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2002-01-18

Governor of the

Attorney General of




State of New York

the State of New York








January 18, 2002


VIA OVERNIGHT MAIL




Kenneth Feinberg, Esq.

Kenneth L. Zwick, Esq.



Special Master

Director, Office of Management Programs




September 11th Victim Compensation Fund

Civil Division, U.S. Dept. of Justice



780 Third Avenue, 22nd Floor

Main Building, Room 3140



New York, New York 10017

950 Pennsylvania Avenue NW





Washington, D.C. 20530





Dear Messrs. Feinberg and Zwick:

We write to comment on the Interim Final Rule promulgated on December 21, 2001
pursuant to the Air Transportation Safety and System Stabilization Act ("ATSSSA" or the
"statute"). For ease of presentation, we have attached a mark-up of the Interim Final Rule that offers specific language to address each of our concerns, as well as a section-by-section commentary setting forth the reasons for our proposed changes. Discussed below are our most significant concerns, and why their immediate resolution is essential both to ensure a fair distribution of the Victim Compensation Fund (the "Fund"), and to ease the already significant burdens placed upon grieving families.

A. Eligibility

The Interim Final Rule excludes from participation in the Fund many whom Congress
intended to compensate. For example, though ATSSSA covers survivors and beneficiaries of those who suffered "physical harm," the rule redefines and restricts "physical harm" to mean only disabling or incapacitating physical harm that can be documented by medical records created within 24 hours of the attack. The statute does not limit eligibility to those who suffered severe harm, nor does it purport to limit the means by which one can prove injury. Many of the injured went to triage centers that offered none of the documentation required by the rule, and many others did not seek medical assistance within 24 hours. Therefore, a final rule must be promulgated to allow claimants the opportunity to prove "physical harm" by whatever means available.

In addition, although nothing technically precludes undocumented aliens from seeking
compensation through the fund, the Interim Final Rule effectively precludes their participation by
failing to offer any protection against disclosure of their undocumented status to the Immigration
and Naturalization Service ("INS"). Indeed, Section VI of the "Eligibility Form and Application for
Advance Benefits" requires claimants to authorize disclosure of "any potential violation of law." The federal government has, in other contexts, restricted the disclosure and use of immigrant status information to promote various public policy goals. Similar confidentiality protections must become part of a final rule to allow those who were injured or the families of those who lost their lives to be compensated from the Fund without having to fear deportation.

Finally, many individuals lost loved ones on September 11 with whom they were in
relationships of economic dependence or mutual interdependence. With appropriate proof of these relationships, all such persons should be considered potential distributees.

B. Collateral Sources

Instead of providing needed clarification, the Interim Final Rule forces victims to guess
when or if charitable contributions received by victims will be deemed collateral sources. Section
104.47 indicates that they will not be deemed a collateral source, unless the Special Master deems
otherwise. Clarification is necessary so that the nebulous exception does not swallow the rule. No
charitable funds received by victims including funds donated by the public to government entities
for distribution for charitable purposes should be treated as a collateral source offset to an award
under the fund. Moreover, once appropriate collateral sources under the statute (such as life insurance and government payments) are calculated, they should not be offset against a
noneconomic loss, unless it can be shown that the collateral source was intended to compensate non-economic losses.

C. Economic and Noneconomic Losses

The statute requires the Special Master to determine the specific economic and non-
economic losses incurred by claimants. The Interim Final Rule, however, provides presumed loss amounts, and does not enable one to overcome the presumptions with evidence of individual facts and circumstances. Instead, the rule requires one to demonstrate "extraordinary" circumstances to qualify for an award above the Special Master's presumptive economic and noneconomic loss calculations. This burden on the claimants is contrary to law, and must be eliminated.

D. Waiver

The Interim Final Rule compels claimants to waive important litigation rights before
claimants have received information sufficient to make a knowing waiver. The statute requires that claimants waive their rights to file civil actions for damages once they submit a claim to the Fund. The rule deems a claim "submitted" once a substantially complete application has been filed with the Special Master even though the claimant ultimately might be found ineligible, or eligible to receive only a minimal award. To address this clear defect, claims should not be deemed "submitted" until the claimant has agreed to accept a payment from the fund. In the event that claimants who received an Advance Benefit are dissatisfied with the determination of their final award, they should be allowed to opt out of the Fund (and thereby preserve their right to bring a civil action) by returning the Advance Benefit to the Special Master.

The foregoing discussion highlights what we believe to be the most critical flaws in the Interim Final Rule. The enclosed section-by-section analysis discusses these issues in more detail, and the mark-up contains our proposal on how these and other deficiencies in the rule should be addressed. We thank you for your consideration of our views on these issues, and are available to discuss any matter on which you may have questions.

Sincerely,


Comments by:
Counsel to the Governor of the State of New York
Counsel to the Attorney General of the State of New York



NEW YORK STATE'S SECTION-BY-SECTION COMMENTARY ON THE
SEPTEMBER 11TH VICTIM COMPENSATION FUND INTERIM FINAL RULE


Subpart A General; Eligibility

§ 104.1 Purpose

No changes recommended.


§ 104.2 Eligibility definitions and requirements

§ 104.2(a) Eligible claimants: No substantive changes recommended.

§ 104.2(b) Immediate aftermath: This definition should refer to "victims" rather than "claimants," because the term "claimant" can refer to the Personal Representative of a
victim who was present at the site of a terrorist attack. In addition, a change has been
made to clarify that the term "rescue worker" is not limited to police officers, firefighters and other emergency personnel, and instead includes any individual who assisted in efforts to search for and recover victims.

§ 104.2(c) Physical harm: The definition of "physical harm" in the Interim Final Rule requires that the victim: (1) received medical treatment within 24 hours of the
attack; (2) has contemporaneous medical records; and (3) suffered a physical
disability, incapacity or disfigurement. This definition is much too narrow and
clearly violates the intent of Congress, which was to compensate all victims who
suffered any physical injury. Many injured victims were not able to seek medical
treatment within 24 hours, or were treated at an emergency triage location where no
documentation was maintained, or suffered physical injuries that do not constitute
"disability, incapacity or disfigurement". The proposed changes eliminate these
unwarranted restrictions, and instead simply require the claimant to prove that a
physical injury was incurred that required medical treatment.

§ 104.2(d) Personal Representative: No substantive changes recommended.

