28 C.F.R. Subpart B—Public Safety Officers' Educational Assistance
Title 28 - Judicial Administration
Source: 62 FR 37716, July 15, 1997, unless otherwise noted.
This subpart implements the Federal Law Enforcement Dependents Assistance Act of 1996, as amended by the Police, Fire, and Emergency Assistance Act of 1998, which authorizes the payment of financial assistance for the purpose of higher education to the dependents of public safety officers who are found, under the provisions of subpart A of this part, to have died as a direct and proximate result of a personal injury sustained in the line of duty, or to have been permanently and totally disabled as the direct result of a catastrophic injury sustained in the line of duty. [64 FR 49953, Sept. 14, 1999] For purposes of this subpart: (a) The Act means the Federal Law Enforcement Dependents Assistance Act of 1996, Public Law 104–238, Oct. 3, 1996, as amended by the Police, Fire, and Emergency Assistance Act of 1998, Public Law 104–238, codified as Subpart 2 of Part L of title I of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3796d et seq. (b)(1) Bureau means the Bureau of Justice Assistance of the Office of Justice Programs, which is authorized to implement the provisions of this subpart. (2) PSOB means the Public Safety Officers' Benefits program administered by the Bureau under subpart A of this part. (3) PSOEA means the Public Safety Officers' Educational Assistance program administered by the Bureau under this subpart. (c) Public safety officer is an officer as defined in §32.2(j), with respect to whom PSOB benefits have been approved under subpart A of this part on account of the officer's death or disability in the line of duty. (d) Child means any person who was the biological, adopted, or posthumous child, or the stepchild, of a public safety officer at the time of the officer's death or disabling injury with respect to which PSOB benefits were approved under subpart A of this part. A step-child must meet the provisions set forth in §32.15. (e) Spouse means the husband or wife of a deceased or permanently and totally disabled officer at the time of the officer's death or disabling injury with respect to which PSOB benefits were approved under subpart A of this part, and includes a spouse living apart from the officer at that time for any reason. (f) Dependent means the child or spouse of any eligible public safety officer. (g) Program of education means any curriculum or any combination of unit courses or subjects pursued at an eligible educational institution, which generally is accepted as necessary to fulfill requirements for the attainment of a predetermined and identified educational, professional, or vocational objective. It includes course work for the attainment of more than one objective if, in addition to the previous requirements, all of the objectives generally are recognized as reasonably related to a single career field. (h) Eligible educational institution means a postsecondary institution which— (1) Is described in section 481 of the Higher Education Act of 1965 (20 U.S.C. 1088), as in effect on October 3, 1996, including— (i) An institution of higher education as defined in section 1201(a) of such Act (20 U.S.C. 1141(a)), (ii) A proprietary institution of higher education, (iii) A postsecondary vocational institution, or (iv) A foreign medical school; and (2) Is eligible to participate in student assistance programs under title IV of such Act (20 U.S.C. 1070 et seq.). (i) Satisfactory progress means that the dependent is maintaining satisfactory progress in the program of education, as determined under section 484(c) of the Higher Education Act of 1965, as amended (20 U.S.C. 1091(c)). (j) Educational expenses means tuition, room and board, books, supplies, fees, and transportation expenses that are consistent with the educational, professional or vocational objectives set forth by the applicant in the application for assistance. [62 FR 37716, July 15, 1997, as amended at 64 FR 49953, Sept. 14, 1999] (a) Subject to the availability of appropriations, and the provisions of the Act and this subpart, the Bureau shall provide financial assistance to a dependent who attends a program of education at an eligible educational institution and is— (1) The child of any public safety officer with respect to whom PSOB benefits have been approved under subpart A of this part; (2) The spouse of such an officer at the time of the officer's death or on the date of the officer's totally and permanently disabling injury. (b) The educational assistance under this subpart is intended for the sole purpose of defraying the costs of educational expenses and may only be used to defray such costs. A certification of educational use will be required. (c) No child shall be eligible for assistance under this subpart after the child's 27th birthday, absent a finding by the Bureau of extraordinary circumstances precluding the child from pursuing a program of education, including but not limited to the death of a relative, personal injury or illness of