SENATE BILL NO. 254
INTRODUCED BY M. HALLIGAN
AN ACT CREATING AN OFFICE OF VICTIMS SERVICES IN THE DEPARTMENT OF JUSTICE; TRANSFERRING THE DUTIES AND RESPONSIBILITIES FOR ADMINISTRATION OF THE CRIME VICTIMS COMPENSATION ACT OF MONTANA FROM THE DIVISION OF CRIME CONTROL OF THE DEPARTMENT OF JUSTICE TO THE OFFICE OF VICTIMS SERVICES; AMENDING SECTIONS 50-16-530, 53-9-103, 53-9-104, 53-9-105, 53-9-106, 53-9-107, 53-9-108, 53-9-109, 53-9-110, 53-9-121, 53-9-122, 53-9-123, 53-9-124, 53-9-125, 53-9-126, 53-9-127, 53-9-128, 53-9-130, 53-9-131, 53-9-132, AND 53-9-133, MCA; AND PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Office of victims services. There is an office of victims services in the department of justice. The office shall ensure that victims and witnesses of crime receive fair and proper treatment in the criminal justice system and that they are provided important services and assistance required by Title 46, chapter 24. The office is under the supervision and control of the attorney general.
Section 2. Section 50-16-530, MCA, is amended to read:
"50-16-530. Disclosure without patient's authorization -- other bases. A health care provider may disclose health care information about a patient without the patient's authorization if the disclosure is:
(1) directory information, unless the patient has instructed the health care provider not to make the disclosure;
(2) to federal, state, or local public health authorities, to the extent the health care provider is required by law to report health care information or when needed to protect the public health;
(3) to federal, state, or local law enforcement authorities to the extent required by law;
(4) to a law enforcement officer about the general physical condition of a patient being treated in a health care facility if the patient was injured on a public roadway or was injured by the possible criminal act of another;
(5) in response to a request of the division of crime control office of victims services for information under
53-9-104(2)(b);
(6) pursuant to compulsory process in accordance with 50-16-535 and 50-16-536; or
(7) pursuant to 50-16-712."
Section 3. Section 53-9-103, MCA, is amended to read:
"53-9-103. Definitions. As used in this part, the following definitions apply:
(1) "Claimant" means any of the following claiming compensation under this part:
(a) a victim;
(b) a dependent of a deceased victim; or
(c) an authorized person acting on behalf of any of them.
(2) "Collateral source" means a source of benefits, other than welfare benefits, or advantages for economic loss otherwise compensable under this part that the claimant has received or that is readily available to the claimant from:
(a) the offender;
(b) the government of the United States or any agency thereof, a state or any of its political subdivisions, or an instrumentality of two or more states, unless the law providing for the benefits or advantages makes them excess or secondary to benefits under this part;
(c) social security, medicare, and medicaid;
(d) workers' compensation;
(e) wage continuation programs of any employer;
(f) proceeds of a contract of insurance payable to the claimant for loss that was sustained because of the criminally injurious conduct;
(g) a contract, including an insurance contract, providing hospital and other health care services or benefits for disability. A contract in this state may not provide that benefits under this part are a substitute for benefits under the contract or that the contract is a secondary source of benefits and benefits under this part are a primary source.
(h) a crime victims compensation program operated by the state in which the victim was injured or killed that compensates residents of this state injured or killed in that state; or
(i) any other third party.
(3) "Criminally injurious conduct" means conduct that:
(a) occurs or is attempted in this state or an act of international terrorism, as defined in 18 U.S.C. 2331, committed outside of the United States against a resident of this state;
(b) results in bodily injury or death; and
(c) is punishable by fine, imprisonment, or death or would be so punishable except that the person engaging in the
conduct lacked capacity to commit the crime under the laws of this state; however, criminally injurious conduct does not
include conduct arising out of the ownership, maintenance, or use of a motor vehicle unless the bodily injury or death
occurred during the commission of an offense defined in Title 45 that requires the mental state of purposely as an element
of the offense or the injury or death was inflicted by the driver of a motor vehicle who is found by the division office, by a
preponderance of the evidence, to have been operating the motor vehicle while under the influence, as that term is defined
in 61-8-401; or
(d) is committed in a state without a crime victims compensation program that covers a resident of this state if the conduct meets the requirements in subsections (3)(b) and (3)(c).
