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Congress has established a number of programs to compensate or assist victims of certain specific
circumstances, including negligence, terrorism, and “acts of God.” Federal compensation
programs can be described by certain common attributes. These include aspects of program
administration; requirements for and determination of individual eligibility; eligibility of health
care providers; types of benefits provided; whether certain diseases are presumed to be eligible
for compensation; and the means by which the program is financed.
Though federal compensation programs display considerable diversity in these attributes, most
can be classified into one of three categories: (1) programs that primarily limit compensation or
assistance to specified groups of people, with little or no limitation of the types of injury that may
be compensated; (2) programs that primarily limit compensation or assistance for specified types
of injuries, with little or no limitation of the classes of individuals who may be compensated; and
(3) hybrid programs, which limit both the classes of eligible individuals and the compensable
injuries or diseases.
This report describes a number of federal programs that Congress established to compensate or
assist individuals who have suffered physical or psychological harm as a consequence of specific
events (including the actions of others), or who have suffered specific types of physical or
psychological harm. First, several program attributes—which are used to describe the specific
programs—are discussed in general. Next, selected compensation programs are presented in three
groupings, as mentioned above. Next, three veterans’ compensation programs are presented.
Veterans’ disability compensation is based on establishing a connection between an illness or
injury and military service. Congress has on three occasions granted a presumption of a service-
connection for a specific group of veterans. A final section describes four additional federal
assistance programs that do not fit into the above classifications, but that may nonetheless be of
interest to policymakers: The Federal Tort Claims Act, Stafford Act emergency and disaster
assistance, the World Trade Center Medical Monitoring and Treatment Program, and the Breast
and Cervical Cancer Treatment Program.
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Introduction ..................................................................................................................................... 1
Program Attributes .......................................................................................................................... 2
Program Administration...................................................................................................... 2
Individual Eligibility........................................................................................................... 2
Eligibility of Health Care Providers.................................................................................... 3
Benefits ............................................................................................................................... 3
Disease Presumptions ......................................................................................................... 4
Financing ............................................................................................................................ 4
Programs for Specified Classes of Individuals................................................................................ 5
Workers’ Compensation Systems .............................................................................................. 5
Public Safety Officers’ Benefits Program ................................................................................. 6
September 11th Victim Compensation Fund.............................................................................. 8
Programs for Specified Illnesses or Injuries.................................................................................. 10
National Vaccine Injury Compensation Program.................................................................... 10
Smallpox Vaccine Injury Compensation Program .................................................................. 12
Hybrid Programs ........................................................................................................................... 14
Black Lung Program ............................................................................................................... 14
Radiation Exposure Compensation Act (RECA) .................................................................... 17
Energy Employees Occupational Illness Compensation Program Act (EEOICPA) ............... 19
Marshall Islands Nuclear Claims Tribunal.............................................................................. 22
Ricky Ray Hemophilia Relief Fund Program ......................................................................... 24
Veterans’ Disability Compensation ............................................................................................... 25
Background ....................................................................................................................... 25
Atomic Veterans: Non-presumptive claims ...................................................................... 26
Atomic Veterans: Presumptive claims .............................................................................. 26
Vietnam Veterans .............................................................................................................. 27
Gulf War Veterans ............................................................................................................. 27
Selected Additional Federal Assistance Mechanisms.................................................................... 28
Federal Tort Claims Act .......................................................................................................... 28
Stafford Act Emergency and Disaster Assistance.................................................................... 29
World Trade Center Medical Monitoring and Treatment Program ......................................... 31
Breast and Cervical Cancer Treatment Program ..................................................................... 34
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Author Contact Information .......................................................................................................... 36
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In many instances, people who suffer physical or psychological injury, disease or death due to the
actions of others may gain compensation through civil actions in the courts. In addition, Congress
has established a number of programs to compensate or assist victims of certain specific
circumstances, including negligence, terrorism, and “acts of God.” The programs fall, broadly,
into three categories: (1) those that primarily limit compensation or assistance to specified groups
of people, with little or no limitation on the types of injury that may be compensated (e.g.,
workers’ compensation systems); (2) those that primarily limit compensation or assistance for
specified types of injuries, with little or no limitation of the classes of individuals who may be
compensated (e.g., the Vaccine Injury Compensation Program); and (3) hybrid programs, which
limit both the classes of eligible individuals, and the compensable injuries or diseases (e.g., the
Black Lung Program).
These compensation programs display considerable diversity in program design and
implementation. In the context of considering compensation for asbestos exposure, the
Government Accountability Office (GAO) reviewed four federal programs designed to
compensate individuals injured by exposure to harmful substances. GAO found that design of the
programs, the agencies that administer them, their financing mechanisms, benefits paid, and
eligibility criteria, including their standards of proof (the evidence claimants must provide to
support their claims), differed significantly.1
To assure responsible stewardship of available funds, a variety of approaches are used to
determine whether conditions stated in claims are actually related to the relevant employment or
incident, and should, therefore, be compensated. This matter is more easily resolved in the case of
acute injuries, such as a broken leg sustained from a fall, than it is for illnesses that emerge some
time following an exposure (often termed a latent period). Some programs, such as those for
workers’ compensation, evaluate claims administratively on a case-by-case basis, offering
claimants the opportunity to appeal denied claims. Other programs, particularly those dealing
with ionizing radiation or other hazardous exposures that may cause a number of different health
conditions, develop lists (often called tables) of compensable conditions. It is presumed that when
an eligible individual develops a listed condition, the condition is related to the exposure, and
compensation is provided. This is called a disease presumption.
Vaccine injury compensation programs incorporate both an injury table and a time window
following vaccination. Listed conditions that arise within the time window are presumed to be
causally related to vaccination, and are compensated. Time limitations may not be applicable in
many other circumstances, either because exposures did not occur at discrete or known times, or
because some conditions (e.g., some cancers) may arise decades after exposure, but still be
causally related to an exposure. When a program does not stipulate time limitations, there is
nonetheless often the requirement that a claimant provide evidence that the onset of the condition
did not precede the relevant exposure or incident.
1 Government Accountability Office (GAO), “Federal Compensation Programs: Perspectives on Four Programs,”
GAO-06-230, November 2005. GAO evaluated the Black Lung Program, the Vaccine Injury Compensation Program
(VICP), the Radiation Exposure Compensation Program (RECP), and the Energy Employees Occupational Illness
Compensation Program (EEOICP).
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Burdens to demonstrate or refute the eligibility of individuals, or causality for health conditions,
vary among programs. Disease presumptions help shift the burden of proof from the claimant to
the program administrator, in what is an intrinsically adversarial system. Disease presumptions
ideally flow from scientific evidence showing a causal relationship between an exposure and a
subsequent disease. But there is no bright line in medical science beyond which a causal
relationship has been demonstrated, and a presumption should be provided. Further, it is not
generally possible to know, for a specific individual, whether a condition is causally related to the
exposure of interest, or arose for some other reason. Rather, when evidence suggests that exposed
populations face an increased risk of developing certain conditions, the presumption of causality
may be extended to all individuals in that population, in accordance with the compassionate intent
that underpins many of these programs.
This report describes a number of federal programs that Congress established to compensate or
assist individuals who have suffered physical or psychological harm as a consequence of specific
events (including the actions of others), or who have suffered specific types of physical or
psychological harm. First, several program attributes—which are used subsequently to describe
the specific programs—are discussed in general. Next, selected compensation programs are
presented in three groupings, as mentioned above: (1) programs to compensate specified groups
of individuals; (2) programs to compensate for specified types of illness or injury; and (3) hybrid
programs. Next, three veterans’ compensation programs are presented. Veterans’ disability
compensation is based on establishing a connection between an illness or injury and military
service. Congress has on three occasions granted a presumption of a service-connection for a
specific group of veterans. A final section describes four additional federal assistance programs
that do not fit into the above classifications, but that may nonetheless be of interest to
policymakers: the Federal Tort Claims Act, Stafford Act emergency and disaster assistance, the
World Trade Center Medical Monitoring and Treatment Program, and the Breast and Cervical
Cancer Treatment Program.
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Each of the program descriptions in subsequent sections of this report include discussion of
certain program attributes. Following a background discussion of each program, including the
basis for congressional action, program attributes that are described include:
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This section describes the program’s statutory authority and supporting regulations, if not already
mentioned in the background discussion; the agency or agencies responsible for its
administration; and relevant topics such as: how payment decisions are made, how denials may
be appealed (including whether agency decisions are subject to judicial review), and whether
attorneys fees are covered.
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This section describes individuals who are potentially eligible for compensation or assistance,
based upon factors such as employment, exposure to a hazard, or the development of a specific
disease.
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Some of the programs discussed will reimburse individuals or their health care providers for the
costs of eligible health care services. Of these programs, some will reimburse any licensed health
care provider, unless that provider has been excluded, for cause, from participation. Others
restrict, up front, the types of providers that may be reimbursed, in an effort to improve the
quality of services provided, among other factors. Restricting provider eligibility can improve the
quality of care by ensuring that providers have experience in treating rare conditions. For
example, Congress required, in the Black Lung Program, the establishment of a network of black
lung clinics, to provide specialized care in areas where miners typically live. (This program is
discussed further in a subsequent section of this report.) Some state workers’ compensation
programs also establish specialized provider networks, staffed by occupational medicine
physicians and other specialists. A recent study found that use of a specialized provider network
by the Louisiana workers’ compensation system reduced lost work time, and was less costly,
compared with traditional case management.2
Provider restrictions may also improve program accountability, when eligible providers are
trained, for the purposes of the program, to accurately identify eligible disease conditions, and
exclude other conditions from coverage. Specialized provider networks can serve as centers for
clinical research, and sources of outreach and training to general practitioners, who may see these
conditions very rarely. Requiring the exclusive use of selected or in-network providers could limit
access to care, though, if providers are not geographically well-placed with respect to the
individuals they serve.
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This section describes the benefits (typically cash) that eligible individuals may receive. These
include one or more of the following: (1) a benefit for death or disability; (2) replacement of lost
income; and (3) payment or reimbursement of health care costs. Compensation may be provided
as one-time or lump-sum payments, as payment or reimbursement for needs as they accrue, or a
combination of mechanisms. For most of the programs described in this report, compensation for
health care costs, if provided, is limited to those health conditions that are related to the
employment or incident being addressed. These programs do not, therefore, constitute general
health insurance.
In some cases, the program serves as a secondary payor, and any comparable benefits paid by
third parties are deducted from the program benefit. The program may also be considered as a
third party payor by other benefits programs, which may reduce their payments accordingly,
unless the primary program’s benefits are protected from recoupment by statute. Benefits also
vary in terms of whether they are considered as taxable income, and whether they are considered
in determining eligibility for public benefit programs such as Medicaid and Food Stamps.
2 Edward J. Bernacki et al., “A Preliminary Investigation of the Effects of a Provider Network on Costs and Lost-Time
in Workers’ Compensation,” Journal of Occupational & Environmental Medicine, vol. 47(1), pp. 3-10, January 2005.
