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 regulation are
being promulgated is known as the Arkansas crime Victims Reparations Act,
hereinafter referred to as the Act.
The operative date of the Act is July 1, 1988.
Rule No. 2 DEFINITIONS
BOARD - Means the Arkansas Crime Victims
Reparations Board, hereinafter referred to as the Board.
CLAIMANT - Means any of the following
persons applying for reparations under this act:
a. a victim,
b. a dependent of a victim who has died
because of criminally injurious conduct, or
c. a person authorized to act on behalf of
any of the persons listed above.
VICTIM - Means a person who suffers
bodily injury or death as a result of criminally injurious conduct occurring
within the State of Arkansas.
DEPENDENT - Means a natural person
wholly or partially dependent upon the victim for care or support, and includes
a child of a victim born after the death of the victim where the death occurred
as a result of criminally injurious conduct.
CRIMINALLY INJURIOUS CONDUCT - Means an
act which occurs or is attempted in this state that results in personal injury
or death to a victim which is punishable by fine, imprisonment or death. Such
term shall not include acts arising out of the operation of motor vehicles,
boats or aircraft unless the acts were committed with the intent to inflict
injury or death or unless the acts committed were in violation of the Omnibus
DWI Act, specifically Act 549 of 1983, as amended. A person shall be deemed to
have committed criminally injurious conduct not withstanding that by reason of
age, insanity, drunkenness, or other reason he was legally incapable of
committing a crime.
ECONOMIC LOSS - Means monetary detriment
consisting only of allowable expense, work loss, replacement services loss and,
if injury causes death, replacement services loss of a dependent, but shall not
include non-economic loss.
ECONOMIC LOSS OF A DEPENDENT -
Definition totally deleted.
ALLOWABLE EXPENSE - Means charges
incurred for needed products, services and accommodations, including, but not
limited to, medical care, rehabilitation, rehabilitative occupational training
and other remedial treatment and care. It also includes a total charge not in
excess of Two Thousand Five Hundred Dollars ($2,500) for expenses related to
funeral, cremation or burial. Such term shall also include the cost of legal
services for the establishment of guardianship for minor children as per Rule
18 of the Arkansas Crime Victims
Reparations Board Rules and Regulations.
WORK LOSS - Means loss of income from
work the victim would have performed in their regular course of employment if
such person had not been injured or died, reduced by any income from substitute
work actually performed by the victim or by income the victim would have earned
in available appropriate substitute work that he or she was capable of
performing but unreasonably failed to undertake. Individuals filing claims must
provide clear and convincing evidence of employment including but not limited
to pay stubs, tax returns or certified documentation from employer.
REPLACEMENT SERVICES LOSS - Expenses
reasonably incurred in obtaining ordinary and necessary services in lieu of
those the victim would have performed, not for income, but for the benefit of
self or family, if the victim had not been injured or died. Replacement
services may be considered for payment for a maximum of six (6) months. All
replacement services must be reasonable and comparable to similar
services.
Replacement services may consist of such services as day care
services if the victim formerly cared for the children and is no longer able to
do so because of the victimization, home care services to provide health care
or homemaker services when the victim is not able to perform these tasks
without assistance, replacement or repair of eyeglasses, dentures, contact
lenses, prosthetic devices, and transportation.
REPLACEMENT SERVICES LOSS OF A DEPENDENT
- Means the loss reasonably incurred by dependents after death of the victim in
obtaining ordinary and necessary services in lieu of those the deceased victim
would have performed for their benefit had the deceased victim not suffered the
fatal injury, less expenses of the dependent avoided by reason of death of the
victim and not subtracted in calculating the economic loss of the
dependent.
NON-ECONOMIC DETRIMENT - Means pain,
suffering, inconvenience, physical impairment and non-pecuniary damage.
COLLATERAL SOURCE - Means a source of
benefits or advantages for economic loss for which the claimant would otherwise
be eligible to receive compensation under this Act which the claimant has
received, or which is readily available to the claimant including but not
limited to any one or more of the following:
(a) the offender,
(b) the government of the United States or
any agency thereof, in the form of benefits, such as social security, medicare
and medicaid, a state or any of its political subdivisions or an
instrumentality of two or more states, unless the law providing for the
benefits or advantages makes them in excess of or secondary to benefits under
this Act,
(c) state required
temporary non-occupational disability insurance.
(d) workers' compensation,
(e) wage continuation programs of any
employer,
(f) proceeds of a
contract of insurance payable to the claimant for loss which the victim
sustained because of the criminally injurious conduct, or
(g) a contract providing prepaid hospital and
other health care service or benefits for disability.
Rule No. 3 TYPES OF COMPENSATION
AVAILABLE
Compensation is available for economic loss sustained by a victim
or dependent arising from criminally injurious conduct of another including
those which occurred as a result of violation of the Omnibus DWI Act, Act 549
of 1983. Economic loss would include: allowable expenses, work loss and
replacement services loss and, if injury causes death, replacement services of
a dependent. Future economic loss is also compensable but may be reduced or
discontinued if recipient's circumstances change. (Examples of allowable
expenses may include but are not limited to the following: rehabilitation,
rehabilitative occupational training, medical, psychiatric, and dental
expenses, etc.
