The Office of Justice Programsí Implementation of the Hometown Heroes Survivors Benefits Act of 2003

Evaluation and Inspections Report I-2008-005
March 2008
Office of the Inspector General


Appendix VIII
The Office of Justice Programsí Response

U. S. Department of Justice
Office of Justice Programs
Office of Assistant Attorney General
Washington, D.C. 20531

March 18, 2008


MEMORANDUM TO: Glenn A. Fine
Inspector General
United States Department of Justice

THROUGH: Paul A. Price
Assistant Inspector General
   for Evaluation and Inspections

  Signature of Betty McGarry for:

FROM: Jeffrey L. Sedgwick
Acting Assistant Attorney General

SUBJECT: Response to Office of the Inspector General's Draft Report,
The Office of Justice Programs' Implementation of the
Hometown Heroes Survivors Benefits Act of 2003


This memorandum responds to the Draft Report of the Office of the Inspector General (the "OIG") issued on March 5, 2008 (the "OIG Draft Report"), regarding the review of the implementation by the Bureau of Justice Assistance ("BJA") (a component of the Office of Justice Programs ("OJP")) of the Hometown Heroes Survivors Benefits Act of2003 (the "HHA"), an amendment to the Public Safety Officers' Benefits ("PSOB") Act of 1976. The OIG's May 30, 2007, memorandum to Assistant Attorney General Regina B. Schofield, notifying OJP of the initiation of this review, states that its purpose was "to examine how BJA processes benefits claims from families of deceased public safety officers who died of heart attack and strokes."

Analysis of the OIG Review and Draft Report

The primary focus of the OIG's review was the processing of what it calls "Hometown Heroes Act claims”52 from September 11, 2006 (the effective date of the current PSOB implementing regulations), through November 29,2007. Overall, the DIG Draft Report cites three factors as contributing to the length of time required to process these claims: (1) submission (by claimants, or on their behalf) of insufficient supporting evidence and information in nearly all of the claims; (2) the length of time for legal reviews by OJP's Office of the General Counsel ("OGC"); and (3) the delay occasioned by difficulties in securing pathologists to review the claims, as a result of the unexpected unavailability of the Armed Forces Institute of Pathology to review almost any of the claims. The OIG Draft Report also concludes that, although "many of the denials met the intent of the [HHA,]"53 OJP "narrowly interpreted the Act for at least 19 of the claims denied during the first year."54

OJP agrees that lack of information and supporting evidence from claimants (or on their behalf) contributed significantly to delays in processing. Overall, the DIG Draft Report accurately describes the problem and many of its apparent causes, and notes many steps that have been (or are soon to be) taken by DJP to address the problem of incomplete submissions by claimants and to reduce claimants' response times to requests for additional information or evidence. OJP will continue taking these and other appropriate actions to address this problem.

OJP also agrees that the delayed medical reviews affected the length of time required to process many of the cases processed during the OIG review period. DJP is pleased that the problem occasioned by the sudden and unanticipated unavailability of the Armed Forces Institute of Pathology to provide medical advice on almost any further claims, and by the normal federal procurement process thereafter to procure other pathologists' services, has been resolved. As the OIG Draft Report correctly notes, the services of expert contract pathologists were procured in September 2007.

OJP disagrees, however, with the OIG Draft Report's estimates of how much time actually was spent in legal review of the cases, and with the Report's finding that any undue length in the processing of these claims largely was the result of such legal review.

It ought to be neither surprising nor a negative thing that the General Counsel's Office should invest time as needed in conducting its review or in "looking for every possible way to approve a claim."55 The OIG Draft Report generally does not account for the reality that, due to inherent legal and factual complexities, some PSOB claims may take what might appear on the outside a circuitous and consequently unnecessary route,'56 when (in fact) every stop along the way is driven by substantive legal considerations. Because of the particular requirements articulated in the HHA, claims that implicate its provisions well may be far more complicated than claims involving actual line-of-duty injuries. Determination of any PSOB claim involves a constant interplay between the PSOB Office (the fact gatherer) and OGC. Of necessity, this interplay is not a linear process that may be analyzed as a federal grant process might be. Review of PSOB claims require synthesis and analysis of often-complex factual, legal, and medical information; review and critical evaluation of the initial determination as drafted by the PSOB Office (sometimes requiring multiple edits, in accordance with the specific facts uncovered or revealed over the course of the claim process); careful attention to consistency with the PSOB/HHA provisions and prior claims to ensure that decisions are made in a manner that puts fairness to the claimant as a paramount consideration, are consonant with agency precedent, are supported by sufficient evidence, and are not made in an arbitrary and capricious fashion.57 Certainly, this is especially true when the agency is determining cases with a new provision of law, containing many terms unknown to the program before the enactment of that provision. But this, unfortunately, is nowhere addressed in the OIG Draft Report."58

