May 21, 2000 Revised Discussion Draft, subject to further revisions, suggestions, etc.
A BILL
S. __________
H.R. ____________
Nuclear Weapons Workers, Veterans And Residents Compensation and Health Act - (NWWVARCHA) of 2000
Initial Overview: The bill provides a full Department of Labor Due Process remedy, $350,000 lump sum payment to prevailing claimants and lifetime health care services for Nuclear Weapons Workers, Veterans And Residents injured by DOE operations, with a broader, more inclusive "interim presumption" than in other pending proposals.
SECTION-BY-SECTION ANALYSIS:
SECTION 1. CONGRESSIONAL FINDINGS AND PURPOSES: States the purpose of the legislation and sets forth Congressional findings, including much of the May 18, 2000 House of Representatives resolution on compensation. Includes an apology as in Rep. Kanjorski's original bill, and in Secretary Richardson's April 12 statement. This section further states that this legislation is not a welfare benefit and requires that it will be codified with Department of Labor legislation. (DOE's bill was to be codified in 42 U.S.C). To assist the Courts in statutory interpretation, the section states that this Act is enacted pursuant to the United States Constitution, Article I, Section 8, clauses 1,3,7,9,10,11,12,13,14,16,17 &18 and Amendments I, & XIV (Section 5).
SECTION 2. APPLICABILITY OF LONGSHORE AND HARBOR WORKERS' COMPENSATION PROCEDURES. Selectively incorporates provisions of the Longshore and Harbor Workers' Compensation Act regarding compensation procedure, based upon Sections in Black Lung Benefits Act, APA protections and provision for award of benefits based upon partial disability.
SECTION 3. DEFINITIONS. Adopts and clarifies definitions, drawing upon Black Lung legislation, DOE proposal and Voinovich-Kennedy and Strickland bills. Avoids certain narrow definitions used by DOE.
SECTION 4. INTERIM PRESUMPTION. The key to the success of Black Lung benefits legislation was its "interim presumption" to benefits for sick miners, based upon illness and employment. This section establishes a broader "nterim presumption" than in the DOE or Voinovich-Kennedy and Strickland bills. Rather than splitting worker illnesses into three separate conceptual categories, this section unites all claim in one easily-understood section, using unified medical and factual criteria. The section expressly avoids DOE's arbitrary, cabined division and adjudication of illnesses into three lengthy separate titles in the same bill. Persons with specified illnesses, exposures and status as DOE nuclear weapons site workers, residents or Atomic Veterans would be presumed qualified for lifetime benefits. The interim presumption takes note of DOE and contractor control over information: for example, certain sick workers whose medical files were "lost" would be held entitled to benefits if they are disabled.
SECTION 5. LIFETIME MEDICAL CARE AND BENEFITS. This is the key entitlements section: based on economic study, it establishes $350,000 as the lump sum payment for total disability, with monthly benefits for claimants and survivors, and lifetime medical care. The section is worded simply to avoid confusion. Survivors are entitled to additional payments for lost earning capacity and funeral expenses. Persons entitled to continuing benefits shall also receive monthly compensation for either total or partial disability at the current monthly rate provided under the Black Lung Benefits Act or Federal Employee Compensation Act, whichever is greater. The section finally provides that benefits paid under this act shall not be taxable as income and shall not be attachable by any creditor, insurance company, third party payor, employer or other entity. (Meanwhile, under Section 16, groundbreaking new medical studies would be performed on a voluntary basis, with full informed consent, which would help provide better health care for NWWVARCHA beneficiaries, and would further define qualification for benefits).
SECTION 6. PROMULGATION OF FUTURE MEDICAL STANDARDS; TIME FOR FILING OF CLAIMS; ACTION;FORCING MECHANISMS; RECONSIDERATION OF DENIED CLAIMS. This section builds upon Voinovich-Kennedy and Strickland bills, providing for an even stricter mechanism for forcing timely decisions. It provides for reconsideration of denied claims in light of new evidence.
SECTION 7. FIELD OFFICES; INFORMATION AND OUTREACH; "PLAIN ENGLISH" AND USE OF NATIVE AMERICAN AND ALASKA NATIVE LANGUAGES.
Based upon the Black Lung Benefits Act and experience with RECA, this section will help assure that all potential beneficiaries are notified of their rights and have their claims processed efficiently and effectively, in their home towns, in their own languages. The DOE draft provided for no field offices and no translators, and excluded most of the Native-American victims of the nuclear weapons complex -- uranium miners, their widows, their orphans and their heirs, who would have been given second-class legal status under the DOE proposal.
