November 6, 2008, Introduced by Rep. Condino and referred to the Committee on Judiciary.
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.
(c) One member who is a peace officer.
(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:
(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.
(c)
Any other person dependent for his or her principal
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, executor, 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 only eligible to be
paid for a sexual assault medical forensic examination under this
section if that examination includes all of the following
procedures:
(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.
(c) One or more of the following:
(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 inform the victim of a sexual
assault that all costs of a sexual assault medical forensic
examination shall be paid by 1 of the sources listed in subsection
(3). A health care provider shall explain to the victim of a sexual
assault all of the available options to pay the costs of a sexual
assault medical forensic examination and shall seek payment in
accordance with the victim's preference, if the victim expresses a
preference. If the victim does not or cannot express a preference,
the health care provider shall only seek payment under subsection
(3)(a) or (c).
(3) A health care provider shall seek payment for a sexual
assault medical forensic examination from 1 of the following
sources:
(a) The commission.
(b) The victim's insurance carrier, if any.
(c) Any other funding sources other than the victim.
(4) A health care provider shall not do any of the following:
(a) Send a bill to a victim of sexual assault for any part of
the cost of performing a sexual assault medical forensic
examination.
(b) Submit any claim for costs payable under this section for
performing a sexual assault medical forensic examination to the
victim's insurance carrier if the health care provider is paid by
the commission.
(c) Submit a claim for any costs payable under this section
for performing a sexual assault medical forensic examination to the
commission for payment if the health care provider is seeking
payment from the victim's insurance carrier.
(5) The commission shall pay a health care provider not more
than $1,200.00 for the cost of performing a medical forensic
examination on a victim of sexual assault, including, but not
limited to, the cost of 1 or more of the following:
(a) Use of an emergency room.
(b) Use of a clinic or office examination room.
(c) The sexual assault medical forensic examination and
related procedures and laboratory services.
(d) Dispensing pharmaceutical items related to the sexual
assault.
(6) A claim for compensation under subsection (5) shall be
submitted to the commission in a form and in the manner prescribed
by the commission.
(7) Except 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, and 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.
(8) 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.
(9) 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.
(c) "Sexual assault medical forensic examination" means that
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.
(c) Police records show that the crime was reported promptly
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 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.
(c) From public funds, 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.
(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 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.