Be it enacted by the Senate and House of Representatives
in General Court assembled, and by the authority of the same,
SECTION 1. Chapter 12 of the General Laws is hereby amended by inserting after section 11J the following section:-
Section 11K. Subject to appropriation, there shall be established within the department of the attorney general a division of victim compensation and assistance to administer the provisions of chapter two hundred and fifty-eight C. The attorney general shall designate a program director of said division. Said program director may appoint and remove, subject to the approval of the attorney general, such investigative, legal, clerical and other assistants as the work of the division may require. The program director shall have the authority to promulgate rules and regulations pursuant to chapter thirty A as may be necessary to carry out the provisions of said chapter two hundred and fifty-eight C.
SECTION 2. Section forty-three D of chapter two hundred and eighteen of the General Laws is hereby repealed.
SECTION 3. Chapter two hundred and fifty-eight A of the General Laws is hereby repealed.
SECTION 4. Section 4 of chapter 258B of the General Laws, as appearing in the 1992 Official Edition, is hereby amended by striking out, in lines 37 to 39, inclusive, the words "and the victim compensation program as provided under chapter two hundred and fifty-eight A",- by striking out, in lines 42 to 44, inclusive, the words "and the availability of compensation to victims of crime pursuant to said chapter two hundred and fifty-eight A",- by striking out, in lines 49 and 50, the words ", as well as victim compensation available under said chapter two hundred and fifty-eight A",- and by striking out, in lines 56 and 57, the words ", as well as the compensation services provided under said chapter two hundred and fifty-eight A".
SECTION 5. Section 9 of said chapter 258B, as so appearing, is hereby amended by striking out, in lines 6 to 8, inclusive, the words ", and to the treasurer for the compensation of victims of violent crimes as provided by chapter two hundred and fifty-eight A".
SECTION 6. The General Laws are hereby amended by inserting after chapter 258B the following chapter:- `tuc CHAPTER 258C. COMPENSATION OF VICTIMS OF VIOLENT CRIMES.
Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:-
"Claim", an application for compensation under this chapter.
"Claimant", a person who files a claim for compensation under this chapter.
"Crime", an act committed by a person which, if committed by a mentally competent, criminally responsible adult who has no legal exemption or defense, would constitute a crime.
"Department", the department of the attorney general.
"Dependent", mother, father, spouse, spouse's mother, spouse's father, child, grandchild, adopted child, child born out of wedlock, brother, sister, niece or nephew, or other person who is wholly or partially dependent for support upon the victim at the time of his injury or death due to a crime alleged in a claim made pursuant to this chapter.
"Division", the division of victim compensation and assistance division within the department of the attorney general.
"Family", the spouse, parent, grandparent, stepmother, stepfather, child, grandchild, brother, sister, half brother, half sister, adopted child of parents, or spouse's parents of the victim.
"Medical care", the medical, psychological, surgical, dental, optometric, chiropractic, podiatric and hospital care provided to a victim including, but not limited to, medicines, medical, dental and surgical supplies, crutches, artificial members and appliances and training in the use of artificial members and appliances.
"Offender", an adult or juvenile person who commits a crime as defined in this section for which a claimant seeks compensation.
"Out-of-pocket loss", unreimbursed or unreimbursable expenses for services eligible for compensation pursuant to this chapter.
"State", a state of the United States, the district of Columbia, the commonwealth of Puerto Rico or any other possession or territory of the United States.
"Victim", a person who suffers personal physical or psychological injury or death:
(a) as a direct result of a crime as defined in this section;
(b) as a result of attempting to assist a person against whom a crime was attempted or committed; or
(c) as a result of efforts to prevent a crime or an attempted crime from occurring in his presence or to apprehend a person who had committed a crime in his presence.
Section 2. (a) No compensation shall be paid under this chapter unless the division finds that a crime was committed and that such crime directly resulted in personal physical or psychological injury to, or death of, the victim.
(b) No compensation shall be paid under this chapter unless the claimant demonstrates that the crime was reported to the police or other law enforcement authorities or to an agency or entity obligated by law to report complaints of criminal misconduct to law enforcement authorities. Except in the case where the division finds such report to have been delayed for good cause, such report shall have been made within five days after the occurrence of such crime.
(c) A claimant shall be eligible for compensation only if such claimant cooperates with law enforcement authorities in the investigation and prosecution of the crime in which the victim was injured or killed unless the claimant demonstrates that he possesses or possessed a reasonable excuse for failing to cooperate.
