W000336
Tuesday, November 13, 2001 1:21 PM
Comments on regulations
RE: CIV 104P; AG Order No. RIN: 1105-AA79
September 11th Victim Compensation Fund of 2001
Dear Mr. Zwick:
We are writing because we are concerned about the proposed regulation that
will affect how victims of the September 11 tragedy will be compensated.
While we WILL NOT benefit from this regulation, we do have a relative whose
husband was killed in the WTC.
Unfortunately, in my opinion, the process implied by the Advance Notice of
Rulemaking is written by lawyers for lawyers. It is virtually impossible
for the families of those lost in the September 11th tragedy to determine:
* * How the process will work,
* * Whether it be will fair and equitable,
* * What the compensation level might be,
* * How much expense for lawyers, accountants, and other
experts will have to be incurred (and carried) while the claim is being
processed,
* * What is meant by ?Collateral Sources?,
* * What is meant by ?Non-Economic Losses?,
* * How much time (away from work and family) will be
involved in filling out forms and attending hearings,
* * How hearing officers will maintain any level of
consistency as they deal with 3,000 to 5,000 claims in ?120 days?, and
* * How to deal with an array of other complex issues.
In short, the initial direction and thrust of these regulatory issued, as
outlined in this document, does not provide us with the information needed
to see how the families will be dealt with. The crazy procedures and, in
many cases, lack of action by the 160, or so, charities and State and local
governments has given us no hope of a commonsense-based process from the
Federal government.
Here are issues that I wish to comment on, at this time:
1. This process that is alluded to in this document is way too complicated,
and will, in my opinion produce vast inconsistencies and inequities due to
the wide range of highly subjective information (such as non-economic losses
and collateral sources).
2. Existing information should be used. The government knows how much all
of the victims made and their ages (IRS and Social Security files). This
should aid in the process being more objective and less inconsistent.
3. Section 405(a): Various State and local government agencies have already
determined the status of the victims. Death Certificates have been issued.
Lists have been compiled. Don?t make anyone start from scratch. DOJ should
start by contacting the families with what is already known. If someone
feels forgotten, then they can step forward.
4. Forms should be filled out by DOJ before the first contact, and then
request corrections, if any, concerning names, addresses, phone, SS#s,
recent earning levels, victim status, etc.
5. Section 405(b)(3): The Special Master is supposed to ?make final
decisions on claims within 120 days of the date of filing.? If a victim?s
family filed on December 22, 2001, it is UNLIKELY that their ?collateral
sources will be complete or known.? Their economic and non-economic losses
may also NOT be complete. Given the extremely slow and confusing
performance of many charities and State/local government agencies concerning
this matter, the Special Master will be forced to render a decision on the
claims before all data is known.
6. If the Special Master decides to hold up a decision on these claims (that
are filed early) to determine what other ?collateral sources? may be
forthcoming, this process could take a very long time. Those who wait longer
to file, may be penalized because they would have collected more from
charities at the time of filing.
7. Instead of rejecting claims that are not properly filed, why doesn?t the
DOJ or Special Master ASSIST families in completing this process? This fund
has been established to ASSIST these families. Why not treat them as
CLIENTS, and not people that have a ?burden of proof? to overcome?
8. The discussion concerning ?hearings?, ?types of hearings?,
?representatives at hearing?, ?hearing officers?, and ?hearing documents?
point toward a process that will reward those that have the best lawyers and
accountants.
9. Having all these hearings (because the process is so complicated) also
seems to point to a wide range of potential inconsistencies. If there are
1,000 cases to be handled in the first 120 days (referred to in this
document) and each ?hearing officer? could handle one case every two days
(optimistically, one for hearing and one for decision and documentation),
then there will have to be at least 17 hearing officers. If cases take 3
days, 25 hearing officers will be needed. And, if they don?t work on
weekends, then 34 hearing officers will be needed. If more than 1,000 cases
are filed at any one time, then even more hearing officers will be needed.
How will all of these hearing officers maintain strict consistencies amongst
all of the cases? A less complicated and subjective process will solve
these potential problems.
10. If these hearings and assistance for those filing claims is not
convenient, it will favor those that have resources and flexibility (time
off work and away from family) to travel to a remote location. Hearings (if
necessary) and assistance should come to the families.
11. Families may benefit from newsletter, web sites, and toll-free numbers,
but DOJ must understand that most of the victims? families have been filling
out forms, making endless phone calls and frustrating visits in order to get
ASSISTANCE from charities and State/local agencies since September 11th.
These families need PERSONAL, ONE-ON-ONE, ON-SITE HELP. Many of these folks
are exhausted. To put them through yet another complex process completely
misses the spirit of the Federal Act. Go to the families? home!
12. The entire discussion of fees for lawyers, accountants and other experts
may be necessary, but foretells of a process so complicated that all of
these folks will be needed. It also foretells of a process where families
will get a wide range of expert assistance. Those that have better experts
will get more. Potentially, more inconsistencies will be introduced into
the process.
13. Encouraging these fees and use of a wide range of experts may also mean
that families will have to pay for each expert with a hope of getting paid
back four or five months down the road. Many of these families cannot
afford to ?spend money in order to get money? from this process. Some are
living on charity gifts for day-to-day living expenses. Are they supposed
to ask the charities for additional gifts in order to pay for lawyers and
accountants, in order to get a fair share of the Federal funds??? DOJ
should take the money that they are thinking of using for the ?hearing
officers? and use it as ?client assistance managers? to DIRECTLY HELP the
families get the help they need, and should make the whole process more
consistency. It would also mean that more of the Federal funds will
actually go to the families, and NOT TO LAWYERS and others.
