Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource Department of Justice Emails Description An account of the resource The Department of Justice received more than 11,000 e-mails in response to the agency's public solicitation for comments upon its plans to distribute the September 11th Victim Compensation Fund of 2001 established by Congress to benefit the victims of September 11 and their families. These e-mails have been organized here by date. September 11 Email September 11 Email: Body The basic content, as unstructured text; sometimes containing a signature block at the end. American Bar Association Task Force on Terrorism and the Law Comments on the Drafting of Regulations Regarding the "September 11th Victim's Compensation Fund of 2001 What follows are focused remarks of general concern and points of recommended clarification to facilitate the drafting of regulations pertaining to the Victim's Compensation Fund. Unless otherwise noted, the comments below have not been adopted as the policy of the American Bar Association or nay of its entities and should be considered solely as observations which the Attorney General of the United States, the Department of Justice and the Special Master may wish to consider in the drafting of regulations. I. General Principles It should be the goal of the regulations required pursuant to the September 11th Compensation Act of 2001, to establish a compensation program that is simple, fair, predictable, cooperative and with other compensation efforts and expeditious. Simplicity will require that the process be comprehensible to and useable by victims and their representatives. Fairness will demand that similarly situated victims and their representative. Fairness will demand that similarly situated victims be treated similarly, that victims will be awarded reasonable compensation and that all potential claimants will have clear guidance regarding their eligibility. Predictability will require that appropriate ranges of recovery be fixed in advance of adjudication and potential claimants have a relatively clear notion of their prospects. While awards should not be wildly different, establishing damages in advance of any evidence relative to an individual claim does not assure a just award. Coordination of all potential compensation programs would be helpful if designed to address the short term and immediate needs of families. Expedition will require that the process provide relief to eligible claimants as quickly as possible in light of the demands of a massive program that may face more than 15,000 claims. Public confidence in the fairness and equity of the Claim Fund Program is essential to its success. While the Special Master must be empowered to make judgments about many variables impacting individual claims, the process must be viewed as one giving the citizens a certainty of recovery and reasonable awards consistent with the evidence that will be unique to each claimant. To that end, the regulations should outline the type of evidence that will be taken and used by each hearing officer in evaluating the claims. The drafters of the regulations should consider looking to other concepts of justice beyond the norms of recognized tort law. Many scholars would advocate consideration be given to compensation standards that maintain horizontal equity and fairness. The fund concept is a dramatic departure from the methodology for the treatment of mass tort and disaster victims. Hence, a core decision by the regulation drafter will be to define the role of the traditional tort system and its individualized analysis of elements of economic and non-economic damages in comparison with the concern for horizontal equity in the claiming process amongst similarly situated victims. Damages are inevitably unique to the individual claimant. The overall guiding principles in all instances should be make whole, to the greatest extent possible, those affected and to recognize basic and special needs to assure that the victims and their families have adequate access to shelter, food, healthcare, job training, job placement and survivors' children's access to higher education. II. Administration of the Compensation Program The general implication of the above-described principles is that the compensation program will have to embrace a model that is clearly and precisely structured. A definition of exactly who may claim should be provided. Clarification should be provided to identify eligible claimants, whether they be in the aircraft, in the targeted World Trade Center and Pentagon buildings, in the damaged buildings surrounding the targets, and whether or not businesses are covered. A clear definition of precisely what injuries are compensable should be provided (for example, are those who breathed in air borne contaminants, like asbestos, eligible?) If there are parameters for awards they should be designated in advance. These might be based on jury awards in a relevant jurisdiction, DOT figures or some other source but any limits on the scope of recovery should be specified and based on some pre-existing standard that recognizes that individual differences in claimants do matter. Clarification will need to be provided as to the scope of the claimed losses on such elements of damage as "loss of business or employment opportunities," "hedonic damages," and the a role of expert economic evidence in the claims process. The claim filing process should be made as simple and easy as possible. Consideration should be given to designating an organization, federal or private, that can assist those with filing questions. The filing process should focus on and require claimants to provide the most specific sorts of proof including such items as medical bills, income tax returns, and collateral source payments or contracts. The form itself is not as important as the documentary proof it identifies and requires to be provided. The form might be designed so that a compensation formula might be applied in most cases. The goal would be to secure sufficient incident information (precise location of the victim, documentation of injuries, proof of earnings history, proof of medical expenses,) to allow for a mathematical calculation based on previously designated levels of recovery. This sort of formula approach might resolve many cases without the need for a formal hearing. If a claimant desires to work outside the framework of the established formula a fuller hearing should be provided at which supplementary proof will be accepted. Because of the tight time frames in the legislation (120 days to decision and 20 days for review), hearing requests should be contingent on an agreement waiving the mandated time limits in light of the need for individualized consideration. Consideration should be given to providing, within the regulations, a decision review process by someone other that the original hearing officer to insure horizontal equity and fairness. Hearing officers should as far as possible, not be cast in an adversarial role vis-a'-vis claimants. There should be a separate staff on the Special Master's team designated to respond to all questions regarding the filling and claims process. Hearings, and proceedings generally, should conform as far as possible to the requirements of the Administrative Procedure