BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
2
5
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AB 2545 (Lowenthal) 5
As Amended June 5, 2014
Hearing date: June 17, 2014
Government Code
JM:mc
VICTIM COMPENSATION:
SEXUAL ASSAULT AGAINST MILITARY PERSONNEL
HISTORY
Source: California Coalition Against Sexual Assault
Prior Legislation: None
Support: Veterans Caucus of the California Democratic Party;
American Legion, Department of California; AMVETS,
Department of California; Military Officers Association
of America, California Council of Chapters; Veterans of
Foreign Wars, Department of California; Vietnam
Veterans of California; California State Council;
National Association of Social Workers, California
Chapter
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
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KEY ISSUES
SHOULD CERTAIN DOCUMENTATION BE ALLOWED FOR CLAIMS MADE TO THE
VICTIMS OF CRIME PROGRAM BY MILITARY PERSONNEL?
(CONTINUED)
FOR PURPOSES OF CRIME VICTIM COMPENSATION, SHOULD A PERPETRATOR
INCLUDE ACTIVE DUTY MILITARY PERSONNEL, A CIVILIAN MILITARY
EMPLOYEE, OR A CONTRACTOR OR AGENT OF A PRIVATE MILITARY OR SECURITY
COMPANY?
PURPOSE
The purpose of this bill is to 1) specify in statute that a
claim by a person in the military to the Victims of Crime
Program for compensation for sexual assault recovery services
can be documented by a report to a military counselor or victim
services personnel, statements to a chaplain, attorney or
credible witness, a law enforcement report, a restraining order,
reports from a specified sexual counselor or licensed therapist,
or by other behavior consistent with sexual assault; and 2)
define a perpetrator of a sexual assault against a person in the
military to include active duty military personnel, or a
contractor or agent of a private military or security company.
Existing law states that all persons who suffer losses as a
result of criminal activity shall have the right to restitution
from the perpetrators. (Cal. Const., art. I, � 28(b)(13).)
Existing law requires the court, to order a criminal defendant
to pay both a restitution fine and restitution to the victim or
victims, if any, in addition to any other penalty provided or
imposed under the law. (Pen. Code � 1202.4, subd. (a)(3).)
Existing law establishes the Victims Compensation and Government
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Claims Board (VCGCB or board) to operate the California Victim
Compensation Program (CalVCP). (Gov. Code
� 13950 et. seq.)
Existing law provides than an application for compensation shall
be filed with VCGCB in the manner determined by the board.
(Gov. Code � 13952, subd.(a).)
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 from whom compensation is being sought who is
any of the following:
o A victim;
o A derivative victim; or
o A person who is entitled to reimbursement for
funeral, burial or crime scene clean-up expenses
pursuant to specified sections of the Government Code.
Either of the following conditions is met:
o 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; or
o 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.
If compensation is being sought for derivative victim,
the derivative victim is a resident of California, or the
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resident of another state who is any of the following:
o At the time of the crimes was the parent,
grandparent, sibling, spouse, child or grandchild of
the victim;
o At the time of the crime was living in the
household of the victim;
o 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;
� Another family member of the victim
including, but not limited to, the victim's
fianc� or fianc�e, 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.
Existing law authorizes VCGCB to reimburse for pecuniary loss
for the following types of losses (Gov. Code � 13957, subd.
(a)):
The amount of medical or medical-related expenses
incurred by the victim, subject to specified limitations;
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;
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 injury or the victim's
death, subject to specified limitations;
Cash payment to, or on behalf of, the victim for job
retraining or similar employment-oriented services;
The expense of installing or increasing residential
security, not to exceed $1,000, with respect to a crime
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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;
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
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.
Existing law 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).)
Existing law 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 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).)
Existing law provides that a domestic violence claim may not be
denied solely because the victim did not make a police report.
The board 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).)
Existing law states that an application for a claim based on
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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 the board 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 the board, including, but not limited
to, the following (Gov. Code � 13956, subd. (b)(3)):
A Law Enforcement Agency Endorsement was issued, as
specified;
A human trafficking caseworker has attested by affidavit
that the individual was a victim of human trafficking.
Existing regulations provide that a victim has the burden to
prove that a crime for which compensation may be paid occurred.
Medical or mental health records may not be sufficient to prove
the crime occurred. (2 CCR � 649.38.)
