This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

22537

Vol. 60, No. 88

Monday, May 8, 1995

DEPARTMENT OF LABOR

Employment Standards Administration

20 CFR Parts 702 and 703

RIN 1215–AA92

Longshore and Harbor Workers’

Compensation Act and Related

Statutes

AGENCY: Employment Standards

Administration, Labor.

ACTION: Notice of proposed rulemaking;

request for comment.

SUMMARY: The Department of Labor

proposes to revise the regulations

implementing the Longshore and Harbor

Workers’ Compensation Act to improve

administration and clarify existing

policy. The regulations as proposed

would: provide that the jurisdictional

boundaries will in the future be changed

by direct notice to affected parties;

eliminate the requirement for using

certified mail in most circumstances;

clarify that the Office of Workers’

Compensation Programs fee schedule is

the standard for determining what is a

reasonable and customary medical

charge where there is a dispute; and

modify the requirement that an

employer with geographically different

work sites within one compensation

district have only one insurance carrier.

DATES: Written comments must be

submitted on or before July 7, 1995.

ADDRESSES: Send written comments to

Joseph Olimpio, Director for Longshore

and Harbor Workers’ Compensation,

Employment Standards Administrative,

U.S. Department of Labor, Room C–

4315, Frances Perkins Building, 200

Constitution Avenue NW., Washington,

DC 20210; Telephone (202) 219–8721.

FOR FURTHER INFORMATION CONTACT:

Joseph Olimpio, Director for Longshore

and Harbor Workers’ Compensation,

Telephone (202) 219–8721.

SUPPLEMENTARY INFORMATION: The

Longshore and Harbor Workers’

Compensation Act (LHWCA) at 33

U.S.C. 901, et seq., establishes a federal

workers’ compensation system for

certain workers in covered employment.

The Act establishes the general

parameters of the compensation scheme,

including the system for filing claims,

the benefit levels to be paid, and how

the liability of the employer is to be

secured. In this connection the

Secretary of Labor is given, among other

things, general authority for initial

adjudication of disputed claims,

resolution of certain ancillary issues

such as disputes involving the amount

charged for medical treatment, and

responsibility for authorizing private

insurance carriers to underwrite

coverage. These proposed rules address

issues relating to these subjects by: (1)

Clarifying that existing district office

jurisdictional boundaries may be

changed by notice to the affected

parties; (2) eliminating certain

requirements for using certified mail; (3)

using the OWCP medical fee schedule

as a tool to resolve disputes over the

amount of medical bills; and (4)

eliminating the requirement that an

employer have only one insurance

carrier for each compensation district.

Compensation Districts

The Act (section 39(b), 33 U.S.C.

939(b)) requires that compensation

districts be established, and the

regulations currently contain a listing of

the districts and the states covered by

them. These districts have jurisdiction

over claims which arise in the states

which fall within that district. The

jurisdictional boundaries have changed

periodically as work loads shift and

other factors necessitate a change in the

rules to reflect the boundary

modifications. The modifications of the

rules, however, have not always

followed immediately after the actual

change. For example, two districts were

eliminated and the states therein

incorporated into other districts (see 50

FR, January 3, 1985), and while the

changes were purely administrative,

only later were rules modified to reflect

these changes.

With the increasing effort to

streamline government, OWCP

recognizes that the boundaries may

need to be modified in the interest of

efficiency of operation, and that the

process for changing the boundaries

should be flexible. By rescinding the

existing description and providing that

any changes in the future will be made

through direct notice provision, the

proposed rules would allow changes in

the boundaries to be made more

efficiently (without requiring a

republication in the Federal Register),

and more effectively (since all interested

parties will be notified directly).

The change represents no substantive

change, nor should this proposal be read

as an indication that changes in existing

boundaries are presently being

considered. If is merely an attempt to

take advantage of this opportunity to

clarify and simplify the process.

Certified Mail

The current regulations require that

the Longshore district office, or

Administrative Law Judges (ALJs), as

appropriate, serve the notice of

deficiency of settlement applications

702.243(b)), memoranda of the informal

conference 702.316 and the notice of

claim given to the employer 702.224 via

certified mail. The proposed rules

would drop these requirements for

using certified mail.

While certified mail does not add

significantly to the security of the mail

process, the requirement does increase

costs and the amount of staff time it

takes to mail a document.

Approximately 9,000 pieces of mail per

year must now be sent certified mail

under these rules, at a cost of over

$9,000 in extra mailing charges and

more in staff time to complete the

necessary Postal Service forms. The

service to the recipients should not be

significantly reduced; indeed because it

will no longer be necessary for the staff

to complete the mailing forms, the

recipients should see an improvement

in the level of service.

