No. 41475 (Amendment): Rule R270-1. Award and Reparation Standards

(Amendment)

DAR File No.: 41475
Filed: 04/13/2017 11:07:02 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of the rule change is to include the agency's purchase of prescription medication in the discount or a similar discount currently applied to all other "non-insured" medical expenses purchased by the agency. The primary reason for the change is to create consistency and reliability in the agency program standards. The change may create a small (estimate $10,000 to $20,000 per year) savings to the agency.

Summary of the rule or change:

The changes to this rule include the addition of the definition of "PEHP", nonsubstantive relettering to accommodate the addition, changing the amount the agency will pay for prescription medications to the amount that would be paid by PEHP, clarifying that medications administered at the time of a sexual assault exam would still be fully covered, and reducing the amount paid for sexual assault exam services to 60%.

Statutory or constitutional authorization for this rule:

• Section 63M-7-5

Anticipated cost or savings to:

the state budget:

The state budget will not experience any impact. The expenditures made by the agency are made from the Crime Victim Reparation Fund, an expendable special revenue fund defined at Section 51-9-404. The agency does not receive a budgeted appropriation for these expenses. There could however be some savings to the Crime Victim Reparation Fund. The estimated savings is highly speculative because the annual amount the agency spends on prescription medication is included in the total amount the agency spends on all medical costs. Furthermore, the percentage of savings for individual medications, dosages, and quantity varies greatly within the fee schedule being adopted. The estimated savings is between $10,000 to $20,000 per year.

local governments:

There are no costs or savings anticipated for local governments because the rule pertains only to the state agency, which in this particular instance is dealing with only retail pharmacies and the sale of non-taxable medications.

small businesses:

Any of the savings described under state budget above would be a revenue loss shared by any small business pharmacy that chooses to do business with the agency. It is important to note that the fee schedule this rule change implements, is already in place and currently accepted by participating pharmacy retailers.

persons other than small businesses, businesses, or local governmental entities:

Large chain pharmacy retailer franchises who choose to participate with the fee schedule would experience the decreased revenue to which they agree when accepting the fee schedule.

Compliance costs for affected persons:

There will not be any compliance costs associated with the change. Only the agency is responsible for monitoring compliance and the personnel and resources to monitor compliance are currently in place.

Comments by the department head on the fiscal impact the rule may have on businesses:

The possible fiscal impacts on businesses have been thoroughly discussed in small businesses and persons other than small businesses above. The impacts, if any, will be negligible and voluntary. The cumulative savings would be spread across or shared with all pharmacy retailers and only among those that choose to participate in the fee schedule by accepting payment from the agency.

Gary Scheller, Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Crime Victim Reparations
AdministrationRoom 200
350 E 500 S
SALT LAKE CITY, UT 84111-3347

Direct questions regarding this rule to:

• Gary Scheller at the above address, by phone at 801-238-2362, by FAX at 801-533-4127, or by Internet E-mail at [e-mail]
• Simone Rudas at the above address, by phone at 801-538-3240, by FAX at , or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/31/2017

This rule may become effective on:

06/07/2017

Authorized by:

Gary Scheller, Director

RULE TEXT

R270. Crime Victim Reparations, Administration.

R270-1. Award and Reparation Standards.

R270-1-1. Authority and Purpose.

As provided in Section 63M-7-506 the purpose of this rule is to provide interpretation and standards for the administration of crime victim reparations.

 

R270-1-2. Definitions.

(1) Terms used in this rule are found in Section 63M-7-502.

(2) In addition:

(a) "APRN" means Advanced Practice Registered Nurse;

(b) "DOPL" means Utah Department of Commerce, Division of Professional and Occupational Licensing;

(c) "PEHP" means the Public Employees' Benefit and Insurance Program created in Section 49-20-103;

(d) "primary victim" means a victim who has been directly injured by criminal conduct;

([d]e) "program" means the Victim Services Grant Program, authorized under Section 63M-7-506(l)(i), which allocates money for other victim services once a sufficient reserve has been established for reparations claims; and

([e]f) "secondary victim" means a victim who is not a primary victim but who has a relationship with the victim and was traumatically affected by the criminally injurious conduct that occurred to the victim, including an immediate family member of a victim such as a spouse, father, mother, stepparents, grandparents, child, brother, sister, stepchild, stepbrother, stepsister, or legal guardian or other person who the reparations officer reasonably determines bears an equally significant relationship to the primary victim.

