Public Safety Officers' Benefits Program, 57347-57372 [2016-18811]
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Vol. 81
Monday,
No. 162
August 22, 2016
Part III
Department of Justice
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28 CFR Part 32
Public Safety Officers’ Benefits Program; Proposed Rule
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WordPerfect, or Adobe PDF formats
only.
FOR FURTHER INFORMATION CONTACT:
Hope Janke, BJA, OJP, at (202) 514–
6278, or toll-free at 1 (888) 744–6513.
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF JUSTICE
28 CFR Part 32
[Docket No.: OJP (BJA) 1722]
RIN 1121–AA86
Public Safety Officers’ Benefits
Program
AGENCY:
Table of Contents
Office of Justice Programs,
Justice.
ACTION:
Notice of proposed rulemaking.
This rulemaking proposes to
make the following changes to current
regulations implementing the Public
Safety Officers’ Benefits (PSOB) Act:
Revising provisions pertaining to the
filing of an application for benefits,
revising provisions that define when an
individual is a public safety officer,
when an officer has sustained a line-ofduty injury, when payment of benefits
is prohibited, and when individuals are
ineligible for payment; revising
provisions pertaining to the
admissibility, sufficiency, and
evaluation of evidence submitted in
PSOB claims; revising provisions
concerning the fees that may be charged
for representation in PSOB claims,
establishing provisions that prescribe
the scope of legal review of PSOB
claims and the completeness of
applications for benefits, and revising
provisions pertaining to the definitions
of permanent and total disability,
payment of benefits, educational
assistance, and other matters necessary
to implement the aforementioned
changes.
DATES: Written comments must be
postmarked and electronic comments
must be submitted on or before October
21, 2016. Comments received by mail
will be considered timely if they are
postmarked on or before that date. The
electronic Federal Docket Management
System (FDMS) will accept comments
until Midnight Eastern Time at the end
of that day.
ADDRESSES: Please address all
comments regarding this rule by U.S.
mail, to: Hope Janke, Bureau of Justice
Assistance, Office of Justice Programs,
810 7th Street NW., Washington, DC
20531; or by telefacsimile to (202) 354–
4135. To ensure proper handling, please
reference OJP Docket No. [insert
number] on your correspondence.
Comments may also be sent
electronically through https://
regulations.gov using the electronic
comment form provided on that site. An
electronic copy of this document is also
available at the https://regulations.gov
Web site. OJP will accept attachments to
electronic comments in Microsoft Word,
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SUMMARY:
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I. Posting of Public Comments
II. Executive Summary
III. Background
IV. Section-by-Section Analysis
V. Regulatory Requirements
I. Posting of Public Comments
Please note that all comments
received are considered part of the
public record and made available for
public inspection online at https://
www.regulations.gov. Information made
available for public inspection includes
personal identifying information (such
as your name, address, etc.) voluntarily
submitted by the commenter.
The Office of Justice Programs (OJP)
does not require you to submit personal
identifying information (such as your
name, address, medical information
etc.) as part of your comment. However,
if you wish to submit such information,
but do not wish it to be posted online,
you must include the phrase
‘‘PERSONAL IDENTIFYING
INFORMATION’’ in the first paragraph
of your comment. You must also locate
all the personal identifying information
that you do not want posted online in
the first paragraph of your comment and
identify what information you want the
agency to redact. Personal identifying
information identified and located as set
forth above will be placed in the
agency’s public docket file, but not
posted online.
If you wish to submit confidential
business information as part of your
comment but do not wish it to be posted
online, you must include the phrase
‘‘CONFIDENTIAL BUSINESS
INFORMATION’’ in the first paragraph
of your comment. You must also
prominently identify confidential
business information to be redacted
within the comment. If a comment has
so much confidential business
information that it cannot be effectively
redacted, the agency may choose not to
post that comment (or to only partially
post that comment) on https://
www.regulations.gov. Confidential
business information identified and
located as set forth above will not be
placed in the public docket file, nor will
it be posted online.
If you wish to inspect the agency’s
public docket file in person by
appointment, please see the FOR
FURTHER INFORMATION CONTACT
paragraph.
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II. Executive Summary
A. Purpose of the Regulatory Action
1. Need for Regulatory Action
The Public Safety Officers’ Benefits
Act of 1976 (PSOB Act) was enacted to
address the emotional and economic
burden placed on the families of
deceased public safety officers by
providing the assurance of a federal
benefit to such survivors.1 As recently
as 2012, the House Committee on the
Judiciary reaffirmed this purpose stating
‘‘[t]he [Public Safety Officers’ Benefits
Act] . . . is an important resource for
the public safety officers and their
families who would potentially face
financial disaster because of the death
or incapacitation of the public safety
officer.’’ 2
As of February 1, 2016, 931 claims for
benefits were pending before the
agency: 761 initial claims for benefits
pending at the PSOB Office, 123 appeals
of PSOB Office determinations pending
with Hearing Officers, and 47 appeals of
Hearing Officer determinations pending
with the BJA Director. A recent audit by
the Department of Justice’s Office of the
Inspector General (OIG) found that
although the PSOB Program processed
56% of determined claims within one
year of filing, other claims took
significantly longer to resolve.3 A
Business Process Improvement (BPI)
review of the PSOB Program completed
by an independent contractor in October
2015 noted, among other things, that
‘‘the combination of the lengthy
processing times and the growing
backlog of open claims indicates
significant changes are needed for the
program to operate efficiently and
process existing and new claims in a
timely manner.’’
To fulfill Congress’ intent that the
PSOB Program remain ‘‘an important
resource’’ for public safety officers and
their families, the proposed rulemaking
would amend regulations implementing
the Act to implement recommendations
from the OIG audit and BPI review,
simplify the process for claimants to
establish eligibility, simplify the
program, and implement statutory
changes to the PSOB Act.
2. Statement of Authority for Regulatory
Action
Under 42 U.S.C. 3796(a)–(b)
(authorizing the agency to promulgate
1 See S. Rep. No. 94–816, at 3–4, as reprinted in
1976 U.S.C.C.A.N. 2504, 2505.
2 H.R. Rpt. 112–548 at 6 (Jun. 25, 2012).
3 U.S. Dept. of Justice, Office of the Inspector
General, Audit of the Office of Justice Programs’
Processing of Public Safety Officers’ Benefit
Programs Claims, Audit Division 15–21 at 8 (July
7, 2015).
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regulations for the determination of
PSOB Program death and disability
claims), 3796c(a) (authorizing the
agency to promulgate regulations for (1)
the determination of PSOB Program
death and disability claims, (2) ‘‘the
recognition of agents or other persons
representing claimants’’ in PSOB death
and disability claims, and (3) the
establishment of ‘‘the maximum fees
which may be charged for services
performed in connection with any
claim’’), 3796d–3(a) (authorizing the
agency to promulgate regulations for
implementing PSOB Educational
Assistance programs), and 3782(a)
(authorizing the agency to establish
regulations ‘‘necessary to the exercise of
[its] functions’’), the agency is
authorized to promulgate regulations
necessary to implement the PSOB Act.
The agency has previously exercised its
regulatory authority to define in
regulations many of the terms essential
to this rulemaking including ‘‘public
agency,’’ ‘‘injury,’’ ‘‘line of duty,’’ ‘‘line
of duty injury,’’ ‘‘official capacity,’’
‘‘firefighter,’’ ‘‘involvement [in crime
and juvenile delinquency control or
reduction],’’ ‘‘gross negligence,’’ and
‘‘voluntary intoxication.’’
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B. Summary of Major Provisions
The proposed rule would make the
following changes in response to the
Dale Long Public Safety Officers’
Benefits Improvement Act of 2012 (Dale
Long Act), as provided in sec. 1086 of
Public Law 112–239:
• Revise the definition of ‘‘child of a
public safety officer;’’
• Define ‘‘line of duty activity or
action’’ for members of rescue squads
and ambulance crews;
• Revise the definition of ‘‘officially
recognized or designated public
employee member of a squad or crew;’’
• Remove the definition of ‘‘public
employee member of a squad or crew;’’
and
• Remove for purposes of educational
assistance definitions of ‘‘dependent,’’
‘‘eligible dependent,’’ and ‘‘tax year.’’
The proposed rule would make the
following changes in response to
identified ambiguities and gaps in
existing regulations, as well as
opportunities to simplify and improve
the program’s administration:
• Expand the definitions of
‘‘firefighter,’’ and ‘‘involvement [in
crime and juvenile delinquency control
or reduction]’’ (a necessary component
to qualify as a ‘‘law enforcement
officer’’) to include firefighter and law
enforcement officer trainees who are
participants in an official training
program required for employment or
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certification as a firefighter or a law
enforcement officer;
• Expand the definitions of ‘‘line of
duty activity or action’’ and ‘‘official
capacity’’ to include a public safety
officer’s actions to save human life in
certain limited circumstances but
without regard to jurisdiction;
• Introduce a definition of ‘‘volunteer
fire department’’ which provides that a
department satisfying the definition
qualifies as an ‘‘instrumentality’’ of a
public agency thereby enabling
otherwise qualified volunteer
firefighters to more easily establish
‘‘public safety officer’’ status;
• Replace the current standard for
determining admissibility of evidence
(the Federal Rules of Evidence) with the
requirement that evidence be ‘‘credible,
probative, and substantial;’’
• Replace existing prerequisite
certification requirements for death and
disability claims with a single provision
authorizing PSOB determining officials
to require that a claimant provide any
evidence necessary to determine
eligibility;
• Establish a limited exception to the
requirement that a claimant must
establish all issues by the standard of
proof of ‘‘more likely than not;’’ when
evidence is equivalent on a particular
issue, the determining official will
resolve such issue in the claimant’s
favor;
• Change from ‘‘clear and
convincing’’ to ‘‘more likely than not’’
the standard of proof required to
establish (1) an officer was injured
because of his or her status as a public
safety officer, (2) total and permanent
disability, and (3) parent-child
relationship;
• Expand the types of permissible fee
arrangements for representative
services, establish a definition for
‘‘attorney’’ and limit paid representation
in PSOB claims to such individuals;
• Establish, consistent with authority
in 42 U.S.C. 3796c(a) providing that the
Bureau of Justice Assistance may
prescribe in regulations ‘‘the maximum
fees which may be charged for services
performed in connection with any
claim,’’ a cap on fees of 12 percent of
the total payment available to a claimant
and establish fee amounts that are
presumptively reasonable in claims
determined at the PSOB Office level (8
percent) and at the Hearing Officer or
BJA Director level (10 percent);
• Revise the definition of ‘‘totally
disabled’’ and related provisions to
address circumstances when a claimant
performs work that is compensated but
not substantial; and
• Require individuals seeking
benefits to file minimum required
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documents (a complete application)
before the agency will treat the
application as a claim for benefits.
C. Projected Costs and Benefits
The proposed rule is not
economically significant as defined in
Executive Orders 12866 and 13563. The
estimated annual increase in PSOB
Program death and disability benefit
costs is $3,398,810, which equates to 10
additional determinations approving
death or disability benefits as compared
to the number of annual approvals
under existing rules. There is no
significant projected increase in
administrative or personnel costs. OJP
estimates that the rulemaking will result
in (1) reduced burden for claimants in
establishing eligibility for benefits, (2)
timelier processing of all claims for
death and disability benefits, and (3)
improved delivery of benefits to eligible
claimants.
III. Background
The Public Safety Officers’ Benefits
(PSOB) Program, 42 U.S.C. 3796 et seq.
(established pursuant to the Public
Safety Officers’ Benefits Act of 1976), is
administered by the Bureau of Justice
Assistance (BJA) of the Office of Justice
Programs (OJP), U.S. Department of
Justice. Generally speaking, the PSOB
Program provides a one-time financial
benefit, currently adjusted for inflation
at $339,881, to the statutorily-eligible
survivors of public safety officers who
die as the direct and proximate result of
personal injuries sustained in the line of
duty, as well as educational assistance
for their spouses and eligible children.
Alternatively, the PSOB Program also
provides the same inflation-adjusted
one-time financial benefit directly to
public safety officers determined to be
permanently and totally disabled as the
direct and proximate result of personal
injury sustained in the line of duty, as
well as educational assistance for their
spouses and eligible children.
Under 42 U.S.C. 3796(a), an
individual seeking PSOB Program death
benefits must establish the following: (1)
That the deceased was a public safety
officer as defined in 42 U.S.C. 3796b, (2)
that the officer died as the direct and
proximate result of an injury, (3) that
the officer’s injury was sustained in the
line of duty, (4) that the claimant is an
eligible beneficiary as identified in 42
U.S.C. 3796(a)(1)–(6), and (5) that no
limitations in 42 U.S.C. 3796a, e.g., the
decedent’s voluntary intoxication or
gross negligence, bar recovery. Under 42
U.S.C. 3796(b), an individual seeking
PSOB Program disability benefits must
establish many of the same facts: (1)
That the claimant was a public safety
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officer as defined in 42 U.S.C. 3796b, (2)
that the officer is permanently and
totally disabled, (3) that such disability
was the direct and proximate result of
an injury, (4) that the officer’s injury
was sustained in the line of duty, and
(5) that no limitations in 42 U.S.C.
3796a bar recovery. Under 42 U.S.C.
3796d–1, the spouse or child of a public
safety officer determined to have been
killed or permanently and totally
disabled as the direct and proximate
result of an injury sustained in the line
of duty is eligible under 42 U.S.C.
3796d–1 to receive financial assistance
for purposes of pursuing a program of
higher education provided that the
claimant is attending or has successfully
completed a qualified education
program.
The agency last published
comprehensive regulations for the PSOB
Program in December 2008. See 73 FR
76520 (Dec. 17, 2008). Since that time,
the Dale Long Act was enacted, which
made several significant amendments to
the PSOB Act. Recently, in a separate
notice of proposed rulemaking (NPRM)
published in the Federal Register on on
July 15, 2016, 81 FR 46019, the agency
proposed regulations that would, among
other things, implement the Dale Long
Act’s provisions offsetting certain
payments, and ensure that the
regulations reflect updated statutory
language regarding the presumption in
42 U.S.C. 3796(k) covering certain heart
attacks, strokes, and vascular ruptures.
The present NPRM addresses other
provisions in the Dale Long Act that the
agency believes would benefit from
rulemaking.
In addition to the Dale Long Act
necessitating regulatory revisions, the
agency has identified the need to revise
its regulations to reflect current
interpretations and practice. Since the
last comprehensive regulatory revision
in 2008, OJP has determined over 2,582
PSOB claims.4 In so doing, it has
identified ambiguities and gaps in
existing regulations, as well as
opportunities to simplify and improve
the program’s administration, while
maintaining program integrity.
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IV. Section-by-Section Analysis
Section 32.2 Computation of Time;
Filing
Section 32.2 provides general
definitions and guidance as to when
something is ‘‘filed’’ with the PSOB
Office or other PSOB determining
officials. Other regulations, e.g., 28 CFR
32.12(a), establish time frames for when
4 Claims determined at the PSOB Office, Hearing
Officer, and BJA Director levels between December
17, 2008 and February 1, 2016.
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a particular type of claim must be filed
and provide that the BJA Director may
waive the time requirements for good
cause shown. Neither the PSOB Act nor
its implementing regulations, however,
defines what constitutes ‘‘good cause.’’
To establish uniform and transparent
criteria for consistently evaluating what
constitutes good cause, the proposed
rule would add a new paragraph (e)
describing the circumstances that may
constitute good cause and warrant a
waiver permitting an individual to file
out of time. Under proposed § 32.2(e),
circumstances beyond the individual’s
control such as lengthy illness or
physical or mental incapacity,
detrimental reliance on erroneous
information provided by the public
safety officer’s agency, public agency
determination of the officer’s (or
survivor’s) eligibility or entitlement to
death or disability benefits after the time
for filing has passed, or other
unavoidable circumstances showing
that an individual could not have
reasonably known about the time limits
for filing may establish good cause.
Examples of evidence establishing
‘‘good cause’ would include a statement
or affidavit from the individual seeking
the extension or other person with
knowledge of the particular basis for the
extension. The proposed rule would
limit the scope of the aforementioned
exceptions by providing that, consistent
with current practice, a lack of
knowledge about the PSOB Program is
not a valid basis for establishing good
cause.
In addition, in preparation for going
to a ‘‘paperless’’ claims processing
system, proposed § 32.2(h) would
permit the BJA Director, after publishing
a Notice in the Federal Register
consistent with 5 U.S.C. 552(a)(1)(C),
and providing reasonable notice through
the PSOB Program Web site, to require
that all claims and supporting
documents be filed in electronic form.
Section 32.3 Definitions
Section 32.3 provides definitions
applicable to all three PSOB Program
components, death, disability, and
education. OJP proposes to amend the
existing definitions in § 32.3 as follows:
• Agent: Under 42 U.S.C. 3796c, the
agency is authorized to promulgate
‘‘regulations governing the recognition
of agents or other persons representing
claimants.’’ The agency has exercised its
regulatory authority to establish in
current § 32.7 provisions governing the
circumstances under which
representatives may charge fees for
representative services in a claim for
benefits under the PSOB Act. However,
the current rules do not define the
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categories of individuals authorized to
provide representative services in PSOB
claims and the agency believes that such
definitions are necessary for the
implementation of proposed rules
providing the categories of individuals
that may charge fees for representative
services. The proposed rule would
define ‘‘agent’’ as an individual who
represents persons seeking PSOB
Program benefits and is not an attorney.
• Attorney: Pursuant to the authority
granted by 42 U.S.C. 3796c(a) providing
that the agency may promulgate
regulations for purposes of recognizing
the agents or other persons representing
claimants under the PSOB Act, the
proposed rule would define the term
‘‘attorney’’ as a member in good
standing of a State bar. The agency
believes that membership in good
standing in a State bar is a reliable
indicator that such a person would be
capable of providing competent and
ethical representation in a claim before
the agency. This rule is intended to
work in conjunction with proposed
§ 32.7, which would limit the ability to
seek fees for representative services to
attorneys as defined in this provision.
• Authorized commuting: the
proposed rule would clarify that a
public safety officer’s return travel from
responding to a fire, rescue, or police
emergency is considered to be in the
line of duty.
• Child of a public safety officer:
From the time of the enactment of the
PSOB Act in 1976,5 until January 1,
2013, an individual’s status as a child
was determined based on the
individual’s status at the time of the
public safety officer’s death. Effective
January 2, 2013, for all claims pending
before BJA on that date, or filed or
accruing thereafter, an individual’s
status as a child is determined at the
time of the public safety officer’s fatal
(or catastrophic, for disability claims),
injury.’’ The revised rule implements
the statutory change by removing
provisions inconsistent with the
amendment such as those that refer to
a ‘‘child [] adopted by [the officer] after
the injury date’’ and retaining the
requirement that an officer’s parental
rights must be intact as of the officer’s
injury date to establish that an
individual was ‘‘a child of a public
safety officer.’’
• Department or agency: The PSOB
Act, for most purposes, defines a public
safety officer as an individual serving a
public agency in an official capacity as
a law enforcement officer, firefighter, or
chaplain. 42 U.S.C. 3796b(9)(A). As
defined in 42 U.S.C. 3796b(8), the term
5 Public
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public agency generally refers to a unit
of government at the federal, state, or
local level, and includes subordinate
entities of such governments such as a
‘‘department’’ or ‘‘agency’’ as well as an
‘‘instrumentality’’ of any of the
aforementioned entities. Nothing in the
statutory definition of ‘‘public agency’’
or the regulatory definitions of
‘‘instrumentality’’ or ‘‘department or
agency’’ in 28 CFR 32.3 expressly
addresses or covers those entities
created by interstate compact, many of
which perform public safety activity
pursuant to the terms of the compact
(e.g., the Washington Metropolitan Area
Transit Authority or the Port Authority
of New York and New Jersey). Because
OJP has consistently interpreted the
terms ‘‘public agency’’ and ‘‘department
or agency’’ to include such entities, it
proposes to add a new provision in 28
CFR 32.3 (defining Department or
agency) to make this interpretation
clear. Under the proposed rule, the
definition of ‘‘department or agency’’
would include an entity created by
interstate compact between two or more
States or between a State(s) and the
District of Columbia with the consent of
the United States Congress.
• Determination: Consistent with the
proposed removal of current § 32.27,
which provides claimants with the
option to seek reconsideration of an
adverse disability determination, the
proposed rule would eliminate from the
definition of ‘‘determination’’ reference
to such a motion.
• Divorce: Under the current
regulation, a spouse or purported
spouse of an individual may be found
to be ‘‘divorced’’ for purposes of the
PSOB Program if, after the marriage or
purported marriage, the spouse or
purported spouse holds himself out as
being divorced from, or otherwise not
married to the individual, holds himself
out as being married to another
individual, or is a party to a marriage
ceremony with another individual. The
agency’s experience with such nonjudicial divorce, particularly with longestranged parties, is that evidence of
such acts is inherently unreliable. To
make more reliable agency findings of
divorce and simplify the administration
of the program, the proposed rule would
eliminate as a basis for finding
‘‘divorce’’ all dissolutions of marriage
other than ordered by a court.
• Employee: The proposed rule
would clarify, pursuant to the statutory
limitation in 42 U.S.C. 3796a(5), that the
term does not include any active-duty
member of the armed forces.
• Firefighter: Absent from the
language of the PSOB Act is any
mention of whether public safety officer
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candidates or trainees qualify as public
safety officers. In a recent report, the
House Judiciary Committee noted that
‘‘certain provisions of the [PSOB Act]
have the effect of excluding from the
program some classes or subclasses of
safety officers and of trainees who might
better be included under certain
circumstances,’’ including police
academy and firefighter trainees.6
Under current regulations, a
firefighter trainee, even if participating
in a fire suppression exercise of the
trainee’s public agency that is
mandatory for his or her certification or
employment as a firefighter by his or her
public agency, generally does not
qualify as a ‘‘public safety officer’’ for
purposes of the PSOB Act. This is
because the regulatory definition of
‘‘firefighter’’ requires that a firefighter
possess, among other things, the legal
authority and responsibility to engage in
the suppression of fire outside of the
training environment to be considered a
‘‘public safety officer.’’ As a result, such
trainees are ineligible except where a
trainee has the legal authority and
responsibility to act without limitation
at the time of the injury.7
As demonstrated by the claims for
death benefits submitted on behalf of
trainees, the hazards faced while
participating in training mandatory to
serve a public agency as a firefighter
(e.g., the suppression of fire), are similar
to that encountered in serving the
public. Accordingly, OJP believes that a
limited expansion of the current rule to
include trainees is warranted.
The proposed rule expands the
definition of ‘‘firefighter’’ to cover an
individual who participates in an
official training program of the officer’s
public agency involving the suppression
of fire or hazardous-material response
that is mandatory for the individual’s
employment or certification as a
firefighter with a particular public
agency. The proposed rule would
permit payment on behalf of any
individual who died or to any who was
permanently and totally disabled as the
direct and proximate result of an injury
sustained while participating in such
training.
• Gross negligence: Under 42 U.S.C.
3796a(3), the agency is prohibited from
paying benefits when, at the time of the
6 H.R.
Rpt. 112–548 at 8–9 (June 25, 2012).
a result of the current definition of
‘‘firefighter,’’ a trainee firefighter who is killed or
permanently disabled while participating in an
official training program of his or her public agency,
that is mandatory for the trainee’s certification or
employment as a firefighter with that particular
public agency, is ineligible for benefits under the
PSOB Act by virtue of not qualifying as a ‘‘public
safety officer.’’
7 As
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officer’s fatal or catastrophic injury, the
officer is performing his or her duties in
a grossly negligent manner. Under the
current definition in 28 CFR 32.3, ‘‘gross
negligence’’ is established when the
officer’s performance of duty indicates
an extraordinary departure from the
appropriate degree of care, e.g., a
heedless, wanton, or reckless action,
and occurs in the face of significant
hazards, where serious injury or damage
is likely to follow, or where great danger
is readily apparent. The agency’s
experience is that the current rule is
difficult to apply in part due to the
multiple terms defining the degree of
deviation from the standard of care
required to establish such negligence as
well as the breadth of circumstances
under which such a deviation would
establish such negligence.
The proposed rule streamlines the
definition by using a single term,
‘‘reckless,’’ to describe the deviation
from the appropriate standard of care,
and by using a single set of conditions,
‘‘under circumstances where it is highly
likely that serious harm will follow,’’ to
describe the conditions under which
such misconduct would implicate the
statutory bar to payment in 42 U.S.C.
3796a(3). The proposed rule also
provides that the standard for measuring
a public safety officer’s conduct is that
of a similarly situated public safety
officer. The proposed rule is intended to
simplify the agency’s application of this
statutory bar to payment and limit its
application to those circumstances in
which it is apparent that the officer’s
gross negligence was a substantial
contributing factor in the officer’s
injury.
• Injury: To establish an ‘‘injury’’
under current 28 CFR 32.3, a public
safety officer must have sustained a
traumatic physical wound or
traumatized physical condition of the
body that is the direct and proximate
result of an external force or other factor
listed in the definition, including,
among other things, chemicals, bacteria,
or climatic conditions.
The current rule expressly excludes
from coverage as an injury
‘‘occupational disease’’ or ‘‘any
condition of the body caused or
occasioned by stress or strain,’’ both of
which are defined further in 28 CFR
32.3. Under current regulations,
conditions caused by stress or strain and
thus excluded from coverage as an
injury generally include those caused by
physical exertion; chronic, cumulative,
and progressive conditions;
cardiovascular disease; and heart
attacks, strokes, and vascular ruptures.
The agency’s experience is that the
current regulatory requirement that an
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injury must in all cases be the result of
an external force or factor, taken
together with the current ‘‘stress or
strain’’ exclusion, excludes from
coverage under the PSOB Act all
physical conditions caused by exertion.
As a result of the current definitions, an
officer’s death or disability from an
acute and immediate physical condition
such as exertional heatstroke or
rhabdomyolysis 8 would not be eligible
for benefits. While retaining the
longstanding interpretation that an
injury under the PSOB Act is a
traumatic physical wound or
traumatized physical condition of the
body directly and proximately caused
by external forces or factors, the
proposed rule would provide, consistent
with BJA’s current interpretation, that
injury also includes acute and
immediate musculoskeletal strain or
muscle damage, and heatstroke, each of
which may be established as an acute
condition, and without an external force
or factor.
In addition, the agency’s experience
in determining claims suggests that the
definition of injury should be revised to
make clear current agency
interpretations that may not be obvious
or intuitive to claimants and other
stakeholders. The current definition of
injury does not reflect the agency’s
interpretation that an increase in the
severity of an officer’s pre-existing
physical wound or condition—
regardless of the cause of the preexisting wound or condition—is an
injury under the PSOB Act so long as
the increase in severity is itself the
direct and proximate result of a line of
duty injury. The proposed rule would
provide that such aggravation of preexisting conditions would constitute an
injury. In stating that certain aggravation
of a pre-existing injury may constitute
an injury for purposes of the PSOB
Program, the proposed rule clarifies that
a pre-existing injury is not automatically
excluded from consideration as the
substantial factor in an officer’s death or
permanent and total disability.
Based on the claims it has received,
the agency believes that the regulatory
definition of ‘‘injury’’ together with the
separate definition of stress or strain,
have proven very challenging for
claimants to understand and apply,
particularly to fatal heart attacks,
8 ‘‘Rhabdomyolysis is the breakdown of muscle
tissue that leads to the release of muscle fiber
contents into the blood. These substances are
harmful to the kidney and often cause kidney
damage.’’ It may be caused by, among other things,
‘‘severe exertion, such as marathon running or
calisthenics.’’ National Institutes of Health
(MedlinePlus), Rhabdomyolysis, https://
www.nlm.nih.gov/medlineplus/ency/article/
000473.htm (accessed Feb. 11, 2016).
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strokes, and vascular ruptures. The
agency believes that this is in part due
to the absence from the current
definitions the agency’s longstanding
interpretation that heart attacks and
strokes, absent an external force or
factor shown to have directly and
proximately caused such condition, are
not injuries. The agency’s interpretation
dates back to the first PSOB regulations
published in 1977, 42 FR 23252, 23260
(May 6, 1977), and has been upheld in
a series of court decisions.9
Heart attacks, strokes, and vascular
ruptures are eligible for death benefits
under the presumption created by the
Hometown Heroes Survivors’ Benefits
Act of 2003 (Pub. L. 108–182)
(Hometown Heroes Act) and amended
by the Dale Long Public Safety Officers’
Benefits Improvement Act of 2012 (Pub.
L. 112–239). Together, these
amendments have established a
rebuttable presumption that a heart
attack, stroke, or vascular rupture
satisfying the requirements of 42 U.S.C.
3796(k) constitutes a personal injury
sustained in the line of duty. Generally
speaking, the presumption is
established in cases where a public
safety officer sustains heart attack,
stroke, or vascular rupture while
engaging in a situation involving
‘‘nonroutine stressful or strenuous
physical [line of duty] . . . activity’’ or
participating in a training exercise
‘‘involving nonroutine stressful or
strenuous physical activity’’ (or within
24 hours of such engagement or
participation) and the heart attack,
stroke, or vascular rupture is the direct
and proximate cause of the officer’s
death. Though not directly related to the
definition of injury under § 32.3, in an
NPRM published in the Federal
Register on July 15, 2016, 81 FR 46019,
the agency proposed regulations that
would define the circumstances under
which the presumption is rebutted in
amended 42 U.S.C. 3796(k).
To make the agency’s interpretation
clear, the proposed rule would
eliminate the separate definition of
stress or strain and would incorporate
those conditions excluded by that
definition directly into the definition of
injury. In so doing, the proposed rule
9 See e.g., Juneau v. Dept. of Justice, 583 F.3d 777,
782–83 (Fed. Cir. 2009) (holding that an officer’s
heart attack following a foot chase of shoplifting
suspects did not warrant payment of PSOB death
benefits as the officer’s traumatic condition, i.e., a
heart attack, was not caused by an injury as defined
in PSOB regulations); see also Smykowski v. United
States, 647 F.2d 1103, 1106 (Ct. Cl. 1981)
(concluding that an officer’s physical struggle with
a suspect immediately preceding a fatal heart
attack, although different from stress or strain and
cognizable itself as a traumatic event, was not an
injury under the PSOB Act.)
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would identify specific types of
conditions excluded from the definition
of injury including: ‘‘any chronic,
cumulative, or progressive condition of
the body,’’ and ‘‘cardiovascular
disease.’’ To clarify for claimants and
the general public that, under 42 U.S.C.
3796(k), certain heart attacks, strokes,
and vascular ruptures may be presumed
to be a personal injury, the proposed
rule would so state.
Similarly, the current definition of
injury does not, by itself, clearly reflect
the agency’s longstanding interpretation
that mental health conditions including
post-traumatic stress disorder (PTSD) or
anxiety do not constitute an injury, and
therefore, the basis of a disability, under
the PSOB Act. By way of background,
the Law Enforcement Assistance
Administration (LEAA) defined the term
‘‘traumatic injury’’ in 1977 as excluding
‘‘stress and strain.’’ Referring to the
legislative history of the PSOB Act, and,
in particular, the definition of ‘‘personal
injury’’ in the House Judiciary
Committee Reports, the LEAA stated
that ‘‘[d]eaths caused by traumatic
injuries do not therefore include deaths
directly attributable to exertion or stress
encountered in the performance of
duty.’’ 10 Further supporting LEAA’s
original interpretation, a 2001 case in
the United States Court of Appeals for
the Federal Circuit found permissible
BJA’s regulatory definition ‘‘exclud[ing]
from the definition of ‘traumatic injury’
stress and strain.’’ 11 In explaining its
conclusion, the court stated that ‘‘the
legislative history [of the PSOB Act]
points away from an intent on the part
of Congress to have the statutory term
‘personal injury’ include mental
strain.’’ 12 More recently, in a House
Report describing, among other things,
amendments to the statute authorizing
payment of disability benefits, 42 U.S.C.
3796(b), the Committee on the Judiciary
stated that ‘‘a disability benefit is
payable only when the Department
determines that a public safety officer
has sustained a line of duty injury
whose direct physical consequences
permanently prevent the performance of
any gainful work.13
To better communicate the agency’s
longstanding interpretation regarding
the ineligibility of mental health
conditions for PSOB Program benefits,
the revised definition of injury would
expressly provide that mental health
10 42
FR 23252, 23260, May 6, 1977.
v. United States 258 F.3d 1356, 1363
(Fed. Cir. 2001).
12 Id. at 1364.
13 H.R. Rep. No. 112–548 at 13 (2012) (emphasis
added).
11 Yanco
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conditions are excluded from
consideration as an ‘‘injury.’’
• Injury date: Under current
regulations defining ‘‘injury date,’’ such
date generally means the time of the line
of duty injury that directly and
proximately resulted in the death or
permanent and total disability of the
public safety officer. Current regulations
do not define when an injury occurs for
purposes of 42 U.S.C. 3796(k) for
purposes other than ‘‘determining
beneficiaries under the Act.’’ As the
‘‘injury date’’ in a claim based on 42
U.S.C. 3796(k) is relevant for other
purposes (e.g., determining voluntary
intoxication), the proposed rule would
define injury date in such a claim. The
proposed rule would provide that, for
all purposes relating to 42 U.S.C.
3796(k), injury date means the time of
the officer’s qualifying engagement or
participation referred to in the Act at 42
U.S.C. 3796(k)(1)).
• Involvement: Under current
regulations, a law enforcement officer
trainee, even while participating in an
official training program that is
mandatory for his or her certification or
employment as a law enforcement
officer (e.g., firearms training), is
generally not a ‘‘public safety officer’’
for purposes of the PSOB Act. This is
because the regulatory definition of
‘‘involvement’’ requires that a law
enforcement officer possess, among
other things, the unrestricted ‘‘legal
authority and -responsibility’’ to arrest
or apprehend . . . persons for violations
of criminal law to qualify as a ‘‘public
safety officer.’’ As a result, such trainees
are ineligible except in the unusual
circumstances in which a trainee has
the legal authority and responsibility to
act as a law enforcement officer without
limitation at the time of the injury.14
As demonstrated by the claims for
death benefits submitted on behalf of
trainees, the hazards faced while
participating in training mandatory to
be serve a public agency as a law
enforcement officer (e.g., firearms
training, unarmed self-defense, or
physical training) are similar to what
may be encountered in serving the
public. Accordingly, a limited
expansion of the current rule to include
such circumstances is warranted.
