RULES AND REGULATIONS
Title 37--LAW
COMMISSION ON CRIME AND DELINQUENCY
[37 PA. CODE CHS. 191 AND 411]
Crime Victims Compensation
[36 Pa.B. 7815]
[Saturday, December 23, 2006]The Commission on Crime and Delinquency (Commission) deletes Chapter 191 (relating to general provisions) and adopts Chapter 411 (relating to crime victims compensation) to read as set forth in Annex A.
Purpose and Authority
This final-form rulemaking deletes Chapter 191 and replaces it with regulations specific to the Office of Victims' Services (OVS). The new regulations will be adjoining other regulations pertaining to the Commission or its other offices. The final-form rulemaking reflects the substantial statutory changes that have occurred since 1989 when regulations affecting the Crime Victims Compensation Program were most recently amended. New regulations are needed to conform to the new requirements of the section 312(13) of the Crime Victims Act (act) (18 P. S. § 11.312(13)). The final-form rulemaking will simplify or clarify many of the OVS's claims processing and determination and appeal procedures. In addition, this 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).
This final-form rulemaking is adopted under the authority of the act (18 P. S. §§ 11.101--11.5102). Section 312(3) of the act, empowers the OVS to ''adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of Chapter 7.'' Section 312(13) of the act also empowers the OVS to ''establish compensation limits and reimbursement rates for the purpose of carrying out the provisions of Chapter 7.''
Comments and Response
Notice of proposed rulemaking was published at 34 Pa.B. 5032 (September 11, 2004) with a 30-day comment period. During the 30-day comment period, comments were received from the Crime Victim Center of Erie County, Inc; Victim Witness Services of South Philadelphia; Victim Services Division of the Cumberland County District Attorney's Office; Network of Victim Assistance (Bucks County); Lancaster County Victim/Witness Services; Pennsylvania Coalition Against Domestic Violence; House Judiciary Committee (Committee); and the Independent Regulatory Review Commission (IRRC).
The Crime Victim Center of Erie County, Inc., wrote in support of the proposed regulations in particular to the definition of ''immediate need'' relative to relocation.
The Pennsylvania Coalition Against Domestic Violence wrote in support of the proposed rulemaking highlighting the following areas of 37 Pa. Code:
Section 411.11(g). Filing procedures. When a Protection From Abuse (PFA) is withdrawn or denied--''Although victims of domestic violence file approximately 50,000 Protection From Abuse cases annually, we recognize that many victims choose to withdraw their orders in order to secure safety. Studies show that victims are most at risk for retaliation or abuse when they separate from the perpetrator of abuse. The Commission's decision to include specific guidelines for justification of this safety choice will help many survivors of domestic violence.''
Section 411.15(h). Determining Primary Aggressor. ''Unfortunately many victims of domestic violence are forced to use physical means to protect themselves when a perpetrator attacks them. These situations sometimes result in a confusing situation for law enforcement to assess. The aforementioned provision allowing for a determination of primary aggressor permits OVS to consider factors that are relevant to many victims of domestic violence. We applaud the inclusion of this section in the proposed regulations.''
Section 411.15(g). Failure to Cooperate. ''Many victims of domestic violence are forced to choose between their future safety and cooperation with law enforcement when a charge or complaint is filed. While this failure to cooperate may seem arbitrary to law enforcement, it is clear that these proposed regulations grant credibility to victims who make the choice to protect themselves rather than cooperate.''
Section 411.42(f). Reimbursement for Relocation Expenses. ''There is a cost to safety. The cost of safety includes relocation or acquiring temporary housing. The meaningful and substantial resource that the proposed regulations permit will save lives, encourage victims of domestic violence to seek help and move our culture closer to the goal of ending domestic violence. We are grateful that the relocation expenses include both temporary and permanent relocation. This allows flexibility for victims.''
The Coalition supports this priority and general tone in the proposed regulations that accepts the complex choices and options victims of domestic violence face everyday.
Following is a summary of the comments and the Commissions response to those comments:
§ 411.2 (relating to definitions)
Comment: IRRC recommended that the definition of ''dependent child'' be clarified by replacing ''Eighteen years of age or younger'' with ''Under 18 years of age'' to remain consistent with the act.
Response: The Commission concurs and revised the definition. In addition, to remain consistent with the act, ''19'' was deleted and replaced with ''18.''
Comment: The Committee and IRRC expressed concerns about the clarity of the proposed amendment regarding the definitions of ''loss of earnings,'' ''stolen benefit cash'' and ''cash equivalent.''
