Energy Employees Compensation
Additional Independent Oversight and Transparency Would Improve Program's Credibility Gao ID: GAO-10-302 March 22, 2010Congress passed the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) in 2000 to compensate Department of Energy (Energy) workers for illnesses stemming from exposure to hazardous substances while working in the atomic weapons industry. Part B of the act provides a lump-sum payment and medical coverage for certain illnesses, while Part E compensates for impairments and lost wages resulting from exposure to toxins. The Department of Labor (Labor) adjudicates all claims and is assisted by the National Institute for Occupational Safety and Health (NIOSH) and Energy. GAO examined (1) claim-processing time, (2) costs of administering the program, (3) extent to which there are quality controls to ensure that claim determinations are supported with objective and scientific information, and (4) actions taken by agencies to promote program transparency for claimants. GAO obtained data on cost and claims processing from Labor and NIOSH, and interviewed agency officials, experts, and claimant advocates.
Cases that do not require dose reconstruction can take about a year to adjudicate, but those that do can take a total of 3 or more years. Such cases require an extensive scientific process to "reconstruct'" the historical evidence on exposure, and this has made dose reconstruction the primary reason for lengthier processing times. The availability of claimant data and the need to rework some cases in view of new claimant information or changes to scientific methodologies involved in determining exposures can also affect processing times. Meanwhile, Labor and NIOSH have each developed ways to expedite case processing. The administrative cost of EEOICPA reflects the requirements of a complex, science-based adjudication process. In 2008 this cost amounted to $106 million for the Part B program and almost $57 million for Part E. Administrative costs have averaged about 20 percent of the total program cost for Part B and 14 percent for Part E. A substantial factor underlying the greater administrative cost of the Part B program is dose reconstruction, which was required for about a third of all Part B cases. Quality controls in the form of multiple internal reviews are in place for both Part B and E programs. However, only the Part B program employs external expert reviews, required by statute, which provide independent verification of the work. EEOICPA does not specifically require external review of the Part E program. As a result, Labor's processes related to the adjudication of Part E cases, in particular, are not informed by any independent expertise outside the agency' s purview. For example, though Labor employs a contractor and a small team of internal experts to update its Part E database of work sites, toxins, and their associated diseases, the composition of this database lacks external review to ensure that it is as comprehensive and scientifically sound as possible. In addition, there is no oversight or independent review to ensure the quality of consultant physicians' work for Part E. The agencies have taken various steps to assist claimants and make more program information public; however, program transparency remains somewhat limited, in part because of national security considerations. NIOSH has worked with Energy to clear information for publication in the site profiles developed for use in reconstructing doses for Part B cancer claims. However, Labor has not taken similar steps with Energy to release data in the site exposure matrix used to adjudicate Part E claims. Meanwhile, NIOSH has established an ombudsman to help Part B claimants with their claims. While the act established an ombudsman within the Department of Labor, GAO found that Labor does not respond publicly to his annual reports on claimant concerns. As a result, claimants have little knowledge that their concerns are heard or that they are being addressed.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-10-302, Energy Employees Compensation: Additional Independent Oversight and Transparency Would Improve Program's Credibility
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
March 2010:
Energy Employees Compensation:
Additional Independent Oversight and Transparency Would Improve
Program's Credibility:
GAO-10-302:
GAO Highlights:
Highlights of GAO-10-302, a report to congressional requesters.
Why GAO Did This Study:
Congress passed the Energy Employees Occupational Illness Compensation
Program Act (EEOICPA) in 2000 to compensate Department of Energy
(Energy) workers for illnesses stemming from exposure to hazardous
substances while working in the atomic weapons industry. Part B of the
act provides a lump-sum payment and medical coverage for certain
illnesses, while Part E compensates for impairments and lost wages
resulting from exposure to toxins. The Department of Labor (Labor)
adjudicates all claims and is assisted by the National Institute for
Occupational Safety and Health (NIOSH) and Energy. GAO examined (1)
claim-processing time, (2) costs of administering the program, (3)
extent to which there are quality controls to ensure that claim
determinations are supported with objective and scientific
information, and (4) actions taken by agencies to promote program
transparency for claimants. GAO obtained data on cost and claims
processing from Labor and NIOSH, and interviewed agency officials,
experts, and claimant advocates.
What GAO Found:
Cases that do not require dose reconstruction can take about a year to
adjudicate, but those that do can take a total of 3 or more years.
Such cases require an extensive scientific process to "reconstruct"
the historical evidence on exposure, and this has made dose
reconstruction the primary reason for lengthier processing times. The
availability of claimant data and the need to rework some cases in
view of new claimant information or changes to scientific
methodologies involved in determining exposures can also affect
processing times. Meanwhile, Labor and NIOSH have each developed ways
to expedite case processing.
The administrative cost of EEOICPA reflects the requirements of a
complex, science-based adjudication process. In 2008 this cost
amounted to $106 million for the Part B program and almost $57 million
for Part E. Administrative costs have averaged about 20 percent of the
total program cost for Part B and 14 percent for Part E. A substantial
factor underlying the greater administrative cost of the Part B
program is dose reconstruction, which was required for about a third
of all Part B cases.
Quality controls in the form of multiple internal reviews are in place
for both Part B and E programs. However, only the Part B program
employs external expert reviews, required by statute, which provide
independent verification of the work. EEOICPA does not specifically
require external review of the Part E program. As a result, Labor‘s
processes related to the adjudication of Part E cases, in particular,
are not informed by any independent expertise outside the agency‘ s
purview. For example, though Labor employs a contractor and a small
team of internal experts to update its Part E database of work sites,
toxins, and their associated diseases, the composition of this
database lacks external review to ensure that it is as comprehensive
and scientifically sound as possible. In addition, there is no
oversight or independent review to ensure the quality of consultant
physicians‘ work for Part E.
The agencies have taken various steps to assist claimants and make
more program information public; however, program transparency remains
somewhat limited, in part because of national security considerations.
NIOSH has worked with Energy to clear information for publication in
the site profiles developed for use in reconstructing doses for Part B
cancer claims. However, Labor has not taken similar steps with Energy
to release data in the site exposure matrix used to adjudicate Part E
claims. Meanwhile, NIOSH has established an ombudsman to help Part B
claimants with their claims. While the act established an ombudsman
within the Department of Labor, GAO found that Labor does not respond
publicly to his annual reports on claimant concerns. As a result,
claimants have little knowledge that their concerns are heard or that
they are being addressed.
What GAO Recommends:
To strengthen quality controls and improve program transparency, GAO
recommends that Labor provide for more external review, respond
publicly to reports by its Ombudsman, and increase public access to
site exposure data it uses to adjudicate Part E claims. Meanwhile,
Congress may wish to consider amending EEOICPA to create an
independent review board for the Part E program.
View [hyperlink, http://www.gao.gov/products/GAO-10-302] or key
components. For more information, contact Andrew Sherrill at (202) 512-
7215 or sherrilla@gao.gov.
[End of section]
Contents:
Letter:
Background:
Cases Can Require a Year to Adjudicate, but Dose Reconstruction Can
Add 2 or More Years to the Process:
Administrative Costs Reflect Requirements of Science-Based
Adjudication:
Part B Quality Controls Generally Include Internal and Independent
Reviews, while Part E Processes Lack Independent and Expert Review:
Despite Agencies' Actions, EEOICPA Program Transparency Remains
Somewhat Limited:
Conclusions:
Recommendations for Executive Action:
Matter for Congressional Consideration:
Agency Comments and our Evaluation:
Appendix I: Objective, Scope, and Methodology:
Appendix II: Labor and NIOSH's Claim-Processing Steps:
Appendix III: NIOSH and Labor's Performance Measures:
Appendix IV: Comments from the Department of Energy:
Appendix V: Comments from the Department of Labor:
Appendix VI: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Tables:
Table 1: Comparison of EEOICPA Parts B and E Eligibility and Benefits:
Table 2: Approval Rates for EEOICPA Cases as of January 28, 2010:
Table 3: Average Days Added to Processing Times for Cases Labor
Returned to NIOSH for Rework:
Table 4: Part B Benefits Paid and Direct Administrative Costs:
Table 5: Part E Benefits Paid and Direct Administrative Costs:
Table 6: NIOSH Performance Measures for Fiscal Year 2009:
Table 7: Department of Labor Performance Measures in 2008:
Figures:
Figure 1: Claims That Require Dose Reconstructions Are Processed
Differently than Claims That Do Not:
Figure 2: Processing Times for Cases Decided in Fiscal Year 2008:
Figure 3: Average Processing Times for Part B and Part E Cases by Year
Decided, Fiscal Years 2002-2008:
Figure 4: NIOSH Efficiency Process Using Rough Estimates for Dose
Reconstructions:
Abbreviations:
AFL-CIO: American Federation of Labor-Congress of Industrial
Organizations:
ANWAG: Alliance of Nuclear Worker Advocacy Groups:
EEOICPA: Energy Employees Occupational Illness Compensation Program
Act:
FAB: Final Adjudication Branch:
GPRA: Government Performance and Results Act:
IG: inspector general:
NIOSH: National Institute for Occupational Safety and Health:
OMB: Office of Management and Budget:
PART: Program Assessment Rating Tool:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
March 22, 2010:
Congressional Requesters:
For the last several decades, the Department of Energy (Energy) and
its predecessor agencies[Footnote 1] and contractors employed hundreds
of thousands of individuals in secret and dangerous work in nuclear
weapons production in over 350 facilities in almost every state in the
United States, such as the Rocky Flats Plant in Colorado and the Los
Alamos National Laboratory in New Mexico. Over the years, especially
early on, many workers were unknowingly exposed to toxic substances,
including radioactive and other hazardous materials, and subsequently
developed serious illnesses, including cancer and lung disease. To
provide compensation to these workers, Congress enacted the Energy
Employees Occupational Illness Compensation Program Act of 2000
(EEOICPA). The Department of Labor (Labor) has the primary
responsibility for administering this program, which provides for
medical benefits, lost wage replacement, and/or onetime financial
compensation. In addition, the Department of Health and Human
Services, through its National Institute for Occupational Safety and
Health (NIOSH), and Energy each have assigned duties under the act.
[Footnote 2] As of January 2010, Labor had awarded compensation for
work-related illnesses for over 56,000 claims to workers or their
survivors totaling over $5 billion.
Within a few years of EEOICPA's enactment, claimants and Members of
Congress began raising questions about implementation of the program.
Instead of receiving timely compensation for their work-related
illnesses, claimants have reported difficulty navigating the program,
years of delay, and perceived inconsistencies in the adjudication
process. Meanwhile, several articles critical of the program have
appeared in the press. Following a highly critical series of articles
in the Denver, Colorado, Rocky Mountain News in 2008, 17 Members of
Congress asked GAO to review how EEOICPA is being implemented. We
reviewed the (1) average claim-processing times and factors that
affect these, (2) costs of administering the program, (3) extent to
which quality controls are in place to help ensure that claims
determinations are supported with objective and scientific
information, and (4) actions agencies have taken to make the program
more transparent for claimants.
To determine the time it takes to process claims and associated costs,
we obtained reports on processing times for different types of claims,
administrative costs, and performance measurement from Labor, NIOSH,
and Energy. To determine which factors affected processing times, we
obtained claim-processing times by type of claim to ascertain whether
there were significant and consistent differences between the
processing times based on the type of claim. We interviewed relevant
officials regarding the reliability of the data, checked for outliers
and inconsistencies, and determined that their claims management data
were sufficiently reliable for the purposes of this report. We did not
independently verify the accuracy of the data from any agency. To
assess the quality controls and transparency of the claims
adjudication process for our third and fourth objectives, we reviewed
EEOICPA, relevant regulations, and agency technical and procedural
guidance for EEOICPA; interviewed officials from Labor, Energy, and
NIOSH; and interviewed members of the Advisory Board on Radiation and
Worker Health, the presidentially appointed board that oversees the
scientific validity of NIOSH's work, and its contractor. We obtained
additional expert opinion on technical issues and further insight on
topics of concern by interviewing representatives of the occupational
and environmental health and other medical professions; claimant
ombudsmen with Labor, NIOSH, and the state of New Mexico; and claimant
representatives from a nationwide coalition of grassroots advocacy
groups.[Footnote 3]
We conducted this performance audit from November 2008 to March 2010
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives. For more
information on our scope and methodology, see appendix I.
Background:
EEOICPA, as amended, provides compensation and wage replacement for
Energy workers employed over the last several decades in the
production of U.S. nuclear weapons who developed illnesses related to
their exposure to radiation and many other toxins.[Footnote 4] During
and shortly after World War II, U.S.-sponsored nuclear weapons
development and production included a small network of scattered,
privately owned facilities. During the Cold War, this network expanded
into a complex of as many as 365 industrial sites and research
laboratories throughout the country that employed more than 600,000
workers in the production and testing of nuclear weapons.
Some of the production sites were owned by Energy and its predecessor
agencies and operated by contractors; others were privately owned but
operated under contract with Energy; still others provided Energy and
its contractors with needed services and supplies. Workers in these
facilities used manufacturing processes that involved handling very
dangerous materials, and they often were provided inadequate
protection from exposure to radioactive elements, although protective
measures have increased over time. Because of national security
concerns, they also worked under great secrecy, often facing severe
criminal penalties for breaches of secrecy. Workers were also often
given minimal information about the materials with which they worked
and the potential health consequences of their exposure to the
materials. Active production of nuclear weapons was halted at the end
of the Cold War, and federally sponsored cleanup of some of these
sites has been under way since that time. Other sites remain active
for research, storage, uranium production, and weapons assembly and
disassembly. As noted by Congress in EEOICPA, it had been Energy's
long-standing policy to help its contractors litigate claims filed by
their employees for state workers' compensation when they became ill.
[Footnote 5] As a result of the many years of secrecy, the lack of
information, and the years of denial that their conditions were
related to exposure, many claimants find it difficult today to trust
that the federal government is fairly evaluating their claims under
the program established by EEOICPA.
Structure of the Compensation Programs:
EEOICPA established two compensation programs: Part B and Part E.
[Footnote 6] While both pay for future medical expenses, there are
significant distinctions. Part B of the act provides for a onetime
payment of $150,000 to Energy employees or their survivors as well as
certain contractor employees or their survivors, while Part E of the
act covers Energy contractor employees or their spouses and dependent
children and replaces lost wages and compensates for impairment up to
$250,000.[Footnote 7] Each program also covers different types of
exposure: The Part B program covers those who have developed cancer as
the result of exposure to radiation and lung diseases resulting from
exposure to beryllium and silica. The Part E program compensates for
illnesses, including cancer, that result from exposure to toxic
substances. Table 1 summarizes covered workers and illnesses, and the
benefits paid under each program.
Table 1: Comparison of EEOICPA Parts B and E Eligibility and Benefits:
Part B:
Covered employees:
* Energy employees;
* Energy contractor or subcontractor employees;
* Employees of atomic weapons employers;
* Employees of beryllium vendors;
* Uranium miners, millers, and ore transporters awarded under Section
5 of the Radiation Exposure Compensation Act;
Covered survivors:
* Next of kin (in order of precedence);
- Spouse;
- Children;
- Parents;
- Grandchildren;
- Grandparents;
Covered illnesses:
* Cancer related to radiation;
* Chronic beryllium disease[A];
* Chronic silicosis[A];
* Beryllium sensitivity[B];
Compensation:
* $150,000 lump sum ($50,000 if awarded payment under Section 5 of the
Radiation Exposure Compensation Act);
* Plus medical coverage for future medical expenses related to the
illness.
