[Title 28 CFR 32]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 32 - PUBLIC SAFETY OFFICERS' DEATH AND DISABILITY BENEFITS]
[From the U.S. Government Printing Office]
28JUDICIAL ADMINISTRATION12002-07-012002-07-01falsePUBLIC SAFETY OFFICERS' DEATH AND DISABILITY BENEFITS32PART 32JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 32--PUBLIC SAFETY OFFICERS' DEATH AND DISABILITY BENEFITS--Table of Contents
Subpart A--Death and Disability Benefits
Sec.
32.1 Purpose and OMB control number.
32.2 Definitions.
Officers Covered
32.3 Coverage.
32.4 Reasonable doubt of coverage.
32.5 Findings of State, local, and Federal agencies.
32.6 Conditions on payment.
32.7 Intentional misconduct of the officer.
32.8 Intention to bring about death or permanent and total disability.
32.9 Voluntary intoxication.
Beneficiaries
32.10 Order of priority.
32.11 Contributing factor to death.
32.12 Determination of relationship of spouse.
32.13 Determination of relationship of child.
32.14 Determination of relationship of parent.
32.15 Determination of dependency.
Interim and Reduced Death Payments
32.16 Interim payment in general.
32.17 Repayment and waiver of repayment.
32.18 Reduction of payment.
Filing and Processing of Claims
32.19 Persons executing claims.
32.20 Claims.
32.21 Evidence.
32.22 Representation.
Determination, Hearing, and Review
32.23 Finding of eligibility or ineligibility.
32.24 Request for a hearing.
National Programs for Families of Public Safety Officers Who Have Died
in the Line of Duty
32.25 National programs.
Subpart B--Public Safety Officers' Educational Assistance
32.31 Purpose.
32.32 Definitions.
32.33 Eligibility for assistance.
32.34 Application for assistance.
32.35 Retroactive benefits.
32.36 Action on applications for assistance.
32.37 Determination of benefits.
32.38 Denial of benefits.
32.39 Appeals.
32.40 Repayment.
Appendix to Part 32--PSOB Hearing and Appeal Procedures
Authority: Part L of title I of the Omnibus Crime Control and Safe
Streets Act of 1968, as amended (42 U.S.C. 3711 et seq.).
Source: 57 FR 24913, June 11, 1992, unless otherwise noted.
Subpart A--Death and Disability Benefits
Sec. 32.1 Purpose and OMB control number.
(a) The purpose of this subpart is to implement the Public Safety
Officers' Benefits Act of 1976, as amended, which authorizes the Bureau
of Justice Assistance, Office of Justice Programs, to pay a benefit of
$100,000, adjusted in accordance with Sec. 32.3(b), to specified
survivors or public safety officers found to have died as the direct and
proximate result of a personal injury sustained in the line of duty, and
to claimant public safety officers found to have been permanently and
totally disabled as the direct result of a catastrophic injury sustained
in the line of duty. The Act also authorizes funds to establish national
programs to assist the families of public safety officers who have died
in the line of duty. (The Act is subpart 1 of part L of title I of the
Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42
U.S.C. 3711 et seq.)
(b) The information collection requirements in this part have been
approved by the Office of Management and Budget and have been assigned
OMB control number 1121-0166.
[57 FR 24913, June 11, 1992, as amended at 62 FR 37715, July 15, 1997]
Sec. 32.2 Definitions.
For purposes of this subpart--
(a) The Act means the Public Safety Officers' Benefits Act of 1976,
42 U.S.C. 3796, et seq., Public Law 94-430, 90 Stat. 1346 (September 29,
1976), as amended.
(b)(1) Bureau or BJA means the Bureau of Justice Assistance of the
Office of Justice Programs;
(2) PSOB means the Public Safety Officers' Benefits Program of the
Bureau of Justice Assistance.
(c) Line of duty means:
(1) Any action which an officer whose primary function is crime
control or reduction, enforcement of the criminal law, or suppression of
fires is obligated
[[Page 467]]
or authorized by rule, regulations, condition of employment or service,
or law to perform, including those social, ceremonial, or athletic
functions to which the officer is assigned, or for which the officer is
compensated, by the public agency he serves. For other officers, ``line
of duty'' means any action the officer is so obligated or authorized to
perform in the course of controlling or reducing crime, enforcing the
criminal law, or suppressing fires; and
(2) Any action which an officially recognized or designated public
employee member of a rescue squad or ambulance crew is obligated or
authorized by rule, regulation, condition of employment or service, or
law to perform.
(d) Direct and proximate, direct, or proximate means that the
antecedent event is a substantial factor in the result.
(e) Personal injury or injury means any traumatic injury, as well as
diseases which are caused by or result from such an injury, but not
occupational diseases.
(f) Catastrophic injury means consequences of an injury that
permanently prevent an individual from performing any gainful work.
(g) Traumatic injury means a wound or a condition of the body caused
by external force, including injuries inflicted by bullets, explosives,
sharp instruments, blunt objects or other physical blows, chemicals,
electricity, climatic conditions, infectious diseases, radiation, and
bacteria, but excluding stress and strain.
(h) Permanent and total disability means medically determinable
consequences of a catastrophic, line-of-duty injury that permanently
prevent a former pubic safety officer from performing any gainful work.
(i) Occupational disease means a disease which routinely constitutes
a special hazard in, or is commonly regarded as a concomitant of the
officer's occupation.
(j) Public safety officer means any individual serving a public
agency in an official capacity, with or without compensation, as a law
enforcement officer, firefighter, rescue squad member or ambulance crew
member.
(k) Public agency means the United States, any State of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands of the United States, Guam, American Samoa, the Trust
Territories of the Pacific Islands, the Commonwealth of the Northern
Mariana Islands, and any territory or possession of the United States,
or any unit of local government, department, agency, or instrumentality
of any of the foregoing.
(l) Public employee means an employee of a public agency.
(m) Law enforcement officer means any individual involved in crime
and juvenile delinquency control or reduction, or enforcement of the
criminal law, including but not limited to police, corrections,
probation, parole, and judicial officers.
(n) Firefighter includes any individual serving as an officially-
recognized or designated member of a legally-organized volunteer fire
department.
(o) Rescue squad or ambulance crew member means an officially
recognized or designated employee or member of a rescue squad or
ambulance crew.
(p) Prerequisite disability certification means:
(1)(i) The employing agency's official, certified award to the
claimant public safety officer of its maximum disability finding and
compensation, including the officer's permanent and complete separation
from the employing public safety agency as the direct result of an
injury sustained in the line of duty; or
(ii) If the employing agency does not itself make such disability
awards, then an official, certified award to the claimant public safety
officer by the cognizant judicial, political or administrative agency or
body of its maximum disability finding and compensation, including the
officer's permanent and complete separation from the employing public
safety agency as the direct result of an injury sustained in the line of
duty.
(2) Nothing in this paragraph (p) shall be construed to affect
State, municipal, or local laws, regulations, policies, or agencies,
which have been or will be established for the purpose of granting
public safety officer disability
[[Page 468]]
pensions, including heart and lung laws and similar benefits, nor is any
standard for the granting of such benefits implied in any way by this
part.
