RULE 143.00.94-002 - Rules and Regulations

RULE 143.00.94-002. Rules and Regulations

Rule No. 1 TITLE AND OPERATIVE DATE OF THE ACT

The title of the Act under which these rules and regulation 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, replacement services loss of a dependent, but shall not include non-economic loss.

ECONOMIC LOSS OF A DEPENDENT - Definition totally deleted.

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 including but not limited to pay stubs, tax returns or certified documentation from employer.

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 may be considered for payment for a maximum of six (6) months. All replacement services must be reasonable and comparable to similar services.

Replacement services may consist of such services as day care services if the victim formerly cared for the children and is no longer able to do so because of the victimization, home care services to provide health care or homemaker services when the victim is not able to perform these tasks without assistance, replacement or repair of eyeglasses, dentures, contact lenses, prosthetic devices, and transportation.

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, 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 re-investigate 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 nine (9) 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 l, 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.

(A) Good cause shall include, but not be limited to:

(1) the physical incapacity of a victim

(2) the mental incompetence of a victim

(3) the age of the victim

(4) the injury was not reasonably discoverable

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.

(A) Good cause shall include, but not be limited to:

(1) the physical incapacity of a victim

(2) the mental incompetence of a victim

(3) the age of the victim

(4) the injury was not reasonably discoverable

(5) restitution or other collateral source was regularly-being paid and then terminated

(6) postal service delays which are verifiable

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.

The following issues may be considered when determining cooperation:

1. Failure to cooperate in the prosecution of the defendant or to appear as a witness.

2. Not cooperating initially but later deciding to cooperate and the delay allows the defendant to escape prosecution.

3. Not cooperating initially but later deciding to cooperate without any good cause as to the delay.

4. Causing extra or unnecessary effort on the part of law enforcement to gain prosecution.

5. Reluctantly providing information pertaining to the crime; failing to appear when requested, without good cause; giving false or misleading information; or attempting to avoid law enforcement.

6. Failing to prosecute or cooperate with law enforcement because of fear for his/her personal safety.

7. Failing to give testimony or otherwise cooperate with the prosecutor's office.

8. Failing to cooperate with Arkansas Crime Victims Reparations Board administrative staff by not returning requested information, not returning telephone calls, not providing accurate information, etc.

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. Claimant/victim may be denied if he/she has been engaged in an illegal activity during his/her victimization.

Illegal activity may consist of any of the following but is not limited to:

(a). victim was buying drugs;

(b). victim was using drugs;

(c). victim was a minor and drinking alcohol

(d). victim was in an illegal place of business, such as a crackhouse, house of prostitution, or gambling establishment.

If claimant/victim contributed or was offender - compensation shall not be awarded to a claimant/victim who was the offender or an accomplice of the offender or who encouraged or in any way-participated in the criminally injurious conduct. 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.

In determining the amount of an award, the Arkansas Crime Victims Reparations Board shall determine whether, because of his conduct, the victim of such crime or the intervenor contributed to the infliction of his injury or to his death, and the Board shall reduce the amount of the award or reject the claim altogether, in accordance with such determination.

Contribution is determined by the action portrayed by the victim at the time of or immediately preceding the crime. While there is no set formula for calculating the percentage of contribution to be assessed, the following factors should serve as a guideline:

(1) If it appears that the victim was provoked by the defendant in a manner threatening bodily harm to the victim, and the victim acted in self defense, no contribution should be assessed.

(2) If it appears that the victim was provoked by the defendant in a manner where bodily harm to the victim appeared unlikely, and the victim used poor judgment because of intoxication or other drug involvement, a 25% contribution factor should be assessed.

(3) If it appears that the defendant was provoked by the victim in a manner where bodily harm appeared unlikely, a 50% contribution factor should be assessed.

(4) If the victim is injured as a result of his conduct not being that of a prudent person, a 50% contribution factor should also be assessed.

(5) If it appears that the defendant was provoked by the victim in a manner where bodily harm to the defendant appears intentional, a 75% contribution factor should be assessed.

