The proposed rule promulgation will clarify compensation eligibility requirements and consolidate the relocation forms into the rule.

 

DEPARTMENT OF LEGAL AFFAIRS

Division of Victim Services and Criminal Justice Programs

RULE NO.:RULE TITLE:

2A-2.2002:Compensation Eligibility Requirements

PURPOSE AND EFFECT: The proposed rule promulgation will clarify compensation eligibility requirements and consolidate the relocation forms into the rule.

SUMMARY: Compensation eligibility requirements will be clarified and the relocation forms will be consolidated into the rule.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: During discussion of the economic impact of this rule, the Department, based upon the expertise and experience of its members, determined that a Statement of Estimated Regulatory Costs (SERC) was not necessary and that the rule amendment will not require ratification by the Legislature. The proposed rulemaking will not have an adverse impact or effect regulatory costs in excess of $1 million within five years as established in Sections 120.541(2)(a)1., 2., and 3., F.S.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 960.045(1) FS.

LAW IMPLEMENTED: 960.03, 960.05, 960.065, 960.07, 960.12, 960.13, 960.15, 960.16, 960.17, 960.18, 960.194, 960.195, 960.196, 960.198, 960.199 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Rick Nuss, Chief Bureau of Criminal Justice Programs, Department of Legal Affairs, PL-01, The Capitol, Tallahassee, FL 32399-1050.

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

2A-2.2002. Compensation Eligibility  Requirements.

(1) The victim/applicant has the ultimate responsibility to provide information and documentation needed to support eligibility and benefit payments under this rule. The victim/applicant must provide updated address and contact information, which shall be considered the address of record. When an incomplete application is received, the bureau will notify the victim/applicant at their address of record, or their email address if provided (exception for relocation benefit requests applies), of the information needed for eligibility determination and benefits.  Required documents include:

(a) Completed, signed, and dated application.  Failure to fully complete, sign, or date the application or provide the requested documentation will cause delays and shall result in a denial of the claim.  The application must include the type of benefits requested and provide all respective information required by the application form. 

(b) Acceptable proof of crime from the proper authorities or form BVC430 Law Enforcement Information Reporting Form (revised 10/20) adopted and incorporated by reference at rule 2A-2.2001, F.A.C., documenting that:

1. A compensable crime occurred.

2. The victim did not contribute to the infliction of his or her injury or death.  Contributory misconduct is based on information in writing from a proper authority that the victim’s conduct contributed to his or her injury or death. Penalty assessments, if imposed, based on contribution will be applied only to payments made directly to the victim or applicant at the rate of 25 percent of the amount otherwise payable. A penalty assessment of more than 25 percent will result in the denial of benefits.

3. The victim did not act unlawfully.  An establishment of unlawful activity is based on information in writing from a proper authority indicating that the victim’s conduct at the time of crime was unlawful.

4. The crime was reported to the proper authorities within the required timeframe in which the incident was known to have occurred.

5. The victim has cooperated with the investigation and prosecution of known offenders.

6. Proof of third-party payments such as insurance, restitution, judgments or settlements (e.g., copy of insurance explanation of benefits, settlement agreements, court documents for restitution and judgments), if applicable.

7. Written materials that substantiate payment of the requested benefit type as described herein (includes proof of crime-related expenses).

(2) Victim Compensation Benefits.

(a) Collateral sources must be exhausted before any compensable benefit is determined payable, except loss of support and catastrophic disability.

(b) Disability benefits.

1. Disability compensation is available to eligible victims who suffered a permanent whole body disability pursuant to Section 440.15(3)(b), F.S., as a result of the crime. 

a. The disability assessment must be in accordance with the American Medical Association’s Guide to Evaluation of Permanent Impairment or the Florida Permanent Impairment Rating Guide. 

b. Verification that the victim has reached maximum medical improvement, or that the percentage of disablity will not change in lieu of maximum medical improvement, must be received.

2. The disability allowance is calculated at $250.00 per percentage point for disability ratings of one through ten percent, and $500.00 per percentage point for disability ratings of eleven percent and above, up to the maximum benefit amount on the Schedule of Benefits.

3. Pre-existing disability is not compensable.

4. The following is needed to calculate crime-related disability benefits:

a. Form BVC409 Victim Compensation Treatment Disability Statement (revised 10/20) adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-       , signed by the treating physician, dentist, psychiatrist, or chiropractor.

b. If the documentation specified above cannot be obtained, a signed and dated written statement by the treating physician, dentist, psychiatrist, or chiropractor which specifies all the information provided on form BVC409 Victim Compensation Treatment Disability Statement shall be accepted.

