Jus 11.04 HistoryHistory: Cr. Register, February, 1992, No. 434, eff. 3-1-92; correction in (6) made under s. 13.92 (4) (b) 7., Stats., Register May 2016 No. 725; correction in (3) under 13.92 (4) (b) 7., Stats., Register June 2016 No. 726; CR 19-136: am. (1), (2) (a), (d), cr. (2) (dm), (2m), am. (3), cr. (3m), (4m), am. (6), (7), (8) (a) Register September 2021 No. 789, eff. 10-1-21. Jus 11.05(1)(1) To whom payable. The department may make an award for economic loss to or for the benefit of any of the following persons: Jus 11.05(1)(c)(c) A third person, other than a collateral source or business, that has incurred an expense as a direct result of the victim’s personal injury or death. Jus 11.05(1)(d)(d) A family member or person who lived with the victim immediately prior to the crime, as a result of the person’s or family member’s reaction to the death. In this subsection: Jus 11.05(2)(2) Maximum award. An award shall not exceed the economic loss to the claimant or exceed the limitations of s. 949.08 (1m) (a), Stats. Jus 11.05(3)(3) Dependents’ loss of support. In determining the amount of the award, the department shall determine loss of support based on the victim’s net income at the time of death and loss of support shall be calculated equal to four times the victim’s annual net income. The department shall deduct from the loss of support award an amount equal to benefits the dependents received or are to receive, over the course of 4 years, as survivor benefits from the federal social security program. The department shall determine if the dependents have received or will receive life insurance proceeds due to the victim’s death and each dependent’s loss of support award shall be reduced by the life insurance proceeds available to them. Jus 11.05(4)(a)(a) Any award made under this subchapter shall be reduced by the amount of any payment received, or to be received, as a result of the injury or death: Jus 11.05(4)(a)2.2. From insurance payments or programs, including workers compensation, unemployment compensation and social security. Jus 11.05(4)(a)5.5. From one or more 3rd parties held liable for the victim’s injury or death. Jus 11.05(4)(b)(b) If the claimant fails to take advantage of a source of benefits that would have been available to the claimant or that would have reimbursed the claimant for all or a portion of an economic loss, the department shall reduce or deny an award to the extent that it would have been paid by such source of benefits. The department may waive this requirement in the interest of justice. Jus 11.05(5)(5) Awards to minor dependents. The department may award benefits to the parent of a minor dependent child, the child’s guardian or to such person, or trustee, for the minor dependent child’s use as may be found to be best calculated to serve the interest of the child or for the support and maintenance of a minor dependent child or children. Jus 11.05(6)(6) Awards to providers. The department may pay any portion of an award directly to the provider of any service which is the basis for that portion of the award. Jus 11.05(7)(7) Awards not subject to attachment. No award made under this subchapter may be subject to execution, attachment, garnishment or other process, except that an award for economic loss is not exempt from a claim of a creditor to the extent that the creditor provided products, services or accommodations, the costs of which are included in the award. Jus 11.05(8)(8) Actual loss. The department may not make an award when the department determines in a particular case that the claimant would not ordinarily have been required to pay for the services but for ch. 949, Stats. Jus 11.05(9)(9) Dependents. If 2 or more dependents are entitled to the award as a result of the death of a victim, the department shall apportion the award among the dependents. The department may apportion the award among the dependents in equal amounts. Jus 11.05(10)(10) Probate award. The department may apportion an award for a victim’s economic loss in a manner which the department determines to be just or in the best interest of the applicant. Jus 11.05(11)(11) Periodic awards. In the case of the death of the victim or in the case of a protracted loss of earnings, the department may make periodic awards. The department shall periodically verify whether the claimant is entitled to continue to receive such payments. Jus 11.05 HistoryHistory: Cr. Register, February, 1992, No. 434, eff. 3-1-92; CR 15-058: am. (4) (a) (intro.), (7) Register May 2016 No. 725, eff. 6-1-16; correction in (6) made under s. 13.92 (4) (b) 7., Stats., Register May 2016 No. 725; CR 19-136: am. (1) (c), (2), cons. and renum. (3) (intro.) and (a) to (3) and am., r. (3) (b), am. (4) (a) 4. Register September 2021 No. 789, eff. 10-1-21. Jus 11.06(1)(1) Eligible providers. Eligible providers of mental health treatment under this subchapter include a qualified treatment trainee under clinical supervision as defined by s. DHS 35.03 (17m) or any of the following individuals licensed by the state in which he or she practices: Jus 11.06(1)(a)(a) A physician who has completed a residency in psychiatry. Jus 11.06(2)(2) Eligible services. Eligible types of mental health treatment under this subchapter include: Jus 11.06(2)(a)(a) Inpatient psychiatric services provided within the psychiatric unit of a general