NYLJ: NYS Law to Help Compensate 9/11 Survivors

Article by Troy Rosasco, Published in the New York Law Journal

Under the new law, compensation may be available to those who worked or volunteered in construction, clean-up, and debris removal; as well as people who lived, worked, or went to school in the exposure zone in the weeks following the Sept. 11, 2001 terrorist attacks in New York City.

On Monday, Gov. Kathy Hochul signed the 9/11 Notice Act (A75B)/S2946B) into law. The Act was passed unanimously in the State Assembly (146-0) and the State Senate (62-0). The new Act amends the General Business Law by adding section 399-rr. [i]

The purpose of this critical legislation is to promote awareness and notify both past and current downtown Manhattan and northern Brooklyn civilian workers who were in the 9/11 Exposure Zones of potential eligibility for both compensation and medical care under two separate federal programs: 1) the September 11th Victim Compensation Fund (“VCF”) and 2) the World Trade Center Health Program (“WTCHP”).

The September 11th Victim Compensation Fund (VCF) provides compensation to individuals (or a personal representative of a deceased individual) who were present at the World Trade Center or the surrounding New York City Exposure Zone (generally below Canal Street and Clinton Street in Lower Manhattan); the Pentagon crash site; and the Shanksville, Pennsylvania crash site, at some point between September 11, 2001, and May 30, 2002, and who have since been diagnosed with a 9/11-related illness. These illnesses can include over 69 types of cancer and various aerodigestive disorders.

It is important to know that the VCF is not limited to first responders. Compensation is also available to those whoworked or volunteered in construction, clean-up, and debris removal; as well as people who lived, worked, or went toschool in the exposure zone.

Unfortunately, many civilian survivors continue to be unaware of their eligibility for these important benefits. In my practice, not a day goes by when an eligible civilian worker, resident or student tells me that they thought 9/11 benefits were only available for first responders, such as hero firefighters, police and other rescue and recovery workers. The essential problem facing both the VCF and the WTCHP programs today is the fact that it is estimated by both the Congressional Budget Office and New York City that the number of eligible civilian survivors is far greater than the number of eligible first responders. Hopefully, the notifications and outreach required by new 9/11 Notice Act will help remedy this lack of knowledge so that all 9/11 victims can seek and receive the medical care and compensation they deserve.

Enrollment statistics in the two programs bear out this current problem. According to the most recent statistics as of Aug. 31, from the VCF, there have been a total of 85,475 personal injury and death claims submitted for compensation. Of that cumulative total, 45,810 have been submitted by first responders. By comparison, only 38,746 claims have been submitted by Survivors, which include civilian lower Manhattan workers, downtown residents, and students.

Similarly, according to the most recent statistics as of Aug. 31, 2023, from WTCHP, there were a total of 125,494individuals enrolled in the Health Program receiving lifetime medical care for 9/11-related medical conditions. First responders in the WTC Health Program total 85,954, while survivors total just 39,540. At a minimum, with proper knowledge and outreach, these numbers should potentially be reversed and participation in both programs should be greater for civilian survivors than first responders.

By our community outreach with the 9/11 community and speaking with 9/11 civilian survivors every day, we know first-hand that the low rate of participation of survivors in the 9/11 programs is due mainly due to lack of knowledge that these programs even exist and that they are available to the 9/11 civilian population.

It is this lack of awareness that the 9/11 Notice Act seeks to remedy. The new law specifically requires that the “[New York State] Department of Economic Development shall, in consultation with the Department of Labor and any other appropriate state or municipal entity, develop rules and regulations necessary to promote awareness and notification to any past or present businesses and their employees which operated within the New York City disaster area during the eligible time period of their potential eligibility under the September eleventh victim compensation fund and the World Trade Center health program. This subdivision applies to both current and former employees. The Department of Economic Development shall determine the most appropriate message and format that the state agencies may use to assist potentially eligible employers and employees with such awareness or notification. The Department of Economic Development shall be authorized to consult with the Special Master of the September Eleventh Victim Compensation Fund and the program administrator of the World Trade Center Health Program relating to matters including, but not limited to, messaging and format to be used in the promotion of the September Eleventh Victim Compensation Fund and the World Trade Center Health Program and if the messages should be tailored for the specific geographic areas covered by the World Trade Center Health Program in a different manner than those covered by both the World Trade Center Health Program and the September Eleventh Victim Compensation Fund. This act will take effect on the two hundred seventieth (277th) day after it shall have become a law.”

