BILL REQ. #: S-1083.2
| State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 02/07/11. Referred to Committee on Human Services & Corrections.
AN ACT Relating to crime victims' compensation; amending RCW 7.68.020, 7.68.030, 7.68.075, 7.68.060, 7.68.070, 7.68.080, 7.68.125, 7.68.130, and 7.68.050; reenacting and amending RCW 7.68.070; adding new sections to chapter 7.68 RCW; creating new sections; repealing RCW 7.68.100; prescribing penalties; providing effective dates; providing an expiration date; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 It is the intent of the legislature that
eligible victims of crime who suffer bodily injury or death as a result
of violent crime receive benefits under the crime victims' compensation
program. To ensure benefits are provided, within funds available, to
the largest number of eligible victims, it is imperative to streamline
and provide flexibility in the administration of the program.
Therefore, the legislature intends to simplify the administration of
the benefits and services provided to victims of crime by separating
the administration of the benefits and services provided to crime
victims from the workers' compensation program under Title 51 RCW.
These changes are intended to clarify that the limited funding
available to help victims of crimes will be managed to help the largest
number of crime victims as possible.
Sec. 101 RCW 7.68.020 and 2006 c 268 s 1 are each amended to read
as follows:
The following words and phrases as used in this chapter have the
meanings set forth in this section unless the context otherwise
requires.
(1) "Department" means the department of labor and industries.
(2) "Criminal act" means an act committed or attempted in this
state which is: (a) Punishable as a federal offense that is comparable
to a felony or gross misdemeanor in this state; (b) punishable as a
felony or gross misdemeanor under the laws of this state; (c) an act
committed outside the state of Washington against a resident of the
state of Washington which would be compensable had it occurred inside
this state and the crime occurred in a state which does not have a
crime victims' compensation program, for which the victim is eligible
as set forth in the Washington compensation law; or (d) ((an act of
terrorism as defined in 18 U.S.C. Sec. 2331, as it exists on May 2,
1997, committed outside of the United States against a resident of the
state of Washington)) human trafficking as defined in 18 U.S.C. Sec.
77, 177, and 223, except as follows:
(i) The operation of a motor vehicle, motorcycle, train, boat, or
aircraft in violation of law does not constitute a "criminal act"
unless:
(A) The injury or death was intentionally inflicted;
(B) The operation thereof was part of the commission of another
nonvehicular criminal act as defined in this section;
(C) The death or injury was the result of the operation of a motor
vehicle after July 24, 1983, and a preponderance of the evidence
establishes that the death was the result of vehicular homicide under
RCW 46.61.520, or a conviction of vehicular assault under RCW
46.61.522, has been obtained((: PROVIDED, That)). In cases where a
probable criminal defendant has died in perpetration of vehicular
assault or, in cases where the perpetrator of the vehicular assault is
unascertainable because he or she left the scene of the accident in
violation of RCW 46.52.020 or, because of physical or mental infirmity
or disability the perpetrator is incapable of standing trial for
vehicular assault, the department may, by a preponderance of the
evidence, establish that a vehicular assault had been committed and
authorize benefits;
(D) The injury or death was caused by a driver in violation of RCW
46.61.502; or
(E) The injury or death was caused by a driver in violation of RCW
46.61.655(7)(a), failure to secure a load in the first degree;
(ii) Neither an acquittal in a criminal prosecution nor the absence
of any such prosecution is admissible in any claim or proceeding under
this chapter as evidence of the noncriminal character of the acts
giving rise to such claim or proceeding, except as provided for in
(((d))) (e)(i)(C) of this subsection;
(iii) Evidence of a criminal conviction arising from acts which are
the basis for a claim or proceeding under this chapter is admissible in
such claim or proceeding for the limited purpose of proving the
criminal character of the acts; and
(iv) Acts which, but for the insanity or mental irresponsibility of
the perpetrator, would constitute criminal conduct are deemed to be
criminal conduct within the meaning of this chapter.
(3) "Victim" means a person who suffers bodily injury or death as
a proximate result of a criminal act of another person, the victim's
own good faith and reasonable effort to prevent a criminal act, or his
or her good faith effort to apprehend a person reasonably suspected of
engaging in a criminal act. For the purposes of receiving benefits
pursuant to this chapter, "victim" is interchangeable with "employee"
or "worker" as defined in chapter 51.08 RCW as now or hereafter
amended.
(4) (("Child," "accredited school," "dependent," "beneficiary,"
"average monthly wage," "director," "injury," "invalid," "permanent
partial disability," and "permanent total disability" have the meanings
assigned to them in chapter 51.08 RCW as now or hereafter amended.)) "Gainfully employed" means engaging on a regular and
continuous basis in a lawful activity from which a person derives a
livelihood.
(5)
(((6))) (5) "Private insurance" means any source of recompense
provided by contract available as a result of the claimed injury or
death at the time of such injury or death, or which becomes available
any time thereafter.
(((7))) (6) "Public insurance" means any source of recompense
provided by statute, state or federal, available as a result of the
claimed injury or death at the time of such injury or death, or which
becomes available any time thereafter.
(7) "Accredited school" means a school or course of instruction
which is:
(a) Approved by the state superintendent of public instruction, the
state board of education, or the state board for community and
technical colleges; or
(b) Regulated or licensed as to course content by any agency of the
state or under any occupational licensing act of the state, or
recognized by the apprenticeship council under an agreement registered
with the apprenticeship council pursuant to chapter 49.04 RCW.
(8) "Average monthly wage" means the average annual wage as
determined under RCW 50.04.355 as now or hereafter amended divided by
twelve.
(9) "Beneficiary" means a husband, wife, registered domestic
partner, or child of a victim in whom shall vest a right to receive
payment under this chapter: PROVIDED, That a husband or wife of an
injured victim, living separate and apart in a state of abandonment,
regardless of the party responsible therefor, for more than one year at
the time of the injury or subsequently, shall not be a beneficiary. A
spouse who has lived separate and apart from the other spouse for the
period of two years and who has not, during that time, received, or
attempted by process of law to collect, funds for maintenance, shall be
deemed living in a state of abandonment.
(10) "Child" means every natural born child, posthumous child,
stepchild, child legally adopted prior to the injury, child born after
the injury where conception occurred prior to the injury, and dependent
child in the legal custody and control of the victim, all while under
the age of eighteen years, or under the age of twenty-three years while
permanently enrolled as a full-time student in an accredited school,
and over the age of eighteen years if the child is a dependent as a
result of a physical, mental, or sensory handicap.
(11) "Injury" means a sudden and tangible happening, of a traumatic
nature, producing an immediate or prompt result, and occurring from
without, and such physical conditions as result therefrom.
(12) "Invalid" means one who is physically or mentally
incapacitated from earning.
(13) "Permanent total disability" means loss of both legs, or arms,
or one leg and one arm, total loss of eyesight, paralysis, or other
condition permanently incapacitating the victim from performing any
work at any gainful occupation.
(14) "Temporary total disability" means any condition that
temporarily incapacitates a victim from performing any type of gainful
employment as certified by the victims attending physician.
(15) "Loss of financial support" means a partial replacement of
lost wages due to a temporary or permanent total disability.
NEW SECTION. Sec. 201 On all claims under this chapter,
claimants' written or electronic notices, orders, or warrants must be
forwarded directly to the claimant until such time as there has been
entered an order on the claim appealable to the department. Claimants'
written or electronic notices, orders, or warrants may be forwarded to
the claimant in care of a representative before an order has been
entered if the claimant sets forth in writing the name and address of
the representative to whom the claimant desires this information to be
forwarded.
NEW SECTION. Sec. 202 The department may, at any time, on
receipt of written or electronic authorization, transmit amounts
payable to a claimant or to the account of such person in a bank or
other financial institution regulated by state or federal authority.
NEW SECTION. Sec. 203 (1) Except as provided in RCW 43.20B.720,
72.09.111, 74.20A.260, and 51.32.380, no money paid or payable under
this chapter shall, before the issuance and delivery of the check or
warrant, or disbursement of electronic funds or electronic payment, be
assigned, charged, or taken in execution, attached, garnished, or pass
or be paid to any other person by operation of law, any form of
voluntary assignment, or power of attorney. Any such assignment or
charge is void unless the transfer is to a financial institution at the
request of a victim or other beneficiary and made in accordance with
section 204 of this act.
(2)(a) If any victim suffers an injury and dies from it before he
or she receives payment of any monthly installment covering loss of
financial support for any period of time before his or her death, the
amount of the monthly payment shall be paid to the surviving spouse or
the child or children if there is no surviving spouse. If there is no
surviving spouse and no child or children, the amount of the monthly
payment shall be paid by the department and distributed consistent with
the terms of the decedent's will or, if the decedent dies intestate,
consistent with the terms of RCW 11.04.015.
(b) Any application for compensation under this subsection (2)
shall be filed with the department within one year of the date of
death. The department may satisfy its responsibilities under this
subsection (2) by sending any payment due in the name of the decedent
and to the last known address of the decedent.
(3) Any victim or beneficiary receiving benefits under this chapter
who is subsequently confined in, or who subsequently becomes eligible
for benefits under this chapter while confined in, any institution
under conviction and sentence shall have all payments of the
compensation canceled during the period of confinement. After
discharge from the institution, payment of benefits due afterward shall
be paid if the victim or beneficiary would, except for the provisions
of this subsection (3), otherwise be eligible for them.
NEW SECTION. Sec. 204 Any victim or other recipient of benefits
under this chapter may elect to have any payments due transferred to
such person's account in a financial institution for either: (1)
Credit to the recipient's account in such financial institution; or (2)
immediate transfer therefrom to the recipient's account in any other
financial institution. A single warrant may be drawn in favor of such
financial institution, for the total amount due the recipients
involved, and written directions provided to such financial institution
of the amount to be credited to the account of a recipient or to be
transferred to an account in another financial institution for such
recipient. The issuance and delivery by the disbursing officer of a
warrant in accordance with the procedure set forth in this section and
proper endorsement thereof by the financial institution shall have the
same legal effect as payment directly to the recipient.
For the purposes of this section "financial institution" shall have
the meaning given in RCW 41.04.240 as now or hereafter amended.
NEW SECTION. Sec. 205 (1) The department may require that the
victim present himself or herself for a special medical examination by
a physician or physicians selected by the department, and the
department may require that the victim present himself or herself for
a personal interview. The costs of the examination or interview,
including payment of any reasonable travel expenses, shall be paid by
the department.
(2) The director may establish a medical bureau within the
department to perform medical examinations under this section.
(3) Where a dispute arises from the handling of any claim before
the condition of the injured victim becomes fixed, the victim may
request the department to resolve the dispute or the director may
initiate an inquiry on his or her own motion. In these cases, the
department shall proceed as provided in this section and an order shall
issue in accordance with RCW 51.52.050.
Sec. 206 RCW 7.68.030 and 2009 c 479 s 7 are each amended to read
as follows:
(1) It shall be the duty of the director to establish and
administer a program of benefits to innocent victims of criminal acts
within the terms and limitations of this chapter. In so doing, the
director shall, in accordance with chapter 34.05 RCW, adopt rules and
regulations necessary to the administration of this chapter((, and the
provisions contained in chapter 51.04 RCW, including but not limited to
RCW 51.04.020, 51.04.030, 51.04.040, 51.04.050 and 51.04.100 as now or
hereafter amended, shall apply where appropriate in keeping with the
intent of this chapter)). The director may apply for and, subject to
appropriation, expend federal funds under Public Law 98-473 and any
other federal program providing financial assistance to state crime
victim compensation programs. The federal funds shall be deposited in
the state general fund and may be expended only for purposes authorized
by applicable federal law.
