BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 1270 (Torrico)
As Introduced February 27, 2009
Hearing date: June 9, 2009
Government Code
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VICTIM COMPENSATION:
PROCEDURES FOR TIMELY APPLICATION PROCESSING
HISTORY
Source: Author
Prior Legislation: AB 2413 (Spitzer) - Ch. 571, Stats. 2006
AB 105 (Cohn) - Ch. 539, Stats. 2006
SB 972 (Poochigian) - Ch. 238, Stats. 2005
SB 631 (McPherson) - Ch. 223, Stats. 2004
SB 1423 (Chesbro) - Ch. 1141, Stats. 2002
AB 2898 (Bowler) - Ch. 1077, Stats. 1996
Support: Crime Victims United of California
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
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SHOULD THE VICTIMS COMPENSATION AND GOVERNMENT CLAIMS BOARD BE
REQUIRED TO ADOPT WRITTEN PROCEDURES AND TIMEFRAMES FOR
APPROVING OR DENYING APPLICATIONS AND SPECIFIED PROCEDURES TO
COMMUNICATE WITH ENTITIES WHEN VERIFYING THE VALIDITY OF CLAIMS?
PURPOSE
The purposes of this bill are to require the Victims
Compensation and Government Claims Board to 1) adopt written
procedures and timeframes for approving or denying applications
for reimbursement; and 2) institute specified procedures for
communicating with specified entities, such as law enforcement
and medical providers, when verifying claims for reimbursement.
Existing law creates the Victims of Crime Program, administered
by the California Victim Compensation and Government Claims
Board<1>, to reimburse victims of crime for the pecuniary losses
they suffer as a direct result of criminal acts.
Indemnification is made from the Restitution Fund, which is
continuously appropriated to the California Victim Compensation
and Government Claims Board for these purposes. (Gov. Code
13950-13968; note that 13969 and .2, .5, and .7 related to a
one-time 9/11/01 payment and are repealed effective 1/1/04.)
Existing law authorizes reimbursement to a victim for "[t]he
medical or medical related expenses incurred by the victim ?"
(Gov. Code 13957, subd. (a)(1).)
Existing law provides that the total award to or on behalf of
each victim or derivative victim may not exceed $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).)
Existing law (Gov. Code 13957, subd. (a)) provides that the
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<1> This entity was formerly known as the State Board of
Control. (Govt. Code 13900 amended by AB 2491 - Ch. 1016,
Stats. 2000.)
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Victims Compensation and Government Claims Board ("VCGCB") may
grant a crime victim's claim for pecuniary loss for the
following purposes:
Reimbursement for the amount of medical or medical-related
expenses incurred by the victim including, but not limited to,
eyeglasses, hearing aids, dentures, or any prosthetic device
taken, lost, or destroyed during the commission of the crime,
or the use of which became necessary as a direct result of the
crime.
Reimbursement for the amount of out-patient psychiatric,
psychological or other mental health counseling-related
expenses incurred by the victim or derivative victim, as
specified. The victim or derivative victim, as specified, may
be reimbursed for the expense of his or her out-patient mental
health counseling in an amount not to exceed $10,000. Victims
and derivative victims, as specified, who are not eligible for
up to $10,000 of reimbursement may be eligible to be
reimbursed for the expense of their out-patient mental health
counseling in an amount not to exceed $3,000.
Reimbursement for the expenses of non-medical remedial care
and treatment rendered in accordance with a religious method
of healing recognized by state law.
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 or derivative victim's injury or the
victim's death.
Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services.
Reimbursement for 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.
Reimbursement for the expense of renovating or retrofitting a
victim's residence or a vehicle, or both, to make the
residence, the vehicle, or both, accessible or the vehicle
operational by a victim upon verification that the expense is
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medically necessary for a victim who is permanently disabled
as a direct result of the crime, whether the disability is
partial or total.
Cash payment or reimbursement not to exceed $2,000 to a victim
for expenses incurred in relocating if the expenses are
determined 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.
The board, under compelling circumstances, may reimbursement
for moving expenses to the same victim for a second crime if
both of the following conditions are met:
1) The crime occurs more than three years from the date of
the crime giving rise to the initial relocation cash
payment or reimbursement; and,
2) The crime does not involve the same
offender.
