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.
1201 [§ 3796] Payment of death benefits
1202 [§ 3796a] Limitation on benefits
1205 [§ 3796c] Administrative provisions
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]
42 U.S.C. § 3796 Sec. 1201
Payment of death benefits
(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 on benefits
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 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 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.
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]
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 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.
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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.
Authority
Public Safety Officers'
Benefits Act of 1976 (42 U.S.C. ch. 46,
subch. 12); Public Law 107‑37;
§ 32.0 Scope of part.
Subpart A - General
Provisions
§ 32.1 Scope of subpart.
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.
§ 32.3 Definitions.
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)
section 5 thereof (rule of construction and
severability)), as applicable 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); 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. 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 sections 611 and 612 of the USA PATRIOT Act (all three of which relate to
payment of benefits, described under subpart 1 of such part L, in connection
with terrorist attacks).
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 by a public safety officer—
(1) In the course of actually
responding to a fire, rescue, or police
emergency; or
(2) Between home and work (at a
situs authorized or required by the public agency he serves)—
(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.
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.
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.
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), or the determination described
in the Act, at 42 U.S.C. 3796(c).
Director means the Director of BJA.
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, notwithstanding any other
provision of law, a spouse (or purported spouse) of a living 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, 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) A beneficiary
described in the Act, at 42 U.S.C. 3796(a),
with respect to a claim under subpart B of this part; or
(2) A beneficiary
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.
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.
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-materials
emergency 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-materials
emergency 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-materials
emergency 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
myocardial infarction or sudden cardiac arrest.
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) 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 any occupational disease,
or any condition of the body caused or occasioned by stress
or strain.
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 – Except with respect to voluntary intoxication at the time
of death or catastrophic injury, 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) Corrections or detention
(in a prison or other detention or confinement facility) of individuals who are
alleged or found to have violated such laws; 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 law
enforcement,
fire protection, rescue activity, or the provision of emergency medical services, 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 training
programs) 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 be so obligated or authorized (or, at a minimum, does not
deny (or has not denied) it to be such); or
(ii) Whose primary function is not law enforcement, fire protection, rescue activity, or the provision of emergency medical services, 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 be so obligated or authorized (or, at a minimum, does not
deny (or has not denied) it to be such); and
(B)
It is performed (as applicable) in the course of law enforcement, providing fire protection, engaging in rescue activity, providing emergency medical services, or training for one of the
foregoing, and such
agency
(or the relevant government) legally recognizes it as such (or, at a minimum,
does not deny (or has not denied) it to be 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 as such (or, at a minimum, does not deny (or has not denied) it to be
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 as such (or,
at a minimum, does not deny (or has not denied) it to be 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 as such (or, at a
minimum, does not deny (or has not denied) it to be 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 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).
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) Not alive at the time
of his birth.
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 death or disability benefits from such government on
the same basis as an employee of that government (within the meaning of paragraph (1) of this definition)
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.
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 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, heart attack, or stroke if—
(1)
The factor alone was sufficient to have caused the death, injury, disability, heart attack, or stroke; or
(2)
No other factor (or combination of factors) contributed to the death, injury, disability, 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:
(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 a disturbance of mental or
physical faculties resulting from their introduction into the body of a public safety officer,
as evidenced by the presence therein, as of the injury date—
(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.
(a) 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 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.
§ 32.5 Evidence.
(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 401
(relevant evidence), 402 (admissibility), 602 to 604 (witnesses), 701 to 704
(testimony), 901 to 903 (authentication), and 1001 to 1008 (contents of writings, records, and
photographs) of the Federal Rules of Evidence shall apply to all filings, hearings, and other proceedings or matters.
(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; or
(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.
(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 (as
applicable)—
(i) A public safety officer of the kind
described in the certification;
(ii) Employed by
the agency;
(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)); and
(iv) Killed (with respect to a claim under subpart B of
this part), or totally
and permanently disabled (with respect to a claim under subpart C
of this part), as a direct and proximate result of a line of duty injury; and
(2) That there are no eligible
payees other than those identified in the certification.
§ 32.6 Payment and repayment.
(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.
