Testimony

Statement by
John Howard, M.D., J.D., Director
National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services

on
Hearing: HHS Activities Under the Energy Employees Occupatoinal Illness Compensation Program Act
before the
The Subcommittee on Workforce Protections, Committee on Education and the Workforce, United States House of Representatives

October 30, 2003

Mr. Chairman, and members of the Subcommittee, my name is John Howard and I am the Director of the National Institute for Occupational Safety and Health (NIOSH), part of the Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services (HHS). I am joined today by Mr. Larry Elliott, Director of the NIOSH Office of Compensation Analysis and Support.

CDC's mission is to promote health and quality of life by preventing and controlling disease, injury and disability. NIOSH is a research institute within CDC that is responsible for conducting research and making recommendations to identify and prevent work-related illness and injury. Within this mission, NIOSH is the lead federal agency for research on the occupational health of U.S. workers, including nuclear weapons workers.

I am pleased to appear before you today to provide testimony on the status of HHS activities under the Energy Employees Occupational Illness Compensation Program Act ("the Act"). Under the Act, HHS, with the assistance of NIOSH, is charged with conducting a variety of compensation-related activities important to nuclear weapons workers and their families. My testimony today will focus on the set of activities we conduct to support the Department of Labor (DOL), which administers the federal compensation program under "Part B" of the Act. I will also briefly summarize other HHS activities under Part D and a separate provision of the Act relating to residual contamination.

Under Executive Order 13179, issued on December 7, 2000, the President charged HHS with five specific responsibilities related to Part B. I will briefly describe each of these five activities and summarize its progress.

Advisory Board on Radiation and Worker Health

First, the President charged HHS with administering a new federal advisory committee, the "Advisory Board on Radiation and Worker Health," to advise HHS on its activities under Part B. I will note the specific advisory roles and contributions of the Board in context throughout this testimony.

HHS nominated and the President appointed the initial members of the Board in 2001. The Board is chaired by Dr. Paul Ziemer, an internationally recognized health physicist, and includes 11 members who are scientists, physicians, or representatives of nuclear weapons workers, a membership which reflects the Act's requirement that the Board include a balance of scientific, medical, and worker perspectives.

The Board held its first meeting in January of 2002. The Board has been exceptionally active, having met a total of 18 times in the first 21 months since the beginning of 2002; most recently, on Tuesday and Wednesday of this week in St. Louis.

Regulation for Dose Reconstructions and Cancer Causation

Second, HHS was charged with promulgating two regulations required under the Act. One regulation established methods for conducting radiation "dose reconstructions" for cancer claimants. Dose reconstruction is a science-based process for retrospectively estimating the amounts and types of radiation doses incurred by a person. Since dose reconstructions for a compensation program are very different from those used in research, HHS developed methods of dose reconstruction that build upon established approaches and principles of this discipline but are tailored to the unique purposes and needs of the Act, particularly striking a balance between the needs for accuracy and efficiency in a compensation program. This effort included substantial scientific work on the part of NIOSH to develop specialized analytical methods and tools needed to estimate the occupational radiation doses of nuclear weapons workers.

The Act required a second regulation to establish guidelines by which DOL would determine whether the cancer of an employee was "at least as likely as not" related to the radiation doses estimated for that employee through a dose reconstruction. This regulation for determining "probability of causation" (the probability that a person's cancer was caused by radiation), required the further development of a scientific tool for calculating probability of causation. This tool, the "Interactive RadioEpidemiological Program," or "IREP," is a complex computer program that uses "risk models" for associating radiation doses with risk information on different cancers. This tool estimates the probability of disease causation specific to each employee's unique history of exposures to different types and quantities of radiation during the course of his or her employment. The final development of this tool was undertaken by NIOSH in collaboration with the National Cancer Institute, which had created the initial version of this tool in the 1980s, and was in the process of updating it as a result of an extensive scientific review by the National Research Council.

