28948 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

DEPARTMENT OF LABOR

Office of Workers’ Compensation

Programs

20 CFR Parts 1 and 30

RIN 1215–AB32

Performance of Functions Under This

Chapter; Claims for Compensation

Under the Energy Employees

Occupational Illness Compensation

Program Act

AGENCY: Office of Workers’

Compensation Programs, Employment

Standards Administration, Labor.

ACTION: Interim final rule; request for

comments.

SUMMARY: This document contains the

interim final regulations governing the

administration of the Energy Employees

Occupational Illness Compensation

Program Act (EEOICPA or Act), that

provides lump-sum payments and

medical benefits to covered employees

and, where applicable, survivors of such

employees, of the Department of Energy

(DOE), its predecessor agencies and

certain of its vendors, contractors and

subcontractors. The Act also provides

for the payment of smaller lump-sum

payments and medical benefits to

individuals already found eligible for

benefits under section 5 of the Radiation

Exposure Compensation Act and, where

applicable, their survivors. The

Department of Labor’s (DOL) Office of

Workers’ Compensation Programs

(OWCP) administers the adjudication of

claims and payment of benefits under

the EEOICPA, with the Department of

Health and Human Services (HHS)

calculating the amounts of radiation

received by employees alleged to have

sustained cancer as a result of such

exposure and establishing guidelines to

be followed in determining whether

such cancers are at least as likely as not

related to employment. The Department

of Energy (DOE) and the Department of

Justice (DOJ) are responsible for

notifying potential claimants and

submitting evidence necessary for

DOL’s adjudication of claims under the

EEOICPA.

DATES: Effective Date: This interim final

rule is effective July 24, 2001.

Compliance Dates: Affected parties do

not have to comply with the information

collection requirements in §§ 30.100,

30.101, 30.102, 30.111, 30.112, 30.206,

30.207, 30.213, 30.214, 30.216, 30.217,

30.401, 30.415, 30.416, 30.417, 30.420,

30.421, 30.505, 30.617, 30.700, 30.701

and 30.702 until the Department

publishes in the Federal Register the

control numbers assigned by the Office

of Management and Budget (OMB) to

these information collection

requirements. Publication of the control

numbers notifies the public that OMB

has approved these information

collection requirements under the

Paperwork Reduction Act of 1995.

Comments: The Department invites

written comments on the interim final

rule from interested parties. Comments

on the interim final rule must be

received by August 23, 2001. Written

comments on collections of information

subject to the Paperwork Reduction Act

must be received by July 24, 2001.

ADDRESSES: Submit written comments

on the interim final rule to Shelby S.

Hallmark, Acting Director, Office of

Workers’ Compensation Programs,

Employment Standards Administration,

U.S. Department of Labor, Room S–

3524, 200 Constitution Avenue, N.W.,

Washington, DC 20210.

Written comments on the collection of

information requirements should be

sent to the Office of Information and

Regulatory Affairs, Office of

Management and Budget, Attention:

Desk Officer for Employment Standards

Administration, Washington, D.C.

20503.

FOR FURTHER INFORMATION CONTACT:

Shelby S. Hallmark, Acting Director,

Office of Workers’ Compensation

Programs, Employment Standards

Administration, U.S. Department of

Labor, Room S–3524, 200 Constitution

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

Telephone: 202–693–0036 (this is not a

toll-free number).

SUPPLEMENTARY INFORMATION:

I. What Is the Energy Employees

Occupational Illness Compensation

Program?

The Energy Employees Occupational

Illness Compensation Program Act

(EEOICPA), Public Law 106–398, 114

Stat. 1654, 1654A–1231 (October 30,

2000), was enacted as Title XXXVI of

the Floyd D. Spence National Defense

Authorization Act for Fiscal Year 2001.

The EEOICPA established a

compensation program to provide a

lump sum payment of $150,000 and

medical benefits as compensation to

covered employees suffering from

designated illnesses incurred as a result

of their exposure to radiation,

beryllium, or silica while in the

performance of duty for DOE and

certain of its vendors, contractors and

subcontractors. This legislation also

provided for payment of compensation

to certain survivors of these covered

employees, as well as for payment of a

smaller lump sum ($50,000) to

individuals (who would also receive

medical benefits), or their survivor(s),

who were determined to be eligible for

compensation under section 5 of the

Radiation Exposure Compensation Act

(42 U.S.C. 2210 note).

The EEOICPA further instructed the

President to designate one or more

Federal agencies or officials to carry out

the compensation program. Pursuant to

this statutory provision, the President

issued Executive Order 13179

(‘‘Providing Compensation to America’s

Nuclear Weapons Workers’’) of

December 7, 2000 (65 FR 77487) which

assigned primary responsibility for

administering the compensation

program to DOL. This executive order

also directed HHS to, among other

things, develop guidelines to assess the

likelihood that an employee with cancer

developed that cancer in the

performance of duty at a DOE facility or

atomic weapons facility, to establish

methods for calculating radiation dose

estimates for individuals applying for

benefits under this program for whom

there are inadequate records of radiation

exposure, and perform such

calculations. The President’s order

instructed DOE to provide DOL and

HHS all relevant information to which

it may have access, and to assist in the

development of claims under the

EEOICPA and state workers’

compensation programs. Finally, the

executive order directed DOJ to identify

and notify RECA beneficiaries of their

possible entitlement to benefits under

the EEOICPA and to assist DOL in the

adjudication of those claims.

II. Issuance of Interim Final Rule

Section 3611(a) of the EEOICPA both

establishes the Energy Employees

Occupational Illness Compensation

Program and provides that ‘‘[t]he

President shall carry out the

compensation program through one or

more Federal agencies or officials, as

designated by the President.’’ Pursuant

to this statutory provision, the President

issued Executive Order 13179 section

2(a)(ii) of which directed the Secretary

of Labor to ‘‘promulgate regulations for

the administration of the Program,

except for functions assigned to other

agencies pursuant to the Act or this

order;’’ no later than May 31, 2001. The

Act further stipulates that its provisions

for both lump-sum payments and

medical benefits shall take effect ‘‘on

July 31, 2001, unless Congress otherwise

provides in an Act enacted before that

date.’’ The Department believes that

Congress’s explicit mandate in the Act

that the provisions for both lump-sum

payments and medical benefits take

effect on July 31, 2001 contemplates

displacement of Administrative

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28949

Procedure Act (APA) notice and

comment procedures and requires the

publication of an Interim Final Rule as

an initial matter.

Therefore, the Department believes

that the ‘‘good cause’’ exception to APA

notice and comment rulemaking applies

to this rule. Under that exception, no

pre-adoption procedures are required

‘‘when the agency for good cause finds

(and incorporates the finding and a brief

statement of reasons therefor in the

rules issued) that notice and public

procedure thereon are impracticable,

unnecessary, or contrary to the public

interest.’’ 5 U.S.C. 553(b)(B). The

EEOICPA was enacted to provide

efficient, uniform and adequate

compensation for radiation, beryllium,

and silica related health conditions to

the civilian men and women who, over

the past 50 years, performed duties

uniquely associated with the nuclear

weapons production and testing

programs of DOE and its predecessor

agencies. The enactment of EEOICPA

was, in part, the result of the failure of

existing state workers’ compensation

programs to provide uniform and

adequate compensation for these types

of occupational illnesses. DOL cannot

begin to accept and process claims

under the EEOICPA until these

regulations are promulgated. The steps

necessary for the usual notice and

comment under the APA could not be

completed in time for the program to

become effective by July 31, 2001:

approval of the notice of proposed

rulemaking by the Secretary and OMB;

publication in the Federal Register;

receipt of, consideration of, and

response to the comments submitted by

interested parties; modification of the

proposed rules, if appropriate; final

approval by the Secretary; clearance by

OMB; and publication in the Federal

Register. Moreover, completion of these

steps will further delay the

implementation of the program.

Accordingly, the Department believes

that under 5 U.S.C. 553(b)(B), good

cause exists for waiver of Notice of

Proposed Rulemaking since issuance of

proposed rules would be impracticable

and contrary to the public interest.

While notice of proposed rulemaking

is being waived, the Department is

interested in comments and advice

regarding changes that should be made

to these interim rules. We will fully

consider any comments on these rules

that we receive on or before August 23,

2001, and will publish the Final Rule

with any necessary changes.

III. What Are the Paperwork

Requirements (Subject to the

Paperwork Reduction Act) Imposed

Under EEOICPA and the Department’s

Regulations, and How Are Comments

Submitted?

The new collections of information

contained in this rulemaking have been

submitted for review to OMB in

accordance with the Paperwork

Reduction Act of 1995. No person is

required to respond to a collection of

information request unless the

collection of information displays a

valid OMB control number. The new

information collection requirements are

in §§ 30.100, 30.101, 30.102, 30.111,

30.112, 30.206, 30.207, 30.213, 30.214,

30.216, 30.217, 30.415, 30.416, 30.417,

30.505, 30.617 and 30.702, and they

relate to information required to be

submitted by claimants, medical

providers, and witnesses as part of the

claims adjudication process, as well as

to information required to be submitted

by claimants in connection with the

processing of bills. To implement all but

one of these new collections, the

Department is proposing to create eight

new forms (see sections A through E

and sections G through I below). One

new collection will be implemented

without any specific form (see section F

below).

In addition, this rulemaking contains

currently approved collections of

information in §§ 30.401, 30.420,

30.421, 30.700, 30.701 and 30.702,

which relate to information required to

be submitted by claimants and medical

providers in connection with the

processing of bills (see OMB–1215–

0055, OMB–1215–0176, and OMB–

1215–0194). These collections (Forms

OWCP–1500, UB–92 and 79–1A) will be

revised to include EEOICPA

respondents.

A. Employee’s Claim: Form EE–1

(§§ 30.100 and 30.102)

Summary: The claims adjudication

process for employees begins with a

requirement that they file a written

claim for benefits with the Department

on or after July 31, 2001. Employees do

not need to use the ‘‘Claim For Benefits

Under Energy Employees Occupational

Illness Compensation Program Act’’

(Form EE–1) to initiate this process

since any written communication that

requests benefits under the EEOICPA

will be considered a claim. They will,

however, be required to submit a Form

EE–1 to insure that OWCP has the basic

factual information necessary to begin

adjudicating the claim. In Form EE–1,

the employee is requested to provide

information with respect to his or her

identity, contact information, the type of

illness being claimed (with date of

diagnosis), the location or type of

employment, whether he or she is a

member of the Special Exposure Cohort,

and whether he or she received an

award letter under the Radiation

Exposure Compensation Act (42 U.S.C.

2210 note) or filed a lawsuit regarding

the claimed illness. OWCP may also

require employees to provide factual

information in support of any responses

made on Form EE–1. All employees will

be required to swear or affirm that the

information provided on the Form EE–

1 is true.

Need: Pursuant to the EEOICPA, a

claim for benefits is necessary to both

initiate the claims adjudication process

and to establish a commencement date

for any possible entitlement to medical

benefits.

Respondents and proposed frequency

of response: It is estimated that 43,140

employees annually will file one Form

EE–1.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each Form EE–1 is estimated to take an

average of 15 minutes per employee for

a total annual burden of 10,785 hours.

B. Survivor’s Claim: Form EE–2

(§§ 30.101 and 30.102)

Summary: The claims adjudication

process for survivors begins with a

requirement that they file a written

claim for survivor benefits with the

Department on or after July 31, 2001.

Survivors do not need to use the ‘‘Claim

For Survivors Benefits Under Energy

Employees Occupational Illness

Compensation Program Act’’ (Form EE–

2) to initiate this process since any

written communication that requests

benefits under the EEOICPA will be

considered a claim. They will, however,

be required to submit Form EE–2 to

insure that OWCP has the basic factual

information necessary to begin

adjudicating the claim. In Form EE–2,

the survivor is asked to provide

information with respect to both his or

her identity and the identity of the

deceased employee, contact

information, the type of illness being

claimed (with date of diagnosis), the

location or type of employment,

whether the deceased employee was a

member of the Special Exposure Cohort,

and whether he or she (or the deceased

employee) received an award letter

under the Radiation Exposure

Compensation Act (42 U.S.C. 2210 note)

or filed a lawsuit regarding the claimed

illness. OWCP may also require

survivors to provide factual information

28950 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

in support of any responses made on

Form EE–2. All survivors will be

required to swear or affirm that the

information provided on the Form EE–

2 is true.

Need: Pursuant to the EEOICPA, a

claim for survivor’s benefits is necessary

to initiate the claims adjudication

process.

Respondents and proposed frequency

of response: It is estimated that 28,760

survivors annually will file one Form

EE–2.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each Form EE–2 is estimated to take an

average of 15 minutes per survivor for

a total annual burden of 7,190 hours.

C. Employment History: Form EE–3

(§§ 30.102, 30.111, 30.112, 30.206,

30.213 and 30.216)

Summary: Employees and/or

survivors claiming benefits under the

EEOICPA must establish, among other

things, an employment history that

includes at least one period of covered

employment. Form EE–3 has been

devised to elicit the basic factual

information necessary to enable OWCP

to make this particular finding of fact.

In Form EE–3, the respondent (the

employee or survivor) is asked to

provide information with respect to his

or her identity and contact information,

the employee’s identity, and the

employee’s complete employment

history that includes dates of

employment, the name and location of

employers, position titles and

descriptions of work performed, and

information regarding any dosimetry

badges worn. All respondents will be

required to swear or affirm that the

information provided on the Form EE–

3 is true. Further, the employment

history provided on Form EE–3 will be

provided to DOE for verification.

Need: Documentation of a history of

covered employment is one of the

elements that must be met to establish

entitlement to benefits under the

EEOICPA.

Respondents and proposed frequency

of response: It is estimated that 68,584

employees and/or survivors annually

will file one Form EE–3.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each Form EE–3 is estimated to take an

average of 1 hour per response for a total

annual burden of 68,584 hours.

D. Employment History Affidavit: Form

EE–4 (§§ 30.102, 30.111, 30.112, 30.206,

30.213 and 30.216)

Summary: As noted in section C

above, employees and/or survivors

claiming benefits under the EEOICPA

must establish, among other things, an

employment history that includes at

least one period of covered

employment. In situations where the

use of Form EE–3 may not be

practicable (e.g., due to a lack of

available information), Form EE–4 may

be used as an alternate method to

provide OWCP with a basic

employment history by affidavit. In

Form EE–4, the respondent (someone

other than the employee or survivor) is

asked to provide information as to his

or her identity and relationship to the

employee, the employee’s identity, and

the employee’s employment history that

includes dates of employment, name

and location of employers, descriptions

of work performed, and an explanation

of the basis for the employment history

provided. All respondents will be

required to swear or affirm that the

factual information provided on the

Form EE–4 is true. Further, the

employment history provided on Form

EE–4 will be provided to DOE for

verification.

Need: Documentation of a history of

covered employment is one of the

elements that must be met to establish

entitlement to benefits under the

EEOICPA.

Respondents and proposed frequency

of response: It is estimated that 17,146

respondents annually will file one Form

EE–4.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each Form EE–4 is estimated to take an

average of 30 minutes per response for

a total annual burden of 8,573 hours.

E. Medical Requirements: Form EE–7

(§§ 30.102, 30.207, 30.214, 30.217,

30.415, 30.416 and 30.417)

Summary: Employees and/or

survivors claiming benefits under the

EEOICPA (except for those who have

received an award under section 5 of the

Radiation Exposure Compensation Act

(42 U.S.C. 2210 note)) must also

establish, among other things, that the

employee sustained a compensable

occupational illness. Form EE–7 has

been devised to elicit the type of

medical evidence (prepared by medical

providers) needed to enable OWCP to

make this particular finding of fact.

Claimants may also be required to

submit additional medical evidence

(prepared by medical providers) as

necessary. Form EE–7 describes, in

checklist format, both the general and

specific requirements for medical

evidence submitted in support of a

claim for each of the occupational

illnesses covered by the EEOICPA.

Need: Documentation of a covered

occupational illness is one of the

elements that must be met to establish

entitlement to benefits under the

EEOICPA.

Respondents and proposed frequency

of response: It is estimated that 68,584

respondents annually will file one

response to Form EE–7.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each collection of this information is

estimated to take an average of 15

minutes per response for a total annual

burden of 17,146 hours.

F. Supplemental Medical Evidence

(§ 30.214)

Summary: Employees and/or

survivors claiming that an injury, illness

or disability was sustained as a

consequence of a covered cancer must

submit a narrative medical report from

a medical provider which shows a

causal relationship between the claimed

injury, illness or disability and the

covered cancer. A standardized form or

format will not be used for the

submission of this information, which

will be collected on an as-needed basis.

Need: Documentation of a

consequential injury is one of the

elements that must be met to establish

entitlement to benefits for such a

condition under the EEOICPA.

Respondents and proposed frequency

of response: It is estimated that 4,500

respondents annually will submit this

collection of information once.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each collection of this information is

estimated to take an average of 15

minutes per response for a total annual

burden of 1,125 hours.

G. Pre-payment Affidavit: Form EE/EN–

15 (§§ 30.505 and 30.617)

Summary: Once the claims

adjudication process has been

completed and a final decision finding

coverage under the EEOICPA has been

made, the claimant must still provide

information to determine if he or she is

entitled to receive a lump-sum payment,

and if so, the amount of such lump-sum

payment. In Form EE/EN–15, the

claimant is requested to provide

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28951

information about any tort suits they

may have filed against a beryllium

vendor or atomic weapons employer,

and whether they have been convicted

on fraud charges in connection with the

EEOICPA or another federal or state

workers’ compensation law. Form EE/

EN–15 also requests information on

third party settlements, other eligible

survivors and corrections. All

respondents will be required to certify

that the information provided on Form

EE/EN–15 is true.

Need: Documentation of entitlement

to a lump-sum payment and the level of

any such payment is required under the

EEOICPA.

Respondents and proposed frequency

of response: It is estimated that 10,926

employees and/or survivors annually

will file one Form EE/EN–15.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each Form EE/EN–15 is estimated to

take an average of 40 minutes per

response for a total annual burden of

7,284 hours.

H. Acceptance of Payment: Form EE/

EN–20 (§§ 30.505 and 30.617)

Summary: After Form EE/EN–15 is

returned (and a determination that the

claimant is entitled to a lump-sum

payment is made and the amount of

such entitlement has been calculated),

the claimant will be informed of the

award payable under the EEOICPA and

that his or her acceptance of such

payment will be in full satisfaction of all

claims arising out of an occupational

illness covered by the EEOICPA. The

‘‘Acceptance of Payment’’ (Form EE/

EN–20) has been devised for this

purpose, and requests that the claimant

indicate whether he or she accepts or

rejects the offered payment within 60

days.

Need: Documentation of a claimant’s

acceptance of a lump-sum payment is

necessary to establish the full

satisfaction of all claims arising out of

an occupational illness covered by the

EEOICPA.

Respondents and proposed frequency

of response: It is estimated that 10,926

employees and/or survivors annually

will file one Form EE/EN–20.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each Form EE/EN–20 is estimated to

take an average of 5 minutes per

response for a total annual burden of

911 hours.

I. Medical Reimbursement: Form EE–

915 (§ 30.702)

Summary: Once a claim has been

accepted, the Department will pay

medical benefits retroactive to the date

the claim was filed. The ‘‘Claim For

Medical Reimbursement Under Energy

Employees Occupational Illness

Compensation Program Act’’ (Form EE–

915) has been devised to enable

claimants to seek reimbursement for

out-of-pocket expenses pertaining to the

medical treatment, prescription

medication, and medical supplies

obtained due to an accepted

occupational illness or consequential

injury.

Need: Documentation of a claimant’s

out-of-pocket expenses is necessary to

establish the amount that is payable as

medical benefits for an occupational

illness or consequential injury covered

by the EEOICPA.

Respondents and proposed frequency

of response: It is estimated that 5,095

respondents annually will file four

Forms EE–915.

Estimated total annual burden: The

time required to review instructions,

search existing data sources, gather the

data needed, and complete and review

each Form EE–915 is estimated to take

an average of 15 minutes per response

for a total annual burden of 5,096 hours.

Total public burden: The above

information collections have a total

public burden hour estimate of 126,693.

Using the current National minimum

wage of $5.15 per hour, the total annual

public cost estimate for all new

information collections is estimated to

be $652,469.00. There are no

recordkeeping or collection costs

associated with the information

collected on the EE–1, EE–2, EE–3, EE–

4, EE/EN–15, EE/EN–20 or EE–915.

Because the medical information

requested by the other two information

collections is kept as a usual and

customary business practice, there is no

additional recordkeeping or collection

cost associated with those collections.

The only operation and maintenance

cost will be for postage and mailing. An

estimated 50% of the EE–1 and EE–2

forms will involve postage and mailing

costs; the remainder will be received

directly by either DOL or DOE

personnel. The EE–3 form always

accompanies the EE–1 or EE–2,

therefore no additional postage or

mailing is required. An estimated

annual total of 167,612 mailed

responses at $0.34 (postage) + $0.03

(envelope) per response would be

$62,016.44.

Request for comments: The public is

invited to provide comments on the

above-noted new information collection

requirements so that the Department

may:

(1) Evaluate whether the proposed

collections of information are necessary

for the proper performance of the

functions of the agency, including

whether the information will have

practical utility;

(2) Evaluate the accuracy of the

agency’s estimates of the burdens of the

collections of information, including the

validity of the methodology and

assumptions used;

(3) Enhance the quality, utility and

clarity of the information to be

collected; and

(4) Minimize the burden of the

collections of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology,

e.g., permitting electronic submission of

responses.

Send comments regarding this burden

estimate, or any other aspect of this new

collection of information, including

suggestions for reducing this burden, to

the Office of Information and Regulatory

Affairs, Office of Management and

Budget, Attention: Desk Officer for

Employment Standards Administration,

Washington, DC 20503 no later than

July 24, 2001.

IV. What Matters Do the Regulations

Address?

Congress, in enacting the EEOICPA,

created a new Energy Employees

Occupational Illness Compensation

Program to ensure an efficient, uniform,

and adequate compensation system for

certain employees of DOE, its vendors,

contractors, and subcontractors, who

contracted beryllium, silica, and

radiation related health conditions as a

result of their employment in the

development of nuclear weapons. These

regulations describe the process that

DOL will use so that these employees,

and, when applicable, their survivors,

will receive the benefits provided by the

EEOICPA in the efficient and uniform

manner intended by Congress. The

following discussion describes the

regulations that will appear as 20 CFR

parts 1 and 30.

20 CFR Part 1

This part is substantially the same as

current part 1 (§§ 1.1 through 1.6), with

the exception of the updated list of

assigned functions contained in § 1.2,

and is reprinted in full for the ease of

the reader. This updated list of

functions reflects that the Assistant

Secretary for Employment Standards

28952 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

has assigned the Department’s

responsibilities under the EEOICPA and

E.O. 13179 to the Deputy Assistant

Secretary for Workers’ Compensation

Programs.

20 CFR Part 30

Subpart A—General Provisions

This subpart briefly describes the

types of benefits available under the

EEOICPA and provides a summary of

how the Department’s regulations under

the Act are organized. It also describes

the effect of other general criminal and

civil provisions on the EEOICPA claims

process.

Introduction

Sections 30.1 and 30.2 briefly

describe how the tasks involved in

administering the EEOICPA have been

assigned, both within the Department

and among the Secretaries of Labor,

Health and Human Services, and

Energy, and the Attorney General, while

§ 30.3 summarizes how the regulations

in this part are organized by subject

area.

Definitions

This section of the regulation defines

the principal terms used in this part. It

includes terms specifically defined in

the EEOICPA that, for the convenience

of the user of this part, are repeated in

this section. The Department seeks

comments on all of the definitions used

in the regulation, including, in

particular, those addressed in the

following paragraphs.

The § 30.5(g) definition of benefit or

compensation includes the money DOL

pays to or on behalf of a claimant as

well as any other amounts paid for such

things as medical treatment, monitoring,

examinations, services and supplies and

the transportation and other expenses

incurred in securing such medical

treatment. This section also

distinguishes the meaning of the term

‘‘compensation’’ as it is used in

EEOICPA section 3628(a)(1)—the

$150,000 lump sum payment—and as it

is used in EEOICPA section 3630(a)—

the $50,000 lump sum payment to

covered employees or their survivor(s)

under section 5 of the RECA.

EEOICPA section 3630(a) describes a

covered uranium employee as ‘‘an

individual who receives, or has

received, $100,000 under section 5 of

the RECA for a claim made under that

Act.’’ Because either an eligible

employee or that eligible employee’s

survivor(s) may receive $100,000 under

section 5 of the RECA, interpreting the

word ‘‘individual’’ in the section

3630(a) definition of ‘‘covered uranium

employee’’ as either an employee or that

employee’s survivor(s) results in having

to award $50,000 to the survivor of a

deceased survivor. This would create a

result that does not appear to have been

intended by Congress and is

inconsistent with the definitions of

covered beryllium employees, covered

employees with cancer, and covered

employees with chronic silicosis under

the EEOICPA. These definitions of

covered employee include only persons

who are or were employees, they do not

include survivors as covered employees.

Such an overly literal definition of

‘‘covered uranium employee’’ in the

EEOICPA is inconsistent with the

purpose of the EEOICPA ‘‘to provide for

timely, uniform, and adequate

compensation of covered employees

and, where applicable, survivors of such

employees suffering from illnesses

incurred by such employees in the

performance of duty * * *.’’ (see

EEOICPA section 3611(b)). Furthermore,

the conference report on the EEOICPA

also notes that section 3630 establishes

‘‘an additional entitlement for certain

uranium miners, millers, and

transporters, or the survivor of any such

employee if the employee is deceased,

who receives, or has received, payment

of a claim under the Radiation Exposure

Compensation Act (42 U.S.C. 2210

note).’’ H.R. Conf. Rep. No. 96–945, at

982 (2000). To avoid compensation of

survivors of survivors, the Department

has defined a ‘‘covered uranium

employee’’ as an employee who has

been determined to be entitled to

compensation under section 5 of the

Radiation Exposure Compensation Act,

as amended, (42 U.S.C. 2210 note) for a

claim made under that Act.

