W000752
To: Kenneth L. Zwick, Director,
Office of Management Programs, Civil Division, U.S. Dept . of Justice
Re: Comments in Response to DOJ Notice of Inquiry Regarding the
September 11th Victim Compensation Fund
We welcome this opportunity to comment on the new federal compensation program to
assist victims of the September 11 attacks and their families, many of whom already are receiving
assistance from our member programs. The new program operated by the Department of Justice
promises to provide extensive benefits to victims and their families - in most cases to a far greater
degree than the states are authorized to offer. We hope our comments serve to facilitate the
operation of a program that works fairly and expeditiously to assist victims and their families in
their recovery from the tragedies of September 11.
The membership of the National Association of Crime Victim Compensation Boards
comprises victim compensation programs in all 50 states, D.C., and the territories. Each of these
programs has from 10 - 35 years of experience in providing financial assistance to victims of
violent crime. We believe that the states' experience in running victim compensation programs will
be of value to DOJ, but we also recognize that there are substantial differences in how the states'
programs and that of the federal government are constructed. In many respects, the DOJ program is
unprecedented, and new issues are under consideration that require wise policy choices.
We urge DOJ to finish its rule-writing process and begin accepting applications without
delay. States directly involved in assisting 9/11-attack victims/families report that many people
need help as soon as possible. There is every reason to move quickly to promulgate rules that
clearly define requirements, procedures, and benefits, as well as to staff a program that can
provide appropriate assistance to victims in filing and perfecting claims.
Relationship of State Compensation Programs to DOJ 9/11 Program
We first wish to emphasize that the antiterrorism legislation adopted this October places
the DOJ program with the primary responsibility for assisting victims of the September 11 attacks.
We call your attention to 42 U.S.C. 10602(e), as amended in October, which spells out that state
compensation programs "shall not pay" benefits when a victim could have those benefits paid by
either the DOJ program or by the states. While state compensation programs will continue to help
victims and their families until the DOJ program begins paying benefits, the law clearly requires
DOJ to take this responsibility from the states.
The provision is particularly strong: It directs that when an individual victim is eligible for
a benefit from the DOJ 9/11 compensation program as well as a state compensation program, the
state compensation program "shall not pay" that benefit, and the DOJ compensation program shall
pay that benefit without regard to the existence of the state compensation program. It reads as
follows:
"(e) Relationship to certain Federal programs-
Notwithstanding any other law, if the compensation paid by an eligible crime victim compensation
program [this refers to state compensation programs] would cover costs that a Federal program,
including the program established under title IV of Public Law 107-42 [the Federal 9/11
compensation program].
or a Federally financed State or local program, would otherwise pay--
(1) such crime victim compensation program shall not pay that compensation; and
(2) the other program shall make its payments without regard to the existence of the crime victim compensation program."
Since the states already have paid and will continue to pay claims filed with them for
compensation from the victims and families of the victims of the 9/11 attacks, the real question is whether the federal compensation program can reimburse the states for payments already made, or
payments that may continue to be made while the victims'/families' claims are pending with the
federal compensation program. We believe that the law would require such reimbursement -- that
this is a fair reading of the relationship between the state and federal compensation programs, as
determined by the Congress as recently as October of this year.
State victim compensation programs heavily involved in providing financial assistance to
victims and family survivors of those killed in the September 11 attacks are New York, Virginia,
Pennsylvania, New Jersey, and California (which extends eligibility to California residents who
are family members of those killed in the attacks.) These programs can provide the DOJ program
with information concerning payments made, so that DOJ can reimburse states.
Other Key Points
We also wish to emphasize these other key points as DOJ works to develop a program that
operates efficiently and effectively on behalf of the victims and their families.
Assistance to Victims. Because of the variety and complexity of the benefits available to
victims and their families, the DOJ program needs to provide clear and sufficient information for
filing, as well as a maximal amount of assistance throughout the documentation and claims-analysis
process.
