After passage of the Hometown Heroes Act in December 2003, a backlog of 201 claims developed during the 33 months that it took OJP to issue final regulations implementing the Act. Moreover, even after OJP issued the regulations in September 2006, its claims processing was slow because many claims had been submitted without required documentation, OGC’s legal reviews of claims were lengthy, and pathology reviews on some claims were not available. After its first year of processing claims under the Act, OJP implemented several initiatives to improve its timeliness.
We also found that OJP denied most of the Hometown Heroes Act claims it processed during the first year because of the lack of evidence demonstrating the officers engaged in “nonroutine stressful or strenuous activity.” While most of these denials met the intent of the Hometown Heroes Act, some denials were based in part on an OJP criterion that narrowly interpreted the Act. In the fall of 2007, OJP changed this criterion and issued a policy that all responses to emergency calls would be considered“nonroutine,” a revision that appears to have resulted in more approved claims.
In the sections that follow, we describe how OJP revised the PSOB regulations that govern the Hometown Heroes Act program and how a significant backlog of claim applications developed. We also describe actions OJP has taken in the past year to reduce the backlog and expedite claims processing. We then examine OJP’s decisions on claims through November 29, 2007, as well as the effect of recent policy changes.
Claims were not processed until regulations were updated.
Thirty-three months passed from the time the Hometown Heroes Act was enacted in December 2003 until OJP issued final PSOB regulations implementing the Act in September 2006. During that period, OJP accumulated a backlog of 201 claims.29 As of November 29, 2007, OJP had received an additional 90 Hometown Heroes Act claims for a total of 291 claims. Figure 2 shows the Hometown Heroes Act claims received each fiscal year from the enactment of the Act through November 2007.
|Note: Fiscal year 2008 includes data only from the first 2 months, as of November 29, 2007.
Sources: PSOB claims determinations, PSOB Office database
The PSOB Office issued its first determination on a Hometown Heroes Act claim on December 6, 2006. Over the next year, through November 29, 2007, OJP made determinations on 112 of the 291 claims (38 percent) it had received. As of November 2007, there were 179 Hometown Heroes Act claims awaiting OJP’s final determination, including many claims that had been pending for 3 or 4 years. For example, over 40 percent of the claims submitted in fiscal year (FY) 2004 had not been decided. Table 2 shows the number of claims pending and closed by fiscal year.
Table 2: Pending and Closed Claims by Fiscal Year
(as of November 29, 2007)
|Fiscal Year||Pending Claims||Closed Claims|| Total
Source: PSOB claims determinations
Although OJP could not make final determinations until the PSOB Program regulations were issued, we found OJP’s subsequent processing of claims was untimely. To assess OJP’s processing of claims, we examined how long it took OJP to process claims after issuance of the regulations.30 As shown in Figure 3, processing times for the 112 completed claims ranged from 3 to 14 months, with a median of 10 months.
|Sources: PSOB claims determinations, PSOB Office database|
We found that the PSOB Office had taken some steps to prepare claims for processing once the final regulations were issued, but these initial actions did not enable OJP to make timely determinations after the regulations were in place. Case notes in the database maintained by the PSOB Office show that while OGC was revising the regulations, PSOB Office staff reviewed each claim application, contacted claimants or points of contact, informed claimants about the status of their claims and the regulations being developed, and requested missing information or documentation based on the original PSOB Program requirements.31 Despite these efforts, three factors slowed the processing of claims after issuance of the regulations: (1) many claims were submitted without required documentation, (2) OJP OGC’s legal reviews were time consuming, and (3) OJP experienced difficulty in obtaining independent pathology reviews of PSOB claims. The following sections discuss these factors and the steps OJP has taken recently to address them.
Factor 1: Claimants submitted incomplete claims.