(q) 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. Work may be substantial
even if it is done on a part-time basis or if the public safety officer
does less, gets paid less, or has less responsibility than when he or
she was a member of the former employing public safety agency.
(2) Gainful work activity means work activity that is done for pay
or profit. Work activity is gainful if it is the kind of work usually
done for pay or profit, whether or not a profit is realized or pay is
received.
(r) Residual functional capacity means that which a former public
safety officer can still do despite limitations imposed by a disability.
Residual functional capacity is a medical assessment, a determination to
be made by the Office's medical experts. Such medical determination will
be based on examination of prerequisite disability certifications as
specified in 28 CFR 32.2(p), and by examination of any additional case
specific medical and other relevant documentation necessary to a medical
assessment and determination of residual functional capacity.
(s) Age means a former public safety officer's chronological age,
and the extent to which that individual's age affects his or her ability
to adapt to a new work situation or to do work in competition with
others. PSOB will evaluate age in the context of residual functional
capacity within the following general parameters:
(1) Youthful means that a former public safety officer under age 50
will generally be considered able to adapt to a new work activity and
environment.
(2) Early middle age means that a former public safety officer,
between age 50 and age 59, will generally be considered to experience
significant difficulty in adapting to a new work activity and
environment.
(3) Middle and advanced age means that a former public safety
officer age 60 or over will generally be considered to experience
substantial difficulty in adapting to a new work activity or
environment.
(t) Education means primarily the level and content of a former
public safety officer's formal schooling, including vocational training.
Education also includes completion of in-service training seminars and
educational programs while a member of the former employing public
safety agency or while formerly employed.
(u) Work experience means the skills and abilities acquired by the
former public safety officer before, during and following service in the
former public safety agency, suitable to use in adapting to a new work
activity and environment.
(v) Child means any natural, illegitimate, adopted, or posthumous
child or stepchild of a deceased public safety officer who, at the time
of the public safety officer's death, is:
(1) Eighteen years of age or under;
(2) Over eighteen years of age and a student, as defined in section
8101 of title 5, United States Code; or
(3) Over eighteen years of age and incapable of self-support because
of physical or mental disability.
(w) Stepchild means a child of the officer's spouse who was living
with, dependent for support on, or otherwise in a parent-child
relationship, as set forth in Sec. 32.13(b), with the officer at the
time of the officer's death. The relationship of stepchild is not
terminated by the divorce, remarriage, or death of the stepchild's
natural or adoptive parent.
(x) Student means:
(1) An individual under 23 years of age who has not completed four
years of education beyond the high school level and who is regularly
pursuing a full-time course of study or training at an institution which
is:
(i) A school or college or university operated or directly supported
by the United States, or by a State or local government or political
subdivision thereof;
(ii) A school or college or university which has been accredited by
a State or by a State recognized or nationally recognized accrediting
agency or body;
(iii) A school or college or university not so accredited but whose
credits are accepted, on transfer, by at least three institutions which
are so accredited for
[[Page 469]]
credit on the same basis as if transferred from an institution so
accredited; or
(iv) An additional type of educational or training institution as
defined by the Secretary of Labor.
(2) An individual is deemed to be a student during an interim
between school years if the interim is not more than 4 months and if the
student shows to the satisfaction of the Bureau, that the student
intends to pursue a full-time course of study or training during the
semester or other enrollment period immediately after the interim or
during periods of reasonable duration during which, in the judgment of
the Bureau, the student is prevented by factors beyond the student's
control from pursuing the student's education. A student whose 23rd
birthday occurs during a semester or other enrollment period is deemed a
student until the end of the semester or other enrollment period.
(y) Spouse means the husband or wife of the deceased officer at the
time of the officer's death, and includes a spouse living apart from the
officer at the time of the officer's death for any reason.
(z) Dependent means any individual who was substantially reliant for
support upon the income of the deceased public safety officer.
(aa) Intoxication means a disturbance of mental or physical
faculties:
(1) Resulting from the introduction of alcohol into the body as
evidenced by--
(i) A blood alcohol level of .20 per centum or greater; or
(ii) A blood alcohol level of at least .10 per centum unless the
Bureau receives convincing evidence that the public safety officer was
not acting in an intoxicated manner immediately prior to the officer's
death or catastrophic personal injury which resulted in permanent and
total disability; or
(2) Resulting from drugs or other substances in the body.
(bb) Rescue means the provision of first response emergency medical
treatment, transportation of persons in medical distress and under
emergency conditions to medical care facilities, or search and rescue
assistance in locating and extracting from danger persons lost, missing,
or in imminent danger of bodily harm.
(cc) Support means food, shelter, clothing, ordinary medical
expenses, and other ordinary and customary items for maintenance of the
person supported.
[57 FR 24913, June 11, 1992, as amended at 61 FR 33657, June 28, 1996;
62 FR 37715, July 15, 1997]
Officers Covered
Sec. 32.3 Coverage.
(a) When the Bureau determines under this part, that a public safety
officer, as defined in Sec. 32.2(h) has died or become permanently and
totally disabled as the direct and proximate result of an injury
sustained in the line of duty, the Bureau shall pay a benefit of
$100,000, adjusted in accordance with Sec. 32.3 (b) or (c), subject to
the conditions set forth in Sec. 32.6. Payment of death benefits shall
be made in the order specified in Sec. 32.10.
(b) For the death benefit program, on October 1 of each fiscal year
after October 15, 1988, the Bureau shall adjust the level of the death
benefit payable immediately before such October 1 under paragraph (a) of
this section, to reflect the annual percentage change in the Consumer
Price Index for All Urban Consumers, published by the Bureau of Labor
Statistics, occurring in the 1-year period ending on June 1 immediately
preceding such October 1.
(c) For the disability benefit program, the annual cost of living
adjustment shall be made in accordance with the effective date of the
enactment of this program, viz. November 29, 1990.
(d) The amount payable under paragraph (a) of this section with
respect to the death or permanent and total disability of a public
safety officer shall be the amount payable under paragraphs (b) or (c)
of this section as of the date of death or permanent and total
disability of such officer, as the case may be.
Sec. 32.4 Reasonable doubt of coverage.
The Bureau shall resolve any reasonable doubt arising from the
circumstances of the officer's death or permanent and total disability
in favor
[[Page 470]]
of payment of the death or disability benefit.
Sec. 32.5 Findings of State, local, and Federal agencies.
The Bureau will give substantial weight to the evidence and findings
of fact presented by State, local, and Federal administrative and
investigative agencies. The Bureau will request additional assistance or
conduct its own investigation when it believes that the existing
evidence does not provide the Bureau with a rational basis for a
decision on a material element of eligibility.
Sec. 32.6 Conditions on payment.
(a) No benefit shall be paid--
(1) If the death or permanent and total disability was caused by the
intentional misconduct of the public safety officer or by such officer's
intention to bring about the officer's death or injury;
(2) If the public safety officer was voluntarily intoxicated at the
time of the officer's death or catastrophic personal injury;
(3) If the public safety officer was performing the officer's duties
in a grossly negligent manner at the time of the officer's death or
catastrophic personal injury;
(4) To any individual who would otherwise be entitled to a benefit
under this part if such individual's actions were a substantial
contributing factor to the death of the public safety officer; or
(5) To any individual employed in a capacity other than a civilian
capacity.
