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S. 2205: Black Lung Benefits Improvement Act of 2019


The text of the bill below is as of Jul 23, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 2205

IN THE SENATE OF THE UNITED STATES

July 23, 2019

(for himself, Mr. Brown, Mr. Kaine, Mr. Warner, and Mr. Manchin) 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.

1.

Short title

This Act may be cited as the Black Lung Benefits Improvement Act of 2019.

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. 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 family 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.

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 of such Act. Comprehensive reforms are necessary to ensure that coal miners 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. Miners often lack complete and reliable medical evidence, consequently increasing the risk that the individuals who review claims for benefits will be presented with insufficient medical evidence. Similarly, 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.

(3)

Full exchange and disclosure between the parties of relevant medical information is essential for fair adjudication of claims under the Black Lung Benefits Act, regardless of whether the parties intend to submit such information into evidence. Records of adjudications reveal that some mine operators’ legal representatives have withheld relevant evidence from claimants, administrative law judges, and, in some cases, even their own medical experts. In several cases, the disclosure of such evidence would have substantiated a miner’s claim for benefits. Withholding medical information can endanger miners by depriving them of important information about their own health and the potential need to seek medical treatment.

(4)

Given the remedial nature of the Black Lung Benefits Act, when an adjudicator determines that evidence is evenly balanced, it is appropriate for any resulting doubt to be resolved in favor of the claimant. The Supreme Court vacated this longstanding legal principle, not on substantive grounds, but because its application conflicted with the requirements of another statute. Such principle needs to be reinstated in the Black Lung Benefits Act because it provides fairness and improves the administration of benefits.

(5)

Physicians who read lung x-rays as part of pulmonary assessments used in proceedings for claims under the Black Lung Benefits Act are required to demonstrate competency in classifying chest radiographs by becoming certified as B Readers by the National Institute for Occupational Safety and Health (referred to in this section as NIOSH). However, past investigations have uncovered that there have been NIOSH-certified B Readers who systematically misclassified chest radiographs while employed by coal operators or their law firms for the purpose of opposing claims under such Act. Where chest radiographs are needed to establish entitlement to benefits, claimants should have access to accurate interpretations so as to ensure the fair adjudication of such claims.

(6)

Past instances of systematic misclassification of chest radiographs that resulted in survivors being denied benefit claims under the Black Lung Benefits Act were not discovered until years after the misclassifications had begun. In such instances, survivors should be permitted to file a new claim for benefits under such Act. However, a survivor is effectively barred from filing a new claim one year after a decision regarding such benefits is final, constituting an injustice that merits a remedy.

(7)

Insufficient numbers of administrative law judges in the Department of Labor coupled with high numbers of cases filed under the Black Lung Benefits Act and disruptions in Federal Government functions caused by shutdowns have contributed to extensive delays in adjudicating claims under such Act and numerous other labor and employment laws. A 2017 report by the Department of Labor Office of the Inspector General found that the Office of Workers’ Compensation Programs took an average of almost a year to process a claim for benefits under the Black Lung Benefits Act and that claims appealed to the Office of Administrative Law Judges took, on average, an additional 640 days to receive a decision. These delays directly and severely impact the lives of workers throughout the United States, placing an undue financial and emotional burden on the affected individuals and their families.

(8)

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.

(9)

A competent assessment of medical information and testimony, which often involves multiple physicians disputing a diagnosis, is necessary in determining whether to award benefits under the Black Lung Benefits Act. To ensure that a determination regarding a claim for benefits under such Act is fair and accurate, regular training is needed regarding—

(A)

developments in pulmonary medicine relating to black lung disease;

(B)

medical evidence necessary to sustain claims for such benefits; and

(C)

the proper weight to be given to conflicting evidence.

(10)

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. According to NIOSH, 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.

(11)

To eliminate an avoidable delay in evaluating claims under such Act, the Inspector General of the Department of Labor has recommended legislation that would authorize the Department of Labor to have electronic access to miners’ earning records held by the Social Security Administration.

I

Black lung benefits

A

Improving the process for filing and adjudicating claims for benefits

101.

Mandatory disclosure of medical information and reports

Part A of the Black Lung Benefits Act (30 U.S.C. 901 et seq.) is amended by adding at the end the following:

403.

Mandatory medical information disclosure

(a)

Report

In any claim for benefits under this title, an operator that requires a miner to submit to a medical examination regarding the miner’s respiratory or pulmonary condition shall, not later than 21 days after the miner has been examined, deliver to the claimant a complete copy of the examining physician’s report. The examining physician’s report shall—

(1)

be in writing; and

(2)

set out in detail the findings of such physician, including any diagnoses and conclusions, the results of any diagnostic imaging tests, and any other tests performed on the miner.

