[House Report 116-152]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-152
======================================================================
NEVER FORGET THE HEROES: PERMANENT AUTHORIZATION OF THE SEPTEMBER 11TH
VICTIM COMPENSATION FUND ACT
_______
July 12, 2019.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 1327]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1327) to extend authorization for the September 11th
Victim Compensation Fund of 2001 through fiscal year 2090, and
for other purposes, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 15
Committee Consideration.......................................... 16
Committee Votes.................................................. 16
Committee Oversight Findings..................................... 16
New Budget Authority and Tax Expenditures........................ 16
Congressional Budget Office Cost Estimate........................ 16
Duplication of Federal Programs.................................. 28
Performance Goals and Objectives................................. 28
Advisory on Earmarks............................................. 28
Section-by-Section Analysis...................................... 29
Changes in Existing Law Made by the Bill, as Reported............ 31
Purpose and Summary
H.R. 1327, the ``Never Forget the Heroes: Permanent
Authorization of the September 11th Victim Compensation Fund
Act,'' would extend the authorization for the September 11th
Victim Compensation Fund (``VCF'') until 2090. The VCF provides
compensation for those individuals who were physically injured
as a result of the September 11, 2001 terrorist attacks on the
United States, as well as for those physically injured as a
result of their involvement in debris removal efforts
thereafter and for the families of those killed in the attacks.
H.R. 1327 also directs that funds not otherwise appropriated be
placed into the VCF in ``such sums as may be necessary'' to
fund its payment of claims and its administrative expenses.
With respect to any awards to claimants that were reduced
because of the current funding deficiency faced by the VCF, the
bill directs the VCF Special Master to pay the claimant the
difference between the amount to which the claimant is entitled
to and the amount that the claimant was actually paid when
there is sufficient funding to do so. It also provides the VCF
Special Master with the discretion to grant awards for
noneconomic losses in amounts beyond the statutory caps
contained in current law when special circumstances warrant.
Finally, the bill would ensure that, with respect to the
calculation of economic losses, the limit of $200,000 annual
gross income is adjusted based on the Consumer Price Index for
All Urban Consumers at least once every five years.
House Judiciary Committee Chairman Jerrold Nadler (D-NY),
together with Representatives Carolyn Maloney (D-NY), and Peter
King (R-NY), introduced H.R. 1327 on February 25, 2019. As of
this writing, this bipartisan measure has 332 cosponsors,
including all Democratic Members of the Committee as well as
Ranking Member Doug Collins (R-GA) and Committee Members Ben
Cline (R-VA), Mike Johnson (R-LA), Debbie Lesko (R-AZ), and Guy
Reschenthaler (R-PA). H.R. 1327 is also supported by 21 law
enforcement organizations,\1\ more than 200 mayors and local
government officials,\2\ the New York Police Department
Sergeants Benevolent Association,\3\ and the International
Union of Operating Engineers.\4\
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\1\Letter from 21 Law Enforcement Organizations to Rep. Steve Cohen
(D-TN), Chairman, Subcomm. on the Constitution, Civil Rights, & Civil
Liberties of the H. Comm. on the Judiciary, et al. (June 10, 2019).
\2\Letter from Local Government Officials to Rep. Nancy Pelosi (D-
CA), Speaker of the House, et al. (June 10, 2019).
\3\Letter from the New York Police Department Sergeants Benevolent
Association to Rep. Carolyn Maloney (D-NY) et al., Feb. 28, 2019.
\4\Letter from the Int'l Union of Op. Engineers to Rep. Carolyn
Maloney (D-NY) (Mar. 5, 2019).
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Background and Need for the Legislation
BACKGROUND
I. September 11, 2001 attacks and environmental toxins
On September 11, 2001, terrorists hijacked four commercial
airliners and flew two of them into the World Trade Center
(``WTC'') towers in New York City and one into the Pentagon in
Arlington, Virginia while crashing a fourth aircraft in
Shanksville, Pennsylvania (``9/11 attacks''). Almost 3,000
people were killed in the collapse of the WTC alone, including
hundreds of firefighters, police officers, and other first
responders. Additionally, 125 people were killed at the
Pentagon and 246 people (excluding the hijackers) aboard the
four hijacked aircraft. According to Newsweek, more American
lives were lost on that day as a result of the 9/11 attacks
than on any other day in U.S. history with the exception of the
Civil War battle of Antietam.\5\
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\5\Leah McGrath Goodman, 9/11's Second Wave: Cancer and Other
Diseases Linked to the 2001 Attacks Are Surging, Newsweek, Sept. 7,
2016, available at https://www.newsweek.com/2016/09/16/9-11-death-toll-
rising-496214.html.
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Beyond the devastating loss of life, the collapse of the
WTC towers and the adjacent buildings released numerous
hazardous substances into the environment. These hazardous
substances included hundreds of tons of asbestos, nearly half a
million pounds of lead, and untold amounts of glass fibers,
steel, and concrete. The substances formed into a massive cloud
of toxic dust and smoke which blanketed parts of New York City
and New Jersey and was blown or dispersed into many of the
surrounding office buildings, schools, and residences. In
addition to the debris, fires burned for many months, partly
due to the 150,000 gallons of oil stored in the buildings,
which emitted particulate matter, various heavy metals, and
other potentially deadly substances. All told, the building
collapses dumped about one million tons of dust on the area
around Lower Manhattan, creating a 16-acre disaster zone. It is
estimated that approximately 400,000 people, including ``rescue
and recovery workers, residents, students and school staff,
building occupants, and passersby,'' were exposed to ``the
immense cloud of dust and debris, the indoor dust, the fumes
from persistent fires, and the mental trauma'' of the WTC's
collapse.\6\
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\6\Joe Murphy et al., Measuring and Maximizing Coverage in the
World Trade Center Health Registry, Statistics in Medicine (Nov. 16,
2006), available at http://www.nyc.gov/html/doh/wtc/downloads/pdf/wtc/
wtc-article-20070207.pdf.
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The Natural Resources Defense Council, in its report on the
environmental impact of the WTC collapse, stated that the
simultaneous release of thousands of toxic components
constituted a ``pollution event'' and called it ``an
unprecedented environmental assault for Lower Manhattan.''\7\
According to the Federal Emergency Management Agency, ``as many
as seven contaminants of potential concern may have spread into
buildings as a result of the collapse of the WTC
buildings.''\8\ Evidence accumulated since the collapse of the
WTC indicated that the air was hazardous, notwithstanding
safety assurances from the Environmental Protection Agency
(``EPA''), and that exposure to these hazards have caused
serious physical injury and death.
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\7\Megan Nordgren, Eric Goldstein, & Mark Izeman, The Environmental
Impacts of the World Trade Center Attacks, Natural Resources Defense
Council, at 3 (2002).
\8\Office of the Inspector General, Federal Emergency Management
Agency, FEMA's Delivery of Individual Assistance Program, New York,
September 2001 (hereinafter ``FEMA Report''), at 25 (Dec. 18, 2002).
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II. Federal Government's failure to acknowledge human exposure and
health consequences
The day after the collapse of the WTC towers, a top federal
scientist issued a warning against the quick reoccupation of
Lower Manhattan because of possible threats to health from
asbestos and other toxins. In response to a White House request
for a health advisory, Dr. Ed Kilbourne, an associate
administrator at the U.S. Agency for Toxic Substances and
Disease Registry, wrote: ``We are concerned about even being
asked to write a document for the public about reentry at this
point. Does this mean that unrestricted access to the WTC
vicinity is imminent?''\9\
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\9\Dr. Kilbourne warned that the bulk dust samples analyzed by the
EPA contained four times the established standard of asbestos, which he
labeled a ``substantial concentration.'' He also strongly cautioned
that it was ``important to characterize how far significant levels of
asbestos extend before allowing unrestricted access by unprotected
individuals.'' New York Daily News (October 28, 2003).
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Even before the WTC's collapse, the EPA knew that the
towers contained 400 to 1,000 tons of asbestos. The EPA became
aware of this danger following the 1993 terrorist attack on the
WTC.\10\ Yet after the 9/11 attacks, the EPA repeatedly assured
New Yorkers that the air was ``safe to breathe.''\11\ On
September 18, 2001, for example, EPA Administrator Christine
Todd Whitman announced to the public that results of EPA tests
indicated ``little risk to rescue workers or the public.''\12\
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\10\Office of Inspector General, Federal Emergency Management
Agency, FEMA's Development of Individual Assistance Programs: New
York--September 11, 2001; Gonzales, Juan, Fallout: The Environmental
Consequences of the World Trade Center Collapse 91 (2003).
\11\Jeremy P. Jacobs, EPA Regulators Say They've Learned From 9/11
Blunders, But Critics Remain Unconvinced, N.Y. Times, Sept. 9, 2011,
available at https://archive.nytimes.com/www.nytimes.com/gwire/2011/09/
09/09greenwire-epa-regulators-say-theyve-learned-from-911-blu-
24494.html?pagewanted=all.
\12\Ex-EPA Chief Grilled Over Her 9/11 Role, Albion Monitor, Jun.
26, 2007, available at http://www.albionmonitor.com/0706a/
whitmantestimony.html
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Ms. Whitman has since admitted that her reassurances made
in September 2001 about air quality in and around the WTC site
were wrong and she has apologized for making them.\13\ Lila
Nordstrom, a student at Stuyvesant High School, which is
located in the area contaminated by the 9/11 attacks in New
York City, testified at a hearing before the Subcommittee on
the Constitution, Civil Rights, and Civil Liberties
(``Subcommittee'') on the need to reauthorize the September
11th Victim Compensation Fund. In explaining her subsequent
illnesses incurred from being exposed to such contamination,
she explained:
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\13\Former EPA Head Admits She Was Wrong to Tell New Yorkers Post-
9/11 Air Was Safe, The Guardian, Sept. 10, 2016, available at https://
www.theguardian.com/us-news/2016/sep/10/epa-head-wrong-911-air-safe-
new-york-christine-todd-whitman.
I am sitting before you as someone who was present on
9/11 but I was not caught in the dust cloud. There is
no reason that my respiratory health or my
gastrointestinal health . . . should have been impacted
by the events of
9/11. I only have these conditions because I was sent
back [into the school building and surrounding area.]
And I was only sent back because the Federal Government
assured New Yorkers that the air downtown was safe to
breathe.\14\
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\14\The Need to Reauthorize the September 11th Victim Compensation
Fund: Hearing Before the Subcomm. on the Constitution, Civil Rights,
and Civil Liberties of the H. Comm. on the Judiciary, 116th Cong.,
Unofficial Tr. 83-84 (2019) [hereinafter ``VCF Hearing''].
Indeed, Ms. Whitman's statements from September 2001 have
since been widely discredited and were suspect even at the
time. Less than a month after the fall of the WTC towers, the
Ground Zero Elected Officials Task Force released sample
results from dust collected in two downtown apartments having
asbestos levels nearly 460 times the EPA's allowable limit.\15\
Historically, the EPA has stated that any level of asbestos is
a public heath danger and that asbestos-containing material
must be handled and disposed of following specific procedures
under the law.\16\ Moreover, toxic hazards present in the WTC
area, including asbestos and toxins about which the EPA had not
even inquired (including acid gases, volatile organic compounds
and heavy metals) were confirmed by other public and private
agencies.\17\
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\15\Eric J. Chatfield (Ph.D) and John R. Kominshy (M.Sc., CIH, CSP,
CHMM), Summary Report: Characterization of Particulate Found in
Apartments After Destruction of the World Trade Center (October 12,
2001).
\16\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).
\17\Sierra Club, Pollution and Deception at Ground Zero, Sierra
Club Report, Appendix E (August 2004).
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On September 17, 2001, the United States Geological Survey
presented to the WTC emergency response teams its chemical
leach tests of WTC dust, which was found to be highly
caustic.\18\ A week later, New York Daily News columnist Juan
Gonzalez reported that dust samples taken from within two
blocks of Ground Zero by the New York Environmental Law &
Justice Project showed asbestos levels were nearly five times
higher than the 1% definitional threshold of ``asbestos
containing material,'' as well as significant amounts of
fiberglass.\19\ Newsweek also reported that more asbestos was
released into lower Manhattan than EPA tests had originally
indicated, ``and in potentially more dangerous forms.''\20\ On
February 21, 2002, Dr. Thomas Cahill of the University of
California at Davis testified in New York City about his air
sampling results, which showed that there were very high levels
of ultra-fine toxic particulates in the air from Ground
Zero.\21\
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\18\Andrew Schneider, ``Public Was Never Told That Dust from Ruins
is Dangerously Caustic,'' St. Louis Post Dispatch (February 10, 2002).