Part E:
Covered employees:
* Energy contractor employees;
* Uranium miners, millers, and ore transporters covered under Section
5 of the Radiation Exposure Compensation Act;
Covered survivors:
* Spouse;
* Children;
- Under 18 at time of death,;
- Under 23 and enrolled full-time in school, or;
- Incapable of self-support;
Covered illnesses:
* Illnesses related to exposure to toxic substances at Energy weapons
facilities;
Compensation:
* Wage loss and impairment up to $250,000;
* Plus medical coverage for covered illnesses.
Source: GAO analysis of the EEOICPA statute.
[A] Chronic beryllium disease primarily affects the lungs and is
caused by people inhaling beryllium dust or fumes. Chronic silicosis
is a lung disease caused by overexposure to crystalline silica, a
major component of sand, rock, and mineral ores. Chronic silicosis is
covered only for individuals who worked in nuclear test tunnels in
Nevada and Alaska.
[B] There is no monetary compensation for beryllium sensitivity. Only
medical monitoring is provided.
[End of table]
Agency Roles in Implementing EEOICPA:
Labor adjudicates claims for compensation under the Part B and Part E
programs. NIOSH conducts the technical and scientific research to
support the adjudication of radiation-related cancer claims under Part
B. Energy provides administering agencies and claimants with
information relevant to worker exposures. EEOICPA required the
President to establish the Advisory Board on Radiation and Worker
Health and appoint members who reflect a balance of scientific,
medical, and worker perspectives.[Footnote 8] The board advises the
Department of Health and Human Services on the scientific quality and
validity of NIOSH's work and has retained a contractor to provide
technical expertise and support. In a prior report, we found that
issues pertaining to the Part B Advisory Board's funding structure,
appointment process, and staff support presented challenges to
independence, leaving the board vulnerable to potential outside
influence. We identified various options to enhance the board's
independence in each area for congressional consideration.[Footnote 9]
Labor's adjudication of claims entails first determining whether a
claimant meets the eligibility requirements of the act, such as
whether the claimant worked in a facility covered by the act or meets
the definition of a covered survivor. Then Labor reviews evidence of
the worker's employment history, exposure to radiation or other toxic
substances, and medical records. To determine whether the claimed
illness is compensable, Labor must find that the illness is related to
radiation or toxic exposure during employment at a covered facility.
For radiation-related cancer claims, Labor relies on NIOSH's estimates
of the type and level of radiation exposure received by the worker and
the associated radiation dose to each organ affected by cancer. This
extensive process of estimating the radiation dose to each affected
organ is referred to as dose reconstruction. The radiation dose
associated with cancer risk depends on many variables: the type of
radiation, dose pathway (for example, inhalation of particles, contact
with skin, or ingestion of contaminated food or water), and the way
radiation interacts with each organ or body system. Research to
determine the radiation levels to which an individual worker was
exposed requires gathering information such as the site's radiation
level readings over time, readings from a worker's monitoring badge
(if available), records of claimant interviews about working
conditions, and work-required medical screenings. For cases in which
NIOSH cannot fully characterize the likely level of radiation
exposure, it estimates the level of exposure using reasonable
scientific assumptions that give the claimant the benefit of the doubt.
Since nuclear weapons research and production occurred over several
decades and at sites throughout the country, many of which are now
defunct, Labor, with assistance from NIOSH and Energy, must research
and inventory these sites for the evidence needed to review workers'
claims. Much of this evidence is maintained at the individual
facilities where the work took place. Energy maintains and catalogs
records from these facilities and provides experts to assist Labor and
NIOSH in collecting this information. NIOSH has prepared detailed
facility-specific information in site profiles, which describe the
buildings, manufacturing, and other processes used, and the types of
radioactive elements at each major covered facility.
Despite these research efforts, there are groups of workers for whom
it is not feasible to estimate the radiation doses with sufficient
accuracy. In such cases, the act provides that workers may be
designated as part of the Special Exposure Cohort, qualifying them for
compensation without dose reconstruction if they have 1 of 22
specified types of cancer and meet certain other requirements.
[Footnote 10] NIOSH may recommend additions to the Special Exposure
Cohort when, in its research, it determines that site records are
inadequate to support dose reconstruction with sufficient accuracy.
Claimants or their representatives may petition to add classes of
workers to the Special Exposure Cohort if they identify a class of
workers for whom dose reconstruction is not feasible. If a petition
includes all required information, NIOSH will evaluate the petition,
assessing the sufficiency and quality of available information and
either proposing methods of reconstructing the dose or agreeing that
the workers should be treated as part of the Special Exposure Cohort.
The Advisory Board reviews the petition and NIOSH's evaluation and
advises the Secretary of Health and Human Services on whether another
class of workers should be added.
To determine eligibility for Part E compensation for illnesses
resulting from exposure to toxic substances, Labor relies heavily on a
complex database of information that, with the help of a contractor,
has been drawn from the facility records and toxicology research.
Known as the site exposure matrix, it specifies a myriad of site-
specific information, such as what toxins were present at each
facility, job descriptions, and production processes.[Footnote 11]
Moreover, it cross-references the toxins known to be at each site with
diseases for which there is an established link. This portion of the
site exposure matrix was drawn from the National Library of Medicine's
database of hazardous toxins and associated diseases--known as the Haz-
Map. When records are unavailable or insufficient to determine whether
workers were exposed to toxins (other than radiation), there is no
process similar to the Special Exposure Cohort petition process for
radiation-related cancer claims.
Part B Claim Processing:
Upon receipt of a claim, Labor first determines whether the Part B
claimant meets the eligibility requirements for any one of the
following types of claims: Radiation Exposure Compensation Act Section
5 supplement, chronic beryllium disease, chronic silicosis, or Special
Exposure Cohort cancer claims. If so, these claims are adjudicated
exclusively by Labor (see figure 1). All radiation-related cancer
claims not covered by the Special Exposure Cohort are referred to
NIOSH for dose reconstruction.
Figure 1: Claims That Require Dose Reconstructions Are Processed
Differently than Claims That Do Not:
[Refer to PDF for image: illustration]
Labor receives claims and determines whether the claimant meets the
eligibility requirements;
Claims examiner sorts claims by type;
1) Radiation Exposure Compensation Act: Section 5; Beryllium;
Silicosis; Special Exposure Cohort claims;
- Labor develops a recommended decision;
2) Claims involving cancers not covered by Special Exposure Cohort
provisions;
Dose Reconstruction:
Labor refers this type of claim to NIOSH for dose reconstruction;
NIOSH estimates the employee‘s level of exposure to radiation;
NIOSH submits dose reconstruction to Labor;
Labor develops a recommended decision.
Source: GAO analysis of Labor and NIOSH claim processes.
[End of figure]
Using scientific and other collected information, NIOSH performs a
dose reconstruction and provides the results to Labor. NIOSH's dose
reconstruction estimates the amount (dose) of radiation to the organ
affected by the worker's cancer, erring on the side of higher exposure
and greater cancer risk whenever specific exposure data are limited.
Labor uses the dose reconstruction results to determine whether it is
at least as likely as not that the worker's cancer is related to his
or her employment at a covered Energy or contractor facility.[Footnote
12] As required by EEOICPA, Labor uses regulatory guidelines developed
by the Department of Health and Human Services to make that
determination.[Footnote 13] Those guidelines provide that a cancer was
at least as likely as not related to radiation exposure incurred by
the worker in the performance of duty if the probability of causation
is estimated to be 50 percent or more.[Footnote 14] See appendix II
for detailed information about the claim-processing steps used by
Labor and NIOSH.
Part E Claim-Processing:
Part E claims are adjudicated by Labor using information it collects
in the site exposure matrix on the types of toxic substances at Energy
facilities.[Footnote 15] This information is analyzed by claims
examiners, and sometimes with the assistance of medical consultants,
to determine if it is at least as likely as not that exposure to a
toxic substance at a covered Energy facility is considered a
significant factor in the development of the illness.[Footnote 16]
Labor's claims examiners refer to the site exposure matrix for a
historical description of the types of industrial toxins present and
the processes in which they were utilized, as well as information on
known links between these toxins and occupational illness documented
in peer-reviewed professional journals. When considering
compensability under Part E for radiation-related cancers, Labor
generally uses the dose reconstruction process and the NIOSH
probability of causation regulatory guidelines it uses for Part B
claims.
Cases versus Claims:
Since the inception of the EEOICPA programs, over 188,000 claims have
been filed by either workers or their survivors. These claims
represent about 129,000 actual worker cases--because there is more
than one survivor involved in some cases. Labor estimates that the
claims it has handled to date represent closer to 75,000 individual
workers. Therefore, we provide data for the numbers of cases
processed, which refers to the individual workers represented by one
or more claims.
As shown in table 2, Labor had adjudicated approximately 89 percent of
EEOICPA cases filed as of January 2010, of which just over 39 percent
were approved. Approval rates excluding cases that did not meet
initial eligibility requirements are over 56 percent.
Table 2: Approval Rates for EEOICPA Cases as of January 28, 2010:
Part B:
Cases filed: 69,039;
Cases processed (percent): 62,526 (91%); Includes 48,036 final
decisions plus 14,490 noncovered[A](21% of cases filed);
Cases approved (percent): 27,298 (40%).
Part E:
Cases filed: 60,364;
Cases processed (percent): 52,553 (87%); Includes 41,605 final
decisions plus 10,948 noncovered[A](18% of cases filed);
Cases approved (percent): 22,646 (38%).
Source: GAO analysis of Labor data.
[A] Noncovered cases are those for which the medical condition claimed
is not one of the covered occupational illnesses (applies only to Part
B cases), the employee's covered employment has not been established
(Parts B and E), or a survivor did not meet eligibility requirements
(Part E). Ineligible survivors constitute the majority of the
noncovered cases under Part E. Claims that do not have a covered
occupational illness constitute the majority of the noncovered cases
under Part B.
[End of table]
As part of a November 2008 report, Labor's Office of Inspector General
reviewed a sample of 140 claims that had received final decisions or
were administratively closed from October 2005 through June 2007 and
determined that Labor issued claim decisions that complied with
applicable federal laws and regulations and were based appropriately
on the evidence supplied by or obtained on behalf of claimants.
[Footnote 17]
Cases Can Require a Year to Adjudicate, but Dose Reconstruction Can
Add 2 or More Years to the Process:
Cases that do not require dose reconstruction can take about a year to
adjudicate, but those that do can take a total of 3 or more years, and
other factors can delay processing even further. Dose reconstruction
is the primary factor affecting processing time, and changes to the
information provided or the scientific methods used to determine
compensability can lengthen the processing time for any case requiring
dose reconstruction. The availability of claimant information and
agency workload also affect the processing times. Labor and NIOSH have
developed strategies to expedite case processing and performance
measures to monitor timeliness. These efforts have helped reduce the
case backlog and shorten processing times of certain steps in the
claims cycle.
Dose Reconstruction Is a Key Determinant of Processing Time--Adding,
on Average, 2 or More Years:
Cases requiring dose reconstruction, which constitute a third of all
Part B cases, have taken an average of 3 or more years to process.
[Footnote 18] Since determining the causation of cancer requires
extensive data collection and scientific estimates, dose
reconstruction is a lengthy and meticulous scientific process. Dose
reconstruction is not needed for Part B beryllium or silicosis cases
or Part E cases that do not involve radiation-related cancers;
therefore, the processing times for these cases are much shorter.
According to data from Labor, Part B cases requiring dose
reconstruction for which final decisions were issued in fiscal year
2008 took 1,132 days, on average--just over 3 years--to process,
compared with 377 days for non-dose reconstruction Part B cases for
which final decisions were issued in fiscal year 2008.[Footnote 19] By
contrast, Part E cases for which final decisions were issued in 2008
averaged 351 days to process. Similarly, minimum and maximum
processing times were also greater for those cases that underwent dose
reconstruction compared with those that did not (see figure 2).
Figure 2: Processing Times for Cases Decided in Fiscal Year 2008:
[Refer to PDF for image: horizontal bar graph]
Part B (With dose reconstruction):
Low: 161 days;
High: 2,591 days;
Average 1,132 days;
Median 932 days.
Part B (Without dose reconstruction):
Low: 7 days;
High: 2,512 days;
Average 377 days;
Median 232 days.
Part E[A]:
Low: 9 days;
High: 1,184 days;
Average 351 days;
Median 252 days.
Source: GAO analysis of data from the Department of Labor‘s Energy
Case Management System for claims receiving final decisions in fiscal
year 2008.
[A] While some Part E cases require dose reconstruction, those cases
are not included in the figure. Labor does not report on Part E cases
requiring dose reconstruction because there is no consistent
calculation available.
[End of figure]
Processing times were shorter earlier in the program and subsequently
became longer. This was due, in part, to the fact that NIOSH chose to
process simpler cases first in order to expedite them, which
effectively postponed the handling of cases that were likely to be
more difficult. As a result, the processing time for all Part B cases
was greatest in 2006 and has only slightly decreased since then (see
figure 3). On the other hand, processing time for cases under Part E
has gradually increased since the program was implemented in 2005.
Figure 3: Average Processing Times for Part B and Part E Cases by Year
Decided, Fiscal Years 2002-2008:
[Refer to PDF for image: vertical bar graph]
Year: 2002;
Average days to process: Part B cases without dose reconstruction: 177;
Average days to process: Part B cases with dose reconstruction: 254.
Year: 2003;
Average days to process: Part B cases without dose reconstruction: 271;
Average days to process: Part B cases with dose reconstruction: 412.
Year: 2004;
Average days to process: Part B cases without dose reconstruction: 228;
Average days to process: Part B cases with dose reconstruction: 753.
Year: 2005;
Average days to process: Part B cases without dose reconstruction: 298;
Average days to process: Part B cases with dose reconstruction: 977;
Average days to process: Part E cases: 42.
Year: 2006;
Average days to process: Part B cases without dose reconstruction: 422;
Average days to process: Part B cases with dose reconstruction: 1,223;
Average days to process: Part E cases: 165.
Year: 2007;
Average days to process: Part B cases without dose reconstruction: 410;
Average days to process: Part B cases with dose reconstruction: 1,105;
Average days to process: Part E cases: 324.
Year: 2008;
Average days to process: Part B cases without dose reconstruction: 377;
Average days to process: Part B cases with dose reconstruction: 1,132;
Average days to process: Part E cases: 351.
Source: Department of Labor‘s Energy Case Management System for Part B
claims receiving final decisions from fiscal years 2002 through 2008,
and Part E claims receiving final decisions from fiscal years 2005
through 2008.
Note: Labor calculated the average processing times from the date the
case was filed to the date Labor issued its final decision for the
case. If there was more than one filing date for a given worker, Labor
used the first final decision. These times were calculated based on
the year in which a final decision was reached, rather than the year
the case was filed. While some Part E cases require dose
reconstruction, those cases are not included in the table. Labor does
not report on Part E cases requiring dose reconstruction because there
is no consistent calculation available.
[End of figure]
Though Special Exposure Cohort cases are not subject to dose
reconstruction, cases processed in fiscal year 2008 nonetheless took
almost 2½ years to process, on average. Moreover, total processing
times for cases identified for inclusion in the Special Exposure
Cohort in 2008 varied widely, from a minimum of 3 days to as much as
2,584 days--just over 7 years. One reason that cases were in process
for several years may have been that they were filed before the case
became a part of the Special Exposure Cohort. As such, the case would
have been sent to NIOSH to undergo dose reconstruction before it could
be determined that site or other data needed to complete a dose
reconstruction were insufficient. This determination could have taken
years before the case was designated to the Special Exposure Cohort
and then fast-tracked for adjudication.
