Chapter 29 - Sexual Assault

Part 3 - Professional Services

3-29.1  INTRODUCTION

1. Purpose.  The purpose of this chapter is to establish the requirements for care following sexual assault at Indian Health Service (IHS) hospitals, health centers, and health stations (hereafter referred to as facilities).
2. Scope.  The scope of this chapter is for patients 18 and older who present for sexual assault services at IHS facilities.

   NOTE:  For children age 17 and under who present with suspicion of sexual assault and abuse refer to the existing child maltreatment policy and the mandated reporting requirement located at 42 United States Code (U.S.C.) § 13031.

3. Background.  This policy was developed in response to the high rates of sexual violence among American Indians and Alaska Natives and is based on the Department of Justice's A National Protocol for Sexual Assault Medical Forensic Examinations: Adults/Adolescents, Second Edition, April 2013.
4. Authorities
   1. Indian Law Enforcement Reform Act, 25 U.S.C. § 2801 et seq.
   2. Tribal Law and Order Act of 2010, Public Law 111-211
   3. Indian Health Care Improvement Act, 25 U.S.C. § 1601 et seq.
   4. Snyder Act, 25 U.S.C. §13
   5. Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd.
   6. U.S. Department of Justice/National Institute of Justice (NIJ)
      National Best Practices for Sexual Assault Kits; NIJ 2017Exit Disclaimer: You Are Leaving www.ihs.gov 
   7. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rule, 45 CFR Parts 160 and 164
   8. U.S. Department of Justice National Training Standards for Sexual Assault Medical Forensic ExaminationsExit Disclaimer: You Are Leaving www.ihs.gov 
5. Policy.  It is the policy of the IHS that:
   1. All facilities shall provide patients 18 and older who present with a report of sexual assault with access to a sexual assault medical forensic examination, either onsite or by referral (within a two hour drive time, when feasible);
   2. All patients receive timely, high-quality sexual assault services that are patient-centered and culturally sensitive using a trauma-informed care approach to promote healing, minimize trauma, and prevent retraumatization;
   3. Patients shall not be required to report the sexual assault to law enforcement in order to have access to a sexual assault medical forensic examination, or to have evidence collected;
   4. All facilities participate in a coordinated community response to sexual assault; and
   5. If patients are transferred offsite for services, all transfers must comply with the EMTALA, 42 U.S.C. § 1395dd.
6. Definitions.
   1. Chain of Custody.  Chain of custody is the preservation of physical evidence from the time of collection until the time that it is presented as evidence at trial.
   2. Coordinated Community Response.  A coordinated community response is a collective multidisciplinary response to victims that is appropriate, streamlined, and as comprehensive as possible.  This coordinated effort may be called a sexual assault response team, but may also have other names.
   3. Patient-Centered Care.  Patient-centered care as used in this policy recognizes that sexual assault victims are central in the decision making processes of the medical forensic examination, and they deserve timely, compassionate, respectful, and appropriate care.
   4. Sexual Assault.  Sexual assault refers to a range of behaviors, including but not limited to, a completed nonconsensual sex act, an attempted nonconsensual sex act, and/or abusive sexual contact. Sexual assault includes any sexual act or behavior that occurs when the victim does not or cannot consent.  Lack of consent may be inferred when a perpetrator uses force, threat of force, or coercion; or when the victim is asleep, incapacitated, unconscious, or physically or legally incapable of consent.  Victims of sexual assault may or may not know the perpetrator(s), and/or may be involved in a marital or dating relationship with the perpetrator.
   5. Sexual Assault Evidence Collection Kit.  The sexual assault evidence collection kit includes materials used to collect forensic evidence during the medical forensic examination and aftercare information.
   6. Sexual Assault Examiner (SAE).  The SAE is a registered nurse, advanced practice nurse, physician, or physician assistant who has been specially trained to provide care to sexual assault patients.  The SAE may also be referred to as a Sexual Assault Nurse Examiner (SANE) or Sexual Assault Forensic Examiner (SAFE).
   7. Sexual Assault Forensic Evidence.  Sexual assault forensic evidence is collected as a part of the medical forensic examination and may include, but is not limited to:  the patient's clothing and underwear; foreign material dislodged from clothing; foreign material on the patient's body, including blood, hair, dried secretions, fibers, vegetation, soil, or debris; fingernail scrapings and/or cuttings; material dislodged from the mouth; swabs of suspected semen and saliva; vaginal/cervical swabs and smears; penile swabs and smears; anal/perianal swabs and smears; oral swabs and smears; and body swabs.
   8. Sexual Assault Medical Forensic Examination.  A sexual assault medical examination is a thorough physical examination; collection of forensic specimens/evidence including photographic evidence; treatment of injuries; medications; follow-up; referrals; safety planning; and documentation.
   9. Strangulation.  Strangulation is a form of asphyxia produced by a constant application of pressure to the neck that results in the closure of blood vessels and/or air passages that may lead to injury and death.
   10. Trauma-Informed Care.  Trauma informed care as used in this policy is the provision of care in a manner that recognizes the impact of trauma and prevents retraumatization.
   11. Unreported Sexual Assault Evidence Collection.  Unreported sexual assault evidence collection refers to a patient who has consented to the collection of forensic evidence but has not yet consented to participate in the criminal justice process.  An unreported sexual assault kit contains no personally identifying information on the outside of the kit and cannot be submitted to a laboratory for analysis.

