W000300
STATE OF OKLAHOMA
DISTRICT ATTORNEY COUNCIL
OKLAHOMA CITY, OKLAHOMA
November 8, 2001
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington, DC 20530
RE: September 11th Victim Compensation Fund of 2001
Dear Mr. Zwick,
In the attached document, I have attempted to answer each topic with relevant comments that
may assist the Department in setting up the September 11th Victim Compensation Fund of 2001.
My comments are based on 17 years of experience with a state compensation program and
more specifically, my experience in assisting victims with compensation after the Oklahoma City
bombing in 1995.
I hope you find these comments and recommendations useful. If I can offer further information,
please feel free to call me at .
Sincerely,
Oklahoma Crime Victims Compensation Board
Billing Code: Department of Justice, Office of the Attorney General
28 CFR Part 104
CIV 104P; AG Order No. RIN: 1105-AA79
September 11th Victim Compensation Fund of 2001
To: Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Dept. of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington, DC 20530
From: Administrator
Oklahoma Crime Victims Compensation Board
Oklahoma City, OK
Date: November 8, 2001
Re: Public comments regarding September 11th Victim Compensation Fund of 2001
Topic 1 & 2: The forms to be used in submitting claims under this program and the
information to be included on the claims form:
I recommend the Special Master obtain copies of claim forms from state victims compensation
programs and decide which one meets their needs without having to "reinvent the wheel" so to speak.
The National Association of Crime Victim Compensation Boards has links to state compensation
programs at their website: nacvcb.org. Most programs can be contacted via the Internet. The Office
for Victims of Crime may have copies of applications as well. The DOJ could modify a state
application to meet their needs. Instructions for the claimant need to be as detailed as possible to avoid
confusion and future criticism of the process. The instructions also need to detail what will be
considered a collateral source (i.e. insurance, retirement benefits, donations, workers compensation,
etc.). Terms should be defined and if there are caps, those should be listed.
The Department may have a difficult time getting information that will be needed in order to verify
expenses because the law does not give specific authority to do so. At the very least, a release of
information, signed by the victim or claimant, will be essential for the Department to be able to obtain
information from third parties.
Supporting documents that may be needed include: a doctor's statement of disability, proof of victim's
net income, information from insurance companies, pension plans, Social Security, charitable
organizations, explanation of benefits from medical insurance companies, and verification from a
physician that medical treatment is related to the crime. Itemized statements for medical, dental, and
funeral expenses may also be necessary in order to verify economic loss.
With regard to when a claim should be deemed "filed", the Special Master may wish to consider all
claims "filed" as soon as they hit the door. Claims can be found "ineligible" if sufficient information is not
provided. It is not unusual for victims to get confused by the process and forget to turn in all of the
documents that will be requested. If there is something missing, the Special Master may wish to contact
the claimant and give them an opportunity to get the missing information. If the Special Master simply
denies the claim because of insufficient information and there is no appeal process, claims may be
denied for legitimate victims who may be incapacitated and unable to assist with the process. It may be
feasible to award federal grant funds to state compensation programs in the affected areas to hire
people to assist these claimants at the local level, before the claim ever reaches the Special Master for
decision. Before a decision such as this is made, it would be advisable to speak with the state
compensation programs that have been directly impacted.
Topic #3: Procedures for hearing and the presentation of evidence.
Witness statements could be considered if the victim's presence at the sight is in question. Witness
statements may also be used to verify the victim was not disabled prior to September 11th.
The law states the Special Master shall complete a review, make a determination, and provide written
notice to the claimant, with respect to the matters that were the subject of the claim under review. The
Special Master may very well review the case and determine additional information is needed. This
decision to postpone awarding the claim would be perfectly valid under the law because it does not say
an AWARD must be made within 120 days. Notice of the Special Master's decision to continue the
claim could be sent to the claimant and the case could stay in pending status until the requested
information is received. The decisions made by the Special Master should not be rushed. The 120-
day clock could begin when ALL documentation in received, which may or may not be at the time the
claim if filed.
If attempts have been made to gather supporting documentation and the claimant fails to provide this
information after a deadline has been clearly given, the Special Master is justified in declining an award
and the claimant should not be permitted to re-file the claim.
