WEST virginia legislature
2017 regular session
Committee Substitute
for
House Bill 2447
By Mr. Speaker (Mr. Armstead) and Delegates, Shott, Summers, Overington, Foster, g., Hollen and Sobonya
[Introduced February 15, 2017; Referred to the Committee on the Judiciary.]
A BILL to repeal §14-2-6 and §14-2-18 of the Code of West Virginia, 1931, as amended; to repeal §14-2A-7 of said code; to amend and reenact §14-2-3, §14-2-4, §14-2-4a, §14-2-5, §14-2-7, §14-2-8, §14-2-9, §14-2-10, §14-2-11, §14-2-12, §14-2-13, §14-2-14, §14-2-15, §14-2-16, §14-2-17, §14-2-19, §14-2-20, §14-2-21, §14-2-22, §14-2-23, §14-2-24, §14-2-25, §14-2-26, §14-2-27 and §14-2-28 of said code; to amend said code by adding thereto a new section, designated §14-2-17a; and to amend and reenact §14-2A-5, §14-2A-6, §14-2A-9, §14-2A-10, §14-2A-11, §14-2A-12, §14-2A-13, §14-2A-14, §14-2A-15, §14-2A-16, §14-2A-17, 14-2A-18, §14-2A-19, §14-2A-19a, §14-2A-19b, §14-2A-20, §14-2A-21, §14-2A-25, §14-2A-26 and §14-2A-28 of said code, all relating to renaming the Court of Claims the state Claims Commission; renaming judges commissioners; modifying definitions; providing explicit powers of removal of commissioners; providing authority to the Joint Committee on Government and Finance for the hiring of a clerk, chief deputy clerk, and deputy clerks; and establishing a shortened procedure for certain road condition claims.
Be it enacted by the Legislature of West Virginia:
That §14-2-6 and §14-2-18 of the Code of West Virginia, 1931, as amended, be repealed; that §14-2A-7 of said code be repealed; that §14-2-3, §14-2-4, §14-2-4a, §14-2-5, §14-2-7, §14-2-8, §14-2-9, §14-2-10, §14-2-11, §14-2-12, §14-2-13, §14-2-14, §14-2-15, §14-2-16, §14-2-17, §14-2-19, §14-2-20, §14-2-21, §14-2-22, §14-2-23, §14-2-24, §14-2-25, §14-2-26, §14-2-27 and §14-2-28 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §14-2-17a; and that §14-2A-5, §14-2A-6, §14-2A-9, §14-2A-10, §14-2A-11, §14-2A-12, §14-2A-13, §14-2A-14, §14-2A-15, §14-2A-16, §14-2A-17, §14-2A-18, §14-2A-19, §14-2A-19a, §14-2A-19b, §14-2A-20, §14-2A-21, §14-2A-25, §14-2A-26 and §14-2A-28 of said code be amended and reenacted all to read as follows:
ARTICLE 2. CLAIMS AGAINST THE STATE.
§14-2-3. Definitions.
For the purpose of this article:
"Court" means
the state Court of Claims established by section four of this article.
“Commission” means the State Claims Commission established by section four of this article.
"Claim" means a
claim authorized to be heard by the court commission in
accordance with this article.
"Approved claim"
means a claim found by the court commission to be one that should
be paid under the provisions of this article.
"Award" means the
amount recommended by the court commission to be paid in
satisfaction of an approved claim.
"Clerk" means the
clerk of the Court of Claims State Claims Commission.
"State agency"
means a state department, board, commission, institution, or other
administrative agency of state government: Provided, That a "state
agency" shall not be considered to include county courts commissions,
county boards of education, municipalities, or any other political or local
subdivision of the state regardless of any state aid that might be provided.
§14-2-4. Creation of
Court of Claims Court of Claims to be continued and renamed the state
Claims Commission; appointment and terms of judges commissioners;
vacancies.
The "Court of
Claims" is hereby created renamed the State Claims Commission.
It shall consist of three judges commissioners, to be appointed
by the President of the Senate and the Speaker of the House of Delegates, by
and with the advice and consent of the Senate, one of whom shall be appointed
presiding judge commissioner. The judges of the Court of Claims will
continue their existing terms as commissioners. Each appointment to the court
commission shall be made from a list of three qualified nominees
furnished by the Board of Governors of the West Virginia State Bar. The
President of the Senate and the Speaker of the House of Delegates may jointly
terminate the appointment of any commissioner appointed under this section at
any time.
The terms of the judges
of this court commissioners shall be six years. except that the
first members of the court commission shall be appointed as follows: One judge
for two years, one judge for four years and one judge for six years. As these
appointments expire, all appointments shall be for six year terms Not more
than two of the judges commissioners shall be of the same
political party. An appointment to fill a vacancy shall be for the unexpired
term.
§14-2-4a. Interim judges
commissioners.
(a) If at any time two or
more of the judges commissioners appointed under section four of
this article are temporarily unable, due to illness or other incapacity, to
perform their responsibilities the President of the Senate and the Speaker of
the House of Delegates may appoint one or two interim judges commissioners
to serve under the conditions specified in this section.
(b) Appointments made under
this section are temporary. An interim judge commissioner serves
under this section until the judge commissioner for whom the
interim judge commissioner is temporarily replacing can resume
his or her duties. In no event may the interim judge commissioner
serve for more than three months unless reappointed.
(c) Appointments made under
this section shall be made from a list furnished to the President of the Senate
and the Speaker of the House of Delegates by the board of Governors of the West
Virginia State Bar. The board of Governors of the West Virginia State Bar shall
annually, on or before January 15, submit a list of twenty qualified nominees. In
two thousand four, the list shall be submitted before April 1
(d) An interim judge
commissioner:
(1) Is entitled to the same
compensation and expense reimbursement a judge commissioner is
entitled to under the provisions of section eight of this article;
(2) Shall take the oath of office as required in section nine of this article;
(3) Has all the authority
given to a judge commissioner under this article; and
(4) Is required to possess
the qualifications required of a judge commissioner in section
ten of this article.
(e) The President of the
Senate and the Speaker of the House of Delegates may jointly terminate the
appointment of any interim judge commissioner appointed under
this section at any time.
§14-2-5. Court Commission
clerk and other personnel.
The court The Joint Committee on Government and Finance
may appoint a clerk, chief deputy clerk and deputy clerks. The salaries of the
clerk, the chief deputy clerk and the deputy clerks shall be fixed by the Joint
Committee on Government and Finance, and shall be paid out of the regular
appropriation for the court commission. The clerk shall have
custody of and maintain all records and proceedings of the court commission,
shall attend meetings and hearings of the court commission, shall
administer oaths and affirmations and shall issue all official summonses,
subpoenas, orders, statements and awards. The chief deputy clerk or another
deputy clerk shall act in the place and stead of the clerk in the clerk's
absence.
The Joint Committee on
Government and Finance may employ other persons whose services are necessary to
the orderly transaction of the business of the court commission
and fix their compensation.
