DELAWARE Violent Crimes Compensation BOARD

Administrative Office of the Courts

PROPOSED

PUBLIC NOTICE

The Delaware Violent Crimes Compensation Board in accordance with Title 11 Del.C. Chapter 90 proposes amendments to its regulations. Specifically, the proposed changes to 26.0 Burial awards explain the funeral and burial policy.

The proposed changes which have been added to 25.0 explain the new mental health policy which has been simplified to require less paperwork and to use similar forms and universal billing documents already used by mental health providers. The Board’s intent is to award a mental health counseling benefit to a primary or secondary victim and then to pay for the mental health counseling without having the victims case reheard by the Board.

The Board will receive and consider input in writing from any person concerning the proposed regulations. Written comments should be submitted to Barbara Brown, Executive Director at 240 N. James Street, Suite 203, Wilmington, Delaware 19804.

The final date to submit public comments is March 31, 2009.

There are two public hearings scheduled to receive comments. The first is on March 30 at 2pm, Tatnall Building, room 113, Dover Delaware.19904. The second public hearing is on March 31 at the Carvel State Bldg. auditorium, 820 N. French Street, Wilmington, Delaware 19801 at 2pm. Anyone wishing to obtain a copy of the proposed regulations should contact Barbara Brown at 302 995-8383.

The Board will consider promulgating the proposed regulations following the public hearing.

301 Violent Crimes Compensation Board Rules and Regulations

1.1 The Violent Crimes Compensation Board, hereby, declares that it serves a public purpose, and is of benefit to:

1.1.1 individuals who are victimized within the State of Delaware;

1.1.2 Delaware residents who are victimized without the State of Delaware in possessions or territories of the United States not having eligible crime victim compensation programs;

1.1.3 Delaware residents who are victimized during acts of terrorism committed outside the United States.

1.1.4 The Violent Crimes Compensation Board shall promote the welfare of victims of crime by establishing a means of meeting the additional hardships imposed upon the innocent victims of certain crimes, and the family and dependents of those victims.

2.1 All communications of the Board shall be addressed to the "Violent Crimes Compensation Board, State of Delaware", at the office address of the Board or such other address as the Board shall otherwise make known.

2.2 The office of the Board will be open from 8:00 a.m. until 4:00 p.m. of each weekday except legal holidays, and unless otherwise provided by statute or Executive Order.

3.1 The definitions set forth in 11 Del.C. Ch. 90 of the Delaware Criminal Code are, hereby adopted by this Board, and incorporated by reference in these rules which reads as follows: Section 9002 "The following words, terms and phrases, when used in this Act, shall have the meanings ascribed to them except where the context clearly indicates a different meaning:

‘Board' shall mean the Violent Crimes Compensation Board as established by this Act;

‘Child’, shall mean an unmarried person who is under eighteen years of age, and shall include the step-child or adopted child of the victim, or child conceived prior to, but born after, the personal injury or death of the victim.

‘Crime' for purposes of this Chapter shall mean:

(1) any specific offense set forth in Chapter 5 of Title 11 of the Delaware Code, if the offense was committed after July 1, 1973, and contains the characteristics of murder, rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, manslaughter, assault, kidnapping, arson, burglary, riot, robbery, unlawful use of explosives, or unlawful use of firearms.

(2) any specific offense set forth in Chapter 3, Title 11 of the Delaware Code if such offense was committed prior to July 1, 1973, and contains the characteristics of murder, rape, manslaughter, assault, kidnapping, arson, burglary, robbery, riot, unlawful use of explosives, or unlawful use of firearms.

(3) Any specific offense occurring in another state possession or territory of the United States whose domicile is in Delaware is a victim, if the offense contain the characteristics of murder, rape, manslaughter, assault, kidnapping, arson, burglary, riot robbery, unlawful use of explosives or unlawful use of firearms as set forth in Chapter 5 of this title. (66 Del. Laws, c. 269, Section 11.)

(4) Any specific act of delinquency by a child, which if committed by an adult would constitute a specific offense set forth in Chapter 5 of this Title, and contains the characteristics of murder, rape, unlawful sexual intercourse, unlawful sexual penetration or unlawful sexual contact, manslaughter, assault, kidnapping, arson, burglary, robbery, riot, unlawful use of explosives or unlawful use of firearms.

(5) An act of terrorism, as defined in Section 2331 of Title 18, United States Code, committed outside the United States against a resident of this State. (Effective date of amendment 4/8/97.)