3-29.2  RESPONSIBILITIES

1. Chief Medical Officer, IHS.  The IHS Chief Medical Officer (CMO) is administratively responsible for the issuance of this policy.
2. National Forensic Nurse Consultant.  The IHS National Forensic Nurse Consultant assists in the implementation of this policy by providing training and technical assistance resources, including policy consultation, and expert review.
3. Area Chief Medical Officer.  The Area CMO maintains a repository of IHS policies in his/her respective Area, monitors those policies for compliance with this chapter, and submits copies of local policies to the National Forensic Nurse Consultant.
4. Chief Executive Officer.  The Service Unit Chief Executive Officer (CEO) is responsible for approving the facility's sexual assault response policy and ensuring the policy is fully implemented, reviewed, and updated per Area Governing Board procedures.
5. Facility Medical Director/Clinical Director.  The facility's Medical/Clinical Director is responsible for:
   1. Submitting a copy of the local facility's sexual assault policy to the IHS Area CMO for monitoring compliance;
   2. Implementing the facility's sexual assault policy and procedures in accordance with the requirements set forth in this policy;
   3. Ensuring that medical staff bylaws and local policies allow registered nurses with specialized SAE training to be designated as qualified health care providers in order to provide medical screening examinations in cases of sexual assault;
   4. Establishing collaborative practice agreements for standing medication and laboratory orders, signing orders and charts, and supervision for registered nurses practicing as SAEs;
   5. Ensuring that the medical staff receive required annual sexual violence training;
   6. Establishing local processes for conducting sexual assault medical forensic examinations; and
   7. Ensuring medical staff training records are kept for compliance in each facility, and are made available upon request by the Area CMO or National Forensic Nurse Consultant.
6. Facility Chief Nursing Officer/Director of Nursing.  The facility Chief Nursing Officer/Director of Nursing is responsible for:
   1. Developing the facility's sexual assault policy and procedures in accordance with the requirements set forth in this policy;
   2. Ensuring SAE coverage is available during operating hours and/or through on-call coverage if the facility provides onsite sexual assault medical forensic examinations;
   3. Ensuring referral procedures are in place when a SAE is unavailable;
   4. Developing a process for continuous quality improvement review of all sexual assault medical forensic examinations in coordination with the facility's Medical/Clinical Director;
   5. Developing local competencies for nursing staff for SAE practice;
   6. Ensuring staff in the nursing department receive required annual sexual violence training;
   7. Ensuring nursing staff training records are kept for compliance in each facility, and are made available upon request by the Area CMO or National Forensic Nurse Consultant; and
   8. Identifying a SAE coordinator or liaison within each facility to participate in the local coordinated community response addressing sexual assault.
7. Behavioral Health Provider.  The Behavioral Health Provider, where available, is responsible for evaluating the behavioral health needs of sexual assault victims and providing counseling, follow-up care, or a referral for specialty care, as needed.
8. Sexual Assault Examiner. The SAE is responsible for:
   1. Gathering the medical history, including the sexual assault event history, for the purposes of identifying medical concerns, provide treatment, and to guide evidence collection;
   2. Conducting a thorough physical examination to identify, assess and interpret injuries, including strangulation assessment;

      NOTE:  All facilities must have a policy on the assessment of non-fatal strangulation to determine the need for medical consultation/assessment.

