W000458
Wednesday, November 21, 2001 11:21 AM
American Arbitration Association Comments to Proposed Regulations on the September 11th Victim Compensation Fund
Kenneth L. Zwick
Director
Office of Management Programs
Civil Division
United States Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Dear Mr. Zwick:
By the attached document, the American Arbitration Association is
pleased to submit its comments on the proposed regulation on the September
11th Victim Compensation Fund.
Thank you for your attention to the foregoing.
Comments by American Arbitration Association
New York, NY
Attachment 1:
American Arbitration Association
November 21, 2001
Via Fax and E-Mail
Mr. Kenneth L. Zwick
Director
Office of the Management Programs
Civil Division
United States Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D. C. 20530
Re: Comments on Inquiry and Advance Notice of Rulemaking,
September 11th Victim Compensation Fund of 2001
P. L. 107-42; 115 Stat. 230
Federal Register Notice of November 5, 2001
Dear Mr. Zwick:
The American Arbitration Association ("AAA") appreciates the opportunity to provide comments on the inquiry and proposed rules implementing the victim compensation fund promulgated in Public Law 107-42 (the "September 11th Victim Compensation Fund" or "the Fund"). In the AAA's 75-year history as a not-for-profit, public service organization, we have accumulated significant expertise and experience in mass claims and have pioneered the design and implementation of numerous types of alternatives to litigation. Last year alone, the AAA assisted in the resolution of close to 200,000 disputes.
Through its 36 offices throughout the United States, the AAA has assisted in many mass claims caseloads of every type, including one recent class action settlement in which the AAA was designated by the attorneys general of 49 states to resolve approximately 60,000 claims. Last year, the AAA assisted in the resolution of close to 200,000 disputes. In addition, the AAA's assistance to the State of Florida in resolving claims resulting from Hurricane Andrew and to the State of California after the Northridge Earthquake has provided the AAA with the ability and sensitivity to handle such catastrophic claims. Such claims resolution systems should include due process protocols and standards, and balance these requirements with the speedy resolution of the claims.
In our experience, the choice of the neutrals, as well as the decision about the details of the process are both essential to implementing the goals of the legislation. The compassionate understanding of the claims being made, the clear knowledge of the appropriate processes and safeguards in making award decision and the expertise to manage the precise requirements and strict time frames required by high-volume caseloads are all essential. The AAA is eager to offer its assistance in this important undertaking; to assist both the victims of this tragedy and the Department in the orderly administration of justice in implementing this program.
Guiding Principles
The stated purpose of the September 11th Victim Compensation Fund legislation as enacted is to provide a swift, non-adversarial method for the disbursement of funds available to the victims and their survivors of the World Trade Center, Pentagon and Shanksville, Pennsylvania terrorist attacks.
This compensation program, while unprecedented in scope and purpose, should be simple, understandable, fair, and most importantly should be perceived as a cooperative venture between claimants and their representative government. Based upon the potential volume of cases and the time limits imposed by Congress, a fast, efficient and equitable program to implement the Fund must be established.
Appointment of the Special Master
While the AAA takes no specific position with respect to the Attorney General's choice of the Special Master under the Fund legislation, we do, however, believe that the appointee must oversee a system that is transparent; that can provide clear, unimpeachable data about the process and the progress of the effort to resolve these claims. Public confidence in this very visible and sensitive program must be maintained.
Appointment of a Claimant Ombudsperson or Organization
In order to ensure a high level of public confidence in the process and to increase the understanding of the claims process by potential eligible claimants, the AAA recommends that the Fund regulations include a provision for the appointment of a Neutral Claimant Ombudsperson or Organization. Having this function separate and distinct from the Office of the Special Master overseeing the decision-making process while working in close, collegial communication would have obvious benefits.
The purpose of this office would be to field all complaints and problems encountered by claimants in navigating the claims filing procedures. The Ombudsperson or Organization would file periodic reports only with the Special Master and/or the Attorney General to monitor the effectiveness of the program, and to raise areas of concern at the earliest possible time. This would allow the program or process to be adjusted as appropriate before public confidence in the program might be threatened.
Employment and Supervision of Hearing Officers and Administrative Personnel Pursuant to Section 404(a)(3).
The Department should ensure that Hearing Officers and administrative personnel have appropriate training, experience and backgrounds. The AAA recommends that the a panel of Hearing Officers that are chosen is diverse as to race, ethnicity and gender. (The AAA has the capability to assist the Department of Justice and the Special Master in the identification, selection, appointment and training of experienced Hearing Officers as well as key administrative personnel to provide day-to-day case management of these claims.)
The AAA recommends the following minimum qualifications for Hearing Officers:
i.) should be attorneys admitted to the highest court of the state of their practice; and have at least 10 years of related experience;
ii.) should have experience in handling expedited processes in high volume caseloads;
iii.) should be appropriately trained in the claims handling procedures encompassed in the legislation; and
iv.) should be trained by appropriate professionals in the sensitivity and privacy of such claims.
Similarly, the AAA recommends that administrative personnel have, at least, experience in law, accounting, or administration, and be familiar with computer database caseload applications.
