Claims for Compensation Under the Energy Employees Occupational Illness Compensation Program Act, 72295-72318 [2015-27121]

Agencies

• DEPARTMENT OF LABOR
• Office of Workers' Compensation Programs

[Federal Register Volume 80, Number 222 (Wednesday, November 18, 2015)]
[Proposed Rules]
[Pages 72295-72318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27121]



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Vol. 80

Wednesday,

No. 222

November 18, 2015

Part IV





Department of Labor





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Office of Workers' Compensation Programs





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20 CFR Part 30





Claims for Compensation Under the Energy Employees Occupational Illness 
Compensation Program Act; Proposed Rules

Federal Register / Vol. 80 , No. 222 / Wednesday, November 18, 2015 / 
Proposed Rules

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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Part 30

RIN 1240-AA08


Claims for Compensation Under the Energy Employees Occupational 
Illness Compensation Program Act

AGENCY: Office of Workers' Compensation Programs, Department of Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document contains the changes to the regulations 
governing the administration of the Energy Employees Occupational 
Illness Compensation Program Act of 2000, as amended (EEOICPA or Act), 
being proposed by the Department of Labor (Department or DOL). Part B 
of the Act provides uniform lump-sum payments and medical benefits to 
covered employees and, where applicable, to survivors of such 
employees, of the Department of Energy (DOE), its predecessor agencies 
and certain of its vendors, contractors and subcontractors. Part B of 
the Act also provides smaller uniform lump-sum payments and medical 
benefits to individuals found eligible by the Department of Justice 
(DOJ) for benefits under section 5 of the Radiation Exposure 
Compensation Act (RECA) and, where applicable, to their survivors. Part 
E of the Act provides variable lump-sum payments (based on a worker's 
permanent impairment and/or qualifying calendar years of established 
wage-loss) and medical benefits for covered DOE contractor employees 
and, where applicable, provides variable lump-sum payments to survivors 
of such employees (based on a worker's death due to a covered illness 
and any qualifying calendar years of established wage-loss). Part E of 
the Act also provides these same payments and benefits to uranium 
miners, millers and ore transporters covered by section 5 of RECA and, 
where applicable, to survivors of such employees. The Office of 
Workers' Compensation Programs (OWCP) administers the adjudication of 
claims and the payment of benefits under EEOICPA, with National 
Institute for Occupational Safety and Health (NIOSH) within the 
Department of Health and Human Services (HHS) estimating the amounts of 
radiation received by employees alleged to have sustained cancer as a 
result of such exposure and establishing guidelines to be followed by 
OWCP in determining whether such cancers are at least as likely as not 
related to employment. Both DOE and DOJ are responsible for notifying 
potential claimants and for submitting evidence necessary for OWCP's 
adjudication of claims under EEOICPA.

DATES: Comments on the regulations in this proposed rule must be 
submitted on or before January 19, 2016. Written comments on the 
information collection requirements in this proposed rule must be 
received on or before December 18, 2015.

ADDRESSES: You may submit comments on the regulations in this proposed 
rule, identified by Regulatory Information Number (RIN) 1240-AA08, by 
any ONE of the following methods:
    Federal e-Rulemaking Portal: The Internet address to submit 
comments on the regulations in the proposed rule is 
www.regulations.gov. Follow the Web site instructions for submitting 
comments. Comments will also be available for public inspection on the 
Web site.
    Mail or Hand Delivery: Submit written comments to Rachel P. Leiton, 
Director, Division of Energy Employees Occupational Illness 
Compensation, Office of Workers' Compensation Programs, U.S. Department 
of Labor, Room C-3321, 200 Constitution Avenue NW., Washington, DC 
20210. The Department will only consider mailed comments that have been 
postmarked by the U.S. Postal Service or other delivery service on or 
before the deadline for comments.
    Instructions: All comments must cite RIN 1240-AA08 that has been 
assigned to this rulemaking. Receipt of any comments, whether by 
Internet, mail or hand delivery, will not be acknowledged. Because the 
Department continues to experience significant delays in receiving 
postal mail in the Washington, DC area, commenters are encouraged to 
submit any mailed comments early.
    In addition to having an opportunity to file comments on the 
regulations in this proposed rule, interested parties may file comments 
on the information collection requirements in this proposed rule with 
the Office of Management and Budget by mail, at Office of Information 
and Regulatory Affairs, Attn: OMB Desk Officer for DOL-OWCP, Office of 
Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 
20503; by Fax: 202-395-5806 (this is not a toll-free number); or by 
email: OIRA_submission@omb.eop.gov. Commenters are encouraged, but not 
required, to send a courtesy copy of their comments to the Department 
by mail to Vincent Alvarez, U.S. Department of Labor, 200 Constitution 
Avenue NW., Room S-3201, Washington, DC 20210; by Fax to 202-693-1447; 
or by email to alvarez.vincent@dol.gov. In order to help ensure 
appropriate consideration, comments should mention at least one of the 
OMB control numbers mentioned in this preamble.

FOR FURTHER INFORMATION CONTACT: Rachel P. Leiton, Director, Division 
of Energy Employees Occupational Illness Compensation, Office of 
Workers' Compensation Programs, U.S. Department of Labor, Room C-3321, 
200 Constitution Avenue NW., Washington, DC 20210, Telephone: 202-693-
0081 (this is not a toll-free number).
    Individuals with hearing or speech impairments may access this 
telephone number via TTY by calling the toll-free Federal Information 
Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    The Energy Employees Occupational Illness Compensation Program Act 
of 2000, as amended (EEOICPA or Act), 42 U.S.C. 7384 et seq., was 
originally enacted on October 30, 2000. The initial version of EEOICPA 
established a compensation program (known as Part B of the Act) to 
provide a uniform lump-sum payment of $150,000 and medical benefits as 
compensation to covered employees who had sustained designated 
illnesses due to their exposure to radiation, beryllium or silica while 
in the performance of duty for DOE and certain of its vendors, 
contractors and subcontractors. Part B of the Act also provides for 
payment of compensation to certain survivors of these covered 
employees, and for payment of a smaller uniform lump-sum ($50,000) to 
individuals (who would also receive medical benefits), or their 
survivors, who were determined to be eligible for compensation under 
section 5 of the Radiation Exposure Compensation Act (RECA), 42 U.S.C. 
2210 note, by DOJ. Primary responsibility for the administration of 
Part B of the Act was assigned to DOL by Executive Order 13179 
(``Providing Compensation to America's Nuclear Weapons Workers'') of 
December 7, 2000 (65 FR 77487). On May 25, 2001, the Department issued 
interim final regulations (66 FR 28948) governing its administration of 
Part B of the Act, and issued final regulations on December 26, 2002 
(67 FR 78874) that went into effect on February 24, 2003.
    The initial version of EEOICPA also created a second program (known 
as

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Part D of the Act) that required DOE to establish a system by which DOE 
contractor employees (and their eligible survivors) could seek 
assistance from DOE in obtaining state workers' compensation benefits 
if a Physicians Panel determined that the employee in question had 
sustained a covered illness as a result of work-related exposure to a 
toxic substance at a DOE facility. A positive panel finding that was 
accepted by DOE required DOE, to the extent permitted by law, to order 
its contractor not to contest the claim for state workers' compensation 
benefits. However, Congress amended EEOICPA in Subtitle E of Title XXXI 
of the Ronald W. Reagan National Defense Authorization Act for Fiscal 
Year 2005, Public Law 108-375, 118 Stat. 1811, 2178 (October 28, 2004), 
by abolishing Part D of the Act and creating a new Part E (codified at 
42 U.S.C. 7385s through 7385s-15) that it assigned to DOL for 
administration. Part E established a new system of variable federal 
payments for DOE contractor employees, uranium workers covered by 
section 5 of RECA, and eligible survivors of such employees. On June 8, 
2005, the Department issued interim final regulations (70 FR 33590) 
governing its administration of Part E of the Act, and issued final 
regulations on December 29, 2006 (71 FR 78520) that went into effect on 
February 27, 2007.

II. Discussion of Proposed Changes to the Regulations

A. Stakeholder Engagement

    As part of the development of the proposed rule, the Department 
hosted a telephonic listening session during which interested parties 
provided their views, ideas and concerns to Departmental leadership on 
the provisions of the existing regulations. The Department found the 
listening session to be helpful and considered relevant information 
raised during the session in developing the proposed regulations.

B. Overview of the Proposed Rule

    The Department is proposing to amend certain of the existing 
regulations governing its administration of Parts B and E of EEOICPA to 
conform them to current administrative practice, based on its 
experience administering the Act since 2001, and to bring further 
clarity to the regulatory description of the claims adjudication 
process, and to improve the administration of the Act. The following 
discussion describes the proposed changes to the existing regulations 
that currently appear in 20 CFR part 30. Since some of these proposed 
changes involve moving existing text to new sections, please refer to 
those new sections when submitting comments on the proposed changes.
Subpart A--General Provisions
    The proposed changes to the regulations in this subpart involve 
updating the language used in certain regulations in the introduction 
portion of subpart A, and both expanding upon existing definitional 
regulations and adding new definitions that memorialize programmatic 
determinations.

Introduction

    The Department proposes to modify Sec.  30.1 to update the 
Secretary's Order reference and delete the reference to the Assistant 
Secretary for Employment Standards, since that position, as well as the 
Employment Standards Administration, no longer exists. The proposed 
change to Sec.  30.2 memorializes that HHS delegated its dose 
reconstruction responsibilities to NIOSH in 42 CFR 82.1. Consistent 
with this proposed change, the Department proposes to modify several 
other sections of the regulations, not otherwise discussed specifically 
below, to replace references to ``HHS'' in those sections with 
``NIOSH.''

Definitions

    The Department proposes to remove the language in the definition of 
a beryllium vendor in Sec.  30.5(i) that references DOE's periodically 
published list of beryllium vendors in the Federal Register, since DOE 
no longer updates that list, and replace it with a reference to the 
final list of beryllium vendors that DOE published in the Federal 
Register on December 27, 2002. Based on the language of sections 
7384l(7)(A) and 7384n(a)(2) of EEOICPA, the Department seeks to define 
a beryllium vendor facility in proposed Sec.  30.5(j) as ``a facility 
owned and operated by a beryllium vendor.'' Proposed Sec.  30.5(k) 
replaces the term ``medical doctor'' with ``licensed physician.''
    The Department also proposes to update the existing definition of 
the Department of Energy or DOE in proposed Sec.  30.5(w) to clarify 
that DOE's predecessor agencies date back to August 13, 1942, which is 
the date that the Manhattan Engineer District was established. In 
proposed Sec.  30.5(x)(2)(iii), the Department adds language to bring 
this provision in line with programmatic policy, which states that a 
civilian employee of a state or federal government agency qualifies as 
a Department of Energy contractor employee if the agency employing that 
individual is found to have entered into a contract with DOE for the 
provision of one or more services it was not statutorily obligated to 
perform and DOE compensated the agency for those services, and also 
that the delivery or removal of goods from the premises of a DOE 
facility does not constitute a service for the purposes of determining 
a worker's coverage under the Act. Proposed Sec.  30.5(ee) removes an 
ambiguity in the statute by more clearly defining the term physician, 
while proposed Sec.  30.5(gg) simplifies the definition of a specified 
cancer by deleting the unnecessary references to ``RECA'' and 
``EEOICPA.''
    Further, the Department proposes to expand upon the existing 
definition of time of injury in new Sec.  30.5(ii) by adding text 
explaining that the time of injury in a survivor's claim is the date of 
the employee's death. Finally, the Department proposes to add a 
definition for time of payment or payment in proposed Sec.  30.5(jj) to 
define those terms as the date that a paper check issued by the 
Department of the Treasury is received by the payee or by someone who 
was legally able to act for the payee, or the date the Department of 
the Treasury made an Electronic Funds Transfer to the payee's financial 
institution.
Subpart B--Filing Claims; Evidence and Burden of Proof; Special 
Procedures for Certain Cancer Claims
    The Department proposes revisions to subpart B, including changes 
in Sec. Sec.  30.100 and 30.101 to require claimants to sign their own 
written claims, and in Sec. Sec.  30.112 and 30.113 to codify the 
Department's current policy for evaluating affidavits and statements 
submitted by claimants as proof of an employee's work history or 
medical condition. In addition, the Department proposes other revisions 
that are described below, which update references and language used in 
the regulations that have changed since these regulations were last 
revised.

Filing Claims for Benefits Under EEOICPA

    The Department proposes to amend Sec.  30.100 to remove language in 
paragraphs (a) and (c)(1) allowing someone other than the employee to 
sign a written claim with the Department on the employee's behalf, and 
instead require that the employee sign his or her own claim. The same 
amendments are proposed in paragraphs (a) and (d)(1) in Sec.  30.101 to 
require survivors to sign their own written claims. The Department 
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this requirement will improve its communications with claimants. Also 
in Sec. Sec.  30.100 and 30.101, the Department seeks to add the words 
``or other carrier's date marking'' to the current language ``by 
postmark'' to reflect changes in delivery options, and to make that 
same change in several other sections of the regulations not otherwise 
discussed specifically below. In Sec.  30.102(a), the Department 
proposes to remove the superfluous term ``minimum impairment rating'' 
and replace it with ``impairment rating.'' The term ``minimum 
impairment rating'' is an artifact left over from an early draft of 
what later was enacted as Part E of EEOICPA and has no intrinsic 
meaning in the scheme that Congress eventually passed. Due to the level 
of confusion its retention by Congress has caused, coupled with the 
fact that it serves no actual purpose because there is no ``minimum'' 
rating that is presumed, the Department seeks to remove that word when 
describing an employee's impairment rating.

Evidence and Burden of Proof

    Proposed Sec.  30.110 updates cross-references in that section. The 
Department proposes to amend Sec. Sec.  30.112(b)(3) and 30.113(c) to 
remove the term ``self-serving'' when referring to affidavits and 
documents submitted to establish either covered employment or a covered 
medical condition. In its place, the proposed language codifies the 
program's practice of evaluating all employment and medical evidence in 
a claim when it decides if the claimant has met his or her burden of 
proof under Sec.  30.111. The Department also proposes to amend Sec.  
30.114(b) to clarify that current paragraphs (b)(1) and (b)(2) pertain 
to Part B, and to add paragraph (b)(3) to provide that additional 
medical evidence, as described in other sections of the regulations, is 
required to establish claims for benefits under Part E.

Special Procedures for Certain Radiogenic Cancer Claims

    Proposed Sec.  30.115(a) deletes reference to HHS's regulation at 
42 CFR 81.30, since HHS published a final rule in the Federal Register 
on February 6, 2012 to remove 42 CFR 81.30 from part 81. The proposed 
change to Sec.  30.115(a)(2) deletes language stating that HHS may 
complete further development of the employee's work history and that it 
will provide DOE with a copy of the final dose reconstruction report 
for an employee, since HHS does not perform either of these actions.
Subpart C--Eligibility Criteria
    The proposed changes in subpart C involve revising the existing 
regulations to better explain how the Department evaluates medical 
evidence submitted to establish a claim for chronic beryllium disease 
under Part B, and to provide the Department's current requirements for 
establishing work-related toxic exposure and a covered illness under 
Part E. In addition to those changes, the Department proposes minor 
updates to the language in this subpart, as explained below.

