PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Addition of sections 525.1(p), 525.2(e) and 525.12(i) to Title 9 NYCRR.
Statutory authority:
Executive Law, section 631
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The proposed regulations are necessary for the proper implementation of chapter 162 of the Laws of 2008, which took effect on September 1, 2008.
Subject:
Loss of earnings.
Purpose:
To establish the process through which claimants may be reimbursed by the Board for loss of earnings.
Text of emergency/proposed rule:
A new subdivision (p) is added to section 525.1 to read as follows:
(p) "Hospitalization" shall mean the period during which a person is a patient in or resident of a licensed facility for (1) emergency care or ambulatory surgery, or (2) in-patient treatment at: a general hospital, a psychiatric center, a physical rehabilitation facility or a residential health care facility.
A new subdivision (e) is added to section 525.2 to read as follows:
(e) If a person is eligible to file a claim for loss of earnings as a parent or guardian during the period of hospitalization of a child victim under the age of eighteen for injuries sustained as a direct result of a crime, all other requests for the reimbursement of related, out-of- pocket expenses must be submitted together under the name of one, eligible parent or guardian. Should more than one parent or guardian be responsible for the child victim, the Board shall determine all other requests for reimbursement of such expenses under the first, eligible claim accepted by the Board. All claims received for loss of earnings as a parent or guardian during the period of hospitalization of the same child victim under the age of eighteen for injuries sustained as a direct result of a crime shall be cross-referenced to ensure no duplicate awards are made.
A new subdivision (i) is added to section 525.12 to read as follows:
(i) (1) Any award for loss of earnings shall include time which an employee: (i) was absent from work and not paid for the day or time off; (ii) was absent from work and utilized accumulated paid leave available to him or her by the employer; or (iii) had taken leave of employment without pay.
(2) An award for loss of earnings by a parent or guardian as a result of the hospitalization of a child victim under the age of eighteen for injuries sustained as a direct result of a crime, shall further be limited by the following: (i) the victim's full loss of earnings shall take priority over any other eligible claim for loss of earnings by a parent or guardian based on the victim's hospitalization; (ii) should more than one parent or guardian be eligible for an award for loss of earnings, the board shall only award the first eligible claim received, in addition to the victim's claim, per hospitalization period or portion of such period; (iii) the total weekly award for an eligible claimant or claimants shall not exceed six hundred dollars. See Executive Law section 631 (3); and (iv) the total loss of earnings award for an eligible claimant or claimants shall not exceed thirty thousand dollars. See Executive Law section 631 (2).
This notice is intended:
To serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire January 18, 2009.
Text of rule and any required statements and analyses may be obtained from:
John Watson, General Counsel, New York State Crime Victims Board, One Columbia Circle, Suite 200, Albany, NY 12203, (518) 457-8066, email: johnwatson@cvb.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory authority: The New York State Executive Law, section 623 creates the Crime Victims Board (the Board) and grants the Board the authority to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions and purposes of Article 22 of the Executive Law. New York State Executive Law, section 631 provides that the Board may make awards for out-of-pocket losses which include loss of earnings. Chapter 162 of the Laws of 2008 added an award for loss of earnings to include earnings lost by a parent or guardian as a result of the hospitalization of a child victim under age eighteen for injuries sustained as a direct result of a crime.
2. Legislative objectives: By enacting the New York State Executive Law, section 631 and the subsequent amendment in Chapter 162 of the Laws of 2008, the Legislature sought to ensure that the Board could reimburse out-of-pocket losses for loss of earnings, including earnings lost by a parent or guardian as a result of the hospitalization of a child victim under age eighteen for injuries sustained as a direct result of a crime.
3. Needs and benefits: Currently, in New York State Executive Law, article 22, and 9 NYCRR 525, hospitalization is not explicitly defined, nor are the circumstances enumerated under which the Board would consider loss of earnings generally, or specifically those of a parent or guardian during the period of hospitalization of a child victim under the age of eighteen for injuries sustained as a direct result of a crime. From recent history to date, the Board has consistently interpreted the statute to mean it should base determinations for loss of earnings on time which an employee was not paid due to absence from work or in instances where they utilized accumulated, paid leave, as such leave is something which an employee earns. With the amendments contained in Chapter 162 of the Laws of 2007, it was deemed necessary to codify this current practice and make additional clarifications related specifically to how the Board would define hospitalization, and make determinations for earnings lost by a parent or guardian as a result of the hospitalization of a child victim under age eighteen for injuries sustained as a direct result of a crime, with priority given to the victim's loss of earnings, all in order for claimants or potential claimants to be aware of what the Board would consider eligible for an award under its statutory authority.
