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Protocol

 

ARCHDIOCESE OF NEW YORK

INDEPENDENT RECONCILIATION AND COMPENSATION PROGRAM (“IRCP”)

ADDRESSING CLAIMS OF CLERGY SEXUAL ABUSE OF MINORS

 

March 1, 2017

 

PHASE II PROTOCOL

 

FOR

Compensation of Certain Individual Claims of Clergy Sexual Abuse of Minors

 

I.                    PURPOSE

This Phase II Independent Reconciliation and Compensation Program (the “Phase II IRCP”) follows the completion of the claim submission process of Phase I of the Reconciliation and Compensation Program previously implemented, and supplements initiatives already undertaken by the Archdiocese of New York (the “Archdiocese”) to address the problem of sexual abuse of minors alleged against clergy of the Archdiocese.   The Phase II IRCP is the continuation of a program designed to compensate eligible victims of abuse[1]

The Archdiocese invites individuals to submit complaints alleging sexual abuse by clergy of the Archdiocese, past or present, that were not previously reported to the Archdiocese.  This Protocol outlines the eligibility criteria requirements and the process for these individuals to submit and resolve claims alleging such sexual abuse. 

The effective date of this Phase II Protocol is March 1, 2017.  Individuals who wish to participate in Phase II of the IRCP Program may submit a completed Claim Form providing the Administrators all of the requested information about the claimant and the circumstances of the alleged abuse.  Such information will be maintained in strict confidence in conjunction with Phase II of this Program except that the complaint will be forwarded to the local office of the District Attorney by the Claimant and the Archdiocese for initial review of the allegations.   In addition, the Archdiocese will have the matter investigated by outside investigators and examined by the Archdiocese Lay Review Board.  Individuals who have a complaint against clergy of the Archdiocese of New York who have previously registered with the IRCP Program will be sent Program materials including a copy of this Protocol, the Claim Form and Frequently Asked Questions.  All other interested individuals who allege abuse by clergy of the Archdiocese of New York may request the Program materials by registering on the Program website at nyarchdiocese-IRCPSettlementProgram.com or by calling the Program Call Center at 866 913-3210.

A.      Administrators

 

The Archdiocese has asked Kenneth R. Feinberg and Camille Biros (the “Administrators”) to design, implement and administer Phase II of the IRCP Program for the submission, evaluation, and settlement of individual claims of sexual abuse of a minor. This resulting Protocol begins the second phase of a compensation program under which the independent Administrators will process and evaluate claims to determine:  a) whether the submitted claim meets the eligibility requirements and, if so, b) the compensation to be paid such eligible claimant.    

 

Participation in the IRCP is completely voluntary and does not affect any rights the claimant may have until and unless the claimant accepts the compensation amount and signs a Release after required consultation with a lawyer.  If you are not represented by an attorney, before signing the Release the IRCP will provide pro bono legal counseling to you for the sole purpose of advising you concerning the language and binding nature of the Release.  

 

B.       Independent Oversight Committee

 

Pursuant to this Protocol, the Archdiocese established an Independent Oversight Committee of three members to oversee the implementation and administration of this Phase II of the Independent Reconciliation and Compensation Program.  The Independent Oversight Committee will work closely with the Administrators during their administration of this Program.  The Independent Oversight Committee has received and approved this Protocol.  The Administrators shall provide periodic summary reports to the Independent Oversight Committee which will include:  the number of claims received, a summary of the facts of each claim and the eligibility determinations for each received claim, the amounts offered each claimant and whether or not the compensation offered the claimant is accepted or rejected.  Periodically, and at the request of the Committee, the Administrators shall meet with the Committee to discuss certain findings and determinations.  The Committee may request to review the supporting documentation for a particular claimant.  The Committee will also report to the Archdiocese as to implementation and administration of the IRCP.  However, the Committee has no authority to modify or reject any individual claim determinations governing eligibility and compensation rendered by the independent Administrators or to act as an appeal board for any claimant.    

 

C.       Approach

The following non-exclusive principles apply to the operation of this Protocol.

·         The Administrators will evaluate claims submitted with the required documentation in a prompt and fair manner.

·         The Program Administrators are independent.  Consistent with the terms and conditions of this Protocol, any final decision rendered by the Administrators pertaining to an individual claim will be fully binding on the Archdiocese.  The Archdiocese has no authority to reject any final decisions rendered by the Administrators. 

·         Acceptance of payment from the Administrators will require the claimant to execute a full Release of liability, as discussed below. 

·         The Compensation Program is administered by Mr. Feinberg and Ms. Biros, neutral fund Administrators responsible for all decisions relating to the administration, processing, and evaluation of individual claims submitted to the Administrators.