   3. Coordinating with the sexual assault victim advocate and/or system-based victim service professional, when available, to ensure that patients are offered crisis intervention, support, and advocacy before, during, and after the examination process; allowing the support person(s) of the patient's choosing; and offering other services, including spiritual or faith-based consultation;
   4. Coordinating with law enforcement, as needed;
   5. Participation in the coordinated community response, Sexual Assault Response Team, Multidisciplinary Team; where existing;
   6. Providing information and prophylactic treatment for sexually transmitted infections, including HIV;
   7. Providing information for emergency contraception and providing prophylaxis consistent with Indian Health Manual Part 1, Chapter 15 - Emergency Contraception;
   8. Referring patients for additional follow-up care including behavioral health where available, other counseling services, and medical care;
   9. Notifying his or her supervisor and/or the facility CEO that he or she has received a subpoena to testify; and
   10. Meeting minimum training standards and credentialing as set forth in Section 3-29.10.
9. Health Information Manager (HIM).  The HIM is responsible for processing all Release of Information requests specific to sexual assault documentation under subpoena, court order, or otherwise.

3-29.3  INFORMED CONSENT AND PATIENT AUTHORIZATION

1. Informed Consent.  Informed consent shall be obtained from the patient or personal representative prior to performing the medical forensic examination.  The consent form in the jurisdiction's Sexual Assault Evidence Collection Kit will be used.
2. Patients under the Influence of Drugs or Alcohol.  Whether the patient has the decision-making capacity to provide informed consent is based on clinical judgment.  In the development of local policies and procedures regarding informed consent, consult the regional Office of General Counsel (OGC), as well as Service Unit and Area risk managers, regarding applicable consent laws.
3. Patient Authorization.
   1. Patients must initial consent specific to the release of evidence and accompanying paperwork (sexual assault documentation, photographic images, and forensic evidence) on the consent form in jurisdiction's Sexual Assault Evidence Collection Kit in order for it to be released to law enforcement.

      NOTE:  There are circumstances when the law allows for release of this information without consent, for example when the individual is incapacitated and when certain criteria apply; consult with facility HIM Privacy Officer and/or the regional OGC for guidance.

   2. The patient may complete and sign Form IHS 810 - "Authorization for Use or Disclosure of Health Information" to voluntarily authorize the disclosure of information related to the sexual assault from the health record at any time.
   3. A process shall be established to obtain patient authorization for contact after sexual assault for case management, follow-up medical care, and making referrals prior to release from the facility.

3-29.4  MEDICAL RECORDS

1. Release of Information.  All Release of Information requests specific to sexual assault documentation under subpoena or court order are referred to the facility's HIM.
2. Electronic Health Record (EHR).  A note of the presentation for care following sexual assault is made in the EHR.  The consent form, forensic photographs, and paperwork documentation from the sexual assault evidence collection kit will be uploaded into the EHR; will be severely restricted for limited access as determined at the service unit level (i.e. limited to HIM, sexual assault program coordinator); and will not be stored in the patient's paper chart.

3-29.5  EVIDENCE

1. Storage.  Timely transfer of evidence to law enforcement is a priority, however a temporary hold of evidence in a secure location under environmentally appropriate conditions may be necessary until the evidence is transferred to law enforcement.

   Storage and destruction of evidence ideally is the role of law enforcement agencies.  Should law enforcement not accept or store evidence without the assault being reported, proper evidence storage at the facility is required until the kit is either submitted to law enforcement or destroyed.

   In the event the kit must be stored at the facility, environmental and security standards must be met to assure the contents contained within the kit meet the standards to be processed by a crime laboratory, evidence integrity is maintained, and chain of custody is secured for the criminal justice system.

