section, a surviving spouse, child,
tribal timber and logging operations on (aa) OWCP means the Office of parent, grandchild and grandparent of a
that reservation; Workers’ Compensation Programs, deceased covered employee.
(4) An individual appointed to a United States Department of Labor. (2) Those individuals listed in
position on the office staff of a former (bb) Physician includes surgeons, paragraph (ee)(1) of this section do not
President; or podiatrists, dentists, clinical include any individuals not living as of
(5) An individual selected and serving psychologists, optometrists, the time OWCP makes a lump-sum
as a Federal petit or grand juror. chiropractors, and osteopathic payment or payments to an eligible
(s) Department means the United practitioners within the scope of their surviving beneficiary or beneficiaries.
States Department of Labor (DOL). practice as defined by State law. The (ff) Time of injury means:
(t) Department of Energy or DOE term ‘‘physician’’ includes chiropractors (1) In regard to a claim arising out of
includes the predecessor agencies of the only to the extent that their exposure to beryllium or silica, the last
DOE, including the Manhattan reimbursable services are limited to date on which a covered employee was
Engineering District. treatment consisting of manual exposed to such substance in the
performance of duty in accordance with directed to the district office having disease for which the time of injury was
sections 7384n(a) or 7384r(c) of the Act; custody of the official file. on or before the date of such guilty plea
or (c) Any administrative appeal taken or verdict. Any subsequent change in or
(2) In regard to a claim arising out of from a denial issued by OWCP under recurrence of the beneficiary’s medical
exposure to radiation, the last date on this section shall be filed with the condition does not affect termination of
which a covered employee was exposed Solicitor of Labor in accordance with 29 entitlement under this section.
to radiation in the performance of duty CFR 71.7 and 71.9.
in accordance with section 7384n(b) of Subpart B—Filing Claims; Evidence
Rights and Penalties and Burden of Proof; Special
the Act or, in the case of a member of
the Special Exposure Cohort, the last § 30.15 May EEOICPA benefits be Procedures for Certain Cancer Claims
date on which the member of the assigned, transferred or garnished? Claims for Occupational Illness—
Special Exposure Cohort was employed (a) Pursuant to section 7385f(a) of the Employee or Survivor’s Actions
at the Department of Energy facility or Act, no claim for EEOICPA benefits may
the atomic weapons employer facility at be assigned or transferred. § 30.100 In general, how does an employee
which the member was exposed to (b) Provisions of the Social Security file for benefits?
radiation. Act (42 U.S.C. 659) and regulations (a) To claim benefits under the
(gg) Workday means a single issued by the Office of Personnel EEOICPA, an employee must file a
workshift whether or not it occurred on Management at 5 CFR part 581 permit claim in writing on or after July 31,
more than one calendar day. the garnishment of lump-sum payments 2001. Form EE–1 should be used for this
of EEOICPA benefits to collect overdue purpose, but any written
Information in Program Records
alimony and child support. A request to communication that requests benefits
§ 30.10 Are all OWCP records relating to garnish a lump-sum payment for either under the EEOICPA will be considered
claims filed under the EEOICPA considered of these purposes should be submitted a claim. It will, however, be necessary
confidential? to the district office that is handling the for an employee to submit a Form EE–
All OWCP records relating to claims EEOICPA claim, and must be 1 for OWCP to fully develop the claim.
for benefits under the EEOICPA are accompanied by a copy of the pertinent Copies of Form EE–1 may be obtained
considered confidential and may not be State agency or court order. from OWCP, from DOE, or on the
released, inspected, copied or otherwise Internet at www.dol.gov/esa/regs/
disclosed except as provided in the § 30.16 What penalties may be imposed in compliance/owcp/eeoicp/main.htm.
connection with a claim under the Act? The employee must file his or her claim
Freedom of Information Act and the
Privacy Act of 1974. (a) Other statutory provisions make it with OWCP, or another person may do
a crime to file a false or fraudulent claim so on the employee’s behalf.
§ 30.11 Who maintains custody and or statement with the Federal (b) The employee may withdraw his
control of claim records? government in connection with a claim or her claim by so requesting in writing
All OWCP records relating to claims under the Act. Included among these to OWCP at any time before OWCP
for benefits filed under the Act are provisions is 18 U.S.C. 1001. determines eligibility for benefits.
covered by the Privacy Act system of Enforcement of criminal provisions that (c) A claim is considered to be ‘‘filed’’
records entitled DOL/ESA–49 (Office of may apply to claims under the Act is on the date that the employee mails his
Workers’ Compensation Programs, within the jurisdiction of the or her claim to OWCP, as determined by
Energy Employees Occupational Illness Department of Justice. postmark, or on the date that the claim
Compensation Program Act File). This (b) In addition, administrative is received by OWCP or DOE, whichever
system of records is maintained by and proceedings may be initiated under the is the earliest determinable date, but in
under the control of OWCP, and, as Program Fraud Civil Remedies Act of no event earlier than July 31, 2001.
such, all records covered by DOL/ESA– 1986 (PFCRA), 31 U.S.C. 3801 et seq., to (1) The employee, or the person filing
49 are official records of OWCP. The impose civil penalties and assessments the claim on behalf of the employee,
protection, release, inspection and against persons or entities who make, shall affirm that the information
copying of records covered by DOL/ submit or present, or cause to be made, provided on the Form EE–1 is true, and
ESA–49 shall be accomplished in submitted or presented, false, fictitious must inform OWCP of any subsequent
accordance with the rules, guidelines or fraudulent claims or written changes to that information.
and provisions of this part, as well as statements to OWCP in connection with (2) Except for a covered uranium
those contained in 29 CFR parts 70 and a claim under the EEOICPA. The employee, the employee is responsible
71, and with the notice of the system of Department’s regulations implementing for submitting, or arranging for the
records and routine uses published in the PFCRA are found at 29 CFR part 22. submission of, medical evidence to
the Federal Register. All questions OWCP that establishes that he or she
§ 30.17 Is a beneficiary who defrauds the sustained an occupational illness.
relating to access, disclosure, and/or
government in connection with a claim for
amendment of claims records benefits still entitled to those benefits? § 30.101 In general, how is a survivor’s
maintained by OWCP are to be resolved claim filed?
When a beneficiary either pleads
in accordance with this section.
guilty to or is found guilty on either (a) A survivor of an employee who
§ 30.12 What process is used by a person Federal or State criminal charges of sustained an occupational illness may
who wants to obtain copies of or amend defrauding the Federal or a State file a claim for compensation in writing
EEOICPA claim records? government in connection with a claim on or after July 31, 2001. Form EE–2
(a) A claimant seeking copies of his or for benefits under the Act or any other should be used for this purpose, but any
her official EEOICPA file should address Federal or State workers’ compensation written communication that requests
a request to the District Director of the law, the beneficiary’s entitlement to any benefits under the Act will be
OWCP district office having custody of further benefits will terminate effective considered a claim. It will, however, be
the file. the date either the guilty plea is necessary for a survivor to submit a
(b) Any request to amend a record accepted or a verdict of guilty is Form EE–2 for OWCP to fully develop
covered by DOL/ESA–49 should be returned after trial, for any occupational the claim. Copies of Form EE–2 may be
obtained from OWCP, from DOE, or on Form No. Title information about completing and filing
the Internet at www.dol.gov/esa/regs/ the form.
compliance/owcp/eeoicp/main.htm. (3) EE–3 ........... Employment History for (b) DOE shall complete Form EE–5 as
The claiming survivor must file his or Claim Under Energy Em- soon as possible and transmit the
her claim with OWCP, or another ployees Occupational Ill- completed form to OWCP. On this form,
person may do so on the survivor’s ness Compensation Pro- DOE shall certify that it concurs with
gram Act.
behalf. Although only one survivor need the employment information provided
(4) EE–4 ........... Employment History Affi-
file a claim under this section to initiate davit for Claim Under the by the survivor, or that it disagrees with
the development process, OWCP will Energy Employees Oc- such information, or that it can neither
distribute any monetary benefits paid cupational Illness Com- concur nor disagree after making a
among all eligible surviving pensation Program Act. reasonable search of its records and also
beneficiaries pursuant to the terms of (5) EE–5 ........... Department of Energy’s making a reasonable effort to locate
§ 30.501. Response to Employ- pertinent records not already in its
ment History for Claim possession.
(b) A survivor may withdraw his or Under the Energy Em-
her claim by so requesting in writing to (c) Upon request of a survivor, DOE
ployees Occupational Ill- shall also assist such survivor in
OWCP at any time before OWCP ness Compensation Pro-
determines eligibility for benefits. gram Act.
completing Form EE–4 and transmit the
(6) EE–7 ........... Medical Requirements completed form to OWCP.
(c) A survivor must be alive to receive (d) DOE should not wait for the
Under the Energy Em-
any payment; there is no vested right to ployees Occupational Ill- claiming survivor to submit the
such payment. ness Compensation Pro- necessary supporting medical evidence
(d) A survivor’s claim is considered to gram Act (EEOICPA). before it forwards any Form EE–2 (or
be ‘‘filed’’ on the date that the survivor other document containing a survivor’s
mails his or her claim to OWCP, as (b) Copies of the forms listed in this claim) it has received to OWCP.
determined by postmark, or the date section are available for public
inspection at the Office of Workers’ Evidence and Burden of Proof
that the claim is received by OWCP or
DOE, whichever is the earliest Compensation Programs, Employment § 30.110 Who is entitled to compensation
determinable date, but in no event Standards Administration, U.S. under the Act?
earlier than July 31, 2001. Department of Labor, Washington, D.C. (a) Compensation is payable to the
(1) The survivor, or the person filing 20210. They may also be obtained from following covered employees, or their
the claim on behalf of the survivor, shall OWCP district offices, from DOE, and survivors:
affirm that the information provided on on the Internet at www.dol.gov/esa/regs/ (1) A ‘‘covered beryllium employee’’
the Form EE–2 is true, and must inform compliance/owcp/eeoicp/main.htm. (as described in § 30.205(a)) who has
OWCP of any subsequent changes to Claims for Occupational Illness— been diagnosed with a covered
that information. Actions of DOE beryllium illness (as defined in
§ 30.5(o)) and was exposed to beryllium
(2) Except for the survivor of a § 30.105 What must DOE do after an in the performance of duty (in
covered uranium employee, the survivor employee files a claim for an occupational accordance with § 30.206).
is responsible for submitting, or illness? (2) A ‘‘covered employee with cancer’’
arranging for the submission of, (a) DOE shall complete Form EE–5 as (as described in § 30.210).
evidence to OWCP that establishes that soon as possible and transmit the (3) A ‘‘covered employee with chronic
the employee upon whom the survivor’s completed form to OWCP. On this form, silicosis’’ (as described in § 30.220).
claim is based was eligible for such DOE shall certify that it concurs with (4) A ‘‘covered uranium employee’’
benefits, including medical evidence the employment information provided (as defined in § 30.5(q)).
that establishes that the employee by the employee, or that it disagrees (b) Any claim that does not meet all
sustained an occupational illness. with such information, or that it can of the criteria for at least one of these
§ 30.102 How does a claimant make sure neither concur nor disagree after making categories, as set forth in these
that OWCP has the evidence necessary to a reasonable search of its records and regulations, must be denied.
process the claim? also making a reasonable effort to locate (c) All claims for benefits under the
pertinent records not already in its Act must comply with the claims
(a) Claims and certain required possession. procedures and requirements set forth
submissions should be made on forms (b) Upon request of a claimant, DOE in subpart B of this part before any
prescribed by OWCP. Persons shall also assist such claimant in payment can be made from the Fund.
submitting forms shall not modify these completing Form EE–4 and transmit the
forms or use substitute forms. DOE is completed form to OWCP. § 30.111 What is the claimant’s
expected to maintain an adequate (c) DOE should not wait for the responsibility with respect to burden of
supply of the basic forms needed for proof, production of documents,
employee to submit the necessary presumptions, and affidavits?
filing claims under the EEOICPA. supporting medical evidence before it
forwards any Form EE–1 (or other (a) Except where otherwise provided
Form No. Title document containing an employee’s in the Act and these regulations, the
claim) it has received to OWCP. claimant bears the burden of proving by
(1) EE–1 ........... Claim for Benefits Under a preponderance of the evidence the
Energy Employees Oc- § 30.106 What should DOE do when an existence of each and every criterion
cupational Illness Com- employee with a claim for an occupational necessary to establish eligibility under
pensation Program Act. illness dies?
(2) EE–2 ........... Claim for Survivor Benefits any compensable claim category set
Under Energy Employ- (a) When possible, DOE shall furnish forth in § 30.110. Proof by a
ees Occupational Illness a Form EE–2 to all survivors likely to be preponderance of the evidence means
Compensation Program entitled to compensation after the death that it is more likely than not that the
Act. of an employee. DOE should also supply proposition to be proved is true. Subject
to the exceptions expressly provided in effort to locate pertinent records not condition no longer exist, then OWCP
the Act and these regulations, the already in its possession, it can neither may consider other evidence to
claimant also bears the burden of concur nor disagree with the establish a diagnosis and date of
providing to OWCP all written medical information provided by the claimant. diagnosis of a covered medical
documentation, contemporaneous (1) If DOE certifies that it concurs condition. However, if the certified
records, or other records and documents with the employment information statement is a self-serving document,
necessary to establish any and all provided by the claimant, then the OWCP may reject the claim based upon
criteria for benefits set forth in these criterion for covered employment will a lack of evidence of a covered medical
regulations. be established. condition.
