The September 11th Victim Compensation Fund (VCF): Background and Potential Reauthorization

Congressional research reportJul 15, 2019

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The September 11th Victim Compensation

Fund (VCF): Background and Potential

Reauthorization

Scott D. Szymendera

Analyst in Disability Policy

Updated July 15, 2019

Congressional Research Service

7-....

www.crs.gov

R45808

SUMMARY

The September 11th Victim Compensation Fund

(VCF): Background and Potential

Reauthorization

R45808

July 15, 2019

Scott D. Szymendera

Analyst in Disability Policy

-redacted-@crs.loc.gov

The September 11th Victim Compensation Fund (VCF) provides cash benefits to certain persons

For a copy of the full report,

whose health may have been affected by exposure to debris or toxic substances in the aftermath

please call 7-.... or visit

of the September 11, 2001, terrorist attacks on the Pentagon and the World Trade Center, and the

www.crs.gov.

terrorist-related aircraft crash at Shanksville, PA. Congress created the original VCF shortly after

the 2001 terrorist attacks to provide compensation to persons injured and to the families of

persons killed in the attacks and their immediate aftermath. In 2011, Congress reopened the VCF to provide benefits to

persons who responded to the terrorist attack sites, were involved in the cleanup of these sites, or lived in lower Manhattan

during the attacks. The VCF was reauthorized in 2015, and it is scheduled to sunset on December 18, 2020.

The VCF has awarded more than $5 billion since its reopening and is in danger of exceeding its current appropriation of

$7.375 billion before its sunset date and thus being unable to pay full benefits. In February 2019, the Special Master of the

VCF announced that all future VCF awards would be reduced to prevent the VCF from running out of appropriated funds.

The Special Master cites increases in death claims, cancer claims, and claims from non-responders as drivers of the increase

in VCF benefit costs.

Reauthorization bills, H.R. 1327 and S. 546, have been introduced, with H.R. 1327 being ordered reported out of the

Judiciary Committee on June 12, 2019. Both bills would reauthorize the VCF without changing any eligibility categories and

appropriate “such sums as may be necessary” for each fiscal year through FY2090. On July 12, 2019, H.R. 1327 was passed

by the House of Representatives with amendments that changed the bill’s name, changed the provisions for adjusting the

maximum amount of income considered for determining noneconomic loss, added up to two Deputy Special Masters to the

program’s administration, and made the bill’s spending exempt from PAYGO requirements.

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The September 11th Victim Compensation Fund (VCF)

Contents

History of the VCF .......................................................................................................................... 1

Original VCF ............................................................................................................................. 1

Reopened VCF .......................................................................................................................... 2

VCF Reauthorization ................................................................................................................ 2

Overview of the VCF Under Current Law ...................................................................................... 3

VCF Eligibility .......................................................................................................................... 3

Immediate Aftermath .......................................................................................................... 3

September 11th Crash Sites ................................................................................................. 3

Physical Harm ..................................................................................................................... 3

VCF Operations ........................................................................................................................ 6

Registration and Claim Deadlines ...................................................................................... 6

VCF Benefits............................................................................................................................. 6

VCF Financing ................................................................................................................................ 7

Special Master’s Reduction of Future Awards ................................................................................ 7

Special Master’s Assessment .................................................................................................... 7

Notice of Inquiry ................................................................................................................. 7

Projections of Future VCF Expenditures ............................................................................ 8

Reductions of Future Awards .................................................................................................. 12

Potential VCF Reauthorization in the 116th Congress ................................................................... 13

House Passage of Reauthorization Legislation ....................................................................... 13

Tables

Table 1. Projected VCF Program Costs ........................................................................................... 8

Table 2. Eligible Cancer-Only Claims and Total Claims ............................................................... 10

Table A-1. September 11th Victim Compensation Fund (VCF) Awards ........................................ 15

Table A-2. September 11th Victim Compensation Fund (VCF) Award Amounts .......................... 15

Table A-3. September 11th Victim Compensation Fund (VCF) Compensation Paid by

Category ..................................................................................................................................... 16

Appendixes

Appendix. September 11th Victim Compensation Fund Awards and Amounts ............................. 15

Contacts

Author Contact Information .......................................................................................................... 16

Congressional Research Service

The September 11th Victim Compensation Fund (VCF)

he current September 11th Victim Compensation Fund (VCF) provides cash benefits to

certain persons whose health may have been affected by the aftermath of the September

11, 2001, terrorist attacks on the Pentagon and the World Trade Center, and the terroristrelated aircraft crash at Shanksville, PA. The current iteration of the VCF may be unable to pay

full benefits to eligible persons and is scheduled to sunset on December 18, 2020. Current VCF

data are provided in this report’s Appendix.

History of the VCF

On September 22, 2001, the Air Transportation Safety and System Stabilization Act (ATSSA; P.L.

107-42) was enacted into law.1 Quickly passed by Congress in the wake of the September 11,

2001, terrorist attacks, this legislation provided various forms of relief to the American airline

industry and affirmed Congress’s commitment to improving airline safety. Title IV of the ATSSA

also established the VCF to compensate persons injured or the representatives of persons killed in

the attacks or their immediate aftermath.

The VCF originally closed in 2003 and was reopened in 2011 and expanded to provide

compensation to responders to the September 11, 2001, terrorist attacks and others, such as

certain New York City residents, who may have suffered health effects in the aftermath of the

attacks. The VCF was reauthorized in 2015 and, if not reauthorized in the 116th Congress, will

sunset on December 18, 2020.

Original VCF

The original VCF, as created by Title IV of the ATSSA, provided cash benefits to the following

groups of persons who suffered physical injury or death as a result of the terrorist attacks of

September 11, 2001:



persons who were present at the World Trade Center, Pentagon, or aircraft crash

site in Shanksville, PA, at the time of or in the immediate aftermath of the aircraft

crashes at those sites on September 11, 2001;2 and

passengers and crew of any aircraft that crashed on September 11, 2001, as a

result of terrorist activity.