(2) The director shall:
(a) Establish and adopt rules governing the administration of this
title;
(b) Regulate the proof of accident and extent thereof, the proof of
death, and the proof of relationship and the extent of dependency;
(c) Supervise the medical, surgical, and hospital treatment to the
intent that it may be in all cases efficient and up to the recognized
standard of modern surgery;
(d) Issue proper receipts for moneys received and certificates for
benefits accrued or accruing;
(e) Designate a medical director who is licensed under chapter
18.57 or 18.71 RCW.
(f) Supervise the providing of prompt and efficient care and
treatment, including care provided by physician assistants governed by
the provisions of chapters 18.57A and 18.71A RCW, acting under a
supervising physician, including chiropractic care, and including care
provided by licensed advanced registered nurse practitioners, to
victims at the least cost consistent with promptness and efficiency,
without discrimination or favoritism, and with as great uniformity as
the various and diverse surrounding circumstances and locations of
industries will permit and to that end shall, from time to time,
establish and adopt and supervise the administration of printed forms,
electronic communications, rules, regulations, and practices for the
furnishing of such care and treatment: PROVIDED, That the medical
coverage decisions of the department do not constitute a "rule" as used
in RCW 34.05.010(16), nor are such decisions subject to the rule-making
provisions of chapter 34.05 RCW except that criteria for establishing
medical coverage decisions shall be adopted by rule: PROVIDED FURTHER,
That the department may recommend to a victim particular health care
services and providers where specialized treatment is indicated or
where cost-effective payment levels or rates are obtained by the
department: AND PROVIDED FURTHER, That the department may enter into
contracts for goods and services including, but not limited to, durable
medical equipment so long as statewide access to quality service is
maintained for injured workers;
(g) In consultation with interested persons, establish and, in his
or her discretion, periodically change as may be necessary, and make
available a fee schedule of the maximum charges to be made by any
physician, surgeon, chiropractor, hospital, druggist, licensed advanced
registered nurse practitioner, and physician assistants as defined in
chapters 18.57A and 18.71A RCW, acting under a supervising physician or
other agency or person rendering services to victims. The department
shall coordinate with other state purchasers of health care services to
establish as much consistency and uniformity in billing and coding
practices as possible, taking into account the unique requirements and
differences between programs. No service covered under this title,
including services provided to victims, whether aliens or other
victims, who are not residing in the United States at the time of
receiving the services, shall be charged or paid at a rate or rates
exceeding those specified in such fee schedule, and no contract
providing for greater fees shall be valid as to the excess. The
establishment of such a schedule, exclusive of conversion factors, does
not constitute "agency action" as used in RCW 34.05.010(3), nor does
such a fee schedule constitute a "rule" as used in RCW 34.05.010(16);
(h) Make a record of the commencement of every disability and the
termination thereof and, when bills are rendered for the care and
treatment of injured victims, shall approve and pay those which conform
to the adopted rules, regulations, established fee schedules, and
practices of the director and may reject any bill or item thereof
incurred in violation of the principles laid down in this section or
the rules, regulations, or the established fee schedules and rules and
regulations adopted under it.
(3) The director and his or her authorized assistants:
(a) Have power to issue subpoenas to enforce the attendance and
testimony of witnesses and the production and examination of books,
papers, photographs, tapes, and records before the department in
connection with any claim made to the department or any billing
submitted to the department. The superior court has the power to
enforce any such subpoena by proper proceedings;
(b)(i) May apply for and obtain a superior court order approving
and authorizing a subpoena in advance of its issuance. The application
may be made in the county where the subpoenaed person resides or is
found, or the county where the subpoenaed records or documents are
located, or in Thurston county. The application must (A) state that an
order is sought pursuant to this subsection; (B) adequately specify the
records, documents, or testimony; and (C) declare under oath that an
investigation is being conducted for a lawfully authorized purpose
related to an investigation within the department's authority and that
the subpoenaed documents or testimony are reasonably related to an
investigation within the department's authority.
(ii) Where the application under this subsection (3)(b) is made to
the satisfaction of the court, the court must issue an order approving
the subpoena. An order under this subsection constitutes authority of
law for the agency to subpoena the records or testimony.
(iii) The director and his or her authorized assistants may seek
approval and a court may issue an order under this subsection without
prior notice to any person, including the person to whom the subpoena
is directed and the person who is the subject of an investigation.
(4) In all hearings, actions, or proceedings before the department,
any physician or licensed advanced registered nurse practitioner having
theretofore examined or treated the claimant may be required to testify
fully regarding such examination or treatment, and shall not be exempt
from so testifying by reason of the relation of the physician or
licensed advanced registered nurse practitioner to the patient.
Sec. 207 RCW 7.68.075 and 1977 ex.s. c 302 s 6 are each amended
to read as follows:
Notwithstanding the provisions of any of the sections, as now or
hereafter amended, of Title 51 RCW which are made applicable to this
chapter, the marital status of all victims shall be deemed to be fixed
as of the date of the criminal act. All references to the child or
children living or conceived of the victim in this chapter shall be
deemed to refer to such child or children as of the date of the
criminal act unless the context clearly indicates the contrary.
Payments for or on account of any such child or children shall
cease when such child is no longer a "child" ((as defined in RCW
51.08.030, as now or hereafter amended,)) or on the death of any such
child whichever occurs first.
Payments to the victim or surviving spouse for or on account of any
such child or children shall be made only when the victim or surviving
spouse has legal custody of any such child or children. Where the
victim or surviving spouse does not have such legal custody any
payments for or on account of any such child or children shall be made
to the person having legal custody of such child or children and the
amount of payments shall be subtracted from the payments which would
have been due the victim or surviving spouse had legal custody not been
transferred to another person. It shall be the duty of any person or
persons receiving payments because of legal custody of any child to
immediately notify the department of any change in such legal custody.
Sec. 301 RCW 7.68.060 and 2001 c 153 s 1 are each amended to read
as follows:
(1) Except for ((the purposes of applying for benefits under this
chapter, the rights, privileges, responsibilities, duties, limitations
and procedures contained in RCW 51.28.020, 51.28.030, 51.28.040 and
51.28.060 shall apply: PROVIDED, That except for)) applications
received pursuant to subsection (((4))) (6) of this section, no
compensation of any kind shall be available under this chapter if:
(a) An application for benefits is not received by the department
within two years after the date the criminal act was reported to a
local police department or sheriff's office or the date the rights of
((dependents or)) beneficiaries accrued, unless the director has
determined that "good cause" exists to expand the time permitted to
receive the application. "Good cause" shall be determined by the
department on a case-by-case basis and may extend the period of time in
which an application can be received for up to five years after the
date the criminal act was reported to a local police department or
sheriff's office or the date the rights of ((dependents or))
beneficiaries accrued; or
(b) The criminal act is not reported by the victim or someone on
his or her behalf to a local police department or sheriff's office
within twelve months of its occurrence or, if it could not reasonably
have been reported within that period, within twelve months of the time
when a report could reasonably have been made. In making
determinations as to reasonable time limits, the department shall give
greatest weight to the needs of the victims.
(2) ((This section shall apply only to criminal acts reported after
December 31, 1985.)) No person or spouse, child, or dependent of such person is
eligible for benefits under this chapter when the injury for which
benefits are sought, was:
(3)
(a) The result of consent, provocation, or incitement by the
victim, unless an injury resulting from a criminal act caused the death
of the victim;
(b) Sustained while the crime victim was engaged in the attempt to
commit, or the commission of, a felony; or
(c) Sustained while the victim was confined in any county or city
jail, federal jail or prison or in any other federal institution, or
any state correctional institution maintained and operated by the
department of social and health services or the department of
corrections, prior to release from lawful custody; or confined or
living in any other institution maintained and operated by the
department of social and health services or the department of
corrections.
(3) No person or spouse, child, or dependent of such person is
eligible for benefits under this chapter where the person making a
claim for such benefits has refused to give reasonable cooperation to
state or local law enforcement agencies in their efforts to apprehend
and convict the perpetrator of the criminal act which gave rise to the
claim.
(4) A victim is not eligible for benefits under this chapter if he
or she:
(a) Has been convicted of a felony offense within five years
preceding the criminal act for which they are applying where the felony
offense is a violent offense under RCW 9.94A.030 or a crime against
persons under RCW 9.94A.411, or is convicted of such a felony offense
after the criminal act for which they are applying; and
(b) Has not completely satisfied all legal financial obligations
owed.
(5) Because victims of childhood criminal acts may repress
conscious memory of such criminal acts far beyond the age of eighteen,
the rights of adult victims of childhood criminal acts shall accrue at
the time the victim discovers or reasonably should have discovered the
elements of the crime. In making determinations as to reasonable time
limits, the department shall give greatest weight to the needs of the
victim.
(((4) A right to)) (6)(a) Benefits under this chapter ((is)) are
available to any victim of a person against whom the state initiates
proceedings under chapter 71.09 RCW. The right created under this
subsection shall accrue when the victim is notified of proceedings
under chapter 71.09 RCW or the victim is interviewed, deposed, or
testifies as a witness in connection with the proceedings. An
application for benefits under this subsection must be received by the
department within two years after the date the victim's right accrued
unless the director determines that good cause exists to expand the
time to receive the application. The director shall determine "good
cause" on a case-by-case basis and may extend the period of time in
which an application can be received for up to five years after the
date the right of the victim accrued. Benefits under this subsection
shall be limited to compensation for costs or losses incurred on or
after the date the victim's right accrues for a claim allowed under
this subsection.
(b) A person identified as the "minor" in the charge of commercial
sexual abuse of a minor under RCW 9.68A.100, promoting commercial
sexual abuse of a minor under RCW 9.68A.101, or promoting travel for
commercial sexual abuse of a minor under RCW 9.68A.102 is considered a
victim of a criminal act for the purpose of the right to benefits under
this chapter even if the person is also charged with prostitution under
RCW 9A.88.030.
NEW SECTION. Sec. 302 (1)(a) Where a victim is eligible for
compensation under this chapter he or she shall file with the
department his or her application for such, together with the
certificate of the physician or licensed advanced registered nurse
practitioner who attended him or her. An application form developed by
the department shall include a notice specifying the victim's right to
receive health services from a physician or licensed advanced
registered nurse practitioner utilizing his or her private or public
insurance or if no insurance, of the victim's choice under section 505
of this act.
(b) The physician or licensed advanced registered nurse
practitioner who attended the injured victim shall inform the injured
victim of his or her rights under this chapter and lend all necessary
assistance in making this application for compensation and such proof
of other matters as required by the rules of the department without
charge to the victim.
(2) If the application required by this section is filed on behalf
of the victim by the physician who attended the victim, the physician
may transmit the application to the department electronically.
NEW SECTION. Sec. 303 Where death results from injury the
parties eligible for compensation under this chapter, or someone in
their behalf, shall make application for the same to the department,
which application must be accompanied with proof of death and proof of
relationship showing the parties to be eligible for compensation under
this chapter, certificates of attending physician or licensed advanced
registered nurse practitioner, if any, and such proof as required by
the rules of the department.
