Introduction
The Office of the Inspector General (OIG) conducted this review to examine how the Office of Justice Programs (OJP) has implemented the Hometown Heroes Survivors Benefits Act of 2003 (Hometown Heroes Act) and how it processed claims submitted under the Act. The Act established death benefits for public safety officers, such as police officers and firefighters, who die of heart attacks or strokes in the line of duty or within 24 hours of a triggering event while on duty.1 We assessed the timeliness of OJP’s processing of claims filed under the Act, OJP’s determination of whether or not to award benefits, and the reasoning behind these determinations. We conducted the review in response to concerns expressed by several members of Congress that OJP was taking too long to process claims submitted under the Act and that OJP’s narrow interpretation of terms found in the Act – in particular the phrases “ nonroutine stressful or strenuous physical activity” and “competent medical evidence to the contrary” – might be resulting in a high rate of claims denials.
The Hometown Heroes Act includes a statutory presumption that public safety officer s who die from a heart attack or stroke following a “nonroutine stressful or strenuous” physical public safety activity or training exercise died in the line of duty. However, under the Act the statutory presumption that heart attacks or strokes following stressful or strenuous physical activity are line-of-duty-related deaths can be overcome with “competent medical evidence to the contrary.” This means that an officer’s pre-existing medical conditions that contribute to a heart attack or stroke may render the claim for benefits not compensable.
Hometown Heroes Act claims are processed through OJP’s Bureau of Justice Assistance (BJA), which administers the Public Safety Officers’ Benefits (PSOB) Program. The PSOB Office reviews the documentary evidence submitted by Hometown Heroes Act claimants and public safety agencies, contacts the claimants and agencies for additional documentation and information, and writes initial determinations to approve or deny claims.2 OJP’s Office of the General Counsel (OGC) is responsible for conducting a second review of Hometown Heroes Act claims and providing assessments of any legal issues. Both offices must concur in their evaluation of a claim before a final approval or denial can be issued to the claimant. From December 2003 through the end of November 2007, OJP received 291 Hometown Heroes Act claims and issued 112 determinations – 65 denials and 47 approvals, with $12,889,452 paid to claimants.3
Results in Brief
As of November 29, 2007, OJP had completed only half of the Hometown Heroes Act claims it received in the first 3 years after passage of the Act. Some of the claims that remained pending as of November 2007 had been filed as long ago as 2004. One of the reasons for the delay in processing claims was the fact that OJP took 33 months to issue final regulations implementing the Act, during which time OJP developed a backlog of 201 claims. However, even after OJP issued the necessary regulations in September 2006, it processed claims slowly. Processing was slow because most claims had been submitted without required documentation, OGC’s legal reviews of claims were time consuming, and decisions on some claims were delayed because OJP could not obtain needed pathology reviews.
In the fall of 2007, OJP implemented several initiatives designed to expedite its processing of claims and by the end of our review had reduced the backlog of 201 claims to 99, for a total of 179 claims pending determination.
We also found that OJP initially denied many claims because, according to OJP, evidence provided by the claimants did not prove that the decedents’ activities, such as installing smoke detectors or manning a station house, were “stressful” or “strenuous” as required by the Act. Some denials were based in part on OJP’s narrow legal interpretation of the definition of “nonroutine” activities. In October 2007, the BJA issued policy memoranda clarifying that any response to an emergency call should be considered “nonroutine” for purposes of analyzing claims under the Act. The Director of the PSOB Program Office stated that this step has since led to more claims being approved and faster claims processing.
The following sections of this Executive Summary describe in more detail the OIG’s findings.
Timeliness of Claims Processing
OJP took a long time – from December 2003 to September 2006 – to update the PSOB Program regulations to implement the Hometown Heroes Act. During that time, OJP developed a backlog of 201 Hometown Heroes Act claims.
According to OJP, several factors affected its ability to update the program regulations, including the time it took to consult with public safety organizations and medical experts and the time required for Department of Justice and Office of Management and Budget reviews of the proposed regulations. OJP said it had to incorporate not only the Hometown Heroes Act into the PSOB Program regulations, but 18 other congressional amendments to the program and numerous court decisions made in the 30-year period since the original regulations were issued. During this almost 3-year period, no claims were processed because OJP could not make claim determinations until the final PSOB Program regulations were issued.
