Title of Regulation: 12VAC35-240. Victims of Sterilization Fund Administration (adding 12VAC35-240-10 through 12VAC35-240-70).

Statutory Authority: § 37.2-203 of the Code of Virginia.

Effective Dates: November 21, 2015, through May 20, 2017.

Agency Contact: Ruth Anne Walker, Regulatory Coordinator, Department of Behavioral Health and Developmental Services, Jefferson Building, 1220 Bank Street, 11th Floor, Richmond, VA 23219, telephone (804) 225-2252, FAX (804) 786-8623, or email ruthanne.walker@dbhds.virginia.gov.

Preamble:

Item 307 T of Chapter 665 of the 2015 Acts of Assembly establishes compensation for individuals who were involuntarily sterilized pursuant to the 1924 Virginia Eugenical Sterilization Act and who are living as of February 1, 2015. The act enacts requirements for the compensation program, including funding limits on claims and a requirement that disbursements be based on the date at which sufficient documentation is provided, authorizes the Department of Behavioral Health and Developmental Services (DBHDS) to pay claims, and requires DBHDS to adopt emergency regulations to implement the act.

The emergency regulation establishes (i) eligibility criteria, (ii) submission of claims, (iii) compensation, (iv) appropriate documentation for verification, and (v) an administrative process for handling claims.

CHAPTER 240
VICTIMS OF STERILIZATION FUND PROGRAM

12VAC35-240-10. Definitions.

"Act" means Chapter 394 of the 1924 Acts of Assembly passed by the Virginia General Assembly on March 20, 1924, known as the Virginia Eugenical Sterilization Act, which provided for the sexual sterilization of individuals admitted to state institutions in certain cases.

"Application" means the Application Form for Filing a Claim for Compensation for Victims of the 1924 Eugenical Sterilization Act made available by the Department of Behavioral Health and Developmental Services.

"Claimant" means any person claiming eligibility who applies for compensation pursuant to this chapter.

"Commissioner" means the Commissioner of the Virginia Department of Behavioral Health and Developmental Services.

"Department" means the Virginia Department of Behavioral Health and Developmental Services.

"Lawfully authorized representative" means (i) a person who is permitted by law or regulation to act on behalf of an individual or (ii) a personal representative of an estate, as defined in § 64.2-100 of the Code of Virginia, of an individual who died on or after February 1, 2015.

"Review panel" means a minimum of three department staff members who are appointed by the commissioner to make final determinations on applications for claims that have been deemed complete pursuant to this chapter.

"Sterilization" means a medical procedure or form of birth control that leaves a male or female unable to reproduce or conceive children and was done pursuant to the Act.

12VAC35-240-20. Eligibility criteria.

An individual or his lawfully authorized representative is eligible to request compensation under this chapter if the individual was:

1. Involuntarily sterilized pursuant to the Act;

2. Sterilized while a patient at Eastern State Hospital; Western State Hospital; Central State Hospital; Southwestern Virginia Mental Health Institute, formerly known as Southwestern State Hospital; or the Central Virginia Training Center, formerly known as the State Colony for Epileptics and Feeble-Minded; and

3. Living as of February 1, 2015.

12VAC35-240-30. Claims for compensation.

A. Any individual who meets the eligibility criteria, or his lawfully authorized representative, if applicable, may submit a claim for compensation.

B. Claimants shall submit applications with proof of identity and proof that the eligibility criteria are met. When an application is submitted for an individual who died on or after February 1, 2015, the application shall include a certified copy of a state issued death certificate.

C. To establish the claimant's proof of identity, a copy of one or more of the following documents bearing a photographic image of the claimant's face and signature shall be submitted with the application form:

1. A state issued driver's license.

2. A state issued identification card.

3. A United States passport.

4. A foreign passport with Visa, I-94 or I-94W.

5. A United States military card, active or retired member.

D. To establish proof of involuntary sterilization pursuant to the Act, a copy of one or more of the following shall be submitted with the application:

1. Letter notifying a parent, guardian, or a lawfully authorized representative that the involuntary sterilization procedure was performed on the claimant.

