PROPOSED RULEMAKING
COMMISSION ON CRIME AND DELINQUENCY
[37 PA. CODE CHS. 191 AND 411]
Crime Victims Compensation
[34 Pa.B. 5032] The Commission on Crime and Delinquency (Commission) proposes to delete Chapter 191 (relating to general provisions) and to add Chapter 411 (relating to crime victims compensation) to read as set forth in Annex A.
Authority
The rulemaking is proposed under the authority of the Crime Victims Act (act) (18 P. S. §§ 11.101--11.5102). Section 312(3) of act (18 P. S. § 11.312(3)) empowers the Office of Victims' Services (Office) to ''adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of Chapter 7.'' Section 312(3) of act also empowers the Office to establish compensation limits and reimbursement rates for the purpose of carrying out the provisions of Chapter 7.
Purpose
This rulemaking proposes to delete Chapter 191 and to replace it with regulations specific to the Office. The new regulations would be in Chapter 411, adjacent to other regulations pertaining to the Commission or its other offices. The proposed rulemaking reflects the substantial statutory changes that have occurred since 1989 when regulations affecting the program were most recently amended. New regulations are needed to conform to the new requirements of the act. The proposed rulemaking would simplify or clarify many of the Office's claims processing, determination and appeal procedures. In addition, this proposed rulemaking incorporates the Schedule of Compensation Limits and Reimbursement Rates (schedule) for the Crime Victims Compensation Program (program) published as a statement of policy at 32 Pa.B. 4489 (September 14, 2002), thus allowing conservation of limited financial resources.
This proposed rulemaking is necessary because substantial statutory changes have occurred in a benefit program subsequent to the last time the applicable regulations were amended in 1989. The program has an increasing visibility in the Commonwealth's criminal justice system, having awarded a total of $9.2 million in FY 2002-2003 consisting of initial awards for 3,094 claims and supplemental awards for 1,578 previous claims. In addition, this proposed rulemaking would adopt the schedule as published at 32 Pa.B. 4489, thus allowing conservation of limited financial resources. New regulations are needed to conform the regulatory framework to the needs and priorities of the current program.
Requirements of the Proposed Rulemaking
The proposed rulemaking enumerates and details the new requirements of the act in the following structure:
§§ 411.1--411.3 (relating to general provisions)
These sections provide the scope of the proposed rulemaking and the definitions of words and terms used in Chapter 411, as well as the persons eligible for compensation.
§§ 411.11--411.18 (relating to claims)
These sections provide procedures for filing and review of claims, as well as procedures for closing claims. These sections also address the role of the Office in making initial determinations on claims. The sections address actions of the direct victim that are considered and affect awards. These sections provide provisions pertaining to awards, including reductions, offsets and limitations, emergency awards and awards in general.
§§ 411.31--411.33 (relating to appeals)
These sections provide appeal procedures.
§§ 411.41--411.44 (relating to schedule of reimbursement rates and compensation limits)
These sections set the schedule of reimbursement rates and the compensation limits for awards, out-of-pocket loss, loss of earnings and loss of support payments.
§§ 411.51--411.53 (relating to miscellaneous)
Section 411.51 (relating to subrogation) provides subrogation authority to the Office regarding award payments.
Section 411.52 (relating to representation by attorney) provides provisions for claimants that are represented by an attorney and factors for the Office to consider when assessing reimbursement of attorney fees.
Section 411.53 (relating to prohibitions) provides prohibitions against reimbursement claims submitted by providers who have already written off bills to the direct victim, funeral directors who have assumed an obligation to pay for the funeral and persons who assumed the obligation for crime scene clean up.
Affected Parties
Victims of crimes, as defined in the act, benefit by having clear and up-to-date regulations regarding eligibility, compensation and procedures. Additionally, the proposed rulemaking is intended to provide further guidance and direction to healthcare providers and hospitals in regard to their eligibility and reimbursement under the act.