The amount of benefits available to each claimant was determined by a Special Master appointed

by the Attorney General.3 The amount of benefits payable to each claimant was based on each

person’s economic losses (such as loss of future earnings) and noneconomic losses (such as pain

and suffering). The VCF statute specifically prohibited the payment of punitive damages. Benefits

were reduced by certain collateral source payments, such as life insurance benefits, available to

the claimant. There was no cap on the amount of benefits that any one person could receive or on

total benefits paid.

By filing a VCF claim, a person waived his or her right to file a civil action or be a party to such

an action in any federal or state court for damages related to the September 11, 2001, terrorist-

1 The Air Transportation Safety and System Stabilization Act (ATSSA) is codified at 49 U.S.C. §40101 note.

2 The term “immediate aftermath” was defined in the original Victim Compensation Fund (VCF) regulations at 28

C.F.R. §104.2(b) [2002] to include the period of time from a crash until 12 hours after a crash for all persons except

rescue workers and 96 hours after a crash for rescue workers.

3 Attorney General John Ashcroft appointed Kenneth Feinberg as Special Master of the VCF on November 26, 2001.

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The September 11th Victim Compensation Fund (VCF)

related aircraft crashes.4 This provision established the VCF as an alternate and expedited route to

compensation for victims while providing some protection against lawsuits for damages that may

have been brought by victims against the air carriers; airframe manufacturers; the Port Authority

of New York and New Jersey, who owned the World Trade Center; or any other entity.

Congress provided funding for the VCF through an appropriation of “such sums as may be

necessary” for benefit payment and administration. The Special Master of the VCF was required

to promulgate regulations to govern the program within 90 days of the law’s enactment, and all

claims had to be filed within two years of the regulations’ promulgation, at which time the VCF

would close.5 The original VCF received 7,403 claims and made awards totaling $7.049 billion to

5,560 claimants.6

Reopened VCF

The original VCF was closed to new claims in December 2003. However, concerns about injuries

and illnesses incurred by persons involved in emergency response, recovery, and debris removal

operations at the September 11th aircraft crash sites led Congress to reopen the VCF with the

enactment of Title II of the James Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga

Act; P.L. 111-347). The reopened VCF extended eligibility for cash benefits to persons who

suffered physical injuries or illnesses as a result of rescue, recovery, or debris removal work at or

near the September 11th aircraft crash sites during the period from September 11, 2001, to May

30, 2002, as well as certain persons who lived, worked, or were near the World Trade Center on

September 11, 2001.

The VCF was initially reopened for new claims through October 3, 2016. Total benefits and

administrative costs paid by the reopened VCF were limited to $2.775 billion, unlike in the

original VCF, which had no cap on total funding for benefits, allowing the Special Master to

award benefits without considering the benefits’ total cost. Under the reopened VCF, attorneys’

fees were limited to 10% of the VCF award.7

VCF Reauthorization

The reopened VCF was scheduled to stop taking claims on October 3, 2016. The VCF was

reauthorized on December 18, 2015, with the enactment of Title IV of Division O of the

Consolidated Appropriations Act, 2016 (Zadroga Reauthorization Act of 2015; P.L. 114-113).

Under this reauthorization, claims approved before the reauthorization date are considered Group

A claims. Group A claims are subject to the same rules as claims under the reopened VCF and are

subject to the $2.775 billion cap on total benefit payments. All other claims filed before the final

VCF deadline of December 18, 2020, are considered Group B claims subject to additional rules

and funding caps established by the reauthorization legislation. Thus, all current claims are Group

B claims.

4 This provision was amended later in 2001 by Section 201 of the Aviation and Transportation Security Act (P.L. 107-

71) to permit civil actions against persons who were knowing participants in any conspiracy to hijack any aircraft or

commit any terrorist act.

5 Interim final regulations for VCF1 were promulgated on December 21, 2001 (Department of Justice, “September 11 th

Victim Compensation Fund of 2001; Interim Final Rule,” 66 Federal Register 66282, December 21, 2001), resulting in

a sunset date for the VCF of December 22, 2003.

6 Kenneth R. Feinberg, Final Report of the Special Master for the September 11th Victim Compensation Fund 2001,

Department of Justice, 2004, p. 109.

7 There was no cap on attorneys’ fees in the original VCF legislation.

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The September 11th Victim Compensation Fund (VCF)

Overview of the VCF Under Current Law

VCF Eligibility

To be eligible for VCF benefits, a person must have



died as a passenger or crew member on one of the aircraft hijacked on September

11, 2001;

died as a direct result of the terrorist-related aircraft crashes or rescue, recovery,

or debris removal in the immediate aftermath of the September 11, 2001, terrorist

attacks; or

been present at a September 11th crash site in the immediate aftermath of the

September 11, 2001, terrorist attacks and suffered physical harm as a direct result

of the crashes or the rescue, recovery, and debris removal efforts.

Immediate Aftermath

For the purposes of VCF eligibility, the immediate aftermath of the September 11th terrorist

attacks is the time period from September 11, 2001, to May 30, 2002.

September 11th Crash Sites

For the purposes of VCF eligibility, the September 11th crash sites include



the World Trade Center, Pentagon, or Shanksville, PA, crash sites;

the buildings or portions of buildings that were destroyed as a result of the

September 11th terrorist attacks;



the area in Manhattan that is south of the line that runs along Canal Street from

the Hudson River to the intersection of Canal Street and East Broadway, north on

East Broadway to Clinton Street, and east on Clinton Street to the East River; and

any area related to debris removal, such as the debris-removal barges and Fresh

Kills in Staten Island, New York.



