[Federal Register Volume 80, Number 176 (Friday, September 11, 2015)]
[Proposed Rules]
[Pages 54746-54760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-22599]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

42 CFR Part 88

[Docket No. CDC-2015-0063, NIOSH-287]
RIN 0920-AA61


World Trade Center Health Program; Addition of New-Onset Chronic 
Obstructive Pulmonary Disease and Acute Traumatic Injury to the List of 
WTC-Related Health Conditions

AGENCY: Centers for Disease Control and Prevention, HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The World Trade Center (WTC) Health Program, at the direction 
of the Administrator, conducted a review of published studies regarding 
potential evidence of chronic obstructive pulmonary disease (COPD) and 
acute traumatic injury among individuals who were responders to or 
survivors of the September 11, 2001, terrorist attacks. The 
Administrator of the WTC Health Program found that

[[Page 54747]]

these studies provided substantial support for a causal relationship 
between the health conditions and 9/11 exposures. As a result, the 
Administrator has determined to publish a proposed rule to add new-
onset COPD and to add acute traumatic injury to the List of WTC-Related 
Health Conditions eligible for treatment coverage in the WTC Health 
Program.

DATES: Comments must be received by October 26, 2015.

ADDRESSES: Written Comments: You may submit comments by any of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: NIOSH Docket Office, 1090 Tusculum Avenue, MS C-34, 
Cincinnati, OH 45226-1998.
    Instructions: All submissions received must include the agency name 
(Centers for Disease Control and Prevention, HHS) and docket number 
(CDC-2015-0063) or Regulation Identifier Number (0920-AA61) for this 
rulemaking. All relevant comments, including any personal information 
provided, will be posted without change to http://www.regulations.gov. 
For detailed instructions on submitting public comments, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: For access to the docket to read background documents, go 
to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rachel Weiss, Program Analyst, 1090 
Tusculum Ave, MS: C-46, Cincinnati, OH 45226; telephone (855)818-1629 
(this is a toll-free number); email [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    A. Purpose of Regulatory Action
    B. Summary of Major Provisions
    C. Costs and Benefits
II. Public Participation
III. Background
    A. WTC Health Program Statutory Authority
    B. Methods Used by the Administrator to Determine Whether to Add 
Non-Cancer Health Conditions to the List of WTC-Related Health 
Conditions
IV. COPD
    A. CCE and Data Center Request to Consider Adding New-Onset COPD
    B. Literature Review
    C. Administrator's Determination Concerning New-Onset COPD
V. Acute Traumatic Injury
    A. CCE and Data Center Request to Consider Adding Acute 
Traumatic Injury
    B. Literature Review
    C. Administrator's Determination Concerning Acute Traumatic 
Injury
VI. Effects of Rulemaking on Federal Agencies
VII. Summary of Proposed Rule
VIII. Regulatory Assessment Requirements
    A. Executive Order 12866 and Executive Order 13563
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates Reform Act of 1995
    F. Executive Order 12988 (Civil Justice)
    G. Executive Order 13132 (Federalism)
    H. Executive Order 13045 (Protection of Children from 
Environmental Health Risks and Safety Risks)
    I. Executive Order 13211 (Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use)
    J. Plain Writing Act of 2010

I. Executive Summary

A. Purpose of Regulatory Action

    This rulemaking is being conducted in order to add new-onset COPD 
and acute traumatic injury to the List of WTC-Related Health Conditions 
(List). Following requests by the directors of the WTC Health Program 
Clinical Centers of Excellence (CCE) and Data Centers to the WTC Health 
Program to consider adding the two conditions,\1\ the Administrator 
conducted literature reviews regarding COPD and acute traumatic injury 
among 9/11 responders and survivors. Based on the findings of those 
reviews, he determined that the evidence for causal relationships 
between 9/11 exposures and COPD and acute traumatic injury, 
respectively, provides bases for the addition of both health 
conditions. The Administrator proposes adding new-onset COPD and acute 
traumatic injury to the List.
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    \1\ Crane M, Lucchini R, Moline J, Prezant D, Kelly K, Udasin I, 
Luft B, Harrison D, Reibman J, Markowitz S [2014]. Letter from CCE 
and Data Center Directors to Dori Reissman and John Halpin, WTC 
Health Program regarding ``Musculoskeletal Conditions;'' and Crane 
M, Lucchini R, Moline J, Prezant D, Kelly K, Udasin I, Luft B, 
Harrison D, and Reibman J [2014]. Letter from CCE and Data Center 
Directors to Dori Reissman and John Halpin, WTC Health Program 
regarding ``Rationale for the continued certification of COPD as a 
World Trade Center related and covered condition.'' These letters 
are included in the docket for this rulemaking.
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B. Summary of Major Provisions

    This rule proposes the addition of new-onset COPD and acute 
traumatic injury to the List of WTC-Related Health Conditions in 42 CFR 
88.1. As a result, these conditions will be eligible for treatment and 
monitoring coverage by the WTC Health Program.

C. Costs and Benefits

    The proposed addition of new-onset COPD and acute traumatic injury 
by this rulemaking is estimated to cost the WTC Health Program between 
$5,124,477 and $9,350,966 in 2015 and 2016. All of the costs to the WTC 
Health Program are transfers. Benefits to current and future WTC Health 
Program members may include improved access to care and better 
treatment outcomes than in the absence of Program coverage.

II. Public Participation

    Interested persons or organizations are invited to participate in 
this rulemaking by submitting written views, opinions, recommendations, 
and/or data. Comments are invited on any topic related to this proposed 
rule. The Administrator invites comments specifically on the following 
questions related to this rulemaking:
    1. Is September 11, 2003 an appropriate deadline by which an 
individual must have received initial medical treatment for an acute 
traumatic injury?
    2. Is there evidence of acute traumatic injuries that occurred as a 
result of the September 11, 2001, terrorist attacks that would not be 
covered by the proposed definition? What are the types of long-term 
consequences or medically associated health conditions that result from 
the treatment or progression of acute traumatic injuries like those 
sustained on or after September 11, 2001?
    3. Are data available on the chronic care needs of individuals who 
suffered acute traumatic injuries during the September 11, 2001, 
terrorist attacks, and its aftermath that the Administrator can use to 
estimate the number of current and future WTC Health Program members 
who may seek certification of WTC-related acute traumatic injuries as 
well as treatment costs?
    4. Are data available on the prevalence and cost estimates for new-
onset COPD?
    Comments received, including attachments and other supporting 
materials, are part of the public record and subject to public 
disclosure. Do not include any information in your comment or 
supporting materials that you consider confidential or inappropriate 
for public disclosure.
    Comments submitted electronically or by mail should be titled 
``Docket No. CDC-2015-0063'' and should identify the author(s) and 
contact information in case clarification is needed. Electronic and 
written comments can be submitted to the addresses provided in the 
ADDRESSES section, above. All communications received on or before the 
closing date for comments will be fully considered by the Administrator 
of the WTC Health Program.

[[Page 54748]]

    The Administrator has determined that good cause exists to extend 
the traditional 30-day comment period to 45 days. The comment period is 
extended to provide interested parties, including peer-reviewers, 
adequate time to review the proposed rule and supporting scientific 
literature and to submit written comments to the docket.

III. Background

A. WTC Health Program Statutory Authority

    Title I of the James Zadroga 9/11 Health and Compensation Act of 
2010 (Pub. L. 111-347), amended the Public Health Service Act (PHS Act) 
to add Title XXXIII,\2\ establishing the WTC Health Program within the 
Department of Health and Human Services (HHS). The WTC Health Program 
provides medical monitoring and treatment benefits to eligible 
firefighters and related personnel, law enforcement officers, and 
rescue, recovery, and cleanup workers who responded to the September 
11, 2001, terrorist attacks in New York City, at the Pentagon, and in 
Shanksville, Pennsylvania (responders), and to eligible persons who 
were present in the dust or dust cloud on September 11, 2001 or who 
worked, resided, or attended school, childcare, or adult daycare in the 
New York City disaster area (survivors).
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    \2\ Title XXXIII of the PHS Act is codified at 42 U.S.C. 300mm 
to 300mm-61. Those portions of the Zadroga Act found in Titles II 
and III of Public Law 111-347 do not pertain to the WTC Health 
Program and are codified elsewhere.
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    All references to the Administrator of the WTC Health Program 
(Administrator) in this notice mean the Director of the National 
Institute for Occupational Safety and Health (NIOSH) or his or her 
designee. Section 3312(a)(6) of the PHS Act requires the Administrator 
to conduct rulemaking to propose the addition of a health condition to 
the List of WTC-Related Health Conditions (List) codified in 42 CFR 
88.1.

B. Methods Used by the Administrator to Determine Whether to Add Non-
Cancer Health Conditions to the List of WTC-Related Health Conditions

    Consideration of an addition to the List of WTC-Related Health 
Conditions (List) may be initiated at the Administrator's discretion 
\3\ or following receipt of a petition by an interested party.\4\ Under 
42 CFR 88.17, the Administrator has established a process by which 
health conditions may be considered for addition to the List of WTC-
Related Health Conditions in Sec.  88.1. Pursuant to sec. 3312(a)(6)(D) 
of Title XXXIII of the PHS Act, the Administrator is required to 
publish a notice of proposed rulemaking and allow interested parties to 
comment on the proposed rule.
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    \3\ PHS Act, sec. 3312(a)(6)(A); 42 CFR 88.17(b).
    \4\ PHS Act, sec. 3312(a)(6)(B); 42 CFR 88.17(a).
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    The Administrator has established a methodology for evaluating 
whether to add non-cancer health conditions to the List of WTC-Related 
Health Conditions; this methodology is published online in the Policies 
and Procedures section of the WTC Health Program Web site.\5\ The 
Administrator will direct the WTC Health Program Associate Director for 
Science (ADS) to conduct a review of the scientific literature to 
determine if the available scientific information has the potential to 
provide a basis for a decision on whether to add the condition to the 
List. The literature review will include published, peer-reviewed 
direct observational and/or epidemiological studies about the health 
condition among 9/11-exposed populations. The studies will be reviewed 
for their relevance, quantity, and quality to provide a basis for 
deciding whether to propose adding the health condition to the List. 
Where the available evidence has the potential to provide a basis for a 
decision, the ADS will further assess the scientific and medical 
evidence to determine whether a causal relationship between 9/11 
exposures and the health condition is supported. A health condition may 
be added to the List if published, peer-reviewed direct observational 
or epidemiologic studies provide substantial support \6\ for a causal 
relationship between 9/11 exposures and the health condition in 9/11-
exposed populations. If only epidemiologic studies are available and 
they provide only modest support \7\ for a causal relationship between 
9/11 exposures and the health condition, the Administrator may then 
evaluate additional published, peer-reviewed epidemiologic studies, 
conducted among non-9/11-exposed populations, evaluating associations 
between the health condition of interest and 9/11 agents.\8\ If that 
additional assessment establishes substantial support for a causal 
relationship between a 9/11 agent or agents and the health condition, 
the health condition may be added to the List.
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    \5\ Howard J, Administrator of the WTC Health Program. Policy 
and procedures for adding non-cancer conditions to the List of WTC-
Related Health Conditions. October 21, 2014. http://www.cdc.gov/wtc/pdfs/WTCHP_PP_Adding_NonCancers_21_Oct_2014.pdf.
    \6\ The substantial evidence standard is met when the Program 
assesses all of the available, relevant information and determines 
with high confidence that the evidence supports its findings 
regarding a causal association between the 9/11 exposure(s) and the 
health condition.
    \7\ The modest evidence standard is met when the Program 
assesses all of the available, relevant information and determines 
with moderate confidence that the evidence supports its findings 
regarding a causal association between the 9/11 exposure(s) and the 
health condition.
    \8\ 9/11 agents are chemical, physical, biological, or other 
agents or hazards reported in a published, peer-reviewed exposure 
assessment study of responders or survivors who were present in the 
New York City disaster area, or at the Pentagon site, or the 
Shanksville, Pennsylvania site as those locations are defined in 42 
CFR 88.1.
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IV. COPD

