[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
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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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