Monday, August 3, 2015

OUTRAGE-OWCP's "Special" Provisions for the DEA's Confidential Informants

While legitimately injured workers have to fight to receive benefits, the Drug Enforcement Agency, (DEA) is supplying benefits under the Federal Employees’ Compensation Act, (FECA) to its confidential informants.

In a report by the Office of Inspector General, (OIG) released in July 2015, they learned that the DEA paid at least 17 confidential sources or their dependents FECA benefits totaling $1.034 million dollars. However, this amount is not accurate which can be determined just by reading OIG's report.

The recipients of these FECA benefits did not have to prove their “claims” with OWCP or even prove they were eligible for the benefits or fight for benefits the same way you, the injured worker have had to do. They did not have to provide OWCP with any proof they were entitled to FECA benefits the way you have had to do. 

This is because OWCP has a “special” method for processing and administering these cases.

The following are portions taken directly from the OIG’s report on its findings. While you read this, consider WHO works for the DEA as a confidential informant. While you read this, consider that these informants will never have to prove their claim, will never have to attend an OWCP-directed examination and will never face a proposed termination, will never have to provide OWCP with any report of earnings, will never have to provide OWCP ANY the proof you have had to provide:

Between July 1, 2013, and June 30, 2014, it appears that the DEA paid approximately $1,034,000 for FECA benefits to 17 confidential sources or their dependents. In some cases, the DEA has been paying FECA benefits since 1974, but we could not determine the total historical cost because the DEA and DOL do not track payments to confidential sources receiving FECA benefits.

In one particular case we reviewed, the confidential source was killed in July 1989 and his surviving family, which included a widow and dependents, began receiving FECA payments of $4,287 every 4 weeks. At the time of her death in 2012, the widow’s 4-week payment amount had increased to $6,311. Therefore, this family alone received over $1.3 million in FECA benefits since 1989.

As authority for the proposition that confidential sources may be categorized as non-federal law enforcement officers, the Personnel Manual cites Section 886 of 21 U.S.C. However, 21 U.S.C. § 886 merely discusses, among other things, the Attorney General’s authority to pay confidential sources from DEA funds; it has no relationship to FECA nor does it characterize confidential sources as non-federal law enforcement officers for any purpose.

Although FECA does, in some instances, extend availability for benefits to eligible law enforcement officers not employed by the United States, 5 U.S.C. § 8191, the implementing regulation defines eligible non-federal law enforcement officers only as law enforcement officers of state or local governments or governments of U.S. possessions and territories, and certain officers eligible for pensions under the D.C. Policemen and Firemen's Retirement and Disability Act. Confidential sources are none of these. 

We also found that a number of key DEA offices lacked knowledge about its confidential source FECA activities and expenditures. For example, DEA officials with whom we spoke from the Office of Human Resources and the Office of Operations Management, in particular officials from the Confidential Source Unit were all unaware that confidential sources were receiving FECA benefits. After numerous attempts and coordinating with entities external to the DEA, we identified two people in DEA’s Office of Safety and Worker’s Compensation who were aware that confidential sources were receiving FECA benefits.

These DEA officials stated that the DEA does not keep any files for these FECA cases and relies solely on DOL to administer and oversee the cases. These individuals elaborated that there is almost no review of these FECA cases by any DEA headquarters officials.

We were told that the field office staff forwards these cases to DEA’s Office of Safety and Worker’s Compensation, which reviews the forms only for clerical errors and then submits them to DOL. According to these DEA officials, after the DEA forwards the FECA case to DOL, neither the DEA field office nor headquarters is notified of DOL’s acceptance or denial of the case or any other interaction between DOL and the claimant.
A DOL Office of Workers Compensation Programs (OWCP) official stated that DOL does not follow normal procedures for processing the DEA’s confidential source FECA cases. This lead DOL official, who is currently responsible for handling these DEA cases, stated that DOL identifies these FECA cases as “secure” cases and does not perform an in-depth review of these FECA applications.

Further, DOL does not process any related claims through its electronic system and instead uses a labor intensive manual process that requires a very small staff to complete the review process, maintain hard copy files, and oversee the payment transactions for all “secure” files.

According to this DOL official, DOL established this structure a long time ago to accommodate the DEA’s concerns regarding the sensitivity of confidential source FECA cases. We requested documentation to substantiate this statement, but neither the DOL official nor the DEA were able to provide any information to the OIG.

We discussed confidential source eligibility with DEA and DOL officials and neither agency accepted responsibility for determining whether DEA confidential source FECA applicants met the criteria.

Officials from the DEA’s Office of Safety and Worker’s Compensation stated that DOL is responsible for determining who is eligible for FECA benefits, while the DOL official who currently manages the DEA’s confidential source FECA files stated that DOL has relied upon the DEA for the underlying determination of whether confidential sources are eligible to receive FECA benefits in accordance with the special procedure that it adopted to address DEA’s concerns about the sensitivity of confidential source cases.

DOL’s Division of Federal Employees’ Compensation clarified that DOL is the agency that determines FECA eligibility, but reiterated that, once the employing agency has identified the injured individual as a confidential source, DOL considers the definition of “employee” to have been satisfied for purposes of providing workers’ compensation benefits.

