[Federal Register: May 25, 2001 (Volume 66, Number 102)]
[Rules and Regulations]              
[Page 28947-29003]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25my01-8]                        


[[Page 28947]]

-----------------------------------------------------------------------

Part II





Department of Labor





-----------------------------------------------------------------------



Office of Workers' Compensation Programs



-----------------------------------------------------------------------



20 CFR Parts 1 and 30



Performance of Functions Under This Chapter; Claims for Compensation
Under the Energy Employees Occupational Illness Compensation Program
Act; Final Rule


[[Page 28948]]


-----------------------------------------------------------------------

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 Secs. 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

[[Page 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 Secs. 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 Secs. 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 (Secs. 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 <strong>filed</strong> 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 (Secs. 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 <strong>filed</strong> a
lawsuit regarding the claimed illness. OWCP may also require survivors
to provide factual information

[[Page 28950]]

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 (Secs. 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 (Secs. 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 (Secs. 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 (Sec. 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 (Secs. 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

[[Page 28951]]

information about any tort suits they may have <strong>filed</strong> 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 (Secs. 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 (Sec. 30.702)

    Summary: Once a claim has been accepted, the Department will pay
medical benefits retroactive to the date the claim was <strong>filed</strong>. 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 (Secs. 1.1
through 1.6), with the exception of the updated list of assigned
functions contained in Sec. 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

[[Page 28952]]

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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
<strong>filed</strong> 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

[[Page 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
<strong>filed</strong>, 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 Sec. 30.102 is not required to file a claim (a simple
letter that contains words of claim is legally sufficient), claims
should be <strong>filed</strong> 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, Sec. 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 Sec. 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, Sec. 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
(Sec. 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,
Sec. 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

[[Page 28954]]

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 Sec. 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 Sec. 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,
Sec. 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 non-adversarial 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,
Sec. 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, Sec. 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
Sec. 30.312 allowing partial decisions, Sec. 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 Sec. 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 Sec. 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

[[Page 28955]]

under Sec. 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 Sec. 30.316.
    Finally, Sec. 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 Sec. 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, Sec. 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 Sec. 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 <strong>filed</strong>. 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 <strong>filed</strong> 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, Secs. 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, Sec. 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, Sec. 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, Sec. 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 Secs. 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.

[[Page 28956]]

Medical Reports

    Section 30.415 contains a general description of what a medical
report submitted to OWCP from an attending physician should contain,
and Sec. 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, Sec. 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, Sec. 30.420 refers the employee to the itemized bill procedures
described in Sec. 30.702, while Sec. 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, Sec. 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 <strong>filed</strong> 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
Sec. 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 <strong>filed</strong> 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 Secs. 30.505 and 30.506 regarding
``beryllium sensitivity'' make clear that no lump-sum 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

[[Page 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, Sec. 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,
Secs. 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 <strong>filed</strong> 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 Sec. 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 Secs. 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

[[Page 28958]]

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 Sec. 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 Sec. 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 diagnosis-related group weight assigned to the hospital
discharge by the provider-specific 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

[[Page 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):

[[Page 28960]]



----------------------------------------------------------------------------------------------------------------
                                                                 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 Sec. 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 well-recognized
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

[[Page 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.


Sec. 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.

[[Page 28962]]

Sec. 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.).


Sec. 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.


Sec. 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.


Sec. 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 Sec. 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.


Sec. 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 <strong>filed</strong> 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 <strong>filed</strong>?
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?

[[Page 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 Sec. 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?

[[Page 28964]]

Election of Remedy Against Beryllium Vendors and Atomic Weapons
Employers

30.615   Can a claimant receive benefits under the EEOICPA if he or
she <strong>filed</strong> 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 <strong>filed</strong> 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 <strong>filed</strong> 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 non-automatic 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


Sec. 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.


Sec. 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.


Sec. 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
Secs. 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 Secs. 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 Sec. 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 Sec. 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
Secs. 30.105, 30.106, and 30.111).


Sec. 30.3  What do these regulations contain?

    This part 30 sets forth the regulations governing administration of
all claims <strong>filed</strong> 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 <strong>filed</strong> 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

[[Page 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 <strong>filed</strong> 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


Sec. 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 non-malignant 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 Sec. 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
Sec. 30.205), a covered employee with cancer (see Sec. 30.210), a
covered employee with chronic silicosis (see Sec. 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 Sec. 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

[[Page 28966]]

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 Sec. 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 self-support; 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.

[[Page 28967]]

Information in Program Records


Sec. 30.10  Are all OWCP records relating to claims <strong>filed</strong> 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.


Sec. 30.11  Who maintains custody and control of claim records?

    All OWCP records relating to claims for benefits <strong>filed</strong> 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.


Sec. 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 <strong>filed</strong> with the Solicitor of Labor in
accordance with 29 CFR 71.7 and 71.9.

Rights and Penalties


Sec. 30.15  May EEOICPA benefits be assigned or transferred?

    No claim for EEOICPA benefits may be assigned or transferred.


Sec. 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.


