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AB-2100 California Victim Compensation Board: victim restitution: violence peer counseling.(2017-2018)

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Date Published: 02/08/2018 09:00 PM
AB2100:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2100


Introduced by Assembly Member Bonta

February 08, 2018


An act to amend Sections 13956, 13957.7, and 13957.9 of the Government Code, relating to victim’s restitution, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


AB 2100, as introduced, Bonta. California Victim Compensation Board: victim restitution: violence peer counseling.
Existing law provides for the indemnification of victims of crime and commits the administration of these provisions to the California Victim Compensation Board. Existing law provides for the payment of victim’s compensation from the Restitution Fund and provides that moneys in the fund are continuously appropriated, as specified.
Existing law allows the board, until January 1, 2019, to grant reimbursement for outpatient psychiatric, psychological, or other mental health counseling-related expenses incurred by the victim or derivative victim, including peer counseling services provided by violence peer counseling services provided by a service organization for the victims of violent crimes. Under existing law, a violence peer counselor for purposes of these provisions must meet specified criteria, including that he or she has completed a training program aimed at preparing an individual who was once a mental health services consumer to use his or her life experience with mental health treatment, to promote the mental health recovery of other mental health services consumers. Existing law requires a licensed marriage and family therapist, a licensed educational psychologist, a licensed clinical social worker, or licensed professional clinical counselor supervising peer violence counseling services to be employed by the same service organization as the violence peer counselor.
This bill would continue these provisions indefinitely. By extending the use of continuously appropriated funds, this bill would make an appropriation. The bill would delete the requirement that a violence peer counselor complete a training program requiring him or her to have once been a mental health services consumer. The bill would delete the requirement that the supervising licensed mental health professional be employed by the same service organization as the violence peer counselor.
Existing law prohibits payments for peer counseling services provided by a rape crisis center from exceeding $15 for each hour of services provided and limits in-person counseling for a period not to exceed 10 weeks.
This bill would instead require the board to provide reimbursement for peer counseling services provided by a rape crisis center or a violence peer counseling organization and would require the rate to be no less than one-half of the reimbursement rate set by the board for individual or family counseling services provided by mental health interns. By expanding the amounts for which a continuously appropriated fund may be spent, the bill would make an appropriation.
Existing law prohibits a person who is convicted of a violent felony, as defined, from being granted compensation until he or she has been discharged from probation or has been released from a correctional institution and has been discharged from parole, postrelease community supervision, or mandatory supervision.
This bill would, notwithstanding the above provision, make a person who has been the victim of a violent crime eligible to receive reimbursement for mental health treatment, including violence peer counseling services, before he or she has been discharged from parole, postrelease community supervision, or mandatory supervision. By expanding the purposes for which a continuously appropriated fund may be spent, the bill would make an appropriation.
Vote: 2/3   Appropriation: YES   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 13956 of the Government Code is amended to read:

13956.
 Notwithstanding Section 13955, a person shall not be eligible for compensation under the following conditions:
(a) An application may be denied, in whole or in part, if the board finds that denial is appropriate because of the nature of the victim’s or other applicant’s involvement in the events leading to the crime, or the involvement of the person whose injury or death gives rise to the application.
(1) Factors that may be considered in determining whether the victim or derivative victim was involved in the events leading to the qualifying crime include, but are not limited to:
(A) The victim or derivative victim initiated the qualifying crime, or provoked or aggravated the suspect into initiating the qualifying crime.
(B) The qualifying crime was a reasonably foreseeable consequence of the conduct of the victim or derivative victim.
(C) The victim or derivative victim was committing a crime that could be charged as a felony and reasonably lead to him or her being victimized. However, committing a crime shall not be considered involvement if the victim’s injury or death occurred as a direct result of a crime committed in violation of Section 261, 262, or 273.5 of, or for a crime of unlawful sexual intercourse with a minor in violation of subdivision (d) of Section 261.5 of, the Penal Code.
(2) If the victim is determined to have been involved in the events leading to the qualifying crime, factors that may be considered to mitigate or overcome involvement include, but are not limited to:
(A) The victim’s injuries were significantly more serious than reasonably could have been expected based on the victim’s level of involvement.
(B) A third party interfered in a manner not reasonably foreseeable by the victim or derivative victim.
(C) The board shall consider the victim’s age, physical condition, and psychological state, as well as any compelling health and safety concerns, in determining whether the application should be denied pursuant to this section. The application of a derivative victim of domestic violence under 18 years of age or derivative victim of trafficking under 18 years of age shall not be denied on the basis of the denial of the victim’s application under this subdivision.
(b) (1) An application shall be denied if the board finds that the victim or, if compensation is sought by, or on behalf of, a derivative victim, either the victim or derivative victim failed to cooperate reasonably with a law enforcement agency in the apprehension and conviction of a criminal committing the crime. In determining whether cooperation has been reasonable, the board shall consider the victim’s or derivative victim’s age, physical condition, and psychological state, cultural or linguistic barriers, any compelling health and safety concerns, including, but not limited to, a reasonable fear of retaliation or harm that would jeopardize the well-being of the victim or the victim’s family or the derivative victim or the derivative victim’s family, and giving due consideration to the degree of cooperation of which the victim or derivative victim is capable in light of the presence of any of these factors. A victim of domestic violence shall not be determined to have failed to cooperate based on his or her conduct with law enforcement at the scene of the crime. Lack of cooperation shall also not be found solely because a victim of sexual assault, domestic violence, or human trafficking delayed reporting the qualifying crime.
(2) An application for a claim based on domestic violence shall not be denied solely because a police report was not made by the victim. The board shall adopt guidelines that allow the board to consider and approve applications for assistance based on domestic violence relying upon evidence other than a police report to establish that a domestic violence crime has occurred. Factors evidencing that a domestic violence crime has occurred may include, but are not limited to, medical records documenting injuries consistent with allegations of domestic violence, mental health records, or that the victim has obtained a permanent restraining order.
(3) An application for a claim based on a sexual assault shall not be denied solely because a police report was not made by the victim. The board shall adopt guidelines that allow it to consider and approve applications for assistance based on a sexual assault relying upon evidence other than a police report to establish that a sexual assault crime has occurred. Factors evidencing that a sexual assault crime has occurred may include, but are not limited to, medical records documenting injuries consistent with allegations of sexual assault, mental health records, or that the victim received a sexual assault examination.
(4) An application for a claim based on human trafficking as defined in Section 236.1 of the Penal Code shall not be denied solely because no police report was made by the victim. The board 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 in Section 236.1 of the Penal Code has occurred. That evidence may include any reliable corroborating information approved by the board, including, but not limited to, the following:
(A) A Law Enforcement Agency Endorsement issued pursuant to Section 236.2 of the Penal Code.
(B) A human trafficking caseworker, as identified in Section 1038.2 of the Evidence Code, has attested by affidavit that the individual was a victim of human trafficking.
(5) (A) An application for a claim by a military personnel victim based on a sexual assault by another military personnel shall not be denied solely because it was not reported to a superior officer or law enforcement at the time of the crime.
(B) Factors that the board shall consider for purposes of determining if a claim qualifies for compensation include, but are not limited to, the evidence of the following:
(i) Restricted or unrestricted reports to a military victim advocate, sexual assault response coordinator, chaplain, attorney, or other military personnel.
(ii) Medical or physical evidence consistent with sexual assault.
(iii) 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.
(iv) A letter or other written statement 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.
(v) A credible witness to whom the victim disclosed the details that a sexual assault crime occurred.
(vi) A restraining order from a military or civilian court against the perpetrator of the sexual assault.
(vii) Other behavior by the victim consistent with sexual assault.
(C) For purposes of this subdivision, the sexual assault at issue shall have occurred during military service, including deployment.
(D) For purposes of this subdivision, the sexual assault may have been committed off base.
(E) For purposes of this subdivision, a “perpetrator” means an individual who is any of the following at the time of the sexual assault:
(i) An active duty military personnel from the United States Army, Navy, Marine Corps, Air Force, or Coast Guard.
(ii) A civilian employee of any military branch specified in clause (i), military base, or military deployment.
(iii) A contractor or agent of a private military or private security company.
(iv) A member of the California National Guard.
(F) For purposes of this subdivision, “sexual assault” means an offense included in Section 261, 262, 264.1, 286, 288a, or 289 of the Penal Code, as of the date the act that added this paragraph was enacted.
(c) (1) Notwithstanding Section 13955, no except as provided in paragraph (3), a person who is convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code may not be granted compensation until that person has been discharged from probation or has been released from a correctional institution and has been discharged from parole, or has been discharged from postrelease community supervision or mandatory supervision, if any, for that violent crime. In no case shall compensation Compensation shall not be granted in any case to an applicant pursuant to this chapter during any period of time the applicant is held in a correctional institution, or while an applicant is required to register as a sex offender pursuant to Section 290 of the Penal Code.
(2) A person who has been convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code may apply for compensation pursuant to this chapter at any time, but the award of that compensation may not be considered until the applicant meets the requirements for compensation set forth in paragraph (1).
(3) Notwithstanding paragraphs (1) and (2), a person who has been a victim of a violent crime is eligible to receive reimbursement for mental health treatment, including violence peer counseling services, in accordance with Section 13957.9, before he or she has been discharged from parole, postrelease community supervision, or mandatory supervision, unless the board determines that a denial is appropriate because of the nature of the victim’s or other applicant’s involvement in the events leading to the crime, or the involvement of the person whose injury or death gives rise to the application.

