[House Report 111-560]
[From the U.S. Government Publishing Office]
111th Congress Rept. 111-560
HOUSE OF REPRESENTATIVES
2d Session Part 2
======================================================================
JAMES ZADROGA 9/11 HEALTH AND COMPENSATION ACT OF 2010
_______
July 22, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 847]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 847) to amend the Public Health Service Act to extend and
improve protections and services to individuals directly
impacted by the terrorist attack in New York City on September
11, 2001, and for other purposes, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 3
Purpose and Summary.............................................. 30
Background and Need for the Legislation.......................... 30
Hearings......................................................... 34
Committee Consideration.......................................... 35
Committee Votes.................................................. 35
Committee Oversight Findings..................................... 36
New Budget Authority and Tax Expenditures........................ 37
Congressional Budget Office Cost Estimate........................ 37
Performance Goals and Objectives................................. 50
Constitutional Authority Statement............................... 50
Advisory on Earmarks............................................. 50
Section-by-Section Analysis...................................... 50
Changes in Existing Law Made by the Bill, as Reported............ 53
Dissenting Views................................................. 59
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``James Zadroga 9/11
Health and Compensation Act of 2010''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
TITLE I--WORLD TRADE CENTER HEALTH PROGRAM
Sec. 101. World Trade Center Health Program.
``TITLE XXX--WORLD TRADE CENTER HEALTH PROGRAM
``Subtitle A--Establishment of Program; Advisory and Steering
Committees
``Sec. 3001. Establishment of World Trade Center Health Program
within NIOSH.
``Sec. 3002. WTC Health Program Scientific/Technical Advisory
Committee.
``Sec. 3003. WTC Health Program Steering Committees.
``Sec. 3004. Community education and outreach.
``Sec. 3005. Uniform data collection.
``Sec. 3006. Centers of excellence.
``Sec. 3007. Entitlement authorities.
``Sec. 3008. Definitions.
``Subtitle B--Program of Monitoring, Initial Health Evaluations, and
Treatment
``Part 1--For WTC Responders
``Sec. 3011. Identification of eligible WTC responders and
provision of WTC-related monitoring services.
``Sec. 3012. Treatment of certified eligible WTC responders for
WTC-related health conditions.
``Part 2--Community Program
``Sec. 3021. Identification and initial health evaluation of
eligible WTC community members.
``Sec. 3022. Followup monitoring and treatment of certified
eligible WTC community members for WTC-related
health conditions.
``Sec. 3023. Followup monitoring and treatment of other
individuals with WTC-related health conditions.
``Part 3--National Arrangement for Benefits for Eligible Individuals
Outside New York
``Sec. 3031. National arrangement for benefits for eligible
individuals outside New York.
``Subtitle C--Research Into Conditions
``Sec. 3041. Research regarding certain health conditions
related to September 11 terrorist attacks in
New York City.
``Subtitle D--Programs of the New York City Department of Health and
Mental Hygiene
``Sec. 3051. World Trade Center Health Registry.
``Sec. 3052. Mental health services.
TITLE II--SEPTEMBER 11TH VICTIM COMPENSATION FUND OF 2001
Sec. 201. Definitions.
Sec. 202. Extended and expanded eligibility for compensation.
Sec. 203. Requirement to update regulations.
Sec. 204. Limited liability for certain claims.
Sec. 205. Funding; attorney fees.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Thousands of rescue workers who responded to the areas
devastated by the terrorist attacks of September 11, local
residents, office and area workers, and school children
continue to suffer significant medical problems as a result of
compromised air quality and the release of other toxins from
the attack sites.
(2) In a September 2006 peer-reviewed study conducted by the
World Trade Center Medical Monitoring Program, of 9,500 World
Trade Center responders, almost 70 percent of World Trade
Center responders had a new or worsened respiratory symptom
that developed during or after their time working at the World
Trade Center; among the responders who were asymptomatic before
9/11, 61 percent developed respiratory symptoms while working
at the World Trade Center; close to 60 percent still had a new
or worsened respiratory symptom at the time of their
examination; one-third had abnormal pulmonary function tests;
and severe respiratory conditions including pneumonia were
significantly more common in the 6 months after 9/11 than in
the prior 6 months.
(3) An April 2006 study documented that, on average, a New
York City firefighter who responded to the World Trade Center
has experienced a loss of 12 years of lung capacity.
(4) A peer-reviewed study of residents who lived near the
World Trade Center titled ``The World Trade Center Residents'
Respiratory Health Study: New Onset Respiratory Symptoms and
Pulmonary Function'', found that data demonstrated a three-fold
increase in new-onset, persistent lower respiratory symptoms in
residents near the former World Trade Center as compared to a
control population.
(5) Previous research on the health impacts of the
devastation caused by the September 11 terrorist attacks has
shown relationships between the air quality from Ground Zero
and a host of health impacts, including lower pregnancy rates,
higher rates of respiratory and lung disorders, and a variety
of post-disaster mental health conditions (including
posttraumatic stress disorder) in workers and residents near
Ground Zero.
(6) A variety of tests conducted by independent scientists
have concluded that significant WTC contamination settled in
indoor environments surrounding the disaster site. The
Environmental Protection Agency's (EPA) cleanup programs for
indoor residential spaces, in 2003 and 2005, though limited,
are an acknowledgment that indoor contamination continued after
the WTC attacks.
(7) At the request of the Department of Energy, the Davis
DELTA Group at the University of California conducted outdoor
dust sampling in October 2001 at Varick and Houston Streets
(approximately 1.2 miles north of Ground Zero) and found that
the contamination from the World Trade Center ``outdid even the
worst pollution from the Kuwait oil fields fires''. Further,
the United States Geological Survey (USGS) reported on November
27, 2001, that dust samples collected from indoor surfaces
registered at levels that were ``as caustic as liquid drain
cleaners''.
(8) According to both the EPA's own Inspector General's (EPA
IG) report of August 21, 2003 and General Accountability
Offices's (GAO) report of September 2007, no comprehensive
program has ever been conducted in order to characterize the
full extent of WTC contamination, and therefore the full impact
of that contamination--geographic or otherwise--remains
unknown.
(9) Such reports found that there has never been a
comprehensive program to remediate WTC toxins from indoor
spaces. Thus, area residents, workers and students may continue
to be exposed to WTC contamination in their homes, workplaces
and schools.
(10) Because of the failure to release federally appropriated
funds for community care, a lack of sufficient outreach, the
fact that many community members are receiving care from
physicians outside the current City-funded World Trade Center
Environmental Health Center program and thus fall outside data
collection efforts, and other factors, the number of community
members being treated at the World Trade Center Environmental
Health Center underrepresents the total number in the community
that have been affected by exposure to Ground Zero toxins.
(11) Research by Columbia University's Center for Children's
Environmental Health has shown negative health effects on
babies born to women living within 2 miles of the World Trade
Center in the month following 9/11.
(12) Federal funding allocated for the monitoring of rescue
workers' health is not sufficient to ensure the long-term study
of health impacts of September 11.
(13) A significant portion of those who have developed health
problems as result of exposures to airborne toxins or other
hazards resulting from the September 11, 2001, attacks on the
World Trade Center have no health insurance, have lost their
health insurance as a result of the attacks, or have inadequate
health insurance.
(14) The Federal program to provide medical treatments to
those who responded to the September 11 aftermath, and who
continue to experience health problems as a result, was finally
established more than five years after the attacks, but has no
certain long-term funding.
(15) Rescue workers and volunteers seeking workers'
compensation have reported that their applications have been
denied, delayed for months, or redirected, instead of receiving
assistance in a timely and supportive manner.
(16) A February 2007 report released by the City of New York
estimated that approximately 410,000 people were the most
heavily exposed to the environmental hazards and trauma of the
September 11 terrorist attacks. More than 30 percent of the
Fire Department of the City of New York first responders were
still experiencing some respiratory symptoms more than five
years after the attacks and according to the report, 59 percent
of those seen by the WTC Environmental Health Center at
Bellevue Hospital (which serves community members) are without
insurance and 65 percent have incomes less than $15,000 per
year. The report also found a need to continue and expand
mental health services.
(17) Since the 5th anniversary of the attack (September 11,
2006), hundreds of workers a month have been signing up with
the monitoring and treatment programs.
(18) In April 2008, the Department of Health and Human
Services reported to Congress that in fiscal year 2007 11,359
patients received medical treatment in the existing WTC
Responder Medical and Treatment program for WTC-related health
problems, and that number of responders who need treatment and
the severity of health problems is expected to increase.
(19) The September 11 Victim Compensation Fund of 2001 was
established to provide compensation to individuals who were
physically injured or killed as a result of the terrorist-
related aircraft crashes of September 11, 2001.
(20) The deadline for filing claims for compensation under
the Victim Compensation Fund was December 22, 2003.
(21) Some individuals did not know they were eligible to file
claims for compensation for injuries or did not know they had
suffered physical harm as a result of the terrorist-related
aircraft crashes until after the December 22, 2003, deadline.
(22) Further research is needed to evaluate more
comprehensively the extent of the health impacts of September
11, including research for emerging health problems such as
cancer, which have been predicted.
(23) Research is needed regarding possible treatment for the
illnesses and injuries of September 11.
(24) The Federal response to medical and financial issues
arising from the September 11 response efforts needs a
comprehensive, coordinated long-term response in order to meet
the needs of all the individuals who were exposed to the toxins
of Ground Zero and are suffering health problems from the
disaster.
(25) The failure to extend the appointment of Dr. John Howard
as Director of the National Institute for Occupational Safety
and Health in July 2008 is not in the interests of the
administration of such Institute nor the continued operation of
the World Trade Center Medical Monitoring and Treatment Program
which he has headed, and the Secretary of Health and Human
Services should reconsider extending such appointment.
TITLE I--WORLD TRADE CENTER HEALTH PROGRAM
SEC. 101. WORLD TRADE CENTER HEALTH PROGRAM.
The Public Health Service Act is amended by adding at the end the
following new title:
``TITLE XXX--WORLD TRADE CENTER HEALTH PROGRAM
``Subtitle A--Establishment of Program; Advisory and Steering
Committees
``SEC. 3001. ESTABLISHMENT OF WORLD TRADE CENTER HEALTH PROGRAM WITHIN
NIOSH.
``(a) In General.--There is hereby established within the National
Institute for Occupational Safety and Health a program to be known as
the `World Trade Center Health Program' (in this title referred to as
the `WTC program') to provide--
``(1) medical monitoring and treatment benefits to eligible
emergency responders and recovery and clean-up workers
(including those who are Federal employees) who responded to
the September 11, 2001, terrorist attacks on the World Trade
Center; and
``(2) initial health evaluation, monitoring, and treatment
benefits to residents and other building occupants and area
workers in New York City who were directly impacted and
adversely affected by such attacks.
``(b) Components of Program.--The WTC program includes the following
components:
``(1) Medical monitoring for responders.--Medical monitoring
under section 3011, including clinical examinations and long-
term health monitoring and analysis for individuals who were
likely to have been exposed to airborne toxins that were
released, or to other hazards, as a result of the September 11,
2001, terrorist attacks on the World Trade Center.
``(2) Initial health evaluation for community members.--An
initial health evaluation under section 3021, including an
evaluation to determine eligibility for followup monitoring and
treatment.
``(3) Follow-up monitoring and treatment for wtc-related
conditions for responders and community members.--Provision
under sections 3012, 3022, and 3023 of follow-up monitoring and
treatment and payment, subject to the provisions of subsection
(d), for all medically necessary health and mental health care
expenses (including necessary prescription drugs) of
individuals with a WTC-related health condition.
``(4) Outreach.--Establishment under section 3004 of an
outreach program to potentially eligible individuals concerning
the benefits under this title.
``(5) Uniform data collection.--Collection under section 3005
of health and mental health data on individuals receiving
monitoring or treatment benefits, using a uniform system of
data collection.
``(6) Research on wtc conditions.--Establishment under
subtitle C of a research program on health conditions resulting
from the September 11, 2001, terrorist attacks on the World
Trade Center.
``(c) No Cost-sharing.--Monitoring and treatment benefits and initial
health evaluation benefits are provided under subtitle B without any
deductibles, copayments, or other cost-sharing to an eligible WTC
responder or any eligible WTC community member.
``(d) Payor.--
``(1) In general.--Except as provided in paragraphs (2) and
(3), the cost of monitoring and treatment benefits and initial
health evaluation benefits provided under subtitle B shall be
paid for by the WTC program.
``(2) Workers' compensation payment.--
``(A) In general.--Except as provided in subparagraph
(B), payment for treatment under subtitle B of a WTC-
related condition in an individual that is work-related
shall be reduced or recouped to the extent that the
Secretary determines that payment has been made, or can
reasonably be expected to be made, under a workers'
compensation law or plan of the United States or a
State, or other work-related injury or illness benefit
plan of the employer of such individual, for such
treatment. The provisions of clauses (iii), (iv), (v),
and (vi) of paragraph (2)(B) of section 1862(b) of the
Social Security Act (42 U.S.C. 1395y(b)(2)) and
paragraph (3) of such section shall apply to the
recoupment under this paragraph of a payment to the WTC
program with respect to a workers' compensation law or
plan, or other work-related injury or illness plan of
the employer involved, and such individual in the same
manner as such provisions apply to the reimbursement of
a payment under section 1862(b)(2) of such Act to the
Secretary, with respect to such a law or plan and an
individual entitled to benefits under title XVIII of
such Act.
``(B) Exception.--If the WTC Program Administrator
certifies that the City of New York has contributed the
matching contribution required under section 3006(a)(3)
for a 12-month period (specified by the WTC Program
Administrator), subparagraph (A) shall not apply for
that 12-month period with respect to a workers'
compensation law or plan, including line of duty
compensation, to which the City is obligated to make
payments.
``(3) Health insurance coverage.--
``(A) In general.--In the case of an individual who
has a WTC-related condition that is not work-related
and has health coverage for such condition through any
public or private health plan, the provisions of
section 1862(b) of the Social Security Act (42 U.S.C.
1395y(b)) shall apply to such a health plan and such
individual in the same manner as they apply to a group
health plan and an individual entitled to benefits
under title XVIII of such Act pursuant to section
226(a). Any costs for items and services covered under
such plan that are not reimbursed by such health plan,
due to the application of deductibles, copayments,
coinsurance, other cost-sharing, or otherwise, are
reimbursable under this title to the extent that they
are covered under the WTC program.
``(B) Recovery by individual providers.--Nothing in
subparagraph (A) shall be construed as requiring an
entity providing monitoring and treatment under this
title to seek reimbursement under a health plan with
which the entity has no contract for reimbursement.
``(4) Work-related described.--For the purposes of this
subsection, a WTC-related condition shall be treated as a
condition that is work-related if--
``(A) the condition is diagnosed in an eligible WTC
responder, or in an individual who qualifies as an
eligible WTC community member on the basis of being a
rescue, recovery, or clean-up worker; or
``(B) with respect to the condition the individual
has filed and had established a claim under a workers'
compensation law or plan of the United States or a
State, or other work-related injury or illness benefit
plan of the employer of such individual.
``(e) Quality Assurance and Monitoring of Clinical Expenditures.--
``(1) Quality assurance.--The WTC Program Administrator
working with the Clinical Centers of Excellence shall develop
and implement a quality assurance program for the medical
monitoring and treatment delivered by such Centers of
Excellence and any other participating health care providers.
Such program shall include--
``(A) adherence to medical monitoring and treatment
protocols;
``(B) appropriate diagnostic and treatment referrals
for participants;
``(C) prompt communication of test results to
participants; and
``(D) such other elements as the Administrator
specifies in consultation with the Clinical Centers of
Excellence.
``(2) Fraud prevention.--The WTC Program Administrator shall
develop and implement a program to review the program's health
care expenditures to detect fraudulent or duplicate billing and
payment for inappropriate services. Such program shall be
similar to current methods used in connection with the Medicare
program under title XVIII of the Social Security Act. This
title is a Federal health care program (as defined in section
1128B(f) of such Act) and is a health plan (as defined in
section 1128C(c) of such Act) for purposes of applying sections
1128 through 1128E of such Act.
``(f) WTC Program Administration.--The WTC program shall be
administered by the Director of the National Institute for Occupational
Safety and Health, or a designee of such Director.
``(g) Annual Program Report.--
``(1) In general.--Not later than 6 months after the end of
each fiscal year in which the WTC program is in operation, the
WTC Program Administrator shall submit an annual report to the
Congress on the operations of this title for such fiscal year
and for the entire period of operation of the program.
``(2) Contents of report.--Each annual report under paragraph
(1) shall include the following:
``(A) Eligible individuals.--Information for each
clinical program described in paragraph (3)--
``(i) on the number of individuals who
applied for certification under subtitle B and
the number of such individuals who were so
certified;
``(ii) of the individuals who were certified,
on the number who received medical monitoring
under the program and the number of such
individuals who received medical treatment
under the program;
``(iii) with respect to individuals so
certified who received such treatment, on the
WTC-related health conditions for which they
were treated; and
``(iv) on the projected number of individuals
who will be certified under subtitle B in the
succeeding fiscal year.
``(B) Monitoring, initial health evaluation, and
treatment costs.--For each clinical program so
described--
``(i) information on the costs of monitoring
and initial health evaluation and the costs of
treatment and on the estimated costs of such
monitoring, evaluation, and treatment in the
succeeding fiscal year; and
``(ii) an estimate of the cost of medical
treatment for WTC-related conditions that have
been paid for or reimbursed by workers'
compensation, by public or private health
plans, or by the City of New York under section
3012(c)(4).
``(C) Administrative costs.--Information on the cost
of administering the program, including costs of
program support, data collection and analysis, and
research conducted under the program.
``(D) Administrative experience.--Information on the
administrative performance of the program, including--
``(i) the performance of the program in
providing timely evaluation of and treatment to
eligible individuals; and
``(ii) a list of the Clinical Centers of
Excellence and other providers that are
participating in the program.
``(E) Scientific reports.--A summary of the findings
of any new scientific reports or studies on the health
effects associated with WTC center exposures, including
the findings of research conducted under section
3041(a).
``(F) Advisory committee recommendations.--A list of
recommendations by the WTC Scientific/Technical
Advisory Committee on additional WTC program
eligibility criteria and on additional WTC-related
health conditions and the action of the WTC Program
Administrator concerning each such recommendation.
``(3) Separate clinical programs described.--In paragraph
(2), each of the following shall be treated as a separate
clinical program of the WTC program:
``(A) FDNY responders.--The benefits provided for
eligible WTC responders described in section
3006(b)(1)(A).
``(B) Other eligible wtc responders.--The benefits
provided for eligible WTC responders not described in
subparagraph (A).
``(C) Eligible wtc community members.--The benefits
provided for eligible WTC community members in section
3006(b)(1)(C).
``(h) Notification to Congress When Reach 80 Percent of Eligibility
Numerical Limits.--The WTC Program Administrator shall promptly notify
the Congress--
``(1) when the number of certifications for eligible WTC
responders subject to the limit established under section
3011(a)(5) has reached 80 percent of such limit; and
``(2) when the number of certifications for eligible WTC
community members subject to the limit established under
section 3021(a)(5) has reached 80 percent of such limit.
``(i) GAO Report.--Not later than 3 years after the date of the
enactment of this Act, the Comptroller General of the United States
shall submit to the Congress a report on the costs of the monitoring
and treatment programs provided under this title.
``(j) NYC Recommendations.--The City of New York may make
recommendations to the WTC Program Administrator on ways to improve the
monitoring and treatment programs under this title for both eligible
WTC responders and eligible WTC community members.
``SEC. 3002. WTC HEALTH PROGRAM SCIENTIFIC/TECHNICAL ADVISORY
COMMITTEE.
``(a) Establishment.--The WTC Program Administrator shall establish
an advisory committee to be known as the WTC Health Program Scientific/
Technical Advisory Committee (in this section referred to as the
`Advisory Committee') to review scientific and medical evidence and to
make recommendations to the Administrator on additional WTC program
eligibility criteria and on additional WTC-related health conditions.
``(b) Composition.--The WTC Program Administrator shall appoint the
members of the Advisory Committee and shall include at least--
``(1) 4 occupational physicians, at least two of whom have
experience treating WTC rescue and recovery workers;
``(2) 1 physician with expertise in pulmonary medicine;
``(3) 2 environmental medicine or environmental health
specialists;
``(4) 2 representatives of eligible WTC responders;
``(5) 2 representatives of WTC community members;
``(6) an industrial hygienist;
``(7) a toxicologist;
``(8) an epidemiologist; and
``(9) a mental health professional.
``(c) Meetings.--The Advisory Committee shall meet at such frequency
as may be required to carry out its duties.
``(d) Reports.--The WTC Program Administrator shall provide for
publication of recommendations of the Advisory Committee on the public
website established for the WTC program.
``(e) Authorization of Appropriations.--For the purpose of carrying
out this section, there are authorized to be appropriated such sums as
may be necessary, not to exceed $100,000, for each fiscal year
beginning with fiscal year 2009.
``(f) Duration.--Notwithstanding any other provision of law, the
Advisory Committee shall continue in operation during the period in
which the WTC program is in operation.
``(g) Application of FACA.--Except as otherwise specifically
provided, the Advisory Committee shall be subject to the Federal
Advisory Committee Act.
``SEC. 3003. WTC HEALTH PROGRAM STEERING COMMITTEES.
``(a) Establishment.--The WTC Program Administrator shall establish
two steering committees (each in this section referred to as a
`Steering Committee') as follows:
``(1) WTC responders steering committee.--One steering
committee, to be known as the WTC Responders Steering
Committee, for the purpose of facilitating the coordination of
medical monitoring and treatment programs for the eligible WTC
responders under part 1 of subtitle B.
``(2) WTC community program steering committee.--One steering
committee, to be known as the WTC Community Program Steering
Committee, for the purpose of facilitating the coordination of
initial health evaluations, monitoring, and treatment programs
for eligible WTC community members under part 2 of subtitle B.
``(b) Membership.--
``(1) Initial membership of wtc responders steering
committee.--The WTC Responders Steering Committee shall
initially be composed of members of the WTC Monitoring and
Treatment Program Steering Committee (as in existence on the
day before the date of the enactment of this title). In
addition, the committee membership shall include--
``(A) a representative of the Police Commissioner of
the City of New York;
``(B) a representative of the Department of Health of
the City of New York;
``(C) a representative of another agency of the City
of New York, selected by the Mayor of New York City,
which had a large number of non-uniformed City workers
who responded to the WTC disaster; and
``(D) three representatives of eligible WTC
responders;
in order that eligible WTC responders constitute half the
members of the Steering Committee.
``(2) Initial membership of wtc community program steering
committee.--
``(A) In general.--The WTC Community Program Steering
Committee shall initially be composed of members of the
WTC Environmental Health Center Community Advisory
Committee (as in existence on the day before the date
of the enactment of this title) and shall initially
have, as voting members, the following:
``(i) 11 representatives of the affected
populations of residents, students, area
workers, and other community members.
``(ii) The Medical Director of the WTC
Environmental Health Center.
``(iii) The Executive Director of the WTC
Environmental Health Center.
``(iv) Three physicians, one each
representing the three WTC Environmental Health
Center treatment sites of Bellevue Hospital
Center, Gouverneur Healthcare Services, and
Elmhurst Hospital Center.
``(v) Five specialists with WTC related
expertise or experience in treating non-
responder WTC diseases, such as a pediatrician,
an epidemiologist, a psychiatrist or
psychologist, an environmental/occupational
specialists or a social worker from a WTC
Environmental Health Center treatment site, or
other relevant specialists.
``(vi) A representative of the Department of
Health and Mental Hygiene of the City of New
York.
``(B) Appointments.--
``(i) WTC ehc community advisory committee.--
The WTC Environmental Health Center Community
Advisory Committee as in existence on the date
of the enactment of this title shall nominate
members for positions described in subparagraph
(A)(i).
``(ii) NYC health and hospitals
corporation.--The New York City Health and
Hospitals Corporation shall nominate members
for positions described in clauses (iv) and (v)
of subparagraph (A).
``(iii) Timing.--Nominations under clauses
(i) and (ii) shall be recommended to the WTC
Program Administrator not later than 60 days
after the date of the enactment of this title.
``(iv) Appointment.--The WTC Program
Administrator shall appoint members of the WTC
Community Program Steering Committee not later
than 90 days after the date of the enactment of
this title.
