PART 104—SEPTEMBER 11TH VICTIM COMPENSATION FUND Authority: Title IV of Pub. L. 107-42, 115 Stat. 230, 49 U.S.C. 40101 note; Title II of Pub. L. 111-347, 124 Stat. 3623; Title IV of Pub. L. 114-113, 129 Stat. 2242. Source: 81 FR 38941, June 15, 2016, unless otherwise noted. Subpart A—General; Eligibility § 104.1 Purpose. This part implements the provisions of the September 11th Victim Compensation Fund of 2001, Title IV of Public Law 107-42, 115 Stat. 230 (Air Transportation Safety and System Stabilization Act), as amended by the James Zadroga 9/11 Health and Compensation Act of 2010, Title II of Public Law 111-347, and as amended by the James Zadroga 9/11 Victim Compensation Fund Reauthorization Act, Division O, Title IV of Public Law 114-113 (the “Act”) to provide full compensation to eligible individuals who were physically injured (as defined herein) as a result of the terrorist-related aircraft crashes of September 11, 2001, or the rescue and recovery efforts during the immediate aftermath of such crashes or debris removal during the immediate aftermath of those crashes, and to the “personal representatives” of those who were killed as a result of the crashes or the rescue and recovery efforts during the immediate aftermath of such crashes or debris removal during the immediate aftermath of such crashes. All compensation provided through the Victim Compensation Fund will be on account of personal physical conditions, physical injuries or death. The provisions of these regulations that relate to filing and evaluation of claims, determination of eligibility, and determination of compensable loss shall apply to all claims that are defined as Group B claims in the Act and in these regulations. Eligibility and compensation for Group A claims has been determined prior to the effective date of these regulations, pursuant to the regulations previously in effect. § 104.2 Eligibility definitions and requirements. (a) Categories of claims Group A claims. (2) Group B claims. (b) Eligible claimants. (1) Individuals present at a 9/11 crash site at the time of or in the immediate aftermath of the terrorist-related aircraft crashes and who suffered physical harm, as defined herein, as a direct result of the crashes or the rescue and recovery efforts or debris removal; (2) The Personal Representatives of deceased individuals aboard American Airlines flights 11 or 77 and United Airlines flights 93 or 175; and (3) The Personal Representatives of individuals who were present at a 9/11 crash site at the time of or in the immediate aftermath of the crashes and who died as a direct result of the terrorist-related aircraft crash or the rescue and recovery efforts during the immediate aftermath of such crashes or the debris removal during the immediate aftermath of such crashes. (4) The term eligible claimants does not include any individual or representative of an individual who is identified to have been a participant or conspirator in the terrorist-related crashes of September 11. (c) Immediate aftermath. (d) Physical harm. (1) A WTC-Related Physical Health Condition; or (2) A physical injury to the body resulting from the 9/11 attacks that was treated by a medical professional within a reasonable time from the date of discovering such harm and is verifiable by medical records created by or at the direction of the medical professional who provided the medical care contemporaneously with the care; but (3) Not including any Mental Health Condition. (e) Mental Health Condition. (f) Personal Representative. (g) WTC Health Program. (h) WTC Program Administrator. (i) WTC-Related Physical Health Condition. (j) 9/11 crash site. (1) The World Trade Center site, Pentagon site, and Shanksville, Pennsylvania site; or (2) The buildings or portions of buildings that were destroyed as a result of the terrorist-related airplane crashes of September 11, 2001; or (3) 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 (4) Any area related to, or along, routes of debris removal, such as barges and Fresh Kills. § 104.3 Other definitions. (a) Beneficiary. (b) Dependents. (1) The claimant demonstrates that a minor child of the victim was born or adopted on or after January 1 of the year of the victim's death; (2) Another person became a dependent in accordance with then- applicable law on or after January 1 of the year of the victim's death; or (3) The victim was not required by law to file a Federal income tax return for the year prior to the year of the victim's death. (c) Spouse. (1) The victim was married or divorced in accordance with applicable state law on or after January 1 of the year of the victim's death; or (2) The victim was not required by law to file a Federal income tax return for the year prior to the year of the victim's death. (3) The Special Master shall identify as the spouse of a victim any same-sex spouse who was lawfully married to the victim under applicable state law. (d) The Act. (e) Victim. (f) Substantially Complete. § 104.4 Personal Representative. (a) In general. (1) An individual appointed by a court of competent jurisdiction as the Personal Representative of the decedent or as the executor or administrator of the decedent's will or estate. (2) In the event that no Personal Representative or executor or administrator has been appointed by any court of competent jurisdiction, and such issue is not the subject of pending litigation or other dispute, the Special Master may, in her discretion, determine that the Personal Representative for purposes of compensation by the Fund is the person named by the decedent in the decedent's will as the executor or administrator of the decedent's estate. In the event no will exists, the Special Master may, in her discretion, determine that the Personal Representative for purposes of compensation by the Fund is the first person in the line of succession established by the laws of the decedent's domicile governing