A. CCE and Data Center Request to Consider Adding New-Onset COPD

    On May 13, 2014, the Administrator received a letter from the 
directors of the WTC Health Program Clinical Centers of Excellence 
(CCEs) and Data Centers, asking that the Administrator consider all 
requests for certification of COPD.\9\ The Zadroga Act and WTC Health 
Program regulations identify ``WTC-exacerbated chronic obstructive 
pulmonary disease (COPD)'' as a covered health condition.\10\ However, 
the CCE and Data Center directors requested that the Administrator 
determine that COPD is a certifiable WTC condition, regardless of the 
date of onset.\11\ In order to certify all cases of COPD, including 
cases diagnosed after the September 11, 2001, terrorist attacks, new-
onset COPD would need to be added to the List of WTC-Related Health 
Conditions. The Administrator directed the ADS to initiate a review of 
research regarding COPD in 9/11-exposed populations in order to 
determine whether there was support for such an addition.
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    \9\ See: Crane M, Lucchini R, Moline J, Prezant D, Kelly K, 
Udasin I, Luft B, Harrison D, Reibman J [2014]. Rationale for the 
continued certification of COPD as a World Trade Center related and 
covered condition. Letter from WTC Health Program Data Center and 
Clinical Centers of Excellence Directors to Drs. Dori Reissman and 
John Halpin, WTC Health Program. This letter is included in the 
docket for this rulemaking.
    \10\ PHS Act, sec. 3312(a)(3)(A)(v); 42 CFR 88.1.
    \11\ COPD letter from WTC Health Program CCE and Data Center 
Directors to Drs. Dori Reissman and John Halpin, WTC Health Program 
at 8.
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B. Literature Review

    In accordance with the established methodology for the addition of 
non-cancers to the List, the Administrator charged the ADS with 
conducting a review of the relevant, peer-reviewed, published studies 
of 9/11-exposed populations.
    Because definitions of COPD vary among authorities, the ADS first 
had to identify the best definition for the purposes of the WTC Health 
Program.

[[Page 54749]]

The ADS looked to the Global Initiative for Chronic Obstructive Lung 
Disease (GOLD), a collaboration between the National Heart, Lung, and 
Blood Institute of the National Institutes of Health and the World 
Health Organization as a point of reference. GOLD defines COPD as 
persistent airflow limitation that is usually progressive and 
associated with an enhanced chronic inflammatory response in the 
airways and the lung to noxious particles or gases.\12\ COPD is an 
umbrella term that encompasses those pulmonary conditions exhibiting 
chronic inflammation of the airways, lung tissue, and pulmonary blood 
vessels and persistent airflow limitation: A combination of large and 
small airways disease (obstructive chronic bronchitis \13\ and 
obstructive bronchiolitis, respectively) and parenchymal destruction 
(emphysema).\14\ According to GOLD, the three principal symptoms of 
COPD are dyspnea (shortness of breath), chronic cough, and sputum 
production; the most common early symptom is dyspnea on exertion (DOE). 
COPD should always be considered when these lower respiratory symptoms 
and history of exposure to risk factors for the disease are present. 
Because many of the symptoms of COPD are similar to asthma symptoms, 
both conditions are classified as obstructive airways diseases (OAD). 
The airway obstruction in asthma is usually reversible after 
bronchodilator therapy, whereas the obstruction in COPD is poorly-
reversible or irreversible.\15\ While asthma is not included under the 
term COPD, people with asthma may develop COPD over time.\16\
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    \12\ Global Initiative for Chronic Obstructive Lung Disease 
(GOLD), Global strategy for the diagnosis, management, and 
prevention of chronic obstructive pulmonary disease, updated 2014. 
http://www.goldcopd.org/uploads/users/files/GOLD_Report_2014_Jan23.pdf.
    \13\ Chronic bronchitis is defined by the presence of a 
productive cough of more than 3 months' duration for more than two 
successive years. It becomes obstructive chronic bronchitis if 
spirometric evidence of airflow obstruction develops. See: Chronic 
Obstructive Pulmonary Disease (COPD) [2014]. In R.S. Porter et al. 
(Eds.), The Merck manual of diagnosis and therapy. http://www.merckmanuals.com/professional/pulmonary_disorders/chronic_obstructive_pulmonary_disease_and_related_disorders/chronic_obstructive_pulmonary_disease_copd.html.
    \14\ Emphysema is destruction of lung parenchyma (the portion of 
the lung involved in gas transfer, including the alveoli, alveolar 
ducts and respiratory bronchioles) leading to loss of elastic recoil 
and loss of alveolar septa and radial airway traction, which 
increases the tendency for airway collapse. Lung hyperinflation, 
airflow limitation, and air trapping are present. See: Chronic 
Obstructive Pulmonary Disease (COPD) [2014]. In R.S. Porter et al. 
(Eds.), The Merck manual of diagnosis and therapy. http://www.merckmanuals.com/professional/pulmonary_disorders/chronic_obstructive_pulmonary_disease_and_related_disorders/chronic_obstructive_pulmonary_disease_copd.html.
    \15\ American Thoracic Society [1987]. Standards for the 
diagnosis and care of patients with chronic obstructive pulmonary 
disease (COPD) and asthma. Official statement of the American 
Thoracic Society was adopted by the Board of Directors, November 
1986. Am Rev Respir Dis. 136(1):225-244.
    \16\ Global Initiative for Asthma [2015]. Global strategy for 
asthma management and prevention; updated 2015. http://www.ginasthma.org/local/uploads/files/GINA_Report_2015.pdf.
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    Diagnosis of COPD requires the use of a spirometry test, which 
measures how much and how quickly an individual inhales and exhales air 
from his or her lungs. The diagnosis of COPD is confirmed by a 
spirometry test demonstrating poorly-reversible or irreversible airways 
obstruction (i.e., the proportion of vital capacity that an individual 
is able to expire in the first second of expiration [FEV1/FVC or FEV1%] 
is below 70 percent) after use of a bronchodilator. Although spirometry 
is the standard diagnostic test for COPD, in some circumstances, 
impulse oscillometry (IOS) can be complementary to spirometry, 
especially in patients at advanced age and with physical or mental 
disorders who cannot be diagnosed through spirometry. IOS assesses 
airway resistance and frequency dependence of resistance (FDR). FDR 
provides a measure of nonuniformity of airflow distribution, which may 
reflect regional functional abnormalities in the distal airways not 
captured by the spirometry test.
    In accordance with the GOLD definition, described above, the ADS 
initiated a literature search for ``chronic obstructive pulmonary 
disease,'' ``chronic bronchitis,'' ``pulmonary emphysema,'' ``pulmonary 
function decline,'' ``respiratory insufficiency,'' ``airways 
obstruction,'' and ``airflow limitation.'' \17\ The literature search 
yielded 108 study citations; the associated study abstracts were 
reviewed for relevance to 9/11-exposed populations.\18\ Of the 108 
citations identified, 36 were determined to be relevant epidemiologic 
studies of 9/11-exposed populations. Relevant papers were then further 
reviewed for their quality and potential to provide a basis for 
deciding whether to propose adding the health condition to the List of 
WTC-Related Health Conditions. Only papers that reported post-9/11 
lower respiratory symptomatology and objective measurements of airways 
obstruction, such as pre- and post-9/11 spirometry with bronchodilator 
administration or IOS, were found to exhibit potential support for an 
addition recommendation. Quality was assessed by the presence or 
absence of major limitations, such as small size or poor comparability 
of study groups; use of unreliable or invalid measurement instruments; 
and if little or no attention was given to key confounders which would 
call into question the validity of the study results. Based on these 
criteria, the ADS found six relevant papers which exhibited potential 
to provide a basis for a decision regarding whether to propose the 
addition of new-onset COPD to the List. The six papers are summarized 
below.
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    \17\ Databases searched include: PubMed, Embase, CINAHL, Web of 
Science, Health & Safety Science Abstracts, and Toxline.
    \18\ Only epidemiologic studies of 9/11-exposed populations were 
considered to be relevant. Case series and review papers were not 
found to be relevant.
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    Weiden et al. [2010] \19\ sought to determine the pathophysiologic 
basis for observed reductions in lung function among 1,720 Fire 
Department of New York (FDNY) rescue workers (firefighters and 
emergency medical service personnel) who presented for pulmonary 
evaluation between September 12, 2001 and March 10, 2008. Exposure 
intensity was categorized based on first arrival time at the WTC site 
as follows: High exposure if they arrived during the morning of 
September 11, 2001, intermediate exposure if they arrived after the 
morning of September 11, 2001, but within the first 2 days, and low 
exposure if they arrived between days 3 and 14. Pre-9/11 spirometry 
results were available for 92 percent of participants. Researchers 
obtained 919 full pulmonary function tests (bronchodilator response, 
lung volumes, diffusing capacity); 1,219 methacholine challenge tests 
to screen for asthma; and 982 high-resolution computed tomography 
(HRCT) scans, allowing them to report correlations between physiologic 
and radiographic measures. All physiologic tests pointed to airway 
obstruction with air trapping (demonstrated by the increase in residual 
volume) which correlated with the decline in FEV1 post-9/11, 
bronchodilator responsiveness, and hyperreactivity. HRCT findings of 
bronchial wall thickening (which reflects proximal airway inflammation 
and/or remodeling) and emphysema were reported in 26 percent and 12 
percent of the participants, respectively.

