[Senate Hearing 110-310]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-310
 
    JUSTICE DENIED: IMPLEMENTATION OF THE HOMETOWN HEROES SURVIVORS 
                              BENEFITS ACT 

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 4, 2007

                               __________

                          Serial No. J-110-46

                               __________

         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director




















































                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware, prepared statement...................................    24
Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................    16
Cornyn, Hon. John, a U.S. Senator from the State of Texas........     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................    48
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................     8

                               WITNESSES

Falkouski, Susan, Rensselaer, New York...........................     9
Herraiz, Domingo S., Director, Bureau of Justice Assistance, 
  Office of Justice Programs, Department of Justice, Washington, 
  D.C............................................................    11
Schwantes, Athena, Fayetteville, Georgia.........................     4
Tilton, Jo Ann, Katy, Texas......................................     6

                         QUESTIONS AND ANSWERS

Responses of Domingo Herraiz to questions submitted by Senator 
  Leahy..........................................................    18

                       SUBMISSIONS FOR THE RECORD

Department of Justice, Office of Justice Programs, Bureau of 
  Justice Assistance, Washington, D.C.:
    Hope D. Janke, Director, Public Safety Officers Benefits 
      Office, letter and attachment..............................    26
    Memoranda, October 2, 2007...................................    29
Falkouski, Susan, Rensselaer, New York, statement................    31
Fraternal Order Of Police, Chuck Canterbury, National President, 
  Washington, D.C., letter.......................................    33
Herraiz, Domingo S., Director, Bureau of Justice Assistance, 
  Office of Justice Program, Washington, D.C., statement.........    35
International Association of Fire Chiefs (IAFC), Steven P. 
  Westermann, President, Fairfax, Virginia, letter...............    47
Schwantes, Athena, Fayetteville, Georgia, statement..............    50
Sergeants Benevolent Association, Police Department, City of New 
  York, Ed Mullins, President, New York, New York, letter........    52
Tilton, Jo Ann, Katy, Texas, statement...........................    54


    JUSTICE DENIED: IMPLEMENTATION OF THE HOMETOWN HEROES SURVIVORS 
                              BENEFITS ACT

                              ----------                              


                       THURSDAY, OCTOBER 4, 2007

                              United States Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, Pursuant to notice, at 2:41 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Patrick J. 
Leahy, Chairman of the Committee, presiding.
    Present: Senators Schumer, Cardin, and Cornyn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good afternoon. I apologize for the voice. 
There are some who will probably be delighted to see it 
disappear. But it's allergies more than anything else.
    I'm glad you're here. I know that many of you, the reasons 
you're here, you wish you didn't have to be. I commend your 
courage in being here.
    In November of 2003, Congress unanimously passed the 
Hometown Heroes Survivors Benefits Act. This was legislation 
intended to improve the Public Safety Officers' Benefits 
program by allowing survivors of first responders who suffered 
fatal heart attacks or strokes while participating in non-
routine physical activities to qualify for Federal survivor's 
benefits.
    I remember that December when, with great fanfare, the 
President signed the legislation into law. There were a large 
group of firefighters and law enforcement officers. I commended 
him for doing that.
    But unfortunately, once the TV lights turned off, cases 
started piling up to the Department of Justice. My 
frustrations, and the frustrations of the surviving families in 
the first responder community grew daily. We could not 
understand the Justice Department's glacial processing of these 
applications.
    We're going to hear a sampling of those deep and widespread 
frustrations today. More than 3 years passed before the Justice 
Department released its final implementation rule last year. 
Three years. They delayed implementation a while. They actually 
disregarded the clear will of Congress, Republicans and 
Democrats alike, to grant these surviving families death 
benefits in a timely and fair manner.
    It is no overstatement to conclude that they worked to 
erect obstacles between this program and those surviving 
families in not trying to find a way to help them. I think the 
thickets of red tape are painful indignities to these heroes 
and their families. They are also an offense to our moral 
obligation.
    Now, nearly 4 years after the Hometown Heroes bill became 
law, the Justice Department has approved only 12 Hometown 
Heroes claims, they denied 50 families this important benefit, 
and they've left 240 applications unanswered. I don't think 
it's any way to treat these people. It makes me think too much 
of what has happened to a lot of the returning soldiers from 
Iraq and Afghanistan and what we saw when the press looked into 
how they were being treated. We can have great parades for them 
when they go off. We ought to have some compassion when they 
come back.
    President Lincoln spoke for the ages in his second 
inaugural address in 1865 in the midst of the Civil War when he 
called for binding up the Nation's wounds and caring for those 
who have borne the battle, and for their widows and orphans. 
This is the same moral obligation we share when it comes to the 
families of first responders.
    The Justice Department's adjudication of claims has been 
nothing but bewildering, but also shocking. I'll give you one 
example, just one: a U.S. Forest Service firefighter in 
Florida. He was found dead 45 feet behind the fire line with a 
shovel in his hand. That's probably as far as I am from me to 
you, Ms. Tilton.
    He was denied benefits because those managing the program 
in Washington, sitting in air conditioned offices, couldn't 
determine whether he was engaged in strenuous activity at the 
time of his heart attack. From that close to the fire line with 
a shovel in hand, I think you could make a pretty good claim 
that you're engaged in strenuous activity.
    So the Justice Department should immediately expedite all 
these claims. They should revise the criteria used to evaluate 
claims. The burdensome information requests, 10 years' worth of 
records, and so on, that should stop. Don't harass these 
people. Remove the bureaucratic hurdles and the lengthy delays.
    The bottom line is, the needs of first responders and their 
families simply haven't been a high enough priority. In the 
last hearing before the Judiciary Committee, Attorney General 
Gonzales agreed with me that the Justice Department was far too 
slow in writing regulations, and he even apologized. He assured 
me that it would clear up without any delays. It didn't happen. 
He resigned.
    So, I thank Director Herraiz of the Department of Justice 
for being with us today, and I hope he comes in with better 
news. Heart attacks and strokes are a grim fact of life and 
death in the high-pressure jobs of police officers, fire 
fighters, and medics, as I saw when I was in law enforcement. 
Emergency first responders put their lives on the line for us. 
We owe their families our gratitude, our respect, and our help.
    I'm glad that the families of the first responders, real 
people, are here. Before I introduce them, these three 
surviving widows who are here to share their story, I want to 
yield. Senator Cornyn, you're going to be ranking on this, I 
guess, this afternoon.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Cornyn. Thank you.
    Chairman Leahy. My friend from Texas, Senator Cornyn.

