SELECTED LEGAL
MATERIALS
RELATING TO
THE PUBLIC SAFETY OFFICERS' BENEFITS ACT OF 1976
(GENERALLY
CODIFIED AT
42 U.S.C. CHAPTER 46, SUBCHAPTER XII)
Public Safety Officers' Benefits
Act of 1976 — implementing regulations
(28 C.F.R. pt. 32)
***************************************
PUBLIC SAFETY OFFICERS' DEATH BENEFITS
Pub. L. No. 90‑351, Title I,
Part L
[42 U.S.C.
Chapter 46, Subchapter XII]
Sec.
1205 [§ 3796c] Administrative provisions
[§ 3796c‑2] [Use of
funds for appeals and expenses of representation of hearing examiners]
Sec.
1212 [§ 3796d‑1] Basic eligibility
1213 [§ 3796d‑2] Applications; approval
1215 [§ 3796d‑4] Discontinuation for unsatisfactory conduct
or progress
1218 [§ 3796d‑7] Authorization of appropriations
Pub. L.
No. 90‑351, Title I, Part L, Subpart 1
[42 U.S.C. Chapter 46, Subchapter XII,
Part A]
1205 [§ 3796c] Administrative provisions
[§ 3796c‑2] [Use
of funds for appeals and expenses of representation of hearing examiners]
42 U.S.C. § 3796 Sec. 1201 Payments
(a) In
any case in which the Bureau of Justice Assistance
(hereinafter in this part [subchapter] referred to as the "Bureau") determines, under regulations
issued pursuant to this part [subchapter]
that a public safety officer has died as the direct and proximate result of a personal injury sustained in the line of duty,
the Bureau shall pay a benefit
of $250,000, adjusted in accordance with subsection (h),
as follows:
(1) if there is no surviving child of such officer, to
the surviving spouse of such officer;
(2) if there is a surviving child
or children and a surviving spouse, one‑half to
the surviving child or children of such officer
in equal shares and one‑half to the surviving spouse;
(3) if there is no surviving spouse, to the child or children of such
officer in equal shares;
(4) if there is no surviving spouse
or surviving child—
(A) in the case of a claim made on or after
the date that is 90 days after the date of enactment
of this subparagraph, to
the individual designated by such officer
as beneficiary under this section in such
officer's most recently executed designation
of beneficiary on file at the time of death
with such officer's public safety agency,
organization, or unit, provided that such individual survived such officer; or
(B) if there is no individual qualifying under
subparagraph (A), to
the individual designated by such officer
as beneficiary under such officer's
most recently executed life insurance policy on file at the time of death with such officer's public safety agency, organization, or unit,
provided that such individual survived such officer; or
(5) if none of the above, to the parent or parents of such officer in
equal shares.
(6) The public
safety agency, organization, or unit responsible for maintaining on file an
executed designation of beneficiary or recently executed life insurance policy pursuant
to paragraph (4) shall maintain the
confidentiality of such designation or policy in the same manner as it
maintains personnel or other similar records of the
officer.
(b) In
accordance with regulations issued pursuant to this
part [subchapter], in any
case in which the Bureau determines that a public
safety officer has become permanently and totally
disabled as the direct result of a catastrophic injury sustained in the line of duty, the Bureau shall pay,
to the extent that appropriations are provided, the same benefit in any year that is payable
under subsection (a) in such year, adjusted in
accordance with subsection (h), to such officer: Provided, That the total annual benefits
paid under this subsection may not exceed
$5,000,000. For the purposes of making these
benefit payments, there are authorized to be appropriated for each fiscal year
such sums as may be necessary: Provided further, That these benefit
payments are subject to the availability of appropriations and that each beneficiary's
payment shall be reduced by a proportionate share to the extent that sufficient
funds are not appropriated.
(c) Whenever
the Bureau determines
upon showing of need and prior to final action
that the death of a public safety officer is one with respect to which
a benefit will probably be paid, the Bureau may
make an interim benefit payment not exceeding
$3,000 to the individual entitled to receive a benefit under subsection (a) of this
section.
(d) The
amount of an interim payment under subsection (c) shall be deducted from the amount
of any final benefit paid to such individual.
(e) Where
there is no final benefit paid, the recipient of any interim
payment under subsection (c) shall be
liable for repayment of such amount. The Bureau
may waive all or part of such repayment, considering for this purpose the
hardship which would result from such repayment.
(f) The
benefit payment under this
part [subchapter], shall
be in addition to any other benefit that may be due from any other source,
except—
(1) payments authorized by section 12(k) of the Act of
September 1, 1916, as amended [D.C. Code,
sec. 5‑716]; or
(2) benefits authorized by section 8191 of title 5, United States Code. Such beneficiaries shall only receive
benefits under such section 8191 that are in excess of the benefits
received under this
part [subchapter].
(g) No
benefit paid under this
part [subchapter] shall be
subject to execution or attachment.
(h) On
October 1 of each fiscal year beginning after the effective date of this subsection, the Bureau
shall adjust the level of the benefit payable
immediately before such October 1 under subsection (a),
to reflect the annual percentage change in the Consumer Price Index for All
Urban Consumers, published by the Bureau of Labor Statistics, occurring in the
1‑year period ending on June 1 immediately preceding such
October 1.
(i) The
amount payable under subsection (a)
with respect to the death of a public safety officer shall be the amount payable
under subsection (a) as of the date of death
of such officer.
(j)(1) No
benefit is payable under this part [subchapter] with respect to
the death of a public
safety officer if a benefit is paid under this
part [subchapter] with respect to the
disability of such officer.
(2) No benefit
is payable under this
part [subchapter] with
respect to the disability of a public safety officer if a benefit is payable under this part [subchapter] with respect to the death of such public
safety officer.
(k) For
purposes of this section, if a public safety officer dies as the direct
and proximate result of a heart attack or stroke,
that officer shall be presumed to have died as the direct and proximate result of a personal
injury sustained in the line of duty, if—
(1) that officer,
while on duty—
(A) engaged
in a situation, and such engagement
involved nonroutine stressful or strenuous
physical law enforcement, fire suppression, rescue,
hazardous material response, emergency medical services, prison security, disaster
relief, or other emergency response
activity; or
(B) participated
in a training exercise, and such participation
involved nonroutine stressful or strenuous
physical activity;
(2) that officer
died as a result of a heart attack or stroke
suffered—
(A) while engaging
or participating as described under paragraph (1);
(B) while still on that duty
after so engaging or participating; or
(C) not later than 24 hours after so engaging or participating; and
(3) such presumption
is not overcome by competent
medical evidence to the contrary.
(l) For purposes of subsection (k),
"nonroutine stressful or strenuous
physical" excludes actions of a clerical, administrative, or nonmanual
nature.
(m) The
Bureau may suspend or end collection action on an amount disbursed
pursuant to a statute enacted retroactively or otherwise disbursed in error
under subsection (a) or (c), where such collection would be impractical, or
would cause undue hardship to a debtor who acted in good faith.
42 U.S.C § 3796a Sec. 1202 Limitations
No
benefit shall be paid under this part [subchapter]—
(1) if the death or catastrophic injury was caused
by the intentional misconduct of the public safety officer
or by such officer's intention to bring about his death
or catastrophic injury;
(2) if the public
safety officer was voluntarily
intoxicated at the time of his death or catastrophic injury;
(3) if the public
safety officer was performing
his duties in a grossly negligent manner at the time of his death or catastrophic
injury;
(4) to any individual
who would otherwise be entitled to a benefit under this part [subchapter] if such
individual's actions were a substantial
contributing factor to the death or catastrophic injury of the public safety officer; or
(5) with respect to any individual employed in a capacity other than a civilian capacity.
42 U.S.C. § 3796a‑1 Sec. 1203
National programs for families of public safety officers who have died
in line of duty
The Director is authorized to use no less than $150,000 of the
funds appropriated for this
part [subchapter] to
maintain and enhance national peer support and counseling programs to assist
families of public safety officers who
have died in the line
of duty.
42 U.S.C. § 3796b Sec. 1204 Definitions
As
used in this
part [subchapter]—
(1) "catastrophic
injury" means consequences [sic] of an injury that permanently
prevent an individual from performing any gainful work;
(2) " chaplain"
includes any individual serving as an officially
recognized or designated member of a legally organized volunteer fire
department or legally organized police department, or an officially recognized or designated public employee
of a legally organized fire or police department who was responding to a fire, rescue, or police emergency;
(3) "child"
means any natural, illegitimate,
adopted, or posthumous
child or stepchild of a deceased public
safety officer who, at the time of the public
safety officer's death, is—
(i) 18 years of age
or under;
(ii) over 18 years of age and
a student as defined in section 8101
of title 5, United States Code; or
(iii) over 18 years of age and incapable of self‑support because of physical or
mental disability;
(4) "firefighter"
includes an individual serving as an officially
recognized or designated member of a legally organized volunteer fire
department;
(5) "intoxication"
means a disturbance of mental
or physical faculties resulting from the introduction of alcohol
into the body as evidenced by—
(i) a post‑mortem blood alcohol level of .20 per
centum or greater; or
(ii) a post‑mortem blood
alcohol level of at least .10 per centum but less than .20 per centum
unless the Bureau receives convincing evidence that the public safety officer was not acting in an
intoxicated manner immediately prior to his death;
or
resulting from drugs or other substances
in the body;
(6) "law enforcement officer" means an
individual involved in crime and
juvenile delinquency control or reduction, or enforcement of the criminal laws (including juvenile delinquency),
including, but not limited to, police, corrections,
probation, parole, and judicial officers;
(7) "member of a rescue squad or
ambulance crew" means an officially
recognized or designated public employee member of a rescue squad or ambulance crew;
(8) "public
agency" means the United States, any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the United
States, Guam, American Samoa, the Trust Territory of the Pacific Islands, the
Commonwealth of the Northern Mariana Islands, and any territory or possession
of the United States, or any unit of local government,
department, agency, or instrumentality of any of the foregoing; and
(9) "public
safety officer" means—
(A) an individual serving a public agency in an official
capacity, with or without compensation, as a law enforcement officer, as a firefighter, as a chaplain,
or as a member of a rescue squad or
ambulance crew;
(B) an employee
of the Federal Emergency Management Agency who is performing official duties of the Agency in an
area, if those official duties—
(i) are related to a
major disaster or emergency that has been, or is later, declared to exist with
respect to the area under the Robert T. Stafford
Disaster Relief and Emergency Assistance Act; and
(ii) are determined by the
Director of the Federal Emergency Management Agency to be hazardous duties; or
(C) an employee of a State, local, or tribal emergency management or civil defense
agency who is performing official duties in
cooperation with the Federal Emergency Management Agency in an area, if those official duties—
(i) are related to a
major disaster or emergency that has been, or is later, declared to exist with
respect to the area under the Robert T.
Stafford Disaster Relief and Emergency Assistance Act; and
(ii) are determined by the head
of the agency to be hazardous
duties.
42 U.S.C. § 3796c Sec. 1205 Administrative provisions
(a) The
Bureau is authorized to establish such rules,
regulations, and procedures as may be necessary to
carry out the purposes of this part [subchapter].
Such rules, regulations, and procedures will be determinative of
conflict of laws issues arising under this part [subchapter]. Rules, regulations,
and procedures issued under this part [subchapter]
may include regulations governing the recognition of agents or
other persons representing claimants under this part [subchapter] before the Bureau.
The Bureau may prescribe the maximum
fees which may be charged for services performed in connection with any claim
under this part [subchapter] before
the Bureau, and any agreement in violation of such rules and regulations shall
be void.
(b) In
making determinations under section 1201 the Bureau may utilize such administrative and
investigative assistance as may be available from State
and local agencies. Responsibility for making final
determinations shall rest with the Bureau.
(c) Notwithstanding
any other provision of law, the Bureau is
authorized to use appropriated funds to
conduct appeals of public safety officers' death and disability claims.
42 U.S.C. § 3796c‑1 Expedited payment for public
safety officers involved in the prevention, investigation, rescue, or recovery
efforts related to a terrorist attack
(a) In general. Notwithstanding
the limitations of subsection (b) of section 1201
or the provisions of subsections (c), (d), and (e) of such
section or section 1202 of title I of the Omnibus Crime Control and Safe Streets
Act of 1968, upon certification (containing
identification of all eligible payees of benefits
pursuant to section 1201 of such Act) by a public
agency that a public safety officer employed by such
agency was killed or suffered a catastrophic injury producing permanent and total disability
as a direct and proximate result of a personal injury sustained
in the line of duty as described in section 1201 of such Act in
connection with prevention, investigation, rescue,
or recovery efforts related to a terrorist attack, the Director of the Bureau of
Justice Assistance shall authorize payment
to qualified beneficiaries, said payment to
be made not later than 30 days after receipt of such certification, benefits
[sic] described under subpart 1 of part L of [title I
of] such Act.
(b) Definitions. For purposes of this
section, the terms "catastrophic injury",
"public agency", and "public safety officer" have the same
meanings given such terms in section 1204
of title I of the Omnibus Crime Control and Safe
Streets Act of 1968.
42
[On and after December 26, 2007], funds available to conduct appeals
under section 1205(c)
of [title I of the Omnibus Crime Control and Safe Streets Act of 1968],
which includes all claims processing, shall be available also for the same
under subpart 2
of . . . part L [of such title I] and under any statute
authorizing payment of benefits
described under subpart 1 thereof,
and for appeals
from final
decisions of the Bureau (under such part or any such statute) to the Court of Appeals for the Federal Circuit, which shall have
exclusive jurisdiction thereof (including those, and any related matters, pending), and for expenses of representation of hearing examiners (who shall be presumed
irrebuttably to enjoy quasi-judicial immunity in the discharge of their duties under such part or any such
statute) in connection with litigation against them arising from such discharge.
EDUCATIONAL ASSISTANCE TO DEPENDENTS OF PUBLIC SAFETY
OFFICERS KILLED OR DISABLED IN THE LINE OF DUTY
Pub. L. No. 90-351, Title I, Part L, Subpart 2
[42 U.S.C. Chapter 46, subchapter XII, Part B]
1212 [§ 3796d‑1] Basic eligibility
1213 [§ 3796d‑2] Applications; approval
1215 [§ 3796d‑4] Discontinuation for unsatisfactory conduct
or progress
1218 [§ 3796d‑7] Authorization of appropriations
42 U.S.C. § 3796d Sec. 1211
Purposes
The
purposes of this subpart [this part of this subchapter] are—
(1) to enhance the appeal of service in public safety agencies;
(2) to extend the benefits of higher
education to qualified and deserving persons who, by virtue of the death of or total
disability of an eligible officer,
may not be able to afford it otherwise; and
(3) to allow the family members of eligible officers to attain the
vocational and educational status which they would have attained had a parent or spouse
not been killed or disabled in the line of duty.
42 U.S.C. § 3796d‑1 Sec. 1212 Basic eligibility
(a) Benefits.
(1) Subject to the availability of
appropriations, the Attorney General shall provide financial assistance to a dependent
who attends a program of education and is—
(A) the child of any
eligible public safety officer under subpart 1; or
(B) the spouse
of an officer described in subparagraph
(A) at the time of the officer's death or on the date of a totally and permanently
disabling injury.
(2) Except as provided in paragraph (3), financial
assistance under this
subpart [this part of this subchapter]
shall consist of direct payments to an eligible dependent and shall be computed on the
basis set forth in section 3532 of
title 38, United States Code.
(3) The financial
assistance referred to in paragraph (2)
shall be reduced by the sum of—
(A) the amount of educational assistance benefits from
other Federal, State, or local governmental sources to [sic] which the eligible dependent would otherwise be entitled to
receive; and
(B) the amount, if any, determined under section 1214(b).
(b) Duration
of benefits. No dependent
shall receive assistance under this subpart [this part of this subchapter]
for a period in excess of forty‑five months of full‑time education
or training or a proportional period of time for a part‑time program.
(c) Age
limitation for dependent children. No dependent child
shall be eligible for assistance under this
subpart [this part of this subchapter]
after the child's 27th birthday absent a finding by the Attorney General of extraordinary circumstances precluding the
child from pursuing a program of education.
42 U.S.C. § 3796d‑2 Sec. 1213 Applications; approval
(a) Application. A person seeking assistance
under this
subpart [this part of this subchapter]
shall submit an application
to the Attorney General in such form and containing such
information as the Attorney General reasonably may require.
(b) Approval. The Attorney General
shall approve an application
for assistance under this subpart [this part of this subchapter]
unless the Attorney General finds that—
(1) the dependent
is not eligible for, is no longer eligible for, or is not entitled to the assistance for which application
is made;
(2) the dependent's
selected educational institution fails to meet a requirement under this
subpart [this part of this subchapter]
for eligibility;
(3) the dependent's
enrollment in or pursuit of the educational program selected would fail to meet
the criteria established in this subpart [this part of this subchapter] for programs; or
(4) the dependent
already is qualified by previous education or training for the educational,
professional, or vocational objective for which the educational
program is offered.
(c) Notification. The Attorney General
shall notify a dependent
applying for assistance
under this
subpart [this part of this subchapter]
of approval or disapproval of the application in writing.
42 U.S.C. § 3796d‑3 Sec. 1214
Regulations
(a) In general. The Attorney General may promulgate reasonable and necessary regulations to implement this subpart [this part of this subchapter].
(b) Sliding
scale. Notwithstanding section 1213(b), the Attorney
General shall issue regulations regarding
the use of a sliding scale based on financial need
to ensure that an eligible dependent who is in
financial need receives priority in receiving funds under this
subpart [this part of this subchapter].
42 U.S.C. § 3796d‑4 Sec. 1215
Discontinuation for unsatisfactory conduct or progress
The Attorney General may discontinue assistance
under this
subpart [this part of this subchapter]
when the Attorney General finds that, according to the regularly prescribed
standards and practices of the educational
institution, the recipient fails to maintain satisfactory progress as
described in section 484(c) of the Higher
Education Act of 1965.
42 U.S.C. § 3796d‑5 Sec. 1216
Special rule
(a) Retroactive
eligibility. Notwithstanding any other
provision of law, each dependent of a Federal law enforcement officer killed in the line of duty on or after January 1, 1978, and each dependent of a public safety officer killed in the line of
duty on or after January 1, 1978, shall be
eligible for assistance under this subpart [this part of this subchapter],
subject to the other limitations of this subpart [this part of this subchapter].
(b) Retroactive assistance. The Attorney General may provide retroactive assistance to dependents
eligible under this section for each
month in which the dependent pursued a program of education
at an eligible educational institution. The Attorney General shall apply the
limitations contained in this subpart [this part of this subchapter] to retroactive assistance.
(c) Prospective
assistance. The Attorney
General may provide prospective assistance to dependents eligible under this section on the same basis as assistance
to dependents otherwise eligible. In
applying the limitations on assistance under this subpart [this part of this subchapter],
the Attorney General shall include assistance provided retroactively. A dependent eligible under this section may
waive retroactive assistance and apply only for prospective assistance on the
same basis as dependents otherwise eligible.
42 U.S.C. § 3796d‑6 Sec. 1217 Definitions
For
purposes of this
subpart [this part of this subchapter]:
(1) The term "Attorney
General" means the Attorney General of the
(2) The term "program of education" means any curriculum or
any combination of unit courses or subjects pursued at an eligible educational institution, which
generally is accepted as necessary to fulfill requirements for the attainment
of a predetermined and identified educational, professional, or vocational
objective. It includes course work for
the attainment of more than one objective if in addition to the previous
requirements, all the objectives generally are recognized as reasonably related
to a single career field.
(3) The term "eligible educational institution" means
an institution which—
(A) is described in section 481
of the Higher Education Act of 1965, as in effect on the date of the enactment
of this section [i.e., Oct. 3,
1996]; and
(B) is eligible to participate in programs
under title IV of such Act.
42 U.S.C. § 3796d‑7 Sec. 1218
Authorization of appropriations
There
are authorized to be appropriated to carry out this subpart [this part of this subchapter]
such sums as may be necessary.
*************************************
Part 32 ‑ PUBLIC
SAFETY OFFICERS' DEATH, DISABILITY, AND EDUCATIONAL ASSISTANCE BENEFIT CLAIMS
Sec.
Subpart A ‑ General
Provisions
Sec.
32.2 Computation of time; filing.
32.4 Terms; construction, severability.
32.7 Fees for representative services.
32.8 Exhaustion of administrative remedies.
Subpart B ‑ Death
Benefit Claims
Sec.
32.14 PSOB Office determination.
32.15 Prerequisite certification.
32.17 Request for Hearing Officer determination.
Subpart C ‑ Disability
Benefit Claims
Sec.
32.24 PSOB Office determination.
32.25 Prerequisite certification.
32.27 Motion for reconsideration of negative disability
finding.
32.28 Reconsideration of negative disability
finding.
32.29 Request for Hearing Officer determination.
Subpart D ‑ Educational
Assistance Benefit Claims
Sec.
32.34 PSOB Office determination.
32.37 Request for Hearing Officer determination.
Subpart E ‑ Hearing
Officer Determinations
Sec.
32.42 Time for filing request for determination.
32.43 Appointment and assignment of Hearing
Officers.
32.44 Hearing Officer determination.
Subpart F ‑ Director
Appeals & Reviews
Sec.
32.52 Time for filing Director appeal.
Authority
42 U.S.C.
ch. 46, subch. XII; 42 U.S.C. 3782(a),
3787, 3788, 3791(a), 3793(a)(4)
& (b), 3795a,
3796c‑1, 3796c‑2;
sec. 1601, title XI, Pub. L. 90‑351,
82 Stat. 239; secs. 4
through 6, Pub. L. 94‑430,
90 Stat. 1348; secs. 1 and 2, Pub. L. 107‑37,
115 Stat. 219.
This part implements the Act,
which, as a general matter, authorizes the payment of three different legal gratuities:
(a) Death benefits;
(b) Disability benefits; and
(c) Educational assistance benefits.
Subpart A ‑ General Provisions
32.2 Computation of time; filing.
32.4 Terms; construction, severability.
32.7 Fees for representative services.
32.8 Exhaustion of administrative remedies.
This subpart contains provisions generally applicable
to this part.
§ 32.2 Computation
of time; filing.
(a) In
computing any period of time prescribed or allowed, the day of the act, event,
or default from which the designated period of time begins to run shall not be
included. The last day of the period so
computed shall be included, unless it is a Saturday, a Sunday, or a federal
legal holiday, or, when the act to be done is a filing
with the PSOB Office, a day on which weather or other
conditions have caused that Office to be closed or inaccessible, in which event
the period runs until the end of the next day that is not one of the
aforedescribed days.
(b) A
filing is deemed filed with the PSOB
Office, a Hearing Officer, the Director, or any
other OJP office, ‑officer, ‑employee,
or ‑agent, only on the day that it actually
is received at the office of the same.
When a filing is prescribed to be filed with more than one of the
foregoing, it shall be deemed filed as of the day the last such one so receives
it.
(c) Notice
is served by the PSOB Office upon an individual on the day that it is—
(1) Mailed, by
(2) Delivered to a courier or other
delivery service, addressed to the individual (or to his representative) at his
(or his representative's) last address known to such Office; or
(3) Sent by electronic means such as
telefacsimile or electronic mail, addressed to the individual (or to his
representative) at his (or his representative's) last telefacsimile number or
electronic-mail address, or other electronic address, known to such Office.
(d) In
the event of withdrawal or abandonment of a filing, the
time periods prescribed for the filing thereof shall not be tolled, unless, for
good cause shown, the Director grants a waiver.
(e) No
claim may be filed (or approved) under the Act, at 42 U.S.C. 3796(a)
or (b), with respect to an injury,
if a claim under the Act, at 42 U.S.C. 3796c‑1
or Public
Law 107‑37, has been approved, with respect to the
same injury.
(f) No
claim may be filed (or approved) under the Act, at 42 U.S.C. 3796c‑1
or Public
Law 107‑37, with respect to an injury,
if a claim under the Act, at 42 U.S.C. 3796(a)
or (b), has been approved, with respect to the
same injury.
Act means the Public Safety
Officers' Benefits Act of 1976 (generally codified at 42 U.S.C. 3796,
et seq.; part L of title I of the Omnibus
Crime Control and Safe Streets Act of 1968) (including (uncodified) sections 4 through 6 thereof (payment in
advance of appropriations, rule of construction
and severability, and effective date and
applicability)), as applicable (cf. § 32.4(d)) according to its effective date and
those of its various amendments (e.g., Sept. 29,
1976 (deaths of State and local law enforcement officers and firefighters); Jan. 1, 1978
(educational assistance (officer
died)); Oct. 1, 1984 (deaths of federal law enforcement officers and firefighters); Oct. 18,
1986 (deaths of rescue squad and ambulance
crew members); Nov. 29, 1990 (disabilities); Oct. 3, 1996
(educational assistance (officer
disabled)); Oct. 30, 2000 (disaster relief workers); Sept. 11,
2001 (chaplains and insurance beneficiaries); Dec. 15, 2003 (certain
heart attacks and strokes); and Apr. 5,
2006 (designated beneficiaries));
and also includes Public Law 107‑37 and section 611 of the
USA PATRIOT Act (both of which relate to payment of benefits, described
under subpart 1 of such part L, in
connection, respectively, with the terrorist attacks of Sept. 11, 2001, or
with such terrorist attacks as may occur after
Oct. 26, 2001), as well as the proviso under the Public Safety Officers Benefits heading in title II of
division B of section 6 of Public Law 110‑161.
Adopted child —
An individual is an adopted child of a public
safety officer
only if—
(1) The individual is legally adopted by the officer; or
(2) As of the injury
date, and not being a stepchild, the individual
was—
(i) Known by the officer not to be his biological
first-generation offspring; and
(ii) After the officer obtained such knowledge, in a parent-child relationship with him.
Authorized commuting
means travel (not being described in the Act,
at 42 U.S.C. 3796a(1), and not being
a frolic or detour) by a public
safety officer—
(1) In the course of actually responding
(as authorized) to a fire‑, rescue‑,
or police emergency, or to a particular and extraordinary request (by the public agency he serves) for that specific officer to perform public safety activity (including emergency response activity the agency is
authorized to perform), within his line of duty; or
(2) Between home and work (at a situs (for
the performance of line of duty activity or
action) authorized or required by the public agency he serves), or
between any such authorized or required situs and another—
(i) Using a vehicle
provided by such agency,
pursuant to a requirement or authorization by such agency that he use the same
for commuting; or
(ii) Using
a vehicle not provided by such
agency, pursuant to a requirement by such agency that he use the same for
work.
Biological means
genetic, but does not include circumstances where the genetic donation (under
the laws of the jurisdiction where the offspring is conceived) does not (as of
the time of such conception) legally confer parental rights and ‑obligations.
BJA means the Bureau of Justice Assistance, OJP.
Cause — A death, injury,
or disability is caused by intentional misconduct
if—
(1) The
misconduct is a substantial factor in
bringing it about; and
(2) It is a reasonably foreseeable result
of the misconduct.
