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(c) 2010-2024 Jon L Gelman, All Rights Reserved.

Monday, October 22, 2012

Unintended Consequences - Spine Epidurals: Multistate Meningitis Outbreak

Note: This was the most actively read post of 2012. It has been updated with the current CDC case count information and reposted. 12/25/2012.

Workers' Compensation benefits generally are payable when a condition arises out of the employment including the consequences of medical treatment. Injured workers' who have suffered meningitis as a result of the consequences of an an epidural injection flowing from treatment from a compensable accident may be entitled to receive workers' compensation benefits for the infection. Additionally, there maybe a separate claim against the manufacturers or supplier of the tainted product.

Pharmaceutical products provided as a workers' compensation benefit have been the focus of national attention. Pricing and regulation of of pharmaceuticals have been an ongoing challenge to the delivery of adequate care to injured workers and the existence of product contamination will surely exacerbate the issue further.

See, Gelman, Jon L., The Complex World of Workers' Compensation and Pharmaceutical Benefits, New Jersey Law Journal, Vol. 206, p. 5, October 2011.


State
Total Case Counts
Meningitis (with or without other infection)*
Stroke without Lumbar Puncture only
Paraspinal/Spinal Infection only
Peripheral Joint Infection only
Paraspinal/Spinal + Peripheral Joint Infection
Deaths
TOTALS
620
367
8
218
26
1
39
Florida (FL)
25
20
3
2
0
0
3
Georgia (GA)
1
1
0
0
0
0
0
Idaho (ID)
1
1
0
0
0
0
0
Illinois (IL)
2
2
0
0
0
0
0
Indiana (IN)
68
47
1
20
0
0
7
Maryland (MD)
25
24
0
1
0
0
2
Michigan (MI)
223
64
1
137
20
1
10
Minnesota (MN)
12
10
0
2
0
0
0
North Carolina (NC)
5
3
0
2
0
0
1
New Hampshire (NH)
13
9
0
0
4
0
0
New Jersey (NJ)
43
39
0
4
0
0
0
New York (NY)
1
0
0
1
0
0
0
Ohio (OH)
19
16
0
3
0
0
0
Pennsylvania (PA)
1
1
0
0
0
0
0
Rhode Island (RI)
3
2
0
1
0
0
0
South Carolina (SC)
1
1
0
0
0
0
0
Tennessee (TN)
124
76
3
43
2
0
14
Texas (TX)
2
2
0
0
0
0
0
Virginia (VA)
51
49
0
2
0
0
2
* Some patients with meningitis had other infections diagnosed in addition; to date, all of these other infections have been paraspinal/spinal infections. The patient reported to have a peripheral joint infection and a spinal/paraspinal infection had both a joint injection and a spinal/paraspinal injection.
Case counts by state are based on the state where the procedure was performed, not the state of residence.



The US Centers for Disease Control (CDC) is coordinating a multistate investigation of meningitis among patients who received epidural steroid injections (medication injected into the spine). Several of these patients have had strokes related to the meningitis. In several patients, the meningitis was found to be caused by a fungus that is common in the environment but rarely causes meningitis.
Current Situation
  • About the Investigation

