28 C.F.R. Subpart A—Death and Disability Benefits
Title 28 - Judicial Administration
(a) The purpose of this subpart is to implement the Public Safety Officers' Benefits Act of 1976, as amended, which authorizes the Bureau of Justice Assistance, Office of Justice Programs, to pay a benefit of $100,000, adjusted in accordance with §32.3(b), to specified survivors or public safety officers found to have died as the direct and proximate result of a personal injury sustained in the line of duty, and to claimant public safety officers found to have been permanently and totally disabled as the direct result of a catastrophic injury sustained in the line of duty. The Act also authorizes funds to establish national programs to assist the families of public safety officers who have died in the line of duty. (The Act is subpart 1 of part L of title I of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. 3711 et seq.) (b) The information collection requirements in this part have been approved by the Office of Management and Budget and have been assigned OMB control number 1121–0166. [57 FR 24913, June 11, 1992, as amended at 62 FR 37715, July 15, 1997] For purposes of this subpart— (a) The Act means the Public Safety Officers' Benefits Act of 1976, 42 U.S.C. 3796, et seq., Public Law 94–430, 90 Stat. 1346 (September 29, 1976), as amended. (b)(1) Bureau or BJA means the Bureau of Justice Assistance of the Office of Justice Programs; (2) PSOB means the Public Safety Officers' Benefits Program of the Bureau of Justice Assistance. (c) Line of duty means: (1) Any action which an officer whose primary function is crime control or reduction, enforcement of the criminal law, or suppression of fires is obligated or authorized by rule, regulations, condition of employment or service, or law to perform, including those social, ceremonial, or athletic functions to which the officer is assigned, or for which the officer is compensated, by the public agency he serves. For other officers, “line of duty” means any action the officer is so obligated or authorized to perform in the course of controlling or reducing crime, enforcing the criminal law, or suppressing fires; and (2) Any action which an officially recognized or designated public employee member of a rescue squad or ambulance crew is obligated or authorized by rule, regulation, condition of employment or service, or law to perform. (d) Direct and proximate, direct, or proximate means that the antecedent event is a substantial factor in the result. (e) Personal injury or injury means any traumatic injury, as well as diseases which are caused by or result from such an injury, but not occupational diseases. (f) Catastrophic injury means consequences of an injury that permanently prevent an individual from performing any gainful work. (g) Traumatic injury means a wound or a condition of the body caused by external force, including injuries inflicted by bullets, explosives, sharp instruments, blunt objects or other physical blows, chemicals, electricity, climatic conditions, infectious diseases, radiation, and bacteria, but excluding stress and strain. (h) Permanent and total disability means medically determinable consequences of a catastrophic, line-of-duty injury that permanently prevent a former pubic safety officer from performing any gainful work. (i) Occupational disease means a disease which routinely constitutes a special hazard in, or is commonly regarded as a concomitant of the officer's occupation. (j) Public safety officer means any individual serving a public agency in an official capacity, with or without compensation, as a law enforcement officer, firefighter, rescue squad member or ambulance crew member. (k) Public agency means the United States, any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, Guam, American Samoa, the Trust Territories of the Pacific Islands, the Commonwealth of the Northern Mariana Islands, and any territory or possession of the United States, or any unit of local government, department, agency, or instrumentality of any of the foregoing. (l) Public employee means an employee of a public agency. (m) Law enforcement officer means any individual involved in crime and juvenile delinquency control or reduction, or enforcement of the criminal law, including but not limited to police, corrections, probation, parole, and judicial officers. (n) Firefighter includes any individual serving as an officially-recognized or designated member of a legally-organized volunteer fire department. (o) Rescue squad or ambulance crew member means an officially recognized or designated employee or member of a rescue squad or ambulance crew. (p) Prerequisite disability certification means: (1)(i) The employing agency's official, certified award to the claimant public safety officer of its maximum disability finding and compensation, including the officer's permanent and complete separation from the employing public safety agency as the direct result of an injury sustained in the line of duty; or (ii) If the employing agency does not itself make such disability awards, then an official, certified award to the claimant public safety officer by the cognizant judicial, political or administrative agency or body of its maximum disability finding and compensation, including the officer's permanent and complete separation from the employing public safety agency as the direct result of an injury sustained in the line of duty. (2) Nothing in this paragraph (p) shall be construed to affect State, municipal, or local laws, regulations, policies, or agencies, which have been or will be established for the purpose of granting public safety officer disability pensions, including heart and lung laws and similar benefits, nor is any standard for the granting of such benefits implied in any way by this part. (q) Gainful work means work activity that is both substantial and gainful. (1) Substantial work activity means work activity that involves doing significant physical or mental activities. Work may be substantial even if it is done on a part-time basis or if the public safety officer does less, gets paid less, or has less responsibility than when he or she was a member of the former employing public safety agency. (2) Gainful work activity means work