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31–312 PDF








DECEMBER 5, 2006

Serial No. 109–159

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Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
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Subcommittee on Immigration, Border Security, and Claims

JOHN N. HOSTETTLER, Indiana, Chairman

BOB INGLIS, South Carolina
DARRELL ISSA, California

HOWARD L. BERMAN, California
ZOE LOFGREN, California
LINDA T. SÁNCHEZ, California
MARTIN T. MEEHAN, Massachusetts

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CINDY BLACKSTON, Professional Staff
NOLAN RAPPAPORT, Minority Counsel


DECEMBER 5, 2006

    The Honorable John N. Hostettler, a Representative in Congress from the State of Indiana, and Chairman, Subcommittee on Immigration, Border Security, and Claims

    The Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims


Mr. Shelby Hallmark, Director for the Office of Workers' Compensation Programs, U.S. Department of Labor
Oral Testimony
Prepared Statement

Mr. John Howard, M.D., Director, National Institute for Occupational Safety and Health
Oral Testimony
Prepared Statement

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Mr. Daniel Bertoni, Director, Education, Workforce, and Income Security Issues, U.S. Government Accountability Office
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John N. Hostettler, a Representative in Congress from the State of Indiana, and Chairman, Subcommittee on Immigration, Border Security, and Claims

    Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims

    Significant documents and communications related to the Subcommittee's oversight of the Energy Employees Occupational Illness Compensation Program Act



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House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 4:15 p.m., in Room 2141, Rayburn House Office Building, the Honorable John Hostettler (Chairman of the Subcommittee) presiding.

    Mr. HOSTETTLER. The Subcommittee will come to order.

    This is the fifth and final hearing in a series of hearings before the Subcommittee in this Congress on the implementation of the Energy Employees Occupational Illness Compensation Program Act. The overarching purpose of these hearings has been to make sure the Government is fulfilling the promises made to these workers who sacrificed so much for their country during the Cold War. This program was created to help them, not as some science experiment to provide unlimited employment for Government contractors and certainly not to set these workers up to be deceived and minimized by the Government yet again.

    Because DOE and its contractors often did not properly monitor workers' exposures to radiation and other toxins and, often, records of worker exposures no longer exist, EEOICPA provided that HHS could designate such workers as members of the, ''Special Exposure Cohort,'' or SEC. Under a designated SEC, benefits are paid to workers who received on-the-job radiation exposure for a period of time and who have been diagnosed with one of 22 radiosensitive cancers.
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    When this law was enacted in 2000, Congress did not know how many new groups of workers might be designated as belonging in a Special Exposure Cohort, but from hearings in this Committee we knew that there was limited radiation monitoring data and nonexistent health physics programs in the earliest years, and this would make it almost impossible to accurately reconstruct dose for many claimants.

    Without the ability to add workers to the Special Exposure Cohort, many would face an insurmountable burden of proof when it was the Government who placed them in harm's way, frequently misled them about the hazards they were facing, and failed to properly monitor their exposures.

    It seems prudent to revisit some of the historical evidence of the Government's knowledge of what these workers were being subjected to and the intentional decision to keep that knowledge a secret.

    At Mallinckrodt, a 1951 Atomic Energy Commission memo assessed that their potential liability as a result of workers receiving radiation exposure for several years had been considerably more than any group for which data are available. The memo concedes, ''the possibility of tumor development among Mallinckrodt employees must be recognized,'' but the workers were never told.

    There are several examples from a formerly secret memo by the Atomic Energy Commission entitled Health Hazards in New York Operations Facilities Producing and Processing Uranium, April 1, 1949, that shed light on the amount of exposure workers received.
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    At Harshaw Chemical in Cleveland, Ohio, the AEC memo showed 33 of 88 employees were exposed to uranium dust concentrations of 140 to 370 times the so-called preferred level, and many employees had 2 to 4 years of exposure at these levels.

    At Electromet in Niagara Falls, New York, the AEC found that most of the process workers were exposed to uranium dust at five times the so-called preferred level, and the bomb loaders were exposed to 600 times the preferred level in 1948.

    At the Simonds Saw and Steel Plant in Lockport, New York, AEC wrote that, ''In order to satisfy Hanford's urgent need for rolled metal, which is uranium, it was necessary to begin operations before suitable controls could be installed.'' As a result, employees were exposed to a daily average of 155 times the preferred levels of uranium.

    An AEC memo acknowledged that with the exception of one facility, ''No effort has been made to explain the nature of the special problems which exist.'' AEC wrote that employees were, ''transferred from department to department and no record made of the fact.''

    ''It will therefore be impossible without relying on the memory of the individual employees and their foreman to reconstruct the dust exposure records of many present employees.''

    The AEC noted that due to the health hazards to workers, ''The decision must therefore be made to provide satisfactory operating conditions despite existing operations pressures. If this is not done, it will be necessary to classify at least some of the operations within these plants as being extra-hazardous in nature. This, of course, means concomitant complications such as difficulties in securing individuals for the job if full recognition is given to the extra-hazardous nature and insurance difficulties.''
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    These are just a few examples of the history that guided the decision to provide relief for the workers through the Special Exposure Cohort petition process.

    While progress has been made regarding claims processed at DOD, several-thousand dose reconstructions are not completed at NIOSH more than 6 years after enactment. Advisory board members have been removed and added with no rhyme or reason, leaving the board imbalanced.

    The Administration has not acted on repeated requests by this Committee, as well as many Members of Congress to rectify this imbalance. Although OMB has indicated that the OMB passback does not reflect Administration policy, DOL's involvement in selectively culling compensable claims to second-guess NIOSH, constant internal criticism of the Advisory Board and the audit contractor, brainstorming on ways to limit the scope of SECs, and significant involvement in SEC rulemakings raises questions, now being evaluated by the GAO, on whether DOL has exceeded its authority and is involved in issues the law reserves for NIOSH and the Advisory Board.

    A number of pressing concerns with Subtitle E of the program, the portion of the program that provides wage replacement and/or impairment benefits to workers for their illness from exposure to toxic substances at DOE facilities, have yet to be scrutinized by the Committee.

    DOL testimony at our March 1, 2006, hearing about the DOL's role in the development of the OMB passback included a statement that ''Cost containment is not part of any strategy or involvement that the Department of Labor has had in this process.'' Yet oversight by this Subcommittee has found e-mails and memos discussing controlling approvals of SEC petitions by:
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    One, having OMB review each petition with DOL input prior to final approval, a role specifically tasked to HHS;

    Two, refreshing the members of the Advisory Board to correct what is framed as an excessively claimant-favorable board;

    Three, selecting certain claims for cancers deemed compensable by NIOSH and then dissecting the NIOSH radiation dose estimate looking to show NIOSH error and justify an argument to reduce compensable claims;

    Four, ways to reduce the number of workers included in SEC classes;

    Five, working on NIOSH rulemakings to reduce the list of 22 SEC-covered cancers and finding legalistic interpretations to reduce the number to as few as one type of cancer;

    Six, developing contingency plans to seek advice from the Justice Department that would relieve DOL of the obligation to pay benefits to certain Special Exposure Cohorts if DOL disagreed with the rationale for approving that SEC; and

    Seven, bringing in other entities to challenge NIOSH recommendations for SECs.

    We hope DOL will shed light on the discrepancy between previous testimony to this Committee in March and the document specifically viewed by the Committee that any rational person would perceive to be a benefits containment agenda through March of 2006.
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    Although DOL has produced about a dozen binders of materials to the Committee, we note that another eight binders could only be reviewed in the DOL's offices and copies could not be made. Although four trips have been made to DOL, this inconvenience has hampered the necessary Committee oversight over the program.

    Many documents reflect a DOL attitude that SECs are not soundly based and that HHS and the Advisory Board can't be counted on to fight off claims regarding shoddy radiation monitoring data.

    A February 2005 memo to the Secretary of Labor states, ''HHS has acquiesced to claimant, Advisory Board, and political pressure.'' An August 2005 memo accuses NIOSH of ''capitulation,'' and then states with respect to efforts to cut back the number of cancers under the HHS SEC rule, ''NIOSH is taking a tremendous amount of heat on this issue and indications are they are looking for ways to crumble.''

    A February 2005 statement shows disdain for the Advisory Board, complaining, ''Thoughtful deliberation by the board, not something toward which they've shown a tendency anyway, will be extremely limited under these conditions.''

    While publicly professing no interest in the outcome of SEC recommendations on Mallinckrodt facility to Senator Kit Bond and the Advisory Board, the internal DOL comments state, ''The final vote is now projected for the board's next meeting in early July. It may be that at least two current members of the board will be replaced by new appointees by then, which could significantly change the dynamic of the board.'' Such a change is critical since the board and its contractors seem bent on demanding that NIOSH's processes be far more perfect than is possible, failing which SECs would be demanded everywhere.
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    When briefing the top officials at DOL, staff suggested inflated cost estimates for new SEC designations. For example, they stated, ''The 10-year added cost for the Iowa SEC alone has been projected at $1 billion.'' The expenditures for the Iowa SEC have been about $49 million as of November 12, 2006. This is 5 percent of the DOL staff cost estimate. This cost is unlikely to grow much more because there has already been intensive claimant outreach, and new claim filings have dropped off significantly.

    With respect to Mallinckrodt, DOL staff wrote, ''The 10-year added cost for a Mallinckrodt SEC was about $500 million.'' However, the cost is $17.7 million or about 3.4 percent of the amount projected.

    Mr. Hallmark maintains this alarmist tone in memos to the Secretary where he states, ''The stability of the current Part B program is at risk.''

    DOL has dismissed the concerns about their actions as no longer relevant since DOL has ceased and desisted from implementing the passback in May 2006. If this is the case, the Committee will need to review additional documents. The culture of disdain toward claimants and NIOSH appears to be so embedded in DOL that it will be important to take a hard look at what has transpired since the OMB passback first saw the light of day in order to confirm DOL's declaration.

    We will need to look at the DOL's internal communications since our February 2006 request. As such, I will be working with the Ranking Member after the close of this hearing to send a letter to both DOL and NIOSH, seeking to update the request previously made to the two agencies and to reiterate the need to produce the documents which have been withheld.
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    We will hear from DOL, NIOSH and GAO today. We had invited the DOL ombudsman; however, we have been advised that this position is vacant and has been vacant since the beginning of October. We are disappointed that none of the staff from that office will be made available today because the reports to Congress and the recommendations they can offer are important in formulating reform legislation.

    We want these hearings and a detailed record left behind to create a road map for the 110th Congress to follow up on areas that need further inquiry and to enact reforms. To the bean counters, I would remind you that these aren't normal beans that you are counting. These funds are a small acknowledgment of the sacrifice of workers whose lives were put at risk to make this country safe enough for us to sit in our office counting beans. Show some respect and gratitude is my request.

    To the workers I say a heartfelt thank you; thank you for your service to our Nation. There are many of us who do appreciate your and your families' contribution to our world and want to do right by you. I would like to think that this Committee's hearings and oversight efforts have contributed to that goal, and I consider it a privilege to have led that effort in this Congress. I only wish more of the problems of the program could have been solved conclusively.