§ 104.2(e) Present at the site: Changes are proposed to clarify that: (1) physical harm caused by the inhalation of smoke and dust is sufficient for eligibility to file a claim; and (2) all victims physically harmed by the aircraft, fire, explosions, or building collapses are eligible, even if they were not in an area "contiguous to the crash sites".


§ 104.3 Other definitions

§ 104.3(a) Beneficiary: The definition of "beneficiary" has been amended to clarify that domestic partners and other individuals who were in long-term committed
relationships with decedents are not excluded from recovery simply because they would
not qualify for benefits from the estate of a decedent who died intestate.

§ 104.3(b) Dependent: The explanation of the term "dependent" in the Interim
Final Rule is deficient in several ways. Specifically: (1) it does not actually define the
term "dependent"; (2) it excludes individuals who were financially dependent upon
the victim but who were not listed as dependents on the victim's federal income tax
return; and (3) it excludes dependents of victims who were required to file a federal
income tax return but failed to do so before September 11th. For example, if an
unmarried victim was paying all of the nursing home costs for an elderly aunt who was
completely dependent upon the victim for financial support, the aunt may be the person
most greatly affected by the death of the victim. However, the Internal Revenue Code
may prohibit the aunt from being named as a "dependent" on the victim's federal income
tax form. If so, the aunt would not be considered a "dependent" under the Interim Final
Rule, and would not receive any benefits from the September 11th Victims Compensation
Fund ("Fund"). Similarly, if a married victim had requested an extension until
September 15 to file his or her tax return, but that return had not yet been filed,
no dependents would be included under the current regulations, even the victim's minor
children. The proposed changes correct these deficiencies.

§ 104.3(c) Spouse: The definition of "spouse" in the Interim Final Rule is also
clearly deficient. In particular: (1) the definition fails to indicate who qualifies as the "spouse" of victims who were not required to file federal income tax returns for 2000;
and (2) precludes any person from qualifying as the spouse of an individual who was
required to file a federal income tax return, but failed to do so. The definition
therefore has been amended to correct these errors.

§§ 104.3(d) & (e) Act and Victim: No substantive changes recommended.

§§ 104.3(f) & (g) Economic and noneconomic losses: Definitions of "economic loss" and "noneconomic loss" have been added, based upon similar definitions in the Air
Transportation Safety and System Stabilization Act ("ATSSSA").


§ 104.4 Personal representative

§ 104.4(a) In general: Subparagraph (a)(1) has been amended to clarify that an
individual appointed as an executor or administrator on an interim basis can qualify as
the Personal Representative. Subparagraph (a)(2) has been amended: (1) to clarify the
manner in which administrators are appointed; (2) to authorize the Special Master to
determine the Personal Representative based upon the order of priority for appointment
of administrators of an intestate estate; and (3) to authorize the victim's beneficiaries and dependents to agree upon a specific individual to serve as the Personal Representative.

§ 104.4(b) Notice to beneficiaries: This paragraph has been amended: (1) to ensure that notice is provided to potential beneficiaries at least ten weeks prior to the deadline for filing claims; (2) to clarify that the Personal Representative is not required to provide notice to unknown beneficiaries; (3) to add a provision relating to notice to beneficiaries if there is no will; and (4) to require, rather than permit, the publication of a list of claimants.

§ 104.4(c) Objections to Personal Representatives: This paragraph has been amended: (1) to shorten the time period for the filing of objections to the authority of the Personal Representative, so that objections are made prior to any substantive action by the Special Master; and (2) to add a provision governing objections by persons who did not receive notice of the filing of a claim.

§ 104.4(d) Disputes as to identity: This paragraph has been amended: (1) to expand the power of the Special Master to toll the applicable limitations period if there is a dispute over the Personal Representative; and (2) to require that awards be placed in
interest-bearing accounts pending resolution of such disputes.


§ 104.5 Foreign claims

Minor changes recommended.


§ 104.6 Amendments to rule

The Special Master should be required to notify individuals with pending claims of any
amendments to the rule.


Subpart B Filing for Compensation; Application for Advance Benefits

§ 104.21 Filing for Compensation

§ 104.21(a) Compensation form; filing: A provision has been added requiring the
Claims Evaluator to determine whether a claim has been deemed "filed" within seven
days after receipt of the forms, and requiring that the claimant be advised of that
determination.

§ 104.21(b) Eligibility form:

Subparagraph (1) has been amended to clarify that the limitation on civil actions
does not apply to civil actions permitted by § 104.61.

Subparagraph (2) has been amended to eliminate unnecessary language.

Subparagraph (3) has been amended primarily to provide a mechanism for injured
victims to prove physical harm even if they do not have medical records of their
treatment.

Subparagraph (4) remains unchanged.

Subparagraph (5) has been amended to grant the Special Master discretion to waive
the collateral source limits that otherwise would prevent the payment of Advance
Benefits. For example, the Interim Final Rule prohibits the Special Master from granting
advance benefits to an injured victim who has received collateral source compensation in
excess of the victim's "lost wages plus out-of-pocket medical expenses." However, for
an unemployed or underemployed victim, a collateral payment in excess of lost wages
and medical expenses might not be sufficient to cover the family's expenses, and may
still leave the family with substantial hardships. The Special Master should retain
discretion to address these types of situations.

Subparagraph (6) has been amended to ensure that the Special Master regularly
publishes a list of claimants on an ongoing basis.

§ 104.21(c) Compensation Forms: Minor changes recommended.

§ 104.21(d) Submission of a claim:

The Interim Final Rule terminates a victim's right to bring a civil action: (1) when
a Claims Evaluator determines that the Eligibility Form of a victim seeking Advance
Benefits is "substantially complete"; or (2) if no Advance Benefits are sought, when a
Claims Evaluator determines that both the Eligibility Form and either a Personal Injury
Compensation Form or a Death Compensation Form are "substantially complete".

Unfortunately, the Interim Final Rule does not set forth: (1) the formula that the
Special Master will use in calculating awards; (2) many of the assumptions (work-life
expectancies, consumption factors, replacement services losses, etc.) that the Special
Master will adopt; or (3) exactly how charitable contributions, workers' compensation
benefits and other payments will be treated for the purpose of determining "collateral
source" payments.

As a result, it is impossible for potential claimants to calculate the amount that
they can expect to receive from the Fund, even under the "presumed award
methodology". The Interim Final Rule currently requires claimants to waive their right to sue long before they are advised of the potential award they might receive. Even
worse, claimants found to be ineligible for any award at all will also have waived their
right to bring a civil action against the responsible tortfeasors.