NEW SECTION. Sec. 304 If change of circumstances warrants an
increase or rearrangement of compensation, like application shall be
made therefor. Where the application has been granted, compensation
and other benefits if in order shall be allowed for periods of time up
to sixty days prior to the receipt of such application.
NEW SECTION. Sec. 305 If injury or death results to a victim
from the deliberate intention of the victim himself or herself to
produce such injury or death, or while the victim is engaged in the
attempt to commit, or the commission of, a felony, neither the victim
nor the widow, widower, child, or dependent of the victim shall receive
any payment under this chapter.
If injury or death results to a victim from the deliberate
intention of a beneficiary of that victim to produce the injury or
death, or if injury or death results to a victim as a consequence of a
beneficiary of that victim engaging in the attempt to commit, or the
commission of, a felony, the beneficiary shall not receive any payment
under this chapter.
An invalid child, while being supported and cared for in a state
institution, shall not receive compensation under this chapter.
No payment shall be made to or for a natural child of a deceased
victim and, at the same time, as the stepchild of a deceased victim.
NEW SECTION. Sec. 306 Except as otherwise provided by treaty or
this chapter, whenever compensation is payable to a beneficiary who is
an alien not residing in the United States, the department shall pay
the compensation to which a resident beneficiary is eligible under this
chapter. But if a nonresident alien beneficiary is a citizen of a
government having a compensation law which excludes citizens of the
United States, either resident or nonresident, from partaking of the
benefit of such law in as favorable a degree as herein extended to
nonresident aliens, he or she shall receive no compensation. No
payment shall be made to any beneficiary residing in any country with
which the United States does not maintain diplomatic relations when
such payment is due.
NEW SECTION. Sec. 307 Physicians or licensed advanced registered
nurse practitioners examining or attending injured victims under this
chapter shall comply with rules and regulations adopted by the
director, and shall make such reports as may be requested by the
department upon the condition or treatment of any such victim, or upon
any other matters concerning such victims in their care. Except under
RCW 49.17.210 and 49.17.250, all medical information in the possession
or control of any person and relevant to the particular injury in the
opinion of the department pertaining to any victim whose injury is the
basis of a claim under this chapter shall be made available at any
stage of the proceedings to the claimant's representative and the
department upon request, and no person shall incur any legal liability
by reason of releasing such information.
Sec. 401 RCW 7.68.070 and 2010 c 289 s 6 and 2010 c 122 s 1 are
each reenacted and amended to read as follows:
The ((right to)) eligibility for benefits under this chapter and
the amount thereof will be governed insofar as is applicable by the
provisions contained in this chapter ((51.32 RCW except as provided in
this section, provided that no more than fifty thousand dollars shall
be paid per claim:)).
(1) ((The provisions contained in RCW 51.32.015, 51.32.030,
51.32.072, 51.32.073, 51.32.180, 51.32.190, and 51.32.200 are not
applicable to this chapter.)) Each victim injured as a result of a criminal act, including
criminal acts committed between July 1, 1981, and January 1, 1983, or
the victim's family or ((
(2)dependents)) beneficiary in case of death of
the victim, are ((entitled to)) eligible for benefits in accordance
with this chapter, subject to the limitations under RCW 7.68.015.
((The rights, duties, responsibilities, limitations, and procedures
applicable to a worker as contained in RCW 51.32.010 are applicable to
this chapter.)) Eligibility for benefits under this chapter will be governed
by its provisions, provided that no more than fifty thousand dollars
shall be paid per claim. Benefits may include a combination of burial
expenses, loss of financial support, and medical expenses.
(3)(a) The limitations contained in RCW 51.32.020 are applicable to
claims under this chapter. In addition, no person or spouse, child, or
dependent of such person is entitled to benefits under this chapter
when the injury for which benefits are sought, was:
(i) The result of consent, provocation, or incitement by the
victim, unless an injury resulting from a criminal act caused the death
of the victim;
(ii) Sustained while the crime victim was engaged in the attempt to
commit, or the commission of, a felony; or
(iii) Sustained while the victim was confined in any county or city
jail, federal jail or prison or in any other federal institution, or
any state correctional institution maintained and operated by the
department of social and health services or the department of
corrections, prior to release from lawful custody; or confined or
living in any other institution maintained and operated by the
department of social and health services or the department of
corrections.
(b) A person identified as the "minor" in the charge of commercial
sexual abuse of a minor under RCW 9.68A.100, promoting commercial
sexual abuse of a minor under RCW 9.68A.101, or promoting travel for
commercial sexual abuse of a minor under RCW 9.68A.102 is considered a
victim of a criminal act for the purpose of the right to benefits under
this chapter even if the person is also charged with prostitution under
RCW 9A.88.030.
(4) The benefits established upon the death of a worker and
contained in RCW 51.32.050 shall be the benefits obtainable under this
chapter and provisions relating to payment contained in that section
shall equally apply under this chapter, except that:
(a)
(a) Benefits payable for temporary total disability that results in
a loss of financial support shall not exceed fifteen thousand dollars.
(b) Benefits payable for a permanent total disability or fatality
that results in a loss of financial support shall not exceed forty
thousand dollars. After at least twelve monthly payments have been
paid, the department shall have the sole discretion to make a final
lump sum payment of the balance remaining.
(c) Benefits for disposition of remains or burial expenses shall
not exceed five thousand seven hundred fifty dollars per claim.
(2) If the victim was not gainfully employed at the time of the
criminal act, no loss of financial support will be paid to the victim
or any beneficiaries.
(3) No victim or beneficiary shall receive compensation for or
during the day on which the injury was received.
(4) If a victim's employer continues to pay the victim wages that
he or she was earning at the time of the crime, the victim shall not
receive any payment for loss of wages.
(5) When the director determines that a temporary total disability
results in a loss of financial support, the victim shall receive
monthly subject to subsection (1) of this section, during the period of
disability sixty percent of the victim's monthly wage up to a maximum
amount of one hundred percent of the state's average monthly wage as
defined in RCW 7.68.020. The minimum monthly payment shall be no less
than five hundred dollars. Monthly wages shall be based upon employer
wage statements, employment security records, or documents reported to
and certified by the internal revenue service. Monthly wages must be
determined using the actual documented monthly wage or averaging the
total wages earned for up to twelve successive calendar months
preceding the injury. In cases where the victim's wages and hours are
fixed, they shall be determined by multiplying the daily wage the
victim was receiving at the time of the injury:
(a) By five, if the victim was normally employed one day a week;
(b) By nine, if the victim was normally employed two days a week;
(c) By thirteen, if the victim was normally employed three days a
week;
(d) By eighteen, if the victim was normally employed four days a
week;
(e) By twenty-two, if the victim was normally employed five days a
week;
(f) By twenty-six, if the victim was normally employed six days a
week; or
(g) By thirty, if the victim was normally employed seven days a
week.
(6) When the director determines that a permanent total disability
or death results in a loss of financial support the victim or eligible
spouse shall receive the monthly payments established in this
subsection, not to exceed forty thousand dollars or the limits
established in this chapter.
(7) If the director determines that the victim is voluntarily
retired and is no longer attached to the workforce, benefits shall not
be paid under this section.
(8) In the case of death, if there is no eligible spouse, benefits
shall be paid to the child or children of the deceased victim. If
there is no spouse or children, no payments shall be made under this
section. If the spouse remarries before this benefit is paid in full
benefits shall be paid to the victim's child or children and the spouse
shall not receive further payment. If there is no child or children no
further payments will be made.
(9) The benefits for disposition of remains or burial expenses
shall not exceed five thousand seven hundred fifty dollars per
claim((;)) and
(((b) An application for benefits relating to payment for burial
expenses, pursuant to this subsection, must be received within twelve
months of the date upon which the death of the victim is officially
recognized as a homicide. If there is a delay in the recovery of
remains or the release of remains for burial, application for benefits
must be received within twelve months of the date of the release of the
remains for burial)) to receive reimbursement for expenses related to
the disposition of remains or burial, the department must receive an
itemized statement from a provider of services within twelve months of
the date upon which the death of the victim is officially recognized as
a homicide. If there is a delay in the recovery of remains or the
release of remains for disposition or burial, an itemized statement
from a provider of services must be received within twelve months of
the date of the release of the remains.
(((5) The benefits established in RCW 51.32.060 for permanent total
disability proximately caused by the criminal act shall be the benefits
obtainable under this chapter, and provisions relating to payment
contained in that section apply under this chapter, except that if a
victim becomes permanently and totally disabled as a proximate result
of the criminal act, the victim shall receive monthly during the period
of the disability the following percentages, where applicable, of the
average monthly wage determined as of the date of the criminal act
pursuant to RCW 51.08.018:)) (10) Any person who is responsible for the victim's
injuries, or who would otherwise be unjustly enriched as a result of
the victim's injuries, shall not be a beneficiary under this chapter.
(a) If married at the time of the criminal act, twenty-nine percent
of the average monthly wage.
(b) If married with one child at the time of the criminal act,
thirty-four percent of the average monthly wage.
(c) If married with two children at the time of the criminal act,
thirty-eight percent of the average monthly wage.
(d) If married with three children at the time of the criminal act,
forty-one percent of the average monthly wage.
(e) If married with four children at the time of the criminal act,
forty-four percent of the average monthly wage.
(f) If married with five or more children at the time of the
criminal act, forty-seven percent of the average monthly wage.
(g) If unmarried at the time of the criminal act, twenty-five
percent of the average monthly wage.
(h) If unmarried with one child at the time of the criminal act,
thirty percent of the average monthly wage.
(i) If unmarried with two children at the time of the criminal act,
thirty-four percent of the average monthly wage.
(j) If unmarried with three children at the time of the criminal
act, thirty-seven percent of the average monthly wage.
(k) If unmarried with four children at the time of the criminal
act, forty percent of the average monthly wage.
(l) If unmarried with five or more children at the time of the
criminal act, forty-three percent of the average monthly wage.
(6) The benefits established in RCW 51.32.080 for permanent partial
disability shall be the benefits obtainable under this chapter, and
provisions relating to payment contained in that section equally apply
under this chapter, but shall not exceed seven thousand dollars per
claim.
(7) The benefits established in RCW 51.32.090 for temporary total
disability shall be the benefits obtainable under this chapter, and
provisions relating to payment contained in that section apply under
this chapter, except that no person is eligible for temporary total
disability benefits under this chapter if such person was not gainfully
employed at the time of the criminal act.
(8) The benefits established in RCW 51.32.095 for continuation of
benefits during vocational rehabilitation shall be benefits obtainable
under this chapter, and provisions relating to payment contained in
that section apply under this chapter, except that benefits shall not
exceed five thousand dollars for any single injury.
(9) The provisions for lump sum payment of benefits upon death or
permanent total disability as contained in RCW 51.32.130 apply under
this chapter.
(10) The provisions relating to payment of benefits to, for or on
behalf of workers contained in RCW 51.32.040, 51.32.055, 51.32.100,
51.32.110, 51.32.120, 51.32.135, 51.32.140, 51.32.150, 51.32.160, and
51.32.210 are applicable to payment of benefits to, for or on behalf of
victims under this chapter.
