BILL ANALYSIS Ó
AB 1140
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
1140 (Bonta)
As Amended September 4, 2015
2/3 vote
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|ASSEMBLY: | 79-0 |(June 3, 2015) |SENATE: | | (September 10, |
| | | | |26-13 |2015) |
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Original Committee Reference: PUB. S.
SUMMARY: Revises various rules governing the California Victim
Compensation Program (CalVCP).
The Senate amendments:
1)Prohibit the Victim Compensation and Government Claims Board
from requiring an applicant to submit documentation from the
Internal Revenue Service, the Franchise Tax Board, the State
Board of Equalization, the Social Security Administration, or
the Employment Development Department in order to determine
eligibility for compensation.
2)Require the initial application sent by the board to an
applicant to be written in specified languages. If the
applicant selects one of the specified languages, then all
subsequent communication shall be in that language.
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3)Prohibit the board from establishing policy or regulations
limiting the amount recoverable for funeral expenses to less
than $7500.
4)Allow an applicant to be accompanied by a service animal at a
hearing to contest the denial of a claim.
5)Permit a crime victim to testify at a restitution hearing or a
modification hearing by live, two-way audio and video
transmission, if it is available at the court.
6)Redefine various terms with regard to providing compensation
for peer counseling services.
7)Require that any peer counseling services that fall under the
scope of practice of certain acts, including the Clinical
Social Worker Practice Act, be performed by a licensee or a
registrant of the Board of Behavioral Sciences or other
appropriately licensed professional unless in an exempt
setting.
EXISTING LAW:
1)Establishes the Victim Compensation and Government Claims
Board (VCGCB) to operate the CalVCP.
2)Provides than an application for compensation shall be filed
with the board in the manner determined by the board.
3)States that, except as provided by specified sections of the
Government Code, a person shall be eligible for compensation
when all of the following requirements are met:
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a) The person form whom compensation is being sought any of
the following:
i) A victim.
ii) A derivative victim.
iii) A person who is entitled to reimbursement for
funeral, burial or crime scene clean-up expenses pursuant
to specified sections of the Government Code.
b) Either of the following conditions is met:
i) The crime occurred within California, whether or not
the victim is a resident of California. This only
applies when the VCGCB determines that there are federal
funds available to the state for the compensation of
crime victims.
ii) Whether or not the crime occurred within the State
of California, the victim was any of the following:
(1) A California resident.
(2) A member of the military stationed in
California.
(3) A family member living with a member of the
military stationed in California.
c) If compensation is being sought for derivative victim,
the derivative victim is a resident of California, or the
resident of another state who is any of the following:
i) At the time of the crimes was the parent,
grandparent, sibling, spouse, child or grandchild of the
victim.
ii) At the time of the crime was living in the household
of the victim.
iii) At the time of the crime was a person who had
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previously lived in the house of the victim for a person
of not less than two years in a relationship
substantially similar to a previously listed
relationship.
iv) Another family member of the victim including, but
not limited to, the victim's fiancé or fiancée, and who
witnessed the crime.
v) Is the primary caretaker of a minor victim, but was
not the primary caretaker at the time of the crime.
d) And other specified requirements.
4)States that an application shall be denied if the board finds
that the victim failed to reasonably cooperate with law
enforcement in prosecution of the crime.
5)Disqualifies certain individuals from eligibility, including a
participant in the crime for which compensation is being
sought, and persons convicted of a felony who are currently on
probation or parole.
6)Authorizes the board to reimburse for pecuniary loss for the
following types of losses:
a) The amount of medical or medical-related expenses
incurred by the victim, subject to specified limitations.
b) The amount of out-patient psychiatric, psychological or
other mental health counseling-related expenses incurred by
the victim, as specified, including peer counseling
services provided by a rape crisis center.
c) The expenses of non-medical remedial care and treatment
rendered in accordance with a religious method of healing
recognized by state law.
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d) Compensation equal to the loss of income or loss of
support, or both, that a victim or derivative victim incurs
as a direct result of the victim's injury or the victim's
death, subject to specified limitations.
e) Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services.
f) The expense of installing or increasing residential
security, not to exceed $1,000, with respect to a crime
that occurred in the victim's residence, upon verification
by law enforcement to be necessary for the personal safety
of the victim or by a mental health treatment provider to
be necessary for the emotional well-being of the victim.
g) The expense of renovating or retrofitting a victim's
residence or a vehicle to make them accessible or
operational, if it is medically necessary.
h) Expenses incurred in relocating, as specified, if the
expenses are determined by law enforcement to be necessary
for the personal safety or by a mental health treatment
provider to be necessary for the emotional well-being of
the victim.