Response: The Commission concurs and deleted the definition of ''loss of earnings,'' as it was already defined in the act. The Commission deleted the definition and any reference to ''stolen benefit cash,'' as it is an internal processing term used to describe a specific type of claim. The Commission also deleted the definition for ''cash equivalent,'' as it was clarified in § 411.43 of this final-rulemaking.
The statute references the ability to consider an award when a victim of crime is unable to work as a result of the injury versus a victim of crime who has had money stolen or defrauded and whose primary source of income is derived from a fixed source such as social security, pension, etc. This is delineated in the act under the definition of loss of earning as well as section 707 of the act (18 P. S. § 11.707). Since there are two different ways for a crime victim to be compensated for lost income with specific monetary limits for each, the Commission opined it was important to delineate the different eligibility requirements as well as the required documentation.
Under § 411.43(a) (relating to loss of earnings), the Commission replaced the term ''direct victim'' with ''victim'' to be consistent with the statutory definition.
In addition, to provide clarity on the allowable reimbursement limit, the Commission added, ''in no instance would payment exceed the amount stolen.''
Comment: Lancaster County Victim/Witness Services and Victim Witness Services of South Philadelphia expressed concern that the definition of ''immediate need'' be changed to provide a longer period than 30 days from the date of the crime or change in circumstance or indicator of danger. It was suggested that this 30 day time frame was not an adequate amount of time to provide for the complications victims incur in those 30 days, which inhibit them from moving. These complications may include: the need to find a new place to live, relocation of children who may be subject to custody orders or school changes, pending legal proceedings, or raising sufficient moneys to make the initial move. Many victims can find a temporary hiding place with family or friends, but when they find a place to seek a permanent refuge, it may be too late to apply.
Response: The term ''immediate need'' is included under the definition of ''out-of-pocket loss'' in the act. It states, in part: ''(4) expenses resulting from the temporary or permanent relocation of a direct victim and individuals residing in the household of the direct victim due to the incident forming the basis of the victim's claim when there is an immediate need to protect the safety and health of the victim and individuals residing in the household, as verified by a medical provider, human services provider or law enforcement.''
The intent focused on victims whose lives were in danger because of the crime, and had the desired result of meeting the victim's immediate needs to protect their safety and health. Adding this benefit by statute was never intended to cover or address all aspects of the need for victims to relocate. OVS is cognizant of the unique circumstances that victims face and has the authority to consider delays past the 30-day time period. Specifically, § 411.42(f)(3) states that ''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 where good cause is shown by the claimant.''
§ 411.11 (relating to filing procedures)
Comment: IRRC commented that this section does not include time frames for filing claims for compensation with OVS or time frames for reporting the crime to proper authorities.
Response: The Commission concurs and included a reference to the act that outlines requirements for timely filing and reporting. See sections 702(b) and 707(a)(3) of the act (18 P. S. §§ 11.702(b) and 11.707(a)(3)).
Comment: IRRC recommended that § 411.11(a) (relating to filing procedures) also reference § 411.3(a) (relating to persons eligible for compensation)
Response: The Commission has revised this section to add the suggested reference.
Comment: The Committee expressed concern that the list contained in subsection (f)(1) may deter a direct victim or intervenor with a legitimate claim from filing an application for compensation. The Committee suggests that this paragraph be amended to clearly indicate that this list is not exclusive and that OVS retains the authority to determine on a case-by-case basis, whether a direct victim or intervenor reported the occurrence of the crime to a ''proper authority.''
Response: The Commission reviewed this list and determined that the Commission does not require further discretion in this area. However, the Commission has included United States Postal Inspection Service, which is the law enforcement arm of the postal service. As is with the FBI, they investigate and refer cases to the United States Attorney's Office for possible prosecution.
Comment: The Committee suggested that a definition of ''the occurrence of the crime'' be included in the final-form rulemaking so that the time period for filing does not begin to run until the crime is actually discovered. The Committee believes that a definition would be consistent with the intent of the act, that is the restoration of crime victims to their precrime status and a definition would treat all eligible claimants in a uniform manner.
Response: On November 19, 2004, Governor Rendell signed legislation H.B. 2396. This legislation became effective on January 19, 2005, and amended the filing time for a compensation claim. The amendment states in part, ''A claim must be filed no later than two years after the discovery of the occurrence of the crime upon which the claim is based.'' OVS has incorporated this amendment into § 411.11 (g) of the final rulemaking.
Comment: The Committee was concerned that the three requirements for not utilizing an insurance plan for medical or counseling may not suffice in all cases. The Committee recommends that OVS retain the authority to decide on a case-by-case basis whether a victim or intervenor had legitimate justification for not utilizing their insurance plan.