HHS promulgated both of these regulations in final form in May 2002, after issuing a notice of proposed rulemaking for the probability of causation regulation and an interim final rule for the dose reconstruction regulation in October of 2001 and obtaining and considering public comments. The Board also reviewed and advised HHS on both of these rules during the public comment period and supported the final rules. The rules are based on the best available scientific evidence and have widely employed a "benefit of the doubt" policy to ensure that important limitations of science and available data are handled in ways that do not penalize the claimant. The rules are designed with efficiencies necessary to serve the high claims case load expected then, and experienced now. The rules also are designed in recognition of the fact that science is always improving. Hence, the rules allow for new scientific findings and consensus to be integrated into dose reconstruction methods and probability of causation determinations as they become available, after proper scientific consideration.

Dose Reconstruction Program

The third responsibility of HHS, delegated to NIOSH, is the development and administration of a program of dose reconstruction to serve cancer claimants under the Act. This is the largest task assigned to HHS. The production scale and scientific complexity of the dose reconstruction program required by the Act are significant compared to other federal compensation programs requiring dose reconstructions.

I will report on the progress of this dose reconstruction program in two parts. First, I will outline the major milestones in the development of the program and the Activities that remain to be completed. Second, I will report on the current status of dose reconstructions, both completed and under way.

Program Development Milestones. NIOSH began developing this dose reconstruction program in the summer of 2001. We have accomplished the following milestones:

June December 2001

  • Recruited an initial group of scientists and support staff

  • Acquired a temporary facility to house program staff

  • Published interim final dose reconstruction regulation

  • Published notice of proposed rulemaking for probability of causation regulation

  • Established claimant interview procedure

  • Developed the principal scientific tools and procedures

  • Developed the records and data management systems to handle the high volume of claims and DOE data and to track and manage dose reconstructions

2002

  • Expanded internal staff

  • Published final dose reconstruction and probability of causation regulations

  • Developed implementation guides for performing dose reconstructions

  • Tested tools and procedures using initial dose reconstructions

  • Awarded a contract to build capacity externally, employing health physicists throughout the U.S.

  • Established contractor-related procedures and trained contractor staff

  • Expanded the records and data management systems

  • Began locating and obtaining facility-specific data from DOE and other sources

  • Assisted DOE in establishing DOE's record retrieval systems and related inter-agency policies

2003

  • Continued expanding internal and contractor staff

  • Initiated the development of site profiles

There are several important points to note about the development of this program. First, while NIOSH has some of the leading expertise in conducting dose reconstructions for scientific purposes, the practical challenges of conducting dose reconstructions in a "production mode" for a compensation program are new to us. One key example is the need for site profiles.

A site profile is a compilation of basic information about radiation monitoring practices and radiation exposures at a facility over time. At the outset of developing the dose reconstruction program, we thought we could complete dose reconstructions in tandem with developing site profiles. By doing both at once, we thought we could complete a substantial number of dose reconstructions to limit the accrual of a backlog. We learned, however, that to be able to complete dose reconstructions in production mode for a compensation program with a high volume of cases, we had to complete initial versions of the site profiles first. It is prohibitively inefficient to collect the general site-related information used in dose reconstruction on a case-by-case basis.

We also continue to learn on the job about the logistical demands of "scaling up" to production mode. The demands have been exceptional for unique computerized data systems, for recruiting and training a nationally dispersed workforce of experts and diverse professionals, for establishing operational procedures sufficient to guide a dispersed workforce, and for establishing effective communications within our dose reconstruction workforce and with the claimant population.

A second point concerning the development of this program is that the Department of Energy (DOE) has had to develop systems for identifying and retrieving records requested for individual cases. While DOE has extensive holdings which are of great value for dose reconstructions, DOE did not have sufficient infrastructure to identify and produce relevant records on the scale required for NIOSH to conduct dose reconstructions under the Act. Over this past year, DOE has improved this capacity enormously.

Finally, as we go forward, the Advisory Board will have an important role in the further development of the dose reconstruction program. The Board is charged under the Act with reviewing and advising NIOSH on the scientific validity and quality of the dose reconstruction program. This will include an independent review of a random sample of completed NIOSH dose reconstructions. The Board, with administrative assistance from NIOSH, recently contracted for independent scientific support and will initiate its review this year.

