Current through Register Vol. 46, No. 12, March 20, 2024
(a) The award
shall be paid in a lump sum, except that in the case of death or protracted
disability the award shall provide for periodic payments to compensate for loss
of earnings or support. No award shall be subject to execution or attachment
other than for expenses resulting from the injury which is the basis for the
claim.
(b) In cases in which the
claimant is a minor or incompetent, the award may be paid to a relative,
guardian, committee, conservator or attorney of such person on behalf of and
for the benefit of such person. In such cases the payee may be required to file
a periodic accounting of the award with the office and take such other action
as the office shall determine is necessary and appropriate for the benefit of
the minor or incompetent.
(c) If
there are two or more persons entitled to an award as a result of the death of
a person which is the direct result of a crime, the office shall apportion the
award among the claimants in the proportion as it finds that the deceased
victim contributed to their support.
(d) In the event of a change of dependency of
the claimant or any of them, either by marriage of a widow or otherwise, the
office may change the proportion and the amount of the payments to the
claimant.
(e) In death cases the
office shall, at least every 12 months, verify the dependency and financial
circumstances of the claimants; and upon finding a change, the office may
reduce or increase the proportion of the allowance and award to the claimants
as the circumstances warrant.
(f)
In protracted disability cases the office shall, at least every 12 months,
verify the disability of the claimant to determine whether he or she is
entitled to continue to receive periodical payments either in the amount
awarded or in a reduced amount.
(g)
Any compensation award made pursuant to Executive Law, article 22, shall be in
an amount not exceeding out-of-pocket expenses, including indebtedness
reasonably incurred for medical or other services necessary as a result of the
injury upon which the claim is based, together with loss of earnings or support
resulting from such injury.
(1) If the injury
causes death, the award shall include funeral, burial plot and marker cost, not
exceeding:
(i) $6,000 for crimes occurring on
and after 11/1/96, claims submitted by any person who incurs such
costs;
(ii) $2,000 for crimes
occurring on and after 6/12/91 until 10/31/96, claims submitted by any person
who incurs such costs;
(iii) $2,500
for crimes occurring on and after 8/1/85 until 6/11/91, claims submitted by any
person who incurs such costs;
(iv)
$1,500 for crimes occurring on and after 7/30/83 until 7/31/85, claims
submitted by any person who incurs such costs;
(v) $1,500 for crimes occurring on and after
6/15/82 until 7/29/83, claims submitted by family members;
(vi) $1,500 for crimes occurring on and after
6/16/68 until 6/14/82, claims submitted by a surviving spouse, parent or
child;
(vii) $1,000 for crimes
occurring on and after 8/1/66 until 6/15/68, claims submitted by a surviving
spouse or child.
(2)
Where a third party, non-claimant pays for a causally-related out-of-pocket
expense on behalf of a claimant and the third party has no contractual
responsibility to the claimant to make such payment, the office shall require
affidavits from both the claimant and the third party stating that the payment
by the third party was meant as a loan to the claimant, as proof for the office
to reimburse the third party.
(3)
In order for the costs associated with new or enhanced security devices, beyond
those which, pursuant to the Executive Law are repaired or replaced under
subdivision 2 of section 631, or are awarded under subdivision 12 of section
631, to be compensable, the office shall require a statement from the
claimant's physician or counselor, or the district attorney handling the
victim's case, indicating that without the aid of such a device the claimant's
health is in imminent danger. Compensable costs shall be limited to the devices
themselves and their installation, and shall not include the periodic service
charges for monitoring or maintaining any such devices.
(4) The office may require proof from
claimants for all claims of crime-related counseling expenses which are filed
more than one year after counseling has begun. The claimants shall offer
evidence to the office that the counseling is causally connected to the crime
and the office may request an independent medical examination of any claimant
before authorizing reimbursement for reasonable expenses of counseling
services.
(5) Court transportation
expenses.
(i) An award shall include
reasonable transportation expenses of the claimant incurred for necessary court
appearances in connection with the prosecution of the crime upon which the
claim is based.
(ii) Except for
calculating the reimbursement rate for mileage traveled in instances where a
claimant has provided his or her own transportation, the standards for the
rates of reimbursement for State employees as promulgated by the Department of
Audit and Control and set forth in 2 NYCRR Part 8, shall be followed in making
a determination as to the reasonableness of the travel expense incurred as well
as the amount of reimbursement. When a claimant has provided his or her own
transportation, the standards for the rates of reimbursement for mileage
traveled shall be calculated as set forth in section
525.3(e)
of this Part. The rates of reimbursement in effect on the date the travel
expense for the necessary court appearance was incurred shall be
controlling.