``(v) General representatives.--Of the
members appointed under subparagraph (A)(i)--
``(I) the representation shall
reflect the broad and diverse WTC-
affected populations and constituencies
and the diversity of impacted
neighborhoods, including residents,
hard-to-reach populations, students,
area workers, school parents,
community-based organizations,
Community Boards, WTC Environmental
Health Center patients, labor unions,
and labor advocacy organizations; and
``(II) no one individual organization
can have more than one representative.
``(3) Additional appointments.--Each Steering Committee may
appoint, if approved by a majority of voting members of the
Committee, additional members to the Committee.
``(4) Vacancies.--A vacancy in a Steering Committee shall be
filled by the Steering Committee, subject to the approval of
the WTC Program Administrator, so long as--
``(A) in the case of the WTC Responders Steering
Committee, the composition of the Committee includes
representatives of eligible WTC responders and
representatives of each Clinical Center of Excellence
and each Coordinating Center of Excellence that serves
eligible WTC responders and such composition has
eligible WTC responders constituting half of the
membership of the Steering Committee; or
``(B) in the case of the WTC Community Program
Steering Committee, the composition of the Committee
includes representatives of eligible WTC community
members and representatives of each Clinical Center of
Excellence and each Coordinating Center of Excellence
that serves eligible WTC community members and the
nominating process is consistent with paragraph (2)(B).
``(5) Co-chairs of wtc community program steering
committee.--The WTC Community Program Steering Committee shall
have two Co-Chairs as follows:
``(A) Community/Labor co-chair.--A Community/Labor
Co-Chair who shall be chosen by the community and
labor-based members of the Steering Committee.
``(B) Environmental health clinic co-chair.--A WTC
Environmental Health Clinic Co-Chair who shall be
chosen by the WTC Environmental Health Center members
on the Steering Committee.
``(c) Relation to FACA.--Each Steering Committee shall not be subject
to the Federal Advisory Committee Act.
``(d) Meetings.--Each Steering Committee shall meet at such frequency
necessary to carry out its duties, but not less than 4 times each
calendar year and at least two such meetings each year shall be a joint
meeting with the voting membership of the other Steering Committee for
the purpose of exchanging information regarding the WTC program.
``(e) Duration.--Notwithstanding any other provision of law, each
Steering Committee shall continue in operation during the period in
which the WTC program is in operation.
``SEC. 3004. COMMUNITY EDUCATION AND OUTREACH.
``(a) In General.--The WTC Program Administrator shall institute a
program that provides education and outreach on the existence and
availability of services under the WTC program. The outreach and
education program--
``(1) shall include--
``(A) the establishment of a public website with
information about the WTC program;
``(B) meetings with potentially eligible populations;
``(C) development and dissemination of outreach
materials informing people about the program; and
``(D) the establishment of phone information
services; and
``(2) shall be conducted in a manner intended--
``(A) to reach all affected populations; and
``(B) to include materials for culturally and
linguistically diverse populations.
``(b) Partnerships.--To the greatest extent possible, in carrying out
this section, the WTC Program Administrator shall enter into
partnerships with local governments and organizations with experience
performing outreach to the affected populations, including community
and labor-based organizations.
``SEC. 3005. UNIFORM DATA COLLECTION.
``(a) In General.--The WTC Program Administrator shall provide for
the uniform collection of data (and analysis of data and regular
reports to the Administrator) on the utilization of monitoring and
treatment benefits provided to eligible WTC responders and eligible WTC
community members, the prevalence of WTC-related health conditions, and
the identification of new WTC-related medical conditions. Such data
shall be collected for all individuals provided monitoring or treatment
benefits under subtitle B and regardless of their place of residence or
Clinical Center of Excellence through which the benefits are provided.
``(b) Coordinating Through Centers of Excellence.--Each Clinical
Center of Excellence shall collect data described in subsection (a) and
report such data to the corresponding Coordinating Center of Excellence
for analysis by such Coordinating Center of Excellence.
``(c) Privacy.--The data collection and analysis under this section
shall be conducted in a manner that protects the confidentiality of
individually identifiable health information consistent with applicable
legal requirements.
``SEC. 3006. CENTERS OF EXCELLENCE.
``(a) In General.--
``(1) Contracts with clinical centers of excellence.--The WTC
Program Administrator shall enter into contracts with Clinical
Centers of Excellence specified in subsection (b)(1)--
``(A) for the provision of monitoring and treatment
benefits and initial health evaluation benefits under
subtitle B;
``(B) for the provision of outreach activities to
individuals eligible for such monitoring and treatment
benefits, for initial health evaluation benefits, and
for follow-up to individuals who are enrolled in the
monitoring program;
``(C) for the provision of counseling for benefits
under subtitle B, with respect to WTC-related health
conditions, for individuals eligible for such benefits;
``(D) for the provision of counseling for benefits
for WTC-related health conditions that may be available
under Workers' Compensation or other benefit programs
for work-related injuries or illnesses, health
insurance, disability insurance, or other insurance
plans or through public or private social service
agencies and assisting eligible individuals in applying
for such benefits;
``(E) for the provision of translational and
interpretive services as for program participants who
are not English language proficient; and
``(F) for the collection and reporting of data in
accordance with section 3005.
``(2) Contracts with coordinating centers of excellence.--The
WTC Program Administrator shall enter into contracts with
Coordinating Centers of Excellence specified in subsection
(b)(2)--
``(A) for receiving, analyzing, and reporting to the
WTC Program Administrator on data, in accordance with
section 3005, that has been collected and reported to
such Coordinating Centers by the corresponding Clinical
Centers of Excellence under subsection (d)(3);
``(B) for the development of medical monitoring,
initial health evaluation, and treatment protocols,
with respect to WTC-related health conditions;
``(C) for coordinating the outreach activities
conducted under paragraph (1)(B) by each corresponding
Clinical Center of Excellence;
``(D) for establishing criteria for the credentialing
of medical providers participating in the nationwide
network under section 3031;
``(E) for coordinating and administrating the
activities of the WTC Health Program Steering
Committees established under section 3003(a); and
``(F) for meeting periodically with the corresponding
Clinical Centers of Excellence to obtain input on the
analysis and reporting of data collected under
subparagraph (A) and on the development of medical
monitoring, initial health evaluation, and treatment
protocols under subparagraph (B).
The medical providers under subparagraph (D) shall be selected
by the WTC Program Administrator on the basis of their
experience treating or diagnosing the medical conditions
included in the list of identified WTC-related conditions for
responders and of identified WTC-related conditions for
community members.
``(3) Required participation by new york city in monitoring
and treatment program and costs.--
``(A) In general.--In order for New York City, any
agency or Department thereof, or the New York City
Health and Hospitals Corporation to qualify for a
contract for the provision of monitoring and treatment
benefits and other services under section 3006, New
York City is required to contribute a matching amount
of 10 percent of the amount of the covered monitoring
and treatment payment (as defined in subparagraph (B)).
``(B) Covered monitoring and treatment payment
defined.--For the purposes of this paragraph, the term
`covered monitoring and treatment payment' means
payment under paragraphs (1) and (2), including under
such paragraph as applied under section 3021(b),
3022(a), and 3023, and reimbursement under 3006(c) for
items and services furnished by a Clinical Center of
Excellence or Coordinating Center of Excellence, and
providers designated by the WTC Program under section
3031, after the application of paragraphs (2) and (3)
of section 3001 (d).
``(C) Payment of new york city share of monitoring
and treatment costs.--The WTC Program Administrator
shall--
``(i) bill the amount specified in
subparagraph (A) directly to New York City; and
``(ii) certify periodically, for purposes of
section 3001(d)(2), whether or not New York
City has paid the amount so billed.
``(D) Limitation on required amount.--In no case is
New York City required under this paragraph to
contribute more than a total of $500,000,000 over any
10-year period.
``(b) Centers of Excellence Defined.--
``(1) Clinical center of excellence.--In this title, the term
`Clinical Center of Excellence' means the following:
``(A) For fdny responders.--With respect to an
eligible WTC responder who responded to the 9/11
attacks as an employee of the Fire Department of the
City of New York and who--
``(i) is an active employee of such
Department--
``(I) with respect to monitoring,
such Fire Department; and
``(II) with respect to treatment,
such Fire Department (or such entity as
has entered into a contract with the
Fire Department for treatment of such
responders) or any other Clinical
Center of Excellence described in
subparagraph (B), (C), or (D); or
``(ii) is not an active employee of such
Department, such Fire Department (or such
entity as has entered into a contract with the
Fire Department for monitoring or treatment of
such responders) or any other or any other
Clinical Center of Excellence described in
subparagraph (B), (C), or (D).
``(B) Other eligible wtc responders.--With respect to
other eligible WTC responders, whether or not they
reside in the New York Metropolitan area, the Mt. Sinai
coordinated consortium, Queens College, State
University of New York at Stony Brook, University of
Medicine and Dentistry of New Jersey, and Bellevue
Hospital.
``(C) WTC community members.--With respect to
eligible WTC community members, whether or not they
reside in the New York Metropolitan area, the World
Trade Center Environmental Health Center at Bellevue
Hospital and such hospitals or other facilities,
including but not limited to those within the New York
City Health and Hospitals Corporation, as are
identified by the WTC Program Administrator.
``(D) All eligible wtc responders and eligible wtc
community members.--With respect to all eligible WTC
responders and eligible WTC community members, such
other hospitals or other facilities as are identified
by the WTC Program Administrator.
The WTC Program Administrator shall limit the number of
additional Centers of Excellence identified under subparagraph
(D) to ensure that the participating centers have adequate
experience in the treatment and diagnosis of identified WTC-
related medical conditions.
``(2) Coordinating center of excellence.--In this title, the
term `Coordinating Center of Excellence' means the following:
``(A) For fdny responders.--With respect to an
eligible WTC responder who responded to the 9/11
attacks as an employee of the Fire Department of the
City of New York, such Fire Department.
``(B) Other wtc responders.--With respect to other
eligible WTC responders, the Mt. Sinai coordinated
consortium.
``(C) Wtc community members.--With respect to
eligible WTC community members, the World Trade Center
Environmental Health Center at Bellevue Hospital.
``(3) Corresponding centers.--In this title, a Clinical
Center of Excellence and a Coordinating Center of Excellence
shall be treated as `corresponding' to the extent that such
Clinical Center and Coordinating Center serve the same
population group.
``(c) Reimbursement for Non-treatment, Non-monitoring Program
Costs.--A Clinical or Coordinating Center of Excellence with a contract
under this section shall be reimbursed for the costs of such Center in
carrying out the activities described in subsection (a), other than
those described in subsection (a)(1)(A), subject to the provisions of
section 3001(d), as follows:
``(1) Clinical centers of excellence.--For carrying out
subparagraphs (B) through (F) of subsection (a)(1)--
``(A) Clinical center for fdny responders in new
york.--The Clinical Center of Excellence for FDNY
Responders in New York specified in subsection
(b)(1)(A) shall be reimbursed--
``(i) in the first year of the contract under
this section, $600 per certified eligible WTC
responder in the medical treatment program, and
$300 per certified eligible WTC responder in
the monitoring program; and
``(ii) in each subsequent contract year,
subject to paragraph (3), at the rates
specified in this subparagraph for the previous
contract year adjusted by the WTC Program
Administrator to reflect the rate of medical
care inflation during the previous contract
year.
``(B) Clinical centers serving other eligible wtc
responders in new york.--A Clinical Center of
Excellence for other WTC responders in New York
specified in subsection (b)(1)(B) shall be reimbursed
the amounts specified in subparagraph (A).
``(C) Clinical centers serving wtc community
members.--A Clinical Center of Excellence for eligible
WTC community members in New York specified in
subsection (b)(1)(C) shall be reimbursed--
``(i) in the first year of the contract under
this section, for each certified eligible WTC
community member in a medical treatment program
enrolled at a non-hospital-based facility,
$600, and for each certified eligible WTC
community member in a medical treatment program
enrolled at a hospital-based facility, $300;
and
``(ii) in each subsequent contract year,
subject to paragraph (3), at the rates
specified in this subparagraph for the previous
contract year adjusted by the WTC Program
Administrator to reflect the rate of medical
care inflation during the previous contract
year.
``(D) Other clinical centers.--A Clinical Center of
Excellence or other providers not described in a
previous subparagraph shall be reimbursed at a rate set
by the WTC Program Administrator.
``(E) Reimbursement rules.--The reimbursement
provided under subparagraphs (A), (B) and (C) shall be
made for each certified eligible WTC responder and for
each WTC community member in the WTC program per year
that the member receives such services, regardless of
the volume or cost of services required.
``(2) Coordinating centers of excellence.--A Coordinating
Centers of Excellence specified in section (a)(2) shall be
reimbursed for the provision of services set forth in this
section at such levels as are established by the WTC Program
Administrator.
``(3) Review of rates.--
``(A) Initial review.--Before the end of the third
contract year of the WTC program, the WTC Program
Administrator shall conduct a review to determine
whether the reimbursement rates set forth in this
subsection provide fair and appropriate reimbursement
for such program services. Based on such review, the
Administrator may, by rule beginning with the fourth
contract year, may modify such rates, taking into
account a reasonable and fair rate for the services
being provided.
``(B) Subsequent reviews.--After the fourth contract
year, the WTC Program Administrator shall conduct
periodic reviews to determine whether the reimbursement
rates in effect under this subsection provide fair and
appropriate reimbursement for such program services.
Based upon such a review, the Administrator may by rule
modify such rates, taking into account a reasonable and
fair rate for the services being provided.
``(C) GAO review.--The Comptroller General of the
United States shall review the WTC Program
Administrator's determinations regarding fair and
appropriate reimbursement for program services under
this paragraph.
``(d) Requirements.--The WTC Program Administrator shall not enter
into a contract with a Clinical Center of Excellence under subsection
(a)(1) unless--
``(1) the Center establishes a formal mechanism for
consulting with and receiving input from representatives of
eligible populations receiving monitoring and treatment
benefits under subtitle B from such Center;
``(2) the Center provides for the coordination of monitoring
and treatment benefits under subtitle B with routine medical
care provided for the treatment of conditions other than WTC-
related health conditions;
``(3) the Center collects and reports to the corresponding
Coordinating Center of Excellence data in accordance with
section 3005;
``(4) the Center has in place safeguards against fraud that
are satisfactory to the Administrator;
``(5) the Center agrees to treat or refer for treatment all
individuals who are eligible WTC responders or eligible WTC
community members with respect to such Center who present
themselves for treatment of a WTC-related health condition;
``(6) the Center has in place safeguards to ensure the
confidentiality of an individual's individually identifiable
health information, including requiring that such information
not be disclosed to the individual's employer without the
authorization of the individual;
``(7) the Center provides assurances that the amounts paid
under subsection (c)(1) are used only for costs incurred in
carrying out the activities described in subsection (a), other
than those described in subsection (a)(1)(A); and
``(8) the Center agrees to meet all the other applicable
requirements of this title, including regulations implementing
such requirements.
``SEC. 3007. ENTITLEMENT AUTHORITIES.
``Subject to subsections (b)(4)(C) and (c)(5) of section 3012,
subtitle B constitutes budget authority in advance of appropriations
Acts and represents the obligation of the Federal Government to provide
for the payment for monitoring, initial health evaluations, and
treatment in accordance with such subtitle and section 3006(c)
constitutes such budget authority and represents the obligation of the
Federal Government to provide for the payment described in such
section.
``SEC. 3008. DEFINITIONS.
``In this title:
``(1) The term `aggravating' means, with respect to a health
condition, a health condition that existed on September 11,
2001, and that, as a result of exposure to airborne toxins, any
other hazard, or any other adverse condition resulting from the
September 11, 2001, terrorist attacks on the World Trade Center
requires medical treatment that is (or will be) in addition to,
more frequent than, or of longer duration than the medical
treatment that would have been required for such condition in
the absence of such exposure.
``(2) The terms `certified eligible WTC responder' and
`certified eligible WTC community member' mean an individual
who has been certified as an eligible WTC responder under
section 3011(a)(4) or an eligible WTC community member under
section 3021(a)(4), respectively.
``(3) The terms `Clinical Center of Excellence' and
`Coordinating Center of Excellence' have the meanings given
such terms in section 3006(b).
``(4) The term `current consortium arrangements' means the
arrangements as in effect on the date of the enactment of this
title between the National Institute for Occupational Safety
and Health and the Mt. Sinai-coordinated consortium and the
Fire Department of the City of New York.
``(5) The terms `eligible WTC responder' and `eligible WTC
community member' are defined in sections 3011(a) and 3021(a),
respectively.
``(6) The term `initial health evaluation' includes, with
respect to an individual, a medical and exposure history, a
physical examination, and additional medical testing as needed
to evaluate whether the individual has a WTC-related health
condition and is eligible for treatment under the WTC program.
``(7) The term `list of identified WTC-related health
conditions' means--
``(A) for eligible WTC responders, the identified
WTC-related health condition for eligible WTC
responders under section 3012(a)(3) or 3012(a)(4); or
``(B) for eligible WTC community members, the
identified WTC-related health condition for WTC
community members under section 3022(b)(1) or
3022(b)(2).
``(8) The term `Mt.-Sinai-coordinated consortium' means the
consortium coordinated by Mt. Sinai hospital in New York City
that coordinates the monitoring and treatment under the current
consortium arrangements for eligible WTC responders other than
with respect to those covered under the arrangement with the
Fire Department of the City of New York.
``(9) The term `New York City disaster area' means the area
within New York City that is--
``(A) the area of Manhattan that is south of Houston
Street; and
``(B) any block in Brooklyn that is wholly or
partially contained within a 1.5-mile radius of the
former World Trade Center site.
``(10) The term `New York metropolitan area' means an area,
specified by the WTC Program Administrator, within which
eligible WTC responders and eligible WTC community members who
reside in such area are reasonably able to access monitoring
and treatment benefits and initial health evaluation benefits
under this title through a Clinical Centers of Excellence
described in subparagraphs (A), (B), or (C) of section
3006(b)(1).
``(11) Any reference to `September 11, 2001' shall be deemed
a reference to the period on such date subsequent to the
terrorist attacks on the World Trade Center on such date.
``(12) The term `September 11, 2001, terrorist attacks on the
World Trade Center' means the terrorist attacks that occurred
on September 11, 2001, in New York City and includes the
aftermath of such attacks.
``(13) The term `WTC Health Program Steering Committee' means
such a Steering Committee established under section 3003.
``(14) The term `WTC Program Administrator' means the
individual responsible under section 3001(f) for the
administration of the WTC program.
``(15) The term `WTC-related health condition' is defined in
section 3012(a).
``(16) The term `WTC Scientific/Technical Advisory Committee'
means such Committee established under section 3002.
``Subtitle B--Program of Monitoring, Initial Health Evaluations, and
Treatment
``PART 1--FOR WTC RESPONDERS
``SEC. 3011. IDENTIFICATION OF ELIGIBLE WTC RESPONDERS AND PROVISION OF
WTC-RELATED MONITORING SERVICES.
``(a) Eligible WTC Responder Defined.--
``(1) In general.--For purposes of this title, the term
`eligible WTC responder' means any of the following
individuals, subject to paragraph (5):
``(A) Currently identified responder.--An individual
who has been identified as eligible for medical
monitoring under the current consortium arrangements
(as defined in section 3008(4)).
``(B) Responder who meets current eligibility
criteria.--An individual who meets the current
eligibility criteria described in paragraph (2).
``(C) Responder who meets modified eligibility
criteria.--An individual who--
``(i) performed rescue, recovery, demolition,
debris cleanup, or other related services in
the New York City disaster area in response to
the September 11, 2001, terrorist attacks on
the World Trade Center, regardless of whether
such services were performed by a State or
Federal employee or member of the National
Guard or otherwise; and
``(ii) meets such eligibility criteria
relating to exposure to airborne toxins, other
hazards, or adverse conditions resulting from
the September 11, 2001, terrorist attacks on
the World Trade Center as the WTC Program
Administrator, after consultation with the WTC
Responders Steering Committee and the WTC
Scientific/Technical Advisory Committee,
determines appropriate.
The WTC Program Administrator shall not modify such
eligibility criteria on or after the date that the
number of certifications for eligible responders has
reached 80 percent of the limit described in paragraph
(5) or on or after the date that the number of
certifications for eligible community members has
reached 80 percent of the limit described in section
3021(a)(5).
``(2) Current eligibility criteria.--The eligibility criteria
described in this paragraph for an individual is that the
individual is described in either of the following categories:
``(A) Fire fighters and related personnel.--The
individual--
``(i) was a member of the Fire Department of
the City of New York (whether fire or emergency
personnel, active or retired) who participated
at least one day in the rescue and recovery
effort at any of the former World Trade sites
(including Ground Zero, Staten Island land
fill, and the NYC Chief Medical Examiner's
office) for any time during the period
beginning on September 11, 2001, and ending on
July 31, 2002; or
``(ii)(I) is a surviving immediate family
member of an individual who was a member of the
Fire Department of the City of New York
(whether fire or emergency personnel, active or
retired) and was killed at the World Trade site
on September 11, 2001; and
``(II) received any treatment for a WTC-
related mental health condition described in
section 3012(a)(1)(B) on or before September 1,
2008.
``(B) Law enforcement officers and wtc rescue,
recovery, and clean-up workers.--The individual--
``(i) worked or volunteered on-site in
rescue, recovery, debris-cleanup or related
support services in lower Manhattan (south of
Canal St.), the Staten Island Landfill, or the
barge loading piers, for at least 4 hours
during the period beginning on September 11,
2001, and ending on September 14, 2001, for at
least 24 hours during the period beginning on
September 11, 2001, and ending on September 30,
2001, or for at least 80 hours during the
period beginning on September 11, 2001, and
ending on July 31, 2002;
``(ii)(I) was a member of the Police
Department of the City of New York (whether
active or retired) or a member of the Port
Authority Police of the Port Authority of New
York and New Jersey (whether active or retired)
who participated on-site in rescue, recovery,
debris clean-up, or related services in lower
Manhattan (south of Canal St.), including
Ground Zero, the Staten Island Landfill or the
barge loading piers, for at least 4 hours
during the period beginning September 11, 2001,
and ending on September 14, 2001;
``(II) participated on-site in rescue,
recovery, debris clean-up, or related services
in at Ground Zero, the Staten Island Landfill
or the barge loading piers, for at least one
day during the period beginning on September
11, 2001, and ending on July 31, 2002;
``(III) participated on-site in rescue,
recovery, debris clean-up, or related services
in lower Manhattan (south of Canal St.) for at
least 24 hours during the period beginning on
September 11, 2001, and ending on September 30,
2001; or
``(IV) participated on-site in rescue,
recovery, debris clean-up, or related services
in lower Manhattan (south of Canal St.) for at
least 80 hours during the period beginning on
September 11, 2001, and ending on July 31,
2002;
``(iii) was an employee of the Office of the
Chief Medical Examiner of the City of New York
involved in the examination and handling of
human remains from the World Trade Center
attacks, or other morgue worker who performed
similar post-September 11 functions for such
Office staff, during the period beginning on
September 11, 2001 and ending on July 31, 2002;
``(iv) was a worker in the Port Authority
Trans-Hudson Corporation tunnel for at least 24
hours during the period beginning on February
1, 2002, and ending on July 1, 2002; or
``(v) was a vehicle-maintenance worker who
was exposed to debris from the former World
Trade Center while retrieving, driving,
cleaning, repairing, and maintaining vehicles
contaminated by airborne toxins from the
September 11, 2001, terrorist attacks on the
World Trade Center during a duration and period
described in subparagraph (A).
``(3) Application process.--The WTC Program Administrator in
consultation with the Coordinating Centers of Excellence shall
establish a process for individuals, other than eligible WTC
responders described in paragraph (1)(A), to apply to be
determined to be eligible WTC responders. Under such process--
``(A) there shall be no fee charged to the applicant
for making an application for such determination;
``(B) the Administrator shall make a determination on
such an application not later than 60 days after the
date of filing the application; and
``(C) an individual who is determined not to be an
eligible WTC responder shall have an opportunity to
appeal such determination before an administrative law
judge in a manner established under such process.
