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 scheduled.

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 ruthanne.walker@dbhds.virginia.gov.

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 Also, if an individual has an outdated photo identification card but is no longer physically able to obtain one, the regulation allows the department reasonable flexibility to consider other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 claimant's identity.

• 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 Analysis:

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 Commonwealth.

Small Businesses:

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.

Adverse Impacts:

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.

³ https://www.uvm.edu/~lkaelber/eugenics/VA/VA.html

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.

Summary:

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 claims.

CHAPTER 240
EUGENICS STERILIZATION COMPENSATION 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 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 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. Claimants shall submit required documentation for proof of identity.

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 driver's license.

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 Arrival/Departure Record.

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

f. A United States military dependent's identification card.

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 identity.

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 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).

12VAC35-240-70. Compensation.

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 section.

FORMS (12VAC35-240)

Application for Filing a Claim for Compensation for Victims of the 1924 Eugenical Sterilization Act, VESC Form 1004 (eff. 3/2017)