Request By:
Ray Larson Commonwealth's Attorney 22nd Judicial Circuit
Opinion
Opinion By: GREGORY D. STUMBO, ATTORNEY GENERAL; Jennifer Black Hans, Assistant Attorney General
Opinion of the Attorney General
KRS 216B.400 establishes an emergency care assistance benefit for victims of sexual assault. The benefit extends to cover the costs of a forensic examination conducted by a physician or sexual assault nurse examiner pursuant to the statewide sexual assault medical protocol, as promulgated by the Justice Cabinet. KRS 216B.400(4), 502 KAR 12:010.
The funding mechanism for this legislative benefit may be found in KRS 346.200, which establishes the Sexual Assault Victim Assistance Fund (hereinafter "SAVAF"] to be administered by the Crime Victims' Compensation Board (hereinafter "the Board"). KRS 346.200(2) provides that SAVAF may receive "state general fund appropriations, gifts, grants, federal funds, or other public or private funds or donations." Further, KRS 346.200(5) specifically provides that if the SAVAF has insufficient funds to pay claims for victims of sexual assault as provided under KRS 346.200(4) and KRS 216B.400, "payment shall be made from the Crime Victims' Compensation Fund."
Payment of forensic sexual assault examinations.
Regarding the issuance of payment for a forensic sexual assault examination, KRS 216B.400(8) provides that the Board shall pay for such examinations "at a rate to be determined by the administrative regulation promulgated by the board after consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707." KRS 216.400(8) also provides that payment shall be made upon the submission of a claim form by the hospital or sexual assault examination facility and the physician or sexual assault nurse examiner to the Board.
However, Kentucky's most recently enacted budget bill, HB 267 (2005) provides:
Sexual Assault Examinations: Notwithstanding KRS 216B.400(8), examinations for reported victims of sexual assault shall be paid by the Crime Victims' Compensation Board in a manner consistent with KRS Chapter 346, at a rate determined by the Board. The Board shall reimburse the hospital or sexual assault examination facility as provided in administrative regulations promulgated by the Board.
Under KRS 346.060, claims for crime victims' benefits are filed "by a person eligible to receive an award, as provided in KRS 346.050 or, if such person is a minor, by his parent or guardian." KRS 346.050(1) provides that the following persons are eligible for awards:
a. A victim of criminally injurious conduct;
b. A surviving spouse, parent, or child of a victim of criminally injurious conduct who died as a direct result of such conduct;
c. Any other person dependent for his principal support upon a victim of criminally injurious conduct who died as a direct result of such crime; and
d. Any person who is legally responsible for the medical expenses or funeral expenses of a victim.
KRS 216B.400(9), which was not suspended under HB 267, provides that:
No charge shall be made to the victim for sexual assault examinations by the hospital, the sexual assault examination facility, the physician, the sexual assault nurse examiner, the victim's insurance carrier, or the Commonwealth.
Under KRS 216B.400(9), a hospital, sexual assault examination facility, physician or sexual assault nurse examiner is "legally responsible for medical expenses" relating to sexual assault examinations not covered by a victim's insurance carrier. Therefore, any of the foregoing parties may apply directly to the Board consistent with the procedures required under KRS Chapter 346 and subject to the relevant regulations promulgated by the Board.
What is included as part of sexual assault forensic examination?
With specific regard to what is included as part of a "sexual assault forensic examination", KRS 216B.400(4) specifically provides that such an examination shall include " basic treatment and evidence gathering services ? and laboratory tests, as appropriate." (Emphasis added.) Additionally, 502 KAR 12:010 promulgates the Commonwealth of Kentucky's sexual assault medical protocol, as required under KRS 216B.400(4). The relevant provisions of this regulation are considered below to address the payment for emergency room doctor medical screening fees, HIV medication and follow-up treatment costs for sexual assault victims. Generally, 502 KAR 12:010 § 2(6) provides that a sexual assault victim shall be advised that a forensic examination shall be free of charge, but that "costs related to medical treatment may be incurred." Therefore, truly incidental costs may not fall within the protocol.
However, the express language of KRS 216B.400(4) requires a forensic examination to include "basic treatment" of the victim. Further, 502 KAR 12:010 § 3, describing the forensic examination, provides that in addition to collecting specified types of evidence, the examiner may collect any "other evidence that could be presented at trial." It is axiomatic that while an initial emergency room screening may provide basic treatment, it also serves the dual purpose of gathering evidence related to the sexual assault (i.e. bruising on the arms corroborating victim's statement). Therefore, as an initial examination by an emergency room doctor provides basic treatment to the victim and may be necessary to present evidence at trial, such an examination is part of the forensic protocol.
Regarding HIV medication, 502 KAR 12:010 § 2(8) provides that sexual assault victims shall be informed of "the need for a physical examination due to the risk of sexually transmitted diseases, pregnancy, injury or other medical problems." Further, as part of the post-forensic examination procedures, information shall be provided to victims regarding follow-up procedures and appointments regarding sexually transmitted diseases ("STD"). 502 KAR 12:010 § 4. Finally, the evidence collected as part of the forensic examination may include any "other evidence that could be presented at trial." Certainly, this may include whether the victim was exposed to an STD. Further, determining the victim's exposure to STDs constitutes "basic treatment" under KRS 216B.400(4).
In determining whether this examination protocol may include HIV medication, it is also significant that the U.S. National Protocol for Sexual Assault Medical Forensic Examinations (DOJ September 2004) specifically provides that, while testing and treatment for sexually transmitted infections ("STIs") should be considered by the physician or nurse examiner on a case-by-case basis, if risk is indicated, patients should receive prophylaxis against STIs. Id. at 49, 105-106. Regarding the risk of HIV infection, the National Protocol specifically suggests offering high-risk victims HIV post-exposure prophylaxis. Id. at 108.
Therefore, based on both the state and national protocols for sexual assault medical forensic examinations, an examination of medical injuries and evaluation and treatment for HIV, including post-exposure prophylaxis, may be considered part of the actual forensic sexual assault exam under KRS 214B.400. To the degree that 107 KAR 2:010 does not provide reimbursement rates sufficient to cover the cost of such testing and medication, the regulation conflicts with KRS 214B.400 and 502 KAR 12:010.
Conclusion
Accordingly, it is our opinion that the emergency room doctor medical screening fee and testing for sexually transmitted diseases, including HIV testing and, where appropriate, the delivery of post-exposure prophylaxis are included as part of the basic treatment and evidence gathering of a forensic examination under KRS 216B.400(4). Further, under the language of HB 267 (2005), cited herein, reimbursement for forensic examinations that include such "basic treatment" shall be reimbursed from the Crime Victims' Compensation Board. To the degree that the rates promulgated under 107 KAR 2:010 conflict with KRS 214B.400, we would recommend amending the regulations.