Thus, under the Interim Final Rule, individuals will be induced to file claims
based upon an implied promise that they will receive full compensation for their
losses, only to learn later that they are eligible for a minuscule award, or even worse,
that they were never eligible for an award at all. This is particularly true for certain
classes of victims of the September 11th terrorist attacks -- most notably the families of
police officers, firefighters and other emergency personnel with significant
government death and pension benefits -- whose "collateral source" benefits will
substantially reduce (or even eliminate) their potential awards from the Fund.

As a result, it is essential that the Interim Final Rule be amended to provide that a claim shall not be deemed "submitted" unless and until the claimant agrees to
accept a specific award pursuant to § 104.51 of these regulations. Without such a
change, these regulations will force victims to waive their statutory right to sue,
without providing any compensation for their injuries or the deaths of their loved
ones.

§ 104.21(e) Provision of information by third parties: No recommended changes.

§ 104.21(f) Supplementation of claims: A new paragraph 104.21(f) has been added to provide that the Special Master must advise claimants if their claims are deemed to
contain insufficient information or documentation, and to list the materials needed to
complete such claims. In addition this new paragraph makes clear that claimants can
provide supplemental information at any time.

§ 104.21(g) Notice to claimant of receipt of information: A new paragraph 104.21(g)
has been added to require the Special Master to advise the claimant if information
relating to the claim has been received from third parties, to disclose such information,
and to give the claimant an opportunity to comment on the submission. Information that
the Special Master receives relating to possible fraud need not be disclosed to the
claimant.


§ 104.22 Advance Benefits

§ 104.22(a) Advance Benefits: No recommended changes.

§ 104.22(b) Credit against award: No recommended changes.

§ 104.22(c) Application for Advance Benefits: This paragraph has been amended to
clarify that the financial hardship relates to the victim or the victim's dependents and
beneficiaries, and not necessarily the "claimant", who could be a Personal
Representative.

§ 104.22(d) Eligibility for Advance Benefits: This paragraph has been amended to
eliminate the requirement that an injured claimant be hospitalized for at least one week
in order to become eligible for Advance Benefits, and instead permits such claimants to
demonstrate both: (1) financial hardship; and (2) a reasonable likelihood of eligibility for an award greater than the amount of the Advance Benefits.

§ 104.22(e) Authorization of payments: As currently drafted, this paragraph provides
that before Advance Benefits may be paid, the Personal Representative must obtain the
consent of all dependents of a decedent who does not have a surviving spouse, and must
give notice of the distribution plan to all the beneficiaries of the decedent. Both the
dependents and the beneficiaries have a potential interest in the payment of Advance
Benefits, and so both groups should consent to the payment, and should be given notice
of the distribution plan. In addition, the recommended changes: (1) grant the Special
Master authority to alter the distribution plan of the Personal Representative; and (2)
make clear that notice only be given to known dependents and beneficiaries.

§ 104.22(f) Tolling of time periods: A sentence has been added to grant the Special Master the authority to toll any limitations period with the consent of the claimant.


Subpart C Claim Intake, Assistance, and Review Procedure

§ 104.31 Procedure for claims evaluation

§ 104.31(a) Initial review: Language has been added to require the Claims Evaluator to determine whether a claim has been deemed "filed" within seven days of receipt of the required forms.

§ 104.31(b)(1) Procedure for Track A: Language has been added to clarify that
claimants may seek review of a "presumed award" determination either by submitting
written materials, or by requesting a full hearing.

§ 104.31(b)(2) Procedure for Track B:

ATSSSA provides that each claimant has the right to present evidence to the Special
Master, and that the amount of compensation should reflect "the individual
circumstances of the claim." ATSSSA, §§ 405(b)(1)(B)(ii) & 405(b)(4)(B). The
Interim Final Rule, in contrast, requires the Special Master and his designees to
follow the "presumed award methodology" in determining the awards of individuals
who seek a full hearing of their claims, and prevents awards in excess of that amount
unless the claimant has demonstrated that "extraordinary circumstances" exist.
These restrictions clearly violate the Act, which sets forth Congress' intent to
compensate victims based upon the evidence of their individualized losses.

As a result, this paragraph has been amended to make clear that the Special Master shall
calculate a "Track B" claimant's award based upon the evidence of the claimant's
individualized losses presented at the hearing. Assumptions used in the presumed award
methodology can be used in the actual award calculation if the claimant agrees to those
assumptions. In addition, changes have been proposed to: (1) make clear that claimants
may appeal a determination of ineligibility; and (2) eliminate the prohibition against
appeals from damage awards (see proposed amendment to § 104.33(h)).

§ 104.31(c) Multiple claims from the same family: This paragraph has been amended:
(1) to require the Special Master to notify any claimants whose claims are being
consolidated; and (2) to make clear that the claimants should submit separate claims on
separate forms for each victim.

§ 104.31(d) Assistance to claimants: A new paragraph 104.31(d) has been added
requiring the Special Master to provide certain assistance to claimants, including
information relating to filing deadlines, the impact of the claim on possible civil causes
of action, the confidential treatment of claims, how to access free legal services, a toll-
free number to call if the claimant has questions about the Fund or needs assistance
completing the forms, and translation services.


§ 104.32 Eligibility review:

No recommended changes.


§ 104.33 Hearing

§ 104.33(a) Supplemental submissions: No recommended changes.

§ 104.33(b) Conduct of hearings: This paragraph has been amended to make clear
that the identity and financial needs of a decedent's spouse, beneficiaries and dependents
must be considered in determining awards, as well as the financial needs of injured
victims (rather than the financial needs of the "claimant", who could be someone other
than a victim).

§ 104.33(c) Location and duration of hearings: This paragraph has been amended to
eliminate the unwarranted two-hour time limit on hearings, and instead to provide that
the length of the hearing shall be sufficient for the presentation of all evidence. In
addition, all hearings should be recorded, and the claimant should be given a free copy of
the recording or transcript.

§ 104.33(d) Witnesses, counsel and experts: Language has been added to ensure that claimants will be able to have a friend or family member of the victim attend and assist at the hearing.

§ 104.33(e) Waivers: Language has been added to provide that any waivers sought by the Special Master must relate to the claim being submitted.

