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.
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
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
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
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.email@example.com 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,