[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART III)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION,
BORDER SECURITY, AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JULY 20, 2006
__________
Serial No. 109-139
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
28-783 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Immigration, Border Security, and Claims
JOHN N. HOSTETTLER, Indiana, Chairman
STEVE KING, Iowa SHEILA JACKSON LEE, Texas
LOUIE GOHMERT, Texas HOWARD L. BERMAN, California
LAMAR SMITH, Texas ZOE LOFGREN, California
ELTON GALLEGLY, California LINDA T. SANCHEZ, California
BOB GOODLATTE, Virginia MAXINE WATERS, California
DANIEL E. LUNGREN, California MARTIN T. MEEHAN, Massachusetts
JEFF FLAKE, Arizona
BOB INGLIS, South Carolina
DARRELL ISSA, California
George Fishman, Chief Counsel
Art Arthur, Counsel
Allison Beach, Counsel
Cindy Blackston, Professional Staff
Nolan Rappaport, Minority Counsel
C O N T E N T S
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JULY 20, 2006
OPENING STATEMENT
Page
The Honorable John N. Hostettler, a Representative in Congress
from the State of Indiana, and Chairman, Subcommittee on
Immigration, Border Security, and Claims....................... 1
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Ranking Member, Subcommittee on
Immigration, Border Security, and Claims....................... 4
WITNESSES
Mr. Austin Smythe, Acting Deputy Director, Office of Management
and Budget
Oral Testimony................................................. 7
Prepared Statement............................................. 10
Mr. Lewis Wade, Ph.D., Senior Science Advisor, Special Assistant
to the Director, National Institute for Occupational Safety and
Health (NIOSH)
Oral Testimony................................................. 13
Prepared Statement............................................. 14
Ms. Denise Brock, Director and Founder, United Nuclear Weapons
Workers
Oral Testimony................................................. 15
Prepared Statement............................................. 19
APPENDIX
Material Submitted for the Hearing Record
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......................................................... 41
ENERGY EMPLOYEES OCCUPATIONAL ILLNESS COMPENSATION PROGRAM: ARE WE
FULFILLING THE PROMISE WE MADE TO THESE COLD WAR VETERANS WHEN WE
CREATED THIS PROGRAM? (PART III)
----------
THURSDAY, JULY 20, 2006
House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:13 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.
And we welcome the witnesses today. There has been a little
change in rotation here of our hearing, and if you could--thank
you for the attendance, and I apologize for the change in the
schedule.
Today's hearing is the third in a series of hearings the
Subcommittee is holding on the Energy Employees Occupational
Illness Compensation Program Act, or EEOICPA.
Just to refresh everybody's memory, the impetus for these
hearings was the receipt by the Subcommittee of an internal OMB
memo sent to the Department of Labor in late 2005.
The document outlined five policy options to be developed
by a White House-led interagency work group to reduce the
number of Special Exposure Cohorts, or SECs, as a way to
``contain the growth and benefit under the program,'' including
requiring Administration clearance of SEC petitions and
altering the composition of the Advisory Board on Radiation and
Worker Health.
Special Exposure Cohort status may be applied for and
received by sick workers whose radiation dose exposures cannot
be estimated adequately with existing records and who worked in
an area where it is reasonably likely that they were exposed to
enough dose to endanger their health.
If approved, workers in the cohort can receive benefits
under the program if they have one of 22 cancers. Prior to the
Subcommittee's first EEOICPA hearing on March 1, 2006, document
requests were made to the Department of Labor and the
Department of Health and Human Services in order to review
agency actions with regard to the passback memo on the program.
Until recently, those attempts at performing oversight have
been resisted and have added to the concern that these agencies
may not wish Congress to adequately execute our oversight
obligations.
In the interim, the Office of Management and Budget issued
letters to individual congressmen and senators concerning the
options outlined in the passback document.
While those communications provide general assurances that
there won't be any implementation of the passback items, there
is no mention of any steps that are planned to police the
program officials within the Administration whose agendas
include a reduction in the approval of SECs or mention of what
steps have been taken to reverse or rectify actions that have
occurred which mirror the principles contained in the passback.
For example, one of the OMB letters states, ``The
Administration will continue to meet the statutory requirement
that the advisory board reflect a balance of scientific,
medical and worker perspectives.''
Something can't continue when it is not already occurring.
At present, the 11-member board only has two worker
representatives. The math does not add up.
It is the Subcommittee's understanding that Presidential
personnel was provided with a group of suitable candidates for
appointment to the board but no action to supplement the lack
of worker representatives has been taken to meet the statutory
requirement for balance.
While the Subcommittee applauds OMB's general response that
it is ``not pursuing any program changes to modify benefit
costs'' or ``reduce the amount of SEC approvals in order to
minimize benefit costs,'' until significant steps are taken to
clarify the Administration's position, a cloud will remain over
this program and those implementing it.
It is encouraging that the Office of Management and Budget,
under the leadership of their new director, Rob Portman, is
providing a witness for our hearing today. A satisfactory
resolution of this controversy is a must in reinstating the
program's integrity.
There is an appearance that the document requests made over
4 months ago to the other agencies involved is being partially
addressed. Hopefully, the Department of Labor and Health and
Human Services' leadership will follow the lead of OMB and
thoroughly cooperate in providing documents in their possession
pertinent to the Subcommittee's oversight.
There has been a long-running discussion between the
Subcommittee and the Administration on what the limitations are
on the Administration providing information available to the
Committees with oversight over subject matter when suspect
actions are taken by executive branch officials with regard to
that subject matter.
Some within the Administration have, in the Subcommittee's
view and the view of legal experts, invoked protections
inappropriately. For example, in the response to follow-up
questions after our March 1 hearing, the DOL witness invoked
``internal budget discussions'' as the reason he couldn't say
who created the passback list or answer whether he himself had
created the list.
The budget process is over and can't be negatively affected
by divulging such information, so that protection is not
applicable.
It is unfortunate that no one is willing to be honest about
their actions and admit their error or supply their
justification for determining that groups of claimants seeking
SEC status are not worthy of certification.
The loss of this program's credibility in large part lays
at the feet of individuals at senior levels in the Labor
Department. Indications are that those officials have been
constantly sounding alarms that special cohort approvals were
going to open a floodgate of benefit costs.
When NIOSH and the advisory board initiated approval of an
SEC for the Mallinckrodt plant in St. Louis, it was asserted
that the precedent set by that approval would cause a flood of
similar SEC applications from sites throughout the weapons
complex, threaten the stability of Part B of the program and
possibly cause a $7 billion increase in program costs over 10
years.
Some of those officials, it appears, promoted the view that
HHS has, to some degree, let claimants, the advisory board and
political pressure control the SEC process. They have accused
the advisory board of becoming a worker advocacy organization
and making ``unwise'' decisions in approving SECs.
It appears no effort, however, is made to acknowledge or
challenge the real fact that NIOSH found few dose records were
available and that the integrity and validity of that data was
in serious doubt.
DOL has publicly asserted that they have no role in
determining whether SECs should be approved or not. The
evidence is strong, contrary to that assertion, that they are
heavily involved in the SEC process and apparently seek even
more involvement. Perhaps that is how the OMB passback contents
came to be in the first place.
DOL's constant hysteria campaign was conveyed to OMB and
thus the passback contained the tools for DOL to control SEC
decisions, the advisory board composition and the work of its
audit contractor.
The United States steps up and provides billions of dollars
without a blink when there is a natural disaster and people are
harmed throughout the world. We as a government are not to
blame for that natural disaster or that harm.
In this case, we as a government did the harm, knew we were
doing the harm and intentionally deceived people working to
protect this nation from harm.