(b) In the event that the claim lacks (2) If DOE certifies that it disagrees
required information or supporting with the information provided by the § 30.114 What kind of evidence is needed
documentation, OWCP will notify the claimant or that after a reasonable to establish a covered medical condition
employee, survivor, and/or DOE of the search of its records and a reasonable and how will that evidence be evaluated?
deficiencies and provide an opportunity effort to locate pertinent records not
(a) Evidence of a covered medical
for correction of the deficiencies. already in its possession it can neither
(c) Written affidavits or declarations, condition may include: A physician’s
concur nor disagree with the
subject to penalty for perjury, by the information provided by the claimant, report, laboratory reports, hospital
employee, survivor or any other person, OWCP will evaluate the evidence records, death certificates, x-rays,
will be accepted as evidence of submitted by the claimant to determine magnetic resonance images or reports,
employment history and survivor whether the claimant has established computer axial tomography or other
relationship for purposes of establishing covered employment by a imaging reports, lymphocyte
eligibility and may be relied on in preponderance of the evidence. OWCP proliferation testings, beryllium patch
determining whether a claim meets the may request additional evidence from tests, pulmonary function or exercise
requirements of the Act for benefits if, the claimant to demonstrate that the testing results, pathology reports
and only if, such person attests that due claimant has met the criterion for including biopsy results and other
diligence was used to obtain records in covered employment. Nothing in this medical records. A claimant is not
support of the claim, but that no records section shall be construed to limit required to submit all of the evidence
exist. OWCP’s ability to require additional listed in this paragraph. A claimant may
(d) A claimant will not be entitled to documentation. submit other evidence that is not listed
any presumption otherwise provided for (3) If the only evidence of covered in this paragraph to establish a covered
in these regulations if substantial employment is a self-serving affidavit medical condition. Nothing in this
evidence exists that rebuts the existence and DOE either disagrees with the section shall be construed to limit
of the fact that is the subject of the assertion of covered employment or OWCP’s ability to require additional
presumption. Substantial evidence cannot concur or disagree with the documentation.
means such relevant evidence as a assertion of covered employment, then
reasonable mind might accept as OWCP may reject the claim based upon (b) The medical evidence submitted
adequate to support a conclusion. When a lack of evidence of covered will be used to establish the diagnosis
such evidence exists, the covered employment. and the date of diagnosis of the covered
employee or his or her survivor shall be medical condition.
notified and afforded the opportunity to § 30.113 What are the requirements for
written medical documentation,
(1) For covered beryllium illnesses,
submit additional written medical additional medical evidence, as set forth
contemporaneous records, and other
documentation or records. records or documents? in § 30.207, is required to establish a
§ 30.112 What kind of evidence is needed (a) All written medical beryllium illness.
to establish covered employment and how documentation, contemporaneous (2) For chronic silicosis, additional
will that evidence be evaluated? records, and other records or documents medical evidence, as set forth in
(a) Evidence of covered employment submitted by an employee or his or her § 30.222, is required to establish chronic
may include: employment records; pay survivor to prove any criteria provided silicosis.
stubs; tax returns; social security for in these regulations must be legible.
(3) For consequential injuries or
records; and written affidavits or OWCP will accept photocopies, certified
declarations, subject to penalty of illnesses, the claimant must also submit
copies, and original documents and
perjury, by the employee, survivor or records. a physician’s fully rationalized medical
any other person. However, no one (b) To establish eligibility, the report showing the causal relationship
document is required to establish employee or his or her survivor may be between the resulting illness or injury
covered employment and a claimant is required to provide, where appropriate, and the covered medical condition.
not required to submit all of the additional contemporaneous records to (c) OWCP will evaluate the medical
evidence listed above. A claimant may the extent they exist or an authorization evidence in accordance with recognized
submit other evidence not listed above to release additional contemporaneous and accepted diagnostic criteria used by
to establish covered employment. To be records or a statement by the physicians to determine whether the
acceptable as evidence, all documents custodian(s) of the record(s) certifying claimant has established the medical
and records must be legible. OWCP will that the requested record(s) no longer condition for which compensation is
accept photocopies, certified copies, exist. Nothing in this section shall be sought in accordance with the
and original documents and records. construed to limit OWCP’s ability to requirements of the Act.
(b) DOE shall certify that it concurs require additional documentation.
with the employment information (c) If a claimant submits a certified
provided by the claimant, that it statement, by a person with knowledge
disagrees with the information provided of the facts, that the medical records
by the claimant, or, after a reasonable containing a diagnosis and date of
search of its records and a reasonable diagnosis of a covered medical
Special Procedures for Certain Cancer Eligibility Criteria for Claims Relating § 30.206 How does a claimant prove that
Claims to Covered Beryllium Illness the employee was a ‘‘covered beryllium
employee’’ exposed to beryllium dust,
§ 30.115 For those claims that do not seek § 30.205 What are the criteria for eligibility particles or vapor in the performance of
benefits pursuant to the Special Exposure for benefits relating to covered beryllium duty?
Cohort provisions, what will OWCP do once illness?
it determines that a covered employee (or (a) Proof of employment at or physical
To establish eligibility for benefits
a survivor of such an employee) has presence at a DOE facility, or a facility
under this section, the claimant must
established that he or she contracted owned, operated, or occupied by a
establish the criteria set forth in both
cancer under § 30.211? beryllium vendor, because of
paragraphs (a) and (b) of this section:
(a) Other than claims solely for a non- (a) The employee is a covered employment by the United States, a
radiogenic cancer listed by HHS at 42 beryllium employee by establishing: beryllium vendor, or a contractor or
CFR 81.30, OWCP will forward any (1) The employee is a ‘‘current or subcontractor of a beryllium vendor
such claimant’s application package former employee as defined in 5 U.S.C. during a period when beryllium dust,
(including, but not limited to, Forms 8101(1)’’ (see § 30.5(r) of this part) who particles, or vapor may have been
EE–1, EE–2, EE–3, EE–4 and EE–5, as may have been exposed to beryllium at present at such a facility, may be made
appropriate) to HHS for dose a DOE facility or at a facility owned, by the submission of any trustworthy
reconstruction. At that point in time, operated, or occupied by a beryllium records that, on their face or in
development of the claim by OWCP is vendor; or conjunction with other such records,
suspended. (2) The employee is a current or establish that the employee was
(1) This package will include OWCP’s former employee of: employed or present at a covered
initial findings in regard to the covered (i) Any entity that contracted with the facility and the time period of such
employee’s diagnosis and date of DOE to provide management and employment or presence.
diagnosis, as well as any employment operation, management and integration, (b) If the evidence shows that
history compiled by OWCP (including or environmental remediation of a DOE exposure occurred while the employee
information such as dates and locations facility; or was employed or present at a facility
worked, and job titles). The package, (ii) Any contractor or subcontractor during a time frame that is outside the
however, does not constitute a that provided services, including relevant time frame indicated for that
recommended or final decision by construction and maintenance, at such a facility by DOE, OWCP may request that
OWCP on the claim. facility; or DOE provide additional information on
(2) HHS will then reconstruct the (iii) A beryllium vendor, or of a the facility. OWCP will determine
covered employee’s radiation dose, contractor or subcontractor of a whether the evidence of record supports
following such further development of beryllium vendor, during a period when enlarging the relevant time frame for
the employment history as it may deem the vendor was engaged in activities that facility.
necessary, and provide OWCP, DOE and related to the production or processing
the claimant with the final dose (c) If the evidence shows that
of beryllium for sale to, or use by, the
reconstruction report. The final dose exposure occurred while the employee
DOE; and
reconstruction record will be delivered (3) The employee was exposed to was employed or present at a facility
to OWCP with the final dose beryllium in the performance of duty by that would have to be designated by
reconstruction report and to the establishing that he or she was, during DOE as a beryllium vendor under
claimant upon request. a period when beryllium dust, particles, section 7384m of the Act to be a covered
(b) Following its receipt of the or vapor may have been present at such facility, and that the facility has not
reconstructed dose from HHS, OWCP a facility: been so designated, OWCP will deny the
will consider whether the claimant has (i) Employed at a DOE facility (as claim on the ground that the facility is
met the eligibility criteria set forth in defined in § 30.5(v) of this part); or not a covered facility.
subpart C of this part. (ii) Present at a DOE facility, or at a (d) Records from the following
facility owned, operated, or occupied by sources may be considered as evidence
Subpart C—Eligibility Criteria a beryllium vendor, because of his or for purposes of establishing
General Provisions her employment by the United States, a employment or presence at a covered
beryllium vendor, or a contractor or facility:
§ 30.200 What is the scope of this subcontractor of the DOE. Under this (1) Records or documents created by
subpart? paragraph, exposure to beryllium in the any Federal government agency
The regulations in this subpart performance of duty can be established (including verified information
describe the criteria for eligibility for whether or not the beryllium that may submitted for security clearance), any
benefits for claims relating to covered have been present at such facility was tribal government, or any State, county,
beryllium illness under sections 7384l, produced or processed for sale to, or use city or local government office, agency,
7384n, 7384s and 7384t of the Act; for by, DOE. department, board or other entity, or
claims relating to employees with (b) The employee has one of the other public agency or office.
cancer under sections 7384l, 7384n, following:
7384q and 7384t of the Act; for claims (1) Beryllium sensitivity as (2) Records or documents created by
relating to chronic silicosis under established by an abnormal beryllium any vendor, processor, or producer of
sections 7384l, 7384r, 7384s and 7384t; LPT performed on either blood or lung beryllium or related products
and for claims relating to covered lavage cells. designated as a beryllium vendor by the
uranium employees under sections (2) Established chronic beryllium DOE in accordance with section 7384m
7384t and 7384u. This subpart describes disease. of the Act.
the type and extent of evidence that will (3) Any injury, illness, impairment, or (3) Records or documents created by
be accepted as evidence of the various disability sustained as a consequence of any regularly conducted business
criteria for eligibility for compensation the conditions specified in paragraphs activity or entity that acted as a
for each of these illnesses. (b)(1) and (2) of this section. contractor or subcontractor to the DOE.
§ 30.207 How does a claimant prove a sensitivity or established chronic in conjunction with other such records,
diagnosis of a covered beryllium disease? beryllium disease is sufficient in itself establish that the employee was so
(a) Written medical documentation is to prove a causal relationship. employed and the time period(s) of such
required in all cases to prove that the employment.
Eligibility Criteria for Claims Relating (b) If the evidence shows that
employee developed a covered
to Cancer exposure occurred while the employee
beryllium illness. Proof that the
employee developed a covered § 30.210 What are the criteria for eligibility was employed at a facility during a time
beryllium illness must be made by using for benefits relating to cancer? frame that is outside the relevant time
the procedures outlined in paragraphs To establish eligibility for benefits for frame indicated for that facility by DOE,
(b), (c), or (d) of this section. cancer, an employee or his or her OWCP may request that DOE provide
(b) Beryllium sensitivity or survivor must show that: additional information on the facility.
sensitization is established with an (a) The employee has been diagnosed OWCP will determine whether the
abnormal LPT performed on either with one of the forms of cancer evidence of record supports enlarging
blood or lung lavage cells. specified in § 30.5(dd) of this part; and the relevant time frame for that facility.
(c) Chronic beryllium disease is (c) If the evidence shows that
(1) Is a member of the Special
established in the following manner: exposure occurred while the employee
Exposure Cohort (as described in
(1) For diagnoses on or after January was employed by an employer that
§ 30.214(a) of this subpart) who, as a
1, 1993, beryllium sensitivity (as would have to be designated by DOE as
DOE employee or DOE contractor
established in accordance with an atomic weapons employer under
employee, contracted the specified
paragraph (b) of this section), together section 7384l(4) of the Act to be a
cancer after beginning employment at a
with lung pathology consistent with covered employer, and that the
DOE facility; or
chronic beryllium disease, including the employer has not been so designated,
(2) Is a member of the Special
following: OWCP will deny the claim on the
Exposure Cohort (as described in
(i) A lung biopsy showing granulomas ground that the employer is not a
§ 30.214(a) of this subpart) who, as an
or a lymphocytic process consistent covered atomic weapons employer.
atomic weapons employee, contracted (d) Records from the following
with chronic beryllium disease; the specified cancer after beginning
(ii) A computerized axial tomography sources may be considered as evidence
employment at an atomic weapons for purposes of establishing
scan showing changes consistent with
employer facility (as defined in employment or presence at a covered
chronic beryllium disease; or
§ 30.5(e)); or facility:
(iii) Pulmonary function or exercise
(b) The employee has been diagnosed (1) Records or documents created by
testing showing pulmonary deficits
with cancer; and any Federal government agency
consistent with chronic beryllium
(1)(i) Is/was a DOE employee who (including verified information
disease.
contracted that cancer after beginning submitted for security clearance), any
(2) For diagnoses before January 1,
employment at a DOE facility; or tribal government, or any State, county,
1993, the presence of the following:
(i) Occupational or environmental (ii) Is/was a DOE contractor employee city or local government office, agency,
history, or epidemiologic evidence of who contracted that cancer after department, board or other entity, or
beryllium exposure; and beginning employment at a DOE facility; other public agency or office.
(ii) Any three of the following criteria: or (2) Records or documents created as a
(A) Characteristic chest radiographic (iii) Is/was an atomic weapons byproduct of any regularly conducted
(or computed tomography (CT)) employee who contracted that cancer business activity or by an entity that
abnormalities. after beginning employment at an acted as a contractor or subcontractor to
(B) Restrictive or obstructive lung atomic weapons employer facility; and the DOE.
physiology testing or diffusing lung (2) The cancer was at least as likely
as not related to the employment at the § 30.213 How does a claimant establish
capacity defect.
