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41–157 PDF 2008

S. HRG. 110–310

JUSTICE DENIED: IMPLEMENTATION OF THE

HOMETOWN HEROES SURVIVORS BENEFITS ACT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

OCTOBER 4, 2007

Serial No. J–110–46

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware, 

prepared statement .............................................................................................. 24

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 16

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 3

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

prepared statement .......................................................................................... 48

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 8

WITNESSES 

Falkouski, Susan, Rensselaer, New York .............................................................. 9

Herraiz, Domingo S., Director, Bureau of Justice Assistance, Office of Justice 

Programs, Department of Justice, Washington, D.C. ....................................... 11

Schwantes, Athena, Fayetteville, Georgia ............................................................. 4

Tilton, Jo Ann, Katy, Texas .................................................................................... 6

QUESTIONS AND ANSWERS 

Responses of Domingo Herraiz to questions submitted by Senator Leahy ......... 18

SUBMISSIONS FOR THE RECORD 

Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, Washington, D.C.: 

Hope D. Janke, Director, Public Safety Officers Benefits Office, letter 

and attachment ............................................................................................. 26

Memoranda, October 2, 2007 ........................................................................... 29

Falkouski, Susan, Rensselaer, New York, statement ........................................... 31

Fraternal Order Of Police, Chuck Canterbury, National President, Washington, D.C., letter ............................................................................................... 33

Herraiz, Domingo S., Director, Bureau of Justice Assistance, Office of Justice 

Program, Washington, D.C., statement .............................................................. 35

International Association of Fire Chiefs (IAFC), Steven P. Westermann, President, Fairfax, Virginia, letter .............................................................................. 47

Schwantes, Athena, Fayetteville, Georgia, statement .......................................... 50

Sergeants Benevolent Association, Police Department, City of New York, Ed 

Mullins, President, New York, New York, letter ............................................... 52

Tilton, Jo Ann, Katy, Texas, statement ................................................................. 54

(1)

JUSTICE DENIED: IMPLEMENTATION OF THE 

HOMETOWN HEROES SURVIVORS BENEFITS 

ACT 

THURSDAY, OCTOBER 4, 2007

UNITED STATES SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, Pursuant to notice, at 2:41 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Schumer, Cardin, and Cornyn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good afternoon. I apologize for the voice. 

There are some who will probably be delighted to see it disappear. 

But it’s allergies more than anything else. 

I’m glad you’re here. I know that many of you, the reasons you’re 

here, you wish you didn’t have to be. I commend your courage in 

being here. 

In November of 2003, Congress unanimously passed the Hometown Heroes Survivors Benefits Act. This was legislation intended 

to improve the Public Safety Officers’ Benefits program by allowing 

survivors of first responders who suffered fatal heart attacks or 

strokes while participating in non-routine physical activities to 

qualify for Federal survivor’s benefits. 

I remember that December when, with great fanfare, the President signed the legislation into law. There were a large group of 

firefighters and law enforcement officers. I commended him for 

doing that. 

But unfortunately, once the TV lights turned off, cases started 

piling up to the Department of Justice. My frustrations, and the 

frustrations of the surviving families in the first responder community grew daily. We could not understand the Justice Department’s 

glacial processing of these applications. 

We’re going to hear a sampling of those deep and widespread 

frustrations today. More than 3 years passed before the Justice Department released its final implementation rule last year. Three 

years. They delayed implementation a while. They actually disregarded the clear will of Congress, Republicans and Democrats 

alike, to grant these surviving families death benefits in a timely 

and fair manner. 

2

It is no overstatement to conclude that they worked to erect obstacles between this program and those surviving families in not 

trying to find a way to help them. I think the thickets of red tape 

are painful indignities to these heroes and their families. They are 

also an offense to our moral obligation. 

Now, nearly 4 years after the Hometown Heroes bill became law, 

the Justice Department has approved only 12 Hometown Heroes 

claims, they denied 50 families this important benefit, and they’ve 

left 240 applications unanswered. I don’t think it’s any way to treat 

these people. It makes me think too much of what has happened 

to a lot of the returning soldiers from Iraq and Afghanistan and 

what we saw when the press looked into how they were being 

treated. We can have great parades for them when they go off. We 

ought to have some compassion when they come back. 

President Lincoln spoke for the ages in his second inaugural address in 1865 in the midst of the Civil War when he called for binding up the Nation’s wounds and caring for those who have borne 

the battle, and for their widows and orphans. This is the same 

moral obligation we share when it comes to the families of first responders. 

The Justice Department’s adjudication of claims has been nothing but bewildering, but also shocking. I’ll give you one example, 

just one: a U.S. Forest Service firefighter in Florida. He was found 

dead 45 feet behind the fire line with a shovel in his hand. That’s 

probably as far as I am from me to you, Ms. Tilton. 

He was denied benefits because those managing the program in 

Washington, sitting in air conditioned offices, couldn’t determine 

whether he was engaged in strenuous activity at the time of his 

heart attack. From that close to the fire line with a shovel in hand, 

I think you could make a pretty good claim that you’re engaged in 

strenuous activity. 

So the Justice Department should immediately expedite all these 

claims. They should revise the criteria used to evaluate claims. The 

burdensome information requests, 10 years’ worth of records, and 

so on, that should stop. Don’t harass these people. Remove the bureaucratic hurdles and the lengthy delays. 

The bottom line is, the needs of first responders and their families simply haven’t been a high enough priority. In the last hearing 

before the Judiciary Committee, Attorney General Gonzales agreed 

with me that the Justice Department was far too slow in writing 

regulations, and he even apologized. He assured me that it would 

clear up without any delays. It didn’t happen. He resigned. 

