September 7, 2008

Mr. Francis J. Spinelli

506 East Mountain Road North

Cold Spring, New York 10516

Hope Janke

Counsel to the Director

Bureau of Justice Assistance

Office of Justice Programs

810 7^th^ Street, NW

Washington, DC 20531

RE: (OJP Docket No. 1478) [Proposed Rulemaking Regarding the Public
Safety Officers' Benefits Program,]{.underline}

Dear Ms. Janke:

I am submitting these comments in response to the Notice of Proposed
Rulemaking relating to the Public Safety Officers' Benefits Program
(\"PSOBP\") that the U.S. Department of Justice, Office of Justice
Programs ("OJP") published in the Federal Register on July 10, 2008
("Proposed Regulation"). As a career and volunteer Chief Officer in the
fire service, I have a vested interest in seeing that the rule making
process does not spin out of control and further impose hardships upon
those families that have already suffered an inconceivable loss.

I support several of the goals OJP notes in the preamble to the Proposed
Regulations that it hopes to accomplish through this rulemaking, such as
to remove ambiguities in the current regulation and to counter any
suggestion that claims filed under the Hometown Heroes Survivors
Benefits Act of 2003 ("HHSBA") are not regular PSOB death-benefit
claims, and we applaud OJP's continued commitment to improving this
important program. I am concerned, however, that contrary to these
stated goals, some of the changes OJP has proposed could unintentionally
constrict the classes of individuals eligible to receive benefits under
the PSOBP and impose unnecessary, unduly burdensome procedural
requirements on PSOBP claimants. Such results would run counter to what
Congress intended when it enacted the Public Safety Officers\' Benefits
Act (\"PSOBA\") and related laws, including the Hometown Heroes
Survivors Benefits Act.

As the Court of Federal Claims has repeatedly counseled, the PSOBA "is
remedial in nature and thus should not be applied grudgingly, but rather
should be construed liberally to avoid frustration of its beneficial
legislative purposes." *See, e.g., Winuk v. United States*, 77 Fed. Cl.
207, 215 (2007); *Bice v. United States,* 72 Fed. Cl. 432 (2006);
*Demutiis v. United States,* 48 Fed. Cl. 81, 86 (2000), *aff'd as
modified,* 291 F.3d 1373 (Fed. Cir. 2002). *See also Baltimore &
Philadelphia S.B. Co. v. Norton,* 284 U.S. 408, 414 (1932) (remedial
laws "are deemed to be in the public interest and should be construed
liberally in furtherance of the purpose for which they were enacted and,
if possible, so as to avoid incongruous or harsh results"). *Certain
provisions of the Proposed Regulations run afoul of these important
admonitions, and thus are not unlike OJP's initial regulations governing
the HHSBA*. Those initial regulations led to the denial of nearly all
heart attack and stroke claims filed under the Act within their first
year of operation, and necessitated the issuance of clarifying
directives in October 2007. Given the problems which OJP encountered as
a result of the agency's initial interpretation of the Hometown Heroes
Act, it should not proceed precipitously in issuing Final Regulations
regarding this important program unless and until it has fully
considered the potential effects of these amendments on claimant public
safety officers or their survivors, and consulted with the public safety
community.

My specific comments on the Proposed Regulation are as follows:

**1. OJP Should Define, Clarify or Eliminate Certain Terms in the
Definition of "Authorized Commuting," 28 CFR § 32.3.**

The PSOBA provides for the payment of benefits when a public safety
officer is killed or disabled in the line of duty. *See* 42 U.S.C. §§
3796 and 3796d. OJP has interpreted that Act as providing that an injury
is sustained in the line of duty, and thus qualifies for benefits, only
if it is sustained in the course of the performance of a line of duty
activity, a line of duty action or *authorized commuting*, or if
convincing evidence demonstrates that such injury resulted from the
injured party's status as a public safety officer. 28 C.F.R. § 32.3. The
term "authorized commuting," which does not appear in the statute
itself, nor did it become part of the regulations until the 2005-2006
PSOBP rulemaking, is presently defined as travel by a public safety
officer "in the course of actually responding to a fire, rescue, or
police emergency..." *Id.* The Proposed Regulation would revise the
definition so that authorized commuting is defined as travel by a public
safety officer "in the course of actually responding (as authorized) to
a fire, rescue, or police emergency, or to a particular and
extraordinary request (by the public agency he serves) for that specific
officer to perform public safety activity, within his line of duty...."
*See* Proposed Regulation at 39635. Taken as a whole OJP's proposed
amendments to the term "authorized commuting" may create significant
uncertainty, inconsistent application by the courts and/or PSOB
determining officials, and is not in keeping with the Agency's stated
goal to "remove ambiguities" in the current regulations. *See* Proposed
Regulation at 39634. As such, it is not unlike OJP's original
interpretation of "non-routine stressful or strenuous physical activity"
in the 2006 regulations implementing the HHSBA. This interpretation
generated no end of confusion, was a factor in a number of adverse
determinations over the course of the first year that these regulations
were in effect, and necessitated clarification in the BJA Director's
October 2, 2007 policy directive. As described by the Director, this
clarification was necessary "to ensure future consistency" in how BJA
would consider this term.[^1]

There are several problems with the proposed change. The proposed
definition of \"authorized commuting\" involves the second phrase, which
expands the existing definition to include travel when a public safety
officer is responding to \"a particular and extraordinary request (by
the public agency he serves) for that specific officer to perform public
safety activity, within his line of duty....\" The issue is that the
word \"extraordinary\" is undefined. Does "extraordinary" mean that the
request simply is not commonplace? Or is "extraordinary" instead a
reference to dangerous circumstances? Or does \"extraordinary\" mean
something else altogether? The Proposed Regulation does not say.

More fundamentally, the inclusion of the word \"extraordinary\" seems
unnecessary. Consistent with Congress\' intent, benefits should be
triggered *whenever* a public safety officer suffers permanent
disability or death as a result of an injury sustained while traveling
pursuant to a specific request made by his or her agency to perform a
\"public safety activity within his \[or her\] line of duty.\" For
instance, being called back to duty by his/her agency due to a shortage
of manpower during an event or emergency. If a public safety officer has
suffered disability or death resulting from an injury sustained while
traveling to perform a "public safety activity within his line of duty"
at his agency's specific request, the PSOBA very clearly, and without
more, provides for benefits. 42 U.S.C. § 3796(a) (where the BJA
"determines ... that a public safety officer has died as the direct and
proximate result of a personal injury sustained in the line of duty, the
\[BJA\] *shall* pay a benefit ...") OJP reached a similar conclusion
with respect to the meaning of the term "authorized commuting" in the
preamble to the August 10, 2006 PSOBP regulations. The agency noted that
"in the case of officers who are commuting to or from work with other
modes of transportation, the ordinary line of duty analysis would apply:
Where it can be shown that they were injured while engaging in line of
duty activities or action, or that they sustained the injury as a result
of their status as public safety officers, they would be considered as
acting in the line of duty." 71 FR 46033. Fairly construed, the PSOBA
simply imposes no additional requirement that the officer\'s agency\'s
particular request be \"extraordinary.\"

To avoid uncertainty and to honor Congress\' intent, the OJP should at
the very least define "extraordinary" in a manner that is keeping with
the intent of Congress. Absent this, we recommend OJP eliminate the
words \"and extraordinary\" from the proposed revision to the definition
of \"authorized commuting" so as to avoid any undue confusion. Congress
clearly wished to provide benefits in *all* situations where a public
safety officer suffers permanent and total disability or dies as a
result of an injury sustained while traveling pursuant a particular
request made by his agency to perform a public safety activity within
the line of duty.

