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SB-1094 Sexual assault: medical evidentiary examinations.(2019-2020)

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Date Published: 03/26/2020 09:00 PM
SB1094:v98#DOCUMENT

Amended  IN  Senate  March 26, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 1094


Introduced by Senator Leyva

February 19, 2020


An act to add Section 13964.5 to the Government Code, and to amend Section 13823.95 of the Penal Code, relating to medical evidentiary examinations, and making an appropriation therefor. Sections 1235.5 and 1290.5 to the Health and Safety Code, and to amend Sections 13823.93, 13823.95, and 13823.11 of the Penal Code, relating to medical evidentiary examinations.


LEGISLATIVE COUNSEL'S DIGEST


SB 1094, as amended, Leyva. Sexual assault: medical evidentiary examinations.
Existing law requires the cost of a medical evidentiary examination performed by a qualified health care professional, hospital, or other emergency medical facility for a victim of a sexual assault to be treated as a local cost and charged to the local law enforcement agency in whose jurisdiction the alleged offense was committed. Existing law authorizes a local law enforcement agency to seek reimbursement from the Office of Emergency Services for the cost of conducting the medical evidentiary examination portion of a medical examination of a sexual assault victim who has not decided whether to participate in the criminal justice system.
This bill would specify that a medical evidentiary examination includes the treatment, as specified, of any injuries sustained as a result of an assault and testing for pregnancy and sexually transmitted infections.
Existing law prohibits the billing of a victim of a sexual assault for a medical evidentiary examination.
This bill would authorize the State Department of Public Health to assess an administrative penalty against hospitals and clinics for a violation of this prohibition. The bill would require the proceeds of these penalties to be placed into the Medical Evidentiary Examination Penalty Fund, created by this bill, and would make those funds available upon appropriation by the Legislature to the department to reimburse hospitals and clinics for unbilled costs, as specified.

This bill would instead authorize the facility to be reimbursed by the California Victim Compensation Board from the Restitution Fund, a continuously appropriated fund, at a rate to be set by the board.

By expanding the authorizations for use of moneys in the continuously appropriated Restitution Fund, this bill would make an appropriation.

Vote: TWO_THIRDSMAJORITY   Appropriation: YESNO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 1235.5 is added to the Health and Safety Code, to read:

1235.5.
 (a) The director may assess an administrative penalty against a licensee of a clinic licensed under this chapter for billing a patient in violation of Section 13823.95 of the Penal Code.
(b) An administrative penalty assessed pursuant to subdivision (a) shall be in the following amounts:
(1) For the first offense, ten thousand dollars ($10,000).
(2) For the second offense, fifteen thousand dollars ($15,000).
(3) For the third and any subsequent offense, twenty thousand dollars ($20,000).
(c) Any penalties collected pursuant to this section shall be deposited into the Medical Evidentiary Examination Penalty Fund, which is hereby created and shall be available to the department, upon appropriation by the Legislature, to reimburse clinics and health facilities for any unreimbursed and unbilled costs related to medical evidentiary examinations performed.

SEC. 2.

 Section 1290.5 is added to the Health and Safety Code, to read:

1290.5.
 (a) The director may assess an administrative penalty against a licensee of a health facility licensed under this chapter for billing a patient in violation of Section 13823.95 of the Penal Code.
(b) An administrative penalty assessed pursuant to subdivision (a) shall be in the following amounts:
(1) For the first offense, ten thousand dollars ($10,000).
(2) For the second offense, fifteen thousand dollars ($15,000).
(3) For the third and any subsequent offense, twenty thousand dollars ($20,000).
(c) Any penalties collected pursuant to this section shall be deposited into the Medical Evidentiary Examination Penalty Fund described in Section 1235.5 and shall be available to the department, upon appropriation by the Legislature, to reimburse clinics and health facilities for any unreimbursed and unbilled costs related to medical evidentiary examinations performed.

SEC. 3.

 Section 13823.93 of the Penal Code is amended to read:

13823.93.
 (a) For purposes of this section, to “perform a medical evidentiary examination” means to evaluate, collect, preserve, and document evidence, interpret findings, and treat injuries sustained as a result of an assault, provide testing for pregnancy and sexually transmitted infections, and document examination results as described in Sections 13823.5 to 13823.11, inclusive.
(b) (1) To ensure the delivery of standardized curriculum, essential for consistent examination procedures throughout the state, one hospital-based training center shall be identified as the California Clinical Forensic Medical Training Center and established through a competitive bidding process, to train qualified health care professionals on how to perform medical evidentiary examinations for victims of child abuse or neglect, child sexual abuse, intimate partner violence, sexual assault, sex trafficking, domestic violence, elder or dependent adult abuse, and abuse or assault perpetrated against persons with disabilities. The center also shall provide training for investigative and court personnel involved in dependency and criminal proceedings, on how to interpret the findings of medical evidentiary examinations.
(2) The training provided by the training center shall be made available to qualified health care professionals, law enforcement, and the courts throughout the state.
(c) The training center shall meet all of the following criteria:
(1) Recognized expertise and experience in providing medical evidentiary examinations for victims of child abuse or neglect, child sexual abuse, intimate partner violence, sexual assault, sex trafficking, domestic violence, elder or dependent adult abuse, and abuse or assault perpetrated against persons with disabilities.
(2) Recognized expertise and experience implementing the protocol established pursuant to Section 13823.5.
(3) History of providing training, including, but not limited to, the clinical supervision of trainees and the evaluation of clinical competency.
(4) Recognized expertise and experience in the use of advanced medical technology and training in the evaluation of victims of child abuse or neglect, child sexual abuse, intimate partner violence, sexual assault, sex trafficking, domestic violence, elder or dependent adult abuse, and abuse or assault perpetrated against persons with disabilities.
(5) Significant history in working with professionals in the field of criminalistics.
(6) Established relationships with local crime laboratories, clinical laboratories, law enforcement agencies, district attorneys’ offices, child protective services, victim advocacy programs, and federal investigative agencies.
(7) The capacity for developing a telecommunication network between primary, secondary, and tertiary medical providers.
(8) History of leadership in working collaboratively with forensic medical experts, criminal justice experts, investigative social worker experts, state criminal justice, social services, health and mental health agencies, and statewide professional associations representing the various disciplines, especially those specified in paragraph (8) of subdivision (d).
(9) History of leadership of and capability for developing and providing training and technical assistance for sexual assault forensic examination teams, and recognition of the nexus between the sexual assault forensic examination teams and completion of the mandated medical evidentiary examination forms.
(10) History of working collaboratively with state and local victim advocacy organizations, especially those addressing sexual assault and domestic violence.
(11) History and experience in the development and delivery of standardized curriculum for forensic medical experts, criminal justice professionals, and investigative social workers.
(12) History of research, particularly involving databases, in the area of child abuse and neglect, child sexual abuse, intimate partner violence, sexual assault, sex trafficking, elder or dependent adult abuse, abuse or assault perpetrated against persons with disabilities, or domestic violence.
(d) The training center shall do all of the following:
(1) Develop and implement a standardized training program for qualified health care professionals that has been reviewed and approved by a multidisciplinary peer review committee.
(2) Develop and maintain updated standardized medical evidentiary examination forms, both paper and electronic, develop and maintain protocols for examination of child abuse and neglect, child sexual abuse, intimate partner violence, sexual assault, sex trafficking, domestic violence, elder or dependent adult abuse, or abuse or assault perpetrated against persons with disabilities, including supplemental forms and protocols for medical evaluation of strangulation injuries for all types of interpersonal violence.
(3) Advance the field with scientific evidence-based curriculum through standardized form development and data analysis for compliance, quality assurance, and curriculum development.
(4) Develop a telecommunication system network between the training center and other areas of the state, including rural and midsized counties. This service shall provide case consultation to qualified health care professionals, law enforcement, and the courts and provide continuing medical education.
(5) Provide ongoing basic, advanced, and specialized training programs for qualified health care professionals on child abuse and neglect, child sexual abuse, intimate partner violence, sexual assault, sex trafficking, domestic violence, elder or dependent adult abuse, and abuse or assault perpetrated against persons with disabilities, including training on best practices for all abused patients, including patients who suffer from strangulation injuries.
(6) Develop guidelines for the reporting and management of child abuse and neglect, child sexual abuse, intimate partner violence, domestic violence, sexual assault, sex trafficking, elder or dependent adult abuse, and abuse or assault perpetrated against persons with disabilities.
(7) Provide training and technical assistance for sexual assault forensic examination teams on the science of medical evidentiary examinations, emerging trends, and sound operational practices, and conduct annual training needs assessments for sexual assault forensic examination teams.
(8) Develop recommended guidelines for evaluating the results of training for qualified health care professionals performing examinations.
(9) Provide standardized training for law enforcement officers, district attorneys, public defenders, investigative social workers, and judges on medical evidentiary examination procedures and the interpretation of findings. This training shall be developed and implemented in collaboration with the Peace Officer Standards and Training Program, the California District Attorneys Association, the California Peace Officers Association, the California Police Chiefs Association, the California State Sheriffs’ Association, the California Association of Crime Laboratory Directors, the California Sexual Assault Investigators Association, the California Alliance Against Domestic Violence, the Statewide California Coalition for Battered Women, the Family Violence Prevention Fund, child victim advocacy organizations, the California Welfare Directors Association, the California Coalition Against Sexual Assault, the Department of Justice, the agency, the Child Welfare Training Program, and the University of California extension programs.
(10) Promote an interdisciplinary approach in the assessment and management of child abuse and neglect, child sexual abuse, intimate partner violence, sexual assault, sex trafficking, domestic violence, elder or dependent adult abuse, and abuse or assault against persons with disabilities.
(11) Provide training in the dynamics of victimization, including, but not limited to, rape trauma syndrome, intimate partner battering and its effects, the effects of child abuse and neglect, the effects of child sexual abuse, and the various aspects of elder abuse. This training shall be provided by individuals who are recognized as experts within their respective disciplines.
(12) Provide training on the use of the standardized sexual assault forensic examination kit.
(13) Provide continuing education through publications, including, but not limited to, training videos, webinars, and telecommunications.
(e) Nothing in this section shall be construed to change the scope of practice for any health care provider, as defined in other provisions of law.