§ 104.33(f) Track A: As noted above, ATSSSA requires the Special Master to award
compensation based upon "the individual circumstances of the claim." ATSSSA, §
405(b)(1)(B)(ii). The Interim Final Rule, in contrast, provides that for claimants who
choose Track A and are dissatisfied with the "presumed award", and who submit
additional evidence at a hearing, the award will not be increased unless an error occurred
in the calculation or the claimant "presents extraordinary circumstances not adequately
addressed by the presumptive award". This is a clear violation of the federal law.
Some victims may select "Track A" because they do not want to testify at a "Track B"
hearing and relive the horror that they experienced, but these same victims may have
suffered damages far greater than the amounts determined by the "presumed award
methodology." The compensation to all claimants should be based upon the
individualized evidence presented, and no claimant should have to establish
"extraordinary circumstances" to be compensated for actual damages, rather than
through a "presumed award."

§ 104.33(g) Procedural rulings: A new paragraph 104.33(g) has been added to ensure that procedural and legal errors can be appealed to the Special Master.

§ 104.33(h) Determination: Language has been added to grant the Special Master
discretion to reconsider and increase initial awards that are found to be clearly erroneous.


§ 104.34 Publication of awards:

No changes recommended.


§ 104.35 Abandonment and withdrawal of claims

§ 104.35(a) Abandonment: This paragraph has been amended to require that the
Special Master notify all known beneficiaries and dependents of the victim before
deeming any claim abandoned.

§ 104.35(b) Withdrawal:

As noted above, potential claimants cannot calculate the amount that they may receive
from the Fund, because the Interim Final Rule does not set forth the formula that the
Special Master will use in calculating awards, the assumptions that the Special Master
will adopt, or how various collateral source payments will be treated. As a result, the Interim Final Rule requires victims to waive their right to sue before knowing whether
they are eligible to receive compensation from the Fund, or how much they might
receive. A new paragraph 104.35(b) therefore has been added to allow claimants to
withdraw their claims prior to receipt of an award under § 104.51, so long as any
Advance Benefit received by a claimant has been repaid to the Fund.


§ 104.36 Confidentiality

Although Congress made clear that all victims of the September 11th attacks should be
eligible for compensation, the Interim Final Rule and the forms that the Special Master has
issued provide a nearly absolute deterrent to the submission of claims by undocumented workers and their families. For example, the "Eligibility Form and Application for Advance Benefits" requires claimants to authorize the release of any information indicating "a violation or potential violation of law . . . to any civil or criminal law enforcement authority or other appropriate agency charged with responsibility of investigating or prosecuting such a violation." Undoubtedly few, if any, undocumented aliens would be willing to submit this form to the Department of Justice -- which oversees the Immigration and Naturalization Service -- because they would be legitimately fearful that the information provided would lead to deportation proceedings or other adverse action.
This is true even if the victim killed in the attack was legally present in this country.

Because Congress has determined that the families of all individuals killed during the September 11th attacks should be compensated for the loss of their loved ones, it is inappropriate for the Special Master to adopt regulations and forms that effectively preclude recovery by an entire class of victims. As a result, a new § 104.37 has been added to authorize claimants to seek confidential treatment of their claims, and to provide that information relating to such claims may only be used for the purpose of processing and paying the claims. However, an exception has been provided authorizing the use of such information if the claim is fraudulent, if the information has been obtained through other means, or if the information is part of the public domain. In addition,
claim information may be disclosed in response to a request from a government tax or law
enforcement agency (other than the Immigration and Naturalization Service), or in response to a court subpoena.

The Department of Justice has recognized similar confidentiality concerns in other contexts, such as the enforcement of labor and antidiscrimination laws involving undocumented workers. Finally, confidentiality provision is also advisable because the claims process requires claimants to submit detailed private information, including information about the victim's health records and family situation, and this type of personal private information should be shielded from disclosure.



Subpart D Amount of Compensation for Eligible Claimants

§ 104.41 Amount of Compensation

§ 104.41(a) Factors to be considered: Language has been added clarifying the
meaning of the statutory phrases "harm to the claimant," "facts of the claim" and
"individual circumstances of the claimant."

§ 104.41(b) Collateral source reduction): No substantive changes recommended.

§ 104.41(c) Minimum award before collateral source reduction: No substantive
changes recommended.

§ 104.41(d) Present value calculation: A new paragraph 104.41(d) has been added to clarify that, to the extent an award is based upon future economic losses or future
collateral source payments, the amount of the award shall be determined based upon the
present value of such losses and payments.

§ 104.41(e) Calculation of losses: A new paragraph 104.41(e) has been added to
provide that the losses of any victim who was in a relationship of mutual
interdependence shall be calculated by the Special Master in the same manner as the
losses of a married victim.

§ 104.41(f) Formula for calculating award: A new paragraph 104.41(f) has been added to set forth how the manner in which the Special Master shall calculate compensation
awards, and to clarify that such awards generally shall be based upon the evidence
presented by the claimant and such other relevant evidence and information submitted to
the Special Master.


§ 104.42 Presumed Losses General Provisions.

Section 104.42 of the Interim Final Rule explains the meaning of the statutory phrase "to the extent recovery for such loss is allowed under applicable loss." That explanation has been moved to § 104.3(f).

A new § 104.42 has now been added, to govern the "presumed loss methodology". In
particular:

New paragraph 104.42(a) requires the Special Master to publish the assumptions and
methodology used in determining presumed economic and noneconomic losses. Those presumed
amounts may be used solely to assist potential claimants in deciding whether to file a claim, and in determining awards for individuals who wish to be compensated based upon the presumed losses.

New paragraph 104.42(b) makes clear that the compensation of all other claimants shall be
based upon their individual circumstances, and the presumed losses shall not be used to limit such compensation in any way, so long as the claimant submits sufficient evidence to establish economic or noneconomic losses in excess of the presumed amounts.

New paragraph 104.42(c) authorizes claimants to submit evidence that the presumed loss
methodology and assumptions should not be applied to their claims.


§ 104.43 Determination of presumed economic loss for decedents

§ 104.43(a) Loss of earnings or other benefits related to employment: This paragraph has been amended: (1) to clarify that the Special Master shall consider whether the decedent is survived by family members; (2) to permit the calculation of presumed losses
for victims whose annual incomes were above the 98th percentile of all wage earners in
the United States; and (3) to provide that if the decedent's actual income was less than
his or her expected earning power, then the Special Master may use other factors to
determine the decedent's economic loss, including but not limited to the decedent's
career plans, earning potential, and cost of replacement services.

