Alliance of Nuclear Worker Advocacy Groups
Coaltion for a Healthy Environment, Oak Ridge, TN
United Nuclear Weapons Workers, St. Louis, MO
Grassroots Organization of Sick Workers, Craig, CO
634 Pershing Street
Craig, CO 81625
970-824-2260
VIA FAX
August 1, 2004
President George W. Bush
1600 Pennsylvania, NW
Washington, DC 20500
Dear President Bush:
The Alliance of Nuclear Worker Advocacy Groups (ANWAG) respectfully urge you to
cease your opposition to the Bunning-Bingaman amendment to the Energy Employee
Occupational Illness Compensation Program Act (EEOICPA) that was included in
Sections 3151-3156 of the FY 05 Defense Authorization Act. ANWAG is an
alliance of groups working to reform EEOICPA composed of workers and survivors
in Colorado, Tennessee, and Missouri. Our groups have carefully monitored
the implementation of EEOICPA. This letter explains the basis for our support
and responds to DOE's criticisms of the Bunning Bingaman Amendment.
The amendment, passed on June 16, by a unanimous voice vote in the United States
Senate, contains reforms correcting many of the problems with EEOICPA. The
Bunning-Bingaman amendment goes a long way to honoring a Congressional
commitment made 4 years ago to nuclear weapons plant workers made sick while
employed in the production of the nation's nuclear deterrent (and its cleanup).
This legislation removes key bottlenecks in claims processing, improves the quality
of the decisions, and establishes a willing payor for all valid EEOICPA
claims. The latter is a key flaw identified by the Government Accounting
Office report of May 2004 to Congress. This is a serious issue for up to
50% of the sick workers nationwide, and affects a number of workers in many
states including CO, IA, OH, KY, MO, NV, NM, ID and SC. Some of the workers with a positive finding
by the Department of Energy's (DOE) panel of physicians will be left to pursue
their claim in an adversarial state workers compensation forum. It would
be necessary to re-prove, by a preponderance of evidence, before a state
tribunal, that the illness was attributable to the workplace exposures-even
though the Department of Energy has already validated that illness claim is
genuinely work related. DOE contractors, insurers or exclusive state
funds will assert their legal defenses, and the chances that the worker or
their survivor would receive just compensation is close to zero.
This amendment, a bi-partisan effort, would allow the claimant to collect
the compensation due in a timely manner by transferring the responsibility for
processing EEOICPA Subtitle D claimants from the Department of Energy to the
Department of Labor (DOL). The Department of Labor has an excellent track
record for processing the claims under Subtitle B, as well as being responsible
for 4 additional compensation programs. They are experts in establishing
claims valuation for disability benefits, and they have adjudicative panels to
resolve disputes. DOL's past performance indicates that they are
diligent and compassionate in getting the deserved compensation to the
claimants. ANWAG has every confidence that DOL is up to the task of processing
and compensating the deserving workers
DOE's most recent proposal to fix EEOICPA (this is the fourth plan submitted
to Congress) was generated in reaction to Senate legislation for FY 2004.
DOE's plan to reinvent itself is based on (a) expertise that DOE (and it
contractor) lacks, (b) infrastructure that DOE lacks, and (c) a track record of
implementing plans that have never materialized. NBC Nightly News had it
right when it described DOE's implementation of EEOICPA as a "Fleecing of
America".
After saying for 3 years that it needs to "study" the willing payor
problem and "study" benefit levels, DOE now declares, in the face of
the Bunning-Bingaman amendment, that a solution is readily at hand. But in its haste
to come up with this latest "plan", DOE is proffering a willing payor
approach which is unproven, untested, and lacks any assurances it will work. To
be a willing payor, DOE says it will now reimburse states, insurers, and former
contractors and subcontractors. But this requires agreements from former
contractors, subcontractors, insurers and states' compensation programs to
serve as willing payors. DOE knows it cannot legally compel or guarantee that
any of these entities will agree to be willing payors on terms and conditions
that will assure non-adversarial claims resolution and prompt payments.
