[Title 28 CFR 32]
[Code of Federal Regulations (annual edition) - July 1, 2009 Edition]
[Title 28 - JUDICIAL ADMINISTRATION]
[Chapter I - DEPARTMENT OF JUSTICE]
[Part 32 - PUBLIC SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL]
[From the U.S. Government Printing Office]
28JUDICIAL ADMINISTRATION12009-07-012009-07-01falsePUBLIC SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL32PART 32JUDICIAL ADMINISTRATIONDEPARTMENT OF JUSTICE
PART 32_PUBLIC SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL
ASSISTANCE BENEFIT CLAIMS--Table of Contents
Sec.
32.0 Scope of part.
Subpart A_General Provisions
32.1 Scope of subpart.
32.2 Computation of time; filing.
32.3 Definitions.
32.4 Terms; construction, severability; effect.
32.5 Evidence.
32.6 Payment and repayment.
32.7 Fees for representative services.
32.8 Exhaustion of administrative remedies.
[[Page 497]]
Subpart B_Death Benefit Claims
32.11 Scope of subpart.
32.12 Time for filing claim.
32.13 Definitions.
32.14 PSOB Office determination.
32.15 Prerequisite certification.
32.16 Payment.
32.17 Request for Hearing Officer determination.
Subpart C_Disability Benefit Claims
32.21 Scope of subpart.
32.22 Time for filing claim.
32.23 Definitions.
32.24 PSOB Office determination.
32.25 Prerequisite certification.
32.26 Payment.
32.27 Motion for reconsideration of negative disability finding.
32.28 Reconsideration of negative disability finding.
32.29 Request for Hearing Officer determination.
Subpart D_Educational Assistance Benefit Claims
32.31 Scope of subpart.
32.32 Time for filing claim.
32.33 Definitions.
32.34 PSOB Office determination.
32.35 Disqualification.
32.36 Payment and repayment.
32.37 Request for Hearing Officer determination.
Subpart E_Hearing Officer Determinations
32.41 Scope of subpart.
32.42 Time for filing request for determination.
32.43 Appointment and assignment of Hearing Officers.
32.44 Hearing Officer determination.
32.45 Hearings.
32.46 Director appeal.
Subpart F_Director Appeals and Reviews
32.51 Scope of subpart.
32.52 Time for filing Director appeal.
32.53 Review.
32.54 Director determination.
32.55 Judicial appeal.
Authority: 42 U.S.C. ch. 46, subch. XII; 42 U.S.C. 3782(a), 3787,
3788, 3791(a), 3793(a)(4) &(b), 3795a, 3796c-1, 3796c-2; sec. 1601,
title XI, Public Law 90-351, 82 Stat. 239; secs. 4 through 6, Public Law
94-430, 90 Stat. 1348; secs. 1 and 2, Public Law 107-37, 115 Stat. 219.
Source: 71 FR 46037, Aug. 10, 2006, unless otherwise noted.
Sec. 32.0 Scope of part.
This part implements the Act, which, as a general matter, authorizes
the payment of three different legal gratuities:
(a) Death benefits;
(b) Disability benefits; and
(c) Educational assistance benefits.
[73 FR 76528, Dec. 17, 2008]
Subpart A_General Provisions
Sec. 32.1 Scope of subpart.
This subpart contains provisions generally applicable to this part.
Sec. 32.2 Computation of time; filing.
(a) In computing any period of time prescribed or allowed, the day
of the act, event, or default from which the designated period of time
begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or a
federal legal holiday, or, when the act to be done is a filing with the
PSOB Office, a day on which weather or other conditions have caused that
Office to be closed or inaccessible, in which event the period runs
until the end of the next day that is not one of the aforedescribed
days.
(b) A filing is deemed filed with the PSOB Office, a Hearing
Officer, the Director, or any other OJP office, -officer, -employee, or
-agent, only on the day that it actually is received at the office of
the same. When a filing is prescribed to be filed with more than one of
the foregoing, it shall be deemed filed as of the day the last such one
so receives it.
(c) Notice is served by the PSOB Office upon an individual on the
day that it is--
(1) Mailed, by U.S. mail, addressed to the individual (or to his
representative) at his (or his representative's) last address known to
such Office;
(2) Delivered to a courier or other delivery service, addressed to
the individual (or to his representative) at his (or his
representative's) last address known to such Office; or
[[Page 498]]
(3) Sent by electronic means such as telefacsimile or electronic
mail, addressed to the individual (or to his representative) at his (or
his representative's) last telefacsimile number or electronic-mail
address, or other electronic address, known to such Office.
(d) In the event of withdrawal or abandonment of a filing, the time
periods prescribed for the filing thereof shall not be tolled, unless,
for good cause shown, the Director grants a waiver.
(e) No claim may be filed (or approved) under the Act, at 42 U.S.C.
3796(a) or (b), with respect to an injury, if a claim under the Act, at
42 U.S.C. 3796c-1 or Public Law 107-37, has been approved, with respect
to the same injury.
(f) No claim may be filed (or approved) under the Act, at 42 U.S.C.
3796c-1 or Public Law 107-37, with respect to an injury, if a claim
under the Act, at 42 U.S.C. 3796(a) or (b), has been approved, with
respect to the same injury.
Sec. 32.3 Definitions.
Act means the Public Safety Officers' Benefits Act of 1976
(generally codified at 42 U.S.C. 3796, et seq.; part L of title I of the
Omnibus Crime Control and Safe Streets Act of 1968) (including
(uncodified) sections 4 through 6 thereof (payment in advance of
appropriations, rule of construction and severability, and effective
date and applicability)), as applicable (cf. Sec. 32.4(d)) according to
its effective date and those of its various amendments (e.g., Sept. 29,
1976 (deaths of State and local law enforcement officers and
firefighters); Jan. 1, 1978 (educational assistance (officer died));
Oct. 1, 1984 (deaths of federal law enforcement officers and
firefighters); Oct. 18, 1986 (deaths of rescue squad and ambulance crew
members); Nov. 29, 1990 (disabilities); Oct. 3, 1996 (educational
assistance (officer disabled)); Oct. 30, 2000 (disaster relief workers);
Sept. 11, 2001 (chaplains and insurance beneficiaries); Dec. 15, 2003
(certain heart attacks and strokes); and Apr. 5, 2006 (designated
beneficiaries)); and also includes Public Law 107-37 and section 611 of
the USA PATRIOT Act (both of which relate to payment of benefits,
described under subpart 1 of such part L, in connection, respectively,
with the terrorist attacks of Sept. 11, 2001, or with such terrorist
attacks as may occur after Oct. 26, 2001), as well as the proviso under
the Public Safety Officers Benefits heading in title II of division B of
section 6 of Public Law 110-161.
Adopted child--An individual is an adopted child of a public safety
officer only if--
(1) The individual is legally adopted by the officer; or
(2) As of the injury date, and not being a stepchild, the individual
was--
(i) Known by the officer not to be his biological first-generation
offspring; and
(ii) After the officer obtained such knowledge, in a parent-child
relationship with him.
Authorized commuting means travel (not being described in the Act,
at 42 U.S.C. 3796a(1), and not being a frolic or a detour) by a public
safety officer--
(1) In the course of actually responding (as authorized) to a fire-,
rescue-, or police emergency, or to a particular and extraordinary
request (by the public agency he serves) for that specific officer to
perform public safety activity (including emergency response activity
the agency is authorized to perform), within his line of duty; or
(2) Between home and work (at a situs (for the performance of line
of duty activity or action) authorized or required by the public agency
he serves), or between any such authorized or required situs and
another--
(i) Using a vehicle provided by such agency, pursuant to a
requirement or authorization by such agency that he use the same for
commuting; or
(ii) Using a vehicle not provided by such agency, pursuant to a
requirement by such agency that he use the same for work.
Biological means genetic, but does not include circumstances where
the genetic donation (under the laws of the jurisdiction where the
offspring is conceived) does not (as of the time of such conception)
legally confer parental rights and obligations.
BJA means the Bureau of Justice Assistance, OJP.
[[Page 499]]
Cause--A death, injury, or disability is caused by intentional
misconduct if--
(1) The misconduct is a substantial factor in bringing it about; and
(2) It is a reasonably foreseeable result of the misconduct.
Certification means a formal assertion of a fact (or facts), in a
writing that is--
(1) Expressly intended to be relied upon by the PSOB determining
official in connection with the determination of a claim specifically
identified therein;
(2) Expressly directed to the PSOB determining official;
(3) Legally subject to the provisions of 18 U.S.C. 1001 (false
statements) and 1621 (perjury), and 28 U.S.C. 1746 (declarations under
penalty of perjury), and expressly declares the same to be so;
(4) Executed by a natural person with knowledge of the fact (or
facts) asserted and with legal authority to execute the writing (such as
to make the assertion legally that of the certifying party), and
expressly declares the same (as to knowledge and authority) to be so;
(5) In such form as the Director may prescribe from time to time;
(6) True, complete, and accurate (or, at a minimum, not known or
believed by the PSOB determining official to contain any material
falsehood, incompleteness, or inaccuracy); and
(7) Unambiguous, precise, and unequivocal, in the judgment of the
PSOB determining official, as to any fact asserted, any matter otherwise
certified, acknowledged, indicated, or declared, and any provision of
this definition.
Certification described in the Act, at 42 U.S.C. 3796c-1 or Public
Law 107-37, means a certification, acknowledging all the matter
specified in Sec. 32.5(f)(1) and (2)--
(1) In which the fact (or facts) asserted is the matter specified in
Sec. 32.5(f)(3);
(2) That expressly indicates that all of the terms used in making
the assertion described in paragraph (1) of this definition (or used in
connection with such assertion) are within the meaning of the Act, at 42
U.S.C. 3796c-1 or Public Law 107-37, and of this part; and
(3) That otherwise satisfies the provisions of the Act, at 42 U.S.C.
3796c-1 or Public Law 107-37, and of this part.
Chaplain means a clergyman, or other individual trained in pastoral
counseling, who meets the definition provided in the Act, at 42 U.S.C.
3796b(2).
Child of a public safety officer means an individual--
(1) Who--
(i) Meets the definition provided in the Act, at 42 U.S.C. 3796b(3),
in any claim--
(A) Arising from the public safety officer's death, in which the
death was simultaneous (or practically simultaneous) with the injury; or
(B) Filed after the public safety officer's death, in which the
claimant is the officer's--
(1) Biological child, born after the injury date;
(2) Adopted child, adopted by him after the injury date; or
(3) Stepchild, pursuant to a marriage entered into by him after the
injury date; or
(ii) In any claim not described in paragraph (1)(i) of this
definition--
(A) Meets (as of the injury date) the definition provided in the
Act, at 42 U.S.C. 3796b(3), mutatis mutandis (i.e., with ``deceased''
and ``death'' being substituted, respectively, by ``deceased or
disabled'' and ``injury''); or
(B) Having been born after the injury date, is described in
paragraph (1)(i)(B)(1), (2), or (3) of this definition; and
(2) With respect to whom the public safety officer's parental rights
have not been terminated, as of the injury date.
Commonly accepted means generally agreed upon within the medical
profession.
Consequences of an injury that permanently prevent an individual
from performing any gainful work means an injury whose consequences
permanently prevent an individual from performing any gainful work.
Convincing evidence means clear and convincing evidence.
Crime means an act or omission punishable as a criminal misdemeanor
or felony.
[[Page 500]]
Criminal laws means that body of law that declares what acts or
omissions are crimes and prescribes the punishment that may be imposed
for the same.
