N.M. Admin. Code § 10.40.2.10

Current through Register Vol. 35, No. 21, November 5, 2024

Section 10.40.2.10 - LIMITATIONS

A. If expenses incurred by any victim/claimant exceed the maximum amount allowed by statute on the date of incident, the commission board shall decide the most appropriate method of distribution of reparations awarded, pursuant to the following guidelines.

B. A victims/claimant may shall be compensated in full, to the greatest extent possible, for debts for which they have expended personal funds, and reasonable compensation for lost wages unless requested otherwise by the victim/claimant. Unpaid service providers may receive a pro-rata distribution of any funds remaining after victims/claimant have been compensated in full for personal expenditures. The commission board may in its sole discretion determine that fair reparation has been paid to any service provider.

C. All victims/claimants should provide all necessary documentation to commission staff for the verification of all reimbursable expenses. This documentation must provide the name of payee, the name of payer, the amount paid, date of services, and indicate what service was provided. This documentation may include invoices, receipts and canceled checks. Affidavits and letters shall not be considered proper documentation.

D. Restitution and civil judgments may be considered a collateral source only when there is verification of payment by the offender or responsible party.

E. The commission may award reparation for funeral related expenses occasioned by an act or omission which includes a crime enumerated in Section 31-22-8 A NMSA 1978. Awards for funeral expenses shall not exceed six thousand dollars ($6,000.00). Items not to be included for reimbursement are: food, clothing, items of value such as jewelry, saddles, etc. At the board's discretion, a restricted item may be waived.

F. The commission may award reparation for the loss of eyeglasses or contact lenses damaged as a result of an act or omission which includes a crime enumerated in Section 31-22-8 A NMSA 1978. Awards for eyeglasses or contact lenses shall not exceed three hundred fifty dollars ($350.00).

G. Loss of wages shall not be paid pursuant to this section unless the individual requesting loss of wages is employed at the time of the incident. A victim may be paid loss of wages for the time he/she is unable to work due to his/her injuries as certified by a licensed physician, psychologist, psychiatrist, dentist, master level therapist, nurse practitioner or physician's assistant. A victim or if the victim is a minor, loss of wages may be paid to a victim, parent, guardian, etc., who must take time off from their employment to transport himself or the victim to a physician, dentist, counselor or therapist or for investigative interviews and criminal justice proceedings. Loss of wages may be paid to the victim, claimant, and/or, in the case of a minor victim, guardian, for up to fourteen calendar days after the crime for a recovery period. Also, in the case of a deceased victim, up to fourteen calendar days will be allowed for the individual responsible for making funeral arrangements. No certification from a physician will be required for this period of time. Relatives, as defined in Section 31-22-3 G, of a homicide victim are eligible for loss of wages for a recovery period of up to fourteen calendar days following the date of incident. An individual who assumes the duties of providing home health care to the victim, when this care is required by physician order, may be considered for loss of wages. In all instances of payment of loss of wages, Paragraph (1) of Subsection G of 10.40.2.10 NMAC of these regulations must be followed. The board may consider special circumstances when payment of loss of wages will be in the best interest of the victim and/or claimant. Loss of wages may also be considered for the parent or guardian or caregiver of a minor if the board determines that it is in the best interest of the victim. If loss of wages are claimed, the following must be submitted for verification.

(1) Except as indicated above, a copy of a doctor's statement certifying that the victim is unable to work; or a doctor's statement included in a medical document, or medical documentation showing the inability of the victim to work. Hospitalization shall constitute grounds for paying loss of wages.

(2) a statement from the employer providing:

(a) the dates of work missed due to the incident;

(b) hourly wage;

(c) the average number of hours worked weekly; and

(d) any type of compensation received, such as sick leave, annual leave, unemployment, etc.; or

(3) if self-employed, or in the opinion of the commission staff, additional verification is required, the individual requesting loss of wages may sign a request for federal income tax account information to be sent directly to the agency; this request form will be provided by the crime victims reparation commission.

H. When any award of reparation is made by the commission, and said award is less than the maximum amount allowed by statute on the date of incident, the director may award additional reparation. Any additional reparation so awarded shall stem from the offense for which the original award was given. The commission board shall be informed of any additional reparation granted pursuant to this subsection at the next regular meeting.

I. Any victim/claimant that incurs expenses that are covered by a collateral source(s) as defined in Section 31-22-3 B NMSA 1978 including but not limited to automobile insurance, home owners/rental insurance, health insurance, indigent funds, medicaid, medicare or veterans administration shall submit covered expenses to the source(s) for payment. Only those expenses not covered by the collateral source(s) will be considered for reparation.

J. Mental health counseling and care means the assessment, diagnosis, and treatment of an individual's mental and emotional functioning that is actually and reasonably incurred as a result of the victim's injury or death. Evaluation and counseling shall be performed by a provider licensed in accordance with the New Mexico Counseling and Therapy Practice Act or licensed to practice in the state where treatment is being provided. Those providers awaiting licensure approval must be under the direct supervision of a licensed professional. This requirement may be waived at the discretion of the commission board. If it is apparent that treatment is addressing issues not related to the crime, the commission may pay for only that percentage of treatment which is addressing the victimization.

