RULE 143.00.92-001 - Arkansas Crime Victims Reparations Board Rules and Regulations

RULE 143.00.92-001. Arkansas Crime Victims Reparations Board Rules and Regulations

Rule No. 1

TITLE AND OPERATIVE DATE OF THE ACT

The title of the Act under which these rules and regulations are being promulgated is known as the Arkansas Crime Victims Reparations Act, hereinafter referred to as the Act.

The operative date of the Act is July 1, 1988.

Rule No. 2

DEFINITIONS

BOARD - Means the Arkansas Crime Victims Reparations Board, hereinafter referred to as the Board.

CLAIMANT - Means any of the following persons applying for reparations under this act;

a. a victim.

b. a dependent of a victim who has died because of criminally injurious conduct, or

c. a person authorized to act on behalf of any of the persons listed above.

VICTIM - Means a person who suffers bodily injury or death as a result of criminally injurious conduct occurring within the State of Arkansas.

DEPENDENT - Means a natural person wholly or partially dependent upon the victim for care or support, and includes a child of a victim born after the death of the victim where the death occurred as a result of criminally injurious conduct.

CRIMINALLY INJURIOUS CONDUCT - Means an act which occurs or is attempted in this state that results in personal injury or death to a victim which is punishable by fine, imprisonment or death. Such term shall not include acts arising out of the operation of motor vehicles, boats or aircraft unless the acts were committed with the intent to inflict injury or death or unless the acts committed were in violation of the Omnibus DWI Act, specifically Act 549 of 1983, as amended. A person shall be deemed to have committed criminally injurious conduct not withstanding that by reason of age, insanity, drunkenness, or other reason he was legally incapable of committing a crime.

ECONOMIC LOSS - Means monetary detriment consisting only of allowable expense, work loss, replacement services loss and, if injury causes death, economic loss and replacement services loss of a dependent, but shall not include non-economic loss.

ECONOMIC LOSS OF A DEPENDENT - Means loss after death of the victim of contributions of things of economic value to the dependent, not including services which would have been received from the victim if he or she had not suffered the fatal injury, less expenses of the dependent avoided by reason of death of the victim.

ALLOWABLE EXPENSE - Means charges incurred for needed products, services and accommodations, including, but not limited to, medical care, rehabilitation, rehabilitative occupational training and other remedial treatment and care. It also includes a total charge not in excess of Two Thousand Five Hundred Dollars ($2,500) for expenses related to funeral, cremation or burial. Such term shall also include the cost of legal services for the establishment of guardianship for minor children as per Rule 18 of the Arkansas Crime Victims Reparations Board Rules and Regulations.

WORK LOSS - Means loss of income from work the victim would have performed in their regular course of employment if such person had not been injured or died, reduced by any income from substitute work actually performed by the victim or by income the victim would have earned in available appropriate substitute work that he or she was capable of performing but unreasonably failed to undertake. Individuals filing claims must provide clear and convincing evidence of employment.

REPLACEMENT SERVICES LOSS - Expenses reasonably incurred in obtaining ordinary and necessary services in lieu of those the victim would have performed, not for income, but for the benefit of self or family, if the victim had not been injured or died-

REPLACEMENT SERVICES LOSS OF A DEPENDENT - Means the loss reasonably incurred by dependents after death of the victim in obtaining ordinary and necessary services in lieu of those the deceased victim would have performed for their benefit had the deceased victim not suffered the fatal injury, less expenses of the dependent avoided by reason of death of the victim and not subtracted in calculating the economic loss of the dependent,

NON-ECONOMIC DETRIMENT - Means pain, suffering, inconvenience, physical impairment and non-pecuniary damage.

COLLATERAL SOURCE - Means a source of benefits or advantages for economic loss for which the claimant would otherwise be eligible to receive compensation under this Act which the claimant has received, or which is readily available to the claimant including but not limited to any one or more of the following:

(a) the offender,

(b) the government of the United States or any agency thereof, in the form of benefits, such as social security, medicare and medicaid, a state or any of its political subdivisions or an instrumentality of two or more states, unless the law providing for the benefits or advantages makes them in excess of or secondary to benefits under this Act,

(c) state-required temporary non-occupational disability insurance.