Certification
means a formal assertion of a fact (or facts),
in a writing that is—
(1) Expressly intended to be relied upon by
the PSOB determining official in
connection with the determination of a claim
specifically identified therein;
(2) Expressly directed to the PSOB determining official;
(3) Legally subject to the provisions of 18 U.S.C. 1001 (false statements) and 1621 (perjury), and 28 U.S.C. 1746
(declarations under penalty of perjury), and expressly declares the same to be
so;
(4) Executed by a natural person with
knowledge of the fact (or facts) asserted
and with legal authority to execute the writing (such as to make the assertion
legally that of the certifying party), and expressly declares the same (as to
knowledge and authority) to be so;
(5) In such form as the Director
may prescribe from time to time;
(6) True, complete, and accurate (or, at a
minimum, not known or believed by the PSOB
determining official to contain any material falsehood, incompleteness, or
inaccuracy); and
(7) Unambiguous, precise, and unequivocal,
in the judgment of the PSOB determining
official, as to any fact asserted,
any matter otherwise certified, acknowledged, indicated, or declared, and
any provision of this definition.
Certification
described in the Act, at 42 U.S.C. 3796c‑1 or Public Law 107‑37
means a certification, acknowledging all the matter specified in § 32.5(f)(1) and (2)—
(1) In which the fact (or facts) asserted is the matter
specified in § 32.5(f)(3);
(2) That expressly indicates that all of
the terms used in making the assertion
described in paragraph (1) of this definition (or used in connection with
such assertion) are within the meaning of the Act,
at 42 U.S.C. 3796c‑1 or Public
Law 107‑37, and of this
part; and
(3) That otherwise satisfies the provisions
of the Act, at 42 U.S.C. 3796c‑1
or Public
Law 107‑37, and of this
part.
Chaplain
means a clergyman, or other
individual trained in pastoral counseling, who meets the definition provided in
the Act, at 42 U.S.C. 3796b(2).
Child of a public safety officer means an
individual—
(1) Who—
(i) Meets the definition
provided in the Act, at 42 U.S.C. 3796b(3),
in any claim—
(A) Arising from the public safety officer's death, in which the death was simultaneous (or
practically simultaneous) with the injury; or
(B) Filed after the public safety officer's death, in which the claimant is the officer's—
(1) Biological child, born after the injury
date;
(2) Adopted child, adopted by him after the injury date; or
(3) Stepchild, pursuant to a marriage
entered into by him after the injury date; or
(ii) In any claim not described in paragraph (1)(i) of this definition—
(A) Meets (as of the injury
date) the definition provided in the Act,
at 42 U.S.C. 3796b(3), mutatis mutandis
(i.e., with "deceased" and "death" being substituted, respectively, by "deceased
or disabled" and "injury"); or
(B) Having been born after the injury date, is described in paragraph (1)(i)(B)(1), (2), or (3) of this definition; and
(2) With respect to whom the public safety officer's parental rights have not been terminated, as of the injury date.
Commonly
accepted means generally agreed upon within the medical
profession.
Consequences
of an injury that permanently prevent an individual from performing any gainful
work means an injury whose
consequences permanently prevent an
individual from performing any gainful work.
Convincing evidence
means clear and convincing evidence.
Crime means an act or omission punishable as a criminal
misdemeanor or felony.
Criminal laws means that body of law that
declares what acts or omissions are crimes and prescribes
the punishment that may be imposed for the same.
Department or agency —
An entity is a department or agency within the meaning of the Act, at 42 U.S.C. 3796b(8),
and this part, only if the entity is—
(1) A court;
(2) An agency described in the Act, at 42 U.S.C. 3796b(9)(B)
or (C); or
(3) Otherwise a public entity—
(i) That is legally an
express part of the internal organizational structure of the relevant
government;
(ii) That has no legal
existence independent of such government; and
(iii) Whose obligations, acts,
omissions, officers, and employees are legally those of
such government.
Determination means the approval or
denial of a claim (including an affirmance or reversal pursuant to a motion for reconsideration under § 32.27), the determination described in the Act, at 42 U.S.C. 3796(c),
or any recommendation under § 32.54(c)(3).
Director means the Director of BJA.
Direct and
proximate cause —
Except as may be provided in the Act, at 42 U.S.C. 3796(k), something directly and
proximately causes a wound, condition, or cardiac-event,
if it is a substantial factor in bringing the
wound, condition, or cardiac-event about.
Direct and proximate result of an injury — Except as may be provided in the Act,
at 42 U.S.C. 3796(k), a death or
disability results directly and proximately from an injury
if the injury is a substantial factor in
bringing it about.
Disaster
relief activity means activity or an action encompassed within the
duties described in the Act, at 42 U.S.C. 3796b(9)(B)
or (C).
Disaster relief worker
means any individual who meets the definition provided in the Act, at 42 U.S.C. 3796b(9)(B)
or (C).
Disturbance includes any significant
and negative alteration, any significant negative deviation from the
objectively normal, or any significant deterioration.
Divorce means a legally-valid divorce from the bond of
wedlock (i.e., the bond of marriage), except that,
otherwise, and notwithstanding any other provision of law, a spouse
(or purported spouse) of an individual shall be
considered to be divorced from that individual within the meaning of this definition if, subsequent to his marriage (or
purported marriage) to that individual (and while that individual is living), the
spouse (or purported spouse)—
(1) Holds himself out as being divorced
from, or not being married to, the individual;
(2) Holds himself out as being married to
another individual; or
(3) Was a party to a ceremony purported by
the parties thereto to be a marriage between the spouse
(or purported spouse) and another individual.
Drugs or other substances
means controlled substances within the meaning of the drug control and
enforcement laws, at 21 U.S.C. 802(6).
Educational/academic
institution means an institution whose primary purpose is
educational or academic learning.
Eligible payee means—
(1) An individual (other than the officer) described in the Act, at 42 U.S.C. 3796(a),
with respect to a claim under subpart B of this part; or
(2) An individual described in the Act, at 42 U.S.C. 3796(b),
with respect to a claim under subpart C of this part.
Emergency
medical services
means—
(1) Provision of first-response emergency
medical care (other than in a permanent medical-care facility); or
(2) Transportation of persons in medical
distress (or under emergency conditions) to medical-care facilities.
Emergency
response activity means response to a fire‑, rescue‑, or police
emergency.
Employed by a
public agency — A public safety officer is employed, within
the meaning of the Act, at 42 U.S.C. 3796c‑1 or Public
Law 107‑37, by a public
agency, when he—
(1) Is employed
by the agency in a civilian capacity; and
(2) Is—
(i) Serving the agency in an official
capacity (with respect to officers
of any kind but disaster
relief workers); or
(ii) Performing official duties as described in the Act, at 42 U.S.C. 3796b(9)(B)
or (C) (with respect to disaster relief workers).
Employee does not include—
(1) Any independent
contractor; or
(2) Any individual who is not eligible to
receive death or disability benefits from the purported employer on the same
basis as a regular employee of such employer would.
Employment in
a civilian capacity refers to status as a civilian, rather than to the
performance of civilian functions.
Filing means any claim, request, motion, election, petition,
or appeal, and any item or matter (e.g., evidence,
certifications, authorizations, waivers,
legal arguments, or lists) that is, or may be, filed
with the PSOB Office.
Fire
protection means—
(2) Hazardous-material
response; or
(3) Emergency
medical services or rescue activity of the
kind performed by firefighters.
Fire‑,
rescue‑, or police emergency includes
disaster-relief emergency.
Firefighter means an individual who—
(1) Is trained in—
(i) Suppression of fire; or
(ii) Hazardous-material
response; and
(2) Has the legal authority and ‑responsibility
to engage in the suppression of fire, as—
(i) An employee
of the public agency he serves, which legally
recognizes him to have such (or, at a minimum, does not deny (or has not
denied) him to have such); or
(ii) An individual otherwise
included within the definition provided in the Act,
at 42 U.S.C. 3796b(4).
Functionally
within or ‑part of — No
individual shall be understood to be functionally within or ‑part of a public agency solely by virtue of an independent contractor relationship.
Gross negligence means great,
heedless, wanton, indifferent, or reckless departure from ordinary care,
prudence, diligence, or safe practice—
(1) In the presence of serious risks that
are known or obvious;
(2) Under circumstances where it is highly
likely that serious harm will follow; or
(3) In situations where a high degree of
danger is apparent.
Hazardous-material response means emergency response to the threatened or
actual release of hazardous materials, where life, property, or the environment
is at significant risk.
Heart attack means—
(1) A myocardial infarction; or
(2) A cardiac-event
(i.e., cessation, interruption,
arrest, or other similar disturbance of heart
function), not included in paragraph (1) of
this definition, that is—
(i) Acute; and
(ii) Directly
and proximately caused by a pathology (or pathological condition) of the
heart or of the coronary arteries.
Illegitimate child — An
individual is an illegitimate child of a public
safety officer only if he is a natural child of the officer, and the officer is not married to the other biological
parent at
(or at any time after) the time of his conception.
Incapable of
self‑support because of physical or mental disability — An
individual is incapable of self-support because of physical or mental
disability if he is under a disability within the meaning of the Social
Security Act, at 42 U.S.C. 423(d)(1)(A),
applicable mutatis mutandis.
Independent contractor includes
any volunteer, servant, employee, contractor, or agent,
of an independent contractor.
Injury means a traumatic physical wound (or a traumatized
physical condition of the body) directly and proximately
caused by external force (such as bullets, explosives, sharp instruments,
blunt objects, or physical blows), chemicals, electricity, climatic conditions, infectious disease, radiation,
virii, or bacteria, but does not include—
(1) Any occupational
disease; or
(2) Any condition of the body caused or
occasioned by stress or strain.
Injury date — Except with respect to
claims under the Act, at 42 U.S.C. 3796(k)
(where, for purposes of determining beneficiaries under the Act, at 42 U.S.C. 3796(a), it generally means the
time of the heart attack or stroke referred to in the Act, at 42 U.S.C. 3796(k)(2)), injury date means the
time of the line of duty injury that—
(1) Directly
and proximately results in the public
safety officer's death, with respect to a claim under—
(i) Subpart B
of this part; or
(ii) Subpart D
of this part, by virtue of his death; or
(2) Directly
(or directly and proximately) results
in the public safety officer's total and permanent
disability, with respect to a claim under—
(i) Subpart C
of this part; or
(ii) Subpart D
of this part, by virtue of his disability.
Instrumentality means entity, and does
not include any individual, except that no entity shall be considered an
instrumentality within the meaning of the Act,
at 42 U.S.C. 3796b(8), or this part, unless, as of the injury
date,
(1) The entity—
(i) Is legally
established, ‑recognized, or ‑organized, such that it has legal
existence; and
(ii) Is so organized and
controlled, and its affairs so conducted, that it operates and acts solely and
exclusively as a functional part of the relevant government, which legally
recognizes it as such (or, at a minimum, does not deny (or has not denied) it
to be such); and
(2) The entity's—
(i) Functions and duties
are solely and exclusively of a public character;
(ii) Services are provided
generally to the public as such government would provide if acting directly
through its public employees (i.e., they are provided without
regard to any particular relationship (such as a subscription) a member of the
public may have with such entity); and
(iii) Acts and omissions are, and are
recognized by such government as (or, at a minimum, not denied by such
government to be), legally—
(A) Those of such government, for purposes
of sovereign immunity; or
(B) The responsibility of such government,
for purposes of tort liability.
Intention — A death,
injury, or disability is brought
about by a public safety officer's
intention if—
(1) An intentional
action or activity of his is a substantial factor in bringing it about; and
(2) It is a reasonably foreseeable result
of the intentional action or activity.
Intentional
action or activity means activity or action (other than line of duty activity or action), including
behavior, that is—
(1) A result of conscious volition, or
otherwise voluntary;
(2) Not a result of legal insanity or of
impulse that is legally and objectively uncontrollable; and
(3) Not performed under legal duress or
legal coercion of the will.
Intentional misconduct —
A public safety officer's action or activity is intentional misconduct
if—
(1) As of the date it is performed,
(A) Is in violation of, or otherwise
prohibited by, any statute, rule, regulation, condition of employment or
service, official mutual-aid agreement, or other law; or
(B) Is contrary to the ordinary, usual, or
customary practice of similarly-situated officers
within the public agency in which he
serves; and
(ii) He knows, or reasonably
should know, that it is so in
violation, prohibited, or contrary; and
(i) Is intentional; and
(ii) Is—
(A) Performed without reasonable
excuse; and
(B) Objectively unjustified.
Involvement — An individual is
involved in crime and juvenile delinquency control or
reduction, or enforcement of the criminal laws
(including juvenile delinquency), only if he is an officer of a public agency and, in that capacity, has legal authority
and ‑responsibility to arrest, apprehend, prosecute, adjudicate, correct
or detain (in a prison or other detention or confinement facility), or
supervise (as a parole or probation officer), persons who are alleged or found
to have violated the criminal laws, and is recognized by such agency, or the
relevant government (or, at a minimum, not denied by such agency, or the
relevant government), to have such authority and responsibility.
Itemized description of representative services
provided — A description of representative services
provided is itemized only when it includes—
(1) The beginning and end dates of the
provision of the services;
(2) An itemization of the services provided
and the amount of time spent in providing them; and
(3) An itemization of the expenses incurred
in connection with the services provided for which reimbursement is sought.
Kinds of public safety officers — The
following are the different kinds of public
safety officers:
(2) Firefighters;
(3) Chaplains;
(4) Members
of rescue squads or ambulance crews; and
Law enforcement means enforcement
of the criminal
laws, including—
(1) Control or reduction of crime
or of juvenile delinquency;
(2) Prosecution or adjudication of
individuals who are alleged or found to have violated such laws;
(3) Prison security activity; and
(4) Supervision of individuals on parole or
probation for having violated such laws.
Line of duty activity or action —
Activity or an action is performed in the line of duty, in the case of a public safety officer who is—
(1) A law
enforcement officer, a firefighter, or a member of a rescue squad or ambulance crew—
(i) Whose primary function
(as applicable) is public safety activity,
only if, not being described in the Act, at 42 U.S.C. 3796a(1), and not being a
frolic or detour, it is activity or an action that he is obligated or authorized by statute, rule,
regulation, condition of employment or service, official mutual-aid agreement,
or other law, to perform (including any social, ceremonial, or athletic
functions (or any official training programs
of his public agency) to which he is assigned, or for which he is
compensated), under the auspices of the public
agency he serves, and such
agency (or the relevant government) legally recognizes that activity or action
to have been so obligated or authorized at the time performed (or, at a
minimum, does not deny (or has not denied) it to have been such); or
(ii) Whose primary function is
not public safety activity, only if, not being
described in the Act, at 42 U.S.C. 3796a(1), and not being a
frolic or detour—
(A) It is activity or an action that he is obligated or authorized by statute,
rule, regulation, condition of employment or service, official mutual-aid
agreement, or other law, to perform, under the auspices of the public agency he serves, and such
agency (or the relevant government) legally recognizes that activity or action
to have been so obligated or authorized at the time performed (or, at a
minimum, does not deny (or has not denied) it to have been such); and
(B) It is performed (as applicable) in the
course of public safety activity (including emergency response activity the agency is
authorized to perform), or taking part (as a trainer or trainee) in an official training program of his public agency
for such activity, and such agency
(or the relevant government) legally recognizes it to have been such at the
time performed (or, at a minimum, does not deny (or has not denied) it to have
been such);
(2) A disaster
relief worker, only if, not being described in the
Act, at 42 U.S.C. 3796a(1), and
not being a frolic or detour, it is disaster relief
activity, and the agency he serves (or the relevant government), being described
in the Act, at 42 U.S.C. 3796b(9)(B)
or (C), legally recognizes
it to have been such at the time performed (or, at a minimum, does not deny (or
has not denied) it to have been such); or
(3) A chaplain,
only if, not being described in the Act, at 42 U.S.C. 3796a(1), and not being a
frolic or detour—
(i) It is activity or an
action that he is obligated or authorized by statute, rule, regulation,
condition of employment or service, official mutual-aid agreement, or other
law, to perform, under the auspices of the public agency he serves,
and such agency (or the relevant government) legally recognizes it to have been
such at the time performed (or, at a minimum, does not deny (or has not denied)
it to have been such); and
(ii) It is performed in the
course of responding to a fire‑, rescue‑,
or police emergency, and such
agency (or the relevant government) legally recognizes it to have been such
at the time performed (or, at a minimum, does not deny (or has not denied) it
to have been such).
Line of duty injury —
An injury is sustained in the line of
duty only if—
(1) It is sustained in the course of—
(i) Performance of line of duty activity or a line of duty action; or
(ii) Authorized commuting; or
(2) Convincing
evidence demonstrates that such injury
resulted from the injured party's status as a public
safety officer.
Mental faculties means brain function.
Natural child —
An individual is a natural child of a public
safety officer only if he is a biological child of the officer, and the officer
is alive at the time of his birth.
Occupational disease
means a disease (including an ailment or condition of the body) that routinely
constitutes a special hazard in, or is commonly regarded as a concomitant of,
an individual's occupation.
Official capacity —
An individual serves a public
agency in an official capacity only
if—
(1) He is officially authorized, ‑recognized,
or ‑designated (by such agency) as functionally within or ‑part of it; and
(2) His
acts and omissions, while so serving, are legally those of such agency, which legally recognizes them
as such (or, at a minimum, does not deny (or has not denied) them to be such).
Official duties means duties that are
officially authorized, ‑recognized, or ‑designated by an employing
entity, such that the performance of those duties is legally the action of such
entity, which legally recognizes it as such (or, at a minimum, does not deny
(or has not denied) it to be such).
Official
training program of a public safety
officer's public agency means a program—
(1) That is officially sponsored, ‑conducted,
or ‑authorized by the public agency in
which he serves; and
(2) Whose purpose is to train public safety officers of his kind in (or to improve their skills in), specific activity or actions encompassed within their
respective lines of duty.
Officially recognized or designated member of a
department or agency means a member of a department
or agency, or of an instrumentality, of a
government described in the Act, at 42 U.S.C. 3796b(8), who is officially
recognized (or officially designated) as such a member by the same.
Officially recognized or designated public employee of
a department or agency means a public employee
of a department or agency who is officially recognized (or officially
designated) as a public safety officer,
by the same.
Officially
recognized or designated public employee member of a squad or crew means a public employee member
of a squad or crew who is officially recognized (or officially designated)
as such a public employee member, by the public
agency under whose auspices the squad or crew operates.
OJP means the Office of Justice Programs,
U.S. Department of Justice.
Parent
means a father or a mother.
Parent-child relationship means a relationship between a public
safety officer and another individual, in which the officer has the role of
parent (other than biological
or legally-adoptive), as shown by convincing
evidence.
Performance
of duties in a grossly negligent manner at the time of death or catastrophic injury means gross
negligence, as of or near the injury date, in the course of authorized commuting or performance of line of duty activity or a line of duty action,
where such negligence is a substantial
contributing factor in bringing such death
or injury about.
Posthumous
child — An individual is a posthumous child of a public safety officer only if he is a biological
child of the officer, and the officer is—
(1) Alive at the time of his
conception; and
(2) Deceased at or before the time of his
birth.
Prison
security activity means correctional or detention activity (in a prison
or other detention or confinement facility) of individuals who are alleged or
found to have violated the criminal laws.
PSOB determining official means, as applicable, any of the following:
(1) The PSOB Office;
(2) The Hearing
Officer; or
(3) The Director.
PSOB Office means the unit of BJA that directly administers the
Public Safety Officers' Benefits program, except that, with respect to the
making of any finding, determination, affirmance,
reversal, assignment, authorization, decision, judgment, waiver, or other
ruling, it means such unit, acting with the concurrence of OJP's
General Counsel.
Public employee means—
(1) An
employee of a government described in the Act, at 42 U.S.C. 3796b(8),
(or of a department or agency thereof) and
whose acts and omissions while so employed are legally those of such
government, which legally recognizes them as such (or, at a minimum, does not
deny (or has not denied) them to be such); or
(2) An employee of
an instrumentality of a government described in the Act, at 42 U.S.C. 3796b(8),
who is eligible to receive disability benefits (or whose survivors are eligible
to receive death benefits) from such government on the same basis as an employee
of that government (within the meaning of paragraph (1)
of this definition), or his survivors, would.
Public employee member of a squad or crew means a member of a squad or crew who is a public
employee under the auspices of whose public
agency employer the squad or crew operates.
Public employee of a department or agency
means a public employee whose public agency employer is the department or agency.
Public safety
activity means any of the following:
(1) Law
enforcement;
(2) Fire protection;
(3) Rescue
activity; or
(4) The provision of emergency medical services.
Qualified
beneficiary — An individual is a qualified beneficiary under
the Act, at 42 U.S.C. 3796c‑1
or Public
Law 107‑37, only if he is an eligible payee—
(1) Who qualifies as a beneficiary pursuant
to a final agency determination
that—
(i) The requirements of the Act, at 42 U.S.C. 3796(a)
or (b) (excluding the limitations relating to
appropriations), as applicable, have been met; and
(ii) The provisions of this part, as applicable, relating to payees otherwise
have been met; and
(2) Whose actions were not a substantial contributing factor to the death of the public safety officer (with respect to a
claim under subpart B of this
part).
Representative
services include expenses incurred in connection with such
services.
Rescue
activity means search or rescue assistance in locating or
extracting from danger persons lost, missing, or in imminent danger of serious
bodily harm.
Rescue
squad or ambulance crew means a squad or crew whose members are rescue
workers, ambulance drivers, paramedics, health-care responders, emergency
medical technicians, or other similar workers, who—
(1) Are trained in rescue
activity or the provision of emergency medical
services; and
(2) As such members, have the legal authority
and ‑responsibility to—
(i) Engage in rescue activity; or
(ii) Provide emergency medical services.
Spouse means an individual's lawful husband,
‑wife, ‑widower, or ‑widow (i.e., with whom the
individual lawfully entered into marriage), and includes a spouse living apart from the individual, other than pursuant
to divorce, except that, notwithstanding any other
provision of law—
(1) For an individual purporting to be a spouse on the basis of a common-law marriage
(or a putative marriage) to be considered a spouse within the
meaning of this definition, it is necessary (but not sufficient) for the jurisdiction of domicile of the parties to recognize such
individual as the lawful spouse of the other; and
(2) In deciding who may be the spouse of a public safety officer—
(i) The relevant jurisdiction of domicile is the officer's (as of the injury
date); and
(ii) With respect to a claim
under subpart B of this
part, the relevant date is that of the officer's
death.
Stepchild — An individual is a stepchild of a public
safety officer only if the individual is the
legally-adoptive or biological first-generation
offspring of a public safety officer's current,
deceased, or former spouse, which offspring (not having been legally adopted
by the officer)—
(1) Was conceived before the marriage
of the officer and the
spouse; and
(2) As of the injury
date—
(i) Was known by the officer not to be his biological
first-generation offspring; and
(ii) After the officer obtained such knowledge—
(A) Received over half of his support from the officer;
(B) Had as his principal place of abode the
home of the officer and was a member of the
officer's household; or
(C) Was in a parent-child relationship with the officer.
Stress or strain
includes physical stress or strain, mental stress or strain, post-traumatic
stress disorder, and depression.
Stroke means
cerebral vascular accident.
Student means an individual who meets the definition provided in the Act, at 42 U.S.C. 3796b(3)(ii),
with respect to an educational/academic institution.
Substantial
contributing factor – A factor substantially
contributes to a death, injury, or disability,
if the factor—
(1) Contributed to the death, injury, or
disability to a significant degree; or
(2) Is a substantial
factor in bringing the death, injury, or disability about.
Substantial factor — A factor
substantially brings about a death, injury, disability, wound, condition, cardiac-event, heart attack, or stroke
if—
(1) The factor alone was sufficient to have
caused the death, injury,
disability, wound, condition, cardiac-event, heart attack, or stroke; or
(2) No other factor (or combination of
factors) contributed to the death, injury, disability, wound, condition, cardiac-event,
heart attack, or stroke to
so great a degree as it did.
Suppression of fire
means extinguishment, physical prevention, or containment of fire, including
on-site hazard evaluation.
Terrorist attack — An event or act is a
terrorist attack within the meaning of the Act,
at 42 U.S.C. 3796c‑1(a), only if
the Attorney General determines that—
(1) There
is a reasonable indication that the event or act
was (or would be or would have been, with respect to a priori prevention or investigation efforts) an act of domestic or international
terrorism within the meaning of the criminal terrorism laws, at 18 U.S.C. 2331; and
(2) The event or act (or the circumstances of death or injury) was of
such extraordinary or cataclysmic character as to make particularized factual
findings impossible, impractical, unnecessary, or unduly burdensome.
Voluntary
intoxication at the time of death or catastrophic injury means the following, as shown by any commonly-accepted tissue, ‑fluid, or ‑breath
test or by other competent evidence:
(1) With respect to alcohol,
(i) In any claim arising
from a public safety officer's
death in which the death was simultaneous (or
practically simultaneous) with the injury, it means intoxication as defined in the Act, at 42 U.S.C. 3796b(5),
unless convincing evidence demonstrates that the
officer did not introduce the alcohol into his body intentionally; and
(ii) In any claim not described
in paragraph (1)(i) of this definition, unless convincing evidence demonstrates that the officer did not introduce the alcohol
into his body intentionally, it
means intoxication—
(A) As defined in the Act, at 42 U.S.C. 3796b(5),
mutatis mutandis (i.e., with "post-mortem"
(each place it occurs) and "death" being
substituted, respectively, by "post-injury" and
"injury"); and
(B) As of the injury date; and
(2) With respect to drugs
or other substances, it means intoxication
as defined in the Act, at 42 U.S.C. 3796b(5), as evidenced
by the presence (as of the injury date) in the body of
the public safety officer—
(i) Of any controlled
substance included on Schedule I of the drug control and enforcement laws
(see 21 U.S.C. 812(a)),
or any controlled substance included on Schedule II, III, IV, or V of
such laws (see 21 U.S.C. 812(a))
and with respect to which there is no therapeutic range or maximum recommended
dosage, unless convincing evidence demonstrates
that such introduction was not a culpable act of the
officer's under the criminal laws; or
(ii) Of any controlled
substance included on Schedule II, III, IV, or V of the drug control
and enforcement laws (see 21 U.S.C. 812(a)) and with respect to
which there is a therapeutic range or maximum recommended dosage—
(A) At levels above or in excess of such
range or dosage, unless convincing evidence
demonstrates that such introduction was not a culpable act of the officer's under the criminal
laws; or
(B) At levels at, below, or within such range
or dosage, unless convincing evidence
demonstrates that—
(1) Such
introduction was not a culpable act of the officer's
under the criminal laws; or
(2) The officer was not acting in an intoxicated manner
immediately prior to the injury date.
§ 32.4 Terms;
construction, severability; effect.
