Justice Department Finalizes Expanded Death Benefits

More than 18 months after Congress enacted two laws expanding the Public Safety Officers Benefits Act (PSOB), the U.S. Department of Justice proposed new regulations in July to implement the expanded death benefits provided in these measures.

The "Hometown Heroes Survivors Benefits Act of 2003" expanded the law to include public safety officers who die in the line of duty as a direct result of a heart attack or stroke. The "Mychal Judge Police and Fire Chaplains Public Safety Officers' Benefits Act of 2002" (named for the FDNY chaplain who was killed in the 2001 terrorist attack on the World Trade Center) revised the act in two ways. First, it adds chaplains to the definition of "public safety officers" so that chaplains for public safety agencies are eligible to receive benefits. This provision was made retroactive to Sept. 11, 2001. Second, it provides that if a public safety officer had no surviving spouse or eligible children, the benefit would be paid to the individual designated as the beneficiary on the most recently executed life insurance policy. Prior to this, parents had been the next level of beneficiary.

Unfortunately, the delay in issuing regulations to implement these laws is causing a growing list of families to wait to learn whether they qualify for PSOB benefits. The Justice Department estimated that about 65 Hometown Heroes Act cases are awaiting the final regulation in order to be resolved. This led more than a dozen fire and law enforcement organizations to write a letter in June to Attorney General Alberto Gonzales, requesting a meeting to find ways to expedite the rulemaking process.

The proposed new regulations do far more than simply implement the new laws. Instead, as Craig Sharman of the National Volunteer Fire Council (NVFC) noted, the Justice Department completely rewrote the program "from top to bottom." It used the occasion to put into the regulations administrative practices that had been adopted over three decades of processing claims, and also to reflect a variety of court decisions interpreting the act.

Indeed, the Justice Department explicitly acknowledges that it wanted to use this rulemaking to simplify and restructure the entire regulation so that it would be easier to understand and to apply. Thus, it addresses specific items related to determining whether an individual is eligible for a benefit. These include:

• Line of duty - The proposal clarifies that in order for an injury to be considered within the "line of duty," it must occur when the public safety officer is engaged in an activity that he or she is obligated or legally authorized to perform. It recognizes that the individual's agency typically is in the best position to provide evidence as to whether the activity was within the line of duty.

Serving a public agency - Confusion has arisen over the years as to whether employees (or volunteers) who serve independent contractors or non-public entities are "serving a public agency in an official capacity," as required by the law. The proposed rule clarifies these terms to require that the agency is, indeed, functioning as a public agency or with the authority of a public agency. Injury - The proposed rule defines "injury" using language nearly similar to the existing rule, but does not include any injury caused by stress or strain. This is done to conform to a federal appeals court decision. Disability - Current rules regarding the disability benefit are simplified in the proposed rule, and new procedures are proposed that would allow for a reconsideration of decisions denying disability benefits. This is being proposed in recognition of "the reality that a line-of-duty injury may not have caused the public safety officer to be totally and permanently disabled at the time of the initial claim application, but may do so with the passage of time." Limitations on benefits - The law limits benefits when there has been misconduct by a public safety officer. Among other situations, the proposal provides standards to determine whether the public safety officer was intoxicated by drugs or other substances.

The Justice Department provided a 60-day period for public comments on the proposed rules that ended on Sept. 26. During that time, the various organizations representing the fire service got together to review the proposal and identify any concerns, then submitted their comments.

It now is up to the Justice Department to review the comments and finalize the rules. The department should now move quickly to finalize these rules. There are 65 families that have been waiting for too long for an answer to their claims for benefits.

Steve Blackistone, a Firehouse contributing editor, is an attorney and a member of the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.