Secondly, the proposed definition of \"authorized commuting\" is that it
contains a new term, "public safety activity," which the Proposed
Regulation defines as being limited to "(1) Law enforcement; (2) Fire
protection; (3) Rescue activity; or (4) The provision of emergency
medical services." *See* Proposed Regulation at 39637. While this
definition would seem sufficient, due to the nature of public safety,
this definition could inadvertently exclude certain emergency response
activities that do not fall neatly into one these four categories. To
ensure that the definition is sufficiently comprehensive, consistent
with the intent of the PSOBA, the OJP should: **(i)** delete the \"or\"
between \"Rescue activity;\" and (4); and **(ii)** after the phrase
\"The provision of emergency medical services,\" insert the following:
\"; or (5) any emergency response activities an agency is authorized to
perform."

**2. OJP Should Not Adopt Certain Provisions in the Proposed Definition
of "Certification" in 28 C.F.R. § 32.3.**

Certifications are prerequisites to establishing eligibility for
benefits under the PSOBP. 28 C.F.R. § 32.15 specifically provides that
no claim for benefits shall be approved unless the following
certifications are filed: (i) a certification from the public safety
officer\'s agency that the officer died as a direct and proximate result
of a line of duty injury and that the agency either has paid the
officer\'s survivors the maximum death benefits it can legally pay or is
not legally authorized to pay such benefits;[^2] and (ii) a
certification by the claimant listing every individual known to him who
is or might be the officer's child, spouse, or parent.

The Proposed Regulation includes, for the first time, a definition of
"Certification" in 28 C.F.R. § 32.3. This proposed definition would
impose on PSOBP claimants a number of new procedural requirements that
will make filing claims more cumbersome. OJP does not articulate any
justification for adding these requirements. Among other things, the
proposed definition would: (i) require certifications to be "expressly
intended to be relied upon by the PSOB determining official in
connection with the determination of a claim specifically identified
therein" and "expressly directed to the PSOBP determining official";
(ii) require certifications to contain express declarations that they
are legally subject to prosecution for false statements and perjury and
to the statutory provision governing declarations under the penalty of
perjury; (iii) require certifications to be executed by a person who
has, and declares that she has, knowledge of the assertions made and
legal authority to make such assertion; and (iv) allow the Director of
the Bureau of Justice Assistance (\"BJA\"), in his discretion, to impose
additional "form" requirements. In addition, the proposed definition
might make it more challenging for claimants to have their claims
considered, even if their certifications are otherwise technically
compliant. Specifically, a provision in the proposed definition of
"certification" permits the PSOB determining official to reject a
certification if, in his own view, it is not "unambiguous, precise and
unequivocal." These are terms that, on their face, lend themselves to
subjective determinations.

I do not object to OJP\'s endeavoring to establish guidelines for what
the certifications required under the PSOBP must contain. But OJP must
not make the certification requirements so technical and so cumbersome
(particularly without any legitimate, articulated justification) that it
elevates form over substance and renders agencies and claimants
effectively unable to comply with them without the assistance of
counsel. It is my concern that, with some of the proposed requirements,
OJP is doing precisely that. I therefore oppose the inclusion of such
proposed requirements:

a\. By newly requiring certifications to be both "expressly intended to
be relied upon by the PSOB determining official in connection with the
determination of a claim specifically identified therein" and "expressly
directed to the PSOB determining official," OJP is erecting for eligible
PSOBP beneficiaries unnecessary procedural hurdles that appear to serve
little purpose other than to permit the BJA to deny potentially
meritorious PSOBP claims on technical grounds. Indeed, these proposed
requirements are a clear effort to override a judicial decision in which
the Court of Federal Claims explicitly criticized the BJA Director as
having acted "narrow mindedly" and "arbitrarily," and as having
improperly elevated form over substance, for denying the PSOBA claims of
the father of a volunteer firefighter who gave his life attempting to
rescue victims of the terrorist attacks of September 11, 2001. *Winuk v.
United States*, 77 Fed. Cl. 207 (2007) (holding that BJA Director acted
arbitrarily in denying claim on grounds that, *inter alia*,
certification letters were not expressly directed to BJA). In other
words, the proposed requirements are an effort to *restore* a
"narrow-minded" and "arbitrary" interpretation of the PSOBA that values
form over substance. They should not be permitted to go into effect.