How can any one of us, including the individuals within the
Administration tasked with carrying out the program, take the
position that these claimants are unworthy of our assistance?
Unlike assistance programs where millions of dollars are
paid out on fraudulent claims of harm, the claimants under this
program can't fake cancer. It is true that some of these
workers' cancer may not have been caused by their exposures.
But we all should remember that the chance that their
cancer may have been caused by their exposures is possible in
many cases only because of the Government's willingness to put
them in harm's way to manipulating the record of their
exposures or outright deceit about the safety of their
workplace.
Having lost my mom and dad to cancer, at least I am assured
that these workers did not acquire that dreaded disease in an
attempt to scam the program.
We as a government are to blame. And unlike some involved
in this program, we should step up and take responsibility for
what has happened with integrity and purpose. Pinching pennies
never looked so inappropriate as it does when addressing the
plight of these workers.
Those who have made it their mission to use any method
possible to justify denial of assistance to these workers
should be ashamed of themselves.
We should ensure this program works as it should in
acknowledging the harm this Government potentially caused these
workers without their knowledge so as a Government we can take
pride at least in that acknowledgment.
Hopefully the witnesses today will help us take steps
toward reaching that goal.
At this time, the Chair recognizes the gentlelady from
Texas, Ms. Jackson Lee, for purposes of an opening statement.
Ms. Jackson Lee. Let me thank you so very much, Mr.
Chairman, and I think your remarks are pointed, that we do
believe that promises have been broken and promises now need to
be kept.
And I would like to just introduce victims who are not in
the room to the American public by suggesting that these brave
Americans who were engaged in nuclear facilities in the 1940's
and 1950's and later were, in fact, there to protect America.
It disappoints me, Mr. Chairman, that we have come to this
place where victims are fighting for protection. From the
Manhattan Project to the present, tens of thousands of workers
have been employed to develop, build and test nuclear weapons
for the Department of Energy and its predecessor, the Atomic
Energy Commission.
The Energy Employees Occupational Illness Compensation
Program Act of 2000 provides compensation if they have
contracted a radiation-related cancer, beryllium disease,
silicosis from employment-related exposure to radiation. They
may be eligible for a lump-sum payment of $150,000 and
prospective medical benefits. Fair enough.
But yet some have been denied and the Administration is
rumored to be trying to change the formula so that many might
be denied. In processing radiation-related cancer claims, the
Department of Health and Human Services, acting through the
National Institute for Occupational Safety and Health, NIOSH is
required to estimate a worker's exposure to radiation which is
referred to as a radiation dose.
Sometimes this is not possible. During the early years of
the nuclear weapons program, some of the workers were not
monitored for radiation exposure and records have been lost,
destroyed or altered. We understand. People worked. People were
dedicated. Record keeping was not that effective. The Internet
didn't work then.
The act provides a remedy for cases in which it is not
feasible to estimate a radiation dose but it is clear that the
health of the workers may have been endangered by radiation
exposure. Workers facing the situation may petition to be
administratively designated as members of a special exposure
cohort which provides an unrebuttable presumption that certain
cancers are related.
Members of a special exposure cohort may be eligible for
benefits if they have had one of 22 specified radio-sensitive
cancers and they have worked at a covered facility for at least
1 year in a job that exposed them to radiation.
Petitions for a special exposure cohort designation are
evaluated by NIOSH. NIOSH's recommendation is reviewed by the
Advisory Board on Radiation and Worker Health, and then the
petition is sent to HHS for a decision.
In a recent memorandum to the Department of Labor which is
referred to as an Office of Management and Budget passback, OMB
commends the Employment Standards Administration for
identifying the potential for a large expansion of the EEOICPA
benefits through the designation of Special Exposure Cohorts.
OMB states that the Administration will convene a White
House-led interagency work group to develop options for
administrative procedures to contain growth in the cost of
benefits provided by the program, which include discussions of
the following options.
Mr. Chairman, we do not need cost containment programs.
Denise Brock's father did not need cost containment programs
when he worked and then he lost his life. Citizens in my home
State of Texas City who worked with subcontractors don't need
cost containment programs. They need relief.
And Channel 11 KHOU interviewed hundreds of workers who
seemingly had been forgotten. I discovered that brave Americans
were not being protected by the American Government.
The options require Administration clearance of Special
Exposure Cohort determinations, address any imbalance in the
membership of the advisory board, require an expedited review
by outside experts of NIOSH's recommendations, require NIOSH to
apply conflict of interest rules and constraints to the
advisory board contractors, and requires NIOSH to demonstrate
that its site profiles and other dose reconstruction guidance
are balanced.
Notwithstanding that the memorandum--the director of the
Department of Labor's compensation program testified at a
recent hearing before this Subcommittee that the cost
containment is not a factor in deciding which claim to pay.
This did not eliminate my concern that OMB's recommendation
will be implemented and that they will have an adverse effect
on the independence of the process for evaluating Special
Exposure Cohort petitions. The process has worked. We just need
to make sure that it continues to work.
Because of that, Mr. Chairman, I have introduced a bill to
address this problem, the Energy Employees Occupational Illness
Compensation Program Improvement Act of 2006, and I really look
forward to this Committee working together to generate
bipartisan response.
Particularly this bill adds the subcontractors represented
by those in Texas City who have been left out and left alone.
Among other things, it would shift the authority for making
advisory board appointments to the Congress.
It would require the HHS Secretary to abide by the
recommendations of the advisory board unless there is a clear
error and would establish enforceable conflict of interest
requirements with respect to NIOSH's dose reconstruction
contractors.
And it would eliminate the unfairness by making benefits
available to some subcontract employees who work at atomic
weapon employer facilities that presently are not covered by
the act.
Mr. Chairman, this is a very important hearing. I want to
thank you for your interest. And I do want to acknowledge that
some categories of subcontractors may be covered, but not all.
Let this be an opportunity, Mr. Chairman, to really raise the
umbrella of the American safety net, the love and affection we
have for the American people.
I would also like to thank Nolan Rappaport on my staff for
his commitment and energy behind this legislation.
And, Mr. Chairman, I understand it seems that there may be
votes. I just wanted to put on the record that if I depart I
have an family emergency at home with one of my children who is
in need of medical emergency. And so if I am not returning, I
apologize and will work with you, Mr. Chairman, for that. Thank
you.
Mr. Hostettler. I look forward to working with the
gentlelady, and we will be remembering you and your son in our
prayers.
We have been called to votes, and so I ask for the
indulgence of the panel. The Subcommittee will reconvene
immediately after the conclusion of the votes in the House. And
so therefore, we are recessed without objection.
[Recess.]
Mr. Hostettler. The Subcommittee will come to order. We
will now turn to our introductions of the witnesses.
Austin Smythe is currently acting in the position of Deputy
Director and is the Executive Associate Director at the Office
of Management and Budget.
In this senior role, Mr. Smythe assists the OMB director in
the development of the budget and other management functions.
Prior to joining OMB, Mr. Smythe served as a vice president in
Lehman Brothers' Washington, D.C. office for a year and a half.
He monitored and analyzed appropriations, budget, energy,
natural resources and tax issues for the firm's equity research
division.
From 1983 to 1999, Mr. Smythe served on the staff of the
Senate Budget Committee under the chairmanship of Senator Pete
Domenici. As assistant staff director, he played a key role in
the development and implementation of the annual Federal
budget.
Lewis Wade is Senior Science Advisor and Special Assistant
to the Director at the National Institute for Occupational
Safety and Health, or NIOSH.
He serves as the designated Federal official for the
Advisory Board for Radiation and Worker Health, or the board,
and the technical project officer for the board's contract with
Sanford Cohen & Associates for technical support.