Under the authority of the act of June 28, 2002 (P. L. 496, No. 85) (Act 85), there is now a 70% reimbursement rate for medical expenses set by the Office which may adversely affect a variety of providers, because they will not receive as much reimbursement as previously received, when they were paid in full to the extent of the maximum of $35,000 under the act. However, paying at 100% was the exception to the rule, and the setting of a percentage reimbursement rate has conformed to the practice of other third-party payors.
Cost and Paperwork Estimates
The proposed rulemaking provides guidance in implementing a program that is already in effect, for which funding has been appropriated. Therefore, there is no new significant fiscal impact. However, various health providers will incur costs resulting from the percentage reduction of payments. This reduction will save the Crime Victim's Compensation Fund an estimated $1,453,052. This amount would have been paid to the providers prior to the reduction of payments.
The fiscal impact to the Commission from all the reimbursement rates set by the Office under Act 85 will consist of an estimated annual net savings of $684,888. This calculation takes into account the savings to the Commission resulting from the Office's setting of a 70% reimbursement rate to providers ($1,453,052) and the estimated costs to the Commission from new benefits or increased benefits ($768,164).
The proposed rulemaking does not affect existing reporting, record keeping, or other paperwork requirements.
Effective Date
The proposed rulemaking will become effective upon final-form publication in the Pennsylvania Bulletin.
Sunset Date
No sunset date has been assigned. The regulations will be reviewed annually.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 26, 2004, the Commission submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Judiciary Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commission, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment and Contact Person
Interested persons are invited to submit written comments regarding the proposed rulemaking within 30 days of the publication of this proposed rulemaking in the Pennsylvania Bulletin. Comments should be submitted to the Commission on Crime and Delinquency, Office of Victims' Services, P. O. Box 1167, Harrisburg, PA 17108-1167, Attn: Lynn Shiner. Persons with disabilities needing an alternative means of providing public comment may make arrangements by contacting the Commission.
Persons needing additional information regarding the proposed rulemaking should contact Lynn Shiner at the previous address. Alternative formats of the proposed rulemaking (for example, Braille, large print or cassette tape) will be also be made available to members of the public upon request.
CARL J. ANDERSON,
Executive DirectorFiscal Note: 35-29. (1) General Fund; (2) Implementing Year 2003-04 is $768,164; (3) 1st Succeeding Year 2004-05 is $844,980; 2nd Succeeding Year 2005-06 is $844,980; 3rd Succeeding Year 2006-07 is $844,980; 4th Succeeding Year 2007-08 is $844,980; 5th Succeeding Year 2008-09 is $844,980; (4) 2002-03 Program--$9,243,150; 2001-02 Program--$7,139,690; 2000-01 Program--$7,844,299; (7) Crime Victims Reimbursements; (8) recommends adoption. Federal reimbursements are expected to cover a portion of the costs of these services (approximately 60%). Savings generated from the decrease in the medical reimbursement rate offset a portion of the additional payments to crime victims.
Annex A
TITLE 37. LAW
PART III. AGENCIES AND OFFICES
Subpart J. (Reserved)
CHAPTER 191. (Reserved) (Editor's Note: The Department is proposing to delete Chapter 191 in its entirety. The present text of Chapter 191 appears at 37 Pa. Code pages 191-1--191-23, serial pages (290735) to (290736), (261627) to (261628), (237977) to (237978), (261629) to (261630), (237981) to (237982), (261631) to (261632), (237985) to (237986), (261633) to (261635) and (237989) to (237995).)
§§ 191.1--191.15. (Reserved).
PART VI. COMMISSION ON CRIME AND DELINQUENCY
CHAPTER 411. CRIME VICTIMS COMPENSATION GENERAL PROVISIONS
Sec.
411.1. Scope. 411.2. Definitions. 411.3. Persons eligible for compensation. CLAIMS
411.11. Filing procedures. 411.12. Review. 411.13. Closing of claims. 411.14. Determinations. 411.15. Actions affecting awards. 411.16. Reductions, offsets and limitations. 411.17. Emergency awards. 411.18. Awards. APPEALS
411.31. Reconsideration. 411.32 Hearing. 411.33. Final decision after hearing. SCHEDULE OF REIMBURSEMENT RATES AND
COMPENSATION LIMITS
411.41. Amount. 411.42. Out-of-pocket loss. 411.43. Loss of earnings. 411.44. Loss of support. MISCELLANEOUS
411.51. Subrogation. 411.52. Representation by attorney. 411.53. Prohibitions.
GENERAL PROVISIONS § 411.1. Scope.