SEC. 4.

 Section 13823.95 of the Penal Code is amended to read:

13823.95.
 (a) No costs incurred by a qualified health care professional, hospital, clinic, sexual assault forensic examination team, or other emergency medical facility for a medical evidentiary examination of a victim of a sexual assault, as described in the protocol developed pursuant to Section 13823.5, when the examination is performed pursuant to Sections 13823.5 and 13823.7, Section 13823.93, including for the treatment of injuries sustained as a result of the assault and for the testing for pregnancy and sexually transmitted infections, shall be charged directly or indirectly to the victim of the assault.
(b) (1) Any victim of a sexual assault who seeks a medical evidentiary examination, as that term is used in Section 13823.93, shall be provided with a standardized medical evidentiary examination, using the medical evidentiary examination report forms and protocols for victims of sexual assault developed pursuant to Section 13823.5. A victim of a sexual assault shall not be required to participate or to agree to participate in the criminal justice system, either prior to the examination or at any other time. Pursuant to the requirements of the federal Violence Against Women and Department of Justice Reauthorization Act of 2005, and the federal Violence Against Women Reauthorization Act of 2013 through the federal Office of Violence Against Women, standardized medical evidentiary examinations consistent with Sections 13823.5 and 13823.7 shall be provided to sexual assault victims who are undecided at the time of an examination whether to report to law enforcement within the recommended timeframes for collection of evidence. Mandated reporting laws, pursuant to Section 11160, shall apply.
(2) Data from the medical evidentiary examination in paragraph (1), with the patient’s identity removed, may be collected for health and forensic purposes in accordance with state and federal privacy laws.
(c) The cost of a medical evidentiary examination performed by a qualified health care professional, hospital, or other emergency medical facility for a victim of a sexual assault shall be treated as a local cost and charged to and reimbursed within 60 days by the local law enforcement agency in whose jurisdiction the alleged offense was committed.
(1) All medical evidentiary examinations are to be reimbursed at the locally negotiated rate and shall not be subject to reduced reimbursement rates based on patient history or other reasons.
(2) The local law enforcement agency may seek reimbursement, as provided in subdivision (d), to offset the cost of conducting the medical evidentiary examination of a sexual assault victim who is undecided at the time of an examination whether to report to law enforcement.
(d) (1) The Office of Emergency Services shall use the discretionary funds from federal grants awarded to the agency pursuant to the federal Violence Against Women and Department of Justice Reauthorization Act of 2005 and the federal Violence Against Women Reauthorization Act of 2013 through the federal Office of Violence Against Women, specifically, the STOP (Services, Training, Officers, and Prosecutors) Violence Against Women Formula Grant Program, to offset the cost of the medical evidentiary examination.
(2) The Office of Emergency Services shall determine the amount that may be reimbursed to offset the cost of a medical evidentiary exam once every five years. Any increase to the amount that may be reimbursed to offset the cost of a medical evidentiary exam shall not exceed 50 percent of the reimbursement amount most recently determined by the Office of Emergency Services.
(3) Notwithstanding paragraph (2), the Office of Emergency Services may redetermine the amount that may be reimbursed to offset the cost of a medical evidentiary exam, at any time, if the federal government reduces the amount of the grants described in paragraph (1).

SEC. 5.