the student, military service, or financial hardship. (d) No dependent shall receive assistance under this subpart for a period in excess of forty-five months of full-time education or training, or a proportionate period of time for a part-time program. [62 FR 37716, July 15, 1997, as amended at 64 FR 49953, Sept. 14, 1999] (a) A person seeking assistance under this subpart shall submit an application to the Bureau in such form and containing such information as the Bureau may reasonably require. The provisions of §32.21 relating to evidence shall apply to applications under this subpart. (b) An applicant for assistance under this subpart must establish that the Bureau previously has received and approved a claim for PSOB benefits under subpart A of this part with respect to the death or disability of the parent or spouse of the applicant. (1) A spouse or child recognized as the beneficiary of a PSOB claim under subpart A of the part with respect to a deceased officer will be recognized as a spouse or child for purposes of this subpart. (2) In the case of a disabled public safety officer approved for PSOB benefits under subpart A of this part, applicants for assistance under this subpart must submit birth or marriage certificates or other proof of relationship consistent with §§32.12 (spouse) and 32.13 (child), if such evidence had not been submitted with respect to the PSOB claim. (c) The application shall describe the program of education at an eligible educational institution, and the educational expenses for which assistance is sought. A request for assistance may be for prospective assistance, for retroactive benefits pursuant to §32.35 (if applicable), or both. (d)(1) A request for prospective assistance must be accompanied by a certified copy of the official letter of acceptance from the eligible educational institution (on official letterhead) to the dependent, accepting the applicant into an educational program. (2) The applicant also shall submit to the Bureau, when it is available, the schedule of classes in which the applicant is enrolled, and which must be consistent with the educational, professional, or vocational objectives stated in the application. (e) An applicant may be represented in any proceeding before the Bureau by an attorney or other person authorized to act on behalf of the applicant pursuant to §§32.19 and 32.22. [62 FR 37716, July 15, 1997, as amended at 64 FR 49953, Sept. 14, 1999] (a) Each dependent of a Federal law enforcement officer killed in the line of duty on or after May 1, 1992, or permanently and totally disabled in the line of duty on or after October 3, 1996, and each dependent of a public safety officer killed in the line of duty on or after October 1, 1997, shall be eligible for assistance, on the same basis and subject to the limitations of this subpart, for each month in which the dependent had pursued a program of education at an eligible educational institution. (b) To be eligible for retroactive benefits, the applicant must submit a certified copy of transcripts from the educational institution covering the relevant time period. No application will be accepted more than five years from the last date the applicant pursued such program of education. (c) Subject to applicable limitations, retroactive benefits shall be in addition to prospective assistance provided under this subpart. A dependent eligible for retroactive benefits may choose to waive such assistance and apply only for prospective assistance under the provisions of this subpart. [62 FR 37716, July 15, 1997, as amended at 62 FR 39120, July 22, 1997; 64 FR 49953, Sept. 14, 1999] (a) After examining the application for prospective or retroactive assistance under the provisions and limitations of this subpart, and any additional relevant information, the Bureau shall notify the dependent in writing of the approval or disapproval of the application. (b) If the application is denied, in whole or part, the Bureau shall explain the reasons for the denial. A copy of the decision, together with information as to the right to an appeal, shall be mailed to the applicant's last known address. (a)(1) Financial assistance under this subpart shall consist of direct payments to an eligible dependent and shall be computed on the basis set forth in 38 U.S.C. 3532. (2) The dependent's status as a full-time, three-quarter-time, half-time, or less-than-half-time student will be determined in accordance with the requirements of, and must be certified by, the eligible educational institution. (b) In applying the limitations under this subpart with respect to prospective assistance, the Bureau shall consider any retroactive benefits provided to the dependent pursuant to §32.35. (c) Benefits payable under this subpart shall be in addition to any other benefit that may be due from any other source, except that, if the PSOEA assistance in combination with other benefits would exceed the total approved costs for the applicant's program of education, the assistance under this subpart will be reduced by the amount of such