Zadroga law 9/11 claims process too complex, advocates say

John Feal, 46, of Nesconset, shown on Sept.

John Feal, 46, of Nesconset, shown on Sept. 26, 2013. Feal is the founder of the 9/11 responders advocacy group FealGood Foundation. (Credit: Brittany Wait)

More than half of the claims submitted to the September 11 Victim Compensation Fund remain incomplete, the result of a process that advocates and lawyers say had been too labor-intensive.

And although the pace of claims awarded has picked up, a report released last week by Special Master Sheila Birnbaum said about 3.6 percent of responders who have filed eligibility forms have received an award. That's up from 2.6 percent in January and about 1 percent in November.

John Feal, founder of the 9/11 responders advocacy group FealGood Foundation, said that while the new numbers "show improvement . . . we want everyone to know we have much more work to do so that the VCF meets its goal and helps ease the financial burden of yesterday's heroes."


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Of the eligibility claims submitted, more than half cannot be decided now, according to the report, because they are missing documentation. Once a claim is deemed eligible, the fund reviews the responder's compensation form to determine how much money he or she should get. Of those claims found eligible, little more than a third have submitted compensation forms, the report said.

Birnbaum, in a message posted on the fund's website, said "our biggest challenge to date has not been making decisions on complete forms, but rather the fact that many of the submissions we receive are incomplete."

The report said that as of the end of March, 13,863 had submitted eligibility forms with the $2.775 billion fund established under the federal James Zadroga 9/11 Health and Compensation Act of 2010. Of those, 502 decisions have been rendered and a total of $194,608,715.94 has been awarded.

The fund was set up to compensate responders suffering from an array of diseases associated with the attacks or the cleanup, from respiratory diseases to digestive problems to certain cancers. In February, the government proposed adding four more cancers to the list of about 60 cancers already covered -- pancreatic, cervical, testicular and brain cancers. A final rule is expected Monday.

Under the law, $875 million of the fund can be paid out in the first five years of the program; the rest may be paid in 2016, when funding ends.

Advocates and lawyers representing responders have complained that the amount and type of documentation required almost 13 years after Sept. 11, 2001, has been onerous and the process needlessly complex.

"The ease of application and process for obtaining benefits was totally misleading," said Robert Towsky of law firm Andrea & Towsky in Garden City. "It was sold to the public as a simple, user-friendly process and it is anything but."

John P. Dearie, an attorney in Manhattan representing about 500 responders, agreed. "I think it would be fair to say that most of the first two years after the VCF opened in October 2011, there was a lot left to be desired," said Dearie, who said about 25 of his clients so far have gotten awards. "I think it has improved from that admittedly low point."

To help simplify the process, Birnbaum said, she has met with advocates and lawyers to both explain it and solicit their advice.

"Thanks in part to many of your efforts to help us identify ways to streamline the application process, we've seen a 20 percent increase in the number of complete eligibility forms and a 67 percent increase in the number of compensation forms ready for review," she said.

She also announced additions and changes in her staff: Deborah Greenspan, deputy special master, will now also be chief executive, and Nell McCarthy, a former deputy director of Cabinet Affairs at the White House, was also named a deputy special master who will focus on "operational management of the fund." Both are to focus on improving the "efficacy of the overall process," she said.

Advocates and lawyers had long worried that Birnbaum -- in a stated attempt to keep administrative costs to a minimum so that the money could be used for awards -- didn't have sufficient staff to process claims, so they welcomed the changes.

About 90 people are now working for the VCF and it can add contractors as needed, said a spokeswoman for the Department of Justice, which oversees the fund. That's up from about 75 in November.

Benjamin Chevat, executive director of the 9/11 Health Watch in Manhattan, a nonprofit formed by unions, called the changes "promising."

"While the updated program statistics show there have been improvements in the numbers of processed claims and an increase in the number of final determinations, it's especially encouraging that the special master is redoubling her efforts to speed determinations and resolve cases," he said.

Michael Barasch of Barasch McGarry Salzman & Penson in Manhattan, who with Noah Kushlefsky of Kreindler & Kreindler in Manhattan represents about 8,000 responders, said 45 of their clients so far have gotten award letters.

"The statistics look better, but I really haven't seen them translated with respect to my claims," Kushlefsky said.

Nevertheless, he said he was optimistic that the process would speed up. "It's a huge undertaking. It's all coming together now," he said. "I think we're in a good place. Now I'd like to see some awards to clients."

Barasch agreed. "We're headed in the right direction," he said. "To be fair, Birnbaum has to safeguard this money and the DOJ requires you to do back flips to prove people were there [at a World Trade Center site] -- which I'm happy with."

Nicholas Papain of Sullivan Papain Block McGrath & Cannavo in Manhattan, which represents 1,353 responders, said the firm has submitted 590 claims and has received 235 awards. He praised Birnbaum's willingness to take advice.

"We've seen over the last couple of months a significant decrease in the time lag," he said. "All the problems are not resolved but she continues to have her door open to finding ways to improve things."

Improvements to speed up the process can't come quickly enough for responders. Anthony Flammia, 51, a former New York Police Department highway patrolman who lives in Miller Place, said he submitted his complete application in 2012 and still has received no award. "It's just promises, promises, promises but no delivery, no delivery, no delivery," he said.

Flammia, who has had two nose surgeries for his chronic sinusitis and has post-traumatic stress disorder and a heart condition, said he is unable to work and an award would help him financially. He's trying to be optimistic about this latest increase in the number of awards.

"I just want them to do the right thing by the responders," he said. "Hopefully this is the light at the end of the tunnel."

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