Department or agency--An entity is a department or agency within the
meaning of the Act, at 42 U.S.C. 3796b(8), and this part, only if the
entity is--
(1) A court;
(2) An agency described in the Act, at 42 U.S.C. 3796b(9)(B) or (C);
or
(3) Otherwise a public entity--
(i) That is legally an express part of the internal organizational
structure of the relevant government;
(ii) That has no legal existence independent of such government; and
(iii) Whose obligations, acts, omissions, officers, and employees
are legally those of such government.
Determination means the approval or denial of a claim (including an
affirmance or reversal pursuant to a motion for reconsideration under
Sec. 32.27), the determination described in the Act, at 42 U.S.C.
3796(c), or any recommendation under Sec. 32.54(c)(3).
Director means the Director of BJA.
Direct and proximate cause--Except as may be provided in the Act, at
42 U.S.C. 3796(k), something directly and proximately causes a wound,
condition, or cardiac-event, if it is a substantial factor in bringing
the wound, condition, or cardiac-event about.
Direct and proximate result of an injury--Except as may be provided
in the Act, at 42 U.S.C. 3796(k), a death or disability results directly
and proximately from an injury if the injury is a substantial factor in
bringing it about.
Disaster relief activity means activity or an action encompassed
within the duties described in the Act, at 42 U.S.C. 3796b(9)(B) or (C).
Disaster relief worker means any individual who meets the definition
provided in the Act, at 42 U.S.C. 3796b(9)(B) or (C).
Disturbance includes any significant and negative alteration, any
significant negative deviation from the objectively normal, or any
significant deterioration.
Divorce means a legally-valid divorce from the bond of wedlock
(i.e., the bond of marriage), except that, otherwise, and
notwithstanding any other provision of law, a spouse (or purported
spouse) of an individual shall be considered to be divorced from that
individual within the meaning of this definition if, subsequent to his
marriage (or purported marriage) to that individual (and while that
individual is living), the spouse (or purported spouse)--
(1) Holds himself out as being divorced from, or not being married
to, the individual;
(2) Holds himself out as being married to another individual; or
(3) Was a party to a ceremony purported by the parties thereto to be
a marriage between the spouse (or purported spouse) and another
individual.
Drugs or other substances means controlled substances within the
meaning of the drug control and enforcement laws, at 21 U.S.C. 802(6).
Educational/academic institution means an institution whose primary
purpose is educational or academic learning.
Eligible payee means--
(1) An individual (other than the officer) described in the Act, at
42 U.S.C. 3796(a), with respect to a claim under subpart B of this part;
or
(2) An individual described in the Act, at 42 U.S.C. 3796(b), with
respect to a claim under subpart C of this part.
Emergency medical services means--
(1) Provision of first-response emergency medical care (other than
in a permanent medical-care facility); or
(2) Transportation of persons in medical distress (or under
emergency conditions) to medical-care facilities.
Emergency response activity means response to a fire-, rescue-, or
police emergency.
Employed by a public agency--A public safety officer is employed,
within the meaning of the Act, at 42 U.S.C. 3796c-1 or Public Law 107-
37, by a public agency, when he--
(1) Is employed by the agency in a civilian capacity; and
(2) Is--
(i) Serving the agency in an official capacity (with respect to
officers of any kind but disaster relief workers); or
(ii) Performing official duties as described in the Act, at 42
U.S.C.
[[Page 501]]
3796b(9)(B) or (C) (with respect to disaster relief workers).
Employee does not include--
(1) Any independent contractor; or
(2) Any individual who is not eligible to receive death or
disability benefits from the purported employer on the same basis as a
regular employee of such employer would.
Employment in a civilian capacity refers to status as a civilian,
rather than to the performance of civilian functions.
Filing means any claim, request, motion, election, petition, or
appeal, and any item or matter (e.g., evidence, certifications,
authorizations, waivers, legal arguments, or lists) that is, or may be,
filed with the PSOB Office.
Fire protection means--
(1) Suppression of fire;
(2) Hazardous-material response; or
(3) Emergency medical services or rescue activity of the kind
performed by firefighters.
Fire-, rescue-, or police emergency includes disaster-relief
emergency.
Firefighter means an individual who--
(1) Is trained in--
(i) Suppression of fire; or
(ii) Hazardous-material response; and
(2) Has the legal authority and responsibility to engage in the
suppression of fire, as--
(i) An employee of the public agency he serves, which legally
recognizes him to have such (or, at a minimum, does not deny (or has not
denied) him to have such); or
(ii) An individual otherwise included within the definition provided
in the Act, at 42 U.S.C. 3796b(4).
Functionally within or -part of--No individual shall be understood
to be functionally within or -part of a public agency solely by virtue
of an independent contractor relationship.
Gross negligence means great, heedless, wanton, indifferent, or
reckless departure from ordinary care, prudence, diligence, or safe
practice--
(1) In the presence of serious risks that are known or obvious;
(2) Under circumstances where it is highly likely that serious harm
will follow; or
(3) In situations where a high degree of danger is apparent.
Hazardous-material response means emergency response to the
threatened or actual release of hazardous materials, where life,
property, or the environment is at significant risk.
Heart attack means--
(1) A myocardial infarction; or
(2) A cardiac-event (i.e., cessation, interruption, arrest, or other
similar disturbance of heart function), not included in paragraph (1) of
this definition, that is--
(i) Acute; and
(ii) Directly and proximately caused by a pathology (or pathological
condition) of the heart or of the coronary arteries.
Illegitimate child--An individual is an illegitimate child of a
public safety officer only if he is a natural child of the officer, and
the officer is not married to the other biological parent at (or at any
time after) the time of his conception.
Incapable of self-support because of physical or mental disability--
An individual is incapable of self-support because of physical or mental
disability if he is under a disability within the meaning of the Social
Security Act, at 42 U.S.C. 423(d)(1)(A), applicable mutatis mutandis.
Independent contractor includes any volunteer, servant, employee,
contractor, or agent, of an independent contractor.
Injury means a traumatic physical wound (or a traumatized physical
condition of the body) directly and proximately caused by external force
(such as bullets, explosives, sharp instruments, blunt objects, or
physical blows), chemicals, electricity, climatic conditions, infectious
disease, radiation, virii, or bacteria, but does not include--
(1) Any occupational disease; or
(2) Any condition of the body caused or occasioned by stress or
strain.
Injury date--Except with respect to claims under the Act, at 42
U.S.C. 3796(k) (where, for purposes of determining beneficiaries under
the Act, at 42 U.S.C. 3796(a), it generally means the time of the heart
attack or stroke referred to in the Act, at 42 U.S.C. 3796(k)(2)),
injury date means the time of the line of duty injury that--
[[Page 502]]
(1) Directly and proximately results in the public safety officer's
death, with respect to a claim under--
(i) Subpart B of this part; or
(ii) Subpart D of this part, by virtue of his death; or
(2) Directly (or directly and proximately) results in the public
safety officer's total and permanent disability, with respect to a claim
under--
(i) Subpart C of this part; or
(ii) Subpart D of this part, by virtue of his disability.
Instrumentality means entity, and does not include any individual,
except that no entity shall be considered an instrumentality within the
meaning of the Act, at 42 U.S.C. 3796b(8), or this part, unless, as of
the injury date,
(1) The entity--
(i) Is legally established, -recognized, or -organized, such that it
has legal existence; and
(ii) Is so organized and controlled, and its affairs so conducted,
that it operates and acts solely and exclusively as a functional part of
the relevant government, which legally recognizes it as such (or, at a
minimum, does not deny (or has not denied) it to be such); and
(2) The entity's--
(i) Functions and duties are solely and exclusively of a public
character;
(ii) Services are provided generally to the public as such
government would provide if acting directly through its public employees
(i.e., they are provided without regard to any particular relationship
(such as a subscription) a member of the public may have with such
entity); and
(iii) Acts and omissions are, and are recognized by such government
as (or, at a minimum, not denied by such government to be), legally--
(A) Those of such government, for purposes of sovereign immunity; or
(B) The responsibility of such government, for purposes of tort
liability.
Intention--A death, injury, or disability is brought about by a
public safety officer's intention if--
(1) An intentional action or activity of his is a substantial factor
in bringing it about; and
(2) It is a reasonably foreseeable result of the intentional action
or activity.
Intentional action or activity means activity or action (other than
line of duty activity or action), including behavior, that is--
(1) A result of conscious volition, or otherwise voluntary;
(2) Not a result of legal insanity or of impulse that is legally and
objectively uncontrollable; and
(3) Not performed under legal duress or legal coercion of the will.
Intentional misconduct--A public safety officer's action or activity
is intentional misconduct if--
(1) As of the date it is performed,
(i) Such action or activity--
(A) Is in violation of, or otherwise prohibited by, any statute,
rule, regulation, condition of employment or service, official mutual-
aid agreement, or other law; or
(B) Is contrary to the ordinary, usual, or customary practice of
similarly-situated officers within the public agency in which he serves;
and
(ii) He knows, or reasonably should know, that it is so in
violation, prohibited, or contrary; and
(2) Such action or activity--
(i) Is intentional; and
(ii) Is--
(A) Performed without reasonable excuse; and
(B) Objectively unjustified.
Involvement--An individual is involved in crime and juvenile
delinquency control or reduction, or enforcement of the criminal laws
(including juvenile delinquency), only if he is an officer of a public
agency and, in that capacity, has legal authority and -responsibility to
arrest, apprehend, prosecute, adjudicate, correct or detain (in a prison
or other detention or confinement facility), or supervise (as a parole
or probation officer), persons who are alleged or found to have violated
the criminal laws, and is recognized by such agency, or the relevant
government (or, at a minimum, not denied by such agency, or the relevant
government), to have such authority and responsibility.
Itemized description of representative services provided--A
description of representative services provided is itemized only when it
includes--
(1) The beginning and end dates of the provision of the services;
[[Page 503]]
(2) An itemization of the services provided and the amount of time
spent in providing them; and
(3) An itemization of the expenses incurred in connection with the
services provided for which reimbursement is sought.
Kinds of public safety officers--The following are the different
kinds of public safety officers:
(1) Law enforcement officers;
(2) Firefighters;
(3) Chaplains;
(4) Members of rescue squads or ambulance crews; and
(5) Disaster relief workers.
Law enforcement means enforcement of the criminal laws, including--
(1) Control or reduction of crime or of juvenile delinquency;
(2) Prosecution or adjudication of individuals who are alleged or
found to have violated such laws;
(3) Prison security activity; and
(4) Supervision of individuals on parole or probation for having
violated such laws.
Line of duty activity or action--Activity or an action is performed
in the line of duty, in the case of a public safety officer who is--
(1) A law enforcement officer, a firefighter, or a member of a
rescue squad or ambulance crew--
(i) Whose primary function (as applicable) is public safety
activity, only if, not being described in the Act, at 42 U.S.C.