DOE facility or atomic weapons that the cancer was at least as likely as not
(C) Lung pathology consistent with related to the employment at the DOE
chronic beryllium disease. employer facility; or
facility or the atomic weapons employer
(D) Clinical course consistent with a (c) The employee has been diagnosed
facility?
chronic respiratory disorder. with an illness or disease that arose as
a consequence of the accepted cancer. HHS, with the advice of the Advisory
(E) Immunologic tests showing
Board on Radiation and Worker Health,
beryllium sensitivity (skin patch test or
§ 30.211 How does a claimant establish has issued guidelines for making the
beryllium blood test preferred). that the employee has or had contracted determination whether cancer was at
(d) An injury, illness, impairment or cancer? least as likely as not related to the
disability sustained as a consequence of
A claimant establishes that the employment at the DOE facility or the
beryllium sensitivity or established
employee has or had contracted cancer atomic weapons employer facility at 42
chronic beryllium disease must be
with medical evidence that sets forth CFR part 81. Claimants should consult
established with a fully rationalized
the diagnosis of cancer and the date on those guidelines for information
medical report by a physician that
which that diagnosis was made. regarding the type of evidence that will
shows the relationship between the
be considered by OWCP, in addition to
injury, illness, impairment or disability § 30.212 How does a claimant establish the employee’s radiation dose
and the beryllium sensitivity or that the employee contracted cancer after
beginning employment at a DOE facility or
reconstruction that will be provided by
established chronic beryllium disease.
an atomic weapons employer facility? HHS, in making this determination.
Neither the fact that the injury, illness,
impairment or disability manifests itself (a) Proof of employment by the DOE § 30.214 How does a claimant establish
after a diagnosis of beryllium sensitivity or a DOE contractor at a DOE facility, or that the employee is a member of the
or established chronic beryllium by an atomic weapons employer at an Special Exposure Cohort?
disease, nor the belief of the claimant atomic weapons employer facility, may (a) For purposes of establishing
that the injury, illness, impairment or be made by the submission of any eligibility as a member of the Special
disability was caused by the beryllium trustworthy records that, on their face or Exposure Cohort (SEC) under
§ 30.210(a), the employee must have department, board or other entity, or weapon may be made by the submission
been a DOE employee, a DOE contractor other public agency or office. of any trustworthy records that, on their
employee, or an atomic weapons (2) Records or documents created as a face or in conjunction with other such
employee who meets any of the byproduct of any regularly conducted records, establish that the employee was
following requirements: business activity or by an entity that so employed and present at these sites
(1) The employee was so employed acted as a contractor or subcontractor to and the time period(s) of such
for a number of workdays aggregating at the DOE. employment and presence.
least 250 workdays before February 1, (b) If the evidence shows that
1992, at a gaseous diffusion plant § 30.215 How does a claimant establish exposure occurred while the employee
located in Paducah, Kentucky; that the employee has been diagnosed with
cancer or has sustained a consequential
was employed and present at a facility
Portsmouth, Ohio; or Oak Ridge, injury, illness or disease? during a time frame that is outside the
Tennessee; and during such relevant time frame indicated for that
employment: (a) Evidence that the employee
facility by DOE, OWCP may request that
(i) Was monitored through the use of contracted a specified cancer (in the
DOE provide additional information on
dosimetry badges for exposure at the case of SEC members) or other cancer
the facility. OWCP will determine
plant of the external parts of the should include a written medical
whether the evidence of record supports
employee’s body to radiation; or document that contains an explicit
enlarging the relevant time frame for
(ii) Worked in a job that had statement of diagnosis and the date on
that facility.
exposures comparable to a job that is or which that diagnosis was first made.
(c) Records from the following sources
was monitored through the use of (b) An injury, illness, impairment or
may be considered as evidence for
dosimetry badges. disability sustained as a consequence of
purposes of establishing proof of
(2) The employee was so employed a diagnosed cancer covered by the
employment or presence at a covered
before January 1, 1974, by DOE or a DOE provisions of § 30.210(a) and (b) must be
facility:
contractor or subcontractor on Amchitka established with a fully rationalized
(1) Records or documents created by
Island, Alaska, and was exposed to medical report by a physician that
any Federal government agency
ionizing radiation in the performance of shows the relationship between the
(including verified information
duty related to the Long Shot, Milrow, injury, illness, impairment or disability
submitted for security clearance), any
or Cannikin underground nuclear tests. and the covered cancer. Neither the fact
tribal government, or any State, county,
(3) The employee is a member of a that the injury, illness, impairment or
city or local government office, agency,
group or class of employees disability manifests itself after a
department, board or other entity, or
subsequently designated as additional diagnosis of a covered cancer, nor the
other public agency or office.
members of the SEC by HHS. belief of the claimant that the injury, (2) Records or documents created as a
(b) For purposes of satisfying the 250 illness, impairment or disability was byproduct of any regularly conducted
workday requirement of paragraph (a)(1) caused by the covered cancer is business activity or by an entity that
of this section, the claimant may sufficient in itself to prove a causal acted as a contractor or subcontractor to
aggregate the days of service at more relationship. the DOE.
than one gaseous diffusion plant. (d) For purposes of satisfying the 250
(c) Proof of employment by the DOE Eligibility Criteria for Claims Relating
to Chronic Silicosis workday requirement of § 30.220(a), the
or a DOE contractor, or an atomic
claimant may aggregate the days of
weapons employer, for the requisite § 30.220 What are the criteria for eligibility service at more than one qualifying site.
time periods set forth in paragraph (a) for benefits relating to chronic silicosis?
of this section, may be made by the To establish eligibility for benefits for § 30.222 How does a claimant establish
submission of any trustworthy records chronic silicosis, an employee or his or that the employee has been diagnosed with
that, on their face or in conjunction with her survivor must show that: chronic silicosis or has sustained a
other such records, establish that the consequential injury, illness or disease?
(a) The employee is a DOE employee,
employee was so employed and the time or a DOE contractor employee, who was (a) A written diagnosis of the
period(s) of such employment. If the present for a number of workdays employee’s chronic silicosis (as defined
evidence shows that exposure occurred aggregating at least 250 workdays during in § 30.5(j)) shall be made by a medical
while the employee was employed by the mining of tunnels at a DOE facility doctor and accompanied by one of the
an employer that would have to be (as defined in § 30.5(v)) located in following:
designated by DOE as an atomic Nevada or Alaska for tests or (1) A chest radiograph, interpreted by
weapons employer under section experiments related to an atomic an individual certified by the National
7384l(4) of the Act to be a covered weapon, and has been diagnosed with Institute for Occupational Safety and
employer, and that the employer has not chronic silicosis (as defined in § 30.5(j)); Health as a B reader, classifying the
been so designated, OWCP will deny the or existence of pneumoconioses of
claim on the ground that the employer (b) The employee has been diagnosed category 1/0 or higher; or
is not a covered atomic weapons with an illness or disease that arose as (2) Results from a computer assisted
employer. a consequence of the accepted chronic tomograph or other imaging technique
(d) Records from the following silicosis. that are consistent with silicosis; or
sources may be considered as evidence (3) Lung biopsy findings consistent
for purposes of establishing § 30.221 How does a claimant prove with silicosis.
employment or presence at a covered exposure to silica in the performance of (b) An injury, illness, impairment or
facility: duty? disability sustained as a consequence of
(1) Records or documents created by (a) Proof of the employee’s accepted chronic silicosis covered by
any Federal government agency employment and presence for the the provisions of § 30.220(a) must be
(including verified information requisite days during the mining of established with a fully rationalized
submitted for security clearance), any tunnels at a DOE facility located in medical report by a physician that
tribal government, or any State, county, Nevada or Alaska for tests or shows the relationship between the
city or local government office, agency, experiments related to an atomic injury, illness, impairment or disability
and the accepted chronic silicosis. Subpart D—Adjudicatory Process Hearings and Final Decisions on Claims
Neither the fact that the injury, illness,
§ 30.300 What process will OWCP use to § 30.310 What must the claimant do if he
impairment or disability manifests itself
decide claims and to provide for or she objects to the recommended
after a diagnosis of accepted chronic administrative review of those decisions? decision or wants to request a hearing?
silicosis, nor the belief of the claimant
OWCP district offices will issue (a) Within 60 days from the date the
that the injury, illness, impairment or
recommended decisions with respect to recommended decision is issued, the
disability was caused by the accepted claims. All recommended decisions,
chronic silicosis, is sufficient in itself to claimant must state, in writing, whether
including those granting and denying he or she objects to any of the findings
prove a causal relationship. benefits under the Act, will be of fact and/or conclusions of law
Eligibility Criteria for Certain Uranium forwarded to the Final Adjudication contained in such decision, including
Employees Branch (FAB). Claimants will be given HHS’s reconstruction of the radiation
an opportunity to object to all or part of dose to which the employee was
§ 30.225 What are the criteria for eligibility the recommended decision before the exposed (if any), and whether a hearing
for benefits for certain uranium employees? FAB. The FAB will consider any is desired. This written statement
In order to be eligible for benefits objections filed by a claimant and should be filed with the FAB at the
under this section, the claimant must conduct a hearing, if requested to do so address indicated in the notice
by the claimant, before issuing a final accompanying the recommended
establish the criteria set forth in either
decision on the claim. decision.
paragraph (a) or paragraph (b) of this
section: Recommended Decisions on Claims (b) For purposes of determining
(a) The Attorney General has § 30.305 How does OWCP determine whether the written statement referred
determined that the claimant is a entitlement to EEOICPA compensation? to in paragraph (a) of this section has
covered uranium employee who is (a) In reaching a recommended been timely filed with the FAB, the
entitled to payment of $100,000 as decision with respect to EEOICPA statement will be considered to be
compensation due under section 5 of compensation, OWCP considers the ‘‘filed’’ on the date that the claimant
the RECA for a claim made under that claim presented by the claimant, the mails it to the FAB, as determined by
statute (there is, however, no factual and medical evidence of record, postmark, or on the date that such
requirement that the claimant or the dose reconstruction report written statement is actually received by
surviving eligible beneficiary has calculated by HHS (if any), any report the FAB, whichever is the earliest
actually received payment pursuant to submitted by DOE and the results of determinable date.
the RECA). If a deceased employee’s such investigation as OWCP may deem § 30.311 What happens if the claimant
survivor has been determined to be necessary. does not object to the recommended
entitled to such an award, his or her (b) The OWCP claims staff applies the decision or request a hearing within 60
survivor(s), if any, will only be entitled law, the regulations and its procedures days?
to EEOICPA compensation in to the facts as reported or obtained upon
investigation. (a) If the claimant does not file a
accordance with section 7384u(e) of the written statement that objects to the
Act. § 30.306 What does the recommended recommended decision and/or requests
(b) The covered uranium employee decision contain? a hearing within the period of time
has been diagnosed with an illness or The recommended decision shall allotted in § 30.310, the FAB may issue
disease that arose as a consequence of contain findings of fact and conclusions a final decision accepting the
the medical condition for which he or of law. The recommended decision may recommendation of the district office as
she was determined to be entitled to accept or reject the claim in its entirety, provided in § 30.316.
payment of $100,000 as compensation or it may accept or reject a portion of the (b) If the recommended decision
due under section 5 of the RECA. claim presented. It is accompanied by a accepts all or part of a claim for
notice of the claimant’s right to file compensation, the FAB may issue a
§ 30.226 How does a claimant establish objections with, and request a hearing
that a covered uranium employee has final decision at any time after receiving
before, the FAB.
sustained a consequential injury, illness or written notice from the claimant that he
disease? § 30.307 To whom is the recommended or she waives any objection to all or part
decision sent? of the recommended decision.
An injury, illness, impairment or (a) A copy of the recommended
disability sustained as a consequence of § 30.312 What will the FAB do if the
decision will be mailed to the claimant’s claimant objects to the recommended
a medical condition covered by the last known address. However, if the
provisions of § 30.225(a) must be decision but does not request a hearing?
claimant has a designated representative
established with a fully rationalized before OWCP, the copy of the If the claimant files a written
medical report by a physician that recommended decision will be mailed statement that objects to the
shows the relationship between the to the representative. Notification to recommended decision within the
injury, illness, impairment or disability either the claimant or the representative period of time allotted in § 30.310 but
and the accepted medical condition. will be considered notification to both does not request a hearing, the FAB will
Neither the fact that the injury, illness, parties. consider any objections by means of a
impairment or disability manifests itself (b) At the same time it issues a review of the written record. If the
after a diagnosis of a medical condition recommended decision on a claim, the claimant only objects to part of the
covered by the provisions of § 30.225(a), OWCP district office will forward the recommended decision, the FAB may
nor the belief of the claimant that the record of such claim to the FAB. Any issue a final decision accepting the
injury, illness, impairment or disability new evidence submitted to the district remaining part of the recommendation
was caused by such a condition, is office following the issuance of the of the district office without first
sufficient in itself to prove a causal recommended decision will also be reviewing the written record (see
relationship. forwarded to the FAB for consideration. § 30.316).
§ 30.313 How is a review of the written recommended decision, the FAB be accommodated on the same docket,
record conducted? reviewer may issue a final decision no further opportunity for a hearing will
(a) The FAB reviewer will consider accepting the remaining part of the be provided. Instead, the FAB will
the written record forwarded by the recommendation of the district office consider the claimant’s objections by
district office and any additional without first holding a hearing (see means of a review of the written record.
evidence and/or argument submitted by § 30.316). Any objection that is not In the alternative, a teleconference may
the claimant. The reviewer may also presented to the FAB reviewer, be substituted for the hearing at the
conduct whatever investigation is including any objection to HHS’s discretion of the reviewer.
deemed necessary. reconstruction of the radiation dose to (b) Where the claimant is hospitalized
(b) The claimant should submit, with which the employee was exposed (if for a reason which is not elective, or
his or her written statement that objects any), whether or not the pertinent issue where the death of the claimant’s
to the recommended decision, all was previously presented to the district parent, spouse, or child prevents
evidence or argument that he or she office, is deemed waived for all attendance at the hearing, a
wants to present to the reviewer. purposes. postponement may be granted upon
However, evidence or argument may be (c) The hearing is an informal process, proper documentation.
submitted at any time up to the date and the reviewer is not bound by (c) At any time after requesting a
specified by the reviewer for the common law or statutory rules of hearing, the claimant can request a
submission of such evidence or evidence, or by technical or formal rules change to a review of the written record
argument. of procedure. The reviewer may conduct by making a written request to the FAB.