(c) Wage loss benefits.

1. Wage loss compensation is available to eligible victims:

a.  Who missed time from work because they were unable to work as a result of the physical injuries sustained as a result of the crime; and

b. The victim’s parent or legal guardian when he or she misses time from work to provide immediate medical care to the minor victim.

2. Lost wages are compensable within the timeframes established and up to the percentage and maximum benefit amount on the Schedule of Benefits, based on the victim/applicant’s actual gross average weekly wage or maximum gross average weekly wage provided by the Department of Financial Services for Workers’ Compensation Benefits. In no case may the wage loss payment exceed the maximum gross average weekly wage (“GAWW”) established by the Department of Financial Services.

3. The victim or applicant must have been gainfully employed or accruing reemployment assistance benefits at the time of the crime.

4. The following is needed to calculate crime-related wage loss benefits:

a. Form BVC405 Victim Compensation Wage Loss Employment Report (revised 10/20) adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-        , which must be signed by the employer’s human resources director or other authorized human resources supervisor, employee administrative services supervisor, chief financial officer, chief executive officer, president, or owner.

b. If the documentation specified above cannot be obtained, the following documentation which specifies all the information provided on form BVC405 Victim Compensation Wage Loss Employment Report (revised 10/20) shall be accepted:

i. The victim/applicant’s individual earnings statement(s) showing loss of dates and income from work as a result of the crime;

ii. Unemployment compensation (reemployment assistance) benefits statement when the victim was not employed at the time of the crime but was receiving unemployment compensation (reemployment assistance) benefits, and because of the crime injuries the victim is not able to work, or actively seek employment which disqualifies them from procuring unemployment compensation benefits; or,

iii. Federal income tax for the quarter or year preceding the date of the crime (if self-employed or working for a family member).

c. Form BVC409 Victim Compensation Treatment Disability Statement (revised 10/20) adopted and incorporated by reference above, signed by the treating physician, dentist, psychiatrist, or chiropractor.

d. If the documentation specified above cannot be obtained, a signed and dated written statement by the treating physician, dentist, psychiatrist, or chiropractor which specifies all the information provided on form BVC409 Victim Compensation Treatment Disability Statement (revised 10/20) adopted and incorporated by reference above, shall be accepted.

(d) Loss of support benefits.

1. Loss of support compensation is available to the following eligible persons:

a. The surviving spouse;

b. Dependent parent, sibling, and child(ren); and

c. A person who was dependent for his or her principal support on the deceased victim.

2. Loss of support compensation is available to eligible dependents of a deceased victim or intervenor who was employed, was receiving reemployment assistance, or had applied for and would have been eligible for unemployment compensation benefits (reemployment assistance), at the time of the crime. 

3. Benefits for loss of support are calculated by determining the earnings lost for a period of three years.  The gross average weekly wage is multiplied by 52 weeks then multiplied by 3 years, to equal the total loss of support benefit up to the maximum benefit amount on the Schedule of Benefits. 4. Acceptable documentation for crime-related loss of support includes the following:

a. Income tax returns showing earnings for one to three years preceding the date of the crime. If the claim will exhaust the maximum allowable benefit using just the year prior to the date of the crime, then only one year of tax documentation is necessary. If not, two or three years of prior tax documents for the years preceding the date of the crime are required to calcualte the gross average weekly wage.

b. Reemployment assistance statements may be used in combination with tax documentation to calculate the gross average weekly wage.

c. Alternatively, form BVC405 Victim Compensation Wage Loss Employment Report (revised 10/20), which is adopted and incorporated by reference above, may be submitted to document earnings preceding the crime.

4. Proof of dependency is established based on:

a. The deceased victim’s federal income tax return;

b. Marriage certificate;

c. Birth or death certificate;

d. Copy of approval for Social Security Administration survivor benefits;

e. A court order for support; or

f. Documentation identifying joint expenses exceeding the applicant’s income and that the expenses had been paid by the deceased. Acceptable documentation includes certified copies of financial records, leases, mortgages or other forms of mutual indebtedness for a minimum of one year preceding the occurrence of the crime.

(e) Itemized bills must be submitted before payment to a provider or reimbursement to the victim/applicant can be considered pursuant to Sections 960.13, 960.197 and 960.28, F.S.