Physical Harm

To be eligible for the VCF, individuals who did not die as passengers or crew members of one of

the hijacked aircraft, or as a direct result of the September 11th terrorist attacks (including rescue,

recovery, and debris removal), must have suffered physical harm as a result of the attacks. For the

purposes of VCF eligibility, physical harm is demonstrated by the presence of a World Trade

Center (WTC)-related physical health condition as defined for the purposes of the World Trade

Center Health Program (WTCHP).8

8 The World Trade Center Health Program (WTCHP) provides medical monitoring and treatment to responders to the

sites of the September 11, 2001, terrorist attacks and certain New York City residents living near the World Trade

Center. The WTCHP is administered by the Centers for Disease Control and Prevention (CDC), National Institute for

Occupational Safety and Health (NIOSH). For additional information on the WTCHP, see the program website at

https://www.cdc.gov/wtc/.

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WTC-Related Physical Health Condition

A WTC-related physical health condition is a physical health condition covered by the WTCHP.

These conditions are those provided in statute at Sections 3312(a) and 3322(b) of the Public

Health Service Act (PHSA)9 and those added through rulemaking by the WTCHP administrator.10

Per Section 3312(a) of the PHSA, to be covered by the WTCHP and thus compensable under the

VCF, a condition must be on the list of covered WTCHP-covered conditions and it must be

determined that exposure in the aftermath of the September 11, 2001, terrorist attacks “is

substantially likely to be a significant factor in aggravating, contributing to, or causing the illness

or health condition.”11 In most cases, the VCF requires that a person’s condition be certified by

the WTCHP for that condition to be compensable.12

The WTCHP provides guidance on how to evaluate if a person’s condition meets the standard to

be linked to exposure in the aftermath of the September 11, 2001, terrorist attacks.13 This

evaluation is based on a combination of the amount of time a person was physically present at a

site and the specific activities—such as search and rescue, sleeping in a home in Lower

Manhattan, or just passing through a site—in which the person engaged. For example, a person

who was engaged in search and rescue activities at the World Trade Center site between

September 11 and September 14, 2001, must have been present for at least 4 hours for the

WTCHP to certify his or her condition and thus compensable by the VCF, whereas a person

whose only activity was passing through Lower Manhattan during the same period, and who was

not caught in the actual dust cloud resulting from the buildings’ collapse, would have to have

been in the area for at least 20 hours to be eligible for compensation.14 The WTCHP evaluates

conditions that do not meet the minimum exposure criteria on a case-by-case basis using

“professional judgement” and “any relevant medical and/or scientific information.”15

WTCHP-covered mental health conditions may not be used to establish VCF eligibility, as the

VCF does not include any provisions for benefit payments for mental health conditions.

Cancer as a WTC-Related Physical Health Condition

The WTCHP statute does not include any type of cancer in the list of WTC-related health

conditions. However, the statute does require the WTCHP administrator to periodically review

the available scientific evidence to determine if any type of cancer should be covered by the

WTCHP and, by extension, the VCF. In response to a petition to add conditions to the list of

WTC-related health conditions, the WTCHP administrator is required, within 90 days, to either

request a recommendation on action from the WTC Scientific/Technical Advisory Committee

(STAC) or make a determination on adding the health condition. If the WTCHP administrator

9 42 U.S.C. §§300mm-22(a) and 300mm-32(b).

10 The complete list of conditions covered by the WTCHP is provided in regulation at 42 C.F.R. §88.15 and on the

WTCHP website at https://www.cdc.gov/wtc/conditions.html.

42 U.S.C. §300mm-22(a).

12 In certain limited circumstances, a physician not affiliated with the WTCHP may certify that a person’s condition is

covered by the WTCHP and thus compensable by the VCF.

13 World Trade Center Health Program, Policy and Procedures for Certification of Physician Determinations for

Aerodigestive and Cancer Health Conditions, February 20, 2015, https://www.cdc.gov/wtc/pdfs/policies/

WTCHPPPCertPhysDetFINAL20Feb2015-508.pdf. (Hereinafter WTCPH, Policy and Procedures for Certification of

Physician Determinations.)

14 WTCPH, Policy and Procedures for Certification of Physician Determinations, pp. 4-5.

15 WTCPH, Policy and Procedures for Certification of Physician Determinations, p. 4.

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The September 11th Victim Compensation Fund (VCF)

requests a recommendation from the STAC, that recommendation must be made within 90 days

of its receipt and the WTCHP administrator must act on that request within an additional 90

days.16

On September 7, 2011, Representatives Carolyn B. Maloney, Jerrold Nadler, Peter King, Charles

B. Rangel, Nydia M. Velazquez, Michael G. Grimm, and Yvette Clarke and Senators Charles E.

Schumer and Kirsten E. Gillibrand filed a petition, in the form of a letter to the WTCHP

administrator, requesting that the administrator “conduct an immediate review of new medical

evidence showing increased cancer rates among firefighters who served at ground zero” and that

the administrator “consider adding coverage for cancer under the Zadroga Act.”17 In response to

this petition, the WTC administrator requested that the STAC “review the available information

on cancer outcomes associated with the exposures resulting from the September 11, 2001,

terrorist attacks, and provide advice on whether to add cancer, or a certain type of cancer, to the

List specified in the Zadroga Act.”18

On September 12, 2012, based on the STAC’s recommendations, the WTCHP administrator

added more than 60 types of cancer, covering nearly every body system and including any

cancers in persons less than 20 years of age and any rare cancers,19 to the list of WTC-related

health conditions, thus making these conditions compensable under the VCF.20

In a review of the decision to add cancers to the list of WTC-related health conditions, the

Government Accountability Office (GAO) found that the WTCHP administrator used a hazardsbased approach to evaluate cancers.21 This approach evaluated whether exposures in the aftermath

of the September 11, 2001, terrorist attacks were associated with types of cancer but did not

evaluate the probability of developing cancer based on a given exposure. A GAO-convened

scientific panel indicated that the hazards-based approach the WTCHP administrator used was

reasonable given data constraints and the fact that there is a certification process to determine if a

cancer or other condition on the list of WTC-related health conditions meets the statutory

requirement of being “substantially likely to be a significant factor in aggravating, contributing

to, or causing the illness or health condition.”22 The panel also indicated that this approach could

have benefited from an independent peer review process. The WTCHP administrator stated that

peer review was not possible given the statutory time constraints to act on the petition and the

STAC’s recommendation.

