dojA000245.xml

dojA000245.xml

born-digital

email

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2001-11-26

November 26, 2001

via electronic mail and facsimile
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: Notice of Inquiry and Advance Notice of Rulemaking,
September 11th Victim Compensation Fund of 2001

Dear Mr. Zwick;

Safe Horizon submits these comments in response to the Department of
Justice's Notice of Inquiry and Advance Notice of Rulemaking, concerning
implementation of the "September 11 Victim Compensation Fund of 2001," (the
"Fund"), title IV of Public Law 107-22, 115 Stat. 230. As the country's leading
victim services organization, and as one of the principal institutions providing services
and assistance to victims of the September 11, 2001 terrorist attacks, Safe Horizon
urges the Department to adopt regulations that effectively and fairly serve the victims
the Fund was created to assist.

Safe Horizon's mission is to provide support, prevent violence, and promote
justice for victims of crime and abuse, their families, and communities. We assist over
250,000 clients each year through over 75 programs located throughout New York
City. Founded in 1978 as Victim Servics Inc., we give victims a stronger voice and a
meaningful role in the criminal and civil justice systems and assist in addressing their
immediate needs. We have pioneered victim assistance programs throughout New
York City and beyond.

Since September 11, we have drawn on our long history of working with
victims of crime and abuse and have developed programs to assist victims of the
attacks and their families. On September 14 we began to distribute immediate cash
assistance through New York State Crime Victims' Board programs. Soon thereafter,
we began to distribute monies from the September 11th Fund established by the United
Way/New York Community Trust at operations we established at the Family
Assistance Center at Pier 94, the Disaster Assistance Service Center at 141 Worth
Street, and centers in Brooklyn, Queens, the Bronx and Staten Island. To date, we
have distributed over $20 million, through approximate 21,000 checks, to victims of the
disaster, to assist with medical, housing and funeral expenses, as well as with compensation for
lost wages and property.

We provide non-financial services to victims as well. Through Crisis Support Group
Interventions we have assisted buisnesses and organizations whose employees experienced
trauma-related symptoms as a result of the attack. We established a 24-hour crisis support
hotline, which provides specialized information and referrals to victims of the disaster. Our
Counseling Center, a licensed mental health facility in downtown Brooklyn specializing in
trauma counseling, offers weekly group crisis support sessions and group bereavement sessions
that are free of charge and can be attended on a "drop-in" basis. In partnership with the United
Way and Scedco, Safe Horizon developed a Resource Referral Guide, a comprehensive directory
providing the most current and accurate information available citywide for victims of the
disaster, which is available on the Internet, and is updated on an ongoing basis.

In light of Safe Horizon's longstanding experience in serving victims of crime, and our
specific experience serving victims of the September 11 terrorist attack, we submit the following
comments, focusing on issues that will enhance victims' access to the Fund. In addition to these
comments, we have also reviewed, and endorse, the comments submitted by the National Center
for Victims of Crime, which we are not resubmitting here in order to avoid duplication.

I. Claims form format and design, and filing procedures

a. The application should assist victims in providing as much initial documentation as
possible.

The application should contain simple and concise instructions that inform clients about
necessary documentation. Claims should be deemed filed upon submission of an application that
reflects a good faith effort to include basic documentation. It is inevitable that in some
circumstances victims may be required to supplement initial applications despite their best
efforts to file a complete application. They should not be penalized as a result. The Special
Master should implement procedures that ensure that the applicant is informed as quickly as
possible about any additional documentation that is required, in order that the claim can be
processed within the 120-day statutory period. Claimants should not be penalized for failing to
submit subsequent documentation unless they have failed to respond to requests by a hearing
officer for that information. In particular, applicants who file toward the end of the two-year
limitations period should not be deemed ineligible because additional documentation is required.
Additionally, a telephone number should be included in the instructions for applicants to call if
they need off-site assistance in completeing applications and do not have access to a victim
advocate.

b. The form should be available in multiple languages.

In order to ensure that the forms are readable and readily available to victims, the forms, and
any accompanying instructional handouts, should be available in multiple languages, including
Spanish, Chinese, Haitian/ Creole, Russian, Bengali, Arabic, and others, as needed, to reflect the
language facility of victims of the September 11 attacks.

II. Procedures to assist an individual in filing and pursuing claims.

a. The Fund should provide victim advocates to assist claimants.

Through its extensive experience serving victims of crime negotiating criminal and civil
proceedings, Safe Horizon has seen first hand the many ways that victim advocates enhance the
process for system administration as well as for victims. Victim advocates can help claimants
understand the benefits to which they are entitled, prepare claims forms, and submit an
application that is as complete as possible. They can refer claimants to other social service
resources. Advocates would provide invaluable assistance to applicants who do not read or write
English. Perhaps most important, they offer emotional support to victims, who may find the
process of submitting a claim difficult, if not traumatic.

The Special Master should make victims advocates available to those seeking to file
claims under the Fund, and should draw these advocates from the social service and advocacy
organizations assisting victims of the September 11 attacks. Many of these organizations,
including Safe Horizon, are beginning to offer case managers to assist families in evaluating and
applying for the myriad of funds and services for which they may be eligible. It will be crucial
that families consider filing an application with the Fund as they assess all available sources of
assistance and redress. Case managers serve the critical function of helping to reduce the
number of times a family would be required to repeat their story and disclose personal and
sensitive information. They also help to ensure that families receive coordinated services. The
Fund should incorporate these case managers into its administration as victim advocates, to help
victims get the help they need as efficiently as possible.