§ 104.43(b) Medical expense loss: Language has been added to clarify that the
amount of medical expense loss shall include amounts that the victim paid for health
insurance covering any portion of the total medical expenses incurred.

§ 104.43(c) Loss due to death/burial costs: The language in current paragraph
104.43(c), which governed replacement services loss, has been moved to paragraph
104.43(a). Paragraphs 104.43(d) and 104.43(e) have been relettered as paragraphs
104.43(c) and 104.43(d), respectively. New paragraph 104.43(c) has been amended to
make clear that death/burial costs should include amounts that the victim paid for any
insurance covering any portion of the total death/burial expenses incurred.

§ 104.43(d) Loss of business or employment opportunities: No substantive changes
recommended.


§ 104.44 Determination of presumed noneconomic losses for decedents:

The presumed noneconomic losses for decedents are too low. ATSSSA specifically provides
that noneconomic losses include "physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to
reputation, and all other nonpecuniary losses of any kind or nature." While it is extremely difficult to place a dollar amount on such losses, awards of $250,000 for decedents are simply inadequate.
The commentary that accompanied the Interim Final Rule indicates that the $250,000 award is
derived from "the amounts received under existing federal programs by public safety officers who are killed while on duty, or members of our military who are killed in the line of duty while serving our nation," but those statutory awards are not intended to provide full compensation for all non-
economic losses. Accordingly, the presumed noneconomic losses should be increased to at least $500,000, plus at least an additional $100,000 for the spouse and each dependent of the deceased victim.


§ 104.45 Determination of presumed economic loss for injured claimants

§ 104.45(a) Loss of earnings or other benefits related to employment: Subparagraph (3) of this paragraph has been amended to include language governing temporary
disabilities.

§ 104.45(b) Medical expense loss: Language has been added to ensure that the amount of medical expense loss includes any amounts that the victim is expected to pay for
health insurance covering the total medical expenses incurred.

§ 104.44(c) Loss of business or employment opportunities: The language in current
paragraph 104.44(c), which governed replacement services loss, has been moved to
paragraph 104.43(a). Paragraph 104.44(d) has been relettered as paragraph 104.44(c),
but no other changes have been made to that paragraph.


§ 104.46 Determination of presumed noneconomic losses for injured claimants:

No recommended changes.


§ 104.47 Collateral sources

§ 104.47(a) Payments that constitute collateral source compensation: This paragraph has been amended to clarify that payments by governmental charities, as well as
payments of funds donated by the public to governmental entities for distribution for
charitable purposes, shall be treated in the same manner as other charitable contributions,
and should not be counted as "collateral source" payments. For example, many
individuals throughout the United States made donations directly to the State of New
York rather than to a charitable organization, and the State is providing those donations
directly to the families of the victims of the September 11th attacks. New York State
merely serves as a conduit for the payments, which essentially are charitable donations
from the American people to those most greatly impacted by the terrorist attacks, and
thus these awards should be treated like all other charitable payments.

§ 104.47(b) Payments that do not constitute collateral source compensation:

For the reasons set forth in our November 1, 2001 submission, charitable
contributions should not be counted as collateral source payments. Unfortunately,
although the Interim Final Rule provides that charitable donations distributed to victims
and their families "do not constitute collateral source compensation," subparagraph
104.47(b)(2) also provides that "the Special Master may determine that funds provided
to victims or their families through a private charitable entity constitute, in substance, a [collateral source] payment." This additional language creates significant confusion, making it difficult: (1) for charitable organizations to determine whether and when to make charitable payments; (2) for victims and their families to decide whether to seek and/or accept charitable donations; and (3) for victims and their families to determine
whether to file claims, because charitable awards may greatly diminish the
compensation they receive from the fund. This language must be eliminated, so that
the regulations make absolutely clear that charitable contributions are not collateral source payments.

Paragraph 104.47(b) is also amended to provide that the following do not constitute
collateral source payments: (1) payments that are not required to be made by law or
contract, (such as voluntary monetary contributions made by friends and family); (2)
payments that depend upon a contingent future event (such as possible future college
scholarships); and (3) payments by a collateral source payor with a right to a lien against
an award from the Fund or any subrogation rights.

§ 104.47(c) Application of collateral source reduction:

A new paragraph 104.47(c) has been added to provide that, if the victim receives a
collateral source payment for an expense not covered by the Fund, that collateral source
payment shall not be used to reduce the award under the Fund. For example, if a
claimant had insurance coverage for personal items destroyed in the attack, and therefore
does not seek compensation for those items in his or her claim, then the award from the
Fund should not be reduced by the amount of that insurance coverage. Otherwise, the
claimant's overall compensation will be reduced to below the amount of the actual
losses.

In particular, most life insurance policies and employer death benefits are
intended to compensate victims for future lost income and to provide funding for
future expenses, and are not intended to provide compensation for noneconomic
losses such as pain and suffering. As a result, noneconomic losses should not be
reduced by collateral source payments unless the Special Master specifically finds that
collateral source payments were made for the purpose of compensating the claimant
for such noneconomic losses.

This paragraph has also been amended to provide: (1) that the amount of any
collateral source payments should be reduced by past or future insurance premiums that
produce the collateral source payments; and (2) if the collateral source payment may be
terminated in the future due to some contingent event (e.g., the termination of Social
Security survivor's benefits upon the remarriage of the survivor), then the Special Master
shall not include in the collateral source calculation any payments which would occur
after the average expected date of such future contingent event. If the average expected
date of such future contingent event cannot be calculated, then the Special Master may
not include such payments in the calculation of the collateral source reduction.


Subpart E Payment of claims

§ 104.51 Payments to eligible individuals

Section 104.51 has been amended to require the Special Master to notify the claimant of the
proposed amount of compensation in writing by overnight mail, and to give the claimant 7 days to
decide whether or not to agree to accept the award. If the claimant agrees to receive the award, the
claim is deemed submitted, the claimant is deemed to have waived any right to file a civil action on
behalf of the victim, and the Special Master must authorize payment within 20 days. If the claimant
declines the award, then the claimant must pay back any Advance Benefits previously received, and
the Personal Representative must simultaneously provide notice of such declination to all known beneficiaries and dependents of the victim.