The proposed rule expands the
definition of ‘‘involvement’’ to cover as
14 As a result of the current definition of
‘‘involvement,’’ a necessary element of the
definition of ‘‘law enforcement officer,’’ a trainee
police officer who is killed or permanently disabled
while participating in an official training program
of his or her public agency, that is mandatory for
the trainee’s certification or employment as a police
officer with that particular public agency, is
ineligible for benefits under the PSOB Act by virtue
of not qualifying as a ‘‘public safety officer.’’
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a ‘‘law enforcement officer’’ any
individual who participates in an
official training program of the
individual’s public agency that is
mandatory for that individual’s
employment or certification in certain
law enforcement positions such as a
police officer, corrections officer,
probation officer, or equivalent. The
proposed rule would permit payment on
behalf of any individual who died or to
any who was permanently and totally
disabled as the direct and proximate
result of an injury sustained while
participating in such mandatory
training.
• Line of duty activity or action: The
proposed rule would provide that
certain activities or actions of a law
enforcement officer or firefighter,
performed under emergency
circumstances and necessary to save or
protect human life, in any jurisdiction,
would be deemed to be line of duty
activity or action for purposes of the
PSOB Act.
Under 42 U.S.C. 3796(a) and (b), the
agency pays death or disability benefits
when it determines that a public safety
officer has died or become permanently
and totally disabled as ‘‘the direct and
proximate result of a personal injury
sustained in the line of duty.’’ Under
current regulations, a public safety
officer’s action or activity and resulting
injury is ‘‘in the line of duty’’ only if it
is an action or activity that the officer
is legally authorized or obligated to
perform as a public safety officer and
the officer’s public agency recognizes it
as such.15 Where an officer acts outside
his or jurisdiction, even if acting in an
emergency to save human life, such
actions are generally outside the legal
authority of the officer’s public agency
and, as a result, excluded from PSOB
Act coverage as not ‘‘in the line of
duty.’’
As guardians of the public, public
safety officers are trained to and called
upon to engage in extraordinary acts of
self-sacrifice and bravery to save the
lives of others. However, these acts may
not always occur within an officer’s
jurisdiction. The regulations which
require that an officer’s public agency
affirm, or at least, not deny, that a
public safety officer had the legal
authority and responsibility to perform
such actions, as currently written, do
not take into account the extraordinary
situations which require an urgent and
immediate response and do not afford a
public safety officer an opportunity to
seek approval or authorization to act.
15 See 28 CFR 32.3 (defining Line of duty activity
or action).
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Within the context of the PSOB
Program, BJA recognizes that public
safety officers, by virtue of their
training, expertise, and experience, are
often compelled to act where human life
is endangered. Moreover, a public safety
officer’s training and experience make
them uniquely qualified to intervene to
save human life. Accordingly, BJA
believes that the actions of public safety
officers, i.e., firefighters and law
enforcement officers, in these
extraordinary and limited circumstances
should be covered by the PSOB
Program.
As the PSOB Act does not define
‘‘line of duty’’ and expressly delegated
to the agency in 42 U.S.C. 3796(c) the
authority to promulgate implementing
regulations, the agency may interpret
the term ‘‘line of duty’’ in regulations so
long as the interpretation is not
arbitrary, capricious, or contrary to
law.16 The agency’s proposed regulatory
interpretation recognizes, consistent
with the language of 42 U.S.C. 3796(a)
and (b), that ‘‘[t]he word ‘duty’ connotes
a legal or moral obligation’’ and that
‘‘[i]n reference to public safety officers,
‘duty’ refers to the obligation to protect
the public in their capacity as
firefighters or police officers.’’ 17 The
proposed rule recognizes the connection
between an injury sustained by an
officer in the course of performing a
lifesaving act, even an officer who may
be off-duty and outside of his or her
jurisdiction, and the officer’s duty as a
public safety officer to protect the
public. Moreover, the proposed rule is
consistent with existing provisions that
deem an officer’s injury to be in the line
of duty even in circumstances when the
officer may have been off duty and
without regard to the officer’s location—
when ‘‘such injury resulted from the
injured party’s status as a public safety
officer.’’ 18 Other provisions of federal
law similarly recognize public safety
officers’ special role by granting rights
beyond those enjoyed by the public at
16 See Hawkins v. United States, 469 F.3d 993,
1004 (Fed. Cir. 2006) (providing that, as Congress
did not define line of duty in the PSOB Act, ‘‘the
BJA’s regulatory interpretation of ‘line of duty’ . . .
must be upheld unless it is ‘‘arbitrary, capricious,
or manifestly contrary to the statute’’) (other
citation omitted). Cf. Davis v. United States, 50
Fed.Cl. 192, 200 (2001) (‘‘Congress has spoken on
the issue of ‘line of duty’ and its scope. A public
safety officer is killed in the ‘line of duty’ when his
or her death results from the performance of any
duty required by law or terms of employment or as
a consequence of his or her identity as a safety
officer.’’).
17 Davis v. United States, 50 Fed.Cl. 192, 207
(2001).
18 See 28 CFR 32.3 (defining Line of duty injury).
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large 19 and recognizing that local public
safety officers often serve the public in
areas other than the officer’s immediate
jurisdiction.20 Finally, in recognizing
and covering the risks faced by public
safety officers in carrying out their
obligation to protect the public, the
limited expansion in the proposed rule
is also consistent with one of the
purposes of the PSOB Act, to recruit and
retain public safety officers.
The proposed rule would add to the
definition of ‘‘line of duty action or
activity’’ a narrow exception that would
deem the extraordinary acts of a
firefighter or law enforcement officer to
save a human life as ‘‘in the line of
duty.’’ To maintain the integrity and
limited nature of the exception, such
acts would be limited to those
circumstances in which (1) the officer’s
actions constituted public safety
activity, (2) the officer’s actions were
performed in the course of responding
to an emergency situation requiring
prompt actions to save human life, (3)
the officer did not create the emergency
situation to which he or she responded,
(4) the human life the officer attempted
to save or saved was other than that of
the officer, and (5) the officer’s acts were
not contrary to the law of the
jurisdiction in which performed.
Providing a narrowly drawn
exception to the definition of line of
duty is consistent with the purpose of
the PSOB Act to extend coverage to
firefighters and law enforcement officers
who sacrifice their own their lives to
save the life of others, or who are
catastrophically injured while doing do.
The proposed rule will further prevent
the anomaly of such a public safety
officer being recognized or honored
posthumously for extraordinary acts of
heroism through BJA programs such as
the Public Safety Officer Medal of
Valor 21 while at the same time being
denied, or having their family denied,
PSOB benefits because of narrowly
drawn eligibility criteria do not take
19 See, e.g., Law Enforcement Officers Safety Act
of 2004, Public Law 108–277, 118 Stat. 865,
codified at 18 U.S.C. 926B, 926C (granting
‘‘qualified law enforcement officers’’ the right to
carry concealed weapons across state lines,
notwithstanding provisions of state law prohibiting
or limiting concealed weapons).
20 See, e.g., 5 U.S.C. 8191 (authorizing federal
workers’ compensation benefits to local law
enforcement officers injured while pursuing or
apprehending persons sought for crimes against the
United States or material witnesses for federal
prosecutions).
21 Public Law 107–12, as amended, established
the Public Safety Officer Medal of Valor, which is
awarded by the President, in the name of Congress,
to public safety officers for ‘‘extraordinary valor
above and beyond the call of duty.’’
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into account these extraordinary
situations.
As provided in sec. 1086 of Public
Law 112–239, the Dale Long Act
amended the PSOB Act by adding a new
provision defining as a public safety
officer those members of a rescue squad
or ambulance crew who, as authorized,
are engaging in rescue activity or
providing emergency medical
services.22 Notably, the amendment
removed the requirement that an
individual member be a ‘‘public
employee’’ and expanded membership
to ‘‘officially recognized or designated
employee or volunteer member[s]’’ of
public agencies as well as those
employee or volunteer members of
certain ‘‘nonprofit entit[ies] serving the
public.’’
Under the proposed rule, the ‘‘line of
duty activity or action’’ definition
would reflect the Dale Long Act’s
expansion of PSOB Program coverage to
employee or volunteer members of
ambulance crews and rescue squads
operated by certain nonprofit entities
serving the public. The proposed rule
would also implement the reduced
scope of PSOB Program coverage in 42
U.S.C. 3796b(9)(D) for all employee and
volunteer members of public agency and
nonprofit entity ambulance squads and
rescue crews based on statutory
language limiting public safety officer
status to those circumstances in which
a member of an ambulance crew or
rescue squad is actually engaging in
rescue activity or providing emergency
medical services.23
• Line of duty injury: Under current
regulations, an injury is sustained in the
line of duty if it was suffered during
performance of a ‘‘line of duty activity
or a line of duty action’’ or ‘‘authorized
commuting.’’ 24 In such circumstances,
it is the nature of the officer’s actions
that determines whether an injury is ‘‘in
the line of duty’’ and therefore eligible
for benefits. Existing PSOB regulations
provide an exception to this general
principle in that an injury is deemed to
be in the line of duty if clear and
convincing evidence demonstrates that
the injury resulted from a public safety
officer’s status as a public safety officer.
Under the current rule, it is the actions
and motivation of the assailant that
22 42
U.S.C. 3796b(9)(D).
the statutory language of the 2013
amendment limits the scope of coverage to
circumstances in which the rescue squad or
ambulance crew member is engaging in rescue
activity or the provision of emergency medical
services ‘‘as authorized or licensed by law and by
the applicable agency or entity,’’ OJP is unable to
establish in regulations an exception for actions
taken to save human life outside the member’s
jurisdiction.
24 28 CFR 32.3 (defining Line of duty injury).
23 As
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determine whether an injury is in the
line of duty and eligible for benefits;
consequently, every injury inflicted
upon an off-duty public safety officer is
not automatically considered to be in
the line of duty. Rather, it must be
shown that the motivation for injuring
the officer was the officer’s status as a
public safety officer as opposed to a
personal dispute or other event
unrelated to the officer’s status as a
public safety officer.
The agency’s experience is that this
provision, although appropriately
narrow, has proved particularly
burdensome for claimants in those
claims in which both the officer and the
assailant are deceased and there is little
or no evidence as to the motivation for
injuring the officer. Adding to a
claimant’s challenges in establishing a
line of duty injury in such claims, the
current regulation also requires that
such injury must be established by clear
and convincing evidence rather than the
standard of proof of ‘‘more likely than
not’’ applicable to nearly all other
determinations in the PSOB Program.
The agency believes that two minor
changes to the current regulation would
enable claimants to establish eligibility
in such claims and maintain the
necessarily limited nature of the
provision.
The proposed rule would change from
‘‘convincing’’ to ‘‘more likely than not’’
the standard of proof for establishing
that an officer was injured due to the
officer’s status as a public safety officer.
In doing so, the proposed rule would
address those situations in which the
only evidence of the assailant’s intent to
injure the officer is circumstantial. As
an assailant’s intent to injure an officer
on account of the officer’s status is often
intertwined with or manifested in an
intent to retaliate against an officer for
actions taken in the line of duty by the
officer injured or other public safety
officers, the proposed rule would also
clarify that injury sustained by a public
safety officer in retaliation for line of
duty actions or activities is a valid basis
for establishing line of duty injury as a
result of an officer’s status.
• Official capacity: In addition to the
requirement in 42 U.S.C. 3796b(9)(A)
and implementing regulations that an
individual must possess the
qualifications applicable for the
particular category of officer to establish
public safety officer status, the evidence
must also establish that the individual
law enforcement officer and firefighter
was serving a ‘‘public agency in an
official capacity’’ at the time of injury.
Public agency is defined in 42 U.S.C.
3796b(8) and generally refers to a unit
of government at the federal, state, or
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local level, subordinate entitles of such
governments including a ‘‘department’’
or ‘‘agency,’’ or an instrumentality of
any of the aforementioned entities
‘‘Official capacity’’ is not defined in the
PSOB Act; however, the agency has
exercised its regulatory authority to
define it in 28 CFR 32.3 as based on two
criteria. First, an individual must be
officially acknowledged by the agency
to be functionally within or part of the
agency; an individual’s status as a
contractor, by itself, does not establish
that an individual is functionally within
a public agency. Second, the public
agency must accept legal responsibility
for the acts and omissions of the
individual.
Under these existing definitions, an
otherwise qualified firefighter or law
enforcement officer who is recognized
by his or her agency as functionally
within or part of the agency, but acts in
emergency circumstances to save
human life outside his or her agency’s
jurisdiction or where he or she is
otherwise not obligated to act, will
generally not be found to be serving a
public agency in an official capacity.
This is because the firefighter’s or law
enforcement officer’s acts and omissions
in such circumstances will generally not
be recognized by his or her own public
agency as legally those of the agency.
As discussed in the analysis of the
proposed revision to the ‘‘line of duty’’
regulation, it is not uncommon for
public safety officers to respond to
emergencies regardless of whether the
emergency is in their jurisdiction. The
PSOB regulations which require that a
public agency affirm, or at least, not
deny, that a public safety officer’s acts
or omissions while acting outside the
officer’s jurisdiction were legally those
of the public agency, as currently
written, do not take into account these
extraordinary situations which require
an urgent and immediate response and
do not afford a public agency the
opportunity to determine whether it
will affirm, or at least not deny legal
responsibility for an officer’s acts or
omissions while so acting.
Within the context of the PSOB
Program, BJA recognizes that public
safety officers, by virtue of their
training, expertise, and experience, are
often compelled to act where human life
is endangered. Moreover, a public safety
officer’s training and experience make
them uniquely qualified to intervene to
save human life. Accordingly, BJA
believes that the actions of public safety
officers, i.e., firefighters and law
enforcement officers, in these
extraordinary and limited circumstances
should be covered by the PSOB
Program.
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As the PSOB Act did not define
‘‘official capacity’’ as to address whether
an officer’s off-duty actions could satisfy
such requirement and expressly
delegated to the agency in 42 U.S.C.
3796(c) the authority to promulgate
implementing regulations, the agency
may interpret the term ‘‘official
capacity’’ in regulations so long as the
interpretation is not arbitrary,
capricious, or contrary to law.25
Moreover, the proposed rule is
consistent with existing provisions that
deem an officer’s injury to be in the line
of duty without regard as to whether the
officer was functioning in an official
capacity at the time of his or her
injury—when such injury resulted from
the injured party’s status as a public
safety officer.26
As mentioned with regard to the
proposed changes to ‘‘line of duty,’’
other provisions of federal law similarly
recognize public safety officers’ special
role by granting rights beyond those
enjoyed by the public at large 27 and
recognizing that local public safety
officers often serve the public outside
the officer’s immediate jurisdiction.28
The proposed rule is consistent with the
recognition afforded by those
provisions. Finally, in recognizing and
covering the risks faced by public safety
officers in carrying out their obligation
to protect the public, the limited
expansion in the proposed rule is also
consistent with one of the purposes of
the PSOB Act: To recruit and retain
public safety officers.
The proposed rule would add to the
definition of ‘‘official capacity’’ a
narrow exception that would deem the
extraordinary acts of a firefighter or law
enforcement officer to save a human life
as ‘‘serving a public agency in an official
capacity.’’ To maintain the integrity and
limited nature of the exception, such
acts would be limited to those
determined to be ‘‘line of duty activity
or action’’ under the proposed exception
to that definition. This proposed change
is intended to work in conjunction with
25 See Groff v. United States, 493 F.3d 1343, 1353
(Fed. Cir. 2007) (‘‘Congress did not further define
what it means to serve ‘in an official capacity,’
leaving the statute silent as to whether contract
pilots fall within its ambit.’’).
26 See 28 CFR 32.3 (defining Line of duty injury).
27 See, e.g., Law Enforcement Officers Safety Act
of 2004, Public Law 108–277, 118 Stat. 865,
codified at 18 U.S.C. 926B, 926C (granting
‘‘qualified law enforcement officers’’ the right to
carry concealed weapons across state lines,
notwithstanding provisions of state law prohibiting
or limiting concealed weapons).
28 See, e.g., 5 U.S.C. 8191 (granting federal
workers’ compensation benefits to local law
enforcement officers injured while pursuing or
apprehending persons sought for crimes against the
United States or material witnesses for federal
prosecutions).
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the proposed change regarding line of
duty.
• Officially recognized or designated
public employee member of a squad or
crew: As provided in sec. 1086 of Public
Law 112–239, the proposed rule would
revise the existing definition to cover
members of ambulance squads and
rescue crews who are employed by or
volunteer for certain nonprofit entities
serving the public.
• On-site hazard management: As
currently defined in 28 CFR 32.3, the
term ‘‘fire suppression’’ includes ‘‘onsite hazard evaluation’’ but the latter
term is not defined and does not include
the more comprehensive task, ‘‘on-site
hazard management.’’ To account for
this necessary component of firefighter
work, the proposed rule would define
on-site hazard management as including
actions taken to provide scene security
or direct traffic in support of a fire,
rescue, or law enforcement emergency.
• Parent-child relationship: As
defined in 28 CFR 32.3, the terms
‘‘adopted child’’ and ‘‘stepchild’’
require a PSOB determining official to
determine whether a public safety
officer had a ‘‘parent-child relationship’’
with a child. The current definition of
parent-child relationship, i.e., a
relationship between a public safety
officer and another individual where the
officer acts as a parent, requires that the
relationship be shown by convincing
evidence. This higher standard of proof
has delayed the processing of claims
involving claimants seeking benefits on
behalf of (or as) the stepchild or adopted
child of a deceased officer. In nearly all
such claims, additional evidence sought
to meet the higher standard has
confirmed the initial assessment of the
determining official.
As the higher standard proof has been
shown to add little certainty in what is
inherently a subjective determination
about the existence of a relationship that
is known best by the persons directly
involved in it, the agency proposes to
revise it. The proposed rule would
revise the definition parent-child
relationship by changing the standard of
proof from ‘‘convincing evidence’’ to the
standard of ‘‘more likely than not’’
applicable in nearly all other PSOB
Program determinations.
• PSOB Counsel: In 2013, the
Attorney General directed that the PSOB
claims process be streamlined through
the consolidation of legal and other
claims functions within BJA. Apart from
a final rule revising the definition of
‘‘PSOB Office’’ that was published in
the Federal Register in 2013, 78 FR
29233 (May 20, 2013), the agency has
published no regulations identifying the
entity or individual providing legal
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review within BJA. In order to make
more transparent the legal review
process associated with PSOB claims,
the proposed rule would identify PSOB
Counsel as the legal staff in BJA
responsible for performing legal review
of claims for PSOB Program benefits and
providing PSOB determining officials
with legal advice in PSOB Program
matters.
• Public employee member of a squad
or crew: The agency proposes to remove
this definition as a recent amendment to
42 U.S.C. 3796b(7) in sec. 1086 of Public
Law 112–239 removed the ‘‘public
employee’’ requirement from the
definition of ‘‘member of a rescue squad
or ambulance crew.’’
• Stress or strain: As discussed in the
proposed revision of the definition of
‘‘injury,’’ the agency’s experience is that
the public has found the definition of
stress or strain very difficult to
understand and apply. For the reasons
provided, the proposed rule would
eliminate this definition in favor of
incorporating the specific conditions
that are excluded into the definition of
injury. In so doing, the proposed rule
would make clear those conditions that
are excluded from the definition of
injury, streamline the processing of
claims, and help to reduce the number
of claims filed that, as a matter of law,
cannot be paid due to a lack of injury.
• Suppression of fire: As currently
defined, the term refers to the work and
activities connected with extinguishing
or containing a fire, beginning with its
discovery, and includes extinguishment,
physical prevention, or containment of
fire, including on-site hazard
evaluation. ‘‘On-site hazard evaluation’’
is logically part of a larger task, ‘‘on-site
hazard management.’’ The current
definition does not take into account the
individual members of fire departments
that are deployed to provide on-site
hazard management activities including
traffic incident management at
emergency scenes. These individuals,
often referred to as ‘‘fire police,’’ are
officially designated members of a fire
department, receive formal training, and
perform operational duties that, in the
absence of fire police, would be
required to be performed by another
member of the department.
When an officially designated
member has the legal authority and
responsibility to qualify as a firefighter
or law enforcement officer as defined in
28 CFR 32.3, and is otherwise serving a
public agency in an official capacity, the
individual qualifies as a public safety
officer. However, in the majority of
claims involving personnel whose
specialized duties are limited to traffic
incident management and other on-site
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hazard management tasks, the
individual lacks the legal authority and
responsibility to either engage in the
suppression of fire (as currently
defined), or arrest persons alleged to
have violated the criminal laws, which
precludes the individual from
qualifying as a public safety officer as a
firefighter or law enforcement officer.
The agency’s experience is that, apart
from engaging in actual fire
suppression, personnel providing onsite hazard management are at risk for
many of the same hazards encountered
at the scene of a fire as do personnel
who engage directly in the suppression
of fire as firefighters. Fire police and
similar fire department personnel are
exposed to the hazards of the emergency
response, the hazardous materials and
toxins released into the air at the scene
of the fire, as well as the hazards posed
by their traffic control duties that kill or
disable firefighters.29 The proposed rule
would expand the type of activities
covered as fire suppression to include
on-site hazard management, which
would be addressed separately in a new
definition in 28 CFR 32.3 and would
include duties such as providing scene
security and directing traffic in response
to a fire emergency.
• Voluntary intoxication at the time
of the officer’s fatal or catastrophic
injury: Under 42 U.S.C. 3796a(2), the
agency is prohibited from paying
benefits ‘‘if the public safety officer was
voluntarily intoxicated at the time of his
fatal or catastrophic injury.’’ Under the
current regulation implementing 42
U.S.C. 3796a(2), a public safety officer is
considered to be voluntarily intoxicated
when a drug test establishes in the body
of a public safety officer, the presence,
in any amount, of a drug listed in the
Schedules of Controlled Substances. See
e.g., 21 U.S.C. 812; 21 CFR, part 1308.
In the overwhelming majority of claims,
the officer is found to have been taking
a prescribed drug consistent with such
prescription and not intoxicated at the
time of fatal or catastrophic injury.
However, BJA and claimants expend
significant resources in determining that
this limitation is not implicated, which
delays the processing of otherwise valid
claims. To enable BJA to focus its
inquiry on those drugs used as
intoxicants and those that generally
produce intoxication, the proposed rule
29 Between 1996 and 2010, 253 firefighters were
killed in vehicle collisions responding to and
returning from incidents; 70 more were killed after
being struck by vehicles at the scene of
emergencies. U.S. Fire Administration, Traffic
Incident Management Systems, FA–330/March
2012, 4–5, https://www.usfa.fema.gov/downloads/
pdf/publications/fa_330.pdf (accessed Feb. 26,
2016).
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would makes several substantive
changes to the existing rule pertaining
to how voluntary intoxication is
determined with regards to drugs.
The proposed rule would, among
other things, revise existing language to
provide that voluntary intoxication is
not automatically established when the
presence of drugs in the body of the
public safety officer is generally within
prescribed limits and the public safety
officer was not acting in an intoxicated
manner immediately prior to the injury.
To account for circumstances under
which there is no witness available to
attest as to whether an officer was acting
in an intoxicated manner immediately
before a fatal injury, the proposed rule
would clarify, consistent with BJA’s
current interpretation, that voluntary
intoxication is not implicated when
convincing evidence establishes that the
drug would not produce intoxication in
the amount present in the officer’s body.
• Volunteer fire department: Under
42 U.S.C. 3796b(9)(A), to be eligible for
benefits as a public safety officer, a
firefighter must be serving ‘‘a public
agency in an official capacity.’’ Under
the current definition of ‘‘official
capacity’’ in 28 CFR 32.3, an otherwise
qualified volunteer firefighter who is an
officially recognized or designated
member of a legally established
volunteer fire department (VFD) cannot
be considered to be serving a public
agency in an official capacity and
therefore cannot be a public safety
officer, unless a public agency
recognizes (or, at a minimum, does not
deny) that the volunteer firefighter’s acts
and omissions are legally those of the
public agency.
BJA’s experience is that in most PSOB
claims involving volunteer firefighters,
the ‘‘public agency’’ and ‘‘official
capacity’’ requirements for the
individual volunteer firefighter are
satisfied when the VFD establishes that
it is an ‘‘instrumentality’’ of a public
agency under 28 CFR 32.3 (defining
Instrumentality) and that, as such, the
public agency is legally responsible for
the acts and omissions of its members.
In a relatively recent trend, the agency
has received claims in which a VFD
does not fully qualify as an
instrumentality despite providing fire
protection to a public agency as a
noncommercial, non-profit corporation.
In nearly all claims in which a VFD
does not qualify as an instrumentality,
it is because the public agency denies
legal responsibility for the acts and
omissions of the VFD. Such denial is
often manifested in a contract or similar
agreement for services under which the
public agency expressly states that it is
not responsible for the acts or omissions
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of the VFD. Under such contracts, the
public agency may require the VFD to
obtain its own insurance (even as the
public agency provides the VFD with
funding for operations) and indemnify
and hold harmless the public agency for
its acts and omissions or those of its
members. Such contracts may also refer
to the volunteer firefighter members of
such VFDs as ‘‘independent
contractors’’ of the public agency
despite the fact that the volunteer
firefighters are officially recognized
members of the VFD, itself a noncommercial, nonprofit corporation.
Since the enactment of the PSOB Act
in 1976 and before the agency defined
in regulations the terms ‘‘official
capacity’’ and ‘‘instrumentality,’’
qualified members of legally organized
VFDs have generally been considered to
be public safety officers. To preserve
this eligibility and address the trend of
shifting liability, the proposed rule
provides that a VFD qualifies as an
instrumentality as defined in 28 CFR
part 32 if it is legally established as a
public entity or nonprofit entity serving
the public, and it is legally established
solely for the purpose of providing fire
protection and related services on a
noncommercial basis to or on behalf of
a public agency or agencies. The
proposed rule also provides that to
qualify as an instrumentality under this
provision, a VFD must provide fire
protection to members of the public
without preference or subscription fees.
The proposed rule would preserve the
existing PSOB Act coverage of volunteer
firefighters serving the public in
noncommercial, nonprofit VFDs and
leave undisturbed the agency’s
longstanding interpretation that, as a
general rule, commercial entities cannot
establish status as a public agency or as
an instrumentality of a public agency.
Section 32.5 Evidence
Under current § 32.5(a), claimants
have ‘‘the burden of persuasion as to all
material issues of fact, and by the
standard of proof of ‘more likely than
not.’ ’’ The proposed rule would retain
this standard of proof, and simplify the
current description of claimants’ burden
by providing that claimants are
responsible for establishing all elements
of eligibility for the benefit they seek.
The proposed rule would replace the
standard for evidentiary submissions in
current § 32.5(c), Federal Rules of
Evidence 301, 401, 402, 602–604, 701–
704, 901–903, and 1001–1007, with a
general standard for admissibility
similar to that used in other federal
benefit programs. See e.g., 20 CFR
10.115 (providing that the evidence
submitted in a claim for Office of
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Workers’ Compensation benefits ‘‘must
be reliable, probative and substantial’’).
Although the Federal Rules of Evidence
provide a precise set of rules for
evaluating evidentiary submissions in
litigation, BJA believes that a less formal
and legalistic set of standards is better
suited for an administrative, nonadversarial claims process in which
most claimants are unrepresented. The
proposed rule provides that a claimant’s
evidence must be worthy of belief
(credible), tending to prove an issue
(probative), and actually existing
(substantial). The proposed rule would
also provide that, when deemed
necessary by a PSOB determining
official, a claimant must produce
original documents or other copies
verified as true and exact by a custodian
of such records.
Under current 28 CFR 32.5(i), BJA
considers a public safety officer’s
response to a call to provide emergency
service ‘‘prima facie evidence’’ that the
activity was ‘‘nonroutine’’ for purposes
of applying the presumption in 42
U.S.C. 3696(k). The agency’s experience,
which is substantiated by research
showing that a public safety officer’s
sympathetic nervous system is activated
with his or her receipt of an alarm, is
that a public safety officer’s response to
an emergency call to perform public
safety activity, which generally begins
when an officer receives such call, also
constitutes evidence of the response’s
physically stressful character.
Accordingly, the proposed rule provides
that a public safety officer’s response to
a call for emergency service shall also
constitute prima facie evidence that the
response was physically stressful for
purposes of 42 U.S.C. 3796(k).
As stated, generally, the evidence of
record in a claim must establish
material issues of fact to the standard of
proof of ‘‘more likely than not.’’
However, the unique circumstances of
public safety work results in PSOB
claims in which many of the incidents
or injuries that are the basis of the claim
may be without numerous witnesses or
extensive documentation. To address
the evidentiary challenges posed by the
hazards and risks of public safety
activity and the unpredictable nature of
such work, the agency proposes a
limited exception to this standard of
proof by adding add a new § 32.5(k) that
would address situations in which the
proof on either side of an issue is equal.
The proposed rule would provide that
where the determining official
determines the record evidence to be
equivalent regarding a fact material to
whether or not the circumstances of the
death or injury of the officer warrant
coverage as a death or permanent and
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57357
total disability incurred in the line of
duty under the Act, the determining
official shall resolve the matter in favor
of the claimant. The proposed rule
makes clear that the absence of evidence
in support of a particular fact does not
establish that the evidence is equivalent
and that the provision is not a substitute
for actual evidence establishing or
disproving a particular fact.
The proposed rule would also replace
the prerequisite certification regulations
at 28 CFR 32.15 and 32.25 with a single
provision at § 32.5(l) authorizing PSOB
determining officials to require from a
claimant any proof necessary to
establish facts of eligibility essential for
death, disability, or education claims
under the PSOB Act including proof of
birth, death, disability, earnings,
education, employment, and injury.
Under the current rule, without a waiver
from the BJA Director for good cause
shown, BJA may not approve any death
or disability claim unless the public
safety officer’s agency produces a
certification as defined in § 32.3 and
specific types of supporting
documentation. For example, even in a
claim for PSOB death benefits in which
the public agency has paid death
benefits to the public safety officer’s
survivors, BJA may not pay benefits
without a certification (or, as
appropriate a waiver for good cause
shown) from the public safety officer’s
agency that the officer died as ‘‘a direct
and proximate result of a line of duty
injury’’, or that the public safety
officer’s survivors have received ‘‘the
maximum death benefits legally payable
by the agency’’ to similarly situated
public safety officers.
BJA’s experience is that the
prerequisite certification regulations
impose an extremely high level of
precision on the claims process, often
require the public safety officer’s agency
to make legal and medical conclusions
they are not qualified to make, and
produce delays in adjudication. The
better course, and one keeping in line
with other government claims programs
would be to allow claimants and
agencies to provide documents
establishing eligibility from a variety of
sources including but, not limited to,
death certificates, autopsies, toxicology
reports, coroner’s reports, police reports,
investigative reports, workers
compensation determinations, State-law
line of duty death determinations,
insurance policies, newspaper and
media reports, and statements from the
officer’s public agency. Taken together,
such documents are more than adequate
to establish the relevant facts and
circumstances of a public safety officer’s
injury and the eligibility of beneficiary.
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In replacing the prerequisite
certification and waiver requirements
with a process tailored to the facts of
individual claims, the proposed rule
would reduce administrative burden
and improve the efficiency of the
process by reducing delays for
unnecessary documents and or waivers.
In a recent report on the PSOB
Program, the OIG recommended that
BJA implement ‘‘an abandonment
policy that gives claimants adequate
opportunity to provide needed
documentation to support their claims
and ensures that the PSOB Office does
not use its limited resources conducting
outreach on claims, especially those
which claimants do not intend to
pursue.’’ 30 To aid in implementing the
OIG’s finding, OJP proposes to define in
a new § 32.5(m), the circumstances
under which a claim is considered to be
abandoned.
The proposed rule would consolidate
most abandonment provisions in a
single provision. Under the proposed
rule, when a claimant or agency who
does not furnish evidence necessary to
a determination within one year of
BJA’s request, or a claimant fails to
pursue in a timely fashion a
determination on his or her claim,
following appropriate notice BJA will
consider the claim abandoned and take
no further action on the claim unless it
received a complete claim, including
the specific information requested,
within 180 days from notice of
abandonment. Consistent with current
practice, the claim would be considered
as though never filed, and abandonment
would not toll the time periods
remaining for filing. In providing
claimants with a one-year period to
respond to requests for evidence, as well
as a ‘‘grace period’’ in which claimants
may reopen an abandoned claim, the
proposed rule provides adequate time
for claimants to provide documents
supporting their claims while
permitting BJA to dedicate its resources
to those claims that can be decided on
the evidence of record.
Section 32.7—Fees for Representative
Services
Under 42 U.S.C. 3796c, the agency is
authorized to promulgate ‘‘regulations
governing the recognition of agents or
other persons representing claimants.’’
The agency has exercised its regulatory
authority to establish in current § 32.7
provisions governing the circumstances
under which representatives may charge
30 U.S. Dept. of Justice, Office of the Inspector
General, Audit of the Office of Justice Programs’
Processing of Public Safety Officers’ Benefit
Programs Claims, Audit Division 15–21 at 11 (July
7, 2015).
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fees for representative services in a
claim for benefits under the PSOB Act.
Claimants for representative services
provided in connection with a claim for
PSOB Act benefits may not charge fees
for representative services based on a
stipulated, percentage, or contingency
fee recovered and may not charge fees
in excess of the amount permitted under
the Equal Access to Justice Act,
currently $125 per hour. All petitions
seeking authorization to charge fees,
whether contested by the PSOB
claimant-beneficiary or not, are subject
to a review for reasonableness based on
the factors in § 32.7(c)(1)–(8).
Additionally, the current rules do not
address who may provide
representation in PSOB claims, nor do
they address whether non-attorney
representatives may charge fees for
representation.
The agency proposes to revise § 32.7
to limit paid representation to attorneys
and support staff under their direct
supervision, keep fees at a reasonable
level consistent with the purpose of the
program, and improve the processing of
claims involving attorney
representatives. The intent in so doing
is to enable claimants to more easily
obtain qualified representation in claims
for PSOB death or disability benefits.
In conjunction with a proposed
definition of the term ‘‘attorney’’ as a
member in good standing of a State bar,
the proposed rule would limit
authorization to charge fees for
representative services to such
attorneys. The agency views limiting
paid representation to attorneys as a
means of ensuring that individuals
providing paid representation in PSOB
claims are capable of providing
competent representation, are obligated
to provide representation according to
code of professional ethics, and are
subject to oversight and compliance by
an independent licensing body. As nonattorney representatives are not subject
to similar testing, ethical requirements,
and independent monitoring, the agency
proposes to continue to permit them to
provide representation but prohibit such
individuals from charging claimants
fees for representative services.