(6) If it appears that the defendant was provoked by the victim in a manner where bodily harm to the defendant is unquestionable, a 100% contribution factor shall be assessed and the claim denied.

(7) If the victim is not wearing protective equipment as prescribed by law, a 25% contribution factor shall be assessed. This includes helmets, seat belts, etc.

(8) If the victim was involved in drugs as verified by the police report or other official documents, a 100% contribution factor should be assessed and the claim denied.

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. Claimant/victim has not been convicted of a felony involving criminally injurious conduct.

11. Awards shall not be made to a victim who is injured or killed while confined in state, county, or municipal jail, prison or other correctional facility as a result of conviction of any crime.

12. In those cases where the victim has died, the claimant will be considered to have no compensable loss for the expenses incurred by the victim as a result of the criminally injurious conduct if the claimant has no legal obligation to pay for these expenses.

Rule No. 9

CLAIMS INVOLVING DOMESTIC VIOLENCE AND CHILD ABUSE

1. No portion of a compensation award shall unjustly benefit the offender or accomplice however, no award shall be denied solely on the presence of the offender in the household at the time of the award.

2. The Board shall consider the following factors as they relate to the well being of the victim when awarding claims involving domestic violence/child abuse:

(a) the offender's potential access to cash payments to determine what portion of the payment will be used for the benefit of the offender,

(b) the degree to which the offender is being held accountable for the crime, either through the criminal justice system or therapeutic measures,

(c) the victim's willingness to cooperate with law enforcement and the Arkansas Crime Victims Reparations Board in assuring proper use of cash awards.

3. Collateral resources available to the victim from the offender shall be considered when awarding a claim, however the victim shall not be penalized for the failure of an offender to meet legal obligations to pay for the costs of the victim's recovery.

4. Payments to third-party providers shall be made to prevent cash intended for the victim's bills to be used by or on behalf of the offender.

5. The Board shall not penalize child victims by denying or delaying payment when offender/collateral resources are not forthcoming.

Rule No. 10

MAXIMUM COMPENSATION AMOUNTS AND METHODS OF PAYMENTS

1. Compensation payable to a victim or claimant incurring expenses due to injury or death may not exceed a total of Ten Thousand Dollars ($10,000.00).

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, 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 unless amount is over $10,000.

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 accommodations, 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, law enforcement agency, victim/witness coordinator, medical provider or from the Board. Assistance in completing the form may be provided by the victim-witness coordinator or the prosecuting attorney's staff in districts that have no victim-witness coordinator. The Crime Victims Reparations Board staff will also be available to assist in the completion of the form.

2. A form must be completed in its entirety, appropriate itemized documentation and police offense report 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.

(A) Good cause shall include, but not be limited to:

(1) the physical incapacity of a victim

(2) the mental incompetence of a victim

(3) the age of the victim

(4) the injury was not reasonably discoverable

(5) restitution or other collateral source was regularly being paid and then terminated

(6) postal service delays which are verifiable

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 along with supportive data that is pertinent to the investigation.

6. The administrative staff shall have the authority to review and decide the following claims:

(a) Claims for compensation of $2,500 or less,

(b) Claims for funeral expenses of $2,500 or less

7. Claims that the administrative staff has reason to believe should be denied for 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.

(1) Good cause shall include, but not be limited to:

(a) the physical incapacity of a victim

(b) the mental incompetence of a victim

(c) the age of the victim

(d) the injury was not reasonably discoverable

(e) restitution or other collateral source was regularly being paid and then terminated

(f) postal service delays which are verifiable

(B) The claimant/victim was an offender or an accomplice of the offender. Claimant/victim shall not have been engaged in an illegal activity during his/her victimization.

(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. {See Rule 9)

(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.

If claimant/victim contributed or was offender - compensation shall not be awarded to a claimant/victim who was the offender or an accomplice of the offender or who encouraged or in any way participated in the criminally injurious conduct. 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.