activity that is done for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized or pay is received. (r) Residual functional capacity means that which a former public safety officer can still do despite limitations imposed by a disability. Residual functional capacity is a medical assessment, a determination to be made by the Office's medical experts. Such medical determination will be based on examination of prerequisite disability certifications as specified in 28 CFR 32.2(p), and by examination of any additional case specific medical and other relevant documentation necessary to a medical assessment and determination of residual functional capacity. (s) Age means a former public safety officer's chronological age, and the extent to which that individual's age affects his or her ability to adapt to a new work situation or to do work in competition with others. PSOB will evaluate age in the context of residual functional capacity within the following general parameters: (1) Youthful means that a former public safety officer under age 50 will generally be considered able to adapt to a new work activity and environment. (2) Early middle age means that a former public safety officer, between age 50 and age 59, will generally be considered to experience significant difficulty in adapting to a new work activity and environment. (3) Middle and advanced age means that a former public safety officer age 60 or over will generally be considered to experience substantial difficulty in adapting to a new work activity or environment. (t) Education means primarily the level and content of a former public safety officer's formal schooling, including vocational training. Education also includes completion of in-service training seminars and educational programs while a member of the former employing public safety agency or while formerly employed. (u) Work experience means the skills and abilities acquired by the former public safety officer before, during and following service in the former public safety agency, suitable to use in adapting to a new work activity and environment. (v) Child means any natural, illegitimate, adopted, or posthumous child or stepchild of a deceased public safety officer who, at the time of the public safety officer's death, is: (1) Eighteen years of age or under; (2) Over eighteen years of age and a student, as defined in section 8101 of title 5, United States Code; or (3) Over eighteen years of age and incapable of self-support because of physical or mental disability. (w) Stepchild means a child of the officer's spouse who was living with, dependent for support on, or otherwise in a parent-child relationship, as set forth in §32.13(b), with the officer at the time of the officer's death. The relationship of stepchild is not terminated by the divorce, remarriage, or death of the stepchild's natural or adoptive parent. (x) Student means: (1) An individual under 23 years of age who has not completed four years of education beyond the high school level and who is regularly pursuing a full-time course of study or training at an institution which is: (i) A school or college or university operated or directly supported by the United States, or by a State or local government or political subdivision thereof; (ii) A school or college or university which has been accredited by a State or by a State recognized or nationally recognized accrediting agency or body; (iii) A school or college or university not so accredited but whose credits are accepted, on transfer, by at least three institutions which are so accredited for credit on the same basis as if transferred from an institution so accredited; or (iv) An additional type of educational or training institution as defined by the Secretary of Labor. (2) An individual is deemed to be a student during an interim between school years if the interim is not more than 4 months and if the student shows to the satisfaction of the Bureau, that the student intends to pursue a full-time course of study or training during the semester or other enrollment period immediately after the interim or during periods of reasonable duration during which, in the judgment of the Bureau, the student is prevented by factors beyond the student's control from pursuing the student's education. A student whose 23rd birthday occurs during a semester or other enrollment period is deemed a student until the end of the semester or other enrollment period. (y) Spouse means the husband or wife of the deceased officer at the time of the officer's death, and includes a spouse living apart from the officer at the time of the officer's death for any reason. (z) Dependent means any individual who was substantially reliant for support upon the income of the deceased public safety officer. (aa) Intoxication means a disturbance of mental or physical faculties: (1) Resulting from the introduction of alcohol into the body as evidenced by— (i) A blood alcohol level of .20 per centum or greater; or (ii) A blood alcohol level of at least .10 per centum unless the Bureau receives convincing evidence that the public safety officer was not acting in an intoxicated manner immediately prior to the officer's death or catastrophic personal injury which resulted in permanent and total disability; or (2) Resulting from drugs or other substances in the body. (bb) Rescue means the provision of first response emergency medical treatment, transportation of persons in medical distress and under emergency conditions to medical care facilities, or search and rescue assistance in locating and extracting from danger persons lost, missing, or in imminent danger of bodily harm. (cc) Support means food, shelter, clothing, ordinary medical expenses, and other ordinary and customary items for maintenance of the person supported. [57 FR 24913, June 11, 1992, as amended at 61 FR 33657, June 28, 1996; 62 FR 37715, July 15, 1997] (a) When the Bureau determines under this part, that a public safety officer, as defined in §32.2(h) has died or become permanently and totally disabled as the direct and proximate result of an injury sustained in the line of duty, the Bureau shall pay a benefit of $100,000, adjusted in accordance with §32.3 (b) or (c), subject to the conditions set forth in §32.6. Payment of death