3796a(1), and not being a frolic or detour, it is activity or an action
that he is obligated or authorized by statute, rule, regulation,
condition of employment or service, official mutual-aid agreement, or
other law, to perform (including any social, ceremonial, or athletic
functions (or any official training programs of his public agency) to
which he is assigned, or for which he is compensated), under the
auspices of the public agency he serves, and such agency (or the
relevant government) legally recognizes that activity or action to have
been so obligated or authorized at the time performed (or, at a minimum,
does not deny (or has not denied) it to have been such); or
(ii) Whose primary function is not public safety activity, only if,
not being described in the Act, at 42 U.S.C. 3796a(1), and not being a
frolic or detour--
(A) It is activity or an action that he 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 have
been so obligated or authorized at the time performed (or, at a minimum,
does not deny (or has not denied) it to have been such); and
(B) It is performed (as applicable) in the course of public safety
activity (including emergency response activity the agency is authorized
to perform), or taking part (as a trainer or trainee) in an official
training program of his public agency for such activity, and such agency
(or the relevant government) legally recognizes it to have been such at
the time performed (or, at a minimum, does not deny (or has not denied)
it to have been such);
(2) A disaster relief worker, only if, not being described in the
Act, at 42 U.S.C. 3796a(1), and not being a frolic or detour, it is
disaster relief activity, and the agency he serves (or the relevant
government), being described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C), legally recognizes it to have been such at the time performed (or,
at a minimum, does not deny (or has not denied) it to have been such);
or
(3) A chaplain, only if, not being described in the Act, at 42
U.S.C. 3796a(1), and not being a frolic or detour--
(i) It is activity or an action that he 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 it to have been such at the time
performed (or, at a minimum, does not deny (or has not denied) it to
have been such); and
(ii) It is performed in the course of responding to a fire-, rescue-
, or police emergency, and such agency (or the relevant government)
legally recognizes it to have been such at the time performed (or, at a
minimum, does not
[[Page 504]]
deny (or has not denied) it to have been such).
Line of duty injury--An injury is sustained in the line of duty only
if--
(1) It is sustained in the course of--
(i) Performance of line of duty activity or a line of duty action;
or
(ii) Authorized commuting; or
(2) Convincing evidence demonstrates that such injury resulted from
the injured party's status as a public safety officer.
Mental faculties means brain function.
Natural child--An individual is a natural child of a public safety
officer only if he is a biological child of the officer, and the officer
is alive at the time of his birth.
Occupational disease means a disease (including an ailment or
condition of the body) that routinely constitutes a special hazard in,
or is commonly regarded as a concomitant of, an individual's occupation.
Official capacity--An individual serves a public agency in an
official capacity only if--
(1) He is officially authorized, -recognized, or -designated (by
such agency) as functionally within or -part of it; and
(2) His acts and omissions, while so serving, are legally those of
such agency, which legally recognizes them as such (or, at a minimum,
does not deny (or has not denied) them to be such).
Official duties means duties that are officially authorized, -
recognized, or -designated by an employing entity, such that the
performance of those duties is legally the action of such entity, which
legally recognizes it as such (or, at a minimum, does not deny (or has
not denied) it to be such).
Official training program of a public safety officer's public agency
means a program--
(1) That is officially sponsored, -conducted, or -authorized by the
public agency in which he serves; and
(2) Whose purpose is to train public safety officers of his kind in
(or to improve their skills in), specific activity or actions
encompassed within their respective lines of duty.
Officially recognized or designated member of a department or agency
means a member of a department or agency, or of an instrumentality, of a
government described in the Act, at 42 U.S.C. 3796b(8), who is
officially recognized (or officially designated) as such a member by the
same.
Officially recognized or designated public employee of a department
or agency means a public employee of a department or agency who is
officially recognized (or officially designated) as a public safety
officer, by the same.
Officially recognized or designated public employee member of a
squad or crew means a public employee member of a squad or crew who is
officially recognized (or officially designated) as such a public
employee member, by the public agency under whose auspices the squad or
crew operates.
OJP means the Office of Justice Programs, U.S. Department of
Justice.
Parent means a father or a mother.
Parent-child relationship means a relationship between a public
safety officer and another individual, in which the officer has the role
of parent (other than biological or legally-adoptive), as shown by
convincing evidence.
Performance of duties in a grossly negligent manner at the time of
death or catastrophic injury means gross negligence, as of or near the
injury date, in the course of authorized commuting or performance of
line of duty activity or a line of duty action, where such negligence is
a substantial contributing factor in bringing such death or injury
about.
Posthumous child--An individual is a posthumous child of a public
safety officer only if he is a biological child of the officer, and the
officer is--
(1) Alive at the time of his conception; and
(2) Deceased at or before the time of his birth.
Prison security activity means correctional or detention activity
(in a prison or other detention or confinement facility) of individuals
who are alleged or found to have violated the criminal laws.
PSOB determining official means, as applicable, any of the
following:
(1) The PSOB Office;
(2) The Hearing Officer; or
(3) The Director.
PSOB Office means the unit of BJA that directly administers the
Public
[[Page 505]]
Safety Officers' Benefits program, except that, with respect to the
making of any finding, determination, affirmance, reversal, assignment,
authorization, decision, judgment, waiver, or other ruling, it means
such unit, acting with the concurrence of OJP's General Counsel.
Public employee means--
(1) An employee of a government described in the Act, at 42 U.S.C.
3796b(8), (or of a department or agency thereof) and whose acts and
omissions while so employed are legally those of such government, which
legally recognizes them as such (or, at a minimum, does not deny (or has
not denied) them to be such); or
(2) An employee of an instrumentality of a government described in
the Act, at 42 U.S.C. 3796b(8), who is eligible to receive disability
benefits (or whose survivors are eligible to receive death benefits)
from such government on the same basis as an employee of that government
(within the meaning of paragraph (1) of this definition), or his
survivors, would.
Public employee member of a squad or crew means a member of a squad
or crew who is a public employee under the auspices of whose public
agency employer the squad or crew operates.
Public employee of a department or agency means a public employee
whose public agency employer is the department or agency.
Public safety activity means any of the following:
(1) Law enforcement;
(2) Fire protection;
(3) Rescue activity; or
(4) The provision of emergency medical services.
Qualified beneficiary--An individual is a qualified beneficiary
under the Act, at 42 U.S.C. 3796c-1 or Public Law 107-37, only if he is
an eligible payee--
(1) Who qualifies as a beneficiary pursuant to a final agency
determination that--
(i) The requirements of the Act, at 42 U.S.C. 3796(a) or (b)
(excluding the limitations relating to appropriations), as applicable,
have been met; and
(ii) The provisions of this part, as applicable, relating to payees
otherwise have been met; and
(2) Whose actions were not a substantial contributing factor to the
death of the public safety officer (with respect to a claim under
subpart B of this part).
Representative services include expenses incurred in connection with
such services.
Rescue activity means search or rescue assistance in locating or
extracting from danger persons lost, missing, or in imminent danger of
serious bodily harm.
Rescue squad or ambulance crew means a squad or crew whose members
are rescue workers, ambulance drivers, paramedics, health-care
responders, emergency medical technicians, or other similar workers,
who--
(1) Are trained in rescue activity or the provision of emergency
medical services; and
(2) As such members, have the legal authority and -responsibility
to--
(i) Engage in rescue activity; or
(ii) Provide emergency medical services.
Spouse means an individual's lawful husband, -wife, -widower, or -
widow (i.e., with whom the individual lawfully entered into marriage),
and includes a spouse living apart from the individual, other than
pursuant to divorce, except that, notwithstanding any other provision of
law--
(1) For an individual purporting to be a spouse on the basis of a
common-law marriage (or a putative marriage) to be considered a spouse
within the meaning of this definition, it is necessary (but not
sufficient) for the jurisdiction of domicile of the parties to recognize
such individual as the lawful spouse of the other; and
(2) In deciding who may be the spouse of a public safety officer--
(i) The relevant jurisdiction of domicile is the officer's (as of
the injury date); and
(ii) With respect to a claim under subpart B of this part, the
relevant date is that of the officer's death.
Stepchild--An individual is a stepchild of a public safety officer
only if the individual is the legally-adoptive or biological first-
generation offspring
[[Page 506]]
of a public safety officer's current, deceased, or former spouse, which
offspring (not having been legally adopted by the officer)--
(1) Was conceived before the marriage of the officer and the spouse;
and
(2) As of the injury date--
(i) Was known by the officer not to be his biological first-
generation offspring; and
(ii) After the officer obtained such knowledge--
(A) Received over half of his support from the officer;
(B) Had as his principal place of abode the home of the officer and
was a member of the officer's household; or
(C) Was in a parent-child relationship with the officer.
Stress or strain includes physical stress or strain, mental stress
or strain, post-traumatic stress disorder, and depression.
Stroke means cerebral vascular accident.
Student means an individual who meets the definition provided in the
Act, at 42 U.S.C. 3796b(3)(ii), with respect to an educational/academic
institution.
Substantial contributing factor--A factor substantially contributes
to a death, injury, or disability, if the factor--
(1) Contributed to the death, injury, or disability to a significant
degree; or
(2) Is a substantial factor in bringing the death, injury, or
disability about.
Substantial factor--A factor substantially brings about a death,
injury, disability, wound, condition, cardiac-event, heart attack, or
stroke if--
(1) The factor alone was sufficient to have caused the death,
injury, disability, wound, condition, cardiac-event, heart attack, or
stroke; or
(2) No other factor (or combination of factors) contributed to the
death, injury, disability, wound, condition, cardiac-event, heart
attack, or stroke to so great a degree as it did.
Suppression of fire means extinguishment, physical prevention, or
containment of fire, including on-site hazard evaluation.
Terrorist attack--An event or act is a terrorist attack within the
meaning of the Act, at 42 U.S.C. 3796c-1(a), only if the Attorney
General determines that--
(1) There is a reasonable indication that the event or act was (or
would be or would have been, with respect to a priori prevention or
investigation efforts) an act of domestic or international terrorism
within the meaning of the criminal terrorism laws, at 18 U.S.C. 2331;
and
(2) The event or act (or the circumstances of death or injury) was
of such extraordinary or cataclysmic character as to make particularized
factual findings impossible, impractical, unnecessary, or unduly
burdensome.
Voluntary intoxication at the time of death or catastrophic injury
means the following, as shown by any commonly-accepted tissue, -fluid,
or -breath test or by other competent evidence:
(1) With respect to alcohol, (i) In any claim arising from a public
safety officer's death in which the death was simultaneous (or
practically simultaneous) with the injury, it means intoxication as
defined in the Act, at 42 U.S.C. 3796b(5), unless convincing evidence
demonstrates that the officer did not introduce the alcohol into his
body intentionally; and
(ii) In any claim not described in paragraph (1)(i) of this
definition, unless convincing evidence demonstrates that the officer did
not introduce the alcohol into his body intentionally, it means
intoxication--
(A) As defined in the Act, at 42 U.S.C. 3796b(5), mutatis mutandis
(i.e., with ``post-mortem'' (each place it occurs) and ``death'' being
substituted, respectively, by ``post-injury'' and ``injury''); and
(B) As of the injury date; and
(2) With respect to drugs or other substances, it means intoxication
as defined in the Act, at 42 U.S.C. 3796b(5), as evidenced by the
presence (as of the injury date) in the body of the public safety
officer--
(i) Of any controlled substance included on Schedule I of the drug
control and enforcement laws (see 21 U.S.C. 812(a)), or any controlled
substance included on Schedule II, III, IV, or V of such laws (see 21
U.S.C. 812(a)) and with
[[Page 507]]
respect to which there is no therapeutic range or maximum recommended
dosage, unless convincing evidence demonstrates that such introduction
was not a culpable act of the officer's under the criminal laws; or
(ii) Of any controlled substance included on Schedule II, III, IV,
or V of the drug control and enforcement laws (see 21 U.S.C. 812(a)) and
with respect to which there is a therapeutic range or maximum
recommended dosage--
(A) At levels above or in excess of such range or dosage, unless
convincing evidence demonstrates that such introduction was not a
culpable act of the officer's under the criminal laws; or
(B) At levels at, below, or within such range or dosage, unless
convincing evidence demonstrates that--
(1) Such introduction was not a culpable act of the officer's under
the criminal laws; or
(2) The officer was not acting in an intoxicated manner immediately
prior to the injury date.
