SB 591-FN-A - AS INTRODUCED
2024 SESSION
24-3155
11/05
SENATE BILL 591-FN-A
SPONSORS: Sen. Bradley, Dist 3; Sen. Rosenwald, Dist 13; Sen. Soucy, Dist 18; Sen. D'Allesandro, Dist 20; Sen. Birdsell, Dist 19; Sen. Gray, Dist 6; Sen. Carson, Dist 14; Rep. Leishman, Hills. 33; Rep. Packard, Rock. 16; Rep. Wallner, Merr. 19; Rep. Edwards, Rock. 31; Rep. Wilhelm, Hills. 40
COMMITTEE: Judiciary
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ANALYSIS
This bill significantly modifies definitions, claims procedures, and funding relating to the youth development center settlement fund and claims administration.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-3155
11/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Youth Development Claims Administration and Settlement Fund; Modified Definitions, Claims Administration, and Funding. Amend RSA 21-M:11-a to read as follows:
21-M:11-a Youth Development Center Claims Administration and Settlement Fund.
I. In this section:
(a) "Administrator" means an independent, neutral attorney admitted to the practice of law in New Hampshire, chosen in the manner set forth in paragraph III to administer youth development center claims pursuant to this section. The administrator shall have all of the duties and authority granted pursuant to RSA 542, except as otherwise provided in this section.
(b) "AG designee" means one or more individuals within the attorney general's office designated by the attorney general.
(c) "Claim" means a request for compensation related to one or more incidents of sexual abuse and/or [physical] other abuse perpetrated upon a former YDC resident by or at the behest of a member of the YDC staff.
(d) "Claimant" means an individual who has filed a claim.
(e) "Egregious sexual abuse” means sexual abuse that, in the sole discretion of the administrator and in consideration of the factors listed in subparagraph IV(a), is wanton or cruel to such an extent that it is sufficiently in excess of the severity of abuse experienced by most claimants to warrant consideration for additional compensation. The administrator shall take into account the nature, frequency, extent, and severity of the abuse and the claimant’s physical and/or psychological damage.
(f) "Former YDC resident" means an individual who resided at the YDC at any time.
[(f)](g) "Fund" means the YDC settlement fund established in this section.
[(g)](h) "Fact facilitator" means one or more individuals assigned by the administrator to independently investigate a claim.
[(h)] (i) "[Physical] Other abuse" means an incident of conduct that would constitute an offense under RSA 631:1, RSA 631:2, [or] RSA 631:2-a, RSA 631:3, RSA 631:4, or RSA 639:3, and that is not justified under RSA 627:6, unlawful restraint, unlawful strip search, or a common law cause of action for assault or battery[.], or intentional infliction of emotional distress under New Hampshire common law.
[(i)] (j) "Sexual abuse" means an incident of conduct which would constitute an offense under RSA 632-A:2, RSA 632-A:3, RSA 645:1, RSA 644:9, or RSA 632-A:4, or a [common law] cause of action for assault or battery under New Hampshire common law that involves sexual contact or sexual penetration as defined by RSA 632-A:1[.], or a common law cause of action for invasion of privacy by intrusion upon seclusion under New Hampshire common law, or would otherwise constitute sexual abuse under the definition contained in RSA 169-C:3, XXVII-b.
[(j)] (k) ["Unlawful confinement" means placement in isolation as discipline without] "Unlawful restraint" means placement of claimant in isolated confinement, or in restraints, including physical restraints, mechanical restraints, and pharmaceutical restraints without medical necessity or such process as was due under the circumstances[ or under conditions of confinement that were grossly out of proportion to the severity of the conduct giving rise to the discipline, or not as punishment, and not for another legitimate penological goal or purpose] or otherwise in violation of the lawful operative policies and procedures of the YDC, and shall include all placements in isolated confinement or in restraints for unreasonably excessive durations or for reasons other than for legitimate penological purposes, such as for the safety[ or] and security of the [resident or others] YDC, its staff, or other juveniles.
(l) “Unlawful strip search” means any incident where YDC compelled a former YDC resident to remove all or most of his or her clothing for a visual and/or physical inspection of his or her body that was conducted absent a legitimate penological purpose or in violation of the lawful operative policies and procedures of the YDC, and shall include all searches that: (1) were conducted at a time other than upon claimant’s admission to the YDC or return to the YDC following a furlough, and were conducted absent a reasonable suspicion that claimant was concealing contraband, (2) were performed or observed by a staff member of the opposite sex, (3) were not conducted privately, such that other residents and staff were able to observe the strip search.