(b) No payment shall be made,
save—
(1)
To (or on behalf of) a living
payee; and
(2)
Pursuant to—
(i) A claim
filed by (or on behalf of) such payee; 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 or inaccurate statements,
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
§ 32.11 Scope of subpart.
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 the receipt or denial of any benefits
described in § 32.15(a)(1)(i) (or the receipt of the certification described
in § 32.15(a)(1)(ii)).
(b) A claimant may file with his claim such
supporting evidence and legal arguments as he may wish to
provide.
§ 32.13 Definitions.
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), 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) – not having taken place as of such
date of death – did not take place when scheduled, unless preponderant evidence demonstrates that—
(i) The
alteration in schedule was 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 individual) 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), 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) – not having taken place as of such date
of death – did not take place when scheduled, unless preponderant evidence demonstrates that—
(i) The
alteration in schedule was 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.
Circumstances other than engagement
or participation means—
(1) An event
or events; or
(2) An intentional risky behavior
or intentional risky behaviors.
Commonly accepted means
generally agreed upon within the medical profession.
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 circumstances other than any engagement or participation described in the Act, at 42 U.S.C. 3796(k)(1), considered in
combination (as one circumstance) or alone, were a substantial factor
in bringing the heart attack or stroke about.
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 – A public safety officer is engaged in a situation 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-materials emergency;
(iv) Performing rescue
activity;
(v) Providing emergency medical services; or
(vi) Performing disaster
relief activity; or
(vii) Otherwise responding
to a fire, rescue, or police emergency; and
(2) The public agency he serves (or the relevant
government) legally recognizes him to be in such course (or, at a minimum, does
not deny (or has not denied) him so to be).
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.
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 in
effect.
Nonroutine strenuous physical activity – Except as excluded by the Act, at 42 U.S.C. 3796(l), nonroutine strenuous physical activity means line of duty activity that—
(1)
Is not performed as a matter of routine; and
(2) 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 – Except as excluded by the Act, at 42 U.S.C. 3796(l),
nonroutine stressful physical activity means line of duty activity that—
(1)
Is not performed as a matter of routine;
(2) Entails non-negligible
physical exertion; and
(3) 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 if it is a formal part of an official training program
whose purpose is to train public safety officers in, prepare them for, or
improve their skills in, particular activity or
actions encompassed within their respective lines of duty.
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 ‑child, 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; or
(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.
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.
§ 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 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 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 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 paragraph (a)(1) 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 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.
§ 32.16 Payment.
(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.
§ 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
§ 32.21 Scope of subpart.
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 the receipt or denial of any benefits
described in § 32.25(a)(1)(i) (or receipt of the certification described in § 32.25(a)(1)(ii)).
(b) A claimant may file with his claim such
supporting evidence and legal arguments as he may wish to
provide.
§ 32.23 Definitions.
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.
§ 32.26 Payment.
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) 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
§ 32.31 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 evidence and legal arguments as he may wish to
provide.
§ 32.33 Definitions.
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.
§ 32.35 Disqualification.
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
§ 32.41 Scope of subpart.
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.
§ 32.42 Time for filing request for determination.
(a) 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 evidence
and legal arguments as he may wish to provide.
§ 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,
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 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, 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 a claim 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.
§ 32.45 Hearings.
(a) 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, 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.
§ 32.46 Director appeal.
(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
§ 32.51 Scope of subpart.
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 evidence and legal arguments as he may
wish to provide.
§ 32.53 Review.
(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.
§ 32.55 Judicial appeal.
(a) A claimant seeking relief
from the denial of his claim may appeal judicially under 28 U.S.C. 1491(a) (claims against the
(b)
Consistent with § 32.8, any approval or denial described in § 32.54(a) shall constitute the final agency determination.
*************************************
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
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
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
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. 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 Department of Justice
Appropriations Act, 1987 (reference)
Pub. L. 101‑647,
§ 1301 Crime Control Act
of 1990
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
of 2001
Pub. L. 108‑182 Hometown Heroes
Survivors Benefits Act of 2003 (reference)
Pub. L. 109‑162,
§ 1164 Department of
Justice Appropriations Authorization Act, 2006
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
Fed R. Evid. 1008 Functions of Court and
Jury
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
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
*************************************
1 U.S.C. § 7 Definition of
"marriage" and "spouse"
[as in effect on
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
*************************************
5 U.S.C. § 504 Costs
and fees of parties
[as in effect on
. . . .