Dr. Wade's previous role at NIOSH was the Associate
Director for Mining. Prior to NIOSH he worked at the Bureau of
Mines, the Department of Energy and the United States Geologic
Society. Dr. Wade received his Ph.D. in civil engineering at
Carnegie Mellon University.
Denise Brock is the founder and director of the United
Nuclear Weapons Workers and is a workers advocate consultant to
attorneys regarding EEOICPA.
Ms. Brock's father worked at the Mallinckrodt facility from
1945 to 1958. He was diagnosed with an oat-cell carcinoma of
the lung that was later metastatic to the brain and liver. He
passed away when Ms. Brock was still quite young.
Ms. Brock took a keen interest in EEOICPA early in the
program, filing a claim on her 78-year-old mother's behalf in
July 2001. Finding the claims process a frustrating and arduous
task, Ms. Brock resolved to help other nuclear workers and
their families deal with the program.
Her mother eventually became the first person compensated
in the Mallinckrodt cases.
Members of the panel, will you please stand and take the
oath, which is the custom of our Subcommittee and Committee?
Will you raise your right hand?
Do you swear that the testimony you are about to give
before this Subcommittee will be the truth, the whole truth and
nothing but the truth, so help you God?
Thank you very much. And please be seated.
The record will reflect that the witnesses answered in the
affirmative.
Mr. Smythe, thank you for being here today.
And without objection, all of your written testimonies will
be made a part of the record, and you will see that there is a
series of lights in front of you. And if you could summarize
within 5 minutes it would be greatly appreciated.
Mr. Smythe?
TESTIMONY OF AUSTIN SMYTHE, ACTING DEPUTY DIRECTOR, OFFICE OF
MANAGEMENT AND BUDGET
Mr. Smythe. Mr. Chairman, Members of the Subcommittee, my
name is Austin Smythe, and I am the Acting Deputy Director of
OMB. At the request of the Subcommittee, I am appearing before
you today to discuss the Energy Employees Occupational Illness
Compensation Program Act, EEOICPA.
As the Director wrote in his recent correspondence to the
Members of the Congress, the Administration deeply appreciates
the sacrifices that workers across the nation have made in
building the nation's nuclear defense.
We are committed to ensuring that all workers who are
entitled to benefits under this program receive their full
benefits in accordance with the law.
As a multiagency program, EEOICPA requires coordination
among its partner agencies--the Department of Justice, Labor,
Energy and Health and Human Services--to make sure the program
operates as intended and assists claimants as efficiently as
possible.
OMB does not have an operational role in this program but
does carry out its responsibilities within the framework of the
responsibilities of each agency as designated by statute,
regulation and Executive Order 13179. OMB has performed this
role since the program was enacted in 2000.
Since the program began paying benefits in 2001, EEOICPA
has paid more than $2 billion to 23,000 claimants. I understand
the Subcommittee is concerned about what it believes are
Administration plans to change the EEOICPA program structure or
cut benefits to workers and their survivors.
The Director has written to Members of Congress on this
issue, and I submitted with my written testimony a copy of one
such letter.
As the Director has clearly stated in this letter, the
Administration is not pursuing any program changes to contain
the cost of EEOICPA benefits and is not instituting a White
House-led EEOICPA-related interagency work group or any new
internal procedures concerning the Advisory Board on Radiation
and Worker Health.
In addition, no steps are being taken by the Administration
to reduce the amount of Special Exposure Cohort petition
approvals in order to minimize benefit payments.
The Administration is working to provide workers with the
benefits legally provided in that act in a timely and fair
manner and to ensure that all agencies comply with the law as
it was written by the Congress and signed into law by the
President.
I also want to address specifically the concern that the
2007 budget reflects an expected reduction in approval of SEC
petitions. This is not the case. As you know, EEOICPA benefits
are an entitlement. We have no budget policy proposals to
reduce or otherwise modify these benefits.
Under current law, the Administration is obligated to make
these benefit payments. Like other entitlement programs, we are
required to estimate the outlays from this entitlement program
to determine overall spending levels.
As a result, the budget presents the Administration's best
estimates of program cost based on anticipated claims
processing under current law. The budget does not impose a
ceiling on these benefit payments, nor does it anticipate
changes to the SEC process or reflect future HHS actions on
pending SEC petitions.
The Subcommittee has also expressed a concern about policy
options being used to reduce EEOICPA Part B benefits by
limiting the designation of additional SEC classes. Executive
Order 13179 delegates the President's responsibility for SEC
decisions to the Secretary of HHS.
By law, the advisory board provides recommendations to the
Secretary on these petitions and also reviews dose
reconstructions to ensure their scientific validity and
quality.
The Administration does not intend to take any action to
change this arrangement, nor does it intend to pre-clear SEC
determinations. These approvals will be made fairly and in
accordance with program procedures, guidelines, regulations and
the law.
As it has done in the past, the Administration will provide
public notice of the regulations and formal procedures issued
with respect to this program. And any regulations will follow
the notice and comment procedures of the Administrative
Procedure Act.
In conclusion, the Administration will continue to
faithfully out EEOICPA to provide for timely, uniform and
entitled compensation of covered employees and, where
applicable, their survivors, suffering from illnesses incurred
by such employees in the performance of their duties.
The Administration also will continue to ensure that
scientific determinations and the law govern the provision of
compensation under this program and will not use budgetary
concerns to override those determinations.
With that, Mr. Chairman, I would be happy to answer any
questions the Subcommittee may have.
[The prepared statement of Mr. Smythe follows:]
Prepared Statement of Austin Smythe
ATTACHMENT
Mr. Hostettler. Thank you, Mr. Smythe.
The Chair now recognizes Dr. Wade for 5 minutes.
TESTIMONY OF LEWIS WADE, PH.D., SENIOR SCIENCE ADVISOR, SPECIAL
ASSISTANT TO THE DIRECTOR, NATIONAL INSTITUTE FOR OCCUPATIONAL
SAFETY AND HEALTH (NIOSH)
Mr. Wade. Mr. Chairman and Members of the Subcommittee, my
name is Lewis Wade, and I am the Senior Science Advisor at the
National Institute for Occupational Safety and Health, or
NIOSH. NIOSH is part of the Centers for Disease Control and
Prevention within the Department of Health and Human Services.
I bring you warm regards from Dr. John Howard, the NIOSH
Director.
I am pleased to appear before you today to provide an
update on the status of HHS activities under the Energy
Employees Occupational Illness Compensation Program Act of
2000. I consider the work that HHS does in support of the act
to be tremendously important.
In fact, in my 30-plus years of Federal service, I have
worked on few things as important as my work on this program.
The role of HHS in this program is to focus on the science
of doing dose reconstruction and SEC petitions. Other areas of
the program, such as processing of claims or payment of claims,
are the responsibility of the Department of Labor, which has
the lead responsibility for administering this act.
Let me briefly update you on the progress NIOSH has made to
date. In October 2001, NIOSH received from the Department of
Labor the first cases for dose reconstruction. To date, NIOSH
has returned 14,000 cases to the Department of Labor with
completed dose reconstructions. That represents about two-
thirds of the cases that have been referred to NIOSH by the
Department of Labor.
NIOSH leadership, personally led by Dr. John Howard, has
focused significant attention on processing dose
reconstructions in timely and quality manners. In addition, six
classes of workers have been added to the Special Exposure
Cohort to date, with another two just about to be added.
At the June meeting of the advisory board, the Department
of Labor reported that almost one-half $1 billion has been paid
to claimants through completed dose reconstructions or as
members of an SEC class. This is as the result of NIOSH's work.
