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ENERGY EMPLOYEES OCCUPATIONAL ILLNESS

COMPENSATION PROGRAM: ARE WE FULFILLING THE PROMISE WE MADE TO THESE COLD

WAR VETERANS WHEN WE CREATED THIS

PROGRAM? (PART V)

HEARING

BEFORE THE

SUBCOMMITTEE ON IMMIGRATION, 

BORDER SECURITY, AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

DECEMBER 5, 2006

Serial No. 109–159

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS

JOHN N. HOSTETTLER, Indiana, Chairman

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

JEFF FLAKE, Arizona 

BOB INGLIS, South Carolina 

DARRELL ISSA, California 

SHEILA JACKSON LEE, Texas 

HOWARD L. BERMAN, California 

ZOE LOFGREN, California 

LINDA T. SA ́ NCHEZ, California 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts

GEORGE FISHMAN, Chief Counsel 

ART ARTHUR, Counsel 

ALLISON BEACH, Counsel 

CINDY BLACKSTON, Professional Staff 

NOLAN RAPPAPORT, Minority Counsel 

(III)

C O N T E N T S 

DECEMBER 5, 2006

OPENING STATEMENT 

Page 

The Honorable John N. Hostettler, a Representative in Congress from the 

State of Indiana, and Chairman, Subcommittee on Immigration, Border 

Security, and Claims ............................................................................................ 1

The Honorable Sheila Jackson Lee, a Representative in Congress from the 

State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims ..................................................................................... 5

WITNESSES 

Mr. Shelby Hallmark, Director for the Office of Workers’ Compensation Programs, U.S. Department of Labor 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 10

Mr. John Howard, M.D., Director, National Institute for Occupational Safety 

and Health 

Oral Testimony ..................................................................................................... 17

Prepared Statement ............................................................................................. 18

Mr. Daniel Bertoni, Director, Education, Workforce, and Income Security 

Issues, U.S. Government Accountability Office 

Oral Testimony ..................................................................................................... 19

Prepared Statement ............................................................................................. 22

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable John N. Hostettler, a Representative 

in Congress from the State of Indiana, and Chairman, Subcommittee on 

Immigration, Border Security, and Claims ........................................................ 52

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Ranking Member, Subcommittee 

on Immigration, Border Security, and Claims ................................................... 63

Significant documents and communications related to the Subcommittee’s 

oversight of the Energy Employees Occupational Illness Compensation Program Act ............................................................................................................... 68

(1)

ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE 

FULFILLING THE PROMISE WE MADE TO 

THESE COLD WAR VETERANS WHEN WE 

CREATED THIS PROGRAM? (PART V) 

TUESDAY, DECEMBER 5, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 4:15 p.m., in Room 

2141, Rayburn House Office Building, the Honorable John 

Hostettler (Chairman of the Subcommittee) presiding. 

Mr. HOSTETTLER. The Subcommittee will come to order. 

This is the fifth and final hearing in a series of hearings before 

the Subcommittee in this Congress on the implementation of the 

Energy Employees Occupational Illness Compensation Program 

Act. The overarching purpose of these hearings has been to make 

sure the Government is fulfilling the promises made to these workers who sacrificed so much for their country during the Cold War. 

This program was created to help them, not as some science experiment to provide unlimited employment for Government contractors 

and certainly not to set these workers up to be deceived and minimized by the Government yet again. 

Because DOE and its contractors often did not properly monitor 

workers’ exposures to radiation and other toxins and, often, records 

of worker exposures no longer exist, EEOICPA provided that HHS 

could designate such workers as members of the, ‘‘Special Exposure 

Cohort,’’ or SEC. Under a designated SEC, benefits are paid to 

workers who received on-the-job radiation exposure for a period of 

time and who have been diagnosed with one of 22 radiosensitive 

cancers. 

When this law was enacted in 2000, Congress did not know how 

many new groups of workers might be designated as belonging in 

a Special Exposure Cohort, but from hearings in this Committee 

we knew that there was limited radiation monitoring data and nonexistent health physics programs in the earliest years, and this 

would make it almost impossible to accurately reconstruct dose for 

many claimants. 

Without the ability to add workers to the Special Exposure Cohort, many would face an insurmountable burden of proof when it 

was the Government who placed them in harm’s way, frequently 

2

misled them about the hazards they were facing, and failed to 

properly monitor their exposures. 

It seems prudent to revisit some of the historical evidence of the 

Government’s knowledge of what these workers were being subjected to and the intentional decision to keep that knowledge a secret. 

At Mallinckrodt, a 1951 Atomic Energy Commission memo assessed that their potential liability as a result of workers receiving 

radiation exposure for several years had been considerably more 

than any group for which data are available. The memo concedes, 

‘‘the possibility of tumor development among Mallinckrodt employees must be recognized,’’ but the workers were never told. 

There are several examples from a formerly secret memo by the 

Atomic Energy Commission entitled Health Hazards in New York 

Operations Facilities Producing and Processing Uranium, April 1, 

1949, that shed light on the amount of exposure workers received. 

At Harshaw Chemical in Cleveland, Ohio, the AEC memo 

showed 33 of 88 employees were exposed to uranium dust concentrations of 140 to 370 times the so-called preferred level, and 

many employees had 2 to 4 years of exposure at these levels. 

At Electromet in Niagara Falls, New York, the AEC found that 

most of the process workers were exposed to uranium dust at five 

times the so-called preferred level, and the bomb loaders were exposed to 600 times the preferred level in 1948. 

At the Simonds Saw and Steel Plant in Lockport, New York, 

AEC wrote that, ‘‘In order to satisfy Hanford’s urgent need for 

rolled metal, which is uranium, it was necessary to begin operations before suitable controls could be installed.’’ As a result, employees were exposed to a daily average of 155 times the preferred 

levels of uranium. 

An AEC memo acknowledged that with the exception of one facility, ‘‘No effort has been made to explain the nature of the special 

problems which exist.’’ AEC wrote that employees were, ‘‘transferred from department to department and no record made of the 

fact.’’

‘‘It will therefore be impossible without relying on the memory of 

the individual employees and their foreman to reconstruct the dust 

exposure records of many present employees.’’

The AEC noted that due to the health hazards to workers, ‘‘The 

decision must therefore be made to provide satisfactory operating 

conditions despite existing operations pressures. If this is not done, 

it will be necessary to classify at least some of the operations within these plants as being extra-hazardous in nature. This, of course, 

means concomitant complications such as difficulties in securing individuals for the job if full recognition is given to the extra-hazardous nature and insurance difficulties.’’

These are just a few examples of the history that guided the decision to provide relief for the workers through the Special Exposure 

Cohort petition process. 

While progress has been made regarding claims processed at 

DOD, several-thousand dose reconstructions are not completed at 

NIOSH more than 6 years after enactment. Advisory board members have been removed and added with no rhyme or reason, leaving the board imbalanced. 

3

The Administration has not acted on repeated requests by this 

Committee, as well as many Members of Congress to rectify this 

imbalance. Although OMB has indicated that the OMB passback 

does not reflect Administration policy, DOL’s involvement in selectively culling compensable claims to second-guess NIOSH, constant 

internal criticism of the Advisory Board and the audit contractor, 

brainstorming on ways to limit the scope of SECs, and significant 

involvement in SEC rulemakings raises questions, now being evaluated by the GAO, on whether DOL has exceeded its authority and 

is involved in issues the law reserves for NIOSH and the Advisory 

Board. 

A number of pressing concerns with Subtitle E of the program, 

the portion of the program that provides wage replacement and/or 

impairment benefits to workers for their illness from exposure to 

toxic substances at DOE facilities, have yet to be scrutinized by the 

Committee. 

DOL testimony at our March 1, 2006, hearing about the DOL’s 

role in the development of the OMB passback included a statement 

that ‘‘Cost containment is not part of any strategy or involvement 

that the Department of Labor has had in this process.’’ Yet oversight by this Subcommittee has found e-mails and memos discussing controlling approvals of SEC petitions by: 

One, having OMB review each petition with DOL input prior to 

final approval, a role specifically tasked to HHS; 

Two, refreshing the members of the Advisory Board to correct 

what is framed as an excessively claimant-favorable board; 

Three, selecting certain claims for cancers deemed compensable 

by NIOSH and then dissecting the NIOSH radiation dose estimate 

looking to show NIOSH error and justify an argument to reduce 

compensable claims; 

Four, ways to reduce the number of workers included in SEC 

classes; 

Five, working on NIOSH rulemakings to reduce the list of 22 

SEC-covered cancers and finding legalistic interpretations to reduce the number to as few as one type of cancer; 

Six, developing contingency plans to seek advice from the Justice 

Department that would relieve DOL of the obligation to pay benefits to certain Special Exposure Cohorts if DOL disagreed with the 

rationale for approving that SEC; and 

Seven, bringing in other entities to challenge NIOSH recommendations for SECs. 

We hope DOL will shed light on the discrepancy between previous testimony to this Committee in March and the document specifically viewed by the Committee that any rational person would 

perceive to be a benefits containment agenda through March of 

2006. 

Although DOL has produced about a dozen binders of materials 

to the Committee, we note that another eight binders could only be 

reviewed in the DOL’s offices and copies could not be made. Although four trips have been made to DOL, this inconvenience has 

hampered the necessary Committee oversight over the program. 

Many documents reflect a DOL attitude that SECs are not 

soundly based and that HHS and the Advisory Board can’t be 

4

counted on to fight off claims regarding shoddy radiation monitoring data. 

A February 2005 memo to the Secretary of Labor states, ‘‘HHS 

has acquiesced to claimant, Advisory Board, and political pressure.’’ 

An August 2005 memo accuses NIOSH of ‘‘capitulation,’’ and then 

states with respect to efforts to cut back the number of cancers 

under the HHS SEC rule, ‘‘NIOSH is taking a tremendous amount 

of heat on this issue and indications are they are looking for ways 

to crumble.’’

A February 2005 statement shows disdain for the Advisory 

Board, complaining, ‘‘Thoughtful deliberation by the board, not 

something toward which they’ve shown a tendency anyway, will be 

extremely limited under these conditions.’’

While publicly professing no interest in the outcome of SEC recommendations on Mallinckrodt facility to Senator Kit Bond and the 

Advisory Board, the internal DOL comments state, ‘‘The final vote 

is now projected for the board’s next meeting in early July. It may 

be that at least two current members of the board will be replaced 

by new appointees by then, which could significantly change the 

dynamic of the board.’’ Such a change is critical since the board 

and its contractors seem bent on demanding that NIOSH’s processes be far more perfect than is possible, failing which SECs 

would be demanded everywhere. 

When briefing the top officials at DOL, staff suggested inflated 

cost estimates for new SEC designations. For example, they stated, 

‘‘The 10-year added cost for the Iowa SEC alone has been projected 

at $1 billion.’’ The expenditures for the Iowa SEC have been about 

$49 million as of November 12, 2006. This is 5 percent of the DOL 

staff cost estimate. This cost is unlikely to grow much more because there has already been intensive claimant outreach, and new 

claim filings have dropped off significantly. 

With respect to Mallinckrodt, DOL staff wrote, ‘‘The 10-year added cost for a Mallinckrodt SEC was about $500 million.’’ However, the cost is $17.7 million or about 3.4 percent of the amount 

projected. 

Mr. Hallmark maintains this alarmist tone in memos to the Secretary where he states, ‘‘The stability of the current Part B program is at risk.’’

DOL has dismissed the concerns about their actions as no longer 

relevant since DOL has ceased and desisted from implementing the 

passback in May 2006. If this is the case, the Committee will need 

to review additional documents. The culture of disdain toward 

claimants and NIOSH appears to be so embedded in DOL that it 

will be important to take a hard look at what has transpired since 

the OMB passback first saw the light of day in order to confirm 

DOL’s declaration. 

We will need to look at the DOL’s internal communications since 

our February 2006 request. As such, I will be working with the 

Ranking Member after the close of this hearing to send a letter to 

both DOL and NIOSH, seeking to update the request previously 

made to the two agencies and to reiterate the need to produce the 

documents which have been withheld. 

We will hear from DOL, NIOSH and GAO today. We had invited 

the DOL ombudsman; however, we have been advised that this poVerDate 0ct 09 2002 11:23 Jan 25, 2007 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 F:\WORK\IMMIG\120506\31312.000 HJUD1 PsN: 31312
5

sition is vacant and has been vacant since the beginning of October. We are disappointed that none of the staff from that office will 

be made available today because the reports to Congress and the 

recommendations they can offer are important in formulating reform legislation. 