The EEOICPA does not define

disability but uses that term in section

3628(a) as a qualification for entitlement

to the $150,000 lump sum payment.

While other federally administered

workers’ compensation programs define

‘‘disability’’ to require a claimant to

establish a loss of wage earning capacity

or permanent impairment, it is clear

from Congress’ description of this

compensation program in EEOICPA

section 3611(b), that an employee need

only establish, to OWCP’s satisfaction,

that he or she has or has had one of the

covered occupational illnesses, without

establishing a loss of wage earning

capacity or permanent impairment as a

result of that illness. The definition of

‘‘disability’’ in § 30.5(w) reflects this

Congressional intent.

The EEOICPA defines survivor as any

individual or individuals entitled to

compensation under the survivor

provisions of the Federal Employees’

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

8133. Therefore, the definition of

survivor in § 30.5(dd) identifies those

individuals who would qualify as

survivors of a deceased covered

employee under section 8133 of the

FECA. A significant feature of the FECA

survivor provision is the limitation that

the list of eligible individuals does not

include a child over the age of 18 unless

that child is a ‘‘student’’ as defined in

section 8101(17) of the FECA, or is

incapable of self-support. Similarly,

non-dependent parents, siblings,

grandparents and grandchildren do not

qualify as survivors.

Information in Program Records

Sections 30.10 and 30.11 describe the

Privacy Act system of records entitled

DOL/ESA–49 that covers all OWCP

records relating to claims filed under

the EEOICPA. This system of records is

both maintained by and under the

control of OWCP. The records contained

in DOL/ESA–49 are considered

confidential and may not be disclosed

except as provided by the Privacy Act

of 1974. Section 30.12 describes the

process that must be used to either

obtain copies of or amend records

contained in DOL/ESA–49.

Rights and Penalties

Section 30.16 makes reference to

some of the criminal and civil

proceedings that can result from filing a

fraudulent or false claim or statement

with OWCP in connection with a claim

under the EEOICPA, and notes that the

Department of Justice has the sole

authority to initiate criminal

proceedings. Section 30.17 sets out the

Act’s statutory requirement for

permanent forfeiture of all benefits

whenever a claimant defrauds the

federal government in connection with

a claim under the EEOICPA or any other

federal or state workers’ compensation

law.

Subpart B—Filing Claims; Evidence

and Burden of Proof; Special

Procedures for Certain Cancer Claims

This subpart describes the early steps

in OWCP’s claims adjudication process

and includes a general description of

the evidence an employee or survivor

must submit to meet his or her burden

of proof. It also explains the special

procedures used in the early

adjudication of claims for cancer that do

not involve members of the Special

Exposure Cohort, which includes HHS’s

responsibility for calculating a

reconstructed dose.

Claims for Occupational Illness—

Employee or Survivor’s Actions

Section 30.100 describes how an

employee can file (or withdraw) a

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28953

written claim for benefits under the Act,

and explains the three alternate

methods that can be used to ‘‘file’’ such

a claim for the purpose of establishing

a commencement date for any possible

entitlement to medical benefits should

the claim ultimately be approved by

OWCP. Since an employee’s possible

entitlement to any medical benefits

under the Act commences on the date

the written claim is filed, OWCP will

choose the earliest filing date from

among the three alternate methods—the

date the claim is mailed to OWCP (as

determined by postmark), the date the

claim is actually received by OWCP, or

the date the claim is actually received

by DOE. Section 30.101 addresses these

same topics in the context of claims of

survivors.

Although use of the claim forms that

appear in the list of forms contained in

§ 30.102 is not required to file a claim

(a simple letter that contains words of

claim is legally sufficient), claims

should be filed using OWCP’s official

claim forms to ensure that all

information necessary for the early

stages of the claims adjudication process

has been submitted. Form EE–1 (for an

employee claiming for his or her own

occupational illness) and Form EE–2

(for a survivor of such a deceased

employee) are provided for these

purposes.

Claims for Occupational Illness—

Actions of DOE

In light of the broad range of

employment situations that could lead

to an exposure that might result in an

occupational illness compensable under

the Act, the Department has decided to

seek the type of basic factual

information that an employer would

otherwise provide to OWCP from DOE.

Therefore, § 30.105 indicates that DOE

will have the responsibility to either

concur or disagree (or indicate that it

lacks sufficient information to either

concur or disagree) with the

employment history submitted by the

employee in support of his or her claim.

DOE will also be responsible for helping

employees establish, through alternate

methods, the necessary factual basis to

support their employment histories

when the usual documentary evidence

is not available. Section 30.106

addresses these same DOE

responsibilities in the context of claims

of survivors.

Evidence and Burden of Proof

Section 30.110 lists the four classes of

individuals who are entitled to

compensation under sections 3623,

3627 and 3630 of the EEOICPA, and

§ 30.111 describes the burden of proof

on these individuals to establish their

entitlement to benefits under the Act.

While every claimant must establish

eligibility by a preponderance of the

evidence, section 30.111(c) permits the

use of written affidavits or declarations

as evidence of employment history or

survivor relationship where the

claimant attests that actual records on

these matters do not exist. DOL further

assists claimants in the development of

their claims by notifying the claimant of

any deficiency and providing an

opportunity for correction of the

deficiency (section 30.111(b)).

Special Procedures for Certain Cancer

Claims

E.O. 13179 assigns the ‘‘primary

responsibility for administering’’ the

compensation program to the Secretary

of Labor. However, a portion of the

adjudication process of claims for

cancer that do not involve employees

who are members of the Special

Exposure Cohort (or a survivor of such

an employee) is assigned to HHS.

Accordingly, § 30.115 indicates that if

OWCP determines that such an

employee (or a survivor of such an

employee) has established that he or she

contracted cancer after beginning

covered employment, OWCP will refer

the claim to HHS for dose

reconstruction. This package will

include, among other things, any

employment history compiled by

OWCP. It will not, however, constitute

a recommended or final decision by

OWCP on the claim.

After completing such further

development of the employment history

as it may deem necessary, HHS will

reconstruct the radiation dose and

notify the claimant directly of its

findings. At the same time, HHS will

also inform OWCP of its findings

regarding the radiation dose, at which

point OWCP will resume adjudication

of the claim (based on the reconstructed

dose calculated by HHS) and determine

whether the claimant has met the

eligibility criteria set forth in subpart C.

Subpart C—Eligibility Criteria

Eligibility Criteria for Claims Relating

to Covered Beryllium Illness

Section 30.205 describes the criteria,

set forth in sections 3621(7) and 3621(8)

of the EEOICPA, that a claimant must

satisfy to qualify for compensation for a

covered beryllium illness—that he or

she was (or is a survivor of) a ‘‘covered

beryllium employee’’ who has a covered

beryllium illness. Consistent with other

federally administered workers’

compensation laws, this section also

provides compensation (medical

benefits only) for any injury, illness,

impairment, or disability sustained as a

consequence of a covered beryllium

illness.

To establish the status as a ‘‘covered

beryllium employee,’’ a claimant may

submit any trustworthy

contemporaneous record that

establishes proof of employment or

presence at a covered facility during a

period when beryllium dust, particles or

vapor was present (§ 30.206(a)). Section

30.206(b) describes the type of records

that may be considered as evidence of

employment or presence at a covered

facility. Section 30.207 describes the

type of medical evidence required to

establish beryllium sensitivity and

chronic beryllium disease as set forth in

sections 3621(8) and 3621(13) of the

EEOICPA, and explains the claimant’s

burden in establishing a consequential

injury or illness.

Eligibility Criteria for Claims Relating

to Cancer

Section 30.210 describes the two

types of employees with cancer for

whom the EEOICPA provides

compensation. To be eligible for

compensation for cancer, an employee

either must be: (1) A member of the

Special Exposure Cohort (SEC) who was

a DOE employee, a DOE contractor

employee, or an atomic weapons

employee who contracted a specified

cancer after beginning such

employment; or (2) a DOE employee, a

DOE contractor employee, or an atomic

weapons employee who contracted

cancer (that has been determined,

pursuant to guidelines promulgated by

HHS, ‘‘to be at least as likely as not

related to such employment’’), after

beginning such employment. Consistent

with other federally administered

workers’ compensation laws, this

section also provides compensation

(medical benefits only) for any injury,

illness, impairment, or disability

sustained as a consequence of a covered

cancer.

Section 30.213(a) describes the

criteria set out in section 3621(14) of the

EEOICPA for establishing eligibility as a

member of the SEC. To satisfy the

EEOICPA requirement that an eligible

employee must have worked at a

designated gaseous diffusion plant for a

number of workdays aggregating at least

250 workdays before February 1, 1992,

§ 30.213(b) allows the claimant to

aggregate the days of service at more

than one gaseous diffusion plant.

Section 30.213(c) describes the type of

evidence a claimant may submit to

establish his employment with a

covered employer under this section. A

written medical report that includes a

28954 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

diagnosis and the date of diagnosis is

sufficient to establish either a specified

cancer, in the case of SEC members, or

cancer for other covered employees,

under § 30.214(a). Section 30.214(b)

describes the medical evidence required

to establish an injury or disease that

occurs as a consequence of a covered

cancer.

Eligibility Criteria for Chronic Silicosis

Section 30.215 sets forth the EEOICPA

section 3627 requirements for

entitlement to compensation for chronic

silicosis. To be eligible for benefits, the

employee must establish employment

with the DOE or with a DOE contractor

and presence for a number of work days

aggregating at least 250 work days

during the mining of tunnels at a DOE

facility located in Nevada or Alaska,

which were used for atomic weapon

tests or experiments. Section 30.216(c)

allows the claimant to aggregate the

days of service at more than one

qualifying site. The employee must have

been diagnosed with chronic silicosis,

supported by medical evidence set forth

in § 30.217.

Eligibility of Certain Uranium

Employees

Section 30.220 describes how

beneficiaries of $100,000 under section

5 of the RECA establish entitlement to

an additional $50,000 and medical

benefits provided by section 3630 of the

EEOICPA. Since RECA claimants may

receive payment under RECA in the

form of a promise to pay at a future date,

the Department has interpreted the

requirement in section 3630 of the Act

that a claimant ‘‘receives or has received

$100,000’’ under RECA to include

claimants who receive or have received

a promise of subsequent payment.

Subpart D—Adjudicatory Process

This subpart describes the

adjudicatory process OWCP will follow

when it issues decisions on claims

under the Act. It contains information

about filing objections following a

recommended decision and requesting a

hearing before OWCP’s Final

Adjudication Branch (FAB), and

describes the manner in which the FAB

will issue decisions on claims after a

hearing, a review of the written record,

or on a summary basis. This subpart

also indicates when decisions of the

FAB will become final, and describes

the process whereby OWCP may

exercise its discretion to modify a final

decision, either on its own motion or

upon the motion of a claimant.

Recommended Decisions on Claims

Sections 30.305 through 30.307

contain a basic description of a

‘‘recommended’’ decision on a claim,

which will contain both findings of fact

and conclusions of law, as appropriate.

These sections also describe the general

process OWCP will use when it issues

a recommended decision, and indicate

to whom OWCP will send the

recommended decision. It is important

to recognize that a recommended

decision does not constitute a final

decision by OWCP on a claim; instead,

it only represents an initial

recommendation made by an OWCP

claims examiner. Therefore, since a

recommended decision will not be

OWCP’s final decision on a claim under

the EEOICPA, a claimant may not seek

review of such decision in federal court.

Hearings and Final Decisions on Claims

Section 30.310 indicates that when

the district office issues a recommended

decision on a claim, it will also forward

the record of such claim to the FAB,

whether the recommended decision was

favorable or unfavorable to the claimant.

Within 60 days of the date the district

office issues the recommended decision

(unless this period is extended by the

FAB), the claimant must object to

specific findings of fact and/or

conclusions of law contained in the

recommended decision to trigger either

a hearing (upon specific request) or a

review of the written record by the FAB.

In the absence of any specific

objections, § 30.311(a) provides that the

FAB will summarily affirm the

recommended decision without

conducting any further review of such

decision. The Department believes that

bringing the claims adjudication process

to an end when a claimant does not

raise any specific objections is

appropriate, even if the claimant asks

for a hearing, since the expenditure of

administrative resources needed to

conduct further review of a claim under

these circumstances will most likely

serve no useful purpose given the nonadversarial nature of the claims

adjudication process. Section 30.311(b)

provides that the FAB will also

summarily affirm the recommended

decision, in whole or in part, if the

claimant waives any objection to all or

part of such decision.

If a claimant files specific objections

to a recommended decision with the

FAB, but does not request a hearing on

his or her claim, § 30.312 states that the

FAB will consider the objections by

means of a review of the written record

of the claim. If the claimant only objects

to a part of the recommended decision

(for example, the claimant objects to

OWCP’s rejection of the claim with

respect to one occupational disease, but

does not object to OWCP’s acceptance of

the claim for a different occupational

disease), this section notes that the FAB

has the discretionary authority to issue

a decision summarily affirming the

uncontested part, if such action is

appropriate. Section 30.313 describes

the process a FAB reviewer will follow

when he or she conducts a written

review of the record, which provides for

the submission of additional evidence

or argument from the claimant, or at the

request of the FAB reviewer.

If the claimant files objections and

requests a hearing within the 60-day

period referred to above, § 30.314 sets

out the general procedural framework

that a FAB reviewer will follow through

the completion of the informal hearing

process. This section describes a FAB

reviewer’s wide discretion in matters of

scheduling and in the conduct of the

hearing itself. Consistent with the

provision in § 30.312 allowing partial

decisions, § 30.314 also provides that if

the claimant only objects to a part of the

recommended decision, a FAB reviewer

has the discretionary authority to issue

a decision that summarily affirms the

uncontested part. Section 30.315

completes the description of the hearing

process by indicating that a claimant

may only postpone a scheduled hearing

in certain limited circumstances, and if

the hearing cannot be rescheduled in

such a way as to prevent delay, a review

of the written record will be conducted

instead. It also indicates that a claimant

may request a change to a review of the

written record at any time after

requesting a hearing, and that once such

a change is made, no further

opportunity for a hearing will be

provided.

The varied processes by which the

FAB issues decisions on claims (or parts

of claims) are described in § 30.316.

Subsection (a) provides for summary

affirmance (in whole or in part) of a

recommended decision when no

specified objections have been raised,

subsection (b) provides for the issuance

of a decision on a claim at the

conclusion of either a hearing or a

review of the written record, and

subsection (c) provides for the

automatic affirmance of any

recommended decision that is pending

either a hearing or a review of the

written record at the FAB for more than

one year. Subsection (d) indicates that

decisions of the FAB issued pursuant to

§ 30.316(a), (b) or (c) will become final

upon expiration of 30 days from the

date they are issued, unless the claimant

files a timely request for reconsideration

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28955

under § 30.319, and subsection (e)

indicates to whom the FAB will send its

decision. Section 30.317 further

provides that at any point in time prior

to issuing a decision on a claim, the

FAB may request that a claimant submit

additional evidence or argument and

may, in the exercise of its discretion,

remand a claim to the district office for

further development without issuing a

decision under § 30.316.

Finally, § 30.319 sets out the process

whereby a claimant may request

reconsideration of a decision of the FAB

before such decision becomes final, and

notes that if the request is granted, the

FAB will review the district office’s

recommended decision again and issue

a new decision on the claim without

holding a hearing. This section also

points out that if the FAB denies the

request for reconsideration, the decision

at issue will become final on the date

the request is denied. In § 30.319(c), the

Department describes the point at which

a decision on a claim under the

EEOICPA becomes final for purposes of

seeking judicial review, which occurs

when all administrative review

opportunities have been exhausted.

Modification

In order to accommodate those rare

instances when OWCP may wish to

reopen a final decision of the FAB,

§ 30.320 describes OWCP’s

discretionary authority to modify such a

decision at any time on its own motion.

This section also provides that a

claimant can move for modification

within one year of the date the FAB

decision became final, provided that he

or she can establish a mistake of fact in

the final decision or changed

circumstances. If OWCP determines that

modification is warranted, this section

notes that it may issue a new

recommended decision modifying the

prior final decision on a claim. It also

notes that while any new recommended

decision issued on modification will be

subject to the adjudicatory process

described in subpart D, the scope of

review at the FAB will be limited to the

merits of the new recommended

decision; OWCP’s discretionary

determination to modify the prior final

decision will not be reviewable.

Subsection (c) completes the description

of the adjudicatory process by noting

that the time limitations in § 30.320 will

not prevent a claimant from filing

another claim for a new occupational

disease or consequential injury not

already considered by OWCP, and that

regardless of the number of claims

OWCP accepts, no claimant can receive

more than one award of monetary

compensation under sections 3628(a)(1)

or 3630(a) of the Act.

Subpart E—Medical and Related

Benefits

This subpart contains a description of

the medical benefits that are provided to

employees under the EEOICPA, the

general rules for obtaining medical care,

and information regarding an

employee’s initial choice of physician. It

also describes the manner in which

OWCP may direct an employee to be

examined by another physician of its

choosing, and how OWCP resolves

conflicts in the medical evidence that

may arise as a result of such an

examination. Finally, subpart E

describes the general requirements for

medical reports to be submitted to

OWCP, and the process to be used by

employees to seek reimbursement for

medical expenses they have paid.

Medical Treatment and Related Issues

Section 30.400 reflects the basic

entitlement to medical benefits

contained in section 3629 of the Act,

including the provision that an

employee’s entitlement to such benefits

commences upon the date the claim is

filed. This section also indicates that

medical treatment that was provided to

an employee who dies before the claim

is accepted will be paid for if the claim

is accepted, as long as such treatment

was provided on or after the date the

employee filed his or her claim. Section

30.400 indicates that any qualified

medical provider may provide

appropriate services, appliances and

supplies.

Consistent with OWCP’s definition of

‘‘physician’’ set out in subpart A, which

is the same as the definition set forth in

section 8101(2) of the FECA, §§ 30.401

and 30.402 describe the special rules

that will apply to medical services

provided by chiropractors and clinical

psychologists. Generally, chiropractors

are limited to providing treatment to

correct a spinal subluxation, and a

diagnosis of spinal subluxation as

demonstrated by x-ray to exist must

appear in the chiropractors report before

payment of the bill will be considered.

Clinical psychologists cannot serve as

physicians for conditions that include a

physical component unless they are

authorized to do so under the applicable

state law.

Section 30.403 indicates that the

personal care services of a home health

aide, licensed practical nurse or

similarly trained individual will be paid

for as a medical benefit, so long as such

services are medically necessary. In

addition, § 30.404 indicates that

transportation and other reasonable and

necessary expenses needed to obtain

authorized medical treatment will be

paid for as a medical benefit.

Since section 3629(b)(2) of the Act

specifically provides employees with

the right to select an initial treating

physician, § 30.405 indicates that OWCP

will provide them with an opportunity

to designate a treating physician when

it accepts the claim. The physician so

selected can refer the employee to a

specialist without first seeking approval

from OWCP, but in all other situations

the employee must make a written

request to OWCP before he or she

changes treating physicians.

Directed Medical Examinations

On occasion, OWCP may need to have

an employee examined by a physician

of its own choosing for a second

opinion. Section 30.410 addresses this

need (in a manner consistent with

OWCP’s practices under section 8123 of

the FECA) and indicates that an

employee may not have anyone else

present at the examination, other than a

physician paid by him or her, unless

OWCP decides that exceptional

circumstances exist. This section also

indicates that where an actual

examination is not needed, OWCP may

send the case file for a second opinion

review.

Also consistent with section 8123 of

the FECA, § 30.411 describes what

OWCP will do once it receives the

report from the second opinion

physician. OWCP will base its

determination on entitlement on the

report that has greater probative value,

unless there is a conflict in the medical

evidence between the second opinion

physician and the employee’s

physician. A conflict only occurs when

two reports of virtually equal weight

and rationale reach opposing

conclusions. When this occurs, OWCP

will appoint a third physician to make

a referee examination, and the report of

this physician will be entitled to special

weight sufficient to resolve the conflict

if it has sufficient probative value. An

employee may not have anyone else

present at the referee examination,

unless OWCP decides that exceptional

circumstances exist, and OWCP may

send the case file for review by a referee

physician if an actual examination is

not needed.

Section 30.412 indicates that the costs

of the directed medical examinations

described in §§ 30.410 and 30.411 will

be paid for out of the fund as medical

benefits. In addition, OWCP will

reimburse the employee for necessary

and reasonable expenses incident to

such directed medical examinations out

of the fund.

28956 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Medical Reports

Section 30.415 contains a general

description of what a medical report

submitted to OWCP from an attending

physician should contain, and § 30.416

indicates that Form EE–7 should be

used as a guide in the preparation of

medical reports. For cases requiring

hospital treatment or prolonged care,

§ 30.417 indicates that periodic

narrative reports from the attending

physician are required, and that OWCP

may ask the physician to respond to

questions regarding continuing medical

treatment for the accepted occupational

illness.

Medical Bills

Medical providers should submit

medical bills directly for payment out of

the compensation fund. However, in

those instances where an employee pays

a medical bill and claims for

reimbursement out of the fund, § 30.420

refers the employee to the itemized bill

procedures described in § 30.702, while

§ 30.421 sets out the standard industry

practice of requiring submission of

medical bills by the later of the end of

the calendar year after the year the

expense was incurred, or the end of the

calendar year after the year OWCP

accepted the claim.

Since the OWCP fee schedule sets

maximum limits on amounts payable for

many medical services, § 30.422 notes

that an employee may be only partially

reimbursed for medical expenses

because the amount he or she paid

exceeds the maximum allowable charge.

When this happens, OWCP will advise

the employee of his or her responsibility

to ask the provider to refund the excess

charge paid to the employee, or to credit

the employee’s account. If the provider

refuses to do so, OWCP may authorize

reasonable reimbursement to the

employee after reviewing the facts and

circumstances involved.

Subpart F—Survivors; Payments and

Offsets; Overpayments

Survivors

Sections 30.500 through 30.502

address the identification of persons

entitled to receive monetary

compensation based on their

relationship to a deceased covered

employee under the Act. The class of

persons who may be a ‘‘survivor’’ under

the EEOICPA is taken from section 8133

of the FECA, as required by section

3621(18) of the EEOICPA. Any reference

to section 8133 of the FECA is solely for

the purpose of identifying the

individuals who may be survivors under

EEOICPA. Section 8109 of the FECA

provides the order of precedence and

proportion of monetary compensation to

be paid to the eligible surviving

beneficiaries, if any, under sections

3628(e)(2) and 3630(e)(2) of the

EEOICPA. These regulations specifically

detail who may be entitled to receive

compensation based upon their survivor

status. It should be noted that widows,

widowers and minor children are the

only persons who need not be

dependent upon the deceased covered

employee to receive monetary

compensation as a survivor. The

remaining persons, who may be

survivors under section 8133 of FECA,

must have been ‘‘dependent’’ upon the

deceased covered employee at his or her

time of death. The result of this

provision is that adult children of

deceased covered employees, as well as

other remaining family members, such

as ‘‘non-dependent’’ parents, siblings,

grandparents or grandchildren, will not

be eligible to receive any monetary

compensation under this Act. Finally,

OWCP will take all necessary steps to

determine the identity and correct

amount of compensation to be paid to

each and every eligible surviving

beneficiary.

Payments and Offsets

Sections 30.505 through 30.507

address the rules for the payment of

monetary compensation to claimants

under the EEOICPA. No vested right

exists to receive compensation under

the EEOICPA, thus claimants must be

alive to receive the compensation for

which they filed a claim. In cases where

the claimant is deceased, OWCP will

pay the eligible surviving beneficiaries

or their legal guardian, if any. In making

payment on a claim OWCP will take all

necessary and reasonable steps in

determining the entitlement and

identity of the claimant and/or the

eligible surviving beneficiaries related

to a claim for benefits, as well as any

offset required by section 3641 of the

EEOICPA to such an amount awarded.

OWCP will attempt to ensure that the

correct person will receive payment in

the correct amount by reserving the

right to conduct any investigation,

including requiring any claimant or

eligible surviving beneficiary to provide

or execute an affidavit, record or

document, or authorize the release of

any information deemed necessary for

purposes of payment. No payment will

be processed unless an ‘‘Acceptance of

Payment’’ form is signed and returned

by the beneficiary. Furthermore, any

failure by the claimant or eligible

surviving beneficiary to cooperate with

an investigation or provide information

to OWCP may be deemed a rejection of

the payment, unless the claimant or

eligible surviving beneficiary does not

have the legal authority to provide,

release or authorize access to the

requested information or documents.

Any rejected compensation payment, or

shares of compensation payment, will

not be distributed to the remaining

eligible surviving beneficiaries, rather,

the payment will be returned to the

Fund. With respect to the ‘‘offset’’

provisions within § 30.505, OWCP is

requiring claimants and eligible

surviving beneficiaries who receive

money awards or settlements based on

injuries suffered, for which they have

also filed a claim under the EEOICPA,

to declare such amounts received for

purposes of subtracting that amount

from the total award to be paid on the

EEOICPA claim. For purposes of

OWCP’s offset calculations, such claims

as state workers’ compensation benefits,

life insurance or health insurance

contracts will not be included in the

analysis. The provisions in this section

concerning multiple payments are set

forth to provide notice to claimants and

survivors that a covered employee’s

injuries due to any of the occupational

illnesses recognized under the EEOICPA

give rise to only one lump-sum payment

of monetary compensation per covered

employee. However, a claimant who is

a covered employee and who also

qualifies as an eligible surviving

beneficiary may receive more than one

payment; similarly, an eligible surviving

beneficiary may receive payment or a

portion of a payment each time he or

she qualifies as an eligible surviving

beneficiary.