benefits shall be made in the order specified in §32.10. (b) For the death benefit program, on October 1 of each fiscal year after October 15, 1988, the Bureau shall adjust the level of the death benefit payable immediately before such October 1 under paragraph (a) of this section, to reflect the annual percentage change in the Consumer Price Index for All Urban Consumers, published by the Bureau of Labor Statistics, occurring in the 1-year period ending on June 1 immediately preceding such October 1. (c) For the disability benefit program, the annual cost of living adjustment shall be made in accordance with the effective date of the enactment of this program, viz. November 29, 1990. (d) The amount payable under paragraph (a) of this section with respect to the death or permanent and total disability of a public safety officer shall be the amount payable under paragraphs (b) or (c) of this section as of the date of death or permanent and total disability of such officer, as the case may be. The Bureau shall resolve any reasonable doubt arising from the circumstances of the officer's death or permanent and total disability in favor of payment of the death or disability benefit. The Bureau will give substantial weight to the evidence and findings of fact presented by State, local, and Federal administrative and investigative agencies. The Bureau will request additional assistance or conduct its own investigation when it believes that the existing evidence does not provide the Bureau with a rational basis for a decision on a material element of eligibility. (a) No benefit shall be paid— (1) If the death or permanent and total disability was caused by the intentional misconduct of the public safety officer or by such officer's intention to bring about the officer's death or injury; (2) If the public safety officer was voluntarily intoxicated at the time of the officer's death or catastrophic personal injury; (3) If the public safety officer was performing the officer's duties in a grossly negligent manner at the time of the officer's death or catastrophic personal injury; (4) To any individual who would otherwise be entitled to a benefit under this part if such individual's actions were a substantial contributing factor to the death of the public safety officer; or (5) To any individual employed in a capacity other than a civilian capacity. (b) The Act applies to State and local public safety officers killed in the line of duty on or after September 29, 1976; federal public safety officers killed on or after October 12, 1984; rescue squad or public emergency employees killed in the line of duty on or after October 15, 1986; and to each of these classes of officers permanently and totally disabled as a result of a catastrophic personal injury received in the line of duty on or after November 29, 1990. The Bureau will consider at least the following factors in determining whether death or permanent and total disability was caused by the intentional misconduct of the officer: (a) Whether the conduct was in violation of rules and regulations of the employer, or ordinances and laws, and— (1) Whether the officer knew the conduct was prohibited and understood its import; (2) Whether there was a reasonable excuse for the violation; or (3) Whether the rule violated is habitually observed and enforced; (b) Whether the officer had previously engaged in similar misconduct; (c) Whether the officer's intentional misconduct was a substantial factor in the officer's death or permanent and total disability; and (d) Whether there was an intervening force which would have independently caused the officer's death or permanent and total disability and which would not otherwise prohibit payment of a benefit pursuant to this part. The Bureau will consider at least the following factors in determining whether the officer intended to bring about the officer's own death or injury: (a) Whether the death or permanent and total disability was caused by insanity, through an uncontrollable impulse or without conscious volition to produce death or injury; (b) Whether the officer had a prior history of attempted suicide or attempts to cause physical incapacitation; (c) Whether the officer's intent to bring about the officer's death or injury was a substantial factor in the officer's death or permanent and total disability; and (d) The existence of an intervening force or action which would have independently caused the officer's death or permanent and total disability and which would not otherwise prohibit payment of a benefit pursuant to this part. The Bureau will apply the following evidentiary factors in cases in which voluntary intoxication is at issue in an officer's death or permanent and total disability. (a) The primary factor in determining intoxication at the time the injury occurred, from which death or permanent and total disability resulted, is the blood alcohol level, including a post-mortem blood alcohol level in the case of a death. (1) Benefits will be denied if a deceased or permanently and totally disabled public safety officer had a blood alcohol level of .20 per centum or greater; or (2) Benefits will be denied if a deceased or permanently and totally disabled public safety officer had a blood alcohol level of at least .10 per centum but less than .20 per centum unless the Bureau receives convincing evidence that the public safety officer was not acting in an intoxicated manner immediately prior to death or the receipt of a catastrophic personal injury. (b) Convincing evidence includes, but is not limited to: Affidavits or investigative reports demonstrating that the deceased or permanently and totally disabled public safety officer's speech, movement, language, emotion, and judgment were normal (for the officer) immediately prior to the injury which caused the death or the permanent and total disability. (c) In determining whether an officer's intoxication was voluntary, the Bureau will consider: (1) Whether, and to what extent, the officer had a prior history of voluntary intoxication while in the line of duty; (2) Whether and to what degree the officer had previously used the intoxicant in question; and (3) Whether the intoxicant was prescribed medically and was taken within the prescribed dosage.
