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.
The term shall not include a service provider.
VICTIM - Means a person who
suffers personal injury or death as a result of criminally injurious conduct
committed within the state of Arkansas. The term further includes any Arkansas
resident who suffers personal injury as the result of criminally injurious
conduct which occurs in states presently not having crime victims reparations
programs for which the victim is eligible and any Arkansas resident who is
injured or killed by an act of terrorism committed outside of the United States
as defined in §
2331, Title 18, United States
Code.
The term "victim" shall include a person who:
(A) is an immediate family member of a
deceased victim, a victim of sexual assault, or a child victim;
(B) is not an unmediate family member, but
resided, at the time of the crime, in the same permanent household as a
deceased victim;
(C) discovered the
body of a victim who dies as the result of criminally injurious conduct.
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.
IMMEDIATE FAMILY - Means a
person's spouse, children, parents or guardian, siblings, and grandparents
whether related by blood, adoption, or marriage.
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. This term shall include acts of terrorism committed
outside of the United States as defined in §
2331, Title 18, United States
Code, against any Arkansas resident. This term shall not include acts arising
out of the operation of motor vehicles, boats or aircraft unless the acts
involve any of the following:
(A)
Injury or death intentionally inflicted through the use of a motor vehicle,
boat, or aircraft;
(B) A violation
of the Omnibus DWI Act, A.C.A.§
5-65-101
et. seq;
(C) A violation of A.C.A.
§
27-53-101
(Leaving the scene of an accident involving serious injury or death).
PERSONAL INJURY - Means
actual bodily harm, including pregnancy or mental anguish, which is the direct
result of a violent criminal act.
ECONOMIC LOSS - Means
monetary detriment consisting of allowable expense, and work loss, but shall
not include non-economic detriment.
ALLOWABLE EXPENSE - Means
charge incurred for needed products, services and accommodations, including,
but not limited to, medical care, rehabilitation, rehabilitative occupational
training, crime scene cleanup, and other remedial treatment and care. It also
includes a total charge not in excess of Five Thousand Dollars ($5,000) 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 or claimant would have performed in their regular
course of employment if the victim had not been injured or died, reduced by any
income from substitute work actually performed by the victim or claimant or by
income the victim or claimant 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.
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 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, or a state or any of its political subdivisions,
(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.
CATASTROPHIC - Means
injuries involving a sustained loss of function, including but not limited to
any of the following conditions: mangling, crushing, or amputation of a major
portion of an extremity; traumatic injury to the spinal cord that has caused or
may cause paralysis; severe bums that require bum center care; or serious head
injury, loss of vision, or loss of hearing.
TOTAL AND PERMANENT DISABILITY
- Means an impairment based upon demonstrable medical evidence, which
restricts the victim from performing the usual tasks of a worker to such an
extent that the victim cannot maintain employment.
Rule No. 3
TYPES OF COMPENSATION AVAILABLE
For victims, as defined in A.C.A, §
16-90-703(2),
compensation is available for the following types of expenses:
Economic loss sustained by the victim or a dependent arising from
the criminally injurious conduct of another. Future economic loss is also
compensable but may be reduced or discontinued if the recipient's circumstances
change.
For victims, as defined in A.C.A. §
16-90-703(2)(B),
compensation is available for the following types of expenses:
Mental health expenses incurred as a result of the criminally
injurious conduct of another.
Awards for mental health expenses, for any victim, shall be made
in accordance with guidelines established by a committee of mental health
professionals appointed by the Arkansas Crime Victims Reparations Board.
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 two (2) members of the Board shall be persons admitted to
practice law in this state. At least one (1) member of the board shall be:
(A) A victim of criminally injurious
conduct;
(B) The next of kin of a
Homicide victim; or
(C) An
individual experienced in providing victim assistance services. 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 (1) 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 re-open 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. AH 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 January, March, May, July, September and November - six (6) times each year,
or at the call of the Chairperson, at 9:30am to hear appeal claims.
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 majority of the board shall constitute a
quorum at hearings on appeal claims. The concurrence of two (2) members of the
commission shall be necessary to determine the outcome of a claim. The Board
may act in a panel of three (3) with proxies or consent decrees being
permitted.
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 advanced 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. Administrative staff shall be responsible
for preparation of minutes for each Board meeting.
8. 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 or must
have occurred to a resident of Arkansas in a state without a reparations
program for which the victim is eligible or to a resident of Arkansas who is
injured or killed by an act of terrorism committed outside of the United States
as defined in §
2331, Title 18, United States
Code.