``(4) Certification.--
``(A) In general.--In the case of an individual who
is described in paragraph (1)(A) or who is determined
under paragraph (3) (consistent with paragraph (5)) to
be an eligible WTC responder, the WTC Program
Administrator shall provide an appropriate
certification of such fact and of eligibility for
monitoring and treatment benefits under this part. The
Administrator shall make determinations of eligibility
relating to an applicant's compliance with this title,
including the verification of information submitted in
support of the application, and shall not deny such a
certification to an individual unless the Administrator
determines that--
``(i) based on the application submitted, the
individual does not meet the eligibility
criteria; or
``(ii) the numerical limitation on eligible
WTC responders set forth in paragraph (5) has
been met.
``(B) Timing.--
``(i) Currently identified responders.--In
the case of an individual who is described in
paragraph (1)(A), the WTC Program Administrator
shall provide the certification under
subparagraph (A) not later than 60 days after
the date of the enactment of this title.
``(ii) Other responders.--In the case of
another individual who is determined under
paragraph (3) and consistent with paragraph (5)
to be an eligible WTC responder, the WTC
Program Administrator shall provide the
certification under subparagraph (A) at the
time of the determination.
``(5) Numerical limitation on eligible wtc responders.--
``(A) In general.--The total number of individuals
not described in subparagraph (C) who may qualify as
eligible WTC responders for purposes of this title, and
be certified as eligible WTC responders under paragraph
(4), shall not exceed 15,000, subject to adjustment
under paragraph (6), of which no more than 2,500 may be
individuals certified based on modified eligibility
criteria established under paragraph (1)(C). In
applying the previous sentence, any individual who at
any time so qualifies as an eligible WTC responder
shall be counted against such numerical limitation.
``(B) Process.--In implementing subparagraph (A), the
WTC Program Administrator shall--
``(i) limit the number of certifications
provided under paragraph (4) in accordance with
such subparagraph; and
``(ii) provide priority in such
certifications in the order in which
individuals apply for a determination under
paragraph (3).
``(C) Currently identified responders not counted.--
Individuals described in this subparagraph are
individuals who are described in paragraph (1)(A).
``(6) Potential adjustment in numerical limitations dependent
upon actual spending relative to estimated spending.--
``(A) Initial calculation for fiscal years 2009
through 2011.--If the WTC Program Administrator
determines as of December 1, 2011, that the WTC
expenditure-to-CBO-estimate percentage (as defined in
subparagraph (D)(iii)) for fiscal years 2009 through
2011 does not exceed 90 percent, then, effective
January 1, 2012, the WTC Program Administrator may
increase the numerical limitation under paragraph
(5)(A), the numerical limitation under section
3021(a)(5), or both, by a number of percentage points
not to exceed the number of percentage points specified
in subparagraph (C) for such period of fiscal years.
``(B) Subsequent calculation for fiscal years 2009
through 2015.--If the Secretary determines as of
December 1, 2015, that the WTC expenditure-to-CBO-
estimate percentages for fiscal years 2009 through 2015
and for fiscal years 2012 through 2015 do not exceed 90
percent, then, effective January 1, 2015, the WTC
Program Administrator may increase the numerical
limitation under paragraph (5)(A), the numerical
limitation under section 3021(a)(5), or both, as in
effect after the application of subparagraph (A), by a
number of percentage points not to exceed twice the
lesser of--
``(i) the number of percentage points
specified in subparagraph (C) for fiscal years
2009 through 2012, or
``(ii) the number of percentage points
specified in subparagraph (C) for fiscal years
2012 through 2015.
``(C) Maximum percentage increase in numerical
limitations for period of fiscal years.--The number of
percentage points specified in this clause for a period
of fiscal years is--
``(i) 100 percentage points, multiplied by
``(ii) one minus a fraction the numerator of
which is the net Federal WTC spending for such
period, and the denominator of which is the CBO
WTC spending estimate under this title for such
period.
``(D) Definitions.--For purposes of this paragraph:
``(i) Net federal spending.--The term `net
Federal WTC spending' means, with respect to a
period of fiscal years, the net Federal
spending under this title for such fiscal
years.
``(ii) CBO wtc spending estimate under this
title.--The term `CBO WTC medical spending
estimate under this title' means, with respect
to--
``(I) fiscal years 2009 through 2011,
$900,000,000;
``(II) fiscal years 2012 through
2015, $1,890,000,000; and
``(III) fiscal years 2009 through
2015, the sum of the amounts specified
in subclauses (I) and (II).
``(iii) WTC expenditure-to-cbo-estimate
percentage.--The term `WTC expenditure-to-
estimate percentage' means, with respect to a
period of fiscal years, the ratio (expressed as
a percentage) of--
``(I) the net Federal WTC spending
for such period, to
``(II) the CBO WTC spending estimate
under this title for such period.
``(b) Monitoring Benefits.--
``(1) In general.--In the case of an eligible WTC responder
under section 3011(a)(4) (other than one described in
subsection (a)(2)(A)(ii)), the WTC program shall provide for
monitoring benefits that include medical monitoring consistent
with protocols approved by the WTC Program Administrator and
including clinical examinations and long-term health monitoring
and analysis. In the case of an eligible WTC responder who is
an active member of the Fire Department of the City of New
York, the responder shall receive such benefits as part of the
individual's periodic company medical exams.
``(2) Provision of monitoring benefits.--The monitoring
benefits under paragraph (1) shall be provided through the
Clinical Center of Excellence for the type of individual
involved or, in the case of an individual residing outside the
New York metropolitan area, under an arrangement under section
3031.
``SEC. 3012. TREATMENT OF CERTIFIED ELIGIBLE WTC RESPONDERS FOR WTC-
RELATED HEALTH CONDITIONS.
``(a) WTC-Related Health Condition Defined.--
``(1) In general.--For purposes of this title, the term `WTC-
related health condition' means--
``(A) an illness or health condition for which
exposure to airborne toxins, any other hazard, or any
other adverse condition resulting from the September
11, 2001, terrorist attacks on the World Trade Center,
based on an examination by a medical professional with
experience in treating or diagnosing the medical
conditions included in the applicable list of
identified WTC-related conditions, is substantially
likely to be a significant factor in aggravating,
contributing to, or causing the illness or health
condition, as determined under paragraph (2); or
``(B) a mental health condition for which such
attacks, based on an examination by a medical
professional with experience in treating or diagnosing
the medical conditions included in the applicable list
of identified WTC-related conditions, is substantially
likely be a significant factor in aggravating,
contributing to, or causing the condition, as
determined under paragraph (2).
In the case of an eligible WTC responder described in section
3011(a)(2)(A)(ii), such term only includes the mental health
condition described in subparagraph (B).
``(2) Determination.--The determination of whether the
September 11, 2001, terrorist attacks on the World Trade Center
were substantially likely to be a significant factor in
aggravating, contributing to, or causing an individual's
illness or health condition shall be made based on an
assessment of the following:
``(A) The individual's exposure to airborne toxins,
any other hazard, or any other adverse condition
resulting from the terrorist attacks. Such exposure
shall be--
``(i) evaluated and characterized through the
use of a standardized, population appropriate
questionnaire approved by the Director of the
National Institute for Occupational Safety and
Health; and
``(ii) assessed and documented by a medical
professional with experience in treating or
diagnosing medical conditions included on the
list of identified WTC-related conditions.
``(B) The type of symptoms and temporal sequence of
symptoms. Such symptoms shall be--
``(i) assessed through the use of a
standardized, population appropriate medical
questionnaire approved by Director of the
National Institute for Occupational Safety and
Health and a medical examination; and
``(ii) diagnosed and documented by a medical
professional described in subparagraph (A)(ii).
``(3) List of identified wtc-related health conditions for
certified eligible wtc responders.--For purposes of this title,
the term `identified WTC-related health condition for eligible
WTC responders' means any of the following health conditions:
``(A) Aerodigestive disorders.--
``(i) Interstitial lung diseases.
``(ii) Chronic respiratory disorder-fumes/
vapors.
``(iii) Asthma.
``(iv) Reactive airways dysfunction syndrome
(RADS).
``(v) WTC-exacerbated chronic obstructive
pulmonary disease (COPD).
``(vi) Chronic cough syndrome.
``(vii) Upper airway hyperreactivity.
``(viii) Chronic rhinosinusitis.
``(ix) Chronic nasopharyngitis.
``(x) Chronic laryngitis.
``(xi) Gastro-esophageal reflux disorder
(GERD).
``(xii) Sleep apnea exacerbated by or related
to a condition described in a previous clause.
``(B) Mental health conditions.--
``(i) Post traumatic stress disorder (PTSD).
``(ii) Major depressive disorder.
``(iii) Panic disorder.
``(iv) Generalized anxiety disorder.
``(v) Anxiety disorder (not otherwise
specified).
``(vi) Depression (not otherwise specified).
``(vii) Acute stress disorder.
``(viii) Dysthymic disorder.
``(ix) Adjustment disorder.
``(x) Substance abuse.
``(xi) V codes (treatments not specifically
related to psychiatric disorders, such as
marital problems, parenting problems etc.),
secondary to another identified WTC-related
health condition for WTC eligible responders.
``(C) Musculoskeletal disorders.--
``(i) Low back pain.
``(ii) Carpal tunnel syndrome (CTS).
``(iii) Other musculoskeletal disorders.
``(4) Addition of identified wtc-related health conditions
for eligible wtc responders.--
``(A) In general.--The WTC Program Administrator may
promulgate regulations to add an illness or health
condition not described in paragraph (3) to be added to
the list of identified WTC-related conditions for
eligible WTC responders. In promulgating such
regulations, the Secretary shall provide for notice and
opportunity for a public hearing and at least 90 days
of public comment. In promulgating such regulations,
the WTC Program Administrator shall take into account
the findings and recommendations of Clinical Centers of
Excellence published in peer reviewed journals in the
determination of whether an additional illness or
health condition, such as cancer, should be added to
the list of identified WTC-related health conditions
for eligible WTC responders.
``(B) Petitions.--Any person (including the WTC
Health Program Scientific/Technical Advisory Committee)
may petition the WTC Program Administrator to propose
regulations described in subparagraph (A). Unless
clearly frivolous, or initiated by such Committee, any
such petition shall be referred to such Committee for
its recommendations. Following--
``(i) receipt of any recommendation of the
Committee; or
``(ii) 180 days after the date of the
referral to the Committee,
whichever occurs first, the WTC Program Administrator
shall conduct a rulemaking proceeding on the matters
proposed in the petition or publish in the Federal
Register a statement of reasons for not conducting such
proceeding.
``(C) Effectiveness.--Any addition under subparagraph
(A) of an illness or health condition shall apply only
with respect to applications for benefits under this
title which are filed after the effective date of such
regulation.
``(D) Role of advisory committee.--Except with
respect to a regulation recommended by the WTC Health
Program Scientific/Technical Advisory Committee), the
WTC Program Administrator may not propose a regulation
under this paragraph, unless the Administrator has
first provided to the Committee a copy of the proposed
regulation, requested recommendations and comments by
the Committee, and afforded the Committee at least 90
days to make such recommendations.
``(b) Coverage of Treatment for WTC-Related Health Conditions.--
``(1) Determination based on an identified wtc-related health
condition for certified eligible wtc responders.--
``(A) In general.--If a physician at a Clinical
Center of Excellence that is providing monitoring
benefits under section 3011 for a certified eligible
WTC responder determines that the responder has an
identified WTC-related health condition, and the
physician makes a clinical determination that exposure
to airborne toxins, other hazards, or adverse
conditions resulting from the 9/11 terrorist attacks is
substantially likely to be a significant factor in
aggravating, contributing to, or causing the
condition--
``(i) the physician shall promptly transmit
such determination to the WTC Program
Administrator and provide the Administrator
with the medical facts supporting such
determination; and
``(ii) on and after the date of such
transmittal and subject to subparagraph (B),
the WTC program shall provide for payment under
subsection (c) for medically necessary
treatment for such condition.
``(B) Review; certification; appeals.--
``(i) Review.--A Federal employee designated
by the WTC Program Administrator shall review
determinations made under subparagraph (A) of a
WTC-related health condition.
``(ii) Certification.--The Administrator
shall provide a certification of such condition
based upon reviews conducted under clause (i).
Such a certification shall be provided unless
the Administrator determines that the
responder's condition is not an identified WTC-
related health condition or that exposure to
airborne toxins, other hazards, or adverse
conditions resulting from the 9/11 terrorist
attacks is not substantially likely to be a
significant factor in significantly
aggravating, contributing to, or causing the
condition.
``(iii) Appeal process.--The Administrator
shall provide a process for the appeal of
determinations under clause (ii) before an
administrative law judge.
``(2) Determination based on other wtc-related health
condition.--
``(A) In general.--If a physician at a Clinical
Center of Excellence determines pursuant to subsection
(a) that the certified eligible WTC responder has a
WTC-related health condition that is not an identified
WTC-related health condition for eligible WTC
responders--
``(i) the physician shall promptly transmit
such determination to the WTC Program
Administrator and provide the Administrator
with the facts supporting such determination;
and
``(ii) the Administrator shall make a
determination under subparagraph (B) with
respect to such physician's determination.
``(B) Review; certification.--
``(i) Use of physician panel.--With respect
to each determination relating to a WTC-related
health condition transmitted under subparagraph
(A)(i), the WTC Program Administrator shall
provide for the review of the condition to be
made by a physician panel with appropriate
expertise appointed by the WTC Program
Administrator. Such a panel shall make
recommendations to the Administrator on the
evidence supporting such determination.
``(ii) Review of recommendations of panel;
certification.--The Administrator, based on
such recommendations shall determine, within 60
days after the date of the transmittal under
subparagraph (A)(i), whether or not the
condition is a WTC-related health condition
and, if it is, provide for a certification
under paragraph (1)(B)(ii) of coverage of such
condition. The Administrator shall provide a
process for the appeal of determinations that
the responder's condition is not a WTC-related
health condition before an administrative law
judge.
``(3) Requirement of medical necessity.--
``(A) In general.--In providing treatment for a WTC-
health condition, a physician shall provide treatment
that is medically necessary and in accordance with
medical protocols established under subsection (d).
``(B) Medically necessary standard.--For the purpose
of this title, health care services shall be treated as
medically necessary for an individual if a physician,
exercising prudent clinical judgment, would consider
the services to be medically necessary for the
individual for the purpose of evaluating, diagnosing,
or treating an illness, injury, disease or its
symptoms, and that are--
``(i) in accordance with the generally
accepted standards of medical practice;
``(ii) clinically appropriate, in terms of
type, frequency, extent, site, and duration,
and considered effective for the individual's
illness, injury, or disease; and
``(iii) not primarily for the convenience of
the patient or physician, or another physician,
and not more costly than an alternative service
or sequence of services at least as likely to
produce equivalent therapeutic or diagnostic
results as to the diagnosis or treatment of the
individual's illness, injury, or disease.
``(C) Determination of medical necessity.--
``(i) Review of medical necessity.--As part
of the reimbursement payment process under
subsection (c), the WTC Program Administrator
shall review claims for reimbursement for the
provision of medical treatment to determine if
such treatment is medically necessary.
``(ii) Withholding of payment for medically
unnecessary treatment.--The Administrator may
withhold such payment for treatment that the
Administrator determines is not medically
necessary.
``(iii) Review of determinations of medical
necessity.--The Administrator shall provide a
process for providers to appeal a determination
under clause (ii) that medical treatment is not
medically necessary. Such appeals shall be
reviewed through the use of a physician panel
with appropriate expertise.
``(4) Scope of treatment covered.--
``(A) In general.--The scope of treatment covered
under such paragraphs includes services of physicians
and other health care providers, diagnostic and
laboratory tests, prescription drugs, inpatient and
outpatient hospital services, and other medically
necessary treatment.
``(B) Pharmaceutical coverage.--With respect to
ensuring coverage of medically necessary outpatient
prescription drugs, such drugs shall be provided, under
arrangements made by the WTC Program Administrator,
directly through participating Clinical Centers of
Excellence or through one or more outside vendors.
``(C) Transportation expenses.--To the extent
provided in advance in appropriations Acts, the WTC
Program Administrator may provide for necessary and
reasonable transportation and expenses incident to the
securing of medically necessary treatment involving
travel of more than 250 miles and for which payment is
made under this section in the same manner in which
individuals may be furnished necessary and reasonable
transportation and expenses incident to services
involving travel of more than 250 miles under
regulations implementing section 3629(c) of the Energy
Employees Occupational Illness Compensation Program Act
of 2000 (title XXXVI of Public Law 106-398; 42 U.S.C.
7384t(c)).
``(5) Provision of treatment pending certification.--In the
case of a certified eligible WTC responder who has been
determined by an examining physician under subsection (b)(1) to
have an identified WTC-related health condition, but for whom a
certification of the determination has not yet been made by the
WTC Program Administrator, medical treatment may be provided
under this subsection, subject to paragraph (6), until the
Administrator makes a decision on such certification. Medical
treatment provided under this paragraph shall be considered to
be medical treatment for which payment may be made under
subsection (c).
``(6) Prior approval process for non-certified non-emergency
inpatient hospital services.--Non-emergency inpatient hospital
services for a WTC-related health condition identified by an
examining physician under paragraph (b)(1) that is not
certified under paragraph (1)(B)(ii) is not covered unless the
services have been determined to be medically necessary and
approved through a process established by the WTC Program
Administrator. Such process shall provide for a decision on a
request for such services within 15 days of the date of receipt
of the request. The WTC Administrator shall provide a process
for the appeal of a decision that the services are not
medically necessary.
``(c) Payment for Initial Health Evaluation, Medical Monitoring, and
Treatment of WTC-Related Health Conditions.--
``(1) Medical treatment.--
``(A) Use of feca payment rates.--Subject to
subparagraph (B), the WTC Program Administrator shall
reimburse costs for medically necessary treatment under
this title for WTC-related health conditions according
to the payment rates that would apply to the provision
of such treatment and services by the facility under
the Federal Employees Compensation Act.
``(B) Pharmaceuticals.--
``(i) In general.--The WTC Program
Administrator shall establish a program for
paying for the medically necessary outpatient
prescription pharmaceuticals prescribed under
this title for WTC-related conditions through
one or more contracts with outside vendors.
``(ii) Competitive bidding.--Under such
program the Administrator shall--
``(I) select one or more appropriate
vendors through a Federal competitive
bid process; and
``(II) select the lowest bidder (or
bidders) meeting the requirements for
providing pharmaceutical benefits for
participants in the WTC program.
``(iii) Treatment of fdny participants.--
Under such program the Administrator may enter
select a separate vendor to provide
pharmaceutical benefits to certified eligible
WTC responders for whom the Clinical Center of
Excellence is described in section
3006(b)(1)(A) if such an arrangement is deemed
necessary and beneficial to the program by the
WTC Program Administrator.
``(C) Other treatment.--For treatment not covered
under a preceding subparagraph, the WTC Program
Administrator shall designate a reimbursement rate for
each such service.
``(2) Medical monitoring and initial health evaluation.--The
WTC Program Administrator shall reimburse the costs of medical
monitoring and the costs of an initial health evaluation
provided under this title at a rate set by the Administrator.
``(3) Administrative arrangement authority.--The WTC Program
Administrator may enter into arrangements with other government
agencies, insurance companies, or other third-party
administrators to provide for timely and accurate processing of
claims under this section.
``(4) Claims processing subject to appropriations.--The
payment by the WTC Program Administrator for the processing of
claims under this title is limited to the amounts provided in
advance in appropriations Acts.
``(d) Medical Treatment Protocols.--
``(1) Development.--The Coordinating Centers of Excellence
shall develop medical treatment protocols for the treatment of
certified eligible WTC responders and certified eligible WTC
community members for identified WTC-related health conditions.
``(2) Approval.--The WTC Program Administrator shall approve
the medical treatment protocols, in consultation with the WTC
Health Program Steering Committees.
``PART 2--COMMUNITY PROGRAM
``SEC. 3021. IDENTIFICATION AND INITIAL HEALTH EVALUATION OF ELIGIBLE
WTC COMMUNITY MEMBERS.
``(a) Eligible WTC Community Member Defined.--
``(1) In general.--In this title, the term `eligible WTC
community member' means, subject to paragraphs (3) and (5), an
individual who claims symptoms of a WTC-related health
condition and is described in any of the following
subparagraphs:
``(A) Currently identified community member.--An
individual, including an eligible WTC responder, who
has been identified as eligible for medical treatment
or monitoring by the WTC Environmental Health Center as
of the date of enactment of this title.
``(B) Community member who meets current eligibility
criteria.--An individual who is not an eligible WTC
responder and meets any of the current eligibility
criteria described in a subparagraph of paragraph (2).
``(C) Community member who meets modified eligibility
criteria.--An individual who is not an eligible WTC
responder and meets such eligibility criteria relating
to exposure to airborne toxins, other hazards, or
adverse conditions resulting from the September 11,
2001, terrorist attacks on the World Trade Center as
the WTC Administrator determines eligible, after
consultation with the WTC Community Program Steering
Committee, Coordinating Centers of Excellence described
in section 3006(b)(1)(C), and the WTC Scientific/
Technical Advisory Committee.
The Administrator shall not modify such criteria under
subparagraph (C) on or after the date that the number of
certifications for eligible community members has reached 80
percent of the limit described in paragraph (5) or on or after
the date that the number of certifications for eligible
responders has reached 80 percent of the limit described in
section 3021(a)(5).
``(2) Current eligibility criteria.--The eligibility criteria
described in this paragraph for an individual are that the
individual is described in any of the following subparagraphs:
``(A) A person who was present in the New York City
disaster area in the dust or dust cloud on September
11, 2001.
``(B) A person who worked, resided or attended
school, child care or adult day care in the New York
City disaster area for--
``(i) at least four days during the 4-month
period beginning on September 11, 2001, and
ending on January 10, 2002; or
``(ii) at least 30 days during the period
beginning on September 11, 2001, and ending on
July 31, 2002.
``(C) Any person who worked as a clean-up worker or
performed maintenance work in the New York City
disaster area during the 4-month period described in
subparagraph (B)(i) and had extensive exposure to WTC
dust as a result of such work.
``(D) A person who was deemed eligible to receive a
grant from the Lower Manhattan Development Corporation
Residential Grant Program, who possessed a lease for a
residence or purchased a residence in the New York City
disaster area, and who resided in such residence during
the period beginning on September 11, 2001, and ending
on May 31, 2003.
``(E) A person whose place of employment--
``(i) at any time during the period beginning
on September 11, 2001, and ending on May 31,
2003, was in the New York City disaster area;
and
``(ii) was deemed eligible to receive a grant
from the Lower Manhattan Development
Corporation WTC Small Firms Attraction and
Retention Act program or other government
incentive program designed to revitalize the
Lower Manhattan economy after the September 11,
2001, terrorist attacks on the World Trade
Center.
``(3) Application process.--The WTC Program Administrator in
consultation with the Coordinating Centers of Excellence shall
establish a process for individuals, other than individuals
described in paragraph (1)(A), to be determined eligible WTC
community member. Under such process--
``(A) there shall be no fee charged to the applicant
for making an application for such determination;
``(B) the Administrator shall make a determination on
such an application not later than 60 days after the
date of filing the application; and
``(C) an individual who is determined not to be an
eligible WTC community member shall have an opportunity
to appeal such determination before an administrative
law judge in a manner established under such process.
``(4) Certification.--
``(A) In general.--In the case of an individual who
is described in paragraph (1)(A) or who is determined
under paragraph (3) (consistent with paragraph (5)) to
be an eligible WTC community member, the WTC Program
Administrator shall provide an appropriate
certification of such fact and of eligibility for
followup monitoring and treatment benefits under this
part. The Administrator shall make determinations of
eligibility relating to an applicant's compliance with
this title, including the verification of information
submitted in support of the application and shall not
deny such a certification to an individual unless the
Administrator determines that--
``(i) based on the application submitted, the
individual does not meet the eligibility
criteria; or
``(ii) the numerical limitation on
certification of eligible WTC community members
set forth in paragraph (5) has been met.
``(B) Timing.--
``(i) Currently identified community
members.--In the case of an individual who is
described in paragraph (1)(A), the WTC Program
Administrator shall provide the certification
under subparagraph (A) not later than 60 days
after the date of the enactment of this title.
``(ii) Other members.--In the case of another
individual who is determined under paragraph
(3) and consistent with paragraph (5) to be an
eligible WTC community member, the WTC Program
Administrator shall provide the certification
under subparagraph (A) at the time of such
determination.