1. The itemized bill (invoice) should be prepared using industry standard forms (e.g., CMS-1450, 1500, J400), or on the provider’s letterhead and must include the following information:

a. Service provider/facility’s name, street address, city, state and zip code, email address, and telephone number (including area code);

b. Organization/treatment facility’s mailing address;

c. Federal tax identification number;

d. Beginning and ending date(s) of service;

e. Name and address of individual being billed for services rendered;

f. Revenue code, description of service, CPT or equivalent code, service date, service units, and total charges;

g. Diagnosis code, diagnosis, or nature of injury; and,

h. First and last name of attending medical professional and license number.

2. Out-of-pocket reimbursement to the victim/applicant for qualified funeral/burial, mental health (includes grief counseling), medical/dental expenses, and crime scene cleanup shall be compensated at 100 percent, when services or treatment was rendered within the timeframes established and up to the maximum benefit amount on the Schedule of Benefits. 

3.  If the provider rejects payment in full from the bureau, funds may be paid to the victim/applicant, who is then responsible for the bill.

4. Costs for interpreter services for eligible victims with (foreign) language barriers and/or hearing impairment which allows victims to receive assistance in obtaining benefits and medical or mental health treatment services. These costs are included in the respective maximum benefit amounts and must be identified on an itemized bill. This does not apply to interpreter costs incurred for court-related activities which are not compensable.

5. If the offender would be unjustly enriched, either directly or indirectly, no reimbursement is compensable.

(f) Funeral/burial expenses.

1. Funeral/burial compensation is available to eligible applicants when services were directly related to the crime and when such services were rendered by a qualified person.

2. The applicant must be identified on the funeral contract as the party who paid the funeral expenses or the party responsible for the unpaid funeral expense.

3. Funeral/burial expenses are considered expenses associated with the funeral, services that constitute a funeral, transporting the deceased victim’s remains, burying, entombing, internment, cremation, procession, wake, or memorial ceremony held in honor or observation of the deceased and any other expenses which are not otherwise listed but are directly related to a funeral/memorial ceremony or the care of the decedent. With exception to religious practices, food, beverages, bereavement travel, and expenses associated with social events are not compensable.

(g) Mental health treatment (inpatient and outpatient) expenses.

1. Treatment expenses include any financial obligation or monetary outlay for crime-related mental health or grief counseling services necessary as a result of the crime for which the victim/applicant is responsible for payment.  Treatment expenses are compensable when the treatment is rendered by a person qualified to provide mental health counseling pursuant to Chapter 458, 490 or 491, F.S.

2. Inpatient mental health care is limited to acute, crisis stabilization up to seven days.

3. Minors who saw or heard the crime incident and who suffered a psychological or psychiatric injury as a result of the crime, but were not physically injured, may receive mental health care, when the law enforcement report reflects that the minor was present at the crime scene.

4. Minors younger than 18 years of age who were the victim of a felony or misdemeanor offense of child abuse that resulted in a mental injury, as defined in Section 827.03, F.S., but who were not physically injured, are eligible for mental health treatment benefits.

5. Persons who suffered a psychological or psychiatric injury as a direct result of a forcible felony may receive mental health care, when the law enforcement report identifies the individual as a victim of the crime. This is the only benefit available to adult victims who did not suffer a physical injury or death.

6. A surviving spouse, parent, stepparent, child or sibling of a deceased victim may receive mental health grief counseling. When more than one applicant applies, each adult applicant shall be eligible for benefits up to the maximum benefit amount on the Schedule of Benefits.

7. When a minor receiving mental health treatment care reaches the age of 18, the adult benefit maximum amount applies. If that benefit amount has already been paid, no further mental health or grief counseling benefits are available.

8. Reimbursement for transportation costs to mental health treatment appointments requires the submission of an itemized bill by the treating provider and a reasonable estimate of the mileage between the victim/applicant’s residence. Rental car charges may be compensable for travel to another city for mental health treatment. A traveler who uses an indirect route for personal convenience must bear any extra costs; reimbursement for expenses shall be based only on such charges as would have been incurred by a usually-traveled route.

(h) Medical/dental/non-medical remedial care treatment costs.

1. Treatment expenses include any financial obligation or monetary outlay for crime-related medical or non-medical remedial care and other services necessary as a result of the crime for which the victim/applicant is responsible for payment.