Sec. 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


Sec. 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 <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.dol.gov/dol/esa/public/owcp_org.htm">www.dol.gov/dol/esa/public/
owcp_org.htm</A>. 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 ``<strong>filed</strong>'' 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.


Sec. 30.101  In general, how is a survivor's claim <strong>filed</strong>?

    (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 <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.dol.gov/dol/esa/public/owcp_org.htm">www.dol.gov/dol/esa/public/owcp_org.htm</A>. 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 Sec. 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 ``<strong>filed</strong>'' 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

[[Page 28968]]

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.


Sec. 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
<A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.dol.gov/dol/esa/public/owcp_org.htm">www.dol.gov/dol/esa/public/owcp_org.htm</A>.

Claims for Occupational Illness--Actions of DOE


Sec. 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.


Sec. 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


Sec. 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 Sec. 30.205(a)
who has been diagnosed with a covered beryllium illness (as defined in
Sec. 30.5(o)) and was exposed to beryllium in the performance of duty
(in accordance with Sec. 30.206).
    (2) A ``covered employee with cancer'' (as described in
Sec. 30.210).
    (3) A ``covered employee with chronic silicosis'' (as described in
Sec. 30.215).
    (4) A ``covered uranium employee'' (as defined in Sec. 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.


Sec. 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 Sec. 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.

[[Page 28969]]

Sec. 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


Sec. 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 Sec. 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


Sec. 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


Sec. 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 Sec. 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 Sec. 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.


Sec. 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.

[[Page 28970]]

Sec. 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


Sec. 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 Sec. 30.5(dd) of this subpart;
and
    (1) Is a member of the Special Exposure Cohort (as described in
Sec. 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
Sec. 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 Sec. 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.


Sec. 30.211  How does a claimant establish that the employee has or had
contracted cancer?

    A claimant establishes that the employee has or had contracted
cancer with medical evidence that sets forth the diagnosis of cancer
and the date on which that diagnosis was made.


Sec. 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.


Sec. 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 Sec. 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

[[Page 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.


Sec. 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
Sec. 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


Sec. 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
Sec. 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
Sec. 30.5(j)).


Sec. 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
Sec. 30.215(a), the claimant may aggregate the days of service at more
than one qualifying site.


Sec. 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 Sec. 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


Sec. 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


Sec. 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 <strong>filed</strong> 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


Sec. 30.305  How does OWCP determine entitlement to EEOICPA
compensation?

    (a) In reaching a recommended decision with respect to EEOICPA
compensation, OWCP considers the claim presented by the claimant, the
factual and medical evidence of record, the dose reconstruction report
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.


Sec. 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.


Sec. 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

[[Page 28972]]

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


Sec. 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.


Sec. 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 <strong>filed</strong> within the period of time allotted in Sec. 30.310(b), the
FAB will issue a decision affirming the recommended decision as
provided in Sec. 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.


Sec. 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 Sec. 30.316).


Sec. 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.


Sec. 30.314  How is a hearing conducted?

    (a) The FAB reviewer retains complete discretion to set the time
and place of the hearing, including the amount of time allotted for the
hearing, considering the issues to be resolved. At the discretion of
the reviewer, the hearing may be conducted by telephone 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 Sec. 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.


Sec. 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 Sec. 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.

[[Page 28973]]

Sec. 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 <strong>filed</strong>, 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
Secs. 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 Sec. 30.319 has been <strong>filed</strong>.
    (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.


Sec. 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.


Sec. 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.


Sec. 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 Sec. 30.316(d).

Modification


Sec. 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


Sec. 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 <strong>filed</strong> a
claim for benefits under the EEOICPA (see Sec. 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 cost-effectiveness to appliances and
supplies. With respect to prescribed medications, OWCP may require the
use of generic equivalents where they are available.


Sec. 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.

[[Page 28974]]

    (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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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


Sec. 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.


Sec. 30.411  What happens if the opinion of the physician selected by
OWCP differs from the opinion of the physician selected by the
employee?

    (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.


Sec. 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


Sec. 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.


Sec. 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.

[[Page 28975]]

Sec. 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


Sec. 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 Sec. 30.702.


Sec. 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.


Sec. 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 Sec. 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


Sec. 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 Sec. 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 Sec. 30.501).


Sec. 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 Sec. 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,
one-half to the widow or widower and one-half 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.


Sec. 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


Sec. 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 <strong>filed</strong> 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 Sec. 30.617 of
these regulations.

[[Page 28976]]

    (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 lump-sum 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.


Sec. 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.


Sec. 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


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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


Sec. 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 Sec. 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

[[Page 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.


Sec. 30.601  Who may serve as a representative?

    A claimant may authorize any individual to represent him or her in
regard to a claim under 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.


Sec. 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


Sec. 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.


Sec. 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 <strong>filed</strong> 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 <strong>filed</strong> 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 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


Sec. 30.615  Can a claimant receive benefits under the EEOICPA if he or
she <strong>filed</strong> a tort suit against either a beryllium vendor or an atomic
weapons employer on or prior to October 30, 2000?

    A claimant who <strong>filed</strong> 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.