(11) No person or spouse, child, or dependent of such person is
entitled to benefits under this chapter where the person making a claim
for such benefits has refused to give reasonable cooperation to state
or local law enforcement agencies in their efforts to apprehend and
convict the perpetrator(s) of the criminal act which gave rise to the
claim.
(12) In addition to other benefits provided under this chapter,
victims of sexual assault are entitled to receive appropriate
counseling. Fees for such counseling shall be determined by the
department in accordance with RCW 51.04.030, subject to the limitations
of RCW 7.68.080. Counseling services may include, if determined
appropriate by the department, counseling of members of the victim's
immediate family, other than the perpetrator of the assault.
(13) Notwithstanding other provisions of this chapter and Title 51
RCW, benefits payable for total temporary disability under subsection
(7) of this section, shall be limited to fifteen thousand dollars.
(14)
(((15))) (11) Crime victims' compensation is not available to pay
for services covered under chapter 74.09 RCW or Title XIX of the
federal social security act, except to the extent that the costs for
such services exceed service limits established by the department of
social and health services ((or, during the 1993-95 fiscal biennium)),
to the extent necessary to provide matching funds for federal medicaid
reimbursement.
(((16) In addition to other benefits provided under this chapter,
immediate family members of a homicide victim may receive appropriate
counseling to assist in dealing with the immediate, near-term
consequences of the related effects of the homicide. Fees for
counseling shall be determined by the department in accordance with RCW
51.04.030, subject to the limitations of RCW 7.68.080. Payment of
counseling benefits under this section may not be provided to the
perpetrator of the homicide. The benefits under this subsection may be
provided only with respect to homicides committed on or after July 1,
1992.)) (12) A victim whose crime occurred in another state who
qualifies for benefits under RCW 7.68.060((
(17) A dependent mother, father, stepmother, or stepfather, as
defined in RCW 51.08.050, who is a survivor of her or his child's
homicide, who has been requested by a law enforcement agency or a
prosecutor to assist in the judicial proceedings related to the death
of the victim, and who is not domiciled in Washington state at the time
of the request, may receive a lump-sum payment upon arrival in this
state. Total benefits under this subsection may not exceed seven
thousand five hundred dollars. If more than one dependent parent is
eligible for this benefit, the lump-sum payment of seven thousand five
hundred dollars shall be divided equally among the dependent parents.
(18)(4))) (6) may receive
appropriate mental health counseling to address distress arising from
participation in the civil commitment proceedings. Fees for counseling
shall be determined by the department in accordance with RCW 51.04.030,
subject to the limitations of RCW 7.68.080.
(((19) A victim is not eligible for benefits under this act if such
victim:))
(a) Has been convicted of a felony offense within five years
preceding the criminal act for which they are applying where the felony
offense is a violent offense under RCW 9.94A.030 or a crime against
persons under RCW 9.94A.411, or is convicted of such a felony offense
after applying; and
(b) Has not completely satisfied all legal financial obligations
owed prior to applying for benefits.
(13) If the provisions of this title relative to compensation for
injuries to or death of victims become invalid because of any
adjudication, or are repealed, the period intervening between the
occurrence of an injury or death, not previously compensated for under
this title by lump payment or completed monthly payments, and such
repeal or the rendition of the final adjudication of invalidity shall
not be computed as a part of the time limited by law for the
commencement of any action relating to such injury or death.
(14) The benefits established in RCW 51.32.080 for permanent
partial disability will not be provided to any crime victim on or after
July 1, 2011. This subsection is intended to apply retroactively and
prospectively, and applies to all crime victim claims regardless of
when the claim was filed.
Sec. 402 RCW 7.68.070 and 2010 c 289 s 6 are each amended to read
as follows:
The ((right to)) eligibility for benefits under this chapter and
the amount thereof will be governed insofar as is applicable by the
provisions contained in this chapter ((51.32 RCW except as provided in
this section:)).
(1) ((The provisions contained in RCW 51.32.015, 51.32.030,
51.32.072, 51.32.073, 51.32.180, 51.32.190, and 51.32.200 are not
applicable to this chapter.)) Each victim injured as a result of a criminal act, including
criminal acts committed between July 1, 1981, and January 1, 1983, or
the victim's family or ((
(2)dependents)) beneficiary in case of death of
the victim, are ((entitled to)) eligible for benefits in accordance
with this chapter, subject to the limitations under RCW 7.68.015.
((The rights, duties, responsibilities, limitations, and procedures
applicable to a worker as contained in RCW 51.32.010 are applicable to
this chapter.)) Eligibility for benefits
under this chapter will be governed by its provisions, provided that no
more than fifty thousand dollars shall be paid per claim. Benefits may
include a combination of burial expenses, loss of financial support,
and medical expenses.
(3)(a) The limitations contained in RCW 51.32.020 are applicable to
claims under this chapter. In addition, no person or spouse, child, or
dependent of such person is entitled to benefits under this chapter
when the injury for which benefits are sought, was:
(i) The result of consent, provocation, or incitement by the
victim, unless an injury resulting from a criminal act caused the death
of the victim;
(ii) Sustained while the crime victim was engaged in the attempt to
commit, or the commission of, a felony; or
(iii) Sustained while the victim was confined in any county or city
jail, federal jail or prison or in any other federal institution, or
any state correctional institution maintained and operated by the
department of social and health services or the department of
corrections, prior to release from lawful custody; or confined or
living in any other institution maintained and operated by the
department of social and health services or the department of
corrections.
(b) A person identified as the "minor" in the charge of commercial
sexual abuse of a minor under RCW 9.68A.100, promoting commercial
sexual abuse of a minor under RCW 9.68A.101, or promoting travel for
commercial sexual abuse of a minor under RCW 9.68A.102 is considered a
victim of a criminal act for the purpose of the right to benefits under
this chapter even if the person is also charged with prostitution under
RCW 9A.88.030.
(4) The benefits established upon the death of a worker and
contained in RCW 51.32.050 shall be the benefits obtainable under this
chapter and provisions relating to payment contained in that section
shall equally apply under this chapter.
(a) Benefits payable for temporary total disability that results in
a loss of financial support shall not exceed fifteen thousand dollars.
(b) Benefits payable for a permanent total disability or fatality
that results in a loss of financial support shall not exceed forty
thousand dollars. After at least twelve monthly payments have been
paid, the department shall have the sole discretion to make a final
lump sum payment of the balance remaining.
(c) Benefits for disposition of remains or burial expenses shall
not exceed five thousand seven hundred fifty dollars per claim.
(2) If the victim was not gainfully employed at the time of the
criminal act, no loss of financial support will be paid to the victim
or any beneficiaries.
(3) No victim or beneficiary shall receive compensation for or
during the day on which the injury was received.
(4) If a victim's employer continues to pay the victim wages that
he or she was earning at the time of the crime, the victim shall not
receive any payment for loss of wages.
(5) When the director determines that a temporary total disability
results in a loss of financial support, the victim shall receive
monthly subject to subsection (1) of this section, during the period of
disability sixty percent of the victim's monthly wage up to a maximum
amount of one hundred percent of the state's average monthly wage as
defined in RCW 7.68.020. The minimum monthly payment shall be no less
than five hundred dollars. Monthly wages shall be based upon employer
wage statements, employment security records, or documents reported to
and certified by the internal revenue service. Monthly wages must be
determined using the actual documented monthly wage or averaging the
total wages earned for up to twelve successive calendar months
preceding the injury. In cases where the victim's wages and hours are
fixed, they shall be determined by multiplying the daily wage the
victim was receiving at the time of the injury:
(a) By five, if the victim was normally employed one day a week;
(b) By nine, if the victim was normally employed two days a week;
(c) By thirteen, if the victim was normally employed three days a
week;
(d) By eighteen, if the victim was normally employed four days a
week;
(e) By twenty-two, if the victim was normally employed five days a
week;
(f) By twenty-six, if the victim was normally employed six days a
week; or
(g) By thirty, if the victim was normally employed seven days a
week.
(6) When the director determines that a permanent total disability
or death results in a loss of financial support the victim or eligible
spouse shall receive the monthly payments established in this
subsection, not to exceed forty thousand dollars or the limits
established in this chapter.
(7) If the director determines that the victim is voluntarily
retired and is no longer attached to the workforce, benefits shall not
be paid under this section.
(8) In the case of death, if there is no eligible spouse, benefits
shall be paid to the child or children of the deceased victim. If
there is no spouse or children, no payments shall be made under this
section. If the spouse remarries before this benefit is paid in full
benefits shall be paid to the victim's child or children and the spouse
shall not receive further payment. If there is no child or children no
further payments will be made.
(9) Benefits for disposition of remains or burial expenses shall
not exceed the amount paid by the department in case of the death of a
worker as provided in chapter 51.32 RCW in any claim((. If the
criminal act results in the death of a victim who was not gainfully
employed at the time of the criminal act, and who was not so employed
for at least three consecutive months of the twelve months immediately
preceding the criminal act;)) and
to receive reimbursement for expenses related to the disposition of
remains or burial, the department must receive an itemized statement
from a provider of services within twelve months of the date upon which
the death of the victim is officially recognized as a homicide. If
there is a delay in the recovery of remains or the release of remains
for disposition or burial, an itemized statement from a provider of
services must be received within twelve months of the date of the
release of the remains.
(a) Benefits payable to an eligible surviving spouse, where there
are no children of the victim at the time of the criminal act who have
survived the victim or where such spouse has legal custody of all of
his or her children, shall be limited to burial expenses and a lump sum
payment of seven thousand five hundred dollars without reference to
number of children, if any;
(b) Where any such spouse has legal custody of one or more but not
all of such children, then such burial expenses shall be paid, and such
spouse shall receive a lump sum payment of three thousand seven hundred
fifty dollars and any such child or children not in the legal custody
of such spouse shall receive a lump sum of three thousand seven hundred
fifty dollars to be divided equally among such child or children;
(c) If any such spouse does not have legal custody of any of the
children, the burial expenses shall be paid and the spouse shall
receive a lump sum payment of up to three thousand seven hundred fifty
dollars and any such child or children not in the legal custody of the
spouse shall receive a lump sum payment of up to three thousand seven
hundred fifty dollars to be divided equally among the child or
children;
(d) If no such spouse survives, then such burial expenses shall be
paid, and each surviving child of the victim at the time of the
criminal act shall receive a lump sum payment of three thousand seven
hundred fifty dollars up to a total of two such children and where
there are more than two such children the sum of seven thousand five
hundred dollars shall be divided equally among such children.
No other benefits may be paid or payable under these circumstances.
(5) The benefits established in RCW 51.32.060 for permanent total
disability proximately caused by the criminal act shall be the benefits
obtainable under this chapter, and provisions relating to payment
contained in that section apply under this chapter: PROVIDED, That if
a victim becomes permanently and totally disabled as a proximate result
of the criminal act and was not gainfully employed at the time of the
criminal act, the victim shall receive monthly during the period of the
disability the following percentages, where applicable, of the average
monthly wage determined as of the date of the criminal act pursuant to
RCW 51.08.018:
(a) If married at the time of the criminal act, twenty-nine percent
of the average monthly wage.
(b) If married with one child at the time of the criminal act,
thirty-four percent of the average monthly wage.
(c) If married with two children at the time of the criminal act,
thirty-eight percent of the average monthly wage.
(d) If married with three children at the time of the criminal act,
forty-one percent of the average monthly wage.
(e) If married with four children at the time of the criminal act,
forty-four percent of the average monthly wage.