[(k)](m) "Youth development center" or "YDC" means the youth development center as identified in RSA 621, [or] including its renamed or successor entity, the Sununu Youth Services Center, and any predecessor entity performing the function of housing [adjudicated delinquent] or providing services to children who are the subject of delinquency proceedings, children in need of services proceedings, whether pre- or post-adjudication [detained youth], including the State Industrial School, the Anna Philbrook [School] Center, the Tobey Special Education School [and the Youth Services Center.], as well as the temporary detention facility identified in RSA 621-A as the youth services center and also referred to at times as the youth detention services unit, YDSU, or the ADC.
These definitions shall be applicable to claimants, claims, the claims process, and the fund governed by this section. This section is not intended in any way to expand or limit the rights of individuals or the state under any other state statutory or common law.
II. There is hereby established in the state treasury the YDC settlement fund which shall be kept distinct and separate from all other funds. The fund shall be administered by the attorney general, who shall use the funds for the purpose of administering claims of former YDC residents as defined in this section. The fund shall be nonlapsing and continually appropriated to the department of justice until June 30, 2032, after which date the fund shall lapse to the revenue stabilization reserve account established in RSA 9:13-e, II, unless earlier discontinued by the attorney general, in consultation with the administrator, or as otherwise provided by law. Settlement amounts paid to [former YDC residents] claimants shall be as determined by the process outlined in this chapter and shall be payable upon such terms and conditions as determined by the administrator and accepted by the claimant, subject to the limitations provided for in this section. The attorney general may enter into memoranda of understanding with the judicial branch or any state agency as necessary to compensate them for services performed in furtherance of this chapter. As the need arises, and subject to approval of the joint fiscal committee, the administrator shall have the authority to appoint assistant administrators. In appointing assistant administrators, the administrator shall endeavor to appoint individuals with prior experience in administering or adjudicating child abuse, sexual abuse, and/or mass tort cases. Assistant administrators shall serve at the direction of the administrator and may be removed by the administrator at any time for any reason in the discretion of the administrator. Assistant administrators shall have all power and authority of the administrator except the authority to render any final decision to approve payment.
III. There is further established in the judicial branch a temporary full-time or part-time position known as the youth development center claims administrator, to be appointed by the supreme court. A part-time administrator may maintain a private, unrelated mediation or legal practice apart from the duties as administrator notwithstanding any other provision of rule or law to the contrary. The supreme court shall appoint an administrator agreed to by the attorney general and counsel for claimants. If the attorney general and counsel for claimants are unable to agree upon an administrator, the supreme court shall select the administrator from the candidates submitted to the court by the attorney general and counsel for claimants, not later than 30 days following the court's receipt of the candidates. The attorney general and counsel for claimants shall each submit two candidates, not later than 30 days following the joint fiscal committee's approval of the claim process and guidelines as provided in paragraph IV. The administrator shall receive compensation at no more than the rate of salary of an active superior court justice and shall, if working full-time, receive the same benefits as other non-judicial employees of the judicial branch. If working part-time, the administrator shall receive compensation at no more than the equivalent per diem rate of an active superior court justice, provided that in any calendar year, the administrator shall not receive more in total compensation than that received by an active superior court justice. The judicial branch shall provide the administrator and any necessary support staff with office space. The salary, benefits, and expenses of the administrator, and any necessary support staff, shall be paid from the fund. The administrator shall report to the chief justice of the supreme court or the chief justice's designee for employment-related purposes, but the supreme court shall have no authority to review the administrator's decisions. At such time as the administrator's duties are concluded, or at such time as full-time service by the administrator is no longer needed to carry out the administrator's duties, the supreme court shall either eliminate the administrator's position or reduce it from a full-time to a part-time position as may be appropriate. The supreme court may remove the administrator if, after a request for removal received from the attorney general or claimants' counsel, or upon the court's own motion, the court determines that good cause for removal exists. Once appointed, the administrator shall process claims as provided herein and may settle claims at such amounts as may be agreed upon between the AG designee and each claimant, or at amounts which are determined by the administrator, giving due consideration to the guidelines adopted by the joint fiscal committee as provided in paragraph IV.
IV.(a) As soon as practical following the effective date of this section, the attorney general, after making good faith efforts to reach agreements with claimants' counsel, and with input from the attorney general's victim/witness advocates, shall develop and present to the joint fiscal committee a claims process consistent with this section including the development of claim forms, identification of necessary or helpful documentation, and guidelines for valuing claims for settlement purposes which take into consideration the following factors:
(1) The nature and character of the acts of [physical] other abuse and sexual abuse.
(2) The frequency, duration, and [duration] severity of those acts.
(3) The nature and character of the physical and psychological harm to the claimant that resulted from those acts of sexual and other abuse.
