Rocky responds to the Department of Labor
Rocky Mountain News
Published August 21, 2008 at 8:49 a.m.
The Rocky Mountain News responds to Department of Labor letters sent to Congressmen Mark Udall and Ed Perlmutter of Colorado and Tom Udall of New Mexico. The congressmen initially wrote to labor officials about the department's failure to respond to the Rocky's Deadly Denial series.
DOL: Your letter makes some strong statements asserting that the Department of Labor did not respond to the author of this series, Ms. Laura Frank. The fact of the matter is that the Department of Labor has responded to Ms. Frank's numerous inquiries and those of her colleague, Ann Imse, over the many months that the Rocky Mountain News has run articles about the Energy Employees Occupational Illness Compensation Program Act. The truth of this is borne out by the quotes from departmental officials that have appeared in these articles. The Department has even hosted Ms. Frank at the Department for personal briefings with EEOICPA officials both in Washington and in Denver at the EEOICPA claims center. The Department of Labor has gone the extra mile in accommodating Ms. Frank's requests for information and on the record responses.
RMN: Twice in the past year, the Labor Department has gone two months or more without responding to calls or e-mails from the Rocky seeking information about the compensation program. The "personal briefing" in Washington is an apparent reference to an interview with department official Shelby Hallmark in the hallway after a Congressional hearing on the compensation program. Six weeks before publishing its series, Deadly Denial, the Rocky sent DOL officials a three-page letter detailing the major findings of its investigation. DOL officials said repeatedly the agency was working on a 6-page response, but that response never came. The Rocky included in its series previous quotes from DOL officials in an attempt to be fair and explain the department's previously-stated positions.
DOL: Over the life of the EEOICPA program, the DOL has responded to numerous requests from the Rocky Mountain News, and has spent countless hours explaining this complex program to the RMN's staff.
RMN: DOL's Shelby Hallmark has had three interviews with Laura Frank since a Congressional hearing on the troubled Energy Employees Occupational Illness Compensation Program last October: the 15-minute interview while standing in the hallway after the hearing, a phone interview requested by Hallmark in November, and a two-hour interview with Hallmark in Denver in February (something the Rocky had been requesting since the previous November and was told would happen in 2007). The Rocky first requested an interview with Hallmark May 13 for its recent series, Deadly Denial. After receiving no response, the Rocky sent a three-page letter June 10 detailing its major findings. Hallmark said DOL's office of public affairs would respond. A spokesman said they were working on a "reasonably dense" 6-page response and promised three times to deliver the information before Deadly Denial was published. That never happened.
DOL: Following a series of inaccurate articles in November 2007, the Department of Labor made several key officials available to the Rocky Mountain News in an attempt to again assist the writers' understanding of the EEOICPA program. Notwithstanding these efforts, the Rocky Mountain News published another series of articles in February 2008, which continued to substantially misinterpret how the program works and to assail the Department's motives. The Department (DOL) wrote to the Rocky Mountain News to address the errors published in that series to ensure that mistaken impressions regarding the EEOICPA program would be corrected. Although the Rocky Mountain News published a partial correction at that time, their portrayal of the program continues to be inaccurate and incomplete.
RMN: DOL did not alert the Rocky of any factual inaccuracies in articles published in November 2007. The Rocky did correct two facts in its February story: Shelby Hallmark was identified as an assistant Labor Secretary; he is a deputy assistant secretary. Also, the program had paid $1 billion in compensation for only Part E claims, not the whole program.
DOL: The RMN series strongly suggests — without any support whatsoever — that Congress intended all sick nuclear weapons workers would be compensated ("some 165,000 claims have been filed, but fewer than 43,000 have been paid") as a basis for indicting the Department of Labor for willfully "blocking" deserving claimants.
In fact, of the 165,782 claims filed as of July 29, 2008, only 124,686 were valid claims.
...Virtually all of the RNN allegations are examples of DOL being blamed for carrying out its legally required adjudicatory role, which is to determine when a worker has a disease, and whether that disease comes within the coverage of EEOICPA.
RMN: The Rocky reported clearly that members of Congress were concerned about costs if they compensated every sick worker, and thus created instead a program basing payment largely on scientific estimates of exposure. The Rocky also reported that in some cases, claims that DOL called "invalid" were actually labeled as such because of failures or mistakes on the part of DOL, not the claimant. For example, the Rocky recounted a case in which DOL said a claimant's case was "invalid" because of lack of medical documentation of a covered illness, when actually the claimant had mailed DOL 1,600 pages of medical documents. DOL lost the records, and found them only after the claimant died.
DOL: The RMN series frequently refers to "automatic compensation" situations and suggests DOL simply ignores these "requirements" to pay. The cited examples of "automatic compensation" are not "automatic" at all ...
RMN: If claimants are approved under Part B of the program, they are supposed to be notified that they are also automatically accepted under Part E and are eligible for wage loss and impairment ratings. The Rocky interviewed claimants, doctors and advocates who said that wasn't happening.
DOL: The RMN series once again alleges that DOL mounted a cost containment agenda in 2006.