§14-2-6. Terms of court.
The court shall hold at least two regular terms each
year, on the second Monday in April and September. So far as possible, the
court shall not adjourn a regular term until all claims then upon its docket
and ready for hearing or other consideration have been disposed of.
Special terms or meetings may be called by the clerk at
the request of the court whenever the number of claims awaiting consideration,
or any other pressing matter of official business, make such a term advisable.
§14-2-7. Meeting place
of the court commission.
The regular meeting place of
the court commission shall be at the State Capitol, and the Joint
Committee on Government and Finance shall provide adequate quarters therefor. When
deemed advisable, I In order to facilitate the full hearing of claims
arising elsewhere in the state, the court commission may convene
at any county seat or other location in the state, including a correctional
institution: Provided, That the court commission will make
reasonable efforts to meet in appropriate public or private buildings in
keeping with the dignity and decorum of the state.
§14-2-8. Compensation of
judges commissioners; expenses.
Each judge of the court
commissioner shall receive $210 for each day actually served and
expenses incurred in the performance of his or her duties paid at the same per
diem rate as members of the Legislature: Provided, That the chief
judge presiding commissioner shall receive an additional $50 for
each day actually served. In addition to the expense per diem, each commissioner
may, when using his or her own vehicle, be reimbursed for mileage. at the
mileage rate equal to the amount paid by the travel management office of the
Department of Administration The number of days served by each judge
commissioner shall not exceed one hundred twenty in any fiscal year,
except by authority of the Joint Committee on Government and Finance: Provided,
That in computing the number of days served, days utilized solely for the
exercise of duties assigned to judges and commissioners by this
article and the provisions of article two-a of this chapter shall be
disregarded. For the purpose of this section, time served shall include time
spent in the hearing of claims, in the consideration of the record, in the
preparation of opinions and in necessary travel.
§14-2-9. Oath of office.
Each judge commissioner
shall before entering upon the duties of his or her office, take and
subscribe to the oath prescribed by section 5, article IV of the Constitution
of the State. The oath shall be filed with the clerk.
§14-2-10. Qualifications
of judges commissioners.
Each judge commissioner
appointed to the Court of Claims State Claims Commission shall be
an attorney at law, licensed to practice in this state, and shall have been so
licensed to practice law for a period of not less than ten years prior to his or
her appointment as judge commissioner. A judge commissioner
shall not be an officer or an employee of any branch of state government,
except in his or her capacity as a member of the court commission
and shall receive no other compensation from the state or any of its political
subdivisions. A judge commissioner shall not hear or participate
in the consideration of any claim in which he or she is interested
personally, either directly or indirectly.
§14-2-11. Attorney general to represent state.
The Attorney General shall
represent the interests of the state in all claims coming before the court
commission.
§14-2-12. General powers
of the court commission.
The court commission
shall, in accordance with this article, consider claims which, but for the
Constitutional immunity of the state from suit, or for some statutory
restrictions, inhibitions or limitations, could be maintained in the regular
courts of the state. No liability shall be imposed upon the state or any state
agency by a determination of the Court of Claims commission
approving a claim and recommending an award, unless the claim is; (1) Made
under an existing appropriation, in accordance with section nineteen of this
article; or (2) a claim under a special appropriation, as provided in section
twenty of this article. The court commission shall consider
claims in accordance with the provisions of this article.
Except as is otherwise provided
in this article, a claim shall be instituted by the filing of notice with the
clerk. In accordance with rules promulgated by the court commission,
each claim shall be considered by the court commission as a
whole, or by a judge commissioner sitting individually, and if,
after consideration, the court commission finds that a claim is
just and proper, it shall so determine and shall file with the clerk a brief
statement of its reasons. A claim so filed shall be an approved claim. The court
commission shall also determine the amount that should be paid to the
claimant, and shall itemize this amount as an award, with the reasons therefor,
in its statement filed with the clerk. In determining the amount of a claim,
interest shall not be allowed unless the claim is based upon a contract which
specifically provides for the payment of interest.
§14-2-13. Jurisdiction
of the court commission.
The jurisdiction of the court
commission, except for the claims excluded by section fourteen, shall
extend to the following matters:
(1) Claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state or any of its agencies, which the state as a sovereign commonwealth should in equity and good conscience discharge and pay; and
(2) Claims and demands, liquidated and unliquidated, ex contractu and ex delicto, which may be asserted in the nature of set-off or counterclaim on the part of the state or any state agency.
§14-2-14. Claims excluded.
The jurisdiction of the court
commission shall not extend to any claim:
1. For loss, damage, or destruction of property or for injury or death incurred by a member of the militia or National Guard when in the service of the state.
2. For a disability or death benefit under chapter twenty-three of this code.
3. For unemployment compensation under chapter twenty-one-a of this code.
4. For relief or public assistance under chapter nine of this code.
5. With respect to which a proceeding may be maintained against the state, by or on behalf of the claimant in the courts of the state.
§14-2-15. Rules of practice and procedure.
The court commission
shall adopt and may from time to time amend rules of procedure, in accordance
with the provisions of this article, governing proceedings before the court
commission. Rules shall be designed to assure a simple, expeditious and
inexpensive consideration of claims. Rules shall permit a claimant to appear in
his or her own behalf or be represented by counsel.
Discovery may be used in a
case pending before the court commission in the same manner that
discovery is conducted pursuant to the rules of civil procedure for trial
courts of record, rules 26 through 36. The court commission may
compel discovery and impose sanctions for a failure to make discovery, in the
same manner as a court is authorized to do under the provisions of rule 37 of
the rules of civil procedure for trial courts of record: Provided, That
the Court of Claims commission shall not find a person in
contempt for failure to comply with an order compelling discovery.
The court commission,
upon its own motion or upon motion of a party, may strike a pleading, motion or
other paper which: (1) Is not well-grounded in fact; (2) is not warranted by
existing law, or is not based on a good faith argument for the extension,
modification, or reversal of existing law; or (3) is interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in costs. An order striking a pleading, motion, or paper may include
an order to pay to the other party or parties the amount of the reasonable
expenses incurred because of the filing of the pleading, motion, or other
paper, including a reasonable attorney's fee.
Under its rules, the court
commission shall not be bound by the usual common law or statutory rules
of evidence. The court commission may accept and weigh, in
accordance with its evidential value, any information that will assist the court
commission in determining the factual basis of a claim.
§14-2-16. Regular procedure.
The regular procedure for the consideration of claims shall be substantially as follows:
(1) The claimant shall give notice to the clerk that he or she desires to maintain a claim. Notice shall be in writing and shall be in sufficient detail to identify the claimant, the circumstances giving rise to the claim, and the state agency concerned, if any. The claimant shall not otherwise be held to any formal requirement of notice.
(2) The clerk shall
transmit a copy of the notice to the state agency concerned. The state agency
may deny the claim, or may request a postponement of proceedings to permit
negotiations with the claimant. If the court commission finds
that a claim is prima facie within its jurisdiction, it shall order the claim
to be placed upon its regular docket for hearing.