Fourteen thousand completed dose reconstructions, and
almost a half billion dollars to claimants--NIOSH is proud of
the work that it has done to implement the act. However, we are
aware of and understand the concerns of claimants that it takes
NIOSH too long to act upon their cases or SEC petitions.
And we as an agency are committed to continuing to improve
our processes to address these concerns.
Let me briefly turn to the work of the advisory board. The
advisory board focuses on the scientific detail that is
necessary to oversee such a program, and it makes use of
vigorous peer review in the accomplishment of its work.
Anyone who has attended a board meeting understands the
high level of detail that the board brings to its work. As you
know, the board schedules its meetings in close geographic
proximity to the workers likely to be impacted by the current
work of the board.
Through public comment sessions at these meetings, the
board hears firsthand from claimants about their concerns and
their frustrations with the program. The board is constantly
hearing from a wide variety of involved parties about those
parties particular interest in the board's work.
However, I personally have observed that the board's
decisions have been driven by the scientific consideration of
information before the board.
As evidence of the independence of the board's work in the
area of SEC petitions, for example, the board has taken actions
consistent with as well as taken actions contrary to the
recommendations of NIOSH.
As evidence of the quality of the board's work, the
Secretary of HHS has followed board recommendations on SEC
petitions in all cases but one, and that involved a
circumstantial change in the case following the board's action
and before the Secretary's action.
In summary, NIOSH has made significant progress in the 6
years since the inception of this program. However, we
recognize that there are still many former energy workers, or
in many cases their spouses or children, who are awaiting final
decisions on claims, and we are committed to continue to work
to improve the program to better serve them and honor their
service to the country.
Thank you again personally for the opportunity to testify,
and I would be happy to answer questions.
[The prepared statement of Mr. Wade follows:]
Prepared Statement of Lewis Wade
Mr. Chairman and Members of the Subcommittee, my name is Lewis Wade
and I am the Senior Science Advisor at 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 bring you warm regards from Dr. John Howard, the
Director of NIOSH, who had the opportunity to appear before this
Subcommittee in March. My duties at NIOSH include serving as the
Designated Federal Official for the Advisory Board on Radiation and
Worker Health (``the Board''). In that capacity, I represent the
Secretary of HHS on the Board and have the responsibility of overseeing
the Board's work to ensure that it meets the needs of the Secretary. I
also serve as the Technical Project Officer on the contract with
Sanford Cohen and Associates (SC&A), which provides scientific and
technical support to the Board on a range of topics, including review
of individual dose reconstructions and site profiles and providing
recommendations on adding classes of employees to the Special Exposure
Cohort (SEC).
I am pleased to appear before you today to provide an update on the
status of HHS activities under the Energy Employees Occupational
Illness Compensation Program Act of 2000 (``EEOICPA'' or ``the Act'').
I consider the work that NIOSH does in support of the Act to be
tremendously important. The role of HHS in this program is to focus on
the science of doing dose reconstructions and the related issue of
considering and deciding petitions from classes of employees wishing to
be added to the SEC. HHS also developed the probability of causation
guidelines that are used by the Department of Labor (DOL) in
adjudicating claims for compensation. Other areas of this program
(e.g., processing and payment of claims) are under the purview of DOL,
which has lead responsibility for administering EEOICPA. Let me briefly
update you on the progress NIOSH has made to date.
In October 2001, NIOSH received from DOL the first cases for dose
reconstruction. To date, NIOSH has returned 14,511 cases to DOL with
completed dose reconstructions or for handling under the SEC
presumptive rules. That represents 66 percent of the 21,988 dose
reconstruction cases that have been referred to NIOSH by DOL. NIOSH
leadership has focused significant attention on processing dose
reconstructions in a timely manner, and by aggressively and proactively
managing the process we have improved from processing an average of 100
dose reconstructions per week in 2004 to an average of 160 per week
thus far in 2006. Six classes of workers have been added to the SEC to
date. Two additional classes recently have been approved by the
Secretary for addition to the SEC--they were sent to Congress on June
26, 2006 and will be effective on July 26 unless Congress determines
otherwise. At the June meeting of the Advisory Board, DOL reported that
the SEC classes approved by that date had led to compensation for 468
cases. Overall, DOL reported that more than $472 million has been paid
to claimants with completed dose reconstructions or who are members of
an SEC class.
The accomplishments are significant especially in light of the fact
that of the 325 facilities covered by EEOICPA, many are unique and
require a significant amount of time and effort to obtain the
information and records--sometimes over 60 years old--necessary to
conduct dose reconstructions. We have received claims for 190 of these
covered facilities, and of these, NIOSH has completed 80 percent or
more of the dose reconstructions for 38 facilities. This includes 14
facilities for which NIOSH has completed 100 percent of the dose
reconstructions for the cases received from DOL.
NIOSH is proud of the work it has done to implement EEOICPA.
However, we are aware of and understand the concerns of some claimants
that it takes NIOSH too long to act upon their cases and SEC petitions,
and we as an agency are committed to continuing to improve our
processes to address these concerns.
Let me turn briefly to the work of the Advisory Board. The Board
focuses on the scientific detail that is necessary to oversee such a
program; and it makes use of rigorous peer review in the accomplishment
of its work. Anyone who has attended a Board meeting understands the
high level of detail that the Board brings to its work. To give you a
sense of the Board's involvement in the program, between now and the
end of the fiscal year, there are scheduled two Board meetings and four
Working Group meetings on issues including site profile reviews, SEC
petition reviews, and review of our conflict of interest policy.
As you know, the Board schedules its meetings in close geographic
proximity to the workers likely to be impacted by the current work of
the Board. Through public comment sessions at these meetings, the Board
hears first-hand from claimants about their concerns and frustrations
with the program. The Board often finds itself under intense pressure
from claimants and their advocates. However, NIOSH has observed that
the Board's decisions have been driven by the information before it. In
the area of SEC petitions, for example, while the Board has taken
actions consistent with NIOSH recommendations to add or deny adding a
class, the Board also has taken a position contrary to a NIOSH
recommendation to deny adding a class. With one exception, the
decisions of the Secretary of HHS have been consistent with all of the
Board's recommendations on SEC petitions (the exception being when the
Board's recommendation on a facility was followed by a decision by the
Department of Energy to remove the facility from the list of covered
facilities, thus precluding a Secretarial decision on the petition).
In summary, NIOSH has made significant progress in the six years
since the inception of this program in performing the important duties
with which it has been charged. However, we recognize that there are
still many former energy workers, or in many cases their spouses or
children, who are awaiting final decisions on their claims, and we are
committed to continuing to work to improve the program to serve them
better and honor their service to our country.
Thank you again for the opportunity to testify. I would be happy to
answer any questions you may have.
Mr. Hostettler. Thank you, Dr. Wade.
Ms. Brock?
TESTIMONY OF DENISE BROCK, DIRECTOR AND FOUNDER, UNITED NUCLEAR
WEAPONS WORKERS
Ms. Brock. My name is Denise Brock, and I am the founder
and Director of the United Nuclear Weapons Workers in St.
Louis, Missouri. I would like to thank you for the opportunity
to appear before you today.
My father, Christopher Davis, worked for Mallinckrodt
Chemical Works in St. Louis from 1945 until 1958. Mallinckrodt
was processing an African ore. It was called Belgian Congo
pitchblende. Workers were receiving radiation doses in excess
of 1,000 rem to the lung. Today, the maximum allowable dose is
five rem per year to the whole body.
When I was about 7 years old, my father was diagnosed with
lung cancer that later went to the brain and the liver. Some
years later he also was diagnosed with a second primary of
leukemia and passed away when I was quite young.
My statement today will relay my experience as a lead
petitioner for a Special Exposure Cohort for the Mallinckrodt
employees, which cover the years of 1942 through 1957.
