Chapter Jus 11

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 History 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 11.06 Jus 11.06 Mental health treatment.

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(1)(e) (e) A psychologist.

Jus 11.06(1)(f) (f) A marriage and family therapist.

Jus 11.06(1)(g) (g) A professional counselor.

Jus 11.06(1)(h) (h) A clinical social worker.

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)(b) (b) Outpatient psychotherapy services.

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) (5) Review process.

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 History 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 11.07 Jus 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(2)(b) (b) Compliance with sub. (5) (a), (b) and (c) constitutes a report to a law enforcement agency under this subsection.

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 Note Note: 1999 Wis. Act 9 repealed s. 49.855 (7), Stats.

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 History 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 11.09 Jus 11.09 Contested case hearing.

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)1. 1. Whether a crime has been committed.

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)3. 3. The nature and extent of the applicant’s injuries.

Jus 11.09(2)(a)4. 4. The economic loss sustained by the applicant.

Jus 11.09(2)(a)5. 5. The amount the applicant has been, or expects to be, compensated from other sources.

Jus 11.09(2)(b) (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.

Jus 11.09(2)(c) (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.

Jus 11.09(3) (3) Hearing practices and procedures. The hearing examiner shall conduct contested case hearings in accordance with the rules in this subsection.

Jus 11.09(3)(a) (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.

Jus 11.09(3)(b) (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.

Jus 11.09(3)(c) (c) All hearings held under this subchapter shall be class 1 proceedings as defined in s. 227.01 (3) (a), Stats.

Jus 11.09(3)(d) (d) The department shall attach to the request for a contested case hearing:

Jus 11.09(3)(d)1. 1. The application.

Jus 11.09(3)(d)2. 2. The written decision of the department.

Jus 11.09(3)(d)3. 3. The written request for a hearing.

Jus 11.09(3)(d)4. 4. The order granting the hearing.

Jus 11.09(3)(d)5. 5. A list of all interested parties.

Jus 11.09(3)(d)6. 6. Any other documents the department deems necessary.

Jus 11.09(3)(e) (e) The claimant shall proceed with the burden of proving by a preponderance of the credible evidence that:

Jus 11.09(3)(e)1. 1. A crime occurred which meets the definition under s. 949.03, Stats.

Jus 11.09(3)(e)2. 2. The victim incurred a personal injury as defined under s. 949.01 (5), Stats., or a death, as a direct result of the incident.

Jus 11.09(3)(e)3. 3. The victim or claimant suffered an economic loss as defined in s. 949.06, Stats., as a direct result of the injury or death.

Jus 11.09(3)(f) (f) The department shall have the burden of proving by the preponderance of the credible evidence any limitations to an award or any defenses to the claimant’s application.

Jus 11.09(3)(g) (g) All hearings shall be open to the public unless in a particular case the examiner determines that the hearing, or a portion thereof, shall be held in private having regard for the fact that the offender has not been convicted and for the interest of the victim.

Jus 11.09(3)(h) (h) The department or any of its authorized agents may issue subpoenas for persons or records for any investigation or hearing conducted under this subchapter and may enforce compliance with such subpoenas as provided in s. 885.12, Stats.