Workers Compensation Programs Office Seeks Comments on Black Lung Benefits Act Regulations Revisions
Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits
A Proposed Rule by the Workers Compensation Programs Office on
Publication Date:
Agencies:
Dates: The Department invites written comments on the proposed regulations from interested parties. Written comments must be received by
Comments Close:
Entry Type: Proposed Rule
Action: Notice of proposed rulemaking; request for comments.
Document Citation: 80 FR 23743
Page: 23743 -23754 (12 pages) CFR: 20 CFR 725
RIN: 1240-AA10
Document Number: 2015-09573
Shorter URL: https://federalregister.gov/a/2015-09573
Action
Notice Of Proposed Rulemaking; Request For Comments.
Summary
The Department is proposing revisions to the Black Lung Benefits Act (BLBA) regulations to address several procedural issues that have arisen in claims processing and adjudications. To protect a miner's health and promote accurate benefit determinations, the proposed rule would require parties to disclose all medical information developed in connection with a claim for benefits. The proposed rule also would clarify that a liable coal mine operator is obligated to pay benefits during post-award modification proceedings and that a supplemental report from a physician is considered merely a continuation of the physician's earlier report for purposes of the evidence-limiting rules.
DATES:
The Department invites written comments on the proposed regulations from interested parties. Written comments must be received by
ADDRESSES:
You may submit written comments, identified by RIN number 1240-AA10, by any of the following methods. To facilitate receipt and processing of comments, OWCP encourages interested parties to submit their comments electronically.
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions on the Web site for submitting comments.
Facsimile: (202) 693-1395 (this is not a toll-free number). Only comments of ten or fewer pages, including a Fax cover sheet and attachments, if any, will be accepted by Fax.
Regular Mail: Submit comments on paper, disk, or CD-ROM to the
Hand Delivery/Courier: Submit comments on paper, disk, or CD-ROM to
Instructions: All submissions received must include the agency name and the Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Background of This Rulemaking
The BLBA, 30 U.S.C. 901-944, provides for the payment of benefits to coal miners and certain of their dependent survivors on account of total disability or death due to coal workers' pneumoconiosis. 30 U.S.C. 901(a); Usery v.
II. Summary of the Proposed Rule
A. General Provisions
The Department is proposing several general revisions to advance the goals set forth in Executive Order 13563. 76 FR 3821 (
B. Section-by-Section Explanation
20 CFR 725.310 Modification of awards and denials.
Section 725.310 implements section 22 of the
While modification is a broad remedy available to responsible operators as well as claimants, a mere request for modification does not terminate an operator's obligation to comply with the terms of a prior award, or otherwise undermine the effectiveness, finality, or enforceability of a prior award. See Vincent v.
The plain language of the Act and its implementing regulations support this conclusion. An operator is required to pay benefits "after an effective order requiring the payment of benefits"--generally an uncontested award by a district director or any award by an administrative law judge, the
Despite this clear authority, some operators obligated to pay benefits to claimants (and to repay the
First, it prevents claimants from timely receiving all the benefits to which they are entitled. If an operator fails to comply with the terms of an effective award, the
The Act currently provides two mechanisms for claimants to enforce these liabilities. Section 21(d) of the Longshore Act, 33 U.S.C. 921(d), as incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 932(a), and implemented by 20 CFR 725.604, provides for the enforcement of final awards. And section 18(a) of the Longshore Act, 33 U.S.C. 918(a), as incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 932(a), and implemented by 20 CFR 725.605, does the same for effective awards. These remedies are, however, imperfect. Even if the previous award is final, section 21(d) still requires the claimant to file an enforcement action in federal district court to secure compliance with the award, a substantial barrier for unrepresented claimants. And even for represented claimants, the process can be a source of substantial delay. For example, the district court's order enforcing a final award under section 21(d) in Nowlin v.
Second, the practice improperly shifts financial burdens from the responsible operator to the
This intent is undermined if an operator does not pay benefits or reimburse the
Section 725.502's requirement that operators pay benefits owed under the terms of effective (as well as final) awards is designed to place these overpayment recovery risks where they properly belong: On the operator who, if successful, has the same overpayment recoupment rights as the
To deal with this recurring problem, the Department proposes adding new paragraph (e) to section 725.310. Proposed paragraphs (e)(1) and (2) provide that an operator's request to modify any effective award will be denied unless the operator proves that it has complied with all of its obligations under that award, and any other currently effective award (such as an attorney fee award) in the claim, unless payment has been stayed. By incorporating section 725.502(a)'s definition of effective award, the proposed regulation clarifies that an operator is not required to prove compliance with formerly effective awards that have been vacated either on reconsideration by an administrative law judge, or on appeal by the Board or a court of appeals, or that have been superseded by an effective modification order.