\19\Juan Gonzalez, ``Doc's WTC Note: Don't Hurry Back,'' N.Y. Daily
News (Oct. 28, 2003).
\20\Id.
\21\EPA National Ombudsman First Investigative Hearing on World
Trade Center Hazardous Waste Contamination, hosted by U.S.
Representative Jerrold Nadler (Feb. 21, 2002), available at: http://
www.nyenvirolaw.org/PDF/Transcript-EPA-OmbudsmanHearing-2-23-2002.pdf.
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III. Escalating health impact
As a result of incomplete medical monitoring both before
and after the 9/11 attacks, experts may never know the full
extent of the damage caused by the attacks, nor predict with
certainty all of the future adverse health effects from
exposure to toxins from the WTC and other 9/11-related sites.
There is, however, growing certainty that such exposure has
caused adverse health effects in thousands of responders,
workers, and others at or near Ground Zero in the immediate
aftermath of 9/11.
Ongoing medical monitoring and related studies of groups of
people exposed to WTC toxins have yielded very troubling health
statistics on illnesses related to such exposure. Within a few
years of 9/11, these studies connected exposure to myriad
severe symptoms, including respiratory diseases presenting as
asthma or asthma-like conditions, pulmonary fibrosis, and
significant loss of lung function (now commonly referred to
jointly as ``World Trade Center cough''\22\); upper respiratory
conditions, including chronic sinusitis; and gastrointestinal
problems. These medical problems have been documented in peer-
reviewed scientific publications of research studies done by
several independent research groups.
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\22\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).
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Based on the evidence, it is clear that these disorders are
occurring at a much higher rate than would be expected in such
populations and that the disorders are due to the toxic
exposures related to 9/11. Dr. Jacqueline Moline, Director of
the Northwell Queens World Trade Center Health Program,
testified at the Subcommittee's June 11, 2019 hearing that
``over 50 percent of firefighters who worked the World Trade
Center site had developed a persistent respiratory condition.
Rates of asthma remain elevated along with a variety of other
diseases.''\23\ As early as 2006, a Mount Sinai Medical Center
study of responders and recovery workers reported that lower
respiratory disease was found in 46% of those evaluated; upper
respiratory health problems in 64%; and mental health problems
in 32%.\24\ The study found that nearly 70% of the 19,000 first
responders tracked in the study suffered from new or worsened
respiratory symptoms.\25\ Similar results have been found in
other studies of groups exposed to WTC toxins.\26\
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\23\VCF Hearing, Unofficial Tr. at 46.
\24\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).
\25\Id.
\26\Ninety-nine percent of exposed firefighters, who were screened
and monitored through the FDNY-WTC Medical Screening and Treatment
Program, reported at least one new onset respiratory symptom while
working at the WTC site. Progress Since 9/11: Protecting Public Health
and Safety Against Terrorist Attacks, Hearing Before the Subcommittee
on National Security, Emerging Threats and International Relations of
the House Committee on Government Reform, (testimony of J. Kelly Kerry,
MD, Chief Medical Officer, Bureau of Health Services, FDNY and Co-
Director, FDNY-WTC Medical Program New York City) (Feb. 28, 2006).
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While many of the above conditions 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. Many of these patients have become
incapacitated because of that pulmonary disease. Lung function
rapidly deteriorates, and the individuals become increasingly
incapable of performing job duties or even everyday activities
that healthy people take for granted. With the increasing loss
of lung function, such individuals become incapacitated and
unable to work. As Dr. Moline testified, ``Studies have shown
the impact of 9/11 exposures, not only on health, but also on
employment, as individuals with WTC related health conditions
were more likely to retire before age 60.''\27\
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\27\VCF Hearing (written statement of Dr. Jacqueline Moline, M.D.,
M.Sc., Director, Northwell Health Queens World Trade Center Program, at
4) [hereinafter ``Moline Statement''].
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A decade after the 9/11 attacks, responders and survivors
began suffering from a second, more severe wave of adverse
health effects among populations exposed to 9/11 toxins. For
instance, there were reported increases in cases of serious
lung diseases, including sarcoidosis and interstitial lung
disease, among exposed populations a decade after 9/11.\28\
Michael O'Connell, a 9/11 first responder who engaged in
recovery work at the WTC site and is now a retired Lieutenant
with the Fire Department of New York, testified that more than
six years after 9/11 he ``was one of the youngest and first
firefighters diagnosed with sarcoidosis,'' which was ``a rare
autoimmune disease,'' and, as a result, he was unable to
continue working as a full-duty firefighter.\29\ Sarcoidosis is
a multisystem disorder characterized by small inflammatory
nodules that can affect any organ but are often found in the
lungs and can severely limit air flow into the lungs.
Interstitial lung disease is a condition in which the lung
gradually loses its elasticity, preventing the patient from
getting adequate oxygen into the bloodstream and normally
requiring lung transplantation.
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\28\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
Department Rescue Workers, Chest Journal (Jan. 26, 2007) (noting that
the incidence of sarcoidosis was significantly (nearly 8 times)
increased when compared to the years before 9/11), abstract available
at: http://www.chestjournal.org/content/131/5/1414.abstract.
\29\VCF Hearing, Unofficial Tr. at 69.
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Since 2011, medical experts have also seen cancer rates
dramatically increase among those exposed to 9/11 contaminants,
and these cancers constitute a third wave of adverse health
effects among populations exposed to 9/11 toxins.\30\ As Dr.
Moline testified before the Subcommittee:
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\30\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.
Here we are nearly 20 years later . . . As someone
who specializes in occupational diseases, I am used to
diseases with long latency--40, 50, 60 or more years
after someone has had exposure . . . Since 2012, . . .
there have been 11,824 people with cancers certified by
the [WTC Health Program]. This includes 2,614 prostate
cancers, 552 lung cancers, 741 breast cancers, as well
as over 35 male breast cancers, 667 thyroid cancers,
and dozens more . . . To date, there have been 571
cases of lymphoma certified.\31\
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\31\Moline Statement at 3.
Part of the difficulty in predicting an exact number of
people who could develop 9/11-related cancer in the future
stems from the fact that cancers can have a very long latency
period. Different forms of cancer have different latency
periods\32\, with some forms of cancer such as mesothelioma not
manifesting symptoms in their victims until 20 to 50 years
after exposure to carcinogens.\33\ Experts note, however, that
although it is thus far difficult to establish conclusively a
causal connection between exposure to 9/11-related toxins and
increased cancer rates, the results they are seeing among
individuals exposed to the mix of carcinogens at the WTC site
is ``odd, unusual and troubling.''\34\
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\32\See John Howard, Minimum Latency & Types or Categories of
Cancer, World Trade Center Health Program, Nov. 7, 2014 (outlining the
different minimum latency periods for five types or categories of
cancer covered by the WTC Health Program, ranging from a minimum
latency period of 2.5 years for thyroid cancer to an 11-year-minimum
latency period for mesothelioma).
\33\Aria Bendix, 14 Years Later, Here's What We Know About 9/11 And
Cancer, Citylab.com, Sept. 10, 2015, available at https://
www.citylab.com/equity/2015/09/14-years-later-heres-what-we-know-about-
911-and-cancer/403888/.
\34\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.
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Recent studies have further bolstered the increasingly
strong link between exposure to 9/11-related toxins and cancer,
as evident in the sharp increase in cancer rates among 9/11
responders and survivors. For example, a January 2019 Rutgers
University study identified a significant increase in head and
neck cancers among
9/11 responders, finding a 40 percent increase in diagnoses of
such cancers among this population between 2009 and 2012.\35\
The study's lead author stated that ``[s]ince cancers are
diseases of long latency, the findings of significant excess
cancer in this period point to a newly emerging trend that
requires ongoing monitoring and treatment of WTC-exposed
persons.''\36\ Last year, The New York Post reported that,
according to the WTC Health Program,\37\ almost 10,000 ``first
responders, downtown workers, residents, students and others
[had] cancer deemed 9/11-related'' and that the ``number of
cancer patients has rapidly risen since the federal program
started tracking the disease in 2013,''\38\ The Post also
reported that ``epidemiology studies have confirmed that 9/11
rescue and recovery workers have significantly higher rates of
thyroid cancer and skin melanoma, which is potentially fatal,
than found in the general population, and face a higher risk of
bladder cancer.''\39\
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\35\World Trade Center responders at increased risk for head and
neck cancers: 9/11 first responders' health still threatened from
exposure at deadly attack, study finds, Science Daily (Jan. 17, 2019),
available at https://www.sciencedaily.com/releases/2019/01/
190117090432.htm.
\36\Id.
\37\The WTC Health Program provides medical monitoring and
treatment for responders at the WTC and related sites in New York City,
Pentagon, and Shanksville, PA, and survivors who were in the New York
City disaster area. It was created by the same legislation that re-
opened the VCF in 2011. James Zadroga 9/11 Health and Compensation Act
of 2010, Pub. L. No. 111-347 (2010).
\38\Susan Edelman, Nearly 10K People Have Gotten Cancer From Toxic
9/11 Dust, N.Y. Post, Aug. 11, 2018, available at https://nypost.com/
2018/08/11/nearly-10k-people-have-gotten-cancer-from-toxic-9-11-dust/.
\39\Id.
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As Ms. Nordstrom, who has been diagnosed with 9/11-related
asthma, gastroesophageal reflux disease, chronic
rhinosinusitis, and post-traumatic stress disorder, testified
at the Subcommittee's June 11, 2019 hearing:
I haven't even had my 20th high school reunion yet,
but I already have five former classmates with
lymphomas that I just know personally. My friend
Michele is in remission from thyroid cancer. Other
classmates of mine have been diagnosed with rare bone
cancers, testicular cancers, melanomas . . . Classmates
are also starting to die now. Just a couple of months
ago, Cathy Choy, who graduated just a year after me
[from Stuyvesant High School], passed away at aged 33
of a 9/11-linked gastric cancer . . . And that is just
my school.\40\
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\40\VCF Hearing, Unofficial Tr. at 53.
The Subcommittee also received testimony from a number of
other witnesses who were 9/11 responders or survivors who have
since developed 9/11-related cancers or had a loved one who
died from a 9/11-related cancer. Thomas Mohnal is a retired
Supervisory Agent of the Federal Bureau of Investigation who
was a responder at the Pentagon crash site on 9/11 and
subsequently participated in the investigation of the 9/11
attacks.\41\ As part of his duties, he sifted through
contaminated debris and human remains and inhaled contaminated
air while collecting evidence.\42\ He testified that in August
2016, 15 years after 9/11, he was diagnosed with three tumors
that were consistent with lymphoma and that he has had 18
cycles of chemotherapy treatment, two bone marrow biopsies, and
nine PET/CT scans.\43\ In 2017, he was certified by the WTC
Health Program for his illness, meaning that he is suffering
from a 9/11-related lymphoma.\44\
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\41\VCF Hearing (written statement of Thomas J. Mohnal, retired
Supervisory Special Agent, Federal Bureau of Investigation, at 1)
[hereinafter ``Mohnal Statement''].
\42\Id. at 2.
\43\Id. at 3.
\44\Id.
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Anesta St. Rose Henry testified as to her experiences as
the widow of construction worker Candidus Henry, who died of 9/
11-related glioblastoma, a brain cancer, just two weeks prior
to her appearance at the Subcommittee's June 11, 2019
hearing.\45\ Mr. Henry had been assigned to wash the dust and
debris off of trucks that were transporting contaminated
materials from the WTC site to barges for removal.\46\ He had
been diagnosed with glioblastoma in 2017, 15 years after he
stopped working at the WTC site.\47\
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\45\VCF Hearing (written statement of Anesta St. Rose Henry at
unnumbered 1) [hereinafter ``Henry Statement''].
\46\Id.
\47\Id. at unnumbered 2.
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Luis Alvarez, a retired New York Police Department bomb
squad detective and 9/11 responder at the WTC site, was
scheduled to receive his 69th round of chemotherapy the day
after the hearing.\48\ He had developed 9/11-related liver
cancer that had metastasized throughout the rest of his body.
Sadly, Detective Alvarez passed away at age 53 just two and
half weeks after testifying before the Subcommittee.\49\
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\48\VCF Hearing (written statement of Luis Alvarez, retired
Detective, New York Police Department, at unnumbered 1) [hereinafter
``Alvarez Statement''].
\49\Sam Roberts, Luis Alvarez, Champion of 9/11 Responders, Dies at
53, N.Y. Times, June 29, 2019, available at https://www.nytimes.com/
2019/06/29/obituaries/luis-alvarez-dead.html.
