N001735
Tuesday, January 15, 2002 5:48 PM
September 11th. Victim Compensation Fund of 2001
Attachment 1:
Kenneth L. Zwick, Esq.
Director, Office of Management Programs
Civil Division
United States Department of Justice
Washington, DC
Re. September 11th. VICTIM COMPENSATION FUND of 2001
Re. Comments on Interim Rule Published December 21, 2001
These comments are restricted to Part 104, Subpart D- Section 104.47 Collateral sources.
The SUPPLEMENTARY INFORMATION found in the transmittal of these interim rules contains a Statement by the Special Master. This statement, in part, recites that awards under the enabling act be offset by all collateral source compensation such as benefits from life insurance and other government programs. The Special Master then wrote that he found ambiguities in the statute as to gifts provided to victims and their families by private charities. Thereafter he said: "These regulations do not require that awards be offset by such private charitable assistance."
It appears ambiguities might continue in the publication of Section 104.47 of the Interim Rules. Sec.104.47 (a) sets out payments that constitute collateral source compensation to reduce the amount of compensation by the Fund. Subpart (b) sets out payments that do not constitute collateral source compensation including (2) Charitable donations distributed to the beneficiaries of the decedent-by private charitable entities. Provided, however, that the Special Master may determine that funds provided to victims or their families through a private charitable entity constitute, in substance, a payment described in paragraph (a) of this section.
I have to assume for the moment that the Special Master has in mind some unidentified special circumstances that might arise causing him to conclude that unjust enrichment in a particular occasion is in fact not a payment that would constitute collateral source compensation. By withholding approval of some unidentified situation the Special Master might well have placed a damper on activities designed to operate within full compliance with the legislative intent as well as the precise wording of the initial sentence of Sec.104.47 (b)(2).
For example, suppose a professional association suffered the loss of one of its members in the September 11, 2001 event.. Members of this association intend to establish a trust for the education of the son of this deceased member. While these members would prefer to proceed, some members are fearful that should they go ahead and set up the trust the Special master may conclude this trust is not a collateral source thus perhaps penalizing the recovery of the spouse of the decedentk Time tends to heal many wounds and we fear members may lose interest pending clarification of this issue.
We would ask the Special Master to please clarify, perhaps by example, what is intended by this apparent reservation of the right to determine that a special circumstance might not in fact be considered a collateral source of recovery. In the alternative perhaps the Special Master might conclude, again as an example, that the activity contemplated by this association is in fact permissible.
Thank you.
Individual Comment
Wanaque, NJ