(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
*************************************
5 U.S.C. § 8101 Definitions
[as in effect on
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
*************************************
5 U.S.C. § 8191 Determination
of eligibility
[as in effect on
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
*************************************
[as in effect on
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
(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
*************************************
Chapter 28 Higher
Education Resources and Student Assistance
Subchapter IV Student
Assistance
[as
in effect on
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
For the purpose of this title, 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
*************************************
20 U.S.C. § 1087nn Determination
of expected family contribution; data elements
[as in effect on
(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
*************************************
20 U.S.C. § 1091 Student
eligibility
[as in effect on
(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, except that the
provisions of this subparagraph shall not
apply to a student from the Republic of the
(5) be a citizen or national of the
United States, a permanent resident of the United States, 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, a citizen of any
one of the Freely Associated States; and
(6) if the student has
been convicted of, or has pled 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 title 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) 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—
(A) filed an application with the Pell Grant processor for such
institution for such enrollment period, and
(B) 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.
(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)—
(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 (h)(4)(A)(i) of this section, was required
to provide a reasonable opportunity to submit documentation, or
(3) because the
institution, under subsection (h)(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)
Assistance under subparts 1 and 3 of part A, and part C.
Notwithstanding any other provision of law, a student shall be eligible
until September 30, 2004, for assistance under subparts 1 and 3
of part A of this subchapter, and part C of subchapter 1 of
chapter 34 of title 42, if the student is otherwise qualified and—
(1) is a citizen of any one of the
Freely Associated States and attends an institution of higher education in a
State or a public or nonprofit private institution of higher education in the
Freely Associated States; or
(2) meets the requirements of subsection (a)(5) of this section and attends a public or nonprofit
private institution of higher education in any one of the Freely Associated
States.
(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 telecommunications.
(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 in whole or in part through telecommunications and leads to a
recognized certificate, or a recognized associate, baccalaureate, or graduate
degree, conferred by such institution, shall not be considered to be enrolled
in correspondence courses.
(B) Requirement.
Subparagraph (A) shall not apply
to an institution or school described in
section 2302(3)(C) of this
title.
(2) Restriction or 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 telecommunications instruction results
in a substantially reduced cost of attendance to such student.
(3) Special rule.
For award years prior to July 23, 1992, the Secretary shall not
take any compliance, disallowance, penalty, or other action 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.
(4) "Telecommunications",
defined. For the purposes of this
subsection, the term "telecommunications" means the use of
television, audio, or computer transmission, including open broadcast, closed
circuit, cable, microwave, or satellite, audio conferencing, computer
conferencing, or video cassettes or discs, except that such term does not
include a course that is delivered using video cassette or disc recordings at
such institution and that is not delivered in person to other students of that
institution.
(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 1113 of Public Law 97‑252, 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) Verification of income data.
(1) Confirmation with
IRS. The Secretary of Education, in cooperation
with the Secretary of the Treasury, is authorized to confirm with the Internal
Revenue Service the information specified in section 6103(l)(13) of
title 26 reported by applicants (including parents) under this subchapter and part C of subchapter I of chapter
34 of title 42 on their Federal income tax
returns for the purpose of verifying the information reported by applicants on
student financial aid applications.
(2) Notification.
The Secretary shall establish procedures under which an applicant is
notified that the Internal Revenue Service will disclose to the Secretary tax
return information as authorized under section 6103(l)(13) of title 26.
(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; or
(B) 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.
20 U.S.C. § 1091 (as in effect on
*************************************
21 U.S.C. § 802 Definitions
[as in effect on
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
*************************************
21 U.S.C. § 812 Schedules of controlled substances
[as in effect on
(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
*************************************
21 U.S.C. § 862 Denial of
Federal benefits to drug traffickers and possessors
[as in effect on
(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
*************************************
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), and
(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.
(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—
(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 claiming qualifying child.
(A) In general. Except as
provided in subparagraph (B), if (but for this paragraph) an individual may be and is 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.
(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. § 1491 Claims against
[as in effect on
(a)(1) The United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United
States founded either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or implied contract
with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.