‘Dependent' shall mean a person wholly or substantially dependent upon the income of the victim at the time of the victim's death, or would have been so dependent but for the incompetency of the victim due to the injury from which the death resulted, and shall include a child born after the death of such victim;

‘Guardian' shall mean a person who is entitled by law or legal appointment to care for and manage the person or property, or both, of a child or incompetent;

‘Incompetent' shall mean a person who is incapable of managing his own affairs, as determined by the Board or by a court of competent jurisdiction;

‘Personal Injury' shall mean bodily harm, or extreme mental suffering, and shall include pregnancy of the victim.

‘Pecuniary Loss' in instances of personal injury shall include medical expenses, including psychiatric care, non-medical remedial care and treatment rendered in accordance with a religious method of healing; hospital expenses; loss of past earnings; and loss of future earnings because of a disability resulting from such personal injury. ‘Pecuniary Loss' in instances of death of the victim shall include funeral and burial expenses and loss of support to the dependents of the victim. Pecuniary loss includes any other expenses actually and necessarily incurred as a result of the personal injury or death, but it does not include property damage.

“Secondary victims” shall mean any parent, son, daughter, spouse, brother or sister of the victim.

‘Victim' shall mean a person who is injured or killed by the act of any other person during the commission of a crime as defined in this Chapter.

4.1 Three members shall constitute a quorum for all hearings and business of the Board, except a hearing in which the claimant has requested no more than $5,000.00 compensation and in that instance a quorum of the Board shall be one (1) member. Where an opinion is divided, the majority shall prevail.

5.1 Meetings shall be held upon notice by the Chairman or the Executive Director at such time and place directed.

5.1.1 The Board will maintain a running agenda of all business matters to be discussed and acted upon. Following the hearing of claims, the Board, at its discretion and as time permits, may convene a session to address any matters on its running agenda.

5.1.2 A meeting solely for the purpose of addressing Board business shall be held within 30 days. Adopted October 17, 1991. Revised January 7, 1993.

6.1 The Board shall have a seal for authentication of its orders, awards and proceedings, upon which shall be inscribed the words VIOLENT CRIMES COMPENSATION BOARD, STATE OF DELAWARE.

7.1 The Board is not bound by the Rules of Evidence. Hearsay evidence is admissible.

8.1 The rules of the Board shall be available to the public at the office of the Violent Crimes Compensation Board. A copy of these rules and regulations shall be, on file with all the County law libraries.

9.1 These rules shall be liberally construed to accomplish the purpose of 11 Del.C. Ch. 90.

10.1 In accordance with 11 Del. Laws, c. 90, Section 9004(d), “The Board shall have the following functions, powers, and duties:

10.1.1 Section 9004(d) to adopt, promulgate, amend, and rescind such rules and regulations as are required to carry out the provisions of this Chapter.”

10.1.2 New rules may be adopted and any rules may be amended or rescinded by the Board at a regular or special meeting following compliance with the Administrative Procedures Act, 29 Del. Laws, c. 101, Subchapter I and II.

11.1 The Secretary shall have custody of the Board's seal and official records, and shall be responsible for the maintenance and custody of the docket, files and records of the Board, and of its findings, determinations, reports, opinions, orders, rules, regulations and approved forms.

11.2 All orders and other actions of the Board shall be authenticated or signed by the Secretary or other person as may be authorized by the Board.

11.3 All pleadings or papers required to be filed with the Board shall be filed in the office of the Board within the time limit, if any, fixed by law or Board rule for such filing; and similarly all requests for official information, copies of official records, or opportunity to inspect public records shall be made to the Secretary of the Board.

11.4 Crime victims case files and records maintained by the Violent Crimes Compensation Board shall fall under the open records provision of the Freedom of Information Act, 29 Del. Laws, c. 100.

11.5 Communications addressed to the Board and all petitions, and other pleadings, all reports, exhibits, dispositions, transcripts, orders and other papers or documents, received or filed in the office kept by the Secretary, shall be stamped showing the date of the receipt or filing thereof.

12.1 The Board shall prepare and furnish claim forms and brochures.

13.1 In addition to all other statutory requisites, claims must be filed on official forms which include subrogation, authorization, and consent agreements in the office of the Violent Crimes Compensation Board, located at 1500 E. Newport Pike, Suite 10, Wilmington, Delaware, 19804 within one year of the date of the crime.

14.1 The Board shall maintain confidentiality of records in accordance with the open records provision of the Freedom of Information Act, 29 Del. Laws, c. 100.

15.1 All claimants must fully cooperate with investigators or representatives of this agency in order to be eligible for an award. In the event that cooperation is refused or denied, the Board may deny a claim for lack of cooperation.