The final PSOB Program regulations became effective on September 11, 2006. As of that time, 201 claims were pending. However, we found that OJP’s processing of claims was slow even after the regulations were in place. As of November 29, 2007, 179 Hometown Heroes Act claims were pending OJP’s final determination, including 16 claims that had been pending for over 3 years. While the PSOB Office had taken some steps to prepare claims for processing during the time the regulations were being developed, these initial steps did not enable OJP to make timely determinations after the regulations were in place.
We examined how long it took OJP to process Hometown Heroes Act claims after regulations were issued and found that the processing times for the 112 claims completed by OJP ranged from 2 to 12 months, with a median processing time of 10 months. Overall, the 112 completed claims represented 38 percent of the 291 claims OJP received from passage of the Act in December 2003 through November 2007.
We found that three factors contributed to the length of time required to process claims after the regulations were issued. First, almost all of the claims were submitted without all required information and documentation. According to the PSOB Office staff, claimants often have difficulty preparing complete claims because of insufficient guidance, the time and expense of acquiring documentation, and in some cases limited assistance from the public safety agencies involved in the claims. As a result, the PSOB Office officials said they had to request additional information from claimants and agencies, which often added months to the process.
Second, the reviews of claims by OJP’s OGC have been lengthy. We reviewed Hometown Heroes Act claims and the database that records activity on claims and estimated that OGC reviews took a median of 50 days, with some reviews taking more than 180 days. The length of the review was extended because of certain inefficient internal practices by the OGC, such as allocating PSOB claims across numerous attorneys and sometimes requesting additional documentation and evidence that was not necessary for making a determination on whether a claim was compensable. Additionally, because OGC has no formal method of recording information requests in the case files, the PSOB Office received duplicative information requests from OGC attorneys. Further, OGC attorneys made numerous inconsistent edits to the draft determinations, adding time to the claims review process. Finally, we noted that OGC had no established timeliness standards for conducting its reviews of the claims.
Third, some Hometown Heroes Act claim determinations were delayed pending the independent medical pathology review required for claims that OJP determined had met all other PSOB Program requirements. Initially, the Armed Forces Institute of Pathology (AFIP) provided these reviews, but in May 2007 the AFIP informed OJP that it could not continue doing so because the war in Iraq increased its workload from the military services.4 Consequently, processing for some claims was delayed until OJP identified a new pathology contractor.
OJP Initiatives to Improve the Claims Review Process
Toward the end of our review, the BJA and OJP’s OGC implemented several initiatives to address some of the deficiencies that have contributed to the lengthy claims review process. These initiatives included providing additional guidance to claimants and changing internal procedures to speed the claims review process. During fiscal year (FY) 2007, OJP’s first year of processing claims after the final regulations were issued, OJP issued 72 determinations. In contrast, during the first 2 months of FY 2008, OJP issued 40 determinations. The increased number of determinations issued suggests that some of the new policies and procedures have improved claims processing.5 These initiatives are discussed below.
Better Guidance for Claimants and Agencies
The BJA, with input from public safety officer associations, is developing a manual about the Hometown Heroes Act for claimants and public safety agencies (“The Attorney General’s Guide to the Hometown Heroes Act”). According to the PSOB Director, the manual will consolidate all claim application instructions in a single document that contains detailed information on the Hometown Heroes Act and the criteria used to evaluate claims. Additionally, the manual will translate the legal language of the statute and program regulations into more understandable terms.
Local Assistance State Teams
In 2006, the BJA began awarding grants to firefighter and police associations to develop the Local Assistance State Teams. The teams are deployed when a firefighter or police officer dies in the line of duty to aid the decedent’s family, the public safety agency, and colleagues with assistance with funeral arrangements, counseling, and submitting PSOB claims.
New Approach to Required Documentation
In October 2007, the BJA stopped requesting 10 years of medical records from Hometown Heroes Act claimants unless evidence in a case file suggests something other than a line-of-duty activity caused the decedent’s heart attack or stroke. This change will reduce the time spent requesting and waiting for records. Also, OJP no longer requests documentation on death benefits from claimants in states and localities that do not offer death benefits for heart attacks and strokes.
