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ACA repeal may affect black lung patients, families

By LORI KERSEY

Charleston Gazette-Mail

BECKLEY, W.Va.  — Despite the disease that left him disabled, Gary Hairston looks back fondly on his time as a coal miner.

“If I could be, I would be in there right now,” the 62-year-old Beckley resident said.

 

Gary Hairston, a black lung patient and former coal miner, wears one of his old mining helmets at his home in Beckley. Watch a related video of Hairston sharing his perspective at wvgazettemail.com.
(Photo by Sam Owens)

Hairston had been a coal miner more than 27 years when he left the mines because of coal workers’ pneumoconiosis — or black lung disease, an illness caused by inhaling coal dust that has killed 78,000 miners since 1968. He was 48 at the time.

“[It felt] like someone had gotten a knife and run that knife down through my lungs,” Hairston said. “That’s how bad they was hurting.”

Hairston reluctantly left the mines in 2004 after a doctor told him if he didn’t, he’d need oxygen for the rest of his life. These days, Hairston uses oxygen, for the most part, only at night and tries to avoid colds and other illnesses that worsen his lung problems.

Black lung keeps him from doing the things he once loved to do, like working and playing basketball. It slows him down when it comes to household chores like mowing the lawn.

“Everything I do I’ve got to do in moderation,” Hairston said. “I’ve got to know how far to take it  I know if I get to the point where I can’t breathe, I’m going to be struggling.”

Like many black lung patients, Hairston’s benefits didn’t come easy. Hairston said his company fought him in court for two years after he was awarded his.

As a black lung patient, Hairston represents a group of people who may be affected as Republicans continue with plans to dismantle the Affordable Care Act. The health care act added two amendments that make it easier for coal miners to get federal benefits for black lung. The amendments are referred to as the “Byrd amendments,” for late Sen. Robert C. Byrd, who wrote them.

One amendment allows the spouses of miners who received federal black lung benefits to continue to get them after the miner’s death.

“Without that provision that was reinserted in the law in the Affordable Care Act, the widow has to go and prove that black lung contributed to [her husband’s] death,” said John Cline, a Piney View-based attorney who deals primarily in black lung cases. “If the cause of death was heart attack, the widow had a hard time establishing that black lung contributed.”

That makes for a lot of financial uncertainty for widows at a time when they already have lost their husbands, Cline said.

Another part of the health care reform law allows miners with full disability because of black lung and at least 15 years in the mines a “rebuttable presumption” that mining work contributed to the disability, Cline said.

In other words, “it shifts the burden of proof to the company from the miner or widow, but only if the miner has full disability and 15 years [in the mines],” Cline said.

Cline said he’s seen the Affordable Care Act make a difference in the lives of black lung patients and their survivors.

“It has made a huge difference for widows whose husbands had qualified for benefits prior to their deaths,” Cline said. “With this provision, the widows just have to submit an application and the benefits continue almost immediately. They’re not subject to a loss of black lung benefits as well as the loss of their husbands.”

“If we lose that, that’s going to be terrible,” Hairston, also the vice president of the Fayette County Black Lung Association, said of the 15-year presumption. “On top of that, if I die my wife will keep on getting black lung [benefits], but if [it’s repealed] then she’s got to keep fighting.”

President-elect Donald Trump, who campaigned partly on a promise to put coal miners back to work, easily won West Virginia and Kentucky, which are among five states with the most black lung claims, according to the U.S. Department of Labor. But the billionaire’s campaign promise to repeal the Affordable Care Act made no mention of what black lung patients would do without the sections of the health care law.

Hairston said he hopes if lawmakers get rid of the Affordable Care Act, they replace it with something that also protects black lung benefits.

“If they repeal everything, you figure that’s gone,” he said.

Advocates of the Affordable Care Act say there may be reason to be hopeful. When Republicans previously tried to repeal the law by budget reconciliation in 2015, the Byrd amendments were not part of the repeal.

“The 2015 reconciliation bill that was passed by Congress before being vetoed and would have repealed portions of the Affordable Care Act would not have altered the black lung provisions,” Capito spokeswoman Ashley Berrang said Sunday. Sen. [Shelley Moore] Capito believes these black lung provisions should be retained as we move forward with repealing and replacing Obamacare.”

Sen. Joe Manchin, D-West Virginia, who advocated for fixing the Affordable Care Act instead of repealing it completely, introduced a black lung amendment and two others to the budget. The amendment would create “a budget point of order against any legislation that would shift the burden of proof of disability due to black lung away from industry and back on miners who worked in the mines for at least 15 years and suffered total disability or their survivors,” according to a press release from the senator’s office.

“By repealing, but not replacing the Affordable Care Act, our coal miners, rural residents and those struggling with addiction will lose access to the help that they desperately need,” Manchin said in the statement. “As I have said many times, I will be first in line to repeal the Affordable Care Act, if we have a better replacement ready, and the only way we will ever achieve that is by putting partisanship aside and working together as Americans first.”

In the House of Representatives, Rep. Evan Jenkins also introduced legislation aimed at preserving black lung protections, according to a news release. The legislation is co-sponsored by David McKinley, R-W.Va., and Alex Mooney, R-W.Va. The congressmen have opposed the Affordable Care Act.

“I will fight to make sure any replacement for Obamacare includes the Byrd amendment and this critical black lung benefits program for our miners and their families,” Jenkins said in part in the news release.

Bryant said WVAHC has been advocating for the benefits provisions with Capito and Manchin.

“My sense is that both senators are both working very hard to see the Byrd Amendments survive,” Bryant said. “[Trump] owes an awful lot to coal miners and their families.”

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