Title 28: Judicial Administration
PART 32—PUBLIC SAFETY OFFICERS' DEATH AND DISABILITY BENEFITS
Subpart A—Death and Disability Benefits
§ 32.1 Purpose and OMB control number.
§ 32.2 Definitions.
Officers Covered
§ 32.3 Coverage.
§ 32.4 Reasonable doubt of coverage.
§ 32.5 Findings of State, local, and Federal agencies.
§ 32.6 Conditions on payment.
§ 32.7 Intentional misconduct of the officer.
§ 32.8 Intention to bring about death or permanent and total disability.
§ 32.9 Voluntary intoxication.
Beneficiaries
§ 32.10 Order of priority.
(a) When the Bureau had determined that a death benefit may be paid according to the provisions of this subpart, a benefit of $100,000, adjusted in accordance with §32.3(b), shall be paid in the following order of precedence:
(1) If there is no surviving child of such officer, to the surviving spouse of such officer;
(2) If there are a surviving child or children and a surviving spouse, one-half to the surviving child or children of such officer in equal shares, and one-half to the surviving spouse;
(3) If there is no surviving spouse, to the surviving child or children of such officer in equal shares; or
(4) If none of the above in paragraphs (a)(1) through (3) of this section to the surviving parent, or to the surviving parents in equal shares.
(b) If no one qualifies as provided in paragraph (a) of this section, no benefit shall be paid.
[57 FR 24913, June 11, 1992, as amended at 62 FR 37715, July 15, 1997]
§ 32.11 Contributing factor to death.
(a) No death benefit shall be paid to any person who would otherwise be entitled to a death benefit under this part if such person's intentional actions were a substantial contributing factor to the death of the public safety officer.
(b) When a potential beneficiary is denied death benefits under paragraph (a) of this section, the benefits shall be paid to the remaining eligible survivors, if any, of the officer as if the potential beneficiary denied death benefits did not survive the officer.
§ 32.12 Determination of relationship of spouse.
(a) Marriage should be established by one (or more) of the following types of evidence in the following order of preference:
(1) Copy of the public record of marriage, certified or attested, or by an abstract of the public record, containing sufficient data to identify the parties, the date and place of the marriage, and the number of prior marriages by either party if shown on the official record, issued by the officer having custody of the record or other public official authorized to certify the record, or a certified copy of the religious record of marriage;
(2) Official report from a public agency as to a marriage which occurred while the officer was employed with such agency;
(3) The affidavit of the clergyman or magistrate who officiated;
(4) The original certificate of marriage accompanied by proof of its genuineness and the authority of the person to perform the marriage;
(5) The affidavits or sworn statements of two or more eyewitnesses to the ceremony;
(6) In jurisdictions where “common law” marriages are recognized, the affidavits or certified statements of the spouse setting forth all of the facts and circumstances concerning the alleged marriage, such as the agreement between the parties at the beginning of their cohabitation, the period of cohabitation, places and dates of residences, and whether children were born as the result of the relationship. This evidence should be supplemented by affidavits or certified statements from two or more persons who know as the result of personal observation the reputed relationship which existed between the parties to the alleged marriage including the period of cohabitation, places of residences, whether the parties held themselves out as husband and wife and whether they were generally accepted as such in the communities in which they lived; or
(7) Any other evidence which would reasonably support a belief by the Bureau that a valid marriage actually existed.