(c) Any objection that is not presented the hearing in such manner as to best Once such a change is made, no further
to the FAB reviewer, including any ascertain the rights of the claimant. opportunity for a hearing will be
objection to HHS’s reconstruction of the During the hearing process, the claimant provided.
radiation dose to which the employee may state his or her arguments and
was exposed (if any), whether or not the § 30.316 How does the FAB issue a final
present new written evidence and/or decision on a claim?
pertinent issue was previously testimony in support of the claim.
presented to the district office, is (d) Testimony at hearings is recorded, (a) If the claimant does not file a
deemed waived for all purposes. then transcribed and placed in the written statement that objects to the
record. Oral testimony shall be made recommended decision and/or requests
§ 30.314 How is a hearing conducted? a hearing within the period of time
under oath.
(a) The FAB reviewer retains (e) The FAB reviewer will furnish a allotted in § 30.310, or if the claimant
complete discretion to set the time and transcript of the hearing to the claimant, waives any objections to all or part of
place of the hearing, including the who has 20 days from the date it is sent the recommended decision, the FAB
amount of time allotted for the hearing, to submit any comments to the may issue a final decision accepting the
considering the issues to be resolved. At reviewer. recommendation of the district office,
the discretion of the reviewer, the (f) The claimant will have 30 days either in whole or in part (see §§ 30.311,
hearing may be conducted by telephone after the hearing is held to submit 30.312 and 30.314(b)).
or teleconference. As part of the hearing additional evidence or argument, unless (b) If the claimant objects to all or part
process, the FAB reviewer will consider the reviewer, in his or her sole of the recommended decision, the FAB
the written record forwarded by the discretion, grants an extension. Only reviewer will issue a final decision on
district office and any additional one such extension may be granted. the claim after either the hearing or the
evidence and/or argument submitted by (g) The reviewer determines the review of the written record, and after
the claimant. The reviewer may also conduct of the hearing and may completing such further development of
conduct whatever investigation is terminate the hearing at any time he or the case as he or she may deem
deemed necessary. she determines that all relevant necessary.
(1) The FAB reviewer will try to set evidence has been obtained, or because (c) Any recommended decision (or
the hearing at a place that is within of misbehavior on the part of the part thereof) that is pending either a
commuting distance of the claimant’s claimant and/or representative at or hearing or a review of the written record
residence, but will not be able to do so near the place of the oral presentation. for more than one year from the date the
in all cases. Therefore, for reasons of FAB received the written statement that
economy, the claimant may be required § 30.315 May a claimant postpone a objected to the recommended decision
to travel a roundtrip distance of up to hearing? and/or requested a hearing shall be
200 miles to attend the hearing. (a) The FAB will entertain any considered a final decision of the FAB
(2) In unusual circumstances, the FAB reasonable request for scheduling the on the one-year anniversary of such
reviewer may set a place for the hearing hearing, but such requests should be date. Any recommended decision
that is more than 200 miles roundtrip made at the time the hearing is described in § 30.311 that is pending at
from the claimant’s residence. However, requested. Scheduling is at the sole the FAB for more than one year from the
in that situation, OWCP will reimburse discretion of the FAB reviewer, and is date that the period of time described in
the claimant for reasonable and not reviewable. Once the hearing is § 30.310 expired shall be considered a
necessary travel expenses incurred to scheduled and appropriate written final decision of the FAB on the one-
attend the hearing if he or she submits notice has been mailed, it cannot be year anniversary of such date.
a written reimbursement request that postponed at the claimant’s request for (d) The decision of the FAB, whether
documents such expenses. any reason except those stated in issued pursuant to paragraph (a), (b) or
(b) Unless otherwise directed in paragraph (b) of this section, unless the (c) of this section, shall be final upon
writing by the claimant, the FAB FAB reviewer can reschedule the the date of issuance of such decision,
reviewer will mail a notice of the time hearing on the same docket (that is, unless a timely request for
and place of the hearing to the claimant during the same hearing trip). When the reconsideration under § 30.319 has been
and any representative at least 30 days request to postpone a scheduled hearing filed.
before the scheduled hearing date. If the does not meet one of the tests of (e) A copy of the final decision of the
claimant only objects to part of the paragraph (b) of this section and cannot FAB will be mailed to the claimant’s
last known address. However, if the (c) If the FAB grants the request for a claim pursuant to paragraphs (a) or (b)
claimant has a designated representative reconsideration, it will consider the of this section, the resulting new
before OWCP, the copy of the final written record of the claim again and recommended decision will be subject
decision will be mailed to the issue a new final decision on the claim. to the adjudicatory process described in
representative. Notification to either the A hearing is not available as part of the this subpart. However, neither the
claimant or the representative will be reconsideration process. If the FAB district office nor the FAB can consider
considered notification to both parties. denies the request for reconsideration, any objection concerning the Director’s
the decision in question shall be decision to reopen a claim under this
§ 30.317 Can the FAB request a further considered ‘‘final’’ on the date the section.
response from the claimant or remand a
claim to the district office?
request is denied.
(d) A claimant may not seek judicial Subpart E—Medical and Related
At any time before the issuance of its review of a decision on his or her claim Benefits
final decision, the FAB may request that under the EEOICPA until OWCP’s
the claimant submit additional evidence Medical Treatment and Related Issues
decision on the claim is final pursuant
or argument, or remand the claim to the to § 30.316(d). § 30.400 What are the basic rules for
district office for further development obtaining medical care?
without issuing a final decision, Reopening Claims (a) A covered employee who fits into
whether or not requested to do so by the § 30.320 Can a claim be reopened after the at least one of the compensable claim
claimant. FAB has issued a final decision? categories is entitled to receive all
(a) At any time after the FAB has medical services, appliances or supplies
§ 30.318 Can the FAB consider an
objection to a determination by HHS with issued a final decision pursuant to that a qualified physician prescribes or
respect to an employee’s dose § 30.316, and without regard to whether recommends and that OWCP considers
reconstruction? new evidence or information is necessary to treat his or her
presented or obtained, the Director for occupational illness, retroactive to the
(a) If the claimant objects to HHS’s
Energy Employees Occupational Illness date the employee filed a claim for
reconstruction of the radiation dose to
Compensation may reopen a claim and benefits under the EEOICPA (see
which the employee was exposed, the
return it to the district office for such § 30.100(c)). The employee need not be
FAB will evaluate the factual findings
further development as may be disabled to receive such treatment.
upon which HHS based its dose
necessary, to be followed by a new When a survivor receives payment,
reconstruction. If these factual findings
recommended decision. The Director OWCP will pay for such treatment if the
do not appear to be supported by
may also vacate any other type of covered employee died before the claim
substantial evidence, the claim will be
decision issued by the FAB. was paid. If there is any doubt as to
remanded to the district office for
(b) At any time after the FAB has whether a specific service, appliance or
referral to HHS for further
issued a final decision pursuant to supply is necessary to treat the
consideration.
§ 30.316, a claimant may file a written occupational illness, the employee
(b) The methodology used by HHS in should consult OWCP prior to obtaining
arriving at reasonable estimates of the request that the Director for Energy
Employees Occupational Illness it.
radiation doses received by an (b) Any qualified physician or
employee, established by regulations Compensation reopen his or her claim,
provided that the claimant also submits qualified hospital may provide such
issued by HHS at 42 CFR part 82, is services, appliances and supplies. A
binding on the FAB. The FAB reviewer new evidence of either covered
employment or exposure to radiation, qualified provider of medical support
may determine, however, that services may also furnish appropriate
arguments concerning the application of beryllium or silica, or identifies either a
change in the probability of causation services, appliances, and supplies.
that methodology should be considered OWCP may apply a test of cost-
by HHS and may remand the case to the guidelines, a change in the dose
reconstruction methods or an addition effectiveness to appliances and
district office for referral to HHS for supplies. With respect to prescribed
such consideration. of a class of employees to the Special
Exposure Cohort. medications, OWCP may require the use
§ 30.319 May a claimant request (1) If the Director concludes that the of generic equivalents where they are
reconsideration of a final decision of the evidence submitted or matter identified available.
FAB? in support of the claimant’s request is § 30.401 What are the special rules for the
(a) A claimant may request material to the claim, the Director will services of chiropractors?
reconsideration of a final decision of the reopen the claim and return it to the (a) The services of chiropractors that
FAB by filing a written request with the district office for such further may be reimbursed by OWCP are
FAB within 30 days from the date of development as may be necessary, to be limited to treatment to correct a spinal
issuance of such decision. If a timely followed by a new recommended subluxation. The costs of physical and
request for reconsideration is made, the decision. related laboratory tests performed by or
decision in question will no longer be (2) New evidence of a medical required by a chiropractor to diagnose
considered ‘‘final’’ under § 30.316(d). condition described in subpart C of such a subluxation are also payable.
(b) For purposes of determining these regulations is not sufficient to (b) A diagnosis of spinal subluxation
whether the written request referred to support a written request to reopen a as demonstrated by x-ray to exist must
in paragraph (a) of this section has been claim for such a condition under appear in the chiropractor’s report
timely filed with the FAB, the request paragraph (b) of this section. before OWCP can consider payment of
will be considered to be ‘‘filed’’ on the (c) The decision whether or not to a chiropractor’s bill.
date that the claimant mails it to the reopen a claim under this section is (c) A chiropractor may interpret his or
FAB, as determined by postmark, or on solely within the discretion of the her x-rays to the same extent as any
the date that such written request is Director for Energy Employees other physician. To be given any weight,
actually received by the FAB, whichever Occupational Illness Compensation and the medical report must state that x-rays
is the earliest determinable date. is not reviewable. If the Director reopens support the finding of spinal
subluxation. OWCP will not necessarily (c) The standard form designated for § 30.411 What happens if the opinion of
require submission of the x-ray, or a medical travel refund requests is Form the physician selected by OWCP differs
report of the x-ray, but the report must OWCP–957 and should be used to seek from the opinion of the physician selected
be available for submission on request. by the employee?
reimbursement under this section. This
(d) A chiropractor may also provide form can be obtained from OWCP. (a) If one medical opinion holds more
services in the nature of physical probative value, OWCP will base its
therapy under the direction of a § 30.405 After selecting a treating determination of entitlement on that
qualified physician. physician, may an employee choose to be medical conclusion. A difference in
treated by another physician instead? medical opinion sufficient to be
§ 30.402 What are the special rules for the considered a conflict occurs when two
services of clinical psychologists? (a) OWCP will provide the employee
reports of virtually equal weight and
with an opportunity to designate a
A clinical psychologist may serve as rationale reach opposing conclusions.
a physician within the scope of his or treating physician when it accepts the (b) If a conflict exists between the
her practice as defined by State law. claim. When the physician originally medical opinion of the employee’s
Therefore, a clinical psychologist may selected to provide treatment for an physician and the medical opinion of
not serve as a physician for conditions occupational illness refers the employee either a second opinion physician or an
that include a physical component to a specialist for further medical care, OWCP medical adviser or consultant,
unless the applicable State law allows the employee need not consult OWCP OWCP shall appoint a third physician to
clinical psychologists to treat physical for approval. In all other instances, make an examination. This is called a
conditions. A clinical psychologist may however, the employee must submit a referee examination. OWCP will select a
also perform testing, evaluation, and written request to OWCP with his or her physician who is qualified in the
other services under the direction of a reasons for desiring a change of appropriate specialty and who has had
qualified physician. physician. no prior connection with the case. Also,
(b) OWCP will approve the request if a case file may be sent for referee
§ 30.403 Will OWCP pay for the services of medical review where there is no need
an attendant? it determines that the reasons submitted
are sufficient. Requests that are often for an actual examination, or where the
OWCP will authorize payment for employee is deceased.
personal care services under section approved include those for transfer of
(c) If the initial referee examination is
7384t of the Act, whether or not such care from a general practitioner to a
disrupted by someone accompanying
care includes medical services, so long physician who specializes in treating the employee, OWCP will schedule
as the personal care services have been the occupational illnesses covered by another examination with a different
determined to be medically necessary the EEOICPA, or the need for a new qualified physician. The employee will
and are provided by a home health aide, physician when an employee has not be entitled to have anyone else
licensed practical nurse, or similarly moved. present at the subsequent referee
trained individual. examination unless OWCP decides that
§ 30.406 Are there any exceptions to these
§ 30.404 Will OWCP pay for transportation procedures for obtaining medical care? exceptional circumstances exist. For
to obtain medical treatment? example, where a hearing-impaired
In cases involving emergencies or employee needs an interpreter, the
(a) The employee is entitled to unusual circumstances, OWCP may presence of an interpreter would be
reimbursement of reasonable and authorize treatment in a manner other allowed.
necessary expenses, including than as stated in this subpart.
transportation needed to obtain § 30.412 Who pays for second opinion and
authorized medical services, appliances Directed Medical Examinations referee examinations?
or supplies. To determine what is a OWCP will pay second opinion and
reasonable distance to travel, OWCP § 30.410 Can OWCP require an employee
to be examined by another physician?