SECTION 8. HEARINGS, APPEALS, JUDICIAL REVIEW AND SUBPOENAS; APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT; TRANSLATORS; HEARING LOCATIONS; REASONABLE ACCOMMODATION; STATEMENT OF REASONS; REASONABLE ATTORNEY FEES, COSTS AND EXPENSES; CRIMINAL PENALTIES; PROMPT PAYMENTS; NO MEMORANDA OF UNDERSTANDING.
This section provides for rights to hearings, appeals, judicial review, subpoenas, discovery, Administrative Procedure Act, translators, hearing locations, reasonable accommodation of disability, statement of reasons for denial, use of Department of the Interior judges for hearings for Native American claimants, open public hearings, Administrative Law Judge status or Presidential appointment of all DOL appeal board members, statement of reasons for denials, a ban on any "gag"orders in settlements and limits on alternative dispute resolution to settlement judges (specially qualified Administrative Law Judges), disclosures by and recusal of Administrative law Judges, confidential peer review to assure judicial independence, awards of reasonable attorney fees to prevailing counsel and as interim attorney fees, a provision for attorney fee enhancement, a ban on solicitation, contingency fees and gratuities (with criminal penalties for same). The section also requires all benefits, medical expenses, and attorney fees to be paid promptly, subject to provisions of the Prompt Payment Act (payment within 30 days). The section also requires keeping of detailed records and publication by the Office of Workers Compensation Programs (OWCP), Benefits Review Board (BRB) Office of Administrative Law Judges and Deputy Commissioner shall keep and publish on the Internet detailed statistical on the time it takes to decide claims and fee petitions under this Act, and to disburse funds to claimants and their attorneys, showing for each office, judge and type of case the time that is taken to reach decisions after the close of the record. The section also bans any written or unwritten understandings, agreements or relationships between DOE and DOL that are not consistent with this Act and published for notice and comment rulemaking in the Federal Register. In contrast, DOE tried to maintain control in its April 12, 2000 proposal. DOE's bill had a provision for a Memorandum of Understanding (MOU) between the Department of Labor and the Department of Energy essentially treating DOL as if it were DOE's contractor, instead of an independent agency of government. The Black Lung Benefits Act contains a criminal solicitation provision: based upon that precedent, all violations of the solicitation and contingency fee bans, peer review confidentiality requirements, and the ban on improper agreements, understandings or relationships between DOE and DOL are made crimes under the Act.
SECTION 9. MEDICAL EVIDENCE AND EXAMINATIONS. UTILIZATION OF PERSONNEL AND PROCEDURES; EVIDENCE REQUIRED TO ESTABLISH CLAIM; MEDICAL EVIDENCE; SWORN DECLARATIONS; AUTOPSY REPORTS; REIMBURSEMENT OF EXPENSES. This section follows the Black Lung Benefits Act and provides for standards and proof relating to medical evidence, sworn declarations, autopsy reports, independent medical examinations, and reimbursement of expenses incurred seeking benefits. DOE's bill contained no such provision.
SECTION 10. "FUND" DEFINED; LIABILITY OF OPERATORS TO UNITED STATES FOR REPAYMENTS TO FUND; PROCEDURES APPLICABLE; RATE OF INTEREST.
Patterned after the Black Lung Benefits, Act, this section establishes a fund based upon mandatory fees assessed upon present and former Operators of DOE facilities, based on a formula considering their contribution to pollution in the form of toxicants and radionuclides emitted and buried. This section makes the polluters pay for the compensation, health care, research and investigation provided by this Act. This internalizes the external costs of DOE's inherently dangerous activities. DOE's bill contained no such provision.
SECTION 11: NON-EXCLUSIVE REMEDY AGAINST CONTRACTORS, AND SUBCONTRACTORS; PRESERVATION OF EXISTING CONSTITUTIONAL, CIVIL AND STATUTORY RIGHTS.
This section preserves rights to sue DOE contractors and subcontractors and all other existing constitutional, civil and statutory rights. DOE's bill contained no such provision. This section further provides that:
No claim under this Act shall be denied in whole or in part by any epidemiological, risk analysis or dose reconstruction study funded in whole or in part by the Department of Energy, its predecessors, any other U.S. Government agency or its contractors, provided further that a claimant may introduce such study as a party opponent admission or declaration against interest in order to help establish entitlement to benefits. No claim granted under prior law shall be denied, reviewed or reversed based upon any such epidemiological, risk analysis or dose reconstruction studies, or the benefits in any way reduced or discontinued.