 

R270-1-3. Funeral and Burial Award.

(1) Pursuant to Subsection 63M-7-511(4)(f), total award for funeral and burial expenses is $7,000 for any reasonable and necessary charges incurred directly relating to the funeral and burial of a victim. This amount includes transportation of the deceased. Allowable expenses in this category may include the emergency acquisition of a burial plot for victims who did not previously possess or have available to them a plot for burial.

(2) Transportation of secondary victims to attend a funeral and burial service shall be considered as an allowable expense in addition to the $7,000.

(3) Loss of earnings for secondary victims to attend a funeral and burial service shall be allowed as follows:

(a) Three days in-state

(b) Five days out-of-state

(4) When a victim dies leaving no identifying information, claims made by a provider cannot be considered.

 

R270-1-4. Negligent Homicide and Hit and Run Claims.

(1) Negligent homicide claims shall be considered criminally injurious conduct as defined in Subsection 63M-7-502(9).

(2) Pursuant to Subsection 63M-7-502(9)(a), criminally injurious conduct shall not include victims of hit and run crimes.

 

R270-1-5. Counseling Awards.

(1) Pursuant to Subsections 63M-7-502(21) and 63M-7-511(4)(c), out-patient mental health counseling awards are subject to limitations as follows:

(a) The reparation officer shall approve a standardized treatment plan.

(b) The cost of initial evaluation and testing may not exceed $300 and shall be part of the maximum allowed for counseling. For purposes herein, an evaluation shall be defined as diagnostic interview examination including history, mental status, or disposition, in order to determine a plan of mental health treatment.

(c)(i) Primary victims of a crime shall be eligible for the lesser of 25 aggregate individual and/or group counseling sessions or $2,500 maximum mental health counseling award.

(ii) Parents, children, spouses and siblings of homicide victims shall be considered at the same rate as primary victims for inpatient and outpatient counseling.

(d) All other secondary victims of a crime shall be eligible for the lesser of 15 aggregate individual and/or group counseling sessions or $1,250 maximum mental health counseling award.

(e) Extenuating circumstances warranting consideration of counseling beyond the maximum may be submitted by the mental health provider when it appears likely that the maximum award will be reached.

(f) Counseling costs will not be paid in advance but will be paid on an ongoing basis as victim is being billed.

(2) In-patient hospitalization shall only be considered for primary victims when the treatment has been recommended by a licensed therapist in life-threatening situations. Acute in-patient hospitalization shall not exceed $600 per day, which includes all ancillary expenses, and will be considered payment in full to the provider. Inpatient psychiatric visits will be limited to one visit per day with payment for the visit made to the institution at the highest rate of the individuals providing therapy as set by rule. Reimbursement for testing costs may also be allowed. Parents, children, spouses and siblings of homicide victims shall be considered at the same rate as primary victims for inpatient hospitalization. All other secondary victims of other crime types are excluded.

(3) Residential and day treatment shall only be considered for primary victims when the treatment has been recommended by a licensed therapist to stabilize the victim's behavior and symptoms. Only facilities with 24 hour nursing care or 24 hour on call nursing care will be compensated for residential and day treatment. Residential and day treatment shall not be used for extended care of dysfunctional families and containment placements. Residential treatment shall not exceed $300 per day and will be considered payment in full to the provider. Residential treatment shall be limited to 30 days, unless there are extenuating circumstances requiring extended care. All residential clients shall receive routine assessments from a psychiatrist and/or APRN at least once a week for medication management. Day treatment shall not exceed $200 per day and will be capped at $10,000. These charges will be considered payment in full to the provider. Parents, children, spouses and siblings of homicide victims shall be considered at the same rate as primary victims for residential and day treatment. All other secondary victims of other crime types are excluded.

(4) Wilderness programs shall not be covered as an appropriate treatment modality when considering inpatient hospitalization, residential or day treatment.