 

II.                  ELIGIBILITY REQUIREMENTS

 

The only claimants who may submit claims to the Administrators during Phase II are:  a) individuals who allege sexual abuse committed by clergy of the Archdiocese of New York, or b) the Legal Representative (as defined below) of such claimants.  The “Legal Representative” of the individual claimant shall mean:  (1) in the case of a minor, a parent or legal guardian authorized under law to serve as a minor’s legal representative; (2) in the case of a deceased individual claimant, the spouse, descendant, relative or other person who is authorized by law to serve as the decedent’s legal representative; or (3) in the case of an incompetent or legally incapacitated individual claimant, a person who has submitted proof to the Administrators that such person has been duly appointed legal representative in accordance with applicable law.  

For an individual claimant to be eligible for compensation under this Phase II Protocol (“Eligible Claimants”), the following eligibility requirements must be met:

·         The claim of clergy sexual abuse must be directed against clergy of the New York Archdiocese only.  Claims for sexual abuse directed against a member of a religious order or clergy of any other archdiocese are not eligible for compensation under this Program.

·         The individual claimant must not have previously entered into a settlement agreement resolving the claim of clergy sexual abuse against a member of the clergy  of the Archdiocese.  Such a claimant is ineligible pursuant to this Protocol.

·         In appropriate cases, such individual complaint may have already been reported by the claimant to the appropriate Office of the District Attorney for review.  If not, submission of all individual claims to the District Attorney is a prerequisite for compensation pursuant to this Program.  However, a finding of criminal liability by the District Attorney is not required as a precondition for compensation pursuant to this Program. 

·         The Administrators must find that the facts and circumstances of the claim of clergy sexual abuse demonstrate that the allegations are credible and claimants provide sufficient corroboration and proof to justify the payment of compensation.  Examples of the types of corroborating documentation required are:  medical records for counseling or psychological services for issues associated with the abuse; contemporaneous correspondence or communication (letters, emails, etc.) with family, friends, the Church or Parish, legal authorities (including findings and conclusions reached by the appropriate Office of the District Attorney), etc., regarding the abuse.  The lack of sufficient corroboration and proof of the allegations of clergy sexual abuse will be taken into account by the Administrators in determining the credibility of the claim and eligibility  for compensation.

 

·         The Administrators must determine, in their sole discretion, after reviewing all of the information submitted as required herein, that the alleged clergy sexual abuse of a minor is likely to have occurred.    

 

Whether or not an individual claimant is determined by the Administrators to be eligible for compensation pursuant to this Protocol, each individual claimant may voluntarily request and receive pastoral counseling, and/or psychological counseling at the option of the individual claimant.  Such counseling will be paid by the Archdiocese.  

 

III.                METHODOLOGIES FOR CALCULATING COMPENSATION

 

A.      Acceptance or Rejection

 

 Among the factors the Administrators will consider in evaluating individual claims are the following: 

·         The extent to which the individual claimant is able to document and corroborate the nature, frequency and time of the alleged sexual abuse.  Unsupported  allegations of alleged sexual abuse without sufficient corroboration and proof weigh against  acceptance of the claim. 

·         Whether or not the allegations of sexual abuse are consistent with allegations made by other individuals concerning known recidivist perpetrators. 

·         Whether or not, in evaluating all of the facts and circumstances supporting the allegations, i.e., the context of the claim, there is sufficient circumstantial evidence to find eligibility and provide a designated level of compensation.

·         Whether or not contemporaneous notification of the alleged abuse was made by the individual claimant to church officials, law enforcement authorities, parents, friends and/or others. 

·         Whether or not there exists medical or counseling records relevant to the alleged abuse.  

·         Whether or not there exists any information and/or pertinent findings offered by the appropriate Office of the District Attorney.

·         Whether or not the Administrators find the claims of the individual to be credible after a complete review of all relevant documentation provided by the claimant, the Archdiocese, and any doctors and psychiatrists retained by the individual claimant.

B.      Amount of Compensation

Among the factors the Administrators will consider in determining the amount of compensation to be paid to any Eligible Claimant, are the following:

 

·         The nature, extent and frequency of the sexual abuse alleged by the individual claimant.  

·         Whether or not the individual claimant alleges aggravating circumstances e.g., age of the claimant, severity of abuse,  location of abuse, threats of physical harm and/or retaliation, significant, verifiable and life-altering psychological damage, etc.

·         The credibility of the claimant based upon all of the facts and circumstances.

 

Pursuant to this Protocol, the Administrators – in their sole discretion – shall determine the appropriate compensation to be offered each eligible individual claimant. 