(4) Aggravating and mitigating factors, such as whether [the acts were also accompanied] the claimant was subjected to multiple forms of sexual and other abuse simultaneously, whether the claimant was abused by [unlawful confinement,] multiple abusers simultaneously, the impact of the sexual and other abuse, the impact of the sexual and other abuse on the claimant relative to others similarly situated, the applicable statute of limitations and other potentially available legal defenses if the claims were pursued as litigation, the legal standards in effect at the time of the acts, whether the acts were previously reported to persons in a position of authority, and whether the acts can be corroborated through contemporaneous reports by the claimant to others.
(5) Any other factor that the administrator may [be] deem relevant.
(b) The guidelines may group similar claims by type and suggest a value or range of values for each type of claim. The goal of the guidelines shall be to ensure the fair and uniform valuation of claims so that the claims of similarly situated claimants are valued similarly. The joint fiscal committee shall review and vote to either approve or object to the proposed claims process and guidelines within 30 days of receipt. If the joint fiscal committee votes to object to the proposed claims process and guidelines, the joint fiscal committee shall articulate its reasons for objection in writing and claimants' counsel and the attorney general shall present for approval a revised version of the proposed claims process and guidelines that addresses the joint fiscal committee's concerns. The joint fiscal committee shall approve a claims process and guidelines prior to appointment of an administrator as set forth in paragraph III. Once approved, the guidelines shall be binding on the AG designee and the administrator. The claims process and guidelines may be revised periodically as deemed necessary by the administrator, again with input from claimants' counsel and the attorney general, and with the approval of the joint fiscal committee.
V. For all claims involving both sexual and[ physical] other abuse or sexual abuse only, no individual claimant shall be paid more than $1,500,000 in settlement of all claims in the aggregate. For all claims involving egregious sexual abuse, no individual claimant shall be paid more than $2,500,000 in settlement of all claims. For all claims involving[ physical] other abuse only, no individual claimant shall be paid more than [$150,000]$250,000 in settlement of all [physical] other abuse claims in the aggregate. Claims of isolated confinement may be valued at no more than $300 per day, and no individual claimant shall be paid more than $100,000 in settlement of all incidents of isolated confinement, and said payment shall be subject to, and not in addition to, the limits established hereunder.
VI. Beginning not later than November 1, 2022, the administrator shall publish notice to the public of the establishment of the YDC settlement fund and the opportunity for former YDC residents to file claims. Such notice shall be published in a newspaper of general circulation in every county in the state, at least once a week for at least 2 consecutive weeks. Such notice shall also be published at least once in a newspaper of national circulation. Such notice shall also be published on such social media platforms as are appropriate in the discretion of the administrator for at least 6 consecutive weeks. Additionally, such notice shall be published to the current residents of all New Hampshire correctional facilities by means of posting or other customary means for such facility, shall be made available by the attorney general via press release, and shall be posted on the attorney general's public website. The publication shall constitute conclusive proof in judicial proceedings of the latest date by which all persons, in the exercise of reasonable diligence, could have discovered both their injuries and the causal relationship of their injuries to the acts or omissions of any employees or agents of the state regarding any incident which might have been the subject of a claim, whether or not such a claim was filed.
VII.(a) Any former YDC resident may file a claim. A claim subject to the procedure established in this section may be filed only by the former YDC resident who was personally subject to sexual abuse or [physical] other abuse. No claim shall be filed for collateral injuries or damages suffered by any other person resulting from sexual abuse or [physical] other abuse of the former YDC resident, including claims for loss of consortium or emotional distress suffered by relatives of the former YDC resident. No claim shall be filed by the executor or administrator of a deceased former YDC resident, but a claim may be filed by the guardian or conservator of a living former YDC resident who is incapacitated. Once a claim has been properly filed by a living former YDC resident, the subsequent death of that claimant shall not extinguish the claim.
(b) Claims may be filed beginning January 1, 2023. Claims shall not be accepted after [December 31, 2024] June 30, 2025.
(c) A former YDC resident's participation in this claims process is voluntary and does not affect any rights the claimant may have unless and until the claimant accepts the administrator’s decision on the claim. A former YDC resident who elects not to participate in the claims process, or a claimant who does not accept the administrator’s decision, retains the right to pursue a claim in a judicial or other forum. A former YDC resident is entitled to consult with counsel before deciding whether to participate in the claims process. The administrator shall identify and publish the names of attorneys willing to consult with former YDC residents concerning their decision to file a claim.
(d) This section constitutes the state's offer to resolve completely and finally all of the former YDC resident's claims through the claims process established. By filing a claim, the claimant agrees that he or she will participate in the claims process, and, if the claimant[ requests that] accepts the [administrator decide the claim, agrees to accept the] administrator's determination [of] on the [administrator as] claim, such acceptance shall be the final and binding settlement of all claims in accordance with subparagraph IX(a), even if the claimant does not receive any payment from the fund. The submission of a claim shall constitute an agreement in writing to submit the claim to arbitration as provided in RSA 542:1.
