W000351
Wednesday, November 14, 2001 6:53 PM
Comments to the Advance Notice of Rulemaking inre: 9-11 Victim Compensation Fund
Attachment 1:
November 14, 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
Dear Mr. Zwick:
Thank you for the opportunity to comment on the Notice of Inquiry and Advance Notice of Rulemaking for the September 11th Victim Compensation Fund of 2001 (the Notice). The Department of Justice has a daunting task ahead. In addition to the Notice, I have reviewed the Airline Safety and System Stabilization Act, with particular emphasis on Title IV - Victim Compensation, and will refer to it in this document. As someone who is familiar with the federal regulatory process, I hope that my comments prove to be meaningful to the Department of Justice (DOJ) and help your organization to craft the interim final rules. After you and/or your staff have had an opportunity to review my comments, if you need additional information from me, I would be honored to respond.
1) Page 2. "harm to the claimant"
As I read this paragraph, I understand that there are two categories of claimants: (a) individuals who are alive and were "present at" the various sites identified (e.g., World Trade Center, Pentagon, and Shanksville, PA) and (b) "personal representatives" of deceased individuals. It is my understanding that "harm to the claimant" relates only to those who are still alive who were injured as a result of the September 11th terrorist activities. I would recommend that the interim final rule makes this clear to the reader, and that the Government will not differentiate the level of harm to the deceased. The Government is not in a position to measure the level of pain and suffering of those who died in an airplane from those who died in one of the attacked buildings.
2) Page 2. (a) The purpose of this notice.
The text states that the Department is in the process of seeking information from State and local agencies that may be useful in crafting proposed regulations. May I recommend that DOJ consider other federal agencies with experience in crafting regulations for compensation programs? The U.S. Department of Health and Human Services, for example, has drafted regulations for Vaccine Injury Compensation and the Ricky Ray Hemophilia Relief Fund. Department of Labor is involved in regulations for compensation for individuals exposed to nuclear contamination. And DoD has draft regulations for compensation for Agent Orange exposure.
3) Page 3. (b) "interim final rules"
It is a noble intent to create interim final rules because of the emergency nature of the Victim Compensation legislation. However, both the act and the notice are materially deficient in two areas that would impact the regulatory process. Specifically, nowhere does either identify the dollar amount of the compensation nor the burden of the petitioning process. Because claimants are precluded from lawsuit against the airline industry, they need to know what the Government's offer is. This is particularly important in light of the diminution of the payment under the Act by collateral source material that includes life insurance. There is also ambiguity in the Notice's definition of personal representative who may collect in the case of a decedent. Therefore, until the very basics of the Act can be defined, DOJ may prefer to issue a notice of proposed rulemaking (NPRM) rather than an interim final.
4) Page 3. (c ) How to comment in response to this notice.
The text, "...it reserves the right under the circumstance to set aside any information that it lacks the time to consider before the Department must make its determination..." is troubling. The Act and the notice are particularly complex. If the Department requires more time than November 26 to December 21, then it should take the time it needs, particularly in light of the lack of availability of DOJ staff from Thanksgiving through Christmas with staff taking use-or-lose leave. Therefore, December 21 may be optimistic rather than realistic for implementing interim final regulations for a program of this magnitude.
5) Page 4. (e) The effective date of the rules to be promulgated on December 21, 2001.
For reasons mentioned in item 4, I believe that December 21, 2001 may be too soon for DOJ to publish interim final rules. Also, depending upon the paperwork burden for claimants, with a 2-year window of opportunity to claim, there may not be sufficient time to prepare a petition package. Not all of the states of the decedents, for example, have issue death certificates as of yet. New York and New Jersey have been particularly effective. However, there are victims from many states outside the eastern seaboard and from outside the United States.
6) Page 5. (f) Withdrawal from legal action within 90 days from the date the rules are promulgated.
Unless the interim final rules define the dollar amount of the payment, then there will be very few participants in the Fund, and no motivation to withdraw from legal action.
7) Page 5. Topics #1 and 2. The forms.
Section 401 (a)(2)(A) of the legislation states that, "The Special Master shall ensure that such form can be file electronically if determined to be practicable." Even with the limited information provided in the notice, the form and its supporting documentation may be prove to be substantial and not electronically transmittable if the Department needs to determine physical harm suffered by a surviving claimant and proof of death for the personal representative of the deceased claimant. In addition, the issue of what "is present" means has to be resolved before one can design a form to capture that information.