[[Page 54750]]

Importantly, airway abnormalities on CT scans also correlated with 
physiologic measures. The authors concluded that airways injury and 
obstruction were the predominant pathophysiologic characteristics among 
study participants.
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    \19\ Weiden MD, Ferrier N, Nolan A, Rom WN, Comfort A, Gustave 
J, Zeig-Owens R, Zheng S, Goldring RM, Berger KI, Cosenza K, Lee R, 
Webber MP, Kelly KJ, Aldrich TK, Prezant D [2010]. Obstructive 
airways disease with air trapping among firefighters exposed to 
World Trade Center dust. Chest. 137(3):566-574.
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    Aldrich et al. [2010] \20\ evaluated the long-term effects of 
exposure to WTC dust on FDNY members who responded to the September 11, 
2001, terrorist attacks. The authors analyzed the pulmonary function 
(FEV1) of both active and retired FDNY rescue workers on the basis of 
spirometry routinely performed at intervals of 12 to 18 months from 
March 12, 2000 to September 11, 2008. The authors observed a large 
decline in FEV1 values at 6 months and 12 months after September 11, 
2001, especially among the firefighters with the heaviest dust exposure 
(those arriving at the WTC site on the morning of September 11, 2001). 
After the initial decline in the first year, the adjusted FEV1 
continued to decline in smokers and non-smokers with little or no 
recovery in lung function during the subsequent 6 years. The authors 
concluded that the large decline in FEV1 after September 11, 2001, was 
indicative of airways injury due to 9/11 exposures.
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    \20\ Aldrich TK, Gustave J, Hall CB, Cohen HW, Webber MP, Zeig-
Owens R, Cosenza K, Christodoulou V, Glass L, Al-Othman F, Weiden 
MD, Kelly KJ, Prezant D [2010]. Lung function in rescue workers at 
the World Trade Center after 7 years. N Engl J Med. 362(14):1263-
1272.
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    Webber et al. [2011] \21\ examined the prevalence of physician-
diagnosed respiratory conditions in FDNY members up to 9 years after 
rescue/recovery efforts in the New York City disaster area. The authors 
reviewed self-reported physician diagnoses of asthma, chronic 
bronchitis, COPD/emphysema, and sinusitis from the most recent physical 
health survey conducted by the FDNY Bureau of Health Services and 
physician diagnoses obtained from FDNY electronic medical records. The 
study population consisted of 10,943 firefighters and EMS workers who 
first arrived at the site within 2 weeks of the terrorist attacks. All 
participants were free of COPD and emphysema before September 11, 2001, 
and less than 1 percent had asthma. The authors found the prevalence 
rates of both self-reported and physician diagnoses of OAD, i.e., 
asthma, chronic bronchitis, COPD/emphysema, and sinusitis were 
elevated, exceeding rates in the general population for individuals of 
a similar age. The highest proportion of FDNY responders with 
physician-diagnosed OAD had the lowest lung function (FEV1% predicted), 
indicating that 9/11 exposure had resulted in disease. The authors were 
unable to attribute these diagnoses to any other occupational 
exposures.
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    \21\ Webber MP, Glaser MS, Weakley J, Soo J, Ye F, Zeig-Owens R, 
Weiden MD, Nolan A, Aldrich TK, Kelly K, Prezant D [2011]. 
Physician-diagnosed respiratory conditions and mental health 
symptoms 7-9 years following the World Trade Center disaster. Am J 
Ind Med. 54(9):661-671.
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    Weakley et al. [2011] \22\ compared the prevalence of self-reported 
post-9/11 physician-diagnosed respiratory conditions (sinusitis, 
asthma, COPD/emphysema, and bronchitis) in 9/11-exposed FDNY 
firefighters to the prevalence in demographically similar National 
Health Interview Survey (NHIS) participants by year. The authors 
analyzed 45,988 questionnaires completed by 10,999 firefighters from 
October 2001 to September 2010. They reported higher rates of 
respiratory diagnoses in 9/11-exposed firefighters compared to the U.S. 
male general population, regardless of smoking status. Prevalence 
ratios, comparing FDNY to NHIS rates, were highest for COPD/emphysema 
and bronchitis. Because of the decrease in structural fires, 
improvement in personal protective equipment, and the decline in 
smoking rates among firefighters, the authors discounted normal 
firefighting activities as the cause of the increase in respiratory 
diagnoses.
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    \22\ Weakley J, Webber MP, Gustave J, Kelly K, Cohen HW, Hall 
CB, Prezant DJ [2011]. Trends in respiratory diagnoses and symptoms 
of firefighters exposed to the World Trade Center disaster: 2005-
2010. Prev Med. 53(6):364-369.
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    Friedman et al. [2011] \23\ also examined the relationship between 
9/11 exposures, post-9/11 lower respiratory symptoms, and pulmonary 
function in a nested case-control study of exposed survivors 7-8 years 
after September 11, 2001. The cases examined in the study were 274 WTC 
Health Registry participants who reported post-9/11 onset of a lower 
respiratory symptom. One-third of the cases further reported post-9/11 
physician diagnoses of asthma, chronic bronchitis, chronic obstructive 
pulmonary disease, or emphysema. Registry participants without lower 
respiratory symptoms or inhaler use and no current or past lung disease 
were used as control subjects. Only never-smokers participated in this 
study. Pulmonary function was assessed by spirometry and IOS. A higher 
proportion of abnormal spirometry results (obstructive and restrictive 
patterns) was found among cases than control subjects. IOS measurements 
of airway resistance and FDR (indicative of distal airways dysfunction) 
were significantly higher in cases than in control subjects, even when 
spirometry was normal. Lower respiratory symptoms were found 
significantly associated with IOS measurements but not with spirometry. 
Both exposure factors and IOS outcomes were associated with persistent 
symptoms, but exposure was not associated with IOS outcomes in the 
absence of symptoms. Certain exposure factors, including dust cloud 
density, smoke at home or work, and dust at home or work, were the 
strongest predictors of case status. The authors concluded that the 
association between post-9/11 onset of lower respiratory symptoms and 
lung function abnormalities detected by spirometry and IOS several 
years later were indicative of persistent airway disease with distal 
airways dysfunction as a contributing mechanism for these symptoms.
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    \23\ Friedman SM, Maslow CB, Reibman J, Pillai PS, Goldring RM, 
Farfel MR, Stellman SD, Berger KI [2011]. Case-control study of lung 
function in World Trade Center Health Registry area residents and 
workers. Am J Respir Crit Care Med. 184(5):582-589.
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    In a follow-up to the Friedman study reviewed above, Maslow et al. 
[2012] \24\ assessed associations between repeatedly reported lower 
respiratory symptoms and detailed measures of both acute and chronic 9/
11-related exposures. Acute exposures involved contact with the dust 
cloud created by the towers' collapse. Chronic factors were based on 
conditions in the home or work site through December 31, 2001, such as 
the extent of dust coverage; the duration of detectable smoke, fumes, 
and other odors; and whether the participant engaged in or was exposed 
to cleaning. The authors concluded that both acute and chronic 
exposures to the events of 9/11 were independently associated, often in 
a dose-dependent manner, with lower respiratory symptoms reported 2 to 
3 years and again 5 to 6 years after September 11, 2001 by individuals 
who lived and worked in the WTC area.
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    \24\ Maslow CB, Friedman SM, Pillai PS, Reibman J, Berger KI, 
Goldring R, Stellman SD, Farfel M [2012]. Chronic and acute 
exposures to the world trade center disaster and lower respiratory 
symptoms: Area residents and workers. Am J Public Health. 
102(6):1186-1194.
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C. Administrator's Determination Concerning New-Onset COPD

    The ADS assessed each of the six studies described above according 
to the methodology established by the Administrator. The studies were 
assessed for relevance, quality, bias, and confounding by applying 
criteria extrapolated from the Bradford Hill criteria.\25\
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    \25\ Criteria extrapolated from Bradford Hill criteria include: 
(i) Strength of the association between a 9/11 exposure and a health 
condition (including the magnitude of the effect and statistical 
significance); (ii) Consistency of the findings across multiple 
studies; (iii) Biological gradient, or dose-response relationships 
between 9/11 exposures and the health condition; and (iv) 
Plausibility and coherence with known facts about the biology of the 
health condition. See: Howard J, Administrator of the WTC Health 
Program. Policy and procedures for adding non-cancer conditions to 
the List of WTC-Related Health Conditions. October 21, 2014. http://www.cdc.gov/wtc/policies.html#46.

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[[Page 54751]]

    First, the studies were assessed for strength of the association 
between 9/11 exposures and a health condition (including the magnitude 
of the effect and statistical significance). Weiden et al. reported 
statistically significant longitudinal declines in FEV1, greater than 
expected by age or weight gain, among firefighters with documented high 
levels of exposure. Aldrich et al. reported significant substantial 
declines in FEV1 over the first year after the September 11, 2001, 
terrorist attacks and little lung function recovery among the FDNY 
participants 6 years after the disaster. The firefighters with the 
heaviest dust exposure (those arriving at the WTC site on the morning 
of the disaster) had significantly larger declines than did those 
arriving at later times. Importantly, the findings of both studies were 
independent of smoking history. A major limitation of both studies was 
the lack of spirometry during the first days after September 11, 2001, 
preventing the authors from determining whether some workers had an 
even more severe immediate decline in FEV1 and subsequent incomplete 
recovery. The possibility of systematic bias occurring due to the 
change of spirometer equipment between measurements and a loss-to-
follow-up effect due to drop out of severely affected participants from 
the study over time (survivor effect) were additional concerns [Aldrich 
et al.]; however, these appeared to have been minimized by further 
statistical analyses and strong cohort retention rate, respectively.
    In addition to the Weiden and Aldrich studies, strength of 
association was also demonstrated by Weakley et al., who found that 
annual estimates from 2007-2009 indicated prevalence ratios of chronic 
bronchitis and COPD/emphysema that were significantly higher among 
exposed white male firefighters than unexposed white males (stratified 
by age and smoking status), with greater disparity in the younger age 
group (18-44 years). Similarly, Webber et al. reported significant 
associations of 9/11 exposures and reduced pulmonary function with 
physician-diagnosed asthma, chronic bronchitis, and COPD/emphysema in a 
high proportion of FDNY rescue workers, indicating that persistent 
respiratory injury since exposure to the WTC had resulted in 
obstructive airways disease. A major limitation of both studies was the 
use of self-reported diagnoses, including diagnoses made by any 
physician (FDNY or otherwise) and self-diagnoses, which may have over-
inflated the prevalence rates. This limitation is a concern, especially 
for COPD/emphysema, which can be defined in a variety of ways; the 
definition used can have a significant impact on the population 
estimates of the burden of disease. However, many cases of COPD/
emphysema in this cohort were also diagnosed by FDNY physicians [Webber 
et al.] who were trained to diagnose respiratory diseases using defined 
diagnostic criteria after integrating the history, physical 
examination, spirometry, pulmonary function testing and chest imaging 
findings.
    Finally, among WTC Health Registry (Registry) participants, 
exposure factors (dust cloud density, smoke at home or work, and dust 
at home or work) and IOS outcomes (indicative of distal airways 
obstruction) were statistically associated with persistent post-9/11 
onset of lower respiratory symptoms [Friedman et al.]. Both acute and 
chronic exposures to the events of September 11, 2001 were 
independently associated with lower respiratory symptoms among 
individuals who lived and worked in the area of the WTC site [Maslow et 
al.]. Limitations of these studies include the use of spirometry and 
IOS measurements from a single visit and the possibility of selection 
bias from Registry surveys. However, the demographics were similar 
among Registry participants and those who were eligible but chose not 
to participate in the studies.
    The studies were next assessed for consistency of their findings. 
Objective findings of new onset, post-9/11 and persistent airflow 
limitation, as well as physician-diagnosed cases of COPD, including 
chronic bronchitis and COPD/emphysema, were identified among 
symptomatic FDNY responders for whom pre-9/11 results were available 
[Weiden et al.; Aldrich et al.; Webber et al.; Weakley et al.]. 
Elevated rates of lung function abnormalities, including distal airway 
dysfunction, new and persistent lower respiratory symptomatology, and a 
few post-9/11 self-reported physician diagnoses of chronic bronchitis, 
COPD, and emphysema were also described among non-FDNY residents and 
area workers up to 9 years after September 11, 2001 [Friedman et al.; 
Maslow et al.].
    The studies were also reviewed to assess the biological gradient or 
dose-response relationships between 9/11 exposures and the health 
condition. Newly developed lower respiratory symptoms and persistent 
pulmonary function abnormalities suggestive of airways injury and 
obstruction were significantly associated with 9/11 exposure in the 
FDNY studies, even after accounting for cigarette smoking. [Weiden et 
al.; Aldrich et al.; Webber et al.; Weakley et al.] Maslow et al. 
observed strong, significant associations and dose-response 
relationships between lower respiratory symptoms and every measure of 
severity of dust cloud exposure among WTC Health Registry participants. 
Weiden et al. also found a dose-response gradient (upward trend) in 
FDNY responders presenting for pulmonary evaluation due to reports of 
functional impairment or abnormalities in screening spirometry or chest 
radiographs. However, in this group of patients, exposure intensity had 
a significant impact only when spirometry obtained within 1 year post-
9/11 was compared to spirometry from 1 year pre-9/11. This suggests 
that while initial exposure intensity is the critical determinant of 
acute inflammation and early reductions in lung function, the clinical 
course of non-resolving airway inflammation and airways obstruction 
appears to be dependent not only on the intensity of the initial 
insult, but also on the host's inflammatory response, reflecting the 
complexity of genetic-environmental interactions.
    Finally, the studies were reviewed for plausibility and coherence 
with known facts about the biology of the health condition. Exposure to 
the massive alkaline dust cloud produced by the collapse of the WTC 
buildings was reportedly associated with upper and lower airway 
irritation with penetration into the bronchial tree, distal airways, 
and alveoli leading to respiratory symptoms, pulmonary function 
changes, and chronic inflammation. These are known contributing risk 
factors for the development of COPD.\26\ Persistent pulmonary function 
findings of reduced FEV1, FVC and the ratio of FEV1/FVC, bronchial 
hyperreactivity, variable response to bronchodilator, and abnormal 
oscillometry were indicative of airway injury. Airway disease was also 
identified as bronchial wall thickening and air trapping by HRCT 
[Weiden et al.]. Air trapping (demonstrated by increased residual 
volume) was correlated with