(b) The Act applies to State and local public safety officers killed
in the line of duty on or after September 29, 1976; federal public
safety officers killed on or after October 12, 1984; rescue squad or
public emergency employees killed in the line of duty on or after
October 15, 1986; and to each of these classes of officers permanently
and totally disabled as a result of a catastrophic personal injury
received in the line of duty on or after November 29, 1990.
Sec. 32.7 Intentional misconduct of the officer.
The Bureau will consider at least the following factors in
determining whether death or permanent and total disability was caused
by the intentional misconduct of the officer:
(a) Whether the conduct was in violation of rules and regulations of
the employer, or ordinances and laws, and--
(1) Whether the officer knew the conduct was prohibited and
understood its import;
(2) Whether there was a reasonable excuse for the violation; or
(3) Whether the rule violated is habitually observed and enforced;
(b) Whether the officer had previously engaged in similar
misconduct;
(c) Whether the officer's intentional misconduct was a substantial
factor in the officer's death or permanent and total disability; and
(d) Whether there was an intervening force which would have
independently caused the officer's death or permanent and total
disability and which would not otherwise prohibit payment of a benefit
pursuant to this part.
Sec. 32.8 Intention to bring about death or permanent and total disability.
The Bureau will consider at least the following factors in
determining whether the officer intended to bring about the officer's
own death or injury:
(a) Whether the death or permanent and total disability was caused
by insanity, through an uncontrollable impulse or without conscious
volition to produce death or injury;
(b) Whether the officer had a prior history of attempted suicide or
attempts to cause physical incapacitation;
(c) Whether the officer's intent to bring about the officer's death
or injury was a substantial factor in the officer's death or permanent
and total disability; and
(d) The existence of an intervening force or action which would have
independently caused the officer's death or permanent and total
disability and which would not otherwise prohibit payment of a benefit
pursuant to this part.
Sec. 32.9 Voluntary intoxication.
The Bureau will apply the following evidentiary factors in cases in
which voluntary intoxication is at issue in an
[[Page 471]]
officer's death or permanent and total disability.
(a) The primary factor in determining intoxication at the time the
injury occurred, from which death or permanent and total disability
resulted, is the blood alcohol level, including a post-mortem blood
alcohol level in the case of a death.
(1) Benefits will be denied if a deceased or permanently and totally
disabled public safety officer had a blood alcohol level of .20 per
centum or greater; or
(2) Benefits will be denied if a deceased or permanently and totally
disabled public safety officer had a blood alcohol level of at least .10
per centum but less than .20 per centum unless the Bureau receives
convincing evidence that the public safety officer was not acting in an
intoxicated manner immediately prior to death or the receipt of a
catastrophic personal injury.
(b) Convincing evidence includes, but is not limited to: Affidavits
or investigative reports demonstrating that the deceased or permanently
and totally disabled public safety officer's speech, movement, language,
emotion, and judgment were normal (for the officer) immediately prior to
the injury which caused the death or the permanent and total disability.
(c) In determining whether an officer's intoxication was voluntary,
the Bureau will consider:
(1) Whether, and to what extent, the officer had a prior history of
voluntary intoxication while in the line of duty;
(2) Whether and to what degree the officer had previously used the
intoxicant in question; and
(3) Whether the intoxicant was prescribed medically and was taken
within the prescribed dosage.
Beneficiaries
Sec. 32.10 Order of priority.
(a) When the Bureau had determined that a death benefit may be paid
according to the provisions of this subpart, a benefit of $100,000,
adjusted in accordance with Sec. 32.3(b), shall be paid in the following
order of precedence:
(1) If there is no surviving child of such officer, to the surviving
spouse of such officer;
(2) If there are a surviving child or children and a surviving
spouse, one-half to the surviving child or children of such officer in
equal shares, and one-half to the surviving spouse;
(3) If there is no surviving spouse, to the surviving child or
children of such officer in equal shares; or
(4) If none of the above in paragraphs (a)(1) through (3) of this
section to the surviving parent, or to the surviving parents in equal
shares.
(b) If no one qualifies as provided in paragraph (a) of this
section, no benefit shall be paid.
[57 FR 24913, June 11, 1992, as amended at 62 FR 37715, July 15, 1997]
Sec. 32.11 Contributing factor to death.
(a) No death benefit shall be paid to any person who would otherwise
be entitled to a death benefit under this part if such person's
intentional actions were a substantial contributing factor to the death
of the public safety officer.
(b) When a potential beneficiary is denied death benefits under
paragraph (a) of this section, the benefits shall be paid to the
remaining eligible survivors, if any, of the officer as if the potential
beneficiary denied death benefits did not survive the officer.
Sec. 32.12 Determination of relationship of spouse.
(a) Marriage should be established by one (or more) of the following
types of evidence in the following order of preference:
(1) Copy of the public record of marriage, certified or attested, or
by an abstract of the public record, containing sufficient data to
identify the parties, the date and place of the marriage, and the number
of prior marriages by either party if shown on the official record,
issued by the officer having custody of the record or other public
official authorized to certify the record, or a certified copy of the
religious record of marriage;
(2) Official report from a public agency as to a marriage which
occurred while the officer was employed with such agency;
(3) The affidavit of the clergyman or magistrate who officiated;
[[Page 472]]
(4) The original certificate of marriage accompanied by proof of its
genuineness and the authority of the person to perform the marriage;
(5) The affidavits or sworn statements of two or more eyewitnesses
to the ceremony;
(6) In jurisdictions where ``common law'' marriages are recognized,
the affidavits or certified statements of the spouse setting forth all
of the facts and circumstances concerning the alleged marriage, such as
the agreement between the parties at the beginning of their
cohabitation, the period of cohabitation, places and dates of
residences, and whether children were born as the result of the
relationship. This evidence should be supplemented by affidavits or
certified statements from two or more persons who know as the result of
personal observation the reputed relationship which existed between the
parties to the alleged marriage including the period of cohabitation,
places of residences, whether the parties held themselves out as husband
and wife and whether they were generally accepted as such in the
communities in which they lived; or
(7) Any other evidence which would reasonably support a belief by
the Bureau that a valid marriage actually existed.
(b) BJA will not recognize a claimant as a ``common law'' spouse
under Sec. 32.12(a)(6) unless the State of domicile recognizes him or
her as the spouse of the officer.
(c) If applicable, certified copies of divorce decrees of previous
marriages or death certificates of the former spouses of either party
must be submitted.
Sec. 32.13 Determination of relationship of child.
(a) In general. A claimant is the child of a public safety officer
if the individual's birth certificate shows the officer as the
individual's parent.
(b) Alternative. If the birth certificate does not show the public
safety officer as the claimant's parent, the sufficiency of the evidence
will be determined in accordance with the facts of a particular case.
