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Every breath you take

Today, I circulated this article published in the Dayton Daily Press, “Billions Paid to Sickened Energy Plant Workers” http://bit.ly/1GhwuMt.  It was less than an hour after I emailed this article before I received a call from a Rocky Flats claimant.  Mind you, the call came in on Sunday morning.  His greeting was, “You can blame DOL for my death when I die.” 

Naturally, I was upset and asked what was wrong.  He told me that he has been waiting for two months for the Department of Labor’s Division of Energy Employees Occupational Illness Compensation Program (DEEOIC) to approve his necessary oxygen therapy equipment.  Two months!!  This claimant took exception to this statement made by DEEOIC,

It can be really hard for them to breathe,” Leiton said of beryllium disease. “They need oxygen, medications and to be monitored. It can be real tough for them.”

He said he wakes up in the middle of the night with problems breathing. If DEEOIC understands the need for claimants to have oxygen to breathe because of their covered disease, why is this worker still waiting  for this lifesaving equipment?

Back in October of 2013, DEEOIC issued a Final Bulletin on how claims for durable medical equipment (DME) would be processed.  This directive not only addressed items such as wheel chairs and hospital beds but also the equipment necessary to provide the very essence of life – oxygen – was subjected to this very complicated process.

A few months after this bulletin was released, I and other advocates received numerous complaints from claimants about the problems they were experiencing with having their oxygen equipment paid for by DEEOIC.  These claimants had been approved for years under the program and never once had a problem.  Claimants told me DEEOIC denied their previously approved equipment, with some claimants relating that the supply companies were forced to bill the claimant for thousands of dollars because DEEOIC found that the rationalization by the physician was inadequate.  Other claimants told me they just decided to let Medicare pay for this equipment because they didn’t have the strength to fight the system. 

Two months ago, the advocates had their second annual meeting with the federal agencies responsible for the program.  One advocate suggested that DEEOIC develop a form for durable medical equipment, similar to what is used for the Black Lung and Federal Employees Compensation programs.

Black lung certificate of medical necessity http://systems.acs-shc.com/DOL-PROD-DOC/CM-893.pdf

FECA form http://systems.acs-shc.com/DOL-PROD-DOC/DME_form_011205.pdf

That idea was rejected and instead this Final Bulletin was issued last month by DEEOIC, http://1.usa.gov/1KeucQJ

I understand DEEOIC needs to be vigilant and prevent fraudulent charges under the program and I applaud their efforts. But we’re talking about equipment that supplies oxygen to workers with lung damage. 

These workers have been diagnosed with a lung condition like chronic beryllium disease or silicosis and who have been accepted by DEEOIC that these conditions were the result of their work place exposures.  It should not be necessary for a personal physician to write a fully rationalized opinion on why the worker needs oxygen.  A simple form as mentioned above could supply the claims examiner the relevant documentation that the worker needs the oxygen deliver system. 

These workers are not scamming the system. DEEOIC already determined that. They are sick.  They have a firm diagnosis of a lung condition and have been accepted by DEEOIC.  They are sick and should not need to worry about whether they will receive the medical equipment and services needed to sustain life and improve its quality.

I urge DEEOIC to revise its policy and make it simpler and quicker for claimants to have their medical necessities approved.  It should not take months to approval.  There should be no delays.

 

 

 

Comments (1)

Welcome 2015 - I think!

Wishing everyone a healthy and happy New Year!

I am excited about new advisory board to the Department of Labor’s Division of Energy Employees Occupational Illness Compensation (DEEOIC).  It’s been a tough road for the advocates for the Department of Energy’s sick nuclear weapons workers.  I remember one year, must have been 2010 or 2011, Cold War Patriots held an advocates meeting in the D.C. area.  One of the activities was to visit Congress to urge them to include the Udall/Alexander legislation in the National Defense Authorization Act (NDAA).  This legislation has always been the vehicle for EEOICPA.  We were split into groups so that we could reach as many congressional offices as possible.  I remember running into one group of advocates after our first meeting of the day.  They informed me that there would be no amendments attached to NDAA that year.  I was not a happy camper.  But I figured this is how legislation works.  You never get it on the first try.  We needed to educate Congress better.

Cold War Patriots and advocates continued to visit Congress since 2010 explaining the dire need for such an advisory board.  In 2013, we came “this” close to getting the amendment attached to NDAA.  It came down to the wire but the amendment was rejected because an offset to fund the board could not be found.  To say that I, and maybe some other advocates who worked so hard on this issue, was devastated would be an understatement.  The congressional staffers I worked with did their best and promised to try again in 2014.

The legislators kept that promise.  Again, Senators Mark Udall and Lamar Alexander and Congressmen   Ed Whitfield, Ed Perlmutter and Jared Polis championed the cause of the sick workers or their survivors.  While it also came down to the wire again, they were successful in convincing the other responsible offices for NDAA (House and Senate Armed Services Committees, for example) on the need for this advisory board.  To those individuals involved in making this happen, you have my deepest appreciation.