PSOB Office staff members told us that approximately 90 percent of the Hometown Heroes Act claims were submitted without all the information or documentation OJP needed to make a determination. We found that three issues contributed to incomplete claim submissions and the extensive time it took claimants and public safety agencies to provide the missing information. First, the PSOB Program instructions and guidelines for completing claim applications were unclear and did not provide sufficient direction to inform claimants of the information requirements. Second, some of the required documents, particularly medical records, were difficult or costly for the claimants to obtain. Third, smaller and volunteer public safety agencies did not always have the administrative structure to adequately respond to OJP’s information requests. When incomplete claim applications were received, the PSOB Office staff said they contacted claimants and public safety agencies to obtain missing information, but could not continue processing the claims until responses were received. PSOB Office staff members stated that delays resulting from obtaining necessary information from the claimants and public safety agencies added from a week to a year to the processing of individual claims. A discussion of each of these three issues follows.
Limited Instructions and Guidance on Completing Claims
We found that although information about the Hometown Heroes Act and how to submit a claim under the Act was available, the information was not presented in an understandable manner. OJP provided instructions on submitting claims that were scattered among standardized claim forms, the PSOB Program regulations, two checklists, a Hometown Heroes fact sheet, and a list of frequently asked questions about the Act. No single document took a claimant step-by-step through the application process, detailed the eligibility and beneficiary requirements, and specified all required documentation.
For example, the required standardized PSOB claim forms – Claim for Death Benefits (completed by the claimant) and Report of Public Safety Officer’s Death (completed by the public safety agency) – contained limited instructions that did not explain the claim process or list all the documents that may be required for a claim determination. Instead, the instructions referred the claimant to the PSOB Act and regulations for eligibility requirements. However, the statutory and regulatory language was not easy for claimants and public safety agencies to interpret.
We also found that although OJP had issued instructions for public safety agencies, it had not developed separate instructions specifically for claimants. Specifically, OJP had two checklists for public safety agencies (one for firefighters and one for law enforcement) that outlined all documents, reports, and information needed for the claim application. The checklists provided helpful tips to public safety agencies and encouraged properly documented submissions.32 No similar checklist existed for claimants. Therefore, a claimant who may have been working on an application without the assistance of a public safety agency may not have realized certain documentation was needed for the claim.
We also reviewed two PSOB Office documents added to the BJA website in September 2007 that contained only general information about the PSOB Program. The first, a fact sheet, provided a history of OJP’s implementation of the Hometown Heroes Act. The second, a list of frequently asked questions, addressed questions arising from concerns over PSOB Office requests for medical information and the backlog of claims. Neither provided instructions on how to fill out claims applications.
Difficulties in Obtaining Documents
The second issue that contributed to incomplete claim submissions was the difficulty and costs associated with obtaining certain required information. For example, according to PSOB Office staff and representatives of public safety agencies that we interviewed, the request to submit 10 years of medical records for the pathologist’s review was particularly challenging for some claimants. Other documents that PSOB Office staff told us have sometimes proved difficult for claimants to obtain included birth certificates, death certificates, marriage certificates, and divorce decrees. In addition, PSOB Office staff said that claimants must sometimes pay fees to obtain the required medical records and other documents.
Lack of Administrative Structure in Small and Volunteer Public Safety Agencies
The third issue that contributed to incomplete applications was the fact that many smaller public safety agencies, particularly volunteer fire and emergency services departments, lacked the administrative systems and resources to produce the required documentation. Such documents include the PSOB Report of Public Safety Officer’s Death, a second statement detailing the circumstances of the officer’s death, and other investigation, incident, or accident reports. The PSOB Director stated that unlike larger public safety agencies, many small and volunteer departments do not have extensive recordkeeping requirements or do not generate standard reports, such as daily logs of volunteers’ activities, which would facilitate the collection of documentation for a claim. Additionally, smaller departments may not have personnel designated to act specifically as a liaison or point of contact for claimants and the PSOB Office. Because only the public safety agencies can generate some of these documents, if they cannot or do not provide them, claimants may submit incomplete applications.
Factor 2: OJP OGC’s reviews of claims were lengthy.
