[Federal Register: August 10, 2006 (Volume 71, Number 154)]
[Rules and Regulations]
[Page 46027-46050]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10au06-7]
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Part V
Department of Justice
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Office of Justice Programs
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28 CFR Part 32
Public Safety Officers' Benefits Program; Final Rule
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DEPARTMENT OF JUSTICE
Office of Justice Programs
28 CFR Part 32
[Docket No.: OJP (OJP)-1333]
RIN 1121-AA56
Public Safety Officers' Benefits Program
AGENCY: Office of Justice Programs, Justice.
ACTION: Final rule
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SUMMARY: The Bureau of Justice Assistance (``BJA''), Office of Justice
Programs, Department of Justice, published the proposed rule for the
Public Safety Officers Benefits (``PSOB'') Program on July 26, 2005, 70
FR 43,078. During the comment period, BJA received comments on its
proposed rule from numerous parties. After further review of the
proposed rule and very recent amendments to the underlying statute, and
careful consideration and analysis of all comments, BJA made amendments
that are incorporated into this final rule.
DATES: Effective September 11, 2006.
FOR FURTHER INFORMATION CONTACT: Hope Janke, Counsel to the Director,
Bureau of Justice Assistance, at (202) 514-6278, or toll-free at 1
(888) 744-6513.
SUPPLEMENTARY INFORMATION: BJA published the proposed rule for the PSOB
Program on July 26, 2005. During the comment period, BJA received
comments on its proposed rule from a number of interested parties:
National police and fire associations; municipal police, fire, and
rescue departments; PSOB hearing officers; survivors of fallen public
safety officers; and individual concerned citizens. Additionally,
Members of Congress commented on the proposal. Many of the comments
related to the provisions implementing the Hometown Heroes Survivors
Benefits Act of 2003 (``Hometown Heroes Act''), Pub. L. 108-182. Many
other comments related to various definitions contained in the proposed
rule. One commentator expressed approval of the proposed rule for
implementing the PSOB Act instead of merely restating or rephrasing the
statutory language; BJA has continued this approach in the final rule.
After careful consideration and analysis of all comments received, BJA
made amendments that are incorporated into this final rule. In
addition, the final rule contains some clarifying changes to provisions
in the proposed rule where there were some previously unnoticed
ambiguities, or where the language was more complex than necessary;
also, the final rule in places changes proposed language that was
unintentionally more restrictive than the statute (e.g., the
definitions of ``parent-child relationship,'' ``adopted child,''
``intentional misconduct,'' and several education-benefits provisions).
A discussion of the comments and changes follows.
The first part of the discussion generally describes the structure
and background of the PSOB Program and aspects of the history of its
administration by BJA. The second part of the discussion covers the
recent changes to the PSOB Act contained in Public Law 109-162 (``DOJ
Reauthorization Act''). Two days after the closing of the comment
period for the proposed rule, certain amendments to the PSOB Act were
passed by the House of Representatives. Because enactment of these
amendments into law appeared to be likely before the end of 2005, BJA
deemed it prudent to wait before publishing the final rule. In fact,
the amendments (with other changes to the PSOB statute), contained in
the bill that became the DOJ Reauthorization Act, were passed by the
Senate on December 17th and by the House of Representatives on the
following day, and were signed into law by the President on January 5,
2006. Accordingly, the final rule contains several clarifying and
conforming changes occasioned by these statutory amendments. The third
part of the discussion addresses the comments received by BJA that
relate to the proposed provisions implementing the Hometown Heroes Act,
and explains the changes being made in the final rule in response to
those comments. The fourth part is a specific discussion of the terms
``line of duty'' and ``authorized commuting,'' in response to a number
of comments requesting clarification on these definitions. The last
part of the discussion addresses the remainder of the comments in a
section-by-section analysis, indicating where changes to provisions
were made, or (as the case may be) where BJA determined no changes to
be necessary.
As a preliminary matter, BJA wishes to correct two citations made
on the same page, 70 FR at 43,080, of the preamble to the proposed
rule: (1) In the discussion of the authority of the publication, Legal
Interpretations of the Public Safety Officers' Benefits Act, and the
reliance of courts thereon, one decision mistakenly was included in the
list of citations, which should have read: ``E.g., Chacon v. United
States, 48 F.3d 508 (Fed. Cir. 1995), aff'g 32 Fed. Cl. at 687-688;
Durco, 14 Cl. Ct. at 427; Tafoya v. United States, 8 Cl. Ct. 256, 262-
265 (Cl. Ct. 1985); North, 555 F.Supp. at 386; Morrow, 647 F.2d at
1101-1102.''; and (2) in the discussion of jurisdictional cases that
had nullified the rule of the jurisdictional holding of Russell, 637
F.2d at 1256-1260, the list of citations, from which two decisions
inadvertently were omitted, should have read: ``Davis v. United States,
169 F.3d 1196 (9th Cir. 1999); Wydra v. United States, 722 F.2d 834
(D.C. Cir. 1983); Tafoya v. Dep't of Justice, 748 F.2d 1389 (10th Cir.
1984); see also, e.g., Durco v. LEAA, No. 86-3660, order (3d Cir., Dec.
24, 1986); Russell v. Law Enforcement Assistance Administration, 637
F.2d 354 (5th Cir. Unit A 1981); Lankford v. Law Enforcement Assistance
Administration, 620 F.2d 35 (4th Cir. 1980); LaBare v. United States,
No. C04-4974 MHP, slip op. at 3-5 (N.D. Ca. Mar. 10, 2005); Ramos-
V[eacute]lez v. United States, 826 F.Supp. 615 (D. P.R. 1993); Thomas
v. United States, No. 80-6511-Civ-ALH, order (S.D. Fl., Mar. 16,
1981).''
I. General Background
An individual serving a public agency does not have an automatic or
freestanding statutory right to a PSOB Act death or disability benefit.
In order to qualify for the PSOB Act death or disability benefit,
rather, a claimant must demonstrate (and BJA must ``determine[]'')
under ``regulations issued pursuant to'' the Act, ``that a public
safety officer has died as the direct and proximate result of a
personal injury sustained in the line of duty,'' 42 U.S.C. 3796(a), or
``that a public safety officer has become permanently and totally
disabled as the direct result of a catastrophic injury sustained in the
line of duty,'' id. 3796(b). Thus, in death and disability cases, the
Act requires BJA to determine two distinct issues: First, the status of
the individual--whether he was a public safety officer; and second, the
circumstances of his death or disability--whether it was directly and
proximately caused by a line of duty injury.
The PSOB Act is an effort to ``balance[] `compensating for
inadequate state and local benefits [with] budgetary considerations and
* * * fears that federal assumption of full responsibility for
compensating the families of deceased officers would weaken the federal
system and allow states and municipalities to evade their
responsibility.' '' Chacon v. United States, 32 Fed. Cl. 684, 687
(1995) (citing Russell v. Law Enforcement Assistance Admin. 637 F.2d
1255, 1261 (9th Cir. 1980)), aff'd, 48 F.3d 508 (Fed.
[[Page 46029]]
Cir.); see Rose v. Arkansas State Police, 479 U.S. 1 (1986) (per
curiam); Holstine v. Dep't of Justice, No. 80-7477, slip op. at 2 (9th
Cir., Aug. 4, 1982), 688 F.2d 845, 846 (table). To this end (and
sharply unlike the case with PSOB Act education benefits, which the law
provides that the Attorney General ``shall provide,'' 42 U.S.C. 3796d-
1(a)(1), or ``shall approve,'' id. 3796d-2(b)), the Act expressly
entrusts vast administrative and interpretive authority to BJA in
defining the very right to a death or disability benefit--the benefit
shall be paid only when ``the Bureau of Justice Assistance * * *
determines, under [its own] regulations that a public safety officer
has died as the direct and proximate result of a personal injury
sustained in the line of duty,'' id. 3796(a), or ``that a public safety
officer has become permanently and totally disabled as the direct
result of a catastrophic injury sustained in the line of duty,'' id.
3796(b). The Act--in at least four places--expressly authorizes BJA to
issue regulations, id. 3796(a) & (b), 3796c(a), and 3796d-3(a), and
goes on to provide that the regulations issued by BJA ``will be
determinative of conflict of laws issues arising under'' the Act, and
that, although BJA ``may utilize such administrative and investigative
assistance as may be available from State and local agencies[,
r]esponsibility for making final determinations shall rest with the
Bureau.'' Id. 3796c(a) & (b). Clearly, the legislative intention is for
BJA to exercise its discretion and expertise to administer the Act and
to define and ``determine[,]'' consistent with the Act as a whole, the
circumstances under which death and disability benefits should be
extended. See, e.g., Porter v. United States, 64 Fed. Cl. 143 (2005),
aff'd, No. 05-5105, order (Fed. Cir., Apr. 6, 2006).
Carrying out this legislative intention has been challenging; since
the PSOB Act's enactment into law, Public Law 94-430, 90 Stat. 1346,
1346-1348 (1976), the Act has been amended no fewer than eighteen
times, sometimes creating overlapping statutory structures.\1\ These
myriad amendments (or, rather, some of them) have allowed some
ambiguities and imprecision in the Act that BJA has had to work through
in the thousands of individual PSOB Act benefit claims it has processed
in the thirty years since the program began. For example:
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\1\ E.g., Pub. L. 96-157, sec. 2, 93 Stat. 1167, 1219 (1979);
Pub. L. 98-411, sec. 204, 98 Stat. 1545, 1561 (1984); Pub. L. 98-
473, secs. 609F, 609Z, 98 Stat. 1837, 2098, 2107 (1984); Pub. L. 99-
500, sec. 101(b) (sec. 207), 100 Stat. 1783, 1783-56 (1986); Pub. L.
99-591, sec. 101(b) (sec. 207), 100 Stat. 3341, 3341 56 (1986); Pub.
L. 100-690, secs. 6105, 6106, 102 Stat. 4181, 4341 (1988); Pub. L.
101-647, secs. 1301-1303, 104 Stat. 4789, 4834 (1990); Pub. L. 102-
520, 106 Stat. 3402 (1992); Pub. L. 103-322, sec. 330001(e), 108
Stat. 1796, 2138 (1994); Pub. L. 104-238, 110 Stat. 3114 (1996);
Pub. L. 105-180, 112 Stat. 511 (1998); Pub. L. 105-390, 112 Stat.
3495 (1998); Pub. L. 106-276, 114 Stat. 812 (2000); Pub. L. 106-390,
sec. 305, 114 Stat. 1552, 1573 (2000); Pub. L. 107-56, sec. 613, 115
Stat. 272, 369 (2001); Pub. L. 107-196, 116 Stat. 719 (2002); Pub.
L. 108-182, 117 Stat. 2649 (2003); Pub. L. 109-162, sec. 1164, 119
Stat. 2960, 3120 (2006); see also Pub. L. 107-37, 115 Stat. 219
(2001); Pub. L. 107-56, secs. 611, 612, 115 Stat. at 369.
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(1) As originally enacted, the PSOB Act provided only for death
benefits to the statutorily-designated survivors (including any
``child'') of a fallen public safety officer. See 42 U.S.C. 3796(a).
For this reason, it is unremarkable that the Act should define
``child'' to mean ``any natural, illegitimate, adopted, or posthumous
child or stepchild of a deceased public safety officer who, at the time
of the public safety officer's death, is * * * 18 years of age or
under.'' See id. 3796b(3)(i). Analytically speaking, this definition
was undisturbed when the Act subsequently was amended to provide
benefits to disabled public safety officers. See id. 3796(b). But
when--still later--the Act was further amended to provide education
benefits to any ``dependent * * * child'' of a deceased or disabled
public safety officer, see id. 3796d-1(a)(1), a patent conflict
manifested itself: Under the literal terms of the Act, by definition no
one could be a ``child'' at all, unless his public safety officer
parent were dead, but the Act also clearly commanded that a ``child of
any eligible public safety officer''--which includes any living
disabled officer--was entitled to the Act's education benefits.
Exercising the considerable interpretative authority given to it by
statute, BJA has understood the education-benefits provision to be in
the nature of a pro tanto amendment to the PSOB Act's definition of
``child'' and thus consistently has construed that definition to apply
only to the factual situation it obviously contemplates. See, e.g., 70
FR at 43084 (proposed definition of ``Child,'' for codification at 28
CFR 32.3).
(2) The PSOB Act contains several ``disentitling'' provisions,
relating to the actions or status of the officer himself, that prevent
payment of benefits under various circumstances, such as the suicide,
intentional misconduct, voluntary intoxication, or gross negligence of
the officer. See 42 U.S.C. 3796a(1)--(3). Another ``disentitling''
provision, relating to the actions or status of a potential beneficiary
(as opposed to the actions or status of the officer himself), operates,
for example, to prevent payment of benefits to an officer's murderer.
See id. 3796a(4) (2006). Yet another ``disentitling'' provision, added
to the Act in 1984, forbade BJA from paying a benefit ``to any
individual employed in a capacity other than a civilian capacity.'' See
id. 3796a(5) as in effect on Jan. 4, 2006. At first glance, this
appears to be an unremarkable provision against double-payment of
benefits: When military death or disability benefits are payable,
civilian benefits are not. The literal text of the provision, however,
accomplishes this result only in the case of a disabled officer whose
employment was other than in a civilian capacity (e.g., a disabled
military police officer); but if the officer is dead, payments, if any,
must go ``to'' his statutory survivors--thus putting their actions or
status (not the officer's) at issue. Following the literal text of the
provision, therefore, would have meant that if a police officer were to
die in the line of duty survived by a husband who is a Captain on
active duty in the Reserves, the husband could not be paid a PSOB Act
death benefit. Mindful of the canon that a statute may be construed so
as to avoid plainly-absurd results entailed in a literal reading,\2\
BJA has understood this provision within the whole context of the Act
to prohibit payment only when the public safety officer himself was
employed in a capacity other than a civilian capacity. See, e.g., 70 FR
at 43087 (for codification at 28 CFR 32.6(a)) (``No payment shall be
made with respect to any public safety officer who is an individual
employed as described in the Act, at 42 U.S.C. 3796a(5).''). The
reasonability of BJA's interpretation was entirely vindicated on
January 5, 2006, when the President signed into law the DOJ
Reauthorization Act, amending 42 U.S.C. 3796a(5), which (now) forbids
BJA from paying a benefit ``with respect to any individual employed in
a capacity other than a
[[Page 46030]]
civilian capacity.'' Pub. L. 109-162, sec. 1164, 119 Stat. at 3120.
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\2\ It is well established that--``[w]here the literal reading
of a statutory term would `compel an odd result,' we must search for
other evidence of congressional intent to lend the term its proper
scope. * * * [e]ven though, as Judge Learned Hand said, `the words
used, even in their literal sense, are the primary, and ordinarily
the most reliable, source of interpreting the meaning of any
writing'. * * * '' Public Citizen v. Department of Justice, 491 U.S.
440, 454 (1989) (Brennan, J.) (quoting first Green v. Bock Laundry
Machine, 490 U.S. 504, 509 (1989) and second Cabell v. Markham, 148
F.2d 737, 739 (2nd Cir. 1945), aff'd, 326 U.S. 404 (1945)); 491 U.S.
at 469--474 (Kennedy, J., concurring); Hawaii v. Mankichi, 190 U.S.
197, 212 (1903); Church of the Holy Trinity v. United States, 143
U.S. 457, 459 (1892).
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(3) The PSOB Act's definition of ``law enforcement officer'' has
occasioned considerable difficulty. Prior to 1984, a ``law enforcement
officer'' was defined as ``a person involved in crime and juvenile
delinquency control or reduction, or enforcement of the criminal laws.
This includes, but is not limited to, police, corrections, probation,
parole, and judicial officers.'' That ``control or reduction'' applied
to ``crime'' and to ``juvenile delinquency'' was clear enough on the
face of the statute, but there was considerable debate in the field as
to whether ``enforcement of the criminal laws'' included enforcement of
the juvenile delinquency laws, which debate eventually led to an
amendment that struck the word ``criminal'' so as to enable the
``enforcement'' unquestionably to apply also to ``juvenile
delinquency.'' See 42 U.S.C. 3796b(5) as in effect on Jan. 4, 2006
(``an individual involved in crime and juvenile delinquency control or
reduction, or enforcement of the laws, including, but not limited to,
police, corrections, probation, parole, and judicial officers'').
Consistent, however, with the ordinary sense of the term ``law
enforcement officer'' \3\ and applying the traditional interpretive
canon noscitur a sociis \4\ to the statutory definition of the term,
BJA has understood ``law enforcement officer'' not to encompass those
who have no criminal law-enforcement authority or enforce only civil
laws. See, e.g., 70 FR at 43084 (proposed definition of ``enforcement
of the laws,'' to be codified at 28 CFR 32.3 (``Enforcement of the laws
means enforcement of the criminal law.''; the proposed definition of
``Criminal law'' clarifying that juvenile delinquency is covered)).