Use of OWCP Fee Schedule

The LHWCA provides to the Secretary

significant authority for overseeing

medical care of injured employees. The

1984 amendments to the Act expanded

this authority to include ordering a

change of physician or debarring a

physician who submits bills for medical

treatment where the charge exceeds the

prevailing community rate for such

service. The regulation implementing

this provision (702.413) provides that,

where a dispute arises as to whether a

bill exceeds the prevailing community

rate, it is resolved by the OWCP

Director. The regulations provide that

‘‘state medical fee schedules for

workers’ compensation charges may be
22538 Federal Register / Vol. 60, No. 88 / Monday, May 8, 1995 / Proposed Rules

used’’ (emphasis added) to determine

what is the prevailing rate, but does not

bind the Director or the parties to this

methodology.

Since these regulations were put into

effect, the OWCP itself has devised a

medical fee schedule which the

Department now proposes to use to

determine the LHWCA prevailing rate.

The OWCP fee schedule was enacted in

1986 and establishes a schedule of

maximum allowable charges for most

medical services provided to injured

workers under the Federal Employees’

Compensation Act (FECA), 5 U.S.C.

8101 et seq. See 20 CFR 10.410 and

10.411 and 51 FR 8276, for a complete

explanation of the background and

purpose of the schedule.

In brief, under the fee schedule and

billing system, individual procedures

are assigned a descriptor code using the

Physicians’ Current Procedural

Terminology (CPT) scheme developed

by the American Medical Association.

Each code is then assigned a relative

value unit (RVU) reflecting the relative

skill, effort, risk, and time required to

perform the procedure. The maximum

allowable amount payable for a given

service is calculated by multiplying the

RVU by a conversion factor (CF). This

product is in turn multiplied by a

geographic index (GI) which allows for

regional variations in medical costs

(down to Metropolitan Statistical Areas)

using the Urban Institute’s Geographic

Practice Cost Indices (GPCIs).

The OWCP fee schedule has proven

itself over time as an efficient

benchmark for determining the

prevailing community rate. Indeed, it

has in practice been used by district

medical directors in determining

prevailing community rates in LHWCA

cases. This rule change, therefore,

merely formalizes an existing practice.

Insurance Policies

The current rules require an employer

operating within any one OWCP

compensation district to insure all

operations within that district through a

single insurance carrier. Each LHWCA

district is comprised of a number of

different states (see current 20 CFR

702.101), the boundaries of which were

drawn for internal administrative

purposes. Insurance carriers, however,

are regulated by the individual states

and therefore may not do business or

write LHWCA coverage in every state

conforming to the LHWCA

compensation districts in which an

operator may have facilities. As a result,

the rule requiring only one carrier

severely limits the field from which an

employer may choose a carrier, and

could potentially leave an employer

uninsured for a portion of its operations

(since, for example, where may be no

single insurance carrier operating in all

the states in a district in which the

employer has facilities). See Simpson &

Brown, Inc. v. Travelers Insurance

Company. CA No. 93–5287 (D. N.J.

1994) (regulation places the burden of

obtaining one carrier per compensation

district upon the employer and not

upon an insurer).

The genesis of the rule appears to be

limitations on record keeping,

limitations which have long since been

overcome through data processing and

other improvements. OWCP recognizes

the difficulties the existing rule may

present and therefore proposes to

abolish the requirement.

Statutory Authority

Subsections 39(a) and 39(b) of the

Act, 33 U.S.C. 939(a) and (b), provide

the general statutory authority for the

Secretary to prescribe rules and

regulations necessary for administration

and enforcement of the Longshore and

Harbor Workers’ Compensation Act. 33

U.S.C. 907(a) provides that the Secretary

of Labor may supervise the medical

treatment and care, including

determining the appropriateness of

charges.

Classification

The Department of Labor has

concluded that the regulatory proposal

is not a significant regulatory action

under the criteria of section 3(f) of

Executive Order 12866.

Paper Reduction Act

The information collection

requirements entailed by the proposed

regulations have previously been

approved by OMB.