Finally, the provisions in §§ 30.505

and 30.506 regarding ‘‘beryllium

sensitivity’’ make clear that no lumpsum monetary compensation will be

paid for such illness, rather

‘‘monitoring’’ will be the form of

compensation afforded to such covered

employees in accordance with section

3628(a)(2) of the Act. Monitoring shall

consist of regular medical examinations

and diagnostic testing to determine if

the covered employee has developed

‘‘established chronic beryllium

disease.’’ Once the individual develops

and has diagnosed the established

chronic beryllium disease, he or she

may then submit evidence of such

diagnosis to OWCP and request

appropriate benefits under the

EEOICPA.

Overpayments

Sections 30.510 through 30.513 detail

the process of how OWCP will identify

and pursue collection of overpayments

of compensation for purposes of the

EEOICPA. These sections have been

written to highlight and clarify OWCP’s

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28957

process to identify, notify, resolve and

collect any overpayments made to

EEOICPA beneficiaries. Specifically,

OWCP will notify each recipient of any

compensation payment by including

with each check a narrative description

indicating the reasons for payment. For

those payments sent via electronic

funds transfer (EFT) clear notification of

the date and amount of payment will

appear on the recipient’s bank

statement. When OWCP initially

identifies an overpayment it will notify

the recipient of its existence and

attempt to clarify and resolve the

dispute through an informal process.

Specifically, OWCP will notify the

beneficiary of the overpayment and

allow the beneficiary 30 days to submit

comments in writing and

documentation contesting the

overpayment. Upon the end of that 30-

day period, OWCP will notify the

beneficiary of its determination of

whether a debt is owed to OWCP. If this

informal process fails to resolve the

dispute, OWCP will then advise the

recipient of its intentions to collect the

overpayment using the Department’s

debt collection procedures set forth in

29 CFR part 20. Finally, if the

Department’s own procedures fail to

procure the repayment of the debt, such

overpayment is subject to the provisions

of the Federal Claims Collection Act of

1996 (as amended) and the debt may be

referred to the Department of Justice, or

a debt collection agency.

Subpart G—Special Provisions

This subpart addresses some

additional matters that can arise in

connection with a claim under the

EEOICPA. It contains provisions

describing representation of claimants

before OWCP and also describes the

subrogation rights the United States has

upon payment of compensation under

the Act, as well as the statutory election

of remedies for claimants who file tort

suits against beryllium vendors or

atomic weapons employers.

Representation

Section 30.600 notes that while the

claims process established by this part

is informal and non-adversarial, a

claimant may appoint one individual at

a time to represent his or her interests

before OWCP. Such appointments must

be in writing, and OWCP will only

recognize one individual at a time as the

duly appointed representative for the

claimant. Section 30.601 sets out the

legal restrictions on who may serve as

a representative, and when a federal

employee can be appointed to act as a

claimant’s representative. Finally,

§ 30.602 indicates that the claimant is

solely responsible for paying any

representative’s fee for services and

costs associated with the representation;

OWCP is in no way liable for any

portion of the representative’s fee.

EEOICPA section 3648 limits the

attorneys fees that can be charged a

claimant and provides a $5000 fine for

exceeding those limits. Since DOJ is

responsible for deciding whether to seek

the imposition of a fine, the Department

defers to DOJ’s interpretation of the

statutory limitation.

Third Party Liability

Section 3642 of the Act provides that

upon payment of compensation to a

claimant, the United States is

subrogated to any right or claim that the

claimant may have on account of his or

her injuries, for the amount of such

payment of compensation. Sections

30.605 through 30.611 describe the

manner in which the United States will

exercise this statutory authority. These

sections require claimants who have

received EEOICPA benefits to inform

OWCP if they receive money or other

property as a result of a settlement or

judgment related to their claims, and

provide advice regarding the method of

valuing structured settlements and the

amount to which the United States is

subrogated. These sections also note

that a settlement or judgment received

as a result of allegations of medical

malpractice in treating an illness

covered by the EEOICPA is a recovery

that must be reported to OWCP, while

payments to an employee or eligible

surviving beneficiary as a result of an

insurance policy which the employee or

eligible surviving beneficiary has

purchased is not. They also provide

guidance on how the amount paid on a

single EEOICPA claim is attributed to

different conditions for purposes of

calculating the amount to which the

United States is subrogated.

Election of Remedy Against Beryllium

Vendors and Atomic Weapons

Employers

Based on the explicit language of

section 3645 of the EEOICPA, §§ 30.615

and 30.616 describe the severe

limitations on the receipt of

compensation under the Act that arise

when a claimant files a tort suit against

either a beryllium vendor or an atomic

weapons employer. Section 30.615

provides that if a claimant filed such a

tort suit on or prior to October 30, 2000,

he or she will not be eligible to receive

compensation unless the suit is

dismissed no later than December 31,

2003.

Section 30.616 notes that if a claimant

files such a tort suit after October 30,

2000, he or she will not be eligible to

receive compensation unless the suit is

dismissed no later than April 30, 2003,

or 30 months after the date the claimant

first became aware that his or her illness

may be connected to the exposure

covered by the EEOICPA, whichever is

later. If a claimant files such a tort suit

after the later of either April 30, 2003,

or 30 months after the date the claimant

first became aware that his or her illness

may be connected to the exposure

covered by the EEOICPA, he or she also

will not be entitled to any benefits

under subtitle B of the EEOICPA. For

both of these provisions, ‘‘the date the

claimant first became aware’’ will be

deemed to be the date he or she received

either a reconstructed dose from HHS,

or a diagnosis of a covered beryllium

illness, as applicable.

Section 30.617 indicates that prior to

authorizing any payment under

§ 30.505, OWCP will require the

claimant or each surviving beneficiary

to execute and provide an affidavit

showing whether he or she complied

with the filing and dismissal

requirements of §§ 30.615 or 30.616, if

applicable. This section also authorizes

OWCP to require the submission of

supporting evidence to confirm the

particulars of any affidavit provided

thereunder.

Subpart H—Information for Medical

Providers

This subpart contains the information

that will be needed by medical

providers of services and supplies to

employees with approved claims under

the EEOICPA. It also contains the rules

for the submission of medical bills from

providers and employees, and describes

the fee schedule OWCP will apply to

charges for certain medical procedures

and services. The process described in

this subpart is similar to that used by

medical providers submitting bills for

services provided to claimants under

other federal programs, including the

FECA program administered by OWCP.

Medical Records and Bills

Section 30.701 sets out the process

medical providers must follow when

they submit bills for medical and

surgical treatment, appliances or

supplies furnished to employees, except

for treatment and supplies provided by

nursing homes. The provider must

itemize the charges on the standard

Health Insurance Claim Form, HCFA

1500 or OWCP 1500 (for professional

charges), the UB–92 (for hospitals), or

the Universal Claim Form (for

pharmacies), identify each service

performed using the Physician’s Current

Procedural Terminology (CPT) code, the

28958 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Health Care Financing Administration

Common Procedure Coding System

(HCPCS) code, the National Drug Code

(NDC), or the Revenue Center Code

(RCC), and state each diagnosed

condition and furnish the corresponding

diagnostic code using the ‘‘International

Classification of Disease, 9th Edition,

Clinical Modification’’ (ICD–9–CM).

Hospitals must submit charges for

medical and surgical treatment or

supplies on the UB–92 and identify

each outpatient radiology service,

outpatient pathology service and

physical therapy service performed

using HCPCS/CPT codes with a brief

narrative description. Other outpatient

hospital services for which HCPCS/CPT

codes exist must also be coded

individually using the coding scheme

noted in § 30.701. Services for which

there are no HCPCS/CPT codes available

may be identified using the RCCs

described in the current edition of the

‘‘National Uniform Billing Data

Elements Specifications.’’ The hospital

must also furnish the diagnostic code

using the ICD–9–CM, and if outpatient

hospital services include surgical and/or

invasive procedures, the hospital must

code each procedure using the proper

CPT/HCPCS codes and furnishing the

corresponding diagnostic codes using

the ICD–9–CM.

Pharmacies must itemize charges for

prescription medications, appliances, or

supplies on the Universal Claim Form.

Bills for prescription medications must

include the NDC assigned to the

product, the generic or trade name of

the drug provided, the prescription

number, the quantity provided, and the

date the prescription was filled. Nursing

homes must itemize charges for

appliances, supplies or services on the

provider’s billhead stationery.

Section 30.701(d) expressly indicates

that by submitting a bill and/or

accepting payment, the provider

signifies that the service for which

payment is sought was performed as

described and was necessary. The

provider also agrees to comply with the

provisions of subpart H that address the

rendering of treatment and/or the

process for seeking reimbursement for

medical services, including the

limitation imposed on the amount to be

paid for such services.

Section 30.702 describes the similar

process to be followed by employees

seeking reimbursement. If an employee

has paid bills for medical, surgical or

other services, supplies or appliances

due to an accepted occupational illness,

he or she should submit an itemized bill

on the HCFA 1500 or OWCP 1500. The

provider of such service must list each

diagnosed condition and furnish the

applicable ICD–9–CM code, and identify

each service performed using the

applicable HCPCS/CPT code. The bill

must be accompanied by evidence that

the employee paid the provider for the

service and a statement of the amount

paid. Copies of bills will not be

accepted for reimbursement unless they

bear the original signature of the

provider, with evidence of payment.

An employee will be only partially

reimbursed for a medical expense if the

amount he or she paid to a provider for

the service exceeds the maximum

allowable charge set by OWCP’s

schedule. If this happens, OWCP will

advise the employee of the maximum

allowable charge for the service in

question, and that it is his or her

responsibility to ask the provider to

refund the amount paid that exceeds the

maximum allowable charge. If the

provider does not comply with this

request within 60 days, OWCP will

begin the process of excluding the

provider from further participation in

the program. OWCP also has the

discretion to authorize reimbursement

to the employee for the excess amount.

The time limitation that will apply to

payment of medical bills submitted by

both providers and employees is

described in § 30.703. This section

provides that no bill will be paid if it

is submitted more than one year beyond

the end of the calendar year in which

the expense was incurred or the service

or supply was provided, or more than

one year beyond the end of the calendar

year in which the employee’s claim was

first accepted as compensable by OWCP,

whichever is later.

Medical Fee Schedule

Sections 30.705 through 30.710

describe the cost containment methods

that will be used when payment is made

for medical and other health services

furnished by physicians, hospitals and

other providers. These methods will not

be applied to charges for non-medical

services provided in nursing homes, or

to charges for appliances, supplies,

services or treatment furnished by

medical facilities of the U.S. Public

Health Service or the Departments of the

Army, Navy, Air Force and Veterans

Affairs.

For professional medical services,

OWCP will maintain a schedule of

maximum allowable fees for procedures

performed in a given locality. The fee

schedule consists of an assignment of a

value to procedures identified by

HCPCS/CPT code representing the

relative skill, effort, risk and time

required to perform the procedure, an

index based on a relative value scale

that considers skill, labor, overhead,

malpractice insurance and other related

costs, and a monetary value assignment

(conversion factor) for one unit of value

in each of the categories of service.

Generally, payment for a listed

procedure will not exceed the amount

derived by multiplying the relative

values for that procedure by the

geographic indices for services in that

area and by the dollar amount assigned

to one unit in that category of service.

However, where the time, effort and

skill required to perform a particular

procedure vary widely from one

occasion to the next, OWCP may choose

not to assign a relative value to that

procedure and instead make individual

determinations of the amount to be

paid. OWCP may also set fees without

regard to schedule limits for specially

authorized consultant examinations,

directed medical examinations, and

other specially authorized services.

Payment for medicinal drugs

prescribed by physicians may not

exceed the amount derived by

multiplying the average wholesale price

of the medication by the quantity or

amount provided, plus a dispensing fee.

All prescription medications identified

by NDC will be assigned an average

wholesale price representing the

product’s nationally recognized

wholesale price as determined by

surveys of manufacturers and

wholesalers. OWCP will establish the

dispensing fee. Payment for inpatient

medical services will be made using

condition-specific rates based on the

Prospective Payment System devised by

HCFA (42 CFR parts 412, 413, 424, 485,

and 489). Using this system, payment is

derived by multiplying the diagnosisrelated group weight assigned to the

hospital discharge by the providerspecific factors.

Sections 30.711 through 30.713

describe the process that will be

followed when a fee for a billed

procedure or cost is reduced, and what

the medical provider can do following

such a reduction. If the charge

submitted exceeds the maximum

amount according to the schedule,

payment will be made in the amount

allowed by the schedule for that service

and the provider will be notified that

payment was reduced in accordance

with the schedule. The provider will

have 30 days to request reconsideration

of the fee determination by the district

office with jurisdiction over the

employee’s claim. OWCP will only

reevaluate the paid amount if the

request is accompanied by evidence

showing that the code incorrectly

identified the procedure, that the

presence of a severe or concomitant

medical condition made treatment

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28959

especially difficult, or that the provider

possessed unusual qualifications (board

certification in a specialty is not

sufficient evidence of unusual

qualifications). Within 30 days of

receiving the request, the district office

will respond stating whether or not an

additional amount will be allowed. If

the district office continues to disallow

the contested amount, the provider may

apply to the Regional Director of the

region with jurisdiction over the district

office within 30 days. Within 60 days of

an application, the Regional Director

will issue a decision whether or not an

additional amount will be allowed. A

provider whose fee is partially paid may

not request reimbursement from the

employee for additional amounts.

Exclusion of Providers

Sections 30.715 through 30.726

describe the procedures OWCP will use

to exclude providers from payment

under this subpart to protect the

EEOICPA program from fraud and

abuse. After completing such inquiry he

or she deems appropriate, the Regional

Director may initiate the process of

excluding the provider from

participation in the EEOICPA program.

The Regional Director begins the

process by sending the provider a letter,

by certified mail and with return receipt

requested, containing a statement of the

grounds upon which exclusion will be

based, a summary of the information the

Regional Director relied on in reaching

an initial decision that exclusion

proceedings should begin, an invitation

to the provider to either resign

voluntarily from participation in the

EEOICPA program or to request a

decision on exclusion, a notice of the

provider’s right to request a formal

hearing before an administrative law

judge, and a notice that if the provider

fails to answer the letter of intent within

30 days, the Regional Director may

deem the allegations it contains to be

true and may order exclusion of the

provider without conducting any further

proceedings. If the provider submits an

answer, the Regional Director will issue

a written decision and will send a copy

of the decision to the provider by

certified mail, return receipt requested.

The decision will advise the provider of

his or her right to request, within 30

days of the date of the decision, a formal

hearing before an administrative law

judge.

Any request for a hearing must

identify the issues to be addressed and

must include any request for a more

definite statement by OWCP, any

request for the presentation of oral

argument or evidence, and any request

for a certification of questions

concerning professional medical

standards, medical ethics or medical

regulation for an advisory opinion from

a competent recognized professional

organization or federal, state or local

regulatory body. The Chief

Administrative Law Judge of the

Department of Labor will assign the

matter for an expedited hearing, and the

administrative law judge assigned to the

matter will consider the request for

hearing, act on all requests therein, and

issue a Notice of Hearing and Hearing

Schedule for the conduct of the hearing.

To the extent appropriate, proceedings

before the administrative law judge will

be governed by 29 CFR part 18. At the

conclusion of the hearing, the

administrative law judge will issue a

written decision and serve it on all

parties to the proceeding, their

representatives and OWCP. An

aggrieved party may, within 30 days of

the issuance of such decision, file a

petition for discretionary review with

the Director for Energy Employees

Occupational Illness Compensation on

one or more of the following grounds: a

finding or conclusion of material fact is

not supported by substantial evidence; a

necessary legal conclusion is erroneous;

the decision is contrary to law or to the

duly promulgated rules or decisions of

OWCP; a substantial question of law,

policy, or discretion is involved; or a

prejudicial error of procedure was

committed. If a petition is granted,

review will be limited to the questions

raised by the petition, and a petition not

granted within 20 days after receipt of

the petition is deemed denied.

After completing the exclusion

process, OWCP will notify all district

offices, the HCFA, and all employees

who are known to have had treatment,

services or supplies from the excluded

provider within the six-month period

immediately preceding the order of

exclusion. However, OWCP will not

refuse to reimburse an employee for

otherwise reimbursable medical

treatment, services or supplies if they

were rendered in an emergency, or if the

employee could not reasonably have

been expected to have known of the

exclusion. When an employee is

notified that his or her attending

physician has been excluded, OWCP

will provide the employee with an

opportunity to select a new attending

physician. An excluded provider may

apply for reinstatement one year after

the exclusion, unless the order provides

for a shorter period. An application for

reinstatement must be addressed to the

Director for Energy Employees

Occupational Illness Compensation, and

contain a statement of the basis for the

application. The Director for Energy

Employees Occupational Illness

Compensation will only order

reinstatement where reinstatement is

clearly consistent with the goal of this

subpart to protect the EEOICPA program

against fraud and abuse. To satisfy this

requirement the provider will have to

provide reasonable assurances that the

basis for the exclusion will not be

repeated.

V. Statutory Authority

Section 3611 of the Energy Employees

Occupational Illness Compensation

Program Act provides the general

statutory authority, which Executive

Order 13179 allocates to the Secretary,

to prescribe rules and regulations

necessary for the administration and

enforcement of the Act. Sections 3629

and 3630 provide specific authority

regarding medical treatment and care,

including determining the

appropriateness of charges. The Debt

Collection Act of 1982, as amended,

authorizes imposition of interest charges

and collection of debts by withholding

funds due the debtor.

VI. Executive Order 12866

This rule is being treated as a

‘‘significant regulatory action,’’ within

the meaning of Executive Order 12866,

because it is economically significant, as

defined in section 3(f)(1) of E.O. 12866.

The payment of the benefits provided

for by the EEOICPA, through the

program administered pursuant to this

regulatory action will have an annual

effect on the economy of $100 million

or more. However, the rule will not

adversely affect in a material way the

economy, a sector of the economy,

productivity, jobs, the environment,

public health or safety, or State, local,

or tribal governments or communities,

as required by section 3(f)(1) of E.O.

12866. The proposed rule is also a

‘‘significant regulatory action’’ because

it meets the criteria of Section 3(f)(4) of

that Order in that it raises novel or legal

policy issues arising out of the legal

mandate established by the EEOICPA.

Based upon the factors and

assumptions set forth below, DOL’s

estimate of the aggregate cost of benefits

and administrative expenses of this

regulatory action implementing the

EEOICPA is, in millions of dollars

(estimates for FY2003, FY2004 and

FY2005 are preliminary and will be

reviewed during the budget formulation

process):

28960 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

FY2001 FY2002 FY2003 FY2004 FY2005

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

Benefits .................................................................................................................................. 358 597 477 253 222

The Department’s estimate of the

benefits to be paid pursuant to the

EEOICPA and of its administrative costs

of providing those benefits is based on

data collected from other Federal

agencies, assumptions regarding the

incidence of cancer, beryllium disease

and silicosis in the covered population,

life expectancy tables, and its

experience in estimating administrative

and medical costs of workers’

compensation programs. Specifically,

benefit estimates for cancer claims are

based on figures provided by DOE

concerning the number of DOE/

contractor employees, known cancer

incidence and survival rates in the

general population obtained from the

National Cancer Institute. Based on the

number of claims likely to be accepted,

the cost of lump-sum payments to these

claimants is relatively easily

determined. These benefit estimates

further reflect contemplated medical

costs of $1500 per year for 90% of the

covered claimants, while the remaining

10% incur $125,000 medical costs for

the year because they are undergoing

intensive in-hospital medical treatment.

Benefits estimates for beryllium

exposure are based on known incidence

rates, known numbers of claimants with

beryllium disease, exposed population

figures (all of which were obtained from

DOE), and medical costs of $3000 per

year for beryllium sensitivity, $4000 per

year for mild chronic beryllium disease,

and $9000 per year for more severe

chronic beryllium disease. Benefit

estimates for silicosis are based upon

figures obtained from DOE concerning

the number of exposed employees and

the expected incidence of silicosis, and

medical costs of $4000 per year. Benefit

estimates for the claims based upon

receipt of an award by uranium

employees pursuant to § 5 of the

Radiation Exposure Compensation Act

are based on figures for the number of

claims provided by DOJ, and $4000 per

year in medical costs.

Because the statute provides benefits

for covered workers and their survivors

who were exposed to radiation,

beryllium and silica during a period of

almost 60 years, an assumption was

made that DOL would receive

thousands of claims in the initial few

years after the effective date of the

statute, and that the number of claims

would decrease substantially after the

first few years. Administrative cost

estimates were developed based upon

DOL’s experience in administering other

workers’ compensation programs, using

calculations of the number of incoming

claims and forecasting the necessary

full-time equivalents and other

resources necessary to efficiently

administer the program.

No more extensive economic impact

analysis is necessary because the

regulatory action only addresses the

transfer of funds from the federal

government to individuals who qualify

under the EEOICPA and to providers of

medical services in that program. This

regulatory action has no affect on the

functioning of the economy and private

markets, on the health and safety of the

general population, or on the natural

environment. In addition, because this

regulation implements a statutory

mandate, there are no feasible

alternatives to this regulatory action.

Finally, to the extent that policy choices

have been made in interpreting the

statutory terms, those choices have no

significant impact on the cost of this

regulatory action. Such policy choices

may affect who is entitled to receive

benefits (as in the case of potential

survivors), but will not have a

significant impact on the number of

eligible recipients or the level of

benefits to which they are entitled.

OMB has reviewed the rule for

consistency with the President’s

priorities and the principles set forth in

E.O. 12866.

VII. Small Business Regulatory

Enforcement Fairness Act

As required by Congress under the

Small Business Regulatory Enforcement

Fairness Act of 1996 (5 U.S.C. 801 et

seq.), the Department will report to

Congress promulgation of this rule prior

to its effective date. The report will state

that the Department has concluded that

this rule is a ‘‘major rule’’ because it

will likely result in an annual effect on

the economy of $100 million or more.

VIII. Unfunded Mandates Reform Act

of 1995

Title II of the Unfunded Mandates

Reform Act of 1995 (2 U.S.C. 1531 et

seq.) directs agencies to assess the

effects of Federal regulatory actions on

State, local, and tribal governments, and

the private sector, ‘‘other than to the

extent that such regulations incorporate

requirements specifically set forth in

law.’’ For purposes of the Unfunded

Mandates Reform Act, this rule does not

include any Federal mandate that may

result in increased annual expenditures

in excess of $100 million by State, local

or tribal governments in the aggregate,

or by the private sector.

IX. Regulatory Flexibility Act

The Department believes that this

interim final rule will have ‘‘no

significant economic impact upon a

substantial number of small entities’’

within the meaning of the RFA. The

provisions of this rule applying cost

control measures to payments for

medical expenses are the only ones that

may have a monetary effect on small

businesses. That effect will not be

significant for a substantial number of

those businesses, however, for no single

business will bill a significant amount

to OWCP for EEOICPA-related services,

and the effect on those bills which are

submitted, while a worthwhile savings

for the Government in the aggregate,

will be not be significant for individual

businesses affected.

The cost containment provisions are:

(1) a set schedule of maximum

allowable fees for professional medical

services; (2) a set schedule for payment

of pharmacy bills; and (3) a prospective

payment system for hospital inpatient

services. The methodologies used for

the first two of these provisions are

explained in the text of the preamble to

this interim final rule, which essentially

adopts payment systems that are

commonplace in the industry. Their

adoption by OWCP for use in

connection with its administration of

the EEOICPA program will therefore

result in efficiencies for the Government

and providers. The Government will

benefit because OWCP did not develop

new cost containment measures, but

rather adopted existing and wellrecognized measures that were already

in place. The providers benefit because

submitting a bill and receiving a

payment will be almost the same as

submitting it to Medicare, a program

with which they are already familiar

and have existing systems in place for

billing—they will not have to incur

unnecessary administrative costs to

learn a new process because the

EEOICPA bill process will not be readily

distinguishable from the Medicare

process. Similarly, pharmacies are used

to billing through clearing houses and

having their charges subject to limits by

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28961

private insurers. By adopting the

uniform billing statement and a familiar

cost control methodology, OWCP has

kept close to the billing environment

with which pharmacies are already

familiar. The methods chosen, therefore,

represent systems familiar to the

providers. The third of these three

provisions will not have an effect on a

substantial number of ‘‘small entities’’

under SBA standards, since most

hospitals providing services for

EEOICPA-covered conditions will have

annual receipts that exceed the set

maximum.

The implementation of these cost

containment methods will have no

significant effect on any single medical

professional or pharmacy since they are

already used by Medicare, CHAMPUS,

and the Departments of Labor and

Veterans Affairs, among Government

entities, and by private insurance

carriers. In actual terms, the amount by

which these provider bills might be

reduced will not have a significant

impact on any one small entity since

these charges are currently being

processed by other payers applying

similar cost containment provisions.

The costs to providers whose charges

may be reduced also will be relatively

small because EEOICPA bills simply

will not represent a large share of any

single provider’s total business. Since

the small universe of potential

claimants is spread across the United

States and this bill processing system

will cover only those employees who

have sustained a covered illness and

require medical treatment on or after

July 31, 2001 (out of the projected total

of 23,201 claims the Department

estimates it will accept over the next

five years, only about 14,000 of these

will involve payment for medical

treatment), the number of bills

submitted by any one small entity

which may be subject to these

provisions is likely to be very small.