The second factor that contributed to the slow processing of claims was the time it took OJP OGC to conduct its legal reviews of claims. From our examination of the PSOB Office database, we estimated that OGC took, on average, 50 days to review a claim; however, these reviews ranged from under 10 days to over 200 days.33 Figure 4 shows the number of days that OGC spent reviewing those claims that were completed as of November 29, 2007.
|Sources: PSOB claims determinations, PSOB Office database|
We found that the OGC’s review of some claims was lengthy because of its inefficient internal practices for requesting documentation and assigning claims to attorneys. We discuss each of these practices below.
OGC Requests for Documentation
The PSOB Director and staff told us that OGC attorneys often would not review a claim or make a final determination until all documentation was in the case file because they wanted to review the case in its entirety. However, according to PSOB staff, in some cases the additional documents were not necessary for making a determination on whether the claim was compensable under the Hometown Heroes Act. For example, documents to establish potential beneficiaries (e.g., birth certificates, marriage licenses, or divorce decrees) are not needed unless a claim is determined to be compensable.
PSOB Office staff also told us that the OGC attorneys sometimes requested additional documents and information, such as a report of a decedent’s activities for the 24 hours prior to the heart attack or stroke, even when the claim did not meet the basic criteria established by the PSOB Act or the Hometown Heroes Act. For example, a claim is not compensable if the decedent was not a public safety officer, so an activity report would have no effect on the claim determination. The OJP General Counsel told us the attorneys seek additional information because they are looking for every possible way to approve a claim. The Deputy General Counsel further stated that the attorneys in the past have asked for information that now, with greater experience, realize may not be necessary.
PSOB staff also told us that different attorneys would review the same claim at different times but not keep records of their reviews, which sometimes led to duplicative information requests.34 In addition, PSOB and OGC staff told us that the attorneys had no formal method for recording information requests in a case file, so their requests were not documented unless they were noted in the PSOB database by PSOB Office staff members. The Deputy General Counsel told us that she encourages attorneys to put information requests and comments in writing, but acknowledged that while attorneys sometimes write comments on tracking slips attached to the case files, communication is informal and often occurs through telephone or e-mail conversations. This informal system does not ensure that all communication is recorded.
In addition, the PSOB Office staff said that the length of the claims review process was extended because OGC attorneys made numerous inconsistent edits to the draft determinations prepared by the PSOB Benefits Specialists and Senior Benefits Specialists. According to PSOB Office staff, they prepared the determinations using a template developed specifically for that purpose, but OGC attorneys continued to make changes to the formatting and standard language in the template. The PSOB Office staff said the changes were sometimes based on legal issues, but more often were stylistic, with several attorneys reviewing the claims and each making individual changes according to their personal styles. According to PSOB staff, these types of changes caused confusion among the PSOB Office staff and delayed issuance of determinations. The Deputy General Counsel told us that she had directed the attorneys to cease editing based on writing style and to focus only on editing that affected the legal issues related to the claim.
OGC Case Assignments
OGC’s practice has been to assign PSOB claims, including Hometown Heroes Act claims, among many OGC attorneys, according to the attorneys we interviewed and the General Counsel. The General Counsel stated that he wanted staff attorneys to gain experience in all OJP programs, so he intentionally spread the work among a number of attorneys. As of October 2007, various types of PSOB claims (death, disability, and education) were assigned to 11 of the 16 OGC staff attorneys. Each of the 11 attorneys spent about 20 to 30 percent of his or her time on the PSOB Program.35 However, the PSOB Director believed that because so many different attorneys work on the claims on less than a half-time basis, they were less able to develop expertise on the PSOB Program and especially on the Hometown Heroes Act. The PSOB Director said she had asked OGC for a smaller cadre of attorneys to dedicate more of their time to the PSOB Program, but OGC had not changed its work assignments.
No Timeliness Standards
While discussing with OGC staff how they reviewed PSOB claims, we noted that OGC had no established timeliness standards for conducting its claims reviews.36 In response to our request for any established performance standards, the Deputy General Counsel stated the she had told attorneys to give a claim to another attorney if they could not examine the case file within 2 weeks of receipt, but that the OGC has no specific goals or measures to guide the length of the case review. The Deputy General Counsel told us that timeliness was a part of the office’s customer service standards and referred us to the OGC staff attorney performance work plans. When we reviewed these work plans, we found they included the following language under the overall goal of customer service: “Reviews client documents for legal compliance/sufficiency within the timeframe agreed upon with client office or General Counsel.” However, we did not find that OGC attorneys had made any agreements regarding timeliness with the PSOB Office staff members. Consequently, there were no established time standards for conducting the claims reviews.