2. Progress notes from the claimant's hospital record documenting that the involuntary sterilization procedure was performed on the claimant.

3. Case summary from the claimant's hospital record documenting that the involuntary sterilization procedure was performed on the claimant.

4. Physician's order for involuntary sterilization from the claimant's hospital record.

5. Operative record of involuntary sterilization from the claimant's hospital record.

6. Involuntary sterilization record summary from the claimant's hospital record.

7. Nurses' notes documenting post-operative care was provided to the individual claimant after involuntary sterilization of the claimant.

8. Other documents that show that the involuntary sterilization procedure was performed on the claimant pursuant to the Act.

E. Any person submitting a claim on behalf of a claimant shall provide documentation that he is the claimant's lawfully authorized representative.

F. All applications shall be notarized by a notary public.

G. The department shall not accept more than one application in a single mailing.

H. Applications shall be submitted to the department through the United States Postal Service. The department shall not accept any application that is submitted in any other manner including by any shipping company, electronically, delivered by courier service, or in person.

I. The department shall send a notice that the application was received to the claimant or his lawfully authorized representative in writing within seven calendar days of receipt of the application.

12VAC35-240-40. Screening.

A. The department shall screen the application and accompanying documentation for completeness.

B. If the department determines an application to be incomplete, it shall notify the claimant or his lawfully authorized representative that the application is not complete in writing by certified mail no later than seven calendar days following the screening of the application. The notification shall specify the additional documentation required to complete the application.

C. If the application is incomplete, the claimant shall have 60 calendar days from the receipt of the notification to submit the required documentation. If the required documentation is not received within 60 calendar days, the application will be closed, and the claimant will be required to submit a new application.

D. No application shall be considered by the review panel or otherwise acted on until the department determines it to be complete with all required documentation. Completed applications shall be submitted to the review panel for consideration.

12VAC35-240-50. Review panel.

A. The commissioner shall appoint a review panel to consider applications and make final determinations of eligibility for compensation pursuant to this chapter.

B. The review panel shall consider completed applications in the order in which the applications are determined to be complete according to date and time of receipt of all required documentation.

C. The claimant or his lawfully authorized representative shall be notified of the decision of the review panel in writing by certified mail within seven calendar days of the decision.

12VAC35-240-60. Requests for reconsideration.

A. Any claimant, or his lawfully authorized representative, who disagrees with the determination of the department may submit a written request for reconsideration to the commissioner, or his designee, within 30 calendar days of the date of the written notice of denial of a claim pursuant to this chapter.

B. The commissioner, or his designee, shall provide an opportunity for the claimant, or his lawfully authorized representative, to submit for review any additional information or reasons why his claim should be approved as requested.

C. The commissioner, or his designee, after reviewing all submitted materials shall render a written decision on the request for reconsideration within 30 calendar days of the receipt of the request and shall notify the claimant or his lawfully authorized representative in writing. The commissioner's decision shall be binding.

D. Claimants may obtain further review of the decision in accordance with the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

12VAC35-240-70. Compensation.

A. Compensation per verified claim shall be $25,000 and shall be contingent on the availability of funding. All eligible claims shall be compensated in the order in which they are determined by the review panel to be verified and eligible for compensation.

B. Should funding be exhausted prior to the payment of all verified claims, the department shall continue to accept and review applications. Claims determined to be verified after funding has been exhausted shall be maintained by the department according to the date and time the review panel determines a claim is verified and eligible for compensation. Any such claim shall not be denied but the claimant shall be notified in writing that his claim has been determined eligible for compensation, that funding has been exhausted, and that his application will be maintained by the department.

C. Should additional program funding become available, the department shall first compensate claims with verified applications in the order in which they were verified and maintained by the department pursuant to subsection B of this section.

FORMS (12VAC35-240)

Application for Filing a Claim for Compensation for Victims of the 1924 Virginia Eugenical Sterilization Act, VESC Form 1004 (undated, filed 11/2015)