I am aware of the OMB passback memo that was the focus of
the March 1st, 2006 hearing before this Subcommittee. I am
concerned that the policies outlined in that memo are designed
to prevent deserving workers from receiving benefits when there
are inadequate records to reconstruct radiation dose.
I testify here today as an advocate for claimants, workers
and for survivors of former workers. I am not a doctor nor a
health physicist nor a Government scientist. I am just a
regular person who witnessed firsthand the nearly
insurmountable hurdles that ordinary people must endure just to
make it through the claims process.
I am a person who has stood by countless bedsides as
workers and survivors alike died while waiting for
compensation. I am a person who knows quite well that without
the remedy of a Special Exposure Cohort and a balanced advisory
board, too many deserving claimants with inadequate dose
records will be wrongly denied.
In July of 2001, I filed a claim on my mother's behalf.
After months of no movement, I began to call meetings, conduct
research and videotape workers.
I learned that not one Mallinckrodt claim had been paid nor
at that point even dose reconstructed, so I filed FOIA requests
and gained access to private archives which yielded thousands
of internal company and Government memos and documents.
I was astounded and in utter disbelief at the appalling and
horrific conditions that these employees worked in. Some were
excreting milligram quantities of uranium per day in their
urine and some were showing signs of kidney failure.
The AEC and Mallinckrodt management both saw this as an
opportunity for studying the effects of radiation on workers,
although simultaneously wary of the liability to the Government
and contractor.
There were memos indicating scant if nonexistent monitoring
data for the earlier years, documents that questioned the
reliability of the exposure data, and there was no individual
employee monitoring for actinium, thorium or protactinium.
In October 2003, my mother's claim was dose reconstructed
and a positive finding was rendered. I felt deeply that
although we were greatly blessed with this decision, in light
of what I had found I owed it to my father's co-workers to
continue to help them. And I also promised God that it would
help these workers.
In July of 2004, I filed an SEC petition for the period of
1942 through 1957 at Mallinckrodt St. Louis plant. NIOSH broke
this petition into three parts because they intended to
recommend approval for certain years and denial of others.
In February 2005--I am sorry, at the same February 2005
meeting, NIOSH recommended that the board deny the SEC for the
1949 to 1957 time frame. I apologize, I missed one.
In February 2005, NIOSH recommended a partial approval of
the SEC covering the 1942 to 1948 time frame. The advisory
board concurred in a March 11th, 2005 letter to Secretary
Michael Leavitt.
At that same February 2005 meeting, NIOSH recommended that
the board deny the SEC for the 1949 to 1957 time frame.
However, the board did not vote on NIOSH's recommendation for
this time period for several reasons.
First, the board and myself were told that NIOSH had just
found five to six additional boxes of monitoring records that
covered the post-1949 time frame.
Second, NIOSH stated that the audit contractor's review of
the Mallinckrodt site profile was now obsolete, because NIOSH
had already developed a revised site profile. The board wanted
an up-to-date audit on NIOSH's most recent site profile.
Thirdly, NIOSH announced to us in the midst of
deliberations that they had just obtained a 33-page memo which
they asserted would indicate that records that had been
previously believed to be missing, destroyed or unreliable were
now presumed found, preserved and transferred.
The board, as well as myself, demanded to see this memo. It
later turned out that the memo had been available to NIOSH for
months and that claims NIOSH made regarding this memo were
exaggerated.
This seemed to me to be a tactic of sandbagging and to
defeat the SEC petition for the latter years. The February
meeting was, as it turned out, just the beginning of a board
review lasting 6 months.
The board examined the fact that there was no monitoring
data for the most radio-toxic substances at that plant.
Finally, on August 27th, 2005, the board met in St. Louis.
After 2 years of work on the Mallinckrodt site profile, 6
months of advisory board deliberation, four separate audit
reports, four board meetings, four Subcommittee or working
group meetings and numerous conference calls, memos and
hundreds of hours spent by NIOSH, SCNA, the advisory board
members as well as myself, new data continued to emerge, even
as late as the day of the advisory board meeting.
The board voted 6-4 to recommend approval for the SEC from
1949 to 1957, noting that a certain point of a decision had to
be made with data in hand and not what might be developed in
the future.
As I look back, I realized how difficult this process is
for a layperson. New data was constantly being discovered. They
were changing technical approaches and modified evaluation
reports. It was like shooting at a moving target.
Without a balanced advisory board and an audit contractor
with unimpeachable scientific integrity, our SEC would have
never received a fair hearing. We also had a dedicated support
from the Missouri congressional delegation, especially Senator
Kit Bond, who spoke at three board meetings and whose staff
reviewed every document.
Without a powerful legislator pushing back on our behalf, I
fear that we would have been undermined by those who wanted to
defeat this Special Exposure Cohort.
Mr. Hostettler. Ms. Brock, could you summarize, as time has
expired?
Ms. Brock. I can. This is the last one.
Mr. Hostettler. Okay.
Ms. Brock. The entire process requires an enormous amount
of effort even from the very beginning, and as a petitioner I
was already at an automatic disadvantage.
I was up against others who had enormous resources at their
command to defend their view. They brought to the table their
own biases, and it is just a terribly difficult process.
And I thank you for the time, and I would be happy to
answer any questions.
[The prepared statement of Ms. Brock follows:]
Prepared Statement of Denise Brock
Mr. Hostettler. Thank you.
At this time, the Chair, with unanimous consent, recognizes
the gentlelady from Texas, Ms. Jackson Lee, for purposes of
questioning.
Ms. Jackson Lee. Mr. Chairman, thank you very much, and I
will have to be brief.
But, Ms. Brock, your statement, ``the complexity is
overpowering and overwhelming''--and it confirms that we must
have a fix.
My simple question to you, Mr. Smythe, is a yes or a no,
and that is I heard the details that OMB had not planned or was
not engaged in changes. Can you affirm, confirm in writing,
that the Administration is not in the process of looking for
cost containment and therefore, if you will, through that
process inhibiting this normal flow of petitions by the special
cohorts?
Mr. Smythe. I am sorry, I didn't understand, course
containment?
Ms. Jackson Lee. Cost containment.
Mr. Smythe. We are not making any changes to achieve cost
containment.
Ms. Jackson Lee. Thank you.
Ms. Brock, it is a question of including everyone, frankly,
and the legislation that we have authored includes the atomic
workers. My question, is that a good thing to do, to include
those who likewise were not able to document their particular
exposure because they happened to be subcontractors?
Ms. Brock. It is a tremendous thing, and I am very excited
about that. It is just a matter of equity. And I am very
pleased.
Ms. Jackson Lee. Let me, first of all, express my sympathy
for your father. But your detailed explanation will give us a
road map to be more effective. And I believe this Committee, as
you have determined, is sincere.
And I believe that as the evidence is put forward--and I
know there will be more detailed questions for you, Mr.
Smythe--that we will find a way to ensure that cost containment
is not going to determine who receives benefits under this
regulation.
And I hope the legislation will help clarify it and help
continue to provide relief to those who need to provide relief.
I yield back to the Chairman.
Mr. Hostettler. I thank the gentlelady.
At this time, I have questions for the panel.
First of all, Mr. Smythe, there are five options to control
the cost of benefits under EEOICPA suggested in the passback. I
would like to review the OMB's position on each of the five
options outlined therein, so I have a series of questions.
Will there be any Administration clearance of SECs?
Mr. Smythe. No.
Mr. Hostettler. Has the Administration reviewed the balance
of the advisory board in the past 7 months since the passback
was developed?
Mr. Smythe. By balance, do you mean the membership?
Mr. Hostettler. Yes. Yes, I am sorry.