Therefore, the ‘‘cost’’ of this rule to any

one pharmacy or medical professional

will be negligible. On the other hand,

OWCP will see substantial aggregate

cost savings that will benefit both

OWCP (by strengthening the integrity of

the program) and the taxpayers to whom

the ultimate costs of the program are

eventually charged through

appropriations.

The Assistant Secretary for

Employment Standards has certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

rule will not have a significant impact

on a substantial number of small

entities. The factual basis for this

certification has been provided above.

Accordingly, no regulatory impact

analysis is required.

X. Executive Order 12988 (Civil Justice)

This regulation has been drafted and

reviewed in accordance with Executive

Order 12988, Civil Justice Reform and

will not unduly burden the Federal

court system. While the EEOICPA does

not provide any specific procedures

claimants must follow in order to seek

review of decisions on their claims,

substantial numbers of claimants will

likely seek review of adverse decisions

in the United States district courts

pursuant to the Administrative

Procedure Act. This regulation should

minimize the burden placed upon the

courts by litigation seeking to challenge

decisions under EEOICPA by providing

claimants an opportunity to seek

administrative review of adverse

decisions and by providing a clear legal

standard for affected conduct. It has

been reviewed carefully to eliminate

drafting errors and ambiguities.

XI. Executive Order 13132 (Federalism)

The Department has reviewed this

rule in accordance with Executive Order

13132 regarding federalism, and has

determined that it does not have

‘‘federalism implications.’’ The rule

does not ‘‘have substantial direct effects

on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

XII. Executive Order 13045 (Protection

of Children From Environmental,

Health Risks and Safety Risks)

In accordance with Executive Order

13045, OWCP has evaluated the

environmental health and safety effects

of this rule on children. The agency has

determined that the final rule will have

no effect on children.

XIII. Submission to Congress and the

General Accounting Office

In accordance with the Small

Business Regulatory Enforcement

Fairness Act, the Department will

submit to each House of the Congress

and to the Comptroller General a report

regarding the issuance of this final rule

prior to the effective date set forth at the

outset of this notice. The report will

note that this rule constitutes a ‘‘major

rule’’ as defined by 5 U.S.C. 804(2).

XIV. Catalog of Federal Domestic

Assistance Number

This program is not listed in the

Catalog of Federal Domestic Assistance.

List of Subjects

20 CFR Part 1

Administrative practice and

procedure, Claims, Government

Employees, Labor, Workers’

Compensation.

20 CFR Part 30

Administrative practice and

procedure, Cancer, Claims, Kidney

Diseases, Leukemia, Lung Diseases,

Miners, Radioactive Materials, Tort

claims, Underground mining, Uranium,

Workers’ Compensation.

Text of the Rule

For the reasons set forth in the

preamble, 20 CFR Chapter 1 is amended

as follows:

Subchapter A—Organization and

Procedures

1. Part 1 is revised to read as follows:

PART 1—PERFORMANCE OF

FUNCTIONS UNDER THIS CHAPTER

Sec.

1.1 Under what authority was the Office of

Workers’ Compensation Programs

established?

1.2 What functions are assigned to OWCP?

1.3 What rules are contained in this

chapter?

1.4 Where are other rules concerning OWCP

functions found?

1.5 When was the former Bureau of

Employees’ Compensation abolished?

1.6 How were many of OWCP’s current

functions administered in the past?

Authority: 5 U.S.C. 301, 8145, 8149

(Reorganization Plan No. 6 of 1950, 15 FR

3174, 64 Stat. 1263); Executive Order 13179,

65 FR 77487, 3 CFR, 2000 Comp., p. 321;

Secretary of Labor’s Order No. 13–71, 36 FR

8155; Employment Standards Order No. 2–

74, 39 FR 34722.

§ 1.1 Under what authority was the Office

of Workers’ Compensation Programs

established?

The Assistant Secretary of Labor for

Employment Standards, by authority

vested in him by the Secretary of Labor

in Secretary’s Order No. 13–71, 36 FR

8755, established in the Employment

Standards Administration an Office of

Workers’ Compensation Programs

(OWCP) by Employment Standards

Order No. 2–74, 39 FR 34722. The

Assistant Secretary subsequently

designated as the head thereof a Deputy

Assistant Secretary for Workers’

Compensation Programs who, under the

general supervision of the Assistant

Secretary, administers the programs

assigned to that Office by the Assistant

Secretary.

28962 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

§ 1.2 What functions are assigned to

OWCP?

The Assistant Secretary has delegated

authority and assigned responsibility to

the Deputy Assistant Secretary for

Workers’ Compensation Programs for

the Department of Labor’s programs

under the following statutes:

(a) The Federal Employees’

Compensation Act, as amended and

extended (5 U.S.C. 8101 et seq.), except

5 U.S.C. 8149 as it pertains to the

Employees’ Compensation Appeals

Board.

(b) The War Hazards Compensation

Act (42 U.S.C. 1701 et seq.).

(c) The War Claims Act (50 U.S.C.

App. 2003).

(d) The Energy Employees

Occupational Illness Compensation

Program Act, Title XXXVI of the Floyd

D. Spence National Defense

Authorization Act for Fiscal Year 2001,

Pub. L. 106–398 (114 Stat. 1654, 1654A–

1231), except activities, pursuant to

Executive Order 13179 (‘‘Providing

Compensation to America’s Nuclear

Weapons Workers’’) of December 7,

2000, assigned to the Secretary of Health

and Human Services, the Secretary of

Energy and the Attorney General.

(e) The Longshore and Harbor

Workers’ Compensation Act, as

amended and extended (33 U.S.C. 901 et

seq.), except: 33 U.S.C. 919(d) with

respect to administrative law judges in

the Office of Administrative Law Judges;

33 U.S.C. 921(b) as it pertains to the

Benefits Review Board; and activities,

pursuant to 33 U.S.C. 941, assigned to

the Assistant Secretary for Occupational

Safety and Health.

(f) The Black Lung Benefits Act, as

amended (30 U.S.C. 901 et seq.).

§ 1.3 What rules are contained in this

chapter?

The rules in this chapter are those

governing the OWCP functions under

the Federal Employees’ Compensation

Act, the War Hazards Compensation

Act, the War Claims Act and the Energy

Employees Occupational Illness

Compensation Program Act.

§ 1.4 Where are other rules concerning

OWCP functions found?

(a) The rules of the OWCP governing

its functions under the Longshore and

Harbor Workers’ Compensation Act and

its extensions are set forth in subchapter

A of chapter VI of this title.

(b) The rules of the OWCP governing

its functions under the Black Lung

Benefits Act program are set forth in

subchapter B of chapter VI of this title.

(c) The rules and regulations of the

Employees’ Compensation Appeals

Board are set forth in chapter IV of this

title.

(d) The rules and regulations of the

Benefits Review Board are set forth in

Chapter VII of this title.

§ 1.5 When was the former Bureau of

Employees’ Compensation abolished?

By Secretary of Labor’s Order issued

September 23, 1974, 39 FR 34723,

issued concurrently with Employment

Standards Order 2–74, 39 FR 34722, the

Secretary revoked the prior Secretary’s

Order No. 18–67, 32 FR 12979, which

had delegated authority and assigned

responsibility for the various workers’

compensation programs enumerated in

§ 1.2, except the Black Lung Benefits

program and the Energy Employees

Occupational Illness Compensation

program not then in existence, to the

Director of the former Bureau of

Employees’ Compensation.

§ 1.6 How were many of OWCP’s current

functions administered in the past?

(a) Administration of the Federal

Employees’ Compensation Act and the

Longshore and Harbor Workers’

Compensation Act was initially vested

in an independent establishment known

as the U.S. Employees’ Compensation

Commission. By Reorganization Plan

No. 2 of 1946 (3 CFR 1943–1949 Comp.,

p. 1064; 60 Stat. 1095, effective July 16,

1946), the Commission was abolished

and its functions were transferred to the

Federal Security Agency to be

performed by a newly created Bureau of

Employees’ Compensation within such

Agency. By Reorganization Plan No. 19

of 1950 (15 FR 3178, 64 Stat. 1263) said

Bureau was transferred to the

Department of Labor (DOL), and the

authority formerly vested in the

Administrator, Federal Security Agency,

was vested in the Secretary of Labor. By

Reorganization Plan No. 6 of 1950 (15

FR 3174, 64 Stat. 1263), the Secretary of

Labor was authorized to make from time

to time such provisions as he shall deem

appropriate, authorizing the

performance of any of his functions by

any other officer, agency, or employee of

the DOL.

(b) In 1972, two separate

organizational units were established

within the Bureau: an Office of

Workmen’s Compensation Programs (37

FR 20533) and an Office of Federal

Employees’ Compensation (37 FR

22979). In 1974, these two units were

abolished and one organizational unit,

the Office of Workers’ Compensation

Programs (OWCP), was established in

lieu of the Bureau of Employees’

Compensation (39 FR 34722).

2. Subchapter C consisting of Part 30

is added to read as follows:

Subchapter C—Energy Employees

Occupational Illness Compensation

Program Act

PART 30—CLAIMS FOR

COMPENSATION UNDER THE

ENERGY EMPLOYEES

OCCUPATIONAL ILLNESS

COMPENSATION PROGRAM ACT

Subpart A—General Provisions

Introduction

Sec.

30.0 What are the provisions of the

EEOICPA, in general?

30.1 What rules govern the administration

of the EEOICPA and this chapter?

30.2 In general, how have the tasks

associated with the administration of the

EEOICPA claims process been assigned?

30.3 What do these regulations contain?

Definitions

30.5 What are the definitions used in this

part?

Information in Program Records

30.10 Are all OWCP records relating to

claims filed under the EEOICPA

considered confidential?

30.11 Who maintains custody and control

of claim records?

30.12 What process is used by a person who

wants to obtain copies of or amend

EEOICPA claim records?

Rights and Penalties

30.15 May EEOICPA benefits be assigned or

transferred?

30.16 What penalties may be imposed in

connection with a claim under the

EEOICPA?

30.17 Is a beneficiary who defrauds the

government in connection with a claim

for benefits still entitled to those

benefits?

Subpart B—Filing Claims; Evidence and

Burden of Proof; Special Procedures for

Certain Cancer Claims

Claims for Occupational Illness—Employee

or Survivor’s Actions

30.100 In general, how does an employee

file for benefits?

30.101 In general, how is a survivor’s claim

filed?

30.102 How does a claimant make sure the

OWCP has the evidence necessary to

process the claim?

Claims for Occupational Illness—Actions of

DOE

30.105 What must DOE do after an

employee files a claim for an

occupational illness?

30.106 What should DOE do when an

employee with a claim for an

occupational disease dies?

Evidence and Burden of Proof

30.110 Who is entitled to compensation

under the Act?

30.111 What is the claimant’s responsibility

with respect to burden of proof,

production of documents, presumptions,

and affidavits?

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28963

30.112 What are the requirements for

written medical documentation,

contemporaneous records, and other

records or documents?

Special Procedures for Certain Cancer

Claims

30.115 What does OWCP do once it

determines that a covered employee who

is not a member of the Special Exposure

Cohort (or a survivor of such an

employee) has established that he or she

contracted cancer under § 30.211(b)?

Subpart C—Eligibility Criteria

General Provisions

30.200 What is the scope of this subpart?

Eligibility Criteria for Claims Relating to

Covered Beryllium Illness

30.205 What are the criteria for eligibility

for benefits relating to covered beryllium

illness?

30.206 How does a claimant prove that the

employee was a ‘‘covered beryllium

employee’’ exposed to beryllium dust,

particles or vapor in the performance of

duty?

30.207 How does a claimant prove

diagnosis of a covered beryllium disease?

Eligibility Criteria for Claims Relating to

Cancer

30.210 What are the criteria for eligibility

for benefits relating to cancer?

30.211 How does a claimant establish that

the employee has or had contracted

cancer?

30.212 How does a claimant establish that

the cancer was at least as likely as not

related to the employment at the DOE

facility or the atomic weapons employer

facility?

30.213 How does a claimant establish that

the employee is a member of the Special

Exposure Cohort?

30.214 How does a claimant establish that

the employee has been diagnosed with

cancer or has sustained a consequential

injury, illness or disease?

Eligibility Criteria for Chronic Silicosis

30.215 What are the criteria for eligibility

for benefits relating to chronic silicosis?

30.216 How does a claimant prove exposure

to silica in the performance of duty?

30.217 How does a claimant prove the

covered employee’s diagnosis of chronic

silicosis?

Eligibility of Certain Uranium Employees

30.220 What are the criteria for eligibility

for benefits for certain uranium

employees?

Subpart D—Adjudicatory Process

30.300 What process will OWCP use to

decide claims and to provide for

administrative review of those decisions?

Recommended Decisions on Claims

30.305 How does OWCP determine

entitlement to EEOICPA compensation?

30.306 What does the recommended

decision contain?

30.307 To whom is the recommended

decision sent?

Hearings and Final Decisions on Claims

30.310 How does a claimant object to a

recommended decision on a claim?

30.311 What action will the FAB take if the

claimant does not file objections to the

recommended decision?

30.312 What action will the FAB take if the

claimant files objections but does not

request a hearing?

30.313 How is a review of the written

record conducted?

30.314 How is a hearing conducted?

30.315 May a claimant postpone a hearing?

30.316 How does the FAB issue a final

decision on a claim?

30.317 Can the FAB request a further

response from the claimant or remand a

claim to the district office?

30.318 Can the FAB review a determination

by HHS with respect to an employee’s

dose reconstruction?

30.319 May a claimant request

reconsideration of a decision to the FAB?

Modification

30.320 Can a final decision be modified

once the period for requesting

reconsideration has expired?

Subpart E—Medical and Related Benefits

Medical Treatment and Related Issues

30.400 What are the basic rules for

obtaining medical care?

30.401 What are the special rules for the

services of chiropractors?

30.402 What are the special rules for the

services of clinical psychologists?

30.403 Will OWCP pay for the services of

an attendant?

30.404 Will OWCP pay for transportation to

obtain medical treatment?

30.405 After selecting a treating physician,

may an employee choose to be treated by

another physician instead?

30.406 Are there any exceptions to these

procedures for obtaining medical care?

Directed Medical Examinations

30.410 Can OWCP require an employee to

be examined by another physician?

30.411 What happens if the opinion of the

physician selected by OWCP differs from

the opinion of the physician selected by

the employee?

30.412 Who pays for second opinion and

referee examinations?

Medical Reports

30.415 What are the requirements for

medical reports?

30.416 How and when should the medical

report be submitted?

30.417 What additional medical

information may OWCP require to

support continuing payment of benefits?

Medical Bills

30.420 How are medical bills submitted?

30.421 What are the time frames for

submitting bills?

30.422 If OWCP reimburses an employee

only partially for a medical expense,

must the provider refund the balance of

the amount paid to the employee?

Subpart F—Survivors; Payments and

Offsets; Overpayments

Survivors

30.500 What special statutory definitions

apply to survivors under the EEOICPA?

30.501 How will OWCP apply that order of

precedence to determine what survivors

are entitled to receive under the

EEOICPA?

30.502 When is entitlement for survivors

determined for purposes of EEOICPA?

Payment of Claims and Offset for Certain

Payments

30.505 What are the procedures for

payment of claims?

30.506 What compensation will be

provided to claimants who only establish

beryllium sensitivity?

30.507 What is beryllium sensitivity

monitoring?

Overpayments

30.510 How does OWCP notify an

individual of a payment made on a

claim?

30.511 What is an ‘‘overpayment’’ for

purposes of the EEOICPA?

30.512 How does OWCP determine that a

beneficiary owes a debt as the result of

the creation of an overpayment?

30.513 How are overpayments collected?

Subpart G—Special Provisions

Representation

30.600 May a claimant designate a

representative?

30.601 Who may serve as a representative?

30.602 Who is responsible for paying the

representative’s fee?

Third Party Liability

30.605 What rights does the United States

have upon payment of compensation

under the EEOICPA?

30.606 Under what circumstances must a

recovery of money or other property in

connection with an illness for which

benefits are payable under the EEOICPA

be reported to OWCP?

30.607 How is a structured settlement (that

is, a settlement providing for receipt of

funds over a specified period of time)

treated for purposes of reporting the

recovery?

30.608 How does the United States

calculate the amount to which it is

subrogated?

30.609 Is a settlement or judgment received

as a result of allegations of medical

malpractice in treating an illness covered

by the EEOICPA a recovery that must be

reported to OWCP?

30.610 Are payments to an employee or

eligible surviving beneficiary as a result

of an insurance policy which the

employee or eligible surviving

beneficiary has purchased a recovery

that must be reported to OWCP?

30.611 If a settlement or judgment is

received for more than one medical

condition, can the amount paid on a

single EEOICPA claim be attributed to

different conditions for purposes of

calculating the amount to which the

United States is subrogated?

28964 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Election of Remedy Against Beryllium

Vendors and Atomic Weapons Employers

30.615 Can a claimant receive benefits

under the EEOICPA if he or she filed a

tort suit against either a beryllium

vendor or an atomic weapons employer

on or prior to October 30, 2000?

30.616 Can a claimant receive benefits

under the EEOICPA if he or she filed a

tort suit against either a beryllium

vendor or an atomic weapons employer

after October 30, 2000?

30.617 How will OWCP ascertain whether a

claimant filed a tort suit against either a

beryllium vendor or an atomic weapons

employer and whether such claimant is

entitled to benefits under the EEOICPA?

Subpart H—Information for Medical

Providers

Medical Records and Bills

30.700 What kind of medical records must

providers keep?

30.701 How are medical bills to be

submitted?

30.702 How should an employee prepare

and submit requests for reimbursement

for medical expenses, transportation

costs, loss of wages, and incidental

expenses?

30.703 What are the time limitations on

OWCP’s payment of bills?

Medical Fee Schedule

30.705 What services are covered by the

OWCP fee schedule?

30.706 How are the maximum fees defined?

30.707 How are payments for particular

services calculated?

30.708 Does the fee schedule apply to every

kind of procedure?

30.709 How are payments for medicinal

drugs determined?

30.710 How are payments for inpatient

medical services determined?

30.711 When and how are fees reduced?

30.712 If OWCP reduces a fee, may a

provider request reconsideration of the

reduction?

30.713 If OWCP reduces a fee, may a

provider bill the employee for the

balance?

Exclusion of Providers

30.715 What are the grounds for excluding

a provider for payment under this part?

30.716 What will cause OWCP to

automatically exclude a physician or

other provider of medical services and

supplies?

30.717 When are OWCP’s exclusion

procedures initiated?

30.718 How is a provider notified of

OWCP’s intent to exclude him or her?

30.719 What requirements must the

provider’s reply and OWCP’s decision

meet?

30.720 How can an excluded provider

request a hearing?

30.721 How are hearings assigned and

scheduled?

30.722 How are advisory opinions

obtained?

30.723 How will the administrative law

judge conduct the hearing and issue the

recommended decision?

30.724 How can a party request review by

OWCP of the administrative law judge’s

recommended decision?

30.725 What are the effects of nonautomatic exclusion?

30.726 How can an excluded provider be

reinstated?

Authority: 5 U.S.C. 301; Executive Order

13179, 65 FR 77487, 3 CFR, 2000 Comp., p.

321.

Subpart A—General Provisions

Introduction

§ 30.0 What are the provisions of the

EEOICPA, in general?

The Energy Employees Occupational

Illness Compensation Program Act

(EEOICPA), Pub. L. 106–398 (114 Stat.

1654, 1654A–1231), provides for the

payment of compensation benefits to

covered employees and, where

applicable, survivors of such employees,

of the United States Department of

Energy, its predecessor agencies and

certain of its contractors and

subcontractors. It also provides for the

payment of compensation to certain

persons already found eligible for

benefits under section 5 of the Radiation

Exposure Compensation Act (42 U.S.C.

2210 note) and, where applicable,

survivors of such employees. The

regulations in this part describe the

rules for filing, processing, and paying

claims for benefits under the EEOICPA.

(a) The EEOICPA provides for the

payment of either monetary

compensation for the disability of a

covered employee due to an

occupational illness or for monitoring

for beryllium sensitivity, as well as for

medical and related benefits for such

illness.

(b) All types of benefits and

conditions of eligibility listed in this

section are subject to the provisions of

the EEOICPA and of this part.

§ 30.1 What rules govern the

administration of the EEOICPA and this

chapter?

In accordance with the EEOICPA and

E.O. 13179, the Secretary of Labor has

delegated the primary responsibility for

administering the EEOICPA, except for

those activities assigned to the Secretary

of Health and Human Services, the

Secretary of Energy and the Attorney

General, to the Assistant Secretary for

Employment Standards. The Assistant

Secretary, in turn, has delegated the

responsibility for administering the

EEOICPA to the Deputy Assistant

Secretary for Workers’ Compensation

Programs. Except as otherwise provided

by law, the Deputy Assistant Secretary

for Workers’ Compensation Programs

and his or her designees have the

exclusive authority to administer,

interpret and enforce the provisions of

the EEOICPA.

§ 30.2 In general, how have the tasks

associated with the administration of the

EEOICPA claims process been assigned?

(a) In E.O. 13179, the President

assigned various tasks associated with

the administration of the EEOICPA

claims process among the Secretaries of

Labor, Health and Human Services and

Energy, and the Attorney General. In

light of the fact that the Secretary of

Labor has been assigned primary

responsibility for administering the

EEOICPA, almost the entire claims

process is within the exclusive control

of OWCP. This means that claimants file

their claims with OWCP, and OWCP is

responsible for granting or denying

compensation under the Act (see

§§ 30.100, 30.101, and 30.505 through

30.513). OWCP also provides an

administrative review process for

claimants who disagree with its

recommended and final adverse

decisions (see §§ 30.300 through

30.320).

(b) However, HHS has exclusive

control of a portion of the claims

process involving certain cancer claims,

and is therefore responsible for

providing reconstructed doses for these

claims (see § 30.115). HHS is also

responsible for promulgating regulations

establishing the guidelines that will be

used by OWCP to assess the likelihood

that an individual with cancer sustained

the cancer in the performance of duty

(see § 30.210). DOE and DOJ are

responsible for, among other tasks,

notifying potential claimants and

submitting evidence that OWCP deems

necessary for its adjudication of claims

under the EEOICPA (see §§ 30.105,

30.106, and 30.111).

§ 30.3 What do these regulations contain?

This part 30 sets forth the regulations

governing administration of all claims

filed under the EEOICPA, except to the

extent specified in certain provisions.

Its provisions are intended to assist

persons seeking benefits under the

EEOICPA, as well as personnel in the

various federal agencies and the DOL

who process claims filed under the

EEOICPA or who perform

administrative functions with respect to

the EEOICPA. The various subparts of

this part contain the following:

(a) Subpart A: the general statutory

and administrative framework for

processing claims under the EEOICPA.

It contains a statement of purpose and

scope, together with definitions of

terms, information regarding the

disclosure of OWCP records, and a

description of rights and penalties

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28965

under the EEOICPA, including

convictions for fraud.

(b) Subpart B: the rules for filing

claims for benefits under the EEOICPA.

It also addresses general standards

regarding necessary evidence and the

burden of proof, descriptions of basic

forms and special procedures for certain

cancer claims.

(c) Subpart C: the eligibility criteria

for conditions covered by the EEOICPA.

(d) Subpart D: the rules governing the

adjudication process leading from

recommended to final decisions made

on claims filed under the EEOICPA. It

also describes the OWCP hearing and

modification processes.

(e) Subpart E: the rules governing

medical care, second opinion and

referee medical examinations directed

by OWCP, and medical reports and

records in general. It also addresses the

kinds of treatment that may be

authorized and how medical bills are

paid.

(f) Subpart F: the rules relating to the

payment of monetary compensation. It

includes the provisions for identifying

and processing overpayments of

compensation.

(g) Subpart G: the rules concerning

legal representation, subrogation of the

United States, and the election of

remedies against beryllium vendors and

atomic weapons employers.

(h) Subpart H: information for

medical providers. It includes rules for

medical reports, medical bills, and the

OWCP medical fee schedule, as well as

the provisions for exclusion of medical

providers.

Definitions

§ 30.5 What are the definitions used in this

part?

(a) Act or EEOICPA means the Energy

Employees Occupational Illness

Compensation Program Act of 2000,

Public Law 106–398.

(b) Atomic weapon means any device

utilizing atomic energy, exclusive of the

means for transporting or propelling the

device (where such means is a separable

and divisible part of the device), the

principle purpose of which is for use as,

or for development of, a weapon, a

weapon prototype, or a weapon test

device.

(c) Atomic weapons employee means

an individual employed by an atomic

weapons employer during a period

when the employer was processing or

producing, for the use by the United

States, material that emitted radiation

and was used in the production of an

atomic weapon, excluding uranium

mining and milling.

(d) Atomic weapons employer means

any entity, other than the United States,

that:

(1) Processed or produced, for use by

the United States, material that emitted

radiation and was used in the

production of an atomic weapon,

excluding uranium mining and milling;

and

(2) Is designated by the Secretary of

Energy as an atomic weapons employer

for purposes of the compensation

program.

(e) Atomic weapons employer facility

means a facility, owned by an atomic

weapons employer, that is or was used

to process or produce, for use by the

United States, material that emitted

radiation and was used in the

production of an atomic weapon,

excluding uranium mining or milling.

(f) Attorney General means the

Attorney General of the United States or

the United States Department of Justice

(DOJ).