``(5) Numerical limitation on certification of eligible wtc
community members.--
``(A) In general.--The total number of individuals
not described in subparagraph (C) who may be certified
as eligible WTC community members under paragraph (4)
shall not exceed 15,000. In applying the previous
sentence, any individual who at any time so qualifies
as an eligible WTC community member shall be counted
against such numerical limitation.
``(B) Process.--In implementing subparagraph (A), the
WTC Program Administrator shall--
``(i) limit the number of certifications
provided under paragraph (4) in accordance with
such subparagraph; and
``(ii) provide priority in such
certifications in the order in which
individuals apply for a determination under
paragraph (4).
``(C) Individuals currently receiving treatment not
counted.--Individuals described in this subparagraph
are individuals who--
``(i) are described in paragraph (1)(A); or
``(ii) before the date of the enactment of
this title, have received monitoring or
treatment at the World Trade Center
Environmental Health Center at Bellevue
Hospital Center, Gouverneur Health Care
Services, or Elmhurst Hospital Center.
The New York City Health and Hospitals Corporation
shall, not later than 6 months after the date of
enactment of this title, enter into arrangements with
the Mt. Sinai Data and Clinical Coordination Center for
the reporting of medical data concerning eligible WTC
responders described in paragraph (1)(A), as determined
by the WTC Program Administrator and consistent with
applicable Federal and State laws and regulations
relating to confidentiality of individually
identifiable health information.
``(D) Report to congress if numerical limitation to
be reached.--If the WTC Program Administrator
determines that the number of individuals subject to
the numerical limitation of subparagraph (A) is likely
to exceed such numerical limitation, the Administrator
shall submit to Congress a report on such
determination. Such report shall include an estimate of
the number of such individuals in excess of such
numerical limitation and of the additional expenditures
that would result under this title if such numerical
limitation were removed.
``(b) Initial Health Evaluation To Determine Eligibility for Followup
Monitoring or Treatment.--
``(1) In general.--In the case of a certified eligible WTC
community member, the WTC program shall provide for an initial
health evaluation to determine if the member has a WTC-related
health condition and is eligible for followup monitoring and
treatment benefits under the WTC program. Initial health
evaluation protocols shall be approved by the WTC Program
Administrator, in consultation with the World Trade Center
Environmental Health Center at Bellevue Hospital and the WTC
Community Program Steering Committee.
``(2) Initial health evaluation providers.--The initial
health evaluation described in paragraph (1) shall be provided
through a Clinical Center of Excellence with respect to the
individual involved.
``(3) Limitation on initial health evaluation benefits.--
Benefits for initial health evaluation under this part for an
eligible WTC community member shall consist only of a single
medical initial health evaluation consistent with initial
health evaluation protocols described in paragraph (1). Nothing
in this paragraph shall be construed as preventing such an
individual from seeking additional medical initial health
evaluations at the expense of the individual.
``SEC. 3022. FOLLOWUP MONITORING AND TREATMENT OF CERTIFIED ELIGIBLE
WTC COMMUNITY MEMBERS FOR WTC-RELATED HEALTH
CONDITIONS.
``(a) In General.--Subject to subsection (b), the provisions of
sections 3011 and 3012 shall apply to followup monitoring and treatment
of WTC-related health conditions for certified eligible WTC community
members in the same manner as such provisions apply to the monitoring
and treatment of identified WTC-related health conditions for certified
eligible WTC responders, except that such monitoring shall only be
available to those certified as eligible for treatment under this
title. Under section 3006(a)(3), the City of New York is required to
contribute a share of the costs of such treatment.
``(b) List of Identified WTC-related Health Conditions for WTC
Community Members.--
``(1) Identified wtc-related health conditions for wtc
community members.--For purposes of this title, the term
`identified WTC-related health conditions for WTC community
members' means any of the following health conditions:
``(A) Aerodigestive disorders.--
``(i) Interstitial lung diseases.
``(ii) Chronic respiratory disorder--fumes/
vapors.
``(iii) Asthma.
``(iv) Reactive airways dysfunction syndrome
(RADS).
``(v) WTC-exacerbated chronic obstructive
pulmonary disease (COPD).
``(vi) Chronic cough syndrome.
``(vii) Upper airway hyperreactivity.
``(viii) Chronic rhinosinusitis.
``(ix) Chronic nasopharyngitis.
``(x) Chronic laryngitis.
``(xi) Gastro-esophageal reflux disorder
(GERD).
``(xii) Sleep apnea exacerbated by or related
to a condition described in a previous clause.
``(B) Mental health conditions.--
``(i) Post traumatic stress disorder (PTSD).
``(ii) Major depressive disorder.
``(iii) Panic disorder.
``(iv) Generalized anxiety disorder.
``(v) Anxiety disorder (not otherwise
specified).
``(vi) Depression (not otherwise specified).
``(vii) Acute stress disorder.
``(viii) Dysthymic disorder.
``(ix) Adjustment disorder.
``(x) Substance abuse.
``(xi) V codes (treatments not specifically
related to psychiatric disorders, such as
marital problems, parenting problems etc.),
secondary to another identified WTC-related
health condition for WTC community members.
``(2) Additions to identified wtc-related health conditions
for wtc community members.--The provisions of paragraph (4) of
section 3012(a) shall apply with respect to an addition to the
list of identified WTC-related conditions for eligible WTC
community members under paragraph (1) in the same manner as
such provisions apply to an addition to the list of identified
WTC-related conditions for eligible WTC responders under
section 3012(a)(3).
``SEC. 3023. FOLLOWUP MONITORING AND TREATMENT OF OTHER INDIVIDUALS
WITH WTC-RELATED HEALTH CONDITIONS.
``(a) In General.--Subject to subsection (c), the provisions of
section 3022 shall apply to the followup monitoring and treatment of
WTC-related health conditions for eligible WTC community members in the
case of individuals described in subsection (b) in the same manner as
such provisions apply to the followup monitoring and treatment of WTC-
related health conditions for WTC community members. Under section
3006(a)(3), the City of New York is required to contribute a share of
the costs of such monitoring and treatment.
``(b) Individuals Described.--An individual described in this
subsection is an individual who, regardless of location of residence--
``(1) is not a eligible WTC responder or an eligible WTC
community member; and
``(2) is diagnosed at a Clinical Center of Excellence (with
respect to an eligible WTC community member) with an identified
WTC-related health condition for WTC community members.
``(c) Limitation.--
``(1) In general.--The WTC Program Administrator shall limit
benefits for any fiscal year under subsection (a) in a manner
so that payments under this section for such fiscal year do not
exceed the amount specified in paragraph (2) for such fiscal
year.
``(2) Limitation.--The amount specified in this paragraph
for--
``(A) fiscal year 2009 is $20,000,000; or
``(B) a succeeding fiscal year is the amount
specified in this paragraph for the previous fiscal
year increased by the annual percentage increase in the
medical care component of the consumer price index for
all urban consumers.
``PART 3--NATIONAL ARRANGEMENT FOR BENEFITS FOR ELIGIBLE INDIVIDUALS
OUTSIDE NEW YORK
``SEC. 3031. NATIONAL ARRANGEMENT FOR BENEFITS FOR ELIGIBLE INDIVIDUALS
OUTSIDE NEW YORK.
``(a) In General.--In order to ensure reasonable access to benefits
under this subtitle for individuals who are eligible WTC responders or
eligible WTC community members and who reside in any State, as defined
in section 2(f), outside the New York metropolitan area, the WTC
Program Administrator shall establish a nationwide network of health
care providers to provide monitoring and treatment benefits and initial
health evaluations near such individuals' areas of residence in such
States. Nothing in this subsection shall be construed as preventing
such individuals from being provided such monitoring and treatment
benefits or initial health evaluation through any Clinical Center of
Excellence.
``(b) Network Requirements.--Any health care provider participating
in the network under subsection (a) shall--
``(1) meet criteria for credentialing established by the
Coordinating Centers of Excellence;
``(2) follow the monitoring, initial health evaluation, and
treatment protocols developed under section 3006(a)(2)(B);
``(3) collect and report data in accordance with section
3005; and
``(4) meet such fraud, quality assurance, and other
requirements as the WTC Program Administrator establishes.
``Subtitle C--Research Into Conditions
``SEC. 3041. RESEARCH REGARDING CERTAIN HEALTH CONDITIONS RELATED TO
SEPTEMBER 11 TERRORIST ATTACKS IN NEW YORK CITY.
``(a) In General.--With respect to individuals, including eligible
WTC responders and eligible WTC community members, receiving monitoring
or treatment under subtitle B, the WTC Program Administrator shall
conduct or support--
``(1) research on physical and mental health conditions that
may be related to the September 11, 2001, terrorist attacks;
``(2) research on diagnosing WTC-related health conditions of
such individuals, in the case of conditions for which there has
been diagnostic uncertainty; and
``(3) research on treating WTC-related health conditions of
such individuals, in the case of conditions for which there has
been treatment uncertainty.
The Administrator may provide such support through continuation and
expansion of research that was initiated before the date of the
enactment of this title and through the World Trade Center Health
Registry (referred to in section 3051), through a Clinical Center of
Excellence, or through a Coordinating Center of Excellence.
``(b) Types of Research.--The research under subsection (a)(1) shall
include epidemiologic and other research studies on WTC-related
conditions or emerging conditions--
``(1) among WTC responders and community members under
treatment; and
``(2) in sampled populations outside the New York City
disaster area in Manhattan as far north as 14th Street and in
Brooklyn, along with control populations, to identify potential
for long-term adverse health effects in less exposed
populations.
``(c) Consultation.--The WTC Program Administrator shall carry out
this section in consultation with the WTC Health Program Steering
Committees and the WTC Scientific/Technical Advisory Committee.
``(d) Application of Privacy and Human Subject Protections.--The
privacy and human subject protections applicable to research conducted
under this section shall not be less than such protections applicable
to research otherwise conducted by the National Institutes of Health.
``(e) Authorization of Appropriations.--For the purpose of carrying
out this section, there are authorized to be appropriated $15,000,000
for each fiscal year, in addition to any other authorizations of
appropriations that are available for such purpose.
``Subtitle D--Programs of the New York City Department of Health and
Mental Hygiene
``SEC. 3051. WORLD TRADE CENTER HEALTH REGISTRY.
``(a) Program Extension.--For the purpose of ensuring on-going data
collection for victims of the September 11, 2001, terrorist attacks on
the World Trade Center, the WTC Program Administrator, shall extend and
expand the arrangements in effect as of January 1, 2008, with the New
York City Department of Health and Mental Hygiene that provide for the
World Trade Center Health Registry.
``(b) Authorization of Appropriations.--There are authorized to be
appropriated $7,000,000 for each fiscal year to carry out this section.
``SEC. 3052. MENTAL HEALTH SERVICES.
``(a) In General.--The WTC Program Administrator may make grants to
the New York City Department of Health and Mental Hygiene to provide
mental health services to address mental health needs relating to the
September 11, 2001, terrorist attacks on the World Trade Center.
``(b) Authorization of Appropriations.--There are authorized to be
appropriated $8,500,000 for each fiscal year to carry out this
section.''.
TITLE II--SEPTEMBER 11TH VICTIM COMPENSATION FUND OF 2001
SEC. 201. DEFINITIONS.
Section 402 of the Air Transportation Safety and System Stabilization
Act (49 U.S.C. 40101 note) is amended--
(1) in paragraph (6) by inserting ``, or debris removal,
including under the World Trade Center Health Program
established under section 3001 of the Public Health Service
Act'' after ``September 11, 2001'';
(2) by inserting after paragraph (6) the following new
paragraphs and redesignating subsequent paragraphs accordingly:
``(7) Contractor and subcontractor.--The term `contractor and
subcontractor' means any contractor or subcontractor (at any
tier of a subcontracting relationship), including any general
contractor, construction manager, prime contractor, consultant,
or any parent, subsidiary, associated or allied company,
affiliated company, corporation, firm, organization, or joint
venture thereof that participated in debris removal at any 9/11
crash site. Such term shall not include any entity, including
the Port Authority of New York and New Jersey, with a property
interest in the World Trade Center, on September 11, 2001,
whether fee simple, leasehold or easement, direct or indirect.
``(8) Debris removal.--The term `debris removal' means rescue
and recovery efforts, removal of debris, cleanup, remediation,
and response during the immediate aftermath of the terrorist-
related aircraft crashes of September 11, 2001, with respect to
a 9/11 crash site.'';
(3) by inserting after paragraph (10), as so redesignated,
the following new paragraph and redesignating the subsequent
paragraphs accordingly:
``(11) Immediate aftermath.--The term `immediate aftermath'
means any period beginning with the terrorist-related aircraft
crashes of September 11, 2001, and ending on August 30,
2002.''; and
(4) by adding at the end the following new paragraph:
``(14) 9/11 crash site.--The term `9/11 crash site' means--
``(A) the World Trade Center site, Pentagon site, and
Shanksville, Pennsylvania site;
``(B) the buildings or portions of buildings that
were destroyed as a result of the terrorist-related
aircraft crashes of September 11, 2001;
``(C) any area contiguous to a site of such crashes
that the Special Master determines was sufficiently
close to the site that there was a demonstrable risk of
physical harm resulting from the impact of the aircraft
or any subsequent fire, explosions, or building
collapses (including the immediate area in which the
impact occurred, fire occurred, portions of buildings
fell, or debris fell upon and injured individuals); and
``(D) any area related to, or along, routes of debris
removal, such as barges and Fresh Kills.''.
SEC. 202. EXTENDED AND EXPANDED ELIGIBILITY FOR COMPENSATION.
(a) Information on Losses Resulting From Debris Removal Included in
Contents of Claim Form.--Section 405(a)(2)(B) of the Air Transportation
Safety and System Stabilization Act (49 U.S.C. 40101 note) is amended--
(1) in clause (i), by inserting ``, or debris removal during
the immediate aftermath'' after ``September 11, 2001'';
(2) in clause (ii), by inserting ``or debris removal during
the immediate aftermath'' after ``crashes''; and
(3) in clause (iii), by inserting ``or debris removal during
the immediate aftermath'' after ``crashes''.
(b) Extension of Deadline for Claims Under September 11th Victim
Compensation Fund of 2001.--Section 405(a)(3) of such Act is amended to
read as follows:
``(3) Limitation.--
``(A) In general.--Except as provided by subparagraph
(B), no claim may be filed under paragraph (1) after
the date that is 2 years after the date on which
regulations are promulgated under section 407(a).
``(B) Exception.--A claim may be filed under
paragraph (1), in accordance with subsection
(c)(3)(A)(i), by an individual (or by a personal
representative on behalf of a deceased individual)
during the period beginning on the date on which the
regulations are updated under section 407(b) and ending
on December 22, 2031.''.
(c) Requirements for Filing Claims During Extended Filing Period.--
Section 405(c)(3) of such Act is amended--
(1) by redesignating subparagraphs (A) and (B) as
subparagraphs (B) and (C), respectively; and
(2) by inserting before subparagraph (B), as so redesignated,
the following new subparagraph:
``(A) Requirements for filing claims during extended
filing period.--
``(i) Timing requirements for filing
claims.--An individual (or a personal
representative on behalf of a deceased
individual) may file a claim during the period
described in subsection (a)(3)(B) as follows:
``(I) In the case that the Special
Master determines the individual knew
(or reasonably should have known)
before the date specified in clause
(iii) that the individual suffered a
physical harm at a 9/11 crash site as a
result of the terrorist-related
aircraft crashes of September 11, 2001,
or as a result of debris removal, and
that the individual knew (or should
have known) before such specified date
that the individual was eligible to
file a claim under this title, the
individual may file a claim not later
than the date that is 2 years after
such specified date.
``(II) In the case that the Special
Master determines the individual first
knew (or reasonably should have known)
on or after the date specified in
clause (iii) that the individual
suffered such a physical harm or that
the individual first knew (or should
have known) on or after such specified
date that the individual was eligible
to file a claim under this title, the
individual may file a claim not later
than the last day of the 2-year period
beginning on the date the Special
Master determines the individual first
knew (or should have known) that the
individual both suffered from such harm
and was eligible to file a claim under
this title.
``(ii) Other eligibility requirements for
filing claims.--An individual may file a claim
during the period described in subsection
(a)(3)(B) only if--
``(I) the individual was treated by a
medical professional for suffering from
a physical harm described in clause
(i)(I) within a reasonable time from
the date of discovering such harm; and
``(II) the individual's physical harm
is verified by contemporaneous medical
records created by or at the direction
of the medical professional who
provided the medical care.
``(iii) Date specified.--The date specified
in this clause is the date on which the
regulations are updated under section
407(a).''.
(d) Clarifying Applicability to All 9/11 Crash Sites.--Section
405(c)(2)(A)(i) of such Act is amended by striking ``or the site of the
aircraft crash at Shanksville, Pennsylvania'' and inserting ``the site
of the aircraft crash at Shanksville, Pennsylvania, or any other 9/11
crash site''.
(e) Inclusion of Physical Harm Resulting From Debris Removal.--
Section 405(c) of such Act is amended in paragraph (2)(A)(ii), by
inserting ``or debris removal'' after ``air crash''.
(f) Limitations on Civil Actions.--
(1) Application to damages related to debris removal.--Clause
(i) of section 405(c)(3)(C) of such Act, as redesignated by
subsection (c), is amended by inserting ``, or for damages
arising from or related to debris removal'' after ``September
11, 2001''.
(2) Pending actions.--Clause (ii) of such section, as so
redesignated, is amended to read as follows:
``(ii) Pending actions.--In the case of an
individual who is a party to a civil action
described in clause (i), such individual may
not submit a claim under this title--
``(I) during the period described in
subsection (a)(3)(A) unless such
individual withdraws from such action
by the date that is 90 days after the
date on which regulations are
promulgated under section 407(a); and
``(II) during the period described in
subsection (a)(3)(B) unless such
individual withdraws from such action
by the date that is 90 days after the
date on which the regulations are
updated under section 407(b).''.
(3) Authority to reinstitute certain lawsuits.--Such section,
as so redesignated, is further amended by adding at the end the
following new clause:
``(iii) Authority to reinstitute certain
lawsuits.--In the case of a claimant who was a
party to a civil action described in clause
(i), who withdrew from such action pursuant to
clause (ii), and who is subsequently determined
to not be an eligible individual for purposes
of this subsection, such claimant may
reinstitute such action without prejudice
during the 90-day period beginning after the
date of such ineligibility determination.''.
SEC. 203. REQUIREMENT TO UPDATE REGULATIONS.
Section 407 of the Air Transportation Safety and System Stabilization
Act (49 U.S.C. 40101 note) is amended--
(1) by striking ``Not later than'' and inserting ``(a) In
General.--Not later than''; and
(2) by adding at the end the following new subsection:
``(b) Updated Regulations.--Not later than 90 days after the date of
the enactment of the James Zadroga 9/11 Health and Compensation Act of
2010, the Special Master shall update the regulations promulgated under
subsection (a) to the extent necessary to comply with the provisions of
title II of such Act.''.
SEC. 204. LIMITED LIABILITY FOR CERTAIN CLAIMS.
Section 408(a) of the Air Transportation Safety and System
Stabilization Act (49 U.S.C. 40101 note) is amended by adding at the
end the following new paragraphs:
``(4) Liability for certain claims.--Notwithstanding any
other provision of law, liability for all claims and actions
(including claims or actions that have been previously
resolved, that are currently pending, and that may be filed
through December 22, 2031) for compensatory damages,
contribution or indemnity, or any other form or type of relief,
arising from or related to debris removal, against the City of
New York, any entity (including the Port Authority of New York
and New Jersey) with a property interest in the World Trade
Center on September 11, 2001 (whether fee simple, leasehold or
easement, or direct or indirect) and any contractors and
subcontractors, shall not be in an amount that exceeds the sum
of the following, as may be applicable:
``(A) The amount of funds of the WTC Captive
Insurance Company, including the cumulative interest.
``(B) The amount of all available insurance
identified in schedule 2 of the WTC Captive Insurance
Company insurance policy.
``(C) As it relates to the limitation of liability of
the City of New York, the amount that is the greater of
the City of New York's insurance coverage or
$350,000,000. In determining the amount of the City's
insurance coverage for purposes of the previous
sentence, any amount described in clauses (i) and (ii)
shall not be included.
``(D) As it relates to the limitation of liability of
any entity, including the Port Authority of New York
and New Jersey, with a property interest in the World
Trade Center on September 11, 2001 (whether fee simple,
leasehold or easement, or direct or indirect), the
amount of all available liability insurance coverage
maintained by any such entity.
``(E) As it relates to the limitation of liability of
any individual contractor or subcontractor, the amount
of all available liability insurance coverage
maintained by such contractor or subcontractor on
September 11, 2001.
``(5) Priority of claims payments.--Payments to plaintiffs
who obtain a settlement or judgment with respect to a claim or
action to which paragraph (4)(A) applies, shall be paid solely
from the following funds in the following order, as may be
applicable:
``(A) The funds described in clause (i) or (ii) of
paragraph (4)(A).
``(B) If there are no funds available as described in
clause (i) or (ii) of paragraph (4)(A), the funds
described in clause (iii) of such paragraph.
``(C) If there are no funds available as described in
clause (i), (ii), or (iii) of paragraph (4)(A), the
funds described in clause (iv) of such paragraph.
``(D) If there are no funds available as described in
clause (i), (ii), (iii), or (iv) of paragraph (4)(A),
the funds described in clause (v) of such paragraph.
``(6) Declaratory judgment actions and direct action.--Any
party to a claim or action to which paragraph (4)(A) applies
may, with respect to such claim or action, either file an
action for a declaratory judgment for insurance coverage or
bring a direct action against the insurance company
involved.''.
SEC. 205. FUNDING; ATTORNEY FEES.
Section 406 of the Air Transportation Safety and System Stabilization
Act (49 U.S.C. 40101 note) is amended--
(1) in subsection (a), by striking ``Not later than'' and
inserting ``Subject to subsection (d), not later than'';
(2) in subsection (b), by striking ``This title'' and
inserting ``Subject to subsection (d), this title''; and
(3) by adding at the end the following new subsections:
``(d) Limitation.--The total payment of amounts for compensation
under this title, with respect to claims filed on or after the date on
which the regulations are updated under section 407(b), shall not
exceed $8,400,000,000.
``(e) Attorney Fees.--
``(1) In general.--Notwithstanding any contract, and except
as provided in paragraph (2), the representative of an
individual may not charge, for services rendered in connection
with the claim of an individual under this title, more than 10
percent of an award made under this title on such claim.
``(2) Exception.--With respect to a claim made on behalf of
an individual for whom a lawsuit was filed in the Southern
District of New York prior to January 1, 2009, in the event
that the representative believes in good faith that the fee
limit set by paragraph (1) will not provide adequate
compensation for services rendered in connection with such
claim because of the substantial amount of legal work provided
on behalf of the claimant (including work performed before the
enactment of this legislation), application for greater
compensation may be made to the Special Master. Upon such
application, the Special Master may, in his or her discretion,
award as reasonable compensation for services rendered an
amount greater than that allowed for in paragraph (1). Such fee
award will be final, binding, and non-appealable.''.
Purpose and Summary
H.R. 847 establishes the World Trade Center Health Program
to provide medical monitoring and treatment benefits to
emergency responders, recovery and cleanup workers, area
residents, and others who were directly impacted by the attacks
of September 11, 2001. The bill also reopens the September 11
Victim Compensation Fund of 2001 to provide compensation to
anyone who was injured in the aftermath of the attacks,
including persons who were injured during debris removal at the
September 11 crash sites. The bill extends the deadline for
making claims under the fund, and it provides certain liability
protections for the City of New York and other entities that
engaged in recovery efforts and debris removal following the
September 11 attacks.
Background and Need for the Legislation
SEPTEMBER 11, 2001 AND ITS AFTERMATH
On September 11, 2001, terrorists flew two hijacked
commercial jets into the World Trade Center towers in New York
City. Almost 3,000 people were killed in the collapse of the
towers, including hundreds of first responders, police
officers, and firefighters. Beyond this immediate loss of life,
thousands of other persons are now suffering debilitating and
even deadly illnesses due to their proximity to the World Trade
Center site in the aftermath of the attacks.