Eligibility Criteria for Claims Relating to Covered Beryllium Illness 
Under Part B of EEOICPA

    Proposed Sec.  30.205 updates cross-references in that section. The 
Department further proposes to amend Sec.  30.206(a) to remove the 
language ``a facility owned, operated, or occupied by a beryllium 
vendor'' and to instead reference proposed Sec.  30.5(j), which defines 
a beryllium vendor facility. Also, the Department proposes to add 
paragraph (d) in Sec.  30.207 to memorialize its current practices for 
determining whether to evaluate an employee's medical evidence under 
either the pre- or post-1993 criteria outlined in section 7384l(13) of 
EEOICPA.

Eligibility Criteria for Claims Relating to Radiogenic Cancer Under 
Parts B and E of EEOICPA

    Proposed Sec. Sec.  30.210 and 30.211 update the cross-references 
in that section. Also, the proposed change in Sec.  30.213(a) replaces 
the language ``the employee's radiation dose reconstruction'' with 
``the employee's final dose reconstruction report.''

Eligibility Criteria for Claims Relating to Chronic Silicosis Under 
Part B of EEOICPA

    Proposed Sec.  30.220 updates the cross-references in that section. 
Proposed Sec.  30.222 also updates the cross-reference in that section, 
and replaces the term ``medical doctor'' with ``licensed physician.''

Eligibility Criteria for Other Claims Under Part E of EEOICPA

    Proposed Sec.  30.230 updates the cross-references in that section. 
In addition, the Department proposes to amend Sec.  30.231(a) to 
explain its current practice of evaluating affidavit evidence submitted 
by a claimant as proof of employment in conjunction with all evidence 
of employment to determine if the claimant has met his or her burden of 
proof under Sec.  30.111. Proposed Sec.  30.231(b) describes sources, 
in addition to the Site Exposure Matrices that are currently listed in 
that paragraph, that the Department considers to be reliable sources of 
information to establish whether an employee was exposed to a toxic 
substance at a DOE facility or a RECA section 5 facility. Proposed 
Sec.  30.232(a) deletes the former Part D requirements for establishing 
a covered illness, as Congress abolished Part D and those requirements 
are now irrelevant. In its place, the Department seeks to add language 
to describe its current requirements for establishing a covered illness 
under Part E. Proposed Sec.  30.232(b) updates the cross-reference in 
that paragraph.
Subpart D--Adjudicatory Process
    The Department proposes to update the regulations in subpart D with 
policies that it has developed and followed since the last time these 
regulations were updated, and to increase both clarity and transparency 
in the claim adjudication process for radiogenic cancer claims filed 
under Part B of EEOICPA.

General Provisions

    In Sec.  30.300, the Department proposes to add language to explain 
that a claimant may seek judicial review of a final decision issued by 
FAB by filing an action in federal district court, since the current 
regulations do not provide this explanation.

Recommended Decisions on Claims

    The Department proposes to modify Sec.  30.306 to make recommended 
decisions more understandable by mandating that they include a 
narrative discussion of the district office's findings of fact and 
conclusions of law. The Department also proposes to move the provisions 
in current Sec.  30.307 to Sec.  30.308. Proposed Sec.  30.307(a) 
describes the Department's longstanding general policy of issuing a 
single recommended decision to all of the survivors who filed claims 
under Part B and/or Part E of EEOICPA relating to the same deceased 
employee. Proposed Sec.  30.307(b) explains the exception to the 
policy, which is that if another individual subsequently files a 
survivor claim for the same award referenced in proposed Sec.  
30.307(a), the recommended decision on that claim will not address the 
entitlement of the earlier claimants if the district office recommended 
that the later survivor claim be denied. No changes were made to the 
language in proposed Sec.  30.308.

Hearings and Final Decisions on Claims

    The Department proposes amending Sec.  30.314(a), which currently 
provides a

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FAB reviewer with the discretion to conduct hearings by telephone or 
teleconference, to also allow the FAB reviewer to conduct hearings by 
videoconference or other electronic means. Proposed Sec.  30.314(b) 
includes new language to provide the FAB reviewer with the discretion 
to mail a hearing notice less than 30 days prior to the hearing if the 
claimant and/or representative waives the 30-day notice period in 
writing. The Department believes this will provide FAB with more 
flexibility when it comes to scheduling oral hearings. Proposed Sec.  
30.315(a) adds a provision that prohibits a claimant or representative 
from making more than one request to reschedule a hearing, since 
repeated requests to cancel and reschedule hearings have resulted in an 
undue burden on the claim adjudication process.
    Since the beginning of OWCP's administration of Part B of EEOICPA, 
FAB reviewers have struggled with their regulatory obligation in 
existing Sec.  30.318 to consider objections to final dose 
reconstruction reports that have been prepared by NIOSH during its 
portion of the adjudication process for radiogenic cancer claims. 
Currently, a FAB reviewer must decide if an objection to a final dose 
reconstruction report concerns the ``methodology'' that NIOSH used to 
calculate the estimated doses in the report, which cannot be considered 
by the FAB reviewer because it is binding on FAB, or if the objection 
concerns the ``application'' of that methodology to the individual 
facts of the claim, in which case it can be considered by the FAB 
reviewer. Because it can be difficult to understand the differences 
between these two possibilities, FAB reviewers have had varying levels 
of success in making these distinctions. This experience has also been 
frustrating for claimants, and has convinced the Department that FAB 
reviewers are ill-suited to address objections that concern matters 
within the particular scientific expertise of NIOSH.
    As part of its dose reconstruction process described in 42 CFR part 
82, NIOSH confers with claimants prior to finalizing a dose 
reconstruction report; however, information regarding those discussions 
is not always included in the final dose reconstruction report. NIOSH 
has agreed to include information regarding how it considered and 
addressed claimant concerns in the final dose reconstruction report it 
sends to OWCP, and has also agreed to make personnel available to help 
FAB reviewers address any objections raised while the claim is pending 
before FAB. Therefore, the Department proposes to modify Sec.  
30.318(a) to describe the potential for NIOSH to be more explicitly 
involved in FAB's consideration of objections to final dose 
reconstruction reports. By making these changes, the Department will be 
doing away with the current limitation on the scope of objections that 
can be raised before FAB. The Department also proposes to clarify its 
obligation to consider objections to how OWCP calculates the 
probability of causation in new Sec.  30.318(b). All of the proposed 
changes to current Sec.  30.318 are being proposed in an effort to be 
responsive to concerns expressed by claimants.
    Lastly, the Department proposes to change Sec. Sec.  30.310(b) and 
30.319(b) to reflect recent changes in how the program receives and 
processes mail.

Reopening Claims

    Proposed Sec.  30.320(b)(2) allows claimants to request a reopening 
based on new medical evidence diagnosing a medical condition. The 
Department believes that this will afford claimants a greater 
opportunity to obtain additional review of their denied claim based on 
new medical evidence.
Subpart E--Medical and Related Benefits
    The changes to subpart E consist of clarifying the Department's 
policies regarding paying for the treatment of covered medical 
conditions. Also in subpart E, the Department seeks to make changes 
relating to its payment for non-physician services, and to its ability 
to administratively close claims when an employee refuses to attend 
directed medical examinations. Other minor proposed changes are 
discussed below.

Medical Treatment and Related Issues

    The Department proposes to move language in current Sec.  30.400(a) 
to proposed new Sec.  30.400(d) in order to bring attention to its 
longstanding policy regarding the payment of certain medical benefits 
to survivors. The Department also proposes to make a number of changes 
to Sec.  30.400(c). First, the Department proposes to add new language 
in this paragraph to explain the current qualifications that must be 
met before hospitals and providers of medical services or supplies may 
furnish appropriate services, drugs, supplies and appliances to covered 
employees. In addition, the Department proposes to add authority for it 
to offset the cost of prior rental payments against the future purchase 
of an appliance or supply, and to provide refurbished equipment where 
appropriate. Further, the Department is adding language recognizing its 
existing authority to pay for durable medical equipment and 
modifications to a home or vehicle that it deems necessary and 
reasonable. Lastly, the Department seeks to codify its authority to 
contract with specific providers to provide non-physician services and 
appliances. The Department believes that providing such services in 
this manner may aid in delivering some types of benefits.
    The Department proposes to reorganize Sec.  30.403 into three 
separate paragraphs, and to better focus the section on its payment of 
claims under section 7384t of EEOICPA for home health care, nursing 
home, and assisted living services, which comprise the bulk of services 
of this type being provided. Proposed Sec.  30.403(a) incorporates the 
descriptive text in current Sec.  30.403 with minor modifications, and 
proposed Sec.  30.403(b) describes OWCP's general requirements for 
payment of a claim for nursing home and assisted living services. 
Furthermore, proposed paragraph (c) in Sec.  30.403 sets out the 
particular pre-authorization process used to file an initial claim 
under section 7384t of EEOICPA for home health care, nursing home, and 
assisted living services. The proposed changes to paragraph (c) in 
Sec.  30.405 clarify the Department's policy for approving or denying 
an employee's request to change treating physicians.

Directed Medical Examinations

    The Department proposes to amend Sec. Sec.  30.410(c) and 30.411(d) 
to memorialize the Department's existing authority to administratively 
close an employee's claim when he or she refuses to attend a second 
opinion examination or a referee medical examination, respectively.

Medical Reports

    Proposed Sec.  30.416(a) removes language that a physician's stamp 
will be accepted in lieu of his or her signature on such a report, and 
specifies that the physician's handwritten or electronic signature 
should be on his or her medical report.
Subpart F--Survivors; Payments and Offsets; Overpayments
    The proposed changes to the regulations in this subpart involve 
memorializing the Department's policy determinations relating to the 
definition of a ``child'' under Parts B and E, and the eligibility 
requirements for a ``covered child'' under Part E.

Survivors

    The Department proposes to amend the first sentence in Sec.  
30.500(a)(2) to

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provide the Department's policy determination that a ``child'' under 
Parts B and E of EEOICPA means only a biological child, a stepchild or 
an adopted child of a deceased covered Part B or Part E employee. Also, 
the Department proposes to move the statutory definition of a ``covered 
child'' currently stated in the second sentence of Sec.  30.500(a)(2) 
to its own new paragraph in proposed Sec.  30.500(c). Proposed Sec.  
30.500(c) further provides that a child's marital status or dependency 
on the covered employee for support is irrelevant to his or her 
eligibility for benefits as a covered child under Part E, and that 
incapable of self-support means that the child must have been 
physically and/or mentally incapable of self-support at the time of the 
covered employee's death. The above new language codifies the 
Department's current policy and case law. See Watson v. Solis, 693 F.3d 
620 (6th Cir. 2012). Finally, proposed Sec. Sec.  30.501 and 30.502 
update the cross-references in those sections.
Subpart G--Special Provisions
    The Department proposes to modify Sec.  30.600 to clearly state 
that a representative does not have the authority to sign either Form 
EE-1 or Form EE-2, to be consistent with proposed Sec. Sec.  30.100 and 
30.101. Proposed Sec.  30.601 adds language to provide that a 
representative must comply with the Department's conflict of interest 
policy. Proposed Sec.  30.603 clarifies that a representative may 
charge a claimant for costs and expenses related to a claim in addition 
to the fee limitations specified in Sec.  30.603(b).
Subpart H--Information for Medical Providers
    The majority of changes in this subpart update the regulations to 
take into account the Department's electronic bill processing and 
authorization system. In addition, the Department seeks to modify the 
method by which it excludes medical providers so that the Department of 
Labor's Office of Inspector General (DOL OIG) is involved in that 
process.

Medical Records and Bills

    The Department proposes to amend Sec.  30.700 to describe, for the 
first time, its provider enrollment process and automated bill 
processing and authorization system. Proposed Sec.  30.701(a) 
recognizes that the Department may withhold payment for services until 
the required medical evidence described in Sec.  30.700 is provided, 
and clarifies that charges for medicinal drugs dispensed in a 
physician's office must be reported on Form OWCP-1500 or CMS-1500.
    Proposed Sec.  30.701(b) describes the Department's existing 
discretion to determine which codes to use in the billing process, and 
to create and supply specific codes to be used by providers. Proposed 
Sec.  30.701(c)(1) clarifies the Department's current billing 
procedures for providers to follow when submitting charges, and alerts 
providers that the Department may adopt the Home Health Prospective 
Payment System, which was devised by the Centers for Medicare and 
Medicaid Services (CMS) within HHS. Proposed Sec.  30.701(d) makes 
clear that providers must adhere to accepted industry standards when 
billing, and that billing practices such as upcoding and unbundling are 
not in accord with those industry standards. Proposed Sec.  30.701(e) 
describes the Department's current practice of rejecting a bill that 
does not conform to the requirements in Sec.  30.701, after which the 
rejected bill is returned to the provider to be corrected and 
resubmitted. Proposed Sec.  30.701(e) also makes clear the Department's 
policy that a bill must contain the provider's handwritten or 
electronic signature when required by the pertinent billing form, and 
removes language that a provider's stamp will be accepted in lieu of 
his or her signature on the bill.
    The changes to Sec.  30.702 clarify how an employee currently seeks 
reimbursement for out-of-pocket expenses. Proposed Sec.  30.702(a) adds 
a reference to Forms OWCP-04 and UB-04 to clarify that those forms are 
required for reimbursement of hospital charges. In addition, proposed 
paragraph (a)(1) in Sec.  30.702 provides that the Department will 
reject a reimbursement request if a provider does not indicate the code 
or a description of the service, so that the employee can correct and 
resubmit the required information. The Department proposes to amend 
Sec.  30.702(d), which currently provides that the Department's 
decision regarding reimbursement to an employee for out-of-pocket 
expenses is final, and to instead provide that the Department will 
issue a letter decision in such circumstances. A claimant who disagrees 
with the letter decision may request a formal recommended decision and 
utilize the adjudicatory process described in subpart D. Lastly, the 
Department seeks to add paragraph (h) to Sec.  30.702 to require that 
an employee submit Form OWCP-957, along with proof of payment, with a 
request for reimbursement for the costs and expenses specified.

Medical Fee Schedule

    The Department proposes to modify Sec.  30.705 to provide that it 
may require nursing homes to abide by a fee schedule, and also proposes 
to update the indices used to determine maximum fees in Sec. Sec.  
30.706 and 30.707. The Department proposes to modify the introductory 
text in Sec.  30.709 to provide the Department with the authority to 
contract for, or require the use of, specific providers for medicinal 
drugs, and proposed Sec.  30.709(a) clarifies that the fee schedule for 
medicinal drugs applies whether the drugs are dispensed by a pharmacy 
or by a doctor in his office. Finally, proposed Sec.  30.709(c) 
codifies the Department's authority to require the use of generic 
drugs, where appropriate.
    Proposed Sec.  30.710 changes the terminology used in that section 
to refer to the ``Inpatient Prospective Payment System'' devised by 
CMS, instead of the obsolete ``Prospective Payment System.'' The 
Department also proposes to add new Sec.  30.711 to explain its current 
practice of paying hospitals for outpatient medical services according 
to Ambulatory Payment Classifications based on the Outpatient 
Prospective Payment System devised by CMS.
    To accommodate the proposed addition of new Sec.  30.711, existing 
Sec. Sec.  30.711, 30.712 and 30.713 appear below as Sec. Sec.  30.712, 
30.713 and 30.714. In addition, the Department proposes to change 
existing Sec.  30.711(a), which appears below as new Sec.  30.712(a), 
to clearly state that the Department will not correct procedure or 
diagnosis codes on submitted bills. Rather, those bills will be 
returned to the provider for correction because the responsibility for 
proper submission lies with the provider. The Department also proposes 
to amend existing Sec.  30.712(b), which appears below as Sec.  
30.713(b), to reflect the current process used by providers to 
challenge a reduction of a fee based on a fee schedule.