In determining the amount of an award, the administrative staff shall determine whether, because of his conduct, the victim of such crime or the intervenor contributed to the infliction of his injury or to his death, and the Board shall reduce the amount of the award or reject the claim altogether, in accordance with such determination.

Contribution is determined by the action portrayed by the victim at the time of or immediately preceding the crime. While there is no set formula for calculating the percentage of contribution to be assessed, the following factors should serve as a guideline:

(1) If it appears that the victim was provoked by the defendant in a manner threatening bodily harm to the victim, and the victim acted in self defense, no contribution should be assessed.

(2) If it appears that the victim was provoked by the defendant in a manner where bodily harm to the victim appeared unlikely, and the victim used poor judgment because of intoxication or other drug involvement, a 25% contribution factor should be assessed.

(3) If it appears that the defendant was provoked by the victim in a manner where bodily harm appeared unlikely, a 50% contribution factor should be assessed.

(4) If the victim is injured as a result of his conduct not being that of a prudent person, a 50% contribution factor should also be assessed.

(5) If it appears that the defendant was provoked by the victim in a manner where bodily harm to the defendant appears intentional, a 75% contribution factor should be assessed.

(6) If it appears that the defendant was provoked by the victim in a manner where bodily harm to the defendant is unquestionable, a 100% contribution factor shall be assessed and the claim denied.

(7) If the victim is not wearing protective equipment as prescribed by law, a 25% contribution factor shall be assessed. This includes helmets, seat belts, etc.

(8) If the victim was involved in drugs as verified by the police report or other official documents, a 100% contribution factor should be assessed and the claim denied.

8. The Administrator of the Board shall then make a decision regarding the claim. The claimant/victim shall be mailed notification of the administrative decision within fourteen (14) calendar days by mail. If claim is denied the claimant/victim will be notified by certified mail, return receipt requested.

9. The claimant shall have the right to appeal administrative decisions of the Board in the manner set forth in Rule No. 14, APPEALS PROCEDURE.

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

11. Applications that do not fall under the guidelines of administrative staff decisions shall be presented to the Board. 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 ten (10) calendar days prior to a Board meeting for consideration at that meeting. Those applications not cleared at least ten (10) 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.

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

13. Notification of Board meetings shall be made in compliance with the Arkansas Code Annotated 25-19-101 - 25-19-107 - the Arkansas Freedom of Information Act.

14. 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 claimant/victim 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 claimant/victim if immediate payment is not made. The claimant/victim 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 claimant/victim. If the final award amount is less than the amount of the advance award, the claimant/victim must repay the excess to the Board. If an emergency award is made and the claimant/victim later does not follow through with prosecution or some other requirement of this program, the claimant/victim will be required to reimburse the Board for the amount of the award made.

Criteria for payment of emergency awards is listed below:

a. Claimant/victim is without an income at the time of application resulting in loss of food, heat or shelter.

b. Claimant/victim can not receive emergency service (i.e. burial) without the emergency payment.

Documentation required:

a. Proof of financial emergency should be obtained for the file such as notice of eviction from the landlord or a shut-off notice from the power company.

b. If no proof is available, then the investigator should note in file why he/she thinks the application is considered an emergency.

c. There must be contact with the investigating law enforcement officer to verify what occurred, the victim's innocence and the victim's cooperation. A law enforcement offense report and Crime Victims Reparation Board Law Enforcement Form must be included in the file.

d. For wage loss claims, the employer may be contacted by telephone but the written verification must follow to go in the file. If self-employed applicant must provide a copy of his/her last three (3) years tax return or check stubs for the last three months as proof of his/her income. If proof is not available, lost wages can not be considered.

e. If the injury is not commensurate with the time lost from work, a doctor's excuse will be required.

f. Claimant/victim is required to sign a promissory (demand) note which must be signed and executed by the claimant/victim with the Administrator prior to receiving the emergency award.

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/victim by certified mail, return receipt requested, within fifteen (15) calendar days of the Board's or administrative staff's action, setting forth the basis of the decision.

