BILL ANALYSIS C.S.S.B. 1049 By: Whitmire Criminal Justice 4-11-95 Committee Report (Substituted) BACKGROUND In 1979, the legislature created the Texas Crime Victims' Compensation Fund and established guidelines for the reimbursement of certain expenses to victims of violent crime who are unable to recover those losses from insurance or other sources. PURPOSE As proposed, C.S.S.B. 1049 sets forth regulations regarding compensation for health care services for certain claimants or victims of criminal acts, including expanding the benefits available to victims of violent crime; provides civil and administrative penalties. RULEMAKING AUTHORITY It is the committee's opinion that rulemaking authority is granted to the attorney general in SECTION 1 (Article 56.42(c), Code of Criminal Procedure) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 56B, Code of Criminal Procedure, as follows: Art. 56.31. SHORT TITLE: Crime Victims' Compensation Act. Art. 56.311. LEGISLATIVE FINDINGS. Sets forth legislative findings. Art. 56.32. DEFINITIONS. (a) Defines "household member." Redefines "child," "claimant," "collateral source," "criminally injurious conduct," "dependent," "immediate family member," "intervenor," "pecuniary loss," "personal injury," and "victim." (b) Provides that "claimant" does not include a service provider. (c) Provides that "victim" does not include a peace officer, a firefighter, or another individual whose employment includes the duty to protect the public while acting in the course and scope of the individual's employment. Art. 56.33. ADMINISTRATION; RULES. Requires the attorney general to include among the rules adopted, rules relating to the review of health care services subject to compensation. Makes a nonsubstantive change. Art. 56.34. COMPENSATION. (a) Makes no changes. (b) Requires the attorney general to establish whether, as a direct result of criminally injurious conduct a claimant or a victim suffered personal injury or death that resulted in a pecuniary loss for which the claimant or victim is not compensated from a collateral source. (c) Requires the attorney general to award compensation for health care services according to the medical fee guidelines prescribed by Title 5A, Labor Code. (d) Provides that the attorney general, a claimant, or a victim is not liable for health care service charges in excess of the medical fee guidelines. Requires a health care provider to accept compensation from the attorney general as payment in full for the charges in excess of the guidelines, unless an investigation of the charges by the attorney general determines that there is a health care justification for the deviation from the guidelines. (e) Provides that a claimant or victim is not liable for the balance of service charges left as a result of an adjustment of payment for the charges under Article 56.58. Makes conforming changes. Art. 56.35. TYPES OF ASSISTANCE. Makes conforming changes. Art. 56.36. APPLICATION. Makes conforming changes. Art. 56.37. TIME FOR FILING. Makes conforming changes. Art. 56.38. REVIEW; VERIFICATION. Requires a law enforcement agency, on request by the attorney general and within 14 business days after the date of the request, to release to the attorney general all reports for the purpose of allowing the attorney general to determine whether a claimant or victim qualified for an award and the extent of that qualification. Makes conforming changes. Art. 56.385. REVIEW OF HEALTH CARE SERVICES. (a) Authorizes the attorney general to review the actual or proposed health care services for which a claimant or victim seeks compensation in an application filed under Article 56.36. (b) Prohibits the attorney general from compensating a claimant or victim for health care services that the attorney general determines are not medically necessary. (c) Provides that the attorney general, a claimant, or a victim is not liable for a charge that is not medically necessary. Art. 56.39. MENTAL OR PHYSICAL EXAMINATION; AUTOPSY. Makes conforming changes. Art. 56.40. HEARINGS. Makes conforming changes. Art. 56.41. APPROVAL OF CLAIM. Requires the attorney general to approve an application for compensation if the attorney general finds by a preponderance of the evidence that grounds for compensation exist. Makes conforming changes. Art. 56.42. LIMITS ON COMPENSATION. (a) Created from existing Subsection (b). Provides that except as otherwise provided by this article, awards may not exceed $25,000. Deletes existing Subsection (a) setting forth circumstances under which a claimant is not entitled to compensation for pecuniary loss. (b) Authorizes the attorney general to award an additional $25,000 for extraordinary pecuniary