(5) The office shall not pay for treatment for an offender related to the perpetration of the criminally injurious conduct. Reparations officers shall establish a reasonable percentage regarding victimization treatment for outpatient, inpatient, residential and day treatment on a case by case basis upon review of the mental health treatment plan and treatment records.

(6) Payment for mental health counseling shall only be made to licensed therapists; or to individuals working towards a license that provide certified verification of satisfactory completion of an education and earned degree as required by the DOPL, working under the supervision of a supervisor approved by the DOPL. Student interns otherwise eligible under Subsection 58-1-307(1)(b) Exceptions from licensure, and/or the institution/facility/agency responsible for the supervision of the student, shall not be eligible for payment under this rule for counseling services provided by the student.

(7) Payment of hypnotherapy shall only be considered when treatment is performed by a licensed mental health therapist based upon an approved Treatment Plan.

(8) The following maximum amounts shall be payable for mental health counseling:

(a) up to $130 per hour for individual and family therapy performed by licensed psychiatrists, and up to $65 per hour for group therapy;

(b) up to $90 per hour for individual and family therapy performed by licensed psychologists and up to $45 per hour for group therapy;

(c) up to $70 per hour for individual and family therapy performed by a licensed master's level therapist or an APRN, and up to $35 per hour for group therapy. These rates shall also apply to therapists working towards a license and supervised by a licensed therapist;

(d) The above-mentioned rates shall apply to individuals performing treatment, and not those supervising treatment.

(9) Chemical dependency specific treatment will not be compensated unless the reparations officer determines that it is directly related to the crime. The board may review extenuating circumstance cases.

 

R270-1-6. Attorney Fees.

Pursuant to Subsection 63M-7-524(2) attorney fees shall be made within the reparation award and not in addition to the award. If an award is paid in a lump sum, the attorney's fee shall not exceed 15% of the total award; if payments are awarded on an ongoing basis, attorney fees will be paid when warrants are generated but not to exceed 15%. When award denials are overturned, attorney fees shall be calculated only on the appealed reparation issue.

 

R270-1-7. Reparation Awards.

Pursuant to Section 63M-7-503, reparation awards can be made to victims of violent crime where restitution has been ordered by the court but appears unlikely the restitution can be paid within a reasonable time period. However, notification of the award will be sent to the courts, prosecuting attorneys, Board of Pardons or probation and parole counselors indicating any restitution monies collected up to the amount of the award will be forwarded to the fund.

 

R270-1-8. Abortion.

Expenses for an abortion that is permitted pursuant to Sections 76-7-301 through 76-7-331 shall be eligible for a reparation award as long as all the requirements of Section 63M-7-511 have been met.

 

R270-1-9. Emergency Awards.

Pursuant to Section 63M-7-522, emergency awards up to $1000 can be granted. No time limit is required for filing an emergency claim. Processing of emergency claims is three to five days.

 

R270-1-10. Loss of Earnings.

(1) Pursuant to Subsection 63M-7-511(4)(d), the 66-2/3% of the person's weekly salary or wages is calculated on gross earnings.

(2) Loss of earnings for primary and secondary victims may be reimbursed for up to a maximum of twelve (12) weeks work loss, at an amount not to exceed the maximum allowed per week by Worker's Compensation guidelines in effect at the time of work loss. The board may review extenuating circumstances on loss of earnings claims for the purpose of consideration and authorization of extensions beyond set limits.

 

R270-1-11. Moving, Transportation Expenses.

(1) Pursuant to Subsection 63M-7-511(4)(a), victims of violent crime who suffer a traumatic experience or threat of bodily harm are allowed moving expenses up to $1,000. Board approval is needed where extenuating circumstances exist.

(2) Transportation expenses up to $1000 are allowed for crime-related travel including, but not limited to, participation in court hearings and parole hearings as well as medical or mental health visits for primary and secondary victims. The board may approve travel expenses in excess of $1000 where extenuating circumstances exist.

 

R270-1-12. Collateral Source.

(1) Money from the fund shall be used before State Social Services contract monies when considering out-of-pocket expenses in child sexual abuse cases, if the individuals qualify as victims. If the victim qualifies for Medicaid, the contract monies should be used first.