This should be a non-adversarial process, as it is in state-compensation-program practice, with the
objective to ensure that all claimants avail themselves of the opportunity for as many benefits as
are offered. Chiefly an application form and accompany brochure should list all available benefits
so as to prompt victims to consider applying for them, and DOJ claims analysts should maintain
contact with applicants to answer questions, provide information, and elicit needed documentation.
Eligible Applicants and Beneficiaries. We urge DOJ to consider an application process that allows all potential beneficiaries to assert claims. While the statute speaks to one filing per death claim from one personal representative, we believe that this can be interpreted to mean that multiple applications deriving eligibility from one deceased victim could be consolidated into one "filing." While practically speaking, most families will file only one application through a recognized representative, we do not believe that one personal representative needs to be burdened with the coordination of all family members' interests into one application, particularly when those families may not be cooperative, or may have differing approaches to the question of litigation vs. applying to the DOJ program. It could be far simpler to allow more than one "personal representative" to file, because DOJ could coordinate benefits so that they would not be duplicative. Benefits could be paid as appropriate to or on behalf of different family members deriving eligibility from one death, as is done by state compensation programs. (State compensation programs may issue multiple checks on one filing, to hospitals, funeral homes, and individual dependents, for example.)
Hearings. We urge DOJ to develop one level of appeal within the program following eligibility decisions. If this is done, then it may not be necessary to hold a hearing in every case prior to decision making. However, absent an appeal process, a hearing should be scheduled in every case. Hearings should be informal in nature, with a goal of helping applicants perfect their claims, rather than being an adversarial process.
Collateral Resources. We have described already the federal law regarding the
relationship of state-victim-compensation payments to the DOJ program. With regard to other
governmental benefits, such as workers compensation, Social Security, and the like, as well as private-employer medical insurance and disability and death benefits, it should be possible to ascertain readily what is paid and available to victims and families, and to reduce DOJ program benefits accordingly. However, we note that state victim compensation programs generally do not record charitable contributions to victims as collateral resources. In part, this is an approach taken for practical administrative reasons: it often is difficult to verity whether a donation has been received by a family and in what amount, as well as to determine what expense it was intended to pay. For this reason, we recommend that DOJ disregard charitable contributions paid to victims, or at least to disregard a certain threshold limit. Some states also do this with regard to life insurance payments.
In the remainder of our comments, we follow the outline set forth in the Department's
Inquiry dated November 1.
Topics #1 & 2: Application Forms and Filing
a. Application Forms. Application forms currently in use by state crime victim
compensation programs can be obtained by going to this Association's web site, nacvcb.org,
clicking on the Program Directory, and linking to each state's web site. However, the Association
recommends that shortened claim forms are more appropriate for mass-violence crimes, such as
the 9/11 attacks, where victimizations share common elements (a multitude of victims of the same event do not need to describe the crime, for instance). As one example, New York's Crime Victims Board has special forms and instructions for World Trade Center victims at www.cvb.state.ny.us.
DOJ notes that the statutory requirements for information from the claimant regarding (1)
proof of physical harm or death, (2) losses suffered, and (3) collateral resources appear to
contemplate a detailed form and filling. While gathering sufficient detail is important, state
compensation programs have found that appropriate form design, emphasizing clarity and
simplicity, need not result in a lengthy or complicated application. Since standard practice among
compensation programs is to verify directly from source documents, such as medical records and
billing, any key information regarding the claim, the application itself does not need to require a
great deal of verbiage from the victim. The goal should be getting sufficient information so that
appropriate documents can be identified and either provided or located for verification, rather than
requiring the victim to repeat on the form the information that will be provided by those
documents.
For this reason, among the most important elements of the application form is an
authorization from the victim for the release of information, such as medical records, so that DOJ
investigators can obtain documentation directly from hospitals and employers. We note also that
such a release could allow state compensation programs to provide information to DOJ on claims
filed by, and benefits paid to, individuals who may file with the DOJ program.
Rather than require the victim to describe the crime, the form should focus on obtaining
information on the victim's location and relationship to the crime scene. For injured victims, a
description of injuries sustained is essential, as well as a listing of where treatment was received.