We want these hearings and a detailed record left behind to create a road map for the 110th Congress to follow up on areas that 

need further inquiry and to enact reforms. To the bean counters, 

I would remind you that these aren’t normal beans that you are 

counting. These funds are a small acknowledgment of the sacrifice 

of workers whose lives were put at risk to make this country safe 

enough for us to sit in our office counting beans. Show some respect and gratitude is my request. 

To the workers I say a heartfelt thank you; thank you for your 

service to our Nation. There are many of us who do appreciate your 

and your families’ contribution to our world and want to do right 

by you. I would like to think that this Committee’s hearings and 

oversight efforts have contributed to that goal, and I consider it a 

privilege to have led that effort in this Congress. I only wish more 

of the problems of the program could have been solved conclusively. 

Finally, I want you to know that I have confidence that there are 

many people in this Government and this country who will continue to fight for you to get the respect and care you deserve for 

all you have done for us. 

At this time, I recognize the gentlelady from Texas, the Ranking 

Member, for purposes of an opening statement. 

Ms. JACKSON LEE. Let me thank the Chairman very much and 

let me acknowledge the leadership that the Chairman has given to 

this issue. He certainly has created an important road map for the 

110th Congress, but more importantly he has created a superhighway of compassion and concern for those who have been left 

alongside the roadway that have given of themselves as great patriots representing their different regions across America. 

This legislation and this concern is not focused on one region or 

another; it is really a question of people and the contributions people are willing to give on behalf of their beloved country, America. 

The Chairman has eloquently acknowledged that our task is to 

help those individuals. 

And, Mr. Chairman, I would like to personally thank you and acknowledge—I believe, unless you call for a series of hearings over 

the next 48 hours, this may be, in fact, your last hearing as the 

Chairman of this Subcommittee. As the Ranking Member, I want 

to particularly place in the record my appreciation for the moments 

of our agreement, and certainly moments that we have disagreed 

but we have not been disagreeable. You have led this Committee 

with distinguished service, and I know that I speak for all of my 

colleagues who are represented by both sides of the aisle with a 

heartfelt thank you. 

In particular, let me acknowledge that we hope that we will have 

a bill on the floor that you have been carefully guiding, J1 visas, 

which may sound like a small minor point, but thousands of rural 

communities are waiting upon doctors that they do not have that 

may be provided assistance by the J1 visa. I thank you for working 

with me and for our working together on that. 

6

As well, we have worked, certainly, on this legislation dealing 

with occupational illness compensation, and you have been detailed 

and thorough in the, I think, broken system of Government that 

has failed to respond to the needs of these individuals. 

Let me also say that though immigration has been a challenge, 

we have worked together on anti-alien smuggling legislation; our 

concern about securing the border is, I think, the same. 

So again might I add for the record a heartfelt appreciation for 

the service that you have given to the Judiciary Committee, to the 

Subcommittee on Immigration and other Committees that you have 

served, and certainly, most importantly, to the Nation. Thank you, 

Mr. Chairman. 

Let me indicate as I have always said at hearings like this that 

we hope that our work will generate solutions, and I hope the distinguished witnesses who are here today will find a way to either 

facilitate the solution or take messages back to their various agencies. And let us be different than what we are perceived, and that 

is bureaucrats, obstructionists sometimes, and uncaring of the 

needs of those whom we impact. 

I believe we can find a solution, as the Chairman has indicated, 

and it is long overdue. The last hearing, we had the daughter of 

one of the victims, since passed; and to hear stories of the lack of 

resources, compensation, and to understand how this could have 

happened to their loved one really pulls at your heartstrings. 

The good news is, this can be fixed, and we should fix it. This 

is the fifth in a series of hearings on Subtitle B of the Energy Employees Occupational Illness Compensation Act, and Subtitle B covers occupational illness associated with making nuclear weapons. 

Workers who have contracted one of those illnesses may be eligible 

for a lump sum payment of $150,000 and prospective medical benefits. 

Let me insert into the record, as well, just the occurrence in the 

past 2 weeks of the loss of the Russian spy. The determination, 

though not final, is the obvious ingestion of some sort of nuclear 

product. I only cite that example so that it relates to your concept 

of how devastating contact with nuclear material can be to a 

human being. Obviously, it is suggested that this was ingested and 

this individual was poisoned, but the time of his demise was quick 

and it was vicious. 

And so we might just associate what some of these victims, who 

have had exposure working for their nation on nuclear weapons, 

might have been impacted by—the minimal impact that you can 

imagine of this exposure, to be ill and not have the ability to be 

compensated. 

In processing radiation-related cancer claims the National Institute for Occupational Safety and Health is required to estimate a 

worker’s exposure to radiation. If this is not feasible, but it is clear 

that the health of workers may have been endangered by radiation 

exposure, the workers can petition to be designated as members of 

a Special Exposure Cohort, which establishes an unrebuttable presumption that certain cancers are work-related. 

In an internal passback memorandum from the Office of Management and Budget to the Department of Labor, OMB states that the 

Administration will convene a White House-led interagency work 

7

group to develop options for administrative procedures to contain 

the growth in the costs of the compensation program. That was the 

first mistake and the first wrong direction, and it should be corrected and it should be pulled back. It was a passback memorandum; it should have a pullback memorandum. We should begin 

to formulate how we provide compensation to these victims. 

The series of five hearings addresses concerns about the cost containment measures recommended in the passback memorandum 

because it cites particularly that we are concerned about costs over 

the lives and health conditions of the victims. That is wrong; we 

need a pullback memorandum. 

Government witnesses have testified that cost containment is not 

a factor in deciding which claims to pay, and they have said that 

the recommendations in the passback memorandum have not been 

implemented. The Administration may not be implementing the 

specific recommendations in the passback, but that does not mean 

that no efforts are being made to contain the cost of the program. 

And the Chairman has detailed the ups and downs this Committee 

has had in trying to secure information and trying to be responsive 

and being able to really move this solution forward. 

The hesitancy of the agencies, frankly, has inhibited us from getting legislation to the floor, which means that we are now going to 

have to work into the 110th Congress, which I hope will move 

quickly on this issue. 

At the previous hearing on November 15, 2006, Richard Miller, 

a senior policy analyst for the Government Accountability Project, 

testified that DOL is employing cost containment measures in spite 

of their representations. For instance, DOL has criticized the details in most of the proposed SEC designations in what he believes 

to be an effort to reduce benefits, and it has changed the regulations governing SEC petitions to make it more difficult to qualify. 

Dr. John Mauro, the project manager for S. Cohen & Associates, 

testified at the same hearing that the Administration recently 

made it more difficult for SC&A to access data and records when 

it reviews a recommendation from NIOSH to deny an SEC application. This makes it more difficult to evaluate the records which are 

the basis for the denial recommendations. 

Cost containment is not the only problem that has come to our 

attention at these hearings. Another witness at the previous hearing, Kathy Bates, described the difficulties her family has had in 

trying to obtain compensation for the death of her father from cancer caused by work site radiation exposure. The initial claim was 

rejected on the basis of radiation exposure records that did not pertain to her father. 

Ms. Bates brought this to the attention of the office processing 

the claim and received assurances that the Social Security card 

number would be corrected. Nevertheless, when a new decision was 

rendered, it denied the claim again, using the same incorrect Social 

Security number to identify her father’s records. 

This is not befitting of America. This is not only an embarrassment, but it really undermines families and certainly continues to 

disregard the service of these patriots as they worked throughout 

the years. Ms. Bates concluded that quality control measures are 

needed for the process of evaluating claims, and I agree. 

8

So this is not a question of cost containment; this really is a 

question of getting the job right, fixing the process, giving the right 

Social Security number, and responding to the needs of victims. 

I have introduced a bill to address the cost containment issue, 

the Energy Employees Occupational Illness Compensation Program 

Improvement Act of 2006, H.R. 5840. Among other things, it would 

shift the authority from making Advisory Board appointments to 

the Congress, require the HHS Secretary to abide by the recommendations of the Advisory Board unless there is a clear error. 

It would establish enforceable conflict-of-interest requirements with 

respect to NIOSH’s dose reconstruction contractors. It also would 

eliminate unfairness by making benefits available to some subcontractor employees who worked in atomic weapons employer facilities, but presently are not covered by the act. 

These workers made a commitment to our country, to their beloved America, when the country needed them most. Now, some 

very many years later, it is our turn to help them in their time of 

need, to help their families in their time of need and to make good 

on what patriotism is all about, a love of one’s country; and the 

country, of course, upholding its duty and commitment to her people. 

I yield back. 

Mr. HOSTETTLER. I thank the gentlelady. And I thank you for 

your kind comments and thank you for your work over the last 4 

years and look forward to your progress in the upcoming Congress. 

I’d now like to introduce members of our panel. Shelby Hallmark 

has served as the Director for the Office of Workers’ Compensation 

Programs, or OWCP, for the Department of Labor since June 18, 

2001. He had previously served as Acting Director and Deputy Director for OWCP. Mr. Hallmark has served in various positions at 

the Department of Labor since 1980, beginning his career in the 

Employment Standards Administration. 

He holds a B.A. in history and philosophy from the University 

of Texas at Austin and received an M.A. from that university’s Institute for Latin America Studies. 

John Howard is the Director of the National Institute for Occupational Safety and Health at the Department of Health and 

Human Services. Prior to his appointment as Director, Dr. Howard 

served as Chief of the Division of Occupational Safety and Health 

in the California Department of Industrial Relations from 1991 to 

2002. 

Dr. Howard received his Doctor of Medicine from Loyola University of Chicago in 1974, his Master of Public Health from the Harvard School of Public Health in 1982, his Doctor of Law from the 

University of California at Los Angeles in 1986, and his Master of 

Law in Administrative Law from the George Washington University in Washington, DC, in 1987. 

Daniel Bertoni is Acting Director for worker protection issues in 

the United States Government Accountability Office’s Education, 

Workforce and Income Security team, or EWIS. Mr. Bertoni began 

his career with GAO in 1989 as an analyst in the New York region 

and is currently assigned to GAO’s Washington, DC, headquarters. 

Over the course of his career, Mr. Bertoni has led numerous management, operational and program integrity reviews at the DepartVerDate 0ct 09 2002 11:23 Jan 25, 2007 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 F:\WORK\IMMIG\120506\31312.000 HJUD1 PsN: 31312
9

ment of Labor, Social Security Administration and the Internal 

Revenue Service. Mr. Bertoni holds a Master’s degree in political 

science from the Rockefeller School of Public Affairs and Policy in 

Albany, New York. 

Gentleman, if you would please stand and raise your right hand 

and take the oath. 

[Witnesses sworn.] 

Mr. HOSTETTLER. Let the record reflect that each witness responded in the affirmative. 

Gentlemen, you will see—and you’re all, I’m sure, well aware 

of—the lighting system that we have here. Without objection, your 

opening statements, written statements, will be made a part of the 

record; and we ask that you keep as close to the 5 minutes as possible in order for Members to ask questions. 

Mr. Hallmark, you will please begin. You’re recognized for 5 minutes. 

TESTIMONY OF SHELBY HALLMARK, DIRECTOR FOR THE OFFICE OF WORKERS’ COMPENSATION PROGRAMS, U.S. DEPARTMENT OF LABOR 

Mr. HALLMARK. Thank you, Mr. Chairman. I’m pleased to appear 

today to discuss the Department of Labor’s efforts to implements 

EEOICPA. 

The veterans of the Cold War have been waiting for a long time, 

and we’re proud of our ability to get both Part B and the new Part 

E of this act up and running quickly. DOL staff are dedicated to 

adjudicating claims and providing benefits in a prompt, fair and 

consistent way and in accord with the law as enacted by Congress. 

We have set challenging performance goals and consistently exceeded them, and we’re driving hard to finish resolving all the 

backlogged cases. 

The results demonstrate that the promise of the statute is being kept. In 5 years we’ve issued $2.4 billion to 22,000 beneficiaries. 

Nearly 75 percent of all cases have received at least one final decision from DOL. Less than 6,000 cases remain in the NIOSH dose 

reconstruction queue, and that dose reconstruction process has resulted in nearly $550 million in benefits so far. 

Under Part E, we’ve issued an initial decision on 80 percent of 

the 2,500 cases DOL inherited from the Department of Energy, and 

nearly $520 million has already been awarded under that part. 

