Chapter Jus 11

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.

Jus 11.09 History History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; CR 15-058: am. (2) (intro.), (3) (b), (c), (h) Register May 2016 No. 725, eff. 6-1-16; CR 19-136: am. (1) (d), (3) (g) Register September 2021 No. 789, eff. 10-1-21.

Jus 11.10 Jus 11.10 Review by attorney general.

Jus 11.10(1) (1) Petition for review. After entry of a decision of the hearing examiner, any party who is adversely affected by that decision may submit a written petition for review by the attorney general of the record upon which that decision was based.

Jus 11.10(1)(a) (a) The petition for review shall be served upon the attorney general and upon all other parties to the action, either personally or by certified mail, within ten days of the entry of the decision of the hearing examiner.

Jus 11.10(1)(b) (b) The petition shall specify in detail the grounds for the review, the relief which the petitioner seeks and citation to any supporting authorities.

Jus 11.10(1)(c) (c) Papers and petitions under this section shall be served in person or by mail and shall be addressed: Attorney General, 114 East State Capitol, Madison, WI 53702.

Jus 11.10(2) (2) Discretion. Within 14 days of receipt of the petition for review, the attorney general shall issue an order either granting or denying review of the decision. The attorney general shall not delegate the review to anyone who has had prior involvement in either the contested case hearing or decision-making process.

Jus 11.10(2)(a) (a) If the order of the attorney general denies review, the decision of the hearing examiner shall become the final decision of the department.

Jus 11.10(2)(b) (b) If the order of the attorney general grants review, the attorney general may order a transcript of the proceedings before the hearing examiner, the filing of briefs, presentation of oral arguments, or rehearing of all or part of the evidence presented at the original contested case hearing.

Jus 11.10(3) (3) Limitations. The petition for review by the attorney general under this section is not a prerequisite for the petition for rehearing under s. 227.49, Stats., or under s. 227.52, Stats. A petition for review pending under this section shall not in any manner affect or extend the time limits for filing an action under ss. 227.49 and 227.52, Stats.

Jus 11.10(4) (4) Attorney general’s decision. The attorney general’s decision shall set forth the findings of fact and conclusions of law which are at variance with, or in addition to, the determinations of the hearing examiner. The decision shall state the evidence relied on and the reasons for the decision.

Jus 11.10 History History: Cr. Register, February, 1992, No. 434, eff. 3-1-92.

Jus 11.11 Jus 11.11 Duties of a law enforcement agency.

Jus 11.11(1) (1) Provide forms. The department shall prescribe application forms for awards under this subchapter and may furnish law enforcement agencies with the forms. The law enforcement agency investigating a crime shall provide information as provided under s. 950.08 (2g) (b), Stats.

Jus 11.11 Note Note: A copy of the application form may be obtained from the Wisconsin department of justice at no charge.

Jus 11.11(2) (2) Provide information. Upon request by the department, any state or local agency, including a district attorney or law enforcement agency, shall make available all reports, files and other appropriate information which the department requests in order to make a determination that a person is eligible for an award under this subchapter.

Jus 11.11 History History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; CR 15-058: am. Register May 2016 No. 725, eff. 6-1-16; correction in (1) made under s. 35.17, Stats., Register May 2016 No. 725; CR 19-136: am. (1) Register September 2021 No. 789, eff. 10-1-21.

Jus 11.12 Jus 11.12 Attorney fees.

Jus 11.12(1) (1) Amount of fees. The department shall determine and allow reasonable attorney fees, commensurate with legal services rendered, which shall be paid directly to an attorney representing the claimant.

Jus 11.12(1)(a) (a) Attorney fees may not exceed 10% of the amount the attorney assisted the applicant in obtaining.

Jus 11.12(1)(b) (b) Attorney fees shall be paid out of, not in addition to, the amount awarded to the claimant.

Jus 11.12(1)(c) (c) Where there is no dispute of the department’s determination of the amount of the award due to the claimant, and where no contested case hearing is held, the attorney fee shall be the lesser of 10% of the amount the attorney assisted the claimant in obtaining or $100.

Jus 11.12(2) (2) No additional attorney fees. No person may ask for, contract for or receive any fee in excess of that allowed by the department.

Jus 11.12(2)(a) (a) The attorney shall provide a fee agreement to the department.

Jus 11.12(2)(b) (b) Whoever charges a fee in violation of s. 949.14 (1), Stats., shall forfeit double the amount retained by the attorney. This forfeiture shall be collected by this state in an action in debt, upon complaint of the department. Out of the sum received the court shall direct payment to a claimant in the amount of the overcharge.

Jus 11.12 History History: Cr. Register, February, 1992, No. 434, eff. 3-1-92.

Jus 11.13 Jus 11.13 Recovery.

Jus 11.13(1) (1) Department subrogation. Whenever an order for the payment of an award for personal injury or death is or has been made under this subchapter, the department is subrogated to the cause of action of the claimant against the person responsible for the injury or death and may bring an action against the person for the amount of the damages sustained by the claimant. The department is also subrogated to the cause of action of the claimant against one or more 3rd parties liable for the acts of the person responsible for the injury or death. If an amount greater than that paid under the award order is recovered and collected in any such action, the department shall pay the balance to the claimant. If the person responsible for the injury or death has previously made restitution payments to the general fund under s. 973.20, Stats., any judgment obtained by the department under this section shall be reduced by the amount of the restitution payments to the general fund.

Jus 11.13(2) (2) Claimant action. In addition to the authority of the department to bring an action under sub. (1), the claimant may bring an action to recover damages. In any such action, the department has subrogation rights under this section and the claimant shall join the department as a party under s. 803.03 (2) (a), Stats. After joinder, the department has the options specified in s. 803.03 (2) (b), Stats.

Jus 11.13(3) (3) Judgment allocated. If a judgment or verdict in an action under sub. (1) or (2) indicates separately economic loss and noneconomic detriment, payments on the judgment shall be allocated between them in proportion to the amounts indicated. In such an action, the judge, on timely motion, shall direct the jury to return a special verdict, indicating separately the awards for noneconomic detriment, punitive damages and economic loss.