Why Do Doctor-Lawmakers Object to the 9/11 Compensation Fund Bill?

Kerry Dooley Young

July 23, 2019

WASHINGTON — The Senate is slated to vote Tuesday on whether to provide unlimited money for the 9/11 Victim Compensation Fund, which in February announced plans to steeply reduce payouts, owing to a budget shortfall.

Senate Majority Leader Mitch McConnell (R-KY) has scheduled a vote today on a 9/11 fund bill that has been championed by Sen. Kirsten Gillibrand of New York, a Democratic presidential candidate. The bill would extend the life of the fund, which offers payouts for economic losses as well as pain and suffering, from 2020 to 2092.

The bill also would provide a rare open-ended budget for the fund, providing "such sums as may be necessary" to pay claims through the life of the program. Congress usually gives federal programs set amounts of funding and then renews their budgets through subsequent laws. This was done previously with the 9/11 Victim Compensation Fund.

Since 2011, Congress has given the 9/11 Victim Compensation Fund $7.4 billion to spend. But the fund already has awarded more than $5 billion and is in danger of exhausting its current budget within a few years, according to a July report from the Congressional Research Service.

As a result, in February, the 9/11 Victim Compensation Fund announced a 70% reduction in payment for future claims and a reduction of 50% on certain older ones. Because of that shortfall, Congress renewed efforts to make the 9/11 Victim Compensation Fund essentially a permanent, robustly funded program.

"To let the fund go broke or give another temporary extension and force our heroes and their families to worry about the rug being pulled out from under them is simply unacceptable," said Rep. Mikie Sherrill (D-NJ) on the House floor in March.

Critics Object

Yet, the unusual open-ended approach to funding in the 9/11 Victim Compensation Fund bill has drawn some critics, including two Republican physicians, Sen. Rand Paul, MD, of Kentucky, and Rep. Andy Harris, MD, of Maryland. Last week, Paul blocked a bid by New York's Gillibrand to swiftly pass the measure through a process known as unanimous consent.

"Any new program that is going to have the longevity of 70 or 80 years should be offset by cutting spending that is less valuable," Paul said. "At the very least, we need to have this debate."

Backers of the 9/11 compensation fund bill, including comedian Jon Stewart, lambasted Paul for delaying the vote. Many critics of Paul noted that the senator had voted in favor of a 2017 GOP tax package, which he supported even after the Congressional Budget Office (CBO) estimated that the Republican law would increase the federal deficit by $1.5 trillion over a decade.

Before voting Tuesday on the 9/11 fund bill, though, the Senate will vote on an amendment offered by Paul. It proposes taking money from other federal programs to offset additional spending for the 9/11 fund.

The Senate also will consider an amendment from Sen. Mike Lee (R-UT) that would strike the open-ended guarantee of money for the 9/11 Victim Compensation Fund. Lee's amendment would provide $10.2 billion for the fund to spend through fiscal 2029. This is what the CBO estimated as the cost over the initial decade of the extension of the Victim Compensation Fund.

Senate Minority Leader Charles E. Schumer (D-NY) said at a press conference last week that he expects the Senate to reject both men's amendments. Lee and Paul face a tough hurdle in trying to change the 9/11 compensation fund bill. The threshold for passage of their amendments is set at 60 votes.

Replenishing the 9/11 Victim Compensation Fund is a popular cause with both parties. Seventy-five of the Senate's 100 members are official sponsors or cosponsors of Gillibrand's 9/11 Victim Compensation bill. Her measure mirrors the House bill on which the Senate will vote. Using the House-passed bill means a Senate vote in favor of the measure would send it to President Donald Trump for his signature.

On July 12, the House approved the bill in a 402–12 vote. Rep. Andy Harris was among the dissenters.

"Of course, taking care of 9/11 first responders is important and a priority," Harris said in a statement about his vote. But the House bill "goes far beyond taking care of the health needs of the 9/11 first responders."

In his statement, Harris noted that Congress already has addressed the long-term medical needs of people exposed to toxic debris after the 9/11 attacks.

Compensation Fund Differs From Health Program

In 2015, Congress effectively made the World Trade Center (WTC) Health Program permanent, extending it through 2090. This program, which is separate from the Victim Compensation Fund, provides money for economic losses as well as pain and suffering.

The WTC Health Program provides monitoring for people who were potentially exposed to toxins and extreme stress in the aftermath of the attacks. It also provides medical and mental health services at no cost to people who qualify for the program. About 75,000 first responders — firefighters, police officers, and others who worked on recovery efforts at the sites damaged in the attacks — are enrolled. The WTC Health Program also covers about 20,000 survivors — people who lived and worked near affected sites.