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For those programs with lists (or “tables”) of presumed diseases, this section discusses the
presumptive conditions, and the approach or approaches used to develop the list. Lists may be
developed through a variety of mechanisms. Lists may be provided in statute (e.g., some radiation
exposure programs). They may be developed through rulemaking (e.g., the vaccine injury
compensation programs). Scientific advisory groups may be tasked with identifying diseases for
possible inclusion in a presumptive list (e.g., veterans’ compensation following exposure to Agent
Orange).
Disease presumptions may be rebuttable. For example, many state workers’ compensation laws
provide rebuttable presumptions that lung cancer in firefighters who don’t smoke be considered
occupationally related. Program administrators could rebut the presumption—saying that other
behaviors on an individual’s part, or other factors, were more likely to have caused the cancer—
and deny the claim.
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The section describes the mechanism(s) by which the program is financed. Examples include
annual appropriations, special appropriations, and payroll and excise taxes.
In its evaluation of four federal compensation programs,3 GAO found that:
... the federal role in all four programs has expanded significantly over time. All four have
expanded to provide eligibility to additional categories of claimants, cover more medical
conditions, or provide additional benefits. As might be expected, as the federal role for these
four programs has grown, so have their costs. Beyond the costs associated with expanded
eligibility, increasing medical costs and new research on exposure levels and medical
conditions associated with that exposure that could lead to expanded eligibility may further
increase program costs. The difficulty in estimating the actual cost of these programs may be
due to the inherent difficulty of estimating the number of claimants and anticipating
expansions of the programs. However, because these programs may expand significantly
beyond the initial cost estimates, policymakers must carefully consider the cost and
precedent-setting implications of establishing any new federal compensation programs,
particularly in light of the current federal deficit.4
3 The Black Lung Program, the Vaccine Injury Compensation Program, the Radiation Exposure Compensation
Program, and the Energy Employees Occupational Illness Compensation Program.
4 GAO, “Federal Compensation Programs: Perspectives on Four Programs,” GAO-06-230, pp. 4-5, November 2005.
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Workers’ compensation systems have been established in every state in accordance with state
laws. Together, these cover the vast majority of private sector workers in the United States.
Longshore and harbor workers are covered by a special federal law.6 U.S. government employees
are covered by the Federal Employees’ Compensation Act (FECA).7 These compensation systems
vary in particulars, but are characterized in general by the following principles. When employees
suffer injuries on the job, their employers are obligated to pay the cost of their medical care and
(partial) replacement of wages during the period of disability. The system is administrative rather
than court-oriented, as fault need not be determined. In view of the relatively prompt and
guaranteed benefits, workers do not have standing to sue their employers for injuries, except in
very special circumstances.
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Employees apply for benefits through their employers or the employer’s insurer. The Federal
Employees Compensation Program and the Longshore and Harbor Workers’ Compensation
Program are administered by the Department of Labor, Employment Standards Administration,
Office of Workers’ Compensation Programs. These federal programs, and state governments,
have appeal systems available in cases of disputes.
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The vast majority of employees in the United States are covered by workers’ compensation.
Benefits become available in cases of (in typical statutory language) “personal injury or death by
accident arising out of and in the course of employment.”
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Regulations for the Federal Employees Compensation program define physicians, hospitals and
other providers as any such parties currently licensed under state law, and provide procedures for
exclusion of providers under certain circumstances. “Qualified” providers are those that have not
been excluded under these procedures. Grounds for exclusion include certain criminal conduct,
exclusion from participation in other federal or state programs, fraud, and certain billing
irregularities.8 Most states give the employee the choice of physician, at least in the first instance.
5 This section was written by Scott Szymendera, Domestic Social Policy Division.
6 The Longshore and Harbor Workers’ Compensation Act (33 U.S.C. §§ 901 et seq.). Railroad and maritime (high seas)
workers can make use of special federal laws, but these are court-oriented liability laws rather than true workers’
compensation schemes.
7 5 U.S.C. Chapter 81.
8 20 C.F.R. §§ 10.815 et seq.
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Medical costs are fully covered. Wage replacement for total disability (whether temporary or
permanent) is most often at a rate of two-thirds of the employee’s wage, but limited to a
maximum percent of the state’s average wage for all workers. Benefits in many states are subject
to offset for Social Security or unemployment insurance. Permanent partial disability may be
compensated according to “percentage” of disability and may be limited by time or cumulative
dollar amount. Some specific types of injuries, especially loss of certain body parts or functions,
are compensated by a set schedule of dollar amounts or weeks-equivalent of wages.
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Not applicable. In principle, occupational diseases are covered as well as occupational injuries. In
practice, though, disease claims are much more difficult to sustain. The difficulty arises most
often because it is usually hard to prove that a disease was caused by a particular employment.
Also, long-latency diseases may be manifested after the period allowed for filing claims has
ended. In many states, moreover, explicit restrictions are placed on benefits for specific diseases,
especially of the respiratory type. These may require a certain minimum exposure to the hazard,
or a maximum period between exposure and disability, or they may require that there be total
disability.
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In 2004, benefits nationwide totaled $56 billion, of which $29.9 billion was wage replacement
and $26.1 billion was for medical care. Employer costs (which include insurance premiums and
administration) were $87.4 billion. This was the equivalent of $1.76 for each $100 of payroll.
Larger employers tend to “self-insure” (i.e., pay benefits directly out of their own resources).
Smaller employers9 meet their obligations through insurance. Some state governments operate
workers’ compensation insurance funds; of these, some are legal monopolies, others allow
competition with private insurers.
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Various rehabilitation and training benefits must be made available under certain circumstances.
Employees may be subject to loss of part or all of their wage replacement if they do not cooperate
with the rehabilitation program.
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The Public Safety Officers’ Benefits Act (P.L. 94-430) established the Public Safety Officers’
Benefits (PSOB) program to provide one-time compensation for line-of-duty death or permanent
9 These terms are loosely defined, but “small” employers would commonly be those with less than 1,000 employees.
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and total disability.10 The program also provides financial assistance for higher education, and
certain additional support services, for the spouses and children of eligible public safety officers.
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The PSOB program is administered by the Bureau of Justice Assistance (“the Bureau”) in the
Department of Justice. Claims are managed administratively. The Bureau is authorized to use
appropriated funds to conduct appeals of public safety officers’ death and disability claims. This
includes capped reimbursement of claimants’ attorneys’ fees, for those claimants who obtain these
services during the initial claims and/or appeals processes.
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The Public Safety Officers’ Benefits Act initially covered state and local law enforcement officers
and firefighters. Subsequently, Congress added federal law enforcement officers and firefighters;
members of federal, state, and local public rescue squads and ambulance crews; Federal
Emergency Management Agency (FEMA) personnel; state, local and tribal emergency
management and civil defense agency employees; and chaplains serving public agencies in an
official capacity. Current law provides that law enforcement officers, firefighters, members of
rescue squads or ambulance crews, and chaplains are eligible if “serving a public agency in an
official capacity, with or without compensation.”11 (Emphasis added.)
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Not applicable. The program does not provide a health care benefit.
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The PSOB program provides death benefits in the form of a one-time financial payment to the
eligible survivors of public safety officers whose deaths are the direct and proximate result of a
traumatic injury sustained in the line of duty, and provides disability benefits for public safety
officers who have been permanently and totally disabled by a catastrophic personal injury
sustained in the line of duty, if that injury permanently prevents the officer from performing any
substantial and gainful work. Medical retirement for a line-of-duty disability does not, in and of
itself, establish eligibility for benefits. For each death and disability claim, the award amount is
solely determined by the actual date of the officer’s death or disability.
At its 1976 inception, the PSOB program provided only a death benefit; in 1990, the program
added the disability benefit. The act established the payment level at $50,000 in 1976. It was
increased to $100,000 in November 1988, and to $250,000 in October 2001, retroactive to
January 1, 2001. The amount is pegged to the Consumer Price Index and is adjusted each fiscal
year. The FY2008 benefit amount is $303,064. The act requires the Bureau to expedite payments
for line-of-duty deaths or disabilities related to a terrorist attack. Benefits are reduced for
10 42 U.S.C. §§ 3796 et seq. For more information, see CRS Report RL34413, Public Safety Officers’ Benefits (PSOB)
Program, by Nathan James, and Department of Justice, Office of Justice Programs, Bureau of Justice Assistance,
“Public Safety Officers Benefits Program,” at http://www.ojp.usdoj.gov/BJA/grant/psob/psob_main.html.
11 42 U.S.C. § 3796b.
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individuals receiving certain other death or disability benefits, and certain other benefit programs
reduce benefits if PSOB program compensation is received.
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The act and program regulations do not limit the types of compensable injuries, but stipulate only
the compensable outcomes. The act provides the benefit for individuals who have “died as the
direct and proximate result of a personal injury sustained in the line of duty,” or who have
become “permanently and totally disabled as the direct result of a catastrophic injury sustained in
the line of duty.”12 The law also provides, though, that an otherwise eligible individual shall be
eligible for the death benefit as a result of a fatal heart attack or stroke suffered within 24 hours of
“non routine stressful or strenuous physical ... activity” performed while on duty.13 (This
presumption is not rebuttable.) Otherwise, the program is not designed to compensate public
safety officers for chronic diseases, although events associated with progressive disease may be
covered if line-of-duty injury (e.g., carbon monoxide poisoning) is a substantial contributing
factor in causing a death.
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The program received appropriations of $75 million in FY2008, including $3 million for its
administration. The death benefits (about 88% of the total) are classified as a mandatory
expenditure, and the disability and educational benefits as discretionary.
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The September 11th Victim Compensation Fund of 2001 (P.L. 107-42) was signed into law on
September 22, 2001, establishing a program to compensate any individual (or the personal
representative of a deceased individual) who was physically injured or killed as a result of the
terrorist attacks. A victim (or personal representative) could seek no-fault compensation from the
program, or could bring a tort action against an airline or other party, but could not do both
(unless naming a terrorist as the other party).
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On November 26, 2001, Attorney General Ashcroft appointed Kenneth R. Feinberg as special
master to distribute the fund that Congress created without any financial cap. The Special Master
12 42 U.S.C. § 3796.
13 Ibid.
14 This section was written by Celinda Franco, Domestic Social Policy Division. See CRS Report RL31716, Homeland
Security: 9/11 Victim Relief Funds, by Celinda Franco; and CRS Report RL31179, The September 11th Victim
Compensation Fund of 2001, by Henry Cohen.
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developed and promulgated regulations governing the administration of the fund.15 The deadline
for filing a claim was December 22, 2003.
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Eligible claimants included individuals present at the World Trade Center, Pentagon, or
Shanksville, Pennsylvania site at the time or in the immediate aftermath of the crashes and who
suffered physical harm, as the direct result of the terrorist-related aircraft crashes.16 A personal
representative, in general, was an individual appointed by a court of competent jurisdiction as the
personal representative of the decedent or as the executor or administrator of the decedent’s will
or estate.17 If no personal representative was appointed by a court, the Special Master was
authorized to determine who would be the personal representative for purposes of compensation
under the Fund.
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Not applicable. The program did not provide a health care benefit.