Calculation of time for OGC legal review

As a general matter, the validity of the information used in the OIG Draft Report to calculate the "Number of Days OGC Spent Reviewing Claims" (so described in the table on p.23) is questionable. One clear indication of the incomplete nature of the data is that, despite the OIG Draft Report's discussion of 112 Hometown Heroes determinations, only 95 claims are represented on the bar chart. The chart thus represents only 85% of the claims ostensibly at issue, and the OIG Draft Report itself indicates that the data are incomplete regarding that 85% because (as discussed below) there is no data field that records the dates these claims went into and out of OGC-- ­which dates are precisely what the bar chart purports to represent.

The Report estimates that the "median" time OGC took to review a claim is 50 days, and that "some reviews [took] more than 180 days."59 11"> Later, the Report states that "OGC took, on average, 50 days to review a claim; however these reviews ranged from under 10 days to over 200 days."60 The Report finds that claims processing was "slow," but surely what would constitute "slow" processing depends on the standard that serves as the basis of measurement. The only applicable directive that actually does set a standard (i.e., the Attorney General's memorandum of May 13, 2004 (referred to on p. 26, note 36, of the OIG Draft Report)) carefully directs a 90-day turnaround time for claims processing by OJP, but only after "receiving all necessary information... identifying all potential beneficiaries." Nothing in the OIG Draft Report suggests that this deadline was missed with respect to any "Hometown Heroes Act claim."

The OIG Draft Report derives its estimates of the amount of time that claims supposedly were under legal review, based significantly on "the database that records activity on claims."61 This is puzzling, as the Report itself concedes that "[t]he PSOB Office database does not contain separate data fields to record dates that claims are sent to and received from the OGC."62 Given the utter absence of any such record of dates, the OIG attempted to "estimate[]" the time period by "extract[ing]" the dates "from the 'notes' section of the database" even though "[t]he 'notes' section did not have dates for all the completed claims,"63 and even "[]though the notes do not always record every action on a claim."64 It is difficult to see how, on this record (where the data not only are invalid, but are expressly acknowledged to be so), even a plausibly accurate "estimate[]" could be made of the "time the case file was in OGC for review,"65 especially as "OGC staff attorneys" do not "use the PSOB Office's new case management system"66 (i.e., the database), which thus contains no case-logging information whatsoever from the General Counsel's Office.67

Allegation of unwarranted length of time in processing

The OIG Draft Report attributes allegedly slow review by the Office of the General Counsel to "certain inefficient internal practices."68 such as the assignment of claims "across numerous attorneys."69 Based on anecdotal assertions, the OIG Draft Report concludes that such assignment led to requests for "additional documentation and evidence that was not necessary for making a determination."70 In addition, the Report opines that OGC's lack of a "formal method of recording information requests in the case files" caused the PSOB Office to receive "duplicative information requests from OGC attorneys" and "numerous inconsistent edits" to be made to draft determinations, adding time to the review process.71 Lastly, the Report notes that OGC has no specific "timeliness standards" for its attorneys' reviews of PSOB claims.

These allegations relating to assignment, editing, and information requests have little or no factual basis; and the OIG Draft Report does not show how these allegations (even if true, which they are not) led to any delays in processing.

The OGC signature lines on the PSOB Office claim determinations reveal that nearly 75% of the "Hometown Heroes Act claims" processed as of November 29, 2007, were reviewed by one or the other of two OGC attorneys, and that four attorneys on staff were responsible for processing 85% of the claims. The remaining 15% were signed by one of six attorneys.72 Whatever else they may indicate, the data simply do not support a finding of assignment of claims "across numerous attorneys."73 And still less do they show that the attorney assignments (whatever they were) occasioned any delays in processing.