Existing regulations provide the following as concerns the
responsibility of victims to cooperate with law enforcement:
(a) A victim or derivative victim shall reasonably
cooperate with any law enforcement agency in its
investigation of the qualifying crime and the
apprehension and prosecution of any person involved in
the qualifying crime.
(b) A victim or derivative victim who knowingly and
willingly failed to reasonably cooperate with a law
enforcement agency in the investigation of the
qualifying crime and the apprehension and conviction
of any person involved in the qualifying crime is not
eligible for assistance.
(c) A victim or derivative victim who initially
cooperated with a law enforcement agency as required
by subsection (a), and was determined to be eligible
for assistance, and subsequently knowingly and
willingly failed to cooperate with a law enforcement
agency, may be found eligible for assistance only
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during the period the victim or derivative victim
cooperated with a law enforcement agency. ? (e)
Cooperation with a law enforcement agency includes,
but is not limited to:
(1) reporting the qualifying crime;
(2) completely and truthfully responding to requests
for information in a timely manner;
(3) cooperating with identifying and apprehending any
person involved in the qualifying crime; and
(4) testifying in all proceedings, including
restitution proceedings, as required. (2 CCR �
649.59.)
Existing regulations concerning proof of a domestic violence
crime for which the victim may be compensated provide:
(a) Factors that may be considered as evidence of a
domestic violence qualifying crime include, but are
not limited to:
(1) the perpetrator was prosecuted for the qualifying
crime;
(2) the perpetrator was enrolled in a batterers'
program or its predecessor domestic violence diversion
program as a result of the qualifying crime;
(3) a report from law enforcement concluded that a
domestic violence crime was committed against the
victim;
(4) a report from a battered women's program
corroborates the allegation of domestic violence;
(5) medical records document injuries consistent with
the allegation of domestic violence;
(6) a law enforcement officer obtained an emergency
protective order under Family Code section 6250;
(7) a report from a law enforcement officer or
prosecuting attorney concluded that a crime of
domestic violence occurred;
(8) a violation of probation due to a domestic
violence qualifying crime against the victim.
(b) For the purpose of this section, "domestic
violence" shall have the same meaning as in Penal Code
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section 13700(b). (2 CCR � 649.44.)
This bill sets out factors that the Victims Compensation and
Government Claims Board (VCGCB) shall consider for purposes of
determining if a claim qualifies for compensation include, but
are not limited to, the evidence of the following:
Restricted or unrestricted reports to a military victim
advocate, sexual assault response coordinator, chaplain,
attorney, or other military personnel;
Medical or physical evidence consistent with sexual
assault;
A written or oral report from military law enforcement
or a civilian law enforcement agency concluding that a
sexual assault crime was committed against the victim;
A notarized report from a sexual assault counselor, as
defined in Section 1035.2 of the Evidence Code, licensed
therapist, or mental health counselor, stating that the
victim is seeking services related to the allegation of
sexual assault;
A credible witness to whom the victim disclosed the
details that a sexual assault crime occurred;
A restraining order from a military or civilian court
against the perpetrator of the sexual assault; and,
Other behavior by the victim consistent with sexual
assault.
This bill requires, for purposes of this subdivision, the sexual
assault at issue to have occurred during military service,
including deployment.
This bill states, for purposes of this subdivision, the sexual
assault may have been committed offbase.
This bill defines "perpetrator" as an individual who is any of
the following at the time of the sexual assault:
An active duty military personnel from the United States
Army, Navy, Marine Corps, Air Force, or Coast Guard;
A civilian employee of any military branch specified
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above, military base, or military deployment;
A contractor or agent of a private military or private
security company; or
A member of the California National Guard.
This bill defines "sexual assault" to include rape, spousal
rape, penetration by a foreign object, sodomy, oral copulation,
or forcible acts of penetration, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
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submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
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created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for this Bill
According to the author:
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While existing law requires the California Victim
Compensation Program Board to deny an application if
they find that the victim failed to cooperate
reasonably with a law enforcement agency in the
apprehension and conviction of a criminal committing
the crime, it also specifies that an application for
compensation cannot be denied solely on the basis of
specified behavior by the victim, such as failure to
make a police report. These provisions exist for
victims of domestic violence and victims of human
trafficking.