(b)

Disclosure

(1)

In general

In any claim for benefits under this title, each party shall provide all other parties in the proceeding with a copy of all medical information developed regarding the miner’s physical condition relating to such claim, even if the party does not intend to submit the information as evidence.

(2)

Medical information

For purposes of paragraph (1), the term medical information

(A)

shall include the opinion of any examining physician, and any examining or nonexamining physician’s interpretations of radiographs or pathology; and

(B)

shall not include—

(i)

any record of a miner’s hospitalization or other medical treatment; or

(ii)

any communication from a miner’s representative to a medical expert.

(c)

Regulations

The Secretary shall promulgate regulations regarding the disclosure of medical information under this section, and such regulations may establish sanctions for noncompliance with this section.

.

102.

Attorneys’ fees and medical expenses payment program

Part A of the Black Lung Benefits Act (30 U.S.C. 901 et seq.), as amended by section 101, is further amended by adding at the end the following:

404.

Attorneys’ fees and medical expenses payment program

(a)

Program established

(1)

In general

Not later than 180 days after the date of enactment of the Black Lung Benefits Improvement Act of 2019, the Secretary shall establish a payment program to pay attorneys’ fees and other reasonable and unreimbursed medical expenses incurred in establishing the claimant’s case, using amounts from the fund, to the attorneys of claimants in qualifying claims.

(2)

Qualifying claim

A qualifying claim for purposes of this section is a contested claim for benefits under this title for which a final order has not been entered within one year of the filing of the claim.

(3)

Use of payments from the fund

Notwithstanding any other provision of law, amounts in the fund shall be available for payments authorized by the Secretary under this section.

(b)

Payments authorized

(1)

Attorneys’ fees

(A)

Approval

If a claimant for benefits under this title obtains a proposed decision and order from a district director with an award of benefits for a qualifying claim, or an award for a qualifying claim before an administrative law judge—

(i)

the district director may approve attorneys’ fees for work done before such director in an amount not to exceed $1,500; and

(ii)

an administrative law judge may approve attorneys’ fees for work done before such judge in an amount not to exceed $3,000.

(B)

Payment

The Secretary shall, through the program under this section, pay any amounts approved under subparagraph (A).

(2)

Medical expenses

(A)

Approval

If a claimant for benefits under this title obtains a proposed decision and order from a district director with an award of benefits for a qualifying claim, or an award for a qualifying claim before an administrative law judge, such district director and administrative law judge may each approve an award, in an amount not to exceed $1,500, to the claimant’s attorney of reasonable and unreimbursed medical expenses incurred in establishing the claimant’s case.

(B)

Payment

The Secretary shall, through the program under this section, pay any amounts approved under subparagraph (A).

(3)

Maximum

The Secretary, through the program established under this section, shall for any single qualifying claim pay—

(A)

not more than a total of $4,500 in attorneys’ fees; and

(B)

not more than $3,000 in medical expenses.

(c)

Reimbursement of funds

In any case in which a qualifying claim results in a final order awarding compensation, the liable operator shall reimburse the fund for any fees or expenses paid under this section, subject to enforcement by the Secretary under section 424 and in the same manner as compensation orders are enforced under section 21(d) of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 921(d)).

(d)

Additional program rules

Nothing in this section shall limit or otherwise affect an operator's liability for any attorneys’ fees or medical expenses awarded by the district director or an administrative law judge that were not paid by the program under this section. Nothing in this section shall limit or otherwise affect the Secretary's authority to use amounts in the fund to pay approved attorneys’ fees in claims for benefits under this title for which a final order awarding compensation has been entered and the operator is unable to pay.

(e)

No recoupment of attorneys’ fees

Any payment for attorneys’ fees or medical expenses made by the Secretary under this section shall not be recouped from the claimant or the claimant’s attorney.

.

103.

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 paragraphs (3) and (4) and inserting the following:

(3)

If an x-ray, 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 (pneumoconiosis that has formed an opacity, mass, or lesion whose greatest diameter exceeds 1 centimeter), 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. 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, shall be sufficient to invoke the presumption, in the absence of more probative evidence sufficient to establish that the etiology of a large opacity is not pneumoconiosis.

(4)

If a miner was employed for 15 years or more in one or more coal mines, and if there is a chest radiograph submitted in connection with the claim under this title of such miner or such miner’s surviving spouse, child, parent, brother, sister, or dependent and it is interpreted as negative with respect to the requirements of paragraph (3), and if other evidence demonstrates the existence of a totally disabling respiratory or pulmonary impairment, then there shall be a rebuttable 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. In the case of a living miner, a spouse's affidavit may not be used by itself to establish the presumption under this paragraph. The presumption under this paragraph may be rebutted only by establishing that such miner does not, or did not, have pneumoconiosis, or that no part of such miner’s respiratory or pulmonary impairment or death was caused by pneumoconiosis.