2. The claimant/victim 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 or administrative staff's decision.

3. The claimant/victim 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/victim stating intent to appeal.

4. The claimant/victim or an authorized representative in the event the claimant/victim is incapacitated must be present at the appeal hearing. In an appeals hearing, all parties shall be afforded an opportunity to appear and be heard. A record of the proceedings 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 claimant/victim will be notified by mail.

7. The claimant/victim, if not successful in the appeal to the Board shall then have (30) thirty days from the receipt of the decision to file a petition for judicial review pursuant to Arkansas Code Annotated 25-15-212 in the circuit court of his/her county of residence or in Pulaski County.

Rule No. 15 SUBROGATION RIGHTS OF THE BOARD

1. Upon an award of compensation by the Board for personal injury or death, the Board shall be subrogated to recover from a collateral source to the extent reparations were awarded.

2. Should the claimant/victim file a cause of action against any third person responsible for such injury or death, and be entitled to recover the amount of damages sustained by the claimant/victim then the amount recovered and collected in the action is subrogated to the Board for the amount of reparations awarded.

3. In the event a defendant is convicted of a crime and ordered to pay restitution, the office of the Attorney General may seek to recover any or all of the restitution paid. Any excess amount recovered over the reparation amount awarded and paid shall be paid to the claimant/victim.

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. If a victim or a claimant knowingly files a false claim or provides false information or fails to provide material facts or circumstances necessary to substantiate the claim, he/she may not at a later date, file a correct claim. If this happens, the claim shall be denied.

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 promulgated 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 REGDXATIONS

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

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

DEFINITIONS

"Victim" means any person who has been a victim of any sexual assault or incest.

"Appropriate emergency medical-legal examinations" means health care delivered to out-patients with emphasis on the collection of evidence for the purpose of prosecution and shall include, but not be limited to:

1. appropriate stains and cultures to determine the presence or absence of venereal disease

2. components contained in an evidence collection kit for sexual assault examinations deemed appropriate by the Serology Division of the State Crime Laboratory

3. evidence collection shall not include treatment of emotional trauma or ambulance services "Medical facility" means any health care provider that is currently licensed by the Department of Health and providing emergency services, and all publicly owned or tax-supported medical facilities in Arkansas.

PROCEDURES GOVERNING MEDICAL TREATMENT ADULT VICTIMS

1. All medical facilities in Arkansas shall adhere to the procedures set forth below in the event that a person presents himself or is presented at the medical facility for treatment as a victim of rape, attempted rape, any other type of sexual assault, or incest.

2. Any adult victim presented for medical treatment shall make the decision of whether or not the incident will be reported to a law enforcement agency.

a. No medical facility may require an adult victim to report the incident in order to receive medical treatment

b. The victim shall be examined and treated as a regular emergency room patient, and any injuries requiring medical attention will be treated in the standard manner.

c. Evidence will be collected only with the permission of the victim. However, permission shall not be required in instances where the victim is unconscious, mentally incapable of consent or intoxicated.

3. Should an adult victim wish to report the incident to a law enforcement agency, the appropriate law enforcement agencies shall be contacted by the medical facility.

a. The victim shall be examined and treated as a regular emergency room patient, any injuries requiring medical attention will be treated in the standard manner and a medical-legal examination shall be conducted and specimens shall be collected for evidence.

b. The evidence shall be turned over to the law enforcement officers when they arrive to assume responsibility for investigation of the incident.

4. The victim shall not be transferred to another medical facility unless:

a. The victim requests to be transferred or

b. A physician or other qualified medical personnel when a physician is not available has signed a certification that the benefits to the patient's health would outweigh the risks to the patient's health as a result of the transfer and

c. The transferring hospital provides all necessary medical records and insures that appropriate transportation is available.

