Department of Public Safety

CHAPTER 604

CRIMINAL INJURIES COMPENSATION ACT

§23-604-1 Definitions §23-604-2 Statement of nondiscrimination §23-604-3 Compensation §23-604-4 Victim claims: eligibility for compensation §23-604-5 Good samaritan claims: eligibility for compensation §23-604-6 Applications and other documents §23-604-7 Delegation to administrator ~ §23-604-8 Medical examination §23-604-9 Notice; hearings §23-604-10 Computation of time §23-604-11 Order of award §23-604-12 Medical expenses §23-604-13 Funeral expenses §23-604-14 Lost earnings §23-604-15 Pecuniary loss §23-604-16 Reduction or denial of awards §23-604-17 Reconsideration by commission; judicial review

Historical Note: Chapter 23-604, Hawaii Administrative Rules, is based substantially upon Chapter 17-104, Hawaii Administrative Rules. [Eff 8/10/81; R SEP O03 1994 ] §23-604-1 Definitions, As used in this chapter: "Child" means an unmarried person who is under eighteen years of age and includes a step-child or an adopted child. "Dependents" means such relatives of a deceased 604-1

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victim who were wholly or partially dependent upon the v.ictim's income at the time of victim's death or would have been so dependent but for the incapacity due to the injury from which the death resulted and shall include the child of such victim born after victim's death. "Designated person" means a person who made payments for funeral, burial, and medical expenses on behalf of a victim. "Good cause" means that an applicant must show by credible evidence that a mental, physical, or legal impairment, or an actual or reasonably perceived fear, or threat, or coercion actually prevented the filing of an application within the required period. Good cause may not be established by ignorance of the law, incarceration, or negligent failure to ascertain the facts giving rise to a claim. "Good samaritan claim" means a claim brought pursuant to section 351-51, Hawaii Revised Statutes. "Incurred expenses" means any expenditure in cash or in kind. "Injury" means actual bodily harm, arid includes pregnancy resulting from a criminal sexual assault and mental or nervous shock and "injured" has a : corresponding meaning. "Minor" shall have the same definition as child. "Private citizen" means any natural person other than a peace officer actively engaged in the performance of official duties whether off or on duty. "Relative" means a victim's spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half brother, half sister, or spouse's parents. "Resident" means a person who maintains a permanent abode in this State. "Responsible person" means a person who has the legal responsibility to maintain or support the victim. "Substantial enrichment" means economic gain that would benefit the offender. It does not mean minimal or inconsequential benefits. "Victim" means a person who is injured, or killed by any act or omission of any other person coming within the criminal jurisdiction of the State and includes a resident of this state who is injured or killed in another state which does not have a crime victim compensation program, but does not include a 604-2

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peace officer who is actively engaged in the performance of official duties whether on or off duty. , "Victim claims" means claims brought pursuant to section 351-32, Hawaii Revised Statutes. [Eff SEP O3 1994 ] (Auth: HRS §351-68) (Imp: HRS §351-2} • §23-604-2 Statement of nondiscrimination. It is the policy of the department of public safety, criminal injuries compensation commission that no person shall, on the grounds of race, color, religion, sex, national origin, age, handicap, sexual orientation or marital status be excluded from participation in be subjected to discrimination when making their claim for compensation. [Eff SEP 03 1994 ] (Auth: HRS §351- 68} (Imp: HRS §351-68} ,.,,.;,,

§23-604-3 Compensation. The payment of any claim brought under section 351, Hawaii Revised Statutes, shall be at the discretion of the commission and shall not exceed $10,000 per occurrence. Payment of compensation to the dependents of the deceased victim shall not, in the aggregate, exceed $10,000. Compensation will only be paid for those types of losses and injuries recognized by statute. [Eff SEP03 1994 ] (Auth: HRS §351-68} (Imp: HRS §§351-51, 351-62)

§23-604-4 Victim claims: eligibility for compensation. (a) Compensation may be paid to those persons identified in subsection (b) when any private citizen is injured or killed by an act or omission of any person coming within the criminal jurisdiction of this State or when the resident of this State is injured or killed in a state without a crime compensation law or victims of Federal crimes occurring within the State. (b) The following persons are eligible to apply for compensation for loss or injury resulting from the commission of a covered crime: (1) Any victim, or if the victim is a child or incompetent, a parent or authorized guardian of the child or incompetent or such other person authorized to administer the estate 604-3