Response: The Commission concurs and has revised § 411.11(k)(1) and (5).
Comment: IRRC and the Committee suggest the Commission add requirements that would justify a victim not utilizing their homeowner's or renter's insurance.
Response: Claimants have a choice whether to access their insurance. They do not have to provide written justification to OVS as to why they did not access their insurance. § 411.16(i) (relating to reductions, offsets and limitations) states, ''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.''
Exceptions to insurance usage for financial decisions are not supported by the OVS.
Comment: IRRC recommended that the Commission clarify what information is required for a claimant who witnesses the crime for the purpose of seeking reimbursement for counseling expenses.
Response: The Commission has clarified the requirements under § 411.11(k)(5).
Under § 411.11(h) OVS has replaced ''OVS will ask the claimant to submit confirmation of the issuance of a final PFA order'' with ''OVS will confirm the disposition of a final PFA order.'' In some instances, the Commission has the ability to access this information directly and would not need to require this information from the claimant.
§ 411.12 (relating to review)
Comment: The Pennsylvania Coalition Against Domestic Violence requested that § 411.12(d) be amended to ensure that OVS will not request or review records or files of domestic violence counselor/advocates. The term ''domestic violence counsel/advocate'' is limited to the definition provided in 23 Pa.C.S. (relating to domestic relations). As such, no subpoena or subpoena duces tecum should be issued to any domestic violence counselor or advocate.
Response: The Commission did not amend this section. The Commission's intent is to uphold any statutory provisions that protect privileged and confidential information for victims of crime. Section 709 of the act states in part, ''All reports, records or other information obtained or produced by the bureau during the processing or investigation of a claim shall be confidential and privileged, shall not be subject to subpoena or discovery, shall be used for no purpose other then the processing of a claim.'' In addition, domestic violence programs have their own statutory privilege as outlined in 23 Pa.C.S. § 6116 (relating to confidentiality).
It is also important to note that 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. Counseling may only be considered as a reimbursable expense when the service is provided by or under the supervision of a psychiatrist, psychologist, licensed professional counselor or licensed social worker. OVS could not provide reimbursement to domestic violence counselor/advocates, therefore OVS would have no statutory authority to request counseling records from them.
Comment: The Committee is of the opinion that the intent of the statutory provision upon which § 411.12(a) (relating to review) is based is to ensure that the OVS conducts an examination of each claim and any supporting documentation to prevent fraud. The proposed regulation and statute both state in relevant part that the OVS investigation shall 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.'' The Committee is of the opinion that it is not the legislative intent of the statutory provision to require that an investigation into every claim require that each of the referenced items be examined, but rather that OVS examine such records and reports as necessary in order to ensure that a claim is legitimate. For example, it is the opinion of the Committee that a claim based upon the abuse of a child according to the official records of a county child protective services agency as reported to police should not be denied because the police department who received the complaint has not provided OVS with a copy of the police record or report further confirming the complaint. The Committee suggests that this section clarifies this point.
Response: The Commission has added language to address this concern. It is the Commission's intent, in the case of a child or a vulnerable adult, to accept a crime report to law enforcement or to a child or adult protective services agency from a mandated reporter.
§ 411.13 (relating to closing of claims)
Comment: Bucks County indicated that the closing of claims is confusing. Specifically, they asked if subsection (e) overrides subsections (c) and (d)? In addition, they indicated that the 5 year case closure for cases with no out-of-pocket expenses is unrealistic for child sexual assault and other PTSD cases, all of which may result in counseling needs several years beyond the crime or reporting of the crime.
Response: Section 411.13(e) does not override the deadline established in subsections (c) and (d). Rather, it provides OVS with a mechanism to reopen claims when additional information is received that would contradict a prior decision.
The Commission concurs that 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 with no further right of appeal, is not appropriate where the direct victim is a minor. Section 411.13(e) has been added for clarification.
§ 411.14 (relating to determinations)
Comment: Bucks County, members of the Committee and IRRC commented on the clarity and reasonableness of subsection (a). This subsection states ''a claimant may provide additional information or clarification on the claim post-marked no later than 30 days from the date of OVS's initial determination . . . .'' Does this mean the date on which the claimant receives notice of the initial determination?
Response: It has been a long standing practice (for more than 15 years) to use 30 days from the date of the determination. It is fairly rare for a claimant to not be able to file a request for reconsideration or a request for a hearing within 30 days. However OVS did add justification to accept a delay past the prescribed time frame under §§ 411.31(b) and 411.32(d) (relating to reconsideration; and hearing).