Rule No. 4
MEMBERSHIP AND OFFICERS OF THE BOARD
The Board shall consist of five (5) members appointed by the
Governor to serve four (4) year terms and until the successor is appointed and
qualified. At least three (3) members of the Board shall be persons admitted to
practice law in this state. Of the first members appointed, two (2) shall be
appointed for a term of two (2) years, two (2) shall be appointed for a term of
three (3) years, and one shall be appointed for a term of four (4) years.
Vacancies shall be filled in the same manner.
Rule No. 5
PURPOSE OF THE BOARD
The purpose of the Board shall be to hear and decide all matters
relating to Crime Victims Reparations applications. The Board shall have the
authority to award compensation to victims of crime for economic loss arising
from criminally injurious conduct if satisfied by a preponderance of the
evidence that the requirements for compensation have been met.
Rule No. 6
POWERS AND DUTIES OF THE BOARD
The Board shall have the power:
1. To hear and determine all matters relating
to applications filed with the Arkansas Crime Victims Reparations Board for
compensation, including the power to re-investigate or reopen claims without
regard to the statutes of limitations.
2. The Board, or the Administrator, on behalf
of the Board, may subpoena witnesses, compel their attendance, enter orders,
require the production of records and other evidence, administer oaths or
affirmations, conduct hearings and receive relevant evidence. The Board shall
be considered in continuous session for the purposes stated above.
3. To regulate its own procedures except as
otherwise provided in the Act.
4.
To adopt rules and regulations to implement the provisions of the
Act.
5. To define any term not
defined in the Act.
6. To prescribe
forms necessary to carry out the purposes of the Act.
7. To request access to any reports of
investigations or other data necessary to assist the Board in making a
determination of eligibility for compensation.
8. To publicize the availability of
compensation and information regarding the filing of claims
therefore.
9. To order the claimant
to submit to a mental or physical examination or order the autopsy of a
deceased victim if the results would be material to a claim.
10. To require the claimant to supply any
additional medical or psychological reports available relating to the injury or
death for which compensation is claimed.
11. To deny, withdraw or reduce an award of
compensation upon finding that the claimant did not fully cooperate with the
appropriate law enforcement agencies.
12. To reconsider a decision granting or
denying a compensation award, based on its own motion or on request of the
claimant.
13. To suspend the
application for compensation proceedings pending disposition of a criminal
prosecution that has been commenced or is imminent, but the Board may make a
tentative award.
14. To join in a
civil action as a part plaintiff to recover the compensation awarded if the
claimant brings such action.
15.
The Board shall be provided such office, supplies, staff and secretarial
services as necessary by the Office of the Attorney General.
16. All necessary and reasonable expenses of
the Board shall be paid for from the Crime Victims Reparations Revolving
Fund.
17. The Board shall have the
duty of preparing and transmitting an annual report to the Governor.
Rule No. 7
MEETINGS OF THE BOARD
1.
The Board shall meet on the third Thursday of each month for nine (9) months
each year, or at the call of the Chairperson, at 9:30 a.m.
2. The Chairperson shall serve as presiding
officer at all official meetings of the Board. In the absence of the
Chairperson, the remaining Board members present at the meeting may designate a
president officer for that meeting.
3. The Chairperson shall have the authority
to vote on all matters coming before the Board.
4. A quorum shall consist of three (3)
members.
5. In the event of a tie
vote the matter or matters shall be continued to the next meeting.
6. The order of business at any meeting of
the Board shall follow the agenda prepared in advance of the meeting. Such
other matters may be brought before the Board as shall be requested by any
member in writing and presented to the Chairperson.
7. Proxies to vote shall not be permitted at
the Board meetings.
8.
Administrative staff shall be responsible for preparation of minutes for each
Board meeting.
9. Roberts Rules of
Order, Revised, shall govern all meetings of this Board.
Rule No. 8
ELIGIBILITY CRITERIA FOR COMPENSATION
1. The criminally injurious conduct leading
to the filing of the reparations claim must have occurred in
Arkansas.
2. The incident must have
occurred on or after July l, 1988.
3. The incident must have been reported to
law enforcement officials within 72 hours or would have been reported within
the period of time except for good cause.
(A)
Good cause shall include, but not be limited to:
(1) the physical incapacity of a
victim
(2) the mental incompetence
of a victim
(3) the age of the
victim
(4) the injury was not
reasonably discoverable
4. The application for compensation must be
filed within one (1) year of the incident, unless the Board finds good cause
for failure to file a timely claim.
(A) Good
cause shall include, but not be limited to:
(1) the physical incapacity of a
victim
(2) the mental incompetence
of a victim
(3) the age of the
victim
(4) the injury was not
reasonably discoverable
(5)
restitution or other collateral source was regularly-being paid and then
terminated
(6) postal service
delays which are verifiable
5. The victim must have suffered personal
injury or death as a result of the criminal action of another.
6. The claimant and/or victim must to the
extent able, have cooperated with law enforcement officials during their
investigation.
The following issues may be considered when determining
cooperation:
1. Failure to cooperate
in the prosecution of the defendant or to appear as a witness.
2. Not cooperating initially but later
deciding to cooperate and the delay allows the defendant to escape
prosecution.
3. Not cooperating
initially but later deciding to cooperate without any good cause as to the
delay.
4. Causing extra or
unnecessary effort on the part of law enforcement to gain
prosecution.
5. Reluctantly
providing information pertaining to the crime; failing to appear when
requested, without good cause; giving false or misleading information; or
attempting to avoid law enforcement.