(4) "Dependent" means a natural person who is recognized under the law of this state to be wholly or partially dependent upon the victim for care or support and includes a child of the victim conceived before the victim's death but born after the victim's death, including a child that is conceived as a result of the criminally injurious conduct.
(5) "Division" means the division of crime control of the department of justice.
(5) "Office" means the office of victims services established in [section 1].
(6) "Victim" means a person who suffers bodily injury or death as a result of:
(a) criminally injurious conduct;
(b) the person's good faith effort to prevent criminally injurious conduct; or
(c) the person's good faith effort to apprehend a person reasonably suspected of engaging in criminally injurious conduct."
Section 4. Section 53-9-104, MCA, is amended to read:
"53-9-104. Powers and duties of division office. (1) The division office shall:
(a) adopt rules to implement this part;
(b) prescribe forms for applications for compensation;
(c) determine all matters relating to claims for compensation; and
(d) require any person contracting directly or indirectly with an individual formally charged with or convicted of a
qualifying crime for any rendition, interview, statement, book, photograph, movie, television production, play, or article
relating to such the crime to deposit any proceeds paid or owed to the individual under the terms of the contract into an
escrow fund for the benefit of any victims of the qualifying crime and any dependents of a deceased victim, if the
individual is convicted of the crime, to be held for such a period of time as the division office may determine is reasonably
necessary to perfect the claims of the victims or dependents. Deposited proceeds may also be used to pay the costs and
attorney fees of court-appointed counsel for the charged person. Each victim and dependent of a deceased victim is entitled
to his actual and unreimbursed damages of all kinds or $5,000, whichever is greater. Proceeds remaining after payments to
victims, dependents of deceased victims, and the county as reimbursement for any public defender or any attorney
appointed for the charged person must be deposited in the account established in 53-9-109.
(2) The division office may:
(a) request and obtain from prosecuting attorneys and law enforcement officers investigations and data to enable the
division office to determine whether and the extent to which a claimant qualifies for compensation. A statute providing
confidentiality for a claimant's juvenile court records does not apply to proceedings under this part.
(b) request and obtain from a health care provider medical reports that are relevant to the physical condition of a
claimant or from an insurance carrier, agent, or claims adjuster insurance payment information that is relevant to expenses
claimed by a claimant, provided that the division office has made reasonable efforts to obtain from the claimant a release of
the records or information. No civil or criminal liability arises from the release of information requested under this
subsection (2)(b).
(c) subpoena witnesses and other prospective evidence, administer oaths or affirmations, conduct hearings, and receive relevant, nonprivileged evidence;
(d) take notice of judicially cognizable facts and general, technical, and scientific facts within its specialized knowledge;
(e) require that law enforcement agencies and officials take reasonable care that victims be informed about the existence of this part and the procedure for applying for compensation under this part; and
(f) establish a victims' assistance coordinating and planning program."
Section 5. Section 53-9-105, MCA, is amended to read:
"53-9-105. Rehabilitation of victims. The division office shall refer to the department of public health and human
services victims who have been permanently disabled through criminally injurious conduct, who are receiving benefits
under this part, and who in the opinion of the division office may be vocationally rehabilitated. The department of public
health and human services shall provide for the vocational rehabilitation of the victims under its rehabilitation programs to
the extent funds are available under the programs."
Section 6. Section 53-9-106, MCA, is amended to read:
"53-9-106. Attorneys' Attorney fees. (1) The division office may grant attorneys' attorney fees to attorneys for
representing claimants before the division office. Any attorney's attorney fee granted by the division office shall be is in
addition to compensation awarded the claimant under this part.
