2 October 2007
The Honorable Patrick J. Leahy
Committee on the Judiciary
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman,
I am writing on behalf of the Fraternal Order of Police to express our sincere appreciation for your decision to hold a hearing this week on the implementation of the Hometown Heroes Survivors Benefits Act of 2003 (Pub. L. No. 108-1 82).
The FOP was proud to have worked so long and so closely with you to develop the original legislation. Its passage in 2003 was due in no small part to your steady and forceful leadership in Committee, on the floor, and in conference. Our cooperative efforts resulted in a Federal statute that makesor should makea real difference in the lives of the families left behind by a law enforcement officer that dies in the line duty from a heart attack or stroke. Regrettably, the regulations promulgated pursuant to this statute have undermined the intent of Congress and have caused the rejection of an overwhelming number of claims filed under the Act.
To begin with, the promulgation of these regulations governing the implementation of the law was unacceptably long. It took nearly three years for the final regulations to go into effect, allowing Bureau of Justice Assistance (BJA) staff to accumulate more than two hundred claims upon which they did not act. The regulations have been in place for more than a year now, yet only sixty-two (62) claims have been acted on by the BJA and an incredible fifty (50) claims have been denied. More than two hundred claims are still pendingthat is two hundred families who lost a loved one in service to their community, but cannot get the Federal government to act on their claims. This is simply unacceptable.
The regulations themselves are inherently flawed and are not only inconsistent with the intent of Congressthey stand the law on its head. For example, the BJA is interpreting the rebuttable presumption created by the Act as not being a rebuttable presumption at all. The new regulations essentially require the survivor family members to show, by a preponderance of the evidence, that competent medical evidence indicates that the officer's on duty actions were a substantial factor in causing his fatal heart attack or stroke. This is absolutely contrary to Congressional intent! Indeed, the definitions for key terms as defined in current regulationsincluding "competent medical evidence to the contrary," "engagement in a situation," "nonroutine strenuous physical activity," "nonroutine stressful or strenuous physical activity," and
"nonroutine stressfull physical activity"do not conform with either the spirit of the law or with the expressed intent of Congress.
The FOP has been reluctant to advocate for additional legislationthe intent of Congress on this issue is abundantly clear. The problem is the failure to execute that intent. Given the inexcusable amount of time it took to complete the rulemaking progress, and given the rejection of many of the recommendations put forward by the FOP and other stakeholder groups, the FOP has little confidence that revisions to the existing regulations would improve them in a timeframe acceptable to the survivor families. However, the Director of the Bureau of Justice Assistance does have the authority to issue directives clarifying the interpretation of many of the law's key terms, which could be incorporated into the claim review process. Why this has not been done in the last twelve months is certainly a question the Director should answer.
In addition, the FOP is very concerned that the BJA is viewing the Hometown Heroes Act as separate and apart from the Public Safety Officers' Benefit (PSOB) claim. Indeed, on the five page "Frequently Asked Questions" paper published by the Office of Justice Programs, it refers to the "'regular'" PSOB implementing provisions and those specifically implementing the Hometown Heroes Act." Mr. Chairman, the Hometown Heroes Act was an expansion of the PSOB program and should not be considered separate from the "regular" program. I was troubled by this when the document was published in May of this year, and remain certain that this distinction, which exists only in the minds of the leadership at the BJA, is at the root of all difficulties related to the proper implementation of this Act.
You and the Committee should be aware, however, that there have been a number of individuals within the Justice Department who have done a great deal of work in an attempt to remedy the problems experienced by survivor families. Just two weeks prior to announcing his resignation,
then U.S. Attorney General Alberto R. Gonzales announced in Louisville, Kentucky, at the FOP'S National Biennial Conference, that he was ordering the problems be fixed immediately.
Similarly, the former Assistant Attorney General for the Office of Justice Programs, Regina B. Schofield, who was not involved with the promulgation of the flawed regulations, worked extraordinarily hard to ameliorate the situation. And, just recently, Acting U.S. Attorney General Peter D. Keisler held a conference call with the FOP and other stakeholder groups and we were very encouraged by his obvious commitment to fixing these problems.
I want to thank you for holding this hearing and for giving those families who have suffered directly an opportunity to tell their stories. We have every confidence in your leadership on this matter and I look forward to working with you and your staff to resolve the problems which exist with the implementation of this law. If I can be of any further assistance, please do not hesitate to contact me or Executive Director Jim Pasco in my Washington office.