(3)(i) Except as provided in subparagraph (ii) of this paragraph, and subject to applicable statutory limitations, 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 Board may award loss of earnings for such period, or a portion thereof.

1. Statutory authority: Article 22 of the New York State Executive Law creates the Crime Victims Board (the Board) and section 623(3) grants the Board the authority to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of Article 22. New York State Executive Law section 631(2) and (3) provide that the Board may make awards for loss of earnings (LOE) for the actual loss sustained, but not exceeding $600/week for a maximum award amount of $30,000. In instances where the medical evidence obtained during the investigation of a claim indicates a period of disability, the Board may make an award for actual LOE for that period. In instances where the evidence compiled during the investigation of a claim does not indicate a period of disability, the Board has consistently applied a presumptive, one-week period of disability measured as seven consecutive days from and including the date of the crime, in order to provide some assistance to innocent victims of crime while at the same time acting in a fiscally prudent manner. These changes are proposed in order for the Board to codify this longstanding practice, meet its statutory obligations and provide notice to claimants of what the Board considers acceptable documentation required to receive a loss of earnings (LOE) award in a reasonable, fiscally prudent and consistent manner.

2. Legislative objectives: By enacting the New York State Executive Law section 631(2) and (3), the Legislature sought to ensure that the Board could reimburse innocent victims of crime for their LOE which are the direct result of the injury upon which the claim is based. By enacting Executive Law, section 623(3), the Legislature sought to ensure the Board has the discretion to adopt suitable rules which establish a rational and consistent procedure for fulfilling its goals.

3. Needs and benefits: Currently, Article 22 of the New York State Executive Law provides that the Board may make awards for LOE. Regulations (9 NYCRR 525), however, do not explicitly provide guidance to claimants or the Board as to how such awards may be made. Provisions related to awards for LOE have been included in Article 22 since the creation of the Board in 1966. During the past forty-plus years, the Board has based its LOE award determinations on the period of disability established by the medical evidence obtained during the investigation of a claim. There are instances, however, when the investigation of a claim does not produce sufficient evidence to establish a period of disability. This is most common with victims of assaults who require initial, emergency medical attention but do not seek follow-up medical care. When the Board examines a request for the reimbursement of LOE under such circumstances, the Board consistently applies a presumptive, one-week period of disability. This presumptive, one-week period takes into consideration the day of the crime itself and a reasonable but limited period of time during which the victim is presumed to have received emergency medical attention and recovered from physical injury sufficiently to resume working. If a person is granted this one-week LOE award and subsequently provides medical evidence substantiating a longer period, the Board will reassess the award accordingly. These proposed changes are necessary to make claimants or potential claimants aware of the need for medical evidence to establish a period of disability and the award the Board would consider reasonable if this period can not be clearly established. The proposal will assist the Board in making consistent award determinations, and codify the Board's longstanding practice.

4. Costs: a. Costs to the State. The proposed regulations would not impose any additional costs on the agency or State beyond those required by existing law. This is a codification of the Board's longstanding practice when making LOE award determinations. The proposed regulatory additions should, in fact, result in the efficient use of award dollars by (1) clearly defining the circumstances under which the Board would consider an award for LOE under its statutory authority, and (2) codifying the reasonable but limited period of time already used during which a victim is presumed to be disabled as the result of a crime, where medical evidence is lacking. Also, this provision may reduce administrative time spent reviewing and following up on claims filed with the Board because claimants or potential claimants would know to include medical evidence establishing a period of disability in support of their LOE request.

b. Costs to local governments. These proposed regulations do not apply to local governments and would not impose any additional costs on local governments.

c. Costs to private regulated parties. The proposed regulation would not impose any additional costs on private regulated parties.

5. Local government mandates: These proposed regulations do not impose any program, service duty or responsibility upon any local government.

6. Paperwork: These proposed regulations do not create any more additional paperwork requirements for claimants than is currently required.

7. Duplication: These proposed regulations do not duplicate any other existing state or federal requirements.

8. Alternatives: Since the creation of the Board in 1966, it has required the establishment of a period of disability, supported by medical evidence, when considering claims for LOE awards. This is relatively simple when the medical evidence compiled during the investigation of a claim clearly establishes the period. There are instances, however, where the claimant may not have sought follow-up medical attention for injuries and the investigation does not produce such information. From its years of its experience with such circumstances, the Board has and continues to believe a presumptive one-week period is the most reasonable under the circumstances where a victim's medical evidence does not exist or support a period of disability longer than one-week. This practice allows the Board to make limited, fiscally prudent determinations while at the same time fulfill its mission to provide assistance to innocent victims of crime.

Alternative methodologies considered were: (1) eliminating the presumptive period of disability altogether or (2) providing for a longer presumptive period of disability.

However, decades of balancing funding limitations against the number and varying circumstances surrounding individual crime victim claims for LOE have revealed that one-week is both sufficient and appropriate for the relatively minor physical injuries some victims may suffer which do not require any more medical attention than perhaps Emergency Room treatment and which do not have any long-lasting physical effects on victims. The Board's longstanding practice of providing a one-week LOE award under these narrow circumstance is therefore reasonable and the best alternative. Those victims with more serious injuries which may result in a period of disability beyond one-week are more likely to follow-up with a medical provider. Such provider would be able to furnish the Board with the information it needs to establish a longer period of disability.

9. Federal standards: These proposed regulations are not forbidden or duplicated by any federal requirements.

10. Compliance schedule: The regulations will be effective on the date they are adopted.

The New York State Crime Victims Board (the Board) projects there will be no adverse economic impact on small businesses or local governments in the State of New York as a result of this proposed rule change. This proposed rule change simply codifies the Board's current and longstanding practice of determining loss of earnings awards for claimants. Since nothing in this proposed rule change will create any adverse impacts on any small businesses or local governments in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Regulatory Flexibility Analysis is not required and therefore one has not been prepared.

The New York State Crime Victims Board (the Board) projects there will be no adverse impact on public or private entities in rural areas in the State of New York as a result of this proposed rule change. This proposed rule change simply codifies the Board's current and longstanding practice of determining loss of earnings awards for claimants. Since nothing in this proposed rule change will create any adverse impacts on any public or private entities in rural areas in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Rural Area Flexibility Analysis is not required and therefore one has not been prepared.

The New York State Crime Victims Board (the Board) projects there will be no adverse impact on jobs or employment opportunities in the State of New York as a result of this proposed rule change. This proposed rule change simply codifies the Board's current and longstanding practice of determining loss of earnings awards for claimants. Since nothing in this proposed rule change will create any adverse impacts on jobs or employment opportunities in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Job Impact Statement is not required and therefore one has not been prepared.