Exclusion of Providers

    The Department proposes to amend Sec.  30.715 by adding paragraphs 
(i) and (j), which set out additional, reasonable bases for excluding 
providers. In proposed Sec.  30.715(i), a provider may be excluded for 
failing to inform the Department of any change in their provider 
status, and in proposed Sec.  30.715(j), a provider may be excluded for 
engaging in conduct related to care found by the Department to be 
misleading, deceptive or unfair. Proposed Sec.  30.716(c) also adds 
language to clarify that a provider may voluntarily choose to be 
excluded

[[Page 72301]]

without undergoing the exclusion process. This clarification is meant 
to address situations where providers agree to be excluded when a 
provider may be faced with criminal charges. Most importantly, the 
Department proposes to amend Sec.  30.717 to provide that the DOL OIG 
will be primarily responsible for investigating all possible exclusions 
of providers. This function was previously handled by OWCP; however, 
OWCP has no investigatory arm and lacks resources to carry out this 
responsibility. The Department also proposes amending Sec. Sec.  30.718 
through 30.721 in order to permit the Director for Energy Employees 
Occupational Illness Compensation to specify the deciding official, as 
appropriate. Proposed Sec. Sec.  30.718 through 30.721 will recognize 
the new role of DOL OIG in this process.
    The Department proposes revising Sec. Sec.  30.723 through 30.724 
to modify the manner in which the administrative law judge's 
recommended decision on exclusion becomes final. Currently, the 
decision becomes final if no objection is filed, and the proposed 
change states that no recommended decision regarding exclusion will 
become final until the Director for Energy Employees Occupational 
Illness Compensation issues the decision in final form. Finally, the 
Department proposes to amend Sec.  30.725 to add language stating that 
it will notify the state or local authority responsible for licensing 
or certifying the excluded party of the exclusion, and also proposes 
revising Sec.  30.726 to correct outdated terminology.
Subpart I--Wage-Loss Determinations Under Part E of EEOICPA
    The proposed changes in this subpart involve both expanding upon 
existing definitional regulations and adding new definitions that 
memorialize programmatic determinations. Also, the Department proposes 
to reorganize existing Sec. Sec.  30.805 through 30.806, and to add 
proposed Sec.  30.807 in order to better describe the process it 
currently uses to evaluate evidence in a wage-loss claim.

General Provisions

    In addition to updating the cross-references in proposed Sec.  
30.800, the Department proposes to use months instead of quarters in 
the definition of average annual wage in Sec.  30.801(a), to conform 
with 42 U.S.C. 7385s-2(a)(2)(A)(ii) and its current practices. In 
proposed Sec.  30.801(c), the Department seeks to add a definition of 
the term month during which the employee was unemployed, and adjusts 
the constant dollars in the definition of a quarter during which the 
employee was unemployed to 2013 constant dollars in proposed Sec.  
30.801(e). Also, the Department proposes to define a trigger month in 
new Sec.  30.801(f), consistent with the statute, as the calendar month 
during which a covered Part E employee first experienced a loss of 
wages due to exposure to a toxic substance at a DOE facility or RECA 
section 5 facility. The Department proposes to move the definition of 
wages, which is currently referenced in the last sentence of Sec.  
30.805(a), to its own new paragraph in proposed Sec.  30.801(g), and to 
amend that definition to focus on earned income from regular 
employment, rather than just taxable income, and to provide examples of 
what the Department considers as wages for the purposes of this 
subpart.

Evidence of Wage-Loss

    Proposed Sec.  30.805(a) sets out in detail the criteria for 
establishing eligibility for wage-loss benefits under Part E. Proposed 
Sec.  30.805(b) explains that the Department may discontinue 
development of a covered Part E employee's request for wage-loss 
benefits at any point when the claimant is unable to meet his or her 
burden of proof to submit factual and/or medical evidence to establish 
the criteria specified in proposed Sec.  30.805(a). Proposed Sec.  
30.806 is substantially similar to current Sec.  30.805(b), except that 
it provides an explanation of what the Department considers to be 
``rationalized'' medical evidence, i.e., medical evidence based on a 
physician's fully explained and reasoned decision, which a covered Part 
E employee must submit in order to establish that the wage-loss at 
issue was causally related to the employee's covered illness.
    Additionally, proposed Sec.  30.806 memorializes the Department's 
policy and federal district court jurisprudence that wage-loss 
sustained due to something other than a covered illness is not 
compensable wage-loss under Part E of EEOICPA. See Trego v. U.S. Dep't 
of Labor, 681 F.Supp.2d 894 (E.D. Tenn. 2009). Proposed Sec.  30.807(a) 
is substantially similar to current Sec.  30.805(a), except to state 
that the Department may rely upon annual, as well as quarterly wage 
information, that has been reported to the Social Security 
Administration (SSA). The current provision refers to only quarterly 
wage information reported to SSA; however, employers also report wages 
on an annual basis to SSA. Also, as discussed above, the Department 
seeks to remove language defining ``wages'' in current Sec.  30.805(a) 
and place it in new Sec.  30.801(g). Proposed Sec.  30.807(b) is 
largely the same as current Sec.  30.806.

Determinations of Average Annual Wage and Percentages of Loss

    The Department proposes to revise Sec.  30.810 to state that it 
will calculate the average annual wage of a covered Part E employee 
using months instead of quarters, to be consistent with proposed Sec.  
30.801(a). Proposed Sec.  30.811(a) combines the text from paragraphs 
(a) and (b) in current Sec.  30.811, since the Department believes that 
the current language in those paragraphs is repetitive.
Subpart J--Impairment Benefits Under Part E of EEOICPA
    The Department proposes to revise subpart J to update obsolete 
terminology and clarify its requirements for impairment rating 
determinations. Also in subpart J, the Department proposes to include 
in the regulations its existing policy for reducing the amount of an 
impairment award that is subject to any required offset and/or 
coordination of benefits.

General Provisions

    Proposed Sec. Sec.  30.901 and 30.902 replace the term ``minimum 
impairment rating'' with ``impairment rating,'' since the earlier term 
has no meaning in the Act. The Department also proposes to add text in 
new Sec.  30.902(b) regarding its current policy of proportionately 
reducing an impairment award in circumstances when such award is 
payable based on a whole person impairment rating and at least one of 
the impairments is subject to a reduction under Sec. Sec.  30.505(b) 
and/or 30.626.

Medical Evidence of Impairment

    Proposed Sec.  30.908 also replaces the term ``minimum impairment 
rating'' with ``impairment rating,'' to be consistent with the changes 
in Sec. Sec.  30.102(a), 30.901 and 30.902.

III. Statutory Authority

    Section 7384d of EEOICPA provides general statutory authority, 
which E.O. 13179 allocates to the Secretary, to prescribe rules and 
regulations necessary for administration of Part B of the Act. Section 
7385s-10 provides the Secretary with the general statutory authority to 
administer Part E of the Act. Sections 7384t, 7384u and 7385s-8 provide 
the specific authority regarding medical treatment and care, including 
authority to determine the appropriateness of charges. The Federal 
Claims Collection Act of 1966, as amended (31 U.S.C. 3701 et seq.), 
authorizes imposition of interest charges

[[Page 72302]]

and collection of debts by withholding funds due the debtor.

IV. Executive Orders 12866 and 13563

    E.O. 12866 directs agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
distributive impacts, equity, and potential economic, environmental, 
public health and safety effects). E.O. 13563 is supplemental to and 
reaffirms the principles, structures, and definitions governing 
regulatory review as established in E.O. 12866.
    Section 3(f) of E.O. 12866 defines a ``significant regulatory 
action'' as an action that is likely to result in a rule that: (1) Has 
an annual effect of $100 million or more, or adversely affects in a 
material way a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities (also referred to as economically 
significant); (2) creates serious inconsistency or otherwise interferes 
with an action taken or planned by another agency; (3) materially 
alters the budgetary impacts of entitlement grants, user fees, or loan 
programs, or the rights and obligations of recipients thereof; or (4) 
raises novel legal or policy issues arising out of legal mandates, the 
Presidents priorities, or the principles set forth in E.O. 12866.
    The Department believes that the proposed rule is needed to update 
the existing regulations to reflect the program's current processes, 
and to incorporate the policy and procedural changes that have been 
implemented since the existing regulations were issued in 2006.
    The Department has considered the benefits and costs that would 
result from the proposed rule. As discussed in the Overview of the 
Proposed Rule below, proposed Sec.  30.318 will benefit claimants by 
providing better and more transparent responses to objections to final 
dose reconstruction reports provided by NIOSH in claims for radiogenic 
cancer, because NIOSH is the agency with scientific expertise in the 
relevant field. Proposed Sec. Sec.  30.700 through 30.726 will benefit 
private sector providers of medical services and supplies by clarifying 
and bringing the program's billing and exclusion regulations into 
conformance with the current practices of other benefit programs 
administered by OWCP. And finally, proposed Sec.  30.403 will benefit 
claimants by standardizing the current process for requesting pre-
authorization for in-home health care services and realigning that 
process to better serve the needs of the program's beneficiaries. The 
Department does not believe that any of the above significant policies 
in the proposed rule will result in increased or decreased 
administrative costs to either the program or the public, or any 
increase in benefits paid.
    This rule has been designated a ``significant regulatory action'' 
although not economically significant under section 3(f) of E.O. 12866. 
The rule is not economically significant because it will not have an 
annual effect on the economy of $100 million or more. Accordingly, the 
rule has been reviewed by the Office of Management and Budget.

V. Regulatory Flexibility Act

    This proposed rule has been reviewed in accordance with the 
Regulatory Flexibility Act of 1980, as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The 
Department has concluded that the rule does not involve regulatory and 
informational requirements regarding businesses, organizations, and 
governmental jurisdictions subject to the regulation.

VI. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its implementing regulations, 5 CFR part 1320, require that the 
Department consider the impact of paperwork and other information 
collection burdens imposed on the public. A Federal agency generally 
cannot conduct or sponsor a collection of information, and the public 
is generally not required to respond to an information collection, 
unless it is approved by OMB under the PRA and displays a currently 
valid OMB Control Number. In addition, notwithstanding any other 
provisions of law, no person shall generally be subject to penalty for 
failing to comply with a collection of information that does not 
display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.
    This notice of proposed rulemaking contains information collection 
requirements subject to the PRA. The information collection 
requirements set out in Sec. Sec.  30.700, 30.701 and 30.702 of this 
proposed rule, which relate to information required to be submitted by 
claimants and medical providers in connection with the processing of 
bills, were both submitted to and approved by OMB under the PRA, and 
the currently approved collections in OMB Control Nos. 1240-0007 
(expires January 31, 2016), 1240-0019 (expires January 31, 2016), 1240-
0021 (expires January 31, 2016), 1240-0044 (expires December 31, 2015) 
and 1240-0050 (expires January 31, 2016) were not affected by any of 
the substantive changes that have been made in this proposed rule.
    The information collection requirements in Sec. Sec.  30.100, 
30.101, 30.102, 30.103, 30.112, 30.113, 30.206, 30.207, 30.213, 30.222, 
30.231, 30.232 and 30.416 of this proposed rule were also previously 
submitted to and approved by OMB under the PRA, and were assigned OMB 
Control No. 1240-0002 (expires December 31, 2016). This second group of 
information collection requirements was also not affected by any of the 
substantive changes that have been made in this rule. However, this 
rule revises the currently approved collection in OMB Control No. 1240-
0002 by adding two new information collection requirements and by 
moving one existing information collection requirement; this revision 
of a currently approved collection will be submitted to OMB for review 
under the PRA on the date of publication of this rule. The new 
information collection requirements in this rule are in Sec. Sec.  
30.114 and 30.403 and relate to information required to be submitted by 
or on behalf of claimants as part of the EEOICPA claims adjudication 
process. While the information collection requirements in Sec.  
30.807(b) relating to information to be submitted by claimants in 
support of claims for wage-loss benefits are not new and have been 
approved under the PRA in OMB Control No. 1240-0002 (as 20 CFR 30.806), 
they have been moved in this proposed rule, without substantive change, 
to new Sec.  30.807(b); this new location will be incorporated into OMB 
Control No. 1240-0002 in this revision. The Department is proposing to 
create two new forms to implement one of the new collections (see 
sections C and D below). The remaining new collections will be 
implemented by adding them to existing Forms EE/EN-11A and EE/EN-11B 
(see sections A and B below).

A. Letter to Claimant About Claiming for Impairment Benefits Under Part 
E, Sent With Enclosure EN-11A: Form EE-11A (Sec. Sec.  30.114(b)(3), 
30.905 and 30.907)

    Summary: Employees and/or survivors claiming for the first time 
that a covered illness has resulted in permanent impairment must submit 
a narrative medical report from a physician that conforms to the 
methodology of the 5th Edition of the American Medical Association's 
Guides to the Evaluation of Permanent Impairment (AMA's Guides) and 
provides a rating of whole-person impairment. In order to obtain the 
necessary type of medical report, Form EE-11A explains the requirements 
for

[[Page 72303]]

that report to covered Part E employees (or their survivors), and 
enclosure EE-11A provides them with the opportunity to choose their own 
physician to submit the report, or to ask OWCP to arrange for the 
report.
    Need: Proper medical evidence of permanent impairment is necessary 
to establish entitlement to benefits for permanent impairment under 
Part E of EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 3,767 Part E 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 
942 hours.

B. Letter to Claimant About Claiming for Wage-Loss Benefits Under Part 
E, Sent With Enclosure EE-11B: Form EE-11B (Sec. Sec.  30.114(b)(3) and 
30.807(b))

    Summary: Employees and/or survivors claiming for the first time 
that a covered illness has resulted in wage-loss must submit both 
earnings information and a narrative medical report from a physician 
that shows a causal relationship between the claimed wage-loss and the 
accepted ``covered illness.'' In order to obtain the necessary earnings 
information and medical report, Form EE-11B explains the type of 
factual and medical evidence that is required to support an initial 
claim for wage-loss benefits, and enclosure EN-11B collects information 
on the period of time for which the claim for wage-loss benefits is 
being made.
    Need: Factual and medical evidence of wage-loss is necessary to 
establish entitlement to benefits for wage-loss under Part E of 
EEOICPA.
    Respondents and proposed frequency of response: It is estimated 
that 520 Part E 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 30 minutes per response for a total annual burden of 
260 hours.

C. Claim for Home Health Care, Nursing Home or Assisted Living Benefits 
Under the Energy Employees Occupational Illness Compensation Program 
Act: Form EE-17A (Sec.  30.403)

    Summary: Covered Part B and covered Part E employees who have been 
awarded medical benefits for treatment of accepted illnesses by OWCP 
may file claims for Home Health Care, Nursing Home, or Assisted Living 
Benefits; all of these specific medical benefits require pre-
authorization by OWCP and a Letter of Medical Necessity. In order to 
obtain the name and contact information for the beneficiary's treating 
physician, Form EE-17A requires covered Part B and Part E employees to 
provide the name, address and telephone number of the physician that 
OWCP should contact to obtain the Letter of Medical Necessity when they 
make their first claim for these benefits.
    Need: A Form EE-17A claiming for Home Health Care, Nursing Home, or 
Assisted Living Benefits is necessary to initiate OWCP's first 
adjudication process for these specific pre-authorized medical benefits 
filed by covered Part B and covered Part E employees.
    Respondents and proposed frequency of response: It is estimated 
that 3,286 respondents annually will file one Form EE-17A.
    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-17A is estimated to take an average of 
five minutes per respondent for a total added annual burden of 274 
hours.