Proof of the relationship may consist of--
(1) An acknowledgement in writing signed by the public safety
officer; or
(2) Evidence that the officer has been identified as the child's
parent by a judicial decree ordering the officer to contribute to the
child's support or for other purposes; or
(3) Any other evidence which reasonably supports a finding of a
parent-child relationship, such as--
(i) A certified copy of the public record of birth or a religious
record showing that the officer was the informant and was named as the
parent of the child; or
(ii) Affidavits or sworn statements of persons who know that the
officer accepted the child as his or her own; or
(iii) Information obtained from a public agency or public records,
such as school or welfare agencies, which shows that with the officer's
knowledge the officer was named as the parent of the child.
(c) Adopted child. Except as may be provided in paragraph (b) of
this section, evidence of relationship must be shown by a certified copy
of the decree of adoption and such evidence as may be necessary. In
jurisdictions where petition must be made to the court for release of
adoption documents or information, or where the release of such
documents or information is prohibited, a revised birth certificate will
be sufficient to establish the fact of adoption.
(d) Stepchild. The relationship of a stepchild to the deceased
officer shall be demonstrated by--
(1)(i) Evidence of birth to the spouse of the officer as required by
paragraphs (a) and (b) of this section; or
(ii) If adopted by the spouse, evidence of adoption as required by
paragraph (c) of this section; or
(iii) Other evidence, such as that specified in Sec. 32.13(b), which
reasonably supports the existence of a parent-child relationship between
the child and the spouse;
(2) Evidence that the stepchild was either--
(i) Living with; or
(ii) Dependent for support, as set forth in Sec. 32.15; or
(iii) In a parent-child relationship, as set forth in Sec. 32.13(b),
with the officer at the time of the officer's death; and
[[Page 473]]
(3) Evidence of the marriage of the officer and the spouse, as
required by Sec. 32.12.
Sec. 32.14 Determination of relationship of parent.
(a) In general. A claimant is the parent of a public safety officer
if the officer's birth certificate shows the claimant as the officer's
parent.
(b) Alternative. If the birth certificate does not show the claimant
as the officer's parent, proof of the relationship may be shown by--
(1) An acknowledgement in writing signed by the claimant before the
officer's death; or
(2) Evidence that the claimant has been identified as the officer's
parent by judicial decree ordering the claimant to contribute to the
officer's support or for other purposes; or
(3) Any other evidence which reasonably supports a finding of a
parent-child relationship, such as:
(i) A certified copy of the public record of birth or a religious
record showing that the claimant was the informant and was named as the
parent of the officer; or
(ii) Affidavits or sworn statements of persons who know the claimant
had accepted the officer as the claimant's child; or
(iii) Information obtained from a public agency or public records,
such as school or welfare agencies, which shows that with the officer's
knowledge the claimant had been named as the parent of the child.
(c) Adoptive parent. Except as provided in paragraph (b) of this
section, evidence of relationship must be shown by a certified copy of
the decree of adoption and such other evidence as may be necessary. In
jurisdictions where petition must be made to the court for release of
adoption documents or information, or where release of such documents or
information is prohibited, a revised birth certificate showing the
claimant as the officer's parent will suffice.
(d) Step-parent. The relationship of a step-parent to the deceased
officer shall be demonstrated by--
(1)(i) Evidence of the officer's birth to the spouse of the step-
parent as required by Sec. 32.13 (a) and (b); or
(ii) If adopted by the spouse or the step-parent, proof of adoption
as required by Sec. 32.13(c); or
(iii) Other evidence, such as that specified in paragraph (b) of
this section, which reasonably supports a parent-child relationship
between the spouse and the officer; and
(2) Evidence of the marriage of the spouse and the step-parent, as
required by Sec. 32.12.
Sec. 32.15 Determination of dependency.
(a) To be eligible for a death benefit under the Act, a stepchild
not living with the deceased officer at the time of the officer's death
shall demonstrate that he or she was substantially reliant for support
upon the income of the officer.
(b) The claimant stepchild shall demonstrate that he or she was
dependent upon the decedent at either the time of the officer's death or
of the personal injury that was the substantial factor in the officer's
death.
(c) The claimant stepchild shall demonstrate dependency by
submitting a signed statement of dependency within a year of the
officer's death. This statement shall include the following information-
-
(1) A list of all sources of income or support for the twelve months
preceding the officer's injury or death;
(2) The amount of income or value of support derived from each
source listed; and
(3) The nature of support provided by the each source.
(d) Generally, the Bureau will consider a stepchild ``dependent'' if
he or she was reliant on the income of the deceased officer for over
one-third of his or her support.
Interim and Reduced Death Payments
Sec. 32.16 Interim payment in general.
(a) Whenever the Bureau determines upon a showing of need and prior
to final action that the death of a public safety officer is one with
respect to which a benefit will probably be paid, the Bureau may make an
interim benefit payment not exceeding $3,000 to the individual entitled
to receive a
[[Page 474]]
benefit under Secs. 32.10 through 32.15 of this part.
(b) The amount of an interim payment under this subpart shall be
deducted from the amount of any final benefit paid to such individual.
[57 FR 24913, June 11, 1992, as amended at 62 FR 37715, July 15, 1997]
Sec. 32.17 Repayment and waiver of repayment.
Where there is no final benefit paid, the recipient of any interim
benefit paid under Sec. 32.16 shall be liable for repayment of such
amount. The Bureau may waive all or part of such repayment considering
for this purpose the hardship which would result from such repayment.
Sec. 32.18 Reduction of payment.
(a) The benefit payable under this part shall be in addition to any
other benefit that may be due from any other source, except--
(1) Payments authorized by section 12(k) of the Act of September 1,
1916, as amended (D.C. Code, Sec. 4-622);
(2) Benefits authorized by section 8191 of title 5, United States
Code, providing compensation for law enforcement officers not employed
by the United States killed in connection with the commission of a crime
against the United States. Such beneficiaries shall only receive
benefits under such section 8191 that are in excess of the benefits
received under this part; and
(3) The amount of the interim benefit payment made to the claimant
pursuant to Sec. 32.16.
(b) No benefit paid under this part shall be subject to execution or
attachment.
(c) No benefit is payable under this part:
(1) With respect to the death of a public safety officer if a
benefit is paid under this part with respect to the disability of such
public safety officer; or
(2) With respect to the disability of a public safety officer if a
benefit is payable under this part with respect to the death of such
public safety officer.
Filing and Processing of Claims
Sec. 32.19 Persons executing claims.
(a) The Bureau shall determine who is the proper party to execute a
claim in accordance with paragraphs (a) (1) through (3) of this section-
-
(1) The claim shall be executed by the claimant or the claimant's
legally designated representative if the claimant is mentally competent
and physically able to execute the claim.
(2) If the claimant is mentally incompetent or physically unable to
execute the claim and--
(i) Has a legally appointed guardian, committee, or other
representative, the claim may be executed by such guardian, committee,
or other representative; or
(ii) Is in the care of an institution, the claim may be executed by
the manager or principal officer of such institution.
(3) For good cause shown, such as the age or prolonged absence of
the claimant, the Bureau may accept a claim executed by a person other
than one described in paragraphs (a)(1) and (a)(2) of this section.