The proposed rule would permit fees
for representative services to be based
on a fixed fee, hourly rate, a percentage
of benefits recovered, or a combination
of such bases. To enable BJA to
maintain its oversight role regarding
fees, the proposed rule would require
that claimants provide to the PSOB
Office before seeking authorization to
charge fees a copy of any fee agreement
for representative services under the
Act. To keep fees reasonable, the
proposed rule would prohibit fees for
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representative services in excess of 12
percent of the total PSOB death or
disability payment available to a
claimant regardless of how the fee
agreement is structured.31 To expedite
the review of fee petitions, the proposed
rule would also establish a presumption
of reasonableness for representative’s
fees not exceeding 8 percent of the total
PSOB death or disability payment
available to a claimant in a claim
resolved at the PSOB Office level, and
establish a presumption of
reasonableness for representative’s fees
not exceeding 10 percent of the total
PSOB death or disability payment
available to a claimant in a claim
resolved at the Hearing Officer or BJA
Director level. These presumptions of
reasonableness would be rebuttable if an
examination of the factors in § 32.7(c)
established that the fee is unreasonable.
Section 32.9 Complete Application
One of the recommendations of OJP’s
independent BPI review of the PSOB
Program was that, to improve the
efficiency of claims processing, BJA
should require a minimum set of
supporting information before assigning
a claim number and routing the claim
for review to reduce the time
incomplete claims remain unresolved
and to focus BJA resources on those
claimants who need assistance in
submitting an application for benefits.32
Consistent with other government
claims programs, the BPI review
recommended that the PSOB Office shift
its focus from a one-on-one outreach
model to an approach that returns the
responsibilities to the claimant and
agency to gather, organize, and submit
all required prior to filing a PSOB claim,
and being assigned a claim number.
Related to the minimum required
documents concept, for BJA to establish
and implement meaningful timeliness
standards for its processing of claims,
claims must necessarily be complete
and ripe for determination before the
‘‘clock’’ starts on calculating the days
required by BJA to process a claim to
completion.
To improve the efficiency of claims
processing pursuant to the BPI
recommendation, the agency proposes
to add a new § 32.9 defining what
31 By way of example, in a claim for benefits
based on an officer’s death that occurred in FY2014,
the total benefit payable under 42 U.S.C. 3796(a) is
$333,604.68. In a claim involving a surviving
spouse and two children, an attorney representing
the two children would be prohibited from charging
fees in excess of $20,016.28, which represents 12%
of the children’s combined 1⁄2 share of benefits,
$166,892.34.
32 In a sample of claims reviewed, the BPI review
found that an average of 148 days was spent on
outreach in death and disability claims.
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constitutes a ‘‘complete application’’ for
benefits under the PSOB Act and
implementing regulations prescribing
BJA’s obligations when it receives such
an application. BJA’s current practice
when it receives an application for
benefits that lacks the basic required
documents to render a determination is
to assign it a claim number, process it
as a claim from the moment a claim
form is received, and conduct biweekly
outreach efforts to obtain from the
applicant and the officer’s public agency
information required to establish
eligibility for benefits. BJA’s experience
is that it allocates significant resources
to repeatedly prompting applicants for
benefits and public agencies as to what
basic required documents they must
submit to establish eligibility when
BJA’s resources could be reallocated to
processing otherwise complete
applications.
Under the proposed rule, following
publication of a Notice in the Federal
Register consistent with 5 U.S.C.
552(a)(1)(C), the PSOB Office would
maintain and publish on the PSOB
Program Web site a list of basic required
documents that claimants would be
required to file with applications for
PSOB Program death, disability, and
education benefits. These documents
would represent the absolute minimum
documentation BJA would accept before
treating an application as a claim,
devoting resources to processing it. This
documentation, once submitted, would
constitute a ‘‘complete application.’’ By
precluding incomplete applications
from being considered as claims in the
first instance, the proposed rule would
support the OIG and BPI
recommendations and BJA’s efforts to
effectively allocate its resources and
avoid issuing merits-based
determinations denying benefits based
on obviously incomplete applications,
which would simply shift initial
evidentiary development to
determinations by Hearing Officers and
the BJA Director.
The proposed rule provides that when
BJA receives an application for benefits
without the basic required documents
(as indicated on the Web site), BJA will
notify the applicant in writing of the
evidence and information necessary to
complete the application, and advise the
applicant that BJA will not process the
incomplete application as a claim for
benefits until the remainder of the
documents are received. For purposes of
determining whether a claim was timely
filed under proposed 28 CFR 32.12 and
32.22, an applicant’s submission of
either a claim form or report form, i.e.,
a Report of Public Safety Officer’s
Death, Claim for Death Benefits, or
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Report of Public Safety Officers’
Permanent And Total Disability, even
though not constituting a complete
application, would be sufficient to
satisfy the requirement that a claim
must be filed within three years of the
officer’s death or injury. To prevent
applicants from being prejudiced based
on an inability to provide necessary
information, the proposed rule would
provide that an application will not be
considered incomplete if an applicant’s
inability to file basic required
documents was the result of a public
agency’s refusal or inability to provide
the information identified in this
section if the applicant provides to the
PSOB Office written justification for his
or her inability to provide the
information and the justification
demonstrates that such inability to file
evidence is not due to any fault of the
applicant.
Section 32.10
PSOB Counsel
Nothing in the PSOB Act or
implementing regulations prescribes the
relationship between PSOB Counsel and
PSOB determining officials. To make
transparent the role of PSOB Counsel
and the scope of Counsel’s review in the
PSOB claims process, proposed § 32.10
would require that PSOB determining
officials seek legal advice from PSOB
Counsel before determining a claim.
However, the proposed rule would limit
the scope of such advice to the
interpretation of law under the PSOB
Act and implementing regulations and,
unless directed otherwise by the
Assistant Attorney General for the
Office of Justice Programs, PSOB
Counsel would be precluded from
reviewing findings of fact made by
PSOB determining officials.
Section 32.12
Time for Filing a Claim
Under current § 32.12, unless the time
for filing is extended by the BJA
Director for good cause shown, a
claimant (applicant under proposed
§ 32.9) must file a claim for PSOB
Program death benefits before the later
of three years from the date of the public
safety officer’s death, or one year after
a final determination of survivors
benefits or statement from the public
agency that it was not legally authorized
to pay survivors benefits on behalf of
such an officer. Consistent with
proposed § 32.5(l), and to simplify
administration of the program, the
proposed rule would eliminate
provisions associated with the one-year
requirement as well as all provisions
referring to prerequisite certification
and provide that no application shall be
considered if it is filed with the PSOB
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Office more than three years after the
public safety officer’s death.
Section 32.13
Definitions
Section 32.13 provides definitions
applicable to claims for PSOB Program
death benefits. OJP proposes to add new
definitions or revise existing definitions
in § 32.13 as follows:
• Beneficiary of a life insurance
policy of a public safety officer: Where
it has been established that public safety
officer died as the direct and proximate
result of a personal injury sustained in
the line of duty injury, and there is no
surviving spouse, surviving child, or
surviving individual designated by the
officer to receive the PSOB Program
death benefit, under 42 U.S.C.
3796(a)(4)(B), BJA will pay the surviving
individual(s) designated by the public
safety officer to receive benefits under
the officer’s most recently executed life
insurance policy on file at the time of
death with the public safety agency.
Under regulations in 28 CFR 32.13
defining ‘‘beneficiary of a life insurance
policy of a public safety officer,’’ BJA
may consider as revoked a life insurance
beneficiary designation which lists a
former spouse who, following the
designation, was divorced from the
public safety officer, unless it is
demonstrated that the officer had no
intentions of revoking the designation
for his or her former spouse.
Similar to the regulation regarding
former spouses, the proposed rule
would add a new paragraph (3)
permitting BJA to consider as revoked a
designation in a life insurance policy of
a beneficiary who dies after the public
safety officer but before a determination
can be made in favor of a living
contingent beneficiary. In the
circumstances described, the proposed
rule would enable BJA to honor the
public safety officer’s designation of a
contingent beneficiary rather than
disregarding it in favor of the next
category of eligible beneficiaries,
surviving parents.
• Engagement in a situation involving
law enforcement, fire suppression,
rescue, hazardous material response,
emergency medical services, prison
security, disaster relief, or other
emergency response activity: For a fatal
heart attack, stroke, or vascular rupture
to qualify for the statutory presumption
of death resulting from a line of duty
injury in 42 U.S.C. 3796(k), a public
safety officer must, among other things,
engage in a situation involving specific
line-of-duty actions or participate in a
training exercise as defined in 28 CFR
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32.13.33 A public safety officer engages
in qualifying activity when he or she is
actually engaging in law enforcement,
suppressing fire, or performing one of
the other types of activity currently
defined in 28 CFR 32.13.
The agency’s experience is that the
‘‘engagement’’ activities listed in the
law, in some cases, necessarily require
other activities to take place prior to a
public safety engagement. For example,
a firefighter may need to clear the snow
from the driveway of a fire station, or
change a flat tire on a fire truck before
the public agency can engage in fire
suppression. Although ‘‘engagement in
a situation involving . . . fire
suppression’’ generally begins with the
department’s or agency’s request for a
particular officer to perform this type of
activity, under the current rules, it
generally cannot be said to include the
clearing of the station’s driveway or the
changing of a tire unless such action is
performed in the course of the actual
engagement.
The proposed rule would expand the
current regulatory definition to cover
only those line of duty actions or
activities that, if not performed, would
directly preclude the public agency
from providing fire suppression, rescue,
hazardous material response, emergency
medical services, prison security,
disaster relief, or other emergency
response activity. Thus, the proposed
definition would cover as part of an
engagement under 42 U.S.C. 3796(k) a
public safety officer’s changing of a flat
tire on a fire truck necessary for the
public agency to engage in fire
suppression.
• Nonroutine strenuous physical
activity: To be eligible for the
presumption in 42 U.S.C. 3796(k), a
public safety officer must, among other
things, either participate in a training
exercise or in a situation involving
nonroutine stressful or strenuous
physical activity. The agency has
defined ‘‘nonroutine stressful or
strenuous physical activity’’ in
regulations as two distinct terms:
‘‘nonroutine stressful physical activity’’
and ‘‘nonroutine strenuous physical
activity.’’
Generally speaking, nonroutine
strenuous physical activity is defined in
28 CFR 32.13 as line of duty activity
that (1) is not excluded as clerical,
administrative, or non-manual in
nature, (2) is not routinely performed,
and (3) requires ‘‘an unusually-high
level of physical exertion.’’ Whether a
33 The activities in which a public safety officer
must engage to obtain the benefit of the
presumption, e.g., law enforcement, are defined in
28 CFR 32.3.
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public safety officer’s activity
constitutes an ‘‘unusually high-level of
physical exertion’’ has often proven
challenging for claimants to
demonstrate and the agency to
evaluate.34
To make clear what constitutes
‘‘strenuous,’’ and to facilitate more
consistent decision making, the agency
proposes to replace the term
‘‘unusually-high’’ with the term
‘‘vigorous.’’ The use of vigorous as a
descriptor is appropriate as it is used by
the Centers for Disease Control (CDC) to
characterize physical activity that
exceeds a moderate level of intensity.35
Relevant to a standard that must be
applied to public safety officers, the
CDC’s examples take into consideration
an individual’s age and weight. The
proposed rule would not expand the
type of physical activity considered to
be strenuous, but rather would make
claims processing more efficient by
providing the public and the agency
with a recognized standard that is more
easily understood and applied.
• Nonroutine stressful physical
activity: To be eligible for the
presumption in 42 U.S.C. 3796(k), a
public safety officer’s participation in a
training exercise or engagement in a
situation involving law enforcement,
etc., must also involve either nonroutine
stressful physical activity or nonroutine
strenuous physical activity. Generally
speaking, nonroutine stressful physical
activity is defined in current 28 CFR
32.13 as line of duty activity that (1) is
not excluded as clerical, administrative,
or non-manual in nature, (2) is not
routinely performed, and (3) is not
capable of being performed without
minimal physical exertion. The
‘‘stressful’’ component of an officer’s
nonroutine stressful physical activity is
evaluated differently according to
whether the officer was (1) engaged in
a situation involving law enforcement,
fire suppression, rescue, hazardous
material response, emergency medical
services, prison security, disaster relief,
or other emergency response activity, or
34 See Department of Justice, Office of the
Inspector General, The Office of Justice Programs’
Implementation of the Hometown Heroes Survivors
Benefits Act of 2003, I–2008–005 i (March 2008)
(explaining that OIG conducted its review ‘‘in
response to concerns expressed by several members
of Congress . . . that OJP’s narrow interpretation of
terms found in the Act—in particular the phrases
‘‘nonroutine stressful or strenuous physical
activity’’ and ‘‘competent medical evidence to the
contrary’’—might be resulting in a high rate of
claims denials’’).
35 See e.g., Centers for Disease Control, General
Physical Activities Defined by Level of Intensity,
https://www.cdc.gov/nccdphp/dnpa/physical/pdf/
PA_Intensity_table_2_1.pdf (accessed Feb. 11,
2016).
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(2) was participating in a training
exercise.
Under current 28 CFR 32.13, an
officer’s engagement in a situation is
considered ‘‘stressful’’ if, when viewed
objectively, the circumstances of the
engagement expose, or appear to expose,
the officer to ‘‘significant’’ perils or
harms not encountered by the public in
the ordinary course and, as a result,
cause the officer to suffer an ‘‘unusually
high’’ degree of distress manifested by
fear, apprehension, anxiety, or unease.
Similarly, under the same regulation, an
officer’s participation in a training
exercise is considered ‘‘stressful’’ if,
when viewed objectively, the
circumstances replicate situations that
expose the officer to significant perils or
harms, and, as a result, cause the officer
to suffer an ‘‘unusually-high’’ degree of
distress manifested by fear,
apprehension, anxiety, or unease.
Similar to the agency’s experience
with implementing the term
‘‘nonroutine strenuous physical
activity,’’ whether a public safety
officer’s activity exposes the officer to
‘‘significant’’ dangers or produces an
‘‘unusually-high’’ degree of distress has
often proven challenging for claimants
to demonstrate and the agency to
evaluate. Although it is clear that a
traffic stop, arrest of a suspect, response
to a motor vehicle accident, or response
to a structure fire each expose an officer
to significant threats not ordinarily
encountered by a member of the public
when viewed objectively, produce in
the officer some degree of distress, i.e.,
‘‘fear or anxiety,’’ it is difficult for BJA,
the public agency, or the claimant to
establish whether these circumstances
expose the officer a significant peril or
an ‘‘unusually-high level’’ of distress,
i.e., ‘‘fear or anxiety.’’
To make clear what constitutes
‘‘stressful’’ activity and to facilitate
more consistent decision making, the
agency proposes to eliminate in the
regulatory definition the term
‘‘significant,’’ and to replace the term
‘‘unusually-high’’ with ‘‘unusual.’’ The
elimination of these qualifiers will
maintain the integrity of the statutory
requirement that the activity be
‘‘stressful’’ while aligning the text of the
regulation with circumstances faced by
public safety officers and the agency’s
interpretation of such circumstances.
The proposed rule would not expand
the type of physical activity considered
to be stressful, but rather would make
claims processing more efficient by
providing the public and the agency
with a standard that is more easily
understood and applied.
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Section 32.14 PSOB Office
Determination
Consistent with proposed § 32.5(m),
which consolidates all abandonment
provisions into a single paragraph, the
proposed rule would remove paragraph
(b), which prescribes abandonment
provisions for death claims.
Section 32.15
Prerequisite Certification
Consistent with proposed § 32.5(l),
which replaces §§ 32.15 and 32.25, the
proposed rule would remove § 32.15
which prescribes prerequisite
certification requirements for death
claims.
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Section 32.16
Payment
Under current § 32.16(a), BJA may not
pay more than one person on the basis
of being a public safety officer’s parent
as a mother, or on that basis as a father.
In cases where more than one parent
qualifies as the officer’s father, or as the
officer’s mother, the regulation currently
limits BJA’s payment to the ‘‘one with
whom the officer considered himself, as
of the injury date, to have the closest
relationship.’’ The regulation also
provides that a biological or legally
adoptive parent whose parental rights
have not been terminated is rebuttably
presumed to have had the closest
relationship with the officer.
BJA’s experience is that there may
exist circumstances in which more than
two persons share with the public safety
officer a close personal relationship as
a parent. The proposed rule would
retain the presumption that a biological
or legally adoptive parent whose
parental rights have not been terminated
is presumed to be a ‘‘parent,’’ but permit
BJA to pay in equal shares additional
persons as the parent of a public safety
officer when evidence demonstrates that
there exists such a relationship as
defined in 28 CFR 32.13.
Current regulations do not make clear
the agency’s interpretation regarding the
payment of benefits to a surviving
individual in a category of beneficiaries
with more than one beneficiary. For
example, in an approved PSOB claim in
which the surviving parents are the
appropriate beneficiaries under 42
U.S.C. 3796(a)(5), and one of the parents
has not filed a claim for benefits but
there is no evidence that the non-filing
parent is deceased, agency practice is to
hold the share payable to the surviving
parent in the event that the non-filing
parent may file a claim, or, if he or she
failed to file a claim in the time
prescribed, a request for an extension of
time to file. To make clear the agency’s
interpretation and to provide for the
timely payment of benefits to
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individuals determined to be eligible for
benefits, BJA proposes to add a new
§ 32.6(d) that would address such
situations. The proposed rule would
consider deceased and therefore
ineligible, any person, who, being 18
years of age, or older at the date of the
public safety officer’s injury, and not
incapable of self-support as defined in
42 U.S.C. 3796b(3)(C), failed to file an
application for benefits within the time
prescribed for such filing. Thus, if one
of two surviving parents failed to file a
written claim, the agency would hold
the non-filing parent’s share until the
time for filing had expired. After such
time, the agency would pay the
remaining one-half share to the filing
parent. The proposed rule is intended to
prevent an adult beneficiary’s failure to
file a claim for benefits from hindering
BJA’s ability to fairly and timely
distribute program benefits amongst a
public safety officer’s eligible
beneficiaries.
Section 32.22 Time for Filing a Claim
Under current § 32.22, unless the time
for filing is extended by the BJA
Director for good cause shown, a
claimant must file a claim for PSOB
Program disability benefits before the
later of three years from the date of the
public safety officer’s injury, or one year
after a final determination of disability
benefits by the public agency or
statement from the public agency that it
was not legally authorized to pay
disability benefits on behalf of such
officer. Consistent with proposed
§ 32.5(l), and to simplify administration
of the program, the proposed rule would
eliminate provisions associated with the
one-year requirement as well as all
provisions referring to prerequisite
certification, and provide that no
application shall be considered if it is
filed with the PSOB Office more than
three years after the public safety
officer’s injury.
Section 32.23 Definitions
Section 32.23 provides definitions
applicable to claims for PSOB disability
benefits. OJP proposes to revise existing
definitions in § 32.23 as follows:
• Gainful work: The proposed rule
would redefine the term ‘‘gainful work’’
to provide a framework for PSOB
determining officials to analyze whether
any type or amount of work performed
for pay disqualifies a claimant for PSOB
Program disability benefits who has
been found by medical professionals to
be permanently and significantly
disabled from a line of duty injury.
To establish eligibility for the
payment of disability benefits under the
PSOB Act, it is not enough that a
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claimant is unable to perform the duties
of a public safety officer as the result of
a line of duty injury.36 Rather, the
claimant must be permanently unable to
perform any ‘‘gainful work’’ as the result
of a line of duty injury.37 ‘‘Gainful
work’’ as currently defined in 28 CFR
32.23 generally refers to either full- or
part-time activity for which an
individual is paid or would ordinarily
be paid Under current PSOB
regulations, the agency determines
whether a claimant is unable to perform
any gainful work based upon a medical,
and in some cases, vocational
assessment, of the claimant’s residual
functional capacity, i.e., what the
claimant is capable of doing despite the
disabling conditions he or she incurred
in the line of duty.38
As a part of its assessment of
disability, the agency also reviews a
claimant’s tax records to determine
whether a claimant has received wages
in return for work since the date of
injury, or, as appropriate, since the date
the officer was found disabled by his or
her public agency or separated from his
or her public agency by reason of
disability. The agency has generally
interpreted current regulations defining
‘‘gainful work’’ as precluding a finding
of total disability when a claimant has,
after his or her disability retirement or
separation, and contemporaneous with
the filing of an application for disability
benefits, received any wages in return
for work, regardless of the amount of
wages received or the type of work for
which the wages were paid.
In the overwhelming majority of
cases, the current regulations defining
‘‘gainful work’’ work well. However, in
some complex cases, a claimant found
by both medical and vocational
professionals to be totally and
permanently disabled has nevertheless
performed activity that either is actually
compensated, (e.g., a claimant with
significant orthopedic and cognitive
disabilities received $100 honorarium
for serving on an organization’s
governance board), or is commonly
compensated, (e.g., a claimant with
cognitive impairment resulting from a
severe brain injury volunteers
intermittently at a hospital by providing
directions at an information desk).
Despite each claimant having been
found to be ‘‘incapable of performing
36 Under 42 U.S.C. 3796(b), the agency pays
disability benefits when it ‘‘determines that a public
safety officer has become [both] permanently and
totally disabled as the direct and proximate result
of a personal injury sustained in the line of duty.’’
37 See 42 U.S.C. 3796b(1) (defining ‘‘catastrophic
injury’’).
38 28 CFR 32.23 (defining Residual functional
capacity).
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any gainful work’’ as demonstrated by
objective medical examination and tests,
under the current regulatory definition
of ‘‘gainful work,’’ the claimant’s
performance of work that ‘‘actually is
compensated or commonly is
compensated’’ would generally
disqualify them from disability benefits.
In such circumstances, the current
definition’s emphasis on whether work
is actually or commonly paid as the
single measure of what constitutes
‘‘gainful’’ work, without regard to the
nature and quantity of work actually
performed or the amount of payment
received, does not provide an equitable
framework for the PSOB determining
official to determine whether the
claimant is in fact totally disabled. The
agency believes that evidence that a
claimant received $150 for intermittent
work activity that was offered and
performed for therapeutic reasons,
sheltered work, or was otherwise
performed outside the scope of
competitive employment, should not, by
itself, preclude a finding of total
disability under the PSOB Act.
As a result, the agency proposes to
revise the definition of gainful work to
provide that any such work activity
must be both substantial and gainful.
The proposed rule would define
substantial work activity on the basis of
whether the activities performed
involved significant mental or physical
activities and would provide examples
of work activity that is and is not
considered substantial. The proposed
rule would define gainful work activity
similarly to the current definition of
gainful work by characterizing work
activity as gainful if it is actually or
commonly compensated, i.e., performed
for pay, but exclude from compensation
reimbursement for incidental expenses
such as parking or de minimis
compensation.
The revised definition will enable the
agency to fairly determine whether a
claimant who has been determined,
pursuant to a medical assessment, to be
permanently and totally disabled but
nonetheless performs some sort of paid
work activity, should be awarded
disability benefits.
• Permanently disabled: Under 28
CFR 32.23, permanent disability is
shown when a medical assessment
establishes ‘‘to a degree of medical
certainty,’’ i.e., by clear and convincing
evidence, that a claimant’s condition
will progressively deteriorate or remain
constant over his or her expected
lifetime, or has reached maximum
medical improvement. The higher
standard of proof associated with
‘‘medical certainty’’ imposed by the
current regulation but not required by
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law often requires the agency to conduct
additional evidentiary development,
particularly in claims with conflicting
medical opinions. The agency’s
experience in applying the higher
standard of proof is that it does not
necessarily provide additional certainty
as the determining official, as in other
claims, makes determinations of
eligibility by weighing the evidence,
assessing its probative value, and
determining which evidence is entitled
to more weight and or credibility. As a
result, the agency believes applying the
standard of proof ‘‘to a degree of
medical probability’’ would lessen the
burden on claimants and the agency to
establish permanent disability, would
reduce delays in processing disability
claims, and would not impact the
integrity of the PSOB Program in any
way. As a result, the agency proposes to
revise the regulation to change the
standard of proof required to establish a
permanent level of disability from
‘‘medical certainty’’ to ‘‘medical
probability.’’
• Totally disabled: Under current
regulations in 28 CFR 32.23, total
disability is shown when a medical
assessment establishes ‘‘to a degree of
medical certainty,’’ i.e., by clear and
convincing evidence, that a claimant’s
residual functional capacity (that which
a medical and vocational assessment
demonstrates that the claimant can do
despite his or her disability) is such that
he or she cannot perform any gainful
work. For the reasons discussed in the
proposed revision to the definition of
‘‘permanent disabled,’’ the agency
proposes to revise the regulation to
change the standard of proof required to
establish such level of disability from
‘‘medical certainty’’ to ‘‘medical
probability.’’
Section 32.24 PSOB Office
Determination
Consistent with proposed § 32.5(o),
which consolidates all abandonment
provisions into a single paragraph, the
proposed rule would remove paragraph
(b), which prescribes abandonment
provisions for disability claims. The
proposed rule would also remove
references to reconsideration of negative
disability findings.
Section 32.25
Prerequisite Certification
Consistent with proposed § 32.5(l),
which replaces §§ 32.15 and 32.25, the
proposed rule would remove § 32.25,
which prescribes prerequisite
certification requirements for disability
claims.
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§ 32.27 Motion for Reconsideration of
Negative Disability Finding
Under current § 32.27, a claimant
whose claim is denied on the basis that
the evidence has not established that the
disability is total and permanent may
move for reconsideration, under § 32.28,
of the specific finding as to the total and
permanent character of the claimed
disability in lieu of requesting a Hearing
Officer determination with respect to
the same. Although providing an
alternative to a Hearing Officer
determination, the process is
cumbersome, confusing to claimants,
and since fiscal year 2011, fewer than 10
claimants have sought to take advantage
of this provision. Due to its lack of use,
BJA proposes to remove this rule, but
would continue its application for those
claims currently in the reconsideration
process. For the reasons discussed, BJA
also proposes to remove § 32.28 and
provisions in § 32.29 referring to such
motions.
§ 32.33
Definitions
Section 32.33 provides definitions
applicable to PSOB education benefits.
OJP proposes to add new definitions or
revise existing definitions in § 32.33 as
follows:
• Child of an eligible public safety
officer: The proposed rule would clarify
that an individual found to be an
eligible beneficiary under 42 U.S.C.
3796(a)(6) (i.e., a person who would be
eligible for death benefits as a child but
for his age), is not a child of an eligible
public safety officer under subpart D,
and thus not eligible for educational
assistance under the provisions of 42
U.S.C. 3796d–1 through 42 U.S.C.
3796d–7.
• Dependent: The proposed rule
would eliminate this definition, as the
Dale Long Act (sec. 1086 of Pub. L. 112–
239) removed the term from the PSOB
Act.
• Educational expenses: The
proposed rule would revise this
definition to provide that such expenses
refers to out-of-pocket expenses
incurred by a claimant or claimant’s
family. The proposed rule is intended to
provide that PSOB education benefits
are to reimburse claimants for those
expenses actually incurred for tuition,
fees, and that other expenses and are not
available when an educational
institution has waived or otherwise
discounted tuition, fees, or the cost of
other expenses for the claimant. The
proposed rule provides that in such
circumstances, BJA would calculate
reimbursement based on the actual costs
incurred, not the amount of tuition or
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fees charged before a waiver or other
discount is applied.
• Eligible dependent: The proposed
rule would eliminate this definition as
the Dale Long Act (sec. 1086 of Pub. L.
112–239) removed the term from the
PSOB Act.
• Tax Year: The proposed rule would
remove this definition as the Dale Long
Act (sec. 1086 of Pub. L. 112–239)
removed the term from the PSOB Act.
Section 32.34 PSOB Office
Determination
Consistent with proposed § 32.5(o),
which consolidates all abandonment
provisions into a single paragraph, the
proposed rule would remove paragraph
(b), which prescribes abandonment
provisions for disability claims.
Consistent with revisions to the
definitions in § 32.33, the proposed rule
would also remove references to
‘‘threshold claims.’’
Section 32.41
Scope of Subpart
The proposed rule would remove all
references to § 32.27 consistent with the
proposal to remove §§ 32.27, 32.28, and
32.29.
Section 32.42 Time for Filing Requests
for Determination
The proposed rule would remove all
references to § 32.27 consistent with the
proposal to remove §§ 32.27, 32.28, and
32.29.
Section 32.44 Hearing Officer
Determination
The proposed rule would, consistent
with proposed § 32.10, require that
Hearing Officers seek legal advice from
PSOB Counsel before determining a
claim. Consistent with proposed
§ 32.5(o), which consolidates all
abandonment provisions into a single
paragraph, the proposed rule would
remove paragraph (c), which prescribes
abandonment provisions for Hearing
Officer determinations.
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Section 32.45
Hearings
The proposed rule would clarify that,
at a hearing, Hearing Officers are the
only individual permitted to examine or
question a claimant, other than a
claimant’s own representative, if any.
The purpose of the proposed this rule is
to preserve the non-adversarial nature of
the Hearing Officer determination and
to make clear that a hearing is not for
purposes of providing claimants with
the opportunity to engage in trial-type
discovery as to other claimants.
Section 32.54
Director Determination
Consistent with proposed § 32.5(o),
which consolidates all abandonment
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provisions into a single paragraph, the
proposed rule would remove paragraph
(b), which prescribes abandonment
provisions for Director determinations.
V. Regulatory Requirements
Executive Order 12866 and 13563—
Regulatory Planning and Review
This proposed rule has been drafted
and reviewed in accordance with
Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ section 1(b),
Principles of Regulation, and in
accordance with Executive Order 13563,
‘‘Improving Regulation and Regulatory
Review,’’ section 1(b), General
Principles of Regulation. Although not
an economically significant rulemaking
under Executive Orders 12866 and
13563, the Office of Justice Programs
has determined that this proposed rule
is a ‘‘significant regulatory action’’
under section 3(f) of the Executive
Order, and accordingly this rule has
been reviewed by the Office of
Management and Budget (OMB).
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). As explained below, the agency
has assessed the costs and benefits of
this proposed rule as required by
Executive Order 12866 and has
determined that the benefits of the
proposed rule justify the costs.
A. Provisions That Define When an
Individual Is a Firefighter
Based on the number of claims
received in the past involving similar
situations and the circumstances of such
claims, OJP estimates that the revised
provisions could increase approvals by
approximately 1 claim per year. If all
such claims were paid at the current
rate, the annual PSOB Program death
and disability benefit cost would be
increased by $339,881. Based on
amounts appropriated in FY2016 for
PSOB Program death benefits (‘‘such
sums as necessary’’—estimated at
$71,323,000) and disability and
education benefits ($16,300,000), the
agency knows that it could pay the
death claims from its current
appropriations, and estimates that it
could pay the disability claims from its
current appropriations.
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B. Provisions That Define When an
Organization or Entity Is a Volunteer
Fire Department
Under existing law and regulations,
BJA currently determines that certain
volunteer fire departments qualify as
public agencies, and, as a result, that
qualified firefighters serving such
agencies qualify as public safety
officers. In addition, the proposed
definition of ‘‘volunteer fire
department’’ does not expand the
number or type of organizations that
qualify as a public agency under the law
but rather only codifies the agency’s
interpretation of the status of such
organizations as a public agency based
on existing provisions of law and
regulations. As such, OJP estimates that
there are no additional death or
disability benefit costs associated with
this provision.
C. Provisions Pertaining to the Filing of
an Application for Benefits, That Define
When an Individual Is a Public Safety
Officer, When an Officer Has Sustained
a Line of Duty Injury, an Officer Is
Permanently and Total Disabled When
Payment of Benefits Is Prohibited, When
Individuals Are Ineligible for Payment,
and Related Matters
Based on the number of claims
received in the past involving similar
situations and the circumstances of such
claims, OJP estimates that the revised
provisions, taken together, could
increase approvals by approximately 9
claims per year. If all 9 claims were paid
at the current rate, the annual PSOB
Program death and disability benefit
cost would be increased by $3,058,929.
Based on amounts appropriated in
FY2016 for PSOB Program death
benefits (‘‘such sums as necessary’’—
estimated at $71,323,000) and disability
and education benefits ($16,300,000),
the agency knows that it could pay the
death claims from its current
appropriations, and estimates that it
could pay the disability claims from its
current appropriations.
D. Provisions Pertaining to the
Admissibility, Sufficiency, Evaluation,
and Disclosure of Evidence Submitted
in PSOB Claims, and Related Matters
The primary benefit of the proposed
rules is that the revised requirements
would reduce the burden on claimants
to establish eligibility for benefits and
provide a corresponding reduction in
the agency’s processing burden in
gathering and evaluating such evidence.
The agency estimates that this acrossthe-board reduction in burden for both
claimants and the agency will translate
into reduced processing time for claims,
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more timely determinations, and
improved delivery of benefits. In terms
of benefit costs, the agency estimates
that there will not be a significant
increase in claims approved as
compared to the previous regulatory
criteria. Accordingly, the proposed rule
does not significantly increase benefit
costs.
E. Provisions Concerning the Fees That
May Be Charged for Representation in
PSOB Claims
The primary benefit of the proposed
rule is that it makes it easier for
individuals seeking benefits to obtain
qualified representation. In eliminating
restrictions on the types of fee
agreements permitted in representation
for PSOB claims, eliminating the
maximum hourly rate for
representative’s fees in favor of a
percentage-based maximum limit, and
establishing a presumption of
reasonableness for fees below certain
amounts, the agency believes that the
proposed rules would encourage more
attorneys to provide representation in
PSOB claims. A secondary benefit of the
proposed rules is that, in eliminating
automatic review of all petitions for
fees, the proposed rule will reduce
agency burden and permit the agency to
reallocate these resources to processing
claims. These provisions have no
impact on benefit costs.
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F. Provisions Establishing When an
Application for Benefits Is Complete
and Will Be Accepted for Processing as
a Claim
The primary benefit of the proposed
rule defining a ‘‘complete application’’
is that it will (1) provide clarity to
applicants for benefits as to precisely
what documents and information are
required for the agency to begin
processing the application as a claim,
and (2) enable the agency to allocate its
resources to those applications that are
sufficiently complete to warrant a
determination on the merits. A
secondary benefit of the proposed rule
is that, as the agency transitions further
to an entirely paperless processing
system, the proposed rule would
facilitate processing by releasing for
processing, with few exceptions, only
complete applications. These provisions
have no impact on benefit costs.
G. Provisions Establishing the Scope of
Administrative Legal Review of PSOB
Claims
The primary benefit of the proposed
rule is that it makes transparent the role
of PSOB Counsel in the processing of
claims. These provisions have no
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impact on benefit costs, and no impact
on administrative or personnel costs.