For the purpose of this paragraph, an express or implied contract with
the Army and Air Force Exchange Service, Navy Exchanges, Marine Corps
Exchanges, Coast Guard Exchanges, or Exchange Councils of the National
Aeronautics and Space Administration shall be considered an express or implied
contract with the
(2) To provide an entire remedy and to complete
the relief afforded by the judgment, the court may, as an incident of and
collateral to any such judgment, issue orders directing restoration to office
or position, placement in appropriate duty or retirement status, and correction
of applicable records, and such orders may be issued to any appropriate
official of the United States. In any
case within its jurisdiction, the court shall have the power to remand
appropriate matters to any administrative or executive body or official with
such direction as it may deem proper and just.
The Court of Federal Claims shall have jurisdiction to render judgment
upon any claim by or against, or dispute with, a contractor arising under
section 10(a)(1) of the Contract Disputes Act of
1978, including a dispute concerning termination of a contract, rights in
tangible or intangible property, compliance with cost accounting standards, and
other nonmonetary disputes on which a decision of the
contracting officer has been issued under section 6 of that Act.
. . . .
28 U.S.C. § 1491 (as in effect on
*************************************
38 U.S.C. § 3532 Computation of educational assistance allowance
[as in effect on
(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
*************************************
42 U.S.C. § 423 Disability
insurance benefit payments
[as in effect on
(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
*************************************
42 U.S.C. § 3782 Rules, regulations, and procedures; consultations and
establishment
[as in effect on
(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
*************************************
42 U.S.C. § 3787 Subpoena power; employment of hearing officers; authority to hold
hearings
[as in effect on
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
*************************************
42 U.S.C. § 3788 Personnel and administrative authority
[as in effect on
. . .
(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
*************************************
42 U.S.C. § 3791 General provisions
[as in effect on
(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 4(e) of the Indian
Self-Determination and Education Assistance Act
(25 U.S.C. § 450b(e));
. . . .
42 U.S.C. § 3791 (as in effect on
*************************************
42 U.S.C. § 3793 Authorization of appropriations
[as in effect on
(a)
. . .
(4) There are
authorized to be appropriated for each fiscal year such sums as may be
necessary to carry out part L of this
title [chapter].
. . .
42 U.S.C. § 3793 (as in effect on
*************************************
42 U.S.C. The Public Health and Welfare
Chapter 68 Disaster Relief
[as in effect on
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
(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, § 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 Appropriations Act, 1987, Pub. L. No. 99‑500, (§ 101(b)),
100 Stat. 1783, 1783‑56
(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
*************************************
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 "
(2) by striking "
(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 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
*************************************
Mychal Judge Police and Fire Chaplains Public
Safety Officers' Benefit Act of 2002, Pub. L. No. 107‑196, § 2,
116 Stat. 719, 719
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
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
*************************************
Fed. R. Evid. 401 Definition of "Relevant Evidence"
[as in effect on
"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
*************************************
Fed. R. Evid. 402 Relevant Evidence Generally Admissible; Irrelevant
Evidence Inadmissible
[as in effect on
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
*************************************
[as in effect on
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.
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.
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
*************************************
[as in effect on
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
*************************************
[as in effect on
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.
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
*************************************
[as in effect on
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—
(4) Collateral matters. The writing, recording,
or photograph is not closely related to a
controlling issue.
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
Rule 1008. Functions of Court and Jury
Fed. R. Evid. 1001 ‑ 1008 (as in effect on
*************************************
D.C. Stat. § 5-716 Survivor benefits
and annuities
[as in effect on
(1) dies in the
performance of duty and the Mayor determines that:
(C) intoxication
of the member was not the proximate cause of his death; and
(a-1) In the case of any member who dies in the performance of duty after
(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%:
(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:
(i) The member's average pay at the time of death; or
(2) In the case of a member or former
member who is not survived by a wife or husband:
(2) thirty-five per centum of the basis upon which
such relief or annuity was computed.
(e)(1) The annuity of the widow or widower under this
section shall begin on the 1st day of the month in 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 1st day of
the month in which the member or former member dies, and the annuity shall
terminate upon whichever of the following occurs first:
(3)(A) The annuity of any student child under this section shall begin on the 1st day
of the month in 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
(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