HB-6602, As Passed House, November 13, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 6602

A bill to amend 1976 PA 223, entitled

"An act to create an agency concerned with crime victim services;

to prescribe its powers and duties; to provide compensation to

certain victims of crimes; to provide for the promulgation of

rules; and to provide for penalties,"

by amending sections 2, 4, 5, 10, and 11 (MCL 18.352, 18.354,

18.355, 18.360, and 18.361), as amended by 1996 PA 519, and by

adding section 5a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 2. (1) The crime victims compensation board formerly

created within the department of management and budget under this

section is renamed the crime victim services commission, which

shall continue as the successor agency of the board in all respects

and for all purposes. Office budget development, procurement, and

related management functions shall be performed by the department

of ~~management and budget~~ community health.

(2) Members of the crime victims compensation board shall

continue in office as commission members for their unexpired terms.

The commission shall consist of 5 members as follows, of whom not

more than 3 shall belong to the same political party and who shall

be appointed by the governor with the advice and consent of the

senate:

(a) One member admitted to the practice of law in this state

for not less than 5 years immediately preceding his or her

appointment.

(b) One member who is a county prosecuting attorney.

(d) One member who is a member of the medical profession.

(e) One member who is a community-based victim advocate.

(3) A member's term of office shall be 3 years, except that of

the 2 members appointed to satisfy the expanded membership

requirement created by ~~the 1996 amendatory act that amended this~~

~~section~~ 1996 PA 519, 1 shall be appointed to serve an initial term

of 2 years and the other shall be appointed to serve an initial

term of 3 years. A member appointed to fill a vacancy occurring

otherwise than by expiration of a term shall be appointed for the

remainder of the unexpired term.

(4) The governor shall designate 1 commission member to serve

as chairperson at the governor's pleasure.

(5) The commission members shall be paid on a per diem basis

as determined by the legislature.

Sec. 4. (1) Except as provided in subsection (2), the

following persons are eligible for awards:

House Bill No. 6602 (H-1) as amended November 13, 2008

(a) A victim or an intervenor of a crime.

(b) A surviving spouse, parent, grandparent, child, sibling,

or grandchild of a victim of a crime who died as a direct result of

the crime.

~~support upon a victim of a crime who died as a direct result of the~~

~~crime.~~ A surviving person related to the victim by blood or

affinity, a guardian, [personal representative], or member of the same

household as

the victim.

(d) A health care provider seeking payment under section 5a.

(2) A person is not eligible to receive an award if the person

is either of the following:

(a) Criminally responsible for the crime.

(b) An accomplice to the crime.

(3) An award shall not be made on a claim unless the claimant

has incurred a minimum out-of-pocket loss of $200.00 or has lost at

least 2 continuous weeks' earnings or support, but the commission

may waive the limitations of this subsection in the case of a

claimant retired by reason of age or disability. If the claimant is

a victim of criminal sexual conduct in the first, second, or third

degree, the commission may waive the limitations of this

subsection. The commission shall waive this limitation for health

care providers seeking payment under section 5a.

Sec. 5. (1) A claim may be filed by the person eligible to

receive an award or, if a person is a minor, by his or her parent

or guardian.

(2) Except as provided in subsection (3), a claim shall be

filed by the claimant not later than 1 year after the occurrence of

the crime upon which the claim is based, except as follows:

(a) If police records show that a victim of criminal sexual

conduct in the first, second, or third degree was less than 18

years of age at the time of the occurrence and that the victim

reported the crime before attaining 19 years of age, a claim based

on that crime may be filed by a person listed in section 4(1)(a),

(b), or (c) not later than 1 year after the crime was reported.

(b) A claim may be filed within 1 year after the discovery by

a law enforcement agency that injuries previously determined to be

accidental, of unknown origin, or resulting from natural causes,

were incurred as the result of a crime.

(3) Upon petition by the claimant and for good cause shown,

the commission may extend the period in which a claim may be filed

under subsection (2).

(4) A claim shall be filed in the commission's office in

person or by mail. The commission shall accept for filing a claim

that is submitted by a person who is eligible and which alleges the

jurisdictional requirements set forth in this act and meets the

requirements as to form as approved by the commission.

