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DEPARTMENT OF LABOR DID MAKE IT HARDER FOR SICK NUCLEAR WEAPONS WORKERS TO COLLECT BENEFITS

 

Most of you are aware by now that the Department of Labor Division of Energy Employees Occupational Illness Compensation Program’s (DOL) Final Rules, published on April 9, 2019 are horrendous. Previously, I wrote about the changes to filing for home health care benefits before but in an abstract manner.  Things have changed now that my husband may need to navigate this process. Trust me, the new rules are overly burdensome on workers who are sick and need home health care (HHC). Their personal physicians, also, may be subjected to increased interactions with DOL which may cause them to no longer accept the white card.   

I just spent hours reading the Procedure Manual (PM) on how claims for new home health care are processed. Not only is the process burdensome it also wastes a lot of time. 

This is the way the process now stands,

1.       Claimant or authorized representative downloads Form EE-17A here or calls DOL to request this form (it is unclear whether a claimant or authorized representative calls the Resource Center or Claims Examiner).

2.   Form can either be uploaded to the Energy Document Portal or mailed to a Resource Center or District Office.

3.   After DOL receives the form from the claimant, they send Form EE-17B to the physician along with a letter of instructions. The Procedure Manual will not allow me to hyperlink the form or letter of instructions.  The links can be found on page 345 of the Procedure Manual.

The claimant form is simple to complete.  But you know what’s missing?  Advising DOL which HHC provider they want to use.  DOL has not created a form to provide this information!  Even checking the PM there’s no direction on how a claimant should advise which provider they want other than it must be in writing and that will happen only if the Medical Benefits Examiners needs to call the claimant to clarify something on the original form.  Can you imagine – DOL approves a sick worker’s claim for HHC benefits yet no one shows up to care for him or her because the worker was never asked to let DOL know which provider they want? 

My take on the process is that it doesn’t need to be followed by the claimant.  I see no reason why a claimant, who has access to the internet, can’t download not only their form, EE-17A, but also the physician’s form and instruction letter.  They can then provide the form and letter to their doctor and ask for a Letter of Medical Necessity (LMN).  Once all forms are completed and the LMN obtained, include a letter from the claimant designating which provider they want to use and upload everything to the Energy Document Portal.  The Medical Benefits Examiner will have everything needed to approve the claim and processed promptly.

This won’t help workers with no access to the internet.  Their claims, unfortunately, will be processed slowly through DOL simply because of how long it takes for a letter to reach a recipient through the U.S. Mail.  And it’s sad that they will need to be without the care they need and deserve for however long it takes to send documents through the mail. 

Home health care providers used to handle all of this until the Final Rules.  And, to me, it made and still makes sense for them to do so.  They have the expertise. 

I can’t help but feel that the only reason that DOL is making it more difficult for a worker to obtain health care in their own home is because it is costing a lot of money.  But do these workers, who were poisoned by their country while working to defend it, deserve any less?

DOL needs to rescind not only the new rules on home health care but all of them.  They need to go back to the drawing board and start from scratch.  And that new process must include working with the advocates and other stakeholders for those who sacrificed their lives and health protecting our country.


Final Circulars, Final Bulletins, and Final Rules. Small Government Agency Recommends Public Engagement with Policy Development

 

I don’t know how I missed this but there is an independent federal agency which advises other federal agencies about administering federal programs such as the Energy Employees Occupational Illness Compensation Program (EEOICP). It’s called the Administrative Conference of the United States.


ACUS is an independent federal agency charged with convening expert representatives from the public and private sectors to recommend improvements to administrative process and procedure. ACUS initiatives promote efficiency, participation, and fairness in the promulgation of federal regulations and in the administration of federal programs.

The members of this agency includes a representative from the Department of Labor (DOL).

Why is this obscure agency important to the EEOICP claimants? Because if DOL’s Division of Energy Employees Occupational Illness Compensation (DEEOIC) had heeded the guidance offered by the Administrative Conference, many of the issues which have claimants and their advocates up in arms could have been avoided.