AB 2545 seeks to allow military sexual assault
survivors similar considerations to those provided to
victims of domestic violence and human trafficking
when they apply for restitution with the California
Victim Compensation Program. Under this bill, a
report from a sexual assault counselor or licensed
therapist could be considered as part of the evidence
used to support a claim for restitution.
2. Basic Purpose and History of the Victims of Crime Program
The victims' compensation program (CalVCP) in the Victims
Compensation and Government Claims Board (board) was created in
1965, the first such program in the country<1>. VCGCB provides
compensation for victims of violent crime. It reimburses
eligible victims for many crime-related expenses. Funding for
the board comes from restitution fines and penalty assessments
paid by criminal offenders, as well as federal matching funds.
The other core function of the board 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 the board before filing a lawsuit.<2>
3. VCGCB Regulations on Proof of a Domestic Violence Crime are
Similar to the Provisions of this Bill Concerning Proof of
---------------------------
<1> http://www.vcgcb.ca.gov/board/.
<2> http://www.vcgcb.ca.gov/claims/.
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Sexual Assault Against Military Personnel
The board promulgates detailed regulations to implement the
governing statutes. The regulations are generally written in
everyday English. As noted above in the "Purpose" section
describing existing law, a victim generally must prove that a
crime for which compensation is allowed occurred, and the victim
must cooperated with law enforcement.
The regulations concerning proof of domestic violence do not
explicitly provide an exception or relaxed standards for
cooperation with law enforcement. Nevertheless, the evidence
allowed to prove a domestic violence crime includes a medical
report or a report from a battered women's program, in addition
to law-enforcement related reports or documentation. As to
other crimes, regulations specifically state that medical
reports may not be sufficient to prove a crime. It can be
implied that cooperation with law enforcement for domestic
violence might not need to be of the quantity or quality
required for other claims.
Arguably, the expanded documentation required to establish
domestic violence reflects the reality that a domestic violence
perpetrator likely knows the victim's life so well as to be
particularly able to exact retribution for cooperation by the
victim with law enforcement. Further, a domestic violence
victim may need to have ongoing interaction of some kind with
the perpetrator. These could often include child custody and
care matters. This bill essentially requires consideration of
similar factors in cases where military personnel seek
compensation for sexual assault.
4. Sexual Assault in the Military - Victims' Experiences and
Prosecution Procedures
Media reports and congressional proceedings have noted the
difficulties military sexual assault victims may have in
reporting and seeking justice. Military law allows a commanding
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officer to dismiss a complaint.<3> In May, 2014, a bill
authored by Senator Kirsten Gillibrand to remove authority over
sexual assault and other serious crime prosecutions from the
chain of command fell a few votes short of passage.<4>
There have been numerous reports of military sexual assault
victims being ostracized in their close-knit communities. This
bill appears to provide some redress or compensation for
military sexual assault victims who may reasonably be reluctant
to make reports of assault because they might suffer additional
harm with little support.<5> The military has instituted a new
program of sexual assault counselor-advocates<6>, and the number
of sexual assault reports has increased recently perhaps
indicating that victims now feel less reluctant to come forward.
5. Condition of the Victims of Crime Fund and Payments
Condition of the Restitution Fund and Reserves
The balance and reserve of the Restitution Fund can fluctuate
widely. The reserve for fiscal year 2011-2012 was $28.5
million, rising to $70 million in 2012-2013. By the beginning
of 2013-2014, the fund had a reserve of $80 million.
The board now projects a structural deficit - defined as a
shrinking reserve - for the next two fiscal years. The fund
projects a reserve of $71.5 million for the beginning of fiscal
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<3>
http://www.npr.org/2014/03/06/286886153/senate-blocks-military-se
xual-assault-reforms.
<4>
http://www.nytimes.com/2014/05/02/us/military-sex-assault-report.
html.
<5>
http://www.nytimes.com/2014/03/03/us/military-sex-assault-trial-s
howcases-2-approaches-to-prosecution.html.
<6>
http://www.nytimes.com/2014/05/02/us/military-sex-assault-report.
html.
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2014-2015, dropping to an estimated $61.7 at the beginning of
2015-2016. However, the board's prior projected reserve for
2013-14 of $55 million significantly under-projected the
reserve, as the actual reserve amount was $80 million. Board
representatives explained that payments to victims and
administrative costs were $20 million and $5 million lower than
projected respectively.
