[34 Pa.B. 5032]
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APPEALS § 411.31. Reconsideration
(a) A claimant may contest OVS's determination by submitting a written request for reconsideration post-marked no later than 30 days from the date of the determination. If a request for reconsideration is not filed within the time required, the determination becomes a final decision of OVS.
(b) If requesting reconsideration, the claimant shall provide additional information or clarification that would assist OVS in conducting its reconsideration.
(c) Based on further review and additional information or clarification that OVS receives, OVS will issue a reconsidered determination that either reaffirms or modifies its initial determination.
(d) OVS may issue the reconsidered determination as a final decision of the agency if it determines that the facts developed in the claims determination process establish that a particular determination is warranted as a matter of law.
§ 411.32. Hearing.
(a) If OVS is unable to determine if a claim is justified based upon supporting documents, it may direct a hearing before a hearing examiner designated by the OVS.
(b) Except for request for reconsideration falling under § 411.31(d) (relating to reconsideration), a claimant may appeal the reconsidered determination by OVS by requesting a hearing under 2 Pa.C.S. Chapter 7, Subchapter A (relating to judicial review of Commonwealth agency action.)
(c) A claimant may submit a written request for a hearing post-marked no later than 30 days after OVS issues its reconsidered determination. If a claimant fails to file the request for hearing within this time, the reconsideration determination becomes a final decision of OVS.
(d) If requesting a hearing, the claimant shall provide a specific reason why the claimant asserts that OVS's determination is not correct.
(e) A hearing officer who has no previous involvement in any aspect of the claim will be assigned by the OVS.
(f) The provisions of 1 Pa. Code, Part II (relating to general rules of administrative practice and procedures) govern a hearing to the extent they are not inconsistent with this chapter.
(g) At least 30 days before the date of hearing, the claimant, the claimant's attorney, and the victim's advocate will be provided written notice of the time, place and purpose of the hearing.
(h) The claimant shall provide written confirmation to OVS of the claimant's intent to attend the hearing, including a list of witnesses and documentary exhibits to be presented, which must be received by OVS at least 10 days prior to the hearing date. The claimant shall also provide a list of witnesses and documentary exhibits to OVS counsel and the hearing examiner.
(i) Failure to comply with the confirmation requirements in subsection (f) may result in cancellation of the hearing.
(j) A cancelled hearing may be rescheduled if the claimant shows good cause for failure to comply with subsection (f). A hearing will not be rescheduled more than once.
(k) The attorney representing OVS may submit a prehearing memorandum to the hearing officer, with a copy to the claimant, outlining the legal and factual positions of OVS with respect to the claim, and listing witnesses and documentary exhibits to be presented at the hearing. The attorney representing OVS may also issue subpoenas for attendance of witnesses or for production of documentary evidence.
(l) Upon a showing of relevancy and materiality, the hearing officer may issue subpoenas for attendance of witnesses or for the production of documentary evidence.
(m) In conducting the hearing, the hearing officer will liberally allow the admission of evidence that may not conform to the strict rules of evidence under common law or court rules. A stenographer or court reporter shall record the proceedings. Witnesses shall testify under oath.
(n) The claimant shall have the burden of proving entitlement to compensation by a preponderance of the evidence.
(o) Both OVS and the claimant may present testimony in support of their respective positions and cross-examine the opposing party's witnesses.
(p) Hearings generally will be open to the public except that the hearing may be held in camera in any of the following instances:
(1) Prosecution against the alleged perpetrator of the crime is pending.
(2) The welfare and safety of the direct victim, intervenor, or his family or community may be adversely affected by a public hearing.
(3) To protect the rights and interests of a minor.
(q) A claimant may have support persons or victim advocates, or both, accompany him. The number of advocates and support persons may be limited by the hearing officer.
(r) Upon adjourning the hearing, the hearing officer will offer the claimant and OVS's attorney an opportunity to file posthearing briefs, to be filed after the transcript is issued, on a schedule to be determined by the hearing officer.
(s) Upon receipt of the transcript from the stenographer, notification will be sent by certified mail to the claimant that the transcript is available and can be purchased at the claimant's own expense.