[[Page 54752]]

bronchodilator responsiveness; however, the lack of quantitative 
radiographic measurement of air trapping was a limitation of this 
study. Interestingly, the authors noted that bronchodilator response 
can be seen in COPD patients when air trapping is present. 
Epidemiologically, identification of occupationally-related COPD is 
based on observing excess occurrence of COPD among exposed workers.\27\ 
Among 9/11-exposed populations, this excess occurrence can be expressed 
not only by the increased prevalence ratios of new-onset post-9/11 
self-reported and physician-diagnosed chronic bronchitis and emphysema/
COPD in the FDNY cohort [Webber et al.; Weakley et al.], but also by 
evidence of persistent and progressive airflow limitation among all 
other symptomatic exposed groups [Friedman et al.; Maslow et al.].
---------------------------------------------------------------------------

    \26\ Rom WN, Reibman J, Rogers L, Weiden MD, Oppenheimer B, 
Berger K, Goldring R, Harrison D, Prezant D [2010]. Emerging 
exposures and respiratory health: World Trade Center dust. Proc Am 
Thorac Soc. 7(2):142-145.
    \27\ Balmes J, Becklake M, Blanc P, Henneberger P, Kreiss K, 
Mapp C, Milton D, Schwartz D, Toren K, Viegi G [2003]. American 
Thoracic Society Statement: Occupational contribution to the burden 
of airway disease. Am J Respir Crit Care Med. 167:787-797.
---------------------------------------------------------------------------

    In summary, obstructive airways disease is a category that includes 
both asthma and the umbrella term COPD, which itself includes 
obstructive chronic bronchitis, obstructive bronchiolitis, and 
emphysema. Upon assessment of the literature discussed above, the 
Administrator has found evidence that exposure to WTC dust is 
associated with the development of new-onset lower respiratory 
symptoms, prolonged airway inflammation and persistent airflow 
limitation, which are the main indicators of chronic airways 
obstruction. While it is difficult to demonstrate that the airway 
obstruction found in WTC survivors and responders is due to COPD versus 
asthma, three studies reported cases of physician-diagnosed COPD/
emphysema, one reported on IOS findings of air trapping and increased 
small airways resistance, and another study reported on HRCT findings 
of bronchial wall thickening, air trapping and emphysema, indicating 
that some proportion of OAD cases found in WTC survivors and responders 
could be interpreted as COPD. Further, because some cases of asthma are 
known to progress to COPD, it is likely that some of the diagnosed 
cases of asthma seen in these and other epidemiologic studies of the 9/
11-exposed populations have already progressed to COPD.
    In order to propose the addition of a health condition to the List, 
the Administrator must determine with high confidence that the evidence 
supports the findings regarding a causal association between 9/11 
exposure(s) and the health condition. In this instance, the 
Administrator finds there is substantial evidence that the 9/11 
exposures produced chronic airway inflammation manifested by persistent 
lower respiratory symptomatology and decline in pulmonary function 
which may have progressed to new-onset COPD in a proportion of exposed 
subjects in the period since exposure, independently from any cigarette 
smoking among the cohort. This evidence provides substantial support 
for a causal relationship between 9/11 exposures and new-onset COPD.

V. Acute Traumatic Injury

A. CCE and Data Center Request To Consider Adding Acute Traumatic 
Injury

    On May 13, 2014, the Administrator received a letter from the 
directors of the WTC Health Program CCEs and Data Centers supporting 
``coverage of not only heavy lifting or repetitive strain but 
significant traumatic injuries like head trauma, burns, fractures, 
tendon tears and serious complex sprains'' within the WTC Health 
Program.\28\ The directors suggested that such significant traumatic 
injuries should be included under the Program's existing coverage of 
musculoskeletal disorders. The directors offered data collected by the 
WTC Health Program Data Centers and the WTC Health Registry, 
demonstrating the numbers of individuals who might need chronic care 
for traumatic injuries. The Administrator was also aware that some 
individuals have experienced certain musculoskeletal injuries or other 
injuries caused by known hazards present at sites of the September 11, 
2001, terrorist attacks that may not meet the definition provided in 
the Act for musculoskeletal disorders. Based on these concerns, the 
Administrator requested that the ADS conduct a literature review 
regarding acute traumatic injuries among 9/11-exposed individuals.
---------------------------------------------------------------------------

    \28\ Musculoskeletal Conditions letter from WTC Health Program 
CCE and Data Center directors to Dori Reissman and John Halpin, WTC 
Health Program at 1. This letter is included in the docket for this 
rulemaking.
---------------------------------------------------------------------------

B. Literature Review

    In accordance with the methodology discussed above, the ADS 
initiated a search of published, peer-reviewed studies of traumatic 
injuries suffered by responders, recovery workers, and survivors as a 
result of the terrorist attacks on September 11, 2001, and the 
subsequent response and recovery efforts. Search terms used in the 
literature review included, ``wounds,'' ``lacerations,'' ``brain 
injury(ies),'' ``injury(ies),'' ``crush(ing),'' ``burn(s),'' 
``ocular,'' and ``fracture(s).'' \29\
---------------------------------------------------------------------------

    \29\ Databases searched include: PubMed, CINAHL, Web of Science, 
EMBASE, Health & Safety Science Abstracts, and NIOSHTIC-2.
---------------------------------------------------------------------------

    The literature search yielded over 300 citations; the associated 
study abstracts were reviewed for relevance to 9/11-exposed 
populations.\30\ Of the 300 citations identified, nine were determined 
to be relevant direct observational studies of 9/11-exposed 
populations. Relevant papers were then further reviewed for their 
quality and potential to provide a basis for deciding whether to 
propose adding the health condition to the List of WTC-Related Health 
Conditions. Only papers that reported on acute traumatic injuries that 
occurred in at least one of the three September 11, 2001, terrorist 
attack sites during the period from September 11, 2001 to July 31, 2002 
were found to exhibit potential for a recommendation. Quality was 
assessed by the absence of major study limitations and the use of 
standardized data collection methods such as standard forms or 
checklists. Based on these criteria, one relevant study was not found 
to be of sufficient quality to be included in the analysis because it 
did not identify the authors' data collection methods. Of the remaining 
eight studies, the methods used to collect the information and the 
definitions of the types of injuries vary. The time frame studied and 
the populations covered sometimes overlap between the studies, but 
taken together the studies provide an overview of the types of 
traumatic injuries that were sustained at the sites of the September 
11, 2001, terrorist attacks. Accordingly, the ADS found the eight 
relevant papers exhibited potential to provide a basis for a decision 
regarding whether to propose the addition of acute traumatic injury to 
the List. The studies are summarized below.
---------------------------------------------------------------------------

    \30\ Only direct observational studies of 9/11-exposed 
populations were considered to be relevant.
---------------------------------------------------------------------------

    Berrios-Torres et al. [2003] \31\ reviewed the data collected by 
five Disaster Medical Assistance Teams (DMATs) deployed by the U.S. 
Public Health Service to the site of the terrorist attack in New York 
City and by four hospital emergency departments (EDs) located within a 
3-mile radius of the site. The DMATs and EDs were tasked with 
conducting surveillance of injury and illness among construction 
workers,

[[Page 54753]]

FDNY and other fire department members, New York Police Department 
(NYPD) and other police department members, emergency medical service 
technicians (EMS), and the Federal Emergency Management Agency's Urban 
Search and Rescue members, all of whom were considered rescue and 
recovery workers. Of the 5,222 rescue workers who received medical care 
from either the DMATs or EDs between September 14, 2001 and October 11, 
2001, 89 percent visited DMAT facilities and 12 percent visited EDs. 
Injuries including, but not limited to, sprain/strain, laceration, 
abrasion, contusion, fracture, and crush were the leading cause of 
visits to DMATs and EDs (19 percent) and hospital admissions (40 
percent). Other visits and admissions were caused by burns, 
concussions, and eye-related conditions, including corneal abrasion and 
eye irritation.
---------------------------------------------------------------------------

    \31\ Berrios-Torres SI, Greenko JA, Phillips M, Miller JR, 
Treadwell T, Ikeda RM [2003]. World Trade Center rescue worker 
injury and illness surveillance, New York, 2001. Am J Prev Med 
25:79-87.
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    Perritt et al. [2005] \32\ analyzed DMAT data collected between 
September 14, 2001 and November 20, 2001. Patients who presented to the 
DMAT stations included rescue and recovery workers, as well as some 
members of the general public. Of the 9,349 patient visits recorded by 
the DMATs, more than 25 percent were attributed to traumatic injuries, 
not including eye injuries. Among the 22 patients with the highest 
triage severity classification, five involved traumatic injuries such 
as carbon monoxide poisonings, abrasions, needlesticks, electrical 
injuries, and first or second degree burns. Of the 149 patients with a 
moderate level of severity, 58 had traumatic injuries. For the 6,237 
patients classified into the lowest severity category, 1,984 had 
traumatic injuries. Of the 116 patients transferred to a hospital 
emergency department, 67 were treated for traumatic injuries.
---------------------------------------------------------------------------

    \32\ Perritt KR, Boal WL, Helix Group [2005]. Injuries and 
illnesses treated at the World Trade Center, 14 September-20 
November 2001. Prehosp Disast Med 20:177-183.
---------------------------------------------------------------------------

