Last December, President George W. Bush signed into law the Hometown Heroes Survivors Benefit Act of 2003, which extends the federal death benefits under the Public Safety Officers' Survivor Benefits Program (currently $267,494) to deaths by heart attack or stroke within 24 hours of on-duty activities involving “non-routine stressful or strenuous physical activity.” This legislation, which was supported by International Association of Fire Chiefs and the International Association of Fire Fighters, doesn't include deaths where the firefighter performed only administrative duties during the shift.

The law became effective on Dec. 15 for deaths on that day or thereafter. On Dec. 18, a 55-year-old fire specialist from Baltimore County Fire Department, Towson, Md., was found at home dead of a cardiac arrest the day after he worked a shift. Hopefully, his on-duty activities will qualify for death benefits under this new law.

Public Law 108-182, which passed the U.S. Senate as S. 459 and the House as H.R. 919, amends the Omnibus Crime Control And Safe Streets Act of 1968. The new law provides:

“(k) For purposes of this section, 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

(1) that officer, while on duty

(A) engaged in a situation, and such engagement involved non-routine 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

(B) participated in a training exercise, and such participation involved non-routine stressful or strenuous physical activity.

(2) that officer died as a result of heart attack or stroke suffered —

(A) while engaged or participating as described under paragraph (1);

(B) while still on that duty after so engaging or participating, or

(C) not later than 24 hours after so engaging or participating; and

(3) such presumption is not overcome by competent medical evidence to the contrary.

(l) For purposes of subsection (k), ‘non-routine stressful or strenuous physical’ excludes actions of a clerical, administrative, or non-manual nature.”

Fire and EMS departments should amend their line-of-duty death standard operating procedures to ensure that documentation is collected promptly concerning the on-duty activities of the fallen firefighter during the past 24 hours. Documentation should include copies of all run reports in which the firefighter participated during the shift, written statements from crew members and from members of mutual aid departments, dispatcher's audiotapes, incident command logs, and videotapes and photographs of emergency runs from local TV stations or citizens. For emotionally stressful runs where a critical incident stress management team was activated, ask the cism team leader to give a statement documenting their activities without, of course, disclosing privileged information.

Outside of the department, families of fallen firefighters should be encouraged to call the National Fallen Firefighters Foundation at 301-447-1365 for assistance in preparing the application for death benefits to the U.S. Department of Justice, Bureau of Justice Assistant. When reviewing applications for death benefits, the DOJ'S decision will be governed by the plain statutory language, and also the congressional “legislative history.”

This legislative history makes it clear that administrative duties are not covered. On Nov. 21, the House of Representatives passed the bill. Rep. F. James Sensenbrenner Jr. (Wis.), one of the bill's key sponsors, inserted into the legislative record his comments that witnesses appearing before the House Committee on the Judiciary, Subcommittee on Crime, Terrorism and Homeland Security, objected to the broad coverage in the original bill:

“Witnesses testified that the legislation as drafted would undermine the purpose of the Public Safety Officers' Benefits program, which was intended to provide a benefit to heroes who gave their lives in the line of duty for their communities. As drafted, it would cover officers who did not engage in any physical activity but merely happened to suffer a heart attack at work.”

Sensenbrenner's written comments make it clear what are not covered activities by fire and EMS and law enforcement, including “sitting at a desk; typing on a computer; talking on the telephone; reading or writing paperwork or other literature; watching a police or corrections facility's monitors of cells or grounds; teaching a class; cleaning or organizing an emergency response vehicle; signing in or out a prisoner; driving a vehicle on routine patrol; and directing traffic or participating in a local parade.”

However, Sensenbrenner's written comments indicated a broad range of activities are covered, including “performing a search and rescue mission; performing or assisting with emergency medical treatment; performing or assisting with fire suppression; involvement in a situation that requires either a high speed response or pursuit on foot or in a vehicle; participation in hazardous material response; responding to a riot that broke out at a public event; and physically engaging in the arrest or apprehension of a suspected criminal.”

What about emotionally stressful runs? How would this law apply to an EMS run for a child struck by a car, when EMS personnel on the scene have to advise the parents that their child has died? The plain language of the statute would appear to cover this, since the law reads “non-routine stressful or strenuous physical” emergency response activity.

As a member of the Southwest Ohio Critical Incident Stress Management Team, I'm called out to assist fire and EMS personnel on extremely difficult runs just like this. One can only hope that the U.S. Department of Justice would quickly grant the death benefits to the family of an emergency responder who died within 24 hours of such a horrendous run. Activation of the CISM team is a factor that the doj should consider in making its decision.

Cardiac arrests account for over 40% of firefighter deaths each year, and a substantial percentage of line-of-duty deaths. For example, in 2002, 34 of the 100 firefighters who died in the line of duty suffered heart attacks. Hopefully, this new law and the congressional reporting of death benefits under the law will draw increased attention to the need for cardiac wellness programs, as well as encourage departments to require all of their emergency responders to periodically take a cardiac stress test.

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A former part-time firefighter and EMT, Lawrence Bennett is a partner in Katzman, Logan, Halper & Bennett, a Cincinnati law firm. He has been an instructor at the National Fire Academy, regularly teaches at the Ohio Fire Academy and is an adjunct professor in fire and EMS law at Cincinnati State University.

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