Dose Reconstruction Can Be Delayed by the Receipt of New Information
or the Availability of Site Profiles:
Within the scientific process underlying dose reconstruction, there
are several factors that can delay dose reconstruction. For any one
dose reconstruction, NIOSH may complete many steps to gather
information before issuing a final dose reconstruction.[Footnote 20]
While NIOSH tracks time spent on major steps of its process, the
agency does not track time spent on every specific step of the
process. However, NIOSH does track the additional time it takes to
rework dose reconstructions to take into account new information added
to the case in the form of an amendment. Processing amendments adds,
on average, 25 percent more time to the dose reconstruction process,
according to NIOSH.[Footnote 21] Amendments are filed most often when
Labor or claimants identify new information, for example, about
additional cancers, personal data such as a correction in date of
birth or death, or employment information that may affect the
estimated dose. Amendments are filed for about one-third of all cases
requiring dose reconstruction, and about one-fourth of all amended
cases have been amended multiple times, according to NIOSH. Each
subsequent amendment adds more time to the process. For example,
according to data provided by Labor, sending a case to NIOSH a second
time adds, on average, 235 days to the dose reconstruction process, as
shown in table 3.
Table 3: Average Days Added to Processing Times for Cases Labor
Returned to NIOSH for Rework:
Number of times Labor sends case to NIOSH: 1;
Number of cases: 19,112;
Average cumulative days at NIOSH: 701;
Average days added to processing time: Not applicable.
Number of times Labor sends case to NIOSH: 2;
Number of cases: 4,634;
Average cumulative days at NIOSH: 936;
Average days added to processing time: 235.
Number of times Labor sends case to NIOSH: 3;
Number of cases: 615;
Average cumulative days at NIOSH: 1,109;
Average days added to processing time: 408.
Number of times Labor sends case to NIOSH: 4;
Number of cases: 60;
Average cumulative days at NIOSH: 1,253;
Average days added to processing time: 552.
Number of times Labor sends case to NIOSH: 5;
Number of cases: 6;
Average cumulative days at NIOSH: 1,317;
Average days added to processing time: 616.
Source: Data from the Department of Labor's Energy Case Management
System for cases returned to NIOSH for rework for fiscal years 2002
through 2008.
[End of table]
Even after a case is determined to be noncompensable, new information--
from the claimant, NIOSH, or Labor--may prompt Labor to send the case
back to NIOSH to perform a new dose reconstruction. These reworks
incorporate new information specific to a single worker, such as an
additional cancer diagnosis or a newly discovered record of
employment, or reflect revisions to either the site profile or the
dose reconstruction method that was used.[Footnote 22] NIOSH was not
able to report on the additional time needed for reworks resulting
from revisions to its technical documents.[Footnote 23] However, these
revisions often result in the reconsideration of cases that were
previously denied. When NIOSH revises dose reconstruction methods, it
publishes program evaluation reports describing the change so that
completed cases that may be affected by the changes may be identified.
According to NIOSH, it selects cases for rework based on technical
revisions only if those cases had been previously denied. Thus, while
performing new dose reconstructions on such cases may lengthen overall
processing time, it might also result in a favorable outcome for the
claimant if his or her previously denied claim is reconsidered for
compensation.
Another factor that affects the timeliness of completing dose
reconstructions is the time it initially took NIOSH to research and
develop the site profiles and dose reconstruction guidance for the
more than 300 covered facilities.[Footnote 24] From the program's
outset, NIOSH has given the highest priority to developing site
profiles and dose reconstruction guidance for sites with the largest
numbers of prospective claimants. For example, according to NIOSH,
there are nine sites where 0 percent of dose reconstructions have been
completed by NIOSH, affecting only nine claimants. NIOSH officials
stated that the number of these sites with 0 percent of completed dose
reconstructions is expected to decrease.
Availability of Claimant Data and Fluctuating Agency Workloads Can
Also Delay Processing Time:
Irrespective of dose reconstruction, processing time for EEOICPA cases
can be affected by the availability of claimant data, such as personal
exposure and employment data, as well as by the agencies' workloads.
Since many facilities employed workers several decades ago--before the
advent of electronic data--some records are difficult for Energy to
locate and obtain. Some older sites do not have well-organized or
computerized methods of locating documents, so locating records
requires a more time-consuming search. For example, at the Hanford
site, older records must be searched by hand. According to Energy, the
search is especially difficult when records are needed for claimants
who worked for subcontractors many years ago because in most cases,
employee records remained with the subcontractors who worked on Energy
facilities and oftentimes, these companies no longer exist or have
been bought and sold multiple times.[Footnote 25] Also, Labor may ask
claimants to provide additional employment, exposure, or causation
evidence that is not always readily available or no longer exists from
their work site. Labor has contracted with the Center for Construction
Research and Training to help research and document the information
needed by workers in the construction trades to file claims, but it is
often difficult to obtain the needed data.[Footnote 26]
In addition, Labor reported that claims examiners' workloads--which
range from 25 to 45 cases--may surge when new Special Exposure Cohort
classes are designated and Labor must identify affected cases to
review. In 2009, for example, when a class created for the Hanford
Site was added to the Special Exposure Cohort, Labor's district office
in Seattle reported that it expected to be required to review an
additional 1,600 cases for this new class without receiving additional
staff to handle the work.
Staff turnover may also delay claim-processing time, although Labor
reported that it has processes in place to limit the additional time
that staff turnover adds to adjudication. Labor stated that turnover
rates vary among district offices, depending on local job markets.
According to Labor officials, some turnover occurs because of term-
limited positions--some claims examiners are appointed to 4-year terms
and seek more permanent employment elsewhere when the term is
complete.[Footnote 27] These positions constitute 31 percent of
Labor's claims examiners. Labor officials reported that these term-
limited positions were instituted in 2002, when the program was new
and the number of claims that would be filed was not known. A 2008
report by Labor's Ombudsman noted claimants' concerns that changing
the claims examiner while claims were still being processed had
resulted in processing delays.[Footnote 28] The Deputy Director of
Labor's Division of Energy Employees Occupational Illness Compensation
program acknowledged that delay can occur when claims examiners leave
and claims are transferred to others, but explained that district
office managers mitigate delays by effectively monitoring the transfer
of claims after one examiner leaves and ensuring that the new claims
examiner is quickly brought up to speed.
Delays may also occur when new claims examiners are hired by Labor,
because training and educating new claims examiners can be time-
consuming given the complexity of the program. According to the Deputy
Director, it usually takes, on average, 1 year for new claims
examiners to confidently handle and adjudicate claims.
NIOSH and Labor Have Procedures to Expedite Certain Cases:
To help shorten processing times, both NIOSH and Labor have developed
strategies to use in expediting certain cases. Because dose
reconstruction is a complex process that requires considerable time,
NIOSH has developed strategies to more efficiently complete dose
reconstructions. First, NIOSH regularly reviews cases that were filed
at the beginning of the program that have not yet been processed
because of case complexity to determine the source of the delay. As a
result, of the first 5,000 Part B cases sent to NIOSH for dose
reconstruction, by 2008, NIOSH had completed dose reconstructions on
all but 9.[Footnote 29] NIOSH is currently targeting the next 10,000
cases filed to determine which of these are still awaiting final dose
reconstructions from NIOSH and will subsequently complete these cases.
[Footnote 30] This strategy of targeting older cases, including legacy
cases--those that have been at NIOSH for 2 or more years--has
contributed to NIOSH reducing its backlog from a high of 6,546 cases
in fiscal year 2004 to 826 cases in fiscal year 2008.[Footnote 31]
Another strategy to reduce processing times is NIOSH's use of rough
dose estimations to expedite cases that would be clearly above or
below the 50 percent threshold of probability of causation.[Footnote
32] Figure 4 provides an overview of this process. NIOSH stated that
this efficiency measure has minimized time spent reconstructing doses
while maintaining the reliability of the outcome. In 2005, NIOSH
invested in new software technology that allows for faster
calculations for some dose reconstructions. According to the agency,
this technology has reduced the time it takes to calculate certain
types of dose estimates from months to hours. In fact, the average
processing times for dose reconstructions began to decrease in 2006.
Finally, NIOSH created several staff positions to assist claimants
through the Special Exposure Cohort and dose reconstruction processes,
because the completeness of the information submitted by claimants can
directly affect the time it takes to process their claims. Two of
these positions, NIOSH's Special Exposure Cohort Petition Counselor
and the Ombudsman, help ensure that petitioners include all of the
required and appropriate information when filing petitions. Similarly,
NIOSH designated its Ombudsman to inform claimants of the information
required for dose reconstructions.
Figure 4: NIOSH Efficiency Process Using Rough Estimates for Dose
Reconstructions:
[Refer to PDF for image: illustration]
NIOSH considers the organ(s) affected, the type of radioactive
elements, and how the exposure occurred:
1) Cancer unlikely to be caused by radiation exposure:
Rough estimate:
Exposure calculated using overestimating dose;
Threshold not met:
Low probability of causation that cancer is related to exposure;
Threshold met or exceeded:
Precise Estimate:
Exposure calculated with complete dose reconstruction;
Threshold not met:
Low probability of causation that cancer is related to exposure;
Threshold met or exceeded:
High probability of causation that cancer is related to exposure.
2) Cancer likely to be caused by radiation exposure:
Rough estimate:
Exposure calculated using underestimating dose;
Threshold met or exceeded:
High probability of causation that cancer is related to exposure;
Threshold not met:
Precise Estimate:
Exposure calculated with complete dose reconstruction;
Threshold not met:
Low probability of causation that cancer is related to exposure;
Threshold met or exceeded:
High probability of causation that cancer is related to exposure.
Source: GAO analysis of The NIOSH Radiation Dose Reconstruction
Program.
[End of figure]
Labor prioritizes claims for terminally ill claimants in an effort to
issue final decisions as quickly as possible for these claimants.
Under Part E, about 98 percent of workers who filed claims survived
long enough to receive Labor's final decision. Part B had similar
results, where 97 percent of Part B eligible workers who filed claims
survived to receive a final decision from Labor.
NIOSH and Labor Have Established Performance Measures and Goals to
Monitor Timeliness:
In 2007, NIOSH established performance targets for fiscal year 2008
for its processes in response to the results of the Office of
Management and Budget's (OMB) Program Assessment Reporting Tool (PART)
evaluation. The agency now has five measures it uses to track its
performance in completing dose reconstructions and evaluating Special
Exposure Cohort petitions. NIOSH uses these to track its progress
toward completing a percentage of certain types of cases and petitions
within specified time frames. See appendix III for a list of the
performance measures and results. In 2008, NIOSH set baselines for two
of the five measures. Program officials reported that NIOSH has not
established timeliness measures for specific steps of the dose
reconstruction process because its data system does not track specific
job activities.
Labor's annual operational plan for the program includes program
workload and timeliness targets. Labor has established separate
performance measures that correspond to 18 discrete steps of its
adjudication process (excluding the activities of NIOSH). At the end
of fiscal year 2008, Labor met 14 of the goals but did not meet the
other 4 (see appendix III for more detailed information). Labor's
performance in 2008 surpassed that in 2007, during which the agency
met just over half of its goals. Moreover, Labor has adjusted its
measures over time to target higher levels of performance. In 2008,
the agency adjusted targets for one-third of its measures.
In addition, Labor received a rating of "adequate" for its
administration of the program in OMB's 2007 PART evaluation. This
rating calls for more ambitious goals for monitoring agency
performance.[Footnote 33] Nevertheless, the program has improved
efficiency over time by increasing the average number of decisions per
full-time claims examiner from about 117 decisions per full-time
employee in fiscal year 2005 to 161 decisions in fiscal year 2008.
In its 2008 report that, in part, reviewed the timeliness of Labor's
claim processing, Labor's Inspector General (IG) noted that while the
agency had many performance measures that target specific steps in the
process, it did not report the overall processing time for claims from
start to finish.[Footnote 34] The IG therefore recommended that Labor
track and report overall claim-processing time, including time spent
at NIOSH for dose reconstruction. Labor responded that it does not
track overall timeliness because it does not have control over the
activities of the other agencies involved.[Footnote 35] Labor added
that such a measure would not be an accurate representation of its
adjudication process and would render its performance measures
useless. Nevertheless, Labor has begun posting information on overall
claim-processing time on its Web site. The IG also recommended that
Labor create interim milestones for the initial claim-processing phase
since Labor did not meet its timeliness goals for this part of the
process. Labor did not concur with this recommendation.[Footnote 36]
Administrative Costs Reflect Requirements of Science-Based
Adjudication:
In 2008, EEOICPA's administrative costs were over $106 million for
Part B and almost $57 million for Part E claims. That same year, over
$484 million dollars in benefits was paid for Part B, and $456 million
was paid for Part E claims.[Footnote 37] (See tables 4 and 5 for
direct administrative costs and benefits paid over the life of the
programs.) The administrative costs in any given year are not
necessarily related to the benefits paid because paid claims do not
reflect the number of claims processed in that same year. Payments
represent only claims paid out in that year. The administrative costs
reflect the costs of processing all claims, including those that were
denied and those that have not yet been decided.
Over the life of the program, direct administrative costs have
averaged about 20 percent of the total program cost for Part B and 14
percent for Part E. Yearly ratios, however, are affected by factors
unrelated to efficiency, namely the approval rate and the amounts
paid. A higher approval rate or higher benefit or both would result in
a lower ratio of administrative costs to benefits paid.
Table 4: Part B Benefits Paid and Direct Administrative Costs:
(Actual obligations in thousands of dollars).
Benefits paid[A]:
2001: $3,450;
2002: $350,970;
2003: $305,236;
2004: $251,051;
2005: $325,792;
2006: $461,385;
2007: $463,889;
2008: $484,380;
Total: $2,646,153.
Administrative costs:
2001: $18,429;
2002: $68,299;
2003: $66,058;
2004: $81,195;
2005: $115,703;
2006: $107,629;
2007: $108,362;
2008: $106,046;
Total: $671,721.
Administrative costs: NIOSH[B]:
2001: $2,403;
2002: $33,161;
2003: $26,006;
2004: $44,857;
2005: $55,235;
2006: $63,606;
2007: $55,270;
2008: $55,519.
Administrative costs: LABOR:
2001: $16,026;
2002: $35,138;
2003: $40,052;
2004: $36,338;
2005: $60,468;
2006: $44,023;
2007: $53,092;
2008: $50,527.
Total program cost: $3,317,874.
Percentage of cost that is administrative: 20%.
Source: GAO presentation of unaudited NIOSH and Labor data.
Note: Energy's costs average about $6 million per year. Energy did not
report cost data prior to 2006. Additionally, Energy does not separate
costs by Part B and Part E.
[A] Benefits paid do not include medical benefits paid. Medical
benefits for illnesses covered under Part B averaged $62 million per
year for 2005-2008.
[B] NIOSH's costs reflect both direct and indirect administrative
costs.
[End of table]
Table 5: Part E Benefits Paid and Direct Administrative Costs:
(Actual obligations in thousands of dollars).
Benefits paid[A]:
2005: $194,522;
2006: $280,130;
2007: $360,867;
2008: $456,734;
Total: $1,292,254.
Administrative costs:
2005: $34,939;
2006: $52,361;
2007: $63,268;
2008: $56,878;
Total: $207,446.
Total program cost: $1,499,700.
Percentage of cost that is administrative: 14%.
Source: GAO presentation of unaudited NIOSH and Labor data.
Note: Energy's costs average about $6 million per year. Energy did not
report cost data prior to 2006. Additionally, Energy does not separate
costs by Part B and Part E.
[A] Benefits paid do not include medical benefits paid. Medical
benefits for illnesses that were covered only under Part E averaged $1
million per year for 2005-2008. Medical benefits for illnesses covered
under both Parts B and E are recognized under Part B, not Part E.
