N002538
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, DC 20530
September 11th Victim Compensation Fund of 2001
Special Master Kenneth Feinberg
Victimcomp.comments@usdoj.gov(encouraged delivery method)
Fax 301-519-5956(alternative delivery method)
Re:24-hour medical treatment rule - 28 CFR Part 104 [104.2(c)(1)]
Dear Special Master:
Section 104.21(c)(1) of the interim final rule to Title IV of Public Law 107-42 states, in
relevant part, that you impose a requirement of "medical treatment
within 24 hours of the injury having been sustained" for any injury to be considered
by you as "physical harm."
In fact, the statute under which you labor - Public Law 107-42-states, in
relevant part, that a person is eligible for the compensation under the law if two
conditions are met: that the person "(i) was present at the World Trade Center..."
and"(ii) suffered physical harm or death as a result of such an air crash."
To begin with, Congress wrote that is wishes to compensate any person that
was present at the WTC and suffered physical harm. It would appear that your
inclusion of a 24-hour medical treatment requirement limits the wish of Congress.
The Executive Power can not limit the will of the people as expressed by Congress;
it should only execute it.
You saluted this law as "unprecedented expression of compassion on the
part of the American people to the victims and their families..." It seems cruel and
unamerican to exclude from this expression of compassion many victims just
because it took them more than 24 hours to receive medical treatment.
In fact, you admit that September 11 victims were "devastated by the
horror and tragedy of September 11." To some of the victims, living and reliving this
horror(not only the first day but days, weeks and months), disoriented them and
made them live recurrent nightmares and flashbacks disabling them from any
activity. Others were so scared that did not dare go out of their homes. Still others,
to this day can not take a subway or go out of their homes without their loved ones.
In other cases, victims were feeling so bad from the injuries to their bodies
and respiratory systems that simply could not get out of their homes. Many were
disoriented for a long time. In many cases, the victims had children to take care of,
who were terribly frightened and emotionally affected. They had no real choice.
They had to live with their pain while they took care of the children. In other cases
it took time for the victims to organize themselves and find care for their children so
that they could go to get medical treatment.
Finally, your introduction to the interim final rule acknowledges receiving
comments from many organizations. Notably, you do not mention any medical,
scientific or psychiatric organization. The rules should be made on medical and
scientific basis. Medical, scientific and psychiatric associations are in agreement
that (1) "physical harm" can not be defined by the period in which treatment is
sought for the injury, (2) physical injuries exist whether the victim seeks medical
treatment or not, and (3) a victim may have physical harm and not even know it, at
least for a long time. Conversely, there is no medical, scientific or psychiatric
evidence that correlates the severity or existence of "physical harm" with the period
in which medical treatment for it is provided. Each human being is different.
Your own Department of Justice has doctors, social workers and
psychologists advising the victims: These professional will tell you-and have done
so already- that the victims with physical harm are as likely to have retreated onto
themselves for days and weeks so that they were unable to go get medical treatment
within 24 hours. The federal Center for Diseases Control-as well as the Surgeon
within which the victim sought medical treatment. Prestigious groups as those
mentioned, together with the American Medical Association and the American
Psychiatric Association as well as professors and researchers should also be
consulted: they will tell you that the 24-hour medical treatment rule is not
medically or scientifically based.
Over 100 WTC victims and their families integrate the Hispanic Victims'
Self-Help Group. The "medical treatment with 24 hours" requirement imposed by
the rule will exclude from the benefits provided by the law more than 50% of the
victims with medically proven physical harm.
As you say, your office is "required, of course, to adhere to the language which
Congress set out in the statute." The statute provides for compensation to victims
who suffered physical harm in the World Trade Center - and other specified places-
on September 11 as a result of the air crashes. Your office is not make a rule
limiting the language and purpose of Congress's compassionate pronouncement.
Comment By
Hispanic Victims' Self-Help Group