2. Crime-related medical expenses of a deceased adult victim incurred prior to his or her death are compensable only when an eligible applicant is financially responsible for the expense.

3. Medically necessary equipment (e.g., wheelchairs, oxygen tanks, and prosthetics) that are damaged during the crime are compensable when the law enforcement report specifically identifies what happened to those items.

4. Reimbursement for transportation costs to medical/dental treatment appointments requires the submission of an itemized bill by the treating provider and a reasonable estimate of the mileage between the victim/applicant’s residence. A traveler who uses an indirect route for personal convenience must bear any extra costs; reimbursement for expenses shall be based only on such charges as would have been incurred by a usually-traveled route.

(i) Crime scene cleanup.

1. Crime scene cleanup compensation is available to eligible victims/applicants for costs associated with  the removal and disposal of biohazardous and/or biochemical substances following a violent crime that occurs in the private residence or conveyance of the victim. These services must be performed by a government-authorized provider within seven days after law enforcement officially releases the scene as a site closed for investigation. 

2. Acceptable documentation for crime scene cleanup services includes an itemized bill which provides the following:

a. Service provider/facility’s name, street address, city, state and zip code, email address, and telephone number (including area code);

b. Federal tax identification number;

c. Date(s) of service;

d. Date of occurrence of crime incident for which services are provided;

e. Name and address of individual being billed for services rendered;

f. Description of service, service date, service units, and total charges; and,

g. Documentation must prove that services were performed within seven days from the crime incident, or be accompanied by documentation from law enforcement proving that services were performed within seven days after law enforcement released the scene as a site closed for investigation.

(3) Property Loss Benefits.

(a) Proof of disability predating the crime is required for persons between 18 and 60 years of age.  Acceptable documentation includes:

1. Written statements from the Department of Veteran Affairs, the Social Security Administration, or the victim’s treating physician; or

2. Form BVC410 Property Loss Disability Verification Form (revised 10/20) adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-         .

(b) The law enforcement report must identify the victim as the owner of the tangible personal property and assign a value to the property for which compensation is sought. Alternatively, the law enforcement report must identify the property, and acceptable documentation of replacement costs for actual damage may be provided by the victim if the value or estimated damage is not known at the time the law enforcement report is made.

(c) Acceptable documentation of replacement costs includes a receipt for purchase of the replacement item from a vendor or merchant, official published advertisement, or written estimate from a retail establishment for the cost of an equivalent item. The written estimate must be on company letterhead and must include the retailer’s name, address, and an email or website address, if any.

(d) Compensation may be paid for the cost of the item, plus tax, delivery and installation, up to the maximum benefit amount on the Schedule of Benefits.  Victims/Applicants may apply and be eligible for issuance of the insurance waiver provision identified in Section 624.128, F.S., regardless of whether the lifetime benefit has been exhausted. 

(e) Objects can be valued only at replacement cost, regardless of sentimental value. 

(f) Examples of compensable tangible personal property include one’s eyeglasses, watch, clock, telephone, personal computer, wheelchair, medicine, tools of one’s trade, oxygen tank, and mailbox.

(g) Examples of property that is not compensable includes real property, abandoned property, cash or other negotiable instruments, contraband or other illicit items, exchange agreements, items that amount to a monetary loss, are intangible, or are cosmetic damage causing a devaluation of the property.

(h) An application may be filed for each incident in which a tangible loss is incurred as the result of criminal or delinquent acts. However; multiple property losses and ongoing victimization within a reasonable period of time qualify as a single incident, and thus, only one application may be filed.

(4) Relocation Benefits.

(a) To be eligible for relocation assistance, the victim must contact and application must be made through a certified domestic violence or rape crisis center representative in the State of Florida.

(b) Certified center representatives who qualify a victim’s need for relocation assistance according to the requirements established in Sections 960.196, F.S., 960.198, F.S., or 960.199, F.S., shall use form BVC106 Relocation Certification Worksheet (revised 10/20) adopted and incorporated by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-         . to certify their need.  The center representative must verify that they have counseled the recipient in regards to all aspects of the program and the obligations and responsibilities for receiving the funds.  The certification worksheet must accompany form BVC100 Bureau of Victim Compensation Claim Form (revised 10/20) adopted and incorporated by reference at rule 2A-2.2001, F.A.C, for a claim to be determined eligible.  Failure to submit a properly completed certification worksheet will result in the denial of benefits.