Comment: Members of the Committee and IRRC commented on subsection (c) which outlines a list of individuals that may receive a copy of OVS's final determination. It was suggested that the district attorney having jurisdiction where the crime occurred be added to this list. Section 1106(c)(4) of the act (18 P. S. § 11.1106(c)(4)) requires district attorneys to make recommendations to the sentencing court for the amount of restitution. Notice from OVS regarding a claim determination will assist the district attorney in meeting this requirement.
Response: The Commission has revised § 411.14(c) to indicate that the prosecutor of the county where the crime occurred may be copied on the final decision.
§ 411.15 (relating to actions affecting awards)
Comment: Bucks County and IRRC recommended that this section be amended to more closely relate to the conduct of the direct victim or intervenor. Both commentors expressed concern with the standard that the direct victim or intervenor used poor judgment resulting in the placement of a situation likely to result in injury. It was relayed that the term ''poor judgment'' is subjective and open to broad interpretation.
Response: The Commission has deleted the term ''poor judgment'' and revised § 411.15(a) and (f) providing clarification in determining whether the conduct of a direct victim or intervenor contributed to the injury.
Comment: IRRC recommended that the proposed language of § 411.15(c) be revised to clarify intent.
Response: The Commission has revised the language to clarify the intent.
In addition, the Commission has revised the language of § 411.15(f) to clarify the circumstances of OVS's denial of a claim for failure to fully cooperate with law enforcement agencies. The claimant is required to cooperate with law enforcement agencies throughout the entire proceeding. OVS has discovered that in some instances, once a claimant receives a payment from OVS they refuse to assist the prosecution further in the case. In these instances, OVS has a policy to deny future awards as well as require repayment of a prior award. Accordingly, the following language ''will require repayment of a prior award,'' has been added in order to put all claimants on notice of this practice and to codify existing practice.
Comment: IRRC requested clarification in that subsection (g) states OVS may consider a failure to cooperate with law enforcement and OVS justified when a number of situations occur. IRRC questioned if minors are able to cooperate with OVS?
Response: The Commission has included language under § 411.15(g) that ''OVS may consider failure to cooperate with law enforcement and OVS . . . when the victim is a minor.'' This type of decision would be made on a case-by-case basis taking into consideration the circumstances of the crime and the age of the victim.
§ 411.16 (relating to reductions, offsets and limitations)
Comment: The Committee commented on § 411.16(a) that any decision by OVS to reduce, offset or limit an award to a claimant should only be made after first considering the ability of the Board to exercise its right to subrogation and restitution. IRRC agreed.
Response: The Commission concurs and has revised this section.
Comment: IRRC recommends for clarity that the Commission reference the sections that deal specifically with Medicare reimbursement allowances as a result of a motor vehicle incident under § 411.16(e).
Response: The Commission included the appropriate cite.
Comment: The Victim Services Division, Cumberland Co. District Attorney's Office recommended that in the cases of homicide, the survivors should not have to use life insurance coverage before they can apply for compensation.
Response: This would require an amendment to section 707(e) of the act.
Comment: Lancaster County Victim/Witness Services requested that § 411.16(e) be clarified to consider the payment to have the notice of the time and place of the funeral listed in the paper.
Response: The Commission concurs and clarified this subsection.
Comment: Lancaster County Victim/Witness Services requested consideration to lower the amount of $10,000 to $5,000 in the cases where the direct victim or intervenor has no financial means to order needed services or equipment. In these cases, OVS will assist the claimant by evaluating the claim prior to purchase and make information available to the potential providers.
Response: The Commission concurs and has revised § 411.16(h) to reduce the amount from $10,000 to $5,000.
§ 411.31 (relating to reconsideration)
Comment: IRRC expressed several concerns with subsection (a) which allows a claimant to contest OVS's determination ''by submitting a written request for reconsideration postmarked no later than thirty (30) days from the date of determination.''
First, how will the claimant know when the 30 day period began? Section 704(d) of the act requires OVS to promptly notify the claimant of its final decision. IRRC also noted that the 30 day period for judicial review under section 705 of the act begins 30 days after the claimant receives a copy. The regulation should specify that the claimant has 30 days from receipt of OVS' determination.
Second, the requirement of a postmark would limit the method of filing. This subsection should be amended to be similar to § 411.11(c), which allows several methods of filing, including electronic means.
Response: It has been a long standing practice (more than 15 years) to use 30 days from the date of the determination. It is fairly rare for a claimant not to file a request for reconsideration or a request for a hearing within 30 days. However, OVS did add justification to accept a delay past the prescribed time frame.