    Finally, I want you to know that I have confidence that there are many people in this Government and this country who will continue to fight for you to get the respect and care you deserve for all you have done for us.

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    At this time, I recognize the gentlelady from Texas, the Ranking Member, for purposes of an opening statement.

    Ms. JACKSON LEE. Let me thank the Chairman very much and let me acknowledge the leadership that the Chairman has given to this issue. He certainly has created an important road map for the 110th Congress, but more importantly he has created a superhighway of compassion and concern for those who have been left alongside the roadway that have given of themselves as great patriots representing their different regions across America.

    This legislation and this concern is not focused on one region or another; it is really a question of people and the contributions people are willing to give on behalf of their beloved country, America. The Chairman has eloquently acknowledged that our task is to help those individuals.

    And, Mr. Chairman, I would like to personally thank you and acknowledge—I believe, unless you call for a series of hearings over the next 48 hours, this may be, in fact, your last hearing as the Chairman of this Subcommittee. As the Ranking Member, I want to particularly place in the record my appreciation for the moments of our agreement, and certainly moments that we have disagreed but we have not been disagreeable. You have led this Committee with distinguished service, and I know that I speak for all of my colleagues who are represented by both sides of the aisle with a heartfelt thank you.

    In particular, let me acknowledge that we hope that we will have a bill on the floor that you have been carefully guiding, J1 visas, which may sound like a small minor point, but thousands of rural communities are waiting upon doctors that they do not have that may be provided assistance by the J1 visa. I thank you for working with me and for our working together on that.
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    As well, we have worked, certainly, on this legislation dealing with occupational illness compensation, and you have been detailed and thorough in the, I think, broken system of Government that has failed to respond to the needs of these individuals.

    Let me also say that though immigration has been a challenge, we have worked together on anti-alien smuggling legislation; our concern about securing the border is, I think, the same.

    So again might I add for the record a heartfelt appreciation for the service that you have given to the Judiciary Committee, to the Subcommittee on Immigration and other Committees that you have served, and certainly, most importantly, to the Nation. Thank you, Mr. Chairman.

    Let me indicate as I have always said at hearings like this that we hope that our work will generate solutions, and I hope the distinguished witnesses who are here today will find a way to either facilitate the solution or take messages back to their various agencies. And let us be different than what we are perceived, and that is bureaucrats, obstructionists sometimes, and uncaring of the needs of those whom we impact.

    I believe we can find a solution, as the Chairman has indicated, and it is long overdue. The last hearing, we had the daughter of one of the victims, since passed; and to hear stories of the lack of resources, compensation, and to understand how this could have happened to their loved one really pulls at your heartstrings.

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    The good news is, this can be fixed, and we should fix it. This is the fifth in a series of hearings on Subtitle B of the Energy Employees Occupational Illness Compensation Act, and Subtitle B covers occupational illness associated with making nuclear weapons. Workers who have contracted one of those illnesses may be eligible for a lump sum payment of $150,000 and prospective medical benefits.

    Let me insert into the record, as well, just the occurrence in the past 2 weeks of the loss of the Russian spy. The determination, though not final, is the obvious ingestion of some sort of nuclear product. I only cite that example so that it relates to your concept of how devastating contact with nuclear material can be to a human being. Obviously, it is suggested that this was ingested and this individual was poisoned, but the time of his demise was quick and it was vicious.

    And so we might just associate what some of these victims, who have had exposure working for their nation on nuclear weapons, might have been impacted by—the minimal impact that you can imagine of this exposure, to be ill and not have the ability to be compensated.

    In processing radiation-related cancer claims the National Institute for Occupational Safety and Health is required to estimate a worker's exposure to radiation. If this is not feasible, but it is clear that the health of workers may have been endangered by radiation exposure, the workers can petition to be designated as members of a Special Exposure Cohort, which establishes an unrebuttable presumption that certain cancers are work-related.

    In an internal passback memorandum from the Office of Management and Budget to the Department of Labor, OMB states that the Administration will convene a White House-led interagency work group to develop options for administrative procedures to contain the growth in the costs of the compensation program. That was the first mistake and the first wrong direction, and it should be corrected and it should be pulled back. It was a passback memorandum; it should have a pullback memorandum. We should begin to formulate how we provide compensation to these victims.
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    The series of five hearings addresses concerns about the cost containment measures recommended in the passback memorandum because it cites particularly that we are concerned about costs over the lives and health conditions of the victims. That is wrong; we need a pullback memorandum.

    Government witnesses have testified that cost containment is not a factor in deciding which claims to pay, and they have said that the recommendations in the passback memorandum have not been implemented. The Administration may not be implementing the specific recommendations in the passback, but that does not mean that no efforts are being made to contain the cost of the program. And the Chairman has detailed the ups and downs this Committee has had in trying to secure information and trying to be responsive and being able to really move this solution forward.

    The hesitancy of the agencies, frankly, has inhibited us from getting legislation to the floor, which means that we are now going to have to work into the 110th Congress, which I hope will move quickly on this issue.

    At the previous hearing on November 15, 2006, Richard Miller, a senior policy analyst for the Government Accountability Project, testified that DOL is employing cost containment measures in spite of their representations. For instance, DOL has criticized the details in most of the proposed SEC designations in what he believes to be an effort to reduce benefits, and it has changed the regulations governing SEC petitions to make it more difficult to qualify.

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    Dr. John Mauro, the project manager for S. Cohen & Associates, testified at the same hearing that the Administration recently made it more difficult for SC&A to access data and records when it reviews a recommendation from NIOSH to deny an SEC application. This makes it more difficult to evaluate the records which are the basis for the denial recommendations.

    Cost containment is not the only problem that has come to our attention at these hearings. Another witness at the previous hearing, Kathy Bates, described the difficulties her family has had in trying to obtain compensation for the death of her father from cancer caused by work site radiation exposure. The initial claim was rejected on the basis of radiation exposure records that did not pertain to her father.

    Ms. Bates brought this to the attention of the office processing the claim and received assurances that the Social Security card number would be corrected. Nevertheless, when a new decision was rendered, it denied the claim again, using the same incorrect Social Security number to identify her father's records.

    This is not befitting of America. This is not only an embarrassment, but it really undermines families and certainly continues to disregard the service of these patriots as they worked throughout the years. Ms. Bates concluded that quality control measures are needed for the process of evaluating claims, and I agree.

    So this is not a question of cost containment; this really is a question of getting the job right, fixing the process, giving the right Social Security number, and responding to the needs of victims.
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    I have introduced a bill to address the cost containment issue, the Energy Employees Occupational Illness Compensation Program Improvement Act of 2006, H.R. 5840. Among other things, it would shift the authority from making Advisory Board appointments to the Congress, require the HHS Secretary to abide by the recommendations of the Advisory Board unless there is a clear error. It would establish enforceable conflict-of-interest requirements with respect to NIOSH's dose reconstruction contractors. It also would eliminate unfairness by making benefits available to some subcontractor employees who worked in atomic weapons employer facilities, but presently are not covered by the act.

    These workers made a commitment to our country, to their beloved America, when the country needed them most. Now, some very many years later, it is our turn to help them in their time of need, to help their families in their time of need and to make good on what patriotism is all about, a love of one's country; and the country, of course, upholding its duty and commitment to her people.

    I yield back.

    Mr. HOSTETTLER. I thank the gentlelady. And I thank you for your kind comments and thank you for your work over the last 4 years and look forward to your progress in the upcoming Congress.

    I'd now like to introduce members of our panel. Shelby Hallmark has served as the Director for the Office of Workers' Compensation Programs, or OWCP, for the Department of Labor since June 18, 2001. He had previously served as Acting Director and Deputy Director for OWCP. Mr. Hallmark has served in various positions at the Department of Labor since 1980, beginning his career in the Employment Standards Administration.
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    He holds a B.A. in history and philosophy from the University of Texas at Austin and received an M.A. from that university's Institute for Latin America Studies.

    John Howard is the Director of the National Institute for Occupational Safety and Health at the Department of Health and Human Services. Prior to his appointment as Director, Dr. Howard served as Chief of the Division of Occupational Safety and Health in the California Department of Industrial Relations from 1991 to 2002.

    Dr. Howard received his Doctor of Medicine from Loyola University of Chicago in 1974, his Master of Public Health from the Harvard School of Public Health in 1982, his Doctor of Law from the University of California at Los Angeles in 1986, and his Master of Law in Administrative Law from the George Washington University in Washington, DC, in 1987.

    Daniel Bertoni is Acting Director for worker protection issues in the United States Government Accountability Office's Education, Workforce and Income Security team, or EWIS. Mr. Bertoni began his career with GAO in 1989 as an analyst in the New York region and is currently assigned to GAO's Washington, DC, headquarters. Over the course of his career, Mr. Bertoni has led numerous management, operational and program integrity reviews at the Department of Labor, Social Security Administration and the Internal Revenue Service. Mr. Bertoni holds a Master's degree in political science from the Rockefeller School of Public Affairs and Policy in Albany, New York.

    Gentleman, if you would please stand and raise your right hand and take the oath.
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    [Witnesses sworn.]

    Mr. HOSTETTLER. Let the record reflect that each witness responded in the affirmative.

    Gentlemen, you will see—and you're all, I'm sure, well aware of—the lighting system that we have here. Without objection, your opening statements, written statements, will be made a part of the record; and we ask that you keep as close to the 5 minutes as possible in order for Members to ask questions.

    Mr. Hallmark, you will please begin. You're recognized for 5 minutes.


    Mr. HALLMARK. Thank you, Mr. Chairman. I'm pleased to appear today to discuss the Department of Labor's efforts to implements EEOICPA.

    The veterans of the Cold War have been waiting for a long time, and we're proud of our ability to get both Part B and the new Part E of this act up and running quickly. DOL staff are dedicated to adjudicating claims and providing benefits in a prompt, fair and consistent way and in accord with the law as enacted by Congress. We have set challenging performance goals and consistently exceeded them, and we're driving hard to finish resolving all the backlogged cases.
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    The results demonstrate that the promise of the statute is being kept. In 5 years we've issued $2.4 billion to 22,000 beneficiaries. Nearly 75 percent of all cases have received at least one final decision from DOL. Less than 6,000 cases remain in the NIOSH dose reconstruction queue, and that dose reconstruction process has resulted in nearly $550 million in benefits so far.

    Under Part E, we've issued an initial decision on 80 percent of the 2,500 cases DOL inherited from the Department of Energy, and nearly $520 million has already been awarded under that part.

    These statistics show that the EEOICPA program is working. We haven't yet reached steady state and benefit outlays are still growing as we work through the remaining backlogs. The program as a whole is moving forward, but those who haven't yet received a final decision or who have had difficulties with the program may still be disappointed.

    We've adopted numerous strategies to help claimants navigate this complex program. These range from extensive public outreach efforts to one-on-one assistance from our resource centers and our district offices.

    Our staff directly gather employment, exposure and medical evidence on virtually every claim, greatly easing the burden on claimants. For Part E, we're building extensive site exposure matrices which we match against medical data sets to link those exposures to specific medical conditions. These DOL-provided evidentiary tools won't prove eligibility in every case, but they help in a very large majority of them.
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    Mr. Chairman, previous testimony before this Subcommittee alleged DOL is anticlaimant and has carried out a covert cost containment effort. These charges are simply not true. They arose from options in a now disavowed internal OMB memo. OMB has testified before this Subcommittee that the Administration is not pursuing those options, and we are not pursuing them nor are we attempting to usurp NIOSH's role.