(a) In
determining the meaning of any provision of this part,
unless the context should indicate otherwise, the first three provisions of 1 U.S.C. 1 (rules of construction) shall
apply.
(b) If
benefits are denied to any individual pursuant to the
Act, at 42 U.S.C. 3796a(4), or
otherwise because his actions were a substantial
contributing factor to the death of the public safety officer, such individual
shall be presumed irrebuttably, for all purposes, not to have survived the
officer.
(c) Any
provision of this part held to be invalid or
unenforceable by its terms, or as applied to any person or circumstance, shall
be construed so as to give it the maximum effect permitted by law, unless such
holding shall be one of utter invalidity or unenforceability, in which event
such provision shall be deemed severable herefrom
and shall not affect the remainder hereof or the
application of such provision to other persons not similarly situated or to
other, dissimilar circumstances.
(d) Unless
the same should expressly provide otherwise (e.g., by use of the word "hereafter" in an appropriations
proviso), any amendment to the Act (or any
statutory enactment otherwise directly referent or ‑applicable to the program
that is the subject of this part), shall apply only
with respect to injuries (or, in connection with claims
under the Act, at 42 U.S.C. 3796(k), shall
apply only with respect to heart attacks or strokes referred to in the Act, at 42 U.S.C. 3796(k)(2))
occurring on or after the date it takes effect.
(a) Except
as otherwise may be expressly provided in the Act
or this part, a claimant has the burden of
persuasion as to all material issues of fact, and by the standard of proof of
"more likely than not."
(b) Except
as otherwise may be expressly provided in this part,
the PSOB determining official may, at
his discretion, consider (but shall not be bound by) the factual findings of a public agency.
(c) Rules 301 (presumptions), 401
(relevant evidence), 402 (admissibility), 602 to 604 (witnesses), 701 to 704
(testimony), 901 to 903 (authentication), and 1001 to 1007 (contents of writings, records, and
photographs) of the Federal Rules of Evidence shall apply, mutatis mutandis, to all filings, hearings,
and other proceedings or matters. No
extrinsic evidence of authenticity as a condition precedent to admissibility
shall be required with respect to any document purporting to bear the signature
of an expert engaged by the BJA.
(d) In
determining a claim, the PSOB
determining official may, at his discretion, draw an
adverse inference if, without reasonable justification or excuse—
(1) A claimant fails or refuses to file with the PSOB Office—
(i) Such material‑
or relevant evidence or ‑information within his
possession, control, or ken as may reasonably be requested from time to time by
such official; or
(ii) Such authorizations or
waivers as may reasonably be requested from time to time by such official to enable him (or to assist in
enabling him) to obtain access to material- or relevant evidence
or ‑information of a medical, personnel, financial, or other
confidential nature;
(2) A claimant
under subpart C of this
part fails or refuses to appear in person—
(i) At his hearing under subpart E of this part
(if there be such a hearing); or
(ii) Before such official (or otherwise permit such official
personally to observe his condition), at a time and location reasonably
convenient to both, as may reasonably be requested by such official; or
(3) A claimant under subpart B
or C of this part fails
or refuses to apply for (or to pursue to completion), in timely fashion, the
benefits, if any, described in § 32.15(a)(1)(i)
or § 32.25(a)(1)(i),
respectively.
(e) In determining
a claim, the PSOB determining official
may, at his discretion, draw an inference of voluntary intoxication at the time
of death or catastrophic injury if, without reasonable justification or
excuse, appropriate toxicologic analysis (including autopsy, in the event of
death) is not performed, and/or the results thereof are not filed
with the PSOB Office, where there is credible evidence suggesting that intoxication may have been a factor
in the death or injury, or that the public
safety officer—
(1) As of or near the injury
date, was—
(i) A consumer of alcohol—
(A) In amounts likely to produce a
blood-alcohol level of .10 per centum or greater in individuals similar to
the officer in weight and sex; or
(B) In any amount, after ever having been
treated at an inpatient facility for alcoholism;
(ii) A consumer of controlled
substances included on Schedule I of the drug control and enforcement laws
(see 21 U.S.C. 812(a)); or
(iii) An abuser of controlled
substances included on Schedule II, III, IV, or V of the drug control
and enforcement laws (see 21 U.S.C. 812(a)); or
(2) Immediately prior to the injury date, was under the influence of alcohol or drugs or other substances or otherwise acting
in an intoxicated manner.
(f) In
determining a claim under the Act, at 42 U.S.C. 3796c‑1
or Public
Law 107‑37, the certification described
therein shall constitute prima facie
evidence—
(1) Of the
public agency's acknowledgment that the public
safety officer, as of the injury date, was—
(i) A public safety officer of the kind
described in the certification;
(ii) Employed by the agency (i.e., performing official functions for,
or on behalf of, the agency); and
(iii) One of the following:
(A) With respect to a law enforcement officer, an officer of the agency;
(B) With respect to a firefighter,
(1) An
officially recognized or designated member
of the agency (if it is a legally
organized volunteer fire department); or
(2) An
employee of the agency;
(C) With respect to a chaplain,
(1) An
officially recognized or designated member
of the agency (if it is a legally
organized police or volunteer fire department); or
(2) An
officially recognized or designated public
employee of the agency (if it is a
legally organized police or fire department);
(D) With respect to a member of a rescue squad or ambulance crew,
an officially recognized or designated
public employee member of one of the agency's
rescue squads or ambulance crews; or
(E) With respect to a disaster relief worker, an employee
of the agency (if it is described in the Act, at 42 U.S.C. 3796b(9)(B)
or (C));
(2) Of the
public agency's acknowledgment that there are no eligible
payees other than those identified in the certification; and
(3) That the
public safety officer—
(i) Sustained a line of duty injury in connection with public
safety activity (or, otherwise, with efforts described in the Act, at 42 U.S.C. 3796c‑1
or Public Law 107‑37) related to a terrorist attack (under the
former statute) or to the terrorist attacks of September 11, 2001
(under the latter statute); and
(ii) As a direct and proximate result of such injury, was (as applicable)—
(A) Killed (with respect to a claim under subpart B of
this part); or
(B) Totally
and permanently disabled (with respect to a claim under subpart C
of this part).
(g) In
determining a claim, the PSOB determining official shall have, in
addition to the hearing-examiner powers
specified at 42 U.S.C. 3787 (hearings,
subpoenas, oaths, witnesses, evidence), and to the authorities specified at 42 U.S.C. 3788(b) ‑ (d)
(experts, consultants, government resources) and in the
Act and this part, the authority otherwise and
in any reasonable manner to conduct his own inquiries, as appropriate.
(h) Acceptance
of payment (by a payee (or on his behalf)) shall constitute prima facie evidence that the payee (or
the pay agent)—
(1) Endorses as his own (to the best of his
knowledge and belief) the statements and representations made, and the evidence
and information provided, pursuant to the claim; and
(2) Is aware (in connection with the claim)
of no—
(i) Fraud;
(ii) Concealment or withholding of
evidence or information;
(iii) False, incomplete, or inaccurate
statements or representations;
(iv) Mistake, wrongdoing, or
deception; or
(v) Violation of 18 U.S.C. 287 (false, fictitious, or fraudulent
claims), 1001 (false statements), or 1621 (perjury), or 42 U.S.C. 3795a
(falsification or concealment of facts).
(i) A
public safety officer's response to an
emergency call from his public agency for him
to perform public safety activity (including emergency response activity the agency is
authorized to perform) shall constitute prima
facie evidence of such response's non-routine character.
(a) No
payment shall be made to (or on behalf of) more than one individual, on the
basis of being a particular public safety officer's
spouse. If more
than one should qualify, payment shall be made to the one with whom the officer
considered himself, as of the injury date, to have the
closest relationship, except that the individual (if any) who was a member of
the officer's household (as of such date) shall be
presumed rebuttably to be such one, unless legal proceedings (by the officer
against such member, or vice versa)
shall have been pending then in any court.
(b) No
payment shall be made, save—
(1) To (or on behalf of) a living
beneficiary; and
(2) Pursuant to—
(i) A written claim filed by (or on
behalf of) such beneficiary; and
(ii) Except as provided in the Act, at 42 U.S.C. 3796(c),
approval of such claim.
(c) Any
amounts that would be paid but for the provisions of paragraph (b)
of this section shall be retained by the
(d) With
respect to the amount paid to a payee (or on his behalf) pursuant to a claim, the payee shall repay
the following, unless, for good cause shown, the Director
grants a full or partial waiver pursuant to the Act,
at 42 U.S.C. 3796(m):
(1) The entire amount, if approval of the claim
was based, in whole or in material part, on the payee's
(or any other person's or entity's) fraud, concealment or withholding of evidence or information, false, incomplete, or inaccurate
statements or representations, mistake, wrongdoing, or deception; or
(2) The entire amount subject to
divestment, if the payee's entitlement to such
payment is divested, in whole or in part, such as by the subsequent discovery
of individuals entitled to make equal or
superior claims.
(e) At
the discretion of the Director, repayment of amounts
owing or collectable under the Act or this part may, as applicable, be executed through
setoffs against future payments on financial claims
under subpart D of this part.
§ 32.7 Fees
for representative services.
(a) A
person seeking to receive any amount from (or with respect to) a claimant for representative services provided in connection
with any claim may petition
the PSOB Office for authorization
under this section. Such
petition shall include—
(1) An itemized description of the services;
(2) The total amount sought to be received,
from any source, as consideration for the
services;
(3) An itemized description of any
representative or other services provided to (or on behalf of) the claimant in connection with
other claims or causes of action, unrelated to the
Act, before any public agency or non-public
entity (including any insurer), arising from the public safety officer's death, disability, or injury;
(4) The total amount requested, charged,
received, or sought to be received, from any source, as consideration for the services described in paragraph (a)(3) of this
section;
(5) A statement of whether the petitioner has legal
training or is licensed to practice law, and a description of any special
qualifications possessed by the petitioner (other than legal training or a
license to practice law) that increased the value of his services to (or on behalf of) the claimant;
(6) A certification
that the claimant was provided,
simultaneously with the filing of the
petition, with—
(i) A copy of the petition; and
(ii) A letter advising the claimant that he could file his comments on the petition,
if any, with the PSOB Office, within thirty-three
days of the date of that letter;
and
(7) A copy of the letter described in paragraph (a)(6)(ii) of this section.
(b) Unless,
for good cause shown, the Director extends the time for
filing, no petition under paragraph (a) of this section shall
be considered if the petition is filed with the PSOB Office
later than one year after the date of the final
agency determination of the claim.
(c) Subject
to paragraph (d) of this section,
an authorization under paragraph (a)
of this section shall be based on consideration of the following factors:
(1) The nature of the services provided by the petitioner;
(2) The complexity of the claim;
(3) The level of skill and competence
required to provide the petitioner's
services;
(4) The amount of time spent on the claim by the petitioner;
(5) The results achieved as a function of the petitioner's services;
(6) The level of administrative or judicial
review to which the claim was
pursued and the point at which the
petitioner entered the proceedings;
(7) The ordinary, usual, or customary fee
charged by other persons (and by the
petitioner) for services of a similar nature; and
(8) The amount authorized
by the PSOB Office in similar cases.
(d) No
amount shall be authorized under paragraph (a)
of this section for—
(1) Any stipulated‑, percentage‑,
or contingency fee;
(2) Services at a rate in excess of that
specified in 5 U.S.C. 504(b)(1)(A)(ii)
(Equal Access to Justice Act); or
(3) Services provided in connection with—
(i) Obtaining or
providing evidence or information previously obtained by
the PSOB determining official;
(ii) Preparing the petition; or
(iii) Explaining or delivering an approved claim
to the claimant.
(e) Upon
a petitioner's failure
(without reasonable justification or excuse) to pursue in timely fashion his filed petition under paragraph (a) of this section, the Director may, at his discretion,
deem the same to be abandoned, as though never filed. Not less than thirty-three days prior
thereto, the PSOB Office shall serve
the petitioner and the claimant
with notice of the Director's intention to exercise such discretion.
(f) Upon
its authorizing or not authorizing the payment
of any amount under paragraph (a)
of this section, the PSOB Office
shall serve notice of the same upon the claimant and the petitioner. Such notice shall specify the amount, if any,
the petitioner is authorized to charge the claimant and the basis of the authorization.
(g) No
agreement for representative services in connection with a
claim shall be valid if the
agreement provides for any consideration other than under this
section. A person's receipt of
consideration for such services other than under this section may, among other
things, be the subject of referral by BJA to appropriate
professional, administrative, disciplinary, or other legal authorities.
§ 32.8 Exhaustion
of administrative remedies.
No determination or negative disability
finding that, at the time made, may be subject to a request
for a Hearing Officer determination, a motion
for reconsideration, or a Director appeal,
shall be considered a final agency determination for purposes of judicial review, unless all administrative remedies have
been exhausted.
Subpart B ‑ Death Benefit Claims
32.14 PSOB Office determination.
32.15 Prerequisite certification.
32.17 Request for Hearing Officer determination.
Consistent
with § 32.1, this
subpart contains provisions applicable to claims
made under the Act—
(a) At
42 U.S.C. 3796(a); or
(b) At
42 U.S.C. 3796c‑1 or Public Law 107‑37, with respect to a public safety officer's death.
§ 32.12 Time
for filing claim.
(a) Unless,
for good cause shown, the Director extends the time for
filing, no claim shall be
considered if it is filed with the PSOB Office after
the later of—
(1) Three years after the public safety officer's death; or
(2) One year after—
(i) A final determination of
entitlement to receive, or of denial of, the benefits,
if any, described in § 32.15(a)(1)(i); or
(ii) The receipt of the certification described in § 32.15(a)(1)(ii)).
(b) A
claimant may file with his claim
such supporting documentary, electronic, video, or other nonphysical evidence and legal arguments as he may wish to provide.
Adoptive parent of a public safety officer means any
individual who (not being a step‑parent),
as of the injury date, was the legally-adoptive parent of the public safety
officer, or otherwise was in a child-parent relationship
with him.
Beneficiary of a life insurance policy of a public
safety officer — An individual (living or deceased on the date of death of the public safety officer) is designated
as beneficiary of a life insurance policy of such officer as of such date,
only if the designation is, as of
such date, legal and valid (as a designation of beneficiary of a life insurance
policy) and unrevoked (by such officer or by operation of law) or otherwise
unterminated, except that—
(1) Any designation of an individual (including any designation
of the biological or adoptive offspring of such
individual) made in contemplation of such individual's marriage (or purported
marriage) to such officer shall be
considered to be revoked by such
officer as of such date of death
if the marriage (or purported marriage) did not take place, unless preponderant
evidence demonstrates that—
(i) It did not take place
for reasons other than personal differences between the officer and the individual; or
(ii) No such revocation was intended by the officer; and
(2) Any designation of a spouse (or purported spouse)
made in contemplation of or during such spouse's (or purported spouse's) marriage (or purported marriage) to such officer (including any designation of
the biological or adoptive offspring of such spouse
(or purported spouse)) shall be considered to be revoked by such officer as of such date of death if the spouse
(or purported spouse) is divorced from such officer
after the date of designation and before such date of death, unless
preponderant evidence demonstrates that no such revocation
was intended by the officer.
Beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A) — An individual (living or deceased on the date of death of the public safety officer) is designated, by such
officer (and as of such date), as beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A),
only if the designation is,
as of such date, legal and valid and unrevoked (by such officer or by operation
of law) or otherwise unterminated, except that—
(1) Any designation of an individual (including any designation
of the biological or adoptive offspring of such
individual) made in contemplation of such individual's marriage (or purported
marriage) to such officer shall be
considered to be revoked by such officer as
of such date of death if the
marriage (or purported marriage) did not take place, unless preponderant evidence demonstrates that—
(i) It did not take place
for reasons other than personal differences between the officer and the individual; or
(ii) No such revocation was intended by the officer; and
(2) Any designation of a spouse (or purported
spouse) made in contemplation of or during such spouse's (or purported spouse's)
marriage (or purported marriage) to such officer (including any designation of
the biological or adoptive offspring of such spouse
(or purported spouse)) shall be considered to be revoked
by such officer as of such date
of death if the spouse (or purported spouse) is divorced
from such officer subsequent to the date of designation and before such date of
death, unless preponderant evidence demonstrates that no such
revocation was intended by the officer.
Cardiovascular
disease includes heart attack and stroke.
Child-parent relationship means a
relationship between a public
safety officer and another individual, in which the individual (other than the
officer's biological or legally-adoptive parent) has
the role of parent, as shown by convincing evidence.
Competent medical evidence to the contrary — The presumption raised by the Act,
at 42 U.S.C. 3796(k), is overcome by competent medical evidence to the
contrary, when evidence indicates to a degree of medical probability that extrinsic circumstances, considered in
combination (as one circumstance) or alone, were a substantial
factor in bringing the heart attack
or stroke about.
Designation
on file — A designation of beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A),
is on file with a public safety agency, ‑organization, or ‑unit,
only if it is deposited with the same by the public
safety officer making the designation, for it to maintain with its
personnel or similar records pertaining to him.
Direct and proximate result of a heart attack or
stroke — A death results directly and proximately from
a heart attack or stroke if the heart attack or stroke
is a substantial factor in bringing it about.
Engagement in a situation involving law enforcement, fire suppression,
rescue, hazardous material response, emergency medical services, prison
security, disaster relief, or other emergency response activity —
A public safety officer is so engaged only when, within his line of duty—
(1) He is in the course of actually—
(i) Engaging in law enforcement;
(ii) Suppressing
fire;
(iii) Responding to
a hazardous-material emergency;
(iv) Performing rescue activity;
(v) Providing emergency medical services;
(vi) Performing disaster relief activity; or
(vii) Otherwise engaging in emergency response activity; and
(2) The public
agency he serves (or the relevant government) legally recognizes him to have
been in such course at the time of such engagement (or, at a minimum, does not
deny (or has not denied) him so to have been).
Event includes
occurrence, but does not include any engagement
or participation described in the Act, at 42 U.S.C. 3796(k)(1).
Excessive consumption of alcohol — An
individual is an excessive consumer of alcohol if he consumes alcohol in
amounts commonly accepted to be associated with
substantially-increased risk of cardiovascular
disease.
Execution of a designation of beneficiary under the Act, at 42 U.S.C. 3796(a)(4)(A)
means the legal and valid execution, by the public
safety officer, of a writing that, designating a beneficiary, expressly, specifically, or
unmistakably refers to—
(1) The Act
(or the program it creates); or
(2) All the death benefits with respect to
which such officer lawfully could designate a
beneficiary (if there be no writing that satisfies paragraph (1) of this definition).
Execution of a life insurance policy
means, with respect to a life insurance policy, the legal and valid execution,
by the individual whose life is insured thereunder, of—
(1) The approved application for coverage;
(2) A designation of beneficiary; or
(3) A designation of the mode of benefit.
Extrinsic circumstances means—
(1) An event or events; or
(2) An intentional risky
behavior or intentional risky behaviors.
Life
insurance policy on file — A life insurance policy is on file with a public safety agency, ‑organization,
or ‑unit, only if—
(1) It is issued through (or on behalf of) the same; or
(2) The original (or a copy) of one of the
following is deposited with the same by the public safety officer whose life is insured
under the policy, for it to maintain with its personnel or similar records
pertaining to him:
(i) The policy (itself);
(ii) The declarations page or ‑statement
from the policy's issuer;
(iii) A certificate of insurance (for group
policies);
(iv) Any instrument whose execution
constitutes the execution of a life insurance policy; or
(v) The substantial equivalent of any
of the foregoing.
Medical
probability — A fact is indicated to a degree of medical
probability, when, pursuant to a medical assessment, the fact is indicated by a
preponderance of such evidence as may be available.
Most recently executed designation of beneficiary
under the Act, at 42 U.S.C. 3796(a)(4)(A)
means the most recently executed such designation
that, as of the date of death of the public safety
officer, designates a beneficiary.
Most recently executed life insurance policy of a public
safety officer means the most recently executed policy insuring the
life of a public
safety officer that, being legal and
valid (as a life insurance policy) upon its execution,
as of the date of death of such officer—
(1) Designates a beneficiary; and
(2) Remains legally unrevoked (by such officer or by operation of law) or
otherwise unterminated.
Nonroutine strenuous physical activity means line of duty activity that—
(1) Is not excluded by the Act, at 42 U.S.C. 3796(l);
(2) Is not performed as
a matter of routine; and
(3) Entails an unusually-high level of
physical exertion.
Nonroutine
stressful or strenuous physical activity means nonroutine stressful physical activity
or nonroutine strenuous physical activity.
Nonroutine
stressful physical activity means line of duty
activity that—
(1) Is not excluded by the Act, at 42 U.S.C. 3796(l);
(2) Is not performed as
a matter of routine;
(3) Entails non-negligible physical
exertion; and
(4) Occurs—
(i) With respect to a situation in which a public safety officer is
engaged, under circumstances that objectively and reasonably—
(A) Pose (or appear to pose) significant
dangers, threats, or hazards (or reasonably-foreseeable risks thereof), not faced
by similarly-situated members of the public in the ordinary course; and
(B) Provoke, cause, or occasion an
unusually-high level of alarm, fear, or anxiety; or
(ii) With respect to a training exercise in which a public safety
officer participates, under circumstances that objectively and reasonably—
(A) Simulate in realistic fashion
situations that pose significant dangers, threats, or hazards; and
(B) Provoke, cause, or occasion an
unusually-high level of alarm, fear, or anxiety.
Parent of a
public safety officer means a public
safety officer's surviving—
(1) Biological or
adoptive parent whose
parental rights have not been terminated, as of the injury
date; or
(2) Step‑parent.
Participation
in a training exercise — A public safety
officer participates (as a trainer or
trainee) in a training exercise only when actually taking formal part in a structured
activity that itself is—
(1) Within an official training (or –fitness) program of
his public agency; and
(2) Mandatory, rated (i.e., officially tested, ‑graded, ‑judged, ‑timed,
etc.), or directly supervised, ‑proctored,
or ‑monitored.
Public safety
agency, ‑organization, or ‑unit
means a department or agency (or component
thereof)—
(1) In which a public safety officer serves in an official capacity, with or without compensation,
as such an officer (of any kind but disaster relief worker); or
(2) Of which a public safety officer is an employee, performing official duties
as described in the Act, at 42 U.S.C. 3796b(9)(B)
or (C), as a disaster relief worker.
Risky
behavior means—
(1) Failure (without reasonable
justification or excuse) to undertake treatment—
(i) Of any commonly-accepted cardiovascular-disease risk factor associated with
clinical values, where such risk factor is—
(A) Known (or should be known) to be
present; and
(B) Present to a degree that substantially
exceeds the minimum value commonly accepted as
indicating high risk;
(ii) Of any disease or condition commonly
accepted to be associated with
substantially-increased risk of cardiovascular
disease, where such associated disease or condition is known (or should be
known) to be present; or
(iii) Where a biological
parent, ‑sibling, or –first-generation offspring, is known to have (or
have a history of) cardiovascular disease;
(2) Smoking an average of more than
one-half of a pack of cigarettes (or its equivalent) per day;
(3) Excessive
consumption of alcohol;
(4) Consumption of controlled substances
included on Schedule I of the drug control and enforcement laws (see 21 U.S.C. 812(a)),
where such consumption is commonly accepted to
be associated with increased risk of cardiovascular
disease;
(5) Abuse of controlled substances included
on Schedule II, III, IV, or V of the drug control and enforcement
laws (see 21 U.S.C. 812(a)), where such abuse is commonly accepted to be associated with increased
risk of cardiovascular disease; or
(6) Any activity or action, specified in the Act, at 42 U.S.C. 3796a(1),
(2), or (3),
that is commonly accepted to be associated with
substantially-increased risk of cardiovascular
disease.
Routine —
Neither of the following shall be dispositive in determining whether an
activity or action shall be understood to have been performed as a matter of
routine:
(1) Being generally described by the public agency as routine or ordinary; or
(2) The frequency with which it may be
performed.
Step-parent of a public safety officer
means a current or former spouse of the legally-adoptive
or biological parent (living or deceased) of a public safety officer conceived (or legally adopted) by that parent
before the marriage of the spouse and the parent, which spouse
(not being a legally-adoptive parent of the officer), as of the injury date,
(1) Received over half of his support from the officer;
(2) Had as his principal place of abode the
home of the officer and was a member of the
officer's household; or
(3) Was in a child-parent
relationship with the officer.
Undertaking
of treatment — An individual undertakes treatment, when he
consults with a physician licensed to practice medicine in any jurisdiction
described in the Act, at 42 U.S.C. 3796b(8), and complies substantially
with his recommendations.
§ 32.14 PSOB
Office determination.
(a) Upon
its approving or denying a claim,
the PSOB Office shall serve
notice of the same upon the claimant (and upon any other claimant who may have filed a claim with respect to the same public safety officer). In the event of a denial, such notice shall—
(1) Specify the factual findings and legal
conclusions that support it; and
(2) Provide information as to requesting a Hearing Officer determination.
(b) Upon
a claimant's failure (without reasonable justification or excuse) to pursue in
timely fashion the determination, by the PSOB Office, of his filed claim, the Director may, at his discretion, deem the same to be
abandoned. Not less than thirty-three
days prior thereto, the PSOB Office shall serve the
claimant with notice of the Director's intention to exercise such discretion.
(c) In
connection with its determination
(pursuant to a filed claim) of the existence of competent medical evidence to the contrary, the PSOB
Office shall serve the claimant with notice (indicating that he may file such
supporting documentary, electronic, video, or other nonphysical evidence (such as medical-history records, as appropriate) and
legal arguments in support of his claim as he may wish to provide), where there
is evidence before it that affirmatively suggests that—
(1) The public
safety officer actually knew or should have known that he had cardio‑vascular disease risk factors
and appears to have worsened or aggravated the same through his own intentional and risky behavior (as opposed to where the evidence
affirmatively suggests merely that cardio‑vascular disease risk factors
were present); or
(2) It is more likely than not that a public safety officer's heart attack or stroke was
imminent.
§ 32.15 Prerequisite
certification.
(a) Except
as provided in the Act, at 42 U.S.C. 3796c‑1 or Public
Law 107‑37, and unless, for good cause shown, the Director grants a waiver, no claim
shall be approved unless the following
(which shall be necessary, but not sufficient, for such approval) are filed with the PSOB Office:
(1) Subject to paragraphs (b) and (d) of this section,
a certification from the public agency in which the public safety officer
served (as of the injury date) that he died as a direct
and proximate result of a line of duty injury,
and either—
(i) That his survivors
(listed by name, address, relationship to him, and amount received) have
received (or legally are entitled to receive) the maximum
death benefits legally payable by the agency
with respect to deaths of public safety officers
of his kind, rank, and tenure; or
(ii) Subject to paragraph (c) of this section, that the
agency is not legally authorized to pay—
(A) Any benefits
described in paragraph (a)(1)(i)
of this section, to any person; or
(B) Any benefits
described in paragraph (a)(1)(i)
of this section, to public safety officers of the kind, rank, and tenure described in such paragraph;
(2) A copy of any findings or rulings made
by any public agency that relate to the officer's death; and
(3) A certification
from the claimant listing every individual known to him who is or might be the officer's child, spouse, or parent.