Names and addresses of service providers, employers, and insurance companies are essential.
DOJ rules should ensure that providing the victim's and claimant's Social Security numbers
is mandatory, since it facilitates identification needs in many respects. It may be useful to get an
alternative address/contact information, since it is not uncommon for victims to move without
notifying a compensation program.
The form should assist victims by prompting them with information or a checklist covering
the various types of losses the program will cover, along with the different specific kinds of
collateral resources that will be factored into decision making on payable benefits. Victims should
not have to guess at what losses will be covered, nor have to provide information than is
unnecessary. For example, if charitable contributions are not going to be considered collateral,
then information about them need not be sought.
Supporting documents that may be needed include a doctor's statement of disability; a
doctor's verification that injuries and medical treatment are directly related to the crime, rather
than the result of unrelated conditions (this also may be apparent from comparing the victim's
statement of injuries sustained to the medical records of treatment provided for those injuries);
itemized statements for medical, dental, and/or funeral expenses; proof of employment and income
from employers and /or tax forms; and information from insurance companies, pension plans,
Social Security, and other government benefits that may be counted as collateral.
b. "Filing" and the 120-Day Determination Period
Because the array of benefits offered by the DOJ program, and thus the accompanying
documentation required, will be quite extensive, the 120-day determination period may be
problematic in some cases. Very few state compensation programs operate under statutorily
mandated claim determination time frames. But all states regard expeditious processing of claims
as a paramount goal, and they too must overcome obstacles posed by the many applications that
lack key data or documentation necessary for decision making.
No claim should be denied simply because information is not provided in the initial filing.
Applicants should have an opportunity to supplement their initial application, and should be given
detailed guidance provided as to what is missing. State compensation programs routinely send
notices to applicants asking for various documentation and information necessary for claim
evaluation, in the form of standardized letters adaptable to individual circumstances. In many
instances program staff also telephone applicants to discuss missing elements. The DOJ program
similarly should take the initiative in contacting claimants by mail and phone to detail the precise
documents or data needed to make a determination.
DOJ has several options regarding the 120-day statutory determination period and its effect on problematic claims. It could:
a. Consider the claim "filed" upon first receipt of the claim form, regardless of its
sufficiency or supporting documentation, and toll or stop the clock if necessary to seek further documentation or perform additional analysis.
b. Consider the claim "filed" only when the application is substantially complete.
Applicants would be notified that specific data or documents must be provided before the claim is considered filed. The 120-day clock would commence only when the claim was substantially complete for decision making purposes.
c. Consider the claim "filed," and not stop or toll 120-day clock, regardless of claim
insufficiency. The program then would make whatever determination is possible at the end of 120
days, depending on documentation received. Usually, at least some determination of eligibility for
some benefits could be made, without necessarily determining all possible benefits. In other
words, the determination at the end of 120 days would at least notify the victim that the victim
qualifies as an eligible applicant, and that benefits will be evaluated and paid as proof of loss is
provided and evaluated.
Each of those options has some drawbacks. Option a. may effectively eliminates the
120-day time period as a real measurement. The DOJ program would have wide discretion to
decide when the clock was running and when it was not, and this could result in delays for
applicants. Option b. also could work against claimants' interests, since to some degree it would
be in the program's discretion to determine when the claim filing is complete. However, there at
least would be some certainty that the process, once begun, would proceed within a specified time frame.
We suggest that option c. is a more viable option, particularly if "determination" can be
defined to mean simply a decision on the applicant's eligibility for benefits - accompanied by a
payment of whatever benefits can be proven at that time - rather than a final decision on all benefits payable.
Option c. is closest to general practice among state compensation programs, which
routinely bifurcate the "eligibility" decision from the determination of which specific benefits can
be paid. The "eligibility phase" may look only at basic facts and circumstances to determine if any
benefits at all would be allowed: for example, was the victim actually present at the crime and
injured as a direct result of it; or is a particular family member eligible to seek benefits. The
question of which benefits can be paid, and how much can be provided, is part of a second phase, once basic eligibility is determined.