2. Timing Considerations for Collecting Evidence.  Deoxyribonucleic acid technology is extending the time period when evidence can be collected, however jurisdictional policies still vary.  All SAEs shall be familiar with local jurisdictional crime laboratory and national evidence-based recommendations regarding timeframes for evidence collection and offer evidence collection according to said timeframes based on clinical history.

3-29.6  PATIENT CARE

1. Patient Safety.  Patient safety must be ensured by notifying security when indicated, limiting visitor's access to the patient without the patient's consent, and requesting law enforcement presence, if needed.  Discharge planning for patient safety should be addressed in local policies and coordinated with appropriate local victim services personnel, where available.
2. Patient-Centered Care.  Each patient who has experienced sexual assault shall be provided:
   1. Triage as a priority treatment patient;
   2. Immediate access to a private exam room and/or private waiting area;
   3. A health care provider of a specific gender to conduct the sexual assault examination, whenever possible;
   4. Advocacy services, where available, and support persons of his or her choosing;
   5. Full explanation of the examination process, including the use of language interpreters when needed, with the option to decline any portion of the exam; and
   6. Information in order to make their own decisions about participation in all components of the sexual assault medical forensic examination process, including explanations of all possible options and the consequences of choosing one option over another, and support in their choices.  Exam options include:
      1. Medical forensic exam with evidence collection and report to law enforcement;
      2. Alternative Medical forensic exam including:
         1. Unreported sexual assault evidence collection as evidence collection without report to law enforcement; or
         2. Anonymous sexual assault evidence collection as evidence collection with participation in the criminal justice process but wishes to remain anonymous.

            For more information, refer to section 3-29.8 and National Best Practices for Sexual Assault Kits; NIJ 2017Exit Disclaimer: You Are Leaving www.ihs.gov 

      3. Medical exam without evidence collection or report to law enforcement.
3. Access by Referral.  All IHS-operated facilities that provide access to sexual assault medical forensic examinations by referral shall:
   1. Have local policies, protocols, and procedures that outline the referral process, including the name, number, and location of the offsite provider; and
   2. Refer to centers that provide quality care, employ trained SAEs, and have access to appropriate medical forensic equipment that are within a two hour drive time, when feasible.
4. Transportation.  All IHS-operated facilities shall have local policies, protocols, and procedures outlining transportation services in compliance with Emergency Medical Treatment and Labor Act (EMTALA), if applicable.

   Transportation may be coordinated with victim advocacy, social services, or another service agency providing transportation for victims of sexual assault.  If no other service is available, or at the patient's request, the IHS shall provide facility-funded transportation to and from the referral facility.

3-29.7  REPORTING

There is no Federal mandate to report sexual assault for patients age 18 and over, and Federal laws may restrict reporting without the patient's consent. Nonetheless, providers should be aware of their individual state licensure requirements. In the development of local policies, consult with the regional OGC for guidance.

3-29.8  UNREPORTED SEXUAL ASSAULT EVIDENCE COLLECTION

1. Unreported sexual assault evidence collection kits shall be labeled with a unique alphanumeric identifier.  Medical record and patient account numbers may not be used as a unique alphanumeric identifier.  (The HIPAA privacy rule, 45 CFR 164.514(b)(2), prohibits the use of any other existing identifier, including the medical record number or the patient account number.)

   NOTE:  Some jurisdictions allow for Anonymous sexual assault evidence collection.  This refers to evidence collection from a victim who has consented to a sexual assault kit and to participate in the criminal justice process but wishes to remain anonymous.  An anonymous sexual assault kit contains no personally identifying information; however, the kit may be submitted to a laboratory for analysis.

2. The patient must be informed at the time of the examination that identifiable patient information has been removed and a unique identifier has been placed on the kit and whether the kit will be turned over to law enforcement.
3. Inform patient on how long the evidence will be kept by law enforcement or the facility, timeline for destruction of kit when no report is made, and instructions on what they should do if they decide to report the incident to law enforcement.

   NOTE:  There may be a rare instance in which a subpoena is issued requiring testimony, which would reveal the identity of an anonymous or unreported kit.  If faced with this situation, contact your OGC regional attorney (refer to Section 3-29.11).

