Black Lung Benefits Improvement Act of 2019

II 116TH CONGRESS 1ST SESSION S. 2205 To ensure that claims for benefits under the Black Lung Benefits Act are processed in a fair and timely manner, to better protect miners from pneumoconiosis (commonly known as ‘‘black lung disease’’), and for other purposes. IN THE SENATE OF THE UNITED STATES JULY 23, 2019 Mr. CASEY (for himself, Mr. BROWN, Mr. KAINE, Mr. WARNER, and Mr. MANCHIN) introduced the following bill; which was read twice and re- ferred to the Committee on Health, Education, Labor, and Pensions A BILL To ensure that claims for benefits under the Black Lung Benefits Act are processed in a fair and timely manner, to better protect miners from pneumoconiosis (commonly known as ‘‘black lung disease’’), and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Black Lung Benefits 4 Improvement Act of 2019’’. 5 SEC. 2. TABLE OF CONTENTS. 6 The table of contents for this Act is as follows: 7 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 2 •S 2205 IS Sec. 1. Short title. Sec. 2. Table of contents. Sec. 3. Findings. TITLE I—BLACK LUNG BENEFITS PART A—IMPROVING THE PROCESS FOR FILING AND ADJUDICATING CLAIMS FOR BENEFITS Sec. 101. Mandatory disclosure of medical information and reports. Sec. 102. Attorneys’ fees and medical expenses payment program. Sec. 103. Clarifying eligibility for black lung benefits. Sec. 104. Restoring adequate benefit adjustments for miners suffering from black lung disease and for their dependent family members. Sec. 105. Treatment of evidence in equipoise. Sec. 106. Providing assistance with claims for miners and their dependent fam- ily members. Sec. 107. False statements or misrepresentations, attorney disqualification, and discovery sanctions. Sec. 108. Development of medical evidence by the Secretary. Sec. 109. Medical evidence training program. Sec. 110. Technical and conforming amendments. Sec. 111. Readjudicating cases involving certain chest radiographs. Sec. 112. Disclosure of employment and earnings information for Black Lung Benefits Act claims. PART B—REPORTS TO IMPROVE THE ADMINISTRATION OF BENEFITS UNDER THE BLACK LUNG BENEFITS ACT Sec. 121. Strategy to reduce delays in adjudication. Sec. 122. GAO report on black lung program. TITLE II—STANDARD FOR RESPIRABLE DUST CONCENTRATION Sec. 201. Standard for respirable dust concentration. TITLE III—ESTABLISHING THE OFFICE OF WORKERS’ COMPENSATION PROGRAMS Sec. 301. Office of Workers’ Compensation Programs. TITLE IV—SEVERABILITY Sec. 401. Severability. SEC. 3. FINDINGS. 1 Congress finds the following: 2 (1) The Black Lung Benefits Act (30 U.S.C. 3 901 et seq.) was enacted to provide health care and 4 modest benefits to coal miners who develop pneumo- 5 coniosis (referred to in this section as ‘‘black lung 6 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 3 •S 2205 IS disease’’) resulting from exposure to coal dust dur- 1 ing their employment. Yet the determination of a 2 claimant’s eligibility for these benefits often requires 3 complex, adversarial litigation. Resource disparities 4 between coal companies and such claimants are 5 widespread within the statutory and regulatory 6 framework of such Act. Comprehensive reforms are 7 necessary to ensure that coal miners are not at a 8 disadvantage when filing claims for benefits. 9 (2) The Government Accountability Office has 10 found that many claimants under the Black Lung 11 Benefits Act are not equipped with the medical and 12 legal resources necessary to develop evidence to meet 13 the requirements for benefits. Miners often lack 14 complete and reliable medical evidence, consequently 15 increasing the risk that the individuals who review 16 claims for benefits will be presented with insufficient 17 medical evidence. Similarly, without better options 18 for legal representation, significant numbers of such 19 claimants proceed with their claims through a com- 20 plex and potentially long administrative process 21 without resources that Department of Labor officials 22 and black lung disease experts note are important 23 for developing evidence and supporting their claims. 24 Only 42 percent of claimants are represented by an 25 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 4 •S 2205 IS attorney during the initial claims determination. Ab- 1 sent efforts to remedy administrative problems and 2 address structural weaknesses in the process for ob- 3 taining benefits, claimants with meritorious claims 4 will not receive benefits. 