It is now well documented that the collapse of the World
Trade Center towers and the adjacent buildings released
numerous hazardous substances into the environment. These
substances included hundreds of tons of asbestos, nearly half a
million pounds of lead, and large amounts of glass fibers,
various heavy metals, dioxin, benzene, polychlorinated
biphenyls (PCBs) and other potentially deadly chemicals and
materials.\1\ These substances formed a large cloud of toxic
dust and smoke, which blanketed parts of New York City and New
Jersey and spread into many of the surrounding office
buildings, schools, and residences. All together, the collapse
of the towers dispersed about one million tons of dust on the
area around Lower Manhattan.
---------------------------------------------------------------------------
\1\See ``World Trade Center USGS Bulk Chemistry Results,'' U.S.
Geological Survey, Open-File Report 01-0429, available at:
pubs.usgs.gov/of/2001/ofr-01-0429/chem1/index.html; ``Characterization
of the Dust/Smoke Aerosol that Settled East of the World Trade Center
(WTC) in Lower Manhattan after the Collapse of the WTC 11 September
2001,'' 110 Environmental Health Perspectives 7 (July 2002), available
at: www.ehponline.org/members/2002/110p703-714lioy/lioy-full.html;
Office of Inspector General, Environmental Protection Agency, EPA's
Response to the World Trade Center Collapse: Challenges, Successes, and
Areas for Improvement, Rpt. No. 2003-P-00012, at 65 (Aug. 21, 2003).
---------------------------------------------------------------------------
Many of those who worked and lived in this area are now
experiencing serious and life-threatening illnesses due to
their exposure to ``World Trade Center dust.'' Evidence
accumulated since the collapse of the World Trade Center
buildings indicates that the air in Lower Manhattan was
hazardous, notwithstanding safety assurances from the
Environmental Protection Agency (EPA), and that exposure to
World Trade Center dust has caused adverse health effects in
thousands of responders, recovery workers, and others at or
near Ground Zero in the immediate aftermath of the September 11
attacks.\2\ Such effects include pulmonary fibrosis,
sarcoidosis, interstitial lung disease, chronic sinusitis,
severe asthma and other conditions resulting in significant
loss of lung function.\3\ There is also growing evidence that
exposure to World Trade Center dust is resulting in other
serious diseases, including respiratory tract cancer, lymphoma,
and a range of blood cell cancers.\4\ Medical monitoring has
been put in place for thousands of workers at the World Trade
Center site to track cancer rates among this population into
the future.
---------------------------------------------------------------------------
\2\See Id.; Megan Nordgren, Eric Goldstein, and Mark Izeman, The
Environmental Impacts of the World Trade Center Attacks, Natural
Resources Defense Council, at 3 (2002); Office of the Inspector
General, Federal Emergency Management Agency, FEMA's Delivery of
Individual Assistance Program, at 25 (Dec. 18, 2002).
\3\Levin, S.M., Physical Health Status of World Trade Center Rescue
and Recovery Workers and Volunteers--New York City, July 2002--August
2004, Centers for Disease Control and Prevention (Sept. 10, 2004); Mt.
Sinai WTC Medical Monitoring Program, The World Trade Center Disaster
and the Health of Workers: Five-Year Assessment of a Unique Medical
Screening Program (Sept. 6, 2006).
\4\See, e.g., Cancer may be ``third wave'' of WTC illnesses,
Associated Press (May 31, 2007), available at: http://
www.msnbc.msn.com/id/18969197/; Gabriel Izbicki, M.D., et al., World
Trade Center ``Sarcoid-Like'' Granulomatous Pulmonary Disease in New
York City Fire Depart-
ment Rescue Workers, Chest Journal (Jan. 26, 2007), abstract available
at:
http://www.chestjournal.org/content/131/5/1414.abstract; Jonathan M.
Samet, M.D., et al., The Legacy of World Trade Center Dust, The New
England Journal of Medicine (May 31, 2007), available at: http://
content.nejm.org/cgi/content/full/356/22/2233.
---------------------------------------------------------------------------
Such illnesses have caused major financial strains on those
who, exposed to the toxins during the aftermath of the
September 11 attacks, are no longer able to work, and face the
high price of health care without assistance. While some of the
above diseases can improve with medical treatment, the ultimate
medical outcome for people currently being treated or who will
become ill in the future is uncertain. In many cases,
individuals suffer from progressive loss of pulmonary capacity,
resulting in incapacitation, and an inability to perform job
duties or everyday activities. Many others suffer from
recurrent episodes of lung infections leading to frequent
hospitalizations.
THE SEPTEMBER 11 VICTIM COMPENSATION FUND OF 2001
In the immediate aftermath of the September 11 terrorist
attacks, Congress created the September 11 Victim Compensation
Fund (VCF), a unique program designed to compensate people for
losses sustained as a result of the attacks on the World Trade
Center and other 9/11 crash sites. The VCF provided aid to the
families of September 11 victims and to individuals who
suffered personal injury. In return for accepting VCF funds,
recipients relinquished their right to sue the airlines, whose
liability was limited to the value of their insurance. Victims
or their personal representatives were offered the choice to
seek no-fault compensation through the VCF or to bring a civil
tort action against an airline or other parties. For those who
chose to enter the fund, the VCF required that applications be
filed before December 22, 2003.
The special master of the VCF, Kenneth Feinberg, was given
wide latitude to determine eligibility and the amount of
compensation to be paid individuals on a case-by-case basis.
Over a 33-month period, the VCF distributed over $7 billion to
the surviving family members of 2,880 of those who were killed
on September 11 and to 2,680 of those who were injured in the
attacks or the immediate rescue efforts. Families of the
deceased were paid in amounts ranging from $800,000 to $6.5
million. People who had sustained physical injuries were paid
amounts ranging from $500 for a broken finger to $7.1 million
for severe burns over 85% of the victim's body. Awards were
reduced to offset other forms of compensation such as workers
compensation, pension awards and life insurance.
The VCF provided an attractive alternative to the
uncertainty and delay of litigation, and the program was widely
considered to be a success. Most families of deceased victims
chose to participate in the VCF, and 97% of those who submitted
claims received compensation through the program.
While the VCF did an excellent job in handling claims
involving people who died or had an immediate and easily
diagnosable ailment (such as a broken leg), the fund was not as
suitable for dealing with other kinds of injuries. The Fund's
regulations, for example, limited compensation to workers who
were injured in the ``immediate aftermath'' of the attacks,
which was defined as the 96-hour time period immediately
following the attacks. This time-frame was sufficient to deal
with workers who suffered immediate injuries. However, it left
no recourse for individuals with late-onset injuries or for
those who arrived after September 15, 2001 to assist in
recovery and cleanup efforts and are now suffering injuries as
a result of those efforts.
Additionally, some injured persons either did not know they
were eligible to file claims or were unaware of ailments that
had yet to manifest prior to expiration of the deadline. Such
persons include thousands of first responders, construction
workers, local residents and other individuals who are now
developing a range of diseases because of their exposure to
World Trade Center toxins. Many of these individuals are now
developing career-ending injuries, such as pulmonary and
respiratory ailments, but are not eligible to receive
assistance because their symptoms developed after the VCF
filing deadline had passed.
THE JAMES ZADROGA 9/11 HEALTH AND COMPENSATION ACT OF 2010
The James Zadroga 9/11 Health and Compensation Act of 2010
addresses the above concerns by establishing a program to
provide health care to those injured during recovery and
cleanup efforts at September 11 crash sites and by reopening
the September 11 Victim Compensation Fund to provide
compensation for such injured individuals.
Specifically, title I of the bill amends the Public Health
Service Act to establish the World Trade Center Health Program
within the National Institute for Occupational Safety and
Health. This program will provide medical monitoring and
treatment benefits to eligible emergency responders and
recovery and cleanup workers who worked at the World Trade
Center crash site. It will also provide initial health
evaluation, monitoring, and treatment benefits to residents and
other building occupants and area workers who were directly
impacted and adversely affected by the September 11 attacks.
The program will ensure that every person at risk of illness
from exposure to World Trade Center toxins can obtain medical
monitoring and that all those who are injured or sick as a
result of such exposure can obtain treatment.
Title II of the bill reopens the VCF to provide
compensation for economic damages and losses to persons injured
during recovery efforts and debris removal, including workers
and area residents injured by toxins released during the
collapse of the World Trade Center towers. To this end, the
bill redefines a number of terms in the original VCF
legislation so as to expand coverage to persons exposed to
World Trade Center toxins. The bill expands coverage to all
injuries occurring during recovery efforts and debris removal,
including injuries occurring near the World Trade Center site
and along the routes used to remove debris from that site. The
bill defines ``debris removal'' comprehensively, so as to
include the wide range of activities performed at the World
Trade Center site and debris-removal routes, including, but not
limited to, the assessment of damaged structures and the debris
pile, the development of temporary stabilization procedures and
mechanisms, demolition of unsafe structures, and removal of the
debris pile. The bill also defines the term ``immediate
aftermath'' as any period beginning with the terrorist-related
aircraft crashes of September 11, 2001 and ending on August 30,
2002.
The bill reopens the VCF until December 22, 2031, allowing
individuals who did not previously file a claim, or who became
ill after the original December 22, 2003 deadline, to be
compensated for economic damages and losses stemming from their
injuries. The purpose behind reopening the fund for over 20
years is to protect to the greatest extent possible those
persons who were exposed to World Trade Center toxins during
recovery and cleanup efforts but whose resulting injuries are
latent and will manifest over the next two decades.
While extending protection to injured individuals, the bill
also provides protection from liability to certain entities
that participated in recovery efforts and debris removal. The
bill provides that their liability for all claims and actions
arising from, or related to, recovery efforts and debris
removal (including claims and actions previously resolved,
currently pending, or filed through December 22, 2031) is
limited to the amount of funds held by the World Trade Center
Captive Insurance Company, the amount of available insurance
coverage identified by the Captive Insurance Company, and the
amount of insurance coverage held by certain other entities.
The bill provides that the liability of the City of New
York is limited to the City's insurance coverage or
$350,000,000, whichever is greater. It further provides that
the liability of the Port Authority of New York and New Jersey,
and any other entity with a property interest in the World
Trade Center on September 11, 2001, is limited to the amount of
all available insurance coverage maintained by any such entity.
The bill also limits liability of any individual contractor or
subcontractor that participated in recovery efforts and debris
removal to the amount of available liability insurance
maintained by such contractor or subcontractor.
The bill establishes a priority of funds from which
plaintiffs may satisfy judgments or settlements obtained in
civil claims or actions related to recovery and cleanup
efforts. The priority requires exhaustion of amounts held by
the Captive Insurance Company and identified insurance
policies, followed by exhaustion of the amount for which the
City of New York is liable, followed by exhaustion of the
available insurance coverage maintained by the Port Authority
and other entities with a property interest in the World Trade
Center on September 11, 2001, followed by exhaustion of the
available insurance coverage maintained by individual
contractors and subcontractors.
As amended in Committee, the bill caps the total amount of
new compensation that could be awarded by the VCF to $8.4
billion. The bill also caps the amount of such compensation
that could be used to pay attorney's fees at 10 percent, except
that the Special Master is given the discretion to raise this
percentage for certain cases filed in the Southern District of
New York prior to January 1, 2009. This discretion is provided
to the Special Master to address cases where the 10 percent cap
on attorney's fees may not provide adequate compensation for
services rendered in connection with a claim because of the
substantial amount of legal work expended on that claim during
the period after which the initial period for filing claims
under the VCF expired.
The bill also requires the Special Master to update
regulations consistent with revisions to the Victim
Compensation Fund under this bill.
Hearings
The Committee's Subcommittee on Immigration, Citizenship,
Refugees, Border Security, and International Law and
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties held a joint hearing on H.R. 847 on March 31, 2009.
Testimony was received from Kenneth R. Feinberg, former Special
Master, Victim Compensation Fund; Barbara Burnette, former
Detective, New York City Police Department; James Melius, MD.,
Administrator, New York State Laborers' Health and Safety Trust
Fund; Christine LaSala, Chief Executive Officer, World Trade
Center Captive Insurance Fund; Michael A. Cardozo, Corporation
Counsel, City of New York; Theodore H. Frank, American
Enterprise Institute; and Richard Wood, President, Plaza
Construction Corporation. Additional materials were submitted
by the Associated Builders and Contractors (ABC) and Christine
C. Quinn, Speaker, New York City Council.
Committee Consideration
On July 29, 2009, the Committee met in open session and
ordered the bill H.R. 847 favorably reported with an amendment,
by a rollcall vote of 22 to 9, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following rollcall vote occurred during the Committee's
consideration of H.R. 847:
1. An amendment by Mr. Smith to: (a) reduce the life of the
Victim Compensation Fund from 22 to 5 years; (b) reduce the cap
on the Fund from $8.4 billion to $5.5 billion; and (c) strike
several provisions intended to expand eligibility under the VCF
to first responders, recovery workers, and others injured as a
result of exposure to World Trade Center toxins during recovery
efforts and debris removal. Defeated 9 to 21.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Mr. Gutierrez...................................................
Mr. Sherman..................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz...........................................
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz....................................................
Mr. Rooney...................................................... X
Mr. Harper......................................................
-----------------------------------------------
Total....................................................... 9 21
----------------------------------------------------------------------------------------------------------------
2. Motion to order the bill favorably reported as amended.
Approved 22-9.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Conyers, Jr., Chairman...................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Mr. Cohen....................................................... X
Mr. Johnson..................................................... X
Mr. Pierluisi................................................... X
Mr. Quigley..................................................... X
Mr. Gutierrez...................................................
Mr. Sherman..................................................... X
Ms. Baldwin..................................................... X
Mr. Gonzalez.................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Ms. Wasserman Schultz........................................... X
Mr. Maffei...................................................... X
Mr. Smith, Ranking Member....................................... X
Mr. Sensenbrenner, Jr........................................... X
Mr. Coble....................................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Lungren..................................................... X
Mr. Issa........................................................ X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Jordan...................................................... X
Mr. Poe......................................................... X
Mr. Chaffetz.................................................... X
Mr. Rooney...................................................... X
Mr. Harper......................................................
-----------------------------------------------
Total....................................................... 22 9
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the House
of Representatives, the Committee adopts the estimate prepared
by the Director of the Congressional Budget Office printed
below.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the House
of Representatives, the Committee sets forth, with respect to
the bill, H.R. 847, the following estimate and comparison
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 25, 2010.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 847, the ``James
Zadroga 9/11 Health and Compensation Act of 2010.'' As you
requested, CBO has completed an estimate that reflects Title I
of the bill as ordered reported by the Committee on Energy and
Commerce and Title II as ordered reported by the Committee on
the Judiciary.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Stephanie
Cameron (Title I), who can be reached at 226-9010, and Leigh
Angres (Title II), who can be reached at 226-2700.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
Identical letter sent to the Honorable Henry A. Waxman.
H.R. 847--James Zadroga 9/11 Health and Compensation Act of 2010.
Title I as ordered reported by the House Committee on
Energy and Commerce on May 25, 2010, and
Title II as ordered reported by the House Committee on the
Judiciary on July 29, 2009.
SUMMARY
H.R. 847 would establish the World Trade Center (WTC)
Health Program and extend and expand eligibility for
compensation under the September 11th Victim Compensation Fund
(VCF) of 2001. Specifically, H.R. 847 would provide:
LHealth care benefits for eligible emergency
personnel who responded to the September 11, 2001,
terrorist attacks (the terrorist attacks) in New York
City, the Pentagon, and Shanksville, Pennsylvania, and
for workers who participated in recovery and cleanup
following the attacks (collectively referred to as
responders in this estimate);
LHealth care benefits for eligible residents
and others present in the area of New York City near
the World Trade Center (defined as survivors under the
bill); and
LMonetary compensation to individuals eligible
under the bill to submit claims for death and physical
injury claims resulting from the attacks.
CBO estimates that enacting H.R. 847 would increase direct
spending by $7.2 billion over the 2011-2015 period and $10.5
billion over the 2011-2020 period. Pay-as-you-go procedures
apply because enacting the legislation would affect direct
spending.
In addition, we estimate that, subject to appropriation of
the necessary amounts, administering the VCF awards process
would cost $514 million over the next 10 years. However,
assuming appropriation actions consistent with title I of the
bill, CBO estimates a $688 million reduction in discretionary
outlays over the 2011-2020 period because some spending that is
currently funded by annual appropriations would become direct
spending under the bill. On balance, CBO estimates that
discretionary spending would decrease by $174 million over 10
years.
H.R. 847 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA).
H.R. 847 would impose a private-sector mandate as defined
in UMRA. The bill would impose a mandate on individuals seeking
compensatory damages or other relief arising from or related to
debris removal from sites of the terrorist attacks by limiting
the liability of entities from which individuals might win
compensation. CBO cannot determine whether the aggregate cost
of complying with that mandate would exceed the threshold
established by UMRA for private-sector mandates in 2011 ($141
million in 2010, adjusted annually for inflation).
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 847 is shown in the
following table. The costs of this legislation fall within
budget functions 550 (health), 570 (Medicare), and 750
(administration of justice).
BASIS OF ESTIMATE
For this estimate, CBO assumes that H.R. 847 will be
enacted by the end of fiscal year 2010. H.R. 847 would provide
health benefits and compensation to those who qualify based on
a combination of factors, including where they were exposed to
hazardous conditions following the terrorist attacks, and their
current and expected future health conditions. CBO's estimate
is based on an analysis of the size of the potentially affected
populations, the prevalence of certain health conditions in
those populations, the propensity to seek health services or
compensation from the program, and the monetary damages
previously awarded by the VCF through 2004.
Under H.R. 847, spending for the WTC Health Program and VCF
awards would increase direct spending, while the administrative
costs associated with the VCF would be subject to future
appropriations. Expenditures related to the WTC Health Program
would be subject to annual spending caps totaling about $4.6
billion through 2020, when the program would sunset. Award
payments under the VCF would be subject to a lifetime spending
cap of $8.4 billion through 2032, when the program would cease
operation.
On June 10, 2010, a Federal district court judge approved a
settlement between firefighters, police, contractors, and
others who worked at the World Trade Center site, and New York
City and its contractors for claims of injuries associated with
their rescue and cleanup work. To become final, the settlement
requires the participation of 95 percent of the plaintiffs, who
have yet to agree to the terms. Should that settlement become
final, CBO expects that the number and value of compensation
awards provided through the VCF would be lower than presented
in this cost estimate for H.R. 847.
Eligible Population
CBO's analysis focused on two populations--responders and
survivors. The responder population includes those who were
involved in the rescue, recovery, and cleanup efforts following
the terrorist attacks in 2001. Survivors include commuters,
residents, ``passers-by,'' and students who were in the New
York City (NYC) disaster area around the time of the attacks
and in the months following. Under H.R. 847, CBO estimates that
roughly 650,000 individuals from the NYC disaster area--
approximately 75,000 responders and 575,000 survivors--would
meet the exposure requirements specified in the legislation,
along with potentially another 10,000 responders from the
Pentagon and Shanksville, Pennsylvania, sites. Although many of
those individuals may have or develop health conditions related
to the terrorist attacks, CBO estimates that only a portion
would participate in the WTC Health Program and apply for an
award under the VCF. Overall, CBO expects that of the total
population that meets the exposure requirements, slightly less
than 15 percent would enroll in the WTC Health Program by 2020
and slightly more than 5 percent would receive awards from the
VCF. Those estimated participation rates reflect people's
willingness to enroll in government programs as well as
additional requirements that would have to be met to receive a
VCF award.
Geographic and Time-Period Requirements. Title I specifies
that individuals must have been present in the following
locations following the terrorist attacks to be eligible for
the new health program: NYC disaster area, the Pentagon site,
and the Shanksville, Pennsylvania, site. Title II would give
discretion to the VCF Special Master (appointed by the U.S.
Attorney General to administer the fund) to define the
geographic area for awards from that fund; for this estimate,
CBO assumes that the geographic areas of exposure specified in
title I would also be used as the criteria for compensation
payments under title II. Title I defines the NYC disaster area
as the part of Manhattan that is south of Houston Street and
any block in Brooklyn that is wholly or partially contained
within a 1.5-mile radius of the former World Trade Center site.
H.R. 847 would also base eligibility on the amount of time an
individual spent in the specified region. Based on those
requirements, CBO estimates that about 75,000 responders and
575,000 survivors from the NYC disaster area would meet the
geographic-eligibility and time-period requirements specified
in H.R. 847, as well as potentially another 10,000 responders
from the Pentagon and Shanksville, Pensylvania, sites.
Those estimates are based on information collected by
certain hospitals (known as the Centers of Excellence) in the
NYC area that are treating responders, New York City's
Department of Health and Mental Hygiene, the U.S. Department of
Health and Human Services, Research Triangle International, and
New York State Laborers' Tri-Fund. In particular, CBO's
analysis relies heavily on the WTC Health Registry which was
developed by New York City's Department of Health and Mental
Hygiene and the U.S. Department of Health and Human Services
(HHS) to document and evaluate the short- and long-term
physical and mental health issues associated with the terrorist
attacks and recovery efforts. The Registry established
eligibility criteria that considered an individual's residence,
location at the time of attacks, and intensity and duration of
exposure to hazardous conditions. About 71,000 individuals
enrolled voluntarily in this Registry before it closed in
November 2004.
Diseases. The bill would require a determination that the
terrorist attacks were substantially likely to be a significant
factor in aggravating, contributing to, or causing the
condition or illness prior to receiving treatment through the
WTC Health Program. Title I would specify certain physical and
mental health conditions deemed WTC-related for both responders
and survivors. Title II would give discretion to the Special
Master to determine what physical conditions would be eligible
for an award; for this estimate, CBO assumes that the diseases
specified in title I would also be used as criteria for
compensation payments.
In general, individuals whose health conditions developed
or were aggravated as a result of the terrorist attacks cannot
easily be distinguished from individuals whose conditions would
have developed or worsened in the absence of those attacks.
Therefore, CBO considered the entire population that may
develop and seek treatment for eligible physical and mental
health conditions that might be associated with the aftermath
of the terrorist attacks. The existence of a causal
relationship between the attacks and specific diseases
generally would be difficult to establish or disprove.
CBO analyzed more than a dozen studies on the incidence and
prevalence of the WTC-related health conditions in both
responders and survivors. We also analyzed data collected in
the Morbidity and Mortality Weekly Report (MMWR) and population
level data collected by the Medical Expenditure Panel Survey
(MEPS). The MEPS collects annual data pertaining to the use of
health care services, sources of payment for those services,
and health insurance coverage. Based on those analyses, CBO
estimates that about 280,000 of the individuals (about 40
percent) who meet the exposure criteria defined in the
legislation have or will develop a health condition that meets
the criteria set in the bill.
Responders who meet the geographic-eligibility criteria and
survivors who both meet the geographic-eligibility criteria and
develop a qualifying physical or mental health condition, as
defined in the bill, would be eligible to enroll in the WTC
Health Program. CBO estimates that about 50,000 responders and
230,000 survivors would develop at least one qualifying
physical or mental health condition. That estimate reflects the
prevalence of the eligible conditions among the general
population as well as the increase in prevalence attributable
to the attacks themselves.
Eligibility for an award under the VCF would differ from
that for the WTC Health Program. The VCF would only compensate
individuals with physical health conditions who have received
treatment. CBO estimates that about 100,000 responders and
survivors would meet those criteria.
Direct Spending
CBO estimates that enacting H.R. 847 would increase direct
spending by $10.5 billion over the 2011-2020 period. About $4.2
billion of that amount would result from spending for health
care benefits provided under title I. The remaining $6.3
billion would be spent on compensation payments provided under
title II.
Title I: Health Care Benefits. Under current law, the
National Institute of Occupational Safety and Health (NIOSH)
provides funding to several programs that offer medical
monitoring and treatment to responders and survivors with
conditions associated with the September 11, 2001, terrorist
attacks under the umbrella of the WTC Medical Monitoring and
Treatment Program. Those programs treat or have enrolled
approximately 60,000 individuals: about 40,000 in the Mt. Sinai
Coordinated Consortium Responder Heath Program and the National
Responder Program; about 16,000 in the Fire Department City of
New York Responder Health Program; and about 4,600 survivors in
the WTC Environmental Health Center Program. Funding for those
programs is subject to annual appropriation. For 2010, $70
million was appropriated to NIOSH through the Centers for
Disease Control and Prevention (CDC) to support those programs.