    As the lead agency in the administration of the EEOICPA, we're responsible for issuing fair, equitable decisions to claimants. This requires close coordination and scrutiny of the activities of other agencies, including NIOSH. Our goal in reviewing NIOSH inputs is to ensure that the final decisions based on them are accurate and consistent and can be sustained in court if challenged.

    We've returned nearly 2,000 dose reconstructions to NIOSH over the past 3 years for rework, but 88 percent of those cases otherwise would have been denied. We were nearly always giving the claimant a second chance, certainly not an anticlaimant status.

    Neither have we conducted a covert cost-cutting campaign regarding the Special Exposure Cohort. Starting in 2005, I publicly urged the Advisory Board to ensure that the rationale for each new SEC class it considers comports with the statute, is clearly explained, and is capable of consistent application.

    I also noted that SEC class declarations have negative impacts on some claimants whose cancers are not on the list that conveys presumptive eligibility. These concerns are and continue to be about equity, not about cost.
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    DOL also works with NIOSH to ensure that the definition of each class is clear and can be reasonably interpreted for adjudication purposes to avoid unintended outcomes and expedite the adjudication of these cases. We have a fiduciary responsibility to ensure that payments are lawful, but our chief concern is that the process yields reasonable and defensible outcomes across the entire complex now and for years to come. That has been and remains our focus.

    In summary, the record of our administration of the act is positive. Billions of dollars have been awarded, backlogs are rapidly diminishing, approval rates far exceed original projections, and litigation remains remarkably low. There's much to be done. We must eliminate the remaining backlogs and we must strengthen our overall delivery of services, but on balance, the EEOICPA program is unfolding as promised and can be expected to continue to do so.

    I'll be glad to answer your questions when the time comes.

    Mr. HOSTETTLER. Thank you.

    [The prepared statement of Mr. Hallmark follows:]


    Mr. Chairman, and Members of the Committee, my name is Shelby Hallmark. I am the Director of the Office of Workers' Compensation Programs (OWCP), a component of the Employment Standards Administration (ESA), Department of Labor (DOL).

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    I am pleased to appear before the Subcommittee today to discuss our efforts to fulfill the promise made to veterans of the cold war with the enactment of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA). Since the initial implementation of this program, DOL staff have dedicated themselves to ensuring that we adjudicate claims and provide benefits to eligible workers and their survivors in a manner that is timely, fair, consistent, and according to the Law as enacted by Congress. We believe the results demonstrate that the promise of the statute is being kept.

    There have been assertions made in previous hearings before this Subcommittee that the Department of Labor has been working to curtail the promise of the Act. That is not the case, and I will also present evidence that we are, in fact, administering the program in the best interest of the workers and survivors for which it was intended, and as outlined in the law.


    The EEOICPA has been and continues to be an interdepartmental activity, involving the coordinated efforts of the Department of Energy (DOE), Health and Human Services (HHS), Department of Justice (DOJ), as well as DOL. As the lead agency for EEOICPA, we are proud of the overall progress we've made in implementing both Parts of the Act.

    The Department of Labor has administered Part B of the program since its inception in 2001. In October 2004, Congress chose to entrust DOL with a new facet of EEOICPA, Part E, to redress issues with the earlier Part D program. Throughout the brief history of the Act, DOL has worked hard to fairly and effectively administer these complex programs, according to the requirements of the statute. In doing so, we have set challenging performance targets to ensure that workers and their families, who have waited for so long, receive prompt and accurate decisions. Although we have much work still to do, we have consistently exceeded our performance goals and will continue to press ahead as quickly as possible until all backlogged cases are resolved.
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    The EEOICPA program is still new and evolving, but a great deal has been accomplished. Workers who haven't yet received a final decision, or who are unhappy with a decision, may question our success in fulfilling its promise, but a full and fair analysis of the program indicates that it is moving forward effectively.

    Since the inception of the program, claims have been filed for EEOICPA benefits on behalf of more than 58,000 individual workers. Of those, 43,000, or nearly 75%, have received at least one final decision from DOL (individuals can receive multiple decisions under Part B and Part E). More than 22,000 individuals have received in excess of $2.25 billion in lump sum compensation under Part B, Part E or both, as well as $133 million in medical benefits.


    The EEOICPA was initially enacted on October 30, 2000. It established a federal payment program (Part B) under which DOE contractor employees and certain other employees and their eligible survivors are entitled to receive federal compensation and medical benefits for radiation-induced cancer, beryllium disease or silicosis. Executive Order 13179 of December 7, 2000, assigned primary responsibility for Part B administration to DOL. DOL's delegated responsibility included addressing issues raised in the claims process regarding dose reconstructions conducted by the National Institute for Occupational Safety and Health (NIOSH). DOL moved swiftly to issue Interim Final Regulations in May 2001, and established a fully functioning program on schedule. Secretary of Labor Elaine Chao presented the first EEOICPA check on August 9, 2001.

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    To date, more than 76% of Part B cases have received a final decision, and payouts are approaching $1.75 billion. Another 11% of Part B cases are at various stages of dose reconstruction with NIOSH. The vast majority of the remaining 7,000 cases were received during the past year and are moving promptly through the various stages of the adjudicatory process. The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has met its timeliness goals for processing Part B cases every year, and although the time to complete Part B actions has increased in 2006 due to the addition of the new Part E program, the average time to issue initial decisions was 175.2 days, less than the program standard of six months. In FY 2006, DEEOIC's Final Adjudication Branch achieved an 88% rate for issuing final Part B decisions within established program standards. Although these complex occupational disease claims take time, we are generally pleased with the speed of adjudication once dose reconstruction is completed.

    Some have cited the approval rate for Part B cases, which are subject to the dose reconstruction process, as evidence that the intent of the statute is not being realized. To date, approximately 29% of such cases have received a final decision conferring benefits, and nearly 5,000 claimants have received over $534 million in benefits via this process. To assess these outcomes, one must understand the choices Congress made in establishing the Part B program's approach to adjudication of radiogenic cancer claims.

    When Congress was considering the legislation that became Part B of EEOICPA, it was confronted with a difficult choice concerning how the government should determine whether a cancer was sufficiently work-related to justify compensation under the new compensation program. Decades of experience demonstrated that requiring medical evidence that an individual cancer was related to radiation exposure was not a workable solution because of the inability of scientists or doctors to determine the specific cause of any particular cancer. Therefore, Congress chose to use a statistical epidemiological approach requiring a claimant to establish that a worker's cancer was ''at least as likely as not'' related to workplace exposure when that probability was calculated using a version of statistical tables previously developed by the government. Since there was substantial evidence that recordkeeping at many covered facilities was less than comprehensive, it was understood by the sponsors of the legislation that the process would not be perfect but would be based upon estimation and probability.
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    In view of previous experience with such statistical tables, the fact that some types of cancer have been found not to be significantly radiogenic, and the fact that the National Cancer Institute estimates that the incidence of cancer in the general population is over 40%, it was clear that many cancers would be found to have less than a 50% probability of work-related causation and would thus not lead to a decision to compensate the claimant. However, Congress did specify in the legislation that a 99 percent confidence interval be used in the calculation. (For each specific dose reconstruction there is a range of possible resulting probabilities of causation. This means that if only one percent of these possible outcomes are 50 percent or more, the claim is awarded benefits.) This provides a very large margin for error in favor of claimants. Nevertheless, the DOE initially estimated, based on their knowledge of exposures in the complex and epidemiological studies of cancer incidence, that less than 5% of nuclear weapons workers who incurred cancer would reach the 50% probability of causation threshold.

    In practice, the strenuous efforts of NIOSH to be fair to claimants and resolve ambiguities in their favor have resulted in the current approval rate of 29% for such claims, far in excess of any predictions when the legislation was being considered. Those whose claims are denied often feel strongly that the cancers involved were caused by work-related exposure to radiation, and one cannot help but sympathize with individuals diagnosed with cancer, and with their families. However, DOL must make determinations consistent with the requirements of the statute.


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    In addition to administering Part B of the Program, DOL has responsibility as the lead agency for Part E (which replaced Part D) of the Act. Congress initially included a second program in EEOICPA, Part D, which required DOE to establish a system by which DOE contractor employees and their eligible survivors could seek assistance in obtaining state workers' compensation benefits. In the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. 108–375 (October 28, 2004), Congress abolished Part D of the EEOICPA, created a new Part E in its place, and assigned administration of Part E to DOL. Part E established a new system of federal payments for DOE contractor employees and eligible survivors of such employees. Part E benefits were also extended to uranium miners, millers and ore transporters covered by Section 5 of the Radiation Exposure Compensation Act (RECA). Congress specified that DOL prescribe Interim Final Regulations implementing the amendments to EEOICPA with 210 days of enactment.

    When the amendment was passed in October 2004, there were more than 25,000 cases pending with the old Part D program, many for more than four years, thus creating an instant backlog for the new program. Within two months of enactment, DOL began providing compensation under the newly established Part E of the EEOICPA, using preliminary procedural guidance. Interim final regulations were implemented by May 2005, within the deadline established by Congress. Since its inception, the DEEOIC has provided more than 4,000 employees or their families with Part E compensation payments exceeding half a billion dollars. In addition, DOL set specific Part E targets for fiscal year 2005 and fiscal year 2006, to issue payments and make initial decisions on backlogged cases. DOL exceeded these goals in both years, issuing over 1,500 payments in fiscal year 2005, and issuing initial decisions on more than 75% of the backlogged cases by the end of fiscal year 2006. By the end of 2007, the new program will have eliminated the backlog and will be current in processing all incoming claims.
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    Aside from the cases inherited from Part D, during FY 2006 DOL was able to reach initial determinations on new Part E claims within program standards 73% of the time, with the average time required being 132 days.

    For greater efficiency, simplicity, and speed, DEEOIC now adjudicates all claims for benefits under Parts B and E of the EEOICPA as one EEOICPA claim. Where possible, decisions are issued that address both Parts B and E simultaneously. However, partial decisions may also be issued in cases where benefits under some provisions can be awarded but claims under other provisions require further development. Once the backlog of inherited claims has been fully resolved, we will direct maximum attention on driving down the time to process each step of these claims, while continuing to work to improve the quality of our decisions. We are focused on doing everything we can to speed the processing of claims under this program, and to getting compensation and benefits to all eligible injured workers and their families.


    The complexity involved in EEOICPA—the exposures and diseases involved and the science required to relate them to one another, the multiple benefits available and separate eligibility rules under the two Parts, and the multiple agencies engaged in delivering the program—as well as the advanced age of many current and potential claimants, necessitate extraordinary effort to inform and assist the affected community. DOL has utilized a wide range of methods to educate the public and provide specific assistance in completing forms and navigating through the process of submitting evidence and other information.