losses, in addition to an award payable under Subsection (a), if the personal injury to a victim is catastrophic and results in a total and permanent disability to the victim for lost wages and certain readjustments or rehabilitation costs regarding the disability. (c) Authorizes the attorney general, by rule, to establish limitations on any other pecuniary loss compensated for under this subchapter. Art. 56.43. ATTORNEY FEES. Makes conforming changes. Art. 56.44. PAYMENTS. Authorizes the attorney general to make payments only to an individual who is a claimant or victim. Makes conforming changes. Art. 56.45. DENIAL OR REDUCTION OF AWARD. Authorizes the attorney general to deny or reduce an award otherwise payable if the claimant or victim was engaging in an activity that at the time of the criminally injurious conduct is prohibited by law or a rule made under law. Makes conforming changes. Art. 56.46. REPORTING OF CRIME. Makes conforming changes. Art. 56.47. RECONSIDERATION. Authorizes an order on reconsideration to require a refund of an award if the newly discovered evidence shows the claimant or victim to be ineligible for the award under Article 56.41 or 56.45. Art. 56.48. JUDICIAL REVIEW. Requires a suit requesting judicial review to be brought in the county where the injury or death occurred if the victim resided out of state at the time of the injury or death. Provides that the burden of proof is on the party who filed the notice of dissatisfaction, rather than on the claimant. Authorizes the court to award not more than 25 percent of the total recovery by the claimant or victim in attorney fees in the event of a review, rather than additional attorney fees. Makes conforming changes. Art. 56.49. EXEMPTION; ASSIGNABILITY. Makes no changes. Art. 56.50. EMERGENCY AWARD. Makes conforming changes. Art. 56.51. SUBROGATION. Makes a conforming change. Art. 56.52. NOTICE OF PRIVATE ACTION. Makes conforming changes. Art. 56.53. ANNUAL REPORT. Requires the attorney general to file the report within 100 days, rather than 60, after the end of the fiscal year. Art. 56.54. FUNDS. Provides that Section 403.095, Government Code, does not apply to the victims of crime auxiliary fund. Makes conforming changes. Art. 56.55. COURT COSTS. Makes conforming changes. Art. 56.56. DEPOSIT AND REMITTANCE OF COURT COSTS. Makes conforming changes. Art. 56.57. DEPOSIT BY COMPTROLLER; AUDIT. Makes conforming changes. Art. 56.58. ADJUSTMENT OF AWARDS AND PAYMENTS. (a) Created from existing text. (b) Provides that if the attorney general establishes a policy to adjust awards, the attorney general, the claimant, or the victim is not liable for the amount of charges incurred in excess of the adjusted amount for the service upon which the adjustment payment is based. (c) Provides that a service provider who accepts a payment that has been adjusted by a policy agrees to accept the adjusted payment in full for the services and is barred from legal action against the claimant or victim for collection. Art. 56.59. ATTORNEY GENERAL SUPERVISION OF COLLECTION OF COSTS; FAILURE TO COMPLY. Makes conforming changes. Art. 56.60. PUBLIC NOTICE. Requires each local law enforcement agency to inform a claimant or victim of criminally injurious conduct of the provisions of this subchapter and provide application forms, rather than only a victim who desires assistance. Art. 56.61. COMPENSATION FOR CERTAIN CRIMINALLY INJURIOUS CONDUCT PROHIBITED. Makes no changes. Art. 56.62. PUBLIC LETTER OF REPRIMAND. (a) Authorizes the attorney general to issue a letter of reprimand against an individual if the attorney general finds that the person has filed an application for benefits or claim for pecuniary loss that contains a statement or representation that the person knows to be false. (b) Requires the attorney general to give the person notice of the proposed action before issuing the letter. (c) Authorizes a person to challenge the denial of compensation and the issuance of a letter of reprimand in a hearing under the Administrative Procedure Act. (d) Provides that a letter of reprimand is public information. Art. 56.63. CIVIL PENALTY. (a) Subjects a person to a civil penalty between $2,500 and $25,000 for each application for benefits or claim for pecuniary loss that is filed by the person or is filed as a result of the person's conduct. (b) Requires the attorney general to institute and conduct the suit authorized by this section on behalf of the state. (c) Requires a civil penalty to be deposited to the credit of the compensation to the victims of crime fund. (d) Provides that the civil penalty authorized by this section is in addition to any other civil, administrative, or criminal penalty