[End of table]
The cost of administering EEOICPA reflects its science-based
adjudication process and the highly technical nature of the claims.
About 60 percent of Labor's direct costs for Part B are for personnel
and benefits. Eighty-seven percent of NIOSH's direct costs are for
contracts, primarily for dose reconstruction and the development of
site profiles. Unlike other workers' compensation programs, EEOICPA
compensates for diseases caused by exposure to radiation and toxic
substances that are not generally found in most workplaces.
Confirmation that these conditions are the result of exposure to
radiation or toxic substances requires the skills of many specialists,
including health physicists, industrial hygienists, occupational
medicine physicians, and claims examiners. Dose reconstructions for
cancer claims conducted by NIOSH health physicists are often the most
technically complex part of the adjudication process. They require
gathering and analyzing extensive data about working conditions and
exposures for the entire facility before individual exposures can be
estimated. Labor's adjudication process for claims of beryllium
disease, silicosis, and illnesses related to exposure to toxic
substances is also labor intensive because it requires expert review
at several levels.
While some claims require more time to adjudicate than other claims
and can therefore be more costly to process, Labor does not collect
and analyze data on administrative costs by individual claim or claim
type. Therefore, we could not determine how much Labor spends on
adjudicating approved claims compared with adjudicating claims that
were denied. We also could not determine how costly each phase of the
process is--other than dose reconstruction--because Labor does not
break out costs in detail.
On the basis of the number of total Part B dose reconstruction cases
that NIOSH processed and its costs over the lifetime of the program,
NIOSH estimates its direct administrative costs for each case to be
about $12,000.[Footnote 38] Using the same method, we calculated
Labor's direct cost per case to be about $8,000 for all Part B cases
(about one-third of which require dose reconstruction) and about
$6,000 for Part E cases. We were not able to calculate the
administrative costs for each case by year and compare trends over
time because NIOSH had significant start-up costs, which were
relatively recent, and because Labor and NIOSH may spend more than a
year processing each case.[Footnote 39]
Part B Quality Controls Generally Include Internal and Independent
Reviews, while Part E Processes Lack Independent and Expert Review:
Both Parts B and E of the Energy Employees Occupational Illness
Compensation Program have quality controls in place in the form of
multiple reviews within the agencies; there is also an extensive
independent review process for NIOSH's work on radiation-related
cancer claims under Part B, provided for by the act. While there is no
statutory requirement for an independent review of Labor's policies
regarding occupational lung disease claims under Part B or claims
regarding illnesses resulting from exposure to toxic substances under
Part E, those policies have not undergone outside review, and the
policy development process is mostly done internally. For example,
Labor employs a contractor and a small team of internal experts to
continuously update its site exposure matrix. However, this effort is
not supported by public, expert outside review to provide assurance
that the matrix is comprehensive and scientifically sound. Independent
expert review can help provide assurance of scientific or technical
quality and can provide decision makers with independent perspectives
and judgments of experts who are knowledgeable in the subject area
being reviewed. Experts we interviewed expressed concerns about the
scientific soundness, completeness, and consistency of Labor's
guidance used for Part E adjudications.
NIOSH's Work for Part B Cancer Adjudication Undergoes Independent
Expert Review:
NIOSH's work to support Labor's adjudication of Part B cancer claims
is independently reviewed by the Advisory Board required by EEOICPA.
The board reviews the scientific validity and quality of NIOSH's dose
reconstruction efforts, and it recommends whether to add new classes
of workers to the Special Exposure Cohort--those for whom dose
reconstruction is not feasible because of inadequate site data. Aided
by its contractor, Sanford Cohen & Associates, the Advisory Board
reviews NIOSH's technical documents including its site profiles,
sample dose reconstructions, and NIOSH evaluations of petitions to add
classes to the Special Exposure Cohort. When the board's contractor
reports concerns or questions about any of these documents to NIOSH
through the Advisory Board, NIOSH responds through an established
resolution process, revising its documents and methods as needed. If
warranted, NIOSH identifies and reconsiders all denied claims
potentially affected by the revision, documenting the process in
reports posted on its Web site. NIOSH issues these reports more often
in response to changes in site profiles than to dose reconstruction
audits, and does so on its own initiative as well as in response to a
finding by the board.
Technical documents and site profiles. The board, in conjunction with
its contractor, audits NIOSH's technical documents and site profiles
for adequacy and completeness of data sources, scientific validity,
accuracy of data, and consistency among site profiles. Because the
site profiles are used to support dose reconstructions, the audits
also assess whether the site profile instructions are clear, accurate,
complete, and auditable and whether NIOSH's methods and assumptions
are scientifically valid and favorable to the claimant. Like NIOSH,
the board's contractor traveled to many of the sites for its own
independent research, including meeting with site experts and former
workers to hear testimony about facility conditions and practices.
NIOSH characterizes its technical documents and site profiles as
living documents, subject to revision as new information and methods
become available. For example, in 2006, NIOSH revised its site profile
and dose reconstruction methods for Bethlehem Steel in response to
findings from the Advisory Board contractor's audit that assessed the
dose reconstruction data, assumptions, and methods.
Dose reconstruction reports. To carry out its responsibility to review
the scientific validity and quality of NIOSH's dose reconstructions,
the Advisory Board, in conjunction with its contractor, periodically
audits sampled dose reconstructions. These audits address whether
sampled dose reconstructions (1) are consistent with records provided
by Energy and the claimant interview; (2) comply with applicable
procedures, both general and specific to the relevant facility; and
(3) are supported by scientifically defensible and/or claimant-
favorable assumptions. For a portion of sampled dose reconstructions,
the board's contractor performs its own dose reconstructions to
determine if it can validate the results and evaluates the information
and methods NIOSH applied. Using a detailed checklist, the contractor
identifies areas of concern and their potential significance to the
estimated dose. The contractor also notes whether it found similar
problems in more than one dose reconstruction audit and identifies
opportunities for NIOSH to revise ambiguous instructions or overly
complex procedures. Following each audit, the Advisory Board and NIOSH
engage in a resolution process to address the audit findings. In cases
where comment resolution requires changes to the method used for the
reconstruction, NIOSH publishes a Program Evaluation Report describing
the change and identifying all claims that may have been denied under
the earlier method to assess whether they should be reconsidered.
NIOSH reported that, as of March 2009, the board's contractor had
completed audits of its first sample of 100 NIOSH dose
reconstructions, and as a result, one claim that had previously been
denied was approved.
Special Exposure Cohort petition evaluations. Under EEOICPA, the
Advisory Board advises the Secretary of Health and Human Services on
the addition of new classes of workers to the Special Exposure Cohort.
The Advisory Board's deliberations address whether it is feasible to
estimate workers' radiation dose with sufficient accuracy and whether
there is a reasonable likelihood that the radiation dose endangered
the workers' health.[Footnote 40] When a claimant or other authorized
party petitions to add a new class to the cohort and the petition
contains all required information, NIOSH prepares an evaluation
report, which may agree that a new class is warranted or,
alternatively, describe the basis for its position that dose
reconstruction is feasible for those workers.[Footnote 41] To support
the Advisory Board's deliberations, the board's contractor reviews and
reports on all such NIOSH petition evaluations. When the contractor
identifies shortcomings in NIOSH's proposed dose reconstruction
methods, or when new information about a site is discovered, the
Advisory Board considers the implications on the feasibility of dose
reconstruction. In some cases, NIOSH responds to the board's concern
with revised dose reconstruction methods, which the contractor reviews
in turn. This ongoing revision and review process can be protracted:
NIOSH's initial evaluation is subject to statutory time limits but its
revisions are not because they take place during the Advisory Board's
deliberation process.[Footnote 42]
As of April 2009, NIOSH reported that 42 new classes of workers had
been added to the Special Exposure Cohort on the basis of the Advisory
Board's recommendation. The Advisory Board had not recommended adding
3 new classes for which petitions had been filed, and 12 petitions
were still under consideration. Twenty of the 42 new classes had been
proposed by NIOSH and 22 by petition from claimants or their
representatives. In 4 of the 22 claimant-initiated petitions for which
the Advisory Board recommended adding a class, NIOSH's evaluation
concluded that dose reconstruction was feasible, but the Advisory
Board did not concur and recommended the addition of the class. Since
April 2009, 9 additional classes have been added, bringing the total
up to 51 classes as of March 2010.
Use of surrogate data. NIOSH uses surrogate data--basically,
information from facilities other than the site where the worker was
employed--to perform dose reconstruction when records on the worker's
own exposure or work site are insufficient for estimating the worker's
radiation dose.[Footnote 43] This practice has been criticized by
claimant advocates as inappropriate, given that EEOICPA provides for
expansion of the Special Exposure Cohort when it is not feasible to
estimate with sufficient accuracy the radiation dose received. Amidst
this criticism, NIOSH has developed protocols that specify the
criteria for when such information might be employed, and the Advisory
Board is in the process of reviewing these protocols. NIOSH's
protocols supplement its regulations by addressing in detail the
information sources and methods used in dose reconstruction and the
types of information and research needed to use surrogate data. On
behalf of the board, its contractor reviewed the NIOSH protocols on
surrogate data use and compared them with existing draft protocols
developed to guide the Advisory Board's review of NIOSH's dose
reconstructions that use surrogate data. The Advisory Board's draft
protocols specify that surrogate data may be appropriate under certain
conditions, subject to a case-by-case determination of scientific
soundness, stipulating that the more central the surrogate data are to
the dose reconstruction method, the more carefully they should be
justified and validated. While the draft protocols are the
contractor's current standards for reviewing NIOSH's dose
reconstruction methods that rely on surrogate data and are currently
under consideration by the board, they have not as yet been formally
adopted. The board's work group on surrogate data, which developed the
current draft protocols with the contractor, is planning to submit
them to the full board for its consideration. In addition, NIOSH plans
to review its approach to surrogate data as part of a planned internal
evaluation of its EEOICPA-related work.
Although the Advisory Board and its contractor have taken steps to
weigh in on when the use of surrogate data is scientifically sound,
some advocates question whether it is possible to adequately adjust
for differences among facilities, accounting for both physical
features such as size, layout, and ventilation, and human factors such
as compliance with safety and reporting requirements. NIOSH maintains
that dose reconstruction with surrogate data is reasonable when enough
is known about the type and quantity of radioactive elements on site
and the fabrication processes used, and it can identify monitoring or
production records from other facilities, covering the same time
frame, that are sufficiently comparable to estimate radiation exposure
risks to workers. Further, NIOSH officials note that when using
surrogate data or in any case where actual exposure records are
incomplete, their practice is to overestimate radiation exposure,
which generally results in higher estimates of exposure than workers
were likely to have had.[Footnote 44]
Throughout the dose reconstruction process, NIOSH incorporates
claimant-favorable exposure assumptions that maximize estimated
radiation dose and cancer risk. In addition, EEOICPA specifies that
the probability that the worker's cancer was related to covered
radiation exposure be calculated at the 99 percent confidence
interval.[Footnote 45] These approaches, along with the Special
Exposure Cohort provisions for situations in which dose reconstruction
is not feasible, were intended to help ensure that claimants are not
disadvantaged by their employers' lack of records.
Labor's Requirements for Part B Occupational Lung Disease Claims Have
Not Undergone External Expert Review:
Unlike claims for radiation-related cancer, EEOICPA does not require
independent review of Labor's requirements for occupational lung
disease claims under Part B, despite the fact that these diagnoses can
be challenging, and the disease may not manifest until years after
exposure. Currently, these requirements do not undergo a review
process by independent experts to ensure that they reflect current
medical consensus, are clear, and result in consistent adjudication
decisions. This can create unnecessary rework for the agency as well
as frustration for claimants.
For example, although occupational exposure is the recognized cause of
lung diseases such as chronic beryllium disease, some of the
diagnostic tests for this condition have been found to be unreliable
when performed on patients taking certain medications. Labor has
changed its approach to beryllium claims more than once, without the
benefit of expert medical or scientific review. First, in 2007, Labor
tightened its requirements for diagnostic evidence for Part B
beryllium illness claims, requiring that living workers substantiate
their claims with results from these tests or undergo more invasive
testing. Then, in 2009, Labor once again relaxed its requirements and
instructed claims examiners to consider a broader array of diagnostic
evidence for living workers. As a result, Labor now plans to review
beryllium claims that were denied when the more restrictive 2007
policy was in effect.
Labor's Processes for Certain Part E Claims Provide for Internal
Review but Not Independent Outside Expert Review:
Labor's decisions on Part E claims for diseases related to
nonradioactive toxic exposure undergo multiple internal reviews.
First, the adjudication process itself provides multiple opportunities
for claimants to supplement the evidentiary record and object to
Labor's adjudication decisions, both recommended and final, and
request a hearing. All recommended decisions also undergo supervisory
review within the district office and final adjudication branch before
they are issued as final decisions. In addition to the levels of
review built into the adjudication process, Labor's quality control
process includes random audits. These audits include annual
accountability reviews performed by staff from other district offices
or final adjudication branches. The accountability reviews include
audits of sampled claims and address, among other things, regulatory
and procedural compliance, the sufficiency of claim development, and
the appropriateness of the recommended decision.
However, unlike Part B's provisions for oversight of NIOSH's work on
radiation-related cancer claims, Part E of EEOICPA does not provide
for independent review of Labor's scientific or technical guidance on
nonradioactive toxic exposure claims. As a result, there is no
systematic independent expert review of Labor's Part E technical
documents and guidance. This includes development and use of its site
exposure matrix, its guidance for claims examiners, and the advice
examiners receive from consulting physicians.
Site exposure matrix. While Labor has, with the assistance of a
contractor, developed an extensive and growing exposure and work site
database for use by its claims examiners--the site exposure matrix--
there is no independent expert review process in place to validate or
augment this work. According to Labor, the site exposure matrix was
created specifically because Labor recognized that it would be
difficult for employees or their survivors to provide information
concerning the toxic substances that may have been present at the
facilities where the employees worked and the medical conditions that
may relate to exposure to such substances. The site exposure matrix
includes site-specific information, such as what toxins were present
at each facility;[Footnote 46] building characteristics; job
descriptions and activities; production processes; and incidents drawn
from research, interviews, information from Energy, and submissions
from the public.[Footnote 47] It also includes information about
established links between specific toxins and diseases. Developing a
comprehensive site exposure matrix is challenging for various reasons.
Historically, employers tended to place less emphasis on documenting
and monitoring exposure to toxic substances that were not radioactive.
Consequently, the records are not as complete, especially for the
earlier years of nuclear weapons production. In addition, research on
the health effects of toxic exposure is evolving, and research into
the health effects of some of the toxins used in the nuclear weapons
industry is limited.
Labor acknowledges that it would be impossible to compile a completely
comprehensive database, but notes that it is constantly updating the
matrix. In addition, Labor officials told us that the agency does not
rely solely on this database for its determinations and added that
their procedures and training both emphasize that the site exposure
matrix is not a stand-alone decision-making tool. Labor stated that
while it places strong weight on claims supported by information in
the site exposure matrix, the absence of information is not by itself
sufficient reason for denying a claim. For conditions without an
established link in the matrix, Labor officials said they consider
other evidence of causation, including information submitted by
claimants, district medical consultants, industrial hygienists, health
physicists, and toxicologists. Labor's guidance to its claims
examiners specifies that this evidence must be compelling and
probative--a well-rationalized medical opinion--in order to support
compensation.