Except as otherwise indicated, this chapter applies to claims for compensation relating to crimes occurring on or after August 27, 2002.
§ 411.2. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The Crime Victims Act (18 P. S. §§ 11.101--11.5102).
Average weekly wage--The amount designated for persons covered by the Unemployment Compensation Law (43 P. S. §§ 751--771) in this Commonwealth as determined periodically by the Department of Labor and Industry.
Cash equivalent--The net amount of a monthly Social Security entitlement, railroad retirement, pension plan, retirement plan, disability, veteran's retirement, court-ordered child support, or court-ordered spousal support payments.
Dependent child--The child of a direct victim or intervenor on whose behalf regular payments are received for the purpose of whole or partial support and who is one of the following:
(i) Eighteen years of age or younger, including an unborn child for the purposes of this chapter only as defined by 18 Pa.C.S. § 3203 (relating to definitions).
(ii) Nineteen years of age or older but under twenty-three years of age and currently attending secondary school or is a full-time student in a post-secondary educational institution.
(iii) Nineteen years of age or older but unable to provide for his own support due to a physical or mental disability.
Final decision--An OVS determination of a claim that may be appealed by the claimant as provided in 2 Pa.C.S. Chapter 7, Subchapter A (relating to judicial review of Commonwealth agency action).
Guardian--A person appointed by a court for the care and management of a person or estate of a minor or incapacitated person, or designated by a parent of a minor to perform that role.
Health care provider--
(i) An individual authorized by a licensing board or agency of the Commonwealth or equivalent governmental entity to practice the science and skill of diagnosis and treatment of ailments of the human body.
(ii) The term includes medical doctor, osteopathic physician, chiropractor, dentist, registered nurse, optometrist, pharmacist, physical therapist, podiatrist, psychologist, licensed professional counselor and licensed social worker.
Human services provider--Social workers, children and youth caseworkers, area agency on aging, victim service providers (system and community based advocates), and other social service professionals, including mental health, substance abuse, and medical social work.
Immediate need--Thirty days from the date of the crime or 30 days from the date the victim is threatened by any change of circumstance or indicator of danger and a move or relocation is necessary to become or remain safe.
Loss of earnings--Loss of wages or income, or both.
Medical care--Diagnostic, treatment or rehabilitative services performed in a health care facility regulated by the Commonwealth or equivalent governmental entity or performed by a health care provider or person under the direct supervision of a health care provider.
OVS--The Office of Victims' Services in the Pennsylvania Commission on Crime and Delinquency.
PFA--Protection From Abuse Order issued under 23 Pa.C.S. Chapter 61 (relating to protection from abuse).
Pigeon drop--The act of approaching a person and asking that person if he would like to share an amount of found money. In order to share the money, the person shows a good faith effort by willingly providing a specified amount of money with the expectation of receiving a part of the ''found'' money.
Primary source of income--Fifty percent of the direct victim's gross annual income.
Principal support--Fifty percent or more of a claimant's living expenses.
Private residence--Includes a house, apartment, condominium, mobile home or other personal living space.
Stolen benefit cash--Includes the loss of the cash equivalent of 1 month's worth of Social Security, railroad retirement, pension plan, retirement plan, disability, veteran's retirement, court-ordered child support or court-ordered spousal support payments if the payments are the primary source of the direct victim's income and the direct victim is deprived of the money as a direct result of a crime.
(b) The definitions in section 103 of the act (18 P. S. § 11.103) are incorporated by reference.
§ 411.3. Persons eligible for compensation.
(a) General rule. Except as otherwise provided in the act, the following persons are eligible for compensation:
(1) A direct victim.
(2) An intervenor.