(3) During the period of negotiations and pending hearing, the state agency, represented by the Attorney General, shall, if possible, reach an agreement with the claimant regarding the facts upon which the claim is based so as to avoid the necessity for the introduction of evidence at the hearing. If the parties are unable to agree upon the facts an attempt shall be made to stipulate the questions of fact in issue.
(4) The court commission
shall so conduct the hearing as to disclose all material facts and issues of
liability and may examine or cross-examine witnesses. The court commission
may call witnesses or require evidence not produced by the parties; the court
commission may call expert witnesses and compensate those experts for
their services in an amount not to exceed $3,500 per expert; the court commission
may stipulate the questions to be argued by the parties; and the court commission
may continue the hearing until some subsequent time to permit a more complete
presentation of the claim.
(5) After the close of the
hearing the court commission shall consider the claim and shall
conclude its determination, if possible, within sixty days.
§14-2-17. Shortened procedure.
The shortened procedure authorized by this section shall apply only to a claim possessing all of the following characteristics:
1. The claim does not arise under an appropriation for the current fiscal year.
2. The state agency concerned concurs in the claim.
3. The amount claimed does not exceed $3,000.
4. The claim has been approved by the Attorney General as one that, in view of the purposes of this article, should be paid.
The state agency concerned
shall prepare the record of the claim consisting of all papers, stipulations
and evidential documents required by the rules of the court commission
and file the same with the clerk. The court commission shall
consider the claim informally upon the record submitted. If the court commission
determines that the claim should be entered as an approved claim and an award
made, it shall so order and shall file its statement with the clerk. If the court
commission finds that the record is inadequate, or that the claim should
not be paid, it shall reject the claim. The rejection of a claim under this
section shall not bar its resubmission under the regular procedure.
§14-2-17a. Shortened procedure for road condition claims.
Notwithstanding the regular and shortened procedures provided for in sections sixteen and seventeen of this article, there shall be a shortened procedure for road condition claims. The shortened procedure authorized by this section shall apply only to a claim possessing all of the following characteristics:
(1) The claim does not arise under an appropriation for the current fiscal year.
(2) The claim alleges that a condition on the state’s highways or roads caused property damage.
(3) The Division of Highways concurs in the claim.
(4) The amount claimed does not exceed $1,000.
The Division of Highways shall prepare a stipulation concerning the claim and file it with the clerk. The commission shall order the claim approved and shall file its statement with the clerk.
§14-2-18. Advisory determination procedure.
The Governor or the head of a state agency may refer to
the court for an advisory determination the question of the legal or equitable
status, or both, of a claim against the state or a state agency. This procedure
shall apply only to such claims as are within the jurisdiction of the court.
The procedure shall be substantially as follows:
1. There shall be filed with the clerk the record of
the claim, including a full statement of the facts, the contentions of the
claimant and such other materials as the rules of the court may require. The
record shall submit specific questions for the court's consideration.
2. The clerk shall examine the record submitted. If he
or she finds that it is adequate under the rules, he or she shall give a copy
of all materials submitted to the Joint Committee on Government and Finance. If
the Joint Committee on Government and Finance shall so direct, the clerk shall
place the claim on a special docket. If the clerk finds the record inadequate,
he or she shall refer it back to the officer submitting it with the request
that the necessary additions or changes be made.
3. When a claim is reached on the special docket, the
court shall prepare a brief opinion for the information and guidance of the
officer. The claim shall be considered informally and without hearing. A
claimant shall not be entitled to appear in connection with the consideration
of the claim.
4. The opinion shall be filed with the clerk. A copy
shall be transmitted to the officer who referred the claim.
An advisory determination shall not bar the subsequent
consideration of the same claim if properly submitted by, or on behalf of, the
claimant. Such subsequent consideration, if undertaken, shall be de novo.
§14-2-19. Claims under existing appropriations.
A claim arising under an
appropriation made by the Legislature during the fiscal year to which the
appropriation applies, and falling within the jurisdiction of the court commission,
may be submitted by:
1. A claimant whose claim has been rejected by the state agency concerned or by the State Auditor.
2. The head of the state agency concerned in order to obtain a determination of the matters in issue.
3. The State Auditor in order to obtain a full hearing and consideration of the merits.
When such submittal is
made, the clerk shall give a copy of the submittal to the Joint Committee on
Government and Finance. If the Joint Committee on Government and Finance shall
so direct, the clerk shall place such claim on its docket. Upon its placement
on the docket, the regular procedure, so far as applicable, shall govern the
consideration of the claim by the court commission. If the court commission finds that the
claimant should be paid, it shall certify the approved claim and award to the
head of the appropriate state agency, the State Auditor and to the Governor.
The Governor may thereupon instruct the Auditor to issue his or her warrant in
payment of the award and to charge the amount thereof to the proper
appropriation. The Auditor shall forthwith notify the state agency that the
claim has been paid. Such an expenditure shall not be subject to further review
by the Auditor upon any matter determined and certified by the court commission.
§14-2-20. Claims under special appropriations.
Whenever the Legislature makes an appropriation for the payment of claims against the state, then accrued or arising during the ensuing fiscal year, the determination of claims and the payment thereof may be made in accordance with this section. However, this section shall apply only if the Legislature in making its appropriation specifically so provides and only after specific direction to hear the claim is given by the Joint Committee on Government and Finance.
The claim shall be
considered and determined by the regular or shortened procedure, as the case
may be, and the amount of the award shall be fixed by the court commission.
The clerk shall certify each approved claim and award, and requisition relating
thereto, to the Auditor. The Auditor thereupon shall issue his or her warrant
to the Treasurer in favor of the claimant. The Auditor shall issue his or her
warrant without further examination or review of the claim except for the
question of a sufficient unexpended balance in the appropriation.
§14-2-21. Periods of limitation made applicable.
The court commission
shall not take jurisdiction of any claim, whether accruing before or after the
effective date of this article (July 1, 1967), unless notice of such claim be
filed with the clerk within such period of limitation as would be applicable
under the pertinent provisions of the Code of West Virginia, 1931, as amended,
if the claim were against a private person, firm or corporation and the
Constitutional immunity of the state from suit were not involved and such
period of limitation may not be waived or extended. The foregoing provision
shall not be held to limit or restrict the right of any person, firm or
corporation who or which had a claim against the state or any state agency,
pending before the Attorney General on the effective date of this article (July
1, 1967), from presenting such claim to the Court of Claims, nor shall it limit
or restrict the right to file such a claim which was, on the effective date of
this article (July 1, 1967), pending in any court of record as a legal claim
and which, after such date was or may be adjudicated in such court to be
invalid as a claim against the state because of the Constitutional immunity of
the state from suit.
§14-2-22. Compulsory process.