For clarification, the 30 day period for judicial review under section 705 of the act refers to the final decision prior to appealing to Commonwealth Court. The Commission inadvertently included a reference to the Commonwealth Court under § 411.32(b) and has removed this reference.
Also, the Commission has removed the reference to a ''postmark'' in §§ 411.14(a), 411.31(a) and 411.32(c), allowing for several methods of filing, including electronic means.
§ 411.32 (relating to hearings)
Comment: IRRC and the Committee suggested that § 411.32(h) be amended to clarify whether the submission of a list of documentary exhibits will satisfy the requirements imposed, or if the actual documentary exhibits must be provided. This section also requires that the claimant must provide a list of witnesses and documentary exhibits to OVS counsel and the hearing examiner. The Committee suggests that this duplication of effort not be required.
Response: The Commission has revised this section to clarify the requirements of the claimant and also who the claimant must respond to. The claimant will not need to provide required information to OVS counsel and the hearing examiner.
Comment: IRRC expressed concern that a hearing will not be rescheduled more than once. IRRC questioned the hearing examiners flexibility to review the reason the claimant did not attend and, based on that information, make a determination on whether another hearing should be scheduled.
Response: The Commission has revised this section to provide OVS with discretion to allow a hearing to be rescheduled if there is a showing of good cause.
Comment: The Committee and IRRC recommended that if it is the intent that a claimant may subpoena for the attendance of witnesses or for the production of documentary evidence, this subsection should clarify intent and procedures for requesting and obtaining these subpoenas.
Response: The Commission has revised this section to clarify the claimants ability to subpoena for attendance of witness or for the production of documentary evidence.
§ 411.33 (relating to final decision after hearing)
Comment: IRRC expressed concern that this section does not contain any time frame for the hearing officer to deliver the report or for OVS action on the report.
Response: Consistent with 1 Pa. Code § 35.202 (relating to proceedings in which proposed reports are prepared) and other Commonwealth agency regulations, OVS does not see the need to add a time frame within which the hearing officer must deliver the hearing report. While we recognize there are at least three other agencies' regulations requiring a time frame, we are not inclined at this time to add this requirement.
§ 411.41 (relating to amount)
Under § 411.41(2), OVS inadvertently revised what the $1,000 limit includes. This section was revised to remain consistent with the act and statement of policy.
Comment: Bucks County expressed a concern that the limit on crime scene clean up is low for its geographical area.
Response: The Commission conducted a comparison of the amount of bills submitted for crime scene cleanup versus the amount the OVS has paid. The analysis was completed in the fall of 2004. OVS paid 13 claims since the inception of this benefit. Of those claims, eight were paid at 100%, three were paid at 75% or higher, one paid between 25% and 49%, and one paid between 0% and 24%.
Also, of the 13 claims, only 5 requested more than $500. Based on the review, OVS, at this time, cannot justify increasing the cap for crime scene cleanup.
Comment: Victim Services Division of the Cumberland County District Attorney's Office expressed a concern that the $200 amount for the loss of eyeglasses in § 411.42(d)(1) is too low. Crime victims should be able to replace their exact glasses that they had at the time of the crime and this might (in many cases) exceed the $200.
Response: This limit applies to the replacement of personal health-related items damaged or stolen as a result of a crime. The $200 applies only to the frames. Lenses are not a part of the $200 limit.
Comment: Bucks County expressed a concern that the $35,000 limit is not realistic when medical bills and loss of support or earnings are involved. Although the reimbursement reduction to 70% of medical costs certainly helps, several Bucks County victims have lost work time or support and had surgical procedures that have easily totaled more than $35,000. This has become even more prevalent with the astonishing increases in health care costs in the past few years. IRRC noted that several commentators have indicated that current monetary limits, such as funeral expenses and the overall $35,000 cap are not sufficient and that OVS should explain how the dollar amounts were derived, and why they are reasonable.
Response: There are several methods that may be utilized to determine a monetary limit. The National Association of Crime Victim Compensation Boards (NACVCB) is a national repository for data provided by the 50 member states, the District of Columbia, Puerto Rico and the Virgin Islands. Through the NACVCB, statistics such as funding sources, eligibility requirements, procedures, benefits and compensable costs are available. Prior to considering a change, the NACVCB data is factored into the equation to see how Pennsylvania compares to other states. OVS has found this data method to be reasonable and an accurate outlet for comparison purposes. Also, OVS staff query data sets from our existing DAVE System database to see, for example, what the actual payouts for a particular benefit type are during a set time period. Depending on the situation, VCAP staff may also contact providers in predetermined geographic areas of this Commonwealth to determine what the ''going rate'' is for a particular service to see if our method and amount of compensation is high, low, or proper for the service rendered. In addition, the solvency of the fund is always taken into consideration when adding or amending a monetary limit.