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    DOL has undertaken significant outreach activities in an effort to provide detailed information to the employees or survivors who may be eligible for benefits. As a first step, DOL established resource centers (now 11 in number) located throughout the country, in which knowledgeable staffs work one-on-one with claimants to file appropriate forms and submit information to DOL relevant to those claims. Information is provided face-to-face and via toll-free telephone service. Resource center staffs provide all relevant information at the initial stages of claim submission and personally answer any questions that arise. They also participate in numerous community events in their jurisdictions to get the word out to various groups that may include potential claimants.

    To attract maximum attention to the program, DOL held well-publicized Town Hall meetings throughout 2001–2005 in various locations throughout the country where there was a significant population of individuals currently or formerly employed at covered facilities. DOE and NIOSH also participated in most of these meetings, providing information and answering questions about their responsibilities under the statute. These meetings were well attended by employees, survivors and special interest group members. DOL continued to conduct these meetings during 2006 as new regulations and procedures were developed.

    In addition to educating the public about benefits, DOL has forged key relationships with various entities that have information that may be pertinent in the successful adjudication of claims. DOL understands the difficulties claimants may have in locating employment and exposure records needed to issue fair decisions. As a result, DOL has contracted with the Center to Protect Workers Rights (CPWR) to track down information about construction workers who may have been exposed at DOE sites but whose employment information was not captured in DOE prime contractor datasets. We also work with the DOE Former Workers Program, and with other contractors, to locate appropriate records which are not immediately available through DOE. These valuable relationships help relieve the burden on the claimants to locate these records. In addition, DOL has developed a site exposure matrix, which is a detailed database containing information concerning the types of chemicals that may be found at a given covered facility. This matrix is utilized by claims staff in the district offices to determine toxic exposures. These relationships and tools have been significant in reducing the amount and types of information required to be submitted by claimants.
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    In an effort to further assist claimants in the processing of claims, DOL has contracted with over 200 physicians throughout the country to provide medical evidence for use in issuing decisions related to causation and impairment issues. These district medical consultants work with DOL to review particularly difficult claims, or where claimants have no access to physicians able to provide the necessary medical evaluations, and to assist DOL staff in issuing accurate and thorough decisions.

    Each of the four DEEOIC district offices and its Final Adjudication Branch maintain toll-free telephone lines and receive and promptly respond to thousands of inquiries each year.

    These efforts demonstrate DOL's dedication to reaching out to the public, and to alleviating burden on claimants by assisting them in perfecting their claims at all stages of the adjudication process. Those who have experienced difficulties in navigating this complex program may be disappointed that we have not done more, but we are working continuously to further improve that assistance, and we urge claimants and family members who are confused or uncertain about the meaning of program documents or how they should proceed to contact us directly to address those concerns.


    Given DOL's role as lead agency in the administration of the EEOICPA, significant coordination is required with other federal agencies, including NIOSH, DOE, and DOJ. NIOSH (a component of HHS) supports the program by conducting radiation dose reconstruction and handling requests for expansion of the Special Exposure Cohort (SEC). The DOE and many of its contractors supply employment and exposure information. The DOJ coordinates the coverage of certain uranium workers also covered under the Radiation Exposure Compensation Act (RECA). We've worked from the beginning to coordinate all these agencies' EEOICPA activities so that the program functions as it was intended.
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    A key element in processing a great number of Part B claims is the NIOSH dose reconstruction process. Although NIOSH is responsible for conducting the research necessary to provide claimants and DOL with a detailed dose reconstruction report estimating work-related radiation exposure, the ultimate responsibility for issuing recommended and final decisions rests with DOL, utilizing the NIOSH dose reconstruction and other evidence in the file. (See the discussion below on cases returned to NIOSH for rework.) NIOSH requests input and claimant signatures on dose reconstruction documents, but the signature only acknowledges receipt of the document and does not constitute concurrence or objection. DOL's Final Adjudication Branch (FAB) is a claimant's only opportunity, prior to issuance of the DOL decision, to contest a dose reconstruction. Consequently, it is imperative that DOL thoroughly review and understand the dose reconstruction reports provided by NIOSH such that we may issue fair and equitable decisions to the claimants.


    In testimony provided at previous hearings before this Subcommittee, it has been alleged that DOL has attempted to carry out a covert budget cost containment effort. As I testified on March 1, 2006, this is simply not the case. This issue initially arose in the context of an Office of Management and Budget (OMB) 2007 budget passback document which outlined various options related to the NIOSH SEC and dose reconstruction processes. As the Administration has previously testified, it is not pursuing any of these options.

    As indicated above, DOL, as lead agency in the administration of the EEOICPA, is ultimately responsible for issuing fair and equitable decisions to claimants. This requires close coordination and analysis of activities undertaken by other agencies involved in the process, including NIOSH. DOL's only goal in reviewing NIOSH dose reconstructions is to ensure that final decisions are accurate, fair and consistent.
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    Performance at the DOL and NIOSH technical staff level provides significant insight into the workings of both agencies on day-to-day program coordination activities and DOL's effort to ensure fairness and uniformity in program decisions, while further demonstrating that DOL is in no way attempting to administer EEOICPA in a manner that is driven by cost containment. Two areas that are demonstrative of program performance are DOL decisions requesting NIOSH reworks of completed dose reconstructions, and DOL decisions in addressing claimants' technical objections to NIOSH dose reconstructions. The latter is of utmost importance since the only avenue for claimants to object to the NIOSH dose reconstruction procedures is through the DOL claims adjudication process.


    As part of the DOL claims process, upon receipt of a dose reconstruction report from NIOSH, claims staff reviews the reports for accuracy and consistency prior to issuing recommended or final decisions on cases. Sometimes they recognize anomalies in the reports which require further analysis. For example, a dose reconstruction may have been conducted based on an incorrect diagnosis code, or additional evidence received after the dose reconstruction was completed by NIOSH may reveal expanded employment, or medical evidence has been submitted revealing that an employee had an additional cancer. In these instances, the claims staff either at the district office level or at the Final Adjudication Branch must determine whether a claim should be returned to NIOSH for a ''rework.'' The DEEOIC Procedures, (EEOICPA Bulletin No. 04–01, issued in 2003) state the following:

''The DEEOIC Health Physicist serves as the central liaison between NIOSH and DOL on all dose reconstruction related issues. All requests for reworks of dose reconstruction reports must be forwarded to the DEEOIC Health Physicist for review. The DEEOIC Health Physicist will review the request for rework and determine whether a rework is required. The DEEOIC Health Physicist will contact the claims examiner if additional information is needed to make a determination, which may include requesting the case file. If the information would change the outcome of the dose reconstruction or affects the accuracy of the case, the request for rework will be referred to NIOSH. If the information would not change the outcome of the dose reconstruction, the DEEOIC Health Physicist will send an e-mail to the claims examiner and the district office NIOSH liaison explaining the rationale for not continuing the review of the dose reconstruction report. When the claims examiner receives this response, he/she must [proceed with the appropriate calculation for adjudication of the claim].''
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    Between July 25, 2003 and November 16, 2006, DOL has returned 1,891 cases to NIOSH to have the dose reconstruction redone. The vast majority (1,677 or 88 percent) of these ''reworks'' have been cases in which the probability of causation (PoC) based on the NIOSH dose reconstruction was below 50 percent and thus would result in a denial of benefits. In these cases, the issues to be addressed by NIOSH would have the potential to increase the dose and thus may result in a PoC greater than 50 percent resulting in eligibility for benefits. There were only 224 cases returned for rework in which the PoC was initially over 50 percent with only 10 of these returned due to technical issues related to NIOSH's application of methodology. These statistics reveal that, if anything, DOL's analysis of dose reconstruction reports leans towards the side of the claimant, generally resulting in the potential for a more favorable decision.


    In addition to reworks, DOL also reviews dose reconstruction reports at the final adjudication level if a claimant raises a technical objection to a dose reconstruction, or if the Final Adjudication Branch hearing representative identifies a possible error. Claimants may either raise these objections in a written statement to the hearing representative or through an oral hearing. If a hearing representative receives such an objection or otherwise identifies a dose reconstruction issue, the case is forwarded to a DEEOIC Health Physicist to determine whether the objection merits returning the case to NIOSH for revision of the dose reconstruction.

    Statistics regarding the resulting remand orders issued by the Final Adjudication Branch (FAB) also demonstrate the absence of any cost-cutting motive in the DOL process. From the program's inception, FAB has issued 3,149 remands of Part B cases, of which 70 percent (2,198 cases) were cases in which a recommended decision had been issued to deny benefits. Following the remand, the district office reviews the case and issues a new recommended decision. Since denials make up 63% of all recommended decisions on Part B cases, but 70% of all remands involve denied cases, FAB remands a higher ratio of denials than approvals. Only 30 percent (951 cases) of remanded cases had a recommended decision to approve benefits initially, of which only 17 percent were remanded due to issues with a dose reconstruction.
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    Finally, a review of Director's Orders issued to reopen claims also reveals a careful attention to, and concern for, claimants' interests. A Director's Order is issued after a final decision by the FAB when a review of the claim or additional evidence reveals that the final decision should be vacated. This can occur based on a claimant's request for a reopening, or based on the Director's review of the claim for any reason. For example, information provided in a subsequent dose reconstruction report for another claimant may indicate that dose was missed for previously decided cases, and the Director has reopened such cases so that NIOSH can determine if the additional exposures also apply to those cases. DOL's performance relative to Director's Orders for reopening claims clearly demonstrates that DOL is committed to paying benefits when claimants are entitled. Since the inception of EEOICPA, 548 Director's Orders have been issued. With a very few exceptions, all Director's Orders to date have been issued on cases that have been denied by the FAB, vacating the decision and returning the case to the district office for further development or acceptance. The only approved cases that have been reopened have occurred when an employee dies before receipt of benefits. In these cases, a Director's Order is issued to vacate the final decision and offer the opportunity for an eligible survivor to apply for benefits. Additionally, most Director's Orders (269 cases) were issued without the claimant requesting such action, demonstrating the program's commitment of the program to ensure accuracy and deliver all benefits to which claimants are entitled.


    The creation of new SEC classes requires close coordination between DOL and NIOSH to determine which cases at the site in question have been affected by the new class and which continue to require dose reconstruction. Since NIOSH and the Advisory Board began discussions about the declaration of new classes, DOL has continually worked to ensure that the definitions of the class membership and the rationales presented as the basis for the new classes are clear, consistent, and fair.
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    Prior testimony before this Subcommittee asserted that DOL opposed SEC classes or sought to narrow them out of a purely ''budget driven'' agenda. Again, as I testified in March, this is not the case. Although DOL has a fiduciary responsibility with respect to the EEOICPA program, our efforts have been aimed at ensuring consistency and replicability of SEC declarations across the whole DOE complex and over time. Further, we have sought to ensure that SEC class declarations are undertaken with full knowledge of their implications—that is, while a class declaration makes eligibility presumptive for claimants with one of the listed 22 cancers, those who have an unlisted cancer may have their chances for eligibility reduced or expunged depending on the basis for the SEC class. In some cases, even those with a listed cancer may suffer negative impacts from the declaration. Finally, because each new SEC class designation has been unique in its rationale and in its impact on how (or if) dose reconstruction can be done for cancers that are not granted presumptive coverage, DOL and NIOSH have had to work out unique procedures for each class to determine how these cases will be processed. The return of large numbers of SEC cases from NIOSH also creates a large, unanticipated workload in DOL's district offices, and DEEOIC leadership has had to respond to those challenges by shifting caseloads among the four district offices. DOL clearly has an important need to participate in the SEC class declaration process, and our efforts to do so have been, and continue to be motivated by, these program imperatives.