SEC. 2.

 Section 13957.7 of the Government Code is amended to read:

13957.7.
 (a) No reimbursement may Reimbursement may not 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 or has paid the expense as a direct result of a crime for which an application has been filed and approved.
(b) Compensation made pursuant to this chapter may be on a one-time or periodic basis. If periodic, the board may increase, reduce, or terminate the amount of compensation according to the applicant’s need, subject to the maximum limits provided in this chapter.
(c) (1) The board may authorize direct payment to a provider of services that are reimbursable pursuant to this chapter and may make those payments prior to verification. However, the board may not, without good cause, authorize a direct payment to a provider over the objection of the victim or derivative victim.
(2) Reimbursement on the initial claim for any psychological, psychiatric, or mental health counseling services shall, if the application has been approved, be paid by the board within 90 days of the date of receipt of the claim for payment, with subsequent payments to be made to the provider within one month of the receipt of a claim for payment.
(d) Payments The board shall provide reimbursement for peer counseling services provided by a rape crisis center may not exceed fifteen dollars ($15) for each hour of services provided. or violence peer counseling organization at a rate that is not less than one-half of the reimbursement rate set by the board for individual or family counseling services provided by mental health interns. Those services shall be limited to in-person counseling for a period not to exceed 10 20 weeks plus one series of facilitated support group counseling sessions. The board shall also provide reimbursement for services provided by a peer counselor’s supervising licensed mental health professional, as described in subparagraph (D) of paragraph (3) of subdivision (c) of Section 13957.9.
(e) The board shall develop procedures to ensure that a victim is using compensation for job retraining or relocation only for its intended purposes. The procedures may include, but need not be limited to, requiring copies of receipts, agreements, or other documents as requested, or developing a method for direct payment.
(f) Compensation granted pursuant to this chapter shall not disqualify an otherwise eligible applicant from participation in any other public assistance program.
(g) The board shall pay attorney’s fees representing the reasonable value of legal services rendered to the applicant, in an amount equal to 10 percent of the amount of the award, or five hundred dollars ($500), whichever is less, for each victim and each derivative victim. The board may request that an attorney provide verification of legal services provided to an applicant and the board may contact an applicant to verify that legal services were provided. An attorney receiving fees from another source may waive the right to receive fees under this subdivision. Payments under this subdivision shall be in addition to any amount authorized or ordered under subdivision (b) of Section 13960. An attorney may not charge, demand, receive, or collect any amount for services rendered in connection with any proceedings under this chapter except as awarded under this chapter.
(h) A private nonprofit agency shall be reimbursed for its services at the level of the normal and customary fee charged by the private nonprofit agency to clients with adequate means of payment for its services, except that this reimbursement may not exceed the maximum reimbursement rates set by the board and may be made only to the extent that the victim otherwise qualifies for compensation under this chapter and that other reimbursement or direct subsidies are not available to serve the victim.

SEC. 3.

 Section 13957.9 of the Government Code is amended to read:

