TITLE 12. HEALTH
Title of Regulation: 12VAC35-240. Eugenics
Sterilization Compensation Program (adding 12VAC35-240-10 through 12VAC35-240-70).
Statutory Authority: § 37.2-203 of the Code of Virginia.
Public Hearing Information: No public hearings are
Public Comment Deadline: April 19, 2017.
Effective Date: May 4, 2017.
Agency Contact: Ruth Anne Walker, Regulatory
Coordinator, Department of Behavioral Health and Developmental Services, 1220
Bank Street, 11th Floor, Richmond, VA 23219, telephone (804) 225-2252, FAX
(804) 786-8623, or email email@example.com.
Basis: Section 37.2-203 of the Code of Virginia
authorizes the State Board of Behavioral Health and Developmental Services to
adopt regulations necessary to carry out the provisions of Title 37.2 (§
37.2-100 et seq.) of the Code of Virginia and other laws of the Commonwealth
administered by the Commissioner of the Department of Behavioral Health and
Developmental Services or the department. Chapter 665 of the 2015 Acts of
Assembly (the Appropriation Act) enacted the Commonwealth's Compensation for
Victims of the 1924 Eugenical Sterilization Program and authorized
regulations to implement of the chapter.
Purpose: The regulation describes appropriate
documentation to verify the claims of and to compensate individuals who were
victims of forced sterilization pursuant to the Virginia Eugenical
Sterilization Act ("Act") and who were living as of February 1, 2015
(up to $25,000 per individual). The regulation also provides an administrative
process for handling all claims. This regulation does not impact the health,
safety, or welfare of citizens, except to compensate individuals who were involuntarily
sterilized according the Act.
Rationale for Using Fast-Track Rulemaking Process: Since
the current regulations were approved as emergency by the Governor on November
20, 2015, there have been no complaints filed by the public about the
administrative structure for compensation.
Substance: The substantive changes are intended to make
the process more flexible for those claimants who clearly are known to the
agency or organization that provides care, but due to certain life
circumstances, such as extended residence in a facility or lack of family
documentation, may not have typical forms of identification. Also, if an
individual has an outdated photo identification card but is no longer
physically able to obtain one, the regulation allows the department reasonable
flexibility to consider other documentation to confirm identity.
The changes from the emergency regulation currently in effect
to this permanent regulation:
• Clarify appropriate documentation for proof of identity,
including adding documents that are acceptable and language for flexibility
regarding the availability of identification with both a photographic image and
a signature. For example, identification bearing a photographic image is
'preferred'; identification from U.S. territories, a U.S. military dependent's
card, or a Native American tribal document is acceptable.
• Clarify the need to document proof of any name change and
list the following as acceptable proof: marriage license, divorce decree, death
certificate, adoption record, court order approving a legal change of name, or
other legal document indicating an official name change.
• Give the department discretion to deem other documents
than those listed elsewhere in the regulation as sufficient to prove a
• Allow the department to use a cross match with a federal
or state government data system to establish a claimant's identity.
Issues: The changes are intended to assist victims of
past action by the Commonwealth under the Act. There is no burden on private citizens
or businesses due to these provisions, or any advantage or disadvantage. There
is no adverse impact to the agency or the Commonwealth.
Department of Planning and Budget's Economic Impact
Summary of the Proposed Amendments to Regulation. Pursuant to
Chapter 665 of the 2015 Acts of the Assembly, the Board of Behavioral Health
and Development Services (Board) proposes to promulgate a replacement for an
emergency regulation that is set to expire May 20, 2017. This regulation, and
the emergency regulation it replaces, set rules for the compensation of
individuals involuntarily sterilized under the Virginia Eugenical Sterilization
Act of 1924 (repealed in 1974).
Result of Analysis. The benefits of this proposed regulatory
action outweigh its costs.