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(2) Any person financially responsible for the maintenance of the victim who has suffered pecuniary loss or incurred expenses as a result of the victim's injury or death; (3) In the event of death of the victim, any one or more of the dependents of the deceased victim; and (4) A parent of an adult deceased victim or an adult son or daughter of. a deceased victim, where the parent or adult son or daughter has incurred expenses as a result of the victim's death. (c) Covered crimes are crimes for which compensation will be paid in accordance with section 351-32, Hawaii Revised Statutes. (d) The applicant who makes a claim on behalf of dependents must have legal custody of the dependents or be otherwise legally authorized to act on the dependent's behalf. The commission may require proof of such authority. (e) An order for compensation may be made whether or not any person is prosecuted for or convicted of a crime as set forth in section 351-32, Hawaii.Revised statutes, provided that an arrest has been made or the crime has been reported to the police without undue delay. (f) Compensation may be awarded for: ( 1) Medical expenses; (2) Loss of support or earnings; (3) Attorneys fees; (4) Funeral and burial expenses and (5) Pain and suffering. [Eff SSEP O3 1994 . ) (Auth: HRS §351-68) (Imp: HRS §351-38)

§23-604-5 Good sarnaritan claims: eligibility for compensation. (a) Compensation may be paid to those persons identified in subsection (b) when any private citizen has incurred injury or property damage while assisting or preventing the commission of a crime within the state, while apprehending a person who has committed a crime within the State, or while materially assisting a peace officer who is engaged in the prevention or attempted prevention of such a crime or the apprehension or attempted apprehension of such person. 604-4

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(b) Claims may be made by a private citizen, or, if, incompetent, or a child, by the private citizen's parent or legal guardian or by any person responsible for the maintenance of the private citizen who has suffered pecuniary loss or incurred expenses as a result of the private citizen's injury. (c) Compensation may be awarded for: (1) Expenses actually and reasonably incurred as a result of the injury; (2) Pain and suffering; (3) Lost earnings; and (4) Pecuniary loss resulting directly from damage property. (Eff SEP 03 1994 (Auth: HRS §351-68) (Imp: HRS S351-31)

§23-604-6 Applications and other documents. (a} Any eligible person who seeks compensation under this chapter shall file a written application on an official application form with the commission. The application may be sent by mail or hand-carried to the commission office. The postmark date shall be deemed to be the date of filing. (b) The commission may require statements of the facts surrounding the claim and may require a certification of all supporting statements. The statements may include, among other things, information regarding recovery from other sources, amount of expenses incurred and dates of hospitalization or medical treatment. (c) All applications for compensation shall be made within eighteen months after the date of injury, death or property damage. Upon a showing of good cause, the commission may consider applications beyond this time period. To establish "good cause" for the failure to timely file an application, an applicant must show by credible evidence that a mental, physical, or legal impairment, or actual or perceived fear, or threat, or coercion actually prevented filing within the required period. Good cause may not be established by ignorance of the law, incarceration, or negligent failure to ascertain the facts giving rise to a claim. Good cause applies to all claims for injuries or damages incurred after June 7, 1989, provided the commission may consider good cause for claims involving 604-5

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injuries resulting from sexual assault or sexual abuse suffered prior to June 7, 1989, if the victim was a minor at the time of the sexual assault or sexual abuse. {d) All applications and other documents must be typewritten, or legibly printed and signed in ink by the party submitting the same. The signature of the person signing the document or application constitutes a certification that the person read the document, and that to the best of the person's knowledge, information, and belief every statement contained in the document is true and no such statements are misleading. {e) The commission may disregard any application or document which does not substantially conform with applicable rules as to required.. content and form, or is otherwise insufficient. If permitted, any amendment shall be effective as of the date of the original filing. [Eff SEP Q3 1994 ] (Auth: HRS §351-68) (Imp: HRS S351-68)

§23-604-7 Delegation to administrator. {a} The commission may assign cases to the administrator for determination of eligibility and any order for compensation if: (1) The case can be adjudicated appropriately on the basis of available records and documents; and (2) The applicant has waived a hearing before the commission and elects to proceed before the Administrator. (b) If the applicant fails to make an election within 21 days of the mailing of an election form, the decision will be rendered by the Administrator. [ Ef f SEP O3 1994 ) (Auth: HRS 351-68) (Imp: HRS S351-68)

§23-604-8 Medical examination. The commission may require a medical examination by an impartial licensed physician who shall make a report to the commission. The fees for such examination shall be paid by the commission. The commission may request a treatment plan from an attending service provider to determine appropriateness of the treatment, the connection of the treatment to the crime and portion 604-6

