OVS-33-13-00021-P Necessary Updates to Office Regulations

8/14/13 N.Y. St. Reg. OVS-33-13-00021-P

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 33

August 14, 2013

RULE MAKING ACTIVITIES

OFFICE OF VICTIM SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. OVS-33-13-00021-P

Necessary Updates to Office Regulations

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of sections 525.3(d), 525.4, 525.12(g), (h), (i), 525.15(b), (c), 525.17(a) and 525.23(c) and (g) of Title 9 NYCRR.

Statutory authority:

Executive Law, section 623; L. 2012, chs. 39 and 233; L. 2013, ch. 119

Subject:

Necessary updates to Office regulations.

Purpose:

To enact necessary updates pursuant to law, recent chapters of the Laws of 2012 and 2013 and a change of address.

Text of proposed rule:

Paragraph (1) of subdivision (d) of section 525.3 is amended to read as follows:

(1) Notwithstanding the provisions of subdivision (d) above, for all new claims received after the adoption of this rule (effective date Aug. 15, 2007), the office may authorize the reimbursement of expenses associated with the provision of home-care services rendered by a non-licensed caregiver who is a family member when:

(i) the victim is under 18 years of age;

(ii) the claimant submits a physician's statement clearly stating that in the physician's opinion the victim will benefit from such home care by a non-licensed caregiver; and

(iii) the authorization is for no more than a three month period.

Family members who perform such services shall be reimbursed at a rate no greater than the current state minimum wage for up to 40 hours per week.

Section 525.4 is amended to read as follows:

525.4 Filing of claims. In addition to the provisions contained in section 625 of the Executive Law:

(a) Claim applications shall be filed with the office in person, by mail, or electronically via facsimile, electronic mail or any other manner the office may make available for the filing of claims pursuant to subdivision one of section 305 of the New York State Technology Law. (1) If mailed, such application shall be directed to:

Office of Victim Services

[One Columbia Circle, Suite 200

Albany, New York 12203]

Alfred E. Smith State Office Building

80 South Swan Street, 2nd Floor

Albany, NY 12210-8002

(2) Emergency award claim applications may be sent via facsimile, to a number the office may make available.

(b) 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 office shall determine all other requests for reimbursement of such expenses under the first, eligible claim accepted by the office. 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.

(c) If a person is eligible to file a claim for crime scene clean-up as a surviving spouse, child or stepchild of a victim of a crime who died as a direct result of such crime and where such crime occurred in the residence shared by such family member or members and the victim, out-of-pocket expenses must be submitted together under the name of one family member who is eligible pursuant to paragraph (k) of subdivision (1) of section 624 of the Executive Law. Should more than one eligible family member file a claim requesting reimbursement for crime scene clean-up, the office shall determine all other requests for reimbursement of such expenses under the first, eligible claim accepted by the office. If the child or stepchild of a victim is a minor, the claimant filing on behalf of the child or stepchild must also be responsible for the residence shared by such family member and the victim. All claims received for crime scene clean-up as a surviving spouse, child or stepchild of a victim of a crime who died as a direct result of such crime and where such crime occurred in the residence shared by such family member or members and the victim shall be cross-referenced to ensure no duplicate awards are made.

(d) If a claim application is received complete, it shall be accepted and delivered to the Director for assignment pursuant to subdivision (a) of section 525.5 of this Part.

[(d)] (e) If a claim application is received incomplete, the office shall: (1) if submitted pursuant to subdivision (a) of section 525.20 of this Part, return the claim application to the Victim Assistance Program to complete the application, (2) if submitted directly by the claimant without any Victim Assistance Program indicated on the application, assign a staff person to obtain the necessary information from the claimant or other parties to complete the application, or (3) return it to the claimant to obtain the necessary information to complete the application.

Paragraph (7) of subdivision (g) of section 525.12 is amended to read as follows:

(7) An award for crime-related counseling expenses may be made to: (i) certain family members, pursuant to paragraph b of subdivision 1 of section 624 of the Executive Law, including spouses, grandparents, parents, stepparents, guardians, brothers, sisters, stepbrothers, stepsisters, children or stepchildren of homicide victims, if otherwise eligible and as a result of the death of such victim, (ii) certain family members, pursuant to paragraph h of subdivision 1 of section 624 of the Executive Law, including parents, stepparents, grandparents, guardians, brothers, sisters, stepbrothers or stepsisters of child victims, if otherwise eligible and as a result of the victimization of such child victims, and (iii) child victims, pursuant to subdivision 17 of section 631 of the Executive Law, if otherwise eligible and as a result of having witnessed a crime.