Regulatory Flexibility Act

The Department believes that the rule

will have ‘‘no significant economic

impact upon a substantial number of

small entities’’ within the meaning of

section 3(a) of the Regulatory Flexibility

Act. Pub. L. No. 96–354, 91 Stat. 1164

(5 U.S.C. 605(b)). Although this rule will

be applicable to small entities it should

not result in or cause any significant

economic impact. The elimination of

the requirement for insurance

underwriting will provide increased

flexibility and opportunity for covered

employers to effect savings. The

provision for determining medical

charges is not expected to result in a

significant difference in the outcome

from that in the present method. The

Secretary has so certified to the Chief

Counsel for Advocacy of the Small

Business Administration. Accordingly,

no regulatory impact analysis is

required.

List of Subjects

20 CFR Part 702

Administrative practice and

procedure, Claims, Insurance,

Longshoremen, Vocational

rehabilitation, and Workers’

compensation.

20 CFR Part 703

Insurance, Longshoremen, Workers’

compensation.

For the reasons set out in the

preamble, parts 702 and 703 of chapter

VI of title 20 of the Code of Federal

Regulations are amended as follows:

SUBCHAPTER A—LONGSHORE AND

HARBOR WORKERS’ COMPENSATION

ACT AND RELATED STATUTES

1. The authority citation for parts 702

and 703 are revised to read as follows:

Authority: 5 U.S.C. 301, 8171 et seq.;

Reorganization Plan No. 6 of 1950, 15 FR

3174, 3 CFR, 1949–1953, Comp. p. 1004, 64

Stat. 1263; 33 U.S.C. 939; 36 D.C. Code 501

et seq.; 42 U.S.C. 1651 et seq.; 43 U.S.C. 1331;

Secretary’s Order 1–93, 58 FR 21190.

PART 702—ADMINISTRATION AND

PROCEDURE

§ 702.101 [Removed and Reserved]

2. Section 702.101 is removed and

reserved.

3. Section 702.102 is amended by

revising the section heading and by

redesignating paragraphs (a) and (b) as

paragraphs (b) and (c) and by adding a

new paragraph (a) to read as follows:

§ 702.102 Establishment and modification

of compensation districts, establishment of

suboffices and jurisdictional areas.

(a) The Director has, pursuant to

section 39(b) of the Longshore and

Harbor Workers’ Compensation Act, 33

U.S.C. 939(b), established compensation

districts as required for improved

administration or as otherwise

determined by the Director (see 51 FR

4282, Feb. 3, 1986). The boundaries of

the compensation districts may be

modified at any time, and the Director

shall notify all interested parties

directly by mail of the modifications.

(b) * * *

(c) * * *

§ 702.224 [Amended]

4. Section 702.224 is amended by

removing the word ‘‘certified.’’

§§ 702.243 and 702.316 [Amended]

5. Sections 702.243(b) and 702.316 are

amended by removing the words ‘‘by

certified mail.’’

6. Section 702.413 is revised to read

as follows:
Federal Register / Vol. 60, No. 88 / Monday, May 8, 1995 / Proposed Rules 22539

§ 702.413 Fees for medical services;

prevailing community charges.

All fees charged by medical care

providers for persons covered by this

Act shall be limited to such charges for

the same or similar care (including

supplies) as prevails in the community

in which the medical care provider is

located and shall not exceed the

customary charges of the medical care

provider for the same or similar

services. Where a dispute arises

concerning the amount of a medical bill,

the Director shall determine the

prevailing community rate using the

OWCP Medical Fee Schedule (as

described in 20 CFR 10.411) to the

extent appropriate, and where not

appropriate, may use other state or

federal fee schedules. The opinion of

the Director that a charge by a medical

care provider disputed under the

provisions of § 702.414 exceeds the

charge which prevails in the community

in which said medical care provider is

located shall constitute sufficient

evidence to warrant further proceedings

pursuant to § 702.414 and to permit the

Director to direct the claimant to select

another medical provider for care to the

claimant.

7. In § 702.414, paragraphs (a) and (c)

are revised to read as follows:

§ 702.414 Fees for medical services;

unresolved disputes on prevailing charges.

(a) The Director may, upon written

complaint of an interested party, or

upon the Director’s own initiative,

investigate any medical care provider or

any fee for medical treatment, services,

or supplies that appears to exceed

prevailing community charges for

similar treatment, services or supplies

or the provider’s customary charges.