.

104.

Restoring adequate benefit adjustments for miners suffering from black lung disease and for their dependent family members

Section 412(a) of the Black Lung Benefits Act (30 U.S.C. 922(a)) is amended by striking paragraph (1) and inserting the following:

(1)

In the case of total disability of a miner due to pneumoconiosis, the disabled miner shall be paid benefits during the disability—

(A)

for any calendar year preceding January 1, 2020, at a rate equal to 37½ percent of the monthly pay rate for Federal employees in grade GS–2, step 1;

(B)

for the calendar year beginning on January 1, 2020, at a rate, payable in 12 equal monthly payments, of—

(i)

$8,370 per year; increased by

(ii)

the same percentage that the pay rate for Federal employees in grade GS–2, step 1 is increased for calendar year 2020; and

(C)

for each calendar year thereafter, at a rate equal to the amount under subparagraph (B) increased by an amount equal to any increase in the annual rate of the Consumer Price Index for Urban Wage Earners and Clerical Workers, as published by the Bureau of Labor Statistics.

.

105.

Treatment of evidence in equipoise

Section 422 of the Black Lung Benefits Act (30 U.S.C. 932) is amended by adding at the end the following:

(m)

In determining the validity of a claim under this title, an adjudicator who finds that the evidence is evenly balanced on an issue shall resolve any resulting doubt in the claimant’s favor and find that the claimant has met the burden of persuasion on such issue.

.

106.

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..

107.

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:

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)

threaten, coerce, intimidate, deceive, or knowingly 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.

(c)

Prompt investigation

The United States Attorney for the district in which the conduct described in subsection (a) is alleged to have occurred shall make every reasonable effort to promptly investigate each complaint of a violation of such subsection.

(d)

Disqualification

(1)

In general

An attorney or expert witness who engages in the conduct described in subsection (a) shall, in addition to the fine or imprisonment provided under subsection (b), be permanently disqualified from representing any party, or appearing in any proceeding, under this title.

(2)

Attorney disqualification

In addition to the disqualification described in paragraph (1), the Secretary may disqualify an attorney from representing any party in a proceeding under this title for either a limited term or permanently, if the attorney—

(A)

engages in any action or behavior that is prejudicial to the fair and orderly conduct of such proceeding; or

(B)

is suspended or disbarred by any court of the United States, any State, or any territory, commonwealth, or possession of the United States with jurisdiction over the proceeding.

(e)

Discovery sanctions

An administrative law judge may sanction a party who fails to comply with an order to compel discovery or disclosure, or to supplement earlier responses, in a proceeding under this title. These sanctions may include, as appropriate—

(1)

drawing an adverse inference against the noncomplying party on the facts relevant to the discovery or disclosure order;

(2)

limiting the noncomplying party’s claims, defenses, or right to introduce evidence; and

(3)

rendering a default decision against the noncomplying party.

(f)

Regulations

The Secretary shall promulgate regulations that—

(1)

provide procedures for the disqualifications and sanctions under this section and are appropriate for all parties; and

(2)

distinguish between parties that are represented by an attorney and parties that are not represented by an attorney.

.

108.

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:

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 (d), and in accordance with subsection (d)(5) and sections 402(f)(1)(D) and 413(b); and

(2)

if the conditions under subsection (b) are met, any supplemental medical evidence described in subsection (c).

(b)

Conditions for supplemental medical evidence

The Secretary shall develop supplemental medical evidence, in accordance with subsection (c)—

(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.

(c)

Process for supplemental medical evidence

(1)

In general

Except as provided under paragraph (2), to develop supplemental medical evidence under conditions described in subsection (b), 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 to provide such evidence.

(3)

Complicated pneumoconiosis

In diagnosing whether there is complicated pneumoconiosis as a part of a medical examination conducted under paragraph (1) or (2), the Secretary shall authorize a high-quality, low-dose or standard CT scan where one or more of the following is found:

(A)

Any certified B reader of a chest radiograph associated with the examination under section 413(b) finds advanced pneumoconiosis (ILO category 2/1 or greater).

(B)

Any certified B reader of a chest radiograph associated with the examination under section 413(b) finds a coalescence of small opacities.

(C)

Any certified B reader of a chest radiograph associated with the examination under section 413(b) has a reasonable belief that there may be a large opacity in the upper lungs that has been obscured by bony structures.

(d)

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

In determining whether a physician is suitable to be on the list under this subsection, 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, unless the claimant knowingly and with the benefit of full disclosure waives the following limitations, a physician shall not be used to perform a complete pulmonary medical evaluation under subsection (a) that is reimbursed pursuant to subsection (f), 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.

(e)

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.