(e) By filing a claim, a claimant waives his or her right to simultaneously seek other or additional monetary relief in any forum from the state of New Hampshire or any of its agents or employees, or from any of its political subdivisions or their agents or employees arising out of or relating to any incidents which are or could have been the subject of a claim, except that the claimant does not waive his or her right to seek or continue to seek relief in any forum from an individual whose direct, personal actions constitute sexual abuse or [physical] other abuse, even if said individual was a state employee at the time of the acts. The administrator shall require a claimant to execute appropriate agreements or motions to stay any pending proceedings related to claims that are or could have been brought under the settlement fund as a condition to processing claims provided that such documents expressly preserve the right to pursue claims against individual perpetrators as described.
(f) Claims shall be submitted under oath. Claimants shall be entitled to be treated with respect and dignity in the presentment of their claims. Claimants who are believed by the administrator to have deliberately submitted false claims may be referred to an appropriate law enforcement agency. Perpetrators of sexual abuse or [physical] other abuse identified by claimants may be referred to an appropriate law enforcement agency by the administrator, but only with the consent and cooperation of the claimant. A claimant shall not be required to cooperate in a criminal investigation as a condition of participating in the claim process.
(g) Claims and all documents and information created in connection with claims shall be confidential, except that matter which was not previously confidential shall not become so by virtue of being submitted in connection with a claim, or except as otherwise provided in this section or in RSA 91-A. This confidentiality is provided in order to protect the privacy of the claimant, and only for that reason. The claimant shall not be bound by this obligation of confidentiality and may waive it at any time.
VIII.(a) [Within 30 days of receipt of a claim, the administrator shall acknowledge its receipt in writing and provide a copy to the AG designee.
(b) Within 60 days of receipt of a claim, the administrator shall review the claim, and indicate whether the claim is considered complete as submitted, or if not, what additional information is required. If the administrator requires additional information, the claimant shall provide that information within 90 days of being notified that additional information is needed, or the claim may be denied as incomplete, provided, that the administrator may grant the claimant an extension of time for good cause shown. The administrator shall also provide any additional documentation received to the AG designee.
(c) Once a claim is considered complete, the AG designee shall have 30 days to indicate to the claimant and the administrator its position regarding the claim. The AG designee may agree or disagree with the claim in whole or in part, and shall indicate whether he or she believes the claim should be referred to a fact facilitator. The administrator may grant the AG designee an extension of time to indicate its position for good cause shown.
(d) Following receipt of the AG designee's position, the administrator may refer a claim to a fact facilitator if, in the administrator's independent judgment, an investigation is needed. The administrator shall direct the investigator as to any particular aspects of the claimant's claim for which the administrator seeks further information or verification, and in such case, the investigation shall be limited to that scope. If the administrator elects not to refer a claim to a fact facilitator, then the administrator shall so notify the AG designee and the claimant, and advise the claimant in writing regarding his or her options: to accept the AG designee's position, to request the administrator decide the claim, or to withdraw his or her claim from further processing. Within 30 days of receiving the position of the AG designee, the claimant shall indicate to the administrator and the AG designee whether he or she agrees with the AG designee's position, whether he or she wishes for the administrator to decide the claim, or whether he or she wishes to withdraw his or her claim from further processing. In the absence of an indication from the claimant, the administrator may assume that the claimant is in agreement with the position of the AG designee.
(e) The purpose of an investigation shall be to verify a claim, as submitted, if possible. The investigation shall, to the greatest extent possible, be conducted in a trauma-informed, respectful, and dignified manner. The investigation may include an interview of the claimant, which may be conducted under oath and recorded. The fact facilitator may also request to review additional records related to the claim. The claimant shall be entitled to the assistance of an advocate in connection with the investigation process who shall be allowed to accompany the claimant during any interview. The claimant shall execute such documents or authorizations as may be necessary to permit the fact facilitator to access records. If the claimant is represented by counsel, counsel shall also be allowed to attend any interview of the claimant. A claim may be denied if a claimant refuses to cooperate with the investigation. Except in extraordinary circumstances, investigations should be completed within 90 days of referral.
(f) The fact facilitator shall present a report to the administrator of his or her findings, which shall include a summary of any interviews conducted or records gathered, a copy of any such supporting documentation, records and recordings. The administrator shall provide a copy of the fact facilitator's report and supporting documentation to the claimant and the AG designee once received.
(g) Within 30 days of receiving the investigation report, the AG designee shall indicate to the claimant and the administrator its updated position regarding the claim, and the administrator shall advise the claimant in writing regarding his or her options: to accept the AG designee's position, to request the administrator decide the claim, or to withdraw his or her claim from further processing.