Notwithstanding the interpretive authority granted to BJA by the Act,
the absence of the word ``criminal'' from the statutory phrase
``enforcement of the laws'' unfortunately provided the predicate for
some, including at least two judges, incorrectly to conclude that the
PSOB Act death benefit may be paid with respect to individuals who had
no criminal law-enforcement authority, but enforced only civil laws.
See Hawkins v. United States, 68 Fed. Cl. 74 (2005), appeal filed, No.
06-5013 (Fed. Cir., Oct. 31, 2005); Cassella v. United States, 68 Fed.
Cl. 189 (2005), appeal filed, No. 06-5035 (Fed. Cir., Dec. 19, 2005).
Confirming the correctness of BJA's understanding of the statute,
however (and directly contrary to these erroneous judicial rulings),
the January 5, 2006, clarifying amendments to the PSOB Act changed 42
U.S.C. 3796a(5) to define ``law enforcement officer'' as ``an
individual involved in crime and juvenile delinquency control or
reduction, or enforcement of the criminal laws (including juvenile
delinquency), including, but not limited to, police, corrections,
probation, parole, and judicial officers.''
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\3\ In several places, the Act uses key terms in their ordinary
sense, with the statutory ``definition'' providing only points of
clarification as to detail. See, e.g., 42 U.S.C. 3796b(2) (2006) (``
`chaplain' includes any individual serving as an officially
recognized or designated member of a legally organized volunteer
fire department . * * * ''). To read this ``definition'' literally
would be tantamount to a suggestion that the provision makes the
fire chief a ``chaplain.'' To avoid this ridiculous and counter-
intuitive suggestion, BJA understands that the legislative intention
is to apply the ordinary meaning of the word, supplemented by the
terms of the statutory ``definition.'' See, e.g., 70 FR at 43084
(proposed definition of ``Chaplain,'' for codification at 28 CFR
32.3) (``Chaplain means a clergyman, or other individual trained in
pastoral counseling, who meets the definition provided in the Act,
at 42 U.S.C. 3796b(2).'').
\4\ See, e.g., Hibbs v. Winn, 542 U.S. 88 (2004); Gutierrez v.
Ada, 528 U.S. 250, 255 (2000) (``Words and people are known by their
companions.'').
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(4) More than once, the text of the PSOB Act has generated
confusion by elaborating upon a specific term in one provision, only to
use a short-hand version of the same term in another. Compare, e.g., 42
U.S.C. 3796(b) (``permanently and totally disabled'') and id. 3796d-
1(a)(1)(B) (``totally and permanently disabling injury'' (emphasis
added)) with id. 3796d(2) (referring only to ``total disability'').
Prior to January 5, 2006, the Act referred in one place to an
``officially recognized or designated * * * public employee member of a
rescue squad or ambulance crew,'' id. 3796b(4) (emphasis added), and in
another place merely to ``a member of a rescue squad or ambulance
crew,'' id. 3796b(8)(A).\5\ Following the traditional rules that the
starting point of statutory interpretation must be the language of the
statute itself and that every word of a statute should be given effect,
if possible, and none rendered superfluous,\6\ in the exercise of the
discretion granted to it by the PSOB Act, BJA resolved the ambiguity
created by these different textual formulations contained in the Act by
interpreting the briefer term as a short-hand expression of the longer
one; i.e., by construing the statute to require that ``rescue squad or
ambulance crew member[s]'' be ``officially recognized or designated * *
* public employee member[s].'' See, e.g., 70 FR 43,086 (proposed
definition of ``Rescue squad or ambulance crew member,'' for
codification at 28 CFR 32.3). Unfortunately, and despite the
considerable interpretive authority granted to BJA by the Act (to say
nothing of the deference owed to BJA under the rule in Chevron U.S.A.
v. Natural Resources Defense Council, 467 U.S. 837 (1984)), at least
one judge has ignored BJA's longstanding construction and erroneously
concluded that the PSOB Act death benefit may be paid with respect to
an individual (emergency medical technician trainee) who was neither
``officially recognized or designated'' nor a ``public employee
member'' of a rescue squad or ambulance crew. Hillensbeck v. United
States, 68 Fed. Cl. 62 (2005); Hillensbeck v. United States, 69 Fed.
Cl. 369 (2006). Notwithstanding this judicial ruling, the reasonability
of BJA's construction of the statute (and the error of the court's
conclusion) was strongly underscored by the January 5, 2006, clarifying
amendments to the PSOB Act, now codified at 42 U.S.C. 3796a(7), which
explicitly endorse BJA's position by adding an express definition of
``member of a rescue squad or ambulance crew'' that requires that they
be ``officially recognized or designated public employee member[s].''
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\5\ For approximately fourteen years the literal text of the
statute required that the public safety officer serve a public
agency ``as a * * * rescue squad or ambulance crew''; this patent
error was remedied in 2000 when the Act was amended to permit an
individual member of a squad or crew to be covered. See supra
footnote 3. It may go without saying that, during those fourteen
years, BJA (relying in significant part on its statutory
interpretive authority and on the canon against absurd results) did
not apply these provisions of the Act literally--as forbidding any
but one-man squads or crews to be eligible for PSOB benefits.
\6\ See, e.g., Lewis v. United States, 445 U.S. 55, 60 (1980);
Crandon v. United States, 494 U.S. 152, 171 (1990) (Scalia, J.,
concurring in the judgment); see generally Consolidated Rail Corp.
v. United States, 896 F.2d 574, 578-79 (D.C. Cir. 1990) (per
Ginsburg, J.) (``For we must never forget that it is a statute we
are expounding, and it is the intention of the drafters, as
expressed in the words they used, that we must heed. * * * `[E]ffect
must be given, if possible, to every word, clause and sentence of a
statute * * * so that no part will be inoperative or superfluous,
void or insignificant.' '' (quoting National Ass'n of Recycling
Indus. v. ICC, 660 F.2d 795, 799 (D.C. Cir. 1981)).
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Given the foregoing history of careful construction of the statute
in the context of repeated statutory amendment and the handling of
thousands of claims, it is not surprising that Representative Lamar
Smith made the following observation on the floor of the House of
Representatives in reference to DOJ Reauthorization Act section 1162
(entitled ``Clarification of Persons Eligible for Benefits under the
Public Safety Officers' Death Benefit Programs''), which made these
most-recent amendments to the PSOB Act:
[[Page 46031]]
The Bureau of Justice Assistance has acquired considerable expertise
in the administration of the Public Safety Officers' Benefits Act
since its enactment in 1976, and courts have properly accorded the
Bureau's interpretations of the Act great deference.
Among other things, H.R. 3402 clarifies statutory provisions
relating to the requirements that ``rescue squad or ambulance crew''
members be public employees, and that ``enforcement of the laws''
refers to the criminal laws, by making the text conform more clearly
to the legislative intention, which has been correctly reflected in
the Bureau's longstanding interpretation of the Act.
These clarifying changes should not be understood to effect any
substantive change in the Act, as interpreted by the Bureau.
163 Cong. Rec. H12,125 (daily ed., Dec. 17, 2005). These remarks--from
a member of the House Judiciary Committee (which reported the bill)--
bear strong witness to the reasonability and soundness of BJA's
construction of the PSOB Act.
II. Recent Amendments to the PSOB Act
As discussed above, the DOJ Reauthorization Act made several
clarifying and other changes to the PSOB Act. The term ``member of a
rescue squad or ambulance crew'' is now defined as ``an officially
recognized or designated public employee member of a rescue squad or
ambulance crew.'' 42 U.S.C. 3796b(7). In the definition of ``law
enforcement officer,'' the term ``enforcement of the laws'' has been
replaced with ``enforcement of the criminal laws (including juvenile
delinquency).'' Id. 3796b(6). As described above, these two clarifying
statutory amendments are consistent with the well-settled understanding
of the underlying terms by BJA since their original enactment into law.
Because of these statutory changes, the rules enunciated in the
holdings of the following cases have been nullified or rendered moot:
Hillensbeck v. United States, 68 Fed. Cl. 62 (2005); Hawkins v. United
States, 68 Fed. Cl. 74 (2005); Cassella v. United States, 68 Fed. Cl.
189 (2005); and Hillensbeck v. United States, 69 Fed. Cl. 369 (2006).
Also as a result of these statutory changes, the final rule now
contains definitions of several terms (e.g., ``officially recognized or
designated public employee member of a squad or crew''), and omits the
proposed definition of ``enforcement of the laws,'' as the meaning
specified in the proposed rule now is clear on the face of the Act
itself. The DOJ Reauthorization Act also amended the PSOB Act to ensure
that the pre-existing statutory limitation on payments to non-civilians
refers to the individual who was injured or killed, and not to any
potential beneficiaries. 42 U.S.C. 3796a(5). For this reason, the final
rule omits the language in the proposed rule that was designed to
achieve this same result. Finally, the DOJ Reauthorization Act amended
certain provisions of the PSOB Act regarding designation of
beneficiaries when the officer dies without a spouse or eligible
children. Id. 3796(a)(4). This amendment removes the need for a one-
year waiting period to ensure payment to the beneficiary of the
officer's ``most recently executed life insurance policy,'' and
accordingly, BJA has amended the definition of this term and added
other terms to conform to the statutory amendments.
III. Hometown Heroes Provisions
The implementation of the Hometown Heroes Act presented a difficult
task because the statutory presumption created by that Act contains a
number of undefined terms. Some commentators approved of the approach
in the proposed rule, but others were dissatisfied with the proposed
provisions, finding them too restrictive or difficult to apply, and
expressing concerns about BJA's implementation of the statutory
presumption. After reviewing the comments, BJA is persuaded that the
provisions in the proposed rule relating to the Hometown Heroes Act
should be amended in order to avoid their being more restrictive than
the statute. In making these amendments, BJA has adopted a much more
conceptual approach than it did in the proposed rule; specifically, BJA
has replaced its prior per-se rule approach involving enumerated risk
factors, with a rule tied to the concept of causation. A discussion of
amendments of particular note follows.
Competent medical evidence to the contrary. One commentator opined
that this term referred to ``medical evidence [that] indicated that
there was an intervening, non-duty-related factor or event which would
have independently caused'' the public safety officer's heart attack or
stroke. BJA essentially agrees with this comment, and had attempted to
capture the basic thrust of this same notion in the definition of this
term in the proposed rule. Accordingly, in the final rule, BJA adopts a
revised definition:
Competent medical evidence to contrary--The presumption raised
by the [Hometown Heroes Act provision] is overcome by competent
medical evidence to the contrary, when evidence indicates to a
degree of medical probability that circumstances other than any
engagement or participation described in the [Hometown Heroes Act
provision], considered in combination (as one circumstance) or
alone, were a substantial factor in bringing the heart attack or
stroke about.
Complementing this definition is the term ``circumstances other
than engagement or participation,'' which, in turn, is defined and does
not include line of duty actions or activity; other definitions have
been added to effect this new conceptual approach.
Nonroutine stressful or strenuous physical activity. The term, as
written in the Hometown Heroes Act, contains an ambiguity, which BJA
resolved in the proposed rule after closely considering the floor
statements of the Congressional sponsors of the bill that became the
Act. Nonetheless, one commentator criticized BJA's proposed definition
of this term (`` `nonroutine stressful physical activity' or `non-
routine strenuous physical activity' ''), opining that the term should
be interpreted to mean, instead, `` `nonroutine stressful activity' or
'strenuous physical activity.' '' The commentator asserted that the
legislative history had made it clear that the term should be so read,
and quoted selectively from the floor statements of both sponsors of
the bill (Rep. James Sensenbrenner and Sen. Patrick Leahy) to that
effect. Despite the commentator's assertion, the selections quoted do
not actually resolve the ambiguity, and, in any event, the commentator
appears to have overlooked the sentences (by the same speakers)
immediately preceding the floor statements quoted, which do apparently
resolve it, by summarily referring to the term ``nonroutine stressful
or strenuous physical activity'' as ``physical activity.'' 149 Cong.
Rec. H12,299 (daily ed., Nov. 21, 2003) (describing the concern of some
Members of Congress had that the bill as originally drafted would
``cover officers who did not engage in any physical activity, but
merely happened to suffer a heart attack while at work'' (emphasis
added)); id. at S16,053 (Nov. 25, 2003) (same). In their (nearly-
identical) floor statements, both Congressional sponsors refer to
``physical activity'' alone--without qualification--as the target
concept in the substitute amendment that inserted the term ``nonroutine
stressful or strenuous physical activity'' into the bill specifically
to allay the concerns of those Members of Congress:
The substitute amendment would create a presumption that an officer
who died as a direct and proximate result of a heart attack or
stroke died as a direct and proximate result of a personal injury
sustained in the line of duty if: (1) That officer participated in a
training exercise that involved nonroutine stressful or strenuous
physical
[[Page 46032]]
activity or responded to a situation and such participation or
response involved nonroutine stressful or strenuous physical law
enforcement, hazardous material response, emergency medical
services, prison security, fire suppression, rescue, disaster relief
or other emergency response activity; (2) that officer suffered a
heart attack or stroke while engaging or within 24 hours of engaging
in that physical activity; and (3) such presumption cannot be
overcome by competent medical evidence.
149 Cong. Rec. at H12,299 to H12,300 (emphasis added); id. at S16,053
(same). Given the foregoing, BJA has made no change to the definition
of this term.
Retroactivity. A few commentators opined that the Hometown Heroes
Act should apply retroactively. Despite BJA's great sympathy for those
who have lost loved ones to duty-related heart attacks or strokes, BJA
has no authority to give retroactive effect to that Act by rule or
regulation. See, e.g., Bice v. United States, 61 Fed. Cl. 420 (2004).
Training exercise. One commentator requested that the criteria for
``training exercise'' be amended to clarify that not all training
exercises include simulations of actual emergencies or provoke a high
level of alarm, fear, or anxiety; the commentator urged BJA to include
training exercises that merely ``include physical training and
exercise.'' BJA believes that the commentator misunderstood the
proposed rule. Under the proposed rule, training exercises that
``[e]ntail an unusually-high level of physical exertion'' (without
reference to simulation of actual emergencies or provocation of high
levels of alarm, fear, or anxiety) also are covered, if the other
criteria in the rule are satisfied. For this reason, BJA has made no
change here.
24-hour window. One commentator expressed concern that it will be
difficult to pinpoint the time when the 24-hour window for engagement
or participation in non-routine stressful or strenuous physical line-
of-duty activity begins, and that the time-frame proposed in the rule
was too restrictive. BJA agrees that the pinpointing the time well may
be difficult in particular cases, but, as this time period is specified
in the statute, it cannot be changed by rule.
IV. Line of Duty Activity or Action and Line of Duty Injury
Generally speaking, the first thing that BJA must ``determine[]''
in any PSOB death or disability claim is ``Was the individual on whom
the claim is based a public safety officer within the meaning of the
PSOB Act and its implementing regulations?'' or, put somewhat
differently, ``Did the individual possess the legal authority to act as
a public safety officer such as to confer that status upon him?'' Under
the Act, 42 U.S.C. 3796(a) & (b), once BJA ``determines'' that the
individual did possess that status, the next thing BJA must
``determine[]'' is whether that officer died (or was permanently and
totally disabled) in the ``line of duty.'' And just as a claim
necessarily must fail if the individual did not possess the legal
status of public safety officer, so it must fail if the death or injury
did not occur in the ``line of duty.'' Given the signal importance of
the ``line of duty'' concept to understanding the PSOB Program, it is
unsurprising that the term generated several comments.
One commentator opined that the bifurcated definitions of ``line of
duty activity or action'' and ``line of duty injury'' in the proposed
rule narrows the meaning of the single term ``line of duty'' in the
current rule, and that the proposed rule appeared to fall short of the
interpretation of ``line of duty'' given in Davis v. United States, 50
Fed. Cl. 192 (2001). BJA believes that the commentator has
misunderstood the reasoning behind the bifurcation of the concept of
``line of duty'' into the two defined terms. Conceptually, the term
``line of duty'' remains unchanged from the current rule to the final
rule.
At present, and under the final rule, the key issue in determining
whether an individual (whom BJA has ``determine[d]'' to be ``a public
safety officer'') acted in the ``line of duty'' is whether he was
performing activities or actions that he was authorized or obligated to
perform as a public safety officer. For a public safety officer whose
primary function is the relevant area of public safety activities
defined by the PSOB Act (e.g., law enforcement, fire protection,
emergency medical response), the definitions of ``line of duty action
or activity'' and ``line of duty injury'' in the rule do not require
that a public safety officer be engaged in any particular line of duty
action in order to be considered as acting in the line of duty: What it
does require, rather, is that the officer be performing an action or
activity that he is ``authorized or obligated to perform by law, rule,
regulation or condition of employment'' as a public safety officer at
the time of his injury, or that it be shown that his injury resulted
from his status as a public safety officer (e.g., where a police
officer (on or off-duty) is killed precisely because of his status as a
police officer). For such ``primary function'' officers, it is presumed
that, while they are ``on the clock,'' all of their authorized
activities and actions are done in their capacity as public safety
officers, and thus are ``line of duty'' actions or activities. In sharp
contrast, for those who are not ``primary function'' officers (i.e.,
those whose primary functions are not public safety activities and
actions covered by the PSOB Act), the rule does require that they
actually be performing a public safety action or activity (e.g., law
enforcement, fire protection, emergency medical response), at the time
of the injury in order for it to be considered in the ``line of duty.''
