Session No. 23 Course: The Political and Policy Basis of Emergency Management Session

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Session No. 23

Course: The Political and Policy Basis of Emergency Management

Session: Special Topics: 9/11 Victim Compensation Fund vs. Conventional Disaster Relief Furnished to Victims of Hurricane Katrina Time: 1 Hour

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Objectives:

By the end of this session, students should be able to:


23.1 Describe in general terms the 9/11 Victim Compensation Fund’s origin, purpose, substance, procedures and rules.
23.2 Recount how the Master Model works and recall some of the 9/11 VCF work and case experiences of Fund Master Kenneth Feinberg.
23.3 Offer reasoned observations about the pro’s and con’s of “face-to-face” meetings with aid applicants vs. conventional procedures.
23.4 Recall some of the major programs and features of Federal disaster relief dispensed to victims of Hurricane Katrina under the so-called Conventional Model.
23.5 Compare and contrast the Master Model of assistance distribution with the Conventional Model of assistance distribution.

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Scope

This session is a comparative case study of a disaster recovery issue that has been controversial. A major part of the Congressional response to the 9/11 terror attack disaster and its victims was the 9/11 Victim Compensation Fund (9/11 VCF). The aim here is to provide students with a body of information about the 9/11 VCF, a contrasting body of information about FEMA programs of victim relief after Hurricane Katrina, and then invite them to compare and contrast the approaches and politics of each system of victim relief. The session closes with discussion questions about the issues raised in the session.

References

Assigned student readings:


Print out and make a set of photocopies of the fulfilled objectives and supplementary considerations sections of this session for each student and make them available to students at least a week in advance of the class that covers this session.

Recommended but not required companion readings


Dwyer, Jim and Flynn, Kevin. 102 Minutes: The Untold Story of the Fight to Survive inside the Twin Towers. New York: Times Books, Holt, Henry and Company, 2005.
Dixon, Lloyd Dixon and Kaganoff Stern, Rachel. “Summary.” Compensation for Losses from the 9/11 Attacks. RAND Corporation, 2004, p. xxxi. http://www.rand.org/pubs/monographs/2004/RAND_MG264.sum.pdf last accessed August 19, 2009.
Requirements

It would be good to seat everyone in a way in which discussion is not directed from one standing instructor to a seated audience faced forward. A circle or arrangement of seated people connotes that every person’s contribution is equal and it tends to relax the authority relationship of teacher-student. This session will succeed best if it is offered in an open “give and take” educational way, not as a one directional training exercise.


Invite students to explain what they think about the subjects raised as one moves through the session. Encourage them to offer constructive criticism. Invite students to use their imagination and to discuss ways in which lessons from the two case examples may help emergency managers better understand issues and problems of victim assistance after catastrophic disasters.

Purposes of this session are to help students broaden their thinking and reason out whether the nature and magnitude of government disaster assistance needs to be changed or augmented to take into account what actually caused the disaster. Are some disasters special or unique in some way such that policymakers respond to victim needs and losses in unprecedented ways?

This session, unlike almost all preceding sessions, this is not built from material in the course’s textbooks. The corpus of material contained in this session is not published yet and may only be available for FEMA’s Higher Education website. The instructor should print out copies of the “fulfilled session objective sections and the supplementary considerations section” and make this available to students as a class reading assignment handout. The instructor could also cut out and paste these sections into a file on his or her own computer and then upload it to a class learning management system, if one is available.

Remarks
Pedagogically, there are several ways to conduct this class session.

One format might involve dividing the class into two groups for the purpose of a formal debate. Here are two possible pro and con organizing propositions.


i. Many features of the 9/11 VCF Master Model method of furnishing Federal assistance to victims of a catastrophic disaster with great loss of life SHOULD BE infused into the current system of post-disaster Federal assistance Vs. the 9/11 VCF Master Model SHOULD NOT BE infused into the current system of post-disaster Federal assistance.
ii. The 9/11 VCF itself was a BAD PRECEDENT and it SHOULD NOT have been used to assistant victims and families & loved ones of the deceased in the aftermath of the 9/11 attacks VS. The 9/11 VCF itself was A SENSIBLE AND JUSTIFIABLE ONE-TIME POLICY necessary to assistant victims and families & loved ones of the deceased in the aftermath of the 9/11 attacks.