H. Provisions Pertaining to Educational
Assistance and Other Matters Necessary
To Implement the Proposed Rule
The primary benefit of the proposed
rule is that it makes clear how
educational expenses are calculated in
the processing of such claims and
implements recent amendments to the
Act. These provisions have no impact
on benefit costs.
I. Personnel and Training Costs for
Agency Staff
As PSOB claims and applications
under the provisions of the proposed
rule would be processed by existing
staff, the agency would not incur
additional personnel costs in processing
these claims. OJP acknowledges that
there would be some costs associated
with training current staff; however, OJP
estimates that such costs would be
nominal as such training is ordinarily
conducted in-house by existing legal
and program staff and is scheduled and
conducted to minimize disruptions to
claims processing.
This proposed rule would impose no
costs on state, local, or tribal
governments, or on the private sector.
Executive Order 13132—Federalism
This proposed rule would not have
substantial direct effects on the States,
on the relationship between the federal
government and the States, or on
distribution of power and
responsibilities among the various
levels of government. The PSOB
program statutes provide benefits to
individuals and do not impose any
special or unique requirements on
States or localities. Therefore, in
accordance with Executive Order No.
13132, it is determined that this
proposed rule does not have sufficient
federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988—Civil Justice
Reform
This proposed rule meets the
applicable standards set forth in
sections 3(a) & (b)(2) of Executive Order
No. 12988. Pursuant to section 3(b)(1)(I)
of the Executive Order, nothing in this
proposed rule or any previous rule (or
in any administrative policy, directive,
ruling, notice, guideline, guidance, or
writing) directly relating to the Program
that is the subject of this rule is
intended to create any legal or
procedural rights enforceable against the
United States, except as the same may
be contained within part 32 of title 28
of the Code of Federal Regulations.
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Regulatory Flexibility Act
This proposed rule would not have a
significant economic impact on a
substantial number of small entities for
the following reasons: This proposed
rule addresses federal agency
procedures; furthermore, this proposed
rule would make amendments to clarify
existing regulations and agency practice
concerning public safety officers’ death,
disability, and education benefits and
would do nothing to increase the
financial burden on any small entities.
Therefore, an analysis of the impact of
this proposed rule on such entities is
not required under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Paperwork Reduction Act of 1995
This proposed rule would impose or
modify reporting or recordkeeping
requirements under the Paperwork
Reduction Act of 1995 (PRA) (44 U.S.C.
3501 et seq.). The PRA requires certain
actions before an agency can adopt or
revise a collection of information,
including publishing a summary of the
collection of information and a brief
description of the need for and
proposed use of the information. 44
U.S.C. 3507.
The proposed rule includes
paperwork requirements in three
collections of information previously
approved by OMB for the PSOB
Program. OJP published in the Federal
Register on January 11, 2016, a 60-day
notice of ‘‘Agency Information
Collection Activities’’ for each of the
following forms: Claim for Death
Benefits (OMB Number 1121–0024),
Report of Public Safety Officer’s Death
(OMB Number 1121–0025), and Public
Safety Officers’ Disability Benefits (OMB
Number 1121–0166). In calculating the
burden associated with these forms/
collections, OJP reviewed its previous
burden estimates and updated these to
reflect the time required for claimants to
gather the many different documents
necessary to establish eligibility for
these benefits, e.g., birth certificates,
marriage certificates, divorce decrees
(where applicable), public agency
determinations as to death or disability
benefits, medical records, etc.
Information about the proposed
collections is as follows:
Claim for Death Benefits—Overview of
Information Collection
1. Type of Information Collection:
Reinstatement with change of a
previously approved collection.
2. The Title of the Form/Collection:
Claim for Death Benefits.
3. The agency form number, if any,
and the applicable component of the
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Department sponsoring the collection:
Bureau of Justice Assistance, Office of
Justice Programs, United States
Department of Justice.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Eligible survivors of
fallen public safety officers.
Abstract: BJA’s Public Safety Officers’
Benefits (PSOB) Office will use these
Claim Form information to confirm the
eligibility of applicants to receive Public
Safety Officers’ Death Benefits.
Eligibility is dependent on several
factors, including public safety officer
status, an injury sustained in the line of
duty, and the claimant status in the
beneficiary hierarchy according to the
PSOB Act. In addition, information to
help the PSOB Office identify an
individual is collected, such as Social
Security numbers, telephone numbers,
and email addresses. Changes to the
claim form have been made in an effort
to streamline the application process
and eliminate requests for information
that are either irrelevant or already
being collected by other means.
OJP estimates that no more than 350
respondents will apply each year. Each
application takes approximately 120
minutes to complete. OJP estimates that
the total public burden (in hours)
associated with the collection can be
calculated as follows: Total Annual
Reporting Burden: 350 × 120 minutes
per application = 42,000 minutes/by 60
minutes per hour = 700 hours.
Public Safety Officer’s Death—Overview
of Information Collection
1. Type of Information Collection:
Reinstatement with change of a
previously approved collection.
2. The Title of the Form/Collection:
Report of Public Safety Officer’s Death.
3. The agency form number, if any,
and the applicable component of the
Department sponsoring the collection:
Bureau of Justice Assistance, Office of
Justice Programs, United States
Department of Justice.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Public safety agencies
experiencing the death of a public safety
officer according to the PSOB Act.
Abstract: BJA’s Public Safety Officers’
Benefits (PSOB) Office will use these
Report of Public Safety Officer’s Death
Form information to confirm the
eligibility of applicants to receive Public
Safety Officers’ Death Benefits.
Eligibility is dependent on several
factors, including public safety officer
status, an injury sustained in the line of
duty, and the claimant status in the
beneficiary hierarchy according to these
Act. In addition, information to help the
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PSOB Office identify an individual is
collected, such as Social Security
numbers, telephone numbers, and email
addresses. Changes to the report form
have been made in an effort to
streamline the application process and
eliminate requests for information that
are either irrelevant or already being
collected by other means.
OJP estimates that no more than 350
respondents will apply each year. Each
application takes approximately 240
minutes to complete. OJP estimates that
the total public burden (in hours)
associated with the collection can be
calculated as follows: Total Annual
Reporting Burden: 350 × 240 minutes
per application = 84,000 minutes/by 60
minutes per hour = 1,400 hours.
Public Safety Officers’ Disability
Benefits—Overview of Information
Collection
1. Type of Information Collection:
Reinstatement with change of a
previously approved collection.
2. The Title of the Form/Collection:
Public Safety Officer’s Disability
Benefits.
3. The agency form number, if any,
and the applicable component of the
Department sponsoring the collection:
Bureau of Justice Assistance, Office of
Justice Programs, United States
Department of Justice.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Public safety officers
who were permanently and totally
disabled in the line of duty.
Abstract: BJA’s Public Safety Officers’
Benefits (PSOB) Office will use the
PSOB Disability Application
information to confirm the eligibility of
applicants to receive Public Safety
Officers’ Disability Benefits. Eligibility
is dependent on several factors,
including public safety officer status,
injury sustained in the line of duty, and
the total and permanent nature of the
line of duty injury. In addition,
information to help the PSOB Office
identify individuals is collected, such as
Social Security numbers, telephone
numbers, and email addresses. Changes
to the application form have been made
in an effort to streamline the application
process and eliminate requests for
information that are either irrelevant or
already being collected by other means.
OJP estimates that no more than 100
respondents will apply each year. Each
application takes approximately 300
minutes to complete. OJP estimates that
the total public burden (in hours)
associated with the collection can be
calculated as follows: Total Annual
Reporting Burden: 100 × 300 minutes
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per application = 30,000 minutes/by 60
minutes per hour = 500 hours.
Unfunded Mandates Reform Act of 1995
This proposed rule would 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 program 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.
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.
Accordingly, for the reasons set forth
in the preamble, part 32 of chapter I of
title 28 of the Code of Federal
Regulations is proposed to be amended
as follows:
PART 32—PUBLIC SAFETY OFFICERS’
DEATH, DISABILITY, AND
EDUCATIONAL ASSISTANCE
BENEFITS CLAIMS
1. The authority citation for 28 CFR
part 32 continues to read as follows:
■
Authority: 42 U.S.C. ch. 46, subch. XII; 42
U.S.C. 3782(a), 3787, 3788, 3791(a),
3793(a)(4) & (b), 3795a, 3796c–1, 3796c–2;
sec. 1601, title XI, Pub. L. 90–351, 82 Stat.
239; secs. 4 through 6, Pub. L. 94–430, 90
Stat. 1348; secs. 1 and 2, Pub. L. 107–37, 115
Stat. 219.
2. Amend § 32.2 by redesignating
paragraphs (e) and (f) as paragraphs (f)
and (g), respectively, and adding new
paragraphs (e) and (h) to read as follows:
■
§ 32.2
Computation of time; filing.
*
*
*
*
*
(e) In determining whether an
application, claim, or other document
will be considered if filed after the time
prescribed for such filing has passed,
good cause for such filing (excluding a
lack of knowledge about the PSOB
Program) may be found if the individual
acted with reasonable diligence after
any circumstance contributing to the
delay was removed, and the delay was
attributable to—
(1) Circumstances beyond the
individual’s control such as not having
reached the age of majority, extended
illness, or mental or physical incapacity;
(2) Incorrect information provided by
the public agency in which the public
safety officer served, or another public
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agency, related to the filing of a PSOB
claim that the individual relied upon to
his detriment;
(3) A determination of the officer’s (or
survivor’s) eligibility or entitlement to
death or disability benefits by the
officer’s public agency or other public
agency, made after the time for filing
has passed; or
(4) Other unavoidable circumstances
demonstrating that the individual could
not be reasonably expected to know
about the time limits for filing an
application or claim.
*
*
*
*
*
(h) The Director may, after publishing
a Notice in the Federal Register
consistent with 5 U.S.C. 552(a)(1)(C),
and providing reasonable notice through
the PSOB Program Web site, require all
applications, claims, and supporting
materials to be filed in electronic or
other form as the Director shall
prescribe.
*
*
*
*
*
■ 3. Amend § 32.3 as follows:
■ a. Add the definitions of ‘‘Agent’’ and
‘‘Attorney’’.
■ b. In the definition of ‘‘Authorized
commuting’’ add ‘‘, including
reasonable return travel’’ after ‘‘within
his line of duty’’.
■ c. Revise the definition of ‘‘Child of a
public safety officer’’.
■ d. Remove the definition of
‘‘Consequences of an injury that
permanently prevent an individual from
performing any gainful work’’.
■ e. Revise the definitions of
‘‘Department or agency’’,
‘‘Determination’’, ‘‘Divorce’’,
‘‘Employee’’, ‘‘Firefighter’’, ‘‘Gross
negligence’’, ‘‘Injury’’, ‘‘Injury date’’,
‘‘Involvement’’, ‘‘Line of duty activity or
action’’, and ‘‘Line of duty injury’’.
■ f. Add the definition of ‘‘Medical
probability.’’
■ g. Revise the definitions of ‘‘Official
capacity’’ and ‘‘Officially recognized or
designated public employee member of
a squad or crew’’.
■ h. Add the definition of ‘‘On-site
hazard management’’.
■ i. Revise the definition of ‘‘Parentchild relationship’’.
■ j. Add the definition of ‘‘PSOB
Counsel’’.
■ k. Remove the definitions of, and
‘‘Public employee member of a squad or
crew,’’ and ‘‘Stress or strain.’’
■ l. Revise the definitions of
‘‘Suppression of fire’’ and ‘‘Voluntary
intoxication’’.
■ m. Add the definition of ‘‘Volunteer
fire department’’
The revisions and additions read as
follows:
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§ 32.3
Definitions
*
*
*
*
*
Agent means an individual who
provides representative services to an
individual seeking benefits under the
Act and is not an attorney as provided
in this part.
*
*
*
*
*
Attorney means a member in good
standing of a State bar.
*
*
*
*
*
Child of a public safety officer means
an individual—
(1) Who meets the definition provided
in the Act, at 42 U.S.C. 3796b(3), and
(2) With respect to whom the public
safety officer’s parental rights have not
been terminated, as of the injury date.
*
*
*
*
*
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);
(3) An entity created by interstate
compact between two or more States or
between a State or States and the
District of Columbia with the consent
(through consenting or enabling
legislation, or similar mechanism) by
the United States Congress; or
(4) 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, the determination
described in the Act, at 42 U.S.C.
3796(c), or any recommendation under
§ 32.54(c)(3).
*
*
*
*
*
Divorce means a legally valid, i.e.,
court-ordered, dissolution of marriage.
*
*
*
*
*
Employee does not include—
(1) Any independent contractor;
(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; or
(3) Any active duty member of the
armed forces.
*
*
*
*
*
Firefighter means (1) An individual
who—
(i) Is trained in—
(A) Suppression of fire; or
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(B) Hazardous-material response; and
(ii) Has the legal authority and
responsibility to engage in the
suppression of fire, as—
(A) 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
(B) An individual otherwise included
within the definition provided in the
Act, at 42 U.S.C. 3796b(4); or
(2) An individual who is a participant
in an official training program of the
officer’s public agency that is mandatory
for that individual’s employment or
certification as a firefighter and such
training program involves the
suppression of fire or hazardousmaterial response.
*
*
*
*
*
Gross negligence means a reckless
departure from the ordinary care used
by similarly situated public safety
officers under circumstances where it is
highly likely that serious harm will
follow.
*
*
*
*
*
Injury—(1) Injury means—
(i) A traumatic physical wound or a
traumatized condition of the body, or
the increase in severity of such an
existing wound or condition, directly
and proximately caused by—
(A) External force such as bullets or
physical blows;
(B) Exposure to external factors such
as chemicals, electricity, climatic
conditions, infectious disease, radiation,
virus, or bacteria;
(C) Heatstroke; or
(D) Acute and immediate
musculoskeletal strain or muscle
damage such as a disc herniation or
rhabdomyolysis,
(ii) But does not include—
(A) Any occupational disease;
(B) Any chronic, cumulative, or
progressive condition of the body;
(C) Cardiovascular disease; or
(D) Any mental health condition
including post-traumatic stress disorder,
depression, or anxiety.
(2) With respect to claims based on a
fatal heart attack, stroke, or vascular
rupture, injury also means the
presumption of personal injury
established when the requirements of 42
U.S.C. 3796(k) are satisfied.
*
*
*
*
*
Injury date—(1) In general, injury date
means the time of the line of duty injury
that—
(i) Directly and proximately results in
the public safety officer’s death, with
respect to a claim under—
(A) Subpart B of this part; or
(B) Subpart D of this part, by virtue of
his death; or
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(ii) Directly (or directly and
proximately) results in the public safety
officer’s total and permanent disability,
with respect to a claim under—
(A) Subpart C of this part; or
(B) Subpart D of this part, by virtue of
his disability.
(2) With respect to claims under the
Act, at 42 U.S.C. 3796(k), injury date
means the time of the public safety
officer’s qualifying engagement or
participation referred to in the Act at 42
U.S.C. 3796(k)(1).
*
*
*
*
*
Involvement—An individual is
involved in crime and juvenile
delinquency control or reduction, or
enforcement of the criminal laws
(including juvenile delinquency), only if
the individual is an officer, or in the
case of an officer trainee, an employee,
of a public agency and, in that capacity,
is recognized by such agency, or the
relevant government (or, at a minimum,
not denied by such agency, or the
relevant government) as having—
(1) Legal authority 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, or
(2) Legal authority to participate in an
official training program of the officer’s
public agency that is mandatory for that
individual’s employment or certification
as a police officer, corrections officer,
probation officer, or their equivalent.
*
*
*
*
*
Line of duty activity or action—
Activity or an action is performed in the
line of duty if it is not described in the
Act, at 42 U.S.C. 3796a(1), in the case
of a public safety officer who is—
(1) A law enforcement officer or
firefighter—
(i) Whose primary function (as
applicable) is public safety activity, only
if 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 official training programs of his
public agency) 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 have been so
obligated or authorized at the time
performed (or, at a minimum, does not
deny (or has not denied) it to have been
such); or
(ii) Whose primary function is not
public safety activity, only if—
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(A) It is activity or an action that he
is obligated or authorized by statute,
rule, regulation, condition of
employment or service, official mutualaid 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 have been so
obligated or authorized at the time
performed (or, at a minimum, does not
deny (or has not denied) it to have been
such); and
(B) It is performed (as applicable) in
the course of public safety activity
(including emergency response activity
the agency is authorized to perform), or
taking part (as a trainer or trainee) in an
official training program of his public
agency for such activity (including
participation as a trainee in an official
training program of his public agency
that is mandatory for that individual’s
employment or certification as a
firefighter, police officer, corrections
officer, probation officer, or equivalent),
and such agency (or the relevant
government) legally recognizes it to
have been such at the time performed
(or, at a minimum, does not deny (or has
not denied) it to have been such); or
(iii) Only if it constitutes public safety
activity, is performed in the course of
responding to an emergency situation
that the officer did not create through
his own actions, requires prompt
decisions and action to save another
human life, and is not contrary to the
law of the jurisdiction in which
performed;
(2) A member of a rescue squad or
ambulance crew, only if 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 or nonprofit entity he
serves, it is performed in the course of
engaging in rescue activity or providing
emergency medical services, and such
agency (or the relevant government) or
nonprofit entity legally recognizes it to
have been such at the time performed
(or, at a minimum, does not deny (or has
not denied) it to have been such; or
(3) A disaster relief worker, only if, 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
to have been such at the time performed
(or, at a minimum, does not deny (or has
not denied) it to have been such); or
(4) A chaplain, only if—
(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,
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57367
or other law, to perform, under the
auspices of the public agency he serves,
and such agency (or the relevant
government) legally recognizes it to
have been such at the time performed
(or, at a minimum, does not deny (or has
not denied) it to have been 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 to have been such at the time
performed (or, at a minimum, does not
deny (or has not denied) it to have been
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) Such injury resulted from the
injured party’s status as a public safety
officer, or was sustained in retaliation
for line of duty actions taken by the
officer or other public safety officers.
*
*
*
*
*
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.
*
*
*
*
*
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); or
(3) His acts and omissions while
responding to an emergency for
purposes of saving human life constitute
a line of duty action or activity as
defined in this part.
*
*
*
*
*
Officially recognized or designated
employee or volunteer member of a
rescue squad or ambulance crew means
an employee or volunteer member of a
rescue squad or ambulance crew who—
(1) Is officially recognized (or
officially designated) as such an
employee or volunteer member, by the
public agency or nonprofit entity
serving the public under whose
auspices the squad or crew operates,
and
(2) Is engaging in rescue activity or in
the provision of emergency medical
services as authorized or licensed by
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law and by the applicable agency or
entity.
*
*
*
*
*
On-site hazard management means
on-site hazard evaluation and providing
scene security or directing traffic in
response to any fire, rescue, or law
enforcement emergency.
*
*
*
*
*
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).
*
*
*
*
*
PSOB Counsel means the legal staff
within BJA that provides programmatic
legal advice to PSOB determining
officials and performs legal review of
PSOB Program claims and related
matters.
*
*
*
*
*
Suppression of fire means
extinguishment, physical prevention,
containment of fire, and on-site hazard
management.
*
*
*
*
*
Voluntary intoxication at the time of
death or catastrophic injury means the
following, as shown by any commonly
accepted tissue, -fluid, or -breath test or
by other competent evidence:
(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; or
(ii) In any claim in which a public
safety officer’s death occurred after the
injury date, 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); and
(B) As of the injury date; or
(2) With respect to drugs or other
substances, it means intoxication as
defined in the Act, at 42 U.S.C.
3796b(5), as evidenced by—
(i) The officer acting in an intoxicated
manner as of the injury date, unless
convincing evidence demonstrates that
the introduction of drugs or other
substances was not an intentional act of
the officer’s; or
(ii) The presence (as of the injury
date) in the body of the public safety
officer of drugs or substances included
on Schedules I–III of the drug control
and enforcement laws (see 21 U.S.C.
812(a)), unless convincing evidence
demonstrates that—
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(A) The introduction of such drug or
other substance was not an intentional
act of the officer’s, or
(B) The drug or other substance would
not produce intoxication in the amount
present in the public safety officer’s
body.
*
*
*
*
*
Volunteer fire department—a
volunteer fire department is an
instrumentality within the meaning of
the Act at 42 U.S.C. 3796b(8) if—
(1) It is legally established as a
nonprofit entity serving the public,
(2) It is legally established and
operates solely for the purpose of
providing fire protection and related
services to or on behalf of a public
agency or agencies, and
(3) It provides fire protection and
related services to the public without
preference or subscription.
■ 4. Amend § 32.5 as follows:
■ a. Revise paragraph (a).
■ b. Remove paragraphs (c) and (d)(3).
■ c. Redesignate paragraph (b) as
paragraph (c).
■ d. In paragraph (i) add ‘‘and
physically stressful’’ after ‘‘nonroutine’’.
■ e. Add new paragraphs (b), (k), (l), and
(m).
The revision and additions read as
follows:
§ 32.5
Evidence.
(a) Except as otherwise may be
expressly provided in the Act or this
part, a claimant is responsible for
establishing all issues of fact for the
particular benefit sought by the standard
of proof of ‘‘more likely than not.’’
(b) The evidence that a claimant
produces, both circumstantial and
direct, must be credible, probative, and
substantial, and, when deemed
necessary by a PSOB determining
official, produced in original format or
certified as a true and exact copy of a
record by a custodian of such records or
other person capable of verifying the
authenticity of such records.
*
*
*
*
*
(k) In instances where the
determining official finds that there is a
balance of positive and negative
evidence for an issue material to the
particular benefit sought, the PSOB
determining official will resolve the
point in favor of the payment of
benefits. Such a finding of equivalence
must be based on reason, logic, common
sense, and the determining official’s
experience, and, under no
circumstances, may a lack of evidence
in support of a particular fact be
understood to establish or create such
equivalence.
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(l) A PSOB determining official may
require from a claimant proof of birth,
death, disability, earnings, education,
employment, expenses, injury,
relationship, marriage, or other
information deemed necessary to
establish eligibility for a benefit under
the Act. A PSOB determining official
may also require waivers, consents, or
authorizations from claimants to obtain
directly from third parties tax, medical,
employment, or other information that
the PSOB determining official deems
relevant in determining the claimant’s
eligibility, and may request an
opportunity to review original
documents submitted in connection
with the claim.
(m) In the absence of reasonable
excuse or justification, when evidence
necessary to a determination on a claim
that has been requested in writing in
connection with a complete claim for
benefits is not filed with the PSOB
Office within one year of the date of
such request, or a claimant has
otherwise failed to pursue in a timely
fashion a determination on his or her
claim, the claim will be considered as
abandoned, as though never filed. Not
less than 33 days prior to the PSOB
determining official finding the claim to
be abandoned, the PSOB Office shall
serve the claimant with notice of intent
to deem the claim abandoned. In the
event of abandonment, the time periods
prescribed for filing an initial
application for benefits or other filing
deadline are neither tolled nor
applicable. A claimant may reopen an
abandoned claim within 180 days from
the date of abandonment provided
claimant files with the PSOB Office a
complete claim, including any
information previously requested but
not provided. After a claim for benefits
has been abandoned and a complete
claim has not been filed with the PSOB
Office in the time prescribed for
reopening such claim, no further action
on the claim will be taken by the
agency.
■ 5. Revise § 32.7 to read as follows:
§ 32.7
Fees for representative services.
(a) Only attorneys, as defined in this
part, or an individual working under the
direct supervision of an attorney and for
whose conduct the attorney is
responsible for under applicable Rules
of Professional Conduct (e.g., a
paralegal), may charge fees for
representative services provided in
connection with any claim. Fees sought
for representative services provided in
connection with any claim must be
reasonable. Subject to paragraphs (e)
and (f) of this section, fees may be based
on a fixed fee, hourly rate, a percentage
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of benefits recovered, or a combination
of such bases. An authorization under
paragraph (c) 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 level of administrative or
judicial review to which the claim was
pursued and the point at which the
petitioner entered the proceedings;
(6) The ordinary, usual, or customary
fee charged by other persons (and by the
petitioner) for services of a similar
nature; and
(b) Before submitting the petition
described in paragraph (c) of this
section, a person seeking to receive any
amount of fees from a claimant for
representative services provided in
connection with any claim under the
Act shall file with the PSOB Office a
copy of the fee agreement.
(c) To receive fees for representative
services provided in connection with
any claim, a representative shall
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 (c)(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
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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 (c)(6)(ii) of this section.
(d) 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.
(e) No amount shall be authorized
under this section for—
(1) Fees in excess of 12 percent of the
total death or disability benefit payment
available to a claimant regardless of how
the fee agreement is structured; or
(2) 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.
(f) Fees otherwise qualifying under
this section shall be presumed
reasonable—
(1) In a claim determined by the PSOB
Office that does not exceed 8 percent of
the total death or disability benefit
payment available to a claimant, or
(2) In a claim determined by the
Hearing Officer or Director that does not
exceed 10 percent of the total death or
disability benefit payment available to a
claimant.
(g) The presumptions in paragraph (f)
of this section may be rebutted through
an examination of the factors in
paragraph (a) of this section establishing
by clear and convincing evidence that
the fee is unreasonable.
(h) 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.
(i) 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.
■ 6. Add § 32.9 to read as follows:
§ 32.9
Complete applications.
(a) Before an application for benefits
under the Act will be processed as a
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claim, i.e., assigned a claim number by
the PSOB Office, determined by the
PSOB Office, and reviewed for legal
sufficiency, such application must be
‘‘complete’’ as provided in this section.
(b) Except as indicated in paragraph
(d) of this section, an application for
death benefits or disability benefits shall
constitute a complete application only if
all of the basic required documents
identified on the ‘‘PSOB Checklist of
Required Documents for Filing a PSOB
Death [or Disability, as appropriate]
Benefits Claim,’’ available at the PSOB
Program Web site, are filed with the
PSOB Office.
(c) If an applicant files with the PSOB
Office an application for benefits that,
pursuant to paragraph (b) of this section,
is not complete, the PSOB Office will
serve the applicant with written notice
of the information necessary to
complete the application and defer any
further processing of the application
and consideration as a claim until such
Office receives all of the information
described in paragraph (b).
(d) An applicant’s inability to file
evidence as a result of a refusal by a
public agency in which the officer
served to provide the information
identified in this section (or the public
agency’s demonstrated inability to
provide such information) shall not
render an application incomplete if the
applicant provides to the PSOB Office
evidence demonstrating that such
inability to file basic required
documents is not due to any fault of the
applicant.
■ 7. Add § 32.10 to read as follows:
§ 32.10
PSOB Counsel.
(a) Before determining a claim for
benefits under the Act, PSOB
determining officials shall seek legal
advice from PSOB Counsel.
(b) Legal advice provided by PSOB
Counsel to PSOB determining officials
shall be limited to the interpretation and
application of the PSOB Act and
implementing regulations and law and
regulations referenced in or having
direct application to the PSOB Act or its
implementing regulations.
(c) Unless otherwise ordered by the
Assistant Attorney General for the
Office of Justice Programs, the scope of
PSOB Counsel’s legal advice shall not
include the review of findings of fact
made by PSOB determining officials.
■ 8. Revise § 32.12 as follows:
§ 32.12
Time for filing claim.
(a) Unless, for good cause shown, as
defined in § 32.2(e) of this part, the
Director extends the time for filing, no
application shall be considered if it is
filed with the PSOB Office more than
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three years after the public safety
officer’s death.
(b) An applicant may file with the
PSOB Office such supporting
documentary, electronic, video, or other
nonphysical evidence and legal
arguments as he may wish to provide.
■ 9. Amend § 32.13 as follows:
■ a. Revise the definition of
‘‘Beneficiary of a life insurance policy of
a public safety officer’’.
■ b. Remove from the definition of
‘‘child-parent relationship’’ the phrase
‘‘, as shown by convincing evidence’’.
■ c. Revise the definition of
‘‘Engagement in a situation involving
law enforcement, fire suppression,
rescue, hazardous material response,
emergency medical services, prison
security, disaster relief, or other
emergency response activity’’.
■ d. Remove the definition of ‘‘Medical
probability’’.
■ e. Revise the definitions of
‘‘Nonroutine strenuous physical
activity’’ and ‘‘Nonroutine stressful
physical activity’’.
The revisions read as follows:
§ 32.13
Definitions.
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*
*
*
*
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) or otherwise
unterminated, 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) did not
take place, unless preponderant
evidence demonstrates that—
(i) It did not take place for reasons
other than personal differences between
the officer and the individual; or
(ii) No such revocation was intended
by the officer;
(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
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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, and.
(3) Any designation of an individual,
who was living on the date of the
officer’s death, but who dies before a
determination of PSOB death benefits,
shall be considered to be revoked by
such officer on the date of the officer’s
death in favor of the officer’s living
contingent beneficiary or beneficiaries,
if any.
*
*
*
*
*
Engagement in a situation involving
law enforcement, fire suppression,
rescue, hazardous material response,
emergency medical services, prison
security, disaster relief, or other
emergency response activity—A public
safety officer is so engaged 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 hazardousmaterial emergency;
(iv) Performing rescue activity;
(v) Providing emergency medical
services;
(vi) Performing disaster relief activity;
(vii) Otherwise engaging in emergency
response activity; or
(viii) Performing a line of duty
activity or action, that had it not been
performed immediately, would have
rendered the public agency unable to
perform the activities in paragraphs
(1)(i) through (vii) of this section; and
(2) The public agency he serves (or
the relevant government) legally
recognizes him to have been in such
course at the time of such engagement
or activity (or, at a minimum, does not
deny (or has not denied) him so to have
been).
*
*
*
*
*
Nonroutine strenuous physical
activity means line of duty activity
that—
(1) Is not excluded by the Act, at 42
U.S.C. 3796(l);
(2) Is not performed as a matter of
routine; and
(3) Entails a vigorous level of physical
exertion.
Nonroutine stressful physical activity
means line of duty activity that—
(1) Is not excluded by the Act, at 42
U.S.C. 3796(l);
(2) Is not performed as a matter of
routine;
(3) Entails non-negligible physical
exertion; and
(4) Occurs—
(i) With respect to a situation in
which a public safety officer is engaged,
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under circumstances that objectively
and reasonably—
(A) Pose (or appear to pose) dangers,
threats, or hazards (or reasonablyforeseeable risks thereof), not faced by
similarly-situated members of the public
in the ordinary course; and
(B) Provoke, cause, or occasion
unusual 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 dangers, threats, or
hazards; and
(B) Provoke, cause, or occasion
unusual alarm, fear, or anxiety.
*
*
*
*
*
■ 10. Revise § 32.14 to read as follows:
§ 32.14
PSOB Office determination.
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—
(a) Specify the factual findings and
legal conclusions that support it; and
(b) Provide information as to
requesting a Hearing Officer
determination.
§ 32.15
■
[Removed]
11. Remove § 32.15.
§ 32,16
[Redesignated as § 32.15]
12. Redesignate § 32.16 as § 32.15 and
revise newly redesignated § 32.15 to
read as follows:
■
§ 32.15
Payment.
(a) For purposes of determining who
qualifies as a parent under 42 U.S.C.
3796(a)(5), any biological or legallyadoptive parent whose parental rights
have not been terminated as of the
injury date shall be presumed rebuttably
to be one. If evidence demonstrates that
additional individuals also qualify as
the parent of a public safety officer,
such payment shall be made in equal
shares.
(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.
(c) If more than one individual should
qualify for payment—
(1) Under the Act, at 42 U.S.C.
3796(a)(4)(i), payment shall be made to
each of them in equal shares, except
that, if the designation itself should
manifest a different distribution,
payment shall be made to each of them
in shares in accordance with such
distribution; or
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(2) Under the Act, at 42 U.S.C.
3796(a)(4)(ii), payment shall be made to
each of them in equal shares.
(d) In determining whether an eligible
survivor exists under 42 U.S.C.
3796(a)(2), (4), (5), or (6) such that
payment must be divided amongst such
survivors, the PSOB determining official
shall consider any person (other than as
defined in 42 U.S.C. 3796b(3)(C)) not to
have survived the public safety officer
and thus ineligible, who, being 18 years
of age or older at the date of the officer’s
fatal injury, has not filed an application
for benefits under 42 U.S.C. 3796(a)
within the time prescribed in this part.
§ 32.17
■
■
[Redesignated as § 32.16]
13. Redesignate § 32.17 as § 32.16.
14. Revise § 32.22 to read as follows:
§ 32.22
Time for filing claim.
(a) Unless, for good cause shown, as
defined in § 32.2(e) of this part, the
Director extends the time for filing, no
application shall be considered if it is
filed with the PSOB Office more than
three years after the injury date.
(b) An applicant may file with the
PSOB Office such supporting
documentary, electronic, video, or other
nonphysical evidence and legal
arguments as he may wish to provide.
■ 15. Amend 32.23 as follows:
■ a. Revise the definition of ‘‘Gainful
work’’.
■ b. Remove the definition of ‘‘Medical
certainty’’.
■ c. Amend the definition of
‘‘Permanently disabled’’ and ‘‘Totally
disabled’’ by removing in the
introductory sentence ‘‘certainty’’ and
adding in its place ‘‘probability’’.
The revision to read as follows:
§ 32.23
Definitions.
asabaliauskas on DSK3SPTVN1PROD with RULES
*
*
*
*
*
Gainful work means work activity that
is both substantial and gainful.
(1) Substantial work activity means
work activity that involves doing
significant physical or mental activities
such as work that requires a claimant to
use his or her experience, skills,
supervision, or contribute substantially
to the operation of a business. Evidence
that work activity may not be
substantial includes—
(i) Work involving ordinary or simple
tasks that a claimant cannot perform
without more supervision or assistance
than is usually given other people doing
similar work,
(ii) Work involving minimal duties
that make little or no demands on a
claimant and that are of little or no
monetary value to an employer;
(iii) Work performed under special
conditions take into account a
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Jkt 238001
claimant’s impairment such as work
done in a sheltered workshop; and
(iv) Work offered despite a claimant’s
impairment because of family
relationship, a past association with
claimant’s employer or other
organization to which the claimant was
affiliated with, or an employer’s or
affiliated organization’s concern for
claimant’s welfare.
(2) Gainful work activity means fullor part-time work activity that actually
is compensated or is commonly
compensated, but compensation does
not include reimbursement of incidental
expenses such as parking,
transportation, and meals, or de
minimis compensation.
*
*
*
*
*
■ 16. Revise § 32.24 to read as follows:
§ 32.24
PSOB Office determination.