(5) Upon filing of a claim by a person listed in section

4(1)(a), (b), or (c), the commission shall promptly notify the

prosecuting attorney of the county in which the crime is alleged to

have occurred. If, within 20 days after the notification, the

prosecuting attorney advises the commission that a criminal

prosecution is pending upon the same alleged crime and requests

that action by the commission be deferred, the commission shall

defer the proceedings until the criminal prosecution is concluded.

When the criminal prosecution is concluded, the prosecuting

attorney shall promptly notify the commission. This section does

not prohibit the commission from granting emergency awards pursuant

to section 9 or from paying a health care provider under section

5a.

Sec. 5a. (1) A health care provider is eligible to be paid for

a sexual assault medical forensic examination under this section

only if that examination includes all of the following:

(a) The collection of a medical history.

(b) A general medical examination, including, but not limited

to, the use of laboratory services and the dispensing of prescribed

pharmaceutical items.

(i) A detailed oral examination.

(ii) A detailed anal examination.

(iii) A detailed genital examination.

(d) Administration of a sexual assault evidence kit under

section 21527 of the public health code, 1978 PA 368, MCL

333.21527, and related medical procedures and laboratory and

pharmacological services.

(2) A health care provider shall not submit a bill for any

portion of the costs of a sexual assault medical forensic

examination to the victim of the sexual assault, including any

insurance deductible or co-pay, denial of claim by an insurer, or

any other out-of-pocket expense.

(3) A health care provider seeking payment under this section

for a sexual assault medical forensic examination shall do all of

the following:

(a) Advise the victim, orally and in writing, that a claim

shall not be submitted to his or her insurance carrier without his

or her express written consent, and that he or she may decline to

consent if he or she believes that submitting a claim to the

insurance carrier would substantially interfere with his or her

personal privacy or safety.

(b) If the victim gives his or her consent as provided under

subdivision (a), submit a claim for the cost of a sexual assault

medical forensic examination to the victim's insurance carrier,

including, but not limited to, medicaid and medicare.

(4) A health care provider may seek payment from 1 or both of

the following if reimbursement cannot be obtained from the victim's

insurance or insurance is unavailable:

(a) The commission under this section.

(b) From another entity other than the victim.

(5) A health care provider that is reimbursed for a sexual

assault medical forensic examination by a victim's insurance

carrier shall not submit to the commission any portion of the claim

reimbursable by the insurance carrier.

(6) A health care provider that is reimbursed for a sexual

assault medical forensic examination by another entity shall not

submit to the commission any portion of the claim reimbursable by

the other entity.

(7) The commission shall pay a health care provider not more

than $1,200.00 for the cost of performing a sexual assault medical

forensic examination, including, but not limited to, the cost of 1

or more of the following:

(a) Not more than $800.00 for the use of an emergency room,

clinic, or examination room, and the sexual assault medical

forensic examination and related procedures other than services and

items described in subdivisions (b) and (c).

(b) Not more than $250.00 for laboratory services.

related to the sexual assault.

(8) A claim for compensation under subsection (7) shall be

submitted to the commission in a form and in the manner prescribed

by the commission.

(9) Except with the victim's consent or as otherwise provided

in this subsection, information collected by the commission under

this section that identifies a victim of sexual assault is exempt

from disclosure under the freedom of information act, 1976 PA 446,

MCL 15.231 to 15.246, shall not be obtained by subpoena or in

discovery, and is inadmissible as evidence in any civil, criminal,

or administrative proceeding. Information collected by the

commission under this section that identifies a victim of sexual

assault is confidential and shall only be used for the purposes

expressly provided in this act, including, but not limited to,

investigating and prosecuting a civil or criminal action for fraud

related to reimbursement provided by the commission under this

section.

(10) A victim of sexual assault shall not be required to

participate in the criminal justice system or cooperate with law

enforcement as a condition of being administered a sexual assault

medical forensic examination. For payments authorized under this

section, the victim's request for a sexual assault medical forensic

examination satisfies the requirements for prompt law enforcement

reporting and victim cooperation under sections 6 and 10.

(11) As used in this section:

(a) "Health care provider" means any of the following:

(i) A health professional licensed or registered under article

15 of the public health code, 1978 PA 368, MCL 333.16101 to

333.18838.

