[Federal Register: March 24, 2004 (Volume 69, Number 57)]
[Rules and Regulations]
[Page 13709-13712]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr04-1]
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Rules and Regulations
Federal Register
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[[Page 13709]]
DEPARTMENT OF ENERGY
10 CFR Part 852
RIN 1901-AB13
Guidelines for Physician Panel Determinations on Worker Requests
for Assistance in Filing for State Worker's Compensation Benefits;
Procedural Amendments
AGENCY: Department of Energy.
ACTION: Interim final rule; request for comment.
-----------------------------------------------------------------------
SUMMARY: In order to expedite the handling of applications submitted by
contractor employees or their survivors to the Department of Energy
(DOE) Office of Worker Advocacy for assistance in pursuing workers'
compensation under State law for illness or death arising from exposure
to toxic substances at a DOE workplace, DOE today publishes and makes
immediately effective certain procedural amendments. Today's procedural
amendments will help streamline the processing of applications
submitted to DOE under part D of the Energy Employees Occupational
Illness Compensation Program Act of 2000 (``EEOICPA''). The amendments
reduce from three to one the minimum number of physicians required for
an affirmative physician panel determination in most instances. To
ensure that the procedural amendments in today's rule accomplish their
purpose, DOE invites public comment on today's rule.
DATES: Effective Date: March 24, 2004. Comment Date: Comments are due
April 23, 2004.
ADDRESSES: You may submit comments, identified by RIN 1901-AB13, by any
of the following methods:
Electronic comments may be submitted at the Federal eRulemaking
Portal: http://www.regulations.gov.
E-mail comments may be submitted to: Judy.Keating@eh.doe.gov.
Comments may be mailed to: Judy Keating, Room 6B-128, U.S. Department
of Energy, Office of Worker Advocacy, EH-8, 1000 Independence Avenue,
SW., Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Judy Keating, U.S. Department of
Energy, Office of Worker Advocacy, EH-8, 1000 Independence Avenue, SW.,
Washington, DC 20585, (202) 586-7551, e-mail address:
Judy.Keating@eh.doe.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On August 14, 2002, DOE published a final rule implementing part D
of the Energy Employees Occupational Illness Compensation Program Act
of 2000 (``the Act'') (42 U.S.C. 7384, et seq.), Guidelines for
Physician Panel Determinations on Worker Requests for Assistance in
Filing for State Workers' Compensation Benefits, 67 FR 52841. The rule,
codified at 10 CFR part 852, sets forth procedures under which a DOE
contractor employee or an employee's estate or survivor may seek
assistance from the DOE Office of Worker Advocacy (``Program Office'')
in filing a claim with the appropriate State workers' compensation
system based on an illness or death that arose out of exposure to a
toxic substance during the course of employment at a DOE facility. The
rule also establishes the internal procedures to be followed by DOE in
processing and considering an application for assistance.
DOE has received more than 20,000 applications for assistance under
Part D of the Act. The Program Office conducts an initial screening of
the applications to identify applications that are not eligible for
assistance. An application must contain reasonable evidence that the
following three conditions are met. First, the application was filed by
or on behalf of a DOE contractor employee or the employee's estate or
survivor. Second, the illness or death of the DOE contractor employee
may have been caused by exposure to a toxic substance. Third, the
illness or death may have been related to employment at a DOE facility.
(See 67 FR at 52842-43, 52845).
Applications that pass the initial screening process are then
submitted to a case development and document acquisition process
whereby documents within DOE's control and relevant to the application
are acquired from DOE's facilities and contractors, the files are
organized, and a case summary is prepared. The complete application
package is then presented to a Physician Panel for review. Pursuant to
the terms of DOE's regulations, the Physician Panel reviews the package
and determines whether the illness or death arose out of and in the
course of employment by a DOE contractor and exposure to a toxic
substance at a DOE facility. The Physician Panel determination is then
forwarded to the Program Office.
Under DOE's regulations issued in August 2002, a Physician Panel is
composed of three physicians appointed by the Secretary of Health and
Human Services (``HHS''). The physicians are compensated at a rate not
exceeding the cap established by law in 42 U.S.C. 7385o(d)(2)(B).