(d) A claimant shall not be eligible for compensation if such compensation would unjustly benefit the offender; provided, however, that a claimant shall not, except pursuant to regulations enacted in accordance with section four to prevent unjust enrichment, be denied compensation because of such claimant's or victim's familial relationship with the offender or because of the sharing of a residence by the victim or claimant and the offender.
(e) An offender or an accomplice of an offender shall not be eligible to receive compensation with respect to a crime committed by an offender. To the extent that the victim's acts or conduct provoked or contributed to the injuries, the division shall reduce or deny an award to the claimant or claimants in accordance with regulations enacted pursuant to section four.
(f) No compensation shall be paid unless the claimant, or an individual for whose benefit a claim is made, has incurred actual out-of-pocket loss of at least one hundred dollars or has lost two continuous weeks of earnings or support or liability for compensable expenses as a direct result of the injury to or death of a victim. The foregoing provision shall not apply to a claimant who was over sixty years of age on the date of the alleged crime or was the victim of rape.
(g) The claimant may retain counsel under this chapter. Attorneys fees shall be deducted from, and not in addition to, the total award for compensation. No attorneys fees shall be paid unless the attorney submits an affidavit which sets forth the hours worked and the services rendered for representing the claimant in the claim for compensation. The division may include as part of its award, reasonable attorneys fees to be determined by the division in an amount not to exceed fifteen percent of the total award for compensation.
Section 3. (a) The maximum award for compensation to a claimant under this chapter shall be twenty-five thousand dollars. If there are two or more claimants eligible for compensation arising out of a crime committed against one individual for the same crime, each claimant shall be entitled to receive compensation to the extent of out-of-pocket loss, in proportion to the out-of-pocket losses of every other claimant. The cumulative total of all awards based on such crime shall not exceed twenty-five thousand dollars.
(b) Except as otherwise provided in this chapter, the following expenses are compensable in accordance with this section:
(1) The maximum award of compensation for burial expenses shall be four thousand dollars. A legal guardian, dependent or other family member of the victim or a person who actually incurs burial expenses directly related to the death of a victim shall be eligible for compensation for such burial expenses.
(2) (A) Expenses incurred for hospital services as the direct result of injury to the victim shall be compensable in accordance with this chapter; provided, however, that when claiming compensation for hospital expenses, the claimant must demonstrate an out-of-pocket loss or a legal liability for payment of said expenses. No hospital expenses shall be paid where the expense is reimbursable by medicaid or where the services are covered by chapter one hundred and eighteen F. Every claim for compensation for hospital services shall include a certification by the hospital that the services are not reimbursable by medicaid and that the services are not covered by chapter one hundred and eighteen F. In no event shall the amounts awarded for hospital services exceed the rates for services established by the rate setting commission in accordance with chapter six A, if rates have been established for such services.
(B) Expenses incurred for physician, dental, ambulance, or other medically necessary services or prosthetic devices as the direct result of injury to the victim shall be compensable in accordance with this chapter; provided however, that when claiming compensation for such expenses, the claimant must demonstrate an out-of-pocket loss or legal liability for payment of such expenses. No physician, dental, ambulance or other necessary services or prosthetic device shall be paid where the services were reimbursable by medicaid. Every claim for compensation for physician, dental, ambulance or other medically necessary services or for prosthetic devices shall include a certification by the health care provider that the expense was not reimbursable by medicaid.
(C) A victim or, where death results from the crime, the dependents and family members of the victim, shall be eligible for compensation for reasonable mental health counseling obtained as a result of the crime.
(D) If the victim was employed or had received a bona fide employment offer at the time of the crime, he shall be eligible for compensation for loss of actual earnings due to disability from work as the result of injuries caused by the crime. In order to be eligible for lost earnings, the victim must demonstrate medical disability and causal relationship to the crime. The amount of compensation shall be based on the victim's net earnings or expected net earnings as a result of an employment offer at the time of the crime. If the victim is a minor at the time of the crime, he shall be eligible for future lost earnings due to disability from future employment as a result of injuries caused by the crime.
(E) If the sole occupation of the victim at the time of the crime and for the preceding one year was limited to performing the duties and responsibilities of a homemaker, the victim or his dependents shall be eligible for reimbursement for the reasonable costs of maintaining such services. In order to be eligible for compensation for homemaker services in nonhomicide cases, the victim must demonstrate a medical disability which is causally related to the crime.
