Current through Register Vol. 49, No. 2, February 2024
Rule No. 1
TITLE AND OPERATIVE DATE OF THE ACT
The title of the Act under which these rules and regulations are
being promulgated is known as the Arkansas Crime Victims Reparations Act,
hereinafter referred to as the Act.
The operative date of the Act is July 1, 1988.
Rule No. 2
DEFINITIONS
BOARD - Means the Arkansas Crime Victims
Reparations Board, hereinafter referred to as the Board.
CLAIMANT - Means any of the following
persons applying for reparations under this act:
a. a victim,
b. a dependent of a victim who has died
because of criminally injurious conduct, or
c. a person authorized to act on behalf of
any of the persons listed above.
VICTIM - Means a person who suffers
bodily injury or death as a result of criminally injurious conduct occurring
within the State of Arkansas.
DEPENDENT - Means a natural person
wholly or partially dependent upon the victim for care or support, and includes
a child of a victim born after the death of the victim where the death occurred
as a result of criminally injurious conduct.
CRIMINALLY INJURIOUS CONDUCT - Means an
act which occurs or is attempted in this state that results in personal injury
or death to a victim which is punishable by fine, imprisonment or death. Such
term shall not include acts arising out of the operation of motor vehicles,
boats or aircraft unless the acts were committed with the intent to inflict
injury or death or unless the acts committed were in violation of the Omnibus
DWI Act, specifically Act 549 of 1983, as amended. A person shall be deemed to
have committed criminally injurious conduct not withstanding that by reason of
age, insanity, drunkenness, or other reason he was legally incapable of
committing a crime.
ECONOMIC LOSS - Means monetary detriment
consisting only of allowable expense, work loss, replacement services loss and,
if injury causes death, economic loss and replacement services loss of a
dependent, but shall not include non-economic loss.
ECONOMIC LOSS OF A DEPENDENT - Means
loss after death of the victim of contributions of things of economic value to
the dependent, not including services which would have been received from the
victim if he or she had not suffered the fatal injury, less expenses of the
dependent avoided by reason of death of the victim.
ALLOWABLE EXPENSE - Means charges
incurred for needed products, services and accommodations, including, but not
limited to, medical care, rehabilitation, rehabilitative occupational training
and other remedial treatment and care. It also includes a total charge not in
excess of Two thousand and Five Hundred Dollars ($2,500) for expenses related
to funeral, cremation or burial. Such term shall also include the cost of legal
services for the establishment of guardianship for minor children as per Rule
18 of the Arkansas Crime Victim
Reparation Board Rules and Regulations.
WORK LOSS - Means loss of income from
work, the victim would have performed in their regular course of employment if
such person had not been injured or died, reduced by any income from substitute
work actually performed by the victim or by income the victim would have earned
in available appropriate substitute work that he or she was capable of
performing but unreasonably failed to undertake. Individuals filing claims must
provide clear and convincing evidence of employment.
REPLACEMENT SERVICES LOSS - Expenses
reasonably Incurred in obtaining ordinary and necessary services in lieu of
those the victim would have performed, not for income, but for the benefit of
self or family, if the victim had not been injured or died.
REPLACEMENT SERVICES LOSS OF A
DEPENDENT- Means the loss reasonably Incurred by dependents after
death Of the victim in obtaining ordinary and necessary services in lieu of
those the deceased victim would have performed for their benefit had the
deceased victim not suffered the fatal injury, less expenses of the dependent
avoided by reason of death of the victim and not subtracted in calculating the
economic loss of the dependent.
NON-ECONOMIC DETRIMENT - Means pain,
suffering, inconvenience, physical impairment and non-pecuniary damage.
