DAR File No. 37380

Crime Victim Reparations, Administration

Rule R270-1

Award and Reparation Standards

Notice of Proposed Rule

(Amendment)

DAR File No.: 37380
Filed: 03/01/2013 02:58:52 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Section R270-1-15 is amended to authorize agency director minimal latitude in negotiating recovery settlements when such settlements appear to be in the best interest of the agency. This amendment allows the agency to collect settlements in a more timely fashion while also providing for the consideration of a proportionate amount of the attorney fees for obtaining the settlements. This amendment places into rule a practice policy the Board has already been using. Section R270-1-20 is amended to require that agency staff do not apply a "misconduct" ruling to scenarios wherein a victim may have been coerced or threatened to participate in any behavior which could otherwise be perceived as misconduct or to any crime of a sexual nature. This amendment is very "victim friendly" and promotes sensitivity toward the nature of sex crimes. The practice, which this amendment makes a rule, has been a matter of policy for the past several years. The Board chose to make it a rule to preserve the practice.

Summary of the rule or change:

Section R270-1-15 is amended to authorize agency director minimal latitude in negotiating recovery settlements when such settlements appear to be in the best interest of the agency. This amendment allows the agency to collect settlements in a more timely fashion while also providing for the consideration of a proportionate amount of the attorney fees for obtaining the settlements. The current method often requires the delay of the settlement while waiting for the next quarterly board meeting for the board to review and approve the settlement. Section R270-1-20 is amended to require that agency staff do not apply a "misconduct" ruling to scenarios wherein a victim may have been coerced or threatened to participate in any behavior which could otherwise be perceived as misconduct or to any crime of a sexual nature. This amendment is very "victim friendly" and promotes sensitivity toward the nature of sex crimes.

State statutory or constitutional authorization for this rule:

• Subsection 63M-7-515(1)
• Subsection 63M-7-506(1)(c)

Anticipated cost or savings to:

the state budget:

The change in Section R270-1-15 is anticipated to increase the amounts recovered by assuring personal injury law firms that they will receive a standard proportionate fee for securing settlements to which the agency has a recovery right. The change in Section R270-1-20 is not expected to have any effect on cost or savings as it has been a matter of policy for the past several years.

local governments:

Neither of these amendments should have any effect on local government due to the fact that these rules affect only the interaction and association of the agency with individual crime victims and/or those representing them. Local governments do not interact with the agency, agency's clients, or client representatives on these matters and therefore it is not foreseeable that local governments could be impacted.

small businesses:

Both of these amendments should have positive effects on small business by: 1) standardizing settlement negotiations with personal injury attorneys and creating more reliable and equitable payments to them; and 2) creating an environment that motivates the approval of claims under which more victims can receive service and or treatment for their crime related needs and service providers can receive payment from the agency for services they have provided to victims.

persons other than small businesses, businesses, or local governmental entities:

More victims of violent crimes will remain eligible for agency benefits and more victims may be able to recover expenses the agency can not cover through personal injury suits brought by attorneys more confident they will be paid.

Compliance costs for affected persons:

The only compliance costs associated with both of these amendments are placed upon the agency in complying with the rules as amended, which as previously mentioned, will not have a measurable affect.

Comments by the department head on the fiscal impact the rule may have on businesses:

Both of these amendments should have positive effects on small business by: 1) standardizing settlement negotiations with personal injury attorneys and creating more reliable and equitable payments to them; and 2) creating an environment that motivates the approval of claims under which more victims can receive service and or treatment for their crime related needs and service providers can receive payment from the agency for services they have provided to victims.

Gary Scheller, Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Crime Victim Reparations
AdministrationRoom 200
350 E 500 S
SALT LAKE CITY, UT 84111-3347

Direct questions regarding this rule to:

• Gary Scheller at the above address, by phone at 801-238-2362, by FAX at 801-533-4127, or by Internet E-mail at garys@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

04/15/2013

This rule may become effective on:

04/22/2013

Authorized by:

Gary Scheller, Director

R270. Crime Victim Reparations, Administration.

R270-1. Award and Reparation Standards.

R270-1-15. Subrogation.

A. Pursuant to Section 63M-7-519, subrogation monies collected from the perpetrator, insurance, etc., will be placed in the Crime Victim Reparations Trust Fund and will not be credited toward a particular victim or claimant award amount.

B. Pursuant to Subsection 63M-7-519(2)(a) and (b), in such instances where a settlement against a third party appears imminent, the Director may reduce by up to 33% the lesser of; (a) the amount paid by the state; or (b) the amount of the settlement. Reduction in excess of 33% shall be determined by the CVRA Board with the concurrence of the Director.

R270-1-20. Misconduct.

Pursuant to Subsections 63M-7-502(22) and 63M-7-512(1)(b) misconduct shall be considered conduct which contributed to the victim's injury or death or conduct which the victim could have reasonably foreseen could lead to injury or death. In determining whether the victim engaged in misconduct, the CVR staff shall consider any behavior of the victim that may have directly or indirectly contributed to the victim's injury or death including consent, provocation, verbal utterance, gesture, incitement, prior conduct of the victim or the ability of the victim to have reasonably avoided the incident upon which the claim is based. CVR staff shall not consider any behavior or action of any victim that is committed by the victim while under the duress or experience of threat, exploitation, coercion or any circumstance absent the victim's own willful desire to participate or any behavior or action committed or perceived to have been committed by the victim of any sex crime when determining whether the victim engaged in misconduct.

KEY: victim compensation, victims of crimes

Date of Enactment or Last Substantive Amendment: [January 7,]2013

Notice of Continuation: June 29, 2011

Authorizing, Implemented or Interpreted Law: 63M-7-501 et seq.