The passing of the Honor Act provides American First Responders and their families the promise of greater support than ever before provided at the Federal level. The Honor Act passed both chambers of Congress with clear bipartisan support (earning 315 votes in the house and 77 in the Senate). This type of support, while unfortunately rare in our current political climate, suggests lawmakers’ awareness of the ever present need to protect our First Responders. The Honor Act was officially signed into law by President Donald Trump on Thursday, December 19, as part of the National Defense Authorization Act. 

The Honor Act and Its Impact on the Public Safety Officer’s Benefits (PSOB) Program

The Honor Act supports Public Safety Officers and their families by updating the Public Safety Officers’ Benefits (PSOB) program to recognize occupational cancer as a line-of-duty injury and/or cause of death that would qualify the Officer and/or their families to benefits. The Public Safety Officer’s Benefits (PSOB) Program is a benefits system meant extend necessary benefits to injured public safety officers or their surviving family members. The PSOB Program provides three major types of benefits: disability benefits, education benefits, and death benefits. 34 U.S.C. Section 10281 determines when individuals should receive benefits under this system.  

To be eligible to receive PSOB benefits, the injured officer or decedent must be a “public safety officer” as of the time of their injury, as defined by the PSOB. 34 U.S. Code § 10284(14). Some individuals who qualify are Law Enforcement Officers, Firefighters, Employees of the Federal Emergency Management Agency, Employees of state, local or tribal emergency management or civil defense agencies, Rescue Squad Members, and Ambulance Crew Members. (See 34 U.S. Code § 10284(14)).  

If the Officer unfortunately perishes due to his/her injury, 34 U.S.C. Section 10281 controls who would constitute a beneficiary of a given public safety officer who would be entitled to benefits in their stead. Typically, living spouses and living children will constitute beneficiaries. In the absence of either, the code controls the next possible beneficiary. (See 34 U.S.C. Section 10281).    

Cancer Claims Prior to the Honor Act

Prior to the passing of the Honor Act, Officers who were diagnosed with cancer were left entirely unprotected and vulnerable. Despite being a leading cause of death amongst American First Responders, and the leading cause of death amongst American Firefighters, cancer was not an eligible injury to receive support through the PSOB system. Instead, First Responders only received benefits for physical injuries received in the line of duty or for death from duty-connected heart attacks, strokes, mental health conditions, and 9/11 related illnesses. The Honor Act addresses this weakness by expanding the PSOB program to cover certain cancers and cancer-related deaths!

Cancer Claims Following the Honor Act

Specifically, the Act establishes a presumption that closely mirrors that found in several states’ Workers’ Compensation systems. However, there are few limitations that will prevent the Act’s application to some cases, and in some cases arbitrarily exclude some Officers from its benefit system. 

Defining Carcinogens and Cancer

Initially, the Act defines both “Carcinogen” and “exposure related cancer” in order to specify its coverage and streamline its application. Pursuant to the Act, a carcinogen is an agent that is “(i) classified by the International Agency for Research on Cancer under Group 1 or Group 2A; and (ii) reasonably linked to an exposure related cancer.” This narrow definition of carcinogen is intended to limit the need for litigation regarding what would constitute a carcinogenic exposure. However, this narrow definition may exclude some Officers from coverage entirely, especially in cases of newly discovered or under-researched carcinogens. 

Likewise, pursuant to the Act, the term “exposure related cancer” is limited to define what types of “cancers” will be covered. Therein, “exposure related cancer” means: bladder cancer, brain cancer, breast cancer, cervical cancer, colon cancer, colorectal cancer, esophageal cancer, kidney cancer, leukemia, lung cancer, malignant melanoma, mesothelioma, multiple myeloma, non-Hodgkin’s lymphoma, ovarian cancer, stomach cancer, testicular cancer, thyroid cancer, and any for on cancer that is considered a WTC-related health condition under section 3212(a) of the Public Health Service Act (42 U.S.C. 300mm-22(a)). 

While the act expressly limits its coverage to the named cancers, it does provide a means for parties to petition the Director to add additional forms of cancer to this list, which is intended to prevent unintentional exclusions from the system. Nevertheless, by limiting the definition of “exposure related cancer,” this bill may unintentionally place the onus on officers and/or their surviving family to prove that a rare or new form of cancer would qualify. In such cases, those Officers and their families may already be in a poor position to argue since they are attending to a rare or atypical type of cancer. Thus, it will be of little surprise if this express list leads to Officers with rare forms of cancers being restricted de facto by reason of a lack of resources to self-advocate. 

