Revision: Jan. 19, 2022, 2:19 p.m.
HB 1677 - AS INTRODUCED
2022 SESSION
22-3122
04/10
HOUSE BILL 1677
SPONSORS: Rep. Umberger, Carr. 2; Rep. Wallner, Merr. 10; Rep. Rice, Hills. 37; Rep. Long, Hills. 10; Sen. Bradley, Dist 3
COMMITTEE: Finance
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ANALYSIS
This bill:
I. Establishes a procedure for the administration and resolution of claims of abuse which may have occurred at the youth development center.
II. Creates the youth development center (YDC) settlement fund and makes an appropriation to the fund for the settlement of founded abuse claims.
III. Creates an exemption from the right-to-know law for all records related to the administration and settlement of abuse claims at the youth development center.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
22-3122
04/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Two
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Purpose. The general court hereby finds that the attorney general's investigation into abuse which may have occurred at New Hampshire's youth development center in prior decades has identified a population of New Hampshire citizens with potential claims against the state. The purpose of this act is to create a vehicle for the efficient and fair resolution of those claims.
2 New Section; Department of Justice; Youth Development Center Claims Administration and Settlement Fund. Amend RSA 21-M by inserting after section 11 the following new section:
21-M:11-a Youth Development Center Claims Administration and Settlement Fund.
I. In this section:
(a) "Administrator" means the attorney general or one or more individuals within the department of justice designated by the attorney general to administer the YDC settlement fund pursuant to this section.
(b) "Arbitrator" means an attorney admitted to the practice of law in New Hampshire selected by the administrator and the claimant, or appointed pursuant to RSA 542, for the purpose of resolving claims not settled by agreement of the administrator and the claimant. The arbitrator shall have all of the duties and authority granted pursuant to RSA 542, except as otherwise provided in this section.
(c) "Claim" means a request for compensation related to one or more incidents of sexual 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) "Former YDC resident" means an individual who resided at the YDC at any time on or after January 1, 1980.
(f) "Fund" means the YDC settlement fund established in this section.
(g) "Investigator" means one or more individuals assigned by the administrator to independently investigate a claim.
(h) "Physical abuse" means conduct that would constitute an offense under RSA 631:1, RSA 631:2, or RSA 631:2-a, and that is not justified under RSA 627:6.
(i) "Sexual abuse" means conduct which would constitute an offense under RSA 632-A:2, I(n), RSA 632-A:3, IV, or RSA 632-A:4, III.
(j) "Unlawful confinement" means placement in isolation as discipline without the requisite due 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 such as the safety or security of the resident or others.
(k) "Youth development center" or "YDC" means the youth development center as identified in RSA 621, or its renamed or successor entity.
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 administrator who shall use the funds for the purpose of administering and settling claims of former YDC residents as defined in this section. The fund shall be nonlapsing and continually appropriated to the administrator until June 30, 2032, after which date the fund shall lapse to the general fund, unless earlier discontinued by the administrator, or as otherwise provided by law.
III. The administrator may settle claims at such amounts as may be agreed upon between the administrator and each claimant, or at amounts which are determined by the arbitrator, giving due consideration to the nature and severity of the incidents giving rise to the claim and to settlement amounts in comparable cases. The administrator, or arbitrator if appropriate, shall consider the following factors:
(a) The nature and character of the acts.
(b) The frequency and duration of the acts.
(c) Whether the acts were also accompanied by physical abuse and whether the acts were also accompanied by unlawful confinement.
(d) Any other factor that the administrator or arbitrator may deem relevant.
IV. The administrator shall adopt guidelines for valuing claims for settlement purposes which take into consideration the factors in paragraph III. The guidelines may group similar claims by type and suggest a value or range of values for each type of claim. The guidelines shall be non-binding on the administrator or arbitrator and may be revised periodically as deemed necessary by the administrator.
V. No individual claimant shall be paid more than $1,500,000 in settlement of all claims.
VI. Beginning not later than September 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. 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. No claim shall be filed for collateral injuries or damages suffered by any other person resulting from sexual 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.