Clearly there are two different forms required - one for those who were injured and are still living, a second for the personal representative of the survivors.
Before DOJ can design the forms, the Department needs to define its terms. For example:
a) What qualifies as a physical injury?
b) What is meant by the term is "is present"
c) Who qualifies as a deceased victim?
d) Who qualifies as a personal representative of a decedent?
e) What qualifies as collateral source?
Complexities of the above include:
a) For injured persons - does the injury include those sustained by falling debris or smoke inhalation? Would they include sprains caused by running from the disintegrating towers and tripping five or more blocks away? Would the injuries include heart attack and strokes?
b) Does "is present" mean being inside the Pentagon, World Trade Center, or the airplanes only? Would it include individuals injured or killed in the Pentagon parking lot? How close to the points of impact did one have to be to be "present"?
c) Is a deceased victim someone who died in the named buildings and airplanes? What if the person died or was killed by falling debris from the buildings in proximity of the WTC (e.g., the other towers that fell)? What if a survivor died of a heart attack three weeks later?
d) Is a personal representative an attorney representing the estate, the widow, the children, the parents, the live-in partner of same or different gender? Should personal representation be based on those who were financially supported in whole or in part by the decedent? Does a person who had a current spouse and children from a prior marriage have multiple representatives?
e) The legislation includes life insurance among the collateral sources, as well as pension funds, death benefit programs, and payments by Federal, State, or local governments related to the terrorist-related aircraft crashes of September 11, 2001. Would collateral sources include Red Cross and United Way payments? Church-based collections to the survivors? Neighborhood collections? Donations to memorial funds? Because of this limitation alone, any survivor of someone who was well insured would probably not participate in the Fund.
8) Page 5. Sample Fields for the Forms design:
___________________________________________________
A. For those injured as a result of the terrorist activities:
Section A: Personal identifiers (name, address, day time phone, Social Security Number (SSN))
Section B: Nature of injury (provide supporting medical documentation, i.e., a medical report signed by a licensed practitioner).
Section C: Your location when you were injured (similar to a police report).
Section D: Collateral resources (amount and donor, including receipts and deposits)
B. For personal representatives of someone who died as a result of the terrorist activities.
Section A. Personal identifiers of the deceased (name, last known address, SSN, date of birth, date of death - not all the terminally injured died September 11, 2001. Some of the emergency workers died subsequently, for example) (include death certificate)
Section B: Personal identifiers of the personal representative (name, address, SSN, date of birth, daytime phone, relationship to the deceased.) (include birth certificates and or marriage licenses as proof)
Section C: Location of deceased at time of fatal injury (e.g., WTC, Pentagon, Shanksville, PA)
Section D: Average annual income of the past three years (include tax returns)
Section E: Collateral resources. (see above)
Note: The assumption I make for the personal representatives is that the Department will either pay all personal representatives the same amount or that there will be a formula based on the earnings of the deceased (e.g., the salary multiplied by either the number of years left in the deceased's career or the amount of money he or she would have earned over a finite period of time such as 5 years, with a 4% per annum cost of living increase). However, pain and suffering is not part of the equation.
Also note that if Collateral Source had not been spelled out in the legislation, I would recommend that the Department not deduct any amount from the payment by the Fund, regardless of insurance or other payments. If the Federal Government is culpable for payment to the injured and/or their survivors, then the payment should be made exclusive of other payments.
9) Page 5. Taking evidence.
My recommendation is that all petitions and documentation be in paper and reviewed by a central body with consistent standards. Payment for injuries should be from standard insurance tables. Otherwise, if there are oral procedures and multiple centers around the country, then there is great risk of inequities based on the location of the claimant.
10) Page 5. Should the statute permit the Special Master to temporarily halt or toll the running of the 120-day clock?
No, with the exception that certain claimants may provide inadequate documentation and therefore may need more time than 120 days to perfect the claim. However, once the claim is perfected, it should be resolved in 120 days. There is a finite universe of injured and deceased - probably 6,000 or less. And the processed should be sized appropriate to handle claims in a timely fashion.
11) Page 6. Qualifications of the hearing masters.
Based on other federal programs that make similar judgments on petitions for payments, the reviewers or "hearing masters" should include teams of individuals experienced and trained in medical and legal matters (e.g. health care practitioners and lawyers or paralegals).
12) Page 6. Procedures to assist an individual in filing and pursuing claims under this title.