Status of Dose Reconstructions. Most cancer claimants must obtain a dose reconstruction from NIOSH after the Department of Labor verifies that their claim is for a covered employee with cancer. DOL uses the results of this dose reconstruction and the HHS guidelines for probability of causation to determine whether the cancer of the employee was at least as likely as not to have been related to their exposure to radiation in the performance of duty.

Health physicists conduct dose reconstructions using radiation monitoring data, when it is available, as well as information on the radiation monitoring practices, the radiation sources to which a person was exposed, and the processes and environment through which the exposures occurred. NIOSH obtains the information from DOE, the claimants, and other sources. The process of conducting a dose reconstruction is completed in 11 steps, as follows:

  • Upon receiving a claim from DOL, NIOSH creates a case file, notifies the claimant(s), and requests personal exposure data from DOE or other sources, as appropriate.

  • NIOSH receives and reviews personal exposure data from DOE or other sources.

  • NIOSH requests additional personal exposure data from DOE or other sources, as necessary.

  • NIOSH interviews the claimant(s) and coworkers to evaluate the completeness, quality, and adequacy of the DOE data.

  • The claimant(s) and co-workers review their interview summary and correct or supplement it, as necessary.

  • NIOSH assigns a health physicist to conduct the dose reconstruction, using personal and site-specific data from the site profile and other sources.

  • NIOSH requests additional data from DOE or other sources, as necessary, based on informational needs identified by the health physicist.

  • NIOSH submits a draft dose reconstruction report to the claimant(s) for review.

  • NIOSH conducts a close-out interview with the claimant(s) to explain the dose reconstruction and to obtain any additional information from the claimant. NIOSH revises the draft dose reconstruction report and resubmits it to the claimant(s), when the claimant(s) provides additional information.

  • The claimant(s) signs a form closing the record, which allows NIOSH to complete the dose reconstruction.

  • NIOSH transmits the final dose reconstruction report to the claimant(s) and to DOL.

To summarize our progress on these dose reconstructions as of October 24, 2003, we had received more than 14,000 cases from DOL requiring dose reconstructions. According to the process outlined above, we have made more than 12,000 requests to DOE for data. Some requests relating to a single employee are made to multiple DOE sites at which the employee might have worked over his or her career. In addition, NIOSH often requests data from sources other than DOE, especially for cases involving employees of Atomic Weapons Employers. We have completed dose reconstruction interviews of more than 9,500 claimants and co-workers. We have assigned almost 1,800 cases to health physicists to conduct the dose reconstructions, usually after the completion of site profiles related to the case. We have drafted more than 250 dose reconstruction reports that are currently being reviewed by claimants. The claimants have up to 60 days for this review. We have completed 750 dose reconstructions and sent them back to DOL to make a final decision on the claim.

As this summary indicates, we have a substantial backlog of dose reconstructions to complete. This backlog arose because we had to begin accepting dose reconstruction requests in 2001, long before we had the structure or capacity to complete any dose reconstructions.

At this point, we steadily are increasing our capacity to complete dose reconstruction. Much of our program development is completed, as I described earlier in this testimony. The following chart shows our progress in producing completed dose reconstructions.3

3 The chart shows the number of dose reconstructions completed in July declined. This resulted from the upgrading of the computerized database used to support dose reconstructions and from quality control activities."

The October data in this chart covers activity through October 24 of this year. We expect much greater increases ahead in the number of dose reconstructions completed monthly.

While our capacity is increasing, the chart below shows that the number of new cases requiring dose reconstructions has been decreasing since the fourth quarter of Fiscal Year 2002. This declining number of new cases also will help us to reduce the backlog of cases in 2004.

Special Exposure Cohort

The fourth and fifth responsibilities of HHS under Part B of the Act are directly related to the dose reconstruction program. They concern making additions to the "Special Exposure Cohort" ("the Cohort") established by the Act.

The Act provides members of the Cohort with a different claims adjudication procedure than that applied to most cancer claimants. Claims for members of the Cohort who have any of 22 "specified cancers" designated by the Act do not require dose reconstructions, nor do they require a determination by DOL of probability of causation.