hospital or a psychiatric facility. Jus 11.06(2)(d)(d) Complementary mental health services may be considered for payment by the department if administered in conjunction with any of the above-listed treatments, prescribed by an eligible provider, and administered by an accredited practitioner. Jus 11.06(3)(3) Limitations on eligible services. Limitations on eligible services include: Jus 11.06(3)(a)(a) Collateral interviews are limited to the non-offending family members. Jus 11.06(3)(b)(b) Group psychotherapy sessions are limited to those in which not more than 10 individuals receive psychotherapy services together from an eligible provider. Jus 11.06(3)(c)(c) Court appearances or evaluations are not eligible services. Jus 11.06(4)(4) Authorization process. The department shall require eligible providers of services to submit an authorization request which may include the following information: Jus 11.06(4)(a)(a) The name, address, and medical assistance or identification number of the provider conducting the diagnostic examination and performing the psychotherapy services. Jus 11.06(4)(b)(b) A detailed summary of the problems for which the victim or claimant is seeking mental health treatment. Jus 11.06(4)(c)(c) A detailed summary of the diagnostic examination, including the severity of the victim’s or claimant’s mental illness, medically significant emotional or social dysfunctions, the medical necessity for treatment and the suggested outcome of treatment. Jus 11.06(4)(d)(d) A statement of the estimated frequency of treatment sessions and the estimated cost of treatment. Jus 11.06(4)(e)(e) A statement of the relationship between the crime and the need for treatment, and to what extent the treatment is directly related to the crime. Jus 11.06(4)(f)(f) A statement of the victim’s or claimant’s psychological condition prior to the crime. Jus 11.06(5)(a)(a) Department claims specialists shall review authorization requests for mental health claims. The department may appoint persons who meet the same minimum requirements that providers are expected to meet to review authorization requests. Jus 11.06(5)(b)(b) The department shall review the progress of the treatment periodically as the department determines it is reasonable to do so. Progress reports shall describe the victim’s current symptoms, problem changes in symptoms since the last report, progress made toward each treatment goal, a list of impediments to progress, and a plan to address impediments. Jus 11.06 HistoryHistory: Cr. Register, February, 1992, No. 434, eff. 3-1-92; CR 15-058: am. (1) (intro.), (2) (intro.) Register May 2016 No. 725, eff. 6-1-16; CR 19-136: am. (1) (intro.), (a), r. (1) (b) to (d), cr. (1) (e) to (h), am. (2) (a), (b), r. (2) (c), cr. (2) (d), am. (4) (intro.), (b), (c), (e), (f) Register September 2021 No. 789, eff. 10-1-21. Jus 11.07Jus 11.07 Limitations on awards. The department may not make an award if the department determines that any of the following apply: Jus 11.07(1)(1) The application was not filed within one year after the date of the personal injury or death, subject to the exception under s. 949.08 (1m) (b), Stats. The department may waive the one year filing requirement under this subsection in the interest of justice. Jus 11.07(2)(2) The incident upon which the claim is based was not reported to a law enforcement agency within 5 days of its occurrence or, if the incident could not have reasonably been reported within that period, within 5 days of the time when a report could reasonably have been made. The department may waive the time limit on reporting under this subsection in the interest of justice. Jus 11.07(2)(a)(a) Lack of knowledge of the provisions of ch. 949, Stats., and of this subchapter does not extend the time in which an incident must be reported to a law enforcement agency. Jus 11.07(3)(3) The victim engaged in conduct which substantially contributed to the victim’s injury or death or engaged in conduct in which the victim could have reasonably foreseen could lead to injury or death. This paragraph does not apply to awards to victims under s. 949.03 (1) (a), Stats. In determining whether the victim engaged in contributory conduct under this subsection the department: Jus 11.07(3)(a)(a) Shall consider any behavior of the victim that may have directly or indirectly contributed to the victim’s injury or death including consent, provocation, verbal utterance, gesture, incitement, prior conduct of the victim and the ability of the victim to have reasonably avoided the incident upon which the claim is based. Jus 11.07(3)(b)(b) May consider whether the victim was under the influence of an intoxicant or controlled substance at the time of the incident upon which the claim is based; whether the victim has engaged in an ongoing course of criminal conduct within 5 years or less of the date of the incident upon which the claim is based; or whether the incident upon which the claim is based occurred while the victim was incarcerated in a city or county detention facility pending the disposition of criminal charges or, after being convicted of an offense, was serving a sentence of imprisonment. Jus 11.07(4)(4) The victim committed a crime which caused, or contributed to, the victim’s injury or death. Jus 11.07(5)(5) The victim has not cooperated with appropriate law enforcement agencies. In this