CVC Program Guidelines

MEMORANDUM

TO: Victim Advocates, Law Enforcement Personnel, Prosecuting Attorneys

FROM: Department of Public Safety

SUBJECT: The Crime Victims' Compensation Program

PURPOSE: The purpose of these guidelines is to provide the user a reference tool for the Crime Victims' Compensation Program. The text addresses the eligibility requirements for compensation, the policy and procedures on awards and denials, and the issue of subrogation and restitution.

This guideline is for reference and guidance only and is subject to modification and alteration by the Department without notice. However, it is a goal of the Program to update this guideline if a policy or legislative change occurs. Also, this guideline is not designed to be comprehensive, rather, a clarification on frequently raised questions. If you have any questions or comments concerning any aspect in this guideline, please call the Crime Victims' Compensation Program at (573) 526-6006.

  1. CREATION OF CRIME VICTIMS' COMPENSATION FUND AND ADMINISTRATION OF PROGRAM

    Created in 1981, the Missouri Crime Victims' Compensation Fund (referred to as the Fund) is governed by Chapter 595, RSMo, and is designed to financially assist victims of violent crime in paying for reasonable medical expenses, counseling expenses, funeral expenses, lost wages and loss of support. In death cases, surviving dependents may apply for loss of support if the victim was gainfully employed at the time of the crime.

    The Crime Victims' Compensation Program (referred to as the Program) is located within the Department of Public Safety. The Program is responsible for administering the Fund.

  2. POLICY AND PROCEDURE ON ELIGIBILITY
    1. WHO IS ELIGIBLE FOR COMPENSATION

      Eligibility for compensation from the Fund is set out in Section 595.020, RSMo. Those eligible to make a claim are:

      The victim;

      In the case of a sexual assault victim: A relative of the victim requiring counseling in order to better assist the victim in his recovery; and

      In the case of the death of the victim as a direct result of the crime:

      A dependent of the victim;

      Any member of the family who legally assumes the obligation, or who pays the medical or burial expenses incurred as a direct result; or

      A survivor of the victim requiring counseling as a direct result of the death of the victim.


      A description of who is a victim, a relative, a survivor or a dependent is defined in Section 595.010, RSMo. The Program has a statutory duty to use these definitions in determining who is an eligible claimant.

      Section 595.010(28), RSMo, defines a victim as "a person who suffers personal physical injury or death as a direct result of a crime. . ."

      Personal physical injury is defined in Section 595.010(23), RSMo, as "actual bodily harm only with respect to the victim. Personal physical injury may include mental or nervous shock resulting from the specific incident upon which the claim is based." A person who receives mental or nervous shock only, with no actual bodily harm, can be a victim. For example, a stalking victim, where no bodily injury occurs, is an eligible victim under the statute.

      In cases of sexual assault, in addition to the primary victim, relatives of the victim in need of counseling are eligible to make a claim. However, there is a limitation to which relatives of a sexual assault victim are eligible to make a claim. Section 595.010(26), RSMo, defines a relative as "the spouse of the victim or a person related to the victim within the third degree of consanguinity or affinity as calculated according to civil law." This includes parents, siblings, grandchildren, great-grandchildren, nephews and nieces, grandparents, great-grandparents, aunts and uncles. Only those family members defined as a statutory relative of the victim are eligible to make a claim.

      In cases where the crime results in death, a dependent, a family member who assumes financial responsibility for medical and burial expenses, and survivors are eligible claimants. Dependents, as defined in Section 595.010(8), RSMo, are a "mother, father, spouse, spouse's mother, spouse's father, child, grandchild, adopted child, illegitimate child, niece or nephew, who is wholly or partially dependent for support upon and living with, but shall include children entitled to child support but not living with, the victim at the time of his injury or death. . ." Under this statutory definition, the dependent, except for children of divorced parents entitled to child support, must be living with the victim. A parent who does not live with the homicide victim is not a dependent under the statute, and could not make a claim for loss of support based upon being a dependent.