6. Audit of the Victims of Crime Program
2008 California State Auditor Report on the Victim Compensation
Program
The Bureau of State Audit (BSA) report in 2008 included the
following highlights:
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.
Administrative costs make up a significant portion of the
Restitution Fund disbursements-ranging from 26 percent to 42
percent annually.
The program did not always process applications and bills as
promptly or efficiently as it could have. Board 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.
The board did not adequately investigate alternative sources
of funding for victim reimbursement, such as insurance and
public aid.
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.
Some payments in CaRES<7> appeared to be erroneous.
Although board staff provided explanations for the erroneous
payments, the fact that they were unaware of these items
--------------------------
<7> Claim review computer system.
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indicated an absence of controls that would prevent
erroneous payments.
The board lacks the necessary system documentation for
CaRES.
There are no benchmarks, performance measures, or formal
written procedures for workload management.
2010 Update and Progress Report
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 the board to continue correcting the problems
noted in the report, for example:
The board reduced administrative costs, but processing times
for claims had increased.
The board increased collections, but it had not determined
whether outreach programs had been successful and
satisfaction with the program had increased.
The board implemented better training program for employees
who examined claims submitted by crime victims.
The board developed an inventory monitoring system and set
performance benchmarks. The monitoring should improve
identification and understanding of eligibility
requirements.
Board training includes an emphasis on alternative funding
sources.
The board completed a chapter on appeals of denials in its
manual.
The board improved its use of the CaRES computer system.
However, claims were still more quickly processed in the
local agencies with which the board contracts.
It appears that the BSA has not issued a progress report or
update on the program since 2010. It is not clear what the
board has done to address the issues raised in the BSA audit
since that time. Many, if not most, of these issues affect the
ability of the board to timely and adequately compensate
victims, including the ability to compensate elderly and
dependent adult victims of fraud. The issues will also be
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addressed in the Appropriations Committee.
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Payments to Victims in Recent Years
In fiscal years 2006-07 and 2007-08, the board paid victims
between $72 million and $79 million.<8> Victim payments for
2008-09 through 2010-2011 rose to $95 million per year. In
fiscal year 2011-2012, the amount fell to approximately $70.5
million. In fiscal year 2012-2013, the board paid victims $64
million. In 2011, the board reduced maximum payments and
payment rates for some categories of reimbursement, including
funeral expenses and mental health services.
7. Audit of the Victims of Crime Program
2008 California State Auditor Report on the Victim Compensation
Program
The Bureau of State Audit (BSA) report in 2008 included the
following highlights:
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.
Administrative costs make up a significant portion of the
Restitution Fund disbursements-ranging from 26 percent to 42
percent annually.
The program did not always process applications and bills as
promptly or efficiently as it could have. Board 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.
The board did not adequately investigate alternative sources
of funding for victim reimbursement, such as insurance and
public aid.
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
--------------------------
<8> These dollar amounts are approximated or rounded to the
nearest million.
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applications and bills.
Some payments in CaRES<9> 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.
The board lacks the necessary system documentation for
CaRES.
There are no benchmarks, performance measures, or formal
written procedures for workload management.
2010 Update and Progress Report
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 the board to continue correcting the problems
noted in the report, for example:
The board reduced administrative costs, but processing times
for claims had increased.
The board increased collections, but it had not determined
whether outreach programs had been successful and
satisfaction with the program had increased.
The board implemented better training program for employees
who examined claims submitted by crime victims.
The board developed an inventory monitoring system and set
performance benchmarks. The monitoring should improve
identification and understanding of eligibility
requirements.
Board training includes an emphasis on alternative funding
sources.
The board completed a chapter on appeals of denials in its
manual.
The board improved its use of the CaRES computer system.
However, claims were still more quickly processed in the
local agencies with which the board contracts.
It appears that the BSA has not issued a progress report or
update on the program since 2010. It is not clear what the
---------------------------
<9> Claim review computer system.
AB 2545 (Lowenthal)
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board has done to address the issues raised in the BSA audit
since that time. Many, if not most, of these issues affect the
ability of the board to timely and adequately compensate
victims, including the ability to compensate elderly and
dependent adult victims of fraud. The issues will also be
addressed in the Appropriations Committee.
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