(h) Within 30 days of receiving the updated position of the AG designee, the claimant shall indicate to the administrator and the AG designee whether he or she agrees with the AG designee's position, whether he or she wishes for the administrator to decide the claim, or whether he or she wishes to withdraw the claim from further processing. In the absence of an indication from the claimant, the administrator may assume that the claimant is in agreement with the position of the AG designee. If the claimant and the AG designee are in agreement regarding the disposition of the claim, the administrator shall make an award consistent with the parties' agreement.
(i) The AG designee and the claimant or claimant's counsel may also engage in discussion separate and apart from their stated claim positions in an effort to resolve their disagreements regarding a claim. Such discussions shall be treated in like fashion to settlement discussions conducted under New Hampshire rules of evidence 408, and the administrator shall not be apprised of efforts to compromise in the event that the claim proceeds to a resolution proceeding.] A claim is filed when a claimant submits a notice of claim form that provides the claimant’s identifying and biographical information, identification of the claimant’s attorney, if applicable, and a summary of the abuse alleged by the claimant. A claimant shall have 60 days from the filing of a notice of claim to file a complete claim form that includes all information the claimant wishes to submit to the administrator and states the amount of compensation sought by claimant. A complete claim form shall indicate whether the claimant requests the opportunity to provide testimony, under oath, in a live resolution proceeding, or whether the claimant would prefer to submit the claim based solely on written submissions.
(b) Within 14 days of receipt of a complete claim, the administrator shall acknowledge its receipt in writing and provide a copy to the AG designee.
(c) Within 30 days of receipt of a complete claim, the administrator shall review the claim, and provide written notice to the claimant and the AG designee indicating whether the claim is considered administratively complete as submitted, or if not, what additional information is required. If the administrator requires additional information, the claimant shall provide that information to the administrator and the AG designee within 60 days of being notified that additional information is needed. Within 14 days of the administrator’s receipt of additional information from the claimant, the administrator shall provide written notice to the claimant and the AG designee that the claim is administratively complete, unless the claim is still missing required information, in which case the administrator may give the claimant a reasonable opportunity to cure.
(d) Within 21 days after the administrator’s notice that a claim is administratively complete, the AG designee may submit to the administrator and to the claimant a written initial position on the claim indicating any areas of disagreement with the claim and explaining the basis for any disagreement, whether the AG designee believes additional records or information are needed, whether the AG designee believes the administrator should refer any aspect of the claim to a fact facilitator, and whether the AG designee believes that the administrator should conduct a live resolution proceeding. If the AG designee submits a written initial position, the claimant may submit a response within 14 days.
(e) The administrator shall issue a notice to the claimant and AG designee regarding the resolution process within 30 days after the administrator’s notice that the claim is administratively complete, unless the AG designee submits a written initial position, in which case the administrator shall issue the notice within 30 days after the claimant’s response is due. The administrator’s notice shall provide the administrator’s decision as to whether further information is needed from claimant, whether to refer the claim or any aspect the claim to a fact facilitator, and whether a live resolution proceeding shall be conducted. If the administrator decides to hold a live resolution proceeding, the administrator will schedule the proceeding to occur within 60 days, except that if the administrator also decides to refer the claim to a fact facilitator, the resolution proceeding will occur no earlier than 30 days after the fact facilitator submits his or her report to the administrator.
(f) The administrator may refer a claim to a fact facilitator if, in the administrator's independent judgment, an investigation is needed. Because the timely processing of claims is an important goal of this section, the administrator should only refer a claim to a fact facilitator in cases where the administrator believes that the claimant’s written submissions and live testimony in a resolution proceeding will not sufficiently answer a question that is material to the administrator’s final determination of the claim. The administrator shall direct the fact facilitator as to any particular aspects of the claimant's claim for which the administrator seeks further information or verification, and in such case, the investigation shall be limited to that scope.
(g) The purpose of an investigation shall be to verify a claim, as submitted, if possible. The investigation shall, to the greatest extent possible, be conducted in a trauma-informed, respectful, and dignified manner. The investigation may include an interview of the claimant, which may be conducted under oath and recorded. The fact facilitator may also request to review additional records related to the claim. The claimant shall be entitled to the assistance of an advocate in connection with the investigation process who shall be allowed to accompany the claimant during any interview. The claimant shall execute such documents or authorizations as may be necessary to permit the fact facilitator to access records. If the claimant is represented by counsel, counsel shall also be allowed to attend any interview of the claimant. A claim may be denied, in whole or in part, if a claimant refuses to cooperate with the investigation. Except in extraordinary circumstances, investigations should be completed within 60 days of referral.