If, in connection with a claim, a PSOBP claimant and/or relevant agency
provides to the BJA the requisite certifications that, *in substance*,
contain the necessary information (*e.g.,* that the officer died as the
direct and proximate result of a line-of-duty injury and that the
survivors received the maximum allowable benefits from the officer\'s
agency), such certification is sufficient to meet the certification
requirement. Consistent with the ruling in *Winuk*, that is so whether
or not the certifications are "*expressly* intended to be relied upon by
the PSOB determining official in connection with the determination of a
claim *specifically* identified therein" and whether or not they are
"*expressly* directed" to the PSOB determining official. In the end,
what matters is whether the certifications get into the hands of the
determining official, not how they are intended or addressed.
Subparagraphs (1) and (2) of the proposed definition of "certification"
should be deleted.

b\. It is unnecessary to require certifications to contain: (i) a
*formal* declaration from the executing individual that he or she has
knowledge of the assertions made in the certification and the legal
authority to make them; or (ii) a *formal* declaration that the
assertions made in the certification are subject to prosecution for
false statements and perjury and to the statute governing declarations
under penalty of perjury. Both are already implicit in any certification
an agency or individual submits. As to (i), the signature on a
certification plainly implies that the signatory has knowledge of and
authority to make the assertions in the certification.[^3] As to (ii),
it is a given that an individual who signs a statement (*e.g.,* a
certification) and provides it to federal officials is subject to
federal criminal prosecution if the statement is false. There is thus no
sound reason -- and OJP gives none -- to require formal declarations
regarding these matters. This is especially so given that there are
other provisions in the proposed definition of \"certification\" that
guarantee the trustworthiness of PSOBP certifications. These include the
provision that requires certifications to be \"true, complete and
accurate\" (*see* subparagraph (6)), and the language making explicit
that the individual executing a certification may be punished under the
criminal law for making false statements (*see* subparagraph (3)).

Requiring formal declarations regarding the assertions made in PSOBP
certifications would, again, elevate form over substance and potentially
result in the improper rejection of certain claims on non-substantive,
technical grounds. Subparagraph (4) of the proposed definition of
"certification" should be deleted, as should the words "and expressly
declares the same to be so" in subparagraph (3).

c\. The proposed provision permitting the BJA Director to alter the
certification requirements from time-to-time is objectionable and
unreasonable. While it arguably provides the BJA Director with
flexibility to alter the form of the requisite certifications as needed,
it provides absolutely no limits on what the Director may do. Giving the
Director unfettered discretion to change the form of the certifications
literally permits the Director to elevate form over substance,
authorizing him, without limitation, to impose new technical, procedural
requirements on PSOBP claimants outside the rulemaking process.
Subparagraph (5) of the proposed definition of "certification" should be
deleted.

d\. The proposed provision requiring the certifications to be
"unambiguous, precise, and unequivocal, in the judgment of the PSOB
determining official as to any fact asserted, any matter otherwise
certified, acknowledged, indicated, or declared..." is unwarranted. It
seeks effectively to reverse the Court of Federal Claims' correct ruling
in *Winuk*, which castigated the BJA Director for implausibly
determining two certifications to be ambiguous on the question of
whether a volunteer firefighter died from injuries sustained in the line
of duty. The Court of Federal Claims got it right; the Proposed
Regulation gets it wrong. When, as in *Winuk*, a public safety officer's
agency certification can be fairly construed to indicate that the
officer died from injuries sustained in the line of duty, and when such
certification can be fairly construed to indicate that the agency has
paid the maximum allowable amount of benefits, the certification
requirement is satisfied. It is both unreasonable and contrary to
Congress\' wishes to hold claimants, who may not be sophisticated and
likely are not trained in the law, to an exacting subjective standard
that a PSOB determining official (like the BJA Director in *Winuk*)
might interpret as requiring a near-impossible-to-attain level of
precision. Subsection (7) of the proposed definition of "certification"
should be deleted.