16.1 In compensation cases, the burden of proof shall be upon the petitioner, it is also the victim's burden to prove that he was an innocent victim of a violent crime, and that he cooperated in the apprehension and/or conviction of the perpetrator of the crime.

17.1 Exhibits and case file documents submitted prior to or after the Violent Crimes Compensation Board’s hearings shall be maintained in accordance with the provisions of the Department of State, Bureau of Archives and Records Management.

18.1 Any Board member, and the Executive Director, shall have the power to administer oaths, subpoena witnesses, and compel the production of books, papers, -and records relevant to any investigation or hearing authorized by 11 Del.C. §9015.

18.2 The Board or any staff member may take, or request, affidavits and dispositions of witnesses residing within or without of the State.

19.1 Notice of hearings shall be posted in the office of the Violent Crimes Compensation Board seven days prior to the scheduled hearing dates. special meetings or rescheduled hearings shall be posted no later than 24 hours prior to the scheduled time.

19.2 The Board may receive as evidence, any statements, documents, information or material, it finds is relevant and of such nature as to afford the parties a fair hearing. The Board may also accept police reports, hospital records and reports, physicians reports, etc., as proof of the crime and injuries sustained, without requiring the presence of the investigating officer or attending physician at the hearing.

19.3 Any claimant may request to be heard by the Board following the initial claim hearing, if he/she is dissatisfied with the decision of the Board. The request to be heard before the Board must be in writing and must be received in the office of the Violent Crimes Compensation Board within 15 days of the Board’s decision. The written statement must include any and all reasons for the dissatisfaction.

19.4 The Board may arrange for a medical or mental health examination by a physician designated by the Board. A written report of such examination shall be filed by the attending physician with the Board. The physicians's fee shall be paid directly by the Board.

19.5 All witnesses shall testify under oath (or by affirmation), and a record of the proceedings shall be recorded. The Board may examine the claimant and all witnesses.

19.6 Claim hearings shall be open to the public. However, the Board may hold private deliberations under the following circumstances:

19.6.1 When the claim to be considered derives from any sexual offense;

19.6.2 When the claim to be considered derives from any offense by a child unless such child has been deemed amenable to the jurisdiction of a criminal court;

19.6.3 When the claim to be considered derives from any matter not yet adjudicated.

19.7 A claim under $5,000.00 may be heard by one Board Member

19.8 A request to reopen a claim may be heard by one Member if the reopen request for compensation is less than $5,000.00. If the reopen request for compensation is more than $5,000.00, the request to reopen shall be heard by a quorum of the Board.

19.9 If a claim is filed more than one (1) year after the crime occurrence, the claim may be reviewed by one member to accept or deny for processing.

20.1 All claimants have the right to be represented before the Board by an attorney, who is licensed to practice in the State of Delaware. The attorney shall file a notice of appearance.

20.2 Service upon the claimant's attorney shall be deemed as service on the party he/she represents.

21.1 The attorney representing a claimant before this Board must submit an affidavit setting forth the total number of hours expended and describe the nature of the work performed.

21.2 The Attorney's fees shall not exceed $1,000.00.

21.3 Attorney's fees shall be awarded at the discretion of the Board.

21.4 Attorney's fees may be 15% of the total amount awarded to the victim, but not to exceed $1000.00; or a fee based on the number of hours spent in representing the claimant. Hourly fee rate to be determined by the Board.

21.5 No prior agreement between an attorney and a client to pay the attorney a fee out of the client's award will be honored by the Board. Any such arrangement is unlawful.

21.6 Upon application to the Board for attorney's fees, the service rendered the injured victim, as well as the time spent and uniqueness of the case, will be considered in determining the allowance of attorney's fees.

22.1 All questions relating to an appeal shall be determined in accordance with Chapter 90, Section 9005, Title 11, of the Delaware Code which reads as follows:

22.2 Section 9005(c) "The Board is not compelled to provide compensation in any case, nor is it compelled to award the full amount claimed. The Board may make its award of compensation dependent upon such condition or conditions as it deems desirable.

22.3 Any claimant who is aggrieved by the Board's decision concerning compensation or any conditions attached to the award of such compensation may appeal to the Superior Count within (30) thirty days of the decision of the Board. Any appeal to Superior Court shall not be de novo."

23.1 All questions relating to denial of a claim shall be determined in accordance with Chapter 90, Title 11, Section 9006, of the Delaware Code which reads as follows:

23.1.1 "The Board shall deny payment of a claim for the following reasons:

23.1.1.1 Where the claimant was the perpetrator of the crime on which the claim is based, or was the principal involved in the commission of a crime at the time when the personal injury upon which the claim is based was incurred.