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Of the 2,973 eligible families of dead victims, 2,880 filed claims.18 The average award for
families of victims killed in the attacks exceeded $2 million. In addition, 2,682 valid injury claims
were filed and processed. The average award for injured victims was nearly $400,000. The
overall payout of the program was over $7.1 billion.19 Determinations were final and were not
subject to judicial review.
The fund has issued awards for personal injury claims that are quite varied, reflecting the varied
nature of the injury, the recovery, the existence or lack of existence of a disability or incapacity,
the long-term prognosis, and the ongoing pain and suffering or lack thereof for each victim. To
date, awards have ranged from a low of $500 to a high of over $8.6 million after offsets.20
Congress mandated that awards be offset by life insurance and other collateral source
compensation. In the regulations the Special Master defined “collateral sources” as not including
tax benefits received from the federal government as a result of the Victims of Terrorism Tax
Relief Act. He also determined that the amount of offsets for pension funds, life insurance, and
15 67 Federal Register 11233-11247, March 13, 2002, (28 C.F.R. § 104).
16 28 C.F.R. §104.2.
17 28 C.F.R. §104.4.
18 Seventy people chose to file law suits naming airlines and government agencies and thereby rejected the federal
government’s offer of compensation. Twenty-three eligible families of dead victims took no action. These families are
no longer eligible to receive compensation from the fund.
19 U.S. Department of Justice, Final Report of the Special Master for the September 11th Victim Compensation Fund of
2001, vol. 1, p.1.
20 Department of Justice, September 11th Victim Compensation Fund of 2001: Compensation for Personal Injury
Victims, Award Payment Statistics, as of January 28, 2005, at http://www.usdoj.gov/archive/victimcompensation/
payments_injury.html; and Compensation for Deceased Victims, Award Payment Statistics, as of January 28, 2005, at
http://www.usdoj.gov/archive/victimcompensation/payments_deceased.html.
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similar collateral sources be reduced by amounts of self-contributions made, or premiums paid
by, the victim.
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The program provided compensation for physical injury or death, from any cause, that resulted
from an individual’s presence at the sites at the time of the crashes or in their immediate
aftermath. For all claimants other than rescue workers, the immediate aftermath21 was defined as
the period of time that included 12 hours after the time of the crashes. For rescue workers, the
immediate aftermath included the 96-hour period after the crashes. Physical harm22 was defined
as a physical injury to the body treated by a medical professional within 24 hours of the
sustaining the injury, or within 24 hours of rescue, or within 72 hours of injury or rescue for
victims who were unable to realize immediately the extent of their injuries or whose treatment by
a medical professional was not available on September 11, or within a time period determined by
the Special Master for rescue personnel who did not or could not obtain treatment by a medical
professional within 72 hours. The program was not intended to provide compensation for
illnesses or injuries that manifested after the stipulated time periods.
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The overall payout of the program was more than $7 billion. Funding for the program was
authorized under the 2001 Emergency Supplemental Appropriations Act for Recovery From and
Response to Terrorist Attacks on the United States (P.L. 107-38). The law provided that not less
than $20 billion be available for disaster recovery activities and assistance related to the terrorist
acts in New York, Virginia, and Pennsylvania.
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The National Childhood Vaccine Injury Act of 1986, as amended, provides compensation to
persons who suffer injury or death from specified vaccines. It establishes a National Vaccine
Injury Compensation Program (VICP) to provide prompt, no-fault, but limited, recovery.24
Claimants who are denied an award under the program, or are dissatisfied with an award, may sue
vaccine manufacturers and administrators under state tort law, as modified by the federal statute.25
Persons injured by a vaccine administered after October 1, 1988, with claims of more than
21 28 C.F.R. §104.2(b).
22 28 C.F.R. §104.2(c).
23 This section was written by Henry Cohen, American Law Division, and Pamela W. Smith, Domestic Social Policy
Division.
24 See Health Resources and Services Administration (HRSA), National Vaccine Injury Compensation Program
(VICP), at http://www.hrsa.gov/vaccinecompensation/.
25 42 U.S.C. §§ 300aa-1 et seq.
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$1,000, may not sue a vaccine administrator or manufacturer without first applying for
compensation under the program.
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The program is jointly administered by the Department of Health and Human Services (HHS), the
Department of Justice (DOJ), and the United States Court of Federal Claims. Claims for
compensation under the program are served on the Secretary of HHS and filed in the United
States Court of Federal Claims. HHS (through HRSA, the Health Resources and Services
Administration) reviews the medical information in the claim, and this review is sent to DOJ,
which represents the Secretary of HHS. DOJ reviews the legal aspects of the claim.
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Any person who has been injured or who has died as a result of the administration of a vaccine
set forth in the Vaccine Injury Table contained in the statute may file a petition for compensation
under the program. To be eligible to file a claim, the effects of the person’s injury must have:
lasted for more than six months after the vaccine was given; or resulted in a hospital stay and
surgery; or resulted in death.
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No restrictions.
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Compensation under the program is limited to (1) actual non-reimbursable and reasonable
projected non-reimbursable expenses for medical and custodial care and rehabilitation, and
related expenses; (2) in the event of a vaccine-related death, $250,000 for the estate of the
deceased; (3) actual and anticipated loss of earnings; (4) up to $250,000 for actual and projected
pain and suffering and emotional distress; and (5) reasonable attorneys’ fees and other costs.
ȱȱ
A Vaccine Injury Table is established in statute, and may be modified by the Secretary of HHS
through rulemaking. Individuals may petition the Secretary to amend the table. The table
currently lists specified compensable adverse events, which must occur within specified time
frames, for nine different types of vaccines.26 Eight types of vaccines which were recently added
to the list do not yet have specified compensable conditions or time frames. Four of these were
listed directly, and another four were added in a separate category for “[a]ny new vaccine
recommended by the Centers for Disease Control and Prevention [CDC] for routine
26 HRSA, Vaccine Injury Table, at http://www.hrsa.gov/vaccinecompensation/table.htm. Vaccines for which
compensable conditions have been established are: tetanus toxoid-containing vaccines; pertussis antigen-containing
vaccines; measles, mumps and rubella virus-containing vaccines in any combination; rubella virus-containing vaccines;
measles virus-containing vaccines; polio live virus-containing vaccines; polio inactivated-virus containing vaccines;
Hepatitis B antigen-containing vaccines; and vaccines containing live, oral, rhesus-based rotavirus.
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administration to children, after publication by [the Secretary of HHS] of a notice of coverage.”27
Compensable adverse events typically include anaphylaxis or anaphylactic shock, infections
caused by certain live-virus vaccines, any acute complications (including death) that result from
these events, and a number of conditions that are specific to certain vaccines.
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Compensation under the program is paid from the Vaccine Injury Trust Fund, which is funded by
a manufacturers’ excise tax on certain vaccines. In FY2007, $130 million in claims and
administrative expenses were paid, $344 million in deposits were received ($241 million from
excise taxes and $103 million from interest on investments), and the trust fund ended the year
with a balance of $2.602 billion.28
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In January 2003, the Secretary of Health and Human Services (HHS) declared that the potential
for a bioterrorist incident made it advisable to administer, on a voluntary basis, smallpox vaccine
and related countermeasures to certain civilians—such as health care workers and public safety
officers—who may be called upon to respond in the event of a smallpox attack.29 At that time,
liability protections were already in place for parties who manufacture and who would be
involved in distribution and administration of smallpox countermeasures, but there was not yet a
mechanism to compensate individuals who may be harmed by the covered products. Based on
historical information, 1% of those who receive the smallpox vaccine may suffer non-life-
threatening adverse reactions, and one or two people per million may die as a result of vaccine-
related adverse reactions.30 In April 2003, Congress passed the Smallpox Emergency Personnel
Protection Act of 2003 (SEPPA, P.L. 108-20), requiring the federal government, through the
Secretary of HHS, to establish a program to provide to eligible individuals or their survivors, for
covered injuries, payment for related medical care, lost employment income, and death benefits.31
The program covers injuries that the Secretary finds to be vaccine-related, occurring in
individuals who volunteered for vaccination, or those who were infected after contact with those
individuals (so-called “vaccinia contacts”).
27 Vaccines that were specifically listed recently are Hemophilus influenzae (type b polysaccharide conjugate
vaccines), varicella vaccine, rotavirus vaccine, and pneumococcal conjugate vaccines. Vaccines recently added in the
CDC-recommended category are hepatitis A, trivalent influenza, meningococcal (conjugate and polysaccharide), and
human papillomavirus (HPV).
28 See the Department of Treasury, Vaccine Injury Compensation Reports, at http://www.treasurydirect.gov/govt/
reports/tfmp/vaccomp/vaccomp.htm.
29 68 Federal Register 4212-4213, January 28, 2003. The declaration was extended several times, and expired on
January 23, 2008. 72 Federal Register 4013-4014, January 29, 2007.
30 Centers for Disease Control and Prevention, smallpox information at http://www.bt.cdc.gov/agent/smallpox/.
31 See CRS Report RL31960, Smallpox Vaccine Injury Compensation, by Susan Thaul.
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The Smallpox Vaccine Injury Compensation Program is administered by HRSA.32 The program
borrows certain elements from the PSOB program, including the amount of the death benefit, and
the categorization and prioritization of survivors. The law does not permit judicial review of the
Secretary’s actions.
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Eligible individuals are: (1) those who were vaccinated in the context of a covered occupation
(including health care workers, law enforcement officers, public safety personnel, and supporting
personnel), who received a smallpox vaccine as a participant in an approved smallpox emergency
response plan, and who sustained a compensable injury (described below); (2) certain vaccinia
contacts, namely, those individuals who are infected as a result of contact with individuals
described in (1); and, (3) certain survivors and representatives of the estates of deceased
individuals described in (1) and (2).33
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No restrictions.
ȱ
The benefits available under the program include compensation for medical care, lost
employment income, and survivor death benefits. Benefits are generally not taxable. There are no
deductibles, caps or cost-sharing requirements for medical benefits. However, the Secretary may
limit the payment of such benefits to the amounts he considers reasonable for those services and
items he considers reasonable and necessary. In addition, payment of medical benefits or
reimbursement of costs for medical services and items by the program is secondary to the
obligations of any third-party payor. Requesters generally must provide the names of all other
third-party payors that have already provided benefits, that are expected to do so in the future, or
that may have a duty to do so. These payers include, but are not limited to, insurance companies,
workers compensation programs, the Federal Employees Compensation Program, and the PSOB
program.
The death benefit is in the amount specified by the PSOB program. (The FY2008 benefit amount
is $303,064.) Any death benefit to survivors is reduced by the amount that the smallpox vaccine
injury compensation program had paid as lost employment income benefits to the deceased. The
death benefit may not be in addition to a PSOB disability or death benefit. It may, however, be
made in addition to any payment or reimbursement for medical care made to that person prior to
death.
32 See HRSA, Smallpox Vaccine Injury Compensation Program information, at http://www.hrsa.gov/smallpoxinjury/.
Program regulations are at 42 C.F.R. Part 102.
33 Eligibility was restricted to individuals who were vaccinated as part of an approved smallpox response plan, and their
contacts. However, since smallpox vaccine is not commercially available, it is likely that most or all of the individuals
who received the vaccine would have met this definition.