[71 FR 46037, Aug. 10, 2006, as amended at 73 FR 76528, Dec. 17, 2008]
Sec. 32.4 Terms; construction, severability; effect.
(a) In determining the meaning of any provision of this part, unless
the context should indicate otherwise, the first three provisions of 1
U.S.C. 1 (rules of construction) shall apply.
(b) If benefits are denied to any individual pursuant to the Act, at
42 U.S.C. 3796a(4), or otherwise because his actions were a substantial
contributing factor to the death of the public safety officer, such
individual shall be presumed irrebuttably, for all purposes, not to have
survived the officer.
(c) Any provision of this part held to be invalid or unenforceable
by its terms, or as applied to any person or circumstance, shall be
construed so as to give it the maximum effect permitted by law, unless
such holding shall be one of utter invalidity or unenforceability, in
which event such provision shall be deemed severable herefrom and shall
not affect the remainder hereof or the application of such provision to
other persons not similarly situated or to other, dissimilar
circumstances.
(d) Unless the same should expressly provide otherwise (e.g., by use
of the word ``hereafter'' in an appropriations proviso), any amendment
to the Act (or any statutory enactment otherwise directly referent or -
applicable to the program that is the subject of this part), shall apply
only with respect to injuries (or, in connection with claims under the
Act, at 42 U.S.C. 3796(k), shall apply only with respect to heart
attacks or strokes referred to in the Act, at 42 U.S.C. 3796(k)(2))
occurring on or after the date it takes effect.
[73 FR 76531, Dec. 17, 2008]
Sec. 32.5 Evidence.
(a) Except as otherwise may be expressly provided in the Act or this
part, a claimant has the burden of persuasion as to all material issues
of fact, and by the standard of proof of ``more likely than not.''
(b) Except as otherwise may be expressly provided in this part, the
PSOB determining official may, at his discretion, consider (but shall
not be bound by) the factual findings of a public agency.
(c) Rules 301 (presumptions), 401 (relevant evidence), 402
(admissibility), 602 to 604 (witnesses), 701 to 704 (testimony), 901 to
903 (authentication), and 1001 to 1007 (contents of writings, records,
and photographs) of the Federal Rules of Evidence shall apply, mutatis
mutandis, to all filings, hearings, and other proceedings or matters. No
extrinsic evidence of authenticity as a condition precedent to
admissibility shall be required with respect to any document purporting
to bear the signature of an expert engaged by the BJA.
(d) In determining a claim, the PSOB determining official may, at
his discretion, draw an adverse inference if, without reasonable
justification or excuse--
(1) A claimant fails or refuses to file with the PSOB Office--
(i) Such material- or relevant evidence or -information within his
possession, control, or ken as may reasonably be requested from time to
time by such official; or
(ii) Such authorizations or waivers as may reasonably be requested
from time to time by such official to enable him (or to assist in
enabling him) to obtain
[[Page 508]]
access to material- or relevant evidence or -information of a medical,
personnel, financial, or other confidential nature;
(2) A claimant under subpart C of this part fails or refuses to
appear in person--
(i) At his hearing under subpart E of this part (if there be such a
hearing); or
(ii) Before such official (or otherwise permit such official
personally to observe his condition), at a time and location reasonably
convenient to both, as may reasonably be requested by such official; or
(3) A claimant under subpart B or C of this part fails or refuses to
apply for (or to pursue to completion), in timely fashion, the benefits,
if any, described in Sec. 32.15(a)(1)(i) or Sec. 32.25(a)(1)(i),
respectively.
(e) In determining a claim, the PSOB determining official may, at
his discretion, draw an inference of voluntary intoxication at the time
of death or catastrophic injury if, without reasonable justification or
excuse, appropriate toxicologic analysis (including autopsy, in the
event of death) is not performed, and/or the results thereof are not
filed with the PSOB Office, where there is credible evidence suggesting
that intoxication may have been a factor in the death or injury, or that
the public safety officer--
(1) As of or near the injury date, was--
(i) A consumer of alcohol--
(A) In amounts likely to produce a blood-alcohol level of .10 per
centum or greater in individuals similar to the officer in weight and
sex; or
(B) In any amount, after ever having been treated at an inpatient
facility for alcoholism;
(ii) A consumer of controlled substances included on Schedule I of
the drug control and enforcement laws (see 21 U.S.C. 812(a)); or
(iii) An abuser of controlled substances included on Schedule II,
III, IV, or V of the drug control and enforcement laws (see 21 U.S.C.
812(a)); or
(2) Immediately prior to the injury date, was under the influence of
alcohol or drugs or other substances or otherwise acting in an
intoxicated manner.
(f) In determining a claim under the Act, at 42 U.S.C. 3796c-1 or
Public Law 107-37, the certification described therein shall constitute
prima facie evidence--
(1) Of the public agency's acknowledgment that the public safety
officer, as of the injury date, was--
(i) A public safety officer of the kind described in the
certification;
(ii) Employed by the agency (i.e., performing official functions
for, or on behalf of, the agency); and
(iii) One of the following:
(A) With respect to a law enforcement officer, an officer of the
agency;
(B) With respect to a firefighter,
(1) An officially recognized or designated member of the agency (if
it is a legally organized volunteer fire department); or
(2) An employee of the agency;
(C) With respect to a chaplain,
(1) An officially recognized or designated member of the agency (if
it is a legally organized police or volunteer fire department); or
(2) An officially recognized or designated public employee of the
agency (if it is a legally organized police or fire department);
(D) With respect to a member of a rescue squad or ambulance crew, an
officially recognized or designated public employee member of one of the
agency's rescue squads or ambulance crews; or
(E) With respect to a disaster relief worker, an employee of the
agency (if it is described in the Act, at 42 U.S.C. 3796b(9)(B) or (C));
(2) Of the public agency's acknowledgment that there are no eligible
payees other than those identified in the certification; and
(3) That the public safety officer--
(i) Sustained a line of duty injury in connection with public safety
activity (or, otherwise, with efforts described in the Act, at 42 U.S.C.
3796c-1 or Public Law 107-37) related to a terrorist attack (under the
former statute) or to the terrorist attacks of September 11, 2001 (under
the latter statute); and
(ii) As a direct and proximate result of such injury, was (as
applicable)--
(A) Killed (with respect to a claim under subpart B of this part);
or
[[Page 509]]
(B) Totally and permanently disabled (with respect to a claim under
subpart C of this part).
(g) In determining a claim, the PSOB determining official shall
have, in addition to the hearing-examiner powers specified at 42 U.S.C.
3787 (hearings, subpoenas, oaths, witnesses, evidence), and to the
authorities specified at 42 U.S.C. 3788(b)-(d) (experts, consultants,
government resources) and in the Act and this part, the authority
otherwise and in any reasonable manner to conduct his own inquiries, as
appropriate.
(h) Acceptance of payment (by a payee (or on his behalf)) shall
constitute prima facie evidence that the payee (or the pay agent)--
(1) Endorses as his own (to the best of his knowledge and belief)
the statements and representations made, and the evidence and
information provided, pursuant to the claim; and
(2) Is aware (in connection with the claim) of no--
(i) Fraud;
(ii) Concealment or withholding of evidence or information;
(iii) False, incomplete, or inaccurate statements or
representations;
(iv) Mistake, wrongdoing, or deception; or
(v) Violation of 18 U.S.C. 287 (false, fictitious, or fraudulent
claims), 1001 (false statements), or 1621 (perjury), or 42 U.S.C. 3795a
(falsification or concealment of facts).
(i) A public safety officer's response to an emergency call from his
public agency for him to perform public safety activity (including
emergency response activity the agency is authorized to perform) shall
constitute prima facie evidence of such response's non-routine
character.
[73 FR 76531, Dec. 17, 2008]
Sec. 32.6 Payment and repayment.
(a) No payment shall be made to (or on behalf of) more than one
individual, on the basis of being a particular public safety officer's
spouse. If more than one should qualify, payment shall be made to the
one with whom the officer considered himself, as of the injury date, to
have the closest relationship, except that the individual (if any) who
was a member of the officer's household (as of such date) shall be
presumed rebuttably to be such one, unless legal proceedings (by the
officer against such member, or vice versa) shall have been pending then
in any court.
(b) No payment shall be made, save--
(1) To (or on behalf of) a living beneficiary; and
(2) Pursuant to--
(i) A written claim filed by (or on behalf of) such beneficiary; and
(ii) Except as provided in the Act, at 42 U.S.C. 3796(c), approval
of such claim.
(c) Any amounts that would be paid but for the provisions of
paragraph (b) of this section shall be retained by the United States and
not paid.
(d) With respect to the amount paid to a payee (or on his behalf)
pursuant to a claim, the payee shall repay the following, unless, for
good cause shown, the Director grants a full or partial waiver pursuant
to the Act, at 42 U.S.C. 3796(m):
(1) The entire amount, if approval of the claim was based, in whole
or in material part, on the payee's (or any other person's or entity's)
fraud, concealment or withholding of evidence or information, false,
incomplete, or inaccurate statements or representations, mistake,
wrongdoing, or deception; or
(2) The entire amount subject to divestment, if the payee's
entitlement to such payment is divested, in whole or in part, such as by
the subsequent discovery of individuals entitled to make equal or
superior claims.
(e) At the discretion of the Director, repayment of amounts owing or
collectable under the Act or this part may, as applicable, be executed
through setoffs against future payments on financial claims under
subpart D of this part.
[73 FR 76532, Dec. 17, 2008]
Sec. 32.7 Fees for representative services.
(a) A person seeking to receive any amount from (or with respect to)
a claimant for representative services provided in connection with any
claim may petition the PSOB Office for authorization under this section.
Such petition shall include--
(1) An itemized description of the services;
[[Page 510]]
(2) The total amount sought to be received, from any source, as
consideration for the services;
(3) An itemized description of any representative or other services
provided to (or on behalf of) the claimant in connection with other
claims or causes of action, unrelated to the Act, before any public
agency or non-public entity (including any insurer), arising from the
public safety officer's death, disability, or injury;
(4) The total amount requested, charged, received, or sought to be
received, from any source, as consideration for the services described
in paragraph (a)(3) of this section;
(5) A statement of whether the petitioner has legal training or is
licensed to practice law, and a description of any special
qualifications possessed by the petitioner (other than legal training or
a license to practice law) that increased the value of his services to
(or on behalf of) the claimant;
(6) A certification that the claimant was provided, simultaneously
with the filing of the petition, with--
(i) A copy of the petition; and
(ii) A letter advising the claimant that he could file his comments
on the petition, if any, with the PSOB Office, within thirty-three days
of the date of that letter; and
(7) A copy of the letter described in paragraph (a)(6)(ii) of this
section.
(b) Unless, for good cause shown, the Director extends the time for
filing, no petition under paragraph (a) of this section shall be
considered if the petition is filed with the PSOB Office later than one
year after the date of the final agency determination of the claim.