(f) If married with five or more children at the time of the
criminal act, forty-seven percent of the average monthly wage.
(g) If unmarried at the time of the criminal act, twenty-five
percent of the average monthly wage.
(h) If unmarried with one child at the time of the criminal act,
thirty percent of the average monthly wage.
(i) If unmarried with two children at the time of the criminal act,
thirty-four percent of the average monthly wage.
(j) If unmarried with three children at the time of the criminal
act, thirty-seven percent of the average monthly wage.
(k) If unmarried with four children at the time of the criminal
act, forty percent of the average monthly wage.
(l) If unmarried with five or more children at the time of the
criminal act, forty-three percent of the average monthly wage.
(6) The benefits established in RCW 51.32.080 for permanent partial
disability shall be the benefits obtainable under this chapter, and
provisions relating to payment contained in that section equally apply
under this chapter.
(7) The benefits established in RCW 51.32.090 for temporary total
disability shall be the benefits obtainable under this chapter, and
provisions relating to payment contained in that section apply under
this chapter. No person is eligible for temporary total disability
benefits under this chapter if such person was not gainfully employed
at the time of the criminal act, and was not so employed for at least
three consecutive months of the twelve months immediately preceding the
criminal act.
(8) The benefits established in RCW 51.32.095 for continuation of
benefits during vocational rehabilitation shall be benefits obtainable
under this chapter, and provisions relating to payment contained in
that section apply under this chapter. Benefits shall not exceed five
thousand dollars for any single injury.
(9) The provisions for lump sum payment of benefits upon death or
permanent total disability as contained in RCW 51.32.130 apply under
this chapter.
(10) The provisions relating to payment of benefits to, for or on
behalf of workers contained in RCW 51.32.040, 51.32.055, 51.32.100,
51.32.110, 51.32.120, 51.32.135, 51.32.140, 51.32.150, 51.32.160, and
51.32.210 are applicable to payment of benefits to, for or on behalf of
victims under this chapter.
(11) No person or spouse, child, or dependent of such person is
entitled to benefits under this chapter where the person making a claim
for such benefits has refused to give reasonable cooperation to state
or local law enforcement agencies in their efforts to apprehend and
convict the perpetrator(s) of the criminal act which gave rise to the
claim.
(12) In addition to other benefits provided under this chapter,
victims of sexual assault are entitled to receive appropriate
counseling. Fees for such counseling shall be determined by the
department in accordance with RCW 51.04.030, subject to the limitations
of RCW 7.68.080. Counseling services may include, if determined
appropriate by the department, counseling of members of the victim's
immediate family, other than the perpetrator of the assault.
(13) Except for medical benefits authorized under RCW 7.68.080, no
more than thirty thousand dollars shall be granted as a result of a
single injury or death, except that benefits granted as the result of
total permanent disability or death shall not exceed forty thousand
dollars.
(14) Notwithstanding other provisions of this chapter and Title 51
RCW, benefits payable for total temporary disability under subsection
(7) of this section, shall be limited to fifteen thousand dollars
(((15))) (10) Any person who is responsible for the victim's
injuries, or who would otherwise be unjustly enriched as a result of
the victim's injuries, shall not be a beneficiary under this chapter.
(((16))) (11) Crime victims' compensation is not available to pay
for services covered under chapter 74.09 RCW or Title XIX of the
federal social security act, except to the extent that the costs for
such services exceed service limits established by the department of
social and health services ((or, during the 1993-95 fiscal biennium)),
to the extent necessary to provide matching funds for federal medicaid
reimbursement.
(((17) In addition to other benefits provided under this chapter,
immediate family members of a homicide victim may receive appropriate
counseling to assist in dealing with the immediate, near-term
consequences of the related effects of the homicide. Fees for
counseling shall be determined by the department in accordance with RCW
51.04.030, subject to the limitations of RCW 7.68.080. Payment of
counseling benefits under this section may not be provided to the
perpetrator of the homicide. The benefits under this subsection may be
provided only with respect to homicides committed on or after July 1,
1992.)) (12) A victim whose crime occurred in another state who
qualifies for benefits under RCW 7.68.060((
(18) A dependent mother, father, stepmother, or stepfather, as
defined in RCW 51.08.050, who is a survivor of her or his child's
homicide, who has been requested by a law enforcement agency or a
prosecutor to assist in the judicial proceedings related to the death
of the victim, and who is not domiciled in Washington state at the time
of the request, may receive a lump-sum payment upon arrival in this
state. Total benefits under this subsection may not exceed seven
thousand five hundred dollars. If more than one dependent parent is
eligible for this benefit, the lump-sum payment of seven thousand five
hundred dollars shall be divided equally among the dependent parents.
(19)(4))) (6) may receive
appropriate mental health counseling to address distress arising from
participation in the civil commitment proceedings. Fees for counseling
shall be determined by the department in accordance with RCW 51.04.030,
subject to the limitations of RCW 7.68.080.
(13) If the provisions of this title relative to compensation for
injuries to or death of victims become invalid because of any
adjudication, or are repealed, the period intervening between the
occurrence of an injury or death, not previously compensated for under
this title by lump payment or completed monthly payments, and such
repeal or the rendition of the final adjudication of invalidity shall
not be computed as a part of the time limited by law for the
commencement of any action relating to such injury or death.
(14) The benefits established in RCW 51.32.080 for permanent
partial disability will not be provided to any crime victim on or after
July 1, 2011. This subsection is intended to apply retroactively and
prospectively, and applies to all crime victim claims regardless of
when the claim was filed.
NEW SECTION. Sec. 403 (1) Benefits for permanent total
disability shall be determined under the director's supervision, only
after the injured victim's condition becomes fixed.
(2) All determinations of permanent total disabilities shall be
made by the department. The victim may make a request or the inquiry
may be initiated by the director. Determinations shall be required in
every instance where permanent total disability is likely to be
present.
(3) A request for determination of permanent total disability shall
be examined by the department, and the department shall issue an order
in accordance with RCW 51.52.050.
NEW SECTION. Sec. 404 (1) If aggravation, diminution, or
termination of disability takes place, the director may, upon the
application of the beneficiary, made within seven years from the date
the first closing order becomes final, or at any time upon his or her
own motion, readjust the rate of compensation in accordance with the
rules in this section provided for the same, or in a proper case
terminate the payment: PROVIDED, That the director may, upon
application of the victim made at any time, provide proper and
necessary medical and surgical services as authorized under section 505
of this act.
(2) "Closing order" as used in this section means an order based on
factors which include medical recommendation, advice, examination, or
the maximum benefit has been met.
NEW SECTION. Sec. 405 (1) For persons receiving compensation for
temporary total disability pursuant to the provisions of this chapter,
such compensation shall be reduced by an amount equal to the benefits
payable under the federal old-age, survivors, and disability insurance
act as now or hereafter amended not to exceed the amount of the
reduction established pursuant to 42 U.S.C. Sec. 424a. However, such
reduction shall not apply when the combined compensation provided
pursuant to this chapter and the federal old-age, survivors, and
disability insurance act is less than the total benefits to which the
federal reduction would apply, pursuant to 42 U.S.C. 424a. Where any
person described in this section refuses to authorize the release of
information concerning the amount of benefits payable under said
federal act the department's estimate of said amount shall be deemed to
be correct unless and until the actual amount is established and no
adjustment shall be made for any period of time covered by any such
refusal.
(2) Any reduction under subsection (1) of this section shall be
effective the month following the month in which the department is
notified by the federal social security administration that the person
is receiving disability benefits under the federal old-age, survivors,
and disability insurance act: PROVIDED, That in the event of an
overpayment of benefits the department may not recover more than the
overpayments for the six months immediately preceding the date the
department notifies the victim that an overpayment has occurred:
PROVIDED FURTHER, That upon determining that there has been an
overpayment, the department shall immediately notify the person who
received the overpayment that he or she shall be required to make
repayment pursuant to this section and section 702 of this act.
(3) Recovery of any overpayment must be taken from future temporary
or permanent total disability benefits or permanent partial disability
benefits provided by this chapter. In the case of temporary or
permanent total disability benefits, the recovery shall not exceed
twenty-five percent of the monthly amount due from the department or
one-sixth of the total overpayment, whichever is the lesser.
(4) No reduction may be made unless the victim receives notice of
the reduction prior to the month in which the reduction is made.
(5) In no event shall the reduction reduce total benefits to less
than the greater amount the victim may be eligible under this chapter
or the federal old-age, survivors, and disability insurance act.
(6) The director, pursuant to rules adopted in accordance with the
procedures provided in the administrative procedure act, chapter 34.05
RCW, may exercise his or her discretion to waive, in whole or in part,
the amount of any overpayment where the recovery would be against
equity and good conscience.
(7) Subsection (1) of this section applies to:
(a) Victims under the age of sixty-two whose effective entitlement
to total disability compensation begins before January 2, 1983;
(b) Victims under the age of sixty-five whose effective entitlement
to total disability compensation begins after January 1, 1983; and
(c) Victims who will become sixty-five years of age on or after
June 10, 2004.
(8)(a) If the federal social security administration makes a
retroactive reduction in the federal social security disability benefit
entitlement of a victim for periods of temporary total, temporary
partial, or total permanent disability for which the department also
reduced the victim's benefit amounts under this section, the department
shall make adjustments in the calculation of benefits and pay the
additional benefits to the victim as appropriate. However, the
department shall not make changes in the calculation or pay additional
benefits unless the victim submits a written request, along with
documentation satisfactory to the director of an overpayment assessment
by the social security administration, to the department.
(b) Additional benefits paid under this subsection:
(i) Are paid without interest and without regard to whether the
victim's claim under this chapter is closed; and
(ii) Do not affect the status or the date of the claim's closure.
(c) This subsection does not apply to requests on claims for which
a determination on the request has been made and is not subject to
further appeal.
NEW SECTION. Sec. 406 Victims otherwise eligible for
compensation under this chapter may also claim compensation for loss of
or damage to the victim's personal clothing or footwear incurred in the
course of emergency medical treatment for injuries.
NEW SECTION. Sec. 407 Where death results from a crime injury,
the parties eligible for compensation under this title, or someone in
their behalf, shall make application for the same to the department.
The application must be accompanied with proof of death and proof of
relationship showing the parties to be eligible for compensation under
this title.
NEW SECTION. Sec. 408 If change of circumstances warrants an
increase or rearrangement of compensation, like application shall be
made therefor. Where the application has been granted, compensation
and other benefits if in order shall be allowed for periods of time up
to sixty days prior to the receipt of such application.
NEW SECTION. Sec. 409 A beneficiary shall at all times furnish
the department with proof satisfactory to the director of the nature,
amount, and extent of the contribution made by the deceased victim.
Proof of dependency by any beneficiary residing without the United
States shall be made before the nearest United States consul or
consular agency, under the seal of such consul or consular agent, and
the department may cause any warrant or warrants to which such
beneficiary is eligible to be transmitted to the beneficiary through
the nearest United States consul or consular agent.