(b) The
provisions of paragraphs (a)(1)
and (d) of this section shall also apply with respect to
every public agency that legally is authorized
to pay death benefits with respect to the agency described in that paragraph.
(c) No
certification described in paragraph (a)(1)(ii) of this section shall be deemed complete for purposes
of this section unless it—
(1) Lists every public
agency (other than BJA) that legally is authorized to
pay death benefits with respect to the certifying
agency; or
(2) States that no public agency (other than BJA)
legally is authorized to pay death benefits with respect to the certifying agency.
(d) Subject
to paragraphs (b) and (c) of this
section, if the Director finds that the conditions
specified in the Act, at 42 U.S.C. 3796(k),
are satisfied with respect to a particular public
safety officer's death, and that no circumstance specified in the Act, at 42 U.S.C. 3796a(1), (2), or (3),
applies with respect thereto—
(1) The certification
as to death, described in paragraph (a)(1)
of this section, shall not be
required; and
(2) The certification
as to benefits, described in paragraph (a)(1)(ii)
of this section, shall be deemed complete for
purposes of this section if it—
(i) Describes the public agency's understanding of the circumstances
(including such causes of which it may be aware) of the
officer's death; and
(ii) States that, in connection with
deaths occurring under the circumstances described in paragraph (d)(2)(i) of this section, the public
agency is not legally authorized to pay any benefits described in paragraph (a)(1)(i) of this
section.
(a) No
payment shall be made to (or on behalf of) more than one individual, on the
basis of being a public safety officer's
parent as his mother, or on that basis as his
father. If more than one parent
qualifies as the officer's mother, or as his father, payment shall be made to
the one with whom the officer considered himself, as of the injury
date, to have the closest relationship, except that any biological or legally-adoptive parent whose parental
rights have not been terminated as of the injury date shall be presumed
rebuttably to be such one.
(b) Any
amount payable with respect to a minor or incompetent shall be paid to his
legal guardian, to be expended solely for the benefit of such minor or
incompetent.
(c) If
more than one individual should qualify for payment—
(1) Under the Act,
at 42 U.S.C. 3796(a)(4)(i)
[sic], payment shall be made to each
of them in equal shares, except that, if the
designation itself should manifest a different distribution, payment shall
be made to each of them in shares in accordance with such distribution; or
(2) Under the Act,
at 42 U.S.C. 3796(a)(4)(ii)
[sic], payment shall be made to each
of them in equal shares.
§ 32.17 Request
for Hearing Officer determination.
In
order to exhaust his administrative remedies,
a claimant seeking relief from the denial of his claim shall request a Hearing Officer
determination under subpart E of this part.
Consistent with § 32.8, any denial
that is not the subject of such a request shall constitute the final agency determination.
Subpart C ‑ Disability Benefit
Claims
32.24 PSOB Office determination.
32.25 Prerequisite certification.
32.27 Motion for reconsideration of negative disability
finding.
32.28 Reconsideration of negative disability
finding.
32.29 Request for Hearing Officer determination.
Consistent
with § 32.1, this
subpart contains provisions applicable to claims
made under the Act—
(a) At
42 U.S.C. 3796(b); or
(b) At
42 U.S.C. 3796c‑1 or Public Law 107‑37, with respect to a public safety officer's disability.
§ 32.22 Time
for filing claim.
(a) Unless,
for good cause shown, the Director extends the time for
filing, no claim shall be
considered if it is filed with the PSOB Office after
the later of—
(1) Three years after the injury date; or
(2) One year after—
(i) A final determination of
entitlement to receive, or of denial of, the benefits,
if any, described in § 32.25(a)(1)(i); or
(ii) The receipt of the certification described in § 32.25(a)(1)(ii)).
(b) A
claimant may file with his claim
such supporting documentary, electronic, video, or other nonphysical evidence and legal arguments as he may wish to provide.
Direct result of an injury —
A disability results directly from an injury if the injury is a substantial
factor in bringing the disability about.
Gainful work means full‑ or
part-time activity that actually is compensated or commonly is
compensated.
Medical certainty —
A fact exists to a degree of medical certainty, when, pursuant to a medical
assessment, the fact is demonstrated by convincing
evidence.
Permanently disabled — An
individual is permanently disabled only if there is
a degree of medical certainty (given the
current state of medicine in the
(1) Will progressively deteriorate or
remain constant, over his expected lifetime; or
(2) Otherwise has reached maximum medical
improvement.
Product of an
injury — Permanent
and total disability is produced by a catastrophic
injury suffered as a direct and proximate
result of a personal injury if the disability is a direct result of the personal injury.
Residual functional capacity means that which an individual still is capable of doing, as shown by
medical (and, as appropriate, vocational) assessment, despite a disability.
Totally disabled — An individual is
totally disabled only if there is a degree of medical certainty (given the current state of
medicine in the
§ 32.24 PSOB
Office determination.
(a) Upon
its approving or denying a claim,
the PSOB Office shall serve
notice of the same upon the claimant. In
the event of a denial, such notice shall—
(1) Specify the factual findings and legal
conclusions that support it; and
(2) Provide information as to—
(i) Requesting a Hearing Officer determination; or
(ii) As applicable, moving to reconsider a negative disability finding.
(b) Upon
a claimant's failure (without reasonable justification or excuse) to pursue in
timely fashion the determination of his filed claim, the Director may, at his discretion,
deem the same to be abandoned. Not less
than thirty-three days prior thereto, the PSOB Office
shall serve the claimant with notice of the Director's
intention to exercise such discretion.
§ 32.25 Prerequisite
certification.
(a) Except
as provided in the Act, at 42 U.S.C. 3796c‑1 or Public
Law 107‑37, and unless, for good cause shown, the Director grants a waiver, no claim
shall be approved unless the
following (which shall be necessary, but not sufficient, for such approval) are
filed with the PSOB Office:
(1) Subject to paragraph (b) of this section, a certification
from the public agency in which the public safety officer served (as of the injury date) that he was permanently
and totally disabled as a direct result
of a line of duty injury, and either—
(i) That he has received (or
legally is entitled to receive) the maximum disability
benefits (including workers' compensation) legally payable by the agency with respect to disabled public safety officers of his kind, rank, and tenure; or
(ii) Subject to paragraph (c) of this section, that the agency is not legally authorized
to pay—
(A) Any benefits
described in paragraph (a)(1)(i)
of this section, to any person; or
(B) Any benefits
described in paragraph (a)(1)(i)
of this section, to public safety officers of the kind, rank, and tenure described in such paragraph; and
(2) A copy of—
(i) Each State, local,
and federal income tax return filed by or on behalf of the public safety officer from the year
before the injury date to the date of determination by the PSOB determining official; and
(ii) Any rulings made by any public agency that relate to the claimed disability.
(b) The
provisions of paragraph (a)(1)
of this section shall also apply with respect to
every public agency that legally is authorized
to pay disability benefits with respect to the agency described in that paragraph.
(c) No
certification described in paragraph (a)(1)(ii) of this section shall be deemed complete unless it—
(1) Lists every public
agency (other than BJA) that legally is authorized to
pay disability benefits with respect to the
certifying agency; or
(2) States that no public agency (other than BJA)
legally is authorized to pay disability benefits with respect to the certifying agency.
The
amount payable on a claim shall be the amount payable, as of the injury date, pursuant to the
Act, at 42 U.S.C. 3796(b).
§ 32.27 Motion
for reconsideration of negative disability finding.
A
claimant whose claim is denied
in whole or in part on the ground that he has not shown that his claimed disability is total
and permanent may move for reconsideration, under § 32.28, of the specific finding as to the total and permanent character of the claimed
disability (in lieu of his requesting a Hearing Officer
determination with respect to the same).
§ 32.28 Reconsideration of negative disability
finding.
(a) Unless,
for good cause shown, the Director extends the time for
filing, no negative disability
finding described in § 32.27 shall
be reconsidered if the motion under that section
is filed with the PSOB Office later than thirty-three
days after the service of notice of the denial.
(b) Notwithstanding
any other provision of this section,
no negative disability finding described in § 32.27 shall be reconsidered—
(1) If or after such reconsideration is
rendered moot (e.g., by the final denial of the claim on
other grounds, without possibility of further administrative or judicial
recourse); or
(2) If a request
for a Hearing Officer determination has been filed in
timely fashion with respect to such finding.
(c) Unless,
for good cause shown, the Director grants a waiver,
upon the making of a motion under § 32.27, reconsideration of the negative disability finding described in that section
shall be stayed for three years. Upon
the conclusion of the stay, the claimant shall have not more than six years to file evidence with the PSOB Office in support of his claimed
disability.
(d) Upon
a claimant's failure (without reasonable justification or excuse) to file in timely fashion evidence
pursuant to paragraph (c) of this section, the Director may, at his discretion,
deem the motion for reconsideration to be
abandoned, as though never filed. Not
less than thirty-three days prior thereto, the PSOB Office
shall serve the claimant with notice of the Director's
intention to exercise such discretion.
(e) No
negative disability finding described in § 32.27 shall be reversed unless a copy (which shall be necessary, but
not sufficient, for such reversal) of each federal, State, and local income tax
return filed by or on behalf of the claimant from the year before the date of
the motion for reconsideration under that section
to the date of reversal is filed with the PSOB Office.
(f) Upon
its affirming or reversing a negative disability finding described in § 32.27, the PSOB Office
shall serve notice of the same upon the claimant. In the event of an affirmance, such notice
shall—
(1) Specify the factual findings and legal
conclusions that support it; and
(2) Provide information as to requesting a Hearing Officer determination of the disability finding.
§ 32.29 Request
for Hearing Officer determination.
(a) In
order to exhaust his administrative remedies,
a claimant seeking relief from the denial of his claim shall request a Hearing
Officer determination under subpart E of this part—
(1) Of—
(i) His entire claim, if he has not moved
for reconsideration of a negative disability finding
under § 32.27; or
(ii) Consistent with § 32.42(c), the grounds (if any) of the denial that are not the subject of such motion, if he has moved for reconsideration of
a negative disability finding under § 32.27; and
(2) Of
a negative disability finding that is affirmed pursuant to his motion for reconsideration under § 32.27.
(b) Consistent
with § 32.8, the following shall
constitute the final agency determination:
(1) Any denial
not described in § 32.27 that is not
the subject of a request for a Hearing Officer determination
under paragraph (a)(1)(i) of this section;
(2) Any denial
described in § 32.27 that is not the
subject of a request for a Hearing Officer determination
under paragraph (a)(1)(ii) of this section, unless the negative
disability finding is the subject of a motion
for reconsideration; and
(3) Any affirmance
that is not the subject of a request for a Hearing
Officer determination under paragraph (a)(2)
of this section.
Subpart D ‑ Educational
Assistance Benefit Claims
32.34 PSOB Office determination.
32.37 Request
for Hearing Officer determination.
§ 32.31 Scope of subpart.
Consistent
with § 32.1, this subpart
contains provisions applicable to claims (i.e., threshold claims and financial
claims) made under the Act, at 42 U.S.C. 3796d‑1.
§ 32.32 Time
for filing claim.
(a) Subject
to the Act, at 42 U.S.C. 3796d‑1(c),
and to paragraph (b) of this section, a claim may be filed with the PSOB Office at
any time after the injury date.
(b) Unless, for good cause shown, the Director grants a waiver, no financial
claim may be filed with the PSOB
Office, with respect to a grading period that
commences more than six months after the date of filing.
(c) A
claimant may file with his claim
such supporting documentary, electronic, video, or other nonphysical evidence and legal arguments as he may wish to provide.
Application means claim (i.e., a threshold claim
or a financial claim).
Assistance means financial assistance.
Child of an eligible
public safety officer means
the child of a public safety officer, which officer is an eligible public safety officer.
Dependent — An individual is a dependent of an eligible public safety officer,
if—
(1) Being a child of
the officer, the
(i) Was claimed properly
as the officer's dependent (within the meaning of the
Internal Revenue Code, at 26 U.S.C. 152)
on the officer's federal income-tax return (or could have been claimed if such
a return had been required by law)—
(A) For the tax year of (or immediately
preceding) either the injury date or the date of the officer's death (with respect to a claim by virtue of such death); or
(B) For the relevant tax
year (with respect to a claim by virtue of the officer's disability); or
(ii) Is the
officer's posthumous child; or
(2) Being a spouse
of the officer at the time of the officer's death or on the date of the
officer's totally and permanently disabling injury, the
(i) As of either the injury date or the date of the officer's
death (with respect to a claim by virtue of such
death); or
(ii) In the relevant
tax year (with respect to a claim by virtue of the officer's disability).
Educational
assistance benefits means benefits specifically to assist in paying educational expenses.
Educational expenses
means such of the following as may be in furtherance of the educational,
professional, or vocational objective of the program
of education that forms the basis of a financial
claim:
(1) Tuition and fees, as described in 20 U.S.C. 1087ll(1) (higher education assistance);
(2) Reasonable expenses for—
(i) Room and board (if
incurred for attendance on at least a half-time basis);
(ii) Books;
(iii) Computer equipment;
(iv) Supplies; and
(v) Transportation; and
(3) For attendance on at least a
three-quarter-time basis, a standard allowance for miscellaneous personal
expenses that is the greater of—
(i) The allowance for
such expenses, as established by the eligible
educational institution for purposes of financial aid; or
(ii) $200.00 per month.
Eligible
dependent means an individual who—
(1) Is a dependent of
an eligible public safety officer;
(2) Attends a program
of education, as described in the Act, at 42 U.S.C. 3796d‑1(a)(1); and
(3) Is otherwise eligible to receive financial assistance pursuant to the Act or this subpart.
Eligible
educational expenses means a claimant's educational
expenses, reduced by the amount of educational
assistance benefits from non‑governmental organizations that the
claimant has received or will receive.
Eligible public
safety officer means a public
safety officer—
(1) With respect to whose death, benefits
under subpart B of this
part properly have been paid; or
(2) With respect to whose disability, benefits under subpart C
of this part properly—
(i) Have been paid; or
(ii) Would have been paid, but
for the operation of paragraph (b)(1) of § 32.6.
Financial
assistance means financial assistance, as described in the Act, at 42 U.S.C. 3796d‑1.
Financial
claim means a request for financial
assistance, with respect to attendance at a program
of education, for a particular grading period.
Financial need — An individual is
in financial need for a particular grading period
to the extent that the amount of his eligible
educational expenses for that period exceed the sum of—
(1) The amount of his educational assistance
benefits as described in the Act, at 42 U.S.C. 3796d‑1(a)(3)(A); and
(2) His expected family contribution
calculated pursuant to 20 U.S.C. 1087nn
(higher education assistance).
Funds means financial assistance.
Grading
period means the period of attendance (e.g., a semester, a
trimester, a quarter) in a program of education,
after (or with respect to) which period grades are assigned, units of credit
are awarded, or courses are considered completed, as determined by the eligible educational institution.
Prospective
financial claim means a financial claim
with respect to a grading period that ends after
the claim is filed.
Public safety agency means a public
agency—
(1) In which a public safety officer serves in an official capacity, with or without compensation,
as such an officer (of any kind but disaster relief worker); or
(2) Of which a public safety officer is an employee, performing official duties
as described in the Act, at 42 U.S.C. 3796b(9)(B)
or (C), as a disaster relief worker.
Retroactive
financial claim means a financial claim with respect to
a grading period that ends before the claim is filed.
Spouse of an
eligible public safety officer at the time of the officer's death or on the
date of a totally and permanently disabling injury
means the spouse of a public
safety officer (which officer is an eligible
public safety officer) as of—
(1) The date of the officer's death (with respect to a claim by virtue of such death); or
(2) The injury date
(with respect to a claim by virtue of the officer's disability).
Tax Year — With
respect to a claim by virtue of an eligible
public safety officer's disability, the relevant tax year is—
(1) The tax year of (or immediately
preceding) the injury date;
(2) Any tax year during which the program of education that forms the basis
of the claim is attended or is pursued;
(3) The tax year immediately preceding the
date on which the program of education
that forms the basis of the claim commenced (or is to
commence); or
(4) The tax year of (or immediately
preceding) the officer's death, where the program of education that forms the basis
of the claim commenced (or is to commence) after the
date of such death.
Threshold
claim means a request for determination
of general eligibility to receive financial assistance.
§ 32.34 PSOB
Office determination.
(a) In
the event of the PSOB Office's denying a claim, the notice it serves upon the
claimant shall—
(1) Specify the factual findings and legal
conclusions that support the denial; and
(2) Provide information as to requesting a Hearing Officer determination.
(b) No
financial claim shall be approved, unless the
claimant's threshold claim has been approved.
(c) Upon
a claimant's failure (without reasonable justification or excuse) to pursue in
timely fashion the determination of his filed claim, the Director may, at his discretion,
deem the same to be abandoned. Not less
than thirty-three days prior thereto, the PSOB Office
shall serve the claimant with notice of the Director's
intention to exercise such discretion.
No claim shall be approved if the claimant is—
(a) In
default on any student loan obtained under 20 U.S.C. 1091
(higher education assistance), unless, for good cause shown, the Director grants a waiver; or
(b) Subject
to a denial of federal benefits under 21 U.S.C. 862
(drug traffickers and possessors).
§ 32.36 Payment
and repayment.
(a) The
computation described in the Act, at 42 U.S.C. 3796d‑1(a)(2), shall be
based on a certification from the eligible educational
institution as to the claimant's
full‑, three-quarter‑, half‑, or less-than-half-time student
status, according to such institution's own academic standards and practices.
(b) No
payment shall be made with respect to any grading
period that ended before the injury date.
(c) With
respect to any financial claim, no amount shall
be payable that exceeds the amount of the eligible
educational expenses that form the basis of the claim.
(d) In the event that appropriations for
a fiscal year are insufficient for full payment of all approved
or anticipated financial claims, the following
payments shall be made—
(1) The
amounts payable on approved prospective financial claims from
claimants in financial need, to the extent of such
need (if sufficient funds be available therefor), in the order the claims are
approved;
(2) All other amounts payable on approved prospective
financial claims (in the order the claims are approved), if sufficient
funds be available therefor—
(i) After payment of all
amounts payable pursuant to paragraph (d)(1)
of this section; and
(ii) After making allowance for
anticipated amounts payable in the fiscal year pursuant to paragraph (d)(1) of this section; and
(3) The amounts payable on approved retroactive
financial claims (in the order the claims are approved), if sufficient
funds be available therefor—
(i) After payment of all
amounts payable pursuant to paragraphs (d)(1)
and (2) of this
section; and
(ii) After making allowance for
anticipated amounts payable in the fiscal year, pursuant to paragraphs (d)(1) and (2) of this section.
(e) In
the event that, at the conclusion of a fiscal year, any amounts remain payable
on an approved financial
claim, such amounts shall remain payable thereafter until paid (when
appropriations be sufficient therefor).
(f) In
the event that any amounts remain payable on an approved
prospective financial claim after the
end of the grading period that forms its basis,
such claim shall be deemed an approved retroactive financial claim for purposes
of paragraph (d) of this section.
(g) No
payment shall be made to (or on behalf of) any individual, on the basis of
being a particular living public
safety officer's spouse,
unless the individual is the officer's spouse on the date of payment.
(h) Unless,
for good cause shown, the Director grants a full or
partial waiver, a payee shall repay the amount paid to him (or on his behalf)
pursuant to a prospective financial claim
if, during the grading period that forms its basis—
(1) He fails to maintain satisfactory progress
under 20 U.S.C. 1091(c) (higher
education assistance);
(2) He fails to maintain the enrollment
status described in his claim; or
(3) By his acts or omissions, he is or becomes
ineligible for financial assistance.
§ 32.37 Request
for Hearing Officer determination.
In
order to exhaust his administrative remedies,
a claimant seeking relief from the denial of his claim shall request a Hearing
Officer determination under subpart E of this part.
Consistent with § 32.8, any denial
that is not the subject of such a request shall constitute the final agency determination.
Subpart E ‑ Hearing Officer
Determinations
32.42 Time for filing request for determination.
32.43 Appointment and assignment of Hearing
Officers.
32.44 Hearing Officer determination.
Consistent
with § 32.1, this
subpart contains provisions applicable to requests
for Hearing Officer determination of claims denied under subpart B,
C (including affirmances
of negative disability findings described in § 32.27), or D
of this part, and of claims remanded (or matters
referred) under § 32.54(c).
§ 32.42 Time
for filing request for determination.
(a) Subject
to paragraph (c) of this
section, and unless, for good cause shown, the Director
extends the time for filing, no claim
shall be determined if the request
therefor is filed with the PSOB Office later than
thirty-three days after the service of notice of—
(1) The denial
(under subpart B, C
(except as may be provided in paragraph (a)(2)
of this section), or D
of this part) of a claim; or
(2) The affirmance
(under subpart C of this
part) of a negative disability finding
described in § 32.27.
(b) A
claimant may file with his request
for a Hearing Officer determination such supporting documentary,
electronic, video, or other non‑physical evidence
and legal arguments as he may wish to provide.
(c) The
timely filing of a motion for reconsideration under § 32.28(a) shall be deemed to constitute a
timely filing, under paragraph (a) of this section, of a request for determination with
respect to any grounds described in § 32.29(a)(1)(ii)
that may be applicable.
§ 32.43 Appointment
and assignment of Hearing Officers.
(a) Pursuant
to 42 U.S.C. 3787 (employment and
authority of hearing officers), Hearing Officers may be appointed from time to
time by the Director, to remain on the roster of such Officers at his pleasure.
(b) Upon
the filing of a request for a
Hearing Officer determination (or upon remand or
referral), the PSOB
Office shall assign the claim to a Hearing Officer
on the roster; the PSOB Office may assign a particular claim
to a specific Hearing Officer if it judges, in its discretion, that his
experience or expertise suit him especially for it.
(c) Upon
its making the assignment described in paragraph (b)
of this section, the PSOB
Office shall serve notice of the same upon the claimant,
with an indication that any evidence or legal argument he
wishes to provide is to be filed simultaneously with
the PSOB Office and the Hearing Officer.
(d) With
respect to an assignment described in paragraph (b)
of this section, the Hearing
Officer's consideration shall be—
(1) De novo (unless the Director should expressly prescribe otherwise, with
respect to a particular remand or referral), rather
than in review of the findings, determinations,
affirmances, reversals, assignments, authorizations, decisions, judgments,
rulings, or other actions of the PSOB Office; and
(2) Consistent with subpart B,
C, or D of this part, as applicable.
(e) OJP's General Counsel shall provide advice to the Hearing Officer as to all questions of law relating to any
matter assigned pursuant to paragraph (b) of this section.
§ 32.44 Hearing
Officer determination.
(a) Upon
his determining a claim,
the Hearing Officer shall file
notice of the same simultaneously with the Director
(for his review under subpart F of this part (in the event of approval)),
the PSOB Office, and OJP's General
Counsel, which notice shall specify the factual findings and legal conclusions
that support it.
(b) Upon
a Hearing Officer's denying
a claim, the PSOB Office
shall serve notice of the same upon the claimant (and
upon any other claimant who may have filed a claim with
respect to the same public safety officer),
which notice shall—
(1) Specify the Hearing
Officer's factual findings and legal conclusions that support it; and
(2) Provide information as to Director appeals.
(c) Upon
a claimant's failure (without reasonable justification or excuse) to pursue in
timely fashion the determination of his claim pursuant to his filed
request therefor, the Director may, at his discretion, deem the request to be abandoned,
as though never filed. Not less than
thirty-three days prior thereto, the PSOB Office
shall serve the claimant with notice of the Director's
intention to exercise such discretion.
(a) Except
with respect to a remand or referral, at the
election of a claimant under subpart B or C of this part, the Hearing Officer
shall hold a hearing, at a location agreeable to the claimant and the Officer
(or, otherwise, at a location ruled by the Hearing Officer to be suitable), for
the sole purposes of obtaining, consistent with § 32.5(c),
(1) Evidence from the
claimant and his fact or expert witnesses; and
(2) Such other evidence
as the Hearing Officer, at his discretion, may rule to
be necessary or useful.
(b) Unless,
for good cause shown, the Director extends the time for
filing, no election
under paragraph (a) of this section shall be honored if it is filed with the
PSOB Office later than ninety days after service of the notice described in § 32.43(c).
(c) Not
less than seven days prior to any hearing, the claimant shall file simultaneously with the PSOB
Office and the Hearing Officer a list of all
expected fact‑ or expert witnesses and a brief summary of the evidence each witness is expected to provide.
(d) At
any hearing, the Hearing Officer—
(1) May exclude any evidence
whose probative value is substantially outweighed by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence; and
(2) Shall exclude witnesses (other than the
claimant, or any person whose presence is shown by the claimant to be essential
to the presentation of his claim), so that they cannot hear the testimony of
other witnesses.
(e) Each
hearing shall be recorded, and the original of the complete record or
transcript thereof shall be made a part of the claim
file.
(f) Unless,
for good cause shown, the Director grants a waiver, a
claimant's failure to appear at a hearing (in person or through a
representative) shall constitute a withdrawal of his election
under paragraph (a) of this section.
(g) Upon
a claimant's failure to pursue in timely fashion his filed
election under paragraph (a) of this section, the Director
may, at his discretion, deem the same to
be abandoned. Not less than thirty-three
days prior thereto, the PSOB Office shall serve the claimant with notice of the Director's
intention to exercise such discretion.
(a) In
order to exhaust his administrative remedies,
a claimant seeking relief from the denial of his claim shall appeal to the Director
under subpart F of this
part.
(b) Consistent
with § 32.8, any claim
denial that is not appealed to the Director under paragraph (a)
of this section shall constitute the final agency determination,
unless the denial is reviewed otherwise under subpart F of this part.
Subpart F ‑ Director Appeals
& Reviews
32.52 Time for filing Director appeal.
Consistent
with § 32.1, this
subpart contains provisions applicable to Director
appeals and reviews of claim approvals and denials made under subpart E of this part,
and reviews of claim approvals
under the Act, at 42 U.S.C. 3796c‑1
or Public
Law 107‑37.
§ 32.52 Time
for filing Director appeal.
(a) Unless,
for good cause shown, the Director extends the time for
filing, no Director appeal
shall be considered if it is filed with the PSOB Office
later than thirty-three days after the service of
notice of the denial (under subpart E
of this part) of a claim.
(b) A
claimant may file with his Director
appeal such supporting documentary, electronic, video, or other nonphysical
evidence and legal arguments as he may wish to provide.
(a) Upon
the filing of the approval
(under subpart E of this
part) of a claim, the Director shall review the
same.
(1) Any claim denial
made under subpart E of this
part; and
(2) Any claim approval
made under the Act, at 42 U.S.C. 3796c‑1 or Public
Law 107‑37.