In all hearings and
proceedings before the court commission, the evidence and
testimony of witnesses and the production of documentary evidence may be
required. Subpoenas may be issued by the court commission for
appearance at any designated place of hearing. In case of disobedience to a
subpoena or other process, the court commission may invoke the
aid of any circuit court in requiring the evidence and testimony of witnesses,
and the production of books, papers and documents. Upon proper showing, the
circuit court shall issue an order requiring witnesses to appear before the Court
of Claims State Claims Commission; produce books, papers and other
evidence; and give testimony touching the matter in question. A person failing
to obey the order may be punished by the circuit court as for contempt.
§14-2-23. Inclusion of awards in budget.
The clerk shall certify to
the department of finance and administration, on or before November 20, of each
year, a list of all awards recommended by the court commission to
the Legislature for appropriation. The clerk may certify supplementary lists to
the Governor to include subsequent awards made by the court commission.
The Governor shall include all awards so certified in his or her
proposed budget bill transmitted to the Legislature. Any other provision of
this article or of law to the contrary notwithstanding, the clerk shall not
certify any award which has been previously certified.
§14-2-24. Records to be preserved.
The record of each claim
considered by the court commission, including all documents, papers,
briefs, transcripts of testimony and other materials, shall be preserved by the
clerk for a period of ten years from the date of entry of the court’s commission’s
last order and shall be made available to the Legislature or any committee
thereof for the reexamination of the claim. When any such documents, papers,
briefs, transcripts and other materials have been so preserved by the clerk for
such ten-year period, the same shall be transferred to the state records
administrator for preservation or disposition in accordance with the provisions
of article eight, chapter five of this code without cost, either to the court
commission or the Legislature.
§14-2-25. Reports of the court.
The clerk shall be the
official reporter of the court commission. He or she shall
collect and edit the approved claims, awards and statements, shall prepare them
for submission to the Legislature in the form of an annual report and shall
prepare them for publication.
Claims and awards shall be separately classified as follows:
(1) Approved claims and awards not satisfied but referred to the Legislature for final consideration and appropriation.
(2) Approved claims and awards satisfied by payments out of regular appropriations.
(3) Approved claims and awards satisfied by payment out of a special appropriation made by the Legislature to pay claims arising during the fiscal year.
(4) Claims rejected by the court
commission with the reasons therefor.
The court commission
may include any other information or recommendations pertaining to the
performance of its duties.
The court commission
shall transmit its annual report to the presiding officer of each house of the
Legislature, and a copy shall be made available to any member of the
Legislature upon request therefor. The reports of the court commission
shall be published biennially by the clerk as a public document. The biennial
report shall be filed with the clerk of each house of the Legislature, the
Governor and the Attorney General.
§14-2-26. Fraudulent claims.
A person who knowingly and
willfully presents or attempts to present a false or fraudulent claim, or a
state officer or employee who knowingly and willfully participates or assists
in the preparation or presentation of a false or fraudulent claim, shall be
guilty of a misdemeanor. A person convicted, in a court of competent
jurisdiction, of violation of this section shall be fined not more than $1,000
or imprisoned for not more than one year, or both, in the discretion of such court
commission. If the convicted person is a state officer or employee, he or
she shall, in addition, forfeit his or her office or position of
employment, as the case may be.
§14-2-27. Conclusiveness of determination.
Any final determination
against the claimant on any claim presented as provided in this article shall
forever bar any further claim in the court commission arising out
of the rejected claim
§14-2-28. Award as condition precedent to appropriation.
(a) It is the policy of the
Legislature to make no appropriation to pay any claims against the state,
cognizable by the court commission, unless the claim has first
been passed upon by the court commission.
(b) Because a decision of
the court commission is a recommendation to the Legislature based
upon a finding of moral obligation, and the enactment process of passage of
legislation authorizing payments of claims recommended by the court commission
is at legislative discretion, no right of appeal exists to findings and award
recommendations of the Court of Claims State Claims Commission
and they are not subject to judicial review.
article 2a. compensation awards to victims of crimes.
§14-2A-5. Jurisdiction.
Any judge commissioner
of the Court of Claims State Claims Commission individually, or
the Court of Claims State Claims Commission en banc, or any
Court of Claims commissioner appointed pursuant to section six of this article,
shall have jurisdiction to approve awards of compensation arising from
criminally injurious conduct, in accordance with the provisions of this
article, if satisfied by a preponderance of the evidence that the requirements
for an award of compensation have been met.
§14-2A-6. Appointment
and Compensation of commissioners and judges serving under this
article.
(a) The Court of Claims
with the approval of the President of the Senate and the Speaker of the House
of Delegates, may appoint Court of Claims commissioners to hear claims for
awards of compensation and to approve awards of compensation pursuant to the
provisions of this article. Each commissioner shall serve at the pleasure of
the Court of Claims and under the supervision of the judges of the Court of
Claims.
(b) The Court of Claims
shall fix the compensation of the Court of Claims commissioners in an amount
not exceeding the compensation for judges of the Court of Claims Compensation of judges and commissioners for
services performed under this article, and actual expenses incurred in the
performance of duties as judges and commissioners under this article,
shall be paid out of the crime victims compensation fund.
(c) The limitation
period of one hundred days in section eight, article two of this chapter
pertaining to time served by the judges of the Court of Claims shall not apply
to the provisions of this article.
§14-2A-7. Qualifications of commissioners.
Each commissioner appointed by the Court of Claims
shall be an attorney-at-law, licensed to practice in this state, and shall have
been so licensed to practice law for a period of not less than three years
prior to his or her appointment as commissioner. A commissioner shall
not be an officer or an employee of any branch of state government, except in his
or her capacity as commissioner of the court. A commissioner shall not
hear or participate in the consideration of any claim in which he or she
is interested personally, either directly or indirectly. When practicable, the
commissioners should be selected from different congressional districts and be
geographically located, with reference to their counties of residence, to
facilitate the appearance of claimants and witnesses at hearings held pursuant
to this article.
§14-2A-9. Claim investigators; compensation and expenses; paralegals and support staff.
The Court of Claims State
Claims Commission, with the approval of the Joint Committee on Government and
Finance, is hereby authorized to hire not more than four claim
investigators to be employed within the Office of the clerk of the State
Claims Commission, who shall carry out the functions and duties set forth
in section twelve of this article. Claim investigators shall serve at the
pleasure of the Court of Claims Joint Committee on Government and
Finance and under the administrative supervision of the Clerk of the Court
of Claims. The compensation of claim investigators shall be fixed by the court
Joint Committee on Government and Finance, and such compensation,
together with travel, clerical and other expenses of the Clerk of the Court
of Claims State Claims Commission relating to a claim investigator
carrying out his or her duties under this article, including the cost of
obtaining reports required by the investigator in investigating a claim, shall
be payable from the crime victims compensation fund as appropriated for such
purpose by the Legislature.