intestacy. (b) Notice to beneficiaries. (2) Personal delivery or transmission by certified mail, return receipt requested, shall be deemed sufficient notice under this provision. The claim forms shall require that the purported Personal Representative certify that such notice (or other notice that the Special Master deems appropriate) has been given. In addition, as provided in § 104.21(b)(5) of this part, the Special Master may publish a list of individuals who have filed Eligibility Forms and the names of the victims for whom compensation is sought, but shall not publish the content of any such form. (c) Objections to Personal Representatives. (d) Disputes as to identity. § 104.5 Foreign claims. In the case of claims brought by or on behalf of foreign citizens, the Special Master may alter the requirements for documentation set forth herein to the extent such materials are unavailable to such foreign claimants. § 104.6 Amendments to this part. All claims will be processed in accordance with the current provisions of this part. Subpart B—Filing for Compensation § 104.21 Presumptively covered conditions. (a) In general. (b) Updates. (c) Conditions other than presumptively covered conditions. (1) Has a physical injury to the body that resulted from the terrorist-related air crashes of September 11, 2001 or rescue and recovery or debris removal efforts during the immediate aftermath of such crashes or presents extraordinary circumstances; and (2) Is otherwise eligible for payment. [81 FR 38941, June 15, 2016, as amended at 81 FR 60620, Sept. 2, 2016] § 104.22 Filing for compensation. (a) Compensation form; “filing.” (b) Eligibility Form. (1) The Eligibility Form may require that the claimant certify that he or she has dismissed any pending lawsuit seeking damages as a result of the terrorist-related airplane crashes of September 11, 2001, or for damages arising from or related to debris removal (except for actions seeking collateral source benefits) no later than January 2, 2011 and that there is no pending lawsuit brought by a dependent, spouse, or beneficiary of the victim. (2) The Special Master may require as part of the notice requirement pursuant to § 104.4(b) that the Personal Representative of the deceased individual provide copies of a designated portion of the Eligibility Form to the immediate family of the decedent (including, but not limited to, the spouse, former spouses, children, other dependents, and parents), to the executor, administrator, and beneficiaries of the decedent's will, and to any other persons who may reasonably be expected to assert an interest in an award or to have a cause of action to recover damages relating to the wrongful death of the decedent. (3) The Eligibility Form may require claimants to provide the following proof: (i) Proof of death: Death certificate or similar official documentation; (ii) Proof of presence at site: Documentation sufficient to establish presence at a 9/11 crash site, which may include, without limitation, a death certificate, proof of residence, such as a lease or utility bill, records of employment or school attendance, contemporaneous medical records, contemporaneous records of federal, state, city or local government, a pay stub, official personnel roster, site credentials, an affidavit or declaration of the decedent's or injured claimant's employer, or other sworn statement (or unsworn statement complying with 28 U.S.C. 1746) regarding the presence of the victim; (iii) Proof of physical harm: Certification of a conclusion by the WTC Health Program that the claimant suffers from a WTC-Related Physical Health Condition and is eligible for treatment under the WTC Health Program, or verification by the WTC Program Administrator that the claimant suffers from a WTC-Related Physical Health Condition, or other credible medical records from a licensed medical professional. (iv) Personal Representative: Copies of relevant legal documentation, including court orders; letters testamentary or similar documentation; proof of the purported Personal Representative's relationship to the decedent; copies of wills, trusts, or other testamentary documents; and information regarding other possible beneficiaries as requested by the Eligibility Form; (v) Any other information that the Special Master deems necessary to determine the claimant's eligibility. (vi) The Special Master may also require waivers, consents, or authorizations from claimants to obtain directly from third parties tax returns, medical information, employment information, or other information that the Special Master deems relevant in determining the claimant's eligibility or award, and may request an opportunity to review originals of documents submitted in connection with the Fund. (vii) The Special Master may publish a list of individuals who have filed Eligibility Forms on behalf of a deceased victim and the names of the deceased victims for whom compensation is sought, but shall not publish the content of any such form. (c) Personal Injury Compensation Form and Death Compensation Form. (1) The Special Master may ask claimants to submit certain tax returns or tax transcripts for returns that the Special Master deems appropriate for determination of an award. The Special Master may also require waivers, consents, or authorizations from claimants to obtain directly from third parties medical information, employment information, or other information that the Special Master deems relevant to determining the amount of any award. (2) Claimants may attach to the `Personal Injury Compensation Form” or “Death Compensation Form” any additional statements, documents or analyses by physicians, experts, advisors, or any other person or entity that the claimant believes may be relevant to a determination of compensation. (d) Submission of a claim. (e) Amendment of claims. (1) An injury or loss that the claimant had not suffered (or did not