It is presumed that the effectuation date on the 277th day after becoming law was carefully considered by both the legislative and executive branches such as the Department of Economic Development. The rules and regulations required, and the consideration of the proper form and timing of notice may place a large burden on past and present downtown Manhattan employers to be part of the notification process. Importantly, the 9/11 Notice Act also specifically requires the state to consult with the 9/11 Special Master regarding the format of messaging and notifications.
Thankfully, the Justice Department recently appointed Allison Turkel, a native New Yorker and former prosecutor for the Manhattan District Attorney’s Office, as the new special master of the September 11 Victim Compensation Fund. Having recently met with her regarding her goals for the future of the VCF, there is no doubt she is a “hands-on” administrator and advocate for all 9/11 victims who will take all appropriate steps with New York State to make sure the9/11 Notice Act meets its goals in coordination with the VCF’s existing and extensive outreach efforts.

By way of background, the original VCF was created on Sept. 22, 2001, to provide compensation for any individual (or a personal representative of a deceased individual) who suffered physical harm or was killed as a result of the terrorist-related aircraft crashes of 9/11 or the debris removal efforts that took place in the immediate aftermath of those crashes. A total of 2,997 individuals died on 9/11 and in the immediate aftermath because of the terrorist attacks. The original VCF operated from 2001-04 and was administered by the then special master Kenneth Feinberg. Feinberg’s experiences and struggles of awarding appropriate compensation to 9/11 victims’ families was recently documented in the film “Worth”, with Michael Keaton starring as Feinberg. Today, the number of deaths of victims related to 9/11 toxic exposures outnumber the number of deaths on that fateful day. Tragically, this number continues to grow.

On Jan. 2, 2011, President Barack Obama signed into law the James Zadroga 9/11 Health and Compensation Act of2010. The Zadroga Act reactivated the VCF and established the World Trade Center Health Program to provide medical care to both survivors, including downtown Manhattan workers, residents and students below Houston Street and parts of Brooklyn and first responders, eligible firefighters and related personnel, law enforcement officers, and rescue, recovery, and cleanup workers who responded to the 9/11 in New York City, at the Pentagon, and in Shanksville, Pennsylvania. Finally, on July 29, 2019, President Donald Trump signed into law H.R. 1327, The Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund.

This made the 9/11 Victim Compensation permanent until 2090.

In the early days after 9/11 and continuing for months afterward victims were exposed to cancer-causing residual materials—indoors and outside—as well as exposure to toxic gases, smoke, vapors, and combustion by-products from continuing fires. These deadly toxins included asbestos, benzene, formaldehyde, silica, metals, pulverized concrete, pulverized glass, and 90,000 liters of jet fuel after the buildings came down.

Fires at or near Ground Zero and 7 World Trade Center burned continuously through the end of December 2001 with continued flare-ups in 2002, releasing unknown amounts of other cancer-causing agents. These contaminants remained in Lower Manhattan and parts of Brooklyn for months after 9/11. Sadly, individuals who returned to work, residents, students, and others had potential for acute exposures after the then-head of the Environmental Protection Administration told them publicly the air in lower Manhattan was safe to breathe.

The 9/11 Notice Act is a welcome and necessary contribution from both the New York State Legislature and Governor to aid those who continue to fall victim to the 9/11 attacks and its aftermath today and into the foreseeable future.