(h) Within 60 days of the referral, the fact facilitator shall present a report to the administrator of his or her findings, which shall include a summary of any interviews conducted or records gathered, a copy of any such supporting documentation, records, and recordings. The administrator shall provide a copy of the fact facilitator's report and supporting documentation to the claimant and the AG designee once received.
(i) While the administrator shall endeavor to process all claims as expeditiously as possible, the administrator is authorized to grant reasonable extensions to all deadlines upon a finding of good cause shown. The administrator may also continue or suspend resolution proceedings as may be reasonably necessary. To the greatest extent possible, claims shall be scheduled for resolution in the order that they are received and determined to be complete, except that the administrator may also give consideration to the time for which litigation may have been pending prior to the filing of a claim as well as any exigent circumstances, such as the ill health of the claimant. After a notice of claim is filed, a claimant's claim cannot be dismissed for a default of any deadline unless and until the claimant is given written notice of such default and 30 days to cure the default.
(j) The AG designee and the claimant or claimant's counsel may also engage in discussions in an effort to resolve the claimant’s claim at any time before the claimant elects to accept the administrator’s decision on the claim. If the claimant and AG designee agree to a settlement, they shall promptly inform the administrator of the settlement and the settlement terms and all further proceedings before the administrator shall be canceled.
IX.(a) When a claimant requests that the [administrator decide the claim, the administrator shall schedule the claim for a resolution proceeding according to the] administrator hold a live resolution proceeding, the proceeding shall be conducted in accordance with the procedures approved by the joint fiscal committee. All resolution proceedings shall take place in the state of New Hampshire, although parties and witnesses may attend by telephone or video conference in the discretion of the administrator.[ To the greatest extent possible, claims shall be scheduled for resolution in the order that they are received and determined to be complete, except that the administrator may also give consideration to the time for which litigation may have been pending prior to the filing of a claim.] When a claimant accepts the administrator's decision on the claim, a claimant fully waives his or her right to seek other or additional monetary relief in any forum from the state of New Hampshire or any of its agents or employees, or from any of its political subdivisions or their agents or employees arising out of or relating to any incidents which are, or could have been the subject of a claim, except that the claimant does not waive his or her right to seek or continue to seek relief in any forum from an individual whose direct, personal actions constitute sexual abuse or [physical] other abuse, even if said individual was a state employee at the time of the acts.[ The administrator shall require a claimant to execute appropriate dismissals, waivers, releases, or other documents as a condition of scheduling a resolution proceeding, provided that such documents expressly preserve the right to pursue claims against individual perpetrators as described.]
(b) The administrator may require such submissions by the parties as the administrator determines, may consider such information as the administrator deems appropriate, and shall resolve claims based upon written submission, through conciliation, by conducting a [hearing] proceeding, or on any other basis determined by the administrator. The claimant shall be entitled to the assistance of an advocate in connection with the resolution process who shall be allowed to accompany the claimant during any[hearing] proceeding or meeting.
(c) Any [hearing] proceeding conducted by the administrator shall be scheduled for not more than 3 hours unless good cause is shown regarding the need for more time and shall be conducted in a victim-centered, trauma informed way, to the greatest extent possible. If the claimant is represented by counsel, counsel shall also be allowed to attend and participate in any [hearing] proceeding.
(d) At any [hearing] proceeding, any witnesses who testify shall be sworn.
(e) Except in extraordinary cases, the administrator shall declare the resolution process closed within 30 days of the resolution proceeding, during which the AG designee may file any written submission related to the claim. The administrator shall issue a written decision to the parties within [30] 14 days of the conclusion of the resolution process. The administrator's decision regarding the claim shall be final and non-appealable, and the provisions of RSA 542:8, RSA 542:9, and RSA 542:10 shall not apply, provided, however, that either the claimant or the AG designee may request the administrator to reconsider a decision on grounds that it contains mathematical mistakes, [or] miscalculations, or a scrivener’s error. Such a request to reconsider a decision must be made within 10 days of the issuance of the administrator’s decision.
X. Upon the rendering of any final decision to approve payment of any part of a claim, whether made by the administrator pursuant to the agreement of the claimant and the AG designee or pursuant to a determination by the administrator following a resolution proceeding, the payment shall be made from the YDC settlement fund established in paragraph II within 30 days of the administrator’s receipt of the claimant’s executed settlement documents in a form acceptable to the AG designee. The administrator shall require a claimant to execute appropriate dismissals, waivers, releases, or other documents as a condition of payment, provided that such documents expressly preserve the right to pursue claims against individual perpetrators as described. The administrator shall be authorized to direct payment of a claim from the YDC settlement fund without being required to seek approval from the AG designee. In addition, the claimant may request, and the administrator shall hold a face-to-face meeting with the claimant where the claimant may speak with the administrator without the AG designee present. The conduct of such a meeting shall not be considered a part of a resolution process and shall [be] not be available if a resolution process is requested until after it is completed.