If using the debate format is infeasible, the instructor may want to consider simulating a role-play congressional hearing about whether special victim funds are ever justified after disasters of any cause. Correspondingly, the hearing could also address whether the Master Model, or use of legal masters, is worth building into the recovery operations to address victim needs after future terror attacks on the homeland. A hearing simulation involves assigning some students the role of lawmaker, others might be the FEMA Administrator, the U.S. Attorney General, the Secretary of Homeland Security, as well as representatives of national emergency management organizations, fire service organizations, police organizations, Governors, Mayors, and representatives of disaster victim organizations, and more. One-by-one testifiers make their case to the assembled committee of lawmakers, who must, before the class session ends, draft some form of legislation on the issue.

Judging from past experience, this professor has found the 9/11 VCF vs. Katrina conventional disaster relief session to be stimulating, animated, and thought provoking for every student. Even the most shy and retiring student will have something to say on the subjects discussed in this session.
A warning: it is good to encourage student free expression of personal opinion but it is also necessary that the instructor draw students back to the political and policy issues these cases raise about emergency management. It will be an easier matter to discern who did the reading and who did not.
One way to evoke student discussion is to ask students to imagine they are Kenneth Feinberg meeting 9/11 families and rendering judgments. Ask them to imagine they are 9/11 families or disaster victims made homeless by Hurricane Katrina, all of whom seek help from the government. If people become emotional in arguing the issues, you must remind them that this is above all an “academic exercise” intended to encourage them reason out which policy tools are appropriate and which are inappropriate. It may also help them appreciate what policymakers and administrators face in meeting the demands of the public after traumatic catastrophic disasters.

Final warning: this session is devised as a thought experiment. There is no pre-conceived expectation about what is the “best” thing to do. Students are NOT being steered to agree on a fix set of “correct” outcomes or policy positions. There is indeed worthwhile facts and information about the political and legal environment of emergency management conveyed in this session. However, students and the class as a whole should freely discuss the subjects raised in this lesson; yet, acknowledge from the start that the session must end with the concession that all may “agree to disagree” and in a friendly and tolerant manner.

The biggest mistake an instructor can make in teaching this session is to bias the session with his or her own personal opinions on the subject. Teach the facts of the case; work to get students intellectually and perhaps emotionally interested and engaged in topics discussed. Let them make their own judgments and allow them come to their own conclusions. If it appears that the class has been quickly swayed to one position and has not yet thought through the subjects, the instructor should temporarily play “devil’s advocate,” and challenge the prevailing “group think.” This session will be a success if at the end students conclude that all of the subjects and issues of the session got fair hearing and consideration, that they were freely able to offer their own observations and ideas, and if they leave the session “not knowing” the personal opinions of the instructor on the subjects discussed and debated.
Objective 23.1 Describe in general terms the 9/11 Victim Compensation Fund’s origin, purpose, substance, procedures and rules.
The September 11th Victim Compensation Fund was, first and foremost, a specific form of relief for victims of the terrorist attacks on the World Trade Center in New York City, the Pentagon in Maryland and United Flight 93 that crashed in Pennsylvania on the morning of September 11, 2001.

That Tuesday morning, nineteen members of Osama bin Laden’s al Qaeda terrorist network easily evaded airport security and boarded two United Airlines and two American Airlines jetliners, and they then waited until the cabin door to the cockpit of each plane was opened or used hostages to force their way into flight decks. The first hijacked passenger jet was driven directly into the north tower of the World Trade Center, the second airliner crashed into the south tower of the World Trade Center minutes later. The third plane crashed into the Pentagon. The fourth hijacked craft was deliberately brought down by terrorists as passengers fought them to regain control of the plane, this after passengers learned from their cell phones about the fate of the other three hijacked airliners. The fourth plane inverted and dove into an open field located near Shanksville, Pennsylvania. In all four cases no passenger or crew member survived.

According to Haddow, Bullock, and Coppola, the final accounting of 9/11 terror attack fatalities, at New York World Trade Center, at Arlington, Virginia’s Pentagon, and at Shanksville, Pennsylvania’s Flight 93 crash site, total 2,973, with as many as 25 still missing.1
Eleven days after the 9/11 attacks of 2001, the U.S. Congress passed a two page statute that was a seemingly simple yet highly unprecedented measure. The law established the 9/11 Victim Compensation Fund. Passed with unanimous House and Senate votes, the Fund was to pay the claims of injured survivors as well as the claims of family members of those who perished in the disaster. The 9/11 Victim Compensation Fund (VCF) was unique in at least two respects.
First, the Fund was predicated on covering post-disaster “losses” of individuals and families. Conventional Federal post-disaster relief to individuals and families addresses “needs” more than “losses.” There is an important distinction between “losses” and “needs.” Conventional disaster relief is comprised of several baskets of assistance available to disaster survivors or victims who make application. Federal assistance dispensed from government programs in the form of grants, loans, or in-kind relief is aimed at meeting post-disaster needs of affected individuals, families, or businesses. Some of these programs do not require means testing of applicants and some of them do. While such programs help victims address important needs, these programs only partially cover disaster losses.