Logically, it follows that the concept of ``line of duty'' is not
limited only to activities and actions the public safety officer
performs while ``on the clock.'' When an off-duty public safety officer
responds to a situation with an action that he is authorized or
obligated to perform as a public safety officer, he effectively goes
``on duty.'' The definitions of ``line of duty action or activity'' and
``line of duty injury'' articulate this well-settled notion of ``line
of duty'' and are consistent with the current rule and with the rulings
of the courts. This understanding of ``line of duty'' has been
consistently applied by BJA throughout the 30-year life of the PSOB
program. In any event, in order to make it as clear as possible that
line of duty injuries include those that result from the individual's
status as a public safety officer, BJA has included specific language
to that effect in the definition of ``line of duty injury'' in the
final rule.
Authorized commuting. Two commentators questioned whether the new
definition of ``authorized commuting'' was unduly narrow. One
commentator posited that, although the PSOB Act does not cover all
conceivable commuting injuries, neither does it or the term ``line of
duty'' exclude all commuting injuries. BJA agrees, and the definition
of ``authorized commuting'' in the proposed regulation is consistent
with this understanding. The definition is based on the concept of
``line of duty'' under both the current and final rules: When a public
safety officer is engaged in activities or actions that he is obligated
or authorized to perform as a public safety officer, he is acting in
the line of duty, or is, in effect, ``on duty.'' In general, under
workers' compensation law, injuries incurred while commuting to and
from work are not necessarily regarded as occurring within the scope of
employment, except under certain circumstances where it can be shown
that there is a `` `sufficient nexus between the employment and the
injury to conclude that it was a circumstance of employment.' ''
Russell, 637 F.2d at 1265 (quoting Hicks v. General Motors, 238 N.W.2d
194, 196 (Mich. Ct. App. 1975)). Analogously, in the case of a public
safety officer's
[[Page 46033]]
commuting to and from work, a ``sufficient nexus'' between the
circumstances and his duty as a public safety officer must be shown to
establish that he was, in effect, ``on duty,'' and thus engaged in a
``line of duty activity or action.'' The definition of ``authorized
commuting'' sets out three particular circumstances that long have been
recognized by BJA and the courts, where it can be shown that a
``sufficient nexus'' exists between his employment as a public safety
officer and the injury: (1) The officer is responding to a particular
fire, police or rescue emergency; (2) the officer is commuting to or
from work in an agency vehicle; or (3) the officer is commuting to or
from work in a personal vehicle that he is required to use for his
work. One commentator questioned why the mode of transportation was the
focus of this provision and whether ``authorized commuting'' would
cover officers who walked to work or who used public transportation.
The mode of transportation articulated in the exceptions is what gives
rise to the ``nexus'' between employment (i.e., duty) and the
circumstances. Clearly, as discussed in the preceding discussion of the
``line of duty'' definition, whenever a public safety officer responds
to an emergency with authorized action, he is ``on duty.'' A public
safety officer who is using an agency vehicle (or alternatively, using
the vehicle that he is required to use in his work) is presumed
rebuttably to be ``on duty'' while using the vehicle. In the case of
officers who are commuting to or from work with other modes of
transportation, the ordinary line of duty analysis would apply: Where
it can be shown that they were injured while engaging in line of duty
activities or actions, or that they sustained the injury as a result of
their status as public safety officers, they would be considered as
acting in the line of duty.
V. Section-by-Section Analysis
Section 32.2 Computation of Time
One commentator expressed concern about the way in which ``filing''
is effected under this provision, and in particular, opined that the
term ``actually received'' was somewhat vague and could cause an unfair
result for claimants if it were understood to refer strictly to the
intended recipient (rather than his office). In response to this
observation, BJA has amended this provision by specifying that a filing
is deemed filed ``on the day that is actually received at the office''
of the receiving party.
Section 32.3 Definitions
Convincing evidence. One commentator opined that using the same
word within a definition was inappropriate. BJA disagrees. The term
``clear and convincing evidence'' is a legal term of art that
articulates a specific and well-settled legal standard of proof that is
higher than a ``preponderance of the evidence'' standard but lower than
a ``beyond a reasonable doubt'' standard. Black's Law Dictionary 251
(6th ed. 1990) (``That proof which results in reasonable certainty of
the truth of the ultimate fact in controversy.'').
Crime. As two commentators aptly pointed out, although the term
``crime'' implicitly includes juvenile delinquency laws, clarifying
language is needed to remove any ambiguity as to the point. BJA agrees.
Accordingly, the definition of ``crime'' now includes the phrase ``an
act or omission punishable as a criminal misdemeanor or felony.''
Firefighter. A number of firefighter associations questioned
whether this definition, read together with the terms ``fire
suppression,'' ``rescue squad or ambulance crew member,'' and ``line of
duty activity or action,'' would exclude some of the duties and tasks
performed by firefighters. In this vein, one commentator proposed use
of the term ``fire protection'' in order to ensure inclusion of all
such duties and tasks. Similarly, another commentator suggested that
BJA consider the definition of ``firefighter'' contained in the Fair
Labor Standards Act and reevaluate the definitions of ``firefighter''
and ``rescue squad crew member'' as drafted in the proposed rule. BJA
agrees substantially with these helpful comments and has adopted the
term ``fire protection,'' defined to include suppression of fire,
hazardous-material emergency response, and emergency medical service or
rescue activity, and has made conforming changes in defining the terms
``hazardous-material response'' and ``and emergency medical services,''
as well as corresponding changes as necessary in other definitions.
The president of a municipal fire marshals association also
commented on this definition and requested that the term ``fire
marshal'' be included to ensure coverage, pointing out that many fire
marshals perform both law enforcement and firefighting duties, are
certified peace officers, and also engage in hazardous materials
mitigation. In considering this comment, BJA found that, according to
the National Association of State Fire Marshals, fire marshal
responsibilities vary considerably among jurisdictions, and range from
regulatory responsibilities (some of which involve criminal law
enforcement), to actual firefighting and hazardous material emergency
response. Some fire marshals have a more regulatory role, for example,
issuing rules and conducting inspections; others have the authority to
issue criminal citations and enforce fire safety laws and regulations;
while still others may not necessarily have the same authority as
police officers. In light of this wide variation, BJA determined that
the term ``fire marshal'' does not lend itself to a clear definition.
BJA also finds that it is unnecessary to define the term specifically
in order for fire marshals to be covered under the PSOB Act in
appropriate circumstances. A PSOB claim involving a fire marshal will
be analyzed as it always has been by the PSOB program: Where it can be
shown that a fire marshal had the authority to engage in ``fire
protection'' (as defined in the final rule and discussed above) or law
enforcement activities, he would be considered a ``public safety
officer'' under the Act; where it cannot be shown, he would not be. As
with all PSOB claims, once the threshold determination of the
individual's status as a public safety officer is made, the second
inquiry (relating to line of duty) would follow, as to whether his fire
protection or law enforcement duties were primary or secondary duties.
In any event, as a result of the foregoing regulatory changes, the rule
enunciated in the holding of Messick ex rel. Kangas v. United States,
70 Fed. Cl. 319 (2006), appeal filed, No. 06-5087 (Fed. Cir. May 26,
2006) has been nullified or rendered moot.
Gross negligence. One commentator questioned whether the gross
negligence provision would exclude first responders who did not wear
protective clothing while participating in the breakdown of clandestine
drug labs, because their employers either did not provide the clothing,
or did not mandate that it be worn, and as a result, were exposed to
chemicals that lead to terminal illness. The analysis of cases under
the ``gross negligence'' provision necessarily would entail
consideration of many different evidentiary matters, and as such, the
question does not lend itself productively to being answered
hypothetically. As a general matter, it is important to point out that
``occupational diseases'' have always been excluded as injuries under
the PSOB Act. See, e.g., Smykowski v. United States, 647 F.2d 1103,
1105 & n.6 (Ct. Cl. 1981). This is because the PSOB Act requires that
in order to be
[[Page 46034]]
eligible, the claimant must show that the public safety officer died or
was disabled as ``direct and proximate'' or ``direct'' result of an
injury. Evidence of generalized exposure to chemicals, without more, is
not sufficient to show direct causation. The PSOB program has paid
claims, however, where claimants have shown with preponderant evidence
(i.e., evidence showing that it is more likely than not) the required
causal connection between the public safety officer's illness or death
and the exposure to chemicals while on duty.
Intentional action or activity. One commentator expressed concern
that the definitions of ``intention,'' ``intentional action or
activity,'' and ``intentional misconduct,'' which implement 42 U.S.C.
3796a, could result in disqualifying a public safety officer whose
intentional line of duty acts were a substantial factor in causing his
death or catastrophic injury. In response to this concern, BJA has
amended the definition of ``intentional action or activity''
specifically to exclude line of duty actions or activities.
Instrumentality. A private corporate provider of fire and rescue
services expressed concerns about the requirement in the definition of
``instrumentality'' of a public agency that an entity share sovereign
immunity with a public agency, or that the relevant agency have tort
liability for the acts and omissions of the entity. In contrast to
these concerns, another commentator expressed approval of the thrust of
this definition. The PSOB Act dictates that a ``public safety officer''
must be ``an individual serving a public agency in an official
capacity,'' which means that the individual must be cloaked with the
public agency's authority (i.e., must be authorized, recognized or
designated as a functional part of a public agency), and his acts and
omissions must be legally recognized as those of the public agency. It
follows, then, that in order for an entity to be considered an
``instrumentality'' of a public agency, its acts and omissions must be
similarly legally recognized by a public agency by cloaking the
entity's acts and omissions with its sovereign immunity or assuming
tort liability for them. This is consistent with the Act.
Official capacity. One commentator pointed out that it was somewhat
unclear in the definition of ``official capacity'' who was supposed to
authorize, recognize, or designate the individual as functionally
within or part of an agency. In response, BJA has included language to
indicate that these actions are to be taken by the public agency
itself. The definition of this term incorporates a concept that has
been consistently applied by BJA throughout the 30-year life of the
PSOB program, and was expressly upheld by the Federal Circuit in Chacon
v. United States, 48 F.3d 508, 512-513 (Fed. Cir. 1995). The proposed
rule was (and the final rule is) expressly intended to codify this
holding in Chacon. Related to this definition are the definitions of
``department or agency,'' ``employee,'' ``functionally within or part
of,'' ``instrumentality,'' and ``official duties,'' which are consonant
with the rule enunciated in the holding of LaBare v. United States, --
---- Fed. Cl. ------ (2006), and which, all told (and in combination
with other changes made here), nullify or render moot the rule
enunciated in the holding of Groff v. United States, ------ Fed. Cl. --
---- (2006).
Parent-child relationship. In reviewing the proposed rule, BJA
observed that this term as written was more restrictive than the
statute in that it could appear that the relationship could be
demonstrated only by the evidence prescribed in the definition. To
avoid this result, BJA has greatly simplified the rule by providing
only that the relationship be shown through convincing evidence,
without specifying the particular evidence required. As a result of
this change, BJA will consider any proper evidence, which may consist
of such things as a written acknowledgment of parenthood; a judicial
decree ordering child support; a public or religious record naming the
public safety officer as parent (with the officer's consent);
affidavits (from persons without direct or indirect financial interest
in a PSOB claim) attesting that the child was accepted by the officer
as his child; records of a public agency or a school (with the
officer's consent); the claiming of the child as a dependent on the
officer's tax return; or other credible evidence indicating acceptance
of the individual as a child by the public safety officer. An analogous
change was made in the definition of ``child-parent relationship.''
Rescue activity and rescue squad or ambulance crew. In response to
the point made by one commentator that the proposed regulation, unlike
the current regulation, did not contain a definition of ``rescue,'' BJA
has included within the final rule (``rescue activity'') the substance
of that definition in the current rule, and made the corresponding
changes to the definition of ``rescue squad or ambulance crew.''
Terrorist attack. There were several comments relating to the
definition of ``terrorist attack.'' First, the comments expressed
concern about the requirement that the BJA Director make a
determination that a terrorist attack was one of an ``extraordinary or
cataclysmic character so as to make particularized factual finding
impossible, impractical, or unduly burdensome,'' and opined that the
Director's determination could ``trump'' the determination by the
Attorney General that such an event was a terrorist act. Simply put,
the comments appear to spring from the mistaken belief that the term
``terrorist attack'' is synonymous with ``terrorist act.''
Additionally, the comments expressed concern about coverage of public
safety officers who prevent or investigate aspects of terrorism and
suggest that the regulations be expanded to ensure such coverage. There
is no applicable statutory definition of the term ``terrorist attack,''
which was enacted into law here as section 611 of the USA PATRIOT Act
(not an amendment to the PSOB Act, but codified at 42 U.S.C. 3796c-1).
But on its face, the term fairly may be understood to mean an ``act of
terrorism'' (which is a term defined in the USA PATRIOT Act) that is in
the nature of an ``attack.'' For this reason, the proposed rule is
written in terms of an event that is ``extraordinary'' or
``cataclysmic''--in short, an event that approximates those that gave
rise to the enactment of section 611. The notion informing the
certification process described at section 611 is avoidance of
potentially enormous administrative burdens for claimants that could
lead to unnecessary delays of benefit payments; the provision, in
principle, is not intended to add another dimension of coverage for
public safety officers. Nonetheless, BJA agrees with the commentator
that determination of what constitutes a ``terrorist attack'' should be
left to the Attorney General and those to whom he may delegate his
authority. For this reason, BJA has amended the definition of
``terrorist attack,'' omitting the language requiring the BJA
Director's determination. With regard to coverage of prevention and
investigation of terrorist acts, section 611 itself requires such
coverage, and nothing in the proposed rule was intended to prevent it
(or lawfully could have done so). Insofar as a public safety officer
acts in the line of duty, whether preventing, responding to, or
investigating a terrorist attack, he would be covered under section
611. Nonetheless, in order that there be no question on the point, BJA
has added clarifying language to this effect in the final rule.
Voluntary intoxication. One commentator questioned whether the
[[Page 46035]]
regime set out in the definition of ``voluntary intoxication'' might
preclude valid claims involving alcohol consumption. The PSOB Act
clearly sets out the legal limits with respect to alcohol and the rule
cannot reach beyond what is required by statute. Nonetheless, further
to this commentator's question, BJA has made some clarifying changes,
relating to intoxication, in the final rule.
Section 32.5 Evidence
One commentator expressed concerns about the evidence provisions.
First, the commentator objected to the use of the term ``preponderance
of the evidence'' proposed in sec. 32.5(a), arguing that the
evidentiary standard of ``preponderance of the evidence'' required for
claimants to make successful claims places a greater burden of proof on
them than in the current rule. In the commentator's view, BJA is
replacing the ``reasonable doubt'' provision in the current regulations
with a ``new and higher evidentiary standard.'' The commentator clearly
misunderstands this provision in the current rule, as well as the
application of the ``preponderance of the evidence'' standard with
regard to PSOB claims. First, the current ``reasonable doubt''
provision does not apply to the claimant's burden of proof; i.e., it
does not require the claimant to provide evidence rising to the level
of ``reasonable doubt.'' The provision in the current rule, rather, is
merely an evidentiary mechanism that assists the decision-maker in
weighing factual evidence arising from the circumstances of a public
safety officer's death or total and permanent disability.
Unfortunately, this provision has generated no end of misunderstanding,
confusion, and misapplication among claimants, and as well as
disagreement in the courts. See, e.g., Tafoya v. United States, 8 Cl.
Ct. 256 (1985); Demutiis v. United States, 49 Fed. Cl. 81 (2000), aff'd
in part, 291 F.3d 1373 (Fed. Cir. 2002); Bice v. United States, 61 Fed.
Cl. 420 (2004). For this reason, BJA proposed the removal of this
provision and the articulation of the standard of proof as preponderant
evidence (also known as ``more likely than not,'' cf. Black's Law
Dictionary 1182 (6th ed. 1990)). This commonly applied standard is the
same standard BJA has used as a default matter in its application of
the evidentiary provisions in the current rule. Nonetheless, the
commentator's comment has persuaded BJA that the term ``preponderance
of the evidence'' may be daunting to some members of the public, so it
has rephrased the standard as ``more likely than not'' in the final
rule. Second, the commentator objects to the language of Sec. 32.5(e),
which provides that certifications under 42 U.S.C. 3796c-1 ``shall
constitute prima facie evidence * * * of the public agency's
acknowledgment that public safety officer, as of the event date was * *
* serving the agency in an official capacity,'' alleging that this
could exclude public safety officers who heroically respond to events
outside of their jurisdiction, or without express authorization of
their agency. The proposed rule requires nothing more than what is
required by 42 U.S.C. 3796c-1, which dictates what must be certified,
and BJA has no authority to change those requirements.