Mr. Smythe. I really can't speak to the membership of the
board. That is not something that OMB has a role in.
I can say that as Director Portman wrote to Members of
Congress on this issue that the Administration is committed to
maintaining the statutory requirement of a balance of
scientific, medical and worker perspectives on the board.
Mr. Hostettler. Thank you. Has OMB made presidential
personnel aware of the contents of the passback?
Mr. Smythe. I don't know the answer to that. I think it is
probably useful if I could take a minute to describe what a
passback is.
Mr. Hostettler. Sure.
Mr. Smythe. I think there has been a great deal of
confusion about what is going on here and a misunderstanding
that we are trying to clarify. First of all, a passback is not
the Administration's policy. It is not the President's budget,
not the President's policy, not the Administration's policy.
A passback, just to give the Subcommittee some background--
there is a process that we use to put together the budget. That
process begins in September when the agencies submit to us
their proposals, all of their proposals in terms of what they
want to do in the budget.
We review those proposals in the October time frame, and
some time usually in late November we pass back our proposals
back to them. It doesn't represent the--the agency's
submissions to us don't represent Administration policy and our
passbacks back to them does not represent Administration
policy.
This is a very rigorous process where we go through various
options and so forth. In this instance, none of these options
were accepted in terms of what the President's ultimate policy
was and what was in the President's budget.
So we are not pursuing any of these items that were listed.
It was inappropriately leaked. It has now been inappropriately
characterized as Administration policy, which it is not.
Our policy is to implement EEOICPA and to make sure that it
is implemented pursuant to the law and that sick workers get
their full entitled benefits in a timely manner.
Mr. Hostettler. Right. And I appreciate that description,
and as you have just said that none of the issues in the
passback have been implemented by the Administration, is that--
that is true----
Mr. Smythe. That is correct.
Mr. Hostettler [continuing]. That you have just mentioned?
And you could understand our concern, because it is--although
probably possibly inappropriately leaked, as you characterize,
it is insight for Congress and the American people to see the
process, because we don't see, as a matter of presidential
privilege, executive privilege, what happens on either end of
that passback situation.
And we did get a glimpse of what was being discussed in
that passback. And because of that, because of those concerns,
because of concerns arising out of that and the deviation from
the intent of the law that could have been--could have resulted
from the creation of any of these or all of these suggestions
into the administration of the program caused our concern.
And I appreciate your testimony that none of those have
taken place. It is very, very helpful.
Dr. Wade, your position must give you a more comprehensive
insight into the positive or negative impact any one component
of the program has on the success of the program and the
confidence of the claimant community in the claims processing
system.
Can you share your thoughts about what is wrong and right
with the program as it is currently functioning?
Mr. Wade. Yes. I mean, to the issue of claimant confidence
within the program, as Congress enacted this program, it is not
that people who have cancer would be compensated if they worked
at these facilities.
The Congress decided that a scientific determination needed
to be made if an employee's cancer was more likely than not the
result of that exposure.
And my agency is in the position of trying to reconstruct
the exposure or the dose of individuals and then provide that
information to the Department of Labor, who would then make a
determination as to compensability.
In the work that we have done to this date following the
best science that we can, it turns out that, on average, 70
percent of the people who make application are denied. Twenty-
seven-plus percent are approved, but a greater percentage is
denied.
So the difficulty the program has is that a Government that
they believe once lied to them about their exposure and their
work and what they were doing is now telling them that the
cancer that they suffer from or that their loved ones died from
is not the result of that exposure.
And that is an extremely difficult task for us to undertake
from a communications point of view. That is one of the major
hurdles we face in the program, is to--how to practice the
science, but how to communicate the results of the science in a
way that is sympathetic and understandable to people who feel
that they have been lied to. And that is a huge problem and a
huge hurdle that we face within the program.
I think on the positive side of the administration of the
program, the process has been extremely transparent. The work
of the advisory board is there for all to see and to comment
upon.
And the advisory board has made use of a contractor that
has supported them in as many ways as possible, picking apart
the work that the Government has done, trying to find fault
with it, in this way, as you said at the last hearing,
representing the best interest of the workers. Somebody is
looking out for their best interest and looking at their
perspective and bringing those interests forward.
So I do think that the transparency of the program and the
use of an aggressive process of peer review is the strength of
the program. I also think that the strength of the program is
that we have accomplished now 14,000 dose reconstructions.
There has been over half a billion dollars of compensation
resulting from that.
Hopefully that will show people that the Government is
serious about it work and its program. It will never answer the
hard questions that were in people's minds when the Government
says your cancer was not caused by the exposure based upon a
scientific process that is very hard to understand and a
Government that has lied to them before.
So we have done a lot of positive things in the program,
but this fundamental issue of communicating to workers that
have felt that they have been lied to before is a tremendous
challenge for the program, and one we need to continue to work
to overcome, but it is a very, very difficult challenge that we
face.
Mr. Hostettler. Thank you, Dr. Wade.
The Chair recognizes the gentleman from South Carolina for
5 minutes for questions.
Mr. Inglis. Thank you, Mr. Chairman.
Mr. Smythe, as I understand it, the program has paid
benefits of more than $2 billion to date and is projected to
spend an additional $4.3 billion, I believe it is, over the
next 5 years, which is considerably above the original estimate
of $2.3 billion for the same period.
Are those numbers about right?
Mr. Smythe. That is correct.
Mr. Inglis. So I assume it is part of the job of OMB to
oversee the implementation of major programs like this. Is that
right? I mean, that is what you do.
Mr. Smythe. Yes. Yes, we go through the budget, the annual
budget cycle. We review all programs and all spending. We both
look at various options in terms of how to address those
programs and we also are in the process of constantly revising
the estimates in terms of what these programs are going to
cost.
In this case, this program is an entitlement. So we are
constantly taking a look at it and working with the agencies to
get a good sense in terms of what the costs are going to be for
the program.
Mr. Inglis. And as I understand it, though, from your
testimony here and from other sources, there is no effort by
OMB or the Administration to reduce that level of funding.
Mr. Smythe. No, sir.
Mr. Inglis. So having--I suppose your job is you are
monitoring the growth of the program, figuring out where to get
the dollars to cover it, I suppose, but there is no effort by
the Administration to reduce the expenditures.
Mr. Smythe. No, the problem has grown. Our current
estimates that--the program total outlays are going to be $854
million the year we are in, 2006. We estimate that that will
climb in the--pardon me, it is $870 million, climbing to $1.1
billion in 2007 on the program.
Our policy, as I have stated in my testimony, is to--this
is an entitlement program. Our policy is to implement it. We
have paid during the Bush administration over $2 billion in
benefits. We have done 23,000 claims.
This is a program where workers--as Ms. Jackson Lee said,
these are workers that helped build the nuclear weapons
complex. They helped us win the Cold War. They are due
compensation according to the law, and we want to provide them
that compensation but in accordance with the law.
Congress specified procedures that Dr. Wade specified, and
we want to make sure that those procedures are followed to get
people their full compensation in a timely manner.
Mr. Inglis. And so I am sure it is important to a lot of
people, including some people in South Carolina at the Savannah
River site in Aiken, South Carolina, not in the 4th District of
South Carolina, but close enough to be very concerned about
those folks.
Is the reason for the growth in the program expenditures
increased health care cost, maybe people getting into the more
expensive phase of the disease of cancer, or is it more
awareness of the program or is it all three of the above?
Mr. Smythe. I probably ought to defer to Dr. Wade or
someone else who would be more familiar with the details of the
program. I think the program did--it took a while in terms of
getting this program started.
There are at least--there is HHS, and the Department of
Labor is involved. They have to gather data from the Department
of Energy. There is an advisory board. So it took them a while
to get started.