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Smallpox vaccine recipients are eligible for compensation for 12 covered conditions. Vaccinia
contacts are eligible for compensation for 11 of these conditions.34 The onset of each
compensable condition must occur within a specified time following vaccination.
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In April 2003, coincident with passage of SEPPA, Congress provided, in the Emergency Wartime
Supplemental Appropriations Act, 2003 (P.L. 108-11), $42 million in no-year funds for the
Secretary of HHS to compensate eligible individuals who were injured as a result of smallpox
vaccination. Congress has since rescinded $30 million of that amount.35 As of January 2007,
HRSA had received 62 claims, and had paid one death claim of $262,100, 10 medical expense
and injury claims totaling $1,616,000, and five claims for lost employment income totaling
$94,352. Additional claims were pending.36 The agency also reported spending slightly more than
$2 million in administrative costs, including the costs of identifying third-party payors and
establishing annuities.37
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As an alternative to benefits under state workers’ compensation programs, which were found to
be rarely accessible to coal miners suffering from pneumoconiosis (black lung), the Black Lung
Benefits Act provides cash compensation and medical care benefits to black lung victims, and
cash payments to their survivors.39
34 Compensable conditions are: significant local skin reaction; Stevens-Johnson Syndrome; inadvertent inoculation;
generalized vaccinia; eczema vaccinatum; progressive vaccinia; postvaccinial encephalopathy, encephalitis or
encephalomyelitis; fetal vaccinia; secondary infection; anaphylaxis or anaphylactic shock (vaccinia contacts not
covered); vaccinial myocarditis, pericarditis, or myopericarditis; and, death resulting from any of the above injuries
when the injury arose within the specified time.
35 P.L. 108-447, Section 224 (December 8, 2004), rescinded $20 million, and P.L. 109-149, Section 220 (December 30,
2005), rescinded an additional $10 million.
36 The CDC reports that as of January 2007, approximately 45,000 civilian volunteers have received smallpox
vaccinations. CDC Washington Office, March 5, 2007.
37 HRSA Office of Legislation, February 26, 2007.
38 This section was written by Scott Szymendera, Domestic Social Policy Division.
39 30 U.S.C. §§ 901-945; 26 U.S.C. §§ 4121 and 9501.
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The program is administered by the Office of Workers Compensation Programs in the
Department of Labor. Prior to 2003, the Part B benefit (pertaining to the oldest claims) was
administered by the Social Security Administration.
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Coal miners totally disabled by black lung disease, and their surviving dependents, are eligible for
benefits. A claim must meet three general conditions: (1) the miner must have (or if deceased,
must have had) black lung disease; (2) the miner must be totally disabled by the disease; and (3)
the disease must have arisen out of coal mine employment. Certain statutory presumptions of
eligibility may come into play in establishing qualification for benefits, in addition to medical
evaluations. For example, if a miner with pneumoconiosis worked in coal mines for more than 10
years, there is a presumption that the disease arose out of that employment. Claimants who filed
through June 1973 (December 1973 in the case of survivors) were judged eligible under Part B
program definitions; later claims are determined under somewhat more stringent Part C
definitions. Coverage under Part B vs. Part C also differs depending on the date of claimants’ last
coal mine employment.
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There are no restrictions for miners receiving treatment for pneumoconiosis. However, in
establishing the diagnosis of pneumoconiosis, an essential element of individual eligibility,
providers who submit certain evidence such as chest X-rays may require special certifications
(e.g., board certification in radiology.)
Congress created the Black Lung Clinics Program (BLCP) to provide specialized pulmonary and
respiratory care to coal miners who otherwise could not access specialized health care.40 Eligible
individuals are not required to receive care through a Black Lung Clinic. The BLCP is
administered by HRSA.41
ȱ
Part B and Part C benefits are the same amount. Basic monthly cash compensation is equal to
37.5% of a base GS-2 federal salary, increased to as much as 75% of a GS-2 salary for those with
dependents (or if there are multiple survivors). The current range of rates is from $599 to $1,197
per month. Neither the Part B nor Part C benefit is taxable.
The program pays for the full cost of any medical treatment and care of eligible disabled miners
related to black lung disease, including reasonable transportation costs. The program provides
two types of medical services related to black lung disease: diagnostic testing for all miner-
40 The Black Lung Benefits Reform Act of 1977 (P.L. 95-239), as amended, February 27, 1985, authorized support of
the BLCP to evaluate and treat coal miners with respiratory impairments.
41 HRSA, Black Lung Clinics Program, at http://ruralhealth.hrsa.gov/funding/BLCP/. See also, White House Office of
Management and Budget, Program Assessment, Black Lung Clinics, 2006, at http://www.whitehouse.gov/omb/
expectmore/detail/10003534.2006.html.
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claimants to determine the presence or absence of black lung disease and the degree of associated
disability; and, for miners entitled to monthly benefits, medical coverage for treatment of black
lung disease and disability. Diagnostic testing includes a chest X-ray, a pulmonary function study
(breathing test), an arterial blood gas study, and a physical examination. Medical coverage
includes (but is not limited to) costs for prescription drugs, office visits, and hospitalizations. Also
provided, with specific approval, are items of durable medical equipment, such as hospital beds,
home oxygen, and nebulizers; outpatient pulmonary rehabilitation therapy; and home nursing
visits.42
Black lung beneficiaries also may receive benefits under state workers’ compensation or black
lung laws, social security or other disability or retirement systems, or unemployment
compensation programs. Part B benefits are reduced by comparable payments received under
workers’ compensation, disability insurance, or unemployment compensation laws; they also are
subject to a reduction for earnings. Part C benefits are reduced by comparable workers’
compensation payments, but not by disability insurance or unemployment compensation
payments; a reduction for earnings applies to claims made after 1981, and the receipt of Part C
benefits can cause a reduction in social security disability benefits.
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Black Lung Program regulations require that certain medical evidence must be established to
support a diagnosis of pneumoconiosis. Then, regulations establish certain presumptions in
extending eligibility to miners with pneumoconiosis, including a rebuttable presumption that a
miner who is suffering or suffered from pneumoconiosis, and who was employed for 10 or more
years in one or more coal mines, developed pneumoconiosis as a result of such employment; and
an irrebuttable presumption that the death or total disability of a miner with pneumoconiosis is
due to pneumoconiosis.43
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The costs of the Part B program (cash compensation and related administrative expenses) are
financed by federal appropriations from general revenues. Part C costs (cash payments, medical
costs, and federal administrative costs) are largely funded by the Black Lung Disability Trust
Fund, which in turn is financed by: (1) an excise tax on coal; (2) loans from the federal Treasury,
if necessary because coal tax revenues are not sufficient; and (3) small amounts attributable to
interest on trust fund investments in government securities, certain fees and penalties collected by
the trust fund, and recoupment of some beneficiaries’ payments. Some Part C benefits are paid
directly by individual coal mine operators who have been identified “responsible” under specified
rules.
As the Part C trust fund was inadequate to meet claims in the early years, it borrowed
substantially from the Treasury and currently owes $10 billion. In recent years, coal tax receipts
have been approximately equal to benefit payments, but the fund has had to borrow from the
42 Department of Labor, Compliance Guide to the Black Lung Benefits Act, at http://www.dol.gov/esa/regs/
compliance/owcp/blbenact.html.
43 20 C.F.R. §§ 718.301 et seq.
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Treasury to meet its interest obligations to the Treasury. Proposals have been made for retiring
this debt (e.g., H.R. 3915 in the 109th Congress).
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The Radiation Exposure Compensation Act (RECA) of 1990 established a trust fund to provide
compassionate lump-sum payments to individuals who have contracted certain cancers and other
serious diseases that are presumed to be the result of their exposure to ionizing radiation from
above-ground nuclear weapons testing or from various activities in connection with uranium
mining.44 The act was substantially amended in 2000 to expand eligibility (as discussed below)
and to require GAO to report on program status every 18 months.45
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The Radiation Exposure Compensation Program (RECP) is administered by the Department of
Justice, Civil Division.46
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As originally enacted, RECA established two categories of claimants: (1) downwinders (i.e.,
civilians who lived in specified counties in Nevada, Arizona, and Utah downwind from the
Nevada Test Site in the 1950s and early 1960s) who developed one of 13 types of cancer; and (2)
uranium miners in certain western states who worked in underground mines between 1947 and
1971 and who developed lung cancer or certain nonmalignant respiratory diseases. Immediately
after its enactment, RECA was amended to include a third category of claimant: government
employees and others who participated on-site in an above-ground test, and who developed one
of the same 13 cancers for which downwinders may be compensated.47 RECA was more
substantially modified and expanded in 2000.48 The changes included creating two new claimant
populations (i.e., uranium mill workers and uranium ore transporters) and adding six types of
cancer to the list of cancers for which downwinders and on-site participants may be compensated.
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No restrictions; however, RECA authorizes grants for programs to screen potential claimants,
provide referrals for treatment, help with claims documentation, and develop public information
44 P.L. 101-426 (October 15, 1990), 42 U.S.C. § 2210 note.
45 The most recent report is GAO, “Radiation Exposure Compensation Act: Program Status, GAO-07-1037R,
September 7, 2007.
46 For more information, see http://www.usdoj.gov/civil/torts/const/reca/index.htm.
47 P.L. 101-510 (November 5, 1990). On-site participants are individuals who were present above or within the official
boundaries of the Nevada, Pacific, Trinity, or South Atlantic Test Sites during a period of testing and who participated
in the test.
48 P.L. 106-245 (July 10, 2000).
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and education programs about radiogenic diseases. Under this authority, HRSA funds seven
health care institutions in five western states (AZ, CO, NV, NM, and UT).49
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The benefits for each of the RECA claimant categories are as follows: (1) downwinders who have
contracted one of the 19 compensable cancers receive a payment of $50,000; (2) on-site
participants who have contracted one of the 19 compensable cancer types receive a payment of
$75,000; (3) uranium miners who meet the exposure criteria or mined for at least a year during
the relevant time period, and who have contracted lung cancer or certain nonmalignant respiratory
diseases receive a payment of $100,000; and (4) uranium mill workers and ore transporters who
worked during the relevant time period and have contracted lung cancer, certain nonmalignant
respiratory diseases, kidney cancer, or certain other chronic kidney diseases receive a payment of
$100,000. These benefits are offset (reduced) by any amounts received under private litigation,
and acceptance of the benefits constitutes settlement of all claims against the federal government
and its contractors. RECA payments are not subject to federal income tax and are not considered
income for the purposes of computing eligibility for state or federal benefit programs.
Since the inception of the program, 28,018 claims have been filed and almost $1.3 billion has
been awarded for 19,257 claims (as of April 7, 2008).