6. Failing to prosecute or cooperate with law
enforcement because of fear for his/her personal safety.
7. Failing to give testimony or otherwise
cooperate with the prosecutor's office.
8. Failing to cooperate with Arkansas Crime
Victims Reparations Board administrative staff by not returning requested
information, not returning telephone calls, not providing accurate information,
etc.
7. The net amount of
compensation requested in the application must not have been paid by another
source.
8. The claimant and/or
victim was not the offender or an accomplice of the offender. Claimant/victim
may be denied if he/she has been engaged in an illegal activity during his/her
victimization.
Illegal activity may consist of any of the following but is not
limited to:
(a). victim was buying
drugs;
(b). victim was using
drugs;
(c). victim was a minor and
drinking alcohol
(d). victim was in
an illegal place of business, such as a crackhouse, house of prostitution, or
gambling establishment.
If claimant/victim contributed or was offender - compensation
shall not be awarded to a claimant/victim who was the offender or an accomplice
of the offender or who encouraged or in any way-participated in the criminally
injurious conduct. Compensation may be diminished to the extent or the degree
of responsibility for the cause of the injury or death attributable to the
victim, as determined by the Board.
In determining the amount of an award, the Arkansas Crime Victims
Reparations Board shall determine whether, because of his conduct, the victim
of such crime or the intervenor contributed to the infliction of his injury or
to his death, and the Board shall reduce the amount of the award or reject the
claim altogether, in accordance with such determination.
Contribution is determined by the action portrayed by the victim
at the time of or immediately preceding the crime. While there is no set
formula for calculating the percentage of contribution to be assessed, the
following factors should serve as a guideline:
(1) If it appears that the victim was
provoked by the defendant in a manner threatening bodily harm to the victim,
and the victim acted in self defense, no contribution should be
assessed.
(2) If it appears that
the victim was provoked by the defendant in a manner where bodily harm to the
victim appeared unlikely, and the victim used poor judgment because of
intoxication or other drug involvement, a 25% contribution factor should be
assessed.
(3) If it appears that
the defendant was provoked by the victim in a manner where bodily harm appeared
unlikely, a 50% contribution factor should be assessed.
(4) If the victim is injured as a result of
his conduct not being that of a prudent person, a 50% contribution factor
should also be assessed.
(5) If it
appears that the defendant was provoked by the victim in a manner where bodily
harm to the defendant appears intentional, a 75% contribution factor should be
assessed.
(6) If it appears that
the defendant was provoked by the victim in a manner where bodily harm to the
defendant is unquestionable, a 100% contribution factor shall be assessed and
the claim denied.
(7) If the victim
is not wearing protective equipment as prescribed by law, a 25% contribution
factor shall be assessed. This includes helmets, seat belts, etc.
(8) If the victim was involved in drugs as
verified by the police report or other official documents, a 100% contribution
factor should be assessed and the claim denied.
9. The injury or death must not have been the
result of negligent maintenance or use of a motor vehicle unless the acts are
committed with the intent to inflict injury or death or unless the acts
committed were in violation of the Omnibus DWI Act, Act 549 of 1983.
10. Claimant/victim has not been convicted of
a felony involving criminally injurious conduct.
11. Awards shall not be made to a victim who
is injured or killed while confined in state, county, or municipal jail, prison
or other correctional facility as a result of conviction of any
crime.
12. In those cases where the
victim has died, the claimant will be considered to have no compensable loss
for the expenses incurred by the victim as a result of the criminally injurious
conduct if the claimant has no legal obligation to pay for these
expenses.
Rule No. 9
CLAIMS INVOLVING DOMESTIC VIOLENCE AND CHILD ABUSE
1. No portion of a compensation award shall
unjustly benefit the offender or accomplice however, no award shall be denied
solely on the presence of the offender in the household at the time of the
award.
2. The Board shall consider
the following factors as they relate to the well being of the victim when
awarding claims involving domestic violence/child abuse:
(a) the offender's potential access to cash
payments to determine what portion of the payment will be used for the benefit
of the offender,
(b) the degree to
which the offender is being held accountable for the crime, either through the
criminal justice system or therapeutic measures,
(c) the victim's willingness to cooperate
with law enforcement and the Arkansas Crime Victims Reparations Board in
assuring proper use of cash awards.
3. Collateral resources available to the
victim from the offender shall be considered when awarding a claim, however the
victim shall not be penalized for the failure of an offender to meet legal
obligations to pay for the costs of the victim's recovery.
4. Payments to third-party providers shall be
made to prevent cash intended for the victim's bills to be used by or on behalf
of the offender.
5. The Board shall
not penalize child victims by denying or delaying payment when
offender/collateral resources are not forthcoming.
Rule No. 10
MAXIMUM COMPENSATION AMOUNTS AND METHODS OF PAYMENTS
1. Compensation payable to a victim or
claimant incurring expenses due to injury or death may not exceed a total of
Ten Thousand Dollars ($10,000.00).
2. Compensation for funeral expenses of
deceased victims may not exceed $2,500.
a.
Collateral sources of income such as burial policies, workers' compensation,
etc. will be applied towards the total cost of the victim's funeral.
b. Life insurance may not be used as a
collateral source when dependents of the deceased victim remain and may benefit
from the proceeds of this policy.
c. Life insurance will be utilized as a
collateral source and be applied against funeral expenses in those cases
involving no surviving dependents.