“12-a-Week” Initiative
The PSOB Director started a “12-a-week” initiative in August 2007 to work through the pending Hometown Heroes Act claims and to accelerate the claims process overall. Under the initiative, the PSOB Office staff and the Director meet weekly to determine whether case files for the 12 oldest Hometown Heroes Act claims include all the documentation necessary to make a decision and then forward those claims to OJP OGC for a legal review. According to the PSOB Director, processing is not delayed if a case file lacks documents or information that is not material to the approval or denial of a claim.
Outreach Administrative Contractor
In September 2007, the PSOB Director hired an Outreach Administrative Contractor to handle some of the most time-consuming tasks associated with PSOB claims processing, such as contacting claimants and public safety agencies for additional information and documents. According to the PSOB Director, the contractor’s performance of the outreach tasks should allow the PSOB Office staff to concentrate on analyzing case file evidence and rendering determinations.
PSOB Case Management System
In October 2007, the PSOB Office began the first phase of implementing a new case management system. The PSOB Office’s previous database did not allow for detailed searches of case file information, reminders for follow-up actions, or a direct link to scanned documents that accompany claims. Unlike the old database, the new system allows OGC attorneys reviewing PSOB claims access to view entire case files in the system and to add their review notes for the PSOB Office staff.
OJP’s Decisions on Hometown Heroes Act Claims
As of November 29, 2007, OJP had approved 47 claims for benefits and denied 65 of the 112 claim reviews that it had completed.6 In 10 of the 65 denied claims, OJP determined that the application did not contain the evidence to show that the claim met basic eligibility criteria established in the PSOB Act or the Hometown Heroes Act (such as that the decedent be a public safety officer, be on duty in the 24 hours prior to death, or have performed line-of-duty activities). Therefore, OJP did not further evaluate the 10 claims for evidence of “nonroutine stressful or strenuous” physical activity or “competent medical evidence to the contrary.”
In assessing the 55 other denied claims, OJP reviewed the claims against the Act’s requirement that the fatal heart attack or stroke followed “ nonroutine stressful or strenuous” physical public safety activities or training exercises. In our review of these claim determinations, we observed that OJP focused more on the stressful and strenuous nature of the physical activities or training exercises in which decedents had engaged and less on how frequently or routinely the activities were conducted.7
OJP concluded that these 55 claims were non‑compensable because the evidence did not show that the public safety officers engaged in “stressful or strenuous physical activity or training.” None of the 55 denied Hometown Heroes Act claims cited “medical evidence to the contrary” as a basis for denial. However, our review concluded that OJP narrowly interpreted the Act for at least 19 of the claims denied during its first year of claims processing. Specifically, OJP denied 19 claims in which officers had responded to emergency calls based partly on a criterion that was later changed by a policy memorandum issued in October 2007. After October 2, 2007, OJP changed its policy to consider any response to an emergency call to be “nonroutine.” The PSOB Director attributed the subsequent approval of some claims to the policy change.
The reasons for the 65 denials, taken from information in the claim determinations, are summarized below.
OJP’s Reasons for Denying Claims
Cases That Did Not Meet the Basic Criteria of the Act
Of the 65 denials, 10 were cases in which OJP concluded that the applications failed to show that the claims met the basic criteria established in the PSOB Act or the Hometown Heroes Act. Five of these claims failed to show evidence that the decedent was a public safety officer, four failed to show evidence that the officer was on duty in the 24 hours prior to the heart attack or stroke, and one failed to show evidence that the death met the requirements for “line of duty.”8
Cases Involving Officers Who Did Not Respond to a Call
Another 27 of the 65 denied claims involved officers who were on duty but did not respond to a call and did not engage in a qualifying activity as required by the Hometown Heroes Act.9 The officers in several of these 27 claims had engaged only in administrative activities, such as filling out paperwork or attending meetings, or ancillary activities, such as routine maintenance on department vehicles, marching in a parade as a member of the department, installing smoke detectors for citizens, or manning the station house. OJP denied other claims in this category because it concluded that the officers’ activities, while not administrative or ancillary, nonetheless did not involve “non routine stressful and strenuous physical activity” as required by the regulations. Examples of activities in these claims include correctional officers who made rounds and assisted in food service but did not respond to an emergency and officers who conducted regular patrols or routine traffic stops.