16 42 U.S.C. §§300mm-22(a)(6)(B) and (C). Each of these deadlines was increased from 60 days to 90 days by the

Zadroga Reauthorization Act of 2015.

17 Letter from Reps. Carolyn B. Maloney, Jerrold Nadler, and Peter King, et al. to John Howard, Director, National

Institute for Occupational Safety and Health, September 7, 2011.

18 Letter from John Howard, Director, National Institute for Occupational Safety and Health, to Elizabeth Ward, Chair,

WTC Health Program Scientific/Technical Advisory Committee, October 5, 2011.

19 For the purposes of the WTCHP and VCF, a rare cancer is a cancer that occurs in less than 15 cases per 100,000

persons per year in the United States. This includes, among other cancers, cancers of the brain, male breast, and

gallbladder. A complete list of covered rare cancers is provided on the WTCHP website at https://www.cdc.gov/wtc/

conditions.html.

20 Department of Health and Human Services, “World Trade Center Health Program: Addition of Certain Types of

Cancer to the List of WTC-Related Health Conditions,” 77 Federal Register 56158, September 12, 2012.

21 U.S. Government Accountability Office, World Trade Center Health Program: Approach Used to Add Cancers to

List of Covered Conditions was Reasonable but Could be Improved, GAO-14-606, July 2014.

22 42 U.S.C. §§300mm-22(a).

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The September 11th Victim Compensation Fund (VCF)

One year later, the WTCHP administrator added prostate cancer to the list of WTC-related health

conditions.23 The WTCHP administrator has also established minimum latency periods for certain

types of cancer24 and maximum onset periods for certain types of aerodigestive disorders.25

VCF Operations

The Civil Division of the Department of Justice administers the VCF. The VCF Special Master,

currently Rupa Bhattacharyya decides VCF eligibility and benefits. A claimant dissatisfied with

the Special Master’s decision on his or her claim may file an appeal and request a hearing before

a VCF hearing officer appointed by the VCF. There is no further right of appeal or judicial review

of VCF decisions. A claimant may amend his or her claim after a decision has been made if the

claimant has new material relevant to the claim.

Registration and Claim Deadlines

All claims for VCF benefits must be filed by December 18, 2020, five years after the VCF

reauthorization act’s enactment. Before filing a claim, a potential claimant must have registered

with the VCF by one of the following applicable deadlines:



by October 3, 2013, if the claimant knew, or reasonably should have known, that

he or she suffered a physical harm or died as a result of the September 11th

attacks or rescue, recovery, or debris removal efforts, and that he or she was

eligible for the VCF, on or before October 3, 2011;

within two years of the date the claimant knew, or reasonably should have

known, that he or she has a WTC-related physical health condition or died as a

result of the September 11th attacks and is eligible for the VCF.

If a claimant has a condition that is later added to the list of conditions covered by the WTCHP,

then the two-year period begins on the later of the dates when a government entity, such as the

WTCHP or a state workers’ compensation agency, determines that the condition is related to the

September 11th attacks, or when a claimant’s condition is added to the list of conditions covered

by the WTCHP.26

VCF Benefits

Benefits under the original VCF were not subject to any caps on individual or total payments.

When the VCF was reopened, total benefits were subject to a cap of $2.775 billion; however,

23 Department of Health and Human Services, “World Trade Center Health Program: Addition of Prostate Cancer to the

List of WTC-Related Health Conditions,” 78 Federal Register 57514, September 19, 2013.

24 World Trade Center Health Program, Minimum Latency & Types and Categories of Cancer, Revised, November 5,

2014, https://www.cdc.gov/wtc/pdfs/policies/wtchpminlatcancer2014-11-07-508.pdf. For example, the minimum

latency period for mesothelioma is 11 years from exposure and the minimum latency period for most solid cancers is

four years from exposure.

25 World Trade Center Health Program, Time Intervals for New Onset Aerodigestive Disorders, Revised, February 18,

2015, https://www.cdc.gov/wtc/pdfs/WTCHP_Time_Intervals_New_Onset_AeroDig_Disorders.pdf. For example, to

be compensable certain obstructive airway diseases, such as asthma and chronic cough syndrome, must occur within

five years of exposure.

26 A table of deadlines for each type of medical condition is provided on the VCF website at https://www.vcf.gov/pdf/

RegisterChart.pdf.

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The September 11th Victim Compensation Fund (VCF)

there were no specific caps on individual benefits. VCF benefits for Group B are subject to caps

on noneconomic losses and total benefits.

Benefits under the VCF for Group B claims are determined by the Special Master based on the

claimant’s economic and noneconomic losses. For noneconomic losses, there is a cap of $250,000

for claims based on cancer and $90,000 for all other claims. However, for cases in which a

person’s death was caused by a WTC-related health condition, the VCF regulations provide that

the presumed award for noneconomic loss is $250,000 plus an additional $100,000 for the

person’s spouse and each dependent.27 When calculating economic losses, the Special Master is

only permitted to consider the first $200,000 in annual income when determining losses to past

earnings and future earning capacity, which limits the amount of economic losses that can be

paid. There is a total cap of $4.6 billion for VCF Group B awards. As in past iterations of the

VCF, benefits are reduced by certain collateral source payments available to claimants, such as

life insurance benefits, workers’ compensation payments, and government benefits related to the

person’s injury or death, such as Social Security Disability Insurance (SSDI) and the Public

Safety Officers’ Benefits Program (PSOB).