These statistics show that the EEOICPA program is working. We 

haven’t yet reached steady state and benefit outlays are still growing as we work through the remaining backlogs. The program as 

a whole is moving forward, but those who haven’t yet received a 

final decision or who have had difficulties with the program may 

still be disappointed. 

We’ve adopted numerous strategies to help claimants navigate 

this complex program. These range from extensive public outreach 

efforts to one-on-one assistance from our resource centers and our 

district offices. 

Our staff directly gather employment, exposure and medical evidence on virtually every claim, greatly easing the burden on claimants. For Part E, we’re building extensive site exposure matrices 

which we match against medical data sets to link those exposures 

10

to specific medical conditions. These DOL-provided evidentiary 

tools won’t prove eligibility in every case, but they help in a very 

large majority of them. 

Mr. Chairman, previous testimony before this Subcommittee alleged DOL is anticlaimant and has carried out a covert cost containment effort. These charges are simply not true. They arose 

from options in a now disavowed internal OMB memo. OMB has 

testified before this Subcommittee that the Administration is not 

pursuing those options, and we are not pursuing them nor are we 

attempting to usurp NIOSH’s role. 

As the lead agency in the administration of the EEOICPA, we’re 

responsible for issuing fair, equitable decisions to claimants. This 

requires close coordination and scrutiny of the activities of other 

agencies, including NIOSH. Our goal in reviewing NIOSH inputs 

is to ensure that the final decisions based on them are accurate 

and consistent and can be sustained in court if challenged. 

We’ve returned nearly 2,000 dose reconstructions to NIOSH over 

the past 3 years for rework, but 88 percent of those cases otherwise 

would have been denied. We were nearly always giving the claimant a second chance, certainly not an anticlaimant status. 

Neither have we conducted a covert cost-cutting campaign regarding the Special Exposure Cohort. Starting in 2005, I publicly 

urged the Advisory Board to ensure that the rationale for each new 

SEC class it considers comports with the statute, is clearly explained, and is capable of consistent application. 

I also noted that SEC class declarations have negative impacts 

on some claimants whose cancers are not on the list that conveys 

presumptive eligibility. These concerns are and continue to be 

about equity, not about cost. 

DOL also works with NIOSH to ensure that the definition of 

each class is clear and can be reasonably interpreted for adjudication purposes to avoid unintended outcomes and expedite the adjudication of these cases. We have a fiduciary responsibility to ensure 

that payments are lawful, but our chief concern is that the process 

yields reasonable and defensible outcomes across the entire complex now and for years to come. That has been and remains our 

focus. 

In summary, the record of our administration of the act is positive. Billions of dollars have been awarded, backlogs are rapidly diminishing, approval rates far exceed original projections, and litigation remains remarkably low. There’s much to be done. We must 

eliminate the remaining backlogs and we must strengthen our 

overall delivery of services, but on balance, the EEOICPA program 

is unfolding as promised and can be expected to continue to do so. 

I’ll be glad to answer your questions when the time comes. 

Mr. HOSTETTLER. Thank you. 

[The prepared statement of Mr. Hallmark follows:]

PREPARED STATEMENT OF SHELBY HALLMARK

Mr. Chairman, and Members of the Committee, my name is Shelby Hallmark. I 

am the Director of the Office of Workers’ Compensation Programs (OWCP), a component of the Employment Standards Administration (ESA), Department of Labor 

(DOL). 

I am pleased to appear before the Subcommittee today to discuss our efforts to 

fulfill the promise made to veterans of the cold war with the enactment of the EnVerDate 0ct 09 2002 11:23 Jan 25, 2007 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 F:\WORK\IMMIG\120506\31312.000 HJUD1 PsN: 31312
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ergy Employees Occupational Illness Compensation Program Act (EEOICPA). Since 

the initial implementation of this program, DOL staff have dedicated themselves to 

ensuring that we adjudicate claims and provide benefits to eligible workers and 

their survivors in a manner that is timely, fair, consistent, and according to the Law 

as enacted by Congress. We believe the results demonstrate that the promise of the 

statute is being kept. 

There have been assertions made in previous hearings before this Subcommittee 

that the Department of Labor has been working to curtail the promise of the Act. 

That is not the case, and I will also present evidence that we are, in fact, administering the program in the best interest of the workers and survivors for which it 

was intended, and as outlined in the law. 

PROGRAM ACCOMPLISHMENTS

The EEOICPA has been and continues to be an interdepartmental activity, involving the coordinated efforts of the Department of Energy (DOE), Health and Human 

Services (HHS), Department of Justice (DOJ), as well as DOL. As the lead agency 

for EEOICPA, we are proud of the overall progress we’ve made in implementing 

both Parts of the Act. 

The Department of Labor has administered Part B of the program since its inception in 2001. In October 2004, Congress chose to entrust DOL with a new facet of 

EEOICPA, Part E, to redress issues with the earlier Part D program. Throughout 

the brief history of the Act, DOL has worked hard to fairly and effectively administer these complex programs, according to the requirements of the statute. In doing 

so, we have set challenging performance targets to ensure that workers and their 

families, who have waited for so long, receive prompt and accurate decisions. Although we have much work still to do, we have consistently exceeded our performance goals and will continue to press ahead as quickly as possible until all backlogged cases are resolved. 

The EEOICPA program is still new and evolving, but a great deal has been accomplished. Workers who haven’t yet received a final decision, or who are unhappy 

with a decision, may question our success in fulfilling its promise, but a full and 

fair analysis of the program indicates that it is moving forward effectively. 

Since the inception of the program, claims have been filed for EEOICPA benefits 

on behalf of more than 58,000 individual workers. Of those, 43,000, or nearly 75%, 

have received at least one final decision from DOL (individuals can receive multiple 

decisions under Part B and Part E). More than 22,000 individuals have received in 

excess of $2.25 billion in lump sum compensation under Part B, Part E or both, as 

well as $133 million in medical benefits. 

PART B ACCOMPLISHMENTS

The EEOICPA was initially enacted on October 30, 2000. It established a federal 

payment program (Part B) under which DOE contractor employees and certain 

other employees and their eligible survivors are entitled to receive federal compensation and medical benefits for radiation-induced cancer, beryllium disease or 

silicosis. Executive Order 13179 of December 7, 2000, assigned primary responsibility for Part B administration to DOL. DOL’s delegated responsibility included addressing issues raised in the claims process regarding dose reconstructions conducted by the National Institute for Occupational Safety and Health (NIOSH). DOL 

moved swiftly to issue Interim Final Regulations in May 2001, and established a 

fully functioning program on schedule. Secretary of Labor Elaine Chao presented 

the first EEOICPA check on August 9, 2001. 

To date, more than 76% of Part B cases have received a final decision, and payouts are approaching $1.75 billion. Another 11% of Part B cases are at various 

stages of dose reconstruction with NIOSH. The vast majority of the remaining 7,000 

cases were received during the past year and are moving promptly through the various stages of the adjudicatory process. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has met its timeliness goals for processing 

Part B cases every year, and although the time to complete Part B actions has increased in 2006 due to the addition of the new Part E program, the average time 

to issue initial decisions was 175.2 days, less than the program standard of six 

months. In FY 2006, DEEOIC’s Final Adjudication Branch achieved an 88% rate for 

issuing final Part B decisions within established program standards. Although these 

complex occupational disease claims take time, we are generally pleased with the 

speed of adjudication once dose reconstruction is completed. 

Some have cited the approval rate for Part B cases, which are subject to the dose 

reconstruction process, as evidence that the intent of the statute is not being realized. To date, approximately 29% of such cases have received a final decision conferVerDate 0ct 09 2002 11:23 Jan 25, 2007 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 F:\WORK\IMMIG\120506\31312.000 HJUD1 PsN: 31312
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ring benefits, and nearly 5,000 claimants have received over $534 million in benefits 

via this process. To assess these outcomes, one must understand the choices Congress made in establishing the Part B program’s approach to adjudication of 

radiogenic cancer claims. 

When Congress was considering the legislation that became Part B of EEOICPA, 

it was confronted with a difficult choice concerning how the government should determine whether a cancer was sufficiently work-related to justify compensation 

under the new compensation program. Decades of experience demonstrated that requiring medical evidence that an individual cancer was related to radiation exposure was not a workable solution because of the inability of scientists or doctors to 

determine the specific cause of any particular cancer. Therefore, Congress chose to 

use a statistical epidemiological approach requiring a claimant to establish that a 

worker’s cancer was ‘‘at least as likely as not’’ related to workplace exposure when 

that probability was calculated using a version of statistical tables previously developed by the government. Since there was substantial evidence that recordkeeping 

at many covered facilities was less than comprehensive, it was understood by the 

sponsors of the legislation that the process would not be perfect but would be based 

upon estimation and probability. 

In view of previous experience with such statistical tables, the fact that some 

types of cancer have been found not to be significantly radiogenic, and the fact that 

the National Cancer Institute estimates that the incidence of cancer in the general 

population is over 40%, it was clear that many cancers would be found to have less 

than a 50% probability of work-related causation and would thus not lead to a decision to compensate the claimant. However, Congress did specify in the legislation 

that a 99 percent confidence interval be used in the calculation. (For each specific 

dose reconstruction there is a range of possible resulting probabilities of causation. 

This means that if only one percent of these possible outcomes are 50 percent or 

more, the claim is awarded benefits.) This provides a very large margin for error 

in favor of claimants. Nevertheless, the DOE initially estimated, based on their 

knowledge of exposures in the complex and epidemiological studies of cancer incidence, that less than 5% of nuclear weapons workers who incurred cancer would 

reach the 50% probability of causation threshold. 

In practice, the strenuous efforts of NIOSH to be fair to claimants and resolve 

ambiguities in their favor have resulted in the current approval rate of 29% for such 

claims, far in excess of any predictions when the legislation was being considered. 

Those whose claims are denied often feel strongly that the cancers involved were 

caused by work-related exposure to radiation, and one cannot help but sympathize 

with individuals diagnosed with cancer, and with their families. However, DOL 

must make determinations consistent with the requirements of the statute. 

PART E ACCOMPLISHMENTS

In addition to administering Part B of the Program, DOL has responsibility as 

the lead agency for Part E (which replaced Part D) of the Act. Congress initially 

included a second program in EEOICPA, Part D, which required DOE to establish 

a system by which DOE contractor employees and their eligible survivors could seek 

assistance in obtaining state workers’ compensation benefits. In the Ronald W. 

Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. 108–375 

(October 28, 2004), Congress abolished Part D of the EEOICPA, created a new Part 

E in its place, and assigned administration of Part E to DOL. Part E established 

a new system of federal payments for DOE contractor employees and eligible survivors of such employees. Part E benefits were also extended to uranium miners, 

millers and ore transporters covered by Section 5 of the Radiation Exposure Compensation Act (RECA). Congress specified that DOL prescribe Interim Final Regulations implementing the amendments to EEOICPA with 210 days of enactment. 

When the amendment was passed in October 2004, there were more than 25,000 

cases pending with the old Part D program, many for more than four years, thus 

creating an instant backlog for the new program. Within two months of enactment, 

DOL began providing compensation under the newly established Part E of the 

EEOICPA, using preliminary procedural guidance. Interim final regulations were 

implemented by May 2005, within the deadline established by Congress. Since its 

inception, the DEEOIC has provided more than 4,000 employees or their families 

with Part E compensation payments exceeding half a billion dollars. In addition, 

DOL set specific Part E targets for fiscal year 2005 and fiscal year 2006, to issue 

payments and make initial decisions on backlogged cases. DOL exceeded these goals 

in both years, issuing over 1,500 payments in fiscal year 2005, and issuing initial 

decisions on more than 75% of the backlogged cases by the end of fiscal year 2006. 

13

By the end of 2007, the new program will have eliminated the backlog and will be 

current in processing all incoming claims. 

Aside from the cases inherited from Part D, during FY 2006 DOL was able to 

reach initial determinations on new Part E claims within program standards 73% 

of the time, with the average time required being 132 days. 

For greater efficiency, simplicity, and speed, DEEOIC now adjudicates all claims 

for benefits under Parts B and E of the EEOICPA as one EEOICPA claim. Where 

possible, decisions are issued that address both Parts B and E simultaneously. However, partial decisions may also be issued in cases where benefits under some provisions can be awarded but claims under other provisions require further development. Once the backlog of inherited claims has been fully resolved, we will direct 

maximum attention on driving down the time to process each step of these claims, 

while continuing to work to improve the quality of our decisions. We are focused 

on doing everything we can to speed the processing of claims under this program, 

and to getting compensation and benefits to all eligible injured workers and their 

families. 