    In summary, we believe the record of DOL's administration of EEOICPA demonstrates that promises made to the cold war veterans with enactment of EEOICPA are indeed being kept. Nearly $2.4 billion in monetary and medical benefits have been distributed to over 22,000 eligible workers and their survivors. Backlogs of cases generated at the inception of Parts B and E have been aggressively addressed and are rapidly diminishing: 76% of Part B cases have been decided by DOL, with another 11% (under 6,000) are awaiting NIOSH dose reconstruction; more than 75% of the old Part D backlog inherited by DOL from DOE has received an initial determination under Part E, and the remainder will be processed to that point in 2007. Approval rates far exceed those originally projected for the Part B program, and litigation remains remarkably low. A review of DOL's administrative handling of cases involving dose reconstruction show that in the great majority of cases remanded or returned to NIOSH for reconsideration of dose reconstructions, DOL was supporting the claimant's opportunity to achieve a better outcome.
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    This is not to say that there is not much left to be done. DOL will continue to drive towards backlog elimination, strengthen its processes and procedures, improve training for its staff, maintain its ongoing outreach efforts, extend access to information about the program in numerous ways, and continue to provide extensive assistance to claimants in obtaining critical employment, exposure, and medical evidence to support their claims. NIOSH is similarly engaged in clearing out its oldest cases and reaching a steady-state situation, and the Department of Energy has redoubled its commitment to support both NIOSH and DOL information needs. On balance, the EEOICPA program is unfolding as promised, and can be expected to continue to do so.

    Mr. HOSTETTLER. Dr. Howard.


    Dr. HOWARD. Thank you, Mr. Chairman.

    My name is John Howard, the Director of NIOSH of the Centers for Disease Control and Prevention and the U.S. Department of Health and Human Services. I just wanted to give you an update on the claims that we've completed in our process.

    Of the 22,761 that have been sent to us by DOL, we've returned 16,317, or 72 percent of the claims that we've received. Of the first 5,000 claims, which were the ones that were in the queue the longest, we've completed 4,899, or 98 percent of those. We have 4,491 claims remaining, of which 3,110, or 69 percent, are older than 1 year. Our goal is to have, by June of 2007, no claim in our system more than 1 year old.
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    We've added 10 classes to the SEC. Three more are going to be added as of this Sunday unless Congress takes action otherwise. So that's a total of 13, covering 11 sites and 1,100 claimants.

    We have nine petition-requested classes and four NIOSH-generated classes in that group. Three more NIOSH-generated classes are being submitted next week at the board's meeting in Naperville, Illinois, along with two petitioner-requested classes, for a total of five.

    We have two new resources that are important to claimants that I wanted to mention to you today. One is an SEC petition counselor. I'm pleased to report that Laurie Ishack of our Compensation Analysis and Support office in Cincinnati is filling this position; and most importantly, we have a petitioner/claimant ombudsman position which will come on board shortly, probably tomorrow. I'm pleased to report that Ms. Denise Brock will serve as petitioner/claimant ombudsman for NIOSH, under contract, reporting to the NIOSH director.

    We have a conflict of interest policy that we've been working on most of this year, which we finalized in October; and we have a NIOSH conflict-of-interest officer for NIOSH and its contractors. We're working toward a mid-December implementation date.

    Since my last testimony in March of this year, the board has held 29 working group subcommittee or full Board meetings. The point I wanted to mention here is that we have provided verbatim transcriptions and detailed minutes of all Board meetings and the subcommittee meetings of the working groups and make them available to the public through our Web site.
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    As Ms. Jackson Lee reported at your last hearing in November, a witness raised concerns regarding the data quality of NIOSH dose reconstructions. We have contacted that witness to apologize for the problems created and I apologized to her myself on the record. We've conducted conversations and agreed with her on an approach to expeditiously correcting the deficiencies in her dose reconstruction.

    NIOSH has made a lot of progress in carrying out the responsibilities of the Health and Human Services Department under this act, and that is due to the input of all parties, including this Committee and its staff. It is only when science receives the kind of scrutiny in the public forum that is robust that we can trust its conclusions. We look forward to continuing to make progress, with all parties putting their input on the table in a public forum about our science.

    Thank you for the opportunity to testify, and I look forward to answering your questions.

    Mr. HOSTETTLER. Thank you.

    [The prepared statement of Dr. Howard follows:]


    Mr. Chairman and Members of the Subcommittee, my name is John Howard and I am director of the National Institute for Occupational Safety and Health (NIOSH), part of the Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services (HHS). I am pleased to appear before you today to provide testimony on the status of HHS activities under the Energy Employees Occupational Illness Compensation Program Act of 2000 (''the Act'').
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    The role of HHS in this program is to focus on the science of doing dose reconstructions, the related issue of considering and deciding petitions from classes of employees wishing to be added to the Special Exposure Cohort (SEC), and provide support for the Advisory Board on Radiation and Worker Health (''the Board''). Other areas of this program, such as processing and payment of claims, are under the purview of the Department of Labor (DOL), which has lead responsibility for administering EEOICPA.

    NIOSH is proud of the work we have done to implement EEOICPA. I will update you on the progress NIOSH has made to date, then discuss some of the challenges that we are currently addressing.

    As of November 30, 2006, DOL has referred 22,761 claims to NIOSH, and NIOSH has returned 72% (16,317) of these to DOL with a completed dose reconstruction. NIOSH has returned to DOL an additional 4.9% (1,121) for a determination of SEC eligibility; and DOL pulled an additional 2.7% (631 claims) for various reasons. Ten classes of workers have been added to the SEC to date. Three additional classes recently have been approved by the Secretary for addition to the SEC—they were sent to Congress on November 9, 2006, and will become effective on December 9, 2006, unless Congress determines otherwise. At the September meeting of the Board, DOL reported that more than $572 million had been paid to claimants with completed dose reconstructions or to members of an HHS added, non-statutory SEC class.

    In October 2005, as part of our commitment to expedite completion of the first 5000 cases NIOSH awarded a contract to Battelle Science and Technology to assist with the reconstruction of exposure conditions at various Atomic Weapons Employer facilities and the completion of individual dose reconstructions. Of the first 5000 claims that NIOSH received from DOL, we have completed dose reconstructions or sent to DOL for adjudication 4899 or 98% of the cases. NIOSH has committed to completion of these first 5,000 claims as a top priority so claimants can have resolution of their cases.
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    NIOSH also has taken the step of initiating petitions for adding classes to the SEC when NIOSH lacks data to estimate radiation doses with sufficient accuracy. Of the ten SEC classes that have been added to date and the three that will become effective this week, four were NIOSH-initiated: Linde Ceramics Plant in New York, Nevada Test Site, S-50 Thermal Diffusion Plant in Tennessee, and Los Alamos National Laboratory in New Mexico. Three more, Allied Chemical, Harshaw Chemical, and General Atomics, have been initiated and submitted to the Board for consideration at the Board meeting next week.

    For petitioner-initiated SECs, we have two new resources to assist petitioners: the SEC Petition Counselor and the NIOSH Petitioner/Claimant Ombudsman. The SEC Petition Counselor will provide guidance to anyone who wishes to submit an SEC petition. She will assist the petitioner(s) in understanding the complex development, submission, qualification, evaluation, and Board deliberation processes that the petition will undergo. NIOSH's goal is to help everyone understand the complete petition process, and the SEC Petition Counselor will work with petitioners to help them overcome frustration or confusion that they may feel when submitting an SEC petition. Petitioners may also turn to the NIOSH Petitioner/Claimant Ombudsman. I am pleased that Ms. Denise Brock, who has testified before your subcommittee about her diligent and successful effort with the SEC petition of Mallinckrodt Chemical Works in Missouri, will be the NIOSH Petitioner/Claimant Ombudsman. She will be an independent, objective resource person to help with NIOSH interactions with claimants and petitioners. Ms. Brock will be a contractor employee with three specific goals: first, to hold individual meetings with claimants and petitioners to assist them in the claims and SEC processes; second, to facilitate workshops presented to groups of claimants and petitioners; and third, to review and suggest improvements in the communications vehicles NIOSH uses in interacting with claimants and petitioners. Ms. Brock will report her findings directly to the NIOSH Director's Office. Ms. Brock will be a tremendous asset to both the claims and SEC petition processes.
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    I am pleased also about the completion of another effort that has been months in the making. On October 17, 2006, NIOSH finalized and posted on our website the conflict of interest policy for the EEOICPA program activities. The policy had been presented to the Board in draft form and was revised in response to comments from the Board and the public. All covered entities, including NIOSH and its contactors and subcontractors, will post on their respective websites by December 17, 2006, their procedures for demonstrating compliance with the policy. I have appointed a NIOSH Conflict of Interest Officer, who has held a planning meeting to start implementation by NIOSH of the policy. Since NIOSH is committed to transparency in all aspects of EEOICPA program activities, all conflict of interest disclosure forms will be posted on our website or can be accessed through a weblink on our website.

    As I have mentioned, the Board provides guidance and oversight for HHS EEOICPA activities, focusing on scientific detail and peer review of the soundness of NIOSH's scientific work, and provides recommendations to the Secretary on the addition of classes to the SEC. HHS provides administrative services, funds, facilities, staff, and other necessary support services.

    I reported to you in my March testimony that the Board had met a total of 46 times in working groups, subcommittee, and as the full Board. Between March and now, the Board has been especially busy, holding 20 working group meetings, 6 Board meetings, and 3 subcommittee meetings. The next Board meeting will be next week, December 11–13, 2006, in Naperville, Illinois. The Naperville site was chosen for the Board meeting so that interested claimants and petitioners from Blockson Chemical Company, one of five SEC petitions to be considered by the Board at the meeting, may more easily attend the meeting and address the Board during the public comment period.
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    The Board provides guidance to HHS on all aspects of EEOICPA program activities and we greatly appreciate its meticulous efforts. Since NIOSH is dedicated to transparency in all aspects of the program, all Board meetings, including working group meetings, are publicly announced and open to the public. We exceed the requirements of the Federal Advisory Committee Act (P.L. 92–463) by providing verbatim transcriptions and detailed minutes of all Board meetings, including those of working groups, and making them available to the public through our website.

    To assist the Board in its work, CDC uses a technical support contractor, Sanford Cohen & Associates (SC&A). SC&A assists to the Board in reviewing NIOSH's dose reconstruction estimates, site profile documents, and SEC petition evaluations.


    In conclusion, NIOSH has made much progress in carrying out the responsibilities of HHS under EEOICPA: we have completed more than 16,000 dose reconstructions, representing 72% of the over 22,000 claims received. Together with those covered by a SEC class, this has resulted in almost $600 million in compensation. But we still have a long way to go. We will continue to value transparency in all activities and strive to ensure that all of our work is of the utmost reliability and integrity. We look forward to continuing to make progress in our work to assist the heroes who have cancer as a result of exposure to unique hazards in building the Nation's nuclear defense.