As I understand it, there are lump-sum benefits that can be
made, but I believe prospective medical care is also provided.
I don't know how that factors into the cost of the program. I
would be happy to take a look at that and try to submit
something to the record for that.
Mr. Inglis. And, Dr. Wade, do you have any sense about what
is the cause of the growth?
Mr. Wade. I mean, it would be speculation on my part, but I
would offer some. I do think that when the specific work of
gathering the information, putting the record together and
attempting to reconstruct dose was undertaken, I think many of
us found that the information that we hoped to find was not as
complete as we might have expected.
I think that has led to two things. I think the act itself
says to us use science when at all possible, but if science is
not available then give the benefit of the doubt to the
claimant.
So I think as you encounter situations where the data is
not complete or as complete as people might have expected it to
be, then giving the benefit of the doubt to claimant might have
resulted in a greater level of compensation.
I think it also goes to the issue, then, of the Special
Exposure Cohort. If the data is not available that would allow
us to estimate the upper limit of dose, then we are brought to
the provision of the Special Exposure Cohort.
And I think if you sort of track the history of that
process as the board has deliberated and as the HHS Secretary
has decided, possibly the data that we thought would be there
is not there as completely as might have been hoped. And I
think that has led to possibly a greater use of the Special
Exposure Cohort than might have imagined.
So I think it is really a byproduct of investigating what
data is available and then making the appropriate judgments
based upon what was found.
Mr. Inglis. Thank you.
Thank you, Mr. Chairman.
Ms. Brock. Mr. Chairman, I am sorry. Could I add something
to that?
Mr. Hostettler. I am going to go into a second round of
questions and, Ms. Brock, I actually have some questions for
you, and you can address that question at that time.
Ms. Brock. Okay.
Mr. Hostettler. I do have a question for you, Mr. Smythe.
Have you just testified that the OMB projected an increase in
Part B payments? Because that is what the passback memo that we
are discussing today is discussing--is subject to.
ESA, the Employment Standards Administration, is to be
commended for identifying the potential for a large expansion
of the EEOICPA Part B benefits through the expansion of Special
Exposure Cohorts.
Is it your testimony that the Administration and the OMB
projected an increase in Part B payments?
Mr. Smythe. I just have total data. I can provide for the
record in terms of what are assumptions are or our estimates
are for the breakup for the various programs.
In our latest--we just sent up to Congress an updated
budget forecast. It is called a mid-session review. It was
submitted a week or so ago. In that, the most recent actual for
total expenditures for this program is $615 million.
In February, we thought that that would grow to $1.6
billion in 2006. It did not reach that. It is now projected to
grow to $870 million in 2006, and it is projected to grow to
$1.1 billion in 2007.
Mr. Hostettler. And that is for all of EEOICPA.
Mr. Smythe. Yes, that is all in. That is all of EEOICPA,
yes.
Mr. Hostettler. Right. And you are familiar with the
passback memo that we are discussing.
Mr. Smythe. Yes. I am very familiar with the passback memo,
and again, these numbers aren't associated with the passback
memo.
Mr. Hostettler. Right.
Mr. Smythe. These numbers are what we think is going to
happen under current law and under our current policy, which is
not the passback memo.
Mr. Hostettler. Right, and the passback memo does not
address those issues. It addresses specifically, and the
concerns we have address specifically, one part of it, which is
the topic of the hearing, and that is the Part B payments.
And I appreciate your testimony, but if you could provide
for us your understanding of the presidential budget projection
for this entitlement program initially for Part B, which is the
subject of the hearing, and we can get the interim mid-session
projection from OMB.
And once again, we appreciate the understanding of the
entire--scope of the entire EEOICPA program, but the memo and
the subject of the hearing have to do with the Part B that is
being--where the concerns are being relayed.
Mr. Smythe. I just want to make sure that there is not an
issue here. These numbers aren't based on the passback memo. I
want to be very clear on that.
Mr. Hostettler. No, no, and----
Mr. Smythe. These numbers are based on the Administration's
policies which are to fully implement the law, and it just
turned out that as we updated those estimates and worked with
the various agencies, the cost in 2006 declined. The estimates
of what the cost would be in 2006 declined. And they rose in
2007.
Just for the Subcommittee's information, the Congressional
Budget Office does the same thing. They make estimates of
entitlement programs. Their estimates are lower than ours in
terms of what this program's going to cost.
Mr. Hostettler. Yes. Yes. And my concern was the cost for
2006 and the projected cost for 2007.
Mr. Smythe. We will get you the Part B estimates, though.
Mr. Hostettler. Yes. Yes.
Ms. Brock, first of all, if you could elaborate on the
point that you wished to elaborate on earlier.
Ms. Brock. And I hope I am understanding this correctly,
but the CBO scoring for subtitle B was $1.8 billion for this
program over 10 years, and that is including the supplemental
payment of $50,000 for the uranium miners and their survivors
covered under RECA.
So to date, nearly 6 years after the enactment, Department
of Labor has paid out $1.59 billion in lump-sum benefits plus
approximately $100 million for medical benefits under subtitle
B, and this is including supplemental payments to RECA-covered
uranium miners.
Mr. Hostettler. Okay. Thank you. What is your response to
the contention that the advisory board made an unwise decision
in approving the SEC at Mallinckrodt?
Ms. Brock. I have not ever heard that, but if that was said
I am completely offended. I think it was a very wise decision.
As I said, after 2 years going over this, over the site
profile--just the timeliness of the second one. I mean, these
people were put on hold for months upon months.
And we know that these workers were exposed to things--very
highly radio-toxic things they were never monitored for. They
were experimented on. And just the whole thought of every time
we would go in there were either additional boxes of something,
there was new methodology on how to dose reconstruct--it was
constantly something.
And I think the board made a wise decision. They didn't do
it frivolously. Sometimes people think they hand this out like
candy on Halloween. That is not the case, believe me. This was
a hard fight. And the board deliberated and just did a
wonderful job, and I think they made the right decision.
And I am hurt and offended if anyone would ever think
otherwise, not just for myself but for that board.
Mr. Hostettler. Thank you.
My time has expired.
The Chair recognizes the gentleman from South Carolina.
I will now turn to just one last question to Mr. Smythe. A
lot of discussion is had about the entitlement status of this
program, which is it. With your budget experience, could you
relate to the Subcommittee possibly a difference in the type of
entitlement that this program is compared to, say, Social
Security benefits, whereby an individual is entitled as a
result of the determination that they are of a particular age
or particular health status for SSI and the like, but
especially an entitlement such as Social Security benefits,
retirement benefits?
What is the similarities and the differences between the
designation of someone being entitled to a benefit?
Mr. Smythe. For Social Security, you know, it is first
probably important to understand what an entitlement is. Unlike
an appropriation for a project or an activity--the
appropriation for OMB--we are bound by our appropriation. We
cannot exceed the $70 million that is appropriated to operate
OMB. So we are bound by that amount.
An entitlement is different. An entitlement is you set
specific criteria in law, and if those criteria are met, the
Government is obligated to make a payment to you regardless of
what the cost is. It is just whatever it costs, that payment is
made.
In this particular program--on Social Security, just sort
of thinking out loud, you know, Social Security is based on
your work history, the amount of time you worked. It is based
on your wages, I believe, in terms of what you are paid. It is
based on your age when you retire. So those are the factors.
And based on those factors, a payment is made.
I think in this program, there are--it involved a number of
other issues in terms of your work history--and again, I am not
an expert on this. You probably ought to get HHS to speak to
it. But again, my sort of understanding of the program is it
involves doing dose reconstructions in these special cohorts
and so forth.