So, I thank Director Herraiz of the Department of Justice for 

being with us today, and I hope he comes in with better news. 

Heart attacks and strokes are a grim fact of life and death in the 

high-pressure jobs of police officers, fire fighters, and medics, as I 

saw when I was in law enforcement. Emergency first responders 

put their lives on the line for us. We owe their families our gratitude, our respect, and our help. 

I’m glad that the families of the first responders, real people, are 

here. Before I introduce them, these three surviving widows who 

are here to share their story, I want to yield. Senator Cornyn, 

you’re going to be ranking on this, I guess, this afternoon. 

3

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator CORNYN. Thank you. 

Chairman LEAHY. My friend from Texas, Senator Cornyn. 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. I appreciate your 

holding this important hearing today and inviting these witnesses 

here to share with us their experiences, and particularly appreciate 

your inviting Jo Ann Tilton of Katy, Texas to testify. 

I just received word that her claim was finally approved yesterday, two and a half years after it was filed, thanks to the attention 

that this hearing has brought to her case and the cases of others 

like her. But I think we would all agree that it should not take a 

congressional hearing to cut through the red tape and motivate the 

bureaucracy to finally act appropriately on the claim. 

On October 20, 2004, volunteer fire fighter Gary Tilton died of 

a heart attack. Three years later, Jo Ann Tilton comes before this 

committee seeking answers. Ms. Tilton wrote to my Dallas office in 

May of 2006 about the adjudication of her husband’s Public Safety 

Officers Benefits claim which she submitted to the Department of 

Justice in January of 2005. 

The determination to be made was whether or not Mr. Tilton’s 

cardiac event was actually in the line of duty. His heart attack occurred while performing his duties as a volunteer fire chief for the 

Katy fire department. Not only did the Department of Justice take 

an extraordinarily long time to process the claim, but DOJ gave 

Ms. Tilton different answers every time she made an inquiry, most 

of the time telling her nothing. 

On April 24, 2007, my office received a letter from the DOJ stating that the PSOB office had completed its review of Ms. Tilton’s 

claim and she would receive a written notification within the next 

10 days. Then on September 5, 2007, my office received another letter from the DOJ stating that her husband’s file had been sent to 

the forensic pathologist to undergo another medical review. 

Mr. Chairman, Ms. Tilton has been waiting for about 3 years for 

a decision to be made on her claim and waiting for a straightforward answer. This is, by any measure, unacceptable. It speaks 

to the need to reform the tangled bureaucracy that is unable to 

manage in a timely, efficient way, decisions that have great personal importance to the families of our Nation’s first responders. 

So I hope this hearing highlights that need so that people like 

Ms. Tilton may receive closure on this chapter of their lives instead 

of facing continued confusion, frustration, and disappointment. Ms. 

Tilton, thank you for coming from Houston, from Katy, Texas, to 

share your story with the committee. 

Mr. Chairman, thank you very much for allowing me to make a 

brief opening statement. 

Chairman LEAHY. Thank you very much. I agree with what you 

suggested, Senator Cornyn. Sometimes these hearings focus the attention, and I’m glad it’s done that. 

I would welcome the witnesses today. I want to welcome the 

many uniformed officers and surviving widows and families and 

4

friends who are here for the annual National Fallen Firefighters 

Memorial weekend in Emmitsburg, Maryland. We’ve actually held 

office retreats at that facility. 

I hope my colleagues won’t mind if I also mention Matt Vinci and 

Ben O’Brian from Vermont, who are both in the audience today 

Thank you, gentlemen. 

I want to thank the fire and police service organizations that 

have been so instrumental in passage and implementation of the 

Hometown Heroes Act: the Congressional Fire Services Institute, 

the National Fallen Firefighters Foundation, International Association of Firefighters, the National Volunteer Fire Council, the International Association of Fire Chiefs, the International Fire Service 

Training Association, and, of course, the Fraternal Order of Police, 

the National Association of Police Organizations, Sergeants’ Benevolence Association of New York City. Congressman Bob Ethridge, 

who is the author of the law in the House of Representatives, has 

been a great supporter for our first responders. 

We’ll turn to our witnesses. The first would be Athena 

Schwantes. I met her before, and Jo Ann Tilton, and Susan 

Falkouski. Ms. Falkouski, Senator Schumer is going to say more 

about you when we get there. I had the pleasure of meeting them 

and their children when they were in town last July. I would swear 

the girls have grown—you probably realize that—since then. 

So, thank you. Thank you for coming. Ms. Schwantes, why don’t 

we start with you? 

STATEMENT OF ATHENA SCHWANTES, FAYETTEVILLE, 

GEORGIA 

Ms. SCHWANTES. Thank you so much for allowing me to be here 

today. I’m Athena Schwantes, the surviving spouse of fallen firefighter Russell Schwantes from Atlanta, Georgia. 

In August of this year, I received my declination letter from the 

Department of Justice regarding my PSOB claim. Of course, it was 

pretty disheartening to get the letter stating they were denying the 

claim. I could accept this if Russell was a 5’9’’, 300-pound male who 

suffered a heart attack while sitting in a recliner at the fire station 

after eating a hamburger with chili cheese fries and a Coke. 

Instead, Russell was a 5’9’’, 195-pound male who had worked 14 

hours into his shift, and apparently he felt well enough to engage 

in the required routine physical fitness training. But something different happened this time. A call came in during the time that he 

was at his heightened heart rate. He ran to answer the call and 

then suffered a heart attack. Sounds like line of duty to me. 

Russell went to work in good health. During the days before, he 

performed in his family life as a husband, a father, and a brother. 

He played 18 holes of golf prior to his shift on Sunday. But when 

he went to work to perform those duties, something happened: he 

suffered a heart attack and died. 

