On March 5, 2008, the OIG sent a draft of this report to the Office of Justice Programs (OJP) with a request for written comments. OJP responded to the OIG in a memorandum dated March 18, 2008. The OJP response (Appendix VIII of this report) included comments on the findings of the OIG report, a list of statements in the OIG report that OJP claimed are “mistaken or incomplete,” and OJP’s specific responses to the recommendations.
Although the OJP written response did not explicitly state concurrence or non-concurrence with the recommendations, on March 19, 2008, the OJP liaison confirmed that OJP agreed with all the recommendations. Further, the OJP written response provides its planned actions for implementing all the OIG’s recommendations.
In this appendix, we address OJP’s commentary, OJP’s assertions of factual inaccuracies, and the actions proposed by OJP to implement the recommendations in our report.
OIG ANALYSIS OF OJP’s COMMENTS
OJP agreed with our finding that a lack of documentation and evidence from claimants contributed significantly to delays in processing Hometown Heroes Act claims. OJP also agreed that claims were delayed while OJP was searching for a new pathology contractor to conduct medical reviews for the Public Safety Officers’ Benefits (PSOB) claims. OJP’s response, however, disagreed with our finding that lengthy and inconsistent legal reviews contributed to the slow processing of Hometown Heroes Act claims. OJP’s response also took issue with our findings regarding the legal reviews of the claims. We believe that OJP’s response is not persuasive and is misleading.
In general, OJP’s response stated that the OIG report does not acknowledge that the lengthy legal reviews were necessary and appropriate to address “often-complex factual, legal, and medical information.” The OIG is well aware of the complexities and issues from our review of claims determinations and discussions with both PSOB Office and OGC staff that process Hometown Heroes Act claims, which are detailed in the report. As described in our report, notwithstanding the complex issues, the evidence demonstrated that in some cases the legal reviews were untimely because of inefficient internal OGC practices, questionable document requests, and OGC’s lack of timeliness standards for its legal reviews. Also, we note that the excessive delays in implementing the Hometown Heroes Act and in processing claims have been already acknowledged in congressional testimony by the Department. Regarding the time taken to begin processing claims, the former Attorney General stated, “ It’s taken us too long, and I apologize to the families.”84 OJP’s suggestion in its response that the delays were reasonable is not supported by the evidence or the Department’s position.
Moreover, our analysis of the evolution of the PSOB Program and the decisions on claims showed that OJP initially applied a narrow interpretation of the Act’s requirement that a public safety officer’s activities be “nonroutine stressful and strenuous” in denying 19 claims.85 We note that OJP recently changed how it applies the term “nonroutine” in evaluating PSOB claims and that it invited all previously denied claimants to request an appeal. We also note that the first four denied Hometown Heroes Act claims that had completed the first level of appeal at the time of our review were overturned and approved.
In the following paragraphs, we address in more detail each of OJP’s specific comments.
Calculation of Time for OGC Legal Review
The OIG disagrees with the OJP assertion that the OIG incorrectly determined the time Hometown Heroes Act claims were in legal review. The data available to the OIG was sufficiently complete and confirmed by interviews with OJP staff, which supported the findings in the report. To ascertain the time it took OGC to conduct legal reviews, we reviewed all case notes contained in the PSOB Office database for each of the 112 completed Hometown Heroes Act claims. We were able to identify the date a case file was sent from the PSOB Office to OGC and the date OGC returned a case file in the vast majority (95) of the 112 claims.86 In addition, we were conservative in our estimates of the time taken for legal reviews, and we did not include any information from the database unless a PSOB Office staff member entered into the case notes a clear statement that a case file had been sent to or returned from OGC.