H.R. 847 would establish the WTC Health Program within HHS
to replace and expand the NIOSH programs. The WTC Health
Program would provide monitoring and treatment benefits for
qualifying health conditions to individuals who were engaged in
emergency response, recovery, and cleanup operations related to
the terrorist attacks. It also would provide monitoring and
treatment benefits to certain residents and others with a
qualifying health condition who were working, visiting, or
residing near the WTC during the year following the attacks.
H.R 847 would replace annual appropriations for the NIOSH
programs with mandatory funding for the WTC Health Program. (An
estimated reduction in authorized discretionary spending is
discussed below under ``Spending Subject to Appropriation.'')
CBO estimates that, if unconstrained, the WTC Health
Program would cost between $5 billion and $6 billion over the
2011-2020 period. In contrast, the cap on Federal spending
specified in H.R. 847 is about $4.6 billion over that same
period. Taking that spending cap into consideration, CBO
estimates that gross spending would total $4.4 billion over the
2011-2020 period. The WTC Health Program also would result in
some savings for Medicare and Medicaid, yielding a net increase
in direct spending of $4.2 billion over the 2011-2020 period,
as shown in the table on page 3. CBO also estimates that New
York City would contribute $0.5 billion to the WTC Health
Program over the 2011-2020 period.
Program Participation. The WTC Health Program would cover
individuals enrolled in the existing programs as of the date of
enactment and would allow up to an additional 25,000 responders
and 25,000 survivors to enroll in the program. H.R. 847 defines
exposure and health criteria for an eligible WTC responder and
an eligible WTC survivor. The program's administrator would be
allowed to expand those eligibility criteria until 80 percent
of the numerical limitation is reached.
CBO estimates that about 65,000 of the approximately 85,000
responders at the various sites who would meet the exposure
criteria would enroll in the WTC Health Program and that about
20 percent of those enrollees would receive treatment through
the program in a given year. We estimate that about 250,000
individuals, or roughly 40 percent of the approximately 575,000
survivors who would meet those criteria, would also meet the
health condition criteria specified in title I of H.R. 847. CBO
expects that less than 10 percent of those individuals would
enroll in the WTC Health Program by 2020. In part, this
estimate reflects the expectation that most individuals will
continue to receive care from providers who are not affiliated
with a Center of Excellence or the WTC Health Program. CBO
further expects that, in a given year, slightly less than half
of the enrolled survivors would receive treatment through the
WTC Health Program.
Survivor and Responder Health Benefits. H.R. 847 would
provide for health benefits, including monitoring and medically
necessary follow-up treatment for enrolled responders.
Survivors would receive an initial health evaluation to
determine program eligibility. Once eligibility is determined,
H.R. 847 would provide for monitoring and medically necessary
follow-up treatment for survivors. Monitoring, initial health
evaluations, and medically necessary follow-up would only be
covered when provided by Centers of Excellence or by providers
who participate in the nationwide network established by the
WTC program administrator. The WTC Health Program would also
provide funding for coordination and administrative expenses
for the Centers of Excellence. CBO estimates that the cost of
the health benefits program (including initial health
evaluations, monitoring, treatment, and administration) would
total up to $4.5 billion over the 2011-2020 period. That amount
comprises about $4.2 billion for monitoring and medically
necessary treatment and $0.3 billion for administrative costs.
The WTC Health Program would pay for the monitoring and
medically necessary treatment costs associated with a
qualifying health condition that are not covered by a patient's
primary insurer, including deductibles, copayments,
coinsurance, and other cost-sharing requirements. (As a
practical matter, the WTC Health Program would be the primary
insurer for individuals covered by Medicare.) H.R. 847
specifies a series of WTC-related health conditions; however,
H.R. 847 would authorize the administrator to approve
conditions and illnesses not specified in the legislation but
deemed to be a WTC-related health condition for treatment. The
administrator could also add illnesses and conditions to the
list of WTC-related health conditions through the rulemaking
process, which might include requesting a recommendation of the
Advisory Panel. In addition, for an individual, a condition not
on the list would be deemed to be WTC-related if a physician
determines that it was likely to have been caused or aggravated
by exposure to the terrorist attacks.
CBO estimated the cost of treatment for WTC-related health
conditions using data from MEPS, Medicare, and the Federal
Employees Compensation Act (FECA) program. CBO analyzed MEPS
data to estimate the national average cost of treating
qualifying conditions. Those costs were then adjusted to
reflect the relative costs in New York City--spending per
Medicare enrollee is about 20 percent higher in New York City
than the national average--and to account for differences
between payment rates in the FECA program and those underlying
our estimate of national average cost. Those costs were then
projected based on CBO's estimates of growth in per capita
health spending. The administrator would be required to
establish a program for necessary outpatient prescription
pharmaceuticals prescribed under this title through contracts
with one or more vendors. Separately, CBO estimated the cost of
outpatient prescription drugs and assumed that those payment
amounts would be comparable to prices paid in the private
market.
The WTC Health Program would be the secondary payer for
survivors with private insurance or Medicaid coverage and for
responders receiving benefits from a non-NYC worker's
compensation or other work-related injury or illness benefit
plan. For those individuals, the program would pay the
difference between FECA payment rates and the amounts paid by
the primary insurer; the individual would have no out-of-pocket
obligation.\1\ CBO estimates that primary insurers would cover
about 60 percent of the cost of treating WTC-related health
conditions for those individuals, with the WTC Health Program
paying the rest.
---------------------------------------------------------------------------
\1\For responders employed by New York City, all WTC-related
conditions would be considered work-related. The legislation would
relieve the city's worker's compensation program or other work-related
injury or illness benefit plan of the obligation to pay for those
conditions in return for the city's participation in the financing of
the WTC Health Program.
---------------------------------------------------------------------------
CBO estimates that Federal spending for Medicaid would be
reduced by about $30 million over the 2011-2020 period. Those
savings would occur largely because, in some cases, providers
would bill the WTC Health Program instead of Medicaid to avoid
the administrative cost of dealing with two payers.
The WTC Health Program would reduce Medicare spending
because it would replace Medicare as the primary payer for
individuals enrolled in Medicare. CBO estimates that Medicare
savings would total about $155 million over the 2011-2020
period.
CBO estimates that costs incurred to administer health
evaluations, monitor, and provide treatment would total up to
$0.3 billion over the 2011-2020 period. H.R. 847 would direct
the administrator to enter into contracts with Clinical Centers
of Excellence to provide monitoring and treatment benefits and
initial health evaluations, counseling, outreach, translational
and interpretive services, and to collect and report on
utilization, incidence, and prevalence data.
Other Health Benefits and Program Funding. H.R. 847 would
provide funding for:
LMental health benefits for surviving family
members of responders who died at the WTC site on
September 11, 2001;
LCreation of a scientific committee and
technical advisory committee;
LEducation and outreach;
LUniform data collection;
LResearch pertaining to conditions related to
the September 11, 2001, terrorist attacks; and
LMaintaining ongoing data collection through
the WTC health registry.
The bill specifies a maximum amount for each of those
activities. CBO estimates that the costs of those activities
would total up to $0.5 billion over the 2011-2020 period. In
addition, H.R. 847 would provide funding for training and
technical assistance, transportation expenses, and claims
processing. CBO estimates that the costs of those activities
would total an additional $0.2 billion over the 2011-2020
period. Thus, the total cost of other activities would total up
to $0.7 billion over the 2011-2020 period.
World Trade Center Health Program Fund. H.R. 847 would
establish the WTC Health Program Fund to pay for the benefits
included under title I. New York City and the Federal
Government would contribute to the fund based on percentages
and amounts provided in the legislation.
The legislation would authorize implementation of the WTC
Health Program only if New York City enters into a contract
with the WTC program administrator in which the city agrees to
pay 10 percent of program costs. This estimate assumes that the
city would enter into that contract and that the city would
reimburse the WTC Health Program within six to nine months.
(Alternatively, if the city would not enter into a contract
with the administrator, CBO expects that no payments would be
made from the WTC Health Program Fund, resulting in no increase
in direct spending over the 2011-2020 period.)
The Federal Government would be required to contribute the
lesser of 90 percent of the program expenditures or an annual
amount specified in the legislation. That cap on Federal
spending would rise from $71 million in 2011 to $743 million in
2020 and would total about $4.6 billion over the 2011-2020
period.
In the absence of a cap, CBO estimates that the Federal
share of annual expenditures for the WTC Health Program would
probably be about 1 percent to 5 percent higher than the annual
caps. However, CBO's cost estimate targets the midpoint of a
distribution of likely spending outcomes. Establishing a cap on
annual spending truncates that distribution of likely outcomes
by eliminating the potential for spending above the cap.
Therefore, the middle of the truncated range of likely spending
outcomes would be slightly below the cap. As a result, CBO
estimates that Federal spending would total about $4.4 billion
over the 2011-2020 period.
H.R. 847 would require New York City to cover 10 percent of
the expenditures for carrying out title I. If the city pays its
share, the WTC Health Program would assume responsibility for
treatment costs for responders that would under current law be
the responsibility of the city's worker's compensation or other
work-related injury or illness benefit plan. Late payments from
the city would accrue interest on the unpaid amount. For the
purpose of our estimate, we assume that New York City would
make payments on time. If the city fails to pay pursuant to its
contract with the administrator and interest accrues on the
unpaid amount, the Federal expenditures would reach the cap
more quickly.
CBO estimates that the city of New York would contribute
about $0.5 billion over the 2011-2020 period.
Title II: Compensation Payments. Title II would reopen the
September 11, 2001, Victim Compensation Fund, which provided
compensation to any individual (or relatives of a deceased
individual) who was physically injured or killed as a result of
the terrorist attacks. The VCF, which terminated operations in
2004, was established by the Air Transportation Safety and
System Stabilization Act (Public Law 107-42) as an
administrative alternative to litigation. That act created a
Special Master, who determined the compensation levels based on
specified eligibility criteria and subsequent regulations.
Through 2004, the VCF made 2,880 death and 2,680 injury awards,
totaling more than $7 billion (about $6 billion was for death
awards). Public Law 107-42 did not cap the number or amount of
awards that could be issued by the Special Master.
H.R. 847 would establish broader eligibility rules for
compensation than those established for the VCF under Public
Law 107-42. Under the bill, total payments would be capped at
$8.4 billion through 2032. CBO estimates that compensation
payments would total $6.3 billion over the 2011-2020 period,
with about 90 percent ($5.7 billion) of those payments made in
the first five years following enactment. Most of the awards
would be for physical injuries associated with the attacks or
with debris removal and response activities following the
attacks. CBO estimates that the VCF would make additional
payments totalling about $300 million after 2020.
CBO's estimate of those payments is based on a number of
assumptions and projections regarding eligibility, average
award amounts, and attorneys' fees.
Changes in Eligibility. Title II would make many more
individuals who were involved in the rescue, recovery, and
cleanup efforts potentially eligible for compensation. Based on
information provided by the previous Special Master of the VCF,
CBO assumes that the VCF would be administered in the same
manner as it was previously but would reflect new regulations
written after the bill's enactment. Those regulations would
reflect the following changes made by the bill:
LTime Present at Site: Eligibility would be
determined in part based on the time an individual was
present or near the sites of the terrorist attacks.
Specifically, the bill would require that an eligible
individual must have been at those sites some time
during the period beginning on September 11, 2001, and
ending on August 30, 2002. Prior to the sunset of the
original VCF, the implementing regulations required
that an individual had to have been present at those
sites during the 12 hours immediately following the
attacks, or for responders, 96 hours after the attacks.
LGeographical Expansion: Based on regulations
promulgated under Public Law 107-42, the Special Master
originally defined the crash site as a zone bounded by
specific streets very close to the WTC area. H.R. 847
would expand the definition of the crash site to
include routes related to debris removal (such as
barges and landfills). Although the bill does not
specify other changes to the site definition, the
Special Master would have discretion to expand the site
if it is determined that there was demonstrable risk of
physical harm in adjacent areas. For this estimate, CBO
assumes that the new regulations would extend the
boundaries to be the same as those defined for
eligibility for the health care benefits authorized in
title I of the bill.
LExtended Claims Filing Deadlines: Generally,
the filing deadline under the bill would depend
primarily on when the Special Master determines that a
claimant realizes that he or she suffered some form of
physical harm resulting from the terrorist attacks or
associated debris removal. If the Special Master
determines that a claimant was aware (or should have
been aware) of such an injury by the time the
regulations are promulgated, the claimant would have
two years to file from that time (roughly by the end of
December 2012). For all others, if a claimant realizes
such an injury after the new regulations are finalized,
the claimant would have two years from when the Special
Master determines that the claimant should have been
aware of such injury. All claims would have to be filed
by December 22, 2031.
Awards and Average Award Amount. CBO expects that the
bill's expanded eligibility criteria would significantly
increase the number of individuals who could seek compensation
from the VCF. CBO expects that most of the awards would be for
injuries associated with the attacks, and therefore our
analysis focused on those claims. Further, the bill would not
provide compensation for mental health conditions although it
would provide treatment for mental illnesses under title I.
Over the next 10 years, CBO estimates that about 35,000 awards
would be made, with an average award amount of about $180,000.
LNumber of Awards: CBO expects that the number
awards would depend largely on the estimated number of
responders and survivors who have or will have health
conditions or symptoms associated with the terrorist
attacks and recovery efforts, and are being treated for
such conditions. Under H.R. 847, the VCF would require
that all claimants prove they were treated by medical
professionals and provide contemporaneous medical
records to verify that treatment. CBO estimates that
about 100,000 individuals--nearly 25,000 responders and
more than 75,000 survivors--would meet that additional
eligibility requirement.
L CBO estimated the proportion of those individuals
who would file a claim by reviewing studies on the
propensity of individuals to seek legal remedy for
injuries. Although CBO estimates that the overall claim
rate would be a bit under 50 percent, we expect that
responders would have a much higher filing rate than
survivors because of their involvement in the existing
treatment programs at the Centers of Excellence and
because of the efforts by certain union organizations
to publicize the possible health issues associated with
the cleanup efforts.
L Taking into account the VCF's previous approval
rate and the approval rates of other compensation
programs, CBO estimates that about 35,000 awards would
be made, including payments to nearly 20,000 responders
and 15,000 survivors. CBO expects that the number of
death claims would be very small because there is
little evidence that many individuals have died from
injuries caused by the 2001 terrorist attacks after
compensation benefits were first awarded.
LAverage Award Amount: Under the bill, award
amounts would be determined in the same way as they
were before the sunset of the original VCF. Awards
would comprise two parts--economic and noneconomic
loss--adjusted for collateral offsets such as pensions.
For injury victims, economic loss would reflect the
actual lost income or expenses incurred as a direct
result of the injury and future lost income and costs
due to those injuries. Noneconomic loss would reflect
compensation for pain and suffering due to injuries
associated with the attacks. Awards, which would be
provided in one payment, would be determined within 120
days of filing the claim and paid within 20 days of
such determination.
L Based on information provided by administrators of
the previous VCF program, CBO estimates that the
average injury award would be about $180,000. (For
death claims, the average award would be about $2
million, the same amount provided under the original
VCF.) CBO estimated the average injury award by
considering the characteristics of the current
population enrolled in WTC Medical Monitoring and
Treatment Programs, including average age, extent of
disability, estimated income, and employer-provided
benefits such as pensions and health insurance. CBO
estimates that the average award would be higher for
responders--about $240,000 per claim--because we expect
that a greater proportion of responders have more
serious injuries. In contrast, we estimate that awards
for survivors would average about $100,000. The award
estimates also were adjusted to account for certain
health care benefits provided under title I.
Attorneys' Fees. This estimate does not include any
significant additional costs for attorneys' compensation that
the Special Master could award under the bill. The bill would
give the Special Master discretion to provide compensation to
attorneys for services rendered on cases filed in district
court for injuries associated with the terrorist attacks, but
CBO expects that this authority would be used sparingly, based
on the historical experience of the VCF. Previously, attorneys
provided free legal assistance to claimants.
Spending Subject to Appropriation
CBO estimates that implementing H.R. 847 would decrease
discretionary spending by $174 million over the 2011-2020
period.
Administering VCF Awards. Under H.R. 847, additional
funding would be required to administer the VCF. The original
compensation program was administered by the Department of
Justice's (DOJ's) Civil Division. About $87 million was spent
to process about 7,400 claims, and the average administrative
cost per claim was about $11,500. Under the bill, CBO assumes
that DOJ would again administer and oversee the program.
Based on information provided by DOJ, CBO estimates that
the average cost to process a claim under H.R. 847 would be
about $10,000. CBO expects that the average cost would be lower
than under the original program because the administrative
infrastructure already exists and because we assume that
certain efficiencies would be achieved with a larger number of
claims. In total, CBO estimates that, assuming appropriation of
the necessary amounts, administrative costs for the program
would total $483 million over 2011-2015 period and $514 million
over the 2011-2020 period to process an estimated 50,000
claims, including many from individuals who would not qualify
for an award. Most of that amount would be for salaries of
hundreds of individuals to process millions of documents,
operate a claims management system, and manage 20 to 30 claims-
assistance sites around the country. Compensation also would be
provided for DOJ attorneys, administrative law judges, and
support staff.
NOISH World Trade Center Health Program. As discussed
above, the enactment of H.R. 847 would replace annual
appropriations with mandatory funding for NIOSH through CDC.
Under the current-law baseline, CBO projects that discretionary
appropriations will continue at the current level of funding
adjusted annually for anticipated inflation. Assuming
appropriation actions consistent with the bill, CBO estimates
that appropriations for NIOSH would be reduced by $71 million
in 2011 and increasing amounts in subsequent years because that
baseline spending would be replaced by new direct spending
under H.R. 847. We estimate that the reduction in
appropriations would total $764 million over the 2011-2020
period, resulting in a corresponding reduction in outlays of
$688 million over the same period.
PAY-AS-YOU-GO CONSIDERATIONS
The Statutory Pay-As-You-Go Act of 2010 establishes budget
reporting and enforcement procedures for legislation affecting
direct spending or revenues. The net changes in outlays that
are subject to those pay-as-you-go procedures are shown in the
following table.
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
H.R. 847 contains no intergovernmental mandates as defined
in UMRA. The bill would place conditions on the city of New
York for participating in the health program authorized by the
bill, but those conditions would not be intergovernmental
mandates as defined in UMRA.
ESTIMATED IMPACT ON THE PRIVATE SECTOR
H.R. 847 would impose a private-sector mandate as defined
in UMRA by limiting the liability of New York City, any entity
with a property interest in the World Trade Center on September
11, 2001, and any contractors and subcontractors thereof.
Liability would be limited to the total amount of available
insurance coverage of those entities for compensatory damages
or other relief arising from or related to debris removal from
sites of the terrorist attacks. By limiting the liability of
those entities, the bill would impose a mandate on individuals
seeking compensatory damages or other relief. Because of
uncertainty about the potential amount of the awards and the
ability of the city of New York and other entities whose
liability would be limited to pay for any awards in excess of
the liability limit, CBO cannot determine the costs the mandate
would impose on the affected individuals.
ESTIMATE PREPARED BY:
Federal Costs: Stephanie Cameron, Leigh Angres, and Chapin
White
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum
Impact on the Private Sector: Sarah Axeen
ESTIMATE APPROVED BY:
Holly Harvey, Deputy Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
847 will establish a program to provide health care monitoring
and treatment to persons injured during recovery efforts and
debris removal at September 11, 2001 crash sites, and it will
reopen the September 11 Victim Compensation Fund to provide
compensation for such injured individuals.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 3 of the
Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 847 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title; Table of Contents. Section 1 sets
forth the short title of the bill as the ``James Zadroga 9/11
Health and Compensation Act of 2010.'' The section also sets
forth the table of contents of the bill.
Sec. 2. Findings. Section 2 sets forth several findings of
Congress.
Sec. 101. World Trade Center Health Program. Section 101
amends the Public Health Service Act to establish the World
Trade Center Health Program (WTC program) within the National
Institute for Occupational Safety and Health to provide medical
monitoring and treatment benefits to emergency responders,
recovery and cleanup workers, area residents and others who
were directly impacted and adversely affected by the attacks of
September 11, 2001.
Sec. 201. Definitions. Section 201 amends the original
Victim Compensation Fund provisions within the Air
Transportation Safety and System Stabilization Act as follows:
Lamends the definition of ``collateral
source'' by including payments related to debris
removal;
Ldefines ``contractor and subcontractor'' to
mean any entity that participated in debris removal at
any September 11 crash site, except for any such entity
with a property interest in the World Trade Center on
September 11, 2001;
Ldefines ``debris removal'' to mean rescue and
recovery efforts, removal of debris, cleanup,
remediation, and response during the immediate
aftermath of the September 11 attacks;
Ldefines ``immediate aftermath'' to mean any
period beginning with the terrorist-related aircraft
crashes of September 11, 2001, and ending on August 30,
2002; and
Ldefines ``9/11 crash site'' to mean: (1) the
World Trade Center, Pentagon, and Shanksville,
Pennsylvania crash sites; (2) the buildings or portions
of buildings destroyed as a result of the September 11
aircraft crashes; (3) any areas contiguous to the site
of such crashes that the Special Master determines are
sufficiently close to the site so that there was a
demonstrable risk of physical harm resulting from the
impact of the aircraft or any subsequent fire,
explosions, or building collapses; and (4) any area
related to, or along, routes of debris removal, such as
barges and Fresh Kills.
Sec. 202. Extended and Expanded Eligibility for
Compensation. Section 202 amends the Air Transportation Safety
and System Stabilization Act to generally extend and expand
eligibility for compensation under the Victim Compensation
Fund.
Subsection (a) requires that the eligibility claim form for
compensation benefits be amended to also request information
concerning physical harm or death resulting from debris removal
related to the September 11 attacks.
Subsection (b) provides new deadlines for claims related to
physical harm or death from debris removal at the crash sites
that would extend to December 22, 2031.
Subsection (c) establishes timing and proof requirements
for claims filed during the extended filing period.
Subsection (d) makes a technical correction to the original
Victims Compensation Fund to clarify that claimants may include
individuals who were present at other September 11 aircraft
crash sites at the time of, or in the immediate aftermath of,
the aircraft crashes.
Subsection (e) amends the eligibility requirements for
claimants to include individuals who suffered physical harm
resulting from debris removal.
Subsection (f) requires an individual filing a claim for
compensation related to debris removal to waive his or her
right to file a civil action or be party to such action in any
Federal or state court for damages sustained as the result of
the September 11 terrorist attacks. Any individual who was a
party to such action, withdrew from such action in order to
submit a claim for compensation, and was found ineligible for
compensation, is permitted to reinstitute the civil action
without prejudice during the 90-day period after ineligibility
is determined.
Sec. 203. Requirement to Update Regulations. Section 203
amends the Air Transportation Safety and System Stabilization
Act to require the Special Master to update, within 90 days of
enactment, VCF regulations to reflect the changes made by this
Act.
Sec. 204. Limited Liability for Certain Claims. Section 204
amends the Air Transportation Safety and System Stabilization
Act to limit the liability of certain entities for civil claims
and actions arising from or related to debris removal,
including claims or actions previously resolved, currently
pending, and that may be filed through December 22, 2031.
Liability for such claims or actions is limited to the amount
of funds held by the World Trade Center Captive Insurance
Company, the amount of available insurance coverage identified
in schedule 2 of the Captive Insurance Company insurance
policy, and the amount of insurance coverage held by the City
of New York, by entities with a property interest in the World
Trade Center on September 11, 2001, and by contractors and
subcontractors that participated in debris removal.
Section 204 specifically provides that the individual
liability of the City of New York is limited to the City's
insurance coverage or $350,000,000, whichever is greater. The
liability of the Port Authority of New York and New Jersey and
any other entity with a property interest in the World Trade
Center on September 11, 2001 is limited to the amount of all
available insurance coverage maintained by any such entity. The
liability of any contractor or subcontractor that participated
in debris removal is limited to the amount of available
liability insurance maintained by such contractor or
subcontractor.