(t) OVS will reimburse claimants $20 per day for attendance at a hearing directed by OVS in connection with the claim. Additional expenses will be reimbursed as follows:
(1) Private vehicle usage at mileage rate currently paid by the Commonwealth to its own employees for travel.
(2) Common carrier fares when preapproved by OVS.
(3) Lodging the night before or the night after a hearing session, to a daily maximum of $75, if the claimant must travel at least 50 miles from home for the hearing.
§ 411.33. Final decision after hearing.
(a) The hearing officer will issue a report and recommendation which will be delivered to a designated Commission official who has no previous involvement in the claim.
(b) The designated Commission official will review the report and recommendation, the hearing transcript and the documentary exhibits. The designated Commission official may not have access to information not in the hearing record.
(c) The designated Commission official may not be advised in the hearing process by an attorney or any OVS staff member who has previous involvement with any aspect of the claim that is being heard. The designated Commission official may request the General Counsel of the Commonwealth to appoint an attorney who has no prior involvement to provide advice on the matter.
(d) Upon completing the review of the hearing officer's report and recommendation, the designated Commission official will do one of the following:
(1) Adopt the hearing officer's report and recommendation as written as a final decision.
(2) Modify the report and recommendation and issue the modified document as the final decision.
(3) Reject the report and recommendation in its entirety and prepare and issue a final decision.
(e) The designated Commission official will distribute the final decision to the claimant, the claimant's attorney, the victim's advocate, and to OVS.
(f) The claimant shall have the right of further appeal as set forth in the act or other applicable law.
SCHEDULE OF REIMBURSEMENT RATES AND COMPENSATION LIMITS § 411.41. Amount.
An award made under the act and this chapter shall be in an amount not exceeding out-of-pocket loss, together with loss of past, present or future earnings or support resulting from the injury. The total amount of an award may not exceed $35,000 except for payment of the following:
(1) Counseling, the maximum amount of which shall be in accordance with section 707(b)(4.1) of the act (18 P. S. § 11.707(b)(4.1)).
(2) Forensic rape examination and medications directly related to the exam or for the purpose of the exam, the amount of which shall not exceed $1,000.
(3) Reasonable and necessary costs of cleaning the crime scene of a private residence, the amount of which shall not exceed $500.
§ 411.42. Out-of-pocket loss.
(a) General. The following general provisions apply to reimbursement for out-of-pocket loss.
(1) OVS may make a monetary award for an out-of-pocket loss as it is defined in the act.
(2) OVS may pay the service provider directly or reimburse the claimant for amounts paid, as applicable.
(b) Medical expenses. The following provisions for payment of medical expenses apply:
(1) OVS will pay a hospital or other licensed health care provider at the rate of 70% of the usual and customary charge for the service rendered.
(2) Forensic rape examinations.
(i) OVS will reimburse a maximum of $1,000 to a hospital or other licensed health care provider or both for a forensic rape examination and medications directly related to the sexual assault or rape.
(ii) The reimbursement will not include expenses for analyzing collected evidence for DNA or presence of Rohypnol or other similar drugs.
(iii) Claims shall be filed with OVS no later than 1 year after the date of the crime.
(c) Funeral expenses. Except as otherwise set forth in this subsection, OVS will reimburse for expenses relating to a funeral of a direct victim or intervenor. The total reimbursement amount for funeral expenses will not exceed $5,000. Additionally, within that $5,000 monetary limitation, reimbursement will be subject to the following limitations:
(1) Four thousand eight hundred dollars for funeral services, including the following:
(i) Cremation.
(ii) Interment.
(iii) Body preparation including embalming.
(iv) Grave opening and closing.
(v) Cemetery plot, tent and chairs.
(vi) Mausoleum.
(vii) Viewing services and facilities.
(viii) Automotive equipment, such as the hearse, limousine and flower car.
(ix) Death announcements, prayer cards, register book and thank you cards.
(x) Casket.
(xi) Minister, pastor, rabbi or other member of the clergy.
(xii) Other miscellaneous expenses, including organist, programs, death certificates, and the obituary notice.
(2) Nine hundred dollars for a monument.
(3) Three hundred dollars for floral arrangements.
(4) Three hundred dollars for funeral or memorial meal.
(5) One hundred and seventy-five dollars for clothing purchased for the deceased for the funeral or interment.