Cases Involving Officers Participating in Training
Nine of the 65 denied claims involved public safety officers who died after training activities that did not meet criteria in the Hometown Heroes Act. Some of these officers attended training sessions in a classroom that did not involve physical activity or had died while engaging in physical fitness training (such as lifting weights or walking on a treadmill) that did not simulate an emergency response activity. In other cases, OJP denied claims because an officer prepared the training or observed participants in a training session but did not engage in any training activities.
Cases Involving Officers Who Responded to a Call: Potentially Narrow Interpretation of the Act
In 19 of the 65 denied claims, OJP concluded that a public safety officer 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 any 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. However, OJP evaluated these claims using a narrow interpretation of the Act. OJP determined that the claims did not have enough evidence to show that the officer’s response to the emergency call involved “nonroutine stressful or strenuous physical activity” or that the officers’ activities after responding to the call qualified as “ law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief or other emergency response activity.”10 Responses to emergency calls were not automatically defined as “nonroutine,” and OJP evaluated the evidence in each claim to determine if the officers’ emergency response activities met the requirements of the Hometown Heroes Act and PSOB Program regulations.
However, in October 2007, the BJA issued a policy memorandum that stated that any response to an emergency call should be considered “nonroutine” for purposes of analyzing claims eligibility.11 The memorandum also stated that claims were to be reviewed based more on how stressful or strenuous an activity was and less on the frequency with which it was performed. Further, the revised policy stated that no activity was to be considered routine based solely on the public safety agency’s description of the activity as being “routine” or “ordinary.” The PSOB Director told us that the policy was instituted as a result of the experience gained after a year of processing Hometown Heroes Act claims. These 19 denied claims were decided prior to issuance of the October 2007 memorandum.
The PSOB Director told us that she intended to call each claimant whose Hometown Heroes Act claim had been denied prior to November 1, 2007, and whose claim was not already in the appeals process, to inform them of the new policy. In addition, OJP said it will waive its standard deadline for filing appeals to accommodate these claimants if they choose to appeal the initial decision.
According to the PSOB Director, the change in policy defining a response to an emergency call as “nonroutine” has resulted in more approved claims. Prior to the October 2007 policy clarification, OJP denied 58 of 72 claims and approved only 14; during the first 2 months of FY 2008 (after the policy change), OJP issued another 40 determinations, approving 33 claims and denying only 7.12
CONCLUSION AND RECOMMENDATIONS
OJP took 33 months after passage of the Hometown Heroes Act to develop implementing regulations and initially was slow in processing claims. As a result, OJP had completed only 112 (38 percent) of the 291 Hometown Heroes Act claims it had received as of November 29, 2007. In addition, OJP’s first year of processing claims under the Act highlighted several inefficiencies in the review process. These included lengthy legal reviews of claims and multiple requests for additional documents by OJP OGC, no established timeframes for attorney reviews, no formal method of recording attorneys’ requests for information, incomplete claims submissions, and delayed pathology reviews that prevented timely assessments of claims.
In the fall of 2007, the BJA implemented new policies and actions designed to expedite the claims review process, and early evidence suggests that processing times have improved. For example, while OJP issued determinations on 72 Hometown Heroes Act claims in all of FY 2007, in the first 2 months of FY 2008 it issued determinations on 40 claims.
Our review of OJP’s completed claim determinations showed that OJP initially denied most claims based on an evaluation of the stressful and strenuous nature of the physical activity or training exercise. While many of the denials met the intent of the Hometown Heroes Act, in some cases OJP used a narrow definition of what qualified as “nonroutine” for evaluating and denying the claims. In October 2007, OJP issued a policy change that implemented a broader definition that considers all emergency calls as “nonroutine.” Since this policy change, more claims have been approved, and OJP has notified claimants of the changed standards to allow them to appeal their denials.
To further improve management of the Hometown Heroes Act claims process, we recommend that the BJA and OJP OGC take the following actions:
The BJA should finalize and issue the “Attorney General’s Guide to the Hometown Heroes Act.”