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
                             TEXAS

    Senator Cornyn. Thank you, Mr. Chairman. I appreciate your 
holding this important hearing today and inviting these 
witnesses here to share with us their experiences, and 
particularly appreciate your inviting Jo Ann Tilton of Katy, 
Texas to testify.
    I just received word that her claim was finally approved 
yesterday, two and a half years after it was filed, thanks to 
the attention that this hearing has brought to her case and the 
cases of others like her. But I think we would all agree that 
it should not take a congressional hearing to cut through the 
red tape and motivate the bureaucracy to finally act 
appropriately on the claim.
    On October 20, 2004, volunteer fire fighter Gary Tilton 
died of a heart attack. Three years later, Jo Ann Tilton comes 
before this committee seeking answers. Ms. Tilton wrote to my 
Dallas office in May of 2006 about the adjudication of her 
husband's Public Safety Officers Benefits claim which she 
submitted to the Department of Justice in January of 2005.
    The determination to be made was whether or not Mr. 
Tilton's cardiac event was actually in the line of duty. His 
heart attack occurred while performing his duties as a 
volunteer fire chief for the Katy fire department. Not only did 
the Department of Justice take an extraordinarily long time to 
process the claim, but DOJ gave Ms. Tilton different answers 
every time she made an inquiry, most of the time telling her 
nothing.
    On April 24, 2007, my office received a letter from the DOJ 
stating that the PSOB office had completed its review of Ms. 
Tilton's claim and she would receive a written notification 
within the next 10 days. Then on September 5, 2007, my office 
received another letter from the DOJ stating that her husband's 
file had been sent to the forensic pathologist to undergo 
another medical review.
    Mr. Chairman, Ms. Tilton has been waiting for about 3 years 
for a decision to be made on her claim and waiting for a 
straightforward answer. This is, by any measure, unacceptable. 
It speaks to the need to reform the tangled bureaucracy that is 
unable to manage in a timely, efficient way, decisions that 
have great personal importance to the families of our Nation's 
first responders.
    So I hope this hearing highlights that need so that people 
like Ms. Tilton may receive closure on this chapter of their 
lives instead of facing continued confusion, frustration, and 
disappointment. Ms. Tilton, thank you for coming from Houston, 
from Katy, Texas, to share your story with the committee.
    Mr. Chairman, thank you very much for allowing me to make a 
brief opening statement.
    Chairman Leahy. Thank you very much. I agree with what you 
suggested, Senator Cornyn. Sometimes these hearings focus the 
attention, and I'm glad it's done that.
    I would welcome the witnesses today. I want to welcome the 
many uniformed officers and surviving widows and families and 
friends who are here for the annual National Fallen 
Firefighters Memorial weekend in Emmitsburg, Maryland. We've 
actually held office retreats at that facility.
    I hope my colleagues won't mind if I also mention Matt 
Vinci and Ben O'Brian from Vermont, who are both in the 
audience today Thank you, gentlemen.
    I want to thank the fire and police service organizations 
that have been so instrumental in passage and implementation of 
the Hometown Heroes Act: the Congressional Fire Services 
Institute, the National Fallen Firefighters Foundation, 
International Association of Firefighters, the National 
Volunteer Fire Council, the International Association of Fire 
Chiefs, the International Fire Service Training Association, 
and, of course, the Fraternal Order of Police, the National 
Association of Police Organizations, Sergeants' Benevolence 
Association of New York City. Congressman Bob Ethridge, who is 
the author of the law in the House of Representatives, has been 
a great supporter for our first responders.
    We'll turn to our witnesses. The first would be Athena 
Schwantes. I met her before, and Jo Ann Tilton, and Susan 
Falkouski. Ms. Falkouski, Senator Schumer is going to say more 
about you when we get there. I had the pleasure of meeting them 
and their children when they were in town last July. I would 
swear the girls have grown--you probably realize that--since 
then.
    So, thank you. Thank you for coming. Ms. Schwantes, why 
don't we start with you?