(d) workers' compensation,

(e) wage continuation programs of any employer,

(f) proceeds of a contract of insurance payable to the claimant for loss which the victim sustained because of the criminally injurious conduct, or

(g) a contract providing prepaid hospital and other health care service or benefits for disability.

Rule No. 3

TYPES OF COMPENSATION AVAILABLE

Compensation is available for economic loss sustained by a victim or dependent arising from criminally injurious conduct of another including those which occurred as a result of violation of the Omnibus DWI Act, Act 549 of 1983. Economic loss would include: allowable expenses, work loss and replacement services loss and, if injury causes death, economic loss and replacement services of a dependent. Future economic loss is also compensable but may be reduced or discontinued if recipient's circumstances change. (Examples of allowable expenses may include but are not limited to the following: rehabilitation, rehabilitative occupational training, medical, psychiatric, and dental expenses, etc.)

Rule No. 4

MEMBERSHIP AND OFFICERS OF THE BOARD

The Board shall consist of five (5) members appointed by the Governor to serve four (4) year terms and until the successor is appointed and qualified. At least three (3) members of the Board shall be persons admitted to practice law in this state. Of the first members appointed, two (2) shall be appointed for a term of two (2) years, two (2) shall be appointed for a term of three (3) years, and one shall be appointed for a term of four (4) years. Vacancies shall be filled in the same manner.

Rule No. 5

PURPOSE OF THE BOARD

The purpose of the Board shall be to hear and decide all matters relating to Crime Victims Reparations applications. The Board shall have the authority to award compensation to victims of crime for economic loss arising from criminally injurious conduct if satisfied by a preponderance of the evidence that the requirements for compensation have been met.

Rule No. 6

POWERS AND DUTIES OF THE BOARD

The Board shall have the power:

1. To hear and determine all matters relating to applications filed with the Arkansas Crime Victims Reparations Board for compensation, including the power to reinvestigate or reopen claims without regard to the statutes of limitations.

2. The Board, or the Administrator, on behalf of the Board, may subpoena witnesses, compel their attendance, enter orders, require the production of records and other evidence, administer oaths or affirmations, conduct hearings and receive relevant evidence. The Board shall be considered in continuous session for the purposes stated above.

3. To regulate its own procedures except as otherwise provided in the Act.

4. To adopt rules and regulations to implement the provisions of the Act.

5. To define any term not defined in the Act.

6. To prescribe forms necessary to carry out the purposes of the Act.

7. To request access to any reports of investigations or other data necessary to assist the Board in making a determination of eligibility for compensation.

8. To publicize the availability of compensation and information regarding the filing of claims therefore,

9. To order the claimant to submit to a mental or physical examination or order the autopsy of a deceased victim if the results would be material to a claim.

10. To require the claimant to supply any additional medical or psychological reports available relating to the injury or death for which compensation is claimed.

11. To deny, withdraw or reduce an award of compensation upon finding that the claimant did not fully cooperate with the appropriate law enforcement agencies,

12. To reconsider a decision granting or denying a compensation award, based on its own motion or on request of the claimant.

13. To suspend the application for compensation proceedings pending disposition of a criminal prosecution that has been commenced or is imminent, but the Board may make a tentative award.

14. To join in a civil action as a part plaintiff to recover the compensation awarded if the claimant brings such action.

15. The Board shall be provided such office, supplies, staff and secretarial services as necessary by the Office of the Attorney General.

16. All necessary and reasonable expenses of the Board shall be paid for from the Crime Victims Reparations Revolving Fund.

17. The Board shall have the duty of preparing and transmitting an annual report to the Governor.

Rule No. 7

MEETINGS OF THE BOARD

1. The Board shall meet on the third Thursday of each month for ten months each year, or at the call of the Chairperson, at 9:30 a.m.

