Reacting to criticism that an earlier compensation proposal for Sept. 11 victims and survivors was too stingy and covered too few people, the Bush administration Thursday issued final rules for the payouts that increase what victims and surviving family members would get while increasing the pool of potential recipients.
But survivors of those killed in the terrorist attacks on the World Trade Center in New York and the Pentagon outside Washington expressed disappointment with elements of the revised compensation plan.
For instance, they noted the administration’s failure to raise the $250,000 guaranteed minimum payout, or non-economic award, for each deceased victim.
“What they’re really saying is that the value of a life is $250,000,” said Carrie Lemack, whose mother died at the World Trade Center.
Meanwhile, unmarried partners of those who died expressed concern that the final rule leaves them out in the cold, unable to make a successful claim for compensation money.
Acknowledging that the administration’s improved plan still had its critics, Kenneth Feinberg, the lawyer who heads the compensation fund, said the average award to families would be $1.85 million when compensation based on lost income and the non-economic award were considered. That was about $200,000 more than was estimated in a preliminary version of the plan a few months ago.
“I continue to believe … that this entire program constitutes an unprecedented act of generosity by the American people to those who continue to suffer daily as a result of Sept. 11,” said Feinberg, who was named the fund’s special master by President Bush.
The presentation of the final outline of the compensation program was not the only act of national generosity to Sept. 11 victims announced Thursday.
At a White House Rose Garden appearance, Bush declared he would keep his promise to give New York City more than the $20 billion pledged to help rebuild. The president was surrounded by New York’s congressional delegation as well as Mayor Michael Bloomberg and former Mayor Rudolph Giuliani.
“This is the right thing to do,” Bush said. “It’s the absolute right position for our government to take. It is essential that New York City come back and come back strong for the good of the entire nation.”
Bush seeks to add $1.5 billion in New York aid, although his plan counted $5 billion in business tax credits for lower Manhattan–legislation passed in the House on Thursday–against the $21.5 billion package.
The compensation fund for victims and survivors of the terrorist attacks, which was given to the Justice Department to oversee, was part of the Air Transportation Safety and System Stabilization Act that Congress passed to save the airline industry in the aftermath of the Sept. 11 tragedy, in which more than 3,000 people were killed.
Besides giving the industry a $15 billion aid package, Congress created the victims compensation package to protect the industry from a potential flood of liability lawsuits. Family members who accept compensation forfeit their legal rights to sue the airlines.
Changes in final rules
The final rules doubled, to $100,000, the non-economic award for each surviving spouse and child. The rules also made clear that Social Security and worker’s compensation benefits as well as 401(k) retirement savings and charity donations to surviving families would not be deducted from the total.
But life insurance and Social Security survivor benefits for children until age 18 would be deducted from any amount a family received from the compensation fund.
The revised compensation package also eases limits on eligibility for payments by allowing those injured in the attacks on the World Trade Center and the Pentagon to file claims so long as they sought medical treatment within 72 hours after the hijacking attacks and can document that. The earlier deadline was 24 hours.
In addition, rescue workers at those two locations and the Pennsylvania crash site of United Airlines Flight 93 may be able to receive compensation even if they did not get medical care for symptoms related to the aftermath of the attacks until more than 72 hours elapsed.
Such claims would be decided on a case-by-case basis, Feinberg said. “If they didn’t cough up blood until the eighth day, we’ll take a look,” he said.
Also, the definition of “rescue worker” would extend beyond firefighters, police officers and paramedics to include construction workers who operated heavy-duty machinery that lifted debris at the sites, Feinberg said.
The rules would also make it possible for the families of undocumented immigrant workers to file claims without fear that the information gathered would be used to start Immigration and Naturalization Services proceedings against them, he said.
Feinberg said families would likely do better through the compensation program than they would through litigation. Congress capped the airlines’ liability at $6 billion to pay all claims stemming from the terrorist attacks, including personal liability, property damage and business interruption losses.
“There’s no money if you win,” Feinberg said. “And this is not such an easy case to find liability in, it’s not such an easy task.”
What Feinberg saw as virtues, however, some survivors of Sept. 11 victims considered serious flaws.
Discontent brews
While acknowledging that the final rules were better than the interim ones, “overall, we’re very disappointed,” said Stephen Push, treasurer of Families of September 11.
His wife, Lisa J. Raines, was killed on American Airlines Flight 77, which crashed into the Pentagon.
“The $250,000 amount for non-economic damages for the decedent is arbitrary, capricious, does not comply with the law, is not consistent with any precedent in this area,” Push said. “We believe the Justice Department has exceeded their discretion.
“It’s pretty clear to us what’s going on here. The administration would like to set a precedent for tort reform that they can’t get passed in Congress.”
The antipathy of many conservative Republicans for trial lawyers who win high jury awards in liability cases was the main reason the administration fashioned a plan with significant limitations on compensation to surviving families, Push charged. His group is examining the rules and may launch a legal challenge, he said.
Lucy Aita, who lost her fiance, Paul Innella, on Sept. 11, said she was disappointed the rules left out unmarried partners. “For now, we are unclear as to what our options are,” she said of the dozens of heterosexual, gay and lesbian partners who may get nothing from the fund.
In this area, Feinberg said, the federal government would defer to state laws where the victims and survivors lived. And he noted that the laws “are relevant only in the absence of a valid will. Thus, to the extent that some or all of the award would pass by will, the will may determine the identity of some or all of the beneficiaries.”
Jennifer Pizer, of the Lambda Legal Defense Fund, which is representing a number of the two dozen gays and lesbians who lost partners in the attacks, said: “In most states, the legal rights of domestic partners has been evolving. … Out of a desire to rely on state law, the federal master has avoided making specific statements about state law because there is so much variety in state law. So we are likely to see significant divergence in the treatment of claims depending on where people live.”
“We know our options are slim,” said Aita. “If our future in-laws, or whoever is representative of our deceased loved ones, aren’t going to acknowledge us, then I think we will have to go to the courts.”