(b) Where the claim is executed by a person other than the claimant,
such person shall, at the time of filing the claim or within a
reasonable time thereafter, file evidence of such person's authority to
execute the claim on behalf of such claimant in accordance with
paragraph (b) (1) and (2) of this section--
(1) If the person executing the claim is the legally-appointed
guardian, committee, or other legally-designated representative of such
claimant, the evidence shall be a certificate executed by the proper
official of the court of appointment.
(2) If the person executing the claim is not such a legally
designated representative, the evidence shall be a statement describing
such person's relationship to the claimant or the extent to which such
person has the care of such claimant or such person's position as an
officer of the institution of which the claimant is an inmate or
patient. The Bureau may, at any time, require additional evidence to
establish
[[Page 475]]
the authority of any such person to file or withdraw a claim.
Sec. 32.20 Claims.
(a) Claimants are encouraged to submit their claims on OJP Form
3650/5 for death benefits, or the disability benefits claim form, which
can be obtained from: Public Safety Officers' Benefits Program, Bureau
of Justice Assistance, Washington, DC 20531.
(b) Where an individual files OJP Form 3650/5 for death benefits, or
the disability benefits claim form, or other written statement with the
Bureau which indicates an intention to claim benefits, the filing of
such written statement shall be considered to be the filing of a claim
for benefits.
(c) A claim by a permanently and totally disabled public safety
officer or on behalf of survivor of a deceased public safety officer
shall be filed within 1 year after the date of death or prerequisite
disability certification unless the time for filing is extended by the
Director for good cause shown.
(d) Except as otherwise provided in this part, the withdrawal of a
claim, the cancellation of a request for such withdrawal, or any notice
provided for pursuant to the regulations in this part, shall be in
writing and shall be signed by the claimant or the person legally
designated to execute a claim under Sec. 32.19.
Sec. 32.21 Evidence.
(a) A claimant for any benefit or fee under the Act and this part
shall submit such evidence of eligibility or other material facts as is
specified by this part. The Bureau may require at any time additional
evidence to be submitted with regard to entitlement, the right to
receive payment, the amount to be paid, or any other material issue.
(b) Whenever a claimant for any benefit or fee under the Act and
this part has submitted no evidence or insufficient evidence of any
material issue or fact, the Bureau shall inform the claimant what
evidence is necessary for a determination as to such issue or fact and
shall request the claimant to submit such evidence within a reasonably
specified time. The claimant's failure to submit evidence on a material
issue or fact as requested by the Bureau shall be a basis for
determining that the claimant fails to satisfy the conditions required
to award a benefit or fee or any part thereof.
(c) In cases where a copy of a record, document, or other evidence,
or an excerpt of information therefrom, is acceptable as evidence in
lieu of the original, such copy or excerpt shall, except as may
otherwise clearly be indicated thereon, be certified as a true and exact
copy or excerpt by the official custodian of such record, or other
public official authorized to certify the copy.
Sec. 32.22 Representation.
(a) A claimant may be represented in any proceeding before the
Bureau by an attorney or other person authorized to act on behalf of the
claimant pursuant to Sec. 32.19.
(b) No contract for a stipulated fee or for a fee on a contingent
basis will be recognized. Any agreement between a representative and a
claimant in violation of this subsection is void.
(c) Any individual who desires to charge or receive a fee for
services rendered for an individual in any application or proceeding
before the Bureau must file a written petition therefore in accordance
with paragraph (e) of this section. The amount of the fee the petitioner
may charge or receive, if any, shall be determined by the Bureau on the
basis of the factors described in paragraphs (e) and (g) of this
section.
(d) Written notice of a fee determination made under this section
shall be mailed to the representative and the claimant at their last
known addresses. Such notice shall inform the parties of the amount of
the fee authorized, the basis of the determination, and the fact that
the Bureau assumes no responsibility for payment.
(e) To obtain approval of a fee for services performed before the
Bureau, a representative, upon completion of the proceedings in which
the representative rendered services, must file with the Bureau a
written petition containing the following information--
(1) The dates the representative's services began and ended;
(2) An itemization of services rendered with the amount of time
spent in hours, or parts thereof;
[[Page 476]]
(3) The amount of the fee the representative desires to charge for
services performed;
(4) The amount of fee requested or charged for services rendered on
behalf of the claimant in connection with other claims or causes of
action arising from the officer's death or permanent and total
disability before any State or Federal court or agency;
(5) The amount and itemization of expenses incurred for which
reimbursement has been made or is expected;
(6) The special qualifications which enabled the representative to
render valuable services to the claimant (this requirement does not
apply where the representative is an attorney); and
(7) A statement showing that a copy of the petition was sent to the
claimant and that the claimant was advised of the claimant's opportunity
to submit his or her comments on the petition to BJA within 20 days.
(f) No fee determination will be made by the Bureau until 20 days
after the date the petition was sent to the claimant. The Bureau
encourages the claimant to submit comments on the petition to the Bureau
during the 20-day period.
(g) In evaluating a request for approval of a fee, the purpose of
the public safety officers' benefits program--to provide a measure of
economic security for the beneficiaries thereof--will be considered,
together with the following factors:
(1) The services performed (including type of service);
(2) The complexity of the case;
(3) The level of skill and competence required to render the
services;
(4) The amount of time spent on the case;
(5) The results achieved;
(6) The level of administrative review to which the claim was
carried within the Bureau and the level of such review at which the
representative entered the proceedings;
(7) The amount of the fee requested for services rendered, excluding
the amount of any expenses incurred, but including any amount previously
authorized or requested;
(8) The customary fee for this kind of service; and
(9) Other awards in similar cases.
(h) In determining the fee, the Bureau shall consider and add
thereto the amount of reasonable and unreimbursed expenses incurred in
establishing the claimant's case. No amount of reimbursement shall be
permitted for expenses incurred in obtaining medical or documentary
evidence in support of the claim which had previously been obtained by
the Bureau, and no reimbursement shall be allowed for expenses incurred
in establishing or pursuing the representative's application for
approval of the fee.
Determination, Hearing, and Review
Sec. 32.23 Finding of eligibility or ineligibility.
Upon making a finding of eligibility, the Bureau shall notify each
claimant of its disposition of his or her claim. In those cases where
the Bureau has found the claimant to be ineligible for a benefit, the
Bureau shall specify the reasons for the finding. The finding shall set
forth the findings of fact and conclusions of law supporting the
decision. A copy of the decision, together with information as to the
right to a hearing and review shall be mailed to the claimant at his or
her last known address.
Sec. 32.24 Request for a hearing.
(a) A claimant may, within thirty (30) days after notification of
ineligibility by the Bureau, request the Bureau to reconsider its
finding of ineligibility. The Bureau shall provide the claimant the
opportunity for an oral hearing which shall be held within 60 days after
the request for reconsideration. The claimant may waive the oral hearing
and present written evidence to the Bureau within 60 days after the
request. The request for hearing shall be made to the Director, Public
Safety Officers' Benefits Program, BJA, Washington, DC 20531.
(b) If requested, the oral hearing shall be conducted before a
hearing officer authorized by the Bureau to conduct the hearing in any
location agreeable to the claimant and the hearing officer.