(F) In the case of the death of the victim as a direct result of the crime, a dependent of a victim shall be eligible for compensation for loss of the victim's support. No compensation for loss of support shall be paid unless the claimant demonstrates either that the dependent was living with the victim at the time of the crime or, in the case of minor children of a deceased victim who were not residing in the victim's household at the time of the crime, that the minor children received financial support directly from the victim prior to the crime or were legally entitled to receive such support, such entitlement having been established by a court order or a judicially enforceable agreement. An award for loss of support shall be based upon the victim's actual earnings and the life expectancy of the victim.
Section 4. (a) The division of victim compensation and assistance shall administer the provisions of this chapter. Subject to appropriation, the attorney general shall designate a program director of said division. Said program director may appoint and remove, subject to the approval of the attorney general, such investigative, legal and clerical or other staff as the work of the division requires.
(b) The program director shall have the authority to promulgate rules and regulations pursuant to chapter thirty A as may be necessary to carry out the provisions of this chapter.
(c) The program director shall be authorized to apply for and receive sums which may be transmitted to the victim compensation fund maintained by the treasurer and for any other such funds as may become available to administer the requirements of this chapter.
Section 5. (a)(1) A claim for compensation under this chapter shall be filed within three years of the date of the crime.
(2) The claimant has the burden of proving by a preponderance of the evidence that he is eligible to receive compensation.
(3) A claim under this chapter shall be made on a claim form prescribed by the division. The claim shall be accompanied by copies of bills and other documentation supporting the claim, and shall be signed under the pains and penalties of perjury. Any claim for loss of support or other expenses incurred as the result of the death of a victim must be accompanied by proof of dependency of the claimant upon the victim. All claims must contain a release of information necessary to investigate the claim.
Law enforcement agencies, district attorneys, the departments of social services and public welfare, hospitals, physicians and other service providers shall cooperate with the department in the investigation of claims filed under this chapter.
(b) Upon receipt of a claim hereunder, the division shall acknowledge receipt of same, in writing, to the claimant or counsel of record. The division shall, thereafter, conduct an investigation of the claim to verify the information contained on the application.
The division shall be authorized to issue a written civil investigative demand, issue interrogatories, under oath, and requests for production of documents, and take oral testimony, under oath, in order to obtain information necessary to verify a claim. All information collected by the division shall be kept in accordance with the provisions of chapters four, sixty-six and sixty-six A.
A civil investigative demand may be served by certified mail, return receipt requested, and first class mail and shall be returned within twenty days from the date of service. Failure to comply with this provision may result in dismissal of the claim for compensation.
Whenever a person fails to comply with a civil investigative demand served upon him pursuant to this section, the attorney general may petition the district court of any county in which such person resides, is found, or transacts business, to enter such orders as may be necessary to carry into effect the provisions of this section. A failure to comply with an order entered under this section shall be punished as a contempt of court.
Section 6. The claimant shall have a continuing obligation to notify the division of a change in address. Failure to comply with this requirement may result in the dismissal of the claim for compensation or the termination of a proceeding set forth in this chapter.
Section 7. (a) Within fifteen days of completion of the investigation, the program director shall mail notice to the claimant or the attorney of record stating the amount of compensation to be paid or denied, and the reasons therefor, and the payees, if any. The program director may direct that warrant for payment by the treasurer be made jointly to the claimant and to a provider. The notice shall contain information regarding the right of the claimant to petition for judicial review of the decision of the program director.
(b) Upon receipt of the notice of assent by a claimant, the division shall present the notice to the treasurer for payment. Subject to the availability of funds appropriated for this purpose, said treasurer shall cause payment to be made in accordance with the division's award without further authorization.
Section 8. (a) Within fifteen days of the date of mailing of the notice of award or denial, a claimant aggrieved by the program director's decision may request, in writing, a reconsideration of such decision. Said program director shall reconsider any order for which a request for reconsideration is received. Said program director may in his discretion reconsider a decision granting or denying an award or the amount of an award where there has been no request for reconsideration. After reconsideration of the award, said program director shall affirm the decision or issue an amended notice of award or denial.
(b) The program director shall notify the claimant by certified mail, return receipt required, and first class mail of the decision upon reconsideration within twenty days of the claimant's request for reconsideration. Such notice shall include information regarding the claimant's right to a petition for judicial review of the decision of the program director.
Section 9. (a) Within thirty days of the date of mailing of the notice of award or denial by the program director, the claimant may petition for judicial review in the district court within the judicial district in which the claimant resides or, in the case of a nonresident claimant, in the Boston municipal court. Where the claimant requests reconsideration of the decision of the program director, the petition for judicial review shall be filed within twenty days from the date of mailing of the decision of reconsideration. If no petition is filed within the time specified, the decision of the program director shall be final.