Yes, the claimants now have the board legislated.  This board will advise DEEOIC on the Site Exposure Matrix (SEM,) which should include reviewing the health effects of toxic exposure, review of Part B lung claims, provide medical guidance to the claims examiners and review the DOL expert reports to ensure quality and consistency.  It’s great!  As I said, I’m excited.  There are so many qualified and knowledgeable people who are fair in their judgments but who are also committed to seeing this compensation program administered as Congress intended who can serve on the board.  I cannot wait to see President Obama’s appointments.

Unfortunately, unlike the benefits provided claimants and administrative costs to adjudicate claims under EEOICPA or even the board that offers advice on dose reconstruction and Special Exposure Cohort petitions, funding for the DEEOIC board is not mandatory.  Funds need to be appropriated every year. ANWAG and DIAB sent letters to DOL this week requesting that sufficient funds be requested in their budget.  Other advocacy groups will be sending similar letters.  Anybody interest in a bake sale? (This is not my original ideaJ).

The downside already for 2015 is what happened in the House today.  I don’t fully understand the procedure except that I know that the effects of this rule could/will reduce the benefits a disabled worker receives from Social Security Disability Insurance (SSDI) by 20%, http://www.offthechartsblog.org/house-rule-could-hurt-vulnerable-disability-beneficiaries/

Many of the sick DOE workers are on SSDI because they are no longer able to work because of the diseases they developed from working daily in the toxic soup at the nuclear weapons facilities and they are unable to qualify for EEOICPA compensation. The ANWAG blog from June 22, 2014 mentions my recollection of how the wage loss amounts were developed ten years earlier. 

One of the meetings I had was with Former Congressman Kurt Weldon’s Chief of Staff, Russ Casso.  I grew up in the Congressman’s district and my parents still lived there.  So I felt comfortable talking with him.  I was on “home-turf” so to speak.  I gave a brief account of George’s many diseases and conditions to Mr. Casso, and the history of his state workers’ compensation claim.

Mr. Casso asked how much money George received from SSDI.  I told him.  Mr. Casso asked how much money George would have received if he was successful with his workers’ compensation claim.  I told him.  The difference between those two amounts is the basis for the wage loss benefits legislated in the reform bill of 2004.

I can only speak to the SSDI claimants who worked at the DOE sites – what the House did today is deplorable, especially for those workers who were denied wage loss. Reducing the paltry sum these sick and dying workers receive under SSDI is an affront to the commitment these workers made to our country.

In addition, retirees from the Rocky Flats and Oak Ridge facilities have had their insurance policies changed.  I have heard reports where, despite DOE’s past assurances,  the health insurance premiums will increase, sometimes to the extent that the premiums are too exorbitant and the life-saving medication placed out of reach for those on SSDI.

These workers’ lives were sacrificed by working to keep America safe during the Cold War without their knowledge or consent.  We must never forget that.  All must be done to compensate them fairly and not deny them what was promised.

I look forward to the DEEOIC advisory board.  I am hopeful that funding will be located to have the members start as soon as they are seated.

I am not looking forward to the future fight for SSDI benefits.  Reducing these benefits is wrong, wrong, wrong.

 

 

 

 

   

 

 

 

 

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Historical moment for Hanford workers - Multiple organizations to sue DOE and Hanford Contractor to protect Hanford workers

We are witnessing a historical moment.  Never before has an intent to sue the Department of Energy (DOE) and its Hanford contractor, Washington River Protection Solutions (WRPS) been filed to protect the health and welfare of the nuclear weapons workers.

Last Spring and at different times, over 20 Hanford workers were exposed to toxic vapors at Hanford's tank farms.  Seattle's King 5 television station's investigative reporter, Susannah Frame provided continuous coverage of these incidents.  I believe this investigative report was instrumental in Hanford's decision to invite a group of experts from DOE's Savannah River Site to investigate the problem.

The report, https://www.documentcloud.org/documents/1349259-hanford-tvat-report-2014-10-30-final.html, is highly critical of Hanford's safety practices.  Of course DOE and WRPS issued statements that they really care about the health and safety of their workers and will review the report and implement changes necessary to protect the workers.

Apparently, the Washington State Attorney General, Bob Ferguson, has heard this all before.  Yesterday he filed an intent to sue DOE and WRPS. The letter states, "...Washington is prepared to seek injunctive relief requiring Energy and WRPS to timely abate the conditions presenting the actual or potential imminent and substantial endangerment..." 

You can read the full letter to DOE and WRPS here, http://www.king5.com/story/news/local/hanford/2014/11/19/hanford-vapors-attorney-general-bob-ferguson-washington/19272283/

This is huge!  But it gets better for the workers.  Today, more groups came forward to protect the workers.  Hanford Challenge, United Association of Plumbers and Steamfitters Local 598 and Washington Physicians for Social Responsibility announced their intent to sue DOE and WRPS to ensure the protection the Hanford workers deserve are provided to them as quickly as possible,

http://www.king5.com/story/news/local/hanford/2014/11/20/hanford-safety-steamfitters-physicians-lawsuit/70019542/

ANWAG salutes King5 television station and reporter Susannah Frame for exposing this problem to the public.  A heartfelt thanks is offered to Attorney General, Bob Ferguson, Hanford Challenge, United Association of Plumbers and Steamfitters Local 598 and Washington Physicians for Social Responsibility for taking action to ensure that the recommendations provided the Savannah River Site experts will be implemented in a timely manner.