Proposed paragraph (e)(3) integrates the requirements of paragraph (e)(1) into the overall modification procedures outlined by section 725.310(b)-(c). The Department anticipates that compliance with the requirements of outstanding effective awards will be readily apparent from the documentary evidence in most cases and that any non-compliance with those obligations will be easily correctable by the operator based on that evidence. Accordingly, paragraph (e)(3) encourages the parties to submit all documentary evidence at the earliest stage of the modification process (i.e., during proceedings before the district director) by forbidding the admission of any new documentary evidence addressing the operator's compliance with paragraph (e)(1) at any subsequent stage of the litigation absent extraordinary circumstances. The Department intends that the term "extraordinary circumstances" in this context be understood the same way that the identical term has been applied in cases governed by section 725.456(b)(1). See, e.g.,
Proposed paragraph (e)(4) clarifies that an operator has a continuing obligation to comply with the requirements of effective awards during all stages of a modification proceeding. The Department believes that imposing an affirmative obligation on operators to continually update the administrative law judge, Board, or court currently adjudicating its modification request about every continuing payment required by previous awards would be unduly burdensome on both operators and adjudicators. When an operator's non-compliance is brought to an adjudication officer's attention, however, the adjudicator must issue an order to show cause why the operator's modification petition should not be denied. Because the issue will be the operator's compliance with paragraph (e)(1) at the time of the order rather than at the time it requested modification, evidence relevant to this issue will be admissible even in the absence of extraordinary circumstances. In addition, to avoid the burden of a minor default resulting in the denial of modification, paragraph (e)(4) gives the operator an opportunity to cure any default identified by the Director or claimant before the modification petition is denied.
Proposed paragraph (e)(5) clarifies that the denial of a modification request on the ground that the operator has not complied with its obligations under previous effective awards will not prejudice the operator's right to make additional modification requests in that same claim in the future. At the time of that future request, of course, the operator must satisfy all modification requirements, including section 725.310(e).
Finally, proposed paragraph (e)(6) makes these requirements applicable only to modification requests filed on or after the effective date of the final rule. Making the rule applicable prospectively avoids any administrative difficulties that could arise from applying the rule's requirements to pending modification requests.
20 CFR 725.413 Disclosure of Medical Information
The Department proposes a new provision that requires the parties to disclose all medical information developed in connection with a claim. Currently, parties to a claim are free to develop medical information to the extent their resources allow and then select from that information those pieces they wish to submit into evidence, subject to the evidentiary limitations set out in section 725.414. See 20 CFR 725.414. Medical information developed but not submitted into evidence generally remains in the sole custody of the party who developed it unless an opposing party obtains the information through a formal discovery process.
Experience has demonstrated that miners may be harmed if they do not have access to all information about their health, including information that is not submitted for the record. Claimants who do not have legal representation are particularly disadvantaged because generally they are unfamiliar with the formal discovery process and thus rarely obtain undisclosed information. Moreover, benefit decisions based on incomplete medical information are less accurate. These results are contrary to the clear intent of the statute.
One recent case, Fox v.
Had
Ensuring that a miner has access to information about his or her health is consistent with the primary tenet of the
By requiring disclosure, the rule also protects parties who do not have legal representation. Virtually without exception, coal mine operators are represented by attorneys in claims heard by administrative law judges. But claimants cannot always obtain legal representation. The Department estimates that approximately 23 percent of claimants appear before administrative law judges without any representation, and some of those claimants who have representation are represented by lay persons. Unrepresented claimants and lay representatives are generally unfamiliar with technical discovery procedures and thus do not pursue any information not voluntarily disclosed by the operator. And even when represented, not all attorneys use available discovery tools. Thus, making full disclosure mandatory will put all parties on equal footing, regardless of representation and regardless of whether they request disclosure of all medical information developed in connection with a claim.