    Thank you again for the opportunity to testify. I am happy to answer any questions you may have.
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    Mr. HOSTETTLER. Mr. Bertoni.


    Mr. BERTONI. Good afternoon, Mr. Chairman, Members of the Subcommittee. I'm pleased to be here to discuss work on the Energy Employees Occupational Illness Compensation Program, which provides benefits to individuals who are exposed to hazardous materials who develop illnesses such as cancer and lung disease. The Department of Labor administers the program with the assistance from HHS, NIOSH and an independent Advisory Board.

    To date, Labor has made payments to over 21,000 claims, totaling $1.7 billion. We have issued several reports identifying needed improvements in this program. However, since the issuance of our February 2006 report, a memo from the Office of Budget to Labor has renewed congressional concern about program management, the potential efforts by the Administration to inappropriately contain compensation benefits.

    My testimony today will focus on three areas. First, I'll discuss our prior work, documenting problems with claims processing and program design; second, I'll discuss key findings from a report on the work of the Advisory Board; and third, I'll highlight an aspect of our ongoing work that is relevant to the OMB memo.

    In summary, GAO has maintained a constant audit presence in regard to this program. In 2004, we reported that a shortage of qualified physicians hinders timely adjudication of Subtitle B claims, and without needed changes, many claimants could wait years to pursue workers' compensation. In the interim, their medical condition could deteriorate or they could die. We concluded that specific actions were needed to expedite claims processing, enhanced communications with claimants, and improved case management data. In the same report, we identified a structural problem that could lead to inconsistent benefit outcomes. Our analysis of cases in nine States showed that over 3,000 lacked a willing payer of benefits and were likely to be contested. We outlined various options for change and the Congress subsequently enacted legislation to dramatically restructure the program.
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    In 2004, we also reported that in the first 2-1/2 years of implementation, Labor and NIOSH had processed only 9 percent of the more than 21,000 claims referred for dose reconstruction, primarily due to the complexity of this workload. Because site profiles are often critical to processing dose reconstructions, we recommended that specific time frames be established for completing all remaining profiles.

    Earlier this year, we reported that the roles of certain officials initially involved in the Advisory Board's review of dose reconstructions may not have been sufficiently independent. Since credibility is essential to the work of the Board, we cautioned that continued diligence was required to avoid actual or perceived conflicts. They also found, in the first 2 years, the Board's contractor had spent almost 90 percent of the $3 million allocated for a 5-year undertaking. We recommend various actions to enhance the Board's oversight role.

    Finally, GAO is currently conducting work for this Subcommittee on a range of Subtitle B issues. One aspect of our review is especially relevant to the OMB memo and includes examining whether Labor, in an effort to constrain program costs, is involved in activities primarily tasked to NIOSH, the Advisory Board or the Board's contractor. While it is reasonable for OMB to monitor the cost of Federal programs, concerns have been raised that certain options in the OMB memo could result in decisions unduly based on budgetary considerations rather than established scientific procedures.

    Our work in this area is ongoing. We have not drawn any conclusions. However, I would like to briefly highlight some preliminary observations in areas we plan to focus on going forward. We know that Labor's internal correspondence indicates substantial concern about rising program costs and new SEC petitions. We also know that NIOSH has shared draft versions of key documents such as Special Exposure Cohort petition evaluations with Labor before finalizing and sending them to the Advisory Board for review. NIOSH also recently agreed to allow Labor to review and comment on drafts of various technical documents such as site profiles, technical basis documents, and technical information bulletins, all of which are used for dose reconstructions.
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    Labor has provided comments on these documents. Officials told us that the basis for their involvement is Labor's designation as the lead agency for administration and that their input is aimed at promoting clarity and consistency in the adjudication of claims.

    Labor has also reviewed thousands of dose reconstructions completed by NIOSH and returned many cases for rework. Officials told us that they review all reconstructions, return them if they find factual or methodological errors. We are currently examining extent, nature and outcome of Labor's comments on these various documents. This includes requesting all relevant documentation and related data. As the review proceeds, we plan to obtain more information on key issues such as timing, nature and basis of Labor's activities.

    Mr. Chairman, this concludes my statements. I'd be happy to answer any questions that you or other Members of the Subcommittee may have. Thank you.

    Mr. HOSTETTLER. Thank you, Mr. Bertoni.

    [The prepared statement of Mr. Bertoni follows:]


[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]

    Mr. HOSTETTLER. We will now turn to questions.
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    Mr. Hallmark, your testimony today states that the Department of Labor has a helpful role to play in defining the parameters for who should be treated as part of the Special Exposure Cohort and who should be excluded. You also assert that this has nothing to do with cost containment.

    However, in an October 2005 Department of Labor memo, prepared for the OMB, it states, ''DOL has also experienced problems in several cases with a description of the class adopted by the National Institute for Occupational Safety and Health, or NIOSH. In view of the effect and costs of an overexpansive definition, we suggest that such determinations also be subject to OMB clearance.''

    Explain why involvement with setting up the class definition does not also overlap with the Department of Labor's agenda to reduce the costs of benefits.

    Mr. HALLMARK. Well, first of all, Mr. Chairman, we don't have an agenda to reduce costs. As I have said before and I will continue to say, our agenda has been and continues to be to focus on accomplishing consistent, fair and legally sufficient outcomes. That has been and will continue to be our approach.

    With respect to the issues that you're raising from the October memorandum, those are all issues associated with the OMB memo, passback memo, that has been discussed since the March hearing. OMB testified before you that they are not pursuing those options, the Administration is not pursuing them, the Department of Labor is not pursuing them; they are, in effect, a debate that's over. I believe that that is, in fact, a clear description of the situation.
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    Mr. HOSTETTLER. Let me just ask you, are you familiar with this memo that states, ''In view of the effect and costs of an overexpansive definition, we suggest that such determinations also be subject to OMB clearance?''

    Are you familiar with that memo?

    Mr. HALLMARK. I'm not sure whether I'm familiar with that particular memorandum or e-mail, but I'm sure those terms are used in a lot of the e-mails that occurred, especially in that time frame.

    Our interest is in consistency and fairness and lawful outcomes. The use of the costs comes in when people ask us for estimates of costs, and it's a shorthand way of discussing the significance, the size of a particular kind of issue that's being discussed. But that doesn't change the fact that the real concern there is consistency and fairness.

    What we want to do is make sure that everybody is treated fairly in this; and as I said earlier, in establishing a particular class, HHS is granting benefits, presumptive benefits, to some individuals who have one of the 22 listed cancers. By the same decision, they are reducing the possibility of benefits being received by the other 40 percent who don't have one of those listed cancers. So that's one of the issues that we have tried to impress upon the Board, NIOSH and HHS, that ideally the SEC designations should be done very carefully and with an idea toward trying to avoid negative impacts, where it can be done.

    Mr. HOSTETTLER. Have you received any communications from OMB, formal communications in memorandum form, ordering the Department of Labor to cease and desist from implementing the OMB passback memo?
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    Mr. HALLMARK. I'm not aware of a specific memorandum but there have been many communications that I have been made privy to in terms of both the statements made by OMB before this Committee and letters directly to various Members of Congress. Those are shared with me and with my leadership; and it's very clear what the position of the Administration is, and we are following that position.

    Mr. HOSTETTLER. So is there official documentation that can be accessed by the Committee similar to the passback memo?

    What we're suggesting is, there's a lot of discussion and rhetoric and it's all very encouraging rhetoric. But is there any official communication between the Office of Management and Budget and the Department of Labor with regard to the passback memo and to negate its impact?

    Mr. HALLMARK. I am aware of numerous conversations, e-mails, and as I said, the public documents that I have referenced just a minute ago. There may be other documents that I haven't seen, but I'm not aware of them. In any case, the policy is clear.

    Mr. HOSTETTLER. Could you make these public documents available to the Committee? We have not seen these public documents.

    Mr. HALLMARK. The documents I was referring to are letters from OMB to Members of Congress.

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    Mr. HOSTETTLER. But that's actually more rhetoric. My question is a formal indication to the Department of Labor that the passback memo is null and void, and that's not what I'm hearing. Is there such a memo that says the passback memo is void?

    I'm hearing a lot about conversations and letters written to Members of Congress, but is there—is there a document similar to the passback memo that has been—communication that has been made in memo form saying that the passback effectively is null and void?

    Mr. HALLMARK. Not to my knowledge or recollection.

    Mr. HOSTETTLER. Thank you.

    Dr. Howard, the Advisory Board on radiation worker health is required to have a balance of scientific medical and worker perspectives. Today, only two bring a worker perspective and only two bring a medical perspective. Do you consider the Board to be in balance with the requirements of EEOICPA? If not, explain the steps that the Administration has taken to rectify the imbalance with the statutory requirements.

    Dr. HOWARD. Yes, Mr. Chairman. I'm not sure that right now with vacancies on the Board that anyone can argue we're in balance, because we have vacancies. I think our role in this at NIOSH is to collect opinion from any party, the Board, any public member, others who would like to nominate individuals to serve on the Board; and then to look into their nomination, get a resume together and then forward those recommendations to the White House. This is a Presidential advisory committee, so we ourselves don't make those selections.
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    Personally, I'd like to see our board filled with all of its statutory members and to have that balance of scientific, medical and worker perspectives, so—when we lose any individual in any of those three groups then we lose that perspective, so it's important that we have that balanced perspective. I'm hoping that the President's appointment office will work expeditiously to fill those vacancies.

    Mr. HOSTETTLER. My time for this first round has concluded, but before I move on, Dr. Howard, I just want to commend you for your naming of the two new resources to assist petitioners, the petition counselor and the petitioner/claimant ombudsman, and especially the naming of Ms. Brock as your petitioner/claimant ombudsman. I appreciate that extraordinary effort to reach out to claimants to create that point of contact in both cases.

    The Chair will now recognize the gentlelady from Texas, Ms. Jackson Lee, for questions for 5 minutes.

    Ms. JACKSON LEE. Dr. Howard, allow me to echo the remarks of the Chair in terms of those appointees and appointments and the changes that have been made.

    Mr. Hallmark, let me—in this season of joy, you have a very interesting name, so I will try to be as joyous as I can; but I believe I made some opening remarks—I indicated that if the appropriate representative of the DOL—and this is not to disregard your position to make changes, at least sufficient changes to give Congress the impression that what you're saying today is all the way up the food chain—and that means the Secretary of Labor from my perspective—but that we will treat this process in the respectful way that it should be treated.
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    And despite the representations, there's sufficient documentation that speaks to cost containment and sufficient frustration by those covered and petitioning for compensation and those not covered that there seems to be a need, whether OMB needs to make a public statement, a printed document that clarifies that their job and task is not to short change, contain and make more difficult the rights of the petitioners or victims who are seeking compensation.

    So let me just cite for you an incident that occurred last week when the Department of Labor apparently told a health care provider of services under this program that it was being terminated. This frightened sick workers who did not have the time or the ability to quickly secure a replacement health care provider eligible for reimbursement by DOL. In one case, we are advised the patient is in end-stage disease and lives in a rural area.