COLLATERAL SOURCE - Means a source of
benefits or advantages for economic loss For which the claimant would otherwise
be eligible to receive compensation under this Act which the claimant has
received, or which is readily available to the claimant including but not
limited to any one or more of the following:
(a) the offender,
(b) the government of the United States or
any agency thereof, in the form of benefits, such as social security , medicare
and medicaid, a state or any of its political subdivisions or an
instrumentality of two or more states, unless the law providing for the
benefits or advantages makes them in excess of or secondary to benefits under
this Act,
(c) state-required
temporary non-occupational disability insurance,
(d) workers' compensation,
(e) wage continuation programs of any
employer,
(f) proceeds of a
contract of insurance payable to the claimant for loss which the victim
sustained because of the criminally injurious conduct, or
(g) a contract providing prepaid hospital and
other health care service or benefits for disability,
Rule No. 3
TYPES OF CCMPENSATION AVAILABLE
Compensation is available for economic loss sustained by a victim
or dependent arising from criminally injurious conduct of another including
those which occurred as a result of violation of the Omnibus DWI Act, Act 549
of 1983. Economic loss would include: allowable expenses, work loss and
replacement services loss and, if injury causes death, economic loss and
replacement services loss of a dependent, Future economic loss is also
compensable but may be reduced or discontinued if recipient's circumstances
change. (Examples of allowable expenses may include but are not limited to the
following: rehabilitation, rehabilitative occupational training, medical,
psychiatric, and dental expenses, etc.)
Rule No. 4
MEMBERSHIP AND OFFICERS OF THE BOARD
The Board shall consist of five (5) members appointed by the
Governor to serve four (4) year terms and until the successor is appointed and
qualified. At least three (3) members of the Board shall be persons admitted to
practice law in this state. Of the first members appointed, two (2) shall be
appointed for a term of two (2) years, two (2) shall be appointed for a term of
three (3) years, and one shall be appointed for a term of four (4) years.
Vacancies shall be filled in the same manner,
Rule No. 5
PURPOSE OF THE BOARD
The purpose of the Board shall be to hear and decide all matters
relating to Crime Victims Reparations applications. The Board shall have the
authority to award compensation to victims of crime for economic loss arising
from criminally injurious conduct if satisfied by a preponderance of the
evidence that the requirements for compensation have been met.
Rule No. 6
POWERS AND DUTIES OF THE BOARD
The Board shall have the power:
1. To hear and determine all matters relating
to applications filed with the Arkansas Crime Victims Reparations Board for
compensation, including the power to reinvestigate or reopen claims without
regard to statutes of limitations.
2. The Board, or the Administrator, on behalf
of the Board, may subpoena witnesses, compel their attendance, enter orders,
require the production of records and other evidence, administer oaths or
affirmations, conduct hearings and receive relevant evidence. The Board shall
be considered in continuous session for the purposes stated above.
3. To regulate its own procedures except as
otherwise provided in the Act.
4.
To adopt rules and regulations to implement the provisions of the
Act.
5. To define any term not
defined in the Act.
6. To prescribe
forms necessary to carry out the purposes of the Act.
7. To request access to any reports of
investigations or other data necessary to assist the Board in making a
determination of eligibility for compensation.
8. To publicize the availability of
compensation and information regarding the filing of claims
therefore.
9. To order the claimant
to submit to a mental or physical examination or order the autopsy of a
deceased victim if the results would be material to a claim.
10. To require the claimant to supply any
additional medical or psychological reports available relating to the injury or
death for which compensation is claimed.
11. To deny, withdraw or reduce an award of
compensation upon finding that the claimant did not fully cooperate with the
appropriate law enforcement agencies,
12. To reconsider a decision granting or
denying a compensation award, based on its own motion or on request of the
claimant,
13. To suspend the
application for compensation proceedings pending disposition of a criminal
prosecution that has been commenced or is imminent, but the Board may make a
tentative award,
14. To join in a
civil action as a part plaintiff to recover the compensation awarded if the
claimant brings such action.
15.
The Board shall be provided such office, supplies, staff and secretarial
services as necessary by the Office of the Attorney General.
16. All necessary and reasonable expenses of
the Board shall be paid for from the Crime Victims Reparation^ Revolving
Fund,
17. The Board shall have the
duty of preparing and transmitting an annual report to the Governor.