D. Physician's Certification of Medical Necessity for Home Health Care, 
Nursing Home or Assisted Living Benefits Under the Energy Employees 
Occupational Illness Compensation Program Act: Form EE-17B (Sec.  
30.403)

    Summary: Covered Part B and covered Part E employees who have been 
awarded medical benefits for treatment of accepted illnesses by OWCP 
may file claims for Home Health Care, Nursing Home, or Assisted Living 
Benefits; these specific medical benefits require both pre-
authorization by OWCP and a Letter of Medical Necessity from the 
treating physician that supports the need for the claimed benefits. In 
order to obtain the required Letter of Medical Necessity the first time 
a claim is filed, OWCP will send the beneficiary's treating physician a 
Form EE-17B requesting this required medical evidence. The Form EE-17B 
also asks the physician to verify that a face-to-face physical 
examination was conducted, which is required by OWCP procedures.
    Need: A Form EE-17B requesting a Letter of Medical Necessity to 
support an initial claim for Home Health Care, Nursing Home, or 
Assisted Living Benefits filed by a covered Part B or covered Part E 
employee is needed so OWCP can adjudicate the initial claim for these 
pre-authorized medical benefits.
    Respondents and proposed frequency of response: It is estimated 
that 3,286 respondents annually will file one Form EE-17B.
    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-17B is estimated to take an average of 
30 minutes per respondent for a total annual burden of 1,643 hours.

E. Information Collection Request (ICR) Submissions to OMB and Request 
for Comments

    Consistent with requirements codified at 40 U.S.C. 3506(a)(1)(B), 
(c)(2)(b) and 3507(a)(1)(D), and 5 CFR 1320.11, the Department has 
submitted a series of ICRs to OMB for approval under the PRA, in order 
to update the information collection approvals to reflect this 
rulemaking and provide interested parties a specific opportunity to 
comment under the PRA. Allowing an opportunity for comment helps to 
ensure that requested data can be provided in the desired format, 
reporting burden (time and financial resources) is minimized, 
collection instruments are clearly understood, and the impact of 
collection requirements on respondents can be properly assessed. OMB 
and the Department are particularly interested in comments that:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection 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.

F. Burden Summaries

    The information collections in this rule may be summarized as 
follows. The number of responses and burden estimates listed are not 
specific to the Energy program; instead, the estimates

[[Page 72304]]

are cumulative for all OWCP-administered compensation programs that 
collect this information.
    1. Title of Collection: Energy Employees Occupational Illness 
Compensation Program Act Forms.
    OMB Control Number: 1240-0002.
    Total Estimated Number of Responses: 67,325 (1305 due to this 
rulemaking).
    Total Estimated Annual Time Burden: 23,746 hours (556 due to this 
rulemaking).
    Total Estimated Annual Other Costs Burden: $31,503 ($3,414 due to 
this rulemaking).
    2. Title of Collection: Claim for Medical Reimbursement Form.
    OMB Control Number: 1240-0007.
    Total Estimated Number of Responses: 38,480.
    Total Estimated Annual Time Burden: 6,388 hours.
    Total Estimated Annual Other Costs Burden: $68,879.
    3. Title of Collection: Uniform Billing Form (OWCP-04).
    OMB Control Number: 1240-0019.
    Total Estimated Number of Responses: 221,992.
    Total Estimated Annual Time Burden: 25,503 hours.
    Total Estimated Annual Other Costs Burden: $0.
    4. Title of Collection: Provider Enrollment Form.
    OMB Control Number: 1240-0021.
    Total Estimated Number of Responses: 31,979.
    Total Estimated Annual Time Burden: 4,252 hours.
    Total Estimated Annual Other Costs Burden: $16,629.
    5. Title of Collection: Health Insurance Claim Form.
    OMB Control Number: 1240-0044.
    Total Estimated Number of Responses: 2,777,034.
    Total Estimated Annual Time Burden: 260,873 hours.
    Total Estimated Annual Other Costs Burden: $0.
    6. Title of Collection: Pharmacy Billing Requirements.
    OMB Control Number: 1240-0050.
    Total Estimated Number of Responses: 1,453,300.
    Total Estimated Annual Time Burden: 24,421 hours.
    Total Estimated Annual Other Costs Burden: $0.

VII. Unfunded Mandates Reform Act

    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 proposed 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.

VIII. Executive Order 13132 (Federalism)

    The Department has reviewed this proposed rule in accordance with 
E.O. 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' The proposed 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.''

IX. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    The Department has reviewed this proposed rule in accordance with 
E.O. 13175 and has determined that it does not have ``tribal 
implications.'' The proposed rule does not ``have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian 
tribes.''

X. Executive Order 12988 (Civil Justice Reform)

    This regulation has been drafted and reviewed in accordance with 
E.O. 12988, Civil Justice Reform, and will not unduly burden the 
Federal court system. The regulation has been written so as to minimize 
litigation and provide a clear legal standard for affected conduct, and 
has been reviewed carefully to eliminate drafting errors and 
ambiguities.

XI. Executive Order 13045 (Protection of Children From Environmental, 
Health Risks and Safety Risks)

    In accordance with E.O. 13045, the Department has evaluated the 
environmental health and safety effects of this rule on children, and 
has determined that it will have no effect on children.

XII. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)

    In accordance with E.O. 13211, the Department has evaluated the 
effects of this rule on energy supply, distribution or use, and has 
determined that it is not likely to have a significant adverse effect 
on them.

List of Subjects in 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 stated in the preamble, the Department of Labor 
proposes to amend subchapter C consisting of part 30 as follows:

SUBCHAPTER C--ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION 
PROGRAM ACT OF 2000

PART 30--CLAIMS FOR COMPENSATION UNDER THE ENERGY EMPLOYEES 
OCCUPATIONAL ILLNESS COMPENSATION PROGRAM ACT OF 2000, AS AMENDED

0
1. The authority citation for part 30 is revised to read as follows:

     Authority: 5 U.S.C. 301; 31 U.S.C. 3716 and 3717; 42 U.S.C. 
7384d, 7384t, 7384u and 7385s-10; Executive Order 13179, 65 FR 
77487, 3 CFR, 2000 Comp., p. 321; Secretary of Labor's Order No. 10-
2009, 74 FR 58834.

0
2. Revise Sec.  30.1 to read as follows:


Sec.  30.1  What rules govern the administration of EEOICPA and this 
chapter?

    In accordance with EEOICPA, Executive Order 13179 and Secretary's 
Order No. 10-2009, the primary responsibility for administering the 
Act, except for those activities assigned to the Secretary of Health 
and Human Services (HHS), the Secretary of Energy and the Attorney 
General, has been delegated to the Director of the Office of Workers' 
Compensation Programs (OWCP). Except as otherwise provided by law, the 
Director of OWCP and his or her designees have the exclusive authority 
to administer, interpret and enforce the provisions of the Act.
0
3. Amend Sec.  30.2 by revising paragraph (b) to read as follows:


Sec.  30.2  In general, how have the tasks associated with the 
administration of EEOICPA claims process been assigned?

* * * * *

[[Page 72305]]

    (b) However, HHS has exclusive control of the portion of the claims 
process under which it provides reconstructed doses for certain 
radiogenic cancer claims (see Sec.  30.115), which it delegated to the 
National Institute for Occupational Safety and Health (NIOSH) in 42 CFR 
82.1. HHS also has exclusive control of the process for designating 
classes of employees to be added to the Special Exposure Cohort under 
Part B of the Act, and has promulgated regulations governing that 
process at 42 CFR part 83. Finally, HHS has promulgated regulations at 
42 CFR part 81 that set out guidelines that OWCP follows when it 
assesses the compensability of an employee's radiogenic cancer (see 
Sec.  30.213). DOE and DOJ must, among other things, notify potential 
claimants and submit evidence that OWCP deems necessary for its 
adjudication of claims under EEOICPA (see Sec. Sec.  30.105, 30.112, 
30.206, 30.212 and 30.221).
0
4. Amend Sec.  30.5 as follows:
0
a. Revise paragraphs (c)(2)(i) and (i);
0
b. Redesignate paragraphs (j) through (hh) and paragraphs (ii) and (jj) 
as paragraphs (k) through (ii) and (kk) and (ll), respectively;
0
c. Add paragraphs (j) and (jj);
0
d. Revise newly designated paragraphs (k)(2) introductory text and (w);
0
e. In newly designated paragraph (x)(2)(ii), remove the period at the 
end of the paragraph and add ``; or'' in its place;
0
f. Add paragraph (x)(2)(iii) to newly designated paragraph (x);
0
g. Revise newly designated paragraphs (ee) and the introductory text to 
(gg); and
0
h. Revise newly designated paragraph (ii) introductory text, further 
redesignate paragraphs (ii)(1), (2) and (3) as paragraphs (ii)(1)(i), 
(ii) and (iii), respectively, and add paragraphs (ii)(1) and (2).
    The revisions and additions read as follows:


Sec.  30.5  What are the definitions used in this part?

* * * * *
    (c) * * *
    (2)(i) An individual employed at a facility that NIOSH reported had 
a potential for significant residual contamination outside of the 
period described in paragraph (c)(1) of this section;
* * * * *
    (i) Beryllium vendor means the specific corporations and named 
predecessor corporations listed in section 7384l(6) of the Act and any 
of the facilities designated as such by DOE on December 27, 2002.
    (j) Beryllium vendor facility means a facility owned and operated 
by a beryllium vendor.
    (k) * * *
    (2) A written diagnosis of silicosis is made by a licensed 
physician and is accompanied by:
* * * * *
    (w) Department of Energy or DOE includes the predecessor agencies 
of DOE back to the establishment of the Manhattan Engineer District on 
August 13, 1942.
    (x) * * *
    (2) * * *
    (iii) A civilian employee of a state or federal government agency 
if the agency employing that individual is found to have entered into a 
contract with DOE for the provision of one or more services it was not 
statutorily obligated to perform, and DOE compensated the agency for 
those services. The delivery or removal of goods from the premises of a 
DOE facility does not constitute a service for the purposes of 
determining a worker's coverage under this paragraph (x).
* * * * *
    (ee) Physician means surgeons, podiatrists, dentists, clinical 
psychologists, optometrists, chiropractors and osteopathic 
practitioners, within the scope of their practice as defined by state 
law. The services of chiropractors that may be reimbursed are limited 
to treatment consisting of manual manipulation of the spine to correct 
a subluxation as demonstrated by x-ray to exist.
* * * * *
    (gg) Specified cancer means:
* * * * *
    (ii) Time of injury is defined as follows:
    (1) For an employee's claim, this term means:
* * * * *
    (2) For a survivor's claim, the date of the employee's death is the 
time of injury.
    (jj) Time of payment or payment means the date that a paper check 
issued by the Department of the Treasury was received by the payee or 
by someone who was legally able to act for the payee, or the date the 
Department of the Treasury made an Electronic Funds Transfer to the 
payee's financial institution.
* * * * *
0
5. Amend Sec.  30.100 by revising paragraphs (a), (c) introductory 
text, (c)(1) and (d) to read as follows:


Sec.  30.100  In general, how does an employee file an initial claim 
for benefits?

    (a) To claim benefits under EEOICPA, an employee must file a claim 
in writing with OWCP. Form EE-1 should be used for this purpose, but 
any written communication that requests benefits under EEOICPA will be 
considered a claim. It will, however, be necessary for an employee to 
submit a Form EE-1 for OWCP to fully develop the claim. Copies of Form 
EE-1 may be obtained from OWCP or on the Internet at https://www.dol.gov/owcp/energy/index.htm. The employee must sign the written 
claim that is filed with OWCP, but another person may present the claim 
to OWCP on the employee's behalf.
* * * * *
    (c) Except as provided in paragraph (d) of this section, a claim is 
considered to be ``filed'' on the date that the employee mails his or 
her claim to OWCP, as determined by postmark or other carrier's date 
marking, or on the date that the claim is received by OWCP, whichever 
is the earliest determinable date. However, in no event will a claim 
under Part B of EEOICPA be considered to be ``filed'' earlier than July 
31, 2001, nor will a claim under Part E of EEOICPA be considered to be 
``filed'' earlier than October 30, 2000.
    (1) The employee shall affirm that the information provided on the 
Form EE-1 is true, and must inform OWCP of any subsequent changes to 
that information.
* * * * *
    (d) For those claims under Part E of EEOICPA that were originally 
filed with DOE as claims for assistance under former section 7385o of 
EEOICPA (which was repealed on October 28, 2004), a claim is considered 
to be ``filed'' on the date that the employee mailed his or her claim 
to DOE, as determined by postmark or other carrier's date marking, or 
on the date that the claim was received by DOE, whichever is the 
earliest determinable date. However, in no event will a claim referred 
to in this paragraph be considered to be ``filed'' earlier than October 
30, 2000.
0
6. Amend Sec.  30.101 by revising paragraphs (a), (d) introductory 
text, (d)(1) and (e) to read as follows:


Sec.  30.101  In general, how is a survivor's claim filed?

    (a) A survivor of an employee must file a claim for compensation in 
writing with OWCP. Form EE-2 should be used for this purpose, but any 
written communication that requests survivor benefits under the Act 
will be considered a claim. It will, however, be necessary for a 
survivor to submit a

[[Page 72306]]

Form EE-2 for OWCP to fully develop the claim. Copies of Form EE-2 may 
be obtained from OWCP or on the Internet at https://www.dol.gov/owcp/energy/index.htm. The survivor must sign the written claim that is 
filed with OWCP, but another person may present the claim to OWCP on 
the survivor's behalf. Although only one survivor needs to file a claim 
under this section to initiate the development process, OWCP will 
distribute any monetary benefits payable on the claim among all 
eligible surviving beneficiaries who have filed claims with OWCP.
* * * * *
    (d) Except as provided in paragraph (e) of this section, a 
survivor's claim is considered to be ``filed'' on the date that the 
survivor mails his or her claim to OWCP, as determined by postmark or 
other carrier's date making, or the date that the claim is received by 
OWCP, whichever is the earliest determinable date. However, in no event 
will a survivor's claim under Part B of the Act be considered to be 
``filed'' earlier than July 31, 2001, nor will a survivor's claim under 
Part E of the Act be considered to be ``filed'' earlier than October 
30, 2000.
    (1) The survivor shall affirm that the information provided on the 
Form EE-2 is true, and must inform OWCP of any subsequent changes to 
that information.
* * * * *
    (e) For those claims under Part E of EEOICPA that were originally 
filed with DOE as claims for assistance under former section 7385o of 
EEOICPA (which was repealed on October 28, 2004), a claim is considered 
to be ``filed'' on the date that the survivor mailed his or her claim 
to DOE, as determined by postmark or other carrier's date marking, or 
on the date that the claim was received by DOE, whichever is the 
earliest determinable date. However, in no event will a claim referred 
to in this paragraph be considered to be ``filed'' earlier than October 
30, 2000.
* * * * *
0
7. Amend Sec.  30.102 by revising paragraph (a) to read as follows:


Sec.  30.102  In general, how does an employee file a claim for 
additional impairment or wage-loss under Part E of EEOICPA?