Section 204 also establishes a priority of funds from which
plaintiffs may satisfy judgments or settlements obtained for
civil claims or actions related to debris removal. The priority
requires exhaustion of amounts held by the Captive Insurance
Company and identified insurance policies, followed by
exhaustion of the amount for which the City of New York is
liable, followed by exhaustion of the available insurance
coverage maintained by the Port Authority and other entities
with a property interest in the World Trade Center on September
11, 2001, followed by exhaustion of the available insurance
coverage maintained by contractors and subcontractors. In
addition, section 204 specifies that any party to a claim or
action can file an action for a declaratory judgment for
insurance coverage or bring a direct action against the
insurance company involved.
Sec. 205. Funding; Attorney Fees. Section 205 amends the
Air Transportation Safety and System Stabilization Act to cap
the total payment of amounts for compensation from the VCF to
$8.4 billion with respect to claims filed on or after the
Special Master updates the Fund's regulations. Section 205
would also cap at 10 percent the percentage of compensation
that attorneys could receive in fees, except that the Special
Master is given the discretion to raise this percentage for
certain cases filed in the Southern District of New York prior
to January 1, 2009. This discretion is provided to the Special
Master to address cases where the 10 percent cap on attorneys'
fees may not provide adequate compensation for services
rendered in connection with a claim because of the substantial
amount of legal work expended on that claim during the period
after which the initial period for filing claims under the VCF
expired.
Changes in Existing Law Made by the Bill, as Reported
The bill was referred to this committee for consideration of
such provisions of the bill as fall within the jurisdiction of
this committee pursuant to clause 2 of rule XII of the Rules of
the House of Representatives. In compliance with clause 3(e) of
rule XIII of the Rules of the House of Representatives, changes
in existing law made by the bill, as reported, are shown as
follows (existing law proposed to be omitted is enclosed in
black brackets, new matter is printed in italics, existing law
in which no change is proposed is shown in roman):
AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACT
TITLE IV--VICTIM COMPENSATION
* * * * * * *
SEC. 402. DEFINITIONS.
In this title, the following definitions apply:
(1) * * *
* * * * * * *
(6) Collateral source.--The term ``collateral
source'' means 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, or debris removal, including under
the World Trade Center Health Program established under
section 3001 of the Public Health Service Act.
(7) Contractor and subcontractor.--The term
``contractor and subcontractor'' means any contractor
or subcontractor (at any tier of a subcontracting
relationship), including any general contractor,
construction manager, prime contractor, consultant, or
any parent, subsidiary, associated or allied company,
affiliated company, corporation, firm, organization, or
joint venture thereof that participated in debris
removal at any 9/11 crash site. Such term shall not
include any entity, including the Port Authority of New
York and New Jersey, with a property interest in the
World Trade Center, on September 11, 2001, whether fee
simple, leasehold or easement, direct or indirect.
(8) Debris removal.--The term ``debris removal''
means rescue and recovery efforts, removal of debris,
cleanup, remediation, and response during the immediate
aftermath of the terrorist-related aircraft crashes of
September 11, 2001, with respect to a 9/11 crash site.
[(7)] (9) Economic loss.--The term ``economic loss''
means any pecuniary loss resulting from harm (including
the loss of earnings or other benefits related to
employment, medical expense loss, replacement services
loss, loss due to death, burial costs, and loss of
business or employment opportunities) to the extent
recovery for such loss is allowed under applicable
State law.
[(8)] (10) Eligible individual.--The term ``eligible
individual'' means an individual determined to be
eligible for compensation under section 405(c).
(11) Immediate aftermath.--The term ``immediate
aftermath'' means any period beginning with the
terrorist-related aircraft crashes of September 11,
2001, and ending on August 30, 2002.
[(9)] (12) Noneconomic losses.--The term
``noneconomic losses'' means losses for physical and
emotional pain, suffering, inconvenience, physical
impairment, mental anguish, disfigurement, loss of
enjoyment of life, loss of society and companionship,
loss of consortium (other than loss of domestic
service), hedonic damages, injury to reputation, and
all other nonpecuniary losses of any kind or nature.
[(10)] (13) Special master.--The term ``Special
Master'' means the Special Master appointed under
section 404(a).
(14) 9/11 crash site.--The term ``9/11 crash site''
means--
(A) the World Trade Center site, Pentagon
site, and Shanksville, Pennsylvania site;
(B) the buildings or portions of buildings
that were destroyed as a result of the
terrorist-related aircraft crashes of September
11, 2001;
(C) any area contiguous to a site of such
crashes that the Special Master determines was
sufficiently close to the site that there was a
demonstrable risk of physical harm resulting
from the impact of the aircraft or any
subsequent fire, explosions, or building
collapses (including the immediate area in
which the impact occurred, fire occurred,
portions of buildings fell, or debris fell upon
and injured individuals); and
(D) any area related to, or along, routes of
debris removal, such as barges and Fresh Kills.
* * * * * * *
SEC. 405. DETERMINATION OF ELIGIBILITY FOR COMPENSATION.
(a) Filing of Claim.--
(1) * * *
(2) Claim form.--
(A) * * *
(B) Contents.--The form developed under
subparagraph (A) shall request--
(i) information from the claimant
concerning the physical harm that the
claimant suffered, or in the case of a
claim filed on behalf of a decedent
information confirming the decedent's
death, as a result of the terrorist-
related aircraft crashes of September
11, 2001, or debris removal during the
immediate aftermath;
(ii) information from the claimant
concerning any possible economic and
noneconomic losses that the claimant
suffered as a result of such crashes or
debris removal during the immediate
aftermath; and
(iii) information regarding
collateral sources of compensation the
claimant has received or is entitled to
receive as a result of such crashes or
debris removal during the immediate
aftermath.
[(3) Limitation.--No claim may be filed under
paragraph (1) after the date that is 2 years after the
date on which regulations are promulgated under section
407.]
(3) Limitation.--
(A) In general.--Except as provided by
subparagraph (B), no claim may be filed under
paragraph (1) after the date that is 2 years
after the date on which regulations are
promulgated under section 407(a).
(B) Exception.--A claim may be filed under
paragraph (1), in accordance with subsection
(c)(3)(A)(i), by an individual (or by a
personal representative on behalf of a deceased
individual) during the period beginning on the
date on which the regulations are updated under
section 407(b) and ending on December 22, 2031.
* * * * * * *
(c) Eligibility.--
(1) * * *
(2) Individuals.--A claimant is an individual
described in this paragraph if the claimant is--
(A) an individual who--
(i) was present at the World Trade
Center, (New York, New York), the
Pentagon (Arlington, Virginia), [or the
site of the aircraft crash at
Shanksville, Pennsylvania] the site of
the aircraft crash at Shanksville,
Pennsylvania, or any other 9/11 crash
site at the time, or in the immediate
aftermath, of the terrorist-related
aircraft crashes of September 11, 2001;
and
(ii) suffered physical harm or death
as a result of such an air crash or
debris removal;
* * * * * * *
(3) Requirements.--
(A) Requirements for filing claims during
extended filing period.--
(i) Timing requirements for filing
claims.--An individual (or a personal
representative on behalf of a deceased
individual) may file a claim during the
period described in subsection
(a)(3)(B) as follows:
(I) In the case that the
Special Master determines the
individual knew (or reasonably
should have known) before the
date specified in clause (iii)
that the individual suffered a
physical harm at a 9/11 crash
site as a result of the
terrorist-related aircraft
crashes of September 11, 2001,
or as a result of debris
removal, and that the
individual knew (or should have
known) before such specified
date that the individual was
eligible to file a claim under
this title, the individual may
file a claim not later than the
date that is 2 years after such
specified date.
(II) In the case that the
Special Master determines the
individual first knew (or
reasonably should have known)
on or after the date specified
in clause (iii) that the
individual suffered such a
physical harm or that the
individual first knew (or
should have known) on or after
such specified date that the
individual was eligible to file
a claim under this title, the
individual may file a claim not
later than the last day of the
2-year period beginning on the
date the Special Master
determines the individual first
knew (or should have known)
that the individual both
suffered from such harm and was
eligible to file a claim under
this title.
(ii) Other eligibility requirements
for filing claims.--An individual may
file a claim during the period
described in subsection (a)(3)(B) only
if--
(I) the individual was
treated by a medical
professional for suffering from
a physical harm described in
clause (i)(I) within a
reasonable time from the date
of discovering such harm; and
(II) the individual's
physical harm is verified by
contemporaneous medical records
created by or at the direction
of the medical professional who
provided the medical care.
(iii) Date specified.--The date
specified in this clause is the date on
which the regulations are updated under
section 407(a).
[(A)] (B) Single claim.--Not more than one
claim may be submitted under this title by an
individual or on behalf of a deceased
individual.
[(B)] (C) Limitation on civil action.--
(i) In general.--Upon the submission
of a claim under this title, the
claimant waives the right to file a
civil action (or to be a party to an
action) in any Federal or State court
for damages sustained as a result of
the terrorist-related aircraft crashes
of September 11, 2001, or for damages
arising from or related to debris
removal. The preceding sentence does
not apply to a civil action to recover
collateral source obligations, or to a
civil action against any person who is
a knowing participant in any conspiracy
to hijack any aircraft or commit any
terrorist act.
[(ii) Pending actions.--In the case
of an individual who is a party to a
civil action described in clause (i),
such individual may not submit a claim
under this title unless such individual
withdraws from such action by the date
that is 90 days after the date on which
regulations are promulgated under
section 407.]
(ii) Pending actions.--In the case of
an individual who is a party to a civil
action described in clause (i), such
individual may not submit a claim under
this title--
(I) during the period
described in subsection
(a)(3)(A) unless such
individual withdraws from such
action by the date that is 90
days after the date on which
regulations are promulgated
under section 407(a); and
(II) during the period
described in subsection
(a)(3)(B) unless such
individual withdraws from such
action by the date that is 90
days after the date on which
the regulations are updated
under section 407(b).
(iii) Authority to reinstitute
certain lawsuits.--In the case of a
claimant who was a party to a civil
action described in clause (i), who
withdrew from such action pursuant to
clause (ii), and who is subsequently
determined to not be an eligible
individual for purposes of this
subsection, such claimant may
reinstitute such action without
prejudice during the 90-day period
beginning after the date of such
ineligibility determination.
SEC. 406. PAYMENTS TO ELIGIBLE INDIVIDUALS.
(a) In General.--[Not later than] Subject to subsection (d),
not later than 20 days after the date on which a determination
is made by the Special Master regarding the amount of
compensation due a claimant under this title, the Special
Master shall authorize payment to such claimant of the amount
determined with respect to the claimant.
(b) Payment Authority.--[This title] Subject to subsection
(d), this title constitutes budget authority in advance of
appropriations Acts and represents the obligation of the
Federal Government to provide for the payment of amounts for
compensation under this title.
* * * * * * *
(d) Limitation.--The total payment of amounts for
compensation under this title, with respect to claims filed on
or after the date on which the regulations are updated under
section 407(b), shall not exceed $8,400,000,000.
(e) Attorney Fees.--
(1) In general.--Notwithstanding any contract, and
except as provided in paragraph (2), the representative
of an individual may not charge, for services rendered
in connection with the claim of an individual under
this title, more than 10 percent of an award made under
this title on such claim.
(2) Exception.--With respect to a claim made on
behalf of an individual for whom a lawsuit was filed in
the Southern District of New York prior to January 1,
2009, in the event that the representative believes in
good faith that the fee limit set by paragraph (1) will
not provide adequate compensation for services rendered
in connection with such claim because of the
substantial amount of legal work provided on behalf of
the claimant (including work performed before the
enactment of this legislation), application for greater
compensation may be made to the Special Master. Upon
such application, the Special Master may, in his or her
discretion, award as reasonable compensation for
services rendered an amount greater than that allowed
for in paragraph (1). Such fee award will be final,
binding, and non-appealable.
SEC. 407. REGULATIONS.
[Not later than] (a) In General._Not later than 90 days after
the date of enactment of this Act, the Attorney General, in
consultation with the Special Master, shall promulgate
regulations to carry out this title, including regulations with
respect to--
(1) * * *
* * * * * * *
(b) Updated Regulations.--Not later than 90 days after the
date of the enactment of the James Zadroga 9/11 Health and
Compensation Act of 2010, the Special Master shall update the
regulations promulgated under subsection (a) to the extent
necessary to comply with the provisions of title II of such
Act.
SEC. 408. LIMITATION ON LIABILITY.
(a) In General.--
(1) * * *
* * * * * * *
(4) Liability for certain claims.--Notwithstanding
any other provision of law, liability for all claims
and actions (including claims or actions that have been
previously resolved, that are currently pending, and
that may be filed through December 22, 2031) for
compensatory damages, contribution or indemnity, or any
other form or type of relief, arising from or related
to debris removal, against the City of New York, any
entity (including the Port Authority of New York and
New Jersey) with a property interest in the World Trade
Center on September 11, 2001 (whether fee simple,
leasehold or easement, or direct or indirect) and any
contractors and subcontractors, shall not be in an
amount that exceeds the sum of the following, as may be
applicable:
(A) The amount of funds of the WTC Captive
Insurance Company, including the cumulative
interest.
(B) The amount of all available insurance
identified in schedule 2 of the WTC Captive
Insurance Company insurance policy.
(C) As it relates to the limitation of
liability of the City of New York, the amount
that is the greater of the City of New York's
insurance coverage or $350,000,000. In
determining the amount of the City's insurance
coverage for purposes of the previous sentence,
any amount described in clauses (i) and (ii)
shall not be included.
(D) As it relates to the limitation of
liability of any entity, including the Port
Authority of New York and New Jersey, with a
property interest in the World Trade Center on
September 11, 2001 (whether fee simple,
leasehold or easement, or direct or indirect),
the amount of all available liability insurance
coverage maintained by any such entity.
(E) As it relates to the limitation of
liability of any individual contractor or
subcontractor, the amount of all available
liability insurance coverage maintained by such
contractor or subcontractor on September 11,
2001.
(5) Priority of claims payments.--Payments to
plaintiffs who obtain a settlement or judgment with
respect to a claim or action to which paragraph (4)(A)
applies, shall be paid solely from the following funds
in the following order, as may be applicable:
(A) The funds described in clause (i) or (ii)
of paragraph (4)(A).
(B) If there are no funds available as
described in clause (i) or (ii) of paragraph
(4)(A), the funds described in clause (iii) of
such paragraph.
(C) If there are no funds available as
described in clause (i), (ii), or (iii) of
paragraph (4)(A), the funds described in clause
(iv) of such paragraph.
(D) If there are no funds available as
described in clause (i), (ii), (iii), or (iv)
of paragraph (4)(A), the funds described in
clause (v) of such paragraph.
(6) Declaratory judgment actions and direct action.--
Any party to a claim or action to which paragraph
(4)(A) applies may, with respect to such claim or
action, either file an action for a declaratory
judgment for insurance coverage or bring a direct
action against the insurance company involved.
* * * * * * *
Dissenting Views
Despite its success, the fund has not set a
precedent. Congress has not authorized similar
compensation for the thousands of victims of Hurricane
Katrina, for those injured by other natural disasters
or for the families of those killed in such tragedies.
Nor has Congress exhibited such generosity toward U.S.
soldiers wounded, or the families of those killed, in
Iraq and Afghanistan.
The same is true of victims of terrorist attacks that
took place before Sept. 11, 2001. The Navy personnel
who died in the suicide attack on the USS Cole and the
victims of the Oklahoma City bombing received no such
public compensation. Even the victims of the first
terrorist attack on the World Trade Center, in 1993,
were denied. Cold though it may sound, this is as it
should be.
Bad things happen to good people every day; Congress
does not come to their financial rescue with generous,
tax-free checks. In our free society, based on notions
of limited government and equal protection of the laws,
we simply do not expect the government to step in
whenever misfortune strikes. This is not out of concern
about bankrupting the Treasury. It is because our
heritage teaches that we all must take our chances in
life.
--Kenneth R.
Feinberg\1\
---------------------------------------------------------------------------
\1\Kenneth R. Feinberg, 9/11 Fund: Once Was Enough, Wash. Post,
September 11, 2008, at A17. Kenneth R. Feinberg was the Special Master
of the September 11th Victim Compensation Fund.
INTRODUCTION
Eight years ago, just 11 days after the terrorist attacks
of September 11th, Congress passed the Air Transportation
Safety and System Stability Act,\2\ which created the September
11th Victim Compensation Fund, and President Bush quickly
signed it into law. This bipartisan bill was one-of-a-kind
legislation, providing generous public compensation to the
physically injured and to the families of the dead. The
original 9/11 Fund successfully served its purpose by
effectively and efficiently providing a short-term,
administrative, no-fault alternative to tort litigation to
compensate the victims. The Fund paid out over $7 billion in
taxpayer dollars to 5,560 eligible claimants.
---------------------------------------------------------------------------
\2\Pub. L. No. 107-42 (2001), 115 Stat. 230 (2001) (codified at 49
U.S.C. Sec. 40101 note).
---------------------------------------------------------------------------
The original fund reflected national solidarity towards the
victims and expressed a national sense of compassion not only
to the victims, but to the rest of the world. It was ``an
expression of the best in the American character.''\3\ The
question H.R. 847 raises is whether Congress should pass a new
9/11 Fund, with different terms than the original fund, or
whether the original fund should be considered a unique,
singular response to an unprecedented tragedy. The answer to
that question--at least with regard to H.R. 847 in its current
form--is that a new 9/11 Fund should not be enacted.
---------------------------------------------------------------------------
\3\H.R. 847, the ``James Zadroga 9/11 Health and Compensation Act
of 2009'': Joint Hearing Before the Subcomm. on the Constitution and
the Subcomm. on Immigration of the House Comm. on the Judiciary, 111th
Cong. (2009) (statement of Kenneth R. Feinberg).
---------------------------------------------------------------------------
The approach H.R. 847 takes ``does not have the advantages
that made the [original 9/11 Fund] successful, and magnifies
the disadvantages and fairness problems of the [original 9/11
Fund].''\4\ Three of the main problems with H.R. 847 are that
(1) it leaves the fund open for 22 years, well beyond what is
needed to take care of any latent claims; (2) gives the Special
Master virtually unbounded authority, that will not work for a
long-term (22 years) compensation program involving a
substantially larger set of potential claimants than the
original 9/11 Fund with injuries of more ambiguous causation;
and (3) the nature of the fund will make it highly susceptible
to waste, fraud, and abuse.
---------------------------------------------------------------------------
\4\H.R. 847, the ``James Zadroga 9/11 Health and Compensation Act
of 2009'': Joint Hearing Before the Subcomm. on the Constitution and
the Subcomm. on Immigration of the House Comm. on the Judiciary, 111th
Cong. (2009) (statement of Theodore H. Frank) (``Frank testimony'') .
---------------------------------------------------------------------------
In short, while there is a sympathetic and potentially
deserving class of claimants and while there is good reason to
give the construction contractors that aided after 9/11 in the
recovery and cleanup efforts liability protection, the fund
that will be created by H.R. 847 is not narrowly and
appropriately tailored towards those ends. Accordingly,
Congress should not create the new 9/11 Fund contained in H.R.
847.
BACKGROUND
Title II of H.R. 847 will create a new September 11th
Victim Compensation Fund (``VCF''), which will be open until
December 22, 2031, to provide compensation for individuals who
did not file before, or became ill after, the December 22, 2003
filing deadline for the original fund. In addition, Title II
will limit the liability of defendants--including the
contractors and subcontractors that aided in the rescue,
recovery, and cleanup efforts--for lawsuits previously
resolved, currently pending, or filed through December 22,
2031, related to the rescue, recovery, and cleanup efforts at
the World Trade Center site.
A. LOriginal Victim Compensation Fund
Eleven days after the terrorist attacks on September 11,
2001, Congress passed the Air Transportation Safety and
Stabilization Act to protect air carriers from tort lawsuits
that threatened to cripple air travel in the United States. The
Act capped damages against the airlines at their pre-existing
liability insurance limits and limited jurisdiction for tort
claims to the U.S. District Court for the Southern District of
New York. Moreover, the Act established the 9/11 Victim
Compensation Fund, through which victims of the attacks could
opt to waive all federal and state tort claims and receive
administrative relief through a predetermined formula, under
the discretion of the Fund's Special Master.
The VCF limited recovery to a discrete class of victims,
determined by time and place. To be eligible for recovery under
the Fund, victims had to have been on the flights or at the
World Trade Center or Pentagon sites ``within 12 hours of the
attacks, suffered a physical injury, and been treated by a
medical professional within 24 hours of the injury, within 24
hours of rescue, or within 72 hours of injury or rescue for
those victims who were unable to realize immediately the extent
of their injuries or for whom treatment by a medical
professional was not available on September 11.''\5\ Those who
died in the attacks and rescue workers who were at the site
within 96 hours of the attacks were eligible. The VCF thus had
a clearly defined class of victims whose death or injuries did
not present complex questions of causation.
---------------------------------------------------------------------------
\5\Lloyd Dixon and Rachel Kaganoff Stern, ``Compensation for Losses
from the 9/11 Attacks'' (The Rand Institute for Civil Justice: 2004) at
121.
---------------------------------------------------------------------------
The VCF granted awards for economic loss based on the
victim's annual income prior to the attack. Awards for non-
economic losses for death cases were set at $250,000 per victim
and $100,000 for a spouse and each dependent child; those who
did not believe that these levels provided adequate
compensation for non-economic damages could petition for a
hearing.\6\ The VCF deducted from awards all collateral-source
benefits, 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.''\7\
---------------------------------------------------------------------------
\6\See 67 Fed. Reg. 11,239 (Mar. 13, 2002).
\7\Pub. L. No. 107-42 (2001), 115 Stat. 230 (2001) (codified at 49
U.S.C. Sec. 40101 note).
---------------------------------------------------------------------------
B. LCurrent Situation
Immediately after the terrorist attacks on 9/11, large
private contracting firms were asked by the City of New York to
immediately begin cleanup efforts at Ground Zero. They did so
heroically and in strained circumstances, even though they were
unable to secure the liability insurance they would normally
obtain before starting a project. They were unable to obtain
such insurance because the unprecedented nature of the disaster
site (containing some 20 stories of debris) caused insurance
markets to be incapable of pricing such an insurance product.
Since then, many people who worked and lived in and around
the cleanup site have developed medical problems alleged to
have been caused by the toxic particulates in the air around
the site and by the alleged negligence of the cleanup companies
to ensure that their workers and those in the area were not
exposed to such contaminants. The alleged victims of this
alleged negligence have filed lawsuits (over 10,000 claimants
so far) which now proceed for huge demands of damages. The
contractors claim that the vast majority of claimants are not
contractor employees, but New York City employees such as
firemen. These lawsuits place the solvency of these firms in
jeopardy.
Other major entities affected by the 9/11 attacks,
including the airlines, the owner of the World Trade Center,
and the Port Authority of New York and New Jersey, were
protected from excessive liability exposure following the
attacks by federal legislation. Unfortunately, the cleanup
firms, whose liability issues did not arise until many months
after the attacks, were not. While approximately a billion
dollars have been appropriated to help pay for the medical
expenses of those affects by the contaminants in the areas
around the World Trade Center site, the administrative
compensation program created to help the immediate victims of
9/11 (the VCF) did not cover those exposed to subsequent site
contaminants, and the liability protections passed after 9/11
do not cover the cleanup and recovery firms.
DISCUSSION
Title II of H.R. 847 creates a new September 11th Victim
Compensation Fund to provide compensation to those who were
injured by air contaminants as a result of rescue, recovery,
and cleanup efforts following 9/11 but were ineligible for
compensation under the VCF because their injuries did not
manifest themselves by the fund's December 22, 2003 filing
deadline. However, the structure of the original 9/11 Fund,
which H.R. 847 incorporates, intended for compensating a
limited set of claimants in time and place with relatively
uncontroversial claims in a non-adversarial setting, will not
work for the significantly longer-term fund created by H.R. 847
involving a substantially larger set of claimants with injuries
of more ambiguous causation.
Under the original 9/11 Fund, there was, in general, no
ambiguity with regard to causation. Someone who was on one of
the planes or was killed in the World Trade Center or at the
Pentagon clearly was entitled to compensation from the Fund.
Accordingly, determining who was eligible for compensation was
for the most part a ministerial function, which did not require
adjudication. Moreover, as the number of potential claimants to
the original fund was limited to several thousand, the Fund was
able to be administered effectively and efficiently with a
structure that was relatively thin for a government
bureaucracy. However, ``[a] longer-term and larger compensation
fund could not possibly vest that much discretionary authority
in a single individual, and would need to craft `rigidly
standardized rules' that the current statutory structure of the
Fund would not permit.''\8\ Yet, H.R. 847 makes no changes to
the original Fund's structure to account for the long-term
nature and increased size and complexity of the new Fund.