This provision assures that none of the decades of DOE-funded studies can be used to prejudice rights under this action. The subsection, along with Section 20, remove exemption for inherently dangerous activities under the Federal Tort Claims Act "discretionary function exemption." Remedies under both FTCA and this Act are preserved, "and in the event that a person is unsuccessful under a tort suit, there shall be no res judicata, collateral estoppel or other bar against a claim for compensation under this Act." Finally, the section abolishes the Feres doctrine, Feres v. United States, 340 U.S. 135 (1950), "with respect to intentional or negligent exposures to radionuclides and toxicants compensable under this Act."
SECTION 12. COLLATERAL SOURCE RULE; NONRECOUPMENT. This section follows the intent of the Voinovich-Kennedy and Strickland bills in protecting beneficiaries from repayments to collateral sources of benefits.
SECTION 13. REPORTS. This section provides that the "Secretary of Labor shall prepare an annual report on the administration of this title and the effectiveness of the program in meeting the compensation needs of the persons protected by this legislation." This is taken from the Black Lung Benefits Act.
SECTION 14. STATUTORY CONSTRUCTION. As an aid to statutory construction, this section provides that "This is remedial legislation and is to be liberally construed."
SECTION 15. NON-DISCRIMINATION, WHISTLEBLOWERS AND PROHIBITED ACTIVITY. This section builds upon the Voinovich-Kennedy bill and the Black Lung Benefits Act, as it revises, reforms and revives nuclear and environmental whistleblower laws by providing a uniform one year statute of limitations and applying each such law equally to all federal, state and local agencies, activities and contractors, just as it applies to the private sector, as was recommended by the American Bar Association House of Delegates in February 1990. The controversial Brown and Root v. Donovan decision of the Fifth Circuit Court of Appeals (requiring that environmental whistleblowers must first report to a government agency before receiving protection) is expressly overruled by this Section. The burden of proof for all whistleblower laws is also changed to that in the 1992 Amendment to the Energy Reorganization Act.
SECTION 16. CONTRACTS AND GRANTS; STUDIES; CONSENT; INDEPENDENT MEDICAL CARE. This section is patterned after Black Lung Benefits Act legislation and is intended to aid in the development of independent, worker-run and resident-run health clinics free from DOE control or influence, with informed consent and followup required for all studies pursuant to this Act. The section further provides:
Any grant made pursuant to this subjection shall be conditioned upon complete decisional and organizational independence of the United States Department of Energy, its contractors and subcontractors, directly or indirectly. No benefits may be conditioned upon consent to participate in a study under this subsection. No grant under this section shall be made to any Department of Energy contractor, subcontractor, consortia or other organization with an organizational conflict of interest. Any violations of this subsection shall be a felony, punishable by a $10,000 fine and one year imprisonment.
he studies authorized are required to be multidisciplinary in character and a listing of specific issues that must be studied is included, with specific toxicants, diseases, conditions, potential biomarkers and methodologies specified. Sums of up to $200,000,000 annual appropriations are authorized. There is no parallel provision in DOE legislation or in the Voinovich bill. The key difference is that that NWWVARCHA is all-inclusive and seeks to improve health, not simply "dispose" of claims at a low dollar figure, without paying for lifetime health care..
SECTION 17. PENALTY FOR MATERIAL MISREPRESENTATIONS OR FALSE STATEMENTS. DOE's bill had only a one-sided penalty on false statements to obtain benefits. DOE admits that DOE and contractors went to great lengths to go to fight workers seeking compensation, see Atomic Energy Commission Order 0521, the legislation makes this criminal penalty apply equally to false statements intended to deny as well as grant benefits.