    Banauch et al. [2002] \33\ reported on all injuries and illnesses 
during the 24 hours after the September 11, 2001, terrorist attacks and 
all traumatic injuries (including those sustained within the first 24 
hours) sustained in the first 3 months after the attacks. Researchers 
identified cases from the FDNY Bureau of Health Services computerized 
medical data base. During the first 24 hours after the terrorist 
attacks, 240 FDNY rescue workers sought emergency medical treatment, 
including 28 individuals who required hospitalization. Twenty-four of 
the hospitalized FDNY workers had traumatic injuries including 
fractures, back trauma, knee meniscus tears, and facial burns. 
Researchers compared monthly mean incidence rates for crush injuries, 
lacerations, and fractures for the 9 months preceding the attacks with 
rates during the month after the attacks and found a 200 percent 
increase in the incident rate for crush injuries, a 35 percent increase 
for lacerations, and a 29 percent increase for fractures. Incident 
rates for such traumatic injuries after the first month following the 
attack then returned to levels similar to those observed before the 
attacks. According to the authors, nearly a year after the terrorist 
attacks, a total of 90 FDNY rescue workers were on medical leave or 
light duty assignments because of orthopedic injuries reported during 
the first 3 months of activity at the New York City site.
---------------------------------------------------------------------------

    \33\ Banauch G, McLaughlin M, Hirschhorn R, Corrigan M, Kelly K, 
Prezant D [2002]. Injuries and illnesses among New York City Fire 
Department rescue workers after responding to the World Trade Center 
attacks. MMWR September 11, 2002, 51(Special Issue):1-5.
---------------------------------------------------------------------------

    The New York City Department of Health (NYCDOH) [2002] \34\ issued 
a report summarizing findings of a field investigation to assess 
injuries and use of healthcare services by survivors of the terrorist 
attack. The researchers reviewed emergency department (ED) and 
inpatient medical records at the four hospitals closest to the WTC site 
and a fifth hospital that served as a burn referral center. Of 790 
injured survivors treated within 48 hours of the terrorist attacks, 50 
percent received care within the first 7 hours and 18 percent were 
hospitalized. Among those hospitalized survivors, many sustained burns. 
Survivors with fractures, burns, closed head injuries, and crush 
injuries were hospitalized for additional treatment.
---------------------------------------------------------------------------

    \34\ New York City Department of Health (NYCDOH) [2002]. Rapid 
assessment of injuries among survivors of the terrorist attacks on 
the World Trade Center--New York City, September 2001. MMWR January 
11, 2002, 51(01):1-5.
---------------------------------------------------------------------------

    Perritt et al. [2011] \35\ reviewed data collected between July 
2002 and April 2004 from the WTC Worker and Volunteer Medical Screening 
Program (which would later be known as the WTC Medical Monitoring and 
Treatment Program, the precursor to the WTC Health Program) to monitor 
the health of qualified New York City responders who worked and/or 
volunteered south of Canal Street in Manhattan, on the barge loading 
piers in Manhattan, or at the Staten Island landfill for at least 24 
hours during September 11-30, 2001 or for at least 80 hours between 
September 11 and December 31, 2001. The screening program did not 
include FDNY members. Records from 7,810 participants were analyzed, 
with most participants' activities associated with work in either the 
construction industry or law enforcement. Approximately a third of the 
participants reported at least one injury or illness requiring medical 
treatment that was sustained during response activities. A total of 
4,768 injuries/illnesses were reported by these participants, with 961 
individuals reporting traumatic injuries such as lacerations, 
punctures, sprain/strains, tears, abrasions, contusions, burns, 
fractures, dislocations and 709 individuals reporting eye injuries.
---------------------------------------------------------------------------

    \35\ Perritt KR, Herbert R, Levin SM, Moline J [2011]. Work-
related injuries and illnesses reported by World Trade Center 
response workers and volunteers. Prehosp Disast Med 26(6): 401-407.
---------------------------------------------------------------------------

    Yurt et al. [2005] \36\ reported on the number of burn patients 
(the authors did not specify whether the patients were responders or 
survivors) that had been transported to any of five burn units near the 
WTC site shortly after the attack. A total of 42 patients were 
transported from the WTC site and treated at one of the five burn 
units.
---------------------------------------------------------------------------

    \36\ Yurt RW, Bessey PQ, Bauer GJ, Dembicki R, Laznick H, Alden 
N, Rabbits A [2005]. A regional burn center's response to a 
disaster: September 11, 2001, and the days beyond. J Burn Care Rehab 
26: 117-124.
---------------------------------------------------------------------------

    Rutland-Brown et al. [2007] \37\ reviewed the medical records of 
hospitalized responders (the authors do not clarify whether FDNY 
members are included in the study) and survivors of the terrorist 
attacks in New York City with the goal of identifying diagnosed and 
undiagnosed traumatic brain injuries (TBIs).\38\ The authors identified 
14 cases of diagnosed and 21 cases of undiagnosed TBIs, from records 
provided by 36 hospitals. The leading cause of TBI was being hit by 
falling debris (22 cases), with other cases caused by being trampled or 
falling. One-third of the TBIs (13 cases) occurred among rescue 
workers. More than 3 years after the event, four out of six persons 
with an undiagnosed TBI who were contacted reported they currently were 
experiencing symptoms consistent with a TBI.
    Wang et al. [2005] \39\ reported on the experience of hospitals in 
the area around the Pentagon after the terrorist attacks. According to 
the authors, few

[[Page 54754]]

severely injured patients were treated at these hospitals and the 
traumatic injuries treated at these hospitals included orthopedic 
injuries, head injuries, burns, and lacerations. No reports of 
traumatic injuries that may have been treated at the site were 
identified.
---------------------------------------------------------------------------

    \37\ Rutland-Brown W, Langlois JA, Nicaj L, Thomas RG, Wilt SA, 
Bazarian JJ [2007]. Traumatic brain injuries after mass-casualty 
incidents: Lessons from the 11 September 2001 World Trade Center 
attacks. Prehosp Disast Med 22(3):157-164.
    \38\ Undiagnosed or undetected TBIs were identified by an 
adjudication team of TBI experts that reviewed the abstracted 
medical record information for signs and symptoms of TBIs.
    \39\ Wang D, Sava J, Sample G, Jordan M [2005]. The Pentagon and 
9/11. Crit Care Med 33:S42-S47.
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C. Administrator's Determination Concerning Acute Traumatic Injury

    The ADS assessed each of the identified studies according to the 
methodology established by the Administrator. All of the studies 
discussed above were observational reports of visits by responders and 
survivors to area hospitals, burn units, and DMATs. Because these were 
direct observational studies rather than epidemiologic studies, they 
were assessed for relevance, quality, and quantity to determine 
whether, taken together, they provide substantial evidence supporting 
the addition of acute traumatic injury to the List.
    First, the ADS assessed the relevance of the eight studies 
described above. Because most of the individuals who were treated at 
the DMATs and in area hospitals sustained injuries from fires and 
falling debris in the conduct of rescue operations or fleeing from the 
site, all of the studies reference the period of time immediately 
following the September 11, 2001, terrorist attacks, and several refer 
to data collected for months after. The studies assessed by the ADS 
demonstrate the occurrence of the same types of acute traumatic 
injuries identified by the directors of the CCEs and Data Centers in 
their letter: Severe burns, head trauma, fractures, tendon tears, and 
complex sprains. Other similar injuries identified in the studies 
include eye injuries, lacerations, and orthopedic injuries. There were 
no severe types of injuries referenced in the surveillance literature 
that have not been documented by the CCEs. Furthermore, the ADS 
determined that all of the referenced types of injuries could be 
described as being caused by a brief exposure to energy. Accordingly, 
the ADS found these eight studies to be relevant.
    Next, the ADS assessed the quality of the studies and found that 
many shared common limitations, such as: incomplete data sets (e.g., 
potential inability to include individuals who sustained only minor 
injuries, or who were treated outside of Manhattan, by private doctors, 
or by themselves); missing or inconsistent information on hastily-
completed medical forms, including lack of information about patients' 
work activity or residency; and recall bias. It is understandable that 
certain demographic data were not captured by healthcare providers in 
the chaotic days and weeks after the September 11, 2001, terrorist 
attacks; the missing data are not essential to the Administrator's 
understanding of the types of acute traumatic injuries sustained. 
Although injury rates are used to develop the economic analysis found 
in this document, the consideration of whether to propose the addition 
of acute traumatic injury to the List is not contingent upon knowing 
the exact prevalence of types of injuries sustained by responders or 
survivors. Accordingly, the ADS finds that the studies reviewed above 
are of sufficient quality and quantity to allow the Administrator to 
develop an understanding of the type and scope of the traumatic 
injuries suffered on September 11, 2001, or in its aftermath.
    Finally, the ADS assessed the quantity of the studies and found it 
to be sufficient. The eight relevant studies analyzed and reviewed 
overlapping populations affected by the attacks and response 
activities. Taken together, the studies provide a broad coverage of the 
affected populations and consistent information on the types of acute 
traumatic injuries that occurred. Because data regarding responders to 
the Pentagon and Shanksville, Pennsylvania sites is limited, the ADS 
found it appropriate to extrapolate the findings discussed above, which 
predominantly concern the New York City site, to all responder 
populations because of the similar hazards at all three sites.
    In summary, the 9/11 exposures for acute traumatic injuries were 
the conditions at the sites during the attacks, collapses, evacuations, 
recovery, and clean-up. Acute traumatic injuries documented in the 
published scientific literature were sustained by construction workers, 
police officers, firefighters, emergency medical service technicians, 
others engaged in response activities, and survivors. Hazards at the 
WTC site, at the Pentagon, and in Shanksville, Pennsylvania may have 
included, but are not limited to, falling debris, fires, chemical 
reactions, explosions, and other dangers. These hazards caused a range 
of injuries, such as abrasions, burns, concussions, contusions, corneal 
abrasions, crushes, dislocations, eye irritation, fractures, head 
trauma, lacerations, orthopedic injuries, punctures, sprains/strains, 
and tears. Many of these types of injuries were likely minor, and did 
not require substantial or on-going attention. In their letter to the 
Administrator, the CCE and Data Center directors identified severe 
burns, head trauma, fractures, tendon tears, and complex sprains as 
those types of acute traumatic injuries that should be added to the 
List of WTC-Related Health Conditions for all WTC Health Program 
members. Accordingly, the Administrator has determined that the types 
of injuries most likely to have resulted in the need for medical 
treatment and monitoring by the WTC Health Program are those types 
identified by the CCE and Data Center directors and in the injury 
surveillance literature reviewed above.
    Upon review of the evidence provided by the relevant published, 
peer-reviewed direct observational studies discussed above, the 
Administrator finds substantial support for a causal association 
between 9/11 exposures and acute traumatic injuries.