(iii) Any claimant
eligible to receive an award under article 22 and this Part shall be eligible
for an award for transportation expenses incurred for necessary court
appearances.
(6) Any
award for financial counseling expenses must be related to the crime and shall
not exceed the actual monetary loss or fraudulent charges and/or debt incurred
by the victim. For services provided during a six-month period or longer, the
office shall require evidence on a semiannual basis that such counseling
continues to be necessary as a direct result of the crime.
(7) An award for crime-related counseling
expenses may be made to:
(i) certain family
members, pursuant to paragraph (b) of subdivision 1 of section
624 of the
Executive Law, including spouses, grandparents, parents, stepparents,
guardians, brothers, sisters, stepbrothers, stepsisters, children or
stepchildren of homocide victims, if otherwise eligible and as a result of the
death of such victim;
(ii) certain
family members, pursuant to paragraph (h) of subdivision 1 of section
624 of the
Executive Law, including parents, stepparents, grandparents, guardians,
brothers, sisters, stepbrothers or stepsisters of child victims, if otherwise
eligible and as a result of the victimization of such child victims;
and
(iii) child victims, pursuant
to subdivision 17 of section
631 of the
Executive Law, if otherwise eligible and as a result of having witnessed a
crime.
(h)
Direct reimbursement for services to a sexual assault survivor .
(1) Definitions:
(i) Licensed provider shall mean any New York
State accredited hospital or licensed physician, nurse practitioner, registered
nurse or physician assistant practicing within the State of New York whose
performance of services to a sexual assault survivor is within the scope of
practice of the discipline in which he or she holds a license or any other
sexual assault examiner certified by the Department of Health to conduct such
services .
(ii) Sexual assault shall
mean any sexual offense defined in article 130 of the New York State Penal
Law.
(iii) Services to a sexual
assault survivor shall mean the medical examination and treatment directly
related to a sexual assault, including but not limited to sexual offense
evidence collection.
(iv) Sexual
offense evidence collection shall mean an examination conducted by a licensed
provider as defined in subparagraph (i) of this paragraph for the purpose of
collecting and preserving evidence to document a sexual assault, conducted in
accordance with the sexual offense evidence protocol and standards established
by the Department of Health. Information about these protocols may be obtained
from the Department of Health at the following address and website:
The Bureau of Womn , Infant, and Adolescent Health
NYS Department of Health
Room 821 , Tower Building
Empire State Plaza
Albany, New York 12237-0621
Phone: (518) 474-3664
https://www.health.ny.gov/professionals/safe/
(v) Sexual offense evidence collection kit
shall mean a standard package of materials, instructions and forms for licensed
providers to use in the collection and preservation of evidence from a sexual
assault survivor's body.
(vi) Claim
form shall mean the New York State Office of Victim Services Medical Provider
Sexual Assault Services Direct Reimbursement Claim Form. In addition to being
included in the Sexual Offense Evidence Collection Kit, this form is available
from the Office of Victim Services online at
http://www.ovs.ny.gov.
(vii) Billable codes shall mean standard
medical billing codes that are recognized by the New York State Department of
Health Medicaid program, including but not limited to ICD-10 Diagnosis codes,
Current Procedural Terminology (CPT) codes, Healthcare Common Procedural Coding
System (HCPCS) codes and National Drug Codes (NDC).
(2) Notwithstanding any contrary provisions,
whenever a licensed provider administers services to a sexual assault survivor
, such provider shall render such services without charge and shall bill the
office directly for such services, unless the sexual assault survivor assigns
his or her private insurance benefits for the services , in which case the
office shall not be billed for such services by the provider pursuant to this
subdivision. Except as provided in paragraph (6) of this subdivision, nothing
in this section shall preclude a licensed provider from billing a sexual
assault survivor for medical services unrelated to the medical examination and
treatment directly related to a sexual assault as set forth in subparagraphs
(5)(i), (ii), (iii) and (iv) of this subdivision.