(2) The division office may regulate the amount of the attorney's attorney fee in any claim under this part when an
attorney is representing a claimant.
(3) In cases under this part that go before a district court, the judge may grant, in addition to compensation benefits
granted, attorneys' attorney fees to attorneys for representing claimants before the court.
(4) In no claim or case may attorney Attorney fees in excess of 5% of the amount paid to a claimant or on his a
claimant's behalf may not be paid directly or indirectly to a claimant's attorney."
Section 7. Section 53-9-107, MCA, is amended to read:
"53-9-107. Public inspection and disclosure of division's office's records. (1) Except as provided in subsections (2)
and (3), the records the division office maintains in its possession in the administration of this part are open to public
inspection and disclosure.
(2) Confidential criminal justice information obtained by the division office is subject to the confidentiality provisions
of the Montana Criminal Justice Information Act of 1979, Title 44, chapter 5.
(3) In assuring that the right of individual privacy so essential to the well-being of a free society may not be infringed
without the showing of a compelling state interest, the following public records of the division office are exempt from
disclosure:
(a) information of a personal nature, such as personal, medical, or similar information, if the public disclosure thereof
of the information would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance. The party seeking disclosure has the burden of showing that public
disclosure would not constitute an unreasonable invasion of privacy.
(b) any public records or information, the disclosure of which is prohibited by federal law or regulations.
(4) If any public record of the division office contains material that is not exempt under subsection (3), as well as
material that is exempt from disclosure, the division office shall separate the exempt and nonexempt and make the
nonexempt material available for examination."
Section 8. Section 53-9-108, MCA, is amended to read:
"53-9-108. Limitation of benefit entitlements to proportionate share of available funds. Claimants receiving
benefits under this part are not granted an absolute entitlement to benefits. Benefits must be paid in accordance with the
amount of the legislative appropriation. If the division office determines at any time that the appropriated funds for a fiscal
year will not be an amount that will fully pay all claims, the division office may make appropriate proportionate reductions
in benefits to all claimants. Such The reductions do not entitle claimants to future retroactive reimbursements in future
fiscal years unless the legislature makes appropriations for such retroactive benefits."
Section 9. Section 53-9-109, MCA, is amended to read:
"53-9-109. Crime victims compensation and assistance account. (1) There is a crime victims compensation and
assistance account in the state special revenue fund. There must be paid into this account 18% of the fines assessed and
bails forfeited, except those paid to a justice's court, on all offenses involving a violation of chapter 3, part 1 of chapter 4, or
chapters 5 through 10 of Title 61 that are a result of citations or tickets issued by the highway patrol. Except as provided in
subsection (2), the money in the account must be used solely for the purposes of this part and for victims' assistance
program coordination and planning provided by the division office.
(2) The fund balance in the account as of March 31 of each year is limited to $500,000. Whenever the fund balance on March 31 exceeds $500,000, the amount of the fund balance in excess of $500,000 must be deposited in the general fund. (See compiler's comments for contingent termination of certain text.)"
Section 10. Section 53-9-110, MCA, is amended to read:
"53-9-110. Receipt of federal funds. The division office may adopt appropriate rules in order to receive federal funds
under federal criminal reparation and compensation acts."
Section 11. Section 53-9-121, MCA, is amended to read:
"53-9-121. Application for compensation. An applicant for an award of compensation may apply in writing in a form
that conforms substantially to that prescribed by the division office."
Section 12. Section 53-9-122, MCA, is amended to read:
"53-9-122. Informal hearings. The division office may hold informal hearings in order to make determinations
regarding the compensability of a claim. At such the hearings, the division office may subpoena witnesses and documents
as set forth in 2-4-104. Hearings held under this section are not considered contested case hearings under the Montana
Administrative Procedure Act. However, the division office shall adopt rules regarding its informal hearing procedures."