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IV. September 11th Victim Compensation Fund
The September 11th Victim Compensation Fund (``VCF''),
which is administered by the Department of Justice, provides
compensation for individuals who were physically injured as a
result of the 9/11 attacks or debris removal efforts, or for
the families of those killed in the attacks. The first
iteration of the VCF operated from 2001 to 2004. Congress then
reopened the VCF in response to the fact that thousands of
individuals were manifesting symptoms from illnesses stemming
from injuries caused by the 9/11 attacks or the debris removal
efforts in the aftermath of those attacks long after the
deadline for filing claims under the original VCF. Congress
extended the authorization for the VCF in December 2015 for an
additional five years and authorization for the VCF is
currently set to expire in December 2020.
As of June 30, 2019, the VCF had received 50,730
eligibility claims and found 24,037 claimants eligible for
compensation, making an initial award determination for 22,939
of those claims.\50\ It has also issued revised awards for
5,970 claims due to an amendment or appeal of a claim.\51\ Of
the eligibility claims submitted, 16,319 had yet to be
processed.\52\ The VCF has awarded a total of $5,222,632,837.43
from its reopening in 2011 through June 30, 2019.\53\
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\50\September 11th Victim Compensation Fund, VCF Program
Statistics, July 8, 2019, available at https://www.vcf.gov/pdf/
VCFMonthlyReportJune2019.pdf.
\51\Id.
\52\Id.
\53\Id.
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A. VCF 1
Shortly after the 9/11 attacks, Congress created the
original VCF (``VCF 1'') to provide compensation for economic
and noneconomic losses for individuals who were physically
injured, or for relatives of those who were killed, as a result
of the 9/11 attacks.\54\ Congress intended for the VCF to
provide an alternative to 9/11-related tort litigation. Any
person who chose to seek compensation from the VCF waived the
right to sue for damages for 9/11-related injuries.\55\ Awards
for noneconomic losses were to be offset by any collateral
sources of compensation, such as pensions or workers
compensation benefits. VCF 1 operated from 2001 to 2004 and
awarded over $7 billion to 2,880 surviving representatives of
those who died in the attacks and to 2,680 individuals who were
injured in the attacks or in rescue efforts immediately
following the attacks.\56\ Congress did not impose any overall
spending limit on VCF 1.
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\54\Air Transportation Safety and System Stabilization Act of 2001,
Pub. L. No. 107-42 (2001), codified at 49 U.S.C. Sec. 4101 note.
\55\Id.
\56\H. Rept. 111-560, Part 2, at 32.
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B. VCF 2
Congress reopened the VCF in 2011 (``VCF 2'') with the
passage and enactment of the James Zadroga 9/11 Health and
Compensation Act of 2010.\57\ In addition to reopening the VCF
and keeping the original structure of VCF 1 intact, the Act
expanded eligibility for the VCF to include those who
participated in debris removal efforts in the months following
the attack.\58\ VCF 2 was set to close in October 2016.
Congress capped funding for VCF 2 at $2.775 billion to cover
both the payment of awards and administrative costs.
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\57\Pub. L. No. 111-347 (2010).
\58\Id.
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C. 2015 Reauthorization
On December 18, 2015, President Barack Obama signed into
law appropriations legislation that extended authorization for
the VCF for five more years, among other things.\59\ The
legislation also added an appropriation of $4.6 billion to
cover awards and expenses during the reauthorization period,
and also appropriated money to pay any claims awarded prior to
the reauthorization period for which there had been
insufficient funding to pay all valid claims in full, with the
proviso that the VCF could not spend any more than the total
amount appropriated to the VCF (i.e., $2.775 billion for pre-
December 18, 2015 VCF 2 claims, $4.6 billion for post-December
18, 2015 claims, for a total of $7.375 billion.)\60\ The
reauthorization legislation also included changes to the VCF's
policies and procedures for evaluating claims and calculating
losses. Most notably, with respect to compensation for
noneconomic losses like pain and suffering, the bill added a
cap of $250,000 per claim if the claim was based on cancer, and
a cap of $90,000 for non-cancer claims.\61\ The bill also
limited the calculation of economic loss to a maximum of
$200,000 annual gross income per claimant.\62\ Finally, the
reauthorization also required the VCF Special Master to conduct
an annual assessment of policies and procedures to ensure,
among other things, that the VCF would not spend more money
than the $4.6 billion allocated by Congress to pay claims for
which the Special Master postmarks and transmits award
determinations after December 18, 2015.\63\
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\59\Consolidated Appropriations Act, 2016, Title IV, Pub. L. No.
114-113 (2015).
\60\Id.
\61\Id.
\62\Id.
\63\Id.
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D. VCF Eligibility and Compensation
In order to be eligible for a VCF award, an individual
must: (1) register a claim by the relevant deadline; (2) obtain
a certification from the WTC Health Program for treatment of a
physical injury or condition that is determined to be a result
of the 9/11 attacks or debris removal following the attacks;
and (3) demonstrate presence at a 9/11 crash site or along
debris removal routes at some point between September 11, 2001
and May 30, 2002, the day that debris removal efforts
officially ended.\64\ Where relevant, a claimant must also
timely dismiss, withdraw, or settle any 9/11-related lawsuit;
if already compensated under VCF 1, establish a new condition
or loss that was not previously compensated for; and, if the
individual filing the claim is someone other than the victim,
show that the claimant is authorized to act on the victim's
behalf.\65\ Once the VCF determines that an individual is
eligible for compensation, it calculates awards based on the
specific circumstances of the individual claimant, determining
non-economic loss amounts based on the nature and severity of
the claimant's physical injury or condition as well as any
economic loss.\66\ The VCF must subtract from the award amount
certain ``collateral offsets,'' which are benefits paid to the
claimant by other entities for the eligible 9/11 condition,
including disability benefits, life insurance payments, or
settlements from 9/11-related lawsuits.\67\
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\64\VCF Hearing (written statement of Rupa Bhattacharyya, Special
Master, September 11th Victim Compensation Fund, at 3) [hereinafter
``Bhattacharyya Statement'']; September 11th Victim Compensation Fund,
Policies and Procedures, Feb. 2019, available at https://www.vcf.gov/
pdf/VCFPolicy.pdf [hereinafter ``VCF Policies and Procedures''] See
also September 11th Victim Compensation Fund, VCF General Information,
Feb. 2019, available at https://www.vcf.gov/pdf/VCF_InfoSheet.pdf.
\65\VCF Policies and Procedures.
\66\Bhattacharyya Statement at 3.
\67\Id.
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E. 2019 Announcement of Funding Deficiency and Award
Reductions
On February 15, 2019, the VCF Special Master, Rupa
Bhattcharyya, published the VCF's Seventh Annual Status Report
and Third Annual Reassessment of Policies and Procedures.\68\
The Special Master is required to ensure each year that the
VCF's policies and procedures do not result in the payment of
more money than the total amount allocated for its funding, in
this case, $7.375 billion.\69\ After completing the most recent
assessment, the Special Master determined that there was
insufficient funding to pay all pending and projected claims
under then-current VCF policies and procedures, mainly because
of a sharp increase in the number of claims in the preceding
four months.\70\ According to the report, the VCF had already
paid $5 billion in awards as of the date of the report, with $2
billion remaining to pay future awards with two years remaining
in the VCF's authorization and thousands of claims yet to be
decided.\71\ As a result, the Special Master announced that the
VCF would substantially reduce awards to ensure that the VCF
did not run out of money.\72\
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\68\Rupa Bhattacharyya, Special Master, September 11th Victim
Compensation Fund, Seventh Annual Status Report and Third Annual
Reassessment of Policies and Procedures, Feb. 15, 2019, [hereinafter
``Special Master Report''] available at https://www.vcf.gov/pdf/
VCFStatusReportFeb2019.pdf.
\69\Air Transportation Safety and System Stabilization Act of 2001,
Pub. L. No. 107-42, Sec. Sec. 406(d)(2)(C)(i)(II) and (ii) (2001);
Bhattacharyya Statement at 5.
\70\Special Master Report at 42-43; Bhattacharyya Statement at 5-6.
\71\Special Master Report at 43; see also Bhattacharyya Statement
at 6.
\72\Id.
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In her testimony before the Subcommittee on June 11, 2019,
Special Master Bhattacharyya stated that the VCF was ``able to
pinpoint several new trends, which reflect significant changes
to the composition of the VCF's claimant population since
Congress last examined [the VCF authorizing statute] in 2015''
that explained the sharp increase in claims.\73\ First was a
dramatic increase in claims filed on behalf of those who have
died as a result of their 9/11-related physical health
condition.\74\ Second was ``a marked increase in cancer
claims.''\75\ Third was ``a marked increase in claims from the
survivor population, meaning those who lived, worked, or went
to school in the [WTC] area.''\76\ According to the Special
Master, these trends, combined with the fact that deceased
claims and cancer claims tend to be higher value awards,
resulted in the VCF expending available funds more quickly than
anticipated.\77\
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\73\Bhattacharyya Statement at 6.
\74\Id.
\75\Id.
\76\Id.
\77\Id.
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In determining how to respond to the funding deficiency,
the Special Master sought to ensure that funding be prioritized
for awards for those with the most debilitating conditions (as
required by the statute), that every individual suffering from
a physical health condition as a result of 9/11 receive at
least some compensation, and that at least some allowance be
made for claimants who had already filed their claims as of
February 2019.\78\ The Special Master ``concluded that the
fairest way to implement the required reduction of awards was
to do so across the board'' and that this approach was
consistent with the ``clear majority'' of public comments that
the VCF received on how best to respond to the funding
deficiency.\79\ In light of these goals, the VCF announced that
effective February 25, 2019, it would substantially reduce
awards for pending and future claims.\80\ For any claim or
amendment to a claim submitted on or before February 1, 2019,
the economic and non-economic loss amounts (prior to
subtraction of any offsets) were to be reduced by 50%.\81\ For
any claim or amendment to a claim submitted on or after
February 2, 2019, the economic and non-economic loss amounts
(prior to subtraction of any offsets) were to be reduced by
70%.\82\ Offsets must be subtracted in full from the calculated
reduced award, meaning that it is possible that some claimants
who might otherwise have been entitled to compensation from the
VCF may receive nothing.\83\ According to the Special Master,
835 claims have been subject to these cuts so far.\84\
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\78\September 11th Victim Compensation Fund, Determination of
Funding Insufficiency: Questions and Answers, March 2019, available at
https://www.vcf.gov/pdf/VCFFIQandA.pdf [hereinafter ``Funding Q&A''].
\79\Bhattacharyya Statement at 7.
\80\Funding Q&A.
\81\Id.; Bhattacharyya Statement at 8.
\82\Id.
\83\Bhattacharyya Statement at 8; VCF Hearing, Unofficial Tr. at
81-82.
\84\Bhattacharyya Statement at 8.
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NEED FOR THE LEGISLATION
H.R. 1327 would extend the authorization for the VCF until
2090. It would also direct that funds not otherwise
appropriated be placed into the VCF in ``such sums as may be
necessary'' to fund the VCF's payment of claims and its
administrative expenses. With respect to any claimants whose
awards were cut because of the current funding deficiency faced
by the VCF, the bill directs the VCF Special Master to pay the
difference between the amount that the claimant is entitled to
and the amount that the claimant was actually paid when there
is sufficient funding to do so. It also provides the VCF
Special Master with the discretion to issue awards for
noneconomic losses in amounts beyond the statutory caps
contained in current law when special circumstances warrant.
Finally, the bill would ensure that, with respect to the
calculation of economic losses, the limit of $200,000 annual
gross income is periodically adjusted based on at least once
every five years.
A long-term extension of the VCF's authorization is
necessary in light of the substantial evidence outlined above
that 9/11-related illnesses, including cancers, continue to
manifest themselves in responders and survivors after long
latency periods and that they will continue to do so for
decades to come. Given the uncertainty surrounding the exact
number of those who will become ill in the future from 9/11-
related diseases, on the one hand, and the certainty that many
more people will become sick, on the other, a long-term
reauthorization is justified. By extending the VCF's
authorization to 2090, H.R. 1327 ensures that almost all of
those alive today who may be impacted by a 9/11-related health
condition and who would otherwise meet the VCF's eligibility
requirements can be compensated in the future. Experience from
two short five-year authorization periods since 2011 has
demonstrated that the need for the VCF is long-term. As the VCF
Special Master testified:
while the population of potential claimants is a
finite set, its exact numbers are unknown. There is no
accurate count of how many people might have been
exposed to toxins stemming from the attacks, and there
is considerable uncertainty about the number of
individuals who ultimately will fall ill due to the
long latency periods that can elapse before
manifestation of the cancers determined to be related
to 9/11 exposure.\85\
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\85\Bhattacharyya Statement at 5.