And many, many thanks to the Hanford workers for coming forward and revealing the problems they encounter.

The health and safety of the workers must be the number one priority at DOE facilities.  We can no longer afford to have these people placed in harms' way.  There are ways to protect them from exposures and those methods must be employed immediately.  Not just at Hanford, but at Los Alamos, Y-12, Pantex, and other DOE sites.


 





Comments (2)

How do the advocates know what Congress wanted for sick nuclear weapons workers?

You will often read in ANWAG letters, blogs and press releases that the advocates want the Department of Labor’s Division of Energy Employees Occupational Illness Compensation to administer the program according to the original intent of Congress.  How do we know what Congress intended?  Because many of us educated Congress about the problems the sick nuclear weapons workers faced in the states’ workers compensation program. 

Advocates started this education in the late 1990’s, which resulted in the passage of the legislation and again in 2004 when it was realized that workers still couldn’t get a fair shake at the state level (plus the Department of Energy (DOE) was doing a horrendous job with the claims process.)

Janet Michel and I would like to share some personal history with you to explain why we know what this legislation was meant to be.  Janet’s blog can be found here http://bit.ly/1pDMP4Q. 

My husband was sick from the day I met him almost 26 years ago.  We just didn’t realize the cause until seven years later.  In our naivety, George decided to file for workers compensation.  After all, he had the incident report showing he ingested and inhaled plutonium and americium.  His termination papers showed systemic burdens of radioactivity in his bones, lungs and kidneys.  What more could one ask for. 

Despite these documents, we could not find an attorney to represent him against the Department of Energy.  But because of these documents my family, friends and co-workers urged him to move forward with me as his authorized representative.    Needless to say we were blown out of the water - although I did manage to get a Rocky Flats’ expert witness to state, under oath, that a person can drink a cup of plutonium without having any adverse health effects.  Unfortunately, I assumed that the judge would understand that this was a false statement and would award George his compensation.  We were so naïve.

But a few years later we found hope.  In an unprecedented statement, then DOE Secretary, Bill Richardson, apologized to the nuclear weapons workers for placing them in harms’ way without their knowledge and for reimbursing their contractors when the contractors contested workers’ compensation claims for occupational illnesses. Yippee!!  George was finally going to receive what he deserved and needed (it was a little tough having a sick husband with no income or Social Security Disability Insurance (SSDI) and raising two teenagers.)

Secretary Richardson detailed Undersecretary David Micheals to travel to the major DOE sites on a fact finding mission.  One of those locations was for the Rocky Flats workers.  I don’t remember exactly how we were put in touch, but Jeff Egan from DOE, urged us to attend.  We live 200 miles away from Denver.  We had a semi-reliable vehicle and decided to attend.  But then we watched the weather and a blizzard was heading our way.  I called Jeff and explained and again he urged us to take the chance on the drive. 

Fortunately, we beat the storm.  After we gave our 5 minute public comment (2 ½ minutes each) we headed back to our seats.  We were followed by Jeff Egan and Kate Kimpan, also with DOE.  They told us how powerful our statement was and how the proposed legislation was written “just for George” so that his multiple conditions would be covered. 

We believed them. 

Along with advocates and sick workers (unknown to me at the time) from other areas of the country, letters were written to Congress and the media.  Calls were made by friends and family.  The advocacy paid off and EEOICPA was passed in 2000.  The sick workers would finally receive similar compensation that a worker who broke his leg at work would receive.  Wage loss, medical care and impairment.

Anyone who has been involved with the program in the early years knows what a fiasco Part D, administered by the Department of Energy, was.  George was one of the lucky ones to have his claim processed under Part D, but he was approved for only one condition and that was only after an appeal.

By that time, legislation was again before Congress, this time to reform EEOICPA.  I made my first trip to Washington, DC in 2004.  If you have never been to visit Congressional offices, let me tell you, it’s tough.  Most times the meetings last no more than 20 minutes.  You have to be prepared to explain the situation concisely and allow enough time for a short discussion.  

One of the meetings I had was with Former Congressman Kurt Weldon’s Chief of Staff, Russ Casso.  I grew up in the Congressman’s district and my parents still lived there.  So I felt comfortable talking with him.  I was on “home-turf” so to speak.  I gave a brief account of George’s many diseases and conditions to Mr. Casso, and the history of his state workers’ compensation claim.

Mr. Casso asked how much money George received from SSDI.  I told him.  Mr. Casso asked how much money George would have received if he was successful with his workers’ compensation claim.  I told him.  The difference between those two amounts is the basis for the wage loss benefits legislated in the reform bill of 2004.

Ironically and disturbingly, DEEOIC denied George his wage loss claim despite the fact that three letters by two different personal physicians affirmed that he cannot work because of his one and only covered condition.  But that’s a whole other blog.

Because of the advocacy work, Congress was well aware of the problems the sick workers or their survivors faced in obtaining the compensation they deserved. Congress intended to correct the injustice.  Congress wanted these workers to receive fair treatment.  The legislations show this.  We need to get this program back on track and compensate these sick workers as Congress intended.