Section 13. Section 53-9-123, MCA, is amended to read:
"53-9-123. Evidence of condition. (1) The division office may require the claimant to supplement the application with
any reasonably available medical reports relating to the injury for which compensation is claimed.
(2) If the physical condition of a victim or claimant is material to a claim, the division office may order the victim or
claimant to submit from time to time to a physical examination by a physician or may order an autopsy of a deceased
victim. The division office shall pay for such the examination or autopsy. The order shall must specify the time, place,
manner, conditions, and scope of the examination or autopsy and the person by whom it is to be made and shall must
require the person to file with the division office a detailed written report of the examination or autopsy. The report shall
must set out his physician's findings, including results of all tests made, diagnoses, prognoses, and other conclusions and
reports of earlier examinations of the same conditions. On request of the person examined, the division office shall furnish
him the person a copy of the report. If the victim is deceased, the division office, on request, shall furnish the claimant a
copy of the report.
(3) There is no privilege, except privileges arising from the attorney-client relationship, as to communications or records relevant to an issue of the physical condition of the claimant or victim in a proceeding under this part in which that condition is an element."
Section 14. Section 53-9-124, MCA, is amended to read:
"53-9-124. Enforcement of division's office's orders -- improper assertion of privilege. If a person refuses to
comply with an order of the division office or asserts a privilege to withhold or suppress evidence relevant to a claim,
except privileges arising from the attorney-client relationship, the division office may make any just order, including denial
of the claim."
Section 15. Section 53-9-125, MCA, is amended to read:
"53-9-125. Limitations on awards. (1) Except as otherwise provided in this section, compensation may not be
awarded unless the claim is filed with the division office within 1 year after the day the criminally injurious conduct
occurred causing the injury or death upon which the claim is based. Compensation in cases involving sexual offenses
against minors may not be awarded unless the claim is filed with the division office within 1 year after the day the
criminally injurious conduct was reported to a law enforcement agency or an agency of the state responsible for provision
of child welfare services, or within 1 year after the day the victim reaches 18 years of age, whichever occurs last. The time
for filing a claim may be extended by the division office for good cause shown.
(2) Compensation may not be awarded to a claimant who is the offender or an accomplice of the offender or to any claimant if the award would unjustly benefit the offender or accomplice.
(3) Compensation may not be awarded unless the criminally injurious conduct resulting in injury or death was reported
to a law enforcement officer. The report must be made within 72 hours after its occurrence, except in a case involving a
sexual offense against a minor or when the division office finds there was good cause for the failure to report within that
time.
(4) In order to be entitled to benefits under this part, a claimant must shall fully cooperate with all law enforcement
agencies and prosecuting attorneys in the apprehension and prosecution of the offender causing the criminally injurious
conduct. The division office, upon finding that the claimant or victim has not fully cooperated with appropriate law
enforcement agencies or prosecuting attorneys, may deny or reconsider and reduce an award of compensation.
(5) Compensation otherwise payable to a claimant shall must be reduced or denied to the extent the compensation
benefits payable are or can be recouped from collateral sources.
(6) Persons serving a sentence of imprisonment or residing in any other public institution which provides for the
maintenance of such the person are not entitled to the benefits of this part.
(7) Compensation may be denied or reduced if the victim contributed to the infliction of death or injury with respect to
which the claim is made. Any reduction in benefits under this subsection shall must be in proportion to what the division
office finds to be the victim's contribution to the infliction of death or injury."
Section 16. Section 53-9-126, MCA, is amended to read:
"53-9-126. Tentative award of compensation. If the division office determines that the claimant will suffer financial
hardship unless a tentative award is made and it appears likely that a final award will be made, an amount may be paid to
the claimant, to be deducted from the final award or repaid by and recoverable from the claimant to the extent that it
exceeds the final award."
Section 17. Section 53-9-127, MCA, is amended to read:
"53-9-127. Award of compensation. (1) The division office shall award compensation benefits under this part if
satisfied by a preponderance of the evidence that the requirements for compensation have been met.