Dr. Moline testified that while it is ``not possible to know
the exact number [of people who will develop 9/11-related
illnesses in the next 25 to 50 years], there are going to be
10,000 to 20,000 more cancers . . . plus other diseases,''
including ``lung diseases that may require lung transplants''
and ``sarcoidosis, which is a fairly rare disease but is common
in World Trade Center-exposed individuals.''\86\ And, as
advocate Jon Stewart put it in his Subcommittee testimony,
``the idea that you can only give [9/11 responders] five more
years of the VCF because you are not quite sure what is going
to happen five years from now? Well, I can tell you, I am
pretty sure what is going to happen five years from now: more
of these men and women are going to get sick, and they are
going to die.''\87\
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\86\VCF Hearing, Unofficial Tr. at 82.
\87\Id. at 78.
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For the same reasons, there should be no overall spending
limitation on the VCF, as was the case with VCF 1, and H.R.
1327 rightly does not include such an overall spending
limitation. Indeed, as VCF Special Master Bhattacharyya
outlined in her testimony, it was, in part, a combination of
increases in cancer and other types of claims that were
unanticipated during consideration of the last reauthorization
in 2015 and the overall funding limitation of $7.375 billion
that led to the current funding deficiency and, with it, the 50
percent and 70 percent cuts in awards. Congress must not make
the same mistake again.
H.R. 1327 also ensures that those VCF claimants whose
awards were cut by either 50 or 70 percent because of the 2019
funding deficiency have their awards fully restored. As many of
the responder and survivor witnesses at the Subcommittee
hearing testified, there is no justification for valuing some
victims' lives at 50 to 70 percent less than other similarly-
situated victims or denying some victims the opportunity to
receive any compensation at all should the VCF be allowed to
expire in 2020, solely because of when they happen to become
ill.\88\
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\88\Henry Statement at unnumbered 1 (``The reason I have to worry
is because Congress thinks its ok for my husband's life to be worth at
least 70% less than other construction workers that have died or become
sick from being at Ground Zero. If he died 2 years ago, everything
would be ok. I feel horrible for those that will die 2 years from now
because their families will get nothing [if Congress does not
reauthorize the VCF]''); Mohnal Statement at 1, 3 (``My life was
certainly worth no more or less than the other First Responders that
came to the Pentagon and whether it is Shanksville, the World Trade
Center or the Pentagon, we were one then and we are one now as we sit
before you . . . I am here today to ask why Congress believes that my
life is no worth the same as those that became sick before me and some
how my life is worth more than those that will most certainly come
after me''); O'Connell Statement at 5 (``how is it fair that I was duly
compensated, but others that are now sick and dying from their exposure
will not be? It seems unfair that I was unlucky to get sick, but lucky
in that I got sick early, so that I could avoid a potential cut, or
worse, having no VCF after December 2020?''); Alvarez Statement at
unnumbered 2 (``Now the 9/11 illnesses have taken many of us and we are
all worried about our children, our spouses and our families and what
happens if we are not here. The VCF has done a wonderful job and
treated my family with great respect. But my life isn't worth more than
the next responder to get cancer. My family's needs are not worth less
than others that have already died''); Nordstrom Statement at 6 (``A
responder or a survivor who gets sick in 2027 deserves the same help
that they would've have [sic] received if they got sick in 2017'').
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To the extent that there is a concern that the VCF is
intended mostly to help those from the New York City region,
the witnesses provided testimony that establishes that the VCF
is of national significance and that people from every part of
the country are impacted by it. To begin with, it should go
without saying that the 9/11 attacks were an act of war against
the United States, not just an attack on New York City. As Mr.
Stewart put it,
I am awfully tired of hearing that it is a 9/11 New
York issue. Al-Qaida didn't shout `Death to Tribeca.'
They attacked America. And these men and women and
their response to it is what brought our country back.
It is what gave a reeling Nation a solid foundation to
stand back upon, to remind us of why this country is
great, of why this country is worth fighting for.\89\
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\89\VCF Hearing, Unofficial Tr. at 78.
It is also worth noting that the VCF is a national program, and
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as VCF Special Master Bhattacharyya testified, the
VCF has received claims from individuals in every state
of the nation. This includes those who traveled to New
York City, the Pentagon, and Shanksville from all over
the country as part of the response efforts, both in
official capacities and as volunteers, and those who
have relocated elsewhere in the intervening years since
the attacks.\90\
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\90\Bhattacharyya Statement at 2. See also Mohnal Statement at 2
(describing how FBI agents and members of the Evidence Response Teams
from FBI offices around the country were deployed to the Pentagon to
assist in the terrorism investigation); Nordstrom Statement at 6
(``Stuyvesant alumni alone live in locales from rural Tennessee, to
coastal Oregon, to Texas and beyond. Thousands of other New York City
kids have begun their adult lives in other parts of the country as
well'').
H.R. 1327's grant of discretionary authority to the Special
Master to exceed the current statutory caps on awards for
noneconomic losses is necessary to ensure that, in rare cases,
the Special Master may exceed the cap when special
circumstances warrant. For example, current law caps awards for
non-economic loss for non-cancer claims at $90,000, but a
claimant who may require a double-lung transplant because of a
non-cancer but nonetheless severe lung condition may need more
than $90,000 to be made whole.
In addition, H.R. 1327 would require the Special Master to
index the current $200,000 annual gross income limitation to
the Consumer Price Index for All Urban Consumers. This
provision ensures that calculations of economic loss accurately
reflect increasing consumer prices and that a lack of such
indexing will not effectively function as a cut in award
amounts.
While the terrorists who carried out the 9/11 attacks bear
the ultimate moral responsibility for the harms inflicted on
Americans on that terrible day, the federal government also
bears moral responsibility for causing or exacerbating the
illnesses that many responders and survivors now suffer from,
years after 9/11. As noted above, many people in Lower
Manhattan relied on the EPA's false assurances that the air was
safe to breath in the immediate aftermath of the attacks. As
such, the federal government, acting through Congress and the
Executive Branch, bears an obligation to act quickly to extend
the VCF and help those who became sick or whose illnesses were
worsened because of such reliance. As Dr Moline noted in her
testimony, ``Soon, the day will come when there are more people
who have died of WTC related illnesses after 9/11 than perished
on that horrible day when our nation was attacked.''\91\
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\91\Moline Statement at 4.
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Hearings
For the purposes of section 103(i) of H. Res. 6 of the
116th Congress, the following hearing was used to consider H.R.
1327: Hearing on ``The Need to Reauthorize the September 11th
Victim Compensation Fund'' held before the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties on June 11,
2019.\92\ The Subcommittee heard from two witness panels. The
first panel consisted of Rep. Carolyn Maloney (D-NY) and Rep.
Peter King (R-NY), two of the lead sponsors of H.R. 1327. The
second panel consisted of a bipartisan witness panel consisting
of: (1) Rupa Bhattacharyya, Special Master of the September
11th Victim Compensation Fund; (2) Dr. Jacqueline Moline, a 9/
11 health care provider; (3) Lila Nordstrom, a 9/11 WTC
survivor; (4) Anesta Maria St. Rose Henry, widow of a
construction worker Candidus Henry, who was a WTC responder;
(5) Tom Mohnal, a retired Federal Bureau of Investigation
Supervisory Agent and Pentagon responder; (6) Luis Alvarez, a
retired New York Police Department detective and WTC responder;
(7) Michael O'Connell, a retired Fire Department of New York
lieutenant and WTC responder; and (8) Jon Stewart, advocate for
9/11 responders and survivors. At the hearing, the witnesses
testified about the work of the VCF; the continuing emergence
of new cases of serious and life-threatening illnesses with
long latency periods, including cancers, among 9/11 responders
and survivors linked to their exposure to 9/11-related toxins;
and the impact of substantial cuts in awards that the VCF
instituted effective since February 2019 due to a funding
deficiency.
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\92\VCF Hearing.
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Committee Consideration
On June 12, 2019, the Committee met in open session and
ordered the bill, H.R. 1327, favorably reported without
amendment by voice vote, 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 no
rollcall votes occurred during the Committee's consideration of
H.R. 1327.
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
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 1327 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, July 11, 2019.
Hon. Jerrold Nadler,
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. 1327, the Never
Forget the Heroes: Permanent Authorization of the September
11th Victim Compensation Fund Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl,
who can be reached at 226-2860.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
cc: Honorable Doug Collins
Ranking Member
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The bill would
Appropriate such sums as are necessary for
the September 11th Victim Compensation Fund (VCF) to
pay claims to eligible victims through fiscal year 2090
Require the VCF to fully compensate
claimants who have received reduced awards in the past
because of declining balances in the fund
Estimated budgetary effects would primarily stem from
Payments to currently eligible claimants and
to those found eligible in the future
Costs to administer the VCF
Areas of significant uncertainty include
Identifying incidence rates for adverse
health conditions, particularly cancer, in the eligible
population
Estimating the number of people who will
file successful claims
Bill Summary: H.R. 1327 would authorize the appropriation
of whatever amounts are necessary for the September 11th Victim
Compensation Fund to pay claims to eligible people through
fiscal year 2090. The bill also would require the VCF to fully
compensate claimants who have received reduced awards in the
past because of declining fund balances.
Estimated Federal Cost: The estimated budgetary effect of
H.R. 1327 is shown in Table 1. The costs of the legislation
fall within budget function 750 (administration of justice).
TABLE 1.--ESTIMATED BUDGETARY EFFECTS OF H.R. 1327
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
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2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2019-2024 2019-2029
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increases in Direct Spending
Cost of Claims Filed Before
Enactment:
Estimated Budget Authority. 0 600 940 1,370 1,260 0 0 0 0 0 0 4,170 4,170
Estimated Outlays.......... 0 600 940 1,370 1,260 0 0 0 0 0 0 4,170 4,170
Cost of Claims Filed After
Enactment:
Estimated Budget Authority. 0 350 440 570 590 600 610 620 630 670 700 2,550 5,780
Estimated Outlays.......... 0 350 440 570 590 600 610 620 630 670 700 2,550 5,780
Administrative Costs:
Estimated Budget Authority. 0 0 7 7 18 33 33 33 33 33 33 65 230
Estimated Outlays.......... 0 0 7 7 18 33 33 33 33 33 33 65 230
Total:
Estimated Budget 0 950 1,387 1,947 1,868 633 643 653 663 703 733 6,785 10,180
Authority.............
Estimated Outlays...... 0 950 1,387 1,947 1,868 633 643 653 663 703 733 6,785 10,180
--------------------------------------------------------------------------------------------------------------------------------------------------------
Background: The Congress created the September 11th Victim
Compensation Fund in 2001 to compensate people (or their heirs)
who were injured or killed in the terrorist attacks of
September 11, 2001. The fund compensates eligible claimants or
their surviving personal representatives (often, family
members) for their economic and noneconomic losses.\1\
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\1\Economic losses consist of lost earnings or benefits related to
employment; personal losses of business or employment opportunities;
losses due to death; burial costs; and medical expenses that a claimant
has already paid. Noneconomic losses consist of physical and emotional
pain, physical impairment, disfigurement, loss of enjoyment of life,
and other losses except psychological or mental health conditions,
which are not covered.
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In 2004, after paying $7.0 billion in claims, the VCF
closed. In 2011, the James Zadroga 9/11 Health and Compensation
Act of 2010, appropriated $2.775 billion to the VCF for five
years to pay new claims. On December 18, 2015, the Congress
extended the VCF's authority to accept claims for five more
years and appropriated an additional $4.6 billion.
Under current law, payments to claimants and the
administrative costs of the VCF are capped at $7.375 billion,
and people have until December 18, 2020, to file claims.
After that date, CBO expects, the VCF will spend its
remaining balances--which totaled about $3.2 billion at the
beginning of fiscal year 2019--to pay eligible claims. The fund
is expected to cease operations near the beginning of fiscal
year 2023.
If balances are insufficient to pay the full amounts
awarded, claimants will receive payments in proportion to the
fund's balance. Beginning in February 2019, the VCF's special
master began to reduce some award payments because the fund's
administrators anticipated that the VCF would not have
sufficient funds to pay all valid claims. In June 2019, the
special master reported that the program had awarded $5.174
billion in compensation since 2011, and that the fund would
need $4.616 billion above the current appropriation to pay all
remaining claims including those expected to be filed before
the statutory deadline.\2\
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\2\See the testimony of Rupa Bhattacharyya, Special Master,
September 11th Victim Compensation Fund, before the Subcommittee on the
Constitution, Civil Rights and Civil Liberties of the House Committee
on the Judiciary (June 11, 2019), https://go.usa.gov/xyrzh (PDF, 288
KB).