(c) Documentation of how funds requested will be used must accompany the certification worksheet for a claim to be determined eligible.  Written documentation of relocating to a new location for short-term interim shelter, rental agreements, or long-term leases will be accepted for purposes of this program.  Acceptable documentation includes standard housing contracts signed by the property manager or landloard and the victim/applicant for tenant occupancy of a house, apartment, or piece of living space such as a room or guest house.  In lieu of a standard housing contract, confirmation of the agreement using form BVC110 Notification of Residential Agreement (10/20) adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-         , shall be used to document how funds will be used for relocation expenses.

(d) It is the responsibility of the certified center representative to obtain and review personal identification documentation before certifying a victim’s need for relocation assistance. The center is not required to forward any personal identification documentation to the bureau.

(e) If approved, funds will be made payable to the victim/applicant in care of the respective certified domestic violence or rape crisis center where the certification of need was obtained.  Payments shall be made in the form of a bank card, voucher, check, state warrant, or any other method determined by the bureau.  Awards will be administered based on the availability of funds.  The bureau shall determine how those funds are disbursed.

(f) Certified center representatives who are distributing relocation assistance funds must witness the victim/applicant’s acknowledgement of the terms and conditions for spending the award and acceptance of payment, in addition to verify the certification of need using form BVC421 Notification of Possible Recoupment and/or Prosecution for Fraud (revised 10/20) adopted and incorporated herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-         The center is responsible for submitting the recoupment form to the bureau upon collection.

(g) If the victim has not accepted the funds at the center within 30 days of payment issuance, the center shall return the funds to the bureau and certification of need will be revoked.  Upon receipt of the returned funds by the bureau, eligibility will be rescinded.

(5) Domestic Violence Relocation Assistance.

(a) Proof of a domestic violence crime which meets the definition of Section 741.28(2), F.S., must come from a proper authority.  Only domestic violence crimes will be considered compensable for purposes of this benefit.

(b) Certification of need for domestic violence relocation assistance must be received by the bureau within 30 days immediately following the occurrence of the domestic violence offense to demonstrate there is an immediate need to relocate.

(c) “Immediate need” is defined as 30 days directly following the occurrence of the domestic violence offense, as defined in Section 741.28, F.S. Exceptions include:

1. Victims for whom a convicted domestic violence offender is within 30 days of pending release from incarceration. In cases involving release, the original domestic violence offense report must be provided along with court or Department of Corrections documentation regarding pending release of the offender.

2. When law enforcement or the state attorney (or by delegation the assistant state attorney) says in writing there is a present need to relocate the victim due to the threat of further domestic violence.

(6) Sexual Battery Relocation Assistance.

(a) Proof of a sexual battery crime which meets the definition of Section 794.011, F.S., must come from a proper authority.  Only sexual battery crimes will be considered compensable for purposes of this benefit.

(b) Certification of need for sexual battery relocation assistance must be received by the bureau within the statutory claim form filing time to demonstrate there is a reasonable fear for the victim’s continued safety.

(7) Human Trafficking Relocation Assistance.

(a) Proof of a human trafficking crime which meets the definition of Section 787.06(3)(b), (d), (f) or (g), F.S., must come from a proper authority.  Only human trafficking involving the delineated sex crimes will be considered compensable for purposes of this benefit.

(b) Certification for relocation assistance must be received by the bureau within 45 days immediately following the crime or an identifiable threat by a human trafficking offender to demonstrate the victim’s need for urgent assistance to relocate.  Exceptions to urgent assistance include:

1. Victims for whom a convicted human trafficking offender is within 30 days of pending release from incarceration. In cases involving release, the original human trafficking offense report must be provided along with court or Department of Corrections documentation regarding pending release of the offender.

2. When law enforcement, state attorney (or by delegation the assistant state attorney), statewide prosecutor, or federal prosecutor says in writing there is a present need to relocate the victim.  Written verification must affirm there is an active ongoing investigation, and that the victim needs to relocate from an unsafe environment due to the threat of further violence which is directly related to the human trafficking offense. 

Rulemaking Authority 960.045(1) FS. Law Implemented 960.03, 960.05, 960.065, 960.07, 960.09 960.12, 960.13, 960.15, 960.16, 960.17, 960.18,  960.195, 960.197, 960.198, 960.199 FS. History‒New                             .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Rick Nuss, Chief, Bureau of Criminal Justice Programs

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Attorney General Ashley Moody

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 4, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: December 8, 2020