Sec. 501 RCW 7.68.080 and 1990 c 3 s 503 are each amended to read
as follows:
((The provisions of chapter 51.36 RCW as now or hereafter amended
govern the provision of medical aid under this chapter to victims
injured as a result of a criminal act, including criminal acts
committed between July 1, 1981, and January 1, 1983, except that:)) (1) When the injury to any victim is so serious as to require
the victim's being taken from the place of injury to a place of
treatment, reasonable transportation costs to the nearest place of
proper treatment shall be reimbursed ((
(1) The provisions contained in RCW 51.36.030, 51.36.040, and
51.36.080 as now or hereafter amended do not apply to this chapter;
(2) The specific provisions of RCW 51.36.020 as now or hereafter
amended relating to supplying emergency transportation do not apply:
PROVIDED, That:
(a)from the fund established
pursuant to RCW 7.68.090; and)).
(((b))) (2) In the case of alleged rape or molestation of a child,
the reasonable costs of a colposcope examination shall be reimbursed
((from the fund pursuant to RCW 7.68.090)).
(3) The director shall adopt rules for fees and charges for
hospital, clinic, ((and)) medical ((charges along with all related fees
under this chapter shall conform to regulations promulgated by the
director)), and other health care services, including fees and costs
for durable medical equipment, eye glasses, hearing aids, and other
medically necessary devices for crime victims under this chapter. The
director shall set these service levels and fees at a level no lower
than those established by the department of social and health services
under Title 74 RCW. In establishing fees for medical and other health
care services, the director shall consider the director's duty to
purchase health care in a prudent, cost-effective manner. The director
shall establish rules adopted in accordance with chapter 34.05 RCW.
Nothing in this chapter may be construed to require the payment of
interest on any billing, fee, or charge.
(4) Whenever the director deems it necessary in order to resolve
any medical issue, a victim shall submit to examination by a physician
or physicians selected by the director, with the rendition of a report
to the person ordering the examination. The department shall provide
the physician performing an examination with all relevant medical
records from the victim's claim file. The director, in his or her
discretion, may charge the cost of such examination or examinations to
the crime victims compensation fund. The cost of said examination
shall include payment to the victim of reasonable expenses connected
therewith.
(5) Victims of sexual assault are eligible to receive appropriate
counseling. Fees for such counseling shall be determined by the
department. Counseling services may include, if determined appropriate
by the department, counseling of members of the victim's immediate
family, other than the perpetrator of the assault.
(6) Immediate family members of a homicide victim may receive
appropriate counseling to assist in dealing with the immediate,
near-term consequences of the related effects of the homicide. Up to
twelve counseling sessions may be received for one year after the crime
victim's claim has been allowed. Fees for counseling shall be
determined by the department in accordance with and subject to this
section. Payment of counseling benefits under this section may not be
provided to the perpetrator of the homicide. The benefits under this
subsection may be provided only with respect to homicides committed on
or after July 1, 1992.
(7) A victim whose crime occurred in another state who qualifies
for benefits under RCW 7.68.060 may receive appropriate mental health
counseling to address distress arising from participation in the civil
commitment proceedings in Washington state. Fees for counseling shall
be determined by the department in accordance with RCW 51.04.030.
(8) The crime victims' compensation program shall consider payment
of benefits solely for the effects of the criminal act.
(9) The legislature finds and declares it to be in the public
interest of the state of Washington that a proper regulatory and
inspection program be instituted in connection with the provision of
any services provided to crime victims pursuant to this chapter. In
order to effectively accomplish such purpose and to assure that the
victim receives such services as are paid for by the state of
Washington, the acceptance by the victim of such services, and the
request by a provider of services for reimbursement for providing such
services, shall authorize the director of the department or the
director's authorized representative to inspect and audit all records
in connection with the provision of such services. In the conduct of
such audits or investigations, the director or the director's
authorized representatives may:
(a) Examine all records, or portions thereof, including patient
records, for which services were rendered by a health care provider
and reimbursed by the department, notwithstanding the provisions of any
other statute which may make or purport to make such records privileged
or confidential: PROVIDED, That no original patient records shall be
removed from the premises of the health care provider, and that the
disclosure of any records or information obtained under authority of
this section by the department is prohibited and constitutes a
violation of RCW 42.52.050, unless such disclosure is directly
connected to the official duties of the department: AND PROVIDED
FURTHER, That the disclosure of patient information as required under
this section shall not subject any physician, licensed advanced
registered nurse practitioner, or other health care provider to any
liability for breach of any confidential relationships between the
provider and the patient, and that the director or the director's
authorized representative shall destroy all copies of patient medical
records in their possession upon completion of the audit,
investigation, or proceedings;
(b) Approve or deny applications to participate as a provider of
services furnished to crime victims pursuant to this title;
(c) Terminate or suspend eligibility to participate as a provider
of services furnished to victims pursuant to this title; and
(d) Pursue collection of unpaid overpayments and/or penalties plus
interest accrued from health care providers pursuant to RCW
51.32.240(6).
(10) When contracting for health care services and equipment, the
department, upon request of a contractor, shall keep confidential
financial and valuable trade information, which shall be exempt from
public inspection and copying under chapter 42.56 RCW.
NEW SECTION. Sec. 502 Health care professionals providing
treatment or services to crime victims shall maintain all proper
credentials and educational standards as required by law, and be
registered with the department of health. The crime victims'
compensation program does not pay for experimental or controversial
treatment. Treatment shall be evidence-based and curative.
NEW SECTION. Sec. 503 The department shall examine the
credentials of persons conducting special medical examinations and
shall monitor the quality and objectivity of examinations and reports.
The department shall adopt rules to ensure that examinations are
performed only by qualified persons meeting department standards.
NEW SECTION. Sec. 504 (1) Any victim eligible to receive any
benefits or claiming such under this title shall, if requested by the
department submit himself or herself for medical examination, at a time
and from time to time, at a place reasonably convenient for the victim
as may be provided by the rules of the department. An injured victim,
whether an alien or other injured victim, who is not residing in the
United States at the time that a medical examination is requested may
be required to submit to an examination at any location in the United
States determined by the department.
(2) If the victim refuses to submit to medical examination, or
obstructs the same, or, if any injured victim shall persist in
unsanitary or injurious practices which tend to imperil or retard his
or her recovery, or shall refuse to submit to such medical or surgical
treatment as is reasonably essential to his or her recovery does not
cooperate in reasonable efforts at such rehabilitation, the department
may suspend any further action on any claim of such victim so long as
such refusal, obstruction, noncooperation, or practice continues and
reduce, suspend, or deny any compensation for such period: PROVIDED,
That the department not suspend any further action on any claim of a
victim or reduce, suspend, or deny any compensation if a victim has
good cause for refusing to submit to or to obstruct any examination,
evaluation, treatment, or practice requested by the department or
required under this section.
(3) If the victim necessarily incurs traveling expenses in
attending the examination pursuant to the request of the department,
such traveling expenses shall be repaid to him or her upon proper
voucher and audit.
(4) If the medical examination required by this section causes the
victim to be absent from his or her work without pay, the victim shall
be paid compensation in an amount equal to his or her usual wages for
the time lost from work while attending the medical examination when
the victim is insured by the department.
NEW SECTION. Sec. 505 Upon the occurrence of any injury to a
victim eligible for compensation under the provisions of this chapter,
he or she shall receive proper and necessary medical and surgical
services using his or her private or public insurance or if no
insurance, using a provider of his or her own choice. In all accepted
claims, treatment shall be limited in point of duration as follows:
(1) No treatment shall be provided once the victim has received the
maximum compensation under this chapter.
(2) In case of temporary disability, treatment shall not extend
beyond the time when monthly allowances to him or her shall cease:
PROVIDED, That after any injured victim has returned to his or her work
his or her medical and surgical treatment may be continued if, and so
long as, such continuation is deemed necessary by the director to be
necessary to his or her more complete recovery, and as long as the
victim has not received the maximum compensation under this chapter.
NEW SECTION. Sec. 506 Any medical provider who fails, neglects,
or refuses to file a report with the director, as required by this
chapter, within five days of the date of treatment, showing the
condition of the injured victim at the time of treatment, a description
of the treatment given, and an estimate of the probable duration of the
injury, or who fails or refuses to render all necessary assistance to
the injured victim, as required by this chapter, shall be subject to a
civil penalty determined by the director but not to exceed two hundred
fifty dollars. The amount shall be paid into the crime victims'
compensation account.
NEW SECTION. Sec. 601 (1)(a) If the victim or beneficiary in a
claim prevails in an appeal by any party to the department or the
court, the department shall comply with the department or court's order
with respect to the payment of compensation within the later of the
following time periods:
(i) Sixty days after the compensation order has become final and is
not subject to review or appeal; or
(ii) If the order has become final and is not subject to review or
appeal and the department has, within the period specified in (a)(i) of
this subsection, requested the filing by the victim or beneficiary of
documents necessary to make payment of compensation, sixty days after
all requested documents are filed with the department.
The department may extend the sixty-day time period for an
additional thirty days for good cause.
(b) If the department fails to comply with (a) of this subsection,
any person eligible for compensation under the order may institute
proceedings for injunctive or other appropriate relief for enforcement
of the order. These proceedings may be instituted in the superior
court for the county in which the claimant resides, or, if the claimant
is not then a resident of this state, in the superior court for
Thurston county.
(2) In a proceeding under this section, the court shall enforce
obedience to the order by proper means, enjoining compliance upon the
person obligated to comply with the compensation order. The court may
issue such writs and processes as are necessary to carry out its orders
and may award a penalty of up to one thousand dollars to the person
eligible for compensation under the order.
(3) A proceeding under this section does not preclude other methods
of enforcement provided for in this chapter.
Sec. 701 RCW 7.68.125 and 1995 c 33 s 2 are each amended to read
as follows:
(1)(a) Whenever any payment ((under this chapter is made because of
clerical error, mistake of identity, innocent misrepresentation by or
on behalf of the recipient thereof mistakenly acted upon, or any other
circumstance of a similar nature, all not induced by fraud, the
recipient thereof shall repay it and recoupment may be made from any
future payments due to the recipient under this chapter. The
department must make claim for such repayment or recoupment within one
year of the making of any such payment or it will be deemed that any
claim therefor has been waived. The department may exercise its
discretion to waive, in whole or in part, the amount of any such timely
claim.)) of benefits
under this chapter is made because of clerical error, mistake of
identity, innocent misrepresentation by or on behalf of the recipient
thereof mistakenly acted upon, or any other circumstance of a similar
nature, all not induced by willful misrepresentation, the recipient
thereof shall repay it and recoupment may be made from any future
payments due to the recipient on any claim with the crime victims'
compensation program. The department must make claim for such
repayment or recoupment within one year of the making of any such
payment or it will be deemed any claim therefor has been waived.
(2) Whenever any payment under this chapter has been made pursuant
to an adjudication by the department, board, or any court and timely
appeal therefrom has been made and the final decision is that any such
payment was made pursuant to an erroneous adjudication, the recipient
thereof shall repay it and recoupment may be made from any future
payments due to the recipient under this chapter. The department may
exercise its discretion to waive, in whole or in part, the amount
thereof.
(3) Whenever any payment under this chapter has been induced by
fraud the recipient thereof shall repay any such payment together with
a penalty of fifty percent of the total of any such payments and the
amount of such total sum may be recouped from any future payments due
to the recipient under this chapter and the amount of the penalty shall
be placed in the fund or funds established pursuant to RCW 7.68.090.
(4) If the department issues an order contending a debt due and
owing under this section, the order is subject to chapter 51.52 RCW.
