This is the preview version of the Wisconsin State Legislature site.
Please see http://docs.legis.wisconsin.gov for the production version.
(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:
1. The victim must be a victim of s. 940.01, 940.02, 940.05, 940.06, 940.07, 940.08 or 940.09, Stats.
2. A dependent may recover both under s. 949.06 (1), Stats., and this subsection subject to the limitations of s. 949.08 (1m) (a), Stats.
(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.
(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.
(4)Collateral sources.
(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:
1. From, or on behalf of, the person who committed the crime.
2. From insurance payments or programs, including workers compensation, unemployment compensation and social security.
3. From public funds.
4. From an award under s. 949.26, Stats.
5. From one or more 3rd parties held liable for the victim’s injury or death.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
History: 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 11.06Mental health treatment.
(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:
(a) A physician who has completed a residency in psychiatry.
(e) A psychologist.
(f) A marriage and family therapist.
(g) A professional counselor.
(h) A clinical social worker.
(2)Eligible services. Eligible types of mental health treatment under this subchapter include:
(a) Inpatient psychiatric services provided within the psychiatric unit of a general hospital or a psychiatric facility.
(b) Outpatient psychotherapy services.
(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.
(3)Limitations on eligible services. Limitations on eligible services include:
(a) Collateral interviews are limited to the non-offending family members.
(b) Group psychotherapy sessions are limited to those in which not more than 10 individuals receive psychotherapy services together from an eligible provider.
(c) Court appearances or evaluations are not eligible services.
(4)Authorization process. The department shall require eligible providers of services to submit an authorization request which may include the following information:
(a) The name, address, and medical assistance or identification number of the provider conducting the diagnostic examination and performing the psychotherapy services.
(b) A detailed summary of the problems for which the victim or claimant is seeking mental health treatment.
(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.
(d) A statement of the estimated frequency of treatment sessions and the estimated cost of treatment.
(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.
(f) A statement of the victim’s or claimant’s psychological condition prior to the crime.
(5)Review process.
(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.
(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.
History: 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 11.07Limitations on awards. The department may not make an award if the department determines that any of the following apply:
(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.
(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.
(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.
(b) Compliance with sub. (5) (a), (b) and (c) constitutes a report to a law enforcement agency under this subsection.
(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:
(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.
(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.
(4)The victim committed a crime which caused, or contributed to, the victim’s injury or death.
(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:
(a) Providing a true, accurate and complete description of the crime, including the circumstances which led to the crime.
(b) Describing the assailant and telling the appropriate law enforcement agency the offender’s name and whereabouts, if known.
(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.
(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.
(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.
(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.
(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. 940.30940.305940.31 or 948.30, Stats. This subsection applies, however, if the victim is also a victim of a crime specified in s. 940.09, Stats.
(8)The victim has been certified to the department under s. 49.855 (7), Stats., as being delinquent in child support or maintenance payments.
Note: 1999 Wis. Act 9 repealed s. 49.855 (7), Stats.
(9)The award would unjustly benefit the offender or accomplice. In this subsection “unjust benefit” includes:
(a) The extent to which the offender or accomplice has the legal responsibility to reimburse the victim or claimant for economic loss.
(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.
History: 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 11.09Contested case hearing.
(1)Petition for hearing. The applicant may petition the department for a contested case hearing to review the decision of the department.
(a) The applicant filing a petition for hearing shall be designated as “petitioner.” The department of justice shall be designated as“respondent.”
(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.
(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.
(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.
(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.
(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:
1. Whether a crime has been committed.
2. Whether the applicant sustained injuries or death as a direct result of a crime.
3. The nature and extent of the applicant’s injuries.
4. The economic loss sustained by the applicant.
5. The amount the applicant has been, or expects to be, compensated from other sources.
(b) Failure of any interested party to appear in person or by attorney at the prehearing conference constitutes a waiver of that interested party’s right to become a party to the administrative proceedings.
(c) Failure of petitioner to appear in person or by attorney at the prehearing conference shall result in the entry of a decision dismissing the petition.
(3)Hearing practices and procedures. The hearing examiner shall conduct contested case hearings in accordance with the rules in this subsection.
(a) The department shall request the division of hearings and appeals, department of administration, to appoint a hearing examiner to preside over the contested case hearing.
(b) Chapter HA 1 rules of procedures and practice shall apply in all contested case hearings held under this subchapter, except as specifically provided otherwise.
(c) All hearings held under this subchapter shall be class 1 proceedings as defined in s. 227.01 (3) (a), Stats.
Loading...
Loading...
Published under s. 35.93, Stats. Updated on the first day of each month. Entire code is always current. The Register date on each page is the date the chapter was last published.