DOL CLAIMANT ASSISTANCE AND OUTREACH

The complexity involved in EEOICPA—the exposures and diseases involved and 

the science required to relate them to one another, the multiple benefits available 

and separate eligibility rules under the two Parts, and the multiple agencies engaged in delivering the program—as well as the advanced age of many current and 

potential claimants, necessitate extraordinary effort to inform and assist the affected community. DOL has utilized a wide range of methods to educate the public 

and provide specific assistance in completing forms and navigating through the 

process of submitting evidence and other information. 

DOL has undertaken significant outreach activities in an effort to provide detailed 

information to the employees or survivors who may be eligible for benefits. As a first 

step, DOL established resource centers (now 11 in number) located throughout the 

country, in which knowledgeable staffs work one-on-one with claimants to file appropriate forms and submit information to DOL relevant to those claims. Information is provided face-to-face and via toll-free telephone service. Resource center 

staffs provide all relevant information at the initial stages of claim submission and 

personally answer any questions that arise. They also participate in numerous community events in their jurisdictions to get the word out to various groups that may 

include potential claimants. 

To attract maximum attention to the program, DOL held well-publicized Town 

Hall meetings throughout 2001–2005 in various locations throughout the country 

where there was a significant population of individuals currently or formerly employed at covered facilities. DOE and NIOSH also participated in most of these 

meetings, providing information and answering questions about their responsibilities under the statute. These meetings were well attended by employees, survivors 

and special interest group members. DOL continued to conduct these meetings during 2006 as new regulations and procedures were developed. 

In addition to educating the public about benefits, DOL has forged key relationships with various entities that have information that may be pertinent in the successful adjudication of claims. DOL understands the difficulties claimants may have 

in locating employment and exposure records needed to issue fair decisions. As a 

result, DOL has contracted with the Center to Protect Workers Rights (CPWR) to 

track down information about construction workers who may have been exposed at 

DOE sites but whose employment information was not captured in DOE prime contractor datasets. We also work with the DOE Former Workers Program, and with 

other contractors, to locate appropriate records which are not immediately available 

through DOE. These valuable relationships help relieve the burden on the claimants 

to locate these records. In addition, DOL has developed a site exposure matrix, 

which is a detailed database containing information concerning the types of chemicals that may be found at a given covered facility. This matrix is utilized by claims 

staff in the district offices to determine toxic exposures. These relationships and 

tools have been significant in reducing the amount and types of information required to be submitted by claimants. 

In an effort to further assist claimants in the processing of claims, DOL has contracted with over 200 physicians throughout the country to provide medical evidence 

for use in issuing decisions related to causation and impairment issues. These district medical consultants work with DOL to review particularly difficult claims, or 

where claimants have no access to physicians able to provide the necessary medical 

evaluations, and to assist DOL staff in issuing accurate and thorough decisions. 

14

Each of the four DEEOIC district offices and its Final Adjudication Branch maintain toll-free telephone lines and receive and promptly respond to thousands of inquiries each year. 

These efforts demonstrate DOL’s dedication to reaching out to the public, and to 

alleviating burden on claimants by assisting them in perfecting their claims at all 

stages of the adjudication process. Those who have experienced difficulties in navigating this complex program may be disappointed that we have not done more, but 

we are working continuously to further improve that assistance, and we urge claimants and family members who are confused or uncertain about the meaning of program documents or how they should proceed to contact us directly to address those 

concerns. 

DOL COORDINATION WITH OTHER AGENCIES

Given DOL’s role as lead agency in the administration of the EEOICPA, significant coordination is required with other federal agencies, including NIOSH, DOE, 

and DOJ. NIOSH (a component of HHS) supports the program by conducting radiation dose reconstruction and handling requests for expansion of the Special Exposure Cohort (SEC). The DOE and many of its contractors supply employment and 

exposure information. The DOJ coordinates the coverage of certain uranium workers 

also covered under the Radiation Exposure Compensation Act (RECA). We’ve 

worked from the beginning to coordinate all these agencies’ EEOICPA activities so 

that the program functions as it was intended. 

A key element in processing a great number of Part B claims is the NIOSH dose 

reconstruction process. Although NIOSH is responsible for conducting the research 

necessary to provide claimants and DOL with a detailed dose reconstruction report 

estimating work-related radiation exposure, the ultimate responsibility for issuing 

recommended and final decisions rests with DOL, utilizing the NIOSH dose reconstruction and other evidence in the file. (See the discussion below on cases returned 

to NIOSH for rework.) NIOSH requests input and claimant signatures on dose reconstruction documents, but the signature only acknowledges receipt of the document and does not constitute concurrence or objection. DOL’s Final Adjudication 

Branch (FAB) is a claimant’s only opportunity, prior to issuance of the DOL decision, to contest a dose reconstruction. Consequently, it is imperative that DOL thoroughly review and understand the dose reconstruction reports provided by NIOSH 

such that we may issue fair and equitable decisions to the claimants. 

ALLEGATIONS THAT ATTRIBUTE COST-CUTTING MOTIVES TO DOL

In testimony provided at previous hearings before this Subcommittee, it has been 

alleged that DOL has attempted to carry out a covert budget cost containment effort. As I testified on March 1, 2006, this is simply not the case. This issue initially 

arose in the context of an Office of Management and Budget (OMB) 2007 budget 

passback document which outlined various options related to the NIOSH SEC and 

dose reconstruction processes. As the Administration has previously testified, it is 

not pursuing any of these options. 

As indicated above, DOL, as lead agency in the administration of the EEOICPA, 

is ultimately responsible for issuing fair and equitable decisions to claimants. This 

requires close coordination and analysis of activities undertaken by other agencies 

involved in the process, including NIOSH. DOL’s only goal in reviewing NIOSH dose 

reconstructions is to ensure that final decisions are accurate, fair and consistent. 

Performance at the DOL and NIOSH technical staff level provides significant insight into the workings of both agencies on day-to-day program coordination activities and DOL’s effort to ensure fairness and uniformity in program decisions, while 

further demonstrating that DOL is in no way attempting to administer EEOICPA 

in a manner that is driven by cost containment. Two areas that are demonstrative 

of program performance are DOL decisions requesting NIOSH reworks of completed 

dose reconstructions, and DOL decisions in addressing claimants’ technical objections to NIOSH dose reconstructions. The latter is of utmost importance since the 

only avenue for claimants to object to the NIOSH dose reconstruction procedures is 

through the DOL claims adjudication process. 

REWORKS OF NIOSH DOSE RECONSTRUCTIONS

As part of the DOL claims process, upon receipt of a dose reconstruction report 

from NIOSH, claims staff reviews the reports for accuracy and consistency prior to 

issuing recommended or final decisions on cases. Sometimes they recognize anomalies in the reports which require further analysis. For example, a dose reconstruction may have been conducted based on an incorrect diagnosis code, or additional 

evidence received after the dose reconstruction was completed by NIOSH may reveal 

15

expanded employment, or medical evidence has been submitted revealing that an 

employee had an additional cancer. In these instances, the claims staff either at the 

district office level or at the Final Adjudication Branch must determine whether a 

claim should be returned to NIOSH for a ‘‘rework.’’ The DEEOIC Procedures, 

(EEOICPA Bulletin No. 04–01, issued in 2003) state the following:

‘‘The DEEOIC Health Physicist serves as the central liaison between NIOSH 

and DOL on all dose reconstruction related issues. All requests for reworks of 

dose reconstruction reports must be forwarded to the DEEOIC Health Physicist 

for review. The DEEOIC Health Physicist will review the request for rework 

and determine whether a rework is required. The DEEOIC Health Physicist 

will contact the claims examiner if additional information is needed to make a 

determination, which may include requesting the case file. If the information 

would change the outcome of the dose reconstruction or affects the accuracy of 

the case, the request for rework will be referred to NIOSH. If the information 

would not change the outcome of the dose reconstruction, the DEEOIC Health 

Physicist will send an e-mail to the claims examiner and the district office 

NIOSH liaison explaining the rationale for not continuing the review of the dose 

reconstruction report. When the claims examiner receives this response, he/she 

must [proceed with the appropriate calculation for adjudication of the claim].’’

Between July 25, 2003 and November 16, 2006, DOL has returned 1,891 cases 

to NIOSH to have the dose reconstruction redone. The vast majority (1,677 or 88 

percent) of these ‘‘reworks’’ have been cases in which the probability of causation 

(PoC) based on the NIOSH dose reconstruction was below 50 percent and thus 

would result in a denial of benefits. In these cases, the issues to be addressed by 

NIOSH would have the potential to increase the dose and thus may result in a PoC 

greater than 50 percent resulting in eligibility for benefits. There were only 224 

cases returned for rework in which the PoC was initially over 50 percent with only 

10 of these returned due to technical issues related to NIOSH’s application of methodology. These statistics reveal that, if anything, DOL’s analysis of dose reconstruction reports leans towards the side of the claimant, generally resulting in the potential for a more favorable decision. 

FAB REMANDS

In addition to reworks, DOL also reviews dose reconstruction reports at the final 

adjudication level if a claimant raises a technical objection to a dose reconstruction, 

or if the Final Adjudication Branch hearing representative identifies a possible 

error. Claimants may either raise these objections in a written statement to the 

hearing representative or through an oral hearing. If a hearing representative receives such an objection or otherwise identifies a dose reconstruction issue, the case 

is forwarded to a DEEOIC Health Physicist to determine whether the objection merits returning the case to NIOSH for revision of the dose reconstruction. 

Statistics regarding the resulting remand orders issued by the Final Adjudication 

Branch (FAB) also demonstrate the absence of any cost-cutting motive in the DOL 

process. From the program’s inception, FAB has issued 3,149 remands of Part B 

cases, of which 70 percent (2,198 cases) were cases in which a recommended decision had been issued to deny benefits. Following the remand, the district office reviews the case and issues a new recommended decision. Since denials make up 63% 

of all recommended decisions on Part B cases, but 70% of all remands involve denied cases, FAB remands a higher ratio of denials than approvals. Only 30 percent 

(951 cases) of remanded cases had a recommended decision to approve benefits initially, of which only 17 percent were remanded due to issues with a dose reconstruction. 

DIRECTOR’S ORDERS TO REOPEN

Finally, a review of Director’s Orders issued to reopen claims also reveals a careful attention to, and concern for, claimants’ interests. A Director’s Order is issued 

after a final decision by the FAB when a review of the claim or additional evidence 

reveals that the final decision should be vacated. This can occur based on a claimant’s request for a reopening, or based on the Director’s review of the claim for any 

reason. For example, information provided in a subsequent dose reconstruction report for another claimant may indicate that dose was missed for previously decided 

cases, and the Director has reopened such cases so that NIOSH can determine if 

the additional exposures also apply to those cases. DOL’s performance relative to 

Director’s Orders for reopening claims clearly demonstrates that DOL is committed 

to paying benefits when claimants are entitled. Since the inception of EEOICPA, 

548 Director’s Orders have been issued. With a very few exceptions, all Director’s 

16

Orders to date have been issued on cases that have been denied by the FAB, 

vacating the decision and returning the case to the district office for further development or acceptance. The only approved cases that have been reopened have occurred 

when an employee dies before receipt of benefits. In these cases, a Director’s Order 

is issued to vacate the final decision and offer the opportunity for an eligible survivor to apply for benefits. Additionally, most Director’s Orders (269 cases) were 

issued without the claimant requesting such action, demonstrating the program’s 

commitment of the program to ensure accuracy and deliver all benefits to which 

claimants are entitled. 

SEC CLASS DETERMINATIONS

The creation of new SEC classes requires close coordination between DOL and 

NIOSH to determine which cases at the site in question have been affected by the 

new class and which continue to require dose reconstruction. Since NIOSH and the 

Advisory Board began discussions about the declaration of new classes, DOL has 

continually worked to ensure that the definitions of the class membership and the 

rationales presented as the basis for the new classes are clear, consistent, and fair. 

