Hearing of the Senate Judiciary Committee - Justice Denied? Implementation of the Hometown Heroes Survivors Benefits Act

Interview

BREAK IN TRANSCRIPT

SEN. SCHUMER: Well, thank you, Chairman Leahy. And I want to thank you and Senator Specter, Senator Cornyn, for holding this very important hearing today. I also want to thank all three of our witnesses. I will introduce Ms. Falkouski, who I know, but I want to thank Ms. Tilton and Ms. Schwantes for their really moving powerful testimony. I hope it melts some of the harder hearts in the Justice Department.

And now it's my honor to introduce my constituent, Susan Falkouski. She is the widow of assistant chief Michael Falkouski of the Rensselaer Fire Department. And Chief Falkouski suffered a stroke and died in the line of duty after responding to a fire in the middle of a blizzard in 2005.

Over the past year I've gotten to know Ms. Falkouski and with her case, and I know that this is exactly the kind of tragic case that I was envisioning when I cosponsored the bill that Senator Leahy introduced, when I voted in favor of it, and pushed for it to become law.

Yet somehow the Department of Justice has twisted congressional intent and denied the majority of the heart attack and stroke victims that it has ruled on. In fact, at the time I first became involved, not in the bill but in what had happened, they had denied 34 out of 34 cases, including two cases in the Capitol Region, one of Chief Falkouski, as well as the case of Chief Kevin Shea (sp) of the Elsmere Fire Department, which is also in the capital region near Albany, New York State.

Now my colleagues, when you hear her story, I think you'll agree with me that Chief Falkouski's case was precisely the kind of situation that we attempted to address in 2003, and that the Department of Justice is not acting in the manner we intended. Day in and day out, our firefighters, police officers, put their lives on the line to take care of us, and we have to do the same for their loved ones. Congress passed this law to give families of our fallen heroes a helping hand, not show them the back of it. In a sense, the way the Justice Department has administered this law, for many families it's worse than having no law at all. And it's just so wrong and so unfair.

When emergency workers' lives are interrupted by a call, and suddenly they go racing to a hazardous condition, medical science will tell you, it rockets the heart rate and stress level on the human body. It doesn't matter whether they're in a burning building, chasing a criminal, responding to a scene, or monitoring the situation from the street, these brave men and women put tremendous stress on their bodies, on their lives, and their lives on the line, when they answer that call.

Responding to an emergency, working at the scene, and the immediate period afterwards, is inherently nonroutine. That is not what human beings normally do in the course of a day. Most of us never experience that kind of stress in a year, two years, three years. And those kinds of situations we know place the human body under irregularly high stress levels.

And I'm glad to see that in Dr. Herraiz' testimony he agrees with this, and has issued, quote, "A binding direction to this staff regarding these situations." That is a breakthrough, and I hope one that will not be an empty breakthrough, but one that will portend a better solution for Ms. Falkouski, Mr. Shea, and the others who have been denied unfairly.

Firefighters like Ms. Falkouski's husband don't sit on their hands when our families need help. The federal government should not sit on its hands when these families need help.

I hope stories like those of Ms. Falkouski will continue to open the eyes of the Justice Department so it can finally understand how important the 2003 Hometown Heroes Act benefits are to families like the Falkouski family. Again, I want to thank Ms. Falkouski for being here. I want to thank Chairman Leahy for introducing this bill and holding this hearing.

And one other note of thanks: sitting behind Ms. Falkouski is Steve Mann (sp), who has worked in my capitol office for nine years. Not only is he one of the best workers I've ever had in my 33 years as an elected official, and not only are we, the people of New York, blessed to have him, but he's also an assistant chief, knew Chief Falkouski, and in fact, took Chief Falkouski's spot after he passed away in the Rensselaer Fire Department.

Ms. Falkouski, thank you for being here.

SEN. LEAHY: Thank you, Ms. Falkouski, and please go ahead.

MS. FALKOUSKI: Good afternoon. I am here today to speak to you about my husband, Michael Falkouski.