The Court of Claims State
Claims Commission, with the approval of the Joint Committee on Government and
Finance, is hereby authorized to hire as support staff such paralegal or
paralegals and secretary or secretaries to be employed within the Office of
the Clerk of the Court of Claims State Claims Commission, necessary
to carry out the functions and duties of this article. Such support staff shall
serve at the will and pleasure of the Court of Claims State Claims
Commission and under the administrative supervision of the Clerk of the Court
of Claims State Claims Commission.
§14-2A-10. Filing of application for compensation award; contents.
(a) A claim for an award of
compensation shall be commenced by filing an application for an award of
compensation with the clerk of the Court of Claims State Claims
Commission. The application shall be in a form prescribed by the clerk of
the Court of Claims State Claims Commission and shall contain the
information specified in subdivisions (1) through (6) of this subsection and,
to the extent possible, the information in subdivisions (7) through (10) of
this subsection:
(1) The name and address of the victim of the criminally injurious conduct, the name and address of the claimant and the relationship of the claimant to the victim;
(2) The nature of the criminally injurious conduct that is the basis for the claim and the date on which the conduct occurred;
(3) The law-enforcement agency or officer to whom the criminally injurious conduct was reported and the date on which it was reported;
(4) Whether the claimant is the spouse, parent, child, brother or sister of the offender, or is similarly related to an accomplice of the offender who committed the criminally injurious conduct;
(5) A release authorizing
the Court of Claims, the Court of Claims commissioners State Claims
Commission and the claim investigator to obtain any report, document or
information that relates to the determination of the claim for an award of
compensation;
(6) If the victim is deceased, the name and address of each dependent of the victim and the extent to which each is dependent upon the victim for care and support;
(7) The nature and extent of the injuries that the victim sustained from the criminally injurious conduct for which compensation is sought, the name and address of any person who gave medical treatment to the victim for the injuries, the name and address of any hospital or similar institution where the victim received medical treatment for the injuries, and whether the victim died as a result of the injuries;
(8) The total amount of the economic loss that the victim, a dependent or the claimant sustained or will sustain as a result of the criminally injurious conduct, without regard to the financial limitation set forth in subsection (g), section fourteen of this article;
(9) The amount of benefits or advantages that the victim, a dependent or other claimant has received or is entitled to receive from any collateral source for economic loss that resulted from the criminally injurious conduct, and the name of each collateral source;
(10) Any additional
relevant information that the Court of Claims State Claims Commission
may require. The Court of Claims State Claims Commission may
require the claimant to submit, with the application, materials to substantiate
the facts that are stated in the application.
(b) All applications for an
award of compensation shall be filed within two years after the occurrence of
the criminally injurious conduct that is the basis of the application. Any
application so filed which contains the information specified in subdivisions
(1) through (6), subsection (a) of this section may not be excluded from
consideration on the basis of incomplete information specified in subdivisions
(7) through (10) of said subsection if such information is completed after
reasonable assistance in the completion thereof is provided under procedures
established by the Court of Claims State Claims Commission.
(c) A person who knowingly and willfully presents or attempts to present a false or fraudulent application, or who knowingly and willfully participates, or assists in the preparation or presentation of a false or fraudulent application, shall be guilty of a misdemeanor. A person convicted, in a court of competent jurisdiction, of a violation of this section shall be fined not more than $1,000 or imprisoned for not more than one year, or both, in the discretion of such court. If the convicted person is a state officer or employee, he or she shall, in addition, forfeit his or her office or position of employment, as the case may be.
§14-2A-11. Procedure for filing of application.
The clerk of the Court
of Claims State Claims Commission shall establish a procedure for
the filing, recording and processing of applications for an award of
compensation.
§14-2A-12. Investigation and recommendations by claim investigator.
(a) The clerk of the Court
of Claims State Claims Commission shall transmit a copy of the
application to the claim investigator within seven days after the filing of the
application.
(b) The claim investigator,
upon receipt of an application for an award of compensation from the clerk of
the Court of Claims State Claims Commission, shall investigate
the claim. After completing the investigation, the claim investigator shall
make a written finding of fact and recommendation concerning an award of
compensation. He or she shall file with the clerk the finding of fact and
recommendation and all information or documents that he or she used in his or
her investigation: Provided, That the claim investigator shall not file
information or documents which have been the subject of a protective order
entered under the provisions of subsection (c) of this section.
(c) The claim investigator, while investigating the claim, may require the claimant to supplement the application for an award of compensation with any further information or documentary materials, including any medical report readily available, which may lead to any relevant facts aiding in the determination of whether, and the extent to which, a claimant qualifies for an award of compensation.
The claim investigator, while investigating the claim, may also require law-enforcement officers and prosecuting attorneys employed by the state or any political subdivision thereof, to provide him or her with reports, information, witness statements or other data gathered in the investigation of the criminally injurious conduct that is the basis of any claim to enable him or her to determine whether, and the extent to which, a claimant qualifies for an award of compensation. The prosecuting attorney and any officer or employee of the prosecuting attorney or of the law-enforcement agency shall be immune from any civil liability that might otherwise be incurred as the result of providing such reports, information, witness statements or other data relating to the criminally injurious conduct to the claim investigator.
The claim investigator, while investigating the claim, may obtain autopsy reports including results from the Office of the state Medical Examiner to be used solely for determining eligibility for compensation awards.
Upon motion of any party, court or agency from whom such reports, information, witness statements or other data is sought, and for good cause shown, the court may make any order which justice requires to protect a witness or other person, including, but not limited to, the following: (1) That the reports, information, witness statements or other data not be made available; (2) that the reports, information, witness statements or other data may be made available only on specified terms and conditions, including a designation of time and place; (3) that the reports, information, witness statements or other data be made available only by a different method than that selected by the claim investigator; (4) that certain matters not be inquired into, or that the scope of the claim investigator's request be limited to certain matters; (5) that the reports, information, witness statements or other data be examined only by certain persons designated by the court; (6) that the reports, information, witness statements or other data, after being sealed, be opened only by order of the court; and (7) that confidential information or the identity of confidential witnesses or informers not be disclosed, or disclosed only in a designated manner.
However, in any case
wherein the claim investigator has reason to believe that his or her
investigation may interfere with or jeopardize the investigation of a crime by
law-enforcement officers, or the prosecution of a case by prosecuting
attorneys, he or she shall apply to the Court of Claims State Claims
Commission, or a judge commissioner thereof, for an order
granting leave to discontinue his or her investigation for a reasonable time in
order to avoid such interference or jeopardization. When it appears to the
satisfaction of the court commission, or judge
commissioner, upon application by the claim investigator or in its own
discretion, that the investigation of a case by the claim investigator will
interfere with or jeopardize the investigation or prosecution of a crime, the court
commission, or judge commissioner, shall issue an order
granting the claim investigator leave to discontinue his or her investigation
for such time as the court commission, or judge commissioner,
deems reasonable to avoid such interference or jeopardization.