(g) Benefit or Compensation means

the money the Department pays to or on

behalf of a covered employee from the

Energy Employees Occupational Illness

Compensation Fund. However, the term

‘‘compensation’’ used in section 3647(b)

of the EEOICPA (with respect to

entitlement to only one payment of

compensation) means only the

payments specified in section 3628(a)(1)

($150,000 lump sum payment), and in

section 3630(a) ($50,000 payment to

beneficiaries under section 5 of the

RECA). Except as used in section

3647(b), these two terms also include

any other amounts paid out of the Fund

for such things as medical treatment,

monitoring, examinations, services,

appliances and supplies as well as for

transportation and expenses incident to

the securing of such medical treatment,

monitoring, examinations, services,

appliances, and supplies.

(h) Beryllium sensitization or

sensitivity means that the individual has

an abnormal beryllium lymphocyte

proliferation test (LPT) on either blood

or lung lavage cells.

(i) Beryllium vendor includes any of

the facilities designated as such in the

list periodically published in the

Federal Register by the DOE.

(j) Chronic silicosis means a nonmalignant lung disease if :

(1) The initial occupational exposure

to silica dust preceded the onset of

silicosis by at least 10 years; and

(2) A written diagnosis of silicosis is

made by a medical doctor and is

accompanied by:

(i) A chest radiograph, interpreted by

an individual certified by the National

Institute for Occupational Safety and

Health as a B reader, classifying the

existence of pneumoconioses of

category 1/1 or higher;

(ii) Results from a computer assisted

tomograph or other imaging technique

that are consistent with silicosis; or

(iii) Lung biopsy findings consistent

with silicosis.

(k) Claim means a written assertion of

an individual’s entitlement to benefits

under the EEOICPA, submitted in a

manner authorized by this part.

(l) Claimant means the individual

who is alleged to satisfy the criteria for

compensation under the Act.

(m) Compensation fund or fund

means the fund established on the books

of the Treasury for payment of benefits

and compensation under the Energy

Employees Occupational Illness

Compensation Program Act.

(n) Contemporaneous record means

any document created at or around the

time of the event that is recorded in the

document.

(o) Covered beryllium illness means

any of the following:

(1) Beryllium sensitivity as

established by an abnormal LPT

performed on either blood or lung

lavage cells.

(2) Established chronic beryllium

disease (see § 30.207(c)).

(3) Any injury, illness, impairment, or

disability sustained as a consequence of

a covered beryllium illness referred to

in paragraph (o)(1) or (2) of this section.

(p) Covered employee means a

covered beryllium employee (see

§ 30.205), a covered employee with

cancer (see § 30.210), a covered

employee with chronic silicosis (see

§ 30.215), or a covered uranium

employee (see paragraph (q) of this

section).

(q) Covered uranium employee means

an employee who has been informed by

the Department of Justice that he or she

has been determined to be entitled to

compensation under section 5 of the

Radiation Exposure Compensation Act,

as amended, (42 U.S.C. 2210 note) for a

claim made under that Act.

(r) Current or former employee as

defined in 5 U.S.C. 8101(1) as used in

§ 30.205 means an individual who fits

within one of the following listed

groups:

(1) A civil officer or employee in any

branch of the Government of the United

States, including an officer or employee

of an instrumentality wholly owned by

the United States;

(2) An individual rendering personal

service to the United States similar to

the service of a civil officer or employee

of the United States, without pay or for

nominal pay, when a statute authorizes

the acceptance or use of the service, or

28966 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

authorizes payment of travel or other

expenses of the individual;

(3) An individual, other than an

independent contractor or individual

employed by an independent contractor,

employed on the Menominee Indian

Reservation in Wisconsin in operations

conducted under a statute relating to

tribal timber and logging operations on

that reservation;

(4) An individual appointed to a

position on the office staff of a former

President; or

(5) An individual selected and serving

as a Federal petit or grand juror.

(s) Department (DOL) means the

United States Department of Labor.

(t) Department of Energy (DOE)

includes the predecessor agencies of the

DOE, including the Manhattan

Engineering District.

(u) Department of Energy contractor

employee means any of the following:

(1) An individual who is or was in

residence at a DOE facility as a

researcher for one or more periods

aggregating at least 24 months.

(2) An individual who is or was

employed at a DOE facility by:

(i) An entity that contracted with the

DOE to provide management and

operating, management and integration,

or environmental remediation at the

facility; or

(ii) A contractor or subcontractor that

provided services, including

construction and maintenance, at the

facility.

(v) Department of Energy facility

means any building, structure, or

premise, including the grounds upon

which such building, structure, or

premise is located:

(1) In which operations are, or have

been, conducted by, or on behalf of, the

DOE (except for buildings, structures,

premises, grounds, or operations

covered by Executive Order 12344,

dated February 1, 1982, pertaining to

the Naval Nuclear Propulsion Program);

and

(2) With regard to which the DOE has

or had:

(i) A proprietary interest; or

(ii) Entered into a contract with an

entity to provide management and

operation, management and integration,

environmental remediation services,

construction, or maintenance services;

and

(3) Is designated by the Secretary of

Energy as an atomic weapons employer

for purposes of this program.

(w) Disability means, for purposes of

determining entitlement to payment

under EEOICPA sections 3628(a)(1),

having been determined by OWCP to

have or have had established chronic

beryllium disease, cancer, or chronic

silicosis.

(x) Eligible surviving beneficiary

means any individual who is entitled

under section 3628(e) of the Act to

receive a payment on behalf of a

deceased covered employee.

(y) Employee means either a current

or former employee.

(z) Occupational illness means a

covered beryllium illness, cancer

sustained in the performance of duty as

defined in § 30.210(b), specified cancer,

or chronic silicosis.

(aa) OWCP means the Office of

Workers’ Compensation Programs,

United States Department of Labor.

(bb) Physician includes surgeons,

podiatrists, dentists, clinical

psychologists, optometrists,

chiropractors, and osteopathic

practitioners within the scope of their

practice as defined by State law. The

term ‘‘physician’’ includes chiropractors

only to the extent that their

reimbursable services are limited to

treatment consisting of manual

manipulation of the spine to correct a

subluxation as demonstrated by x-ray to

exist.

(cc) Qualified physician means any

physician who has not been excluded

under the provisions of subpart H of this

part. Except as otherwise provided by

regulation, a qualified physician shall

be deemed to be designated or approved

by OWCP.

(dd) Specified cancer (as defined in

section 4(b) of the Radiation Exposure

Compensation Act Amendments of 2000

(42 U.S.C. 2210 note) and the Act)

means:

(1) Leukemia (other than chronic

lymphocytic leukemia) provided that

initial exposure occurred after the age of

20 and the onset of the disease was at

least 2 years after first exposure;

(2) Lung cancer (other than in situ

lung cancer that is discovered during or

after a post-mortem exam);

(3) The following diseases, provided

onset was at least 5 years after first

exposure:

(i) Multiple myeloma;

(ii) Lymphomas (other than Hodgkin’s

disease);

(4) Primary cancer of the:

(i) Thyroid;

(ii) Male or female breast;

(iii) Esophagus;

(iv) Stomach;

(v) Pharynx;

(vi) Small intestine;

(vii) Pancreas;

(viii) Bile ducts;

(ix) Gall bladder;

(x) Salivary gland;

(xi) Urinary bladder;

(xii) Brain;

(xiii) Colon;

(xiv) Ovary; or

(xv) Liver (except if cirrhosis or

hepatitis B is indicated); and

(5) Bone cancer.

(6) The specified diseases designated

in paragraphs (dd) (2), (3), and (4) of this

section mean the physiological

condition or conditions that are

recognized by the National Cancer

Institute under those names or

nomenclature, or under any previously

accepted or commonly used names or

nomenclature.

(ee) Survivor means:

(1) Subject to paragraph (ee)(2) of this

section, a widow or widower, child,

parent, brother, sister, grandparent and

grandchild of a deceased covered

employee.

(2) Those individuals listed in

paragraph (ee)(1) of this section do not

include:

(i) A child, a brother, a sister, or a

grandchild who, at the time of the

death, was married, or was 18 years of

age or older, unless incapable of selfsupport; or

(ii) A parent or grandparent who, at

the time of the death, was not

dependent on the deceased covered

employee.

(3) Notwithstanding paragraph

(ee)(2)(i) of this section, an unmarried

child, brother, sister, or grandchild is a

survivor if he/she was, at the time of the

death, a student as defined by section

8101 of Title 5, United States Code.

(ff) Time of injury means:

(1) In regard to a claim arising out of

exposure to beryllium or silica, the last

date on which a covered employee was

exposed to such substance in the

performance of duty in accordance with

sections 3623(a) or 3627(c) of the

EEOICPA; or

(2) In regard to a claim arising out of

exposure to radiation, the last date on

which a covered employee was exposed

to radiation in the performance of duty

in accordance with section 3623(b) of

the EEOICPA or, in the case of a

member of the Special Exposure Cohort,

the last date on which the member of

the Special Exposure Cohort was

employed at the Department of Energy

facility at which the member was

exposed to radiation.

(gg) Widow or widower means the

wife or husband living with or

dependent for support on the decedent

at the time of his or her death, or living

apart for reasonable cause or because of

his or her desertion.

(hh) Workday means a single

workshift whether or not it occurred on

more than one calendar day.

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28967

Information in Program Records

§ 30.10 Are all OWCP records relating to

claims filed under the EEOICPA considered

confidential?

All OWCP records relating to claims

for benefits under the EEOICPA are

considered confidential and may not be

released, inspected, copied or otherwise

disclosed except as provided in the

Freedom of Information Act and the

Privacy Act of 1974.

§ 30.11 Who maintains custody and

control of claim records?

All OWCP records relating to claims

for benefits filed under the EEOICPA are

covered by the Privacy Act system of

records entitled DOL/ESA–49 (Office of

Workers’ Compensation Programs,

Energy Employees Occupational Illness

Compensation Program Act File). This

system of records is maintained by and

under the control of OWCP, and, as

such, all records covered by DOL/ESA–

49 are official records of OWCP. The

protection, release, inspection and

copying of records covered by DOL/

ESA–49 shall be accomplished in

accordance with the rules, guidelines

and provisions of this part, as well as

those contained in 29 CFR parts 70 and

71, and with the notice of the system of

records and routine uses to be published

in the Federal Register. All questions

relating to access, disclosure, and/or

amendment of EEOICPA records

maintained by OWCP are to be resolved

in accordance with this section.

§ 30.12 What process is used by a person

who wants to obtain copies of or amend

EEOICPA claim records?

(a) A claimant seeking copies of his or

her official EEOICPA file should address

a request to the District Director of the

OWCP office having custody of the file.

(b) Any request to amend a record

covered by DOL/ESA–49 should be

directed to the district office having

custody of the official file.

(c) Any administrative appeal taken

from a denial issued by OWCP under

this section shall be filed with the

Solicitor of Labor in accordance with 29

CFR 71.7 and 71.9.

Rights and Penalties

§ 30.15 May EEOICPA benefits be

assigned or transferred?

No claim for EEOICPA benefits may

be assigned or transferred.

§ 30.16 What penalties may be imposed in

connection with a claim under the

EEOICPA?

(a) Other statutory provisions make it

a crime to file a false or fraudulent claim

or statement with the federal

government in connection with a claim

under the EEOICPA. Included among

these provisions is section 1001 of title

18, United States Code. Enforcement of

criminal provisions that may apply to

claims under the EEOICPA are within

the jurisdiction of the Department of

Justice.

(b) In addition, administrative

proceedings may be initiated under the

Program Fraud Civil Remedies Act of

1986 (PFCRA), 31 U.S.C. 3801–12, to

impose civil penalties and assessments

against persons or entities who make,

submit, or present, or cause to be made,

submitted or presented, false, fictitious

or fraudulent claims or written

statements to OWCP in connection with

a claim under the EEOICPA. The

Department of Labor’s regulations

implementing the PFRCA are found at

29 CFR part 22.

§ 30.17 Is a beneficiary who defrauds the

government in connection with a claim for

benefits still entitled to those benefits?

When a beneficiary either pleads

guilty to or is found guilty on either

federal or state criminal charges of

defrauding the federal government in

connection with a claim for benefits

under the EEOICPA or any other federal

or state workers’ compensation law, the

beneficiary’s entitlement to any further

benefits will terminate effective the date

either the guilty plea is accepted or a

verdict of guilty is returned after trial,

for any occupational disease for which

the time of injury was on or before the

date of such guilty plea or verdict. Any

subsequent change in or recurrence of

the beneficiary’s medical condition does

not affect termination of entitlement

under this section.

Subpart B—Filing Claims; Evidence

and Burden of Proof; Special

Procedures for Certain Cancer Claims

Claims for Occupational Illness—

Employee or Survivor’s Actions

§ 30.100 In general, how does an employee

file for benefits?

(a) To claim benefits under the

EEOICPA, an employee must file a

claim in writing on or after July 31,

2001. Form EE–1 should be used for this

purpose, but any written

communication that requests benefits

under the EEOICPA will be considered

a claim. It will, however, be necessary

for a claimant to submit a Form EE–1 for

OWCP to adjudicate the claim. Copies of

Form EE–1 may be obtained from

OWCP, from DOE, or from OWCP’s

home page on the Internet at

www.dol.gov/dol/esa/public/

owcp_org.htm. The employee must file

his or her claim with OWCP, or another

person may do so on the employee’s

behalf.

(b) The employee may withdraw his

or her claim by so requesting in writing

to OWCP at any time before OWCP

determines eligibility for benefits.

(c) A claim is considered to be ‘‘filed’’

on the date that the employee mails his

or her claim to OWCP, as determined by

postmark, or on the date that the claim

is received by OWCP or DOE, whichever

is the earliest determinable date, but in

no event earlier than July 31, 2001.

(1) Form EE–1 shall be sworn to by

the employee, or by the person filing the

claim on behalf of the employee.

(2) Except for a covered uranium

employee, the employee is responsible

for submitting, or arranging for the

submission of, medical evidence to

OWCP that establishes that he or she

sustained an occupational illness.

§ 30.101 In general, how is a survivor’s

claim filed?

(a) Any survivor of an employee who

sustained an occupational illness may

file a claim for compensation in writing

on or after July 31, 2001. Form EE–2

should be used for this purpose, but any

written communication that requests

benefits under the EEOICPA will be

considered a claim. It will, however, be

necessary for a claimant to submit a

Form EE–2 for OWCP to adjudicate the

claim. Copies of Form EE–2 may be

obtained from OWCP, from DOE, or

from OWCP’s home page on the Internet

at www.dol.gov/dol/esa/public/

owcp_org.htm. The claiming survivor

must file his or her claim with OWCP,

or another person may do so on the

survivor’s behalf. Although only one

survivor need file a claim under this

section to initiate the adjudication

process, OWCP will distribute any

monetary benefits paid among all

eligible surviving beneficiaries pursuant

to the terms of § 30.501.

(b) A survivor may withdraw his or

her claim by so requesting in writing to

OWCP at any time before OWCP

determines eligibility for benefits.

(c) A survivor must be alive to receive

any payment; there is no vested right to

such payment.

(d) A survivor’s claim is considered to

be ‘‘filed’’ on the date that the survivor

mails his or her claim to OWCP, as

determined by postmark, or the date

that the claim is received by OWCP or

DOE, whichever is the earliest

determinable date, but in no event

earlier than July 31, 2001.

(1) Form EE–2 shall be sworn to by

the survivor, or by the person filing the

claim on behalf of the survivor.

(2) Except for the survivor of a

covered uranium employee, the survivor

28968 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

is responsible for submitting, or

arranging for the submission of,

evidence to OWCP that establishes that

the employee upon whom the survivor’s

claim is based was eligible for such

benefits, including medical evidence

that establishes that the employee

sustained an occupational illness.

§ 30.102 How does a claimant make sure

that OWCP has the evidence necessary to

process the claim?

(a) Claim forms and certain required

submissions should be made on forms

prescribed by OWCP. Persons

submitting forms shall not modify these

forms or use substitute forms. DOE is

expected to maintain an adequate

supply of the basic forms needed for

filing claims under the EEOICPA.

Form No. Title

(1) EE–1 ...... Claim for Benefits Under Energy Employees Occupational Illness Compensation

Program Act.

(2) EE–2 ...... Claim for Survivor Benefits

Under Energy Employees

Occupational Illness Compensation Program Act.

(3) EE–3 ...... Employment History for Claim

Under Energy Employees

Occupational Illness Compensation Program Act.

(4) EE–4 ...... Employment History Affidavit

for Claim Under the Energy

Employees Occupational Illness Compensation Program Act.

(5) EE–5 ...... Department of Energy’s Response to Employment History for Claim Under the Energy Employees Occupational Illness Compensation

Program Act.

(6) EE–7 ...... Medical Requirements Under

the Energy Employees Occupational Illness Compensation Program Act

(EEOICPA).

(b) Copies of the forms listed in this

section are available for public

inspection at the Office of Workers’

Compensation Programs, Employment

Standards Administration, U.S.

Department of Labor, Washington, D.C.

20210. They may also be obtained from

OWCP district offices, from DOE, and

from OWCP’s home page on the Internet

at www.dol.gov/dol/esa/public/

owcp_org.htm.

Claims for Occupational Illness—

Actions of DOE

§ 30.105 What must DOE do after an

employee files a claim for an occupational

illness?

(a) DOE shall complete Form EE–5 as

soon as possible and transmit the

completed form to OWCP. On this form,

DOE shall certify that it concurs with

the employment information provided

by the employee, or that it disagrees

with such information, or that it can

neither concur nor disagree after making

a reasonable search of its records and

also making a reasonable effort to locate

pertinent records not already in its

possession.

(b) Upon request of a claimant, DOE

shall also assist such claimant in

completing Form EE–4 and transmit the

completed form to OWCP.

(c) DOE should not wait for the

employee to submit the necessary

supporting medical evidence before it

forwards any Form EE–1 (or other

document containing an employee’s

claim) it has received to OWCP.

§ 30.106 What should DOE do when an

employee with a claim for an occupational

illness dies?

(a) When possible, DOE shall furnish

a Form EE–2 to all survivors likely to be

entitled to compensation after the death

of an employee. DOE should also supply

information about completing and filing

the form.

(b) DOE shall complete Form EE–5 as

soon as possible and transmit the

completed form to OWCP. On this form,

DOE shall certify that it concurs with

the employment information provided

by the survivor, or that it disagrees with

such information, or that it can neither

concur nor disagree after making a

reasonable search of its records and also

making a reasonable effort to locate

pertinent records not already in its

possession.

(c) Upon request of a survivor, DOE

shall also assist such survivor in

completing Form EE–4 and transmit the

completed form to OWCP.

(d) DOE should not wait for the

claiming survivor to submit the

necessary supporting medical evidence

before it forwards any Form EE–2 (or

other document containing a survivor’s

claim) it has received to OWCP.

Evidence and Burden of Proof

§ 30.110 Who is entitled to compensation

under the Act?

(a) Compensation is payable to the

following covered employees, or their

survivors:

(1) A ‘‘covered beryllium employee’’

(as described § 30.205(a) who has been

diagnosed with a covered beryllium

illness (as defined in § 30.5(o)) and was

exposed to beryllium in the

performance of duty (in accordance

with § 30.206).

(2) A ‘‘covered employee with cancer’’

(as described in § 30.210).

(3) A ‘‘covered employee with chronic

silicosis’’ (as described in § 30.215).

(4) A ‘‘covered uranium employee’’

(as defined in § 30.5(q)).

(b) Any claim that does not meet all

of the criteria for at least one of these

categories, as set forth in these

regulations, must be denied.

(c) All claims for benefits under the

Act must comply with the claims

procedures and requirements set forth

in subpart B of this part before any

payment can be made from the Fund.

§ 30.111 What is the claimant’s

responsibility with respect to burden of

proof, production of documents,

presumptions, and affidavits?

(a) Except where otherwise provided

in the Act and these regulations, the

claimant bears the burden of proving by

a preponderance of the evidence the

existence of each and every criterion

necessary to establish eligibility under

any compensable claim category set

forth in § 30.110. Proof by a

preponderance of the evidence means

that it is more likely than not that the

proposition to be proved is true. Subject

to the exceptions expressly provided in

the Act and regulations, the claimant

also bears the burden of providing to the

OWCP all written medical

documentation, contemporaneous

records, or other records and documents

necessary to establish any and all

criteria for benefits set forth in these

regulations.

(b) In the event that the claim lacks

required information or supporting

documentation, DOL will notify the

employee, survivor, and/or DOE of the

deficiencies and provide an opportunity

for correction of the deficiencies.

(c) Written affidavits or declarations,

subject to penalty for perjury, by the

employee, survivor, or any other person,

will be accepted as evidence of

employment history and survivor

relationship for purposes of establishing

eligibility and may be relied on in

determining whether a claim meets the

requirements of the Act for benefits if,

and only if, such person attests that due

diligence was used to obtain records in

support of the claim, but that no records

exist.

(d) A claimant will not be entitled to

any presumption otherwise provided for

in these regulations if substantial

evidence exists that rebuts the existence

of the fact that is the subject of the

presumption. Substantial evidence

means such relevant evidence as a

reasonable mind might accept as

adequate to support a conclusion. When

such evidence exists, the covered

employee or his or her survivor shall be

notified and afforded the opportunity to

submit additional written medical

documentation or records.

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28969

§ 30.112 What are the requirements for

written medical documentation,

contemporaneous records, and other

records or documents?

(a) All written medical

documentation, contemporaneous

records, and other records or documents

submitted by an employee or his or her

survivor to prove any criteria provided

for in these regulations must be

originals, a certified copy or a clear

readable copy of the document or

record.

(b) To establish eligibility, the

employee or his or her survivor may be

required to provide, where appropriate,

additional contemporaneous records to

the extent they exist or an authorization

to release additional contemporaneous

records or a statement by the

custodian(s) of the record(s) certifying

that the requested record(s) no longer

exist. Nothing in the regulation in this

section shall be construed to limit

OWCP’s ability to require additional

documentation.

Special Procedures for Certain Cancer

Claims

§ 30.115 What does OWCP do once it

determines that a covered employee who is

not a member of the Special Exposure

Cohort (or a survivor of such an employee)

has established that he or she contracted

cancer under § 30.211(b)?

(a) OWCP will forward any such

claimant’s application package

(including, but not limited to, Forms

EE–1, EE–2, EE–3, EE–4 and EE–5, as

appropriate) to HHS for dose

reconstruction. At that point in time,

adjudication of the claim by OWCP is

suspended.

(1) This package will include OWCP’s

initial findings in regard to the covered

employee’s diagnosis and date of

diagnosis, as well as any employment

history compiled by OWCP (including

information such as dates and locations

worked, and job titles). The package,

however, does not constitute a

recommended or final decision by

OWCP on the claim.

(2) HHS will then reconstruct the

covered employee’s radiation dose,

following such further development of

the employment history as it may deem

necessary, and notify the claimant of its

findings. At that same time, HHS will

also inform OWCP that it has so notified

the claimant and provide OWCP with a

copy of the information provided to the

claimant.

(b) In special circumstances, i.e.,

where there is clear evidence showing a

sufficient level of radiation exposure to

qualify a claimant for benefits, OWCP

may waive the above procedure for dose

reconstruction.

(c) Following its receipt of the

reconstructed dose from HHS, OWCP

will consider whether the claimant has

met the eligibility criteria set forth in

subpart C.

Subpart C—Eligibility Criteria

General Provisions

§ 30.200 What is the scope of this

subpart?

The regulations in this subpart

describe the criteria for eligibility for

benefits for claims relating to covered

beryllium illness under sections 3621,

3623, 3628 and 3629 of the Act; for

claims relating to employees with

cancer under sections 3621, 3623, 3626

and 3629 of the Act; for claims relating

to chronic silicosis disease under

sections 3621, 3627, 3628 and 3629; and

for claims relating to covered uranium

employees under sections 3629 and

3630. This subpart describes the type

and extent of evidence that will be

accepted as evidence of the various

criteria for eligibility for compensation

for each of these illnesses.

Eligibility Criteria for Claims Relating

to Covered Beryllium Illness

§ 30.205 What are the criteria for eligibility

for benefits relating to covered beryllium

illness?

To establish eligibility for benefits

under this section, the claimant must

establish the criteria set forth in

pargraphs (a) and (b) of this section:

(a) The employee is a covered

beryllium employee by establishing:

(1) The employee is a ‘‘current or

former employee as defined in 5 U.S.C.

8101(1)’’ (see § 30.5(r) of this subpart)

who may have been exposed to

beryllium at a DOE facility or at a

facility owned, operated, or occupied by

a beryllium vendor; or

(2) The employee is a current or

former employee of:

(i) Any entity that contracted with the

DOE to provide management and

operation, management and integration,

or environmental remediation of a DOE

facility; or

(ii) Any contractor or subcontractor

that provided services, including

construction and maintenance, at such a

facility; or

(iii) A beryllium vendor, or of a

contractor or subcontractor of a

beryllium vendor, during a period when

the vendor was engaged in activities

related to the production or processing

of beryllium for sale to, or use by, the

DOE; and

(3) The employee was exposed to

beryllium in the performance of duty by

establishing that he or she was:

(i) Employed at a DOE facility (as

defined in § 30.5(o) of this subpart); or

(ii) Present at a DOE facility, or a

facility owned and operated by a

beryllium vendor, because of his or her

employment by the United States, a

beryllium vendor, or a contractor or

subcontractor of the DOE; during a

period when beryllium dust, particles,

or vapor may have been present at such

a facility.

(b) The employee has one of the

following:

(1) Beryllium sensitivity as

established by an abnormal beryllium

LPT performed on either blood or lung

lavage cells.

(2) Established chronic beryllium

disease.

(3) Any injury, illness, impairment, or

disability sustained as a consequence of

the conditions specified in paragraphs

(b), (1) and (2) of this section.

§ 30.206 How does a claimant prove that

the claimant was a ‘‘covered beryllium

employee’’ exposed to beryllium dust,

particles or vapor in the performance of

duty?