Michael is a wonderful man, a terrific husband. We were married for 38 years, and we raised three children.

Throughout Mike's life he was driven to serve his community. He coached Little League when our children were little. He rode the volunteer ambulance. He was an elected city councilman for 16 years.

But most of all he was very proud of his service as a volunteer fire fighter for 37 years. The Rensselaer Fire Department is made up of a combination of volunteers and career fire fighters. In 1993 Mike was appointed to the volunteer position of deputy fire coordinator for Rensselaer County where he served as a liaison between the Rensselaer City fire department and the neighboring mutual aid department.

In 1998, the Rensselaer City board of public safety appointed Mike to be the second assistant chief of the Rensselaer Fire Department. This made him the third highest ranking member of the department, and made him responsible for all of the fire fighters under him at emergency scenes.

He worked very hard at this job, and took the responsibility very seriously. In Rensselaer the fire chiefs don't work shifts. They are always on call, and they respond from their homes to emergency calls. Mike would frequently be called away from family events, dinners or in the middle of the night, to respond to a call.

In the early morning hours of Sunday, January 23, 2005, the capital region of New York was in the midst of a major winter storm, which would dump more than 20 inches of snow on the area. At 2:33 a.m. with the wind chill temperature at minus 11 degrees the Rensselaer Fire Department received a call for an explosion in a quiet residential area. The page alarm and call woke Mike up from a sound sleep, and he quickly dressed and headed out into the blizzard.

Mike's pickup truck was covered with more than a foot of snow, and he rushed to clean it off as quickly as he possibly could so that he could head to the call. Other fire fighters have told me how physically exhausting this was to them.

While Mike was still cleaning his car the first fire truck arrived at the scene. The firefighter driving the apparatus was Mike Mann, who was a life long friend of my husband.

Firefighter Mann reported a heavy fire condition in a garage with a severely burned victim in need of treatment, and called for a second alarm for more help. As my husband made the treacherous response to the blizzard, he heard reports of a series of small explosions in the fire building as well as frozen fire hydrants.

Mike arrived a block away from the fire scene and parked his truck. He got out of his truck and was finishing getting his gear on when an aneurysm ruptured in his brain and he fell unconscious. He was discovered by a civilian, and at 2:45 -- 2:53 a.m., I'm sorry, it was reported that he was down. He began receiving CPR and AED treatment by a group of firefighters and EMTs, and was transported to Albany Memorial Hospital.

I was still sleeping when our dear friend, retired fire chief Phil Smith called me and told me that Mike had been taken to the hospital, and that he was on his way to pick me up. Despite the best efforts of the firefighters on the scene and the doctors at the hospital, the damage was too great. And as Mike wished, he was kept alive for several hours in hopes that his organs could be harvested. My husband died later that day.

In all the years that Mike served as a firefighter, he told me not to worry if anything ever happened to him, I'd be taken care of. One of the firefighters told me about how Congress had added heart attack and stroke to the PSOB program, and that I would likely qualify. Sadly, both were wrong.

In March I received a letter from Hope Janke (sp) at the Department of Justice informing me that they had denied my claim for death benefits under PSOB. The letter stated that the act of responding at any hour of the day or night to the scene of a fire event is a routine engagement. The letter also said that below zero weather, high winds, 20 inches of snow, had no significance; that they failed to appreciate the added stress the report of heavy fire, explosions, burn victims, low manpower and frozen hydrants would have on a chief as he made his way to the scene. He knew he was assuming responsibility for all of these tasks.

I must tell you, I am not only offended but angry at this letter. I feel that the Department of Justice trivialized my husband's service. And it seems to me it was written by someone who has no idea of what it's like to respond to an emergency.

In fact I think it is inherently nonroutine for any human being to race towards a dangerous situation at a moment's notice. The firefighters I have spoken to agree with me, and several of the ones who were there that night tell me that fire in particular was the most nonroutine fire they had ever been to.

I want to finish by saying that I hope you can change this thinking in the Department of Justice, if not for me, for all of the thousands of firefighters and their families out there who continue to respond at a moment's notice to dangerous situations.