(c) Subject to paragraph (d) of this section, an authorization under
paragraph (a) of this section shall be based on consideration of the
following factors:
(1) The nature of the services provided by the petitioner;
(2) The complexity of the claim;
(3) The level of skill and competence required to provide the
petitioner's services;
(4) The amount of time spent on the claim by the petitioner;
(5) The results achieved as a function of the petitioner's services;
(6) The level of administrative or judicial review to which the
claim was pursued and the point at which the petitioner entered the
proceedings;
(7) The ordinary, usual, or customary fee charged by other persons
(and by the petitioner) for services of a similar nature; and
(8) The amount authorized by the PSOB Office in similar cases.
(d) No amount shall be authorized under paragraph (a) of this
section for--
(1) Any stipulated-, percentage-, or contingency fee;
(2) Services at a rate in excess of that specified in 5 U.S.C.
504(b)(1)(A)(ii) (Equal Access to Justice Act); or
(3) Services provided in connection with--
(i) Obtaining or providing evidence or information previously
obtained by the PSOB determining official;
(ii) Preparing the petition; or
(iii) Explaining or delivering an approved claim to the claimant.
(e) Upon a petitioner's failure (without reasonable justification or
excuse) to pursue in timely fashion his filed petition under paragraph
(a) of this section, the Director may, at his discretion, deem the same
to be abandoned, as though never filed. Not less than thirty-three days
prior thereto, the PSOB Office shall serve the petitioner and the
claimant with notice of the Director's intention to exercise such
discretion.
(f) Upon its authorizing or not authorizing the payment of any
amount under paragraph (a) of this section, the PSOB Office shall serve
notice of the same upon the claimant and the petitioner. Such notice
shall specify the amount, if any, the petitioner is authorized to charge
the claimant and the basis of the authorization.
(g) No agreement for representative services in connection with a
claim shall be valid if the agreement provides for any consideration
other than under this section. A person's receipt of consideration for
such services other than under this section may, among other things, be
the subject of referral by BJA to appropriate professional,
administrative, disciplinary, or other legal authorities.
[[Page 511]]
Sec. 32.8 Exhaustion of administrative remedies.
No determination or negative disability finding that, at the time
made, may be subject to a request for a Hearing Officer determination, a
motion for reconsideration, or a Director appeal, shall be considered a
final agency determination for purposes of judicial review, unless all
administrative remedies have been exhausted.
Subpart B_Death Benefit Claims
Sec. 32.11 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to claims made under the Act--
(a) At 42 U.S.C. 3796(a); or
(b) At 42 U.S.C. 3796c-1 or Public Law 107-37, with respect to a
public safety officer's death.
Sec. 32.12 Time for filing claim.
(a) Unless, for good cause shown, the Director extends the time for
filing, no claim shall be considered if it is filed with the PSOB Office
after the later of--
(1) Three years after the public safety officer's death; or
(2) One year after--
(i) A final determination of entitlement to receive, or of denial
of, the benefits, if any, described in Sec. 32.15(a)(1)(i); or
(ii) The receipt of the certification described in Sec.
32.15(a)(1)(ii).
(b) A claimant may file with his claim such supporting documentary,
electronic, video, or other nonphysical evidence and legal arguments as
he may wish to provide.
[73 FR 76532, Dec. 17, 2008]
Sec. 32.13 Definitions.
Adoptive parent of a public safety officer means any individual who
(not being a step-parent), as of the injury date, was the legally-
adoptive parent of the public safety officer, or otherwise was in a
child-parent relationship with him.
Beneficiary of a life insurance policy of a public safety officer--
An individual (living or deceased on the date of death of the public
safety officer) is designated as beneficiary of a life insurance policy
of such officer as of such date, only if the designation is, as of such
date, legal and valid (as a designation of beneficiary of a life
insurance policy) and unrevoked (by such officer or by operation of law)
or otherwise unterminated, except that--
(1) Any designation of an individual (including any designation of
the biological or adoptive offspring of such individual) made in
contemplation of such individual's marriage (or purported marriage) to
such officer shall be considered to be revoked by such officer as of
such date of death if the marriage (or purported marriage) did not take
place, unless preponderant evidence demonstrates that--
(i) It did not take place for reasons other than personal
differences between the officer and the individual; or
(ii) No such revocation was intended by the officer; and
(2) Any designation of a spouse (or purported spouse) made in
contemplation of or during such spouse's (or purported spouse's)
marriage (or purported marriage) to such officer (including any
designation of the biological or adoptive offspring of such spouse (or
purported spouse)) shall be considered to be revoked by such officer as
of such date of death if the spouse (or purported spouse) is divorced
from such officer after the date of designation and before such date of
death, unless preponderant evidence demonstrates that no such revocation
was intended by the officer.
Beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A)--An individual
(living or deceased on the date of death of the public safety officer)
is designated, by such officer (and as of such date), as beneficiary
under the Act, at 42 U.S.C. 3796(a)(4)(A), only if the designation is,
as of such date, legal and valid and unrevoked (by such officer or by
operation of law) or otherwise unterminated, except that--
(1) Any designation of an individual (including any designation of
the biological or adoptive offspring of such individual) made in
contemplation of such individual's marriage (or purported marriage) to
such officer shall be considered to be revoked by such officer as of
such date of death if the marriage (or purported marriage) did
[[Page 512]]
not take place, unless preponderant evidence demonstrates that--
(i) It did not take place for reasons other than personal
differences between the officer and the individual; or
(ii) No such revocation was intended by the officer; and
(2) Any designation of a spouse (or purported spouse) made in
contemplation of or during such spouse's (or purported spouse's)
marriage (or purported marriage) to such officer (including any
designation of the biological or adoptive offspring of such spouse (or
purported spouse)) shall be considered to be revoked by such officer as
of such date of death if the spouse (or purported spouse) is divorced
from such officer subsequent to the date of designation and before such
date of death, unless preponderant evidence demonstrates that no such
revocation was intended by the officer.
Cardiovascular disease includes heart attack and stroke.
Child-parent relationship means a relationship between a public
safety officer and another individual, in which the individual (other
than the officer's biological or legally-adoptive parent) has the role
of parent, as shown by convincing evidence.
Competent medical evidence to the contrary--The presumption raised
by the Act, at 42 U.S.C. 3796(k), is overcome by competent medical
evidence to the contrary, when evidence indicates to a degree of medical
probability that extrinsic circumstances, considered in combination (as
one circumstance) or alone, were a substantial factor in bringing the
heart attack or stroke about.
Designation on file--A designation of beneficiary under the Act, at
42 U.S.C. 3796(a)(4)(A), is on file with a public safety agency, -
organization, or -unit, only if it is deposited with the same by the
public safety officer making the designation, for it to maintain with
its personnel or similar records pertaining to him.
Direct and proximate result of a heart attack or stroke--A death
results directly and proximately from a heart attack or stroke if the
heart attack or stroke is a substantial factor in bringing it about.
Engagement in a situation involving law enforcement, fire
suppression, rescue, hazardous material response, emergency medical
services, prison security, disaster relief, or other emergency response
activity--A public safety officer is so engaged only when, within his
line of duty--
(1) He is in the course of actually--
(i) Engaging in law enforcement;
(ii) Suppressing fire;
(iii) Responding to a hazardous-material emergency;
(iv) Performing rescue activity;
(v) Providing emergency medical services;
(vi) Performing disaster relief activity; or
(vii) Otherwise engaging in emergency response activity; and
(2) The public agency he serves (or the relevant government) legally
recognizes him to have been in such course at the time of such
engagement (or, at a minimum, does not deny (or has not denied) him so
to have been).
Event includes occurrence, but does not include any engagement or
participation described in the Act, at 42 U.S.C. 3796(k)(1).
Excessive consumption of alcohol--An individual is an excessive
consumer of alcohol if he consumes alcohol in amounts commonly accepted
to be associated with substantially-increased risk of cardiovascular
disease.
Execution of a designation of beneficiary under the Act, at 42
U.S.C. 3796(a)(4)(A) means the legal and valid execution, by the public
safety officer, of a writing that, designating a beneficiary, expressly,
specifically, or unmistakably refers to--
(1) The Act (or the program it creates); or
(2) All the death benefits with respect to which such officer
lawfully could designate a beneficiary (if there be no writing that
satisfies paragraph (1) of this definition).
Execution of a life insurance policy means, with respect to a life
insurance policy, the legal and valid execution, by the individual whose
life is insured thereunder, of--
(1) The approved application for coverage;
(2) A designation of beneficiary; or
[[Page 513]]
(3) A designation of the mode of benefit.
Extrinsic circumstances means--
(1) An event or events; or
(2) An intentional risky behavior or intentional risky behaviors.
Life insurance policy on file--A life insurance policy is on file
with a public safety agency, -organization, or -unit, only if--
(1) It is issued through (or on behalf of) the same; or
(2) The original (or a copy) of one of the following is deposited
with the same by the public safety officer whose life is insured under
the policy, for it to maintain with its personnel or similar records
pertaining to him:
(i) The policy (itself);
(ii) The declarations page or -statement from the policy's issuer;
(iii) A certificate of insurance (for group policies);
(iv) Any instrument whose execution constitutes the execution of a
life insurance policy; or
(v) The substantial equivalent of any of the foregoing.
Medical probability--A fact is indicated to a degree of medical
probability, when, pursuant to a medical assessment, the fact is
indicated by a preponderance of such evidence as may be available.
Most recently executed designation of beneficiary under the Act, at
42 U.S.C. 3796(a)(4)(A) means the most recently executed such
designation that, as of the date of death of the public safety officer,
designates a beneficiary.
Most recently executed life insurance policy of a public safety
officer means the most recently executed policy insuring the life of a
public safety officer that, being legal and valid (as a life insurance
policy) upon its execution, as of the date of death of such officer--
(1) Designates a beneficiary; and
(2) Remains legally unrevoked (by such officer or by operation of
law) or otherwise unterminated.
Nonroutine strenuous physical activity means line of duty activity
that--
(1) Is not excluded by the Act, at 42 U.S.C. 3796(l);
(2) Is not performed as a matter of routine; and
(3) Entails an unusually-high level of physical exertion.
Nonroutine stressful or strenuous physical activity means nonroutine
stressful physical activity or nonroutine strenuous physical activity.
Nonroutine stressful physical activity means line of duty activity
that--
(1) Is not excluded by the Act, at 42 U.S.C. 3796(l);
(2) Is not performed as a matter of routine;
(3) Entails non-negligible physical exertion; and
(4) Occurs--
(i) With respect to a situation in which a public safety officer is
engaged, under circumstances that objectively and reasonably--
(A) Pose (or appear to pose) significant dangers, threats, or
hazards (or reasonably-foreseeable risks thereof), not faced by
similarly-situated members of the public in the ordinary course; and
(B) Provoke, cause, or occasion an unusually-high level of alarm,
fear, or anxiety; or
(ii) With respect to a training exercise in which a public safety
officer participates, under circumstances that objectively and
reasonably--
(A) Simulate in realistic fashion situations that pose significant
dangers, threats, or hazards; and
(B) Provoke, cause, or occasion an unusually-high level of alarm,
fear, or anxiety.
Parent of a public safety officer means a public safety officer's
surviving--
(1) Biological or adoptive parent whose parental rights have not
been terminated, as of the injury date; or
(2) Step-parent.
Participation in a training exercise--A public safety officer
participates (as a trainer or trainee) in a training exercise only when
actually taking formal part in a structured activity that itself is--
(1) Within an official training (or -fitness) program of his public
agency; and
(2) Mandatory, rated (i.e., officially tested, -graded, -judged, -
timed, etc.), or directly supervised, -proctored, or -monitored.