Nine-eleven survivors and the people victimized by the loss of loved ones killed in that disaster were entitled to receive all conventional government disaster relief to which they were entitled, “plus” money from the 9/11 VCF. In other words, for people victimized by the 9/11 disaster, the 9/11 VCF augmented conventional Federal disaster assistance they were eligible to receive. The 9/11 VCF funds were intended to cover the complete range of victim losses to the extent money could compensate for loss.

Second, the 9/11 VCF was to be administered by a “master.” A master is a person, in this case Attorney Kenneth Feinberg, who receives the claims of petitioners and makes determinations regarding deservedness. The master may reject petitions, accept petitions, and determine the amount of claim money paid out to any specific petitioner. Masters are not uncommon in other realms. They may serve as court appointed managers of funds that need to be dispensed to various litigants or eligible parties. However, the use of a master in dispensing Federal relief to disaster victims was unprecedented until after the 9/11 terror attacks.
According to Feinberg, the 9/11 VCF made about $7 billion in payouts. Claim payouts ranged from a low of $500, for a person who lost a finger, to $8.6 million paid to a woman who survived the attack on the World Trade Center but who suffered 3rd degree burns over 85 percent of her body. The average award per death was about $2 million.2 The average award per injury was $200,000. Only about two dozen people survived the attack with serious injuries, though many people filed claims for respiratory damage claims contracted during the cleanup at World Trade Center “Ground Zero.” While there was no maximum payout limit, a minimum payout limit existed for deceased individuals before deduction of collateral benefits -- $300,000 for a single individual and $500,000 for a married individual or an individual with dependents.3 Technically, there was no legislatively imposed limit on the financial resources available to the 9/11 VCF.4

Individuals and families that won 9/11 VCF awards received, on average, sums of Federal money many times greater than that allotted in previous catastrophic and major disasters, at least since 1950. This assertion is difficult to document definitively, but Feinberg stated that Congressional custom has generally been to furnish any one individual or family no more than $200,000 in Federal disaster relief (excluding National Flood Insurance claims), though there have been exceptions owing to very expensive property loss cases.5 It is remarkable that the 9/11 VCF average award per death was about $2 million (see above paragraph).

Who was eligible to receive 9/11 VCF Money?
In the matter of eligibility, the 9/11 VCF provided benefits to “individuals present at the World Trade Center, Pentagon, or Shanksville, Pennsylvania, site at the time of, or in the immediate aftermath of, the crashes and who suffered physical harm as a direct result of the terrorism-related aircraft crashes [and] personal representatives of individuals… who died as a direct result of the terrorism-related aircraft crashes.”6 An individual had to be physically present at one of the aforementioned sites within 12 hours of the crashes for disaster victims and within 96 hours of the crashes for rescue workers, and “physical harm” was defined as a physical injury treated by a medical professional within 72 hours of injury or rescue.7 Additionally, personal representatives of individuals (excluding representatives of the perpetrators of the attacks) who were on American Airlines flight 11 or 77 or United Airlines flight 93 or 175 were eligible for benefits under the 9/11 VCF.8

Like the standard or Conventional Model of disaster relief compensation, the amount of assistance given was reduced by the amount that other private risk management benefits paid for the same thing. For example, the amount of private life insurance claims payments to cover a family member lost in the 9/11 attacks insurance had to be deducted from the amount the VCF awarded the family, although claimants could still receive other assistance from Federal agencies often without deduction of insurance benefits.9 Unlike the standard model of compensation, however, no stipulations of citizenship applied; undocumented aliens received aid if they met other eligibility standards.10

Application procedures the 9/11 VCF were very similar to those employed by FEMA under the Conventional Model activated under a major disaster declaration. Those affected by the disaster could visit claims assistance sites to obtain information or make application.11 Individuals could also use an Internet application website or call a special toll-free help line, 1-888-714-3385, to get help or set up an appointment at one of the claims assistance sites.12
Applicants to the 9/11 VCF had to file a claim and provide all appropriate documentation. For example, those filing for personal injury claims had to provide documentary evidence demonstrating that they were at one of the sites at the time of the crashes (e.g., such as an affidavit from an employer), as well as certified medical records from the medical professional who treated their injuries.13 For death claims, the process was somewhat more complicated. Personal representatives of those who perished had to submit a certified copy of a Death Certificate if the deceased’s body or DNA evidence was found; if the deceased’s body was not found, extra documentation placing the deceased at one of the sites at the time of the crashes was required.14
Additionally, personal representatives had to provide “letters of administration” appointing them as personal representatives of the deceased, and all individuals named as distributees had to undergo a Federal Bureau of Investigation background check before receiving awards from the 9/11 VCF.15
Waiving the right to file lawsuits

