BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 519| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 519 Author: Hancock (D), et al. Amended: 6/2/15 Vote: 27 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/28/15 AYES: Hancock, Anderson, Leno, Liu, McGuire, Monning, Stone SENATE APPROPRIATIONS COMMITTEE: 6-1, 5/28/15 AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza NOES: Nielsen SUBJECT: Victims of crime SOURCE: San Francisco District Attorney DIGEST: This bill 1) prohibits the Victims Compensation and Government Claims Board (VCGCB) from requiring a claimant to submit documentation from the IRS, the Franchise Tax Board, or the State Board of Equalization; 2) requires that all correspondence from VCGCB to an applicant be in English, Spanish, Mandarin and Cantonese Chinese, Vietnamese, Tagalog, Korean, East Armenian, Russian, Arabic, Farsi, Mong, and Khmer; 3) prohibits denial of a minor's claim because the minor did not cooperate with law enforcement; 4) provides that a crime victim who has been convicted of a felony is entitled to compensation for mental health counseling, regardless of whether he or she has been released from probation or parole; 5) prohibits VCGCB from adopting regulations setting a maximum payment for funeral and burial expenses less than $7,500; 6) requires VCGCB to approve or deny an application within 90 days, not within an SB 519 Page 2 average of 90 days; 7) requires VCGCB to allow a claimant to be accompanied by a support animal at a hearing to contest denial of a claim; 8) provides that in a hearing to determine or modify restitution in a criminal case, the victim may testify by available two-way live audio and video transmission; and 9) provides that if a person has been granted dismissal of a conviction, or has been allowed to withdraw a guilty plea, the person still must pay a direct restitution order or a restitution fine. ANALYSIS: Existing law: 1) Provides that all crime victims have the right to seek and secure restitution from the perpetrators of these crimes. Restitution must be ordered in every case without exception. Where a defendant has been ordered to pay restitution, all money, or property collected from the defendant must be first applied to satisfy restitution orders. (California Constitution Article 1 § 28(b)(13)(A)-(C).) 2) Requires the court to order a defendant to make restitution to the victim or victims of the defendant's crime, based on the amount of loss claimed by the victim or victims or any other showing to the court. The court shall order full restitution for the losses caused by the defendant's crime unless the court finds and states compelling and extraordinary reasons for not doing so. (Penal Code § 1202.4(f).) 3) Establishes VCGCB to operate the California Victim Compensation Program (CalVCP). (Gov. Code §§ 13950 et. seq.) 4) Provides than an application for compensation shall be filed with VCGCB in the manner determined by VCGCB. (Gov. Code § 13952, subd.(a).) 5) States that except as provided by specified sections of the Government Code, a person shall be eligible for compensation SB 519 Page 3 when all of the following requirements are met (Gov. Code § 13955): a) The person from whom compensation is being sought who is any of the following; a victim; a derivative victim; or, 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: The crime occurred within California, whether or not the victim is a resident of California. This only applies when VCGCB determines that there are federal funds available to the state for the compensation of crime victims. c) Whether or not the crime occurred within the State of California, the victim was any of the following: A California resident; a member of the military stationed in California; or, a family member living with a member of the military stationed in California. d) If compensation is being sought for a derivative victim, the derivative victim is a resident of California, or the resident of another state who is any of the following: At the time of the crimes was the parent, grandparent, sibling, spouse, child or grandchild of the victim; at the time of the crime was living in the household of the victim; and at the time of the crime was a person who had 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. e) Another family member of the victim including, but not limited to, the victim's fiancé or fiancée, and who witnessed the crime; or, is the primary caretaker of a minor victim, but was not the primary caretaker at the time of the crime. 6) Authorizes VCGCB to reimburse for pecuniary loss for the SB 519 Page 4 following types of losses (Gov. Code § 13957, subd. (a)): 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; 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; and, 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 SB 519 Page 5 the victim. 1) 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. (Gov. Code § 13957, subd. (b).) 2) States that an application shall be denied if VCGCB finds that the victim or derivative victim failed to cooperate reasonably with law enforcement. However, in determining whether cooperation was reasonable, VCGCB shall consider the victim's or derivative victim's age, physical condition, and psychological state, cultural or linguistic barriers and compelling health and safety concerns. These concerns include, but are not limited to, reasonable fear of retaliation or harm jeopardizing the well-being of the victim, victim's family, derivative victim or derivative victim's family. (Gov. Code § 13956, subd. (b)(1).) 