(c) In conducting the hearing, the hearing officer shall not be
bound by
[[Page 477]]
common law or statutory rules of evidence, by technical or formal rules
of procedure, or by chapter 5 of the Administrative Procedure Act (5
U.S.C. 551 et seq.), but must conduct the hearing in such manner as to
best ascertain the rights of the claimant. For this purpose, the hearing
officer shall receive such relevant evidence as may be introduced by the
claimant and shall, in addition, receive such other evidence as the
hearing officer may determine to be necessary or useful in evaluating
the claim. Evidence may be presented orally or in the form of written
statements and exhibits. The hearing shall be recorded, and the original
of the complete transcript shall be made a part of the claims record.
(d) Pursuant to sections 805, 806 and 1205(a) of the Omnibus Crime
Control and Safe Streets Act of 1968, as amended, 42 U.S.C. 3786, 3787
and 3796c, the hearing officer may, whenever necessary:
(1) Issue subpoenas;
(2) Administer oaths;
(3) Examine witnesses; and
(4) Receive evidence at any place in the United States.
(e) If the hearing officer believes that there is relevant and
material evidence available which has not been presented at the hearing,
the hearing officer may adjourn the hearing and, at any time prior to
mailing the decision, reopen the hearing for the receipt of such
evidence.
(f) A claimant may withdraw his or her request for a hearing at any
time prior to the mailing of the decision by written notice to the
hearing officer so stating, or by orally so stating at the hearing. A
claimant shall be deemed to have abandoned his or her request for a
hearing if he or she fails to appear at the time and place set for the
hearing, and does not, within 10 days after the time set for the
hearing, show good cause for such failure to appear.
(g) The hearing officer shall, within 30 days after receipt of the
last piece of evidence relevant to the proceeding, make a determination
of eligibility. The determination shall set forth the findings of fact
and conclusions of law supporting the determination. The hearing
officer's determination shall be the final agency decision, except when
it is reviewed by the Director under paragraphs (h) or (i) of this
section.
(h)(1) The Director may, on his or her own motion, review a
determination made by a hearing officer. If the BJA Director decides to
review the determination, he or she shall:
(i) Inform the claimant of the hearing officer's determination and
the BJA Director's decision to review that determination; and
(ii) Give the claimant 30 days to comment on the record and offer
new evidence or argument on the issues in controversy.
(2) The BJA Director, in accordance with the facts found on review,
may affirm or reverse the hearing officer's determination. The BJA
Director's determination shall set forth the findings of fact and
conclusions of law supporting the determination. The BJA Director's
determination shall be the final agency decision.
(i)(1) A claimant determined ineligible by a hearing officer under
paragraph (g) of this section may, within 30 days after notification of
the hearing officer's determination:
(i) Request the BJA Director to review the record and the hearing
officer's determination; and
(ii) Comment on the record and offer new evidence or argument on the
issues in controversy.
(2) The BJA Director shall make the final agency determination of
eligibility within 30 days after expiration of the comment period. The
notice of final determination shall set forth the findings of fact and
conclusions of law supporting the determination. The BJA Director's
determination shall be the final agency decision.
(j) No payment of any portion of a death or permanent and total
disability benefit, except interim death benefits payable under
Sec. 32.16, shall be made until all hearings and reviews which may
affect that payment have been completed.
National Programs for Families of Public Safety Officers Who Have Died
in the Line of Duty
Sec. 32.25 National programs.
The Director is authorized and directed to use up to $150,000 of the
funds
[[Page 478]]
appropriated for this part to establish national programs to assist the
families of public safety officers who have died in the line of duty.
Subpart B--Public Safety Officers' Educational Assistance
Source: 62 FR 37716, July 15, 1997, unless otherwise noted.
Sec. 32.31 Purpose.
This subpart implements the Federal Law Enforcement Dependents
Assistance Act of 1996, as amended by the Police, Fire, and Emergency
Assistance Act of 1998, which authorizes the payment of financial
assistance for the purpose of higher education to the dependents of
public safety officers who are found, under the provisions of subpart A
of this part, to have died as a direct and proximate result of a
personal injury sustained in the line of duty, or to have been
permanently and totally disabled as the direct result of a catastrophic
injury sustained in the line of duty.
[64 FR 49953, Sept. 14, 1999]
Sec. 32.32 Definitions.
For purposes of this subpart:
(a) The Act means the Federal Law Enforcement Dependents Assistance
Act of 1996, Public Law 104-238, Oct. 3, 1996, as amended by the Police,
Fire, and Emergency Assistance Act of 1998, Public Law 104-238, codified
as Subpart 2 of Part L of title I of the Omnibus Crime Control and Safe
Streets Act of 1968, 42 U.S.C. 3796d et seq.
(b)(1) Bureau means the Bureau of Justice Assistance of the Office
of Justice Programs, which is authorized to implement the provisions of
this subpart.
(2) PSOB means the Public Safety Officers' Benefits program
administered by the Bureau under subpart A of this part.
(3) PSOEA means the Public Safety Officers' Educational Assistance
program administered by the Bureau under this subpart.
(c) Public safety officer is an officer as defined in Sec. 32.2(j),
with respect to whom PSOB benefits have been approved under subpart A of
this part on account of the officer's death or disability in the line of
duty.
(d) Child means any person who was the biological, adopted, or
posthumous child, or the stepchild, of a public safety officer at the
time of the officer's death or disabling injury with respect to which
PSOB benefits were approved under subpart A of this part. A step-child
must meet the provisions set forth in Sec. 32.15.
(e) Spouse means the husband or wife of a deceased or permanently
and totally disabled officer at the time of the officer's death or
disabling injury with respect to which PSOB benefits were approved under
subpart A of this part, and includes a spouse living apart from the
officer at that time for any reason.
(f) Dependent means the child or spouse of any eligible public
safety officer.
(g) Program of education means any curriculum or any combination of
unit courses or subjects pursued at an eligible educational institution,
which generally is accepted as necessary to fulfill requirements for the
attainment of a predetermined and identified educational, professional,
or vocational objective. It includes course work for the attainment of
more than one objective if, in addition to the previous requirements,
all of the objectives generally are recognized as reasonably related to
a single career field.
(h) Eligible educational institution means a postsecondary
institution which--
(1) Is described in section 481 of the Higher Education Act of 1965
(20 U.S.C. 1088), as in effect on October 3, 1996, including--
(i) An institution of higher education as defined in section 1201(a)
of such Act (20 U.S.C. 1141(a)),
(ii) A proprietary institution of higher education,
(iii) A postsecondary vocational institution, or
(iv) A foreign medical school; and
(2) Is eligible to participate in student assistance programs under
title IV of such Act (20 U.S.C. 1070 et seq.).
(i) Satisfactory progress means that the dependent is maintaining
satisfactory progress in the program of education, as determined under
section
[[Page 479]]
484(c) of the Higher Education Act of 1965, as amended (20 U.S.C.
1091(c)).
(j) Educational expenses means tuition, room and board, books,
supplies, fees, and transportation expenses that are consistent with the
educational, professional or vocational objectives set forth by the
applicant in the application for assistance.
[62 FR 37716, July 15, 1997, as amended at 64 FR 49953, Sept. 14, 1999]
Sec. 32.33 Eligibility for assistance.