VI. Effects of Rulemaking on Federal Agencies

    Title II of the James Zadroga 9/11 Health and Compensation Act of 
2010 (Pub. L. 111-347) reactivated the September 11th Victim 
Compensation Fund (VCF). Administered by the U.S. Department of Justice 
(DOJ), the VCF provides compensation to any individual or 
representative of a deceased individual who was physically injured or 
killed as a result of the September 11, 2001, terrorist attacks or 
during the debris removal. Eligibility criteria for compensation by the 
VCF include a list of presumptively covered health conditions, which 
are physical injuries determined to be WTC-related health conditions by 
the WTC Health Program. Pursuant to DOJ regulations, the VCF Special 
Master is required to update the list of presumptively covered 
conditions when the List of WTC-Related Health Conditions in 42 CFR 
88.1 is updated.\40\
---------------------------------------------------------------------------

    \40\ 28 CFR 104.21(b).
---------------------------------------------------------------------------

VII. Summary of Proposed Rule

    For the reasons discussed above, the Administrator proposes to 
amend 42 CFR 88.1, List of WTC-Related Health Conditions, paragraph 
(1)(v), to add ``new-onset'' to the existing ``WTC-exacerbated chronic 
obstructive pulmonary disease (COPD).'' This will permit the WTC Health 
Program to certify cases of COPD determined to have been caused or 
contributed to by 9/11 exposures (considered ``new-onset'' cases), in 
addition to those cases of COPD which were exacerbated by 9/11 
exposures and which are already included on the List.
    For the reasons discussed above, the Administrator also proposes to 
add ``acute traumatic injury'' to the List of

[[Page 54755]]

WTC-Related Health Conditions. The Administrator proposes to define the 
term ``acute traumatic injury'' as a type of injury characterized by 
physical damage to a person's body, including, but not limited to, eye 
injuries, severe burns, head trauma, fractures, tendon tears, complex 
sprains, and similar injuries. The injury must have been caused by and 
occurred immediately after exposure to hazards or adverse conditions 
characterized by a one-time exposure to energy resulting from the 
terrorist attacks or their aftermath; this requirement is intended to 
distinguish these types of injuries from musculoskeletal disorders, 
which are already on the List of WTC-Related Health Conditions. 
Musculoskeletal disorders are generally caused by repetitive motion; 
acute traumatic injuries are caused by a specific event or incident. 
Examples of acute traumatic injuries include but are not limited to a 
blow from falling debris, a fall from a height or a trip suffered 
during evacuation, rescue, or recovery activities, and burns or other 
injuries caused by the ignition of combustible materials, chemical 
reactions, and explosions. Although these types of injury occur at the 
time of the blow, fall, explosion, or other exposure, symptoms of the 
injury may not immediately manifest.
    The Administrator proposes to limit the availability of 
certification of acute traumatic injuries to those WTC Health Program 
members who received initial medical treatment for the injury no later 
than September 11, 2003. The Administrator has determined that this 
date offers a reasonable amount of time in which to expect that an 
injured responder or survivor received treatment for an acute traumatic 
injury. The proposed end-date of September 11, 2003, is the date 
originally used to identify traumatic injuries determined to be 
eligible for treatment by the WTC Medical Monitoring and Treatment 
Program that pre-dated the WTC Health Program. In addition, the PHS Act 
uses this date as the treatment cut-off date to identify 
musculoskeletal disorders eligible for certification in responders. The 
Administrator seeks comment on whether September 11, 2003, is an 
appropriate deadline.

VIII. Regulatory Assessment Requirements

A. Executive Order 12866 and Executive Order 13563

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility.
    This notice of proposed rulemaking has been determined not to be a 
``significant regulatory action'' under sec. 3(f) of E.O. 12866. This 
rule proposes the addition of new-onset COPD \41\ and acute traumatic 
injury to the List of WTC-Related Health Conditions established in 42 
CFR 88.1. This rulemaking is estimated to cost the WTC Health Program 
between $5,124,477 and $9,350,966 for the years 2015 and 2016, the 
remaining years for which the WTC Health Program is currently funded 
under the Zadroga Act.\42\ All of the costs to the WTC Health Program 
will be transfers due to the implementation of provisions of the 
Patient Protection and Affordable Care Act (ACA) (Pub. L. 111-148) on 
January 1, 2014. This notice of proposed rulemaking has not been 
reviewed by the Office of Management and Budget (OMB). The rule would 
not interfere with State, local, and Tribal governments in the exercise 
of their governmental functions.
---------------------------------------------------------------------------

    \41\ WTC-exacerbated COPD is a statutorily covered condition 
pursuant to PHS Act sec. 3312(a)(3)(A)(v); this NPRM proposes to add 
new-onset COPD occurring after 9/11 exposures.
    \42\ Future cost and prevalence estimates described below are 
discounted at 3% and 7% in accordance with OMB Circular A-94, 
Guidelines and discount rates for benefit-cost analysis of Federal 
programs. The estimates are discounted in order to compute net 
present value.
---------------------------------------------------------------------------

Population Estimates
    As of July 31, 2014, the WTC Health Program had enrolled 61,086 
responders and 7,806 survivors (68,892 total). Of that total 
population, 56,334 responders and 4,754 survivors (61,088 total) were 
participants in previous WTC medical programs and were `grandfathered' 
into the WTC Health Program established by Title XXXIII of the PHS 
Act.\43\ From July 1, 2011 to July 31, 2014, 4,752 new responders and 
3,052 new survivors (7,804 total) enrolled in the WTC Health Program. 
For the purpose of calculating a baseline estimate of new-onset COPD 
and acute traumatic injury prevalence, the Administrator projected that 
new enrollment would be approximately 4,000 per year (2,800 new 
responders and 1,200 new survivors), based on the trend in enrollees 
through July 31, 2014.
---------------------------------------------------------------------------

    \43\ These grandfathered members were enrolled without having to 
complete a new member application when the WTC Health Program 
started on July 1, 2011 and are referred to in the WTC Health 
Program regulations in 42 CFR part 88 as ``currently identified 
responders'' and ``currently identified survivors.''
---------------------------------------------------------------------------

    CCE or Nationwide Provider Network physicians will conduct a 
medical assessment for each patient and make a determination, which the 
Administrator will then use to certify or not certify the health 
condition (in this case, new-onset COPD or an acute traumatic injury) 
for treatment by the WTC Health Program. However, for the purpose of 
this analysis, the Administrator has assumed that all diagnosed cases 
of new-onset COPD and acute traumatic injury will be certified for 
treatment by the WTC Health Program. Finally, because there are no 
existing data on new-onset COPD rates related to 9/11 exposures at 
either the Pentagon or Shanksville, Pennsylvania sites, and only 
limited data on acute traumatic injuries at the Pentagon, the 
Administrator has used only data from studies of individuals who were 
responders or survivors in the New York City area.
Prevalence of New-Onset COPD
    To estimate the number of potential cases of WTC-related new-onset 
COPD to be certified for treatment by the WTC Health Program, we first 
subtracted the number of current members certified for an obstructive 
airways disease, including WTC-exacerbated COPD, from the total number 
of members.\44\ We then reviewed the surveillance literature to 
determine a prevalence rate for new-onset COPD among the non-OAD 
certified members. In studies of FDNY members with known pre-9/11 
health status and high WTC exposure, Aldrich et al. reported that 2 
percent of FDNY firefighters had an FEV1% below 70 percent of predicted 
\45\ at year 1 after September 11, 2001 (a proportion that doubled 6.5 
years later), and Webber et

[[Page 54756]]

al. reported an approximate 4 percent prevalence of new-onset, self-
reported, physician-diagnosed COPD/emphysema nearly ten years after 
rescue/recovery efforts at the WTC site. Because pre-9/11 health 
records were not available in studies of WTC survivors, the 
Administrator has determined that the 4 percent prevalence of new-onset 
COPD will be applied to survivor estimates as well.\46\ We applied the 
4 percent prevalence to the number of remaining members and also to the 
projected annual enrollment of 4,000 new members to estimate the number 
of potential WTC-related new-onset COPD cases for 2015 and 2016. (See 
Table 1, below)
---------------------------------------------------------------------------

    \44\ Cases of COPD diagnosed prior to September 11, 2001, are 
presumed to be eligible for coverage as WTC-exacerbated COPD and 
therefore would not need coverage for new-onset COPD. Members 
already certified for an obstructive airway disease are also removed 
from the analysis because any progression to COPD (i.e., airflow 
limitation not fully reversible with bronchodilator) from their 
current certified WTC-related OAD condition could be considered a 
health condition medically-associated with the certified WTC-related 
OAD condition. See: Howard J [2014]. Health conditions medically 
associated with World Trade Center-related health conditions. http://www.cdc.gov/wtc/pdfs/WTCHPMedically%20AssociatedHealthConditions7November2014.pdf.
    \45\ FEV1% predicted is a marker for severity of airway 
obstruction. In the setting of post-bronchodilator FEV1/FVC <=0.7, 
FEV1% predicted >=80 indicates mild COPD; 50-80, moderate; 30-50, 
severe, and <30, very severe. See: American Thoracic Society COPD 
Guidelines [2004]. http://www.thoracic.org/clinical/copd-guidelines/for-health-professionals/definition-diagnosis-and-staging/definitions.php.
    \46\ The 4 percent prevalence of new-onset COPD that was 
observed among firefighters was used to estimate the number of 
expected cases of new-onset COPD in the entire exposed cohort and 
may result in an overestimation because of the differences in 
initial exposure intensity between responders and survivors.

                       Table 1--Estimated Prevalence of 2015 and 2016 New-Onset COPD Cases
----------------------------------------------------------------------------------------------------------------
                                                                       2015            2016         Total cases
----------------------------------------------------------------------------------------------------------------
                                                  Undiscounted
----------------------------------------------------------------------------------------------------------------
Responders......................................................           2,013           2,125           4,138
Survivors.......................................................             291             339             630
                                                                 -----------------------------------------------
    Total.......................................................           2,304           2,464           4,768
----------------------------------------------------------------------------------------------------------------
                                                Discounted at 3%
----------------------------------------------------------------------------------------------------------------
Responders......................................................           1,954           2,003           3,957
Survivors.......................................................             283             320             603
                                                                 -----------------------------------------------
    Total.......................................................           2,237           2,323           4,560
----------------------------------------------------------------------------------------------------------------
                                                Discounted at 7%
----------------------------------------------------------------------------------------------------------------
Responders......................................................           1,881           1,856           3,737
Survivors.......................................................             272             296             568
                                                                 -----------------------------------------------
    Total.......................................................           2,153           2,152           4,305
----------------------------------------------------------------------------------------------------------------

Prevalence of Acute Traumatic Injury
    While this rulemaking would make acute traumatic injuries eligible 
for certification, the Administrator assumes that the conditions most 
likely to receive treatment within the WTC Health Program will be those 
medically associated conditions which are the long-term consequences of 
the certified WTC-related acute traumatic injuries. Health conditions 
medically associated with WTC-related health conditions are determined 
on a case-by-case basis in accordance with WTC Health Program 
policy.\47\ Examples of such health conditions medically associated 
with an acute traumatic injury may include chronic back pain caused by 
vertebrae fractures, chronic peripheral neuropathy due to severe burns, 
and problems with executive brain function due to closed head injuries.
---------------------------------------------------------------------------

    \47\ Howard J [2014]. Health conditions medically associated 
with World Trade Center-related health conditions. http://www.cdc.gov/wtc/pdfs/WTCHPMedically%20AssociatedHealthConditions7November2014.pdf.
---------------------------------------------------------------------------

