dojW000802.xml

dojW000802.xml

born-digital

email

yes

no

2001-11-21

The Assembly
State of New York
Albany


November 21, 2001


VIA TELECOPIER
CONFIRMATION BY MAIL


Mr. Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice, Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue, NW
Washington, DC 20530


Re: "September 11th Victim Compensation Fund of 2001"

Dear Mr. Zwick:


Thank you for this opportunity to submit comments concerning regulations the United
States Attorney General is required to promulgate in order to implement Title IV of Public Law 107-42, 115 Stat. 230, the September 11th Victim Compensation Fund (hereinafter, "the "Act"). As elected legislators representing thousands of survivors of the September 11th attacks and their families, we have a great interest in ensuring that they receive prompt and adequate financial remuneration which would, in part, compensate them for their incomprehensible losses.

Below, we set forth several concerns and ideas that we believe the regulations should
address.


A. Eligibility: Interpretation of Certain Phrases

The Attorney General's regulations should assure that the Special Master employs the
broadest possible interpretation of the phrases "physical harm," "immediate aftermath" and "collateral source." Proper application of these phrases, as used in the Act, is critical to ensure that eligible survivors and family members receive just compensation and appropriate awards.

1. "Physical Harm"


The Act provides compensation for persons who suffered physical harm as a result of the
September 11th events. Physical harm, of course, should include not only bodily impairment or significant pain but, in the context of the Act and implementing regulations, also include physical manifestations that result from the trauma of September 11th. Post-traumatic disorders, for example, including but not limited to those that result in difficulty performing daily tasks and/or normal functions, are physical manifestations of these traumatic events which should be fully compensable under the Act. It would be cruel to deny compensation to these people who, though injured, have shed no blood and suffered no broken bones.

It is also critical to ensure that compensation is paid for harm that arises or is discovered after a claim is filed or after the time frame for filing a claim has passed. There is a latency period, obviously, for the development of certain ailments; for example, cancer and other illnesses sometimes develop or appear long after the inhalation of certain toxic substances. Survivors, rescue and recovery workers and other persons in New York City and elsewhere inhaled dangerous levels of toxic substances on September 11th and thereafter. The Attorney General's regulations must assure that harm resulting from these exposures is fully compensable under the Act.


2. "Immediate Aftermath"

The Act by its terms covers persons who were present at the World Trade Center,
Pentagon, or Shanksville, Pennsylvania crash sites, or at those locales in the "immediate aftermath" of those events. It is critical that "immediate aftermath" cover those heroic rescue and recovery personnel who arrived at the sites immediately after the attack and stayed, sometimes for weeks at a time, eating and sleeping in the dust and rubble. The long-term health effects of their heroic actions may not manifest themselves for years to come and it is imperative that they are protected. "Immediate aftermath" must be viewed in a broad geographic sense, as well. For example, persons in other parts of Manhattan and in
other New York communities may have been miles away from "ground zero," yet suffered
physical harm from toxic plumes that were emitted.


3. "Collateral Source"

The "collateral source" category described in the act must be narrowly drawn so as not to punish survivors and family members who received assistance from charitable organizations. "Collateral source" should only include funds received through a contract, an enforceable agreement, or a protected interest in a government entitlement, such as a social security benefit.

The rationale underlying monies paid through a contract or governmental obligation
differs, obviously, from that of a charitable gift. In the case of a contract governmental obligation, payment is made because payment is required under law. The charitable payment is made out of the generosity of the giver's heart. In this latter context, government's highest obligation is to honor the intent of the giver. It is highly unlikely that any contributor intended that his or her charitable gift reduce the amount a survivor or family member could recover as legal compensation for injuries incurred.

B. Eligibility: Immigration Status; Domestic Partners

Compensation under the Act should be available without regard to the immigration status
of the victim, survivor or family member. The death and destruction wrought by these tragic events did not discriminate based on age, gender, occupation or legal status. All those injured and their survivors and family members should be compensated. The Attorney General's regulation should provide that no person who elects to seek compensation under the Act will be punished for that election.

Domestic partners and family members of domestic partners should receive compensation
in the same manner as the spouses and children of married partners. The grief suffered by domestic partners and their family members is no less than that suffered by traditional families; it should be compensated no less.


C. Waiver

The Act provides a no-fault alternative to tort-litigation and a claimant must waive his or her right to commence a civil action upon the filing of a claim. Regulations should be clear that a filed but incomplete application does not constitute a filed claim for purposes of a waiver. In addition, waivers should be based on eligibility and those who are determined to be ineligible on an award and the Act should not be held to have waived their right to commence a civil action.