Finally, a unique component of the 9/11 VCF was that claimants had to give up their rights to file or be party to a civil lawsuit against those negligent in the attacks.16 The law that created the 9/11 VCF stated that claimants relinquished the right to “sue the airlines, the Port Authority, which owned the World Trade Center, and any other domestic entity” in return for compensation.17 Yet, according to Mr. Feinberg, 97 percent of all claimants decided to join the VCF instead of pursuing legal action; only 85 people chose to sue outside the fund, mainly for personal reasons instead of money.18 In total, the 9/11 VCF served the interests of 2680 injured survivors and 2880 relatives of individuals who died in the attacks.19


Objective 23.2 Recount how the Master Model works and recall some of the 9/11 VCF work and case experiences of Fund Master Kenneth Feinberg.
Following the extraordinary events of September 11, a new but one-time only avenue opened for disaster victims, a special victim compensation fund run by a single “master” was used to dispense disaster relief. The Master Model of compensation was administered by an appointed Special Master, who had the sole responsibility for receiving claims and making grant determinations. While this model has been utilized in other fields, most notably in making payouts to victims and relatives of asbestos-caused illnesses and cancers, the 9/11 Victim Compensation Fund (VCF) represented its first application in Federal disaster assistance. The 9/11 VCF proved to be a very personal and controversial way to distribute disaster relief.
Should the Master Model of compensation ever be used again? Is it too event-specific or too controversial to ever be applicable again? To answer these questions one must first understand the similarities and differences between the Master Model and the conventional or standard model.
Kenneth R. Feinberg is a Washington, D.C., attorney who specializes in settlement mediation and negotiation. Feinberg was appointed Special Master of the 9/11 VCF by President George W. Bush through U.S. Attorney General John Ashcroft. In his Special Master capacity, Mr. Feinberg developed specific 9/11 VCF regulations and procedures beyond those legislatively stipulated and he did so in conjunction with the Civil Division of the Department of Justice.20

Mr. Feinberg also had the sole responsibility, and thus a substantial level of discretion, for receiving claims and making grant determinations by verifying eligibility and the extent of the loss experienced.21 Another interesting aspect of the Master Model is that the Special Master was required to meet with any injured survivor or relative who so desired, giving a face to Federal disaster relief – a single official to whom to express all concerns.22

Feinberg said that the most difficult management aspect of the program stemmed from the statutory formula the master was required to use.23
First, the master had to calculate the economic loss of the victim. Had the victim not been killed or seriously injured on 9/11, what would they have earned over the rest of their expected life span? For example, these projections involved determinations of how much an accountant at Marsh-McLennon or a sergeant at the Pentagon would have earned had they not been killed by terrorists on 9/11.24

Second, the master had to calculate pain, suffering, and emotional distress sustained by every victim and claimant of the disaster. The average payout per death was about $250,000. Feinberg related that many who died on 9/11 were trapped alive, were unable to escape, and were aware of their ultimate fate up to the end. Some 200 people fell to their deaths from floors above the impact zone in the burning north tower.25 Many people were trapped and killed by fire inside the damage zone of the Pentagon and in sections of the World Trade Center before the towers fell. Moreover, many spouses and children endured emotional distress during and after the period of the attacks. Not to be overlooked is the pain, suffering, and emotional distress of the passengers on the four hijacked aircraft. This was especially horrific for passengers and crew members of United Flight 93, which went down as passengers attacked the hijackers and sought control of the plane. Passengers and crew of the other three flights were aware of their hijack for a period, but passengers and flight attendants on United 93 had learned from cell phone calls what had happened in New York and Washington while their hijack was transpiring. Emotional distress payments alone averaged $100,000 for a spouse and $100,000 per dependent.