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Claims process: Under the Zadroga Act, prospective
claimants must register with the VCF to be eligible to file a
claim or to preserve their right to file a claim in the future.
Claimants are considered to have met the registration deadline
if they submit their application within two years of the date
on which they knew (or reasonably should have known) the
following had occurred:
They suffered physical harm as a result of
the attacks on September 11, or as a result of
hazardous exposure during the rescue period or during
debris removal;
They have received a diagnosis by a medical
professional that is approved by the VCF as a
qualifying physical injury or health condition;\3\ and
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\3\Qualifying health conditions and physical injuries under the
Zadroga Act and VCF program regulations include various types of
cancer, aerodigestive disorders, musculoskeletal disorders, and acute
traumatic injury. The VCF does not pay claims for post-traumatic stress
disorder or psychological or mental health conditions. See Eligibility
Definitions and Requirements, 28 C.F.R. Sec. 104.2 (2016), http://
tinyurl.com/y4t5oup4.
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They have a determination by a government
entity, such as the World Trade Center (WTC) Health
Program or a state or local government, that their
injury or condition was caused by exposure at the
attack sites or other locations during specified
periods.\4\
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\4\Under the Zadroga Act and VCF program regulations, claimants
must document their physical presence at an attack site or other
specified location during a specific period and for a minimum duration.
For example, people who participated in rescue and cleanup in Lower
Manhattan between September 11 and September 30, 2001, must document
their presence for at least 24 hours at that location. See Filing for
Compensation, 28 C.F.R. Sec. 104.22 (2016), http://tinyurl.com/
y5ok38sy.
---------------------------------------------------------------------------
Most of the people registered with the VCF have been
diagnosed with an eligible condition confirmed by the WTC
Health Program, which is administered by the Centers for
Disease Control and Prevention (CDC).\5\
---------------------------------------------------------------------------
\5\The WTC Health Program provides treatment and monitoring to
eligible first responders and survivors. Participation is not a
prerequisite for registering with the VCF.
---------------------------------------------------------------------------
Claimants must meet statutory requirements and be found
eligible by the VCF to obtain compensation. Award amounts for
noneconomic losses are based on the type and severity of the
victim's condition and the degree to which those conditions
affect the victim's ability to maintain normal activities and
enjoyment of daily life. Almost all successful claimants have
received compensation for noneconomic losses. About one-fifth
of successful claimants also have received compensation for
economic losses, including loss of wages and employer-provided
benefits. Their claims are calculated based on occupational
disability and are offset by any other payments they receive
(such as disability benefits).
Claims data: Since the VCF was reopened in 2011, the
program has paid awards to about 22,400 claimants at a cost of
about $5.2 billion (see Table 2). Thirty-seven percent of those
awards were paid to people with cancer and 63 percent were paid
to people who had noncancerous conditions alone. From January
2017 to the present, the share of awards paid to claimants with
cancer has risen to 45 percent. Since 2017, the average amount
of awards for both cancerous and noncancerous conditions also
increased, in large part because the size of revisions to
awards increased over that period.
TABLE 2.--CBO'S ESTIMATE OF CLAIMS AND AWARDS PAID FROM THE VICTIM COMPENSATION FUND SINCE 2011
----------------------------------------------------------------------------------------------------------------
Total Cost
Number of Percentage Average of Claims
Health Condition Claims of Claims Award (Millions
(Dollars) of dollars)
----------------------------------------------------------------------------------------------------------------
Claims Paid From 2011 Through May 2019
Cancer...................................................... 8,310 37 351,000 2,920
Noncancerous................................................ 14,120 63 160,000 2,260
---------------------------------------------------
Total................................................... 22,430 100 n.a. 5,180
Subset of Claims Paid From January 2017 Through May 2019a
Cancer...................................................... 4,960 45 413,000 2,050
Noncancerous................................................ 5,980 55 213,000 1,270
---------------------------------------------------
Total................................................... 10,940 100 n.a. 3,320
----------------------------------------------------------------------------------------------------------------
n.a. = not applicable.
aAverage award amounts and the total costs of claims combine compensation received from initial awards plus
compensation received later in revised awards. As a result, the $3,320 million estimated to have been spent on
claims from January 2017 through May 2019 includes some compensation from initial awards that was spent by the
Victim Compensation Fund before 2017.
From the time the VCF reopened in 2011 through May 2019,
more than 47,000 claims for compensation have been filed; those
claims have the following status:\6\
---------------------------------------------------------------------------
\6\See September 11th Victim Compensation Fund, ``VCF Program
Statistics (As of May 31, 2019)'' (accessed July 3, 2019), https://
go.usa.gov/xygBh (PDF, 426 KB).
---------------------------------------------------------------------------
About 22,400 received compensation,
About 17,600 are under review, and
About 7,200 either have been determined to
be ineligible or cannot be processed because of
problems with documentation.
Over that period, nearly 6,000 claimants qualified for
additional compensation--revisions of original awards--either
because claimants successfully appealed a denial or because
they filed an amendment seeking a revised award determination
on the basis of new information or because of a newly diagnosed
health condition.
Basis of estimate: For this estimate, CBO assumes that the
bill will be enacted near the end of fiscal year 2019.
CBO's estimate of payments under H.R. 1327 is based on an
analysis of the number, amounts, and type of awards the fund
has paid in recent years; estimates of the incidence rates of
qualifying health conditions--cancerous and noncancerous--in
the eligible population; and estimates of the number of people
who would successfully file claims.
As shown in Table 2, the VCF has paid awards to about
22,400 claimants over the history of the program. CBO's
estimate of the costs of H.R. 1327 is based on an analysis of
the costs to compensate three groups of claims:
19,000 additional claims, filed before
October 1, 2019, that CBO estimates will not yet have
been paid by the time this legislation is enacted;
Several hundred claims that have already
been paid at reduced compensation levels because of
declining fund balances; and
18,100 new claims that CBO estimates will be
filed and paid after October 1, 2019.
CBO estimates that all of the 19,000 claims filed by
October 1, 2019 will be paid by 2023 (see Table 3). Some
payments under the current program have been reduced to
accommodate the fund's declining balances.
TABLE 3.--CBO'S ESTIMATE OF AMOUNTS REQUIRED TO FULLY PAY CLAIMS FILED WITH THE VICTIM COMPENSATION FUND
BEFORE OCTOBER 2019
----------------------------------------------------------------------------------------------------------------
Total Cost
Number of Percentage Average of Claims
Health Condition Claims of Claims Award (Millions
(Dollars) of dollars)
----------------------------------------------------------------------------------------------------------------
Estimated Claims
Cancer...................................................... 8,550 45 415,000 3,550
Noncancerous................................................ 10,450 55 214,000 2,240
---------------------------------------------------
Total................................................... 19,000 100 n.a. 5,790
----------------------------------------------------------------------------------------------------------------
Estimated Total Cost to Pay Claims
Estimated Total Cost to Fully Pay Claims Filed Before 5,790
October 2019........................................
Less Estimated Unobligated Balancesa................. 1,620
------------------
Estimated Net Additional Cost Under H.R. 1327b....... 4,170
------------------------------------------------------------------------
VCF = Victim Compensation Fund; n.a. = not applicable.
aThe unobligated balances is CBO's estimate of amounts already
appropriated to the VCF that will be available to pay claims at the
end of September 2019.
bThe net additional cost under the bill includes about $250 million in
compensation that would be paid, retroactively, to claimants who
received awards at reduced levels. Starting in late February 2019, the
VCF began reducing the value of some claims in anticipation of the VCF
running out of funding.
Estimated cost to fully pay claims filed before fiscal year
2020: The 19,000 claims that CBO estimates will have been filed
by the beginning of fiscal year 2020 and that will eventually
receive awards include more than 15,000 claims currently in
review that CBO estimates will be approved, 2,800 claims that
have documentation problems that CBO estimates eventually will
be resolved, and 1,200 eligible claims that CBO estimates will
be filed by the time the legislation is enacted.
The amount of an award depends on whether the claim is for:
A cancerous or noncancerous condition,
Injury or death, and
Economic loss, noneconomic loss, or both.
Using information provided by the VCF about the number and
amounts of awards paid over the 2011-2019 period, CBO estimates
that all 19,000 claimants will receive awards of varying size
over the 2020-2023 period. The largest determinant of
differences in the size of awards is whether the compensation
is for cancer or for a noncancerous illness.\7\ The amount also
depends on whether a claimant would be eligible for additional
compensation for economic losses and whether the claim is for
an individual who has died.
---------------------------------------------------------------------------
\7\CBO estimates that the average cancer award for claims filed
before enactment (as shown in Table 3) and for claims that would be
filed over the 2020-2029 period (as shown in Table 4) would be roughly
double the average noncancerous award. Much of the difference is
attributable to VCF regulations, which authorize the program to award
up t $250,000 in noneconomic damages to claimants with cancer and up to
$90,000 to claimants with noncancerous illnesses. See Determination of
Presumed Economic Losses for Injured Claimants, 28 C.F.R. Sec. 104.46
(2016), http://tinyurl.com/y5tlu4lb.
---------------------------------------------------------------------------
CBO's estimates of average awards for each type of claim
combine compensation from initial awards with any additional
compensation provided in revisions to those awards. CBO
estimated the distribution and average amount of each type of
claim on the basis of data provided by the VCF for 2017 to the
present. The estimate of the costs of full compensation for all
claims filed before the end of fiscal year 2019 is summarized
in Table 3.
Of the 19,000 claims, CBO estimates that 45 percent will be
for cancer and 55 percent will be for noncancerous conditions
and that compensation would be provided for noneconomic losses
alone in 76 percent of those cases. Six percent of the claims
would be for victims who have died, CBO estimates.
In total, CBO estimates, full compensation for those 19,000
claims would cost about $5.8 billion. Based on the program's
activity in recent years, CBO estimates that the VCF would
process 4,000 to 5,000 claims annually and would close out that
set of claims in 2023.
By October 2019, CBO estimates, VCF will carry unobligated
balances of $1.6 billion to cover claims. Under current law,
those balances will be spent over the 2020-2023 period to pay
claims filed before October 2019--with some awards reduced
because of insufficient funding. As a result, CBO estimates,
compensating all 19,000 claimants for the full value of their
estimated awards would cost an additional $4.2 billion.\8\ That
additional amount would be attributable to H.R. 1327.
---------------------------------------------------------------------------
\8\The $4.2 billion includes $250 million in compensation that
would be paid, retroactively, to claimants who received awards at
reduced levels. Starting in late February 2019, the VCF began reducing
the value of some claims in anticipation of the VCF running out of
funding. Using information provided by the VCF about the number of
claims that have been subject to reduction and the value of those
reductions so far, CBO estimates that claimants subject to reductions,
in the aggregate, will be paid about $250 million less than the full
value of their awards through the end of fiscal year 2019. H.R. 1327
would make that estimated amount available to fully compensate those
claimants.
---------------------------------------------------------------------------
Estimate of claims filed and paid after October 1, 2019:
The second component of CBO's analysis focused on the
population that CBO estimates will develop qualifying health
conditions--and seek compensation--after enactment of H.R.
1327. CBO estimates that future claims--those filed and paid
after enactment--would total roughly 18,000 over the 2020-2029
period (see Table 4).
TABLE 4.--CBO'S ESTIMATE OF THE FUTURE COST OF CLAIMS FILED WITH AND PAID BY THE VICTIM COMPENSATION FUND AFTER
OCTOBER 1, 2019
----------------------------------------------------------------------------------------------------------------
Total Cost
Number of Percentage Average of Claims
Health Condition Claims of Claims Award (Millions
(Dollars) of dollars)
----------------------------------------------------------------------------------------------------------------
Cancer...................................................... 11,470 63 395,000 4,530
Noncancerous................................................ 6,600 37 190,000 1,250
---------------------------------------------------
Total................................................... 18,070 100 n.a. 5,780
----------------------------------------------------------------------------------------------------------------
n.a. = not applicable.
Affected Population and Mortality. According to New York
City's World Trade Center Health Registry, more than 410,000
people, including 90,000 first responders, were directly
exposed to environmental contaminants in the aftermath of the
September 11 attacks.\9\ To date, about 95,000 people--80
percent of them first responder--participate in the WTC Health
Program.\10\ About half of those participants have been treated
for health conditions; others who are at risk of developing
illnesses, particularly cancer, are being monitored by the
program.
