[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3304 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 3304
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
November 15, 2023
Mr. Casey (for himself, Mr. Fetterman, Mr. Kaine, Mr. Warner, Mr.
Manchin, and Mr. Brown) introduced the following bill; which was read
twice and referred 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 Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Black Lung Benefits Improvement Act
of 2023''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
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. Providing assistance with claims for miners and their
dependent family members.
Sec. 102. Clarifying eligibility for black lung benefits.
Sec. 103. Development of medical evidence by the Secretary.
Sec. 104. False statements or misrepresentations, attorney
disqualification, and discovery sanctions.
Sec. 105. Readjudicating cases involving certain chest radiographs.
Sec. 106. Attorneys' fees and medical expenses payment program.
Sec. 107. Restoring adequate benefit adjustments for miners suffering
from black lung disease and for their
dependent family members.
Sec. 108. Disclosure of employment and earnings information for black
lung benefits claims.
PART B--Reports To Improve the Administration of Benefits Under the
Black Lung Benefits Act
Sec. 121. Strategy to reduce delays in adjudication.
PART C--Improvement in the Financial Security of the Black Lung
Benefits Disability Trust Fund
Sec. 131. Policies for securing the payment of benefits.
TITLE II--ESTABLISHING THE OFFICE OF WORKERS' COMPENSATION PROGRAMS
Sec. 201. Office of Workers' Compensation Programs.
TITLE III--ADDITIONAL PROVISIONS
Sec. 301. Technical and conforming amendments.
Sec. 302. Severability.
SEC. 3. FINDINGS.
Congress finds the following:
(1) The Black Lung Benefits Act (30 U.S.C. 901 et seq.) was
enacted to provide health care and modest benefits to coal
miners who develop pneumoconiosis (referred to in this section
as ``black lung disease'') resulting from exposure to coal dust
during their employment. Yet, the determination of a claimant's
eligibility for these benefits often requires complex,
adversarial litigation. Resource disparities between coal
companies and such claimants are widespread within the
statutory and regulatory framework. Comprehensive reforms are
necessary to ensure that coal miners and their survivors can
get access to the workers compensation benefits they are
entitled to receive and are not at a disadvantage when filing
claims for benefits.
(2) The Government Accountability Office has found that
many claimants under the Black Lung Benefits Act are not
equipped with the medical and legal resources necessary to
develop evidence to meet the requirements for benefits. Without
better options for legal representation, significant numbers of
such claimants proceed with their claims through a complex and
potentially long administrative process without resources that
Department of Labor officials and black lung disease experts
note are important for developing evidence and supporting their
claims. Only 42 percent of claimants are represented by an
attorney during the initial claims determination. Absent
efforts to remedy administrative problems and address
structural weaknesses in the process for obtaining benefits,
claimants with meritorious claims will not receive benefits.
Reforms are necessary to help miners and their survivors access
legal representation.
(3) Contrary to the intent of Congress, benefits payments
under the Black Lung Benefits Act do not automatically increase
with the rising cost of living. Benefit payments are tied to
the monthly pay rate for Federal employees in grade GS-2, step
1. In multiple fiscal years between 2010 and the enactment of
this Act, there was a pay freeze for Federal employees, which
had the effect of eliminating cost-of-living adjustments for
miners, surviving spouses, and dependents under the Black Lung
Benefits Act during such years. Reforms are needed to ensure
that benefits are not eroded due to inflation and are brought
up to date to keep up with the cost of living.
(4) Congress intended for coal companies to have primary
responsibility for benefits due to black lung disease acquired
by their workers. However, because many companies have self-
insured their obligations without proper collateral available
and subsequently defaulted on those obligations, too many
former workers have had to rely on the public Black Lung
Disability Trust Fund as a backstop. Reforms are needed to
ensure that companies are prepared to meet their primary
responsibilities and that their plans for self-insurance are
fiscally sound.
(5) Black lung disease has been the underlying or
contributing cause of death of more than 78,000 miners since
1968. After decades of decline, the incidence of coal miners
with black lung disease is on the rise, recently reaching
levels not seen in 25 years. According to the National
Institute for Occupational Safety and Health, miners are
developing advanced cases of the disease at younger ages. In
response, the Department of Labor took important steps to
combat the disease, including promulgating a rule in 2014 that
reduced the allowed concentration of coal dust and addressed
weaknesses in the dust sampling system. Retrospective studies
should be continued to determine whether revisions to the
standards are necessary to eliminate the disease. The Mine
Safety and Health Administration of the Department of Labor has
made clear its intent to issue rules around respirable
crystalline silica. In the interim, the Mine Safety and Health
Administration launched an enforcement initiative to protect
miners from the health hazards of respirable crystalline
silica. Under this initiative, the Mine Safety and Health
Administration will conduct inspections on silica hazards and
expand silica sampling at mines. The Mine Safety and Health
Administration will also provide mine operators with compliance
assistance and best practices to limit miners' exposure to
harmful silica dust.