(d) Replacement of personal health-related items damaged or stolen as a result of a crime. Except as otherwise set forth in this subsection, OVS will reimburse a claimant for costs for the replacement of each prosthetic device, wheelchair, cane, walker, hearing aid, eyeglasses or other corrective lenses, dental device or prescription medications. Reimbursement will not exceed $1,000 and will be subject to the following limitations:
(1) Two hundred dollars for eyeglass frames.
(2) One thousand dollars for replacement of all combined prescription medications stolen or damaged in a single crime incident.
(3) One hundred dollars for replacement of canes.
(4) Two hundred fifty dollars for replacement for walkers.
(e) Counseling. OVS will pay expenses of counseling performed by or under the supervision of a psychiatrist, psychologist, licensed professional counselor or licensed social worker to claimants as follows:
(1) A maximum of $10,000 in total expenses of a direct victim who was under 18 years of age upon the occurrence of the crime.
(2) A maximum of $5,000 in total expenses of a direct victim who was 18 years of age or older upon the occurrence of the crime.
(3) A maximum of $5,000 in total expenses of any of the following individuals affected by the homicide of a direct victim:
(i) An individual responsible for the welfare of the direct victim, which includes legal guardians and foster parents.
(ii) An individual related in the second degree of consanguinity or affinity to the direct victim.
(iii) An individual residing in the same household with the direct victim.
(iv) An individual engaged to be married to the direct victim.
(4) A maximum of $2,500 in total expenses of any of the individuals described in paragraph (3) affected by a crime against a direct victim that is not a homicide.
(5) A maximum of $1,500 in total expenses of an individual who:
(i) Is physically present at a crime scene and witnesses a violent crime.
(ii) Discovers the body in a homicide.
(6) For counseling expenses relating to a homicide, OVS may not reduce the amount of the award or deny the reimbursement due to the conduct of the direct victim.
(f) Relocation expenses. OVS will reimburse for expenses incurred by the temporary or permanent relocation of a direct victim and individuals residing in the direct victim's household when immediate relocation is necessary to protect their health and safety. This reimbursement will not exceed $1,000 per household for each crime incident for the following:
(1) Relocation expenses to be reimbursed are as follows:
(i) Lodging to a daily maximum of $75.
(ii) Rental of substitute living quarters.
(iii) Utility connection fees, which do not include cable.
(iv) Rental of a passenger vehicle for a total daily maximum of $30.
(v) Private vehicle usage at mileage rate currently paid by the Commonwealth to its own employees for travel.
(vi) Common carrier fares.
(vii) Moving company charges or van rental.
(viii) Tolls and parking expenses.
(ix) Rental of post office box.
(x) Charges for storage of personal belongings.
(xi) Child care expenses.
(2) Reimbursement will be made only when a medical provider, human services provider, or law enforcement representative, which may include a district attorney or other prosecutorial agency, verifies the immediate need for relocation.
(3) OVS may consider a delay past the prescribed immediate need time period to be justified when the direct victim, intervenor, or claimant is mentally or physically incapacitated, there is a fear of retaliation, or other circumstances deemed appropriate by OVS.
(g) Travel expenses. OVS will reimburse expenses associated with travel to obtain medical care or counseling and, in the case of an injury that results in death, for travel in connection with making the funeral arrangements and transport of the body.
(1) Meals totaling no more than $28 per day, with no more than $6 for breakfast, $6 for lunch and $16 for dinner.
(2) Lodging to a daily maximum of $75.
(3) Private vehicle usage at mileage rate currently paid by the Commonwealth to its own employees.
(4) Vehicle rental to a daily maximum of $30.
(5) Payment of a driver other than common carriers needed as result of a crime at maximum hourly rate of $8.
(6) Common carrier fares in full.
(7) Tolls and parking expenses.
(8) Meals and lodging reimbursement is limited to trips of 50 miles or more from the eligible person's home.
(9) Containers or other necessary requirements to transport the body.
(10) In the case of an injury that results in death, for travel in connection with the transport of the body and making funeral arrangements not to exceed 5 days.
(h) Crime scene clean up. The cost of cleaning the crime scene of a private residence up to a maximum of $500.