5 (3) Full exchange and disclosure between the 6 parties of relevant medical information is essential 7 for fair adjudication of claims under the Black Lung 8 Benefits Act, regardless of whether the parties in- 9 tend to submit such information into evidence. 10 Records of adjudications reveal that some mine oper- 11 ators’ legal representatives have withheld relevant 12 evidence from claimants, administrative law judges, 13 and, in some cases, even their own medical experts. 14 In several cases, the disclosure of such evidence 15 would have substantiated a miner’s claim for bene- 16 fits. Withholding medical information can endanger 17 miners by depriving them of important information 18 about their own health and the potential need to 19 seek medical treatment. 20 (4) Given the remedial nature of the Black 21 Lung Benefits Act, when an adjudicator determines 22 that evidence is evenly balanced, it is appropriate for 23 any resulting doubt to be resolved in favor of the 24 claimant. The Supreme Court vacated this long- 25 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 5 •S 2205 IS standing legal principle, not on substantive grounds, 1 but because its application conflicted with the re- 2 quirements of another statute. Such principle needs 3 to be reinstated in the Black Lung Benefits Act be- 4 cause it provides fairness and improves the adminis- 5 tration of benefits. 6 (5) Physicians who read lung x-rays as part of 7 pulmonary assessments used in proceedings for 8 claims under the Black Lung Benefits Act are re- 9 quired to demonstrate competency in classifying 10 chest radiographs by becoming certified as B Read- 11 ers by the National Institute for Occupational Safety 12 and Health (referred to in this section as 13 ‘‘NIOSH’’). However, past investigations have un- 14 covered that there have been NIOSH-certified B 15 Readers who systematically misclassified chest 16 radiographs while employed by coal operators or 17 their law firms for the purpose of opposing claims 18 under such Act. Where chest radiographs are needed 19 to establish entitlement to benefits, claimants should 20 have access to accurate interpretations so as to en- 21 sure the fair adjudication of such claims. 22 (6) Past instances of systematic 23 misclassification of chest radiographs that resulted 24 in survivors being denied benefit claims under the 25 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 6 •S 2205 IS Black Lung Benefits Act were not discovered until 1 years after the misclassifications had begun. In such 2 instances, survivors should be permitted to file a new 3 claim for benefits under such Act. However, a sur- 4 vivor is effectively barred from filing a new claim 5 one year after a decision regarding such benefits is 6 final, constituting an injustice that merits a remedy. 7 (7) Insufficient numbers of administrative law 8 judges in the Department of Labor coupled with 9 high numbers of cases filed under the Black Lung 10 Benefits Act and disruptions in Federal Government 11 functions caused by shutdowns have contributed to 12 extensive delays in adjudicating claims under such 13 Act and numerous other labor and employment laws. 14 A 2017 report by the Department of Labor Office 15 of the Inspector General found that the Office of 16 Workers’ Compensation Programs took an average 17 of almost a year to process a claim for benefits 18 under the Black Lung Benefits Act and that claims 19 appealed to the Office of Administrative Law Judges 20 took, on average, an additional 640 days to receive 21 a decision. These delays directly and severely impact 22 the lives of workers throughout the United States, 23 placing an undue financial and emotional burden on 24 the affected individuals and their families. 25 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 7 •S 2205 IS (8) Contrary to the intent of Congress, benefits 1 payments under the Black Lung Benefits Act do not 2 automatically increase with the rising cost of living. 3 Benefit payments are tied to the monthly pay rate 4 for Federal employees in grade GS–2, step 1. In 5 multiple fiscal years between 2010 and the enact- 6 ment of this Act, there was a pay freeze for Federal 7 employees, which had the effect of eliminating cost- 8 of-living adjustments for miners, surviving spouses, 9 and dependents under the Black Lung Benefits Act 10 during such years. 11 (9) A competent assessment of medical infor- 12 mation and testimony, which often involves multiple 13 physicians disputing a diagnosis, is necessary in de- 14 termining whether to award benefits under the 15 Black Lung Benefits Act. To ensure that a deter- 16 mination regarding a claim for benefits under such 17 Act is fair and accurate, regular training is needed 18 regarding— 19 (A) developments in pulmonary medicine 20 relating to black lung disease; 21 (B) medical evidence necessary to sustain 22 claims for such benefits; and 23 (C) the proper weight to be given to con- 24 flicting evidence. 