2. The Chairperson shall serve as presiding officer at all official meetings of the Board. In the absence of the Chairperson, the remaining Board members present at the meeting may designate a president officer for that meeting.

3. The chairperson shall have the authority to vote on all matters coming before the Board.

4. A quorum shall consist of three (3) members.

5. In the event of a tie vote the matter or matters shall be continued to the next meeting.

6. The order of business at any meeting of the Board shall follow the agenda prepared in advance of the meeting. Such other matters may be brought before the Board as shall be requested by any member in writing and presented to the Chairperson.

7. Proxies to vote shall not be permitted at the Board meetings.

8. Administrative staff shall be responsible for preparation of minutes for each Board meeting.

9. Roberts Rules of Order, Revised, shall govern all meetings of this Board.

Rule No. 8

ELIGIBILITY CRITERIA FOR COMPENSATION

1. The criminally injurious conduct leading to the filing of the reparations claim must have occurred in Arkansas.

2. The incident must have occurred on or after July 1, 1988.

3. The incident must have been reported to law enforcement officials within 72 hours or would have been reported within the period of time except for good cause.

4. The application for compensation must be filed within one (1) year of the incident, unless the Board finds good cause for failure to file a timely claim.

5. The victim must have suffered personal injury or death as a result of the criminal action of another.

6. The claimant and/or victim must to the extent able, have cooperated with law enforcement officials during their investigation.

7. The net amount of compensation requested in the application must not have been paid by another source.

8. The claimant and/or victim was not the offender or an accomplice of the offender.

9. The injury or death must not have been the result of negligent maintenance or use of a motor vehicle unless the acts are committed with the intent to inflict injury or death or unless the acts committed were in violation of the Omnibus DWI Act, Act 549 of 1983.

10. Compensation may be diminished to the extent or the degree of responsibility for the cause of the injury or death attributable to the victim, as determined by the Board.

2. Compensation for funeral expenses of deceased victims may not exceed $2,500.

a. Collateral sources of income such as burial policies, workers' compensation, etc. will be applied towards the total cost of the victim's funeral.

b. Life insurance may not be used as a collateral source when dependents of the deceased victim remain and may benefit from the proceeds of this policy.

c. Life insurance will be utilized as a collateral source and be applied against funeral expenses in those cases involving no surviving dependents.

3. Compensation for work loss, replacement services loss, dependents economic loss and dependent's replacement services loss may not exceed Two Hundred Dollars ($200.00) per week.

4. The Board may provide for the payment to a claimant in a lump sum or in installments.

5. The Board shall pay all or part of an award directly to service providers unless evidence of prior payment for services is submitted with the claim.

6. The Board may also provide for payment of legal fees, not to exceed two-hundred fifty dollars ($250.00) - plus filing fees, of a guardianship when an award has been made to a minor child as per Rule 18 of the Arkansas Crime Victims Reparations Board Rules and Regulations. Legal services expense shall not be deducted from the otherwise compensable amount.

7. Upon request of the claimant, the Board may convert future economic loss, other than allowable expense, to a lump sum, but only upon a finding by the Board of either of the following:

a. That the award in a lump sum will promote the interests of the claimant;

b. That the present value of all future economic loss does not exceed One Thousand Dollars ($1,000.00).

8. An award payable in installments for future economic loss may be made only for a period that the Board can reasonably determine future economic loss and may be modified by the Board upon finding that a significant change in circumstances has occurred.

9. Approved claims will be paid in the order of their approval by the Board as funds become available.

Rule No. 11

GARNISHMENT AND ASSIGNMENT OF AWARD

1. An award shall not be subject to execution, attachment, garnishment or other process, except that an award for allowable expense shall not be exempt from a claim of a creditor to the extent such creditor has provided products, services or accomodations, the costs of which are included in the award.

2. An assignment by the claimant to any future award is unenforceable, except:

a. For work loss to assure payment of court-ordered alimony, maintenance or child support; or

b. For allowable expense to the extent that the benefits are for the cost of products, services or accommodations necessitated by the injury or death.