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.
OJP OGC should establish definitive performance timelines for attorneys’ reviews of PSOB claims to facilitate claims processing.
Enacted on December 15, 2003, the Hometown Heroes Act amended the Public Safety Officers’ Benefits Act of 1976, which had established a program to provide death and education benefits to spouses and children of public safety officers who die in the line of duty. Through an amendment in 1990, Congress also provided disability benefits to officers permanently and totally disabled by an injury incurred in the line of duty. See 42 U.S.C. § 3796.
Because the PSOB Program is a claims program, individuals must meet eligibility and evidentiary requirements to receive benefits. A claimant and the public safety agency involved in a claim are responsible for providing OJP with documentary evidence that demonstrates the claim meets the program’s criteria and is compensable. OJP uses the term “determination” to mean the written decision that outlines the facts of the public safety officer’s activities and death, a statement of whether the claim is approved or denied, and the reasoning for the decision.
The amount of the one-time death benefit, currently $303,064, is determined by the date of the public safety officer’s death. All approved claims are awarded the entire amount of the benefit. Since October 15, 1988, the benefit has been adjusted each year on October 1 to reflect the percentage of change in the Consumer Price Index.
The AFIP is an agency of the Department of Defense that provides pathology services to the federal government and pathology consultation, education, and research. The AFIP has a workforce of over 820 personnel, including over 120 pathologists and other scientists.
We could not fully determine the initiatives’ effects on the process because they were implemented near the conclusion of our field work. However, OJP provided the OIG with an update to the numbers of Hometown Heroes Act claims processed and pending in an e-mail in March 2008. As of March 26, 2008, OJP had received a total of 303 claims, of which 213 had been decided, 1 had been withdrawn by the claimant, and 89 were pending a determination. OJP had approved 122 claims and denied 91 claims, 8 of which were overturned on appeal to approvals. The backlog of claims OJP developed during the time the program regulations were developed was reduced from 201 to 27.
Claimants may appeal denied claims through a three-tiered process: OJP Hearing Officers, the BJA Director, and the federal courts. During the appeals process, claimants may present additional documentation and have witnesses testify on their behalf. See Appendix III for a description of the appeals process.
To be considered “stressful” the physical activity must pose or appear to pose “significant threats or hazards” or involve “reasonably foreseeable risks of such threats or hazards” and provoke or cause “an unusually-high level of alarm, fear, or anxiety.” To be considered “strenuous,” the activity must “entail a high level of physical exertion.” See 42 U.S.C. § 3796 (2006).
The PSOB Program defines “line of duty” activity as an “activity or an action that [the public safety officer] 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 be so obligated or authorized.... [The activity] is performed (as applicable) in the course of law enforcement, providing fire protection, engaging in rescue activity, providing emergency medical services, or training for one of the foregoing, and such agency (or the relevant government) legally recognizes it as such.” See 28 C.F.R. § 32.3 (2006).
Qualifying activities include law enforcement, fire suppression, rescue activity, hazardous material response, emergency medical services, disaster relief activity, or other emergency response. See 42 U.S.C. § 3796 (k)(1)(A) (2006).
OJP OGC considers this policy direction a “rebuttable presumption.” Domingo Herraiz, Director, Bureau of Justice Assistance, Public Safety Officers’ Benefits Program Policy Memorandum, re: “Nonroutine Stressful or Strenuous Physical Activity,” October 2, 2007.
Our review of the claims determinations indicated that the increase in approvals after October 2007 may not be solely attributable to the policy change. Only 8 of the 33 approved claims (and none of the 7 denied claims) involved officers responding to a call that had similar circumstances to the 19 denied claims mentioned above. These eight approved claims involved officers who suffered a heart attack or stroke before arriving at the scene, after responding to a false alarm, or after arriving on the scene and not conducting any activities. The remaining 25 approved claims had evidence showing that the public safety officer engaged in law enforcement, fire suppression, rescue, hazardous material response, emergency medical services, prison security, disaster relief, or other emergency response activities that were considered “nonroutine stressful or strenuous” and were not based on the broader application of the definition in the October 2007 memorandum.