3. Compensation for work loss, replacement
services loss, and dependent's replacement services loss may not exceed Two
Hundred Dollars ($200.00) per week.
4. The Board may provide for the payment to a
claimant in a lump sum or in installments.
5. The Board shall pay all or part of an
award directly to service providers unless evidence of prior payment for
services is submitted with the claim.
6. The Board may also provide for payment of
legal fees, not to exceed two-hundred fifty dollars ($250.00) - plus filing
fees, of a guardianship when an award has been made to a minor child as per
Rule 18 of the Arkansas Crime Victims
Reparations Board Rules and Regulations. Legal services expense shall not be
deducted from the otherwise compensable amount unless amount is over
$10,000.
7. Upon request of the
claimant, the Board may convert future economic loss, other than allowable
expense, to a lump sum, but only upon a finding by the Board of either of the
following:
a. That the award in a lump sum
will promote the interests of the claimant;
b. That the present value of all future
economic loss does not exceed One Thousand Dollars
($1,000.00).
8. An award
payable in installments for future economic loss may be made only for a period
that the Board can reasonably determine future economic loss and may be
modified by the Board upon finding that a significant change in circumstances
has occurred.
9. Approved claims
will be paid in the order of their approval by the Board as funds become
available.
Rule No. 11
GARNISHMENT AND ASSIGNMENT OF AWARD
1. An award shall not be subject to
execution, attachment, garnishment or other process, except that an award for
allowable expense shall not be exempt from a claim of a creditor to the extent
such creditor has provided products, services or accommodations, the costs of
which are included in the award.
2.
An assignment by the claimant to any future award is unenforceable, except:
a. For work loss to assure payment of
court-ordered alimony, maintenance or child support; or
b. For allowable expense to the extent that
the benefits are for the cost of products, services or accommodations
necessitated by the injury or death.
Rule No. 12
APPLICATION REVIEW PROCEDURE
1. A victim, dependent of a victim, or person
legally acting in behalf of the victim, must first secure a copy of the
official Victims Reparations Application Form from their local prosecuting
attorney's office, law enforcement agency, victim/witness coordinator, medical
provider or from the Board. Assistance in completing the form may be provided
by the victim-witness coordinator or the prosecuting attorney's staff in
districts that have no victim-witness coordinator. The Crime Victims
Reparations Board staff will also be available to assist in the completion of
the form.
2. A form must be
completed in its entirety, appropriate itemized documentation and police
offense report attached, signed and received by the Board within one (1) year
of the incident unless the Board finds good cause for failure to file a timely
claim.
(A) Good cause shall include, but not
be limited to:
(1) the physical incapacity of
a victim
(2) the mental
incompetence of a victim
(3) the
age of the victim
(4) the injury
was not reasonably discoverable
(5)
restitution or other collateral source was regularly being paid and then
terminated
(6) postal service
delays which are verifiable
3. The staff of the board shall log the
application as being received and begin a thorough review and verification
process.
4. The Board and staff
have the authority to conduct investigations and/or request any additional
information from the victim, the investigating law enforcement agency, medical
personnel and/or facilities, witnesses, employers and others as may be deemed
necessary for the proper review and verification of the application.
5. The staff shall make a thorough analysis
of the application and attachments, then prepare staff comments relative to the
application which shall be filed in the application folder along with
supportive data that is pertinent to the investigation.
6. The administrative staff shall have the
authority to review and decide the following claims:
(a) Claims for compensation of $2,500 or
less,
(b) Claims for funeral
expenses of $2,500 or less
7. Claims that the administrative staff has
reason to believe should be denied for the following reasons:
(A) The claim is not filed with the Board
within one year after the injury or death upon which the claim is based, unless
"good cause" for not having done so can be established.
(1) Good cause shall include, but not be
limited to:
(a) the physical incapacity of a
victim
(b) the mental incompetence
of a victim
(c) the age of the
victim
(d) the injury was not
reasonably discoverable
(e)
restitution or other collateral source was regularly being paid and then
terminated
(f) postal service
delays which are verifiable
(B) The claimant/victim was an offender or an
accomplice of the offender. Claimant/victim shall not have been engaged in an
illegal activity during his/her victimization.
(C) The award would unjustly benefit the
offender or accomplice except as permitted by Rule
9 of the Arkansas Crime Victims
Reparations Rules and Regulations. {See Rule
9 )
(D) To a victim who is injured or killed
while confined in a state, county, or municipal jail, prison, or other
correctional facility as a result of conviction of any crime.
(E) To a victim or claimant who has been
convicted of a felony involving criminally injurious conduct;
(F) If the crime which resulted in criminally
injurious conduct or death was not reported to a law enforcement officer within
seventy-two hours after its occurrence.
(G) The claim does not fulfill criteria
established for compensation in Rule No. 8 of the Arkansas Crime Victims
Reparations Rules and Regulations of the Board.
If claimant/victim contributed or was offender - compensation
shall not be awarded to a claimant/victim who was the offender or an accomplice
of the offender or who encouraged or in any way participated in the criminally
injurious conduct. Compensation may be diminished to the extent or the degree
of responsibility for the cause of the injury or death attributable to the
victim, as determined by the Board.
In determining the amount of an award, the administrative staff
shall determine whether, because of his conduct, the victim of such crime or
the intervenor contributed to the infliction of his injury or to his death, and
the Board shall reduce the amount of the award or reject the claim altogether,
in accordance with such determination.
