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Anyone familiar with the September 11th Victim Compensation Fund (VCF) has likely heard mention of the 9/11 Fund’s Special Master. But fewer understand the role of the Special Master. In this blog, we explore the function served by the VCF Special Master in administering the VCF and supporting the individuals and families who receive benefits from it.
What Is a Special Master and What Do They Do?
According to the current VCF Special Master, Rupa Bhattacharyya, the job focuses on three tenants: “Being fair to the claimants; faithful to the statute, and defensible to the taxpayers.”
Under the law, a special master is a subordinate official appointed by a judge or other senior official to follow orders, hear evidence on behalf of the senior official, and make recommendations to the senior official on the matter.
The United States Attorney General, who heads the Department of Justice, appoints the VCF Special Master.
The tasks of the position of VCF Special Master include:
- Making final determinations on compensatory awards to people who make claims for VCF benefits;
- Ensuring that adequate funding is in place to compensate claims to the VCF;
- Drafting and issuing final rules to reflect changes in the law or the criteria used to determine VCF awards;
- Establishing and maintaining partnerships with the other 9/11-related federal benefits program, the World Trade Center Health Program, as well as with local, state, and federal agencies and key employers of claimants, such as the NYPD or FDNY;
- Ensuring that an ongoing focus on and outreach to potential and actual VCF claimants, and that those who can file a claim do so;
- Overseeing an online claim submission system that makes it efficient and straightforward to file and process claims;
- Hiring the staff responsible for carrying out the VCF’s mission, which includes reviewing claims, distributing VCF funds, and interacting with claimants; and
- Regularly reporting to the public and Congress on the status of the VCF.
These tasks encompass innumerable sub-tasks that require the VCF Special Master’s constant attention. It’s a demanding, critically important job.
The First Special Master: Kenneth Feinberg
Soon after 9/11, Congress created the original VCF to provide funding to those most impacted by the terror attacks. At the time, the intended recipients were the family members of individuals who died in the attacks, and first responders or survivors who had suffered injuries in them.
Then-Attorney General John Ashcroft appointed Washington, DC attorney Kenneth Feinberg as the first Special Master of the VCF, tasking him with determining how much funding each claimant would receive. Feinberg served in the position for 33 months pro bono, as he felt it would be inappropriate to make money off the hardship of families seeking compensation after losing a loved one.
Feinberg remained at the post of VCF Special Master until the program closed in 2004. In an interview around the 9/11 20th anniversary, Feinberg reflected on his time as the chief decision-maker for the Fund. When asked what he remembered most, he mentioned the emotional challenge of meeting with thousands of people so soon after 9/11. He personally conducted nearly a thousand hearings with victims and their families, something he says took a heavy toll on him.
He also reflected on the initial nationwide support for the program, which he believes has waned over the years. At the time of his appointment, he noted, there were no red or blue states when it came to supporting 9/11 victims. There was near-universal agreement on the necessity for assisting victims of a profound tragedy.
2011: A New Special Master for the Reconstituted VCF
In January 2011, President Barack Obama signed into law the James Zadroga Health and Compensation Act, which reauthorized the VCF with new funding criteria. Then-Attorney General Eric Holder tapped Sheila Birnbaum for Special Master.
Birnbaum was an attorney and a lifelong New Yorker with decades of experience in complex litigation. She became known among the 9/11 responder and survivor community when she mediated a settlement of $500 million for 92 families of victims of the 9/11 terror attack.
“My first priority will be to sit down with the people who will be most affected by the program, and see how we can design a program that is fair, transparent and easy to navigate,” Birnbaum said at the time of her appointment. “The Fund needs to get up and running quickly. At the same time, I want to make sure we do it right.”
With the 20th anniversary of the 9/11 terror attacks, the VCF released a special report in which Birnbaum contributed some of her views about serving in the role during the restart and re-imaging of the program.
“I am proudest of how we met the challenge of taking the concept for a reauthorized VCF and the legislation, and bringing it to life,” she wrote. “Among many challenges, what was most complicated was that we had a fixed amount of money to distribute, but we didn’t know how many people would be applying and would meet the criteria.”
She saw a need for a high degree of transparency and communication to make the program work.
Birnbaum served as Special Master of the VCF until 2016. During her tenure, she oversaw the distribution of over $1.8 billion in compensation to first responders, general responders, and survivors (those working, living, or attending school in Lower Manhattan on or shortly after the attacks occurred).
The Current Special Master: Rupa Bhattacharyya
In July 2016, then-U.S. Attorney General Loretta Lynch named Rupa Bhattacharyya as the new Special Master for the VCF.
At the time of her appointment, Bhattacharyya served as the Director of the Justice Department’s Constitutional and Specialized Tort Litigation Section in the Civil Division’s Tort Branch, where she oversaw separate groups of attorneys and professional staff for the Vaccine Injury Compensation Program. She also previously served for four years as the Deputy Assistant General Counsel for Internal Affairs at the U.S. Department of the Treasury.
Bhattacharyya confronted the hardest decision she’d ever had to make in her 25 years as a government attorney when she faced the dire situation in 2019 that the VCF was running out of money and there was not enough to pay all of the pending claims, let alone future ones. She decided to cut the funding for pending claims by 50 percent and for future filed claims by 70 percent.
Her decision, difficult as it was, highlighted the need for Congress to appropriate more money for the VCF. The issue resulted in Congressional testimony from Bhattacharyya before a House Judiciary Subcommittee that also heard addresses from comedian, talk show host, and 9/11 advocate Jon Stewart and 9/11 responder Luis Alvarez. Later that summer, Congress passed the law that permanently funds the VCF until October 2090.
After the passage of the permanent funding, the VCF went back to the claimants who’d had their claims reduced by Bhattacharyya’s decision and awarded those claimants the unreduced amount.
One of Bhattacharyya’s current missions is to reduce the processing time for new claims to the VCF. In January 2017, the VCF was still reviewing claims from 2013-14. A little more than a year later, VCF staff had succeeded in shrinking that timeframe to around 18 months. By April 2021, the VCF had reduced its average processing time even further, to around 12 months.
Hearings Remain an Important Part of the Process
As Special Master Kenneth Feinberg stated as he ended his tenure with the VCF-and as Bhattacharyya reiterated in the Fund’s 20th Anniversary Special Report-hearings remain an integral part of the VCF compensation process, as they allow claimants to have their day in court and explain the magnitude of their losses.
Nearly 4,000 eligibility hearings took place during Feinberg’s time as Special Master. From 2014 to July 2021, the VCF conducted more than 2,400 appeal hearings, with most of those hearings taking place since 2017. Hearings continue to this day, although the Covid-19 pandemic has shifted them from in-person hearings to a virtual environment.
One big change in the hearings from the 2001 version of the VCF to the current VCF program is that hearings are currently held to hear appeals. The appeals can be for many reasons including such as the denial of a claim that relates to proof of presence in the 9/11 Disaster Area, the denial of compensation, or an appeal for additional compensation.
Haven’t Filed a VCF Claim? A Skilled VCF Benefits Attorney Can Help You
The permanent funding of the VCF means that first responders and survivors can file claims any time between now and October 2090. However, many who suffer from 9/11-related illnesses have no time to wait.
Having a team of experienced legal professionals on your side to navigate the VCF claims process can ensure that you receive the full compensation you need to pay for your care and compensate you for the harm inflicted on you and your family by the 9/11 terror attacks.
For a free case evaluation, contact a 9/11 VCF benefits attorney today.