Section 32.7 Fees for Representative Services
One commentator made the excellent suggestion that the rate of
payment for representative services in PSOB claims should be linked to
the Equal Access to Justice Act (``EAJA''). BJA has consistently used
the EAJA as its guide in determining attorneys fees, and agrees that
specifying this in the rule itself will better inform claimants and
their representatives with regard to these payments.
Section 32.12 Time for Filing a Claim
One commentator asked how the thirty-three (33) day time frame
proposed for certain filings (but not for the initial filing of claims
themselves) was arrived upon by BJA. BJA started from the premise of a
standard thirty-day period and then added three more days (the time
period customarily given to parties in civil litigation, under the so-
called ``Mailbox Rule.'') See, e.g., Fed. R. Civ. P. 6(e).
Section 32.13 Definitions
Beneficiary of a life insurance policy of a public safety officer.
One commentator remarked about the moral difficulty occasioned by cases
where it is determined that only one of the officer's parents is the
``the individual designated by such officer as beneficiary under such
officer's most recently executed life insurance policy,'' see 42 U.S.C.
3796(a)(4), and only that parent receives payment because of that
designation. The commentator requested that BJA consider a way to allow
each parent to receive 50% of the benefit in these cases. The PSOB Act
itself dictates that designated beneficiaries are to receive benefits
according to the terms of the designation, and dictates that those
beneficiaries are to receive priority over parents; this statutorily
compelled result cannot be changed by rule. Additionally, the
commentator requested that the one-year waiting period currently
required of claimants who are life-insurance beneficiaries be omitted.
Prior to the enactment of the DOJ Reauthorization Act, it was not
immediately possible to determine the universe of insurance policies in
a claim, and, in order to avoid the risk of erroneous and/or double
payment, BJA required a one-year period to pass in order to ensure that
no other life insurance policy existed that was more ``recently
executed.'' The DOJ Reauthorization Act amended 42 U.S.C. 3796(a)(4) to
require that the qualifying life insurance policy be ``on file at the
time of death with [the officer's] public safety agency,'' thereby
obviating the need for a one-year waiting period. Accordingly, BJA has
made appropriate conforming changes that are contained in the final
rule.
Section 32.15 Prerequisite Certification
One commentator questions the reasoning behind this requirement, as
status as a public safety officer and line of duty determinations by
the decedent's employing agency are legal determinations. The
commentator appears to misunderstand the provision, which is aimed at
establishing various things as factual, not legal, matters; i.e., to
establish how the employing agency regarded the public safety officer
at the time of fatal injury. Certain facts, key to entitlement to
benefits under the statute, are particularly within the ken of the
employing public agencies, and benefits are not payable under the PSOB
Act when the employing public agency itself has refused to pay
analogous benefits on the ground that the individual was not a public
safety officer, or was not serving the public agency in an official
capacity at the time of the fatal injury, or was not injured in the
line of duty, as the case may be. For this reason, BJA has not adopted
any change here (or in sec. 32.25, an analogous provision) in response
to this comment.
Section 32.28 Reconsideration
One commentator opined that the three-year period for the staying
of a reconsideration of a disability claim was an insufficient amount
of time for the effects of a catastrophic injury to fully develop. The
commentator has misunderstood the regulation. The time-frame is
actually nine years because, upon conclusion of the stay, the claimant
has six additional years to file evidence with the PSOB Office in
support of his claimed disability. In the final rule, BJA has amended
this provision to clarify this point.
[[Page 46036]]
Section 32.33 Definitions
After further review of the definitions proposed in this section,
BJA has concluded that several changes are warranted--first, to clarify
analytical distinctions that are commonly applied in the program but
were not apparent (or not easily apparent) on the face of the proposed
rule (e.g., there are two different kinds of education benefit
``claims'': ``threshold claims'' and ``financial claims''; definitions
of ``eligible dependent,'' ``grading period''), thus making the final
rule easier for claimants to use; and second, to correct proposed
language that would or might have had the unintentional effect of
making the rule more restrictive or limiting than the statute (e.g.,
the definitions of ``child of eligible public safety officer,''
``dependent,'' ``educational expenses,'' ``eligible dependent,''
``spouse of an eligible public safety officer at the time of death or
on the date of a totally and permanently disabling injury,'' ``tax
year'').
Section 32.36 Payment and Repayment
Additional internal review of the proposed rule leads BJA to change
the proposed provisions relating to financial need so as to clarify
their operation in much greater detail and thus to ensure their
conformity to the ``sliding scale'' requirements of the statute.
Additionally, a provision in this section is being changed to clarify
that the circumstances under which repayment to the United States may
be warranted are more limited than was apparent on the face of the
proposed rule.
Section 32.45 Hearings
In response to one commentator's recommendation that witnesses be
sworn and sequestered, BJA has amended the final rule here and in
section 32.5(c) to adopt certain provisions of the Federal Rules of
Evidence (over and above those already prescribed in the proposed rule)
and to include an express provision requiring the hearing officer to
exclude witnesses from hearings while others are giving testimony
(except for the claimant or any person whose presence is shown by the
claimant to be essential to presentation of his claim). Another
commentator questioned whether this section permits a record review of
a claim (i.e., a review without a hearing). BJA responds that (in the
event a claimant does not request a hearing) a record review,
supplemented with any evidence the hearing officer may require, is
precisely the means by which a hearing officer ordinarily would
determine a claim. In furtherance of this point, BJA has made
amendments, contained in the final rule, that make express the
determining official's authority to require evidence.
II. Regulatory Certifications
Regulatory Flexibility Act
The Office of Justice Programs, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by
approving it certifies that this regulation will not have a significant
economic impact on a substantial number of small entities for the
following reasons: This final rule addresses Federal agency procedures;
furthermore, this final rule makes amendments to clarify existing
regulations and agency practice concerning death, disability, and
education payments and assistance to eligible public safety officers
and their survivors and does nothing to increase the financial burden
on any small entities.
Executive Order 12866
This final rule has been drafted and reviewed in accordance with
Executive Order No. 12866 (Regulatory Planning and Review), sec. 1(b),
Principles of Regulation. The costs of implementing this final rule are
minimal. Claimants must complete and submit no more than four forms; a
``Claim for Death Benefits,'' OMB Form No. 1121-0024; a ``Report of
Public Safety Officers' Death,'' OMB Form No. 1121-0025; a ``Report of
Public Safety Officers' Permanent and Total Disability,'' OMB Form No.
1121-0166; an ``Application for Public Safety Officers' Educational
Assistance (42 U.S.C. 3796d),'' OMB Form No. 1121-0220; and a ``Consent
to Release Information'' pursuant to 5 U.S.C. 552a(b); and supply
adequate documentation concerning the public safety officer's injury.
The only costs to OJP consist of appropriated funds. The benefits of
the final rule far exceed the costs. The amendments clarify the
preexisting regulations and provide coverage for chaplains, life
insurance and death beneficiaries, and the survivors of certain heart
attack and stroke victims.
The Office of Justice Programs has determined that this final rule
is a ``significant regulatory action'' under Executive Order No. 12866
(Regulatory Planning and Review), sec. 3(f), and accordingly this final
rule has been reviewed by the Office of Management and Budget.
Executive Order 13132
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. The PSOB Act provides benefits to
individuals and does not impose any special or unique requirements on
States or localities. Therefore, in accordance with Executive Order No.
13132, it is determined that this final rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This final rule meets the applicable standards set forth in
sections 3(a) & (b)(2) of Executive Order No. 12988.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State, local
and tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. The PSOB Act is a federal benefits
program that provides benefits directly to qualifying individuals.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
final rule will not result in an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Paperwork Reduction Act
The collection of information requirements contained in this final
rule have been submitted to and approved by OMB, in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). Claimants
seeking benefits under the PSOB Act variously must complete and return
up to three of four OMB-approved forms: a ``Claim for Death Benefits,''
OMB Form No. 1121-0024; a ``Report of Public Safety Officers' Death,''
OMB Form No. 1121-0025; a ``Report of Public Safety
[[Page 46037]]
Officers' Permanent and Total Disability,'' OMB Form No. 1121-0166; and
an ``Application for Public Safety Officers' Educational Assistance (42
U.S.C. 3796d),'' OMB Form No. 1121-0220.
List of Subjects in 28 CFR Part 32
Administrative practice and procedure, Claims, Disability benefits,
Education, Emergency medical services, Firefighters, Law enforcement
officers, Reporting and recordkeeping requirements, Rescue squad.
0
Accordingly, for the reasons set forth in the preamble, part 32 of
chapter I of Title 28 of the Code of Federal Regulations is revised to
read as follows:
PART 32--PUBLIC SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL
ASSISTANCE BENEFIT CLAIMS
Sec.
32.0 Scope of part.
Subpart A--General Provisions
32.1 Scope of subpart.
32.2 Computation of time; filing.
32.3 Definitions.
32.4 Terms; construction, severability.
32.5 Evidence.
32.6 Payment and repayment.
32.7 Fees for representative services.
32.8 Exhaustion of administrative remedies.
Subpart B--Death Benefit Claims
32.11 Scope of subpart.
32.12 Time for filing claim.
32.13 Definitions.
32.14 PSOB Office determination.
32.15 Prerequisite certification.
32.16 Payment.
32.17 Request for Hearing Officer determination.
Subpart C--Disability Benefit Claims
32.21 Scope of subpart.
32.22 Time for filing claim.
32.23 Definitions.
32.24 PSOB Office determination.
32.25 Prerequisite certification.
32.26 Payment.
32.27 Motion for reconsideration of negative disability finding.
32.28 Reconsideration of negative disability finding.
32.29 Request for Hearing Officer determination.
Subpart D--Educational Assistance Benefit Claims
32.31 Scope of subpart.
32.32 Time for filing claim.
32.33 Definitions.
32.34 PSOB Office determination.
32.35 Disqualification.
32.36 Payment and repayment.
32.37 Request for Hearing Officer determination.
Subpart E--Hearing Officer Determinations
32.41 Scope of subpart.
32.42 Time for filing request for determination.
32.43 Appointment and assignment of Hearing Officers.
32.44 Hearing Officer determination.
32.45 Hearings.
32.46 Director appeal.
Subpart F--Director Appeals & Reviews
32.51 Scope of subpart.
32.52 Time for filing Director appeal.
32.53 Review.
32.54 Director determination.
32.55 Judicial appeal.
Authority: Public Safety Officers' Benefits Act of 1976 (42
U.S.C. ch. 46, subch. 12); Public Law 107-37; USA PATRIOT Act, sec.
611 (42 U.S.C. 3796c-1).
Sec. 32.0 Scope of part.
This part implements the Act.
Subpart A--General Provisions
Sec. 32.1 Scope of subpart.
This subpart contains provisions generally applicable to this part.
Sec. 32.2 Computation of time; filing.
(a) In computing any period of time prescribed or allowed, the day
of the act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or a
federal legal holiday, or, when the act to be done is a filing with the
PSOB Office, a day on which weather or other conditions have caused
that Office to be closed or inaccessible, in which event the period
runs until the end of the next day that is not one of the
aforedescribed days.
(b) A filing is deemed filed with the PSOB Office, a Hearing
Officer, the Director, or any other OJP office, -officer, -employee, or
-agent, only on the day that it actually is received at the office of
the same. When a filing is prescribed to be filed with more than one of
the foregoing, it shall be deemed filed as of the day the last such one
so receives it.
(c) Notice is served by the PSOB Office upon an individual on the
day that it is--
(1) Mailed, by U.S. mail, addressed to the individual (or to his
representative) at his (or his representative's) last address known to
such Office;
(2) Delivered to a courier or other delivery service, addressed to
the individual (or to his representative) at his (or his
representative's) last address known to such Office; or
(3) Sent by electronic means such as telefacsimile or electronic
mail, addressed to the individual (or to his representative) at his (or
his representative's) last telefacsimile number or electronic-mail
address, or other electronic address, known to such Office.
(d) In the event of withdrawal or abandonment of a filing, the time
periods prescribed for the filing thereof shall not be tolled, unless,
for good cause shown, the Director grants a waiver.
(e) No claim may be filed (or approved) under the Act, at 42 U.S.C.
3796(a) or (b), with respect to an injury, if a claim under the Act, at
42 U.S.C. 3796c-1 or Public Law 107-37, has been approved, with respect
to the same injury.
(f) No claim may be filed (or approved) under the Act, at 42 U.S.C.
3796c-1 or Public Law 107-37, with respect to an injury, if a claim
under the Act, at 42 U.S.C. 3796(a) or (b), has been approved, with
respect to the same injury.
Sec. 32.3 Definitions.
Act means the Public Safety Officers' Benefits Act of 1976
(generally codified at 42 U.S.C. 3796, et seq.; part L of title I of
the Omnibus Crime Control and Safe Streets Act of 1968) (including
(uncodified) section 5 thereof (rule of construction and
severability)), as applicable according to its effective date and those
of its various amendments (e.g., Sept. 29, 1976 (deaths of State and
local law enforcement officers and firefighters); Jan. 1, 1978
(educational assistance); Oct. 1, 1984 (deaths of federal law
enforcement officers and firefighters); Oct. 18, 1986 (deaths of rescue
squad and ambulance crew members); Nov. 29, 1990 (disabilities); Oct.
30, 2000 (disaster relief workers); Sept. 11, 2001 (chaplains and
insurance beneficiaries); Dec. 15, 2003 (certain heart attacks and
strokes); and Apr. 5, 2006 (designated beneficiaries)); and also
includes Public Law 107-37 and sections 611 and 612 of the USA PATRIOT
Act (all three of which relate to payment of benefits, described under
subpart 1 of such part L, in connection with terrorist attacks).
Adopted child--An individual is an adopted child of a public safety
officer only if--
(1) The individual is legally adopted by the officer; or
(2) As of the injury date, and not being a stepchild, the
individual was--
(i) Known by the officer not to be his biological first-generation
offspring; and
(ii) After the officer obtained such knowledge, in a parent-child
relationship with him.
Authorized commuting means travel by a public safety officer--
[[Page 46038]]
(1) In the course of actually responding to a fire, rescue, or
police emergency; or
(2) Between home and work (at a situs authorized or required by the
public agency he serves)--
(i) Using a vehicle provided by such agency, pursuant to a
requirement or authorization by such agency that he use the same for
commuting; or
(ii) Using a vehicle not provided by such agency, pursuant to a
requirement by such agency that he use the same for work.
BJA means the Bureau of Justice Assistance, OJP.
Cause--A death, injury, or disability is caused by intentional
misconduct if--
(1) The misconduct is a substantial factor in bringing it about;
and
(2) It is a reasonably foreseeable result of the misconduct.
Chaplain means a clergyman, or other individual trained in pastoral
counseling, who meets the definition provided in the Act, at 42 U.S.C.
3796b(2).
Child of a public safety officer means an individual--
(1) Who--
(i) Meets the definition provided in the Act, at 42 U.S.C.
3796b(3), in any claim--
(A) Arising from the public safety officer's death, in which the
death was simultaneous (or practically simultaneous) with the injury;
or
(B) Filed after the public safety officer's death, in which the
claimant is the officer's--
(1) Biological child, born after the injury date;
(2) Adopted child, adopted by him after the injury date; or
(3) Stepchild, pursuant to a marriage entered into by him after the
injury date; or
(ii) In any claim not described in paragraph (1)(i) of this
definition--
(A) Meets (as of the injury date) the definition provided in the
Act, at 42 U.S.C. 3796b(3), mutatis mutandis (i.e., with ``deceased''
and ``death'' being substituted, respectively, by ``deceased or
disabled'' and ``injury''); or
(B) Having been born after the injury date, is described in
paragraph (1)(i)(B)(1), (2), or (3) of this definition; and
(2) With respect to whom the public safety officer's parental
rights have not been terminated, as of the injury date.
Convincing evidence means clear and convincing evidence.
Crime means an act or omission punishable as a criminal misdemeanor
or felony.
Criminal laws means that body of law that declares what acts or
omissions are crimes and prescribes the punishment that may be imposed
for the same.
Department or agency--An entity is a department or agency within
the meaning of the Act, at 42 U.S.C. 3796b(8), and this part, only if
the entity is--
(1) A court;
(2) An agency described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C); or
(3) Otherwise a public entity--
(i) That is legally an express part of the internal organizational
structure of the relevant government;
(ii) That has no legal existence independent of such government;
and
(iii) Whose obligations, acts, omissions, officers, and employees
are legally those of such government.
Determination means the approval or denial of a claim (including an
affirmance or reversal pursuant to a motion for reconsideration under
Sec. 32.27), or the determination described in the Act, at 42 U.S.C.
3796(c).
Director means the Director of BJA.
Direct and proximate result of an injury--Except as may be provided
in the Act, at 42 U.S.C. 3796(k), a death or disability results
directly and proximately from an injury if the injury is a substantial
factor in bringing it about.
Disaster relief activity means activity or an action encompassed
within the duties described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C).
Disaster relief worker means any individual who meets the
definition provided in the Act, at 42 U.S.C. 3796b(9)(B) or (C).