(2) Money from the fund shall be used before money from the Utah Medical Assistance Program, established in Section 26-18-10, when considering allowable benefits for victims of violent crime.

 

R270-1-13. Record Retention.

(1) Retention of the UOVC annual report and crime victim case files shall be as follows:

(2) Annual reports and other statistical information shall be retained in office for a period of three years and then transferred to State Archives.

(3) Crime victim case files shall be retained in office as needed for administrative use. After closure or denial of a case file, case file shall be retained in office for one year and then transferred to the Utah Department of Administrative Services, Division of Archives and Records Service. Case files will be retained in the State Records Center for 99 years and then destroyed.

 

R270-1-14. Awards.

(1) Pursuant to Section 63M-7-521, when billing from the providers exceeds the maximum allowed, the reparations officer shall pay the bills by the date of service. The reparations officer shall solicit input from the victim when making this determination. When the services and the billings have occurred at the same time, the reparations officer shall determine payment on a percentage basis.

(2) Awards will only be granted for costs the reparations officer determines are directly related to or resulting from criminally injurious conduct.

 

R270-1-15. Essential Personal Property.

(1) Pursuant to Subsection 63M-7-511(4)(h), essential personal property covers all personal articles necessary and essential for the health and safety of the victim.

(2) The reparations officer may allow up to $5000 for medically necessary items such as eyeglasses, hearing aids, and wheelchairs. The board may approve expenses for medically necessary items in excess of $5000 where extenuating circumstances exist.

(3) The reparations officer may allow up to $1500 for essential personal property not included in Subsection (B) such as burglar alarms, door locks, crime scene cleanup, repair of walls and broken windows, etc. The board may approve expenses for essential personal property in excess of $1500 where extenuating circumstances exist.

 

R270-1-16. Subrogation.

(1) Pursuant to Section 63M-7-519, subrogation monies collected from the perpetrator, insurance, etc., will be placed in the fund and will not be credited toward a particular victim or claimant award amount.

(2) Pursuant to Subsections 63M-7-519(2), in such instances where a settlement against a third party appears imminent, the director may reduce by up to 33% the lesser of; (a) the amount paid by the state; or (b) the amount of the settlement. Reduction in excess of 33% shall be determined by the board with the concurrence of the director.

 

R270-1-17. Unjust Enrichment.

Pursuant to Subsection 63M-7-510(1)(d), the following criteria shall be used when considering claims involving possible unjust enrichment of an offender:

(1) Unjust enrichment determination shall not be based solely on the presence of the offender in the household at the time of the award.

(2) Awards shall not be denied on the basis that the offender would be unjustly enriched, if the victim cooperates with investigation and prosecution of the crime and does what is possible to prevent access by the offender to substantial compensation.

(3) Payment to third party providers shall be made to prevent monies intended for victim expenses be used by or on behalf of the offender.

(4) Collateral resources such as court-ordered restitution and medical insurance that are available to the victim from the offender shall be examined. However, the victim shall not be penalized for failure of an offender to meet legal obligations to pay for the cost of the victim's recovery.

(5) Factors to be considered in determining whether enrichment is substantial or inconsequential include the amount of the award and whether a substantial portion of the compensation award will be used directly by or on behalf of the offender. If the offender has direct access to a cash award and/or if a substantial portion of it will be used to pay for his living expenses, that portion of the award that will substantially benefit the offender may be reduced or denied. When enrichment is inconsequential or minimal, the award shall not be reduced or denied.

 

R270-1-18. Prescription or Over-the-Counter Medications.

(1) Reimbursement of prescription or over-the-counter medications and/or medication management services used in conjunction with mental health therapy shall be considered only for the duration of an approved Treatment Plan.

(2) Reimbursement of prescription or over-the-counter medications used in conjunction with medical treatment shall be considered only during the course of treatment by the physician.

(3) Medication management rates shall be limited to a maximum of $62.50 per thirty minute session.

(4) The office shall pay the amount that would be paid by PEHP for prescription medications dispensed by a pharmacy, not including those included in R270-1-23.