Rule No. 12

APPLICATION REVIEW PROCEDURE

1. A victim, dependent of a victim, or person legally acting in behalf of the victim, must first secure a copy of the official Victims Reparations Application Form from their local prosecuting attorney's office, sheriff's office, or from the Board. In the event assistance is needed by the applicant in completing the form such assistance will be provided by the Victim-Witness Coordinator, by the prosecuting attorney's staff in districts that have no Victim-Witness Coordinator, or by the staff of the Board in Little Rock.

2. A form must be completed, appropriate documentation attached, signed and received by the Board within one (1) year of the incident unless the Board finds good cause for failure to file a timely claim.

3. The staff of the board shall log the application as being received and begin a thorough review and verification process.

4. The Board and staff have the authority to conduct investigations and/or request any additional information from the victim, the investigating law enforcement agency, medical personnel and/or facilities, witnesses, employers and others as may be deemed necessary for the proper review and verification of the application.

5. The staff shall make a thorough analysis of the application and attachments, then prepare staff comments relative to the application which shall be filed in the application folder and be provided to the Board as supportive data along with the agenda when the application is to be considered by the Board.

6. Once the application has been cleared (staff review and comments completed), the application will be placed on the next appropriate Board agenda for consideration. An application must be cleared at least fifteen (15) calendar days prior to a Board meeting for consideration at that meeting. Those applications not cleared at least fifteen (15) calendar days prior to a regular meeting shall be considered at the Board meeting the following month, unless it is determined during staff review the applicant will suffer undue financial hardship during this period. In this event, an advance award may be considered. The advance award will be deducted from the final amount or shall be repaid by and recoverable from the applicant to the extent it exceeds the final award.

7. All agendas and supporting documentation necessary shall be mailed to the Board ten (10) calendar days in advance of the Board meeting.

8. Notification of Board meetings shall be made in compliance with the Open Meeting Law. Copies of the meeting agendas giving date, location and time of meetings shall be posted in conspicuous places on the premises of the building wherein the Board meetings will be held.

9. Applicants whose compensation applications are to be considered by the Board will be mailed notification of the meeting fourteen (14) calendar days in advance and will have the opportunity to appear and be heard and to offer evidence and argument on any issue relevant to the claim. Claimants may also examine witnesses and offer evidence in reply to any matter of an evidentiary nature in the record relevant to the claim.

10. The Board shall consider the applications for compensation on the agenda and render their decision. The applicants shall be mailed notification of the Board decision within fifteen (15) calendar days of the Board meeting wherein the application was considered.

Rule No. 13

ADVANCE (EMERGENCY) AWARD OF COMPENSATION

The Board may make or authorize the Administrator to make an advance (emergency) award of compensation to the applicant prior to taking action on an application and pending a final decision when it appears the claim is one for which compensation is probable and undue hardship will result to the applicant if immediate payment is not made. The applicant may request in the application that consideration be given for an advance award and provide justification for such award. A decision denying emergency relief shall not be appealable.

The amount of such advance (emergency) award shall not exceed Five Hundred dollars ($500.00). Any advance award shall be deducted from the final compensation made to the applicant. If the final award amount is less than the amount of the advance award, the applicant must repay the excess to the Board.

Rule No. 14

APPEALS PROCEDURE

1. In the event an application for compensation is approved in a modified form or denied, the Administrator of the Board shall notify the claimant by certified mail, return receipt requested, within fifteen (15) calendar days of the Board's action, setting forth the basis of the Board's decision.

2. The claimant shall have the right to appeal and may do so by notifying the Administrator of the Board, in writing, by certified mail, return receipt requested, of the intent to appeal within thirty(30) calendar days of the date of the notification letter setting forth the Board's decision.

3. The claimant shall then be entitled to a formal hearing before the Board. The hearing shall be held within sixty (60) calendar days of the date of the notice from the claimant stating intent to appeal.

4. In an appeals hearing, all parties shall be afforded an opportunity to appear and be heard. A record of the procedings shall be made and shall be transcribed upon request of any party, who shall pay transcription costs unless otherwise ordered by the Board.