Subparagraph (i) of paragraph (4) of subdivision (h) of section 525.12 is amended to read as follows:

(i) To establish eligibility, a licensed provider shall submit a completed Claim Form as defined in section 525.12(h)(1)(iv) and attach an itemized bill indicating the relevant forensic examination related current procedural terminology (CPT) codes associated with each service provided to the office at the address below:

Office of Victim Services

[One Columbia Circle, Suite 200

Albany, NY 12203]

Alfred E. Smith State Office Building

80 South Swan Street, 2nd Floor

Albany, NY 12210-8002

Subparagraph (iv) of paragraph (5) of subdivision (h) of section 525.12 is amended to read as follows:

(iv) Pharmaceuticals directly related to the forensic examination including STD, pregnancy, initial HIV prophylaxis up to a [three] seven day supply and hepatitis prophylaxis.

Paragraph (1) of subdivision (i) of section 525.12 is amended to read as follows:

(1) The office may award loss of earnings or support in accordance with this Part, subdivision 3 of section 631 of the Executive Law and subject to any applicable maximum award limitations pursuant to Article 22 of the Executive Law, for such amounts that can be verified to the satisfaction of the office. (i) Any award for loss of earnings shall include time which an employee[: (i)] was absent from work and not paid for the date 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]. (ii) Except as provided in subparagraph (iii) of this paragraph, any award for loss of earnings or support shall be limited to the victim's income which has been reported to an appropriate taxing authority. (iii) If during an investigation of a claim the office determines that such income is not subject to taxation, the office shall request alternative information to verify such income.

Paragraph (1) of subdivision (b) of section 525.15 is amended to read as follows:

(1) If mailed, such notification shall be directed to:

Office of Victim Services

[One Columbia Circle, Suite 200

Albany, New York 12203]

Alfred E. Smith State Office Building

80 South Swan Street, 2nd Floor

Albany, NY 12210-8002

Subdivision (c) of section 525.15 is amended to read as follows:

(c) A claimant may request a copy of part or all of their record by letter, indicating the claim number and containing an original signature of the claimant. Such request shall be directed to:

Legal Unit

Office of Victim Services

[One Columbia Circle, Suite 200

Albany, New York 12203]

Alfred E. Smith State Office Building

80 South Swan Street, 2nd Floor

Albany, NY 12210-8002

Subdivision (a) of section 525.17 is amended to read as follows:

(a) A request for a further reduction of the amount of the State's lien pursuant to subdivision 2 of section 634 of the Executive Law, shall be submitted by the claimant or the claimant's attorney in writing to the office at the following address:

Legal Unit

Office of Victim Services

[One Columbia Circle, Suite 200

Albany, New York 12206]

Alfred E. Smith State Office Building

80 South Swan Street, 2nd Floor

Albany, NY 12210-8002

Subdivision (c) of section 525.23 is amended to read as follows:

(c) Location. Records shall be available for public inspection and copying at:

New York State Office of Victim Services

[One Columbia Circle, Suite 200

Albany, New York 12203]

Alfred E. Smith State Office Building

80 South Swan Street, 2nd Floor

Albany, NY 12210-8002

Paragraph (3) of subdivision (g) of section 525.23 is amended to read as follows:

(3) The Director or his or her designee shall determine appeals regarding denial of access to records under the Freedom of Information Law. Such appeal shall be directed to:

Director

New York State Office of Victim Services

[One Columbia Circle, Suite 200

Albany, New York 12203]

Alfred E. Smith State Office Building

80 South Swan Street, 2nd Floor

Albany, NY 12210-8002.

Text of proposed rule and any required statements and analyses may be obtained from:

John Watson, General Counsel, Office of Victim Services, AE Smith Office Bldg., 80 S. Swan Street, 2nd Floor, Albany, NY 12210, [phone], email: [e-mail]

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: New York State Executive Law, section 623 grants the Office of Victim Services (OVS or Office) 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. The recent relocation of the OVS’s Albany office necessitates several address changes in its regulations. Substantively, Chapter 233 of the Laws of 2012 amended New York State Executive Law, section 624(1)(b) adding guardian, brother, sister, stepbrother and stepsister to those family members of a homicide victim eligible for counseling reimbursement from the Office. Chapter 39 of the Laws of 2012 amended New York State Public Health Law, section 2805-i(1)(c) and Executive Law, section 631(13) relating to a seven-day starter pack of HIV post-exposure prophylaxis given to victims of sexual assaults. Chapter 119 of the Laws of 2013 amended New York State Executive Law, sections 624(a) and 631 adding a surviving spouse, child or stepchild of a victim of a crime who dies as a result of a crime as a person eligible for the reimbursement of crime scene clean-up. New York State Executive Law, section 631(3) provides that the Office may only make an award for loss of earnings in an amount equal to the actual loss sustained.