Public safety agency, -organization, or -unit means a department or
agency (or component thereof)--
(1) In which a public safety officer serves in an official capacity,
with or
[[Page 514]]
without compensation, as such an officer (of any kind but disaster
relief worker); or
(2) Of which a public safety officer is an employee, performing
official duties as described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C), as a disaster relief worker.
Risky behavior means--
(1) Failure (without reasonable justification or excuse) to
undertake treatment--
(i) Of any commonly-accepted cardiovascular-disease risk factor
associated with clinical values, where such risk factor is--
(A) Known (or should be known) to be present; and
(B) Present to a degree that substantially exceeds the minimum value
commonly accepted as indicating high risk;
(ii) Of any disease or condition commonly accepted to be associated
with substantially increased risk of cardiovascular disease, where such
associated disease or condition is known (or should be known) to be
present; or
(iii) Where a biological parent, -sibling, or -first-generation
offspring, is known to have (or have a history of) cardiovascular
disease;
(2) Smoking an average of more than one-half of a pack of cigarettes
(or its equivalent) per day;
(3) Excessive consumption of alcohol;
(4) Consumption of controlled substances included on Schedule I of
the drug control and enforcement laws (see 21 U.S.C. 812(a)), where such
consumption is commonly accepted to be associated with increased risk of
cardiovascular disease;
(5) Abuse of controlled substances included on Schedule II, III, IV,
or V of the drug control and enforcement laws (see 21 U.S.C. 812(a)),
where such abuse is commonly accepted to be associated with increased
risk of cardiovascular disease; or
(6) Any activity or action, specified in the Act, at 42 U.S.C.
3796a(1), (2), or (3), that is commonly accepted to be associated with
substantially increased risk of cardiovascular disease.
Routine--Neither of the following shall be dispositive in
determining whether an activity or action shall be understood to have
been performed as a matter of routine:
(1) Being generally described by the public agency as routine or
ordinary; or
(2) The frequency with which it may be performed.
Step-parent of a public safety officer means a current or former
spouse of the legally-adoptive or biological parent (living or deceased)
of a public safety officer conceived (or legally adopted) by that parent
before the marriage of the spouse and the parent, which spouse (not
being a legally-adoptive parent of the officer), as of the injury date,
(1) Received over half of his support from the officer;
(2) Had as his principal place of abode the home of the officer and
was a member of the officer's household; or
(3) Was in a child-parent relationship with the officer.
Undertaking of treatment--An individual undertakes treatment, when
he consults with a physician licensed to practice medicine in any
jurisdiction described in the Act, at 42 U.S.C. 3796b(8), and complies
substantially with his recommendations.
[61 FR 50213, Sept. 24, 1996, as amended at 73 FR 76832, Dec. 17, 2008]
Sec. 32.14 PSOB Office determination.
(a) Upon its approving or denying a claim, the PSOB Office shall
serve notice of the same upon the claimant (and upon any other claimant
who may have filed a claim with respect to the same public safety
officer). In the event of a denial, such notice shall--
(1) Specify the factual findings and legal conclusions that support
it; and
(2) Provide information as to requesting a Hearing Officer
determination.
(b) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination, by the PSOB
Office, of his filed claim, the Director may, at his discretion, deem
the same to be abandoned. Not less than thirty-three days prior thereto,
the PSOB Office shall serve the claimant with notice of the Director's
intention to exercise such discretion.
(c) In connection with its determination (pursuant to a filed claim)
of the existence of competent medical evidence to the contrary, the PSOB
Office
[[Page 515]]
shall serve the claimant with notice (indicating that he may file such
documentary, electronic, video, or other non-physical evidence (such as
medical-history records, as appropriate) and legal arguments in support
of his claim as he may wish to provide), where there is evidence before
it that affirmatively suggests that--
(1) The public safety officer actually knew or should have known
that he had cardio-vascular disease risk factors and appears to have
worsened or aggravated the same through his own intentional and risky
behavior (as opposed to where the evidence affirmatively suggests merely
that cardio-vascular disease risk factors were present); or
(2) It is more likely than not that a public safety officer's heart
attack or stroke was imminent.
[73 FR 76534, Dec. 17, 2008]
Sec. 32.15 Prerequisite certification.
(a) Except as provided in the Act, at 42 U.S.C. 3796c-1 or Public
Law 107-37, and unless, for good cause shown, the Director grants a
waiver, no claim shall be approved unless the following (which shall be
necessary, but not sufficient, for such approval) are filed with the
PSOB Office:
(1) Subject to paragraphs (b) and (d) of this section, a
certification from the public agency in which the public safety officer
served (as of the injury date) that he died as a direct and proximate
result of a line of duty injury, and either--
(i) That his survivors (listed by name, address, relationship to
him, and amount received) have received (or legally are entitled to
receive) the maximum death benefits legally payable by the agency with
respect to deaths of public safety officers of his kind, rank, and
tenure; or
(ii) Subject to paragraph (c) of this section, that the agency is
not legally authorized to pay--
(A) Any benefits described in paragraph (a)(1)(i) of this section,
to any person; or
(B) Any benefits described in paragraph (a)(1)(i) of this section,
to public safety officers of the kind, rank, and tenure described in
such paragraph;
(2) A copy of any findings or rulings made by any public agency that
relate to the officer's death; and
(3) A certification from the claimant listing every individual known
to him who is or might be the officer's child, spouse, or parent.
(b) The provisions of paragraphs (a)(1) and (d) of this section
shall also apply with respect to every public agency that legally is
authorized to pay death benefits with respect to the agency described in
that paragraph.
(c) No certification described in paragraph (a)(1)(ii) of this
section shall be deemed complete for purposes of this section unless
it--
(1) Lists every public agency (other than BJA) that legally is
authorized to pay death benefits with respect to the certifying agency;
or
(2) States that no public agency (other than BJA) legally is
authorized to pay death benefits with respect to the certifying agency.
(d) Subject to paragraphs (b) and (c) of this section, if the
Director finds that the conditions specified in the Act, at 42 U.S.C.
3796(k), are satisfied with respect to a particular public safety
officer's death, and that no circumstance specified in the Act, at 42
U.S.C. 3796a(1), (2), or (3), applies with respect thereto--
(1) The certification as to death, described in paragraph (a)(1) of
this section, shall not be required; and
(2) The certification as to benefits, described in paragraph
(a)(1)(ii) of this section, shall be deemed complete for purposes of
this section if it--
(i) Describes the public agency's understanding of the circumstances
(including such causes of which it may be aware) of the officer's death;
and
(ii) States that, in connection with deaths occurring under the
circumstances described in paragraph (d)(2)(i) of this section, the
public agency is not legally authorized to pay any benefits described in
paragraph (a)(1)(i) of this section.
[73 FR 76534, Dec. 17, 2008]
Sec. 32.16 Payment.
(a) No payment shall be made to (or on behalf of) more than one
individual, on the basis of being a public safety officer's parent as
his mother, or on that
[[Page 516]]
basis as his father. If more than one parent qualifies as the officer's
mother, or as his father, payment shall be made to the one with whom the
officer considered himself, as of the injury date, to have the closest
relationship, except that any biological or legally adoptive parent
whose parental rights have not been terminated as of the injury date
shall be presumed rebuttably to be such one.
(b) Any amount payable with respect to a minor or incompetent shall
be paid to his legal guardian, to be expended solely for the benefit of
such minor or incompetent.
(c) If more than one individual should qualify for payment--
(1) Under the Act, at 42 U.S.C. 3796(a)(4)(i), payment shall be made
to each of them in equal shares, except that, if the designation itself
should manifest a different distribution, payment shall be made to each
of them in shares in accordance with such distribution; or
(2) Under the Act, at 42 U.S.C. 3796(a)(4)(ii), payment shall be
made to each of them in equal shares.
[73 FR 76535, Dec. 17, 2008]
Sec. 32.17 Request for Hearing Officer determination.
In order to exhaust his administrative remedies, a claimant seeking
relief from the denial of his claim shall request a Hearing Officer
determination under subpart E of this part. Consistent with Sec. 32.8,
any denial that is not the subject of such a request shall constitute
the final agency determination.
Subpart C_Disability Benefit Claims
Sec. 32.21 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to claims made under the Act--
(a) At 42 U.S.C. 3796(b); or
(b) At 42 U.S.C. 3796c-1 or Public Law 107-37, with respect to a
public safety officer's disability.
Sec. 32.22 Time for filing claim.
(a) Unless, for good cause shown, the Director extends the time for
filing, no claim shall be considered if it is filed with the PSOB Office
after the later of--
(1) Three years after the injury date; or
(2) One year after--
(i) A final determination of entitlement to receive, or of denial
of, the benefits, if any, described in Sec. 32.25(a)(1)(i); or
(ii) The receipt of the certification described in Sec.
32.25(a)(1)(ii).
(b) A claimant may file with his claim such supporting documentary,
electronic, video, or other nonphysical evidence and legal arguments as
he may wish to provide.
[73 FR 76535, Dec. 17, 2008]
Sec. 32.23 Definitions.
Direct result of an injury--A disability results directly from an
injury if the injury is a substantial factor in bringing the disability
about.
Gainful work means full-or part-time activity that actually is
compensated or commonly is compensated.
Medical certainty--A fact exists to a degree of medical certainty,
when, pursuant to a medical assessment, the fact is demonstrated by
convincing evidence.
Permanently disabled--An individual is permanently disabled only if
there is a degree of medical certainty (given the current state of
medicine in the United States) that his disabled condition--
(1) Will progressively deteriorate or remain constant, over his
expected lifetime; or
(2) Otherwise has reached maximum medical improvement.
Product of an injury--Permanent and total disability is produced by
a catastrophic injury suffered as a direct and proximate result of a
personal injury if the disability is a direct result of the personal
injury.
Residual functional capacity means that which an individual still is
capable of doing, as shown by medical (and, as appropriate, vocational)
assessment, despite a disability.
Totally disabled--An individual is totally disabled only if there is
a degree of medical certainty (given the current state of medicine in
the United States) that his residual functional capacity is
[[Page 517]]
such that he cannot perform any gainful work.
Sec. 32.24 PSOB Office determination.
(a) Upon its approving or denying a claim, the PSOB Office shall
serve notice of the same upon the claimant. In the event of a denial,
such notice shall--
(1) Specify the factual findings and legal conclusions that support
it; and
(2) Provide information as to--
(i) Requesting a Hearing Officer determination; or
(ii) As applicable, moving to reconsider a negative disability
finding.
(b) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination of his filed
claim, the Director may, at his discretion, deem the same to be
abandoned. Not less than thirty-three days prior thereto, the PSOB
Office shall serve the claimant with notice of the Director's intention
to exercise such discretion.
Sec. 32.25 Prerequisite certification.
(a) Except as provided in the Act, at 42 U.S.C. 3796c-1 or Public
Law 107-37, and unless, for good cause shown, the Director grants a
waiver, no claim shall be approved unless the following (which shall be
necessary, but not sufficient, for such approval) are filed with the
PSOB Office:
(1) Subject to paragraph (b) of this section, a certification from
the public agency in which the public safety officer served (as of the
injury date) that he was permanently and totally disabled as a direct
result of a line of duty injury, and either--
(i) That he has received (or legally is entitled to receive) the
maximum disability benefits (including workers' compensation) legally
payable by the agency with respect to disabled public safety officers of
his kind, rank, and tenure; or
(ii) Subject to paragraph (c) of this section, that the agency is
not legally authorized to pay--
(A) Any benefits described in paragraph (a)(1)(i) of this section,
to any person; or
(B) Any benefits described in paragraph (a)(1)(i) of this section,
to public safety officers of the kind, rank, and tenure described in
such paragraph; and
(2) A copy of--
(i) Each State, local, and federal income tax return filed by or on
behalf of the public safety officer from the year before the injury date
to the date of determination by the PSOB determining official; and
(ii) Any rulings made by any public agency that relate to the
claimed disability.