(3) At the time of the initial visit, the
provider shall:
(i) request assignment of any
private health insurance benefits on a form prescribed by the office;
(ii) advise a sexual assault survivor orally
and in writing that he or she may decline to provide private health insurance
information if he or she believes it would substantially interfere with his or
her personal privacy or safety;
(iii) advise a sexual assault survivor that
providing such information may provide additional resources to pay for services
to other sexual assault victims; and
(iv) require that if he or she declines to
provide such health insurance information, he or she shall indicate such
decision on the form prescribed by the office.
(4) Eligibility criteria.
(i) To establish eligibility, a licensed
provider shall submit a completed Claim Form as defined in subparagraph (1)(vi)
of this subdivision and attach an itemized bill indicating the relevant medical
services and proper billable codes associated with each service provided to the
office at the address below:
Office of Victim Services
Alfred E. Smith State Office Building
80 South Swan Street, 2nd Floor
Albany, NY 12210-8002
(ii) Upon receipt of a completed Claim Form
with an itemized bill including proper billable codes and acceptance by the
Office of Victim Services, payment will be authorized directly to the licensed
provider through the appropriate billing facility as set forth in paragraph (8)
of this subdivision.
(5)
The office has determined that reimbursable expenses shall include at a
minimum:
(i) forensic examiner and hospital
or healthcare facility services directly related to the services to a sexual
assault survivor , including integral forensic supplies;
(ii) scope procedures directly related to the
services to a sexual assault survivor, including but not limited to anoscopy
and colposcopy;
(iii) any laboratory
testing directly related to the services to a sexual assault survivor ,
including drug screening, urinalysis, pregnancy screening, syphilis screening,
chlamydia culture, gonorrhea coverage culture, blood test for HIV screening,
hepatitis B and C, herpes culture and any other STD testing directly related to
the services to a sexual assault survivor;
(iv) any pharmaceuticals directly related to
the services to a sexual assault survivor, including STD, pregnancy, hepatitis
prophylaxis and HIV post-exposure prophylaxis provided pursuant to subdivision
13 of section
631 of the
executive law;
(v) Except as
provided in this subdivision, charges for inpatient services, and for services
other than those included in this subdivision are not included in this rate and
shall not be reimbursable under this subdivision, but shall continue to be
reimbursable under established office procedure pursuant to article 22 of the
executive law.
(6) The
victim shall not be responsible for the payment of the cost of any services
specified by the provider in its submission to the office pursuant to this
subdivision. The licensed provider must accept the reimbursement rate as
payment in full for those services submitted to the office pursuant to this
subdivision . The licensed provider shall not submit any remaining balance due
for such services after submission to the office to the victim or commence
civil actions against the victim to recover any balance due for such
services.
(7) The costs for
multiple examinations of the same victim will not be reimbursed. The cost of
only one examination per victim per alleged sexual assault will be considered a
reimbursable cost pursuant to this subdivision. In the event that more than one
visit is necessary to complete one such examination, the facility shall include
all charges related to the complete examination in their application.
(8) For the services to a sexual assault
survivor , the office will reimburse the facility in which the services were
conducted and whose operator's certificate number or facility identification,
if applicable, appears on the Claim Form, pursuant to subdivision 13 of section
631 of the
executive law . The amount reimbursed to the facility shall then, if
applicable, be proportionately allocated among the service providers by the
billing facility. When making application under this subdivision, the billing
facility shall:
(i) Itemize the services
rendered by any licensed provider using proper billable codes, and
(ii) If a sexual offense evidence collection
kit was used, itemize the services rendered using proper billable codes for any
elements which comprise the use of the sexual offense evidence collection kit.
In no event shall reimbursement be considered in excess of the difference
between the maximum rates established by subparagraphs 1 and 2 of paragraph b
of subdivision 13 of section
631 of the
executive law.
(9)
Expenses must be related to services to a sexual assault survivor performed
within 120 hours following the incident. This reporting time shall be waived
for a child victim or for any victim if good cause has been shown.
(i) In no event shall reimbursement be
considered pursuant to subparagraph 2 of paragraph b of subdivision 13 of
section
631 of the
executive law, related to the use of a sexual offense evidence collection kit,
when the sexual assault survivor presents in excess of 120 hours after the
alleged sexual assault.
(10) A claim 's initial submission to the
office for reimbursement of expenses associated with services to a sexual
assault survivor made pursuant to this section must be submitted within one
-hundred eighty days of the date of the examination to the office pursuant to
paragraph 4 of this subdivision.