Existing law authorizes the board to "establish maximum rates
and service limitations for medical and medical-related
services, and for mental health and counseling services ?" (Gov.
Code 13957.2.)
Existing law provides that the VCGCB shall approve or deny
applications, based on recommendations of the VCGCB staff,
within an average of 90 calendar days and no later than 180
calendar days of acceptance by the VCGCB or victim center.
(Gov. Code 13958.) The following requirements and standards
also apply in this regard:
If the VCGCB does not meet the 90-day average standard
prescribed in this subdivision, the VCGCB shall, thereafter,
report to the Legislature, on a quarterly basis, its progress
and its current average time of processing applications.
These quarterly reports shall continue until the VCGCB meets
the 90-day average standard for two consecutive quarters.
(Gov. Code 13958, subd. (a).)
If the VCGCB fails to approve or deny an individual
application within 180 days of the date it is accepted,
pursuant to this subdivision, the VCGCB shall advise the
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applicant and his or her representative, in writing, of the
reason for the failure to approve or deny the application.
(Gov. Code 13958, subd. (b).)
Existing law states the Legislature finds and declares that it
is in the public interest to assist residents of the State of
California in obtaining compensation for the pecuniary losses
they suffer as a direct result of criminal acts. (Gov. Code
13950.)
Existing law defines the following:
"Crime" is a crime or public offense, wherever it occurs,
which would be a misdemeanor or a felony if the crime had been
committed in California by a competent adult.
"Crime" includes an act of terrorism, committed against a
resident of the state, whether or not the act occurs within
California.
"Derivative victim" is one who suffers pecuniary loss as a
result of injury or death to a victim.
"Pecuniary loss" is an economic loss or expense resulting from
an injury or death to a victim of crime that has not been and
will not be reimbursed from any other source.
"Victim" is a person who sustains injury or death as a direct
result of a crime. (Gov. Code 13951.)
Existing law provides than an application for compensation shall
be filed with the VCGCB in the manner determined by the VCGCB.
(Gov. Code 13952(a).)
Existing law provides that the application for compensation
shall be verified under penalty of perjury by the individual who
is seeking compensation, who may be the victim or derivative
victim, or an individual seeking reimbursement for burial,
funeral, or crime scene clean-up expenses pursuant specified
sections of the Government Code. (Gov. Code 13952, subd.
(b)(1).)
Existing law , with specified exceptions, provides that persons
eligible for compensation include a victim, a derivative victim,
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or a person entitled to reimbursement for funeral, burial or
crime scene clean-up expenses, as specified. (Gov. Code
13955.)
Existing law 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
(Gov. Code 13955):
The person for whom compensation is being sought is a
victim, a derivative victim or a person who is entitled to
reimbursement for funeral, burial or crime scene cleanup
expenses, as specified. (Gov. Code 13955, subd.
(a)(1)-(3).)
The following conditions also apply (Gov. Code 13955,
subd. (b)):
The crime occurred within California whether or not
the victim is a resident of California. Such
compensation can be made only when the Board determines
that there are federal funds available to the state for
the compensation of crime victims. (Gov. Code 13955,
subd. (b)(1).)
Whether or not the crime occurred within the State of
California, the victim was any of the following (Gov.
Code 13955, subd. (b)(2)):
1) a resident of the state (Gov. Code 13955, subd.
(b)(2)(A));
2) a member of the military stationed in California
(Gov. Code 13955, subd. (b)(2)(B)); or
3) a family member living with a member of the
military station in California. (Gov. Code 13955,
subd. (b)(2)(C).)
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
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of the following (Gov. Code 13955, subd. (c)):
at the time of the crimes was the parent,
grandparent, sibling, spouse, child or grandchild of
the victim. (Gov. Code 13955, subd. (c)(1);
at the time of the crime was living in the
household of the victim. (Gov. Code 13955, subd.
(c)(2);
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 relationship
substantially similar to a previously listed
relationship. (Gov. Code 13955, subd. (c)(3);
another family member of the victim
including, but not limited to, the victim's
fianc? or fianc?e, and who witnessed the crime.
