dojN002311.xml

dojN002311.xml

born-digital

email

yes

no

2002-01-22

Tuesday, January 22, 2002 5:11 PM
Comments on IFR


Dear Mr. Zwick


Attached please find comments on the Interim Final Rule
implementing the September 11 Victims Compensation Fund. These comments
are submitted by the Lambda Legal Defense and Education Fund, the Empire
State Pride Agenda, the Human Rights Campaign Fund, the National Gay and
Lesbian Task Force, Gay and Lesbian Advocates and Defenders, and the
National Center for Lesbian Rights. You will also receive a copy by
facsimile.


Thank you for your attention to these matters and if you have any
questions, please do not hesitate to contact me at the number below.


/J


Attachment 1:


Lambda Legal Defense and Education Fund, the nations oldest and largest legal organization working to advance the rights of lesbians and gay men, is advising survivors who lost same-sex partners as a result of the attacks on September 11. Together with the Empire State Pride Agenda (ESPA), the Human Rights Campaign Fund (HRC), the National Gay and Lesbian Task Force (NGLTF), Gay and Lesbian Advocates and Defenders (GLAD), and the National Center for Lesbian Rights (NCLR), we submitted comments in November, 2001, urging full inclusion of these survivors in the September 11 Victims Compensation Fund. These comments respond to the Interim Final Rule published on December 21, 2001, and urge that legal protections for same-sex partners be strengthened.


The Interim Final Rule requires amendment to provide clear and explicit protections for same-sex partners of victims who died. The Rule should incorporate long-tested New York state law standards of mutual interdependence to expressly include partners of lesbian and gay victims within the coverage of the Fund.1 This concept has enjoyed acceptance in state law through a series of cases and regulations stretching well over a decade, and should similarly guide eligibility for the Fund. Express eligibility will serve the important ends of reducing the potential for conflicting claims or disputes, guiding personal representatives and hearing officers, and encouraging all surviving relatives to work together through the Fund as an alternative to litigation against the airlines in federal court.


The Fund is not bound by state law. Indeed, in areas such as the availability of noneconomic damages, it clearly overrides settled state law. Special Master Feinberg has indicated an unequivocal intent to make the Fund as accessible as possible and has said in public fora that he will take special measures to protect vulnerable claimants, including undocumented immigrants. It is entirely appropriate, then, that awards from the Fund should similarly be available to victims who lost life partners regardless of their status at law. General principles of state intestacy and wrongful death law both in New York and elsewhere do not provide a sufficiently clear guide for partners or personal representatives in making their claims. Many who lost life partners are already struggling with the inadequacies of state law to protect them in this time of tragedy. If the Rules rely exclusively on these state standards, the regulations may compound existing gaps in protection, imposing additional trauma on the loved ones of gay and lesbian victims. Rather, where reliance on some principles of state law may be necessary, the Rule should authorize reference to the specific law that has developed to respond to the extraordinary events of September 11. New York has made it absolutely clear that in responding to this tragedy, same-sex partners are eligible on the same terms as spouses for state and private relief.


As currently drafted, the Interim Final Rule gives ample discretion to the Special Master to calculate awards that properly include the losses suffered by partners, and to direct the personal representative to distribute that compensation to a surviving partner. Lambda and our co-signatories fully intend to advance claims on behalf of partners of gay and lesbian victims and will call on hearing officers and the Special Master to exercise this discretion. Nevertheless, the Rule places a heavy burden on surviving partners of gay and lesbian victims that does not exist for other family members. Partners are in a position of having to appeal individually to a hearing officers discretion in nearly every case, because they cannot be assured that the regulations will expressly protect their claims. This additional burden makes the process significantly more arduous for all of the family members of a gay or lesbian victim. It also inserts an unnecessary degree of uncertainty about individual claims.


Uncertainty about a partners status with respect to the Fund undermines the purposes of the Fund in several important respects. It may have the undesirable effect of encouraging partners to stake a claim in federal court instead, contributing to unnecessary litigation and possibly delaying or denying other relatives their ability to pursue compensation through the Fund. It similarly leaves personal representatives without effective guidance in their duty to determine who has an interest in the award and to give them notice of the claim. And most importantly, it fails to afford partners the peace of mind assured to other survivors. The Department of Justice should not allow these inequities to stand.