(i)
(1) The
office may award loss of earnings or support in accordance with this Part,
subdivision 3 of section
631 of the
Executive Law and subject to any applicable maximum award limitations pursuant
to article 22 of the Executive Law, for such amounts that can be verified to
the satisfaction of the office.
(i) Any award
for loss of earnings shall include time which an employee was absent from work
and not paid for the date or time off.
(ii) Except as provided in subparagraph (iii)
of this paragraph, any award for loss of earnings or support shall be limited
to the victim's income which has been reported to an appropriate taxing
authority.
(iii) If during an
investigation of a claim the office determines that such income is not subject
to taxation, the office shall request alternative information to verify such
income.
(2) An award for
loss of earnings by a parent or guardian as a result of the hospitalization of
a child victim under the age of 18 for injuries sustained as a direct result of
a crime, shall further be limited by the following:
(i) the victim's full loss of earnings shall
take priority over any other eligible claim for loss of earnings by a parent or
guardian based on the victim's hospitalization;
(ii) should more than one parent or guardian
be eligible for an award for loss of earnings, the office shall only award the
first eligible claim received, in addition to the victim's claim, per
hospitalization period or portion of such period;
(iii) the total weekly award for an eligible
claimant or claimants shall not exceed $600. See Executive Law section
631 (3);
and
(iv) the total loss of earnings
award for an eligible claimant or claimants shall not exceed $30,000. See
Executive Law section
631
(2).
(3)
(i) Except as provided in subparagraph (ii)
of this paragraph, and pursuant to and in accordance with this Part and
Executive Law article 22 and subject to any applicable maximum award
limitations contained therein, any award for a victim's loss of earnings shall
be limited to a period of disability resulting from crime-related injuries as
established by the medical evidence obtained during the investigation of a
claim.
(ii) If during the
investigation of the claim such period of disability can not be established by
medical evidence, there shall be a rebuttable presumption that such victim has
suffered a period of disability of not longer than seven consecutive days
beginning on the date of the crime. The office may award loss of earnings for
such period, or a portion thereof.
(j) Notwithstanding any contrary provisions
of this Part, claims with respect to a livery operator victim shall be
investigated on an expedited basis and a decision shall be made within 30 days
of the date upon which the claim was accepted for filing.
(1) Each award for loss of earnings pursuant
to this paragraph made with respect to a claim involving a livery operator
assault victim shall be for such period of time as the office determines that
the livery operator assault victim is unable to work and has lost earnings as a
result of such assault, in an amount not to exceed $20,000. Such award shall be
distributed in increments of $500 per week.
(2) Each award for loss of support pursuant
to this paragraph made with respect to a claim involving a livery operator
homicide victim shall be in the amount of $20,000, distributed in increments of
$500 per week.
(k) Any
claimant may submit an additional claim for any loss of earnings or support in
excess of the amount awarded pursuant to this section, or an additional claim
for any other award pursuant to this Part or Executive Law article 22, in each
case pursuant to and in accordance with this Part and Executive Law article 22
and subject to any applicable maximum award limitations contained
therein.
(l) The office is payer of
last resort and as such, the claimant must exhaust all collateral sources
available to them pursuant to subdivision 4 of section
631 of the
Executive Law. All awards made pursuant to Executive Law article 22 and this
Part shall be reduced in the manner prescribed in subdivision 4 of section
631 of the
Executive Law, provided however that any payments received or to be received by
the claimant or victim as the result of a private civil action brought against
the "profits of a crime" or the "funds of a convicted person" pursuant to
section
632-a
of the Executive Law shall not reduce the amount of such awards.
(m) When determining an award, the office
must consider conduct contributing to the crime or criminal injury.
(1) All awards made pursuant to Executive Law
Article 22 and this Part shall be either reduced or denied altogether for
conduct contributing in the following manner:
(i) 100% denial of award. Any conduct on part
of the victim, as indicated by law enforcement in the investigation of the
claim pursuant to subdivision (b) of section
525.5
of this part, constituting felonies or misdemeanors involving violence. For the
purpose of this subparagraph, the term "violence" shall include, but not be
limited to: gang activity, the dealing of illegal drugs, being the initial
aggressor, and the use or brandishing of illegal firearms or other dangerous
instruments at or near the time of the crime.