    • CDC and FDA have confirmed the presence of a fungus known as Exserohilum rostratum in unopened medication vials of preservative-free methylprednisolone acetate (80mg/ml) from two of the three implicated lots from NECC (Lot #06292012@26, BUD12/26/2012 and Lot #08102012@51, BUD 2/6/2013).  The laboratory confirmation further links steroid injections from these lots from NECC to the multistate outbreak of fungal meningitis and joint infections.  Testing on the third implicated lot of methylprednisolone acetate and other NECC injectable medications continues.
    • As of October 22, 2012, a total of 54 patients have CDC laboratory-confirmed fungal meningitis. This form of fungal meningitis is not contagious. CDC’s laboratory has confirmedExserohilum rostratum in clinical specimens for all but two patients of these patients.  Of the other two patients, one has been found to be infected with Aspergillus fumigatus and one with Cladosporium. These fungi are common in the environment but were not a recognized cause of meningitis prior to this outbreak.
    • CDC continues to work with states to determine if there may be other fungal infections caused by exposure to NECC products beyond the three lots of preservative-free methylprednisolone acetate (80mg/ml) from NECC that were recalled on September 26, 2012. CDC does not have firm evidence that fungal infections have been caused by exposure to other NECC products.
    • CDC and state health departments estimate that approximately 14,000 patients may have received injections with medication from the three implicated lots of methylprednisolone and nearly 97% have now been contacted for further follow-up.
    • Patients and clinicians need to remain vigilant for onset of symptoms because fungal infectionscan be slow to develop. In this outbreak symptoms typically have appeared 1 to 4 weeks following injection, but it’s important to know that longer and shorter periods of time between injection and onset of symptoms have been reported. Therefore, patients and physicians need to closely watch for symptoms for at least several months following the injection. See updated Patient Guidance for more information, and contact your physician if you are concerned you may have become ill from your injection.
    • Information about the investigation and guidance for clinicians, including interim treatment guidelines, is available at  http://www.cdc.gov/hai/outbreaks/meningitis.html. CDC recommendations are subject to change as more information becomes available.

Total case count: 620 (Updated 12/17/12)
“All patients who may have received these medications need to be tracked down immediately. Patients can find the names of the clinics that used these medications on the CDC website,” said Benjamin Park, M.D., medical officer, Mycotic Diseases Branch, CDC. “It is possible that if patients with infection are identified soon and put on appropriate antifungal therapy, lives may be saved.”

Infected patients have developed a variety of symptoms approximately 1 to 4 weeks following their injection, including fever, new or worsening headache, nausea, and new neurological deficit (consistent with deep brain stroke). Some of these patients’ symptoms were very mild in nature. Cerebrospinal fluid obtained from these patients has shown findings consistent with meningitis.

On September 26, 2012, the New England Compounding Center voluntarily recalled the following lots of methylprednisolone acetate (PF) 80mg/ml:
Methylprednisolone Acetate (PF) 80 mg/ml Injection, Lot #05212012@68, BUD 11/17/2012
Methylprednisolone Acetate (PF) 80 mg/ml Injection, Lot #06292012@26, BUD 12/26/2012
Methylprednisolone Acetate (PF) 80 mg/ml Injection, Lot #08102012@51, BUD 2/6/2013

Physicians should immediately contact patients who have had an injection (e.g., spinal, joint) using any of the three lots of methylprednisolone acetate listed above to determine if they are having any symptoms. Although all cases detected to date occurred after injections with products from these three lots, out of an abundance of caution, CDC and the Food and Drug Administration (FDA) recommend that healthcare professionals cease use of any product produced by the New England Compounding Center until further information is available.

Patients who have had an epidural steroid injection since July 2012, and have any of the following symptoms, should talk to their doctor as soon as possible.
Worsening headache
Fever
Sensitivity to light
Stiff neck
New weakness or numbness in any part of your body
Slurred speech




Map of Healthcare Facilities that Received Three Recalled Lots* of Methylprednisolone Acetate (PF) from New England Compounding Center on September 26, 2012


See table for a complete list of health care facilities.