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—
(a) Specify the factual findings and
legal conclusions that support it; and
(b) Provide information as to
requesting a Hearing Officer
determination.
§ 32.25
■
§ 32.26
■
[Removed]
17. Remove § 32.25.
[Redesignated as § 32.25]
18. Redesignate § 32.26 as § 32.25.
§§ 32.27 and 32.28
■
[Removed]
19. Remove §§ 32.27 and 28.
§ 32.29
[Redesignated as § 32.26]
20. Redesignate § 32.29 as § 32.26 and
revise newly redesignated § 32.26 to
read as follows:
■
§ 32.26 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
§ 32.8, any denial that is not the subject
of such a request shall constitute the
final agency determination.
■ 21. Amend § 32.33 as follows:
■ a. Revise the definition of ‘‘Child of an
eligible public safety officer’’.
■ b. Remove the definition of
‘‘Dependent’’.
■ c. Revise the definition of
‘‘Educational expenses’’.
■ d. Remove the definitions of ‘‘Eligible
dependent’’, and ‘‘Tax year’’.
The revisions read as follows:
§ 32.33
*
PO 00000
*
Definitions.
*
Frm 00025
*
Fmt 4701
*
Sfmt 4702
57371
Child of an eligible public safety
officer means the child of a public safety
officer, which officer is an eligible
public safety officer, but does not
include any individual described in 42
U.S.C. 3796(a)(6).
*
*
*
*
*
Educational expenses means out-ofpocket expenses actually incurred by
the claimant or claimant’s family and
excludes expenses not incurred by
reason of a waiver, scholarship, grant, or
equivalent reduction for 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 threequarter-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.
*
*
*
*
*
■ 22. Revise § 32.34 to read as follows:
§ 32.34
PSOB Office determination.
In the event of the PSOB Office’s
denying a claim, the notice it serves
upon the claimant shall—
(a) Specify the factual findings and
legal conclusions that support the
denial; and
(b) Provide information as to
requesting a Hearing Officer
determination.
■ 23. Revise § 32.41 to read as follows:
§ 32.41
Scope of subpart.
Consistent with § 32.1, this subpart
contains provisions applicable to
requests for Hearing Officer
determination of claims denied under
subpart B, C, or D of this part, and of
claims remanded (or matters referred)
under § 32.54(c).
■ 24. Revise § 32.42 to read as follows:
§ 32.42 Time for filing request for
determination.
(a) Unless, for good cause shown, as
defined in § 32.2(e) of this part, the
Director extends the time for filing, no
claim shall be determined if the request
therefor is filed with the PSOB Office
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Federal Register / Vol. 81, No. 162 / Monday, August 22, 2016 / Proposed Rules
later than thirty-three days after the
service of notice of the denial (under
subpart B, C, or D of this part) of a
claim.
(b) A claimant may file with his
request for a Hearing Officer
determination such supporting
documentary, electronic, video, or other
non-physical evidence and legal
arguments as he may wish to provide.
■ 25. Revise § 32.44 to read as follows:
§ 32.44
Hearing Officer determination.
asabaliauskas on DSK3SPTVN1PROD with RULES
(a) Before determining a claim, the
Hearing Officer shall seek legal advice
from PSOB Counsel.
(b) Upon his determining a claim, the
Hearing Officer shall file a 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, which notice shall specify the
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20:23 Aug 19, 2016
Jkt 238001
factual findings and legal conclusions
that support it, and PSOB Counsel.
(c) 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.
■ 26. Amend § 32.45 as follows:
■ a. In paragraph (d)(1) remove ‘‘and’’
after ‘‘cumulative evidence:’’.
■ b. In paragraph (d)(2), remove the
period after ‘‘witnesses’’ and add in its
place ‘‘; and’’.
■ c. Add paragraph (d)(3)
The addition reads as follows:
PO 00000
Frm 00026
Fmt 4701
Sfmt 9990
§ 32.45
Hearings
*
*
*
*
*
(d) * * *
(3) Shall be the only individual
permitted to examine or question a
claimant apart from that claimant’s
representative, if any.
*
*
*
*
*
§ 32.54
[Amended]
27. Amend § 32.54 by removing
paragraph (b) and redesignating
paragraph (c) as paragraph (b).
■
Dated: August 2, 2016.
Karol V. Mason,
Assistant Attorney General.
[FR Doc. 2016–18811 Filed 8–19–16; 8:45 am]
BILLING CODE P
E:\FR\FM\22AUP2.SGM
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Agencies
[Federal Register Volume 81, Number 162 (Monday, August 22, 2016)]
[Proposed Rules]
[Pages 57347-57372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18811]
[[Page 57347]]
Vol. 81
Monday,
No. 162
August 22, 2016
Part III
Department of Justice
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28 CFR Part 32
Public Safety Officers' Benefits Program; Proposed Rule
Federal Register / Vol. 81 , No. 162 / Monday, August 22, 2016 /
Proposed Rules
[[Page 57348]]
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DEPARTMENT OF JUSTICE
28 CFR Part 32
[Docket No.: OJP (BJA) 1722]
RIN 1121-AA86
Public Safety Officers' Benefits Program
AGENCY: Office of Justice Programs, Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This rulemaking proposes to make the following changes to
current regulations implementing the Public Safety Officers' Benefits
(PSOB) Act: Revising provisions pertaining to the filing of an
application for benefits, revising provisions that define when an
individual is a public safety officer, when an officer has sustained a
line-of-duty injury, when payment of benefits is prohibited, and when
individuals are ineligible for payment; revising provisions pertaining
to the admissibility, sufficiency, and evaluation of evidence submitted
in PSOB claims; revising provisions concerning the fees that may be
charged for representation in PSOB claims, establishing provisions that
prescribe the scope of legal review of PSOB claims and the completeness
of applications for benefits, and revising provisions pertaining to the
definitions of permanent and total disability, payment of benefits,
educational assistance, and other matters necessary to implement the
aforementioned changes.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before October 21, 2016. Comments received by mail
will be considered timely if they are postmarked on or before that
date. The electronic Federal Docket Management System (FDMS) will
accept comments until Midnight Eastern Time at the end of that day.
ADDRESSES: Please address all comments regarding this rule by U.S.
mail, to: Hope Janke, Bureau of Justice Assistance, Office of Justice
Programs, 810 7th Street NW., Washington, DC 20531; or by telefacsimile
to (202) 354-4135. To ensure proper handling, please reference OJP
Docket No. [insert number] on your correspondence. Comments may also be
sent electronically through https://regulations.gov using the electronic
comment form provided on that site. An electronic copy of this document
is also available at the https://regulations.gov Web site. OJP will
accept attachments to electronic comments in Microsoft Word,
WordPerfect, or Adobe PDF formats only.
FOR FURTHER INFORMATION CONTACT: Hope Janke, BJA, OJP, at (202) 514-
6278, or toll-free at 1 (888) 744-6513.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Posting of Public Comments
II. Executive Summary
III. Background
IV. Section-by-Section Analysis
V. Regulatory Requirements
I. Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at https://www.regulations.gov. Information made available for public inspection
includes personal identifying information (such as your name, address,
etc.) voluntarily submitted by the commenter.
The Office of Justice Programs (OJP) does not require you to submit
personal identifying information (such as your name, address, medical
information etc.) as part of your comment. However, if you wish to
submit such information, but do not wish it to be posted online, you
must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the
first paragraph of your comment. You must also locate all the personal
identifying information that you do not want posted online in the first
paragraph of your comment and identify what information you want the
agency to redact. Personal identifying information identified and
located as set forth above will be placed in the agency's public docket
file, but not posted online.
If you wish to submit confidential business information as part of
your comment but do not wish it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, the agency may choose not to post that comment
(or to only partially post that comment) on https://www.regulations.gov.
Confidential business information identified and located as set forth
above will not be placed in the public docket file, nor will it be
posted online.
If you wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
II. Executive Summary
A. Purpose of the Regulatory Action
1. Need for Regulatory Action
The Public Safety Officers' Benefits Act of 1976 (PSOB Act) was
enacted to address the emotional and economic burden placed on the
families of deceased public safety officers by providing the assurance
of a federal benefit to such survivors.\1\ As recently as 2012, the
House Committee on the Judiciary reaffirmed this purpose stating
``[t]he [Public Safety Officers' Benefits Act] . . . is an important
resource for the public safety officers and their families who would
potentially face financial disaster because of the death or
incapacitation of the public safety officer.'' \2\
---------------------------------------------------------------------------
\1\ See S. Rep. No. 94-816, at 3-4, as reprinted in 1976
U.S.C.C.A.N. 2504, 2505.
\2\ H.R. Rpt. 112-548 at 6 (Jun. 25, 2012).
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As of February 1, 2016, 931 claims for benefits were pending before
the agency: 761 initial claims for benefits pending at the PSOB Office,
123 appeals of PSOB Office determinations pending with Hearing
Officers, and 47 appeals of Hearing Officer determinations pending with
the BJA Director. A recent audit by the Department of Justice's Office
of the Inspector General (OIG) found that although the PSOB Program
processed 56% of determined claims within one year of filing, other
claims took significantly longer to resolve.\3\ A Business Process
Improvement (BPI) review of the PSOB Program completed by an
independent contractor in October 2015 noted, among other things, that
``the combination of the lengthy processing times and the growing
backlog of open claims indicates significant changes are needed for the
program to operate efficiently and process existing and new claims in a
timely manner.''
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\3\ U.S. Dept. of Justice, Office of the Inspector General,
Audit of the Office of Justice Programs' Processing of Public Safety
Officers' Benefit Programs Claims, Audit Division 15-21 at 8 (July
7, 2015).
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To fulfill Congress' intent that the PSOB Program remain ``an
important resource'' for public safety officers and their families, the
proposed rulemaking would amend regulations implementing the Act to
implement recommendations from the OIG audit and BPI review, simplify
the process for claimants to establish eligibility, simplify the
program, and implement statutory changes to the PSOB Act.
2. Statement of Authority for Regulatory Action
Under 42 U.S.C. 3796(a)-(b) (authorizing the agency to promulgate
[[Page 57349]]
regulations for the determination of PSOB Program death and disability
claims), 3796c(a) (authorizing the agency to promulgate regulations for
(1) the determination of PSOB Program death and disability claims, (2)
``the recognition of agents or other persons representing claimants''
in PSOB death and disability claims, and (3) the establishment of ``the
maximum fees which may be charged for services performed in connection
with any claim''), 3796d-3(a) (authorizing the agency to promulgate
regulations for implementing PSOB Educational Assistance programs), and
3782(a) (authorizing the agency to establish regulations ``necessary to
the exercise of [its] functions''), the agency is authorized to
promulgate regulations necessary to implement the PSOB Act. The agency
has previously exercised its regulatory authority to define in
regulations many of the terms essential to this rulemaking including
``public agency,'' ``injury,'' ``line of duty,'' ``line of duty
injury,'' ``official capacity,'' ``firefighter,'' ``involvement [in
crime and juvenile delinquency control or reduction],'' ``gross
negligence,'' and ``voluntary intoxication.''
B. Summary of Major Provisions
The proposed rule would make the following changes in response to
the Dale Long Public Safety Officers' Benefits Improvement Act of 2012
(Dale Long Act), as provided in sec. 1086 of Public Law 112-239:
Revise the definition of ``child of a public safety
officer;''
Define ``line of duty activity or action'' for members of
rescue squads and ambulance crews;
Revise the definition of ``officially recognized or
designated public employee member of a squad or crew;''
Remove the definition of ``public employee member of a
squad or crew;'' and
Remove for purposes of educational assistance definitions
of ``dependent,'' ``eligible dependent,'' and ``tax year.''
The proposed rule would make the following changes in response to
identified ambiguities and gaps in existing regulations, as well as
opportunities to simplify and improve the program's administration:
Expand the definitions of ``firefighter,'' and
``involvement [in crime and juvenile delinquency control or
reduction]'' (a necessary component to qualify as a ``law enforcement
officer'') to include firefighter and law enforcement officer trainees
who are participants in an official training program required for
employment or certification as a firefighter or a law enforcement
officer;
Expand the definitions of ``line of duty activity or
action'' and ``official capacity'' to include a public safety officer's
actions to save human life in certain limited circumstances but without
regard to jurisdiction;
Introduce a definition of ``volunteer fire department''
which provides that a department satisfying the definition qualifies as
an ``instrumentality'' of a public agency thereby enabling otherwise
qualified volunteer firefighters to more easily establish ``public
safety officer'' status;
Replace the current standard for determining admissibility
of evidence (the Federal Rules of Evidence) with the requirement that
evidence be ``credible, probative, and substantial;''
Replace existing prerequisite certification requirements
for death and disability claims with a single provision authorizing
PSOB determining officials to require that a claimant provide any
evidence necessary to determine eligibility;
Establish a limited exception to the requirement that a
claimant must establish all issues by the standard of proof of ``more
likely than not;'' when evidence is equivalent on a particular issue,
the determining official will resolve such issue in the claimant's
favor;
Change from ``clear and convincing'' to ``more likely than
not'' the standard of proof required to establish (1) an officer was
injured because of his or her status as a public safety officer, (2)
total and permanent disability, and (3) parent-child relationship;
Expand the types of permissible fee arrangements for
representative services, establish a definition for ``attorney'' and
limit paid representation in PSOB claims to such individuals;
Establish, consistent with authority in 42 U.S.C. 3796c(a)
providing that the Bureau of Justice Assistance may prescribe in
regulations ``the maximum fees which may be charged for services
performed in connection with any claim,'' a cap on fees of 12 percent
of the total payment available to a claimant and establish fee amounts
that are presumptively reasonable in claims determined at the PSOB
Office level (8 percent) and at the Hearing Officer or BJA Director
level (10 percent);
Revise the definition of ``totally disabled'' and related
provisions to address circumstances when a claimant performs work that
is compensated but not substantial; and
Require individuals seeking benefits to file minimum
required documents (a complete application) before the agency will
treat the application as a claim for benefits.
C. Projected Costs and Benefits
The proposed rule is not economically significant as defined in
Executive Orders 12866 and 13563. The estimated annual increase in PSOB
Program death and disability benefit costs is $3,398,810, which equates
to 10 additional determinations approving death or disability benefits
as compared to the number of annual approvals under existing rules.
There is no significant projected increase in administrative or
personnel costs. OJP estimates that the rulemaking will result in (1)
reduced burden for claimants in establishing eligibility for benefits,
(2) timelier processing of all claims for death and disability
benefits, and (3) improved delivery of benefits to eligible claimants.
III. Background
The Public Safety Officers' Benefits (PSOB) Program, 42 U.S.C. 3796
et seq. (established pursuant to the Public Safety Officers' Benefits
Act of 1976), is administered by the Bureau of Justice Assistance (BJA)
of the Office of Justice Programs (OJP), U.S. Department of Justice.
Generally speaking, the PSOB Program provides a one-time financial
benefit, currently adjusted for inflation at $339,881, to the
statutorily-eligible survivors of public safety officers who die as the
direct and proximate result of personal injuries sustained in the line
of duty, as well as educational assistance for their spouses and
eligible children. Alternatively, the PSOB Program also provides the
same inflation-adjusted one-time financial benefit directly to public
safety officers determined to be permanently and totally disabled as
the direct and proximate result of personal injury sustained in the
line of duty, as well as educational assistance for their spouses and
eligible children.
Under 42 U.S.C. 3796(a), an individual seeking PSOB Program death
benefits must establish the following: (1) That the deceased was a
public safety officer as defined in 42 U.S.C. 3796b, (2) that the
officer died as the direct and proximate result of an injury, (3) that
the officer's injury was sustained in the line of duty, (4) that the
claimant is an eligible beneficiary as identified in 42 U.S.C.
3796(a)(1)-(6), and (5) that no limitations in 42 U.S.C. 3796a, e.g.,
the decedent's voluntary intoxication or gross negligence, bar
recovery. Under 42 U.S.C. 3796(b), an individual seeking PSOB Program
disability benefits must establish many of the same facts: (1) That the
claimant was a public safety
[[Page 57350]]
officer as defined in 42 U.S.C. 3796b, (2) that the officer is
permanently and totally disabled, (3) that such disability was the
direct and proximate result of an injury, (4) that the officer's injury
was sustained in the line of duty, and (5) that no limitations in 42
U.S.C. 3796a bar recovery. Under 42 U.S.C. 3796d-1, the spouse or child
of a public safety officer determined to have been killed or
permanently and totally disabled as the direct and proximate result of
an injury sustained in the line of duty is eligible under 42 U.S.C.
3796d-1 to receive financial assistance for purposes of pursuing a
program of higher education provided that the claimant is attending or
has successfully completed a qualified education program.
The agency last published comprehensive regulations for the PSOB
Program in December 2008. See 73 FR 76520 (Dec. 17, 2008). Since that
time, the Dale Long Act was enacted, which made several significant
amendments to the PSOB Act. Recently, in a separate notice of proposed
rulemaking (NPRM) published in the Federal Register on on July 15,
2016, 81 FR 46019, the agency proposed regulations that would, among
other things, implement the Dale Long Act's provisions offsetting
certain payments, and ensure that the regulations reflect updated
statutory language regarding the presumption in 42 U.S.C. 3796(k)
covering certain heart attacks, strokes, and vascular ruptures. The
present NPRM addresses other provisions in the Dale Long Act that the
agency believes would benefit from rulemaking.
In addition to the Dale Long Act necessitating regulatory
revisions, the agency has identified the need to revise its regulations
to reflect current interpretations and practice. Since the last
comprehensive regulatory revision in 2008, OJP has determined over
2,582 PSOB claims.\4\ In so doing, it has identified ambiguities and
gaps in existing regulations, as well as opportunities to simplify and
improve the program's administration, while maintaining program
integrity.
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\4\ Claims determined at the PSOB Office, Hearing Officer, and
BJA Director levels between December 17, 2008 and February 1, 2016.
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IV. Section-by-Section Analysis
Section 32.2 Computation of Time; Filing
Section 32.2 provides general definitions and guidance as to when
something is ``filed'' with the PSOB Office or other PSOB determining
officials. Other regulations, e.g., 28 CFR 32.12(a), establish time
frames for when a particular type of claim must be filed and provide
that the BJA Director may waive the time requirements for good cause
shown. Neither the PSOB Act nor its implementing regulations, however,
defines what constitutes ``good cause.'' To establish uniform and
transparent criteria for consistently evaluating what constitutes good
cause, the proposed rule would add a new paragraph (e) describing the
circumstances that may constitute good cause and warrant a waiver
permitting an individual to file out of time. Under proposed Sec.
32.2(e), circumstances beyond the individual's control such as lengthy
illness or physical or mental incapacity, detrimental reliance on
erroneous information provided by the public safety officer's agency,
public agency determination of the officer's (or survivor's)
eligibility or entitlement to death or disability benefits after the
time for filing has passed, or other unavoidable circumstances showing
that an individual could not have reasonably known about the time
limits for filing may establish good cause. Examples of evidence
establishing ``good cause' would include a statement or affidavit from
the individual seeking the extension or other person with knowledge of
the particular basis for the extension. The proposed rule would limit
the scope of the aforementioned exceptions by providing that,
consistent with current practice, a lack of knowledge about the PSOB
Program is not a valid basis for establishing good cause.
In addition, in preparation for going to a ``paperless'' claims
processing system, proposed Sec. 32.2(h) would permit the BJA
Director, after publishing a Notice in the Federal Register consistent
with 5 U.S.C. 552(a)(1)(C), and providing reasonable notice through the
PSOB Program Web site, to require that all claims and supporting
documents be filed in electronic form.
Section 32.3 Definitions
Section 32.3 provides definitions applicable to all three PSOB
Program components, death, disability, and education. OJP proposes to
amend the existing definitions in Sec. 32.3 as follows:
Agent: Under 42 U.S.C. 3796c, the agency is authorized to
promulgate ``regulations governing the recognition of agents or other
persons representing claimants.'' The agency has exercised its
regulatory authority to establish in current Sec. 32.7 provisions
governing the circumstances under which representatives may charge fees
for representative services in a claim for benefits under the PSOB Act.
However, the current rules do not define the categories of individuals
authorized to provide representative services in PSOB claims and the
agency believes that such definitions are necessary for the
implementation of proposed rules providing the categories of
individuals that may charge fees for representative services. The
proposed rule would define ``agent'' as an individual who represents
persons seeking PSOB Program benefits and is not an attorney.
Attorney: Pursuant to the authority granted by 42 U.S.C.
3796c(a) providing that the agency may promulgate regulations for
purposes of recognizing the agents or other persons representing
claimants under the PSOB Act, the proposed rule would define the term
``attorney'' as a member in good standing of a State bar. The agency
believes that membership in good standing in a State bar is a reliable
indicator that such a person would be capable of providing competent
and ethical representation in a claim before the agency. This rule is
intended to work in conjunction with proposed Sec. 32.7, which would
limit the ability to seek fees for representative services to attorneys
as defined in this provision.
Authorized commuting: the proposed rule would clarify that
a public safety officer's return travel from responding to a fire,
rescue, or police emergency is considered to be in the line of duty.
Child of a public safety officer: From the time of the
enactment of the PSOB Act in 1976,\5\ until January 1, 2013, an
individual's status as a child was determined based on the individual's
status at the time of the public safety officer's death. Effective
January 2, 2013, for all claims pending before BJA on that date, or
filed or accruing thereafter, an individual's status as a child is
determined at the time of the public safety officer's fatal (or
catastrophic, for disability claims), injury.'' The revised rule
implements the statutory change by removing provisions inconsistent
with the amendment such as those that refer to a ``child [] adopted by
[the officer] after the injury date'' and retaining the requirement
that an officer's parental rights must be intact as of the officer's
injury date to establish that an individual was ``a child of a public
safety officer.''
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\5\ Public Law 94-430, 90 Stat. 1346, 1347 (1976).
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Department or agency: The PSOB Act, for most purposes,
defines a public safety officer as an individual serving a public
agency in an official capacity as a law enforcement officer,
firefighter, or chaplain. 42 U.S.C. 3796b(9)(A). As defined in 42
U.S.C. 3796b(8), the term
[[Page 57351]]
public agency generally refers to a unit of government at the federal,
state, or local level, and includes subordinate entities of such
governments such as a ``department'' or ``agency'' as well as an
``instrumentality'' of any of the aforementioned entities. Nothing in
the statutory definition of ``public agency'' or the regulatory
definitions of ``instrumentality'' or ``department or agency'' in 28
CFR 32.3 expressly addresses or covers those entities created by
interstate compact, many of which perform public safety activity
pursuant to the terms of the compact (e.g., the Washington Metropolitan
Area Transit Authority or the Port Authority of New York and New
Jersey). Because OJP has consistently interpreted the terms ``public
agency'' and ``department or agency'' to include such entities, it
proposes to add a new provision in 28 CFR 32.3 (defining Department or
agency) to make this interpretation clear. Under the proposed rule, the
definition of ``department or agency'' would include an entity created
by interstate compact between two or more States or between a State(s)
and the District of Columbia with the consent of the United States
Congress.
Determination: Consistent with the proposed removal of
current Sec. 32.27, which provides claimants with the option to seek
reconsideration of an adverse disability determination, the proposed
rule would eliminate from the definition of ``determination'' reference
to such a motion.
Divorce: Under the current regulation, a spouse or
purported spouse of an individual may be found to be ``divorced'' for
purposes of the PSOB Program if, after the marriage or purported
marriage, the spouse or purported spouse holds himself out as being
divorced from, or otherwise not married to the individual, holds
himself out as being married to another individual, or is a party to a
marriage ceremony with another individual. The agency's experience with
such non-judicial divorce, particularly with long-estranged parties, is
that evidence of such acts is inherently unreliable. To make more
reliable agency findings of divorce and simplify the administration of
the program, the proposed rule would eliminate as a basis for finding
``divorce'' all dissolutions of marriage other than ordered by a court.
Employee: The proposed rule would clarify, pursuant to the
statutory limitation in 42 U.S.C. 3796a(5), that the term does not
include any active-duty member of the armed forces.
Firefighter: Absent from the language of the PSOB Act is
any mention of whether public safety officer candidates or trainees
qualify as public safety officers. In a recent report, the House
Judiciary Committee noted that ``certain provisions of the [PSOB Act]
have the effect of excluding from the program some classes or
subclasses of safety officers and of trainees who might better be
included under certain circumstances,'' including police academy and
firefighter trainees.\6\
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\6\ H.R. Rpt. 112-548 at 8-9 (June 25, 2012).
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Under current regulations, a firefighter trainee, even if
participating in a fire suppression exercise of the trainee's public
agency that is mandatory for his or her certification or employment as
a firefighter by his or her public agency, generally does not qualify
as a ``public safety officer'' for purposes of the PSOB Act. This is
because the regulatory definition of ``firefighter'' requires that a
firefighter possess, among other things, the legal authority and
responsibility to engage in the suppression of fire outside of the
training environment to be considered a ``public safety officer.'' As a
result, such trainees are ineligible except where a trainee has the
legal authority and responsibility to act without limitation at the
time of the injury.\7\
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\7\ As a result of the current definition of ``firefighter,'' a
trainee firefighter who is killed or permanently disabled while
participating in an official training program of his or her public
agency, that is mandatory for the trainee's certification or
employment as a firefighter with that particular public agency, is
ineligible for benefits under the PSOB Act by virtue of not
qualifying as a ``public safety officer.''
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As demonstrated by the claims for death benefits submitted on
behalf of trainees, the hazards faced while participating in training
mandatory to serve a public agency as a firefighter (e.g., the
suppression of fire), are similar to that encountered in serving the
public. Accordingly, OJP believes that a limited expansion of the
current rule to include trainees is warranted.
The proposed rule expands the definition of ``firefighter'' to
cover an individual who participates in an official training program of
the officer's public agency involving the suppression of fire or
hazardous-material response that is mandatory for the individual's
employment or certification as a firefighter with a particular public
agency. The proposed rule would permit payment on behalf of any
individual who died or to any who was permanently and totally disabled
as the direct and proximate result of an injury sustained while
participating in such training.
Gross negligence: Under 42 U.S.C. 3796a(3), the agency is
prohibited from paying benefits when, at the time of the officer's
fatal or catastrophic injury, the officer is performing his or her
duties in a grossly negligent manner. Under the current definition in
28 CFR 32.3, ``gross negligence'' is established when the officer's
performance of duty indicates an extraordinary departure from the
appropriate degree of care, e.g., a heedless, wanton, or reckless
action, and occurs in the face of significant hazards, where serious
injury or damage is likely to follow, or where great danger is readily
apparent. The agency's experience is that the current rule is difficult
to apply in part due to the multiple terms defining the degree of
deviation from the standard of care required to establish such
negligence as well as the breadth of circumstances under which such a
deviation would establish such negligence.
The proposed rule streamlines the definition by using a single
term, ``reckless,'' to describe the deviation from the appropriate
standard of care, and by using a single set of conditions, ``under
circumstances where it is highly likely that serious harm will
follow,'' to describe the conditions under which such misconduct would
implicate the statutory bar to payment in 42 U.S.C. 3796a(3). The
proposed rule also provides that the standard for measuring a public
safety officer's conduct is that of a similarly situated public safety
officer. The proposed rule is intended to simplify the agency's
application of this statutory bar to payment and limit its application
to those circumstances in which it is apparent that the officer's gross
negligence was a substantial contributing factor in the officer's
injury.
Injury: To establish an ``injury'' under current 28 CFR
32.3, a public safety officer must have sustained a traumatic physical
wound or traumatized physical condition of the body that is the direct
and proximate result of an external force or other factor listed in the
definition, including, among other things, chemicals, bacteria, or
climatic conditions.
The current rule expressly excludes from coverage as an injury
``occupational disease'' or ``any condition of the body caused or
occasioned by stress or strain,'' both of which are defined further in
28 CFR 32.3. Under current regulations, conditions caused by stress or
strain and thus excluded from coverage as an injury generally include
those caused by physical exertion; chronic, cumulative, and progressive
conditions; cardiovascular disease; and heart attacks, strokes, and
vascular ruptures.
The agency's experience is that the current regulatory requirement
that an
[[Page 57352]]
injury must in all cases be the result of an external force or factor,
taken together with the current ``stress or strain'' exclusion,
excludes from coverage under the PSOB Act all physical conditions
caused by exertion. As a result of the current definitions, an
officer's death or disability from an acute and immediate physical
condition such as exertional heatstroke or rhabdomyolysis \8\ would not
be eligible for benefits. While retaining the longstanding
interpretation that an injury under the PSOB Act is a traumatic
physical wound or traumatized physical condition of the body directly
and proximately caused by external forces or factors, the proposed rule
would provide, consistent with BJA's current interpretation, that
injury also includes acute and immediate musculoskeletal strain or
muscle damage, and heatstroke, each of which may be established as an
acute condition, and without an external force or factor.
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\8\ ``Rhabdomyolysis is the breakdown of muscle tissue that
leads to the release of muscle fiber contents into the blood. These
substances are harmful to the kidney and often cause kidney
damage.'' It may be caused by, among other things, ``severe
exertion, such as marathon running or calisthenics.'' National
Institutes of Health (MedlinePlus), Rhabdomyolysis, https://www.nlm.nih.gov/medlineplus/ency/article/000473.htm (accessed Feb.
11, 2016).
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In addition, the agency's experience in determining claims suggests
that the definition of injury should be revised to make clear current
agency interpretations that may not be obvious or intuitive to
claimants and other stakeholders. The current definition of injury does
not reflect the agency's interpretation that an increase in the
severity of an officer's pre-existing physical wound or condition--
regardless of the cause of the pre-existing wound or condition--is an
injury under the PSOB Act so long as the increase in severity is itself
the direct and proximate result of a line of duty injury. The proposed
rule would provide that such aggravation of pre-existing conditions
would constitute an injury. In stating that certain aggravation of a
pre-existing injury may constitute an injury for purposes of the PSOB
Program, the proposed rule clarifies that a pre-existing injury is not
automatically excluded from consideration as the substantial factor in
an officer's death or permanent and total disability.
Based on the claims it has received, the agency believes that the
regulatory definition of ``injury'' together with the separate
definition of stress or strain, have proven very challenging for
claimants to understand and apply, particularly to fatal heart attacks,
strokes, and vascular ruptures. The agency believes that this is in
part due to the absence from the current definitions the agency's
longstanding interpretation that heart attacks and strokes, absent an
external force or factor shown to have directly and proximately caused
such condition, are not injuries. The agency's interpretation dates
back to the first PSOB regulations published in 1977, 42 FR 23252,
23260 (May 6, 1977), and has been upheld in a series of court
decisions.\9\
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\9\ See e.g., Juneau v. Dept. of Justice, 583 F.3d 777, 782-83
(Fed. Cir. 2009) (holding that an officer's heart attack following a
foot chase of shoplifting suspects did not warrant payment of PSOB
death benefits as the officer's traumatic condition, i.e., a heart
attack, was not caused by an injury as defined in PSOB regulations);
see also Smykowski v. United States, 647 F.2d 1103, 1106 (Ct. Cl.
1981) (concluding that an officer's physical struggle with a suspect
immediately preceding a fatal heart attack, although different from
stress or strain and cognizable itself as a traumatic event, was not
an injury under the PSOB Act.)
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Heart attacks, strokes, and vascular ruptures are eligible for
death benefits under the presumption created by the Hometown Heroes
Survivors' Benefits Act of 2003 (Pub. L. 108-182) (Hometown Heroes Act)
and amended by the Dale Long Public Safety Officers' Benefits
Improvement Act of 2012 (Pub. L. 112-239). Together, these amendments
have established a rebuttable presumption that a heart attack, stroke,
or vascular rupture satisfying the requirements of 42 U.S.C. 3796(k)
constitutes a personal injury sustained in the line of duty. Generally
speaking, the presumption is established in cases where a public safety
officer sustains heart attack, stroke, or vascular rupture while
engaging in a situation involving ``nonroutine stressful or strenuous
physical [line of duty] . . . activity'' or participating in a training
exercise ``involving nonroutine stressful or strenuous physical
activity'' (or within 24 hours of such engagement or participation) and
the heart attack, stroke, or vascular rupture is the direct and
proximate cause of the officer's death. Though not directly related to
the definition of injury under Sec. 32.3, in an NPRM published in the
Federal Register on July 15, 2016, 81 FR 46019, the agency proposed
regulations that would define the circumstances under which the
presumption is rebutted in amended 42 U.S.C. 3796(k).
To make the agency's interpretation clear, the proposed rule would
eliminate the separate definition of stress or strain and would
incorporate those conditions excluded by that definition directly into
the definition of injury. In so doing, the proposed rule would identify
specific types of conditions excluded from the definition of injury
including: ``any chronic, cumulative, or progressive condition of the
body,'' and ``cardiovascular disease.'' To clarify for claimants and
the general public that, under 42 U.S.C. 3796(k), certain heart
attacks, strokes, and vascular ruptures may be presumed to be a
personal injury, the proposed rule would so state.
Similarly, the current definition of injury does not, by itself,
clearly reflect the agency's longstanding interpretation that mental
health conditions including post-traumatic stress disorder (PTSD) or
anxiety do not constitute an injury, and therefore, the basis of a
disability, under the PSOB Act. By way of background, the Law
Enforcement Assistance Administration (LEAA) defined the term
``traumatic injury'' in 1977 as excluding ``stress and strain.''
Referring to the legislative history of the PSOB Act, and, in
particular, the definition of ``personal injury'' in the House
Judiciary Committee Reports, the LEAA stated that ``[d]eaths caused by
traumatic injuries do not therefore include deaths directly
attributable to exertion or stress encountered in the performance of
duty.'' \10\ Further supporting LEAA's original interpretation, a 2001
case in the United States Court of Appeals for the Federal Circuit
found permissible BJA's regulatory definition ``exclud[ing] from the
definition of `traumatic injury' stress and strain.'' \11\ In
explaining its conclusion, the court stated that ``the legislative
history [of the PSOB Act] points away from an intent on the part of
Congress to have the statutory term `personal injury' include mental
strain.'' \12\ More recently, in a House Report describing, among other
things, amendments to the statute authorizing payment of disability
benefits, 42 U.S.C. 3796(b), the Committee on the Judiciary stated that
``a disability benefit is payable only when the Department determines
that a public safety officer has sustained a line of duty injury whose
direct physical consequences permanently prevent the performance of any
gainful work.\13\
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\10\ 42 FR 23252, 23260, May 6, 1977.
\11\ Yanco v. United States 258 F.3d 1356, 1363 (Fed. Cir.
2001).
\12\ Id. at 1364.
\13\ H.R. Rep. No. 112-548 at 13 (2012) (emphasis added).