subsection “cooperation with appropriate law enforcement agencies” means the victim has cooperated with the reasonable requests of the law enforcement agency investigating the incident, including: Jus 11.07(5)(a)(a) Providing a true, accurate and complete description of the crime, including the circumstances which led to the crime. Jus 11.07(5)(b)(b) Describing the assailant and telling the appropriate law enforcement agency the offender’s name and whereabouts, if known. Jus 11.07(5)(c)(c) Reporting the incident to the law enforcement agency within a reasonable time so as to enable the agency to identify and apprehend the offender, identify witnesses, and conduct a thorough investigation of the incident. Jus 11.07(5)(d)(d) Participating, if requested by the law enforcement agency, in follow-up investigative activities including, but not limited to, viewing photographs and lineups and other investigative procedures. Jus 11.07(5)(e)(e) Agreeing to participate in the initiation of proceedings against the offender, agreeing to appear and testify on behalf of the prosecution and assisting in the prosecution of the offender at all stages. The department may waive the provisions of this paragraph upon good cause shown by the victim that the failure to cooperate in the prosecution is due to a compelling health or safety reason. Jus 11.07(6)(6) The applicant has not cooperated with the department in the administration of the program. Cooperation with the department means that the applicant provides all information deemed necessary by the department within 30 days of its request. The department may waive this requirement upon good cause shown by the applicant that the failure to take the steps required by the department was beyond the control of the applicant. Jus 11.07(7)(7) The injured victim is an adult passenger in a vehicle operated by the offender and the crime involved is specified in s. 346.63 (2) or 940.25, Stats., and the passenger knew the offender was under the influence of an intoxicant, a controlled substance, or another drug to a degree that renders him or her incapable of safely driving. This subsection does not apply if the victim is also a victim of a crime specified in s. 940.30, 940.305, 940.31 or 948.30, Stats. This subsection applies, however, if the victim is also a victim of a crime specified in s. 940.09, Stats. Jus 11.07(8)(8) The victim has been certified to the department under s. 49.855 (7), Stats., as being delinquent in child support or maintenance payments. Jus 11.07(9)(9) The award would unjustly benefit the offender or accomplice. In this subsection “unjust benefit” includes: Jus 11.07(9)(a)(a) The extent to which the offender or accomplice has the legal responsibility to reimburse the victim or claimant for economic loss. Jus 11.07(9)(b)(b) The extent to which an award to a victim or claimant will provide support to the offender or accomplice by paying for living expenses of the offender or accomplice including food, shelter, clothing and entertainment. Jus 11.07 HistoryHistory: Cr. Register, February, 1992, No. 434, eff. 3-1-92; correction in (9) (a) made under s. 13.93 (2m) (b) 12., Stats., Register, September, 1994, No. 465; corrections in (7) and (8) made under s. 13.93 (2m) (b) 7., Stats., Register September 2001 No. 549; CR 15-058: am. (2) (a) Register May 2016 No. 725, eff. 6-1-16; CR 19-136: am. (1), (2), (7) Register September 2021 No. 789, eff. 10-1-21; correction in (1) made under s. 35.17, Stats., Register September 2021 No. 789. Jus 11.09(1)(1) Petition for hearing. The applicant may petition the department for a contested case hearing to review the decision of the department. Jus 11.09(1)(a)(a) The applicant filing a petition for hearing shall be designated as “petitioner.” The department of justice shall be designated as“respondent.” Jus 11.09(1)(b)(b) The petition for hearing shall request that a hearing be granted in the particular case and clearly state the particular finding or findings of the department which applicant claims are in error. Jus 11.09(1)(c)(c) The applicant shall file with the department the written request for a contested case hearing within 30 days of the date of the written decision of the department. The time during which the applicant may request a contested case hearing to review the decision of the department shall begin with the date of mailing of the decision. Jus 11.09(1)(d)(d) The department shall either grant or deny the request for a contested case hearing by mailing to the petitioner an order granting or denying the request. If a hearing is not granted within 60 days of receipt of the request for a contested case hearing, the request shall be deemed denied. Jus 11.09(2)(2) Prehearing conference. In any action to be set for hearing, the hearing examiner may conduct a prehearing conference in person or by telephone in all proceedings for hearings under this subchapter. Jus 11.09(2)(a)(a) The hearing examiner shall attempt to obtain from the parties to the prehearing conference a stipulation as to any issue of fact or law over which there is no genuine dispute, including: Jus 11.09(2)(a)2.2. Whether the applicant sustained injuries or death as a direct result of a crime. Jus 11.09(2)(a)5.5. The amount the applicant has been, or expects to be, compensated from other sources.
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