Contribution is determined by the action portrayed by the victim
at the time of or immediately preceding the crime. While there is no set
formula for calculating the percentage of contribution to be assessed, the
following factors should serve as a guideline:
(1) If it appears that the victim was
provoked by the defendant in a manner threatening bodily harm to the victim,
and the victim acted in self defense, no contribution should be
assessed.
(2) If it appears that
the victim was provoked by the defendant in a manner where bodily harm to the
victim appeared unlikely, and the victim used poor judgment because of
intoxication or other drug involvement, a 25% contribution factor should be
assessed.
(3) If it appears that
the defendant was provoked by the victim in a manner where bodily harm appeared
unlikely, a 50% contribution factor should be assessed.
(4) If the victim is injured as a result of
his conduct not being that of a prudent person, a 50% contribution factor
should also be assessed.
(5) If it
appears that the defendant was provoked by the victim in a manner where bodily
harm to the defendant appears intentional, a 75% contribution factor should be
assessed.
(6) If it appears that
the defendant was provoked by the victim in a manner where bodily harm to the
defendant is unquestionable, a 100% contribution factor shall be assessed and
the claim denied.
(7) If the victim
is not wearing protective equipment as prescribed by law, a 25% contribution
factor shall be assessed. This includes helmets, seat belts, etc.
(8) If the victim was involved in drugs as
verified by the police report or other official documents, a 100% contribution
factor should be assessed and the claim denied.
8. The Administrator of the Board shall then
make a decision regarding the claim. The claimant/victim shall be mailed
notification of the administrative decision within fourteen (14) calendar days
by mail. If claim is denied the claimant/victim will be notified by certified
mail, return receipt requested.
9.
The claimant shall have the right to appeal administrative decisions of the
Board in the manner set forth in Rule No. 14, APPEALS PROCEDURE.
10. In an appeals hearing, all parties shall
be afforded an opportunity to appear and be heard.
11. Applications that do not fall under the
guidelines of administrative staff decisions shall be presented to the Board.
Once the application has been cleared {staff review and comments completed),
the application will be placed on the next appropriate Board agenda for
consideration. An application must be cleared at least ten (10) calendar days
prior to a Board meeting for consideration at that meeting. Those applications
not cleared at least ten (10) calendar days prior to a regular meeting shall be
considered at the Board meeting the following month, unless it is determined
during staff review the applicant will suffer undue financial hardship during
this period.
12. All agendas and
supporting documentation necessary shall be mailed to the Board ten (10)
calendar days in advance of the Board meeting.
13. Notification of Board meetings shall be
made in compliance with the Arkansas Code Annotated
25-19-101 -
25-19-107
- the Arkansas Freedom of Information Act.
14. The Board shall consider the applications
for compensation on the agenda and render their decision. The applicants shall
be mailed notification of the Board decision within fifteen (15) calendar days
of the Board meeting wherein the application was considered.
Rule No. 13
ADVANCE (EMERGENCY) AWARD OF COMPENSATION
The Board may make or authorize the Administrator to make an
advance (emergency) award of compensation to the claimant/victim prior to
taking action on an application and pending a final decision when it appears
the claim is one for which compensation is probable and undue hardship will
result to the claimant/victim if immediate payment is not made. The
claimant/victim may request in the application that consideration be given for
an advance award and provide justification for such award. A decision denying
emergency relief shall not be appealable.
The amount of such advance (emergency) award shall not exceed
Five Hundred dollars ($500.00). Any advance award shall be deducted from the
final compensation made to the claimant/victim. If the final award amount is
less than the amount of the advance award, the claimant/victim must repay the
excess to the Board. If an emergency award is made and the claimant/victim
later does not follow through with prosecution or some other requirement of
this program, the claimant/victim will be required to reimburse the Board for
the amount of the award made.
Criteria for payment of emergency awards is listed below:
a. Claimant/victim is without an income at
the time of application resulting in loss of food, heat or shelter.
b. Claimant/victim can not receive emergency
service (i.e. burial) without the emergency payment.
Documentation required:
a. Proof of financial emergency should be
obtained for the file such as notice of eviction from the landlord or a
shut-off notice from the power company.
b. If no proof is available, then the
investigator should note in file why he/she thinks the application is
considered an emergency.
c. There
must be contact with the investigating law enforcement officer to verify what
occurred, the victim's innocence and the victim's cooperation. A law
enforcement offense report and Crime Victims Reparation Board Law Enforcement
Form must be included in the file.
d. For wage loss claims, the employer may be
contacted by telephone but the written verification must follow to go in the
file. If self-employed applicant must provide a copy of his/her last three (3)
years tax return or check stubs for the last three months as proof of his/her
income. If proof is not available, lost wages can not be considered.
e. If the injury is not commensurate with the
time lost from work, a doctor's excuse will be required.
f. Claimant/victim is required to sign a
promissory (demand) note which must be signed and executed by the
claimant/victim with the Administrator prior to receiving the emergency
award.
Rule No. 14
APPEALS PROCEDURE
1. In
the event an application for compensation is approved in a modified form or
denied, the Administrator of the Board shall notify the claimant/victim by
certified mail, return receipt requested, within fifteen (15) calendar days of
the Board's or administrative staff's action, setting forth the basis of the
decision.
2. The claimant/victim
shall have the right to appeal and may do so by notifying the Administrator of
the Board, in writing, by certified mail, return receipt requested, of the
intent to appeal within thirty(30) calendar days of the date of the
notification letter setting forth the Board's or administrative staff's
decision.