(f)

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.

.

109.

Medical evidence training program

Part C of the Black Lung Benefits Act (30 U.S.C. 931 et seq.), as amended by section 108, is further amended by adding at the end the following:

436.

Medical evidence training program

(a)

In general

Not later than 60 days after the date of enactment of the Black Lung Benefits Improvement Act of 2019, the Secretary, in coordination with the National Institute for Occupational Safety and Health, shall establish and implement a training program, to provide education on issues relating to medical evidence relevant to claims for benefits under this title, to each of the following individuals who engage in work under this title:

(1)

District directors.

(2)

Claims examiners working under such directors.

(3)

Administrative law judges and attorney advisors supporting such judges.

(4)

Members of the Benefits Review Board established under section 21(b) of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 921(b)).

(b)

Training program topics

The training program under this section shall provide an overview of topics that include—

(1)

new developments in pulmonary medicine relating to pneumoconiosis;

(2)

medical evidence, and other relevant evidence, sufficient to support a claim for benefits under this title; and

(3)

weighing conflicting medical evidence and testimony concerning eligibility for such benefits.

(c)

Timing of training

(1)

Individuals hired or appointed prior to the Black Lung Benefits Improvement Act of 2019

Any district director, claims examiner, administrative law judge, attorney advisor supporting such judge, or member of the Benefits Review Board described in subsection (a)(4), who was hired or appointed prior to the date of enactment of the Black Lung Benefits Improvement Act of 2019 shall complete the training program under this section not later than 60 days after the establishment of such program under subsection (a) and not less than annually thereafter.

(2)

Individuals hired or appointed after the Black Lung Benefits Improvement Act of 2019

Any district director, claims examiner, administrative law judge, attorney advisor supporting such judge, or member of the Benefits Review Board described in subsection (a)(4), who is not described in paragraph (1) shall complete the training program under this section prior to engaging in any work under this title and not less than annually thereafter.

.

110.

Technical and conforming amendments

The Black Lung Benefits Act (30 U.S.C. 901 et seq.) is amended—

(1)

in section 401(a) (30 U.S.C. 901(a)), by inserting or who were found to be totally disabled by such disease after such disease;

(2)

in section 402 (30 U.S.C. 902)—

(A)

in subsection (a), by striking paragraph (2) and inserting the following:

(2)

a spouse who is a member of the same household as the miner, or is receiving regular contributions from the miner for support, or whose spouse is a miner who has been ordered by a court to contribute to support, or who meets the requirements of paragraph (1) or (2) of section 216(b) of the Social Security Act or paragraph (1) or (2) of section 216(f) of such Act. An individual is the spouse of a miner when such individual is legally married to the miner under the laws of the State where the marriage was celebrated. The term spouse also includes a divorced wife or divorced husband, as such terms are defined in paragraph (1) or (4) of section 216(d) of such Act, who is receiving at least one-half of his or her support, as determined in accordance with regulations prescribed by the Secretary, from the miner, or is receiving substantial contributions from the miner (pursuant to a written agreement), or there is in effect a court order for substantial contributions to the spouse’s support from such miner.

;

(B)

by striking subsection (e) and inserting the following:

(e)

The term surviving spouse includes the spouse living with or dependent for support on the miner at the time of the miner’s death, or living apart for reasonable cause or because of the miner’s desertion, or who meets the requirements of subparagraph (A), (B), (C), (D), or (E) of section 216(c)(1) of the Social Security Act, subparagraph (A), (B), (C), (D), or (E) of section 216(g)(1) of such Act, or section 216(k) of such Act, who is not married. An individual is the surviving spouse of a miner when legally married at the time of the miner’s death under the laws of the State where the marriage was celebrated. Such term also includes a surviving divorced wife or surviving divorced husband, as such terms are defined in paragraph (2) or (5) of section 216(d) of such Act who for the month preceding the month in which the miner died, was receiving at least one-half of his or her support, as determined in accordance with regulations prescribed by the Secretary, from the miner, or was receiving substantial contributions from the miner (pursuant to a written agreement) or there was in effect a court order for substantial contributions to the spouse’s support from the miner at the time of the miner’s death.