Comment: Bucks County requested that this regulation include preapproval of dental care, plastic surgery, vision or eye care, prosthetics and pharmacy costs because victims are denied nonemergency care when they cannot guarantee payment. In addition, IRRC inquired whether there was a way for a victim to demonstrate need for nonemergency medical care before the procedure is done and can a provider be paid directly?
Response: Section 411.16(g) allows OVS to assist the claimant by evaluating the claim prior to purchase and make information available to the potential providers when a victim does not have the financial means to order needed services or equipment that exceeds $5,000. In addition, OVS must pay providers directly for services rendered when the bill has not been paid by the claimant.
Comment: Bucks County expressed a concern that dentists, orthodontists, optometrists and doctors of physical medicine rely on outside vendors to make glasses, crowns and prosthetic devices, and the 70% reimbursement is not acceptable to them. Therefore, in its experience, many victims go without this care.
Response: Section 708(b) of the act states in part, ''Medical expenses, except as otherwise provided, shall be paid to a hospital or other licensed health care provider on behalf of the victim at a rate set by the Office of Victims' Services.''
This final-form rulemaking defines ''licensed health care provider'' to include any 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. The term includes ''medical doctor,'' ''osteopathic physician,'' ''chiropractor,'' ''dentist,'' ''registered nurse,'' ''optometrist,'' ''pharmacist,'' ''physical therapist,'' ''podiatrist,'' ''psychologist,'' ''licensed professional counselor'' and ''licensed social worker.''
If a provider of service was to be granted an exemption to the 70% reduction, it would require an amendment to the act.
Comment: The Committee commented that travel expenses for funeral arrangements should be allowed as an out-of-pocket loss, but should also be required to be ''reasonable and necessary.'' IRRC agreed with this comment.
Response: The Commission concurs and has revised § 411.42(g).
Comment: Bucks County expressed concern that the definitions on what constitutes crime scene clean up are too restrictive. In a recent case, a bloody mattress was covered for cleaning, but not for replacement. It would have been less expensive to replace the mattress and, as the victim said, ''who would want to keep the mattress where someone had been stabbed?'' In another case, a wounded victim left his house and escaped in his car. Though both needed cleaning, only the house was covered; this was hard to explain to the victim.
Response: Currently, the act does not allow for reimbursement of out-of-pocket losses for property damage, except as otherwise provided within the law. Replacing property that has been stained as a result of the crime injury would require an amendment to act.
It is also important to note that the OVS receives 60% reimbursement from the Federal government for each State dollar spent for eligible reimbursements to victims of crime. The Federal guidelines state that states may not include property replacement or repair cost, except for replacement of locks and windows, and replacement of bedding and clothing held as evidence, in their annual certification of payments. If a statutory change occurred and OVS were to pay for replacement costs, the Crime Victim's Compensation Fund would bear 100% of cost.
In addition, the regulations could not include the clean up of a car. Section 103 of the act (18 P. S. § 11.103) under the definition of ''out-of-pocket loss'' specifically states, ''costs of cleaning the crime scene of a private residence.'' The cleaning of a car that has been stained as a result of the crime injury would also require amendment to the act.
Comment: The Committee and IRRC suggested that the statutory definition of ''cleaning'' be included in the regulations and that language be included in the regulatory definition to clarify for claimants the types of stains for which compensation will be made to cover the cost of their cleaning. The Committee believes that the intent of the General Assembly in enacting the statutory authorization to pay claims to cover the cost of crime scene clean up was to ensure that payment may be made to cover the cost associated with the clean up of blood and stains caused by other bodily fluids as a direct result of the crime, or other dirt and debris caused by the processing of the crime scene. Stains deliberately caused by acts of vandalism and other intentional acts are property damage and are expressly excluded from the definition of ''out of pocket loss'' contained in the act.
Response: The Commission has added language to § 411.42(h) specifically adding subparagraphs (iii) and (iv) to clarify these concerns.
§ 411.43 (relating to loss of earnings)
Comment: Victim Witness Services of South Philadelphia acknowledged that the funeral expenses section is wonderful and helps a number of families pay for a funeral. However, this agency suggests that more can be done for loss of earnings in the case of a homicide. At this time, OVS only covers up to 1 week of loss of earnings per claim. This Program has worked with a number of parents whose children have been murdered, and they are unable to return to work right away because of the trauma. It is understood that there need to be limits, but 1 week is inadequate. If the claimants are able to show documentation from a doctor that they are unable to work, this should allow for additional time, with perhaps a cap of up to 3 months. This would give parents, and other family members, a chance to get back on their feet without their finances being totally depleted. Loss of earnings should also be made available to both parents. In many cases, the parents of the slain child are not living in the same household and may be supporting two separate families. Loss of earnings should not be awarded to one parent just because they filed their claim quicker than the other. Both parents should be entitled to the same funds.
