Se habla EspañOl
Elective Option May Provide Fast Track to Resolve CLJA CLaim
What is the Elective Option?
The Elective Option (EO) is a fast track way to resolve a CLJA claim. Offered by the Department of the Navy (DON) starting in September 2023, it allows certain claimants who qualify based on certain criteria to receive an offer to settle their claim in an expedited manner. Those that do not qualify for or receive an offer to settle their claim with an EO offer may continue to take part of the administrative and/or litigation process within the federal system.
In order to implement the EO, the DON created a settlement matrix taking into account:
- Illnesses/conditions that Agency of Toxic Substance and Disease Registry (ATSDR) identified as having evidence at “equipoise and above” level or higher for a causal link to one or more contaminants detected in the Camp Lejeune water.
- Tier 1 Qualifying Injury or Tier 2 Qualifying Injury; &
- Duration of Exposure
The settlement matrix for EO offers is as follows:
Tier 1 Injury Tier 2 Injury
30 days - 364 days $150,000 $100,000
1 year - 5 years $300,000 $250,000
More than 5 years $450,000 $400,000
Plus an additional $100,000 when the Qualifying Injury resulted in death. As a result, the maximum amount of an EO offer is $550,000.
The Qualifying Injuries for the EO include:
Kidney Cancer Tier 1
Liver Cancer Tier 1
Non-Hodgkin Lymphoma Tier 1
Leukemias Tier 1
Bladder Cancer Tier 1
Multiple Myeloma Tier 2
Parkinson's Disease Tier 2
Kidney Disease / End Stage Renal Disease Tier 2
Systemic Sclerosis/Systemic Scleroderma Tier 2
In addition to the qualifying criteria above, there are 3 additional basic requirements to meet in order to be EO eligible:
- Presentment - Claim must be properly presented to DON
- Onset - A claimant must first be diagnosed on or before August 10, 2022
- Latency - The earliest date of diagnosis or treatment must be not less than two (2) years after the claimant’s first exposure and not greater than thirty-five (35) years after the claimant’s last exposure.
In order to show a Qualifying Injury, a claimant must be able to present the following:
- medical documentation showing diagnosis/treatment before 8/10/22
- signed/certified by a medical doctor
- documents must be original or certified copy of original
If it is impossible for a claimant to provide an original or certified copy of an original, the claimant must provide a written statement under oath with the uncertified copy setting forth the reason why it is impossible to provide an original or a certified copy of an original.
To show Duration of Exposure, there must be housing or employment documentation showing that the claimant (or the claimant’s mother while the claimant was in utero) resided or worked at Camp Lejeune for at least 30 days between August 1, 1953 and December 31, 1987.
Appropriate housing or employment documentation demonstrating Duration of Exposure may include:
- military service records,
- tax returns,
- drivers’ licenses,
- pay stubs,
- employment contracts, or
- similar documentation.
Claimants who alleged they were exposed to Camp Lejeune water while living on base with a service member may rely on that service member’s housing or employment documentation, if the claimant can show a relationship with the service member, such as a marriage certificate or birth certificate.
For purposes of the EO, secondary evidence, such as a sworn affidavit, statement, or declaration, is not sufficient to show a claimant resided or worked at Camp Lejeune because such evidence is less reliable.
Claimants who have previously received healthcare or disability benefits related to Camp Lejeune from the VA may rely on those benefits to establish a Qualifying Injury, a Duration of Exposure of between 30 and 364 days, or both.
To show that a Qualifying Injury resulted in death, there must be medical documentation showing that the illness or condition caused or contributed to causing the decedent’s death. Appropriate medical documentation may include a “long form” death certificate that includes a medical report detailing the cause of death, or a signed letter from the decedent’s treating physician.
The DON's process for reviewing administrative claims for purposes of the EO include:
- Determine “Perfection”
- Screen Perfected Claims for a Qualifying Injury
- DON-Initiated Investigation
- Claimant Substantiation
- DON Finalization and Request for Payment from Judgment Fund
Here's more information and tips about each step of that process:
1. Determine "Perfection"
- Claim must be properly presented to DON
- Use form from CLJA website
- DON will reach out if additional information is needed to perfect claim
- No need to refile claims already submitted and currently pending with DON
2. Screen Perfected Claims for a Qualifying Injury
- DON shall screen perfected claims to ensure they allege a Qualifying Injury
- Claims alleging multiple injuries may proceed so long as 1 of those injuries is a Qualifying Injury
3. DON-Initiated Investigation - The DON will look for the following:
- Was person diagnosed with / treated for a Qualifying Injury?
- What is Date of Diagnosis?
- What is Date of First Exposure?
- What is Date of Last Exposure?
- Were there any days absent?
- Did Qualifying Injury result in death?
4. Claimant Substantiation
- If the DON needs additional documentation, it may request from the claimant. Examples include birth certificates and medical records.
- DON may deny a claim if Marine fails to provide sufficient supporting documentation.
- DON may repeat steps as deemed appropriate.