    (a) An employee previously awarded impairment benefits by OWCP may 
file a claim for additional impairment benefits. Such claim must be 
based on an increase in the employee's impairment rating attributable 
to the covered illness or illnesses from the impairment rating that 
formed the basis for the last award of such benefits by OWCP. OWCP will 
only adjudicate claims for such an increased rating that are filed at 
least two years from the date of the last award of impairment benefits. 
However, OWCP will not wait two years before it will adjudicate a claim 
for additional impairment that is based on an allegation that the 
employee sustained a new covered illness.
* * * * *
0
8. Amend Sec.  30.103 by revising paragraph (b) to read as follows:


Sec.  30.103  How does a claimant make sure that OWCP has the evidence 
necessary to process the claim?

* * * * *
    (b) Copies of the forms listed in this section are available for 
public inspection at the U.S. Department of Labor, Office of Workers' 
Compensation Programs, Washington, DC 20210. They may also be obtained 
from OWCP district offices and on the Internet at https://www.dol.gov/owcp/energy/index.htm.
0
9. Amend Sec.  30.110 by revising paragraphs (a)(1) and (4) and (b) to 
read as follows:


Sec.  30.110  Who is entitled to compensation under the Act?

    (a) * * *
    (1) A ``covered beryllium employee'' (as described in Sec.  
30.205(a)) with a covered beryllium illness (as defined in Sec.  
30.5(p)) who was exposed to beryllium in the performance of duty (in 
accordance with Sec.  30.206).
* * * * *
    (4) A ``covered uranium employee'' (as defined in Sec.  30.5(t)).
    (b) Under Part E of EEOICPA, compensation is payable to a ``covered 
Part E employee'' (as defined in Sec.  30.5(q)), or his or her 
survivors.
* * * * *
0
10. Amend Sec.  30.112 by revising paragraph (b)(3) to read as follows:


Sec.  30.112  What kind of evidence is needed to establish covered 
employment and how will that evidence be evaluated?

* * * * *
    (b) * * *
    (3) If the only evidence of covered employment is a written 
affidavit or declaration subject to penalty of perjury by the employee, 
survivor or any other person, and DOE or another entity either 
disagrees with the assertion of covered employment or cannot concur or 
disagree with the assertion of covered employment, then OWCP will 
evaluate the probative value of the affidavit in conjunction with the 
other evidence of employment, and may determine that the claimant has 
not met his or her burden of proof under Sec.  30.111.
0
11. Amend Sec.  30.113 by revising paragraph (c) to read as follows:


Sec.  30.113  What are the requirements for written medical 
documentation, contemporaneous records, and other records or documents?

* * * * *
    (c) If a claimant submits a certified statement, by a person with 
knowledge of the facts, that the medical records containing a diagnosis 
and date of diagnosis of a covered medical condition no longer exist, 
then OWCP may consider other evidence to establish a diagnosis and date 
of diagnosis of a covered medical condition. However, OWCP will 
evaluate the probative value of such other evidence to determine 
whether it is sufficient proof of a covered medical condition.
0
12. Amend Sec.  30.114 as follows:
0
a. Revise paragraphs (b)(1) and (2);
0
b. Redesignate paragraph (b)(3) as paragraph (b)(4); and
0
c. Add paragraph (b)(3).
    The revisions and addition read as follows:


Sec.  30.114  What kind of evidence is needed to establish a 
compensable medical condition and how will that evidence be evaluated?

* * * * *
    (b) * * *
    (1) For covered beryllium illnesses under Part B of EEOICPA, 
additional medical evidence, as set forth in Sec.  30.207, is required 
to establish a beryllium illness.
    (2) For chronic silicosis under Part B of EEOICPA, additional 
medical evidence, as set forth in Sec.  30.222, is required to 
establish chronic silicosis.
    (3) For covered illnesses under Part E of EEOICPA, additional 
medical evidence, as set forth in Sec.  30.232, is required to 
establish a covered illness.
    (i) For impairment benefits under Part E of EEOICPA, additional 
medical evidence, as set forth in Sec.  30.901, is required to 
establish an impairment that is the result of a covered illness 
referred to in Sec.  30.900.
    (ii) For wage-loss benefits under Part E of EEOICPA, additional 
medical evidence, as set forth in Sec.  30.806, is required to 
establish wage-loss that is the result of a covered illness referred to 
in Sec.  30.800.
* * * * *
0
13. Amend Sec.  30.115 by revising paragraphs (a) introductory text, 
(a)(2) and (b) to read as follows:


Sec.  30.115  For those radiogenic cancer claims that do not seek 
benefits under Part B of the Act pursuant to the Special Exposure 
Cohort provisions, what will OWCP do once it determines that an 
employee contracted cancer?

    (a) Other than claims seeking benefits under Part E of the Act that 
have

[[Page 72307]]

previously been accepted under section 7384u of the Act or claims 
previously accepted under Part B pursuant to the Special Exposure 
Cohort provisions, OWCP will forward the claim package (including, but 
not limited to, Forms EE-1, EE-2, EE-3, EE-4 and EE-5, as appropriate) 
to NIOSH for dose reconstruction. At that point in time, development of 
the claim by OWCP may be suspended.
* * * * *
    (2) NIOSH will then reconstruct the radiation dose of the employee 
and provide the claimant and OWCP with the final dose reconstruction 
report. The final dose reconstruction record will be delivered to OWCP 
with the final dose reconstruction report and to the claimant upon 
request.
    (b) Following its receipt of the final dose reconstruction report 
from NIOSH, OWCP will resume its adjudication of the cancer claim and 
consider whether the claimant has met the eligibility criteria set 
forth in subpart C of this part. However, during the period before it 
receives a reconstructed dose from NIOSH, OWCP may continue to develop 
other aspects of a claim, to the extent that it deems such development 
to be appropriate.
0
14. Amend Sec.  30.205 by revising paragraphs (a)(1) and (a)(3)(i) to 
read as follows:


Sec.  30.205  What are the criteria for eligibility for benefits 
relating to beryllium illnesses covered under Part B of EEOICPA?

* * * * *
    (a) * * *
    (1) The employee is a ``current or former employee as defined in 5 
U.S.C. 8101(1)'' (see Sec.  30.5(u)) who may have been exposed to 
beryllium at a DOE facility or at a facility owned, operated or 
occupied by a beryllium vendor; or
* * * * *
    (3) * * *
    (i) Employed at a DOE facility (as defined in Sec.  30.5(y)); or
* * * * *
0
15. Amend Sec.  30.206 by revising paragraph (a) to read as follows:


Sec.  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?

    (a) Proof of employment or physical presence at a DOE facility, or 
a beryllium vendor facility as defined in Sec.  30.5(j), because of 
employment by the United States, a beryllium vendor, or a contractor or 
subcontractor of a beryllium vendor during a period when beryllium 
dust, particles or vapor may have been present at such facility, may be 
made by the submission of any trustworthy 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.
* * * * *
0
16. Amend Sec.  30.207 as follows:
0
a. Revise paragraph (a);
0
b. Redesignate paragraph (d) as paragraph (e); and
0
c. Add paragraph (d).
    The revision and addition read as follows:


Sec.  30.207  How does a claimant prove a diagnosis of a beryllium 
disease covered under Part B?

    (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 paragraph (b), (c), (d) or (e) of this 
section.
* * * * *
    (d) OWCP will use the criteria in either paragraph (c)(1) or (2) of 
this section to establish that the employee developed chronic beryllium 
disease as follows:
    (1) If the earliest dated medical evidence shows that the employee 
was either treated for or diagnosed with a chronic respiratory disorder 
before January 1, 1993, the criteria set forth in paragraph (c)(2) of 
this section may be used;
    (2) If the earliest dated medical evidence shows that the employee 
was either treated for or diagnosed with a chronic respiratory disorder 
on or after January 1, 1993, the criteria set forth in paragraph (c)(1) 
of this section must be used; and
    (3) If the employee was treated for a chronic respiratory disorder 
before January 1, 1993 and medical evidence verifies that such 
treatment was performed before January 1, 1993, but the medical 
evidence is dated on or after January 1, 1993, the criteria set forth 
in paragraph (c)(2) of this section may be used.
* * * * *
0
17. Amend Sec.  30.210 by revising paragraph (a)(1) to read as follows:


Sec.  30.210  What are the criteria for eligibility for benefits 
relating to radiogenic cancer?

    (a) * * *
    (1) The employee has been diagnosed with one of the forms of cancer 
specified in Sec.  30.5(gg); and
* * * * *
0
18. Revise Sec.  30.211 to read as follows:


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 a 
specified cancer (as defined in Sec.  30.5(gg)) or other cancer with 
medical evidence that sets forth an explicit diagnosis of cancer and 
the date on which that diagnosis was first made.
0
19. Amend Sec.  30.213 by revising paragraph (a) to read as follows:


Sec.  30.213  How does a claimant establish that the radiogenic cancer 
was at least as likely as not related to employment at the DOE 
facility, the atomic weapons employer facility, or the RECA section 5 
facility?

    (a) HHS, with the advice of the Advisory Board on Radiation and 
Worker Health, has issued regulatory guidelines at 42 CFR part 81 that 
OWCP uses to determine whether radiogenic cancers claimed under Parts B 
and E were at least as likely as not related to employment at a DOE 
facility, an atomic weapons employer facility, or a RECA section 5 
facility. Persons should consult HHS's regulations for information 
regarding the factual evidence that will be considered by OWCP, in 
addition to the employee's final dose reconstruction report that will 
be provided to OWCP by NIOSH, in making this particular factual 
determination.
* * * * *
0
20. Amend Sec.  30.220 by revising paragraph (a) to read as follows:


Sec.  30.220  What are the criteria for eligibility for benefits 
relating to chronic silicosis?

* * * * *
    (a) The employee is a civilian DOE employee, or a civilian DOE 
contractor employee, who was present for a number of workdays 
aggregating at least 250 workdays during the mining of tunnels at a DOE 
facility (as defined in Sec.  30.5(y)) located in Nevada or Alaska for 
tests or experiments related to an atomic weapon, and has been 
diagnosed with chronic silicosis (as defined in Sec.  30.5(k)); or
* * * * *
0
21. Amend Sec.  30.222 by revising paragraph (a) introductory text to 
read as follows:


Sec.  30.222  How does a claimant establish that the employee has been 
diagnosed with chronic silicosis or has sustained a consequential 
injury, illness, impairment or disease?

    (a) A written diagnosis of the employee's chronic silicosis (as 
defined in Sec.  30.5(k)) shall be made by a licensed physician and 
accompanied by one of the following:
* * * * *

[[Page 72308]]

0
22. Amend Sec.  30.230 by revising paragraphs (a) and (d)(1) 
introductory text to read as follows:


Sec.  30.230  What are the criteria necessary to establish that an 
employee contracted a covered illness under Part E of EEOICPA?

* * * * *
    (a) That OWCP has determined under Part B of EEOICPA that the 
employee is a DOE contractor employee as defined in Sec.  30.5(x), and 
that he or she has been awarded compensation under that Part of the Act 
for an occupational illness;
* * * * *
    (d)(1) That the employee is a civilian DOE contractor employee as 
defined in Sec.  30.5(x), or a civilian who was employed in a uranium 
mine or mill located in Colorado, New Mexico, Arizona, Wyoming, South 
Dakota, Washington, Utah, Idaho, North Dakota, Oregon or Texas at any 
time during the period from January 1, 1942 through December 31, 1971, 
or was employed in the transport of uranium ore or vanadium-uranium ore 
from such a mine or mill during that same period, and that he or she:
* * * * *
0
23. Amend Sec.  30.231 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  30.231  How does a claimant prove employment-related exposure to 
a toxic substance at a DOE facility or a RECA section 5 facility?

* * * * *
    (a) Proof of employment may be established by any trustworthy 
records 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. If the only evidence of covered employment is a 
written affidavit or declaration subject to penalty of perjury by the 
employee, survivor or any other person, and DOE or another entity 
either disagrees with the assertion of covered employment or cannot 
concur or disagree with the assertion of covered employment, then OWCP 
will evaluate the probative value of the affidavit in conjunction with 
the other evidence of employment, and may determine that the claimant 
has not met his or her burden of proof under Sec.  30.111.
    (b) Proof of exposure to a toxic substance may be established by 
the submission of any appropriate document or information that is 
evidence that such substance was present at the facility where the 
employee was employed and that the employee came into contact with such 
substance. Information from the following sources may be considered as 
probative factual evidence for purposes of establishing an employee's 
exposure to a toxic substance at a DOE facility or a RECA section 5 
facility:
    (1) To the extent practicable and appropriate, from DOE, a DOE-
sponsored Former Worker Program, or an entity that acted as a 
contractor or subcontractor to DOE;
    (2) OWCP's Site Exposure Matrices; or
    (3) Any other entity deemed by OWCP to be a reliable source of 
information necessary to establish that the employee was exposed to a 
toxic substance at a DOE facility or RECA section 5 facility.
0
24. Amend Sec.  30.232 as follows:
0
a. Revise paragraphs (a)(1) and (2);
0
b. Remove paragraphs (a)(3) and (4) and (b); and
0
c. Redesignate paragraph (c) as paragraph (b) and revise newly 
designated paragraph (b).
    The revisions read as follows:


Sec.  30.232  How does a claimant establish that the employee has been 
diagnosed with a covered illness, or sustained an injury, illness, 
impairment or disease as a consequence of a covered illness?

    (a) * * *
    (1) Written medical evidence containing a physician's diagnosis of 
the employee's covered illness (as that term is defined in Sec.  
30.5(s)), and the physician's reasoning for his or her opinion 
regarding causation; and
    (2) Any other evidence OWCP may deem necessary to show that the 
employee has or had an illness that resulted from an exposure to a 
toxic substance while working at either a DOE facility or a RECA 
section 5 facility.
    (b) An injury, illness, impairment or disease sustained as a 
consequence of a covered illness (as defined in Sec.  30.5(s)) must be 
established with a fully rationalized medical report by a physician 
that shows the relationship between the injury, illness, impairment or 
disease and the covered illness. Neither the fact that the injury, 
illness, impairment or disease manifests itself after a diagnosis of a 
covered illness, nor the belief of the claimant that the injury, 
illness, impairment or disease was caused by the covered illness, is 
sufficient in itself to prove a causal relationship.
0
25. Add an undesignated center heading preceding Sec.  30.300 and 
revise Sec.  30.300 to read as follows:

General Provisions


Sec.  30.300  What administrative process will OWCP use to decide 
claims for entitlement, and how can claimants obtain judicial review of 
final decisions on their claims?

    OWCP district offices will issue recommended decisions with respect 
to claims for entitlement under Part B and/or Part E of EEOICPA that 
are filed pursuant to the regulations set forth in subpart B of this 
part. In circumstances where a claim is made for more than one benefit 
available under Part B and/or Part E of the Act, OWCP may issue a 
recommended decision on only part of that particular claim in order to 
adjudicate that portion of the claim as quickly as possible. Should 
this occur, OWCP will issue one or more recommended decisions on the 
deferred portions of the claim when the adjudication of those portions 
is completed. All recommended decisions granting and/or denying claims 
for entitlement under Part B and/or Part E of 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 before 
the FAB. The FAB will consider objections filed by a claimant and 
conduct a hearing, if requested to do so by the claimant, before 
issuing a final decision on the claim for entitlement. Claimants may 
request judicial review of a final decision of FAB by filing an action 
in federal district court.
0
26. Amend Sec.  30.301 by revising paragraph (b)(1) to read as follows:


Sec.  30.301  May subpoenas be issued for witnesses and documents in 
connection with a claim under Part B of EEOICPA?