It is therefore very common among state compensation programs for initial eligibility
determinations to be made that do not involve a final determination of all benefits. In fact,
programs encourage victims to submit applications early, before all losses may even be sustained.
Program seek to make determinations of eligibility first; make payment on what they can, once that
eligibility determination is made; and make further payments as more expenses and losses are
submitted and verified. While this means that a claim may be "open" for payment for some time
after an initial eligibility determination is made, this is not regarded as an administrative burden.
We are aware that the statute specifies making a "final determination" within 120 days, and
payment within 20 subsequent days. We suggest only that a more realistic goal in some cases may
be for the "final determination" to be limited to the questions of applicant's basic eligibility for
benefits and that payment could only be expected on such losses as are satisfactorily proved at 120
days. We see no reason why a claim could not be held "open" for payment of further expenses as
they are submitted and proven. We believe this interpretation and approach, which closely
follows standard state practice, would serve the interests of the victim in establishing eligibility
with certainty, even if payment is not immediately forthcoming. It may be more important that the
victim be afforded ample time and opportunity to seek all available benefits, rather than have a
"final" decision that only addresses a few. DOJ program interests also would be served, since the
program will need sufficient time to evaluate benefits fairly and fully.
If at the end of 120 days, neither eligibility nor payable benefits can be determined because
of insufficient information, the DOJ program decision should not be denial. Rather, the victim
should be put on notice that the claim will be closed or suspended until such time as the victim
provides further necessary information. A "deny without prejudice" decision is an approach used by some states.
#3 Procedures for Hearing and the Presentation of Evidence
Based on standard practice among state compensation programs, we recommend the
following:
a. Upon receipt of the application, the assigned analyst within the DOJ program reviews
the "paper file," determines whether the application form is sufficiently completed, and checks what supporting documents may be missing.
b. A notice is sent to the applicant seeking missing information, with any claim deficiencies
communicated to the victim with a restatement of requirements. If possible, telephone contact is
made with the applicant to seek this information and explain more fully what is missing. Written
followup following any informal phone contact, with deadline given, is recommended. This
informal interaction with the applicant usually is extremely helpful in moving the process along expeditiously.
c. Upon receipt of sufficient information, a determination of eligibility and any benefits
payable based on proven expenses and losses is made and communicated to the applicant.
Opportunity to request a hearing is provided to the applicant, if the applicant is dissatisfied.
Standard practice among state compensation programs is not to schedule a hearing until a
determination of eligibility has been made, and only if the victim disagrees with that determination.
Hearings are scheduled only if matters are in dispute, which can then be resolved once further
information is provided and evaluated. There is no precedent among state compensation programs
for appeals on questions that arise in the course of the evaluation of a claim.
Unlike state practice, however, we note that no procedure is specified in the DOJ statute
for hearings subsequent to a determination being made by the DOJ program; neither is any
opportunity for appeal afforded. While we urge DOJ to set up at least some level of appeal within
the program itself, if this is not possible, then we believe that a hearing would necessary in every case prior to a final determination.
We recommend that hearings be informal in nature. While an oath may be required of
applicants and witnesses, formal evidence-presentation methods should not be necessary. The
hearing officer should be trained to elicit as much evidence as possible from the victim and afford
all opportunity for the victim to provide further information. For this reason, hearing officers
should have some training in victimization (reaction to trauma), and should be selected to some degree upon qualifications relating to their abilities dealing with people in person.
A preponderance of the evidence standard is informally in use among state compensation
programs.
Hearings should be recorded. Transcription should only be necessary if further appeals
are taken.
A hearing location convenient to the victim is desirable. Hearings in at least New York as
well as Washington, D.C., are certainly recommended. State compensation programs do not pay
for transportation expenses to hearings, but DOJ should consider a small stipend for this purpose if
the victim lives outside a certain distance from the hearing. The DOJ program should also be open
to the possibility of telephone hearings for victims who cannot travel to hearing sites, as well as to
travel by hearing officers to the victim when circumstances require. Scheduling conflicts will
arise, and an opportunity to postpone a hearing should be afforded at least once to the victim.