(ii) A health facility or agency licensed under article 17 of

the public health code, 1978 PA 368, MCL 333.20101 to 333.22260.

(iii) A local health department as that term is defined in

section 1105 of the public health code, 1978 PA 368, MCL 333.1105.

(b) "Sexual assault" means a criminal violation of sections

520a to 520l of the Michigan penal code, 1931 PA 328, MCL 750.520a

to 750.520l.

term as described in subsection (1)(a) to (d).

Sec. 10. An award shall not be made unless the investigation

of the claim verifies the following facts:

(a) A crime was committed.

(b) The crime directly resulted in personal physical injury

to, or death of, the victim.

to the proper authorities. An award ~~may~~ shall not be made ~~where~~ if

the police records show that the report was made more than 48 hours

after the occurrence of the crime unless ~~either~~ any of the

following circumstances apply:

(i) The crime was criminal sexual conduct committed against a

victim who was less than 18 years of age at the time of the

occurrence and the crime was reported before the victim attained 19

years of age.

(ii) The commission, for good cause shown, finds the delay was

justified.

(iii) The commission is making a payment under section 5a.

(d) That the crime did not occur while the victim was confined

in a federal, state, or local correctional facility.

Sec. 11. (1) An Except for a claim under section 5a, an award

made under this act shall be an amount not more than an out-of-

pocket loss, including indebtedness reasonably incurred for medical

or other services necessary as a result of the injury upon which

the claim is based, together with loss of earnings or support

resulting from the injury. The aggregate award under this act shall

not exceed $15,000.00 per claimant.

(2) Unless reduced under this act, an award made for loss of

earnings or support shall be in an amount equal to the actual loss

sustained. An award shall not exceed $200.00 for each week of lost

earnings or support.

(3) An award made for funeral expenses, including burial

expenses and grief counseling, shall be not less than $200.00 or

more than $2,000.00 for each victim. The award may include not more

than $500.00 to reimburse expenses for grief counseling for the

victim's spouse, child, parent, or sibling.

(4) An award for psychological counseling shall not exceed 26

hourly sessions per victim or intervenor. The award may include not

more than 8 family sessions that include any of the victim's or

intervenor's spouse, children, parents, or siblings who are not

criminally responsible for or an accomplice to the crime. The

maximum hourly reimbursement rate shall not exceed $80.00 per

hourly session for a therapist or counselor licensed or registered

to practice in this state, except that the maximum hourly

reimbursement rate shall not exceed $95.00 per hourly session for a

psychologist or physician licensed to practice in this state.

(5) An award shall be reduced by the amount of 1 or more of

the following payments received or to be received as a result of

the injury:

(a) From or on behalf of the person who committed the crime.

(b) From insurance, but not including disability or death

benefits paid or to be paid to a peace officer or a corrections

officer on account of injuries sustained in the course of

employment.

benefits paid or to be paid to a peace officer or a corrections

officer on account of injuries sustained in the course of

employment.

(d) From an emergency award under section 9.

(6) ~~The~~ In making a determination on a claim filed by a person

listed in section 4(1)(a), (b), or (c), the commission shall

determine whether the victim's misconduct contributed to his or her

injury and shall reduce the amount of the award or reject the claim

altogether, in accordance with the determination. The commission

may disregard for this purpose the victim's responsibility for his

or her own injury if the record shows that the injury was

attributable to the victim's efforts to prevent a crime or an

attempted crime from occurring in his or her presence or to

apprehend a person who had committed a crime in his or her

presence. As used in this subsection, "misconduct" includes but is

not limited to provocation of or participation in a crime

contemporaneous with or immediately preceding the injury.

(7) If Except for a claim under section 5a, if the commission

finds that the claimant will not suffer serious financial hardship

as a result of the loss of earnings or support and the out-of-

pocket expenses incurred as a result of the injury if he or she is

not granted financial assistance, the commission shall deny the

award. In determining the serious financial hardship, the

commission shall consider all of the financial resources of the

claimant.

(8) If the commission determines that the payment of an award

will cause substantial unjust enrichment and economic benefit to a

person criminally responsible for the crime, the commission shall

deny the payment.