Prior testimony before this Subcommittee asserted that DOL opposed SEC classes 

or sought to narrow them out of a purely ‘‘budget driven’’ agenda. Again, as I testified in March, this is not the case. Although DOL has a fiduciary responsibility with 

respect to the EEOICPA program, our efforts have been aimed at ensuring consistency and replicability of SEC declarations across the whole DOE complex and over 

time. Further, we have sought to ensure that SEC class declarations are undertaken 

with full knowledge of their implications—that is, while a class declaration makes 

eligibility presumptive for claimants with one of the listed 22 cancers, those who 

have an unlisted cancer may have their chances for eligibility reduced or expunged 

depending on the basis for the SEC class. In some cases, even those with a listed 

cancer may suffer negative impacts from the declaration. Finally, because each new 

SEC class designation has been unique in its rationale and in its impact on how 

(or if) dose reconstruction can be done for cancers that are not granted presumptive 

coverage, DOL and NIOSH have had to work out unique procedures for each class 

to determine how these cases will be processed. The return of large numbers of SEC 

cases from NIOSH also creates a large, unanticipated workload in DOL’s district offices, and DEEOIC leadership has had to respond to those challenges by shifting 

caseloads among the four district offices. DOL clearly has an important need to participate in the SEC class declaration process, and our efforts to do so have been, 

and continue to be motivated by, these program imperatives. 

SUMMARY

In summary, we believe the record of DOL’s administration of EEOICPA demonstrates that promises made to the cold war veterans with enactment of EEOICPA 

are indeed being kept. Nearly $2.4 billion in monetary and medical benefits have 

been distributed to over 22,000 eligible workers and their survivors. Backlogs of 

cases generated at the inception of Parts B and E have been aggressively addressed 

and are rapidly diminishing: 76% of Part B cases have been decided by DOL, with 

another 11% (under 6,000) are awaiting NIOSH dose reconstruction; more than 75% 

of the old Part D backlog inherited by DOL from DOE has received an initial determination under Part E, and the remainder will be processed to that point in 2007. 

Approval rates far exceed those originally projected for the Part B program, and litigation remains remarkably low. A review of DOL’s administrative handling of cases 

involving dose reconstruction show that in the great majority of cases remanded or 

returned to NIOSH for reconsideration of dose reconstructions, DOL was supporting 

the claimant’s opportunity to achieve a better outcome. 

This is not to say that there is not much left to be done. DOL will continue to 

drive towards backlog elimination, strengthen its processes and procedures, improve 

training for its staff, maintain its ongoing outreach efforts, extend access to information about the program in numerous ways, and continue to provide extensive assistance to claimants in obtaining critical employment, exposure, and medical evidence 

to support their claims. NIOSH is similarly engaged in clearing out its oldest cases 

and reaching a steady-state situation, and the Department of Energy has redoubled 

its commitment to support both NIOSH and DOL information needs. On balance, 

the EEOICPA program is unfolding as promised, and can be expected to continue 

to do so.

Mr. HOSTETTLER. Dr. Howard. 

17

TESTIMONY OF JOHN HOWARD, M.D., DIRECTOR, NATIONAL 

INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH 

Dr. HOWARD. Thank you, Mr. Chairman. 

My name is John Howard, the Director of NIOSH of the Centers 

for Disease Control and Prevention and the U.S. Department of 

Health and Human Services. I just wanted to give you an update 

on the claims that we’ve completed in our process. 

Of the 22,761 that have been sent to us by DOL, we’ve returned 

16,317, or 72 percent of the claims that we’ve received. Of the first 

5,000 claims, which were the ones that were in the queue the longest, we’ve completed 4,899, or 98 percent of those. We have 4,491 

claims remaining, of which 3,110, or 69 percent, are older than 1 

year. Our goal is to have, by June of 2007, no claim in our system 

more than 1 year old. 

We’ve added 10 classes to the SEC. Three more are going to be 

added as of this Sunday unless Congress takes action otherwise. So 

that’s a total of 13, covering 11 sites and 1,100 claimants. 

We have nine petition-requested classes and four NIOSH-generated classes in that group. Three more NIOSH-generated classes 

are being submitted next week at the board’s meeting in 

Naperville, Illinois, along with two petitioner-requested classes, for 

a total of five. 

We have two new resources that are important to claimants that 

I wanted to mention to you today. One is an SEC petition counselor. I’m pleased to report that Laurie Ishack of our Compensation 

Analysis and Support office in Cincinnati is filling this position; 

and most importantly, we have a petitioner/claimant ombudsman 

position which will come on board shortly, probably tomorrow. I’m 

pleased to report that Ms. Denise Brock will serve as petitioner/

claimant ombudsman for NIOSH, under contract, reporting to the 

NIOSH director. 

We have a conflict of interest policy that we’ve been working on 

most of this year, which we finalized in October; and we have a 

NIOSH conflict-of-interest officer for NIOSH and its contractors. 

We’re working toward a mid-December implementation date. 

Since my last testimony in March of this year, the board has 

held 29 working group subcommittee or full Board meetings. The 

point I wanted to mention here is that we have provided verbatim 

transcriptions and detailed minutes of all Board meetings and the 

subcommittee meetings of the working groups and make them 

available to the public through our Web site. 

As Ms. Jackson Lee reported at your last hearing in November, 

a witness raised concerns regarding the data quality of NIOSH 

dose reconstructions. We have contacted that witness to apologize 

for the problems created and I apologized to her myself on the 

record. We’ve conducted conversations and agreed with her on an 

approach to expeditiously correcting the deficiencies in her dose reconstruction. 

NIOSH has made a lot of progress in carrying out the responsibilities of the Health and Human Services Department under this 

act, and that is due to the input of all parties, including this Committee and its staff. It is only when science receives the kind of 

scrutiny in the public forum that is robust that we can trust its 

conclusions. We look forward to continuing to make progress, with 

18

all parties putting their input on the table in a public forum about 

our science. 

Thank you for the opportunity to testify, and I look forward to 

answering your questions. 

Mr. HOSTETTLER. Thank you. 

[The prepared statement of Dr. Howard follows:]

PREPARED STATEMENT OF JOHN HOWARD, M.D. 

Mr. Chairman and Members of the Subcommittee, my name is John Howard and 

I am director of the National Institute for Occupational Safety and Health (NIOSH), 

part of the Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services (HHS). I am pleased to appear before you 

today to provide testimony on the status of HHS activities under the Energy Employees Occupational Illness Compensation Program Act of 2000 (‘‘the Act’’). 

The role of HHS in this program is to focus on the science of doing dose reconstructions, the related issue of considering and deciding petitions from classes of employees wishing to be added to the Special Exposure Cohort (SEC), and provide support for the Advisory Board on Radiation and Worker Health (‘‘the Board’’). Other 

areas of this program, such as processing and payment of claims, are under the purview of the Department of Labor (DOL), which has lead responsibility for administering EEOICPA. 

NIOSH is proud of the work we have done to implement EEOICPA. I will update 

you on the progress NIOSH has made to date, then discuss some of the challenges 

that we are currently addressing. 

As of November 30, 2006, DOL has referred 22,761 claims to NIOSH, and NIOSH 

has returned 72% (16,317) of these to DOL with a completed dose reconstruction. 

NIOSH has returned to DOL an additional 4.9% (1,121) for a determination of SEC 

eligibility; and DOL pulled an additional 2.7% (631 claims) for various reasons. Ten 

classes of workers have been added to the SEC to date. Three additional classes recently have been approved by the Secretary for addition to the SEC—they were sent 

to Congress on November 9, 2006, and will become effective on December 9, 2006, 

unless Congress determines otherwise. At the September meeting of the Board, 

DOL reported that more than $572 million had been paid to claimants with completed dose reconstructions or to members of an HHS added, non-statutory SEC 

class. 

In October 2005, as part of our commitment to expedite completion of the first 

5000 cases NIOSH awarded a contract to Battelle Science and Technology to assist 

with the reconstruction of exposure conditions at various Atomic Weapons Employer 

facilities and the completion of individual dose reconstructions. Of the first 5000 

claims that NIOSH received from DOL, we have completed dose reconstructions or 

sent to DOL for adjudication 4899 or 98% of the cases. NIOSH has committed to 

completion of these first 5,000 claims as a top priority so claimants can have resolution of their cases. 

NIOSH also has taken the step of initiating petitions for adding classes to the 

SEC when NIOSH lacks data to estimate radiation doses with sufficient accuracy. 

Of the ten SEC classes that have been added to date and the three that will become 

effective this week, four were NIOSH-initiated: Linde Ceramics Plant in New York, 

Nevada Test Site, S-50 Thermal Diffusion Plant in Tennessee, and Los Alamos National Laboratory in New Mexico. Three more, Allied Chemical, Harshaw Chemical, 

and General Atomics, have been initiated and submitted to the Board for consideration at the Board meeting next week. 

For petitioner-initiated SECs, we have two new resources to assist petitioners: the 

SEC Petition Counselor and the NIOSH Petitioner/Claimant Ombudsman. The SEC 

Petition Counselor will provide guidance to anyone who wishes to submit an SEC 

petition. She will assist the petitioner(s) in understanding the complex development, 

submission, qualification, evaluation, and Board deliberation processes that the petition will undergo. NIOSH’s goal is to help everyone understand the complete petition process, and the SEC Petition Counselor will work with petitioners to help 

them overcome frustration or confusion that they may feel when submitting an SEC 

petition. Petitioners may also turn to the NIOSH Petitioner/Claimant Ombudsman. 

I am pleased that Ms. Denise Brock, who has testified before your subcommittee 

about her diligent and successful effort with the SEC petition of Mallinckrodt Chemical Works in Missouri, will be the NIOSH Petitioner/Claimant Ombudsman. She 

will be an independent, objective resource person to help with NIOSH interactions 

with claimants and petitioners. Ms. Brock will be a contractor employee with three 

specific goals: first, to hold individual meetings with claimants and petitioners to 

19

assist them in the claims and SEC processes; second, to facilitate workshops presented to groups of claimants and petitioners; and third, to review and suggest improvements in the communications vehicles NIOSH uses in interacting with claimants and petitioners. Ms. Brock will report her findings directly to the NIOSH Director’s Office. Ms. Brock will be a tremendous asset to both the claims and SEC 

petition processes. 

I am pleased also about the completion of another effort that has been months 

in the making. On October 17, 2006, NIOSH finalized and posted on our website 

the conflict of interest policy for the EEOICPA program activities. The policy had 

been presented to the Board in draft form and was revised in response to comments 

from the Board and the public. All covered entities, including NIOSH and its 

contactors and subcontractors, will post on their respective websites by December 

17, 2006, their procedures for demonstrating compliance with the policy. I have appointed a NIOSH Conflict of Interest Officer, who has held a planning meeting to 

start implementation by NIOSH of the policy. Since NIOSH is committed to transparency in all aspects of EEOICPA program activities, all conflict of interest disclosure forms will be posted on our website or can be accessed through a weblink on 

our website. 

As I have mentioned, the Board provides guidance and oversight for HHS 

EEOICPA activities, focusing on scientific detail and peer review of the soundness 

of NIOSH’s scientific work, and provides recommendations to the Secretary on the 

addition of classes to the SEC. HHS provides administrative services, funds, facilities, staff, and other necessary support services. 

I reported to you in my March testimony that the Board had met a total of 46 

times in working groups, subcommittee, and as the full Board. Between March and 

now, the Board has been especially busy, holding 20 working group meetings, 6 

Board meetings, and 3 subcommittee meetings. The next Board meeting will be next 

week, December 11–13, 2006, in Naperville, Illinois. The Naperville site was chosen 

for the Board meeting so that interested claimants and petitioners from Blockson 

Chemical Company, one of five SEC petitions to be considered by the Board at the 

meeting, may more easily attend the meeting and address the Board during the 

public comment period. 

The Board provides guidance to HHS on all aspects of EEOICPA program activities and we greatly appreciate its meticulous efforts. Since NIOSH is dedicated to 

transparency in all aspects of the program, all Board meetings, including working 

group meetings, are publicly announced and open to the public. We exceed the requirements of the Federal Advisory Committee Act (P.L. 92–463) by providing verbatim transcriptions and detailed minutes of all Board meetings, including those of 

working groups, and making them available to the public through our website. 

To assist the Board in its work, CDC uses a technical support contractor, Sanford 

Cohen & Associates (SC&A). SC&A assists to the Board in reviewing NIOSH’s dose 

reconstruction estimates, site profile documents, and SEC petition evaluations. 

SUMMARY

In conclusion, NIOSH has made much progress in carrying out the responsibilities 

of HHS under EEOICPA: we have completed more than 16,000 dose reconstructions, 

representing 72% of the over 22,000 claims received. Together with those covered 

by a SEC class, this has resulted in almost $600 million in compensation. But we 

still have a long way to go. We will continue to value transparency in all activities 

and strive to ensure that all of our work is of the utmost reliability and integrity. 