This accusation is completely without merit. The RMN knows that the Secretary of Labor, senior DOL officials and OMB officials have testified to Congress on numerous occasions that there was no intent to limit payments to eligible claimants and no such plans were ever carried out, nor will they be.
RMN: DOL executive Hallmark had ongoing discussions with White House officials in 2006 about ways to cut costs in the compensation program. The Rocky series reported that Hallmark himself had testified to Congress that those plans were jettisoned.
DOL: The RMN series frequently accuses DOL of "changing the rules in midstream" to block claimants.
This is a distortion of the truth. Most of the rule and procedure changes cited are the responsibility of the National Institute for Occupational Safety and Health (NIOSH), not DOL, yet they were presented as "evidence" of DOL's intent to deny claims ... As we have carefully and repeatedly explained to RMN staff, including during a two-hour interview in February 2008 on this very subject, our bulletins in no way limit or restrict eligibility for the Rocky Flats SEC (special exposure cohorts) classes. Rather these bulletins explain to our claims examiners and others how to apply the class definition crafted by NIOSH. In fact, DOL's bulletins actually made demonstrating membership in the classes somewhat easier by including an additional Rocky Flats building in the list of those associated with the SEC class criteria ... The other alleged example is the RMN's assertion that DOL issued so-called "no pay lists" to deny workers "the benefits Congress intended for them." This is completely false ...
The RMN series is likewise critical of DOL for not using information found on the Internet to approve claims, finding, "The Rocky discovered the links through a simple search on an Internet database of disease studies" ... However, the information on toxic substances and related health effects used by DOL has been peer reviewed and published by the National Institute of Health's National Library of Medicine on the Hazardous Substances Database specifically for the purpose of identifying medical conditions that have been scientifically established to be occupationally linked ...
RMN: DOL makes its own rules on how to carry out its responsibiities under the law. Letters between DOL and NIOSH officials on the Rocky Flats SEC issue show NIOSH disagreed with DOL's decision to include an additional building in the list of those associated with the SEC class criteria — despite assistant secretary David James' assertion to the Rocky in November that "DOL does not designate buildings." At the start of this year, DOL gave new instructions to its claims examiners about how to determine if a Rocky Flats worker qualified for the special SEC status. Nothing had changed on NIOSH's part; only DOL had changed its rules on how to determine who fit the definition of the class. The result was that claimants told by DOL they were going to be compensated were suddenly told they weren't.
The Rocky reported clearly DOL's contention that the "no pay list" didn't prohibit acceptance of a claim, but the Rocky also interviewed claimants who had submitted evidence to support a claim of an illness on the "no pay list" and were ignored.
The Internet database the Rocky reported on is sponsored by the Collaborative on Health and the Environment, and also is peer reviewed, as is the NIH database. The Rocky also found that some information from the NIH database is not repeated in DOL's version, and that DOL withholds from claimants some parts of its database.
DOL: The RMN series repeats insinuations that DOL waits for claimants to die to avoid making payments.
This is categorically untrue and offensive ... The RMN series reiterated an earlier claim that DOL "delayed payments to Douglas DelForge, who died in 2008." In fact, DOL paid Mr. DelForge $187,500 and was working on an additional payment when he died unexpectedly. It is regrettable that the additional payment was not finalized before his death; but to suggest that DOL staff intentionally delayed that payment is wholly without merit.
RMN: The Rocky reported, based on DOL's own data, that one in 17 claimants who would have been compensated actually died before their claims were paid. DOL executive Hallmark told the Rocky in February that Douglas DelForge's claim for wage loss had been put on hold, but Hallmark did not know why. Hallmark told the Rocky in February that he had asked program staff for a report on why the DelForge case was delayed. DelForge's father, Cliff, wrote DOL asking why his son's case had been delayed. Program manager Peter Turcic wrote back, but did not answer the question.
DOL: The RMN series also criticizes DOL because cases are returned to NIOSH for a new dose reconstruction and implies that none of the returned cases are compensated ... Specifically, the RMN criticizes the reevaluation of exposure from "Super S" plutonium and suggests that the cases were sent back in the full knowledge that it was unlikely that the resulting new reconstructions would lead to cases being compensated ...
RMN: In his last interview with the Rocky in February, Hallmark said: "More people are going to go back through reworks and get a second denial. It's not going to be pleasant for these folks."
DOL: The RMN series asserts that DOL has ignored congressional concerns based essentially on a 2005 letter from several members of Congress commenting on the DOL interim final rule for Part E ...
RMN: The letter from a bipartisan group of senators, including Barack Obama, Hillary Clinton, Lamar Alexander and Orrin Hatch, said the Labor Department was "not at liberty to modify" the law.
DOL: The RMN series also asserts that "Criminals have the right to know what evidence is used against them, but sick nuclear weapons workers do not," a reference to their assertion that claimants are denied benefits based on "secret reports."