7)Limits the total award to or on behalf of each victim to
$35,000, except that this amount may be increased to $70,000
if federal funds for that increase are available.
AS PASSED BY THE ASSEMBLY, this bill:
1)Expanded the definition of a victim's "authorized
representative" to include any person having written
authorization by the victim or derivative victim, or any
person designated by law such as a legal guardian,
conservator, or social worker; but excluding any medical or
mental health provider, or its agent, who has provided
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services to the victim or derivative victim.
2)Provided that an applicant may be found to have been
"uncooperative" for purposes of verifying information
necessary to process a claim under the following
circumstances:
a) He or she has information, or reasonably-obtainable
information, that is needed to process the claim but fails
to do so after the board requests it. However, the board
must take the applicant's economic, psycho-social, and
post-crime traumatic circumstances under consideration, and
cannot unreasonably reject an application solely for
failure to provide information;
b) He or she provides false information regarding the
claim, or causes another person to do so;
c) He or she refuses to apply for benefits from other
sources to which he or she may be entitled, such as
worker's compensation, Social Security, state disability
insurance or unemployment insurance; or,
d) He or she threatens a board member or staff with
violence or bodily harm.
3)Authorized compensation for a victim's emotional injury
incurred as a direct result of the nonconsensual distribution
of pictures or video of sexual conduct in which the victim
appeared, if the victim is a minor. But disallows
compensation for derivative victims.
4)Revised provisions allowing compensation for emotional injury
suffered in child abduction cases to delete the requirement
that the deprivation of custody lasted for 30 calendar days,
and instead requires only that criminal charges be filed in
the case.
5)Authorized denial of a claim, in whole or in part, if the
board finds that denial is appropriate because of the nature
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of the applicant's involvement in the events leading to the
crime, or the involvement of the person whose injury or death
gave rise to the claim. This limitation does not apply if the
victim's injury or death occurred as a direct result of the
crimes of rape, spousal rape, domestic violence, or unlawful
sexual intercourse with a minor.
6)Stated that factors to be considered for determining
involvement in the crime include, but are not limited to:
a) The victim or derivative victim initiated the qualifying
crime, or provoked or aggravated the suspect into
initiating the qualifying crime;
b) The qualifying crime was a reasonably foreseeable
consequence of the conduct of the victim or derivative
victim; and,
c) The victim or derivative victim was committing a crime
that could be charged as a felony and that reasonably lead
to him or her being victimized.
7)Stated that if the board finds that the victim or derivative
victim was involved in events leading to the crime, factors
that may be used to mitigate or overcome involvement, include,
but are not limited to:
a) The victim's injuries were significantly more serious
than reasonably could have been expected based on the
victim's level of involvement;
b) A third party interfered in a manner not reasonably
foreseeable by the victim or derivative victim; and,
c) The victim's age, physical condition, and psychological
state, as well as any compelling health and safety
concerns.
8)Prohibited a domestic violence victim from being found to be
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uncooperative based on his or her conduct with law enforcement
at the scene of a crime.
9)Prohibited a victim of domestic violence, sexual assault, or
human trafficking from being found to be uncooperative because
of a delay in reporting the crime.
10)Prohibited the denial of an application for a claim arising
from a sexual assault based solely on the failure to file a
police report.
11)Required the board to adopt guidelines allowing it to
consider and approve applications for assistance in sexual
assault cases by relying upon evidence other than a police
report. Factors evidencing a sexual assault has occurred, may
include medical records, mental health records, and a sexual
assault examination.
12)Denied compensation to any person convicted of a violent
felony, as specified, until that person is no longer
incarcerated and discharged from parole, probation,
post-release community supervision, or mandatory supervision.
13)Denied compensation to any person who is required to register
as a sex offender.
14)Removed current provisions which prioritize the applications
of victims who are not felons.
15)Removed limits for statutory rape counseling.
16)Expanded eligibility to recoup the costs of mental health
counseling to grandparents and grandchildren.