DOL relies on DEA and performs no independent analysis to test “employee” status. In addition, when we discussed with the Criminal Division’s Deputy Assistant Attorney General the provision of FECA benefits to DEA confidential sources, he stated that he was unaware that this was occurring. However, he indicated that if the DEA is providing FECA benefits to its confidential sources, then a prosecutor needs to know this information because it creates a financial relationship (potentially a dependent one) between the DEA and the confidential source. 

Based upon this DOJ official being unaware of the DEA’s FECA activities related to confidential sources as well as the fact that relevant DEA officials were also generally unaware of confidential sources receiving FECA benefits, it appears that the DEA has not evaluated, or asked the Department to evaluate, how a determination that confidential sources could qualify as civil employees and receive FECA benefits might either increase the disclosure obligations of federal prosecutors in criminal cases or impact other Department equities.

In multiple cases, we could not verify or validate that DEA confidential sources were receiving FECA benefits for claims involving injuries or deaths that happened while the confidential sources were performing services directly for the DEA because the file contained insufficient information regarding the triggering event to make that determination.

In fact, in one of the FECA cases that we reviewed, the FECA application included a statement from a DEA official indicating that the injury sustained by the confidential source was possibly due to the source’s carelessness and that at the time of the injury the confidential source was not being directed by DEA personnel.

The following are some other examples of these types of cases.

· The DEA submitted and DOL accepted a claim for a DEA confidential source who was shot and injured in 1984, but there is no indication of where and how the shooting occurred. In addition, a document in the file indicates that the confidential source “claimed” that a narcotics trafficker committed the act. We could not find any information in the file that would support that DEA officials were present when the source was injured, how they confirmed the source’s claim to have been shot by a narcotics trafficker, or the basis for believing that the shooting resulted from the source’s cooperation with DEA.

· The DEA submitted and DOL accepted a claim for a confidential source who was presumably killed overseas in 1991. However, according to the file, there were no witnesses to the confidential source’s death and the source’s body had not been recovered. The file contained no details describing how or why the DEA believed that the source was killed as a result of cooperation with the DEA.

· The DEA submitted and DOL accepted a claim for a confidential source who was shot and injured while traveling to work in 1997. This incident occurred 1 day after the DEA activated the individual as a confidential source. Further, DOL’s FECA file clearly indicates that DEA officials stated that the source’s injury did not happen while performing DEA-related activities. The file also indicates that the DEA had evidence that the shooting was related to 29 the source’s involvement with the DEA, but this evidence is not recounted in the DOL file nor is there an indication that the evidence was verified.

· The DOL accepted a claim that was submitted by the DEA more than 2 years after a confidential source was shot and killed at home in 1999. According to the information in the file, no DEA officials were present when the incident occurred. There was no other information in the file to indicate that the shooting occurred as a result of the confidential source’s involvement with the DEA.

· The DEA submitted and DOL accepted a claim for a confidential source who was shot and injured at home in 2002. However, the file indicates that there were no witnesses to the shooting and the file contained no evidence of a link between the shooting and the individual’s status as a DEA source. Inconsistent Benefits Determination In addition to the absence of procedures for determining eligibility of DEA confidential sources for FECA benefits, we found that there were no formal standards or policies for determining the source’s “existing pay rate” at the time of the event.

According to DOL policy, when a recipient of FECA benefits does not receive a standard salary, DOL calculates FECA benefits using the average annual earnings for an individual who performed similar work in the previous year. Given that the services that confidential sources provide to the DEA are often irregular, sporadic, and unique in nature, the DEA’s confidential sources are not paid standard amounts and there is a wide range of payments provided to confidential sources while they are active with the DEA.

Therefore, in some of the FECA files we reviewed, DOL requested that the DEA provide additional information to establish the source’s “existing pay rate” at the time of the injury.
However, in general, we found that there was a lack of consistency in the determination of pay rates and the resulting compensation benefits determination. The following examples illustrate these inconsistencies.

· One case file indicated that a confidential source had been injured in 1994. According to the case file, the DEA provided information that the source had received approximately $10,868 in that year. DOL used that amount to establish the existing annual pay rate for the claimant. Because this amount was below DOL’s established minimum compensation amount, DOL used its minimum allowable amount in establishing the recurring FECA compensation benefits for the confidential source.

· One case file indicated that a cooperating witness was killed 2 days prior to the sentencing of defendants in a DEA-related drug case in 1990. This individual had not yet received any payments from the DEA at the time of the death, but the DEA later paid the surviving family member an award payment of $10,000. 

To determine the existing pay rate for the deceased, DOL asked the local DEA field office to provide payment totals for its three highest paid confidential sources in the year prior to confidential source’s death. The DEA provided the amounts ($174,000, $44,000, and $22,000) and recommended that the median amount be used to determine benefits. DOL agreed with the recommendation and determined the recurring FECA compensation benefit amount based upon the second highest paid DEA confidential source in the local area.