The claimant could be given the choice of a paper hearing or an oral hearing, only if the Special Master
denies the claim and no funds are awarded. It would be to the claimant's benefit to have a hearing
officer or panel of officers (similar to a Board). Hearing officers should be allowed to ask questions,
request submission of additional in formation, and prepare recommendations for consideration of the
Special Master. The proceeding should be recorded and held in a location convenient to the claimant.
Scheduling conflicts are going to arise. The claimant should only be allowed to cancel a hearing once,
and only in the event of an emergency. If the victim or claimant fails to appear without notice, they
should be denied any future opportunity for a hearing.
Topic #4: Procedures to assist an individual in filing and pursuing claims under this title.
The process should not be do difficult that financial experts and attorneys will be needed to get through
it. If a cap is placed on non-economic losses, and economic losses such as income loss are based on a
formula that is universal for all claimants, there will be no need for economic experts. The burden should
be on the Special Master, not the claimant, through personal economic experts, to decide what the
economic loss is.
A toll-free number (answered by live human beings) would be helpful to the claimants. Newsletters
would be helpful in order to notify families of changes that are made in the procedures. Office location
should be easily accessible to the public. If attorney fees, accountant fees, etc. are to be paid out of the
compensation awards, the Special Master could set a fee schedule and notify the claimant of this
schedule at the time the claim form is sent to them. The instructions could make it clear that any
expense for attorney fees or economic experts, over the fee schedule, will be the claimant's
responsibility.
There should be no rules as to who can assist the victim or claimant in filing claims and in proceedings.
The only rule pertaining to this should specify professions to be compensated under a fee schedule.
The Department should take no action to ensure that individuals who have the option of filing a
compensation claim with this program are not improperly solicited or influenced by those with an
interest in having them make such an election.
Topic #5: Claimant Eligibility
It will be difficult to verify who was "present at" the WTC. Persons present at the Pentagon and those
in Shanksville will likely be easier to identify. Since the program will only be considering claims for
those killed or physically injured, information from the physician or medical records may be sufficient.
Deaths should be documented by death certificate. "Present at" should include any area impacted by
the debris, smoke, etc. "Immediate aftermath" was most likely included to cover first responders.
"Physical harm" should be a tight interpretation and should only refer to physical injury (not
psychological) that resulted in the need for medical treatment. Obviously, someone who simply cut a
finger while escaping the WTC should not be entitled to the same type of award as the person who lost
his hearing or sight as a result of the incident. It would be to the program's benefit to make awards only
when there is serious injury or death. This will eliminate the potential for massive fraud. Awards for
latent, but not yet evident, harm should be considered if the claim is filed within two years and the
serious injury is deemed a direct result of the incident on September 11th, with confirmation from two
reputable physicians.
It will be difficult to positively confirm if someone was injured at the WTC and other affected areas.
The only way the compensation program was able to do this in OKC was through verification of a visit
to the ER. ER reports typically show where the victim sustained the injury and can be obtained through
hospital medical records. If the Department chooses to consider non -serious injury, the possibility of
fraud will be much higher. If a case is suspicious, keep asking for more documentation until there is
substantial proof that the victim was where they say they were. There should be stiff penalties for
anyone filing a false claim and those penalties should be in the claim instructions. The penalties need to
include repayment of the award if fraud is discovered.
Before "immediate aftermath" is interpreted, the Department may want to consult with the drafters of
the language to find out the intent. If the language was strictly to provide for the first responders,
perhaps this can be clarified by rule.
The "personal representative" should be a spouse, parent, or legal guardian of a dependent child of the
victim. Once the "personal representative" files the initial claim, the Special Master could allow co-
claimants to file claims. In death claims, it will be important to have procedures that allow for multiple
claimants. We have found at the state level that it is impossible to have only one claimant or "personal
representative" in all cases. Consider a person who has had multiple marriages with ex-wives and
children from each. Often times these families do not speak to each other. Limiting compensation to
one claimant would be unfair and impractical. It could also lead to unnecessary litigation. I would
recommend having one case file per victim with consideration for multiple claimants under that claim.
Claim forms will likely be needed from each claimant and all could be tied together with a unique claim
number for the victim. Failure to identify all potential claimants could lead to disaster for the program.
Waivers for civil action could be signed by anyone who is signing the claim form as the claimant or legal
guardian of a minor child.