Advocates to orient and aid victims before and, as necessary, during hearings have proven
very beneficial to both victims and compensation programs. We urge DOJ to ensure that helpful staff are available at hearings for this purpose.
DOJ should work cooperatively with all federal, state, and local law enforcement and
emergency management agencies to obtain necessary facts regarding the identities of victims.
Since police reports on individual victims likely were not taken, DOJ investigators should obtain
airline passenger lists as well as lists maintained by other agencies of victims and family members
claiming injury or death. DOJ should have subpoena power to compel production of documents,
as state compensation program do.
#4 Procedures to Assist Applicants
State compensation programs generally assist the victim in determining what the victim's
losses and expenses are. This is done first through an application form and accompanying
instructions that list eligible expenses, prompting victims to think carefully about their claims and
what they might be eligible for. Some programs have developed a handbook for victims and those
who assist them, and DOJ should develop such a brochure. A newsletter or update material,
available in print and on-line, would be ideal in clarifying issues as they arise. State
compensation programs also have participated fruitfully in outreach meetings that provide
information to potential applicants, and this may be possible for DOJ to do as well.
Assistance also is provided by state compensation program staff during the analysis of
applications and documents. If it appears that the victim has failed to seek funds for a benefit for
which the victim likely would be eligible, the analyst may inform the victim through telephone
contact as well as by mail. The DOJ program should not place the entire burden upon the victim or applicant to determine what potential benefits are available.
Since the array of benefits available through the DOJ program is extensive, particularly in
the realm of noneconomic losses, it is difficult to imagine applicants being able to make these
calculations and presentations of losses without expert help. For many victims, this likely will
involve the services of an attorney. (We note, in contrast, that very few applicants for state
compensation programs use or require attorneys.) For those victims who have not retained
attorneys, expertise should be available in the DOJ program to help victims determine losses,
particularly loss of support calculations, as well as non economic losses like pain and suffering
and loss of consortium. DOJ may wish to consider standard schedules for determining these
long-term or indeterminate losses, based on recent civil judgments and settlements.
Since state compensation programs do not pay for noneconomic losses, we can offer little expertise in the area.
Most state compensation programs allow attorneys fees, but nearly all that do, limit these
fees. Typically, the program will pay a set amount as a fee per claim, or the program will allow a
limited percentage to be paid in addition to the award (usually 10% or 15%). State compensation
programs do not allow payment of fees for other experts, but this because the losses generally paid
are clearly defined, and caps on overall expenses do not require the need for long-term projections
of losses. We note that the Social Security Administration has regulations governing its authority to
pay attorneys fees in determinations of disability, and these may be worth examining.
#5 Claimant Eligibility
Among states, eligibility for benefits typically extends to close family members of anyone
killed; anyone physically injured as a direct result of the crime, and any person with significant
emotional trauma because the person faced a credible threat of injury or death, whether or not the
person was physically injured. Terms such as "present at" and "immediate aftermath" would be
interpreted generally to include someone who was exposed to injury or danger because of the
primary criminal event, in a time frame in which destruction from the precipitating criminal act
was still visibly occurring as a direct result of the force of the initial destructive act. For example,
eligibility likely would extend to someone suffering a medical condition because of exposure to
dust and debris that significantly injured the victim in terms of locomotion, vision, or respiration,
but not to an individual to which the dust and debris were merely an inconvenience or aesthetically unpleasant.
Having said this, there is some procedure among states to extend coverage to a broader
class of individuals who may be emotionally traumatized, if not physically injured, because of
their proximity or relationship to a criminal event. The compensation program responding to the
Columbine High School shootings, for example, conferred eligibility on all students, facility, and
employees of the school, regardless of their presence at the school at the time of the criminal
action. We note that because benefits in Colorado and other states are limited to actual expenses -
medical and counseling costs, lost wages, and lost support directly related to criminal injury or
death rather than inclusive of noneconomic losses such as pain and suffering, and because overall
maximums are comparatively low (the median state cap is $25,000), eligibility can be extended to
broader categories of people without necessarily multiplying total costs to the program. (It is less
likely that a faculty member not at Columbine on the day of the shooting, for example, would
submit a claim for any medical, counseling, or wage losses because of an injury related to the
crime.) DOJ, since it will be offering noneconomic losses, may have different issues to consider in broadening coverage.