(2) An award may be made whether or not any person is prosecuted or convicted. Proof of conviction of a person whose acts give rise to a claim is conclusive evidence that the crime was committed unless an application for rehearing, an appeal of the conviction, or certiorari is pending or a rehearing or new trial has been ordered.
(3) The division office may suspend the proceedings pending disposition of a criminal prosecution that has been
commenced or is imminent and may make a tentative award under 53-9-126."
Section 18. Section 53-9-128, MCA, is amended to read:
"53-9-128. Compensation benefits. (1) A claimant is entitled to weekly compensation benefits when the claimant has a total actual loss of wages due to injury as a result of criminally injurious conduct. During the time the claimant seeks weekly benefits, the claimant, as a result of the injury, must have no reasonable prospect of being regularly employed in the normal labor market. The weekly benefit amount is 66 2/3% of the wages received at the time of the criminally injurious conduct, subject to a maximum of one-half the state's average weekly wage as determined in 39-51-2201. Weekly compensation payments must be made at the end of each 2-week period. Weekly compensation payments may not be paid for the first week after the criminally injurious conduct occurred, but if total actual loss of wages continues for 1 week, weekly compensation payments must be paid from the date the wage loss began. Weekly compensation payments must continue until the claimant has a reasonable prospect of being regularly employed in the normal labor market.
(2) The claimant is entitled to be reimbursed for reasonable services by a physician or surgeon, reasonable hospital
services and medicines, and other treatment approved by the division office for the injuries suffered due to criminally
injurious conduct. Unless expressly requested by the claimant, benefits may not be paid under this subsection until the
claimant has been fully compensated for total wage loss benefits as provided in subsection (1) or (7).
(3) (a) The dependents of a victim who is killed as a result of criminally injurious conduct are entitled to receive, in a gross single amount payable to all dependents, weekly benefits amounting to 66 2/3% of the wages received at the time of the criminally injurious conduct causing the death, subject to a maximum of one-half the state's average weekly wage as determined in 39-51-2201. Weekly compensation payments must be made at the end of each 2-week period.
(b) Benefits under subsection (3)(a) must be paid to the spouse for the benefit of the spouse and other dependents unless
the division office determines that other payment arrangements should be made. If a spouse dies or remarries, benefits
under subsection (3)(a) must cease to be paid to the spouse but must continue to be paid to the other dependents as long as
their dependent status continues.
(4) Reasonable funeral and burial expenses of the victim, not exceeding $3,500, must be paid if all other collateral sources have properly paid expenses but have not covered all expenses.
(5) Compensation payable to a victim and all of the victim's dependents in cases of the victim's death because of injuries suffered due to an act of criminally injurious conduct may not exceed $25,000 in the aggregate.
(6) Compensation benefits are not payable for pain and suffering, inconvenience, physical impairment, or nonbodily damage.
(7) (a) A person who has suffered injury as a result of criminally injurious conduct and as a result of the injury has no
reasonable prospect of being regularly employed in the normal labor market and who was employable but was not
employed at the time of the injury may in the discretion of the division office be awarded weekly compensation benefits in
an amount determined by the division office not to exceed $100 per week. Weekly compensation payments must continue
until the claimant has a reasonable prospect of being regularly employed in the normal labor market. The claimant must be
awarded benefits as provided in subsection (2).
(b) The dependents of a victim who is killed as a result of criminally injurious conduct and who was employable but not
employed at the time of death may in the discretion of the division office be awarded, in a gross single amount payable to
all dependents, a sum not to exceed $100 per week, which is payable in the manner and for the period provided by
subsection (3)(b) or for a shorter period as determined by the division office. The claimant must be awarded benefits as
provided in subsection (4).
(8) Except for benefits paid under subsections (3), (5), and (7)(b) or other benefits paid when the victim is killed as a result of criminally injurious conduct, amounts payable as weekly compensation may not be commuted to a lump sum and may not be paid less frequently than every 2 weeks.
