9 CRR-NY 525.12NY-CRR
9 CRR-NY 525.12
9 CRR-NY 525.12
525.12 Manner of payment; awards.
(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 crime related deaths occurring on and after 11/1/96, claims submitted by any person who incurs such costs and which are filed on and after 6/26/19;
(ii) $6,000 for crimes occurring on and after 11/1/96, claims submitted by any person who incurs such costs;
(iii) $2,000 for crimes occurring on and after 6/12/91 until 10/31/96, claims submitted by any person who incurs such costs;
(iv) $2,500 for crimes occurring on and after 8/1/85 until 6/11/91, claims submitted by any person who incurs such costs;
(v) $1,500 for crimes occurring on and after 7/30/83 until 7/31/85, claims submitted by any person who incurs such costs;
(vi) $1,500 for crimes occurring on and after 6/15/82 until 7/29/83, claims submitted by family members;
(vii) $1,500 for crimes occurring on and after 6/16/68 until 6/14/82, claims submitted by a surviving spouse, parent or child;
(viii) $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 of forensic sexual assault examinations.
(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 a sexual assault forensic examination 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 a sexual assault forensic examination.
(ii) Sexual assault shall mean any sexual offense defined in article 130 of the New York State Penal Law.
(iii) Forensic examination 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 New York State Department of Health's Protocol for the Acute Care of the Adult Patient Reporting Sexual Assault or the Child and Adolescent Sexual Offense Protocol. Copies of these protocols may be obtained from the Department of Health at the following address: The Bureau of Women's Health, NYS Department of Health, Room 1882, Tower Building, Empire State Plaza, Albany, New York 12237-0621, (518) 474-3664.
(iv) Claim form shall mean the Office of Victim Services Medical Provider Forensic Rape Examination 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.
(2) Notwithstanding any contrary provisions, whenever a licensed provider administers a forensic examination to a survivor of a sexual assault in accordance with the established protocol as defined in subparagraph (1)(iii) of this subdivision, 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 forensic examination, 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 forensic exam 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)(iv) of this subdivision and attach an itemized bill indicating the relevant forensic examination related current procedural terminology (CPT) codes associated with each service provided to the office at: 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 CPT 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 provider shall be reimbursed at the rate of itemized charges not exceeding $800 for forensic examiner services, hospital or healthcare facility services directly related to the forensic exam, and related laboratory tests and pharmaceuticals directly related to the exam. 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 exam, including integral forensic supplies;
(ii) scope procedures directly related to the forensic exam including but not limited to anoscopy and colposcopy;
(iii) laboratory testing directly related to the forensic examination, including drug screening, urinalysis, pregnancy screen, 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 forensic examination;
(iv) pharmaceuticals directly related to the forensic examination including STD, pregnancy, initial HIV prophylaxis up to a seven day supply and hepatitis prophylaxis;
(v) except as provided in paragraph (6) of this subdivision, follow-up post exposure HIV prophylaxis and follow-up HIV counseling, charges for inpatient services, and for services other than those included in subparagraphs (i), (ii), (iii) and (iv) of this paragraph are not included in this rate and shall not be reimbursable under this Part, but shall continue to be reimbursable under established office procedure.
(6) The victim shall not be responsible for the payment of the cost of the forensic examination or any other services specified by the provider in its submission to the office pursuant to paragraph (4) of this subdivision. The licensed provider must accept the reimbursement rate as payment in full for those services submitted to the office pursuant to paragraph (4) of this subdivision and included in subparagraphs (5)(i), (ii), (iii) and (iv) of 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 forensic examinations of the same victim will not be reimbursed. The cost of only one forensic sexual assault examination per victim per alleged sexual assault will be considered a reimbursable cost.
(8) For the forensic examination and services directly related to the forensic examination, the office will reimburse the facility in which the forensic examination was conducted and whose operator's certificate number or facility identification, if applicable, appears on the claim form, the amount of itemized charges not exceeding $800. The amount reimbursed shall be proportionately allocated among the service providers by the billing facility.
(9) Expenses must be related to a forensic examination performed within 96 hours following the incident. This reporting time shall be waived for a child victim or for any victim if good cause has been shown.
(10) A claim for reimbursement of expenses associated with a forensic examination made pursuant to this section must be submitted within one year of the date of the examination to the Albany Office of Crime Victim Services.
(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) One hundred percent denial of award. Any conduct on part of the victim, as indicated by law enforcement in the investigation of the claim pursuant to section 525.5(b) 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) Seventy-five percent reduction of award. Any conduct on part of the victim, as indicated by law enforcement in the investigation of the claim pursuant to section 525.5(b) of this Part, constituting any other felony not considered in subparagraph (i) of this paragraph.
(iii) Fifty percent reduction of award. Any conduct on part of the victim, as indicated by law enforcement in the investigation of the claim pursuant to section 525.5(b) of this Part, constituting any other misdemeanor not considered in subparagraph (i) of this paragraph.
(iv) Twenty-five 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 section 525.5(b) 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) Fifty percent denial of award. Any conduct on part of the victim, as indicated by law enforcement in the investigation of the claim pursuant to section 525.5(b) 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) Twenty-five percent reduction of award. Any conduct on part of the victim, as indicated by law enforcement in the investigation of a claim pursuant to section 525.5(b) 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 section 525.5(b) 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 section 525.5(b) of this Part, the office may make an award without reduction for conduct contributing.
9 CRR-NY 525.12
Current through September 15, 2021
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IMPORTANT NOTE REGARDING CONTENT CURRENCY: JULY 31, 2023, is the date of the most recently produced official NYCRR supplement covering this rule section. For later updates to this section, if any, please: consult editions of the NYS Register published after this date; or contact the NYS Department of State Division of Admisnistrative Rules at [email protected]. See Help for additional information on the currency of this unofficial version of the NYS Rules.