Labor officials maintain that because the site exposure matrix's
inventory of illnesses and associated toxins is drawn from the
National Library of Medicine's Haz-Map, a database of peer-reviewed
scientific articles, a formal review is not necessary and would create
unnecessary delays for Part E claims. They also said that in addition
to tracking changes in this database, the National Library of Medicine
researcher who developed the database is working under contract with
Labor to continually update the site exposure matrix to reflect
ongoing research into the relationship between toxins and disease. The
researcher works with Labor's ad hoc internal site exposure matrix
review committee.[Footnote 48]
Occupational health physicians we interviewed criticized the
scientific soundness of the site exposure matrix, noting that the
absence of published research linking certain chemicals to diseases
does not constitute evidence that such links do not exist. Labor
officials countered that the lack of a causal link in the matrix does
not in itself constitute the basis for denying claims. They cited an
example of an approved claim for a condition that was not linked to
occupational exposure in the matrix but resulted from unique
sensitivities to substances not toxic to the general population.
Occupational health physicians and claimant advocates we interviewed
also expressed concern that the site-specific information in the
matrix, such as the location of toxins, building characteristics, and
job descriptions, does not account for the exposure of roving workers
such as maintenance mechanics, security guards, firemen, and
electricians, who were likely to spend time in multiple buildings. The
physicians also noted that even jobs not considered hazardous could be
risky, depending on where the offices were located. Labor explained
that the site exposure matrix is set up to allow claims examiners to
review potential exposure risks. Search capabilities are not limited
by superficial job titles but allow claims examiners to review
potential exposures in work areas where workers were located.[Footnote
49] Claims examiners are also encouraged to discuss potential exposure
with claimants. Claims examiners use the matrix as one component of
their review--and may consult its data on buildings, work areas,
location of toxic substances, production processes, and incidents
along with information from claimant interviews, affidavits, and other
evidence. Nevertheless, Labor officials noted that ultimately,
claimants must submit evidence that is sufficient to support a well-
reasoned compensation decision.
Medical guidance and consultation for claims examiners. Labor offers
detailed guidance to its claims examiners on how to weigh a claimant's
medical evidence and provides a cadre of physician consultants for
examiners to consult. However, this guidance is not reviewed by
outside experts to ensure it is scientifically sound and reflects
current research.
Labor's claims examiners are not required to have medical expertise or
training, but they are required to reach decisions about causation of
diseases on the basis of medical evidence. Labor has developed a
claims examiners' manual that specifies how to request, review,
supplement, and clarify employment and medical records. Interpreting
evidence of the health effects of toxic exposure for Part E claims
adjudication is a complex, sophisticated task, yet this guidance is
not reviewed by outside experts. Several occupational health experts
we interviewed, as well as both former Labor medical directors for
Part E, expressed concerns about this guidance. For example, some
physicians we interviewed objected to Labor's instructions that
exposure to each toxic substance be evaluated independently. They
disagreed with Labor's position that current science does not support
the assertion that exposure to multiple toxins has a combined effect
on health.[Footnote 50] Because nuclear weapons facilities typically
exposed workers to multiple hazardous substances, these physicians
assert that it is not realistic to consider the health effects of each
toxin in isolation. Because the matrix includes only single causal
linkages and does not address combinations of toxins, these physicians
are concerned that the site exposure matrix is not sufficiently
sophisticated to include the nuances of toxic exposure research, and
that some claims examiners will deny claims automatically if they
don't find a causal link in the matrix even if Labor discourages this
practice.
Oversight of consulting physicians. Although adjudication decisions
are subject to multiple levels of internal review, Labor does not have
an oversight process in place to ensure quality, objectivity, and
consistency of its consultant physicians' work.[Footnote 51] Of the 78
physicians retained by Labor to help claims examiners interpret
medical evidence on diagnosis, causation, and impairment, 61 reported
specializing in occupational medicine. These physician consultants
review medical records and provide advice about causation on an as-
needed basis at the request of claims examiners. Occupational
physicians and the former medical directors for EEOICPA programs
expressed concerns to us about the consistency of the consultant
physicians' reports and suggested the need for quality control
measures such as peer review of sampled reports and trend analyses of
multiple reports. Labor officials acknowledged the program does not
have a system for quality review of its contractor physicians' reports.
Probability of causation for Part E cancer claims. Although the
statutory language regarding eligibility for compensation is different
in Part B and Part E, Labor has decided to use the same procedures it
uses to adjudicate Part B radiation-related cancer claims when it
adjudicates radiation-related cancer claims under Part E.[Footnote 52]
As a result, Labor applies the same 50 percent probability of
causation standard to determine the compensability of radiation-
related cancer claims under Part B and Part E, which has raised
concerns for claimant advocates about the agency's implementation of
Part E. The disagreement centers on the appropriate interpretation of
the differing language in Part B and Part E. Part B requires a
determination that the cancer is "at least as likely as not related to
employment at the [Department of Energy or Atomic Weapons Employer]
facility."[Footnote 53] In contrast, Part E specifies that for a claim
to be compensable, Labor must find that "it is at least as likely as
not that exposure to a toxic substance at a Department of Energy
facility was a significant factor in aggravating, contributing to, or
causing the illness."[Footnote 54]
Claimant advocates maintain that a 50 percent probability of causation
is inappropriately high and not consistent with Part E. This position
is grounded in the concept that the Part E language regarding
compensation for illnesses that were caused, contributed to, or
aggravated by exposure to toxic substances merits a lower threshold of
probability than Part B. While Labor acknowledges that the statutory
language is different for the two programs, the agency asserts that it
is clear from the scientific literature that it is not possible to
definitively attribute any individual's cancer to any particular cause
and that scientific analysis does not distinguish between cancers that
are caused or contributed to by radiation. Labor further asserts that
its approach provides the only reasonable factual basis to support a
determination under Part E.[Footnote 55] Labor officials also told us
that the agency relies on the probability of causation based on
NIOSH's dose reconstruction for Part E cancer claims only when it is
unable to support compensation based on exposure to a nonradioactive
toxic substance.
NIOSH scientists noted that NIOSH was only informally involved in
developing Labor's regulation on how to interpret dose reconstruction
results under Part E despite that document's discussion of
sophisticated legal, scientific, and statistical concepts. Although
Labor adopted its regulation through the public notice and comment
rulemaking process, Labor did not fully engage NIOSH experts on the
more technical aspects of the issues during this process. Meanwhile,
Labor maintains that the claimant-favorable nature of dose
reconstruction more than compensates for differences between causal or
contributory effects of radiation exposure (even if the probability
models could make such distinctions, which Labor maintains they
cannot). In particular, as noted above, use of the 99 percent
confidence interval to estimate the probability of an exposure-cancer
link attributes cancer risk, and compensates claimants, for cancers
when radiation doses were very low.
Despite Agencies' Actions, EEOICPA Program Transparency Remains
Somewhat Limited:
The implementing agencies have taken various steps to make information
public, but national security considerations and the complex, science-
based methods underlying EEOICPA claims adjudication pose challenges
to information sharing. While NIOSH has worked with Energy to clear
some sensitive and classified information for publication in the site
profiles developed for Part B cancer claims, Labor has not as yet done
so for the site exposure matrix used for Part E. Also, NIOSH has
established an ombudsman to help claimants whose cases are undergoing
dose reconstruction, but Labor has not publicly responded to its
Ombudsman's annual reports on claimant concerns.
Agencies Have Taken Steps to Help Claimants and Make Complex
Information about Claims and Methods Accessible:
The sheer complexity of the information NIOSH generates to assist
Labor with its adjudication of cancer claims has led to concerns that
the process is incomprehensible to claimants. According to agency
officials and the Ombudsman, both the dose reconstruction process and
the results of individual decisions are often difficult for claimants
to grasp. NIOSH has taken a number of steps to assist claimants and
communicate with them and the public about its work. Both Labor and
NIOSH have also posted a great deal of information about program
implementation and data on their respective Web sites. Agency measures
to enhance public and claimant knowledge of the adjudication process
include the following:
Establishment of two claimant liaison positions at NIOSH. To help
claimants and petitioners understand the dose reconstruction process
and navigate the requirements for seeking Special Exposure Cohort
status, NIOSH established a Special Exposure Cohort Petition Counselor
position and a consultant/ombudsman position. These officials are
available to provide specialized one-on-one consultations about
NIOSH's programs, documents, and the results of dose reconstruction.
The Special Exposure Cohort Petition Counselor is responsible for
ensuring that petitioners are fully informed about the requirements
for a successful petition, helping them prepare their petitions, and
keeping them informed throughout the petition review process. The
NIOSH Ombudsman is also available to help petitioners compile the
information they need to support their petitions and to help resolve
claimants' questions about the dose reconstruction process.
The officials in both of these positions told us how confusing it is
for claimants to navigate the program and keep track of all the
various agencies and processes involved. In addition to clarifying
complex program and regulatory requirements, both liaisons told us
they take an active role to resolve concerns. For example, the Special
Exposure Cohort Petition Counselor described her response to a
petitioner's concern that NIOSH had not reviewed a classified document
important to the petition's success. She first arranged for Energy to
review the document and respond to specific questions to determine
whether it might affect the petition, then arranged for NIOSH
scientists with the appropriate clearance to see the document.
Finally, she arranged a conference call between the petitioner and
NIOSH health physicists to discuss NIOSH's interpretation of the
classified information and its decision that its contents would not
change the petition's outcome. The petitioner in question disagrees
with that decision, but the NIOSH petition counselor ensured that the
decision was reached only after NIOSH could demonstrate that it had
not overlooked pertinent information. The Ombudsman told us she is
able to facilitate access to information for claimants and arrange
conference calls with the health physicists who prepare dose
reconstructions to discuss individual dose reconstruction results.
Revision of standards for written and oral communication with
claimants by NIOSH. NIOSH officials have described the challenge of
creating reports and letters that provide the degree of specificity
needed for legal and technical accuracy without being so complex they
are not understandable to a layperson. According to agency officials,
the agency is working with its contractor and public health
communications specialists to revise the descriptions of the results
of dose reconstructions it sends to claimants. The new format will
include a section with legal information, another section with enough
technical specificity to describe the dose reconstruction process and
results, and a third interpretive section that will convey the
findings in terms designed to be accessible to readers with an eighth
grade education.
The Advisory Board has also recommended that NIOSH revise the
information it provides to claimants when they receive the results of
a dose reconstruction for claims in which the agency has employed an
overestimation measure. The information provided to claimants would
need to explain that the probability of causation could decrease later
if NIOSH has to provide a more precise estimate because more detailed
information has become available or the claimant develops a new
cancer. This recommendation was made in response to complaints that
claimants whose original dose reconstruction was overestimated were
confused and dismayed when they developed additional cancers, and
subsequent, more precise estimates resulted in lower doses.
Publication of a variety of informational resources. NIOSH's publicly
available information includes an overview of EEOICPA, a detailed
frequently asked questions section on its Web site about its
activities, a video describing dose reconstruction, and a number of
pamphlets that explain NIOSH's activities in various levels of detail.
These materials are designed for a variety of claimants with diverse
educational backgrounds, ages, and health status. Labor has also
developed a variety of brochures about the application and
adjudication process and publishes its internal bulletins and claims
examiners' manuals on its Web site.
Open Advisory Board meetings. Since the Advisory Board is subject to
the Federal Advisory Committee Act, most of its meetings must be open
to the public and announced in advance in the Federal Register. The
board also announces its meetings on NIOSH's Web site. Members of the
public can attend in person or by calling a toll-free telephone
number. In addition, transcripts of all meetings are published on the
Web site, although according to the board's designated federal
official, the complex subject matter makes proofreading and rapid
publication a challenge. To address this problem, the board Chairman
decided in late 2009 to expedite the public availability of meeting
transcripts by posting a preliminary version, reviewed only for
Privacy Act compliance and subject to correction.
Labor's information and assistance to claimants. For its part, Labor
manages contractor-run resource centers around the country to provide
information about EEOICPA and to assist the public in filing claims.
Staff at the Richland, Washington (Hanford), resource center told us
they travel to regional events to do outreach for potential claimants.
Labor has also established a "traveling" resource center that visits
various communities to provide one-on-one assistance. In addition, the
program director at Labor has participated in conference calls with
claimant advocates.
Public Access to Site Exposure Matrix for Part E Is Limited, but Labor
and Energy Are Planning to Release More Information:
Public access to facility information about other types of toxins
compiled in Labor's site exposure matrix for Part E adjudication is
far more limited than it is for the documents NIOSH has published
about radiation exposure. This means that one of Labor's key resources
for Part E claims adjudication has not had the benefit of being
reviewed by claimants and others who worked in those facilities. While
there are detailed search capabilities for claims examiners, the
publicly available information in the matrix for each site consists of
a list of substances confirmed to have been present. Searches by
disease yield either a list of toxic substances with established links
or a statement that no toxic substances in the site exposure matrix
database show an established link to the occupational disease at this
time. As noted above, the matrix is a key resource for Part E
adjudication, used to inform claims examiners' research on the link
between exposure to toxins and illness. However, because claimants do
not have access to the full informational resources in the site
exposure matrix, they cannot review the totality of the evidence that
Labor considered when adjudicating their claims and thus may not be
able to understand the basis for, or potentially challenge, a denial.
In addition, to the extent that the information in the database is not
available to be reviewed, there are few opportunities for claimants
and scientists to discover and remedy any areas where information is
missing or inaccurate.
Because the information about toxic chemicals and site characteristics
is sensitive, agency officials told us that Labor's access to site
data from Energy for its site exposure matrix has been based on an
interagency agreement that the information would be used internally by
Labor and kept secure. Labor lacks the authority to publish more of
the site exposure matrix content before it has been cleared by Energy.
The agencies have only recently begun to formally discuss a process
for making these data public, and they do not yet have a schedule in
place for this clearance process. Labor's practice has been to release
only limited excerpts in response to claimant requests for a copy of
their claim file under the Privacy Act.[Footnote 56] Whereas NIOSH
worked with Energy at the outset of the Part B program to, as much as
possible, make the information it has acquired for its site profiles
public, Labor only recently approached Energy about undertaking a
similar process for Part E.[Footnote 57] Although Energy officials
maintain that full public access could pose a national security risk,
they are willing to work with Labor on a clearance process to
determine what additional information may be safely made available.
Lack of Response by Labor to Ombudsman's Reports Hampers Effective
Resolution of Claimant Concerns:
The Labor Ombudsman responds to claimant queries and reports annually
to Congress on their concerns, but his role is relatively limited.
Although the act provides that the Secretary of Labor may assign
additional responsibilities, the Ombudsman's activities have been
limited to date to those specified in the act--to provide information
to claimants regarding the available benefits and the relevant
requirements and procedures involved in a claim, and to submit an
annual report to Congress regarding the number and types of claimant
requests for assistance and an assessment of the most common
difficulties faced by claimants.[Footnote 58] For example, according
to the Ombudsman, the Ombudsman's office does not have access to
Labor's claims files or databases, so it cannot respond to questions
about a claim without seeking information or access to documents from
other Labor officials. Until late 2009, Labor required the Ombudsman's
office to request official decision letters from claimants rather than
providing the Ombudsman with direct access. This is changing
gradually: The Ombudsman reported in January 2010 that program
officials have gradually and informally granted the Ombudsman more
access to information and been more supportive of his activities. For
example, the agency has begun providing more direct lines of
communication with program staff. The activities and access are still
not comparable to those of the NIOSH Ombudsman, who is authorized to
review claimant files and facilitate discussions with the scientists
who performed dose reconstructions to help address questions related
to individual claims. Also, while the Labor Ombudsman's reports to
Congress can offer insights on aspects of the program that have
presented problems for claimants, Labor is not required to respond
formally to those reports, or take remedial actions. Labor officials
reported that they do confer with the Ombudsman regarding his
findings, and the Ombudsman related to us that the agency has recently
become more receptive to his suggestions.