PROCEDURES GOVERNING MEDICAL TREATMENT VICTIMS UNDER THE AGE OP EIGHTEEN (18)

1. All medical facilities in Arkansas shall adhere to the procedures set forth below in the event that a person presents himself/herself or is presented at the medical facility for treatment as a victim of rape, attempted rape, any other type of sexual assault, or incest.

2. The reporting medical facility shall report the injuries of the victim under eighteen (18) years of age immediately by telephone and shall then follow up with a written report within forty-eight (48) hours if so requested by the receiving agency. The receiving agency shall immediately prepare and forward a written report to the statewide central registry within twenty-four (24) hours. The Department of Human Services shall notify and initiate an investigation in cooperation with law enforcement agencies and the prosecuting attorney.

a. Any victim under the age of eighteen (18) years of age shall be examined and treated as a regular emergency room patient and any injury requiring medical attention will be treated in the standard manner.

b. A medical-legal examination shall be performed and specimens shall be collected for evidence.

c. The evidence shall be turned over to the law enforcement officers when they arrive to assume responsibility for investigation of the incident.

d. Reimbursement for the medical-legal examinations shall be available to the medical facilities.

e. The victim shall not be transferred to another medical facility unless:

aa. The victim requests to be transferred or

bb. A physician or other qualified medical personnel when a physician is not available has signed a certification that the benefits to the patient's health would outweigh the risks to the patient's health as a result of the transfer and

cc. The transferring hospital provides all necessary medical records and insures that appropriate transportation is available.

EXAMINATIONS AND TREATMENT - PAYMENTS

UNIVERSITY OF ARKANSAS MEDICAL SCIENCE CAMPUS

1. All University of Arkansas Medical Sciences Campus shall provide prompt, appropriate emergency medical-legal examinations for sexual assault victims.

2. All victims seeking treatment shall be exempted from the payment of expenses incurred as a result of the treatment provided the following conditions are met:

a. The assault must be reported to a law enforcement agency and

b. The victim must seek treatment within forty-eight (48) hours of the attack.

c. In the event the victim is a minor, the forty-eight (48) hour time limitation may be waived, if, in the opinion of the examining physician, evidence of sexual activity could be found.

REIMBURSEMENT OF ALL MEDICAL FACILITIES

1. The Arkansas Crime Victims Reparations Board may reimburse any medical facility for reasonable cost of emergency medical examinations for sexual assault victims. The Board may mandate cost ceilings for claims and determine reasonable cost.

2. Medical facilities must be currently licensed by the Department of Health and providing emergency services.

3. All publicly owned or tax-supported medical facilities in Arkansas shall adhere to the following procedures in the event that a person presents himself/herself or is presented at the medical facility for treatment as a victim of rape, attempted rape, any other type of sexual assault or incest:

a. Any adult victim presented for medical treatment shall make the decision of whether or not the incident will be reported to a law enforcement agency.

b. No medical facility may require an adult victim to report the incident in order to receive medical treatment.

4. The victim must seek treatment within forty-eight (48) hours of the attack.

a. In the event the victim is a minor, the forty-eight (48) hour time limitation may be waived, if, in the opinion of the examining physician, evidence of sexual activity could be found.

5. The victim shall not be transferred to another medical facility unless:

a. The victim requests to be transferred or

b. A physician or other qualified medical personnel when a physician is not available has signed a certification that the benefits to the patient's health would outweigh the risks to the patient's health as a result of the transfer and

c. The transferring hospital provides all necessary medical records and insures that appropriate transportation is available.

6. Medical facilities are responsible for fulfillment of the following procedures since reimbursement is made directly to them:

a. Claims will be paid only, if submitted on Arkansas Crime Victims Reparation Board Sexual Assault Reimbursement Forms which must include:

1. Victims name, date of birth and address

2. Date and time of incident

3. Date and time of treatment by medical facility

4. Name and address of law enforcement agency notified

5. Name and address of medical facility

6. Medical facility contact person and telephone

7. number

8. Brief description of examination, treatment and tests

9. Signed verification from the physician

10. Signed verification from law enforcement or victim witness coordinator or verified victim advocate

11. All itemized copies of medical bills complete with current procedural terminology (CPT) codes.

7. The medical facility must send the reimbursement form with the attached itemized bills to the Arkansas Crime Victims Reparations Board.