---------------------------------------------------------------------------
\9\For more information, see NYC 9/11 Health, ``World Trade Center
Health Registry'' (accessed July 3, 2019), https://go.usa.gov/xyTxX.
\10\Currently, about 75,000 first responders and 20,000 other
survivors are enrolled in the WTC Health Program. About 3 percent of
those enrollees have psychological ailments only, which do no qualify
for compensationn from the VCF. Over the history of the WTC Health
Program, 2,355 enrollees have died.
---------------------------------------------------------------------------
To estimate the number of people who will develop health
conditions in future years and would seek compensation from the
VCF under H.R. 1327, CBO first reduced the eligible population
of 410,000 exposed people, to account for the following
information:
About 67,000 people that CBO estimates have
died since 2001,
Roughly 22,500 people who already have
received full compensation from the VCF, and
About 19,000 claimants expected to file before
October 2019 who already are accounted for elsewhere in
this cost estimate.
For the remaining potential claimants--estimated to total
about 300,000 people in 2020--CBO used CDC's mortality data to
remove from that group the estimated number of deaths from all
possible causes over the 2020-2029 period.
Cancer Incidence. CBO used CDC's current data on incidence
rates for cancer in the general population to estimate the
number of people in the affected population who can be expected
to develop cancer each year. CBO used rates that account for
differences in the incidence of cancer by sex, age, race, and
ethnicity in a manner that is representative of the reported
demographic characteristics of the eligible population.
CBO also reviewed several recent studies on cancer
incidence in the population directly exposed to carcinogens as
a result of the attacks. Those studies indicate that the
incidence of several types of cancer--particularly prostate and
skin cancers--is elevated in the exposed population. However,
the magnitude of the increase varies widely by the type of
cancer.\11\ Demonstrated increases in cancer incidence range
from 5 percent to 20 percent higher among people directly
exposed to carcinogens at the attack sites compared with rates
in the general population. Most of the published research has
focused on first responders and recovery workers, who
experienced greater exposures to carcinogens than other
survivors did.\12\
---------------------------------------------------------------------------
\11\ See Eli J. Kleinman and others, ``NYPD Cancer Incidence Rates
1995-2014 Encompassing the Entire World Trade Center Cohort,'' Journal
of Occupational and Environmental Medicine, vol. 57, no. 10, pp. e101-
e113 (October 2015), https://doi.org/10.1097/JOM.0000000000000542.
\12\ See Ankura Singh and others, ``Estimation of Future Cancer
Burden Among Rescue and Recovery Workers Exposed to the World Trade
Center Disaster,'' Journal of the American Medical Association (JAMA)
Oncology, vol. 4, no. 6 (June 2018), pp. 828-831, https://doi.org/
10.1001/jamaoncol.2018.0504; Jiehui Li and others, ``Ten-Year Cancer
Incidence in Rescue/Recovery Workers and Civilians Exposed to the
September 11, 2001 Terrorist Attacks on the World Trade Center,''
American Journal of Industrial Medicine, vol. 59, no. 9 (September
2016), pp. 709-721, https://doi.org/10.1002/ajim.22638; and Samara
Solan and others, ``Cancer Incidence in World Trade Center Rescue and
Recovery Workers, 2001-2008,'' Environmental Health Perspectives, vol.
121, no. 6 (June 2013), pp. 699-704, https://doi.org/10.1289/
ehp.1205894.
---------------------------------------------------------------------------
On that basis, CBO estimates that cancer incidence would be
about 11 percent higher, on average, among first responders and
recovery workers and about 6 percent higher among other
eligible survivors, relative to the general population. (The
estimated incidence of cancer for the combined populations of
responders and survivors, using a weighted average, is about 8
percent higher.)
About a third of the claims paid by the VCF since it
reopened in 2011 have involved cancer diagnoses; however, that
percentage is increasing. Over the past year, for example, 50
percent of claims included compensation for cancer. Using
information from the WTC Health Program and the VCF, CBO
estimates that both the number of cancer claims and the share
of total claims that involve cancer relative to noncancerous
conditions will continue to increase, driven principally by
increases in cancer incidence related to age and to the amount
of time elapsed since exposure.\13\
---------------------------------------------------------------------------
\13\CBO estimates that cancer claims will grow from about 50
percent of new claims in 2020 to over 80 percent by 2029 because
noncancerous conditions are more likely to become evident sooner--in
years closer to the terrorist attacks--and victims are more likely to
be treated earlier. Moreover, because many types of cancer have long
latencies--mesothelioma, for example, has an average latency of more
than 30 years--the incidence of those cancers will increase as those
who were exposed grow older. CBO also estimates that claims for
deceased victims will grow from about 6 percent of new claims in 2020
to 18 percent by 2029 because of the increase in mortality as the
affected population ages and as cancer incidence rises. Since 2011,
over 90 percent of awards paid to deceased claimants have involved
cancer. CBO estimates that share will continue to increase over the
2020-2029 period.
---------------------------------------------------------------------------
Over the VCF's history, about 60 percent of all awards for
cancer claims have been made to first responders, but in the
past several years the share of new cancer claims from other
survivors--who constitute the bulk of the remaining exposed
population--has risen to 50 percent. CBO expects that, over the
next 10 years, the share of cancer claims from those survivors
will continue to rise; correspondingly, CBO's projection of
future cancer rates is weighted more heavily toward its
estimate for cancer incidence in that group. Over the 2020-2029
period, CBO expects that 31,000 will develop cancer out of the
remaining population of about 265,000 in 2029.
Incidence of Noncancerous Illnesses. Using data from the
WTC Health Program about the number of people who have been
newly certified with illnesses since 2015, CBO estimates that
about 19,000 people out of the remaining population can be
expected to develop noncancerous illnesses over the next 10
years. In producing that estimate, CBO accounted for trends in
the ratio of cancer to noncancerous claims in recent years,
which show that the share of noncancerous claims is declining.
The WTC Health Program and other observers have noted that
noncancerous conditions are more likely to be identified and
treated earlier because noncancerous symptoms generally present
sooner than cancer symptoms do. Accordingly, CBO estimates that
the number of new noncancerous illnesses will decrease
gradually over time. To date, the WTC Health Program has
certified more than 40,000 people with noncancerous illnesses
(mostly aerodigestive disorders, which affect both the
respiratory and the digestive tracts). The VCF has paid claims
to more than 14,000 people for noncancerous conditions alone.
Filing a Claim With the Victim Compensation Fund. After
estimating the number of people in the exposed population who
will develop eligible health conditions, CBO estimated how many
in that group would enroll in the WTC Health Program and
receive certification that their conditions are related to the
September 11, 2001, terrorist attacks. Although enrollment in
the WTC Health Program is not a prerequisite for filing a claim
with the VCF, enrollment in that program is the primary
predictor of who will file a VCF claim. Over 85 percent of VCF
registrants have certified their conditions through that
program and over 90 percent of those enrollees have registered
with the VCF.
Currently, about 95,000 people participate in the WTC
Health Program. To arrive at an estimate of the share who will
develop health conditions and enroll in the program, CBO
estimated the proportion of the eligible population that may
have developed health conditions since 2001 and compared that
information with the number of enrollees with certified
conditions. Since the WTC Health Program began in 2011, CBO
estimates, roughly two-thirds of those who have developed
conditions have received certification--although significant
uncertainty surrounds that estimate.
If two-thirds of the people who develop eligible illnesses
go on to enroll, CBO anticipates that participation in the WTC
Health Program would grow by an average of 3,200 members (with
certified health conditions) annually over the next decade.
That pace is consistent with growth over the past five years.
Finally, to estimate how many WTC Health Program members
would submit VCF claims and receive awards, CBO used data from
the VCF's February 2019 annual report about the stages of
claim-filing activity over the program's history.\14\ CBO
estimates that, over the 2020-2029 period, nearly 33,000 people
will be certified by the WTC Health Program with eligible
health conditions, and that about 18,100 within that group--55
percent--would file claims and receive awards from the VCF.\15\
Of those claims, CBO estimates, 63 percent will be for cancer
and 37 percent will be for noncancerous conditions alone. On
average, 1,800 claims would be approved annually and the number
of awards would gradually increase over the next decade, driven
primarily by rising rates of cancer and by higher approval
rates for filed claims.
---------------------------------------------------------------------------
\14\See September 11th Victim Compensation Fund, Seventh Annual
Status Report and Third Annual Reassessment of Policies and Procedures
(February 2019), https://go.usa.gov/xygNY (PDF, 555 KB).
\15\That estimate reflects data reported by the VCF about the
percentage of WTC Health Program enrollees who register with the VCF
(90 percent), the percentage of VCF registrants who file claims (57
percent), and the percentage of filed claims that receive awards (75
percent). CBO estimates that, at each stage, the rate of advancement to
the next would rise gradually over the ensuing 10 years as a result of
greater awareness among potential claimants about the opportunity to
file a claim, increases in the number and severity of illnesses that
compel people to seek compensation, and a gradual resolution of
documentation problems that impede award approval.
---------------------------------------------------------------------------
Award Payments. To estimate future awards from the VCF, CBO
used data on the number and average amounts of awards for
different types of claims over the program's history.\16\ CBO
estimated amounts, on average, since 2017 (as shown in Table 2)
and in most cases made an upward adjustment for each type of
award over the 2020-2029 period to account for trends observed
since 2011.\17\ CBO estimates that the average amount for most
types would increase by about 0.5 percent annually.
---------------------------------------------------------------------------
\16\ In addition to accounting for differences between compensation
for cancer and noncancerous conditions, CBO's analysis accounted for
differences in the size of awards for economic and noneconomic
compensation and awards for deceased and living claimants.
\17\ Notably, CBO estimates that awards for economic losses will
decrease from 24 percent of new claims in 2020 to 20 percent in 2029 as
claimants age and leave the workforce, reducing their earnings and
benefits. As a result, CBO estimates, on average, cancerous and
noncancerous awards will be lower over the 2020-2029 period than for
earlier claims because a declining share of awards will include
compensation for economic losses.
---------------------------------------------------------------------------
In total, CBO estimates, under H.R. 1327, the VCF would pay
claims totaling $5.8 billion over the 2020-2029 period, to the
18,100 claimants who file after the date of enactment (see
Table 4).
Administrative Costs. Under current law, the VCF is
authorized to spend whatever amounts are necessary to carry out
the program. Because the legislation would extend the period of
the operation through fiscal year 2090, CBO estimates that H.R.
1327 would increase direct spending to cover continued
administrative costs.
In fiscal year 2018, the VCF spent $28 million to
compensate 172 employees, maintain the program's software
system, and provide contractor support. Because of a surge in
claims late in 2018 and early in 2019, the program is hiring 10
additional employees to process the backlog.
Under H.R. 1327, CBO expects, the VCF will operate with
about 180 employees for the next several years as the program
processes a significant backlog of claims. Its administrative
costs are estimated to range from $30 million to $33 million
each year.
Uncertainty CBO's cost estimate for H.R. 1327 reflects
considerable uncertainty in several areas:
Identifying the number of people affected by
the terrorist attacks on September 11, 2001, and the
number of people that will seek treatment and
compensation for injury or death;
Comparing incidence rates in the exposed and
unexposed populations for adverse health conditions,
especially cancer; and
Estimating both the number of people who
ultimately will be approved for compensation and the
amount of their awards.
Filing a Claim With the Victim Compensation Fund. One
difficulty is projecting the precise rate at which affected
people will seek treatment from or be monitored by the WTC
Health Program. CBO expects that many people who were harmed
will instead seek treatment from other providers or forgo
treatment of related illnesses and conditions.
Enrollment in the WTC Health Program is not a prerequisite
for filing a claim with the VCF, but more than 85 percent of
VCF registrants have received certification for their
conditions from that program; participation in the WTC Health
Program is therefore the primary predictor of VCF claim-filing
activity.
If 95 percent of the people who develop health conditions
participate in the program, compared with the two-thirds (66
percent) assumed in this estimate, the cost of the legislation
would increase by $2.6 billion over the 2020-2029 period.
Conversely, if one-third (33 percent) of that group
participates, the legislation's costs would be $2.8 billion
smaller over that period.
Cancer Incidence. It is not possible to project the degree
to which cancer incidence rates will differ among people in the
exposed and unexposed populations. There also is significant
uncertainty about latency periods between exposure and
incidence for many forms of cancer.
If average incidence rates were 30 percent higher among the
exposed population, compared with the 8 percent higher assumed
in this estimate, the legislation's cost would be $1.1 billion
higher over the 2020-2029 period. Conversely, if incidence
rates were 1 percent higher, the cost of the legislation would
be $0.3 billion lower over that period.