* Lot #05212012@68, BUD 11/17/2012; Lot #06292012@26, BUD 12/26/2012; Lot #08102012@51, BUD 2/6/2013
** All vials of methylprednisolone acetate that were sent to Nevada were recalled prior to use.
List of Healthcare Facilities that Received Lots of Methylprednisolone Acetate (PF) Recalled from New England Compounding Center on September 26, 2012
Facility NamePhone NumberCityState
California
CYPRESS SURGERY CENTER559-740-4094VISALIACA
ENCINO OUTPATIENT SURGICENTER818-986-1037ENCINO CA
UKIAH VALLEY MEDICAL CENTER707-463-7345UKIAHCA
UNIVERSAL PAIN MANAGEMENT661-267-6876 x166PALMDALECA
Connecticut
INTERVENTIONAL SPINE AND SPORTS MED203-598-7246MIDDLEBURYCT
Florida
FLORIDA PAIN CLINIC352-237-5906OCALAFL
INTERVENTIONAL REHABILITATION CENTER850-484-8800PENSACOLAFL
MARION PAIN MANAGEMENT CENTER352-622-1845OCALAFL
NORTH COUNTY SURGICENTER561-626-6446PALM BEACH GARDENSFL
ORLANDO CENTER FOR OUTPATIENT SURGERY407-426-8331ORLANDOFL
PAIN CONSULTANTS OF WEST FLORIDA850-494-0000PENSACOLAFL
SURGERY CENTER OF OCALA352-237-5906OCALAFL
SURGICAL PARK CENTER305-271-9100 x226MIAMIFL
Georgia
FORSYTH STREET AMBULATORY SURGURY CENTER478-749-1610MACONGA
Idaho
PAIN SPECIALISTS OF IDAHO208-522-7246IDAHO FALLSID
WALTER KNOX MEMORIAL HOSPITAL208-365-3561 x3342EMMETTID
Illinois
APAC CENTERS FOR PAIN MANAGEMENT708-483-7007WESTCHESTERIL
APAC CENTERS FOR PAIN MANAGEMENT773-935-2760CHICAGOIL
THOREK MEMORIAL HOSPITAL773-975-6734CHICAGOIL
Indiana
AMBULATORY CARE CENTER LLC812-475-1800EVANSVILLEIN
FORT WAYNE PHYSICAL MEDICINE260-436-9337FORT WAYNEIN
OSMC OUTPATIENT SURGERY CENTER574-266-4173ELKHARTIN
SOUTH BEND CLINIC574-237-9372SOUTH BENDIN
UNION HOSPITAL812-238-4964TERRE HAUTEIN
WELLSPRING812-376-0700COLUMBUSIN
Maryland
BALTIMORE PAIN MANAGEMENT410-682-5040BALTIMOREMD
BERLIN INTERVENTIONAL PAIN MANAGEMENT410-641-3759BERLINMD
BOX HILL SURGERY CENTER410-877-8141ABINGDONMD
GREENSPRING SURGERY CENTER410-653-0077BALTIMOREMD
HARFORD COUNTY ASC, LLC410-538-7000EDGEWOODMD
PAIN MEDICINE SPECIALISTS410-825-6945TOWSONMD
SURGCENTER OF BEL AIR410-638-5523BEL AIRMD
Michigan
MICHIGAN NEUROSURGICAL INSTITUTE810-606-7112GRAND BLANCMI
MICHIGAN PAIN SPECIALISTS734-995-7246BRIGHTONMI
NEUROMUSCULAR & REHABILITATION231-935-0860TRAVERSE CITYMI
SOUTHEAST MICHIGAN SURGICAL HOSPITAL586-427-1000WARRENMI
Minnesota
MAPS-EDINA MEDICAL PAIN CLINIC763-537-6000MINNEAPOLISMN
MAPS-MEDICAL ADVANCED PAIN763-537-6000FRIDLEYMN
MEDICAL ADVANCED PAIN SPECIALISTS763-537-6000 x238SHAKOPEEMN
MEDICAL ADVANCED PAIN SPECIALISTS.763-537-6000MAPLE GROVEMN
MINNESOTA SURGERY CENTER763-767-7139EDINAMN
MINNESOTA SURGERY CENTER-763-537-6000MAPLE GROVEMN
North Carolina
HIGH POINT SURGERY336-878-6048HIGH POINTNC
NORTH CAROLINA ORTHOPAEDIC CLINIC919-403-5148DURHAMNC
SURGERY CENTER OF WILSON252-237-5649WILSONNC
New Hampshire
DR. O'CONNELL'S PAIN CARE CENTER603-335-5070MERRIMACKNH
DR. O'CONNELL'S PAIN CARE CENTERS, INC603-692-3166SOMERSWORTHNH
New Jersey
CENTRAL JERSEY ORTHOPEDICS SPECIALISTS PC908-561-2122SOUTH PLAINFIELDNJ
EDISON SURGICAL CENTER732-452-0123EDISONNJ
IF PAIN ASSOCIATES / ISAIAH FLORENCE201-287-1100TEANECKNJ
PREMIER ORTHOPEDICS SURG. ASSOC., LLC856-690-1750VINELANDNJ
COMPREHENSIVE PAIN MANAGEMENT973-796-5216SPARTANJ
SOUTH JERSEY HEALTH CARE856-363-1558ELMERNJ
SOUTH JERSEY HEALTHCARE856-641-7557VINELANDNJ
Nevada
SAHARA SURGERY CENTER702-362-7874LAS VEGASNV
New York
BUTANI, SUNIL H., PHYSICIAN PC516-747-5042MINEOLANY
OBOSA MEDICAL SERVICES914-530-2323MOUNT VERNONNY
ROCHESTER BRAIN AND SPINE585-334-5560ROCHESTERNY
Ohio
BKC PAIN SPECIALISTS, LLC740-387-7246MARIONOH
CINCINNATI PAIN MANAGEMENT513-891-0022CINCINNATIOH
MARION PAIN CLINIC740-375-0200MARIONOH
ORTHO-SPINE REHABILITATION CENTER, INC.614-793-8817DUBLINOH
Pennsylvania
ALLEGHENY PAIN MANAGEMENT814-940-2000ALTOONAPA
SOUTH HILLS PAIN & REHAB ASSOCIATES412-469-7722JEFFERSON HILLSPA
Rhode Island
NEW ENGLAND ANESTHESIOLOGY (NEA)401-490-7530WARWICKRI
OCEAN STATE PAIN MANAGEMENT401-766-7700WOONSOCKETRI
OCEAN STATE PAIN MANAGEMENT401-884-6070EAST GREENWICHRI
South Carolina
INTERVENE MD843-216-4844MOUNT PLEASANTSC
Tennessee
PCA PAIN CARE CENTER865-835-5196OAK RIDGETN
SPECIALTY SURGERY CENTER931-484-2500 x125CROSSVILLETN
ST. THOMAS OUTPATIENT NEUROSURGICAL615-341-3425NASHVILLETN
Texas
DALLAS BACK PAIN MANAGEMENT214-445-5077DALLASTX
HARRIS METHODIST SOUTHLAKE CENTER817-748-8778SOUTHLAKETX
Virginia
INSIGHT IMAGING-ROANOKE540-581-0882ROANOKEVA
NEW RIVER VALLEY SURGERY CENTER540-639-5888CHRISTIANSBURGVA
West Virginia
PARS INTERVENTIONAL PAIN304-865-7277PARKERSBURGWV