(9) (a) Subject to the limitations in subsection (9)(c), the spouse, parent, child, brother, or sister of a victim who is killed as a result of criminally injurious conduct is entitled to reimbursement for mental health treatment received as a result of the victim's death.
(b) Subject to the limitations in subsection (9)(c), the parent, brother, or sister of a minor who is a victim of criminally injurious conduct involving a sexual offense and who is not entitled to receive services under Title 41, chapter 3, is entitled to reimbursement for mental health treatment received as a result of that criminally injurious conduct.
(c) Total payments made under subsections (9)(a) and (9)(b) may not exceed $2,000 or 12 consecutive months of treatment for each person, whichever occurs first."
Section 19. Section 53-9-130, MCA, is amended to read:
"53-9-130. Reconsideration and review of division's office's decisions. (1) The division office on its own motion or
on request of the claimant may reconsider a decision making or denying an award or determining its amount. The division
office shall reconsider at least annually every award being paid in installments. An order on reconsideration of an award
may not require refund of amounts previously paid unless the award was obtained by fraud.
(2) The right of reconsideration does not affect the finality of a division an office decision for the purpose of appeal."
Section 20. Section 53-9-131, MCA, is amended to read:
"53-9-131. Appeals. After the division office has made final determination concerning any matter relating to a claim, if
the claimant disputes the division's office's determination, he the claimant may appeal to the district court for the county in
which he the claimant resides or Lewis and Clark County for review. Review on appeal must be in conformity with 2-4-701
through 2-4-704 of the Montana Administrative Procedure Act. The judge, after a hearing, shall make a final determination
concerning the dispute and issue an appropriate order affirming, reversing, or modifying the division's office's
determination."
Section 21. Section 53-9-132, MCA, is amended to read:
"53-9-132. Subrogation. (1) If a claimant seeks compensation under this part and compensation is awarded, the
division office is entitled to full subrogation against a judgment or recovery received by the claimant against the offender or
a collateral source arising from the criminally injurious conduct committed by the offender for all compensation paid under
this part. The division's office's right of subrogation shall be is a first lien on the judgment or recovery. If the claimant does
not institute the action against the offender or collateral source within 1 year from the date the criminally injurious conduct
occurred, the division office may institute the action in the name of the claimant or the claimant's personal representative.
(2) If the claimant institutes the action, the division office shall pay a proportional share of costs and attorneys' attorney
fees if it recovers under its subrogation interest.
(3) If the division office institutes the action in the name of the claimant or the claimant's personal representative and
the recovery is in excess of the amount of compensation paid to the claimant and costs incurred by the division office in
pursuit of the action, the excess shall must be paid to the claimant.
(4) If a judgment or recovery includes both damages for bodily injury or death for which the division office has paid
compensation under this part and damages for which the division office has not paid compensation, then the division's
office's subrogation interest shall apply applies only to that proportion of the judgment or recovery for which it has paid
compensation. In a civil action in a court of this state arising out of criminally injurious conduct, the judge, on timely
motion, shall direct the jury to return a special verdict indicating separately the amounts of the various items of damages
awarded. A claimant may not make recoveries against the offender or collateral source in such a way as to avoid and
preclude the division office from receiving its proper subrogation share as provided in this section. The division office shall
release its lien provided for in subsection (1) above upon receipt of its subrogation share."
Section 22. Section 53-9-133, MCA, is amended to read:
"53-9-133. Effect of award on probation and parole of offender. (1) When placing any convicted person on
probation, the court may set as a condition of probation the payment to the state of an amount equal to any benefits paid by
the division office to a victim or a victim's dependents. The court may set a repayment schedule and modify it as
circumstances change.
(2) Payment of the debt may be made a condition of parole subject to modification based on a change in circumstances."
Section 23. Codification instruction. [Section 1] is intended to be codified as an integral part of Title 2, chapter 15, part 20, and the provisions of Title 2, chapter 15, part 20, apply to [section 1].
Section 24. Effective date. [This act] is effective July 1, 2001.
- END -
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