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The 19 compensable cancers, which are established in statute, are leukemia (other than chronic
lymphocytic leukemia); multiple myeloma; lymphoma (other than Hodgkin’s disease); and
primary cancer of the thyroid, breast, esophagus, stomach, pharynx, small intestine, pancreas, bile
ducts, gall bladder, salivary gland, urinary bladder, brain, colon, ovary, liver (except if cirrhosis or
hepatitis B is indicated), or lung.50
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In the past, Congress made annual appropriations to the RECA trust fund, from which
compensation was paid to eligible claimants. Any money remaining in the trust fund at the end of
the fiscal year was carried forward to the next fiscal year. Passage of the RECA Amendments of
2000 led to a dramatic increase in the number of claims filed and processed. Congress initially
appropriated $11 million to the trust fund for FY2001, but followed that up with a supplemental
appropriation for such sums as may be necessary to pay claims through the end of that fiscal year.
The trust fund paid out a total of $108 million in approved claims in FY2001. The National
Defense Authorization Act for FY2002 mandated the appropriation of such sums as may be
necessary for the RECA trust fund for a 10-year period—FY2002 through FY2011—up to a
specified maximum amount each fiscal year.51 The Consolidated Appropriations Act for FY2005
49 See HRSA, Radiation Exposure Screening and Education Program (RESEP), at http://ruralhealth.hrsa.gov/funding/
RESEP/.
50 42 U.S.C. § 2210 note 4(b)(2).
51 P.L. 107-107 (December 28, 2001). The act capped the appropriations for the RECA Trust Fund as follows: FY2002,
$172 million; FY2003, $143 million; FY2004, $107 million; FY2005, $65 million; FY2006, $47 million; FY2007, $29
million; FY2008, $29 million; FY2009, $23 million; FY2010, $23 million; FY2011, $17 million.
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amended that language and made funding for the RECA trust fund mandatory and indefinite
beginning in FY2006.52 Also, beginning in FY2005, the trust fund only pays downwinder and on-
site participant claims. Pursuant to the Ronald W. Reagan National Defense Authorization Act for
FY2005, the claims of uranium miners, millers, and ore transporters are paid by the Energy
Employees Occupational Illness Compensation Program (described below).53 Furthermore, under
this program uranium miners, millers, and ore transporters who receive RECA compensation may
also be eligible to receive an additional $50,000 and future medical benefits related to the
condition for which they received compensation under RECA.
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The Energy Employees Occupational Illness Compensation Program Act (EEOICPA, P.L. 106-
398, Title XXXVI, October 30, 2000) provides monetary compensation and medical benefits to
eligible workers in the nuclear weapons industry, many of them government contractors.54 These
workers may have been exposed to ionizing radiation, beryllium, and other hazards, and because
of the secretive nature of their work, they may not have been properly advised of, or protected
from, harmful exposures.
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Claims are managed by the Department of Labor (DOL), Office of Workers’ Compensation
Programs.55 The National Institute of Occupational Safety and Health (NIOSH, within the CDC)
conducts exposure studies for certain eligible individuals to characterize their occupational
radiation exposure using available worker and/or facility monitoring data (discussed further under
“Disease Presumptions,” below).56 The Department of Energy (DOE) provides worker and
facility records to support both claims management and exposure assessment, and is required to
assure the cooperation of government contractors in furnishing such information.57
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Program benefits are often referred to by the applicable subtitles of the law. Part B benefits (i.e.,
those provided in Subtitle B) are available to DOE employees, contractors, subcontractors, and
atomic weapons employers who develop certain radiation-induced cancers after having worked in
a covered facility, provided that the cancer is determined to be work-related. (The nature of this
determination is discussed later in the section on “Disease Presumptions”) Part B benefits are also
52 P.L. 108-447 (December 8, 2004).
53 P.L. 108-375 (October 28, 2004).
54 42 U.S.C. § 7384 et seq.
55 See U.S. Department of Labor, Division of Energy Employees Occupational Illness Compensation, at
http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/main.htm.
56 See NIOSH Office of Compensation Analysis and Support, at http:/www.cdc.gov/niosh/ocas/.
57 See U.S. Department of Energy, Energy Employees Occupational Illness Compensation Program, at
http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/.
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available to DOE employees, contractors, subcontractors, and atomic weapons employers if they
develop illnesses related to beryllium or silica exposure after having worked in certain covered
facilities, or if they are uranium workers who have been determined to be eligible for benefits
under RECA (discussed in an earlier section of this report).
Part E benefits (those provided in Subtitle E) are available to (1) Part B recipients (including
uranium workers who have been determined to be eligible for benefits under RECA) and (2)
nuclear weapons workers who develop any other illness caused by toxic substances at these
facilities.58 Beginning in 2005, Part E replaced a Part D program which, rather than paying
federal benefits, assisted workers in making claims under state workers’ compensation laws.
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There are no special restrictions. Providers must register with DOL. Eligible claimants receive a
document describing their eligible medical conditions. DOL sets a fee schedule based on
geographic location. Balance billing is not permitted. Some services require preauthorization.
ȱ
The Part B benefit provides a lump sum of $150,000 and pays necessary medical expenses. The
Part E benefit pays necessary medical expenses and provides a one-time payment based on the
sum of amounts for the degree of impairment and for wage loss. The Part E benefit is capped at
$250,000, excluding medical expenses. Part E also provides a benefit for eligible survivors. The
Part E benefit (unlike the B benefit) is subject to offset for any state workers’ compensation
payments received.59
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Diagnostic criteria for beryllium disease (including beryllium sensitivity) and silicosis are
explicitly defined in the authorizing statute. Eligibility depends on meeting these criteria and
documenting exposure at a covered facility.
Compensable cancers are listed in statute. They are, by reference, the cancers listed in the RECA
statute, along with bone and renal cancers.60 For workers with cancer who are otherwise eligible
(i.e., they worked for a sufficiently long period of time in certain facilities), two different
processes are used to establish whether the cancer is work-related. Those who have one of the
listed cancers and are members of the Special Exposure Cohort (SEC) qualify for the
presumption that their cancer is work-related and are eligible for benefits. Workers in the SEC
who have a type of cancer that is not listed, and workers who are not in the SEC and have any
type of cancer, instead bear the burden to demonstrate that their cancer is work-related through
the process of dose reconstruction.
58 In 2004, Congress transferred management of Part E from DOE to DOL, in Title XXXI of the Ronald W. Reagan
National Defense Authorization Act for FY2005, P.L. 108-375.
59 Benefits formulas and other information are available at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/
progbenefits.htm.
60 42 U.S.C. § 7384l. Though both RECA and EEOICPA list leukemia among the compensable cancers, the two laws
apply slightly different criteria for age and disease onset.
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EEOICPA designated four specific groups of workers as members of the SEC.61 In addition,
Section 7384q of the act authorizes the President, with the advice of an advisory board appointed
by NIOSH, to include additional classes of workers in the SEC if he determines that “(1) it is not
feasible to estimate with sufficient accuracy the radiation dose that the class received; and (2)
there is a reasonable likelihood that such radiation dose may have endangered the health of
members of the class.” The SEC currently includes 29 different groups of workers, including
more than 1,000 workers and their survivors.62 Membership in the SEC greatly simplifies the
process of qualifying for benefits, and the designation of SEC classes has been controversial. For
example, there have been allegations of bias or other irregularities in appointing members of the
advisory board, issuing contracts, and other matters.63 In each Congress since the act’s passage in
2000, some Members of Congress have introduced bills to grant SEC status to particular groups
of workers.
Dose reconstruction is carried out by NIOSH, which uses radiation exposure data (e.g., film
badge readings, urine sample data, and medical x-rays) and other information (e.g., health
outcomes in co-workers) to estimate a worker’s radiation exposure. NIOSH provides this
information to DOL and advises DOL regarding a statistical determination of whether a worker’s
cancer is “at least as likely as not” to be work-related. Though the statistical model is weighted to
favor the worker, the process must be initiated by workers (or their survivors) and may be
especially challenging and time-consuming when, as often happens, the data needed for analysis
are not available. Between October 2001 and December 2007, NIOSH received more than 26,000
claims for dose reconstruction, and it has completed more than 73% of these claims and returned
them to DOL for a compensation decision.64
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The authorizing statute made a permanent appropriation of such amounts as may be necessary to
pay benefits. Administrative costs for Part B require annual appropriation. (These include costs
for DOL, DOE, and NIOSH activities.) As of April 6, 2008, more than 160,000 claims had been
filed, and 39,470 were approved, in Parts B and E. Monetary compensation and medical benefits
totaled almost $3.7 billion.65
61 Certain workers at the gaseous diffusion plants at Paducah, KY; Portsmouth, OH; and Oak Ridge, TN, and at the
Alaska underground test site.
62 NIOSH Blog.
63 See, for example, GAO, “Energy Employees Compensation: GAO’s Prior Work Has Identified Needed
Improvements in Various Aspects of the Program,” GAO-07-233T, December 5, 2006.
64 Larry Elliott, Director, OCAS, “NIOSH Dose Reconstruction Program,” in NIOSH Science Blog, January 22, 2008,
(hereafter, NIOSH Blog), at http://www.cdc.gov/niosh/blog/nsb012208_dose.html.
65 Some claimants may file under both parts. The above figures reflect claims by a total of 66,049 individual workers.
EEOICP program statistics are available at http://www.dol.gov/esa/regs/compliance/owcp/eeoicp/weeklystats.htm.
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From 1946 to 1958, the United States conducted 67 atmospheric atomic and thermonuclear
weapons tests on or near the Marshall Islands atolls of Bikini and Enewetak. During that time, the
Marshall Islands, located east of Guam in the Southwest Pacific, was a district of the United
Nations Trust Territory of the Pacific Islands administered by the United States. The Compact of
Free Association, enacted in 1986, terminated the Trust Territory status of the Marshall Islands
and Micronesia and provided a “full measure of self-government” for the peoples of the two
island countries.67 Section 177 of the Compact and the Agreement for the Implementation of
Section 177 (the “177 Agreement”) extended $150 million in the form of a trust fund (Nuclear
Claims Fund) as compensation for the four “most affected” Marshall Islands atolls. According to
U.S. government estimates, between 1958 and 2004, the United States spent $531 million on
nuclear test-related compensation and assistance in the Marshall Islands. In September 2000, the
Marshall Islands government submitted to the U.S. Congress a Changed Circumstances Petition,
pursuant to the Compact, requesting additional compensation, including funding for personal
injury awards.68 In November 2004, the U.S. Department of State released a report concluding
that there was no legal basis for considering additional compensation payments. The 109th
Congress held hearings on the petition in 2005 but made no determination. In April 2006, the
peoples of Bikini and Enewetak atolls filed lawsuits against the U.S. government in the U.S.
Court of Federal Claims seeking compensation and/or damages related to the U.S. nuclear testing
program. The court dismissed both lawsuits on August 2, 2007. On July 10, 2007, the Republic of
the Marshall Islands Supplemental Nuclear Compensation Act of 2007 (S. 1756) was introduced
the Senate. The Committee on Energy and Natural Resources held a hearing on the bill in
September 2007.
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The 177 Agreement established a Nuclear Claims Tribunal (NCT) to adjudicate claims related to
the nuclear testing program and allocated $45.75 million from the Nuclear Claims Fund for
payment of personal injury and property damages awards. The Tribunal is made up of three
judges for terms of three years, and is organized into three operational divisions—Administration,
the Office of the Defender of the Fund, and the Office of the Public Advocate—all of which are
under the supervision of the Chairman.