4. Costs: a. Costs to regulated parties. These proposed regulations would be codifying the Board's current interpretation of its statutory authority, and establishing a procedure for determining a newly created, statutory award, therefore it is not expected that the proposed regulations would impose any additional costs to the agency or State which would not be created by the adoption of this new law. The proposed regulatory changes may, in fact, result in saving the agency and State money when the volume of otherwise ineligible claims filed with the Board decreases because claimants or potential claimants would be made aware of what the Board would consider eligible for an award under its statutory authority.
b. Costs to local governments. These proposed regulations do not apply to local governments and would not impose any additional costs on local governments.
c. Costs to private regulated parties. The proposed regulations do not apply to private regulated parties and would not impose any additional costs on private regulated parties.
5. Local government mandates: These proposed regulations do not impose any program, service duty or responsibility upon any local government.
6. Paperwork: These proposed regulations do not require any additional paperwork requirements.
7. Duplication: These proposed regulations do not duplicate any other existing state or federal requirements.
8. Alternatives: Although the current Board has consistently applied its interpretation of Executive Law, section 631 as it relates to determining loss of earnings, not implementing these proposed regulatory changes could result in inconsistent claimant award decisions in the future. Alternatives to the computation of loss of earnings based on whether or not a claimant utilized their accumulated leave were examined, but the Board determined it should continue its current methodology, as enumerated in the proposed 525.12(i)(1). Another alternative to these proposed regulatory changes would be for the Board to apply the more comprehensive definition of hospitalization as provided in current New York State Public Health Law, section 2961(11). Such an application is, however, impractical as this definition is excessively broad in scope and the Board is not limited to in-state medical providers, it also provides awards to claimants in other states and countries, which necessitates a more concise and easily applicable definition.
9. Federal standards: Permissible under 42 USC 10602(b)(1)(B).
10. Compliance schedule: The regulations will be effective on the effective date of Chapter 162 of the Laws of 2008 (September 1, 2008).
Regulatory Flexibility Analysis
The New York State Crime Victims Board (the Board) projects there will be no adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments in the State of New York as a result of this proposed rule change. This proposed rule change simply defines hospitalization and enumerates the circumstances under which the Board would consider loss of earnings generally, and specifically those of a parent or guardian during the period of hospitalization of a child victim under the age of eighteen for injuries sustained as a direct result of a crime. Since nothing in this proposed rule change will create any adverse impacts on any small businesses or local governments in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Regulatory Flexibility Analysis is not required and therefore one has not been prepared.
Rural Area Flexibility Analysis
The New York State Crime Victims Board (the Board) projects there will be no adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas in the State of New York as a result of this proposed rule change. This proposed rule change simply defines hospitalization and enumerates the circumstances under which the Board would consider loss of earnings generally, and specifically those of a parent or guardian during the period of hospitalization of a child victim under the age of eighteen for injuries sustained as a direct result of a crime. Since nothing in this proposed rule change will create any adverse impacts on any public or private entities in rural areas in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Rural Area Flexibility Analysis is not required and therefore one has not been prepared.
Job Impact Statement
The New York State Crime Victims Board (the Board) projects there will be no adverse impact on jobs or employment opportunities in the State of New York as a result of this proposed rule change. This proposed rule change simply defines hospitalization and enumerates the circumstances under which the Board would consider loss of earnings generally, and specifically those of a parent or guardian during the period of hospitalization of a child victim under the age of eighteen for injuries sustained as a direct result of a crime. Since nothing in this proposed rule change will create any adverse impacts on jobs or employment opportunities in the state, no further steps were needed to ascertain these facts and none were taken. As apparent from the nature and purpose of this proposed rule change, a full Job Impact Statement is not required and therefore one has not been prepared.