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To better communicate the agency's longstanding interpretation
regarding the ineligibility of mental health conditions for PSOB
Program benefits, the revised definition of injury would expressly
provide that mental health
[[Page 57353]]
conditions are excluded from consideration as an ``injury.''
Injury date: Under current regulations defining ``injury
date,'' such date generally means the time of the line of duty injury
that directly and proximately resulted in the death or permanent and
total disability of the public safety officer. Current regulations do
not define when an injury occurs for purposes of 42 U.S.C. 3796(k) for
purposes other than ``determining beneficiaries under the Act.'' As the
``injury date'' in a claim based on 42 U.S.C. 3796(k) is relevant for
other purposes (e.g., determining voluntary intoxication), the proposed
rule would define injury date in such a claim. The proposed rule would
provide that, for all purposes relating to 42 U.S.C. 3796(k), injury
date means the time of the officer's qualifying engagement or
participation referred to in the Act at 42 U.S.C. 3796(k)(1)).
Involvement: Under current regulations, a law enforcement
officer trainee, even while participating in an official training
program that is mandatory for his or her certification or employment as
a law enforcement officer (e.g., firearms training), is generally not a
``public safety officer'' for purposes of the PSOB Act. This is because
the regulatory definition of ``involvement'' requires that a law
enforcement officer possess, among other things, the unrestricted
``legal authority and -responsibility'' to arrest or apprehend . . .
persons for violations of criminal law to qualify as a ``public safety
officer.'' As a result, such trainees are ineligible except in the
unusual circumstances in which a trainee has the legal authority and
responsibility to act as a law enforcement officer without limitation
at the time of the injury.\14\
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\14\ As a result of the current definition of ``involvement,'' a
necessary element of the definition of ``law enforcement officer,''
a trainee police officer who is killed or permanently disabled while
participating in an official training program of his or her public
agency, that is mandatory for the trainee's certification or
employment as a police officer with that particular public agency,
is ineligible for benefits under the PSOB Act by virtue of not
qualifying as a ``public safety officer.''
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As demonstrated by the claims for death benefits submitted on
behalf of trainees, the hazards faced while participating in training
mandatory to be serve a public agency as a law enforcement officer
(e.g., firearms training, unarmed self-defense, or physical training)
are similar to what may be encountered in serving the public.
Accordingly, a limited expansion of the current rule to include such
circumstances is warranted.
The proposed rule expands the definition of ``involvement'' to
cover as a ``law enforcement officer'' any individual who participates
in an official training program of the individual's public agency that
is mandatory for that individual's employment or certification in
certain law enforcement positions such as a police officer, corrections
officer, probation officer, or equivalent. The proposed rule would
permit payment on behalf of any individual who died or to any who was
permanently and totally disabled as the direct and proximate result of
an injury sustained while participating in such mandatory training.
Line of duty activity or action: The proposed rule would
provide that certain activities or actions of a law enforcement officer
or firefighter, performed under emergency circumstances and necessary
to save or protect human life, in any jurisdiction, would be deemed to
be line of duty activity or action for purposes of the PSOB Act.
Under 42 U.S.C. 3796(a) and (b), the agency pays death or
disability benefits when it determines that a public safety officer has
died or become permanently and totally disabled as ``the direct and
proximate result of a personal injury sustained in the line of duty.''
Under current regulations, a public safety officer's action or activity
and resulting injury is ``in the line of duty'' only if it is an action
or activity that the officer is legally authorized or obligated to
perform as a public safety officer and the officer's public agency
recognizes it as such.\15\ Where an officer acts outside his or
jurisdiction, even if acting in an emergency to save human life, such
actions are generally outside the legal authority of the officer's
public agency and, as a result, excluded from PSOB Act coverage as not
``in the line of duty.''
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\15\ See 28 CFR 32.3 (defining Line of duty activity or action).
---------------------------------------------------------------------------
As guardians of the public, public safety officers are trained to
and called upon to engage in extraordinary acts of self-sacrifice and
bravery to save the lives of others. However, these acts may not always
occur within an officer's jurisdiction. The regulations which require
that an officer's public agency affirm, or at least, not deny, that a
public safety officer had the legal authority and responsibility to
perform such actions, as currently written, do not take into account
the extraordinary situations which require an urgent and immediate
response and do not afford a public safety officer an opportunity to
seek approval or authorization to act.
Within the context of the PSOB Program, BJA recognizes that public
safety officers, by virtue of their training, expertise, and
experience, are often compelled to act where human life is endangered.
Moreover, a public safety officer's training and experience make them
uniquely qualified to intervene to save human life. Accordingly, BJA
believes that the actions of public safety officers, i.e., firefighters
and law enforcement officers, in these extraordinary and limited
circumstances should be covered by the PSOB Program.
As the PSOB Act does not define ``line of duty'' and expressly
delegated to the agency in 42 U.S.C. 3796(c) the authority to
promulgate implementing regulations, the agency may interpret the term
``line of duty'' in regulations so long as the interpretation is not
arbitrary, capricious, or contrary to law.\16\ The agency's proposed
regulatory interpretation recognizes, consistent with the language of
42 U.S.C. 3796(a) and (b), that ``[t]he word `duty' connotes a legal or
moral obligation'' and that ``[i]n reference to public safety officers,
`duty' refers to the obligation to protect the public in their capacity
as firefighters or police officers.'' \17\ The proposed rule recognizes
the connection between an injury sustained by an officer in the course
of performing a lifesaving act, even an officer who may be off-duty and
outside of his or her jurisdiction, and the officer's duty as a public
safety officer to protect the public. Moreover, the proposed rule is
consistent with existing provisions that deem an officer's injury to be
in the line of duty even in circumstances when the officer may have
been off duty and without regard to the officer's location--when ``such
injury resulted from the injured party's status as a public safety
officer.'' \18\ Other provisions of federal law similarly recognize
public safety officers' special role by granting rights beyond those
enjoyed by the public at
[[Page 57354]]
large \19\ and recognizing that local public safety officers often
serve the public in areas other than the officer's immediate
jurisdiction.\20\ Finally, in recognizing and covering the risks faced
by public safety officers in carrying out their obligation to protect
the public, the limited expansion in the proposed rule is also
consistent with one of the purposes of the PSOB Act, to recruit and
retain public safety officers.
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\16\ See Hawkins v. United States, 469 F.3d 993, 1004 (Fed. Cir.
2006) (providing that, as Congress did not define line of duty in
the PSOB Act, ``the BJA's regulatory interpretation of `line of
duty' . . . must be upheld unless it is ``arbitrary, capricious, or
manifestly contrary to the statute'') (other citation omitted). Cf.
Davis v. United States, 50 Fed.Cl. 192, 200 (2001) (``Congress has
spoken on the issue of `line of duty' and its scope. A public safety
officer is killed in the `line of duty' when his or her death
results from the performance of any duty required by law or terms of
employment or as a consequence of his or her identity as a safety
officer.'').
\17\ Davis v. United States, 50 Fed.Cl. 192, 207 (2001).
\18\ See 28 CFR 32.3 (defining Line of duty injury).
\19\ See, e.g., Law Enforcement Officers Safety Act of 2004,
Public Law 108-277, 118 Stat. 865, codified at 18 U.S.C. 926B, 926C
(granting ``qualified law enforcement officers'' the right to carry
concealed weapons across state lines, notwithstanding provisions of
state law prohibiting or limiting concealed weapons).
\20\ See, e.g., 5 U.S.C. 8191 (authorizing federal workers'
compensation benefits to local law enforcement officers injured
while pursuing or apprehending persons sought for crimes against the
United States or material witnesses for federal prosecutions).
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The proposed rule would add to the definition of ``line of duty
action or activity'' a narrow exception that would deem the
extraordinary acts of a firefighter or law enforcement officer to save
a human life as ``in the line of duty.'' To maintain the integrity and
limited nature of the exception, such acts would be limited to those
circumstances in which (1) the officer's actions constituted public
safety activity, (2) the officer's actions were performed in the course
of responding to an emergency situation requiring prompt actions to
save human life, (3) the officer did not create the emergency situation
to which he or she responded, (4) the human life the officer attempted
to save or saved was other than that of the officer, and (5) the
officer's acts were not contrary to the law of the jurisdiction in
which performed.
Providing a narrowly drawn exception to the definition of line of
duty is consistent with the purpose of the PSOB Act to extend coverage
to firefighters and law enforcement officers who sacrifice their own
their lives to save the life of others, or who are catastrophically
injured while doing do. The proposed rule will further prevent the
anomaly of such a public safety officer being recognized or honored
posthumously for extraordinary acts of heroism through BJA programs
such as the Public Safety Officer Medal of Valor \21\ while at the same
time being denied, or having their family denied, PSOB benefits because
of narrowly drawn eligibility criteria do not take into account these
extraordinary situations.
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\21\ Public Law 107-12, as amended, established the Public
Safety Officer Medal of Valor, which is awarded by the President, in
the name of Congress, to public safety officers for ``extraordinary
valor above and beyond the call of duty.''
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As provided in sec. 1086 of Public Law 112-239, the Dale Long Act
amended the PSOB Act by adding a new provision defining as a public
safety officer those members of a rescue squad or ambulance crew who,
as authorized, are engaging in rescue activity or providing emergency
medical services.\22\ Notably, the amendment removed the requirement
that an individual member be a ``public employee'' and expanded
membership to ``officially recognized or designated employee or
volunteer member[s]'' of public agencies as well as those employee or
volunteer members of certain ``nonprofit entit[ies] serving the
public.''
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\22\ 42 U.S.C. 3796b(9)(D).
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Under the proposed rule, the ``line of duty activity or action''
definition would reflect the Dale Long Act's expansion of PSOB Program
coverage to employee or volunteer members of ambulance crews and rescue
squads operated by certain nonprofit entities serving the public. The
proposed rule would also implement the reduced scope of PSOB Program
coverage in 42 U.S.C. 3796b(9)(D) for all employee and volunteer
members of public agency and nonprofit entity ambulance squads and
rescue crews based on statutory language limiting public safety officer
status to those circumstances in which a member of an ambulance crew or
rescue squad is actually engaging in rescue activity or providing
emergency medical services.\23\
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\23\ As the statutory language of the 2013 amendment limits the
scope of coverage to circumstances in which the rescue squad or
ambulance crew member is engaging in rescue activity or the
provision of emergency medical services ``as authorized or licensed
by law and by the applicable agency or entity,'' OJP is unable to
establish in regulations an exception for actions taken to save
human life outside the member's jurisdiction.
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Line of duty injury: Under current regulations, an injury
is sustained in the line of duty if it was suffered during performance
of a ``line of duty activity or a line of duty action'' or ``authorized
commuting.'' \24\ In such circumstances, it is the nature of the
officer's actions that determines whether an injury is ``in the line of
duty'' and therefore eligible for benefits. Existing PSOB regulations
provide an exception to this general principle in that an injury is
deemed to be in the line of duty if clear and convincing evidence
demonstrates that the injury resulted from a public safety officer's
status as a public safety officer. Under the current rule, it is the
actions and motivation of the assailant that determine whether an
injury is in the line of duty and eligible for benefits; consequently,
every injury inflicted upon an off-duty public safety officer is not
automatically considered to be in the line of duty. Rather, it must be
shown that the motivation for injuring the officer was the officer's
status as a public safety officer as opposed to a personal dispute or
other event unrelated to the officer's status as a public safety
officer.
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\24\ 28 CFR 32.3 (defining Line of duty injury).
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The agency's experience is that this provision, although
appropriately narrow, has proved particularly burdensome for claimants
in those claims in which both the officer and the assailant are
deceased and there is little or no evidence as to the motivation for
injuring the officer. Adding to a claimant's challenges in establishing
a line of duty injury in such claims, the current regulation also
requires that such injury must be established by clear and convincing
evidence rather than the standard of proof of ``more likely than not''
applicable to nearly all other determinations in the PSOB Program. The
agency believes that two minor changes to the current regulation would
enable claimants to establish eligibility in such claims and maintain
the necessarily limited nature of the provision.
The proposed rule would change from ``convincing'' to ``more likely
than not'' the standard of proof for establishing that an officer was
injured due to the officer's status as a public safety officer. In
doing so, the proposed rule would address those situations in which the
only evidence of the assailant's intent to injure the officer is
circumstantial. As an assailant's intent to injure an officer on
account of the officer's status is often intertwined with or manifested
in an intent to retaliate against an officer for actions taken in the
line of duty by the officer injured or other public safety officers,
the proposed rule would also clarify that injury sustained by a public
safety officer in retaliation for line of duty actions or activities is
a valid basis for establishing line of duty injury as a result of an
officer's status.
Official capacity: In addition to the requirement in 42
U.S.C. 3796b(9)(A) and implementing regulations that an individual must
possess the qualifications applicable for the particular category of
officer to establish public safety officer status, the evidence must
also establish that the individual law enforcement officer and
firefighter was serving a ``public agency in an official capacity'' at
the time of injury. Public agency is defined in 42 U.S.C. 3796b(8) and
generally refers to a unit of government at the federal, state, or
[[Page 57355]]
local level, subordinate entitles of such governments including a
``department'' or ``agency,'' or an instrumentality of any of the
aforementioned entities ``Official capacity'' is not defined in the
PSOB Act; however, the agency has exercised its regulatory authority to
define it in 28 CFR 32.3 as based on two criteria. First, an individual
must be officially acknowledged by the agency to be functionally within
or part of the agency; an individual's status as a contractor, by
itself, does not establish that an individual is functionally within a
public agency. Second, the public agency must accept legal
responsibility for the acts and omissions of the individual.
Under these existing definitions, an otherwise qualified
firefighter or law enforcement officer who is recognized by his or her
agency as functionally within or part of the agency, but acts in
emergency circumstances to save human life outside his or her agency's
jurisdiction or where he or she is otherwise not obligated to act, will
generally not be found to be serving a public agency in an official
capacity. This is because the firefighter's or law enforcement
officer's acts and omissions in such circumstances will generally not
be recognized by his or her own public agency as legally those of the
agency.
As discussed in the analysis of the proposed revision to the ``line
of duty'' regulation, it is not uncommon for public safety officers to
respond to emergencies regardless of whether the emergency is in their
jurisdiction. The PSOB regulations which require that a public agency
affirm, or at least, not deny, that a public safety officer's acts or
omissions while acting outside the officer's jurisdiction were legally
those of the public agency, as currently written, do not take into
account these extraordinary situations which require an urgent and
immediate response and do not afford a public agency the opportunity to
determine whether it will affirm, or at least not deny legal
responsibility for an officer's acts or omissions while so acting.
Within the context of the PSOB Program, BJA recognizes that public
safety officers, by virtue of their training, expertise, and
experience, are often compelled to act where human life is endangered.
Moreover, a public safety officer's training and experience make them
uniquely qualified to intervene to save human life. Accordingly, BJA
believes that the actions of public safety officers, i.e., firefighters
and law enforcement officers, in these extraordinary and limited
circumstances should be covered by the PSOB Program.
As the PSOB Act did not define ``official capacity'' as to address
whether an officer's off-duty actions could satisfy such requirement
and expressly delegated to the agency in 42 U.S.C. 3796(c) the
authority to promulgate implementing regulations, the agency may
interpret the term ``official capacity'' in regulations so long as the
interpretation is not arbitrary, capricious, or contrary to law.\25\
Moreover, the proposed rule is consistent with existing provisions that
deem an officer's injury to be in the line of duty without regard as to
whether the officer was functioning in an official capacity at the time
of his or her injury--when such injury resulted from the injured
party's status as a public safety officer.\26\
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\25\ See Groff v. United States, 493 F.3d 1343, 1353 (Fed. Cir.
2007) (``Congress did not further define what it means to serve `in
an official capacity,' leaving the statute silent as to whether
contract pilots fall within its ambit.'').
\26\ See 28 CFR 32.3 (defining Line of duty injury).
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As mentioned with regard to the proposed changes to ``line of
duty,'' other provisions of federal law similarly recognize public
safety officers' special role by granting rights beyond those enjoyed
by the public at large \27\ and recognizing that local public safety
officers often serve the public outside the officer's immediate
jurisdiction.\28\ The proposed rule is consistent with the recognition
afforded by those provisions. Finally, in recognizing and covering the
risks faced by public safety officers in carrying out their obligation
to protect the public, the limited expansion in the proposed rule is
also consistent with one of the purposes of the PSOB Act: To recruit
and retain public safety officers.
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\27\ See, e.g., Law Enforcement Officers Safety Act of 2004,
Public Law 108-277, 118 Stat. 865, codified at 18 U.S.C. 926B, 926C
(granting ``qualified law enforcement officers'' the right to carry
concealed weapons across state lines, notwithstanding provisions of
state law prohibiting or limiting concealed weapons).
\28\ See, e.g., 5 U.S.C. 8191 (granting federal workers'
compensation benefits to local law enforcement officers injured
while pursuing or apprehending persons sought for crimes against the
United States or material witnesses for federal prosecutions).
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The proposed rule would add to the definition of ``official
capacity'' a narrow exception that would deem the extraordinary acts of
a firefighter or law enforcement officer to save a human life as
``serving a public agency in an official capacity.'' To maintain the
integrity and limited nature of the exception, such acts would be
limited to those determined to be ``line of duty activity or action''
under the proposed exception to that definition. This proposed change
is intended to work in conjunction with the proposed change regarding
line of duty.
Officially recognized or designated public employee member
of a squad or crew: As provided in sec. 1086 of Public Law 112-239, the
proposed rule would revise the existing definition to cover members of
ambulance squads and rescue crews who are employed by or volunteer for
certain nonprofit entities serving the public.
On-site hazard management: As currently defined in 28 CFR
32.3, the term ``fire suppression'' includes ``on-site hazard
evaluation'' but the latter term is not defined and does not include
the more comprehensive task, ``on-site hazard management.'' To account
for this necessary component of firefighter work, the proposed rule
would define on-site hazard management as including actions taken to
provide scene security or direct traffic in support of a fire, rescue,
or law enforcement emergency.
Parent-child relationship: As defined in 28 CFR 32.3, the
terms ``adopted child'' and ``stepchild'' require a PSOB determining
official to determine whether a public safety officer had a ``parent-
child relationship'' with a child. The current definition of parent-
child relationship, i.e., a relationship between a public safety
officer and another individual where the officer acts as a parent,
requires that the relationship be shown by convincing evidence. This
higher standard of proof has delayed the processing of claims involving
claimants seeking benefits on behalf of (or as) the stepchild or
adopted child of a deceased officer. In nearly all such claims,
additional evidence sought to meet the higher standard has confirmed
the initial assessment of the determining official.
As the higher standard proof has been shown to add little certainty
in what is inherently a subjective determination about the existence of
a relationship that is known best by the persons directly involved in
it, the agency proposes to revise it. The proposed rule would revise
the definition parent-child relationship by changing the standard of
proof from ``convincing evidence'' to the standard of ``more likely
than not'' applicable in nearly all other PSOB Program determinations.
PSOB Counsel: In 2013, the Attorney General directed that
the PSOB claims process be streamlined through the consolidation of
legal and other claims functions within BJA. Apart from a final rule
revising the definition of ``PSOB Office'' that was published in the
Federal Register in 2013, 78 FR 29233 (May 20, 2013), the agency has
published no regulations identifying the entity or individual providing
legal
[[Page 57356]]
review within BJA. In order to make more transparent the legal review
process associated with PSOB claims, the proposed rule would identify
PSOB Counsel as the legal staff in BJA responsible for performing legal
review of claims for PSOB Program benefits and providing PSOB
determining officials with legal advice in PSOB Program matters.
Public employee member of a squad or crew: The agency
proposes to remove this definition as a recent amendment to 42 U.S.C.
3796b(7) in sec. 1086 of Public Law 112-239 removed the ``public
employee'' requirement from the definition of ``member of a rescue
squad or ambulance crew.''
Stress or strain: As discussed in the proposed revision of
the definition of ``injury,'' the agency's experience is that the
public has found the definition of stress or strain very difficult to
understand and apply. For the reasons provided, the proposed rule would
eliminate this definition in favor of incorporating the specific
conditions that are excluded into the definition of injury. In so
doing, the proposed rule would make clear those conditions that are
excluded from the definition of injury, streamline the processing of
claims, and help to reduce the number of claims filed that, as a matter
of law, cannot be paid due to a lack of injury.
Suppression of fire: As currently defined, the term refers
to the work and activities connected with extinguishing or containing a
fire, beginning with its discovery, and includes extinguishment,
physical prevention, or containment of fire, including on-site hazard
evaluation. ``On-site hazard evaluation'' is logically part of a larger
task, ``on-site hazard management.'' The current definition does not
take into account the individual members of fire departments that are
deployed to provide on-site hazard management activities including
traffic incident management at emergency scenes. These individuals,
often referred to as ``fire police,'' are officially designated members
of a fire department, receive formal training, and perform operational
duties that, in the absence of fire police, would be required to be
performed by another member of the department.
When an officially designated member has the legal authority and
responsibility to qualify as a firefighter or law enforcement officer
as defined in 28 CFR 32.3, and is otherwise serving a public agency in
an official capacity, the individual qualifies as a public safety
officer. However, in the majority of claims involving personnel whose
specialized duties are limited to traffic incident management and other
on-site hazard management tasks, the individual lacks the legal
authority and responsibility to either engage in the suppression of
fire (as currently defined), or arrest persons alleged to have violated
the criminal laws, which precludes the individual from qualifying as a
public safety officer as a firefighter or law enforcement officer.
The agency's experience is that, apart from engaging in actual fire
suppression, personnel providing on-site hazard management are at risk
for many of the same hazards encountered at the scene of a fire as do
personnel who engage directly in the suppression of fire as
firefighters. Fire police and similar fire department personnel are
exposed to the hazards of the emergency response, the hazardous
materials and toxins released into the air at the scene of the fire, as
well as the hazards posed by their traffic control duties that kill or
disable firefighters.\29\ The proposed rule would expand the type of
activities covered as fire suppression to include on-site hazard
management, which would be addressed separately in a new definition in
28 CFR 32.3 and would include duties such as providing scene security
and directing traffic in response to a fire emergency.
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\29\ Between 1996 and 2010, 253 firefighters were killed in
vehicle collisions responding to and returning from incidents; 70
more were killed after being struck by vehicles at the scene of
emergencies. U.S. Fire Administration, Traffic Incident Management
Systems, FA-330/March 2012, 4-5, https://www.usfa.fema.gov/downloads/pdf/publications/fa_330.pdf (accessed Feb. 26, 2016).
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Voluntary intoxication at the time of the officer's fatal
or catastrophic injury: Under 42 U.S.C. 3796a(2), the agency is
prohibited from paying benefits ``if the public safety officer was
voluntarily intoxicated at the time of his fatal or catastrophic
injury.'' Under the current regulation implementing 42 U.S.C. 3796a(2),
a public safety officer is considered to be voluntarily intoxicated
when a drug test establishes in the body of a public safety officer,
the presence, in any amount, of a drug listed in the Schedules of
Controlled Substances. See e.g., 21 U.S.C. 812; 21 CFR, part 1308. In
the overwhelming majority of claims, the officer is found to have been
taking a prescribed drug consistent with such prescription and not
intoxicated at the time of fatal or catastrophic injury. However, BJA
and claimants expend significant resources in determining that this
limitation is not implicated, which delays the processing of otherwise
valid claims. To enable BJA to focus its inquiry on those drugs used as
intoxicants and those that generally produce intoxication, the proposed
rule would makes several substantive changes to the existing rule
pertaining to how voluntary intoxication is determined with regards to
drugs.
The proposed rule would, among other things, revise existing
language to provide that voluntary intoxication is not automatically
established when the presence of drugs in the body of the public safety
officer is generally within prescribed limits and the public safety
officer was not acting in an intoxicated manner immediately prior to
the injury. To account for circumstances under which there is no
witness available to attest as to whether an officer was acting in an
intoxicated manner immediately before a fatal injury, the proposed rule
would clarify, consistent with BJA's current interpretation, that
voluntary intoxication is not implicated when convincing evidence
establishes that the drug would not produce intoxication in the amount
present in the officer's body.
Volunteer fire department: Under 42 U.S.C. 3796b(9)(A), to
be eligible for benefits as a public safety officer, a firefighter must
be serving ``a public agency in an official capacity.'' Under the
current definition of ``official capacity'' in 28 CFR 32.3, an
otherwise qualified volunteer firefighter who is an officially
recognized or designated member of a legally established volunteer fire
department (VFD) cannot be considered to be serving a public agency in
an official capacity and therefore cannot be a public safety officer,
unless a public agency recognizes (or, at a minimum, does not deny)
that the volunteer firefighter's acts and omissions are legally those
of the public agency.
BJA's experience is that in most PSOB claims involving volunteer
firefighters, the ``public agency'' and ``official capacity''
requirements for the individual volunteer firefighter are satisfied
when the VFD establishes that it is an ``instrumentality'' of a public
agency under 28 CFR 32.3 (defining Instrumentality) and that, as such,
the public agency is legally responsible for the acts and omissions of
its members. In a relatively recent trend, the agency has received
claims in which a VFD does not fully qualify as an instrumentality
despite providing fire protection to a public agency as a
noncommercial, non-profit corporation. In nearly all claims in which a
VFD does not qualify as an instrumentality, it is because the public
agency denies legal responsibility for the acts and omissions of the
VFD. Such denial is often manifested in a contract or similar agreement
for services under which the public agency expressly states that it is
not responsible for the acts or omissions
[[Page 57357]]
of the VFD. Under such contracts, the public agency may require the VFD
to obtain its own insurance (even as the public agency provides the VFD
with funding for operations) and indemnify and hold harmless the public
agency for its acts and omissions or those of its members. Such
contracts may also refer to the volunteer firefighter members of such
VFDs as ``independent contractors'' of the public agency despite the
fact that the volunteer firefighters are officially recognized members
of the VFD, itself a non-commercial, nonprofit corporation.
Since the enactment of the PSOB Act in 1976 and before the agency
defined in regulations the terms ``official capacity'' and
``instrumentality,'' qualified members of legally organized VFDs have
generally been considered to be public safety officers. To preserve
this eligibility and address the trend of shifting liability, the
proposed rule provides that a VFD qualifies as an instrumentality as
defined in 28 CFR part 32 if it is legally established as a public
entity or nonprofit entity serving the public, and it is legally
established solely for the purpose of providing fire protection and
related services on a noncommercial basis to or on behalf of a public
agency or agencies. The proposed rule also provides that to qualify as
an instrumentality under this provision, a VFD must provide fire
protection to members of the public without preference or subscription
fees. The proposed rule would preserve the existing PSOB Act coverage
of volunteer firefighters serving the public in noncommercial,
nonprofit VFDs and leave undisturbed the agency's longstanding
interpretation that, as a general rule, commercial entities cannot
establish status as a public agency or as an instrumentality of a
public agency.
Section 32.5 Evidence
Under current Sec. 32.5(a), claimants have ``the burden of
persuasion as to all material issues of fact, and by the standard of
proof of `more likely than not.' '' The proposed rule would retain this
standard of proof, and simplify the current description of claimants'
burden by providing that claimants are responsible for establishing all
elements of eligibility for the benefit they seek.
The proposed rule would replace the standard for evidentiary
submissions in current Sec. 32.5(c), Federal Rules of Evidence 301,
401, 402, 602-604, 701-704, 901-903, and 1001-1007, with a general
standard for admissibility similar to that used in other federal
benefit programs. See e.g., 20 CFR 10.115 (providing that the evidence
submitted in a claim for Office of Workers' Compensation benefits
``must be reliable, probative and substantial''). Although the Federal
Rules of Evidence provide a precise set of rules for evaluating
evidentiary submissions in litigation, BJA believes that a less formal
and legalistic set of standards is better suited for an administrative,
non-adversarial claims process in which most claimants are
unrepresented. The proposed rule provides that a claimant's evidence
must be worthy of belief (credible), tending to prove an issue
(probative), and actually existing (substantial). The proposed rule
would also provide that, when deemed necessary by a PSOB determining
official, a claimant must produce original documents or other copies
verified as true and exact by a custodian of such records.
Under current 28 CFR 32.5(i), BJA considers a public safety
officer's response to a call to provide emergency service ``prima facie
evidence'' that the activity was ``nonroutine'' for purposes of
applying the presumption in 42 U.S.C. 3696(k). The agency's experience,
which is substantiated by research showing that a public safety
officer's sympathetic nervous system is activated with his or her
receipt of an alarm, is that a public safety officer's response to an
emergency call to perform public safety activity, which generally
begins when an officer receives such call, also constitutes evidence of
the response's physically stressful character. Accordingly, the
proposed rule provides that a public safety officer's response to a
call for emergency service shall also constitute prima facie evidence
that the response was physically stressful for purposes of 42 U.S.C.
3796(k).
As stated, generally, the evidence of record in a claim must
establish material issues of fact to the standard of proof of ``more
likely than not.'' However, the unique circumstances of public safety
work results in PSOB claims in which many of the incidents or injuries
that are the basis of the claim may be without numerous witnesses or
extensive documentation. To address the evidentiary challenges posed by
the hazards and risks of public safety activity and the unpredictable
nature of such work, the agency proposes a limited exception to this
standard of proof by adding add a new Sec. 32.5(k) that would address
situations in which the proof on either side of an issue is equal. The
proposed rule would provide that where the determining official
determines the record evidence to be equivalent regarding a fact
material to whether or not the circumstances of the death or injury of
the officer warrant coverage as a death or permanent and total
disability incurred in the line of duty under the Act, the determining
official shall resolve the matter in favor of the claimant. The
proposed rule makes clear that the absence of evidence in support of a
particular fact does not establish that the evidence is equivalent and
that the provision is not a substitute for actual evidence establishing
or disproving a particular fact.
The proposed rule would also replace the prerequisite certification
regulations at 28 CFR 32.15 and 32.25 with a single provision at Sec.
32.5(l) authorizing PSOB determining officials to require from a
claimant any proof necessary to establish facts of eligibility
essential for death, disability, or education claims under the PSOB Act
including proof of birth, death, disability, earnings, education,
employment, and injury. Under the current rule, without a waiver from
the BJA Director for good cause shown, BJA may not approve any death or
disability claim unless the public safety officer's agency produces a
certification as defined in Sec. 32.3 and specific types of supporting
documentation. For example, even in a claim for PSOB death benefits in
which the public agency has paid death benefits to the public safety
officer's survivors, BJA may not pay benefits without a certification
(or, as appropriate a waiver for good cause shown) from the public
safety officer's agency that the officer died as ``a direct and
proximate result of a line of duty injury'', or that the public safety
officer's survivors have received ``the maximum death benefits legally
payable by the agency'' to similarly situated public safety officers.
BJA's experience is that the prerequisite certification regulations
impose an extremely high level of precision on the claims process,
often require the public safety officer's agency to make legal and
medical conclusions they are not qualified to make, and produce delays
in adjudication. The better course, and one keeping in line with other
government claims programs would be to allow claimants and agencies to
provide documents establishing eligibility from a variety of sources
including but, not limited to, death certificates, autopsies,
toxicology reports, coroner's reports, police reports, investigative
reports, workers compensation determinations, State-law line of duty
death determinations, insurance policies, newspaper and media reports,
and statements from the officer's public agency. Taken together, such
documents are more than adequate to establish the relevant facts and
circumstances of a public safety officer's injury and the eligibility
of beneficiary.
[[Page 57358]]
In replacing the prerequisite certification and waiver requirements
with a process tailored to the facts of individual claims, the proposed
rule would reduce administrative burden and improve the efficiency of
the process by reducing delays for unnecessary documents and or
waivers.
In a recent report on the PSOB Program, the OIG recommended that
BJA implement ``an abandonment policy that gives claimants adequate
opportunity to provide needed documentation to support their claims and
ensures that the PSOB Office does not use its limited resources
conducting outreach on claims, especially those which claimants do not
intend to pursue.'' \30\ To aid in implementing the OIG's finding, OJP
proposes to define in a new Sec. 32.5(m), the circumstances under
which a claim is considered to be abandoned.
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\30\ U.S. Dept. of Justice, Office of the Inspector General,
Audit of the Office of Justice Programs' Processing of Public Safety
Officers' Benefit Programs Claims, Audit Division 15-21 at 11 (July
7, 2015).
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The proposed rule would consolidate most abandonment provisions in
a single provision. Under the proposed rule, when a claimant or agency
who does not furnish evidence necessary to a determination within one
year of BJA's request, or a claimant fails to pursue in a timely
fashion a determination on his or her claim, following appropriate
notice BJA will consider the claim abandoned and take no further action
on the claim unless it received a complete claim, including the
specific information requested, within 180 days from notice of
abandonment. Consistent with current practice, the claim would be
considered as though never filed, and abandonment would not toll the
time periods remaining for filing. In providing claimants with a one-
year period to respond to requests for evidence, as well as a ``grace
period'' in which claimants may reopen an abandoned claim, the proposed
rule provides adequate time for claimants to provide documents
supporting their claims while permitting BJA to dedicate its resources
to those claims that can be decided on the evidence of record.
Section 32.7--Fees for Representative Services
Under 42 U.S.C. 3796c, the agency is authorized to promulgate
``regulations governing the recognition of agents or other persons
representing claimants.'' The agency has exercised its regulatory
authority to establish in current Sec. 32.7 provisions governing the
circumstances under which representatives may charge fees for
representative services in a claim for benefits under the PSOB Act.
Claimants for representative services provided in connection with a
claim for PSOB Act benefits may not charge fees for representative
services based on a stipulated, percentage, or contingency fee
recovered and may not charge fees in excess of the amount permitted
under the Equal Access to Justice Act, currently $125 per hour. All
petitions seeking authorization to charge fees, whether contested by
the PSOB claimant-beneficiary or not, are subject to a review for
reasonableness based on the factors in Sec. 32.7(c)(1)-(8).
Additionally, the current rules do not address who may provide
representation in PSOB claims, nor do they address whether non-attorney
representatives may charge fees for representation.
The agency proposes to revise Sec. 32.7 to limit paid
representation to attorneys and support staff under their direct
supervision, keep fees at a reasonable level consistent with the
purpose of the program, and improve the processing of claims involving
attorney representatives. The intent in so doing is to enable claimants
to more easily obtain qualified representation in claims for PSOB death
or disability benefits.
In conjunction with a proposed definition of the term ``attorney''
as a member in good standing of a State bar, the proposed rule would
limit authorization to charge fees for representative services to such
attorneys. The agency views limiting paid representation to attorneys
as a means of ensuring that individuals providing paid representation
in PSOB claims are capable of providing competent representation, are
obligated to provide representation according to code of professional
ethics, and are subject to oversight and compliance by an independent
licensing body. As non-attorney representatives are not subject to
similar testing, ethical requirements, and independent monitoring, the
agency proposes to continue to permit them to provide representation
but prohibit such individuals from charging claimants fees for
representative services.
