Cancer Coverage under the 9/11 Health and Compensation Act
History of Cancer Coverage
The James Zadroga, 9/11 Health and Compensation Act of 2010 and its Reauthorization in 2015 as passed by Congress and signed by President Obama, included a list of specific conditions that included respiratory, gastrointestinal, and mental health conditions that were to be covered by the newly created World Trade Center Health Program. The list of WTC-related conditions that the program would cover was identical to the list of conditions that had been used in the preexisting WTC Responder Medical Monitoring and Treatment Program (MM&TP). It was developed by the WTC Centers of Excellence and NIOSH at the start of the federally funded treatment in late 2006. The list was based on the clinical experience and peer reviewed scientific studies of the occupational safety and health centers before federal treatment funding was available.
Process for Adding Cancer to Covered Conditions
While the law as passed did not include Cancer as a covered condition for either the World Trade Center Health Program or the reopened September 11th Victim Compensation Fund, the legislation did however have specific provisions and mechanisms in the statute that allowed for a review and consideration of Cancer and other emerging injuries and illnesses for inclusion on the list of covered conditions. They are:
1. Mandated Review by the World Trade Center Administrator
The 2010 law provided a process for the World Trade Center Program Administrator could add to the list of covered conditions. Specifically, the Program Administrator is required to periodically determine if cancer or a type of cancer should be added to the list of covered conditions, with the first such determination required within 180 days of the original enactment. This determination shall be based on a review of published evidence.
Under this periodic review, if the administrator determined that cancer or a type of cancer should be added to the list of covered conditions, then the Administrator would make this addition via proposed regulation. If the administrator determined that cancer or a type of cancer should not be added to the list, then the Administrator would publish an explanation for this decision in the Federal Register. Such a determination would not preclude the addition of cancer or a type of cancer to the list at a later date. If the Administrator determines that a proposed rule should be promulgated to add a condition to the list of WTC-related conditions, he or she may also request a recommendation of the Advisory Committee or publish a proposed rule in the Federal Register.
2. Petitioning the Administrator
The law also provides a petition process. If the Administrator receives a petition from an interested party to add a condition to the list, then the administrator shall, within 60 days, request a recommendation of the Scientific and Technical Advisory Committee or publish a proposed rule in the Federal Register or publish a notice in the Federal Register of the determination not to add a condition to the list of WTC-related conditions and the reason why; or publish in The Federal Register a determination that insufficient evidence exists to take action on the recommendation.
The petition can be from an interested party including a representative of an organization representing WTC responders, a medical association, a Clinical Center of Excellence or Data Center, a state or political subdivision of a state, or any other interested person. Here is information on the petition process on the World Trade Center health Program Website.
WTC Scientific and Technical Advisory Committee (STAC)
The legislation also created World Trade Center Health Program Scientific and Technical Advisory Committee or STAC made up of scientific and technical experts as well as representatives of 9/11 Responder and Survivors. The statue requires the administrator to seek advice from the STAC with regard to determining eligibility criteria for responder and survivor membership in the Program, with regard to identifying research needs for the Program and allows the administrator to consult with the STAC regarding whether a particular health condition should be added to the List of WTC-Related Health Conditions.
Since the original legislation was signed by the President on January 2, 2011, Dr. John Howard, the World Trade Center Health Program Administrator proposed and finalized World Trade Center Health Program Requirements for the Addition of New WTC-Related Health Conditions which can be viewed here.
While Dr. Howard in his initial periodic review mandated by the law in July of 2011 determined that there was insufficient evidence at that time to support the inclusion of Cancer as a covered condition he has since made several additions to the list of covered conditions.
Under the review requirements of the legislation the STAC committee started its review in a series of meetings from November 11, 2011 to March 2012. The committee reviewed the inclusion of different cancers under the program and made a recommendation to the Administrator that Dr. Howard substantially adopted and proposed the Federal rule that would include 50 types of cancer to the on April 25th, 2012 and were finalized on September 12, 2012 that was effective October 12th 2012.