We all know the facts about the Hometown Heroes Survivors Act, 

so there’s really no need for me to go over those again. But I do 

think it’s important that you hear three profound facts that I’ve experienced as a result of my husband’s death, however, they 

shouldn’t be a factor in this decision, because we all know that 

grief is painful. 

5

The loss of Russell has produced painful and disturbing symptoms of grief, including anxiety, yearning, depression, hopelessness, 

despair, crying, fatigue, and a loss of interest for life. I have questioned the value of long-term goals because I know that everything 

important to me can be taken away in an instant. 

As for my two daughters, Holly and Morgan, losing their father 

has had a devastating impact on the assumptions that were previously held. Being a part of a loving family, they, like I, saw the 

world as somewhat of a safe and orderly place. 

Regrettably, it only takes one shattering event of sufficient magnitude to change one’s core belief about life, that terrible things can 

happen without warning. My children were left feeling unsafe and 

insecure. 

Studies show that sudden death of a spouse or a parent has extremely negative long-term results, things like interpersonal problems, mental health problems, physical health problems, school 

performance problems, and substance abuse. 

But I say no to all of these. I say no to all of these for not just 

my children, but for the other surviving families, that we will not 

accept these statistics for our children. Of course, no amount of 

money can ever compensate for the things listed above, however, 

saying yes can remove some of the financial burdens that could potentially reduce, if not all, maybe some of these statistics. Isn’t it 

worth it? 

Throughout this journey I’ve spent a lot of time asking God why. 

He’s met me in the middle of my monumental grief, and each day 

I reach out my hand to Him for support and guidance. When dealing with things that were once routine that now seem so overwhelming, I ask for His counsel to ensure that I’m doing His will. 

So instead of continuing to ask God why, now I’m asking myself, 

why don’t you take where you’ve been and move forward. It’s now 

time to push beyond this tremendous pain and reach out to others 

who might be in need and to see that Russell did not die in vain. 

I wish you could have known him. 

If Russell could speak to us today he would say, ‘‘Please help the 

families of my fellow firefighters. Don’t turn your backs on what 

we’ve trusted and sacrificed our lives for.’’ He would say, ‘‘If it were 

your family, I’d do it for you.’’

So I ask, who will govern your actions today? From whom will 

you seek your counsel? Saying yes to this benefit will send a message to these families that losing their loved ones has been acknowledged. For us, it’s another step forward in believing that you 

will simply do what you said and wrote into law that you would 

do. 

[The prepared statement of Ms. Schwantes appears as a submission for the record.] 

Thank you. 

Chairman LEAHY. Thank you. If I might, with your permission, 

Holly and Morgan, your dad was a hero, but your mom is one, too. 

She’s a good mother. You take good care of her. I know she takes 

good care of you. 

Ms. Tilton, your husband was volunteer chief of the Katy fire department in Texas, as Senator Cornyn pointed out. I think he has 

6

introduced you. I’m proud to have you here, and I thank you for 

taking the time to be here. Please go ahead, ma’am. 

STATEMENT OF JO ANN TILTON, KATY, TEXAS 

Ms. TILTON. Since I’m here today speaking in his honor, I think 

it only fitting that he be here with us. 

Today I speak in honor of all fallen firefighters and their families. I would like to introduce to you one of the fallen. Chief Gary 

Tilton was part of that unique breed called a volunteer. His volunteer activities included membership in 43 service organizations. His 

involvements ranged from Rotary president, to city councilman, to 

church activities. But none of his activities held his heart like fire 

fighting. I have found that most people outside of the fire service 

do not understand the life of a volunteer firefighter. 

Let me try to explain. Gary was a volunteer with the Katy fire 

department for 31 years. While we did not wear a uniform or fight 

a fire, my daughter and I were very much a part of Gary’s fire 

service career. Every day of Gary’s 31-year career we lived that life 

with him. 

I learned that when you’re married to a firefighter, no plans are 

definite. Emergencies happened night or day and Gary answered 

the call. Very early in Gary’s career I learned how to reheat meals 

when we had to answer a call in the middle of dinner. I learned 

how to entertain a houseful of guests when Gary had a call and did 

not make it to his own birthday party. I learned how to be both 

mommy and daddy when Gary couldn’t be at our daughter’s activities because he was on fire call. 

When the alarm went off in the middle of the night, I didn’t roll 

over and go back to sleep when Gary left for the call. Instead, I’d 

listen to his monitor until I heard that everyone was back safely 

in the station. 

My daughter and I shared Gary with the community for 31 years 

and we do not regret 1 minute of it. He had a passion for the fire 

service that you could see in his eyes and hear in his voice. We 

shared his excitement with so many honors over the years, such as 

when he was named Firefighter of the Year for the State of Texas. 

We were so proud when he achieved his dream of being named fire 

chief. Somehow, I felt when Gary was honored, my daughter and 

I were also being honored because we’d been so much a part of 

Gary’s career. 

Because I’ve been so much a part of Gary’s career is one of the 

reasons that the delay of the DOJ has been so hard for me to handle. When the alarm went off, Gary answered the call. It didn’t 

matter the hour, the weather, or the occasion. Someone needed 

help and, without asking questions or waiting until some more convenient time, Gary answered the call. He didn’t wait to see why the 

fire started before he answered the call, he simply did what he was 

called to do, and that was to answer the call. 

Gary answered his last call on October 20, 2004 and I stepped 

into a role in which I had never imagined myself. I gained a most 

honored title that day, but yet it is one that no woman desires. 

Suddenly, I was a widow and faced with challenges I could only 

have imagined prior to my husband’s death. 

