Chapter Jus 11

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.

Jus 11.13(4) (4) Civil action not necessary. In order to receive compensation under ch. 949, Stats., it is not necessary that an applicant first bring an action against the offender. If such an action is brought, and the applicant is successful, the proceeds of the action are subject to the provisions of this subchapter. The department shall notify the claimant of the requirements of this paragraph at the time the department makes an award to the claimant.

Jus 11.13(5) (5) Applicant responsibility. If a claimant receives from any source or third party any payment for damages, injuries or economic loss for which the applicant has been previously compensated under ch. 949, Stats., and this subchapter the applicant shall:

Jus 11.13(5)(a) (a) Immediately notify the department.

Jus 11.13(5)(b) (b) Within 30 days, reimburse the department, to the extent of the payment received, the amount previously awarded the applicant under ch. 949, Stats.

Jus 11.13(6) (6) Department responsibility. The department shall notify a claimant of the requirements under sub. (5).

Jus 11.13 History History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; CR 15-058: am. (1), (4), (5) (intro.) Register May 2016 No. 725, eff. 6-1-16.

subch. II of ch. Jus 11 Subchapter II — Sexual Assault Forensic Examination Compensation

Jus 11.14 Jus 11.14 Description of the program.

Jus 11.14(1) (1) Authority and purpose. This subchapter is promulgated under s. 949.22, Stats., for the purpose of administering the awards of compensation to health care providers who perform sexual assault forensic examinations and providing procedures to ensure any limitation of an award is calculated in a fair and equitable manner.

Jus 11.14(2) (2) Applicability. This subchapter applies to all applications for an award to cover the costs of performing a sexual assault forensic examination.

Jus 11.14(3) (3) Administration. This subchapter shall be administered by the director appointed by the attorney general to administer ch. 949, Stats.

Jus 11.14(4) (4) Service and filing. Papers an required to be filed with the department of justice shall be filed either in person or by mail and shall be addressed: Wisconsin Department of Justice, Office of Crime Victim Services, 17 West Main Street, Post Office Box 7951, Madison, WI 53707-7951. The papers are deemed filed when received by the department.

Jus 11.14(5) (5) Definitions. In this subchapter:

Jus 11.14(5)(a) (a) “Department” has the meaning specified in s. 949.20 (2), Stats.

Jus 11.14(5)(b) (b) “Sex offense” has the meaning specified in s. 949.20 (7), Stats.

Jus 11.14 History History: CR 15-058: cr. Register May 2016 No. 725; correction in (5) (intro.) made under s. 35.17, Stats., Register May 2016 No. 725; correction in (4) under 13.92 (4) (b) 6., Stats., Register June 2016 No. 726.

Jus 11.15 Jus 11.15 Eligibility for an award.

Jus 11.15(1) (1) Incorporation of subchapter ii of ch. 949, stats. The health care provider must follow all requirements of subch. II of ch. 949, Stats.

Jus 11.15(2) (2) Examination services for which costs are covered. A health care provider is eligible to be paid an award for all of the following services:

Jus 11.15(2)(a) (a) Collection of the victim’s medical history.

Jus 11.15(2)(b) (b) Collection of a forensic history of the events of the assault.

Jus 11.15(2)(c) (c) Physical examination of the victim for evidence of the assault.

Jus 11.15(2)(d) (d) Photographs of the physical evidence of the sex offense, if the health care provider conducting the examination has been trained to take photographs for use as evidence.

Jus 11.15(2)(e) (e) Evaluation, testing, and prophylaxis for sexually transmitted diseases.

Jus 11.15(2)(f) (f) Evaluation of the risk of pregnancy.

Jus 11.15(2)(g) (g) Collection of blood and urine using the collection kit provided by law enforcement.

Jus 11.15(3) (3) Other costs which are covered. A health care provider is also eligible to be reimbursed for other expenses incurred in conducting the examination, including but not limited to, the cost for the use of its facility for the examination.

Jus 11.15(4) (4) Relationship with s. 50.375, stats. Nothing in this subchapter affects a health care provider’s duties under s. 50.375, Stats.

Jus 11.15 History History: CR 15-058: cr. Register May 2016 No. 725.

Jus 11.16 Jus 11.16 Procedures for payment of awards of examination costs.

Jus 11.16(1) (1) Itemized bill. A health care provider seeking an award for examination costs shall provide an itemized bill to the department with individual charges listed for each service for which reimbursement is sought. Only one itemized bill shall be submitted for each examination. The health care provider shall also indicate the amount sought for all of the following categories of examination costs:

Jus 11.16(1)(a) (a) Services of the provider.

Jus 11.16(1)(b) (b) Facilities used for the examination.

Jus 11.16(1)(c) (c) Any other expenses.

Jus 11.16(2) (2) No billing of victim. Per s. 949.26 (2) (a), Stats., a health care provider seeking an award under this subchapter may not seek payment for any examination costs from the victim or any guardian of the victim.

Jus 11.16(3) (3) Payment directly to health care provider. The department will pay the award directly to the health care provider that performed the examination.

Jus 11.16(4) (4) Maximum amount of award. The department will pay two-thirds of the amount billed for eligible services, up to a maximum of $1200 for each examination. In exceptional cases, the department in its sole discretion may approve an award in excess of the maximum amount if the health care provider submits evidence that that maximum amount did not fairly and equitably compensate it for the costs incurred in conducting the examination. Beginning January 1, 2017, the maximum amount of an award shall be adjusted annually by the “inflation factor” as defined in s. 79.05 (1) (am), Stats., and certified by the department of revenue under s. 79.05 (2m), Stats.

Jus 11.16 History History: CR 15-058: cr. Register May 2016 No. 725.