      STATEMENT OF ATHENA SCHWANTES, FAYETTEVILLE, GEORGIA

    Ms. Schwantes. Thank you so much for allowing me to be here 
today. I'm Athena Schwantes, the surviving spouse of fallen 
firefighter Russell Schwantes from Atlanta, Georgia.
    In August of this year, I received my declination letter 
from the Department of Justice regarding my PSOB claim. Of 
course, it was pretty disheartening to get the letter stating 
they were denying the claim. I could accept this if Russell was 
a 5'9'', 300-pound male who suffered a heart attack while 
sitting in a recliner at the fire station after eating a 
hamburger with chili cheese fries and a Coke.
    Instead, Russell was a 5'9'', 195-pound male who had worked 
14 hours into his shift, and apparently he felt well enough to 
engage in the required routine physical fitness training. But 
something different happened this time. A call came in during 
the time that he was at his heightened heart rate. He ran to 
answer the call and then suffered a heart attack. Sounds like 
line of duty to me.
    Russell went to work in good health. During the days 
before, he performed in his family life as a husband, a father, 
and a brother. He played 18 holes of golf prior to his shift on 
Sunday. But when he went to work to perform those duties, 
something happened: he suffered a heart attack and died.
    We all know the facts about the Hometown Heroes Survivors 
Act, so there's really no need for me to go over those again. 
But I do think it's important that you hear three profound 
facts that I've experienced as a result of my husband's death, 
however, they shouldn't be a factor in this decision, because 
we all know that grief is painful.
    The loss of Russell has produced painful and disturbing 
symptoms of grief, including anxiety, yearning, depression, 
hopelessness, despair, crying, fatigue, and a loss of interest 
for life. I have questioned the value of long-term goals 
because I know that everything important to me can be taken 
away in an instant.
    As for my two daughters, Holly and Morgan, losing their 
father has had a devastating impact on the assumptions that 
were previously held. Being a part of a loving family, they, 
like I, saw the world as somewhat of a safe and orderly place.
    Regrettably, it only takes one shattering event of 
sufficient magnitude to change one's core belief about life, 
that terrible things can happen without warning. My children 
were left feeling unsafe and insecure.
    Studies show that sudden death of a spouse or a parent has 
extremely negative long-term results, things like interpersonal 
problems, mental health problems, physical health problems, 
school performance problems, and substance abuse.
    But I say no to all of these. I say no to all of these for 
not just my children, but for the other surviving families, 
that we will not accept these statistics for our children. Of 
course, no amount of money can ever compensate for the things 
listed above, however, saying yes can remove some of the 
financial burdens that could potentially reduce, if not all, 
maybe some of these statistics. Isn't it worth it?
    Throughout this journey I've spent a lot of time asking God 
why. He's met me in the middle of my monumental grief, and each 
day I reach out my hand to Him for support and guidance. When 
dealing with things that were once routine that now seem so 
overwhelming, I ask for His counsel to ensure that I'm doing 
His will.
    So instead of continuing to ask God why, now I'm asking 
myself, why don't you take where you've been and move forward. 
It's now time to push beyond this tremendous pain and reach out 
to others who might be in need and to see that Russell did not 
die in vain. I wish you could have known him.
    If Russell could speak to us today he would say, ``Please 
help the families of my fellow firefighters. Don't turn your 
backs on what we've trusted and sacrificed our lives for.'' He 
would say, ``If it were your family, I'd do it for you.''
    So I ask, who will govern your actions today? From whom 
will you seek your counsel? Saying yes to this benefit will 
send a message to these families that losing their loved ones 
has been acknowledged. For us, it's another step forward in 
believing that you will simply do what you said and wrote into 
law that you would do.
    [The prepared statement of Ms. Schwantes appears as a 
submission for the record.]
    Thank you.
    Chairman Leahy. Thank you. If I might, with your 
permission, Holly and Morgan, your dad was a hero, but your mom 
is one, too. She's a good mother. You take good care of her. I 
know she takes good care of you.
    Ms. Tilton, your husband was volunteer chief of the Katy 
fire department in Texas, as Senator Cornyn pointed out. I 
think he has introduced you. I'm proud to have you here, and I 
thank you for taking the time to be here. Please go ahead, 
ma'am.