Third, the master was required to deduct from calculated 9/11 VCF awards the life insurance payouts received by claimants. Feinberg complained that this was a particularly painful and controversial task. In effect, families that had engaged in sound financial planning by paying premiums on life insurance policies were penalized relative to those who had not purchased life insurance for themselves or their spouses. Nonetheless, the Congress was not willing to disregard the standard tenet of Federal disaster relief: Federal disaster relief payments to individuals or families cannot duplicate payments from insurance policies for the same purpose.26
Fourth, the master had the ability to exercise his own discretion in making awards once the first, second, and third statutory requirements (presented above) were met. In effect, the master was accorded the powers of Solomon. He could temper or leverage disparities in the awards paid out to individuals and families from the VCF.
Setting grounds for making and denying 9/11 VCF awards

Attorney Feinberg volunteered that Congress failed to give him instructions or advice on a great variety of subjects. He said they did not specify “who could file a claim.” Can a fiancé be treated like a spouse? In the case of same sex partners, who is to be treated as a spouse if one of the partners was lost on 9/11 and the remaining partner elects to be treated as if he or she were a spouse? Feinberg answered his own questions by remarking that fiancés and same sex partners often won 9/11 VCF awards.27

Feinberg added that he encountered a great many family and extended family disputes over who should be judged as a surviving spouse or dependent. Feinberg lamented that only 20 percent of those who perished on 9/11 had wills. For the 80 percent who had no wills, Feinberg was forced to devise formulas for awarding compensation. He said that he “was not a family counselor” but he was often expected to decide conflicting claims of family members.28
How were presumptive awards calculated? Generally, a statutory formula was used to make grant determinations; a claimant’s economic damages were calculated, non-economic damages were added, and collateral benefits (see below) were subtracted to compute the approximate award.29 Mr. Feinberg, when asked about unequal award amounts, responded, “Awards are not paid out in equal amounts because the statute that created the fund provided that awards must be based in part on economic losses suffered in each case. The calculation of such economic loss necessarily results in different amounts being awarded to different families.30 However, Mr. Feinberg had a substantial level of discretion as Special Master and he could take special circumstances into account when determining awards even after the statutory requirements were met.

Economic damages were calculated by determining an individual’s post-tax income, along with employer-provided benefits, work/life expectancy, and wage/growth rate, and all this was used to project expected lifetime earnings.31 Annual income was capped at $231,000 in these calculations.32 The law creating the Fund allowed for compensation of non-economic damages. With the possible exception of court decisions in lawsuits filed by relatives of those lost in aviation disasters, there were few precedents to guide Feinberg’s compensation decisions for non-economic damages.33 The presumptive amount given by the 9/11 VCF for pain and suffering was $250,000, which was often altered by the Special Master for personal injury claims and considerably increased for death claims.”34

Collateral benefits included sources like life insurance, survivor pensions, and Social Security benefits, to name a few.35 Claimants were expected to provide information about collateral benefits on the initial claim; however, VCF staff consulted other officials to validate benefits received or to check that all benefits claimants received were included in the tabulation of benefits.36 Therefore, some features of the 9/11 VCF increased compensation for claimants – for example, the VCF did not deduct charity donations or tax benefits claimants received – other features decreased their compensation.37 Overall, according to a Justice Department audit, “VCF personnel appeared to process claims in a manner that would maximize award payments. In the cases where discretion was used, we found justification for the amount of the award in the claimant files.”38
Objective 23.3 Offer reasoned observations about the pro’s and con’s of “face-to-face” meetings with aid applicants vs. conventional procedures.
Master Feinberg disclosed that his biggest problem resulted from the congressional requirement that any family member of a victim or injured survivor of the 9/11 attacks was entitled to a “face to face” meeting with the master if they so desired. He reported that over 1000 people elected to meet with him face to face. Congress wanted government to provide a “human face” for petitioners. This is a highly unique requirement.

Conventional disaster relief is provided through myriad channels and by a variety of actors. Many if not most disaster victims seek relief by calling the 1-800 numbers of Federal or State agencies, as in Federal Emergency Management Agency tele-registration assistance operations. Many of the same or other victims meet with volunteers or agency representatives at Disaster Recovery Centers set up near zones of devastation, but usually for the purpose of asking questions and completing paperwork required to obtain relief.