Disturbance includes any significant and negative alteration, any
significant negative deviation from the objectively normal, or any
significant deterioration.
Divorce means a legally-valid divorce from the bond of wedlock
(i.e., the bond of marriage), except that, notwithstanding any other
provision of law, a spouse (or purported spouse) of a living individual
shall be considered to be divorced from that individual within the
meaning of this definition if, subsequent to his marriage (or purported
marriage) to that individual, the spouse (or purported spouse)--
(1) Holds himself out as being divorced from, or not being married
to, the individual;
(2) Holds himself out as being married to another individual; or
(3) Was a party to a ceremony purported by the parties thereto to
be a marriage between the spouse (or purported spouse) and another
individual.
Drugs or other substances means controlled substances within the
meaning of the drug control and enforcement laws, at 21 U.S.C. 802(6).
Educational/academic institution means an institution whose primary
purpose is educational or academic learning.
Eligible payee means--
(1) A beneficiary described in the Act, at 42 U.S.C. 3796(a), with
respect to a claim under subpart B of this part; or
(2) A beneficiary described in the Act, at 42 U.S.C. 3796(b), with
respect to a claim under subpart C of this part.
Emergency medical services means--
(1) Provision of first-response emergency medical care (other than
in a permanent medical-care facility); or
(2) Transportation of persons in medical distress (or under
emergency conditions) to medical-care facilities.
Employed by a public agency--A public safety officer is employed,
within the meaning of the Act, at 42 U.S.C. 3796c-1 or Public Law 107-
37, by a public agency, when he--
(1) Is employed by the agency in a civilian capacity; and
(2) Is--
(i) Serving the agency in an official capacity (with respect to
officers of any kind but disaster relief workers); or
(ii) Performing official duties as described in the Act, at 42
U.S.C. 3796b(9)(B) or (C) (with respect to disaster relief workers).
Employee does not include--
(1) Any independent contractor; or
(2) Any individual who is not eligible to receive death or
disability benefits from the purported employer on the same basis as a
regular employee of such employer would.
Filing means any claim, request, motion, election, petition, or
appeal, and any item or matter (e.g., evidence, certifications,
authorizations, waivers, legal arguments, or lists) that is, or may be,
filed with the PSOB Office.
Fire protection means--
(1) Suppression of fire;
(2) Hazardous-materials emergency response; or
(3) Emergency medical services or rescue activity of the kind
performed by firefighters.
Fire, rescue, or police emergency includes disaster-relief
emergency.
Firefighter means an individual who--
(1) Is trained in--
(i) Suppression of fire; or
(ii) Hazardous-materials emergency response; and
(2) Has the legal authority and -responsibility to engage in the
suppression of fire, as--
(i) An employee of the public agency he serves, which legally
recognizes him to have such (or, at a minimum, does not deny (or has
not denied) him to have such); or
[[Page 46039]]
(ii) An individual otherwise included within the definition
provided in the Act, at 42 U.S.C. 3796b(4).
Functionally within or -part of--No individual shall be understood
to be functionally within or -part of a public agency solely by virtue
of an independent contractor relationship.
Gross negligence means great, heedless, wanton, indifferent, or
reckless departure from ordinary care, prudence, diligence, or safe
practice--
(1) In the presence of serious risks that are known or obvious;
(2) Under circumstances where it is highly likely that serious harm
will follow; or
(3) In situations where a high degree of danger is apparent.
Hazardous-materials emergency response means emergency response to
the threatened or actual release of hazardous materials, where life,
property, or the environment is at significant risk.
Heart attack means myocardial infarction or sudden cardiac arrest.
Illegitimate child--An individual is an illegitimate child of a
public safety officer only if he is a natural child of the officer, and
the officer is not married to the other biological parent at (or at any
time after) the time of his conception.
Incapable of self-support because of physical or mental
disability--An individual is incapable of self-support because of
physical or mental disability if he is under a disability within the
meaning of the Social Security Act, at 42 U.S.C. 423(d)(1)(A),
applicable mutatis mutandis.
Independent contractor includes any volunteer, servant, employee,
contractor, or agent, of an independent contractor.
Injury means a traumatic physical wound (or a traumatized physical
condition of the body) caused by external force (such as bullets,
explosives, sharp instruments, blunt objects, or physical blows),
chemicals, electricity, climatic conditions, infectious disease,
radiation, virii, or bacteria, but does not include any occupational
disease, or any condition of the body caused or occasioned by stress or
strain.
Injury date means the time of the line of duty injury that--
(1) Directly and proximately results in the public safety officer's
death, with respect to a claim under--
(i) Subpart B of this part; or
(ii) Subpart D of this part, by virtue of his death; or
(2) Directly (or directly and proximately) results in the public
safety officer's total and permanent disability, with respect to a
claim under--
(i) Subpart C of this part; or
(ii) Subpart D of this part, by virtue of his disability.
Instrumentality means entity, and does not include any individual,
except that no entity shall be considered an instrumentality within the
meaning of the Act, at 42 U.S.C. 3796b(8), or this part, unless, as of
the injury date,
(1) The entity--
(i) Is legally established, -recognized, or -organized, such that
it has legal existence; and
(ii) Is so organized and controlled, and its affairs so conducted,
that it operates and acts solely and exclusively as a functional part
of the relevant government, which legally recognizes it as such (or, at
a minimum, does not deny (or has not denied) it to be such); and
(2) The entity's--
(i) Functions and duties are solely and exclusively of a public
character;
(ii) Services are provided generally to the public as such
government would provide if acting directly through its public
employees (i.e., they are provided without regard to any particular
relationship (such as a subscription) a member of the public may have
with such entity); and
(iii) Acts and omissions are, and are recognized by such government
as (or, at a minimum, not denied by such government to be), legally--
(A) Those of such government, for purposes of sovereign immunity;
or
(B) The responsibility of such government, for purposes of tort
liability.
Intention--A death, injury, or disability is brought about by a
public safety officer's intention if--
(1) An intentional action or activity of his is a substantial
factor in bringing it about; and
(2) It is a reasonably foreseeable result of the intentional action
or activity.
Intentional action or activity means activity or action (other than
line of duty activity or action), including behavior, that is--
(1) A result of conscious volition, or otherwise voluntary;
(2) Not a result of legal insanity or of impulse that is legally
and objectively uncontrollable; and
(3) Not performed under legal duress or legal coercion of the will.
Intentional misconduct--Except with respect to voluntary
intoxication at the time of death or catastrophic injury, a public
safety officer's action or activity is intentional misconduct if--
(1) As of the date it is performed,
(i) Such action or activity--
(A) Is in violation of, or otherwise prohibited by, any statute,
rule, regulation, condition of employment or service, official mutual-
aid agreement, or other law; or
(B) Is contrary to the ordinary, usual, or customary practice of
similarly-situated officers within the public agency in which he
serves; and
(ii) He knows, or reasonably should know, that it is so in
violation, prohibited, or contrary; and
(2) Such action or activity--
(i) Is intentional; and
(ii) Is--
(A) Performed without reasonable excuse; and
(B) Objectively unjustified.
Involvement--An individual is involved in crime and juvenile
delinquency control or reduction, or enforcement of the criminal laws
(including juvenile delinquency), only if he is an officer of a public
agency and, in that capacity, has legal authority and -responsibility
to arrest, apprehend, prosecute, adjudicate, correct or detain (in a
prison or other detention or confinement facility), or supervise (as a
parole or probation officer), persons who are alleged or found to have
violated the criminal laws, and is recognized by such agency, or the
relevant government (or, at a minimum, not denied by such agency, or
the relevant government), to have such authority and responsibility.
Itemized description of representative services provided--A
description of representative services provided is itemized only when
it includes--
(1) The beginning and end dates of the provision of the services;
(2) An itemization of the services provided and the amount of time
spent in providing them; and
(3) An itemization of the expenses incurred in connection with the
services provided for which reimbursement is sought.
Kinds of public safety officers--The following are the different
kinds of public safety officers:
(1) Law enforcement officers;
(2) Firefighters;
(3) Chaplains;
(4) Members of rescue squads or ambulance crews; and
(5) Disaster relief workers.
Law enforcement means enforcement of the criminal laws, including--
(1) Control or reduction of crime or of juvenile delinquency;
(2) Prosecution or adjudication of individuals who are alleged or
found to have violated such laws;
(3) Corrections or detention (in a prison or other detention or
confinement facility) of individuals who are alleged or found to have
violated such laws; and
[[Page 46040]]
(4) Supervision of individuals on parole or probation for having
violated such laws.
Line of duty activity or action--Activity or an action is performed
in the line of duty, in the case of a public safety officer who is--
(1) A law enforcement officer, a firefighter, or a member of a
rescue squad or ambulance crew--
(i) Whose primary function (as applicable) is law enforcement, fire
protection, rescue activity, or the provision of emergency medical
services, only if, not being described in the Act, at 42 U.S.C.
3796a(1), and not being a frolic or detour, it is activity or an action
that he is obligated or authorized by statute, rule, regulation,
condition of employment or service, official mutual-aid agreement, or
other law, to perform (including any social, ceremonial, or athletic
functions (or any training programs) to which he is assigned, or for
which he is compensated), under the auspices of the public agency he
serves, and such agency (or the relevant government) legally recognizes
that activity or action to be so obligated or authorized (or, at a
minimum, does not deny (or has not denied) it to be such); or
(ii) Whose primary function is not law enforcement, fire
protection, rescue activity, or the provision of emergency medical
services, only if, not being described in the Act, at 42 U.S.C.
3796a(1), and not being a frolic or detour--
(A) It is activity or an action that he is obligated or authorized
by statute, rule, regulation, condition of employment or service,
official mutual-aid agreement, or other law, to perform, under the
auspices of the public agency he serves, and such agency (or the
relevant government) legally recognizes that activity or action to be
so obligated or authorized (or, at a minimum, does not deny (or has not
denied) it to be such); and
(B) It is performed (as applicable) in the course of law
enforcement, providing fire protection, engaging in rescue activity,
providing emergency medical services, or training for one of the
foregoing, and such agency (or the relevant government) legally
recognizes it as such (or, at a minimum, does not deny (or has not
denied) it to be such);
(2) A disaster relief worker, only if, not being described in the
Act, at 42 U.S.C. 3796a(1), and not being a frolic or detour, it is
disaster relief activity, and the agency he serves (or the relevant
government), being described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C), legally recognizes it as such (or, at a minimum, does not deny (or
has not denied) it to be such); or
(3) A chaplain, only if, not being described in the Act, at 42
U.S.C. 3796a(1), and not being a frolic or detour--
(i) It is activity or an action that he is obligated or authorized
by statute, rule, regulation, condition of employment or service,
official mutual-aid agreement, or other law, to perform, under the
auspices of the public agency he serves, and such agency (or the
relevant government) legally recognizes it as such (or, at a minimum,
does not deny (or has not denied) it to be such); and
(ii) It is performed in the course of responding to a fire, rescue,
or police emergency, and such agency (or the relevant government)
legally recognizes it as such (or, at a minimum, does not deny (or has
not denied) it to be such).
Line of duty injury--An injury is sustained in the line of duty
only if--
(1) It is sustained in the course of--
(i) Performance of line of duty activity or a line of duty action;
or
(ii) Authorized commuting; or
(2) Convincing evidence demonstrates that such injury resulted from
the injured party's status as a public safety officer.
Mental faculties means brain function.
Natural child--An individual is a natural child of a public safety
officer only if he is a biological child of the officer, and the
officer is alive at the time of his birth.
Occupational disease means a disease that routinely constitutes a
special hazard in, or is commonly regarded as a concomitant of, an
individual's occupation.
Official capacity--An individual serves a public agency in an
official capacity only if--
(1) He is officially authorized, -recognized, or -designated (by
such agency) as functionally within or -part of it; and
(2) His acts and omissions, while so serving, are legally those of
such agency, which legally recognizes them as such (or, at a minimum,
does not deny (or has not denied) them to be such).
Official duties means duties that are officially authorized, -
recognized, or -designated by an employing entity, such that the
performance of those duties is legally the action of such entity, which
legally recognizes it as such (or, at a minimum, does not deny (or has
not denied) it to be such).
Officially recognized or designated member of a department or
agency means a member of a department or agency, or of an
instrumentality, of a government described in the Act, at 42 U.S.C.
3796b(8), who is officially recognized (or officially designated) as
such a member by the same.
Officially recognized or designated public employee of a department
or agency means a public employee of a department or agency who is
officially recognized (or officially designated) as a public safety
officer, by the same.
Officially recognized or designated public employee member of a
squad or crew means a public employee member of a squad or crew who is
officially recognized (or officially designated) as such a public
employee member, by the public agency under whose auspices the squad or
crew operates.
OJP means the Office of Justice Programs, U.S. Department of
Justice.
Parent means a father or a mother.
Parent-child relationship means a relationship between a public
safety officer and another individual, in which the officer has the
role of parent (other than biological or legally-adoptive), as shown by
convincing evidence.
Performance of duties in a grossly negligent manner at the time of
death or catastrophic injury means gross negligence, as of or near the
injury date, in the course of authorized commuting or performance of
line of duty activity or a line of duty action, where such negligence
is a substantial contributing factor in bringing such death or injury
about.
Posthumous child--An individual is a posthumous child of a public
safety officer only if he is a biological child of the officer, and the
officer is--
(1) Alive at the time of his conception; and
(2) Not alive at the time of his birth.
PSOB determining official means, as applicable, any of the
following:
(1) The PSOB Office;
(2) The Hearing Officer; or
(3) The Director.
PSOB Office means the unit of BJA that directly administers the
Public Safety Officers' Benefits program, except that, with respect to
the making of any finding, determination, affirmance, reversal,
assignment, authorization, decision, judgment, waiver, or other ruling,
it means such unit, acting with the concurrence of OJP's General
Counsel.
Public employee means--
(1) An employee of a government described in the Act, at 42 U.S.C.
3796b(8), (or of a department or agency thereof) and whose acts and
omissions while so employed are legally those of such government, which
legally recognizes them as such (or, at a minimum, does not deny (or
has not denied) them to be such); or
(2) An employee of an instrumentality of a government described in
the Act, at
[[Page 46041]]
42 U.S.C. 3796b(8), who is eligible to receive death or disability
benefits from such government on the same basis as an employee of that
government (within the meaning of paragraph (1) of this definition)
would.
Public employee member of a squad or crew means a member of a squad
or crew who is a public employee under the auspices of whose public
agency employer the squad or crew operates.
Public employee of a department or agency means a public employee
whose public agency employer is the department or agency.
Qualified beneficiary--An individual is a qualified beneficiary
under the Act, at 42 U.S.C. 3796c-1 or Public Law 107-37, only if he is
an eligible payee--
(1) Who qualifies as a beneficiary pursuant to a determination
that--
(i) The requirements of the Act, at 42 U.S.C. 3796(a) or (b)
(excluding the limitations relating to appropriations), as applicable,
have been met; and
(ii) The provisions of this part, as applicable, relating to payees
otherwise have been met; and
(2) Whose actions were not a substantial contributing factor to the
death of the public safety officer (with respect to a claim under
subpart B of this part).
Representative services include expenses incurred in connection
with such services.
Rescue activity means search or rescue assistance in locating or
extracting from danger persons lost, missing, or in imminent danger of
serious bodily harm.
Rescue squad or ambulance crew means a squad or crew whose members
are rescue workers, ambulance drivers, paramedics, health-care
responders, emergency medical technicians, or other similar workers,
who--
(1) Are trained in rescue activity or the provision of emergency
medical services; and
(2) As such members, have the legal authority and -responsibility
to--
(i) Engage in rescue activity; or
(ii) Provide emergency medical services.
Spouse means an individual's lawful husband, -wife, -widower, or -
widow (i.e., with whom the individual lawfully entered into marriage),
and includes a spouse living apart from the individual, other than
pursuant to divorce, except that, notwithstanding any other provision
of law--
(1) For an individual purporting to be a spouse on the basis of a
common-law marriage (or a putative marriage) to be considered a spouse
within the meaning of this definition, it is necessary (but not
sufficient) for the jurisdiction of domicile of the parties to
recognize such individual as the lawful spouse of the other; and
(2) In deciding who may be the spouse of a public safety officer--
(i) The relevant jurisdiction of domicile is the officer's (as of
the injury date); and
(ii) With respect to a claim under subpart B of this part, the
relevant date is that of the officer's death.
Stepchild--An individual is a stepchild of a public safety officer
only if the individual is the legally-adoptive or biological first-
generation offspring of a public safety officer's current, deceased, or
former spouse, which offspring (not having been legally adopted by the
officer)--
(1) Was conceived before the marriage of the officer and the
spouse; and
(2) As of the injury date--
(i) Was known by the officer not to be his biological first-
generation offspring; and
(ii) After the officer obtained such knowledge--
(A) Received over half of his support from the officer;
(B) Had as his principal place of abode the home of the officer and
was a member of the officer's household; or
(C) Was in a parent-child relationship with the officer.
Stress or strain includes physical stress or strain, mental stress
or strain, post-traumatic stress disorder, and depression.