(a) Proof of employment at or physical

presence at a DOE facility, or a facility

owned and operated by a beryllium

vendor, because of employment by the

United States, a beryllium vendor, or a

contractor or subcontractor of the DOE

during a period when beryllium dust,

particles, or vapor may have been

present at such a facility, may be made

by the submission of any trustworthy

contemporaneous records that, on their

face or in conjunction with other such

records, establish that the employee was

employed or present at a covered

facility and the time period of such

employment or presence.

(b) Contemporaneous records from the

following sources may be considered as

evidence for purposes of establishing

employment or presence at a covered

facility:

(1) Records or documents created by

any federal government agency

(including verified information

submitted for security clearance), any

tribal government, or any state, county,

city or local government office, agency,

department, board or other entity, or

other public agency or office.

(2) Records or documents created by

any vendor, processor, or producer of

beryllium or related products

designated as a beryllium vendor by the

DOE in accordance with section 3622 of

the Act.

(3) Records or documents created by

any regularly conducted business

activity or entity that acted as a

contractor or subcontractor to the DOE.

28970 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

§ 30.207 How does a claimant prove

diagnosis of a covered beryllium disease?

(a) Written medical documentation is

required in all cases to prove that the

employee developed a covered

beryllium illness. Proof that the

employee developed a covered

beryllium illness must be made by using

the procedures outlined in paragraphs

(b), (c), (d), or (e) of this section.

(b) Beryllium sensitivity or

sensitization is established with an

abnormal LPT performed on either

blood or lung lavage cells.

(c) Chronic beryllium disease is

established in the following manner:

(1) For diagnoses on or after January

1, 1993, beryllium sensitivity (as

established in accordance with

paragraph (b) of this section), together

with lung pathology consistent with

chronic beryllium disease, including the

following:

(i) A lung biopsy showing granulomas

or a lymphocytic process consistent

with chronic beryllium disease;

(ii) A computerized axial tomography

scan showing changes consistent with

chronic beryllium disease; or

(iii) Pulmonary function or exercise

testing showing pulmonary deficits

consistent with chronic beryllium

disease.

(2) For diagnoses before January 1,

1993, the presence of the following:

(i) Occupational or environmental

history, or epidemiologic evidence of

beryllium exposure; and

(ii) Any three of the following criteria:

(A) Characteristic chest radiographic

(or computed tomography (CT))

abnormalities.

(B) Restrictive or obstructive lung

physiology testing or diffusing lung

capacity defect.

(C) Lung pathology consistent with

chronic beryllium disease.

(D) Clinical course consistent with

chronic respiratory disorder.

(E) Immunologic tests showing

beryllium sensitivity (skin patch test or

beryllium blood test preferred).

(d) An injury, illness, impairment or

disability sustained as a consequence of

beryllium sensitivity or established

chronic beryllium disease must be

established with a fully rationalized

medical report by a physician that

shows the relationship between the

injury, illness, impairment or disability

and the beryllium sensitivity or

established chronic beryllium disease.

Neither the fact that the injury, illness,

impairment or disability manifests itself

after a diagnosis of beryllium sensitivity

or established chronic beryllium

disease, nor the belief of the claimant

that the injury, illness, impairment or

disability was caused by the beryllium

sensitivity or established chronic

beryllium disease is sufficient in itself

to prove a causal relationship.

(e) The Secretary of Health and

Human Services may, from time to time,

and in consultation with the DOE,

specify additional means of establishing

the existence of a covered beryllium

illness.

Eligibility Criteria for Claims Relating

to Cancer

§ 30.210 What are the criteria for eligibility

for benefits relating to cancer?

To establish eligibility for benefits for

cancer, an employee or his or her

survivor must show that:

(a) The employee has been diagnosed

with one of the forms of cancer

specified in section 4(b)(2) of the

Radiation Exposure Compensation Act

(42 U.S.C. 2210 note) and set forth in

§ 30.5(dd) of this subpart; and

(1) Is a member of the Special

Exposure Cohort (as described in

§ 30.213(a) of this subpart) who, as a

DOE employee or DOE contractor

employee, contracted the specified

cancer after beginning employment at a

DOE facility; or

(2) Is a member of the Special

Exposure Cohort (as described in

§ 30.213(a) of this subpart) who, as an

atomic weapons employee, contracted

the specified cancer after beginning

employment at an atomic weapons

employer facility (as defined in

§ 30.5(e)); or

(b) The employee has been diagnosed

with cancer; and

(1) Is/was a DOE employee who

contracted that cancer after beginning

employment at a DOE facility; or

(2) Is/was a DOE contractor employee

who contracted that cancer after

beginning employment at a DOE facility;

or

(3) Is/was an atomic weapons

employee who contracted that cancer

after beginning employment at an

atomic weapons employer facility; and

(4) That the cancer was at least as

likely as not related to the employment

at the DOE facility or atomic weapons

employer facility; or

(c) The employee has been diagnosed

with an illness or disease that arose as

a consequence of the accepted cancer.

§ 30.211 How does a claimant establish

that the employee has or had contracted

cancer?

A claimant establishes that the

employee has or had contracted cancer

with medical evidence that sets forth

the diagnosis of cancer and the date on

which that diagnosis was made.

§ 30.212 How does a claimant establish

that the cancer was at least as likely as not

related to the employment at the DOE

facility or the atomic weapons employer

facility?

HHS, with the advice of the Advisory

Board on Radiation and Worker Health,

will issue guidelines for making the

determination whether cancer was at

least as likely as not related to the

employment at the DOE facility or the

atomic weapons employer facility.

Claimants should consult those

guidelines for information regarding the

type of evidence that will be considered

by DOL, in addition to the employee’s

radiation dose reconstruction that will

be provided by HHS, in making this

determination.

§ 30.213 How does a claimant establish

that the employee is a member of the

Special Exposure Cohort?

(a) For purposes of establishing

eligibility as a member of the Special

Exposure Cohort (SEC) under § 30.210,

the employee must have been a DOE

employee, DOE contractor employee, or

an atomic weapons employee who

meets any of the following

requirements:

(1) The employee was so employed

for a number of workdays aggregating at

least 250 workdays before February 1,

1992, at a gaseous diffusion plant

located in Paducah, Kentucky;

Portsmouth, Ohio; or Oak Ridge,

Tennessee; and during such

employment:

(i) Was monitored through the use of

dosimetry badges for exposure at the

plant of the external parts of the

employee’s body to radiation; or

(ii) Worked in a job that had

exposures comparable to a job that is or

was monitored through the use of

dosimetry badges.

(2) The employee was so employed

before January 7, 1974, by DOE or a DOE

contractor or subcontractor on Amchitka

Island, Alaska, and was exposed to

ionizing radiation in the performance of

duty related to the Long Shot, Milrow,

or Cannikin underground nuclear tests.

(3) The employee is a member of a

group or class of employees

subsequently designated as additional

members of the SEC by HHS.

(b) For purposes of satisfying the 250

workday requirement of paragraph (a)(1)

of this section, the claimant may

aggregate the days of service at more

than one gaseous diffusion plant.

(c) Proof of employment by the DOE

or a DOE contractor, or atomic weapons

employer for the requisite time periods

set forth in paragraph (a) of this section,

may be made by the submission of any

trustworthy contemporaneous records

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28971

that, on their face or in conjunction with

other such records, establish that the

employee was so employed and the time

period(s) of such employment.

(d) Contemporaneous records from

the following sources may be

considered as evidence for purposes of

establishing employment or presence at

a covered facility:

(1) Records or documents created by

any federal government agency

(including verified information

submitted for security clearance), any

tribal government, or any state, county,

city or local government office, agency,

department, board or other entity, or

other public agency or office.

(2) Records or documents created as a

byproduct of any regularly conducted

business activity or by an entity that

acted as a contractor or subcontractor to

the DOE.

§ 30.214 How does a claimant establish

that the employee has been diagnosed with

cancer or has sustained a consequential

injury, illness or disease?

(a) Evidence that the employee

contracted a specified cancer (in the

case of SEC members) or other cancer

should include a written medical

document that contains an explicit

statement of diagnosis and the date on

which that diagnosis was first made.

(b) An injury, illness, impairment or

disability sustained as a consequence of

a diagnosed cancer covered by the

provisions of § 30.210(a) and (b) must be

established with a fully rationalized

medical report by a physician that

shows the relationship between the

injury, illness, impairment or disability

and the covered cancer. Neither the fact

that the injury, illness, impairment or

disability manifests itself after a

diagnosis of a covered cancer, nor the

belief of the claimant that the injury,

illness, impairment or disability was

caused by the covered cancer is

sufficient in itself to prove a causal

relationship.

Eligibility Criteria for Chronic Silicosis

§ 30.215 What are the criteria for eligibility

for benefits relating to chronic silicosis?

To establish eligibility for benefits for

chronic silicosis, a claimant must show

that the employee was a covered

employee with chronic silicosis by

establishing that:

(a) The employee is a DOE employee,

or a DOE contractor employee, who was

present for a number of work days

aggregating at least 250 work days

during the mining of tunnels at a DOE

facility (as defined in § 30.5(v)) located

in Nevada or Alaska for tests or

experiments related to an atomic

weapon; and

(b) Has been diagnosed with chronic

silicosis (as defined in § 30.5(j)).

§ 30.216 How does a claimant prove

exposure to silica in the performance of

duty?

(a) Proof of the employee’s

employment and presence for the

requisite days during the mining of

tunnels at a DOE facility located in

Nevada or Alaska for tests of

experiments related to an atomic

weapon may be by the submission of

any trustworthy contemporaneous

records that, on their face or in

conjunction with other such records,

establish that the employee was so

employed and present at these sites and

the time period(s) of such employment

and presence.

(b) Contemporaneous records from the

following sources may be considered as

evidence for purposes of establishing

proof of employment or presence at a

covered facility:

(1) Records or documents created by

any federal government agency

(including verified information

submitted for security clearance), any

tribal government, or any state, county,

city or local government office, agency,

department, board or other entity, or

other public agency or office.

(2) Records or documents created as a

byproduct of any regularly conducted

business activity or by an entity that

acted as a contractor or subcontractor to

the DOE.

(c) For purposes of satisfying the 250

workday requirement of § 30.215(a), the

claimant may aggregate the days of

service at more than one qualifying site.

§ 30.217 How does a claimant prove the

covered employee’s diagnosis of chronic

silicosis?

A written diagnosis of the employee’s

chronic silicosis (as defined in § 30.5(j))

shall be made by a medical doctor and

accompanied by:

(a) A chest radiograph, interpreted by

an individual certified by the National

Institute for Occupational Safety and

Health as a B reader, classifying the

existence of pneumoconioses of

category 1/1 or higher;

(b) Results from a computer assisted

tomograph or other imaging technique

that are consistent with silicosis; or

(c) Lung biopsy findings consistent

with silicosis.

Eligibility of Certain Uranium

Employees

§ 30.220 What are the criteria for eligibility

for benefits for certain uranium employees?

(a) In order to be eligible for

compensation under this section, the

Attorney General must have determined

that a claimant is a covered uranium

employee or surviving eligible

beneficiary of such employee who is

entitled to payment of $100,000 as

compensation due under section 5 of

the Radiation Exposure Compensation

Act (42 U.S.C. 2210 note) for a claim

made under that Act.

(b) There is no requirement that the

claimant or surviving eligible

beneficiary has actually received

payment pursuant to the RECA.

Subpart D—Adjudicatory Process

§ 30.300 What process will OWCP use to

decide claims and to provide for

administrative review of those decisions?

OWCP district offices will issue

recommended decisions with respect to

claims. All recommended decisions,

including those granting and denying

benefits under the Act, will be

forwarded to the Final Adjudication

Branch (FAB). Claimants will be given

an opportunity to object to all or part of

the recommended decision. The FAB

will consider any objections filed by a

claimant and conduct a hearing, if

requested to do so by the claimant,

before issuing a final decision on the

claim.

Recommended Decisions on Claims

§ 30.305 How does OWCP determine

entitlement to EEOICPA compensation?

(a) In reaching a recommended

decision with respect to EEOICPA

compensation, OWCP considers the

claim presented by the claimant, the

factual and medical evidence of record,

the dose reconstruction report

calculated by HHS (if any), the report

submitted by DOE and the results of

such investigation as OWCP may deem

necessary.

(b) The OWCP claims staff applies the

law, the regulations and its procedures

to the facts as reported or obtained upon

investigation.

§ 30.306 What does the recommended

decision contain?

The recommended decision shall

contain findings of fact and conclusions

of law. The recommended decision may

accept or reject the claim in its entirety,

or it may accept or reject a portion of the

claim presented. It is accompanied by

information about the claimant’s right to

file specific objections with, and request

a hearing before, the FAB.

§ 30.307 To whom is the recommended

decision sent?

A copy of the recommended decision

will be mailed to the claimant’s last

known address. However, if the

claimant has a designated representative

before OWCP, the copy of the

28972 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

recommended decision will be mailed

to the representative. Notification to

either the claimant or the representative

will be considered notification to both

parties.

Hearings and Final Decisions on Claims

§ 30.310 How does a claimant object to a

recommended decision on a claim?

(a) At the same time it issues a

recommended decision on a claim, the

OWCP district office will forward the

record of such claim to the FAB. Any

new evidence submitted to the district

office following the issuance of the

recommended decision will also be

forwarded to the FAB for consideration.

(b) In a notice accompanying the

recommended decision, the district

office will request that the claimant

specify, within 60 days from the date of

issuance of such decision, whether he or

she objects to any of the findings of fact

and/or conclusions of law contained in

the recommended decision, and

whether a hearing is desired. Any

objection, as well as any related request

for a hearing, should be sent to the FAB

at the address indicated in the notice.

(1) All objections to the recommended

decision must be identified as

specifically as possible by the date

described above in paragraph (b) of this

section, unless that date is extended by

the FAB, or the FAB reviewer permits

further objections at the hearing.

(2) Any objection not presented to the

FAB within the time period described in

this section, including any objection to

HHS’s reconstruction of the radiation

dose to which the employee was

exposed, whether or not the issue was

previously presented to the district

office, is deemed waived for all

purposes.

§ 30.311 What action will the FAB take if

the claimant does not file objections to the

recommended decision?

(a) If no objections to specific findings

of fact or conclusions of law are filed

within the period of time allotted in

§ 30.310(b), the FAB will issue a

decision affirming the recommended

decision as provided in § 30.316, even if

the claimant requests a hearing.

(b) If the recommended decision

accepts all or part of a claim for

compensation, the FAB may issue a

decision at any time after receiving

written notice from the claimant that he

or she waives any objection to all or part

of the recommended decision.

§ 30.312 What action will the FAB take if

the claimant files objections but does not

request a hearing?

If the claimant specifies objections to

the recommended decision within the

appropriate time period but does not

request a hearing, the FAB will consider

such objections by means of a review of

the written record. If the claimant’s

objections only refer to part of the

recommended decision, the FAB may

issue a decision affirming the remaining

part of the recommended decision

without first reviewing the written

record (see § 30.316).

§ 30.313 How is a review of the written

record conducted?

(a) The FAB reviewer will review the

record forwarded by the district office

and any additional evidence and/or

argument submitted by the claimant.

The reviewer may also conduct

whatever investigation is deemed

necessary.

(b) The claimant should submit, with

his or her statement specifying the

findings of fact and/or conclusions of

law contained in the district office’s

recommended decision to which he or

she objects, all evidence or argument

that he or she wants to present to the

reviewer. However, evidence or

argument may be submitted at any time

up to the date specified by the reviewer

for the submission of such evidence or

argument.

§ 30.314 How is a hearing conducted?

(a) The FAB reviewer retains

complete discretion to set the time and

place of the hearing, including the

amount of time allotted for the hearing,

considering the issues to be resolved. At

the discretion of the reviewer, the

hearing may be conducted by telephone

or teleconference. In addition to the

evidence of record, the claimant may

submit new evidence to the reviewer.

(b) Unless otherwise directed in

writing by the claimant, the FAB

reviewer will mail a notice of the time

and place of the hearing to the claimant

and any representative at least 30 days

before the scheduled date. This notice

will also include a listing of the issues

to be addressed during the hearing. If

the claimant only objects to a part of the

recommended decision, the FAB

reviewer may issue a decision affirming

the remaining part of the recommended

decision without first holding a hearing

(see § 30.316).

(c) The hearing is an informal process,

and the reviewer is not bound by

common law or statutory rules of

evidence, or by technical or formal rules

of procedure. The reviewer may conduct

the hearing in such manner as to best

ascertain the rights of the claimant.

During the hearing process, the claimant

may state his or her arguments and

present new written evidence and/or

testimony in support of the claim.

(d) Testimony at hearings is recorded,

then transcribed and placed in the

record. Oral testimony shall be made

under oath.

(e) The FAB reviewer will furnish a

transcript of the hearing to the claimant,

who has 20 days from the date it is sent

to submit any comments to the

reviewer.

(f) The claimant will have 30 days

after the hearing is held to submit

additional evidence or argument, unless

the reviewer, in his or her sole

discretion, grants an extension. Only

one such extension may be granted.

(g) The reviewer determines the

conduct of the hearing and may

terminate the hearing at any time he or

she determines that all relevant

evidence has been obtained, or because

of misbehavior on the part of the

claimant and/or representative at or

near the place of the oral presentation.

§ 30.315 May a claimant postpone a

hearing?

(a) The FAB will entertain any

reasonable request for scheduling the

hearing, but such requests should be

made at the time of the hearing request

described in § 30.310(b). Scheduling is

at the sole discretion of the FAB

reviewer, and is not reviewable. Once

the hearing is scheduled and

appropriate written notice has been

mailed, the hearing cannot be

postponed at the claimant’s request for

any reason except those stated in

paragraph (b) of this section, unless the

FAB reviewer can reschedule the

hearing on the same docket (that is,

during the same hearing trip). When the

request to postpone a scheduled hearing

does not meet the test of paragraph (b)

of this section and cannot be

accommodated on the docket, no further

opportunity for a hearing will be

provided. Instead, the claimant’s

specified objections will be considered

by means of a review of the written

record. In the alternative, a

teleconference may be substituted for

the hearing at the discretion of the

reviewer.

(b) Where the claimant is hospitalized

for a reason which is not elective, or

where the death of the claimant’s

parent, spouse, or child prevents

attendance at the hearing, a

postponement may be granted upon

proper documentation.

(c) At any time after requesting a

hearing, the claimant can request a

change to a review of the written record

by making a written request to the FAB.

Once such a change is made, no further

opportunity for a hearing will be

provided.

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28973

§ 30.316 How does the FAB issue a final

decision on a claim?

(a) If the 60-day period specified in

the notice accompanying the

recommended decision (plus any

extension of such period granted by the

FAB) for filing objections to the

recommended decision expires and no

objections have been filed, or if the

claimant waives any objections to all or

part of the recommended decision, the

FAB will issue a decision affirming the

recommended decision, either in whole

or in part (see §§ 30.311, 30.312 and

30.314(a)).

(b) If the claimant files objections to

all or part of the recommended decision,

the FAB reviewer will issue a decision

on the claim after either the hearing or

the review of the written record, and

after completing such further

development of the case as he or she

may deem necessary.

(c) Any recommended decision (or

part thereof) that is pending either a

hearing or a review of the written record

for more than one year from the date the

FAB receives the record from the

district office shall be considered

affirmed by the FAB on the one-year

anniversary of such date.

(d) The decision of the FAB, whether

issued pursuant to paragraph (a), (b) or

(c) of this section, shall be final upon

the expiration of 30 days from the date

of issuance of such decision, unless a

timely request for reconsideration under

§ 30.319 has been filed.

(e) A copy of the decision of the FAB

will be mailed to the claimant’s last

known address. However, if the

claimant has a designated representative

before OWCP, the copy of the decision

will be mailed to the representative.

Notification to either the claimant or the

representative will be considered

notification to both parties.

§ 30.317 Can the FAB request a further

response from the claimant or remand a

claim to the district office?

At any time before the issuance of its

decision, the FAB may request that the

claimant submit additional evidence or

argument, or remand the claim to the

district office for further development

without issuing a decision, whether or

not requested to do so by the claimant.

§ 30.318 Can the FAB review a

determination by HHS with respect to an

employee’s dose reconstruction?

(a) The FAB will review the factual

determinations upon which HHS based

its decision. Factual findings that do not

appear to be supported by substantial

evidence will be remanded to the

district office for referral to HHS for

further consideration.

(b) The methodology used by HHS in

arriving at reasonable estimates of the

radiation doses received by an

employee, established by regulations

issued by HHS, is binding on the FAB.

The FAB reviewer may determine,

however, that arguments concerning the

application of that methodology should

be considered by HHS and may remand

the case to the district office for referral

to HHS for such consideration.

§ 30.319 May a claimant request

reconsideration of a decision of the FAB?

(a) A claimant may request

reconsideration of a decision of the FAB

by making a written request to the FAB

within 30 days from the date of issuance

of such decision.

(b) If the FAB grants the request for

reconsideration, it will review the

district office’s recommended decision

again and issue a new decision on the

claim. A hearing is not available as part

of the reconsideration process. If the

FAB denies the request for

reconsideration, the decision in

question shall be final on the date the

request is denied.

(c) A claimant may not seek judicial

review of a decision on his or her claim

under the Act until all administrative

review opportunities have been

exhausted and OWCP’s decision on the

claim is final pursuant to § 30.316(d).

Modification

§ 30.320 Can a final decision be modified

once the period for requesting

reconsideration has expired?

A final decision issued by the FAB

may be modified at any time on OWCP’s

own motion. A final decision may also

be modified on the motion of the

claimant within one year of the date on

which such decision became final,

provided that the claimant can establish

a mistake of fact in the decision, or

changed conditions. Modification may

be granted without regard to whether

new evidence or information is

presented or obtained. If OWCP

determines that modification is

warranted, it may issue a new

recommended decision modifying the

prior final decision.

(a) The decision whether or not to

modify a final decision under this

section is solely within the discretion of

OWCP.

(b) Where OWCP grants modification

of a final decision, any resulting

recommended decision is subject to the

adjudicatory process described in this

subpart. However, the scope of review at

the FAB will be limited to review of the

merits of the recommended decision.

OWCP’s discretionary determination to

modify the prior final decision is not

reviewable.

(c) Nothing in this section shall

prevent a claimant from filing another

claim under the EEOICPA for

compensation for an occupational

illness or a consequential injury for

which he or she has not previously

sought compensation under the

EEOICPA. In any event, however, no

claimant may receive more than one

award of monetary compensation under

sections 3628(a)(1) or 3630(a) of the

EEOICPA.

Subpart E—Medical and Related

Benefits

Medical Treatment and Related Issues

§ 30.400 What are the basic rules for

obtaining medical care?

(a) The covered employee who fits

into at least one of the compensable

claim categories is entitled to receive all

medical services, appliances or supplies

that a qualified physician prescribes or

recommends and that OWCP considers

necessary to treat his or her

occupational illness, retroactive to the

date the employee filed a claim for

benefits under the EEOICPA (see

§ 30.100(c)). The employee need not be

disabled to receive such treatment, and

OWCP will pay for such treatment even

if the covered employee dies before the

claim is accepted. If there is any doubt

as to whether a specific service,

appliance or supply is necessary to treat

the occupational illness, the employee

should consult OWCP prior to obtaining

it.

(b) Any qualified physician or

qualified hospital may provide such

services, appliances and supplies. A

qualified provider of medical support

services may also furnish appropriate

services, appliances, and supplies.

OWCP may apply a test of costeffectiveness to appliances and

supplies. With respect to prescribed

medications, OWCP may require the use

of generic equivalents where they are

available.

§ 30.401 What are the special rules for the

services of chiropractors?

(a) The services of chiropractors that

may be reimbursed by OWCP are

limited to treatment to correct a spinal

subluxation. The costs of physical and

related laboratory tests performed by or

required by a chiropractor to diagnose

such a subluxation are also payable.

(b) A diagnosis of spinal subluxation

as demonstrated by x-ray to exist must

appear in the chiropractor’s report

before OWCP can consider payment of

a chiropractor’s bill.

28974 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

(c) A chiropractor may interpret his or

her x-rays to the same extent as any

other physician. To be given any weight,

the medical report must state that x-rays

support the finding of spinal

subluxation. OWCP will not necessarily

require submission of the x-ray, or a

report of the x-ray, but the report must

be available for submission on request.

(d) A chiropractor may also provide

services in the nature of physical

therapy under the direction of a

qualified physician.

§ 30.402 What are the special rules for the

services of clinical psychologists?

A clinical psychologist may serve as

a physician within the scope of his or

her practice as defined by state law.

Therefore, a clinical psychologist may

not serve as a physician for conditions

that include a physical component

unless the applicable state law allows

clinical psychologists to treat physical

conditions. A clinical psychologist may

also perform testing, evaluation, and

other services under the direction of a

qualified physician.

§ 30.403 Will OWCP pay for the services of

an attendant?

OWCP will authorize payment for

personal care services under section

3629 of the EEOICPA, whether or not

such care includes medical services, so

long as the personal care services have

been determined to be medically

necessary and are provided by a home

health aide, licensed practical nurse, or

similarly trained individual.

§ 30.404 Will OWCP pay for transportation

to obtain medical treatment?

The employee is entitled to

reimbursement of reasonable and

necessary expenses, including

transportation needed to obtain

authorized medical services, appliances

or supplies. To determine what is a

reasonable distance to travel, OWCP

will consider the availability of services,

the employee’s condition, and the

means of transportation. Generally, 25

miles from the work site or the

employee’s home is considered a

reasonable distance to travel. The

standard form designated for federal

employees to claim travel expenses

should be used to seek reimbursement

under this section.