**3.** **OJP Should Adopt a More Precise Definition of "Commonly
Accepted" in 28 CFR § 32.3.**

OJP has the authority to deny a claim if a public safety officer who
died from a heart attack precipitated by line-of-duty conduct engaged in
intentional "risky behavior," which is defined to include a number of
things "commonly accepted" to be a substantial health risk. 28 C.F.R. §
32.13. The Proposed Regulation would define "commonly accepted" to mean
"generally agreed upon within the medical profession." Proposed
Regulation at 39636.

My objection to this definition is that the phrase "generally agreed
upon within the medical profession" is too imprecise and is therefore
subject to misapplication. Fifteen (15) years ago, the U.S. Supreme
Court rejected a similar standard, which had governed the admissibility
of scientific evidence in federal courts for decades, and replaced it
with a more comprehensive standard that focuses on the reliability and
relevance of proffered scientific evidence. Under this more
comprehensive standard, the non-exclusive list of factors for assessing
reliability includes:

-   whether the scientific theory or technique can or has been tested

-   whether the scientific theory or technique has been subjected to
    peer review and publication

-   the known or potential error rate of the technique when applied

-   the existence and maintenance of standards and controls

-   the general acceptance of the theory or technique in the relevant
    scientific community

Consistent with how federal and many state courts now determine the
admissibility of scientific evidence, and to ensure that PSOB
determining officials do not erroneously deny claims by interpreting the
definition of \"risky behavior\" more broadly than is appropriate, the
OJP should define \"commonly accepted\" to mean: \"based on a theory or
technique that is scientifically reliable, such scientific reliability
being established on the grounds that the theory or technique: (i) can
be or has been tested; (ii) has been subjected to peer review and
publication; (iii) has a known or potential error rate; (iv) features
the existence and maintenance of standards and controls concerning its
operation; and (v) is generally accepted within the medical
profession.\"

**4. OJP Should Not Limit the Kinds of Training Programs that Trigger
PSOPB Benefits Eligibility.**

> a\. [OJP Should Not Limit the Kinds of Training Programs that Qualify
> as]{.underline} "[Line of Duty Activity or Action" under 28 CFR §
> 32.3, as the Proposed Regulation Provides.]{.underline}

The PSOBA provides that BJA should pay benefits if a public safety
officer "has died as the direct and proximate result of a personal
injury sustained in the line of duty." 42 U.S.C. § 3796 (a). The PSOBA
regulations currently provide that officers who participate in "training
programs" are considered to be acting "in the line of duty." 28 CFR §
32.3. OJP proposes to revise the definition of "line of duty activity or
action" so that it instead entails participation in "any official
training programs of his public agency." Proposed Regulation at 39636.

I recommend amending this definition by striking "his public agency" and
replacing it with "a public agency." This will keep the definition
uniform with that of "official training program of a public agency"
found later in the proposed rule and clarify any confusion over whether
or not an officer can participate in a program offered by any
organization or agency other than his own when the officer's agency
approves their participation.

> b\. [OJP Should Not Narrow the Definition of "Participation in a
> Training Exercise" in 28 CFR § 32.13.]{.underline}

Under the PSOBA, as amended by the HHSBA, benefits eligibility may be
triggered by a death resulting from a heart attack caused by, *inter
alia*, on-duty "participation in a training exercise" that involves
non-routine stressful or strenuous physical activity. 42 U.S.C. 3796
(k). The current definition of "participation in a training exercise"
reads: "A public safety officer participates (as a trainer or trainee)
in a training exercise only of 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." 28 CFR
32.13. OJP proposes to revise this definition to read, "A public safety
officer participates (as a trainer or trainee) in a training exercise
only when actually taking formal part in *a mandatory, structured
activity* within an official training program *of his public agency*."
Proposed Regulation at 39638 (emphasis added).