Response: OVS recognized the inequity in allowing only one individual to file for loss of earnings in homicide cases. The final rule allows for each eligible claimant to file for up to 2 weeks 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.
Under § 411.43(c)(1) OVS inadvertently added ''as certified by a physician or psychologist.'' This reference is misplaced. Section 411.11(f)(3) sufficiently delineates the requirements to process a claim for loss of earnings.
Comment: Bucks County expressed concern with the fact that the use of sick, vacation and personal time, often occurs in the early aftermath of the crime when victims are unaware of the availability of compensation. They are then left with little or no paid time for an unrelated illness or vacation. If they had taken the initial time to deal with crime related matters as unpaid, they would have been eligible for compensation. Many victims feel this is unfair.
Response: In the calculation of loss of earnings, the final rule requires OVS to offset the award by ''other benefits received'' which include employer-paid-leave.
This requirement is mandated under section 707(b)(2) of the act. It states in part, ''an award made for loss of earnings or support shall, unless reduced under other provisions of this chapter, be in an amount equal to the actual loss sustained.'' If the victim utilizes another source to compensate his time off from work, there would be no actual loss that OVS could reimburse.
To clarify § 411.43(e)(3), OVS replaced ''bereavement pay'' with ''employer-paid-leave,'' which is a more accurate term when describing sources of leave available from an employer.
Comment: Lancaster County Victim/Witness Services expressed concern with § 411.43(a), specifically, the rationale to include any language concerning the average weekly wage when there seems to be no correlation between stolen benefit cash and the average weekly wage. Since this provision is already limited by a 1 month entitlement, regardless of the amount of the loss, it should not further be limited by the average weekly wage.
Response: This section has been reviewed and deleted as a provision for further limiting the amount a crime victim may be eligible to receive when the victim is on a fixed income. A determination has been made that the reference to the average weekly wage, as determined annually by the Department of Labor and Industry through its Unemployment Compensation Law (73 P. S. §§ 751--914), is clearly referencing income or wages earned by active employment for all persons covered by this act. This reference should not be applied to victims who are on a fixed income.
§ 411.44 (relating to loss of support)
Section 411.44(k) has been amended to correct a typographical error. The proposed rule making referenced a 3- year or 5-year payment plan for the disbursement of loss support payments. The final rulemaking states a 3-year to 5-year payment plan.
§ 411.51 (relating to subrogation)
Section 411.51(c) has been amended to charge OVS with the discretion of removing the sole responsibility from the Director.
In addition, in reviewing the areas of discretion afforded, OVS inadvertently omitted a long-standing practice wherein, in certain circumstances, it is fiscally prudent to compromise a lien amount. There are circumstances where victims suffer major traumatic injuries and their expenses far exceed the amount that can be reimbursed by the Program; when their expenses will continue into the future and exceed the amount of the civil settlement; and when an attorney will decline to pursue civil remedies on behalf of a claimant unless OVS is able to reduce its lien amount. An attorney may decline to pursue a civil remedy because the settlement amount offered would not sufficiently cover the attorney fees, OVS awards, or future expenses incurred by the victim. It is important for OVS to have discretion to negotiate a settlement that is acceptable to all parties involved.
§ 411.53 (relating to prohibitions)
Under § 411.53(a), OVS inadvertently omitted the term ''claimant.'' The subsection should read: ''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, claimant or intervenor.''
Comment: IRRC has noted that there are several sections in the proposed rulemaking that provide discretion to allow OVS to consider other circumstances deemed appropriate or other factors that OVS deems relevant. What other circumstances or factors will OVS consider?
Response: The act is clear in its intent to allow for discretion. Where the act implies this discretion, OVS attempted to articulate the exceptions for why a claimant may not be able to meet a specific requirement.
For example: Section 411.11(f) requires that the direct victim or intervenor report the crime to proper authorities within a prescribed time period. This section also provides that OVS may consider a delay to be justified when one of the following circumstances exist: 1) the direct victim, intervenor or the claimant is mentally or physically incapacitated; 2) the victim is a minor; 3) there is a fear of retaliation; 4) the occurrence of the crime is not readily apparent; or 5) other circumstances where good cause is shown by the claimant.