3) Provides that a domestic violence claim may not be denied solely because the victim did not make a police report. VCGCB shall adopt guidelines to consider and approve domestic violence claims based on evidence other than a police report. The evidence may include, but is not limited to, relevant medical or mental health records, or the fact that the victim has obtained a temporary or permanent restraining order. (Gov. Code § 13956, subd. (b)(2).) 4) States that an application for a claim based on human trafficking, as defined, of the Penal Code may not be denied solely because no police report was made by the victim. VCGCB shall adopt guidelines that allow VCGCB to consider and approve applications for assistance based on human trafficking relying upon evidence other than a police report to establish that a human trafficking crime, as defined, has occurred. That evidence may include any reliable corroborating information approved by VCGCB, including, but not limited to, the following: a) A Law Enforcement Agency Endorsement was issued, as specified; b) A human trafficking caseworker has attested by SB 519 Page 6 affidavit that the individual was a victim of human trafficking. (Gov. Code § 13956, subd. (b)(3)): 5) Provides that a victim of violent crime who has been convicted of a felony may not receive compensation until released from parole or probation. Victims who are not felons have priority for compensation ahead of felons. (Gov. Code § 13956, subd. (d).) 6) Provides that VCGCB may deny a claim in whole or part if the claimant, or the victim of the crime for which a derivative victims seeks compensation, was involved in the events leading to the crime for which compensation is sought. (Gov. Code § 13956, subd. (c).) 7) Provides that VCGCB shall approve or deny applications within an average of 90 calendar days and no later than 180 from "of acceptance" of the application by VCGCB or victim center. a) VCGCB shall report quarterly to the Legislature until it has met the time requirements for two consecutive quarters. b) If VCGCB does not approve or deny a claim within "180 days of the date it is accepted," VCGCB is advised the applicant in writing of the reasons for the failure to rule on the application. (Gov. Code § 13958.) 8) Includes standards and consideration by the court in granting a motion for continuance of a criminal trial, including direction and guidance as to what constitutes good cause for a continuance. (Pen. Code § 1050.) This bill: 1) Provides that VCGCB shall not require a claimant to submit documentation from the IRS, the Franchise Tax Board, or the State Board of Equalization. 2) Requires that all correspondence from VCGCB to an applicant must be in English, Spanish, Mandarin and Cantonese Chinese, Vietnamese, Tagalog, Korean, East Armenian, Russian, Arabic, SB 519 Page 7 Farsi, Mong, and Khmer. 3) Provides that if the victim is a minor, VCGCB shall not deny a claim because the minor did not cooperate with law enforcement. 4) Provides that a crime victim who has been convicted of a felony is entitled to compensation for mental health counseling, regardless of whether he or she has been released from probation or parole. 5) Provides that a victim of financial exploitation by a caretaker or relative of a person 65 years of age or older, where there is a reasonable fear of continued exploitation is eligible for counseling. 6) Prohibits VCGCB from adopting regulations setting maximum reimbursement for funeral and burial expenses in an amount less than $7,500. 7) Requires VCGCB to approve or deny an application within 90 days, not within an average of 90 days, but no later than 180 days. 8) Requires VCGCB to allow a claimant to be accompanied and supported by an animal in a hearing to contest a staff recommendation that a claim be denied. 9) Provides that good cause for continuance of a criminal trial where a witness was previously a victim of elder abuse. 10) Provides that a witness in a hearing to determine restitution after conviction in a criminal case, including modification of an existing order, may testify by live audio and video transmission. SB 519 Page 8 11)Provides that if a person, pursuant to Penal Code Section 1203.4, has been granted dismissal of a conviction, or has been allowed to withdraw a guilty plea, the person is not relieved of the duty to pay a direct restitution order or a restitution fine. Background The victims' compensation program was created in 1965 - the first such program in the country - and is part of VCGCB. The program provides compensation for victims of violent crime. Funding for the program comes from restitution fines and penalty assessments paid by criminal offenders, as well as federal matching funds. The other core function of VCGCB is to review claims against the state and request payment of claims by the Legislature in annual legislation. A person must present a claim for damages against the state to VCGCB before filing a lawsuit. The Bureau of State Audit (BSA) report in 2008 included the following highlights: 1)From fiscal years 2001-02 through 2004-05, program compensation payments decreased from $123.9 million to $61.6 million - a 50 percent decline. Despite the significant decline in payments, the costs to support the program increased. 