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for which the commission will be responsible for. The treatment plan will include, but not be limited to, information concerning the beginning date of treatment, the anticipated or actual date of termination, initial diagnosis, measurable treatment goals, and information on any pre-existing condition. If any pre-existing condition exists, the service provider shall provide information on the percentage of treatment and costs that are directly related to the incident. The commission may approve treatment plans that are in duration of less than six months. In the event that the treatment continues beyond six months, the service provider shall submit a new treatment plan every six months for the commission's review. [Eff ]·· (Auth: HRS §351-68) (Imp:

§23-604-9 Notice; hearings. (a) Not­ withstanding any other provision in this subtitle, with respect to all applications filed under this chapter, the commission shall conduct a hearing in accordance with this chapter and section to determine eligibility for compensation as soon as practically possible after the receipt of an application. The commission shall give written notice of the hearing to the applicant. Such written notice shall be given or mailed by first class mail to the parties not less than ten days prior to the date set for hearing on the application and shall state the date, time, and place of the hearing. The hearing may be continued from day to day or adjourned to a later date with notice. All hearings shall be open to the public, provided that the commission may determine that the hearing, or a portion thereof, be held in private if the offender has not been convicted or if it is in the interest of the victim. (b) The hearing shall be tape recorded and the tape will be retained by the commission for twelve months. (c) The hearing shall be conducted by the chairperson or a designated representative. Any two members shall constitute a quorum. Any member of the commission may administer oaths or affirmations to witnesses appearing before the commission. The commission shall have powers of subpoena, compulsory 604-7

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attendance of witnesses, production of documents, and examination of witnesses. The commission may receive in evidence any statement, document, information, or matter that may in the opinion of the commission contribute to its functions whether or not such statement, document, information, or matter would be admissible in a court of law. ( Eff SEP O3 1994 ] {Auth: HRS §351-68) (Imp: HRS §§351-13, 351-14)

§23-604-10 Computation of time, (a) Except for the eighteen month period for timely filing of a claim application, in computing any period of time, which is prescribed or allowed by this subtitle or any order, the first day shall be excluded and the last included, unless the last day is a Sunday or official state holiday, and then it shall.. also be excluded and the last day shall be the next business day following. (b) The time for filing an application shall be calculated as illustrated in the following examples:

Example of timely application: Date of receipt of application 1990 07 01 Date of crime 1989 01 01 Total time lapsed 01 06 00

Example of untimely application: Date of receipt of application 1990 07 02 Date of crime 1989 01 01

Total time lapsed 01 06 01

[Eff SEP O31994 ] (Auth: HRS §351-68) (Imp: HRS §351-29)

§23-604-11 Order of award. (a) Except as otherwise provided in section 23-604-2, any order for the payment of compensation under this section may be made on such terms as the commission deems appropriate. All orders for the payment of compensation shall contain words clearly informing the person that all awards and orders for payment are subject to 604-8

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appropriation by the legislature. (b) The order of priority for payment of claims shall be as follows: (1) Medical expenses; (2) Funeral and burial expenses if permitted.by statute; (3) Lost earnings; (4) Pecuniary loss; and (5) Pain and suffering. [Eff SE\> 03 1994 ] (Auth: HRS §351-68) (Imp: HRS §351-33)

S23-604-12 Medical expenses. Medical expenses are those expenses directly related to the incident which include: (1) Hospitalization; •.... (2) Home nursing care; -.,.•• (3) Plastic surgery (scar revision); (4) Air and ground ambulance service; (5) Air transportation for the victim to travel to another island for medical treatment. The victim's attending physician must certify in writing that the treatment or services are inadequate or unavailable on the victim's island or residence; (6) Prescription drugs; (7) Eyeglasses, contact lens, dentures, and prosthetics if damaged in the crime; (8) Chiropractic treatment; (9) Physical and psychological therapy; and ( 10) Replacement services if the victim is unable to perform household tasks such as yard, housekeeping, child care, and home nursing care as evidenced by a doctor's certificate of disability. (11) Out-patient physician care. (12) Other appropriate medical care. [Eff SEP 03 3 1994 ] (Auth: HRS §351-68) (Imp: HRS S351-33)

S23-604-13 Funeral expenses. (a) The commission will consider all reasonable customary funeral expenses up to $3,000. Any amounts in excess of the $3,000 must be determined to be necessary expenses. Funeral and burial expenses include: 604-9