7

When my claim was filed for benefits under the Hometown Heroes Act, I was told not to expect to hear anything for at least a 

year, so I put that claim in the back of my mind. During that first 

year there were so many challenges to be met that I literally kept 

a list on a yellow tablet. 

As each task was completed and that obstacle was overcome, I 

would cross it off my list and feel a sense of relief and accomplishment. I had gone one more step on the road to building my new 

life. One by one, the items on that list began to be crossed off until 

1 day only one item remained: the claim for benefits under the 

Hometown Heroes Act. 

One year and 2 months after that claim was filed, I began to 

make inquiries to the DOJ. Periodically I would call and I would 

ask the same question; what is the status of my claim? I would always be given a very polite answer that basically said that either 

claims were not yet being processed, or my claim was in review. 

Time after time I called, time after time I was treated politely, but 

given no answers. Eventually I began e-mailing my questions to 

the DOJ. I received a contact e-mail each week, but no answers to 

my questions. 

Over the past 18 months, I’ve had a total of 25 phone calls and 

10 e-mails with the DOJ. None of those phone calls or e-mails contained answers to my questions. This has been a most painful and 

frustrating process. There is no way I can tell you how hard those 

phone calls and e-mails have been. 

With every contact, another little piece of me has died because 

there on a piece of paper called a claim is the stark reality that 

my husband is not coming home. Unless you are a survivor yourself, there is no way you can understand the depth of pain of losing 

a spouse or a father. That pain is only made sharper by the delay 

in processing of the death claim. 

Less than 48 hours ago, on Tuesday night as I was preparing to 

leave my home the next morning to come to Washington, I received 

a phone call from the Department of Justice. I was told that my 

claim had been approved that day. Two years and 10 months after 

this claim was filed, it has been approved for payment. 

For me, it appears that the battle is over. I can only hope that 

the approval of this claim is an indication that the DOJ has begun 

to move forward in processing the many Hometown Heroes claims 

which have been pending for way too long. Many other families are 

experiencing that same pain and agony that I have felt for so long. 

I hope that they, too, will receive the honor that their firefighter 

so rightly deserves. 

In 16 days, I will observe the third anniversary of my husband’s 

death. This has been an incredibly painful process, but today I 

would say thank you for finally giving my husband the honor he 

deserves. He will always be my hero. Thank you. 

[The prepared statement of Ms. Tilton appears as a submission 

for the record.] 

Chairman LEAHY. Well, thank you, Ms. Tilton. Ms. Tilton, is this 

your daughter? 

Ms. TILTON. This is my daughter, yes. 

Chairman LEAHY. And first name? 

Ms. TILTON. Laurie. 

8

Chairman LEAHY. Laurie. I just wanted that for the record. Laurie, thank you for being here, too. 

I’m going to yield to Senator Schumer to introduce our next witness. 

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR 

FROM THE STATE OF NEW YORK 

Senator SCHUMER. Well, thank you, Chairman Leahy. I want to 

thank you and Senator Specter and Senator Cornyn for holding 

this very important hearing today. We also want to thank all three 

of our witnesses. I’m about to introduce Ms. Falkouski, who I know, 

but I want to thank Ms. Tilton and Ms. Schwantes for really moving, powerful testimony. I hope it melts some of the harder hearts 

in the Justice Department. 

Now it is my honor to introduce my constituent, Susan 

Falkouski. She is the widow of Assistant Chief Michael Falkouski 

of the Rensselaer fire department. Chief Falkouski suffered a 

stroke and died in the line of duty after responding to a fire in the 

middle of a blizzard in 2005. 

Over the past year, I’ve gotten to know Ms. Falkouski, and with 

her case, and I know that this is exactly the kind of tragic case 

that I was envisioning when I co-sponsored the bill that Senator 

Leahy introduced, when I voted in favor of it and pushed forward 

to become law. 

Yet, somehow the Department of Justice has twisted congressional intent and denied the majority of the heart attack and 

stroke victims that it has ruled on. In fact, at the time I first became involved, not in the bill but in what had happened, they had 

denied 34 out of 34 cases, including two cases in the Capital Region, one of Chief Falkouski, as well as the case of Chief Kevin 

Shea of the Ellsmere fire department, which is also in the Capital 

Region near Albany in New York State. 

Now, my colleagues, when you hear her story I think you’ll agree 

with me that Chief Falkouski’s case was precisely the kind of situation that we attempted to address in 2003 and that the Department of Justice is not acting in a manner we intended. 

Day in and day out, our firefighters and police officers put their 

lives on the line to take care of us and we have to do the same for 

their loved ones. Congress passed this law to give families of our 

fallen heroes a helping hand, not show them the back of it. 

In a sense, the way the Justice Department has administered 

this law, for many families it’s worse than having no law at all. It’s 

just so wrong and so unfair. When emergency workers’ lives are interrupted by a call and suddenly they go racing to a hazardous condition, medical science will tell you it rockets the heart race and 

stress level on the human body. 

It doesn’t matter whether they’re in a burning building, chasing 

a criminal, responding to a scene, or monitoring the situation from 

the street. These brave men and women put tremendous stress on 

their bodies, on their lives, and their lives on the line when they 

answer that call. 

Responding to an emergency, working at the scene, and the immediate period afterwards is inherently non-routine. That is not 

what human beings normally do in the course of a day. Most of us 

9

never experience that kind of stress in a year, 2 years, 3 years. 

Those kinds of situations, we know, place the human body under 

irregularly high stress levels. 

I’m glad to see that, in Dr. Herraiz’s testimony, he agrees with 

this and has issued ‘‘a binding direction to his staff’’ regarding 

these situations. That is a breakthrough, and I hope one that will 

not be an empty breakthrough, but one that will portend a better 

solution for Ms. Falkouski, Mrs. Shea, and the others who have 

been denied unfairly. 