(a) Subject to the availability of appropriations, and the
provisions of the Act and this subpart, the Bureau shall provide
financial assistance to a dependent who attends a program of education
at an eligible educational institution and is--
(1) The child of any public safety officer with respect to whom PSOB
benefits have been approved under subpart A of this part;
(2) The spouse of such an officer at the time of the officer's death
or on the date of the officer's totally and permanently disabling
injury.
(b) The educational assistance under this subpart is intended for
the sole purpose of defraying the costs of educational expenses and may
only be used to defray such costs. A certification of educational use
will be required.
(c) No child shall be eligible for assistance under this subpart
after the child's 27th birthday, absent a finding by the Bureau of
extraordinary circumstances precluding the child from pursuing a program
of education, including but not limited to the death of a relative,
personal injury or illness of the student, military service, or
financial hardship.
(d) No dependent shall receive assistance under this subpart for a
period in excess of forty-five months of full-time education or
training, or a proportionate period of time for a part-time program.
[62 FR 37716, July 15, 1997, as amended at 64 FR 49953, Sept. 14, 1999]
Sec. 32.34 Application for assistance.
(a) A person seeking assistance under this subpart shall submit an
application to the Bureau in such form and containing such information
as the Bureau may reasonably require. The provisions of Sec. 32.21
relating to evidence shall apply to applications under this subpart.
(b) An applicant for assistance under this subpart must establish
that the Bureau previously has received and approved a claim for PSOB
benefits under subpart A of this part with respect to the death or
disability of the parent or spouse of the applicant.
(1) A spouse or child recognized as the beneficiary of a PSOB claim
under subpart A of the part with respect to a deceased officer will be
recognized as a spouse or child for purposes of this subpart.
(2) In the case of a disabled public safety officer approved for
PSOB benefits under subpart A of this part, applicants for assistance
under this subpart must submit birth or marriage certificates or other
proof of relationship consistent with Secs. 32.12 (spouse) and 32.13
(child), if such evidence had not been submitted with respect to the
PSOB claim.
(c) The application shall describe the program of education at an
eligible educational institution, and the educational expenses for which
assistance is sought. A request for assistance may be for prospective
assistance, for retroactive benefits pursuant to Sec. 32.35 (if
applicable), or both.
(d)(1) A request for prospective assistance must be accompanied by a
certified copy of the official letter of acceptance from the eligible
educational institution (on official letterhead) to the dependent,
accepting the applicant into an educational program.
(2) The applicant also shall submit to the Bureau, when it is
available, the schedule of classes in which the applicant is enrolled,
and which must be consistent with the educational, professional, or
vocational objectives stated in the application.
(e) An applicant may be represented in any proceeding before the
Bureau by an attorney or other person authorized to act on behalf of the
applicant pursuant to Secs. 32.19 and 32.22.
[62 FR 37716, July 15, 1997, as amended at 64 FR 49953, Sept. 14, 1999]
[[Page 480]]
Sec. 32.35 Retroactive benefits.
(a) Each dependent of a Federal law enforcement officer killed in
the line of duty on or after May 1, 1992, or permanently and totally
disabled in the line of duty on or after October 3, 1996, and each
dependent of a public safety officer killed in the line of duty on or
after October 1, 1997, shall be eligible for assistance, on the same
basis and subject to the limitations of this subpart, for each month in
which the dependent had pursued a program of education at an eligible
educational institution.
(b) To be eligible for retroactive benefits, the applicant must
submit a certified copy of transcripts from the educational institution
covering the relevant time period. No application will be accepted more
than five years from the last date the applicant pursued such program of
education.
(c) Subject to applicable limitations, retroactive benefits shall be
in addition to prospective assistance provided under this subpart. A
dependent eligible for retroactive benefits may choose to waive such
assistance and apply only for prospective assistance under the
provisions of this subpart.
[62 FR 37716, July 15, 1997, as amended at 62 FR 39120, July 22, 1997;
64 FR 49953, Sept. 14, 1999]
Sec. 32.36 Action on applications for assistance.
(a) After examining the application for prospective or retroactive
assistance under the provisions and limitations of this subpart, and any
additional relevant information, the Bureau shall notify the dependent
in writing of the approval or disapproval of the application.
(b) If the application is denied, in whole or part, the Bureau shall
explain the reasons for the denial. A copy of the decision, together
with information as to the right to an appeal, shall be mailed to the
applicant's last known address.
Sec. 32.37 Determination of benefits.
(a)(1) Financial assistance under this subpart shall consist of
direct payments to an eligible dependent and shall be computed on the
basis set forth in 38 U.S.C. 3532.
(2) The dependent's status as a full-time, three-quarter-time, half-
time, or less-than-half-time student will be determined in accordance
with the requirements of, and must be certified by, the eligible
educational institution.
(b) In applying the limitations under this subpart with respect to
prospective assistance, the Bureau shall consider any retroactive
benefits provided to the dependent pursuant to Sec. 32.35.
(c) Benefits payable under this subpart shall be in addition to any
other benefit that may be due from any other source, except that, if the
PSOEA assistance in combination with other benefits would exceed the
total approved costs for the applicant's program of education, the
assistance under this subpart will be reduced by the amount of such
excess.
(d) Benefits will be calculated in such a manner so as to ensure
those applicants who qualify for benefits, and who are in financial
need, i.e. would be unable to attend a program of study at a qualified
institution of higher education in the absence of the total benefit for
which they qualify, receive priority in receiving the authorized
assistance. Those qualified applicants who are in financial need, as
determined by BJA, will receive an amount of benefits to which they are
entitled, and which allow them to attend the approved program of study.
Those qualified applicants whose attendance at a program of study at an
institution of higher education is not contingent on the award of
benefits under this part, may receive a reduced amount of benefits in
the event that funds appropriated under this program are not sufficient
to award all qualified applicants the total amount of benefits to which
they are otherwise entitled.
[62 FR 37716, July 15, 1997, as amended at 64 FR 49954, Sept. 14, 1999]
Sec. 32.38 Denial of benefits.
(a) No benefit shall be paid under this subpart if the Bureau
determines that the dependent is not eligible for, is no longer eligible
for, or is not entitled to the assistance for which application is made.
Without limitation, this will include circumstances in which--
(1) The benefits would exceed the applicable durational limits;
[[Page 481]]
(2) A dependent child has exceeded the age limit for benefits;
(3) The dependent has failed to maintain satisfactory progress in
the selected program of education as defined in Sec. 32.32(i);
(4) The dependent is in default on any student loan obtained through
Title IV of the Higher Education Act of 1965, unless the assistance
under this subpart is used for repayment of the defaulted loans and the
applicant provides evidence of this fact to the Bureau in the form of an
approved repayment plan; or
(5) The dependent is subject to a denial of federal benefits under
21 U.S.C. 862.
(b) The Bureau shall deny benefits under this subpart if--
(1) The educational institution attended by the dependent fails to
meet a requirement for eligibility described in Sec. 32.32(h);
(2) The dependent's enrollment in or pursuit of the selected program
of education would fail to meet the criteria established in
Sec. 32.32(g); or
(3) The dependent already is qualified by previous education or
training for the educational, professional or vocational objective for
which the program of education is offered.
