Setting the Record Straight about Tuesday’s House Hearing on a Legislative Proposal to Extend Additional Aid in the Aftermath of the 9/11 Attacks on NYC

 

Rep. Issa has consistently supported Federal relief for the victims of 9/11 attacks and the First Responders who suffered physical injury in the response effort.

Contrary to what some have stated, Rep. Issa did not state that the 9/11 attacks were not an attack on America itself; he did not object to the billions in Federal aid that has already been sent to New York City (including help for injured and sick responders) that he has previously and consistently supported; and he never minimized the horrible tragedy that took place on September 11, 2001. 

At a Subcommittee Hearing on H.R. 3543, a bill that proposes creating a new multi-billion dollar, compensation program that goes beyond aiding those who were physically injured or became sick after working at Ground Zero, Rep. Darrell Issa asked tough questions about a bill that would give U.S. taxpayer dollars to those who did not suffer physical injury and did not work at or around Ground Zero. 

Video of Rep. Issa’s questions and comments can be viewed here (Rep. Issa’s comments begin around time mark 1:42:00 and last 7 minutes):  http://judiciary.house.gov/oversight.aspx?ID=428

Rep. Issa recognizes that had he expressed his concerns differently, it would have been clearer that he was focusing on the bill itself and not the 9/11 tragedy.  He also recognizes that, due to law suits and other factors, some sick Ground Zero workers do need help but have not received it, and it is appropriate help these persons gain access to existing or new Federal Resources.

Rep. Issa was not the only person at Tuesday’s hearing who asked tough questions or had reservations about H.R. 3543.  Expert witnesses also asked questions about the same issues Rep. Issa expressed concern about. 

 Mr. Theodore H. Frank -- American Enterprise Institute for Public Policy Research

 http://judiciary.house.gov/media/pdfs/Frank080401.pdf

 

 

“H.R. 3543 includes as ‘presumed WTC-related health conditions’ such common ailments as anxiety disorder, depression, substance abuse, lower back pain, and ‘marital problems, parenting problems, etc.’ Under Section 3012(a)(1)(C), a WTC responder with a ‘presumed WTC-related health condition’ has a ‘WTC-related health condition’ without the need to show any causation. With such generous criteria, about forty percent of Americans would be classified as having a presumed WTC-related health condition.  Under § 3012(c)(1), the government would be required to pay for medically necessary treatment for a WTC responder who had these common conditions, even if that responder had them on September 10, 2001.”

“For causation for conditions that are not ‘presumed,’ all an eligible claimant must demonstrate under Section 3012(a)(1)(B) is that the September 11 ‘attacks are at least as likely as not to be a significant factor in aggravating, contributing to, or causing the condition’ (emphasis added).

The attacks need not have caused a mental condition; they only need to have ‘aggravated’ or ‘contributed to’ it. Over twenty percent of Americans have taken anti-depressant medications; one strongly suspects that ratio is higher for a cosmopolitan area such as New York City where the stigma of psychiatric care is smaller than in the American population at large. If the vague definition of ‘psychological injury’ is interpreted by the Special Master to include emotional distress from bad memories, then nearly every New Yorker (like nearly every American) would be an eligible claimant. The Administrator also has great discretion under Section 3022 to create a list of presumed WTC related health conditions for which New York residents need not demonstrate causation.”

“H.R. 3543 creates a compensation program that is especially susceptible to error and fraud.”

“H.R. 3543 fails to provide adequate protection to taxpayers that taxpayer money will be spent on compensation of victims, rather than on attorneys’ fees.”

 “Section 3021 creates eligibility for benefits for people who lived, worked, or attended school in the ‘New York City disaster area,’ the precise parameters of which are left up to the WTC program administrator, but must, under Section 3009(5), include all of Manhattan south of 14th Street, i.e., within two miles of the World Trade Center. Under Section 3009(5), ‘In determining the boundaries of the New York City disaster area, the administrator shall take into consideration peer-reviewed research that has demonstrated potential exposure to such toxins at a distance of within 5 miles from the former World Trade Center,’ and nothing bars the Administrator from using a larger radius. If you think school boards get lobbied hard over the boundary lines between high schools, imagine what pressure the WTC program administrator will face when she decides which Manhattan cross-street is the dividing line for eligibility for millions of dollars of government largess.”