In the Conventional Model the “face of government” for many disaster victims is usually a government contractor, a local building inspector, a worker from a non-profit volunteer organization dispensing government-provided assistance, a State agency representative validating losses or processing requests for disaster unemployment compensation, etc. No one of these individuals is asked to address holistically the complete personal and economic losses of disaster victims in the manner the master was expected to do under the 9/11 VCF.
Sometimes government provision is made for psychologists to offer counseling to victims after disaster, this usually through State public and mental health programs. For example, in the months after Hurricane Katrina, a government supported effort was launched in the New Orleans area to provide psychological counseling to children who survived family tragedies. However, in most cases disaster victims rarely get to meet a single government official or counselor to whom they can express all of their concerns about personal and economic loss. This may be one of the disadvantages of the conventional disaster model of relief, though as this account will show, the Master Model has a great many negatives as well.
Feinberg said that his face to face meetings “were a chance for families to vent about their personal loss.” Many showed him wedding pictures, family photo albums, family home movies, pictures of children and parents at religious ceremonies. A gentleman, whose wife had telephoned him from the 110th floor of the North tower of the World Trade Center, played a tape of his wife saying goodbye. Feinberg noted that many people stridently insisted on the chance to meet with him simply to express their feelings and not to seek a larger award.39

Feinberg sometimes emerged from these meetings and used his discretion to modify awards issued. He revealed that in his very first meeting with a claimant, a woman complained that the original award made to she and her children was insufficiently low. Feinberg asked her why she thought she deserved more than other applicants in similar circumstances. The woman then explained that her husband, who perished in the Towers on 9/11, had been the principal caregiver and provider to her children as she battled a case of terminal cancer. She told Feinberg that she had only eight weeks to live and she was deeply concerned about providing for the needs of her three young children. Feinberg disclosed that he doubled her award. He said the woman died of cancer within seven weeks of his meeting with her.40

Feinberg related that many who met with him explained extraordinary circumstances of their loved one’s death on 9/11. A 70-year old man told him how his son, a Navy officer, successfully escaped the conflagration caused by the airliner’s impact on the Pentagon offices where he worked, but then his son elected to re-enter the burning and partially collapsed structure to look for his sister who also worked in an office near the zone of devastation. His son died without finding his sister, though fortunately his sister escaped unharmed.41
A woman recounted that her husband, a New York firefighter, had rescued some ten people seeking escape across the plaza below the towers. His supervisor told him not to make further rescues given how dangerous matters were becoming. The firefighter exclaimed that he had to continue regardless. On his last trip to the base of one of the towers he was killed by the body of someone who had fallen from an upper storey of one of the towers.42
Feinberg also told the story of a New York firefighter lost on 9/11. His wife and three children filed for 9/11 VCF assistance and got it. Shortly thereafter a lawyer called his office and added new information regarding the case. The lawyer said he had proof that the deceased firefighter had a second wife, who herself had two children. Apparently, neither wife was aware of the other. Feinberg said that both wives and all five dependents were awarded 9/11 VCF monies.43
A good idea never to be repeated?
Mr. Feinberg warned Congress that the 9/11 VCF “was a good idea, but don’t do it again.”44

Feinberg said the 9/11 VCF program was a success in a variety of ways. The 9/11 VCF was a taxpayer funded alternative to torts. In other words, those who accepted payment from the VCF had to waive their right to file lawsuits against the Federal government or any other party for any 9/11 caused loss. Feinberg said that 97 percent of all claimants joined the Fund and only 85 people chose to sue for relief outside the fund. Feinberg declared that the program was a statistical success in that 97 percent of claimants joined the 9/11 VCF.

Feinberg said that those who chose to sue for relief outside the 9/11 VCF often had special agendas. Feinberg insisted that none of the people suing were really litigating for money. Some were suing because they believed their case would make the airlines safer. Some were suing because it was the dying wish of their loved one. Others were suing because they believed their case would compel the Bush administration to release more information about what its people knew before the 9/11 attacks, something Feingold said the 9/11 Commission has already largely done.
Objective 23.4 Recall some of the major programs and features of Federal disaster relief dispensed to victims of Hurricane Katrina under the so-called Conventional Model.
There are a great many Federal disaster relief programs handled outside FEMA and DHS. The focus here will be on DHS-FEMA programs.

Federal assistance activated by a major disaster declaration falls into three general categories – individual assistance, public assistance, and hazard mitigation assistance. As the names suggest, individual assistance covers aid to individuals, families, and businesses, whereas public assistance covers aid to public entities and some private non-profit organizations.45 Hazard mitigation assistance involves the Hazard Mitigation Grant Program, which funds projects designed to mitigate or reduce future losses in an area covered by a major disaster declaration.46 For a given disaster, all categories of assistance may not be activated; some declarations warrant only individual or public assistance, not both.