(d) The finding of fact that is issued by the claim investigator pursuant to subsection (b) of this section shall contain the following:
(1) Whether the criminally injurious conduct that is the basis for the application did occur, the date on which the conduct occurred and the exact nature of the conduct;
(2) If the criminally injurious conduct was reported to a law-enforcement officer or agency, the date on which the conduct was reported and the name of the person who reported the conduct; or the reasons why the conduct was not reported to a law-enforcement officer or agency; or the reasons why the conduct was not reported to a law-enforcement officer or agency within seventy-two hours after the conduct occurred;
(3) The exact nature of the injuries that the victim sustained as a result of the criminally injurious conduct;
(4) If the claim investigator is recommending that an award be made, a specific itemization of the economic loss that was sustained by the victim, the claimant or a dependent as a result of the criminally injurious conduct;
(5) If the claim investigator is recommending that an award be made, a specific itemization of any benefits or advantages that the victim, the claimant or a dependent has received or is entitled to receive from any collateral source for economic loss that resulted from the conduct;
(6) Whether the claimant is the spouse, parent, child, brother or sister of the offender, or is similarly related to an accomplice of the offender who committed the criminally injurious conduct;
(7) Any information which might be a basis for a reasonable reduction or denial of a claim because of contributory misconduct of the claimant or of a victim through whom he or she claims;
(8) Any additional information that the claim investigator deems to be relevant to the evaluation of the claim.
(e) The recommendation that is issued by the claim investigator pursuant to subsection (b) of this section shall contain the following:
(1) Whether an award of compensation should be made to the claimant and the amount of the award;
(2) If the claim investigator recommends that an award not be made to the claimant, the reason for his or her decision.
(f) The claim investigator
shall file his or her finding of fact and recommendation with the clerk within
six months after the filing of the application: Provided, That where
there is active criminal investigation or prosecution of the person or persons
alleged to have committed the criminally injurious conduct which is the basis
for the claimant's claim, the claim investigator shall file his or her finding
of fact and recommendation within six months after the first of any final
convictions or other final determinations as to innocence or guilt, or any
other final disposition of criminal proceedings. In any case, an additional
time period may be provided by order of any Court of Claims judge or
commissioner upon good cause shown.
§14-2A-13. Notice to
claimant of claim investigator's recommendation; evaluation of claim by judge
or commissioner.
(a) The clerk of the Court
of Claims State Claims Commission, upon receipt of the claim
investigator's finding of fact and recommendation, shall forward a copy of the
finding of fact and recommendation to the claimant with a notice informing the
claimant that any response, in the form of objections or comments directed to
the finding of fact and recommendation, must be filed with the clerk within
thirty days of the date of the notice. After the expiration of such thirty-day
period, the clerk shall assign the claim to a judge or commissioner.
of the court.
(b) The judge or
commissioner to whom the claim is assigned shall review the finding of fact and
recommendation and any response submitted by the claimant and, if deemed
appropriate, may request the claim investigator to comment in writing on the
claimant's response. The judge or commissioner shall, within forty-five
days after assignment by the clerk, evaluate the claim without a hearing and
either deny the claim or approve an award of compensation to the claimant.
§14-2A-14. Grounds for denial of claim or reduction of awards; maximum awards.
(a) Except as provided in
subsection (b), section ten of this article, the judge or commissioner
may not approve an award of compensation to a claimant who did not file his or
her application for an award of compensation within two years after the date of
the occurrence of the criminally injurious conduct that caused the injury or
death for which he or she is seeking an award of compensation.
(b) The judge or
commissioner may not approve an award of compensation if the criminally
injurious conduct upon which the claim is based was not reported to a
law-enforcement officer or agency or, in the case of sexual offense, the
claimant did not undergo a forensic medical examination, within ninety-six
hours after the occurrence of the conduct, unless it is determined that good
cause existed for the failure to report the conduct or undergo a forensic
medical examination within the 96-hour period: Provided, That no
reporting to a law-enforcement officer or agency or a forensic medical
examination is required if the claimant is a juvenile in order for a judge
or commissioner to approve an award of compensation.
(c) The judge or commissioner
may not approve an award of compensation to a claimant who is the offender or
an accomplice of the offender who committed the criminally injurious conduct,
nor to any claimant if the award would unjustly benefit the offender or his or
her accomplice.
(d) A judge or
commissioner, upon a finding that the claimant or victim has not fully
cooperated with appropriate law-enforcement agencies or the claim investigator,
may deny a claim, reduce an award of compensation or reconsider a claim already
approved.
(e) A judge or
commissioner may not approve an award of compensation if the injury occurred
while the victim was confined in any state, county or regional jail, prison,
private prison or correctional facility.
(f) After reaching a
decision to approve an award of compensation, but prior to announcing the
approval, the judge or commissioner shall require the claimant to submit
current information as to collateral sources on forms prescribed by the Clerk
of the Court of Claims State Claims Commission. The judge or
commissioner shall reduce an award of compensation or deny a claim for an award
of compensation that is otherwise payable to a claimant to the extent that the
economic loss upon which the claim is based is or will be recouped from other
persons, including collateral sources, or if the reduction or denial is
determined to be reasonable because of the contributory misconduct of the
claimant or of a victim through whom he or she claims. If an award is reduced
or a claim is denied because of the expected recoupment of all or part of the
economic loss of the claimant from a collateral source, the amount of the award
or the denial of the claim shall be conditioned upon the claimant's economic
loss being recouped by the collateral source: Provided, That if it is
thereafter determined that the claimant will not receive all or part of the
expected recoupment, the claim shall be reopened and an award shall be approved
in an amount equal to the amount of expected recoupment that it is determined
the claimant will not receive from the collateral source, subject to the
limitation set forth in subsection (g) of this section.
(g) (1) Except in the case of death, or as provided in subdivision (2) of this subsection, compensation payable to a victim and to all other claimants sustaining economic loss because of injury to that victim may not exceed $35,000 in the aggregate. Compensation payable to all claimants because of the death of the victim may not exceed $50,000 in the aggregate.
(2) In the event the victim's personal injuries are so severe as to leave the victim with a disability, as defined in Section 223 of the Social Security Act, as amended, as codified in 42 U. S. C. §423, the court may award an additional amount, not to exceed $100,000, for special needs attributable to the injury.
(h) If an award of compensation of $5,000 or more is made to a minor, a guardian shall be appointed pursuant to the provisions of article ten, chapter forty-four of this code to manage the minor's estate.
§14-2A-15. Hearings.
(a) If either the claim
investigator or the claimant disagrees with the approval of an award or the
denial of a claim in the summary manner set forth in the preceding sections of
this article, the claim investigator or the claimant, or both, shall file with
the clerk a request for hearing. Such request shall be filed within twenty-one
days after notification by the judge or commissioner of his or her
decision.
(b) Upon receipt of a
request for hearing, the clerk shall place the claim upon the regular docket
of the court set a date and time for hearing, shall advise the
Attorney General and the claimant of the receipt of the request and docketing
of the claim, and shall request the Attorney General to commence negotiations
with the claimant.