2. The incident must have
occurred on or after July 1, 1988.
3. The incident must have been reported to
the proper authorities 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 act 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
to 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 intervener 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 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 should 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, A.C.A. §
5-65-101
et. seq. or A.C.A. §
27-53-101
(Leaving the scene of an accident involving serious injury or death.)
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. 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 )
13. 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 or
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). However, for those
victims whose injuries are catastrophic and result in a total and permanent
disability, the maximum reparations amount shall not exceed $25,000.
2. Compensation for funeral expenses of
deceased victims may not exceed $5,000.
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.
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.
6. The Board
may also provide for payment of legal fees, not to exceed Two Hundred Fifty
Dollars ($250) - 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 if 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).
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;
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, service
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 vicfim/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, and accompanied with an itemized statement and
police offense report or other official documentation from the agency to which
the incident was reported.
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 crime victim reparations claims up to the
maximum allowable amount of Ten Thousand Dollars ($10,000) or Twenty-five
Thousand Dollars ($25,000) for victims whose injuries are catastrophic and
result in a total and permanent disability.
7. The administrative staff of the Board
shall then make a decision regarding the claim. The claimant/victim shall be
mailed notification of the administrative decision within fifteen (15) calendar
days by mail. If the claim is denied the claimant/victim will be notified by
certified mail, return receipt requested.
8. The claimant shall have the right to
appeal administrative decisions of the staff in the manner set forth in Rule
No. 14, APPEALS PROCEDURE.
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). 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 Reparations 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 (3) 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 claimanVvictim 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 administrative staff
of the Board shall notify the claimant/victim by certified mail, return receipt
requested, within fifteen (15) calendar days setting forth the basis of the
decision.
2. The claimant/victim
shall have the right to appeal and may do so by notifying the administrative
staff of the Board, in writing, by certified mail, return receipt requested, of
the intent to appeal within forty-five (45) calendar days of the date of the
notification letter setting forth administrative staffs decision.
3. The claimant/victim shall then be entitled
to a formal hearing before the Board. The hearing shall be held within ninety
(90) calendar days of the date of the notice from the claimant/ victim stating
the 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.
Notification of Board meetings shall be made in compliance with Arkansas Code
Annotated §
25-19-101 -
25-19-107
- the Arkansas Freedom of Information Act.
6. All agendas and supporting documentation
necessary shall be mailed to the Board ten (10) calendar days in advance of the
Board meeting.
7. The Board may,
without a hearing, settle a claim by stipulation, agreed settlement, consent
order or default.
8. 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.
9. The claimant/victim, if
not successful in the appeal to the Board shall then have thirty (30) 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 ail 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 OF 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.
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 OF 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/iegal 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 only if submitted on Arkansas Crime Victims Reparations
Board Sexual Assault Reimbursement Forms which must include:
1. Victim's 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 number
7. Brief description of examination,
treatment and tests
8. Signed
verification from the physician
9.
Signed verification from law enforcement or victim witness coordinator or
verified victim advocate
10. 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
fiill 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 on 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. However, for
those victims whose injuries are catastrophic and result in a total and
permanent disability, the total reimbursement shall not exceed $25,000.
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 fill 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 Thirty-five Hundred Dollars ($3500) for out-patient
services provided the services are conducted by a licensed mental health
professional who has a signed contract on file with the Board. Additionally,
the Board may pay a maximum of Thirty-five Hundred Dollars ($3500) for mpatient
or other intensive services that are provided by a licensed mental health care
facility. The term mental health professional shall be limited to
psychiatrists, psychologists, psychological examiners, professional counselors
(LPC), certified social workers (LCSW), masters level social workers (LMSW)
under the supervision of a LCSW, associate counselors (LAC) under the
supervision of a LPC, or mrriage and family therapists (LMFT).
Fees for specified mental health services, based on the current
usual and customary rate, shall be set by the board and reviewed
annually.
The following documentation must be submitted before payment of
mental health expenses can be considered:
a. A treatment plan stating 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.
b. Progress notes for each session the victim
was billed.
c. An itemized
statement.
2. The victim
or claimant may submit a request for a waiver of the $3500 maximum if further
services are required. The maximum may be waived only upon justification of
special need based on the following documentation:
a. A detailed statement and new treatment
plan submitted by the provider justifying the continued need for treatment and
its continued relationship to the crime.
3. The Board 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 within 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 supplemental
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.
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 (6)
months after the board notifies the victim/claimant, the application will be
closed and the victim notified of their right to appeal.
