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OP ED: FOIA Exemptions Prevent Some Energy Workers from Proving Claim

By Deb Jerison

One of the ways Energy Employees Claimant Assistance Project (EECAP) provides information to the public on Energy Employees Occupation Illness Compensation Program Act (EEOICPA)  is by filing Freedom of Information Act (FOIA) requests.  On July 1, 2016 President Obama signed the FOIA Improvement Act of 2016 into law.

The new law requires that federal agencies do not withhold information unless it “reasonably foresees” disclosure will harm one of the interests protected by FOIA exemptions.  Currently there are 9 exemptions federal agencies are allowed to use to withhold information.

These nine exemptions matter because when Dept. of Labor  does not want to release information it uses one of these exemptions to justify withholding it. 

So what are these exemptions and what material has DOL restricted EECAP from releasing to the public using them?  DOL has used 4 exemptions with EECAP.

Exemption 5 allows federal agencies to withhold privileged communications within or between agencies--things like work product or deliberative process information.  DOL used this 4 times to keep EECAP from receiving:

Makes you wonder what is in the Teleconference notes and Omnitec study, doesn’t it?

Exemption 4 allows federal agencies to withhold trade secrets or confidential commercial or financial information DOL used this twice to withhold:

Doctors training materials and handbook are trade secrets?  Really?

Exemption 2 allows agencies to withhold information that is generated solely for internal personnel rules and agency practices.  DOL has used this twice to withhold:

Exemption 7 withholds information compiled for law enforcement purposes.  DOL used this once, properly, when EECAP requested information on on-going investigations on:

On July 20th DEEOIC got especially creative in their use of exemptions when they denied a request made at a March meeting between DOL and the advocates for a copy of the Treatment Suites for Chronic Beryllium Disease. Let me point out that the request was made verbally at a meeting and NOT in a FOIA. DEEOIC said, “In accordance with Exemptions 2 and 7 under the Freedom of Information Act (FOIA) we, have denied the release of treatment suites for CBD….Additionally, Exemption 7 under FOIA protects records or information compiled for law enforcement purposes when the production of such records or information ‘would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.’”  This denial to share information based on law enforcement purposes seems especially ill-chosen.

So what the heck are Treatment Suites and why do the matter to sick workers?  DEEOIC Procedure Manual Chapter 3-0200 describes them, “The treatment suites and ICD-9 codes utilized by the DEEOIC are contained within a database, administered by medical professionals within the OWCP. This database compares an ICD-9 coded diagnosis, and associated services being billed by a provider, with a group (or suite) of acceptable, allowable treatments or services for that accepted condition.  The use of treatment suites allows bills to be paid automatically when the treatment being billed is reasonable and customary for the accepted condition. Often, issues arise when a claimant is trying to obtain payment for a consequential illness and the medical bills are being denied because the consequential illness is not being recognized within the treatment suite(s) for the accepted condition.”  The disclosure of DEEOIC treatment suite information would enable physicians and others to manipulate their ..EEOICPA medical billing in order to circumvent the law by billing for codes strictly based upon what is covered under the treatment suites rather than based upon the true and accurate codes for a given employee covered under EEOICPA.” (emphasis EECAP)

So DEEOIC contends that claimants’ doctors (and others) would risk their reputations and medical licenses to commit fraud if they had access to the same information that Claims Examiners use. That is interesting and very disturbing.

At the same March meeting a senior DEEOIC official described home health care agencies as “diabolical”. While EECAP knows some the home health care business are less professional than others, some are very professional and reputable. And home health care services, while expensive, are very necessary and an important part of sick workers’ medical benefits granted by Congress to right a wrong done to these workers. This remark implied the vilification of an entire industry.  According to EECAP research and DOL verification there has only been one home health care agency convicted of fraud during EEOICPA’s 16 years.  The director is in jail, as he should be.  Fraud is a crime and no one should commit fraud.  But DEEOIC’s eagerness to imply that all workers’ physicians and all home health care companies will risk losing their licenses and going to jail to gain fraudulent benefits is ludicrous! 

So on June 15th EECAP filed (you guessed it!) a FOIA to request data on home health care providers so the public and sick workers could be warned of home health care companies who have committed fraud, or have been investigated for fraud, along with a way to identify these companies and which states they were working in.  DOL denied this request using Exemption 7 but did provide EECAP with the name of the ONE home health care company that had been convicted of crime-Honor Bound Healthcare in Grand Junction Colorado.  DOL also denied EECAP’s request for a fee waiver stating EECAP had not proved it could disseminate the information well enough. DOL also invited EECAP to reformulate the request which EECAP did on July 24.  In the amended FOIA EECAP removed the request for information on on-going fraud investigations, requesting only information on historic investigations and strengthened the fee waiver evidence, as well as adding doctors to the FOIA to see which doctors have been convicted or investigated for EEOICPA fraud.  It will be interesting to see how DEEOIC responds.

For years DEEOIC refused to meet with the advocates because they felt there was an adversarial relationship.  Three years ago they finally realized that DEEOIC and the advocates, while there may be disagreements, all want to see the sick workers receive the benefits they are owed.  DEEOIC needs to come to the same realization and start working with the home health care agencies and sick workers’ doctors, rather than vilifying them.

I’m left with two questions.

  1. If doctors and home health care companies are suspected of committing fraud and DOL has investigated them why doesn’t DOL want the sick workers and the public warned?
  2. Why would DEEOIC protect a tool their Claims Examiners use from public release so doctors can review it to make sure all of the sick workers’ illnesses are being covered?

I suspect protection of the purse strings have more to do with it than actual fraud.  Now, excuse me while I go file a FOIA for Chronic Beryllium Disease Treatment Suites…