 

R270-1-19. Peer Review Committee.

A volunteer Peer Review Committee may be established to review issues and/or provide input to office staff on out-patient mental health counseling claims. The composition, duties, and responsibilities of this Committee shall be defined by the board by written internal policy and procedure.

 

R270-1-20. Medical Awards.

Pursuant to Subsection 63M-7-511(4)(b), medical awards are subject to limitations as follows:

(1) All medical costs must be related directly to the victimization and all treatment must be considered usual and customary.

(2) The reparations officer reserves the right to audit any and all billings associated with medical care.

(3) The reparations officer will not pay any interest, finance, or collection fees as part of the award.

(4)(i) If the claimant has no medical insurance or other collateral source for payment of the victim's medical bill, the office shall pay 60% of billed charges for eligible medical bills.

(ii) If the claimant has medical insurance or another collateral source for payment of the victim's medical bills, the office shall pay the portion of the eligible medical bills that the claimant is obligated to pay pursuant to the insurance agreement.

(iii) This rule does not apply to expenses governed by R270-1-5 or R270-1-23.

(5) This rule supersedes any other agreements regarding payment of medical bills by the office.

(6) Child endangerment examinations for children that have been exposed to drugs shall be paid for when the health and safety of the child is at risk and no other collateral source is available. The cost of the exam needs to be an expense incurred by the victim. The writing of evidentiary reports and any form of lab testing shall not be covered as part of the examination.

 

R270-1-21. Misconduct.

Pursuant to Subsections 63M-7-502(22) and 63M-7-512(1)(b) misconduct shall be considered conduct which contributed to the victim's injury or death or conduct which the victim could have reasonably foreseen could lead to injury or death. In determining whether the victim engaged in misconduct, the reparations officers shall consider any behavior of the victim that may have directly or indirectly contributed to the victim's injury or death including consent, provocation, verbal utterance, gesture, incitement, prior conduct of the victim or the ability of the victim to have reasonably avoided the incident upon which the claim is based. Reparations officers shall not consider any behavior or action of any victim that is committed by the victim while under the duress or experience of threat, exploitation, coercion or any circumstance absent the victim's own willful desire to participate or any behavior or action committed or perceived to have been committed by the victim of any sex crime when determining whether the victim engaged in misconduct.

 

R270-1-22. Three Year Limitation.

Pursuant to Subsections 63M-7-506(1)(c) and 63M-7-525(2) a claim for benefits expires and no further payments will be made with regard to the claim after three years have elapsed from the date of application with the office. Reparations officers may extend claims that have been closed because of the Three Year Limitation rule if extenuating circumstances exist.

 

R270-1-23. Sexual Assault Forensic Examinations.

Pursuant to Subsections 63M-7-502(20) and 63M-7-511(4)(i), the cost of sexual assault forensic examinations for gathering evidence and providing treatment may be paid by the office in the amount of up to $750.00 for a full examination which must include photo documentation. Pursuant to Section 63M-7-521.5, the office may also pay for the cost of medication and/or pharmacological management and consultation provided for the purpose of obtaining free medications and [70]60% of the eligible hospital services and supplies. Payment to the hospital or other eligible facility for the rent or use of an examination room or space for the purpose of conducting a sexual assault forensic exam shall not exceed $350.00. The following agency guidelines need to be adhered to when making payments for sexual assault forensic examinations:

(1) A sexual assault forensic examination shall be reported by the health care provider who performs the examination to law enforcement.

(2) Victims shall not be charged for sexual assault forensic examinations.

(3) Victims shall not be required to participate in the criminal justice system or cooperate with law enforcement or prosecuting attorneys as a condition of being provided a sexual assault forensic examination or as a condition of payment being made pursuant to this rule.

(4) The agency may reimburse any licensed health care facility that provides services for sexual assault forensic examinations.

(5) The agency may reimburse licensed medical personnel trained to gather evidence of sexual assaults who perform sexual assault forensic examinations.

(6) The office may pay for the collection of evidence and not attempt to prove or disprove the allegation of sexual assault.

(7) A request for reimbursement shall include the law enforcement case number or be signed by a law enforcement officer, victim/witness coordinator or medical provider.