    Although we were able to estimate from the surveillance literature 
the number of responders and survivors who received medical treatment 
for acute traumatic injuries on or in the aftermath of September 11, 
2001, we do not know the number of individuals who still experience 
health problems because of those traumatic injuries and are in need of 
chronic care. First, we estimated the number of persons in the 
responder and survivor populations with 9/11-related acute traumatic 
injuries by reviewing the studies referenced above in the acute 
traumatic injury literature review; we derived estimates from Berrios-
Torres et al. [2003], Banauch et al. [2002], Perritt et al. [2011], and 
NYCDOH [2002]. Using the estimated prevalence for injury types, we then 
calculated the prevalence for these injuries among the responder \48\ 
and survivor \49\ populations. We applied that prevalence to the number 
of current and expected WTC Health Program members to find the number 
of individuals who may have suffered a WTC-related acute traumatic 
injury. Next, in order to estimate the proportion of those in the 
responder and survivor populations who suffered WTC-related acute 
traumatic injuries that require chronic care, we assumed that all 
patients with permanent partial and permanent total impairment caused 
by acute traumatic injuries will require chronic medical care and will 
enroll in the WTC Health Program. The National Safety Council estimated 
that 3.8 percent of non-fatal disabling injuries \50\ are associated 
with permanent partial or permanent total impairment.\51\ We applied 
that estimate to the estimated number of current and expected WTC 
Health Program members who may have suffered a WTC-related acute 
traumatic injury to determine the number of individuals with WTC-
related acute traumatic injuries who are in need of chronic care. (See 
Table 2,

[[Page 54757]]

below.) The Administrator welcomes input on the assumptions and 
estimates used to determine the number of current and future WTC Health 
Program members who may seek certification of WTC-related acute 
traumatic injuries.
---------------------------------------------------------------------------

    \48\ The responder estimate is subject to two main assumptions. 
First, Banauch et al. report on FDNY members from September 11 to 
December 10, 2001, and we assume no additional injuries from 
December 11, 2001 until the site was closed in July 2002. The time 
period reported on by Banauch et al. likely encompasses a large 
majority of the injuries suffered by FDNY members. Second, Perritt 
et al. does not report directly on closed head injuries; therefore 
the number of closed head injuries reported by Berrios-Torres et al. 
for responders is used.
    \49\ We estimate the survivor prevalence from the NYCDOH study 
reports on survivors during the period from September 11-13, 2001. 
Although we understand that this reporting period likely encompasses 
a majority of the survivors who were injured, because the number of 
cases is based on those survivors who were treated for injuries only 
within the first 48 hours after the terrorist attacks, the reported 
number of cases likely underestimates the total number of survivors 
who sustained acute traumatic injuries as a result of the September 
11, 2001, terrorist attacks.
    \50\ In 2011, the National Safety Council replaced the term 
``disabling injury'' with ``medically consulted injury.'' See 
National Safety Council [2014]. Injury facts.
    \51\ A non-fatal disabling injury is one which results in some 
degree of permanent impairment or renders the injured person unable 
to effectively perform his regular duties or activities for a full 
day beyond the day of the injury. National Safety Council [1986]. 
Injury facts.

                   Table 2--Estimated Prevalence of 2015 and 2016 Acute Traumatic Injury Cases
----------------------------------------------------------------------------------------------------------------
                                                                       2015            2016         Total cases
----------------------------------------------------------------------------------------------------------------
                                                  Undiscounted
----------------------------------------------------------------------------------------------------------------
Responders......................................................              76              79             155
Survivors.......................................................               9              10              19
                                                                 -----------------------------------------------
    Total.......................................................              85              89             174
----------------------------------------------------------------------------------------------------------------
                                                Discounted at 3%
----------------------------------------------------------------------------------------------------------------
Responders......................................................              74              74             148
Survivors.......................................................               9               9              18
                                                                 -----------------------------------------------
    Total.......................................................              83              83             166
----------------------------------------------------------------------------------------------------------------
                                                Discounted at 7%
----------------------------------------------------------------------------------------------------------------
Responders......................................................              71              69             140
Survivors.......................................................               8               9              17
                                                                 -----------------------------------------------
    Total.......................................................              79              78             157
----------------------------------------------------------------------------------------------------------------

Costs of COPD Treatment
    The Administrator estimated the medical treatment costs associated 
with COPD in this rulemaking, using the methods described below, to be 
between $1,032 and $1,930 per case in 2014.
    The low estimate, $1,032 per case, was based on WTC Health Program 
costs associated with the treatment of WTC-exacerbated COPD for the 
period October 1, 2013 through September 30, 2014. These medical costs 
included medical services only.\52\ Discounting future medical costs 
for the following year (2015) at 3 percent would result in $1,002 and 
at 7 percent in $965 per member. Discounting future medical costs for 
one more year (2016) at 3 percent would result in $973 and at 7 percent 
in $901 per member.
---------------------------------------------------------------------------

    \52\ Costs may be underestimated because pharmaceuticals are not 
included in the analysis. Although the WTC Health Program does treat 
patients with WTC-exacerbated COPD, the cost of pharmaceuticals for 
this health condition is not readily available.
---------------------------------------------------------------------------

    The high estimate, $1,930 per case, was based on a study by Leigh 
et al. [2002].\53\ The authors estimated the cost of occupational COPD 
by aggregating and analyzing national data sets collected by the 
National Center for Health Statistics, the Health Care Financing 
Administration, and other government agencies and private firms. They 
concluded that there were an estimated 2,395,650 occupational cases of 
COPD in 1996 that resulted in medical costs estimated at $2.425 
billion. Medical costs included payments to hospitals, physicians, 
nursing homes, and vendors of medical supplies, including oxygen, and 
also included the cost of pharmaceuticals. The medical cost per case 
was about $1,012 in 1996 dollars or about $1,930 in 2014, after 
adjusting for inflation using the Medical Consumer Price Index for all 
urban consumers. Discounting future medical costs for the following 
year (2015) at 3 percent would result in $1,874 and at 7 percent in 
$1,804 per COPD case. Discounting future medical costs for one more 
year (2016) at 3 percent would result in $1,819 and at 7 percent in 
$1,686 per COPD case.\54\
---------------------------------------------------------------------------

    \53\ Leigh JP, Romano PS, Schenker MB, Kreiss K [2002]. Costs of 
occupational COPD and asthma. Chest. Jan;121(1):264-272.
    \54\ The U.S. Preventive Services Task Force does not 
recommended screening for COPD. Screening for Chronic Obstructive 
Pulmonary Disease Using Spirometry. http://www.uspreventiveservicestaskforce.org/uspstf/uspscopd.htm. Accessed 
September 10, 2014.
---------------------------------------------------------------------------

    Table 3 below shows the net present value of the range of the 
medical treatment cost per COPD case for the period 2015-2016:

          Table 3--Present value of 2015 and 2016 Medical Treatment Cost per COPD Case in 2014 Dollars
----------------------------------------------------------------------------------------------------------------
               Source                        Year           Undiscounted    Discounted  at 3%  Discounted  at 7%
----------------------------------------------------------------------------------------------------------------
WTC Health Program..................               2015             $1,032             $1,002               $965
                                                   2016              1,032                973                901
                                     ---------------------------------------------------------------------------
    Total...........................  .................              2,064              1,975              1,866
Leigh et al. (2002).................               2015              1,930              1,874              1,804
                                                   2016              1,930              1,819              1,686
                                     ---------------------------------------------------------------------------
    Total...........................  .................              3,860              3,693              3,490
----------------------------------------------------------------------------------------------------------------


[[Page 54758]]

Costs of Acute Traumatic Injury Treatment
    The Administrator estimated the medical treatment costs associated 
with acute traumatic injury in this rulemaking using the methods 
described below. Because it is not possible to identify all possible 
types of acute traumatic injury for which a WTC responder or survivor 
might seek certification, we have identified several types of acute 
traumatic injury that may represent those types of acute traumatic 
injury that might be certified by the WTC Health Program. 
Representative examples of acute traumatic injuries include closed head 
injuries, burns, fractures, strains and sprains, orthopedic injuries 
(e.g., meniscus tear), ocular injuries, and crush injuries. The WTC 
Health Program estimates the cost of providing medical treatment for 
acute traumatic injury to be around $11,216 per case in 2014.
    This cost figure was based on a study by the National Council on 
Compensation Insurance (NCCI).\55\ The data source used in this study 
was NCCI's Medical Data Call (MDC). The MDC captures transaction-level 
detail on workers' compensation medical bills processed on or after 
July 1, 2010, including dates of service, charges, payments, procedure 
codes, and diagnosis codes; pharmaceutical costs are also included. The 
data used in this study were evaluated as of March 2013 for:
---------------------------------------------------------------------------

    \55\ Col[oacute]n D [2014]. The impact of claimant age on late-
term medical costs. NCCI Research brief, October 2014. https://www.ncci.com/documents/Impact-Claimant-Age-Late-Term-Med-Costs.pdf. 
Accessed February 4, 2015.
---------------------------------------------------------------------------

     Long-term medical services provided in 2011 and 2012 
(i.e., 20 to 30 years post injury)
     Injuries occurring between 1983 and 1990
     Claimants with dates of birth between 1920 and 1970
     States for which NCCI collects MDC \56\
---------------------------------------------------------------------------

    \56\ AK, AL, AR, AZ, CO, CT, DC, FL, GA, HI, IA, ID, IL, IN, KS, 
KY, LA, MA, MD, ME, MN, MO, MS, MT, NC, NE, NH, NJ, NM, NV, NY, OK, 
OR, RI, SC, SD, TN, UT, VA, VT, WI, and WV
---------------------------------------------------------------------------

    For individuals born during 1951-1970, the medical cost per case 
was about $11,216 in 2014 dollars, after adjusting for inflation using 
the Medical Consumer Price Index for all urban consumers.\57\ 
Discounting future medical costs for the following year (2015) at 3 
percent would result in $10,890 and at 7 percent in $10,482 per acute 
traumatic injury case. Discounting future medical costs for one more 
year (2016) at 3 percent would result in $10,572 and at 7 percent in 
$9,796 per traumatic injury case.
---------------------------------------------------------------------------

    \57\ Bureau of Labor Statistics. Consumer Price Index. https://research.stlouisfed.org/fred2/series/CPIMEDSL/downloaddata?cid=32419. Accessed November 5, 2014.
---------------------------------------------------------------------------

    Table 4 below shows the present value of the range of the medical 
treatment cost per traumatic injury case for the period 2015-2016:

 Table 4--Present Value of 2015 and 2016 Medical Treatment Cost per Acute Traumatic Injury Case in 2014 Dollars
----------------------------------------------------------------------------------------------------------------
               Source                        Year           Undiscounted    Discounted  at 3%  Discounted  at 7%
----------------------------------------------------------------------------------------------------------------
NCCI (2014).........................               2015            $11,216            $10,890            $10,482
                                                   2016             11,216             10,572              9,796
                                     ---------------------------------------------------------------------------
    Total...........................  .................             22,432             21,462             20,278
----------------------------------------------------------------------------------------------------------------

Summary of Costs
    This rulemaking is estimated to cost the WTC Health Program between 
$5,124,477 and $9,350,966 for the years 2015 and 2016.\58\ The analysis 
above offers an assumption about the number of individuals who might 
enroll in the WTC Health Program and estimates the number of new-onset 
COPD and acute traumatic injury cases and the resulting estimated 
treatment costs to the WTC Health Program. For the purpose of computing 
the treatment costs for new-onset COPD and acute traumatic injury, the 
Administrator assumed that all of the individuals who are diagnosed 
with either condition will be certified by the WTC Health Program for 
treatment and monitoring services. In the calculations found in Tables 
5 and 6, below, estimated treatment costs were applied to the estimated 
number of cases of new-onset COPD and acute traumatic injuries. We 
assumed that 9 percent of new-onset COPD costs and 12 percent of acute 
traumatic injury costs for responders may be covered by workers' 
compensation each year; \59\ accordingly, we adjusted only the 
responder estimates to clarify that 91 percent of COPD costs and 88 
percent of acute traumatic injury costs will be paid by the WTC Health 
Program.\60\ This analysis does not include administrative costs 
associated with certifying additional diagnoses of new-onset COPD or 
acute traumatic injuries that are WTC-related health conditions that 
might result from this action. Those costs were addressed in the 
interim final rule that established regulations for the WTC Health 
Program (76 FR 38914, July 1, 2011).
---------------------------------------------------------------------------

