DOL COMMENTS ON THE BUNNING AMENDMENT
TO THE FY 2005 DEFENSE AUTHORIZATION BILL

June 30, 2004

DOL has reviewed the language of the Bunning amendment to EEOICPA recently
added to the FY 05 Defense Authorization bill.  DOL concurs with the
Statement of Administration Policy that the EEOICPA Part D program should
not be transferred from DOE, and that doing so will only result in delays
in processing and administering benefits for Part D applicants. 

DOL has serious concerns about a number of provisions in the Bunning
amendment that will substantially interfere with the ability of it or any
other administrator to provide fair and timely compensation for deserving
claimants.  DOL is concerned that this amendment will repeat the experience
of the original Part D of EEOICPA of promising far more benefits and far
more timely determinations than the language of the amendment makes it
possible to deliver.  (These comments are based on DOL's understanding that
the language adopted by the Senate was virtually identical to Senate
Amendment No. 3438 filed on June 7.)

POLICY ISSUES

Funding -The most serious flaw in the Bunning amendment is that it merely
authorizes appropriations to DOL for administrative costs and benefits
rather than establishing a secure source of funding.  As a result, it is
almost guaranteed to require DOL to issue IOU's to claimants and their
medical providers when benefit payments exceed funding, potentially
creating a large class of deserving claimants unhappy with DOL for failing
to actually pay compensation and unhappy with Congress for failing to
adequately fund the program.  It also fails to either provide initial
funding for administration of the program or even specify the source of
appropriations. 

Determinations - The requirement that DOL determine what claimants would
have received under numerous different state workers' compensation schemes
during periods as much as six decades ago may well not be possible to
administer at any reasonable cost or in a timely manner. Even if the state
of the law in each state over the past six decades could easily be
determined, adjudicating such issues as pay rates and period and extent of
disability will be difficult if not impossible. While DOL is authorized to
contract with state agencies for assistance, they will face the same
hurdles and DOL will be required to develop expertise to ensure decisions
are correct and to defend them in court.  By requiring DOL to attempt to
apply numerous changeable state workers' compensation law, the Bunning
amendment will result in a far slower and far more contentious resolution
of the backlog of claims already received and of those filed in the future.

Offset - The current election of remedy provision does not appear to
provide a workable solution to the problem of coordinating benefits between
Part B and Part D. 

Automatic Coverage for Part B Beneficiaries -Entitlement to benefits
under Part D for any illness found to be covered under Part B will create
inconsistencies between similarly situated claimants due to the differing
adjudication structure possible under Part B, since employees at certain
facilities receive a presumption of coverage through the Special Exposure
Cohort provisions.  There does not appear to be a reasonable basis to argue
that all claimants should not be required to meet the same standards to
obtain benefits under Part D.

Residual Contamination Coverage - The expansion of Part B coverage for
AWE employees who began work during a period when the AWE site had residual
contamination, using the list of sites with residual contamination from the
2003 report reviewing these sites compiled by the National Institutes for
Occupational Safety and Health, will sweep in a substantial number of
employees who received small doses of radiation that will not be enough to
qualify them for benefits.  Administration of these cases will be difficult
and expensive, and public frustration will be increased rather than
diminished.      

Continuation of Part D - The amendment does not specify to what extent
current Part D operations continue.

PROCESS ISSUES

Deadline - The Bunning amendment requires regulations to be issued within
120 days of enactment and administration to commence within 180 days.  This
will be impossible to meet given the complexity of the different State
worker compensation schemes and the development of site profiles. 

Site Profiles -The language of the site profile provision would establish
a massive, nearly impossible task which would fall almost entirely to
NIOSH.  Since "all toxic substances" are referenced, NIOSH would likely
consider itself obliged to produce a comprehensive profile for tens of
thousands of substances. 

Once again, the Administration is opposed to the Bunning amendment and
any transfer of Part D to DOL. If the Bunning amendment were to be enacted
into law, DOL would have additional concerns with the type and manner of
review of Part D determinations, contract limitation provisions, inclusion
of an ombudsman, and attorney fee schedules; all currently included in the
Bunning amendment.