            STATEMENT OF JO ANN TILTON, KATY, TEXAS

    Ms. Tilton. Since I'm here today speaking in his honor, I 
think it only fitting that he be here with us.
    Today I speak in honor of all fallen firefighters and their 
families. I would like to introduce to you one of the fallen. 
Chief Gary Tilton was part of that unique breed called a 
volunteer. His volunteer activities included membership in 43 
service organizations. His involvements ranged from Rotary 
president, to city councilman, to church activities. But none 
of his activities held his heart like fire fighting. I have 
found that most people outside of the fire service do not 
understand the life of a volunteer firefighter.
    Let me try to explain. Gary was a volunteer with the Katy 
fire department for 31 years. While we did not wear a uniform 
or fight a fire, my daughter and I were very much a part of 
Gary's fire service career. Every day of Gary's 31-year career 
we lived that life with him.
    I learned that when you're married to a firefighter, no 
plans are definite. Emergencies happened night or day and Gary 
answered the call. Very early in Gary's career I learned how to 
reheat meals when we had to answer a call in the middle of 
dinner. I learned how to entertain a houseful of guests when 
Gary had a call and did not make it to his own birthday party. 
I learned how to be both mommy and daddy when Gary couldn't be 
at our daughter's activities because he was on fire call.
    When the alarm went off in the middle of the night, I 
didn't roll over and go back to sleep when Gary left for the 
call. Instead, I'd listen to his monitor until I heard that 
everyone was back safely in the station.
    My daughter and I shared Gary with the community for 31 
years and we do not regret 1 minute of it. He had a passion for 
the fire service that you could see in his eyes and hear in his 
voice. We shared his excitement with so many honors over the 
years, such as when he was named Firefighter of the Year for 
the State of Texas. We were so proud when he achieved his dream 
of being named fire chief. Somehow, I felt when Gary was 
honored, my daughter and I were also being honored because we'd 
been so much a part of Gary's career.
    Because I've been so much a part of Gary's career is one of 
the reasons that the delay of the DOJ has been so hard for me 
to handle. When the alarm went off, Gary answered the call. It 
didn't matter the hour, the weather, or the occasion. Someone 
needed help and, without asking questions or waiting until some 
more convenient time, Gary answered the call. He didn't wait to 
see why the fire started before he answered the call, he simply 
did what he was called to do, and that was to answer the call.
    Gary answered his last call on October 20, 2004 and I 
stepped into a role in which I had never imagined myself. I 
gained a most honored title that day, but yet it is one that no 
woman desires. Suddenly, I was a widow and faced with 
challenges I could only have imagined prior to my husband's 
death.
    When my claim was filed for benefits under the Hometown 
Heroes Act, I was told not to expect to hear anything for at 
least a year, so I put that claim in the back of my mind. 
During that first year there were so many challenges to be met 
that I literally kept a list on a yellow tablet.
    As each task was completed and that obstacle was overcome, 
I would cross it off my list and feel a sense of relief and 
accomplishment. I had gone one more step on the road to 
building my new life. One by one, the items on that list began 
to be crossed off until 1 day only one item remained: the claim 
for benefits under the Hometown Heroes Act.
    One year and 2 months after that claim was filed, I began 
to make inquiries to the DOJ. Periodically I would call and I 
would ask the same question; what is the status of my claim? I 
would always be given a very polite answer that basically said 
that either claims were not yet being processed, or my claim 
was in review. Time after time I called, time after time I was 
treated politely, but given no answers. Eventually I began e-
mailing my questions to the DOJ. I received a contact e-mail 
each week, but no answers to my questions.
    Over the past 18 months, I've had a total of 25 phone calls 
and 10 e-mails with the DOJ. None of those phone calls or e-
mails contained answers to my questions. This has been a most 
painful and frustrating process. There is no way I can tell you 
how hard those phone calls and e-mails have been.
    With every contact, another little piece of me has died 
because there on a piece of paper called a claim is the stark 
reality that my husband is not coming home. Unless you are a 
survivor yourself, there is no way you can understand the depth 
of pain of losing a spouse or a father. That pain is only made 
sharper by the delay in processing of the death claim.
    Less than 48 hours ago, on Tuesday night as I was preparing 
to leave my home the next morning to come to Washington, I 
received a phone call from the Department of Justice. I was 
told that my claim had been approved that day. Two years and 10 
months after this claim was filed, it has been approved for 
payment.
    For me, it appears that the battle is over. I can only hope 
that the approval of this claim is an indication that the DOJ 
has begun to move forward in processing the many Hometown 
Heroes claims which have been pending for way too long. Many 
other families are experiencing that same pain and agony that I 
have felt for so long. I hope that they, too, will receive the 
honor that their firefighter so rightly deserves.
    In 16 days, I will observe the third anniversary of my 
husband's death. This has been an incredibly painful process, 
but today I would say thank you for finally giving my husband 
the honor he deserves. He will always be my hero. Thank you.
    [The prepared statement of Ms. Tilton appears as a 
submission for the record.]
    Chairman Leahy. Well, thank you, Ms. Tilton. Ms. Tilton, is 
this your daughter?
    Ms. Tilton. This is my daughter, yes.
    Chairman Leahy. And first name?
    Ms. Tilton. Laurie.
    Chairman Leahy. Laurie. I just wanted that for the record. 
Laurie, thank you for being here, too.
    I'm going to yield to Senator Schumer to introduce our next 
witness.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Well, thank you, Chairman Leahy. I want to 
thank you and Senator Specter and Senator Cornyn for holding 
this very important hearing today. We also want to thank all 
three of our witnesses. I'm about to introduce Ms. Falkouski, 
who I know, but I want to thank Ms. Tilton and Ms. Schwantes 
for really moving, powerful testimony. I hope it melts some of 
the harder hearts in the Justice Department.
    Now it is my honor to introduce my constituent, Susan 
Falkouski. She is the widow of Assistant Chief Michael 
Falkouski of the Rensselaer fire department. Chief Falkouski 
suffered a stroke and died in the line of duty after responding 
to a fire in the middle of a blizzard in 2005.
    Over the past year, I've gotten to know Ms. Falkouski, and 
with her case, and I know that this is exactly the kind of 
tragic case that I was envisioning when I co-sponsored the bill 
that Senator Leahy introduced, when I voted in favor of it and 
pushed forward to become law.
    Yet, somehow the Department of Justice has twisted 
congressional intent and denied the majority of the heart 
attack and stroke victims that it has ruled on. In fact, at the 
time I first became involved, not in the bill but in what had 
happened, they had denied 34 out of 34 cases, including two 
cases in the Capital Region, one of Chief Falkouski, as well as 
the case of Chief Kevin Shea of the Ellsmere fire department, 
which is also in the Capital Region near Albany in New York 
State.
    Now, my colleagues, when you hear her story I think you'll 
agree with me that Chief Falkouski's case was precisely the 
kind of situation that we attempted to address in 2003 and that 
the Department of Justice is not acting in a manner we 
intended.
    Day in and day out, our firefighters and police officers 
put their lives on the line to take care of us and we have to 
do the same for their loved ones. Congress passed this law to 
give families of our fallen heroes a helping hand, not show 
them the back of it.
    In a sense, the way the Justice Department has administered 
this law, for many families it's worse than having no law at 
all. It's just so wrong and so unfair. When emergency workers' 
lives are interrupted by a call and suddenly they go racing to 
a hazardous condition, medical science will tell you it rockets 
the heart race and stress level on the human body.
    It doesn't matter whether they're in a burning building, 
chasing a criminal, responding to a scene, or monitoring the 
situation from the street. These brave men and women put 
tremendous stress on their bodies, on their lives, and their 
lives on the line when they answer that call.
    Responding to an emergency, working at the scene, and the 
immediate period afterwards is inherently non-routine. That is 
not what human beings normally do in the course of a day. Most 
of us never experience that kind of stress in a year, 2 years, 
3 years. Those kinds of situations, we know, place the human 
body under irregularly high stress levels.
    I'm glad to see that, in Dr. Herraiz's testimony, he agrees 
with this and has issued ``a binding direction to his staff'' 
regarding these situations. That is a breakthrough, and I hope 
one that will not be an empty breakthrough, but one that will 
portend a better solution for Ms. Falkouski, Mrs. Shea, and the 
others who have been denied unfairly.
    Firefighters like Mrs. Falkouski's husband don't sit on 
their hands when our families need help. The Federal Government 
should not sit on its hands when these families need help.
    I hope stories like those of Mrs. Falkouski will continue 
to open the eyes of the Justice Department so it can finally 
understand how important the 2003 Hometown Heroes Act benefits 
are to families like the Falkouski family. Again, I want to 
thank Mrs. Falkouski for being here. I want to thank Chairman 
Leahy for introducing this bill and holding this hearing.
    And one other note of thanks. Sitting behind Mrs. Falkouski 
is Steve Mann, who has worked in my capital office for 9 years. 
Not only is he one of the best workers I've ever had in my 33 
years as an elected official, and not only are we, the people 
of New York, blessed to have him, but he's also an assistant 
chief, knew Chief Falkouski, and in fact took Chief Falkouski's 
spot after he passed away in the Rensselaer fire department.
    Ms. Falkouski, thank you for being here.
    Chairman Leahy. Thank you, Mrs. Falkouski. Please go ahead.