Nor does anything in the OIG Draft Report adequately support a conclusion that, "in some cases," OGC staff attorneys requested "additional documents [that] were not necessary for making a determination on whether the claim was compensable under the Hometown Heroes Act. For example, documents to establish potential beneficiaries (e.g., birth certificates, marriage license, or divorce decrees) are not needed unless the claim is determined to be compensable.74 It goes without saying that the denial of a claim is a legally-significant event from which appeal rights may flow pursuant to 28 C.F.R. §§ 32.8,.17, and.55. For this reason, properly "identifying all potential beneficiaries" (to use the imperative words of the Attorney General memorandum of May 13,2004, referred to above), so as to advise them of their legal rights,75 is legally necessary, and to have done otherwise would have been legally irresponsible. In short, what may be "necessary" is a legal determination, not a programmatic one, and what may be necessary accordingly will change as interpretations of the law change. Thus, information necessary in certain cases prior to October 2, 2007 (when certain legal presumptions relating to the term "nonroutine" formally were applied to the PSOB program by memorandum of the BJA Director), became legally unnecessary thereafter.76 Suffice it here to state that OJP is unaware of instances (except, perhaps, isolated ones) where information or evidence legally "unnecessary" at the time requested may have asked for by any attorney in the Office of the General Counsel in connection with any claims under OIG review.77

The final suggestion (that the OGC attorneys made "inconsistent edits"­ consisting of unnecessary stylistic changes and frequent changes to standard language) similarly is unsupported by data. The Report correctly quotes the Deputy General Counsel as stating "that she had directed the attorneys to cease editing based on writing style and to focus only on editing that affected the legal issues relating to the claim,"78 but this direction was given literally years before September 2006, when the first "Hometown Heroes Act claims" were received in the General Counsel's Office for review. Thus, OJP disagrees with the assertion that this particular factor possibly could have affected the processing time for any such claim.79

Additional Clarifications

In addition to the foregoing, OJP offers the following comments on certain statements or references in the OIG Draft Report that appear to be mistaken or incomplete.

Response to Recommendations

The OIG Draft Report contains three recommendations. For ease of reference, each of the three recommendations is restated below in bolded text, followed by OJP's response to the recommendation.

  1. The BJA should finalize and issue the "Attorney General's Guide to the Hometown Heroes Act."

  2. The BJA will work with the Department of Justice to finalize "The Attorney General's Guide to the Hometown Heroes Act."

  3. OJP OGC staff attorneys should be required to use the PSOB Office's new case management system to record their case notes, requests for documentation, and other case-related communications with the PSOB Office.

  4. The PSOB Office's case management system, which is designed to record certain activities related to PSOB cases, still is under development. When the system is sufficiently developed and operational such as to allow the participation of the Office of the General Counsel and to capture edits and changes to PSOB Office­ and Director determinations, the staff attorneys from the Office of the General Counsel, and the PSOB Office, will use the system.

  5. OJP OGC should establish definitive performance timelines for attorneys' reviews of the PSOB claims to facilitate claims processing.

  6. Further to the 90-day deadline required by the Attorney General memorandum of May 13,2004, the PSOB Office, within 30 days of receipt of all necessary information and identification of all potential beneficiaries on a PSOB claim, will send a draft PSOB Office determination on the claim, as well as the complete claim file, to the Office of the General Counsel for legal review; the Office of the General Counsel, within 45 days of receipt of a complete PSOB claim file (containing a draft PSOB Office determination and all necessary information and identification of all potential beneficiaries), will complete its review and forward its recommendations to the PSOB Office for execution.



cc: Beth McGarry
Deputy Assistant Attorney General
   for Operations and Management

Domingo S. Herraiz
Director
Bureau of Justice Assistance

Hope Janke
Counsel to the Director
Bureau of Justice Assistance

Marcia K. Paull
Chief Financial Officer

Rafael Madan
General Counsel

LeToya A. Johnson
Deputy Director, Audit and Review Division
Office of Audit, Assessment, and Management

Richard A. Theis
Assistant Director, Audit Liaison Group
Justice Management Division



ATTACHMENT

Percentage of PSOB Heart Attack or Stroke Claims Per OGC Attorney through November 2007

Graph unable to convert. See PDF version of report



Footnotes
  1. OIG Draft Report, passim. The Report's ubiquitous use of this term is confusing, as legally there is no such thing as a "Hometown Heroes Act claim" or a "claim submitted under the Hometown Heroes Act." The HHA establishes a legal presumption applicable to certain PSOB death-benefit claims made under 42 U.S.C. § 3796(a). Until proper determination is made that the claimant's decedent is "a public safety officer" who has "die[d] as the direct and proximate result of a heart attack or stroke," 42 U.S.C. § 3796(k), the HHA is not even implicated. Once that determination is made (and the provisions of the HHA are implicated), the presumption established by the HHA mayor may not be available, depending on the circumstances and supporting evidence presented. cf. 28 C.F.R. § 32.5(a). Thus, it is unclear whether the OIG Draft Report, in referring "Hometown Heroes Act claims," refers consistently to the same thing, and also whether that reference (assuming it to be consistent) is to PSOB death-benefit claims where-(1) the HHA may be implicated (i.e., where there is an alleged or apparent heart attack or stroke, or where the claimant's decedent is alleged or appears to be a public safety officer); (2) the HHA actually is implicated and the HHA presumption may apply; or (3) the HHA presumption actually does apply.