By comparison, some federal statutes provide a more robust role for
various ombudsmen within their respective agencies. For example, the
National Taxpayer Advocate of the Internal Revenue Service and the
Ombudsman for Citizenship and Immigration Services are authorized by
statute to make recommendations to their respective agencies, which
must then report on actions they have taken in response. In contrast,
Labor is not statutorily required to respond to its Ombudsman's
reports. For example, the Ombudsman has reported since 2005 that
complaints about customer service consistently rank high among
claimant concerns, but Labor has not publicly responded to these
concerns or developed formal plans for addressing the issues.[Footnote
59] After years of raising this as a general issue, the Ombudsman's
office has begun sending every complaint to the director of the
district office involved. Although the Ombudsman's office receives a
copy of the director's response, the Ombudsman told us that no
noticeable improvements have yet resulted.
Although EEOICPA requires only one ombudsman--the Ombudsman at Labor--
other claimant liaison positions have been separately created.
[Footnote 60] As noted above, NIOSH established two claimant liaison
positions to help individuals interpret complex program requirements
and documents.[Footnote 61] The NIOSH Ombudsman's role extends to
helping petitioners complete forms and prepare an effective, complete
Special Exposure Cohort petition. In 2007, New Mexico established an
office of Nuclear Workers' Advocacy for EEOICPA claimants. The New
Mexico Advocate works on behalf of individual claimants, and in July
2008, the state of New Mexico reported that the office had assisted
220 workers and survivors to obtain EEOICPA compensation of more than
$4.9 million. The Advocate acts as a liaison among claimants who have
filed EEOICPA claims, their former employers, Energy, and Labor--and
assists claimants throughout the process, including appeals. The
Advocate explained that because lack of employment records is one of
the biggest barriers to obtaining benefits, her office has been
especially effective at helping claimants obtain documentation from
Energy contractors, even after Energy was not able to obtain the
records. She attributed her office's success at finding these records
to a thorough interview process, in-depth research on behalf of
claimants, and the relationships the office has established with local
Energy officials. The Advocate and another New Mexico official noted
that state funds for this work are limited and that they might not be
able to keep up with the growing demand for these services.
Conclusions:
EEOICPA was established to provide compensation to nuclear weapons
production workers performing work vital to the nation's interests,
often under extremely hazardous conditions, who developed cancer or
other diseases related to on-the-job exposure. As Congress stated in
the act, government agencies and contractors had a history of placing
workers at risk without informing them about the hazards and deterring
compensation claims. In light of this history, it is critical that
policies and procedures are in place to promote program credibility
and transparency. This is especially important in cases where Energy
or its predecessor agencies failed to maintain records of employment,
accidents, and exposure to radiation and other hazards.
Meanwhile, it is inevitable that there will be differences of opinion
about the program, particularly since issues of national security are
still a concern when it comes to full public disclosure of all nuclear
site data. It may be, as well, that no amount of information about
dose reconstruction will be enough to satisfy those who question its
validity. Nonetheless, independent review is an important method of
validating findings and enhancing the credibility of the scientific
basis of claims decisions, and the Advisory Board serves this purpose
for the aspects of the Part B program that it oversees. In contrast,
there is no outside independent review of the scientific soundness of
important aspects of Labor's implementation of the Part E program.
Moreover, while Labor has various quality control measures in place
for the Part E program, there are some gaps, such as no oversight
process to ensure the quality, objectivity, and consistency of its
consultant physicians' work and no independent expert review of the
scientific soundness of the detailed information in the site exposure
matrix.
Labor and Energy have expressed a willingness to work together to
determine what additional information from the Part E site exposure
matrix may be cleared for public release. This could facilitate
opportunities for claimants to better understand the basis for
decisions on their claims and for claimants and others to help improve
the accuracy and comprehensiveness of the matrix. However, a formal
agreement and action plan for this clearance process would provide
greater assurance that it will be carried out in an efficient and
effective manner.
Labor, NIOSH, and Energy have taken steps to assist claimants in
navigating a program that is scientifically complex and requires an
extensive investment of resources. In addition, the Labor Ombudsman
has issued annual reports to Congress highlighting the most common
difficulties claimants have faced, including persistent complaints
about customer service. However, Labor does not respond publicly to
the Ombudsman's reports. As a result, claimants have little knowledge
that their concerns are heard or that they are being addressed.
Recommendations for Executive Action:
To enhance oversight and transparency of EEOICP, we recommend that the
Secretary of Labor take the following three actions:
1. Strengthen the quality control measures in place for Part B lung
disease claims and Part E processes with independent reviews. Such
measures should include, for example, instituting periodic peer
reviews of sampled reports by Part E consulting physicians, arranging
for technical review of detailed information in the site exposure
matrix, and obtaining periodic expert review of medical evidentiary
requirements for the Part B claims related to lung diseases.
2. Establish a formal agreement and action plan with the Secretary of
Energy to release more information, where appropriate, in the site
exposure matrix database in order to allow greater public access and
input. In doing so, Labor should actively seek additional information
from worker representatives and site experts about job descriptions,
processes, and potential exposure.
3. Develop formal action plans, within Labor's scope of authority, in
response to the Labor Ombudsman's reports regarding major claimant
concerns and make the plans and updates on their subsequent status
publicly available. One such plan should offer Labor's response to the
Ombudsman's reports about consistent problems with customer service.
Matter for Congressional Consideration:
To enhance oversight of claims adjudication under Part E of EEOICPA,
Congress may wish to consider amending the act to establish an
independent review board for Part E, similar to the Advisory Board on
Radiation and Worker Health established under Part B of the program.
Such an independent board could review and report on the scientific
soundness of Labor's implementation of Part E, including the site
exposure matrix, guidance provided to claims examiners on medical
evidence, and Part E probability of causation standards for radiation-
related cancers. In creating such an independent board, it would be
critical to develop appropriate provisions regarding its funding
structure, appointment of members, and staff support. Our 2007 report
on the Part B Advisory Board highlighted challenges that these three
areas had presented to the board's independence and identified various
options to enhance board independence in each area.
Agency Comments and our Evaluation:
We provided a draft of this report to the Secretaries of Labor,
Energy, and Health and Human Services for review. Health and Human
Services provided technical comments, which we have incorporated in
the report where appropriate.
In its comments, Energy said that with regard to our second
recommendation, it has requested from Labor a static copy of the site
exposure matrix database, and will screen the database and redact
information that would pose a national security risk if released, so
the database can be made available to the public. Comments from Energy
are reproduced in full in appendix IV.
In its comments on the draft, Labor said that it is always looking to
improve the program and will be planning ways to implement changes in
light of our recommendations. In addition, Labor provided
clarification of the nature and uses of the site exposure matrix. With
regard to making more of the site exposure matrix publicly available,
Labor stated that the site exposure matrix is available on its Web
site but is not in the format that is used by claims staff during the
claims process. As we noted in our report, the information available
to the public is much more limited than that available to the claims
examiners. It added that Energy owns and controls dissemination of the
information regarding toxic substances, locations, and processes in
the nuclear complex, and that making a detailed version of the site
exposure matrix available to the public could pose a threat to
national security. Labor said, however, that it recognizes that this
creates a transparency issue and stated that it has been working with
Energy on this issue and will continue to do so.
With regard to the use of the site exposure matrix, Labor clarified
that the database was created specifically to assist claimants in
making their case by providing information on toxic substances that
may have been present at the facilities and any medical conditions
resulting from exposure. Labor noted that the site exposure matrix is
not used to deny claims and that its procedures and training reiterate
that the database is not a stand-alone decision-making tool, and that
all avenues must be pursued when developing a claim, even if the
database does not contain a link between exposure and illness. We
clarified our characterization of the site exposure matrix and how
Labor uses it to adjudicate claims. Comments from Labor are reproduced
in full in appendix V.
In addition, this report will be available at no charge on the GAO Web
site at [hyperlink, http://www.gao.gov/].
If you or your staff have any questions about this report, please
contact Andrew Sherrill at (202) 512-7215 or sherrilla@gao.gov.
Contact points for our Offices of Congressional Relations and Public
Affairs may be found on the last page of this report. Key contributors
to this report are listed in appendix VI.
Signed by:
Andrew Sherrill:
Director, Education, Workforce, and Income Security Issues:
List of Requesters:
The Honorable Jeff Bingaman:
Chairman:
Committee on Energy and Natural Resources:
United States Senate:
The Honorable Tom Harkin:
Chairman:
Committee on Health, Education, Labor, and Pensions:
United States Senate:
The Honorable Patty Murray:
Chairman:
Subcommittee on Employment and Workplace Safety:
Committee on Health, Education, Labor, and Pensions:
United States Senate:
The Honorable George Miller:
Chairman:
Committee on Education and Labor:
House of Representatives:
The Honorable Lamar Alexander:
United States Senate:
The Honorable Michael F. Bennet:
United States Senate:
The Honorable Sherrod Brown:
United States Senate:
The Honorable Jim Bunning:
United States Senate:
The Honorable Maria Cantwell:
United States Senate:
The Honorable Mitch McConnell:
United States Senate:
The Honorable Bill Nelson:
United States Senate:
The Honorable Harry Reid:
United States Senate:
The Honorable Charles E. Schumer:
United States Senate:
The Honorable Mark Udall:
United States Senate:
The Honorable George V. Voinovich:
United States Senate:
The Honorable Ed Perlmutter:
House of Representatives:
The Honorable Jared Polis:
House of Representatives:
[End of section]
Appendix I: Objective, Scope, and Methodology:
To determine the length of time Labor, the National Institute for
Occupational Safety and Health (NIOSH), and Energy each spent
processing claims, and the factors affecting processing times, we
obtained data from Labor and NIOSH from their case management systems
for claims filed from fiscal year 2002 for Part B and fiscal year 2005
for Part E through September 2008. We assessed the data's reliability
and found the data reliable for the purposes of this study by checking
for outliers and inconsistencies and by interviewing Labor officials.
We analyzed trends in minimum, maximum, median, and average processing
times from fiscal year 2002 for Part B and fiscal year 2005 for Part E
through September 2008. To determine which steps in the process are
most time-consuming, we examined time spent by each agency and time
spent between the milestones tracked by the agencies. To determine
which factors affected processing times, we examined claim-processing
times by type of claim (e.g., Parts B and E or with and without dose
reconstruction cases), and by district offices to determine if there
were significant and consistent differences among the processing times
based on these characteristics. We also reviewed NIOSH's analysis of
how frequently claims move back and forth between NIOSH and Labor,
[Footnote 62] reasons for and effects of major NIOSH revisions to dose
reconstruction methods and site profiles,[Footnote 63] and how long it
took Energy to respond to Labor and NIOSH requests for information. We
also interviewed agency officials to obtain their views on what
aspects of the program they believe affect processing times. We
interviewed officials and reviewed relevant documentation to identify
efforts to expedite claim processing. To evaluate agencies'
performance in the area of timeliness, we examined timeliness measures
established by Labor and NIOSH and whether they had met their
established goals. For additional context, we reviewed external
evaluations of Labor's implementation of the program such as the
Program Assessment Rating Tool review and a report on the program by
Labor's Office of Inspector General.
To determine the direct cost of claim processing, we obtained
administrative cost data from program inception (fiscal year 2001 for
Part B and fiscal year 2005 for Part E) through fiscal year 2008 from
Labor and NIOSH and from fiscal year 2006 through fiscal year 2008
from Energy. These data have not been audited. We assessed the data's
reliability by checking for outliers and inconsistencies and found the
data reliable for the purposes of this study. We also interviewed
agency officials and reviewed relevant documentation to identify
possible reasons behind the trends in costs (e.g., number of claims
processed, complexity of claims processed, whether greater
efficiencies have been introduced, and so forth). Because the same
administrative resources were used for various parts of the process,
we were not able to disaggregate costs for discrete steps in the
claims process. Consequently, we could not determine the costliest
parts of the process within an individual agency.
To assess the quality controls and transparency of the claims
adjudication process, we reviewed relevant statutes, regulations, and
agency technical and procedural guidance for the Energy Employees
Occupational Illness Compensation Program Act of 2000 (EEOICPA);
interviewed officials from Labor, Energy, and NIOSH; and interviewed
members of the Advisory Board on Radiation and Worker Health and its
technical contractor. To obtain additional expert opinion on the
technical and medical aspects of EEOICPA claims adjudication, we
identified occupational and environmental health organizations and
specialty societies, such as the American College of Occupational and
Environmental Medicine. We contacted all such organizations we could
identify through referrals, Internet searches, and review of Advisory
Board meeting minutes and interviewed those physicians and scientists
that made themselves available. We also interviewed the two former
Medical Directors of Labor's Division of Energy Employees Occupational
Illness Compensation and occupational medicine specialists who are
actively involved in assisting claimants.
To obtain claimant perspectives on the quality controls and
transparency of the claims adjudication process, we interviewed
claimant ombudsmen with Labor, NIOSH, and the state of New Mexico, and
claimant representatives from a nationwide coalition of grassroots
advocacy groups, known as the Alliance of Nuclear Worker Advocacy
Groups (ANWAG). Largely through the assistance of ANWAG, we were in
touch with individual claimants as well as physicians and
representatives of labor unions with experience at sites including
Hanford, Santa Susana, Oak Ridge, Rocky Flats, Linde Ceramics, and the
Portsmouth Gaseous Diffusion Plant.
Regarding quality control, we also reviewed EEOICPA, the agencies'
regulations, and policies and procedures to determine whether there
was adequate oversight of claim processing and oversight to ensure
that decisions were reached using complete and accurate information.
In addition to speaking with officials in Labor's national office, we
visited the Seattle District Office to interview officials about
quality control processes in place at the regional level. We did not
assess the scientific validity of technical methodologies (for
example, NIOSH dose reconstruction) or the accuracy of individual
claims determinations or site profiles. In addition, we did not
attempt to resolve disputes regarding individual claims or Special
Exposure Cohort petitions.
To examine agencies' efforts to promote program transparency for
claimants, we also reviewed the agencies' policies and procedures for
providing pertinent information to claimants, including agency
ombudsman reports. We reviewed Freedom of Information Act and security
review procedures, including Energy's security plan for providing
classified and controlled information to NIOSH and Labor, and
interviewed agency officials about their practices. We interviewed
claimant advocacy groups and obtained documentation about their
experiences with requesting and obtaining documents. We interviewed
Labor and NIOSH officials about whether the agencies were able to
obtain the information that they need to adjudicate claims. To
determine the kind of assistance the agencies provide to claimants, we
interviewed agency officials about the various types of assistance
available (e.g., Former Worker Medical Screening Program, resource
centers, and ombudsman's offices) and visited Labor's Hanford Resource
Center and the Hanford Nuclear Reservation. We also reviewed relevant
agency policies and procedures and interviewed Labor's Ombudsman and
NIOSH's Ombudsman and Special Exposure Cohort Petition Counselor about
their claimant assistance activities. We discussed claimant concerns
about information and assistance with agency officials. We reviewed
the Labor Ombudsman's reports and followed up with Labor to determine
its response to the documented claimant concerns. We also reviewed
statutes creating ombudsman positions in connection with other federal
programs.
Because Labor's Office of Inspector General recently reviewed and made
recommendations on the role of the resource centers, we designed our
study to avoid duplicating its efforts.
We conducted this performance audit from November 2008 to March 2010
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Labor and NIOSH's Claim-Processing Steps:
1) Claimant: Submits claim to Labor.
Department Of Labor:
2) Does claim meet eligibility requirements?
If yes, go to step 3;
In no, go to step 10.
3) What type of claim is it?
Radiation Exposure Compensation Act; Section 5, Beryllium Silicosis,
Special Exposure Cohort claims; Go to step 12.
Claims involving cancers not covered by Special Exposure Cohort
provisions; go to step 4.