Factor 3: Claims were delayed pending new contract pathologist.
The final factor that delayed OJP’s processing of Hometown Heroes Act claims was that OJP experienced difficulty in obtaining independent pathology reviews. OJP initially sent all the claims to the AFIP, where an AFIP pathologist reviewed the medical records, toxicology report, and autopsy report for each claim. This review took from 4 to 6 weeks. Then, as the claims review process progressed, OJP sent the AFIP only those claims that had been initially found to be compensable under the Act. However, in May 2007 the AFIP ceased doing any reviews for the PSOB Program because an increasing amount of its time was focused on military casualties from the war in Iraq. After the AFIP informed OJP that it could no longer perform these reviews, OJP searched for a new contract pathologist. In the interim, claims were delayed. In September 2007, OJP hired a contract pathologist to review the PSOB death claims. OJP also identified two other contract pathologists who are available should the workload require additional reviewers.
OJP has taken steps to improve the timeliness of the claims review process.
Toward the end of our review period, in the fall of 2007, the BJA and OJP OGC implemented improvements to address several of the factors that contributed to the lengthy claims review process. These initiatives included additional guidance to claimants and internal procedural changes to speed the claims review process. While early evidence suggests that some of these initiatives have improved claims processing, we could not fully determine their effect on the process because they were implemented near the conclusion of our field work.37
For example, during FY 2007, the first full year of processing claims after issuance of the final regulations, OJP issued 72 determinations. However, during just the first 2 months of FY 2008, OJP issued 40 determinations, although processing of the cases began before that time. These improvements are discussed below.
Additional Guidance and Change in Claim Requirements
To address the problem of receiving incomplete claims submissions and to reduce claimants’ response times to requests for additional documentation, OJP took the following four steps:
The Attorney General’s Guide to the Hometown Heroes Act
The BJA, with input from public safety officer associations, developed a guide to the Hometown Heroes Act for claimants and public safety agencies. The guide compiles claim application instructions in a single document that contains detailed information on the Hometown Heroes Act and the criteria used to evaluate claims. The guide also translates the legal language used in the statute and program regulations into clearer instructions. The BJA said it expected to issue the guide in February 2008.
Local Assistance State Teams
To help claimants and public safety agencies complete PSOB claim applications, the BJA awarded a grant in 2006 to the National Fallen Firefighters Foundation to develop the Local Assistance State Teams (LAST) program. When a firefighter dies in the line of duty, a team is deployed to aid the decedent’s family, the public safety agency, and colleagues with funeral arrangements, counseling¸ and submitting a PSOB claim, among other things.38 As of October 2007, 36 states and the District of Columbia had active teams. The PSOB Director said she believed the LAST program would improve the public safety community’s knowledge of the PSOB Program. She also told us that the program had already resulted in the submission of more complete PSOB claims applications than in the past. In August 2007, the BJA awarded a grant to an organization called Concerns of Police Survivors to establish the same type of program for the law enforcement community.
On October 2, 2007, the BJA Director issued a memorandum directing the PSOB Office to request 10 years of medical records for Hometown Heroes Act claims only if the evidence in a case file suggests that something other than the line-of-duty activity caused the heart attack or stroke. If an autopsy report, coroner’s report, or death certificate identifies the presence of cardiovascular disease or other risk factors, this information will not be considered unless the case file shows that the decedent knew of and continued to aggravate these conditions. The memorandum further stated that OJP will review any medical records requested from the claimant for mitigating evidence in favor of the claim.39 The PSOB Office expects this decision to reduce delays in processing of claims where medical records are not required to make a determination.
State and Local Line-of-Duty Death Benefits
Similarly, in October 2007 the OGC Deputy Counsel told us that because some states and localities do not offer death benefits for heart attacks and strokes, OGC is no longer requesting that the PSOB Office obtain documentation on payment of these benefits from claimants in those states or localities.