To meet these concerns, the regulations should:



Expressly provide that a type of beneficiary termed a partner has the right to compensation under the Fund. A partner should be defined as one who shared a mutually interdependent family relationship with the victim, based upon non-exclusive factors that may include common living arrangements, common ownership of property, emotional commitment, financial commitment, shared budgeting, or testimony from individuals with personal knowledge of the relationship. This definition is consistent with both New Yorks standards guiding assistance for September 11 victims and those adopted by the American Red Cross.


Grant partners rights under the Fund that are similar to those granted to spouses. This should include express instruction that where a victim had a partner, the amount of compensation on behalf of that victim should be calculated according to the single set of guidelines for married or partnered individuals, and that upon distribution, the Special Master shall direct that a partner share in the award with other relatives.


Express inclusion of partners within the definition of beneficiary and dependent at sections 104.3(a) and (b) as well, as proposed by the Attorney General of the State of New York in his comments on the Interim Final Rule, will also make it clear that partners shall be taken into account in calculating awards and shall have an interest in a distribution under the Fund.


Several other clarifications should also be made, even in the absence of the above recommendations, to assist in protecting the interests of same-sex partners.
Clarify that partner relationships place the victim within the same guidelines used for married individuals. Whether or not the Final Rule includes a definition of partner as suggested above, the Rule should make absolutely clear that where the victim was in a mutually interdependent, long-term committed relationship, that victims award will be calculated with reference to the guidelines applicable to married individuals. This may be accomplished by specifying that existence of a partner relationship constitutes sufficient extraordinary circumstance to justify an award comparable to the award for similarly situated married individuals.


Clarify that state law for purposes of distribution of awards can include any source of state law authorizing compensation to survivors of victims of September 11. Section 104.52, Distribution of awards to decedents beneficiaries, states that distribution of the award shall be consistent with the law of the decedents domicile. Regulations or internal guidance should clarify that any state or local law authorizing compensation to beneficiaries or survivors of September 11 victims may be considered here, including Executive Orders and regulations governing other types of crime victim awards. For instance, Governor Pataki has expressly ordered that partners be eligible for September 11 relief through the states Crime Victims Board, and New Jerseys corresponding regulations similarly include partners. At a minimum, distribution of awards should not be limited to the principles of state wrongful death law.




Mandate publication of individuals filing eligibility forms. Section 104.21(b)(6) permits, but does not require, the Special Master to publish a list of individuals who have filed eligibility forms. Publication should instead be mandatory. Publication will help to enforce the notice provision of section 104.4(b) because personal representatives will know that interested individuals have a way to learn whether a claim has been filed on behalf of their loved one, and thus whether the personal representative has properly provided notice. It will ensure partners that they can learn when a claim on behalf of their loved one is filed so they can make an appropriate submission in a timely manner, even if the personal representative fails to provide notice.


Impose penalty for the personal representatives failure properly to notify. Section 104.4(b) requires personal representatives to provide written notice of the claim to family, beneficiaries, and any other persons who may reasonably be expected to assert an interest in the award. There are no enforcement mechanisms for this provision, however. The regulations should specify that failure to notify any person within the notification requirement is a breach of fiduciary duty and can result in forfeiture of the personal representatives rights to serve in that capacity in making a claim on behalf of the decedent under the Fund.


Provide third parties the right to participate in hearings. Section 104.21(e) permits third parties to provide written statements or information regarding the claim. Third parties should also have a right to participate in hearings sought by the personal representative and to request a hearing where the personal representative opts against one.


Implementation of these suggestions would help to provide vital protections to those who lost a same-sex partner, and would honor the memories of the many gay and lesbian individuals who lost their lives in the tragic attacks on our nation.


Respectfully submitted,

Comment by
Lambda Legal Defense & Education Fund
New York, NY

Human Rights Campaign
Washington, D.C. 20006

Empire State Pride Agenda

New York, NY

National Gay and Lesbian Task Force
Washington, DC

National Center for Lesbian Rights
San Francisco, CA


Gay and Lesbian Advocates and Defenders
Boston, MA

2002-01-22