By requiring that the training be "mandatory," the new definition, by
its plain language, could be interpreted to exclude officers who, *even
with their agencies' approval,* participate in voluntary training
programs to enhance their knowledge and skills. This type of language
discourages members of service from furthering their education, by
placing a penalty on their attendance.

I recommend OJP define the term "mandatory" as it applies to training
exercises and ensure that the definition does not exclude voluntary
training programs intended to enhance knowledge and skills. Failing
this, OJP should not adopt the new definition of "participation in a
training exercise" set forth in the Proposed Regulation, inasmuch as it
is unclear and could inadvertently restrict the kinds of training
programs that public safety officers could participate in.

**5.** **OJP Should Revise the Proposed Definition of "Heart Attack" in
28 CFR 32.3.**

In the existing regulations, "heart attack" is defined as "myocardial
infarction or sudden cardiac arrest." 28 C.F.R. §32.3. OJP proposes
revising the definition as follows:

> *Heart attack* means\--
>
> \(1\) A myocardial infarction; or
>
> \(2\) A cardiac-event (i.e., cessation, interruption, arrest, or other
> similar disturbance of heart function), not included in paragraph (1)
> of this definition, that is\--
>
> \(i\) Acute; and
>
> \(ii\) Directly and proximately caused by a pathology (or pathological
> condition) of the heart or the coronary arteries.
>
> (Proposed Regulation at 39636-37).

While appropriately broader than the current definition of "heart
attack," the proposed definition still fails to include, as it should,
situations in which the heart stops due to chest trauma. For example,
under the proposed definition, a public safety officer who, while acting
in the line of duty, receives a lethal, heart-stopping blow to his chest
during the few hundredths of a second between when the heart contracts
and starts again would not be considered to have suffered a heart attack
because an autopsy would reveal no cardiac pathology. OJP should revise
the proposed definition of "heart attack" to include sudden trauma to
the heart that causes the heart to stop, resulting in death. I
specifically propose that OJP amend subsection (2) of the definition so
that it reads as follows:

> \(2\) A cardiac-event, (including, but not limited to, cessation,
> interruption, arrest, or other similar disturbance of heart function),
> not included in paragraph (1) of this definition, that is\--
>
> \(i\) Acute, and directly and proximately caused by a pathology (or
> pathological condition) of the heart or the coronary arteries; or
>
> \(ii\) Directly and proximately caused by a trauma to the heart that
> causes the heart to stop.

**6. OJP Should Revise the Proposed Regulation Regarding "Competent
Medical Evidence to the Contrary" in 28 CFR § 32.14.**

The HHSBA contains a presumption that death from stroke or heart attack
occurring within 24 hours of non-routine stressful or strenuous "law
enforcement, fire suppression, rescue ... or other emergency response"
activity or training exercise is a benefits-eligible, line-of-duty
injury. 42 U.S.C. § 3796 (k). The presumption may be overcome, however,
by "competent medical evidence to the contrary." *Id.* As the Proposed
Regulation explains, the BJA issued a memorandum in October 2007 that
clarifies what the BJA should, and should not, consider to be "competent
medical evidence to the contrary." OJP now purports to incorporate this
memorandum into the implementing regulation by adding a new provision,
28 C.F.R. § 32.14(c). The new provision reads as follows:

> \(c\) In connection with the determination of the existence of
> competent medical evidence to the contrary, pursuant to a filed
> claim---
>
> \(1\) Where there is an affirmative suggestion under paragraph (c)(2)
> of this section, which indicates the existence of a potential ground
> for denial of the claim, the PSOB Office shall serve the claimant with
> notice thereof, to request that he file such documentary, electronic,
> video, or other non-physical evidence (such as medical-history
> records, as appropriate) and legal arguments in support of his claim
> as he may wish to provide;
>
> \(2\) There is an affirmative suggestion within the meaning of
> paragraph (c)(1) of this section, where the evidence before the PSOB
> Office affirmatively suggests that---
>
> \(i\) The public safety officer actually knew or should have known
> that he had cardio-vascular disease risk factors and appears to have
> worsened or aggravated the same through his own intentional and
> reckless behavior (as opposed to where the evidence affirmatively
> suggests merely that cardio-vascular disease risk factors were
> present); or
>
> \(ii\) It is more likely than not that a public safety officer\'s
> heart attack or stroke was imminent; and
>
> \(3\) The PSOB Office shall not request medical history records to
> supplement a filed claim, unless the criteria in paragraphs (c)(1) and
> (2) of this section are satisfied; and
>
> \(4\) Any mitigating evidence provided under paragraph (c) of this
> section will be considered by the PSOB Office.