;

(C)

in subsection (f)(2)—

(i)

in subparagraph (A), by inserting , as in effect on the day before the date of enactment of the Black Lung Consolidation of Administrative Responsibility Act (Public Law 107–275) after section 435(a); and

(ii)

in subparagraph (B), by inserting , as in effect on the day before the date of enactment of the Black Lung Consolidation of Administrative Responsibility Act (Public Law 107–275) after section 435(b);

(D)

in subsection (g)—

(i)

in paragraph (2)(B)(ii), by striking he ceased and inserting the individual ceased; and

(ii)

in the matter following paragraph (2)(C), by striking widow each place it appears and inserting surviving spouse;

(E)

in subsection (h), by striking Internal Revenue Code of 1954 and inserting Internal Revenue Code of 1986; and

(F)

in subsection (i), by striking Internal Revenue Code of 1954 and inserting Internal Revenue Code of 1986;

(3)

in section 411 (30 U.S.C. 921)—

(A)

by striking subsection (a) and inserting the following:

(a)

The Secretary shall, in accordance with the provisions of this title, and the regulations promulgated by the Secretary under this title, make payments of benefits in respect of—

(1)

total disability of any miner due to pneumoconiosis;

(2)

the death of any miner whose death was due to pneumoconiosis;

(3)

total disability of any miner at the time of the miner’s death with respect to a claim filed under part C prior to January 1, 1982;

(4)

survivors’ benefits for any claim filed after January 1, 2005, that is pending on or after March 23, 2010, where the miner is found entitled to receive benefits at the time of the miner’s death as a result of the miner’s claim filed under part C; and

(5)

survivors’ benefits where the miner is found entitled to receive benefits at the time of the miner’s death resulting from the miner’s claim filed under part C before January 1, 1982.

; and

(B)

in subsection (c)—

(i)

in paragraph (1), by striking his pneumoconiosis and inserting the miner’s pneumoconiosis; and

(ii)

in paragraph (2), by striking his death and inserting the miner’s death;

(4)

in section 412 (30 U.S.C. 922)—

(A)

in subsection (a)—

(i)

by striking paragraph (2) and inserting the following:

(2)

In the case of a surviving spouse—

(A)

of a miner whose death is due to pneumoconiosis;

(B)

in a claim filed after January 1, 2005, and that is pending on or after March 23, 2010, of a miner who is found entitled to receive benefits at the time of the miner’s death as a result of the miner’s claim filed under part C;

(C)

of a miner who is found entitled to receive benefits at the time of the miner’s death as a result of the miner’s claim filed under part C before January 1, 1982; or

(D)

in a claim filed under part C before January 1, 1982, of a miner who was totally disabled by pneumoconiosis at the time of the miner’s death,

benefits shall be paid to the miner’s surviving spouse at the rate the deceased miner would receive such benefits if the miner were totally disabled.

;

(ii)

in paragraph (3)—

(I)

by striking (3) In the case and all that follows through section 411(c) and inserting the following: (3)(A) In the case of the child or children of a miner described in subparagraph (B);

(II)

by striking he each place it appears and inserting the child;

(III)

by striking widow each place it appears and inserting surviving spouse; and

(IV)

by adding at the end the following:

(B)

Subparagraph (A) shall apply in the case of any child or children—

(i)

of a miner whose death is due to pneumoconiosis;

(ii)

in a claim filed after January 1, 2005, that is pending on or after March 23, 2010, of a miner who is found entitled to receive benefits at the time of the miner’s death as a result of the miner’s claim filed under part C;

(iii)

of a miner who is found entitled to receive benefits at the time of the miner’s death as a result of the miner’s claim filed under part C before January 1, 1982;

(iv)

in a claim filed under part C before January 1, 1982, of a miner who was totally disabled by pneumoconiosis at the time of the miner’s death;

(v)

of a surviving spouse who is found entitled to receive benefits under this part at the time of the surviving spouse’s death; or

(vi)

entitled to the payment of benefits under paragraph (5) of section 411(c).

;

(iii)

in paragraph (5)—

(I)

by striking the first sentence and inserting the following: In the case of the dependent parent or parents of a miner who is not survived at the time of death by a surviving spouse or a child and (i) whose death is due to pneumoconiosis, (ii) in a claim filed after January 1, 2005, that is pending on or after March 23, 2010, who is found entitled to receive benefits at the time of the miner’s death as a result of the miner’s claim filed under part C, (iii) who is found entitled to receive benefits at the time of the miner's death as a result of the miner’s claim filed under part C before January 1, 1982, or (iv) in a claim filed under part C before January 1, 1982, who was totally disabled by pneumoconiosis at the time of the miner’s death, (I) in the case of the dependent surviving brother(s) or sister(s) of such a miner who is not survived at the time of the miner’s death by a surviving spouse, child, or parent, (II) in the case of the dependent parent or parents of a miner (who is not survived at the time of the miner’s death by a surviving spouse or child) who are entitled to the payment of benefits under paragraph (5) of section 411(c), or (III) in the case of the dependent surviving brother(s) or sister(s) of a miner (who is not survived at the time of the miner’s death by a surviving spouse, child, or parent) who are entitled to the payment of benefits under paragraph (5) of section 411(c), benefits shall be paid under this part to such parent(s), or to such brother(s), or sister(s), at the rate specified in paragraph (3) (as if such parent(s) or such brother(s) or sister(s), were the children of such miner).; and