referee medical specialists directly.
will consider the availability of services, OWCP will also reimburse the employee
the employee’s condition, and the (a) OWCP sometimes needs a second all necessary and reasonable expenses
means of transportation. Generally, a opinion from a medical specialist. The incident to such an examination,
roundtrip distance of up to 200 miles is employee must submit to examination including transportation costs and
considered a reasonable distance to by a qualified physician as often and at actual wages lost for the time needed to
travel. such times and places as OWCP submit to an examination required by
(b) If travel of more than 200 miles is considers reasonably necessary. Also, OWCP.
contemplated, or air transportation or OWCP may send a case file for second
overnight accommodations will be Medical Reports
opinion review where an actual
needed, the employee must submit a examination is not needed, or where the § 30.415 What are the requirements for
written request to OWCP for prior employee is deceased. medical reports?
approval with information describing In general, medical reports from the
the circumstances and necessity for (b) If the initial examination is
disrupted by someone accompanying employee’s attending physician should
such travel expenses. OWCP will include the following:
approve the request if it determines that the employee, OWCP will schedule
(a) Dates of examination and
the travel expenses are reasonable and another examination with a different
treatment;
necessary. Requests for travel expenses qualified physician. The employee will (b) History given by the employee;
that are often approved include those not be entitled to have anyone else (c) Physical findings;
resulting from referrals to a specialist for present at the subsequent examination (d) Results of diagnostic tests;
further medical treatment, and those unless OWCP decides that exceptional (e) Diagnosis;
involving air transportation of an circumstances exist. For example, where (f) Course of treatment;
employee who lives in a remote a hearing-impaired employee needs an (g) A description of any other
geographical area with limited local interpreter, the presence of an conditions found due to the claimed
medical services. interpreter would be allowed. occupational illness;
(h) The treatment given or exceeds the maximum allowable charge (b) If there is no surviving spouse, the
recommended for the claimed set by the OWCP fee schedule. compensation shall be paid in equal
occupational illness; and (b) If this happens, OWCP shall advise shares to all children of the deceased
(i) All other material findings. the employee of the maximum covered employee.
allowable charge for the service in (c) If there is no surviving spouse and
§ 30.416 How and when should medical question and of his or her responsibility no children, the compensation shall be
reports be submitted?
to ask the provider to refund to the paid in equal shares to the parents of the
(a) The initial medical report (and any employee, or credit to the employee’s deceased covered employee.
subsequent reports) should be made in account, the amount he or she paid that (d) If there is no surviving spouse, no
narrative form on the physician’s exceeds the maximum allowable charge. children and no parents, the
letterhead stationery. The physician The provider may request compensation shall be paid in equal
should use the EE–7 as a guide for the reconsideration of the fee determination shares to all grandchildren of the
preparation of his or her initial medical as set forth in § 30.712. deceased covered employee.
report. The report should bear the (c) If the provider does not refund to (e) If there is no surviving spouse, no
physician’s signature or signature the employee or credit to his or her children, no parents and no
stamp. OWCP may require an original account the amount of money paid in grandchildren, the compensation shall
signature on the report. excess of the charge that OWCP allows, be paid in equal shares to the
(b) The report shall be submitted the employee should submit grandparents of the deceased covered
directly to OWCP as soon as possible documentation of the attempt to obtain employee.
after medical examination or treatment such refund or credit to OWCP. OWCP (f) Notwithstanding the other
is received, either by the employee or may authorize reasonable paragraphs of this section, if there is a
the physician. reimbursement to the employee after surviving spouse and at least one child
reviewing the facts and circumstances of of the deceased covered employee who
§ 30.417 What additional medical
information may OWCP require to support the case. is a minor at the time of payment and
continuing payment of benefits? who is not a recognized natural child or
Subpart F—Survivors; Payments and adopted child of such surviving spouse,
In all cases requiring hospital Offsets; Overpayments
treatment or prolonged care, OWCP will half of the compensation shall be paid
request detailed narrative reports from to the surviving spouse, and the other
Survivors
the attending physician at periodic half of the compensation shall be paid
intervals. The physician will be asked to § 30.500 What special statutory definitions in equal shares to each child of the
describe continuing medical treatment
apply to survivors under the EEOICPA? deceased covered employee who is a
for the occupational illness accepted by For the purposes of paying minor at the time of payment.
OWCP, a prognosis, and the physician’s compensation to survivors, EEOICPA
§ 30.502 When is entitlement for survivors
opinion as to the continuing causal applies the following definitions: determined for purposes of the EEOICPA?
(a) Surviving spouse means the wife
relationship between the need for Entitlement to any lump-sum
or husband of a deceased covered
additional treatment and the covered payment for survivors under the
employee who was married to that
occupational illness. EEOICPA will be determined as of the
individual for at least one year
Medical Bills immediately before the death of that time OWCP makes such a payment.
individual. Payment of Claims and Offset for
§ 30.420 How are medical bills submitted? (b) Child or children includes a Certain Payments
Usually, medical providers submit recognized natural child of a deceased
bills directly for processing. The rules covered employee, a stepchild who § 30.505 What procedures will OWCP
for submitting and processing bills are lived with that individual in a regular follow before it pays any compensation?
stated in subpart H of this part. An parent-child relationship, and an (a) In cases involving the approval of
employee claiming reimbursement of adopted child of that individual. a claim, OWCP shall take all necessary
medical expenses should submit an (c) Parent includes fathers and steps to determine the amount of any
itemized bill as described in § 30.702. mothers of a deceased covered offset of EEOICPA benefits, and to verify
employee through adoption. the identity of the covered employee or
§ 30.421 What are the time frames for (d) Grandchild means a child of a the eligible surviving beneficiary or
submitting bills?
child of a deceased covered employee. beneficiaries. To perform these tasks,
To be considered for payment, bills (e) Grandparent means a parent of a OWCP may conduct any investigation,
must be submitted by the end of the parent of a deceased covered employee. require any claimant to provide or
calendar year after the year when the execute any affidavit, record or
expense was incurred, or by the end of § 30.501 What order of precedence will
OWCP use to determine which survivors document, or authorize the release of
the calendar year after the year when any information as OWCP deems
are entitled to receive compensation under
OWCP first accepted the claim as necessary to ensure that the
the EEOICPA?
compensable, whichever is later. compensation payment is made in the
If OWCP determines that a survivor or
§ 30.422 If OWCP reimburses an employee survivors are entitled to receive correct amount and to the correct person
only partially for a medical expense, must compensation under the EEOICPA or persons. OWCP shall also require
the provider refund the balance of the because a covered employee who would every claimant to execute and provide
amount paid to the employee? otherwise have been entitled to benefits any necessary affidavit described in
(a) The OWCP fee schedule sets is deceased, that compensation will be § 30.620 of these regulations. Should a
maximum limits on the amounts disbursed as follows, subject to the claimant fail or refuse to execute an
payable for many services. The qualifications set forth in § 30.5(ee)(2) of affidavit or release of information, or fail
employee may be only partially these regulations: or refuse to provide a requested record
reimbursed for medical expenses (a) If there is a surviving spouse, the or document or to provide access to
because the amount he or she paid to compensation shall be paid to that information, such failure or refusal may
the medical provider for a service individual. be deemed to be a rejection of the
payment, unless the claimant does not provided on or after the date the who is entitled to the compensation
have and cannot obtain the legal covered employee filed a claim for payment, or to a share of the
authority to provide, release, or EEOICPA benefits that were paid for compensation payment, and has
authorize access to the required under the final judgment or settlement. determined the correct amount of the
information, records, or documents. In the event that these payments include payment or the share of the payment,
(b) To determine the amount of any a ‘‘structured’’ settlement (where a party OWCP shall notify every claimant, or
offset, OWCP shall require the covered makes an initial cash payment and also every person with power of attorney for
employee or each eligible surviving arranges, usually through the purchase a claimant, and require such person or
beneficiary filing a claim under this part of an annuity, for payments in the persons to sign a Form EE–20 indicating
to execute and provide an affidavit (or future), OWCP will usually accept the acceptance of the payment. Such form
declaration made under oath on Form cost of the annuity to the purchaser as shall be signed and returned to OWCP
EE–1 or EE–2) reporting the amount of the dollar amount of the right to receive within sixty days of the date of the form
any payment made pursuant to a final the future payments. or within such greater period as may be
judgment or settlement in litigation (ii) OWCP will then make certain allowed by OWCP. Failure to sign and
(other than litigation for workers’ deductions from the above dollar return the form within the required time
compensation) seeking damages for any amount to arrive at the dollar amount to may be deemed to be a rejection of the
occupational illnesses covered by the be subtracted from any unpaid payment. Signing and returning the
EEOICPA. Even if someone other than EEOICPA benefits. Allowable form within the required time shall
the covered employee receives a deductions consist of attorney’s fees constitute acceptance of the payment,
payment pursuant to a final judgment or OWCP deems reasonable, and itemized unless the individual who has signed
settlement in litigation seeking damages costs of suit (out-of-pocket expenditures the form dies prior to receiving the
for any occupational illness covered by not part of the normal overhead of a law payment, in which case the person who
the EEOICPA (e.g., the surviving spouse firm’s operation like filing fees, travel then receives the payment shall return
of a deceased covered employee), the expenses, witness fees, and court it to OWCP for redetermination of the
receipt of any such payment must be reporter costs for transcripts) provided correct disbursement of the payment.
reported since it constitutes a payment that adequate supporting documentation No payment shall be made until OWCP
solely for an occupational illness is submitted to OWCP. has made a determination concerning
covered by the EEOICPA. (iii) The EEOICPA benefits that will the survivors related to a respective
(1) For the purposes of this paragraph be reduced will consist of any unpaid claim for benefits.
only, ‘‘litigation seeking damages’’ refers lump-sum payments and medical
to any request or demand for money by benefits payable in the future. In those § 30.506 To whom and in what manner will
the covered employee, or by another cases where it has not yet paid OWCP pay compensation?
individual if the covered employee is EEOICPA benefits, OWCP will reduce (a) Except with respect to claims
deceased, made or sought in a civil such benefits on a dollar-for-dollar related to beryllium sensitivity,
action or in anticipation of the filing of basis, beginning with the lump-sum payment shall be made to the covered
a civil action, solely for any payment first. If the amount to be employee, or to the person with power
occupational illness covered by the subtracted exceeds the lump-sum of attorney for the covered employee,
EEOICPA. This term does not also payment, OWCP will reduce ongoing unless the covered employee is
include any request or demand for EEOICPA medical benefits payable in deceased at the time of the payment. In
money made or sought pursuant to a life the future by the amount of any all cases involving a deceased covered
insurance or health insurance contract, remaining surplus. This means that employee, payment shall be made to the
or any request or demand for money OWCP will apply the amount it would eligible surviving beneficiary or
made or sought by an individual other otherwise pay to reimburse the covered beneficiaries, or to every person with
than the covered employee in that employee for any ongoing EEOICPA power of attorney for an eligible
individual’s own right (e.g., a spouse’s medical treatment to the remaining surviving beneficiary, in accordance
claim for loss of consortium), or any surplus until it is absorbed. In addition with the terms and conditions specified
request or demand for money made or to this reduction of ongoing EEOICPA in sections 7384s(e) and 7384u(e) of the
sought by the covered employee or the medical benefits, OWCP will not be the EEOICPA.
estate of a deceased covered employee first payer for any medical expenses that (b) Compensation for any
not for any occupational illness covered are the responsibility of another party consequential illness or disease is
by the EEOICPA (e.g., a covered (who will instead be the first payer) as limited to payment of medical benefits
employee’s claim for damage to real or part of a final judgment or settlement in for that illness or disease.
personal property). litigation seeking damages. (c) Rejected compensation payments,
(2) If a payment has been made (3) The above reduction of EEOICPA or shares of compensation payments,
pursuant to a final judgment or benefits will not occur if an EEOICPA shall not be distributed to other eligible
settlement in litigation seeking damages, claimant has had his or her award under surviving beneficiaries, but shall be
OWCP shall subtract a portion of the section 5 of the RECA reduced by the returned to the Fund.
dollar amount of such payment from the full amount of a payment made (d) No covered employee may receive
benefit payments to be made under the pursuant to a final judgment or more than one lump-sum payment
EEOICPA. OWCP will calculate the settlement in litigation seeking damages. under these regulations for any
amount to be subtracted from the benefit In that case, OWCP will not reduce occupational illnesses he or she
payments in the following manner: EEOICPA benefits by the same amount contracted. However, any individual,
(i) OWCP will first determine the (but will reduce EEOICPA benefits by including a covered employee who has
value of the payment made pursuant to the amount of any surplus final received a lump-sum payment for his or
either a final judgment or settlement in judgment or settlement payment that her own occupational illness, may
litigation seeking damages by adding the remains). receive one lump-sum payment for each
dollar amount of any monetary damages (c) Except as provided in § 30.506(b) deceased covered employee for whom
(other than contingent awards) and any of these regulations, when OWCP has he or she qualifies as an eligible
medical expenses for treatment verified the identity of every claimant surviving beneficiary.