Further, because the benefits paid by state compensation programs cover only actual
expenses and economic losses related to physical or emotional injury, it is not important to states
to limit eligibility to "serious" injury. (Usually, however, only those with relatively serious
injuries do apply, since those injured in minor ways often do not incur expenses.) Again, DOJ may
have other considerations at stake because of the noneconomic benefits allowable under the
program.
It may be difficult to verify who was "present at" the World Trade Center attack. Since
DOJ may be considering claims only from those who are physically injured or killed, medical and
counseling records placing the victim at the scene at the time of the injury should be a primary
documentation source for this information, along with death certificates for those killed. The
Oklahoma compensation program found that verification of a visit to an emergency room was the
best means of determining whether a victim's injuries actually were sustained because of the blast
at the Murrah building. Many victims' families have registered with FEMA, the Red Cross, and
other agencies, and it may be possible to cross-reference those lists for confirmation purposes.
With regard to questions surrounding the role of the "personal representative" as the only
party eligible to file claims in death cases, we comment again based upon state compensation
program practice. We note preliminarily that a strict definition of personal representative,
combined with the "onefiling-per-family" requirement, are likely to create major difficulties for the DOJ program as well as the families of victims.
In death claims, state compensation programs generally may accept claims from any family
member in close relationship with the victim. This would include spouses, children, and parents
primarily, but also could include siblings, grandparents, step-relatives, guardians, and nonfamily
members residing in the same household with the victim. (Each state's law may contain slight
variations to these eligibility parameters.) There is no requirement that applications be filed by
only one person or one personal representative. In fact, many programs do not even accept claims from "personal representatives" or estate executors/administrators.
When more than one application is received from different family members, it is a
relatively easy matter to consolidate all those applications under one claim or case, since all
family members derive their eligibility from one individual. We would suggest that rather than
struggle in determining who is the appropriate "personal representative," which may not be a
matter settled in some estates for same period of time, DOJ should instead allow applications from
more than one family member, and then consolidate all such claims into one "filing" relating to a
single death, This consolidation of applications into one "filing" or claim should be sufficient to meet the letter of the law.
In this regard, we urge a broad interpretation of the term "personal representative."
Certainly, it is not apparent that Congress intended this applicant to be only an official
court-appointed estate administrator or executor, It would serve victims' interests, as well as
DOJ, if a personal representative could include anyone who reasonably can establish eligibility
for benefits deriving from an individual's death.
Otherwise, DOJ may spend significant time trying to determine who the sole applicant should be,
when there may be more than one set of family members dependent on the deceased (wife and
ex-wife, for example) - and who therefore are equally eligible to receive benefits.
We emphasize the difficulty DOJ would face in ensuring that benefits go to appropriate
family members, if payment could be made only to one individual or "personal representative." It
is obvious that such an individual may be unable or unwilling to perform the responsibility of
dividing up benefits to different individuals, who may neither be in contact or cooperative with the
personal representative.
DOJ's paying only one individual might spawn litigation between family members not because of
DOJ benefits, but rather because DOJ practice did not simply pay people directly. We believe
that following standard state compensation program practice would allow DOJ to pay benefits
directly to or on behalf of multiple family members who are eligible to receive such benefits.
In short, we believe it would be fairer for each victim and family deriving eligibility from
a deceased victim to be allowed to apply. In reality, of cause, most victims will only have one
family; and that family will submit only one application. But in those cases where multiple family
members could be eligible, it is fairer to allow more than one application rather than limit the
application process to one person or representative. Again, we believe DOJ could consolidate
these separate applications into one "filing" or claim, for purposes of the law's requirements.