Finally, allowing parties fuller access to medical information may lead to better, more accurate decisions on claims. Elevating correctness over technical formalities is a fundamental tenant of the BLBA. Subject to regulations of the Secretary, the statute gives the Department explicit authority to depart from technical rules: adjudicators "shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure . . . but may make such investigation or inquiry or conduct such hearing in such manner as to best ascertain the rights of the parties." 33 U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a). See also 20 CFR 725.455(b). This statutory provision evidences
An incorporated provision of the Social Security Act provides additional authority for proposed section 725.413. See 30 U.S.C. 923(b), incorporating 42 U.S.C. 405(a). As incorporated into the BLBA, section 205(a) of the Social Security Act, 42 U.S.C. 405(a), gives the Department wide latitude in regulating evidentiary matters pertaining to an individual's right to benefits. Specifically, the Department is vested with "full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions, and [to] adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits." Section 205(a) has been construed as granting "exceptionally broad authority to prescribe standards" for proofs and evidence. Heckler v. Campbell,
The proposed rule sets out both requirements for the disclosure of medical information and sanctions that may be imposed on parties that do not comply with the rule. Proposed section 725.413(a) defines what constitutes "medical information" for purposes of this regulation. The regulation casts a broad net by encompassing any medical data about the miner that a party develops in connection with a claim. Treatment records are not information developed in connection with a claim and thus do not fall within this definition. But any party may obtain and submit records pertaining to treatment for a respiratory or pulmonary or related disease under section 725.414(a)(4).
Proposed paragraph (a)(1) addresses examining physicians' opinions and includes all findings made by an examining physician in the definition of "medical information." An examining physician's opinion may disclose incidental physical conditions beyond a miner's respiratory or pulmonary systems that need attention. Giving miners full access to this data is consistent with the Act's and the Department's intent to protect the miner's health. Proposed paragraphs (a)(2) through (a)(4) include all other physicians' opinions, tests, procedures and related documentation in "medical information," but only to the extent they address the miner's respiratory or pulmonary condition.
Proposed section 725.413(b) sets out the duty to disclose medical information about the miner and a time frame for such disclosure. The duty to disclose arises when either a party or a party's agent receives medical information. By including a "party's agent," the proposed rule requires disclosure of medical information received by any individual or business entity that develops or screens medical information for the party or the party's attorney. Thus, a party may not avoid disclosure by having medical opinions and testing results filtered through a third-party agent. The time frame for disclosure is generally 30 days after receipt of the medical information. Within that time period, the disclosing party must send a copy of the medical information obtained to all other parties of record. In the event the claim is already scheduled for hearing by an administrative law judge when the medical information is received, the proposed rule requires the disclosing party to send the information no later than 20 days prior to the hearing. This provision correlates with current section 725.456(b)(2)'s 20-day requirement for exchanging any documentary evidence a party wants to submit into the hearing record.
Proposed section 725.413(c) provides sanctions that an adjudication officer may impose on a party that does not comply with its obligation to disclose the medical information described in proposed section 725.413(a). In determining an appropriate sanction, the proposed rule requires the adjudication officer to consider whether the party who violated the disclosure rule was represented by counsel when the violation occurred. The proposed rule also requires the adjudication officer to protect represented parties when the violation was attributable solely to their attorney's errors. The sanctions listed are not exclusive, and an adjudication officer may impose a different sanction, so long as it is appropriate to the circumstances presented in the particular case. Two of the listed sanctions are unique to the BLBA claims context. First, the proposed rule allows the adjudication officer to disqualify the non-disclosing party's attorney from further participation in the claim proceedings. The Department believes this is an appropriate sanction when the party's attorney is solely at fault for the non-disclosure and the failure to disclose resulted from more than an administrative error. Second, the proposed rule empowers an adjudication officer to relieve a claimant from the impact of a prior claim denial (see 20 CFR 725.309(c)(6)) if the medical information was not disclosed in accordance with the regulation in the prior claim proceeding. This sanction removes an incentive for responsible operators to withhold medical information and, by encouraging operators to comply, helps protect miners like
Finally, proposed section 725.413(d) sets out when the rule is applicable. Significantly, proposed paragraph (d)(2) specifies that the rule applies to claims pending on the rule's effective date if an administrative law judge has not yet entered a decision on the merits. To provide adequate time for disclosure in pending cases, the proposed rule allows the parties 60 days to disclose evidence received prior to the rule's adoption. Evidence received after the rule's effective date remains subject to proposed section 725.413(b)'s 30-day time limit. After an administrative law judge issues a merits decision, proposed paragraph (d)(3) imposes the obligation to disclose medical information only when further evidentiary development is permitted on reconsideration, remand from an appellate body, or after a party files a modification request. Applying this rule to pending claims will further one of the rule's primary purposes: protecting the health of the nation's miners.