(3) A surviving spouse, parent or child of a deceased direct victim or intervenor.
(4) Other persons dependent for principal support upon a deceased direct victim or intervenor.
(5) A person who assumes the obligation or who pays for the crime scene cleanup, funeral or burial expenses incurred as a direct result of the crime.
(6) Hospitals or other licensed health care providers.
(7) Persons eligible for counseling.
(b) Exception. A person who is criminally responsible for the crime upon which a claim is based or an accomplice of the person is not eligible to receive compensation with respect to the claim. A member of the family of the individual who committed the crime is not eligible if the offender is living in the same household as the direct victim and will substantially benefit from the award. The Attorney General may at any time sue the offender or the direct victim, or both, to recover the award if the offender benefits from the award.
CLAIMS § 411.11. Filing procedures.
(a) A claim may be filed by a person eligible under the act.
(b) A claimant may request compensation by completing and submitting OVS's official claim forms to OVS.
(c) A claim may be filed by mail, in person or electronically. If filed by mail, a claim is deemed as filed on the date it is postmarked. If filed by electronic means or in person, it is deemed as filed on the date received by OVS.
(d) When OVS receives a claim, a claim number is assigned and data is entered into OVS's records.
(e) In determining whether the direct victim or intervenor complied with the requirement of the act to have reported the crime to proper authorities within the prescribed time period after the occurrence of the crime, the following apply:
(1) Proper authorities may include a law enforcement officer, district attorney or other applicable prosecutorial authority, district justice, military police, campus police, appropriate hospital security, probation and parole officer, child protective services, adult protective services, or, in the case of a PFA order, the prothonotary or equivalent authority. If the crime occurs in a foreign country, a proper authority includes the United States consulate.
(2) OVS may consider a delay past the prescribed time period to be justified when one of the following circumstances exist:
(i) The direct victim, intervenor or the claimant is mentally or physically incapacitated.
(ii) The victim is a minor.
(iii) There is a fear of retaliation.
(iv) The occurrence of the crime is not readily apparent.
(v) Other circumstances deemed appropriate by OVS.
(3) In making the determinations discussed in this section, OVS will not deem the time periods to begin to run until the date and time that the person with the obligation to report the crime or file the claim learns that a crime occurred.
(f) Claimants do not have to wait until a PFA becomes final to file a claim. In the process of verifying a claim, OVS will ask the claimant to submit confirmation of the issuance of a final PFA order.
(g) If a temporary PFA order is issued and the claimant chooses not to pursue a final order, OVS will consider the PFA order withdrawn and deny the claim unless OVS determines the withdrawal to be justified. OVS may consider the withdrawal of a PFA justified when one of the following circumstances exist:
(1) The direct victim, intervenor or the claimant is mentally or physically incapacitated.
(2) There is a fear of retaliation.
(3) Other circumstances deemed appropriate by OVS.
(h) Subsections (f) and (g) only cover the filing of an initial PFA. If there is a violation of a PFA involving an otherwise eligible crime, the crime must be reported in a timely manner to the proper authorities, which may include filing of a private criminal complaint, to be considered for compensation payments.
(i) When requested by OVS, the claimant shall submit copies of documents that are needed to process the particular type of claim, which include the following:
(1) Stolen benefit cash.
(i) Statements for the month of the crime for payments such as Social Security, retirement, pension, disability, court-ordered child support or court-ordered spousal support.
(ii) Federal tax returns as filed, including all schedules if applicable, for the years requested or a signed statement that the claimant is not required to file a tax return.
(iii) Documentation of the homeowner's or renter's insurance coverage.
(2) Medical treatment expenses.
(i) Itemized bills in the name of the claimant showing the name, address and telephone number of the provider, dates of service, type of service performed, and the amount charged for each service.
(ii) Insurance benefit statements indicating payments or rejection.
(iii) Canceled checks, verification from a medical provider, or receipts for any medical bills related to the injury that were paid by the direct victim, intervenor or claimant.