excess. (d) Benefits will be calculated in such a manner so as to ensure those applicants who qualify for benefits, and who are in financial need, i.e. would be unable to attend a program of study at a qualified institution of higher education in the absence of the total benefit for which they qualify, receive priority in receiving the authorized assistance. Those qualified applicants who are in financial need, as determined by BJA, will receive an amount of benefits to which they are entitled, and which allow them to attend the approved program of study. Those qualified applicants whose attendance at a program of study at an institution of higher education is not contingent on the award of benefits under this part, may receive a reduced amount of benefits in the event that funds appropriated under this program are not sufficient to award all qualified applicants the total amount of benefits to which they are otherwise entitled. [62 FR 37716, July 15, 1997, as amended at 64 FR 49954, Sept. 14, 1999] (a) No benefit shall be paid under this subpart if the Bureau determines that the dependent is not eligible for, is no longer eligible for, or is not entitled to the assistance for which application is made. Without limitation, this will include circumstances in which— (1) The benefits would exceed the applicable durational limits; (2) A dependent child has exceeded the age limit for benefits; (3) The dependent has failed to maintain satisfactory progress in the selected program of education as defined in §32.32(i); (4) The dependent is in default on any student loan obtained through Title IV of the Higher Education Act of 1965, unless the assistance under this subpart is used for repayment of the defaulted loans and the applicant provides evidence of this fact to the Bureau in the form of an approved repayment plan; or (5) The dependent is subject to a denial of federal benefits under 21 U.S.C. 862. (b) The Bureau shall deny benefits under this subpart if— (1) The educational institution attended by the dependent fails to meet a requirement for eligibility described in §32.32(h); (2) The dependent's enrollment in or pursuit of the selected program of education would fail to meet the criteria established in §32.32(g); or (3) The dependent already is qualified by previous education or training for the educational, professional or vocational objective for which the program of education is offered. An applicant may, within 30 days after notification of denial, submit a written appeal request to the Bureau. Appeals will be handled consistent with §32.24 and the appendix to this part, except that such appeals shall not be handled by oral hearing but will be conducted through a record review by an administrative hearing officer. Provisions in §32.24 and the appendix to this part relating to oral hearings shall not be applicable to appeals under this subpart. In the event that the recipient of financial assistance under this subpart fails to maintain satisfactory progress, as defined in §32.32(i), or otherwise become ineligible for assistance (other than as a result of age or the expiration of the time limit for assistance), the dependent is liable for repayment of funds awarded for prospective assistance. The Director of the Bureau may waive all or part of such repayment, based on a consideration of the circumstances and the hardship that would result from such repayment. a. Notification to Claimant of Denial These appeal procedures apply to a claimant's1 1 As used in this procedure, the word, “claimant” means a claimant for benefits or, where appropriate, the claimant's designated representative. b. Receipt of Appeal 1. When an appeal has been received, the PSOB Office will assign the case and will transmit the complete case file to a hearing officer. Assignments will be made in turn, from a standing roster, except in those cases where a case is particularly suitable to a specific hearing officer's experience. 2. The PSOB Office will inform the claimant of the name of the hearing officer, request submission of all evidence to the hearing officer, and send a copy of this appeals procedure. If an oral hearing is requested, the PSOB Office will be responsible for scheduling the hearing and making the required travel arrangements. 3. The PSOB Office will be responsible for providing all administrative support to the hearing officer. An attorney from the Office of General Counsel (OGC) who has not participated in the consideration of the claim will provide legal advice to the hearing officer. The hearing officer is encouraged to solicit the advice of the assigned OGC attorney on all questions of law. 4. Prior to the hearing, the hearing officer shall request the claimant to provide a list of expected witnesses and a brief summary of their anticipated testimony. c. Designation of Hearing Officers A. In an internal instruction the BJA Director designated a roster of hearing officers to hear PSOB appeals. 