8. The Board shall make payments for the following sexual assault -medical-legal examination services:

a. Physician's fee

History

Physical,

Collection of specimens

Treatment for the prevention of venereal disease

b. Emergency department

Emergency room, clinic room or office room fee

Pelvic tray

c. Laboratory

Wet mount for sperm

Fixed smear for sperm (pap)

Blood test for VDRL

Blood testing for syphilis and Hepatitis B

HIV test

Cultures for gonorrhea, chlamydia, trichomonas and other sexually transmitted disease (STD)

d. Pregnancy testing (blood test or urinalysis if indicated)

e. Other laboratory test that are required for the purpose of evidentiary examination

f. Medications

Prophylaxis

One dose sedative, antidepressant or tranquilizer

9. The Administrator of the Arkansas Crime Victims Reparations Board will then approve the reimbursement for reasonable and customary costs related to the collection of evidence and immediate emergency medical treatment (medical - legal examination). The payment of the said fees will be based on past practices and costs (average of fiscal year 1991, 1992 and 1993); however excessive fees which are denied may be appealed by the medical provider in writing to the Arkansas Crime Victims Reparations Board. An annual review of said fees will be conducted by the Administrator of the Arkansas Crime Victims Reparations Board.

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

11. The victim is not responsible for the payment of the cost of the medical -legal examination. A medical facility shall not submit any remaining balance after reimbursement by this Board to the victim.

12. Victims may be eligible for crime victim compensation through the Crime Victims Reparations Board for medical care that was not part of the sexual assault -medical - legal examination. Medical care may include: x-rays, stitches, hospitalization, pain medication and counseling that may be needed as a direct result of the sexual assault victimization. A crime victim compensation form must be completed for compensation to be reimbursed for medical care. The form must be accompanied by a police offense report and medical bills.

Rule No. 21

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. 22

COST CEILING ON MENTAL HEALTH BILLS

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 the application to the Board for those victims receiving ongoing therapy or within thirty (30) days of beginning therapy for those victims who seek mental health treatment after making application to the Board. This treatment plan must state the basis for the necessity of such treatment, the anticipated extent of the treatment, and the relationship of the treatment to the crime perpetrated upon the victim and whether or not the diagnosis is related to a pre-existing condition.

2. A mandatory review by the Board is required after ninety (90) or twenty-five hundred dollars ($2500), whichever occurs first, should the victim or the provider find that further services are required.

a. The provider will be required to submit a new treatment plan to justify the continued need for the treatment and its continued relationship to the crime.

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. 23

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.

Rule No. 24

SUPPLEMENTAL AWARDS

If at the time of the application, the victim or claimant was unable to submit all of the itemized bills, he/she may submit supplement bills to be considered after the original award. If a victim or claimant has been awarded their original claim at a reduced amount due to contribution, then the Board will note at the time of approval whether or not they will consider any supplemental awards concerning this claim. If the Board determines that supplemental awards will not be considered after the initial award, the Board shall so note at the time of the initial award. Each case will be considered on its own merits.

The total of the original award and any and all supplemental awards may not exceed $10,000.

Supplemental awards may be paid quarterly.

Supplemental bills must be submitted within ninety (90) days of the date of treatment to be considered.

The staff administrator may determine compensation for supplemental awards in the amount not to exceed $1,000.

Rule No. 25

FINANCIAL OBLIGATION REQUIREMENT

Reparations shall not be awarded to any victim/claimant who owes a financial obligation ordered or imposed as a result of a previous criminal conviction until the board receives information or materials establishing to the satisfaction of the board that the financial obligation has been satisfied. If the board does not receive the information or materials within six months after the board notifies the victim/claimant, the application will be closed and the victim notified of their right to appeal.

(143.00.94-002)

The following state regulations pages link to this page.