Changes to Internal Processing of Claims
In addition, OJP recently has introduced the following three initiatives to improve the timeliness of claims processing:
The PSOB Director started a “12-a-week” initiative in August 2007 to work through the pending Hometown Heroes Act claims and to accelerate the PSOB claims process overall. The PSOB Office staff and the Director meet weekly to discuss the 12 oldest Hometown Heroes Act claims in their caseload. The staff members determine whether the case files include all the evidence necessary to render a decision and then forward those that do to OGC for legal review. According to the PSOB Director, referral is not delayed if the case file lacks documents or information that would not affect the decision to approve or deny the claim, such as beneficiary information. The BJA Director stated in testimony before the Senate Judiciary Committee on October 4, 2007, “We are fully committed to this 12-in-a-week strategy until all claims have been processed and normalized to about seven new cases per month by March 2008.”
Outreach Administrative Contractors
In FY 2007, the PSOB Director created the position of Outreach Administrative Contractor to handle the most time-consuming tasks associated with PSOB claims processing, such as contacting claimants and public safety agencies for additional information and documents. The Director said she believed this would allow the Benefits Specialists and Senior Benefits Specialists to concentrate on analyzing case file evidence and rendering determinations. The PSOB Director hired one contractor in September 2007 and said she intended to hire at least one additional contractor if needed.
PSOB Case Management System
In October 2007, the PSOB Office began the first phase of implementing a new case management system. The PSOB Office’s previous database did not allow for detailed searches, reminders for follow-up actions on claims, or a direct link to scanned documents that accompany claims. The new system enables the Benefits Specialists to check supporting scanned documentation within the claim record, which can improve claim processing times. Further, unlike the old database, the new system can be accessed by OGC attorneys, and attorneys working on PSOB claims can view entire case files in the system and leave notes for the PSOB Office, such as requests for additional documentation or information. Thus, communication between the PSOB Office and OGC attorneys will be conducted in the electronic case file for future reference.
From September 11, 2006, to November 29, 2007, OJP made determinations on 112 of 291 Hometown Heroes Act death claims. Overall, OJP approved 47 claims and denied 65 claims. The benefits awarded in the 47 approved claims totaled $12,889,452.
We reviewed the determinations for all 112 completed Hometown Heroes Act claims to examine the reasoning behind OJP’s decisions. Because claimants and members of Congress had expressed concern that OJP’s interpretation of the Hometown Heroes Act’s terms “nonroutine stressful or strenuous physical activity” and “competent medical evidence to the contrary” resulted in unfair denials of many claims, we examined how OJP applied these terms when evaluating claims.
OJP determined that 10 of the 65 denied claims did not contain evidence to meet basic eligibility criteria established in the PSOB Act or the Hometown Heroes Act. For example, in several cases the decedent was not a public safety officer, or was not on duty in the 24 hours prior to death, or did not perform line-of duty activities.
For the remaining 55 denied claims that met the basic eligibility criteria, we found that OJP focused primarily on the claim’s evidence regarding the stressful and strenuous nature of the decedents' physical activity or training exercise. Overall, OJP concluded that the 55 claims were non‑compensable because the evidence in the applications did not sufficiently show that the public safety officer engaged in “stressful or strenuous physical activity or training.”40 Finding “competent medical evidence to the contrary” was not a factor in any of the denied claims.
We determined that OJP narrowly interpreted the Act for at least 19 claims denied during the first year of claims processing. OJP denied 19 claims in which officers had responded to calls based on a criterion that was changed in October 2007. After October 2007, OJP considered any response to an emergency call to be “nonroutine” and attributed the approval of some subsequent claims to the policy change.
We present OJP’s reasons for the 65 denials below.