17)Limited reimbursement for medically-related expenses to those
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that were provided by a licensed medical provider.
18)Eliminated the board's authority to reimburse for expenses of
nonmedical remedial care and treatment given in accordance
with a religious method of healing recognized under state law.
19)Eliminated verification requirements for reimbursement of
increased residential-security measures.
20)Allowed reimbursement for the purchase of a vehicle for a
victim who becomes permanently disabled.
21)Specified that, as to reimbursement of costs for a victim's
relocation, the victim may be required to repay the
reimbursement if the victim notifies the perpetrator of his or
her new address or allows the offender on the premises.
Additionally, if a security deposit is required for relocation
services, the board shall be named as the recipient of the
security deposit.
22)Expanded reimbursement to cover clean up expenses when the
crime scene is a vehicle.
23)Allowed the board to request verification before it
reimburses for attorney's fees.
24)Permitted an applicant who seeks a hearing on the denial of
compensation to request a telephonic hearing.
25)Provided that evidence submitted after the board has denied a
request for reconsideration shall not be considered unless the
board chooses to reconsider the decision on its own motion.
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26)Required any board actions to collect overpayments be
commenced within seven years of the date of the overpayment,
except there is no statute of limitation for the action if
overpayment was a result of fraud, misrepresentation or
willful non-disclosure of the applicant.
27)Authorized the recipient of an alleged overpayment to contest
that finding.
28)Provided that the board need only forward restitution
proceeds collected from a prisoner or parolee to a victim when
the payment is $25 or more, unless the victim requests
payments of a lesser amount.
29)Increased the rate of compensation for a wrongfully convicted
person from $100 per day to $130 per day.
30)Made technical, non-substantive changes.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)CalVCP benefits: Significant increase in CalVCP payments
potentially in excess of $800,000 (Special Fund*) annually due
to expanded and revised eligibility criteria, most
significantly due to the changes in eligibility criteria
related to lack of cooperation with law enforcement.
2)CalVCP administration: One-time costs to the Board for
resource needs potentially in excess of $150,000 (Special
Fund) for programming changes necessary to the automated
claims processing system. Ongoing increased administrative
workload for claims processing of increased applications.
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3)Federal fund impact: Potential future increases in annual
federal Victims of Crime Act (VOCA) grant funds of 60%
reimbursement for state funds used to compensate victims to
the extent the annual cap on VOCA fund obligations is
adequately raised or removed. Additionally, VOCA grant awards
are based on state expenditures from prior years, so any
potential increases to the VOCA grant award would not be
received until 2018-19 at the earliest.
COMMENTS: According to the author, "The California Victim
Compensation and Government Claims Board administers the CalVCP
and is authorized to compensate victims and derivative victims
of specified types of crimes through a continuously appropriated
fund, the Restitution Fund. Existing law sets forth the
eligibility requirements and limits on the amount of
compensation the CalVCP may award. The CalVCP framework was
developed several decades ago and has not been thoroughly
revised since that time.
"To address ongoing issues with outdated restrictions and the
need to modernize the program to reflect changing technologies
and crimes, the CalVCP conducted a Statute Modernization
Project, bringing various stakeholder groups together to make
recommendations on revising and updating the state compensation
program to better serve victims.
"AB 1140 would implement many of the recommendations made by the
CalVCP Statute Modernization Project to modernize the existing
statutes. For example, current law restricts compensation of
victims of domestic violence if the victim fails to cooperate
with law enforcement or report the assault in a timely fashion.
AB 1140 would update that law to comport with current
understandings of domestic violence and the many reasons a
victim may fail to immediately report or cooperate. Current law
also restricts compensation to persons on probation or parole
and those who have participated in a crime that resulted in
their injuries. AB 1140 would delete those restrictions and
allow compensation unless the person is on probation or parole
for a violent crime or is a sex offender and allow compensation
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to those who participated in a crime unless the crime was a
felony.
"The bill would also make a number of other improvements to
address emerging issues in law. For example, the bill would
include online harassment as a compensable crime and also allow
compensation to a minor who sustains emotional injury as a
direct result of the distribution of pictures or video of sexual
conduct."
Analysis Prepared by:
Sandy Uribe / PUB. S. / (916) 319-3744 FN:
0002253