Combined Uncertainty Scenarios. Using both high-end
scenarios described above--95 percent participation in the WTC
Health Program and 30 percent higher cancer rates--then CBO
estimates the legislation's cost would increase by $4.1 billion
over the 2020-2029 period.
Using both low-end scenarios described above--33 percent
participation in the WTC Health Program and 1 percent higher
cancer rates--then CBO estimates the legislation's costs would
be $3 billion lower over that 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 Table 5.
TABLE 5.--CBO'S ESTIMATE OF PAY-AS-YOU-GO EFFECTS OF H.R. 1327
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
-----------------------------------------------------------------------------------------------------
2019 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 2019-2024 2019-2029
--------------------------------------------------------------------------------------------------------------------------------------------------------
Net Increase in the Deficit
Statutory Pay-As-You-Go PEffect................... 0 950 1,387 1,947 1,868 633 643 653 663 703 733 6,785 10,180
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increase in long-term deficits: CBO estimates that enacting
the H.R. 1327 would increase on-budget deficits by more than $5
billion in at least one of the four 10-year periods beginning
in 2030.
Mandates: None.
Estimate comparison: On June 11, 2019, the special master
of the VCF provided testimony to the Congress indicating that
the VCF would require $4.616 billion more than the $7.375
billion currently appropriated for the program to fully pay the
cost of all eligible claims under current law.\18\ That
estimate--totaling $11.991 billion--assumes that no more claims
would be filed after December 18, 2020, the current statutory
deadline for filing claims. The VCF has not published an
estimate of the costs to pay claims filed beyond that date
under a scenario that assumes continuation of the program.
---------------------------------------------------------------------------
\18\See the testimony of Rupa Bhattacharyya, Special Master,
September 11th Victim Compensation Fund, before the Subcommittee on the
Constitution, Civil Rights and Civil Liberties of the House Committee
on the Judiciary (June 11, 2019), https://go.usa.gov/xyrzh (PDF, 288
KB). The estimates in that testimony are based on information in
September 11th Victim Compensation Fund, Seventh Annual Status Report
and Third Annual Reassessment of Policies and Procedures (February
2019), https://go.usa.gov/xygNY (PDF, 555 KB).
---------------------------------------------------------------------------
CBO's estimates of the cost to pay claims and the
administrative costs of the program are consistent with the
VCF's estimate through December 20, 2020. CBO's analysis was
based on data provided by VCF, and CBO made similar assumptions
about the number and types of claims that would be approved for
an award up to that date. CBO's estimate of H.R. 1327 differs
from the VCF's because it also includes the estimated the costs
of continuing to pay claims beyond December 2020, over the
entire 2020-2029 period.
Estimate prepared by: Federal costs: Jon Sperl; Mandates:
Lilia Ledezma.
Estimate reviewed by: Kim Cawley, Chief, Natural and
Physical Resources Cost Estimates Unit; H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis; Theresa Gullo,
Assistant Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 1327 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
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.
1327 would reauthorize the September 11th Victim Compensation
Fund until 2090 and fully compensate claimants whose awards
were cut because of the Fund's current funding insufficiency.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1327 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.
Duplication of Federal Programs
No provision of H.R. 1327 establishes or reauthorizes a
program of the federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
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.
1327 would extend authorization of the September 11th Victim
Compensation Fund until 2090 and restore awards that were cut
because of insufficient funds.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short title. Section 1 sets forth the bill's
short title as the ``Never Forget the Heroes: Permanent
Authorization of the September 11th Victim Compensation Fund
Act.''
Section 2. September 11th Victim Compensation Fund of 2001.
Section 2(a) of the bill amends Section 410 of the Air
Transportation Safety and System Stabilization Act (``Act'').
Section 410 of that Act provides, in relevant part, that there
be a fund created in the United States Treasury called the
``Victims Compensation Fund'' into which is deposited, among
other monies, $4.6 billion to be appropriated out of any money
in the Treasury that is not otherwise appropriated for fiscal
year 2017, for the purpose of paying claims filed with the
September 11th Victim Compensation Fund between the time post-
2015 implementing regulations for were updated and 5 years
after the date of enactment of the 2015 reauthorization bill
(Dec. 18, 2020) and for which the VCF had not postmarked and
transmitted a final award determination to the claimant as of
December 18, 2015. These are referred to in the Act as ``Group
B'' claims. Section 2(a)(1) of the bill strikes the provision
appropriating $4.6 billion to pay ``Group B'' claims and
replaces it with an appropriation for ``such sums as may be
necessary for fiscal year 2019 and each fiscal year thereafter
through fiscal year 2090, to remain available through such
fiscal year.'' This provision is intended to ensure that there
are sufficient funds available to pay Group B VCF claims for
the remainder of the authorization period so as to avoid in the
future the kind of funding deficiency that the VCF is currently
facing.
Section 2(a)(2) of the bill amends Section 410(e) of the
Act, which provides that upon completion of all payments, the
(Treasury) Victims Compensation Fund shall be permanently
closed. Section 2(a)(2) of the bill strikes ``Upon completion
of all payments under this title'' and replaces it with ``On
October 1, 2090.'' This ensures that the VCF will exist long
enough to compensate victims whose 9/11-related diseases have
long latency periods and also comports the VCF's authorization
period with that of the WTC Health Program.
Section 2(b) amends Section 405(a)(3)(B) of the Act.
Section 405(a)(3)(B) provides the timeframe within which claims
may be filed with the September 11th Victim Compensation Fund.
Currently, the end date for filing claims is set at 5 years
after the date of enactment of the James Zadroga 9/11 Victim
Compensation Fund Reauthorization Act, which would be December
18, 2020. Section 2(b) strikes this end date and replaces it
with October 1, 2089, or one year before the 9/11 VCF is set to
expire under the bill.
Section 2(c) amends Section 406(d)(2) of the Act. Section
406(d)(2) currently governs Group B claims, among other things
by capping the total amount that could be spent on paying Group
B claims to the $4.6 billion that was appropriated for that
purpose, including by requiring the Special Master to develop
policies and procedures to ensure that total expenditures,
including administrative expenses, do not exceed the $4.6
billion appropriation and to prioritize claimants who are
suffering from the most debilitating physical conditions to
ensure that such claimants are not unduly burdened by such
policies and procedures. It also requires the Special Master to
conduct an annual reassessment of agency policies and
procedures to ensure the VCF's compliance with these
requirements. If, upon reassessment, such policies or
procedures do not meet these requirements, the Special Master
must take such additional actions or make such modifications as
are necessary to comply with these requirements. Section
2(c)(1) of the bill strikes the requirement of an annual
reassessment of policies and procedures and replaces it with a
requirement of a reassessment for ``not less than once every 5
years'' after December 18, 2015. Section 2(c)(2) of the bill
adds a new subsection D to the end of Section 406(d)(2). New
subsection D provides that with respect to Group B claim awards
that were subject to reductions because of insufficient funds,
the Special Master shall, in the first fiscal year when
sufficient funds become available, pay the difference between
the amount the claimant was entitled to and the amount the
claimant was actually paid. This provision is intended to
address the cuts in awards announced by the Special Master in
February 2019 due to insufficient funding for the VCF.
Section 2(d) of the bill amends Section 405(b)(7)(A) of the
Act. Section 405(b)(7)(A) imposes caps on awards for
noneconomic losses for Group B claimants. These caps are
$250,000 for noneconomic losses from any type of cancer and
$90,000 for any noneconomic losses from conditions other than
cancer. Section 2(d) of the bill adds a provision allowing the
Special Master to exceed these limitations for Group B claims
if the Special Master determines that the pain and suffering of
the claimant is so excessive as to render the amount of the
applicable limitation insufficiently compensatory.
Section 2(e) of the bill amends Section 405(b)(7)(B)(ii) of
the Act. Section 405(b)(7)(B)(ii) imposes a limitation on the
calculation of economic losses in determining the amount of an
award for economic loss. Specifically, it provides that for the
purpose of calculating each year of any lost earnings or other
employment benefits, the annual gross income of the claimant
for each year is capped at $200,000. Section 2(e) of the bill
amends this annual gross income limitation by requiring the
Special Master to adjust this $200,000 annual gross income
limitation not more than once every 5 years by the percentage
increases in the Consumer Price Index for All Urban Consumers
for the October preceding the date of adjustment to the October
that precedes 5 years before the date of the adjustment.
Changes in Existing Law Made by the Bill, as Reported
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, H.R. 1327, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
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 italic, and existing law in which no
change is proposed is shown in roman):
AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACT
* * * * * * *
TITLE IV--VICTIM COMPENSATION
* * * * * * *
SEC. 405. DETERMINATION OF ELIGIBILITY FOR COMPENSATION.
(a) Filing of Claim.--
(1) In general.--A claimant may file a claim for
compensation under this title with the Special Master.
The claim shall be on the form developed under
paragraph (2) and shall state the factual basis for
eligibility for compensation and the amount of
compensation sought.
(2) Claim form.--
(A) In general.--The Special Master shall
develop a claim form that claimants shall use
when submitting claims under paragraph (1). The
Special Master shall ensure that such form can
be filed electronically, if determined to be
practicable.
(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 crash es 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.--
(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)(1) and ending on [the date that
is 5 years after the date of enactment of the
James Zadroga 9/11 Victim Compensation Fund
Reauthorization Act] October 1, 2089.
(C) Special master determination.--
(i) In general.--For claims filed
under this title during the period
described in subparagraph (B), the
Special Master shall establish a system
for determining whether, for purposes
of this title, the claim is--
(I) a claim in Group A, as
described in clause (ii); or
(II) a claim in Group B, as
described in clause (iii).
(ii) Group a claims.--A claim under
this title is a claim in Group A if--
(I) the claim is filed under
this title during the period
described in subparagraph (B);
and
(II) on or before the day
before the date of enactment of
the James Zadroga 9/11 Victim
Compensation Fund
Reauthorization Act, the
Special Master postmarks and
transmits a final award
determination to the claimant
filing such claim.
(iii) Group b claims.--A claim under
this title is a claim in Group B if the
claim--
(I) is filed under this title
during the period described in
subparagraph (B); and
(II) is not a claim described
in clause (ii).
(iv) Definition of final award
determination.--For purposes of this
subparagraph, the term ``final award
determination'' means a letter from the
Special Master indicating the total
amount of compensation to which a
claimant is entitled for a claim under
this title without regard to the
limitation under the second sentence of
section 406(d)(1), as such section was
in effect on the day before the date of
enactment of the James Zadroga 9/11
Victim Compensation Fund
Reauthorization Act.
(b) Review and Determination.--
(1) Review.--The Special Master shall review a claim
submitted under subsection (a) and determine--
(A) whether the claimant is an eligible
individual under subsection (c);
(B) with respect to a claimant determined to
be an eligible individual--
(i) the extent of the harm to the
claimant, including any economic and
noneconomic losses; and
(ii) subject to paragraph (7), the
amount of compensation to which the
claimant is entitled based on the harm
to the claimant, the facts of the
claim, and the individual circumstances
of the claimant.
(2) Negligence.--With respect to a claimant, the
Special Master shall not consider negligence or any
other theory of liability.
(3) Determination.--Not later than 120 days after
that date on which a claim is filed under subsection
(a), the Special Master shall complete a review, make a
determination, and provide written notice to the
claimant, with respect to the matters that were the
subject of the claim under review. Such a determination
shall be final and not subject to judicial review.
(4) Rights of claimant.--A claimant in a review under
paragraph (1) shall have--
(A) the right to be represented by an
attorney;
(B) the right to present evidence, including
the presentation of witnesses and documents;
and
(C) any other due process rights determined
appropriate by the Special Master.
(5) No punitive damages.--The Special Master may not
include amounts for punitive damages in any
compensation paid under a claim under this title.
(6) Collateral compensation.--
(A) In general.--The Special Master shall
reduce the amount of compensation determined
under paragraph (1)(B)(ii) by the amount of the
collateral source compensation the claimant has
received or is entitled to receive as a result
of the terrorist-related aircraft crashes of
September 11, 2001.
(B) Group b claims.--Notwithstanding any
other provision of this title, in the case of a
claim in Group B as described in subsection
(a)(3)(C)(iii), a claimant filing such claim
shall receive an amount of compensation under
this title for such claim that is not greater
than the amount determined under paragraph
(1)(B)(ii) less the amount of any collateral
source compensation that such claimant has
received or is entitled to receive for such
claim as a result of the terrorist-related
aircraft crashes of September 11, 2001.