23.1.1.2 Where the claimant incurred the personal injury on which the claim is based through collusion with the perpetrator of the crime.

23.1.1.3 Where the claimant refused to give reasonable cooperation to state or local law enforcement agencies in their efforts to apprehend or convict the perpetrator of the crime in question.

23.1.1.4 Where the claim has not been filed within one year after the personal injury on which the claim is based, unless an extension is granted by the Board.

23.1.1.5 Where the claimant has failed to report the crime to a law enforcement agency within 72 hours of its occurrence; provided, however, that the Board in its discretion, may waive this requirement if the circumstances of the crime render this requirement unreasonable.

23.1.1.6 Where the victim is injured as a result of their own suicide or attempted suicide.

23.1.1.7 Where the victim has sustained injuries during a drug-related crime in which the victim was an illegal participant.

23.1.1.8 Where the victim is delinquent in the payment of an penalty assessment levied pursuant to 11 Del.C. §9012, or in the payment of an order of restitution payable to the Victim Compensation Fund; provided, however, that the Board may condition payment of a claim upon the satisfaction of such delinquencies. In addition, the Board may, for hardship or other good cause, waive the provision of this paragraph in their entirety.

23.2 In determining whether or not to make an award under the provisions of this Chapter, or in determining the amount of any award, the Board may consider any circumstances it deems to be relevant, including the behavior of the victim which directly or indirectly contributed to his injury or death; unless such injury or death resulted from the victim's lawful attempt to prevent the commission of a crime or to apprehend an offender.

23.3 If the victim bears any share of responsibility that caused his injury or death, the Board shall reduce the amount of compensation in accordance with its assessment of the degree of such responsibility attributable to the victim. A claim may be denied or reduced, if the victim of the personal injury in question, either through negligence or through willful and unlawful conduct, substantially provoked or aggravated the incident, giving rise to the injury.

24.1 All questions relating to dependency shall be determined in accordance with 11 Del.C. Ch. 90 §9002 which reads as follows:

24.2 Section 9002(d) "Dependent shall mean a person who is wholly or substantially dependent upon the income of the victim at the time of the victim's death, or would have been so dependent but for the incompetency of the victim due to the injury from which the death resulted, and shall include a child born after the death of such victim."

25.1 The Board will make an emergency award only upon a showing of dire necessity. The claimant, must, in writing, request an emergency award when submitting his claim form and show just cause as to why such an award should be considered. No such award will be made until the police report is acquired.

26.1 Awards-

26.1.1 The Board defines the maximum award. The amount shall not exceed $7500, per victim whether primary and/or secondary.

26.1.2 Benefits remain in affect until maximum allowed compensation has been reached.

26.1.3 Exception: Maximum Award

26.1.3.1 There are separate benefits awarded under CCAP (Section 4.0)

26.1.4 The Board pays mental health provider claims at 80% of charges.

26.1.5 Effective 1/1/2009 reopen cases before the Board will be given a $7500 mental health benefit for both primary and secondary victims.

26.2 Applicable Definitions

23.2.1 Victim: shall mean a person who is injured or killed by the act of any other person during the commission of a crime.

26.2.2 Secondary Victim: shall mean any parent, stepparent, grandparent, son, daughter, spouse, sibling, half sibling, fiancée, caretaker, of the victim, latch-key child, any child who resides on a regular or semi-regular basis with any adult who is the victim of, or convicted of, any crime involving an act of domestic violence; the parents of a victim's spouse; or any other person who resided in the victim's household at the time of the crime or at the time of the discovery of the crime.

26.2.3 Child: shall mean an unmarried person who is under eighteen years of age, and shall include the step-child or adopted child of the victim, or child conceived prior to, but born after, the personal injury or death of the victim.

26.2.4 CCAP: A program of assessment and counseling applied to those who meet the following criteria: (further defined in Section 4.0)

26.2.4.1 The definition of a child

26.2.4.2 The definition of a victim

26.2.4.3 The definition of a secondary victim

26.3 Application and Approval Process

26.3.1 All applicants must comply with requirements defined in Operating Procedure 01 when initiating a claim for Mental Health awards.

26.3.2 The Board reviews the application and records their findings.

26.3.3 If request is granted and compensation awarded, the claim in accordance with internal administrative procedures, is processed.

26.4 Child Counseling Program (CCAP)

26.4.1 Applicable to children (Refer to Section 2.0 definitions)

26.4.2 Applicable to either/both primary and secondary victims.

26.4.3 Award includes both evaluation and short term counseling.

26.4.4 Compensation scale:

26.4.4.1 Maximum of $350.00 for child psychological assessment

26.4.4.2 Maximum of $850 for outpatient therapy, utilizing an $85.00 per session standard.

26.4.5 Any request for additional counseling will be reviewed for consideration upon receipt of the required application form.