(b) The provisions of paragraph (a)(1) of this section shall also
apply with respect to every public agency that legally is authorized to
pay disability benefits with respect to the agency described in that
paragraph.
(c) No certification described in paragraph (a)(1)(ii) of this
section shall be deemed complete unless it--
(1) Lists every public agency (other than BJA) that legally is
authorized to pay disability benefits with respect to the certifying
agency; or
(2) States that no public agency (other than BJA) legally is
authorized to pay disability benefits with respect to the certifying
agency.
Sec. 32.26 Payment.
The amount payable on a claim shall be the amount payable, as of the
injury date, pursuant to the Act, at 42 U.S.C. 3796(b).
Sec. 32.27 Motion for reconsideration of negative disability finding.
A claimant whose claim is denied in whole or in part on the ground
that he has not shown that his claimed disability is total and permanent
may move for reconsideration, under Sec. 32.28, of the specific finding
as to the total and permanent character of the claimed disability (in
lieu of his requesting a Hearing Officer determination with respect to
the same).
Sec. 32.28 Reconsideration of negative disability finding.
(a) Unless, for good cause shown, the Director extends the time for
filing, no negative disability finding described in Sec. 32.27 shall be
reconsidered if the motion under that section is filed with the PSOB
Office later than thirty-three days after the service of notice of the
denial.
[[Page 518]]
(b) Notwithstanding any other provision of this section, no negative
disability finding described in Sec. 32.27 shall be reconsidered--
(1) If or after such reconsideration is rendered moot (e.g., by the
final denial of the claim on other grounds, without possibility of
further administrative or judicial recourse); or
(2) If a request for a Hearing Officer determination has been filed
in timely fashion with respect to such finding.
(c) Unless, for good cause shown, the Director grants a waiver, upon
the making of a motion under Sec. 32.27, reconsideration of the
negative disability finding described in that section shall be stayed
for three years. Upon the conclusion of the stay, the claimant shall
have not more than six years to file evidence with the PSOB Office in
support of his claimed disability.
(d) Upon a claimant's failure (without reasonable justification or
excuse) to file in timely fashion evidence pursuant to paragraph (c) of
this section, the Director may, at his discretion, deem the motion for
reconsideration to be abandoned, as though never filed. Not less than
thirty-three days prior thereto, the PSOB Office shall serve the
claimant with notice of the Director's intention to exercise such
discretion.
(e) No negative disability finding described in Sec. 32.27 shall be
reversed unless a copy (which shall be necessary, but not sufficient,
for such reversal) of each federal, State, and local income tax return
filed by or on behalf of the claimant from the year before the date of
the motion for reconsideration under that section to the date of
reversal is filed with the PSOB Office.
(f) Upon its affirming or reversing a negative disability finding
described in Sec. 32.27, the PSOB Office shall serve notice of the same
upon the claimant. In the event of an affirmance, such notice shall--
(1) Specify the factual findings and legal conclusions that support
it; and
(2) Provide information as to requesting a Hearing Officer
determination of the disability finding.
Sec. 32.29 Request for Hearing Officer determination.
(a) In order to exhaust his administrative remedies, a claimant
seeking relief from the denial of his claim shall request a Hearing
Officer determination under subpart E of this part--
(1) Of--
(i) His entire claim, if he has not moved for reconsideration of a
negative disability finding under Sec. 32.27; or
(ii) Consistent with Sec. 32.42(c), the grounds (if any) of the
denial that are not the subject of such motion, if he has moved for
reconsideration of a negative disability finding under Sec. 32.27; and
(2) Of a negative disability finding that is affirmed pursuant to
his motion for reconsideration under Sec. 32.27.
(b) Consistent with Sec. 32.8, the following shall constitute the
final agency determination:
(1) Any denial not described in Sec. 32.27 that is not the subject
of a request for a Hearing Officer determination under paragraph
(a)(1)(i) of this section;
(2) Any denial described in Sec. 32.27 that is not the subject of a
request for a Hearing Officer determination under paragraph (a)(1)(ii)
of this section, unless the negative disability finding is the subject
of a motion for reconsideration; and
(3) Any affirmance that is not the subject of a request for a
Hearing Officer determination under paragraph (a)(2) of this section.
[73 FR 76535, Dec. 17, 2008]
Subpart D_Educational Assistance Benefit Claims
Sec. 32.31 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to claims (i.e., threshold claims and financial claims) made
under the Act, at 42 U.S.C. 3796d-1.
Sec. 32.32 Time for filing claim.
(a) Subject to the Act, at 42 U.S.C. 3796d-1(c), and to paragraph
(b) of this section, a claim may be filed with the PSOB Office at any
time after the injury date.
(b) Unless, for good cause shown, the Director grants a waiver, no
financial
[[Page 519]]
claim may be filed with the PSOB Office, with respect to a grading
period that commences more than six months after the date of filing.
(c) A claimant may file with his claim such supporting documentary,
electronic, video, or other nonphysical evidence and legal arguments as
he may wish to provide.
[73 FR 76535, Dec. 17, 2008]
Sec. 32.33 Definitions.
Application means claim (i.e., a threshold claim or a financial
claim).
Assistance means financial assistance.
Child of an eligible public safety officer means the child of a
public safety officer, which officer is an eligible public safety
officer.
Dependent--An individual is a dependent of an eligible public safety
officer, if--
(1) Being a child of the officer, the individual--
(i) Was claimed properly as the officer's dependent (within the
meaning of the Internal Revenue Code, at 26 U.S.C. 152) on the officer's
federal income-tax return (or could have been claimed if such a return
had been required by law)--
(A) For the tax year of (or immediately preceding) either the injury
date or the date of the officer's death (with respect to a claim by
virtue of such death); or
(B) For the relevant tax year (with respect to a claim by virtue of
the officer's disability); or
(ii) Is the officer's posthumous child; or
(2) Being a spouse of the officer at the time of the officer's death
or on the date of the officer's totally and permanently disabling
injury, the individual received over half of his support from the
officer (or had as his principal place of abode the home of the officer
and was a member of the officer's household)--
(i) As of either the injury date or the date of the officer's death
(with respect to a claim by virtue of such death); or
(ii) In the relevant tax year (with respect to a claim by virtue of
the officer's disability).
Educational assistance benefits means benefits specifically to
assist in paying educational expenses.
Educational expenses means such of the following as may be in
furtherance of the educational, professional, or vocational objective of
the program of education that forms the basis of a financial claim:
(1) Tuition and fees, as described in 20 U.S.C. 1087ll(1) (higher
education assistance);
(2) Reasonable expenses for--
(i) Room and board (if incurred for attendance on at least a half-
time basis);
(ii) Books;
(iii) Computer equipment;
(iv) Supplies;
(v) Transportation; and
(3) For attendance on at least a three-quarter-time basis, a
standard allowance for miscellaneous personal expenses that is the
greater of--
(i) The allowance for such expenses, as established by the eligible
educational institution for purposes of financial aid; or
(ii) $200.00 per month.
Eligible dependent means an individual who--
(1) Is a dependent of an eligible public safety officer;
(2) Attends a program of education, as described in the Act, at 42
U.S.C. 3796d-1(a)(1); and
(3) Is otherwise eligible to receive financial assistance pursuant
to the Act or this subpart.
Eligible educational expenses means a claimant's educational
expenses, reduced by the amount of educational assistance benefits from
non-governmental organizations that the claimant has received or will
receive.
Eligible public safety officer means a public safety officer--
(1) With respect to whose death, benefits under subpart B of this
part properly have been paid; or
(2) With respect to whose disability, benefits under subpart C of
this part properly--
(i) Have been paid; or
(ii) Would have been paid, but for the operation of paragraph (b)(1)
of Sec. 32.6.
Financial assistance means financial assistance, as described in the
Act, at 42 U.S.C. 3796d-1.
[[Page 520]]
Financial claim means a request for financial assistance, with
respect to attendance at a program of education, for a particular
grading period.
Financial need--An individual is in financial need for a particular
grading period to the extent that the amount of his eligible educational
expenses for that period exceed the sum of--
(1) The amount of his educational assistance benefits as described
in the Act, at 42 U.S.C. 3796d-1(a)(3)(A); and
(2) His expected family contribution calculated pursuant to 20
U.S.C. 1087nn (higher education assistance).
Funds means financial assistance.
Grading period means the period of attendance (e.g., a semester, a
trimester, a quarter) in a program of education, after (or with respect
to) which period grades are assigned, units of credit are awarded, or
courses are considered completed, as determined by the eligible
educational institution.
Prospective financial claim means a financial claim with respect to
a grading period that ends after the claim is filed.
Public safety agency means a public agency--
(1) In which a public safety officer serves in an official capacity,
with or without compensation, as such an officer (of any kind but
disaster relief worker); or
(2) Of which a public safety officer is an employee, performing
official duties as described in the Act, at 42 U.S.C. 3796b(9)(B) or
(C), as a disaster relief worker.
Retroactive financial claim means a financial claim with respect to
a grading period that ends before the claim is filed.
Spouse of an eligible public safety officer at the time of the
officer's death or on the date of a totally and permanently disabling
injury means the spouse of a public safety officer (which officer is an
eligible public safety officer) as of--
(1) The date of the officer's death (with respect to a claim by
virtue of such death); or
(2) The injury date (with respect to a claim by virtue of the
officer's disability).
Tax Year--With respect to a claim by virtue of an eligible public
safety officer's disability, the relevant tax year is--
(1) The tax year of (or immediately preceding) the injury date;
(2) Any tax year during which the program of education that forms
the basis of the claim is attended or is pursued;
(3) The tax year immediately preceding the date on which the program
of education that forms the basis of the claim commenced (or is to
commence); or
(4) The tax year of (or immediately preceding) the officer's death,
where the program of education that forms the basis of the claim
commenced (or is to commence) after the date of such death.
Threshold claim means a request for determination of general
eligibility to receive financial assistance.
Sec. 32.34 PSOB Office determination.
(a) In the event of the PSOB Office's denying a claim, the notice it
serves upon the claimant shall--
(1) Specify the factual findings and legal conclusions that support
the denial; and
(2) Provide information as to requesting a Hearing Officer
determination.
(b) No financial claim shall be approved, unless the claimant's
threshold claim has been approved.
(c) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination of his filed
claim, the Director may, at his discretion, deem the same to be
abandoned. Not less than thirty-three days prior thereto, the PSOB
Office shall serve the claimant with notice of the Director's intention
to exercise such discretion.
Sec. 32.35 Disqualification.
No claim shall be approved if the claimant is--
(a) In default on any student loan obtained under 20 U.S.C. 1091
(higher education assistance), unless, for good cause shown, the
Director grants a waiver; or
(b) Subject to a denial of federal benefits under 21 U.S.C. 862
(drug traffickers and possessors).
[[Page 521]]
Sec. 32.36 Payment and repayment.
(a) The computation described in the Act, at 42 U.S.C. 3796d-
1(a)(2), shall be based on a certification from the eligible educational
institution as to the claimant's full-, three-quarter-, half-, or less-
than-half-time student status, according to such institution's own
academic standards and practices.