This accusation is false. In fact, the so-called "secret report" referred to is a DOL health physicist's technical report to the deciding official that is placed in the claimant's case file and is fully available to the claimant upon request. These reports are fully explained in the deciding official's decision; they are provided to the claimant upon request; and they are fully described in DOL's procedural bulletins, which are available to the public on the Internet.
RMN: According to DOL, no details from these reports, which can be used to deny cases, are given to claimants until after their case already has been denied. The Rocky reported that 14 claimants who are clients of Seattle attorney Tom Foulds were denied requested copies of their reports.
DOL: The RMN series states that program officials "considered in 2006 asking the labor department's inspector general to put a sick claimant under surveillance," and implies (based upon a single email) that surveillance is a common practice. It further claims that DOL has never published evidence of fraud in the program ... While fraud has been rare, at least one indictment has been handed down in connection with the EEOICPA program.
RMN: The Rocky also reported, based on another internal email it obtained, that DOL has considered sending someone undercover to a meeting of claimants and potential claimants. When U.S. Rep. Tom Udall of New Mexico asked DOL to answer the Rocky's question about how many times it had requested surveillance or other unannounced observation of claimants or potential claimants, DOL said "only a handful of cases have been referred" to the department's inspector general. It was not clear whether those "handful" of cases had included requests for surveillance. The Rocky could find no evidence of DOL announcing fraud in a nuclear weapons worker claim. The Rocky asked DOL for more information, but none has been provided.
DOL: The RMN series publishes a listing of all DOL employees' bonuses received in connection with EEOICPA from 2001 to 2007 and their amount, and suggests that these bonuses were wasteful and improper ...
RMN: The amount of bonuses paid to public employees with public money is a public record. The Rocky began asking DOL for explanations of the bonuses in March. DOL repeatedly declined to explain.
DOL: The RMN series criticizes the costs of administering the EEOICPA and repeats the assertion that the administration accounts for one-third of the total cost of the program ... With NIOSH and DOL costs taken together, the overall administrative cost ratio for Part B is 21 percent ...
RMN: The Rocky first requested on May 7 the amount of money spent on administrative expenses for the entire program, both Part B and Part E. So far, that information has not been provided by DOL. According to Congressional testimony of DOL executive Shelby Hallmark in 2007, DOL's administrative expenses were about a fourth of the amount paid in claims. NIOSH officials say their administrative expenses amount to a third of what is paid out in compensation on cases they handle. The Government Accountability Office, the investigative arm of Congress, said administrative costs for cases that pass through both DOL and NIOSH were nearly two-thirds of benefits through 2006.
DOL: The RMN series also discusses the case of E. Levi Samora Jr., stating that he was denied benefits for 5 years before his case was finally accepted. It argues that DOL had all of the records necessary for an acceptance of chronic beryllium disease (CBD) for all of those 5 years.
Although DOL is precluded by the Privacy Act from discussing the specifics of Mr. Samora's case, the RMN story fails to explain that the law requires specific tests be conducted to establish CBD coverage under Part B ...
RMN: DOL is aware that Levi Samora gave DOL a waiver of the Privacy Act granting permission to discuss his case with the Rocky in March. Also, DOL is aware that Samora got a diagnosis of full beryllium disease in 2003. Samora said nothing in his case changed between the time DOL denied it again in March and then granted it later that same month.
DOL: The RMN published a flow chart that appears to detail the EEOICPA claims procedures. However, this chart is completely inaccurate and inappropriately displays the official DOL seal in the background of the document suggesting that it is an official document.
RMN: The Rocky would be happy to correct any factual errors. The Rocky has twice asked DOL officials to specify any inaccuracies in the chart. Program director Peter Turcic, who is retiring, declined to point out any specific mistakes earlier this month. Assistant Secretary for public affairs, David James, has not responded to a similar request.
DOL: The RMN continually conflates the work of the Department of Labor and that of NIOSH, a branch of the Department of Health and Human Services (HHS), and invariably blames DOL for any difficulties arising from the HHS portion of the program ...
RMN: Congress gave NIOSH specific science-related duties in the program, but gave DOL responsibility for administering the program. DOL's involvement in NIOSH decisions is well documented. In October 2007, the GAO investigated DOL's "extensive involvement in commenting on draft NIOSH technical documents used to estimate radiation doses and returning cases to NIOSH for rework." The GAO found this "did not indicate a systematic effort to deny benefits paid to claimants, but Labor's rationale for its comments was not always transparent." GAO noted that DOL had made comments to NIOSH suggesting it was "overly favorable" to some claimants. But DOL told NIOSH it had raised the issue because some claimants might object to their claims being based on information that, though apparently "overly favorable," was from other work sites.
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HopiMedicineMan writes:
The US has 500 short range nukes, Russia has 6,000. Some are already on the Cuban island that the coward JFK would not invade when it was required. Medvedev is re-building northern Asia with oil money. A new cold war has begun, diplomacy will not overcome. No one negotiates successfully without superior military and economic strength. We've been weakened significantly under Bush/Reid/Pelosi. Russians would wipe out the Native peoples of this continent. Of course Democrats are doing it with abortion and alcohol.