These exceptions represent 98% of the reasons why a direct victim or intervenor may not have reported within the prescribed time frame. However, OVS didn't want to write it in a manner that would disallow an otherwise eligible victim to be provided compensation. Discretion is required for unusual circumstances which may include: a direct victim whose child was hospitalized for an unrelated event and needed constant attention or a language barrier that may exist with a tourist or possibly a crime victim who is on a visa and is detained and unable to meet the reporting requirement. Since victimization and the circumstances surrounding the crime are unique to each crime victim, OVS requires this discretion to ensure that fairness and equity are part of the decision process in easing the financial hardship imposed upon them.
Final Proposed Rulemaking
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 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 OVS 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.
Fiscal Impact and Paperwork Estimates
The final-form 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.
The fiscal impact to the Commission from all reimbursement rates set by the OVS under Act 85 will consist of an estimated annual net savings of $664,888. 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 or increased benefits ($788,164).
The final-form rulemaking does not affect existing reporting, recordkeeping or other paperwork requirements.
Effective Date
The final rulemaking will become effective upon publication in the Pennsylvania Bulletin.
Sunset Date
No sunset date has been assigned.
Contact Person
The official responsible for information on the final form rulemaking is Lynn Shiner, Manager of the Victims Compensation Assistance Program, Office of Victims' Services, PCCD, P. O. Box 1167, Harrisburg, PA 17108, (717) 783-0551, Ext. 3210.
Regulatory Review
On August 26, 2004, copies of the proposed rulemaking were delivered to IRRC and the Majority and Minority Chairpersons of the House and Senate Judiciary Committees. Notice of the proposed rulemaking was published at 34 Pa.B. 5032 (September 11, 2004) It provided for a 30- day public comment period. In compliance with section 5(c) of the Regulatory Review Act (71 P. S. § 745.5(c)), OVS provided IRRC and the Committees with copies of all comments received during the public comment period, as well as other documents if requested. In preparing the final-form rulemaking, OVS considered all comments received from IRRC, the House Judiciary Committee and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. 745.5a(j.2)), this final-form rulemaking was deemed approved by the House and Senate Judiciary Committees on November 15, 2006. Under section 5.1a(e) of the Regulatory Review Act, IRRC approved the final-form rulemaking on November 16, 2006. The Attorney General approved the final form Rulemaking on December 4, 2006.
Findings
The Commission finds that:
(1) Public notice of the intention to adopt these regulations has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered and forwarded to IRRC and the Senate and House Committees.
(3) The adoption of this final-form rulemaking in the manner provided by this order is necessary and appropriate for administration and enforcement of the authorizing statute.
Order
The Commission, acting under the authorizing statutes, orders that:
(a) The regulations of the Commission, 37 Pa. Code Chapter 411 are amended, by deleting §§ 191.1--191.15 and adding §§ 411.1--411.3, 411.11--411.18, 411.31--411.33, 411.41--411.44 and 411.51--411.53 to read as set forth in Annex A.
(b) The Commission shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as required by law.
(c) The Commission shall submit this order, Annex A and a Regulatory Analysis Form to IRRC and the House and the Senate Committees for their review and action as required by law.
(d) The Commission shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
MICHAEL J. KANE,
Executive Director(Editor's Note: For the text of the order of the Regulatory Review Commission relating to this document see 36 Pa.B. 7353 (December 2, 2006).)
Fiscal Note: 35-29. (1) Crime Victims Reimbursements restricted revenue account within the General Fund; (2) Implementing Year 2006-07 is $1,446,000; (3) 1st Succeeding Year 2007-08 is $1,590,000; 2nd Succeeding Year 2008-09 is $1,590,000; 3rd Succeeding Year 2009-10 is $1,590,000; 4th Succeeding Year 2010-11 is $1,590,000; 5th Succeeding Year 2011-12 is $1,590,000; (4) 2005-06 Program--$12,464,000; 2004-05 Program--$9,711,000; 2003-04 Program--$10,030,000; (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] §§ 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 provided, 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 Articles I and II of the Unemployment Compensation Law (43 P. S. §§ 751--771) in this Commonwealth as determined periodically by the Department of Labor and Industry.
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) Under 18 years of age, including an unborn child for the purposes of this chapter only as defined by 18 Pa.C.S. § 3203 (relating to definitions).
(ii) Eighteen years of age or older but under 23 years of age and currently attending secondary school or is a full-time student in a postsecondary educational institution.
(iii) Eighteen 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.
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 part of the ''found'' money.
Primary source of income--Fifty percent or more 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.
(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.
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