When Dr. Howard made the decision to agree with the recommendations of the Science Technical Advisory Committee and add 50 cancers to the list of covered conditions, it received criticism by some that it was not justified by the science at the time. “Science lacking on 9/11 and cancer, experts say” , USA Today, June21, 2012, “Sept. 11 Health Fund Given Clearance to Cover Cancer” New York Times, June 8th, 2012. As the New York Times reported, Dr. Howard explained his decision:
But in a lengthy report explaining his decision, Dr. Howard said that a New York Fire Department study published last fall in the British medical journal The Lancet, which showed that firefighters exposed to ground zero toxic substances had about 20 percent higher rate of cancer than firefighters who were not exposed, had provided a strong foundation for a conclusion that some cancers had been caused by exposure to the World Trade Center debris.
Beyond the Lancet study, he said, he had relied on recommendations made in late March by a scientific and technical advisory committee consisting of experts from the fields of cancer, environmental medicine, toxicology and epidemiology as well as neighborhood activists and union officials. He fully adopted the committee’s recommendation that 14 broad categories of cancer, encompassing 50 specific types, should be deemed as related to the attacks.New York Times, “Sept. 11 Health Fund Given Clearance to Cover Cancer,” June 8th, 2012.
Dr. Howard’s basic argument in accepting the recommendation of the STAC committee was that there is clear peer reviewed scientific evidence that the chemical and toxins present at the World Trade Center site to which Responders and Survivors were exposed to cause certain cancers. These determinations had already been made in reviews by the National Toxicology Program and the International Agency for Research on Cancer (IARC)
In April of 2013, the Administrator made some changes in the certification requirements for Breast Cancer, which had been included on the original list of covered Cancers. They can be viewed here.
On July 2, 2013 responding to a petition by the New York Patrolmen’s Benevolent Association, Dr. Howard proposed that Prostate Cancer be added to the list of covered conditions. Public comment on proposed addition of Prostate Cancer can be viewed here. Dr. Howard made a final determination to add Prostate Cancer to the list of Covered conditions, which can be viewed here, that was published on September 19th 2013.
Current Cancer Coverage
The current list of cancers included that are covered by the program can be found here on the programs website. There is no deadline for applying for treatment to the World Trade Center Health Program for eligible 9/11 Responder or Survivor with Cancer.
When the WTC Health Administrator added cancers to the list of covered conditions, he established minimum latency periods for the different types of cancers that were now being covered.
Latency periods are the time based on medical science that it would be expected that a type of cancer would develop after exposure to carcinogens. In the case of 9/11 and World Trade Center Health Program covered cancers, the time from the exposure to carcinogens at Ground Zero, the Pentagon and the Shanksville crash site to when a cancer could be diagnosed and be expected to be caused by exposure to carcinogens from 9/11. These latency periods are subject to change, as Dr. Howard has already done on some latency periods based on improved understanding of developments in medical science.
Additional information on Cancer Coverage for the World Trade Center Health Program can be found on the Program website’s frequently asked questions here.
Cancer and the September 11th Victim Compensation Fund
The James Zadroga, 9/11 Health and Compensation Act of 2010 and its reauthorization in 2015 as passed by Congress and signed by President Obama established two programs, the World Trade Center Health Program, run by the National Institute of Occupational Health under the Department of Health and Human Services (HHS) and the reopened September 11th Victim Compensation Fund (VCF), run by the Department of Justice. Under the law, the Victim Compensation Fund that had originally been created in the aftermath of 9/11 was reopened and the Attorney General appointed Sheila Birnbaum as the Special Master, to run the program in 2011.
In order to save administrative expenses so that there would be more money for awards and to have uniformity, the Victim Compensation Fund Special Master determined that the VCF would follow the World Trade Center Health Program list of covered conditions when making determinations as to what injuries would be compensated for. Here are the rules under which the VCF works under. All of the Cancers on the list of covered conditions for the World Trade Center Health Program are injuries and illnesses that a claim for compensation can be made for. Here are the frequently asked questions on the Victim Compensation Fund website.