26.5 Mental Health Providers

26.5.1 Claims for service must be submitted on the form (HCFA 1500) approved by and dedicated for reimbursement by the VCCB.

26.5.2 All claims for reimbursement must be accompanied by the Dedicated VCCB form (Mental Health Treatment)

26.6 Mental Health Practitioners

26.6.1 To be eligible for crime victim's compensation for mental health counseling treatment, within and without the State of Delaware, a practitioner possessing an advanced degree in an applied mental health discipline must provide treatment. The advanced degree should be in Psychiatry, Psychology, Social Work, Counseling, or Psychiatric Nursing.

26.6.2 To be eligible for crime victim's compensation for adult psychological assessments, within and without the State of Delaware, a licensed psychologist or a licensed psychiatrist must perform the assessment unless waived by the Board.

26.6.3 To be eligible for crime victim's compensation for child psychological assessments, within and without the State of Delaware, a licensed child psychologist or a licensed child psychiatrist must perform the assessment unless waived by the Board.

26.6.4 To be eligible for crime victim's compensation for mental health counseling treatment in the State of Delaware, a licensed mental health practitioner must provide services. The five disciplines recognized by the Violent Crimes Compensation Board for payment of mental health counseling benefits is: Licensed Psychiatrist, Licensed Psychologist, Licensed Clinical Social Worker, Licensed Mental Health Counselor, and Licensed Clinical Nurse Specialist.

26.6.5 Payment for mental health treatment received outside the State of Delaware will be evaluated for practitioner's licensure on a case-by-case basis by the Violent Crimes Compensation Board.

26.6.6 The Violent Crimes Compensation Board may consider payment for mental health counseling services rendered by an unlicensed provider if the provider is practicing under the direct supervision of a licensed practitioner in one of the disciplines recognized by the Violent Crimes Compensation Board, as set forth in paragraph one, sentence two. The Violent Crimes Compensation Board will decide claims for payment of services rendered by an unlicensed practitioner on a case-by-case basis.

Removed March 11, 1999

Removed March 11, 1999 (Prohibited by statute effective February 11, 1992)

29.1 The aggregate award for funeral and burial shall not exceed $8,500.00 Aggregate Awards

29.1.1 The Board defines the maximum award. The amount shall not exceed $8500.

29.1.2 The Board has established further limitations on specific expenditures that when calculated shall be included in and not exceed the total aggregate. The permitted expenses are:

29.1.2.1 Funeral expense. This shall include flowers and cremation

29.1.2.2 Opening/closing of grave

29.1.2.3 Purchase of cemetery plot

29.1.2.4 Grave marker

29.1.2.5 Local transportation of remains

Note: Compensation shall only be awarded for one funeral service

29.1.3 Supplemental Awards (excluding the base aggregate of $8500)

29.1.3.1 Long distance transportation either via air or ground of the deceased to the final burial destination

29.1.3.2 Transportation of one accompanying member if required by laws of the country or entity of final destination

29.1.4 Exclusion

29.1.4.1 Excluding mental health counseling, reasonable expenses for secondary victims shall not be considered as part of the funeral and burial awards process.

29.2 Application Requirements

29.2.1 Claimant must meet the basic criteria and application standards defined by the Violent Crimes Compensation Board.

29.2.2 Supplemental, required documents shall also include:

29.2.2.1 A police report as completed by the investigating law enforcement agency

29.2.2.2 - A copy of the official death certificate

Note: Applicant shall when possible, solicit support in completing the VCCB application form from the law enforcement agency charged with investigating the crime.

29.3 Service Providers

29.3.1 The Board must receive specific information from all service providers to process claims. This shall include but not limited to:

29.3.1.1 A detailed list and expense breakdown of services provided. Those specifics must be recorded on documents or stationary bearing the name and all relevant contact information for said business.

29.3.1.2 All documents submitted in support of a claim, must reflect the name of the victim as recipient of the services. In addition, should the claim be filed on behalf of the deceased, the document must also reflect the name of the person actually filing the claim and who has assumed responsibility for that process.

29.4 Emergency Claims

29.4.1 The Board will make an emergency award only upon showing of dire necessity. The claimant, must, in writing request an emergency award when submitting their claims form and show just cause as to why an award should be considered. No such award will be made until the police report is acquired.

30.1 For the purposes of section 9020(c), up to $1,200.00 may be paid from the victim's compensation fund on behalf of each child victim of crime for reasonable costs incurred for psychological assessments and short-term counseling.