Stroke means cerebral vascular accident.
Student means an individual who meets the definition provided in
the Act, at 42 U.S.C. 3796b(3)(ii), with respect to an educational/
academic institution.
Substantial contributing factor--A factor substantially contributes
to a death, injury, or disability, if the factor--
(1) Contributed to the death, injury, or disability to a
significant degree; or
(2) Is a substantial factor in bringing the death, injury, or
disability about.
Substantial factor--A factor substantially brings about a death,
injury, disability, heart attack, or stroke if--
(1) The factor alone was sufficient to have caused the death,
injury, disability, heart attack, or stroke; or
(2) No other factor (or combination of factors) contributed to the
death, injury, disability, heart attack, or stroke to so great a degree
as it did.
Suppression of fire means extinguishment, physical prevention, or
containment of fire, including on-site hazard evaluation.
Terrorist attack--An event or act is a terrorist attack within the
meaning of the Act, at 42 U.S.C. 3796c-1(a), only if the Attorney
General determines that--
(1) There is a reasonable indication that the event or act was (or
would be or would have been, with respect to a priori prevention or
investigation efforts) an act of domestic or international terrorism
within the meaning of the criminal terrorism laws, at 18 U.S.C. 2331;
and
(2) The event or act (or the circumstances of death or injury) was
of such extraordinary or cataclysmic character as to make
particularized factual findings impossible, impractical, unnecessary,
or unduly burdensome.
Voluntary intoxication at the time of death or catastrophic injury
means the following:
(1) With respect to alcohol,
(i) In any claim arising from a public safety officer's death in
which the death was simultaneous (or practically simultaneous) with the
injury, it means intoxication as defined in the Act, at 42 U.S.C.
3796b(5), unless convincing evidence demonstrates that the officer did
not introduce the alcohol into his body intentionally; and
(ii) In any claim not described in paragraph (1)(i) of this
definition, unless convincing evidence demonstrates that the officer
did not introduce the alcohol into his body intentionally, it means
intoxication--
(A) As defined in the Act, at 42 U.S.C. 3796b(5), mutatis mutandis
(i.e., with ``post-mortem'' (each place it occurs) and ``death'' being
substituted, respectively, by ``post-injury'' and ``injury''); and
(B) As of the injury date; and
(2) With respect to drugs or other substances, it means a
disturbance of mental or physical faculties resulting from their
introduction into the body of a public safety officer, as evidenced by
the presence therein, as of the injury date--
(i) Of any controlled substance included on Schedule I of the drug
control and enforcement laws (see 21 U.S.C. 812(a)), or any controlled
substance included on Schedule II, III, IV, or V of such laws (see 21
U.S.C. 812(a)) and with respect to which there is no therapeutic range
or maximum recommended dosage, unless convincing evidence demonstrates
that such introduction was not a culpable act of the officer's under
the criminal laws; or
(ii) Of any controlled substance included on Schedule II, III, IV,
or V of the drug control and enforcement laws (see 21 U.S.C. 812(a))
and with respect to which there is a therapeutic range or maximum
recommended dosage--
[[Page 46042]]
(A) At levels above or in excess of such range or dosage, unless
convincing evidence demonstrates that such introduction was not a
culpable act of the officer's under the criminal laws; or
(B) At levels at, below, or within such range or dosage, unless
convincing evidence demonstrates that--
(1) Such introduction was not a culpable act of the officer's under
the criminal laws; or
(2) The officer was not acting in an intoxicated manner immediately
prior to the injury date.
Sec. 32.4 Terms; construction, severability.
(a) The first three provisions of 1 U.S.C. 1 (rules of
construction) shall apply.
(b) If benefits are denied to any individual pursuant to the Act,
at 42 U.S.C. 3796a(4), or otherwise because his actions were a
substantial contributing factor to the death of the public safety
officer, such individual shall be presumed irrebuttably, for all
purposes, not to have survived the officer.
(c) Any provision of this part held to be invalid or unenforceable
by its terms, or as applied to any person or circumstance, shall be
construed so as to give it the maximum effect permitted by law, unless
such holding shall be one of utter invalidity or unenforceability, in
which event such provision shall be deemed severable herefrom and shall
not affect the remainder hereof or the application of such provision to
other persons not similarly situated or to other, dissimilar
circumstances.
Sec. 32.5 Evidence.
(a) Except as otherwise may be expressly provided in the Act or
this part, a claimant has the burden of persuasion as to all material
issues of fact, and by the standard of proof of ``more likely than
not.''
(b) Except as otherwise may be expressly provided in this part, the
PSOB determining official may, at his discretion, consider (but shall
not be bound by) the factual findings of a public agency.
(c) Rules 401 (relevant evidence), 402 (admissibility), 602 to 604
(witnesses), 701 to 704 (testimony), 901 to 903 (authentication), and
1001 to 1008 (contents of writings, records, and photographs) of the
Federal Rules of Evidence shall apply to all filings, hearings, and
other proceedings or matters.
(d) In determining a claim, the PSOB determining official may, at
his discretion, draw an adverse inference if, without reasonable
justification or excuse--
(1) A claimant fails or refuses to file with the PSOB Office--
(i) Such material- or relevant evidence or -information within his
possession, control, or ken as may reasonably be requested from time to
time by such official; or
(ii) Such authorizations or waivers as may reasonably be requested
from time to time by such official to enable him (or to assist in
enabling him) to obtain access to material- or relevant evidence or -
information of a medical, personnel, financial, or other confidential
nature; or
(2) A claimant under subpart C of this part fails or refuses to
appear in person--
(i) At his hearing under subpart E of this part (if there be such a
hearing); or
(ii) Before such official (or otherwise permit such official
personally to observe his condition), at a time and location reasonably
convenient to both, as may reasonably be requested by such official.
(e) In determining a claim, the PSOB determining official may, at
his discretion, draw an inference of voluntary intoxication at the time
of death or catastrophic injury if, without reasonable justification or
excuse, appropriate toxicologic analysis (including autopsy, in the
event of death) is not performed, and/or the results thereof are not
filed with the PSOB Office, where there is credible evidence suggesting
that intoxication may have been a factor in the death or injury, or
that the public safety officer--
(1) As of or near the injury date, was--
(i) A consumer of alcohol)--
(A) In amounts likely to produce a blood-alcohol level of .10 per
centum or greater in individuals similar to the officer in weight and
sex; or
(B) In any amount, after ever having been treated at an inpatient
facility for alcoholism;
(ii) A consumer of controlled substances included on Schedule I of
the drug control and enforcement laws (see 21 U.S.C. 812(a)); or
(iii) An abuser of controlled substances included on Schedule II,
III, IV, or V of the drug control and enforcement laws (see 21 U.S.C.
812(a)); or
(2) Immediately prior to the injury date, was under the influence
of alcohol or drugs or other substances or otherwise acting in an
intoxicated manner.
(f) In determining a claim under the Act, at 42 U.S.C. 3796c-1 or
Public Law 107-37, the certification described therein shall constitute
prima facie evidence--
(1) Of the public agency's acknowledgment that the public safety
officer, as of the injury date, was (as applicable)--
(i) A public safety officer of the kind described in the
certification;
(ii) Employed by the agency;
(iii) One of the following:
(A) With respect to a law enforcement officer, an officer of the
agency;
(B) With respect to a firefighter,
(1) An officially recognized or designated member of the agency (if
it is a legally organized volunteer fire department); or
(2) An employee of the agency;
(C) With respect to a chaplain,
(1) An officially recognized or designated member of the agency (if
it is a legally organized police or volunteer fire department); or
(2) An officially recognized or designated public employee of the
agency (if it is a legally organized police or fire department);
(D) With respect to a member of a rescue squad or ambulance crew,
an officially recognized or designated public employee member of one of
the agency's rescue squads or ambulance crews; or
(E) With respect to a disaster relief worker, an employee of the
agency (if it is described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C)); and
(iv) Killed (with respect to a claim under subpart B of this part),
or totally and permanently disabled (with respect to a claim under
subpart C of this part), as a direct and proximate result of a line of
duty injury; and
(2) That there are no eligible payees other than those identified
in the certification.
Sec. 32.6 Payment and repayment.
(a) No payment shall be made to (or on behalf of) more than one
individual, on the basis of being a particular public safety officer's
spouse.
(b) No payment shall be made, save--
(1) To (or on behalf of) a living payee; and
(2) Pursuant to--
(i) A claim filed by (or on behalf of) such payee; and
(ii) Except as provided in the Act, at 42 U.S.C. 3796(c), approval
of such claim.
(c) Any amounts that would be paid but for the provisions of
paragraph (b) of this section shall be retained by the United States
and not paid.
(d) With respect to the amount paid to a payee (or on his behalf)
pursuant to a claim, the payee shall repay the following, unless, for
good cause shown, the Director grants a full or partial waiver pursuant
to the Act, at 42 U.S.C. 3796(m):
[[Page 46043]]
(1) The entire amount, if approval of the claim was based, in whole
or in material part, on the payee's (or any other person's or entity's)
fraud, concealment or withholding of evidence or information, false or
inaccurate statements, mistake, wrongdoing, or deception; or
(2) The entire amount subject to divestment, if the payee's
entitlement to such payment is divested, in whole or in part, such as
by the subsequent discovery of individuals entitled to make equal or
superior claims.
(e) At the discretion of the Director, repayment of amounts owing
or collectable under the Act or this part may, as applicable, be
executed through setoffs against future payments on financial claims
under subpart D of this part.
Sec. 32.7 Fees for representative services.
(a) A person seeking to receive any amount from (or with respect
to) a claimant for representative services provided in connection with
any claim may petition the PSOB Office for authorization under this
section. Such petition shall include--
(1) An itemized description of the services;
(2) The total amount sought to be received, from any source, as
consideration for the services;
(3) An itemized description of any representative or other services
provided to (or on behalf of) the claimant in connection with other
claims or causes of action, unrelated to the Act, before any public
agency or non-public entity (including any insurer), arising from the
public safety officer's death, disability, or injury;
(4) The total amount requested, charged, received, or sought to be
received, from any source, as consideration for the services described
in paragraph (a)(3) of this section;
(5) A statement of whether the petitioner has legal training or is
licensed to practice law, and a description of any special
qualifications possessed by the petitioner (other than legal training
or a license to practice law) that increased the value of his services
to (or on behalf of) the claimant;
(6) A certification that the claimant was provided, simultaneously
with the filing of the petition, with--
(i) A copy of the petition; and
(ii) A letter advising the claimant that he could file his comments
on the petition, if any, with the PSOB Office, within thirty-three days
of the date of that letter; and
(7) A copy of the letter described in paragraph (a)(6)(ii) of this
section.
(b) Unless, for good cause shown, the Director extends the time for
filing, no petition under paragraph (a) of this section shall be
considered if the petition is filed with the PSOB Office later than one
year after the date of the final agency determination of the claim.
(c) Subject to paragraph (d) of this section, an authorization
under paragraph (a) of this section shall be based on consideration of
the following factors:
(1) The nature of the services provided by the petitioner;
(2) The complexity of the claim;
(3) The level of skill and competence required to provide the
petitioner's services;
(4) The amount of time spent on the claim by the petitioner;
(5) The results achieved as a function of the petitioner's
services;
(6) The level of administrative or judicial review to which the
claim was pursued and the point at which the petitioner entered the
proceedings;
(7) The ordinary, usual, or customary fee charged by other persons
(and by the petitioner) for services of a similar nature; and
(8) The amount authorized by the PSOB Office in similar cases.
(d) No amount shall be authorized under paragraph (a) of this
section for--
(1) Any stipulated-, percentage-, or contingency fee;
(2) Services at a rate in excess of that specified in 5 U.S.C.
504(b)(1)(A)(ii) (Equal Access to Justice Act); or
(3) Services provided in connection with--
(i) Obtaining or providing evidence or information previously
obtained by the PSOB determining official;
(ii) Preparing the petition; or
(iii) Explaining or delivering an approved claim to the claimant.
(e) Upon a petitioner's failure (without reasonable justification
or excuse) to pursue in timely fashion his filed petition under
paragraph (a) of this section, the Director may, at his discretion,
deem the same to be abandoned, as though never filed. Not less than
thirty-three days prior thereto, the PSOB Office shall serve the
petitioner and the claimant with notice of the Director's intention to
exercise such discretion.
(f) Upon its authorizing or not authorizing the payment of any
amount under paragraph (a) of this section, the PSOB Office shall serve
notice of the same upon the claimant and the petitioner. Such notice
shall specify the amount, if any, the petitioner is authorized to
charge the claimant and the basis of the authorization.
(g) No agreement for representative services in connection with a
claim shall be valid if the agreement provides for any consideration
other than under this section. A person's receipt of consideration for
such services other than under this section may, among other things, be
the subject of referral by BJA to appropriate professional,
administrative, disciplinary, or other legal authorities.
Sec. 32.8 Exhaustion of administrative remedies.
No determination or negative disability finding that, at the time
made, may be subject to a request for a Hearing Officer determination,
a motion for reconsideration, or a Director appeal, shall be considered
a final agency determination for purposes of judicial review, unless
all administrative remedies have been exhausted.
Subpart B--Death Benefit Claims
Sec. 32.11 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to claims made under the Act--
(a) At 42 U.S.C. 3796(a); or
(b) At 42 U.S.C. 3796c-1 or Public Law 107-37, with respect to a
public safety officer's death.
Sec. 32.12 Time for filing claim.
(a) Unless, for good cause shown, the Director extends the time for
filing, no claim shall be considered if it is filed with the PSOB
Office after the later of--
(1) Three years after the public safety officer's death; or
(2) One year after the receipt or denial of any benefits described
in Sec. 32.15(a)(1)(i) (or the receipt of the certification described
in Sec. 32.15(a)(1)(ii)).
(b) A claimant may file with his claim such supporting evidence and
legal arguments as he may wish to provide.
Sec. 32.13 Definitions.
Adoptive parent of a public safety officer means any individual who
(not being a step-parent), as of the injury date, was the legally-
adoptive parent of the public safety officer, or otherwise was in a
child-parent relationship with him.
Beneficiary of a life insurance policy of a public safety officer--
An individual (living or deceased on the date of death of the public
safety officer) is designated as beneficiary of a life insurance policy
of such officer as of such date, only if the designation is, as of such
date, legal and valid (as a designation of beneficiary of a life
insurance policy) and unrevoked (by such officer or by operation of
law), except that--
(1) Any designation of an individual (including any designation of
the
[[Page 46044]]
biological or adoptive offspring of such individual) made in
contemplation of such individual's marriage (or purported marriage) to
such officer shall be considered to be revoked by such officer as of
such date of death if the marriage (or purported marriage)--not having
taken place as of such date of death--did not take place when
scheduled, unless preponderant evidence demonstrates that--
(i) The alteration in schedule was for reasons other than personal
differences between the officer and the individual; or
(ii) No such revocation was intended by the officer; and
(2) Any designation of a spouse (or purported spouse) made in
contemplation of or during such spouse's (or purported spouse's)
marriage (or purported marriage) to such officer (including any
designation of the biological or adoptive offspring of such individual)
shall be considered to be revoked by such officer as of such date of
death if the spouse (or purported spouse) is divorced from such officer
after the date of designation and before such date of death, unless
preponderant evidence demonstrates that no such revocation was intended
by the officer.
Beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A)--An
individual (living or deceased on the date of death of the public
safety officer) is designated, by such officer (and as of such date),
as beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A), only if the
designation is, as of such date, legal and valid and unrevoked (by such
officer or by operation of law), except that--
(1) Any designation of an individual (including any designation of
the biological or adoptive offspring of such individual) made in
contemplation of such individual's marriage (or purported marriage) to
such officer shall be considered to be revoked by such officer as of
such date of death if the marriage (or purported marriage)--not having
taken place as of such date of death--did not take place when
scheduled, unless preponderant evidence demonstrates that--
(i) The alteration in schedule was for reasons other than personal
differences between the officer and the individual; or
(ii) No such revocation was intended by the officer; and
(2) Any designation of a spouse (or purported spouse) made in
contemplation of or during such spouse's (or purported spouse's)
marriage (or purported marriage) to such officer (including any
designation of the biological or adoptive offspring of such spouse (or
purported spouse) shall be considered to be revoked by such officer as
of such date of death if the spouse (or purported spouse) is divorced
from such officer subsequent to the date of designation and before such
date of death, unless preponderant evidence demonstrates that no such
revocation was intended by the officer.
Cardiovascular disease includes heart attack and stroke.
Child-parent relationship means a relationship between a public
safety officer and another individual, in which the individual (other
than the officer's biological or legally-adoptive parent) has the role
of parent, as shown by convincing evidence.
Circumstances other than engagement or participation means--
(1) An event or events; or
(2) An intentional risky behavior or intentional risky behaviors.
Commonly accepted means generally agreed upon within the medical
profession.