 Section 13823.11 of the Penal Code is amended to read:

13823.11.
 The minimum standards for the examination and treatment of victims of sexual assault or attempted sexual assault, including child sexual abuse, and the collection and preservation of evidence therefrom include all of the following:
(a) Law enforcement authorities shall be notified.
(b) In conducting the medical evidentiary examination, the outline indicated in the form adopted pursuant to subdivision (c) of Section 13823.5 shall be followed.
(c) Consent for a physical examination, treatment, and collection of evidence shall be obtained.
(1) Consent to an examination for evidence of sexual assault shall be obtained prior to the examination of a victim of sexual assault and shall include separate written documentation of consent to each of the following:
(A) Examination for the presence of injuries sustained as a result of the assault. assault and the treatment of those injuries.
(B) Examination for evidence of sexual assault and collection of physical evidence.
(C) Photographs of injuries.
(2) Consent to treatment shall be obtained in accordance with the usual policy of the hospital, clinic, sexual assault forensic examination team, or other emergency medical facility.
(3) A victim of sexual assault shall be informed that the victim may refuse to consent to an examination for evidence of sexual assault, including the collection of physical evidence, but that a refusal is not a ground for denial of treatment of injuries and for possible pregnancy and sexually transmitted diseases, if the person wishes to obtain treatment and consents thereto.
(4) Pursuant to Chapter 3 (commencing with Section 6920) of Part 4 of Division 11 of the Family Code, a minor may consent to hospital, medical, and surgical care related to a sexual assault without the consent of a parent or guardian, and a minor may consent to, or withhold consent for, a medical evidentiary examination without the consent of a parent or guardian.
(5) In cases of known or suspected child abuse, the consent of the parents or legal guardian is not required. In the case of suspected child abuse and nonconsenting parents, the consent of the local agency providing child protective services or the local law enforcement agency shall be obtained. Local procedures regarding obtaining consent for the examination and treatment of, and the collection of evidence from, children from child protective authorities shall be followed.
(d) A history of sexual assault shall be taken. The history obtained in conjunction with the examination for evidence of sexual assault shall follow the outline of the form established pursuant to subdivision (c) of Section 13823.5 and shall include all of the following:
(1) A history of the circumstances of the assault.
(2) For a child, any previous history of child sexual abuse and an explanation of injuries, if different from that given by parent or person accompanying the child.
(3) Physical injuries reported.
(4) Sexual acts reported, whether or not ejaculation is suspected, and whether or not a condom or lubricant was used.
(5) Record of relevant medical history.
(e) (1) If indicated by the history of contact, a female victim of sexual assault shall be provided with the option of postcoital contraception by a physician or other health care provider.
(2) Postcoital contraception shall be dispensed by a physician or other health care provider upon the request of the victim at no cost to the victim.
(f) (1) Each adult and minor victim of sexual assault who consents to a medical evidentiary examination shall have a physical examination and treatment that includes, but is not limited to, all of the following:
(A) Inspection of the clothing, body, and external genitalia for injuries and foreign materials.
(B) Examination of the mouth, vagina, cervix, penis, anus, and rectum, as indicated.
(C) Documentation of injuries and evidence collected.
(D) Treatment of any injuries that have been sustained as a result of the assault, including any diagnostic tests and procedures, and any prescribed medications deemed appropriate by the examining physician or health care provider.
(2) Children shall not have internal vaginal or anal examinations unless absolutely necessary. This paragraph does not preclude careful collection of evidence using a swab.
(g) The collection of physical evidence shall conform to the following procedures:
(1) Each victim of sexual assault who consents to an examination for collection of evidence shall have the following items of evidence collected, except if the victim specifically objects:
(A) Clothing worn during the assault.
(B) Foreign materials revealed by an examination of the clothing, body, external genitalia, and pubic hair combings.
(C) Swabs from the mouth, vagina, rectum, and penis, as indicated, to determine the presence or absence of semen.
(D) If indicated by the history of contact, the victim’s urine and blood sample, for toxicology purposes, to determine if drugs or alcohol were used in connection with the assault. Toxicology results obtained pursuant to this paragraph shall not be admissible in any criminal or civil action or proceeding against a victim who consents to the collection of physical evidence pursuant to this paragraph. Except for purposes of prosecuting or defending the crime or crimes necessitating the examination specified by this section, any toxicology results obtained pursuant to this paragraph shall be kept confidential, may not be further disclosed, and shall not be required to be disclosed by the victim for any purpose not specified in this paragraph. The victim shall specifically be informed of the immunity and confidentiality safeguards provided by this subparagraph.
(2) Each victim of sexual assault who consents to an examination for the collection of evidence shall have reference specimens taken, except if the victim specifically objects thereto. A reference specimen is a standard from which to obtain baseline information and may be retained for DNA comparison and analysis. Reference specimens may also be collected at a later time if they are needed. These specimens shall be taken in accordance with the standards of the local criminalistics laboratory.
(3) Sexually transmitted infection testing and presumptive treatment based on current guidelines of the federal Centers for Disease Control and Prevention may shall be provided, if indicated by the history of contact. Specimens for a pregnancy test shall be taken, taken and tested, if indicated by the history of contact and the age of the victim. Baseline testing for sexually transmitted infections shall be done for a child, a person with a disability, or a person who is residing in a long-term care facility, if forensically indicated.
(4) (A) If indicated by the history of contact, a female victim of sexual assault shall be provided with the option of postcoital contraception by a physician or other health care provider.
(B) Postcoital contraception shall be dispensed by a physician or other health care provider upon the request of the victim at no cost to the victim.
(5) For a victim of sexual assault with an assault history of strangulation, best practices shall be followed for a complete physical examination and diagnostic testing to prevent adverse outcomes or morbidity and documentation on a supplemental medical evidentiary examination form.
(h) Preservation and disposition of physical evidence shall conform to the following procedures:
(1) All swabs shall be air-dried before packaging.
(2) All items of evidence including laboratory specimens shall be clearly labeled as to the identity of the source and the identity of the person collecting them.
(3) The evidence shall have a form attached which documents its chain of custody and shall be properly sealed.
(4) The evidence shall be turned over to the proper law enforcement agency.
(5) A hospital, clinic, or other emergency medical facility where medical evidentiary examinations are conducted shall develop and implement written policies and procedures for maintaining the confidentiality of medical evidentiary examination reports, including proper preservation and disposition of the reports if the examination program ceases operation, in order to prevent destruction of the medical evidentiary examination reports.
(i) On or before January 1, 2021, a hospital, clinic, or other emergency medical facility at which medical evidentiary examinations are conducted shall implement a system to maintain medical evidentiary examination reports in a manner that facilitates their release only as required or authorized by law. This subdivision does not require a hospital, clinic, or other emergency medical facility to review a patient’s medical records prior to January 1, 2021, in order to separate medical evidentiary examination reports from the rest of the patient’s medical records.