 

 

 

 

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Rocky Flats was just a "fancy machine shop". Oh, really??

June 6 will be the 25th anniversary of the FBI raiding Rocky Flats for alleged environmental crimes.  The Arvada Center for the Arts is holding a free, three day event commemorating this event.  http://arvadacenter.org/on-stage/rocky-flats-then-and-now-2014

In anticipation of this event, the Denver Post published an article on Sunday http://www.denverpost.com/news/ci_25874064/feds-raided-rocky-flats-25-years-ago-signaling

I am honored to participate in one panel discussion regarding the worker health issue.  So, I was kind of excited about the publicity.  That is until I read this paragraph

 "Rocky Flats was nothing but a fancy machine shop ... in what was then the middle of nowhere. But we had machining capabilities that nobody else had," said Scott Surovchak, Rocky Flats legacy site manager for the Department of Energy."

Really, Mr. Surovchak?    Just a fancy machine shop?  Do you know what Rocky Flats did for 50 years?

I stewed over this statement all day.  I was furious.  Then the former workers from Rocky Flats and other nuclear weapons sites started emailing me their thoughts on this statement and I decided to write this blog.

Yes, Rocky Flats machined components for a nuclear weapon.  In fact, for those of you who are not familiar with nuclear weapons, they machined the actual plutonium pit.  But the activities at Rocky Flats didn’t stop at machining parts.  There were chemical processes to retrieve the valuable radioactive materials from waste products.  For instance there was a molten salt extraction process to recover americium from Plutonium 241, http://pubs.acs.org/doi/abs/10.1021/bk-1980-0117.ch032.  In the early years there was also a foundry in Building 881. This foundry “cast enriched uranium into spherical shapes that were sent directly to machining.” http://www.lm.doe.gov/land/sites/co/rocky_flats/HAER/base/Buildings/881.htm. 

If the statement that Rocky Flats was just a fancy machine shop, I have to ask, what respectable machine shop would not have a Criticality Lab?  Yup, the Rocky Flats fancy machine shop had one.  http://oralhistory.boulderlibrary.org/interview/oh1179/

This statement does a great disservice to the thousands of women and men who worked not only at Rocky Flats but at all of the nuclear weapons facilities.  It trivializes the serious and dangerous work performed by the dedicated employees during the Cold War.

I was a bit hesitant in writing this blog.  Am I sure I want to stir things up right before the Arvada Center’s event?  Will this jeopardize the Alliance of Nuclear Worker Advocacy Groups (ANWAG) and DEEOIC Interim Advisory Board (DIAB) working relationship with DOE?  Was it possible that the reporter misstated Mr. Surovchak’s  statement or took it out of context?

As I said, earlier, I received a number of replies from the former workers.  The one that convinced me that this blog needed to be written came from Mr. Maurice Copeland.  Mr. Copeland is a former worker from the Kansas City Plant and DIAB Board member.  He is also the petitioner to have that site included in the Special Exposure Cohort.  He emailed me and stated that the Deputy Site Manager referred to the Kansas City Plant “as just another manufacturing plant.”  Did a memo go out directing the site managers to minimize to the public the type of work performed at these sites and the possible impact? 

In 1999, then Secretary Bill Richardson acknowledged and apologized for the harm done to the workers at these facilities.  Is DOE reverting to denying – or at least play down – the serious issues surrounding this program? 

I’m a sick nuclear weapons worker advocate and obviously I take this responsibility as seriously as a mother bear protecting her cubs.  There is also the environmental issue involving these sites.  There are plenty of dedicated advocates for those problems.  If we are going to face the problems the sick workers and the communities face in order to resolve them the federal government needs to be honest and open.  It’s that simple. 

 

 

 

 

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Back by popular demand

Well not really.  But I did have two people ask me when I was going to write another blog.   A couple of exciting things have happened in the past few months which kept me a little too busy to post.  But I’m back now.

You all remember the push to get an advisory board to Department of Labor’s Division of Energy Employees Occupational Illness Compensation legislated (DEEOIC).  Well, despite the best efforts of the Congressional sponsors of the legislation, passage of this bill does not look promising.    

ANWAG decided to act on a suggestion made by Frank Gerlach, of Gerlach and Gerlach.  We decided to form an all volunteer citizens' DEEOIC Interim Advisory Board (DIAB).  You can find more information at diaboard.org and here http://bit.ly/1kwCdk5 and here http://bit.ly/1hqB2Tv

This is not a stunt to get Congress’s attention, although that is desperately needed.  DIAB will be holding town hall meetings and is already working on a paper reviewing two aspects of DEEOIC’s Site Exposure Matrix (SEM).

In a separate but related development, the Departments of Labor, Energy and Health and Human Services accepted ANWAG’s invitation to meet with the advocates to discuss the advocates’ concerns with the program.  We met last week in Denver, with the advocates flying in from all across the country. You can find the summary here http://bit.ly/1fZ4dc0 

The summary is kind of dry and the two faithful readers of this blog wanted to know how I felt about the meeting.  Actually, it wasn’t bad.  In fact, there were some areas where I think we made real headway, the SEM, for instance.  I honestly feel that DEEOIC will take a serious look at the problems we found so far – inaccurate job categories, how  claims examiners (CE) use SEM in deciding claims, etc.  I am also hopeful that the areas in the private SEM will become available to the public.  The areas are the filters the CEs use.   Another area where I think we’ll see improvement is in customer service.  Hopefully, I will no longer hear about rude or unhelpful CEs. 