(7) Limitations for group b claims.--
(A) Noneconomic losses.-- [With respect to]
(i) In general._Except as provided in
clause (ii), with respect to a claim
in Group B as described in subsection
(a)(3)(C)(iii), the total amount of
compensation to which a claimant filing
such claim is entitled to receive for
such claim under this title on account
of any noneconomic loss--
[(i)] (I) that results from
any type of cancer shall not
exceed $250,000; and
[(ii)] (II) that does not
result from any type of cancer
shall not exceed $90,000.
(ii) Exception.--The Special Master
may exceed the applicable limitation
under clause (i) for a claim in Group B
as described in subsection
(a)(3)(C)(iii) if the Special Master
determines that the pain and suffering
of the claimant is so excessive as to
render the amount of the applicable
limitation under clause (i)
insufficiently compensatory.
(B) Determination of economic loss.--
(i) In general.--Subject to the
limitation described in clause (ii) and
with respect to a claim in Group B as
described in subsection (a)(3)(C)(iii),
the Special Master shall, for purposes
of calculating the amount of
compensation to which a claimant is
entitled under this title for such
claim on account of any economic loss,
determine the loss of earnings or other
benefits related to employment by using
the applicable methodology described in
section 104.43 or 104.45 of title 28,
Code of Federal Regulations, as such
Code was in effect on the day before
the date of enactment of the James
Zadroga 9/11 Victim Compensation Fund
Reauthorization Act.
(ii) Annual gross income
limitation.-- [In considering]
(I) In general._Subject to
subclause (II), in considering
annual gross income under
clause (i) for the purposes
described in such clause, the
Special Master shall, for each
year of any loss of earnings or
other benefits related to
employment, limit the annual
gross income of the claimant
(or decedent in the case of a
personal representative) for
each such year to an amount
that is not greater than
$200,000.
(II) Adjustment.--The Special
Master shall adjust the amount
of the limitation under
subclause (I) not more
frequently than once every 5
years to reflect the percentage
by which the Consumer Price
Index for All Urban Consumers
published by the Department of
Labor for the month of October
immediately preceding the date
of adjustment exceeds the
Consumer Price Index for All
Urban Consumers published by
the Department of Labor for the
month of October that
immediately precedes the date
that is 5 years before the date
of adjustment.
(C) Gross income defined.--For purposes of
this paragraph, the term ``gross income'' has
the meaning given such term in section 61 of
the Internal Revenue Code of 1986.
(c) Eligibility.--
(1) In general.--A claimant shall be determined to be
an eligible individual for purposes of this subsection
if the Special Master determines that such claimant--
(A) is an individual described in paragraph
(2); and
(B) meets the requirements of paragraph (3).
(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), 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;
(B) an individual who was a member of the
flight crew or a passenger on American Airlines
flight 11 or 77 or United Airlines flight 93 or
175, except that an individual identified by
the Attorney General to have been a participant
or conspirator in the terrorist-related
aircraft crashes of September 11, 2001, or a
representative of such individual shall not be
eligible to receive compensation under this
title; or
(C) in the case of a decedent who is an
individual described in subparagraph (A) or
(B), the personal representative of the
decedent who files a claim on behalf of the
decedent.
(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.--Except with respect
to claims in Group B as described in
subsection (a)(3)(C)(iii), 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(b)(1).
(iv) Group b claims.--
(I) In general.--Subject to
subclause (II), an individual
filing a claim in Group B as
described in subsection
(a)(3)(C)(iii) may be eligible
for compensation under this
title only if the Special
Master, with assistance from
the WTC Program Administrator
as necessary, determines based
on the evidence presented that
the individual has a WTC-
related physical health
condition, as defined by
section 402 of this Act.
(II) Personal
representatives.--An individual
filing a claim in Group B, as
described in subsection
(a)(3)(C)(iii), who is a
personal representative
described in paragraph (2)(C)
may be eligible for
compensation under this title
only if the Special Master,
with assistance from the WTC
Program Administrator as
necessary, determines based on
the evidence presented that the
applicable decedent suffered
from a condition that was, or
would have been determined to
be, a WTC-related physical
health condition, as defined by
section 402 of this Act.
(B) Single claim.--Not more than one claim
may be submitted under this title by an
individual or on behalf of a deceased
individual.
(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--
(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)(1).
(iii) Settled actions.--In the case
of an individual who settled a civil
action described in clause (i), such
individual may not submit a claim under
this title unless such action was
commenced after December 22, 2003, and
a release of all claims in such action
was tendered prior to the date on which
the James Zadroga 9/11 Health and
Compensation Act of 2010 was enacted.
SEC. 406. PAYMENTS TO ELIGIBLE INDIVIDUALS.
(a) In General.--Subject to the limitations under 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.--For the purpose of providing
compensation for claims in Group A as described in section
405(a)(3)(C)(ii), this title constitutes budget authority in
advance of appropriations Acts in the amounts provided under
subsection (d)(1) and represents the obligation of the Federal
Government to provide for the payment of amounts for
compensation under this title subject to the limitations under
subsection (d).
(c) Additional Funding.--
(1) In general.--The Attorney General is authorized
to accept such amounts as may be contributed by
individuals, business concerns, or other entities to
carry out this title, under such terms and conditions
as the Attorney General may impose.
(2) Use of separate account.--In making payments
under this section, amounts contained in any account
containing funds provided under paragraph (1) shall be
used prior to using appropriated amounts.
(d) Limitations.--
(1) Group a claims.--
(A) In general.--The total amount of Federal
funds paid for compensation under this title,
with respect to claims in Group A as described
in section 405(a)(3)(C)(ii), shall not exceed
$2,775,000,000.
(B) Remainder of claim amounts.--In the case
of a claim in Group A as described in section
405(a)(3)(C)(ii) and for which the Special
Master has ratably reduced the amount of
compensation for such claim pursuant to
paragraph (2) of this subsection, as this
subsection was in effect on the day before the
date of enactment of the James Zadroga 9/11
Victim Compensation Fund Reauthorization Act,
the Special Master shall, as soon as
practicable after the date of enactment of such
Act, authorize payment of the amount of
compensation that is equal to the difference
between--
(i) the amount of compensation that
the claimant would have been paid under
this title for such claim without
regard to the limitation under the
second sentence of paragraph (1) of
this subsection, as this subsection was
in effect on the day before the date of
enactment of the James Zadroga 9/11
Victim Compensation Fund
Reauthorization Act; and
(ii) the amount of compensation the
claimant was paid under this title for
such claim prior to the date of
enactment of such Act.
(2) Group b claims.--
(A) In general.--The total amount of Federal
funds paid for compensation under this title,
with respect to claims in Group B as described
in section 405(a)(3)(C)(iii), shall not exceed
the amount of funds deposited into the Victims
Compensation Fund under section 410.
(B) Payment system.--The Special Master shall
establish a system for providing compensation
for claims in Group B as described in section
405(a)(3)(C)(iii) in accordance with this
subsection and section 405(b)(7).
(C) Development of agency policies and
procedures.--
(i) Development.--
(I) In general.--Not later
than 30 days after the date of
enactment of the James Zadroga
9/11 Victim Compensation Fund
Reauthorization Act, the
Special Master shall develop
agency policies and procedures
that meet the requirements
under subclauses (II) and (III)
for providing compensation for
claims in Group B as described
in section 405(a)(3)(C)(iii),
including policies and
procedures for presumptive
award schedules, administrative
expenses, and related internal
memoranda.
(II) Limitation.--The
policies and procedures
developed under subclause (I)
shall ensure that total
expenditures, including
administrative expenses, in
providing compensation for
claims in Group B, as described
in section 405(a)(3)(C)(iii),
do not exceed the amount of
funds deposited into the
Victims Compensation Fund under
section 410.
(III) Prioritization.--The
policies and procedures
developed under subclause (I)
shall prioritize claims for
claimants who are determined by
the Special Master as suffering
from the most debilitating
physical conditions to ensure,
for purposes of equity, that
such claimants are not unduly
burdened by such policies or
procedures.
(ii) Reassessment.--Beginning 1 year
after the date of enactment of the
James Zadroga 9/11 Victim Compensation
Fund Reauthorization Act, and [each
year thereafter] not less than once
every 5 years thereafter until the
Victims Compensation Fund is
permanently closed under section
410(e), the Special Master shall
conduct a reassessment of the agency
policies and procedures developed under
clause (i) to ensure that such policies
and procedures continue to satisfy the
requirements under subclauses (II) and
(III) of such clause. If the Special
Master determines, upon reassessment,
that such agency policies or procedures
do not achieve the requirements of such
subclauses, the Special Master shall
take additional actions or make such
modifications as necessary to achieve
such requirements.
(D) Compensation reduced by special master
due to insufficient funding.--
(i) In general.--With respect to any
claim in Group B as described in
section 405(a)(3)(C)(iii) for which,
prior to the date of enactment of this
subparagraph, the Special Master had
advised the claimant that the amount of
compensation for such claim has been
reduced on the basis of insufficient
funding, the Special Master shall, in
the first fiscal year following such
date of enactment that sufficient
funding becomes available under this
title, pay to the claimant an amount
that is, as determined by the Special
Master, equal to the difference
between--
(I) the amount the claimant
would have been paid under this
title if sufficient funding was
available to the Special Master
at the time the Special Master
determined the amount due the
claimant under this title; and
(II) the amount the claimant
was paid under this title.
(ii) Definitions.--For purposes of
this subparagraph:
(I) Insufficient funding.--
The term ``insufficient
funding'' means funding--
(aa) that is
available to the
Special Master under
section 410(c), as in
effect on the day
before the date of
enactment of this
subparagraph, for
purposes of
compensating claims in
Group B as described in
section
405(a)(3)(C)(iii); and
(bb) that the Special
Master determines is
insufficient for
purposes of
compensating all such
claims and complying
with subparagraph (A).
(II) Sufficient funding.--The
term ``sufficient funding''
means funding--
(aa) made available
to the Special Master
for purposes of
compensating claims in
Group B as described in
section
405(a)(3)(C)(iii)
through an Act of
Congress that is
enacted after the date
on which the amount of
the claim described in
clause (i) has been
reduced; and
(bb) that the Special
Master determines is
sufficient for purposes
of compensating all
claims in such Group B.
(e) Attorney Fees.--
(1) In general.--Notwithstanding any contract, 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) Limitation.--
(A) In general.--Except as provided in
subparagraph (B), in the case of an individual
who was charged a legal fee in connection with
the settlement of a civil action described in
section 405(c)(3)(C)(iii), the representative
of the individual may not charge any amount for
compensation for services rendered in
connection with a claim filed under this title.
(B) Exception.--If the legal fee charged in
connection with the settlement of a civil
action described in section 405(c)(3)(C)(iii)
of an individual is less than 10 percent of the
aggregate amount of compensation awarded to
such individual through such settlement, the
representative of such individual may charge an
amount for compensation for services rendered
to the extent that such amount charged is not
more than--
(i) 10 percent of such aggregate
amount through the settlement, minus
(ii) the total amount of all legal
fees charged for services rendered in
connection with such settlement.
(3) Discretion to lower fee.--In the event that the
special master finds that the fee limit set by
paragraph (1) or (2) provides excessive compensation
for services rendered in connection with such claim,
the Special Master may, in the discretion of the
Special Master, award as reasonable compensation for
services rendered an amount lesser than that permitted
for in paragraph (1).
* * * * * * *
SEC. 410. VICTIMS COMPENSATION FUND.
(a) In General.--There is established in the Treasury of the
United States a fund to be known as the ``Victims Compensation
Fund'', consisting of amounts deposited into such fund under
subsection (b).
(b) Deposits Into Fund.--There shall be deposited into the
Victims Compensation Fund each of the following:
(1) Effective on the day after the date on which all
claimants who file a claim in Group A, as described in
section 405(a)(3)(C)(ii), have received the full
compensation due such claimants under this title for
such claim, any amounts remaining from the total amount
made available under section 406 to compensate claims
in Group A as described in section 405(a)(3)(C)(ii).
(2) The amount appropriated under subsection (c).
(c) Appropriations.--There is appropriated, out of any money
in the Treasury not otherwise appropriated, [$4,600,000,000 for
fiscal year 2017, to remain available until expended] such sums
as may be necessary for fiscal year 2019 and each fiscal year
thereafter through fiscal year 2090, to remain available
through such fiscal year , to provide compensation for claims
in Group B as described in section 405(a)(3)(C)(iii).
(d) Availability of Funds.--Amounts deposited into the
Victims Compensation Fund shall be available, without further
appropriation, to the Special Master to provide compensation
for claims in Group B as described in section
405(a)(3)(C)(iii).
(e) Termination.-- [Upon completion of all payments under
this title] On October 1, 2090 , the Victims Compensation Fund
shall be permanently closed.
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[all]