---------------------------------------------------------------------------
\8\Frank testimony at 3.
---------------------------------------------------------------------------
Thus, while enacting a new 9/11 Fund is in some ways an
attractive proposition, the Fund that will be created by H.R.
847 is highly problematic.
A. LH.R. 847 extends the 9/11 Compensation Fund over 30 years beyond
September 11, 2001.
Under H.R. 847, a claim may be filed at any time during the
period that begins on the date the Special Master updates the
VCF regulations and ends on December 22, 2031. The Special
Master is required to update the regulations within 90 days of
enactment of H.R. 847. Thus, under this bill, the Fund will be
open from at least 2010 to 2031--a period of over 21 years and
over 30 years beyond September 11, 2001.
The sponsors of the legislation want to leave the VCF open
for such a long period of time to address potential latent
claims. However, according to Kenneth Feinberg, Special Master
of the original VCF, ``no latent claims need such an extended
date.'' As the original 9/11 Fund paid over $1 billion to 2,680
eligible physical injury claimants the majority of whom were
suffering from respiratory ailments, former Special Master
Feinberg has firsthand knowledge of the types of claims that
can be expected for the new Fund.
Based on his experience, Mr. Feinberg has suggested that
``Congress could simply reopen the 9/11 Fund to encompass all
such claims during a `window' of 5 years during which time all
September 11 related respiratory physical injuries could be
evaluated and processed.''\9\ Moreover, if latent claims
present a problem at a later date, victims can sue the
contractors and the city assuming the liability cap has not
been reached. Or, if a shorter period (e.g., 5 years) does not
end up being long enough, Congress could once again consider
the issue and reenact the fund. This is an obvious solution as
that is exactly the situation that is occurring here: according
to the bill's sponsors the original fund was not open long
enough so this legislation would reenact it.
---------------------------------------------------------------------------
\9\Paying With Their Lives: The Status of Compensation for 9/11
Health Effects: Joint Hearing Before the Subcomm. on the Constitution
and the Subcomm. on Immigration of the House Comm. on the Judiciary,
110th Cong. (2008) (statement of Kenneth R. Feinberg).
---------------------------------------------------------------------------
What is more, the bill extends the time period for when an
individual's injuries had to have been sustained from the 96
hours after the 9/11 attacks contained in the original fund to
almost a full year after September 11, 2001. That is to say,
claimants will be eligible for the Fund if they were present in
a covered area between September 11, 2001 and August 30, 2002.
Inexplicably, however, the last three months of this nearly
additional year of coverage fall after the cleanup of Ground
Zero ended on May 30, 2002. Why should taxpayers be providing
compensation for injuries that were sustained up to three
months after the cleanup ended?
B. LH.R. 847 gives the Special Master unchecked and unreviewable
discretionary power that is inappropriate for the compensation
fund it creates.
The compensation fund that will be created by H.R. 847,
like the original 9/11 Fund, vests tremendous unchecked and
unreviewable discretionary power in the Fund's special master.
This may have been acceptable for the original 9/11 Fund, with
its limited set of claimants in time and place with relatively
uncontroversial claims. But it is inappropriate for the longer-
term compensation program created by H.R. 847 involving a
substantially larger set of potential claimants with injuries
of more ambiguous causation.
The country was tremendously lucky that Special Master
Feinberg exercised the discretion he was given under the
original fund so ably. The compensation fund that will be
created by H.R. 847, however, is greater in scope and is of a
significantly longer duration than the original fund. Thus it
is highly problematic that H.R. 847 contains very few, if any,
constraints on the new Special Master's discretion to disburse
compensation to the tens of thousands of potential claimants.
This is especially true with regard to medical causation and
non-economic damages.
In terms of medical causation, if the Fund is to be anymore
than a giveaway of taxpayer money to anyone who is suffering a
respiratory problem and was in the appropriate geographic area,
the cooperative non-adversarial structure of the original 9/11
Fund will necessarily have to change. This cooperative non-
adversarial structure was advantageous in the original fund as
there was no dispute as to causation and there were a
relatively limited number of claimants. This structure, which
H.R. 847 leaves unaltered, however, is not appropriate for the
type or scope of claims that will be covered by the new fund or
the larger number of claims that can be expected.
With regard to non-economic damages, the discretion given
to the Special Master under H.R. 847 is also problematic. Non-
economic damages are highly subjective. The original 9/11 Fund
had a regulatory limitation on presumed non-economic damages,
but the Special Master could exceed that limitation in
exceptional cases and ``[a] different Special Master could undo
those regulatory limitations, and open the Treasury to
arbitrary non-economic damages awards to thousands of
claimants.''\10\
---------------------------------------------------------------------------
\10\Frank testimony at 4.
---------------------------------------------------------------------------
In other words, H.R. 847 simply puts too much discretion in
the hands of what will likely be several Special Masters over
the duration of the 22-year fund. Although Mr. Feinberg did an
exceptional job with the original fund, Congress should not
leave to chance that there will be as able a set of Special
Masters over the course of the fund created by H.R. 847. Nor
should Congress treat this larger, more complex and longer-
lasting fund as though it is simply a carbon copy of the
original Fund.
C. LFund will be susceptible to fraud, waste, error, and abuse
The original 9/11 Fund was designed for a select group of
claimants who, for the most part, were unquestionably the
intended recipients and eligible for benefits. In general, this
narrow focus allowed for a non-adversarial process, involving a
limited number of claimants, without dispute over causation.
Indeed, as Special Master Feinberg has noted, ``Claimants did
not need to present detailed computations or analyses. Instead,
they only needed to supply the fund easily obtained data.''\11\
---------------------------------------------------------------------------
\11\Kenneth R. Feinberg, 1 Final Report of the Special Master of
the September 11th Victim Compensation Fund 7 (2004).
---------------------------------------------------------------------------
However, the structure of the original fund, ``left
unchanged in H.R. 847, is inappropriate for either the broader
scope of the new Fund or the larger volume of claims the Fund
can anticipate.''\12\ In order to avoid waste, fraud, and abuse
of taxpayer dollars, Ted Frank of the American Enterprise
Institute, a witness at the Committee's hearing on this
legislation, explained in his written testimony that:
---------------------------------------------------------------------------
\12\Frank testimony at 5.
If the Fund is to be aimed at a specific set of victims
of terrorist attack, rather than simply a giveaway of
taxpayer money to a geographic area and to trial
lawyers, Section 405 will need to be amended to both
require the Fund to establish neutral medical criteria
for demonstrating causation, and to have a more
realistic timeframe for adjudication of potentially
controversial claims for compensation. Congress should
require the Fund to establish appropriate burdens of
proof and permit for independent medical review to
ensure that, if taxpayers are to be responsible for
compensation for injuries caused in the aftermath of
the September 11 attacks, they are responsible for that
amount and no more.\13\
---------------------------------------------------------------------------
\13\Frank testimony at 5-6.
For an example of the potential for fraud, waste, and
abuse, one need look no further than the namesake of H.R. 847,
James Zadroga. Detective Zadroga died from pulmonary disease
and respiratory failure allegedly caused by exposure to dust at
Ground Zero. The chief New York City medical examiner, however,
concluded that, ``[i]t is our unequivocal opinion, with
certainty beyond doubt, that the foreign material in [Detective
Zadroga's] lungs did not get there as the result of inhaling
dust at the World Trade Center or elsewhere.''\14\ Although
Zadroga's family disputes the medical examiner's finding, the
simple fact that this controversy exists demonstrates that the
non-adversarial structure of the original fund cannot be
retained without opening the new Fund up to fraud, waste, and
abuse.
---------------------------------------------------------------------------
\14\Bill Hutchinson, Coroner Says Hero James Zadroga Didn't Die
From WTC Dust, N.Y. Daily News (Oct. 19, 2007).
---------------------------------------------------------------------------
As Ted Frank further explained in his written testimony,
The danger here is not simply the occasional false
positive of unmerited compensation, but the creation of
a compensation structure that will be subject to
pervasive fraud. History has shown in the asbestos and
silicosis mass tort litigations that claims of lung
ailments are especially susceptible to fraud. . . .
The only hurdle the bill creates is Section
405(c)(3)(A)(ii)--proof that one contemporaneously
sought medical treatment. This may succeed in winnowing
out especially meritless claims that have already been
brought, but the bar is quite low for future claimants.
Even legitimate medical facilities have a danger of
suffering from confirmation bias and exaggerating the
scope of pulmonary injuries, given the millions of
dollars of federal money at stake. Many of the most
sensational reports, including congressional testimony,
have come from the Irving J. Selikoff Center for
Occupational and Environmental Medicine. . . . But
critics have complained that ``doctors at the clinic,
which has strong historical ties to labor unions, have
allowed their advocacy for workers to trump their
science by making statements that go beyond what their
studies have confirmed''; and they have presented
findings in ``scientifically questionable ways.''\15\
---------------------------------------------------------------------------
\15\Frank testimony at 7 (citations omitted).
Moreover, as Mr. Frank explains, a fund like the one
created in H.R. 847 will invariably suffer from the Field of
Dreams problem: ``if you build it they will come.''\16\ In
other words, ``[i]f Congress creates a compensation system
where geographic proximity and a diagnosis are the only
prerequisites for a large government check and an attorney's
contingent fee, attorneys will have every incentive to
manufacture such diagnoses, and have done so in the past, often
with the cooperation of unions.''\17\ In the case of a new 9/11
Fund, this concern is more than hypothetical. ``Thousands of
lawsuits in the September 11 litigation in [federal] court
alleging pulmonary injury have been filed by Napoli, Kaiser &
Bern LLP, which was responsible for massive fraud in the fen-
phen litigation.''\18\
---------------------------------------------------------------------------
\16\Id. at 8 (citing Richard A. Nagareda, Mass Torts in a World of
Settlement 143 (2007).
\17\Id. at 8.
\18\Id.
---------------------------------------------------------------------------
What will stop this same type of fraud from seeping into
the new 9/11 Fund that is to be created by H.R. 847? As Mr.
Frank points out, it likely will not be the structure of the
Fund as it currently stands:
Given the likely volume of claims and the complexity of
the underlying causation and timeliness issues, it will
be extraordinarily unlikely that the next Special
Master will be able to adequately review claims for
merit. Without firm medical criteria and the
opportunity of scrutiny of claims on the front end and
the promise of criminal penalties for fraud on the back
end, the reopening of the VCF will be subject to
substantial fraud and abuse.\19\
---------------------------------------------------------------------------
\19\Id. at 9.
---------------------------------------------------------------------------
D. LThe manager's amendment's $8.4 billion cap is an invitation to
spend $8.4 billion
Through the manager's amendment that was adopted in
Committee, expenditures from the fund will be capped at $8.4
billion. There are several problems with this cap. First, at
base, a cap of $8.4 billion is nothing more than an invitation
for the Fund's Special Master to spend $8.4 billion. Second, it
is unclear where this $8.4 billion figure came from. The
Congressional Budget Office (CBO) scored the first 10 years of
the new Fund at $6.4 billion, but extrapolating CBO's 10-year
numbers out for a 22-year long fund comes to no more than $7.6
billion.\20\ Additionally, Special Master Feinberg, who
probably has as good a grasp on the scope of these claims as
anyone, has indicated that all existing claims could be settled
for $1.5 billion.\21\ If $1.5 billion is anywhere close to
being correct, why then is the cap set at $8.4 billion? It
should not be. Third, an $8.4 billion cap in H.R. 847 does
nothing to prevent a future Congress from increasing the cap.
For instance, if the Special Master pays out $8.4 billion in
the first 10 years of the Fund, is a future Congress not going
to be at least tempted to authorize an increase in the cap? Of
course it will. If a future Congress can increase the cap, why
then not limit the initial cap to the $1.5 billion figure
suggested for Mr. Feinberg? The bill's sponsors do not explain
why they have not chosen that route.
---------------------------------------------------------------------------
\20\The Congressional Budget Office only calculated the cost of an
uncapped fund for the first 10 years the Fund would be opened. However,
CBO determined that claims for compensation from the Fund would
decrease over time. According to CBO's cost estimate, in year 10 annual
payouts from the fund would only be $100 million. Thus, even assuming
$100 million in payouts per year for the remaining 12 years the Fund
will be open, the overall cost only gets to $7.6 billion. It is likely
though that this number would be lower than $7.6 billion as it does not
account for a further annual drop in payouts over the remaining 12
years.
\21\See, e.g., Feinberg testimony at 8-10.
---------------------------------------------------------------------------
In other words, the $8.4 billion cap has little real
effect. Had the proponents of H.R. 847 really wanted to put
safeguards in the legislation to protect taxpayer money, they
would have eliminated or capped the amount of highly subjective
non-economic damages that could be awarded; limited the
duration of the fund; and put in place some concrete rules on
medical causation. Simply put, the $8.4 billion cap will do
little, if anything, to protect taxpayers. While the victims
and the parties that are being sued in federal court are worthy
of protection, so too are taxpayers.
E. LA new Fund may reduce Congress' ability to provide funding for
future disasters or terrorist attacks.
As the nonpartisan Rand Institute for Civil Justice pointed
out in 2004, in its report on the original VCF,
``precommitments by government programs . . . reduce the
ability of government, and society more generally, to allocate
resources to meet the most pressing needs after an
attack.''\22\ And the Government Accountability Office, in
2005, also cautioned, in a study of four federal compensation
programs, that ``the federal role in all four programs has
expanded significantly over time . . . As might be expected, as
the federal role for those four programs has grown, so have
their costs . . . [B]ecause these programs may expand
significantly beyond the initial cost estimates, policymakers
must carefully consider the cost and precedent-setting
implications of establishing any new federal compensation
programs, particularly in light of the current federal
deficit.''\23\
---------------------------------------------------------------------------
\22\Lloyd Dixon and Rachel Kaganoff Stern, ``Compensation for
Losses from the 9/11 Attacks'' (The Rand Institute for Civil Justice:
2004) at 143.
\23\Government Accountability Office, ``Federal Compensation
Programs: Perspectives on Four Programs (November 2005) at 4-5
(analyzing the Black Lung Program, the Vaccine Injury Compensation
Program, the Radiation Exposure Compensation Program, and the Energy
Employees Occupational Illness Compensation Program).
---------------------------------------------------------------------------
F. LH.R. 847 allows attorneys to collect taxpayer funded fees for work
not directly related to recovery from the Victim Compensation
Fund.
Because the 9/11 Fund is a no-fault, administrative scheme
that does not involve the kind of risks and expense that would
justify significant contingency fees, attorneys' fees should be
limited. The entire purpose of the compensation fund is to
provide victims with compensation without requiring them to
prove complex legal concepts such as negligence, products
liability, or other tort theories. Indeed, when Congress was
considering the original VCF, the Association of Trial Lawyers
of America sent a letter to Congress stating that ``ATLA
believes that 100% of the compensation from the fund should go
directly to these families.''\24\
---------------------------------------------------------------------------
\24\Letter from Leo V. Boyle, President, Association of Trial
Lawyers of America, to Congressional Leaders reprinted in 147 Cong.
Rec. H5914 (daily ed. Sept. 21, 2001) (statement of Rep. Delahunt); 147
Cong. Rec. S9599 (daily ed. Sept. 21, 2001) (statement of Mr. Reid).
---------------------------------------------------------------------------
Through the manager's amendment, the bill will include a
cap on attorneys' fees; however, the cap is poorly crafted if
it is truly intended to maximize victims' recoveries by
limiting attorneys to reasonable fees. What is more, the fee
cap has an exception that will swallow the rule by allowing
attorneys to receive fees for work that is not directly related
to a victim's recovery under the VCF. A true fee cap would have
given the Special Master the discretion to award less than 10
percent attorneys' fees depending on the facts of the claim and
the amount of work the attorney truly put in on that particular
claim. Indeed, under the first 9/11 Fund, the Special Master
had a non-binding guideline of 5 percent attorneys' fees and
many attorneys worked pro bono. It is truly ironic that not
giving the Special Master the discretion to award less than 10
percent attorneys' fees is the one area that H.R. 847 puts
limits on the Special Master's discretion. Surely, taxpayers
who are providing the money for the new Fund would appreciate
more meaningful limits on the Special Master's nearly unbounded
discretion.
Second, the attorneys' fee cap has an exception that
provides that attorneys who have worked on civil litigation for
a claimant prior to January 1, 2009, arising out of the cleanup
efforts at the Ground Zero, will not be bound by the manager's
amendment's 10 percent attorneys' fee cap. Essentially, this
means that some attorneys will be compensated for work that is
not directly related to filing a claim under the new 9/11 Fund.
In other words, attorneys will be, for instance, compensated
with taxpayer dollars for having filed motions in federal
district court that are wholly unrelated to the no-fault,
administrative compensation being provided for under the Fund.
Why should taxpayers be paying attorneys for work that is not
directly related to a claim under the Fund? The vast majority
of the money from the Fund should go to the victims, not to
attorneys that they may have hired. When these attorneys took
on the civil litigation the manager's amendment intends to
compensate them for, they did so at the risk (as is the case
with all contingent fee litigation) that they would receive
nothing for their work. Why now should Congress offset that
risk?
Simply put, the attorneys' fee cap in the manager's
amendment to H.R. 847 is really not much of a cap at all.
Attorneys representing World Trade Center cleanup-related
victims should remember the sentiments of the ATLA right after
the attacks and not seek fees, or anything more than minimal
fees, for their representations of victims before the 9/11
Fund. And Congress should not step in with this so-called
attorneys' fees cap and invite attorneys to take money from the
victims for work they did in civil litigation.
G. LOther disaster victims do not receive this type of federal
compensation.
There is also the question of why Congress should reopen
the 9/11 Fund, providing billions in additional federal
compensation to the physical injury victims of the 9/11
attacks, while no such fund exists for the victims of the
Oklahoma City bombing, the victims of the U.S. embassy
bombings, the victims of the first World Trade Center Attack in
1993, or the victims of the unprecedented disaster associated
with Hurricane Katrina. If this entitlement is approved, how
does Congress say ``no'' to the victims of future tragedies,
whether as a result of natural disasters or terrorist attacks?
Congress must stop and think of the precedent this bill sets
for future disasters. As former Special Master Feinberg has
written,
Why should Congress, which has already enacted
legislation authorizing over $7 billion in public
compensation to the families of those who died on
September 11, or who were physically injured as a
result of the attacks, now authorize additional
millions or even billions in compensation for the
remaining September 11 victims, while failing to do
anything similar to the other victims of life's
misfortunes? It is a fundamental question posed to our
elected officials in a free democratic society. Why
some victims but not others? On what basis should such
distinctions be made? Are some victims more ``worthy''
than others?\25\
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\25\Feinberg testimony at 7.
Moreover, it is not just that the VCF compensates the
victims of one set of terrorist attacks but not victims of
other terrorist attacks on American and foreign soil. It is
also that the VCF ``compensates the 9/11 victims while most
other innocent victims of crime, intentional wrongdoing, or
negligence must suffer without remedy unless they are `lucky'
enough to have been injured by someone who can be held liable
under the tort system's peculiar, often arbitrary rules and who
is also sufficiently insured or secure financially to pay the
judgment.''\26\
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\26\Peter Schuck, Special Dispensation, Am. Lawyer, June 2004.
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H. LH.R. 847 contains a partially self-defeating provision that allows
for the reinstatement of lawsuits if a claimant is ineligible
under the VCF.
Section 202, paragraph 3 of H.R. 847 provides that if a
claimant is determined to be ineligible for the compensation
fund, he may reinstitute his lawsuit. One of the arguments,
however, for reenacting the Fund is to bring a close to
litigation against the City and its contractors. If ineligible
claimants can reinstitute their lawsuits, this legislation is
providing an avenue for lawsuits to move forward even after the
Special Master has determined that they do not have an eligible
claim. Moreover, the bill's limitation of liability provisions
may not serve to discourage litigation. Those that seek
compensation in the fund but are denied compensation not only
will be able to reinstitute their tort cases in federal court;
the liability caps actually may serve to create an
approximately $2 billion incentive to sue in federal court
rather than go through the fund. In other words, creation of
the Fund may not have the anticipated impact on ending the
litigation.
REPUBLICAN AMENDMENTS
Republican Members offered two amendments to Title II of
H.R. 847 at the Committee markup. Neither of the Republican
amendments was adopted:
LSmith Amendment. Ranking Member Smith offered
an amendment, based on the recommendation of former
Special Master Feinberg, to limit reopening of the fund
to 5 years on the Fund's original terms. As Special
Master Feinberg wrote in his written testimony at a
Judiciary Committee hearing on reenacting the 9/11
Fund, ``any attempt to reenact and extend the 9/11 Fund
should be initiated with the understanding that there
would be no changes in the rules and regulations
governing the original Fund, that the new law would
simply be a `one line' extension of reaffirmation of
the law which established the original 9/11 Fund.''\27\
According to Special Master Feinberg, ``Congress could
simply reopen the 9/11 Fund to encompass all such
claims during a `window' of 5 years during which time
all September 11 related respiratory injuries could be
evaluated and processed.''\28\ Ranking Member Smith's
amendment would have accomplished Special Master
Feinberg's recommendation of a ``one-line,'' 5-year
extension of the original 9/11 Fund. This amendment
would have, in a very simple manner, addressed many of
the concerns expressed above with regards to the new
Fund that will be created by H.R. 847. Unfortunately,
Ranking Member Smith's amendment was not adopted.
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\27\Feinberg testimony at 6.
\28\Feinberg testimony at 5.
LKing Amendment. Mr. King offered an amendment
to remove the exception in the attorneys' fee cap for
attorneys who had filed a lawsuit on behalf of a victim
in federal court prior to January 1, 2009. This
exception swallows the rule. Had Mr. King's amendment
been adopted it would have ensured that more of the
compensation under the Fund would have gone to the
victims and not to any attorneys they may have hired.
Given that the VCF is a no-fault, administrative
scheme, there is no justification for high attorneys'
fees. Nor is there any reason to provide attorneys with
compensation under the VCF for work they performed for
litigation in federal court--the VCF is wholly a
separate system from that litigation. When attorneys
took on that representation in that litigation they did
so at the risk that they would receive no compensation
at all if the plaintiff lost--such is the nature of a
contingency fee. Mr. King's amendment was not adopted.
CONCLUSION
Consideration of creating the new Victim Compensation Fund
contained in Title II of H.R. 847 raises two questions. First,
why should Congress reenact and expand the 9/11 Fund, providing
millions in additional public compensation to the physical
injury victims of the September 11 attacks, while no such Fund
exists at all for the victims of the Oklahoma City bombing, the
victims of the African Embassy bombing, the victims of the
first World Trade Center attack in 1993 or, for that matter,
the victims of the unprecedented disaster associated with
Hurricane Katrina? Underlying this question is the issue of
whether the federal government, i.e., the taxpayers of the
United States, are to become in perpetuity the guarantors of
last resort for all the tragedies that beset people over their
lives. Members will have to make their own philosophical
decision as to this first question.
The second question is whether the 9/11 Fund that will be
created by H.R. 847 is written in such a manner that it will
safeguard valuable taxpayer dollars while appropriately
compensating only the actual victims of the aftermath of the 9/
11 attacks. The answer to the second question is much more
clear--the Fund that will be created by H.R. 847 is open for
much longer than is necessary (at least 21 years); gives far
too much discretion to the Special Master considering the long-
term nature of the Fund, which will have a larger set of
claimants with claims of much more ambiguous causation than
under the original Fund; and the size and unstructured nature
of the Fund will make it highly susceptible to waste, fraud,
and abuse. Simply put, the structure of the original 9/11 Fund
will not work for the Fund that will be created by H.R. 847.
There may be a deserving class of claimants who are
suffering respiratory and other physical ailments as a result
of their work at Ground Zero. And it may be that the original
9/11 Fund should be reopened for a limited period of time in
order to compensate those individuals. But the Fund created in
H.R. 847 is not the original 9/11 Fund, nor is it being re-
opened for a brief window. We are unable to support enactment
of this legislation.
Lamar Smith.
F. James Sensenbrenner, Jr.
Bob Goodlatte.
Gregg Harper.