14. Section 405(b): Some level of commonsense should rule the question of
who is eligible. Families that shared a household should be the baseline
status to determine eligibility. If people did not live with the victim AND
were not legally related, then they should not be eligible. Just being
?present at? the September 11th locations should not be justification for
eligibility.
15. The Special Master should accept the determination of the victims?
status and identity ALREADY MADE by the Companies and Governmental agencies
that know the situation best. If clarification is needed, then address the
exceptions with extra effort.
16. Claims should be filed by each family. That includes all those living
in the same household as the victim. No others should be included, with the
possible exception of those that can demonstrate a long-term financial
dependence on the victim?s income.
17. Section 405(b): In order to get funds out to the families quickly and
fairly, a certain amount (say, half) should be divided among the families.
Each family to get an equal share (regardless of collateral sources,
economic losses, number of family members, etc.). This portion of the funds
could be distributed with very little need for additional data other than
establishing the victim?s status/identity and link to the claimant. It
could be distributed early, and separate from other portions of the program?
s funds.
18. The use of a schedule (or hypothetical examples) would be helpful in
determining the relative value of this program. The schedule should reflect
how each of the Program?s elements is influenced by the factors used to
distribute funds.
19. Individual determination of Economic Loss seems subjective and subject
to a great deal of interpretation. This may lead to inconsistencies and
inequities. A simple schedule or formula should be used whereby the same
results can be generated by many people using the same data points for
input. Again, fairness and equity is key. It should also be simple to use
and understand. There are many examples for how this could work.
20. Specialists should ONLY be used to establish this methodology on a total
program basis and NOT ON AN INDIVIDUAL CASE BASIS.
21. The Economic Loss calculation should be based upon the salary level of
the victim.
22. Section 402(7): It is impossible to determine the level of ?pain and
suffering? based upon the outcome of the tragedy, especially at the World
Trade Center. Trying to determine variations in distribution amounts based
the location of the victim (prior to the incident) is impossible, and an
insult to the families.
23. Spouses of victims should benefit far more than others.
24. Complicated formulas and hypothetical determinations of different
amounts for those on the planes versus the Trade Center versus the Pentagon
should NOT be used.
25. Everyone and each victim?s family suffered an equal loss. Don?t try to
differentiate between those that may have known about the impending disaster
before the actual event versus those that may have died immediately. This,
too, is insulting to the families, and is impossible to accurately
determine.
26. Section 405(b)(6): As stated previously, charitable contributions may
most likely not be fully settled by the time the early claims are determined
(120 days after filing). Holding up these claims while waiting for the
charities, will likely result in a hardship for many families. Therefore,
do not consider charitable contributions as part of any collateral sources
to reduce the program?s distributions.
27. It is also extremely unfair to penalize families that have saved money
over the years and lived within their means. Therefore, do not consider
saving accounts and investments as part of any collateral sources to reduce
the program?s distributions.
28. It is also extremely unfair to penalize families that have purchased a
house in which to live. Therefore, do not consider the value of a primary
residence as part of any collateral sources to reduce the program?s
distributions.
29. It is also extremely unfair to penalize families that have purchased
private insurance policies. They have paid for these policies, and have
foregone other advantages because of this action. Therefore, do not
consider the value of private insurance policies as part of any collateral
sources to reduce the program?s distributions.
30. It is also extremely unfair to penalize families that have pensions or
insurance from the companies or agencies for which they worked. They have
worked for these pensions and insurance as part of their fringe benefits
(like vacation or sick leave). Therefore, do not consider the value of
company or agency pensions or insurance as part of any collateral sources to
reduce the program?s distributions.
31. Collecting a whole array of data on or getting appraisals on home
values, cars, and other personal belongings will cost a tremendous amount of
money, take much time, create inconsistencies, and penalize families for
what they have worked for over the years.
32. The Program?s objective is NOT to ?make everyone equal? in terms of
their income status. It is, in my opinion, to be fair and equitable to all
the victims? families.
33. Trying to account for ?future collateral sources? is subjective,
speculative, and tries to value sources that may never (fully) materialize.
I am extremely disheartened with the way these regulation and Program
procedures seem to be heading. Based on the overlapping and endless
bureaucracy that the families have been put through from the 160 different
charities, State agencies, and local governments, we need something simple,
fair and understandable.
Here is what I would suggest:
1. 1. Half the funds to be divided equally among the victims?
families, with distributions to be made quickly. Only the victims?
immediate household should be counted as the ?family.? No extended family
members should be counted unless they are on the most recent IRS tax return
as a dependent.
2. 2. One sixth of the funds to be divided based on economic loss,
linked to the victim?s recent earning history. It should not be based on
need or number of family members.
3. 3. One sixth of the funds to be divided based on non-economic
loss divided among the family members with the majority of the funds going
to the spouse of the victim.
4. 4. One sixth of the funds to divided equally to all of the
victims households and reduced, if appropriate, by collateral sources, NOT
including:
a. a. Charity distributions
b. b. Private insurance
c. c. Company insurance
d. d. Company pensions
e. e. Home value
f. f. Personal property
g. g. Saving and investment accounts.
5. 5. Families should NOT be treated a claimants that have the
?burden of proof? to overcome.
6. 6. Families need one-on-one assistance, not endless paperwork
and hearings.
7. 7. We should NOT encourage those that have the best lawyers and
accountants to win the most funds.
8. 8. We should use existing data (e.g., tax returns, Social
Security data, issued death certificates, etc.).
9. 9. Make this process objective and consistent, so that the
results can be reproduced (within a small margin of error) for each family
by several people making the same calculation. Use standard schedules and
understandable formulas.
10. 10. Multiple hearings and hearing officers will, in my opinion, result
in inconsistencies.
Sincerely,
Individual Comment
Corona, CA