    \58\ The low cost estimate reflects the low COPD treatment cost 
estimate using WTC Health Program data, discounted at 7 percent, 
from Table 5 and the acute traumatic injury treatment cost estimate, 
discounted at 7 percent, from Table 6. The high cost estimate 
reflects the high COPD treatment cost estimate using data from Leigh 
et al. (2002), discounted at 3 percent, from Table 5 and the acute 
traumatic injury treatment cost estimate, discounted at 3 percent, 
from Table 6.
    \59\ See: WTC Health Program. Policy and procedures for 
recoupment and coordination of benefits: workers' compensation 
payment. http://www.cdc.gov/wtc/pdfs/WTCHP-PP-Recoupment-WComp-16-Dec-13.pdf.
    \60\ Workers' compensation rates are derived from WTC Health 
Program data.
---------------------------------------------------------------------------

    Since the implementation of provisions of the Affordable Care Act 
on January 1, 2014, all of the members and future members are assumed 
to have or have access to medical insurance coverage other than through 
the WTC Health Program. Therefore, all treatment costs to be paid by 
the WTC Health Program through 2016 are considered transfers. Tables 5 
and 6 describe the estimated allocation of WTC Health Program transfer 
payments.

[[Page 54759]]



     Table 5--Present Value of 2015 and 2016 Medical Treatment Cost for New-Onset COPD Cases in 2014 Dollars
----------------------------------------------------------------------------------------------------------------
          Source  (costs)             Year        Undiscounted         Discounted at 3%       Discounted at 7%
----------------------------------------------------------------------------------------------------------------
                                                   Responders
----------------------------------------------------------------------------------------------------------------
WTC Health Program................     2015  $1,032 * 2,013 * .91   $1,002 * 1,954 * .91   $965 * 1,881 * .91 =
                                              = $1,890,449.          = $1,781,696.          $1,651,800
                                       2016  $1,032 * 2,125 * .91   $973 * 2,003 * .91 =   $901 * 1,856 * .91 =
                                              = $1,995,630.          $1,773,516.            $1,521,753
----------------------------------------------------------------------------------------------------------------
                                                    Survivors
----------------------------------------------------------------------------------------------------------------
                                       2015  $1,032 * 291 =         $1,002 * 283 =         $965 * 272 = $262,480
                                              $300,312.              $283,566.
                                       2016  $1,032 * 339 =         $973 * 320 = $311,360  $901 * 296 = $266,696
                                              $349,848.
                                            --------------------------------------------------------------------
                                      Total  $4,536,239...........  $4,150,138...........  $3,702,729
----------------------------------------------------------------------------------------------------------------
                                                   Responders
----------------------------------------------------------------------------------------------------------------
Leigh et al. (2002)...............     2015  $1,930 * 2,013 * .91   $1,874 * 1,954 * .91   $1,804 * 1,881 * .91
                                              = $3,535,432.          = $3,332,234.          = $3,087,925
                                       2016  $1,930 * 2,125 * .91   $1,819 * 2,003 * .91   $1,686 * 1,856 * .91
                                              = $3,732,138.          = $3,315,546.          = $2,847,587
----------------------------------------------------------------------------------------------------------------
                                                    Survivors
----------------------------------------------------------------------------------------------------------------
                                       2015  $1,930 * 291 =         $1,874 * 283 =         $1,804 * 272 =
                                              $561,630.              $530,342.              $490,688
                                       2016  $1,930 * 339 =         $1,819 * 320 =         $1,686 * 296 =
                                              $654,270.              $582,080.              $499,056
                                            --------------------------------------------------------------------
                                      Total  $8,483,470...........  $7,760,202...........  $6,925,256
----------------------------------------------------------------------------------------------------------------


 Table 6--Present Value of 2015 and 2016 Medical Treatment Cost for Acute Traumatic Injury Cases in 2014 Dollars
----------------------------------------------------------------------------------------------------------------
          Source  (costs)             Year        Undiscounted         Discounted at 3%       Discounted at 7%
----------------------------------------------------------------------------------------------------------------
                                                   Responders
----------------------------------------------------------------------------------------------------------------
NCCI (2014).......................     2015  $11,216 * 76 * .88 =   $10,890 * 74 * .88 =   $10,482 * 71 * .88 =
                                              $750,126.              $709,157.              $654,915
                                       2016  $11,216 * 79 * .88 =   $10,572 * 74 * .88 =   $9,796 * 69 * .88 =
                                              $779,736.              $688,449.              $594,813
----------------------------------------------------------------------------------------------------------------
                                                    Survivors
----------------------------------------------------------------------------------------------------------------
                                       2015  $11,216 * 9 =          $10,890 * 9 = $98,010  $10,482 * 8 = $83,856
                                              $100,944.
                                       2016  $11,216 * 10 =         $10,572 * 9 = $95,148  $9,796 * 9 = $88,164
                                              $112,160.
                                            --------------------------------------------------------------------
                                      Total  $1,742,966...........  $1,590,764...........  $1,421,748
----------------------------------------------------------------------------------------------------------------

Examination of Benefits (Health Impact)
    This section describes qualitatively the potential benefits of the 
proposed rule in terms of the expected improvements in the health and 
health-related quality of life of potential new-onset COPD or acute 
traumatic injury patients treated through the WTC Health Program, 
compared to no treatment by the Program.
    The Administrator does not have information on the health of the 
population that may have experienced 9/11 exposures and is not 
currently enrolled in the WTC Health Program. However, the 
Administrator assumes that all unenrolled responders and survivors are 
now covered by health insurance (due to the ACA) and may be receiving 
treatment outside the WTC Health Program.
    Although the Administrator cannot quantify the benefits associated 
with the WTC Health Program, members with new-onset COPD or acute 
traumatic injury would have improved access to care and thereby the 
Program should produce better treatment outcomes than in its absence. 
Under other insurance plans, patients may have deductibles and copays, 
which impact access to care and timeliness of care. WTC Health Program 
members who are certified for these conditions would have first-dollar 
coverage and, therefore, are likely to seek care sooner when indicated, 
resulting in improved treatment outcomes.
Limitations
    The analysis presented here was limited by the dearth of verifiable 
data on the new-onset COPD and acute traumatic injury status of 
responders and survivors who have yet to apply for enrollment in the 
WTC Health Program. Because of the limited data, the Administrator was 
not able to estimate benefits in terms of averted healthcare costs. Nor 
was the Administrator able to estimate indirect costs such as averted 
absenteeism, short and long-term disability, and productivity losses 
averted due to premature mortality.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
requires each

[[Page 54760]]

agency to consider the potential impact of its regulations on small 
entities including small businesses, small governmental units, and 
small not-for-profit organizations. The Administrator believes that 
this rule has ``no significant economic impact upon a substantial 
number of small entities'' within the meaning of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

C. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., requires 
an agency to invite public comment on, and to obtain OMB approval of, 
any regulation that requires 10 or more people to report information to 
the agency or to keep certain records. This rule does not contain any 
information collection requirements; thus, HHS has determined that the 
PRA does not apply to this rule.

D. Small Business Regulatory Enforcement Fairness Act

    As required by Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), HHS will 
report the promulgation of this rule to Congress prior to its effective 
date.

E. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and Tribal governments, and the private sector 
``other than to the extent that such regulations incorporate 
requirements specifically set forth in law.'' For purposes of the 
Unfunded Mandates Reform Act, this proposed rule does not include any 
Federal mandate that may result in increased annual expenditures in 
excess of $100 million in 1995 dollars by State, local or Tribal 
governments in the aggregate, or by the private sector. However, the 
rule may result in an increase in the contribution made by New York 
City for treatment and monitoring, as required by Title XXXIII, sec. 
3331(d)(2).

F. Executive Order 12988 (Civil Justice)

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12988, ``Civil Justice Reform,'' and will not unduly 
burden the Federal court system. This rule has been reviewed carefully 
to eliminate drafting errors and ambiguities.

G. Executive Order 13132 (Federalism)

    The Administrator has reviewed this proposed rule in accordance 
with Executive Order 13132 regarding federalism, and has determined 
that it does not have ``federalism implications.'' The rule does not 
``have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.''

H. Executive Order 13045 (Protection of Children from Environmental 
Health Risks and Safety Risks)

    In accordance with Executive Order 13045, the Administrator has 
evaluated the environmental health and safety effects of this proposed 
rule on children. The Administrator has determined that the rule would 
have no environmental health and safety effect on children.

I. Executive Order 13211 (Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use)

    In accordance with Executive Order 13211, the Administrator has 
evaluated the effects of this proposed rule on energy supply, 
distribution or use, and has determined that the rule will not have a 
significant adverse effect.

J. Plain Writing Act of 2010

    Under Public Law 111-274 (October 13, 2010), executive Departments 
and Agencies are required to use plain language in documents that 
explain to the public how to comply with a requirement the Federal 
Government administers or enforces. The Administrator has attempted to 
use plain language in promulgating the proposed rule consistent with 
the Federal Plain Writing Act guidelines.

Proposed Rule

List of Subjects in 42 CFR Part 88

    Administrative practice and procedure, Health care, Lung diseases, 
Mental health programs.

    For the reasons discussed in the preamble, the Department of Health 
and Human Services proposes to revise 42 CFR part 88 as follows:

PART 88--WORLD TRADE CENTER HEALTH PROGRAM

0
1. The authority citation for part 88 continues to read as follows:

     Authority: 42 U.S.C. 300mm-300mm-61, Pub. L. 111-347, 124 Stat. 
3623.

0
2. In Sec.  88.1, under the definition ``List of WTC-related health 
conditions,'' revise paragraph (1)(v) and add paragraph (5) to read as 
follows:


Sec.  88.1  Definitions.

* * * * *

List of WTC-related health conditions * * *
    (1) * * *
    (v) WTC-exacerbated and new-onset chronic obstructive pulmonary 
disease (COPD).
* * * * *
    (5) Acute traumatic injuries for those WTC responders and 
screening- and certified-eligible WTC survivors who received any 
medical treatment for such an injury on or before September 11, 2003. 
Acute traumatic injury means physical damage to the body caused by and 
occurring immediately after a one-time exposure to energy, such as 
heat, electricity, or impact from a crash or fall, resulting from a 
specific event or incident. Eligible acute traumatic injuries may 
include but are not limited to the following:
    (i) Eye injuries.
    (ii) Severe burns.
    (iii) Head trauma.
    (iv) Fractures.
    (v) Tendon tears.
    (vi) Complex sprains.
    (vii) Other similar acute traumatic injuries.
* * * * *

    Dated: August 31, 2015.
John Howard,
Administrator, World Trade Center Health Program and Director, National 
Institute for Occupational Safety and Health, Centers for Disease 
Control and Prevention, Department of Health and Human Services.
[FR Doc. 2015-22599 Filed 9-9-15; 11:15 am]
 BILLING CODE P