      Section 595.020.1(3)(c), RSMo, allows a survivor of a homicide victim who requires counseling as a direct result of the death of the victim to make a claim. A survivor is defined in Section 595.010(27), RSMo, as "the spouse, parent, legal guardian, grandparent, sibling or child of the deceased victim of the victim's household at the time of the crime." A survivor must also reside with the homicide victim to make a claim for counseling expenses.

    2. THE CRIME UPON WHICH THE CLAIM IS BASED

      For purposes of the Crime Victims' Compensation Fund, a crime is defined in Section 595.010(5), RSMo, as:

      an act committed in this state which, if committed by a mentally competent criminally responsible person who had no legal exemption or defense, would constitute a crime; provided that, such act involves the application of force or violence or the threat of force or violence by the offender upon the victim but shall include the crime of driving while intoxicated, vehicular manslaughter and hit and run; and provided, further, that no act involving the operation of a motor vehicle except driving while intoxicated, vehicular manslaughter and hit and run which results in injury to another shall constitute a crime . . . unless such injury was intentionally inflicted through the use of a motor vehicle. A crime shall also include an act of terrorism as defined in 18 U.S.C. Section 2331, which has been committed outside of the United States against a resident of Missouri.

      Injuries resulting from the crimes of driving while intoxicated, vehicular manslaughter, hit and run, and those accidents occurring from the intentional infliction of harm by use of a car are the only situations where an injury from a car is compensable.

      Crimes where only property is stolen or damaged are not compensable under this definition. Also, a victim cannot claim compensation for property loss sustained when a personal injury occurs.

      Awarding a crime victims' compensation claim is an administrative process, not a criminal one. The Program reviews the police report, requests prosecutorial input, and uses any other applicable documentation to make an administrative decision to award compensation for a crime. In determining whether a compensable crime occurred, a lesser burden of proof applies than the criminal standard of beyond a reasonable doubt. According to Section 595.025.3(1), RSMo, an alleged offender does not need to be apprehended for the victim to be eligible. If the offender is convicted of the crime upon which the claim is based, proof of the conviction serves as conclusive evidence a crime was committed.

      A Missouri resident who is the victim of a crime in another state may be eligible for compensation. However, a claim must first be made in the state where the crime occurred. If the victim does not meet that state's eligibility criteria only then can the victim apply for compensation with Missouri’s Program.

    3. REQUIREMENTS FOR ELIGIBILITY OF APPLICANTS
      1. Behavioral Requirements

        In addition to the requirements that pertain to the kind of claimants and the type of crimes covered by the Program, every individual applicant must meet certain eligibility requirements. These requirements are based on the victim's own actions and fulfillment of filing requirements under the statute.

        1. Reporting the Crime

          Section 595.030.2, RSMo, requires a victim to report the crime to the proper law enforcement agency within 48 hours after the occurrence, or in cases involving persons under 18, within 48 hours of the crime’s discovery. The Program may waive this requirement for good cause. Good cause would be if a victim was medically unable to make a claim within 48 hours. A victim filing a report after the time limit solely for compensation purposes rather than pursuing criminal justice does not constitute good cause. A victim continually residing in a certified domestic violence shelter for up to five days from the date of the crime may constitute good cause for delay in reporting the crime.

        2. Cooperation by Victim

          A victim has a statutory duty to cooperate with law enforcement to be eligible for compensation. Section 595.015.6, RSMo, requires a victim, claimant or dependent to cooperate with law enforcement officials in the apprehension and prosecution of the alleged offender unless the Department has found that the failure to cooperate was for good cause. The Program interprets this requirement to include such things as pressing charges against the alleged offender, appearing in court to testify and looking at mug shots. The Program sends a Law Enforcement Verification form to the law enforcement agency where the police report was filed. This form requests a copy of the police report and information from the police department to assist the Program in determining whether the victim cooperated. Also, a Prosecutorial Input form is sent to the prosecuting attorney to assist the Program in determining whether the victim cooperated in the prosecution of the alleged offender and whether or not restitution was ordered.