Cases That Did Not Meet the Basic Criteria of the Act
As mentioned above, 10 of the 65 claims denied were cases in which the applications did not show that the claims met the basic criteria established in the PSOB Act or the Hometown Heroes Act. Five of these claims did not show evidence that the decedent was a public safety officer, four did not show evidence that the officer was on duty in the 24 hours prior to the heart attack or stroke, and one did not show evidence that the death met the requirements for “line of duty” activities.41
Cases Involving Officers Who Did Not Respond to a Call
Twenty-seven of the 65 denied claims involved officers who were on duty but did not respond to a call and did not engage in a qualifying activity as required by the PSOB Act.42 The officers’ activities in these 27 claims varied from administrative duties, such as filling out paperwork or attending meetings, to ancillary activities, such as routine maintenance on department vehicles, marching in a parade as a member of the department, installing smoke detectors for citizens, or manning the station house.
OJP denied other claims in this category because the officers’ activities did not involve great physical exertion, such as correctional officers who made rounds and assisted in food service but did not respond to an emergency, or because the officers conducted only regular patrols or routine traffic stops.
Cases Involving Officers Participating in Training
Another 9 of the 65 denied claims involved public safety officers who died after suffering a heart attack or stroke while participating in training activities that did not meet the definition established in the PSOB Program regulations. Some of these officers attended training sessions in a classroom that did not involve physical activity or engaged in physical fitness training (such as lifting weights or walking on a treadmill) that did not simulate significant threats or hazards and provoke or cause an unusually high level of alarm, fear, or anxiety, as required by the regulations. In other cases, OJP denied claims because officers prepared the training or observed participants in a training session but did not engage in the training activities.
Cases Involving Officers Who Responded to a Call: Potentially Narrow Interpretation of the Act
Nineteen of the 65 denied claims involved cases in which a public safety officer had responded to a call. According to the OJP claim determinations, the claims involved officers who suffered a heart attack or stroke: (1) before arriving at the scene, (2) after responding to a false alarm, (3) after responding to a call where they did not conduct any activities at the scene, (4) after responding to a call where they did not conduct any “law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief, or other emergency response” activities at the scene, or (5) after responding to a call where they conducted activities at the scene that were not considered stressful or strenuous.43
OJP evaluated the 19 claims using a narrow interpretation of the Hometown Heroes Act. OJP concluded that the claims did not have enough evidence to show that the officer’s response to the emergency call involved “nonroutine stressful or strenuous physical activity” or that the officers’ activities after responding to the call qualified as “ law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief or other emergency response activity.”44 Responses to emergency calls were not automatically defined as “nonroutine” and OJP evaluated the evidence in each claim to determine if the officers’ emergency response activities met the requirements of the Hometown Heroes Act and PSOB Program regulations.
However, after the first year of processing claims, OJP broadened how it applied the definition of “nonroutine activities.” In October 2007, the BJA issued a policy memorandum that stated that any response to an emergency call was to be considered “nonroutine.”45 The memorandum also stated that claims were to be reviewed based more on how stressful or strenuous an activity was and less on the frequency with which it was performed. Further, no activity was to be considered routine based solely on the public safety agency’s description of the activity as being “routine” or “ordinary.” The PSOB Director told us that the policy was instituted as a result of the experience gained after a year of processing claims. She said that OJP realized that responding to an emergency call should be automatically defined as “nonroutine.” These 19 denied claims were decided prior to issuance of the October 2007 memorandum.
After issuance of the policy memorandum, the Director of the PSOB Office told us that the revised policy had resulted in more approved claims. The Director further stated that she intended to call each claimant whose Hometown Heroes Act claim had been denied prior to issuance of the clarification and whose claim was not already in the appeals process, to inform the claimant of the new policy. OJP also waived the standard appeal deadline of 33 days after notice of denial to allow these claimants to appeal the denied claims if they chose.
Our examination of the determinations after the policy change confirmed that the number of approved claims increased after the change in the policy. Prior to October 2007, OJP denied 58 of 72 claims and approved 14. In comparison, during the first 2 months of FY 2008, OJP issued another 40 determinations, denying 7 claims and approving 33.46
Additionally, we reviewed Hearing Officers’ reports from the four appeals that were completed after the issuance of the October 2007 memorandum.47 These four appealed claims were among the 19 denied claims involving officers who responded to calls. Hearing Officers recommended approvals for all four claims, and the BJA Director concurred with the approvals.48
Table 3 on the next page summarizes OJP’s stated reasons for denying the 65 claims, and Appendix VII provides additional details on the officers’ activities as described in the claim determinations.