If the order becomes final under chapter 51.52 RCW, the director or the
director's designee may file with the clerk of any county within the
state a warrant in the amount stated in the order plus interest
accruing from the date the order became final. The clerk of the county
in which the warrant is filed shall immediately enter the warrant in
the execution docket. The amount of the warrant as docketed becomes a
lien upon all real and personal property of the person against whom the
warrant is issued, the same as a judgment in a civil case. The warrant
shall then be subject to execution, garnishment, and other procedures
for the collection of judgments. The filing fee must be added to the
amount of the warrant. The department shall mail a conformed copy of
the warrant to the person named within seven working days of filing
with the clerk.
(5)(a) The director, or the director's designee, may issue to any
person or organization an order to withhold and deliver property of any
kind if there is reason to believe that the person or organization
possesses property that is due, owing, or belonging to any person
against whom a final order of debt due and owing has been entered. For
purposes of this subsection, "person or organization" includes any
individual, firm, association, corporation, political subdivision of
the state, or agency of the state.
(b) The order to withhold and deliver must be served in the manner
prescribed for the service of a summons in a civil action or by
certified mail, return receipt requested. Any person or organization
upon whom service has been made shall answer the order within twenty
days exclusive of the day of service, under oath and in writing, and
shall make true answers to the matters inquired of therein.
(c) If there is in the possession of the person or organization
served with the order any property that might be subject to the claim
of the department, the person or organization must immediately withhold
such property and deliver the property to the director or the
director's authorized representative immediately upon demand.
(d) If the person or organization served the order fails to timely
answer the order, the court may render judgment by default against the
person or organization for the full amount claimed by the director in
the order plus costs.
(e) If an order to withhold and deliver is served upon an employer
and the property found to be subject to the notice is wages, the
employer may assert in the answer all exemptions to which the wage
earner might be entitled as provided by RCW 6.27.150
(b) Except as provided in subsections (3) and (4) of this section,
the department may only assess an overpayment of benefits because of
adjudicator error when the order upon which the overpayment is based is
not yet final as provided in RCW 51.52.050 and 51.52.060. "Adjudicator
error" includes the failure to consider information in the claim file,
failure to secure adequate information, or an error in judgment.
(c) The director, pursuant to rules adopted in accordance with the
procedures provided in the administrative procedure act, chapter 34.05
RCW, may exercise his or her discretion to waive, in whole or in part,
the amount of any such timely claim where the recovery would be against
equity and good conscience.
(2) Whenever the department fails to pay benefits because of
clerical error, mistake of identity, or innocent misrepresentation, all
not induced by recipient willful misrepresentation, the recipient may
request an adjustment of benefits to be paid from the crime victims'
compensation programs subject to the following:
(a) The recipient must request an adjustment in benefits within one
year from the date of the incorrect payment or it will be deemed any
claim therefore has been waived.
(b) The recipient may not seek an adjustment of benefits because of
adjudicator error. Adjustments due to adjudicator error are addressed
by the filing of a written request for reconsideration with the
department or an appeal with the department within ninety days from the
date the order is communicated as provided in RCW 51.52.050.
"Adjudicator error" includes the failure to consider information in the
claim file, failure to secure adequate information, or an error in
judgment.
(3) Whenever any payment of benefits under this chapter has been
made pursuant to an adjudication by the department or by order of any
court and timely appeal therefrom has been made where the final
decision is that any such payment was made pursuant to an erroneous
adjudication, the recipient thereof shall repay it and recoupment may
be made from any future payments due to the recipient on any claim.
(a) The director, pursuant to rules adopted in accordance with the
procedures provided in the administrative procedure act, chapter 34.05
RCW, may exercise discretion to waive, in whole or in part, the amount
of any such payments where the recovery would be against equity and
good conscience.
(b) The department shall first attempt recovery of overpayments for
health services from any entity that provided health insurance to the
victim to the extent that the health insurance entity would have
provided health insurance benefits.
(4)(a) Whenever any payment of benefits under this chapter has been
induced by willful misrepresentation the recipient thereof shall repay
any such payment together with a penalty of fifty percent of the total
of any such payments and the amount of such total sum may be recouped
from any future payments due to the recipient on any claim with the
crime victims' compensation program against whom the willful
misrepresentation was committed and the amount of such penalty shall be
placed in the crime victims' compensation fund. Such repayment or
recoupment must be demanded or ordered within three years of the
discovery of the willful misrepresentation.
(b) For purposes of this subsection (4), it is willful
misrepresentation for a person to obtain payments or other benefits
under this chapter in an amount greater than that to which the person
otherwise would be entitled. Willful misrepresentation includes:
(i) Willful false statement; or
(ii) Willful misrepresentation, omission, or concealment of any
material fact.
(c) For purposes of this subsection (4), "willful" means a
conscious or deliberate false statement, misrepresentation, omission,
or concealment of a material fact with the specific intent of
obtaining, continuing, or increasing benefits under this chapter.
(d) For purposes of this subsection (4), failure to disclose a
work-type activity must be willful in order for a misrepresentation to
have occurred.
(e) For purposes of this subsection (4), a material fact is one
which would result in additional, increased, or continued benefits,
including but not limited to facts about physical restrictions, or
work-type activities which either result in wages or income or would be
reasonably expected to do so. Wages or income include the receipt of
any goods or services. For a work-type activity to be reasonably
expected to result in wages or income, a pattern of repeated activity
must exist. For those activities that would reasonably be expected to
result in wages or produce income, but for which actual wage or income
information cannot be reasonably determined, the department shall
impute wages.
(5) The victim, beneficiary, or other person affected thereby shall
have the right to contest an order assessing an overpayment pursuant to
this section in the same manner and to the same extent as provided
under RCW 51.52.050 and 51.52.060. In the event such an order becomes
final under chapter 51.52 RCW and notwithstanding the provisions of
subsections (1) through (4) of this section, the director or director's
designee may file with the clerk in any county within the state a
warrant in the amount of the sum representing the unpaid overpayment
and/or penalty plus interest accruing from the date the order became
final. The clerk of the county in which the warrant is filed shall
immediately designate a superior court cause number for such warrant
and the clerk shall cause to be entered in the judgment docket under
the superior court cause number assigned to the warrant, the name of
the victim, beneficiary, or other person mentioned in the warrant, the
amount of the unpaid overpayment and/or penalty plus interest accrued,
and the date the warrant was filed. The amount of the warrant as
docketed shall become a lien upon the title to and interest in all real
and personal property of the victim, beneficiary, or other person
against whom the warrant is issued, the same as a judgment in a civil
case docketed in the office of such clerk. The sheriff shall then
proceed in the same manner and with like effect as prescribed by law
with respect to execution or other process issued against rights or
property upon judgment in the superior court. Such warrant so docketed
shall be sufficient to support the issuance of writs of garnishment in
favor of the department in the manner provided by law in the case of
judgment, wholly or partially unsatisfied. The clerk of the court
shall be entitled to a filing fee under RCW 36.18.012(10), which shall
be added to the amount of the warrant. A copy of such warrant shall be
mailed to the victim, beneficiary, or other person within three days of
filing with the clerk.
The director or director's designee may issue to any person, firm,
corporation, municipal corporation, political subdivision of the state,
public corporation, or agency of the state, a notice to withhold and
deliver property of any kind if there is reason to believe that there
is in the possession of such person, firm, corporation, municipal
corporation, political subdivision of the state, public corporation, or
agency of the state, property that is due, owing, or belonging to any
victim, beneficiary, or other person upon whom a warrant has been
served for payments due the department. The notice and order to
withhold and deliver shall be served by certified mail accompanied by
an affidavit of service by mailing or served by the sheriff of the
county, or by the sheriff's deputy, or by any authorized representative
of the director or director's designee, or by electronic means or other
methods authorized by law. Any person, firm, corporation, municipal
corporation, political subdivision of the state, public corporation, or
agency of the state upon whom service has been made shall answer the
notice within twenty days exclusive of the day of service, under oath
and in writing, and shall make true answers to the matters inquired or
in the notice and order to withhold and deliver. In the event there is
in the possession of the party named and served with such notice and
order, any property that may be subject to the claim of the department,
such property shall be delivered forthwith to the director or the
director's authorized representative upon demand. If the party served
and named in the notice and order fails to answer the notice and order
within the time prescribed in this section, the court may, after the
time to answer such order has expired, render judgment by default
against the party named in the notice for the full amount, plus costs,
claimed by the director or the director's designee in the notice. In
the event that a notice to withhold and deliver is served upon an
employer and the property found to be subject thereto is wages, the
employer may assert in the answer all exemptions provided for by
chapter 6.27 RCW to which the wage earner may be entitled.
This subsection shall only apply to orders assessing an overpayment
which are issued on or after July 28, 1991: PROVIDED, That this
subsection shall apply retroactively to all orders assessing an
overpayment resulting from willful misrepresentation, civil or
criminal.
(6) Orders assessing an overpayment which are issued on or after
July 28, 1991, shall include a conspicuous notice of the collection
methods available to the department.
NEW SECTION. Sec. 702 Notwithstanding any other provisions of
law, any overpayments previously recovered under the provisions of
section 405 of this act as now or hereafter amended shall be limited to
six months' overpayments. Where greater recovery has already been
made, the director, in his or her discretion, may make restitution in
those cases where an extraordinary hardship has been created.
Sec. 703 RCW 7.68.130 and 1995 c 33 s 3 are each amended to read
as follows:
(1) Benefits payable pursuant to this chapter shall be reduced by
the amount of any other public or private insurance available, less a
proportionate share of reasonable attorneys' fees and costs, if any,
incurred by the victim in obtaining recovery from the insurer.
Calculation of a proportionate share of attorneys' fees and costs shall
be made under the formula established in RCW ((51.24.060)) 7.68.050 (8)
through (13). The department or the victim may require court approval
of costs and attorneys' fees or may petition a court for determination
of the reasonableness of costs and attorneys' fees.
(2) Benefits payable after 1980 to victims injured or killed before
1980 shall be reduced by any other public or private insurance
including but not limited to social security.
(3) Payment by the department under this chapter shall be secondary
to other insurance benefits, notwithstanding the provision of any
contract or coverage to the contrary. In the case of private life
insurance proceeds, the first forty thousand dollars of the proceeds
shall not be considered for purposes of any reduction in benefits.
(4) If the department determines that a victim is likely to be
eligible for other public insurance or support services, the department
may require the applicant to apply for such services before awarding
benefits under RCW 7.68.070. If the department determines that a
victim shall apply for such services and the victim refuses or does not
apply for those services, the department may deny any further benefits
under this chapter. The department may require an applicant to provide
a copy of their determination of eligibility before providing benefits
under this chapter.
(5) Before payment of benefits will be considered victims shall use
their private insurance coverage.
(6) For the purposes of this section, the collection methods
available under RCW 7.68.125(((4))) (5) apply.
Sec. 704 RCW 7.68.050 and 1998 c 91 s 1 are each amended to read
as follows:
(1) No right of action at law for damages incurred as a consequence
of a criminal act shall be lost as a consequence of being entitled to
benefits under the provisions of this chapter. The victim or his
beneficiary may elect to seek damages from the person or persons liable
for the claimed injury or death, and such victim or beneficiary is
entitled to the full compensation and benefits provided by this chapter
regardless of any election or recovery made pursuant to this section.