provided by law. (e) Authorizes the attorney general to recover all expenses incurred by the attorney general in the investigation, institution, and prosecution of the suit. Art. 56.64. ADMINISTRATIVE PENALTY. (a) Sets forth amounts for which a person is liable to the attorney general if a person who presents to the attorney general or engages in conduct that results in the presentation to the attorney general of an application for compensation that contains a statement or representation the person knows to be false. (b) Sets forth conditions the attorney general is required to consider in determining the amount of the penalty to be assessed under Subsection (a)(3). (c) Authorizes the attorney general to issue a report that states the fact on which a determination of a violation is made and the attorney general's recommendation on the imposition of a penalty. (d) Requires the attorney general to give written notice of the report to the person. Sets forth requirements for the notice. (e) Authorizes the person to accept the determination and recommended penalty or make a request for a hearing on the occurrence, the amount, or both, not later than 20 days after the person receives the notice. (f) Requires the attorney general, by order, to approve the determination and impose the recommended penalty if the person accepts the determination and penalty. (g) Requires the attorney general to set a hearing and give notice to the person if the person requests a hearing or fails to respond to the notice. Requires the administrative law judge to make findings of facts and conclusions of law and issue a proposal for a decision. Authorizes the attorney general, by order, to find that a violation has occurred and impose a penalty or find that a violation has not occurred based on the findings of fact. (h) Requires the notice of the attorney general's order to include a statement of the right of the person to judicial review. (i) Requires the person to take certain actions within 30 days after the attorney general's order is final. (j) Authorizes a person who acts under Subsection (i)(3) to stay the enforcement of the penalty or request the court to stay enforcement of the penalty by following certain procedures within the 30-day period. (k) Authorizes the attorney general to file within five days after the copy of an affidavit under Subsection (j)(2) is received, a contest to the affidavit. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practicable and to stay the enforcement of the penalty on finding the alleged facts are true. Provides that the person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty or to give a supersedeas bond. (l) Authorizes the attorney general to file suit for collection of the penalty if the person does not pay the amount and the enforcement is not stayed. (m) Sets forth criteria regarding judicial review of the attorney general's order. (n) Authorizes the court to order the person to pay the full or reduced amount of the penalty if the court upholds the finding that a violation occurred. Requires the court to order that no penalty is owed if the court does not sustain the order that no penalty is owed. (o) Requires the court to order that the appropriate amount plus accrued interest be remitted to the person if the person paid an amount that is reduced or not upheld by the court. Sets forth the method for computing the rate of interest. Requires the court to order the release of the supersedeas bond if a person gave a supersedeas bond and the penalty is not upheld by the court. Requires the court to order the release of the supersedeas bond if the amount of penalty is reduced after the person pays the amount. (p) Requires a penalty collected to be sent to the comptroller and deposited to the credit of the compensation to victims of crime fund. (q) Subjects all proceedings under this section to Chapter 2001, Government Code. (r) Authorizes the attorney general to recover all expenses incurred by the attorney general in the investigation, institution, and prosecution of the suit, in addition to the administrative penalty. SECTION 2. Makes application of this Act prospective regarding compensation for criminally injurious conduct. SECTION 3. Repealer: Acts of the 73rd Legislature, 1993, Chapter 780, Sections 5 and 6 and Chapter 983, Sections 1, 3, and 4 (relating to the reenactment of a crime for commercial purposes -provisions requiring the victim of a crime to be the first one compensated-Utilization Review-Public Letter of Reprimand, Civil Penalty, and Administrative Penalty-Prospective clause, relating to filing claims for pecuniary loss). SECTION 4. Effective date: September 1, 1995. SECTION 5. Emergency clause.