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The Tribunal’s system of personal injury compensation, implemented in 1991, is modeled after
the Radiation Exposure Compensation Act (RECA). As with RECA, the Tribunal does not require
the claimant to prove a specific causal link between his or her exposure to ionizing radiation and
66 This section was prepared by Thomas Lum, Foreign Affairs, Defense and Trade Division.
67 The Compact was negotiated and agreed to by the governments of the United States and the Marshall Islands and
approved by plebiscite in the Marshall Islands and by the U.S. Congress in 1985 (P.L. 99-239). Portions of the
Compact were renewed in 2003 (P.L. 108-188).
68 For further information, see CRS Report RL32811, Republic of the Marshall Islands Changed Circumstances
Petition to Congress, by Thomas Lum et al.
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the claimant’s injury. The claimant must simply provide proof of residency in the Marshall
Islands during the years of nuclear testing (July 1, 1946 to August 19, 1958) and have one of the
listed medical conditions (i.e., compensable diseases), which the Tribunal presumes to be caused
by radiation exposure.
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No restrictions.
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Unlike RECA, which pays the same amount for all downwinder claims (i.e., $50,000), the
Tribunal awards differing amounts for the various diseases on its list of compensable diseases.
Awards range from $12,500 for certain benign tumors and non-cancerous conditions to $125,000
for certain types of malignant cancer. For biological children of a mother who was physically
present at the time of the testing, the NCT provides 50% of amounts offered to first-generation
claimants.
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Initially, the Tribunal adopted a list of 25 compensable diseases, including the cancers listed
under RECA, and other conditions for which there was credible evidence showing a significant
statistical relationship between exposure to ionizing radiation and the subsequent development of
the disease. In determining which diseases to include on the list, the Tribunal referred to the
findings of the Radiation Effects Research Foundation in Japan and the U.S. National Academy
of Sciences, and sought recommendations from Dr. Robert Miller, an expert in the field of
radiation health effects. The Tribunal reviewed the list of compensable diseases each year and
considered any new scientific evidence on diseases linked to exposure to ionizing radiation. As a
result of that review process, the list has been amended on several occasions since 1991 and now
includes a total of 36 medical conditions.69
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The $150 million Nuclear Claims Fund was intended to generate a perpetual source of income for
personal injury and property damages claims, as well as health care, medical surveillance and
radiological monitoring, trust funds for the four atolls, and quarterly distributions to the peoples
of the four atolls for hardships suffered. However, the Fund was nearly depleted by the end of
2006. The Nuclear Claims Tribunal’s personal injury awards alone have far exceeded the $45.75
million allocated by the Compact to the Tribunal for both personal injury and property damages
compensation. As of December 2006, the NCT had awarded $91.4 million for compensable
injuries to approximately 2,000 individuals, of which only about 80% had been paid out because
of a lack of funds.
69 See Nuclear Claims Tribunal at http://www.nuclearclaimstribunal.com/.
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The Ricky Ray Hemophilia Relief Fund Act of 1998 established a five-year trust fund to provide
compassionate lump-sum payments to hemophiliacs who became infected with the human
immunodeficiency virus (HIV) during the early 1980s as a result of using HIV-infected
antihemophilic (blood clotting) factor.70 The act authorized appropriations to the trust fund
totaling $750 million.
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The Ricky Ray Hemophilia Relief Fund program was administered by HRSA. Pursuant to the act,
the trust fund terminated on November 12, 2003. The administrative close-out of the program
occurred on October 31, 2005.71
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The Ricky Ray program covered individuals with blood-clotting disorders, such as hemophilia,
who used blood clotting factor between July 1, 1982, and December 31, 1987, and contracted
HIV, as well as certain persons who contracted HIV from these individuals. In the event
individuals eligible for payment were deceased, the program also provided payments to certain
survivors of these individuals. In addition to hemophiliacs who contracted HIV from their
treatments, their spouses and children are also eligible if infected.
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Not applicable. The program did not provide a health care benefit.
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The act provided for a payment of $100,000 to each eligible claimant. Some petitions resulted in
a payment of less than $100,000. In all, the Ricky Ray program paid out more than $559 million
to almost 7,200 eligible individuals and survivors. Ricky Ray payments were not subject to
federal income tax and did not affect eligibility for Medicaid or other federal benefits, nor were
they subject to recoupment by insurers.72
70 P.L. 105-369 (November 12, 1998), 42 U.S.C. §§ 300c—22 note.
71 Information on the Ricky Ray Relief Fund program is available at http://bhpr.hrsa.gov/rickyray.
72 The act also specified that payments arising from the successful class action lawsuit brought by the hemophilia
community against the manufacturers of blood clotting factor were not to affect eligibility for Medicaid or
Supplemental Security Income.
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The act provided that any eligible individual (i.e., an individual who had a blood clotting disorder,
who used clotting factors within the specified time period, and who had an HIV infection) would
receive compensation. Eligible individuals were not required to offer evidence that HIV infection
was caused by their use of clotting factors.
ȱ
In three separate appropriations, the trust fund received a total of $655 million, which was more
than sufficient to pay all the eligible claims.73 All remaining funds were returned to the U.S.
Treasury.
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The Department of Veterans Affairs (VA) pays monthly cash benefits to veterans who are
physically or mentally disabled by injury or disease as a result of military service. These
disabilities need not have occurred in the line of duty, or even be related to active duty. For a
condition to be regarded as service-connected—and, therefore, eligible for compensation—
veterans need show only that the condition occurred (or was aggravated) as a result of military
service, or arose during that period. The severity of a veteran’s disability is evaluated by the VA,
which assigns a disability rating, in increments of 10%, from 0% to 100%. In order to receive
disability compensation, a veterans must be rated at least 10% disabled. The rate of compensation
depends on the degree of disability and follows a payment schedule that is adjusted annually and
applies to all veterans.75
To receive compensation for a service-connected disability, veterans are required to document
that their condition is related to their service. The claim is often clearly documented by pertinent
military records. However, with some medical conditions, evidence of a service-connection is
inconclusive. Since 1988, Congress has on three occasions granted a presumption of a service-
connection for a specific group of veterans, making these individuals potentially eligible for
disability compensation in the absence of conclusive evidence linking their medical conditions to
military service.
73 The Ricky Ray fund initially received $75 million in the FY2000 Labor-HHS-Education appropriations bill (P.L.
106-113). The FY2001 omnibus consolidated appropriations bill (P.L. 106-554) included $105 million for the fund.
P.L. 106-554 incorporated the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act (BIPA) of
2000, which provided an additional appropriation of $475 million for Ricky Ray. All funds were to remain available
until expended.
74 Assistance with this section was provided by Sidath Viranga Panangala, Domestic Social Policy Division.
75 See CRS Report RL33991, Disability Evaluation of Military Servicemembers, by Christine Scott, Sidath Viranga
Panangala, and Charles A. Henning, and CRS Report RL33113, Veterans Affairs: Basic Eligibility for Disability
Benefit Programs, by Douglas Reid Weimer.
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The following sections describe the VA’s presumptive compensation programs for (1) atomic
veterans, (2) Vietnam veterans, and (3) veterans of the Persian Gulf War.76 All VA cash payments
are financed through federal appropriations.
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In 1984, Congress enacted legislation (P.L. 98-542) to establish a program to provide disability
compensation to the so-called atomic veterans (i.e., radiation-exposed veterans who participated
in the U.S. atmospheric atomic tests or in the U.S. occupation of Hiroshima and Nagasaki, Japan).
The law instructed the VA to write regulations setting out the criteria for adjudicating claims.
Under the program, the VA awards compensation if it determines that a veteran’s disability is “at
least as likely as not” the result of exposure to radiation while in service.77 Although P.L. 98-542
only mentioned the atomic test participants and the occupation forces in Japan, the regulations
cover all veterans who were exposed to radiation from any source while on active duty.
Each claim must be accompanied by an estimate of the radiation dose received by the claimant.
Dose estimates are provided by the Defense Threat Reduction Agency (DTRA) using a variety of
sources of data, including radiation badges worn by service personnel. Because many individuals
were not issued badges and historical records are incomplete, inaccurate, or missing, DTRA often
has to perform a dose reconstruction. A veteran may also submit an alternative dose estimate from
a credible source. VA officials determine whether it is at least as likely as not that the veteran’s
disease is the result of service-connected radiation exposure using a set of radioepidemiologic
tables developed by the National Cancer Institute. These tables allow an investigator to look up
the probability that the development of a particular cancer at age T was caused by a radiation
dose, D, at age t. In order to satisfy the VA’s criterion (i.e., “at least as likely as not”), the
probability of causation (POC) must be at least 50%. Current VA regulations state that all cancers
and four non-malignant conditions (e.g., thyroid nodules) are potentially radiogenic. The agency
will also consider evidence that diseases other than those listed in the regulations may be caused
by radiation exposure.
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In response to atomic veterans’ complaints about the difficulty of getting compensation under P.L.
98-542, Congress in 1988 enacted the Radiation-Exposed Veterans’ Compensation Act (P.L. 100-
321), which established a presumption of a service connection for 13 specified types of cancer.
Unlike the earlier law, P.L. 100-321 does not require an estimation of radiation dose. If a veteran
participated in one of three specified radiation-risk activities78 and has one of the listed cancers,
76 As defined in 38 U.S.C. § 101(33), the term “Persian Gulf War” means “the period beginning on August 2, 1990, and
ending on the date thereafter prescribed by Presidential proclamation or by law.” As of now, this includes veterans
from Operation Iraqi Freedom (OIF).
77 38 C.F.R. § 3.311.
78 P.L. 100-321 defined a radiation-risk activity as: on-site participation at an atmospheric atomic test; occupation of
Hiroshima or Nagasaki; and internment as a POW in Japan during World War II, resulting in an opportunity for
exposure. The VA subsequently expanded the definition of radiation-risk activities to include service at Amchitka
Island, AK, prior to January 1, 1974, if a veteran was exposed while performing duties related to certain underground
nuclear tests; and service at gaseous diffusion plants located in Paducah, KY, Portsmouth, OH, and an area known as
K25 at Oak Ridge, TN.
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that veteran is presumed to have a service-connected condition and is eligible for compensation.79
P.L. 102-578 amended P.L. 100-321 by adding two more cancers to the presumptive list, and P.L.
106-117 added one additional cancer. In 2002, the VA announced the addition of five more
cancers, bringing the total number of compensable cancers to 21.80
Atomic veterans suffering from one of the 21 presumptive cancers have their claims adjudicated
under P.L. 100-321. Veterans seeking radiation compensation for other types of cancer or non-
cancer diseases must submit to a dose estimate or reconstruction and are considered under the
non-presumptive program (i.e., P.L. 98-542).