But once those determinations are made that an individual
is entitled to the benefit, the Government is obligated to make
that payment. And it doesn't matter what is in a budget. It
doesn't matter what level is assumed. Whatever it costs, we
make that payment.
Mr. Hostettler. That is an excellent suggestion.
Dr. Wade, let me ask you. And I don't want you to go into
the nuances of Social Security, but just me ask you, the level
of subjectivity in the process for a Social Security payment
versus certification as an SEC--an individual has to, for
example, be determined to be 65 years of age, 40 quarters of
work experience, and the like.
That is relatively objective data, is it not?
Mr. Wade. Correct.
Mr. Hostettler. For Social Security.
Mr. Wade. Yes.
Mr. Hostettler. Can you compare the level of objectively,
subjectivity in the designation of the two entitlement
programs? And once again, you don't have to go into the nuance
of Social Security. I couldn't do that for you.
But when we talk about entitlement programs, we have to
ultimately understand that the Government deems a person
entitled. A person is not entitled because they show up and ask
for a check. They are entitled as the result of the Government
deeming them entitled.
And can you give me a comparison on the level of
objectively and subjectivity between the two?
Mr. Wade. Okay. Well, let me talk a little bit about the
EEOICPA program and then answer your question very
specifically. As I understand the law, it says that a worker's
cancer is shown to be more likely than not the result of their
exposure.
It is not whether they have cancer or not. That is a given
that they have developed cancer. The question is, is that
cancer more likely than not the result of their exposure?
So what happens from a scientific point of view is you look
at that worker and you try and reconstruct the dose that they
were exposed to in their working life. This might come from
individual monitoring samples about the worker. It might come
from area samples about the location that they worked. It might
come from the nature of the radioactive material that was
present where they worked.
So a rigorous scientific process is undertaken to estimate
the dose that they received. Then there is another step, and
that is given that dose, what is the probability of causation
that their cancer resulted from that dose.
There you make use of scientific evidence that has been
collected through various studies of worker exposure and the
occurrence of illness. There is a great deal of the data
results from a view of what those people who were exposed to
atomic weapons in Japan experienced in terms of the occurrence
of disease.
So you have these two steps. First you reconstruct the
dose. And then you determine what that dose means in terms of
the likelihood that the disease resulted from the dose.
To go back to your question, this adds tremendous levels of
complexity--you could use the word subjectivity--uncertainty to
the process. It is much more prevalent in the process that we
practice than it is in the Social Security process.
Mr. Smythe. Mr. Chairman, may I add one thing?
Mr. Hostettler. Sure. Yes.
Mr. Smythe. I think Social Security, as you point out, is
probably more straightforward in terms of making the benefit
determination. But there are other entitlement programs where
there are similar challenges in terms of identifying whether
someone is entitled to benefits.
Just thinking off the top of my head, the EIPC is a program
where there are certain things that have to--standards that
have to be met. It is a complicated program for taxpayers to
deal with before people are eligible for cash payments under
that program.
SSI, food stamps--there are several programs throughout the
Federal Government--there is a whole host of them where certain
determinations and judgments have to be made. And in some
cases, programs are going to run into similar complexity that
this program would.
Mr. Hostettler. And that is true. I appreciate that. And in
all of those programs that you have mentioned, over the last
several years we have determined that there has been high
levels of fraud involved in those programs and have resulted in
significant overpayments in those programs and conferring of
benefits in all those programs.
I don't think that that can--that charge can be made for
this program. But you are absolutely right, there is a level of
complexity, of uncertainty that is there. And that is--and that
is well noted.
And, Ms. Brock, once again, we have heard testimony today
that--the OMB has testified that none of the five options that
were discussed in the passback have been implemented, have been
put in place.
But the mere discussion of those five options gives some
uncertainty to the claimant community that everything--gives
heightened uncertainty to the uncertainty that is inherent in
the system, inherent in the science, would it not, do you
believe?
Ms. Brock. I believe that completely. They are very
mistrusting. And just something even insinuating something of
such does exactly that.
And I know my testimony ran over, but I had actually
prepared five recommendations just because of that, the fear
that that could possibly happen.
Mr. Hostettler. Thank you very much. And we have gone over
our time, and I want to thank all of the witnesses for your
contributions to the record. It is a very important issue, and
you have been very helpful to the record and to the
Subcommittee and the Congress.
Mr. Smythe. I have some data for you. You asked for some
data.
Mr. Hostettler. Yes.
Mr. Smythe. Just on the Part B 2006 outlays, our estimate
is $485 million. 2007 outlays, our estimate is $551 million.
Mr. Hostettler. Thank you. Thank you very much.
The business before the Subcommittee being complete,
without objection, we are adjourned.
[Whereupon, at 3:52 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
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
From the Manhattan Project to the present, tens of thousands of
workers have been employed to develop, build, and test nuclear weapons
for the Department of Energy and its predecessor, the Atomic Energy
Commission. The Energy Employees Occupational Illness Compensation
Program Act of 2000 (the Act) provides compensation if they have
contracted radiation-related cancers, beryllium disease, or silicosis
from employment-related exposure to radiation. They may be eligible for
a lump sum payment of $150,000 and prospective medical benefits.
In Processing radiation related cancer claims, the Department of
Health and Human Services (HHS), acting through the National Institute
for Occupational Safety and Health (NIOSH), is required to estimate a
worker's exposure to radiation, which is referred to as a ``radiation
dose.'' Sometimes, this is not possible. During the early years of the
nuclear weapons programs, some of the workers were not monitored for
radiation exposure, and records have been lost, destroyed, or altered.
The Act provides a remedy for cases in which it is not feasible to
estimate radiation doses but it is clear that the health of workers may
have been endangered by radiation exposure. Workers facing this
situation may petition to be administratively designated as members of
a ``Special Exposure Cohort,'' which provides an unrebuttable
presumption that certain cancers are work related. Members of a Special
Exposure Cohort may be eligible for benefits if they have one of 22
specified radiosensitive cancers, and they have worked at a covered
facility for at least one year in a job that exposed them to radiation.
Petitions for a Special Exposure Cohort designation are evaluated
by NIOSH. NIOSH's recommendation is reviewed by the Advisory Board on
Radiation and Worker Health, and then the petition is sent to HHS for a
decision.
In a recent memorandum to the Department of Labor which is referred
to as an, ``Office of Management and Budget (OMB) passback,'' OMB
commends the Employment Standards Administration for identifying the
potential for a large expansion of EEOICPA benefits through the
designation of Special Exposure Cohorts. OMB states that the
Administration will convene a White House-led interagency work group to
develop options for administrative procedures to contain growth in the
cost of benefits provided by the program, which include discussions of
the following options.
Require Administration clearance of Special Exposure Cohort
determination; address any imbalance in membership of the Advisory
Board; require an expedited review by outside experts of NIOSH's
recommendations; require NIOSH to apply conflict of interest rules and
constraints to the Advisory Board's contractor; and require NIOSH to
demonstrate that its site profiles and other dose reconstruction
guidance are balanced. Notwithstanding that memorandum, the Director of
the Department of Labor's compensation program testified at a recent
hearing before this subcommittee that cost containment is not a factor
in deciding which claims to pay. This did not eliminate my concern that
OMB's recommendations will be implemented and that they will have an
adverse effect on the independence of the process for evaluating
Special Exposure Cohort petitions. I have introduced a bill to address
this problem, the Energy Employees Occupational Illness Compensation
Program Improvement Act of 2006.
Among other things, it would shift the authority for making
Advisory Board appointments to the Congress. It would 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. And, it would eliminate unfairness by making benefits
available to some subcontractor employees who worked at atomic weapons
employer facilities but presently are not covered by the Act.