5. The Board may, without a hearing, settle a claim by stipulation, agreed settlement, consent order or default.

6. The Board shall render its decision relative to the appeal within ten (10) calendar days of the formal hearing and the applicant will be notified by mail.

Rule No. 15

SUBROGATION RIGHTS OF THE BOARD

Upon an award of compensation by the Board for personal injury or death, the Board shall be subrogated to the cause of action of the applicant against any third person responsible for such injury or death, and shall be entitled to bring action against such person for the amount of damages sustained by the applicant. If the amount recovered and collected in the action is greater than the amount awarded by the Board to the applicant, the Board shall pay the balance to the applicant.

Rule No. 16

PENALTY FOR FALSE CLAIMS

The filing of a false claim for compensation pursuant to the Arkansas crime Victims Reparations Act shall constitute a Class D Felony.

Rule No. 17

BOARD STAFF

The Administrator of the Board shall be the Chief Executive Officer of the Board staff. He/she shall be hired by the Attorney General with the advice and consent of the Board. He/she shall be responsible for the administration of the rules, regulations, policies and procedures promulagated by the Board, pursuant to the Administrative Procedure Act, and within such restraints as mandated by statute.

The Administrator shall also be responsible for employment, supervision, evaluation and termination of Board employees and shall delegate appropriate powers and duties to them, subject to the advice and/or consent of the Attorney General and the Board.

Rule No. 18

CLAIMS OF INCOMPETENTS OR MINOR CHILDREN

Proof of the establishment of the guardianship may be required by the Board prior to release of funds to the claimant. A certified copy of the Order of Guardianship shall be sufficient proof.

Rule No. 19

AMENDMENT TO RULES AND REGULATIONS

Any modification or amendment to the Rules and Regulations of the Board shall be made pursuant to the procedure as outlined in the Arkansas Administrative Procedure Act.

Rule No. 20

ADMINISTRATIVE REVIEW AND APPROVAL OF CLAIMS

1. Rule 12 Items 1-4, of the Arkansas Crime Victims Reparations Board Rules and Regulations shall apply to all claims including those covered by this Emergency Rule.

2. This Rule applies only to claims for compensation of $2500 or less or to those claims which the administrative staff has reason to believe will be denied for one or any of the following reasons:

a. The claim is not filed with the board within one year after the injury or death upon which the claim is based, unless "good cause" for not having done so can be established,

b. The victim or claimant was an offender or an accomplice of the offender.

c. The award would unjustly benefit the offender or accomplice except as permitted by Rule 9 of the Arkansas Crime Victims Reparations Rules and Regulations.

d. To a victim who is injured or killed while confined in a state, county, or municipal jail, prison, or other correctional facility as a result of conviction of any crime;

e. To a victim or claimant who has been convicted of a felony involving criminally injurious conduct;

f. If the crime which resulted in criminally injurious conduct or death was not reported to a law enforcement officer within seventy-two hours after its occurrence.

g. The claim does not fulfill criteria established for compensation in Rule No. 8 of the Arkansas Crime Victims Reparations Rules and Regulations of the Board.

3. When considering such claims, the staff shall make a thorough analysis of the application and attachments. They shall prepair comments relative to the application which shall be filed in the application folder.

4. The Administrator of the Board shall then make a decision regarding the claim. The applicant shall be mailed notification of the administrative decision within seven (7) calendar days by certified mail, return receipt requested.

5. The claimant shall have the right to appeal administrative decisions of the Board in the manner set forth in Rule No. 14, APPEALS PROCEDURE Items 2 and 3.

6. In an appeals hearing, all parties shall be afforded an opportunity to appear and be heard.

7. Rule #14, Item 5, as pertains to records of all proceedings shall not apply to administrative decisions for which no transcript is available.

Rule No. 21

ELIGIBILITY REQUIREMENTS AND APPLICATION REVIEW PROCEDURE FOR MEDICAL/LEGAL SEXUAL ASSAULT EVIDENCE COLLECTION EXAMINATIONS

1. The adult victim of a sexual assault must receive medical treatment within forty-eight (48) hours of the assault. Minors are not required to seek treatment within this time limit.