Rule No. 7
MEETINGS OF THE BOARD
1.
The Board shall meet on the third Thursday of each month for ten months each
year, or at the call of the Chairperson, at 9:50 a.m.
2. The Chairperson shall serve as presiding
officer at all official meetings of the Board, In the absence of the Chair
person, the remaining Board members present at the meeting may designate a
president officer for that meeting.
3. The Chairperson shall have the authority
to vote on all matters coming before the Board.
4. A quorum shall consist of three (3)
members.
5. In the event of a tie
vote the matter or matters shall be continued to the next meeting.
6. The order of business at any meeting of
the Board shall follow the agenda prepared in advance of the meeting. Such
other matters may be brought before the Board as shall be requested by any
member in writing and presented to the Chairperson.
7. Proxies to vote shall not be permitted at
the Board meetings.
8.
Administrative staff shall be responsible for preparation of minutes for each
Board meeting.
9. Roberts Rules of
Order, Revised, shall govern all meetings of this Board.
Rule No. 8
ELIGIBILITY CRITERIA FOR CCMPENSATION
1. The criminally injurious conduct leading
to the filing of the reparations claim must have occurred in
Arkansas.
2. The incident must have
occurred on or after July 1, 1988.
3. The incident must have been reported to
law enforcement officials within 72 hours or would have been reported within
the period of time except for good cause.
4. The application for compensation must be
filed within one (1) year of the incident, unless the Board finds good cause
for failure to file a timely claim.
5. The victim must have suffered personal
injury or death as a result of the criminal action of another.
6. The claimant and/or victim must to the
extent able, have cooperated with law enforcement officials during their
investigation.
7. The net amount of
compensation requested in the application must not have been paid by another
source.
8. The claimant and/or
victim was not the offender or an accomplice of the offender.
9. The injury or death must not have been the
result of negligent maintenance or use of a motor vehicle unless the acts are
committed with the intent to inflict injury or death or unless the acts
committed were in violation of the Omnibus DWI Act, Act 549 of 1983.
10. Compensation may be diminished to the
extent or the degree of responsibility for the cause of the injury or death
attributable to the victim, as determined by the Board.
Rule No. 9
CLAIMS INVOLVING DOMESTIC VIOLENCE AND CHILD
ABUSE
1. No portion of a
compensation award shall unjustly benefit . the offender or accomplice however,
no award shall be denied solely on the presence of the offender in the
household at the time of the award.
2. The Board shall consider the following
factors as they relate to the wellbeing of the victim when awarding claims
involving domestic violence/child abuse:
(a)
the offender's potential access to cash payments to determine what portion of
the payment will be used for the benefit of the offender.
(b) the degree to which the offender is being
held accountable for the crime, either through the criminal justice system or
therapeutic measures.
(c) the
victim's willingness to cooperate with law enforcement and the Arkansas Crime
Victims Reparations Board in assuring proper use of cash awards.
3. Collateral resources available
to the victim from the offender shall be considered when awarding a claim,
however the victim shall not be penalized for the failure of an offender to
meet legal obligations to pay for the costs of the victim's recovery.
4. payments to third-party providers shall be
made to prevent cash intended for the victim's bills to be used by or on behalf
of the offender.
5. The Board shall
not penalize child victims by denying or delaying payment when
offender/collateral resources are not forthcoming.
Rule No. 10
MAXIMUM COMPENSATION AMOUNTS AND METHODS OF PAYMENTS
1. Compensation payable to a victim or
claimant sustaining economic loss due to injury or death may not exceed a total
of Ten Thousand Dollars ($10,000.00).
2. Compensation for funeral expenses of
deceased victims may not exceed $2500.
a.
Collateral sources of income such as burial policies, workers' compensation,
etc. will be applied towards the total cost of the victim's funeral.
b. Life insurance may not be used as a
collateral source when dependents of the deceased victim remain and may benefit
from the proceeds of this policy.
c. Life insurance will be utilized as a
collateral source and be applied against funeral expenses in those cases
involving no surviving dependents.