XI. Any agreement between the claimant and the AG designee and any determination by the administrator may include a determination by the administrator that a claim [should] shall be paid in annual installments over a period of up to 10 years. [A claimant may indicate that he or she does not wish to receive installment payments, and the administrator shall honor the claimant's wishes in this regard.] Additionally, in the case of a lump sum award, a claimant may request that he or she receive the award in the form of periodic payments under a structured settlement that (i) is the subject of a qualified assignment that satisfies the conditions of Internal Revenue Code Section 130 and releases the fund from any liability for the periodic payments; and (ii) is funded by an annuity contract issued by a life insurance company domiciled in the United States, licensed in New Hampshire and rated A or better by A.M. Best. Upon receipt of such a request, the administrator shall accommodate the processing of an award in said fashion. Additionally, the administrator may maintain and provide to claimants a list of licensed structured settlement specialists who have indicated a desire to assist in establishing periodic payments to meet a claimant's anticipated needs.
XII. [If the administrator determines that a shortfall in the YDC settlement fund is likely to occur, the administrator, in consultation with the attorney general, shall request additional funds from the legislature.]
(a) The administrator shall have the responsibility to monitor the balance of the fund and ensure that there are sufficient funds available to pay all claims due either as a lump sum or periodic payments. In making determinations as to whether claims will be paid as a lump sum or periodic payments, the administrator may not authorize more than $75,000,000 in claims to be paid out from the fund in any given fiscal year, provided that the joint fiscal committee and governor and council may, upon the administrator’s request, authorize the administrator to exceed this cap by expenditure of any additional funds available in the fund or by expenditure of funds not otherwise appropriated. The administrator shall have discretion, within available appropriations, to determine whether a claim should be paid as a lump sum or through periodic payments based on a totality of claimant’s circumstances, including, but not limited to, claimant’s health and financial circumstances.
(b) For all claims that are paid in periodic installments, the administrator’s final decision shall include a calculation of interest on all deferred payments. The administrator shall add an interest assessment of 5 percent of the remaining unpaid amount of the award per annum for each year of repayment, which shall be compounded annually. Claimants shall not be required to accept or decline the administrator’s final decision, nor to sign any releases or waivers, until they have had opportunity to review the administrator’s schedule for installment payments, if applicable.
(c) Notwithstanding any other provision of this section, all payments authorized by the administrator are contingent upon the making of sufficient appropriations to the fund or sufficient expenditure authorizations. The governor is authorized to draw a warrant from funds in the treasury not otherwise appropriated to replenish the fund, subject to the approval of the joint fiscal committee and governor and council.
(d) Should the state default on any payment owed pursuant to a final decision by the administrator, whether entered pursuant to agreement of the parties or pursuant to a decision of the administrator, and whether the payment owed is a lump sum or periodic payments, the administrator’s final decision shall convert into a final judgment enforceable in any superior court of New Hampshire, unless the state cures the default by making such installment or lump payment in full within 30 days. Such final judgment shall be the total amount owed by the state to the claimant, less any partial payments made by the state. Claimant shall also be entitled to reimbursement for any reasonable attorneys’ fees and costs incurred to enforce such a judgment. This subparagraph shall apply to payments made within the statutory cap provided for in this section or within any additional expenditure authorizations granted to the administrator by the joint fiscal committee and the governor and council.
XIII. [The costs of administration of the fund and any costs of the attorney general which are outside of the ordinary operational expenses of the department of justice shall be paid from the fund.] If the administrator determines that a shortfall in the YDC settlement fund is likely to occur, the administrator, in consultation with the attorney general, shall request an appropriation of additional funds from the legislature.
XIV. [The administrator may approve all fees and costs of attorneys who represent claimants in proceedings before the administrator. The administrator shall not approve any request of an attorney for fees or costs which are not reasonable. The administrator shall not approve an attorney's fee in excess of 33 1/3 percent of the amount of the award. All costs and attorney's fees paid to a claimant's attorney shall be paid from the amount awarded to the claimant.] To provide additional funds not otherwise appropriated as may be requested by the administrator pursuant to paragraph XII, the state treasurer is hereby authorized to and shall, upon approval of the joint fiscal committee and the governor and council, borrow upon the credit of the state and for said purpose may issue bonds and notes in the name of and on behalf of the state of New Hampshire in accordance with RSA 6-A. Such funds, if approved and borrowed pursuant to this paragraph, are hereby appropriated to the fund.