20 CFR 725.414Development of Evidence
(a) Section 725.414 imposes limitations on the quantity of medical evidence that each party may submit in a black lung claim. The Department proposed the limitations, in part, to ensure that eligibility determinations are based on the quality, not the quantity, of evidence submitted and to reduce litigation costs. 62 FR 3338 (
The Director's position flows from the language of the current rules, which constrains the evidence a physician may review in a written report based only on its admissibility. Current section 725.414(a)(1) makes clear that a physician who provides a written opinion on the miner's pulmonary condition may consider all "admissible medical evidence." Significantly, a physician who prepares a written medical report may also provide oral testimony in a claim, either at the formal hearing or through a deposition, and may "testify as to any other medical evidence of record." 20 CFR 725.414(c), 725.457(d). Thus, so long as a piece of medical evidence is admissible, a physician may consider it when addressing the miner's condition in either a written report or oral testimony.
Supplemental reports are a reasonable and cost-effective means of providing medical opinion evidence given the practical realities of federal black lung litigation. Even with the evidence-limiting rules, a miner who files a black lung claim may undergo up to five sets of examinations and testing "spread . . . out over time." 65 FR 79992 (
(b) For cases in which the
The first choice forecloses any possibility of recovery from the operator in the case of an award because the award would run against the
Proposed section 725.414(a)(3)(iii) allows the Director the option of developing evidence in such cases. This revision would not prejudice claimants because the Director would be bound by the same evidence-limiting rules as the operator. In a miner's claim, the medical evidence developed under section 725.406 counts as one medical report and one set of tests submitted by the Director, 20 CFR 725.414(a)(3)(iii), and the Director would be able to submit only one additional medical report and set of tests, along with appropriate rebuttal evidence. And in a survivor's claim, the Director, like an operator, is limited to two complete reports and rebuttal evidence. Moreover, in appropriate cases, the Director may determine that an award of benefits is justified, and decline to submit additional evidence. In sum, the proposed rule reasonably allows the Director to defend the
20 CFR 725.601Enforcement Generally
Current section 725.601 sets out the Department's policy regarding enforcing the liabilities imposed by Part 725. The last sentence of current paragraph (b) refers to "payments in addition to compensation (see section 725.607)[.]" For the reasons explained in the discussion under section 725.607, the Department proposes to replace the phrase "payments in addition to compensation" with the phrase "payments of additional compensation." No substantive change is intended.
20 CFR 725.607Payments in Addition to Compensation
The Department proposes two revisions to current section 725.607, which implements section 14(f) of the
The majority of courts to consider the question have agreed with the Director's view that the 20% payment required by section 14(f) is itself "compensation" rather than a penalty. See Newport News Shipbuilding and Dry Dock Co. v. Brown, 376 F.3d 245, 251 (4th Cir. 2004) ("[I]t is plain that an award for late payment under [section] 14(f) is compensation."); Tahara v.
Current section 725.607 does not consistently reflect the majority rule or the Director's position. Paragraph (b) describes section 14(f) payments as "additional compensation." But both the title of the section and paragraph (c) describe them as payments "in addition to compensation." The latter formulation could be read to suggest that 14(f) payments are something other than compensation. While the "in addition to compensation" formulation has not caused any problems in the administration of section 725.607 thus far, the Department wishes to eliminate any possibility that the regulation's phrasing could confuse readers. Accordingly, the Department proposes to replace "in addition to compensation" with "additional compensation" in the title of section 725.607 and paragraph (c). To maintain consistency within part 725, the Department also proposes the same change to section 725.601(b).
III. Statutory Authority
Section 426(a) of the BLBA, 30 U.S.C. 936(a), authorizes the Secretary of Labor to prescribe rules and regulations necessary for the administration and enforcement of the Act.
