Gov, Ag Object To 9/11 Compensation Fund Rules

Governor George E. Pataki and Attorney General Spitzer today announced the filing of formal objections to the federal regulations governing the September 11th Victims Compensation Fund.

The objections note that the regulations unfairly exclude many victims from participating in the fund, provide inadequate compensation to other victims and contain numerous other, important flaws.

Last week the Governor and Attorney General participated at a family rally to gather comments on the proposed compensation plan from family organizations representing survivors of the thousands of victims killed in the September 11 terrorist attacks. The objections were submitted to the U.S. Department of Justice (DOJ) and Special Master Kenneth Feinberg, who is considering possible changes to the regulations.

"The interim regulations prevent many victims of the September 11 attacks from receiving the full and fair compensation they were promised by Congress," Governor Pataki said. "I urge the Special Master to listen carefully to the families and make changes to his plan so the loved ones of those who died on September 11 are treated fairly.

"We have all been inspired by the courage of the families of those who died and we will continue to stand with them and do everything we can to support them," the Governor said.

Attorney General Spitzer said, "Simply stated, the interim regulations violate federal law. Undocumented aliens, domestic partners of the deceased, and individuals who were injured in the September 11th attacks are just three of the many groups who are effectively excluded from the compensation fund, despite the clear intent of Congress that all victims and their families should receive benefits. There is no legal basis for many of the provisions in the regulations, and they must be amended.

"Since September 11th, we have been fighting on behalf of all of the victims and their family members, not just those in New York, but throughout the country," Spitzer added. "If allowed to stand, these regulations will perpetuate the tremendous hardships that these devastated families are now experiencing. We will not rest until these regulations are changed and all the victims and their families are allowed to seek full and fair compensation from the fund.

The following is a list of the most significant changes to the regulations recommended by Governor Pataki and Attorney General Spitzer:

SUMMARY OF PROPOSED CHANGES TO VICTIM COMPENSATION FUND REGULATIONS
  1. Allow all injured victims to apply for benefits. The current regulations require injured victims to prove that they are disabled. Many victims who suffered significant injuries have continued to work in order to support their families, and thus cannot meet this stringent definition. The regulations must be changes to permit all injured victims to file claims, including those who continued to work despite their injuries.
  2. Eliminate the requirement for contemporaneous medical records. Many injured victims are not eligible for compensation because they were treated at emergency triage locations, and thus cannot submit "contemporaneous" medical records as required by the regulations. These victims should be allowed to file claims and submit other documentation proving their injuries and the treatment they received.
  3. Eliminate the requirement that injured victims seek medical care within 24 hours. The first priority of many injured victims was to reunite with their families, and many did not seek medical treatment until September 12th or thereafter. Similarly, many firefighters, police officers and other emergency personnel continued for days to search for victims at the site, despite injuries that they sustained. The requirement for medical treatment within 24 hours must be eliminated to allow all of these individuals to file claims.
  4. Prohibit the INS from using claim information in deportation proceedings. The Department of Justice oversees both the victim compensation fund and the Immigration and Naturalization Service (INS). As a result, undocumented aliens -- including both injured victims and the families of deceased immigrants -- are understandably afraid that if they file a compensation claim with the Special Master, the information will be provided to INS and will result in deportation proceedings. The regulations therefore must contain a confidentiality provision that prohibits the INS from using claim information in deportation proceedings.
  5. Ensure that domestic partners are eligible for compensation. Many of the victims had fianc??s, domestic partners, or wre in other committed relationships, and the regulations must clarify that these individuals are eligible for compensation.
  6. Advise claimants of their expected award before requiring a waiver of legal rights. Under the current regulations, victims and their families are forced to waive their right to commence litigation as soon as their claim is deemed "substantially complete." Unfortunately, they may later learn that they were not eligible to file a claim, or that they will receive only a minimal award. This is particularly true for the families of police officers, firefighters and other emergency personnel, whose awards will be substantially reduced by "collateral source" payments. Congress intended the claim process to be a viable alternative to litigation, not a "trap for the unwary" in which unsuspecting victims are induced to file claims and waive their legal rights, and then receive little or nothing in return. The regulations must ensure that claimants receive notice of the expected compensation, so that they can make informed decisions about whether to waive the right to sue.
  7. Allow victims to prove their individualized losses. The federal law requires the Special Master to make awards based upon the "individual circumstances" of the claim. The regulations, in contrast, create "presumed awards" and prevent victims from receiving more than those predetermined amounts unless they can prove "extraordinary circumstances." These unwarranted limits on recoveries must be eliminated.
  8. Eliminate the 2-hour time limit on hearings. The federal law provides victims and their families with the right to have a hearing, including the presentation of witnesses. The regulations, however, place an unwarranted 2-hour time limit on hearings. It is appalling that the Special Master is giving spouses and other family members of those killed in the September 11th attacks a mere 2 hours to explain the emotional, physical and financial impact of the loss of their loved ones. This 2-hour time limit must be removed.
  9. The presumed awards for non-economic damages are too low. The DOJ regulations determine -- before hearing any evidence from any victim -- that all individuals killed in the attacks are presumed to have suffered exactly $250,000 in non-economic losses. In addition to failing to consider the individual circumstances of the victims, this amount is clearly too low to fairly compensate victims for their physical pain, emotional anguish, disfigurement, loss of companionship, loss of enjoyment of life, and other non-monetary losses. The amount should at least be doubled, and families of victims should be allowed to prove their individual non-economic damages.
  10. Charitable contributions should not reduce the amount of compensation. The regulations give the Special Master the authority to reduce an award by the amount of charitable contributions received. When the American people donated to charity in response to the September 11th attacks, they intended those funds to benefit the victims, not the federal treasury. The regulations must make clear that charitable payments, including those made by New York State's World Trade Center Relief Fund, should never be used to reduce awards to victims.
  11. Collateral source payments should offset only related losses. The regulations reduce awards by the amount of collateral compensation that the claimant has received, even if the collateral compensation was unrelated to the damages for which recovery is sought. For example, Congress made clear that victims of the September 11th attacks should be compensated for both economic and non-economic losses. Pension benefits, life insurance and other "collateral source" payments are intended only to cover economic losses, and thus should not be used to reduce the non-economic portion of the award to the victim.
  12. Authorize appeals of compensation awards. The regulations do not provide any mechanism for appealing compensation awards, even if the award is unconscionably low and clearly contrary to the weight of the evidence. The regulations must be revised to allow all victims to appeal their compensation awards to the Special Master.
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