Firefighters like Mrs. Falkouski’s husband don’t sit on their 

hands when our families need help. The Federal Government 

should not sit on its hands when these families need help. 

I hope stories like those of Mrs. Falkouski will continue to open 

the eyes of the Justice Department so it can finally understand 

how important the 2003 Hometown Heroes Act benefits are to families like the Falkouski family. Again, I want to thank Mrs. 

Falkouski for being here. I want to thank Chairman Leahy for introducing this bill and holding this hearing. 

And one other note of thanks. Sitting behind Mrs. Falkouski is 

Steve Mann, who has worked in my capital office for 9 years. Not 

only is he one of the best workers I’ve ever had in my 33 years as 

an elected official, and not only are we, the people of New York, 

blessed to have him, but he’s also an assistant chief, knew Chief 

Falkouski, and in fact took Chief Falkouski’s spot after he passed 

away in the Rensselaer fire department. 

Ms. Falkouski, thank you for being here. 

Chairman LEAHY. Thank you, Mrs. Falkouski. Please go ahead. 

STATEMENT OF SUSAN FALKOUSKI, RENSSELAER, NEW YORK 

Ms. FALKOUSKI. Good afternoon. I am here today to speak to you 

about my husband, Michael Falkouski. Michael was a wonderful 

man and a terrific husband. We were married for 38 years and we 

raised three children. Throughout Mike’s life he was driven to 

serve his community. He coached Little League when our children 

were little. He rode the volunteer ambulance. He was an elected 

city council member for 16 years. But most of all, he was very 

proud of his service as a volunteer firefighter for 37 years. 

The Rensselaer fire department is made up of a combination of 

volunteers and career firefighters. In 1993, Mike was appointed to 

the volunteer position of Deputy Fire Coordinator for Rensselaer 

County, where he served as a liaison between the Rensselaer City 

Fire Department and the neighboring mutual aid departments. 

In 1998, the Rensselaer City Board of Public Safety appointed 

Mike to be the 2nd Assistant Chief of the Rensselaer Fire Department. This made him the third highest-ranking member of the department and made him responsible for all of the firefighters under 

him at emergency scenes. 

He worked very hard at this job and took the responsibility very 

seriously. In Rensselaer, the fire chiefs don’t work shifts. They are 

always on call and they respond from their homes to emergency 

calls. Mike would frequently be called away from family events, 

dinners, or in the middle of the night to respond to a call. 

In the early morning hours of Sunday, January 23, 2005, the 

Capital Region of New York was in the midst of a major winter 

10

storm which would dump more than 20 inches of snow on the area. 

At 2:33 a.m., with the wind chill temperature at minus 11 degrees, 

the Rensselaer Fire Department received a call of an explosion in 

a quiet, residential area. The page alarm and call woke Mike up 

from a sound sleep, and he quickly dressed and headed out into the 

blizzard. 

Mike’s pickup truck was covered with more than a foot of snow 

and he rushed to clean it off as quickly as he possibly could so that 

he could head to the call. Other firefighters have told me how physically exhausting this was to them. While Mike was still cleaning 

his car, the first fire truck arrived at the scene. The firefighter 

driving the apparatus was Mike Mann, who was a lifelong friend 

of my husband’s. 

Firefighter Mann reported a heavy fire condition in a garage 

with a severely burned victim in need of treatment, and called for 

a second alarm for more help. As my husband made the treacherous response through the blizzard, he heard reports of a series 

of small explosions in the fire building, as well as frozen fire hydrants. Mike arrived a block away from the fire scene and parked 

his truck. 

He got out of his truck and was finishing getting his gear on 

when an aneurysm ruptured in his brain and he fell unconscious. 

He was discovered by a civilian, and at 2:54 a.m. it was reported 

that he was down. He began receiving CPR and AED treatment by 

a group of firefighters and EMTs and was transported to Albany 

Memorial Hospital. 

I was still sleeping when our dear friend, retired Fire Chief Phil 

Smith, called me and told me that Mike had been taken to the hospital and that he was on his way to pick me up. Despite the best 

efforts of the firefighters on the scene and the doctors at the hospital, the damage was too great and, as Mike wished, he was kept 

alive for several hours in hopes that his organs would be harvested. 

My husband died later that day. 

In all the years that Mike served as a firefighter, he told me not 

to worry; if anything ever happened, I’d be taken care of. One of 

the firefighter told me about how Congress had added heart attack 

and stroke to the PSOB program, and that I would likely qualify. 

Sadly, both were wrong. 

In March, I received a letter from Hope Janke of the Department 

of Justice informing me that they had denied my claim for death 

benefits under PSOB. The letter stated that the ‘‘act of responding 

at any hour of the day or night to the scene of a fire event is a 

routine engagement.’’ The letter also said that the below-zero 

weather, high winds, and 20 inches of snow had no significance. 

They failed to appreciate the added stress that the reported 

heavy fire, explosions, burned victim, low manpower, and frozen 

hydrants would have had on a chief as he made his way to the 

scene. He knew he was assuming responsibility for all of this 

chaos. I must tell you, I am not only offended, but angry at this 

letter. I feel that the Department of Justice trivialized my husband’s service, and it seems to me it was written by someone who 

has no idea of what it’s like to respond to an emergency. 

In fact, I think it is inherently non-routine for any human being 

to race towards a dangerous situation at a moment’s notice. The 

11

firefighters I have spoken to agree with me, and several of the noes 

who were there that night tell me that fire, in particular, was the 

most non-routine fire that had ever been to. 