TITLE I--BLACK LUNG BENEFITS
PART A--IMPROVING THE PROCESS FOR FILING AND ADJUDICATING CLAIMS FOR
BENEFITS
SEC. 101. PROVIDING ASSISTANCE WITH CLAIMS FOR MINERS AND THEIR
DEPENDENT FAMILY MEMBERS.
Section 427(a) of the Black Lung Benefits Act (30 U.S.C. 937(a)) is
amended by striking ``the analysis, examination, and treatment'' and
all that follows through ``coal miners.'' and inserting ``the analysis,
examination, and treatment of respiratory and pulmonary impairments in
active and inactive coal miners and for assistance on behalf of miners,
spouses, dependents, and other family members with claims arising under
this title.''.
SEC. 102. CLARIFYING ELIGIBILITY FOR BLACK LUNG BENEFITS.
Section 411(c) of the Black Lung Benefits Act (30 U.S.C. 921(c)) is
amended by striking paragraph (3) and inserting the following:
``(3)(A) If x-ray, CT scan, biopsy, autopsy, or other
medically accepted and relevant test or procedure establishes
that a miner is suffering or has suffered from a chronic dust
disease of the lung, diagnosed as complicated pneumoconiosis or
progressive massive fibrosis (as determined in accordance with
subparagraph (B)), then there shall be an irrebuttable
presumption that such miner is totally disabled due to
pneumoconiosis, that the miner's death was due to
pneumoconiosis, or that at the time of death the miner was
totally disabled by pneumoconiosis, as the case may be.
``(B) For purposes of subparagraph (A), complicated
pneumoconiosis or progressive massive fibrosis can be
established by any of the following:
``(i) A chest radiograph, which yields one or more
large opacities whose greatest diameter exceeds 1
centimeter and would be classified in Category A, B, or
C in the International Classification of Radiographs of
Pneumoconioses by the International Labour
Organization, in the absence of more probative evidence
sufficient to establish that the etiology of the large
opacity is not pneumoconiosis.
``(ii) A chest CT scan, which yields one or more
large opacities whose greatest diameter exceeds 1
centimeter, in the absence of more probative evidence
sufficient to establish that the etiology of the large
opacity is not pneumoconiosis.
``(iii) A lung biopsy or autopsy, which would yield
a lesion at least 1 centimeter in its long axis
diameter if measured at the time of gross dissection.
``(iv) A diagnosis by other means that would
reasonably be expected to yield results described in
clause (i), (ii), or (iii).''.
SEC. 103. DEVELOPMENT OF MEDICAL EVIDENCE BY THE SECRETARY.
Part C of the Black Lung Benefits Act (30 U.S.C. 931 et seq.) is
amended by adding at the end the following:
``SEC. 435. DEVELOPMENT OF MEDICAL EVIDENCE BY THE SECRETARY.
``(a) Complete Pulmonary Evaluation.--Upon request by a claimant
for benefits under this title, the Secretary shall provide the claimant
an opportunity to substantiate the claim through a complete pulmonary
evaluation of the miner that shall include--
``(1) an initial report, conducted by a qualified physician
on the list provided under subsection (e), and in accordance
with subsection (e)(5) and sections 402(f)(1)(D) and 413(b);
and
``(2) if the conditions under subsection (c) are met, any
supplemental medical evidence described in subsection (d).
``(b) Authorizing Chest Scans.--In diagnosing whether there is
complicated pneumoconiosis as a part of the complete pulmonary
evaluation conducted under subsection (a), the Secretary shall
authorize a high-quality, low-dose or standard computerized tomography
scan where any or a combination of the following is found:
``(1) Any certified B reader of a chest radiograph
associated with an exam conducted under section 413(b) finds
pneumoconiosis (ILO category 2/1 or greater).
``(2) Any certified B reader of a chest radiograph
associated with an exam conducted under section 413(b) finds a
coalescence of small opacities.
``(c) Conditions for Supplemental Medical Evidence.--The Secretary
shall develop supplemental medical evidence, in accordance with
subsection (d)--
``(1) for any claim in which the Secretary recommends an
award of benefits based on the results of the initial report
under subsection (a)(1) and a party opposing such award submits
evidence that could be considered contrary to the findings of
the Secretary; and
``(2) for any compensation case under this title heard by
an administrative law judge, in which--
``(A) the Secretary has awarded benefits to the
claimant;
``(B) the party opposing such award has submitted
evidence not previously reviewed that could be
considered contrary to the award under subparagraph
(A); and
``(C) the claimant or, if the claimant is
represented by an attorney, the claimant's attorney
consents to the Secretary developing supplemental
medical evidence.