For two reasons, this new provision falls short of OJP's stated goal of
fully and successfully incorporating the October 2007 memorandum. First,
the mutual cross-references between subsections (c)(1) and (c)(2) make
the proposed provision cumbersome and confusing and therefore
potentially subject to misapplication. Second, the proposed provision
does not expressly convey one of the central tenets of the October 2007
memorandum -- namely, that cardio-vascular disease/risk factors must
*not* be considered in the absence of certain evidence in the claim
file. There is no reason why it should not do so.

OJP should revise the proposed regulation regarding \"competent medical
evidence to the contrary\" to read as follows:

> \(c\) In connection with the determination of the existence of
> competent medical evidence to the contrary---
>
> \(1\) Where the evidence submitted to the PSOB Office affirmatively
> suggests that (i) the public safety officer actually knew or should
> have known that he had cardio-vascular disease risk factors and
> appears to have worsened or aggravated the same through his own
> intentional and reckless behavior (as opposed to where the evidence
> affirmatively suggests merely that cardio-vascular disease risk
> factors were present) or (ii) it is more likely than not that a public
> safety officer's heart attack or stroke was imminent, the PSOB Office
> shall serve the claimant with notice thereof, to request that he file
> such documentary, electronic, video, or other non-physical evidence
> (such as medical-history records, as appropriate) and legal arguments
> in support of his claim as he may wish to provide;
>
> \(2\) In determining whether the evidence submitted to the PSOB Office
> affirmatively suggests the existence of any of the criteria set forth
> in paragraph (c)(1) of this section, the mere presence of
> cardiovascular disease risk factors (even extremely severe) shall not
> be considered;
>
> \(3\) The PSOB Office shall not request medical history records to
> supplement a filed claim unless the criteria set forth in paragraph
> (c)(1) of this section are satisfied; and
>
> \(4\) Any mitigating evidence provided under paragraph (c)(1) of this
> section shall be reviewed by the PSOB Office in favor of the claim.

The PSOBP is a critical program designed to recognize and honor the
invaluable public service performed by those who sacrifice their lives
to protect our communities. It is imperative that OJP administer the
PSOBP in a way that enables the PSOBP\'s intended beneficiaries to
obtain the assistance Congress has provided without having to satisfy
requirements that run counter to the PSOBP\'s broad remedial purposes.
Accordingly, we urge OJP to take action consistent with the foregoing
comments when revising the PSOBP regulations.

Thank you for your consideration in this matter. If you should wish to
speak to me directly, please feel free to call me at 914-494-5974.

Sincerely,

Deputy Chief Francis J. Spinelli

[^1]: See statement of Director Domingo Herraiz, Bureau of Justice
    Assistance, before the Senate Committee on the Judiciary, October 4,
    2007.

[^2]: 42 U.S.C. § 3796c-1 contains a similar certification requirement
    for cases in which beneficiaries choose to seek expedited benefits
    in connection with a death- or disability-causing line-of-duty
    injury sustained while preventing or responding to a terrorist
    attack.

[^3]: If the fact that the executing individual has personal knowledge
    of the assertions made in the certification cannot be gleaned from
    the contents of the certification -- an unlikely scenario -- the
    PSOB determining official can simply return the certification to the
    agency or claimant and ask the executing individual to make it
    clear. No formal declaration need be required.