 

C.                  DOCUMENTATION REQUIREMENTS

 

All individuals submitting a claim pursuant to this Protocol must submit a completed Claim Form as provided by the Administrators.  Each claimant must submit the documentation requested on the Claim Form, and any other corroborating information sufficient both to substantiate the Claim and satisfy Protocol requirements, including eligibility requirements, and to allow the Administrators to review, process, and evaluate the submitted claim.

 

 If the claim is being presented by an attorney or a legal representative, then the attorney or legal representative will be responsible for submitting the necessary documentation relating to the represented claimant and the Administrators will communicate solely with the attorney or legal representative. If so represented, claimants must provide the Administrators with a retention agreement signed by both the claimant and the attorney.  Legal representatives must supply proof of representative capacity – such as a power of attorney, guardianship, appointment as guardian or attorney ad litem, custodial parent, or the equivalent – as is required to establish authority to act in a representative capacity under the law of the resident state of the decedent, minor, or incompetent or legally incapacitated individual.

 

Specific documentation and proof requirements will be defined on the Claim Form.  Additional documentation may be required at the discretion of the Administrators.

 

D.                  FILING FOR COMPENSATION

 

A.      Equal Access and Fair Adjudications in the Claims Process

 

All claimants will be treated with respect, dignity, and fairness, without regard to race, color, sexual orientation, national origin, religion, gender, or disability.  The Administrators will manage the process so that all claimants can equally access the Program’s claim submission process so that claims will be adjudicated fairly. Individuals with disabilities will be given the opportunity to effectively communicate their claims and to request special process accommodations to the Administrators.  Accommodations will be made for individuals with language barriers to ensure that they will have meaningful access to the process and to the Program. 

 

B.      Process and Procedures

 

Individual claimants must file a pertinent Claim Form.  This Phase II Protocol will be available on the Program website to all interested parties beginning on March 1, 2017, the effective date of this Protocol.  Claim Forms and other relevant Program information will be sent to each potentially eligible claimant (both English and Spanish versions) who previously registered with the Phase II Program alleging abuse by clergy of the Archdiocese.  The Claim Forms should be completed and submitted to the Administrators postmarked no later than July 31, 2017.  Individuals who have not previously registered for Phase II who believe they may have a valid Phase II claim should register via the Program website to request a copy of the Claim Form and other relevant Program materials.  Questions regarding the completion of the Claim Form should be sent via email to the Administrators.  (Contact information will be provided on the Claim Form and on the Program’s website.)  The Administrators will maintain and make available to claimants a list of Frequently Asked Questions and responses.   Claimants will mail the completed Claim Forms via overnight courier (a pre-paid courier voucher will be included in each Claimant’s packet) to the Program Administrators at the following address:

 

                                The Law Offices of Kenneth R. Feinberg, PC

                                1455 Pennsylvania Avenue, N.W., Suite 390

                                Washington, DC 20004

 

In order for the claim to be eligible for payment, all claimants must voluntarily consent to participate in the Program and agree to be bound by its terms, but shall not release any legal rights until such compensation is determined, the claimant is notified, the claimant accepts the compensation and executes a binding Release.  The Administrators will work directly with all claimants as reasonably requested to make sure that all claims are submitted by the July 31, 2017 deadline. 

The Administrators cannot provide tax or legal advice to those receiving payments pursuant to this Protocol.  The Administrators recommend consultation with a tax advisor concerning any questions regarding tax liability for payments pursuant to this Protocol.  

 

C.      Due Process Procedures and the Right to be Heard

 

Individual claimants or officials of the Archdiocese may request a face-to-face personal meeting or telephone meeting with the Administrators prior to their making a determination pursuant to this Protocol.  At any time during this process, Individual claimants may also request to meet with a Victim’s Assistance Coordinator of the Archdiocese.  Both the individual claimant and the Archdiocese reserve the right to submit to the Administrators any information deemed relevant to the Administrators’ evaluation and determination of any individual claim before the final processing, determination and calculation of the claim.  Meetings will be scheduled at mutually convenient times and locations.  Such a requested meeting will not serve to alter the eligibility, process, or documentation requirements set forth in this Protocol.  Requests to meet with the Administrators should be sent by email to the Administrators.  (Contact information is on the Claim Form and on the Program website.)  In addition, the Administrators may request a meeting with a claimant or his or her representative at a reasonable mutually convenient location. 

 

D.      Incomplete or Deficient Claims

 

If a claimant submits an incomplete or deficient claim, e.g., the claimant failed to include required documentation or failed to sign the Claim Form, a deficiency notification will be sent to the claimant and a representative of the Program will informally work with the claimant in an effort to cure any such deficiencies. 

 

E.       Confidential Notification of Program Decision

 

The Administrators will confidentially send the claimant the following in writing: 

 

1.       The Administrators’ decision regarding the claim.

2.       The settlement amount offered pursuant to this Protocol; and

3.       A Release to be signed by the claimant if the claimant accepts the offered settlement. 

 

Settlement offers pursuant to this Protocol shall be valid for 60 days, after which they are null and void. 

