Black Lung Benefits Program
Administrative and Structural Changes Could Improve Miners' Ability to Pursue Claims
GAO-10-7, Oct 30, 2009
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The Department of Labor (DOL) Black Lung Benefits Program provides medical and income assistance to coal miners who suffer total disability or death due to lung disease caused by coal dust. To provide insight into DOL's administration of the Black Lung Benefits Program, GAO is reporting on (1) how long it takes to process and resolve black lung benefits claims; (2) at what rate and for what reasons black lung claims and appeals are denied by DOL; and (3) what barriers, if any, confront miners or their survivors in pursuing their claims. GAO collected and analyzed black lung claims and appeals data and interviewed officials at relevant federal agencies, national organizations, and selected local organizations at two sites.
In fiscal year 2008, DOL issued decisions on claims in less than 1 year on average at each stage of adjudication, yet according to officials and experts, the appeals and remands (claims sent back to the prior stage of review for further consideration or development) that follow decisions can keep claims in the system for years. Although DOL does not track how long all claims remain in the claims and appeals process, we examined 763 miner claims filed between 2001 and 2008 that were ultimately awarded benefits by mine companies. We found that mine companies agreed to pay benefits for about 73 percent of these claims within 3 years from the date of the initial claim, roughly 24 percent of claims in 3 to 6 years, and the remaining 4 percent in 6 to 8 years. The program also contains financial incentives for both miners and mining companies to keep claims in the appeals process. For example, some miners may extend the appeals process to maintain their payment of interim benefits. Factors that add additional time to the appeals process also include allowing time for claimants to find legal representation and waiting until there are sufficient cases in rural areas before sending a judge to hold a hearing. In 2008, most claims (87 percent) were initially denied. Few claimants areable to prove they meet all of the program's eligibility requirements, and for certain cases, required conditions are difficult to prove. For example, some miners--those with a history of smoking--develop lung disease associated with long-term exposure to coal mine dust but which frequently cannot be detected by X-ray. Though current science does not allow a medical distinction between lung disease caused by smoking and by coal mine dust, regulations require that claimants establish that their lung disease is significantly related to or substantially aggravated by coal dust. In such cases, judges told us they rely heavily on nonclinical evidence, such as physician credentials, length of depositions, and level of sophistication of evidence presented by claimants and mine operators to determine claimant eligibility. According to some DOL administrative law judges, mining company doctors are usually better credentialed and produce lengthier and more sophisticated medical reports and evaluations. GAO found that coal miners face a number of challenges pursuing federal black lung claims, including finding legal representation and developing sound medical evidence to support their claims. DOL officials identified miners' lack of resources, the low probability of success, and high litigation costs for their cases as factors that contribute to the difficulties miners face in finding legal representatives. Miners also encounter challenges in developing sound medical evidence. DOL administrative law judges said medical evidence prepared by DOL-approved doctors for claimants does not always provide sound or thorough evidentiary support for their claims. Further, various practices of medical testing, a key measure of black lung-related disability, may contribute to inaccurate disability test readings.
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Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
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Recommendations for Executive Action
Recommendation: To improve the effectiveness of the Black Lung Benefits Program, the Secretary of Labor should evaluate and address blood gas testing practices that may contribute to inaccurate disability test readings by implementing a feedback mechanism to record and track complaints from federal black lung claims stakeholders about testing practices.
Agency Affected: Department of Labor
Status: Open
Comments: DOL stated that it would expand its existing medical provider database to include records of complaints. Although they generally agreed with our recommendation, OWCP expressed concern that an increase in complaints could discourage even good doctors from remaining on the list of approved medical providers. However, the purpose of our recommendation is not to penalize good doctors, but for DOL to begin to track complaints so that the agency can begin to understand the extent to which disability testing errors occur with DOL-approved doctors as well as mine company-hired doctors. The agency did not provide an update on this recommendation in FY11.
Recommendation: To improve the effectiveness of the Black Lung Benefits Program, the Secretary of Labor should evaluate and report on claimant access to legal and lay representation by implementing changes to the data management systems of Office of Workers' Compensation Programs (OWCP), OALJ, and BRB that will permit accurate data about claimant representation throughout the claims and appeals process.