(Gov. Code 13955, subd. (c)(4); or
is the primary caretaker of a minor victim, but
was not the primary caretaker at the time of the
crime. (Gov. Code 13955, subd. (c)(5).)
Existing law allows the following victims may be reimbursed for
outpatient mental health counseling in an amount not to exceed
$5,000. (Gov. Code 13957, subd. (a)(2)(B)):
a derivative victim not eligible for reimbursement in the
category allowing up to $10,000;
a direct victim of the crime of unlawful sexual intercourse,
where the victim is under 16 years old and the defendant is
over 21 years old; and
a minor who suffers emotional injury as a direct result of
witnessing a violent crime and who is not eligible for
reimbursement of the costs of outpatient mental health
counseling. To be eligible for reimbursement under this
clause, the minor must have been in close proximity to the
victim when he or she witnessed the crime.
Existing law provides that when a victim dies as a result of
crime, the VCGCB may reimburse any individual who voluntarily,
and without anticipation of personal gain, pay or assumes the
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obligation to pay any of the following expenses. (Gov. Code
13957, subd. (a)(9).):
the medical expenses incurred as a direct result of the crime
in an amount not to exceed the rates or limitations
established by the VCGCB;
when the crime occurs in a residence, the reasonable costs to
clean the scene of the crime in an amount not to exceed
$1,000; or
the funeral and burial expenses incurred as a direct result of
the crimes, not to exceed $7,500.
Existing law provides that the total award to or on behalf of
each victim or derivative victim may not exceed $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).)
Existing law provides that the VCGCB shall grant a hearing to an
applicant who believes he or she is entitled to compensation to
contest a staff recommendation to deny compensation. (Gov. Code
13959. subd. (a).)
Existing law authorizes the VCGCB to order reconsideration of
its decision on its own motion or on the written request of the
applicant. The VCGCB may not consider any request for
consideration more than 30 days after personal delivery, or 60
calendar days after the mailing of the original decision. (Gov.
Code 13959, subd. (i).)
Existing law provides that no reimbursement may be made for any
expense that is submitted more than three years after it is
incurred by the victim or derivative victim. However,
reimbursement may be made for an expense submitted more than
three years after the date it is incurred if the victim or
derivative victim has affirmed the debt and is liable for the
debt at the time the expense is submitted for reimbursement, or
has paid the expense as a direct result of a crime for which a
timely application has been filed. (Gov. Code 13957.7, subd.
(a).)
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Existing law provides that compensation made pursuant to this
chapter may be on a one-time or periodic basis. If periodic,
the VCGCB may increase, reduce, or terminate the amount of
compensation according to the applicant's need, subject to the
maximum limits provided in this chapter. (Gov. Code 13957.7,
subd. (b).)
This bill requires the VCGCB, for the purposes of meeting the
requirement for the timely processing of applications, to adopt
written procedures and timeframes for approving or denying
applications and specified procedures for use in communicating
with entities when verifying the required information.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
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<2> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
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necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
In December 2008, the State Auditor listed several
recommendations to improve the Victims Compensation
and Governmental Claims Program. One recommendation
was to develop written procedures for managing the
workload at the VCGCB as well as to develop a
comprehensive plan for priorities.
In June 2008, the VCGCB began processing claims
exclusively through a new system, the Compensation and
Restitution System (CaRES).
This bill will make it easier for victim's to file and
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<3> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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receive claims with the VCGCB by requiring for the
VCGCB to have written procedures and time frames in
place.
2. Recent Audit of the Victims Compensation Program -
Inefficiencies and Delays in Processing Claims and Paying
Reimbursement
Victims Compensation Program Audit
In December 2008, the California State Auditor released a report
on the Victim Compensation Program. The report noted:
Program compensation payments sustained a 50% decrease
from Fiscal Years 2001-02 through 2004-05 as a result
of the VCGCB members' attempts to maintain the fiscal
viability of the Restitution Fund. Compensation
payments have increased since Fiscal Year 2004-05, but
not to the level they reached in Fiscal Year 2001-02.