(c) During the period of negotiations and pending hearing, the Attorney General, shall, if possible, reach an agreement with the claimant regarding the facts upon which the claim is based so as to avoid the necessity for the introduction of evidence at the hearing. If the parties are unable to agree upon the facts, an attempt shall be made to stipulate the questions of fact in issue.
(d) The hearing held in
accordance with this section shall be before a single judge or
commissioner to whom the claim has not been previously assigned. Hearings
before a judge or commissioner may, in the discretion of such hearing
officer, be held at such locations throughout the state as will facilitate the
appearance of the claimant and witnesses.
(e) The hearing shall be
conducted so as to disclose all material facts and issues. The judge or
commissioner may examine or cross-examine witnesses. The judge and
commissioner may call witnesses or require evidence not produced by the
parties; may stipulate the questions to be argued by the parties; and may
continue the hearing until some subsequent time to permit a more complete
presentation of the claim.
(f) After the close of the
hearing the judge or commissioner shall consider the claim and shall
conclude his or her determination, if possible, within thirty days.
(g) The court commission
shall adopt and may from time to time amend rules of procedure to govern
proceedings before the court commission in accordance with the
provisions of this article. The rules shall be designed to assure a simple,
expeditious and inexpensive consideration of claims. The rules shall permit a
claimant to appear in his or her own behalf or be represented by counsel
and provide for interests of the state to be represented by the Attorney
General in any hearing under this section at no additional cost to the fund or
the state.
Under its rules, the court
commission shall not be bound by the usual common law or statutory rules
of evidence. The court commission may accept and weigh, in
accordance with its evidential value, any information that will assist the court
commission in determining the factual basis of a claim.
§14-2A-16. Evidence.
(a) There is no privilege, except the privilege arising from the attorney-client relationship, as to communications or records that are relevant to the physical, mental or emotional condition of the claimant or victim in a proceeding under this article in which that condition is an element.
(b) If the mental, physical
or emotional condition of a victim or claimant is material to a claim for an
award of compensation, the court, judge commission or a
commissioner may order the victim or claimant to submit to a mental or physical
examination by a physician or psychologist, and may order an autopsy of a
deceased victim. The order may be made for good cause shown and upon notice to
the person to be examined and to the claimant and the claim investigator. The
order shall specify the time, place, manner, conditions and scope of the
examination or autopsy and the person by whom it is to be made, and shall
require the person who performs the examination or autopsy to file with the
clerk of the Court of Claims State Claims Commission a detailed
written report of the examination or autopsy. The report shall set out the
findings, including the results of all tests made, diagnosis, prognosis and
other conclusions and reports of earlier examinations of the same conditions.
On request of the person examined, the clerk of the Court of Claims State
Claims Commission shall furnish him or her a copy of the report. If
the victim is deceased, the clerk of the Court of Claims State Claims
Commission, on request, shall furnish the claimant a copy of the report.
(c) The court, or a
judge commission, or a commissioner thereof, may order
law-enforcement officers employed by the state or any political subdivision
thereof to provide it or the claim investigator with copies of any information
or data gathered in the investigation of the criminally injurious conduct that
is the basis of any claim to enable it to determine whether, and the extent to which,
a claimant qualifies for an award of compensation.
(d) the court, judge
commission or a commissioner thereof, may require the claimant to
supplement the application for an award of compensation with any reasonably
available medical or psychological reports relating to the injury for which the
award of compensation is claimed.
(e) The court, judge
commission or a commissioner thereof, or the claim investigator, in a
claim arising out of a violation of article eight-b, chapter sixty-one of this
code, shall not request the victim or the claimant to supply any evidence of
specific instances of the victim's activity, or reputation evidence of the
victim's sexual activity, unless it involves evidence of the victim's past
sexual activity with the offender, and then only to the extent that the court,
the judge, the commissioner or the claim investigator finds that the evidence
is relevant to a fact at issue in the claim.
(f) Notwithstanding any
provision of this code to the contrary relating to the confidentiality of
juvenile records, the Court of Claims State Claims Commission, a
judge or a commissioner thereof, or the claim investigator shall
have access to the records of juvenile proceedings which bear upon an
application for compensation under this article. The Court of Claims State
Claims Commission, a judge or a commissioner thereof, and the
claim investigator, shall, to the extent possible, maintain the confidentiality
of juvenile records.
§14-2A-17. Contempt sanction not available.
If a person refuses to
comply with an order under this article, or asserts a privilege, except
privileges arising from the attorney-client relationship, so as to withhold or
suppress evidence relevant to a claim for an award of compensation, the court,
judge commission or a commissioner may make any just order,
including denial of the claim, but shall not find the person in contempt. If
necessary to carry out any of his or her powers and duties, the claim
investigator may petition the Court of Claims State Claims Commission
for an appropriate order, including an order authorizing the investigator to
take the depositions of witnesses by oral examination or written interrogatory,
but the Court of Claims State Claims Commission shall not find a
person in contempt for refusal to submit to a mental or physical examination.
§14-2A-18. Effect of no criminal charges being filed or conviction of offender.
The court, or a judge
commission or a commissioner thereof, may approve an award of
compensation whether or not any person is convicted for committing the conduct
that is the basis of the award. The filing of a criminal charge shall be a
prerequisite for receipt of compensation unless it is determined that no
charges were filed due to the identity of the perpetrator being unknown: Provided,
That no criminal charges need be filed if: (1) The claimant is an adult at
the time the conduct giving rise to the claim occurred and no criminal charges
were filed for reasons other than the desire of the claimant and a law-enforcement
agency confirms that the available evidence supports a finding that a crime
occurred; or (2) the claimant was a juvenile at the time the conduct giving
rise to the claim occurred. Proof of conviction of a person whose conduct gave
rise to a claim is conclusive evidence that the crime was committed, unless an
application for rehearing, an appeal of the conviction or certiorari is
pending, or a rehearing or new trial has been ordered.
The court, or a judge
commission or a commissioner thereof, shall suspend, upon a
request of the claim investigator, the proceedings in any claim for an award of
compensation pending disposition of a criminal prosecution that has been
commenced or is imminent.
§14-2A-19. Attorney and witness fees.
(a) By separate order, the court,
or a judge commission or a commissioner thereof, shall
determine and award reasonable attorney's fees, commensurate with services
rendered and reimbursement for reasonable and necessary expenses actually
incurred shall be paid from the Crime Victims Compensation Fund to the attorney
representing a claimant in a proceeding under this article at the same rates as
set forth in section thirteen-a, article twenty-one, chapter twenty-nine of
this code. Attorney's fees and reimbursement may be denied upon a finding that
the claim or appeal is frivolous. Awards of attorney's fees and reimbursement
shall be in addition to awards of compensation, and attorney's fees and
reimbursement may be awarded whether or not an award of compensation is
approved. An attorney shall not contract for or receive any larger sum than the
amount allowed under this section. In no event may a prosecuting attorney or
assistant prosecuting attorney represent any victim seeking compensation under
this article.
