D. Minnesota
Minnesota law provides that the costs incurred by a health care provider in “the examination of a victim of criminal sexual conduct when the examination is performed for the purpose of gathering evidence shall be paid by the county in which the criminal sexual conduct occurred.” Minn. Stat. § 609.35(a). It provides that “[t]hese costs include, but are not limited to, full cost of the rape kit examination, associated tests relating to the complainant’s sexually transmitted disease status, and pregnancy status.” Id. Thus, there is no state-wide rule in Minnesota and examination costs are handled on a county-by-county basis. Summary of factual data and analytical methodologies: With respect to the scope of services eligible for an award, the proposed rules are based on (1) analysis by DOJ crime victim services unit staff of the best practices for conducting sexual assault forensic examinations and (2) analysis by DOJ legal staff of the definition of “examination costs” in s. 949.20(3), Stats. With respect to the services that are covered, DOJ consulted the federal SAFE Protocol discussed above in determining the services that would be eligible for an award.
With respect to the level of reimbursement, the proposed rules are based on analysis by DOJ crime victim services staff of the amounts health care providers are currently billing the SAFE Fund for sexual assault forensic examinations as well as an analysis of the limits approved by other states. In fiscal year 2012, the SAFE Fund paid $321,506 in examination costs for 340 exams (an average of $945.61 per exam). In fiscal year 2013, the SAFE Fund paid $433,567 in examination costs for 460 exams (an average of $942.54 per exam). In fiscal year 2014, the SAFE Fund paid $686,878 in examination costs for 720 exams (an average of $954.00 per exam). DOJ chose the $1200 maximum because it should allow all SAFE examination centers to be able to continue to provide services for the victims of sexual assault.
In determining the appropriate maximum amount of reimbursement, DOJ also examined the levels of reimbursement used by other states, including the neighboring states discussed above.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report: DOJ does not anticipate any economic or fiscal impact on specific businesses, business sectors, public utility ratepayers, local governments, or the State’s economy as awhile. The regulations will only affect health care providers that perform sexual assault sexual forensic examinations. Those providers which are small businesses should be able to comply with the regulation without the need for special accommodation. The costs of compliance should be minimal because the rules only require submitting an itemized bill, something which small businesses already do in the ordinary course of business to secure payment for their services.
The economic impact on the economy as a whole and the health care sector in particular will be minimal. The SAFE Fund paid $686,878 in awards of examination costs in fiscal year 2014, which is not enough to impact the economy of the entire state or a particular sector of business. Further, the regulations would have no economic impact effect in many instances. Only health care providers that submit claims in excess of $1200 will be affected negatively and these providers will have their awards reduced rather than eliminated completely. The regulation should not affect a substantial amount of claims, however, because the current average award is $954.00. Health care providers also will not be paid for services which are not “examination costs” as defined in the statute, but these providers will be able to seek payment of these costs from other sources.
Effect on small business: Based on agency staff analysis and the comment and review process discussed above and in the economic impact report that is being simultaneously submitted by DOJ, pursuant to s. 227.137, Stats., DOJ has concluded that the proposed rules will not have a significant effect on small businesses. Agency contact person: Assistant Attorney General Brian P. Keenan, Wisconsin Department of Justice, 17 West Main Street, P.O. Box 7857, Madison, Wisconsin 53707-7857; phone (608) 266-0020; email: keenanbp@doj.state.wi.us. Place where comments are to be submitted and deadline for submission: A public hearing was held on September 8, 2015 at 1:30 p.m. No comments were received at the public meeting. Comments were also invited to be submitted to the contact person for one week following the public hearing. No comments were submitted.
TEXT OF THE PROPOSED PERMANENT RULES
SECTION 1. Jus 11 Subchapter I (title) (precedes Jus 11.01) is created to read:
SUBCHAPTER I
CRIME VICTIM COMPENSATION
SECTION 2. Jus 11.01 (1) to (4) and (5) (intro.) are amended to read:
Jus 11.01 Description of the program. (1) AUTHORITY AND PURPOSE. This chapter subchapter is promulgated pursuant to s. 949.02, Stats., for the purpose of administering the awards for the victims of crimes program in Wisconsin which provides assistance to innocent victims of crimes and their families in order to ease their financial burdens. (2) APPLICABILITY. This chapter subchapter applies to all persons who apply for financial assistance from the awards for the victims of crimes program and to all related matters, proceedings and hearings.
(3) ADMINISTRATION. Chapter 949, Stats., and this chapter subchapter shall be administered by a director appointed by the attorney general. (4) SERVICE AND FILING. Papers and petitions required to be served upon, or filed with the department of justice, by this chapter subchapter shall be served either in person or by mail and shall be addressed: Wisconsin Department of Justice, Office of Crime Victim Services, 123 West Washington Avenue, Post Office Box 7951, Madison, WI 53707−7951. The papers and petitions are deemed served or filed when received by the department.
(5) DEFINITIONS. In this chapter subchapter:
SECTION 3: Jus 11.05 (4) (a) (intro.) and (7) are amended to read:
(4) COLLATERAL SOURCES. (a) Any award made under this chapter subchapter shall be reduced by the amount of any payment received, or to be received, as a result of the injury or death:
(7) AWARDS NOT SUBJECT TO ATTACHMENT. No award made under this chapter 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.
SECTION 4: Jus 11.06 (1) (intro.) and (2) (intro.) are amended to read:
Jus 11.06 Mental health treatment. (1) ELIGIBLE PROVIDERS. Eligible providers of mental health treatment under this chapter subchapter include:
(2) ELIGIBLE SERVICES. Eligible types of mental health treatment under this chapter subchapter include:
SECTION 5: Jus 11.07 (2) (a) is amended to read:
Jus 11.07 (2) (a) Lack of knowledge of the provisions of ch. 949, Stats., and of this chapter subchapter does not extend the time in which an incident must be reported to a law enforcement agency. SECTION 6: Jus 11.09 (2) (intro.), (3) (b), (c), and (h) are amended to read:
Jus 11.09 (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 chapter subchapter.
(3) (b) Chapter HA 1 rules of procedures and practice shall apply in all contested case hearings held under this chapter subchapter, except as specifically provided otherwise. (c) All hearings held under this chapter subchapter shall be class 1 proceedings as defined in s. 227.01 (3) (a), Stats. (h) The department or any of its authorized agents may issue subpoenas for persons or records for any investigation or hearing conducted under this chapter subchapter and may enforce compliance with such subpoenas as provided in s. 885.12, Stats. SECTION 7: Jus 11.11 (1) and (2) are amended to read:
Jus 11.11 Duties of a law enforcement agency. (1) PROVIDE FORMS. The department shall prescribe application forms for awards under this chapter subchapter and shall furnish law enforcement agencies with the forms. The law enforcement agency investigating a crime shall provide forms to each person who may be eligible to file a claim.
(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 chapter subchapter.
SECTION 8: Jus 11.13 (1), (4), and (5) (intro.) are amended to read:
Jus 11.13 Recovery. (1) DEPARTMENT SUBROGATION. Whenever an order for the payment of an award for personal injury or death is or has been made under this chapter 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. (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 chapter subchapter. The department shall notify the claimant of the requirements of this paragraph at the time the department makes an award to the claimant. (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 chapter subchapter the applicant shall: SECTION 9. Jus 11 Subchapter II is created to read:
SUBCHAPTER II