2. Legislative objectives: By enacting the New York State Executive Law, sections 624 and 631, the Legislature sought to ensure that the Office could reimburse claims for certain family members of homicide victims, certain costs related to sexual assault examinations and a victim’s loss of earnings.

3. Needs and benefits: The New York State Office of Victims Services’ Albany office was recently relocated, necessitating several address changes in its regulations. Substantively, Chapter 233 of the Laws of 2012 amended New York State Executive Law, section 624(1)(b) adding guardian, brother, sister, stepbrother and stepsister to those family members of a homicide victim eligible for counseling reimbursement from the Office. Chapter 39 of the Laws of 2012 amended New York State Public Health Law, section 2805-i(1)(c) and Executive Law, section 631(13) relating to a seven-day starter pack of HIV post-exposure prophylaxis given to victims of sexual assaults. Chapter 119 of the Laws of 2013 amended New York State Executive Law, sections 624(a) and 631 adding a surviving spouse, child or stepchild of a victim of a crime who dies as a result of a crime as a person eligible for the reimbursement of crime scene clean-up. New York State Executive Law, section 631(3) provides that the Office may only make an award for loss of earnings in an amount equal to the actual loss sustained. These proposed regulatory changes would update the Albany office’s address and make the changes necessary to conform the OVS’s regulations to its enacting statute. These will allow claimants or potential claimants to be aware of who is eligible and what expenses the Office may consider reimbursable under its statutory authority.

4. Costs: a. Costs to regulated parties. It is not expected that the proposed regulations would impose any additional costs to the agency or State than the recent, Chapter laws would otherwise impose. The interpretation of New York State Executive Law, section 631(3) and the conforming regulatory changes should prove to create operational efficiencies within the Office and save the State money.

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 more than is currently required of the Office’s claimants.

7. Duplication: These proposed regulations do not duplicate any other existing state or federal requirements.

8. Alternatives: The changes to the Albany office address and the conforming changes as a result of the 2012 and 2013 Chapter Laws are required and there are no alternatives. It was the past practice of the Crime Victims Board (OVS’ predecessor) to reimburse some claimants for loss of earnings notwithstanding the fact that they may have received salary for such lost time from their employer. It is the determination of the OVS that this was an overly-broad, incorrect interpretation of the statute which, in its application, would lead to the agency treating claimants with different employers unequally. This past practice, codified in the current regulations, includes in the calculation of one’s loss of earnings any time they were absent from work and utilized accumulated, paid leave. Accumulated leave was interpreted as something an employee “earned” from week to week. This resulted in these claimants receiving double-pay for the time lost. Additionally, not all employers offer such accumulated leave and their employees would be denied loss of earnings by the agency. Besides being required by statute, this regulatory change is necessary to treat employees, no matter how their employer provides them with paid leave, equally. Finally, it is current OVS practice, carried-over from the past practice of the Crime Victims Board (OVS’ predecessor) to reimburse claimants for loss of earnings or support notwithstanding the fact that they had not appropriately reported their income to an appropriate taxing authority. The OVS would like to limit such awards to the victim’s income which was properly and lawfully reported to their appropriate taxing authority. As a government entity with a close relationship to law enforcement, the OVS does not feel it is proper to make any compensation award to a person based upon illegal activity. In addition, the supporting documentation related to such a request is unreliable and ripe for fraudulent submissions. Limiting LOE/LOS awards to reported income is an important step to prevent such fraud.

9. Federal standards: The OVS is funded, in part by the federal Victims of Crime Act (VOCA). The statute which determines how state crime victim compensation programs may determine awards are enumerated in 42 USCS 10602. This rule change does not contradict any of the federal provisions of section 10602 and each change contained therein is permissible under such provisions.

10. Compliance schedule: The regulations will be effective on the date they are adopted.

Regulatory Flexibility Analysis

The Office of Victim Services 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 is simply designed to update the Office’s Albany address and conform its regulations to its enacting statute. 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 Office of Victim Services 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 is simply designed to update the Office’s Albany address and conform its regulations to its enacting statute. 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 Office of Victim Services 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 is simply designed to update the Office’s Albany address and conform its regulations to its enacting statute. 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.