§ 30.405 After selecting a treating

physician, may an employee choose to be

treated by another physician instead?

(a) OWCP will provide the employee

with an opportunity to designate a

treating physician when it accepts the

claim. When the physician originally

selected to provide treatment for an

occupational illness refers the employee

to a specialist for further medical care,

the employee need not consult OWCP

for approval. In all other instances,

however, the employee must submit a

written request to OWCP with his or her

reasons for desiring a change of

physician.

(b) OWCP will approve the request if

it determines that the reasons submitted

are sufficient. Requests that are often

approved include those for transfer of

care from a general practitioner to a

physician who specializes in treating

occupational illnesses covered by the

EEOICPA, or the need for a new

physician when an employee has

moved.

§ 30.406 Are there any exceptions to these

procedures for obtaining medical care?

In cases involving emergencies or

unusual circumstances, OWCP may

authorize treatment in a manner other

than as stated in this subpart.

Directed Medical Examinations

§ 30.410 Can OWCP require an employee

to be examined by another physician?

OWCP sometimes needs a second

opinion from a medical specialist. The

employee must submit to examination

by a qualified physician as often and at

such times and places as OWCP

considers reasonably necessary. The

employee may have a qualified

physician, paid by him or her, present

at such examination. However, the

employee is not entitled to have anyone

else present at the examination unless

OWCP decides that exceptional

circumstances exist. For example, where

a hearing-impaired employee needs an

interpreter, the presence of an

interpreter would be allowed. Also,

OWCP may send a case file for second

opinion review where actual

examination is not needed, or where the

employee is deceased.

§ 30.411 What happens if the opinion of

the physician selected by OWCP differs

from the opinion of the physician selected

by the employee?

(a) If one medical opinion holds more

probative value, OWCP will base its

determination of entitlement on that

medical conclusion. A difference in

medical opinion sufficient to be

considered a conflict occurs when two

reports of virtually equal weight and

rationale reach opposing conclusions.

(b) If a conflict exists between the

medical opinion of the employee’s

physician and the medical opinion of

either a second opinion physician or an

OWCP medical adviser or consultant,

OWCP shall appoint a third physician to

make an examination. This is called a

referee examination. OWCP will select a

physician who is qualified in the

appropriate specialty and who has had

no prior connection with the case. The

employee is not entitled to have anyone

present at the examination unless

OWCP decides that exceptional

circumstances exist. For example, where

a hearing-impaired employee needs an

interpreter, the presence of an

interpreter would be allowed. Also, a

case file may be sent for referee medical

review where there is no need for an

actual examination, or where the

employee is deceased.

§ 30.412 Who pays for second opinion and

referee examinations?

OWCP will pay second opinion and

referee medical specialists directly.

OWCP will reimburse the employee all

necessary and reasonable expenses

incident to such an examination,

including transportation costs and

actual wages lost for the time needed to

submit to an examination required by

OWCP.

Medical Reports

§ 30.415 What are the requirements for

medical reports?

In all cases reported to OWCP, a

medical report from the attending

physician is required. This report

should include:

(a) Dates of examination and

treatment;

(b) History given by the employee;

(c) Physical findings;

(d) Results of diagnostic tests;

(e) Diagnosis;

(f) Course of treatment;

(g) A description of any other

conditions found due to the claimed

occupational illness;

(h) The treatment given or

recommended for the claimed

occupational illness; and

(i) All other material findings.

§ 30.416 How and when should the

medical report be submitted?

(a) The initial medical report (and any

subsequent reports) should be made in

narrative form on the physician’s

letterhead stationery. The physician

should use the EE–7 as a guide for the

preparation of his or her initial medical

report. The report should bear the

physician’s signature or signature

stamp. OWCP may require an original

signature on the report.

(b) The report shall be submitted

directly to OWCP as soon as possible

after medical examination or treatment

is received, either by the employee or

the physician.

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28975

§ 30.417 What additional medical

information may OWCP require to support

continuing payment of benefits?

In all cases requiring hospital

treatment or prolonged care, OWCP will

request detailed narrative reports from

the attending physician at periodic

intervals. The physician will be asked to

describe continuing medical treatment

for the occupational illness accepted by

OWCP, a prognosis, and the physician’s

opinion as to the continuing causal

relationship between the need for

additional treatment and the covered

occupational illness.

Medical Bills

§ 30.420 How are medical bills submitted?

Usually, medical providers submit

bills directly for processing. The rules

for submitting and processing bills are

stated in subpart H of this part. An

employee claiming reimbursement of

medical expenses should submit an

itemized bill as described in § 30.702.

§ 30.421 What are the time frames for

submitting bills?

To be considered for payment, bills

must be submitted by the end of the

calendar year after the year when the

expense was incurred, or by the end of

the calendar year after the year when

OWCP first accepted the claim as

compensable, whichever is later.

§ 30.422 If OWCP reimburses an employee

only partially for a medical expense, must

the provider refund the balance of the

amount paid to the employee?

(a) The OWCP fee schedule sets

maximum limits on the amounts

payable for many services. The

employee may be only partially

reimbursed for medical expenses

because the amount he or she paid to

the medical provider for a service

exceeds the maximum allowable charge

set by the OWCP fee schedule.

(b) If this happens, OWCP shall advise

the employee of the maximum

allowable charge for the service in

question and of his or her responsibility

to ask the provider to refund to the

employee, or credit to the employee’s

account, the amount he or she paid that

exceeds the maximum allowable charge.

The provider may request

reconsideration of the fee determination

as set forth in § 30.712.

(c) If the provider does not refund to

the employee or credit to his or her

account the amount of money paid in

excess of the charge that OWCP allows,

the employee should submit

documentation of the attempt to obtain

such refund or credit to OWCP. OWCP

may authorize reasonable

reimbursement to the employee after

reviewing the facts and circumstances of

the case.

Subpart F—Survivors; Payments and

Offsets; Overpayments Survivors

§ 30.500 What special statutory definitions

apply to survivors under the EEOICPA?

(a) EEOICPA provides that the classes

of individuals listed as eligible

‘‘survivors’’ in section 8133 of title 5,

United States Code, may also be eligible

survivors under the EEOICPA. Those

classes of individuals are specified in

§ 30.5(ee) of these regulations.

(b) EEOICPA adopts the order of

precedence and proportions to be

afforded to survivors as set forth in

section 8109 of title 5, United States

Code (see § 30.501).

§ 30.501 How will OWCP apply that order

of precedence to determine what survivors

are entitled to receive under the EEOICPA?

If OWCP determines that survivors are

entitled to receive compensation under

EEOICPA because a covered employee

who would otherwise have been

entitled to benefits is deceased, that

compensation will be disbursed as

follows, subject to the qualifications set

forth in § 30.5(ee)(2) of these

regulations:

(a) If there is no child, all to the

widow or widower.

(b) If there are both a widow or

widower and a child or children, onehalf to the widow or widower and onehalf to the child or children in equal

shares.

(c) If there is no widow or widower,

to the child or children in equal shares.

(d) If there is no survivor in the above

classes, to the wholly or partly

dependent parent or parents, and

wholly dependent brother, sister,

grandparent, or grandchild, in equal

shares.

§ 30.502 When is entitlement for survivors

determined for purposes of EEOICPA?

Entitlement to any lump-sum

payment for survivor(s) under the

EEOICPA will be determined as of the

date of death of the covered employee.

Payment of Claims and Offset for

Certain Payments

§ 30.505 What are the procedures for

payment of claims?

(a) Except with respect to claims

related to beryllium sensitivity,

payment shall be made to the claimant,

or to the legal guardian of the claimant,

unless the claimant is deceased at the

time of the payment. In cases involving

a claimant who is deceased, payment

shall be made to an eligible surviving

beneficiary, or to the legal guardian

acting on behalf of the eligible surviving

beneficiary, in accordance with the

terms and conditions specified in

section 3628(e) of the EEOICPA.

(b) In cases involving the approval of

a claim, OWCP shall take all necessary

and appropriate steps to determine the

correct amount of any offset to be made

to the amount awarded under the

EEOICPA, and to verify the identity of

the claimant or the existence of any

eligible surviving beneficiaries who

allege to be entitled by the EEOICPA to

receive all or part of the payment the

claimant would have received. OWCP

may conduct any investigation, require

any claimant or eligible surviving

beneficiary to provide or execute any

affidavit, record, or document, or

authorize the release of any information

as OWCP deems necessary to ensure

that the compensation payment is made

in the correct amount and to the correct

person(s). If the claimant or eligible

surviving beneficiary fails or refuses to

execute an affidavit or release of

information, or provide a requested

record or document, or fails to provide

access to information, such failure or

refusal may be deemed to be a rejection

of the payment, unless the claimant or

eligible surviving beneficiary of the

claimant does not have and cannot

obtain the legal authority to provide,

release, or authorize access to the

required information, records, or

documents.

(c) Prior to authorizing payment,

OWCP shall require the claimant or

each eligible surviving beneficiary of a

claim filed under these regulations to

execute and provide an affidavit (or

declaration under oath on the standard

claim form) setting forth the amount of

any payment made pursuant to a final

award or settlement on a claim (other

than a claim for workers’

compensation), against any person, that

is based on injuries incurred by the

claimant for which his/her claim under

the EEOICPA was submitted. For

purposes of this subsection, a ‘‘claim’’

includes, but is not limited to, any

request or demand for money made or

sought in a civil action, or made or

sought in anticipation of the filing of a

civil action, but shall not include

requests or demands made pursuant to

a life insurance or health insurance

contract. If any such award or

settlement payment was made, OWCP

shall subtract the sum of such award or

settlement payments from the payment

to be made under the EEOICPA. Prior to

authorizing payment, OWCP shall also

require the claimant or each surviving

beneficiary to execute and provide any

necessary affidavit described in § 30.617

of these regulations.

28976 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

(d) Except as provided in paragraph

(e) of this section, when OWCP has

verified the identity of the claimant or

each eligible surviving beneficiary who

is entitled to the compensation

payment, or to a share of the

compensation payment, and determined

the correct amount of the payment or

the share of the payment, OWCP shall

notify the claimant or each eligible

surviving beneficiary, or his/her legal

guardian, and require such person(s) to

sign an Acceptance of Payment Form.

Such form shall be signed and returned

within sixty days of the date of the form

or such greater period as may be

allowed by OWCP. Failure to return the

signed form within the required time

may be deemed to be a rejection of the

payment. Signing and returning the

form within the required time shall

constitute acceptance of the payment,

unless the individual who has signed

the form dies prior to receiving the

actual payment, in which case the

person who possesses the payment shall

return it to OWCP for redetermination of

the correct disbursement of the

payment. No payment shall be made

until OWCP has made a determination

concerning the survivors related to a

respective claim for benefits.

(e) Compensation for consequential

illness or disease is limited to payment

of medical benefits for that illness or

disease.

(f) Rejected compensation payments,

or shares of compensation payments,

shall not be distributed to other eligible

surviving beneficiaries, but shall be

returned to the Fund for use in paying

other claims.

(g) Upon receipt of the Acceptance of

Payment Form, OWCP shall authorize

the appropriate authorities to issue a

check to the claimant or each surviving

eligible beneficiary who has accepted

payment out of the funds appropriated

for this purpose.

(h) Multiple payments:

(1) No claimant may receive more

than one lump-sum payment under

these regulations for any occupational

illnesses he or she contracted. However,

he or she may also receive one lumpsum payment for each claimant for

whom he or she qualifies as an eligible

surviving beneficiary.

(2) An eligible surviving beneficiary,

who is not also a claimant, may receive

one lump-sum payment for each

claimant for whom he or she qualifies

as an eligible surviving beneficiary.

§ 30.506 What compensation will be

provided to claimants who only establish

beryllium sensitivity?

A covered employee whose sole

occupational illness is beryllium

sensitivity shall receive beryllium

sensitivity monitoring. The

establishment of beryllium sensitivity

does not entitle the covered employee to

any lump-sum payment or other

medical benefits provided for under the

EEOICPA.

§ 30.507 What is beryllium sensitivity

monitoring?

Beryllium sensitivity monitoring shall

consist of medical examinations to

confirm and monitor the extent and

nature of the individual’s beryllium

sensitivity. Monitoring shall also

include regular medical examinations,

including diagnostic testing to

determine whether the individual has

established chronic beryllium disease.

Overpayments

§ 30.510 How does OWCP notify an

individual of a payment made on a claim?

(a) In addition to providing narrative

descriptions to recipients of benefits

paid or payable, OWCP includes on

each check a clear indication of the

reason the payment is being made. For

payments sent by electronic funds

transfer (EFT), a notification of the date

and amount of payment appears on the

statement from the recipient’s financial

institution.

(b) By these means, OWCP puts the

recipient on notice that a payment was

made and the amount of the payment.

If the amount received differs from the

amount indicated on the written notice

or bank statement, the recipient is

responsible for notifying OWCP of the

difference. Absent affirmative evidence

to the contrary, the beneficiary will be

presumed to have received the notice of

payment, whether mailed or transmitted

electronically.

§ 30.511 What is an ‘‘overpayment’’ for

purposes of the EEOICPA?

An ‘‘overpayment’’ is any amount of

compensation paid under sections

3628(a)(1) or 3630(a) of the EEOICPA to

a recipient that constitutes:

(a) Payment where no amount is

payable under this part; or

(b) Payment in excess of the correct

amount determined by OWCP.

§ 30.512 How does OWCP determine that a

beneficiary owes a debt as the result of the

creation of an overpayment?

OWCP will notify the beneficiary of

the existence and amount of any

overpayment, and request the

beneficiary to voluntarily return the

overpaid amount or provide OWCP with

evidence and/or argument contesting

the existence or amount of an

overpayment. Within 30 days of the

issuance of such notification, a

beneficiary who believes that OWCP

made a mistake in determining the fact

or amount of an overpayment may

submit written comments and

documentation in support of his or her

position contesting the existence or

amount of such overpayment to OWCP.

After considering any written

documentation or argument submitted

to OWCP within the 30-day period,

OWCP will issue a determination on the

question of whether a debt is owed to

OWCP. If OWCP determines that a debt

is owed by the beneficiary, it will

forward a copy of that determination to

the beneficiary and advise him or her

that unless the debt is voluntarily repaid

it will pursue collection of the

overpayment through DOL’s debt

collection procedures found at 29 CFR

part 20.

§ 30.513 How are overpayments collected?

The overpaid individual shall refund

to OWCP the amount of the

overpayment as soon as possible. The

overpayment is subject to the provisions

of the Federal Claims Collection Act of

1966 (as amended) and may be reported

to the Internal Revenue Service as

income. If the individual fails to make

such refund, OWCP may recover the

same through any available means,

including offset of salary, annuity

benefits, or other Federal payments,

including tax refunds as authorized by

the Tax Refund Offset Program, or

referral of the debt to a collection

agency or to the Department of Justice.

Subpart G—Special Provisions

Representation

§ 30.600 May a claimant designate a

representative?

(a) The claims process under this part

is informal, and OWCP acts as an

impartial evaluator of the evidence. A

claimant need not be represented to file

a claim or receive a payment.

Nevertheless, a claimant may appoint

one individual to represent his or her

interests, but the appointment must be

in writing.

(b) There can be only one

representative at any one time, so after

one representative has been properly

appointed, OWCP will not recognize

another individual as representative

until the claimant withdraws the

authorization of the first individual. In

addition, OWCP will recognize only

certain types of individuals (see

§ 30.601).

(c) A properly appointed

representative who is recognized by

OWCP may make a request or give

direction to OWCP regarding the claims

process, including a hearing. This

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28977

authority includes presenting or

eliciting evidence, making arguments on

facts or the law, and obtaining

information from the case file, to the

same extent as the claimant. Any notice

requirement contained in this part or

the EEOICPA is fully satisfied if served

on the representative, and has the same

force and effect as if sent to the

claimant.

§ 30.601 Who may serve as a

representative?

A claimant may authorize any

individual to represent him or her in

regard to a claim under the EEOICPA,

unless that individual’s service as a

representative would violate any

applicable provision of law (such as 18

U.S.C. 205 and 208). A federal employee

may act as a representative only:

(a) On behalf of immediate family

members, defined as a spouse, children,

parents, and siblings of the

representative, provided no fee or

gratuity is charged; or

(b) While acting as a union

representative, defined as any officially

sanctioned union official, and no fee or

gratuity is charged.

§ 30.602 Who is responsible for paying the

representative’s fee?

A representative may charge the

claimant a fee for services and for costs

associated with the representation

before OWCP. The claimant is solely

responsible for paying the fee and other

costs. OWCP will not reimburse the

claimant, nor is it in any way liable for

the amount of the fee and costs.

Third Party Liability

§ 30.605 What rights does the United

States have upon payment of compensation

under the EEOICPA?

If an illness for which compensation

is payable under the EEOICPA is

caused, wholly or partially, by someone

other than a federal employee acting

within the scope of his or her

employment, a DOE contractor, or

subcontractor, a beryllium vendor or

atomic weapons employer, the United

States is subrogated for the full amount

of any payment of compensation under

the EEOICPA to any right or claim that

the individual to whom the payment

was made may have against any person

or entity on account of such illness.

§ 30.606 Under what circumstances must a

recovery of money or other property in

connection with an illness for which

benefits are payable under the EEOICPA be

reported to OWCP?

Any person who has filed an

EEOICPA claim that has been accepted

by OWCP (whether or not compensation

has been paid), or who has received

EEOICPA benefits in connection with a

claim filed by another, is required to

notify OWCP of the receipt of money or

other property as a result of a settlement

or judgment in connection with the

circumstances of that claim.

§ 30.607 How is a structured settlement

(that is, a settlement providing for receipt of

funds over a specified period of time)

treated for purposes of reporting the

recovery?

In this situation, the recovery to be

reported is the present value of the right

to receive all of the payments included

in the structured settlement, allocated in

the case of multiple recipients in the

same manner as single payment

recoveries.

§ 30.608 How does the United States

calculate the amount to which it is

subrogated?

The subrogated amount of a specific

claim consists of the total money paid

by OWCP from the Energy Employees

Occupational Illness Compensation

Fund with respect to that claim to or on

behalf of an employee or eligible

surviving beneficiary, less charges for

any medical file review (i.e., the

physician does not examine the

employee) done at the request of OWCP.

Charges for medical examinations also

may be subtracted if the employee or

eligible surviving beneficiary establishes

that the examinations were required to

be made available to the employee

under a statute other than the EEOICPA.

§ 30.609 Is a settlement or judgment

received as a result of allegations of

medical malpractice in treating an illness

covered by the EEOICPA a recovery that

must be reported to OWCP?

Since an injury caused by medical

malpractice in treating an illness

covered by the EEOICPA is also covered

under the EEOICPA, any recovery in a

suit alleging such an injury is treated as

a recovery that must be reported to

OWCP.

§ 30.610 Are payments to an employee or

eligible surviving beneficiary as a result of

an insurance policy which the employee or

eligible surviving beneficiary has

purchased a recovery that must be reported

to OWCP?

Since payments received by an

employee or eligible surviving

beneficiary pursuant to an insurance

policy purchased by someone other than

a liable third party are not payments in

satisfaction of liability for causing an

illness covered by the EEOICPA, they

are not considered a recovery that must

be reported to OWCP.

§ 30.611 If a settlement or judgment is

received for more than one medical

condition, can the amount paid on a single

EEOICPA claim be attributed to different

conditions for purposes of calculating the

amount to which the United States is

subrogated?

(a) All medical conditions accepted

by OWCP in connection with a single

claim are treated as the same illness for

the purpose of computing the amount to

which the United States is subrogated in

connection with the receipt of a

recovery from a third party, except that

an injury caused by medical malpractice

in treating an illness covered under the

EEOICPA will be treated as a separate

injury.

(b) If an illness covered under the

EEOICPA is caused under

circumstances creating a legal liability

in more than one person, other than the

United States, a DOE contractor or

subcontractor, a beryllium vendor or an

atomic weapons employer, to pay

damages, OWCP will determine whether

recoveries received from one or more

third parties should be attributed to

separate conditions for which

compensation is payable in connection

with a single EEOICPA claim. If such an

attribution is both practicable and

equitable, as determined by OWCP, in

its discretion, the conditions will be

treated as separate injuries for purposes

of calculating the amount to which the

United States is subrogated.

Election of Remedy Against Beryllium

Vendors and Atomic Weapons

Employers

§ 30.615 Can a claimant receive benefits

under the EEOICPA if he or she filed a tort

suit against either a beryllium vendor or an

atomic weapons employer on or prior to

October 30, 2000?

A claimant who filed a tort suit

against either a beryllium vendor or an

atomic weapons employer on or prior to

October 30, 2000, shall not be eligible to

receive benefits under subtitle B of the

EEOICPA unless he or she dismisses

such suit no later than December 31,

2003.

§ 30.616 Can a claimant receive benefits

under the EEOICPA if he or she filed a tort

suit against either a beryllium vendor or an

atomic weapons employer after October 30,

2000?

(a) Unless a tort suit filed under

paragraphs (b) and (c) of this section is

dismissed prior to the time limitations

described in those subsections, the

plaintiff shall not be eligible to receive

benefits under subtitle B of the

EEOICPA.

(b) If a claimant files a tort suit against

either a beryllium vendor or an atomic

weapons employer after October 30,

28978 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

2000, such a suit must be filed by the

later of:

(1) April 30, 2003; or

(2) 30 months after the date the

plaintiff first became aware that his or

her illness may be connected to the

exposure covered by subtitle B of the

EEOICPA.

(c) For purposes of this section only,

‘‘the date the plaintiff first became

aware’’ will be deemed to be the date he

or she received either a reconstructed

dose from the HHS, or a diagnosis of a

covered beryllium illness, as applicable.

(d) If a claimant files a tort suit against

either a beryllium vendor or an atomic

weapons employer after the later of the

dates described in paragraphs (b) and (c)

of this section, he or she is not entitled

to any benefits under subtitle B of the

EEOICPA.

§ 30.617 How will OWCP ascertain whether

a claimant filed a tort suit against either a

beryllium vendor or an atomic weapons

employer and whether such claimant is

entitled to benefits under the EEOICPA?

Prior to authorizing any payment on

a claim under § 30.505 of these

regulations, OWCP will require the

claimant or each surviving beneficiary

to execute and provide an affidavit

stating whether he or she filed a tort suit

against either a beryllium vendor or an

atomic weapons employer, and if so, the

date such tort suit was dismissed.

OWCP may require the submission of

such supporting evidence as may be

necessary to confirm the particulars of

any affidavit provided under this

section.

Subpart H—Information for Medical

Providers

Medical Records and Bills

§ 30.700 What kinds of medical records

must providers keep?

Federal government medical officers,

private physicians and hospitals are

required to keep records of all cases

treated by them under the EEOICPA so

they can supply OWCP with a history of

the claimed occupational illness, a

description of the nature and extent of

the claimed occupational illness, the

results of any diagnostic studies

performed, and the nature of the

treatment rendered.

§ 30.701 How are medical bills to be

submitted?

(a) All charges for medical and

surgical treatment, appliances or

supplies furnished to employees, except

for treatment and supplies provided by

nursing homes, shall be supported by

medical evidence as provided in

§ 30.700. The physician or provider

shall itemize the charges on the

standard Health Insurance Claim Form,

HCFA 1500 or OWCP 1500 (for

professional charges), the UB–92 (for

hospitals), the Universal Claim Form

(for pharmacies), or other form as

warranted, and submit the form

promptly for processing.

(b) The provider shall identify each

service performed using the Physician’s

Current Procedural Terminology (CPT)

code, the Health Care Financing

Administration Common Procedure

Coding System (HCPCS) code, the

National Drug Code (NDC), or the

Revenue Center Code (RCC), with a brief

narrative description. Where no code is

applicable, a detailed description of

services performed should be provided.

(c) The provider shall also state each

diagnosed condition and furnish the

corresponding diagnostic code using the

‘‘International Classification of Disease,

9th Edition, Clinical Modification’’

(ICD–9–CM), or as revised. A separate

bill shall be submitted when the

employee is discharged from treatment

or monthly, if treatment for the

occupational illness is necessary for

more than 30 days.

(1)(i) Hospitals shall submit charges

for medical and surgical treatment or

supplies promptly on the UB–92. The

provider shall identify each outpatient

radiology service, outpatient pathology

service and physical therapy service

performed, using HCPCS/CPT codes

with a brief narrative description. The

charge for each individual service, or

the total charge for all identical services,

should also appear in the UB–92.

(ii) Other outpatient hospital services

for which HCPCS/CPT codes exist shall

also be coded individually using the

coding scheme noted in this section.

Services for which there are no HCPCS/

CPT codes available can be presented

using the RCCs described in the

‘‘National Uniform Billing Data

Elements Specifications,’’ current

edition. The provider shall also furnish

the diagnostic code using the ICD–9–

CM. If the outpatient hospital services

include surgical and/or invasive

procedures, the provider shall code each

procedure using the proper CPT/HCPCS

codes and furnishing the corresponding

diagnostic codes using the ICD–9–CM.

(2) Pharmacies shall itemize charges

for prescription medications,

appliances, or supplies on the Universal

Claim Form and submit them promptly

for processing. Bills for prescription

medications must include the NDC

assigned to the product, the generic or

trade name of the drug provided, the

prescription number, the quantity

provided, and the date the prescription

was filled.

(3) Nursing homes shall itemize

charges for appliances, supplies or

services on the provider’s billhead

stationery and submit them promptly

for processing.

(d) By submitting a bill and/or

accepting payment, the provider

signifies that the service for which

reimbursement is sought was performed

as described and was necessary. In

addition, the provider thereby agrees to

comply with all regulations set forth in

this subpart concerning the rendering of

treatment and/or the process for seeking

reimbursement for medical services,

including the limitation imposed on the

amount to be paid for such services.