25 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 8 •S 2205 IS (10) Black lung disease has been the underlying 1 or contributing cause of death of more than 78,000 2 miners since 1968. After decades of decline, the inci- 3 dence of coal miners with black lung disease is on 4 the rise. According to NIOSH, miners are devel- 5 oping advanced cases of the disease at younger ages. 6 In response, the Department of Labor took impor- 7 tant steps to combat the disease, including promul- 8 gating a rule in 2014 that reduced the allowed con- 9 centration of coal dust and addressed weaknesses in 10 the dust sampling system. Retrospective studies 11 should be continued to determine whether revisions 12 to the standards are necessary to eliminate the dis- 13 ease. 14 (11) To eliminate an avoidable delay in evalu- 15 ating claims under such Act, the Inspector General 16 of the Department of Labor has recommended legis- 17 lation that would authorize the Department of Labor 18 to have electronic access to miners’ earning records 19 held by the Social Security Administration. 20 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 9 •S 2205 IS TITLE I—BLACK LUNG BENEFITS 1 PART A—IMPROVING THE PROCESS FOR FILING 2 AND ADJUDICATING CLAIMS FOR BENEFITS 3 SEC. 101. MANDATORY DISCLOSURE OF MEDICAL INFOR- 4 MATION AND REPORTS. 5 Part A of the Black Lung Benefits Act (30 U.S.C. 6 901 et seq.) is amended by adding at the end the fol- 7 lowing: 8 ‘‘SEC. 403. MANDATORY MEDICAL INFORMATION DISCLO- 9 SURE. 10 ‘‘(a) REPORT.—In any claim for benefits under this 11 title, an operator that requires a miner to submit to a 12 medical examination regarding the miner’s respiratory or 13 pulmonary condition shall, not later than 21 days after 14 the miner has been examined, deliver to the claimant a 15 complete copy of the examining physician’s report. The ex- 16 amining physician’s report shall— 17 ‘‘(1) be in writing; and 18 ‘‘(2) set out in detail the findings of such physi- 19 cian, including any diagnoses and conclusions, the 20 results of any diagnostic imaging tests, and any 21 other tests performed on the miner. 22 ‘‘(b) DISCLOSURE.— 23 ‘‘(1) IN GENERAL.—In any claim for benefits 24 under this title, each party shall provide all other 25 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 10 •S 2205 IS parties in the proceeding with a copy of all medical 1 information developed regarding the miner’s physical 2 condition relating to such claim, even if the party 3 does not intend to submit the information as evi- 4 dence. 5 ‘‘(2) MEDICAL INFORMATION.—For purposes of 6 paragraph (1), the term ‘medical information’— 7 ‘‘(A) shall include the opinion of any exam- 8 ining physician, and any examining or non- 9 examining physician’s interpretations of 10 radiographs or pathology; and 11 ‘‘(B) shall not include— 12 ‘‘(i) any record of a miner’s hos- 13 pitalization or other medical treatment; or 14 ‘‘(ii) any communication from a min- 15 er’s representative to a medical expert. 16 ‘‘(c) REGULATIONS.—The Secretary shall promulgate 17 regulations regarding the disclosure of medical informa- 18 tion under this section, and such regulations may establish 19 sanctions for noncompliance with this section.’’. 20 SEC. 102. ATTORNEYS’ FEES AND MEDICAL EXPENSES PAY- 21 MENT PROGRAM. 22 Part A of the Black Lung Benefits Act (30 U.S.C. 23 901 et seq.), as amended by section 101, is further amend- 24 ed by adding at the end the following: 25 VerDate Sep 11 2014 22:32 Jul 29, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2205.IS S2205 kjohnson on DSK79L0C42 with BILLS 11 •S 2205 IS ‘‘SEC. 404. ATTORNEYS’ FEES AND MEDICAL EXPENSES PAY- 1 MENT PROGRAM. 2 ‘‘(a) PROGRAM ESTABLISHED.— 3 ‘‘(1) IN GENERAL.—Not later than 180 days 4 after the date of enactment of the Black Lung Bene- 5 fits Improvement Act of 2019, the Secretary shall 6 establish a payment program to pay attorneys’ fees 7 and other reasonable and unreimbursed medical ex- 8 penses incurred in establishing the claimant’s case, 9 using amounts from the fund, to the attorneys of 10 claimants in qualifying claims. 11 ‘‘(2) QUALIFYING CLAIM.—A qualifying claim 12 for purposes of this section is a contested claim for 13 benefits under this title for which a final order has 14 not been entered within one year [Text truncated for display. Full text available on Congress.gov.]