We also recommend that the Special Master require regular meetings between the victim
advocates and hearing officers. These meetings would provide a forum for advocates and
hearing officers to discuss and address recurring issues, promote understanding of the
circumstances facing victims, and improve procedures for claim filing and adjudication.

b. A mechanism for appeal must be made available to claimants.

To guarantee claimants' due process rights, the administrative scheme must provide a
mechanism for review of hearing officers' decisions. This could be accomplished by creating a
panel of hearing officers to whom an individual hearing officer's decision could be appealed
before the final determination by the Special Master. It is critical that the panel be independent
from the hearing officer making the determination. Similarly, a mechanism for ensuring
consistency among the decisions of various hearing officers must be incorporated. The Special
Master could appoint a reviewing body, comprised of independent and non-partisan hearing
officers, to ensure that claims presenting similar circumstances are assessed consistently
regardless of which hearing officer made the initial determination.


III. Claimant eligibility

a. The statuatory terms should be interpreted to cover those who lived or worked in
the area of the crashes, and those responders who suffered injury as a result of the
crashes.

In order to provide an incentive for victims to access the Fund rather than commence a
private lawsuit, the statutory terms governing eligibility must be construed broadly enough to
encompass all victims who would have standing to bring a private lawsuit. Accordingly,
victims should be deemed "present at" one of the crash sites if they can establish that they were
injured because they lived or worked at one of the buildings that was subject to the attack, or in
one of the buildings that was destroyed or damaged as a result. Alternatively, they should be
eligible if they can prove that they were injured while serving as one of the responders who came
to the scene to provide assistance. The Fund should also be availabe to those who were injured
because they were in the area of the crash on September 11. Applicants can establish this, for
example, with a letter from an employer stating that they were at a conference or meeting at the
World Trade Center or its immediate vicinity, through appointment book records, emergency
room slips or ambulance slips attesting to injury and treatment as a result of the crash, or
affidavits.

The term "physical harm" should be construed to cover psychological as well as
discernable physical harm. For example, someone who worked in the World Trade Center and
escaped without physical injury may nevertheless have experienced psychological distress thatmay have rendered him or her unable to work for some period of time. Individuals who lived in the area may have been similarly affected. The fact that these victims were lucky enough to have escaped without observable physical harm should not render them ineligible to recover the non-economic damages made available under the Fund.

b. The Special Master should ensure that all relatives and dependents, including
same-sex partners and de facto parents and children, are eligible to recover from the
Fund.

In order to fulfill the statutory purpose of providing compensation to relatives of those who died as a result of the attacks, it is crucial that the Fund permit recovery for all those who had a family relationship of mutual dependence with the victim, regardless of sexual orientation or marital status. This should include the life partners of lesbian and gay victims, and the de facto parents of children who died in the attacks. These individuals should be eligible to recover in proportion to their actual losses, and should not be penalized because they may lack a particular legal relationship to the deceased.

c. Claimants should be eligible regardless of their immigration status

As the Immigration and Naturalization Service (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 penalized as a result of their status. The INS has stated that
families in those circumstances should be treated with compassion and their cases treated with discretion. Similarly, immigrants should be eligible to recover from the Fund regardless of their immigration status in order that all those harmed as a result of the attack can recover for their losses.

IV. Nature and Amount of compensation

a. Economic losses should include compensation for all expenses reasonably
necessary to allow victims to recover.

Hearing officers should adopt a realistic and flexible approach to assessing the expenses
that a victim, surviving family member or other dependent may need to recover their economic
losses. Some expenses may not be immediately apparent but should nonetheless be considered.
For example, survivors who were economically dependent on the decedent but who did not work
outside the home before September 11 may now have to find employment outside the home.
Some may incur new childcare costs. These costs, at least for some period of time, should be
recoverable in order to facilitate the survivor's ability to become economically independent.

The calculation of economic losses also should recognize a broad range of approaches to
responding to physical and pyschological injury. For example, some survivors may seek medical
treatment from non-allopathic doctors. The costs of treatment from homeopaths, chiropractors
and other health care providers should be recoverable as allowable out-of-pocket expenses.

b. "Collateral sources" should not include charitable contributions.

Private charitable contributions should not reduce the amount a victim can receive from
the Fund. Private charitable contributions are made with the expectation that they will be
independent of government compensation programs. They certainly are not made with the
intention that they would substitute for any amounts an individual would recover through a
private lawsuit against a purported tortfeasor, or from a government program. For these reasons,
chartiable contributions should not be considered to be a "collateral source" that would reduce
any amounts recoverable under the Fund.

V. The regulations should make clear that the statute does not preclude claims against
perpetrators.

In establishing the Fund, Congress intended to create an alternative to private lawsuits
against entities whose negligence may be deemed to contribute to victims' injuries as a result of
the September 11 attack. This purpose - substitution for a negligence lawsuit - is wholly of a
different nature than lawsuits against perpetrators of the attack. Holding perpetrators
accountable, through both civil and criminal justice proceedings, serves an entirely different
public purpose than addressing any resulting tort claims, and should be treated separately by the
Fund.

Safe Horizon would be pleased to repsond 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,

Safe Horizon
New York, NY

2001-11-26