SECTION 1.Section 13964.5 is added to the Government Code, to read:
13964.5.

Claims made by a qualified health care professional, hospital, clinic, sexual assault forensic examination team, or other emergency medical facility for a medical evidentiary examination of a victim of a sexual assault pursuant to Section 13823.95 of the Penal Code shall be paid from the Restitution Fund.

SEC. 2.Section 13823.95 of the Penal Code is amended to read:
13823.95.

(a)No costs incurred by a qualified health care professional, hospital, clinic, sexual assault forensic examination team, or other emergency medical facility for a medical evidentiary examination of a victim of a sexual assault, as described in the protocol developed pursuant to Section 13823.5, when the examination is performed pursuant to Sections 13823.5 and 13823.7, shall be charged directly or indirectly to the victim of the assault.

(b)(1)Any victim of a sexual assault who seeks a medical evidentiary examination, as that term is used in Section 13823.93, shall be provided with a standardized medical evidentiary examination, using the medical evidentiary examination report forms and protocols for victims of sexual assault developed pursuant to Section 13823.5. A victim of a sexual assault shall not be required to participate or to agree to participate in the criminal justice system, either prior to the examination or at any other time. Pursuant to the requirements of the federal Violence Against Women and Department of Justice Reauthorization Act of 2005, and the federal Violence Against Women Reauthorization Act of 2013 through the federal Office of Violence Against Women, standardized medical evidentiary examinations consistent with Sections 13823.5 and 13823.7 shall be provided to sexual assault victims who are undecided at the time of an examination whether to report to law enforcement within the recommended timeframes for collection of evidence. Mandated reporting laws, pursuant to Section 11160, shall apply.

(2)Data from the medical evidentiary examination in paragraph (1), with the patient’s identity removed, may be collected for health and forensic purposes in accordance with state and federal privacy laws.

(c)The cost of a medical evidentiary examination performed by a qualified health care professional, hospital, or other emergency medical facility for a victim of a sexual assault shall be charged to and reimbursed within 60 days by the California Victim Compensation Board from the Restitution Fund.

(d)(1)All medical evidentiary examinations are to be reimbursed at the rate set by the board and shall not be subject to reduced reimbursement rates based on patient history or other reasons.

(2)The board shall determine the amount that may be reimbursed once every five years. Any increase to the amount shall not exceed 50 percent of the reimbursement amount most recently determined by the board.