Despite the significant decline in payments, the costs
the VCGCB incurs to support the program have
increased. These costs - ranging from 26% to 42%
annually - account for a significant portion of
Restitution Fund disbursements. In addition, although
the VCGCB generally complied with state laws and
regulations for determining whether applicants are
eligible for program benefits, it did not always
process applications and bills as promptly or
efficiently as it could have. The VCGCB's procedures
for following up with outside entities to obtain
necessary information to verify applications and bills
are not sufficiently detailed and contribute to
inconsistencies in staff efforts to obtain the
information promptly.
In late June 2006, the VCGCB began transitioning to
its current application and bill processing system.
Although the VCGCB expects to gain efficiencies and
benefits from the use of the new system, it generally
has not developed benchmarks or measured results.
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Further, the VCGCB has experienced numerous problems
with the transition. Most troubling was our
identification of payments that appeared to be
erroneous. Although VCGCB staff provided
explanations, asserting that the payments were
appropriate and the data were flawed, the fact that
they were unaware of these items indicates the absence
of controls that would prevent erroneous payments from
being made. In addition, the VCGCB's current process
for managing its workload is informal: it has not
established benchmarks, performance measures, or
formal written procedures for workload management.
Finally, the VCGCB has not established a comprehensive
outreach plan to assist it in appropriately
prioritizing its efforts and focusing on those in need
of program services. [Victim Compensation and
Government Claims Board: It has begun Improving the
Victim Compensation Program, but More Remains to Be
Done. California State Auditor Report 2008-113
(December 2008).]
Victim Compensation and Government Claims Board Response to the
Audit
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In a response letter to the audit report by the California State
Auditor, the VCGCB stated:
The audit finds, and we agree, the VCGCB can make
improvements in processing time for applications and
payments, developing specific verification procedures,
and maintaining documentation.
The VCGCB concurs with the recommendation to develop
written procedures and time frames for the appeals
process. A new procedure manual, as discussed below,
will include this subject.
The VCGCB's ability to process applications and pay
bills in a timely manner is dependent upon the timely
submittal of key information from verifying entities.
To improve the VCGCB's success at obtaining such
information, the VCGCB plans to develop a new
procedure manual, which will provide specific
direction to staff for processing applications and
bills in CaRES. The manual will include specific time
frames for follow up with non-responsive verifying
entities. Through our statewide provider forums, the
VCGCB has been communicating to service providers the
importance of prompt submittal of requested
information to the board so that we can process their
payment requests in a timely manner. Similarly, we
are reaching out to law enforcement during our
numerous law enforcement outreach seminars. (Victim
Compensation and Government Claims Board: It Has
Begun Improving the Victim Compensation Program, but
More Remains to Be Done. California State Auditor
Report 2008-113 at 70, 71 (December 2008).)
SHOULD THE VICTIMS COMPENSATION AND GOVERNMENT CLAIMS BOARD
BE REQUIRED TO ADOPT WRITTEN PROCEDURES AND TIMELINES FOR
PROCESSING CLAIMS FOR REIMBURSEMENT?
SHOULD THE BOARD BE REQUIRED TO ADOPT AND FOLLOW PROCEDURES
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FOR COMMUNICATING WITH ENTITIES THAT CAN VERIFY THE
VALIDITY OF CLAIMS FOR REIMBURSEMENT?
3. Related Pending Legislation
There are two bills that have passed this Committee that
address payments to victims and collection of restitution
fines and orders. SB 432 (Runner) directs probation
departments to forward victim contact information to the
California Department of Corrections (CDCR) so that CDCR
can pay victims from funds taken from inmate accounts. SB
314 (Calderon) directs the State Controller to deduct
delinquent restitution fines from the income tax refunds of
former defendants who owe such fines. SB 314 also
authorizes the VCGCB to pay more than the maximum $2,000
for victim relocation in an extraordinary case.
4. Suggested Technical Amendment to Correct Grammatical
Error in Text of the Bill
This bill, in part, requires the VCGCB to adopt written
procedures and timelines for approving or denying claims
for reimbursement. The text does not clearly state this
requirement in the singular (an application) or plural
(applications).
The text reads as follows: "a) [The board] shall [a]dopt
written procedures and timeframes for approving or denying
application."
It is suggested that this provision be amended to provide
that the board shall adopt procedures and timeframes to
approving or denying applications.
SHOULD A GRAMMATICAL ERROR ON AMBIGUITY IN THE TEXT OF THE
BILL BE CORRECTED?
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