(ii) 75% reduction of award. Any conduct on
part of the victim, as indicated by law enforcement in the investigation of the
claim pursuant to subdivision (b) of section
525.5
of this part, constituting any other felony not considered in subparagraph (i)
of this paragraph.
(iii) 50%
reduction of award. Any conduct on part of the victim, as indicated by law
enforcement in the investigation of the claim pursuant to subdivision (b) of
section
525.5
of this part, constituting any other misdemeanor not considered in subparagraph
(i) of this paragraph.
(iv) 25
percent reduction of award. All other conduct on part of the victim, not
considered in subparagraph (i), (ii) or (iii) of this paragraph, as indicated
in the investigation of the claim pursuant to subdivision (b) of section
525.5
of this Part.
(2)
Notwithstanding the provisions paragraph (1) of this subdivision, if the crime
upon which the claim is based resulted in the death of the victim, awards made
pursuant to Executive Law article 22 and this Part shall be reduced for conduct
contributing in the following manner:
(i) 50
percent denial of award. Any conduct on part of the victim, as indicated by law
enforcement in the investigation of the claim pursuant to subdivision (b) of
section
525.5
of this Part, constituting felonies or misdemeanors involving violence. For the
purpose of this subparagraph, the term ''violence'' shall include, but not be
limited to: gang activity, the dealing of illegal drugs, being the initial
aggressor, and the use or brandishing of illegal firearms or other dangerous
instruments at or near the time of the crime.
(ii) 25 percent reduction of award. Any
conduct on part of the victim, as indicated by law enforcement in the
investigation of a claim pursuant to subdivision (b) of section
525.5
of this Part, constituting any other felony not considered in subparagraph (i)
of this paragraph.
(iii) Any other
conduct on part of the victim, not considered in subparagraph (i) or (ii) of
this paragraph, as indicated in the investigation of the claim pursuant to
subdivision (b) of section
525.5
of this Part, shall not be considered a reason to reduce an
award.
(3) However, when
considering conduct contributing the office shall examine the following
mitigating factors: the victim was a minor, a victim of human trafficking, a
sex worker, or a victim of sexual assault. If any such mitigating factors are
found in the investigation of the claim pursuant to subdivision (b) of section
525.5
of this part, the office may make an award without reduction for conduct
contributing.
(n)
Pursuant to and in accordance with this Part and Executive Law article 22 and
subject to any applicable maximum award limitations contained therein, any
award for essential personal property related to the victim's welfare shall be
subject to the following limitations:
(1) All
awards related to clothing shall be limited as follows:
(i) Items of outerwear, suits and footwear
shall be the receipted amount, in an amount not exceeding five-hundred dollars
per item.
(ii) All other items of
clothing shall be the receipted amount, in an amount not exceeding one-hundred
dollars per item.
(2) All
awards related to bedding shall be limited as follows:
(i) Mattress and platform or box spring shall
be the receipted amount, in an amount not exceeding two-thousand
dollars.
(ii) All other items of
bedding shall be the receipted amount, in a cumulative amount not exceeding
five-hundred dollars.
(3)
All awards made pursuant to Executive Law article 22 and this Part related to a
victim's ability to communicate shall be limited to the receipted amount, in an
amount not exceeding one-thousand five-hundred dollars per item.
(4) All awards made pursuant to Executive Law
article 22 and this Part related to a victim's safe operation of their personal
means of transportation shall be limited to the receipted amount, in an amount
not exceeding two-thousand five-hundred dollars per item.
(5) Notwithstanding the provisions of
paragraphs (1), (2) or (3) of this subdivision, if the information developed in
the course of the investigation discloses that the victim's domicile was
damaged or destroyed as a result of the crime of arson as defined by article
150 of the Penal Law and the claim is based upon such crime, or that the victim
had to flee their domicile due to the crime upon which the claim is based, and
the Office has not made or cannot make an award for relocation expenses
pursuant to Executive Law article 22, the Office may make an award for related
clothing, bedding and/or ability to communicate, unreceipted, in an amount up
to the applicable maximum award limitations contained in Executive Law article
22.
(6) Notwithstanding the
provisions of paragraphs (1), (2), (3) or (4) of this subdivision, if the
information developed in the course of the investigation discloses that the
claim for essential personal property is related to the victim's health or
safety, such award shall be limited to the receipted amount, subject to the
applicable maximum award limitations contained in Executive Law article
22.