Table 3: OJP’s Reasons for Denying Completed Claims
|Reasons for Denial||Number of Claims|
|CASES THAT DID NOT MEET BASIC CRITERIA||10|
|Not a public safety officer||5|
|Not on duty the 24 hours prior to heart attack or stroke||4|
|Activities were not conducted in line of duty||1|
|CASES INVOLVING OFFICERS WHO DID NOT RESPOND TO A CALL||27|
|Conducted only administrative duties||6|
|Did not respond to a call and was not engaged in fire suppression, responding to a fire, rescue emergency or situation, police emergency or situation, or training||15|
|Did not respond to a call – conducted regular correctional duties||2|
|Did not respond to a call – conducted regular patrol or traffic stop||4|
|CASES INVOLVING TRAINING||9|
|Participated in routine, non-stressful, non-strenuous training activities||7|
|Prepared and tested a fire training maze, which was routine and not stressful or strenuous||1|
|Observed participants in a training session but did not engage in activity||1|
|CASES INVOLVING OFFICERS WHO RESPONDED TO A CALL||19|
|Responded, but had heart attack or stroke while getting ready to respond or before arriving at scene||4|
|Responded, but did not conduct any activities at the scene||3|
|Responded, but conducted supervisory duties or no physical activities.||2|
|Call responded to was not an emergency or the officer did not conduct any law enforcement or emergency activities||3|
|Call responded to was a false alarm, or the officer was told to turn around or did not proceed||5|
|Activities performed were routine and not stressful or strenuous||2|
We also reviewed OJP’s determinations for the 47 approved claims to identify activities that OJP determined to be the type of “nonroutine stressful or strenuous physical activity or training” covered by the Hometown Heroes Act. The following four synopses are presented as examples that illustrate the types of activities performed by public safety officers in the approved claims:
A firefighter participated in training that involved survival skills and the agency’s first “air consumption drill.” During the training, he wore full protective gear and a self-contained breathing apparatus. The firefighter brought an injured colleague out of the building, removed a firefighter from a hole in the floor, participated in search and ventilation simulations, climbed stairs, and carried fire hoses. He then completed four laps of the course until his low air pressure alarm sounded. Later the firefighter complained of not feeling well and was transported to a medical facility, where he was pronounced dead as a result of a heart attack.
A police officer and aid workers were dispatched to a residence of a diabetic male with a history of aggressive behavior toward medical responders and law enforcement officers in treatment situations. The officer arrived at the scene first and asked for backup assistance once he was in the bedroom. He then pushed the emergency distress button on his radio. A struggle between the officer and man could be heard over the radio. The officer stated that the subject had a gun, but that he had managed to get the individual in handcuffs. Additional law enforcement officers entered the room, observed signs of a struggle, and found the officer unconscious on the bed. After being transported to a hospital, the officer was pronounced dead as a result of a heart attack.
Less than 2 minutes after receiving a call, a firefighter responded in full “turn-out” gear to a house fire. He immediately helped breach the first floor walls to expose the fire and then extinguished the flames. The firefighter later collapsed and was transported to a hospital, where he was pronounced dead as a result of a heart attack.
An emergency medical technician (EMT) responded to two calls during his shift: a fire alarm in a commercial building and an auto accident with entrapped individuals. At the site of the accident, the EMT extracted a passenger from the vehicle and collapsed when helping load the passenger into the ambulance. The EMT was transported to a hospital, where he was pronounced dead as a result of a heart attack.
The PSOB Office’s database does not include a field for the date of a claim application’s receipt. However, we were able to estimate the date a claim was received by reading through the “notes” section of the database. To calculate the claims processing time, we used September 11, 2006 (the date PSOB Program regulations were enacted), as the start date for the 102 completed claims OJP received before that date. For the 10 completed claims that OJP received after that date, we used the estimated receipt dates from the “notes” section of the database.