(II)

in the fourth sentence—

(aa)

by striking brother only if he and inserting brother or sister only if the brother or sister; and

(bb)

by striking before he ceased and inserting before the brother or sister ceased; and

(iv)

in paragraph (6), by striking prescribed by him and inserting prescribed by the Secretary;

(B)

in subsection (b)—

(i)

by striking his each place it appears and inserting such miner’s; and

(ii)

by striking widow each place it appears and inserting surviving spouse; and

(C)

in subsection (c), by striking Internal Revenue Code of 1954 and inserting Internal Revenue Code of 1986;

(5)

in section 413 (30 U.S.C. 923)—

(A)

in subsection (b)—

(i)

in the second sentence, by striking his wife’s affidavits and inserting affidavits of the miner’s spouse;

(ii)

in the ninth sentence, by striking widow and inserting surviving spouse; and

(iii)

by striking the last sentence; and

(B)

in subsection (c), by striking his claim and inserting the claim;

(6)

in section 414 (30 U.S.C. 924)—

(A)

in subsection (a)—

(i)

in paragraph (1), by striking widow, within six months after the death of her husband and inserting surviving spouse, within six months after the death of the miner; and

(ii)

in paragraph (2)(C), by striking his and inserting the child’s; and

(B)

in subsection (e)—

(i)

by striking widow and inserting surviving spouse; and

(ii)

by striking his death and inserting the miner’s death;

(7)

in section 415(a) (30 U.S.C. 925(a))—

(A)

in paragraph (1), by striking Internal Revenue Code of 1954 and inserting Internal Revenue Code of 1986; and

(B)

in paragraph (2)—

(i)

by striking he and inserting the Secretary; and

(ii)

by striking him and inserting the Secretary;

(8)

in section 421 (30 U.S.C. 931)—

(A)

in subsection (a), by striking widows and inserting spouses; and

(B)

in subsection (b)(2)—

(i)

in the matter preceding subparagraph (A), by striking he and inserting the Secretary; and

(ii)

in subparagraph (F), by striking promulgated by him and inserting promulgated by the Secretary;

(9)

in section 422 (30 U.S.C. 932)—

(A)

in subsection (a)—

(i)

by striking Internal Revenue Code of 1954 and inserting Internal Revenue Code of 1986; and

(ii)

by striking he and inserting the Secretary;

(B)

in subsection (c), by inserting , as in effect on the day before the date of enactment of the Black Lung Consolidation of Administrative Responsibility Act (Public Law 107–275) after section 435;

(C)

in subsection (i)(4), by striking Internal Revenue Code of 1954 and inserting Internal Revenue Code of 1986; and

(D)

in subsection (j)—

(i)

by striking Internal Revenue Code of 1954 each place it appears and inserting Internal Revenue Code of 1986; and

(ii)

in paragraph (3), by inserting , as in effect on the day before the date of enactment of the Black Lung Consolidation of Administrative Responsibility Act (Public Law 107–275) after section 435;

(10)

in section 423(a) (30 U.S.C. 933(a)), by striking he and inserting such operator;

(11)

in section 424(b) (30 U.S.C. 934(b))—

(A)

in the matter following subparagraph (B) of paragraph (1), by striking him and inserting such operator;

(B)

in paragraph (3), by striking Internal Revenue Code of 1954 each place it appears and inserting Internal Revenue Code of 1986; and

(C)

in paragraph (5), by striking Internal Revenue Code of 1954 and inserting Internal Revenue Code of 1986;

(12)

in section 428 (30 U.S.C. 938)—

(A)

in subsection (a), by striking him and inserting such operator; and

(B)

in subsection (b)—

(i)

in the first sentence, by striking he and inserting the miner;

(ii)

in the third sentence, by striking he and inserting the Secretary;

(iii)

in the ninth sentence—

(I)

by striking he each place it appears and inserting the Secretary; and

(II)

by striking his and inserting the miner’s; and

(iv)

in the tenth sentence, by striking he each place it appears and inserting the Secretary; and

(13)

in section 430 (30 U.S.C. 940)—

(A)

by striking 1977 and and inserting 1977,; and

(B)

by striking 1981 and inserting 1981, and the Black Lung Benefits Improvement Act of 2019, and any amendments made after the date of enactment of such Act,.

111.

Readjudicating cases involving certain chest radiographs

(a)

Definitions

In this section:

(1)

Covered chest radiograph

The term covered chest radiograph means a chest radiograph that was interpreted as negative for simple pneumoconiosis, complicated pneumoconiosis, or progressive massive fibrosis by a physician with respect to whom the Secretary of Labor has directed, in writing and after an evaluation by the Secretary, that such physician’s negative interpretations of chest radiographs not be credited, except where subsequently determined to be credible by the Secretary in evaluating a claim for benefits under the Black Lung Benefits Act (30 U.S.C. 901 et seq.).