Topic #6: Nature and Amount of Compensation
In order to make the job of the Department less burdensome, and create fairness for the victims and
family members, I recommend a cap be placed on the non-economic loss portion of the award. A
higher cap could be considered for death claims and those involving permanent disability. If the
Department plans to consider eligibility for victims of non-serious injury in the scheme, I recommend a
much lower cap for non -economic losses. Victims want information up front. By having caps and
limits, everyone knows the rules and there are no surprises. When they know these things before they
ever make the claim, the victim will not feel "cheated" and will be less likely to view the Special
Master's decision as arbitrary and in equitable. Before ever making a claim, these families have an
important decision to make about their future. By giving them all of the information possible about what
they may be eligible to receive, families will be able to make an informed decision about whether or not
to file a claim.
Income loss - Long term loss of support can be computed as follows:
For victim's spouse:
Net monthly income at time of death divided by number of people supported by the income; times the
number of months it would have taken for the deceased victim or claimant (whichever is the lesser
amount of time) to reach life expectancy.
For victim's dependent child:
Net monthly income at time of death divided by number of people supported by the income; times the
number of months it would take from the incident date to the dependent child's 23rd birthday or the
victim's life expectancy (whichever is the lesser amount of time). Life expectancy carts can be obtained
from most insurance companies.
Once this figure is computed for each eligible dependent, the Department can calculate the amount of
Social Security, life insurance, retirement, workers compensation and other identified collateral sources
the spouse and dependent children will receive over the same period of time stated above. If collateral
sources exceed the amount of support the victim was providing prior to death, there is no economic
loss. If the amount is less, there is economic loss and an award can be made. Charitable contributions
could also be deducted in this manner, if the Department finds them to be a collateral source.
For economic losses of individuals whose lost future income streams would have been highly
contingent, variable, or unpredictable, the Department may want to consider requesting the past three
years tax returns and base the net income on an average of those three years. This practice can also be
used for self-employed individuals and those with no pay stubs or other proof of income.
In order to make the process equitable, there needs to be distinctions made between individuals who
died. Those distinctions should be based solely on the net income at the time of their death, or an
average income over a three-year period when considering loss of support for the family. For survivors
with serious physical injuries, it may be prudent to draw meaningful distinctions between types of
injuries, not individuals, if lump sum awards are being considered.
I have no recommendation for standards to be employed for determining non-economic losses. We
do not pay for non-economic losses in Oklahoma. I would recommend, as stated earlier, that caps be
considered for non-economic losses.
Collateral Sources: There are pros and cons for considering charitable contributions as a collateral
source. In Oklahoma City, the state compensation program did consider some charitable contributions
collateral sources, to the extent the contribution could be tied to a specific expense. In other words, we
knew the American Red Cross was paying for the majority of the funerals, therefore, we determined it
was not practical for our program to duplicate the payment of this expense. We did not consider
assistance given for housing, clothing and food a collateral source because these are expenses the
compensation program cannot pay. Other potential collateral sources could include: medical insurance,
worker's compensation, Social Security, pension/retirement funds, disability insurance, auto insurance,
life insurance, etc. In-kind contributions should not be considered a collateral source.
It will be impossible for the Department to know what a victim or family is "entitled" to receive from
charitable organizations unless the organizations share that information. Statements from insurance
companies and other collateral sources (with the exception of charitable organizations) are fairly easy to
get, but sometimes take time. The claimant, without difficulty, can usually provide this information. It
will be impossible to verify all collateral sources without the claimant providing the information. In other
words, if the claimant chooses not to tell the Department about a $250,000.00 life insurance policy ( a
collateral source by law), it may be difficult for the Department to find out this information, unless the
policy was through the victim's employer.
Fraud Prevention Measures
The Department could state the punishment for fraud on the signature page and make the claimant sign
that they understand they will be prosecuted if fraud is discovered. Detecting fraud may be difficult if
victims of non-serious injuries are considered eligible for benefits. It may be equally difficult to relate all
of the medical treatment, work loss, and other expenses the victim is claiming to the September 11th
attacks.
In order to prevent fraud, I recommend the Department watch the following areas of potential fraud
very closely: 1) invalid and non-certified death certificates; 2) expenses dated prior to the attack, and
those that appear to have no relationship whatsoever to the attack; 3) physician verification of disability
that comes directly from the claimant rather than the physician's office; 4) employer verification when
the employer is a family member of the injured or deceased victim (ask for tax returns to verify income).
As much as we all hate to think about it, fraud does occur and we should be on the lookout for it.
Thank you for the opportunity to offer these comments.