We based part of our analysis on the PSOB Office’s database, which contains a “notes” section where staff members record activity on claims and appeals. Although the notes do not always record every action on a claim, we found that entries often included information about such as matters as calls from claimants, questions from OGC attorneys, and when the case file was moved in and out of the PSOB Office.
For example, the checklists stressed the importance of and provided instructions for completing the detailed statement regarding the 24-hour period prior to the public safety officer’s heart attack or stroke.
The PSOB Office database does not contain separate data fields to record dates that claims are sent to and received from the OGC. The dates used in our analysis were extracted from the “notes” section of the database. The “notes” section did not have dates for all the completed claims. The times estimated do not include periods when the case files were returned to the PSOB Office for additional documentation or information, but only the actual time the case file was in OGC for review.
In 2004, former Attorney General Ashcroft directed the PSOB Office to make a determination on all filed PSOB claims within 90 days of receiving all necessary information and identifying all potential beneficiaries. Our review of the PSOB database case notes indicated that the PSOB Office completed their portion of processing claims well within 90 days after receiving all the necessary documentation from claimants. (John Ashcroft, Attorney General, U.S. Department of Justice, memorandum to OJP and BJA, Public Safety Officers’ Benefits Program, May 13, 2004).
However, OJP provided the OIG with an update to the numbers of Hometown Heroes Act claims processed and pending in an e-mail in March 2008. As of March 26, 2008, OJP had received a total of 303 claims, of which 213 had been decided, 1 had been withdrawn by the claimant, and 89 were pending a determination. OJP had approved 122 claims and denied 91 claims, 8 of which were overturned on appeal to approvals. The backlog of claims OJP developed during the time the program regulations were developed was reduced from 201 to 27.
To be considered stressful, the physical activity must pose or appear to pose “significant threats or hazards” or involve “reasonably foreseeable risks of such threats or hazards” and provoke or cause “an unusually-high level of alarm, fear, or anxiety.” To be considered strenuous, the activity must “entail a high level of physical exertion.” See 42 U.S.C. § 3796 (2006).
The PSOB program defines line of duty activity as “activity or an action that [the public safety officer] is obligated or authorized by statute, rule, regulation, condition of employment or service, official mutual-aid agreement, or other law, to perform... under the auspices of the public agency he serves, and such agency (or the relevant government) legally recognizes that activity or action to be so obligated or authorized.... [The activity] is performed (as applicable) in the course of law enforcement, providing fire protection, engaging in rescue activity, providing emergency medical services, or training for one of the foregoing, and such agency (or the relevant government) legally recognizes it as such.” See 28 C.F.R. § 32.3 (2006).
Qualifying activities include law enforcement, fire suppression, rescue activity, hazardous material response, emergency medical services, disaster relief activity, or other emergency response. See 42 U.S.C. § 3796 (k)(1)(A) (2006).
OJP OGC considers this policy direction a “rebuttable presumption.” Domingo Herraiz, Director, Bureau of Justice Assistance, Public Safety Officers’ Benefits Program Policy Memorandum, re: “Nonroutine Stressful or Strenuous Physical Activity,” October 2, 2007.
Our review of the claims determinations indicated that the increase in approvals after October 2007 may not be solely attributable to the policy change. Only 8 of the 33 approved claims (and none of the 7 denied claims) involved officers responding to a call that had similar circumstances to the 19 denied claims mentioned above. These eight approved claims involved officers who suffered a heart attack or stroke before arriving at the scene, after responding to a false alarm, or after arriving on the scene and not conducting any activities. The remaining 25 approved claims had evidence showing that the public safety officer engaged in law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief, or other emergency response activities that were considered “nonroutine stressful or strenuous” and were not based on the broader application of the definition in the October 2007 memorandum.
During the appeal hearings, claimants had the opportunity to present additional or new evidence and call witnesses. For example, one claimant had 14 witnesses that testified to the fire response activities, the severe weather conditions that hampered the fire response, or the stressful and strenuous nature of the fire response.