(iv) Written justification if the direct victim or intervenor is covered by an insurance plan or medical assistance, but did not utilize the prescribed coverage, such as that the direct victim or intervenor could not obtain the required care, could not maintain ongoing care from a previous provider, or travel considerations.
(3) Funeral expenses.
(i) Certified death certificate.
(ii) Itemized funeral bills in the name of the claimant for which the claimant is responsible.
(iii) Canceled checks, receipts, or verification from a provider for funeral bills relating to the death that were paid by claimant.
(iv) Statements for benefits or payments received by the claimant as a result of the death of the direct victim or intervenor, such as life insurance or Social Security death benefits.
(4) Loss of earnings.
(i) Pay stubs or other earnings records for periods immediately prior to the loss. If not obtainable, withholding statements and Federal tax returns as filed, including schedules, if applicable, for the years requested, or a written statement that no Federal tax returns were filed.
(ii) Full name and complete address of claimant's employer.
(iii) Full name and complete address of a physician or psychologist who will certify the existence, duration, and cause of the disability.
(5) Loss of support.
(i) Certified death certificate.
(ii) Full name and complete address of employer of the deceased.
(iii) Federal tax returns as filed, including schedules, if applicable, for the years requested, or a written statement that no Federal tax returns were filed. If unavailable, pay stubs, withholding statements, or other earnings records for periods immediately prior to the injury.
(iv) Statements for benefits received as a result of the death of the direct victim or intervenor, such as life insurance, Social Security, veterans' benefits, or survivor benefits.
(v) Documents that demonstrate financial dependency, including birth certificates, support orders, or Federal tax returns as filed.
(vi) Guardianship papers, where applicable.
(6) Counseling expenses.
(i) Itemized bills in the name of the claimant showing the name, address and telephone number of the provider, dates of service, and the amount charged.
(ii) Insurance benefit statements indicating payments or rejection.
(iii) Canceled checks, verification from a provider, or receipts for any counseling bills related to the injury that were paid by the direct victim, intervenor or claimant.
(iv) Written justification if the direct victim or intervenor is covered by an insurance plan or medical assistance, but did not utilize the prescribed coverage, such as that the direct victim or intervenor could not obtain the required care, could not maintain ongoing care from a previous provider, or travel considerations.
(v) The following information establishing the claimant's relationship to the direct victim, the claimant witnessing the crime, or the claimant's discovery of the homicide victim:
(A) Witness. A police report obtained by OVS. If the witness is not listed in the police report, a written statement provided by someone who could substantiate that the witness was at the scene, preferably written by someone named in the police report.
(B) Relative of direct victim. A copy of a birth certificate, if applicable, or other identifiable information acknowledging the relationship to the direct victim.
(C) Individual engaged to the direct victim. An engagement announcement or a copy of the application for a marriage license. If either is unavailable, a written statement from the engaged individual plus a written statement from a family member acknowledging the intent of the union.
(D) Shared household. A copy of a document, such as a bill or a lease or mortgage agreement that indicates the same address for the direct victim and the victim or claimant filing for counseling expenses.
(E) Individual who discovers homicide body. A police report.
(F) Individual responsible for the direct victim's welfare. Foster parent documentation, guardianship papers, or other documentation showing that the claimant filing for counseling is an individual responsible for the direct victim's welfare.
(7) Crime-scene cleanup expenses.
(i) Itemized bills and receipts in the name of the claimant related to the crime-scene cleanup for which the claimant is responsible.
(ii) Cancelled checks, receipts or verification from a provider for bills related to the crime-scene cleanup.
(iii) Documentation of homeowner's or renter's insurance coverage.
(8) Relocation expenses.
(i) Itemized bills and receipts related to the relocation for which the claimant is responsible.
(ii) Cancelled checks, receipts, or verification from a provider for bills related to the relocation.
(iii) A verification letter from a human service agency, law enforcement, or medical provider explaining the immediate need for relocation.
(9) Miscellaneous expenses.
(i) Itemized bills and receipts in the name of the claimant for which the claimant is responsible related to the miscellaneous expense.
(ii) Cancelled checks, receipts, or verification from a provider for bills related to the injury.