  2. OIG Draft Report at viii. It is unclear what the Report may mean by "the intent" of the HHA. To the extent anything is meant beyond the intent derived by the text of the statute itself, OJP must object. See, e.g., Hughes Aircraft v. Jacobson, 525 U.S. 432, 438 (1999) ("As in any case of statutory construction, our analysis begins with the language of the statute. And where the statutory language provides a clear answer, it ends there as well.") (internal quotation marks and citations omitted).

  3. OIG Draft Report at viii. To the extent that the Report questions OJP's substantive interpretation of the HHA itself, such an opinion unquestionably is beyond the scope of the review demarcated in the OIG's May 30, 2007 memorandum, referred to above, and, in any event, appears to be outside the scope of the OIG's authority under 5 U.S.C. app. 3 § 4(a)(3). The use of appropriations for the PSOB program legally is the responsibility of BJA/OJP, see, e.g., 42 U.S.C. § 3796(a); accordingly, substantive interpretations of that program's underlying law itself is consigned in principle to OJP's General Counsel, see, e.g., DOJ Order No. 2110.39A, ~ 4 (Nov. 15, 1995); 28 C.F.R. § 32.3 (definition of PSOB Office); OJP Instruction No. 1310.72B, ~ 4 (Apr. 4, 2001). If the OIG is asserting that it does have authority to question OJP's substantive interpretations of the laws applicable to the PSOB program, OJP requests a clear statement to that effect, so that it may determine whether to refer this important legal question to the Department's Office of Legal Counsel pursuant to 28 C.F.R. § 0.25(c).

  4. OIG Draft Report at 24.

  5. The OIG Draft Report appears to miss whole steps in the process, suggesting the presence of a serious conceptual problem. For example, the flowchart on pp. 11-12 does not capture the fact that the purpose of a request for medical review is not solely to determine whether there was "competent medical evidence to the contrary" that would overcome the presumption of coverage under the HHA. The medical report, rather, is requested to assist in the determination of a whole host of legal issues, including whether the claimant's decedent actually died as the direct and proximate result of heart attack or stroke, whether a concomitant injury may have been a substantial factor in causing the heart attack or stroke, the timing of heart attack or stroke -which at times reveal additional substantive legal issues requiring review and which often require OGC to request additional information or evidence from the claimant or the public agency.

  6. See, e.g., Groff vs. United States, 493 F..3d 1343, 1349 (Fed. Cir. 2007), cert. denied, _ U.S. _ (2008).

  7. Evidence of the legal complexities surrounding the PSOB program statutes may be found in the fact that, during the period under review by the OIG here, the U.S. Court of Appeals for the Federal Circuit issued four opinions to date relating to PSOB claims (Groff, supra; Amber-Messick ex rel. Kangas v. United States, 483 F.3d 1316, 1321 (Fed. Cir. 2007), cert. denied, _ U.S. _ (2007); Cassella v. United States, 469 F.3d 1376, 1381 -1382 (Fed. Cir. 2006); Hawkins v. United States, 469 F.3d 993,999 (Fed. Cir. 2006)); and four opinions relating to PSOB claims were issued by the Court of Federal Claims (Hillensbeck v. United States, 74 Fed. CI. 477 (2006); White ex reI. Roberts v. United States, 74 Fed. CI. 769 (2006) (appeal currently pending in the Federal Circuit); Dawson v. United States, 75 Fed. CI. 53 (2007); Winuk v. United States, 77 Fed. CI. 207 (2007)).

  8. OIG Draft Report at iv, 23.

  9. OIG Draft Report at 22.

  10. OIG Draft Report at iv; see also, e.g., id. at 18-23.

  11. OIG Draft Report at 22 n. 33 (emphasis added).

  12. OIG Draft Report at 22 n. 33 (emphasis added).

  13. OIG Draft Report at 19 n. 31 (emphasis added) ("[W]e found that entries often included information about such matters as calls from claimants, questions from OGC attorneys, and when the case file was moved in and out of the PSOB Office." (emphasis added)).

  14. OIG Draft Report at 22 n. 33.

  15. OIG Draft Report at xii.

  16. Additionally, the OIG Draft Report nowhere indicates what rule (if any) informed when a note might be made (if it were made at all) that a file was "in OGC for review." The Report states that "[t]he times estimated do not include periods when the case files were returned to the PSOB Office for additional documentation or information," but it fails to address the many instances where the files simply were retained in the Office of the General Counsel pending receipt of "additional documentation or information."