Competent medical evidence to the contrary--The presumption raised
by the Act, at 42 U.S.C. 3796(k), is overcome by competent medical
evidence to the contrary, when evidence indicates to a degree of
medical probability that circumstances other than any engagement or
participation described in the Act, at 42 U.S.C. 3796(k)(1), considered
in combination (as one circumstance) or alone, were a substantial
factor in bringing the heart attack or stroke about.
Direct and proximate result of a heart attack or stroke--A death
results directly and proximately from a heart attack or stroke if the
heart attack or stroke is a substantial factor in bringing it about.
Engagement in a situation--A public safety officer is engaged in a
situation only when, within his line of duty--
(1) He is in the course of actually--
(i) Engaging in law enforcement;
(ii) Suppressing fire;
(iii) Responding to a hazardous-materials emergency;
(iv) Performing rescue activity;
(v) Providing emergency medical services; or
(vi) Performing disaster relief activity; or
(vii) Otherwise responding to a fire, rescue, or police emergency;
and
(2) The public agency he serves (or the relevant government)
legally recognizes him to be in such course (or, at a minimum, does not
deny (or has not denied) him so to be).
Event includes occurrence, but does not include any engagement or
participation described in the Act, at 42 U.S.C. 3796(k)(1).
Excessive consumption of alcohol--An individual is an excessive
consumer of alcohol if he consumes alcohol in amounts commonly accepted
to be associated with substantially-increased risk of cardiovascular
disease.
Execution of a designation of beneficiary under the Act, at 42
U.S.C. 3796(a)(4)(A) means the legal and valid execution, by the public
safety officer, of a writing that, designating a beneficiary,
expressly, specifically, or unmistakably refers to--
(1) The Act (or the program it creates); or
(2) All the death benefits with respect to which such officer
lawfully could designate a beneficiary (if there be no writing that
satisfies paragraph (1) of this definition).
Execution of a life insurance policy means, with respect to a life
insurance policy, the legal and valid execution, by the individual
whose life is insured thereunder, of--
(1) The approved application for coverage;
(2) A designation of beneficiary; or
(3) A designation of the mode of benefit.
Medical probability--A fact is indicated to a degree of medical
probability, when, pursuant to a medical assessment, the fact is
indicated by a preponderance of such evidence as may be available.
Most recently executed designation of beneficiary under the Act, at
42 U.S.C. 3796(a)(4)(A) means the most recently executed such
designation that, as of the date of death of the public safety officer,
designates a beneficiary.
Most recently executed life insurance policy of a public safety
officer means the most recently executed policy insuring the life of a
public safety officer that, being legal and valid (as a life insurance
policy) upon its execution, as of the date of death of such officer--
(1) Designates a beneficiary; and
(2) Remains legally in effect.
Nonroutine strenuous physical activity--Except as excluded by the
Act, at 42 U.S.C. 3796(l), nonroutine strenuous physical activity means
line of duty activity that--
(1) Is not performed as a matter of routine; and
(2) Entails an unusually-high level of physical exertion.
Nonroutine stressful or strenuous physical activity means
nonroutine stressful physical activity or nonroutine strenuous physical
activity.
Nonroutine stressful physical activity--Except as excluded by the
Act, at 42 U.S.C. 3796(l), nonroutine stressful physical activity means
line of duty activity that--
(1) Is not performed as a matter of routine;
[[Page 46045]]
(2) Entails non-negligible physical exertion; and
(3) Occurs--
(i) With respect to a situation in which a public safety officer is
engaged, under circumstances that objectively and reasonably--
(A) Pose (or appear to pose) significant dangers, threats, or
hazards (or reasonably-foreseeable risks thereof), not faced by
similarly-situated members of the public in the ordinary course; and
(B) Provoke, cause, or occasion an unusually-high level of alarm,
fear, or anxiety; or
(ii) With respect to a training exercise in which a public safety
officer participates, under circumstances that objectively and
reasonably--
(A) Simulate in realistic fashion situations that pose significant
dangers, threats, or hazards; and
(B) Provoke, cause, or occasion an unusually-high level of alarm,
fear, or anxiety.
Parent of a public safety officer means a public safety officer's
surviving--
(1) Biological or adoptive parent whose parental rights have not
been terminated, as of the injury date; or
(2) Step-parent.
Participation in a training exercise--A public safety officer
participates (as a trainer or trainee) in a training exercise only if
it is a formal part of an official training program whose purpose is to
train public safety officers in, prepare them for, or improve their
skills in, particular activity or actions encompassed within their
respective lines of duty.
Public safety agency, organization, or unit means a department or
agency (or component thereof)--
(1) In which a public safety officer serves in an official
capacity, with or without compensation, as such an officer (of any kind
but disaster relief worker); or
(2) Of which a public safety officer is an employee, performing
official duties as described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C), as a disaster relief worker.
Risky behavior means--
(1) Failure (without reasonable justification or excuse) to
undertake treatment--
(i) Of any commonly-accepted cardiovascular-disease risk factor
associated with clinical values, where such risk factor is--
(A) Known (or should be known) to be present; and
(B) Present to a degree that substantially exceeds the minimum
value commonly accepted as indicating high risk;
(ii) Of any disease or condition commonly accepted to be associated
with substantially-increased risk of cardiovascular disease, where such
associated disease or condition is known (or should be known) to be
present; or
(iii) Where a biological parent, -sibling, or -child, is known to
have (or have a history of) cardiovascular disease;
(2) Smoking an average of more than one-half of a pack of
cigarettes (or its equivalent) per day;
(3) Excessive consumption of alcohol;
(4) Consumption of controlled substances included on Schedule I of
the drug control and enforcement laws (see 21 U.S.C. 812(a)), where
such consumption is commonly accepted to be associated with increased
risk of cardiovascular disease; or
(5) Abuse of controlled substances included on Schedule II, III,
IV, or V of the drug control and enforcement laws (see 21 U.S.C.
812(a)), where such abuse is commonly accepted to be associated with
increased risk of cardiovascular disease.
Step-parent of a public safety officer means a current or former
spouse of the legally-adoptive or biological parent (living or
deceased) of a public safety officer conceived (or legally adopted) by
that parent before the marriage of the spouse and the parent, which
spouse (not being a legally-adoptive parent of the officer), as of the
injury date,
(1) Received over half of his support from the officer;
(2) Had as his principal place of abode the home of the officer and
was a member of the officer's household; or
(3) Was in a child-parent relationship with the officer.
Undertaking of treatment--An individual undertakes treatment, when
he consults with a physician licensed to practice medicine in any
jurisdiction described in the Act, at 42 U.S.C. 3796b(8), and complies
substantially with his recommendations.
Sec. 32.14 PSOB Office determination.
(a) Upon its approving or denying a claim, the PSOB Office shall
serve notice of the same upon the claimant (and upon any other claimant
who may have filed a claim with respect to the same public safety
officer). In the event of a denial, such notice shall--
(1) Specify the factual findings and legal conclusions that support
it; and
(2) Provide information as to requesting a Hearing Officer
determination.
(b) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination, by the PSOB
Office, of his filed claim, the Director may, at his discretion, deem
the same to be abandoned. Not less than thirty-three days prior
thereto, the PSOB Office shall serve the claimant with notice of the
Director's intention to exercise such discretion.
Sec. 32.15 Prerequisite certification.
(a) Except as provided in the Act, at 42 U.S.C. 3796c-1 or Public
Law 107-37, and unless, for good cause shown, the Director grants a
waiver, no claim shall be approved unless the following (which shall be
necessary, but not sufficient, for such approval) are filed with the
PSOB Office:
(1) Subject to paragraph (b) of this section, a certification from
the public agency in which the public safety officer served (as of the
injury date) that he died as a direct and proximate result of a line of
duty injury, and either--
(i) That his survivors (listed by name, address, relationship to
him, and amount received) have received (or legally are entitled to
receive) the maximum death benefits legally payable by the agency with
respect to deaths of public safety officers of his kind, rank, and
tenure; or
(ii) Subject to paragraph (c) of this section, that the agency is
not legally authorized to pay--
(A) Any benefits described in paragraph (a)(1)(i) of this section,
to any person; or
(B) Any benefits described in paragraph (a)(1)(i) of this section,
to public safety officers of the kind, rank, and tenure described in
such paragraph;
(2) A copy of any rulings made by any public agency that relate to
the officer's death; and
(3) A certification from the claimant listing every individual
known to him who is or might be the officer's child, spouse, or parent.
(b) The provisions of paragraph (a)(1) of this section shall also
apply with respect to every public agency that legally is authorized to
pay death benefits with respect to the agency described in that
paragraph.
(c) No certification described in paragraph (a)(1)(ii) of this
section shall be deemed complete unless it--
(1) Lists every public agency (other than BJA) that legally is
authorized to pay death benefits with respect to the certifying agency;
or
(2) States that no public agency (other than BJA) legally is
authorized to pay death benefits with respect to the certifying agency.
Sec. 32.16 Payment.
(a) No payment shall be made to (or on behalf of) more than one
individual, on the basis of being a public safety
[[Page 46046]]
officer's parent as his mother, or on that basis as his father. If more
than one parent qualifies as the officer's mother, or as his father,
payment shall be made to the one with whom the officer considered
himself, as of the injury date, to have the closest relationship,
except that any biological or legally-adoptive parent whose parental
rights have not been terminated as of the injury date shall be presumed
rebuttably to be such one.
(b) Any amount payable with respect to a minor or incompetent shall
be paid to his legal guardian, to be expended solely for the benefit of
such minor or incompetent.
Sec. 32.17 Request for Hearing Officer determination.
In order to exhaust his administrative remedies, a claimant seeking
relief from the denial of his claim shall request a Hearing Officer
determination under subpart E of this part. Consistent with Sec. 32.8,
any denial that is not the subject of such a request shall constitute
the final agency determination.
Subpart C--Disability Benefit Claims
Sec. 32.21 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to claims made under the Act--
(a) At 42 U.S.C. 3796(b); or
(b) At 42 U.S.C. 3796c-1 or Public Law 107-37, with respect to a
public safety officer's disability.
Sec. 32.22 Time for filing claim.
(a) Unless, for good cause shown, the Director extends the time for
filing, no claim shall be considered if it is filed with the PSOB
Office after the later of--
(1) Three years after the injury date; or
(2) One year after the receipt or denial of any benefits described
in Sec. 32.25(a)(1)(i) (or receipt of the certification described in
Sec. 32.25(a)(1)(ii)).
(b) A claimant may file with his claim such supporting evidence and
legal arguments as he may wish to provide.
Sec. 32.23 Definitions.
Direct result of an injury--A disability results directly from an
injury if the injury is a substantial factor in bringing the disability
about.
Gainful work means full-or part-time activity that actually is
compensated or commonly is compensated.
Medical certainty--A fact exists to a degree of medical certainty,
when, pursuant to a medical assessment, the fact is demonstrated by
convincing evidence.
Permanently disabled--An individual is permanently disabled only if
there is a degree of medical certainty (given the current state of
medicine in the United States) that his disabled condition--
(1) Will progressively deteriorate or remain constant, over his
expected lifetime; or
(2) Otherwise has reached maximum medical improvement.
Product of an injury--Permanent and total disability is produced by
a catastrophic injury suffered as a direct and proximate result of a
personal injury if the disability is a direct result of the personal
injury.
Residual functional capacity means that which an individual still
is capable of doing, as shown by medical (and, as appropriate,
vocational) assessment, despite a disability.
Totally disabled--An individual is totally disabled only if there
is a degree of medical certainty (given the current state of medicine
in the United States) that his residual functional capacity is such
that he cannot perform any gainful work.
Sec. 32.24 PSOB Office determination.
(a) Upon its approving or denying a claim, the PSOB Office shall
serve notice of the same upon the claimant. In the event of a denial,
such notice shall--
(1) Specify the factual findings and legal conclusions that support
it; and
(2) Provide information as to--
(i) Requesting a Hearing Officer determination; or
(ii) As applicable, moving to reconsider a negative disability
finding.
(b) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination of his filed
claim, the Director may, at his discretion, deem the same to be
abandoned. Not less than thirty-three days prior thereto, the PSOB
Office shall serve the claimant with notice of the Director's intention
to exercise such discretion.
Sec. 32.25 Prerequisite certification.
(a) Except as provided in the Act, at 42 U.S.C. 3796c-1 or Public
Law 107-37, and unless, for good cause shown, the Director grants a
waiver, no claim shall be approved unless the following (which shall be
necessary, but not sufficient, for such approval) are filed with the
PSOB Office:
(1) Subject to paragraph (b) of this section, a certification from
the public agency in which the public safety officer served (as of the
injury date) that he was permanently and totally disabled as a direct
result of a line of duty injury, and either--
(i) That he has received (or legally is entitled to receive) the
maximum disability benefits (including workers' compensation) legally
payable by the agency with respect to disabled public safety officers
of his kind, rank, and tenure; or
(ii) Subject to paragraph (c) of this section, that the agency is
not legally authorized to pay--
(A) Any benefits described in paragraph (a)(1)(i) of this section,
to any person; or
(B) Any benefits described in paragraph (a)(1)(i) of this section,
to public safety officers of the kind, rank, and tenure described in
such paragraph; and
(2) A copy of--
(i) Each State, local, and federal income tax return filed by or on
behalf of the public safety officer from the year before the injury
date to the date of determination by the PSOB determining official; and
(ii) Any rulings made by any public agency that relate to the
claimed disability.
(b) The provisions of paragraph (a)(1) of this section shall also
apply with respect to every public agency that legally is authorized to
pay disability benefits with respect to the agency described in that
paragraph.
(c) No certification described in paragraph (a)(1)(ii) of this
section shall be deemed complete unless it--
(1) Lists every public agency (other than BJA) that legally is
authorized to pay disability benefits with respect to the certifying
agency; or
(2) States that no public agency (other than BJA) legally is
authorized to pay disability benefits with respect to the certifying
agency.
Sec. 32.26 Payment.
The amount payable on a claim shall be the amount payable, as of
the injury date, pursuant to the Act, at 42 U.S.C. 3796(b).
Sec. 32.27 Motion for reconsideration of negative disability finding.
A claimant whose claim is denied in whole or in part on the ground
that he has not shown that his claimed disability is total and
permanent may move for reconsideration, under Sec. 32.28, of the
specific finding as to the total and permanent character of the claimed
disability (in lieu of his requesting a Hearing Officer determination
with respect to the same).
Sec. 32.28 Reconsideration of negative disability finding.
(a) Unless, for good cause shown, the Director extends the time for
filing, no negative disability finding described in Sec. 32.27 shall
be reconsidered if the
[[Page 46047]]
motion under that section is filed with the PSOB Office later than
thirty-three days after the service of notice of the denial.
(b) Notwithstanding any other provision of this section, no
negative disability finding described in Sec. 32.27 shall be
reconsidered--
(1) If or after such reconsideration is rendered moot (e.g., by the
final denial of the claim on other grounds, without possibility of
further administrative or judicial recourse); or
(2) If a request for a Hearing Officer determination has been filed
in timely fashion with respect to such finding.
(c) Unless, for good cause shown, the Director grants a waiver,
upon the making of a motion under Sec. 32.27, reconsideration of the
negative disability finding described in that section shall be stayed
for three years. Upon the conclusion of the stay, the claimant shall
have not more than six years to file evidence with the PSOB Office in
support of his claimed disability.
(d) Upon a claimant's failure (without reasonable justification or
excuse) to file in timely fashion evidence pursuant to paragraph (c) of
this section, the Director may, at his discretion, deem the motion for
reconsideration to be abandoned, as though never filed. Not less than
thirty-three days prior thereto, the PSOB Office shall serve the
claimant with notice of the Director's intention to exercise such
discretion.
(e) No negative disability finding described in Sec. 32.27 shall
be reversed unless a copy (which shall be necessary, but not
sufficient, for such reversal) of each federal, State, and local income
tax return filed by or on behalf of the claimant from the year before
the date of the motion for reconsideration under that section to the
date of reversal is filed with the PSOB Office.
(f) Upon its affirming or reversing a negative disability finding
described in Sec. 32.27, the PSOB Office shall serve notice of the
same upon the claimant. In the event of an affirmance, such notice
shall--
(1) Specify the factual findings and legal conclusions that support
it; and
(2) Provide information as to requesting a Hearing Officer
determination of the disability finding.
Sec. 32.29 Request for Hearing Officer determination.
(a) In order to exhaust his administrative remedies, a claimant
seeking relief from the denial of his claim shall request a Hearing
Officer determination under subpart E of this part--
(1) Of--
(i) His entire claim, if he has not moved for reconsideration of a
negative disability finding under Sec. 32.27; or
(ii) The grounds (if any) of the denial that are not the subject of
such motion, if he has moved for reconsideration of a negative
disability finding under Sec. 32.27; and
(2) Of a negative disability finding that is affirmed pursuant to
his motion for reconsideration under Sec. 32.27.