(c) Unless
the Director judges that it would be unnecessary, the PSOB Office shall serve
notice upon the claimant (and upon any other claimant who may have filed a claim with respect to the same public safety officer) of the initiation of
a review under paragraph (a) or (b) of this section. Unless the Director judges that it would be
unnecessary, such notice shall—
(1) Indicate the principal factual findings
or legal conclusions at issue; and
(2) Offer a reasonable opportunity for filing of evidence or legal
arguments.
§ 32.54 Director
determination.
(a) Upon
the Director's approving or denying
a claim, the PSOB Office shall serve
notice of the same simultaneously upon the claimant (and upon any other
claimant who may have filed a claim with respect to the
same public safety officer), and upon
any Hearing Officer who made a determination
with respect to the claim. In the event
of a denial, such notice shall—
(1) Specify the factual findings and legal
conclusions that support it; and
(2) Provide information as to judicial appeals (for the claimant or claimants).
(b) Upon
a claimant's failure (without reasonable justification or excuse) to pursue in
timely fashion the determination of his claim
pursuant to his filed Director appeal,
the Director may, at his discretion, deem the same to be abandoned, as
though never filed. Not less than
thirty-three days prior thereto, the PSOB Office
shall serve the claimant with notice of the Director's
intention to exercise such discretion.
(c) With
respect to any claim before him, the Director, as appropriate, may—
(1) Remand the same to the PSOB Office, or to a Hearing
Officer;
(2) Vacate any related determination under this part; or
(3) Refer any related matters to a Hearing Officer (as a special master), to recommend
factual findings and dispositions in connection therewith.
(a) Consistent with § 32.8, any approval
or denial described in § 32.54(a) shall
constitute the final agency determination.
(b) A claimant seeking relief from the denial of his claim may
appeal judicially pursuant to the Act, at 42 U.S.C. 3796c‑2.
*************************************
REFERENCED IN OR HAVING
DIRECT APPLICATION TO
THE PUBLIC SAFETY OFFICERS'
BENEFITS ACT OF 1976
(GENERALLY CODIFIED AT
42 U.S.C. CHAPTER 46,
SUBCHAPTER XII)
OR
(updated as of Aug. 1, 2011)
1 U.S.C. § 1 Words denoting number, gender, and so forth
1 U.S.C. § 7 Definition of "marriage" and "spouse"
5 U.S.C. § 504 Costs and fees of parties
5 U.S.C. § 8191 Determination
of eligibility
18 U.S.C. § 287 False, fictitious
or fraudulent claims
18 U.S.C. § 1001 Statements or
entries generally
18 U.S.C. § 1621 Perjury generally
20 U.S.C. ch. 28,
subch. IV Student Assistance (range of sections)
20 U.S.C. § 1087ll Cost of attendance
20 U.S.C. § 1087nn Determination of
expected family contribution; data elements
20 U.S.C. § 1091 Student
eligibility
21 U.S.C. § 812 Schedule of
controlled substances
21 U.S.C. § 862 Denial of
Federal benefits to drug traffickers and possessors
26 U.S.C. § 152 Dependent defined
28 U.S.C. § 1746 Unsworn declarations under penalty of perjury
38 U.S.C. § 3532 Computation of
educational assistance allowance
42 U.S.C. § 423 Disability insurance benefit payments
42 U.S.C. § 3782 Rules, regulations, and procedures; consultations
and establishment
42 U.S.C. § 3787 Subpoena power; employment of hearing officers;
authority to hold hearings
42 U.S.C. § 3788 Personnel and administrative authority
42 U.S.C. § 3791 General
provisions
42 U.S.C. § 3793 Authorization
of appropriations
42 U.S.C. § 3795a Falsification or
concealment of facts
42 U.S.C. ch. 68 Disaster
Relief (range of sections)
Pub. L. 89‑329, § 481 Higher Education Act
of 1965 (as in effect Oct. 3, 1996)
Pub. L. 90‑351,
§ 1601 Omnibus
Crime Control and Safe Streets Act of 1968
Pub. L. 94‑430,
§§ 3 to 6 Public
Safety Officers' Benefits Act of 1976
Pub. L. 98‑473,
§ 609AA Justice Assistance
Act of 1984
Pub. L. 99‑500,
§ 101(b), tit. II Department
of Justice Appropriation Act, 1987 (reference)
Pub. L. 101‑647,
§ 1301 Crime
Control Act of 1990
Pub. L. 104‑238 Federal Law
Enforcement Dependents Assistance Act of 1996
Pub. L. 105‑390 Police, Fire,
and Emergency Officers Educational Assistance Act of 1996
Pub. L. 106‑276 Act of
October 2, 2000
Pub. L. 106‑390,
§ 305 Disaster
Mitigation Act of 2000
Pub. L. 107‑37 Act of September 18,
2001 (as amended by Pub. L. 107‑56)
Pub. L. 107‑56,
§§ 2, 612 USA PATRIOT
Act
Pub. L. 108‑182 Hometown
Heroes Survivors Benefits Act of 2003 (reference)
Pub. L. 109‑162,
§ 1164 Department
of Justice Appropriations Authorization Act, 2006
28 C.F.R. § 0.94‑1 Bureau of Justice
Assistance
Fed R. Evid. 301 Presumptions
in General in Civil Actions and Proceedings
Fed R. Evid. 401 Definition of "Relevant Evidence"
Fed R. Evid. 402 Relevant Evidence Generally Admissible;
Irrelevant Evidence Inadmissible
Fed R. Evid. 602 Lack of
Personal Knowledge
Fed R. Evid. 603 Oath or
Affirmation
Fed R. Evid. 701 Opinion
Testimony by Lay Witnesses
Fed R. Evid. 702 Testimony by
Experts
Fed R. Evid. 703 Bases of
Opinion Testimony by Experts
Fed R. Evid. 704 Opinion on
Ultimate Issue
Fed R. Evid. 901 Requirement of
Authentication or Identification
Fed R. Evid. 902 Self-authentication
Fed R. Evid. 903 Subscribing
Witness' Testimony Unnecessary
Fed R. Evid. 1002 Requirement of
Original
Fed R. Evid. 1003 Admissibility of
Duplicates
Fed R. Evid. 1004 Admissibility of
Other Evidence of Contents
Fed R. Evid. 1005 Public Records
Fed R. Evid. 1007 Testimony or
Written Admission of Party
D.C. Stat. § 5‑716 Survivor benefits and annuities
*************************************
1 U.S.C. § 1 Words
denoting number, gender, and so forth
[as in effect
on Aug. 1, 2011]
In determining the meaning of any Act of Congress,
unless the context indicates otherwise—
words importing the singular include
and apply to several persons, parties, or things;
words importing the plural include
the singular;
words importing the masculine gender
include the feminine as well;
. . . .
1 U.S.C. § 1 (as in effect on Aug. 1, 2011)
*************************************
1 U.S.C. § 7 Definition
of "marriage" and "spouse"
[as in effect
on Aug. 1, 2011]
In determining the meaning of any Act of Congress, or
of any ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word "marriage" means
only a legal union between one man and one woman as husband and wife, and the
word "spouse" refers only to a person of the opposite sex who is a
husband or a wife.
1 U.S.C. § 7 (as in effect on Aug. 1, 2011)
*************************************
5 U.S.C. § 504 Costs
and fees of parties
[as in effect
on Aug. 1, 2011]
. . . .
(b)(1) For
the purposes of this section—
(A) . . . (ii) attorney
or agent fees shall not be awarded in excess of $125 per hour unless the agency
determines by regulation that an increase in the cost of living or a special
factor, such as the limited availability of qualified attorneys or agents for
the proceedings involved, justifies a higher fee.);
. . . .
5 U.S.C. § 504 (as in effect on Aug. 1, 2011)
*************************************
5 U.S.C. § 8101 Definitions
[as in effect
on Aug. 1, 2011]
For the purpose of this subchapter—
. . . .
(17) "student" means an individual under
23 years of age who has not completed 4 years of education beyond the
high school level and who is regularly pursuing a full-time course of study or
training at an institution which is—
(A) a school or college or university operated or
directly supported by the
(B) a school or college or university which has been
accredited by a State or by a State-recognized or nationally recognized
accrediting agency or body;
(C) a school or college or university not so
accredited but whose credits are accepted, on transfer, by at least three
institutions which are so accredited, for credit on the same basis as if
transferred from an institution so accredited; or
(D) an additional type of educational or training
institution as defined by the Secretary of Labor.
Such an individual is deemed not to
have ceased to be a student during an interim between school years if the
interim is not more than 4 months and if he shows to the satisfaction of
the Secretary that he has a bona fide intention of continuing to pursue a
full-time course of study or training during the semester or other enrollment
period immediately after the interim or during periods of reasonable duration during
which, in the judgment of the Secretary, he is prevented by factors beyond his
control from pursuing his education. A
student whose 23rd birthday occurs during a semester or other enrollment period
is deemed a student until the end of the semester or other enrollment period;
. . . .
5 U.S.C. § 8101 (as in effect on Aug. 1, 2011)
*************************************
5 U.S.C. § 8191 Determination
of eligibility
[as in effect
on Aug. 1, 2011]
The benefits of this subchapter are available as
provided in this subchapter to eligible law enforcement officers (referred to
in this subchapter as "eligible officers") and their survivors. For the purposes of this subchapter, an
eligible officer is any person who is determined by the Secretary of Labor in
his discretion to have been on any given occasion—
(1) a law enforcement officer and to have been
engaged on that occasion in the apprehension or attempted apprehension of any
person—
(A) for the commission of a crime against the
(B) who at that time was sought by a law enforcement
authority of the
(C) who at that time was sought as a material
witness in a criminal proceeding instituted by the
(2) a law enforcement officer and to have been
engaged on that occasion in protecting or guarding a person held for the
commission of a crime against the United States or as a material witness in
connection with such a crime; or
(3) a law enforcement officer and to have been
engaged on that occasion in the lawful prevention of, or lawful attempt to
prevent, the commission of a crime against the
and
to have been on that occasion not an employee as defined in
section 8101(1), and to have sustained on that occasion a personal injury
for which the
5 U.S.C. § 8191 (as in effect on Aug. 1, 2011)
*************************************
18 U.S.C. § 287 False,
fictitious or fraudulent claims
[as in effect
on Aug. 1, 2011]
Whoever
makes or presents to any person or officer in the civil, military, or naval
service of the
18 U.S.C. § 287 (as in effect on Aug. 1, 2011)
*************************************
18 U.S.C. § 1001 Statements
or entries generally
[as in effect
on Aug. 1, 2011]
(a) Except as otherwise provided in this section, whoever, in any matter within the
jurisdiction of the executive, legislative, or judicial branch of the
Government of the
(1) falsifies,
conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes
any materially false, fictitious, or fraudulent statement or
representation; or
(3) makes
or uses any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title,
imprisoned not more than 5 years or, if the offense involves international
or domestic terrorism (as defined in section 2331),
imprisoned not more than 8 years, or both. If the matter relates to an offense under
chapter 109A, 109B, 110, or 117, or section 1591, then the term
of imprisonment imposed under this section shall
be not more than 8 years.
. . . .
18 U.S.C. § 1001 (as in effect on Aug. 1, 2011)
*************************************
18 U.S.C. § 1621 Perjury
generally
[as in effect
on Aug. 1, 2011]
Whoever—
(1) having
taken an oath before a competent tribunal, officer, or person, in any case in
which a law of the United States authorizes an oath to be administered, that he
will testify, declare, depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed, is true, willfully
and contrary to such oath states or subscribes any material matter which he
does not believe to be true; or
(2) in
any declaration, certificate, verification, or statement under penalty of
perjury as permitted under section 1746 of
title 28, United States Code, willfully subscribes as true any
material matter which he does not believe to be true;
is
guilty of perjury and shall, except as otherwise expressly provided by law, be
fined under this title or imprisoned not more than five years, or both. This section is applicable whether the
statement or subscription is made within or without the
18 U.S.C. § 1621 (as in effect on Aug. 1, 2011)
*************************************
18 U.S.C. § 2331 Definitions
[as in effect
on Aug. 1, 2011]
As used in this chapter—
(1) the term "international
terrorism" means activities that—
(A) involve violent
acts or acts dangerous to human life that are a violation of the criminal laws
of the
(B) appear to be
intended—
(i) to
intimidate or coerce a civilian population;
(ii) to
influence the policy of a government by intimidation or coercion; or
(iii) to
affect the conduct of a government by mass destruction, assassination, or
kidnapping; and
(C) occur primarily
outside the territorial jurisdiction of the
. . . .
(5) the term "domestic terrorism"
means activities that—
(A) involve acts
dangerous to human life that are a violation of the criminal laws of the
(B) appear to be
intended—
(i) to
intimidate or coerce a civilian population;
(ii) to
influence the policy of a government by intimidation or coercion; or
(iii) to
affect the conduct of a government by mass destruction, assassination, or
kidnapping; and
(C) occur primarily
within the territorial jurisdiction of the
18 U.S.C. § 2331 (as in effect on Aug. 1, 2011)
*************************************
20 U.S.C. Education
Chapter 28 Higher
Education Resources and Student Assistance
Subchapter IV Student Assistance
[as in effect
on Aug. 1, 2011]
Sec. 1070. Statement
of purpose; program authorization
through
Sec. 1099c-2. Review
of regulations
*************************************
20 U.S.C. § 1087ll Cost of attendance
[as in effect
on Aug. 1, 2011]
For the purpose of this subchapter and part C of
subchapter I of chapter 34 of title 42, the term "cost of
attendance" means—
(1) tuition
and fees normally assessed a student carrying the same academic workload as
determined by the institution, and including costs for rental or purchase of
any equipment, materials, or supplies required of all students in the same
course of study;
. . . .
20 U.S.C. § 1087ll (as in effect on Aug. 1, 2011)
*************************************
20 U.S.C. § 1087nn Determination
of expected family contribution; data elements
[as in effect
on Aug. 1, 2011]
(a) General rule for determination
of expected family contribution. The expected family contribution—
(1) for a dependent student shall be determined in
accordance with section 1087oo of this title;
(2) for a single independent student or a married
independent student without dependents (other than a spouse) shall be
determined in accordance with section 1087pp of this title; and
(3) for an independent student with dependents other
than a spouse shall be determined in accordance with section 1087qq of
this title.
(b) Data elements. The
following data elements are considered in determining the expected family
contribution:
(1) the available income of (A) the student and
the student's spouse, or (B) the student and the student's parents,
in the case of a dependent student;
(2) the number of dependents in the family of the
student;
(3) the number of dependents in the family of the
student, excluding the student's parents, who are enrolled or accepted for
enrollment, on at least a half-time basis, in a degree, certificate, or other
program leading to a recognized educational credential at an institution of
higher education that is an eligible institution in accordance with the
provisions of section 1094 of this title and for whom the family may reasonably
be expected to contribute to their postsecondary education;
(4) the net assets of (A) the student and the
student's spouse, and (B) the student and the student's parents, in
the case of a dependent student;
(5) the marital status of the student;
(6) the age of the older parent, in the case of a
dependent student, and the student; and
(7) the additional expenses incurred (A) in the
case of a dependent student, when both parents of the student are employed or
when the family is headed by a single parent who is employed, or (B)
in the case of an independent student, when the student is married and the
student's spouse is employed, or when the employed student qualifies as a
surviving spouse or as a head of a household under section 2 of
title 26.
20 U.S.C. § 1087nn (as in effect on Aug. 1, 2011)
*************************************
20 U.S.C. § 1091 Student eligibility
[as in effect
on Aug. 1, 2011]
(a) In general. In order to receive any grant,
loan, or work assistance under this subchapter and part C of
subchapter I of chapter 34 of title 42, a student must—
(1) be enrolled or accepted for enrollment in a degree,
certificate, or other program (including a program of study abroad approved for
credit by the eligible institution at which such student is enrolled) leading
to a recognized educational credential at an institution of higher education
that is an eligible institution in accordance with the provisions of
section 1094 of this title, except as provided in subsections (b)(3) and (b)(4) of this
section, and not be enrolled in an elementary or secondary school;
(2) if the student is presently enrolled at an institution,
be maintaining satisfactory progress in the course of study the student is
pursuing in accordance with the provisions of subsection (c)
of this section;
(3) not owe a refund on grants previously received at any
institution under this subchapter and part C of subchapter I of
chapter 34 of title 42, or be in default on any loan from a student
loan fund at any institution provided for in part D of this subchapter, or
a loan made, insured, or guaranteed by the Secretary under this subchapter and
part C of subchapter I of chapter 34 of title 42 for
attendance at any institution;
(4) file with the Secretary, as part of the original
financial aid application process, a certification, which need not be notarized,
but which shall include—
(A) a statement of educational purpose
stating that the money attributable to such grant, loan, or loan guarantee will
be used solely for expenses related to attendance or continued attendance at
such institution; and
(B) such student's social security number;
(5) be a citizen or national of the United States, a
permanent resident of the United States, or able to provide evidence from the
Immigration and Naturalization Service that he or she is in the United States
for other than a temporary purpose with the intention of becoming a citizen or
permanent resident; and
(6) if the student has been
convicted of, or has pled [sic] nolo
contendere or guilty to, a crime involving fraud in obtaining funds under this subchapter and part C of subchapter I of
chapter 34 of title 42, have completed the repayment of such funds to the Secretary, or to the
holder in the case of a loan under this subchapter
and part C of subchapter I of chapter 34 of title 42 obtained by fraud.
(b) Eligibility for student loans.
(1) In
order to be eligible to receive any loan under this subchapter and part C
of subchapter I of chapter 34 of title 42 (other than a loan
under section 1078‑2 or 1078‑3 of this title, or under
section 1078‑8 of this title pursuant to an exercise of discretion
under section 1087tt of this title) for any period of enrollment, a
student who is not a graduate or professional student (as defined in
regulations of the Secretary), and who is enrolled in a program at an
institution which has a participation agreement with the Secretary to make
awards under subpart 1 of part A of this subchapter, shall—
(A)(i) have received a determination of
eligibility or ineligibility for a Pell Grant under such subpart 1 for
such period of enrollment; and
(ii) if
determined to be eligible, have filed an application for a Pell Grant for such
enrollment period; or
(B) have—
(i)
filed an application with the Pell Grant processor for such institution for
such enrollment period, and
(ii) received
from the financial aid administrator of the institution a preliminary
determination of the student's eligibility or ineligibility for a grant under
such subpart 1.
(2) In
order to be eligible to receive any loan under section 1078‑1 of
this title for any period of enrollment, a student shall—
(A) have received a determination of need for a loan
under section 1078(a)(2)(B) of this title;
(B) if determined to have need for a loan under
section 1078 of this title, have applied for such a loan; and
(C) has applied for a loan under section 1078‑8
of this title, if such student is eligible to apply for such a loan.
(3) A
student who—
(A) is carrying at least one-half the normal
full-time work load for the course of study that the student is pursuing, as
determined by an eligible institution, and
(B) is enrolled in a course of study necessary for
enrollment in a program leading to a degree or certificate,
shall
be, notwithstanding paragraph (1) of subsection (a) of this section, eligible to apply for
loans under part B or C of this subchapter. The eligibility described in this paragraph shall be restricted to one 12‑month
period.
(4) A
student who—
(A) is carrying at least one-half the normal
full-time work load for the course of study the student is pursuing, as
determined by the institution, and
(B) is enrolled or accepted for enrollment in a
program at an eligible institution necessary for a professional credential or
certification from a State that is required for employment as a teacher in an
elementary or secondary school in that State,
shall
be, notwithstanding paragraph (1) of subsection (a) of this section, eligible to apply for
loans under part B, C, or D of this subchapter or work-study
assistance under part C of subchapter I of chapter 34 of title 42.
(5) Notwithstanding
any other provision of this subsection, no
incarcerated student is eligible to receive a loan under this subchapter and
part C of subchapter I of chapter 34 of title 42.
(c) Satisfactory progress.
(1) For
the purpose of subsection (a)(2) of this section, a
student is maintaining satisfactory progress if—
(A) the institution at which the student
is in attendance, reviews the progress of the student at the end of each
academic year, or its equivalent, as determined by the institution, and
(B) the student has a cumulative C average, or
its equivalent or academic standing consistent with the requirements for
graduation, as determined by the institution, at the end of the second such
academic year.
(2) Whenever
a student fails to meet the eligibility requirements of subsection (a)(2) of this section as a
result of the application of this subsection and
subsequent to that failure the student has academic standing consistent with
the requirements for graduation, as determined by the institution, for any
grading period, the student may, subject to this subsection, again be eligible
under subsection (a)(2) of this section for a grant, loan, or work
assistance under this subchapter and part C of subchapter I of
chapter 34 of title 42.
(3) Any
institution of higher education at which the student is in attendance may waive
the provisions of paragraph (1) or paragraph (2) of this
subsection for undue hardship based on—
(A) the death of a relative of the
student,
(B) the personal injury or illness of the
student, or
(C) special circumstances as determined by the
institution.
(d) Students who are not high school graduates. In order for a
student who does not have a certificate of graduation from a school providing
secondary education, or the recognized equivalent of such certificate, to be
eligible for any assistance under subparts 1, 3, and 4 of part A
and parts B, C, and D of this subchapter and part C of
subchapter I of chapter 34 of title 42, the student shall meet
one of the following standards:
(1) The student shall take an
independently administered examination and shall achieve a score, specified by
the Secretary, demonstrating that such student can benefit from the education
or training being offered. Such
examination shall be approved by the Secretary on the basis of compliance with
such standards for development, administration, and scoring as the Secretary
may prescribe in regulations.
(2) The student shall be determined as having the
ability to benefit from the education or training in accordance with such
process as the State shall prescribe. Any such process described or approved by
a State for the purposes of this section shall be effective 6 months after
the date of submission to the Secretary unless the Secretary disapproves such
process. In determining whether to
approve or disapprove such process, the Secretary shall take into account the
effectiveness of such process in enabling students without high school diplomas
or the equivalent thereof to benefit from the instruction offered by
institutions utilizing such process, and shall also take into account the
cultural diversity, economic circumstances, and educational preparation of the
populations served by the institutions.
(3) The student has completed a secondary school
education in a home school setting that is treated as a home school or private
school under State law.
(4) The student
shall be determined by the institution of higher education as having the
ability to benefit from the education or training offered by the institution of
higher education upon satisfactory completion of six credit hours or the
equivalent coursework that are applicable toward a degree or certificate
offered by the institution of higher education.
(e) Certification
for GSL eligibility. Each eligible institution may certify student
eligibility for a loan by an eligible lender under part B of this
subchapter prior to completing the review for accuracy of the information submitted
by the applicant required by regulations issued under this subchapter and
part C of subchapter I of chapter 34 of Title 42, if—
(1) checks for the loans are mailed to
the eligible institution prior to disbursements;
(2) the disbursement is not made until the review is
complete; and
(3) the eligible institution has no evidence or
documentation on which the institution may base a determination that the
information submitted by the applicant is incorrect.
(f) Loss
of eligibility for violation of loan limits.
(1) No
student shall be eligible to receive any grant, loan, or work assistance under
this subchapter and part C of subchapter I of chapter 34 of title 42
if the eligible institution determines that the student fraudulently borrowed
in violation of the annual loan limits under part B, part C, or
part D of this subchapter in the same academic year, or if the student
fraudulently borrowed in excess of the aggregate maximum loan limits under such
part B, part C, or part D.
(2) If
the institution determines that the student inadvertently borrowed amounts in
excess of such annual or aggregate maximum loan limits, such institution shall
allow the student to repay any amount borrowed in excess of such limits prior
to certifying the student's eligibility for further assistance under this
subchapter and part C of subchapter I of chapter 34 of title 42.
(g) Verification
of immigration status.
(1) In general. The Secretary shall implement a
system under which the statements and supporting documentation, if required, of
an individual declaring that such individual is in compliance with the
requirements of subsection (a)(5) of this section shall be verified prior to the
individual's receipt of a grant, loan, or work assistance under this subchapter
and part C of subchapter I of chapter 34 of title 42.
(2) Special rule. The documents collected and
maintained by an eligible institution in the admission of a student to the
institution may be used by the student in lieu of the documents used to
establish both employment authorization and identity under
section 1324a(b)(1)(B) of title 8 to verify eligibility to
participate in work-study programs under part C of subchapter I of
chapter 34 of title 42.
(3) Verification mechanisms. The Secretary is
authorized to verify such statements and supporting documentation through a
data match, using an automated or other system, with other Federal agencies
that may be in possession of information relevant to such statements and
supporting documentation.
(4) Review. In the case of such an
individual who is not a citizen or national of the United States, if the
statement described in paragraph (1) is
submitted but the documentation required under paragraph (2)
is not presented or if the documentation required under paragraph (2)(A)
is presented but such documentation is not verified under paragraph (3)—
(A) the institution—
(i) shall provide a reasonable
opportunity to submit to the institution evidence indicating a satisfactory
immigration status, and
(ii) may not delay, deny, reduce, or
terminate the individual's eligibility for the grant, loan, or work assistance
on the basis of the individual's immigration status until such a reasonable
opportunity has been provided; and
(B) if there are submitted documents which the
institution determines constitute reasonable evidence indicating such status—
(i) the institution shall transmit to the
Immigration and Naturalization Service either photostatic or other similar
copies of such documents, or information from such documents, as specified by
the Immigration and Naturalization Service, for official verification,
(ii) pending such
verification, the institution may not delay, deny, reduce, or terminate the
individual's eligibility for the grant, loan, or work assistance on the basis
of the individual's immigration status, and
(iii) the institution shall not be
liable for the consequences of any action, delay, or failure of the Service to
conduct such verification.
(h) Limitations of enforcement actions against
institutions. The Secretary shall not take any compliance,
disallowance, penalty, or other regulatory action against an institution of
higher education with respect to any error in the institution's determination
to make a student eligible for a grant, loan, or work assistance based on
citizenship or immigration status—
(1) if the institution has provided such
eligibility based on a verification of satisfactory immigration status by the
Immigration and Naturalization Service,
(2) because the institution, under subsection (g)(4)(A)(i) of this section, was required to provide a reasonable
opportunity to submit documentation, or
(3) because the institution, under subsection (g)(4)(B)(i) of this section, was required to wait for the response
of the Immigration and Naturalization Service to the institution's request for
official verification of the immigration status of the student.
(i) Validity
of loan guarantees for loan payments made before immigration status
verification completed. Notwithstanding subsection (h)
of this section,
if—
(1) a guaranty is made under this
subchapter and part C of subchapter I of chapter 34 of title 42
for a loan made with respect to an individual,
(2) at the time the guaranty is entered into, the
provisions of subsection (h)
of this section
had been complied with,
(3) amounts are paid under the loan subject to such
guaranty, and
(4) there is a subsequent determination that,
because of an unsatisfactory immigration status, the individual is not eligible
for the loan,
the official of the institution making the
determination shall notify and instruct the entity making the loan to cease
further payments under the loan, but such guaranty shall not be voided or
otherwise nullified with respect to such payments made before the date the
entity receives the notice.