VCF Financing

The costs of VCF benefits and administration are not subject to annual appropriations. Rather,

costs for Group A benefits and administration were financed by the $2.775 billion in

appropriations provided by the Zadroga Act. Costs for Group B benefits and administration are

financed by the one-time appropriation of $4.6 billion provided in the Zadroga Reauthorization

Act of 2015. Thus, the total funding available for the VCF since its reopening is $7.375 billion.

Funding was made exempt from budget sequestration by the Zadroga Reauthorization Act of

2015.28

Special Master’s Reduction of Future Awards

Total funding for VCF benefits and administrative costs is capped by the $7.375 billion in

appropriations that have been provided in the Zadroga Act and Zadroga Reauthorization Act of

2015, with a total cap of $4.6 billion for VCF Group B awards. The VCF statute requires the

Special Master to annually reassess VCF policies and procedures to determine if these policies

and procedures satisfy the statutory requirements that claimants with the most debilitating

physical conditions have their claims prioritized and that total expenditures for awards and

administrative costs associated with Group B claims do not exceed the $4.6 billion in available

funding.29

Special Master’s Assessment

Notice of Inquiry

In October 2018, the Special Master published a Notice of Inquiry in the Federal Register

seeking public comments on possible policy changes that the Special Master could consider to

27 28 C.F.R. §104.44.

28 2 U.S.C. §905(g)(1)(B). The exemption applies to any sequestration order on or after the date of enactment of the

Zadroga Reauthorization Act of 2015 (December 18, 2015).

29 Section 405(d)(2)(C)(ii) of the ATSSA (49 U.S.C. §40101 note).

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The September 11th Victim Compensation Fund (VCF)

ensure there is sufficient funding to administer and pay future VCF claims without exceeding the

$4.6 billion cap on Group B expenditures.30 The Special Master received 28 comments in

response to this Notice of Inquiry, of which 16 were relevant to the request for information on

possible VCF policy and procedure changes.31

Table 1. Projected VCF Program Costs

(from VCF’s reopening on October 3, 2011, through end of program authority—

Group A and Group B claims)

2019 Report

Historical

Data Model

Historical

Data and

Trend Model

2018 Report

Historical

Data Model

Historical

Data and

Trend Model

2017 Report

Historical

Data Model

Historical

Data and

Trend Model

in millions of dollars

Projected

Award Costsa

$10,064b

$11,660b

$7,032

$4,056

$7,083

Projected

Administrative

Costs

$251

$264

$226

Total

Projected

Costs

$10,315b

$11,911b

$7,295

$4,282

$7,309

Sources: September 11th Victim Compensation Fund, Seventh Annual Status Report and Third Annual Reassessment

of Policies and Procedures, February 2019, p. 41, https://www.vcf.gov/pdf/VCFStatusReportFeb2019.pdf; and earlier

versions from 2017 and 2018.

Notes: The historical data model is based on historical program data and the historical data and trend model

uses historical data augmented by recent trends in program participation. The 2018 report did not use the

historical data and trend model for projections.

a. Includes initial and revised awards.

b. Exceeds total available funding of $7.375 billion.

Projections of Future VCF Expenditures

In February 2019, the Special Master published her most recent annual assessment of VCF

policies and procedures.32 This report includes two sets of projections of future VCF benefit and

administrative costs. One projection is based on historical program data and another projection is

based on these historical data, augmented by data on recent program trends. These two models

were also used in the 2017 assessment, whereas the 2018 assessment only projected costs based

on historical program data.

As shown in Table 1, the Special Master projects under both models that total VCF program costs

by the end of the program will far exceed the $7.375 billion in available funding. This is the first

30 Department of Justice, “September 11th Victim Compensation Fund: Compensation of Claims,” 83 Federal Register

49946, October 3, 2018.

31 A summary of these public comments and the Special Master’s responses to these comments is provided as

Appendix A of the Special Master’s Seventh Annual Status Report and Third Annual Assessment of Policies and

Procedures, available online at https://www.vcf.gov/pdf/VCFStatusReportFeb2019.pdf.

32 September 11th Victim Compensation Fund, Seventh Annual Status Report and Third Annual Reassessment of

Policies and Procedures, February 15, 2019, https://www.vcf.gov/pdf/VCFStatusReportFeb2019.pdf.

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The September 11th Victim Compensation Fund (VCF)

time the Special Master projects that program funding will be insufficient to pay all VCF benefits

and administrative expenses.

On June 21, 2019, during testimony before the House Committee on the Judiciary, the Special

Master pointed to increases in death claims, cancer claims, and claims from non-responders have

played a role in driving projected benefit costs above the amount of available funding Congress

provided.33 The Special Master did not, however, break down how much of the cost increases can

be attributed to each of these three factors.

Death Claims

As of May 31, 2019, the Special Master has determined that 1,057 death claims are eligible for

the reopened VCF. Of these, award decisions based on economic and noneconomic loss have

been made in 856 cases.34 As a comparison, the original VCF paid awards in 2,880 cases of

death.35 Because there is a regulatory presumption of noneconomic loss of $250,000 for the

decedent and an additional $100,000 for the spouse and any dependents, noneconomic loss

awards in death cases have the potential to be larger than those in injury cases.

Since the VCF’s reauthorization in 2015, the number of eligible and awarded death cases has

increased significantly. For claims paid prior to reauthorization (Group A claims), awards were

paid in 17 death cases.36 Thus, in less than four years since reauthorization, there has been a

nearly 5,000% increase in death awards. Of the 839 death awards paid since reauthorization, 517

were awarded in the period between April 30, 2018, and April 30, 2019, with an additional 43

claims paid in May 2019. Through the end of May 2019, there has been an average of more than

35 new eligibility decisions and more than 48 new awards in death claims per month.37

Although the Special Master does not discuss the causes of the increases in death claims, the

nature of many of the compensable medical conditions, especially certain types of cancer with

low survival rates, means that many persons eligible for compensation from the VCF will likely

die as a result of their WTC-related health conditions, thus possibly making their families eligible

for death compensation.38

Cancer Claims

Cancers were first added to the VCF as compensable conditions in September 2012. Since then,

there have been 8,734 cases with at least one form of cancer determined to be eligible for the

VCF. As of the end of April 2019, eligible claims with at least one type of cancer made up 37% of

all eligible VCF claims.