Sec. 30.616  Can a claimant receive benefits under the EEOICPA if he or
she <strong>filed</strong> a tort suit against either a beryllium vendor or an atomic
weapons employer after October 30, 2000?

    (a) Unless a tort suit <strong>filed</strong> 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,

[[Page 28978]]

2000, such a suit must be <strong>filed</strong> 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.


Sec. 30.617  How will OWCP ascertain whether a claimant <strong>filed</strong> 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 Sec. 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 <strong>filed</strong> 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


Sec. 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.


Sec. 30.701  How are medical bills to be submitted?

    (a) All charges for medical and surgical treatment, appliances or
supplies furnished to employees, except for treatment and supplies
provided by nursing homes, shall be supported by medical evidence as
provided in Sec. 30.700. 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.


Sec. 30.702  How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss of
wages, and incidental expenses?

    (a) If an employee has paid bills for medical, surgical or other
services, supplies or appliances 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
Sec. 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
Sec. 30.701(a). Any request for reimbursement must be accompanied by
evidence, as described

[[Page 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
Sec. 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 Sec. 30.712.
    (f) If the provider fails to make appropriate refund to the
employee, or to credit the employee's account, within 60 days after the
employee requests a refund of any excess amount, or the date of a
subsequent reconsideration decision which continues to disallow all or
a portion of the appealed amount, OWCP will initiate exclusion
procedures as provided by Sec. 30.715.
    (g) If the provider does not refund to the employee or credit to
his or her account the amount of money paid in excess of the 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.


Sec. 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


Sec. 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.


Sec. 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.


Sec. 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)]  x  $61.20
[2.45 + 3.44 + .56]  x  $61.20
6.45  x  $61.20 = $394.74


Sec. 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.


Sec. 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

[[Page 28980]]

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.


Sec. 30.710  How are payments for inpatient medical services
determined?

    (a) OWCP will pay for inpatient medical services according to pre-
determined, condition-specific rates based on the 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 pre-determined hospital rates at least
once a year, and may adjust any or all components when OWCP deems it
necessary or appropriate.
    (b) OWCP shall review the schedule of fees at least once a year,
and may adjust the schedule or any of its components when OWCP deems it
necessary or appropriate.


Sec. 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.


Sec. 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 <A HREF="http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.dol.gov/dol/esa/public/owcp_org.htm">www.dol.gov/dol/esa/public/
owcp_org.htm</A>. 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 <strong>filed</strong> 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.


Sec. 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 Sec. 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 Sec. 30.715(h).

Exclusion of Providers


Sec. 30.715  What are the grounds for excluding a provider from payment
under this part?

    A physician, hospital, or provider of medical services or supplies
shall be excluded from payment under this part if such physician,
hospital or provider has:
    (a) Been convicted under any criminal statute of fraudulent
activities in connection with any federal or state program for which
payments are made to providers for similar medical, surgical or
hospital services, appliances or supplies;
    (b) Been excluded or suspended, or has resigned in lieu of
exclusion or suspension, from participation in any federal or state
program referred to in paragraph (a) of this section;
    (c) Knowingly made, or caused to be made, any false statement or
misrepresentation of a material fact in connection with a determination
of the right to reimbursement under this part, or in connection with a
request for payment;

[[Page 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 Sec. 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.


Sec. 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 Sec. 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 Sec. 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.


Sec. 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
Sec. 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.


Sec. 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 Sec. 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.


Sec. 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 Sec. 30.720. The filing of a
request for a hearing within the time specified shall stay the
effectiveness of the decision to exclude.


Sec. 30.720  How can an excluded provider request a hearing?

    A request for a hearing shall be sent to the official
representative named under Sec. 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.


Sec. 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.

[[Page 28982]]

    (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.


Sec. 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.


Sec. 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.


Sec. 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 <strong>filed</strong> 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 <strong>filed</strong>, 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.


Sec. 30.725  What are the effects of non-automatic exclusion?

    (a) OWCP shall give notice of the exclusion of a physician,
hospital or provider of medical services or supplies to:
    (1) All OWCP district offices;
    (2) 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.


Sec. 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 Sec. 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

[[Page 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

[[Page 28984]]

Appendix I.--Forms EE-1, EE-2, EE-3, EE-4, EE-7, EE/EN-15, EE/EN-20
and EE-915.
[GRAPHIC] [TIFF OMITTED] TR25MY01.000


[[Page 28985]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.001


[[Page 28986]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.002


[[Page 28987]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.003


[[Page 28988]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.004


[[Page 28989]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.005


[[Page 28990]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.006


[[Page 28991]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.007


[[Page 28992]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.008


[[Page 28993]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.009


[[Page 28994]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.010


[[Page 28995]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.011


[[Page 28996]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.012


[[Page 28997]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.013


[[Page 28998]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.014


[[Page 28999]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.015


[[Page 29000]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.016


[[Page 29001]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.017


[[Page 29002]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.018


[[Page 29003]]


[GRAPHIC] [TIFF OMITTED] TR25MY01.019

[FR Doc. 01-13113 Filed 5-24-01; 8:45 am]
BILLING CODE 4510-CH-C