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(1) All customary mortuary costs; and (2) All customary cemetery costs. Examples of customary costs include funeral services, use of facilities, flowers, vases, clothing for deceased, transportation costs for shipment of decease_d victim to another area for burial, and death certificates. (b) The expenses which are not reasonable customary expenses and which will not be considered for compensation include: (1) Transportation, housing, and informing distantly located family members of the death of the victim or their attendance at the funeral; or (2) Property damage because of the death of the victim. [Eff SEP O31994 ] (Auth: HRS §351-68) {Imp: HRS S351-33)

§23-604-14 Lost earnings. (a) Persons may be compensated for lost earnings. Factors to determine lost earnings include: (1) Whether the person was employed at the time of the incident; {2) The income (including tips) after the deductions of state, federal, and FICA taxes; (3) Substantiation from the person's employer of the payment or nonpayment of wages during the period of disability; (4) substantiation from the self-employed person of gross income. The supporting documents must be originals or certified copies of originals. The documents to support a claim will include, but are not limited to, general excise tax returns and Schedule C income tax returns; and (5) The nature and period of disability, which must be certified by a medical or mental health service provider. (6) If a medical certificate is not submitted, the lost earnings will be limited to four days. (b) If no evidence is presented, the claim for lost earnings will be denied. [Eff SEP O3 1994 ] (Auth: HRS §351-68) (Imp: HRS §351-33)

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§23-604-15 Pecuniary loss. The minimum award for lost support will be $1,000 per dependent. The applicant must provide evidence to establish that an award in excess of $1,000 is necessary and essential for the maintenance and well being of the child. Factors to determine dependency include: (1) Whether the person was receiving financial support and living in the same household as the victim at the time of victim's death; (2) Whether an adult child was receiving financial support due to full time·attendance in school or because of a physical or psychological disability. Proof of guardianship is required for the physical or psychologically dependent adult child; or (3) Whether the person was receiving court­ ordered child support or alimony. [Eff ] 1994 ordered child SEP 03 (Auth: HRS HRS S351-33) §351-68) (Imp:

§23-604-16 Reductions or denials of awards. (a) In determining whether an award will be reduced or denied, the following may be considered: (1) Whether an award will substantially enrich the offender; (2) Whether a person fails to utilize legal remedies (temporary restraining order, etc.); (3) Whether a person was involved in an illegal activity which was the contributing cause of his death or injury; (4) Whether a person who fails without good cause to cooperate with law enforcement officials and the prosecuting attorney in providing information that was in the knowledge or possession of the person which is related to the crime that was necessary for the apprehension or prosecution of the offender; (5) Whether a person who fails to cooperate with the commission in providing any requested information as necessary to make an award brought foward under sections 351-33 and 351- 52, Hawaii Revised Statutes; (6) Whether a person's use of provocative words or actions, just prior to his death or injury; 604-11

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(7) Whether, in vehicular crimes, an adult victim knowingly and willingly entered a motor vehicle of the offender whom the victim knew or reasonably should have known to be under the influence of drugs or alcohol or otherwise impaired; or (8) Any other relevant reason. (b) Awards may be reduced or denied by the receipt of collateral source payments such as:_ (1) Temporary disability insurance benefits; (2) Workers' compensation insurance benefits; (3) Unemployment insurance benefits; (4) Employer, union, or other group death or disability benefits/pension; (5) No-fault insurance benefits; (6) Proceeds from civil action; (7) Restitution from the offender; or (8) Medical or other insurance payments. [Eff SEP O3 1994 ] (Auth: HRS §351-68) (Imp: HRS §§351-33, 351-35)

§23-604-17 Reconsideration by commissicn: judicial review. (a) The commission may, at any time, on its own motion or in the application of any person aggrieved, reconsider the order or decision and revoke, confirm, or vary the order or decision, based upon the commission's findings. The reconsideration should include the reasons for disagreement and any new evidence that was not available at the initial hearing. The commission may grant or deny the reconsideration without a hearing or may notify the person to appear at a designated place and time for a hearing. A person will be limited to one reconsideration which must be received within thirty days after the service of an original or certified copy of such order or decision. A denial of a reconsideration shall not be subject to further administrative review. {b) Any person aggrieved by an order or decision of the commission on the sole ground that the order or decision was in excess of the commission's authority or jurisdiction, shall have a right of appeal to the circuit court in the circuit in which the person resides, provided the appeal shall be filed within thirty days after service of an original or a certified

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copy of such order or decision. [ Eff SEP O3 1994 ] (Auth: HRS §351-68) (Imp: HRS §351-17}

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