Claims Procedures
In order to assist the Department of Justice in implementing the claims filing and hearing procedures as promulgated in the Fund legislation, the AAA suggests the following:
i.) Clear and easy to understand filing instructions and notices should be prepared in a number of relevant languages, and widely distributed in newspapers of general circulation (especially local newspapers published in foreign languages) in the affected geographic areas, government offices where other benefits are sought, and in public places in select geographic areas.
ii.) An administrative database must be designed and implemented in order for accurate records to be kept, for timeframes to be strictly adhered to, and for routine reports to be easily generated.
iii.) Eligible claimants should be able to file online as outlined in the legislation as well as file by written documentation.
iv.) The online site should be on a secure server and should provide multi-lingual directions and screens to assist in simplifying the filing procedure.
v.) A toll-free telephone number should be established to provide filing instructions with assistance in multiple languages.
vi.) A Help Center should be established in select locations where both staff and volunteers could assist those filing claims with filling out forms; and where there might be terminals installed to file such claims electronically.
vii.) TTD and telephonic filing should be provided to those presenting special needs;
viii.) A toll free number to the Ombudsperson or Organization should be available to file complaints and concerns regarding filing procedures.
Steps in the Claims Procedure
Based upon its experience in the handling of mass claim programs, the AAA recommends that the claims filing procedure be broken down into simple steps to facilitate filing, to reduce administrative processing time and to comply with the Fund legislation's 120 day award requirement as set forth in Section 405(b)(3):
i.) Claim filed by eligible claimant
ii.) Initial review of submission by administrative personnel for sufficiency and appropriateness of information
iii.) Identification of improper filers
a. Mistake
b. Fraudulent Filers
iv.) Processing of Claim into administrative database to begin the 120 day time period running only when a complete claim is received
v.) Document review process by Hearing Officer
vi.) Hearing date scheduled
The AAA strongly recommends that the Department of Justice and the Special Master consider alternate forms of hearings including telephonic, electronic, video-conferencing or in-person hearings at the option of the claimant. The AAA's experience with such processes is that majority of claimants do not choose in-person hearings when given a clear and convenient alternative.
vii.) Hearing Conducted
viii.) Award Rendered-Opportunity for Review Offered
The AAA recommends an opportunity for review be offered to all claimants. The award notice should make clear this opportunity, as well as the fact that the claimant would be waiving the 120-day period in order to request such review. The review mechanism might be a panel of 3 Hearing Officers and/or the Special Master in some cases.
ix.) Funds Disbursed
Types of Hearings
The AAA recommends that the Attorney General and Special Master consider alternates to in-person hearings for all claimants, but especially where such hearings would represent a grave inconvenience to the filer due to physical disability or where the amount of claim is limited. Alternates to in-person hearings might include:
Claims review on documents only
Video-Conferencing
Telephonic Hearings
The AAA has designed programs with all three alternates, which have proven successful in resolving smaller or less complex claims expeditiously.
Hearing Rules
The AAA believes that in-person full evidentiary hearings before Hearing Officers should be held with a relaxed standard of evidence as to monetary proofs where representatives' and claimants' documentation has been substantially or wholly destroyed.
Forms
In order to expedite the filing of claims by eligible claimants, the AAA recommends that a concise intake document, either in online, paper, or other transmittable form be utilized to obtain initial, basic information and build a database therefrom. Basic information should include relevant information as well as nature of relationship to the victim. The AAA takes no specific position as to who qualifies as an "eligible claimant" under the current legislative framework. The Department may wish to make comparisons of intake lists from those lists of victims developed by the City of New York Office of Emergency Management, the New York State Emergency Management Office, FEMA and/or the American Red Cross. Comparison may also further the legislative goal in rooting out possible inappropriate filers. To further expedite and simplify the claims process, the AAA recommends that the form or format of the filing documents include alternate methods of proof.
Possible indicia of proof could include:
* Death certificate
* Will
* Letters of Administration
* Certified Hospital Record
* Doctors Affidavit
* Statement of Loss and Impact on Financial Stability
* Bills-Rents, Mortgage, etc.
* Listing of Immediate Dependents including birth records where applicable
Forms should be in a scannable format to facilitate the building and maintenance of a claims database.
Based upon the potential volume of cases and the time limits imposed by Congress under the Fund legislation, a large number of claims could potentially be filed within days of opening this claims process to eligible claimants. The AAA recommends that adequate numbers of Hearing Officers, hearing facilities, and administrative personnel be screened, selected and trained well in advance of the implementation of the claims process. Depending upon the types of hearings permitted (documents only, telephonic, or in-person hearings) there should be somewhere between 55 and 75 panelists for the initial determinations. If a review process is included, more Hearing Officers will be required.
Conclusions
The AAA stands ready and able to assist the Department and the public in the implementation of an expeditious, fair claims resolution to claimants that will both carry out the goals of the legislation and will also withstand public scrutiny.
The AAA would also welcome the opportunity to present oral evidence of these comments at any hearings on these proposed rules.
We thank you again for the opportunity to submit these comments.
Comments by:
American Arbitration Association