§ 104.52 Distribution of awards

Section 104.52 has been amended to require that the distribution plan provided by the Personal
Representative before payment is authorized must include the amounts to be paid to each individual,
the manner of payment, and what protections will be implemented to ensure that funds remain
available in the future for use by or on behalf of minors or incompetent persons receiving benefits
from the award. In addition, this section has been amended to give the Special Master discretion to
direct the Personal Representative to distribute funds to the victim's spouse, children, relatives,
beneficiaries or other dependents, and take actions ensuring that all or any portion of the award remains available in the future for minor or incompetent beneficiaries.


§ 104.53 Supplemental Claims

A new § 104.53 has been added to provide that any injured claimant may submit a
supplemental claim for any additional physical harm incurred or discovered after receipt of an award under § 104.51, except that no compensation may be provided if the claimant knew or should have known of the physical harm prior to the receipt of the award.


Subpart F Limitations

§ 104.61 Limitation on civil actions

§ 104.61(a) General: This paragraph has been amended to make clear that victims and their families retain the right to sue participants in the terrorist conspiracy that resulted in the September 11th attacks.

§ 104.61(b) Pending actions: No changes recommended.

§ 104.61(c) Exception: A new paragraph 104.62(c) has been added to make clear that claimants may bring or continue civil actions: (1) on behalf of a victim other than the victim on whose behalf the claim has been filed; (2) on behalf of a victim who has been
determined not to be eligible for an award from the Fund; (3) for damages other than
personal injuries or wrongful death; (4) to recover collateral source obligations; or (5)
against any person who was or is a knowing participant in any conspiracy to hijack any
aircraft or commit any terrorist act.


§ 104.62 Time limit on filing claims:

No changes recommended.


§ 104.63 Subrogation:

Minor change recommended.


Subpart G Measures to protect the integrity of the compensation program

§ 104.71 Procedures to prevent and detect fraud

§ 104.71(a) Review of claims: This paragraph has been amended to provide that the Special Master must implement procedures: (1) to provide notice of the submission of
claims, including notice to the employers of claimants seeking compensation for
physical harm; and (2) to establish procedures for the reporting allegations of fraud to the Special Master.

§ 104.71(b) Quality control: No changes recommended.

§ 104.71(c) False or fraudulent claims: No changes recommended.


NEW YORK STATE'S PROPOSED CHANGES TO THE
SEPTEMBER 11TH VICTIM COMPENSATION FUND INTERIM FINAL RULE


Part 104 of chapter I of Title 28 of the Code of Federal Regulations is added to
read as follows:

PART 104--SEPTEMBER 11TH VICTIM COMPENSATION FUND OF 2001

Subpart A--General; Eligibility

104.1 Purpose.
104.2 Eligibility definitions and requirements.
104.3 Other definitions.
104.4 Personal Representative.
104.5 Foreign claims.
104.6 Amendments to this rule.

Subpart B--Filing for Compensation; Application for Advance Benefits

104.21 Filing for compensation.
104.22 Advance benefits.

Subpart C--Claim Intake, Assistance, and Review Procedures

104.31 Procedure for claims evaluation.
104.32 Eligibility review.
104.33 Hearing.
104.34 Publication of awards.
104.35 Claims deemed abandoned by claimants.
104.36 Confidentiality

Subpart D--Amount of Compensation for Eligible Claimants

104.41 Amount of compensation.
104.42 Applicable state law Presumed Losses - General Provisions.
104.43 Determination of presumed economic loss for decedents.
104.44 Determination of presumed noneconomic losses for decedents.
104.45 Determination of presumed economic loss for claimants who suffered physical
harm.
104.46 Determination of presumed noneconomic losses for claimants who suffered
physical harm.
104.47 Collateral sources.

Subpart E--Payment of Claims

104.51 Payments to eligible individuals.
104.52 Distribution of award to decedent's beneficiaries.
104.53 Supplemental claims

Subpart F--Limitations

104.61 Limitation on civil actions.
104.62 Time limit on filing claims.
104.63 Subrogation.

Subpart G--Measures to Protect the Integrity of the Compensation Program

104.71 Procedures to prevent and detect fraud.

Authority: Title IV of Pub. L. 107-42, 115 Stat. 230, 49 U.S.C. 40101 note.

Subpart A--General; Eligibility

§ 104.1 Purpose.

This part implements the provisions of the September 11th Victim Compensation Fund of
2001, Title IV of Public Law 107-42, 115 Stat. 230 (Air Transportation Safety and System
Stabilization Act) to provide compensation to eligible individuals who were physically injured as a result of the terrorist-related aircraft crashes of September 11, 2001, and to the "personal representatives" of those who were killed as a result of the crashes. All compensation provided through the Fund will be on account of personal physical injuries or death.


§ 104.2 Eligibility definitions and requirements.

(a) Eligible claimants. The term "eligible claimants" means:

(1) Individuals present at the World Trade Center, Pentagon, or Shanksville,
Pennsylvania site at the time of or in the immediate aftermath of the crashes and who
suffered physical harm, as defined herein, as a direct result of the terrorist-related aircraft crashes;

(2) The Personal Representatives of deceased individuals aboard American Airlines
flights 11 or 77 and United Airlines flights 93 or 175; and

(3) The Personal Representatives of individuals who were present at the World
Trade Center, Pentagon, or Shanksville, Pennsylvania site at the time of or in the
immediate aftermath of the crashes and who died as a direct result of the terrorist-related
aircraft crash.

(4) The term eligible claimants does not include any individual or representative of
an individual who is identified to have been a participant or conspirator in the
terrorist-related crashes of September 11.

(b) Immediate aftermath. The term "immediate aftermath" of the crashes shall mean, for purposes of all claimants victims other than rescue workers, the period of time from the crashes until 12 hours after the crashes. With respect to rescue workers any individual who assisted in efforts to search for and recover victims, the immediate aftermath shall include the period from the crashes until 96 hours after the crashes.

(c) Physical harm.

(1) The term "physical harm" shall mean a any physical injury to the body that was
treated by a medical professional within 24 hours of the injury having been sustained or
within 24 hours of rescue; and

(i) Required hospitalization as an in-patient for at least 24 hours; or

(ii) Caused, either temporarily or permanently, partial or total physical
disability, incapacity or disfigurement.

(2) In every case not involving death, the physical injury must be verified by
contemporaneous medical records created by or at the direction of the medical
professional who provided the medical care; provided, however, that if no medical
records of the treatment are available, then the physical injury may be verified by an
affidavit, declaration, testimony or other sworn statement (or unsworn statement
complying with 28 U.S.C. § 1746) from the claimant or other person with personal
knowledge of the treatment.