I am sure that most of them think, like Mike and I did, that if tragedy ever came to them, their family would be taken care of. If they are not, what kind of message does that send? I know that it's already hard enough to get people to volunteer. Mike used to talk about how hard it is to recruit and keep people who are willing to devote the time and accept the danger. If the government considers this kind of service to be routine, and denies benefits in circumstances like this I really wonder how we will convince people to keep doing it.

This is not something I would ever do in my life, come down here and speak to you. But I feel it is that important that I have done so.

Thank you.

SEN. LEAHY: Thank you. I'm going to put into the record the letter from Chuck Canterbury, the president of the Fraternal Order of Police, who strongly support this. Chief Steven Westermann, the International Association of Fire Chiefs, a letter supports this, but also two policy memos issued by the Bureau of Justice assistant director Domingo Herraiz on October 2 this week, which I think are a step in the right direction.

Senator Schumer and I have already discussed this. We're not going to ask questions. There is nothing to be added to what you said.

We will stand in recess for two minutes while the panels change, and give us a chance to come down and thank you personally.

(Recess.)

SEN. SCHUMER: (In progress) -- since the BJA. Before his appointment Mr. Herraiz served on the governor's cabinet as a director of the Ohio Office of Criminal Justice Services.

Prior to OCJS Mr. Herraiz was the executive director of the Ohio Crime Prevention Association, the largest state crime prevention association in the country; and also served as the executive committee chair of the Crime Prevention Coalition of America.

The entire statement of Mr. Herraiz will be read into the record, and Mr. Herraiz, you may proceed. If you can keep your statement within five minutes, that'll be fine, and we'll then ask you questions.

MR. HERRAIZ: Chairman Schumer and distinguished members of the committee, thank you for the opportunity to appear today on behalf of the Department of Justice Office of Justice Programs.

I'm Domingo Herraiz, the director of the Bureau of Justice Assistance. I understand the serious issues surrounding Hometown Heroes claims. And I first want to underscore our commitment to the law enforcement, firefighters --

SEN. SCHUMER: If you could just pull the microphone up a little so our transcriber can hear you. Thank you, Mr. Herriaz.

MR. HERRAIZ: Thank you. I want to underscore our commitment to the law enforcement, firefighter, and emergency responders communities. As the son of a firefighter and the nephew of a police officer I am concerned and committed to do everything I can do to make certain the survivors of our fallen heroes receive the benefits that they deserve.

I realize that there are several major concerns regarding hometown heroes' claims. The delays and backlogs of hometown heroes claims; the interpretation of the term, nonroutine; our request for medical records from survivors; the ratio of denials to approvals in the first year; and the outcome of specific cases.

On December 15th, 2003, the Hometown Heroes Act expanded the PSOB program to allow certain eligible heart attacks and strokes to be considered line-of-duty deaths. Afterwards, we undertook a complete revision of the regulations which, while needed, took longer than we expected. The resulting delays were unfortunate, and a great concern to the public safety community, members of Congress, and especially the survivors who have lost loved ones.

To make the hometown heroes' claims process run more smoothly we have undertaken many changes. PSOB claims can now be submitted via the Internet. A new PSOB case management system is now online.

This system is designed to generate monthly updates to survivors so they know the exact status of their claims. Benefits specialists, claims contractors, attorneys, hearing officers and forensic pathologists have all been added to expedite the review process.

We have partnered with the National Fallen Firefighters Foundation and the concerns of police survivors to develop what's titled the local assistance state teams, the LAST teams, to work directly with survivors and agencies on their PSOB claims. The department will issue the Attorney General's Guide to Hometown Heroes to provide step-by-step guidance on the application review process.

And perhaps most importantly, beginning this past August, each week the PSOB office identifies the 12 oldest and most complete hometown heroes cases, and drafts determinations for general counsel review.