§ 30.507 What compensation will be § 30.512 How does OWCP determine that a one representative has been properly
provided to covered employees who only beneficiary owes a debt as the result of the appointed, OWCP will not recognize
establish beryllium sensitivity? creation of an overpayment? another individual as a representative
The establishment of beryllium OWCP will notify the beneficiary of until the claimant withdraws the
the existence and amount of any authorization of the first individual. In
sensitivity does not entitle a covered
overpayment, and request the addition, OWCP will recognize only
employee, or the eligible surviving
beneficiary to voluntarily return the certain types of individuals (see
beneficiary or beneficiaries of a
overpaid amount or provide OWCP with § 30.601).
deceased covered employee, to any
evidence and/or argument contesting (c) A properly appointed
lump-sum payment provided for under
the existence or amount of an representative who is recognized by
the EEOICPA. Instead, a covered overpayment. Within 30 days of the OWCP may make a request or give
employee whose sole occupational issuance of such notification, a direction to OWCP regarding the claims
illness is beryllium sensitivity shall beneficiary who believes that OWCP process, including a hearing. This
receive beryllium sensitivity made a mistake in determining the fact authority includes presenting or
monitoring, as well as medical benefits or amount of an overpayment may eliciting evidence, making arguments on
for the treatment of this occupational submit written comments and facts or the law, and obtaining
illness in accordance with § 30.400 of documentation in support of his or her information from the case file, to the
these regulations. position contesting the existence or same extent as the claimant.
§ 30.508 What is beryllium sensitivity amount of such overpayment to OWCP. (1) Any notice requirement contained
monitoring? After considering any written in this part or the EEOICPA is fully
documentation or argument submitted satisfied if served on the representative,
Beryllium sensitivity monitoring shall to OWCP within the 30-day period, and has the same force and effect as if
consist of medical examinations to OWCP will issue a determination on the sent to the claimant.
confirm and monitor the extent and question of whether a debt is owed to (2) A representative does not have
nature of a covered employee’s OWCP. If OWCP determines that a debt authority to sign the Form EE–20,
beryllium sensitivity. Monitoring shall is owed by the beneficiary, it will described in § 30.505(c) of these
also include regular medical forward a copy of that determination to regulations, which indicates acceptance
examinations, with diagnostic testing, to the beneficiary and advise him or her of a compensation payment.
determine if the covered employee has that unless the debt is voluntarily repaid
established chronic beryllium disease. it will pursue collection of the § 30.601 Who may serve as a
representative?
Overpayments overpayment through DOL’s debt
collection procedures found at 29 CFR A claimant may authorize any
part 20. individual to represent him or her in
§ 30.510 How does OWCP notify an
individual of a payment made on a claim? regard to a claim under the EEOICPA,
§ 30.513 How are overpayments collected? unless that individual’s service as a
(a) In addition to providing narrative The overpaid individual shall refund representative would violate any
descriptions to recipients of benefits to OWCP the amount of the applicable provision of law (such as 18
paid or payable, OWCP includes on overpayment as soon as possible. The U.S.C. 205 and 208). A federal employee
each check a clear indication of the overpayment is subject to the provisions may act as a representative only:
reason the payment is being made. For of the Federal Claims Collection Act of (a) On behalf of immediate family
payments sent by electronic funds 1966, as amended (31 U.S.C. 3701 et members, defined as a spouse, children,
transfer, a notification of the date and seq.), and may be reported to the parents, and siblings of the
amount of payment appears on the Internal Revenue Service as income. If representative, provided no fee or
statement from the recipient’s financial the individual fails to make such gratuity is charged; or
institution. refund, OWCP may recover the same (b) While acting as a union
(b) By these means, OWCP puts the through any available means, including representative, defined as any officially
recipient on notice that a payment was offset of salary, annuity benefits, or sanctioned union official, and no fee or
made and the amount of the payment. other Federal payments, including tax gratuity is charged.
If the amount received differs from the refunds as authorized by the Tax Refund § 30.602 Who is responsible for paying the
amount indicated on the written notice Offset Program, or referral of the debt to representative’s fee?
or bank statement, the recipient is a collection agency or to the Department A representative may charge the
responsible for notifying OWCP of the of Justice. claimant a fee for services and for costs
difference. Absent affirmative evidence associated with the representation
to the contrary, the beneficiary will be Subpart G—Special Provisions
before OWCP. The claimant is solely
presumed to have received the notice of Representation responsible for paying the fee and other
payment, whether mailed or transmitted costs. OWCP will not reimburse the
electronically. § 30.600 May a claimant designate a
claimant, nor is it in any way liable for
representative?
§ 30.511 What is an ‘‘overpayment’’ for
the amount of the fee and costs.
(a) The claims process under this part
purposes of the EEOICPA? is informal, and OWCP acts as an § 30.603 Are there any limitations on what
An ‘‘overpayment’’ is any amount of impartial evaluator of the evidence. A the representative may charge the claimant
claimant need not be represented to file for his or her services?
compensation paid under sections
7384s or 7384u of the EEOICPA to a a claim or receive a payment. (a) Notwithstanding any contract, the
recipient that constitutes: Nevertheless, a claimant may appoint representative may not receive, for
one individual to represent his or her services rendered in connection with
(a) Payment where no amount is interests, but the appointment must be the claim, more than the percentages of
payable under this part; or in writing. the lump-sum payment made to the
(b) Payment in excess of the correct (b) There can be only one claimant set out in paragraph (b) of this
amount determined by OWCP. representative at any one time, so after section.
(b) The percentages referred to in by OWCP from the Energy Employees third parties should be attributed to
paragraph (a) of this section are: Occupational Illness Compensation separate conditions for which
(1) 2 percent for the filing of an initial Fund with respect to that claim to or on compensation is payable in connection
claim with OWCP; plus behalf of an employee or eligible with a single EEOICPA claim. If such an
(2) 10 percent with respect to surviving beneficiary, less charges for attribution is both practicable and
objections to a recommended decision any medical file review (i.e., the equitable, as determined by OWCP, in
denying payment of lump-sum physician does not examine the its discretion, the conditions will be
compensation. employee) done at the request of OWCP. treated as separate injuries for purposes
(c) Any representative who violates Charges for medical examinations also of calculating the amount to which the
this section shall be fined not more than may be subtracted if the employee or United States is subrogated.
$5,000. eligible surviving beneficiary establishes
(d) The fee limitations described in that the examinations were required to Effect of Tort Suits Against Beryllium
this section shall not apply with be made available to the employee Vendors and Atomic Weapons
respect to representative services that under a statute other than the EEOICPA. Employers
are not rendered in connection with a § 30.615 What type of tort suits filed
claim pending before OWCP. § 30.609 Is a settlement or judgment
received as a result of allegations of against beryllium vendors or atomic
weapons employers may disqualify certain
Third Party Liability medical malpractice in treating an illness
covered by the EEOICPA a recovery that claimants from receiving benefits under
§ 30.605 What rights does the United must be reported to OWCP? EEOICPA?
States have upon payment of compensation Since an injury caused by medical Section 7385d of the EEOICPA
under the EEOICPA? provides that a tort suit (other than an
malpractice in treating an illness
If an illness for which compensation covered by the EEOICPA is also covered administrative or judicial proceeding for
is payable under the EEOICPA is under the EEOICPA, any recovery in a workers’ compensation) solely for
caused, wholly or partially, by someone suit alleging such an injury is treated as injuries arising out of an exposure to
other than a federal employee acting a recovery that must be reported to beryllium or radiation covered by the
within the scope of his or her OWCP. EEOICPA, filed against a beryllium
employment, a DOE contractor or vendor or an atomic weapons employer,
subcontractor, a beryllium vendor or § 30.610 Are payments to an employee or by a covered employee, or an eligible
atomic weapons employer, the United eligible surviving beneficiary as a result of surviving beneficiary or beneficiaries of
an insurance policy which the employee or
States is subrogated for the full amount eligible surviving beneficiary has a deceased covered employee without
of any payment of compensation under purchased a recovery that must be reported an independent cause of action, will
the EEOICPA to any right or claim that to OWCP? disqualify that individual or individuals
the individual to whom the payment Since payments received by an from receiving benefits under the
was made may have against any person employee or eligible surviving EEOICPA unless the suit is terminated
or entity on account of such illness. beneficiary pursuant to an insurance in accordance with the requirements of
policy purchased by someone other than §§ 30.616 through 30.619 of these
§ 30.606 Under what circumstances must a
a liable third party are not payments in regulations.
recovery of money or other property in
connection with an illness for which satisfaction of liability for causing an § 30.616 What happens if this type of tort
benefits are payable under the EEOICPA be illness covered by the Act, they are not suit was filed prior to October 30, 2000?
reported to OWCP? considered a recovery that must be
(a) If a tort suit described in § 30.615
Any person who has filed an reported to OWCP.
was filed prior to October 30, 2000, the
EEOICPA claim that has been accepted claimant or claimants will not be
§ 30.611 If a settlement or judgment is
by OWCP (whether or not compensation received for more than one medical disqualified from receiving any
has been paid), or who has received condition, can the amount paid on a single EEOICPA benefits to which they may be
EEOICPA benefits in connection with a EEOICPA claim be attributed to different found entitled if the tort suit was
claim filed by another, is required to conditions for purposes of calculating the terminated in any manner prior to
notify OWCP of the receipt of money or amount to which the United States is December 28, 2001.
other property as a result of a settlement subrogated?
(b) If a tort suit described in § 30.615
or judgment in connection with the (a) All medical conditions accepted was filed prior to October 30, 2000 and
circumstances of that claim. by OWCP in connection with a single was pending as of December 28, 2001,
claim are treated as the same illness for the claimant or claimants will be
§ 30.607 How is a structured settlement
the purpose of computing the amount disqualified from receiving any
(that is, a settlement providing for receipt of
funds over a specified period of time) which the United States is entitled to EEOICPA benefits unless they dismiss
treated for purposes of reporting the offset in connection with the receipt of the tort suit prior to December 31, 2003.
recovery? a recovery from a third party, except
In this situation, the recovery to be that an injury caused by medical § 30.617 What happens if this type of tort
malpractice in treating an illness suit was filed during the period from
reported is the present value of the right
covered under the EEOICPA will be October 30, 2000 through December 28,
to receive all of the payments included 2001?
in the structured settlement, allocated in treated as a separate injury.
the case of multiple recipients in the (b) If an illness covered under the (a) If a tort suit described in § 30.615
same manner as single payment EEOICPA is caused under was filed during the period from
recoveries. circumstances creating a legal liability October 30, 2000 through December 28,
in more than one person, other than the 2001, the claimant or claimants will be
§ 30.608 How does the United States United States, a DOE contractor or disqualified from receiving any
calculate the amount to which it is subcontractor, a beryllium vendor or an EEOICPA benefits unless they dismiss
subrogated? atomic weapons employer, to pay the tort suit on or before the last
The subrogated amount of a specific damages, OWCP will determine whether permissible date described in paragraph
claim consists of the total money paid recoveries received from one or more (b) of this section.
(b) The last permissible date is the requirements of §§ 30.616 through or UB–92 (for hospitals), Form 79–1A
later of: 30.618. A similar result would occur if (for pharmacies), or other form as
(1) April 30, 2003; or a tort suit were filed by both the spouse warranted, and submit the form
(2) The date that is 30 months after of a deceased covered employee and promptly for processing.
the date the claimant or claimants first other family members (such as children (b) The provider shall identify each
became aware that an illness of the of the deceased covered employee). In service performed using the Physician’s
covered employee may be connected to this case, the spouse would be the only Current Procedural Terminology (CPT)
his or her exposure to beryllium or eligible surviving beneficiary of the code, the Centers for Medicare and
radiation covered by the EEOICPA. For deceased covered employee under the Medicaid Services Common Procedure
purposes of determining when this 30- EEOICPA because the other family Coding System (CCPCS) code, the
month period begins, ‘‘the date the members could not be eligible for National Drug Code (NDC), or the
claimant or claimants first became benefits while he or she was alive. As Revenue Center Code (RCC), with a brief
aware’’ will be deemed to be the date a result, the spouse would be the only narrative description. Where no code is
they received either a reconstructed party to the tort suit who would have to applicable, a detailed description of
dose from HHS, or a diagnosis of a comply with the termination services performed should be provided.
covered beryllium illness, as applicable. requirements of §§ 30.616 through (c) The provider shall also state each
30.618. diagnosed condition and furnish the
§ 30.618 What happens if this type of tort corresponding diagnostic code using the
suit is filed after December 28, 2001? § 30.620 How will OWCP ascertain whether ‘‘International Classification of Disease,
(a) If a tort suit described in § 30.615 a claimant filed this type of tort suit and if 9th Edition, Clinical Modification’’
is filed after December 28, 2001, the he or she has been disqualified from (ICD–9–CM), or as revised. A separate
claimant or claimants will be receiving any benefits under the EEOICPA? bill shall be submitted when the
disqualified from receiving any Prior to authorizing payment on a employee is discharged from treatment
EEOICPA benefits if a final court claim, OWCP will require each claimant or monthly, if treatment for the
decision is entered against them. to execute and provide an affidavit occupational illness is necessary for
(b) If a tort suit described in § 30.615 stating if he or she filed a tort suit (other more than 30 days.
is filed after December 28, 2001 and a than an administrative or judicial (1)(i) Hospitals shall submit charges
final court decision has not yet been proceeding for workers’ compensation) for medical and surgical treatment or
entered against the claimant or against either a beryllium vendor or an supplies promptly on Form OWCP–92
claimants, they will also be disqualified atomic weapons employer, solely for or UB–92. The provider shall identify
from receiving any EEOICPA benefits injuries arising out of an exposure to each outpatient radiology service,
unless they dismiss the tort suit on or beryllium or radiation covered by the outpatient pathology service and
before the last permissible date EEOICPA, and if so, the current status physical therapy service performed,
described in paragraph (c) of this of such tort suit. OWCP may also using CCPCS/CPT codes with a brief
section. require the submission of any narrative description. The charge for
(c) The last permissible date is the supporting evidence necessary to each individual service, or the total
later of: confirm the particulars of any affidavit charge for all identical services, should
(1) April 30, 2003; or provided under this section. also appear on the form.
