Wisconsin Legislature: Jus 11.04(6)

(i) A release authorizing the department to obtain any report, document or other information it needs in its determination of the claim.

(j) Any additional information or material the department determines is reasonably related to the application.

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

(3) Incomplete applications. Whenever an application is not complete or the department otherwise lacks information required under sub. (2), the department shall request the applicant to provide the required information. If the applicant fails within 30 days to provide the information or to indicate why the information is unavailable, the applicant shall be denied an award under s. Jus 11.07 (7).

History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; CR 19-136: am. (2) (c), (g), (h) Register September 2021 No. 789, eff. 10-1-21.

Jus 11.03 Claims investigation and decision.

(1) Claims determination. Claims may be investigated and verified, and an eligibility determination may be made, regardless of whether the alleged offender has been apprehended, prosecuted for, or convicted of, any crime based upon the same incident or has been found not guilty of such crime.

(2) Suspend proceedings. The department may suspend proceedings upon its own motion or that of a prosecuting attorney for a period it deems appropriate on the grounds that a prosecution for an offense arising out of the act has been commenced or is imminent.

(3) Written decision. The department, by the Crime Victim Compensation Program director, shall issue a written decision setting forth the denial of the claim and the reasons, and shall furnish the applicant with a copy of the decision. The decision shall also advise the applicant of any right to a contested case hearing.

(4) Closed claims. A claim for compensation is closed when any of the following conditions occur:

(a) The statutory maximum allowed under s. 949.08 (1m) (a) and (b), Stats., has been awarded by the department.

(b) The 30 day time period for appealing the decision of the department has passed without a request from the applicant for a contested case hearing.

(c) The 30 day period for appealing the decision of the hearing examiner has passed without further appeal being made by the applicant.

History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; correction in (4) (a) made under s. 13.92 (4) (b) 7., Stats., Register May 2016 No. 725; CR 19-136: am. (1), (3), (4) (a) Register September 2021 No. 789, eff. 10-1-21; correction in (1) made under s. 35.17, Stats., Register September 2021 No. 789.

Jus 11.04 Economic loss. The department may make awards for unreimbursed economic losses as follows:

(1) Actual cost of reasonable and necessary medical treatment, subject to the limits set forth under s. 949.06 (1) (bg), Stats.

(2) Loss of actual earnings if the victim was employed or loss of potential earnings if the victim was not employed at the time of the crime based upon a sufficient showing by the victim that the victim incurred an actual loss of earnings. The department shall determine an award for work loss incurred as a direct result of an injury as follows:

(a) If the victim was employed at the time of the injury, an award for work loss shall be equal to the victim’s unreimbursed net salary. In this paragraph “net salary” means income less deductions for federal withholding tax, state withholding tax, Medicare, and FICA tax. In this paragraph “disability period” means the length of time a victim is unable to work as a direct result of personal injuries caused by the crime.

(b) If the victim was not employed at the time of the injury or, if as a direct result of the injury, the victim suffered a disability causing a loss of potential earnings, the award may be based upon a sufficient showing by the victim that the victim incurred an actual loss of earnings. The victim must have received an offer of employment and must have been unable to begin employment as a direct result of a disability caused by the crime.

(c) The amount of the award under pars. (a) and (b) may be reduced by any income from substitute work actually performed by the victim or by income the victim would have earned in, [if] available, appropriate substitute work the victim was capable of performing but unreasonably failed to undertake.

(d) If the victim was self-employed at the time of the injury, the loss of actual earnings may be determined by taking into account the net business profit reported on the previous year’s federal income tax return or the current year’s net business profit based on current financial records. Net loss of earnings shall be determined by deducting self-employment tax as set forth by the IRS, federal withholding tax, state withholding tax, Medicare, and FICA tax from the net business profit.

(dm) The disability period shall be determined by a physician if it exceeds 2 weeks from the date of the crime. If a physician determines that a claimant’s disability is partially related to the victimization, the department shall reimburse the percentage of lost net wages determined by the physician to be directly related to the crime.

(e) If the victim failed to report earnings to federal and state revenue departments, if required to do so by law, the department may not make an award under this subsection based upon any such unreported income.

(2m) The department may award each parent of a victim not more than $3,000 total for reimbursement of mental health treatment and for work loss directly related to the crime.

(3) Actual costs of ordinary, necessary and reasonable household and caregiver services in an amount sufficient to ensure that the victim’s duties and responsibilities are continued until the victim is able to resume the performance of the duties or until the cost of services reaches the maximum allowable under s. 949.08 (1m) (a), Stats., whichever is less. The department may require that a physician certify that the victim is unable to perform the household or caretaker duties and responsibilities.

(3m) If as a direct result of the injury, the victim suffered a protracted disability, reasonable and necessary housing accessibility adaptations, not to exceed the limitations of s. 949.06 (1) (br), Stats.

(4) Reasonable replacement value of any clothing and bedding that is held for evidentiary purposes, not to exceed the limitations of s. 949.06 (1) (c), Stats.

(4m) Reasonable replacement value of any computer or mobile telephone that is held for evidentiary purposes, not to exceed the limitations of s. 949.06 (1) (cg), Stats.

(5) Reasonable replacement value of property, other than clothing and bedding under s. 949.06 (1) (c), Stats., that is held for evidentiary purposes and is rendered unusable as a result of crime laboratory testing, not to exceed the limitations of s. 949.06 (1) (cm), Stats.

(6) Reasonable funeral and burial expenses not to exceed the limitations of s. 949.06 (1) (d), Stats. The costs of a reception, wake, or purchase of clothing for burial are not recoverable expenses under this section.

(7) Loss of support, which shall be determined on the basis of the victim’s net annual income at the time of death, and calculated in accordance with s. 949.06 (1) (e), Stats.

(8) Reasonable and necessary costs associated with securing and cleaning up a crime scene not to exceed the limitations under s. 949.06 (1) (f), Stats. In this subsection:

(a) “Securing a crime scene” means taking reasonable steps to make the crime scene free of danger and the risk of future loss.

(b) “Cleaning up a crime scene” means removing or attempting to remove from the crime scene any stains or debris caused by the crime or the processing of the crime scene.

History: Cr. Register, February, 1992, No. 434, eff. 3-1-92; correction in (6) made under s. 13.92 (4) (b) 7., Stats., Register May 2016 No. 725; correction in (3) under 13.92 (4) (b) 7., Stats., Register June 2016 No. 726; CR 19-136: am. (1), (2) (a), (d), cr. (2) (dm), (2m), am. (3), cr. (3m), (4m), am. (6), (7), (8) (a) Register September 2021 No. 789, eff. 10-1-21.

Jus 11.05 Awards.

(1) To whom payable. The department may make an award for economic loss to or for the benefit of any of the following persons:

(a) A victim.

(b) A dependent.

(c) A third person, other than a collateral source or business, that has incurred an expense as a direct result of the victim’s personal injury or death.

(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 11.06 Mental 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.

(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 11.07 Limitations 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.