 

F.       Payment

 

Payments will be issued by the Administrators following the final processing of an Eligible Claimant’s Claim Form and any requested due process hearing.  The Administrators will authorize the payment, by check or electronic funds transfer, to each Eligible Claimant.  Checks will be sent to claimants by the Administrators via overnight courier service. 

 

E.                   PRIVACY

 

Pursuant to this Protocol, this entire Phase II Independent Reconciliation and Compensation Program is deemed to be confidential.  By filing a claim with the IRCP, the claimant and his or her representative agree that information submitted by a claimant and the Archdiocese pursuant to this Program will be used and disclosed only for the following purposes:

 

1.       Processing the claimant’s claim for compensation.

2.       Administering the Program, including the prevention of fraud.

3.       The protection of children under the Safe Environment Program.

 

All confidentiality requirements are subject to law, regulation or judicial process.

 

Participating Claimants may - - at their voluntary and sole option - - disclose such information regarding the claims process and/or the compensation determination of the claim and any other information pertaining to such claim.

 

F.                   QUALITY CONTROL PROCEDURES

 

A.      Verification Procedures

 

For the purpose of detecting and preventing the payment of fraudulent claims, and for the purpose of assuring accurate and appropriate payments to claimants, the Administrators will implement procedures to:

 

1.                   Verify and authenticate claims.

2.                   Analyze claim submissions to detect inconsistencies, irregularities, and duplication including whether the Claimant has provided sufficient corroboration and proof.

 

B.      Quality Control

 

The Administrators shall institute all necessary measures designed to evaluate claims review procedures, the accuracy of submissions and the accuracy of payments. 

 

C.      False or Fraudulent Claims

 

Each individual claimant will sign the Claim Form at the time of submission, stating that the claimant certifies – under threat of perjury – that the information provided in the Claim Form is true and accurate to the best of the claimant’s knowledge, and that the claimant understands that false statements or claims made in connection with such submission may result in fines, imprisonment, and/or any other remedy available by law.  Suspicious claims will be forwarded to federal, state, and local law enforcement agencies for possible investigation and prosecution. 

 

G.                  RELEASE

A.  Release

 

In order for the claim to be eligible for payment, all claimants must voluntarily consent to participate in the Compensation Program and agree to be bound by its terms, including all requirements pertaining to privacy and confidentiality.  No such Agreement will be enforceable until the claimant is made aware of the settlement amount.  Until a Final Release is executed, each individual claimant retains all rights under the law. 

By submitting a claim under this Protocol, a claimant is seeking to resolve all claims against all responsible parties relating to allegations of sexual abuse involving the Archdiocese of New York.  If a claimant chooses to accept a final payment pursuant to this Protocol, the claimant will be required to sign a full Release, in a form satisfactory to the Archdiocese, of all past and future claims against any party relating to such allegations of sexual abuse.  Before signing such a Release, the individual claimant will be required to consult with an attorney selected by the claimant, or if the claimant so requests, the Administrators shall provide an attorney to offer free pro bono legal counseling to the claimant for the sole purpose of advising the claimant concerning the language and binding nature of the Release. The Release will waive any rights the claimant or his/her heirs, descendants, legatees and beneficiaries may have against the Archdiocese of New York or any potentially responsible party to assert any claims relating to such allegations of sexual abuse, to file an individual legal action relating to such allegations, or to participate in any legal action associated with such allegations.



[1] Recognizing that sexual abuse of a minor is a horrific crime, since 2002, and the adoption of the Bishops Charter for the Protection of Children and Young People, the Archdiocese has implemented a number of safeguards and procedures designed to keep children safe.  For example, any cleric against whom an allegation of sexual abuse of a minor is substantiated – no matter when the abuse occurred – is permanently removed from ministry.  The Archdiocese advises every victim of such clergy abuse to immediately report the abuse to the appropriate district attorney’s office; the Archdiocese likewise reports allegations of such abuse to the appropriate district attorney.  The Archdiocese offers both pastoral and psychological counseling to victims of clergy abuse.  The Archdiocese has also developed a robust and dedicated safe environment program which has conducted background checks on employees and volunteers and has provided mandatory safe environment training to anyone who works with children.  Most recently the safe environment program has hired former police officers to visit each parish and school to promote and guarantee a safe environment.   This Phase II Independent Reconciliation and Compensation Program is designed to work in consort with these other safeguards and programs of the Archdiocese and follows the earlier implemented Phase I IRCP Program which compensated eligible claimants who had previously submitted complaints of sexual abuse to the Archdiocese of New York.