(b) No payment shall be made with respect to any grading period that
ended before the injury date.
(c) With respect to any financial claim, no amount shall be payable
that exceeds the amount of the eligible educational expenses that form
the basis of the claim.
(d) In the event that appropriations for a fiscal year are
insufficient for full payment of all approved or anticipated financial
claims, the following payments shall be made--
(1) The amounts payable on approved prospective financial claims
from claimants in financial need, to the extent of such need (if
sufficient funds be available therefor), in the order the claims are
approved;
(2) All other amounts payable on approved prospective financial
claims (in the order the claims are approved), if sufficient funds be
available therefor--
(i) After payment of all amounts payable pursuant to paragraph
(d)(1) of this section; and
(ii) After making allowance for anticipated amounts payable in the
fiscal year pursuant to paragraph (d)(1) of this section; and
(3) The amounts payable on approved retroactive financial claims (in
the order the claims are approved), if sufficient funds be available
therefor--
(i) After payment of all amounts payable pursuant to paragraphs
(d)(1) and (2) of this section; and
(ii) After making allowance for anticipated amounts payable in the
fiscal year, pursuant to paragraphs (d)(1) and (2) of this section.
(e) In the event that, at the conclusion of a fiscal year, any
amounts remain payable on an approved financial claim, such amounts
shall remain payable thereafter until paid (when appropriations be
sufficient therefor).
(f) In the event that any amounts remain payable on an approved
prospective financial claim after the end of the grading period that
forms its basis, such claim shall be deemed an approved retroactive
financial claim for purposes of paragraph (d) of this section.
(g) No payment shall be made to (or on behalf of) any individual, on
the basis of being a particular living public safety officer's spouse,
unless the individual is the officer's spouse on the date of payment.
(h) Unless, for good cause shown, the Director grants a full or
partial waiver, a payee shall repay the amount paid to him (or on his
behalf) pursuant to a prospective financial claim if, during the grading
period that forms its basis--
(1) He fails to maintain satisfactory progress under 20 U.S.C.
1091(c) (higher education assistance);
(2) He fails to maintain the enrollment status described in his
claim; or
(3) By his acts or omissions, he is or becomes ineligible for
financial assistance.
Sec. 32.37 Request for Hearing Officer determination.
In order to exhaust his administrative remedies, a claimant seeking
relief from the denial of his claim shall request a Hearing Officer
determination under subpart E of this part. Consistent with Sec. 32.8,
any denial that is not the subject of such a request shall constitute
the final agency determination.
Subpart E_Hearing Officer Determinations
Sec. 32.41 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to requests for Hearing Officer determination of claims
denied under subpart B, C (including affirmances of negative disability
findings described in Sec. 32.27), or D of this part, and of claims
remanded (or matters referred) under Sec. 32.54(c).
[73 FR 76535, Dec. 17, 2008]
Sec. 32.42 Time for filing request for determination.
(a) Subject to paragraph (c) of this section, and unless, for good
cause
[[Page 522]]
shown, the Director extends the time for filing, no claim shall be
determined if the request therefor is filed with the PSOB Office later
than thirty-three days after the service of notice of--
(1) The denial (under subpart B, C (except as may be provided in
paragraph (a)(2) of this section), or D of this part) of a claim; or
(2) The affirmance (under subpart C of this part) of a negative
disability finding described in Sec. 32.27.
(b) A claimant may file with his request for a Hearing Officer
determination such supporting documentary, electronic, video, or other
non-physical evidence and legal arguments as he may wish to provide.
(c) The timely filing of a motion for reconsideration under Sec.
32.28(a) shall be deemed to constitute a timely filing, under paragraph
(a) of this section, of a request for determination with respect to any
grounds described in Sec. 32.29(a)(1)(ii) that may be applicable.
[73 FR 76535, Dec. 17, 2008]
Sec. 32.43 Appointment and assignment of Hearing Officers.
(a) Pursuant to 42 U.S.C. 3787 (employment and authority of hearing
officers), Hearing Officers may be appointed from time to time by the
Director, to remain on the roster of such Officers at his pleasure.
(b) Upon the filing of a request for a Hearing Officer determination
(or upon remand or referral), the PSOB Office shall assign the claim to
a Hearing Officer on the roster; the PSOB Office may assign a particular
claim to a specific Hearing Officer if it judges, in its discretion,
that his experience or expertise suit him especially for it.
(c) Upon its making the assignment described in paragraph (b) of
this section, the PSOB Office shall serve notice of the same upon the
claimant, with an indication that any evidence or legal argument he
wishes to provide is to be filed simultaneously with the PSOB Office and
the Hearing Officer.
(d) With respect to an assignment described in paragraph (b) of this
section, the Hearing Officer's consideration shall be--
(1) De novo (unless the Director should expressly prescribe
otherwise, with respect to a particular remand or referral), rather than
in review of the findings, determinations, affirmances, reversals,
assignments, authorizations, decisions, judgments, rulings, or other
actions of the PSOB Office; and
(2) Consistent with subpart B, C, or D of this part, as applicable.
(e) OJP's General Counsel shall provide advice to the Hearing
Officer as to all questions of law relating to any matter assigned
pursuant to paragraph (b) of this section.
[73 FR 76535, Dec. 17, 2008]
Sec. 32.44 Hearing Officer determination.
(a) Upon his determining a claim, the Hearing Officer shall file
notice of the same simultaneously with the Director (for his review
under subpart F of this part (in the event of approval)), the PSOB
Office, and OJP's General Counsel, which notice shall specify the
factual findings and legal conclusions that support it.
(b) Upon a Hearing Officer's denying a claim, the PSOB Office shall
serve notice of the same upon the claimant (and upon any other claimant
who may have filed a claim with respect to the same public safety
officer), which notice shall--
(1) Specify the Hearing Officer's factual findings and legal
conclusions that support it; and
(2) Provide information as to Director appeals.
(c) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination of his claim
pursuant to his filed request therefor, the Director may, at his
discretion, deem the request to be abandoned, as though never filed. Not
less than thirty-three days prior thereto, the PSOB Office shall serve
the claimant with notice of the Director's intention to exercise such
discretion.
Sec. 32.45 Hearings.
(a) Except with respect to a remand or referral, at the election of
a claimant under subpart B or C of this part, the Hearing Officer shall
hold a hearing, at a location agreeable to the claimant and the Officer
(or, otherwise,
[[Page 523]]
at a location ruled by the Hearing Officer to be suitable), for the sole
purposes of obtaining, consistent with Sec. 32.5(c),
(1) Evidence from the claimant and his fact or expert witnesses; and
(2) Such other evidence as the Hearing Officer, at his discretion,
may rule to be necessary or useful.
(b) Unless, for good cause shown, the Director extends the time for
filing, no election under paragraph (a) of this section shall be honored
if it is filed with the PSOB Office later than ninety days after service
of the notice described in Sec. 32.43(c).
(c) Not less than seven days prior to any hearing, the claimant
shall file simultaneously with the PSOB Office and the Hearing Officer a
list of all expected fact or expert witnesses and a brief summary of the
evidence each witness is expected to provide.
(d) At any hearing, the Hearing Officer--
(1) May exclude any evidence whose probative value is substantially
outweighed by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence; and
(2) Shall exclude witnesses (other than the claimant, or any person
whose presence is shown by the claimant to be essential to the
presentation of his claim), so that they cannot hear the testimony of
other witnesses.
(e) Each hearing shall be recorded, and the original of the complete
record or transcript thereof shall be made a part of the claim file.
(f) Unless, for good cause shown, the Director grants a waiver, a
claimant's failure to appear at a hearing (in person or through a
representative) shall constitute a withdrawal of his election under
paragraph (a) of this section.
(g) Upon a claimant's failure to pursue in timely fashion his filed
election under paragraph (a) of this section, the Director may, at his
discretion, deem the same to be abandoned. Not less than thirty-three
days prior thereto, the PSOB Office shall serve the claimant with notice
of the Director's intention to exercise such discretion.
[73 FR 76536, Dec. 17, 2008]
Sec. 32.46 Director appeal.
(a) In order to exhaust his administrative remedies, a claimant
seeking relief from the denial of his claim shall appeal to the Director
under subpart F of this part.
(b) Consistent with Sec. 32.8, any claim denial that is not
appealed to the Director under paragraph (a) of this section shall
constitute the final agency determination, unless the denial is reviewed
otherwise under subpart F of this part.
Subpart F_Director Appeals and Reviews
Sec. 32.51 Scope of subpart.
Consistent with Sec. 32.1, this subpart contains provisions
applicable to Director appeals and reviews of claim approvals and
denials made under subpart E of this part, and reviews of claim
approvals under the Act, at 42 U.S.C. 3796c-1 or Public Law 107-37.
Sec. 32.52 Time for filing Director appeal.
(a) Unless, for good cause shown, the Director extends the time for
filing, no Director appeal shall be considered if it is filed with the
PSOB Office later than thirty-three days after the service of notice of
the denial (under subpart E of this part) of a claim.
(b) A claimant may file with his Director appeal such supporting
documentary, electronic, video, or other nonphysical evidence and legal
arguments as he may wish to provide.
[73 FR 76536, Dec. 17, 2008]
Sec. 32.53 Review.
(a) Upon the filing of the approval (under subpart E of this part)
of a claim, the Director shall review the same.
(b) The Director may review--
(1) Any claim denial made under subpart E of this part; and
(2) Any claim approval made under the Act, at 42 U.S.C. 3796c-1 or
Public Law 107-37.
(c) Unless the Director judges that it would be unnecessary, the
PSOB Office shall serve notice upon the claimant (and upon any other
claimant who may have filed a claim with respect to the
[[Page 524]]
same public safety officer) of the initiation of a review under
paragraph (a) or (b) of this section. Unless the Director judges that it
would be unnecessary, such notice shall--
(1) Indicate the principal factual findings or legal conclusions at
issue; and
(2) Offer a reasonable opportunity for filing of evidence or legal
arguments.
Sec. 32.54 Director determination.
(a) Upon the Director's approving or denying a claim, the PSOB
Office shall serve notice of the same simultaneously upon the claimant
(and upon any other claimant who may have filed a claim with respect to
the same public safety officer), and upon any Hearing Officer who made a
determination with respect to the claim. In the event of a denial, such
notice shall--
(1) Specify the factual findings and legal conclusions that support
it; and
(2) Provide information as to judicial appeals (for the claimant or
claimants).
(b) Upon a claimant's failure (without reasonable justification or
excuse) to pursue in timely fashion the determination of his claim
pursuant to his filed Director appeal, the Director may, at his
discretion, deem the same to be abandoned, as though never filed. Not
less than thirty-three days prior thereto, the PSOB Office shall serve
the claimant with notice of the Director's intention to exercise such
discretion.
(c) With respect to any claim before him, the Director, as
appropriate, may--
(1) Remand the same to the PSOB Office, or to a Hearing Officer;
(2) Vacate any related determination under this part; or
(3) Refer any related matters to a Hearing Officer (as a special
master), to recommend factual findings and dispositions in connection
therewith.
[73 FR 76536, Dec. 17, 2008]
Sec. 32.55 Judicial appeal.
(a) Consistent with Sec. 32.8, any approval or denial described in
Sec. 32.54(a) shall constitute the final agency determination.
(b) A claimant seeking relief from the denial of his claim may
appeal judicially pursuant to the Act, at 42 U.S.C. 3796c-2.
[73 FR 76536, Dec. 17, 2008]