In December of 2017, the Administrative Conference of the United States offered a number of recommendations concerning policy statements federal agencies use when administering a program. DEEOIC publishes their policy statements as Final Circulars and Final Bulletins to inform claims examiners and the public of changes to policy.

These recommendations, in my opinion, sought to create a fair and balanced opportunity for the public to weigh in on policy statements before and after the issuance. A few of the recommendations offered by the Administrative Conference caught my eye,

    • Policy Statements Should Not Bind the Public.
    • Recommended that “A policy statement should prominently state that it is not binding on the public…” and provide the identity and contact information of agency officials for the public to contact to offer alternative solutions.
    • Facilitate “opportunities for members of the public, including through intermediaries such as ombudspersons or associations, to propose or support approaches different from those in a policy statement and to provide feedback to the agency on whether its officials are giving reasonable consideration to such proposals.” (Emphasis added)

Imagine if DEEOIC adopted the recommendation to work with claimants and their advocates before changing some policies. It would be such a wonderful world. For example, if DEEOIC consulted with claimants, advocates, and medical providers before they issued their latest Final Circular, 19-03, DEEOIC may have had a better understanding on the responsibilities of a Nurse Case Manager and would not have limited this important service to a mere 15 minutes per week. To learn more about this issue read the blog Radioactive Daughter.

But DEEOIC did not consult with the stakeholders and, thus, created unnecessary stress on the sick workers they are required to serve.

While DEEOIC and the other federal agencies participated in meetings with EEOICPA advocates in the past, it was rarely that DEEOIC reversed course on a policy or adopted a suggestion from the advocates. I can only remember two times this happened.

The first was DEEOIC accepting the advocates’ suggestions that factual evidence in a dose reconstruction case can be argued in an informal hearing. The second was rescinding Final Circular 15-06 which basically said that workers weren’t exposed to toxic substances after 1995. Despite various organizations coming forward and objecting to this policy, it wasn’t until the Advisory Board on Toxic Substances and Worker Health weighed in did DEEOIC rescind the Final Circular. Unfortunately, that “win” was short lived since the policy language can still be found in reports submitted by DEEOIC’s industrial hygienists.

And while ANWAG’s efforts to have the Final Rules and Final Circular 19-03 rescinded have fallen on deaf ears so far, we will continue to raise any concerns we have with DOL, Congress and the press.

 

Sick Workers Just Can’t Catch a Break with the Department of Labor

Just when I thought it couldn’t get any worse, the Department of Labor (DOL) has once again attacked the health and well-being of the sick workers covered under the Energy Employees Occupational Illness Compensation Act. Recently, DOL came out with a new policy which will restrict the ability of medical professionals to care for the approved workers.

This new policy limits the time that an in-home health care nurse case manager can bill DOL for monitoring the worker’s medical issues to 15 minutes per week. I used to be a host home provider for a developmentally disabled individual. Just documenting his daily medications and other medical information took longer than 15 minutes a week.

The policy change was sprung on the in-home health care providers during a medical provider teleconference held on April 25 and 26, 2019. Up to this point DOL allowed more than 15 minutes per week.
The providers were not offered an opportunity to raise any concerns to DOL during the teleconference. One in-home health care company submitted an email to DEEOIC asking for clarification on this new policy. The company received an automated reply that DEEOIC will develop a Frequently Asked document at a later date which will address all questions.

The change took effect on April 25, 2019 the same day as the first teleconference but before DOL informed the companies. No warning whatsoever to the companies who provide this service. The companies likely had case managers in the homes of the sick workers fulling their duties as previously authorized by DOL. Does DOL expect those companies to absorb the difference of the time DOL previously authorized and the new policy limiting the time to 15 minutes?

This is a major change in policy and, in my opinion, should have gone out for public comment before the change was implemented.