3. Compensation for work loss, replacement
services loss, dependents economic loss and dependent's replacement services"
loss may not exceed Two Hundred Dollars ($200.00) per week.
4. The Board may provide for the payment to a
claimant in a lump sum or in installments.
5. The Board shall pay all or part of an
award directly to service providers unless evidence of prior payment for
services is submitted with the claim,
6. The Board may also provide for payment of
legal fees, not to exceed two-hundred fifty dollars ($250.00) - plus filing
fees, of a guardianship when an award has been made to a minor child as per
Rule 18 of the Arkansas Crime Victims
Reparations Board Rules and Regulations. Legal services expense shall not be
deducted from the otherwise compensable amount.
7. Upon request of the claimant, the Board
may convert future economic loss, other than allowable expense, to a lump sum,
but only upon a finding by the Board of either of the following:
a. That the award in a lump sum will promote
the interests of the claimant;
b.
That the present value of all future economic loss does not exceed One Thousand
Dollars ($1,000.00).
8.
An award payable in installments for future economic loss may be made only for
a period that the Board can reasonably determine future economic loss and may
be modified by the Board upon finding that a significant change in
circumstances has occurred,
9.
Approved claims will be paid in the order of their approval by the Board as
funds become available.
Rule No.
11
GARNISHMENT AND ASSIGNMENT OF AWARD
1. An award shall not be subject to
execution, attachment, garnishment or other process, except that an award for
allowable expense shall not be exempt from a claim of a creditor to the extent
such creditor has provided products, services or accommodations, the costs of
which are included in the award.
2.
An assignment by the claimant to any future award is unenforceable, except:
a. For work, loss to assure payment of
court-ordered alimony, maintenance or child support; or
b. For allowable expense to the extent that
the benefits are for the cost of products, services or accommodations
necessitated by the injury or death.
Rule No. 12
APPLICATION REVIEW PROCEDURE
1. A victim, dependent of a victim, or person
legally acting in behalf of the victim, must first secure a copy of the
official Victims Reparations. Application Form from their local prosecuting
attorney's office, sheriff's office, or from the Board. In the event assistance
is needed by the applicant in completing the form such assistance will be
provided by the Victim-Witness Coordinator, by the prosecuting attorney's staff
in districts that have no Victim-Witness Coordinator, or by the staff of the
Board in Little Rock.
2. A form
must be completed, appropriate documentation attached, signed and received by
the Board within one (1) year of the incident unless the Board finds good cause
for failure to file a timely claim.
3. The staff of the Board shall log the
application as being received and begin a thorough review and verification
process,
4. The Board and staff
have the authority to conduct investigations and/or request any additional
information from the victim, the investigating law enforcement agency, medical
personnel and/or facilities, witnesses, employers and others as may be deemed
necessary for the proper review and verification of the application.
5. The staff shall make a thorough analysis
of the application and attachments, then prepare staff comments relative to the
application which shall be filed in the application folder and be provided to
the Board as supportive data along with the agenda when the application is to
be considered by the Board.
6. Once
the application has been cleared (staff review and comments completed), the
application will be placed, on the next appropriate Board agenda for
consideration. An application must be cleared at least fifteen (15) calendar
days prior to a Board meeting for consideration at that meeting. Those
applications not cleared fifteen (15) calendar days prior to a regular meeting
shall be considered at the Board meeting the following month, unless it is
determined during staff review the applicant will suffer undue financial
hardship during this period. In this event, an advance award may be considered.
The advance award will be deducted from the final amount or shall . be repaid
by and recoverable from the applicant to the extent it exceeds the final
award.
7. All agendas and
supporting documentation necessary shall be mailed to the Board ten (10)
calendar days in advance of the Board meeting.
8. Notification of Board meetings shall be
made in compliance with the Open Meeting Law. Copies of the meeting agendas
giving date, location and time of meetings shall be posted in conspicuous
places on the premises of the building wherein the Board meetings will be
held.