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In 1991, the Agent Orange Act (P.L. 102-4) established for Vietnam veterans a presumption of a
service connection for diseases associated with exposure to Agent Orange and other herbicides
that the U.S. Air Force sprayed over South Vietnam between 1962 and 1971. Under the act,
veterans seeking disability compensation for diseases they claimed to be associated with
herbicide exposure no longer were required to provide proof of such exposure. P.L. 102-4
authorized the VA to contract with the Institute of Medicine (IOM) to conduct, every two years, a
scientific review of the evidence linking certain medical conditions to herbicide exposure. The VA
was instructed to use the IOM’s findings, and other evidence, to issue regulations establishing a
presumption of a service connection for any disease for which there is scientific evidence of a
positive association with herbicide exposure. Currently, the VA presumptively recognizes the
following diseases as connected with military service in Vietnam: chronic lymphocytic leukemia;
most soft-tissue sarcomas; non-Hodgkin’s lymphoma; Hodgkin’s disease; chloracne; multiple
myeloma; type II diabetes; acute and subacute peripheral neuropathy; prostate cancer; respiratory
cancers, and porphyria cutanea tarda. Additionally, Vietnam veterans’ children with the birth
defect spina bifida are eligible to receive a monthly monetary allowance in addition to certain
health care services. The Veterans Benefits and Health Care Improvement Act of 2000 (P.L. 106-
419) authorized similar benefits and services for children with certain birth defects who were
born to female Vietnam veterans.81
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In 1994, Congress created a presumption of a service connection for Gulf War veterans suffering
from a difficult-to-diagnose or undiagnosed illness. The Persian Gulf War Veterans’ Benefits Act
(P.L. 103-446, Title I) provided authority to the VA to compensate Gulf War veterans with a
chronic disability resulting from such an illness that became manifest during active duty in the
Gulf War or within a specified presumptive period after Gulf War service.82 The Veterans’
Education and Benefits Expansion Act of 2001 (P.L. 107-103) expanded the definition of a
79 38 C.F.R. § 3.309.
80 The 21 cancers presumed to be service-connected for veterans who participated in radiation-risk activities are:
leukemia (all forms except chronic lymphocytic leukemia); cancer of the thyroid, breast, pharynx, esophagus, stomach,
small intestine, pancreas, bile ducts, gall bladder, salivary gland, urinary tract (renal pelvis, urethra, urinary bladder,
and urethra), brain, bone, lung, colon, and ovary; bronchiolo-alveolar carcinoma; multiple myeloma; lymphomas (other
than Hodgkin’s disease); and primary liver cancer (except if cirrhosis or hepatitis B is indicated).
81 See CRS Report RL34370, Veterans Affairs: Health Care and Benefits for Veterans Exposed to Agent Orange, by
Sidath Viranga Panangala and Douglas Reid Weimer.
82 38 U.S.C. § 1117.
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qualifying chronic disability to include not just an undiagnosed illness, but also (1) a medically
unexplained chronic multi-symptomatic illness such as chronic fatigue syndrome, fibromyalgia,
and irritable bowel syndrome that is defined by a cluster of signs and symptoms, and (2) any
diagnosed illness that the Secretary determines warrants a service connection.83 As of July 2007,
more than 3,300 Gulf War veterans had received service connection for their undiagnosed
illnesses under this authority.
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The Federal Tort Claims Act (FTCA) allows suits against the United States for torts committed by
federal employees. With exceptions, it makes the United States liable “under circumstances where
the United States, if a private person, would be liable to the claimant in accordance with the law
of the place where the act or omission occurred.”85
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An injured person must first present an administrative claim to the responsible federal agency.86 If
the agency denies the claim, the injured person may file suit in a federal district court,87 which
will hear the case without a jury.88
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Any person may file a claim with the appropriate federal agency within two years after the claim
accrues.89 Federal employees injured on the job, however, whether military or civilian, may not
recover under the FTCA.90 Alternative compensation for work-related injury to these employees
is available under the Federal Employees’ Compensation Act and the veterans’ compensation
systems.
83 38 U.S.C. § 1117(a)(2). To date, the VA has not established a presumption of service connection for any diagnosed
illness.
84 This section was written by Henry Cohen, American Law Division.
85 28 U.S.C. § 1346(b).
86 28 U.S.C. § 2675(a).
87 28 U.S.C. § 1346(b).
88 28 U.S.C. § 2402.
89 28 U.S.C. § 2401.
90 5 U.S.C. § 8116(c); Feres v. United States, 340 U.S. 135 (1950).
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No restrictions.
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Successful plaintiffs may recover economic and noneconomic damages, to the extent allowed by
applicable state law, except that punitive damages may not be awarded, and attorney’s fees may
not be awarded unless the United States acts in bad faith.91 Awards must be in lump-sum
payments, but the parties may agree to structured settlements (i.e., periodic payments).
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Not applicable.
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Awards and settlements of $2,500 or less are paid out of appropriations available to the agency
whose employee committed the tort. Awards and settlements in excess of $2,500 are paid out of
general revenues.92
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In response to catastrophes, the President can provide funding to both state and local
governments, and to individuals, to assist them in response and recovery. Assistance is provided
under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the
Stafford Act), upon a presidential declaration of an emergency (providing a lower level of
assistance) or a major disaster (providing a higher level of assistance).94 Pursuant to a Stafford
Act emergency or major disaster declaration, federal assistance may be provided to assist
individuals either in a congregate setting through state and local governments, or directly to
individuals, in covering the costs of health care for related injuries or illnesses. Additionally, if
requested specifically by the Governor, a counseling program may also be made available under a
Presidential declaration.
91 28 U.S.C. §§ 2674, 2412(b), 2412(d)(1)(A).
92 28 U.S.C. § 2672. Specifically, awards and settlements over $2,500 are paid from the judgment fund, 31 U.S.C. §
1304, which is a permanent (i.e., not annually appropriated) fund for the payment of judgments not otherwise provided
for.
93 Assistance with this section was provided by Francis X. McCarthy, Government and Finance Division. See also,
“Federal Assistance for Disaster-Related Healthcare Costs,” in CRS Report RL33579, The Public Health and Medical
Response to Disasters: Federal Authority and Funding, by Sarah A. Lister.
94 42 U.S.C. §§ 5121 et seq. See CRS Report RL33053, Federal Stafford Act Disaster Assistance: Presidential
Declarations, Eligible Activities, and Funding, by Keith Bea.
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Stafford Act assistance programs are administered by the Federal Emergency Management
Agency (FEMA) in the Department of Homeland Security (DHS).
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Individual eligibility is strictly based on residence in an area subject to a presidential emergency
or major disaster declaration, pursuant to the Stafford Act.
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No restrictions.
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Pursuant to section 408 of the Stafford Act, the FEMA Individuals and Households Program
(IHP) provides cash assistance for uninsured, disaster-related medical, dental, and funeral
expenses.95 The amount available is the same for an individual or a household, and is capped in
statute, with an annual adjustment based on the Consumer Price Index. The current ceiling (for
FY2008) is $28,800.96 Recipients might have to use the funds to meet other needs concurrently,
such as rent and other costs of living. FEMA evaluates individual eligibility, and whether claimed
medical, dental and funeral costs are disaster-related, on a case-by-case basis.
Section 416 of the Stafford Act authorizes the President, pursuant to a major disaster declaration,
to provide financial assistance to state and qualified tribal mental health agencies for professional
counseling services, or training of disaster workers, to relieve disaster victims’ mental health
problems caused or aggravated by the disaster or its aftermath. The Substance Abuse and Mental
Health Services Administration (SAMHSA) in HHS, and FEMA, jointly administer the Crisis
Counseling Assistance and Training Program (CCP).97
Pursuant to Stafford Act sections 403 (for a major disaster declaration) and 502 (for an emergency
declaration), states may receive federal assistance in providing for victims’ health care needs, but
such assistance is not provided directly to individuals.
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Not applicable.
95 44 C.F.R. § 206.119.
96 72 Federal Register 57341, October 9, 2007.
97 See CRS Report RL33738, Gulf Coast Hurricanes: Addressing Survivors’ Mental Health and Substance Abuse
Treatment Needs, by Ramya Sundararaman, Sarah A. Lister, and Erin D. Williams.
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Activities undertaken under authority of the Stafford Act are funded through appropriations to the
Disaster Relief Fund (DRF), administered by FEMA. The DRF is a no-year account in which
appropriated funds remain available until expended. Supplemental appropriations legislation is
generally required each fiscal year to replenish the DRF to meet the urgent needs of particularly
catastrophic disasters.
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Following the September 11, 2001, terrorist attack on the World Trade Center (WTC) in New
York City (NYC), thousands of responders worked on the site in a rescue, recovery, and clean-up
operation that lasted more than a year. In addition to the grim task of working amidst and
recovering victims’ remains, responders were potentially exposed to numerous toxins, including
asbestos and other particulates, heavy metals, volatile organic compounds, and dioxin. Many of
these workers are now experiencing various respiratory, psychological, gastrointestinal, and other
problems felt to be related to exposures at the site.98
Following the attack, Congress provided funding to the CDC to establish several medical
monitoring programs, one of which, the World Trade Center Medical Monitoring and Treatment
Program (MMTP), was subsequently funded to also provide medical treatment services to ill
responders. The MMTP provides ongoing medical monitoring and treatment to eligible workers
(paid and volunteer) who were involved in the rescue, recovery, and restoration activities
following the attacks.99 The program is not explicitly authorized in law but has received several
appropriations to carry out its work.
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The MMTP is federally administered by the CDC’s National Institute for Occupational Safety and
Health (NIOSH). Funds for the delivery of medical monitoring and treatment services, and
associated administrative activities such as data management, are provided to two grantees: (1) a
network of occupational medicine clinics in the New York City area, often referred to as the
“NY/NJ WTC Consortium” or the “Mount Sinai Consortium,” and (2) the Bureau of Health
Services at the Fire Department of New York (FDNY).100 (See also “Eligibility of Health Care
Providers,” below.)
98 See HHS, “World Trade Center Health Resources,” at http://www.hhs.gov/wtc/.
99 See CDC/NIOSH, “World Trade Center Response,” at http://www.cdc.gov/niosh/topics/wtc/. Unless otherwise
noted, information in this section is derived from CDC/NIOSH, “World Trade Center Response, Frequently Asked
Questions,” March 20, 2007, at http://www.cdc.gov/niosh/topics/wtc/. A related program, the World Trade Center
Health Registry, was established to track, through periodic surveys, the physical and mental health status of workers,
residents, and others exposed to the WTC site, for up to 20 years. The registry program does not provide compensation
or health care services to registrants. See http://www.nyc.gov/html/doh/html/wtc/index.html.
100 For more information, see GAO, “September 11: HHS Needs to Ensure the Availability of Health Screening and
Monitoring for All Responders,” GAO-07-892, July 23, 2007, hereinafter referred to as GAO WTC report.
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Traditionally, NIOSH has been involved in conducting or funding research on occupational
illnesses and injuries, conducting on-site inspections (called Health Hazard Evaluations) to
determine the toxicity of materials used in workplaces, developing information and guidelines
regarding workplace safety, and educating workers, employers, and others.101 The Institute is not
typically involved in administering or funding the delivery of health care services.