If the process is kept simple and straightforward, then a web page and toll-free help line should suffice. In addition, the addresses of most of the victims are already known (e.g., personnel records and passenger manifests), therefore, the Department has the opportunity to create instruction packages delivered by direct mail.
However, if the filing process becomes onerous, then DOJ may need to offer training and filer support either directly or through contract in the key areas of PA, DC, VA, MD, NJ, NY, and CT.
13) Page 6. Limit the amount of fees that can be charged by legal counsel.
The Ricky Ray Hemophilia Relief Fund Act of 1998 sets a limit of 10% of the compassionate payment to legal counsel. However, the premise of that program is that the forms and filing would be simple enough that legal counsel is not necessary (which is also consistent with the Title IV. However, if the filing process becomes complex, then DOJ cannot put a limit on the charges.
14) Page 7. Department regulation or statement to clarify criteria.
The Department absolutely needs to clarify the criteria by regulation. See comment #7 above.
15) Page 7. "Present at", "Physical Harm" and "immediate aftermath"
These terms need to be defined specifically. And there is an understanding that some people will feel entitled to compensation from the fund, even if they do not meet the definitions. "Present at" should include:
a) At WTC - the entire World Trade Center complex, not just the towers. Virtually every building in proximity of the towers was damaged. This would exclude anyone north of Greenwich Village, for example, who sustained eye injury from flying dust.
b) At the Pentagon - the Pentagon building and the parking lot.
c) In Shanksville, PA - anywhere within a 100-yard radius of the point of impact, considering the risk of flying debris.
Physical harm should be limited to currently identifiable injuries, with currency determined as within 120 hours of harm (e.g., someone who sustained a back injury may not know it immediately, however, it may become symptomatic within 5 days). This would exclude someone who had a heart attack two weeks later.
Immediate aftermath should be limited to injuries and/or death within 5 days of the terrorist attack.
16) Page 7. Documentation of claimant's presence at the World Trade Center.
I would add the Pentagon as well. Documentation would include proof of employment and no proof by the WTC or Pentagon that the individual was on leave September 11. For example, if DoD had a signed leave slip for an individual for September 11th, and that person coincidentally died that day, then there may be an assumption that he or she died from other than the terrorist attack and therefore should be excluded.
17) Page 7. Personal representatives.
The determination of eligibility should be a direct result of the representative's financial support by the deceased. This clearly includes spouse and minor children. In the case where the spouse and minor children lived with the deceased, then there should be one payment to the spouse. If the spouse lived with the deceased and the minor children did not, then the payment should be pro-rated 50% for the spouse and the remaining 50% divided among the minor children. If there are others (e.g., life partners and parents) who can demonstrate that they were supported by the deceased (e.g. dependents as documented on income tax forms), they should collect from the Fund prorated at the same level as spouses and children. Parent survivors, siblings, etc. who were not supported by the deceased should not qualify for the payment from the Fund.
18) Page 7. Nature and amount of compensation.
As mentioned above, for the injured the Department should use standard, insurance payment tables based on the region (e.g. New York may possibly pay more for a loss of an arm than, say, Northern Virginia). For the personal representatives of the deceased, there is only the death benefit, without regard to location of the death (e.g. airplane, building, or ground).
19) Page 8. Economic loss for individuals whose economic streams were variable.
As mentioned above, the claimant should provide income tax forms for the past three years and use the average as the basis if income is indeed a determinant. The alternative is a flat fee regardless of the income of the survivor. The Ricky Ray Hemophilia Relief Fund, for example, pays $100,000 in one tax-free payment, without needs-testing the petitioner.
In addition to the above items, the Department needs to consider an appeal process to handle claimants who have been disapproved and who feel that the reviewers were in error in their disapproving the claim.
As a friend of a woman who lost her husband in the World Trade Center, and a high school classmate of an individual who died in the airplane that hit the Pentagon, I have more than a casual interest in the outcomes for the survivor families. If I can provide any additional assistance to the Department of Justice in its preparation of the regulations, I would be honored to do so.
In summation, whether through NPRM or interim final rules, DOJ needs to specify that amount of the payments from the Fund for claimants. It also needs to establish the basis of payment (flat fee or economic based on earning potential of the injured or deceased), limit the amount to be deducted from the payment because of money from a collateral source (the preference being to nullify this requirement of the legislation). And for personal representatives, I recommend that the payment be based on those whose support is impacted by the death or permanent disability of a victim.
Individual Comment
Kensington, MD