(2) For the purposes of this section, the rights, privileges,
responsibilities, duties, limitations, and procedures contained in
((RCW 51.24.050 through 51.24.110)) subsections (3) through (24) of
this section apply.
(3) ((If the recovery involved is against the state, the lien of
the department includes the interest on the benefits paid by the
department to or on behalf of such person under this chapter computed
at the rate of eight percent per annum from the date of payment.)) An election not to proceed against the third person operates
as an assignment of the cause of action to the department, which may
prosecute or compromise the action in its discretion in the name of the
victim, beneficiary, or legal representative.
(4)
(4) If an injury to a victim results in the victim's death, the
department to which the cause of action has been assigned may petition
a court for the appointment of a special personal representative for
the limited purpose of maintaining an action under this chapter and
chapter 4.20 RCW.
(5) If a beneficiary is a minor child, an election not to proceed
against a third person on such beneficiary's cause of action may be
exercised by the beneficiary's legal custodian or guardian.
(6) Any recovery made by the department shall be distributed as
follows:
(a) The department shall be paid the expenses incurred in making
the recovery including reasonable costs of legal services;
(b) The victim or beneficiary shall be paid twenty-five percent of
the balance of the recovery made, which shall not be subject to
subsection (7) of this section: PROVIDED, That in the event of a
compromise and settlement by the parties, the victim or beneficiary may
agree to a sum less than twenty-five percent;
(c) The department shall be paid the amount paid to or on behalf of
the victim or beneficiary by the department; and
(d) The victim or beneficiary shall be paid any remaining balance.
(7) Thereafter no payment shall be made to or on behalf of a victim
or beneficiary by the department for such injury until any further
amount payable shall equal any such remaining balance. Thereafter,
such benefits shall be paid by the department to or on behalf of the
victim or beneficiary as though no recovery had been made from a third
person.
(8) If the victim or beneficiary elects to seek damages from the
third person, any recovery made shall be distributed as follows:
(a) The costs and reasonable attorneys' fees shall be paid
proportionately by the victim or beneficiary and the department:
PROVIDED, That the department may require court approval of costs and
attorneys' fees or may petition a court for determination of the
reasonableness of costs and attorneys' fees;
(b) The victim or beneficiary shall be paid twenty-five percent of
the balance of the award: PROVIDED, That in the event of a compromise
and settlement by the parties, the victim or beneficiary may agree to
a sum less than twenty-five percent;
(c) The department shall be paid the balance of the recovery made,
but only to the extent necessary to reimburse the department for the
amount paid;
(i) The department shall bear its proportionate share of the costs
and reasonable attorneys' fees incurred by the victim or beneficiary to
the extent of the benefits paid under this title: PROVIDED, That the
department's proportionate share shall not exceed one hundred percent
of the costs and reasonable attorneys' fees;
(ii) The department's proportionate share of the costs and
reasonable attorneys' fees shall be determined by dividing the gross
recovery amount into the benefits paid amount and multiplying this
percentage times the costs and reasonable attorneys' fees incurred by
the victim or beneficiary;
(iii) The department's reimbursement share shall be determined by
subtracting their proportionate share of the costs and reasonable
attorneys' fees from the benefits paid amount;
(d) Any remaining balance shall be paid to the victim or
beneficiary; and
(e) Thereafter no payment shall be made to or on behalf of a victim
or beneficiary by the department for such injury until the amount of
any further amount payable shall equal any such remaining balance minus
the department's proportionate share of the costs and reasonable
attorneys' fees in regards to the remaining balance. This
proportionate share shall be determined by dividing the gross recovery
amount into the remaining balance amount and multiplying this
percentage times the costs and reasonable attorneys' fees incurred by
the victim or beneficiary. Thereafter, such benefits shall be paid by
the department to or on behalf of the victim or beneficiary as though
no recovery had been made from a third person.
(9) The recovery made shall be subject to a lien by the department
for its share under this section.
(10) The department has sole discretion to compromise the amount of
its lien. In deciding whether or to what extent to compromise its
lien, the department shall consider at least the following:
(a) The likelihood of collection of the award or settlement as may
be affected by insurance coverage, solvency, or other factors relating
to the third person;
(b) Factual and legal issues of liability as between the victim or
beneficiary and the third person. Such issues include but are not
limited to possible contributory negligence and novel theories of
liability; and
(c) Problems of proof faced in obtaining the award or settlement.
(11) It shall be the duty of the person to whom any recovery is
paid before distribution under this section to advise the department of
the fact and amount of such recovery, the costs and reasonable
attorneys' fees associated with the recovery, and to distribute the
recovery in compliance with this section.
(12) The distribution of any recovery made by award or settlement
of the third party action shall be confirmed by department order,
served by electronic, registered or certified mail, and shall be
subject to chapter 51.52 RCW. In the event the order of distribution
becomes final under chapter 51.52 RCW, the director or the director's
designee may file with the clerk of any county within the state a
warrant in the amount of the sum representing the unpaid lien plus
interest accruing from the date the order became final. The clerk of
the county in which the warrant is filed shall immediately designate a
superior court cause number for such warrant and the clerk shall cause
to be entered in the judgment docket under the superior court cause
number assigned to the warrant, the name of such victim or beneficiary
mentioned in the warrant, the amount of the unpaid lien plus interest
accrued and the date when the warrant was filed. The amount of such
warrant as docketed shall become a lien upon the title to and interest
in all real and personal property of the victim or beneficiary against
whom the warrant is issued, the same as a judgment in a civil case
docketed in the office of such clerk. The sheriff shall then proceed
in the same manner and with like effect as prescribed by law with
respect to execution or other process issued against rights or property
upon judgment in the superior court. Such warrant so docketed shall be
sufficient to support the issuance of writs of garnishment in favor of
the department in the manner provided by law in the case of judgment,
wholly or partially unsatisfied. The clerk of the court shall be
entitled to a filing fee under RCW 36.18.012(10), which shall be added
to the amount of the warrant. A copy of such warrant shall be mailed
to the victim or beneficiary within three days of filing with the
clerk.
(13) The director, or the director's designee, may issue to any
person, firm, corporation, municipal corporation, political subdivision
of the state, public corporation, or agency of the state, a notice and
order to withhold and deliver property of any kind if he or she has
reason to believe that there is in the possession of such person, firm,
corporation, municipal corporation, political subdivision of the state,
public corporation, or agency of the state, property which is due,
owing, or belonging to any victim or beneficiary upon whom a warrant
has been served by the department for payments due to the crime
victims' compensation program. The notice and order to withhold and
deliver shall be served by the sheriff of the county or by the
sheriff's deputy; by certified mail, return receipt requested; or by
any authorized representatives of the director. Any person, firm,
corporation, municipal corporation, political subdivision of the state,
public corporation, or agency of the state upon whom service has been
made shall answer the notice within twenty days exclusive of the day of
service, under oath and in writing, and shall make true answers to the
matters inquired of in the notice and order to withhold and deliver.
In the event there is in the possession of the party named and served
with such notice and order, any property which may be subject to the
claim of the department, such property shall be delivered forthwith to
the director or the director's authorized representative upon demand.
If the party served and named in the notice and order fails to answer
the notice and order within the time prescribed in this section, the
court may, after the time to answer such order has expired, render
judgment by default against the party named in the notice for the full
amount claimed by the director in the notice together with costs. In
the event that a notice to withhold and deliver is served upon an
employer and the property found to be subject thereto is wages, the
employer may assert in the answer to all exemptions provided for by
chapter 6.27 RCW to which the wage earner may be entitled.
(14) The department may require the victim or beneficiary to
exercise the right of election under this chapter by serving a written
demand by electronic mail, registered mail, certified mail, or personal
service on the victim or beneficiary.
(15) Unless an election is made within sixty days of the receipt of
the demand, and unless an action is instituted or settled within the
time granted by the department, the victim or beneficiary is deemed to
have assigned the action to the department. The department shall allow
the victim or beneficiary at least ninety days from the election to
institute or settle the action. When a beneficiary is a minor child
the demand shall be served upon the legal custodian or guardian of such
beneficiary.
(16) If an action which has been filed is not diligently
prosecuted, the department may petition the court in which the action
is pending for an order assigning the cause of action to the
department. Upon a sufficient showing of a lack of diligent
prosecution the court in its discretion may issue the order.
(17) If the department has taken an assignment of the third party
cause of action under subsection (15) of this section, the victim or
beneficiary may, at the discretion of the department, exercise a right
of reelection and assume the cause of action subject to reimbursement
of litigation expenses incurred by the department.
(18) If the victim or beneficiary elects to seek damages from the
third person, notice of the election must be given to the department.
The notice shall be by registered mail, certified mail, or personal
service. If an action is filed by the victim or beneficiary, a copy of
the complaint must be sent by registered mail to the department.
(19) A return showing service of the notice on the department shall
be filed with the court but shall not be part of the record except as
necessary to give notice to the defendant of the lien imposed by
subsection (9) of this section.
(20) Any compromise or settlement of the third party cause of
action by the victim or beneficiary which results in less than the
entitlement under this title is void unless made with the written
approval of the department: PROVIDED, That for the purposes of this
chapter, "entitlement" means benefits and compensation paid and
estimated by the department to be paid in the future.
(21) If a compromise or settlement is void because of subsection
(20) of this section, the department may petition the court in which
the action was filed for an order assigning the cause of action to the
department. If an action has not been filed, the department may
proceed as provided in chapter 7.24 RCW.
(22) The fact that the victim or beneficiary is entitled to
compensation under this title shall not be pleaded or admissible in
evidence in any third-party action under this chapter. Any challenge
of the right to bring such action shall be made by supplemental
pleadings only and shall be decided by the court as a matter of law.
(23) Actions against third persons that are assigned by the
claimant to the department, voluntarily or by operation of law in
accordance with this chapter, may be prosecuted by special assistant
attorneys general.
(24) The attorney general shall select special assistant attorneys
general from a list compiled by the department and the Washington state
bar association. The attorney general, in conjunction with the
department and the Washington state bar association, shall adopt rules
and regulations outlining the criteria and the procedure by which
private attorneys may have their names placed on the list of attorneys
available for appointment as special assistant attorneys general to
litigate third-party actions under subsection (23) of this section.
(25) The 1980 amendments to this section apply only to injuries
which occur on or after April 1, 1980.
NEW SECTION. Sec. 801 RCW 7.68.100 (Physicians' reporting) and
1973 1st ex.s. c 122 s 10 are each repealed.
NEW SECTION. Sec. 802 This act applies retroactively for claims
of victims of criminal acts that occurred on or after July 1, 1981, in
which a closing order has not been issued or become final and binding
as of July 1, 2011. Aggravation applications filed by crime victims
who had claims prior to July 1, 2011, will be adjudicated under the
laws in effect on or after the effective date of this section. This
act does not affect the retroactive application of chapter 122, Laws of
2010.
NEW SECTION. Sec. 803 Sections 201 through 205, 302 through 307,
403 through 409, 502 through 506, 601, and 702 of this act are each
added to chapter
NEW SECTION. Sec. 804 Section 401 of this act expires July 1,
2015.
NEW SECTION. Sec. 805 Section 402 of this act takes effect July
1, 2015.
NEW SECTION. Sec. 806 This act is necessary for the immediate
preservation of the public peace, health, or safety, or support of the
state government and its existing public institutions, and takes effect
July 1, 2011.