13957.9.
 (a)  In addition to the authorization provided in Section 13957 and subject to the limitations set forth in Section 13957.2, the board may grant for pecuniary loss, when the board determines it will best aid the person seeking compensation, reimbursement of the amount of outpatient psychiatric, psychological, or other mental health counseling-related expenses incurred by the victim or derivative victim, including peer counseling services provided by violence peer counseling services provided by a service organization for victims of violent crime, and including family psychiatric, psychological, or mental health counseling for the successful treatment of the victim provided to family members of the victim in the presence of the victim, whether or not the family member relationship existed at the time of the crime, that became necessary as a direct result of the crime, subject to the following conditions:
(1) The following persons may be reimbursed for the expense of their outpatient mental health counseling in an amount not to exceed ten thousand dollars ($10,000):
(A) A victim.
(B) A derivative victim who is the surviving parent, sibling, child, spouse, fiancé, or fiancée of a victim of a crime that directly resulted in the death of the victim.
(C) A derivative victim, as described in paragraphs (1) to (4), inclusive, of subdivision (c) of Section 13955, who is the primary caretaker of a minor victim whose claim is not denied or reduced pursuant to Section 13956 in a total amount not to exceed ten thousand dollars ($10,000) for not more than two derivative victims.
(2) The following persons may be reimbursed for the expense of their outpatient mental health counseling in an amount not to exceed five thousand dollars ($5,000):
(A) A derivative victim not eligible for reimbursement pursuant to paragraph (1), provided that mental health counseling of a derivative victim described in paragraph (5) of subdivision (c) of Section 13955, shall be reimbursed only if that counseling is necessary for the treatment of the victim.
(B) A victim of a crime of unlawful sexual intercourse with a minor committed in violation of subdivision (d) of Section 261.5 of the Penal Code. A derivative victim of a crime committed in violation of subdivision (d) of Section 261.5 of the Penal Code shall not be eligible for reimbursement of mental health counseling expenses.
(C) 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 under any other provision of this chapter. 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.
(3) The board may reimburse a victim or derivative victim for outpatient mental health counseling in excess of that authorized by paragraph (1) or (2) or for inpatient psychiatric, psychological, or other mental health counseling if the claim is based on dire or exceptional circumstances that require more extensive treatment, as approved by the board.
(4) Expenses for psychiatric, psychological, or other mental health counseling-related services may be reimbursed only if the services were provided by either of the following individuals:
(A) A person who would have been authorized to provide those services pursuant to former Article 1 (commencing with Section 13959) as it read on January 1, 2002.
(B) A person who is licensed by the state to provide those services, or who is properly supervised by a person who is so licensed, subject to the board’s approval and subject to the limitations and restrictions the board may impose.
(b) The total award to or on behalf of each victim or derivative victim may not exceed thirty-five thousand dollars ($35,000), except that this amount may be increased to seventy thousand dollars ($70,000) if federal funds for that increase are available.
(c) For the purposes of this section, the following definitions shall apply:
(1) “Service organization for victims of violent crime” means a nonprofit and charitable organization that meets both of the following criteria:
(A) Its primary mission is to provide services to victims of violent crime.
(B) It provides programs or services to victims of violent crime and their families, and other programs, whether or not a similar program exists in an agency that provides additional services.
(2) “Violence peer counseling services” means counseling by a violence peer counselor for the purpose of rendering advice or assistance for victims of violent crime and their families. Any violence peer counseling services that fall under the scope of practice of the Licensed Marriage and Family Therapist Act (Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code), the Educational Psychologist Practice Act (Chapter 13.5 (commencing with Section 4989.10) of Division 2 of the Business and Professions Code), the Clinical Social Worker Practice Act (Chapter 14 (commencing with Section 4991) of Division 2 of the Business and Professions Code), and the Licensed Professional Clinical Counselor Act (Chapter 16 (commencing with Section 4999.10) of Division 2 of the Business and Professions Code), which are not performed in an exempt setting as defined in Sections 4980.01, 4996.14, and 4999.22 of the Business and Professions Code, shall only be performed by a licensee or a registrant of the Board of Behavioral Sciences or other appropriately licensed professional, such as a licensed psychologist or board certified psychiatrist.
(3) “Violence peer counselor” means a provider of supportive and nonpsychotherapeutic peer counseling services who is employed by a service organization for victims of violent crime, whether financially compensated or not, and who meets all of the following requirements:
(A) Possesses at least six months of full-time equivalent experience in providing peer support services acquired through employment, volunteer work, or as part of an internship experience.
(B) Completed a training program aimed at preparing an individual who was once a mental health services consumer to use his or her life experience with mental health treatment, combined with other strengths and skills, to promote the mental health recovery of other mental health services consumers who are in need of peer-based services relating to recovery as a victim of a violent crime.
(C) Possesses 40 hours of training on all of the following:
(i) The profound neurological, biological, psychological, and social effects of trauma and violence.
(ii) Peace-building and violence prevention strategies, including, but not limited to, conflict mediation and retaliation prevention related to gangs and gang-related violence.
(iii) Post-traumatic stress disorder and vicarious trauma, especially as related to gangs and gang-related violence.
(iv) Case management practices, including, but not limited to, ethics and victim compensation advocacy.
(D) When providing violence peer counseling services, is supervised by a marriage and family therapist licensed pursuant to Chapter 13 (commencing with Section 4980) of Division 2 of the Business and Professions Code, a licensed educational psychologist licensed pursuant to Chapter 13.5 (commencing with Section 4989.10) of Division 2 of the Business and Professions Code, a clinical social worker licensed pursuant to Chapter 14 (commencing with Section 4991) of Division 2 of the Business and Professions Code, or a licensed professional clinical counselor licensed pursuant to Chapter 16 (commencing with Section 4999.10) of Division 2 of the Business and Professions Code. For the purposes of this subparagraph, a licensed marriage and family therapist, licensed educational psychologist, licensed clinical social worker, or licensed professional clinical counselor shall be employed by the same service organization as the violence peer counselor.

(d)This section shall remain in effect only until January 1, 2019, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2019, deletes or extends that date.