  17. OIG Draft Report at 23.

  18. OIG Draft Report at iv.

  19. OIG Draft Report at 23.

  20. OIG Draft Report at 23.

  21. Absent some strong contraindication, it is the invariable practice of OGC --as indicated by the log records it maintains --to track each claim file always back to the same attorney who handled it earlier. Very rarely, different attorneys may be assigned to review the same claim, but only when the legal review otherwise would be unduly delayed (as, for example, might occur when an attorney who first handles the claim goes out on extended leave, or has an unavoidable and sharp increase in workload in connection with other matters he handles).

  22. See the attached bar chart entitled "Percentage of PSOB heart attack or stroke claims per OGC attorney through November 2007."

  23. OIG Draft Report, at 24. The OIG Draft's Report's frequent use of the term "compensation" to describe the PSOB death benefit, OIG Draft Report at 7; see also, e.g., id. at I, 2, 24, is confusing. The notion of "compensation" is not legally relevant to the PSOB program, as the payment under the PSOB Act is a legal "'gratuity.'" Rose v. Arkansas State Police, 479 U.S. 1,4 (1986) (per curiam). As the law of gratuity clearly holds, all elements of a claim must be satisfied by a claimant before payment may be made. Semple v. United States, 24 Ct. Cl. 422 (1889); 36 Op. Att'y Gen. 227 (1930); 16 Op. Att'y Gen. 408 (1879).

  24. See, e.g., 28 C.F.R. § 32. 14(a) (emphases supplied):

    (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.

  25. The OIG Draft Report, at 24 (emphasis supplied), states that "the OGC attorney sometimes requested additional documents and information, such as a report of the decedent's activities for the 24 hours prior to the heart attack or stroke, even when the claim did not meet the basic criteria established by the PSOB Act of the [HHA]." As stated in text above, the determination of whether a claim "meets... basic criteria" is a legal one, and the foregoing example itself illustrates this: The reality is that in several cases, the evidence received indicated that during the 24 hours before the onset of acute heart attack or stroke symptoms, the officer was not engaged in a situation (or did not participate in a training exercise) involving any stressful or strenuous physical public safety activity. Until the medical review was complete, however, it was not known, precisely, when the officer's heart attack or stroke actually may have begun. Where there was some indication in the record that the fatal heart attack may actually have started some time before the officer began to feel its acute effects, OGC attorneys sometimes prophylactically requested more information about what the officer may have been doing during a longer period before the heart attack appeared to have begun.

  26. Closely related to the foregoing allegation is the assertion that OGC "attorneys would review the claim at different times but not keep records of their reviews, which sometimes led to duplicative information requests. In addition,... attorneys had no formal method for recording information requests in a case file, so their requests were not documented unless they were noted in the PSOB database by PSOB Office staff members" OIG Draft Report, at 24. This assertion that OGC attorneys "do not keep records" and that their "requests were not documented" is incorrect. The substance of much of their advice, (continued) commentary, requests for information, and legal review is kept by the OGC attorneys in electronically­ stored media, such as their records of their..e-mail conversations," id., with the PSOB Office.

  27. OIG Draft Report, at 24.

  28. In any event, whether a particular change actually is substantive or merely stylistic is debatable. Certainly, a poorly-framed determination is more problematic than one that is well written. Also, an apparently "stylistic" change that causes a PSOB determination to be framed in terms that more closely approximate terms used in the 91-some court decisions on the PSOB program enables that determination better to withstand attack in litigation than otherwise. These are weighty considerations, given the extensive litigation, indicated above, of PSOB claims in recent years. Additionally, the recent holdings in Groff, 493 F.3d at 1350 & n.2, and Amber-Messick, 483 F.3d at 1323, that final agency determinations of PSOB claims "have the force of law," make it all the more important that those determinations be clear and accurate, as their effect will be projected onto future claims under the program.

  29. Pub. L. No. 109-162, § 1164(d), 119 Stat. 2960, 3120 (2006).

  30. See, e.g., 28 C.F.R. § 32.52(b); Groff, 493 Fed.3d at 1352.

  31. Pub. L. No. 110-161, § 6, div. B, tit. II (Public Safety Officers Benefits proviso), 121 Stat. 1844, 1912 (2007).

  32. OJP acknowledges that 28 C.F.R. § 32.55(a), which (when promulgated) correctly stated the law (and which may have been the source of the statement in the OIG Draft Report), no longer (i.e., since last December 26th) is accurate and should be amended promptly so as to avoid sowing confusion among claimants or their representatives.



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