3. The claimant/victim
shall then be entitled to a formal hearing before the Board. The hearing shall
be held within sixty (60) calendar days of the date of the notice from the
claimant/victim stating intent to appeal.
4. The claimant/victim or an authorized
representative in the event the claimant/victim is incapacitated must be
present at the appeal hearing. In an appeals hearing, all parties shall be
afforded an opportunity to appear and be heard. A record of the proceedings
shall be made and shall be transcribed upon request of any party, who shall pay
transcription costs unless otherwise ordered by the Board.
5. The Board may, without a hearing, settle a
claim by stipulation, agreed settlement, consent order or default.
6. The Board shall render its decision
relative to the appeal within ten (10) calendar days of the formal hearing and
the claimant/victim will be notified by mail.
7. The claimant/victim, if not successful in
the appeal to the Board shall then have (30) thirty days from the receipt of
the decision to file a petition for judicial review pursuant to Arkansas Code
Annotated
25-15-212
in the circuit court of his/her county of residence or in Pulaski
County.
Rule No. 15
SUBROGATION RIGHTS OF THE BOARD
1. Upon an
award of compensation by the Board for personal injury or death, the Board
shall be subrogated to recover from a collateral source to the extent
reparations were awarded.
2. Should
the claimant/victim file a cause of action against any third person responsible
for such injury or death, and be entitled to recover the amount of damages
sustained by the claimant/victim then the amount recovered and collected in the
action is subrogated to the Board for the amount of reparations
awarded.
3. In the event a
defendant is convicted of a crime and ordered to pay restitution, the office of
the Attorney General may seek to recover any or all of the restitution paid.
Any excess amount recovered over the reparation amount awarded and paid shall
be paid to the claimant/victim.
Rule
No. 16
PENALTY FOR FALSE CLAIMS
The filing of a false claim for compensation pursuant to the
Arkansas Crime Victims Reparations Act shall constitute a Class D Felony. If a
victim or a claimant knowingly files a false claim or provides false
information or fails to provide material facts or circumstances necessary to
substantiate the claim, he/she may not at a later date, file a correct claim.
If this happens, the claim shall be denied.
Rule No. 17
BOARD STAFF
The Administrator of the Board shall be the Chief Executive
Officer of the Board staff. He/she shall be hired by the Attorney General with
the advice and consent of the Board. He/she shall be responsible for the
administration of the rules, regulations, policies and procedures promulgated
by the Board, pursuant to the Administrative Procedure Act, and within such
restraints as mandated by statute.
The Administrator shall also be responsible for employment,
supervision, evaluation and termination of Board employees and shall delegate
appropriate powers and duties to them, subject to the advice and/or consent of
the Attorney General and the Board.
Rule
No. 18
CLAIMS OF INCOMPETENTS OR MINOR CHILDREN
Proof of the establishment of the guardianship may be required by
the Board prior to release of funds to the claimant. A certified copy of the
Order of Guardianship shall be sufficient proof.
Rule No. 19
AMENDMENT TO RULES AND REGDXATIONS
Any modification or amendment to the Rules and Regulations of the
Board shall be made pursuant to the procedure as outlined in the Arkansas
Administrative Procedure Act.
Rule No.
20
ELIGIBILITY REQUIREMENTS AND APPLICATION REVIEW PROCEDURE FOR
MEDICAL/LEGAL SEXUAL ASSAULT EVIDENCE COLLECTION EXAMINATIONS
DEFINITIONS
"Victim" means any person who has been a victim of any sexual
assault or incest.
"Appropriate emergency medical-legal examinations" means health
care delivered to out-patients with emphasis on the collection of evidence for
the purpose of prosecution and shall include, but not be limited to:
1. appropriate stains and cultures to
determine the presence or absence of venereal disease
2. components contained in an evidence
collection kit for sexual assault examinations deemed appropriate by the
Serology Division of the State Crime Laboratory
3. evidence collection shall not include
treatment of emotional trauma or ambulance services "Medical facility" means
any health care provider that is currently licensed by the Department of Health
and providing emergency services, and all publicly owned or tax-supported
medical facilities in Arkansas.
PROCEDURES GOVERNING MEDICAL TREATMENT ADULT VICTIMS
1. All medical facilities in Arkansas shall
adhere to the procedures set forth below in the event that a person presents
himself or is presented at the medical facility for treatment as a victim of
rape, attempted rape, any other type of sexual assault, or incest.
2. Any adult victim presented for medical
treatment shall make the decision of whether or not the incident will be
reported to a law enforcement agency.
a. No
medical facility may require an adult victim to report the incident in order to
receive medical treatment
b. The
victim shall be examined and treated as a regular emergency room patient, and
any injuries requiring medical attention will be treated in the standard
manner.
c. Evidence will be
collected only with the permission of the victim. However, permission shall not
be required in instances where the victim is unconscious, mentally incapable of
consent or intoxicated.
3. Should an adult victim wish to report the
incident to a law enforcement agency, the appropriate law enforcement agencies
shall be contacted by the medical facility.
a. The victim shall be examined and treated
as a regular emergency room patient, any injuries requiring medical attention
will be treated in the standard manner and a medical-legal examination shall be
conducted and specimens shall be collected for evidence.
b. The evidence shall be turned over to the
law enforcement officers when they arrive to assume responsibility for
investigation of the incident.