The proposed rule would permit fees for representative services to
be based on a fixed fee, hourly rate, a percentage of benefits
recovered, or a combination of such bases. To enable BJA to maintain
its oversight role regarding fees, the proposed rule would require that
claimants provide to the PSOB Office before seeking authorization to
charge fees a copy of any fee agreement for representative services
under the Act. To keep fees reasonable, the proposed rule would
prohibit fees for representative services in excess of 12 percent of
the total PSOB death or disability payment available to a claimant
regardless of how the fee agreement is structured.\31\ To expedite the
review of fee petitions, the proposed rule would also establish a
presumption of reasonableness for representative's fees not exceeding 8
percent of the total PSOB death or disability payment available to a
claimant in a claim resolved at the PSOB Office level, and establish a
presumption of reasonableness for representative's fees not exceeding
10 percent of the total PSOB death or disability payment available to a
claimant in a claim resolved at the Hearing Officer or BJA Director
level. These presumptions of reasonableness would be rebuttable if an
examination of the factors in Sec. 32.7(c) established that the fee is
unreasonable.
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\31\ By way of example, in a claim for benefits based on an
officer's death that occurred in FY2014, the total benefit payable
under 42 U.S.C. 3796(a) is $333,604.68. In a claim involving a
surviving spouse and two children, an attorney representing the two
children would be prohibited from charging fees in excess of
$20,016.28, which represents 12% of the children's combined \1/2\
share of benefits, $166,892.34.
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Section 32.9 Complete Application
One of the recommendations of OJP's independent BPI review of the
PSOB Program was that, to improve the efficiency of claims processing,
BJA should require a minimum set of supporting information before
assigning a claim number and routing the claim for review to reduce the
time incomplete claims remain unresolved and to focus BJA resources on
those claimants who need assistance in submitting an application for
benefits.\32\ Consistent with other government claims programs, the BPI
review recommended that the PSOB Office shift its focus from a one-on-
one outreach model to an approach that returns the responsibilities to
the claimant and agency to gather, organize, and submit all required
prior to filing a PSOB claim, and being assigned a claim number.
Related to the minimum required documents concept, for BJA to establish
and implement meaningful timeliness standards for its processing of
claims, claims must necessarily be complete and ripe for determination
before the ``clock'' starts on calculating the days required by BJA to
process a claim to completion.
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\32\ In a sample of claims reviewed, the BPI review found that
an average of 148 days was spent on outreach in death and disability
claims.
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To improve the efficiency of claims processing pursuant to the BPI
recommendation, the agency proposes to add a new Sec. 32.9 defining
what
[[Page 57359]]
constitutes a ``complete application'' for benefits under the PSOB Act
and implementing regulations prescribing BJA's obligations when it
receives such an application. BJA's current practice when it receives
an application for benefits that lacks the basic required documents to
render a determination is to assign it a claim number, process it as a
claim from the moment a claim form is received, and conduct biweekly
outreach efforts to obtain from the applicant and the officer's public
agency information required to establish eligibility for benefits.
BJA's experience is that it allocates significant resources to
repeatedly prompting applicants for benefits and public agencies as to
what basic required documents they must submit to establish eligibility
when BJA's resources could be reallocated to processing otherwise
complete applications.
Under the proposed rule, following publication of a Notice in the
Federal Register consistent with 5 U.S.C. 552(a)(1)(C), the PSOB Office
would maintain and publish on the PSOB Program Web site a list of basic
required documents that claimants would be required to file with
applications for PSOB Program death, disability, and education
benefits. These documents would represent the absolute minimum
documentation BJA would accept before treating an application as a
claim, devoting resources to processing it. This documentation, once
submitted, would constitute a ``complete application.'' By precluding
incomplete applications from being considered as claims in the first
instance, the proposed rule would support the OIG and BPI
recommendations and BJA's efforts to effectively allocate its resources
and avoid issuing merits-based determinations denying benefits based on
obviously incomplete applications, which would simply shift initial
evidentiary development to determinations by Hearing Officers and the
BJA Director.
The proposed rule provides that when BJA receives an application
for benefits without the basic required documents (as indicated on the
Web site), BJA will notify the applicant in writing of the evidence and
information necessary to complete the application, and advise the
applicant that BJA will not process the incomplete application as a
claim for benefits until the remainder of the documents are received.
For purposes of determining whether a claim was timely filed under
proposed 28 CFR 32.12 and 32.22, an applicant's submission of either a
claim form or report form, i.e., a Report of Public Safety Officer's
Death, Claim for Death Benefits, or Report of Public Safety Officers'
Permanent And Total Disability, even though not constituting a complete
application, would be sufficient to satisfy the requirement that a
claim must be filed within three years of the officer's death or
injury. To prevent applicants from being prejudiced based on an
inability to provide necessary information, the proposed rule would
provide that an application will not be considered incomplete if an
applicant's inability to file basic required documents was the result
of a public agency's refusal or inability to provide the information
identified in this section if the applicant provides to the PSOB Office
written justification for his or her inability to provide the
information and the justification demonstrates that such inability to
file evidence is not due to any fault of the applicant.
Section 32.10 PSOB Counsel
Nothing in the PSOB Act or implementing regulations prescribes the
relationship between PSOB Counsel and PSOB determining officials. To
make transparent the role of PSOB Counsel and the scope of Counsel's
review in the PSOB claims process, proposed Sec. 32.10 would require
that PSOB determining officials seek legal advice from PSOB Counsel
before determining a claim. However, the proposed rule would limit the
scope of such advice to the interpretation of law under the PSOB Act
and implementing regulations and, unless directed otherwise by the
Assistant Attorney General for the Office of Justice Programs, PSOB
Counsel would be precluded from reviewing findings of fact made by PSOB
determining officials.
Section 32.12 Time for Filing a Claim
Under current Sec. 32.12, unless the time for filing is extended
by the BJA Director for good cause shown, a claimant (applicant under
proposed Sec. 32.9) must file a claim for PSOB Program death benefits
before the later of three years from the date of the public safety
officer's death, or one year after a final determination of survivors
benefits or statement from the public agency that it was not legally
authorized to pay survivors benefits on behalf of such an officer.
Consistent with proposed Sec. 32.5(l), and to simplify administration
of the program, the proposed rule would eliminate provisions associated
with the one-year requirement as well as all provisions referring to
prerequisite certification and provide that no application shall be
considered if it is filed with the PSOB Office more than three years
after the public safety officer's death.
Section 32.13 Definitions
Section 32.13 provides definitions applicable to claims for PSOB
Program death benefits. OJP proposes to add new definitions or revise
existing definitions in Sec. 32.13 as follows:
Beneficiary of a life insurance policy of a public safety
officer: Where it has been established that public safety officer died
as the direct and proximate result of a personal injury sustained in
the line of duty injury, and there is no surviving spouse, surviving
child, or surviving individual designated by the officer to receive the
PSOB Program death benefit, under 42 U.S.C. 3796(a)(4)(B), BJA will pay
the surviving individual(s) designated by the public safety officer to
receive benefits under the officer's most recently executed life
insurance policy on file at the time of death with the public safety
agency.
Under regulations in 28 CFR 32.13 defining ``beneficiary of a life
insurance policy of a public safety officer,'' BJA may consider as
revoked a life insurance beneficiary designation which lists a former
spouse who, following the designation, was divorced from the public
safety officer, unless it is demonstrated that the officer had no
intentions of revoking the designation for his or her former spouse.
Similar to the regulation regarding former spouses, the proposed
rule would add a new paragraph (3) permitting BJA to consider as
revoked a designation in a life insurance policy of a beneficiary who
dies after the public safety officer but before a determination can be
made in favor of a living contingent beneficiary. In the circumstances
described, the proposed rule would enable BJA to honor the public
safety officer's designation of a contingent beneficiary rather than
disregarding it in favor of the next category of eligible
beneficiaries, surviving parents.
Engagement in a situation involving law enforcement, fire
suppression, rescue, hazardous material response, emergency medical
services, prison security, disaster relief, or other emergency response
activity: For a fatal heart attack, stroke, or vascular rupture to
qualify for the statutory presumption of death resulting from a line of
duty injury in 42 U.S.C. 3796(k), a public safety officer must, among
other things, engage in a situation involving specific line-of-duty
actions or participate in a training exercise as defined in 28 CFR
[[Page 57360]]
32.13.\33\ A public safety officer engages in qualifying activity when
he or she is actually engaging in law enforcement, suppressing fire, or
performing one of the other types of activity currently defined in 28
CFR 32.13.
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\33\ The activities in which a public safety officer must engage
to obtain the benefit of the presumption, e.g., law enforcement, are
defined in 28 CFR 32.3.
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The agency's experience is that the ``engagement'' activities
listed in the law, in some cases, necessarily require other activities
to take place prior to a public safety engagement. For example, a
firefighter may need to clear the snow from the driveway of a fire
station, or change a flat tire on a fire truck before the public agency
can engage in fire suppression. Although ``engagement in a situation
involving . . . fire suppression'' generally begins with the
department's or agency's request for a particular officer to perform
this type of activity, under the current rules, it generally cannot be
said to include the clearing of the station's driveway or the changing
of a tire unless such action is performed in the course of the actual
engagement.
The proposed rule would expand the current regulatory definition to
cover only those line of duty actions or activities that, if not
performed, would directly preclude the public agency from providing
fire suppression, rescue, hazardous material response, emergency
medical services, prison security, disaster relief, or other emergency
response activity. Thus, the proposed definition would cover as part of
an engagement under 42 U.S.C. 3796(k) a public safety officer's
changing of a flat tire on a fire truck necessary for the public agency
to engage in fire suppression.
Nonroutine strenuous physical activity: To be eligible for
the presumption in 42 U.S.C. 3796(k), a public safety officer must,
among other things, either participate in a training exercise or in a
situation involving nonroutine stressful or strenuous physical
activity. The agency has defined ``nonroutine stressful or strenuous
physical activity'' in regulations as two distinct terms: ``nonroutine
stressful physical activity'' and ``nonroutine strenuous physical
activity.''
Generally speaking, nonroutine strenuous physical activity is
defined in 28 CFR 32.13 as line of duty activity that (1) is not
excluded as clerical, administrative, or non-manual in nature, (2) is
not routinely performed, and (3) requires ``an unusually-high level of
physical exertion.'' Whether a public safety officer's activity
constitutes an ``unusually high-level of physical exertion'' has often
proven challenging for claimants to demonstrate and the agency to
evaluate.\34\
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\34\ See Department of Justice, Office of the Inspector General,
The Office of Justice Programs' Implementation of the Hometown
Heroes Survivors Benefits Act of 2003, I-2008-005 i (March 2008)
(explaining that OIG conducted its review ``in response to concerns
expressed by several members of Congress . . . that OJP's narrow
interpretation of terms found in the Act--in particular the phrases
``nonroutine stressful or strenuous physical activity'' and
``competent medical evidence to the contrary''--might be resulting
in a high rate of claims denials'').
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To make clear what constitutes ``strenuous,'' and to facilitate
more consistent decision making, the agency proposes to replace the
term ``unusually-high'' with the term ``vigorous.'' The use of vigorous
as a descriptor is appropriate as it is used by the Centers for Disease
Control (CDC) to characterize physical activity that exceeds a moderate
level of intensity.\35\ Relevant to a standard that must be applied to
public safety officers, the CDC's examples take into consideration an
individual's age and weight. The proposed rule would not expand the
type of physical activity considered to be strenuous, but rather would
make claims processing more efficient by providing the public and the
agency with a recognized standard that is more easily understood and
applied.
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\35\ See e.g., Centers for Disease Control, General Physical
Activities Defined by Level of Intensity, https://www.cdc.gov/nccdphp/dnpa/physical/pdf/PA_Intensity_table_2_1.pdf (accessed Feb.
11, 2016).
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Nonroutine stressful physical activity: To be eligible for
the presumption in 42 U.S.C. 3796(k), a public safety officer's
participation in a training exercise or engagement in a situation
involving law enforcement, etc., must also involve either nonroutine
stressful physical activity or nonroutine strenuous physical activity.
Generally speaking, nonroutine stressful physical activity is defined
in current 28 CFR 32.13 as line of duty activity that (1) is not
excluded as clerical, administrative, or non-manual in nature, (2) is
not routinely performed, and (3) is not capable of being performed
without minimal physical exertion. The ``stressful'' component of an
officer's nonroutine stressful physical activity is evaluated
differently according to whether the officer was (1) engaged in a
situation involving law enforcement, fire suppression, rescue,
hazardous material response, emergency medical services, prison
security, disaster relief, or other emergency response activity, or (2)
was participating in a training exercise.
Under current 28 CFR 32.13, an officer's engagement in a situation
is considered ``stressful'' if, when viewed objectively, the
circumstances of the engagement expose, or appear to expose, the
officer to ``significant'' perils or harms not encountered by the
public in the ordinary course and, as a result, cause the officer to
suffer an ``unusually high'' degree of distress manifested by fear,
apprehension, anxiety, or unease. Similarly, under the same regulation,
an officer's participation in a training exercise is considered
``stressful'' if, when viewed objectively, the circumstances replicate
situations that expose the officer to significant perils or harms, and,
as a result, cause the officer to suffer an ``unusually-high'' degree
of distress manifested by fear, apprehension, anxiety, or unease.
Similar to the agency's experience with implementing the term
``nonroutine strenuous physical activity,'' whether a public safety
officer's activity exposes the officer to ``significant'' dangers or
produces an ``unusually-high'' degree of distress has often proven
challenging for claimants to demonstrate and the agency to evaluate.
Although it is clear that a traffic stop, arrest of a suspect, response
to a motor vehicle accident, or response to a structure fire each
expose an officer to significant threats not ordinarily encountered by
a member of the public when viewed objectively, produce in the officer
some degree of distress, i.e., ``fear or anxiety,'' it is difficult for
BJA, the public agency, or the claimant to establish whether these
circumstances expose the officer a significant peril or an ``unusually-
high level'' of distress, i.e., ``fear or anxiety.''
To make clear what constitutes ``stressful'' activity and to
facilitate more consistent decision making, the agency proposes to
eliminate in the regulatory definition the term ``significant,'' and to
replace the term ``unusually-high'' with ``unusual.'' The elimination
of these qualifiers will maintain the integrity of the statutory
requirement that the activity be ``stressful'' while aligning the text
of the regulation with circumstances faced by public safety officers
and the agency's interpretation of such circumstances. The proposed
rule would not expand the type of physical activity considered to be
stressful, but rather would make claims processing more efficient by
providing the public and the agency with a standard that is more easily
understood and applied.
[[Page 57361]]
Section 32.14 PSOB Office Determination
Consistent with proposed Sec. 32.5(m), which consolidates all
abandonment provisions into a single paragraph, the proposed rule would
remove paragraph (b), which prescribes abandonment provisions for death
claims.
Section 32.15 Prerequisite Certification
Consistent with proposed Sec. 32.5(l), which replaces Sec. Sec.
32.15 and 32.25, the proposed rule would remove Sec. 32.15 which
prescribes prerequisite certification requirements for death claims.
Section 32.16 Payment
Under current Sec. 32.16(a), BJA may not pay more than one person
on the basis of being a public safety officer's parent as a mother, or
on that basis as a father. In cases where more than one parent
qualifies as the officer's father, or as the officer's mother, the
regulation currently limits BJA's payment to the ``one with whom the
officer considered himself, as of the injury date, to have the closest
relationship.'' The regulation also provides that a biological or
legally adoptive parent whose parental rights have not been terminated
is rebuttably presumed to have had the closest relationship with the
officer.
BJA's experience is that there may exist circumstances in which
more than two persons share with the public safety officer a close
personal relationship as a parent. The proposed rule would retain the
presumption that a biological or legally adoptive parent whose parental
rights have not been terminated is presumed to be a ``parent,'' but
permit BJA to pay in equal shares additional persons as the parent of a
public safety officer when evidence demonstrates that there exists such
a relationship as defined in 28 CFR 32.13.
Current regulations do not make clear the agency's interpretation
regarding the payment of benefits to a surviving individual in a
category of beneficiaries with more than one beneficiary. For example,
in an approved PSOB claim in which the surviving parents are the
appropriate beneficiaries under 42 U.S.C. 3796(a)(5), and one of the
parents has not filed a claim for benefits but there is no evidence
that the non-filing parent is deceased, agency practice is to hold the
share payable to the surviving parent in the event that the non-filing
parent may file a claim, or, if he or she failed to file a claim in the
time prescribed, a request for an extension of time to file. To make
clear the agency's interpretation and to provide for the timely payment
of benefits to individuals determined to be eligible for benefits, BJA
proposes to add a new Sec. 32.6(d) that would address such situations.
The proposed rule would consider deceased and therefore ineligible, any
person, who, being 18 years of age, or older at the date of the public
safety officer's injury, and not incapable of self-support as defined
in 42 U.S.C. 3796b(3)(C), failed to file an application for benefits
within the time prescribed for such filing. Thus, if one of two
surviving parents failed to file a written claim, the agency would hold
the non-filing parent's share until the time for filing had expired.
After such time, the agency would pay the remaining one-half share to
the filing parent. The proposed rule is intended to prevent an adult
beneficiary's failure to file a claim for benefits from hindering BJA's
ability to fairly and timely distribute program benefits amongst a
public safety officer's eligible beneficiaries.
Section 32.22 Time for Filing a Claim
Under current Sec. 32.22, unless the time for filing is extended
by the BJA Director for good cause shown, a claimant must file a claim
for PSOB Program disability benefits before the later of three years
from the date of the public safety officer's injury, or one year after
a final determination of disability benefits by the public agency or
statement from the public agency that it was not legally authorized to
pay disability benefits on behalf of such officer. Consistent with
proposed Sec. 32.5(l), and to simplify administration of the program,
the proposed rule would eliminate provisions associated with the one-
year requirement as well as all provisions referring to prerequisite
certification, and provide that no application shall be considered if
it is filed with the PSOB Office more than three years after the public
safety officer's injury.
Section 32.23 Definitions
Section 32.23 provides definitions applicable to claims for PSOB
disability benefits. OJP proposes to revise existing definitions in
Sec. 32.23 as follows:
Gainful work: The proposed rule would redefine the term
``gainful work'' to provide a framework for PSOB determining officials
to analyze whether any type or amount of work performed for pay
disqualifies a claimant for PSOB Program disability benefits who has
been found by medical professionals to be permanently and significantly
disabled from a line of duty injury.
To establish eligibility for the payment of disability benefits
under the PSOB Act, it is not enough that a claimant is unable to
perform the duties of a public safety officer as the result of a line
of duty injury.\36\ Rather, the claimant must be permanently unable to
perform any ``gainful work'' as the result of a line of duty
injury.\37\ ``Gainful work'' as currently defined in 28 CFR 32.23
generally refers to either full- or part-time activity for which an
individual is paid or would ordinarily be paid Under current PSOB
regulations, the agency determines whether a claimant is unable to
perform any gainful work based upon a medical, and in some cases,
vocational assessment, of the claimant's residual functional capacity,
i.e., what the claimant is capable of doing despite the disabling
conditions he or she incurred in the line of duty.\38\
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\36\ Under 42 U.S.C. 3796(b), the agency pays disability
benefits when it ``determines that a public safety officer has
become [both] permanently and totally disabled as the direct and
proximate result of a personal injury sustained in the line of
duty.''
\37\ See 42 U.S.C. 3796b(1) (defining ``catastrophic injury'').
\38\ 28 CFR 32.23 (defining Residual functional capacity).
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As a part of its assessment of disability, the agency also reviews
a claimant's tax records to determine whether a claimant has received
wages in return for work since the date of injury, or, as appropriate,
since the date the officer was found disabled by his or her public
agency or separated from his or her public agency by reason of
disability. The agency has generally interpreted current regulations
defining ``gainful work'' as precluding a finding of total disability
when a claimant has, after his or her disability retirement or
separation, and contemporaneous with the filing of an application for
disability benefits, received any wages in return for work, regardless
of the amount of wages received or the type of work for which the wages
were paid.
In the overwhelming majority of cases, the current regulations
defining ``gainful work'' work well. However, in some complex cases, a
claimant found by both medical and vocational professionals to be
totally and permanently disabled has nevertheless performed activity
that either is actually compensated, (e.g., a claimant with significant
orthopedic and cognitive disabilities received $100 honorarium for
serving on an organization's governance board), or is commonly
compensated, (e.g., a claimant with cognitive impairment resulting from
a severe brain injury volunteers intermittently at a hospital by
providing directions at an information desk). Despite each claimant
having been found to be ``incapable of performing
[[Page 57362]]
any gainful work'' as demonstrated by objective medical examination and
tests, under the current regulatory definition of ``gainful work,'' the
claimant's performance of work that ``actually is compensated or
commonly is compensated'' would generally disqualify them from
disability benefits.
In such circumstances, the current definition's emphasis on whether
work is actually or commonly paid as the single measure of what
constitutes ``gainful'' work, without regard to the nature and quantity
of work actually performed or the amount of payment received, does not
provide an equitable framework for the PSOB determining official to
determine whether the claimant is in fact totally disabled. The agency
believes that evidence that a claimant received $150 for intermittent
work activity that was offered and performed for therapeutic reasons,
sheltered work, or was otherwise performed outside the scope of
competitive employment, should not, by itself, preclude a finding of
total disability under the PSOB Act.
As a result, the agency proposes to revise the definition of
gainful work to provide that any such work activity must be both
substantial and gainful. The proposed rule would define substantial
work activity on the basis of whether the activities performed involved
significant mental or physical activities and would provide examples of
work activity that is and is not considered substantial. The proposed
rule would define gainful work activity similarly to the current
definition of gainful work by characterizing work activity as gainful
if it is actually or commonly compensated, i.e., performed for pay, but
exclude from compensation reimbursement for incidental expenses such as
parking or de minimis compensation.
The revised definition will enable the agency to fairly determine
whether a claimant who has been determined, pursuant to a medical
assessment, to be permanently and totally disabled but nonetheless
performs some sort of paid work activity, should be awarded disability
benefits.
Permanently disabled: Under 28 CFR 32.23, permanent
disability is shown when a medical assessment establishes ``to a degree
of medical certainty,'' i.e., by clear and convincing evidence, that a
claimant's condition will progressively deteriorate or remain constant
over his or her expected lifetime, or has reached maximum medical
improvement. The higher standard of proof associated with ``medical
certainty'' imposed by the current regulation but not required by law
often requires the agency to conduct additional evidentiary
development, particularly in claims with conflicting medical opinions.
The agency's experience in applying the higher standard of proof is
that it does not necessarily provide additional certainty as the
determining official, as in other claims, makes determinations of
eligibility by weighing the evidence, assessing its probative value,
and determining which evidence is entitled to more weight and or
credibility. As a result, the agency believes applying the standard of
proof ``to a degree of medical probability'' would lessen the burden on
claimants and the agency to establish permanent disability, would
reduce delays in processing disability claims, and would not impact the
integrity of the PSOB Program in any way. As a result, the agency
proposes to revise the regulation to change the standard of proof
required to establish a permanent level of disability from ``medical
certainty'' to ``medical probability.''
Totally disabled: Under current regulations in 28 CFR
32.23, total disability is shown when a medical assessment establishes
``to a degree of medical certainty,'' i.e., by clear and convincing
evidence, that a claimant's residual functional capacity (that which a
medical and vocational assessment demonstrates that the claimant can do
despite his or her disability) is such that he or she cannot perform
any gainful work. For the reasons discussed in the proposed revision to
the definition of ``permanent disabled,'' the agency proposes to revise
the regulation to change the standard of proof required to establish
such level of disability from ``medical certainty'' to ``medical
probability.''
Section 32.24 PSOB Office Determination
Consistent with proposed Sec. 32.5(o), which consolidates all
abandonment provisions into a single paragraph, the proposed rule would
remove paragraph (b), which prescribes abandonment provisions for
disability claims. The proposed rule would also remove references to
reconsideration of negative disability findings.
Section 32.25 Prerequisite Certification
Consistent with proposed Sec. 32.5(l), which replaces Sec. Sec.
32.15 and 32.25, the proposed rule would remove Sec. 32.25, which
prescribes prerequisite certification requirements for disability
claims.
Sec. 32.27 Motion for Reconsideration of Negative Disability Finding
Under current Sec. 32.27, a claimant whose claim is denied on the
basis that the evidence has not established that the 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 requesting a Hearing Officer
determination with respect to the same. Although providing an
alternative to a Hearing Officer determination, the process is
cumbersome, confusing to claimants, and since fiscal year 2011, fewer
than 10 claimants have sought to take advantage of this provision. Due
to its lack of use, BJA proposes to remove this rule, but would
continue its application for those claims currently in the
reconsideration process. For the reasons discussed, BJA also proposes
to remove Sec. 32.28 and provisions in Sec. 32.29 referring to such
motions.
Sec. 32.33 Definitions
Section 32.33 provides definitions applicable to PSOB education
benefits. OJP proposes to add new definitions or revise existing
definitions in Sec. 32.33 as follows:
Child of an eligible public safety officer: The proposed
rule would clarify that an individual found to be an eligible
beneficiary under 42 U.S.C. 3796(a)(6) (i.e., a person who would be
eligible for death benefits as a child but for his age), is not a child
of an eligible public safety officer under subpart D, and thus not
eligible for educational assistance under the provisions of 42 U.S.C.
3796d-1 through 42 U.S.C. 3796d-7.
Dependent: The proposed rule would eliminate this
definition, as the Dale Long Act (sec. 1086 of Pub. L. 112-239) removed
the term from the PSOB Act.
Educational expenses: The proposed rule would revise this
definition to provide that such expenses refers to out-of-pocket
expenses incurred by a claimant or claimant's family. The proposed rule
is intended to provide that PSOB education benefits are to reimburse
claimants for those expenses actually incurred for tuition, fees, and
that other expenses and are not available when an educational
institution has waived or otherwise discounted tuition, fees, or the
cost of other expenses for the claimant. The proposed rule provides
that in such circumstances, BJA would calculate reimbursement based on
the actual costs incurred, not the amount of tuition or
[[Page 57363]]
fees charged before a waiver or other discount is applied.
Eligible dependent: The proposed rule would eliminate this
definition as the Dale Long Act (sec. 1086 of Pub. L. 112-239) removed
the term from the PSOB Act.
Tax Year: The proposed rule would remove this definition
as the Dale Long Act (sec. 1086 of Pub. L. 112-239) removed the term
from the PSOB Act.
Section 32.34 PSOB Office Determination
Consistent with proposed Sec. 32.5(o), which consolidates all
abandonment provisions into a single paragraph, the proposed rule would
remove paragraph (b), which prescribes abandonment provisions for
disability claims. Consistent with revisions to the definitions in
Sec. 32.33, the proposed rule would also remove references to
``threshold claims.''
Section 32.41 Scope of Subpart
The proposed rule would remove all references to Sec. 32.27
consistent with the proposal to remove Sec. Sec. 32.27, 32.28, and
32.29.
Section 32.42 Time for Filing Requests for Determination
The proposed rule would remove all references to Sec. 32.27
consistent with the proposal to remove Sec. Sec. 32.27, 32.28, and
32.29.
Section 32.44 Hearing Officer Determination
The proposed rule would, consistent with proposed Sec. 32.10,
require that Hearing Officers seek legal advice from PSOB Counsel
before determining a claim. Consistent with proposed Sec. 32.5(o),
which consolidates all abandonment provisions into a single paragraph,
the proposed rule would remove paragraph (c), which prescribes
abandonment provisions for Hearing Officer determinations.
Section 32.45 Hearings
The proposed rule would clarify that, at a hearing, Hearing
Officers are the only individual permitted to examine or question a
claimant, other than a claimant's own representative, if any. The
purpose of the proposed this rule is to preserve the non-adversarial
nature of the Hearing Officer determination and to make clear that a
hearing is not for purposes of providing claimants with the opportunity
to engage in trial-type discovery as to other claimants.
Section 32.54 Director Determination
Consistent with proposed Sec. 32.5(o), which consolidates all
abandonment provisions into a single paragraph, the proposed rule would
remove paragraph (b), which prescribes abandonment provisions for
Director determinations.
V. Regulatory Requirements
Executive Order 12866 and 13563--Regulatory Planning and Review
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation, and in accordance with Executive Order
13563, ``Improving Regulation and Regulatory Review,'' section 1(b),
General Principles of Regulation. Although not an economically
significant rulemaking under Executive Orders 12866 and 13563, the
Office of Justice Programs has determined that this proposed rule is a
``significant regulatory action'' under section 3(f) of the Executive
Order, and accordingly this rule has been reviewed by the Office of
Management and Budget (OMB).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). As
explained below, the agency has assessed the costs and benefits of this
proposed rule as required by Executive Order 12866 and has determined
that the benefits of the proposed rule justify the costs.
A. Provisions That Define When an Individual Is a Firefighter
Based on the number of claims received in the past involving
similar situations and the circumstances of such claims, OJP estimates
that the revised provisions could increase approvals by approximately 1
claim per year. If all such claims were paid at the current rate, the
annual PSOB Program death and disability benefit cost would be
increased by $339,881. Based on amounts appropriated in FY2016 for PSOB
Program death benefits (``such sums as necessary''--estimated at
$71,323,000) and disability and education benefits ($16,300,000), the
agency knows that it could pay the death claims from its current
appropriations, and estimates that it could pay the disability claims
from its current appropriations.
B. Provisions That Define When an Organization or Entity Is a Volunteer
Fire Department
Under existing law and regulations, BJA currently determines that
certain volunteer fire departments qualify as public agencies, and, as
a result, that qualified firefighters serving such agencies qualify as
public safety officers. In addition, the proposed definition of
``volunteer fire department'' does not expand the number or type of
organizations that qualify as a public agency under the law but rather
only codifies the agency's interpretation of the status of such
organizations as a public agency based on existing provisions of law
and regulations. As such, OJP estimates that there are no additional
death or disability benefit costs associated with this provision.
C. Provisions Pertaining to the Filing of an Application for Benefits,
That Define When an Individual Is a Public Safety Officer, When an
Officer Has Sustained a Line of Duty Injury, an Officer Is Permanently
and Total Disabled When Payment of Benefits Is Prohibited, When
Individuals Are Ineligible for Payment, and Related Matters
Based on the number of claims received in the past involving
similar situations and the circumstances of such claims, OJP estimates
that the revised provisions, taken together, could increase approvals
by approximately 9 claims per year. If all 9 claims were paid at the
current rate, the annual PSOB Program death and disability benefit cost
would be increased by $3,058,929. Based on amounts appropriated in
FY2016 for PSOB Program death benefits (``such sums as necessary''--
estimated at $71,323,000) and disability and education benefits
($16,300,000), the agency knows that it could pay the death claims from
its current appropriations, and estimates that it could pay the
disability claims from its current appropriations.
D. Provisions Pertaining to the Admissibility, Sufficiency, Evaluation,
and Disclosure of Evidence Submitted in PSOB Claims, and Related
Matters
The primary benefit of the proposed rules is that the revised
requirements would reduce the burden on claimants to establish
eligibility for benefits and provide a corresponding reduction in the
agency's processing burden in gathering and evaluating such evidence.
The agency estimates that this across-the-board reduction in burden for
both claimants and the agency will translate into reduced processing
time for claims,
[[Page 57364]]
more timely determinations, and improved delivery of benefits. In terms
of benefit costs, the agency estimates that there will not be a
significant increase in claims approved as compared to the previous
regulatory criteria. Accordingly, the proposed rule does not
significantly increase benefit costs.
E. Provisions Concerning the Fees That May Be Charged for
Representation in PSOB Claims
The primary benefit of the proposed rule is that it makes it easier
for individuals seeking benefits to obtain qualified representation. In
eliminating restrictions on the types of fee agreements permitted in
representation for PSOB claims, eliminating the maximum hourly rate for
representative's fees in favor of a percentage-based maximum limit, and
establishing a presumption of reasonableness for fees below certain
amounts, the agency believes that the proposed rules would encourage
more attorneys to provide representation in PSOB claims. A secondary
benefit of the proposed rules is that, in eliminating automatic review
of all petitions for fees, the proposed rule will reduce agency burden
and permit the agency to reallocate these resources to processing
claims. These provisions have no impact on benefit costs.
F. Provisions Establishing When an Application for Benefits Is Complete
and Will Be Accepted for Processing as a Claim
The primary benefit of the proposed rule defining a ``complete
application'' is that it will (1) provide clarity to applicants for
benefits as to precisely what documents and information are required
for the agency to begin processing the application as a claim, and (2)
enable the agency to allocate its resources to those applications that
are sufficiently complete to warrant a determination on the merits. A
secondary benefit of the proposed rule is that, as the agency
transitions further to an entirely paperless processing system, the
proposed rule would facilitate processing by releasing for processing,
with few exceptions, only complete applications. These provisions have
no impact on benefit costs.
G. Provisions Establishing the Scope of Administrative Legal Review of
PSOB Claims
The primary benefit of the proposed rule is that it makes
transparent the role of PSOB Counsel in the processing of claims. These
provisions have no impact on benefit costs, and no impact on
administrative or personnel costs.
H. Provisions Pertaining to Educational Assistance and Other Matters
Necessary To Implement the Proposed Rule
The primary benefit of the proposed rule is that it makes clear how
educational expenses are calculated in the processing of such claims
and implements recent amendments to the Act. These provisions have no
impact on benefit costs.
I. Personnel and Training Costs for Agency Staff
As PSOB claims and applications under the provisions of the
proposed rule would be processed by existing staff, the agency would
not incur additional personnel costs in processing these claims. OJP
acknowledges that there would be some costs associated with training
current staff; however, OJP estimates that such costs would be nominal
as such training is ordinarily conducted in-house by existing legal and
program staff and is scheduled and conducted to minimize disruptions to
claims processing.
This proposed rule would impose no costs on state, local, or tribal
governments, or on the private sector.
Executive Order 13132--Federalism
This proposed rule would not have substantial direct effects on the
States, on the relationship between the federal government and the
States, or on distribution of power and responsibilities among the
various levels of government. The PSOB program statutes provide
benefits to individuals and do not impose any special or unique
requirements on States or localities. Therefore, in accordance with
Executive Order No. 13132, it is determined that this proposed rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988--Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) & (b)(2) of Executive Order No. 12988. Pursuant to
section 3(b)(1)(I) of the Executive Order, nothing in this proposed
rule or any previous rule (or in any administrative policy, directive,
ruling, notice, guideline, guidance, or writing) directly relating to
the Program that is the subject of this rule is intended to create any
legal or procedural rights enforceable against the United States,
except as the same may be contained within part 32 of title 28 of the
Code of Federal Regulations.