33 Testimony of Special Master Rupa Bhattacharyya, in U.S. Congress, House Committee on the Judiciary,

Subcommittee on the Constitution, Civil Rights, and Civil Liberties, The Need to Reauthorize the September 11th

Victim Compensation Fund, 116th Cong., 1st sess., June 21, 2019.

34 September 11th Victim Compensation Fund, VCF Program Statistics, (as of May 31, 2019), June 5, 2019,

https://www.vcf.gov/pdf/VCFMonthlyReportMay2019.pdf.

35 Kenneth R. Feinberg, Final Report of the Special Master for the September 11th Victim Compensation Fund 2001,

Department of Justice, 2004, p. 23.

36 September 11th Victim Compensation Fund, Fifth Annual Status Report and Annual Reassessment of Policies and

Procedures, March 13, 2017, p. 8, https://www.vcf.gov/pdf/VCFStatusReportMar2017.pdf.

37 Congressional Research Service (CRS) analysis of VCF program data from various data reports available online at

https://www.vcf.gov/programstatsarchive.html.

38 A claim that has already been awarded benefits may be amended at any time if the circumstances of medical

condition, economic, or noneconomic loss change and additional compensation may be awarded. This can include

filing an amended claim after a previously paid claimant dies from a compensable condition.

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The September 11th Victim Compensation Fund (VCF)

As shown in Table 2, the most significant growth in cancer claims occurred shortly after cancers

were added to the list of WTC-eligible health conditions and also in the most recent year.

Between September 30, 2014, and December 31, 2015, the number of eligible claims with cancer

as the only compensable condition (cases that would not otherwise be eligible for the VCF if not

for the addition of cancer) increased 194% from 472 claims to 1,387 claims. This increase is

understandable and expected given that this was early in the period during which cancer claims

were first eligible for compensation. However, the recent increase in eligible cancer-only claims

as a percentage of all eligible claims is one of the factors that drove the projected program costs,

which were just below total available funds in the 2018 assessment, over the funding cap in the

2019 assessment. In 2018, the number of eligible cancer-only claims increased 58%. At the end of

2018, eligible cancer-only claims made up 18% of all eligible claims.

Table 2. Eligible Cancer-Only Claims and Total Claims

% Change in

Eligible CancerOnly Claims

from Previous

Report

Report Date

Total Eligible

Claims

Eligible CancerOnly Claims

Eligible CancerOnly Claims as %

of Total Eligible

Claims

September 30, 2014

8,517

472

5.54%

December 31, 2015

13,437

1,387

10.32%

193.86%

December 31, 2016

15,851

1,897

11.97%

36.77%

December 31, 2017

18,024

2,485

13.79%

31.00%

December 31, 2018

22,323

3,929

17.60%

58.11%

Source: Congressional Research Service (CRS) analysis of VCF program data from various annual status reports

available online at https://www.vcf.gov/programstatsarchive.html.

The increase in eligible cancer claims is notable for three reasons. First, no types of cancer were

compensable when the VCF was originally reopened in 2010 and no cancers were included in the

list of WTC-related health conditions created by Congress in the Zadroga Act. Cancers were

added to the list of covered conditions by the WTCHP administrator in two determinations made

in 2012 and 2013. These determinations resulted in more than 60 types of cancer covering nearly

every body system being compensable under the VCF.

Neither the VCF nor WTCHP statutes include any specific provisions requiring any follow-up or

continuous review of scientific evidence to determine if, in the nearly seven years since these

determinations were made, there is any additional evidence to support or refute including these

types of cancers in the list of WTC-related health conditions compensable under the VCF. The

GAO cited limitations on data available in 2012 as a reason that its scientific panel found the

WTCHP administrator’s use of a hazards-based rather than probability model to add cancers to

the list of WTC-related health conditions reasonable.39 Given the increases in the number of

persons receiving services from the WTCHP and developing cancer in the years since the 2012

and 2013 cancer determinations, there may be additional data to warrant reevaluating the list of

covered cancers or evaluating the likelihood of developing cancer after different types of

exposures in the aftermath of the September 11, 2001, terrorist attacks.

In addition, the VCF covers a wide range of persons from firefighters and police officers who

were the first responders to the attacks, to construction and other workers who were involved in

39 U.S. Government Accountability Office, World Trade Center Health Program: Approach Used to Add Cancers to

List of Covered Conditions was Reasonable but Could be Improved, GAO-14-606, July 2014.

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The September 11th Victim Compensation Fund (VCF)

debris removal, and to adults and children who were in lower Manhattan at the time of the

attacks, all of whom may have had different types and durations of exposure to toxic substances

in the aftermath of the attacks. Although the determination that a person’s health condition was

linked to his or her exposure in the aftermath of the September 11, 2001, terrorist attacks is based

on a combination of duration and nature of exposure, the list of covered conditions, including all

cancers except childhood cancer, applies equally to all persons with no accounting for individual

exposure experience.

Second, the VCF is a program of presumptive eligibility. Thus, when determining eligibility for

the VCF, controlling factors such as genetics, age, behaviors such as tobacco use, or exposure to

other toxins are not considered and the Special Master does not make a determination as to the

probability that a person’s exposure in the aftermath of the September 11, 2001, terrorist attacks

caused his or her cancer. Rather, the only requirement that a cancer or other health condition be

linked to a person’s exposure in the aftermath of the attacks is the WTCHP’s determination that

such exposure “is substantially likely to be a significant factor in aggravating, contributing to, or

causing the illness or health condition.”40 In addition, the WTCHP administrator did not consider

the likelihood or probability that any given cancer would occur based on the hazards experienced

in the aftermath of the September 11, 2001, attacks when cancers were added to list of WTCrelated health conditions.