       STATEMENT OF SUSAN FALKOUSKI, RENSSELAER, NEW YORK

    Ms. Falkouski. Good afternoon. I am here today to speak to 
you about my husband, Michael Falkouski. Michael was a 
wonderful man and a terrific husband. We were married for 38 
years and we raised three children. Throughout Mike's life he 
was driven to serve his community. He coached Little League 
when our children were little. He rode the volunteer ambulance. 
He was an elected city council member for 16 years. But most of 
all, he was very proud of his service as a volunteer 
firefighter for 37 years.
    The Rensselaer fire department is made up of a combination 
of volunteers and career firefighters. In 1993, Mike was 
appointed to the volunteer position of Deputy Fire Coordinator 
for Rensselaer County, where he served as a liaison between the 
Rensselaer City Fire Department and the neighboring mutual aid 
departments.
    In 1998, the Rensselaer City Board of Public Safety 
appointed Mike to be the 2nd Assistant Chief of the Rensselaer 
Fire Department. This made him the third highest-ranking member 
of the department and made him responsible for all of the 
firefighters under him at emergency scenes.
    He worked very hard at this job and took the responsibility 
very seriously. In Rensselaer, the fire chiefs don't work 
shifts. They are always on call and they respond from their 
homes to emergency calls. Mike would frequently be called away 
from family events, dinners, or in the middle of the night to 
respond to a call.
    In the early morning hours of Sunday, January 23, 2005, the 
Capital Region of New York was in the midst of a major winter 
storm which would dump more than 20 inches of snow on the area. 
At 2:33 a.m., with the wind chill temperature at minus 11 
degrees, the Rensselaer Fire Department received a call of an 
explosion in a quiet, residential area. The page alarm and call 
woke Mike up from a sound sleep, and he quickly dressed and 
headed out into the blizzard.
    Mike's pickup truck was covered with more than a foot of 
snow and he rushed to clean it off as quickly as he possibly 
could so that he could head to the call. Other firefighters 
have told me how physically exhausting this was to them. While 
Mike was still cleaning his car, the first fire truck arrived 
at the scene. The firefighter driving the apparatus was Mike 
Mann, who was a lifelong friend of my husband's.
    Firefighter Mann reported a heavy fire condition in a 
garage with a severely burned victim in need of treatment, and 
called for a second alarm for more help. As my husband made the 
treacherous response through the blizzard, he heard reports of 
a series of small explosions in the fire building, as well as 
frozen fire hydrants. Mike arrived a block away from the fire 
scene and parked his truck.
    He got out of his truck and was finishing getting his gear 
on when an aneurysm ruptured in his brain and he fell 
unconscious. He was discovered by a civilian, and at 2:54 a.m. 
it was reported that he was down. He began receiving CPR and 
AED treatment by a group of firefighters and EMTs and was 
transported to Albany Memorial Hospital.
    I was still sleeping when our dear friend, retired Fire 
Chief Phil Smith, called me and told me that Mike had been 
taken to the hospital and that he was on his way to pick me up. 
Despite the best efforts of the firefighters on the scene and 
the doctors at the hospital, the damage was too great and, as 
Mike wished, he was kept alive for several hours in hopes that 
his organs would be harvested. My husband died later that day.
    In all the years that Mike served as a firefighter, he told 
me not to worry; if anything ever happened, I'd be taken care 
of. One of the firefighter told me about how Congress had added 
heart attack and stroke to the PSOB program, and that I would 
likely qualify. Sadly, both were wrong.
    In March, I received a letter from Hope Janke of the 
Department of Justice informing me that they had denied my 
claim for death benefits under PSOB. The letter stated that the 
``act of responding at any hour of the day or night to the 
scene of a fire event is a routine engagement.'' The letter 
also said that the below-zero weather, high winds, and 20 
inches of snow had no significance.
    They failed to appreciate the added stress that the 
reported heavy fire, explosions, burned victim, low manpower, 
and frozen hydrants would have had on a chief as he made his 
way to the scene. He knew he was assuming responsibility for 
all of this chaos. I must tell you, I am not only offended, but 
angry at this letter. I feel that the Department of Justice 
trivialized my husband's service, and it seems to me it was 
written by someone who has no idea of what it's like to respond 
to an emergency.
    In fact, I think it is inherently non-routine for any human 
being to race towards a dangerous situation at a moment's 
notice. The firefighters I have spoken to agree with me, and 
several of the noes who were there that night tell me that 
fire, in particular, was the most non-routine fire that had 
ever been to.
    I want to finish by saying that I hope you can change this 
thinking in the Department of Justice. If not for me, for all 
of the thousands of firefighters and their families out there 
who continue to respond at a moment's notice to dangerous 
situations. I am sure that most of them think, like Mike and I 
did, that if tragedy ever came to them their family would be 
taken care of. If they are not, what kind of message does that 
send?
    I know that it's already hard enough to get people to 
volunteer. Mike used to talk about how hard it is to recruit 
and keep people who are willing to devote the time and accept 
the danger. If the government considers this kind of service to 
be routine and denies benefits in circumstances like this, I 
really wonder how we will convince people to keep doing it.
    This is not something I would ever do in my life, to come 
down here and speak to you, but I feel it is that important 
that I have done so. Thank you.
    [The prepared statement of Ms. Falkouski appears as a 
submission for the record.]
    Chairman Leahy. Thank you. I'm going to put into the record 
the letter from Chuck Canterbury, the president of the 
Fraternal Order of Police, who strongly supports this, and 
Chief Steven Westerman, the International Association of Fire 
Chiefs, for his letter in support of this, but also two policy 
memos issued by the Bureau of Justice's Assistant Director 
Domingo Herraiz on October 2 of this week, which I think are a 
step in the right direction.
    Senator Schumer and I have already discussed this. We're 
not going to ask questions. There's nothing that could be added 
to what you've said. We will stand in recess for 2 minutes 
while the panels change and give us a chance to come down and 
thank you personally.
    [Whereupon, at 3:19 p.m. the hearing was recessed and 
resumed back on the record at 3:21 p.m.]
    Senator Schumer. Well, thank you. I want to thank Mr. 
Herraiz for being here. Let me introduce Domingo S. Herraiz, 
who is the Director of the Bureau of Justice Assistance, the 
BJA. Before his appointment, Mr. Herraiz served on the 
Governor's cabinet as Director of the Ohio Office of Criminal 
Justice Services. Prior to OCJS, Mr. Herraiz was the Executive 
Director of the Ohio Crime Prevention Association, the large 
State crime prevention association in the country. He also 
served as an executive committee chair of the Crime Prevention 
Coalition of America.
    The entire statement of Mr. Herraiz will be read into the 
record. Mr. Herraiz, you may proceed with your statement. You 
have 5 minutes, and then answer questions.