(2)

Covered individual

The term covered individual means an individual whose record for a claim for benefits under the Black Lung Benefits Act includes a covered chest radiograph.

(3)

Covered survivor

The term covered survivor means an individual who—

(A)

is a survivor of a covered individual whose claim under the Black Lung Benefits Act was still pending at the time of the covered individual’s death; and

(B)

continued to seek an award with respect to the covered individual’s claim after the covered individual’s death.

(b)

Claims

A covered individual or a covered survivor whose claim for benefits under the Black Lung Benefits Act (30 U.S.C. 901 et seq.) was denied prior to the enactment of this Act may file a new claim for benefits under this Act not later than one year after the date of enactment of this Act.

(c)

Adjudication on the merits

(1)

In general

Any new claim filed under subsection (b) shall be adjudicated on the merits and shall not include consideration of a covered chest radiograph.

(2)

Covered survivor

Any new claim filed under subsection (b) by a covered survivor shall be adjudicated as either a miner’s or a survivor’s claim depending upon the type of claim pending at the time of the covered individual’s death.

(d)

Time of payment

(1)

Miner’s claim

If a claim, filed under subsection (b) and adjudicated under subsection (c) as a miner’s claim, results in an award of benefits, benefits shall be payable beginning with the month of the filing of the denied claim that had included in its record a covered chest radiograph.

(2)

Survivor’s claim

If a claim, filed under subsection (b) and adjudicated under subsection (c) as a survivor’s claim, results in an award of benefits, benefits shall be payable beginning with the month of the miner’s death.

(e)

Contributing impact

The Secretary shall have the discretion to deny a new claim under subsection (b) in circumstances where the party opposing such claim establishes through clear and convincing evidence that a covered chest radiograph did not contribute to the decision to deny benefits in all prior claims filed by the covered individual or the covered survivor.

(f)

Limitation on filing of new claims

A new claim for benefits may be filed under subsection (b) only if the original claim was finally denied by a district director, an administrative law judge, or the Benefits Review Board established under section 21(b) of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 921(b)).

112.

Disclosure of employment and earnings information for Black Lung Benefits Act claims

(a)

Tax return information

Section 6103(l) of the Internal Revenue Code of 1986 is amended by adding at the end the following new paragraph:

(23)

Disclosure of return information to Department of Labor to carry out Black Lung Benefits Act

(A)

In general

The Commissioner of Social Security shall, on written request with respect to any individual, disclose to officers or employees of the Department of Labor return information from returns with respect to net earnings from self-employment (as defined in section 1402) and wages (as defined in section 3121(a) or 3401(a)) for employment for each employer of such individual.

(B)

Restriction on disclosure

The Commissioner of Social Security shall disclose return information under subparagraph (A) only for purposes of, and the extent necessary in, carrying out the proper administration of the Black Lung Benefits Act (30 U.S.C. 901 et seq.).

.

(b)

Social security earnings information

Notwithstanding section 552a of title 5, United States Code, or any other provision of Federal or State law, the Commissioner of Social Security shall make available to the officers and employees of the Department of Labor, upon written request, the Social Security earnings information of living or deceased individuals who are the subject of a claim under the Black Lung Benefits Act (30 U.S.C. 901 et seq.), which the Secretary of Labor may require to carry out such Act. Such information shall be made available in electronic form.

B

Reports to improve the administration of benefits under the Black Lung Benefits Act

121.

Strategy to reduce delays in adjudication

(a)

In general

Not later than 90 days after the date of enactment of this Act, the Secretary of Labor shall submit to the Committee on Health, Education, Labor, and Pensions and the Committee on Appropriations of the Senate and the Committee on Education and Labor and the Committee on Appropriations of the House of Representatives a comprehensive strategy to reduce the backlog of cases pending on such date of enactment before the Office of Administrative Law Judges of the Department of Labor.

(b)

Contents of strategy

The strategy under this section shall provide information relating to—

(1)

the current and targeted pendency for each category of cases before the Office of Administrative Law Judges of the Department of Labor;

(2)

the number of administrative law judges, attorney advisors supporting such judges, support staff, and other resources necessary to achieve and maintain the targeted pendency for each category of such cases;

(3)

the necessary resources to improve efficiency and effectiveness, such as equipment, training, use of reemployed annuitants, and administrative reforms;

(4)

the impact of sequestration, furloughs, and Federal Government shutdowns on increasing administrative burdens and the backlog of cases pending before such Office; and

(5)

with respect to claims filed under the Black Lung Benefits Act (30 U.S.C. 901 et seq.), the necessary resources needed to reduce the average pendency of cases to less than 12 months from the date of receipt of the case to the date of disposition of such case.