(j) The claimant shall provide OVS with information pertaining to payments received or to be received by another source as a result of the injury, including restitution payments, workers compensation, insurance benefits or awards or settlements in a civil action.
(k) If a minor or incapacitated person has more than one guardian, OVS will determine the appropriate party for filing a claim on behalf of the minor or incapacitated person.
(l) If the direct victim or intervenor dies while a non-homicide claim relating to that direct victim or intervenor is being processed, OVS may substitute the executor or administrator of the direct victim or intervenor and complete the processing of the claim. A claim may not be filed by the estate of a direct victim or intervenor.
(m) The claimant may request a supplemental award by submitting additional out-of-pocket expenses or losses at any time after the initial claim, provided that the claimant has not received the maximum award payable by law. OVS will verify out-of-pocket expenses and losses submitted for a supplemental award to determine that they directly relate to the original incident.
§ 411.12. Review.
(a) OVS will review the claim and supporting documents and investigate the validity of the claim. The investigation must include an examination of police, court and official records and reports concerning the crime and an examination of medical and hospital reports relating to the injury upon which the claim is based.
(b) If additional information is needed to determine the eligibility or validity of a claim, or to substantiate the degree of loss, OVS may ask the claimant for that information or request it directly from outside entities to the extent permitted by law.
(c) OVS may issue subpoenas and subpoenas duces tecum, either on its own instance or upon written application of a party. Subpoenas and subpoenas duces tecum must comply with 231 Pa. Code (relating to rules of civil procedure). Their issuance must depend upon a showing of necessity. OVS, on its own motion or on the application of the claimant, will, whenever necessary, and upon the terms and conditions as OVS may determine, take or cause to be taken affidavits and depositions of witnesses residing within or outside this Commonwealth.
(d) OVS may not request or review counseling notes of mental health service providers. OVS will request an assessment from the mental health service provider as to the extent the service provided is needed as a direct result of the crime.
(e) OVS, at its expense, may direct an examination of the direct victim or intervenor by a health care provider designated by OVS. The direct victim or intervenor's failure to appear for the examination may result in OVS's denial of the applicable portion of the claimant's request for reimbursement.
(f) OVS will investigate and determine claims regardless of whether the alleged criminal has been apprehended, prosecuted or adjudicated for the criminal incident which is the basis for the claim.
§ 411.13. Closing of claims.
(a) OVS will close a claim when a final determination has been made and written notification has been given to the claimant.
(b) When OVS has requested additional information under § 411.12(b) (relating to review) and the information is not provided within 60 days of the request, OVS will close the claim file until requested information is received.
(c) If sufficient information is not provided to OVS to determine eligibility within 2 years from the date of the filing of the claim, the claim will be closed with no further right of appeal. OVS will attempt to notify the claimant in writing 6 months prior to the closing of the claim.
(d) Eligible claims where no verifiable out-of-pocket expense or loss has been received by OVS within 5 years from the date of the filing of the claim will be closed with no further right of appeal. OVS will attempt to notify the claimant in writing 6 months prior to the closing of the claim.
(e) OVS may reopen a claim at any time for further investigation.
§ 411.14. Determinations.
(a) If OVS is able to make an initial determination that the claim does not meet the basic eligibility requirements or the action of the direct victim, intervenor or claimant affects the award, the claim will be denied in writing as a statutory denial or denial for cause. A claimant may provide to OVS additional information or clarification on the claim post-marked no later than 30 days from the date of OVS's initial determination, at which time OVS may reconsider or reaffirm its initial determination.
(b) OVS will determine whether to grant an award, increase or decrease an award or deny the claim based on the supporting documents, the report of the investigation and staff recommendations.
(c) OVS will promptly notify the claimant of its final decision in writing. OVS may also send a copy of the determination to all appropriate individuals, including the State Treasurer, court personnel, victim advocate or the claimant's attorney of record.
§ 411.15. Actions affecting awards.