There were a couple of responses that didn’t make sense to me.  One question we posed to DEEOIC is why DEEOIC considers it to be a conflict of interest for a host home provider to also be an authorized representative.  The answer was that the home health care provider serves two masters – the company who employs the provider and the claimant.  But that can be said for any other authorized representative.  They also have a financial interest in getting a claim paid.  If the claim is denied, then the authorized rep does not collect the fees allowable under the law.

Another statement made concerned the DEEOIC nurse consultants contacting the personal physician about the home health care hours prescribed.  DEEOIC stated that the hours are provider driven and the nurse consultant just wants to make sure the physician understands the order he signed.  I personally have a problem with this statement because it seems to imply that personal physicians – who happen to go through years and years of training – will put their professional reputation on the line just to make their patient or the provider happy.  I don’t know why DEEOIC would think this is possible.

 

There were a few contentious discussions involving the legal issues.  There was no give and take when it came to discussing which issues should be sent out for public comment (as opposed to DEEOIC just issuing Final Circulars and Bulletins) and how does DEEOIC define proprietary interest.

The problem with issuing Circulars and Bulletins is that the public does not have any input.  Some of these documents deal with medical issues; for instance how is hearing loss or bladder cancer claims adjudicated?  These are medical issues and DEEOIC should provide the opportunity for experts outside of DOL to weigh in.  That doesn’t happen. 

The advocates asked for a clear definition of what constitutes DOE’s proprietary interest in a facility.  Here’s the law, with emphasis added:

(12)  The term “Department of Energy facility” means any building, structure, or premise, including the grounds upon which such building, structure, or premise is located—

 

(A)  in which operations are, or have been, conducted by, or on behalf of, the Department of Energy (except for buildings, structures, premises, grounds, or operations covered by Executive Order No. 12344, dated February 1, 1982 (42 U.S.C. 7158 note), pertaining to the Naval Nuclear Propulsion Program); and

(B)  with regard to which the Department of Energy has or had—

(i)  a proprietary interest; or

(ii)  entered into a contract with an entity to provide management and operation, management and integration, environmental remediation services, construction, or maintenance services.

 

It’s a simple question, but the Solicitor said it can’t be done; that determining what is a DOE facility needs to be decided on a case by case basis.  How is that possible?  How can DEEOIC decide if a site is a covered DOE facility if they can’t define what proprietary interest means? 

I guess the big issue we wanted to know from NIOSH was the status of their response to Dr. Barker’s critique on the dose reconstruction process http://bit.ly/1bWvujM.  Stu Hinnefeld stated that one of the reasons it can’t be released is that it deals with a specific claim.  It wasn’t until I read Sanford Cohen and Associates review of two Rocky Flats dose reconstructions that I realized the reason is not a very good one.  SC&A’s paper has all personal identifiers redacted from their report.  I think the same thing can be done with NIOSH’s response to Dr. Barker’s document.

The other reason given was that NIOSH has not officially received the document from DEEOIC.  I learned during the meeting that if a claimant or authorized representative finds a factual error in the dose reconstruction, DEEOIC does not necessarily send that back to NIOSH – or to DEEOIC’s health physicist - for another review.  I sincerely hope that this is immediately rectified.  Due process issues are involved.

Our issues with DOE were minimal.  The biggest concern was record retention and retrieval.  A dear friend of mine has had major difficulties in obtaining her husband’s employment records from a LANL subcontractor.  We’re not talking 40 years ago, we’re talking about her husband working there in 2007.  We asked DOE if any fines were levied against contractors or subcontractors for not keeping the records.  They have not.  However, DOE relayed that there is now a clause in the contract language that does require the retention of employment records.  I am very thankful for that.

The other issue is the testing done by the Former Worker Medical Screening Program.  This program is a wonderful thing but it can do so much more.  Personally, I would like to see this program become a Mayo Clinic-type program; one where the worker is tested and diagnosed for a variety of diseases; one where a treatment plan is developed.   And just as important, one where the Former Worker physicians can link the exposures the workers experienced at the sites to the diseases they suffer from. 

So that’s it for now.  Stay tuned for thoughts on the 250 day requirement for SEC classes and DIAB news.

 

Comments (1)

ANWAG forms Citizen's DEEOIC Interim Advisory Board

The Alliance of Nuclear Worker Advocacy Groups (ANWAG) announced Thursday Februay 20th to the federal agencies responsible for implementing the Energy Employees Occupational Illness Compensation Program  Act of 2000, as amended (EEOICPA) - the Department of Labor (DOL), the Department of Energy (DOE), and the National Institute of Occupational Safety and Health (NIOSH)- the creation of an all-volunteer citizens advisory board. The interim advisory board will oversee DOLs Division of Energy Employees Illness Compensation (DEEOIC) implementation of the compensation program.  Three entities, besides ANWAG, have recommended that DEEOIC be provided with an advisory board the Government Accountability Office in 2010, the National Academy of Sciences Institute of Medicine, in 2012 and Econometrica in 2005.  The latter two organizations were contracted by DEEOIC to provide recommendations on the program, at a cost of almost two million dollars for these reports. Many of these recommendations still await implementation.