The OWCP medical fee schedule (see

§ 702.413) shall be used by the Director,

where appropriate, to determine the

prevailing community charges for a

medical procedure by a physician or

hospital (to the extent such procedure is

covered by the OWCP fee schedule). A

claim by the provider that the OWCP fee

schedule does not represent the

prevailing community rate will be

considered only where the following

circumstances are presented: (1) Where

the actual procedure performed was

incorrectly identified by medical

procedure code; (2) that the presence of

a severe or concomitant medical

condition made treatment especially

difficult; (3) the provider possessed

unusual qualifications (board

certification in a specialty is not

sufficient evidence in itself of unusual

qualifications); or (4) the provider or

service is not one covered by the OWCP

fee schedule as described by 20 CFR

10.411(d)(1). These are the only

circumstances which will justify

reevaluation of the amount calculated

under the OWCP fee schedule. The

Director’s investigation may initially be

conducted informally through contact of

the medical care provider by the district

director. If this informal investigation is

unsuccessful further proceedings may

be undertaken. These proceedings may

include, but not be limited to: An

informal conference involving all

interested parties; agency interrogatories

to the pertinent medical care provider;

and issuance of subpoenas duces tecum

for documents having a bearing on the

dispute.

(b) * * *

(c) After any proceeding under this

section the Director shall make specific

findings on whether the fee exceeded

the prevailing community charges (as

established by the OWCP fee schedule,

where appropriate) or the provider’s

customary charges and provide notice of

these findings to the affected parties.

PART 703—INSURANCE

REGULATIONS

§ 703.121 [Removed]

8. Section 703.121 is removed.

Signed at Washington, DC., this 1st day of

May, 1995.

Ida L. Castro,

Deputy Assistant Secretary for Workers’

Compensation Programs.

[FR Doc. 95–11149 Filed 5–5–95; 8:45 am]

BILLING CODE 4510–27–M

Occupational Safety and Health

Administration

29 CFR Part 1926

Steel Erection Negotiated Rulemaking

Advisory Committee

AGENCY: Occupational Safety and Health

Administration (OSHA), Labor.

ACTION: Notice of Committee meeting.

SUMMARY: Under the provisions of the

Federal Advisory Committee Act

(FACA), notice is hereby given of a

meeting of the Steel Erection Negotiated

Rulemaking Advisory Committee

(SENRAC). Notice is also given of the

location of the meeting. This meeting

will be open to the public. Information

on room numbers will be available in

the lobby of the designated building. A

schedule of additional meetings will be

provided in a future notice.

DATES: The meeting is scheduled for

May 24–26, 1995. The meeting will

begin at 9:00 a.m. on May 24th.

ADDRESSES: Hyatt Hotel at Dulles

Airport—2300 Dulles Corner Boulevard,

Herndon, VA 22071; telephone (703)

713–1234.

FOR FURTHER INFORMATION CONTACT:

Anne Cyr, Acting Director, Office of

Information and Consumer Affairs,

OSHA, U.S. Department of Labor, Room

N–3647, 200 Constitution Avenue,

N.W., Washington, D.C. 20210;

telephone (202) 219–8151.

SUPPLEMENTARY INFORMATION: On May

11, 1994, OSHA announced that it had

established the Steel Erection

Negotiated Rulemaking Advisory

Committee (SENRAC)(59 FR 24389) in

accordance with the Federal Advisory

Committee Act (FACA), the Negotiated

Rulemaking Act of 1990 (NRA) and

section 7(b) of the Occupational Safety

and Health Act (OSH Act) to resolve

issues associated with the development

of a Notice of Proposed Rulemaking on

Steel Erection. Appointees to the

Committee include representatives from

labor, industry, public interests and

government agencies.

SENRAC began negotiations in mid

June, 1994, and has met seven times

since. Initial meetings dealt with

procedural matters, including

schedules, agendas and the

establishment of workgroups. The

Committee established workgroups to

address issues on Fall Protection,

Allocation of Responsibility,

Construction Specifications and Scope.

During subsequent meetings,

foundations for negotiations were

established and additional workgroups

were formed. In addition, the resolution

of issues and the drafting of a revised

rule continues.

All interested parties are invited to

attend the Committee meetings at the

time and place indicated above. No

advanced registration is required.

Seating will be available to the public

on a first-come, first-served basis.

Persons with disabilities, who need

special accommodations, should contact

the Facilitator by May 17, 1995.

During the meeting, members of the

general public may informally request

permission to address the Committee.

Minutes of the meetings and materials

prepared for the Committee will be

available for public inspection at the

OSHA Docket Office, N–2625, 200

Constitution Ave., N.W., Washington,

D.C. 20210; telephone (202) 219–7894.

Copies of these materials may be

obtained by sending a written request to

the Facilitator.

The Facilitator, Philip J. Harter, can

be reached at Suite 404, 2301 M Street,

NW, Washington, D.C. 20037; telephone

(202) 887–1033, FAX (202) 887–1036.