ȱ¢ȱ
Neither the CDC nor program grantees have published comprehensive information about
individual eligibility for MMTP services, though limited information is available. In general,
WTC responders, whether paid (including contractors) or volunteer, are eligible, regardless of
their employer. However, responders who were federal employees at the time of their service are
not eligible for the MMTP, as presumably they would receive services through other programs.102
The FDNY program is open to current and retired New York City firefighters, who are expected
to receive care through the FDNY Bureau of Health Services and are, therefore, not eligible to
receive care through the other consortium clinics. Individuals who may have been exposed to
hazards from the WTC site by virtue of proximity, but who did not actually perform response
work, are not eligible for services through the MMTP.
NIOSH reports that as of March 2007, 36,775 individuals were registered in the MMTP: 22,467
through the consortium clinics and 14,308 through the FDNY.103 Publicly available program
information does not describe the status of these individuals with respect to collateral health
insurance or worker’s compensation coverage.104
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The MMTP funds medical monitoring and treatment services provided by the consortium clinics
(mostly but not exclusively in the NYC area) and the Bureau of Health Services at the Fire
Department of New York (FDNY). NIOSH reports that there are program registrants in each of
the 50 states.105 GAO has reported that NIOSH has not ensured the availability of screening and
monitoring services for nonfederal responders residing outside the NYC area, although it has
taken steps toward expanding the availability of these services.106
101 See CDC, “NIOSH Origins and Mission,” at http://www.cdc.gov/niosh/about.html.
102 GAO has reported on problems associated with the WTC Federal Responder Screening Program, implemented by
HHS, in a series of reports, most recently in GAO WTC report.
103 NIOSH briefing on the MMTP for Representative Carolyn Maloney, June 15, 2007, hereinafter called NIOSH
briefing, at http://maloney.house.gov/documents/911recovery/
20070615_WTC_Medical_Monitoring_and_Treatment_Program.pdf.
104 It is reported that some program participants lack either alternate funding source, and that for those who have both,
administrative delays may nonetheless compromise health care delivery. See, for example, testimony of James Melius,
Chair, Advisory Board of the MMTP, before the Senate Committee on Health, Education, Labor, and Pensions, hearing
regarding “The Long-Term Health Impacts from September 11: A Review of Treatment, Diagnosis, and Monitoring
Efforts,” March 21, 2007, 110th Cong., 1st Sess., Washington, DC.
105 NIOSH briefing, p. 11.
106 GAO, “September 11: Improvements Still Needed in Availability of Health Screening and Monitoring Services for
Responders outside the New York City Area,” GAO-08-429T, January 22, 2008.
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For the diagnosis and treatment of specified conditions, the program covers all costs, without
cost-sharing, including inpatient and outpatient medical procedures and prescribed medications.
The program does not cover the costs of care for unrelated health conditions, or the costs of
services provided by an individual’s personal physician if that physician is outside of the MMTP
network. Also, for responders wishing to change the in-network clinic at which they receive care,
the program generally permits only one such transfer. Services for family members of eligible
responders are not covered, with the exception that certain family counseling services (such as
marriage counseling) may be provided as part of an eligible responder’s treatment plan. The
program does not recoup costs from other potential payors, such as health insurers or workers’
compensation programs.
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Covered conditions are those that are presumed to be related to WTC exposure or injury. They
include “aerodigestive conditions” (e.g., asthma, chronic cough, and gastroesophageal reflux
disorder); psychological conditions (e.g., post-traumatic stress disorder, depression, anxiety
disorders, and substance abuse); and musculoskeletal disorders (e.g., low back pain, and “other
musculoskeletal disorders).”107 Per NIOSH:
The conditions covered by this program have been established through the following
guidelines: 1) conditions that have been reported in large numbers of patients seen through
the [MMTP], 2) rare conditions that have been diagnosed in some WTC responders and for
which there is adequate scientific basis for a relation to the WTC-related exposures; 3)
conditions which are anticipated because of the nature of the WTC exposures but usually do
not occur until several years after the exposure.108
In June 2007, NIOSH reported that aerodigestive conditions were the most prevalent, affecting
19% of MMTP registrants.109
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The MMTP has been funded through intermittent appropriations and has evolved since 2002,
initially providing baseline medical screenings, then regular medical monitoring, and, currently,
periodic monitoring for all participants and medical treatment for those with WTC-related
illnesses. With the exception of small amounts for federal program administration, appropriated
funds are provided to grantees (i.e., the consortium clinics and the FDNY) to deliver screening,
monitoring, and treatment services. Grantees have used additional funding sources to support
their programs, including charitable donations and state and municipal funds.
For FY2002, Congress directed $12 million in supplemental appropriations to the CDC to
develop a baseline medical screening program for WTC responders.110 For FY2003, Congress
107 For a list of conditions, see CDC/NIOSH, “World Trade Center Response, Frequently Asked Questions,” March 20,
2007, at http://www.cdc.gov/niosh/topics/wtc/.
108 Ibid. The document does not describe the administrative process used to develop the list of diseases.
109 NIOSH briefing, p. 33. The MMTP registers eligible individuals for monitoring whether or not they have WTC-
related illnesses. At this time, NIOSH reports that most program registrants do not have any WTC-related illnesses.
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provided $90 million to continue baseline screenings and to provide long-term medical
monitoring of program participants.111 For FY2006, Congress provided $75 million for ongoing
registry, screening, and monitoring activities, and stipulated for the first time that funds could also
be used for treatment.112 In May 2007, Congress provided an additional $50 million in
supplemental funding for FY2007, to remain available until expended.113 For FY2008, Congress
provided a total appropriation of approximately $108.1 million, providing in the law that funds
shall be used “... to provide screening and treatment for first response emergency services
personnel, residents, students, and others....”114 The administration requests $25 million for
FY2009.115
Both NIOSH and the City of New York estimate that the program’s future needs will exceed
recent federal funding levels, especially with the addition of medical treatment to the services
provided.116 Based on projections from current program expenditures, NIOSH estimates the
probable short-term total annual cost of the program at $428 million, whereas the New York task
force estimates that it could exceed $392 million. Neither estimate includes the cost of managing
health problems, such as cancers, that have not emerged among program participants at this time,
but that many experts are concerned may emerge in the future.
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In 1990, Congress established, in CDC, the National Breast and Cervical Cancer Early Detection
Program (NBCCEDP), which provides low-income, uninsured, and underserved women access to
screening and diagnostic services to detect breast and cervical cancer at an early stage.117 Women
in the program who were found to have breast or cervical cancer often faced access barriers to
treatment, for the same reasons that made them eligible for the screening program.118 On October
2000, Congress passed the Breast and Cervical Cancer Prevention and Treatment Act of 2000
(P.L. 106-354). (In 2001, in the Native American Breast and Cervical Cancer Treatment Technical
Amendment Act, P.L. 107-121, Congress amended the act to also apply to American
Indians/Alaska Natives who are eligible for health services provided by the Indian Health Service
(...continued)
110 P.L. 107-117, 115 Stat. 2313. The amount was to be obligated from funds already appropriated in P.L. 107-38, the
original $40 billion appropriation to support the nation’s response to the September 11, 2001, terrorist attacks.
111 P.L. 108-7, 117 Stat. 517. At least $25 million of this amount was to be used to provide screening and monitoring
services to current and retired firefighters.
112 P.L. 109-148, § 5011(b), 119 Stat. 2815. In July 2007, GAO reported that the CDC had provided $51 million of that
amount to MMTP grantees for inpatient and outpatient medical treatment services. See GAO WTC report.
113 P.L. 110-28, 121 Stat. 166, referring to activities carried out under section 5011(b) of P.L. 109-148.
114 P.L. 110-161. Of the $109 million provided in the law, $56.5 million was designated as emergency spending, and
the balance, $52.5 million, was subject to a 1.747% across-the-board rescission.
115 HHS, Budget in Brief, FY2009, February 2008, p. 28, at http://www.hhs.gov/budget/09budget/
2009BudgetInBrief.pdf.
116 See NIOSH cost estimate in NIOSH briefing, pages 30-34; and World Trade Center Health Panel, “Addressing the
Health Impacts of 9-11: Report and Recommendations to Mayor Michael R. Bloomberg,” February 13, 2007, at
http://www.nyc.gov/html/om/pdf/911_health_impacts_report.pdf.
117 CDC, National Breast and Cervical Cancer Early Detection Program, at http://www.cdc.gov/cancer/nbccedp/.
118 In 2005, between 1 and 2% of women who were screened for each condition were found to have cancer.
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or by a tribal organization.) The act gives states the option to provide medical assistance, through
Medicaid, to eligible women who were screened through the NBCCEDP and found to have breast
or cervical cancer, including pre-cancerous conditions. All 50 states and the District of Columbia
now offer such coverage.
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The Medicaid program is administered by the states under broad federal guidelines and the
oversight of the Centers for Medicare and Medicaid Services (CMS) in HHS.119
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In order for a woman to be eligible for Medicaid under this program, she must: (1) have been
screened for and found to have breast or cervical cancer, including precancerous conditions,
through the NBCCEDP; (2) be under age 65; and (3) be uninsured and otherwise not eligible for
Medicaid. A woman remains eligible as long as she requires treatment for breast or cervical
cancer, and continues to meet the other two criteria.
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CMS develops Conditions of Participation (CoPs) and Conditions for Coverage (CfCs) that
health care organizations must meet in order to receive reimbursement through the Medicaid
program. These conditions are the minimum health and safety standards that providers and
suppliers must meet in order to be Medicaid certified. (These conditions apply equally for
Medicare.) There are no additional provider restrictions applied to the Breast and Cervical Cancer
Treatment program.
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Eligible individuals are entitled to the full range of Medicaid services as specified in the state
plan.120 Benefits are not limited to services for breast or cervical cancer. As is the case with
Medicaid coverage in general, states may use administrative mechanisms, such as prior review
and approval requirements, to determine that care and services furnished to women in this
program are medically necessary.
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Not applicable.
119 CMS, Breast and Cervical Cancer: Prevention and Treatment, at http://www.cms.hhs.gov/
MedicaidSpecialCovCond/02_BreastandCervicalCancer_PreventionandTreatment.asp.
120 For more information, see CRS Report RL33202, Medicaid: A Primer, by Elicia J. Herz.
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States and the federal government share the cost of Medicaid. States are reimbursed by the federal
government for a portion of a state’s Medicaid program costs. Because Medicaid is an open-
ended entitlement, there is no upper limit or cap on the amount of federal funds a state may
receive.121 The federal share of Medicaid is funded through general revenues.
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Sarah A. Lister, Coordinator
Henry Cohen
Specialist in Public Health and Epidemiology
Legislative Attorney
slister@crs.loc.gov, 7-7320
hcohen@crs.loc.gov, 7-7892
C. Stephen Redhead
Pamela W. Smith
Specialist in Health Policy
Analyst in Biomedical Policy
credhead@crs.loc.gov, 7-2261
psmith@crs.loc.gov, 7-7048
Scott Szymendera
Thomas Lum
Analyst in Disability Policy
Specialist in Asian Affairs
sszymendera@crs.loc.gov, 7-0014
tlum@crs.loc.gov, 7-7616
Celinda Franco
Specialist in Crime Policy
cfranco@crs.loc.gov, 7-7360
121 Ibid.
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