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Summary: Advisory Board to DOL discusses new responsibilities, new review of claims and new changes to DEEOIC policies

February 3, 2020

February 3, 2020

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Industry News

The Advisory Board on Toxic Substances and Worker Health’s teleconference meeting on January 28, 2020 had a packed agenda of issues to be discussed.

One of the more important items was the new responsibilities they now have after the Energy Employees Occupational Illness Compensation Act was amended in December 2019.

Shortly after the legislation was enacted the Department of Labor (DOL) sent a letter outlining the protocol for the Board to follow.  DOL advised the Board that they will have ten days to review any policy changes before DOL publishes them on their website.   All Board members agreed that it will be impossible to review changes within this time frame.  The minimum would be three months since the board only meets four times a year and they would need to have a formal vote on any recommendation.

One Board member suggested that the Board should be consulted in the early stages of any policy change so that they will have sufficient opportunity to weigh in on the changes. Another member noted that the language of the statute is very broad and wondered what Congress intended.

Members noted that they would need a support contractor to fulfill their duty. It is important to note that the members volunteer their time to serve on the Board.  Dr. Markowitz, the Board’s Chair, mentioned that DOL stated, in their December 18, 2019 response to the Board’s recommendations, that they will consult with him “to explore options for providing contractor support.” Dr. Markowitz stated that he is willing to enter into this discussion as soon as possible.

Rachel Leiton, Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC), acknowledged that DOL provided the Board with an advanced copy of Final Bulletin 20-02 on January 27, 2020, the day before the teleconference.   The Board reiterated that it will be impossible for them to review and make recommendations, if any, prior to the February 10, 2020 publication.

Ms. Leiton explained that this Final Bulletin addressed administrative changes concerning pre-authorization and the recent organization of the medical benefits department.  Dr. Markowitz expressed gratitude that the protocol letter allowed the board to provide their opinions on any changes to policy at any time.  Ms. Leiton also informed the Board that changes to the Procedure Manual are in the works and should be ready by spring 2020.

The Board reviewed the responses to their recommendations.  It was noted that DOL accepted many of the Board’s recommendations.  Others were not adopted, such as changes to the language in the Procedure Manual concerning the requirements for a treating physician to address when submitting a fully rationalized report for occupational asthma.  The Board asked DOL to reconsider their position.  On the issues where DOL did not adopt the recommendations, the Board respectfully agreed to disagree with DOL’s position.

The Board discussed two public comments submitted after their in-person meeting in November.  The first comment concerned a delay in the adjudication process.  While well intentioned, DOL will provide reports from the industrial hygienists to the treating physicians and ask for their opinions.  The person who submitted the comment noted that this places another burden on personal physicians that they are not qualified to render such an opinion if they are also not industrial hygienists. This is the source of the delay.  Ms. Leiton responded that DEEOIC has not noticed any delay in the adjudication process.

One of the issues raised in the second comment was the fact that Exhibit 18-1 in the Procedure Manual conflicts with the revisions DEEOIC made to the manual when they accepted the Board’s recommendations on asbestos related diseases.  A member recommended that DEEOIC review this exhibit and possible remove it entirely from the manual.

The Board discussed reports submitted by contract medical consultants (CMC) and industrial hygienists (IH).  DEEOIC’s Medical Director audits the reports.  It was noted that he found that between 25% and 28% of CMC reports (for reports other than causation) needed improvement.  The Board presented a copy of the requirements the contractor must fulfill and noted that “The maximum acceptable level is no more than 5% of all medical examinations result in the need for clarification, correction, completion, or re-performance,” for impairment rating reports.

There is a continuing concern with the IH reports.  Many seem to use the same references which do not always include the current literature.  The assumption that workers employed after 1995 never had a significant exposure to toxic substances is also a problem.  The Board agrees that the Department of Energy made vast improvements in protecting the workers.  However, those protections did not necessarily equate to no exposure.  The Board submitted a request for ten claims for workers employed after 1995 who were denied for review.

The Board will have an in-person meeting in the spring.  Based upon the number of claims submitted the next venue will be in Las Vegas.  The Board is looking at the last two weeks in April.  It was noted that the Advisory Board on Radiation and Worker Health will meet in Pasco, WA (Hanford) April 22-23, 2020 and there may be a conflict for some.