IV. Information Collection Requirements (Subject to the Paperwork Reduction Act) Imposed Under the Proposed Rule
The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., and its implementing regulations, 5 CFR part 1320, require that the Department consider the impact of paperwork and other information collection burdens imposed on the public. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the
As discussed earlier in the preamble, proposed section 725.413 would require each party in a black lung benefits claim to disclose certain medical information about the miner that the party or the party's agent receives by sending a complete copy of the information to all other parties in the claim. The Department does not believe this rule will have a broad impact because in many (and perhaps the majority) of cases, the parties already exchange all of the medical information in their possession as part of their evidentiary submissions. But requiring an exchange of additional medical information could be considered a collection of information within the meaning of the PRA. Thus, consistent with the requirements codified at 44 U.S.C. 3506(c)(2)(B) and 3507(d), and at 5 CFR 1320.11, the Department has submitted a new Information Collection Request to OMB for approval under the PRA and is providing an opportunity for public comment. A copy of this request (including supporting documentation) may be obtained free of charge by contacting
The Department has estimated the number of responses and burdens as follows for this information collection:
Title of Collection: Disclosure of Medical Information
OMB Control Number: 1240-0NEW [OWCP will supply before publication]
Total Estimated Number of Responses: 4,074
Total Estimated Annual Time Burden: 679 hours
Total Estimated Annual Cost Burden:
In addition to having an opportunity to file comments with the Department, the PRA provides that an interested party may file comments on the information collection requirements in a proposed rule directly with OMB at the
OMB and the Department are particularly interested in comments that:
Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the information to be collected; and
Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
V. Executive Orders 12866 and 13563 (Regulatory Planning and Review)
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Department has considered the proposed rule with these principles in mind and has determined that the regulated community will benefit from this regulation. The discussion below sets out the rule's anticipated economic impact and discusses non-economic factors favoring adoption of the proposal. OMB has reviewed this rule prior to publication in accordance with these Executive Orders.
A. Economic Considerations
The proposed rule includes only one provision that arguably could have an economic impact on parties to black lung claims or others: proposed section 725.310(e), which requires a responsible operator to pay effective awards of benefits while seeking to modify those awards. As set forth above in the Section-by-Section Explanation, within one year of an award of benefits or of the last payment of benefits, a liable coal mine operator may request modification of an award (i.e., may seek to have the award converted to a denial) based on a change in conditions or because of a mistake in a determination of fact in the award. 20 CFR 725.310(a). Operators are legally obligated to make benefit payments during such modification proceedings. But few do, and the
Even if the proposed rule were construed to impose a new obligation on operators, the Department believes any additional costs involved would not be burdensome for several reasons. First, if an operator's modification request is denied, the operator must reimburse the
B. Other Considerations
The Department has also considered other benefits and burdens that would result from the proposed rules apart from any potential monetary impact. As discussed in the Section-by-Section analysis, proposed section 725.310(e) requires responsible operators to meet their payment obligations on effective awards before modifying those awards. This rule strikes an appropriate balance between the parties' competing interests: claimants are made whole while operators who would be irreparably harmed by making such payments can seek a stay in payments. While there is some risk that the operator will not recover payments made after a successful modification petition, placing that risk on the operator, rather than the
Proposed section 725.413, which requires the parties to disclose all medical information they develop, will help protect miners' health and assist in reaching more accurate benefits determinations. These concerns far outweigh any minimal additional administrative burden this rule would place on the parties as a result of the mandatory exchange of this information. Moreover, the Department does not believe this rule will have an extremely broad impact. In many (and perhaps the majority) of cases, the Department believes, and has been informed by the public, that the parties already exchange all of the medical information in their possession as part of their evidentiary submissions.
Finally, the proposed revisions to section 725.414 and section 725.607 will benefit all regulated parties simply by adding clarity to the rules.
VI. Regulatory Flexibility Act and Executive Order 13272 (Proper Consideration of Small Entities in Agency Rulemaking)
The Regulatory Flexibility Act of 1980, as amended, 5 U.S.C.
The Department has determined that a regulatory flexibility analysis under the RFA is not required for this rulemaking. While many coal mine operators are small entities within the meaning of the RFA, see 77 FR 19471-72 (
Based on these facts, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. Thus, a regulatory flexibility analysis is not required. The Department invites comments from members of the public who believe the regulations will have a significant economic impact on a substantial number of small coal mine operators. The Department has provided the Chief Counsel for Advocacy of the
VII. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
VIII. Executive Order 13132 (Federalism)
The Department has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have "federalism implications." E.O. 13132, 64 FR 43255 (
IX. Executive Order 12988 (Civil Justice Reform)
The proposed rule meets the applicable standards in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. See 61 FR 4729 (
X. Congressional Review Act
The proposed rule is not a "major rule" as defined in the Congressional Review Act, 5 U.S.C.
List of Subjects in 20 CFR Part 725
Administrative practice and procedure
Black lung benefits
Claims
Health care
Reporting and recordkeeping requirements
Vocational rehabilitation
Workers' compensation
Signed at
Director,
Editor's note: For the full-text of this document, click this link or copy it into your browser: https://www.federalregister.gov/articles/2015/04/29/2015-09573/black-lung-benefits-act-disclosure-of-medical-information-and-payment-of-benefits.
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