reasonably know the claimant suffered) at the time the claimant filed the previous claim; (2) A condition that the Special Master has identified and published in accordance with 104.21(a), since the time the claimant filed the previous claim, as a presumptively covered condition; (3) An injury for which the claimant was previously compensated by the Fund, but only if that injury has substantially worsened, resulting in damages or loss that was not previously compensated. (f) Provisions of information by third parties. Subpart C—Claim Intake, Assistance, and Review Procedures § 104.31 Procedure for claims evaluation. (a) Initial review. (b) Procedure. (c) Multiple claims from the same family. § 104.32 Eligibility review. Any claimant deemed ineligible by the Claims Evaluator may appeal that decision to the Special Master or her designee by filing an eligibility appeal within 30 days on forms created by the office of the Special Master. § 104.33 Hearing. (a) Conduct of hearings. (b) Location and duration of hearings. (c) Witnesses, counsel, and experts. (d) Waivers. (e) Award Appeals. (1) There was an error in determining the presumptive award, either because the claimant's individual criteria were misapplied or for another reason; or (2) The claimant presents extraordinary circumstances not adequately addressed by the presumptive award. (f) Determination. § 104.34 Publication of awards. The Special Master reserves the right to publicize the amounts of some or all of the awards, but shall not publish the name of the claimants or victims that received each award. If published, these decisions would be intended by the Special Master as general guides for potential claimants and should not be viewed as precedent binding on the Special Master or her staff. § 104.35 Claims deemed abandoned by claimants. The Special Master and her staff will endeavor to evaluate promptly any information submitted by claimants. Nonetheless, it is the responsibility of the claimant to keep the Special Master informed of his or her current address and to respond within the duration of this program to requests for additional information. Claims outstanding because of a claimant's failure to complete his or her filings shall be deemed abandoned. Subpart D—Amount of Compensation for Eligible Claimants § 104.41 Amount of compensation. As provided in section 405(b)(1)(B)(ii) of the Act, in determining the amount of compensation to which a claimant is entitled, the Special Master shall take into consideration the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant. The individual circumstances of the claimant may include the financial needs or financial resources of the claimant or the victim's dependents and beneficiaries. As provided in section 405(b)(6) of the Act, the Special Master shall reduce the amount of compensation by the amount of collateral source compensation the claimant (or, in the case of a Personal Representative, the victim's beneficiaries) has received or is entitled to receive as a result of the terrorist- related aircraft crashes of September 11, 2001. In no event shall a Group B claim receive an amount of compensation that is greater than the amount of loss determined pursuant to these regulations less the amount of any collateral source compensation that the claimant has received or is entitled to receive for such claim as a result of the terrorist related aircraft crashes of September 11, 2001 for the Group B claim. § 104.42 Applicable state law. The phrase “to the extent recovery for such loss is allowed under applicable state law,” as used in the statute's definition of economic loss in section 402(5) of the Act, is interpreted to mean that the Special Master is not permitted to compensate claimants for those categories or types of economic losses that would not be compensable under the law of the state that would be applicable to any tort claims brought by or on behalf of the victim. § 104.43 Determination of presumed economic loss for decedents. In reaching presumed determinations for economic loss for Personal Representatives bringing claims on behalf of eligible decedents, the Special Master shall consider sums corresponding to the following: (a) Loss of earnings or other benefits related to employment. (b) Medical expense loss. i.e., (c) Replacement services loss. (d) Loss due to death/burial costs. (e) Loss of business or employment opportunities. § 104.44 Determination of presumed noneconomic losses for death for claims on behalf of decedents. The presumed non-economic losses for an eligible death shall be $250,000 plus an additional $100,000 for the spouse and each dependent of the deceased victim. Such presumed losses include a noneconomic component of replacement services loss. § 104.45 Determination of presumed economic loss for injured claimants. In reaching presumed determinations for economic loss for claimants who suffered an eligible physical harm (but did not die), the Special Master shall consider sums corresponding to the following: (a) Loss of earnings or other benefits related to employment. (1) Disability; in general. In evaluating claims of disability, the Special Master will, in general, make a determination regarding whether the claimant is capable of performing his or her usual profession in light of the eligible physical conditions. The Special Master may require that the claimant submit an evaluation of the claimant's disability and ability to perform his or her occupation prepared by medical experts. (2) Total permanent disability. With respect to claims of total permanent disability, the Special Master may accept a determination of disability made by the Social Security Administration as evidence of disability without any further medical evidence or review. The Special Master may also consider determinations of permanent total disability made by other governmental agencies or private insurers in evaluating the