From The New England Journal of Medicine

ORIGINAL ARTICLE

Brief Report: The Index Case for the Fungal Meningitis Outbreak in the United States

A.C. Pettit and Others

REVIEW ARTICLE

Current Concepts: Fungal Infections Associated with Contaminated Methylprednisolone Injections — Prelininary Report

C.A. Kauffman, P.G. Pappas, and T.F. Patterson

....
For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.

Saturday, October 20, 2012

NJ Workers Compensation Ranked Nation's 7th Highest Premium Rate

A recent study published by the State of Oregon rank's New Jersey with the 7th highest workers' compensation premium in the United States.
More on Workers' Compensation Premiums

Sep 12, 2012
Throughout the nation Workers' Compensation systems have been impacted by health care costs that now take a large piece of the premium dollar. Traditional health care offered by employers mirrors the same problem of ...
Mar 04, 2012
Premium Fraud: North Carolina Man Sentenced on Workers' Compensation Insurance Scam. English: The Seal of the United States Federal... Image via Wikipedia. Wifredo A. Ferrer, United States Attorney for the Southern ...
Jun 05, 2012
The settlement is a result of AIG misreporting $2.12 billion of workers' compensation premium as other lines of insurance. As part of the settlement agreement, AIG agreed to pay a national penalty of $100 million, and $46.5...
Sep 11, 2012
The defense based NY Workers' Compensation Policy Institue has published a report reflecting that NY has the highest premium assessments in the country for workers' compensation. Note that NJ is not far behind when ...

Friday, October 19, 2012

Italy's Supreme Court Rules Cell Phone Brain Cancer Work Related

Italy's Supreme Court today upheld a work-related brain cancer claim for an executive who was required to use a cell phone on the job. Workers' Compensation benefits were awarded. The Court relied upon scientific studies (Hardell) to support its decision. 