 

Legislation was introduced in both the 112th and the 113th Congresses to create such an advisory board (S1423 and HR 2905). This board would guarantee transparency in policy decisions as well as ensuring that claims are decided in a consistent manner using the best science available.  Unfortunately, despite the best efforts of the Congressional sponsors, this legislation has stalled.

 

Until Congress passes the legislation the DEEOIC Interim Advisory Board (DIAB) will provide oversight of the program and advise

DEEOIC on the various issues related to the claims adjudication process.

 

DIAB will be beneficial to both DEEOIC and the claimant population, stated Terrie Barrie ANWAG Founding Member and Secretary of DIAB.  The board includes members of academia, the legal profession, former workers and claimant advocates. All have a substantial amount of experience with this program.

 

The advocates and claimant representatives hear a variety of concerns from the claimants.  They range from job categories missing from the Site Exposure Matrix to the reduction of home health care hours, said Faye Vlieger CWP Advisory Committee Member and Chair of DIAB.  This Board will be able to identify the issues and offer recommendations to DEEOIC to correct the problems.

 

DIAB has adopted the Comments (0)

DOES the DEEOIC have the right to question personal physicians' prescriptions?

One of the nicest things about being an advocate for the sick nuclear weapons workers is that I meet so many like-minded people – people who really care about the sick workers and their families.  Last month, I met a clinical manager of a home health care company.  Her father was involved in the nuclear weapons industry. 

This week she shared a response from the DEEOIC concerning a FOIA request she submitted on September 3, 2013.  She had requested an “updated procedure manual that reflects the incorporation of the DEEOIC nurse consultant into the in-home health care medical process.”

The DEEOIC responded,

“Currently, the DEEOIC has not established formal policies in the DEEOIC Procedure Manual relating to work activities for our nurse consultants.  Should DEEOIC issue any policies related to in-home health care for nurse consultants, this information will be announced via the DEEOIC website in the form of a bulletin.” 

Apparently, these DEEOIC nurse consultants have been in place prior to September 3, 2013.  Yet the DEEOIC doesn’t have any formal policies for them?  They have formal policies for Resource Center personnel, for claims examiners, for hearing officers but none for in-home health care nurse consultants??? 

What is an in-home health care nurse consultant anyway?  From other documents supplied to me it appears that the role of the nurse consultant is to contact the personal physician who first ordered home health care for an approved claimant to see if the hours prescribed by the personal physician – who knows the patient better than DEEOIC – should be lowered.  Here are two examples of letters sent to the personal physicians who prescribed in-home health care:

“Per our conversation on August 12, 2013 at 1437, the DEEOIC will amend (emphasis is mine) Mr. (redacted) in-home health care to the following:

·         HHA/CNA non-skilled nursing services – 4 hours per day

·         Targeted Case Management – 1 hour per week

·         RN/LPN – 3 hours per week.

Please sign this order and fax the signed copy to me at (redacted)”

And this one,

“The DEEOIC is requesting to amend (emphasis is mine) Mr. (redacted) home health care to the following:

·         HHA/CNA non-skilled nursing services – 4 hours per day

·         Targeted Case Management – 1 hour per week

·         RN/LPN – 3 hours per week

Please sign this order and fax the signed copy to me at (redacted)”

(I must apologize for not providing any links to view the documents.  Deb Jerison went on a well-deserved vacation and she took the magic keys to the website with her - not that I would know what to do with those keys.  But if anyone wants to view the actual documents just send me an email, tbarrieanwag@gmail.com.)

I have to ask – is it ethical, let alone legal, for the DEEOIC to contact the personal physicians and ask that the doctors’ order for home health care be changed?  Did the DEEOIC’s nurse consultant include the patients in these conversations?  Was it mutually agreed upon by all parties – the claimant, the doctor, provider and the DEEOIC?  Or were the claimants, who obviously suffer from a debilitating or even fatal disease, left out of this discussion of their medical care?

Why is the DEEOIC calling these physicians?  Do they think they are scamming the program?  Why would they do that and jeopardize their reputation and license?  Does the DEEOIC think the in-home health care agencies are fraudulent?  There are audits that can be performed to filter out the bad seeds of the industry.  As a matter of fact in the 12 years this program has been around, I recall only one in-home health care agency that was investigated and convicted of defrauding the Government.  Shame on that agency.  But because one of hundreds of agencies across the country was fraudulent does not imply that all are.  Many of them have the claimant’s best interest at heart.

So, why is the DEEOIC calling or writing these doctors?  Is it to control the costs of the benefits?  Does the DEEOIC still think the claimants will lie to get the compensation and therefore their medical providers will do the same – at the risk of losing their practice? 

And if the DEEOIC is making these calls to personal physicians concerning their recommendation for in-home health care, is the DEEOIC making similar calls to personal physicians concerning causation letters?  I’d be interested in hearing from claimants or their physicians if anyone from the DEEOIC has contacted them to question the letter of support.  Is the DEEOIC doing the same thing with durable medical equipment prescribed by a personal physician?