(b) The program director shall, in response to the aforesaid, within thirty days, file in such court a copy of his official decision.
(c) The district court shall schedule the matter for hearing and shall notify the parties of the date and time thereof.
(d) The review shall be conducted by the district court without a jury.
(e) For the purpose of determining the amount of compensation payable pursuant to this chapter, the chief justice for administration and management shall formulate standards for the uniform application of this chapter. The court shall take into consideration the provisions of this chapter, the rates and amounts of compensation payable for injuries and death under other laws of the commonwealth and of the United States, excluding pain and suffering. All decisions of the court on claims heard under this chapter shall be in writing, setting forth the name of the claimant, the amount of compensation and the reasons for the decision. The clerk of the court shall immediately notify the claimant in writing of the decision and shall forward to the state treasurer a certified copy of the decision. the state treasurer without further authorization shall, subject to appropriation, pay the claimant the amount determined by the court.
In determining the amount of compensation payable, the court shall determine whether because of his conduct the victim contributed to the infliction of his injury; and the court shall reduce the amount of the compensation or deny the claim altogether, in accordance with such determination; provided, however, that the court may disregard the responsibility of the victim for his own injury where such responsibility was attributable to efforts by the victim to aid a victim, or to prevent a crime or an attempted crime from occurring in his presence or to apprehend a person who had committed a crime in his presence or had in fact committed a felony.
(f) Judicial review of the finding and decisions of the program director shall be a de novo hearing of the claim.
Section 10. No compensation shall be awarded or paid unless the out-of-pocket expenses or legal liability of the claimant for services rendered as the result of the crime exceeds any and all of the amounts received, applied for, or to be applied for as the result of the crime from any of the following or any combination of the following:
(a) insurance, disability;
(b) workers' compensation, unemployment compensation, social security benefits, veteran's benefits, retirement benefits;
(c) medicaid, medicare, free care, any other forms of public assistance including aid to families with dependent children and assistance to the aged and disabled or any successor thereto;
(d) restitution in the criminal action;
(e) proceeds from a civil suit; or
(f) institutional gifts.
Section 11. Acceptance of any compensation under this chapter shall subrogate the commonwealth, to the extent of such compensation paid, to any right or right of action accruing to the claimant or to the victim to recover payments on account of losses resulting from the crime with respect to which the compensation has been paid, and the claimant has a continuing obligation to so notify the attorney general of such recovery. The attorney general may enforce the subrogation, and he shall bring suit to recover from any person to whom compensation is paid, to the extent of compensation actually paid under this chapter, any amount received by the claimant from any source exceeding the actual loss to the victim.
Section 12. Any person who: (a) submits a false or fraudulent application or claim for an award; (b) intentionally makes or causes to be made any false statement or representation of a material fact in relation to any claim pending before the division; or (c) intentionally conceals or fails to disclose information affecting the amount of or the initial or continued right to any such award shall be punished by a fine of not more than one thousand dollars or by imprisonment in a house of correction for not more than six months, or both.
The commonwealth shall, in addition, have a civil cause of action for relief against any person who violates the provisions of this chapter for the amount of damages which the commonwealth sustains by reason of such violation which shall include costs of the action and attorneys fees and, in addition, for punitive damages of not more than triple the amount of damages which the commonwealth sustains, and interest. The attorney general may bring any such action necessary to enforce this section.
Any amount reimbursed or any fine or damages paid pursuant to this section shall be paid to the victim compensation fund maintained by the treasurer.
Section 13. No person who, in good faith, provides or obtains, or attempts to provide or obtain, assistance for a victim of a crime as defined in section one, shall be liable in a civil suit for damages as a result of any acts or omissions in providing or obtaining, or attempting to provide or obtain, such assistance unless such acts or omissions constitute willful, wanton or reckless conduct.
SECTION 7. The provisions of section forty-three D of chapter two hundred and eighteen and chapter two hundred and fifty-eight A of the General Laws shall apply only to claims in which a report of the attorney general or other civil pleading is awaiting disposition by a court as of the effective date of this act and shall not apply to any other claims pending or to any claims commenced on or after the effective date of this act.
SECTION 8. The provisions of chapter two hundred and fifty-eight C of the General Laws, inserted by section six of this act, shall not apply to claims in which a report of the attorney general or other civil pleading is awaiting disposition by a court as of the effective date of this act but shall apply to all other claims pending upon the effective date of this act and to all claims commenced on or after the effective date of this act.
SECTION 9. Sections two, three, four and five of this act shall take effect on January first, nineteen hundred and ninety-five.