(i) Reimbursement will be limited to the cost of cleaning supplies purchased for the purpose of cleaning the scene, the cost of any necessary equipment purchased or rented and the cost of professional labor for the purpose of cleaning the crime-scene.
(ii) Multiple private residences may each be considered for crime-scene cleanup if the sites are identified in the police report. The maximum award amount for each crime-scene cleanup is $500.
(i) Miscellaneous expenses. OVS may reimburse a claimant for other services reasonably necessary, including the following:
(1) The purchase or rental of nonmedical remedial care or products that are needed to assist in normal, daily life functions and are prescribed or recommended by a health care provider, such as a wheel chair ramp, lifts or other special accommodations, including equipment or robotic devices needed to assist in normal, daily life functions.
(2) The cost of obtaining services needed as a result of the crime such as laundering, cleaning, child care, administration of medication, food shopping and meal preparation.
(i) Members of the family of the direct victim or intervenor engaged to perform the services will be paid their net loss of earnings not to exceed the average weekly wage and if not otherwise reimbursed for the loss of earnings.
(ii) Individuals engaged to perform services who are not family members who are engaged to perform services will be paid a maximum hourly rate of $8.
(3) At the discretion of OVS, telephone and television expenses incurred in connection with inpatient care of the direct victim or intervenor due to the injury.
(4) At the discretion of OVS, charges incurred for records, products, or services including those for rehabilitation, rehabilitative occupational training, other remedial treatment and care, tutors, and interpreters.
§ 411.43. Loss of earnings.
(a) Stolen benefit cash. An award for stolen cash will not exceed the average weekly wage as determined annually by the Department of Labor and Industry or the actual amount stolen, whichever is less. The actual amount stolen must be indicated in the police report. Changes or amendments to the amount stolen must be made to the police within 2 weeks of the crime and subsequently documented by the police.
(b) Loss of earnings. OVS may make an award within the monetary limitations of the act to compensate a direct victim, intervenor or claimant for loss of earnings attributable to the injury. A loss of earnings must be definitely ascertainable at the time of the injury and may not include a loss that is conditioned upon future events.
(c) Claims involving death. In claims involving the death of a direct victim or intervenor, OVS may pay up to 1 week's net loss of earnings in connection with the death not to exceed the average weekly wage if the claimant was not otherwise reimbursed for the loss. The loss is limited to that suffered by a claimant who incurred a loss of earnings as a result of one of the following:
(1) Trauma as certified by a physician or psychologist.
(2) Making funeral arrangements.
(3) Accompanying the deceased to the place of interment.
(d) The following formula will be used to calculate loss-of-earnings:
Loss of Earnings = Gross Earnings--
Estimated Tax Obligations--Other Benefits Received(e) For purposes of the formula in subsection (d), the following apply:
(1) ''Gross earnings'' include taxable and nontaxable income that was terminated or reduced as a result of injury. Overtime may be included if the claimant demonstrates a history of regular overtime pay or provides verification that overtime is a condition of employment.
(2) Estimated tax obligations include Federal, State and local taxes.
(3) ''Other benefits received'' include disability payments, bereavement pay, cash assistance, food stamps, workers' compensation, restitution or awards or settlements from a civil action or insurance payment.
(f) In calculating gross earnings, OVS may use either a time period immediately preceding the crime, the tax year in which the crime occurred, or the most recent tax year that ended prior to the year of the crime.
(g) As a condition for continuing receipt of loss of earnings benefits, OVS may require the claimant to file a claim for and pursue other benefits to which the claimant may be entitled and which could be an offset to the loss of earnings award.
(h) For a claimant who is self-employed and who continues to operate his business during the period of disability, OVS may compensate the claimant for the amount paid to other persons hired to perform the services usually performed by the claimant.
(i) For a claimant whose unemployment compensation benefits are suspended as a result of the injury, OVS may make an award to replace the suspended benefits.
(j) If the claimant was unemployed at the time of the injury and provides OVS with an affidavit from the employer on company letterhead stating the beginning date of employment, the hours per week to be worked, and the pay rate along with the employer's Federal identification number (FID#) certifying that the claimant was unable to begin because of the injury, OVS may measure loss of earnings based on anticipated earnings that would have been received in the new position.
