dojW000734.xml

dojW000734.xml

born-digital

email

yes

no

2001-11-26

Monday, November 26, 2001 8:31 PM

September 11 Victim Compensation



Please see attached letter containing comments in response to Notice of
Inquiry and Advance Notice of Rulemaking



Attachment 1:





Re: Comments in Response to Notice of Inquiry and Advance Notice of Rulemaking; September 11 Victim Compensation Fund



Dear Mr. Zwick:



In response to the Notice of Inquiry and Advance Notice of Rulemaking regarding the September 11 Victim Compensation Fund (66 Fed. Reg. 55901), I would like to make the following comments. Please note that many of these comments are directed in particular at the situation faced by non-U.S. claimants.



Topic #5 Claimant Eligibility




1.Eligibility of non-U.S. citizens. Nothing in the statute prohibits non-U.S. citizens from filing a claim. Nevertheless, it would be useful to specify in the regulations that claimants will not be disqualified on the basis of nationality, citizenship or residency.



2.Proving presence at the World Trade Center. New York City has established a special procedure for obtaining death certificates relating to persons who are missing as a result of the September 11 attacks. It would simplify the September 11 Victim Compensation Fund claim procedure if the same affidavit could be accepted as evidence that the decedent was in fact present at the World Trade Center and died as a result of the attacks.



New York has addressed three different situations and prescribed somewhat different procedures for each:



a)Where the missing individual was employed by one of the government entities engaged in the rescue or one of the firms that was located in the World Trade Center, that agency or company will file an affidavit confirming the individual's location at the time of the disaster.



b)Where the missing person was a passenger or crew member of one of the airplanes that crashed into the World Trade Center, a representative of the airline will certify the airplane manifest in an affidavit that will be filed in the New York County Supreme Court.



c)Where employment records are unavailable or a missing individual was visiting in the World Trade Center, family members or others with personal knowledge of the individual's whereabouts, will be asked to file an affidavit attesting to the fact that the missing loved one was in the World Trade Center on the morning of September 11, 2001, and has not appeared since.



For some cases in this third category, the personal representative filing the claim may not be the same as the "family members or others with personal knowledge of the individual's whereabouts" who signed the New York affidavit. In those situations, the personal representative could be required either to submit the same information that is required in the New York affidavit, or to attach the affidavit submitted in New York, and affirm that he or she adopts the contents of the affidavit and believes the statements in it to be true.



For your reference, the New York procedures and sample affidavits are available at http://www.nyc.gov/html/em/dth_cert.html.



Topic #6 Nature and Amount of Compensation




3."Collateral source" is defined in Section 402(4) to mean "all collateral sources, including life insurance, pension funds, death benefit programs, and payments by Federal, State, or local governments related to the terrorist-related aircraft crashes of September 11, 2001." The Special Master is required under Section 405(b)(6) to reduce the amount of compensation by the amount of the "collateral source compensation the claimant has received or is entitled to receive as a result of the terrorist-related aircraft crashes of September 11, 2001."



The regulations should specifically address the treatment of government payments that are received as part of a general benefit, social security or other government program for support of spouses and dependents of deceased workers. This is particularly important in determining the effect of payments received from foreign governments, whose programs may provide an automatic subsidy to a widow or widower (particularly of an employed person), irrespective of the cause of death. In the language of Section 405(b)(6), the question is whether this money is received "as a result of the terrorist-related aircraft crashes."



I would argue that general "social safety net" payments should not be counted as "collateral source" in this context, in particular because Section 402(4) refers only to government payments "related to the terrorist-related aircraft crashes of September 11, 2001," which is not an accurate description of governmental programs providing general support.



4.In two places in the statute, a reference to "claimant" makes it difficult to understand the manner in which compensation will be calculated with respect to a decedent. "Claimant" is defined in Section 405(c)(2) as a person who was present at and injured in the attacks or, in the case of one who died as a result, that persons personal representative.



a)Section 405(b)(6) provides that compensation will be reduced by "the amount of the collateral source compensation the claimant has received or is entitled to receive..." [Emphasis added.] Since the claimant in the case of a decedent is the personal representative, the compensation awarded will be reduced by the amount of any collateral source payments made to the personal representative. It is not clear, however, whether compensation from the fund will be reduced for collateral source payments made to or for the benefit of other family members (e.g., directly to the decedents children, or through a guardian).



b)Section 405(b)(1)(B)(i) provides that the Special Master is to determine "the extent of harm to the claimant, including any economic and noneconomic losses." [Emphasis added.] This raises two points:



i.The regulations should clarify that "claimant" in the case of a decedent is interpreted under Section 405(c)(2) to mean both the decedent and the personal representative, so that the noneconomic losses of both can be considered (e.g., pain and suffering of a decedent who did not die instantly, as well as loss of consortium for an ex-spouse).



ii.The regulations should clarify whether the noneconomic losses of any surviving family members other than the personal representative can be taken into account in calculating compensation. If the noneconomic losses of those other family members cannot be compensated from the fund, families will generally be compelled to select as the personal representative the one member (spouse, child, parent) who can prove the greatest amount of noneconomic loss. This would appear to be inconsistent with the purpose of the statute stated in Section 403 ("It is the purpose of this title to provide compensation to any individual (or relatives of a deceased individual) who was physically injured or killed..."). [Emphasis added.] It is extremely important that families know in advance whether the noneconomic losses of all family members as recognized under the applicable law can be included by the Special Master in the calculation of compensation, or only that of the decedent and the personal representative.




5.Section 405(b)(1)(B) provides a two-step process which leaves enormous discretion to the Special Master to determine an amount of compensation to be awarded that is different from the amount of harm that the claimant is determined to have suffered. After determining the "extent of the harm to the claimant," the Special Master determines the amount of compensation "based on the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant." The statute specifies collateral source income which must be deducted from the amount of compensation awarded. If there are other factors which can reduce or increase the amount of compensation awarded, once the extent of the harm has been determined, they should be specified in the regulations, in order to ensure a predictable and fair procedure.



Thank you for your consideration of these points. If you have any questions, I would be happy to respond as promptly as possible.




Sincerely,



Individual Comment

San Francisco, CA

2001-11-26