* * * * *
    (b) * * *
    (1) Submit the request in writing and send it to the FAB reviewer 
as early as possible, but no later than 30 days (as evidenced by 
postmark or other carrier's date marking) after the date of the 
original hearing request;
* * * * *
0
27. Amend Sec.  30.305 by revising paragraph (a) to read as follows:


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 
prepared by NIOSH (if any), any report submitted by DOE and the results 
of such investigation as OWCP may deem necessary.
* * * * *
0
28. Revise Sec.  30.306 to read as follows:


Sec.  30.306  What does the recommended decision include?

    The recommended decision shall include a discussion of the district 
office's findings of fact and conclusions of law in support of the 
recommendation. The recommended

[[Page 72309]]

decision may recommend acceptance or rejection of the claim in its 
entirety, or of a portion of the claim presented. It is accompanied by 
a notice of the claimant's right to file objections with, and request a 
hearing before, the FAB.


Sec.  30.307  [Redesignated as Sec.  30.308]

0
29a. Redesignate Sec.  30.307 as Sec.  30.308.
0
29b. Add Sec.  30.307 to read as follows:


Sec.  30.307  Can one recommended decision address the entitlement of 
multiple claimants?

    (a) When multiple individuals have filed survivor claims under Part 
B and/or Part E of EEOICPA relating to the same deceased employee, the 
entitlement of all of those individuals shall be determined in the same 
recommended decision, except as described in paragraph (b) of this 
section.
    (b) If another individual subsequently files a survivor claim for 
the same award, the recommended decision on that claim will not address 
the entitlement of the earlier claimants if the district office 
recommended that the later survivor claim be denied.
0
30. Revise Sec.  30.310 to read as follows:


Sec.  30.310  What must the claimant do if he or she objects to the 
recommended decision or wants to request a hearing?

    (a) Within 60 days from the date the recommended decision is 
issued, the claimant must state, in writing, whether he or she objects 
to any of the findings of fact and/or conclusions of law discussed in 
such decision, including NIOSH's reconstruction of the radiation dose 
to which the employee was exposed (if any), and whether a hearing is 
desired. This written statement should be filed with the FAB at the 
address indicated in the notice accompanying the recommended decision.
    (b) For purposes of determining whether the written statement 
referred to in paragraph (a) of this section has been timely filed with 
the FAB, the statement will be considered to be ``filed'' on the date 
that the claimant mails it to the FAB, as determined by postmark or 
other carrier's date marking, or on the date that such written 
statement is actually received, whichever is the earliest determinable 
date.
0
31. Amend Sec.  30.313 by revising paragraph (c) to read as follows:


Sec.  30.313  How is a review of the written record conducted?

* * * * *
    (c) Any objection that is not presented to the FAB reviewer, 
including any objection to NIOSH's reconstruction of the radiation dose 
to which the employee was exposed (if any), whether or not the 
pertinent issue was previously presented to the district office, is 
deemed waived for all purposes.
0
32. Amend Sec.  30.314 by revising paragraphs (a) introductory text and 
(b) to read as follows:


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, 
teleconference, videoconference or other electronic means. As part of 
the hearing process, the FAB reviewer will consider the written 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 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 hearing date. The FAB reviewer may mail a hearing 
notice less than 30 days prior to the hearing if the claimant and/or 
representative waives the above 30-day notice period in writing. If the 
claimant only objects to part of the recommended decision, the FAB 
reviewer may issue a final decision accepting the remaining part of the 
recommendation of the district office without first holding a hearing 
(see Sec.  30.316). Any objection that is not presented to the FAB 
reviewer, including any objection to NIOSH's reconstruction of the 
radiation dose to which the employee was exposed (if any), whether or 
not the pertinent issue was previously presented to the district 
office, is deemed waived for all purposes.
* * * * *
0
33. Amend Sec.  30.315 by revising paragraph (a) to read as follows:


Sec.  30.315  May a claimant postpone a hearing?

    (a) The FAB will entertain any reasonable request for scheduling 
the time and place of the hearing, but such requests should be made at 
the time that the hearing is requested. Scheduling is at the discretion 
of the FAB, and is not reviewable. In most instances, once the hearing 
has been scheduled and appropriate written notice has been mailed, it 
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). If a request to postpone a scheduled hearing does not 
meet one of the tests of paragraph (b) and cannot be accommodated on 
the same docket, or if the claimant and/or representative cancels or 
fails to attend a scheduled hearing, no further opportunity for a 
hearing will be provided. Instead, the FAB will consider the claimant's 
objections 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.
* * * * *
0
34. Revise Sec.  30.318 to read as follows:


Sec.  30.318  How will FAB consider objections to NIOSH's 
reconstruction of a radiation dose, or to OWCP's calculation of the 
recommended probability of causation, in a Part B claim for radiogenic 
cancer?

    (a) If the claimant objects to NIOSH's reconstruction of the 
radiation dose to which the employee was exposed, either in writing or 
at the oral hearing, the FAB reviewer has the discretion to consult 
with NIOSH as part of his or her consideration of any objection. 
However, the HHS dose reconstruction regulation, which provides 
guidance for the technical methods developed and used by NIOSH to 
provide a reasonable estimate of the radiation dose received by an 
employee, is binding on FAB. Should this consultation take place, the 
FAB reviewer will properly document it in the case. Whether or not 
NIOSH is consulted, and as provided for in Sec.  30.317, the FAB 
reviewer may decide to return the case to the district office for 
referral to NIOSH for such further action as may be appropriate.
    (b) If the claimant objects to OWCP's calculation of the 
recommended probability of causation in a Part B radiogenic cancer 
claim, the FAB reviewer has the discretion to consider if OWCP used 
incorrect factual information when it performed this calculation. 
However, the statute requires that OWCP use a particular methodology, 
established by regulations issued by HHS at 42 CFR part 81, when it 
calculates the recommended probability of causation.
0
35. Amend Sec.  30.319 by revising paragraph (b) to read as follows:


Sec.  30.319  May a claimant request reconsideration of a final 
decision of the FAB?

* * * * *
    (b) For purposes of determining whether the written request 
referred to

[[Page 72310]]

in paragraph (a) of this section has been timely filed with the FAB, 
the request will be considered to be ``filed'' on the date that the 
claimant mails it to the FAB, as determined by postmark or other 
carrier's date marking, or on the date that such written request is 
actually received, whichever is the earliest determinable date.
* * * * *
0
36. Amend Sec.  30.320 by revising paragraph (b) to read as follows:


Sec.  30.320  Can a claim be reopened after the FAB has issued a final 
decision?

* * * * *
    (b) At any time after the FAB has issued a final decision pursuant 
to Sec.  30.316, a claimant may file a written request that the 
Director for Energy Employees Occupational Illness Compensation reopen 
his or her claim, provided that the claimant also submits new evidence 
of a diagnosed medical condition, covered employment, or exposure to a 
toxic substance. A written request to reopen a claim may also be 
supported by identifying either a change in the PoC guidelines, a 
change in the dose reconstruction methods or an addition of a class of 
employees to the Special Exposure Cohort. If the Director concludes 
that the evidence submitted or matter identified in support of the 
claimant's request is material to the claim, the Director will reopen 
the claim and return it to the district office for such further 
development as may be necessary, to be followed by a new recommended 
decision.
* * * * *
0
37. Amend Sec.  30.400 by revising paragraphs (a) and (c) and adding 
paragraph (d) to read as follows:


Sec.  30.400  What are the basic rules for obtaining medical treatment?

    (a) A covered Part B employee or a covered Part E employee who fits 
into at least one of the compensable claim categories described in 
subpart C of this part 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 or covered illness, retroactive to the date the 
claim for benefits for that occupational illness or covered illness 
under Part B or Part E of EEOICPA was filed. The employee need not be 
disabled to receive such treatment. If there is any doubt as to whether 
a specific service, appliance or supply is necessary to treat the 
occupational illness or covered illness, the employee should consult 
OWCP prior to obtaining it through the automated authorization process 
described in Sec.  30.700. In situations where the occupational illness 
or covered illness is a secondary cancer, such treatment may include 
treatment of the underlying primary cancer when it is medically 
necessary or related to treatment of the secondary cancer; however, 
payment for medical treatment of the underlying primary cancer under 
these circumstances does not constitute a determination by OWCP that 
the primary cancer is a covered illness under Part E of EEOICPA.
* * * * *
    (c) Any qualified physician may provide medical services, 
appliances and supplies to the covered Part B employee or the covered 
Part E employee. A hospital or a provider of medical services or 
supplies may furnish appropriate services, drugs, supplies and 
appliances, so long as such provider possesses all applicable licenses 
required under State law and has not been excluded from participation 
in the program under subpart H of this part. OWCP may apply a test of 
cost-effectiveness when it decides if appliances and supplies are 
necessary to treat an occupational illness or covered illness, may 
offset the cost of prior rental payments against a future purchase 
price, and may provide refurbished appliances where appropriate. Also, 
OWCP may authorize payment for durable medical equipment and 
modifications to a home or vehicle, to the extent that OWCP deems it 
necessary and reasonable. With respect to prescribed medications, OWCP 
may require the use of generic equivalents where they are available. 
OWCP may contract with a specific provider or providers to supply non-
physician medical services or supplies.
    (d) In circumstances when a covered employee dies after filing a 
claim but before such claim is accepted, OWCP will pay for medical 
treatment for all accepted illnesses, retroactive to the date that the 
employee filed the claim, if the deceased employee's survivor(s) files 
a claim that is accepted under Part B and/or Part E of EEOICPA. If this 
occurs, OWCP shall only pay either the provider(s) or the employee's 
estate for medical treatment that the employee obtained after filing 
his or her claim.
0
38. Revise Sec.  30.403 to read as follows:


Sec.  30.403  Will OWCP pay for home health care, nursing home, and 
assisted living services?

    (a) OWCP will authorize and pay for home health care claimed under 
section 7384t of the Act, whether or not such care constitutes skilled 
nursing care, so long as the care has been determined to be medically 
necessary. OWCP will pay for approved periods of care by a registered 
nurse, licensed practical nurse, home health aide or similarly trained 
individual, subject to the pre-authorization requirements described in 
paragraph (c) of this section.
    (b) OWCP will also authorize and pay for periods of nursing home 
and assisted living services claimed under section 7384t of the Act, so 
long as such services have been determined to be medically necessary, 
subject to the pre-authorization requirements described in paragraph 
(c) of this section.
    (c) To file an initial claim for home health care, nursing home, or 
assisted living services, the beneficiary must submit Form EE-17A to 
OWCP and identify his or her treating physician. OWCP then provides the 
treating physician with Form EE-17B, which asks the physician to submit 
a letter of medical necessity and verify that a timely face-to-face 
physical examination of the beneficiary took place. This particular 
pre-authorization process must be followed only for the initial claim 
for home health care, nursing home, and assisted living services; any 
subsequent request for pre-authorization must satisfy OWCP's usual 
medical necessity requirements. If a claimant disagrees with the 
decision of OWCP that the claimed services are not medically necessary, 
he or she may utilize the adjudicatory process described in subpart D 
of this part.
0
39. Amend Sec.  30.405 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  30.405  After selecting a treating physician, may an employee 
choose to be treated by another physician instead?

* * * * *
    (b) OWCP will approve the request if it determines that the reasons 
submitted are credible and supported by probative factual and/or 
medical evidence, as appropriate. Requests that are often approved 
include those for transfer of care from a general practitioner to a 
physician who specializes in treating the occupational illnesses or 
covered illnesses covered by EEOICPA, or the need for a new physician 
when an employee has moved.
    (c) OWCP may deny a requested change of physician if it determines 
that the reasons submitted are not both credible and supported by 
probative evidence. If a claimant disagrees with such an informal 
denial, he or she may utilize the adjudicatory process described in 
subpart D of this part.
0
40. Amend Sec.  30.410 by adding paragraph (c) to read as follows:


Sec.  30.410  Can OWCP require an employee to be examined by another 
physician?

* * * * *

[[Page 72311]]

    (c) OWCP may administratively close the claim and suspend 
adjudication of any pending matters if the employee refuses to attend a 
second opinion examination.
0
41. Amend Sec.  30.411 by adding paragraph (d) to read as follows:


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?

* * * * *
    (d) OWCP may administratively close the claim and suspend 
adjudication of any pending matters if the employee refuses to attend a 
referee medical examination.
0
42. Amend Sec.  30.416 by revising paragraph (a) to read as follows:


Sec.  30.416  How and when should medical reports 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 Form EE-7 as a guide for the preparation of 
his or her initial medical report in support of a claim under Part B 
and/or Part E of EEOICPA. The report should bear the physician's 
handwritten or electronic signature. OWCP may require an original 
signature on the report.
* * * * *
0
43. Amend Sec.  30.500 by revising paragraph (a)(2) and adding 
paragraph (c) to read as follows:


Sec.  30.500  What special statutory definitions apply to survivors 
under EEOICPA?

    (a) * * *
    (2) Child of a deceased covered Part B employee or deceased covered 
Part E employee means only a biological child, a stepchild or an 
adopted child of that individual.
* * * * *
    (c) For the purposes of paying compensation to survivors under Part 
E of EEOICPA, OWCP will use the following additional definitions:
    (1) Covered child means a child that is, as of the date of the 
deceased covered Part E employee's death, either under the age of 18 
years, or under the age of 23 years and a full-time student who was 
continuously enrolled in one or more educational institutions since 
attaining the age of 18 years, or any age and incapable of self-
support. A child's marital status or dependency on the covered employee 
for support is irrelevant to his or her eligibility for benefits as a 
covered child under Part E.
    (2) Incapable of self-support means that the child must have been 
physically and/or mentally incapable of self-support at the time of the 
covered employee's death.
0
44. Amend Sec.  30.501 by revising paragraphs (a) introductory text and 
(b) introductory text to read as follows:


Sec.  30.501  What order of precedence will OWCP use to determine which 
survivors are entitled to receive compensation under EEOICPA?

    (a) Under Part B of the Act, if OWCP determines that a survivor or 
survivors are entitled to receive compensation under EEOICPA because a 
covered Part B 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(hh)(3):
* * * * *
    (b) Under Part E of the Act, if OWCP determines that a survivor or 
survivors are entitled to receive compensation under EEOICPA because a 
covered Part E 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(hh)(3):
* * * * *
0
45. Revise Sec.  30.502 to read as follows:


Sec.  30.502  When is entitlement for survivors determined for purposes 
of EEOICPA?

    Entitlement to any lump-sum payment for survivors under the 
EEOICPA, other than for ``covered'' children under Part E, will be 
determined as of the time OWCP makes such a payment. As noted in Sec.  
30.500(c)(1), a child of a deceased Part E employee will only qualify 
as a ``covered'' child of that individual if he or she satisfied one of 
the additional statutory criteria for a ``covered'' child as of the 
date of the deceased Part E employee's death.
0
46. Amend Sec.  30.509 by revising paragraph (c) to read as follows:


Sec.  30.509  Under what circumstances may a survivor claiming under 
Part E of the Act choose to receive the benefits that would otherwise 
be payable to a covered Part E employee who is deceased?

* * * * *
    (c) OWCP only makes impairment determinations based on rationalized 
medical evidence in the case file that is sufficiently detailed and 
meets the various requirements for the many different types of 
impairment determinations possible under the 5th Edition of the 
American Medical Association's Guides to the Evaluation of Permanent 
Impairment (AMA's Guides). Therefore, OWCP will only make an impairment 
determination for a deceased covered Part E employee pursuant to this 
section if the medical evidence of record is sufficient to satisfy the 
pertinent requirements in the AMA's Guides and subpart J of this part.
0
47. Amend Sec.  30.600 by revising paragraph (c)(2) to read as follows:


Sec.  30.600  May a claimant designate a representative?