        3. Contributory Conduct by Victim

          Section 595.035.3, RSMo, requires the Department to determine whether the victim contributed to the infliction of the injury by consent, provocation, incitement or negligence. If contributory conduct exists, the Department may either reduce benefits or deny the claim. Contributory conduct has been interpreted to mean such things as the victim inciting the offender by using fighting words or physical acts. Contributory conduct also means knowingly riding in a vehicle with a person under the influence of drugs or alcohol. When examining contributory conduct on the part of the victim, the Department evaluates whether the victim could have reasonably avoided the incident. If a reasonable or prudent person would have avoided or removed themselves from the situation, the claim may be reduced or denied.

          Contributory conduct is not limited to an event immediately preceding the crime. It includes activities that occur in a series of events before the crime upon which the claim is based. If the victim committed some previous act that prompts a retaliatory act by the offender that becomes the basis of the claim, the claim may be denied.

          Claimants who file a claim for injuries received while in the commission of an illegal act are not eligible to receive compensation. For example, individuals injured while purchasing illegal drugs are not eligible for compensation.

          The Program reviews the police report to determine if the victim was in the commission of an illegal act at the time of the crime upon which the claim is based or if contributory conduct was present.

      2. Filing Requirements

        In addition to behavioral requirements, a victim or claimant must meet certain filing requirements as well. Filing requirements are time limits statutorily imposed upon victims and claimants filing an application for compensation and also the submission of necessary documentation for the determination of compensation.

        1. Filing for Compensation

          There is a statute of limitations on filing for compensation with the Crime Victims' Compensation Program. Under Section 595.025.2, RSMo, the application must be filed within two years of the crime date, or in cases involving persons under 18, within two years of discovery.

        2. Submission of Documentation Supporting Claim

          Section 595.015.4, RSMo, states that if the Department finds that an application does not contain the required information or the facts stated have not been substantiated, it must notify the claimant in writing of the specific additional items of information or materials required. The claimant has 30 days to supply the Department with the requested information.

  3. AWARDS AND DENIALS
    1. COSTS ELIGIBLE FOR REIMBURSEMENT FROM THE FUND

      The Fund must limit the eligible expenses to maintain its viability and to serve its purpose as a public, quasi-charitable fund.

      According to Section 595.030, RSMo, costs incurred by a victim or claimant eligible for compensation include medical expenses, counseling expenses, lost wages, funeral costs and loss of support. In order to receive compensation, a claimant must suffer at least a $50 "out-of-pocket" loss or have lost two continuous weeks of earnings from gainful employment. Out-of-pocket loss means unreimbursed or unreimbursable expenses or indebtedness reasonably incurred for medical care or other services such as burial or funeral expenses. The Fund does not pay for pain and suffering or property loss. Personal property seized by law enforcement as evidence in the crime that compensation is being sought may be compensated up to $250.

      Section 595.035.2, RSMo, states that the Fund is a payor of last resort. This means that all other sources of payment must be utilized before compensation is made from the Fund. Health insurance, auto insurance settlements, Medicaid or Medicare and any other sources of payment available to the victim are considered to be collateral sources and are deducted from the total expense that may be eligible for reimbursement under the crime victim law. However, if a claimant has a health insurance but still has out-of-pocket expenses because of deductibles or co-payments, those out-of-pocket costs may be eligible for reimbursement. Note that life insurance is not considered a collateral source.

    2. MAXIMUM AMOUNT OF AWARDS

      Under Section 595.030, RSMo, the maximum compensation benefit is $25,000. In addition, there are limits placed on specific expenses. Counseling expenses are limited to a maximum of $2,500. Funeral expenses are limited to $5,000. Lost wages are reimbursed up to a maximum of $200 per week. All of these expenses are included within the statutory maximum benefit of $25,000.