The New Cancer Presumption

Regardless, if the Officer’s cancer falls within the categories established, the Act creates a presumption that the cancer is a line of duty injury and would qualify for the appropriate education, disability or death benefits. The statute states that, “The exposure of a public safety officer to a carcinogen shall be presumed to constitute a personal injury within the meaning of subsection (a) or (b) sustained in the line of duty by the officer and directly and  proximately resulting in death or permanent and total  disability if:

1.  the exposure occurred while the public safety officer was engaged in line of duty action or activity;
2. the public safety officer began serving as a public safety officer not fewer than 5 years before the date of the diagnosis of the public safety officer with an exposure-related cancer;
3. the public safety officer was diagnosed with the exposure-related cancer not more than 15 years after the public safety officer’s last date of active service as a public safety officer; and
4.  the exposure-related cancer directly and proximately results in the death or permanent and total disability of the public safety officer.

The bill also explicitly provides an exception to the presumption where “competent medical evidence establishes that the exposure of the public safety officer to the carcinogen was not a substantial contributing factor in the death or disability of the public safety officer.”

Here, we can see several potential limitations in the application of the presumption as passed. The first is the timeline requirements. According to this act, the Officer will only benefit from the presumption if he/she had worked in that capacity for at least 5 years prior to the diagnosis AND it had not been more than 15 years since their last date of active service. While the logic for these limitations is obvious, it arbitrarily cuts off benefits to some Officers in contradiction to our current understanding of cancer latency periods. 

Of course, there are many types of cancers that cannot develop in under 5 years. However, modern studies suggest particularly aggressive cancers, such as certain lymphomas, can develop in as little as six months. Likewise, while many cancers will not develop more than 15 years after an exposure, some solid tumors have known latency periods of up to 30 years. With that, the arbitrary time requirements included in this Act will most certainly limit recovery for those Officers who unfortunately develop cancers with relatively short or long latency periods. 

This timeline issue is only further complicated by this Act’s use of “diagnosis” as opposed to “development” when determining when to set the clock. The date of diagnosis for many types of cancers is entirely arbitrary and oftentimes the product of luck or else regular testing procedures for the most common cancers. As such, many cancers may be diagnosed earlier or later for no reason other than by chance! With that, having the date of diagnosis be the sole determination as to an Officer’s capacity to recover is asinine. 

California Workers’ Compensation law recognizes the issue of limiting itself to the date of diagnosis and so includes both the terms “manifest” and “develop” in its statutes to ensure that an injured worker would not be excluded due to a late or early diagnosis alone. In California Workers’ Compensation law, “manifest” refers to the first date that the cancer expresses itself either through symptoms or diagnosis, while “develop” refers to the more expansive period in which the cancer was progressing. By including both, California Workers’ Compensation Law allows recovery regardless of whether a late diagnosis would prevent it if medical evidence can illuminate a reasonable development period that would allow the worker to qualify. However, this same language is NOT repeated in the Honor Act and so its absence may lead to some Officers being excluded simply due to the date of their diagnosis!

Finally, the Act creates a relatively low bar to establish an exception to the presumption. While under California Workers’ Compensation Law, the cancer presumption for firefighters and police officers can only be rebutted by evidence that the carcinogen the member was exposed to is not reasonably linked to the disabling cancer, here, the Honor Act allows the cancer presumption to be excepted where the carcinogen is not a substantial contributing factor. This is a significantly lower bar which will allow things such as genetic predispositions and other non-industrial exposures to except the presumption. Additionally, this lower bar will likely lead to the presumption being excepted where there is insufficient research to suggest whether a cancer is attributable to a particular carcinogen. 

Conclusion

The Honor Act is a fantastic first step towards providing additional protections for our Public Safety Officers who are unfortunately diagnosed with cancer. However, the Act is imperfect, and its terms will inherently limit who will receive benefits through it. Advocacy will be necessary to ensure that its current from does not prevent vulnerable officers and their families from accessing the benefits they are entitled to.