(1) All counselors shall provide the commission staff with the following:

(a) detailed patient evaluation describing the effect of the victimization;

(b) presentation of complaints: functional impairment, i.e., employment, school, interpersonal relationships, emotional/behavioral, etc.;

(c) pre-existing conditions: a diagnosis of any pre-existing conditions and their potential effect on the condition resulting from the incident;

(d) treatment goal (PLAN): describe in measurable behavioral terms the goals of treatment as they relate to the functional impairment of the victim; that is, describe the specific behavioral, emotional, and/or interpersonal changes to be achieved as the criteria for termination of treatment; note: treatment plans must be fully documented in a "problem" and "intervention" type of format; detail must be provided for both symptoms and intervention; incomplete treatment plans may delay review and payment until additional and/or correct information is received;

(e) method of accomplishing treatment goals: for each treatment goal, please explain the therapeutic approach(es) you anticipate using;

(f) medication prescribed and reason;

(g) treatment sessions: estimated length of treatment, (number, frequency and duration of treatment sessions to achieve treatment goals;

(h) explanation of what percentage of treatment is related to the victimization;

(i) itemized statement for services (including a copy of your agency's sliding fee scale evaluation);

(j) state license number;

(k) the commission may waive any of the above in the interest of the victim.

(2) When the victim is a minor, a therapist shall be prohibited from receiving reparation if entering into a dual relationship whereby they are providing treatment to the minor victim as well as to the offender.

(3) Inpatient hospitalization may be considered in life-threatening situations when the treatment has been recommended, in writing, by the victim's physician or mental health provider.

(4) The commission shall not consider payment to health providers for the following: missed appointments, report writing, telephone consultation, court appearance, therapist travel time costs, interest charged, telephone calls to the crime victims reparation commission office, or sessions which include the offender.

(5) At any time during treatment, the commission may require a follow-up report or prognosis notes from the provider detailing the results of the treatment and stating any need for additional therapy. The commission shall approve up to thirty sessions per person deemed eligible under the application submitted unless approval for additional therapy has been granted by the commission. The provider shall furnish the commission with a detailed report stating that continuing treatment is necessary due to problems created as a direct result of the victimization. The commission may at any time request an independent evaluation.

K. The commission may consider payment of Native American medicine man treatment fees.

(1) Since a reasonable and customary schedule of charges has not been established, the commission may require that the following be submitted:

(a) a written description of each procedure, function, and/or activity performed and its benefit to the victim;

(b) a written description of charges and dates for each procedure, function, and/or activity;

(c) the location that each procedure, function, and/or activity was performed;

(d) the time involved to perform such services;

(e) a summary outlining the qualifications and experiences which allows the service provider to perform the services of a medicine man;

(f) a detailed list of materials used in the ceremonies and an explanation as to the use of those materials.

(2) In all cases of medicine man care, the commission board shall only approve up to $3,000.00 per application unless prior approval has been granted by the commission board for additional treatment.

L. The provisions of Section 31-22-10 A NMSA, 1978, prohibit reparation if the victim is a member of the offender's family relationship group where payment would unjustly enrich the offender. Unjust enrichment shall be when the offender benefits from payments by either personally receiving compensation or by having compensation reduce the offender's financial obligation of medical payment, funeral expense, or other expenses incurred as a result of the crime. Payments to victims which benefits offenders in only a minimal or inconsequential manner would not be considered unjust enrichment. The victim and/or claimant must cooperate with law enforcement in the prosecution of the offender.

M. Gas expenses to transport the victim to a health provider may be considered if the travel is over thirty miles one way from the victim's residence. This travel shall be verified by the health provider's billing and reports for the travel requested. The gas will be reimbursed at the rate of twenty cents per mile.

N. Gas expenses to transport the victim to a law enforcement agency for the purpose of official business relating to the incident for which the application is filed may be considered. The distance traveled shall be more than thirty miles one way from the victim's residence and the gas will be reimbursed at the rate of twenty cents per mile.

O. The commission board may consider travel expenses related to the identification of the deceased victim by an individual who has assumed responsibility for making arrangements for the deceased.

P. The following expenses shall not be considered for reimbursement:

(1) phone bills;

(2) copying fees;

(3) postage costs.

Q. If a victim is transported to a medical facility due to the severity of the victim's injuries, gas expenses may be considered for reimbursement at the rate of twenty cents per mile for relatives, a member of the victim's family relationship group, or a dependent of the victim. Lodging and meal expenses for these individuals may also be considered at the reimbursement rate consistent with DFA rules in effect at the time of the travel. A car rental at a reasonable rate may also be considered for reimbursement. These expenses shall only be considered while the victim is at a medical facility and the distance must be more than fifty miles one way from the victim's residence.

N.M. Admin. Code § 10.40.2.10

11/7/91, 3/14/98; 10.40.2.10 NMAC - Rn & A, 10 NMAC 40.2.10, 08/31/06