(2) The date that is 30 months after (ii) Other outpatient hospital services
the date the claimant or claimants first Subpart H—Information for Medical for which CCPCS/CPT codes exist shall
became aware that an illness of the Providers also be coded individually using the
covered employee may be connected to coding scheme noted in this section.
Medical Records and Bills
his or her exposure to beryllium or Services for which there are no CCPCS/
radiation covered by the EEOICPA. For § 30.700 What kinds of medical records CPT codes available can be presented
purposes of determining when this 30- must providers keep? using the RCCs described in the
month period begins, ‘‘the date the Federal government medical officers, ‘‘National Uniform Billing Data
claimant or claimants first became private physicians and hospitals are Elements Specifications,’’ current
aware’’ will be deemed to be the date required to keep records of all cases edition. The provider shall also furnish
they received either a reconstructed treated by them under the EEOICPA so the diagnostic code using the ICD–9–
dose from HHS, or a diagnosis of a they can supply OWCP with a history of CM. If the outpatient hospital services
covered beryllium illness, as applicable. the claimed occupational illness, a include surgical and/or invasive
description of the nature and extent of procedures, the provider shall code each
§ 30.619 Do all the parties to this type of procedure using the proper CCPCS/CPT
the claimed occupational illness, the
tort suit have to take these actions? codes and furnishing the corresponding
results of any diagnostic studies
The type of tort suits described in performed, and the nature of the diagnostic codes using the ICD–9–CM.
§ 30.615 may be filed by more than one treatment rendered. (2) Pharmacies shall itemize charges
individual, each with a different cause for prescription medications,
of action. For example, a tort suit may § 30.701 How are medical bills to be appliances, or supplies on Form 79–1A
be filed against a beryllium vendor by submitted? and submit them promptly for
both a covered employee and his or her (a) All charges for medical and processing. Bills for prescription
spouse, with the covered employee surgical treatment, appliances or medications must include the NDC
filing for chronic beryllium disease and supplies furnished to employees, except assigned to the product, the generic or
the spouse filing for loss of consortium for treatment and supplies provided by trade name of the drug provided, the
due to the covered employee’s exposure nursing homes, shall be supported by prescription number, the quantity
to beryllium. However, since the spouse medical evidence as provided in provided, and the date the prescription
of a living covered employee could not § 30.700. The physician or provider was filled.
be an eligible surviving beneficiary shall itemize the charges on Form (3) Nursing homes shall itemize
under the EEOICPA, the spouse would OWCP–1500 or CMS–1500 (for charges for appliances, supplies or
not have to comply with the termination professional charges), Form OWCP–92 services on the provider’s billhead
stationery and submit them promptly (c) The requirements of paragraphs (a) Medical Fee Schedule
for processing. and (b) of this section may be waived if
(d) By submitting a bill and/or § 30.705 What services are covered by the
extensive delays in the filing or the
OWCP fee schedule?
accepting payment, the provider adjudication of a claim make it
signifies that the service for which unusually difficult for the employee to (a) Payment for medical and other
reimbursement is sought was performed obtain the required information. health services furnished by physicians,
as described and was necessary. In hospitals and other providers for
(d) Copies of bills submitted for
addition, the provider thereby agrees to occupational illnesses shall not exceed
reimbursement will not be accepted
comply with all regulations set forth in a maximum allowable charge for such
unless they bear the original signature of service as determined by OWCP, except
this subpart concerning the rendering of the provider, with evidence of payment.
treatment and/or the process for seeking as provided in this section.
Payment for medical and surgical (b) The schedule of maximum
reimbursement for medical services, treatment, appliances or supplies shall allowable charges does not apply to
including the limitation imposed on the in general be no greater than the charges for services provided in nursing
amount to be paid for such services. maximum allowable charge for such homes, but it does apply to charges for
(e) In summary, bills submitted by service determined by OWCP, as set treatment furnished in a nursing home
providers must: be itemized on Form forth in § 30.705. by a physician or other medical
OWCP–1500 or CMS–1500 (for (e) An employee will be only partially professional.
physicians), Form OWCP–92 or UB–92 reimbursed for a medical expense if the (c) The schedule of maximum
(for hospitals), or Form 79–1A (for amount he or she paid to a provider for allowable charges also does not apply to
pharmacies); contain the signature or the service exceeds the maximum charges for appliances, supplies,
signature stamp of the provider; and allowable charge set by OWCP’s services or treatment furnished by
identify the procedures using CCPCS/ schedule. If this happens, OWCP will medical facilities of the U.S. Public
CPT codes, RCCs, or NDCs. Otherwise, advise the employee of the maximum Health Service or the Departments of the
the bill may be returned to the provider allowable charge for the service in Army, Navy, Air Force and Veterans
for correction and resubmission. question and of his or her responsibility Affairs.
§ 30.702 How should an employee prepare to ask the provider to refund to the
employee, or credit to the employee’s § 30.706 How are the maximum fees
and submit requests for reimbursement for defined?
medical expenses, transportation costs, account, the amount he or she paid
loss of wages, and incidental expenses? which exceeds the maximum allowable For professional medical services,
charge. The provider may request OWCP shall maintain a schedule of
(a) If an employee has paid bills for
reconsideration of the fee determination maximum allowable fees for procedures
medical, surgical or other services,
as set forth in § 30.712. performed in a given locality. The
supplies or appliances due to an schedule shall consist of: an assignment
occupational illness, he or she may (f) If the provider fails to make
of a value to procedures identified by
submit an itemized bill on Form appropriate refund to the employee, or
CCPCS/CPT code which represents the
OWCP–1500 or CMS–1500, together to credit the employee’s account, within
relative skill, effort, risk and time
with a medical report as provided in 60 days after the employee requests a
required to perform the procedure, as
§ 30.700, for consideration. refund of any excess amount, or the date
compared to other procedures of the
(1) The provider of such service shall of a subsequent reconsideration
same general class; an index based on a
state each diagnosed condition and decision which continues to disallow all
relative value scale that considers skill,
furnish the applicable ICD–9–CM code or a portion of the appealed amount,
labor, overhead, malpractice insurance
and identify each service performed OWCP will initiate exclusion
and other related costs; and a monetary
using the applicable CCPCS/CPT code, procedures as provided by § 30.715.
value assignment (conversion factor) for
with a brief narrative description of the (g) If the provider does not refund to one unit of value in each of the
service performed, or, where no code is the employee or credit to his or her categories of service.
applicable, a detailed description of that account the amount of money paid in
service. excess of the allowed charge, the § 30.707 How are payments for particular
(2) The bill must be accompanied by employee should submit documentation services calculated?
evidence that the provider received of the attempt to obtain such refund or Payment for a procedure identified by
payment for the service from the credit to OWCP. OWCP may authorize a CCPCS/CPT code shall not exceed the
employee and a statement of the amount reasonable reimbursement to the amount derived by multiplying the
paid. Acceptable evidence that payment employee after reviewing the facts and relative values for that procedure by the
was received includes, but is not limited circumstances of the case. geographic indices for services in that
to, a signed statement by the provider, area and by the dollar amount assigned
a mechanical stamp or other device § 30.703 What are the time limitations on to one unit in that category of service.
showing receipt of payment, a copy of OWCP’s payment of bills? (a) The ‘‘locality’’ which serves as a
the employee’s canceled check (both OWCP will pay providers and basis for the determination of average
front and back) or a copy of the reimburse employees promptly for all cost is defined by the Bureau of Census
employee’s credit card receipt. bills received on an approved form and Metropolitan Statistical Areas. OWCP
(b) If a hospital, pharmacy or nursing in a timely manner. However, no bill shall base the determination of the
home provided services, the employee will be paid for expenses incurred if the relative per capita cost of medical care
should submit the bill in accordance bill is submitted more than one year in a locality using information about
with the provisions of § 30.701(a). Any beyond the end of the calendar year in enrollment and medical cost per county,
request for reimbursement must be which the expense was incurred or the provided by the Centers for Medicare
accompanied by evidence, as described service or supply was provided, or more and Medicaid Services (CMS).
in paragraph (a) of this section, that the than one year beyond the end of the (b) OWCP shall assign the relative
provider received payment for the calendar year in which the claim was value units (RVUs) published by CMS to
service from the employee and a first accepted as compensable by OWCP, all services for which CMS has made
statement of the amount paid. whichever is later. assignments, using the most recent
revision. Where there are no RVUs (b) The NDCs, the average wholesale (b) If the charge submitted for a
assigned to a procedure, OWCP may prices, and the dispensing fee shall be service supplied to an employee
develop and assign any RVUs reviewed from time to time and updated exceeds the maximum amount
considered appropriate. The geographic as necessary. determined to be reasonable according
adjustment factor shall be that to the schedule, OWCP shall pay the
designated by Geographic Practice Cost § 30.710 How are payments for inpatient amount allowed by the schedule for that
medical services determined?
Indices for Metropolitan Statistical service and shall notify the provider in
Areas as devised for CMS and as (a) OWCP will pay for inpatient writing that payment was reduced for
updated or revised by CMS from time to medical services according to pre- that service in accordance with the
time. OWCP will devise conversion determined, condition-specific rates schedule. OWCP shall also notify the
factors for each category of service, and based on the Prospective Payment provider of the method for requesting
in doing so may adapt CMS conversion System (PPS) devised by CMS (42 CFR reconsideration of the balance of the
factors as appropriate using OWCP’s parts 412, 413, 424, 485, and 489). Using charge.
processing experience and internal data. this system, payment is derived by
multiplying the diagnosis-related group § 30.712 If OWCP reduces a fee, may a
(c) For example, if the unit values for
(DRG) weight assigned to the hospital provider request reconsideration of the
a particular surgical procedure are 2.48 reduction?
for physician’s work (W), 3.63 for discharge by the provider-specific
factors. (a) A physician or other provider
practice expense (PE), and 0.48 for
whose charge for service is only
malpractice insurance (M), and the (1) All hospital discharges will be
partially paid because it exceeds a
dollar value assigned to one unit in that classified according to the DRGs
maximum allowable amount set by
category of service (surgery) is $61.20, prescribed by CMS in the form of the
OWCP may, within 30 days, request
then the maximum allowable charge for DRG Grouper software program. On this
reconsideration of the fee
one performance of that procedure is the list, each DRG represents the average
determination.
product of the three RVUs times the resources necessary to provide care in a
(1) The provider should make such a
corresponding geographical indices for case in that DRG relative to the national
request to the district office with
the locality times the conversion factor. average of resources consumed per case.
jurisdiction over the employee’s claim.
If the geographic indices for the locality (2) The provider-specific factors will The request must be accompanied by
are 0.988(W), 0.948 (PE), and 1.174 (M), be provided by CMS in the form of their documentary evidence that the
then the maximum payment calculation PPS Pricer software program. The procedure performed was incorrectly
is: software takes into consideration the identified by the original code, that the
[(2.48)(0.988) + (3.63)(0.948) + type of facility, census division, actual presence of a severe or concomitant
(0.48)(1.174)] × $61.20 geographic location of the hospital, case medical condition made treatment
[2.45 + 3.44 + .56] × $61.20 mix cost per discharge, number of especially difficult, or that the provider
6.45 × $61.20 = $394.74 hospital beds, intern/beds ratio, possessed unusual qualifications. In
operating cost to charge ratio, and other itself, board certification in a specialty
§ 30.708 Does the fee schedule apply to
factors used by CMS to determine the is not sufficient evidence of unusual
every kind of procedure?
specific rate for a hospital discharge qualifications to justify an exception.
Where the time, effort and skill under their PPS. OWCP may devise
required to perform a particular These are the only three circumstances
price adjustment factors as appropriate that will justify reevaluation of the paid
procedure vary widely from one using OWCP’s processing experience
occasion to the next, OWCP may choose amount.
and internal data. (2) A list of district offices and their
not to assign a relative value to that
(3) OWCP will base payments to respective areas of jurisdiction is
procedure. In this case the allowable
facilities excluded from CMS’s PPS on available upon request from the U.S.
charge for the procedure will be set
consideration of detailed medical Department of Labor, Office of Workers’
individually based on consideration of a
reports and other evidence. Compensation Programs, Washington,
detailed medical report and other
evidence. At its discretion, OWCP may (4) OWCP shall review the pre- DC 20210, or on the Internet at
set fees without regard to schedule determined hospital rates at least once www.dol.gov/esa/regs/compliance/
limits for specially authorized a year, and may adjust any or all owcp/eeoicp/main.htm. Within 30 days
consultant examinations, for directed components when OWCP deems it of receiving the request for
medical examinations, and for other necessary or appropriate. reconsideration, the district office shall
specially authorized services. (b) OWCP shall review the schedule respond in writing stating whether or
of fees at least once a year, and may not an additional amount will be
§ 30.709 How are payments for medicinal adjust the schedule or any of its allowed as reasonable, considering the
drugs determined? components when OWCP deems it evidence submitted.
Payment for medicinal drugs necessary or appropriate. (b) If the district office issues a
prescribed by physicians shall not decision that continues to disallow a
exceed the amount derived by § 30.711 When and how are fees reduced? contested amount, the provider may
multiplying the average wholesale price (a) OWCP shall accept a provider’s apply to the Regional Director of the
of the medication by the quantity or designation of the code to identify a region with jurisdiction over the district
amount provided, plus a dispensing fee. billed procedure or service if the code office. The application must be filed
(a) All prescription medications is consistent with medical reports and within 30 days of the date of such
identified by NDC will be assigned an other evidence. Where no code is decision, and it may be accompanied by
average wholesale price representing the supplied, OWCP may determine the additional evidence. Within 60 days of
product’s nationally recognized code based on the narrative description receipt of such application, the Regional
wholesale price as determined by of the procedure on the billing form and Director shall issue a decision in writing
surveys of manufacturers and in associated medical reports. OWCP stating whether or not an additional
wholesalers. OWCP will establish the will pay no more than the maximum amount will be allowed as reasonable,
dispensing fee. allowable fee for that procedure. considering the evidence submitted.
