dojN002030.xml

dojN002030.xml

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2002-01-18

Friday, January 18, 2002 3:12 PM


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

September 11th Victim Compensation Fund of 2001
Special Master Kenneth Feinberg

Re: 24-hour medical treatment rule - 28 CFR Part 104 [104.2(c)(1)]

Dear Special Master:

Section 104.2(c)(1) of the interim final rule to Title IV of
Public Law 107-42 states, in relevant part, that you impose a requirement
of "medical treatment within 24 hours of the injury having been sustained"
for an injury to be considered by you as "physical harm."

In fact, the statute under which you labor -Public Law 107-42-
states, in relevant part, that a person is eligible for the compensation
under the law if two conditions are met: that the person "(i) was present
at the World Trade Center " and "(ii) suffered physical harm or death
as a result of such an air crash."

To begin with, Congress wrote that it wishes to compensate any
person that was present at the WTC and suffered physical harm. It would
appear that your inclusion of a 24-hour medical treatment requirement
limits the wish of Congress. The Executive Power can not limit the will
of the people as expressed by Congress; it should only execute it.

You saluted this law as "an unprecedented expression of compassion
on the part of the American people to the victims and their families
" It seems cruel and unamerican to exclude from this expression of
compassion many victims just because it took them more than 24 hours
to receive medical treatment.

In fact, you admit that the September 11 victims were "devastated
by the horror and tragedy of September 11." To some of the victims, living
and reliving this horror (not only the first day but days, weeks and
months), disoriented them and made them live recurrent nightmares and
flashbacks disabling them from any activity. Others were so scared that
did not dare go out of their homes. Still others, to this day can not
take a subway or go out of their homes without their loved ones.

In other cases, victims were feeling so bad from the injuries
to their bodies and respiratory systems that simply could not get out
of their homes. Many were disoriented for a long time. In many cases,
the victims had children to take care of, who were terribly freightened
and emotionally affected. They had no real choice. They had to live with
their pain while they took care of the children. In other cases, it took
time for the victims to organize themselves and find care for their children
so that they could go to get medical treatment.

Finally, your introduction to the interim final rule acknowledges
receiving comments from many organizations. Notably, you do not mention
any medical, scientific or psychiatric organization. The rules should
be made on a medical and scientific basis. Medical, scientific and psychiatric
associations are in agreement that (1) "physical harm" can not be defined
by the period in which treatment is sought for the injury, (2) physical
injuries exist whether the victim seeks medical treatment or not, and
(3) a victim may have physical harm and not even know it, at least for
a long time. Conversely, there is no medical, scientific or psychiatric
evidence that correlates the severity or existence of "physical harm"
with the period in which medical treatment for it is provided. Each human
being is different.

Your own Department of Justice has doctors, social workers and psychologists
advising the victims: These professionals will tell you -and have done
so already- that the victims with physical harm are as likely to have
retreated onto themselves for days and weeks so that they were unable
to go get medical treatment within 24 hours. The federal Center for Diseases
Control -as well as the Surgeon General- will tell you that physical
harm can not be defined with respect to the time within which the victim
sought medical treatment. Prestigious groups as those mentioned, together
with the American Medical Association and the American Psychiatric Association
as well as professors and researchers should also be consulted: they
will tell you that the 24-hour medical treatment rule is not medically
or scientifically based.

Over 100 WTC victims and their families integrate the Hispanic
Victims' Self-Help Group. The "medical treatment within 24 hours" reqirement
imposed by the rule will exclude from the benefits provided by the law
more than 50% of the victims with medically proven physical harm.

As you say, your office is "required, of course, to adhere to
the language which Congress set out in the statute." The statute provides
for compensation to victims who suffered physical harm in the World Trade
Center -and other specified places- on September 11 as a result of the
air crashes. Your office is not to make a rule limiting the language
and purpose of Congress's compassionate pronouncement.

Comment by:
Hispanic Victims' Self-Help Group

2002-01-18