I want to finish by saying that I hope you can change this thinking in the Department of Justice. If not for me, for all of the thousands of firefighters and their families out there who continue to 

respond at a moment’s notice to dangerous situations. I am sure 

that most of them think, like Mike and I did, that if tragedy ever 

came to them their family would be taken care of. If they are not, 

what kind of message does that send? 

I know that it’s already hard enough to get people to volunteer. 

Mike used to talk about how hard it is to recruit and keep people 

who are willing to devote the time and accept the danger. If the 

government considers this kind of service to be routine and denies 

benefits in circumstances like this, I really wonder how we will 

convince people to keep doing it. 

This is not something I would ever do in my life, to come down 

here and speak to you, but I feel it is that important that I have 

done so. Thank you. 

[The prepared statement of Ms. Falkouski appears as a submission for the record.] 

Chairman LEAHY. Thank you. I’m going to put into the record 

the letter from Chuck Canterbury, the president of the Fraternal 

Order of Police, who strongly supports this, and Chief Steven 

Westerman, the International Association of Fire Chiefs, for his letter in support of this, but also two policy memos issued by the Bureau of Justice’s Assistant Director Domingo Herraiz on October 2 

of this week, which I think are a step in the right direction. 

Senator Schumer and I have already discussed this. We’re not 

going to ask questions. There’s nothing that could be added to what 

you’ve said. We will stand in recess for 2 minutes while the panels 

change and give us a chance to come down and thank you personally. 

[Whereupon, at 3:19 p.m. the hearing was recessed and resumed 

back on the record at 3:21 p.m.] 

Senator SCHUMER. Well, thank you. I want to thank Mr. Herraiz 

for being here. Let me introduce Domingo S. Herraiz, who is the 

Director of the Bureau of Justice Assistance, the BJA. Before his 

appointment, Mr. Herraiz served on the Governor’s cabinet as Director of the Ohio Office of Criminal Justice Services. Prior to 

OCJS, Mr. Herraiz was the Executive Director of the Ohio Crime 

Prevention Association, the large State crime prevention association in the country. He also served as an executive committee chair 

of the Crime Prevention Coalition of America. 

The entire statement of Mr. Herraiz will be read into the record. 

Mr. Herraiz, you may proceed with your statement. You have 5 

minutes, and then answer questions. 

STATEMENT OF DOMINGO S. HERRAIZ, DIRECTOR, BUREAU OF 

JUSTICE ASSISTANCE, OFFICE OF JUSTICE PROGRAMS, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. HERRAIZ. Chairman Schumer, distinguished Members of the 

Committee, thank you for the opportunity to appear today on beVerDate 0ct 09 2002 11:23 Mar 14, 2008 Jkt 041157 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\41157.TXT SJUD1 PsN: CMORC
12

half of the Department of Justice’s Office of Justice Programs. As 

you know, I am the Director of the Bureau of Justice Assistance. 

I understand the serious issues surrounding the Public Safety 

Officers’ Benefits Program, or PSOB, Hometown Heroes claims. I 

first want to underscore our commitment to the law enforcement, 

firefighter—

Senator SCHUMER. Could you just pull the microphone up a little 

so our transcriber can hear you? Thank you. 

Mr. HERRAIZ. I want to underscore our commitment to the law 

enforcement, firefighter, and emergency responders’ communities. 

As the son of a firefighter and the nephew of a police officer, I am 

concerned and committed to do everything I can do to make certain 

the survivors of our fallen heroes receive the benefits that they deserve. 

I realize that there are several major concerns regarding Hometown Heroes claims: the delays and backlogs of Hometown Heroes 

claims, the interpretation of the term ‘‘non-routine’’, our request for 

medical records from survivors, the ratio of denials to approvals in 

the first year, and the outcome of specific cases. 

On December 15, 2003, the Hometown Heroes Act expanded the 

PSOB program to allow certain eligible heart attacks and strokes 

to be considered line-of-duty deaths. Afterwards, we undertook a 

complete revision of the regulations which, while needed, took 

longer than we expected. The resulting delays were unfortunate 

and of great concern to the public safety community, Members of 

Congress, and especially the survivors who have lost loved ones. 

To make the Hometown Heroes claims process run more smoothly, we have undertaken many changes. PSOB claims can now be 

submitted via the Internet. A new PSOB case management system 

is now online. This system is designed to generate monthly updates 

to survivors so they know the exact status of their claims. Benefit 

specialists, claims contractors, attorneys, hearing officers, and forensic pathologists have all been added to expedite the review process. 

We have partnered with the National Fallen Firefighters Foundation and the Concerns of Police Survivors to develop what’s titled 

the Local Assistance State Teams, the LAST teams, to work directly with survivors and agencies on their PSOB claims. The Department will issue the ‘‘Attorney General’s Guide to Hometown 

Heroes’’ to provide step-by-step guidance on the application and review process. 

And, perhaps most importantly, beginning this past August, each 

week the PSOB Office identifies the 12 oldest and most complete 

Hometown Heroes cases and drafts determinations for general 

counsel review. Having designed this strategy based on the insight 

from our first year of processing these claims, these changes will 

allow us to have 144 Hometown Heroes cases in legal or medical 

review in just 3 months. We are fully committed to this 12-in-aweek strategy until all claims have been processed and normalized, 

to about 7 new cases per month by March 2008. 

Some of our stakeholders have also expressed concern that the 

term ‘‘non-routine’’ is ambiguous, and that in some cases, an activity which is regularly done by a public safety officer has been considered routine. Sharing those concerns, I ordered a complete reVerDate 0ct 09 2002 11:23 Mar 14, 2008 Jkt 041157 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\41157.TXT SJUD1 PsN: CMORC
13

view of all Hometown Heroes denials. While ‘‘non-routine’’ has been 

referenced in determinations, thus adding to the sense that the 

term was used to deny cases, to date, no claim has been denied 

solely because the activity was deemed ‘‘routine’’. 