Moreover, the Act requires that Physician Panel members have
occupational medicine experience and competency in diagnosing
occupational illnesses. (42 U.S.C. 7385o(d)(2)(A)). Only a small
percentage of licensed physicians have the experience and competency in
diagnosing occupational illnesses necessary to be qualified by HHS.
While HHS has qualified over 150 physicians, participation on panels by
qualified physicians is limited by the physicians' other professional
obligations and a reluctance to devote time to this program for a
number of reasons, including the compensation rate cap established by
the Act (42 U.S.C. 7385o(d)(2)(B)).
The Physician Panels' review process is labor intensive; each
physician is required to review all materials relating to the
application. All panel members meet in conference, in person or by
teleconference, in order to discuss the application and arrive at a
determination agreed to by a majority of the members of the panel.
Today's rule permits a Physician Panel to be composed of a single
qualified physician. Permitting single-physician panels will have the
immediate effect of increasing the number of panels available to review
completed applications. Single-physician panels will also simplify
logistics by largely eliminating the time expended in coordinating and
attending conferences, teleconferences, or meetings (though any panel
physician is still free to consult with other appointed
[[Page 13710]]
physicians, Office of Worker Advocacy physicians, or other competent
health care professionals, in accordance with DOE's regulations, to
discuss assigned applications).
Today's rule also requires that negative determinations issued by a
single-physician panel be reviewed independently by an additional
single-physician panel. If the second single-physician panel issues a
negative opinion, the Program Office accepts the two negative results.
If the second single-physician panel issues a positive opinion, the
case is reviewed independently by a third single-physician panel. The
Program Office accepts the opinion of the majority of the three single-
physician panels. Reexamination of an initial single-physician panel
negative opinion assures that no application will receive a final
negative determination based on the opinion of a single physician. DOE
believes the use of single-physician panels coupled with a
reexamination of single-physician panel negative determinations by
additional single-physician panels will significantly increase the
number of applications that can be reviewed by panels in a given time
frame, while at the same time ensuring that this procedural change does
not disadvantage applicants. Moreover, in DOE's experience, the usual
time frame for providing a panel determination has been less than 20
days from the time of receipt by the panel. In less frequent cases, the
rule would allow for the panels to request more time.
Today's rule amends Sec. 852.13 to shorten the time permitted for
a Physician Panel to make a determination and to submit the
determination to the Program Office. DOE believes that the increased
efficiencies of a single-physician panel will permit a more expeditious
review of the application.
Today's rule will apply to all applications processed under part D
of the EEOICPA. Cases that are presently being reviewed by three-
physician panels will proceed to a determination by the panels as
assigned. Cases assigned after the effective date of this rule will be
assigned to single-physician panels or three-physician as determined by
the Program Office.
II. Section by Section Analysis
The definition of ``Physician Panel'' is revised to permit a single
physician to constitute a ``panel'' for the purpose of determining
whether a death or illness arose out of and in the course of employment
by a DOE contractor and exposure to a toxic substance at a DOE facility
under Sec. 852.8. Previously, ``Physician Panel'' was defined as ``a
group of three physicians. * * *'' This formulation proved to be
burdensome, too resource-intensive and unnecessary for a thorough
review of applications for assistance. Analyzing an application for
assistance and issuing a determination under Sec. 852.8 can be
performed efficiently and thoroughly by a single physician. The
definition adopted today preserves DOE's discretion to convene three-
physician panels. Nevertheless, DOE contemplates that a single-
physician panel will be used in most instances in order to expedite
processing of the applications. DOE also has modified the definition of
``Physician Panel'' so that it more accurately describes the functions
of such panels.
Section 852.16 is amended by adding two new paragraphs (a) and (b)
that read as follows. ``(a) If a panel composed of a single physician
issues a negative determination, the negative determination is
considered an initial opinion and the Program Office must direct an
additional single-physician panel to review the application and issue
an independent opinion. If the second single-physician panel issues a
negative determination, the Program Offices considers the opinions as a
negative determination by the Physician Panel for purposes of Sec.