(b) BJA will not recognize a claimant as a “common law” spouse under §32.12(a)(6) unless the State of domicile recognizes him or her as the spouse of the officer.
(c) If applicable, certified copies of divorce decrees of previous marriages or death certificates of the former spouses of either party must be submitted.
§ 32.13 Determination of relationship of child.
(a) In general. A claimant is the child of a public safety officer if the individual's birth certificate shows the officer as the individual's parent.
(b) Alternative. If the birth certificate does not show the public safety officer as the claimant's parent, the sufficiency of the evidence will be determined in accordance with the facts of a particular case. Proof of the relationship may consist of—
(1) An acknowledgement in writing signed by the public safety officer; or
(2) Evidence that the officer has been identified as the child's parent by a judicial decree ordering the officer to contribute to the child's support or for other purposes; or
(3) Any other evidence which reasonably supports a finding of a parent-child relationship, such as—
(i) A certified copy of the public record of birth or a religious record showing that the officer was the informant and was named as the parent of the child; or
(ii) Affidavits or sworn statements of persons who know that the officer accepted the child as his or her own; or
(iii) Information obtained from a public agency or public records, such as school or welfare agencies, which shows that with the officer's knowledge the officer was named as the parent of the child.
(c) Adopted child. Except as may be provided in paragraph (b) of this section, evidence of relationship must be shown by a certified copy of the decree of adoption and such evidence as may be necessary. In jurisdictions where petition must be made to the court for release of adoption documents or information, or where the release of such documents or information is prohibited, a revised birth certificate will be sufficient to establish the fact of adoption.
(d) Stepchild. The relationship of a stepchild to the deceased officer shall be demonstrated by—
(1)(i) Evidence of birth to the spouse of the officer as required by paragraphs (a) and (b) of this section; or
(ii) If adopted by the spouse, evidence of adoption as required by paragraph (c) of this section; or
(iii) Other evidence, such as that specified in §32.13(b), which reasonably supports the existence of a parent-child relationship between the child and the spouse;
(2) Evidence that the stepchild was either—
(i) Living with; or
(ii) Dependent for support, as set forth in §32.15; or
(iii) In a parent-child relationship, as set forth in §32.13(b), with the officer at the time of the officer's death; and
(3) Evidence of the marriage of the officer and the spouse, as required by §32.12.
§ 32.14 Determination of relationship of parent.
(a) In general. A claimant is the parent of a public safety officer if the officer's birth certificate shows the claimant as the officer's parent.
(b) Alternative. If the birth certificate does not show the claimant as the officer's parent, proof of the relationship may be shown by—
(1) An acknowledgement in writing signed by the claimant before the officer's death; or
(2) Evidence that the claimant has been identified as the officer's parent by judicial decree ordering the claimant to contribute to the officer's support or for other purposes; or
(3) Any other evidence which reasonably supports a finding of a parent-child relationship, such as:
(i) A certified copy of the public record of birth or a religious record showing that the claimant was the informant and was named as the parent of the officer; or
(ii) Affidavits or sworn statements of persons who know the claimant had accepted the officer as the claimant's child; or
(iii) Information obtained from a public agency or public records, such as school or welfare agencies, which shows that with the officer's knowledge the claimant had been named as the parent of the child.
(c) Adoptive parent. Except as provided in paragraph (b) of this section, evidence of relationship must be shown by a certified copy of the decree of adoption and such other evidence as may be necessary. In jurisdictions where petition must be made to the court for release of adoption documents or information, or where release of such documents or information is prohibited, a revised birth certificate showing the claimant as the officer's parent will suffice.
(d) Step-parent. The relationship of a step-parent to the deceased officer shall be demonstrated by—
(1)(i) Evidence of the officer's birth to the spouse of the step-parent as required by §32.13 (a) and (b); or
(ii) If adopted by the spouse or the step-parent, proof of adoption as required by §32.13(c); or
(iii) Other evidence, such as that specified in paragraph (b) of this section, which reasonably supports a parent-child relationship between the spouse and the officer; and
(2) Evidence of the marriage of the spouse and the step-parent, as required by §32.12.
§ 32.15 Determination of dependency.
(a) To be eligible for a death benefit under the Act, a stepchild not living with the deceased officer at the time of the officer's death shall demonstrate that he or she was substantially reliant for support upon the income of the officer.
(b) The claimant stepchild shall demonstrate that he or she was dependent upon the decedent at either the time of the officer's death or of the personal injury that was the substantial factor in the officer's death.