The World Health Organization (WHO) has reported that the International Agency for Research on Cancer has classified electromagnetic fields produced by mobile phones are possibly carcinogenic to humans.

Click here to read: "Italy court ruling links mobile phone use to tumour" (Reuters)


"Marcolini developed a so-called neurinoma affecting a cranial nerve, which was apparently not cancerous but nevertheless required surgery that badly affected his quality of life.He initially sought financial compensation from the Italian Workers' Compensation Authority (INAIL) which rejected his application, saying there was no proof his illness had been caused by his work. But a court in Brescia later ruled there was a causal link between the use of mobile and cordless telephones and tumours. Italy's supreme court rejected an INAIL appeal against that ruling on Oct. 12 though its decision was only reported on Friday."


Read More About Cell Phone Use and Work-Related Exposures

Sep 12, 2012
In a new report by 31 scientists meeting at the World Health Organization's International Agency for Research on Cancer (WHO/IARC) it was found that using a mobile phone may increase your risk for certain kinds of brain ...
Aug 09, 2012
As the controversy continues to rage over whether cell phone radiation can be linked to an increased risk of brain cancer, recently introduced legislation in the US Congress would offer the public more information to make ...
May 23, 2012
A recent survey reflects increase employer concern over cell phone use while driving. Such written policies may encourage courts to bar employees who engage in such activity from recovery under workers' compensation ...

May 31, 2011
After years of review, the World Health Organization (WHO) has classified the radio frequencies utilized by cell phones as possibly carcinogenic to human thereby opening the door to potential wave of workers' compensation...

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Federal Government Urged to Protect Zadroga (9/11 Health Fund) Act from Looming Cuts

Lawmakers Advocate for the Heroes Who Answered the Call of Duty on 9/11 to be Treated With Same Dignity As Military Veterans -- Slashing 9/11 Treatment and Compensation Funds Violates Congressional Intent and Contradicts Precedent to Aid Injured and Sick

With the deadline nearing for Congress to negotiate a balanced deficit-cutting package or face deep automatic cuts across federal programs - known as sequestration - U.S. Senators Kirsten Gillibrand (D-NY) and Charles Schumer (D-NY), joined by Representatives Carolyn Maloney (D-NY), Jerrold Nadler (D-NY), Peter King (R-NY), and 9/11 first responders and survivors, stood at Ground Zero today calling on the Office of Management and Budget (OMB) to exempt the James Zadroga 9/11 Health and Compensation Act from automatic budget cuts should sequestration go into effect on January 1, 2013. The 2013 budget cuts already exempt veterans and at least six federal programs which aid the sick and injured from sequestration cut, including the Payment to Radiation Exposure Compensation Trust Fund, Radiation Exposure Compensation Trust Fund, Energy Employees Occupational Illness Compensation Fund, Vaccine Injury Compensation, Vaccine Injury Compensation Program Trust Fund, and the Black Lung Disability Trust Fund. In total, the OMB has included 150 exemptions to date – including the Federal Crop Insurance Corporation Fund and pensions for former Presidents.

During last summer's debt-ceiling crisis, a deal was reached to automatically cut over $1 trillion in defense and domestic programs, known as sequestration, if a "super committee" could not reach a balanced deficit reduction plan. Despite clear precedent for an exemption for health and compensation programs, a preliminary report by OMB shows that $24 million is slated to be slashed from the 9/11 Bill's Victim Compensation Fund, and an additional $14 million would be cut from the World Trade Center Health Fund in 2013.

The lawmakers emphasized that Congressional members from both parties must come together to work towards an alternative to sequestration – a process they believe to be the wrong approach to deficit reduction, and was only to be triggered as a matter of last resort. In the event that these automatic cuts to military and non-discretionary spending do take place, however, New York’s elected leaders will fight to save 9/11 funds from any sequester cuts.

The lawmakers wrote in a September 28th letter to OMB Acting Director Zients, “[W]e all agree that applying sequestration to these two programs [established by the James Zadroga 9-11 Health and Compensation Act] does not make sense, is not consistent with Congressional intent, does not follow precedent regarding trust funds provided for victims, and we would urge OMB to reconsider this initial finding if it is required to proceed with a sequester… We are concerned that OMB has not fully investigated the facts under which these programs operate.”