(j) [repealed]
(k) Special
rule for correspondence courses. A student shall not be eligible to receive
grant, loan, or work assistance under this subchapter and part C of
subchapter I of chapter 34 of title 42 for a correspondence
course unless such course is part of a program leading to an associate,
bachelor or graduate degree.
(l) Courses
offered through distance education.
(1) Relation to
correspondence courses.
(A) In general. A student enrolled in a course
of instruction at an institution of higher education that is offered principally
through distance education and leads to a recognized certificate, or recognized
associate, recognized baccalaureate, or recognized graduate degree, conferred
by such institution, shall not be considered to be enrolled in correspondence
courses.
(B) Exception. An institution of higher
education referred to in subparagraph (A)
shall not include an institution or school described in section 2302(3)(C)
of this title.
(2) Reductions of financial aid. A student's
eligibility to receive grants, loans, or work assistance under this subchapter
and part C of subchapter I of chapter 34 of title 42 shall
be reduced if a financial aid officer determines under the discretionary
authority provided in section 1087tt of this title that distance education
results in a substantially reduced cost of attendance to such student.
(3) Special rule. For award years prior
to July 1, 2008, the Secretary shall not take any compliance,
disallowance, penalty, or other action based on a violation of this subsection against a student or an eligible
institution when such action arises out of such institution's prior award of
student assistance under this subchapter and part C of subchapter I
of chapter 34 of title 42 if the institution demonstrates to the
satisfaction of the Secretary that its course of instruction would have been in
conformance with the requirements of this subsection.
(m) Students
with a first baccalaureate or professional degree. A student
shall not be ineligible for assistance under parts B, C, and D of
this subchapter and part C of subchapter I of chapter 34 of title 42
because such student has previously received a baccalaureate or professional
degree.
(n) Data
base matching. To enforce the Selective Service registration
provisions of section 12(f) of the Military Selective Service Act
(50 U.S.C. App. 462(f)), the Secretary shall conduct data base
matches with the Selective Service, using common demographic data elements. Appropriate confirmation, through an
application output document or through other means, of any person's
registration shall fulfill the requirement to file a separate statement of
compliance. In the absence of a
confirmation from such data matches, an institution may also use data or
documents that support either the student's registration, or the absence of a
registration requirement for the student, to fulfill the requirement to file a
separate statement of compliance. The
mechanism for reporting the resolution of nonconfirmed matches shall be
prescribed by the Secretary in regulations.
(o) Study
abroad. Nothing in this chapter shall be construed to
limit or otherwise prohibit access to study abroad programs approved by the
home institution at which a student is enrolled. An otherwise eligible student who is engaged
in a program of study abroad approved for academic credit by the home
institution at which the student is enrolled shall be eligible to receive
grant, loan, or work assistance under this subchapter and part C of
subchapter I of chapter 34 of title 42, without regard to
whether such study abroad program is required as part of the student's degree
program.
(p) Verification of social security number. The Secretary
of Education, in cooperation with the Commissioner of the Social Security
Administration, shall verify any social security number provided by a student
to an eligible institution under subsection (a)(4)
of this section and
shall enforce the following conditions:
(1) Except as provided in paragraphs (2) and (3), an institution shall not deny, reduce,
delay, or terminate a student's eligibility for assistance under this part
because social security number verification is pending.
(2) If there is a determination by the
Secretary that the social security number provided to an eligible institution
by a student is incorrect, the institution shall deny or terminate the student's
eligibility for any grant, loan, or work assistance under this subchapter and
part C of subchapter I of chapter 34 of title 42 until such
time as the student provides documented evidence of a social security number
that is determined by the institution to be correct.
(3) If there is a determination by the
Secretary that the social security number provided to an eligible institution
by a student is incorrect, and a correct social security number cannot be provided
by such student, and a loan has been guaranteed for such student under
part B of this subchapter, the institution shall notify and instruct the
lender and guaranty agency making and guaranteeing the loan, respectively, to
cease further disbursements of the loan, but such guaranty shall not be voided
or otherwise nullified with respect to such disbursements made before the date
that the lender and the guaranty agency receives such notice.
(4) Nothing in this
subsection shall permit the Secretary to take any compliance, disallowance,
penalty, or other regulatory action against—
(A) any institution of higher education
with respect to any error in a social security number, unless such error was a
result of fraud on the part of the institution; or
(B) any student with respect to any error in a
social security number, unless such error was a result of fraud on the part of
the student.
(q) Use
of income data.
(1) Matching with IRS. The Secretary, in
cooperation with the Secretary of the Treasury, is authorized to obtain from
the Internal Revenue Service such information reported on Federal income tax
returns by applicants, or by any other person whose financial information is
required to be provided on the Federal student financial aid application, as
the Secretary determines is necessary for the purpose of—
(A) prepopulating
the Federal student financial aid application described in section 1090 of
this title; or
(B) verifying
the information reported on such student financial aid applications.
(2) Consent. The Secretary may require that
applicants for financial assistance under this
subchapter and part C of subchapter I of chapter 34 of
title 42 provide a consent to the disclosure of the data described in paragraph (1) as a condition of the student
receiving assistance under this
subchapter and part C of subchapter I of chapter 34 of
title 42. The parents of an
applicant, in the case of a dependent student, or the spouse of an applicant,
in the case of an applicant who is married but files separately, may also be
required to provide consent as a condition of the student receiving assistance under this subchapter and part C of
subchapter I of chapter 34 of title 42.
(r) Suspension of eligibility for drug-related
offenses.
(1) In general. A student who is convicted of
any offense under any Federal or State law involving the possession or sale of
a controlled substance for conduct that
occurred during a period of enrollment for which the student was receiving any
grant, loan, or work assistance under this
subchapter and part C of subchapter I of chapter 34 of
title 42 shall not be eligible to receive
any grant, loan, or work assistance under this subchapter and part C
of subchapter I of chapter 34 of title 42 from the date of that conviction for the period of
time specified in the following table:
If convicted of an offense involving:
The possession of a controlled
substance: Ineligibility period is:
First offense........................................1 year
Second offense....................................2 years
Third offense.......................................Indefinite.
The sale of a controlled substance:
Ineligibility period is:
First offense........................................2 years
Second offense................................... Indefinite.
(2) Rehabilitation. A student whose
eligibility has been suspended under paragraph (1)
may resume eligibility before the end of the ineligibility period determined
under such paragraph if—
(A) the student satisfactorily completes
a drug rehabilitation program that—
(i) complies with such criteria as the
Secretary shall prescribe in regulations for purposes of this
paragraph; and
(ii) includes two unannounced
drug tests;
(B) the student
successfully passes two unannounced drug tests conducted by a drug
rehabilitation program that complies with such criteria as the Secretary shall
prescribe in regulations for purposes of paragraph (A)(i); or
(C) the conviction is reversed, set aside, or
otherwise rendered nugatory.
(3) Definitions. In this subsection, the term "controlled substance" has the meaning given
the term in section 802(6) of title 21.
(s) Students with intellectual disabilities.
(1) Definitions. In this subsection, the terms "comprehensive
transition and postsecondary program for students with intellectual
disabilities" and "student with intellectual disability" have
the meanings given the terms in section 1140 of this title.
(2) Requirements. Notwithstanding subsections (a), (b),
(c), and (d),
in order to receive a grant or work assistance under section 1070a of this
title, subpart 3 of part A of this subchapter, or part C of subchapter I of chapter 34 of
title 42, a student with an intellectual disability shall—
(A) be
enrolled or accepted for enrollment in a comprehensive transition and
postsecondary program for students with intellectual disabilities at an
institution of higher education;
(B) be
maintaining satisfactory progress in the program as determined by the
institution, in accordance with standards established by the
institution; and
(C) meet
the requirements of paragraphs (3), (4), (5),
and (6) of subsections (a).
(3) Authority. Notwithstanding any other
provision of law, unless such provision is enacted with specific reference to this section, the Secretary is authorized to waive
any statutory provision applicable to the student financial assistance programs
under section 1070a of this title, subpart 3 of part A of this
subchapter, or part C of
subchapter I of chapter 34 of title 42 (other than a provision
of part E of this subchapter related to such a program), or any
institutional eligibility provisions of this subchapter and part C of
subchapter I of chapter 34 of title 42, as the Secretary
determines necessary to ensure that programs enrolling students with
intellectual disabilities otherwise determined to be eligible under this subsection
may receive such financial assistance.
(4) Regulations. Notwithstanding
regulations applicable to grant or work assistance under section 1070a of
this title, subpart 3 of part A of this subchapter, or part C of subchapter I of chapter 34 of
title 42 (other than a regulation
under part E of this subchapter related to such an award), including with
respect to eligible programs, instructional time, credit status, and enrollment
status as described in section 1088 of this title, the Secretary shall
promulgate regulations allowing programs enrolling students with intellectual
disabilities otherwise determined to be eligible under this subsection to receive such
awards.
(t) Data analysis on access to Federal student aid for certain
populations.
(1) Development of the system. Within one
year of August 14, 2008, the Secretary shall analyze data from the FAFSA containing information regarding the number,
characteristics, and circumstances of students denied Federal student aid based
on a drug conviction while receiving Federal aid.
(2) Results from analysis. The results from the analysis of such information shall be made
available on a continuous basis via the Department website and the Digest of
Education Statistics.
(3) Data updating. The data analyzed under this subsection shall be updated at the beginning
of each award year and at least one additional time during such award year.
(4) Report to Congress. The Secretary shall
prepare and submit to the authorizing committees, in each fiscal year, a report
describing the results obtained by the
establishment and operation of the data system authorized by this subsection.
20 U.S.C. § 1091 (as in effect on Aug. 1, 2011)
*************************************
21 U.S.C. § 802 Definitions
[as in effect
on Aug. 1, 2011]
As used in this subchapter:
. . . .
(6) The term "controlled
substance" means a drug or other substance, or immediate precursor,
included in schedule I, II, III, IV, or V of part B of this
subchapter. The term does not include
distilled spirits, wine, malt beverages, or tobacco, as those terms are defined
or used in subtitle E of the Internal Revenue Code of 1986.
. . . .
21 U.S.C. § 802 (as in effect on Aug. 1, 2011)
*************************************
21 U.S.C. § 812 Schedules of controlled substances
[as in effect
on Aug. 1, 2011]
(a) Establishment.
There are established five schedules of controlled
substances, to be known as schedules I, II, III, IV, and V. Such schedules shall initially consist of the
substances listed in this section. The schedules established by this section
shall be updated and republished on a semiannual basis during the two-year
period beginning one year after October 27, 1970, and shall be updated and
republished on an annual basis thereafter.
. . . .
21 U.S.C. § 812 (as in effect on Aug. 1, 2011)
*************************************
21 U.S.C. § 862 Denial of
Federal benefits to drug traffickers and possessors
[as in effect
on Aug. 1, 2011]
(a) Drug traffickers.
(1) Any
individual who is convicted of any Federal or State offense consisting of the
distribution of controlled substances shall—
(A) at the discretion of the court, upon the first
conviction for such an offense be ineligible for any or all Federal benefits for up to 5 years after
such conviction;
(B) at the discretion of the court, upon a second
conviction for such an offense be ineligible for any or all Federal benefits for up to 10 years after
such conviction; and
(C) upon a third or subsequent conviction for such
an offense be permanently ineligible for all Federal
benefits.
(2) The
benefits which are denied under this subsection
shall not include benefits relating to long-term drug treatment programs for
addiction for any person who, if there is a reasonable body of evidence to
substantiate such declaration, declares himself to be an addict and submits
himself to a long-term treatment program for addiction, or is deemed to be
rehabilitated pursuant to rules established by the Secretary of Health and
Human Services.
(b) Drug possessors.
(1) Any
individual who is convicted of any Federal or State offense involving the
possession of a controlled substance (as such
term is defined for purposes of this subchapter) shall—
(A) upon the first conviction for such an
offense and at the discretion of the court—
(i) be ineligible for any or all Federal benefits for up to one year;
(ii) be required to successfully complete
an approved drug treatment program which includes periodic testing to insure
that the individual remains drug free;
(iii) be required to perform appropriate
community service; or
(iv) any combination of clause (i), (ii), or (iii); and
(B) upon a second or subsequent conviction for such
an offense be ineligible for all Federal benefits
for up to 5 years after such conviction as determined by the court. The court shall continue to have the
discretion in subparagraph (A)
above. In imposing penalties and
conditions under subparagraph (A), the court may require that the
completion of the conditions imposed by clause (ii)
or (iii) be a requirement for the
reinstatement of benefits under clause (i).
(2) The
penalties and conditions which may be imposed under this
subsection shall be waived in the case of a person who, if there is a
reasonable body of evidence to substantiate such declaration, declares himself
to be an addict and submits himself to a long-term treatment program for
addiction, or is deemed to be rehabilitated pursuant to rules established by
the Secretary of Health and Human Services.
(c) Suspension
of period of ineligibility. The period of ineligibility referred to in subsections (a) and (b) of this section
shall be suspended if the individual—
(A) completes a supervised drug rehabilitation
program after becoming ineligible under this section;
(B) has otherwise been rehabilitated; or
(C) has made a good faith effort to gain admission
to a supervised drug rehabilitation program, but is unable to do so because of
inaccessibility or unavailability of such a program, or the inability of the
individual to pay for such a program.
(d) Definitions. As used in this section—
(1) the term "Federal benefit"—
(A) means the issuance of any grant,
contract, loan, professional license, or commercial license provided by an
agency of the United States or by appropriated funds of the United
States; and
(B) does not include any retirement,
welfare, Social Security, health, disability, veterans
benefit, public housing, or other similar benefit, or any other benefit for
which payments or services are required for eligibility; and
(2) the term "veterans benefit" means all
benefits provided to veterans, their families, or survivors by virtue of the
service of a veteran in the Armed Forces of the
(e) Inapplicability
of this section to Government witnesses. The penalties provided by this section shall not apply to any individual who
cooperates or testifies with the Government in the prosecution of a Federal or
State offense or who is in a Government witness protection program.
(f) Indian provision. Nothing in this section shall be construed to affect the
obligation of the
(g) Presidential
report.
(1) On
or before
(A) delineating the role of State courts
in implementing this
section;
(B) describing the manner in which Federal agencies
will implement and enforce the requirements of this section;
(C) detailing the means by which Federal and State
agencies, courts, and law enforcement agencies will exchange and share the data
and information necessary to implement and enforce the withholding of Federal benefits; and
(D) recommending any modifications to improve the
administration of this
section or otherwise achieve the goal of
discouraging the trafficking and possession of controlled
substances.
(2) No
later than
(h) Effective date. The denial of Federal benefits
set forth in this section shall take effect for
convictions occurring after
21 U.S.C. § 862
(as in effect on Aug. 1, 2011)
*************************************
26 U.S.C. § 152 Dependent defined
(as effective for taxable years beginning after
(a) In
general. For purposes of this subtitle, the term
"dependent" means—
(1) a qualifying child, or
(2) a qualifying relative.
(b) Exceptions. For purposes
of this section—
(1) Dependents ineligible. If an
individual is a dependent of a taxpayer for any taxable year of such taxpayer
beginning in a calendar year, such individual shall be treated as having no
dependents for any taxable year of such individual beginning in such calendar
year.
(2) Married dependents. An individual
shall not be treated as a dependent of a taxpayer under subsection (a)
if such individual has made a joint return with the individual's spouse under
section 6013 for the taxable year beginning in the calendar year in which
the taxable year of the taxpayer begins.
(3) Citizens or nationals of other
countries.
(A) In general. The term "dependent"
does not include an individual who is not a citizen or national of the
(B) Exception for adopted child. Subparagraph (A) shall not exclude any child of
a taxpayer (within the meaning of subsection (f)(1)(B))
from the definition of "dependent" if—
(i) for the taxable year of the taxpayer, the child has
the same principal place of abode as the taxpayer and is a member of the
taxpayer's household, and
(ii) the taxpayer is a citizen or national of the
(c) Qualifying
child. For purposes of this
section—
(1) In general. The term
"qualifying child" means, with respect to any taxpayer for any
taxable year, an individual—
(A) who
bears a relationship to the taxpayer described in paragraph (2),
(B) who
has the same principal place of abode as the taxpayer for more than one-half of
such taxable year,
(C) who meets the age requirements of paragraph (3),
(D) who has not provided over one-half of such
individual's own support for the calendar year in which the taxable year of the
taxpayer begins, and
(E) who has not filed a joint return (other than only for
a claim of refund) with the individual's spouse under section 6013 for the
taxable year beginning in the calendar year in which the taxable year of the
taxpayer begins.
(2) Relationship. For purposes
of paragraph (1)(A), an individual bears a
relationship to the taxpayer described in this paragraph
if such individual is—
(A) a child of the taxpayer or a descendant of such a
child, or
(B) a brother, sister, stepbrother, or stepsister of the taxpayer or
a descendant of any such relative.
(3) Age
requirements.
(A) In general. For purposes of paragraph (1)(C), an individual meets the
requirements of this paragraph if such individual
is younger than the taxpayer claiming such individual as a qualifying child and—
(i) has not attained the age of 19 as of the close of
the calendar year in which the taxable year of the taxpayer begins, or
(ii) is a student who has not attained the age of 24
as of the close of such calendar year.
(B) Special rule for disabled. In the case of
an individual who is permanently and totally disabled (as defined in
section 22(e)(3)) at any time during such calendar year, the requirements
of subparagraph (A) shall be treated as met
with respect to such individual.
(4) Special
rule relating to 2 or more who can claim the same qualifying child.
(A) In general. Except as
provided in subparagraphs (B) and (C), if (but for this paragraph)
an individual may be claimed as a qualifying child by 2 or more taxpayers for
a taxable year beginning in the same calendar year, such individual shall be
treated as the qualifying child of the taxpayer who is—
(i) a parent of the individual, or
(ii) if clause (i) does
not apply, the taxpayer with the highest adjusted gross income for such taxable
year.
(B) More
than 1 parent claiming qualifying child. If the parents claiming any qualifying child
do not file a joint return together, such child shall be treated as the
qualifying child of—
(i) the parent with whom the child resided for the longest
period of time during the taxable year, or
(ii) if the child resides with both parents for the same amount
of time during such taxable year, the parent with the highest adjusted gross
income.
(C) No
parent claiming qualifying child. If the parents of an individual may claim
such individual as a qualifying child but no parent so claims the individual,
such individual may be claimed as the qualifying child of another taxpayer but
only if the adjusted gross income of such taxpayer is higher than the highest
adjusted gross income of any parent of the individual.
(d) Qualifying
relative. For purposes of this
section—
(1) In general. The term
"qualifying relative" means, with respect to any taxpayer for any
taxable year, an individual—
(A) who bears a relationship to the taxpayer described in paragraph (2),
(B) whose gross income for the calendar year in which such
taxable year begins is less than the exemption amount (as defined in
section 151(d)),
(C) with respect to whom the taxpayer provides over
one-half of the individual's support for the calendar year in which such
taxable year begins, and
(D) who is not a qualifying child of such taxpayer or of any other
taxpayer for any taxable year beginning in the calendar year in which such taxable
year begins.
(2) Relationship. For purposes
of paragraph (1)(A), an individual bears a
relationship to the taxpayer described in this paragraph if the individual is
any of the following with respect to the taxpayer:
(A) A child or a descendant of a child.
(B) A brother, sister, stepbrother, or stepsister.
(C) The father or mother, or an ancestor of either.
(D) A stepfather or stepmother.
(E) A son or daughter of a brother or sister of the taxpayer.
(F) A brother or sister of the father or mother of the taxpayer.
(G) A son-in-law, daughter-in-law, father-in-law,
mother-in-law, brother-in-law, or sister-in-law.
(H) An individual (other than an individual who at any time during
the taxable year was the spouse, determined without regard to
section 7703, of the taxpayer) who, for the taxable year of the taxpayer,
has the same principal place of abode as the taxpayer and is a member of the
taxpayer's household.
(3) Special
rule relating to multiple support agreements. For purposes of paragraph (1)(C), over one-half of the support of
an individual for a calendar year shall be treated as received from the
taxpayer if—
(A) no one person contributed over one-half of such
support,
(B) over
one-half of such support was received from 2 or more persons each of whom,
but for the fact that any such person alone did not contribute over one-half of
such support, would have been entitled to claim such individual as a dependent
for a taxable year beginning in such calendar year,
(C) the taxpayer contributed over 10 percent of such
support, and
(D) each person described in subparagraph (B)
(other than the taxpayer) who contributed over 10 percent of such support
files a written declaration (in such manner and form as the Secretary may by
regulations prescribe) that such person will not claim such individual as a
dependent for any taxable year beginning in such calendar year.
(4) Special rule relating to income
of handicapped dependents.
(A) In
general. For purposes of paragraph (1)(B),
the gross income of an individual who is permanently and totally disabled (as
defined in section 22(e)(3)) at any time during the taxable year shall not
include income attributable to services performed by the individual at a
sheltered workshop if—
(i) the availability of medical care at such workshop is
the principal reason for the individual's presence there, and
(ii) the income arises solely from activities at such workshop
which are incident to such medical care.
(B) Sheltered workshop defined. For purposes
of subparagraph (A), the term "sheltered
workshop" means a school—
(i) which provides special instruction or training
designed to alleviate the disability of the individual, and
(ii) which is operated by an organization described in
section 501(c)(3) and exempt from tax under section 501(a), or by a
State, a possession of the
(5) Special rules for support. For purposes
of this subsection—
(A) payments to a spouse which are includible in the gross
income of such spouse under section 71 or 682 shall not be treated as
a payment by the payor spouse for the support of any dependent, and
(B) in the case of the remarriage of a parent, support of a child
received from the parent's spouse shall be treated as received from the parent.
(e) Special
rule for divorced parents, etc.
(1) In
general. Notwithstanding subsection (c)(1)(B),
(c)(4), or (d)(1)(C),
if—
(A) a child receives over one-half of the child's support
during the calendar year from the child's parents—
(i) who are divorced or legally separated under a decree
of divorce or separate maintenance,
(ii) who are separated under a written separation
agreement, or
(iii) who live apart at all times during the last 6 months of the
calendar year, and—
(B) such child is in the custody of 1 or both of the child's
parents for more than one-half of the calendar year, such child shall be
treated as being the qualifying child or qualifying relative of the
noncustodial parent for a calendar year if the requirements described in
paragraph (2) or (3) are met.
(2) Exception
where custodial parent releases claim to exemption for the year. For purposes
of paragraph (1), the requirements described in this paragraph are met with respect to any calendar year
if—
(A) the custodial parent signs a written declaration (in
such manner and form as the Secretary may by regulations prescribe) that such
custodial parent will not claim such child as a dependent for any taxable year
beginning in such calendar year, and
(B) the noncustodial parent attaches such written declaration to the
noncustodial parent's return for the taxable year beginning during such
calendar year.
(3) Exception
for certain pre-1985 instruments.
(A) In general. For purposes of paragraph (1), the requirements described in this paragraph are met with respect to any calendar
year if—
(i) a qualified pre‑1985 instrument between the parents applicable to
the taxable year beginning in such calendar year provides that the noncustodial
parent shall be entitled to any deduction allowable under section 151 for
such child, and
(ii) the noncustodial parent provides at least $600
for the support of such child during such calendar year.
For
purposes of this subparagraph, amounts expended
for the support of a child or children shall be treated as received from the
noncustodial parent to the extent that such parent provided amounts for such
support.
(B) Qualified pre‑1985 instrument. For purposes
of this paragraph, the term "qualified pre‑1985
instrument" means any decree of divorce or separate maintenance or written
agreement—
(i) which is executed before
(ii) which on such date contains the provision described in subparagraph (A)(i), and
(iii) which is not modified on or after such date in a modification
which expressly provides that this paragraph shall
not apply to such decree or agreement.
(4) Custodial parent and
noncustodial parent. For purposes of this
subsection—
(A) Custodial
parent. The term "custodial parent" means
the parent having custody for the greater portion of the calendar year.
(B) Noncustodial
parent. The term "noncustodial parent"
means the parent who is not the custodial parent.
(5) Exception for multiple-support
agreement. This subsection shall
not apply in any case where over one-half of the support of the child is
treated as having been received from a taxpayer under the provision of subsection (d)(3).
(6) Special rule for support
received from new spouse of parent. For purposes of this
subsection, in the case of the remarriage of a parent, support of a child
received from the parent's spouse shall be treated as received from the parent.
(f) Other
definitions and rules. For purposes of this
section—
(1) Child defined.
(A) In general. The term
"child" means an individual who is—
(i) a son, daughter, stepson, or stepdaughter of the taxpayer, or
(ii) an eligible foster child of the taxpayer.
(B) Adopted
child. In determining whether any of the
relationships specified in subparagraph (A)(i)
or paragraph (4) exists, a legally adopted
individual of the taxpayer, or an individual who is lawfully placed with the
taxpayer for legal adoption by the taxpayer, shall be treated as a child of
such individual by blood.
(C) Eligible foster child. For purposes
of subparagraph (A)(ii), the term
"eligible foster child" means an individual who is placed with the
taxpayer by an authorized placement agency or by judgment, decree, or other
order of any court of competent jurisdiction.
(2) Student defined. The term
"student" means an individual who during each of 5 calendar
months during the calendar year in which the taxable year of the taxpayer
begins—
(A) is a full-time student at an educational organization
described in section 170(b)(1)(A)(ii), or
(B) is pursuing a full-time course of institutional on-farm training
under the supervision of an accredited agent of an educational organization
described in section 170(b)(1)(A)(ii) or of a State or political
subdivision of a State.
(3) Determination of household
status. An individual shall not be treated as a
member of the taxpayer's household if at any time during the taxable year of
the taxpayer the relationship between such individual and the taxpayer is in
violation of local law.
(4) Brother
and sister. The terms "brother" and
"sister" include a brother or sister by the half blood.
(5) Special support test in case of
students. For purposes of subsections (c)(1)(D)
and (d)(1)(C), in the case of an individual who
is—
(A) a child of the taxpayer, and
(B) a student,
amounts
received as scholarships for study at an educational organization described in
section 170(b)(1)(A)(ii) shall not be taken into account.
(6) Treatment of missing children.
(A) In
general. Solely for the purposes referred to in subparagraph (B), a child of the taxpayer—
(i) who is presumed by law enforcement authorities to have
been kidnapped by someone who is not a member of the family of such child or
the taxpayer, and
(ii) who had, for the taxable year in which the kidnapping
occurred, the same principal place of abode as the taxpayer for more than
one-half of the portion of such year before the date of the kidnapping,
shall
be treated as meeting the requirement of subsection (c)(1)(B)
with respect to a taxpayer for all taxable years ending during the period that
the child is kidnapped.
