Proposed Text
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)