Regulatory Flexibility Act
This proposed rule would not have a significant economic impact on
a substantial number of small entities for the following reasons: This
proposed rule addresses federal agency procedures; furthermore, this
proposed rule would make amendments to clarify existing regulations and
agency practice concerning public safety officers' death, disability,
and education benefits and would do nothing to increase the financial
burden on any small entities. Therefore, an analysis of the impact of
this proposed rule on such entities is not required under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Paperwork Reduction Act of 1995
This proposed rule would impose or modify reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(PRA) (44 U.S.C. 3501 et seq.). The PRA requires certain actions before
an agency can adopt or revise a collection of information, including
publishing a summary of the collection of information and a brief
description of the need for and proposed use of the information. 44
U.S.C. 3507.
The proposed rule includes paperwork requirements in three
collections of information previously approved by OMB for the PSOB
Program. OJP published in the Federal Register on January 11, 2016, a
60-day notice of ``Agency Information Collection Activities'' for each
of the following forms: Claim for Death Benefits (OMB Number 1121-
0024), Report of Public Safety Officer's Death (OMB Number 1121-0025),
and Public Safety Officers' Disability Benefits (OMB Number 1121-0166).
In calculating the burden associated with these forms/collections, OJP
reviewed its previous burden estimates and updated these to reflect the
time required for claimants to gather the many different documents
necessary to establish eligibility for these benefits, e.g., birth
certificates, marriage certificates, divorce decrees (where
applicable), public agency determinations as to death or disability
benefits, medical records, etc. Information about the proposed
collections is as follows:
Claim for Death Benefits--Overview of Information Collection
1. Type of Information Collection: Reinstatement with change of a
previously approved collection.
2. The Title of the Form/Collection: Claim for Death Benefits.
3. The agency form number, if any, and the applicable component of
the
[[Page 57365]]
Department sponsoring the collection: Bureau of Justice Assistance,
Office of Justice Programs, United States Department of Justice.
4. Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Eligible survivors of fallen public
safety officers.
Abstract: BJA's Public Safety Officers' Benefits (PSOB) Office will
use these Claim Form information to confirm the eligibility of
applicants to receive Public Safety Officers' Death Benefits.
Eligibility is dependent on several factors, including public safety
officer status, an injury sustained in the line of duty, and the
claimant status in the beneficiary hierarchy according to the PSOB Act.
In addition, information to help the PSOB Office identify an individual
is collected, such as Social Security numbers, telephone numbers, and
email addresses. Changes to the claim form have been made in an effort
to streamline the application process and eliminate requests for
information that are either irrelevant or already being collected by
other means.
OJP estimates that no more than 350 respondents will apply each
year. Each application takes approximately 120 minutes to complete. OJP
estimates that the total public burden (in hours) associated with the
collection can be calculated as follows: Total Annual Reporting Burden:
350 x 120 minutes per application = 42,000 minutes/by 60 minutes per
hour = 700 hours.
Public Safety Officer's Death--Overview of Information Collection
1. Type of Information Collection: Reinstatement with change of a
previously approved collection.
2. The Title of the Form/Collection: Report of Public Safety
Officer's Death.
3. The agency form number, if any, and the applicable component of
the Department sponsoring the collection: Bureau of Justice Assistance,
Office of Justice Programs, United States Department of Justice.
4. Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Public safety agencies experiencing
the death of a public safety officer according to the PSOB Act.
Abstract: BJA's Public Safety Officers' Benefits (PSOB) Office will
use these Report of Public Safety Officer's Death Form information to
confirm the eligibility of applicants to receive Public Safety
Officers' Death Benefits. Eligibility is dependent on several factors,
including public safety officer status, an injury sustained in the line
of duty, and the claimant status in the beneficiary hierarchy according
to these Act. In addition, information to help the PSOB Office identify
an individual is collected, such as Social Security numbers, telephone
numbers, and email addresses. Changes to the report form have been made
in an effort to streamline the application process and eliminate
requests for information that are either irrelevant or already being
collected by other means.
OJP estimates that no more than 350 respondents will apply each
year. Each application takes approximately 240 minutes to complete. OJP
estimates that the total public burden (in hours) associated with the
collection can be calculated as follows: Total Annual Reporting Burden:
350 x 240 minutes per application = 84,000 minutes/by 60 minutes per
hour = 1,400 hours.
Public Safety Officers' Disability Benefits--Overview of Information
Collection
1. Type of Information Collection: Reinstatement with change of a
previously approved collection.
2. The Title of the Form/Collection: Public Safety Officer's
Disability Benefits.
3. The agency form number, if any, and the applicable component of
the Department sponsoring the collection: Bureau of Justice Assistance,
Office of Justice Programs, United States Department of Justice.
4. Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Public safety officers who were
permanently and totally disabled in the line of duty.
Abstract: BJA's Public Safety Officers' Benefits (PSOB) Office will
use the PSOB Disability Application information to confirm the
eligibility of applicants to receive Public Safety Officers' Disability
Benefits. Eligibility is dependent on several factors, including public
safety officer status, injury sustained in the line of duty, and the
total and permanent nature of the line of duty injury. In addition,
information to help the PSOB Office identify individuals is collected,
such as Social Security numbers, telephone numbers, and email
addresses. Changes to the application form have been made in an effort
to streamline the application process and eliminate requests for
information that are either irrelevant or already being collected by
other means.
OJP estimates that no more than 100 respondents will apply each
year. Each application takes approximately 300 minutes to complete. OJP
estimates that the total public burden (in hours) associated with the
collection can be calculated as follows: Total Annual Reporting Burden:
100 x 300 minutes per application = 30,000 minutes/by 60 minutes per
hour = 500 hours.
Unfunded Mandates Reform Act of 1995
This proposed rule would 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 program 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.
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.
Accordingly, for the reasons set forth in the preamble, part 32 of
chapter I of title 28 of the Code of Federal Regulations is proposed to
be amended as follows:
PART 32--PUBLIC SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL
ASSISTANCE BENEFITS CLAIMS
0
1. The authority citation for 28 CFR part 32 continues to read as
follows:
Authority: 42 U.S.C. ch. 46, subch. XII; 42 U.S.C. 3782(a),
3787, 3788, 3791(a), 3793(a)(4) & (b), 3795a, 3796c-1, 3796c-2; sec.
1601, title XI, Pub. L. 90-351, 82 Stat. 239; secs. 4 through 6,
Pub. L. 94-430, 90 Stat. 1348; secs. 1 and 2, Pub. L. 107-37, 115
Stat. 219.
0
2. Amend Sec. 32.2 by redesignating paragraphs (e) and (f) as
paragraphs (f) and (g), respectively, and adding new paragraphs (e) and
(h) to read as follows:
Sec. 32.2 Computation of time; filing.
* * * * *
(e) In determining whether an application, claim, or other document
will be considered if filed after the time prescribed for such filing
has passed, good cause for such filing (excluding a lack of knowledge
about the PSOB Program) may be found if the individual acted with
reasonable diligence after any circumstance contributing to the delay
was removed, and the delay was attributable to--
(1) Circumstances beyond the individual's control such as not
having reached the age of majority, extended illness, or mental or
physical incapacity;
(2) Incorrect information provided by the public agency in which
the public safety officer served, or another public
[[Page 57366]]
agency, related to the filing of a PSOB claim that the individual
relied upon to his detriment;
(3) A determination of the officer's (or survivor's) eligibility or
entitlement to death or disability benefits by the officer's public
agency or other public agency, made after the time for filing has
passed; or
(4) Other unavoidable circumstances demonstrating that the
individual could not be reasonably expected to know about the time
limits for filing an application or claim.
* * * * *
(h) The Director may, after publishing a Notice in the Federal
Register consistent with 5 U.S.C. 552(a)(1)(C), and providing
reasonable notice through the PSOB Program Web site, require all
applications, claims, and supporting materials to be filed in
electronic or other form as the Director shall prescribe.
* * * * *
0
3. Amend Sec. 32.3 as follows:
0
a. Add the definitions of ``Agent'' and ``Attorney''.
0
b. In the definition of ``Authorized commuting'' add ``, including
reasonable return travel'' after ``within his line of duty''.
0
c. Revise the definition of ``Child of a public safety officer''.
0
d. Remove the definition of ``Consequences of an injury that
permanently prevent an individual from performing any gainful work''.
0
e. Revise the definitions of ``Department or agency'',
``Determination'', ``Divorce'', ``Employee'', ``Firefighter'', ``Gross
negligence'', ``Injury'', ``Injury date'', ``Involvement'', ``Line of
duty activity or action'', and ``Line of duty injury''.
0
f. Add the definition of ``Medical probability.''
0
g. Revise the definitions of ``Official capacity'' and ``Officially
recognized or designated public employee member of a squad or crew''.
0
h. Add the definition of ``On-site hazard management''.
0
i. Revise the definition of ``Parent-child relationship''.
0
j. Add the definition of ``PSOB Counsel''.
0
k. Remove the definitions of, and ``Public employee member of a squad
or crew,'' and ``Stress or strain.''
0
l. Revise the definitions of ``Suppression of fire'' and ``Voluntary
intoxication''.
0
m. Add the definition of ``Volunteer fire department''
The revisions and additions read as follows:
Sec. 32.3 Definitions
* * * * *
Agent means an individual who provides representative services to
an individual seeking benefits under the Act and is not an attorney as
provided in this part.
* * * * *
Attorney means a member in good standing of a State bar.
* * * * *
Child of a public safety officer means an individual--
(1) Who meets the definition provided in the Act, at 42 U.S.C.
3796b(3), and
(2) With respect to whom the public safety officer's parental
rights have not been terminated, as of the injury date.
* * * * *
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);
(3) An entity created by interstate compact between two or more
States or between a State or States and the District of Columbia with
the consent (through consenting or enabling legislation, or similar
mechanism) by the United States Congress; or
(4) 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, the
determination described in the Act, at 42 U.S.C. 3796(c), or any
recommendation under Sec. 32.54(c)(3).
* * * * *
Divorce means a legally valid, i.e., court-ordered, dissolution of
marriage.
* * * * *
Employee does not include--
(1) Any independent contractor;
(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; or
(3) Any active duty member of the armed forces.
* * * * *
Firefighter means (1) An individual who--
(i) Is trained in--
(A) Suppression of fire; or
(B) Hazardous-material response; and
(ii) Has the legal authority and responsibility to engage in the
suppression of fire, as--
(A) 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
(B) An individual otherwise included within the definition provided
in the Act, at 42 U.S.C. 3796b(4); or
(2) An individual who is a participant in an official training
program of the officer's public agency that is mandatory for that
individual's employment or certification as a firefighter and such
training program involves the suppression of fire or hazardous-material
response.
* * * * *
Gross negligence means a reckless departure from the ordinary care
used by similarly situated public safety officers under circumstances
where it is highly likely that serious harm will follow.
* * * * *
Injury--(1) Injury means--
(i) A traumatic physical wound or a traumatized condition of the
body, or the increase in severity of such an existing wound or
condition, directly and proximately caused by--
(A) External force such as bullets or physical blows;
(B) Exposure to external factors such as chemicals, electricity,
climatic conditions, infectious disease, radiation, virus, or bacteria;
(C) Heatstroke; or
(D) Acute and immediate musculoskeletal strain or muscle damage
such as a disc herniation or rhabdomyolysis,
(ii) But does not include--
(A) Any occupational disease;
(B) Any chronic, cumulative, or progressive condition of the body;
(C) Cardiovascular disease; or
(D) Any mental health condition including post-traumatic stress
disorder, depression, or anxiety.
(2) With respect to claims based on a fatal heart attack, stroke,
or vascular rupture, injury also means the presumption of personal
injury established when the requirements of 42 U.S.C. 3796(k) are
satisfied.
* * * * *
Injury date--(1) In general, injury date means the time of the line
of duty injury that--
(i) Directly and proximately results in the public safety officer's
death, with respect to a claim under--
(A) Subpart B of this part; or
(B) Subpart D of this part, by virtue of his death; or
[[Page 57367]]
(ii) Directly (or directly and proximately) results in the public
safety officer's total and permanent disability, with respect to a
claim under--
(A) Subpart C of this part; or
(B) Subpart D of this part, by virtue of his disability.
(2) With respect to claims under the Act, at 42 U.S.C. 3796(k),
injury date means the time of the public safety officer's qualifying
engagement or participation referred to in the Act at 42 U.S.C.
3796(k)(1).
* * * * *
Involvement--An individual is involved in crime and juvenile
delinquency control or reduction, or enforcement of the criminal laws
(including juvenile delinquency), only if the individual is an officer,
or in the case of an officer trainee, an employee, of a public agency
and, in that capacity, is recognized by such agency, or the relevant
government (or, at a minimum, not denied by such agency, or the
relevant government) as having--
(1) Legal authority 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, or
(2) Legal authority to participate in an official training program
of the officer's public agency that is mandatory for that individual's
employment or certification as a police officer, corrections officer,
probation officer, or their equivalent.
* * * * *
Line of duty activity or action--Activity or an action is performed
in the line of duty if it is not described in the Act, at 42 U.S.C.
3796a(1), in the case of a public safety officer who is--
(1) A law enforcement officer or firefighter--
(i) Whose primary function (as applicable) is public safety
activity, only if 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
official training programs of his public agency) 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 have been so obligated or
authorized at the time performed (or, at a minimum, does not deny (or
has not denied) it to have been such); or
(ii) Whose primary function is not public safety activity, only
if--
(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 have
been so obligated or authorized at the time performed (or, at a
minimum, does not deny (or has not denied) it to have been such); and
(B) It is performed (as applicable) in the course of public safety
activity (including emergency response activity the agency is
authorized to perform), or taking part (as a trainer or trainee) in an
official training program of his public agency for such activity
(including participation as a trainee in an official training program
of his public agency that is mandatory for that individual's employment
or certification as a firefighter, police officer, corrections officer,
probation officer, or equivalent), and such agency (or the relevant
government) legally recognizes it to have been such at the time
performed (or, at a minimum, does not deny (or has not denied) it to
have been such); or
(iii) Only if it constitutes public safety activity, is performed
in the course of responding to an emergency situation that the officer
did not create through his own actions, requires prompt decisions and
action to save another human life, and is not contrary to the law of
the jurisdiction in which performed;
(2) A member of a rescue squad or ambulance crew, only if 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 or nonprofit entity he serves, it is performed in the
course of engaging in rescue activity or providing emergency medical
services, and such agency (or the relevant government) or nonprofit
entity legally recognizes it to have been such at the time performed
(or, at a minimum, does not deny (or has not denied) it to have been
such; or
(3) A disaster relief worker, only if, 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 to have been such at the time performed (or, at a
minimum, does not deny (or has not denied) it to have been such); or
(4) A chaplain, only if--
(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 to have been such at the
time performed (or, at a minimum, does not deny (or has not denied) it
to have been 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 to have been such at the time
performed (or, at a minimum, does not deny (or has not denied) it to
have been 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) Such injury resulted from the injured party's status as a
public safety officer, or was sustained in retaliation for line of duty
actions taken by the officer or other public safety officers.
* * * * *
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.
* * * * *
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); or
(3) His acts and omissions while responding to an emergency for
purposes of saving human life constitute a line of duty action or
activity as defined in this part.
* * * * *
Officially recognized or designated employee or volunteer member of
a rescue squad or ambulance crew means an employee or volunteer member
of a rescue squad or ambulance crew who--
(1) Is officially recognized (or officially designated) as such an
employee or volunteer member, by the public agency or nonprofit entity
serving the public under whose auspices the squad or crew operates, and
(2) Is engaging in rescue activity or in the provision of emergency
medical services as authorized or licensed by
[[Page 57368]]
law and by the applicable agency or entity.
* * * * *
On-site hazard management means on-site hazard evaluation and
providing scene security or directing traffic in response to any fire,
rescue, or law enforcement emergency.
* * * * *
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).
* * * * *
PSOB Counsel means the legal staff within BJA that provides
programmatic legal advice to PSOB determining officials and performs
legal review of PSOB Program claims and related matters.
* * * * *
Suppression of fire means extinguishment, physical prevention,
containment of fire, and on-site hazard management.
* * * * *
Voluntary intoxication at the time of death or catastrophic injury
means the following, as shown by any commonly accepted tissue, -fluid,
or -breath test or by other competent evidence:
(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; or
(ii) In any claim in which a public safety officer's death occurred
after the injury date, 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); and
(B) As of the injury date; or
(2) With respect to drugs or other substances, it means
intoxication as defined in the Act, at 42 U.S.C. 3796b(5), as evidenced
by--
(i) The officer acting in an intoxicated manner as of the injury
date, unless convincing evidence demonstrates that the introduction of
drugs or other substances was not an intentional act of the officer's;
or
(ii) The presence (as of the injury date) in the body of the public
safety officer of drugs or substances included on Schedules I-III of
the drug control and enforcement laws (see 21 U.S.C. 812(a)), unless
convincing evidence demonstrates that--
(A) The introduction of such drug or other substance was not an
intentional act of the officer's, or
(B) The drug or other substance would not produce intoxication in
the amount present in the public safety officer's body.
* * * * *
Volunteer fire department--a volunteer fire department is an
instrumentality within the meaning of the Act at 42 U.S.C. 3796b(8)
if--
(1) It is legally established as a nonprofit entity serving the
public,
(2) It is legally established and operates solely for the purpose
of providing fire protection and related services to or on behalf of a
public agency or agencies, and
(3) It provides fire protection and related services to the public
without preference or subscription.
0
4. Amend Sec. 32.5 as follows:
0
a. Revise paragraph (a).
0
b. Remove paragraphs (c) and (d)(3).
0
c. Redesignate paragraph (b) as paragraph (c).
0
d. In paragraph (i) add ``and physically stressful'' after ``non-
routine''.
0
e. Add new paragraphs (b), (k), (l), and (m).
The revision and additions read as follows:
Sec. 32.5 Evidence.
(a) Except as otherwise may be expressly provided in the Act or
this part, a claimant is responsible for establishing all issues of
fact for the particular benefit sought by the standard of proof of
``more likely than not.''
(b) The evidence that a claimant produces, both circumstantial and
direct, must be credible, probative, and substantial, and, when deemed
necessary by a PSOB determining official, produced in original format
or certified as a true and exact copy of a record by a custodian of
such records or other person capable of verifying the authenticity of
such records.
* * * * *
(k) In instances where the determining official finds that there is
a balance of positive and negative evidence for an issue material to
the particular benefit sought, the PSOB determining official will
resolve the point in favor of the payment of benefits. Such a finding
of equivalence must be based on reason, logic, common sense, and the
determining official's experience, and, under no circumstances, may a
lack of evidence in support of a particular fact be understood to
establish or create such equivalence.
(l) A PSOB determining official may require from a claimant proof
of birth, death, disability, earnings, education, employment, expenses,
injury, relationship, marriage, or other information deemed necessary
to establish eligibility for a benefit under the Act. A PSOB
determining official may also require waivers, consents, or
authorizations from claimants to obtain directly from third parties
tax, medical, employment, or other information that the PSOB
determining official deems relevant in determining the claimant's
eligibility, and may request an opportunity to review original
documents submitted in connection with the claim.
(m) In the absence of reasonable excuse or justification, when
evidence necessary to a determination on a claim that has been
requested in writing in connection with a complete claim for benefits
is not filed with the PSOB Office within one year of the date of such
request, or a claimant has otherwise failed to pursue in a timely
fashion a determination on his or her claim, the claim will be
considered as abandoned, as though never filed. Not less than 33 days
prior to the PSOB determining official finding the claim to be
abandoned, the PSOB Office shall serve the claimant with notice of
intent to deem the claim abandoned. In the event of abandonment, the
time periods prescribed for filing an initial application for benefits
or other filing deadline are neither tolled nor applicable. A claimant
may reopen an abandoned claim within 180 days from the date of
abandonment provided claimant files with the PSOB Office a complete
claim, including any information previously requested but not provided.
After a claim for benefits has been abandoned and a complete claim has
not been filed with the PSOB Office in the time prescribed for
reopening such claim, no further action on the claim will be taken by
the agency.
0
5. Revise Sec. 32.7 to read as follows:
Sec. 32.7 Fees for representative services.
(a) Only attorneys, as defined in this part, or an individual
working under the direct supervision of an attorney and for whose
conduct the attorney is responsible for under applicable Rules of
Professional Conduct (e.g., a paralegal), may charge fees for
representative services provided in connection with any claim. Fees
sought for representative services provided in connection with any
claim must be reasonable. Subject to paragraphs (e) and (f) of this
section, fees may be based on a fixed fee, hourly rate, a percentage
[[Page 57369]]
of benefits recovered, or a combination of such bases. An authorization
under paragraph (c) 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 level of administrative or judicial review to which the
claim was pursued and the point at which the petitioner entered the
proceedings;
(6) The ordinary, usual, or customary fee charged by other persons
(and by the petitioner) for services of a similar nature; and
(b) Before submitting the petition described in paragraph (c) of
this section, a person seeking to receive any amount of fees from a
claimant for representative services provided in connection with any
claim under the Act shall file with the PSOB Office a copy of the fee
agreement.
(c) To receive fees for representative services provided in
connection with any claim, a representative shall 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 (c)(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 (c)(6)(ii) of this
section.
(d) 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.
(e) No amount shall be authorized under this section for--
(1) Fees in excess of 12 percent of the total death or disability
benefit payment available to a claimant regardless of how the fee
agreement is structured; or
(2) 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.
(f) Fees otherwise qualifying under this section shall be presumed
reasonable--
(1) In a claim determined by the PSOB Office that does not exceed 8
percent of the total death or disability benefit payment available to a
claimant, or
(2) In a claim determined by the Hearing Officer or Director that
does not exceed 10 percent of the total death or disability benefit
payment available to a claimant.
(g) The presumptions in paragraph (f) of this section may be
rebutted through an examination of the factors in paragraph (a) of this
section establishing by clear and convincing evidence that the fee is
unreasonable.
(h) 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.
(i) 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.
0
6. Add Sec. 32.9 to read as follows:
Sec. 32.9 Complete applications.
(a) Before an application for benefits under the Act will be
processed as a claim, i.e., assigned a claim number by the PSOB Office,
determined by the PSOB Office, and reviewed for legal sufficiency, such
application must be ``complete'' as provided in this section.
(b) Except as indicated in paragraph (d) of this section, an
application for death benefits or disability benefits shall constitute
a complete application only if all of the basic required documents
identified on the ``PSOB Checklist of Required Documents for Filing a
PSOB Death [or Disability, as appropriate] Benefits Claim,'' available
at the PSOB Program Web site, are filed with the PSOB Office.
(c) If an applicant files with the PSOB Office an application for
benefits that, pursuant to paragraph (b) of this section, is not
complete, the PSOB Office will serve the applicant with written notice
of the information necessary to complete the application and defer any
further processing of the application and consideration as a claim
until such Office receives all of the information described in
paragraph (b).
(d) An applicant's inability to file evidence as a result of a
refusal by a public agency in which the officer served to provide the
information identified in this section (or the public agency's
demonstrated inability to provide such information) shall not render an
application incomplete if the applicant provides to the PSOB Office
evidence demonstrating that such inability to file basic required
documents is not due to any fault of the applicant.
0
7. Add Sec. 32.10 to read as follows:
Sec. 32.10 PSOB Counsel.
(a) Before determining a claim for benefits under the Act, PSOB
determining officials shall seek legal advice from PSOB Counsel.
(b) Legal advice provided by PSOB Counsel to PSOB determining
officials shall be limited to the interpretation and application of the
PSOB Act and implementing regulations and law and regulations
referenced in or having direct application to the PSOB Act or its
implementing regulations.
(c) Unless otherwise ordered by the Assistant Attorney General for
the Office of Justice Programs, the scope of PSOB Counsel's legal
advice shall not include the review of findings of fact made by PSOB
determining officials.
0
8. Revise Sec. 32.12 as follows:
Sec. 32.12 Time for filing claim.
(a) Unless, for good cause shown, as defined in Sec. 32.2(e) of
this part, the Director extends the time for filing, no application
shall be considered if it is filed with the PSOB Office more than
[[Page 57370]]
three years after the public safety officer's death.
(b) An applicant may file with the PSOB Office such supporting
documentary, electronic, video, or other nonphysical evidence and legal
arguments as he may wish to provide.
0
9. Amend Sec. 32.13 as follows:
0
a. Revise the definition of ``Beneficiary of a life insurance policy of
a public safety officer''.
0
b. Remove from the definition of ``child-parent relationship'' the
phrase ``, as shown by convincing evidence''.
0
c. Revise the definition of ``Engagement in a situation involving law
enforcement, fire suppression, rescue, hazardous material response,
emergency medical services, prison security, disaster relief, or other
emergency response activity''.
0
d. Remove the definition of ``Medical probability''.
0
e. Revise the definitions of ``Nonroutine strenuous physical activity''
and ``Nonroutine stressful physical activity''.
The revisions read as follows:
Sec. 32.13 Definitions.
* * * * *
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) or otherwise unterminated, 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) did not take
place, unless preponderant evidence demonstrates that--
(i) It did not take place for reasons other than personal
differences between the officer and the individual; or
(ii) No such revocation was intended by the officer;
(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 after the date of designation and before such date of
death, unless preponderant evidence demonstrates that no such
revocation was intended by the officer, and.
(3) Any designation of an individual, who was living on the date of
the officer's death, but who dies before a determination of PSOB death
benefits, shall be considered to be revoked by such officer on the date
of the officer's death in favor of the officer's living contingent
beneficiary or beneficiaries, if any.
* * * * *
Engagement in a situation involving law enforcement, fire
suppression, rescue, hazardous material response, emergency medical
services, prison security, disaster relief, or other emergency response
activity--A public safety officer is so engaged 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-material emergency;
(iv) Performing rescue activity;
(v) Providing emergency medical services;
(vi) Performing disaster relief activity;
(vii) Otherwise engaging in emergency response activity; or
(viii) Performing a line of duty activity or action, that had it
not been performed immediately, would have rendered the public agency
unable to perform the activities in paragraphs (1)(i) through (vii) of
this section; and
(2) The public agency he serves (or the relevant government)
legally recognizes him to have been in such course at the time of such
engagement or activity (or, at a minimum, does not deny (or has not
denied) him so to have been).
* * * * *
Nonroutine strenuous physical activity means line of duty activity
that--
(1) Is not excluded by the Act, at 42 U.S.C. 3796(l);
(2) Is not performed as a matter of routine; and
(3) Entails a vigorous level of physical exertion.
Nonroutine stressful physical activity means line of duty activity
that--
(1) Is not excluded by the Act, at 42 U.S.C. 3796(l);
(2) Is not performed as a matter of routine;
(3) Entails non-negligible physical exertion; and
(4) 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) 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 unusual 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 dangers,
threats, or hazards; and
(B) Provoke, cause, or occasion unusual alarm, fear, or anxiety.
* * * * *
0
10. Revise Sec. 32.14 to read as follows:
Sec. 32.14 PSOB Office determination.
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--
(a) Specify the factual findings and legal conclusions that support
it; and
(b) Provide information as to requesting a Hearing Officer
determination.
Sec. 32.15 [Removed]
0
11. Remove Sec. 32.15.
Sec. 32,16 [Redesignated as Sec. 32.15]
0
12. Redesignate Sec. 32.16 as Sec. 32.15 and revise newly
redesignated Sec. 32.15 to read as follows:
Sec. 32.15 Payment.
(a) For purposes of determining who qualifies as a parent under 42
U.S.C. 3796(a)(5), any biological or legally-adoptive parent whose
parental rights have not been terminated as of the injury date shall be
presumed rebuttably to be one. If evidence demonstrates that additional
individuals also qualify as the parent of a public safety officer, such
payment shall be made in equal shares.
(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.
(c) If more than one individual should qualify for payment--
(1) Under the Act, at 42 U.S.C. 3796(a)(4)(i), payment shall be
made to each of them in equal shares, except that, if the designation
itself should manifest a different distribution, payment shall be made
to each of them in shares in accordance with such distribution; or
[[Page 57371]]
(2) Under the Act, at 42 U.S.C. 3796(a)(4)(ii), payment shall be
made to each of them in equal shares.
(d) In determining whether an eligible survivor exists under 42
U.S.C. 3796(a)(2), (4), (5), or (6) such that payment must be divided
amongst such survivors, the PSOB determining official shall consider
any person (other than as defined in 42 U.S.C. 3796b(3)(C)) not to have
survived the public safety officer and thus ineligible, who, being 18
years of age or older at the date of the officer's fatal injury, has
not filed an application for benefits under 42 U.S.C. 3796(a) within
the time prescribed in this part.
Sec. 32.17 [Redesignated as Sec. 32.16]
0
13. Redesignate Sec. 32.17 as Sec. 32.16.
0
14. Revise Sec. 32.22 to read as follows:
Sec. 32.22 Time for filing claim.
(a) Unless, for good cause shown, as defined in Sec. 32.2(e) of
this part, the Director extends the time for filing, no application
shall be considered if it is filed with the PSOB Office more than three
years after the injury date.
(b) An applicant may file with the PSOB Office such supporting
documentary, electronic, video, or other nonphysical evidence and legal
arguments as he may wish to provide.
0
15. Amend 32.23 as follows:
0
a. Revise the definition of ``Gainful work''.
0
b. Remove the definition of ``Medical certainty''.
0
c. Amend the definition of ``Permanently disabled'' and ``Totally
disabled'' by removing in the introductory sentence ``certainty'' and
adding in its place ``probability''.
The revision to read as follows:
Sec. 32.23 Definitions.
* * * * *
Gainful work means work activity that is both substantial and
gainful.
(1) Substantial work activity means work activity that involves
doing significant physical or mental activities such as work that
requires a claimant to use his or her experience, skills, supervision,
or contribute substantially to the operation of a business. Evidence
that work activity may not be substantial includes--
(i) Work involving ordinary or simple tasks that a claimant cannot
perform without more supervision or assistance than is usually given
other people doing similar work,
(ii) Work involving minimal duties that make little or no demands
on a claimant and that are of little or no monetary value to an
employer;
(iii) Work performed under special conditions take into account a
claimant's impairment such as work done in a sheltered workshop; and
(iv) Work offered despite a claimant's impairment because of family
relationship, a past association with claimant's employer or other
organization to which the claimant was affiliated with, or an
employer's or affiliated organization's concern for claimant's welfare.
(2) Gainful work activity means full- or part-time work activity
that actually is compensated or is commonly compensated, but
compensation does not include reimbursement of incidental expenses such
as parking, transportation, and meals, or de minimis compensation.
* * * * *
0
16. Revise Sec. 32.24 to read as follows:
Sec. 32.24 PSOB Office determination.
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--
(a) Specify the factual findings and legal conclusions that support
it; and
(b) Provide information as to requesting a Hearing Officer
determination.
Sec. 32.25 [Removed]
0
17. Remove Sec. 32.25.
Sec. 32.26 [Redesignated as Sec. 32.25]
0
18. Redesignate Sec. 32.26 as Sec. 32.25.
Sec. Sec. 32.27 and 32.28 [Removed]
0
19. Remove Sec. Sec. 32.27 and 28.
Sec. 32.29 [Redesignated as Sec. 32.26]
0
20. Redesignate Sec. 32.29 as Sec. 32.26 and revise newly
redesignated Sec. 32.26 to read as follows:
Sec. 32.26 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.
0
21. Amend Sec. 32.33 as follows:
0
a. Revise the definition of ``Child of an eligible public safety
officer''.
0
b. Remove the definition of ``Dependent''.
0
c. Revise the definition of ``Educational expenses''.
0
d. Remove the definitions of ``Eligible dependent'', and ``Tax year''.
The revisions read as follows:
Sec. 32.33 Definitions.
* * * * *
Child of an eligible public safety officer means the child of a
public safety officer, which officer is an eligible public safety
officer, but does not include any individual described in 42 U.S.C.
3796(a)(6).
* * * * *
Educational expenses means out-of-pocket expenses actually incurred
by the claimant or claimant's family and excludes expenses not incurred
by reason of a waiver, scholarship, grant, or equivalent reduction for
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.
* * * * *
0
22. Revise Sec. 32.34 to read as follows:
Sec. 32.34 PSOB Office determination.
In the event of the PSOB Office's denying a claim, the notice it
serves upon the claimant shall--
(a) Specify the factual findings and legal conclusions that support
the denial; and
(b) Provide information as to requesting a Hearing Officer
determination.
0
23. Revise Sec. 32.41 to read as follows:
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, or D of this part, and of claims remanded
(or matters referred) under Sec. 32.54(c).
0
24. Revise Sec. 32.42 to read as follows:
Sec. 32.42 Time for filing request for determination.
(a) Unless, for good cause shown, as defined in Sec. 32.2(e) of
this part, the Director extends the time for filing, no claim shall be
determined if the request therefor is filed with the PSOB Office
[[Page 57372]]
later than thirty-three days after the service of notice of the denial
(under subpart B, C, or D of this part) of a claim.
(b) A claimant may file with his request for a Hearing Officer
determination such supporting documentary, electronic, video, or other
non-physical evidence and legal arguments as he may wish to provide.
0
25. Revise Sec. 32.44 to read as follows:
Sec. 32.44 Hearing Officer determination.
(a) Before determining a claim, the Hearing Officer shall seek
legal advice from PSOB Counsel.
(b) Upon his determining a claim, the Hearing Officer shall file a
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, which notice shall specify the factual findings and legal
conclusions that support it, and PSOB Counsel.
(c) 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.
0
26. Amend Sec. 32.45 as follows:
0
a. In paragraph (d)(1) remove ``and'' after ``cumulative evidence:''.
0
b. In paragraph (d)(2), remove the period after ``witnesses'' and add
in its place ``; and''.
0
c. Add paragraph (d)(3)
The addition reads as follows:
Sec. 32.45 Hearings
* * * * *
(d) * * *
(3) Shall be the only individual permitted to examine or question a
claimant apart from that claimant's representative, if any.
* * * * *
Sec. 32.54 [Amended]
0
27. Amend Sec. 32.54 by removing paragraph (b) and redesignating
paragraph (c) as paragraph (b).
Dated: August 2, 2016.
Karol V. Mason,
Assistant Attorney General.
[FR Doc. 2016-18811 Filed 8-19-16; 8:45 am]
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