1. The hearing officers are specifically delegated the Director's authority to: (i) Issue subpoenas; (ii) Administer oaths; (iii) Examine witnesses; and (iv) Receive evidence at any place in the United States the officer may designate. d. Conduct of the Oral Hearing A. If requested, an oral hearing shall be conducted before the hearing officer in any location agreeable to the officer and the claimant. 1. The hearing officer shall call the hearing to order and advise the claimant of (1) the findings of fact and conclusions of law supporting the initial determination; (2) the nature of the hearing officer's authority; and (3) the manner in which the hearing will be conducted and a determination reached. 2. In conducting the hearing, the hearing officer shall not be bound by common law or statutory rules of evidence, by technical or formal rules or procedures, or by Chapter 5 of the Administrative Procedure Act, but must conduct the hearing in such a manner as best to ascertain the rights of the claimant. 3. 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. 4. Evidence may be presented orally or in the form of written statements and exhibits. All witnesses shall be sworn by oath or affirmation. 5. If the hearing officer believes that there is relevant and material evidence available which has not been presented at the hearing, the hearing may be adjourned and, at any time prior to the mailing of notice of the decision, reopened for the receipt of such evidence. The officer should, in any event, seek to conclude the hearing within 30 days from the first day of the hearing. 6. All hearings shall be attended by the claimant, his or her representative, and such other persons as the hearing officer deems necessary and proper. The wishes of the claimant should always be solicited before any other persons are admitted to the hearing. 7. The hearing shall be recorded, and the original of the complete transcript shall be made a part of the claims record. 8. The hearing will be deemed closed on the day the hearing officer receives the last piece of evidence relevant to the proceeding. 9. If the claimant waives the oral hearing, the hearing officer shall receive all relevant written evidence the claimant wishes to submit. The hearing officer may ask the claimant to clarify or explain the evidence submitted, when appropriate. The hearing officer should seek to close the record no later than 60 days after the claimant's request for reconsideration. e. Determination 1. A copy of the transcript shall be provided to the hearing officer, to the claimant, to the PSOB Office, and to the OGC after the conclusion of the hearing. 2. The hearing officer shall make his, or her, determination no later than the 30th day after the last evidence has been received. Copies of the determination shall be made available to the PSOB Office and the OGC for their review. 3. If either the PSOB Office or the OGC disagrees with the hearing officer's final determination, that office may request the BJA Director to review the record. If the BJA Director agrees to review the record, he or she will send the hearing officer's determination, all comments received from the PSOB Office, the OGC, or other sources (except where disclosure of the material would result in an unwarranted invasion of privacy), and notice of his or her intent to review the record to the claimant. The BJA Director will also advise the claimant of his or her opportunity to offer comments, new evidence, and argument within 30 days after the receipt of notification. The BJA Director shall seek to advise all parties of the final agency decision within 30 days after the expiration of the comment period. 4. If the PSOB Office and the OGC agree with the hearing officer's determination or the BJA Director declines to review the record, the hearing officer's determination will be the final agency decision and will be sent to the claimant by the PSOB Office immediately. 5. If the hearing officer's determination is a denial, all material that (1) contributed to the determination and (2) was not provided by the claimant shall be attached to the denial letter, except where disclosure of the material would result in a clearly unwarranted invasion of a third party's privacy. The claimant will be given an opportunity to request the BJA Director to review the record and the hearing officer's decision, and to offer comments, new evidence, or argument within 30 days. The BJA Director shall advise all parties of the final agency decision within 30 days after the expiration of the comment period. 6. The PSOB Office will provide administrative support to the hearing officer and the BJA Director throughout the appeal process.
Title 28: Judicial Administration
PART 32—PUBLIC SAFETY OFFICERS' DEATH AND DISABILITY BENEFITS
Subpart B—Public Safety Officers' Educational Assistance
§ 32.31 Purpose.
§ 32.32 Definitions.
§ 32.33 Eligibility for assistance.
§ 32.34 Application for assistance.
§ 32.35 Retroactive benefits.
§ 32.36 Action on applications for assistance.
§ 32.37 Determination of benefits.
§ 32.38 Denial of benefits.
§ 32.39 Appeals.
§ 32.40 Repayment.
Appendix to Part 32—PSOB Hearing and Appeal Procedures