(k) If the claimant was self-employed for less than a year prior to the injury and the tax records consequently provide a questionable measure of the claimant's earning potential, OVS may measure gross earnings by using the claimant's earnings as an employee for the period immediately prior to the start of the claimant's business.
(l) If a claimant is self-employed and is unable to fulfill a contract negotiated and signed prior to the crime due to the injury, OVS may consider the lost net income.
§ 411.44. Loss of support.
(a) OVS may make an award within the monetary limitations of the act to compensate an eligible person or persons who, as a consequence of the injury causing the death of a direct victim or intervenor, is deprived of the financial support that the direct victim or intervenor had been required by court order to provide or had actually been providing at the time of the injury that caused the death. When a court-ordered support obligation is in effect at the time of an injury causing the death, the following formula will be used to calculate loss of support:
Loss of Support = Support--Other Benefits Received
(b) For purposes of the formula in subsection (a), the following apply:
(1) ''Support'' includes annual support based on obligation specified in the order plus any amount in arrears due to the claimant at time of death.
(2) ''Other benefits received'' include restitution, insurance benefits, Social Security or pension benefits and awards from civil actions.
(c) When no court-ordered support obligation is in effect at the time of an injury causing the death of a direct victim or intervenor, the following formula will be used to calculate loss of support:
Loss of Support = Support--Other Benefits Received
(d) For purposes of the formula in subsection (c), the following apply:
(1) ''Support'' includes the gross earnings less estimated tax obligations multiplied by 80%. Gross earnings include all taxable and nontaxable income that terminated at time of death such as wages, business income, retirement payments, Social Security payments and other benefits.
(2) ''Other benefits received'' include restitution, insurance benefits, Social Security or pension benefits and awards from civil actions.
(3) Loss of support must be definitely ascertainable at the time of the injury that caused the death and may not include a loss that is conditioned upon future events.
(e) In applying the formula in subsection (c), the following conditions apply:
(1) A surviving spouse or dependent child will be allocated up to 80% of the net annual earnings of the victim or intervenor.
(2) A surviving parent will be allocated the actual amount of support provided by the direct victim or intervenor, not to exceed 80% of the net annual earnings.
(3) Any other person dependent upon the direct victim or intervenor for principal support will be allocated the actual amount of support provided by the direct victim or intervenor, not to exceed 80% of the net annual earnings.
(f) When calculating loss of support, OVS may consider as applicable, the life expectancy or labor force participation expectancy of the direct victim or intervenor, or the age of the dependent.
(g) In calculating gross earnings, OVS may use either a time period immediately preceding the crime, the tax year in which the crime occurred, or the most recent tax year that ended prior to the year of the crime.
(h) If the direct victim or intervenor was not employed at the time of the crime, OVS may use employment history up to the 3 years immediately preceding the crime to estimate potential support that would have been provided to an eligible person.
(i) If more than one person is eligible for a loss of support award, OVS will allocate each a share of the total annual amount based on OVS's determination of fairness and equity under the circumstances of the claim.
(j) If the total uncompensated loss of support for two or more eligible persons exceeds the monetary limitations set forth in the act, the limited resources will be distributed at the discretion of OVS proportionately among the eligible persons.
(k) OVS may provide lump sum or accelerated payments for loss of support. The calculated maximum can be dispersed in one lump sum if extenuating circumstances necessitate, or under lesser conditions, paid out in a 3 year or 5 year payment plan. Also, if the total projected award is of a lesser amount, and extended yearly payments are impractical, the award will be paid in total in a single sum. In claims in which OVS makes protracted payments into the future, the claimant is subject to a continuing obligation to provide information that OVS requests. Failure to provide this information when requested may result in the suspension of future, payments or may require repayment of prior accelerated payments.
(l) The claimant or the recipient of a loss of support award has a continuing obligation to report to OVS any change in circumstances, such as if the recipient obtains a new source of support. In these circumstances, OVS may terminate or reduce protracted payments made under the original award.
(m) When an award for loss of support is paid to a person for the benefit of another person, OVS may require the payee to file a periodic accounting of OVS's payments or take other action as OVS may determine necessary and appropriate for the benefit of the beneficiary.
(n) As a condition for continuing receipt of loss of support benefits, OVS may require the claimant to file a claim for and pursue other benefits to which the claimant may be entitled to offset the loss of support benefits.