``(d) Process for Supplemental Medical Evidence.--
``(1) In general.--Except as provided under paragraph (2),
to develop supplemental medical evidence under conditions
described in subsection (c), the Secretary shall request the
physician who conducted the initial report under subsection
(a)(1) to--
``(A) review any medical evidence submitted after
such report or the most recent supplemental report, as
appropriate; and
``(B) update his or her opinion in a supplemental
report.
``(2) Alternative physician.--If such physician is no
longer available or is unwilling to provide supplemental
medical evidence under paragraph (1), the Secretary shall
select another qualified physician from the list provided
pursuant to subsection (e) to provide such evidence.
``(e) Qualified Physicians for Complete Pulmonary Evaluation and
Protections for Suitability and Potential Conflicts of Interest.--
``(1) Qualified physicians list.--The Secretary shall
create and maintain a list of qualified physicians to be
selected by a claimant to perform the complete pulmonary
evaluation described in subsection (a).
``(2) Public availability.--The Secretary shall make the
list under this subsection available to the public.
``(3) Annual evaluation.--Each year, the Secretary shall
update such list by reviewing the suitability of the listed
qualified physicians and assessing any potential conflicts of
interest.
``(4) Criteria for suitability.--The Secretary shall
include on the list under this subsection only those physicians
whom the Secretary determines are qualified, capable, and
willing to provide credible opinions consistent with the
premises underlying this Act. In determining whether a
physician is suitable to be on such list, the Secretary shall
consult the National Practitioner Data Bank of the Department
of Health and Human Services and assess reports of adverse
licensure, certifications, hospital privilege, and professional
society actions involving the physician. In no case shall such
list include any physician--
``(A) who is not licensed to practice medicine in
any State or any territory, commonwealth, or possession
of the United States;
``(B) whose license is revoked by a medical
licensing board of any State, territory, commonwealth,
or possession of the United States; or
``(C) whose license is suspended by a medical
licensing board of any State, territory, commonwealth,
or possession of the United States.
``(5) Conflicts of interest.--The Secretary shall develop
and implement policies and procedures to ensure that any actual
or potential conflict of interest of qualified physicians on
the list under this subsection, including both individual and
organizational conflicts of interest, are disclosed to the
Department, and to provide such disclosure to claimants. Such
policies and procedures shall provide that a physician shall
not be used to perform a complete pulmonary medical evaluation
under subsection (a) that is reimbursed pursuant to subsection
(g), if--
``(A) such physician is employed by, under contract
to, or otherwise providing services to a private party
opposing the claim, a law firm or lawyer representing
such opposing party, or an interested insurer or other
interested third party; or
``(B) such physician has been retained by a private
party opposing the claim, a law firm or lawyer
representing such opposing party, or an interested
insurer or other interested third party in the previous
24 months.
``(f) Record.--Upon receipt of any initial report or supplemental
report under this section, the Secretary shall enter the report in the
record and provide a copy of such report to all parties to the
proceeding.
``(g) Expenses.--All expenses related to obtaining the medical
evidence under this section shall be paid for by the fund. If a
claimant receives a final award of benefits, the operator liable for
payment of benefits, if any, shall reimburse the fund for such
expenses, which shall include interest.''.
SEC. 104. FALSE STATEMENTS OR MISREPRESENTATIONS, ATTORNEY
DISQUALIFICATION, AND DISCOVERY SANCTIONS.
Section 431 of the Black Lung Benefits Act (30 U.S.C. 941) is
amended to read as follows:
``SEC. 431. FALSE STATEMENTS OR MISREPRESENTATIONS, ATTORNEY
DISQUALIFICATION, AND DISCOVERY SANCTIONS.
``(a) In General.--No person, including any claimant, physician,
operator, duly authorized agent of such operator, or employee of an
insurance carrier, shall--
``(1) knowingly and willfully make a false statement or
misrepresentation for the purpose of obtaining, increasing,
reducing, denying, or terminating benefits under this title; or
``(2) knowingly and willfully threaten, coerce, intimidate,
deceive, or mislead a party, representative, witness, potential
witness, judge, or anyone participating in a proceeding
regarding any matter related to a proceeding under this title.
``(b) Fine; Imprisonment.--Any person who engages in the conduct
described in subsection (a) shall, upon conviction, be subject to a
fine in accordance with title 18, United States Code, imprisoned for
not more than 5 years, or both