While it is true that DOE's contracts with their self-insured contractors allows
for reimbursement by DOE for workers compensation costs, valid claims are still
being contested by its current contractors at the state level. This raises real
credibility questions about the ease with which DOE can even make its current
contractors serve as willing payors. All 28 claims from Rocky Flats
workers approved under Subtitle D are being contested by the contractor,
according to DOE data. DOE's latest "plan" does not address
what it will do if insurers won't accept responsibility to pay claims if their
reimbursement is subject to appropriations.
DOE asserts that they can process the backlog of claims by September, 2007.
In February 2003, Secretary Abraham and Deputy Secretary McSlarrow both DOE
projected DOE would move 100 claims per week through the physicians panel by
August 2003. In July 2003, DOE promised it would get all claims up to the
Physicians Panels by August 2004 with added funding, DOE got the money, but is
only 20% of the way to that goal. DOE's projections lack
credibility. DOE's goals are simply invented to get through the
crisis-of-the-day.
DOE says they are concerned about the complexity of DOL's proposed
payment schedule (using individual state workers compensation plans).
ANWAG agrees that it would have been better to have a standardized plan, such
as Federal Employees Compensation Act (FECA) or the Longshore & Harbor
Workers Act as a basis for benefit calculations. And if the House would
consider this, we would be pleased to support the use of a uniform benefit
level. However, the use of state payment schedules, while more complex,
is not an insurmountable problem and is one DOE already faces to the extent it
has willing payors. The Bunning-Bingaman amendment calls upon individual
state workers compensation officials to assist DOL in developing the schedule.
If DOE were the willing payor, DOE would still have to calculate the same benefit
levels if it were the willing payor. This criticism of the Bunning Bingaman
amendment is a double standard in DOE's position. How is it possible that
DOE is qualified to determine the levels of benefits that are appropriate for
reimbursement, but DOL cannot pull this off because it is too complex?
DOE says there will be a $300 million shortfall if DOL has to run the program.
This is a specious argument. If DOE were the willing payor it would still
have to come up with the exact same amount of appropriated funds for benefits
as the DOL. Moreover, DOE has administrative costs that are twice as high as
DOL, according to the Senate Finance Committee analysis. If DOL runs the
program, one option is to have DOE reimburse DOL through a "charge
back". DOE already reimburses DOL for the costs of federal employee
worker compensation claims under FECA. We would prefer mandatory spending to
fund benefits, as the rest of EEOICPA is funded.
The amendment also demands that site profiles be completed. In 2003, Congress directed DOE to do site profiles and DOE still has not delivered. The panel of physicians would have operated much more efficiently and produced higher quality decisions had the information on the chemicals and toxic materials used on each major site been available. GAO recommended site profiles in its report in May 2004. DOL agrees in its June 17 comments to Congress, particularly if these profiles focused on commonly used substances. With higher quality decisions, there will also be fewer appeals and faster claims processing. Site profiles will provide a positive return on investment. ANWAG issued a white paper on why site profiles are value added.
DOE has had nearly 4 years to implement this program. It has received $95,000,000
and yet only 10 people have been assisted in obtaining benefits. It would
be a great injustice to the sick workers and their families if Congress were to
allocate additional funding to DOE and allow the current program to continue as
is. The Senate's solution is the right one. The DOL is able to
accept transfer of Subtitle D and we have no doubt about their expertise, their
infrastructure or their track record.
Mr. President, ANWAG does not understand your position. It seems to endorse
governmental waste and agency bungling. The Bunning/Bingaman amendment
solves the waste problem and gets the compensation to the workers. A
reversal of your position would be welcomed by the 24,000+ constituents.
The Alliance of Nuclear Worker Advocacy Groups strongly and respectfully urges
you to do all in your power to keep this legislation intact as part of the FY
05 Defense Authorization Act. Please contact me at 970-824-2260, if you have
any questions.
Sincerely,
Terrie Barrie
For the Alliance of Nuclear Worker Advocacy Groups
cc: Vice President Richard Cheney