* * * * *
    (c) * * *
    (2) A representative does not have authority to sign the Form EE-1 
(described in Sec.  30.100(a)) or the Form EE-2 (described in Sec.  
30.101(a)) for his or her client. A representative also does not have 
authority to sign the Form EN-20 (described in Sec.  30.505(c)) for his 
or her client.
0
48. Amend Sec.  30.601 by revising the introductory text to read as 
follows:


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 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) or the standards regarding conflicts of interest 
adopted by OWCP. A federal employee may act as a representative only:
* * * * *
0
49. Amend Sec.  30.603 by revising paragraph (a) to read as follows:


Sec.  30.603  Are there any limitations on what the representative may 
charge the claimant for his or her services?

    (a) Notwithstanding any contract, the representative may not 
receive, for services rendered in connection with a claim pending 
before OWCP, more than the percentages of the lump-sum payment made to 
the claimant set out in paragraph (b) of this section, exclusive of 
costs and expenses.
* * * * *
0
50. Amend Sec.  30.617 by revising paragraph (b)(2) to read as follows:


Sec.  30.617  What happens if this type of tort suit was filed during 
the period from October 30, 2000 through December 28, 2001?

* * * * *
    (b) * * *
    (2) The date that is 30 months after the date the claimant or 
claimants first became aware that an illness of the covered Part B 
employee may be connected to his or her exposure to beryllium or 
radiation covered by EEOICPA. For purposes of determining when this 30-
month period begins, ``the date the claimant or claimants first became 
aware'' will be deemed to be the date they received either a 
reconstructed

[[Page 72312]]

dose from NIOSH, or a diagnosis of a covered beryllium illness, as 
applicable.
0
51. Amend Sec.  30.618 by revising paragraph (c)(2) to read as follows:


Sec.  30.618  What happens if this type of tort suit was filed after 
December 28, 2001?

* * * * *
    (c) * * *
    (2) The date that is 30 months after the date the claimant or 
claimants first became aware that an illness of the covered Part B 
employee may be connected to his or her exposure to beryllium or 
radiation covered by EEOICPA. For purposes of determining when this 30-
month period begins, ``the date the claimant or claimants first became 
aware'' will be deemed to be the date they received either a 
reconstructed dose from NIOSH, or a diagnosis of a covered beryllium 
illness, as applicable.
0
52. Revise Sec. Sec.  30.700 through 30.702 to read as follows:


Sec.  30.700  In general, what responsibilities do providers have with 
respect to enrolling with OWCP, seeking authorization to provide 
services, billing, and retaining medical records?

    (a) All providers must enroll with OWCP or its designated bill 
processing agent (hereinafter OWCP in this subpart) to have access to 
the automated authorization system and to submit medical bills to OWCP. 
To enroll, the provider must complete and submit a Form OWCP-1168 to 
the appropriate location noted on that form. By completing and 
submitting this form, providers certify that they satisfy all 
applicable federal and state licensure and regulatory requirements that 
apply to their specific provider or supplier type. The provider must 
maintain documentary evidence indicating that it satisfies those 
requirements. The provider is also required to notify OWCP immediately 
if any information provided to OWCP in the enrollment process changes. 
Federal government medical officers, private physicians and hospitals 
are also required to keep records of all cases treated by them under 
EEOICPA so they can supply OWCP with a history of the claimed 
occupational illness or covered illness, a description of the nature 
and extent of the claimed occupational illness or covered illness, the 
results of any diagnostic studies performed and the nature of the 
treatment rendered. This requirement terminates after a provider has 
supplied OWCP with the above-noted information, and otherwise 
terminates ten years after the record was created.
    (b) Where a medical provider intends to bill for a procedure where 
prior authorization is required, authorization must be requested from 
OWCP.
    (c) After enrollment, a provider must submit all medical bills to 
OWCP through its bill processing portal and include the Provider 
Number/ID obtained through enrollment or other identifying number 
required by OWCP.


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. OWCP may withhold payment for services until 
such report or evidence is provided. The physician or provider shall 
itemize the charges on Form OWCP-1500 or CMS-1500 (for professional 
charges or medicinal drugs dispensed in the office), Form OWCP-04 or 
UB-04 (for hospitals), an electronic or paper-based bill that includes 
required data elements (for pharmacies) or other form as warranted, and 
submit the form or bill promptly to OWCP.
    (b) The provider shall identify each service performed using the 
Physician's Current Procedural Terminology (CPT) code, the Healthcare 
Common Procedure Coding System (HCPCS) code, the National Drug Code 
(NDC) number, or the Revenue Center Code (RCC), with a brief narrative 
description. OWCP has discretion to determine which of these codes may 
be utilized in the billing process. OWCP also has the authority to 
create and supply specific procedure codes that will be used by OWCP to 
better describe and allow specific payments for special services. These 
OWCP-created codes will be issued to providers by OWCP as appropriate 
and may only be used as authorized by OWCP. For example, a physician 
conducting a referee or second opinion examination as described in 
Sec. Sec.  30.410 through 30.412 will be furnished an OWCP-created 
code. A provider may not use an OWCP-created code for other types of 
medical examinations or services. When no code is submitted to identify 
the services performed, the bill will be returned to the provider and/
or denied.
    (c) For professional charges billed on Form OWCP-1500 or CMS-1500, 
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 or covered illness is necessary for more than 30 days.
    (1)(i) Hospitals shall submit charges for both inpatient and 
outpatient medical and surgical treatment or supplies promptly to OWCP 
on Form OWCP-04 or UB-04.
    (ii) OWCP may adopt a Home Health Prospective Payment System 
(HHPPS), as developed and implemented by the Centers for Medicare and 
Medicaid Services (CMS) within HHS for Medicare, while modifying the 
allowable costs under Medicare to account for deductibles and other 
additional costs that are covered by EEOICPA. If adopted, home health 
care providers will be required to submit bills on Form OWCP-04 or UB-
04 and to use Health Insurance Prospective Payment System codes and 
other coding schemes.
    (2) Pharmacies shall itemize charges for prescription medications, 
appliances or supplies on electronic or paper-based bills and submit 
them promptly to OWCP. Bills for prescription medications must include 
all required data elements, including the NDC number 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 
to OWCP. Such charges shall be subject to any applicable OWCP fee 
schedule.
    (d) 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, appropriate and properly billed in 
accordance with accepted industry standards. For example, accepted 
industry standards preclude upcoding billed services for extended 
medical appointments when the employee actually had a brief routine 
appointment, or charging for the services of a professional when a 
paraprofessional or aide performed the service. Also, industry 
standards prohibit unbundling services to charge separately for 
services that should be billed as a single charge. 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 payment 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 
Form

[[Page 72313]]

OWCP-1500 or CMS-1500 (for physicians), Form OWCP-04 or UB-04 (for 
hospitals), or an electronic or paper-based bill that includes required 
data elements (for pharmacies); contain the handwritten or electronic 
signature of the provider when required; and identify the procedures 
using HCPCS/CPT codes, RCCs or NDC numbers. Otherwise, OWCP may deny 
the bill, and the provider must correct and resubmit the bill. The 
decision of OWCP whether to pay a provider's bill is final when issued 
and is not subject to the adjudicatory process described in subpart D 
of this part.


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 provided by a professional due to an 
occupational illness or a covered illness, he or she must submit a 
request for reimbursement on Form OWCP-915, together with an itemized 
bill on Form OWCP-1500 or CMS-1500 prepared by the provider, or Form 
OWCP-04 or UB-04 prepared by the provider, and a medical report as 
provided in Sec.  30.700, to OWCP for consideration.
    (1) The provider of such service shall state each diagnosed 
condition and furnish the applicable ICD-9-CM code, or as revised, 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. If no 
code or description is received, OWCP will deny the reimbursement 
request and correction and resubmission will be required.
    (2) The reimbursement request 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), 
a copy of the employee's credit card receipt or a provider billing form 
indicating a zero balance due.
    (b) If a pharmacy or nursing home provided services for which the 
employee paid, the employee must also use Form OWCP-915 to request 
reimbursement and should submit the request in accordance with the 
provisions of Sec.  30.701(a). Any such request for reimbursement must 
be accompanied by evidence, as described in paragraph (a)(2) of this 
section, that the provider received payment for the service from the 
employee and a statement of the amount paid.
    (c) OWCP may waive the requirements of paragraphs (a) and (b) of 
this section 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 must bear the 
handwritten or electronic signature of the provider when required, 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. OWCP will issue a letter decision on whether to reimburse 
an employee for out-of-pocket medical expenses, and the amount of any 
reimbursement. A claimant who disagrees with OWCP's letter decision may 
request a formal recommended decision and utilize the adjudicatory 
process described in subpart D of this part.
    (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 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 which exceeds the maximum allowable 
charge. The provider that the employee paid, but not the employee, 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 disputed 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 charge 
which 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.
0
53. Revise Sec. Sec.  30.705 through 30.707 to read as follows:


Sec.  30.705  What services are covered by the OWCP fee schedule?

    (a) Payment for medical and other health services, devices and 
supplies furnished by physicians, hospitals and other providers for 
occupational illnesses or covered 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. In the future, OWCP may also decide to 
implement a fee schedule for services provided in nursing homes.
    (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 for professional medical 
services 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 Relative Value Unit 
(RVU) 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 assignment of Geographic Practice Cost Index (GPCI) values which 
represent the relative work, practice expenses and malpractice expenses 
relative to other localities throughout the country; and a monetary 
value assignment (conversion factor) for one unit of value for each 
coded service.


Sec.  30.707  How are payments to providers calculated?

    Payment for a procedure, service or device identified by a HCPCS/
CPT code shall not exceed the amount derived by multiplying the RVU 
values for that procedure by the GPCI values for services in that area 
and by the conversion factor to arrive at a dollar amount assigned to 
one unit in that category of service.
    (a) The ``locality'' which serves as a basis for the determination 
of cost is defined by the Bureau of Census Metropolitan Statistical 
Areas. OWCP

[[Page 72314]]

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 CMS.
    (b) OWCP shall assign the RVUs published by CMS to all services for 
which CMS has made assignments, using the most recent revision. Where 
there are no RVUs assigned to a procedure, OWCP may develop and assign 
any RVUs it considers appropriate. The geographic adjustment factor 
shall be that designated by GPCI values for Metropolitan Statistical 
Areas as devised for CMS and as updated or revised by CMS from time to 
time. OWCP will devise conversion factors for each category of service 
as appropriate using OWCP's processing experience and internal data.
    (c) For example, if the RVUs 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 conversion factor 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 GPCI values for the 
locality times the conversion factor. If the GPCI values 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
0
54. Revise Sec. Sec.  30.709 and 30.710 to read as follows:


Sec.  30.709  How are payments for medicinal drugs determined?

    Unless otherwise specified by OWCP, 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. OWCP may, in its 
discretion, contract for or require the use of specific providers for 
certain medications.
    (a) All prescription medications identified by NDC number 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, 
which will not be affected by the location or type of provider 
dispensing the medication.
    (b) The NDC numbers, the average wholesale prices, and the 
dispensing fee shall be reviewed from time to time and updated as 
necessary.
    (c) With respect to prescribed medications, OWCP may require the 
use of generic equivalents where they are available.


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 Inpatient Prospective 
Payment System (IPPS) devised by CMS. 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 inpatient hospital discharges will be classified according 
to the DRGs prescribed by CMS 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 CMS in the 
form of their IPPS Pricer software program. The software takes into 
consideration the type of facility, census division, actual geographic 
location 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 CMS to determine the specific rate for a hospital 
discharge under their IPPS. 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 CMS's IPPS 
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. Sec.  30.711 through 30.713  [Redesignated as Sec. Sec.  30.712 
through 30.714]

0
55a. Redesignate Sec. Sec.  30.711 through 30.713 as Sec. Sec.  30.712 
through 30.714.
0
55b. Add Sec.  30.711 to read as follows:


Sec.  30.711  How are payments for outpatient medical services 
determined?

    (a) OWCP will pay for outpatient medical services according to 
Ambulatory Payment Classifications (APC) based on the Outpatient 
Prospective Payment System devised by CMS.
    (b) All outpatient medical services will be classified according to 
the APC prescribed by CMS for that service in the form of the 
Outpatient Prospective Payment System Grouper software program. Each 
payment is derived by multiplying the prospectively established scaled 
relative weight for the service's clinical APC by a conversion factor 
to arrive at a national unadjusted payment rate for the APC. The labor 
portion of the national unadjusted payment rate is further adjusted by 
the hospital wage index for the area where payment is being made.
    (c) If a payable service has no assigned APC, the payment will be 
derived from the OWCP Medical Fee Schedule.
    (d) OWCP shall review the pre-determined outpatient hospital rates 
at least once a year, and may adjust any or all components when OWCP 
deems it necessary or appropriate.
0
55c. Revise newly designated Sec. Sec.  30.712 and 30.713 to read as 
follows:


Sec.  30.712  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, and will pay no more than the 
maximum allowable fee for that procedure. If the code is not consistent 
with the medical and other evidence or where no code is supplied, the 
bill will be returned to the provider for correction and resubmission.
    (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. The decision of OWCP to pay less than the 
charged amount is final when issued and is not subject to the 
adjudicatory process described in subpart D of this part.


Sec.  30.713  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.

[[Page 72315]]

    (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 
either 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 a charge in excess of the maximum 
allowable amount set by OWCP. 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 at https://www.dol.gov/owcp/energy/index.htm. Within 30 days of 
receiving the request for reconsideration, the district office shall 
respond in writing stating whether or not an additional amount will be 
allowed as reasonable, considering the evidence submitted.
    (b) If the district office issues a decision that continues to 
disallow a contested amount, the provider may apply to the Regional 
Director of the region with jurisdiction over the district office. The 
application must be filed within 30 days of the date of such decision, 
and it may be accompanied by additional evidence. Within 60 days of 
receipt of such application, the Regional Director shall issue a 
decision in writing stating whether or not an additional amount will be 
allowed as reasonable, considering the evidence submitted. This 
decision is final, and shall not be subject to further review.
0
56. Amend Sec.  30.715 by adding paragraphs (i) and (j) to read as 
follows:


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

* * * * *
    (i) Failed to inform OWCP of any change in their provider status as 
required in Sec.  30.700.
    (j) Engaged in conduct related to care of an employee's 
occupational illness or covered illness that OWCP finds to be 
misleading, deceptive or unfair.
0
57. Amend Sec.  30.716 by adding paragraphs (c) to read as follows:


Sec.  30.716  What will cause OWCP to automatically exclude a physician 
or other provider of medical services and supplies?

* * * * *
    (c) A provider may be excluded on a voluntary basis at any time.
0
58. Revise Sec. Sec.  30.717 through 30.721 to read as follows:


Sec.  30.717  When are OWCP's exclusion procedures initiated?