3-29.9  SUSPECT EXAMINATIONS

1. Suspect Examination.  All IHS personnel should be aware that law enforcement may request that a suspect examination be conducted.  Because evidence of a sexual offense can dissipate rapidly, law enforcement officials are often working under significant time constraints imposed by law, and the IHS facility may be the only reasonable resource available to conduct such exams.  This cooperation, where law enforcement has made an appropriate request, may be deferred when clinical judgment indicates a priority exists to provide health care to a medically unstable, seriously ill, or injured patient.  The evidence collected shall be directly and immediately provided to law enforcement officers for chain of custody accounting, including laboratory processing.
2. Who May Perform the Suspect Examination.  Suspect examination may be performed by physicians, physician assistants, advanced practice nurses, registered nurses, or SAEs; however, the same staff shall not perform the exam on both the suspect and the victim.
3. Exceptions.  The suspect examination will not be conducted if one or more of the following exceptions apply:
   1. Such an exam is not authorized by controlling applicable law;
   2. The suspect presents a danger to IHS personnel; and
   3. There is a medical contraindication to conducting the exam.

3-29.10  SAE TRAINING, COMPETENCIES, AND PRIVILEGING

1. Adult/Adolescent SAE Training.  The SAE training must conform to the educational requirements of the International Association of Forensic Nurses and the U.S. Department of Justice's National Training Standards for Sexual Assault Medical Forensic Examinations.
   1. Registered Nurses, Advanced Practice Nurses:  Successful completion of an adolescent/adult sexual assault nurse examiner education program that grants a minimum of 40 hours OR Successful completion of a pediatric/adolescent/adult sexual assault forensic examiner education program that grants a minimum of 64 hours.
   2. Physician Assistants:  Successful completion of an adolescent/adult SAE education program that grants a minimum of 40 hours OR Successful completion of a pediatric/adolescent/adult sexual assault forensic examiner education program that grants a minimum of 64 hours.
   3. Physicians:  Successful completion of a minimum of 16 hours of formal didactic training in the medical evaluation of adult sexual assault.
   4. Disciplines must receive appropriate category of continuing education per licensure requirements.

      NOTE:  SANE certification is not a requirement for practice at IHS-operated facilities.

2. Clinical Skills Preceptorship.  Direct patient care clinical preceptorship is required for all registered nurses, advanced practice nurses, physicians, or physician assistants who are new to the field of clinical forensic services, or need a refresher course for clinical skills.  Clinical preceptorship shall be completed with the guidance of a forensically experienced SAE either onsite or at a formal training.  Clinical preceptorship content must meet the educational requirements of the International Association of Forensic Nurses and the Department of Justice's National Sexual Assault Forensic Medical Examination Training Standards.

   NOTE:  Competency is determined by the professional assessing the required clinical skills.

3. Continuing Education.  The continuing education requirement for SAEs is two hours of annual relevant sexual assault training.  The training may be completed by webinars, peer review, clinical skills training, or conference attendance.
4. Suspect Examinations.  SAEs will receive training on evidence collection for suspect examinations.
5. Privileging.  The training specified in this policy shall be part of the local facility privileging processes for physicians, physician assistants, and advanced practice nurses conducting sexual assault medical forensic examinations.
6. Competencies.  The training specified in this policy shall be part of the annual competencies for registered nurses to conduct sexual assault medical forensic examinations.
7. Minimum Number of Yearly Examinations.  In the event a SAE has not performed a sexual assault medical forensic examinations over a one-year period, methods for competency assessments may include completing a virtual clinical practicum, simulation training, repeating clinical skills preceptorships and/or training, or completing a sexual assault medical forensic examination observed by a forensically experienced SAE.
8. Continuous Quality Improvement.  Facilities providing onsite sexual assault medical forensic examinations must have processes in place for continuous quality improvement including case review, chart review, and documentation.

3-29.10  RESPONDING TO A SUBPOENA

For guidance refer to the Indian Health Manual Part 5, Chapter 27 - Responding to Requests for IHS Employee's Testimony or IHS Documents in Proceedings where the United States is not a Party.