(b) The administrator may develop and require the use of a claim form for this purpose, and may identify other documentation and materials to be submitted in support of each claim.
(c) Claims may be filed beginning October 1, 2022. Claims shall not be accepted after September 30, 2023.
(d) Claims shall be submitted under oath. Claimants who are believed to have submitted false claims may be referred by the administrator to an appropriate law enforcement agency.
(e) By filing a claim, the claimant agrees that he or she will accept the determination of the administrator or the arbitrator as final and binding whether or not the claimant receives any payment from the fund. If the appointment of an arbitrator is necessary, the submission of a claim shall constitute an agreement in writing to submit the claim to arbitration as provided in RSA 542:1. After submitting a claim, a claimant 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. The administrator may require a claimant to execute appropriate dismissals, waivers, releases, or other documents as a condition to processing claims or to delivering payment from the fund.
VIII.(a) Within 90 days of receipt of a claim, the administrator shall acknowledge its receipt in writing, 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 shall be denied as incomplete, provided, that the administrator may grant the claimant an extension of time for good cause shown. Once a claim is considered complete, the administrator may approve it in whole or in part, or deny it, or may refer the claim to an investigator.
(b) 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 manner. The investigation may include an interview of the claimant, which may be conducted under oath and recorded. The investigator may also request to review additional records related to the claim. The claimant shall execute such documents or authorizations as may be necessary to permit the investigator to access records. If the claimant is represented by counsel, counsel shall be allowed to attend any interview of the claimant. A claim may be denied if a claimant declines to cooperate with the investigation. Except in extraordinary circumstances, investigations should be completed within 90 days of referral.
(c) The investigator shall present a report to the administrator which shall include a summary of any interviews conducted or records gathered, a copy of any such supporting documentation, records and recordings, and any conclusions or recommendations of the investigator. Following receipt of the investigation report, the administrator shall notify the claimant whether the claim is approved in whole or in part, or denied.
(d) A claimant shall have 30 days from the date of the administrator's decision partially approving or denying a claim in whole or in part to challenge the decision. A decision may be challenged by notifying the administrator in writing that the claimant wishes to have the claim further considered by an arbitrator. A decision that is not challenged within 30 days of the date issued shall be final.
IX.(a) When a claimant challenges the decision of the administrator, the administrator shall submit the challenged claim to an arbitrator within 60 days of the date of the claimant's challenge. All arbitrations shall take place in the state of New Hampshire.
(b) The administrator and the claimant shall each propose the name of one or more attorneys to serve as arbitrator. If an arbitrator cannot be agreed upon, the claimant shall petition the Merrimack county superior court for appointment of an arbitrator pursuant to RSA 542:4.
(c) Once an arbitrator is appointed, the administrator shall provide the arbitrator with the claim, including all supporting documentation submitted, any investigation report, and the administrator's decision. The arbitrator shall schedule a hearing within 30 days and provide notice of same to the parties. The hearing shall be scheduled for not more than 3 hours. The arbitrator may order the parties to make additional submissions prior to the hearing.
(d) At the arbitration hearing, the parties may present additional evidence and witnesses, who shall be sworn, and may present arguments as the arbitrator deems appropriate.
(e) If the arbitrator finds the administrator's decision to be fair and just, it shall be upheld. Otherwise, the arbitrator shall issue a new decision regarding the claim, and may approve the claim in whole or in part, or deny it. The arbitrator shall issue a written decision to the parties within 30 days of the hearing. The arbitrator'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.
X. Upon the rendering of any final decision to approve payment of any part of a claim, whether made by the administrator or the arbitrator, the payment shall be made from the YDC settlement fund established in paragraph II. Any claim may be paid in equal annual installments over a period of up to 10 years. If the administrator determines that a shortfall in the YDC settlement fund is likely to occur, the administrator may request additional funds from the legislature.