DOL has gone too far in restricting coverage for sick workers. I urge you to read Cold War Patriots’ Letter to Supporters to see how you can help.

Professional Case Management Steps Up to the Plate to Protect Sick Workers’ Benefits. Files Lawsuit to Prevent DOL Final Rules from Taking Effect                                                        How You Can Help

 

Remember those horrid changes to the regulations that govern the Energy Employees Occupational Illness Compensation Program (EEOICP) the Department of Labor (DOL) proposed in 2015?  DOL received hundreds of comments from organizations like ANWAG, unions, the Advisory Board on Toxic Substances and Worker Health (board), and individuals objecting to the changes.  DOL rejected virtually every comment and suggestion, including those from the board.  The Final Rules are set to take effect on April 9, 2019.

Did I mention that the rules are horrible? 

There is no doubt in my mind that they are.  They prevent some workers from coverage; a worker needs to get permission from DOL to change doctors; the rules make it harder to qualify for wage-loss for an occupational illness.  And, if you think it takes a long time now to get approved for medical services, the new rules will only make it harder and longer. 

These are just a few examples of the wrongness of the changes to the regulations.

Professional Case Management (PCM) filed a lawsuit hoping to prevent DOL from implementing the changes.  The suit asks that DOL work with the stakeholders in good faith to develop regulations which will reflect the congressional intent to properly care for these workers. 

PCM is the largest home health care company and the first to provide services to the sick workers.  That sounds like a commercial doesn’t it?  I’ve worked with and eventually for PCM, through Cold War Patriots, for over ten years.  Over the years, my respect for PCM’s commitment to the workers has increased but never so much as today.

It couldn’t have been easy for PCM to make the decision to file legal challenges to the changes in the regulations.  Filing a lawsuit against the U.S. government is a daunting prospect and one taken when there is no other option. I, for one, am very thankful they have the courage to take this drastic step. 

Before this lawsuit was filed ANWAG and PCM sent separate letters to DOL Secretary Acosta asking that he repeal the final rules. Senator Tom Udall (D-NM) also asked Secretary Acosta to seriously consider ANWAG’s request.

Secretary Acosta has the authority to do so.  The Environmental Protection Agency withdrew one of their final rules in December 2018, https://bit.ly/2HFqYdR.  We are encouraged that DOL “…is evaluating your request to determine the appropriate course of action.” (March 4, 2019 letter from Julia Hearthway, Director of Office of Workers’ Compensation Programs to ANWAG available upon request.)

While this is promising, DOL’s past track record does not demonstrate a willingness to enter into a positive and productive relationship with the stakeholders.  Their treatment of the board, which was created to advise the Secretary on certain issues related to the program, is a prime example.  The board members are highly qualified and knowledgeable about EEOICP.  If DOL digs in its heels resisting some of the board’s recommendations, https://bit.ly/2JkZQmE, how likely is it they will repeal the changes to the rules just because ANWAG asked?

This is where you come in. We need your help and it will only take a few minutes of your time. 

Email Secretary Acosta at Acosta.alexander@dol.gov or call him toll-free at 866-301-0070 and ask him to fulfill his duties to the claimants and withdraw the Final Rules which govern the Energy Employees Occupational Illness Compensation Program.   

For decades, the U.S. government fought workers who filed in state workers’ compensation programs so much that it was virtually impossible to receive medical and monetary compensation for illnesses which arose from exposure to radiation and other toxic substances at the Department of Energy’s nuclear weapons facilities.  In 2000, Congress recognized the unjust treatment of these workers and created EEOICP.  Now DOL wants to make it just as hard to receive compensation as it was before EEOICP. 

These changes will affect both current and future claimants.  Please help us out by calling Secretary Acosta.  Let’s return this program to what Congress wanted for the sick workers.  With your help, I know we can get this done.

To stay updated on the progress of the lawsuit please visit, http://www.coldwarpatriots.org/dolchange.

 

 

 

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