2. Law enforcement must be notified of the assault prior to or at the Same time as the examination is conducted.

3. All reimbursement for medical legal examinations will be made to the hospital which provides such service to the victim.

4. Since reimbursement is made to hospitals directly, hospitals are responsible for fulfillment of the following procedures:

A copy of the Sexual Assault Reimbursement Form must be completed with copies of itemized bills attached. If the medical facility does not have a reimbursement form available, a letter from the medical facility may be used if it contains the following information:

a. Name, address and phone number of medical facility ^

b. Contact person at the medical facility

c. Victim's name and address

d. Date and time of the assault

e. Date and time treatment was sought

f. The name of investigating law enforcement agency

g. Copy of the itemized bills (attached to letter)

5. The medical facility must send the reimbursement form (or letter), with the attached itemized bills to the Arkansas Crime Victims Reparations Board.

6. In cases occurring in Pulaski County or in any county that has a Victim/Witness Coordinator, the medical facility will attach itemized bills to the claim form which will be mailed to the Victim/Witness Coordinator who will determine the Law Enforcement Case # and forward the entire claim to the Arkansas Crime Victims Reparations Board.

7. The staff of the Arkansas Crime Victims Reparations Board will log in the request for reimbursement and verify the report to a law enforcement agency.

8. The Administrator of the Arkansas Crime Victims Reparations Board will then approve the reimbursement for reasonable costs related to the collection of evidence and immediate emergency treatment not to exceed $700.

9. All victims of sexual assaults with costs exceeding $700 will be mailed a standard Arkansas Crime Victims Reparations Board application for compensation. They will be required to submit this application for excess costs to the board for verification and processing as specified in Rules 1 through 17 of the Arkansas Crime Victims Reparations Board Rules and Regulations as adopted September 21, 1990.

Rule No. 22

COST CEILING ON MEDICAL BILLS

In connection with claims for payment of medical bills, not covered by insurance, made by victims, the Board will award up to 75% of medical bills, not to exceed a total reimbursement of $10,000.

The provider of medical services to whom the award is made will be notified that by accepting the payment of 75% of their bill, they are agreeing not to commence civil actions against the victim or his legal representative to recover the balance due under the bill.

Acceptance of payment for services paid by the Arkansas Crime Victims Reparations Board shall be considered payment in full and bars any legal action for collection.

Rule No. 23

COST CEILING ON MENTAL HEALTH BILLS (EMERGENCY)

1. In connection with claims for payment of mental health services, not covered by insurance, incurred by victims, the Board will pay a maximum of twenty-five hundred dollars ($2500) or provide services for six (6) months, whichever occurs first, provided that a treatment plan is submitted within thirty (30) days of beginning therapy to determine the necessity of treatment and its relationship to the crime perpetrated upon the victim.

2. A mandatory review by the Board is required after ninety (90) days or twenty-five hundred dollars ($2500), whichever occurs first.

a. Should the provider recommend that the victim receive additional treatment at this time, the provider will be required to submit a new treatment plan.

b. The Board may waive the maximum upon a justification of special need based upon documentation to be submitted by the provider.

c. The Board also reserves the right to have any mental health claims and treatment plans reviewed by an independent peer review committee should it so desire.

Rule No. 24

CONFLICT OF INTEREST

No member of the Board shall use such appointment for purposes which are motivated by private gain, including gain for providers, claimants, or victims with which the board member is associated with in any capacity. There shall exist a conflict of interest when a provider, claimant, or victim with whom the board member is associated with appears before the board in the course of business of the board.

When such a conflict arises for a member, the individual member should declare the conflict. Additionally, any member of the Board who questions whether or not another member has a conflict of interest in the matter under discussion may ask for a determination by the Board. If the Board finds that a conflict exists, the affected member shall also follow the aforementioned procedure.

Any member of the Board who declares a conflict of interest, or who is found to have a conflict, should neither participate in debate nor vote on the issue in question.

(3/16/1992)

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