5. DON Finalization and Request for Payment from Judgment Fund
- DON will propose eligible EO offers to USDOJ
- If USDOJ approves, then DON will notify Marines (via attorneys when represented) of the EO offer
- Claimants shall have 60 days to accept/decline EO offer
- If no action taken within 60 days, DON may choose to deny claim
- If claimant declines EO offer and files lawsuit, they cannot request a subsequent EO offer
- After accepting EO offer, Marine shall sign all releases within 14 days
- Marine shall sign affirmation, under penalty of perjury, of information supporting the EO determination
- Release does not affect rights to award / payment / benefit under the VA
- DON will process documents for payment with USDOT for payment of settlement within 60 days.
Frequently Asked Questions
What are the Benefits of Accepting EO Offer vs. Filing Lawsuit?
According to the federal government, accepting an EO offer provides the following benefits:
- Guaranteed payment
- Expedited payment
- Reduced evidentiary standards
- Waiver of VA & Medicare A/B offset provisions under the CLJA
What if I Decline an EO Settlement?
According to the federal government, declining an EO offer does not mean an end to the case.
- You may keep your claim with DON
- Additional settlement frameworks may be created
- You may file lawsuit (once claim formally denied by DON or 6 months period passes)
Does the EO Apply to Claims Already in Litigation?
According to the federal government, the EO does not directly apply to claim already in litigation because once the claimant files suit and enters into litigation, the DON lacks the authority to provide an EO offer of settlement. However, the USDOJ will review / extend offers consistent with EO, Claimants may not dismiss their claim to return to DON admin process.
Why do only These Nine Diseases Qualify?
According to the federal government, compensating specific qualifying diseases is consistent with other government programs. The EO relieves the claimants of the burden of submitting expert testimony regarding causation and relieves the United States of the cost of evaluating that expert testimony. Some claimants with Qualifying Injuries may be unable to prove causation in tort litigation. On the other hand, some claimants with injuries that are not Qualifying Injuries may be able to prove causation in tort litigation. In both instances, however, claimants would bear the burden of proving general and specific causation through expert testimony. On balance, the ATSDR Assessment of the Evidence provides a principled basis for settling cases in the administrative claim phase.
Why are Qualifying Injuries Treated Similarly if Some are More Severe?
According to the federal government, the EO does not attempt to compare the severities of different illnesses. This is the case for at least three reasons:
- assessing the severity of an illness is a fact-intensive and time-intensive inquiry that might require examining a claimant’s medical records, deposing the claimant or the claimant’s family-members, and eliciting expert opinion testimony regarding the effects of an illness.
- assigning different values to different types of illnesses based on their severity may be inappropriate at the administrative claim phase because of the inherent complexity of such an assessment and the equities it would implicate.
- the Qualifying Injuries are nearly all cancers or other terminal or chronic illnesses.
What if I Have More Than One Qualifying Injury?
A claimant may recover under the EO for only a single Qualifying Injury. The EO considers settlement on a “per-claimant” basis rather than a “per-injury” basis. If a claimant has more than one Qualifying Injury, the claimant will be compensated for one such injury, at the level that will provide the greatest compensation for the claimant. Thus, if a claimant has both a Tier 1 and Tier 2 Qualifying Injury, the claimant will receive compensation for the Tier 1 Qualifying Injury.
Will Accepting an EO Offer Affect my VA Benefits?
No, accepting an EO offer for a CLJA claim will not affect the claimant’s VA benefits. VA will not assert a lien or offset over EO payments. Awards or settlements made outside of the EO may be offset by the value of VA benefits.
Will Accepting an EO Offer Affect my Medicare or Medicaid Benefits?
Accepting an EO offer for a CLJA claim will not affect the claimant’s benefits under the Medicare fee-for-service program. The Centers for Medicare & Medicaid Services (CMS) will not assert an offset over EO payments under the Medicare fee-for-service program.
However, Medicare Advantage Organizations and state Medicaid agencies may also have paid benefits to a claimant and will independently determine whether to seek recovery of payments they have made associated with CLJA claims.
Awards or settlements made outside of the EO may be offset by the value of Medicare fee-for-service benefits.
What Percentage of my EO Payment May be Collected as Attorney Fees?
Attorneys’ fees for administrative settlements made under the EO cannot exceed 20% of the award and attorneys’ fees for settlements made under the EO for cases in litigation cannot exceed 25% of the award.
How do I File my Administrative Claim with the Navy?
NOTE: The filing deadline set forth in the Camp Lejeune Justice Act (CLJA) has passed. For that reason, the Department of the Navy (DON) is no longer accepting new CLJA claims. The answer below represents the guidance previously provided by the DON as of September 2023.
An administrative claim should be filed with the Department of the Navy. The administrative claim should not be filed with the Department of Justice, the Department of Veterans Affairs, or the United States Marine Corps. Further information on how to file an administrative claim with the Department of the Navy can be found at: www.navy.mil/clja. Claimants who have already filed a claim with Navy do not need to refile their claim in order to take advantage of the EO. The United States cannot advise claimants on whether they should retain an attorney to assist in filing a claim.