(d) Personal Representative. The term "Personal Representative" shall mean the person determined to be the Personal Representative under § 104.4 of this part.

(e) Present at the site. The term "present at the site" (i.e., the World Trade Center, Pentagon, or Shanksville, Pennsylvania site) shall mean physically present at the time of the crashes or in the immediate aftermath:

(1) In the buildings or portions of buildings that were destroyed as a result of the
airplane crashes; or

(2) In any area contiguous to the crash sites that the Special Master determines was sufficiently close to the site that there was a demonstrable risk of physical harm resulting from the impact of the aircraft or any subsequent fire, explosions, or building collapses (generally, the immediate area in which the impact occurred, fire occurred, portions of buildings fell, or debris, dust or smoke fell upon and injured persons).


§ 104.3 Other definitions.

(a) Beneficiary. The term "beneficiary" shall mean:

(1) a person entitled under the laws of the decedent's domicile to receive payments or benefits from the estate of or on behalf of the decedent on whose behalf the claim to the Fund was filed; and

(2) a person who was in a relationship of mutual interdependence with the decedent
on whose behalf the claim to the Fund was filed, but who was not eligible to be reported
as a spouse for federal income tax purposes and would not be considered a beneficiary
under subparagraph one of this paragraph. Determinations of beneficiaries pursuant to
this subparagraph shall be made based upon the totality of the circumstances, considering
factors such as common living arrangements, common ownership of property, emotional
commitment, financial commitment, shared budgeting, longevity of the relationship, and
written or oral testimony from individuals with personal knowledge of the relationship.

(b) Dependents. The term "dependent" shall mean those persons who were financially dependent on the victim on September 11, 2001. The Special Master shall identify as dependents:

(1) those persons so identified as dependents by the victim on his or her federal income tax return for the year 2000 unless:, as well as any other person who the claimant demonstrates was financially dependent upon such victim;

(1) The claimant demonstrates that a (2) any minor child of the victim was born or adopted on or after January 1, 2001;

(2) Another person (3) any other person who became a dependent in accordance with then-applicable law on or after January 1, 2001; or

(3) The (4) those persons who were financially dependent on any victim was not required by law to who did not file a federal personal income tax return for the year 2000.

(c) Spouse. The Special Master shall identify as the "spouse" of a victim:

(1) the person reported as spouse on the victim's federal income tax return for the year 2000 unless the victim was married or divorced in accordance with applicable law
on or after January 1, 2001; or :

(2) the person to whom the victim was lawfully married on September 11, 2001, if
the (1) The victim was married or divorced in accordance with applicable state law on or after January 1, 2001; or (2) The victim was not required by law to or did not file a federal income tax return for the year 2000.

(d) The Act. The "Act", as used in this part, shall mean Public Law 107-42, 115 Stat. 230 ("Air Transportation Safety and System Stabilization Act"), 49 U.S.C. 40101 note.

(e) Victim. The term "victim" shall mean an eligible injured claimant or a decedent on whose behalf a claim is brought by an eligible Personal Representative.

(f) Economic Loss. The term "economic loss" means any pecuniary loss resulting from harm, including but not limited to the loss of earnings or other benefits related to employment, medical expense loss, replacement services loss, loss due to death, burial or funeral costs, loss of guidance and counseling, and loss of business or employment opportunities; provided, however, that claimants will receive compensation only for those categories or types of economic losses that would be compensable under the state law that would be applicable to any tort claims brought by or on behalf of the victim.

(g) Noneconomic losses. The term "noneconomic losses" means losses for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature.


§ 104.4 Personal Representative.

(a) In general. The Personal Representative shall be:

(1) An individual appointed by a court of competent jurisdiction as the Personal
Representative of the decedent or as the executor or administrator of the decedent's will
or estate, including individuals appointed on a temporary or interim basis.

(2) In the event that no Personal Representative or executor or administrator has
been appointed by any court of competent jurisdiction, and such issue is not the subject
of pending litigation or other dispute, the Special Master may, in his discretion,
determine that the Personal Representative for purposes of compensation by the Fund is
the person named by the decedent in the decedent's will as the executor or administrator of the decedent's estate. In the event no will exists, and no administrator has been appointed for the decedent's estate, the Special Master may, in his discretion, determine that the Personal Representative for purposes of compensation by the Fund is the first qualified person in the line of succession order of priority for appointment as administrator of an intestate estate established by the laws of the decedent's domicile governing intestacy; provided, however, that nothing herein shall prevent the beneficiaries and dependents of the decedent from agreeing, in writing, to the designation of a specific individual as the Personal Representative, and such agreement
shall be binding upon the Special Master.

(b) Notice to beneficiaries. Any purported Personal Representative must, before filing an Eligibility Form and no later than October 1, 2003, provide written notice of the claim (including a
designated portion of the Eligibility Form) to: (1) the immediate family of the decedent (including, but not limited to, the decedent's spouse, former spouses, children, other dependents, and parents),
(2) to the executor, administrator, and known beneficiaries of the decedent's will, (3) if there is nowill, to any known individual who would be entitled to share in the estate under applicable state law, and (4) to any other persons who may reasonably be expected to assert an interest in an award or to have a cause of action to recover damages relating to the wrongful death of the decedent.
Personal delivery or transmission by certified mail, return receipt requested, shall be deemed
sufficient notice under this provision. The claim forms shall require that the purported Personal
Representative certify that such notice (or other notice that the Special Master deems appropriate) has been given. In addition, as provided in § 104.21(b)(5)(6) of this part, the Special Master may shall regularly publish a list of individuals who have filed Eligibility Forms and the names of the victims for whom compensation is sought, but shall not publish the content of any such form.

(c) Objections to Personal Representatives. Objections to the authority of an individual to
file as the Personal Representative of a decedent may be filed with the Special Master by parties
who assert a financial interest in the award up to 30 14 days following the filing of an Eligibility Form by the Personal Representative; provided, however, that if the individual filing the objection did not receive written notice of the claim pursuant to § 104.4(b), then such objection may be filed with the Special Master up to 14 days following the earlier of: (1) the date on which such individual had actual knowledge that the claim had been filed; or (2) the date on which the Special Master
publishes a list pursuant to § 104.21(b)(6) which contains the name of the Personal Representative whose authority is being challenged and the name of the victim for whom compensation is sought. If timely filed, such objections shall be treated as evidence of a "dispute" pursuant to paragraph (d) of this section.

