SOURCE: aclc.org
DATE: 11/18/2022
The Inflation Reduction Act secured a permanent extension of funding for the Black Lung Disability Trust Fund – a resource that tens of thousands of miners who worked for bankrupt, dissolved, or disappeared companies can utilize to get health insurance coverage and a small living stipend. Tens of thousands more rely on black lung benefits legally required to be paid by their former employers. These small benefits are a lifeline to families across coal country – but historically, the claims process has been designed or administered to put miners at a disadvantage. Miners are fighting coal companies often single-handedly, while these companies have access to exponentially more financial and legal resources than the average American. If they are shut out of the system and ailing with a devastating respiratory disease, many miners would have to choose between paying for groceries and paying for their medicine. At the same time, if a miner is able to fight through this process to access benefits, the amount they receive typically is not adjusted for inflation. As prices rise, this puts them at a distinct disadvantage. But there are steps that Congress can take to help even the playing field and ensure miners can have access to the benefits they’ve earned.
The Black Lung Benefits Improvement Act helps solve a number of the problems these miners face and will ensure those who sacrificed their health working in the mines for coal companies to power our country get what they’ve earned.
This bill takes important steps forward to support miners, including:
- Assisting miners in getting the medical evidence they are required to have to prove they have black lung – Right now, miners have to pay for medical examinations and procedures to show they have black lung disease. This bill makes those costs immediately reimbursable.
- Ensures miners have representation through the claims process – Sick miners navigating complex corporate and federal bureaucracies shouldn’t have to do it alone. This bill ensures they have advocates and support when dealing with corporate lawyers and federal red tape.
- Provides clarity on how to determine if a miner has complicated black lung disease– Currently, the law is interpreted differently across the federal circuit courts. That makes it such that the determination of whether a miner has the most serious form of the disease is evaluated differently depending on the state in which the miner last worked. This Act would standardize that process.
- Calculates benefits based on the actual cost of living – This legislation determines benefit levels based on the cost of living adjustments that respond to high inflation instead of the current level, which is tied to federal employee pay scales.
- Ensures Coal CEOs pay miners what they’re owed – In recent years, many coal companies have filed for bankruptcy to shed their liabilities onto the Black Lung Disability Trust Fund, plunging the fund further into debt. This bill requires the Department of Labor to develop new, stronger requirements for coal companies to cover their own black lung liabilities.
However, in an effort to maximize their profits, coal companies and their political allies do not support this legislation. The concerns many express with the Black Lung Benefits Improvement Act show a fundamental lack of understanding of the very real and common struggles that coal miners living with black lung face.
This legislation is informed by Government Accountability Office (GAO) analysis of the benefits process and shaped by years of collaboration with miners and experts in the field. It addresses some of the serious barriers mining families face that prevent them from accessing life-giving care and a basic safety net.
1) How does the permanent extension of the Black Lung Excise Tax change the future stability of the fund?
In the summer of 2022, we passed a permanent extension of the black lung excise tax, the only source of revenue for the Trust Fund. In addition, coal production and prices have increased over the past several months thereby increasing revenue for the fund.
Now that the resources are available to support miners, we need to be sure it can be accessed by those who’ve earned them.
In addition to a historically insufficient excise tax rate, part of the Trust Fund’s solvency issues are attributed to coal companies that have dumped their black lung liabilities onto the Trust Fund, plunging it deeper into debt. A February of 2020 GAO report found $865 million in black lung liability was pushed from bankrupt “self-insured” coal companies to the Trust Fund just between 2014 and 2016, increasing costs to the Fund in spite of the Fund’s insolvency. The BLBIA requires the Department of Labor to develop new procedures to help ensure that coal operators remain accountable for paying the black lung benefits of their employees. This provision to address the Trust Fund’s solvency issues is complementary to the historic win in the Inflation Reduction Act that secured a permanent extension of the excise tax.
The CBO estimate for the BLBIA over ten years is only $74 million. The drivers of the costs include: 1) a small increase in monthly disability payments for existing beneficiaries 2) a higher number of miners (approximately 60 additional miners over a ten year period) who are able to access benefits due to increased access to medical examinations and legal services and 3) reimbursing attorneys for particular legal fees accrued by supporting miners through the bureaucratic process of securing benefits.