OGC also argued in its response that our estimate of the time taken for legal reviews was incorrect because OGC attorneys do not use the PSOB Office database and the database does not include any case-logging information from OGC. We noted that OGC maintains a spreadsheet that identifies where a PSOB case file is at any time, but the dates in the “Received in OGC” and the “Returned to PSOB” columns are overwritten every time the case file is moved in and out of OGC. Consequently, the OIG could not use the OGC spreadsheet to estimate the times for legal review of the Hometown Heroes Act claims. The OIG’s estimate was based on an analysis of 85 percent (95 of the 112) of all the claims that had been completed, using the most complete data available in OJP, and we believe it is a valid portrayal of the time that OGC took to conduct legal reviews of Hometown Heroes Act claims.
OJP asserted that the only applicable standard for judging its timeliness was the Attorney General’s 90-day deadline. We note that the Attorney General’s standard is applicable to the entire PSOB Office’s processing of claims, not OGC’s legal reviews. Nonetheless, our review found that OGC’s legal review of at least 26 of the 95 cases for which reliable data were available exceeded 90 days.
Allegation of Unwarranted Length of Time in Processing
OJP‘s response that the majority of the Hometown Heroes Act claims (75 percent) were processed by two OGC attorneys is not consistent with the information provided to the OIG during our review. We asked questions in several interviews with OGC staff about how PSOB claims are assigned for legal review. In August 2007, the General Counsel told us in an interview that he intentionally spread the PSOB Program work among many attorneys so that they could all gain experience and because death benefits claims are “depressing.” Also in August 2007, the Deputy General Counsel stated that 11 OGC attorneys worked on PSOB claims. She stated that while some attorneys have more experience with the Hometown Heroes Act, all of the 11 attorneys worked on Hometown Heroes Act claims.87 Additionally in August 2007, the OGC paralegal who assigns PSOB claims to attorneys told the OIG, “There were [originally] only two attorneys working on the Hometown Heroes Act claims, but now all the attorneys assigned to review claims are working on the[se claims].”
The OJP suggestion that reviewing the attorney signatures on the Hometown Heroes Act claim determinations would show that the majority of claims were reviewed by only a few OGC attorneys is misleading. After receiving the OJP response, we reexamined the claims determinations and confirmed that they contained only three signatures, those of the PSOB Benefits Specialist who prepared the determination, the PSOB Director who reviewed and approved the determination, and the OGC attorney who concurred with the determination. This attorney’s signature on the majority (64 of 112) of the Hometown Heroes Act claims determinations was that of the Deputy General Counsel. As described to us during our review, however, she did not conduct primary legal reviews. According to the General Counsel, he had assigned the Deputy General Counsel the responsibility to conduct a secondary review of all PSOB claims to ensure consistency. According to the Deputy General Counsel, the primary legal review was carried out by OGC staff and contract attorneys, and she then examined their legal analyses for consistency. That process was confirmed in all of our interviews, as OGC staff told us that every PSOB case file was routed through the Deputy General Counsel (or the attorney acting in her absence) for the secondary review. Therefore, it does not appear that the OGC attorney signatures on the claim determinations are those of the primary legal reviewers.
The OJP statement that OGC attorney requests for documentation did not lead to unnecessary delays is also not supported by our review of the PSOB database or our interviews with PSOB Office and OGC staff. Not all of the documents collected during the claims review process are needed to begin the legal review. By waiting until all possible documents are in hand, OGC unnecessarily delayed beginning its legal reviews. The OIG agrees that it is often important for OJP to request additional information from claimants. We also agree that the example OJP gives is one of those instances where it is important to request additional information. In the OJP example, OJP requested information on a decedent’s activities for a longer period than 24 hours prior to the incident because OJP wanted to establish whether the onset of the officer’s heart attack or stroke actually occurred earlier.
However, some of the OGC requests for additional documentation were made when the evidence already at hand should have enabled the OGC attorney to proceed with the legal review of the claim, and in these cases, the claims process was delayed unnecessarily. For example:
Beneficiary Information – While it is OJP’s responsibility to identify all beneficiaries, documentation to establish each potential beneficiary’s eligibility (e.g., birth certificates, marriage licenses, divorce decrees) is not needed to begin evaluating whether the public safety officer’s death meets the criteria for the PSOB Program.