      Section 595.035.5, RSMo, mandates the Program cannot pay for any out-of-pocket expenses incurred more than three years following the date of the crime upon which the claim is based.

    3. INDEPENDENT VERIFICATION PROCEDURE

      The Program determines the expenses eligible for compensation. Only those reasonable crime-related expenses that the victim or claimant is being held financially responsible for are considered for payment. Each expense submitted by the claimant is independently verified to determine the actual out-of-pocket loss. The Program must also determine any other possible sources of payment.

      Independent verification also includes the Program’s review of medical records when a long gap between dates of treatment occurs or when the victim requests lost wages. Rule 8 CSR 50-6.010(3)(F) stipulates that the claimant shall file current medical reports covering treatment, diagnosis and prognosis, including an estimate of any permanent injury impairing claimant’s ability to secure gainful employment.

    4. DISTRIBUTION OF AWARD

      The Program determines the method of compensation payment. Payment is made on a prorated basis between all the providers if the victim incurs expenses amounting to more than $25,000. Rule 8 CSR 50-6.010(11)(B) governs the payout of awards. It reads that awards shall be one-time payments and that in disbursing an award the Program shall apply the proceeds in the following order:

      1. Attorney fees;
      2. Reimbursement for compensable out-of-pocket expenses;
      3. Lost wages from gainful employment the victim would have earned had the victim not been injured;
      4. Loss of financial Support from gainful employment that the victim would have supplied to legal dependents had the victim not died; and
      5. Outstanding medical and funeral expenses.

      If the victim or claimant is represented by legal counsel, attorney's fees are paid out of the amount awarded to the claimant and before any payment is made to providers or the claimant. Attorneys are compensated at a rate of $100 an hour or 15 percent of the total award; whichever is less.

    5. DENIAL OF COMPENSATION

      The claim will be denied if the Program finds the victim or claimant fails to meet either a behavioral or filing requirement. The Program must deny a claim if it was made solely on expenses not compensable from the Fund or made for expenses eligible for payment from collateral sources.

      If the claimant fails to provide the Department with the requested information within 30 days and does not request an extension of time, the claim must be denied for failure to provide the necessary information.

  4. PROCEDURE FOR APPEALS

    Once a decision to deny the claim is made by the Program, the claimant has 30 days from the date of the denial letter to appeal the decision by submitting a written request for a hearing or by supplying the requested documentation or information. Once the Department receives written notice from the claimant requesting a hearing, the case is scheduled on the next available docket at the local adjudication office closest to the victim’s or claimant's residence. First, a pre-conference is scheduled to determine the issues in dispute and discuss the Program's decision. If the issues cannot be resolved at that time, a formal hearing will be scheduled. The hearing will take place before an administrative law judge.

  5. SUBROGATION AND RESTITUTION

    Because the Crime Victims' Compensation Fund is a payor of last resort, any right of action accruing to the claimant to recover damages from the crime allows the state to recover payment made from the Crime Victims' Compensation Fund. If a victim or claimant receives restitution from any source for injuries or death resulting from the crime upon which the claim is based, the Program has a right of subrogation for the entire amount awarded to the claimant.

    If a claimant initiates any legal proceeding to recover restitution or damages related to the crime, or if the claimant enters into negotiations to receive any proceeds in settlement of a claim, the claimant must give the Program written notice within 15 days of the filing of the action or entering into negotiations. When such notice is provided, an attorney's fee is allowed up to 15 percent of the amount awarded by the Crime Victims' Compensation Program.

  6. CONCLUSION

    Each Crime Victims' Compensation staff member is assigned an area of the state and is responsible for the processing of claims in that area. Victims may contact the Program toll-free at (800) 347-6881 to determine the staff member assigned to their area.

    This document is only for guidance. If you have any questions about a particular case or need additional information, please contact the Crime Victims' Compensation Program.