Estimated Economic Impact. In 1924, Virginia passed a law that
allowed individuals who had been committed to state institutions,1
and who were deemed mentally ill or mentally defective, to be forcibly
sterilized. In 1974, the Virginia Eugenical Sterilization Act was repealed and
in 1979, other statutory language that contained authorization for most
involuntary sterilization was also repealed.2 Between 1924 and 1979,
it is estimated that between 7,325 and 8,300 individuals were forcibly
sterilized in Virginia.3
In 2015, the General Assembly approved a compensation program
for victims of Virginia's involuntary sterilization program who were living as
of February 1, 2015 (or their estates if they were living on that date but
subsequently died before their claim could be filed or processed). The General
Assembly approved compensation up to $25,000 per individual4 and
directed the Department of Behavioral Health and Developmental Services (DBHDS)
to establish a process and standards under which claims would be considered and
paid. The General Assembly also authorized the Board to promulgate an emergency
regulation containing the process and standards for considering claims. The
Board promulgated an emergency regulation which became effective on November
20, 2015. This proposed regulation will replace the emergency regulation that
is set to expire May 20, 2017.
This proposed regulation, and the emergency regulation that it
replaces, requires that claimants who meet the legislative criteria submit a
notarized claim application along with proof of identity and proof that they
were involuntarily sterilized pursuant to the Virginia Eugenical Sterilization
Act. The proposed regulation, and the emergency regulation it replaces, also
set standards for proof of name change (if the name on the proof of identity is
different than the name on the records of involuntary sterilization) and
documentation that lawfully authorized representatives of claimants must submit
to prove lawful authorization. The proposed regulation additionally sets
parameters for a screening process to ensure that applications are complete and
all documentation has been submitted, sets the process for appointing the
review panel and for application reconsideration and sets the rules under which
compensation will be dispersed. This proposed regulation will benefit victims
of forced sterilization in the Commonwealth by partially compensating them for
the losses they would have incurred on account of being unable to bear or
father children. Victims will also receive a non-monetary benefit from this
program as the monetary compensation is also an acknowledgment of the harm they
wrongly suffered. The Commonwealth, and therefore the taxpayers of Virginia,
will incur costs of up to $25,000 for each claim paid. The benefits that will
accrue to claimants likely outweigh these costs.
Businesses and Entities Affected. This proposed regulation
affects all individuals who were involuntarily sterilized under the Virginia
Eugenical Sterilization Act and who were still living on February 1, 2015.
Although estimates exist for how many individuals were likely sterilized, no
good estimates are available for the number of individuals who were
involuntarily sterilized and were still living on February 1, 2015. Board staff
reports that 28 individuals have filed claims since the emergency regulations
became effective November 20, 2015.
Localities Particularly Affected. No locality will be
particularly affected by this proposed regulatory program.
Projected Impact on Employment. These proposed regulatory
changes are unlikely to affect employment in the Commonwealth.
Effects on the Use and Value of Private Property. These
proposed regulatory changes are unlikely to affect the use or value of private
property in the Commonwealth.
Real Estate Development Costs. These proposed regulatory
changes are unlikely to affect real estate development costs in the
Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia,
small business is defined as "a business entity, including its affiliates,
that (i) is independently owned and operated and (ii) employs fewer than 500
full-time employees or has gross annual sales of less than $6 million."
Costs and Other Effects. No small businesses are likely to be
affected by this proposed regulation.
Alternative Method that Minimizes Adverse Impact. No small
businesses will be adversely affected by these proposed regulatory changes.
Businesses. No businesses will be adversely affected by these
proposed regulatory changes.
Localities. Localities in the Commonwealth are unlikely to see
any adverse impacts on account of these proposed regulatory changes.
Other Entities. No other entities are likely to be adversely
affected by these proposed changes.
1 In 1924 these institutions included 1) the Virginia
State Colony for Epileptics and Feebleminded in Lynchburg, Virginia (now the
Central Virginia Training Center), 2) Western State Hospital in Staunton
Virginia, 3) Central State Mental Hospital in Petersburg, Virginia, 4) Eastern
State Hospital in Williamsburg, Virginia and 5) Southwestern State Hospital in
Marion, Virginia. See https://www.uvm.edu/~lkaelber/eugenics/VA/VA.html for more details.