State and Local Death Benefits – In some cases, OGC unnecessarily delayed reviewing cases pending the receipt of hard-copy documents to confirm claimants’ statements as to whether they had received state or local benefits.88 In other cases, OGC asked the PSOB Office to obtain documentation on state or local benefits even though the state or locality where claimants resided did not provide benefits for death by heart attack or stroke. The Deputy General Counsel stated that OGC is no longer requesting this information for claims from those states or localities.
Basic Program Criteria Determinations – In some cases, OGC requested additional documentation when the evidence already at hand showed that the claims clearly did not meet basic PSOB Program criteria. For instance, OGC sometimes requested 10 years of medical records even though the evidence showed that the decedent was not a public safety officer or had not been engaged in line-of-duty activity and so was not covered by the PSOB Program.
Waiting until these types of documents are received before beginning legal reviews unnecessarily delays claims processing and increases the total processing time. Such delays contributed to OJP taking a median of 10 months to process claims after the PSOB regulations were issued.
OJP asserts in its response that it maintains the “substance of much of the [OGC attorney’s] advice, commentary, requests for information, and legal review” in electronically stored media. However, that does not refute the OIG report finding that OGC has no formal record-keeping system to document its attorneys’ actions on PSOB claims. While OGC attorneys may keep their e-mails concerning their reasoning and advice on PSOB claims, there is no formal system for recording information requests in the hard-copy case file or case file database. This informal process could lead to duplicative requests for information. Further, OJP’s response conflicts with information it provided to us during our review. As stated in the OIG report, the Deputy General Counsel told us that she encourages attorneys to put information requests and comments related to a claim in writing. However, she said that communication with the PSOB Office was informal and often occurred by telephone, e-mail, or in person. Consequently, as we observed during our review, the PSOB case files generally contained no record of an OGC request unless it was put in by a PSOB Office staff member.
The OJP assertion that our finding that OGC attorneys made inconsistent edits on claims determinations is “unsupported by data” does not address the issue that we raised. In our review of the claims determination templates OGC created for use by the PSOB Office, we noted instances in which different OGC attorneys made edits to the templates that PSOB Office staff told us left them confused as to which template version was current. Also, we saw instances in which draft determinations were passed back and forth between the PSOB Office and OGC numerous times to incorporate OGC edits, lengthening the time it took to process claims. The fact that the claims determinations were sometimes heavily edited was confirmed in interviews with both PSOB Office and OGC staff. For example, the PSOB Office Director told us that her staff was required to frequently revise documents based on what appeared to be individual language preferences not affecting the substantive legal issues. She told us that her office had stopped delaying the claims determinations for stylistic changes.89 In August 2007, the Deputy General Counsel stated that she had directed the attorneys not to make such stylistic changes unless it was necessary for legal sufficiency, although she claimed to us that the edits had not caused any delays.90
Finally, in a footnote on page 3 of its response, OJP stated that the OIG flowchart depicting the claims review process (Figure 1 on pages 11 and 12 of this report) “appears to miss whole steps.” The OJP response provides as an example of an omitted step, stating that the box representing the pathologist review does not contain a full and complete explanation of the reasons for the pathologist’s review. The OJP comment misconstrued the purpose of a flowchart, which is to present a process in a succinct graphic form. A complete description of the role of the pathologist appears in Table 5 in Appendix 5, Staffing for the PSOB Program.
OJP’s claims of factual inaccuracies
The OJP response listed nine statements or references in the OIG draft report that it believes were mistaken or incomplete. We address each of the nine matters below.
Summary of OJP’s Statement: OJP stated that the OIG draft report’s description of the October 2, 2007, Bureau of Justice Assistance (BJA) policy memorandum as indicating that any response to an emergency call should be considered nonroutine is an inaccurate description. According to OJP, “the policy memorandum creates a rebuttable presumption, specifically by providing that ‘[r]esponding to an emergency call shall presumptively be treated as nonroutine.’"