4) Claim referred to NIOSH for dose reconstruction.
NIOSH:
5) NIOSH obtains worker‘s and workplace monitoring information from
Energy and any other sources as needed.
6) NIOSH interviews claimant on employment history, radiation
monitoring, radiation incidents, medical screening, and other relevant
information. A report based on the collected data is submitted to the
claimant for review and approval.
7) (Dose reconstruction) NIOSH assigns a health physicist to conduct
the dose reconstruction using data from the claimant, the site
profile, and other sources.
8) Claimant is given a draft dose reconstruction report and a chance
to provide additional information in a close-out interview.
9) After changes are made, claimant is required to submit a form to
NIOSH certifying record can be closed. Upon receipt of the form, NIOSH
forwards final report to claimant and to Labor.
10) Labor‘s Office of Workers‘ Compensation Programs issues a
recommended decision to the claimant.
11) Does claimant object to the recommended decision?
If yes, go to step 18;
If no, go to step 12.
12) FAB reviews entire record, including the draft recommended
decision and any additional evidence or testimony submitted by the
claimant.
13) FAB reviews the written record, holds an overall hearing, and
reviews any additional information submitted by the claimant.
14) Is the information adequate for FAB to make a decision?
If yes, go to step 15;
If no, go to step 17.
15) FAB issues final decision.
16) Claimant can seek reconsideration of FAB decision within 30 days,
request claim be reopened with submission of new information, or
appeal decision to U.S. courts.
17) Claim returned to Labor‘s Office of Workers‘ Compensation Programs
for development. Return to step 10.
18) Claimant can request either a written record review or an oral
hearing from Labor‘s Final Adjudication Branch (FAB).
Go to step 13.
Source: GAO analysis of Labor and NIOSH claim processes.
[End of section]
Appendix III: NIOSH and Labor's Performance Measures:
Table 6: NIOSH Performance Measures for Fiscal Year 2009:
Goal 1: Provide a dose reconstruction to all claimants in a timely
manner:
Measure: Complete a percentage of initial cases within 6 months of
receipt[B];
Target: 35%;
Baseline performance[A]: 31%;
Target achieved: N/A.
Measure: Complete a percentage of legacy cases during fiscal year
2009[C];
Target: 50%;
Baseline performance[A]: 54%;
Target achieved: N/A.
Measure: Complete a percentage of returns from Labor within 6 months
of being sent back to NIOSH[D];
Target: 40%;
Baseline performance[A]: Baseline not set;
Target achieved: N/A.
Goal 2: Deliver an evaluation report within 180 days for §83.13
petitions[E]:
Measure: Complete a percentage of evaluation reports within 180 days;
Target: 60%;
Baseline performance[A]: Baseline not set;
Target achieved: N/A.
Measure: Provide to the board and petitioners a schedule to complete
those evaluation reports that were not completed within 180 days;
Target: No target;
Baseline performance[A]: Baseline not set;
Target achieved: N/A.
Source: NIOSH.
[A] A baseline is a starting point for measuring performance, while a
target is the level of performance an agency wishes to achieve. Actual
performance for fiscal year 2009 was not available (N/A).
[B] NIOSH defines "initial cases" as cases that have been sent to
NIOSH for a dose reconstruction for the first time.
[C] NIOSH defines "legacy cases" as cases that have been at NIOSH for
2 years or more without a completed dose reconstruction.
[D] NIOSH defines a "rework" as a case that has been returned to NIOSH
by Labor to perform a dose reconstruction again using all currently
approved methodologies applicable to that case.
[E] These are Special Exposure Cohort petitions submitted to NIOSH
from petitioners. NIOSH then develops an evaluation report that
describes NIOSH's determination of the petition.
[End of table]
Table 7: Department of Labor Performance Measures in 2008:
Measure: 1. Create claims within 5 calendar days of receipt;
Target: 95%;
Actual, Part B: 96.8%;
Actual, Part E: 97.0%;
Target achieved: Yes.
Measure: 2. Take initial action within 14 calendar days of creating
claim;
Target: 90%;
Actual, Part B: 96.0%;
Actual, Part E: 95.7%;
Target achieved: Yes.
Measure: 2. Take initial action within 25 calendar days of creating
claim;
Target: 3: 95%;
Actual, Part B: 3: 97.7%;
Actual, Part E: 3: 97.5%;
Target achieved: 3: Yes.
Measure: 3. Complete initial processing on claims within 180 days of
receipt;
Target: 65%;
Actual, Part B: 77.6%;
Actual, Part E: 54.9%;
Target achieved: No.
Measure: 3: Complete initial processing on claims within 300 days of
receipt;
Target: 4: 85%;
Actual, Part B: 4: 89.1%;
Actual, Part E: 4: 69.1%;
Target achieved: 4: No.
Measure: 4. Average number of days to complete initial processing
(Government Performance and Results Act [GPRA] goal);
Target: Part B: 226 Part E: 290;
Actual, Part B: 164.6;
Actual, Part E: 283.7;
Target achieved: Yes.
Measure: 5. Complete probability of causation calculations and issue
recommended decisions after claims are returned from NIOSH within 45
days receipt;
Target: 90%;
Actual, Part B: 89.8%;
Actual, Part E: N/A[A];
Target achieved: No.
Measure: 6. Actions taken on claims affected by Special Exposure
Cohorts and Program Evaluation Plans and Program Evaluation Reports
within 45 days;
Target: 50%;
Actual, Part B: 45.0%;
Actual, Part E: N/A[A];
Target achieved: No.
Measure: 6. Actions taken on claims affected by Special Exposure
Cohorts and Program Evaluation Plans and Program Evaluation Reports
within 90 days;
Target: 7: 95%;
Actual, Part B: 7: 77.8%;
Actual, Part E: 7: N/A[A];
Target achieved: 7: No.
Measure: 7. Issue final decisions within 30 days of receipt of
claimant's waiver of the right to a hearing or a review of record;
Target: 87%;
Actual, Part B: 91.0%;
Actual, Part E: 91.0%;
Target achieved: Yes.
Measure: 7: Issue final decisions within 75 days of receipt of
claimant's waiver of the right to a hearing or a review of record;
Target: 87%;
Actual, Part B: 8: 96.2%;
Actual, Part E: 8: 95.3%;
Target achieved: 8: Yes.
Measure: 8. Issue final decisions on all other approved or no-contest
claims within 75 days of the recommended decision (GPRA goal);
Target: 87%;
Actual, Part B: 92.1%;
Actual, Part E: 89.7%;
Target achieved: Yes.
Measure: 9. Issue final decisions for review of the written record
within 75 days of receipt of the request for review of the written
record (GPRA goal);
Target: 87%;
Actual, Part B: 89.7%;
Actual, Part E: 89.2%;
Target achieved: Yes.
Measure: 10. Issue final hearing decisions within 180 days of the
receipt of the request for hearing (GPRA goal);
Target: 87%;
Actual, Part B: 90.2%;
Actual, Part E: 87.5%;
Target achieved: Yes.
Measure: 11. Take initial action on remands or the director's order
within 30 days of receipt of the case;
Target: 90%;
Actual, Part B: 95.5%;
Actual, Part E: 91.0%;
Target achieved: Yes.
Measure: 12. Make recommended decision after remand or director's
order within 120 days;
Target: 75%;
Actual, Part B: 92.9%;
Actual, Part E: 80.8%;
Target achieved: Yes.
Measure: 13. Process lump-sum payments within 15 days of receiving
claimant's EN-20 form;
Target: 90%;
Actual, Part B: 99.0%;
Actual, Part E: 99.4%;
Target achieved: Yes.
Measure: 14. Complete reopening requests in district office within 90
days;
Target: 75%;
Actual, Part B: 88.9%;
Actual, Part E: 86.6%;
Target achieved: Yes.
Measure: 15. District office responds to phone inquiries for both
Parts B and E within 2 work days;
Target: 90%;
Actual, Part B: 94.8%;
Actual, Part E: 94.8%;
Target achieved: Yes.
Measure: 16. Final Adjudication Branch responds to phone inquiries for
both Parts B and E within 2 work days;
Target: 90%;
Actual, Part B: 94.8%;
Actual, Part E: 94.8%;
Target achieved: Yes.
Measure: 17. Respond to requests for medical authorization within 5
calendar days of thread opening;
Target: 75%;
Actual, Part B: 86%;
Actual, Part E: 86%;
Target achieved: Yes.
Measure: 18. Complete wage loss recommended decisions within 240 days;
Target: 75%;
Actual, Part B: N/A[B];
Actual, Part E: 32.3%;
Target achieved: No.
Measure: 18. Complete impairment recommended decisions within 180 days;
Target: Target: 75%;
Actual, Part B: N/A[B];
Actual, Part E: 40.2%;
Target achieved: No.
Source: Department of Labor data.
Note: Two of these measures were not met because of performance on
Part B claims and two were not met because of performance on Part E
claims. However, one missed target for Part E was established in 2007.
[A] This is not applicable to all Part E cases, because only Part B
cases are considered for special exposure cohorts.
[B] This is not applicable to Part B, because only Part E cases
qualify for compensation for wage loss and impairment.
[End of table]
[End of section]
Appendix IV: Comments from the Department of Energy:
Department of Energy:
Washington, DC 20585:
March 9, 2010:
Mr. Andrew Sherrill:
Director:
Education, Workforce and Income Security Issues:
U.S. Government Accountability Office:
Room 5928:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Sherrill:
In response to your February 2, 2010, request for comments from the
Department of Energy (DOE) on Energy Employees Compensation:
Additional Independent Oversight and Transparency Would Improve
Program's Credibility (GAO-I 0-302), the Office of Health, Safety and
Security provides the following comment:
With regard to page 45 of the report, Recommendation 2 states:
"Establish a formal agreement and action plan with the Secretary of
Energy to release more information, where appropriate, in the site
exposure matrix database in order to allow greater public access and
input. In doing so, actively seek additional information from worker
representatives and site experts about job descriptions, processes,
and potential exposure."
DOE has requested from the Department of Labor a static copy of the
site exposure matrix database, and will screen the database and redact
information that would pose a national security risk if released so
the database can be made available to the public.
If you have any questions, please contact me at (202) 287-6071, or
your staff my contact Dr. Andrew Weston-Dawkes at (301) 903-3526.
Sincerely,
Signed by:
Glenn S. Podonsky:
Chief Health, Safety and Security Officer:
Office of Health, Safety and Security:
[End of section]
Appendix V: Comments from the Department of Labor:
U.S. Department of Labor:
Employment Standards Administration:
Office of Workers' Compensation Programs:
Washington, D.C. 20210:
February 26, 2010:
Andrew Sherrill:
Director:
Education, Workforce, and Income Security Issues:
United States Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Sherrill:
I am writing in response to the draft of your report on the Energy
Employees Occupational Illness Compensation Program Act (EEOICPA)
Thank you for allowing us the opportunity to comment on the report
prior to its publication.
First, we appreciate the report's findings that DOL has developed
strategies to expedite case processing and performance measures to
monitor timeliness, as well as the acknowledgment that these efforts
have helped reduce the case backlog and shorten processing times. In
addition, we are pleased with the finding that administrative costs
appropriately reflect EEOICPA' s science-based adjudication process
and the highly technical nature of the claims.
There is one area (concerning our Site Exposure Matrices ” SEM) for
which we would like to provide some clarification. First, one
recommendation in the report is that the Department of Labor (DOL)
should increase transparency by making the SEM available to the
public. Currently, the SEM is on DOL's web site, however it is not in
the format that is used by the claims staff during the claims process.
The SEM was developed in close coordination with the Department of
Energy (DOE), and they own and control dissemination of the
information regarding toxic substances, locations, and processes in
the nuclear complex. They have indicated that the detailed version of
SEM that the claims staff use could potentially pose a threat to
national security if it were made public. We recognize that this
creates a transparency issue and have been working with DOE for some
time to determine whether and how we could place more of the detailed
version of the SEM on our web site. DOE has indicated they are
developing a plan for consideration of inclusion of more information
on the SEM webpage, and we will continue to work closely with them on
this issue.
In addition, the report does not clearly describe how the SEM is used
during the claims process. On the one hand, it underestimates SEM as a
tool in the development of a claim by leaving the impression that it
is used to hinder, rather than help, the claimants. SEM was created
specifically because DOL recognized that it would be difficult for
employees or their survivors to provide us with information concerning
the toxic substances that may have been present at the facilities
where the employees worked and the medical conditions that may relate
to exposure to such substances. The database was created to assist the
claimants with this information in order to make a case towards
acceptance.
At the same time, the report tends to overestimate the importance of
SEM in the adjudication process by leaving the impression that DOL
relies on SEM to render compensation decisions. The SEM is not used to
deny a claim, and DOL procedures and training reiterate that SEM is
not a stand alone decision tool and that all development avenues must
be pursued. DEEOIC places strong weight on claims that are supported
by the information contained in SEM; however, the inverse is not true.
Claims staff continues to develop claims even if no link or exposure
is contained in SEM (through the use of district medical consultants,
industrial hygienists, health physicists, and toxicologists, as
appropriate).
We appreciate your team's thorough analysis of the program and their
work with our policy and claims staff throughout this last year. We
are always looking to improve the 'program and will be planning ways
to implement changes in light of your recommendations.
Sincerely,
Signed by:
Shelby Hallmark:
Director:
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
Contact:
Andrew Sherrill, Director, Education, Workforce, and Income Security
(202) 512-7215, sherrilla@gao.gov:
Acknowledgments:
Meeta Engle, Assistant Director, managed this assignment. Other staff
who made key contributions to this assignment were Emily Gunn, Lara
Laufer, and Suzanne Rubins. In addition, Jessica Botsford provided
legal assistance; Luann Moy assisted with the methodology; Susan
Bernstein provided writing assistance; and James Bennett produced the
graphics.
[End of section]
Related GAO Products:
Energy Employees Compensation: Actions to Promote Contract Oversight,
Transparency of Labor's Involvement, and Independence of Advisory
Board Could Strengthen Program. [hyperlink,
http://www.gao.gov/products/GAO-08-4]. Washington, D.C.: October 26,
2007.
Energy Employees Compensation: Adjustments Made to Contracted Review
Process, but Additional Oversight and Planning Would Aid the Advisory
Board in Meeting Its Statutory Responsibilities. [hyperlink,
http://www.gao.gov/products/GAO-06-177]. Washington, D.C.: February
10, 2006.
Federal Compensation Programs: Perspectives on Four Programs.
[hyperlink, http://www.gao.gov/products/GAO-06-230]. Washington, D.C.:
November 18, 2005.
Energy Employees Compensation: Many Claims Have Been Processed, but
Action Is Needed to Expedite Processing of Claims Requiring Radiation
Exposure Estimates. [hyperlink,
http://www.gao.gov/products/GAO-04-958]. Washington, D.C.: September
10, 2004.
Energy Employees Compensation: Even with Needed Improvements in Case
Processing, Program Structure May Result in Inconsistent Benefit
Outcomes. [hyperlink, http://www.gao.gov/products/GAO-04-515].
Washington, D.C.: May 28, 2004.
Veterans' Benefits: Independent Review Could Improve Credibility of
Radiation Exposure. [hyperlink,
http://www.gao.gov/products/GAO/HEHS-00-32]. Washington, D.C.: January
8, 2000.
[End of section]
Footnotes:
[1] The Energy Research and Development Administration and the Atomic
Energy Commission.
[2] NIOSH is part of the Centers for Disease Control and Prevention,
which is an agency in the Department of Health and Human Services.
[3] Physicians we contacted included members of specialty societies
such as the American College of Occupational and Environmental
Medicine, two former Medical Directors for Part E, and occupational
specialists who are actively involved in assisting claimants.