We look forward to continuing to make progress in our work to assist the heroes 

who have cancer as a result of exposure to unique hazards in building the Nation’s 

nuclear defense. 

Thank you again for the opportunity to testify. I am happy to answer any questions you may have.

Mr. HOSTETTLER. Mr. Bertoni. 

TESTIMONY OF DANIEL BERTONI, DIRECTOR, EDUCATION, 

WORKFORCE, AND INCOME SECURITY ISSUES, U.S. GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. BERTONI. Good afternoon, Mr. Chairman, Members of the 

Subcommittee. I’m pleased to be here to discuss work on the Energy Employees Occupational Illness Compensation Program, 

which provides benefits to individuals who are exposed to hazVerDate 0ct 09 2002 11:23 Jan 25, 2007 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6601 F:\WORK\IMMIG\120506\31312.000 HJUD1 PsN: 31312
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ardous materials who develop illnesses such as cancer and lung 

disease. The Department of Labor administers the program with 

the assistance from HHS, NIOSH and an independent Advisory 

Board. 

To date, Labor has made payments to over 21,000 claims, totaling $1.7 billion. We have issued several reports identifying needed 

improvements in this program. However, since the issuance of our 

February 2006 report, a memo from the Office of Budget to Labor 

has renewed congressional concern about program management, 

the potential efforts by the Administration to inappropriately contain compensation benefits. 

My testimony today will focus on three areas. First, I’ll discuss 

our prior work, documenting problems with claims processing and 

program design; second, I’ll discuss key findings from a report on 

the work of the Advisory Board; and third, I’ll highlight an aspect 

of our ongoing work that is relevant to the OMB memo. 

In summary, GAO has maintained a constant audit presence in 

regard to this program. In 2004, we reported that a shortage of 

qualified physicians hinders timely adjudication of Subtitle B 

claims, and without needed changes, many claimants could wait 

years to pursue workers’ compensation. In the interim, their medical condition could deteriorate or they could die. We concluded 

that specific actions were needed to expedite claims processing, enhanced communications with claimants, and improved case management data. In the same report, we identified a structural problem that could lead to inconsistent benefit outcomes. Our analysis 

of cases in nine States showed that over 3,000 lacked a willing 

payer of benefits and were likely to be contested. We outlined various options for change and the Congress subsequently enacted legislation to dramatically restructure the program. 

In 2004, we also reported that in the first 2-1/2 years of implementation, Labor and NIOSH had processed only 9 percent of the 

more than 21,000 claims referred for dose reconstruction, primarily 

due to the complexity of this workload. Because site profiles are 

often critical to processing dose reconstructions, we recommended 

that specific time frames be established for completing all remaining profiles. 

Earlier this year, we reported that the roles of certain officials 

initially involved in the Advisory Board’s review of dose reconstructions may not have been sufficiently independent. Since credibility 

is essential to the work of the Board, we cautioned that continued 

diligence was required to avoid actual or perceived conflicts. They 

also found, in the first 2 years, the Board’s contractor had spent 

almost 90 percent of the $3 million allocated for a 5-year undertaking. We recommend various actions to enhance the Board’s oversight role. 

Finally, GAO is currently conducting work for this Subcommittee 

on a range of Subtitle B issues. One aspect of our review is especially relevant to the OMB memo and includes examining whether 

Labor, in an effort to constrain program costs, is involved in activities primarily tasked to NIOSH, the Advisory Board or the Board’s 

contractor. While it is reasonable for OMB to monitor the cost of 

Federal programs, concerns have been raised that certain options 

21

in the OMB memo could result in decisions unduly based on budgetary considerations rather than established scientific procedures. 

Our work in this area is ongoing. We have not drawn any conclusions. However, I would like to briefly highlight some preliminary 

observations in areas we plan to focus on going forward. We know 

that Labor’s internal correspondence indicates substantial concern 

about rising program costs and new SEC petitions. We also know 

that NIOSH has shared draft versions of key documents such as 

Special Exposure Cohort petition evaluations with Labor before finalizing and sending them to the Advisory Board for review. 

NIOSH also recently agreed to allow Labor to review and comment 

on drafts of various technical documents such as site profiles, technical basis documents, and technical information bulletins, all of 

which are used for dose reconstructions. 

Labor has provided comments on these documents. Officials told 

us that the basis for their involvement is Labor’s designation as the 

lead agency for administration and that their input is aimed at 

promoting clarity and consistency in the adjudication of claims. 

Labor has also reviewed thousands of dose reconstructions completed by NIOSH and returned many cases for rework. Officials 

told us that they review all reconstructions, return them if they 

find factual or methodological errors. We are currently examining 

extent, nature and outcome of Labor’s comments on these various 

documents. This includes requesting all relevant documentation 

and related data. As the review proceeds, we plan to obtain more 

information on key issues such as timing, nature and basis of Labor’s activities. 

Mr. Chairman, this concludes my statements. I’d be happy to answer any questions that you or other Members of the Subcommittee may have. Thank you. 

Mr. HOSTETTLER. Thank you, Mr. Bertoni. 

[The prepared statement of Mr. Bertoni follows:]

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PREPARED STATEMENT OF DANIEL BERTONI


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Mr. HOSTETTLER. We will now turn to questions. 

Mr. Hallmark, your testimony today states that the Department 

of Labor has a helpful role to play in defining the parameters for 

who should be treated as part of the Special Exposure Cohort and 

who should be excluded. You also assert that this has nothing to 

do with cost containment. 

However, in an October 2005 Department of Labor memo, prepared for the OMB, it states, ‘‘DOL has also experienced problems 

in several cases with a description of the class adopted by the National Institute for Occupational Safety and Health, or NIOSH. In 

view of the effect and costs of an overexpansive definition, we suggest that such determinations also be subject to OMB clearance.’’

Explain why involvement with setting up the class definition 

does not also overlap with the Department of Labor’s agenda to reduce the costs of benefits. 

Mr. HALLMARK. Well, first of all, Mr. Chairman, we don’t have 

an agenda to reduce costs. As I have said before and I will continue 

to say, our agenda has been and continues to be to focus on accomplishing consistent, fair and legally sufficient outcomes. That has 

been and will continue to be our approach. 

With respect to the issues that you’re raising from the October 

memorandum, those are all issues associated with the OMB memo, 

passback memo, that has been discussed since the March hearing. 

OMB testified before you that they are not pursuing those options, 

the Administration is not pursuing them, the Department of Labor 

is not pursuing them; they are, in effect, a debate that’s over. I believe that that is, in fact, a clear description of the situation. 

Mr. HOSTETTLER. Let me just ask you, are you familiar with this 

memo that states, ‘‘In view of the effect and costs of an overexpansive definition, we suggest that such determinations also be subject 

to OMB clearance?’’

Are you familiar with that memo? 

Mr. HALLMARK. I’m not sure whether I’m familiar with that particular memorandum or e-mail, but I’m sure those terms are used 

in a lot of the e-mails that occurred, especially in that time frame. 

Our interest is in consistency and fairness and lawful outcomes. 

The use of the costs comes in when people ask us for estimates of 

costs, and it’s a shorthand way of discussing the significance, the 

size of a particular kind of issue that’s being discussed. But that 

doesn’t change the fact that the real concern there is consistency 

and fairness. 

What we want to do is make sure that everybody is treated fairly 

in this; and as I said earlier, in establishing a particular class, 

HHS is granting benefits, presumptive benefits, to some individuals who have one of the 22 listed cancers. By the same decision, 

they are reducing the possibility of benefits being received by the 

other 40 percent who don’t have one of those listed cancers. So 

that’s one of the issues that we have tried to impress upon the 

Board, NIOSH and HHS, that ideally the SEC designations should 

be done very carefully and with an idea toward trying to avoid negative impacts, where it can be done. 

Mr. HOSTETTLER. Have you received any communications from 

OMB, formal communications in memorandum form, ordering the 

39

Department of Labor to cease and desist from implementing the 

OMB passback memo? 

Mr. HALLMARK. I’m not aware of a specific memorandum but 

there have been many communications that I have been made 

privy to in terms of both the statements made by OMB before this 

Committee and letters directly to various Members of Congress. 

Those are shared with me and with my leadership; and it’s very 

clear what the position of the Administration is, and we are following that position. 

Mr. HOSTETTLER. So is there official documentation that can be 

accessed by the Committee similar to the passback memo? 

What we’re suggesting is, there’s a lot of discussion and rhetoric 

and it’s all very encouraging rhetoric. But is there any official communication between the Office of Management and Budget and the 

Department of Labor with regard to the passback memo and to negate its impact? 

Mr. HALLMARK. I am aware of numerous conversations, e-mails, 

and as I said, the public documents that I have referenced just a 

minute ago. There may be other documents that I haven’t seen, but 

I’m not aware of them. In any case, the policy is clear. 

Mr. HOSTETTLER. Could you make these public documents available to the Committee? We have not seen these public documents. 

Mr. HALLMARK. The documents I was referring to are letters 

from OMB to Members of Congress. 

Mr. HOSTETTLER. But that’s actually more rhetoric. My question 

is a formal indication to the Department of Labor that the 

passback memo is null and void, and that’s not what I’m hearing. 

Is there such a memo that says the passback memo is void? 

I’m hearing a lot about conversations and letters written to Members of Congress, but is there—is there a document similar to the 

passback memo that has been—communication that has been made 

in memo form saying that the passback effectively is null and void? 

Mr. HALLMARK. Not to my knowledge or recollection. 

Mr. HOSTETTLER. Thank you. 

Dr. Howard, the Advisory Board on radiation worker health is 

required to have a balance of scientific medical and worker perspectives. Today, only two bring a worker perspective and only two 

bring a medical perspective. Do you consider the Board to be in balance with the requirements of EEOICPA? If not, explain the steps 

that the Administration has taken to rectify the imbalance with the 

statutory requirements. 

Dr. HOWARD. Yes, Mr. Chairman. I’m not sure that right now 

with vacancies on the Board that anyone can argue we’re in balance, because we have vacancies. I think our role in this at NIOSH 

is to collect opinion from any party, the Board, any public member, 

others who would like to nominate individuals to serve on the 

Board; and then to look into their nomination, get a resume together and then forward those recommendations to the White 

House. This is a Presidential advisory committee, so we ourselves 

don’t make those selections. 

Personally, I’d like to see our board filled with all of its statutory 

members and to have that balance of scientific, medical and worker 

perspectives, so—when we lose any individual in any of those three 

groups then we lose that perspective, so it’s important that we 

40

have that balanced perspective. I’m hoping that the President’s appointment office will work expeditiously to fill those vacancies. 

Mr. HOSTETTLER. My time for this first round has concluded, but 

before I move on, Dr. Howard, I just want to commend you for your 

naming of the two new resources to assist petitioners, the petition 

counselor and the petitioner/claimant ombudsman, and especially 

the naming of Ms. Brock as your petitioner/claimant ombudsman. 

I appreciate that extraordinary effort to reach out to claimants to 

create that point of contact in both cases. 

The Chair will now recognize the gentlelady from Texas, Ms. 

Jackson Lee, for questions for 5 minutes. 

Ms. JACKSON LEE. Dr. Howard, allow me to echo the remarks of 

the Chair in terms of those appointees and appointments and the 

changes that have been made. 

Mr. Hallmark, let me—in this season of joy, you have a very interesting name, so I will try to be as joyous as I can; but I believe 

I made some opening remarks—I indicated that if the appropriate 

representative of the DOL—and this is not to disregard your position to make changes, at least sufficient changes to give Congress 

the impression that what you’re saying today is all the way up the 

food chain—and that means the Secretary of Labor from my perspective—but that we will treat this process in the respectful way 

that it should be treated. 

And despite the representations, there’s sufficient documentation 

that speaks to cost containment and sufficient frustration by those 

covered and petitioning for compensation and those not covered 

that there seems to be a need, whether OMB needs to make a public statement, a printed document that clarifies that their job and 

task is not to short change, contain and make more difficult the 

rights of the petitioners or victims who are seeking compensation. 

So let me just cite for you an incident that occurred last week 

when the Department of Labor apparently told a health care provider of services under this program that it was being terminated. 

This frightened sick workers who did not have the time or the ability to quickly secure a replacement health care provider eligible for 

reimbursement by DOL. In one case, we are advised the patient is 

in end-stage disease and lives in a rural area. 