A waiver of rights occurs very early in the application process and before the statute of limitations may have expired for the commencement of a civil action. As a result, those
claimants who suffer damages undiscovered at the time a claim must have the opportunity to withdraw their claim and rescind such a waiver. Allowing 60 days from the time of a filed claim for the rescission of a waiver would balance fairness with finality.

The ability of a personal representative to waive other survivors' rights to bring a civil action should be carefully delineated and all such survivors must receive notice of the filed claim to allow resolution of the claim after consideration of all losses to all survivors.


D. Compensation

Claimants should be asked to submit no more documentation than is necessary to
demonstrate eligibility. Where a governmental entity has recognized a death or injury, that recognition should be accepted under the Act without requiring additional proof. Compensation for treatment necessitated by September 11-related sickness and injuries should be generous and holistic. The Attorney General's regulations should expressly assure that compensation will, where sought, include payment for chiropractic, homeopathic and non-traditional courses of treatment.


E. Appeal

The Act does not expressly address this issue, but the Attorney General's regulations
should make clear that a claimant may administratively appeal any determination of the Special Master. The Department could consider, for example, utilizing a procedure similar to that established under 29 C.F.R. Part 101 regarding the National Labor Relations Board. Consistent with the Act, a claimant could be permitted to bring his or her claim first to an independent hearing officer, then to a board, and finally to the Special Master on administrative appeal. It would not, however, in our view, be consistent with the Act to allow the government to seek review of any determination.


F. Easing the Burden on Survivors and Family Members

New York is a wonderfully diverse city. Its residents speak many tongues. Many
survivors and family members of persons who worked at the World Trade Center are recent immigrants to the United States who speak little or no English. It is imperative that pamphlets, forms and similar documents be available in many languages to accommodate all such individuals. Language must not be a barrier to obtaining compensation.

All forms and informational brochures should include a toll-free telephone number
applicants may call for assistance. Telephone assistance should be available in all appropriate languages.

At our Committees' November 7, 2001 public hearing, Nancy Anthony, Executive
Director of the Oklahoma City Community Foundation, testified concerning her organization's coordinating efforts in the aftermath of the bombing of the Murrah federal building in Oklahoma City, Oklahoma. Ms. Anthony testified that her organization assigned a caseworker to each aggrieved family to assist it in navigating the maze that sometimes characterizes local, state and federal governmental bureaucracies. This approach, she testified, worked extremely effectively in Oklahoma.

The Attorney General's regulations should similarly provide for the assignment of a
qualified caseworker or casework team for each survivor and/or family member inquiring about or seeking assistance under the Act.


G. Information Sharing and Record Keeping: Publicity

Identifying persons who are victims, survivors and family members of victims or
survivors of the September 11th attacks is of utmost importance. Unfortunately, during times of crisis, some individuals may seek to take advantage of the circumstances by filing false claims. Such persons should be vigorously prosecuted.

To help ensure that all persons eligible for compensation under the Act learn of the
compensation fund, the Attorney General should develop a public outreach and advertising
campaign. Advertisements should contain objective information and offer a toll-free telephone number. Advertising should not be a forum for campaign-style rhetoric or the promotion of one or more public officials.

The Attorney General's regulations should invite voluntary sharing of information and
records among charitable groups and between such groups and the government. However, the regulations should make clear that Special Master and his or her staff will not share information with the Justice Department or other governmental or non-governmental entities without the express written and knowing consent of the subject of the record in question.


H. Compensatory Claims

The clear intent of the Act is to assure generous compensation for the survivors and
family members of the victims of these heinous attacks. Consistent with these purposes and the provisions of the Act, compensation should include, but not be limited to, lost wages for the anticipated lifespan of the decedent, college expenses for children, lifetime medical insurance and coverage for ongoing medical expenses. Economic loss should include but not be limited to loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial costs and loss of business or employment opportunities.

The Attorney General's regulations should also assure compensation for non-economic
losses, including but not limited to physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, hedonic damages, injury to reputation and all other non-pecuniary losses of any kind or nature.

Very truly yours,


Sheldon Silver
Speaker

RoAnn M. Destito, Chair
Standing Committee on
Governmental Operations


Joseph R. Lentol, Chair
Standing Committee on Codes


Helene E. Weinstein
Standing Committee on Judiciary

Scott Stringer, Chair
Standing Committee on Oversight,
Analysis & Investigation

2001-11-21