Summary of OJP’s Statement: OJP questioned the accuracy of the OIG draft report’s statement that “great physical exertion [i]s required by the regulations” because that exact term is not in the PSOB Program regulations.
Summary of OJP’s Statement: OJP stated that “[o]n pages 1 - 2, to the extent the bridge paragraph of the OIG Draft Report is intended to provide an accurate legal description of the HHA provisions, it is abbreviated and conflates several statutory requirements, and thus is inaccurate.”
Summary of OJP’s Statement: The OJP response stated that “the first sentence of the second full paragraph [on page 3 of] the OIG Draft Report is inaccurate” because the criteria discussed in that paragraph (“nonroutine stressful or strenuous physical activity” and “competent medical evidence to the contrary”) are not the only criteria for determining whether a claim would be eligible for compensation.
Summary of OJP’s Statement: OJP stated that the OIG report definitions of “nonroutine stressful physical activity” and “nonroutine strenuous physical activity” on pages 5 and 6 do not match the language of the regulations and “to that extent are erroneous.” OJP also stated that the OIG’s definitions “may have been intended to incorporate notions that inform a BJA policy memorandum of October 2, 2007” regarding the interpretation of “nonroutine.” OJP stated the memorandum “does not purport to create a definition of nonroutine.” Instead, OJP stated, the memorandum “provides guidance on how to evaluate evidence relating to whether an activity may be nonroutine.”
Summary of OJP’s Statement: The OJP response stated that the OIG report’s discussion (page 6) of OJP’s coordination with the Armed Forces Institute of Pathology (AFIP) to define the term “competent medical evidence to the contrary” is incomplete because OJP also “consulted extensively with other medical-, public safety-and vocational experts.”
Summary of OJP’s Statement: The OJP response stated that the OIG report’s description of the “PSOB Program beneficiary hierarchy” in footnote 24 on page 8 and the citation for the Mychal Judge Act are incorrect. OJP stated that the Department of Justice Appropriations Authorization Act of 2005 amended the Mychal Judge Act provisions regarding the statutory order of death beneficiaries for the PSOB Program.
Summary of OJP’s Statement: The OJP response stated: “To the extent that the second paragraph on page 9 of the OIG Draft Report suggests that a claimant ‘has the opportunity to present new or additional evidence’ only ‘[d]uring a hearing,’ it is inaccurate. At each level of administrative appeal, the claimant has the opportunity to provide additional evidence and argument.”
Summary of OJP’s Statement: The OJP response noted that the Department of Justice Appropriations Authorization Act of 2008, signed into law on December 26, 2007, changed the court of jurisdiction for appeals beyond the administrative level from the U.S. Court of Federal Claims to the Court of Appeals for the Federal Circuit.91
OIG Response: The OIG report provided a plain language description of the meaning of the memorandum. However, to address OJP’s point, we have added a footnote to explain, in legal terms, that OJP considered the direction provided by the memorandum that “responding to an emergency call shall presumptively be treated as nonroutine” as a “rebuttable presumption.”
OIG Response: The OJP response is correct that the exact language does not appear in the PSOB Program regulations. Although we maintain that our paraphrasing provided an accurate description of the program requirements, to avoid confusion we changed the report to read, “did not involve ‘nonroutine stressful or strenuous physical activity’ as required by the regulations.”
OIG Response: We reviewed our description of the Act on pages 1, 2, and 3 of the Background section of this report and believe it provides an accurate, plain language description of the Act.
OIG Response: The OIG report is clear that those are not the only two criteria. The full criteria are discussed immediately preceding the paragraph in question. However, the paragraph at issue (on page 3 of this report) focuses on OJP’s definition of the two specific terms that had raised congressional concerns after the Act’s implementation.
OIG Response: The OIG report’s description of “nonroutine stressful and strenuous physical activity” is not a verbatim quote of the regulations and presents the regulatory language in plain terms.