Understanding this was a concern to firefighters, law enforcement, and survivors, and to ensure consistency in the future, I provided binding direction so that no activity will be considered routine simply because the officer might engage in it regularly. Additionally, this directive clarifies that emergency calls will be considered non-routine for Hometown Heroes purposes. 

Another concern raised is the request that Hometown Heroes 

survivors provide up to 10 years of medical history. Early in the 

Hometown Heroes process we were advised by forensic pathologists 

to request these records, then quickly realized that they were not 

needed in many cases. As a result, we have reduced the burden on 

survivors by not requesting these records in most cases. I have recently provided binding direction on this issue as well, specifying 

that medical records will be requested only in rare circumstances 

where the records might serve to support the claim. 

A further concern is the ratio of Hometown Heroes approvals to 

denials. As we continue to partner with the national stakeholders 

and review the wide range of cases submitted, we have discovered 

critical information points that can positively impact claim outcomes. 

Based on our experience and increased outreach to agencies and 

claimants regarding the officer’s activities in the 24-hour period to 

the heart attack or stroke, I believe we can reduce the number of 

claims determined and denied on incomplete evidence and, in turn, 

increase the number of approvals. 

Finally, there are concerns about the outcomes of specific cases. 

While the Department cannot speak publicly regarding individual 

ongoing cases, I am confident that increased outreach efforts will 

help agencies and survivors provide all evidence needed to effectively support their claims, including those claims now on appeal. 

Please be assured that the Department of Justice is committed 

to ensuring that all PSOB claims are administered in a compassionate, fair, and timely way. I have served the criminal justice 

community for over 22 years, and as BJA’s Director I have never 

forgotten the values and the life lessons that I was taught in a public safety household. 

Mr. Chairman, I’d be happy to answer your questions and I 

thank you for allowing me the opportunity. 

[The prepared statement of Mr. Herraiz appears as a submission 

for the record.] 

Senator SCHUMER. Well, thank you, Mr. Herraiz. I must say, 

your testimony gives us some hope that things are changing, and 

will change. I can tell you, as one of the co-sponsors of the Act, we 

did want these kinds of changes all along. 

In fact, April of 2003, I stated very clearly that ‘‘the old standard 

before the Act was implemented was very narrow and ignored tremendous stress and strain that first responders are under when 

they respond to a call’’. So it seemed inherently unfair to me, Senator Leahy, Senator Specter, my colleagues who are involved in 

this, that the families whose loved ones died while responding to 

14

a fire were treated differently than those who died while fighting 

a fire when the stress on their bodies was often quite equal. 

Both represent acts of heroism, of being willing to make the ultimate sacrifice in service. Both deserve our honor in the form of 

compensation for their families. That’s why we modified the law to 

cover situations when a first responder died as a result of stressful 

circumstances surrounding a call to action. We carefully tailored 

this language to avoid being too broad. 

We didn’t want to include situations where someone who’s a first 

responder passes away in non-stressful situations, like sitting 

around the firehouse waiting for a call, or a volunteer EMT who 

might be waiting for a call watching television. Those are routine 

to anyone’s daily life and not covered. 

But the three cases we’ve heard here are not routine in the least. 

You know that, I know that. We all know that. So that’s why there 

is such frustration here, because it seemed like the Justice Department was going out of its way to defy congressional intent to deny 

these widows, these families, their just desserts. 

So when you met with my staff back in May, one of your colleagues stated it was not the position of the Justice Department to 

exclude all cases in which a firefighter or police officer died while 

responding to a call. He stated DOJ considered such activities 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 ‘‘the act of responding at any hour of 

the day or night to the scene of a fire event is a routine engagement.’’ There’s a direct contradiction in her denial. And I don’t 

know the letter of Mrs. Schwantes, but I am sure there are many 

others. 

So when presented with this letter back in May, you and your 

colleagues assured my staff, despite the reason for denying Ms. 

Falkouski, this wasn’t the position of the Justice Department. The 

new testimony makes that crystal clear. I’m very glad to hear it. 

So my question to you is, first, if the new policy is the policy of 

the Justice Department, what are we going to do with the claims 

that were denied, seemingly under an old policy, if an unstated policy? And I don’t want to put you in a legal box here, but I certainly 

want to get relief for Mrs. Falkouski, Mrs. Schwantes, and the 

many others who are like that. 

So my question really is aimed at the future. What are we going 

to do to correct the situation? First, in addition to the directive, 

what steps have been taken to make sure that other claims are not 

denied due to this misinterpretation of the law? 

Second, I know you can’t discuss specific cases, but what are we 

going to do with the appeals of the claims that were initially rejected, seemingly under an interpretation of the law that the Justice Department no longer holds? Those are my two questions, and 

they’re said with respect and appreciation for your being here and 

wanting to be helpful. 

Mr. HERRAIZ. Thank you, Mr. Chairman. In regards to your first 

question and the directives, the binding directives that we’ve 

issued, it’s important for me to stress how important the time period to get there really was. You had referenced the meeting in 

15

May. We have watched these, both by working with the national 

organizations, even local fire and police services, to really try to figure out, what are the information points as related to the regulations? How can we get to the next step? 

That’s when we identified that, coming back from your staff 

meeting as well, to review—and I mentioned to actually go and review all of the old cases and to make sure of the determinations. 

We basically discovered that the terminology that we used in those 

letters was not the best of terminology, and that’s why we went 

back and reviewed each one. 