Having designed this strategy based on the insight from our first year of processing these claims, these changes will allow us to have 144 hometown heroes cases in legal or medical review in just three months. We are fully committed to this 12-in-a-week strategy until all claims have been processed and normalized to about seven new cases per month by March 2008.

Some of our stakeholders have also expressed concern that the term, nonroutine, is ambiguous, and that in some cases an activity which is regularly done by public safety offices is considered routine.

Sharing those concerns in order to complete review of all hometown hero denials, while nonroutine has been referenced in determinations, thus adding to the sense that the term was used to deny cases, to date no claim has been denied solely because the activity was deemed routine.

Understanding this was a concern to firefighters, law enforcement, and survivors, and to ensure consistency in the future, I provided binding directions so that no activity will be considered routine simply because the office might engage in it regularly.

Additionally, this directive clarifies that emergency calls will be considered nonroutine for hometown hero purposes.

Another concern raised is the request that hometown hero survivors provide up to 10 years of medical history. Early in hometown heroes process, we were advised by forensic pathologists to request these records, then quickly realized that they were not needed in many cases. As a result we have reduced the burden on survivors by not requesting these records in most cases. I have recently provided binding direction on this issue as well, specifying that medical records will be requested only in rare circumstances where the records might serve to support the claim.

A further concern is the ratio of hometown heroes approvals to denials. As we continue to partner with the national stakeholders and review the wide range of cases submitted, we have discovered critical information points that can positively impact claim outcomes based on our experience, and increased outreach to agencies and claimants regarding the officers' activities in the 24 hour period to the heart attack or stroke, I believe we can reduce the number of claims determined and denied on incomplete evidence, and in turn increase the number of approvals.

Finally, there are concerns about the outcomes of specific cases. While the department cannot speak publicly regarding individual or ongoing cases, I am confident that increased outreach efforts will help agencies and survivors provide all evidence needed to effectively support their claims, including those claims now on appeal.

Please be assured that the Department of Justice is committed to ensure that all PSOB claims are administered in a compassionate, fair and timely way.

I have served in the criminal justice community for over 22 years. And as BJA's director, I have never forgotten the values and the life lessons that I was taught in a public safety household.

Mr. Chairman, I'd be happy to answer your questions, and I thank you for allowing me the opportunity.

SEN. SCHUMER: Well, thank you, Mr. Herraiz. And I must say, your testimony gives us some hope that things are changing and will change.

I can tell you as one of the co-sponsors of the act, we did want these kinds of changes all along. In fact, April of 2003, I stated very clearly that the old standard, before the act was implemented, was very narrow, and ignored tremendous stress and strain that first responders are under when they respond to a call, unquote. So it seems inherently unfair to me, Senator Leahy, Senator Specter, my colleagues who were involved in this, that the families whose loved ones died while responding to a fire were treated differently than those who died while fighting a fire when the stress on their bodies was often quite equal.

Both represent acts of heroism, of being willing to make the ultimate sacrifice in service. Both deserve our honor in the form of compensation for their families. And that's why we modified the law to cover situations when a first responder died as a result of stressful circumstances surrounding a call to action. We carefully tailored this language to avoid being too broad. We didn't want to include situations where someone who's a first responder passes away in nonstressful situations like sitting around the fire house waiting for a call, or a volunteer EMT who might be waiting for a call watching television.

Those are routine to anyone's daily life, and not covered. But the three cases we've heard here are not routine in the least. You know that, I know that, we all know that. And so that's why there is such frustration here because it seemed like the Justice Department was going out of its way to defy congressional intent to deny these widows, these families, their just -- their just desserts.

So when you met with my staff back in May one of your colleagues stated it was not the position of the Justice Department to exclude all cases in which a fire fighter or a police officer died while responding to a call. He stated DOJ considered such activity nonroutine. That was good. Your letter seems to back that up -- your testimony here, very well.

But Ms. Falkouski's denial letter flies in the face of that statement. Her letter states that, quote, "The act of responding at any hour of the day or night to the scene of a fire event is a routine engagement." There's a direct contradiction in her denial, and I don't know the letter of Mr. Schwantes, but I'm sure there are many others.

