The Department of Justice unveiled a new strategy to streamline the claim review process and address the backlog issue related to the Hometown Heroes Survivor Benefits Act at a recent hearing of the Senate Judiciary Committee.

The Hometown Heroes Act of 2003 states that the families of public safety officers who suffer a fatal heart attack or stroke while in the line of duty may qualify for survivor benefits under the Public Safety Officers’ Benefits Program.

Families of three fallen firefighters testified at the hearing, detailing the difficulties they faced in attempting to claim survivor benefits from DOJ, the Congressional Fire Service. The result: two denied claims, one pending claim and a combined five years of delay.

In a statement issued at the hearing, Domingo Herraiz, director of the Bureau of Justice Assistance which administers the PSOB program, said, “We have taken and will continue to take steps to decrease the time it takes for survivors to be given an answer on their claims.” Those steps include additional PSOB staff, a case management system that enables claimants to track the status of their case, outreach to public safety agencies and — most importantly — a plan to expedite the claims process.

As of Oct. 4, DOJ reported 202 pending cases, 21 approvals, 57 denials and 26 appeals. The department has been criticized for major delays in processing claims and for rulings that, Herraiz said are “too restrictive.”

Senator Patrick Leahy (D-Vt.), Chairman of the Senate Judiciary Committee, said that the DOJ is “delaying implementation of the law and disregarding the clear will of Congress to grant surviving families death benefits in a timely, fair manner.”

Herraiz recently addressed the semi-annual meeting of CFSI’s National Advisory Committee regarding the issue. “I am not pleased with our progress over the last year,” Herraiz said, who admits that the claim review process has taken longer than expected. “It’s time for me to accept responsibility. I can take charge of my organization and I will fix it.”

The department states that the initial backlog is the result of a complete revision of PSOB regulations following the implementation of the Hometown Heroes Act. The regulations were finalized in September 2006. DOJ maintains that most claims currently under review are waiting to receive additional evidence from the agency for which the public safety officer worked, causing additional delay.

Herraiz called the internal issues at the DOJ a long-standing problem — one that he plans to resolve. “You will see a big change. In three months, I guarantee a difference with the Hometown Heroes claims. We can do better and we will do better.”

In an attempt to enact these changes, DOJ released two policy memorandums relating to the processing of survivor benefit claims. The memos, signed by Herraiz, clarify the definitions of two terms contained in the Hometown Heroes Survivors Benefit Act of 2003.

The Hometown Heroes Act, which was unanimously passed by both houses of Congress and signed into law by President Bush in December 2003, stated:
if a public safety officer dies as the direct and proximate result of a heart attack or stroke, that officer shall be presumed to have died as the direct and proximate result of a personal injury sustained in the line of duty, if that officer, while on duty:

• engaged in a situation, and such engagement involved nonroutine stressful or strenuous physical law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief, or other emergency response activity; or
• participated in a training exercise, and such participation involved nonroutine stressful or strenuous physical activity…

That officer shall be presumed to have died as the direct and proximate result of a personal injury sustained in the line of duty if such presumption is not overcome by competent medical evidence to the contrary.

The manner in which DOJ was defining the term “nonroutine stressful or strenuous physical activity” has caused some concern among survivors and the public safety community at large. In several cases, DOJ has denied benefits to the survivors of public safety officers who have died in the line of duty from a heart attack or stroke based at least in part on the assumption that the emergency activities the officers were undertaking were routine for a public safety officer.

“It is safe to say that any firefighter or law enforcement officer will tell you no emergency situation is ever ‘routine,’” said Bill Webb, executive director of CFSI. “Our nation’s public safety officers put their lives on the line every day. A situation which they may encounter on a regular basis can quickly escalate into a catastrophic situation. While the men and women of our nation’s fire service are often prepared for almost any situation, the stress involved in their jobs is anything but routine and can take an enormous toll both physically and mentally.”

The new DOJ policy memorandum clarifies the meaning of the terms “nonroutine stressful or strenuous activity” and specifically states that “Responding to an emergency call shall presumptively be treated as non-routine.”

Many survivors have also expressed concern over how DOJ has implemented the phrase "competent medical evidence to the contrary” in past decisions. The Department has often asked for as much as 10 years of medical records and some survivors have reported infinite requests for more medical records from DOJ staff. The new policy memorandum clarifies that medical records shall only be requested if the information provided in the claim file suggests factors outside of the line of duty may be responsible for the heart attack or stroke. The memo further clarifies that “medical-history records requested of the claimant will be reviewed for mitigating evidence in favor of the claim.”

“While we believe this a positive development in resolving this issue, there is still more work to be done,” Webb said. “It is now up to DOJ to implement the new policy and to make it work. Too many families have been left out in the cold waiting for DOJ to do what Congress unanimously intended for them to do. It is imperative that fire service continue to monitor the situation to make sure the families of our public safety officers are treated fairly and their claims are processed efficiently and as Congress intended.”