(e) In summary, bills submitted by

providers must: be itemized on the

Health Insurance Claim Form (for

physicians), the UB–92 (for hospitals),

or the Universal Claim Form (for

pharmacies); contain the signature or

signature stamp of the provider; and

identify the procedures using HCPCS/

CPT codes, RCCs, or NDCs. Otherwise,

the bill may be returned to the provider

for correction and resubmission.

§ 30.702 How should an employee prepare

and submit requests for reimbursement for

medical expenses, transportation costs,

loss of wages, and incidental expenses?

(a) If an employee has paid bills for

medical, surgical or other services,

supplies or appliances due to an

occupational illness, he or she may

submit an itemized bill on the Health

Insurance Claim Form, HCFA 1500 or

OWCP 1500, together with a medical

report as provided in § 30.700, for

consideration.

(1) The provider of such service shall

state each diagnosed condition and

furnish the applicable ICD–9–CM code

and identify each service performed

using the applicable HCPCS/CPT code,

with a brief narrative description of the

service performed, or, where no code is

applicable, a detailed description of that

service.

(2) The bill must be accompanied by

evidence that the provider received

payment for the service from the

employee and a statement of the amount

paid. Acceptable evidence that payment

was received includes, but is not limited

to, a signed statement by the provider,

a mechanical stamp or other device

showing receipt of payment, a copy of

the employee’s canceled check (both

front and back) or a copy of the

employee’s credit card receipt.

(b) If a hospital, pharmacy or nursing

home provided services, the employee

should submit the bill in accordance

with the provisions of § 30.701(a). Any

request for reimbursement must be

accompanied by evidence, as described

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28979

in paragraph (a) of this section, that the

provider received payment for the

service from the employee and a

statement of the amount paid.

(c) The requirements of paragraphs (a)

and (b) of this section may be waived if

extensive delays in the filing or the

adjudication of a claim make it

unusually difficult for the employee to

obtain the required information.

(d) Copies of bills submitted for

reimbursement will not be accepted

unless they bear the original signature of

the provider, with evidence of payment.

Payment for medical and surgical

treatment, appliances or supplies shall

in general be no greater than the

maximum allowable charge for such

service determined by OWCP, as set

forth in § 30.705.

(e) An employee will be only partially

reimbursed for a medical expense if the

amount he or she paid to a provider for

the service exceeds the maximum

allowable charge set by OWCP’s

schedule. If this happens, OWCP will

advise the employee of the maximum

allowable charge for the service in

question and of his or her responsibility

to ask the provider to refund to the

employee, or credit to the employee’s

account, the amount he or she paid

which exceeds the maximum allowable

charge. The provider may request

reconsideration of the fee determination

as set forth in § 30.712.

(f) If the provider fails to make

appropriate refund to the employee, or

to credit the employee’s account, within

60 days after the employee requests a

refund of any excess amount, or the date

of a subsequent reconsideration

decision which continues to disallow all

or a portion of the appealed amount,

OWCP will initiate exclusion

procedures as provided by § 30.715.

(g) If the provider does not refund to

the employee or credit to his or her

account the amount of money paid in

excess of the allowed charge, the

employee should submit documentation

of the attempt to obtain such refund or

credit to OWCP. OWCP may authorize

reasonable reimbursement to the

employee after reviewing the facts and

circumstances of the case.

§ 30.703 What are the time limitations on

OWCP’s payment of bills?

OWCP will pay providers and

reimburse employees promptly for all

bills received on an approved form and

in a timely manner. However, no bill

will be paid for expenses incurred if the

bill is submitted more than one year

beyond the end of the calendar year in

which the expense was incurred or the

service or supply was provided, or more

than one year beyond the end of the

calendar year in which the claim was

first accepted as compensable by OWCP,

whichever is later.

Medical Fee Schedule

§ 30.705 What services are covered by the

OWCP fee schedule?

(a) Payment for medical and other

health services furnished by physicians,

hospitals and other providers for

occupational illnesses shall not exceed

a maximum allowable charge for such

service as determined by OWCP, except

as provided in this section.

(b) The schedule of maximum

allowable charges does not apply to

charges for services provided in nursing

homes, but it does apply to charges for

treatment furnished in a nursing home

by a physician or other medical

professional.

(c) The schedule of maximum

allowable charges also does not apply to

charges for appliances, supplies,

services or treatment furnished by

medical facilities of the U.S. Public

Health Service or the Departments of the

Army, Navy, Air Force and Veterans

Affairs.

§ 30.706 How are the maximum fees

defined?

For professional medical services,

OWCP shall maintain a schedule of

maximum allowable fees for procedures

performed in a given locality. The

schedule shall consist of: an assignment

of a value to procedures identified by

HCPCS/CPT code which represents the

relative skill, effort, risk and time

required to perform the procedure, as

compared to other procedures of the

same general class; an index based on a

relative value scale that considers skill,

labor, overhead, malpractice insurance

and other related costs; and a monetary

value assignment (conversion factor) for

one unit of value in each of the

categories of service.

§ 30.707 How are payments for particular

services calculated?

Payment for a procedure identified by

a HCPCS/CPT code shall not exceed the

amount derived by multiplying the

relative values for that procedure by the

geographic indices for services in that

area and by the dollar amount assigned

to one unit in that category of service.

(a) The ‘‘locality’’ which serves as a

basis for the determination of average

cost is defined by the Bureau of Census

Metropolitan Statistical Areas. OWCP

shall base the determination of the

relative per capita cost of medical care

in a locality using information about

enrollment and medical cost per county,

provided by the Health Care Financing

Administration (HCFA).

(b) OWCP shall assign the relative

value units (RVUs) published by HCFA

to all services for which HCFA has

made assignments, using the most

recent revision. Where there are no

RVUs assigned to a procedure, OWCP

may develop and assign any RVUs

considered appropriate. The geographic

adjustment factor shall be that

designated by Geographic Practice Cost

Indices for Metropolitan Statistical

Areas as devised for HCFA and as

updated or revised by HCFA from time

to time. OWCP will devise conversion

factors for each category of service, and

in doing so may adapt HCFA conversion

factors as appropriate using OWCP’s

processing experience and internal data.

(c) For example, if the unit values for

a particular surgical procedure are 2.48

for physician’s work (W), 3.63 for

practice expense (PE), and 0.48 for

malpractice insurance (M), and the

dollar value assigned to one unit in that

category of service (surgery) is $61.20,

then the maximum allowable charge for

one performance of that procedure is the

product of the three RVUs times the

corresponding geographical indices for

the locality times the conversion factor.

If the geographic indices for the locality

are 0.988(W), 0.948 (PE), and 1.174 (M),

then the maximum payment calculation

is:

[(2.48)(0.988) + (3.63)(0.948) +

(0.48)(1.174)] × $61.20

[2.45 + 3.44 + .56] × $61.20

6.45 × $61.20 = $394.74

§ 30.708 Does the fee schedule apply to

every kind of procedure?

Where the time, effort and skill

required to perform a particular

procedure vary widely from one

occasion to the next, OWCP may choose

not to assign a relative value to that

procedure. In this case the allowable

charge for the procedure will be set

individually based on consideration of a

detailed medical report and other

evidence. At its discretion, OWCP may

set fees without regard to schedule

limits for specially authorized

consultant examinations, for directed

medical examinations, and for other

specially authorized services.

§ 30.709 How are payments for medicinal

drugs determined?

Payment for medicinal drugs

prescribed by physicians shall not

exceed the amount derived by

multiplying the average wholesale price

of the medication by the quantity or

amount provided, plus a dispensing fee.

(a) All prescription medications

identified by National Drug Code (NDC)

will be assigned an average wholesale

price representing the product’s

28980 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

nationally recognized wholesale price as

determined by surveys of manufacturers

and wholesalers. OWCP will establish

the dispensing fee.

(b) The NDCs, the average wholesale

prices, and the dispensing fee shall be

reviewed from time to time and updated

as necessary.

§ 30.710 How are payments for inpatient

medical services determined?

(a) OWCP will pay for inpatient

medical services according to predetermined, condition-specific rates

based on the Prospective Payment

System (PPS) devised by HCFA (42 CFR

parts 412, 413, 424, 485, and 489). Using

this system, payment is derived by

multiplying the diagnosis-related group

(DRG) weight assigned to the hospital

discharge by the provider-specific

factors.

(1) All hospital discharges will be

classified according to the DRGs

prescribed by the HCFA in the form of

the DRG Grouper software program. On

this list, each DRG represents the

average resources necessary to provide

care in a case in that DRG relative to the

national average of resources consumed

per case.

(2) The provider-specific factors will

be provided by HCFA in the form of

their PPS Pricer software program. The

software takes into consideration the

type of facility, census division, actual

geographic location (MSA) of the

hospital, case mix cost per discharge,

number of hospital beds, intern/beds

ratio, operating cost to charge ratio, and

other factors used by HCFA to

determine the specific rate for a hospital

discharge under their PPS. OWCP may

devise price adjustment factors as

appropriate using OWCP’s processing

experience and internal data.

(3) OWCP will base payments to

facilities excluded from HCFA’s PPS on

consideration of detailed medical

reports and other evidence.

(4) OWCP shall review the predetermined hospital rates at least once

a year, and may adjust any or all

components when OWCP deems it

necessary or appropriate.

(b) OWCP shall review the schedule

of fees at least once a year, and may

adjust the schedule or any of its

components when OWCP deems it

necessary or appropriate.

§ 30.711 When and how are fees reduced?

(a) OWCP shall accept a provider’s

designation of the code to identify a

billed procedure or service if the code

is consistent with medical reports and

other evidence. Where no code is

supplied, OWCP may determine the

code based on the narrative description

of the procedure on the billing form and

in associated medical reports. OWCP

will pay no more than the maximum

allowable fee for that procedure.

(b) If the charge submitted for a

service supplied to an employee

exceeds the maximum amount

determined to be reasonable according

to the schedule, OWCP shall pay the

amount allowed by the schedule for that

service and shall notify the provider in

writing that payment was reduced for

that service in accordance with the

schedule. OWCP shall also notify the

provider of the method for requesting

reconsideration of the balance of the

charge.

§ 30.712 If OWCP reduces a fee, may a

provider request reconsideration of the

reduction?

(a) A physician or other provider

whose charge for service is only

partially paid because it exceeds a

maximum allowable amount set by

OWCP may, within 30 days, request

reconsideration of the fee

determination.

(1) The provider should make such a

request to the district office with

jurisdiction over the employee’s claim.

The request must be accompanied by

documentary evidence that the

procedure performed was incorrectly

identified by the original code, that the

presence of a severe or concomitant

medical condition made treatment

especially difficult, or that the provider

possessed unusual qualifications. In

itself, board certification in a specialty

is not sufficient evidence of unusual

qualifications to justify an exception.

These are the only three circumstances

that will justify reevaluation of the paid

amount.

(2) A list of district offices and their

respective areas of jurisdiction is

available upon request from the U.S.

Department of Labor, Office of Workers’

Compensation Programs, Washington,

DC 20210, or from OWCP’s home page

on the Internet at www.dol.gov/dol/esa/

public/owcp_org.htm. Within 30 days of

receiving the request for

reconsideration, the district office shall

respond in writing stating whether or

not an additional amount will be

allowed as reasonable, considering the

evidence submitted.

(b) If the district office issues a

decision that continues to disallow a

contested amount, the provider may

apply to the Regional Director of the

region with jurisdiction over the district

office. The application must be filed

within 30 days of the date of such

decision, and it may be accompanied by

additional evidence. Within 60 days of

receipt of such application, the Regional

Director shall issue a decision in writing

stating whether or not an additional

amount will be allowed as reasonable,

considering the evidence submitted.

§ 30.713 If OWCP reduces a fee, may a

provider bill the employee for the balance?

A provider whose fee for service is

partially paid by OWCP as a result of

the application of its fee schedule or

other tests for reasonableness in

accordance with this part shall not

request reimbursement from the

employee for additional amounts.

(a) Where a provider’s fee for a

particular service or procedure is lower

to the general public than as provided

by the schedule of maximum allowable

charges, the provider shall bill at the

lower rate. A fee for a particular service

or procedure which is higher than the

provider’s fee to the general public for

that same service or procedure will be

considered a charge ‘‘substantially in

excess of such provider’s customary

charges’’ for the purposes of § 30.715(d).

(b) A provider whose fee for service

is partially paid by OWCP as the result

of the application of the schedule of

maximum allowable charges and who

collects or attempts to collect from the

employee, either directly or through a

collection agent, any amount in excess

of the charge allowed by OWCP, and

who does not cease such action or make

appropriate refund to the employee

within 60 days of the date of the

decision of OWCP, shall be subject to

the exclusion procedures provided by

§ 30.715(h).

Exclusion of Providers

§ 30.715 What are the grounds for

excluding a provider from payment under

this part?

A physician, hospital, or provider of

medical services or supplies shall be

excluded from payment under this part

if such physician, hospital or provider

has:

(a) Been convicted under any criminal

statute of fraudulent activities in

connection with any federal or state

program for which payments are made

to providers for similar medical,

surgical or hospital services, appliances

or supplies;

(b) Been excluded or suspended, or

has resigned in lieu of exclusion or

suspension, from participation in any

federal or state program referred to in

paragraph (a) of this section;

(c) Knowingly made, or caused to be

made, any false statement or

misrepresentation of a material fact in

connection with a determination of the

right to reimbursement under this part,

or in connection with a request for

payment;

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28981

(d) Submitted, or caused to be

submitted, three or more bills or

requests for payment within a 12-month

period under this subpart containing

charges which OWCP finds to be

substantially in excess of such

provider’s customary charges, unless

OWCP finds there is good cause for the

bills or requests containing such

charges;

(e) Knowingly failed to timely

reimburse employees for treatment,

services or supplies furnished under

this subpart and paid for by OWCP;

(f) Failed, neglected or refused on

three or more occasions during a 12-

month period to submit full and

accurate medical reports, or to respond

to requests by OWCP for additional

reports or information, as required by

§ 30.700 of this part;

(g) Knowingly furnished treatment,

services or supplies which are

substantially in excess of the employee’s

needs, or of a quality which fails to meet

professionally recognized standards; or

(h) Collected or attempted to collect

from the employee, either directly or

through a collection agent, an amount in

excess of the charge allowed by OWCP

for the procedure performed, and has

failed or refused to make appropriate

refund to the employee, or to cease such

collection attempts, within 60 days of

the date of the decision of OWCP.

§ 30.716 What will cause OWCP to

automatically exclude a physician or other

provider of medical services and supplies?

(a) OWCP shall automatically exclude

a physician, hospital, or provider of

medical services or supplies who has

been convicted of a crime described in

§ 30.715(a), or has been excluded or

suspended, or has resigned in lieu of

exclusion or suspension, from

participation in any program as

described in § 30.715(b).

(b) The exclusion applies to

participating in the program and to

seeking payment under this part for

services performed after the date of the

entry of the judgment of conviction or

order of exclusion, suspension or

resignation, as the case may be, by the

court or agency concerned. Proof of the

conviction, exclusion, suspension or

resignation may consist of a copy

thereof authenticated by the seal of the

court or agency concerned.

§ 30.717 When are OWCP’s exclusion

procedures initiated?

Upon receipt of information

indicating that a physician, hospital or

provider of medical services or supplies

(hereinafter the provider) has engaged in

activities enumerated in paragraphs (c)

through (h) of § 30.715, the Regional

Director, after completion of inquiries

he or she deems appropriate, may

initiate procedures to exclude the

provider from participation in the

EEOICPA program. For the purposes of

these procedures, ‘‘Regional Director’’

may include any officer designated to

act on his or her behalf.

§ 30.718 How is a provider notified of

OWCP’s intent to exclude him or her?

The Regional Director shall initiate

the exclusion process by sending the

provider a letter, by certified mail and

with return receipt requested, which

shall contain the following:

(a) A concise statement of the grounds

upon which exclusion shall be based;

(b) A summary of the information,

with supporting documentation, upon

which the Regional Director has relied

in reaching an initial decision that

exclusion proceedings should begin;

(c) An invitation to the provider to:

(1) Resign voluntarily from

participation in the EEOICPA program

without admitting or denying the

allegations presented in the letter; or

(2) Request that the decision on

exclusion be based upon the existing

record and any additional documentary

information the provider may wish to

furnish;

(d) A notice of the provider’s right, in

the event of an adverse ruling by the

Regional Director, to request a formal

hearing before an administrative law

judge;

(e) A notice that should the provider

fail to answer (as described in § 30.719)

the letter of intent within 30 calendar

days of receipt, the Regional Director

may deem the allegations made therein

to be true and may order exclusion of

the provider without conducting any

further proceedings; and

(f) The name and address of the

OWCP representative who shall be

responsible for receiving the answer

from the provider.

§ 30.719 What requirements must the

provider’s reply and OWCP’s decision

meet?

(a) The provider’s answer shall be in

writing and shall include an answer to

OWCP’s invitation to resign voluntarily.

If the provider does not offer to resign,

he or she shall request that a

determination be made upon the

existing record and any additional

information provided.

(b) Should the provider fail to answer

the letter of intent within 30 calendar

days of receipt, the Regional Director

may deem the allegations made therein

to be true and may order exclusion of

the provider.

(c) By arrangement with the official

representative, the provider may inspect

or request copies of information in the

record at any time prior to the Regional

Director’s decision.

(d) The Regional Director shall issue

his or her decision in writing, and shall

send a copy of the decision to the

provider by certified mail, return receipt

requested. The decision shall advise the

provider of his or her right to request,

within 30 days of the date of the adverse

decision, a formal hearing before an

administrative law judge under the

procedures set forth in § 30.720. The

filing of a request for a hearing within

the time specified shall stay the

effectiveness of the decision to exclude.

§ 30.720 How can an excluded provider

request a hearing?

A request for a hearing shall be sent

to the official representative named

under § 30.718(f) and shall contain:

(a) A concise notice of the issues on

which the provider desires to give

evidence at the hearing;

(b) Any request for a more definite

statement by OWCP;

(c) Any request for the presentation of

oral argument or evidence; and

(d) Any request for a certification of

questions concerning professional

medical standards, medical ethics or

medical regulation for an advisory

opinion from a competent recognized

professional organization or federal,

state or local regulatory body.

§ 30.721 How are hearings assigned and

scheduled?

(a) If the designated OWCP

representative receives a timely request

for hearing, the OWCP representative

shall refer the matter to the Chief

Administrative Law Judge of the

Department of Labor, who shall assign

it for an expedited hearing. The

administrative law judge assigned to the

matter shall consider the request for

hearing, act on all requests therein, and

issue a Notice of Hearing and Hearing

Schedule for the conduct of the hearing.

A copy of the hearing notice shall be

served on the provider by certified mail,

return receipt requested. The Notice of

Hearing and Hearing Schedule shall

include:

(1) A ruling on each item raised in the

request for hearing;

(2) A schedule for the prompt

disposition of all preliminary matters,

including requests for more definite

statements and for the certification of

questions to advisory bodies; and

(3) A scheduled hearing date not less

than 30 days after the date the schedule

is issued, and not less than 15 days after

the scheduled conclusion of preliminary

matters, provided that the specific time

and place of the hearing may be set on

10 days’ notice.

28982 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

(b) The purpose of the designation of

issues is to provide for an effective

hearing process. The provider is entitled

to be heard on any matter placed in

issue by his or her response to the

Notice of Intent to Exclude, and may

designate ‘‘all issues’’ for purposes of

hearing. However, a specific designation

of issues is required if the provider

wishes to interpose affirmative defenses

or request the certification of questions

for an advisory opinion.

§ 30.722 How are advisory opinions

obtained?

A certification of a request for an

advisory opinion concerning

professional medical standards, medical

ethics or medical regulation to a

competent recognized or professional

organization or federal, state or local

regulatory agency may be made:

(a) As to an issue properly designated

by the provider, in the sound discretion

of the administrative law judge,

provided that the request will not

unduly delay the proceedings;

(b) By OWCP on its own motion either

before or after the institution of

proceedings, and the results thereof

shall be made available to the provider

at the time that proceedings are

instituted or, if after the proceedings are

instituted, within a reasonable time after

receipt. The opinion, if rendered by the

organization or agency, is advisory only

and not binding on the administrative

law judge.

§ 30.723 How will the administrative law

judge conduct the hearing and issue the

recommended decision?

(a) To the extent appropriate,

proceedings before the administrative

law judge shall be governed by 29 CFR

part 18.

(b) The administrative law judge shall

receive such relevant evidence as may

be adduced at the hearing. Evidence

shall be presented under oath, orally or

in the form of written statements. The

administrative law judge shall consider

the Notice and Response, including all

pertinent documents accompanying

them, and may also consider any

evidence which refers to the provider or

to any claim with respect to which the

provider has provided medical services,

hospital services, or medical services

and supplies, and such other evidence

as the administrative law judge may

determine to be necessary or useful in

evaluating the matter.

(c) All hearings shall be recorded and

the original of the complete transcript

shall become a permanent part of the

official record of the proceedings.

(d) In conjunction with the hearing,

the administrative law judge may:

(1) Administer oaths; and

(2) Examine witnesses.

(e) At the conclusion of the hearing,

the administrative law judge shall issue

a written decision and cause it to be

served on all parties to the proceeding,

their representatives and OWCP.

§ 30.724 How can a party request review

by OWCP of the administrative law judge’s

recommended decision?

(a) Any party adversely affected or

aggrieved by the decision of the

administrative law judge may file a

petition for discretionary review with

the Director for Energy Employees

Occupational Illness Compensation

within 30 days after issuance of such

decision. The administrative law judge’s

decision, however, shall be effective on

the date issued and shall not be stayed

except upon order of the Director.

(b) Review by the Director for Energy

Employees Occupational Illness

Compensation shall not be a matter of

right but of the sound discretion of the

Director.

(c) Petitions for discretionary review

shall be filed only upon one or more of

the following grounds:

(1) A finding or conclusion of material

fact is not supported by substantial

evidence;

(2) A necessary legal conclusion is

erroneous;

(3) The decision is contrary to law or

to the duly promulgated rules or

decisions of OWCP;

(4) A substantial question of law,

policy, or discretion is involved; or

(5) A prejudicial error of procedure

was committed.

(d) Each issue shall be separately

numbered and plainly and concisely

stated, and shall be supported by

detailed citations to the record when

assignments of error are based on the

record, and by statutes, regulations or

principal authorities relied upon.

Except for good cause shown, no

assignment of error by any party shall

rely on any question of fact or law upon

which the administrative law judge had

not been afforded an opportunity to

pass.

(e) A statement in opposition to the

petition for discretionary review may be

filed, but such filing shall in no way

delay action on the petition.

(f) If a petition is granted, review shall

be limited to the questions raised by the

petition.

(g) A petition not granted within 20

days after receipt of the petition is

deemed denied.

§ 30.725 What are the effects of nonautomatic exclusion?

(a) OWCP shall give notice of the

exclusion of a physician, hospital or

provider of medical services or supplies

to:

(1) All OWCP district offices;

(2) The HCFA; and

(3) All employees who are known to

have had treatment, services or supplies

from the excluded provider within the

six-month period immediately

preceding the order of exclusion.

(b) Notwithstanding any exclusion of

a physician, hospital, or provider of

medical services or supplies under this

subpart, OWCP shall not refuse an

employee reimbursement for any

otherwise reimbursable medical

treatment, service or supply if:

(1) Such treatment, service or supply

was rendered in an emergency by an

excluded physician; or

(2) The employee could not

reasonably have been expected to know

of such exclusion.

(c) An employee who is notified that

his or her attending physician has been

excluded shall have a new right to select

a qualified physician.

§ 30.726 How can an excluded provider be

reinstated?

(a) If a physician, hospital, or provider

of medical services or supplies has been

automatically excluded pursuant to

§ 30.716, the provider excluded will

automatically be reinstated upon notice

to OWCP that the conviction or

exclusion which formed the basis of the

automatic exclusion has been reversed

or withdrawn. However, an automatic

reinstatement shall not preclude OWCP

from instituting exclusion proceedings

based upon the underlying facts of the

matter.

(b) A physician, hospital, or provider

of medical services or supplies excluded

from participation as a result of an order

issued pursuant to this subpart may

apply for reinstatement one year after

the entry of the order of exclusion,

unless the order expressly provides for

a shorter period. An application for

reinstatement shall be addressed to the

Director for Energy Employees

Occupational Illness Compensation, and

shall contain a concise statement of the

basis for the application. The

application should be accompanied by

supporting documents and affidavits.

(c) A request for reinstatement may be

accompanied by a request for oral

argument. Oral argument will be

allowed only in unusual circumstances

where it will materially aid the decision

process.

(d) The Director for Energy Employees

Occupational Illness Compensation

shall order reinstatement only in

instances where such reinstatement is

clearly consistent with the goal of this

subpart to protect the EEOICPA program

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28983

against fraud and abuse. To satisfy this

requirement the provider must provide

reasonable assurances that the basis for

the exclusion will not be repeated.

Signed at Washington, DC., this 18th day

of May, 2001.

Elaine L. Chao,

Secretary of Labor.

Note: The following appendix will not

appear in the Code of Federal Regulations.

BILLING CODE 4510–CH–P

28984 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Appendix I.—Forms EE–1, EE–2, EE–3, EE–4, EE–7, EE/EN–15, EE/EN–20 and EE–915.

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28985

28986 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28987

28988 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28989

28990 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28991

28992 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28993

28994 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28995

28996 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28997

28998 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 28999

29000 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 29001

29002 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Rules and Regulations 29003

[FR Doc. 01–13113 Filed 5–24–01; 8:45 am]

BILLING CODE 4510–CH–C