Then the recent decision to issue the directive so we can make 

it clear and build a foundation for the future, to guarantee that 

this will be followed in the PSOB Office from this day forward. 

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

The second aspect as far as the cases that are on appeal where 

those individuals—approximately 26 survivors have appealed the 

decision of the PSOB office. Right now, those have gone to a hearing officer who will go out into the community, work with the surviving family to gather additional information. They will come back 

and provide a report back as the hearing officer as to new information that was found on the part of the claim. 

There are two parts to the process of the appeal, the BJA Director, myself, is the final step. I’m the final, the second step, in the 

process. It gives me the opportunity to look at all the information 

in the file, which I have not yet seen on any of the cases—again, 

these cases I’m looking for coming back from the hearing officer. 

So we’ll have the opportunity to implement those two directives 

and share those with the hearing officers because they have not 

reached my desk yet. 

Those cases which we have denied, the PSOB Office director will 

personally reach out to each one of those families, the surviving 

families, share with them what the directive is, what it means, and 

give them the opportunity to figure out if, at that point, they would 

like to appeal to the director of BJA through the hearing process, 

as established in the regulations. 

Senator SCHUMER. And I take it then that this new information 

will be looked at under the guise of this directive, the new directive, even if it’s on appeal? 

Mr. HERRAIZ. That’s correct. 

Senator SCHUMER. Okay. That is good news. Hopefully that 

should get us some justice for some of these families, and we’ll be 

watching carefully. But we do, I think, speaking for myself, and I 

would imagine the whole committee, appreciate, shall we say, not 

the change in law, because I know you’re bound by that, but the 

change in attitude of the Justice Department in this regard, and 

we’re going to be looking very carefully to hope that that attitude 

shows through, not only on the new cases which are very important, but on the appeals. It would just be unfair to hold these 26 

families to a different standard than the new standard that is forward. 

Senator Leahy? 

Chairman LEAHY. I was just going to add, I read your testimony 

before and was encouraged by it. I want to thank you for coming 

16

here. You’ve heard some very compelling stories. But, unfortunately, there are many, many others like it. I hope you will take 

a look at Mrs. Schwantes and Mrs. Falkouski’s files, review that 

in light of all this. Ms. Tilton has gotten notice that that’s going 

to be looked at, and that’s good. But there are so many others we 

could have had here testifying. I am encouraged, Director, very 

much so. I want you to know I appreciate that. 

Mr. HERRAIZ. Thank you, Senator. And you have our commitment that we will absolutely look very hard at these cases and 

make sure, when they reach us on appeal, as well as the cases that 

moves forward—this is an issue that’s very important to me. My 

brother-in-law is a current firefighter, my father’s retired, and I 

know what it’s like to stand next to a firefighter and have to go 

through this. I can only imagine what it would be like had I lost 

my father or was to lose my brother-in-law. 

Chairman LEAHY. Thank you, Director. 

Thank you, Mr. Chairman. 

Senator SCHUMER. Thank you, Mr. Chairman. 

Just before I call on Senator Cardin—my questions are finished—I’d just ask unanimous consent, first, to add the letter denying Ms. Falkouski’s initial claim to the record, and a statement 

Senator Biden has submitted for the record. Without objection, 

they will be. 

[The prepared statement of Senator Biden appears as a submission for the record.] 

Senator SCHUMER. Senator Cardin? 

STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR 

FROM THE STATE OF MARYLAND 

Senator CARDIN. Thank you, Mr. Chairman. Let me thank you 

for your testimony. I must tell you, as I read the material for this 

hearing, I was very, very concerned bout the 300 cases or applications that have been filed and so few getting positive results, and 

the length of time, and then realizing that each one of these cases 

is a family. We saw three today, and I think that helped. 

I really do thank Senator Leahy for putting together that first 

panel, because I think it does point out that we are affecting people’s lives. They’ve gone through enough stress, enough anxiety 

that they don’t need to be put off as they have under the bureaucratic problems of implementing this statute. So, I thank you for 

your testimony. 

I just want to add one more word of caution. It seems to me relatively clear that Congress intended that for our first responders 

who have suffered from a heart attack and died, in which it was 

clear that their occupation contributed to that circumstance, that 

they would be entitled to benefits. 

I read your testimony and read some of the technical provisions 

and the interpretations of the technical provisions and I understand we’re all bound by the law. We certainly aren’t bound by this 

type of delay in implementing the law, but you’re bound by the law. 

I want to make sure, at the end of the day, that the intent of Congress is, in fact, carried out. 

If, in your review, there are ambiguities that continue to be used 

to deny benefits to families that should be receiving those benefits, 

17

I want to know about that because I think that we want to make 

sure that those that are entitled to these benefits, as Congress intended, get those benefits. So I just really want to underscore that. 

This shouldn’t be an adversarial procedure. 

Obviously we have to have a review process. I’m not suggesting 

that we can’t do this without a review process. We have to have 

that. But it shouldn’t be an adversarial type of a process. It should 

be one in which, when certain standards are met, the benefits are 

given and it should be done in a timely way. That has not been, 

at least as I see it, the record to date. 

I’d just add my support to the comments made by my colleagues, 

and again, I thank you for the commitments and statements that 

you’ve made today. Hopefully we’ll be able to move forward and get 

the benefits to the families that are so richly deserved. Thank you. 

Senator SCHUMER. Thank you. Thank you, Director Herraiz. 

I want to thank, again, the families for coming, Falkouski, 

Tilton, and Schwantes, and all of those who came in the audience 

to support this good cause. 

Without further ado, the hearing is adjourned. 

[Whereupon, at 3:40 p.m. the hearing was adjourned.] 

Questions and answers and submissions for the record follow.]

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