 STATEMENT OF DOMINGO S. HERRAIZ, DIRECTOR, BUREAU OF JUSTICE 
ASSISTANCE, OFFICE OF JUSTICE PROGRAMS, DEPARTMENT OF JUSTICE, 
                        WASHINGTON, D.C.

    Mr. Herraiz. Chairman Schumer, distinguished Members of the 
Committee, thank you for the opportunity to appear today on 
behalf of the Department of Justice's Office of Justice 
Programs. As you know, I am the Director of the Bureau of 
Justice Assistance.
    I understand the serious issues surrounding the Public 
Safety Officers' Benefits Program, or PSOB, Hometown Heroes 
claims. I first want to underscore our commitment to the law 
enforcement, firefighter--
    Senator Schumer. Could you just pull the microphone up a 
little so our transcriber can hear you? Thank you.
    Mr. Herraiz. I want to underscore our commitment to the law 
enforcement, firefighter, and emergency responders' 
communities. As the son of a firefighter and the nephew of a 
police officer, I am concerned and committed to do everything I 
can do to make certain the survivors of our fallen heroes 
receive the benefits that they deserve.
    I realize that there are several major concerns regarding 
Hometown Heroes claims: the delays and backlogs of Hometown 
Heroes claims, the interpretation of the term ``non-routine'', 
our request for medical records from survivors, the ratio of 
denials to approvals in the first year, and the outcome of 
specific cases.
    On December 15, 2003, the Hometown Heroes Act expanded the 
PSOB program to allow certain eligible heart attacks and 
strokes to be considered line-of-duty deaths. Afterwards, we 
undertook a complete revision of the regulations which, while 
needed, took longer than we expected. The resulting delays were 
unfortunate and of great concern to the public safety 
community, Members of Congress, and especially the survivors 
who have lost loved ones.
    To make the Hometown Heroes claims process run more 
smoothly, we have undertaken many changes. PSOB claims can now 
be submitted via the Internet. A new PSOB case management 
system is now online. This system is designed to generate 
monthly updates to survivors so they know the exact status of 
their claims. Benefit specialists, claims contractors, 
attorneys, hearing officers, and forensic pathologists have all 
been added to expedite the review process.
    We have partnered with the National Fallen Firefighters 
Foundation and the Concerns of Police Survivors to develop 
what's titled the Local Assistance State Teams, the LAST teams, 
to work directly with survivors and agencies on their PSOB 
claims. The Department will issue the ``Attorney General's 
Guide to Hometown Heroes'' to provide step-by-step guidance on 
the application and review process.
    And, perhaps most importantly, beginning this past August, 
each week the PSOB Office identifies the 12 oldest and most 
complete Hometown Heroes cases and drafts determinations for 
general counsel review. Having designed this strategy based on 
the insight from our first year of processing these claims, 
these changes will allow us to have 144 Hometown Heroes cases 
in legal or medical review in just 3 months. We are fully 
committed to this 12-in-a-week strategy until all claims have 
been processed and normalized, to about 7 new cases per month 
by March 2008.
    Some of our stakeholders have also expressed concern that 
the term ``non-routine'' is ambiguous, and that in some cases, 
an activity which is regularly done by a public safety officer 
has been considered routine. Sharing those concerns, I ordered 
a complete review of all Hometown Heroes denials. While ``non-
routine'' has been referenced in determinations, thus adding to 
the sense that the term was used to deny cases, to date, no 
claim has been denied solely because the activity was deemed 
``routine''.
    Understanding this was a concern to firefighters, law 
enforcement, and survivors, and to ensure consistency in the 
future, I provided binding direction so that no activity will 
be considered routine simply because the officer might engage 
in it regularly. Additionally, this directive clarifies that 
emergency calls will be considered non-routine for Hometown 
Heroes purposes.
    Another concern raised is the request that Hometown Heroes 
survivors provide up to 10 years of medical history. Early in 
the Hometown Heroes process we were advised by forensic 
pathologists to request these records, then quickly realized 
that they were not needed in many cases. As a result, we have 
reduced the burden on survivors by not requesting these records 
in most cases. I have recently provided binding direction on 
this issue as well, specifying that medical records will be 
requested only in rare circumstances where the records might 
serve to support the claim.
    A further concern is the ratio of Hometown Heroes approvals 
to denials. As we continue to partner with the national 
stakeholders and review the wide range of cases submitted, we 
have discovered critical information points that can positively 
impact claim outcomes.
    Based on our experience and increased outreach to agencies 
and claimants regarding the officer's activities in the 24-hour 
period to the heart attack or stroke, I believe we can reduce 
the number of claims determined and denied on incomplete 
evidence and, in turn, increase the number of approvals.
    Finally, there are concerns about the outcomes of specific 
cases. While the Department cannot speak publicly regarding 
individual ongoing cases, I am confident that increased 
outreach efforts will help agencies and survivors provide all 
evidence needed to effectively support their claims, including 
those claims now on appeal.
    Please be assured that the Department of Justice is 
committed to ensuring that all PSOB claims are administered in 
a compassionate, fair, and timely way. I have served the 
criminal justice community for over 22 years, and as BJA's 
Director I have never forgotten the values and the life lessons 
that I was taught in a public safety household.
    Mr. Chairman, I'd be happy to answer your questions and I 
thank you for allowing me the opportunity.
    [The prepared statement of Mr. Herraiz appears as a 
submission for the record.]
    Senator Schumer. Well, thank you, Mr. Herraiz. I must say, 
your testimony gives us some hope that things are changing, and 
will change. I can tell you, as one of the co-sponsors of the 
Act, we did want these kinds of changes all along.
    In fact, April of 2003, I stated very clearly that ``the 
old standard before the Act was implemented was very narrow and 
ignored tremendous stress and strain that first responders are 
under when they respond to a call''. So it seemed inherently 
unfair to me, Senator Leahy, Senator Specter, my colleagues who 
are involved in this, that the families whose loved ones died 
while responding to a fire were treated differently than those 
who died while fighting a fire when the stress on their bodies 
was often quite equal.
    Both represent acts of heroism, of being willing to make 
the ultimate sacrifice in service. Both deserve our honor in 
the form of compensation for their families. That's why we 
modified the law to cover situations when a first responder 
died as a result of stressful circumstances surrounding a call 
to action. We carefully tailored this language to avoid being 
too broad.
    We didn't want to include situations where someone who's a 