How many claimants were affected by the proposed termination 

of this health care provider and how many States? Did DOL suspend payment for this vendor’s services, and if so, what was the 

reason? And what can be done to ensure that claimants are not cut 

off by health care services abruptly when you terminate a provider? 

Mr. HALLMARK. Ms. Jackson Lee, first, let me go back to the 

issue of the OMB memorandum that has been discussed by both 

yourself and the Chair. I neglected to mention that the OMB document, the original OMB document that started this entire discussion, enunciated a series of options. It was not a directive to the 

Department of Labor or anyone else; it was a series of ideas for discussion. Those ideas were never implemented. They aren’t part of 

any directive to the Department of Labor or other entities. So that 

probably explains why there’s not an OMB document directing that 

they not be followed. 

Ms. JACKSON LEE. What would be very helpful—and I appreciate 

the testimony on the record—is a letter to that effect from the DeVerDate 0ct 09 2002 11:23 Jan 25, 2007 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6601 F:\WORK\IMMIG\120506\31312.000 HJUD1 PsN: 31312
41

partment of Labor and from the Secretary of Labor that this was 

an advisory document, that to date no such practices have been implemented; and I’d go a step further to say at this juncture no such 

steps are intended to be implemented. 

Of course, every agency, as every Member of Congress, has a 

right to change as conditions change, but that would be a very 

helpful document as we try to help fix this issue. 

Mr. HALLMARK. I understand. 

To return to the second part of your question regarding the 

health care provider, this is a reference to a company by the name 

of Professional Case Management. I’ll start by answering your second question. 

DOL did not propose to terminate services by this health care 

provider to any of the claimants involved. I believe there are roughly 50 individuals that this provider sent letters to saying that they, 

the provider, was going to cut off services, but that was not at 

DOL’s instruction. There has, in fact, been an ongoing dispute between this provider and the Department of Labor regarding billing 

practices. We identified rather serious problems with the billings 

being provided by this company, and we put their bills under suspension for manual review. The company was issued its letters because the manual review has been slower than we would like, or 

they would like, and we are taking steps to make sure that review 

is accelerated. 

But under no circumstances did we want those individuals to 

have their provider services cut off; and we have arranged, as of 

last Friday, with the company that those services will continue to 

all of the individuals who received that letter and to any other individuals for whom they’re authorized as a provider. 

Ms. JACKSON LEE. Thank you. 

Let me move quickly. I do want to say, Mr. Hallmark, when is 

the final rule going to be issued under Subtitle E? It has been more 

than 18 months since the interim final rule was issued, and a number of important issues need to be resolved in the final rule that 

have been left in limbo. 

Can you explain the delay? 

Mr. HALLMARK. The final rule is scheduled for completion before 

the end of this calendar year, and I’m confident that will be accomplished. The process, as you know with any regulation, takes a substantial amount of time, and there’s a large number of entities and 

individuals who review the document. It is in that review process, 

and I expect it will be completed——

Ms. JACKSON LEE. You will take input still if there’s some concerns that we may have on the final rule? 

Mr. HALLMARK. The rule is in the process of review within—following the comment period. So we don’t have an opportunity at 

this point to accept additional comments. 

Ms. JACKSON LEE. Let me, Dr. Howard, just mention that Texas 

has been particularly disadvantaged with this legislative process. 

There is no site profile for the Texas City Chemicals Plant. I happen to have been in the area of Texas City and elsewhere where 

these seniors are located and to hear their passionate plea, ‘‘Can 

you help us?’’ and ‘‘Can you bring Congress down to our community 

so we can tell our stories?′′

42

Let me try to understand how NIOSH will do dose reconstruction 

for workers at Texas City Chemicals and just, from your view, your 

perspective on legislation that might help correct that by adding 

those areas that have not been included in this previous legislation. 

Dr. HOWARD. My understanding is, the statute does not cover 

contractors for AWE sites, and I believe that is an issue that is in 

your legislation. It’s a class of workers without recourse under this 

program in terms of eligibility. 

Ms. JACKSON LEE. Do you see the value in assessing workers like 

that? I know Congress is charged to legislatively change it, but 

you’re in the HHS. Can you see the value of trying to correct that 

problem? 

Dr. HOWARD. Definitely. Uranium or any other radioisotope, it 

doesn’t matter what your employment status is, if you’re near it, 

it’s going to influence your body. 

So from that perspective, from the scientific or medical perspective, I can’t myself, as a physician, understand the distinguishing 

characteristics. However, I can certainly understand from the point 

of view of policy why those kinds of decisions were probably made 

in 2000. 

But from a medical standpoint, there’s no distinguishing characteristic there. 

Ms. JACKSON LEE. I’m sorry, I didn’t catch your answer as to—

I know that these are subcontractors; is there any work NIOSH is 

doing on that? 

Dr. HOWARD. Not under the current law. 

Ms. JACKSON LEE. So what we would absolutely need is a change 

in the law. And therefore there are victims, of course, that are not 

being responded to because of—I call it ‘‘this quirk in the law,’’ 

frankly, and nothing more, nothing less. 

I appreciate your medical opinion, which is, exposure is exposure, 

and it’s up to the policymakers to try to define how we can assist 

these individuals who have been impacted. 

Dr. HOWARD. Yes. 

Ms. JACKSON LEE. The Labor-HHS Appropriations Act of 2006 

required NIOSH to submit a report on whether there are additional radiosensitive cancers which should be added to the list of 

22 cancers. The report was due on June 30th. 

What is the status of that report? 

Dr. HOWARD. That report is under review, final review, I hope, 

by the Department. 

Ms. JACKSON LEE. And any light at the end of the tunnel? 

Dr. HOWARD. I wish I had some light to shed on this. I do know 

that it’s under review by the Department, and I make inquiries of 

the Department on a regular basis. 

We would have liked to have been on time. We’re not. We apologize for that, but I’m sure people in the Department whose responsibility it is to review this are working hard on this. 

Ms. JACKSON LEE. Mr. Chairman, I know we’re writing a lot of 

letters, but I would appreciate a letter to the Secretary of Health 

and Human Services to encourage a more expeditious response. 

This is now December and it is the end of the year. It was due in 

June and it’s an important document—maybe a letter to encourage 

a speedier response. 

43

Mr. HOSTETTLER. I’ll be glad to join the Ranking Member on 

that. 

Ms. JACKSON LEE. I’d appreciate it. Thank you, Mr. Chairman. 

Mr. Bertoni, thank you very much for your presence here. You 

have mentioned internal correspondence at the Labor Department 

which reflects major concerns about the potential for rapidly expanding costs in Subtitle B benefits. Can you give us some representative examples of internal correspondence that reflect these 

concerns? 

Mr. BERTONI. I believe you’re referring to page 9 of our formal 

statement. That’s essentially a roll-up of—we only recently have 

begun to essentially wade into 4,500 pages of documents that were 

received by this Subcommittee for both Labor and NIOSH; and as 

we have begun to do so, we’ve noticed some memorandums and emails that pique our interest in terms of Labor’s concern about increasing costs. And essentially we identified five initially, and we 

look forward to wading even deeper and seeing what else we can 

find. But it is our initial work. 

Really, the five that we identified dealt with the Mallinckrodt 

and the Iowa SEC petitions. I have the background materials that 

we used to roll up that one statement, and it refers to, we have five 

memos. Essentially the first is an April 14, 2005, assessment of 

Special Exposure Cohort issues that states, ‘‘—and it’s the director 

of OWCP—The ultimate impact of these two SECs, Iowa and 

Mallinckrodt, being granted would be to destabilize the entire rationale for the dose reconstruction process.’’ One logical outcome 

would be a move, gradual or sweeping, to grant SEC status across 

the board. We estimate a $7 billion 10-year price tag for that eventuality. 

A February 22, 2005, memo from the director states—and it’s to 

the Secretary of Labor, that indicates that the addition of these two 

new Special Exposure Cohorts could, ‘‘threaten the stability of the 

current Part B program and would cause a $7 billion increase over 

10 years if all sites became SECs,’’—a very real possibility. 

A January 27 memo—it’s actually an e-mail from the director, 

states, indicates that the addition of several classes of employees 

at the Mallinckrodt and Iowa Army Ammunition Plant facilities to 

SEC would ‘‘lead almost inevitably to SEC petitions being brought 

and accepted at virtually all DOE sites. That equates to added 

costs of somewhere between $5 to $10 billion over 10 years.’’ We 

have others that essentially express the same concerns. 

To us, there are some terms in here, some statements that we 

really want to follow up on with the agency to get their sense of 

what exactly are they talking about in terms of undermining the 

program, opening the floodgates per se by allowing these two SEC 

petitions to go forward. 

So we are continuing to pursue this and we have not had the 

interviews that we will need to follow up with these folks to find 

out exactly what the rationale was behind some of these statements. 

Ms. JACKSON LEE. We thank you for very good and objective 

work. 

44

Mr. Chairman, I ask for unanimous consent of the list that Mr. 

Bertoni has just mentioned, that the list of the memos of Mr. 

Bertoni could be added to the record. 

Mr. HOSTETTLER. Without objection. 

Ms. JACKSON LEE. All right. Let me just say, none of us here are 

criticizing efficiency—and I’ll close on this question—efficiency and 

concern about the importance of conserving and/or respecting the 

resources of the American people, but I’m disturbed by the litany 

or the list of memos that really go to the heart of compensation and 

decision-making, particularly impacting what Dr. Howard and his 

team are doing. And so my question to you is that, as we looked 

at these—or you’ve seen this list, and it appears that there may be 

translated from the list of memos an intervention by the Department of Labor to undertake reviews on what NIOSH is doing. 

Do you see the appropriate nexus and connection that they 

should be interfering with what NIOSH is doing in their SEC petition evaluations and technical assessments that they’re making? 

Mr. BERTONI. Well, initially, under—under Executive Order 

13179, Labor is tasked with it being the administrator for this program. So, from a ‘‘keep the trains moving’’ operational standpoint, 

they should have some role in reviewing some of the key documents that affect the implementation of this program. 

What we’re interested in is, over time, what has been the nature 

and extent of these reviews, and exactly, have they crossed over beyond clarity and consistency issues to, perhaps, questioning the 

science of a particular dose reconstruction site profile or petition. 

So, initially, we can’t say whether that has occurred, and—but over 

the next coming months and weeks, we will be honing in on exactly 

those issues. We will be very interested in timelines pre and post 

memo, trends over the latter several months versus prior to the 

memo, and should be able to put together a—through data mining 

and analysis—a good sense of trends and the nature of the reviews 

and, at some point, make a determination of whether a line has 

been crossed, but I’m not in a position to make that determination 

right now, but we will be following up on that. 

Ms. JACKSON LEE. My time is up, Mr. Chairman. 

I just wanted to say that, Mr. Bertoni, we appreciate the effort 

to keep the train and the whistles and the bells going, but we don’t 

want the train to be derailed. And I think that’s an important 

question that has to be both asked and answered. I thank you for 

your testimony. 

I yield back, Mr. Chairman. 

Mr. HOSTETTLER. I thank the gentlelady. 

The Chair has a couple of questions to ask of our witnesses. 

First of all, Dr. Howard, the Department of Labor has suggested 

internally that NIOSH has acquiesced to, ‘‘claimant, Advisory 

Board and political pressure and allowed the Advisory Board to operate essentially as a worker advocacy organization.’’ Much of this 

criticism seems to be centered around special cohort approvals and 

related rulemaking. 

My first question is: Is the Advisory Board providing peer review 

or worker advocacy? And two, does Mr. Hallmark’s characterization 

of NIOSH square with the reality as you see it as agency director? 

45

Dr. HOWARD. With regard to the first question, I would say, most 

definitely, the Board provides peer review vital to the program. As 

I mentioned in my oral statement, science without that robust criticism from all parties—and the Board provides our formalistic paradigm for that together with its contractor, SC&A. Without that, 

then we at NIOSH have no assurance that our scientific conclusions merit the respect that we think they deserve, and in that 

process, the Board performs a vital function for us, so I would say 

that the Board does that very well. As I said, I’d like to see the 

Board fully balanced so that we have true worker representatives 

on our Board, but I think that the Board does a great job, in that 

regard, of peer review. 

Mr. HOSTETTLER. Well, in that, let me just ask one more question. Do you think the Advisory Board is more or less susceptible 

to, say, political pressure than NIOSH in these determinations? 

