June 12, 2016
By Pitta Giblin & Baione LLP
After a long fought battle by the labor movement and its political allies, on December 18, 2015 President Obama signed into law the reauthorization of the James Zadroga 9/11 Health and Compensation Act (“Zadroga Act”). Named for an NYPD Detective who died from respiratory failure linked to exposure at Ground Zero, the Zadroga Act established two benefit programs - the World Trade Center Health Program and the September 11th Victim Compensation Fund.
The World Trade Center Health Program (“WTCHP”), administered by the National Institute of Occupational Safety and Health, provides free medical monitoring, treatment, and medication for physical and psychological illnesses to eligible 9/11 responders and survivors. The reauthorized Zadroga Act extends the WTCHP through 2090 and allocates an additional $3.5 billion in funding.
The September 11th Victim Compensation Fund (“VCF”), administered by the Department of Justice, provides financial compensation for pain/suffering, lost earnings/benefits, replacement services, and past out-of- pocket medical expenses caused by eligible physical conditions. Unlike the WTCHP, the VCF does not cover psychological conditions. The reauthorized Zadroga Act extends the deadline for claimants to file to December 18, 2020 and allocates an additional $4.6 billion in funding.
Additionally, the reauthorized Zadroga Act created two classes of VCF claimants – those that received a loss determination on or before December 17, 2015 (“Group A”), and all others (“Group B”). The VCF was directed to issue full compensation to Group A claimants “as soon as practicable,” and is required to do so before any funds can be used to pay Group B claimants. In December, VCF Special Master Sheila Birnbaum set June as the target date to reach this goal.
On May 24, 2016, Special Master Birnbaum has announced that the VCF has paid $1 billion in compensation and has authorized full compensation to 8,717 Group A claimants. Special Master Birnbaum also announced that the VCF projects to issue all Group A awards by the end of June. In order to meet this goal, the VCF’s current focus is on resolving open issues preventing payment to the remaining Group A claimants.
However, if there are outstanding Group A issues by the end of June, then the VCF will authorize payments on incomplete Group A claims, and the Department of Justice will place funds into an account from which future payment can be made. This plan will allow the VCF to account for all Group A payments, and make funding available to pay Group B claimants.
Although the VCF’s current focus is issuing full payments to Group A claimants, Special Master Birnbaum announced that their team has continued to review and process Group B claims as well. This includes issuing over 2,050 eligibility decisions since the beginning of January, completing preliminary loss calculations for almost 1,000 claims, and continuing to send “Group B Complete” letters to claimants advising that their claim has been reviewed. The VCF projects to begin issuing Group B loss determination letters at the end of June and to authorize payments in mid-August, ahead of its original projection of September.
The reauthorization of the Zadroga Act also required the VCF to issue updated policies, procedures and regulations by June 15, 2016. Special Master Birnbaum announced that updated regulations have been drafted and are in the final stages of Government review. The updated regulations will be issued as an “Interim Final Rule” on June 15, subject to a thirty-day post- publication notice and comment period.
In addition to updating regulations, the VCF also updated its compensation claim form. The form is an integral part of the process from which almost all eligibility and compensation information flows. Prior to drafting the updated form, the VCF sought input from a focus group of the most active 9/11 compensation attorneys, including me. The draft form is currently being reviewed by the Office of Management and Budget, and the VCF projects to post a sample of the claim form on their website on June 15, and to update the online claim form by the last week of July.
Finally, the VCF is reviewing and updating its website content to reflect the effects of reauthorization. The VCF projects to post new information to their website on June 15 and finalize updates by late July.