(a) Except as provided in the Act, OVS may deny a claim or reduce the amount awarded if it finds that the conduct of the direct victim or intervenor contributed to the injury. The conduct of the direct victim or intervenor will be deemed to have contributed to the injury if the direct victim or intervenor did one of the following:
(1) Initiated, provoked or prolonged a physical confrontation with the offender.
(2) Participated in an illegal act that was causally related to the injuries sustained.
(3) Used poor judgment resulting in the placement of the direct victim or intervenor into a situation likely to result in injury.
(b) In determining whether the conduct of a direct victim or intervenor warrants a denial or reduction of the award, OVS may consider evidence indicating that the direct victim or intervenor was acting with legal justification as defined in 18 Pa.C.S. (relating to the Crimes Code) or other evidence of mitigation that the claimant asks OVS to consider.
(c) A direct victim or intervenor of a driving under the influence (DUI) crime incident will not be assessed for the lack of a current driver's license at the time of the incident, unless the license was suspended or revoked for a prior DUI. OVS may assess a contribution amount in other auto-related crimes when the victim's driver's license has been revoked or was under suspension at the time of the crime.
(d) OVS will assess a $5,000 contribution for an award for medical expenses, or the current amount of medical benefits coverage required under Pennsylvania law, if a direct victim or intervenor, who was injured, was driving his own car without insurance.
(e) Stolen cash claims that are received and are eligible for an award will have a minimum 10% contribution assessed if they are classified as theft by deception under 18 Pa.C.S. § 3922 (relating to theft by deception) and fall under the definition of ''pigeon drop.''
(f) OVS may deny a claim or reduce the amount awarded if it finds that a direct victim, intervenor or claimant has not cooperated fully with law enforcement agencies or OVS. Failure to cooperate includes one or more of the following:
(1) Failure to cooperate fully with a law enforcement agency in the investigation of the crime on which the claim is based.
(2) Failure to cooperate fully in the prosecution of the alleged offender of the crime on which the claim is based.
(3) Failure to provide truthful, complete and accurate information for OVS to determine the eligibility or validity of a claim or amount of an award.
(g) OVS may consider a failure to cooperate with law enforcement and OVS to be justified when one of the following circumstances exist:
(1) The direct victim, intervenor or the claimant is mentally or physically incapacitated.
(2) There is a fear of retaliation.
(3) Other circumstances deemed appropriate by OVS.
(h) If the crime involved is related to domestic violence, the conduct of the direct victim will not be considered unless the direct victim was the primary aggressor. In determining which party was the primary aggressor, OVS will consider the following:
(1) Prior acts of domestic violence.
(2) The relative severity of the injuries inflicted upon the persons involved in those prior acts of domestic violence.
(3) The likelihood of future injury.
(4) Whether, during the prior acts, one of the parties acted in self-defense.
(5) Other factors that OVS deems relevant to the determination.
§ 411.16. Reductions, offsets and limitations.
(a) Except as otherwise provided in the act, an award made under the act and this chapter shall be reduced by the amount of any payments received or to be received as follows by the claimant as a result of the injury:
(1) From or on behalf of the individual who committed the crime.
(2) Under insurance or health and welfare programs, including those mandated by law.
(3) Under a contract of insurance wherein the claimant is the beneficiary.
(4) From public funds.
(5) As an emergency award under section 706 of the act (18 P. S. § 11.706).
(6) Under pension programs, including those providing for disability or survivor's benefits.
(7) Under a settlement or award made by or on behalf of a party alleged to be responsible in whole or in part for the injury, without regard to the party's criminal culpability.
(b) Charitable donations specifically designated for a funeral expense or which appear on a funeral bill as a direct payment and charitable donations specifically designated for an eligible expense or which appear on any bill as a direct payment will be used as an offset.
(c) In claims involving death or burial, OVS will reimburse travel expenses for the transport of a body or making funeral arrangements for no more than two persons, including a person designated by the family or person who pays for the funeral.
(d) In claims involving death or burial, reimbursement will not be made for alcoholic beverages, postage, thank you gifts and newspaper articles or paid advertisements or notices relating to the death or burial, other than the obituary.