(B) Purposes. Subparagraph (A) shall apply solely for purposes
of determining—
(i) the deduction under section 151(c),
(ii) the credit under section 24 (relating to child tax
credit),
(iii) whether an individual is a surviving spouse or a head of a
household (as such terms are defined in section 2), and
(iv) the earned income credit under section 32.
(C) Comparable
treatment of certain qualifying relatives. For purposes of this section, a child of the taxpayer—
(i) who is presumed by law enforcement authorities to have
been kidnapped by someone who is not a member of the family of such child or
the taxpayer, and
(ii) who was (without regard to this paragraph) a qualifying
relative of the taxpayer for the portion of the taxable year before the date of
the kidnapping,
shall
be treated as a qualifying relative of the taxpayer for all taxable years
ending
during the period that the child is kidnapped.
(D) Termination of treatment. Subparagraphs (A) and (C)
shall cease to apply as of the first taxable year of the taxpayer beginning
after the calendar year in which there is a determination that the child is dead
(or, if earlier, in which the child would have attained age 18).
(7) Cross references. For provision
treating child as dependent of both parents for purposes of certain provisions,
see sections 105(b), 132(h)(2)(B), and 213(d)(5).
26 U.S.C. § 152 (as effective for taxable years beginning
after
*************************************
28 U.S.C. § 1746 Unsworn
declarations under penalty of perjury
[as in effect
on Aug. 1, 2011]
Wherever,
under any law of the United States or under any rule, regulation, order, or
requirement made pursuant to law, any matter is required or permitted to be
supported, evidenced, established, or proved by the sworn declaration,
verification, certificate, statement, oath, or affidavit, in writing of the
person making the same (other than a deposition, or an oath of office, or an
oath required to be taken before a specified official other than a notary
public), such matter may, with like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration, certificate, verification,
or statement, in writing of such person which is subscribed by him, as true
under penalty of perjury, and dated, in substantially the following form:
(1) If
executed without the United States: "I declare (or certify,
verify, or state) under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct. Executed on (date).
(Signature)".
(2) If
executed within the
(Signature)".
28 U.S.C. § 1746 (as in effect on Aug. 1, 2011)
*************************************
38 U.S.C. § 3532 Computation of educational assistance allowance
[as in effect
on Aug. 1, 2011]
(a)(1) The
educational assistance allowance on behalf of an eligible person who is
pursuing a program of education consisting of institutional courses shall be
paid at the monthly rate of $788 for full-time, $592 for three-quarter-time, or $394
for half-time pursuit.
(2) The
educational assistance allowance on behalf of an eligible person pursuing a
program of education on less than a half-time basis shall be paid at the rate
of the lesser of—
(A) the established charges for tuition
and fees that the educational institution involved requires similarly
circumstanced nonveterans enrolled in the same program to pay; or
(B) $788 per month for a full-time course.
(b) The
educational assistance allowance to be paid on behalf of an eligible person who
is pursuing a full-time program of education which consists of institutional
courses and alternate phases of training in a business or industrial
establishment with the training in the business or industrial establishment
being strictly supplemental to the institutional portion, shall be computed at
the rate of $788 per month.
(c)(1) An
eligible person who is enrolled in an educational institution for a "farm
cooperative" program consisting of institutional agricultural courses
prescheduled to fall within forty-four weeks of any period of twelve
consecutive months and who pursues such program on—
(A) a full-time basis (a minimum of ten
clock hours per week or four hundred and forty clock hours in such year
prescheduled to provide not less than eighty clock hours in any three-month
period),
(B) a three-quarter-time basis (a minimum of seven
clock hours per week), or
(C) a half-time basis (a minimum of five clock hours
per week),
shall be
eligible to receive an educational assistance allowance at the appropriate rate
provided in paragraph (2) of this subsection, if such eligible person is
concurrently engaged in agricultural employment which is relevant to such
institutional agricultural courses as determined under standards prescribed by
the Secretary. In computing the
foregoing clock hour requirements there shall be included the time involved in
field trips and individual and group instruction sponsored and conducted by the
educational institution through a duly authorized instructor of such
institution in which the person is enrolled.
(2) The
monthly educational assistance allowance to be paid on behalf of an eligible
person pursuing a farm cooperative program under this chapter shall be
$636 for full-time, $477 for three-quarter-time, or $319 for
half-time pursuit.
(d) If
a program of education is pursued by an eligible person at an institution
located in the Republic of the
(e) In
the case of an eligible person who is pursuing a program of education under
this chapter while incarcerated in a Federal, State, local, or other penal
institution or correctional facility for conviction of a felony, the
educational assistance allowance shall be paid in the same manner prescribed in
section 3482(g) of this title for incarcerated veterans, except that the
references therein to the monthly educational assistance allowance prescribed
for a veteran with no dependents shall be deemed to refer to the applicable
allowance payable to an eligible person under corresponding provisions of this
chapter or chapter 36 of this title, as determined by the Secretary.
(f)(1) Subject
to paragraph (3), the amount of
educational assistance payable under this chapter for a licensing or
certification test described in section 3501(a)(5) of this title is the
lesser of $2,000 or the fee charged for the test.
(2) The
number of months of entitlement charged in the case of any individual for such
licensing or certification test is equal to the number (including any fraction)
determined by dividing the total amount paid to such individual for such test
by the full-time monthly institutional rate of the educational assistance
allowance which, except for paragraph (1),
such individual would otherwise be paid under this chapter.
(3) In no
event shall payment of educational assistance under this subsection for such a
test exceed the amount of the individual's available entitlement under this
chapter.
(g)(1) Subject to paragraph (3),
the amount of educational assistance payable under this chapter for a national
test for admission or national test providing an opportunity for course credit
at institutions of higher learning described in section 3501(a)(5) of this
title is the amount of the fee charged for the test.
(2) The number of months of entitlement charged in
the case of any
(3) In no event shall payment of educational assistance
under this subsection for a test described in paragraph (1)
exceed the amount of the individual's available entitlement under this chapter.
38 U.S.C. § 3532 (as in effect on Aug. 1, 2011)
*************************************
42 U.S.C. § 423 Disability
insurance benefit payments
[as in effect
on Aug. 1, 2011]
. . .
(d) "Disability"
defined.
(1) The term "disability" means—
(A) inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months; or
(B) in the case of an individual who has attained the age
of 55 and is blind (within the
meaning of "blindness" as defined in section 416(i)(1) of this
title), inability by reason of such blindness to engage in substantial gainful
activity requiring skills or abilities comparable to those of any gainful
activity in which he has previously engaged with some regularity and over a
substantial period of time.
(2) For purposes of paragraph (1)(A)—
(A) An individual shall be determined to be
under a disability only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be hired if he applied
for work. For purposes of the preceding
sentence (with respect to any individual), "work which exists in the
national economy" means work which exists in significant numbers either in
the region where such individual lives or in several regions of the country.
(B) In determining whether an individual's physical or mental
impairment or impairments are of a sufficient medical severity that such
impairment or impairments could be the basis of eligibility under this section,
the Commissioner of Social Security shall consider the combined effect of all
of the individual's impairments without regard to whether any such impairment,
if considered separately, would be of such severity. If the Commissioner of Social Security does
find a medically severe combination of impairments, the combined impact of the
impairments shall be considered throughout the disability determination
process.
(C) An individual shall not be considered to be disabled for
purposes of this subchapter if alcoholism or drug addiction would (but for this
subparagraph) be a contributing factor material to the Commissioner's determination
that the individual is disabled.
(3) For purposes of this subsection, a
"physical or mental impairment" is an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.
(4)(A) The Commissioner of Social Security shall by regulations
prescribe the criteria for determining when services performed or earnings
derived from services demonstrate an individual's ability to engage in
substantial gainful activity. No
individual who is blind shall be regarded as having demonstrated an ability to
engage in substantial gainful activity on the basis of earnings that do not
exceed an amount equal to the exempt amount which would be applicable under
section 403(f)(8) of this title, to individuals described in
subparagraph (D) thereof, if section 102 of the Senior Citizens'
Right to Work Act of 1996 had not been enacted.
Notwithstanding the provisions of paragraph (2),
an individual whose services or earnings meet such criteria shall, except for
purposes of section 422(c) of this title, be found not to be
disabled. In determining whether an
individual is able to engage in substantial gainful activity by reason of his
earnings, where his disability is sufficiently severe to result in a functional
limitation requiring assistance in order for him to work, there shall be
excluded from such earnings an amount equal to the cost (to such individual) of
any attendant care services, medical devices, equipment, prostheses, and
similar items and services (not including routine drugs or routine medical
services unless such drugs or services are necessary for the control of the
disabling condition) which are necessary (as determined by the Commissioner of
Social Security in regulations) for that purpose, whether or not such
assistance is also needed to enable him to carry out his normal daily
functions; except that the amounts to be
excluded shall be subject to such reasonable limits as the Commissioner of
Social Security may prescribe.
(B) In determining under subparagraph (A) when services performed or
earnings derived from services demonstrate an individual's ability to engage in
substantial gainful activity, the Commissioner of Social Security shall apply
the criteria described in subparagraph (A) with respect to services
performed by any individual without regard to the legality of such services.
(5)(A) An individual shall not be considered to be under a
disability unless he furnishes such medical and other evidence of the existence
thereof as the Commissioner of Social Security may require. An individual's statement as to pain or other
symptoms shall not alone be conclusive evidence of disability as defined in
this section; there must be medical signs and findings, established by
medically acceptable clinical or laboratory diagnostic techniques, which show
the existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could reasonably be
expected to produce the pain or other symptoms alleged and which, when
considered with all evidence required to be furnished under this paragraph
(including statements of the individual or his physician as to the intensity
and persistence of such pain or other symptoms which may reasonably be accepted
as consistent with the medical signs and findings), would lead to a conclusion
that the individual is under a disability.
Objective medical evidence of pain or other symptoms established by
medically acceptable clinical or laboratory techniques (for example,
deteriorating nerve or muscle tissue) must be considered in reaching a
conclusion as to whether the individual is under a disability. Any non-Federal hospital, clinic, laboratory,
or other provider of medical services, or physician not in the employ of the
Federal Government, which supplies medical evidence required and requested by
the Commissioner of Social Security under this paragraph shall be entitled to
payment from the Commissioner of Social Security for the reasonable cost of
providing such evidence.
(B) In making any determination with respect to whether an
individual is under a disability or continues to be under a disability, the
Commissioner of Social Security shall consider all evidence available in such
individual's case record, and shall develop a complete medical history of at
least the preceding twelve months for any case in which a determination is made
that the individual is not under a disability.
In making any determination the Commissioner of Social Security shall
make every reasonable effort to obtain from the individual's treating physician
(or other treating health care provider) all medical evidence, including
diagnostic tests, necessary in order to properly make such determination, prior
to evaluating medical evidence obtained from any other source on a consultative
basis.
(6)(A) Notwithstanding any other provision of this
subchapter, any physical or mental impairment which arises in connection with
the commission by an individual (after October 19, 1980) of an offense
which constitutes a felony under applicable law and for which such individual
is subsequently convicted, or which is aggravated in connection with such an
offense (but only to the extent so aggravated), shall not be considered in
determining whether an individual is under a disability.
(B) Notwithstanding any other provision of this subchapter, any
physical or mental impairment which arises in connection with an individual's
confinement in a jail, prison, or other penal institution or correctional
facility pursuant to such individual's conviction of an offense (committed
after October 19, 1980) constituting a felony under applicable law, or
which is aggravated in connection with such a confinement (but only to the
extent so aggravated), shall not be considered in determining whether such
individual is under a disability for purposes of benefits payable for any month
during which such individual is so confined.
. . . .
42 U.S.C. § 423 (as in effect on Aug. 1, 2011)
*************************************
42 U.S.C. § 3782 Rules, regulations, and procedures; consultations and
establishment
[as in effect
on Aug. 1, 2011]
(a) General
authorization of certain Federal agencies. The Office of Justice Programs,
the Bureau of Justice Assistance, the Office of Juvenile Justice and
Delinquency Prevention, the Bureau of Justice Statistics, and the National
Institute of Justice are authorized, after appropriate consultation with
representatives of States
and units of local government, to establish
such rules, regulations, and procedures as are
necessary to the exercise of their functions, and as are consistent with the
stated purposes of this title [chapter].
. . .
42 U.S.C. § 3782
(as in effect on Aug. 1, 2011)
*************************************
42 U.S.C. § 3787 Subpoena power; employment of hearing officers; authority to hold hearings
[as in effect
on Aug. 1, 2011]
The Bureau of Justice Assistance, the
National Institute of Justice, and the Bureau of Justice Statistics may appoint such hearing examiners or
administrative law judges or request the use of such administrative law judges
selected by the Office of Personnel Management pursuant to section 3344 of
Title 5, as shall be necessary to carry out their respective powers and
duties under this title [chapter]. The Bureau of Justice Assistance, the
National Institute of Justice, and the Bureau of Justice Statistics or upon
authorization, any member thereof or any hearing examiner or administrative law judge assigned
to or employed thereby shall have the power to hold hearings and issue subpoenas, administer
oaths, examine witnesses, and receive evidence at any place in the United
States they respectively may designate.
42 U.S.C. § 3787
(as in effect on Aug. 1, 2011)
*************************************
42 U.S.C. § 3788 Personnel and administrative authority
[as in effect
on Aug. 1, 2011]
. . .
(b) Use of available services;
reimbursement. The Office [of Justice Programs], the Bureau
of Justice Assistance, the National Institute of Justice, and the Bureau of
Justice Statistics are authorized, on a reimbursable basis when appropriate, to
use the available services, equipment, personnel, and facilities of Federal, State, and local agencies to the extent deemed appropriate
after giving due consideration to the effectiveness of such existing services,
equipment, personnel, and facilities.
(c) Other Federal agency
performance of functions under this chapter; reimbursement. The Office [of
Justice Programs], the Bureau of Justice Assistance, the National Institute of
Justice, and the Bureau of Justice Statistics may arrange with and reimburse
the heads of other Federal departments and agencies for the performance of any
of the functions under this title [chapter].
(d) Experts and consultants;
compensation. The Office [of Justice Programs], the Bureau
of Justice Assistance, the National Institute of Justice, and the Bureau of
Justice Statistics may procure the services of experts and consultants in
accordance with section 3109 of title 5, United States Code, relating
to appointments in the Federal service, at rates of compensation for
individuals not to exceed the daily equivalent of the rate of pay payable from
time to time for GS‑18 of the General Schedule under section 5332 of
title 5, United States Code.
. . .
42 U.S.C. § 3788
(as in effect on Aug. 1, 2011)
*************************************
42 U.S.C. § 3791 General provisions
[as in effect
on Aug. 1, 2011]
(a) Definitions. As used in this
title [chapter]—
. . .
(2) "State" means any State of the
(3) "unit of local government" means—
(A) any city, county, township, town, borough,
parish, village, or other general purpose political subdivision of a State;
(B) any law enforcement district
or judicial enforcement district that—
(i) is established under applicable State law; and
(ii) has the authority to, in
a manner independent of other State entities,
establish a budget and impose taxes;
(C) an Indian Tribe that
performs law
enforcement functions, as determined by the
Secretary of the Interior; or
(D) for the purposes of assistance eligibility, any
agency of the government of the
(i) the
(ii) any
. . .
(7) "correctional facility" means any place for
the confinement or rehabilitation of offenders or individuals charged with or
convicted of criminal offenses;
. . .
(15) "Attorney General" means the Attorney General of the
. . .
(26) the term "Indian tribe" has the meaning given the
term "Indian tribe" in section 450b(e) of
title 25; . . . .
42 U.S.C. § 3791 (as in effect on Aug. 1, 2011)
*************************************
42 U.S.C. § 3793 Authorization of appropriations
[as in effect
on Aug. 1, 2011]
(a)
. . .
(4) There are authorized to be appropriated for each
fiscal year such sums as may be necessary to carry out part L
[subchapter XII] of this title [chapter].
. . .
(b) Funds
appropriated for any fiscal year may remain available for obligation until
expended.
. . .
42 U.S.C. § 3793
(as in effect on Aug. 1, 2011)
*************************************
42 U.S.C. § 3795a Falsification or concealment of facts
[as in effect
on Aug. 1, 2011]
Whoever knowingly and willfully falsifies, conceals, or covers up by
trick, scheme, or device, any material fact in any application for assistance
submitted pursuant to this title [chapter]
or in any records required to be maintained pursuant to this title shall
be subject to prosecution under the provisions of section 1001
of title 18, United States Code.
42 U.S.C. § 3795a
(as in effect on Aug. 1, 2011)
*************************************
42 U.S.C. The Public Health and Welfare
Chapter 68 Disaster
Relief
[as in effect
on Aug. 1, 2011]
Sec. 5121. Congressional findings and declarations
through
Sec. 5206. Buy American
*************************************
Higher Education Act of 1965,
Pub. L. No. 89‑329, § 481, as in effect on
Sec.
481. Definitions
(a) Institution of higher education
(1) Subject to paragraphs (2)
through (4) of this subsection,
the term "institution of higher education" for purposes of
[subchapter IV of chapter 28 of title 20, United States Code]
and part C of subchapter I of chapter 34 of title 42 [of
such Code] includes, in addition to the institutions covered by the definition
in section 1141(a) of [such title 20]—
(A) a proprietary
institution of higher education;
(B) a postsecondary
vocational institution; and
(C) only for the purposes of part B
of [such subchapter IV], an institution outside the United States which is
comparable to an institution of higher education as defined in
section 1141(a) of [such title 20] and which has been approved by the
Secretary for the purpose of part B of [such subchapter IV].
(2)(A) For the purpose of qualifying as an
institution under paragraph (1)(C) of this subsection, the Secretary shall establish criteria by
regulation for the approval of institutions outside the United States and for
the determination that such institutions are comparable to an institution of
higher education as defined in section 1141(a) of [such
title 20]. In the case of a
graduate medical school outside the United States, such criteria shall include
a requirement that a student attending a graduate medical school outside the
United States is ineligible for loans made, insured, or guaranteed under
part B of [such subchapter IV] unless—
(i)(I) at least 60 percent of those enrolled and at
least 60 percent of the graduates of the graduate medical school outside
the United States were not persons described in section 1091(a)(5) of
[such title 20] in the year preceding the year for which a student is
seeking a loan under part B of [such subchapter IV]; and
(II) at least 60 percent of the individuals who were
students or graduates of the graduate medical school outside the United States
(both nationals of the United States and others) taking the examinations
administered by the Educational Commission for Foreign Medical Graduates
received a passing score in the year preceding the year for which a student is
seeking a loan under part B of [such subchapter IV]; or
(ii) the institution's clinical training
program was approved by a State as of
(B) For the purpose of qualifying as an
institution under paragraph (1)(C), the Secretary
shall establish an advisory panel of medical experts which shall—
(i) evaluate the standards of accreditation applied to applicant
foreign medical schools; and
(ii) determine
the comparability of those standards to standards for accreditation applied to
If such accreditation standards are determined not to be
comparable, the foreign medical school shall be required to meet the
requirements of section 1141(a) of [such title 20].
(C) The failure of an institution outside
the United States to provide, release, or authorize release to the Secretary of
such information as may be required by subparagraph (A)
of this paragraph shall render such institution ineligible
for the purpose of part B of [such subchapter IV].
(D) The Secretary shall, not later than
one year after July 23, 1992, prepare and submit to the Committee on
Education and Labor of the House of Representatives and the Committee on Labor
and Human Resources of the Senate a report on the implementation of the
regulations required by subparagraph (A) of this paragraph.
(E) If, pursuant to this
paragraph, an institution loses eligibility to participate in the programs
under [such subchapter IV] and part C of subchapter I of
chapter 34 of [such] title 42, then a student enrolled at such
institution may, notwithstanding such loss of eligibility, continue to be
eligible to receive a loan under part B of [such subchapter IV] while
attending such institution for the academic year succeeding the academic year
in which such loss of eligibility occurred.
(3) An institution shall not be
considered to meet the definition of an institution of higher education in paragraph (1), if such institution—
(A) offers more than 50 percent of
such institution's courses by correspondence, unless the institution is an
institution that meets the definition in section 2471(4)(C) of [such
title 20];
(B) enrolls 50 percent or more of
its students in correspondence courses, unless the institution is an
institution that meets the definition in such section, except that the
Secretary, at the request of such institution, may waive the applicability of this subparagraph to such institution for good cause,
as determined by the Secretary in the case of an institution of higher
education that provides a 2-year or 4-year program of instruction for which the
institution awards an associate or baccalaureate degree;
(C) has a student enrollment in which
more than 25 percent of the students are incarcerated, except that the
Secretary may waive the prohibition of this subparagraph
for a nonprofit institution that provides a 4‑year or a 2‑year
program of instruction (or both) for which it awards a bachelor's or
associate's degree, respectively; or
(D) has a student enrollment in which
more than 50 percent of the students do not have a high school diploma or
its recognized equivalent and does not provide a 4‑year or a 2‑year
program of instruction (or both) for which it awards a bachelor's or
associate's degree, respectively, except that the Secretary may waive the
limitation contained in this subparagraph if a
nonprofit institution demonstrates to the satisfaction of the Secretary that it
exceeds such limitation because it serves, through contracts with Federal,
State, or local government agencies, significant numbers of students who do not
have a high school diploma or its recognized equivalent.
(4) An institution shall not be
considered to meet the definition of an institution of higher education in paragraph (1) if—
(A) the institution, or an affiliate of
the institution that has the power, by contract or ownership interest, to
direct or cause the direction of the management or policies of the institution,
has filed for bankruptcy; or
(B) the institution, its owner, or its
chief executive officer has been convicted of, or has pled nolo contendere or
guilty to, a crime involving the acquisition, use, or expenditure of funds
under [such subchapter IV] or part C of subchapter I of
chapter 34 of [such] title 42, or has been judicially determined to
have committed fraud involving funds under [such subchapter IV] or
part C of subchapter I of chapter 34 of [such] title 42.
(5) The Secretary shall certify an
institution's qualification as an institution of higher education in accordance
with the requirements of subpart 3 of part G of [such
subchapter IV].
(6) An institution of higher education
shall not be considered to meet the definition of an institution of higher
education in paragraph (1) if such institution is
removed from eligibility for funds under [such subchapter IV] and
part C of subchapter I of chapter 34 of [such] title 42, as
a result of an action pursuant to part G of [such subchapter IV].
(b) Proprietary institution of higher education
For the purpose of this section, the
term "proprietary institution of higher education" means a school
(1) which
provides an eligible program of training to prepare students for gainful
employment in a recognized occupation,
(2) which
meets the requirements of clauses (1) and (2) of section 1141(a)
of [such title 20],
(3) which
does not meet the requirement of clause (4) of section 1141(a) of
[such title 20],
(4) which
is accredited by a nationally recognized accrediting agency or association
approved by the Secretary pursuant to part G of [such subchapter IV],
(5) which
has been in existence for at least 2 years. Such term also includes a proprietary
educational institution in any State which, in lieu of the requirement in
clause (1) of section 1141(a) of [such title 20], admits as
regular students persons who are beyond the age of compulsory school attendance
in the State in which the institution is located and
(6) which
has at least 15 percent of its revenues from sources that are not derived
from funds provided under [such subchapter IV] and part C of
subchapter I of chapter 34 of [such] title 42, as determined in
accordance with regulations prescribed by the Secretary.
(c) Postsecondary vocational institution
For the purpose of this section, the
term "postsecondary vocational institution" means a school
(1) which
provides an eligible program of training to prepare students for gainful
employment in a recognized occupation,
(2) which
meets the requirements of clauses (1), (2), (4), and (5) of
section 1141(a) of [such title 20], and
(3) which
has been in existence for at least 2 years.
Such term
also includes an educational institution in any State which, in lieu of the
requirement in clause (1) of section 1141(a) of [such title 20],
admits as regular students persons who are beyond the age of compulsory school
attendance in the State in which the institution is located.
(d) Academic
and award year
(1) For the purpose of any program under [such subchapter IV] and
part C of subchapter I of chapter 34 of [such] title 42, the term "award year" shall be
defined as the period beginning July 1 and ending June 30 of the following
year.
(2) For the purpose of any program under [such subchapter IV] and
part C of subchapter I of chapter 34 of [such] title 42, the term "academic year" shall
require a minimum of 30 weeks of instructional time, and, with respect to
an undergraduate course of study, shall require that during such minimum period
of instructional time a full-time student is expected to complete at least
24 semester or trimester hours or 36 quarter hours at an institution
that measures program length in credit hours, or at least 900 clock hours
at an institution that measures program length in clock hours. The Secretary may reduce such minimum of
30 weeks to not less than 26 weeks for good cause, as determined by
the Secretary on a case-by-case basis, in the case of an institution of higher
education that provides a 2‑year or 4‑year program of instruction
for which the institution awards an associate or baccalaureate degree.
(e) Eligible
program
(1) For purposes of this [subchapter IV] and part C
of subchapter I of chapter 34 of [such] title 42, the term "eligible program"
means a program of at least—
(A) 600 clock hours of
instruction, 16 semester hours, or 24 quarter hours, offered during a
minimum of 15 weeks, in the case of a program that—
(i) provides a program of
training to prepare students for gainful employment in a recognized profession; and
(ii) admits
students who have not completed the equivalent of an associate degree; or
(B) 300 clock hours of
instruction, 8 semester hours, or 12 hours, offered during a minimum
of 10 weeks, in the case of—
(i) an undergraduate program
that requires the equivalent of an associate degree for admissions; or
(ii) a graduate or
professional program.
(2)(A) A program is an eligible program for
purposes of part B of [such subchapter IV] if it is a program of at
least 300 clock hours of instruction, but less than 600 clock hours
of instruction, offered during a minimum of 10 weeks, that—
(i) has a verified completion
rate of at least 70 percent, as determined in accordance with the
regulations of the Secretary;
(ii) has a
verified placement rate of at least 70 percent, as determined in
accordance with the regulations of the Secretary; and
(iii) satisfies such
further criteria as the Secretary may prescribe by regulation.
(B) In the case of a program being determined eligible for the
first time under this paragraph, such determination
shall be made by the Secretary before such program is considered to have
satisfied the requirements of this paragraph.
(f) Third
party servicer
For purposes of this [subchapter IV] and part C of subchapter I of
chapter 34 of [such] title 42, the term "third party servicer" means any individual, or
any State, or private, profit or nonprofit organization which enters into a
contract with—
(1) any eligible institution
of higher education to administer, through either manual or automated
processing, any aspect of such institution's student assistance programs under [such subchapter IV] and
part C of subchapter I of chapter 34 of [such] title 42; or
(2) any guaranty
agency, or any eligible lender, to administer, through either manual or
automated processing, any aspect of such guaranty agency's or lender's student
loan programs under part B of this subchapter, including originating,
guaranteeing, monitoring, processing, servicing, or collecting loans.