(b) Consistent with Sec. 32.8, the following shall constitute the
final agency determination:
(1) Any denial not described in Sec. 32.27 that is not the subject
of a request for a Hearing Officer determination under paragraph
(a)(1)(i) of this section;
(2) Any denial described in Sec. 32.27 that is not the subject of
a request for a Hearing Officer determination under paragraph
(a)(1)(ii) of this section, unless the negative disability finding is
the subject of a motion for reconsideration; and
(3) Any affirmance that is not the subject of a request for a
Hearing Officer determination under paragraph (a)(2) of this section.
Subpart D--Educational Assistance Benefit Claims
Sec. 32.31 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to claims (i.e., threshold claims and financial claims) made
under the Act, at 42 U.S.C. 3796d-1.
Sec. 32.32 Time for filing claim.
(a) Subject to the Act, at 42 U.S.C. 3796d-1(c), and to paragraph
(b) of this section, a claim may be filed with the PSOB Office at any
time after the injury date.
(b) Unless, for good cause shown, the Director grants a waiver, no
financial claim may be filed with the PSOB Office, with respect to a
grading period that commences more than six months after the date of
filing.
(c) A claimant may file with his claim such supporting evidence and
legal arguments as he may wish to provide.
Sec. 32.33 Definitions.
Application means claim (i.e., a threshold claim or a financial
claim).
Assistance means financial assistance.
Child of an eligible public safety officer means the child of a
public safety officer, which officer is an eligible public safety
officer.
Dependent--An individual is a dependent of an eligible public
safety officer, if--
(1) Being a child of the officer, the individual--
(i) Was claimed properly as the officer's dependent (within the
meaning of the Internal Revenue Code, at 26 U.S.C. 152) on the
officer's federal income-tax return (or could have been claimed if such
a return had been required by law)--
(A) For the tax year of (or immediately preceding) either the
injury date or the date of the officer's death (with respect to a claim
by virtue of such death); or
(B) For the relevant tax year (with respect to a claim by virtue of
the officer's disability); or
(ii) Is the officer's posthumous child; or
(2) Being a spouse of the officer at the time of the officer's
death or on the date of the officer's totally and permanently disabling
injury, the individual received over half of his support from the
officer (or had as his principal place of abode the home of the officer
and was a member of the officer's household)--
(i) As of either the injury date or the date of the officer's death
(with respect to a claim by virtue of such death); or
(ii) In the relevant tax year (with respect to a claim by virtue of
the officer's disability).
Educational assistance benefits means benefits specifically to
assist in paying educational expenses.
Educational expenses means such of the following as may be in
furtherance of the educational, professional, or vocational objective
of the program of education that forms the basis of a financial claim:
(1) Tuition and fees, as described in 20 U.S.C. 1087ll(1) (higher
education assistance);
(2) Reasonable expenses for--
(i) Room and board (if incurred for attendance on at least a half-
time basis);
(ii) Books;
(iii) Computer equipment;
(iv) Supplies;
(v) Transportation; and
(3) For attendance on at least a three-quarter-time basis, a
standard allowance for miscellaneous personal expenses that is the
greater of--
(i) The allowance for such expenses, as established by the eligible
educational institution for purposes of financial aid; or
(ii) $200.00 per month.
Eligible dependent means an individual who--
(1) Is a dependent of an eligible public safety officer;
(2) Attends a program of education, as described in the Act, at 42
U.S.C. 3796d-1(a)(1); and
(3) Is otherwise eligible to receive financial assistance pursuant
to the Act or this subpart.
Eligible educational expenses means a claimant's educational
expenses,
[[Page 46048]]
reduced by the amount of educational assistance benefits from non-
governmental organizations that the claimant has received or will
receive.
Eligible public safety officer means a public safety officer--
(1) With respect to whose death, benefits under subpart B of this
part properly have been paid; or
(2) With respect to whose disability, benefits under subpart C of
this part properly--
(i) Have been paid; or
(ii) Would have been paid, but for the operation of paragraph
(b)(1) of Sec. 32.6.
Financial assistance means financial assistance, as described in
the Act, at 42 U.S.C. 3796d-1.
Financial claim means a request for financial assistance, with
respect to attendance at a program of education, for a particular
grading period.
Financial need--An individual is in financial need for a particular
grading period to the extent that the amount of his eligible
educational expenses for that period exceed the sum of--
(1) The amount of his educational assistance benefits as described
in the Act, at 42 U.S.C. 3796d-1(a)(3)(A); and
(2) His expected family contribution calculated pursuant to 20
U.S.C. 1087nn (higher education assistance).
Funds means financial assistance.
Grading period means the period of attendance (e.g., a semester, a
trimester, a quarter) in a program of education, after (or with respect
to) which period grades are assigned, units of credit are awarded, or
courses are considered completed, as determined by the eligible
educational institution.
Prospective financial claim means a financial claim with respect to
a grading period that ends after the claim is filed.
Public safety agency means a public agency--
(1) In which a public safety officer serves in an official
capacity, with or without compensation, as such an officer (of any kind
but disaster relief worker); or
(2) Of which a public safety officer is an employee, performing
official duties as described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C), as a disaster relief worker.
Retroactive financial claim means a financial claim with respect to
a grading period that ends before the claim is filed.
Spouse of an eligible public safety officer at the time of the
officer's death or on the date of a totally and permanently disabling
injury means the spouse of a public safety officer (which officer is an
eligible public safety officer) as of--
(1) The date of the officer's death (with respect to a claim by
virtue of such death); or
(2) The injury date (with respect to a claim by virtue of the
officer's disability).
Tax Year--With respect to a claim by virtue of an eligible public
safety officer's disability, the relevant tax year is--
(1) The tax year of (or immediately preceding) the injury date;
(2) Any tax year during which the program of education that forms
the basis of the claim is attended or is pursued;
(3) The tax year immediately preceding the date on which the
program of education that forms the basis of the claim commenced (or is
to commence); or
(4) The tax year of (or immediately preceding) the officer's death,
where the program of education that forms the basis of the claim
commenced (or is to commence) after the date of such death.
Threshold claim means a request for determination of general
eligibility to receive financial assistance.
Sec. 32.34 PSOB Office determination.
(a) In the event of the PSOB Office's denying a claim, the notice
it serves upon the claimant shall--
(1) Specify the factual findings and legal conclusions that support
the denial; and
(2) Provide information as to requesting a Hearing Officer
determination.
(b) No financial claim shall be approved, unless the claimant's
threshold claim has been approved.
(c) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination of his filed
claim, the Director may, at his discretion, deem the same to be
abandoned. Not less than thirty-three days prior thereto, the PSOB
Office shall serve the claimant with notice of the Director's intention
to exercise such discretion.
Sec. 32.35 Disqualification.
No claim shall be approved if the claimant is--
(a) In default on any student loan obtained under 20 U.S.C. 1091
(higher education assistance), unless, for good cause shown, the
Director grants a waiver; or
(b) Subject to a denial of federal benefits under 21 U.S.C. 862
(drug traffickers and possessors).
Sec. 32.36 Payment and repayment.
(a) The computation described in the Act, at 42 U.S.C. 3796d-
1(a)(2), shall be based on a certification from the eligible
educational institution as to the claimant's full-, three-quarter-,
half-, or less-than-half-time student status, according to such
institution's own academic standards and practices.
(b) No payment shall be made with respect to any grading period
that ended before the injury date.
(c) With respect to any financial claim, no amount shall be payable
that exceeds the amount of the eligible educational expenses that form
the basis of the claim.
(d) In the event that appropriations for a fiscal year are
insufficient for full payment of all approved or anticipated financial
claims, the following payments shall be made--
(1) The amounts payable on approved prospective financial claims
from claimants in financial need, to the extent of such need (if
sufficient funds be available therefor), in the order the claims are
approved;
(2) All other amounts payable on approved prospective financial
claims (in the order the claims are approved), if sufficient funds be
available therefor--
(i) After payment of all amounts payable pursuant to paragraph
(d)(1) of this section; and
(ii) After making allowance for anticipated amounts payable in the
fiscal year pursuant to paragraph (d)(1) of this section; and
(3) The amounts payable on approved retroactive financial claims
(in the order the claims are approved), if sufficient funds be
available therefor--
(i) After payment of all amounts payable pursuant to paragraphs
(d)(1) and (2) of this section; and
(ii) After making allowance for anticipated amounts payable in the
fiscal year, pursuant to paragraphs (d)(1) and (2) of this section.
(e) In the event that, at the conclusion of a fiscal year, any
amounts remain payable on an approved financial claim, such amounts
shall remain payable thereafter until paid (when appropriations be
sufficient therefor).
(f) In the event that any amounts remain payable on an approved
prospective financial claim after the end of the grading period that
forms its basis, such claim shall be deemed an approved retroactive
financial claim for purposes of paragraph (d) of this section.
(g) No payment shall be made to (or on behalf of) any individual,
on the basis of being a particular living public safety officer's
spouse, unless the individual is the officer's spouse on the date of
payment.
[[Page 46049]]
(h) Unless, for good cause shown, the Director grants a full or
partial waiver, a payee shall repay the amount paid to him (or on his
behalf) pursuant to a prospective financial claim if, during the
grading period that forms its basis--
(1) He fails to maintain satisfactory progress under 20 U.S.C.
1091(c) (higher education assistance);
(2) He fails to maintain the enrollment status described in his
claim; or
(3) By his acts or omissions, he is or becomes ineligible for
financial assistance.
Sec. 32.37 Request for Hearing Officer determination.
In order to exhaust his administrative remedies, a claimant seeking
relief from the denial of his claim shall request a Hearing Officer
determination under subpart E of this part. Consistent with Sec. 32.8,
any denial that is not the subject of such a request shall constitute
the final agency determination.
Subpart E--Hearing Officer Determinations
Sec. 32.41 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to requests for Hearing Officer determination of claims
denied under subpart B, C (including affirmances of negative disability
findings described in Sec. 32.27), or D of this part.
Sec. 32.42 Time for filing request for determination.
(a) Unless, for good cause shown, the Director extends the time for
filing, no claim shall be determined if the request therefor is filed
with the PSOB Office later than thirty-three days after the service of
notice of--
(1) The denial (under subpart B, C (except as may be provided in
paragraph (a)(2) of this section), or D of this part) of a claim; or
(2) The affirmance (under subpart C of this part) of a negative
disability finding described in Sec. 32.27.
(b) A claimant may file with his request for a Hearing Officer
determination such supporting evidence and legal arguments as he may
wish to provide.
Sec. 32.43 Appointment and assignment of Hearing Officers.
(a) Pursuant to 42 U.S.C. 3787 (employment and authority of hearing
officers), Hearing Officers may be appointed from time to time by the
Director, to remain on the roster of such Officers at his pleasure.
(b) Upon the filing of a request for a Hearing Officer
determination, the PSOB Office shall assign the claim to a Hearing
Officer on the roster; the PSOB Office may assign a particular claim to
a specific Hearing Officer if it judges, in its discretion, that his
experience or expertise suit him especially for it.
(c) Upon its making the assignment described in paragraph (b) of
this section, the PSOB Office shall serve notice of the same upon
claimant, with an indication that any evidence or legal argument he
wishes to provide is to be filed simultaneously with the PSOB Office
and the Hearing Officer.
(d) With respect to an assignment described in paragraph (b) of
this section, the Hearing Officer's consideration shall be--
(1) De novo, rather than in review of the findings, determinations,
affirmances, reversals, assignments, authorizations, decisions,
judgments, rulings, or other actions of the PSOB Office; and
(2) Consistent with subpart B, C, or D of this part, as applicable.
(e) OJP's General Counsel shall provide advice to the Hearing
Officer as to all questions of law relating to a claim assigned
pursuant to paragraph (b) of this section.
Sec. 32.44 Hearing Officer determination.
(a) Upon his determining a claim, the Hearing Officer shall file
notice of the same simultaneously with the Director (for his review
under subpart F of this part (in the event of approval)), the PSOB
Office, and OJP's General Counsel, which notice shall specify the
factual findings and legal conclusions that support it.
(b) Upon a Hearing Officer's denying a claim, the PSOB Office shall
serve notice of the same upon the claimant (and upon any other claimant
who may have filed a claim with respect to the same public safety
officer), which notice shall--
(1) Specify the Hearing Officer's factual findings and legal
conclusions that support it; and
(2) Provide information as to Director appeals.
(c) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination of his claim
pursuant to his filed request therefor, the Director may, at his
discretion, deem the request to be abandoned, as though never filed.
Not less than thirty-three days prior thereto, the PSOB Office shall
serve the claimant with notice of the Director's intention to exercise
such discretion.
Sec. 32.45 Hearings.
(a) At the election of a claimant under subpart B or C of this
part, the Hearing Officer shall hold a hearing, at a location agreeable
to the claimant and the Officer, for the sole purposes of obtaining,
consistent with Sec. 32.5(c),
(1) Evidence from the claimant and his fact or expert witnesses;
and
(2) Such other evidence as the Hearing Officer, at his discretion,
may rule to be necessary or useful.
(b) Unless, for good cause shown, the Director extends the time for
filing, no election under paragraph (a) of this section shall be
honored if it is filed with the PSOB Office later than ninety days
after service of the notice described in Sec. 32.43(c).
(c) Not less than seven days prior to any hearing, the claimant
shall file simultaneously with the PSOB Office and the Hearing Officer
a list of all expected fact or expert witnesses and a brief summary of
the evidence each witness is expected to provide.
(d) At any hearing, the Hearing Officer--
(1) May exclude any evidence whose probative value is substantially
outweighed by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence; and
(2) Shall exclude witnesses (other than the claimant, or any person
whose presence is shown by the claimant to be essential to the
presentation of his claim), so that they cannot hear the testimony of
other witnesses.
(e) Each hearing shall be recorded, and the original of the
complete record or transcript thereof shall be made a part of the claim
file.
(f) Unless, for good cause shown, the Director grants a waiver, a
claimant's failure to appear at a hearing (in person or through a
representative) shall constitute a withdrawal of his election under
paragraph (a) of this section.
(g) Upon a claimant's failure to pursue in timely fashion his filed
election under paragraph (a) of this section, the Director may, at his
discretion, deem the same to be abandoned. Not less than thirty-three
days prior thereto, the PSOB Office shall serve the claimant with
notice of the Director's intention to exercise such discretion.
Sec. 32.46 Director appeal.
(a) In order to exhaust his administrative remedies, a claimant
seeking relief from the denial of his claim shall appeal to the
Director under subpart F of this part.
(b) Consistent with Sec. 32.8, any claim denial that is not
appealed to the Director under paragraph (a) of this section shall
constitute the final agency determination, unless the denial is
reviewed otherwise under subpart F of this part.
[[Page 46050]]
Subpart F--Director Appeals and Reviews
Sec. 32.51 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to Director appeals and reviews of claim approvals and
denials made under subpart E of this part, and reviews of claim
approvals under the Act, at 42 U.S.C. 3796c-1 or Public Law 107-37.
Sec. 32.52 Time for filing Director appeal.
(a) Unless, for good cause shown, the Director extends the time for
filing, no Director appeal shall be considered if it is filed with the
PSOB Office later than thirty-three days after the service of notice of
the denial (under subpart E of this part) of a claim.
(b) A claimant may file with his Director appeal such supporting
evidence and legal arguments as he may wish to provide.
Sec. 32.53 Review.
(a) Upon the filing of the approval (under subpart E of this part)
of a claim, the Director shall review the same.
(b) The Director may review--
(1) Any claim denial made under subpart E of this part; and
(2) Any claim approval made under the Act, at 42 U.S.C. 3796c-1 or
Public Law 107-37.
(c) Unless the Director judges that it would be unnecessary, the
PSOB Office shall serve notice upon the claimant (and upon any other
claimant who may have filed a claim with respect to the same public
safety officer) of the initiation of a review under paragraph (a) or
(b) of this section. Unless the Director judges that it would be
unnecessary, such notice shall--
(1) Indicate the principal factual findings or legal conclusions at
issue; and
(2) Offer a reasonable opportunity for filing of evidence or legal
arguments.
Sec. 32.54 Director determination.
(a) Upon the Director's approving or denying a claim, the PSOB
Office shall serve notice of the same simultaneously upon the claimant
(and upon any other claimant who may have filed a claim with respect to
the same public safety officer), and upon any Hearing Officer who made
a determination with respect to the claim. In the event of a denial,
such notice shall--
(1) Specify the factual findings and legal conclusions that support
it; and
(2) Provide information as to judicial appeals (for the claimant or
claimants).
(b) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination of his claim
pursuant to his filed Director appeal, the Director may, at his
discretion, deem the same to be abandoned, as though never filed. Not
less than thirty-three days prior thereto, the PSOB Office shall serve
the claimant with notice of the Director's intention to exercise such
discretion.
Sec. 32.55 Judicial appeal.
(a) A claimant seeking relief from the denial of his claim may
appeal judicially under 28 U.S.C. 1491(a) (claims against the United
States).
(b) Consistent with Sec. 32.8, any approval or denial described in
Sec. 32.54(a) shall constitute the final agency determination.
Regina B. Schofield,
Assistant Attorney General.
[FR Doc. 06-6783 Filed 8-9-06; 8:45 am]
BILLING CODE 4410-18-P