(d) Disputes as to identity. The Special Master shall not be required to arbitrate, litigate, or otherwise resolve any dispute as to the identity of the Personal Representative. In the event of a dispute over the appropriate Personal Representative, the Special Master may suspend adjudication of the claim and toll the applicable limitations periods or, if sufficient information is provided, calculate the appropriate award and authorize payment, but place any payment in an interest-bearing
escrow account any payment until the dispute is resolved either by agreement of the disputing parties or by a court of competent jurisdiction. Alternatively, the disputing parties may agree in writing to the identity of a Personal Representative to act on their behalf, who may seek and accept payment from the Fund while the disputing parties work to settle their dispute.


§ 104.5 Foreign claims.

In the case of claims brought by or on behalf of foreign citizens or residents, the Special Master may alter the requirements for documentation or information set forth herein to the extent such materials are unavailable to such foreign claimants.


§ 104.6 Amendments to this rule.

In the event that amendments are subsequently made to any section of this Part, claimants the Special Master shall provide notice of such amendments to all individuals with pending claims. Claimants are entitled to elect, at their discretion, to have their claims processed in accordance with the provisions that were in effect at the time that their claims were submitted under §104.21(d).


Subpart B--Filing for Compensation; Application for Advance Benefits

§ 104.21 Filing for compensation.

(a) Compensation form; "filing." Except for applications for Advance Benefits pursuant to § 104.22, no claim may be considered until the claimant has submitted both an "Eligibility Form" and either a "Personal Injury Compensation Form" or a "Death Compensation Form." A claim shall be
deemed "filed" for purposes of section 405(b)(3) of the Act (providing that the Special Master shall
issue a determination not later than 120 days after the date on which a
claim is filed), and for any time periods in this part, when a Claims Evaluator determines that both
the Eligibility Form and either a Personal Injury Compensation Form or a Death Compensation
Form are substantially complete. Provided, however, that if a claimant files an
Eligibility Form requesting Advance Benefits pursuant to § 104.22 of this part without filing either a
"Personal Injury Compensation Form"or a "Death Compensation Form," the claim shall be deemed
"filed" when the Claims Evaluator determines that the Eligibility Form is substantially complete,
but the time period for determination and any time periods in this part shall be stayed or tolled as
described in § 104.22(g) of this part. The Claims Evaluator shall determine whether a claim has been deemed "filed" within seven days after receipt of the forms from the claimant, and shall advise the claimant of that determination by overnight mail.

(b) Eligibility Form. The Special Master shall develop an Eligibility Form that will require the claimant to provide information necessary for determining the claimant's eligibility to recover from the Fund.

(1) The Eligibility Form may require that the claimant certify that he or she has
dismissed any pending lawsuit seeking damages for personal injuries to or wrongful
death of the victim as a result of the terrorist-related airplane crashes of September 11, 2001 (except for actions seeking collateral source benefits permitted by § 104.61(c) of this part) within 90 days of the effective date of this part pursuant to section 405(c)(3)(B)(ii) of the Act and that there is no pending lawsuit brought by a dependent, spouse, or beneficiary of the victim seeking such damages, except for actions permitted by § 104.61(c) of this part.

(2) The Special Master may require as part of the notice requirement pursuant to §
104.4(b) that the claimant provide copies of a designated portion of the Eligibility Form
to the immediate family of the decedent (including, but not limited to, the spouse, former spouses, children, other dependents, and parents), to the executor, administrator, and beneficiaries of the decedent's will, and to any other persons who may reasonably be
expected to assert an interest in an award or to have a cause of action to recover damages
relating to the wrongful death of the decedent individuals described in such section.

(3) The Eligibility Form may require claimants to provide the following proof:

(i) Proof of death: Death certificate or similar official documentation;

(ii) Proof of presence at site: Documentation sufficient to establish presence at one
of the crash sites, which may include, without limitation, a death certificate,
records of employment, contemporaneous medical records, contemporaneous
records of federal, state, city or local government, an affidavit or , declaration of the decedent's or injured claimant's employer or other sworn statement (or unsworn statement complying with 28 U.S.C. 1746) of the decedent's or injured claimant's
employer regarding the presence of the victim;

(iii) Proof of death on board aircraft: Death certificate or records of American or
United Airlines or other sufficient official documentation;

(iv) Proof of physical harm: Contemporaneous (A) medical records of hospitals, clinics, physicians, licensed medical personnel, or registries maintained by federal, state, or local government, and records of all continuing medical treatment
regarding the physical harm to the victim; or (B), if no medical records of the
treatment are available, then an affidavit, declaration or other sworn statement (or
unsworn statement complying with 28 U.S.C. 1746) of the injured claimant
regarding the physical harm to the victim;

(v) Personal Representative: Copies of relevant legal documentation, including
court orders; letters testamentary or similar documentation; proof of the purported
Personal Representative's relationship to the decedent; copies of wills, trusts, or
other testamentary documents; and information regarding other possible
beneficiaries as requested by the Eligibility Form;

(vi) Any other information that the Special Master deems necessary to determine
the claimant's eligibility.

(4) The Special Master may also require waivers, consents, or authorizations from
claimants to obtain directly from third parties tax returns, medical information,
employment information, or other information that the Special Master deems relevant in
determining the claimant's eligibility or award, and may request an opportunity to review
originals of documents submitted in connection with the Fund.

(5) Application for Advance Benefits: The Eligibility Form shall include a section
allowing claimants to indicate that they wish to apply for Advance Benefits. Claimants
who apply for such Advance Benefits must certify on that Form that they have not yet
received $450,000 in collateral source compensation if they are bringing a claim on
behalf of a deceased victim with a spouse or dependent, $250,000 in collateral source
compensation if they are bringing a claim on behalf of a deceased victim who was single
with no dependents, or an amount in excess of their lost wages plus out-of-pocket
medical expenses if they are an injured claimant; provided, however, that the Special
Master may waive these requirements based upon an adequate showing from the
claimant. All such claimants also must state on the Form facts establishing financial
hardship that would justify a determination that they are in need of Advance Benefits.

(6) The Special Master may shall regularly publish a list of individuals who have filed Eligibility Forms and the names of the victims for whom compensation is sought, but shall not publish the content of

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