(e) When an injury is the result of a motor vehicle incident and the injury is covered by liability or first party benefits, including Under/Insured and Uninsured Motorist coverages, a provider may not request payment in excess of reimbursement allowances applicable in the Commonwealth under the Medicare Program or their usual and customary charge, whichever is less.
(f) Medical, rehabilitation, or other devices, including wheel chairs, chair lifts, ramps, van conversion equipment, therapy spas, or special needs home remodeling that exceeds $5000 will need to have two bids unless good cause is shown. OVS will pay the lowest amount unless good cause is shown justifying the higher amount.
(g) If the direct victim or intervenor has no financial means to order the needed services or equipment that exceed $10,000 listed in subsection (f), OVS will assist the claimant by evaluating the claim prior to purchase and make information available to the potential providers.
(h) In claims involving stolen benefit cash or crime scene clean-up, if a claimant chooses not to access any of his homeowner's or renter's insurance, OVS will apply as an offset any amount that the claimant would have been paid by the insurance company.
§ 411.17. Emergency awards.
(a) If it appears to OVS that the claimant has an urgent financial need, OVS may make an emergency award to the claimant pending a final decision on the claim.
(b) An emergency award is solely for a claimant who incurs an undue hardship by paying medical expenses or funeral expenses out of his own pocket, or who incurred loss of earnings or support as a result of the crime incident.
(c) The total amount of an emergency award will not exceed $1,500 per claim.
(d) OVS will expeditiously determine that the eligibility requirements have been met, review submitted documentation, and process the request.
(e) OVS may reconsider an emergency award at any time prior to the final decision and may increase previous orders for emergency compensation up to $1,500 per claim.
§ 411.18. Awards.
(a) If the losses payable by OVS for out-of-pocket loss and loss of support or loss of earnings exceed the overall monetary limitation in the act, or the overall limitation as reduced by a contribution assessed by OVS under § 411.16 (a) (relating to reductions, offsets and limitations), OVS will allocate the award as follows:
(1) Out-of-pocket losses will be paid in full, followed by as much of the loss of support or loss of earnings as resources allow.
(2) If the total out-of-pocket losses exceed the overall limitation in the act, OVS will attempt to pay unpaid providers in full, followed by reimbursements to claimants for expenses already paid. OVS will attempt to satisfy the expenses of as many unpaid providers as feasible, in order to minimize the number of creditors seeking payment from the claimant.
(3) If more than one claimant files a claim for allowable expenses relating to the death of the victim or the intervenor, the award will be divided proportionately among the claimants when filed within the same time frame. In all other cases, awards are considered in the order that they are received.
(b) A claimant may not accept a portion of OVS's determination and reject another portion of the same determination. If a claimant desires to contest a portion of OVS's determination, the claimant must contest the entire determination.
(c) OVS will reduce an award of compensation by the amount of any other payments received or to be received by the claimant as a result of the injury, as set forth in the act and under § 411.16.
(d) After OVS has made an award relating to an injury, a person who receives any amounts paid by another source as a result of the injury shall notify OVS about the payments.
(e) If a court has ordered an offender to pay restitution for the injury, but the order is not specific as to which components of the claimant's loss are to be reimbursed by the restitution payments, OVS will deem the restitution payments as being applied first to property losses that cannot be compensated under the act. Only after the property losses are fully paid will OVS use the restitution payments to offset for losses for which OVS has awarded or may award compensation.
(f) OVS may make a supplemental award to a claimant who previously received an award from OVS and who subsequently incurs an additional loss that is attributable to the original injury when the maximum award under the law has not been exceeded.
(g) If a claimant is liable for a bill incurred for out-of-pocket losses as a result of the crime injury but has not paid the balance, OVS will order payment to be made directly to the provider of the service.
(h) OVS may reimburse all medical copays and deductibles.
(i) If OVS makes an error in the amount of an award, OVS may seek repayment of the award.
(j) OVS retains the discretion to determine the priority of awards.
(k) In determining whether an injury is a direct result of a crime, OVS may consider a certification by a service provider.
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