Dr. HOWARD. Well, I’m not sure more or less. I think—I think 

the Board is a robust organization as a Presidential Advisory 

Board. They engage in robust discussion on a regular basis both in 

their formal meetings as well as in their subcommittee and working group meetings. Each issue is aired until everyone is satisfied. 

It’s an exhaustive review that, I think, in the beginning when this 

program was being developed, nobody realized the nature and the 

scope of the review that would be necessary to settle some of these 

scientific questions. So, in that regard, again, I think the Board is 

performing a vital function for us at NIOSH. 

Mr. HOSTETTLER. Thank you, and then the second question: The 

Department of Labor’s characterization of NIOSH, does that square 

with reality? 

Dr. HOWARD. And the characterization again? I’m sorry. 

Mr. HOSTETTLER. With regard to worker advocacy. 

Dr. HOWARD. Well, I don’t think that paints an accurate picture, 

myself. I think what we’re dealing with here are scientific issues 

that involve workers, so they are, by definition, worker advocacyoriented because we’re dealing with exposures to workers. We 

think that our dose reconstructions, our technical basis documents, 

our SEC petition evaluations are scientifically balanced. We don’t 

pay any attention to whether we’re favoring one side or the other. 

We look at the science, and we want to make sure, through this 

process where we have a number of parties looking at it, that it 

is scientifically sound however it turns out. 

Mr. HOSTETTLER. Thank you. 

Mr. Bertoni, what are the specific conflict roles that the GAO 

identified with respect to the NIOSH Advisory Board and its audit 

contractor as it pertains to the NIOSH compensation program officials? 

Mr. BERTONI. The prior work I had noted? 

Mr. HOSTETTLER. Yes. 

Mr. BERTONI. Yes. Essentially, the—I’ll give you one example. 

The project officer who is essentially responsible for overseeing the 

contract was, in fact, in charge of the—the program under review 

at one point, so that was clearly, in our view, a conflict of interest 

that was—that was addressed. Also, I believe the contracting officer was also a member of—or charged with attending Advisory 

Board meetings—was also an—recording minutes and doing other 

46

functions for the Advisory Board—was also an officer or a manager 

in one of the programs under review. So that, again, was clearly 

a conflict that—ultimately, it was resolved, though. 

Mr. HOSTETTLER. So personnel changes were made. 

Are there any structural changes that you would suggest should 

be made in order to relieve the notion of conflict of interest? 

Mr. BERTONI. To the Board or relative to our current work looking at NIOSH’s oversight of the ORAU? 

Mr. HOSTETTLER. Well, either. 

Mr. BERTONI. I think the adjustments that were made to the 

board in its organization right now—we’re not aware of any specific 

conflicts. We do have ongoing work that is going to look at what’s 

in place now to at least provide for a reasonable amount of—to insulate the board from conflicts of interest and, beyond that, look at 

other options that one could take to strengthen the independence 

of the board and avoid conflicts of interest, and we have prior work 

where we’ve looked at in-depth analysis on at least nine other Advisory Boards, and it was at the broader review a couple years ago 

in 2004. We’ve actually documented best practices that you could 

take to strengthen conflict of interest and independence of Federal 

Advisory Boards, and that’s going to be part of our criteria as we 

move forward and look at the relationship between NIOSH and the 

contractor ORAU. 

Mr. HOSTETTLER. Thank you. 

Does the Gentlelady from Texas have any further questions? 

Ms. JACKSON LEE. I do. 

Mr. HOSTETTLER. The Chair recognizes the gentlelady from 

Texas for 5 minutes. 

Ms. JACKSON LEE. Thank you. 

Mr. Bertoni, let me follow up on the line of questions of the 

Chairman. How important is the transparency in the appointment 

of the members of the Advisory Board that makes recommendations on the ‘‘special exposure cohort’’ applications? 

Mr. BERTONI. As I just noted, we have a body of work that actually looks at the boards and committees, and we’ve come down on 

record to say that transparency is important not only in terms of 

the selection of board members, the identification of candidates, the 

vetting, the process of determining qualifications, their specific 

points of view. Transparency in that entire process as well as in 

their day-to-day operations can only serve to—at least from a public perception standpoint, to increase one’s view of the integrity of 

that particular board. So there are—at the time of our last review 

where we looked at this, there were 900 similar boards. We drilled 

down on nine and essentially identified good practices, best practices that various boards do engage in to try to create situations 

where boards are perceived and actually do function very independently and with little conflicts of interest. So, throughout that—their 

deliberations and process, there should be transparency still; those 

looking in from the outside can be assured. You may not agree with 

the decision, but you at least are confident that—or are assured 

that the process, the integrity of the process, was there. 

Ms. JACKSON LEE. You just said something that may be—that 

may not be the jurisdiction or the agenda for this particular hearing, but you said there were 900 Advisory Boards about? 

47

Mr. BERTONI. Yes. At the time of our review, there were approximately 950, I think we cited in the report. 

Ms. JACKSON LEE. And those boards are not subject to congressional confirmation; is that correct? 

Mr. BERTONI. Correct. 

Ms. JACKSON LEE. Most of them are not? 

What kind of—it’s good to say ‘‘transparency,’’ and it’s good to 

have the GAO, and you’ve been very effective, I think, in answering 

some of these concerns, but what kind of partnership with Congress would be effective? We have offered the suggestion of congressional appointment. There can be congressional reporting of the 

Advisory Board, names to Congress, but I really do think that we 

miss checks and balances, and that is an enormous component of 

Government. That’s 900 Advisory Boards making, I believe, very 

important decisions, and what we’ve found with some difficulty is, 

of course, that we may be challenged as it relates to transparency. 

What kind of partnership do you think, prospectively, this whole 

contingent of Advisory Boards might be able to have with Congress? 

Mr. BERTONI. I’ll preface this with the fact that we haven’t really 

looked at 5840 and all the elements of it. 

Ms. JACKSON LEE. I understand. 

Mr. BERTONI. We are well aware. We have in place as one of the 

options we are considering as we look at other models for where 

you might move with strengthening the integrity—or the independence of an Advisory Board or in terms of developing its selections. 

Ms. JACKSON LEE. A portion being appointed and a portion coming through the Congress? 

Mr. BERTONI. Correct. Yes. 

My general reaction to the selection process is I think it should 

be open. It should be open to several sources of nomination as he 

noted. There are—there are ways that certain boards get the word 

out that they are looking for nominees. They’re going as far as publishing this in the Federal Register, but I think, right from the 

start, it should be a public process to announce we are looking for 

qualified members, opening it up to nominations from various 

sources, and there should be a public vetting and approval process 

and even right down to the point of looking at the prospective person’s past statements, prior employment to get—to get a good sense 

of not only technical expertise but also their particular point of 

view, and I don’t see any reason why Congress from its oversight 

standpoint can’t request key information leading up to the selection 

of the board. 

Ms. JACKSON LEE. Sir, I think that’s an excellent direction. 

Dr. Howard, without giving names, your present Advisory Board 

is how large? 

Dr. HOWARD. Right now, statutorily, I think there are six scientific members, three medical members and three worker reps. I 

believe that we’re down one medical and one worker rep. 

Ms. JACKSON LEE. And I think——

Dr. HOWARD. He’s nodding that I’m correct. 

Ms. JACKSON LEE. And your scientific members are academic or 

in companies? 

48

Dr. HOWARD. They can be a mixture of both. They usually have 

academic credentials. They may not be in an academic setting, but 

they tend to be academically oriented. 

Ms. JACKSON LEE. Do you agree with transparency along with 

the vigorous oversight or input that you’ve just articulated is clearly important, one, to protect the victims of this particular Advisory 

Board? 

Dr. HOWARD. Definitely. Transparency of the members of the 

Presidential Advisory Board is very critical because we’re making 

the kind of decisions that the Chairman referred to where people 

can perceive them as biased, so it’s extremely important that we 

be as transparent as possible. 

Ms. JACKSON LEE. So any attempt to help enhance that transparency, whether it’s a congressional partnership or oversight, 

might be constructive? 

Dr. HOWARD. Well, I’ll leave that to Congress, but certainly, from 

my perspective, we do everything possible at NIOSH to ensure that 

our processes of selection recommendation to the President and 

this Advisory Board is as transparent as possible, so that’s certainly something that we have in common. 

Ms. JACKSON LEE. Mr. Hallmark, let me just conclude by saying 

to you, you’ve presented a case of innocence, and we do appreciate, 

first of all, your presence here today. You can sense—sense some 

consternation with the process that we’ve had to pursue, but I 

would ask, as you’ve made your presentation, that you glean from 

this hearing the importance of this issue and the need to compensate victims fairly. NIOSH needs to be able to work effectively. 

Frankly, I think that the program is fractured by not including 

those subcontractors, but most of all, we want to hear that the Department of Labor will view its role in moving the compensation 

ball forward and not the role of containment—is that my understanding?—cost containment outside the ordinary business responsibilities that all agencies have. This program is a program that 

was set up to compensate, through the legal procedures that 

NIOSH has instigated, the victims. 

Mr. HALLMARK. Well, I would repeat that many of the documents 

and e-mails that are being discussed here today date back to a debate that was associated with the OMB memorandum of last fall, 

a year ago. Those documents, in effect, came to a close with the Administration determination not to proceed with any of the options 

that had been presented, so I think it’s important to look at this 

from the perspective of time frames. 

One of the witnesses in the previous hearing talked about a 

memorandum that I had written in February, I believe it was, of 

2006. That was—and suggested that that indicated that we were 

continuing to pursue a cost-cutting agenda. In fact, that memorandum was written before OMB issued its decision before this 

Committee and in other venues about not pursuing those options. 

So that’s, in my view, past history. My testimony today talks about 

the fact that we are looking at the program to make sure it’s fair 

and to make sure that we’re compensating people and as quickly 

as we can, and as I’d repeat the notion that, in our review, for example, of the dose reconstruction reports that we get from the—

from the NIOSH, we want to make sure they’re right; 2,000 of 

49

those cases have been sent back for rework for various reasons, and 

almost 90 percent of those reworks were on cases where the 

NIOSH outcome was less than 50 percent and the individual was 

not going to get a benefit. We sent them back to give the individual 

another chance, and I believe in something like 350 of those cases, 

the individual ended up receiving the benefit. 

That’s what we’re supposed to do. That’s what we are doing on 

an ongoing and constant basis. We’re not trying to stop claims. 

We’re not trying to save money. We know that this program is very 

important, and we know that the benefits are mandatory benefits. 

So we decide after the inputs from NIOSH and other—and other 

sources that the claim is payable, and it will be paid, and that’s—

that’s the best—that’s the way this operation is supposed to work, 

and that is our goal. So we are—we are of like minds in that regard, I believe, and we proceed down the path to make sure the 

program is, in fact, honoring its promises. 

Ms. JACKSON LEE. So the era that we have passed through on 

this cost-containment memo is behind us at this juncture? 

Mr. HALLMARK. The only thing I’m stumbling on is the issue of 

a cost-containment memo. The OMB memo, which issued options 

which were at issue for a number of months, is behind us because 

the Administration/the Department of Labor are not proceeding 

with that set of options. 

Ms. JACKSON LEE. Thank you. 

I hope that we will get the solution, Mr. Chairman, for the victims. That is the only reason why the two of us are here and have 

been here for five hearings consistently, and I hope that you will 

continue your interest and advocacy, and I would hope that this 

would be—find its way to the top of the agenda for the 110th Congress. People are really, really in need, and I thank the witnesses, 

and I yield back. 

Mr. HOSTETTLER. I thank the Gentlelady. 

I also want to thank the witnesses for your input and your addition to the record. It’s been most helpful. 

I would advise the Subcommittee that all Members will have 2 

legislative days to make additions to the record and that this Subcommittee will be making significant submissions to the public 

record. The business before the Subcommittee being now completed, we are, without objection, adjourned. 

[Whereupon, at 5:35 p.m., the Subcommittee was adjourned.] 

(51)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

52

PREPARED STATEMENT OF THE HONORABLE JOHN N. HOSTETTLER, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF INDIANA, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION, BORDER SECURITY, AND CLAIMS


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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND RANKING MEMBER, SUBCOMMITTEE

ON IMMIGRATION, BORDER SECURITY, AND CLAIMS


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SIGNIFICANT DOCUMENTS AND COMMUNICATIONS RELATED TO THE SUBCOMMITTEE’S

OVERSIGHT OF THE ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION

PROGRAM ACT


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