    (a) Upon receipt of information indicating that a physician, 
hospital or provider of medical services or supplies (hereinafter the 
provider) has or may have engaged in activities enumerated in 
paragraphs (c) through (j) of Sec.  30.715, OWCP will forward that 
information to the Department of Labor's Office of Inspector General 
(DOL OIG) for its consideration. If the information was provided 
directly to DOL OIG, DOL OIG will notify OWCP of its receipt and 
implement the appropriate action within its authority, unless such 
notification will or may compromise the identity of confidential 
sources, or compromise or prejudice an ongoing or potential criminal 
investigation.
    (b) DOL OIG will conduct such action as it deems necessary, and, 
when appropriate, provide a written report as described in paragraph 
(c) of this section to OWCP. OWCP will then determine whether to 
initiate procedures to exclude the provider from participation in the 
EEOICPA program. If DOL OIG determines not to take any further action, 
it will promptly notify OWCP of such determination.
    (c) If DOL OIG discovers reasonable cause to believe that 
violations of Sec.  30.715 have occurred, it shall, when appropriate, 
prepare a written report, i.e., investigative memorandum, and forward 
the report along with supporting evidence to OWCP. The report shall be 
in the form of a single memorandum in narrative form with attachments.
    (1) The report should contain all of the following elements:
    (i) A brief description and explanation of the subject provider or 
providers;
    (ii) A concise statement of the DOL OIG's findings upon which 
exclusion may be based;
    (iii) A summary of the events that make up the DOL OIG's findings;
    (iv) A discussion of the documentation supporting DOL OIG's 
findings;
    (v) A discussion of any other information that may have bearing 
upon the exclusion process; and
    (vi) The supporting documentary evidence including any expert 
opinion rendered in the case.
    (2) The attachments to the report should be provided in a manner 
that they may be easily referenced from the report.


Sec.  30.718  How is a provider notified of OWCP's intent to exclude 
him or her?

    Following receipt of the investigative report, OWCP will determine 
if there exists a reasonable basis to exclude the provider or 
providers. If OWCP determines that such a basis exists, OWCP shall 
initiate the exclusion process by sending the provider a letter, by 
certified mail and with return receipt requested (or equivalent 
services from a commercial carrier), 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 OWCP 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 a decision on exclusion 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 deciding official, to request a formal hearing before an 
administrative law judge;
    (e) A notice that should the provider fail to respond (as described 
in Sec.  30.719) the letter of intent within 60 days of receipt, the 
deciding official may deem the allegations made therein to be true and 
may order exclusion of the provider without conducting any further 
proceedings; and
    (f) The address to where the response from the provider should be 
sent.


Sec.  30.719  What requirements must the provider's response and OWCP's 
decision meet?

    (a) The provider's response 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 respond to the letter of intent 
within 60 days of receipt, the deciding official may deem the 
allegations made therein to be true and may order exclusion of the 
provider.
    (c) The provider may inspect or request copies of information in 
the record at any time prior to the deciding official's decision by 
making such request to OWCP within 20 days of receipt of the letter of 
intent.
    (d) OWCP shall have 30 days to answer the provider's response. That

[[Page 72316]]

answer will be forwarded to the provider, who shall then have 15 days 
to reply. Any response from the provider may be forwarded to DOL OIG, 
should OWCP deem it appropriate, to obtain additional information which 
may be relevant to the provider's response.
    (e) The deciding official shall be the Regional Director in the 
region in which the provider is located unless otherwise specified by 
the Director for Energy Employees Occupational Illness Compensation.
    (f) The deciding official 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 (or equivalent service from a 
commercial carrier). 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 deciding official 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 the presentation of oral argument or evidence; 
and
    (c) 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 deciding official receives a timely request for hearing, 
he or she 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 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 the 
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 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.
    (b) 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.
0
59. Amend Sec.  30.723 by revising paragraph (b) to read as follows:


Sec.  30.723  How will the administrative law judge conduct the hearing 
and issue the recommended decision?

* * * * *
    (b) The administrative law judge shall receive such relevant 
evidence as may be adduced at the hearing. Parties to the hearing are 
the provider and OWCP. 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.
* * * * *
0
60. Revise Sec.  30.724 to read as follows:


Sec.  30.724  How does a recommended decision become final?

    (a) Within 30 days from the date the recommended decision is 
issued, each party may state, in writing, whether the party objects to 
the recommended decision. This written statement should be filed with 
the Director for Energy Employees Occupational Illness Compensation.
    (b) For the purposes of determining whether the written statement 
referred to in paragraph (a) of this section has been timely filed with 
the Director for Energy Employees Occupational Illness Compensation, 
the statement will be considered to be ``filed'' on the date that the 
provider mails it to the Director, as determined by postmark or other 
carrier's date marking, or the date that such written statement is 
actually received by the Director, whichever is earlier.
    (c) Written statements objecting to the recommended decision may be 
filed 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 the Director;
    (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) If a written statement of objection is filed within the 
allotted period of time, the Director for Energy Employees Occupational 
Illness Compensation will review the objection. The Director will 
forward the written objection to DOL OIG, which will have 14 calendar 
days from that date to respond. Any response from DOL OIG will be 
forwarded to the provider, which will have 14 calendar days from that 
date to reply.
    (f) The Director for Energy Employees Occupational Illness 
Compensation will consider the recommended decision, the written record 
and any response or reply received and will then issue a written, final 
decision either upholding or reversing the exclusion.
    (g) If no written statement of objection is filed within the 
allotted period of time, the Director for Energy Employees Occupational 
Illness Compensation will issue a written, final decision accepting the 
recommendation of the administrative law judge.
    (h) The decision of the Director for Energy Employees Occupational 
Illness Compensation shall be final with respect to the provider's 
participation in the program, and shall not be subject to further 
review.
0
61. Amend Sec.  30.725 by revising paragraph (a) to read as follows:


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

    (a) OWCP shall give notice of the exclusion of a physician, 
hospital or

[[Page 72317]]

provider of medical services or supplies to:
    (1) All OWCP district offices;
    (2) CMS;
    (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; and
    (4) The state or local authority responsible for licensing or 
certifying the excluded party.
* * * * *
0
62. Amend Sec.  30.726 by revising paragraph (c) to read as follows:


Sec.  30.726  How can an excluded provider be reinstated?

* * * * *
    (c) A request for reinstatement may be accompanied by a request for 
oral presentation. Oral presentations will be allowed only in unusual 
circumstances where it will materially aid the decision process.
* * * * *
0
63. Amend Sec.  30.800 by revising paragraph (c) to read as follows:


Sec.  30.800  What types of wage-loss are compensable under Part E of 
EEOICPA?

* * * * *
    (c) Whether the employee's inability to earn at least as much as 
his or her average annual wage was due to a covered illness as defined 
in Sec.  30.5(s).
0
64. Amend Sec.  30.801 as follows:
0
a. Revise paragraph (a);
0
b. Redesignate paragraphs (c), (d) and (e) as paragraphs (d), (e) and 
(h), respectively;
0
c. Add paragraph (c);
0
d. Revise newly designated paragraph (e); and
0
e. Add paragraphs (f) and (g).
    The revisions and additions read as follows:


Sec.  30.801  What special definitions does OWCP use in connection with 
Part E wage-loss determinations?

* * * * *
    (a) Average annual wage means 12 times the average monthly wage of 
a covered Part E employee for the 36 months preceding the month during 
which he or she first experienced wage-loss due to exposure to a toxic 
substance at a DOE facility or RECA section 5 facility (referred to as 
the ``trigger month''), excluding any months during which the employee 
was unemployed. Because being ``retired'' is not equivalent to being 
``unemployed,'' months during which an employee had no wages because he 
or she was retired will not be excluded from this calculation.
* * * * *
    (c) Month during which the employee was unemployed means any month 
during which the covered Part E employee had $250 (in constant 2013 
dollars) or less in wages unless the month is one during which the 
employee was retired.
* * * * *
    (e) Quarter during which the employee was unemployed means any 
quarter during which the covered Part E employee had $750 (in constant 
2013 dollars) or less in wages unless the quarter is one during which 
the employee was retired.
    (f) Trigger month means the calendar month during which the 
employee first experienced a loss in wages due to exposure to a toxic 
substance at a DOE facility or RECA section 5 facility.
    (g) Wages mean all monetary payments that the covered Part E 
employee earns from his or her regular employment or services that are 
taxed as income by the Internal Revenue Service. Salaries, overtime 
compensation, sick leave, vacation leave, tips, and bonuses received 
for employment services are considered wages under this subpart. 
However, capital gains, IRA distributions, pensions, annuities, 
unemployment compensation, state workers' compensation benefits, 
medical retirement benefits, and Social Security benefits are not 
considered wages.
* * * * *
0
65. Revise Sec.  30.805 to read as follows:


Sec.  30.805  What are the criteria for eligibility for wage-loss 
benefits under Part E?

    (a) In addition to satisfying the general eligibility requirements 
applicable to all Part E claims, a claimant seeking benefits for 
calendar years of qualifying wage-loss has the burden of proof to 
establish each of the following criteria:
    (1) He or she held a job at which he or she earned wages;
    (2) He or she experienced a loss in those wages in a particular 
month (referred to as the ``trigger month'' in this section);
    (3) The wage-loss in the trigger month was caused by the covered 
Part E employee's covered illness, i.e., that he or she would have 
continued to earn wages in the trigger month from that employment but 
for the covered illness;
    (4) His or her average annual wage;
    (5) His or her normal retirement age and the calendar year in which 
he or she would reach that age;
    (6) Beginning with the calendar year of the trigger month, the 
percentage of the average annual wage that was earned in each calendar 
year up to and including the retirement year;
    (7) The number of those calendar years in which the covered illness 
caused the covered Part E employee to earn 50% or less of his or her 
average annual wage; and
    (8) The number of those calendar years in which the covered illness 
caused him or her to earn more than 50% but not more than 75% of his or 
her average annual wage.
    (b) OWCP will discontinue development of a request for wage-loss 
benefits, during which the claimant must meet his or her burden of 
proof to establish each of the criteria listed in paragraph (a) of this 
section, at any point when the claimant is unable to meet such burden.
0
66. Revise Sec.  30.806 to read as follows:


Sec.  30.806  What kind of medical evidence must the claimant submit to 
prove that he or she lost wages due to a covered illness?

     OWCP requires the submission of rationalized medical evidence of 
sufficient probative value to convince the fact-finder that the covered 
Part E employee experienced a loss in wages in his or her trigger month 
due to a covered illness, i.e., medical evidence based on a physician's 
fully explained and reasoned decision (see Sec.  30.805(a)(3)). A loss 
in wages in the trigger month due solely to non-covered illness 
matters, such as a reduction in force or voluntary retirement, is not 
proof of compensable wage-loss under Part E.
0
67. Add Sec.  30.807 to read as follows:


Sec.  30.807  What factual evidence does OWCP use to determine a 
covered Part E employee's average annual wage?

    (a) OWCP may rely on annual or quarterly wage information reported 
to the Social Security Administration to establish a covered Part E 
employee's presumed average annual wage (see Sec.  30.810) and the 
duration and extent of any years of wage-loss that are compensable 
under Part E of the Act (see Sec.  30.811). OWCP may also rely on other 
probative evidence of a covered Part E employee's wages, and may ask 
the claimant for additional evidence needed to make this determination, 
if necessary. For the purposes of making these two types of 
determinations, OWCP will consider all monetary payments that the 
covered Part E employee received as wages (see Sec.  30.801(g)).
    (b) A claimant who disagrees with the evidence OWCP has obtained 
under paragraph (a) of this section and alleges a different average 
annual wage for the covered Part E employee, or that there was a 
greater duration or extent of wage-loss, may submit records that were

[[Page 72318]]

produced in the ordinary course of business due to the employee's 
employment to rebut that evidence, to the extent that such records are 
determined to be authentic by OWCP. The average annual wage and/or 
wage-loss of the covered Part E employee will then be determined by 
OWCP in the exercise of its discretion.
0
68. Amend Sec.  30.810 by revising paragraphs (a), (b), (c), and (d) to 
read as follows:


Sec.  30.810  How will OWCP calculate the average annual wage of a 
covered Part E employee?

* * * * *
    (a) Aggregate the wages for the 36 months that preceded the trigger 
month, excluding any month during which the employee was unemployed;
    (b) Add any additional wages earned by the employee during those 
same months as evidenced by records described in Sec.  30.807;
    (c) Divide the sum of paragraphs (a) and (b) of this section by 36, 
less the number of months during which the employee was unemployed; and
    (d) Multiply this figure by 12 to calculate the covered Part E 
employee's average annual wage.
0
69. Amend Sec.  30.811 as follows:
0
a. Revise paragraph (a);
0
b. Remove paragraph (b); and
0
c. Redesignate paragraphs (c) and (d) as paragraphs (b) and (c), 
respectively.
    The revision reads as follows:


Sec.  30.811  How will OWCP calculate the duration and extent of a 
covered Part E employee's initial period of compensable wage-loss?

    (a) To determine the initial calendar years of wage-loss, OWCP will 
use the evidence it receives under Sec. Sec.  30.805 through 30.807 to 
compare the calendar-year wages for the covered Part E employee, as 
adjusted, with the average annual wage determined under Sec.  30.810 
for each calendar year beginning with the calendar year that includes 
the trigger month, and concluding with the last calendar year of wage-
loss prior to the submission of the claim or the calendar year in which 
the employee reached normal retirement age (as defined in Sec.  
30.801(b)), whichever occurred first.
* * * * *
0
70. Amend Sec.  30.901 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  30.901  How does OWCP determine the extent of an employee's 
impairment that is due to a covered illness contracted through exposure 
to a toxic substance at a DOE facility or a RECA section 5 facility, as 
appropriate?

    (a) OWCP will determine the amount of impairment benefits to which 
an employee is entitled based on one or more impairment evaluations 
submitted by physicians. An impairment evaluation shall contain the 
physician's opinion on the extent of whole person impairment of all 
organs and body functions of the employee that are compromised or 
otherwise affected by the employee's covered illness or illnesses, 
which shall be referred to as an ``impairment rating.''
    (b) In making impairment benefit determinations, OWCP will only 
consider medical reports from physicians who are certified by the 
relevant medical board and who satisfy any additional criteria 
determined by OWCP to be necessary to qualify to perform impairment 
evaluations under Part E, including any specific training and 
experience related to particular conditions and other objective 
factors.
* * * * *
0
71. Revise Sec.  30.902 to read as follows:


Sec.  30.902  How will OWCP calculate the amount of the award of 
impairment benefits that is payable under Part E?

    (a) OWCP will multiply the percentage points of the impairment 
rating by $2,500 to calculate the amount of the award.
    (b) An employee's impairment rating may be comprised of multiple 
impairments of organs and body functions due to multiple covered 
illnesses. If an impairment award is payable based on a whole person 
impairment rating in which at least one of the impairments is subject 
to a reduction under Sec. Sec.  30.505(b) and/or 30.626, OWCP will 
reduce the impairment award proportionately.
0
72. Amend Sec.  30.908 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  30.908  How will the FAB evaluate new medical evidence submitted 
to challenge the impairment determination in the recommended decision?

* * * * *
    (b) The employee shall bear the burden of proving that the 
additional impairment evaluation submitted is more probative than the 
evaluation relied upon by the district office to determine the 
employee's recommended impairment rating.
    (c) If an employee submits an additional impairment evaluation that 
differs from the impairment evaluation relied upon by the district 
office, the FAB will review all relevant evidence of impairment in the 
record, and will base its determinations regarding impairment upon the 
evidence it considers to be most probative. The FAB will determine the 
impairment rating after it has evaluated all relevant evidence and 
argument in the record.

    Signed at Washington, DC, this 20th day of October, 2015.
Leonard J. Howie III,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2015-27121 Filed 11-17-15; 8:45 am]
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