first responder passes away in non-stressful situations, like 
sitting around the firehouse waiting for a call, or a volunteer 
EMT who might be waiting for a call watching television. Those 
are routine to anyone's daily life and not covered.
    But the three cases we've heard here are not routine in the 
least. You know that, I know that. We all know that. So that's 
why there is such frustration here, because it seemed like the 
Justice Department was going out of its way to defy 
congressional intent to deny these widows, these families, 
their just desserts.
    So when you met with my staff back in May, one of your 
colleagues stated it was not the position of the Justice 
Department to exclude all cases in which a firefighter or 
police officer died while responding to a call. He stated DOJ 
considered such activities non-routine. That was good. Your 
letter seems to back that up, your testimony here, very well.
    But Ms. Falkouski's denial letter flies in the face of that 
statement. Her letter states that ``the act of responding at 
any hour of the day or night to the scene of a fire event is a 
routine engagement.'' There's a direct contradiction in her 
denial. And I don't know the letter of Mrs. Schwantes, but I am 
sure there are many others.
    So when presented with this letter back in May, you and 
your colleagues assured my staff, despite the reason for 
denying Ms. Falkouski, this wasn't the position of the Justice 
Department. The new testimony makes that crystal clear. I'm 
very glad to hear it.
    So my question to you is, first, if the new policy is the 
policy of the Justice Department, what are we going to do with 
the claims that were denied, seemingly under an old policy, if 
an unstated policy? And I don't want to put you in a legal box 
here, but I certainly want to get relief for Mrs. Falkouski, 
Mrs. Schwantes, and the many others who are like that.
    So my question really is aimed at the future. What are we 
going to do to correct the situation? First, in addition to the 
directive, what steps have been taken to make sure that other 
claims are not denied due to this misinterpretation of the law?
    Second, I know you can't discuss specific cases, but what 
are we going to do with the appeals of the claims that were 
initially rejected, seemingly under an interpretation of the 
law that the Justice Department no longer holds? Those are my 
two questions, and they're said with respect and appreciation 
for your being here and wanting to be helpful.
    Mr. Herraiz. Thank you, Mr. Chairman. In regards to your 
first question and the directives, the binding directives that 
we've issued, it's important for me to stress how important the 
time period to get there really was. You had referenced the 
meeting in May. We have watched these, both by working with the 
national organizations, even local fire and police services, to 
really try to figure out, what are the information points as 
related to the regulations? How can we get to the next step?
    That's when we identified that, coming back from your staff 
meeting as well, to review--and I mentioned to actually go and 
review all of the old cases and to make sure of the 
determinations. We basically discovered that the terminology 
that we used in those letters was not the best of terminology, 
and that's why we went back and reviewed each one.
    Then the recent decision to issue the directive so we can 
make it clear and build a foundation for the future, to 
guarantee that this will be followed in the PSOB Office from 
this day forward. Specifically as it relates to the claims that 
are still at BJA, in particular, these new directives obviously 
will impact those cases.
    The second aspect as far as the cases that are on appeal 
where those individuals--approximately 26 survivors have 
appealed the decision of the PSOB office. Right now, those have 
gone to a hearing officer who will go out into the community, 
work with the surviving family to gather additional 
information. They will come back and provide a report back as 
the hearing officer as to new information that was found on the 
part of the claim.
    There are two parts to the process of the appeal, the BJA 
Director, myself, is the final step. I'm the final, the second 
step, in the process. It gives me the opportunity to look at 
all the information in the file, which I have not yet seen on 
any of the cases--again, these cases I'm looking for coming 
back from the hearing officer. So we'll have the opportunity to 
implement those two directives and share those with the hearing 
officers because they have not reached my desk yet.
    Those cases which we have denied, the PSOB Office director 
will personally reach out to each one of those families, the 
surviving families, share with them what the directive is, what 
it means, and give them the opportunity to figure out if, at 
that point, they would like to appeal to the director of BJA 
through the hearing process, as established in the regulations.
    Senator Schumer. And I take it then that this new 
information will be looked at under the guise of this 
directive, the new directive, even if it's on appeal?
    Mr. Herraiz. That's correct.
    Senator Schumer. Okay. That is good news. Hopefully that 
should get us some justice for some of these families, and 
we'll be watching carefully. But we do, I think, speaking for 
myself, and I would imagine the whole committee, appreciate, 
shall we say, not the change in law, because I know you're 
bound by that, but the change in attitude of the Justice 
Department in this regard, and we're going to be looking very 
carefully to hope that that attitude shows through, not only on 
the new cases which are very important, but on the appeals. It 
would just be unfair to hold these 26 families to a different 
standard than the new standard that is forward.
    Senator Leahy?
    Chairman Leahy. I was just going to add, I read your 
testimony before and was encouraged by it. I want to thank you 
for coming here. You've heard some very compelling stories. 
But, unfortunately, there are many, many others like it. I hope 
you will take a look at Mrs. Schwantes and Mrs. Falkouski's 
files, review that in light of all this. Ms. Tilton has gotten 
notice that that's going to be looked at, and that's good. But 
there are so many others we could have had here testifying. I 
am encouraged, Director, very much so. I want you to know I 
appreciate that.
    Mr. Herraiz. Thank you, Senator. And you have our 
commitment that we will absolutely look very hard at these 
cases and make sure, when they reach us on appeal, as well as 
the cases that moves forward--this is an issue that's very 
important to me. My brother-in-law is a current firefighter, my 
father's retired, and I know what it's like to stand next to a 
firefighter and have to go through this. I can only imagine 
what it would be like had I lost my father or was to lose my 
brother-in-law.
    Chairman Leahy. Thank you, Director.
    Thank you, Mr. Chairman.
    Senator Schumer. Thank you, Mr. Chairman.
    Just before I call on Senator Cardin--my questions are 
finished--I'd just ask unanimous consent, first, to add the 
letter denying Ms. Falkouski's initial claim to the record, and 
a statement Senator Biden has submitted for the record. Without 
objection, they will be.
    [The prepared statement of Senator Biden appears as a 
submission for the record.]
    Senator Schumer. Senator Cardin?

 STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR FROM THE 
                       STATE OF MARYLAND

    Senator Cardin. Thank you, Mr. Chairman. Let me thank you 
for your testimony. I must tell you, as I read the material for 
this hearing, I was very, very concerned bout the 300 cases or 
applications that have been filed and so few getting positive 
results, and the length of time, and then realizing that each 
one of these cases is a family. We saw three today, and I think 
that helped.
    I really do thank Senator Leahy for putting together that 
first panel, because I think it does point out that we are 
affecting people's lives. They've gone through enough stress, 
enough anxiety that they don't need to be put off as they have 
under the bureaucratic problems of implementing this statute. 
So, I thank you for your testimony.
    I just want to add one more word of caution. It seems to me 
relatively clear that Congress intended that for our first 
responders who have suffered from a heart attack and died, in 
which it was clear that their occupation contributed to that 
circumstance, that they would be entitled to benefits.
    I read your testimony and read some of the technical 
provisions and the interpretations of the technical provisions 
and I understand we're all bound by the law. We certainly 
aren't bound by this type of delay in implementing the law, but 
you're bound by the law. I want to make sure, at the end of the 
day, that the intent of Congress is, in fact, carried out.
    If, in your review, there are ambiguities that continue to 
be used to deny benefits to families that should be receiving 
those benefits, I want to know about that because I think that 
we want to make sure that those that are entitled to these 
benefits, as Congress intended, get those benefits. So I just 
really want to underscore that. This shouldn't be an 
adversarial procedure.
    Obviously we have to have a review process. I'm not 
suggesting that we can't do this without a review process. We 
have to have that. But it shouldn't be an adversarial type of a 
process. It should be one in which, when certain standards are 
met, the benefits are given and it should be done in a timely 
way. That has not been, at least as I see it, the record to 
date.
    I'd just add my support to the comments made by my 
colleagues, and again, I thank you for the commitments and 
statements that you've made today. Hopefully we'll be able to 
move forward and get the benefits to the families that are so 
richly deserved. Thank you.
    Senator Schumer. Thank you. Thank you, Director Herraiz.
    I want to thank, again, the families for coming, Falkouski, 
Tilton, and Schwantes, and all of those who came in the 
audience to support this good cause.
    Without further ado, the hearing is adjourned.
    [Whereupon, at 3:40 p.m. the hearing was adjourned.]
    Questions and answers and submissions for the record 
follow.]

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