4. The victim shall not be transferred to
another medical facility unless:
a. The
victim requests to be transferred or
b. A physician or other qualified medical
personnel when a physician is not available has signed a certification that the
benefits to the patient's health would outweigh the risks to the patient's
health as a result of the transfer and
c. The transferring hospital provides all
necessary medical records and insures that appropriate transportation is
available.
PROCEDURES GOVERNING MEDICAL TREATMENT VICTIMS UNDER THE AGE OP
EIGHTEEN (18)
1. All medical
facilities in Arkansas shall adhere to the procedures set forth below in the
event that a person presents himself/herself or is presented at the medical
facility for treatment as a victim of rape, attempted rape, any other type of
sexual assault, or incest.
2. The
reporting medical facility shall report the injuries of the victim under
eighteen (18) years of age immediately by telephone and shall then follow up
with a written report within forty-eight (48) hours if so requested by the
receiving agency. The receiving agency shall immediately prepare and forward a
written report to the statewide central registry within twenty-four (24) hours.
The Department of Human Services shall notify and initiate an investigation in
cooperation with law enforcement agencies and the prosecuting attorney.
a. Any victim under the age of eighteen (18)
years of age shall be examined and treated as a regular emergency room patient
and any injury requiring medical attention will be treated in the standard
manner.
b. A medical-legal
examination shall be performed and specimens shall be collected for
evidence.
c. The evidence shall be
turned over to the law enforcement officers when they arrive to assume
responsibility for investigation of the incident.
d. Reimbursement for the medical-legal
examinations shall be available to the medical facilities.
e. The victim shall not be transferred to
another medical facility unless:
aa. The
victim requests to be transferred or
bb. A physician or other qualified medical
personnel when a physician is not available has signed a certification that the
benefits to the patient's health would outweigh the risks to the patient's
health as a result of the transfer and
cc. The transferring hospital provides all
necessary medical records and insures that appropriate transportation is
available.
EXAMINATIONS AND TREATMENT - PAYMENTS
UNIVERSITY OF ARKANSAS MEDICAL SCIENCE CAMPUS
1. All University of Arkansas Medical
Sciences Campus shall provide prompt, appropriate emergency medical-legal
examinations for sexual assault victims.
2. All victims seeking treatment shall be
exempted from the payment of expenses incurred as a result of the treatment
provided the following conditions are met:
a.
The assault must be reported to a law enforcement agency and
b. The victim must seek treatment within
forty-eight (48) hours of the attack.
c. In the event the victim is a minor, the
forty-eight (48) hour time limitation may be waived, if, in the opinion of the
examining physician, evidence of sexual activity could be found.
REIMBURSEMENT OF ALL MEDICAL FACILITIES
1. The Arkansas Crime Victims Reparations
Board may reimburse any medical facility for reasonable cost of emergency
medical examinations for sexual assault victims. The Board may mandate cost
ceilings for claims and determine reasonable cost.
2. Medical facilities must be currently
licensed by the Department of Health and providing emergency
services.
3. All publicly owned or
tax-supported medical facilities in Arkansas shall adhere to the following
procedures in the event that a person presents himself/herself or is presented
at the medical facility for treatment as a victim of rape, attempted rape, any
other type of sexual assault or incest:
a. Any
adult victim presented for medical treatment shall make the decision of whether
or not the incident will be reported to a law enforcement agency.
b. No medical facility may require an adult
victim to report the incident in order to receive medical treatment.
4. The victim must seek treatment
within forty-eight (48) hours of the attack.
a. In the event the victim is a minor, the
forty-eight (48) hour time limitation may be waived, if, in the opinion of the
examining physician, evidence of sexual activity could be found.
5. The victim shall not be
transferred to another medical facility unless:
a. The victim requests to be transferred
or
b. A physician or other
qualified medical personnel when a physician is not available has signed a
certification that the benefits to the patient's health would outweigh the
risks to the patient's health as a result of the transfer and
c. The transferring hospital provides all
necessary medical records and insures that appropriate transportation is
available.
6. Medical
facilities are responsible for fulfillment of the following procedures since
reimbursement is made directly to them:
a.
Claims will be paid o
nly, if submitted on Arkansas
Crime Victims Reparation Board Sexual Assault Reimbursement Forms which must
include:
1. Victims name, date of birth and
address
2. Date and time of
incident
3. Date and time of
treatment by medical facility
4.
Name and address of law enforcement agency notified
5. Name and address of medical
facility
6. Medical facility
contact person and telephone
7.
number
8. Brief description of
examination, treatment and tests
9.
Signed verification from the physician
10. Signed verification from law enforcement
or victim witness coordinator or verified victim advocate
11. All itemized copies of medical bills
complete with current procedural terminology (CPT) codes.
7. The medical facility must send
the reimbursement form with the attached itemized bills to the Arkansas Crime
Victims Reparations Board.
8. The
Board shall make payments for the following sexual assault -medical-legal
examination services:
a. Physician's fee
History
Physical,
Collection of specimens
Treatment for the prevention of venereal disease
b. Emergency department
Emergency room, clinic room or office room fee
Pelvic tray
c.
Laboratory
Wet mount for sperm
Fixed smear for sperm (pap)
Blood test for VDRL
Blood testing for syphilis and Hepatitis B
HIV test
Cultures for gonorrhea, chlamydia, trichomonas and other sexually
transmitted disease (STD)
d.