We do not believe that the personal representative should be burdened with notifying all
individuals who might receive benefits because of an individual's death; neither should this be the
job of the compensation program. The personal representative should not be burdened with
seeking signed statements waiving the right to litigation. However, it would be fair and consistent
with DOJ's need to publicize its program to all potential beneficiaries, for the claimant or personal
representative to provide a list of relatives who have suffered losses because of the terrorist victimization of the direct victim.
#6 Nature and Amount of Compensation
At a minimum, economic losses should include those payable by state compensation pro-
grams; medical and dental expenses; counseling expenses for family, including spouses, parents,
children (and step-relatives) as well as others living in the same household with any deceased vic-
tim; lost wages for injured workers unable to work; lost support for dependents; funerals and
memorials. We emphasize the need to address counseling expenses for "secondary victims" such
as close family and household members.
Many of DOJ's questions on the nature and amount of compensation relate to noneconomic
losses, and we can provide little assistance in this area, since state compensation programs do not provide for these types of losses.
However, we believe that it should be possible to develop consistent methodologies for
determining noneconomic losses, relying on standard practice in personal-injury litigation, and that
such information be communicated to potential claimants and the public. Consistency in paying
benefits if obviously a goal to strive toward, recognizing that some variations may exist between individuals and families similarly situated.
With regard to collateral sources, federal law is clear that state compensation programs
are secondary payers with regard to the DOJ compensation program, and therefore should not be
considered collateral resources to the DOJ program. As amended in the Antiterrorism legislation
of October of this year, 42 U.S.C. 10602(e), found in the Victims of Crime Act, reads as follows:
"(e) Relationship to certain Federal programs.
Notwithstanding any other law, if the compensation paid by an eligible crime victim compensation
program [this refers to state compensation programs] would cover costs that a Federal program,
including the program established under title IV of Public Law 107-42 [the Federal 9/11
compensation program], or a Federally financed State or local program, would otherwise pay --
(1) such crime victim compensation program shall not pay that compensation; and
(2) the other program shall make its payment without regard to the existence of the crime victim compensation program."
This makes clear that states "shall not pay" compensation when the new 9/11 Fund can pay
so for victims that file claims with the federal compensation program for expenses that either the
state compensation program or the federal compensation program could pay, the federal
compensation program should do the paying.
We believe further that the law requires the DOJ program to reimburse states for payments
already made to victims that also apply to the DOJ program for benefits that would be paid by the
DOJ program. Reimbursement of state compensation programs for payments made to claimants
filing with the DOJ program could be facilitated in two ways:
1. By seeking this information from claimants, when they provide information on their
application to the DOJ program about other collateral resources they've received. It would be incumbent upon the DOJ program not only to ensure that this payment from state compensation programs not be duplicated in a payment to the victim, but also that the DOJ program make payment for this expenses directly to the state compensation program in reimbursement.
2. The state compensation programs could provide information to the DOJ program about
claimants and the benefits paid to them, so that these benefits could then be reimbursed directly to the state programs.
With regard to other collateral resources, standard practice among state compensation
programs is to regard medical insurance and other state, federal, and local government benefits as collateral resources. The states are split with regard to considering life insurance as collateral;
some do, and some don't, and some exempt a certain amount of life insurance while counting
amounts above that level (the first $50,000 of life insurance, for example, may not be counted as collateral in some states).
States generally do not count charitable donations as collateral, and do not reduce awards because of such donations. That is the approach governing the states chiefly involved in helping victims of the 9/11 attacks (specifically New York, Pennsylvania, Virginia, and California). We believe it wise for the DOJ program also to disregard charitable contributions to victims.
State compensation programs also do not deduct collateral resources unless there is
certainty that payment has been made or will be made soon. Simply being "entitled" to a benefit that may not be forthcoming is of little value to a claimant.
Fraud is always possible, particularly when benefits are large. States ascertain whether applications are fraudulent through a thorough review or documentation presented, and discourage such attempts through a clear statement on the claim form or instructions of the penalties for fraud.
We appreciate this opportunity to provide comments, and we offer any practical assistance we and our member programs can provide in fashioning and operating the DOJ 9/11 compensation program.