The full medical impact of the 9/11 attacks on US citizens may not be known for many years, if indeed it can ever be calculated. But cancer claims clearly are rising as the people who were exposed to asbestos and other carcinogens in the aftermath of the attacks get older.

"More and more responders and survivors have been diagnosed with various cancers, particularly cancers with long latency periods, and, tragically, more and more have died from those illnesses," said Rep. Jerry Nadler (D-NY) in March in a speech on the House floor.

At this time, the Victim Compensation Fund and the WTC Health Program cover many cancers, including breast and prostate cancers, as well as dozens of other conditions, including gastroesophageal reflux disorder disease and chronic obstructive pulmonary disease, according to the Centers for Disease Control and Prevention (CDC), which runs the WTC Health Program. (The Department of Justice administers the Victim Compensation Fund.)

The federal government has recently stepped up efforts to reach people who could qualify for payments through the Victim Compensation Fund. At a 9/11 commemoration event last year, for example, FBI Director Christopher Wray urged eligible persons to register with both the Victim Compensation Fund and the WTC Health Program.

In addition, several law firms are using the Internet to seek out clients who may eligible for payments through the Victim Compensation Fund. These factors have contributed to a rapid increase in claims.

During a 5-year period that ended in December 2016, 19,563 compensation forms were filed with the compensation fund. In a 2-year period that ended in December 2018, an additional 19,999 compensation forms were filed, according to the most recent annual report for the fund.

In January 2019 alone, there were 4841 additional filings, the report said.

Deciding Eligibility

There has been a notable spike in cancer cases among participants in the WTC Health Program, according to the fiscal 2020 budget request for the CDC. More than 6500 people who are enrolled in the WTC Health Program received cancer care in fiscal 2018, compared with approximately 4900 in the previous budget year, the CDC said.

The federal government uses what's called a presumptive eligibility approach for deciding whether to cover cancer cases through the 9/11 Victim Compensation Fund, according to the July report from the Congressional Research Service. This approach also has been used in recent years to broaden eligibility for disability compensation for veterans who served in the Vietnam War.

Under this presumptive approach, a person's exposure to toxic debris related to 9/11 sites can be seen as "substantially likely to be a significant factor in aggravating, contributing to, or causing the illness or health condition," Scott D. Szymendera, an analyst with the Congressional Research Service, writes in the report.

This approach is different than the "probability of causation model" used for a federal program to handle cancer claims from people who work in nuclear weapons programs, Szymendera noted. In that approach, for a person to receive compensation, the probability that that person's cancer was caused by occupational exposure to ionizing radiation must be 50% or greater.

Under the presumptive approach, the federal government "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," writes the CRS analyst.

"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 [World Trade Center Health Program's] determination that such exposure 'is substantially likely to be a significant factor in aggravating, contributing to, or causing the illness or health condition,' " Szymendera writes.

Researchers continue to try to determine what the link may be between pollutants in the 9/11 debris and cancer.

Last month, Medscape Medical News reported on a study that suggested that toxic dust may have caused changes in inflammatory and immune regulatory mechanisms in prostate tissue. And two articles published in JAMA Oncology last year suggested that New York City firefighters who were exposed to debris from the fallen WTC may be at a greater risk for certain cancers than the general population. These articles were accompanied by an editorial from Otis Brawley, MD, then chief medical officer of the American Cancer Society. In it, Brawley notes that the findings are not authoritative.

"When these WTC heroes are diagnosed as having a cancer, even a cancer common in the population, there is a natural tendency to assume it is due to their service at the WTC," Brawley writes. "We do justice to and honor these men and women by working hard to find the truth and determine the illnesses that are associated with their service."

In that spirit, Brawley noted drawbacks in the research presented in the articles. For example, one article compared a group of 781 New York firefighters exposed to the WTC wreckage to citizens from the general population of a Minnesota county. It has been documented that the firefighting profession is associated with a higher risk for multiple myeloma compared with that of the general population, Brawley writes. He suggested it would have been "preferable to compare the WTC-exposed firefighters with an intensively screened age-matched cohort of firefighters from another big city."

In the study, Ola Landgren, MD, from Memorial Sloan Kettering Cancer Center in New York City, and her coauthors conclude that environmental exposure to the WTC disaster site is associated with myeloma precursor disease and "may be a risk factor" for the development of multiple myeloma at an earlier age, particularly the light-chain subtype.

"The operative word is 'may,' " Brawley writes in his editorial. "These trials, because of the size of cohort, cannot identify a small increase in cancer risk due to WTC exposure, and correlation does not mean causation. Perhaps this issue is beyond the limits of science."

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