Act. III. Relations Between the Special Master and the Attorney General Once regulations are fashioned and a satisfactory process is established, consideration should be given as to whether or not the Special Master should be independent of the direct oversight or control of the Attorney General. The regulations should clarify whether, if at all and to what extent, the SM's decisions are to be deemed final, absent misconduct. The SM should have the power to issue such supplementary regulations as are necessary and not inconsistent with the original legislation and regulations. The SM should view his/her mission as the payment of fair and reasonably complete compensation to all eligible claimants. IV. Other Drafting Concerns and Considerations Listed below are other more detailed comments and considerations regarding the regulation drafting process. (1) The "collateral source" definition of Section 402 (4) is in need of clarification as to whether charitable efforts are excluded or included as collateral sources. If included, in what manner? Also, the scope of the definition of collateral sources has a bearing on the horizontal equity of the compensation award so that inequities could be exacerbated if the treatment of charitable contributions is not done with a great deal of careful analysis. (2) The term "economic loss" (section 402 (5)) includes "loss of business or employment opportunities." This is both broad and vague and likely to cause adjudicatory nightmares if not clearly defined. The reference to "State law" in the Section fails to make clear what state is meant (home state of individual, site of injury, other?) (3) The designers of the adjudicatory process can choose between two polar opposite approaches (or perhaps meld them). The first is to hire a large group of hearing examiners and let them have a go at individual claims. This risks the loss of horizontal equity unless some coordinating review process is installed ( a difficult matter given the quick time frame for ratification after decision 20 days). The another is to fix a fairly exacting formula for awards that specifies clearly the sort of damages proof required (tax returns, doctor's records etc.), the scope of potential awards (so many dollars for death, for income in light of proven earning etc.), and proximity to the disaster. The choice of approach will be a major Special Master policy decision. (4) The key is not the claim form described in Section 405(a)(2) but precisely what evidence should be required to be attached to it. The regulations will need to define what constitutes sufficient evidence. The categories of adequate proof should be careful spelled out (medical reports, income tax returns etc). (5) The problem of adequate proof is even more poignant with respect to collateral sources (Section 405(a)(2)(B)(iii)). Should all life insurance policies be required to be attached? Health insurance policies? Charitable contributions? Social Security payments, etc.? (6) The "review and determination" process described in Section 405(b) needs t be governed by objective evidence (see numbers (4) and (5) above) and objective yardstick for damages. The choice of an objective yardstick for damages will be a major Special Master policy decision. Alternative yardsticks might be drawn from Department of Transportation figures, average jury awards in an appropriate forum etc. (7) The 120 day "determination" requirement of Section 405(b)(3) will be impossible to meet in the early months of the operation of the compensation scheme. The large number of fillings will simply overwhelm those trying to conform to such deadlines. The early decisions will be especially important since they will fix a pattern that should be followed thereafter. Painstaking care to insure consistency will be essential. A rush to judgment will be counterproductive. Methods for slowing the process or streamlining adjudication (through the use of formulas etc. should be considered). Perhaps claimants should be asked to opt for a formula approach if they insist upon the 120 day limit or agree to a temporal extension if a hearing or review of decision is requested. (8) The "collateral compensation" rule of 405(b)(6) should be refined and clarified in the regulations. (9) The eligible individuals definition in Section 405(c)(2) is too vague. The Section includes any "individual who was present at the World Trade Center." This could be construed as covering individuals in the street etc. That matter has to be clarified in the regulations. Similarly the term "in the immediate aftermath" needs similar definition through regulations. (10) Eligible individuals include those who suffered physical harm or death" (Section 405(c)(2)(A)(ii). Again, definitions as needed. Are those who breathed asbestos particles or other noxious materials thrown into the air by the disaster covered? Under the law of a number of states they may be. (11) The applicable law for lawsuits has been spelled out but there is no indication as to which state law will govern the decision of the Special Master and the designation of personal representative. The regulations need to speak to the "choice of law rules" relative to these issues. (12) Claimants and their lawyers should have ready access to the awards made and the evidence that supported the awards, which can be achieved through a searchable public data bank of claims related date. The names of the victims should not be identified in the public data bank in order to assure the privacy of the individual. (13) The "subrogation" right described in Section 409(a) requires a better definition. Claimants will be faced with many subrogation problems that can be avoided by clear statements in the regulations. If the SM does make an award for medical expenses that is reduced by the amount of medical expenses already provided to the claimant because the claimant's expenses have been covered under a preexisting health care policy, the regulations should clarify whether or not the health insurer has a right to go against the U.S. Government to claim subrogation for the payments it made for the claimant. Also, the regulations should clarify that future medical expenses will be paid to the claimant in the SM award but that there will be a right of subrogation by either the government or the health insurer (but obviously not both) for expenses paid by a health insurer. Comment By: American Bar Association Task Force on Terrorism and the Law September 11 Email: Date The local time and date when the message was written. 2002-03-29 Dublin Core The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/. Title A name given to the resource dojP000621.xml 911DA Item Elements describing a September 11 Digital Archive item. Status The process status of this item. approved Consent Whether September 11 Digital Archive has permission to possess this item. full Posting Whether the contributor gave permission to post this item. yes Copyright Whether the contributor holds copyright to this item. yes Source The source of this item. born-digital Media Type The media type of this item. email Created by Author Whether the author created this item. yes Described by Author Whether the description of this item was submitted by the author. no Date Entered The date this item was entered into the archive. 2002-03-29