XV. [The administrator, in consultation with the attorney general, shall quarterly submit a report to the speaker of the house of representatives, the president of the senate, the joint fiscal committee and the governor providing information as to the number and nature of claims made and settled, the amounts requested and paid in settlement to date, the claim amounts pending, an estimate of the likely amounts which will be approved and paid, the administrative costs which have been paid, and an estimate of future administrative costs to be paid. The report shall be structured to protect the privacy and anonymity of the claimants. The attorney general shall also post the report on the department of justice's public website.] The costs of administration of the fund and any costs of the attorney general which are outside of the ordinary operational expenses of the department of justice shall be paid from the fund.
XVI. The administrator may approve all fees and costs of attorneys who represent claimants in proceedings before the administrator. The administrator shall not approve any request of an attorney for fees or costs which are not reasonable. The administrator shall not approve an attorney's fee in excess of 33.33 percent of the amount of the award. All costs and attorney's fees paid to a claimant's attorney shall be paid from the amount awarded to the claimant.
XVII. The administrator, in consultation with the attorney general, shall quarterly submit a report to the speaker of the house of representatives, the president of the senate, the joint fiscal committee and the governor providing information as to the number and nature of claims made and settled, the amounts requested and paid in settlement to date, the claim amounts pending, an estimate of the likely amounts which will be approved and paid, the administrative costs which have been paid, and an estimate of future administrative costs to be paid. The report shall be structured to protect the privacy and anonymity of the claimants. The attorney general shall also post the report on the department of justice's public website.
2 Applicability. Section 1 of this act shall apply to both pending, unresolved claims and claims filed on or after the effective date of this act. No claimant who has previously brought a claim that has been resolved may refile a claim under section 1.
3 Effective Date. This act shall take effect upon its passage.
24-3155
Revised 3/5/24
SB 591-FN-A- FISCAL NOTE
AS INTRODUCED
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund(s) | None
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Expenditures | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Funding Source(s) | General Fund Youth Development Center Settlement Fund | |||||
Appropriations | $0 | Indeterminable | Indeterminable | Indeterminable | ||
Funding Source(s) | General Fund General Obligation Bonds | |||||
• Does this bill provide sufficient funding to cover estimated expenditures? [X] Yes • Does this bill authorize new positions to implement this bill? [X] Yes
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METHODOLOGY:
The Department of Justice states this bill would amend RSA 21-M:11-a, which established a Youth Development Center claims administration and settlement fund. The Department indicates the bill makes three general categories of changes to the current claims administration process. First, the bill expands the scope of conduct covered under the administrative process. Second, the bill increases the caps on settlement awards from the fund, while providing the administrator discretion to award settlements in installment payments. Third, the bill makes changes to the administrative process designed to speed up the process, while preserving the administrator’s flexibility to administer the process.
The Department states the bill would have a negligible fiscal impact on the Department of Justice because it does not amend the provision of RSA 21-M:11-a that provides that “any costs of the Attorney General which are outside of the ordinary operational expenses of the Department of Justice shall be paid from the fund.”
Regarding State appropriations, the bill caps the total payments that can be made from the settlement fund in a given fiscal year at $75 million and allows for awards to be paid over time (up to ten years) in order to remain within that limit. This could necessitate an annual appropriation of up to $75,000,000 for the next ten years. Appropriations would not exceed this annual amount unless the claims administrator seeks authorization from the Fiscal Committee and Governor and Council to exceed the cap in a given fiscal year by expenditure of additional funds available in the settlement fund or by expenditure of funds not otherwise appropriated. The Department notes the total fiscal impact of the bill cannot be determined at this time, as it will depend on, among other things, the number of claims filed, the amount awarded by the Administrator on those claims, and the extent to which payment of any awards is made in a lump sum or through installment payments. The Department states there is no revenue associated with the bill, and the amended tasks related to the bill will have very little to no fiscal impact to the Department of Justice.
The bill authorizes the Claims Administrator, subject to approval of the Joint Fiscal Committee, to appoint Assistant Administrators.
This bill provides that the Joint Fiscal Committee and Governor and Council may, upon the Administrator’s request, authorize the Administrator to exceed the $75 million annual cap by expenditure of any additional funds available in the fund or by the expenditure of funds not otherwise appropriated. The Governor is authorized to draw a warrant from funds in the treasury not otherwise appropriated to replenish the fund, subject to the approval of the Joint Fiscal Committee and Governor and Council.
The bill also provides that the State Treasurer is authorized to and shall, upon approval of the Joint Fiscal Committee and the Governor and Council, borrow upon the credit of the state and for said purpose may issue bonds and notes in the name of and on behalf of the state of New Hampshire in accordance with RSA 6-A. Such funds, if approved and borrowed pursuant to this paragraph, are hereby appropriated to the fund.
AGENCIES CONTACTED:
Department of Justice