This approach is different than the probability of causation model used for some cancer claims

under Part B of the Energy Employees Occupational Illness Compensation Program Act

(EEOICPA), in which the probability that a person’s cancer was caused by occupational exposure

to ionizing radiation must be 50% or greater to receive compensation.41 The VCF’s presumptive

eligibility model is also in contrast to the probability of causation model recommended by the

National Research Council Board on Radiation Effects Research42 to be used to determine

eligibility for benefits under the Radiation Exposure Compensation Act (RECA) for persons who

lived near the Nevada Test Site during atmospheric atomic weapons testing.43 However, the

presumptive eligibility model is used for other federal compensation programs, including

disability compensation for veterans exposed to radiation and Agent Orange.

Third, cancer claims have the potential to result in higher benefits than non-cancer claims. The

cap on noneconomic loss awards for cancer claims is $250,000 versus $90,000 for non-cancer

claims.

Non-responder Claims

Since it was reauthorized in 2015, the VCF has paid awards to an increasing number of nonresponders. For claims paid prior to reauthorization (Group A claims), awards to nonresponders—including those who participated in cleaning or maintenance work near one of the

crash sites or persons who lived in, worked in, attended school in, or were visiting lower

40 42 U.S.C. §300mm-22(a).

41 Part B of EEOICPA, codified at 42 U.S.C. §§7384l – 7384w-1, provides cash and medical benefits to certain former

workers in the development of atomic weapons with specific types of cancer. Workers who are not part of the

EEOICPA Special Exposure Cohort are eligible for EEOICPA benefits if it is determined that their cancers were “at

least as likely as not” (probability of causation of 50% or greater) to be related to their employment.

42 National Research Council, Board on Radiation Effects Research, Assessment of the Scientific Information for the

Radiation Exposure Screening and Education Program (Washington, DC: The National Academies Press, 2005).

43 For additional information on RECA, see CRS Report R43956, The Radiation Exposure Compensation Act (RECA):

Compensation Related to Exposure to Radiation from Atomic Weapons Testing and Uranium Mining, by Scott D.

Szymendera.

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The September 11th Victim Compensation Fund (VCF)

Manhattan between September 11, 2001, and May 30, 2002—made up 14% of total initial

compensation awards.44 As of the end of 2018, the percentage of total awards made to nonresponders had risen to 19% of total initial awards.45

Although the Special Master cites the increase in non-responder claims as one of the causes of the

increase in VCF benefit costs and the recent projection that program costs will exceed available

funding, limitations in the data reported by the VCF make analyzing this potential cost driver

difficult. In her congressional testimony, the Special Master states “At the time of Reauthorization

in December 2015, not quite 14% of all VCF awards were paid to non-responders. Today, just

about 38% of claims filed are from this population.”46 However, this is not a direct comparison,

as the Special Master is comparing data on awards with data on claims filed, regardless of

whether those claims result in awards without any additional information on the percentage of

claims filed that may result in awards. In addition, the data reported by the VCF in its annual

status reports are, according to the VCF, self-reported data. Finally, in each year’s data on

claimant categories, there are a number of cases listed as “no response.” Of the 20,981 initial

awards reported in the VCF’s most recent status report, for example, 370 cases, or 2% of total

awards, are listed in the “no response” category.47

Reductions of Future Awards

Because award costs under both models are projected to exceed the $7.375 billion in available

funding, in February 2019, the Special Master announced the following reductions in the amounts

of all future VCF awards for all cases pending as of February 25, 2019:



For all cases filed on or before February 1, 2019; the calculated award is to be

reduced by 50%;

For all cases that qualify for expedited processing because the claimant has a

terminal illness or significant financial hardship, the calculated award is to be

reduced by 50%; and

For all cases filed after February 1, 2019, the calculated award is to be reduced

by 70%.48

In all cases, the full amount of any offsets for collateral source payments are to continue to be

taken.

The award reductions are not to apply to appeals decisions initially issued before February 25,

2019. However, there will be scheduling adjustments for future appeals. For appeals of

noneconomic loss decisions, the VCF is to schedule appeals hearings only for cases involving the

most severe conditions, such as cancer, interstitial lung disease, and sarcoidosis. For all other

noneconomic loss and economic-loss cases, the VCF is not to schedule appeals hearings until

44 September 11th Victim Compensation Fund, Fifth Annual Status Report and Annual Reassessment of Policies and

Procedures, March 13, 2017, p. 9, https://www.vcf.gov/pdf/VCFStatusReportMar2017.pdf.

45 September 11th Victim Compensation Fund, Seventh Annual Status Report and Third Annual Reassessment of

Policies and Procedures, February 15, 2019, p. 16, https://www.vcf.gov/pdf/VCFStatusReportFeb2019.pdf.

46 Testimony of Special Master Rupa Bhattacharyya, in U.S. Congress, House Committee on the Judiciary,

Subcommittee on the Constitution, Civil Rights, and Civil Liberties, The Need to Reauthorize the September 11th

Victim Compensation Fund, 116th Cong., 1st sess., June 21, 2019.

47 September 11th Victim Compensation Fund, Seventh Annual Status Report and Third Annual Reassessment of

Policies and Procedures, February 15, 2019, p. 16, https://www.vcf.gov/pdf/VCFStatusReportFeb2019.pdf.

48 September 11th Victim Compensation Fund, Determination of Funding Insufficiency: Questions and Answers,

February 2019, https://www.vcf.gov/pdf/VCFFIQandA.pdf.

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The September 11th Victim Compensation Fund (VCF)

after December 18, 2020. These schedule changes are designed to ensure that there is sufficient

funding to pay increased noneconomic loss determinations made on appeal for the most severe

conditions.