§ 30.713 If OWCP reduces a fee, may a to be substantially in excess of such these procedures, ‘‘Regional Director’’
provider bill the employee for the balance? provider’s customary charges, unless may include any officer designated to
A provider whose fee for service is OWCP finds there is good cause for the act on his or her behalf.
partially paid by OWCP as a result of bills or requests containing such
the application of its fee schedule or charges; § 30.718 How is a provider notified of
other tests for reasonableness in OWCP’s intent to exclude him or her?
(e) Knowingly failed to timely
accordance with this part shall not reimburse employees for treatment, The Regional Director shall initiate
request reimbursement from the services or supplies furnished under the exclusion process by sending the
employee for additional amounts. this subpart and paid for by OWCP; provider a letter, by certified mail and
(a) Where a provider’s fee for a (f) Failed, neglected or refused on with return receipt requested, which
particular service or procedure is lower three or more occasions during a 12- shall contain the following:
to the general public than as provided month period to submit full and (a) A concise statement of the grounds
by the schedule of maximum allowable accurate medical reports, or to respond upon which exclusion shall be based;
charges, the provider shall bill at the (b) A summary of the information,
to requests by OWCP for additional
lower rate. A fee for a particular service with supporting documentation, upon
reports or information, as required by
or procedure which is higher than the which the Regional Director has relied
§ 30.700 of this part;
provider’s fee to the general public for in reaching an initial decision that
(g) Knowingly furnished treatment,
that same service or procedure will be exclusion proceedings should begin;
services or supplies which are (c) An invitation to the provider to:
considered a charge ‘‘substantially in substantially in excess of the employee’s
excess of such provider’s customary (1) Resign voluntarily from
needs, or of a quality which fails to meet participation in the EEOICPA program
charges’’ for the purposes of § 30.715(d). professionally recognized standards; or
(b) A provider whose fee for service without admitting or denying the
(h) Collected or attempted to collect allegations presented in the letter; or
is partially paid by OWCP as the result from the employee, either directly or
of the application of the schedule of (2) Request that the decision on
through a collection agent, an amount in exclusion be based upon the existing
maximum allowable charges and who excess of the charge allowed by OWCP record and any additional
collects or attempts to collect from the for the procedure performed, and has documentary information the provider
employee, either directly or through a failed or refused to make appropriate may wish to furnish;
collection agent, any amount in excess refund to the employee, or to cease such (d) A notice of the provider’s right, in
of the charge allowed by OWCP, and collection attempts, within 60 days of the event of an adverse ruling by the
who does not cease such action or make the date of the decision of OWCP. Regional Director, to request a formal
appropriate refund to the employee hearing before an administrative law
within 60 days of the date of the § 30.716 What will cause OWCP to
judge;
decision of OWCP, shall be subject to automatically exclude a physician or other
provider of medical services and supplies? (e) A notice that should the provider
the exclusion procedures provided by fail to answer (as described in § 30.719)
§ 30.715(h). (a) OWCP shall automatically exclude
the letter of intent within 30 calendar
a physician, hospital, or provider of
Exclusion of Providers days of receipt, the Regional Director
medical services or supplies who has
may deem the allegations made therein
§ 30.715 What are the grounds for been convicted of a crime described in
to be true and may order exclusion of
excluding a provider from payment under § 30.715(a), or has been excluded or
the provider without conducting any
this part? suspended, or has resigned in lieu of
further proceedings; and
A physician, hospital, or provider of exclusion or suspension, from (f) The name and address of the
medical services or supplies shall be participation in any program as OWCP representative who shall be
excluded from payment under this part described in § 30.715(b). responsible for receiving the answer
if such physician, hospital or provider (b) The exclusion applies to from the provider.
has: participating in the program and to
(a) Been convicted under any criminal seeking payment under this part for § 30.719 What requirements must the
statute of fraudulent activities in services performed after the date of the provider’s reply and OWCP’s decision
connection with any Federal or State entry of the judgment of conviction or meet?
program for which payments are made order of exclusion, suspension or (a) The provider’s answer shall be in
to providers for similar medical, resignation, as the case may be, by the writing and shall include an answer to
surgical or hospital services, appliances court or agency concerned. Proof of the OWCP’s invitation to resign voluntarily.
or supplies; conviction, exclusion, suspension or If the provider does not offer to resign,
(b) Been excluded or suspended, or resignation may consist of a copy he or she shall request that a
has resigned in lieu of exclusion or thereof authenticated by the seal of the determination be made upon the
suspension, from participation in any court or agency concerned. existing record and any additional
Federal or State program referred to in information provided.
paragraph (a) of this section; § 30.717 When are OWCP’s exclusion (b) Should the provider fail to answer
(c) Knowingly made, or caused to be procedures initiated? the letter of intent within 30 calendar
made, any false statement or Upon receipt of information days of receipt, the Regional Director
misrepresentation of a material fact in indicating that a physician, hospital or may deem the allegations made therein
connection with a determination of the provider of medical services or supplies to be true and may order exclusion of
right to reimbursement under this part, (hereinafter the provider) has engaged in the provider.
or in connection with a request for activities enumerated in paragraphs (c) (c) By arrangement with the OWCP
payment; through (h) of § 30.715, the Regional representative, the provider may inspect
(d) Submitted, or caused to be Director, after completion of inquiries or request copies of information in the
submitted, three or more bills or he or she deems appropriate, may record at any time prior to the Regional
requests for payment within a 12- initiate procedures to exclude the Director’s decision.
month period under this subpart provider from participation in the (d) The Regional Director shall issue
containing charges which OWCP finds EEOICPA program. For the purposes of his or her decision in writing, and shall
send a copy of the decision to the to be heard on any matter placed in a written decision and cause it to be
provider by certified mail, return receipt issue by his or her response to the served on all parties to the proceeding,
requested. The decision shall advise the Notice of Intent to Exclude, and may their representatives and OWCP.
provider of his or her right to request, designate ‘‘all issues’’ for purposes of
within 30 days of the date of the adverse hearing. However, a specific designation § 30.724 How can a party request review
by OWCP of the administrative law judge’s
decision, a formal hearing before an of issues is required if the provider
recommended decision?
administrative law judge under the wishes to interpose affirmative defenses
procedures set forth in § 30.720. The or request the certification of questions (a) Any party adversely affected or
filing of a request for a hearing within for an advisory opinion. aggrieved by the decision of the
the time specified shall stay the administrative law judge may file a
effectiveness of the decision to exclude.
§ 30.722 How are advisory opinions petition for discretionary review with
obtained? the Director for Energy Employees
§ 30.720 How can an excluded provider A certification of a request for an Occupational Illness Compensation
request a hearing? advisory opinion concerning within 30 days after issuance of such
A request for a hearing shall be sent professional medical standards, medical decision. The administrative law judge’s
to the OWCP representative named ethics or medical regulation to a decision, however, shall be effective on
pursuant to § 30.718(f) and shall competent recognized or professional the date issued and shall not be stayed
contain: organization or Federal, State or local except upon order of the Director.
(a) A concise notice of the issues on regulatory agency may be made: (b) Review by the Director for Energy
which the provider desires to give (a) As to an issue properly designated Employees Occupational Illness
evidence at the hearing; by the provider, in the sound discretion Compensation shall not be a matter of
(b) Any request for a more definite of the administrative law judge, right but of the sound discretion of the
statement by OWCP; provided that the request will not Director.
(c) Any request for the presentation of unduly delay the proceedings; (c) Petitions for discretionary review
oral argument or evidence; and (b) By OWCP on its own motion either shall be filed only upon one or more of
(d) Any request for a certification of before or after the institution of the following grounds:
questions concerning professional proceedings, and the results thereof (1) A finding or conclusion of material
medical standards, medical ethics or shall be made available to the provider fact is not supported by substantial
medical regulation for an advisory at the time that proceedings are evidence;
opinion from a competent recognized instituted or, if after the proceedings are (2) A necessary legal conclusion is
professional organization or Federal, instituted, within a reasonable time after erroneous;
State or local regulatory body. receipt. The opinion, if rendered by the (3) The decision is contrary to law or
organization or agency, is advisory only to the duly promulgated rules or
§ 30.721 How are hearings assigned and and not binding on the administrative decisions of OWCP;
scheduled? law judge. (4) A substantial question of law,
(a) If the designated OWCP policy, or discretion is involved; or
§ 30.723 How will the administrative law
representative receives a timely request judge conduct the hearing and issue the (5) A prejudicial error of procedure
for hearing, the OWCP representative recommended decision? was committed.
shall refer the matter to the Chief (a) To the extent appropriate, (d) Each issue shall be separately
Administrative Law Judge of the proceedings before the administrative numbered and plainly and concisely
Department of Labor, who shall assign law judge shall be governed by 29 CFR stated, and shall be supported by
it for an expedited hearing. The part 18. detailed citations to the record when
administrative law judge assigned to the (b) The administrative law judge shall assignments of error are based on the
matter shall consider the request for receive such relevant evidence as may record, and by statutes, regulations or
hearing, act on all requests therein, and be adduced at the hearing. Evidence principal authorities relied upon.
issue a Notice of Hearing and Hearing shall be presented under oath, orally or Except for good cause shown, no
Schedule for the conduct of the hearing. in the form of written statements. The assignment of error by any party shall
A copy of the hearing notice shall be administrative law judge shall consider rely on any question of fact or law upon
served on the provider by certified mail, the Notice and Response, including all which the administrative law judge had
return receipt requested. The Notice of pertinent documents accompanying not been afforded an opportunity to
Hearing and Hearing Schedule shall them, and may also consider any pass.
include: evidence which refers to the provider or (e) A statement in opposition to the
(1) A ruling on each item raised in the to any claim with respect to which the petition for discretionary review may be
request for hearing; provider has provided medical services, filed, but such filing shall in no way
(2) A schedule for the prompt hospital services, or medical services delay action on the petition.
disposition of all preliminary matters, and supplies, and such other evidence (f) If a petition is granted, review shall
including requests for more definite as the administrative law judge may be limited to the questions raised by the
statements and for the certification of determine to be necessary or useful in petition.
questions to advisory bodies; and evaluating the matter. (g) A petition not granted within 20
(3) A scheduled hearing date not less (c) All hearings shall be recorded and days after receipt of the petition is
than 30 days after the date the schedule the original of the complete transcript deemed denied.
is issued, and not less than 15 days after shall become a permanent part of the
the scheduled conclusion of preliminary § 30.725 What are the effects of non-
official record of the proceedings.
matters, provided that the specific time automatic exclusion?
(d) In conjunction with the hearing,
and place of the hearing may be set on the administrative law judge may: (a) OWCP shall give notice of the
10 days’ notice. (1) Administer oaths; and exclusion of a physician, hospital or
(b) The purpose of the designation of (2) Examine witnesses. provider of medical services or supplies
issues is to provide for an effective (e) At the conclusion of the hearing, to:
hearing process. The provider is entitled the administrative law judge shall issue (1) All OWCP district offices;
(2) CMS; and § 30.726 How can an excluded provider be basis for the application. The
reinstated? application should be accompanied by
(3) All employees who are known to
(a) If a physician, hospital, or provider supporting documents and affidavits.
have had treatment, services or supplies
of medical services or supplies has been (c) A request for reinstatement may be
from the excluded provider within the
automatically excluded pursuant to accompanied by a request for oral
six-month period immediately § 30.716, the provider excluded will
preceding the order of exclusion. argument. Oral argument will be
automatically be reinstated upon notice
allowed only in unusual circumstances
(b) Notwithstanding any exclusion of to OWCP that the conviction or
where it will materially aid the decision
a physician, hospital, or provider of exclusion which formed the basis of the
process.
medical services or supplies under this automatic exclusion has been reversed
subpart, OWCP shall not refuse an or withdrawn. However, an automatic (d) The Director for Energy Employees
employee reimbursement for any reinstatement shall not preclude OWCP Occupational Illness Compensation
otherwise reimbursable medical from instituting exclusion proceedings shall order reinstatement only in
treatment, service or supply if: based upon the underlying facts of the instances where such reinstatement is
matter. clearly consistent with the goal of this
(1) Such treatment, service or supply (b) A physician, hospital, or provider subpart to protect the EEOICPA program
was rendered in an emergency by an of medical services or supplies excluded against fraud and abuse. To satisfy this
excluded physician; or from participation as a result of an order requirement the provider must provide
(2) The employee could not issued pursuant to this subpart may reasonable assurances that the basis for
reasonably have been expected to know apply for reinstatement one year after the exclusion will not be repeated.
of such exclusion. the entry of the order of exclusion, Signed at Washington, DC, this 13th day of
unless the order expressly provides for December, 2002.
(c) An employee who is notified that
a shorter period. An application for
his or her attending physician has been Elaine L. Chao,
reinstatement shall be addressed to the
excluded shall have a new right to select Director for Energy Employees Secretary of Labor.
a qualified physician. Occupational Illness Compensation, and [FR Doc. 02–31841 Filed 12–24–02; 8:45 am]
shall contain a concise statement of the BILLING CODE 4510–CR–P

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Thursday,

December 26, 2002

20 CFR Parts 1 and 30

DEPARTMENT OF LABOR collection requirements under the claims process, entitlement

FY2002 FY2003 FY2004 FY2005 FY2006

Admin ........................................................................................................................... $136 $100 $55 $50 $33

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