“Nothing exemplifies this unbalanced and draconian approach to deficit reduction more than asking our heroes who have already sacrificed so much to sacrifice yet again,” saidSenator Gillibrand. “Our 9/11 heroes who answered the call of duty should be treated with the same dignity as our veterans. Just as we have come together as Democrats and Republicans to fight for our heroes, I urge our colleagues to do the same and work towards a balanced approach that keeps struggling families from sacrificing the most.”

“This is one of the most poignant examples of why we must work to avert the sequester,” said Senator Schumer. “We can entirely avoid this problem if both parties agree to support a balanced deficit reduction plan that includes revenues as well as sensible savings. But in the event that they don't, we must work to make sure there that the burden does not fall on the national heroes who are finally receiving the help they deserve through the Zadroga Act. Veterans have been exempted from sequestration and the heroes who have rushed to towers after 9/11 should be treated the same. They risked their lives in a time of war and suffered for it.”

“Slashing tens of millions of dollars from the World Trade Center Health and Victim Compensation Funds is just plain wrong, said Congresswoman Maloney. “Both are paid for with a dedicated funding stream and do not add one red cent to our nation’s budget deficit. This is a time for all members of Congress to put aside those issues that may divide us and come together as we did in the wake of the 9-11 attacks. After giving our word to those health was affected that we would ‘never forget’ and promising them that we would help them deal with the serious health consequences of responding to the attacks, it would be dishonorable to say now, ‘we take that back.’”

“We are prepared to fight for every last dollar we allocated for our bill, the James Zadroga 9/11 Health and Compensation Act, and ensure that we do not ration assistance for the sick,” said Congressman Nadler. “Thousands of 9/11 responders and survivors are sick today because of their exposure to toxins in and around Ground Zero, and they depend on this funding for their health and well-being. We are calling on the Office of Management and Budget to reconsider its decision on exempting Zadroga from the sequester.”

“We have come too far and our 9/11 heroes have endured too much for this funding to be subjected to a bureaucratic reduction,” said Congressman King. “It would be a cruel hoax to finally allow these individuals to start their necessary treatment, only to find out they will not be able to continue it through no fault of their own.”

“Were I went to school 2 + 2 = 4. I am not sure how they do their math in D.C. The Zadroga bill reduces the deficit by $433 million, said John Feal, Founder and President of the FealGood Foundation. “Why cut a program that reduces the deficit ? We should be talking about adding funds to the bill and keeping it up and running for more than 5 years, certainly not talking about reducing it.”

“Union members fought far too long for health care and compensation for the victims, first responders, recovery workers, and residents of Lower Manhattan to allow that hard fought victory to be eroded by shameful budget cuts,” said New York State AFL-CIO President Mario Cilento. “I commend Senators Schumer and Gillibrand and Representatives Carolyn Maloney, Jerry Nadler, Peter King and the rest of the New York Congressional delegation for standing up for the heroes of 9/11 and pledge that we will not rest until they receive the care and support they deserve.”

“We fought hard for healthcare for those made sick by 9/11 and we will continue to fight for those among us who risked their health, their lives and brought Lower Manhattan back,” said Catherine Hughes, Chair of Community Board 1. “Our heroes must get the healthcare that they deserve period. As a nation we must pay our debts and eliminate government deficits, but the debt we owe to our first responders matters even more.”

In addition to noting that cuts to these programs would be devastating for the families of 9/11 victims and first responders, the five members of Congress also pointed out three key reasons why the 9/11 programs should be exempt from automatic cuts:

· The 9/11 health programs should be added onto the list of federal health and compensation programs that are already immune from cuts. There are currently 150 exemptions, including at least six programs established for injuries and illnesses, signed into law by February 2010—nearly a year before the 9/11 health bill was passed. Had the 9/11 health bill existed then, the 9/11 programs would have been among the items protected from sequestration.

· The proposed budget cuts are an affront to the 9/11 health law that was already formulated to cut the deficit. The 9/11 law was already devised to be fully paid for and to cut the deficit. According to the Congressional Budget Office's estimate, the law slashes $433 million from the deficit.

