dojN002625.xml

dojN002625.xml

born-digital

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2002-01-18

New York, NY 10007





S A F E
January 18,2002 H O R I Z O N


VIA ELECTRONIC MAIL victimcomp.comments@usdoj.gov,

FACSIMILE (301)519-5956 and U.S. MAIL


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: Interim Final Regulations With Request For Comments
September 11th Victim Compensation Fund of 2001


Dear Mr. Zwick:

Safe Horizon is responding to the Department of Justice's (the "Department")
request for comments on the interim final regulations issued on December 21,2001
("the Regulations"), addressing implementation of the "September 11 Victim
Compensation Fund of 2001" (the "Fund"). As the country's leading victim services
organization, and as one of the principal charitable agencies providing services and
assistance to victims of the September 11,2001 terrorist attacks, Safe Horizon directs
its comments toward helping to ensure that the Fund is administered in a manner that
most effectively and fairly serves victims and their families. We are joined in these
comments by the National Center for Victims of Crime and the Hispanic Federation.

Since September 14,2001, Safe Horizon has been offering financial assistance
and other services to the victims of the September 11 tragedy. As of January 17,
2002, we have distributed $119,288,016.84 in assistance to 29,513 victims of the
disaster. Based on Safe Horizon's longstanding experience in serving victims of
crime, and on our recent experience serving victims of the September 11 terrorist
attack, we submit the following comments in response to the Department's request for
comments to the Regulations:


I. Claimant eligibility

a. The Regulations should specify that all individuals who suffered loss can recover
a claim.

1. Claimant should be eligible regardless of their immigration status.

The Immigration and Naturalization Service(the "INS") has stated that families in those
circumstances should be treated with compassion and their cases treated with discretion.
Families of Victims of Terrorist Attacks, INS News Release (Oct.10,2001). As the INS has
recognized, families of the September 11 terrorist attacks whose immigrant or non-immigrant
status was dependent on the Victim's status should not be concerned about facing immediate
removal from the United States. Id. By contrast, the Regulations are silent and the program
information is ambiguous as to undocumented individuals' eligibility. Consequently, it would be
entirely reasonable for those individuals to assume that they are not eligible to receive
compensation.
In order to ensure that undocumented individuals will file claims with the fund, the
Regulations, as well as program information and application forms, should make abundantly
clear that they are eligible and will not be penalized for applying. Therefore, the Regulations
should explicitly state that immigrants who meet the eligibility requirements may recover from
the Fund regardless of their immigration status. They should also affirmatively assure applicants
that information gathered through the application process will not be released to the INS and
may not be used against a claimant in any immigration proceeding.

In addition, program information and application forms should reflect this policy. As
currently drafted, program materials may discourage otherwise eligible undocumented
immigrants from applying. For Example, it appears that a social security number is required in
order to submit a claim form. The application form should clearly state that a social security
number is not required and should specify alternate types of documentation that will be accepted.
The program materials should also indicate the multiple languages in which applications and
supporting materials are available, and these materials should be readily available to claimants.

2. Regulations should specify that non-traditional relationships will be recognized
as families.

As currently drafted, the Regulations do not explicitly protect an unmarried life-partner's
right to file a claim with the Fund. By deferring to state law in determining the beneficiaries and
personal representatives of the deceased victims, the Regulations may effectively preclude
assistance for same-sex and other non-traditional life partners, because those relationships are
generally not recognized under state law. The Regulations should specify that these relationships




will be recognized for the purposes of determining who is a dependant, a beneficiary, and a
personal representative, for purposes of administering the Fund.

b. The standard for "physical injury" will preclude claims by many individuals
who suffered direct harm.
The Regulations currently limit recovery only to those who suffered physical injury,
which is defined as "partial or total disability, incapacity or disfigurement." 28 C.F.R.
104.2(c)(1)(ii)(2001). On its face, this determination seems to have the perverse effect of
penalizing those persons who were injured and suffered as a result, but were fortunate enough to
recover. The Regulations should be amended so that those who suffered serious physical injury
that can be documented, are eligible for recovery.