However, the reason that this bill costs anything at all is because miners and their families have to rely on the Trust Fund rather than the coal operators responsible for their condition to pay their benefits. This reliance on the Trust Fund is a result of past governance and regulations that allowed coal operators to shed their black lung liabilities. Miners and their families should not be punished for regulatory failures. Coal companies have to be accountable for the costs they have accrued and the impacts they’ve had on the lives of miners
2) How does supporting miners’ legal fees help ensure the miners receive their benefits?
It is important to clarify why it is necessary to create a new reimbursement system for legal fees and what qualifies as reimbursable legal expenses.
Under the current system, there are few incentives for lawyers to represent miners in black lung claims. The claims process is lengthy and costly. According to the Department of Labor, in 2022 only 45% of claimants had attorney representation. An additional 24% had lay representation, (a representative who is not licensed to practice law), but over 1600 miners and their survivors who applied for benefits had no representation. Miners and their families seeking benefits lack financial resources for the development of medical and other evidence and the payment of attorneys’ fees is contingent on the success of cases. It is challenging for law firms to take on cases that are costly to litigate and that take years and years to conclude. Recent reporting looked at a sample of 200 black lung claims and found that, on average, it took 6.5 years to issue a decision. For some families the process takes over a decade.
In the BLBIA, up to $1500 in legal fees are to be reimbursed after a decision on the miner’s claim is issued by the Office of Workers’ Compensation Programs (OWCP). During that evaluation process, medical and employment information is provided by the miner. The responsible coal mine operator is also given an opportunity to submit evidence and contest the claim. OWCP then issues a decision. Only if OWCP makes a determination that the miner is disabled by black lung disease will the legal fees be reimbursed. The entity that would be contesting the decision from that point forward is the coal company. The company would appeal the decision to an Administrative Law Judge (ALJ). If, after an onerous legal process, the ALJ rules in favor of the miner, up to $1500 will be spent on reimbursing legal fees. Subsequently, the coal company operator will then be responsible for reimbursing all legal fees and nothing will have been paid by the Trust Fund. If OWCP or ALJ does not make a determination that the miner is disabled, then the legal fees will simply not be reimbursed.
Any mining family that has gone through the process of filing a black lung claim knows how frustrating it can be. This legislation ensures they have advocates who can help them fight through the red tape of government bureaucracy, have legal representation to stand a chance against the coal companies’ lawyers, and get what they’ve earned.
3) How does this bill affect coal companies that self-insure their black lung liabilities?
Requiring that coal CEOs to have the money they need to pay for their liabilities is common sense. For too long, these executives have exploited legal loopholes to shed these costs and put the burden on the taxpayer. This requirement helps solve for that by requiring coal companies to carry adequate insurance to cover the costs created by putting miners’ health at serious risk. Moreover, the Department of Labor (DOL) has developed a proposal to provide oversight over this practice which can ensure no further loopholes are exploited by coal executives. Whether or not this legislation passes, these procedural changes are already underway at DOL.
4) Why is settling claims a bad deal for miners?
When a miner receives their benefits, they are promised health care for their disease for the rest of their life as well as a small monthly stipend to help cover the cost of living. Black lung is a progressive disease. It gets worse over time. To be eligible for benefits, a miner must prove that they are disabled by the disease. But the point at which a miner is determined to be fully disabled is not the point at which they are most sick. They often get much sicker and the cost of their medical needs increases. There is also a tremendous amount of variability regarding the cost of medical care for a miner with black lung, making it difficult to project and calculate over time. For example, some individuals, such as those who receive a lung transplant, exceed a million dollars for their medical care in just a single year.
The industry wants miners – who are often under real economic pressure because they are disabled and no longer able to work – to accept compromises regarding benefits and medical care.
Because of the progressive nature of the disease, settling medical coverage will virtually always underpay the long-term costs and those costs will ultimately be left to the miner and their family, particularly in their later years.
The industry knows that allowing settlements of federal black lung benefits claims are a good deal for them and a bad deal for miners and their families.
The extension of funding for the Black Lung Disability Trust Fund is a literal life line for thousands of miners across the country, but it only solves part of the problem they face. The Black Lung Benefits Improvement Act is a common-sense solution that ensures miners with black lung have the resources and the support they need to access the benefits they’ve earned. Of course, the National Mining Association is not supportive of this legislation and would prefer to have miners settle their claims and not get what they deserve. But this legislation would go a long way toward ensuring those miners who’ve sacrificed their health to help power those companies and our country have the basic safety net they’ve earned while they face debilitating black lung disease.