2)Administrative costs make up a significant portion of the Restitution Fund disbursements - ranging from 26 percent to 42 percent annually. 3)The program did not always process applications and bills as promptly or efficiently as it could have. VCGCB staff took longer than 180 days to process applications in two instances out of 49, and longer than 90 days to pay bills for 23 of 77 paid bills. SB 519 Page 9 4)VCGCB did not adequately investigate alternative sources of funding for victim reimbursement, such as insurance and public aid. 5)The program's numerous problems with the transition to a new application and bill processing system led to a reported increase in complaints regarding delays in processing applications and bills. 6)Some payments in CaRES appeared to be erroneous. Although board staff provided explanations for the erroneous payments, the fact that they were unaware of these items indicated an absence of controls that would prevent erroneous payments. 7)VCGCB lacks the necessary system documentation for CaRES. 8)There are no benchmarks, performance measures, or formal written procedures for workload management. In 2010, BSA found that the program had partially corrected five of the problems noted in the audit and corrected five others. The BSA urged VCGCB to continue correcting the problems noted in the report. For example: 1)VCGCB reduced administrative costs, but processing times for claims had increased. 2)VCGCB increased collections, but it had not determined whether outreach programs had been successful and satisfaction with the program had increased. 3)VCGCB implemented better training program for employees who examined claims submitted by crime victims. 4)VCGCB developed an inventory monitoring system and set performance benchmarks. The monitoring should improve identification and understanding of eligibility requirements. SB 519 Page 10 5)VCGCB training does include an emphasis on alternative funding sources. 6)VCGCB did complete a chapter on appeals of denials in its manual. 7)VCGCB did improve its use of the CaRES computer system. However, claims were still more quickly processed in the local agencies with which the board contracts. The Legislative Analyst (LAO) recently issued a report that recommend major changes to the entire program. At this point, a bill has not been introduced to implement the LAO recommendations. It does appear that changes made in this bill to the existing operation of the program could be integrated into any re-organization of VCGCB and its functions. FISCAL EFFECT: Appropriation: Yes Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee: Victim benefits: Major increase in CalVCP payments, potentially in excess of $4 million (Special Fund) annually due to the expanded eligibility criteria and revised payment provisions of this bill. VCGCB administration: One-time costs to VCGCB 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. Federal fund impact: Potential future increases in annual federal Victims of Crime Act (VOCA) grant funds of 60 percent 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 SB 519 Page 11 are based on state expenditures from prior years, so any potential increases to the VOCA grant award would not be received until 2018-19. SUPPORT: (Verified 6/1/15) San Francisco District Attorney (source) California Catholic Conference Californians for Safety and Justice Crime Victims United of California Institute on Aging Legal Services for Prisoners with Children Santa Clara County District Attorney OPPOSITION: (Verified 6/1/15) None received ARGUMENTS IN SUPPORT: According to the author: "In 2004, a National Institute of Justice report estimated annual nationwide costs of crime at $105 billion in medical expenses, lost earnings, and victims' services. Adding standard amounts for pain and suffering and reduced quality of life, those costs explode to $450 billion. Ensuring that crime victims are compensated for what perpetrators do to them is not only sound economic policy, but also morally sound. "In March 2015, the Legislative Analyst's Office recommended that the Victim Compensation and Government Claims Board (board) be drastically reorganized. This was not the first time a state agency identified problems with the board. In 2008, the California State Auditor noted that frequently the board delayed payments to victims beyond the required 90 day time. In one instance, the board paid the victim 255 days after the application was filed. Delays in disbursing payment persist seven years after the Auditor's report was released. SB 519 Page 12 "The board communicates with applicants solely in written English. Applicants who do not speak English or are illiterate are unable to respond to board requests, including for more information on their application. This lack of accommodation adds to application processing time. "Over 50% of denials are based on the applicant's failure to 'cooperate' with law enforcement, meaning the victim did not file a police report. This requirement disproportionately affects minors, as it is common for a minor to not file a police report so to avoid retaliation or because he or she was suffering from post-traumatic stress. "Finally, the board's current regulations set maximum funeral expenses at $5000, although the average funeral now costs between $7000 and $10,000. This bill would prohibit board regulations setting maximum funeral and burial expenses below the statutory maximum of $7,500. Prepared by:Jerome McGuire / PUB. S. / 6/2/15 22:16:54 **** END ****