852.17(a) of this part. (b) If a second single-physician panel issues a
positive opinion, the Program Office must direct an additional single-
physician panel to review the application and issue an independent
opinion. The Program Office reviews the three opinions and considers
the majority of the three opinions as the determination by the
Physician Panel for purposes of Sec. 852.17(a) of this part.'' The
independent reviews must occur before the Program Office can accept a
negative determination under Sec. 852.17. The entire text of the
original Sec. 852.16 is unchanged, but has been redesignated as
paragraph (c).
Section 852.11(b) is amended by adding the phrase, ``If a Physician
Panel has more than one physician,'' to recognize that this paragraph
does not apply to a panel composed of a single physician. The rule
continues to allow Physician Panels to be composed of more than one
physician. DOE thus would retain the discretion to use multi-physician
panels should it decide do so. DOE might determine that particular
groups of applications or applications presenting a particular type of
alleged illness were appropriate for multi-physician panels. Or
experience might demonstrate that in certain circumstances single-
physician panels were less efficient than three-physician panels. The
rule preserves DOE's ability to use single-physician and multi-
physician panels in the most efficient, most fair way, based on DOE's
experience as this program progresses. If DOE uses panels composed of
more than one physician, the panels will continue to be required to
meet, discuss the application, and arrive at a determination agreed to
by a majority. However, a negative determination by panels composed of
more than one physician would not automatically be submitted for review
by additional physicians, as will be done with negative determinations
by panels composed of only one physician.
Section 852.13 sets a limit on the time that may elapse between the
submission of the completed application to the Physician Panel and the
submission of the panel's determination to the Program Office. Today's
rule adjusts the time for this action from 30 working days to 20
working days.
III. Regulatory Review
A. Review under Executive Order 12866
This regulatory action has been determined to be a ``significant
regulatory action'' under Executive Order 12866, Regulatory Planning
and Review. See 58 FR 51735 (October 4, 1993). Accordingly, today's
action was subject to review under the Executive Order by the Office of
Information and Regulatory Affairs (OIRA) of the Office of Management
and Budget.
B. Review Under the Paperwork Reduction Act
No new information collection requirements subject to the Paperwork
Reduction Act, 44 U.S.C. 501 et seq. are imposed by today's regulatory
action.
C. Review Under Executive Order 13132
Executive Order 13132, ``Federalism'' (64 FR 43255, August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. Agencies are required to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and carefully assess
the necessity for such actions. The Executive Order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications. On March 14, 2000, DOE
published a statement of policy
[[Page 13711]]
describing the intergovernmental consultation process it will follow in
the development of such regulations (65 FR 13735). DOE has examined
today's rule and has determined that it does not preempt State law and
does not have a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. No further action is required by Executive Order 13132.
D. Review Under the National Environmental Policy Act
DOE has concluded that today's rule falls into a class of actions
that would not individually or cumulatively have a significant impact
on the human environment, as determined by DOE's regulations
implementing the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.). Specifically, today's amendment to the Physician Panel
procedures is covered under the Categorical Exclusion for rulemakings
that are strictly procedural in paragraph A6 of appendix A to subpart
D, 10 CFR part 1021. Accordingly, neither an environmental assessment
nor an environmental impact statement is required.
E. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 requires each
agency to prepare a written assessment of the effects of any Federal
mandate in a proposed or final rule that may result in the expenditure
by State, local, and tribal governments and the private sector, of $100
million in any single year. DOE has determined that today's regulatory
action does not impose a Federal mandate on State, local, or tribal
governments or on the private sector.
F. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., directs
agencies to prepare a regulatory flexibility analysis whenever an
agency is required to publish a general notice of proposed rulemaking
for a rule. DOE has determined that today's rule is procedural and is
not subject to prior notice and opportunity for public comment. In
accordance with 5 U.S.C. 604(a), no regulatory flexibility analysis has
been prepared for today's rule.
G. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform'' (61 FR 4729, February 7, 1996), imposes on
Federal agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. Section 3(b) of Executive
Order 12988 specifically requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this rule meets the relevant standards of Executive
Order 12988.
H. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This rule would not have any impact on the autonomy or integrity of the
family as an institution. Accordingly, DOE has concluded that it is not
necessary to prepare a Family Policymaking Assessment.
I. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed
today's notice under the OMB and DOE guidelines and has concluded that
it is consistent with applicable policies in those guidelines.
J. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR
28355, May 22, 2001), requires Federal agencies to prepare and submit
to OIRA, a Statement of Energy Effects for any proposed significant
energy action. A ``significant energy action'' is defined as any action
by an agency that promulgated or is expected to lead to promulgation of
a final rule, and that: (1) Is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. Today's regulatory
action is not a significant energy action. Accordingly, DOE has not
prepared a Statement of Energy Effects.
K. Congressional Notification
As required by 5 U.S.C. 801, DOE will submit to Congress a report
regarding the issuance of today's rule. The report will state that it
has been determined that the rule is not a ``major rule'' as defined by
5 U.S.C. 804(2).
List of Subjects in 10 CFR Part 852
Administrative practice and procedure, Government contracts,
Hazardous substances, Workers' compensation.
Issued in Washington, DC, on March 17, 2004.
Robert G. Card,
Under Secretary for Energy, Science and Environment.
0
For the reasons set forth in the preamble, 10 CFR part 852 is amended
as follows:
PART 852--GUIDELINES FOR PHYSICIAN PANEL DETERMINATIONS ON WORKER
REQUESTS FOR ASSISTANCE IN FILING FOR STATE WORKER'S COMPENSATION
BENEFITS
0
1. The authority citation for part 852 continues to read as follows:
[[Page 13712]]
Authority: 42 U.S.C. 7384, et seq.; 42 U.S.C. 2201 and 7101, et
seq.; 50 U.S.C. 2401 et seq.
0
2. Section 852.2 is amended by revising the definition of the term
``Physician Panel'' to read as follows:
Sec. 852.2 What are the definitions of terms used in this part?
* * * * *
Physician panel means one or more physicians (as determined by the
Program Office), who are appointed by the Secretary of Health and Human
Services, pursuant to part D of the Act, to evaluate applications of
DOE contractor employees, under the procedures and requirements of this
part.
* * * * *
0
3. Section 852.11 is amended by revising paragraph (b) as follows:
Sec. 852.11 How is a Physician Panel to carry out its deliberations
and arrive at a determination?
* * * * *
(b) If a Physician Panel has more than one physician, all panel
members meet in conference, in person, or by teleconference in order to
discuss the application and arrive at a determination agreed to by a
majority of the members of the Physician Panel.
* * * * *
0
4. Section 852.13 is amended by revising paragraph (a) as follows:
Sec. 852.13 When must a Physician Panel issue its determination?
(a) A Physician Panel must submit its determination and findings to
the Program Office within 20 working days of the time that panel
member(s) have received the complete application for review from the
Program Office.
* * * * *
0
5. Section 852.16 is revised to read as follows:
Sec. 852.16 When may the Program Office ask a Physician Panel to
reexamine an application that has undergone prior Physician Panel
review?
(a) If a panel composed of a single physician issues a negative
determination, the negative determination is considered an initial
opinion and the Program Office must direct an additional single-
physician panel to review the application and issue an independent
opinion. If the second single-physician panel issues a negative
determination, the Program Offices considers the opinions as a negative
determination by the Physician Panel for purposes of Sec. 852.17(a) of
this part.
(b) If a second single-physician panel issues a positive opinion,
the Program Office must direct an additional single-physician panel to
review the application and issue an independent opinion. The Program
Office reviews the three opinions and considers the majority of the
three opinions as the determination by the Physician Panel for purposes
of Sec. 852.17(a) of this part.
(c) The Program Office may direct the original Physician Panel or a
different Physician Panel to reexamine an application that has
undergone prior Physician Panel review if:
(1) There is significant evidence contrary to the panel
determination;
(2) The Program Office obtains new information the consideration of
which would be reasonably likely to result in a different
determination;
(3) The Program Office becomes aware of a real or potential
conflict of interest of a member of the original panel in relation to
the application under review; or
(4) Reexamination is necessary to ensure consistency among panels.
[FR Doc. 04-6555 Filed 3-23-04; 8:45 am]
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