Sec. 32.39 Appeals.
An applicant may, within 30 days after notification of denial,
submit a written appeal request to the Bureau. Appeals will be handled
consistent with Sec. 32.24 and the appendix to this part, except that
such appeals shall not be handled by oral hearing but will be conducted
through a record review by an administrative hearing officer. Provisions
in Sec. 32.24 and the appendix to this part relating to oral hearings
shall not be applicable to appeals under this subpart.
Sec. 32.40 Repayment.
In the event that the recipient of financial assistance under this
subpart fails to maintain satisfactory progress, as defined in
Sec. 32.32(i), or otherwise become ineligible for assistance (other than
as a result of age or the expiration of the time limit for assistance),
the dependent is liable for repayment of funds awarded for prospective
assistance. The Director of the Bureau may waive all or part of such
repayment, based on a consideration of the circumstances and the
hardship that would result from such repayment.
Appendix to Part 32--PSOB Hearing and Appeal Procedures
a. Notification to Claimant of Denial
These appeal procedures apply to a claimant's \1\ request for
reconsideration of a denial made by the Public Safety Officers' Benefits
(PSOB) Office. The denial letter will advise the claimant of the
findings of fact and conclusions of law supporting the PSOB Office's
determination, and of the appeal procedures available under Sec. 32.24
of the PSOB regulations. A copy of every document in the case file that
(1) contributed to the determination, and (2) was not provided by the
claimant shall also be attached to the denial letter, except where
disclosure of the material would result in a clearly unwarranted
invasion of a third party's privacy. The attached material might
typically include medical opinions offered by the Armed Forces Institute
of Pathology or other medical experts, legal memoranda from the Office
of General Counsel of the Office of Justice Programs, or memoranda to
the file prepared by PSOB Office staff. A copy of the PSOB regulations
(28 CFR part 32) shall also be enclosed.
---------------------------------------------------------------------------
\1\ As used in this procedure, the word, ``claimant'' means a
claimant for benefits or, where appropriate, the claimant's designated
representative.
---------------------------------------------------------------------------
b. Receipt of Appeal
1. When an appeal has been received, the PSOB Office will assign the
case and will transmit the complete case file to a hearing officer.
Assignments will be made in turn, from a standing roster, except in
those cases where a case is particularly suitable to a specific hearing
officer's experience.
2. The PSOB Office will inform the claimant of the name of the
hearing officer, request submission of all evidence to the hearing
officer, and send a copy of this appeals procedure. If an oral hearing
is requested, the PSOB Office will be responsible for scheduling the
hearing and making the required travel arrangements.
3. The PSOB Office will be responsible for providing all
administrative support to the hearing officer. An attorney from the
Office of General Counsel (OGC) who has not participated in the
consideration of the claim will provide legal advice to the hearing
officer. The hearing officer is encouraged to solicit the advice of the
assigned OGC attorney on all questions of law.
[[Page 482]]
4. Prior to the hearing, the hearing officer shall request the
claimant to provide a list of expected witnesses and a brief summary of
their anticipated testimony.
c. Designation of Hearing Officers
A. In an internal instruction the BJA Director designated a roster
of hearing officers to hear PSOB appeals.
1. The hearing officers are specifically delegated the Director's
authority to:
(i) Issue subpoenas;
(ii) Administer oaths;
(iii) Examine witnesses; and
(iv) Receive evidence at any place in the United States the officer
may designate.
d. Conduct of the Oral Hearing
A. If requested, an oral hearing shall be conducted before the
hearing officer in any location agreeable to the officer and the
claimant.
1. The hearing officer shall call the hearing to order and advise
the claimant of (1) the findings of fact and conclusions of law
supporting the initial determination; (2) the nature of the hearing
officer's authority; and (3) the manner in which the hearing will be
conducted and a determination reached.
2. In conducting the hearing, the hearing officer shall not be bound
by common law or statutory rules of evidence, by technical or formal
rules or procedures, or by Chapter 5 of the Administrative Procedure
Act, but must conduct the hearing in such a manner as best to ascertain
the rights of the claimant.
3. The hearing officer shall receive such relevant evidence as may
be introduced by the claimant and shall, in addition, receive such other
evidence as the hearing officer may determine to be necessary or useful
in evaluating the claim.
4. Evidence may be presented orally or in the form of written
statements and exhibits. All witnesses shall be sworn by oath or
affirmation.
5. If the hearing officer believes that there is relevant and
material evidence available which has not been presented at the hearing,
the hearing may be adjourned and, at any time prior to the mailing of
notice of the decision, reopened for the receipt of such evidence. The
officer should, in any event, seek to conclude the hearing within 30
days from the first day of the hearing.
6. All hearings shall be attended by the claimant, his or her
representative, and such other persons as the hearing officer deems
necessary and proper. The wishes of the claimant should always be
solicited before any other persons are admitted to the hearing.
7. The hearing shall be recorded, and the original of the complete
transcript shall be made a part of the claims record.
8. The hearing will be deemed closed on the day the hearing officer
receives the last piece of evidence relevant to the proceeding.
9. If the claimant waives the oral hearing, the hearing officer
shall receive all relevant written evidence the claimant wishes to
submit. The hearing officer may ask the claimant to clarify or explain
the evidence submitted, when appropriate. The hearing officer should
seek to close the record no later than 60 days after the claimant's
request for reconsideration.
e. Determination
1. A copy of the transcript shall be provided to the hearing
officer, to the claimant, to the PSOB Office, and to the OGC after the
conclusion of the hearing.
2. The hearing officer shall make his, or her, determination no
later than the 30th day after the last evidence has been received.
Copies of the determination shall be made available to the PSOB Office
and the OGC for their review.
3. If either the PSOB Office or the OGC disagrees with the hearing
officer's final determination, that office may request the BJA Director
to review the record. If the BJA Director agrees to review the record,
he or she will send the hearing officer's determination, all comments
received from the PSOB Office, the OGC, or other sources (except where
disclosure of the material would result in an unwarranted invasion of
privacy), and notice of his or her intent to review the record to the
claimant. The BJA Director will also advise the claimant of his or her
opportunity to offer comments, new evidence, and argument within 30 days
after the receipt of notification. The BJA Director shall seek to advise
all parties of the final agency decision within 30 days after the
expiration of the comment period.
4. If the PSOB Office and the OGC agree with the hearing officer's
determination or the BJA Director declines to review the record, the
hearing officer's determination will be the final agency decision and
will be sent to the claimant by the PSOB Office immediately.
5. If the hearing officer's determination is a denial, all material
that (1) contributed to the determination and (2) was not provided by
the claimant shall be attached to the denial letter, except where
disclosure of the material would result in a clearly unwarranted
invasion of a third party's privacy. The claimant will be given an
opportunity to request the BJA Director to review the record and the
hearing officer's decision, and to offer comments, new evidence, or
argument within 30 days. The BJA Director shall advise all parties of
the final agency decision within 30 days after the expiration of the
comment period.
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6. The PSOB Office will provide administrative support to the
hearing officer and the BJA Director throughout the appeal process.