· As previously identified, the DEA filed a FECA claim for a confidential source who, 1 day after being activated as a confidential source, was shot and injured while traveling to work in 1997. Without a history of payments to this new confidential source, the DEA asked DOL to establish the source’s existing pay rate by using the federal government’s General Schedule (GS) pay rate for a GS-7 federal employee. DOL agreed and FECA benefits were determined based on the GS-7 pay rate.

· One case file indicated that a DEA confidential source was killed in 1991. DOL case files contain information from the DEA indicating that this source had received over $500,000 from the DEA in the prior 2 years. According to DOL, FECA benefits are capped at the maximum federal employee salary on the General Schedule, which equates to the annual pay rate for a GS-15, Step 10 employee. The file indicates that after reviewing the available information, the DOL determined that the surviving family members should receive the maximum benefit allowable, and the amount awarded at that time (1991) was $6,661 every 4 weeks.

In other files there was insufficient information related to the basis for the benefit amount. While in some cases it was clear that the responsible DEA field office was involved in the pay rate determination, there was little evidence to indicate that DEA headquarters personnel were providing any input or oversight in this area.

The purpose of FECA for injured workers is to compensate qualified individuals who are injured on the job during the time they cannot perform their duties. FECA regulations require agencies to provide assistance to injured individuals to return them to work as quickly as possible. When an employee is well enough that he or she can perform the duties that were performed prior to the injury, the individual should no longer receive FECA benefits.

· For one confidential source who was injured in 1997, our review of DEA’s confidential source file indicated that the DEA not only paid for this individual’s housing expenses, but also provided payments for information and an award payment of over $1 million between the date of his injury and 2012. At the same time, the individual was also receiving FECA disability benefits, which amounted to approximately $2,000 every 4 weeks. The source was deactivated in 2012 because he could no longer provide useful information. He last received a source payment from DEA in October 2012. Based on DEA and DOL documentation, we estimate that between 1997 and 2012, the DEA paid this individual a total of $2,186,813, comprised of $353,075 in FECA benefits and $1,833,738 in confidential source service and award payments.

· One confidential source was receiving full FECA disability benefits resulting from an incident that occurred during a March 1986 DEA operation. However, the DEA’s records indicate that the confidential source was deactivated in December 1985 and not reactivated until September 1996. DEA documentation also revealed that the DEA field office continued to pay this deactivated confidential source for information and services within months of submitting the FECA claim. One of the payments, in the amount of $1,000, was paid just 4 days after the purported injury for which the confidential source was deemed fully disabled and qualified for FECA benefits.

The DEA eventually reactivated this confidential source in 1996 and as of November 2014, this individual was still an active confidential source receiving DEA payments for cooperation as well as full FECA disability benefits. From our review of the DEA’s confidential source files and DOL’s FECA files it did not appear that the DEA had informed DOL of the individuals’ continued use and earning as a source, or that DEA was concerned about the individuals’ receiving dual benefits.

FECA policy requires individuals receiving compensation for partial or total disability to advise OWCP immediately of any return to work, either part-time or full-time. Individuals receiving FECA benefits are also required to submit an annual report of earnings from any employment. If an individual knowingly omits or understates his or her compensation, that individual forfeits their right to benefits.

As a result of DEA’s lack of substantive involvement and record keeping, as well as the atypical manual process DOL told us that it used for these cases at the request of DEA, we could not specifically determine how much money each recipient had been paid in FECA benefits or if the payments to the confidential sources or their families were ongoing.

In addition, neither the DEA nor DOL has accepted responsibility for judging the eligibility of FECA cases originating from confidential sources. We believe that confidential sources have been awarded FECA benefits without adequate review to verify that these individuals are legally entitled to benefits as described in the FECA statute and implementing regulations.

We believe that the absence of a thorough eligibility review significantly increases the risk that taxpayer dollars will be used inappropriately. It also appears that taxpayer dollars are at risk through the DEA’s existing inconsistent process for determining an established pay rate and compensation benefits for confidential sources seeking disability payments.
In some cases, FECA payment amounts were calculated based on arbitrarily selected amounts, wholly unrelated to amounts paid for any services provided by the confidential source.

The DEA’s poor oversight of its FECA activities relating to confidential sources has also resulted in the DEA inappropriately continuing to use and pay confidential sources who are receiving full disability payments through FECA and should be reporting all income to DOL.
The lack of DEA policies in this area means that Special Agents in the field are left unaware of the legal and financial implications of FECA cases. In fact, one DOL case file that we reviewed contained a statement from the DEA that: “there was a lack of prescribed procedures the DEA agents are to follow in such cases, and the Special Agent had limited understanding that ‘these employees’ are covered under the same ‘death insurance’.”

Read the full report: https://oig.justice.gov/reports/2015/a1528.pdf

I strongly urge any of you who have had to fight to get your OWCP benefits or fight to keep your OWCP benefits write you Congressperson and express your outrage at the ease in which the DEA’s confidential informants receive what could be life-time benefits they may not be entitled to.

Express your outrage and demand that Congress take an active role in the DEA's practice of providing full FECA benefits to people who do not have to abide by the same rules and regulations that you have to abide by.

If OWCP and the DEA will not supply the OIG with the actual facts and figures of these "special" claims, urge your Congressperson to demand the information be turned over to Congress.

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