2 Compulsory sterilization is still allowed but in much
narrower circumstances and with much more stringent patient protections. Now, a
compulsory sterilization patient must be unable to give informed consent, in
need of contraception, unable to use any other form of contraception, and
permanently unable to raise a child.
4 The General Assembly appropriated $1.2 million dollars
between the fiscal year 2016 and fiscal year 2017 budgets to pay claims under
this program. If claims exceed that amount, DBHDS will pay claims in the order
they were submitted, retain claims that are not paid and request an additional
appropriation to pay them.
Agency's Response to Economic Impact Analysis: The
agency concurs with the economic impact analysis prepared by the Department of
Planning and Budget.
Pursuant to Item 307 T of Chapter 665 of the 2015 Acts of
Assembly, which 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 regulation establishes (i) eligibility
criteria, (ii) submission of claims, (iii) compensation, (iv) appropriate
documentation for verification, and (v) an administrative process for handling
EUGENICS STERILIZATION COMPENSATION PROGRAM
"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
"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,
"Review panel" means a minimum of three
department staff members who are appointed by the commissioner to make final
determinations that applications for claims deemed complete pursuant to this
chapter meet the criteria for compensation.
"Sterilization" means a medical procedure or
form of birth control that leaves a male or female unable to reproduce or
conceive children and was performed 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
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
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. Claimants shall submit required documentation for proof
1. To establish proof of identity, a copy of one or more of
the following documents preferably bearing a photographic image of the
claimant's face and signature shall be submitted with the application form:
a. A state-issued or United States territory-issued
b. A government-issued identification card.
c. A United States passport.
d. A foreign passport with a United States visa, Form I-94
Arrival/Departure Record, or Form I-94W Nonimmigrant Visa Waiver
e. A United States military card, active or retired member.
f. A United States military dependent's identification
g. A Native American tribal document issued by a tribe
recognized by the United States government.
2. If a claimant's current legal name is different from the
name at the time of sterilization, the claimant shall provide documentation to
prove that he is the same individual who is named on the sterilization records.
Proof may be:
a. A marriage license;
b. A divorce decree;
c. A death certificate;
d. An adoption record;
e. A court order approving a legal change of name; or
f. Other legal document indicating an official name change.
3. Claimants may submit additional documents to establish
proof of identity. The department may deem in its discretion that one or more
documents other than those listed in subdivisions 1 and 2 of this subsection
are sufficient to prove a claimant's identity with satisfactory reliability.
4. At the department's discretion, a crossmatch with a
federal or state government data system may be used to establish a claimant's
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
3. Case summary from the claimant's hospital record
documenting that the involuntary sterilization procedure was performed on the
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
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
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.
A. The department shall screen an application and
accompanying documentation for completeness according to the date and time the
application is received. An application will be considered complete when all
required documents have been received by the department.
B. If the department determines an application is
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. The department shall notify the claimant or his
lawfully authorized representative in writing that the current application is
closed and that a new application may be submitted should the required
documentation become available.
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 verify claimants' 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's review panel 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).
A. Compensation per verified claim shall be $25,000 and
shall be contingent on the availability of funding. All verified claims shall
be compensated in the order in which they are verified.
B. Should funding be exhausted prior to the payment of all
verified claims, the department shall continue to accept and review
applications. Claims verified after funding has been exhausted shall be
maintained by the department according to the date and time the claim's
eligibility was verified. Any such claim shall not be denied but the claimant
shall be notified in writing that the eligibility of his claim for compensation
has been verified, 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 in the order in which they were
verified and maintained by the department pursuant to subsection B of this
NOTICE: The following
form used in administering the regulation was filed by the agency. The form is
not being published; however, online users of this issue of the Virginia
Register of Regulations may click on the name of the form to access it. The
form is also available from the agency contact or may be viewed at the Office
of the Registrar of Regulations, General Assembly Building, 2nd Floor,
Richmond, Virginia 23219.
for Filing a Claim for Compensation for Victims of the 1924 Eugenical
Sterilization Act, VESC Form 1004 (eff. 3/2017)
VA.R. Doc. No. R16-4471; Filed February 27, 2017, 8:40 a.m.