[4] 42 U.S.C. §§ 7384-7385s-15.
[5] 42 U.S.C. § 7384(a)(4). See also Executive Order 13179, December
7, 2000.
[6] Part E replaced Part D, which had authorized Energy to enter into
agreements with states to assist Energy contractor employees in filing
state workers' compensation claims. In our prior work, we had found
that the structure of the Part D program could result in inconsistent
benefit outcomes for claimants. See GAO, Energy Employees
Compensation: Even with Needed Improvements in Case Processing,
Program Structure May Result in Inconsistent Benefit Outcomes,
[hyperlink, http://www.gao.gov/products/GAO-04-516] (Washington, D.C.:
May 28, 2004). Part E was created in 2004 with the goal of creating a
fair and equitable alternative to state workers' compensation programs
under which workers had encountered chronic delays and inefficiencies.
[7] Under Part B, compensation of $50,000 and payment of medical
expenses is also available for employees exposed to uranium who have
previously been awarded benefits by the Department of Justice under
Section 5 of the Radiation Exposure Compensation Act.
[8] 42 U.S.C. § 7384o.
[9] GAO, Energy Employees Compensation: Actions to Promote Contract
Oversight, Transparency of Labor's Involvement, and Independence of
Advisory Board Could Strengthen Program, [hyperlink,
http://www.gao.gov/products/GAO-08-4] (Washington, D.C.: Oct. 26,
2007).
[10] 42 U.S.C. § 7384q. The act initially designated workers from four
specific sites as members of the Special Exposure Cohort. As of March
2010, 51 additional classes of workers had been added to the Special
Exposure Cohort since that time. On March 5, 2010, the Advisory Board
on Radiation and Worker Health recommended to the Secretary of HHS the
addition of five additional classes of employees to the Special
Exposure Cohort. These five classes are awaiting approval by the
Secretary. According to NIOSH, if approved, the additional classes of
employees will also become part of the Special Exposure Cohort in
early May 2010.
[11] According to Labor officials, the site exposure matrix database
does not include radioactive substances except those whose properties
may have toxic effects independent of radiation. For example,
inhalation of soluble forms of uranium may cause kidney disease.
[12] 42 U.S.C. § 7384n(b) and (c).
[13] 42 U.S.C. § 7384n(b).
[14] The Department of Health and Human Services' NIOSH has issued the
required guidelines at 42 C.F.R. Part 81 which state in § 81.2 that,
as required by EEOICPA, the guidelines "produce a determination as to
whether it is at least as likely as not (a 50 percent or greater
probability) that the cancer of the covered employee was related to
radiation doses incurred by the employee in the performance of duty."
[15] Also at Radiation Exposure Compensation Act Section 5 facilities.
[16] 42 U.S.C. § 7385s-4(c).
[17] Department of Labor's Office of Inspector General, Energy
Employees Occupational Illness Compensation Program-DOL Could Do More
to Assist Claimants and Further Improve Timeliness, (Washington, D.C.:
Nov. 12, 2008), 04-09-002-04-437.
[18] This and the following calculations are based on individual
cases, which for some include more than one claim or claimant.
[19] Processing times are calculated from the date of filing to the
date of the final decision. This time includes the average days spent
preparing the case, performing dose reconstructions, preparing
recommended decisions, and issuing final decisions.
[20] NIOSH requests records, compiles data, evaluates exposure
records, interviews the claimant, develops detailed information,
identifies coworkers, reports to the claimant summarizing information
from the interview, incorporates additional claimant information,
requests additional records from Energy, reviews the adequacy of
monitoring data and completeness of the records, characterizes
internal and external exposure environments, and conducts a final dose
reconstruction calculation.
[21] This is the average time added to the process and includes cases
with single and multiple amendments.
[22] The vast majority (97 percent) of cases returned to NIOSH for
rework because of new information about the individual worker were
cases that had been previously denied or recommended for denial based
on NIOSH's initial dose reconstruction. That is, they did not
initially meet the 50 percent probability of causation threshold. Of
the 3 percent of cases returned for rework that initially met the 50
percent probability of causation threshold, 15 percent were later
found not to meet the threshold. Of the 97 percent of cases returned
for rework that did not initially meet the causation threshold, only
10 percent were later found to have met the threshold. Almost half of
the 97 percent of cases that did not initially meet the threshold that
were sent to NIOSH for rework have not been returned from NIOSH to
Labor. Another 10 percent had been returned, but Labor had not yet
issued a final decision. Fifteen percent of cases that had initially
met the threshold for approval and were sent to NIOSH for rework had
not been returned from NIOSH to Labor, while another 7 percent that
were returned were still awaiting a final decision from Labor.
[23] NIOSH does not track how much more time is added to the process
as a result of these revisions to site profiles or dose reconstruction
methods, because claims are returned to NIOSH for many different
reasons--including amendments.
[24] Site profiles contain information about the work site necessary
to establish exposure parameters--namely historical information on
radioactive materials at sites, activities at sites, worker monitoring
programs, and detection limits.
[25] Even after information is found, Energy must review the
information to determine if it is classified, which can delay the
information gathering process. Energy has procedures in place that
allow NIOSH scientists access to the classified documents.
[26] The Center for Construction Research and Training (formerly known
as the Center to Protect Workers' Rights) is a nonprofit organization
created by the Building and Construction Trades Department of the
American Federation of Labor-Congress of Industrial Organizations (AFL-
CIO). Since 1990, it has conducted applied research and provided
training and service to the construction industry. When Labor is
unable to find a claimant's employment information from Energy or his
or her employer, the center researches and provides information for
construction and trade worker claims.
[27] Labor reported that several claims examiners left for other
government compensation programs.
[28] Department of Labor, Office of the Ombudsman for Part E, 2008
Annual Report of the Ombudsman for Part E to Congress, (Washington,
D.C.: Feb. 13, 2009). The Ombudsman's office and the annual report to
Congress are required under EEOICPA. 42 U.S.C. § 7385s-15. Although
the Ombudsman's authority was initially limited to Part E, in October
2009, the EEOICPA was amended to expand the Ombudsman's authority to
Part B. Pub. L. No. 111-84, Div. C, Title XXXI, Subtitle D, § 3142(a).
[29] These 5,000 cases are the oldest Part B cases sent to NIOSH in
the beginning of the program; 4,991 have received final dose
reconstructions or were withdrawn by Labor, administratively closed,
qualified for a Special Exposure Cohort, sent with draft dose
reconstruction reports to the claimant for review, or returned to
NIOSH by Labor for rework.
[30] NIOSH has identified approaches to moving forward on the
remaining 9 cases.
[31] In addition, NIOSH's start-up process of developing most site
profiles, establishing procedures, and hiring staff is now complete
and does not affect processing time for cases reviewed by NIOSH, as we
previously reported in September 2004: GAO, Energy Employees
Compensation: Many Claims Have Been Processed, but Action Is Needed to
Expedite Processing of Claims Requiring Radiation Exposure Estimates,
[hyperlink, http://www.gao.gov/products/GAO-04-958] (Washington, D.C.:
Sept. 10, 2004).
[32] The practice of rough estimation, described in NIOSH's
regulations at 42 CFR 82.10(k), allows NIOSH to more quickly complete
dose reconstructions for certain kinds of claims. According to NIOSH,
this process of rough estimation prioritizes cases based on their
likelihood of compensation. It allows for the reconstruction of doses
only so far as to provide an unambiguous compensation decision to
Labor. NIOSH may substantially overestimate the potential dose
received by an employee when compensation seems unlikely based on the
type of cancer and length of employment. In this instance, if the
probability of causation still does not reach or exceed 50 percent,
despite the overestimation of the exposure dose, NIOSH can easily
determine that the case will not be compensated.
[33] Office of Management and Budget, Detailed Information on the
Energy Employees Occupational Illness Compensation Program Assessment,
Assessment Year 2007.
[34] Department of Labor's Office of Inspector General, Energy
Employees Occupational Illness Compensation Program-DOL Could Do More
to Assist Claimants and Further Improve Timeliness (Washington, D.C.:
Nov. 12, 2008), 04-09-002-04-437.
[35] While Labor is the designated agency responsible for
administering the program, the Department of Health and Human Services
is responsible for administering the dose reconstruction process, as
established in Executive Order 13179.
[36] In addition to these recommendations to improve timeliness
measures, the IG also recommended that Labor expand the responsibility
of Resource Centers to include assisting claimants by providing them
more information about the claims process, improve the methods through
which Labor obtains claimant information, improve interagency
agreements to more clearly outline data-gathering methods, institute a
comprehensive workload tracking system to monitor the status of claims
at other agencies and to monitor the caseload of claims examiners, and
increase communication with claimants. Labor agreed with these
recommendations in part.
[37] These amounts do not include medical benefits paid.
[38] NIOSH counts initial dose reconstructions and reworks as separate
cases. Counting them as one case would result in a cost per case of
about $15,000 rather than $12,000.
[39] We could not calculate the administrative costs for each case for
Energy because Energy does not have data going back to the inception
of the program and because Energy tracks requests for its services but
does not track them by case, so one case may generate multiple
requests, such as a request from Labor and a request from NIOSH.
[40] 42 U.S.C. § 7384q(b).
[41] New Special Exposure Cohort classes are initiated either by NIOSH
or by petition from claimants or their representatives. NIOSH prepares
evaluation reports for all petitions that qualify for evaluation.
NIOSH may agree with the petitioners that facility data are too
limited for dose reconstruction to be feasible, propose revisions to
the time period or workers covered by the proposed petition, or
propose methods of remedying the effect of limited data on dose
reconstructions. Such dose reconstruction methods may rely on general
knowledge about production processes and radioactive elements and/or
incorporate radiation-monitoring data from facilities NIOSH considers
comparable.
[42] The act requires that NIOSH complete its evaluation within 180
days. 42 U.S.C. § 7384q(c)(1). This requirement was added in 2004 by
Pub. L. No. 108-375, Div. C, Title XXXI, Subtitle E, § 3166(b)(1)(B).
[43] NIOSH's dose reconstruction methods give the highest priority to
individual worker radiation-monitoring records, but recognize that
such records are not available for all workers. Its dose
reconstruction regulation provides that when complete, accurate
individual workplace monitoring records are not available, NIOSH may
use a combination of other information sources to estimate radiation
exposure (and dose to the affected organ). These other sources include
radiation-monitoring records of coworkers with comparable exposure
risks, facility monitoring records, and supplemental information about
radioactive elements and production processes. See 42 C.F.R. § 82.2.
[44] NIOSH officials described this overestimation process as follows:
When faced with equally plausible radiation exposure scenarios during
dose reconstruction, the agency will always incorporate the scenario
that results in the highest exposure to the worker. It may do this,
for example, when a worker's cancer is not in an organ for which
NIOSH, in collaboration with the National Cancer Institute, has
developed risk models: NIOSH will select among comparable "substitute"
organs the one that is most susceptible to cancer risk from the type
of radiation exposure the worker was likely to have had. Such organ
substitution models are reviewed both internally and externally.
[45] 42 U.S.C. § 7384n(c)(3)(A). The technical documents use the term
"credibility limit" to indicate the maximum acceptable level of risk
of estimating an exposure that is too low. If a "best estimate" of the
dose were to be made, a 50 percent credibility limit, which means that
in 50 cases out of 100, the actual probability of causation would be
lower than the estimated probability of causation. Instead, the 99
percent credibility limit is a more generous estimate, assigning
increased cancer risk at far lower actual levels of radiation exposure
than the best estimate. In addition, it means that in 1 case out of
100, the actual probability of causation would be higher than the
estimated probability. Conversely, in 99 cases out of 100, the actual
probability of causation received would be lower than the estimated
probability.
[46] According to Labor officials, the site exposure matrix does not
include radioactive substances except those whose properties may have
toxic effects independent of radiation. For example, inhalation of
soluble forms of uranium particles may cause kidney disease.
[47] The site exposure matrix has many features to help claims
examiners perform their research: For example, information about
chemicals may be found through searches of the official scientific
name, trade or commercial names, or informal terms, and the matrix
contains links to documentation about uses, properties, and acute and
chronic health effects.
[48] The committee reviews the results of the contractor's research
and determines both the research priorities and the additions and
modifications to the site exposure matrix. The contractor reports
weekly to the committee on changes to the matrix.
[49] At our request, Labor arranged for GAO staff to view the site
exposure matrix's search capabilities for one site. While our
observations are consistent with Labor's description of the site
exposure matrix's search capabilities, we remain aware that limited
public availability contributes to doubts about the site exposure
matrix.
[50] The terms used are "additive" or "synergistic," referring to the
concept that toxic substances may act in combination in ways that
magnify their adverse effects on health, doubling or even multiplying
the degree of potential harm.
[51] The physicians' role is limited to helping interpret medical
evidence and responding to questions from the claims examiners, who
are responsible for making all legal determinations.
[52] 20 C.F.R. § 30.213. For Part B claims, Labor is required to use
the guidelines issued by the Department of Health and Human Services'
NIOSH at 42 C.F.R. Part 81, which state at § 81.2 that, as required by
EEOICPA, the guidelines "produce a determination as to whether it is
at least as likely as not (a 50 percent or greater probability) that
the cancer of the covered employee was related to the radiation doses
incurred by the employee in the performance of duty."
[53] 42 U.S.C. § 7384n(b).
[54] 42 U.S.C. § 7385s-4(c). Labor must also find that it is at least
as likely as not that the exposure to the toxic substance was related
to employment at a Department of Energy facility.
[55] See preamble to Department of Labor's Final Rule "Performance of
Functions; Claims for Compensation under Energy Employees Occupational
Illness Compensation Program Act of 2000, as amended," 71 Fed. Reg.
78520, December 29, 2006.
[56] According to Labor officials, the contents of the site exposure
matrix are not classified and excerpts may be safely disclosed to
individual claimants, but all of the data together could be considered
sensitive. If a printout of the matrix search result is in the file,
Labor sends it along with the rest of the claim file in response to a
claimant's Privacy Act request for his or her own records. However,
claims examiners are not consistent about printing out their matrix
search results.
[57] NIOSH's work preparing site profiles and dose reconstruction
methods involves research into radioactive materials, production,
building conditions, incidents, and worker monitoring and safety
practices at Energy and Atomic Weapons Employer sites throughout the
country from World War II through the present. To facilitate this
research while protecting national security, Energy has entered into
agreements with NIOSH regarding access to documents cleared for review
and granted security clearances to allow NIOSH direct access to
classified documents.
[58] The Ombudsman is also authorized to recommend that Labor
establish additional claimant resource center sites. 42 U.S.C. § 7385s-
15(c).
[59] Labor requires claims examiners to take customer service training
annually and instituted a program in 2007 to monitor calls between
claimants and customer service representatives--agency representatives
who can answer basic questions about the status of the claim. This
program, however, does not monitor calls between claimants and claims
examiners, and agency officials could not tell us whether the
monitoring program had any effect on customer complaints.
[60] The amendment to EEOICPA expanding the Labor Ombudsman's
authority to Part B also directed the Labor Ombudsman to work with the
NIOSH Ombudsman. Pub.L.No. 111-84, Div. C, Title XXXI, Subtitle D, §
3142(a), (42 U.S.C. §7385s-15(g)).
[61] For convenience we refer to these two positions as claimant
liaisons, although each has a unique title.
[62] Cases may move back and forth between NIOSH and Labor because
NIOSH, Labor, or claimants may identify new information, such as new
types of cancer or a change in employment information.
[63] Dose reconstruction methods and site profiles are revised on an
as-needed basis, frequently triggered by new information or modified
scientific approaches.
[End of section]
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