(c) The claimant stepchild shall demonstrate dependency by submitting a signed statement of dependency within a year of the officer's death. This statement shall include the following information—
(1) A list of all sources of income or support for the twelve months preceding the officer's injury or death;
(2) The amount of income or value of support derived from each source listed; and
(3) The nature of support provided by the each source.
(d) Generally, the Bureau will consider a stepchild “dependent” if he or she was reliant on the income of the deceased officer for over one-third of his or her support.
Interim and Reduced Death Payments
§ 32.16 Interim payment in general.
(a) Whenever the Bureau determines upon a showing of need and prior to final action that the death of a public safety officer is one with respect to which a benefit will probably be paid, the Bureau may make an interim benefit payment not exceeding $3,000 to the individual entitled to receive a benefit under §§32.10 through 32.15 of this part.
(b) The amount of an interim payment under this subpart shall be deducted from the amount of any final benefit paid to such individual.
[57 FR 24913, June 11, 1992, as amended at 62 FR 37715, July 15, 1997]
§ 32.17 Repayment and waiver of repayment.
Where there is no final benefit paid, the recipient of any interim benefit paid under §32.16 shall be liable for repayment of such amount. The Bureau may waive all or part of such repayment considering for this purpose the hardship which would result from such repayment.
§ 32.18 Reduction of payment.
(a) The benefit payable under this part shall be in addition to any other benefit that may be due from any other source, except—
(1) Payments authorized by section 12(k) of the Act of September 1, 1916, as amended (D.C. Code, Sec. 4–622);
(2) Benefits authorized by section 8191 of title 5, United States Code, providing compensation for law enforcement officers not employed by the United States killed in connection with the commission of a crime against the United States. Such beneficiaries shall only receive benefits under such section 8191 that are in excess of the benefits received under this part; and
(3) The amount of the interim benefit payment made to the claimant pursuant to §32.16.
(b) No benefit paid under this part shall be subject to execution or attachment.
(c) No benefit is payable under this part:
(1) With respect to the death of a public safety officer if a benefit is paid under this part with respect to the disability of such public safety officer; or
(2) With respect to the disability of a public safety officer if a benefit is payable under this part with respect to the death of such public safety officer.
Filing and Processing of Claims
§ 32.19 Persons executing claims.
(a) The Bureau shall determine who is the proper party to execute a claim in accordance with paragraphs (a) (1) through (3) of this section—
(1) The claim shall be executed by the claimant or the claimant's legally designated representative if the claimant is mentally competent and physically able to execute the claim.
(2) If the claimant is mentally incompetent or physically unable to execute the claim and—
(i) Has a legally appointed guardian, committee, or other representative, the claim may be executed by such guardian, committee, or other representative; or
(ii) Is in the care of an institution, the claim may be executed by the manager or principal officer of such institution.
(3) For good cause shown, such as the age or prolonged absence of the claimant, the Bureau may accept a claim executed by a person other than one described in paragraphs (a)(1) and (a)(2) of this section.
(b) Where the claim is executed by a person other than the claimant, such person shall, at the time of filing the claim or within a reasonable time thereafter, file evidence of such person's authority to execute the claim on behalf of such claimant in accordance with paragraph (b) (1) and (2) of this section—
(1) If the person executing the claim is the legally-appointed guardian, committee, or other legally-designated representative of such claimant, the evidence shall be a certificate executed by the proper official of the court of appointment.
(2) If the person executing the claim is not such a legally designated representative, the evidence shall be a statement describing such person's relationship to the claimant or the extent to which such person has the care of such claimant or such person's position as an officer of the institution of which the claimant is an inmate or patient. The Bureau may, at any time, require additional evidence to establish the authority of any such person to file or withdraw a claim.
§ 32.20 Claims.
(a) Claimants are encouraged to submit their claims on OJP Form 3650/5 for death benefits, or the disability benefits claim form, which can be obtained from: Public Safety Officers' Benefits Program, Bureau of Justice Assistance, Washington, DC 20531.
(b) Where an individual files OJP Form 3650/5 for death benefits, or the disability benefits claim form, or other written statement with the Bureau which indicates an intention to claim benefits, the filing of such written statement shall be considered to be the filing of a claim for benefits.
(c) A claim by a permanently and totally disabled public safety officer or on behalf of survivor of a deceased public safety officer shall be filed within 1 year after the date of death or prerequisite disability certification unless the time for filing is extended by the Director for good cause shown.
