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Changes in the Public Safety Officers' Benefits Law Improve Coverage for Emergency Responders

On December 15, 2003, President Bush signed the Hometown Heroes Survivors Benefits Act into law. This was the most recent of several laws that have amended the Public Safety Officers’ Benefits (PSOB) law since 1990. The PSOB Program is important to EMS personnel because it provides a measure of financial protection to the survivors of certain responders killed or permanently disabled in the line of duty. This article is intended to clarify how the federal PSOB Program operates, with the various changes Congress has made over the past three years.

What Is the PSOB?

The Public Safety Officers’ Benefits Program is funded by and operated out of the U.S. Department of Justice’s Office of Justice Programs. The PSOB Program provides one-time, nontaxable financial assistance payments and ongoing educational assistance to the spouses and children of public safety officers (PSOs) who are killed or permanently disabled in the line of duty.

Congress enacted the original Public Safety Officers’ Benefits Act (P.L. 94-430) in 1976 out of concern that the hazardous nature of public safety work might dissuade people from becoming firefighters or law enforcement officers. While the law applied rather narrowly to firefighters and law enforcement officers in 1976, since that time, it has been continually amended to broaden the definition of PSOs and provide additional benefits. More importantly, over time, the focus of the benefits program has shifted to include benefits from certain medical, as well as traumatic, causes of death.

The increase in eligible classes of workers and death/disability-producing causes is a reflection of a growing understanding of the hazards that confront the many types of people who respond to emergencies in the United States.

A Changing Definition of Public Safety Officer

The definition of PSO has changed over the years. Originally, the PSOB Act specified that eligible workers included only firefighters and law enforcement officers—“with or without compensation”—who worked for public agencies.

In 1985, Congress amended the PSOB law to include EMS personnel as covered workers (effective as of 1986). On October 30, 2000, the definition of PSO was extended to include FEMA employees working on a declared disaster or in certain hazardous situations, and state, local and tribal emergency management employees working under similar circumstances in cooperation with FEMA.

When the World Trade Center collapsed on September 11, 2001, Mychal Judge, a much-revered chaplain with the New York City Fire Department, was killed while administering last rites to one of the many victims of the attack. His death led Congress to amend the PSOB Act to include fire or police chaplains in the definition of PSO, retroactive to September 11, 2001.

The requirement that PSOs work for public agencies still holds. An agency is a public agency if it is a direct arm or instrumentality (e.g., a legally constituted volunteer fire department that acts as the local fire department in a given jurisdiction) of government—not a contractor—in the 50 states, the District of Columbia, and any of the territories, commonwealths or possessions of the United States. This means that EMS personnel employed by private ambulance services or private hospitals (including aeromedical personnel) are not eligible to receive program benefits, even though they may work for the official 9-1-1 responder in a given area. PSOB benefits were awarded to private ambulance service personnel killed at the World Trade Center because they responded on a mutual-aid basis at the request of the New York City Fire Department. The precedent value of these awards is unclear (given the highly charged environment surrounding the events of September 11).

Program Eligibility

To receive benefits under the PSOB Program, a PSO must have either been killed or permanently disabled in the line of duty. Line of duty is defined as “any action [which a PSO] is obligated or authorized…to perform (including social, ceremonial or athletic functions)…[and for which he is] assigned or…compensated.”

The original intent of the PSOB Act was to provide benefits for PSOs who died or were permanently disabled as a result of some traumatic injury (e.g., being shot or stabbed). Medical causes of death or disability were specifically excluded. For example, if a PSO died of a heart attack, no PSOB award would be authorized (unless it could be shown that the PSO had a carboxyhemoglobin level sufficiently high to indicate that smoke inhalation was the direct and proximate cause of death). The Hometown Heroes Survivors Benefits Act changes the “traumatic-cause rule” to include heart attacks and strokes (see below), but does not address other nontraumatic causes of death.

It is important to note that PSOB benefits were awarded to the surviving spouse of a New York City EMT who contracted HIV as a result of an occupational exposure to the blood of an HIV-positive patient. The National Association of EMTs worked hard to get the Department of Justice to recognize that a death from an infectious agent (such as HIV or some biological or chemical agent) should be considered as having been caused by an injury rather than a medical condition.

The eligibility criteria for permanent disability benefits are more confusing than for death benefits. Under the law, a PSO must be “permanently and totally disabled” by a “catastrophic injury” sustained in the line of duty on or after November 29, 1990, in order to be eligible for an award. Injuries sustained prior to that date are ineligible. A catastrophic injury is one in which the “consequences…permanently prevent an individual from performing any gainful work.” Although the definition of “gainful” implies work activity that is normally done for pay or profit, such work need not result in any pay or profit to be considered “gainful” under the law. The key here is whether the work involves doing substantial mental or physical activities, and what the individual’s functional residual capacity is (this is determined during the course of the review of the application for benefits).

Although the PSO must be medically retired from the public agency and receiving the maximum allowable disability compensation from the PSO’s jurisdiction to receive a disability benefit, mere retirement on permanent medical disability does not mean that a PSO is automatically eligible for a PSOB disability benefit. Further, the medical opinion of the PSO’s physician is considered, but is not the final factor in certifying total and permanent disability for the purposes of the award. Such determination is made following review of all documentation submitted to the PSOB Program Office.