Additionally, we reiterate our recommendation that the term "physical harm" should be
construed to cover psychological as well as discernable physical harm. Many of those who were
injured may suffer tangible loss even if they do not have a discernable physical injury, and
should be eligible. For example, someone who worked in the World Trade Center and escaped
without physical injury may nevertheless have experienced psychological distress that may have
produced longstanding damage, including disability. The fact that these victims were lucky
enough to have escaped without observable physical harm should not render them ineligible for
recovery. In order to ensure that only those who suffered measurable injury can recover, the
Regulations could impose some additional requirement. For example, the class of eligible
claimants could be reasonably limited by requiring eligible claimants to establish that they were
physically in the vicinity of the World Trade Center and were rendered unable to work or engage
in a major life activity as a result.

Furthermore, requiring the claimants to have received medical care within 24 hours of the
attack is overly restrictive and unrealistic. 28 C.F.R. 104.2(C)(1)(2001). This requirement will
exclude many individuals that the statute clearly contemplates as eligible claimants. For a
significant amount of time after the attacks, many of those injured were in a state of shock and
did not realize that they required medical attention. With the public transportation and
telecommunication systems severely disrupted, the primary focus of the most surviving victims
was
to escape the affected area and reach their families. Many victims were required to walk miles to
reach their homes, and were simply too exhausted, physically and mentally, to navigate the
disrupted transportation system and seek immediate medical attention. It is contrary to the
language and the spirit of the statute to exclude these victims from recovery.




II. Nature and Amount of compensation

a. The definition of "Dependents" should clarify that all those who were actually
dependent on the victim will be considered to be beneficiaries in calculating non-
economic loss.

The Regulations should adopt the same inclusive approach to calculating non-economic
loss that we recommended be applied when determining eligibility. Currently, the Regulations
set $250,000, plus an additional $50,000 for a Spouse and for each dependent, as the presumed
amount of non-economic loss. 28 CFR 104.44 (2001). This language is unclear as to who will
be considered a dependent, but could be construed to limit the term to those claimed as
"dependents" on the victims' income tax returns for the 2000 tax year. However, our
experiences with family members of deceased victims has revealed that in many cases the
deceased victims provided crucial financial assistance to family members other than their spouse
and children. These include family members who are not U.S. citizens or residents, parents
whose children helped support them, other relatives who relied on decedents and those in same-
sex partnerships. Applicable tax laws may preclude many of these family members from being
claimed as "dependents" on the deceased victims' tax returns even though they received
substantial financial aid from the deceased victims. To accurately establish a level of
compensation that reflects all family members substantially affected by the attacks, these family
members should be included as "dependents" in determining the amount of non-economic loss.

b. The Regulations should clarify the circumstances, if any, in which charitable
contributions will be considered in determining what is a "collateral source".
Although the Regulations state that charitable donations distributed to beneficiaries of
deceased victims do not constitute collateral source compensation reducing the amount of award
from the Fund, 28 CFR 104.47(b)(2)(2001), it also authorizes the Special Master to determine
that such charitable donations can constitute collateral source compensation. Id. This ambiguity
should be clarified. As Safe Horizon stated in its previously submitted comments, it opposes
treating charitable contributions as collateral sources. Among other problems, such a
determination would negatively affect charitable giving by removing the incentive for donors to
provide assistance. Nevertheless, if the Department authorizes the Special Master to treat
charitable contributions as collateral sources in some situations, the Regulations should clearly
identify what these situations are.
c. Only collateral sources actually received by the claimants should reduce
payments from the Fund.

The Regulations require that payments from the Fund be reduced by "all collateral source
compensation." 28 C.F.R. 104.47(a)(2001). The Regulations should clarify that only those
collateral source payments designated to be paid to eligible Fund claimants will reduce payments
from the Fund. For example, payments made to beneficiaries other than eligible Fund claimants,




such as organizations or entities, (e.g., pursuant to a corporate key-person life insurance policy)
should not reduce Fund payments made to eligible Fund Claimants.

d. The procedure must promote consistency and equity.

As a final matter, a procedural mechanism should be built into the process to ensure that
similarly situated claimants receive comparable payments. For example, rather than one hearing
officer conducting the proceeding, a panel comprised of rotating hearing officers could conduct
the proceedings. A separate review board should periodically review the decisions to make
certain that there is no substantial divergence in payments to similarly situated claimants.

Safe Horizon would be pleased to respond to any additional questions the Department has
in connection with establishing the Fund, or to provide more detail about the responses outlined
above. Thank you in advance for your consideration.

Respectfully submitted,

Comments by:
Safe Horizon
New York, NY

2002-01-18