Pub. L. No. 89‑329, § 481, as in
effect on
*************************************
Omnibus Crime
Control and Safe Streets Act of 1968,
Pub. L. No. 90‑351, tit. XI, § 1601, 82 Stat. 197,
239
Sec. 1601. If the provisions of any part of this Act or any amendments made thereby or the
application thereof to any person or circumstances be held invalid, the
provisions of the other parts and their application to other persons or circumstances
shall not be affected thereby.
Pub. L. No. 90‑351
*************************************
Public Safety Officers' Benefits Act of 1976, Pub. L. No. 94‑430,
§§
(signed
into law by the President on
Sec. 3. Section 520 of the Omnibus
Crime Control and Safe Streets Act of 1968, as amended, is amended by
adding at the end thereof the following new subsection:
"(c) There are authorized to be appropriated
in each fiscal year such sums as may be necessary to carry out the purposes of part J.".
Sec. 4. The
authority to make payments under part J of the Omnibus Crime Control and Safe Streets Act of 1968
(as added by section 2 of this Act) shall be
effective only to the extent provided for in advance by appropriation Acts.
Sec. 5. If
the provisions of any part of this Act are found
invalid, the provisions of the other parts and their application to other
persons or circumstances shall not be affected thereby.
Sec. 6. The amendments made by this Act
shall become effective and apply to deaths
occurring from injuries sustained on or after the date of enactment of this Act.
Pub. L. No. 94‑430
*************************************
Justice Assistance Act of 1984, Pub. L. No. 98‑473,
tit. II, § 609AA, 98 Stat. 1837, 2107
Sec. 609AA. Effective Dates
. . . .
(b)(1) The amendment made by section 609F shall
take effect on
. . . .
Pub. L. No. 98‑473
*************************************
Department of Justice Appropriation Act, 1987,
Pub. L. No. 99‑500, § 101(b), tit. II, 100 Stat. 1783
(section 207 signed into law
by the President on
Pub. L. No. 99‑500
*************************************
Crime Control Act of 1990, Pub. L. No. 101‑647,
§ 1303, 104 Stat. 4789, 4835
(signed into law by the
President on
Sec. 1303. Effective
Date.—The amendments made by this title shall take effect
upon enactment and shall not apply with respect to injuries occurring before the effective
date of such amendments.
Pub. L. No. 101‑647
*************************************
Federal Law Enforcement Dependents Assistance Act of
1996, Pub. L. No. 104‑238, 110 Stat. 3114
(signed into law by the
President on October 3, 1996)
Pub. L. No. 104‑238
*************************************
(signed into law by the
President on November 13, 1998)
Pub. L. No. 105‑390
*************************************
Pub. L. No. 106‑276, 114 Stat. 812,
812 (
An Act
To amend the Omnibus Crime Control and Safe Streets Act of 1968
to extend the retroactive eligibility dates for financial assistance for higher education
for spouses and dependent children of Federal, State, and local law enforcement officers who are killed in the line of duty.
Be
it enacted by the Senate and House of Representatives of the
of
Sec. 1. Extension of retroactive
eligibility dates for financial assistance for higher education for spouses and
children of law enforcement officers killed in the line of duty.
(a) In
General.—Section 1216(a)
of the Omnibus Crime Control and Safe Streets Act of 1968
(42 U.S.C. 3796d‑5(a))
is amended—
(1) by striking "May 1, 1992", and
inserting "January 1, 1978,"; and
(2) by striking "October 1, 1997",
and inserting "January 1, 1978,".
(b) Effective
Date.—The amendments made by subsection (a) shall take effect
Pub. L. No. 106‑276
*************************************
Disaster Mitigation Act of 2000, Pub. L.
No. 106‑390, § 305, 114 Stat. 1552, 1573 ‑ 1574
(signed into law by the
President on
Sec. 305. Effective Date.
. . . .
(b) Effective
Date.—The amendment made by subsection (a)
applies only to employees described in subparagraphs (B) or (C) of section 1204(7) of the Omnibus Crime Control and Safe Streets Act of 1968
(as amended by subsection (a)) who are injured or
die
in the line of duty on or after the date of enactment of this Act.
Pub. L. No. 106‑390
*************************************
Pub. L. No. 107‑37, 115 Stat. 219, 219 (
An Act
To provide for
the expedited payment of certain benefits for a public safety officer
who was killed
or suffered a catastrophic
injury as a direct and proximate result of a personal injury sustained in the line
of duty in connection with the terrorist attacks of
Be
it enacted by the Senate and House of Representatives of the
of
Sec. 1. Expedited payment
for heroic public safety officers.
Notwithstanding the limitations of subsection (b)
of section 1201
or the provisions of subsections (c),
(d), and (e) of such
section or section 1202
of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3796,
3796a), upon certification (containing identification of all eligible payees
of benefits pursuant to section 1201) by a public agency that
a public safety
officer employed by such agency was killed or suffered
a catastrophic injury producing
permanent and total disability as a direct and proximate result of a
personal injury sustained in the line
of duty as described in section 1201
of such Act in connection with the rescue or recovery efforts
related to the terrorist attacks of September 11, 2001, the Director of
the Bureau of Justice Assistance shall authorize payment
to qualified beneficiaries,
said payment to be made not later than 30 days
after receipt of such certification, benefits [sic] described under subpart 1 of part L of [title I of] such Act (42 U.S.C. 3796
et seq.).
Sec. 2. Definitions.
For purposes of this
Act, the terms "catastrophic injury", "public agency",
and "public
safety officer" have the same meanings given such terms in section 1204 of title I of the Omnibus
Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796b).
Pub. L. No. 107‑37, as amended by Pub. L. No. 107‑56
*************************************
(signed
into law by the President on
Sec. 2. Construction;
severability.
Any provision of this Act
held to be invalid or unenforceable by its terms, or as applied to any person
or circumstance, shall be construed so as to give it the maximum effect
permitted by law, unless such holding shall be one of utter invalidity or
unenforceability, in which event such provision shall be deemed severable from
this Act and shall not affect the remainder thereof or the application of such
provision to other persons not similarly situated or to other, dissimilar
circumstances.
. . .
Sec. 612. Technical correction with respect to
expedited payments for heroic public safety officers.
Section 1
of Public Law 107‑37 (an Act to
provide for the expedited payment of certain benefits for a public safety
officer who was killed
or suffered a
catastrophic injury as a direct and proximate result of a personal injury
sustained in the
line of duty in connection with the terrorist attacks of
(1) inserting before "by a" the
following: "(containing identification of all eligible payees of
benefits pursuant to section 1201)";
(2) inserting "producing permanent
and total disability" after "suffered a catastrophic injury"; and
(3) striking "1201(a)" and
inserting "1201".
Pub. L. No. 107‑56
*************************************
Sec. 2. Benefits for Chaplains.
. . . .
(c) Effective Date.—The amendments made by this section shall take effect
on
Pub. L. No. 107‑196
*************************************
Hometown Heroes Survivors Benefits Act of 2003,
Pub. L. No. 108‑182, 117 Stat. 2649
(signed into law by the
President on
Pub. L. No. 108‑182
*************************************
Department of Justice Appropriations Authorization
Act, 2006, Pub. L. No. 109‑162, § 1164, 119 Stat. 2960,
3120
(signed into law by the
President on January 5, 2006)
Sec. 1164. Clarification of persons eligible for
benefits under public safety officers' death benefits programs.
. . . .
(d) Designation of Beneficiary.—Section 1201(a)(4) of such Act (42 U.S.C. 3796(a)(4))
is amended to read as follows:
"(4) if there is no surviving spouse
or surviving child—
"(A) in the case of a claim made on or after
the date that is 90 days after the date of enactment
of this subparagraph, to
the individual designated by such officer
as beneficiary under this section in such officer's most
recently executed designation of beneficiary on file at the time of death
with such officer's public safety agency,
organization, or unit, provided that such individual survived such officer; or
"(B) if there is no individual qualifying
under subparagraph (A),
to the individual designated by such
officer as beneficiary under such officer's
most recently executed life insurance policy on
file at the time of death with such officer's public
safety agency, organization, or unit, provided that such individual survived
such officer; or".
. . . .
Pub. L. No. 109‑162
*************************************
28 C.F.R. § 0.94‑1 Bureau of Justice Assistance
[as in effect on Aug. 1, 2011]
(a) The
Bureau of Justice Assistance is headed by a Director
. . . . Under the general
authority of the Attorney General and reporting through the Assistant Attorney
General, Office of Justice Programs, the Director performs functions and administers
programs . . . . The
Director also administers the Public Safety Officers' Death Benefits Program
under 42
. . . .
28 C.F.R. § 0.94‑1 (as in effect on Aug. 1, 2011)
*************************************
Fed. R. Evid. 301 Presumptions in General in Civil Actions and Proceedings
[as in effect
on Aug. 1, 2011]
In all civil actions and proceedings not otherwise
provided for by Act of Congress or by these rules, a presumption imposes on the
party against whom it is directed the burden of going forward with evidence to
rebut or meet the presumption, but does not shift to such party the burden of
proof in the sense of the risk of nonpersuasion, which remains throughout the
trial upon the party on whom it was originally cast.
Fed. R. Evid. 301
(as in effect on Aug. 1, 2011)
*************************************
Fed. R. Evid. 401 Definition of "Relevant Evidence"
[as in effect
on Aug. 1, 2011]
"Relevant evidence" means evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.
Fed. R. Evid. 401
(as in effect on Aug. 1, 2011)
*************************************
Fed. R. Evid. 402 Relevant Evidence Generally Admissible; Irrelevant
Evidence Inadmissible
[as in effect
on Aug. 1, 2011]
All relevant evidence is
admissible, except as otherwise provided by the Constitution of the United
States, by Act of Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible.
Fed. R. Evid. 402
(as in effect on Aug. 1, 2011)
*************************************
[as in effect
on Aug. 1, 2011]
Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but
need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert
witnesses.
Rule 603. Oath or Affirmation
Before testifying, every witness shall be required to
declare that the witness will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness' conscience and impress
the witness' mind with the duty to do so.
Rule 604. Interpreters
An interpreter is subject to the provisions of these
rules relating to qualification as an expert and the administration of an oath or affirmation to make a true
translation.
Fed. R. Evid. 602 ‑ 604 (as in effect on Aug. 1, 2011)
*************************************
[as in effect
on Aug. 1, 2011]
Rule 701.
Opinion Testimony by Lay Witnesses
If the witness is not testifying as
an expert, the witness' testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on
the perception of the witness, (b) helpful to a clear understanding of the
witness' testimony or the determination of a fact in issue, and (c) not
based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.
Rule 702.
Testimony by Experts
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Rule 703.
Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived by or made known to
the expert at or before the hearing. If
of a type reasonably relied upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference
to be admitted. Facts
or data that are otherwise inadmissible shall not be disclosed to the jury
by the proponent of the opinion or inference unless the court determines that
their probative value in assisting the jury to evaluate the expert's opinion
substantially outweighs their prejudicial effect.
Rule 704.
Opinion on Ultimate Issue
(a) Except
as provided in subdivision (b), testimony
in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier
of fact.
(b) No expert witness testifying with respect to the
mental state or condition of a defendant in a criminal case may state an
opinion or inference as to whether the defendant did or did not have the mental
state or condition constituting an element of the crime charged or of a defense
thereto. Such ultimate issues are
matters for the trier of fact alone.
Fed. R. Evid. 701 ‑ 704 (as in effect on Aug. 1, 2011)
*************************************
[as in effect
on Aug. 1, 2011]
Rule 901.
Requirement of Authentication or Identification
(a) General provision. The
requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is what its
proponent claims.
(b) Illustrations. By way of
illustration only, and not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with
knowledge. Testimony that a matter is what it is claimed
to be.
(2) Nonexpert opinion on
handwriting. Nonexpert opinion
as to the genuineness of handwriting, based upon familiarity not acquired for
purposes of the litigation.
(3) Comparison by trier or
expert witness. Comparison by the trier of fact or by expert
witnesses with specimens which have been authenticated.
(4) Distinctive characteristics
and the like. Appearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in conjunction with
circumstances.
(5) Voice identification.
Identification of a voice, whether heard firsthand or through mechanical
or electronic transmission or recording, by opinion
based upon hearing the voice at any time under circumstances connecting it with
the alleged speaker.
(6) Telephone conversations.
Telephone conversations, by evidence that a call was made
to the number assigned at the time by the telephone company to a particular
person or business, if (A) in the case of a person, circumstances,
including self-identification, show the person answering to be the one called,
or (B) in the case of a business, the call was made to a place of business
and the conversation related to business reasonably transacted over the
telephone.
(7) Public records or reports.
Evidence that a writing authorized by
law to be recorded or filed and in fact recorded or filed in a public office,
or a purported public record, report, statement, or data compilation, in any
form, is from the public office where items of this nature are kept.
(8) Ancient documents or data
compilation. Evidence that a document or
data compilation, in any form, (A) is in such condition as to create no
suspicion concerning its authenticity, (B) was in a place where it, if authentic,
would likely be, and (C) has been in existence 20 years or more at
the time it is offered.
(9) Process or system.
Evidence describing a process or system used to produce a
result and showing that the process or system produces an accurate result.
(10) Methods provided by statute
or rule. Any method of authentication or
identification provided by Act of Congress or by other rules prescribed by the
Supreme Court pursuant to statutory authority.
Rule 902.
Self-authentication
Extrinsic evidence of
authenticity as a condition precedent to admissibility is
not required with respect to the following:
(1) Domestic public documents under
seal. A document bearing a seal purporting to be
that of the
(2) Domestic public documents not
under seal. A document purporting to bear the signature
in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no
seal, if a public officer having a seal and having official duties in the
district or political subdivision of the officer or employee certifies under
seal that the signer has the official capacity and that the signature is
genuine.
(3) Foreign public documents.
A document purporting to be executed or attested in an official capacity
by a person authorized by the laws of a foreign country to make the execution
or attestation, and accompanied by a final certification as to the genuineness
of the signature and official position (A) of the executing or attesting
person, or (B) of any foreign official whose certificate of genuineness of
signature and official position relates to the execution or attestation or is
in a chain of certificates of genuineness of signature and official position
relating to the execution or attestation.
A final certification may be made by a secretary of an embassy or
legation, consul general, consul, vice consul, or consular agent of the
(4) Certified copies of public
records. A copy of an official record or report or
entry therein, or of a document authorized by law to be recorded or filed and
actually recorded or filed in a public office, including data compilations in
any form, certified as correct by the custodian or other person authorized to
make the certification, by certificate complying with paragraph (1),
(2), or (3) of this rule or complying with any Act of Congress or rule
prescribed by the Supreme Court pursuant to statutory authority.
(5) Official publications.
Books, pamphlets, or other publications purporting to be issued by
public authority.
(6) Newspapers and periodicals.
Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the
like. Inscriptions, signs, tags, or labels
purporting to have been affixed in the course of business and indicating
ownership, control, or origin.
(8) Acknowledged documents.
Documents accompanied by a certificate of acknowledgment executed in the
manner provided by law by a notary public or other officer authorized by law to
take acknowledgments.
(9) Commercial paper and related
documents. Commercial paper, signatures thereon, and
documents relating thereto to the extent provided by general commercial law.
(10) Presumptions under Acts of
Congress. Any signature, document, or other matter
declared by Act of Congress to be presumptively or prima facie genuine or
authentic.
(11) Certified Domestic Records of
Regularly Conducted Activity.—The original or a duplicate
of a domestic record of regularly conducted activity that would be admissible
under Rule 803(6) if accompanied by a written declaration of its custodian
or other qualified person, in a manner complying with any Act of Congress or
rule prescribed by the Supreme Court pursuant to statutory authority,
certifying that the record—
(A) was made at or near the time of the
occurrence of the matters set forth by, or from information transmitted by, a
person with knowledge of those matters;
(B) was kept in the course of the regularly
conducted activity; and
(C) was made by the regularly conducted activity as a
regular practice.
A party intending to offer a record
into evidence under this paragraph must
provide written notice of that intention to all adverse parties, and must make
the record and declaration available for inspection sufficiently in advance of
their offer into evidence to provide an adverse party with a fair opportunity
to challenge them.
(12) Certified Foreign Records of
Regularly Conducted Activity.—In a civil case, the original or a duplicate of a foreign record of regularly conducted
activity that would be admissible under Rule 803(6) if accompanied by a written
declaration by its custodian or other qualified person certifying that the
record—
(A) was made at or near the time of the
occurrence of the matters set forth by, or from information transmitted by, a
person with knowledge of those matters;
(B) was kept in the course of the regularly
conducted activity; and
(C) was made by the regularly conducted
activity as a regular practice.
The declaration must be signed in a
manner that, if falsely made, would subject the maker to criminal penalty under
the laws of the country where the declaration is signed. A party intending to
offer a record into evidence
under this paragraph
must provide written notice of that intention to all adverse parties, and must
make the record and declaration available for inspection sufficiently in advance
of their offer into evidence to provide an adverse party with a fair
opportunity to challenge them.
Rule 903.
Subscribing Witness' Testimony Unnecessary
The
testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction
whose laws govern the validity of the writing.
Fed. R. Evid. 901 ‑ 903 (as in effect on Aug. 1, 2011)
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[as in effect
on Aug. 1, 2011]
Rule 1001. Definitions
For purposes of this article the following definitions
are applicable:
(1) Writings and recordings.
"Writings" and "recordings" consist of letters,
words, or numbers, or their equivalent, set down by handwriting, typewriting,
printing, photostating, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation.
(2) Photographs.
"Photographs" include still photographs, X‑ray films,
video tapes, and motion pictures.
(3) Original.
An "original" of a writing or recording is the writing or
recording itself or any counterpart intended to have the same effect by a
person executing or issuing it. An "original"
of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar
device, any printout or other output readable by sight, shown to reflect the
data accurately, is an "original".
(4) Duplicate.
A "duplicate" is a counterpart produced by the same impression
as the original, or from the same matrix, or by means of photography, including
enlargements and miniatures, or by mechanical or electronic re‑recording,
or by chemical reproduction, or by other equivalent techniques which accurately
reproduces the original.
Rule 1002. Requirement of Original
To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required, except as otherwise
provided in these rules or by Act of Congress.
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original
unless (1) a genuine question is raised as to the authenticity of the original
or (2) in the circumstances it would be unfair to admit the duplicate in
lieu of the original.
Rule 1004. Admissibility of Other Evidence of
Contents
The original is
not required,
and other evidence of
the contents of a writing, recording, or photograph is admissible if—
(1) Originals lost
or destroyed. All originals are lost or have been destroyed, unless the proponent
lost or destroyed them in bad faith; or
(2) Original not
obtainable. No original can be obtained by any available judicial process or
procedure; or
(3) Original in
possession of opponent. At a time when an original was under the control of the party against whom
offered, that party was put on notice, by the pleadings or otherwise, that the
contents would be a subject of proof at the hearing, and that party does not
produce the original at the hearing; or
(4) Collateral
matters.
The writing, recording, or photograph is not closely related to a controlling issue.
Rule 1005. Public Records
The contents of an official record, or of
a document authorized to be recorded or filed and actually recorded or filed,
including data compilations in any form, if otherwise admissible,
may be proved by copy, certified as correct in accordance with rule 902
or testified to be correct by a witness who has compared it with the original. If a copy
which complies with the foregoing cannot be obtained by the exercise of reasonable
diligence, then other evidence of the contents may be given.
Rule 1006. Summaries
The contents of voluminous writings,
recordings, or photographs which cannot conveniently
be examined in court may be presented in the form of a chart, summary, or
calculation. The originals,
or duplicates, shall be made available for examination
or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in
court.
Rule 1007. Testimony or Written Admission of Party
Contents of writings,
recordings, or photographs may be proved by the
testimony or deposition of the party against whom offered or by that party's written admission, without
accounting for the nonproduction of the original.
Fed. R. Evid. 1001 ‑ 1007 (as in effect on Aug. 1, 2011)
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D.C. Stat. § 5-716 Survivor benefits and annuities
[as in effect
on Aug. 1, 2011]
(a) If any member:
(1) dies
in the performance of duty and the Mayor determines that:
(A) the
member's death was the sole and direct result of a personal injury sustained
while performing such duty;
(B) his
death was not caused by his willful misconduct or by his intention to bring
about his own death; and
(C) intoxication
of the member was not the proximate cause of his death; and
(2) is
survived by a survivor, parent, or sibling, a lump-sum payment of $50,000 shall
be made to his survivor if the survivor received more than one half of his
support from such member, or if such member is not survived by any survivor
(including a survivor who did not receive more than one half of his support
from such member), to his parent or sibling if the parent or sibling received
more than one half of his support from such member. If such member is survived by more than 1 survivor
entitled to receive such payment, each such survivor shall be entitled to
receive an equal share of such payment; or if such member leaves no survivor
and more than 1 parent or sibling who is entitled to receive such payment,
each such parent or sibling shall be entitled to receive an equal share of such
payment.
(a-1) In the
case of any member who dies in the performance of duty after
(a‑2) The determination of the Mayor authorized by subsection (a) of this
section shall be subject to review and final determination by the District
of Columbia Retirement Board.
(b) In case of the death of any member before retirement,
of any former member after retirement, or of any member entitled to receive an
annuity under § 5‑717 (regardless of whether such member is
receiving such annuity at the time of death), leaving a widow or widower, such
widow or widower shall be entitled to receive an annuity in the greater amount
of:
(1) Forty
per centum of such member's average pay at the time of death, or 40%:
(A) Of
the adjusted average pay of such former member in the case of a member who was
an officer or member of the United States Park Police force, the United States
Secret Service Uniformed Division, or the United States Secret Service
Division; or
(B) Of
the adjusted average pay of such former member in the case of a member who was
an officer or member of the Metropolitan Police force or the Fire Department of
the District of Columbia; or
(2) Forty
per centum of the corresponding salary for step 6 of salary class 1
of the District of Columbia Police and Firemen's Salary Act salary schedule
currently in effect at the time of such member or former member's death, or,
for a member who was an officer or member of the United States Secret Service
Uniformed Division, or the United States Secret Service Division,
40 percent of the corresponding salary for step 5 of the Officer rank
in section 10203 of title 5, United States Code; provided, that such
annuity shall not exceed the current rate of compensation of the position
occupied by such member at the time of death, or by such former member
immediately prior to retirement.
(c) Each surviving child or student child of any member
who dies before retirement, of any former member who dies after retirement, or
of any member entitled to receive an annuity under § 5‑717
(regardless of whether such member is receiving such annuity at the time of
death), shall be entitled to receive an annuity equal to the smallest of:
(1) In
the case of a member or former member who is survived by a wife or husband:
(A) Sixty
per centum of:
(i) The member's average pay at the time of death; or
(ii) The adjusted average pay of the former member in the case of a member
who was an officer or member of the United States Park Police force, the United
States Secret Service Uniformed Division, or the United States Secret Service
Division, or the adjusted average pay of the former member in the case of a
member who was an officer or member of the Metropolitan Police force or the
Fire Department of the District of Columbia, divided by the number of eligible
children;
(B) $2,918.00,
to be increased on an annual basis by the cost of living adjustment determined
pursuant to § 5‑718; or
(C) $8,754.00,
divided by the number of eligible children, to be increased on an annual basis
by the cost of living adjustment determined pursuant to § 5‑718,
divided by the number of eligible children; and
(2) In
the case of a member or former member who is not survived by a wife or husband:
(A) 75% of
the member's average pay at the time of death, divided by the number of
eligible children;
(B) In
the case of a member who was an officer or member of the United States Park
Police Force, the United States Secret Service Uniformed Division, or the
United States Secret Service Division, 75% of the adjusted average pay of
the former member, divided by the number of eligible children; or
(C) In
the case of a member who was an officer or member of the Metropolitan Police
force or the Fire Department of the
(d) Each widow or widower who, on the effective date of
the Policemen and Firemen's Retirement and Disability Act Amendments of 1970,
was receiving relief or annuity computed in accordance with the provisions of this section shall be entitled to receive an
annuity in the greater amount of:
(1) $3,144; or
(2) thirty-five per centum of the basis upon which such relief or
annuity was computed.
Each
child who, on
(e)(1) The annuity of the widow or widower under this section shall begin on the day after the
date on which the member or former member dies, and such annuity or any right
thereto shall terminate upon the survivor's death or remarriage before
age 60; provided, that any annuity terminated by remarriage may be
restored if such remarriage is later terminated by death, annulment, or
divorce.
(2) The annuity of any child under this section shall begin on the day after the date on which the
member or former member dies, and the annuity shall terminate upon whichever of
the following occurs first:
(A) The
child becomes 18 years of age or, if over 18 years of age and
incapable of self-support, becomes capable of self-support;
(B) The
child marries; or
(C) The
child dies.
(3)(A) The
annuity of any student child under this section
shall begin on the day after the date on which the member or former member
dies, and the annuity shall terminate upon whichever of the following occurs
first:
(i) The student child marries;
(ii) The
student child ceases to be a student;
(iii) The
student child reaches 22 years of age; or
(iv) The
student child dies.
(B) For
the purposes of this paragraph, a student child
whose 22nd birthday falls on or after July 1st shall not be
considered to have reached 22 years of age until the June 30th
following the student child's actual 22nd birthday.
(4) If
the annuity of a child under paragraph (2) or paragraph (3) of this subsection
terminates because of marriage and such marriage ends, the annuity shall resume
on the first day of the month in which it ends, but only if the individual is
not otherwise ineligible for the annuity.
(5) Notwithstanding
the provisions of paragraphs (2) and (3) of this subsection, no annuity
of a child or student of a widow or widower under subsection (a-1)
of this section shall be paid while an
annuity benefit to a widow or widower under subsection (a-1) of this section
is being paid.
(f) Any member retiring under § 5‑709, § 5‑710,
or § 5‑712, may at the time of such retirement, and any member
entitled to receive an annuity under § 5‑717 may at the time such
annuity commences, elect to receive a reduced annuity in lieu of full annuity,
and designate in writing the person to receive an increased annuity after such
member's death; provided, that the person so designated be the surviving spouse
or child of such member. Whenever such
an election is made, the annuity of the designee shall be increased by an
amount equal to the amount by which the annuity of such member is reduced. The annuity payable to the member making such
election shall be reduced by 10% of the annuity computed as provided in
§ 5‑709, § 5‑710, or § 5‑712. Such increase in annuity payable to the
designee shall be reduced by 5% for each full 5 years the designee is
younger than the member, but such total reduction shall not exceed 40%. The increase in annuity payable to the
designee pursuant to this subsection shall be paid in addition to the annuity
provided for such designee pursuant to subsection (b)
or subsection (c) of this section and shall be subject to the same
limitations as to duration and other conditions as the annuity paid pursuant to
subsections (b), (c), and (e) of this
section. If, at any time after such
former member's election, the designee dies, and is survived by such former
member, the annuity payable to such former member shall be increased to the
amount computed as provided in § 5‑709, § 5‑710, § 5‑712,
or § 5‑717, as the case may be.
D.C. Stat. § 5‑716
(as in effect on Aug. 1, 2011)
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