(c)

Consultation

In preparing such strategy, the Secretary of Labor shall consult with organizations that have ongoing interactions with the Office of Administrative Law Judges of the Department of Labor, including organizations that represent parties in cases under the Black Lung Benefits Act, the Longshore and Harbor Workers' Compensation Act (33 U.S.C. 901 et seq.), and Federal statutes regarding whistleblowers, wages and hours for employees, and immigration.

122.

GAO report on black lung program

(a)

In general

Not later than one year after the date of enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and Labor of the House of Representatives a report on any barriers to health care faced by coal miners with pneumoconiosis.

(b)

Contents

The report required under subsection (a) shall include—

(1)

an assessment of possible barriers to health care under the Black Lung Benefits Act (30 U.S.C. 901 et seq.) and the degree to which any barriers impact the ability of miners with legitimate medical needs, particularly such miners in rural areas, to access treatment for pneumoconiosis;

(2)

recommendations necessary to address issues, if any, relating to patient access to care under such Act; and

(3)

an evaluation of whether the benefit payments authorized under such Act, as amended by this Act, are sufficient to meet the expenses of disabled miners, surviving spouses, dependents, and other family members entitled to receive benefits under the Black Lung Benefits Act.

II

Standard for respirable dust concentration

201.

Standard for respirable dust concentration

Section 202 of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 842) is amended by adding at the end the following:

(i)

Reports

(1)

Retrospective study

(A)

In general

Beginning not later than 90 days after the date of enactment of the Black Lung Benefits Improvement Act of 2019, the Secretary shall conduct a retrospective study evaluating data collected using continuous personal dust monitors to determine whether to—

(i)

lower the applicable standard for respirable dust concentration to better protect the health of miners;

(ii)

increase the frequency for taking samples of respirable dust concentration, using continuous personal dust monitors;

(iii)

modify the engineering controls and work practices used by mine operators to comply with the applicable standard for respirable dust concentration;

(iv)

convert samples taken for shifts that are greater than 8 hours to an 8-hour equivalent concentration to more accurately assess the conditions of miners working on longer shifts; and

(v)

lower the applicable standard for quartz (crystalline silica) in respirable dust to better protect miners’ health.

(B)

Completion deadline

Not later than 450 days after the date of enactment of the Black Lung Benefits Improvement Act of 2019, the Secretary shall complete the study required by subparagraph (A) and report the findings of such study to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and Labor of the House of Representatives.

(2)

Subsequent studies

By August 1, 2025, and every 3 years thereafter, the Secretary shall conduct a new study as described in paragraph (1)(A) and report, by not later than one year after the commencement of the study, the findings of such study to the Committee on Health, Education, Labor, and Pensions of the Senate and the Committee on Education and Labor of the House of Representatives.

(3)

Revised standards

If any report of the Secretary under this subsection concludes that the applicable standard for respirable dust concentration should be lowered to protect the health of miners, or that the incidence of pneumoconiosis among coal miners in the United States, as reported by the National Institute for Occupational Safety and Health, has not been reduced from such incidence prior to the implementation of the most recent applicable standard for respirable dust concentration, the Secretary shall, consistent with the requirements of this section and section 101, accordingly revise such standard and any applicable sampling or testing procedures not later than 24 months after the publication of such report of the Secretary under this subsection.

.

III

Establishing the Office of Workers' Compensation Programs

301.

Office of Workers' Compensation Programs

(a)

Establishment

There shall be established, in the Department of Labor, an Office of Workers' Compensation Programs (referred to in this section as the Office).

(b)

Director

(1)

In general

The Office shall be directed by a Director for the Office of Workers' Compensation (referred to in this title as the Director) who shall be appointed by the President, by and with the advice and consent of the Senate.

(2)

Duties

The Director shall carry out all duties carried out by the Director for the Office of Workers' Compensation as of the day before the date of enactment of this Act.

(c)

Functions

The functions of the Office on and after the date of enactment of this Act shall include the functions of the Office on the day before the date of enactment of this Act, including all of its personnel, assets, authorities, and liabilities.

(d)

References to Bureau of Employees' Compensation

Reference in any other Federal law, Executive order, reorganization plan, rule, regulation, or delegation of authority, or any document of or relating to the Bureau of Employees' Compensation with regard to functions carried out by the Office of Workers' Compensation Programs, shall be deemed to refer to the Office of Workers' Compensation Programs.

IV

Severability

401.

Severability

If any provision of this Act, or an amendment made by this Act, or the application of such provision to any person or circumstance, is held to be invalid, the remainder of this Act, or an amendment made by this Act, or the application of such provision to other persons or circumstances, shall not be affected.