OIG Response: That information actually was presented on page 3 of the report in the introductory paragraph of the section to which OJP referred.
OIG Response: We revised footnote 24 on page 8 of this report to reflect the changes made by the Department of Justice Appropriations Authorization Act of 2005 by adding “the individual designated as beneficiary by the public safety officer at their agency or organization” to the roster of beneficiaries.
OIG Response: The OJP response misquotes the OIG report. We did not state that the claimant can “only” present new evidence to the hearing officer. Further, the section cited by OJP refers the reader to the full description of the appeal process found in Appendix III of this report. This appendix clearly states that claimants can present new evidence at each administrative level of the appeal process.
OIG Response: We updated Appendix III of this report to reflect the new legislation.
Recommendation 1: The BJA should finalize the “Attorney General’s Guide to the Hometown Heroes Act.”
Status: Resolved – Open
Summary of OJP’s Response: OJP agreed with this recommendation and stated that the BJA will work with the Department of Justice to finalize the “Attorney General’s Guide to the Hometown Heroes Act.”
OIG Analysis: As discussed in the report, the BJA is in the final phase of editing the “Attorney General’s Guide to the Hometown Heroes Act.” Please provide the OIG with a copy of the final guide when published or a status report on the guide by June 30, 2008.
Recommendation 2: The OJP OGC staff attorneys should use the PSOB Office case management system to record their case notes, requests for documentation, and other case-related communication with the PSOB Office.
Status: Resolved – Open
Summary of OJP’s Response: OJP agreed with the recommendation and stated that the OGC attorneys and the PSOB Office will use the system when it is “sufficiently developed and operational.”
OIG Analysis: By June 30, 2008, please provide the OIG with the status of OJP’s implementation of the new PSOB case management system and a copy of the guidance directing attorneys to use the system.
Recommendation 3: OJP OGC should establish more definitive performance timelines for attorneys’ reviews of PSOB claims to facilitate claims processing.
Status: Resolved – Open
Summary of OJP’s Response: OJP agreed with this recommendation and stated that the PSOB Office will send a draft claim determination on the claim to OGC within 30 days of receipt of all necessary information and identification of all potential beneficiaries. OGC will complete its review and forward its recommendations to the PSOB Office for execution within 45 days of receipt of a complete PSOB claim.
OIG Analysis: By June 30, 2008, please provide the OIG with the status of OJP’s implementation and tracking of performance under these standards.
These 19 claims involved public safety officers that had suffered a heart attack or stroke after responding to a call but before arriving at the scene, after responding to a call that was a false alarm, after responding to a call and not conducting law enforcement or emergency activities at the scene, or after responding to a call and not performing any activity that involved great physical exertion at the scene.
OJP is incorrect in its assertion that our method led us to count as part of the legal review process time it spent waiting for the PSOB Office to collect additional evidence or information from claimants. OJP stated that because OGC sometimes held case files while awaiting action by the PSOB Office, the OIG’s estimate wrongly included the wait time as part of the legal review. However, during our fieldwork, we were told that OGC did not retain case files after requesting that the PSOB Office collect additional evidence or information. OGC returned the case files to the PSOB Office because they contain evidence and contact information that Benefits Specialists need to obtain additional material requested by OGC reviewers. As a result, while we counted time spent waiting for additional documents or information in our overall estimate of total claims processing time, we did not attribute that time to the legal review process.
While receiving such benefits does not affect the eligibility of a claimant under the Hometown Heroes Act, it helps OGC establish that another authority considered the public safety officer’s death to have been either in the line of duty or not.
In its response, OJP stated that the Deputy General Counsel’s comments during the interview pertained to direction she gave the attorneys “literally years” before OJP began processing Hometown Heroes Act claims in September 2006. However, our August 2007 discussion with the Deputy General Counsel was specifically related to OGC attorneys’ stylistic edits to the Hometown Heroes Act claims determinations in 2007, and she did not indicate that she was referring to directions she had given years before the Act was implemented.