So when presented with this letter back in May, you and your colleagues assured my staff, despite the reason for denying Ms. Falkouski, this wasn't the position of the Justice Department. And the new testimony makes that crystal clear. I'm very glad to hear it.

So my question to you is, first, if the new policy is the policy of the Justice Department, what are we going to do with the claims that were denied seemingly under an old policy if an unstated policy? I don't want to put you in a legal box here, but I certainly want to get relief for Ms. Falkouski and the many -- Mrs. Schwantes, and the many others who are like that.

So my question really is aimed at the future. What are we going to do to correct the situation? First, in addition to the directive, what steps have been taken to make sure that other claims are not denied due to this misinterpretation of the law? And second, I know you can't discuss specific cases, but what are we going to do on the -- with the appeals of the claims that were initially rejected seemingly under an interpretation of the law that the Justice Department no longer holds.

Those are my two questions, and they're said with respect and appreciation for your being here and wanting to be helpful.

MR. HERRAIZ: Thank you, Mr. Chairman.

In regards to your first question, and the directives, the binding directives that we've issued, it's important for me to stress how important the time period to get there really was.

You had referenced a meeting in May. We have watched these -- by both working with the national organizations, even local fire and police services, to really try to figure out what are the information points as it related to the regulations? How can we get the next step -- get to the next step?

And that's when we identified that, coming back from your staff meeting as well, to review, and I mentioned, to actually go and review all the old cases and to make sure that determinations -- and we basically discovered that the terminology that we used in those letters was not the best terminology. And that's why we went back and reviewed each one. Then the recent decision to issue the directive so we can make it clear and build a foundation for the future, to guarantee that this will be followed in the PSOB office from this day forward.

Specifically as it relates to the claims that have -- are still at BJA in particular, these new directives obviously will impact those cases.

The second aspect, as far as the cases that are on appeal, where those individuals, approximately 26 survivors have appealed the decision of the PSOB office, right now those have gone to a hearing officer who will go out into the community, work with the surviving family to gather additional information. They will come back and provide a report back, as the hearing officers, to new information that was found on the part of the claim.

There are two parts to the process of the appeal. The BJA director, myself, has the final step. I'm the final -- the second step in the process, and it gives me the opportunity to look at what the hearing -- look at all the information in the file which I have not yet seen on any of the cases. Again, these cases I'm looking for coming back from the appeal -- from the hearing officer, rather.

So we'll have the opportunity to implement those two directives and share those with the hearing officers because they have not reached my desk yet. Those cases, which we have denied, the PSOB office director will personally reach out to each one of those families, the surviving families, share with them what the directive is, what it means, and give them the opportunity to figure out if at that point they would like to appeal back to the director of BJA through the hearing process as established in the regulations.

SEN. SCHUMER: And I take it then that this new information will be looked at under the guise of this directive, new directive, even if it's an appeal -- even if it's on appeal?

MR. HERRAIZ: That's correct.

SEN. SCHUMER: That is good news. And hopefully that should get us some justice for some of these families, and we'll be watching carefully. But we do, I think, speaking for myself, and I would imagine the whole committee, we appreciate shall we say, not the change in law, because I know you're bound by that, but by the change in attitude of the Justice Department in this regard, and we're going to be looking very carefully at the -- hope that that attitude shows through not only on the new cases, which are very important, but on the appeals because it would just be unfair to hold these 26 families to a different standard than the new standard that's forward.

Senator Leahy?

SEN. LEAHY: I was just going to add, I read your testimony before. I was encouraged by it. And I want to thank you for coming here. And you've heard some very gripping stories. But unfortunately there are many, many others like it, I hope you will take a look at Ms. Schwantes and Ms. Falkouski's files, review that in light of all this?

Ms. Tilton has gotten notice that that's going to be looked at, and that's good. But I -- you know, there are so many others we could have had here testifying. And I am encouraged, director, very much so, and I want you to know I appreciate that.

BREAK IN TRANSCRIPT

Source