XI. Any costs of administration of the fund which are outside of the ordinary operational expenses of the department of justice shall be paid from the fund. One-half of the fees and expenses of the arbitrator shall also be paid from the fund. The other half of the fees and expenses of the arbitrator shall be borne by the claimant. At the claimant's request, the administrator may advance the claimant's share of the fees and expenses of the arbitrator from the fund, to be charged against future payment of the claim. Repayment of costs so advanced shall receive priority over payment to a claimant.
XII. The administrator or arbitrator may approve all fees and costs of attorneys who represent claimants in proceedings before the administrator or arbitrator. The administrator or arbitrator shall not approve any request of an attorney for fees or costs which are not reasonable. In the absence of exceptional circumstances, the administrator or arbitrator shall not approve an attorney's fee in excess of 25 percent of the amount of the award for any claim that is resolved without the need for arbitration, and shall not approve an attorney's fee in excess of 33 1/3 percent of the amount of the award for any claim that is resolved through arbitration. All costs and attorney's fees paid to a claimant's attorney shall be paid from the amount awarded to the claimant.
XIII. The administrator shall annually submit a report to the speaker of the house of representatives, the president of the senate, and the governor providing information as to the number 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 and arbitration costs which have been paid, and an estimate of future administrative costs and arbitration costs to be paid. The report shall be structured to protect the privacy and anonymity of the claimants. The administrator shall also post the report on the department of justice's public website.
3 New Paragraph; Access to Governmental Records and Meetings; Exemptions. Amend RSA 91-A:5 by inserting after paragraph XII the following new paragraph:
XIII. Records of the youth development center claims administration and the YDC settlement fund pursuant to RSA 21-M:11-a.
4 Appropriation. The sum of $100,000,000 for the biennium ending June 30, 2023, is appropriated to the YDC settlement fund established in RSA 21-M:11-a, II for the purpose of administering and settling claims as provided in RSA 21-M:11-a. The appropriation shall be nonlapsing, provided that any moneys in the YDC settlement fund not expended as of June 30, 2032 shall lapse to the general fund, unless the fund is earlier terminated by the administrator, or as otherwise provided by law. The governor is authorized to draw a warrant for said sum out of any money in the treasury not otherwise appropriated.
5 Effective Date. This act shall take effect September 1, 2022.
22-3122
Revised 1/19/22
HB 1677-FN- FISCAL NOTE
AS INTRODUCED
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
STATE: | FY 2022 | FY 2023 | FY 2024 | FY 2025 |
Appropriation | $0 | $100,000,000 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | $0 | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
The Department of Justice was contacted for a fiscal note worksheet on December 22, 2021, which it has not provided as of January 19, 2022.
METHODOLOGY:
This bill creates a dedicated, non-lapsing fund, administered by the New Hampshire Department of Justice (DOJ), to address claims of abuse at the youth development center from 1980 to the present. The bill directs the DOJ to manage the voluntary claims settlement process and pay for the administration of this process from the dedicated fund. All claims must be filed between October 1, 2022 and September 30, 2023. In order to pay for the administration and settlement of claims, the bill makes a non-lapsing general fund appropriation of $100 million for the biennium ending June 30, 2023.
The Department of Health and Human Services (DHHS) notes that since the DOJ has complete authority over the settlement process, there is no fiscal impact to DHHS as a result of the administration of the fund or the payout of settlement. However, as the bill proposes a relatively short time line for investigation and resolution of the potentially hundreds of claims that may be filed, DHHS anticipates that the fiscal impact on the agency’s Division for Children, Youth and Families (DCYF) will be substantial. Specifically, by stipulating that investigations be completed within 90 days, the bill may require significant DCYF staff time to do the following: (1) participate in investigations, (2) produce electronic and paper records, (3) and prepare for and participate in interviews and hearings. DHHS assumes that this process will result in the need for additional staff, but that the number of such staff is indeterminable because the Department is unable to predict either the number of former youth who will file claims or the complexity of said claims.
AGENCIES CONTACTED:
Department of Health and Human Services and Department of Justice