Disqualifying Factors

There are five circumstances that will cause an otherwise qualified application for benefits to be denied:

  • Intentional misconduct by the PSO led to the death/disability, or the PSO intended to die/become injured;
  • The PSO was voluntarily intoxicated (a blood-alcohol level of 0.20 or evidence of drugs is automatic denial; a blood-alcohol level of 0.10 to 0.20 will probably lead to denial, unless it can be shown that the PSO was not acting intoxicated);
  • The PSO was performing assigned duties in a grossly negligent manner;
  • The PSO’s actions were a substantial contributing factor in the death or catastrophic injury of the PSO; or
  • The PSO was not employed in a civilian capacity.

Current Benefits

There are two types of benefits available through the PSOB Program: a financial benefit and an educational-assistance benefit.

The financial benefit is a one-time, nontaxable payment currently set at $267,494. The actual amount of the benefit is dependent on the date of the PSO’s death or catastrophic injury. The benefit amount is indexed to inflation using the Consumer Price Index and is adjusted each August for the next federal fiscal year (the federal fiscal year runs from October 1 to the following September 30).

The PSOB Program also provides up to 45 months of assistance with higher education costs of the spouses and children of eligible PSOs. Spouses may receive such benefits at any age, but children of PSOs may receive benefits only for educational expenses that were incurred prior to the child’s 27th birthday.

Educational assistance does not have to be used solely for tuition costs. It may be used for related expenses such as books, room and board, etc. The educational-assistance benefit may be used for studies at any institution authorized by the U.S. Department of Education. In October 2000, the PSOB Act was amended to permit retroactive educational benefits awards for the spouses and children of law enforcement officers killed in the line of duty on or after January 1, 1978.

Educational benefits are awarded retroactively for any semesters previously completed and on a semester-by-semester basis for each new semester of studies completed satisfactorily (with at least a 2.0 grade point average). At present, the educational assistance benefit is $695 per month of class attendance (i.e., a semester of four months would result in a payment of $2,780).

Hometown Heroes Survivors Benefits Act

As discussed earlier, the original PSOB Act required that the death or catastrophic injury be a result of some physical (i.e., trauma-related) event. Heart attacks and strokes were specifically excluded from the list of causes that would result in a PSOB award; however, benefits were permitted for deaths and injuries due to heart attacks that occurred secondary to atmospheric injuries. In other words, if a heart attack was due to smoke inhalation or asphyxiation from an oxygen-deficient or contaminated atmosphere, an award would be made.

Under the original PSOB Act, the burden of proof was on the PSO (or the PSO’s survivors) to show that the medical event was the direct result of an injury sustained in the line of duty.

The recently passed Hometown Heroes Survivors Benefits Act amended the PSOB law to include as eligible events heart attacks and strokes that occur while responding to an emergency or participating in a training exercise, while still on duty after such participation, or within 24 hours of such participation. The burden is shifted to the government to show that such heart attacks and strokes are unrelated to the performance of a PSO’s duties.

This was a major victory for emergency responder advocate organizations such as the National Association of EMTs, the International Association of Fire Fighters and the International Association of Fire Chiefs. All of these groups worked extremely hard to educate Congress that the PSOB Program should be revised to cover heart attacks and strokes, as they are the leading cause of line-of-duty deaths of emergency responders.

Application Process

Benefits are not conferred automatically. An application for benefits must be submitted to the Bureau of Justice Assistance, either by the PSO, the PSO’s survivors (or legally appointed representative) or the PSO’s agency within one year of the death or certification of disability. Extensive documentation is required. Complete guidance for applying for either the death benefit or the disability benefit will be sent to the applicant. This guidance will list the documentation required and detail the review process.

The preliminary review essentially asks three questions:

  1. Was the person in question a PSO as defined by law?
  2. Was the death or injury trauma-related or a heart attack or stroke?
  3. Did the death or injury occur in the line of duty?

If the answer to all three questions is “yes,” then the medical records are sent to a medical consultant for review. (Medical expert opinions are provided by the Armed Forces Institute of Pathology.) The PSOB Office then makes a determination based on the medical consultant’s findings. Reasonable doubt must, by law, be resolved in favor of the PSO.

An initial denial of benefits may be appealed within 30 days of receiving notification of the denial of the application. Upon appeal, the PSOB Office case file is turned over to a hearing officer. An oral hearing in front of the hearing officer may be requested by the claimant.

If an application for benefits is approved, the PSOB death or disability award is made to the PSO or his/her beneficiaries, as indicated in the decision tree in the figure at right. The Mychal Judge Police and Fire Chaplains Public Safety Officers’ Benefits Act of 2002, which broadened the definition of PSO to include police and fire chaplains, also amended the PSOB to permit the PSOB benefit to be awarded to the beneficiary designated in the PSO’s last-executed life insurance policy in cases where the PSO had no surviving spouse or children.

Children of PSOs are defined as “any natural, illegitimate, adopted or [posthumously born] child or stepchild who, at the time of the officer’s death, was 18 or under, or between 19 and 22 (inclusive) and a full-time student at an eligible educational institution, or age 18 or older and incapable of self-support due to mental or physical disabilities.”

Summary

The Public Safety Officers’ Benefits Program provides significant financial benefits and educational assistance to survivors of public safety officers killed or catastrophically injured in the line of duty. In the last three years, the program has undergone some changes which improve these benefits. It is important for emergency responders and their families to know how the program works so that they receive the maximum benefit to which they are entitled should calamity strike.

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