Agency Affected: Department of Labor
Status: Open
Comments: DOL agreed to enhance their existing systems to begin to track when in the process a claimant is represented and whether the claimant is represented by an attorney or lay representative. OALJ disagreed with us on the extent to which claimant representation data is currently being captured, stating that it accurately maintains records regarding whether a claimant is represented at this level. Although CTS does not currently specify the data on which a claimant has obtained representation or whether the named representative is an attorney or non-attorney, the agency believes this information has limited utility compared with reviewing means of attracting more lay and attorney representation to help claimants. Nevertheless, OALJ stated that it would explore ways to modify CTS to accommodate additional representation information. GAO maintains that the data provided by OALJ was not sufficiently reliable and that system enhancements - including the type of representation a claimant secured and at what point a claimant received that representation (e.g., 1 month, 4 months, or 1 year after an appeal) - are required for DOL to develop a more accurate assessment of the level of claimant access to representation. The agency did not provide an update on this recommendation in FY11.
Recommendation: To improve the effectiveness of the Black Lung Benefits Program, the Secretary of Labor should, based on feedback from relevant black lung medical stakeholders, including approved diagnostic providers and Black Lung Clinics, develop options for improving how doctors' opinions are documented on DOL's medical evaluation form.
Agency Affected: Department of Labor
Status: Open
Comments: DOL agreed with this recommendation, but emphasized that any revisions to the form should include a well-reasoned narrative and allow less room for legal challenge from parties, not more. However, GAO believes that it is essential for DOL to collect and consider feedback from stakeholders in their revisions to the form. The agency did not provide an update on this recommendation in FY11.
Recommendation: To improve the effectiveness of the Black Lung Benefits Program, the Secretary of Labor should consider shortening the time required to schedule hearings for black lung cases by examining the feasibility of using video teleconferencing technology to streamline the scheduling of hearings in remote areas.
Agency Affected: Department of Labor
Status: Open
Comments: DOL concurred with our recommendation and commented that, for at least one year prior to GAO's report, it had been investigating the possibility of using videoconferencing technology for remote location hearings in all Office of Administrative Law Judges (OALJ) program areas. They are committed to providing more expedient hearings on black lung benefits for claimants living in remote areas. To that end, ALJs have successfully used telephonic hearings or issued decisions based on documentary evidence by agreement of the parties. OALJ identified fiscal, security and practical challenges to providing access to videoconferencing capabilities. While they are continuing to experiment with such equipment in certain cases, without access to dedicated video-hearing facilities, its use would be limited. Nevertheless, as videoconferencing technology evolves and improves, OALJ is open to new ideas and will explore ways to improve the efficiency of properly adjudicating claims. The agency did not provide an update on this recommendation in FY11.
Recommendation: To improve the effectiveness of the Black Lung Benefits Program, the Secretary of Labor should obtain summary information on how long it takes to resolve claims using its current automated system to routinely track cases through the entire adjudication process and develop associated performance measures.
Agency Affected: Department of Labor
Status: Open
Comments: DOL generally disagreed with this recommendation, noting that the current system already tracks the status of each claim, the times required to perform each of the stages of its claims development and adjudication processes, and has established timeliness goals for them. The system is currently capable of tracking black lung claims throughout the appeals process. DOL believes that development of an overall global measure from receipt of claim to disposition would contribute more to the goal of timely disposition of claims than is currently being achieved through the efforts to complete each stage in the adjudication process in a more timely manner. GAO notes that DOL does not currently track how long a claim remains in the adjudications process as one indicator of performance. We believe the agency should leverage the capability of its current automated systems for routinely tracking such information and develop associated performance measures. The agency did not provide an update on this recommendation in FY11.
Recommendation: To improve the effectiveness of the Black Lung Benefits Program, the Secretary of Labor should take steps to reduce the number of black lung cases remanded from Benefits Review Board (BRB) to Office of Administrative Law Judges (OALJ) by convening a group to determine the causes of these remands and develop solutions for reducing their incidence.
Agency Affected: Department of Labor
Status: Open
Comments: DOL agreed to take steps to reduce the number of black lung cases remanded from BRB to OALJ by convening a group to determine the causes of these remands and develop solutions for reducing their incidence. The agency did not provide an update on this recommendation in FY11.
Recommendation: To improve the effectiveness of the Black Lung Benefits Program, the Secretary of Labor should examine the following issues and evaluate the potential for proposing structural changes to the program to Congress: (1) options for enhancing incentives for attorneys and lay representatives to take claimants' cases; areas that could be explored include alternate pay structures for attorneys and an examination of federal support for lay representation; (2) the costs and benefits of allowing compensation for partial disability and settlement of claims; (3) the clinical limitations in documenting evidence to prove pneumoconiosis and total disability; and (4) new and previous proposals to reduce the amount of time it takes to resolve claims and appeals, including requiring complete evidentiary development at the primary claims processing phase and limiting the need for appeals.
Agency Affected: Department of Labor
Status: Open
Comments: DOL agreed with this recommendation and will begin examining potential options for consideration of legislative changes. The agency did not provide an update on this recommendation in FY11.