This compensation program is a legal process.  Don’t let that “informal oral hearing” stuff fool you.  The DEEOIC is bound, as far as I’m concerned, by the legal rights afforded to everyone under the Constitution.

If anyone has information concerning ex-parte conversations without the claimant’s involvement and does not wish to post a public comment, please feel free to email me directly at the above email address.  I will keep all correspondence confidential.

 

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Was DOL honest with their FOIA response?

I filed an appeal with DOL’s FOIA office yesterday.  That’s not surprising.  Unfortunately, I need to appeal a denial of my FOIA requests with DOL much too often.  DEEOIC does not release documents requested willingly.  But their latest reply to my FOIA request bothers me a lot.

 

In September, I requested

 

1.       All documents submitted by Paragon Technical Services (Paragon) to the Department of Labor (DOL) DEEOIC related to the time frames toxic substances were present at each Department of Energy (DOE) covered facility or uranium site under contract number DOL J069E22874 and

 

2.       All fully rationalized reports submitted by Paragon to DEEOIC related to detailing the relationship between toxic substance at DOE facilities/uranium sites and the diseases related to those exposures under contract number DOLJ069E22874.

 

DEEOIC response to item #1 was

 

"Paragon does not send documents or reports to DEEOIC regarding time frames that toxic substances are or were present..."

 

Really??  It just so happens that I filed a FOIA request for all emails between DEEOIC and Paragon related to the changes to the “guard” job category at the Iowa Army Ammunitions Plant in the Site Exposure Matrix.

 

I received those emails and it appears that DEEOIC does have at least one document – a spreadsheet - that would be responsive to my FOIA request.  That email between DEEOIC and Paragon states:

 

"In reviewing this spreadsheet... what reminded me was the note in the notes column that indicated Building one-05-1 was decontaminated and equipment removed in 1954..."

 

So, why didn’t DEEOIC send me at least that spreadsheet?

 

I also filed a FOIA request for the actual contract between DEEOIC and Paragon and received it.  The contract language calls for certain reports to be delivered to DEEOIC by Paragon.

 

As noted above my FOIA request also asked for the fully rationalized reports submitted by Paragon detailing the relationship between toxic substances and the diseases that could have resulted from the exposures. DEEOIC contends that Paragon does not submit reports linking toxic substances and diseases:

 

“With regard to the second part of your request, Paragon does not submit reports to DEEOIC regarding the relationship between toxic substances and diseases.”

 

Yet the contract requires that,

 

"The Contractor shall further identify the timeframes during which particular toxic substances were present and the diseases related to those toxic substances based upon fully rationalized medical science."

 

If Paragon does not submit reports on diseases caused by toxic substances how does DEEOIC know that the diseases located in SEM are based on “fully rationalized medical science”?  Does DEEOIC provide any kind of oversight to Paragon’s SEM contract or just take them at their word?  But I guess they can’t provide oversight since Paragon doesn’t give DEEOIC required reports. Oh, but there’s that email about DEEOIC having spreadsheets.

Is it possible that DEEOIC wasn’t completely honest with me when they responded to my FOIA request? 

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EEOICPA News Roundup and Another Reason DEEOIC Needs an Advisory Board

It’s great to be back writing the ANWAG blog.  It’s been a long time since I’ve posted.  Not because nothing is going on, but because there’s been a lot going on.  Some involved traveling and that delayed my posts. 

Last month, I traveled to Denver for the Advisory Board on Radiation and Worker Health’s meeting.  The Board voted to approve NIOSH’s recommendation to expand the Rocky Flats SEC to include all workers who were employed for 250 aggregate days between April 1, 1952 and December 31, 1983 and had one of the twenty two specified cancers.  I am thrilled with this decision.  It’s been a very long and hard road for the Rocky Flats workers to achieve justice.  And fortunately, NIOSH and the Board have left the latter years on the table.  NIOSH will continue to investigate if their previous dose reconstruction models are still valid for these Rocky Flats workers. 

As mentioned on EECAP’s home page, supporters of the sick nuclear weapons workers were invited to participate in a round table discussion at the American Public Health Association’s (APHA) annual meeting.  Topics discussed were the acceptance of chronic lymphocytic leukemia as a radiogenic cancer; issues with impairment ratings by non-CMC physicians; claim statistics pre-2008; and why DEEOIC needs an independent advisory board.  As you can imagine, this last issue had the longest discussion.   

My contribution was to inform the group of the advocates’ position on the Institute of Medicine’s (IOM) review of the Site Exposure Matrix (SEM) and DEEOIC’s response to IOM’s report.  During that discussion, I briefly referred to DEEOIC’s new Final Circular, 13-12 http://1.usa.gov/1ewKTHs, concerning the review of denied ovarian cancer claims.  Since my return, I have been able to do a little more research on this bulletin.

In attachment 2 of the circular, DEEOIC lists the job categories which would have received a significant exposure to asbestos.    