“If the purpose of the bill is to compensate Ground Zero responders who suffered from lung problems caused by toxins in the smoldering pit, as the Findings of Section 2 of H.R. 3543 suggest, then it is hard to see why there is the need to include such broad swaths of common mental health conditions for treatment. Well over $100 million in taxpayer and private dollars were spent on mental health treatment in the New York City area immediately after September 11 in response to never-realized predictions of epidemic levels of long-term post-traumatic stress disorder, and those programs appear to have been largely irrelevant to the mental well-being of New Yorkers.

 “Section 204 of H.R. 3543 defines ‘immediate aftermath’ as the nearly-ten-month period between September 11, 2001 and July 31, 2002; someone who moves to Greenwich Village in January 2002 would be eligible to claim compensation from the VCF for psychological injury from watching the September 11 attacks on television in Atlanta.”

“Anyone who died in the plane crashes or tower collapses of September 11 clearly was a victim of the September 11 attacks. But it is not the case that anyone with a pulmonary or psychological ailment in the greater New York area is an appropriate claimant. Lung disease is common without exposure to Ground Zero; psychological ailments even more so. Some patients with pulmonary disease contracted it from working at Ground Zero, but that is not true of all such claimants. Yet nothing in the current version of Section 405(a)(2) requires claimants to submit information on other possible causes of pulmonary disease or psychological ailments, and it is entirely permissible for the Special Master to decline to conduct discovery on or independent medical reviews of claimants.”

“A compensation fund like the one created by H.R. 3543 will suffer from what Professor Richard Nagareda calls the Field of Dreams problem: ‘If you build it, they will come.’ If Congress creates a compensation system where geographic proximity and a diagnosis are the only prerequisites for a large government check and an attorney’s contingent fee, attorneys will have every incentive to manufacture such diagnoses, and have done so in the past. ‘Plaintiffs are recruited at mass screenings sponsored by lawyers; mobile X-ray vans churn out hundreds of thousands of X-rays on an assembly line basis which are read by a handful of doctors selected by lawyers solely for litigation purposes.’ Ninety percent of such diagnoses erroneously favor the claimant. Despite the widespread fraud in asbestos and silicosis litigation, no attorneys have faced any sanction harsher than a fine of a few thousand dollars.”

From Hearing Testimony:

 

Kenneth R. Feinberg -- Former Special Master of the Federal September 11th Victim Compensation Fund of 2001



http://judiciary.house.gov/media/pdfs/Feinberg080401.pdf

 

 

 

 

“Second, even a ‘one line’ extension of the original 9/11 Fund poses fundamental philosophical and political questions of fairness.  Why should Congress be reenacting the 9/11 Fund, providing millions in additional public compensation to the physical injury victims of the September 11 attacks, while no such Fund exists at all for the victims of the Oklahoma City bombing, the victims of the African Embassy bombing, the victims of the first World Trade Center attack in 1993 or, for that matter, the victims of the unprecedented disaster associated with Hurricane Katrina?  Why should Congress, which has already enacted legislation authorizing over $7 billion in public compensation to the families of those who died on September 11, or who were physically injured as a result of the attacks, now authorize additional millions or even billions in compensation for the remaining September 11 victims, while failing to do anything similar to the other victims of life’s misfortunes?  It is a fundamental question posed to our elected officials in a free democratic society.  Why some victims but not others?  On what basis should such distinctions be made?  Are some victims more ‘worthy’ than others?”



“Various interested parties, while championing the reenactment of the 9/11 Fund, have called for statutory modifications and additions, e.g., indemnity protection for contractors at the World Trade Center site; compensation for claimants suffering mental trauma without accompanying physical injury; elimination of the collateral offsets rule which was an integral part of the original Fund; and subsequent Fund payments for eligible claimants who received compensation from the earlier Fund, but whose physical condition has subsequently worsened resulting in a demand for additional compensation.  These and other well intentioned requests have all been asserted in connection with any attempt to reenact and extend the original 9/11 Fund.  But I suggest that any attempt to modify the statutory provisions and accompanying regulations of the original Fund will lead to the type of controversy and disagreement that will undercut political consensus and prevent reenactment of the Fund.”

 

 



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