SECTION 18. CRIMINAL PROSECUTION OF DOE SITE CRIMES; ADVERSE INFERENCES FROM DOE OR CONTRACTOR MANAGERS' REFUSAL TO COOPERATE IN EVIDENCE DEVELOPMENT. There is no comparable provision in the DOE bill. This Section establishes the principle that no crimes committed on DOE reservations should go unpunished, and that there is no statute of limitations on homicide. The section establishes an independent Office of Special Counsel and a Multi-District Judicial Panel on Nuclear Weapons Criminal Prosecution "to investigate crimes arising on, in and around DOE and predecessor agency and contractor operations." The section requires timely DOL " referrals of all persons and organizations, including Department of Energy employees, contractors, subcontractors and employees, whenever there is reasonable cause to believe may have violated any federal criminal law, including homicide, reckless endangerment, obstruction of justice, false claims or fraud against the government, arising out of the operation of the nuclear weapons complex." Sums of up to $50,000,000 per year are authorized for such Office of Special Counsel and Multi-District Judicial Panel on Nuclear Weapons Criminal Prosecution. The Office of Special Counsel is "authorized to employ former state court prosecutors as well as FBI agents, and experts on forensic evidence." The legislation further provides that "due to organizational conflicts of interest, Justice Department career prosecutors shall be avoided unless they sign a contract to guard against revolving-door conflicts of interest." The section further prevents a criminal investigation or invocation of the Fifth Amendment from delaying a claim proceeding, except with consent of the claimant. The section further provides that the "The Secretary of Labor shall draw an adverse inference of entitlement to benefits from a DOE or contractor manager refusing to answer questions, refusing to provide information in response to a subpoena, refusing to provide information in response to discovery requests, or otherwise failing to cooperate or assist the Department of Labor in developing evidence."
SECTION 19. INTERVENTION, AMICUS CURIAE AND PARTIES; INDEPENDENT DECISION-MAKING. This section defines one type of party litigant in a proceeding under this Act -- the victims (just as in Social Security disability cases). The legislation creates a nonadversarial litigation environment intended to grant just claims and avoid undue and unfair delays. While intervention and amicus curiae are allowed, neither DOE nor its contractors are permitted status as party litigants before DOL. [Intervention is also expressly allowed under Section 8(e)(2) of this Act for persons disputing third party discovery requests allowed pursuant to Section 8(e)(1).] This section finally provides that there is no justification for DOE contractors seeking refunds or for DOL denying benefits as a result of the status of the Fund, stating "The amount or liability of DOE contractors to the Fund, or the liability of the Fund to claimants, shall not be affected by the number of persons found entitled to benefits under this Act, except that Congress may amend the amount of the mandatory fee in light of wisdom and experience.
SECTION 20 This section may be cited as Federal Tort Claims Reform and Seventh Amendment Restoration Act (FTCRASARA) of 2000. It amends the Federal Tort Claims Act, 28 U.S.C. 2680(a) by striking all of the existing language and inserting in lieu of the following:(a)(1) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a valid statute or regulation; or (2) Any claim based upon the reasonable exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, except for inherently dangerous activities as defined by the common law, and including but not limited to:
(A) the intentional setting of fires, explosion of bombs or flooding of property;(B) weapons of mass destruction including nuclear weapons, nerve gas and conventional ordinance; or the manufacture, testing and transportation or disposal of such weapons, or their mining, milling, or manufacture of components; or the decontamination and decommissioning of plants, mines and other facilities, vehicles, containers, or other things associated with such weapons, including but not limited to:
(i) all DOE, contractor and supplier plants and laboratories;(ii) all past and present actions by DOE and predecessor and Naval nuclear propulsion facilities;(C) concealment of environmental, safety and health hazards;(D) regulation, handling and disposal of toxic, hazardous, carcinogenic,mutagenic or teratogenic materials; or(E) launching Special Nuclear Materials into orbital or outer space.
This section further sets forth a Seventh Amendment Restoration Amendment:
In all trials pursuant to the Federal Tort Claims Act, there is hereby created a right to jury trials by six or twelve person jury, as requested by at least one of the parties to such litigation, and the jury shall decide all questions of fact on any subject, including but not limited to inherently dangerous activities, negligence, intent to commit civil rights violations, liability and damages. This section further provides that the statute of limitations under the amended FTCA section for past governmental inherently dangerous activities shall not begin to run until after the effective date of this Act.
SECTION 21. NUCLEAR WEAPONS MEMORIAL. This section provides funding for for Secretary Richardson's idea for a memorial to America's Cold War victims.
SECTION 22. CONFORMING AMENDMENTS. [INSERT HERE -- This could include, upon request of affected groups, the Reform/Abolition of RECA, etc., incorporating 2000 RECA Amendments as to eligibility, to be drafted pursuant to further discussion with uranium miners, Tribes and Downwinders]
SECTION 23. AUTHORIZATION OF APPROPRIATIONS. This section authorizes necessary funds to carry out DOL responsibilities under this Act and makes such sums available until expended.
SECTION 24. SEVERABILITY. This section makes the clauses of this Act severable if invaldated, keeping the rest of this Act in full force and effect.
SECTION 25. EFFECTIVE DATE. This section provides that this "Act shall be effective within 30 days of its enactment."