9. Applicants whose
compensation applications are to be considered by the Board will be mailed
notification of the meeting fourteen (14) calendar days in advance and will
have the opportunity to appear and be heard and to offer evidence and argument
on any issue relevant to the claim. Claimants may also examine witnesses and
offer evidence in reply to any matter of an evidentiary nature in the record
relevant to the claim.
10. The
Board shall consider the applications for compensation on the agenda and render
their decision. The applicants shall be mailed notification of the Board
decision within fifteen (15) calendar days of the Board meeting wherein the
application was considered.
Rule No.
13
ADVANCE (EMERGENCY) AWARD OF COMPENSATION
The Board may make or authorize the Administrator to make an
advance (emergency) award of compensation to the applicant prior to taking
action on an application and pending a final decision when it appears the claim
is one for which compensation is probable and undue hardship will result to the
applicant if immediate payment is not made. The applicant may request in the
application that consideration be given for an advance award and provide
justification for such award. A decision denying emergency relief shall not be
appealable.
The amount of such advance (emergency) award shall not exceed
Five Hundred Dollars ($500.00). Any advance award shall be deducted from the
final compensation made to the applicant. If the final award amount is less
than the amount of the advance award, the applicant must repay the excess to
the Board.
Rule No. 14
APPEALS PROCEDURE
1. In
the event an application for compensation is approved in a modified form or
denied, the Administrator of the Board shall notify the claimant by certified
mail, return receipt requested, within fifteen (15) calendar days of the
Board's action, setting forth the basis of the Board's decision,
2. The claimant shall have the right to
appeal and may do so by notifying the Administrator of the Board, in writing,
by certified mail, return receipt requested, of the intent to appeal within
thirty (30) calendar days of the date of the notification letter setting forth
the Board's decision,
3. The
claimant shall then be entitled to a formal hearing before the Board, The
hearing shall be held within sixty (60) calendar days of the date of the notice
from the claimant stating intent to appeal,
4. In an appeals hearing, all parties shall
be afforded an opportunity to appear and be heard. A record of the proceedings
shall be made and shall be transcribed upon request of any party, who shall pay
transcription costs unless otherwise ordered by the Board.
5. The Board may, without a hearing, settle a
claim by stipulation, agreed settlement, consent order or default.
6, The Board shall render its decision relative to the appeal
within ten (10) calendar days of the formal hearing and the applicant will be
notified by mail.
Rule No.
15
SUBROGATION RIGHTS OF THE BOARD
Upon an award of compensation by the Board for personal injury or
death, the Board shall be subrogated to the cause of action of the applicant
against any third person responsible for such injury or death, and shall be
entitled to bring action against such person for the amount of damages
sustained by the applicant. If the amount recovered and collected in the action
is greater than the amount awarded by the Board to the applicant, the Board
shall pay the balance to the applicant.
Rule No. 16
PENALTY FOR FALSE CLAIMS
The filing of a false claim for compensation pursuant to the
Arkansas Crime Victims Reparations Act shall constitute a Class D
Felony.
Rule No. 17
BOARD STAFF
The Administrator of the Board shall be the Chief Executive
Officer of the Board staff. He/she shall be hired by the Attorney General with
the advice and consent of the Board, He/she shall be responsible for the
administration of the rules, regulations, policies and procedures promulgated
by the Board, pursuant to the Administrative Procedure Act, and within such
restraints as mandated by statute,
The Administrator shall also be responsible for employment-,
supervision, evaluation and termination of Board employees and shall delegate
appropriate powers and duties to them, subject to the advice and/or consent of
the Attorney General and the Board.
Rule
No. 18
CLAIMS OF INCOMPETENTS OR MINOR CHILDREN
Proof of the establishment of the guardianship may be required by
the Board prior to release of funds to the claimant. A certified copy of the
Order of Guardianship shall be sufficient proof.
Rule No. 19
AMENDMENT TO RULES AND REGULATIONS
Any modification or amendment to the Rules and Regulations of the
Board shall be made pursuant to the procedure as outlined in the Arkansas
Administrative Procedure Act.