    How many claimants were affected by the proposed termination of this health care provider and how many States? Did DOL suspend payment for this vendor's services, and if so, what was the reason? And what can be done to ensure that claimants are not cut off by health care services abruptly when you terminate a provider?

    Mr. HALLMARK. Ms. Jackson Lee, first, let me go back to the issue of the OMB memorandum that has been discussed by both yourself and the Chair. I neglected to mention that the OMB document, the original OMB document that started this entire discussion, enunciated a series of options. It was not a directive to the Department of Labor or anyone else; it was a series of ideas for discussion. Those ideas were never implemented. They aren't part of any directive to the Department of Labor or other entities. So that probably explains why there's not an OMB document directing that they not be followed.
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    Ms. JACKSON LEE. What would be very helpful—and I appreciate the testimony on the record—is a letter to that effect from the Department of Labor and from the Secretary of Labor that this was an advisory document, that to date no such practices have been implemented; and I'd go a step further to say at this juncture no such steps are intended to be implemented.

    Of course, every agency, as every Member of Congress, has a right to change as conditions change, but that would be a very helpful document as we try to help fix this issue.

    Mr. HALLMARK. I understand.

    To return to the second part of your question regarding the health care provider, this is a reference to a company by the name of Professional Case Management. I'll start by answering your second question.

    DOL did not propose to terminate services by this health care provider to any of the claimants involved. I believe there are roughly 50 individuals that this provider sent letters to saying that they, the provider, was going to cut off services, but that was not at DOL's instruction. There has, in fact, been an ongoing dispute between this provider and the Department of Labor regarding billing practices. We identified rather serious problems with the billings being provided by this company, and we put their bills under suspension for manual review. The company was issued its letters because the manual review has been slower than we would like, or they would like, and we are taking steps to make sure that review is accelerated.
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    But under no circumstances did we want those individuals to have their provider services cut off; and we have arranged, as of last Friday, with the company that those services will continue to all of the individuals who received that letter and to any other individuals for whom they're authorized as a provider.

    Ms. JACKSON LEE. Thank you.

    Let me move quickly. I do want to say, Mr. Hallmark, when is the final rule going to be issued under Subtitle E? It has been more than 18 months since the interim final rule was issued, and a number of important issues need to be resolved in the final rule that have been left in limbo.

    Can you explain the delay?

    Mr. HALLMARK. The final rule is scheduled for completion before the end of this calendar year, and I'm confident that will be accomplished. The process, as you know with any regulation, takes a substantial amount of time, and there's a large number of entities and individuals who review the document. It is in that review process, and I expect it will be completed——

    Ms. JACKSON LEE. You will take input still if there's some concerns that we may have on the final rule?

    Mr. HALLMARK. The rule is in the process of review within—following the comment period. So we don't have an opportunity at this point to accept additional comments.
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    Ms. JACKSON LEE. Let me, Dr. Howard, just mention that Texas has been particularly disadvantaged with this legislative process.

    There is no site profile for the Texas City Chemicals Plant. I happen to have been in the area of Texas City and elsewhere where these seniors are located and to hear their passionate plea, ''Can you help us?'' and ''Can you bring Congress down to our community so we can tell our stories?''

    Let me try to understand how NIOSH will do dose reconstruction for workers at Texas City Chemicals and just, from your view, your perspective on legislation that might help correct that by adding those areas that have not been included in this previous legislation.

    Dr. HOWARD. My understanding is, the statute does not cover contractors for AWE sites, and I believe that is an issue that is in your legislation. It's a class of workers without recourse under this program in terms of eligibility.

    Ms. JACKSON LEE. Do you see the value in assessing workers like that? I know Congress is charged to legislatively change it, but you're in the HHS. Can you see the value of trying to correct that problem?

    Dr. HOWARD. Definitely. Uranium or any other radioisotope, it doesn't matter what your employment status is, if you're near it, it's going to influence your body.

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    So from that perspective, from the scientific or medical perspective, I can't myself, as a physician, understand the distinguishing characteristics. However, I can certainly understand from the point of view of policy why those kinds of decisions were probably made in 2000.

    But from a medical standpoint, there's no distinguishing characteristic there.

    Ms. JACKSON LEE. I'm sorry, I didn't catch your answer as to—I know that these are subcontractors; is there any work NIOSH is doing on that?

    Dr. HOWARD. Not under the current law.

    Ms. JACKSON LEE. So what we would absolutely need is a change in the law. And therefore there are victims, of course, that are not being responded to because of—I call it ''this quirk in the law,'' frankly, and nothing more, nothing less.

    I appreciate your medical opinion, which is, exposure is exposure, and it's up to the policymakers to try to define how we can assist these individuals who have been impacted.

    Dr. HOWARD. Yes.

    Ms. JACKSON LEE. The Labor-HHS Appropriations Act of 2006 required NIOSH to submit a report on whether there are additional radiosensitive cancers which should be added to the list of 22 cancers. The report was due on June 30th.
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    What is the status of that report?

    Dr. HOWARD. That report is under review, final review, I hope, by the Department.

    Ms. JACKSON LEE. And any light at the end of the tunnel?

    Dr. HOWARD. I wish I had some light to shed on this. I do know that it's under review by the Department, and I make inquiries of the Department on a regular basis.

    We would have liked to have been on time. We're not. We apologize for that, but I'm sure people in the Department whose responsibility it is to review this are working hard on this.

    Ms. JACKSON LEE. Mr. Chairman, I know we're writing a lot of letters, but I would appreciate a letter to the Secretary of Health and Human Services to encourage a more expeditious response. This is now December and it is the end of the year. It was due in June and it's an important document—maybe a letter to encourage a speedier response.

    Mr. HOSTETTLER. I'll be glad to join the Ranking Member on that.

    Ms. JACKSON LEE. I'd appreciate it. Thank you, Mr. Chairman.
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    Mr. Bertoni, thank you very much for your presence here. You have mentioned internal correspondence at the Labor Department which reflects major concerns about the potential for rapidly expanding costs in Subtitle B benefits. Can you give us some representative examples of internal correspondence that reflect these concerns?

    Mr. BERTONI. I believe you're referring to page 9 of our formal statement. That's essentially a roll-up of—we only recently have begun to essentially wade into 4,500 pages of documents that were received by this Subcommittee for both Labor and NIOSH; and as we have begun to do so, we've noticed some memorandums and e-mails that pique our interest in terms of Labor's concern about increasing costs. And essentially we identified five initially, and we look forward to wading even deeper and seeing what else we can find. But it is our initial work.

    Really, the five that we identified dealt with the Mallinckrodt and the Iowa SEC petitions. I have the background materials that we used to roll up that one statement, and it refers to, we have five memos. Essentially the first is an April 14, 2005, assessment of Special Exposure Cohort issues that states, ''—and it's the director of OWCP—The ultimate impact of these two SECs, Iowa and Mallinckrodt, being granted would be to destabilize the entire rationale for the dose reconstruction process.'' One logical outcome would be a move, gradual or sweeping, to grant SEC status across the board. We estimate a $7 billion 10-year price tag for that eventuality.

    A February 22, 2005, memo from the director states—and it's to the Secretary of Labor, that indicates that the addition of these two new Special Exposure Cohorts could, ''threaten the stability of the current Part B program and would cause a $7 billion increase over 10 years if all sites became SECs,''—a very real possibility.
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    A January 27 memo—it's actually an e-mail from the director, states, indicates that the addition of several classes of employees at the Mallinckrodt and Iowa Army Ammunition Plant facilities to SEC would ''lead almost inevitably to SEC petitions being brought and accepted at virtually all DOE sites. That equates to added costs of somewhere between $5 to $10 billion over 10 years.'' We have others that essentially express the same concerns.

    To us, there are some terms in here, some statements that we really want to follow up on with the agency to get their sense of what exactly are they talking about in terms of undermining the program, opening the floodgates per se by allowing these two SEC petitions to go forward.

    So we are continuing to pursue this and we have not had the interviews that we will need to follow up with these folks to find out exactly what the rationale was behind some of these statements.

    Ms. JACKSON LEE. We thank you for very good and objective work.

    Mr. Chairman, I ask for unanimous consent of the list that Mr. Bertoni has just mentioned, that the list of the memos of Mr. Bertoni could be added to the record.

    Mr. HOSTETTLER. Without objection.

    Ms. JACKSON LEE. All right. Let me just say, none of us here are criticizing efficiency—and I'll close on this question—efficiency and concern about the importance of conserving and/or respecting the resources of the American people, but I'm disturbed by the litany or the list of memos that really go to the heart of compensation and decision-making, particularly impacting what Dr. Howard and his team are doing. And so my question to you is that, as we looked at these—or you've seen this list, and it appears that there may be translated from the list of memos an intervention by the Department of Labor to undertake reviews on what NIOSH is doing.
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    Do you see the appropriate nexus and connection that they should be interfering with what NIOSH is doing in their SEC petition evaluations and technical assessments that they're making?

    Mr. BERTONI. Well, initially, under—under Executive Order 13179, Labor is tasked with it being the administrator for this program. So, from a ''keep the trains moving'' operational standpoint, they should have some role in reviewing some of the key documents that affect the implementation of this program.

    What we're interested in is, over time, what has been the nature and extent of these reviews, and exactly, have they crossed over beyond clarity and consistency issues to, perhaps, questioning the science of a particular dose reconstruction site profile or petition. So, initially, we can't say whether that has occurred, and—but over the next coming months and weeks, we will be honing in on exactly those issues. We will be very interested in timelines pre and post memo, trends over the latter several months versus prior to the memo, and should be able to put together a—through data mining and analysis—a good sense of trends and the nature of the reviews and, at some point, make a determination of whether a line has been crossed, but I'm not in a position to make that determination right now, but we will be following up on that.

    Ms. JACKSON LEE. My time is up, Mr. Chairman.

    I just wanted to say that, Mr. Bertoni, we appreciate the effort to keep the train and the whistles and the bells going, but we don't want the train to be derailed. And I think that's an important question that has to be both asked and answered. I thank you for your testimony.
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    I yield back, Mr. Chairman.

    Mr. HOSTETTLER. I thank the gentlelady.

    The Chair has a couple of questions to ask of our witnesses.

    First of all, Dr. Howard, the Department of Labor has suggested internally that NIOSH has acquiesced to, ''claimant, Advisory Board and political pressure and allowed the Advisory Board to operate essentially as a worker advocacy organization.'' Much of this criticism seems to be centered around special cohort approvals and related rulemaking.

    My first question is: Is the Advisory Board providing peer review or worker advocacy? And two, does Mr. Hallmark's characterization of NIOSH square with the reality as you see it as agency director?

    Dr. HOWARD. With regard to the first question, I would say, most definitely, the Board provides peer review vital to the program. As I mentioned in my oral statement, science without that robust criticism from all parties—and the Board provides our formalistic paradigm for that together with its contractor, SC&A. Without that, then we at NIOSH have no assurance that our scientific conclusions merit the respect that we think they deserve, and in that process, the Board performs a vital function for us, so I would say that the Board does that very well. As I said, I'd like to see the Board fully balanced so that we have true worker representatives on our Board, but I think that the Board does a great job, in that regard, of peer review.
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    Mr. HOSTETTLER. Well, in that, let me just ask one more question. Do you think the Advisory Board is more or less susceptible to, say, political pressure than NIOSH in these determinations?