(8) The application or billing for the sexual assault forensic examination must be submitted to the office within one year of the examination.

(9) The billing for the sexual assault forensic examination shall:

(a) identify the victim by name, address, date of birth, Social Security number, telephone number, patient number;

(b) indicate the claim is for a sexual assault forensic examination; and

(c) itemize services and fees for services.

(10) All collateral sources that are available for payment of the sexual assault forensic examination shall be considered before money in the fund is used. Pursuant to Subsection 63M-7-513(5), the director may determine that reimbursement for a sexual assault forensic examination will not be reduced even though a claim could be recouped from a collateral source.

(11) Evidence will be collected only with the permission of the victim or the legal guardian of the victim.

(12) Restitution for the cost of the sexual assault forensic examination may be pursued by the office.

(13) Payment for sexual assault forensic examinations shall be considered for the following:

(a) Fees for the collection of evidence, for forensic documentation only, to include:

(i) history;

(ii) physical; and

(iii) collection of specimens and wet mount for sperm.

(b) Emergency department services to include:

(i) emergency room, clinic room or office room fee;

(ii) cultures for gonorrhea, chlamydia, trichomonas, and tests for other sexually transmitted disease;

(iii) serum blood test for pregnancy;

(iv) medications administered to the patient at the time of services, including:

(A) the morning after pill or high dose oral contraceptives for the prevention of pregnancy; and

([v]B) treatment for the prevention of sexually transmitted disease up to four weeks.

(14) The victim of a sexual assault that is requesting payment by the Office for services needed or rendered beyond the sexual assault forensic examination needs to submit an application for compensation to the office.

 

R270-1-24. Loss of Support Awards.

(1) Pursuant to Subsection 63M-7-511(4)(g), loss of support awards shall be covered on death claims only.

(2) Except as provided in R270-1-24(3), loss of support awards are available only to minor children of the deceased victim. Payment of the award may be made to the parent or guardian of the minor child on behalf of the minor child.

(3) The board may approve loss of support awards to persons who are not minor children, but were physically and financially dependent on the deceased victim.

 

R270-1-25. Victim Services.

(1) Pursuant to Subsection 63M-7-506(1)(i), the board may authorize the program when there is a surplus of money in the fund in addition to what is necessary to pay reparation awards and associated administrative costs for the upcoming year.

(2) When the program is authorized, the board:

(a) shall determine the amount available for the program for that year;

(b) shall announce the availability of program funds through a request for proposals or other similar competitive process approved by the board; and

(c) may establish funding priorities and shall include any priorities in the announcement of funds.

(3) Requests for funding shall be submitted on a form approved by the board.

(4) The board shall establish a process to review requests for funding and shall make final decisions regarding the approval, modification, or denial of requests for funding. The board may award less than the amount determined in R270-1-25(C)(2)(a). The decisions of the board may not be appealed.

(5) An award by the board shall not constitute a commitment for funding in future years. The board may limit funding for ongoing projects.

(6) Award recipients shall submit quarterly reports to the board on forms established by the director. The office staff shall monitor all victim services grants and provide regular reports to the board.

 

R270-1-26. Nontraditional Cultural Services.

Cultural services rendered in accordance with recognized spiritual or religious methods of healing, legally available in the state of Utah, may be considered for payment. Since a reasonable and customary schedule of charges has not been established, the reparation officer may require the following: a written itemized description of each procedure, function and/or activity performed and an explanation of its benefit to the victim; the location and time involved to perform such services; and a summary of qualifications and experience which allows the service provider to perform the services. Services shall be requested in lieu of traditional treatment methods. Awards shall be deducted from the claimant's outpatient mental health award and shall remain within the allowed limits set upon that benefit. The fund will not pay for intoxicating or psychotropic substances unless prescribed by a medical practitioner licensed to do so. Claim will be denied if no healing benefit can be identified.

 

KEY: victim compensation, victims of crimes

Date of Enactment or Last Substantive Amendment: [March 10], 2017

Notice of Continuation: June 15, 2016

Authorizing, and Implemented or Interpreted Law: Title 63M, Chapter 7, Part 5

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