(b) Each witness called by
the court commission to appear in a hearing on a claim for an
award of compensation shall receive compensation and expenses in an amount
equal to that received by witnesses in civil cases as provided in section
sixteen, article one, chapter fifty-nine of this code to be paid from the Crime
Victims Compensation Fund.
§14-2A-19a. Effect on physician, hospital and healthcare providers filing an assignment of benefits; tolling of the statute of limitations.
(a) As part of the order,
the court, or a judge commission or a commissioner
thereof, shall determine whether fees are due and owing for health care
services rendered by a physician, hospital or other health care provider
stemming from an injury received as defined under this article, and further,
whether or not the physician, hospital or other health care provider has been
presented an assignment of benefits, signed by the crime victim, authorizing
direct payments of benefits to the health care provider. If such fees are due
and owing and the health care provider has presented a valid assignment of
benefits, the court, or a judge commission or a
commissioner thereof, shall determine the amount or amounts and shall cause
such reasonable fees to be paid out of the amount awarded the crime victim
under this article directly to the physician, hospital or other health care
provider. The requirements of this section shall be applicable to, and any such
unpaid fees shall be determined and payable from, the awards made by the Legislature
at regular session, one thousand nine hundred eighty-seven, and subsequently: Provided,
That when a claim is filed under this section, the court commission
shall determine the total damages due the crime victim, and where the total
damages exceed the maximum amount which may be awarded under this article, the
amount paid the health care provider shall be paid in the same proportion to
which the actual award bears to the total damages determined by the court
commission. In any case wherein an award is made which includes an
amount for funeral, cremation or burial expenses, or a combination thereof, the
court commission shall provide for the payment directly to the
provider or providers of such services, in an amount deemed proper by the court
commission, where such expenses are unpaid at the time of the award.
(b) If the health care
provider has filed an assignment of benefits, the provider shall aid the crime
victim in the development of his or her claim by providing the court commission
with the amount of such fees as well as the amount of any portion of the fees
paid the provider by the crime victim directly or paid the provider for the
crime victim by a collateral source.
(c) Whether or not a health
care provider has filed an assignment of benefits, the court commission
shall disclose no information regarding the status of the claim to the
provider: Provided, That the court commission shall
promptly notify the provider of the final disposition of the claim, if the
provider is known to the court commission.
(d) Whenever a person files
a claim under this article, the statute of limitations for the collection of
unpaid fees paid for such health care services shall be tolled during the
pendency of the claim before the court commission.
§14-2A-19b. Rates and limitations for health care services.
The court commission
may establish by court rule or court order maximum rates and
service limitations for reimbursement of health care services rendered by a
physician, hospital, or other health care provider. An informational copy of
the maximum rates and service limitations shall be filed with the Joint
Committee on Government and Finance upon adoption by the court commission.
Any change in the maximum rates or service limitations shall be effective sixty
days after the adoption of the changes. A provider who accepts payment from the
court commission for a service shall accept the court's commission’s
rates as payment in full and may not accept any payment on account of the
service from any other source if the total of payments accepted would exceed
the maximum rate set by the court commission for that service. A
provider may not charge a claimant for any difference between the cost of a
service provided to a claimant and the court's commission’s payment
for that service. To ensure service limitations are uniform and appropriate to
the levels of treatment required by the claimant, the court commission
may review all claims for these services as necessary to ensure their medical
necessity.
§14-2A-20. Budget preparation; procedure for payment of claims.
(a) The Legislative Auditor shall submit to the Department of Administration, on or before November 20, of each year, an anticipated budget for the crime victims compensation program provided in this article for the next fiscal year, which shall include:
(1) An estimate of the balance and receipts anticipated in the Crime Victims Compensation Fund;
(2) Amounts anticipated to be sufficient for the payment of all administrative expenses necessary for the administration of this article; and
(3) Amounts anticipated to be sufficient for the payment of awards, attorney fees, witness fees and other authorized fees, costs or expenses that may arise under this article during the next fiscal year.
(b) The Governor shall include in his or her proposed budget bill and revenue estimates the amounts submitted by the Legislative Auditor under subsection (a) of this section.
(c) The clerk shall certify each authorized award and the amount of the award and make requisition upon the Crime Victims Compensation Fund to the Auditor. Notwithstanding any provision of chapter twelve of this code to the contrary, the Auditor shall issue a warrant to the Treasurer without further examination or review of the claim if there is a sufficient unexpended balance in the Crime Victims Compensation Fund.
(d) The court commission
may provide that payment be made to a claimant or to a third party for economic
losses of the claimant and the order may provide an award for the payment for
actual economic losses which are prospective as well as those which have
already been incurred.
§14-2A-21. Annual report
of Court of Claims State Claims Commission.
The Court of Claims State
Claims Commission shall prepare and transmit annually to the Governor and
the Legislature a report of the activities of the Court of Claims State
Claims Commission under this article. The report shall include the number
of claims filed, the number of awards made and the amount of each award, and a
statistical summary of claims and awards made and denied; the balance in the
Crime Victims Compensation Fund with a listing by source and amount of the
moneys that have been deposited in the fund; the amount that has been withdrawn
from the fund, including separate listings of the administrative costs incurred
by the Court of Claims State Claims Commission, compensation of judges,
commissioners and court commission personnel, the amount awarded
as attorneys' fees.
§14-2A-25. Publicity.
(a) The clerk of the Court
of Claims State Claims Commission shall prepare an information
brochure for the benefit of the general public, outlining the rights of
claimants and procedures to be followed under this article. Copies of such
brochure shall be distributed to law-enforcement agencies in the state, and be
made available to other interested persons.
(b) Any law-enforcement
agency that investigates an offense committed in this state involving personal
injury shall make reasonable efforts to provide information to the victim of
the offense and his or her dependents concerning the availability of an
award of compensation and advise such persons that an application for an award
of compensation may be obtained from the clerk of the Court of Claims State
Claims Commission.
§14-2A-26. Rules and regulations.
(a) The Court of Claims
State Claims Commission may promulgate rules and regulations to
implement the provisions of this article.
(b) The Court of Claims State
Claims Commission shall promulgate rules and regulations to govern the
award of compensation to the spouse of, person living in the same household
with, parent, child, brother or sister of the offender or his or her
accomplice in order to avoid an unjust benefit to or the unjust enrichment of
the offender or his or her accomplice.
§14-2A-28. Retroactive effect of amendments.
Amendments made to the
provisions of this article during the regular session of the Legislature in the
year one thousand nine hundred eighty-four, shall be of retroactive effect to
the extent that such amended provisions shall apply to all cases pending before
the Court of Claims State Claims Commission on the effective date
of the act of the Legislature which effects such amendment.
NOTE: The purpose of this bill is to rename the Court of Claims the state Claims Commission, rename judges commissioners; modify definitions; provide explicit powers for the removal of commissioners; provide authority to the Joint Committee on Government and Finance for the hiring of a clerk, chief deputy clerk, and deputy clerks; and establish a shortened procedure for certain road condition claims.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.