(o) At any time, OVS may reconsider and modify a future loss of support award previously issued or a protracted payment if another eligible person qualifies for a loss of support award.
(p) Gifts of property or money bestowed upon the dependent on special occasions may not be considered in making a determination of dependency.
MISCELLANEOUS § 411.51. Subrogation.
(a) Payment of an award made under the act shall subrogate the Commonwealth, to the extent of any payment, to any right of action against any person according to the claimant, the direct victim, or the intervenor to recover losses resulting from the crime with respect to which the award is made. In such a case, the Commonwealth shall be entitled to bring an action against the person causing or otherwise liable for the personal injuries or death for which the payment was made. Money recovered under this section shall be deposited in the Crime Victim's Compensation Fund established under the act.
(b) If an amount greater than that paid under the act is recovered and collected in such an action, the Commonwealth will pay the balance to the claimant. The Attorney General will enforce any subrogation. A claimant who failed to notify OVS of the receipt of funds from another claim or award arising out of the crime shall forfeit and pay to the Commonwealth an amount equal to all awards paid by OVS to the claimant or on the claimant's behalf.
(c) The OVS Director has the discretion to settle subrogation claims for an amount less than the award. Under no circumstances will OVS settle subrogation claims for an amount that is less than 75% of the original award to the claimant. OVS reserves the right to assert further subrogation on additional recovery by the claimant. If the direct victim or intervenor incurs additional expenses related to the injury, the claimant must exhaust the actual insurance or civil recovery as well as the amount OVS reduced prior to receiving further payments from OVS.
§ 411.52. Representation by attorney.
(a) The rules in 1 Pa. Code, Part II (relating to general rules of administrative practice and procedures) apply to the representation of a claimant by an attorney before OVS or in a hearing related to a claim submitted to OVS.
(b) If an attorney has filed a notice of appearance on behalf of the claimant, the notice shall remain in effect until one of the following occurs:
(1) The claimant files with OVS a written revocation of the authority of the attorney.
(2) The attorney files with OVS a written statement of withdrawal from the case.
(3) The attorney makes a statement of withdrawal from the case on the record at a hearing.
(4) OVS receives notice of the license suspension or revocation or the death of the attorney.
(c) During the period in which a notice of appearance filed under this section remains in effect, OVS may communicate with the attorney instead of the claimant. Service upon the attorney shall be deemed effective service upon the claimant.
(d) An attorney who represents a claimant before OVS may receive a fee for that representation only under the provisions of the act. After OVS makes an award, the attorney may request that OVS pay attorney's fees and costs by filing with OVS an affidavit of services, listing the nature of each service rendered and the amount of time spent in rendering the service, plus an itemized list of costs incurred in the preparation, procuring, and filing of record papers regarding the claim.
(e) In evaluating applications for attorney's fees, OVS will consider the following factors:
(1) The time and labor required.
(2) The novelty and difficulty of the questions.
(3) The skill needed to perform the legal service properly.
(4) Awards and similar claims.
(f) A payment for attorney's fees shall be in addition to the award made to the direct victim, claimant or intervenor, but may not exceed 15% of that award. OVS may not reduce an award to a direct victim on account of payment of attorney's fees.
(g) OVS may award no more than $75 per hour to an attorney in the preparation and presentation of a claim that is awarded.
(h) It is unlawful for an attorney to contract for or receive a sum larger than the amount allowed.
(i) OVS may deny or reduce an award for attorney's fees if an attorney asserts a false claim as to the time spent on a matter concerning OVS or asserts a false claim as to the services rendered to a claimant. OVS may refer the matter to the Disciplinary Board of the Pennsylvania Supreme Court, the Attorney General, or other appropriate authorities.
§ 411.53. Prohibitions.
(a) Providers who write off bills to a direct victim or intervenor may not at any point following the write off seek reimbursement from OVS, direct victim or intervenor.
(b) A funeral director who assumes the obligation to pay for funeral expenses may not seek reimbursement from the direct victim or intervenor's family.
(c) A person who assumes the obligation for crime scene clean up may not seek reimbursement from the direct victim or intervenor's family.
[Pa.B. Doc. No. 04-1686. Filed for public inspection September 10, 2004, 9:00 a.m.]
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