    Dr. HOWARD. Well, I'm not sure more or less. I think—I think the Board is a robust organization as a Presidential Advisory Board. They engage in robust discussion on a regular basis both in their formal meetings as well as in their subcommittee and working group meetings. Each issue is aired until everyone is satisfied. It's an exhaustive review that, I think, in the beginning when this program was being developed, nobody realized the nature and the scope of the review that would be necessary to settle some of these scientific questions. So, in that regard, again, I think the Board is performing a vital function for us at NIOSH.

    Mr. HOSTETTLER. Thank you, and then the second question: The Department of Labor's characterization of NIOSH, does that square with reality?

    Dr. HOWARD. And the characterization again? I'm sorry.

    Mr. HOSTETTLER. With regard to worker advocacy.

    Dr. HOWARD. Well, I don't think that paints an accurate picture, myself. I think what we're dealing with here are scientific issues that involve workers, so they are, by definition, worker advocacy-oriented because we're dealing with exposures to workers. We think that our dose reconstructions, our technical basis documents, our SEC petition evaluations are scientifically balanced. We don't pay any attention to whether we're favoring one side or the other. We look at the science, and we want to make sure, through this process where we have a number of parties looking at it, that it is scientifically sound however it turns out.
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    Mr. HOSTETTLER. Thank you.

    Mr. Bertoni, what are the specific conflict roles that the GAO identified with respect to the NIOSH Advisory Board and its audit contractor as it pertains to the NIOSH compensation program officials?

    Mr. BERTONI. The prior work I had noted?

    Mr. HOSTETTLER. Yes.

    Mr. BERTONI. Yes. Essentially, the—I'll give you one example. The project officer who is essentially responsible for overseeing the contract was, in fact, in charge of the—the program under review at one point, so that was clearly, in our view, a conflict of interest that was—that was addressed. Also, I believe the contracting officer was also a member of—or charged with attending Advisory Board meetings—was also an—recording minutes and doing other functions for the Advisory Board—was also an officer or a manager in one of the programs under review. So that, again, was clearly a conflict that—ultimately, it was resolved, though.

    Mr. HOSTETTLER. So personnel changes were made.

    Are there any structural changes that you would suggest should be made in order to relieve the notion of conflict of interest?

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    Mr. BERTONI. To the Board or relative to our current work looking at NIOSH's oversight of the ORAU?

    Mr. HOSTETTLER. Well, either.

    Mr. BERTONI. I think the adjustments that were made to the board in its organization right now—we're not aware of any specific conflicts. We do have ongoing work that is going to look at what's in place now to at least provide for a reasonable amount of—to insulate the board from conflicts of interest and, beyond that, look at other options that one could take to strengthen the independence of the board and avoid conflicts of interest, and we have prior work where we've looked at in-depth analysis on at least nine other Advisory Boards, and it was at the broader review a couple years ago in 2004. We've actually documented best practices that you could take to strengthen conflict of interest and independence of Federal Advisory Boards, and that's going to be part of our criteria as we move forward and look at the relationship between NIOSH and the contractor ORAU.

    Mr. HOSTETTLER. Thank you.

    Does the Gentlelady from Texas have any further questions?

    Ms. JACKSON LEE. I do.

    Mr. HOSTETTLER. The Chair recognizes the gentlelady from Texas for 5 minutes.

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    Ms. JACKSON LEE. Thank you.

    Mr. Bertoni, let me follow up on the line of questions of the Chairman. How important is the transparency in the appointment of the members of the Advisory Board that makes recommendations on the ''special exposure cohort'' applications?

    Mr. BERTONI. As I just noted, we have a body of work that actually looks at the boards and committees, and we've come down on record to say that transparency is important not only in terms of the selection of board members, the identification of candidates, the vetting, the process of determining qualifications, their specific points of view. Transparency in that entire process as well as in their day-to-day operations can only serve to—at least from a public perception standpoint, to increase one's view of the integrity of that particular board. So there are—at the time of our last review where we looked at this, there were 900 similar boards. We drilled down on nine and essentially identified good practices, best practices that various boards do engage in to try to create situations where boards are perceived and actually do function very independently and with little conflicts of interest. So, throughout that—their deliberations and process, there should be transparency still; those looking in from the outside can be assured. You may not agree with the decision, but you at least are confident that—or are assured that the process, the integrity of the process, was there.

    Ms. JACKSON LEE. You just said something that may be—that may not be the jurisdiction or the agenda for this particular hearing, but you said there were 900 Advisory Boards about?

    Mr. BERTONI. Yes. At the time of our review, there were approximately 950, I think we cited in the report.
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    Ms. JACKSON LEE. And those boards are not subject to congressional confirmation; is that correct?

    Mr. BERTONI. Correct.

    Ms. JACKSON LEE. Most of them are not?

    What kind of—it's good to say ''transparency,'' and it's good to have the GAO, and you've been very effective, I think, in answering some of these concerns, but what kind of partnership with Congress would be effective? We have offered the suggestion of congressional appointment. There can be congressional reporting of the Advisory Board, names to Congress, but I really do think that we miss checks and balances, and that is an enormous component of Government. That's 900 Advisory Boards making, I believe, very important decisions, and what we've found with some difficulty is, of course, that we may be challenged as it relates to transparency. What kind of partnership do you think, prospectively, this whole contingent of Advisory Boards might be able to have with Congress?

    Mr. BERTONI. I'll preface this with the fact that we haven't really looked at 5840 and all the elements of it.

    Ms. JACKSON LEE. I understand.

    Mr. BERTONI. We are well aware. We have in place as one of the options we are considering as we look at other models for where you might move with strengthening the integrity—or the independence of an Advisory Board or in terms of developing its selections.
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    Ms. JACKSON LEE. A portion being appointed and a portion coming through the Congress?

    Mr. BERTONI. Correct. Yes.

    My general reaction to the selection process is I think it should be open. It should be open to several sources of nomination as he noted. There are—there are ways that certain boards get the word out that they are looking for nominees. They're going as far as publishing this in the Federal Register, but I think, right from the start, it should be a public process to announce we are looking for qualified members, opening it up to nominations from various sources, and there should be a public vetting and approval process and even right down to the point of looking at the prospective person's past statements, prior employment to get—to get a good sense of not only technical expertise but also their particular point of view, and I don't see any reason why Congress from its oversight standpoint can't request key information leading up to the selection of the board.

    Ms. JACKSON LEE. Sir, I think that's an excellent direction.

    Dr. Howard, without giving names, your present Advisory Board is how large?

    Dr. HOWARD. Right now, statutorily, I think there are six scientific members, three medical members and three worker reps. I believe that we're down one medical and one worker rep.
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    Ms. JACKSON LEE. And I think——

    Dr. HOWARD. He's nodding that I'm correct.

    Ms. JACKSON LEE. And your scientific members are academic or in companies?

    Dr. HOWARD. They can be a mixture of both. They usually have academic credentials. They may not be in an academic setting, but they tend to be academically oriented.

    Ms. JACKSON LEE. Do you agree with transparency along with the vigorous oversight or input that you've just articulated is clearly important, one, to protect the victims of this particular Advisory Board?

    Dr. HOWARD. Definitely. Transparency of the members of the Presidential Advisory Board is very critical because we're making the kind of decisions that the Chairman referred to where people can perceive them as biased, so it's extremely important that we be as transparent as possible.

    Ms. JACKSON LEE. So any attempt to help enhance that transparency, whether it's a congressional partnership or oversight, might be constructive?

    Dr. HOWARD. Well, I'll leave that to Congress, but certainly, from my perspective, we do everything possible at NIOSH to ensure that our processes of selection recommendation to the President and this Advisory Board is as transparent as possible, so that's certainly something that we have in common.
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    Ms. JACKSON LEE. Mr. Hallmark, let me just conclude by saying to you, you've presented a case of innocence, and we do appreciate, first of all, your presence here today. You can sense—sense some consternation with the process that we've had to pursue, but I would ask, as you've made your presentation, that you glean from this hearing the importance of this issue and the need to compensate victims fairly. NIOSH needs to be able to work effectively. Frankly, I think that the program is fractured by not including those subcontractors, but most of all, we want to hear that the Department of Labor will view its role in moving the compensation ball forward and not the role of containment—is that my understanding?—cost containment outside the ordinary business responsibilities that all agencies have. This program is a program that was set up to compensate, through the legal procedures that NIOSH has instigated, the victims.

    Mr. HALLMARK. Well, I would repeat that many of the documents and e-mails that are being discussed here today date back to a debate that was associated with the OMB memorandum of last fall, a year ago. Those documents, in effect, came to a close with the Administration determination not to proceed with any of the options that had been presented, so I think it's important to look at this from the perspective of time frames.

    One of the witnesses in the previous hearing talked about a memorandum that I had written in February, I believe it was, of 2006. That was—and suggested that that indicated that we were continuing to pursue a cost-cutting agenda. In fact, that memorandum was written before OMB issued its decision before this Committee and in other venues about not pursuing those options. So that's, in my view, past history. My testimony today talks about the fact that we are looking at the program to make sure it's fair and to make sure that we're compensating people and as quickly as we can, and as I'd repeat the notion that, in our review, for example, of the dose reconstruction reports that we get from the—from the NIOSH, we want to make sure they're right; 2,000 of those cases have been sent back for rework for various reasons, and almost 90 percent of those reworks were on cases where the NIOSH outcome was less than 50 percent and the individual was not going to get a benefit. We sent them back to give the individual another chance, and I believe in something like 350 of those cases, the individual ended up receiving the benefit.
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    That's what we're supposed to do. That's what we are doing on an ongoing and constant basis. We're not trying to stop claims. We're not trying to save money. We know that this program is very important, and we know that the benefits are mandatory benefits. So we decide after the inputs from NIOSH and other—and other sources that the claim is payable, and it will be paid, and that's—that's the best—that's the way this operation is supposed to work, and that is our goal. So we are—we are of like minds in that regard, I believe, and we proceed down the path to make sure the program is, in fact, honoring its promises.

    Ms. JACKSON LEE. So the era that we have passed through on this cost-containment memo is behind us at this juncture?

    Mr. HALLMARK. The only thing I'm stumbling on is the issue of a cost-containment memo. The OMB memo, which issued options which were at issue for a number of months, is behind us because the Administration/the Department of Labor are not proceeding with that set of options.

    Ms. JACKSON LEE. Thank you.

    I hope that we will get the solution, Mr. Chairman, for the victims. That is the only reason why the two of us are here and have been here for five hearings consistently, and I hope that you will continue your interest and advocacy, and I would hope that this would be—find its way to the top of the agenda for the 110th Congress. People are really, really in need, and I thank the witnesses, and I yield back.

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    Mr. HOSTETTLER. I thank the Gentlelady.

    I also want to thank the witnesses for your input and your addition to the record. It's been most helpful.

    I would advise the Subcommittee that all Members will have 2 legislative days to make additions to the record and that this Subcommittee will be making significant submissions to the public record. The business before the Subcommittee being now completed, we are, without objection, adjourned.

    [Whereupon, at 5:35 p.m., the Subcommittee was adjourned.]


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