Congress included in the Cohort certain employees of three DOE facilities, known as the gaseous diffusion plants, as well as employees of a nuclear weapons test site in Amchitka, Alaska. In addition, Congress authorized the President (delegated to the Secretary of HHS) the authority to designate other classes of employees to be members of the Cohort, subject to Congressional review, provided that each class of employees meets two tests:

  • it is not feasible to estimate with sufficient accuracy the radiation dose that the class received; and

  • there is a reasonable likelihood that such radiation dose may have endangered the health of members of the class."

This authority allows HHS to designate classes of employees for addition to the Cohort in situations in which a class of employees had potential radiation exposure but the available records and data are insufficient for NIOSH to complete dose reconstructions.

HHS is in the final stage of promulgating a regulation that will allow it to implement this authority. The regulation will set out procedures, as required by the Act, by which classes of employees can petition HHS for addition to the Cohort, and by which HHS will consider such petitions. HHS issued an initial Notice of Proposed Rulemaking (NPRM) to issue such procedures in June 2002. In response to public comments, NIOSH made substantial changes to the proposal, and issued a second NPRM in March of 2003. The final regulation, which takes into account all of the public comments, is drafted and undergoing review. In addition, NIOSH is developing guidelines for implementing the regulation.

Once the Cohort regulation is promulgated, HHS will solicit and begin considering petitions by classes of employees. The process of considering petitions will involve the review of such petitions by NIOSH and by the Board, which will advise HHS on each petition. Some of the technical aspects of the NIOSH review will be similar to those of dose reconstructions, since a principal question that must be addressed is the feasibility of conducting dose reconstructions for members of the petitioning class. The final step in the petition process, as required by the Act, will be an opportunity for Congress to review each designation by the Secretary of HHS of classes of employees to be added to the Cohort. These decisions to add a class to the Cohort become effective in 180 days, unless Congress provides otherwise.

Part D of the Act

HHS is also charged with carrying out two activities of the Act that are not under Part B, the federal compensation program. HHS has a small but important role under Part D of the Act, which requires DOE to establish a program of assistance to certain employees of DOE contractors in state workers' compensation proceedings. DOE operates a set of physician panels that evaluate the relationship between an illness of a DOE employee and potentially toxic exposures in the employee's workplace. When the findings of such evaluations affirm a work-related illness, meeting criteria specified by DOE in regulations, then DOE has procedures for assisting the employee in pursuing a state workers' compensation claim.

HHS is responsible for appointing the physicians who serve on the DOE physician panels. HHS has made several rounds of appointments to date, having presently appointed a total of 123 physicians to serve on the panels. HHS continues to recruit additional physicians for the panels and is presently reviewing another round of nominations.

Residual Contamination

Finally, pursuant to Public Law 107-107, HHS is responsible for conducting a residual contamination study. The study, conducted by NIOSH, evaluates whether significant residual contamination remained at atomic weapons employer or beryllium vendor facilities after such facilities had concluded work for DOE or its predecessor agencies.

HHS submitted a progress report on this study to Congress in December 2002. The progress report found that about half of atomic weapons employer facilities needed further evaluation. Of the half that had been fully evaluated, most sites had little potential for significant residual contamination. On the other hand, most of the beryllium vendor sites were fully evaluated and continue to have potential for significant contamination. The final report will be issued shortly and will provide more complete information.

Conclusion

In conclusion, HHS and NIOSH are working intensively to meet our responsibilities under the Act. The major tasks are difficult because they employ dose reconstruction expertise and systems on an unprecedented scale. We remain keenly aware, however, that the nuclear weapons workforce and their families are relying on us to accomplish this work as quickly as possible. We understand that "doing the best we can" is not good enough from the perspective of our claimants, some of whom are dying of cancer or have lost a spouse, parent or sibling to cancer. As we proceed, we will continue to strive to produce dose reconstructions that are as timely as possible, that are fair, and that are grounded in the best available science.

Thank you for this opportunity to provide an update on the status of HHS activities under the Act. Mr. Elliott and I would be pleased to respond to any questions of the Subcommittee.

Last Revised: October 30, 2003