·         Automotive mechanic; Vehicle mechanic; Vehicle maintenance mechanic

·         Boilermaker

·         Carpenter; Drywaller; Plasterer

·         Demolition technician; Laborer

·         Electrical mechanic; Electrician; Floor covering worker

·         Furnace & saw operator; Furnace builder; Furnace operator; Furnace puller; Furnace technician; Furnace tender; Furnace unloader

·         Glazier; Glass installer; Glazer

·         Grinder operator; Mason (concrete grinding); Tool grinder; Maintenance mechanic (general grinding); Welder (general grinding); Machinist (machine grinding)

·         Insulation worker; Insulation trade worker; Insulator

·         Ironworker; Ironworker-rigger

·         Maintenance mechanic; Electrician; Insulator;

·         Mason; Brick & tile mason; Concrete and terrazzo worker; Bricklayer, Tilesetter

·         Millwright

·         Heavy equipment operator; Operating Engineer

·         Painter

·         Pipefitter, Plumber steamfitter; Plumber/pipefitter; Plumbing& pipefitting mechanic; Plumbing technician, Steamfitter

·         Roofer

·         Sheet metal mechanic; Sheet metal fabricator/installer

·         Welder; Welder burner; Welder mechanic

 

I compared that to the Rocky Flats SEM. There are quite a few more job categories listed in the SEM who would have been exposed to asbestos than are listed in the circular. For some strange reason, I can't list the SEM job categories but you can check it out here http://www.sem.dol.gov/

 

I have no problem with the job categories DEEOIC decided had significant exposure.  But who decided that?  Is there a procedure DEEOIC and Paragon Technical Services follows to determine who had the possibility to experience a significant exposure?  Do they realize how pervasive asbestos was/is in these sites?  If you look at the Rocky Flats SEM for the building, it appears that asbestos was in every building.

So, wouldn’t all workers who worked for 250 days and have a 20 year latency period have the potential for significant exposure to asbestos?  I would think so. And yes, DEEOIC’s circular allows other job categories to be considered. For example, in 1982 an administrative assistant for the Radiation Control Department in Rocky Flats’ Building 771, a plutonium building, reports a small water leak in the corner of the ceiling in her office.  Maintenance comes out, pokes a hole in the ceiling and finds the source of the leak.  The plumber is dispatched and he/she needs to enlarge the hole to repair the pipe.  The leak, and the work needed to repair it, is located in the far corner of the office above the file cabinets.  The repair does not interfere with the administrative assistant’s responsibilities, so she continues to work at her desk, not far from the repair work.  She wears no protective equipment while this work is done. Is it possible that she inhaled or ingested the minute asbestos fibers while at her desk? And then the week after that she would walk through a construction area where light fixtures were being replaced.  And a month after that a new computer system was installed, which meant the old wiring needed to be replaced.  This scenario could have occurred throughout her ten years of employment.  Was she not significantly exposed to asbestos?

Did I mention the claimant needs to prove 250 days of exposure?  How is a claimant, especially a survivor, able to provide evidence of this exposure?  In the example of the administrative assistant, is she supposed to remember each and every time she was present when a ceiling or wall was breached for a repair or an upgrade of the piping or electrical lines?  If the claims examiner refers the claim to DEEOIC’s Industrial Hygienist (IH), will the IH know if the above scenario took place or not?  Or will it be just an assumption that administrative assistants were not exposed to asbestos?

And why does DEEOIC still ignore the law???  Exposure to asbestos does not need to cause ovarian cancer. To be approved under this program, the criterium is to be able to prove that the exposure contributed to, aggravated, or caused the disease.

And why isn’t ovarian cancer listed as a disease in SEM as a result of asbestos exposure?

 

Site: Rocky Flats Plant
Toxic Substance: Asbestos

IDENTIFICATION

CAS: 1332-21-4  Aliases: Amosite; 16F; Anthophyllite; Anthophyllite UICC; Anthophyllite asbestos; Chrysotile; Crocidolite; Tremolite; Tremolite asbestos; Tremolitena; Serpentine; Filterbestos   Category: Dusts and Fibers 

PROPERTIES

Physical: Odorless, fibrous solids having a range of colors: white, gray, green and brown. Chemical: A group of impure magnesium silicate minerals resistant to acids & bases.  

SPECIFIC HEALTH EFFECTS
(based on NLM Haz-Map Disease List)

The following diseases were associated with exposure to this substance in the NLM Haz-Map website as of January 11, 2013

  

Asbestosis  Aliases: Asbestos pneumoconiosis

  

Asbestos-related pleural disease  Aliases: Pleural plaques; Diffuse pleural thickening; Pleural effusions; Rounded atelectasis

  

Laryngeal cancer  Aliases: Cancer of larynx; Larynx neoplasms; Larynx cancer; Laryngeal neoplasms

  

Lung cancer  Aliases: Bronchogenic carcinoma

  

Mesothelioma, peritoneal 

  

Mesothelioma, pleural 

  

Pulmonary disease, chronic obstructive  Aliases: Bronchitis, chronic; Chronic bronchitis; Chronic Obstructive Pulmonary Disease (COPD); Chronic Obstructive Pulmonary Disease; COPD; Emphysema

 

Just one more example of why DEEOIC needs an independent advisory board.

 

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