Conventional Model: Individual Assistance and eligibility

According to the DHS-FEMA website, the Individual Assistance mission is “to ensure that individuals and families that have been affected by disasters have access to the full range of Response and Recovery programs in a timely manner and that the best possible level of service is provided to applicants in the administration of these programs.”47 Remember, individual assistance programs typically address post-disaster recovery needs, not losses incurred during the disaster.48
One of the major programs offered by FEMA in conjunction with each State government is the Individuals and Households Program (IHP). The IHP was created under the Disaster Mitigation Act of 2000 (PL 106-390), which amended the Stafford Act, as a combination of two former FEMA programs – Disaster Housing Assistance and the Individual and Family Grants Program.49 When a major disaster occurs, this program provides aid to individuals in the area covered by the major disaster declaration.
There are two facets of the IHP – Housing Assistance and Other Needs Assistance. Housing Assistance primarily includes funding for temporary housing and repair to make damaged homes habitable; however, under rare conditions, grants for replacement and permanent housing construction may be issued as well.50 Other needs assistance covers other disaster-related expenses, such as medical care, dental care, funeral costs, personal property replacement, transportation, etc., for disaster victims who do not qualify for a Small Business Administration (SBA) low interest loan.51 Assistance through the IHP is capped at $26,200 per individual or household.52

Another FEMA program authorized under the Stafford Act is the Crisis Counseling Assistance and Training Program (CCP), which provides supplemental funding to the State “to help relieve any grieving, stress, or mental health problems caused or aggravated by [a President declared] disaster or its aftermath.”53 Like the IHP, there are two facets of the CCP – immediate services and regular services. Immediate services are funding for a variety of immediate mental health needs, including screening, diagnostic, counseling, and outreach services for affected communities.54 Regular services covers up to nine additional months of education, counseling, and outreach services. Funding for both facets of the CCP is handled separately, and States may apply for and administer either or both forms of assistance depending on their needs.55

Unemployment benefits may be provided through the Disaster Unemployment Assistance Program (DUA) administered by the State and supported by FEMA and the Department of Labor. Benefits and reemployment services are available to individuals who become unemployed due to a major disaster, beginning with the date the individual was unemployed and extending as long as 26 weeks after the major disaster declaration.56 Most States stipulate that individuals must be able to “accept employment opportunities comparable to the employment the individual held before the disaster”; yet interestingly, not all States require individuals to actively seek employment while receiving benefits.57

In addition to the IHP, the CCP, and the DUA, FEMA also provides free legal assistance to low-income disaster victims through an arrangement with the Young Lawyers Division of the American Bar Association. Legal assistance is limited to cases that will not produce a fee, including assistance with insurance claims, landlord/tenant problems, consumer protection matters, and replacement of wills or other legal documents that were lost in a major disaster.58

A different venue of assistance is the low interest loan mentioned above, provided by the Small Business Administration (SBA) of the U.S. Department of Commerce. Three types of Federally subsidized disaster loans are in existence to help qualified homeowners and businesses – home disaster loans, business physical disaster loans, and economic injury loans. Home disaster loans are issued to assist with repair and replacement of damaged homes or personal property; however, homeowners are required to register with FEMA before applying for a SBA loan.59 Business physical disaster loans are issued to assist with repair and replacement of damaged business properties, including inventory and supplies, and economic injury disaster loans provide recovery capital to small businesses and agricultural cooperatives.60 Businesses may apply directly to the SBA for assistance.61

Although it appears that the jurisdictions of the IHP and the SBA overlap, it is important to recognize that most Federal assistance is actually in the form of low interest loans from the SBA.62 Another crucial distinction between the IHP and the SBA is that a grant from the IHP does not have to be repaid, whereas a low interest loan from the SBA must be repaid in full, plus interest, during a set interval.63

Finally, special tax considerations are often granted to individuals and businesses in an area covered by a major disaster declaration. For example, the Internal Revenue Service (IRS) allows casualty losses from a major disaster to be deducted on Federal income taxes for the year of the loss or the preceding tax year.64 Additionally, the IRS can expedite refunds to taxpayers living in affected communities.65 Businesses may receive special tax exemptions from the Bureau of Alcohol, Tobacco, and Firearms; Federal excise taxes are often waived for alcoholic beverages and tobacco products that were lost in a major disaster.66

Several crucial factors determine eligibility for individual assistance programs. Typically, individuals, families, and businesses in an area covered by a major disaster declaration are eligible for assistance if they incur extensive damage and do not possess the resources to meet their recovery needs. In other words, “these programs are designed to provide funds for expenses that are not covered by insurance [or other outside assistance].”67 Potential applicants must file a claim with their insurance company (if applicable) before applying to FEMA; yet even if disaster victims have insurance, FEMA may still be able to provide assistance under limited circumstances, such as documented delayed, insufficient, or denied insurance settlements.68 In addition, individuals must be U.S. citizens, non-citizen nationals, or qualified aliens to be eligible for cash assistance programs, like the IHP; for non-cash assistance programs, like the CCP, no stipulations of citizenship apply.69