Pregnancy testing (blood test or urinalysis if indicated)
e. Other laboratory test that are required
for the purpose of evidentiary examination
f. Medications
Prophylaxis
One dose sedative, antidepressant or tranquilizer
9. The Administrator of
the Arkansas Crime Victims Reparations Board will then approve the
reimbursement for reasonable and customary costs related to the collection of
evidence and immediate emergency medical treatment (medical - legal
examination). The payment of the said fees will be based on past practices and
costs (average of fiscal year 1991, 1992 and 1993); however excessive fees
which are denied may be appealed by the medical provider in writing to the
Arkansas Crime Victims Reparations Board. An annual review of said fees will be
conducted by the Administrator of the Arkansas Crime Victims Reparations
Board.
10. Acceptance of payment
for services paid by the Arkansas Crime Victims Reparations Board shall be
considered payment in full and bars any legal action for collection. The
provider of medical services to whom the award is made will be notified that by
accepting the approved payment, they are agreeing not to commence civil actions
against the victim or his/her legal representative to recover any balance due
under the bill.
11. The victim is
not responsible for the payment of the cost of the medical -legal examination.
A medical facility shall not submit any remaining balance after reimbursement
by this Board to the victim.
12.
Victims may be eligible for crime victim compensation through the Crime Victims
Reparations Board for medical care that was not part of the sexual assault
-medical - legal examination. Medical care may include: x-rays, stitches,
hospitalization, pain medication and counseling that may be needed as a direct
result of the sexual assault victimization. A crime victim compensation form
must be completed for compensation to be reimbursed for medical care. The form
must be accompanied by a police offense report and medical bills.
Rule No. 21
COST CEILING ON MEDICAL BILLS
In connection with claims for payment of medical bills, not
covered by insurance, made by victims, the Board will award up to 75% of
medical bills, not to exceed a total reimbursement of $10,000.
The provider of medical services to whom the award is made will
be notified that by accepting the payment of 75% of their bill, they are
agreeing not to commence civil actions against the victim or his legal
representative to recover the balance due under the bill.
Acceptance of payment for services paid by the Arkansas Crime
Victims Reparations Board shall be considered payment in full and bars any
legal action for collection.
Rule No.
22
COST CEILING ON MENTAL HEALTH BILLS
1. In connection with claims for payment of
mental health services, not covered by insurance, incurred by victims, the
Board will pay a maximum of twenty-five hundred dollars ($2500) or provide
services for six (6) months, whichever occurs first, provided that a treatment
plan is submitted within thirty (30) days of the application to the Board for
those victims receiving ongoing therapy or within thirty (30) days of beginning
therapy for those victims who seek mental health treatment after making
application to the Board. This treatment plan must state the basis for the
necessity of such treatment, the anticipated extent of the treatment, and the
relationship of the treatment to the crime perpetrated upon the victim and
whether or not the diagnosis is related to a pre-existing condition.
2. A mandatory review by the Board is
required after ninety (90) or twenty-five hundred dollars ($2500), whichever
occurs first, should the victim or the provider find that further services are
required.
a. The provider will be required to
submit a new treatment plan to justify the continued need for the treatment and
its continued relationship to the crime.
b. The Board may waive the maximum upon a
justification of special need based upon documentation to be submitted by the
provider.
c. The Board also
reserves the right to have any mental health claims and treatment plans
reviewed by an independent peer review committee should it so desire.
Rule No. 23
CONFLICT OF INTEREST
No member of the Board shall use such appointment for purposes
which are motivated by private gain, including gain for providers, claimants,
or victims with which the board member is associated with in any capacity.
There shall exist a conflict of interest when a provider, claimant, or victim
with whom the board member is associated with appears before the board in the
course of business of the board.
When such a conflict arises for a member, the individual member
should declare the conflict. Additionally, any member of the Board who
questions whether or not another member has a conflict of interest in the
matter under discussion may ask for a determination by the Board. If the Board
finds that a conflict exists, the affected member shall also follow the
aforementioned procedure.
Any member of the Board who declares a conflict of interest, or
who is found to have a conflict, should neither participate in debate nor vote
on the issue in question.
Rule No.
24
SUPPLEMENTAL AWARDS
If at the time of the application, the victim or claimant was
unable to submit all of the itemized bills, he/she may submit supplement bills
to be considered after the original award. If a victim or claimant has been
awarded their original claim at a reduced amount due to contribution, then the
Board will note at the time of approval whether or not they will consider any
supplemental awards concerning this claim. If the Board determines that
supplemental awards will not be considered after the initial award, the Board
shall so note at the time of the initial award. Each case will be considered on
its own merits.
The total of the original award and any and all supplemental
awards may not exceed $10,000.
Supplemental awards may be paid quarterly.
Supplemental bills must be submitted within ninety (90) days of
the date of treatment to be considered.
The staff administrator may determine compensation for
supplemental awards in the amount not to exceed $1,000.
Rule No. 25
FINANCIAL OBLIGATION REQUIREMENT
Reparations shall not be awarded to any victim/claimant who owes
a financial obligation ordered or imposed as a result of a previous criminal
conviction until the board receives information or materials establishing to
the satisfaction of the board that the financial obligation has been satisfied.
If the board does not receive the information or materials within six months
after the board notifies the victim/claimant, the application will be closed
and the victim notified of their right to appeal.