claim. (3) Partial disability. With respect to claims of partial disability, the Special Master may consider evidence of the effect of the partial disability on the claimant's ability to perform his or her usual occupation as well as the effect of the partial disability on the claimant's ability to participate in usual daily activities. (b) Medical Expense Loss. i.e., (c) Replacement Services. (d) Loss of business or employment opportunities. (e) Determination of Noneconomic Loss for Claimants Who Have a WTC-Related Physical Condition and Who Are Found Eligible for Economic Loss. § 104.46 Determination of presumed noneconomic losses for injured claimants The Special Master may determine the presumed noneconomic losses for claimants who suffered physical harm (but did not die) by relying upon the noneconomic losses described in § 104.44 and adjusting the losses based upon the extent of the victim's physical harm. The presumed noneconomic loss for a claim based on any single type of cancer shall not exceed $250,000 and the presumed noneconomic loss for a claim based on any single type of non-cancer condition shall not exceed $90,000. Such presumed losses include any noneconomic component of replacement services loss. The Special Master has discretion to consider the effect of multiple cancer conditions or multiple cancer and non-cancer conditions in computing the total noneconomic loss. § 104.47 Collateral sources. (a) Payments that constitute collateral source compensation. (b) Payments that do not constitute collateral source compensation. (1) The value of services or in-kind charitable gifts such as provision of emergency housing, food, or clothing; and (2) Charitable donations distributed to the beneficiaries of the decedent, to the injured claimant, or to the beneficiaries of the injured claimant by privately funded charitable entities; provided however, that the Special Master may determine that funds provided to victims or their families through a privately funded charitable entity constitute, in substance, a payment described in paragraph (a) of this section. (3) Tax benefits received from the Federal government as a result of the enactment of the Victims of Terrorism Tax Relief Act. Subpart E—Payment of Claims § 104.51 Payments to eligible individuals. (a) Payment date. (1) The claimant accepts the presumed award; or (2) A final award for the claimant is determined after a hearing on appeal. (b) Failure to accept or appeal presumed award. (c) Payment of Group A claims. (d) Payment of Group B claims. (e) Prioritization. (f) Reassessment. § 104.52 Distribution of award to decedent's beneficiaries. The Personal Representative shall distribute the award in a manner consistent with the law of the decedent's domicile or any applicable rulings made by a court of competent jurisdiction. The Special Master may require the Personal Representative to provide to the Special Master a plan for distribution of any award received from the Fund before payment is authorized. Notwithstanding any other provision of these regulations or any other provision of state law, in the event that the Special Master concludes that the Personal Representative's plan for distribution does not appropriately compensate the victim's spouse, children, or other relatives, the Special Master may direct the Personal Representative to distribute all or part of the award to such spouse, children, or other relatives. Subpart F—Limitations § 104.61 Limitation on civil actions. (a) General. (b) Pending actions. (c) Settled actions. § 104.62 Time limit on filing claims. (a) In general. Group B claims. (1) In the case that the individual knew (or reasonably should have known) before October 3, 2011, that the individual suffered a physical harm or died as a result of the terrorist-related aircraft crashes of September 11, 2001, or as a result of debris removal, and is eligible to file a claim under this part as of October 3, 2011, the individual or representative of such individual as appropriate may file a claim not later than October 3, 2013. (2) In the case that the individual first knew (or reasonably should have known) on or after October 3, 2011, that the individual suffered a physical harm or died or in the case that the individual became eligible to file a claim under this part on or after that date, the individual or representative of such individual as appropriate may file a claim not later than the last day of the 2-year period beginning on the date that the individual or representative first knew (or should have known) that the individual both suffered from such harm and was eligible to file a claim under this title, but in no event beyond December 18, 2020. (b) Determination by Special Master. [81 FR 38941, June 15, 2016, as amended at 81 FR 60620, Sept. 2, 2016] § 104.63 Subrogation. Compensation under this Fund does not constitute the recovery of tort damages against a third party nor the settlement of a third party action, and the United States shall be subrogated to all potential claims against third party tortfeasors of any victim receiving compensation from the Fund. For that reason, no person or entity having paid other benefits or compensation to or on behalf of a victim shall have any right of recovery, whether through subrogation or otherwise, against the compensation paid by the Fund. Subpart G—Measures To Protect the Integrity of the Compensation Program § 104.71 Procedures to prevent and detect fraud. (a) Review of claims. (1) Verify, authenticate, and audit claims; (2) Analyze claim submissions to detect inconsistencies, irregularities, duplication, and multiple claimants; and (3) Ensure the quality control of claims review procedures. (b) Quality control. (c) False or fraudulent claims. Subpart H—Attorney Fees § 104.81 Limitation on attorney fees. (a) In general In general. (2) Certification. (b) Limitation In general. (2) Exception. (c) Discretion to lower fee.