· The preliminary budget fails to take into account New York City’s agreement to voluntarily pay 10% share for the 9/11 program. Under federal rule, “activities financed by voluntary payments to the government” are exempt from sequester. Lawmakers pointed out that according to this statute, the City’s voluntary contribution should be protected from the sequester process.

The budget already spares veterans from most of the automatic budget cuts. OMB released a letter in April assuring that programs under the Veterans Affairs agency would be exempt from sequestration.

Full text of the lawmakers’ letter from September 28th is below:

Dear Acting Director Zients,

We are writing to convey our deep concern about the Office of Management and Budget’s (OMB) initial determination that the programs established by the James Zadroga 9/11 Health and Compensation Act are subject to sequestration under the Sequestration Transparency Act of 2012. As Members of Congress, some of whom voted for the “Budget Control Act of 2011” and some of whom voted against, we all agree that applying sequestration to these two programs does not make sense, is not consistent with Congressional intent, does not follow precedent regarding trust funds provided for victims, and we would urge OMB to reconsider this initial finding if it is required to proceed with a sequester.

The September 14, 2012 “OMB Report Pursuant to the Sequestration Transparency Act of 2012 (P. L. 112–155)” identifies the World Trade Center (WTC) Health Program, administered by the Department of Health and Human Services and the September 11th Victim Compensation Fund (VCF), administered by the Department of Justice as programs subject to sequestration. Both of these programs are listed as being subject to a 7.6 sequester percentage with the WTC Health Program’s $190 million budget authority for FY 2013 slated for a $14 million reduction and the VCF’s $322 million budget authority reduced by $24 million. Not only would these cuts be devastating for the victims that need assistance, we are concerned that OMB has not fully investigated the facts under which these programs operate.

For example, the 7.6% sequester estimate was applied to the total $190 million health program instead of subtracting the 10% payment volunteered by the City of New York prior to calculating the cut. Pursuant to the PAYGO Statue, Section 11(g) ‘‘Activities financed by voluntary payments to the Government for goods or services to be provided for such payments” are exempt from sequester. The City of New York has voluntarily agreed, through a memorandum of understanding (MOU), to pay a 10% share for the program. Therefore, including their portion of the funding violates the sequester process.

In addition, as OMB is aware, the PAYGO Statute which was signed into law in February 2010 includes 150 exemptions. Among the programs exempted are similar health and compensation programs that have been established for other injuries and illnesses such as: the Payment to Radiation Exposure Compensation Trust Fund, Radiation Exposure Compensation Trust Fund, Energy Employees Occupational Illness Compensation Fund, Vaccine Injury Compensation, Vaccine Injury Compensation Program Trust Fund, and the Black Lung Disability Trust Fund to name a few. But the 9/11 health and compensation funds did not exist at the time the PAYGO Statute was enacted. The James Zadroga 9/11 Health and Compensation Act, which established these funds, was not passed by the Congress until December 2010 and was signed into law by the President in January of 2011. Clearly had the 9/11 Heath and Compensation programs existed in February 2010, when the PAYGO law was passed, they would have been included on the list of specific exemptions and therefore we request that both the health and compensation programs are excluded from sequestration.

Moreover, the James Zadroga 9/11 Health and Compensation Act, when enacted, was not only fully PAYGO compliant with a dedicated stream of revenue that fully pays for the program, but in fact provided an additional $433 million in deficit reduction, revenue above what the Act spent. Given that it was fully PAYGO compliant and in fact in the end will lead to over $400 million in deficit reduction we do not believe that subjecting the two programs to sequester is proper or consistent with the precedent set by similar health and compensation programs provided to injured workers.

In conclusion, we know that the task before OMB is difficult and it is our sincere hope that Congress will find an alternative to sequestration. However, as your report states on page one, “The estimates and classifications in the report are preliminary. If the sequestration were to occur, the actual results would differ based on changes in law and ongoing legal, budgetary, and technical analysis.” We therefore write to you in the hope of pointing out that we do not believe that Congress intended to have these two programs fall under sequestration.
....