(d) Except as otherwise provided in this part, the withdrawal of a claim, the cancellation of a request for such withdrawal, or any notice provided for pursuant to the regulations in this part, shall be in writing and shall be signed by the claimant or the person legally designated to execute a claim under §32.19.
§ 32.21 Evidence.
(a) A claimant for any benefit or fee under the Act and this part shall submit such evidence of eligibility or other material facts as is specified by this part. The Bureau may require at any time additional evidence to be submitted with regard to entitlement, the right to receive payment, the amount to be paid, or any other material issue.
(b) Whenever a claimant for any benefit or fee under the Act and this part has submitted no evidence or insufficient evidence of any material issue or fact, the Bureau shall inform the claimant what evidence is necessary for a determination as to such issue or fact and shall request the claimant to submit such evidence within a reasonably specified time. The claimant's failure to submit evidence on a material issue or fact as requested by the Bureau shall be a basis for determining that the claimant fails to satisfy the conditions required to award a benefit or fee or any part thereof.
(c) In cases where a copy of a record, document, or other evidence, or an excerpt of information therefrom, is acceptable as evidence in lieu of the original, such copy or excerpt shall, except as may otherwise clearly be indicated thereon, be certified as a true and exact copy or excerpt by the official custodian of such record, or other public official authorized to certify the copy.
§ 32.22 Representation.
(a) A claimant may be represented in any proceeding before the Bureau by an attorney or other person authorized to act on behalf of the claimant pursuant to §32.19.
(b) No contract for a stipulated fee or for a fee on a contingent basis will be recognized. Any agreement between a representative and a claimant in violation of this subsection is void.
(c) Any individual who desires to charge or receive a fee for services rendered for an individual in any application or proceeding before the Bureau must file a written petition therefore in accordance with paragraph (e) of this section. The amount of the fee the petitioner may charge or receive, if any, shall be determined by the Bureau on the basis of the factors described in paragraphs (e) and (g) of this section.
(d) Written notice of a fee determination made under this section shall be mailed to the representative and the claimant at their last known addresses. Such notice shall inform the parties of the amount of the fee authorized, the basis of the determination, and the fact that the Bureau assumes no responsibility for payment.
(e) To obtain approval of a fee for services performed before the Bureau, a representative, upon completion of the proceedings in which the representative rendered services, must file with the Bureau a written petition containing the following information—
(1) The dates the representative's services began and ended;
(2) An itemization of services rendered with the amount of time spent in hours, or parts thereof;
(3) The amount of the fee the representative desires to charge for services performed;
(4) The amount of fee requested or charged for services rendered on behalf of the claimant in connection with other claims or causes of action arising from the officer's death or permanent and total disability before any State or Federal court or agency;
(5) The amount and itemization of expenses incurred for which reimbursement has been made or is expected;
(6) The special qualifications which enabled the representative to render valuable services to the claimant (this requirement does not apply where the representative is an attorney); and
(7) A statement showing that a copy of the petition was sent to the claimant and that the claimant was advised of the claimant's opportunity to submit his or her comments on the petition to BJA within 20 days.
(f) No fee determination will be made by the Bureau until 20 days after the date the petition was sent to the claimant. The Bureau encourages the claimant to submit comments on the petition to the Bureau during the 20-day period.
(g) In evaluating a request for approval of a fee, the purpose of the public safety officers' benefits program—to provide a measure of economic security for the beneficiaries thereof—will be considered, together with the following factors:
(1) The services performed (including type of service);
(2) The complexity of the case;
(3) The level of skill and competence required to render the services;
(4) The amount of time spent on the case;
(5) The results achieved;
(6) The level of administrative review to which the claim was carried within the Bureau and the level of such review at which the representative entered the proceedings;
(7) The amount of the fee requested for services rendered, excluding the amount of any expenses incurred, but including any amount previously authorized or requested;
(8) The customary fee for this kind of service; and
(9) Other awards in similar cases.
(h) In determining the fee, the Bureau shall consider and add thereto the amount of reasonable and unreimbursed expenses incurred in establishing the claimant's case. No amount of reimbursement shall be permitted for expenses incurred in obtaining medical or documentary evidence in support of the claim which had previously been obtained by the Bureau, and no reimbursement shall be allowed for expenses incurred in establishing or pursuing the representative's application for approval of the fee.