Potential VCF Reauthorization in the 116th Congress

The VCF is scheduled to sunset on December 18, 2020. The 116th Congress faces the question of

whether to reauthorize the program or let it expire. On June 12, 2019, the House Committee on

the Judiciary ordered that H.R. 1327, the Never Forget the Heroes: Permanent Authorization of

the September 11th Victim Compensation Fund Act, be reported. Identical legislation, S. 546, is

pending committee action in the Senate.

This reauthorization legislation includes the following major components:



authorization for the VCF through FY2090, with a deadline of October 1, 2089,

to file claims;49

removal of the cap on VCF funding;

appropriations of “such sums as may be necessary” for the VCF for each fiscal

year through FY2090;

payment of the difference between the full award and the actual amount received

for all persons who received reduced awards due to the Special Master’s actions;

authority for the Special Master to exceed the limit on noneconomic loss if it is

determined that a person’s pain and suffering is of such severity as to make the

award “insufficiently compensatory”; and

a cost of living adjustment, to be made every five years, to the maximum amount

of annual income permitted to be considered by the Special Master when

determining economic loss (currently $200,000).

The reauthorization legislation would not make any changes to the basic eligibility for VCF

awards. The legislation also would not specifically address the three drivers of increased VCF

costs that the Special Master identified in her 2019 congressional testimony: (1) increases in

death claims, (2) cancer claims, and (3) claims from non-responders. However, because this

legislation would provide full funding for the VCF not subject to annual appropriations, any

increases in program costs would not result in the VCF having insufficient funding to pay all

benefits. The Congressional Budget Office has estimated that this legislation, if enacted, would

result in $6.785 billion in direct spending on benefits and administration between FY2019 and

FY2024 and $10.180 billion in spending between FY2019 and FY2029.50

House Passage of Reauthorization Legislation

On July 12, 2019, the House of Representatives passed H.R. 1327 with the following

amendments:

49 This would bring the VCF in line with the WTCHP, which is currently authorized through FY2090.

50 Congressional Budget Office, H.R. 1327, Never Forget the Heroes: Permanent Authorization of the September 11 th

Victim Compensation Fund Act: As Ordered Reported by the House Committee on the Judiciary on June 12, 2019,

Cost Estimate, July 11, 2019, at https://www.cbo.gov/publication/55435.

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

the bill’s title was changed to the “Never Forget the Heroes: James Zadroga, Ray

Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim

Compensation Fund Act”;



the appropriations of “such sums as may be necessary” for the VCF for each

fiscal year through FY2090 is changed to include each fiscal year through

FY2092, and the deadline for filing claims is changed from October 1, 2089, to

October 1, 2090;

the authority for the Special Master to exceed the limit on noneconomic loss is

changed from requiring a determination that a person’s pain and suffering is of

such severity as to make the award “insufficiently compensatory” to a

determination that the claim “presents special circumstances”;

the original bill’s requirement that the Special Master apply a cost-of-living

adjustment to the maximum amount of annual income permitted to be considered

when determining economic loss (currently $200,000) every five years was

replaced with a provision requiring the Special Master to “periodically” adjust

the limit “to account for inflation”;

a provision was added permitting the Attorney General to appoint up to two

Deputy Special Masters and providing that the Special Master and the deputies

serve at the pleasure of the Attorney General; and

a provision was added specifying that the legislation’s budgetary effects shall not

be entered on the statutory or Senate PAYGO scorecards, thus making the

legislation exempt from PAYGO requirements that new legislative spending not

increase the deficit.51



51 For additional information on the PAYGO process and rules, see CRS Report R41157, The Statutory Pay-As-You-Go

Act of 2010: Summary and Legislative History, and CRS Report RL31943, Budget Enforcement Procedures: The

Senate Pay-As-You-Go (PAYGO) Rule.

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The September 11th Victim Compensation Fund (VCF)

Appendix. September 11th Victim Compensation

Fund Awards and Amounts

Table A-1. September 11th Victim Compensation Fund (VCF) Awards

(from VCF’s reopening on October 3, 2011, through December 31, 2018—Group A and Group B claims)

Compensation Awarded

Number

Amount

Initial Awards

20,981

$4,291,381,834.60

Revised Awardsa

5,603

$509,124,835.90

Total Awards

26,584

$4,800,506,670.50

Source: September 11th Victim Compensation Fund, Seventh Annual Status Report and Third Annual Reassessment

of Policies and Procedures, February 15, 2019, p. 15, at https://www.vcf.gov/pdf/VCFStatusReportFeb2019.pdf.

Notes: Award amounts are after offsets for benefits from collateral sources such as life insurance.

a. Revised Awards include compensation awarded after an amendment or appeal of an initial decision.

Table A-2. September 11th Victim Compensation Fund (VCF) Award Amounts

(from VCF’s reopening on October 3, 2011, through December 31, 2018—Group A and Group B claims)

Compensation Awards

Total Awards

Personal Injury Claims

Death Claims

$4,408,575,405.21

$391,931,265.29

Highest Award Amount

$4,133,466.00

$3,687,255.65

Lowest Award Amounta

$458.13

$4,124.70

$227,375.08

$682,807.08

Mean Award Amount

Source: September 11th Victim Compensation Fund, Seventh Annual Status Report and Third Annual Reassessment

of Policies and Procedures, February 15, 2019, p. 15, at https://www.vcf.gov/pdf/VCFStatusReportFeb2019.pdf.

Notes: Award amounts are after offsets for benefits from collateral sources such as life insurance.

a. Does not include awards of $0.00 due to total reduction of award due to offsets or because the claimant

was already fully compensated by an earlier VCF award.

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The September 11th Victim Compensation Fund (VCF)

Table A-3. September 11th Victim Compensation Fund (VCF) Compensation Paid by