Conventional Model issues: How can I apply, and what happens next?
Immediately after a major disaster declaration, disaster recovery centers (DRCs) are established in affected communities where individuals can discuss their disaster-related needs, learn how to apply for various types of assistance or check on the status of their applications, and learn more about mitigation measures to reduce future risk.70 Federal and State agencies staff DRCs with “knowledgeable officials who provide recovery program information, advice, counseling, and technical assistance.”71 FEMA officials work to publicize available disaster aid programs through the Internet, news media, and other venues so that information reaches all disaster victims in a timely manner. Most individual assistance programs have an application deadline of 60 days following a major disaster declaration.72
To officially apply for FEMA assistance, disaster victims must register online or over the phone at a special toll-free telephone number, 1-800-621-FEMA.73 The following information is typically required of applicants – a social security number, current and pre-disaster addresses, a current telephone number, insurance information, total household annual income, routing and account numbers from a bank (for direct deposit if desired), and a description of post-disaster recovery needs.74

Specially trained operators at one of FEMA’s National Processing Service Centers (located in Denton, Texas; Winchester, Virginia; and Hyattsville, Maryland) process all initial applications.75

Then, inspectors contracted by FEMA schedule times to meet applicants at their homes, at which time applicants must provide proof of ownership and occupancy, and assess the extent of the damage. FEMA officials decide from the inspection reports if applicants qualify for individual assistance, typically within one month of the initial application. If approved, a grant is either sent by mail or directly deposited in an applicant’s bank account, along with instructions about how to use the money; if denied, a letter is sent by mail detailing why the application was turned down and explaining the appeals process. Any decision may be appealed (eligibility, the amount of assistance given, etc.), and appeals must be mailed within 60 days for reassessment.76 FEMA administrators audit approvals to ensure that aid is only granted to eligible individuals and is actually used for its intended purposes.77

The SBA has a separate application process for low-interest loans. Disaster victims who seek an SBA disaster small business or home loan must mail a completed application and all required documents to the SBA for consideration. SBA officials decide from the applications if applicants qualify for low-interest loans. If approved, the SBA directly contacts the applicant; if denied, the SBA automatically refers the applicant to FEMA.78 Again, homeowners are required to register with FEMA before applying for a SBA loan, whereas businesses may apply directly to the SBA for assistance.79
Objective 23.5 Compare and contrast the Master Model of assistance distribution with the Conventional Model of assistance distribution.
Although the Master Model of compensation was generally well received in the aftermath of September 11, the question remains as to whether it should be used after other mega-disasters producing extensive loss of life.

The Master Model contains some unique features that remedy several of the criticisms of Federal assistance carried out through the Conventional Model. In a study about September 11 government disaster aid, interviewees positively assessed the 9/11 VCF while criticizing FEMA “for [its] slow response, inflexibility in adapting programs to the particular circumstances of the attack on the World Trade Center, and its poor coordination with charities.”80 This kind of criticism of the standard model of compensation is typical – that after a mega-disaster, victims often tend to “get lost” in the flurry of activity of Federal and State agencies and officials. FEMA goes to great lengths to publicize assistance options, yet many individuals still find it difficult to obtain and sift through relevant information to determine what kind of assistance people are eligible for in a time of crisis. A common problem is record and document loss.

Table 1 below highlights major similarities and differences between the standard model and the Master Model.



Table 1: A Comparison of the Standard and Master Models81




Standard model of compensation
Master model of

compensation

Federal program?


Yes

Yes

Legislative authority?

Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 & Amendments

Air Transportation Safety and Stabilization Act of 2001

Scope?


Any major disaster with a Presidential declaration

September 11 attacks

Administrator?


Array of Federal and state agencies (most notably FEMA)

Special Master

Types of assistance?

Needs-based (housing assistance, crisis counseling unemployment benefits, legal services, etc.)

Loss-based (personal injury or death)

Duplication of benefits allowed?


No

No

Citizenship stipulations?

Yes (for cash assistance)

No

Applications?


Register online/by phone for FEMA, apply by mail for SBA

File claim

Venues for help with applications?

Disaster Recover Centers, websites

Claims assistance sites, website, toll-free help line

Method of payment?

Grants, loans

Grants

Appeals process?


Yes

Yes

Audit process?


Yes

Yes




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