Determination, Hearing, and Review
§ 32.23 Finding of eligibility or ineligibility.
Upon making a finding of eligibility, the Bureau shall notify each claimant of its disposition of his or her claim. In those cases where the Bureau has found the claimant to be ineligible for a benefit, the Bureau shall specify the reasons for the finding. The finding shall set forth the findings of fact and conclusions of law supporting the decision. A copy of the decision, together with information as to the right to a hearing and review shall be mailed to the claimant at his or her last known address.
§ 32.24 Request for a hearing.
(a) A claimant may, within thirty (30) days after notification of ineligibility by the Bureau, request the Bureau to reconsider its finding of ineligibility. The Bureau shall provide the claimant the opportunity for an oral hearing which shall be held within 60 days after the request for reconsideration. The claimant may waive the oral hearing and present written evidence to the Bureau within 60 days after the request. The request for hearing shall be made to the Director, Public Safety Officers' Benefits Program, BJA, Washington, DC 20531.
(b) If requested, the oral hearing shall be conducted before a hearing officer authorized by the Bureau to conduct the hearing in any location agreeable to the claimant and the hearing officer.
(c) In conducting the hearing, the hearing officer shall not be bound by common law or statutory rules of evidence, by technical or formal rules of procedure, or by chapter 5 of the Administrative Procedure Act (5 U.S.C. 551 et seq.), but must conduct the hearing in such manner as to best ascertain the rights of the claimant. For this purpose, the hearing officer shall receive such relevant evidence as may be introduced by the claimant and shall, in addition, receive such other evidence as the hearing officer may determine to be necessary or useful in evaluating the claim. Evidence may be presented orally or in the form of written statements and exhibits. The hearing shall be recorded, and the original of the complete transcript shall be made a part of the claims record.
(d) Pursuant to sections 805, 806 and 1205(a) of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. 3786, 3787 and 3796c, the hearing officer may, whenever necessary:
(1) Issue subpoenas;
(2) Administer oaths;
(3) Examine witnesses; and
(4) Receive evidence at any place in the United States.
(e) If the hearing officer believes that there is relevant and material evidence available which has not been presented at the hearing, the hearing officer may adjourn the hearing and, at any time prior to mailing the decision, reopen the hearing for the receipt of such evidence.
(f) A claimant may withdraw his or her request for a hearing at any time prior to the mailing of the decision by written notice to the hearing officer so stating, or by orally so stating at the hearing. A claimant shall be deemed to have abandoned his or her request for a hearing if he or she fails to appear at the time and place set for the hearing, and does not, within 10 days after the time set for the hearing, show good cause for such failure to appear.
(g) The hearing officer shall, within 30 days after receipt of the last piece of evidence relevant to the proceeding, make a determination of eligibility. The determination shall set forth the findings of fact and conclusions of law supporting the determination. The hearing officer's determination shall be the final agency decision, except when it is reviewed by the Director under paragraphs (h) or (i) of this section.
(h)(1) The Director may, on his or her own motion, review a determination made by a hearing officer. If the BJA Director decides to review the determination, he or she shall:
(i) Inform the claimant of the hearing officer's determination and the BJA Director's decision to review that determination; and
(ii) Give the claimant 30 days to comment on the record and offer new evidence or argument on the issues in controversy.
(2) The BJA Director, in accordance with the facts found on review, may affirm or reverse the hearing officer's determination. The BJA Director's determination shall set forth the findings of fact and conclusions of law supporting the determination. The BJA Director's determination shall be the final agency decision.
(i)(1) A claimant determined ineligible by a hearing officer under paragraph (g) of this section may, within 30 days after notification of the hearing officer's determination:
(i) Request the BJA Director to review the record and the hearing officer's determination; and
(ii) Comment on the record and offer new evidence or argument on the issues in controversy.
(2) The BJA Director shall make the final agency determination of eligibility within 30 days after expiration of the comment period. The notice of final determination shall set forth the findings of fact and conclusions of law supporting the determination. The BJA Director's determination shall be the final agency decision.
(j) No payment of any portion of a death or permanent and total disability benefit, except interim death benefits payable under §32.16, shall be made until all hearings and reviews which may affect that payment have been completed.
National Programs for Families of Public Safety Officers Who Have Died in the Line of Duty
§ 32.25 National programs.
The Director is authorized and directed to use up to $150,000 of the funds appropriated for this part to establish national programs to assist the families of public safety officers who have died in the line of duty.
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