New Part 722 defines operational standards and processes a program must meet for Department designation as a hospital-based SAFE program. Programs must agree to meet these standards as a condition of designation and continued recognition.

Section 405.9(c) is being amended to clarify every hospital's responsibility to provide treatment to sexual assault survivors as well as to maintain evidence.

Section 405.19(c)(4) is being amended to provide an appropriate cross-reference to section 405.9(c).

Statutory Authority:

These regulations are authorized pursuant to the passage of the Sexual Assault Reform Act (SARA), Chapter 1 of the Laws of 2000, which amends Public Health Law (“PHL”) section 2805-i. In accordance with SARA, section 2805-i(4-b)(a) of the PHL, as amended, authorizes the Commissioner, to “with the consent of the directors of interested hospitals in the state and in conjunction with the commissioner of the division of criminal justice services, designate hospitals in the state as the sites of a twenty-four hour sexual assault forensic examiner (SAFE) program.” The hospital sites “shall be designated in urban, suburban and rural areas to give as many state residents as possible ready access to the sexual assault forensic examiner program.”

Section 2803(2) of the PHL authorizes the State Hospital Review and Planning Council to adopt and amend rules and regulations, subject to the approval of the Commissioner, to effectuate the provisions and purposes of Article 28.

Legislative Objectives:

A primary legislative objective of Article 28 of PHL is “the protection and promotion of the health of the inhabitants of this state.” PHL section 2800 provides, inter alia, that “the department of health shall have the central, comprehensive responsibility for the development and administration of the state's policy with respect to hospital and related services …” Subdivision (5) of PHL section 2805-i, as amended, authorizes the Commissioner to promulgate such rules and regulations as may be necessary and proper to carry out effectively the provisions of this section regarding the designation of hospital-based sexual assault forensic examiner programs. These regulatory standards will promote quality medical and forensic care to survivors of rape and sexual assault in the hospital setting.

Needs and Benefits:

The Department has established regulatory standards to promote quality care for survivors of rape and sexual assault in hospitals throughout the state as set forth in:

Section 405.9 – Establishment of hospital-based protocols and the maintenance of sexual offense evidence;

Section 405.19 – Emergency Services.

The above regulations are amended to clarify every hospital's responsibility for the treatment of survivors as well as for the maintenance of evidence. This clarification is supported by Chapter 504 of the Laws of 1994.

Every hospital in New York State must ensure that all survivors of rape or sexual assault who present at the hospital are provided with care that is consistent with current standards of practice. In addition to maintaining evidence collection, hospitals are expected to maintain current protocols regarding the care of patients reporting sexual assault, provide survivors with appropriate assessment, treatment and referrals, provide emotional support, and minimize the potential for further trauma. Hospital staff are also expected to discuss with the survivor the option of reporting the offense to the police, offer to provide and provide if requested, prophylaxis against pregnancy, sexually transmitted diseases, hepatitis B and HIV, as appropriate, and reasonably assure the survivor an appropriate and safe discharge. Additionally, all hospitals shall advise patients of the availability of services provided by local rape crisis or victim assistance organizations and contact such an organization when an alleged sexual offense victim seeks treatment so that a representative may offer services to the survivor.

Further, a new Part 722 is being added to define operational standards and process for SAFE designation. Hospitals interested in becoming DOH-approved SAFE programs must agree to meet these standards as a condition of designation and continued recognition.

To enhance access to and the quality of care to survivors of sexual assault, the Department implemented a hospital-based twenty-four hour sexual assault forensic examiner (SAFE) program. This designation reflects the hospital's intention to comply with DOH requirements and provide more comprehensive services to survivors. These services include providing consistent and compassionate state of the art medical care and providing forensic examinations in private settings by specially trained DOH-certified sexual assault forensic examiners.

There have been significant changes pertaining to the care and treatment of the survivors of sexual assault. Only in recent years have health care facilities begun to recognize their responsibility to have trained staff available to provide specialized services for survivors of sexual assault. Hospitals now recognize the importance of having knowledgeable staff to conduct sexual assault examinations, gather forensic evidence, and work with the survivors to enable the recovery process to begin.

SAFE program philosophy is based upon the belief that providing a specialized standard of medical care and evidence collection to survivors of sexual assault will support recovery and prevent further injury or illness arising from victimization, and may increase the successful prosecution of sex offenders for survivors who choose to report the crime to law enforcement. In a journal review conducted by the Division of Criminal Justice Services (“DCJS”) and reported in an unpublished Report on New York State Sexual Assault Examiner Programs (June 2002), SAFE programs are credited with significantly improving medical-forensic treatment of sexual assault survivors.

Anecdotal claims of programs' success in increasing survivor use of aftercare services, improving reporting rates and facilitating successful prosecution, are found throughout the literature as well. The confidential and sensitive nature of sexual assault can make it difficult to contact survivors directly for their perceptions of the services they received from SAFE programs. In an effort to obtain information about the efficacy of the program, DCJS surveyed thirty prosecutors (with a response from 22 or 73%) and 33 rape crisis advocate programs (with a response from 25 or 76%) for

(1) their perceptions of the quality and effectiveness of SAFE services,

(2) the quality of forensic evidence collected by SAFE practitioners in comparison to non-SAFE practitioners, and

(3) the effects, if any, of those differences upon the prosecution of sexual assault cases and the survivors' use of aftercare.

Of the prosecutors who were able to distinguish SAFE from non-SAFE cases, almost 90% of the 22 responders indicated they were very satisfied with SAFE programs and view them as valuable in achieving successful outcomes in sexual assault cases. Advocates also rated SAFE hospital medical treatment and quality of forensic evidence collection as superior to the treatment and quality of evidence by and from non-SAFE hospitals. They also consider SAFEs more knowledgeable, competent, more experienced and better equipped that non-SAFE medical providers.

Hospitals wishing to provide more comprehensive services to survivors may seek and obtain DOH designation as SAFE programs under new Part 722. The DOH-approved SAFE program will involve an interdisciplinary collaborative effort involving the SAFE program, a rape crisis center, law enforcement, the prosecutor's office and other appropriate community service agencies. These organizations will provide a coordinated response that not only effectively meets the needs of the sexual assault survivor, but also improves the overall community response to sexual assault.

In reviewing applications from interested hospitals, the Department is required by law to consider specific criteria when designating hospital SAFE programs, including the following:

(1) location,

(2) capacity to coordinate services for survivors,

(3) accessibility for survivors with disabilities,

(4) existing services for survivors,

(5) capacity to collect uniform data, and

(6) compliance with applicable Federal and State laws and regulations and standards established in the NYS Protocol for the Acute Care of the Adult Patient Reporting Sexual Assault (as currently posted on the DOH website at www.health.state.ny.us/nysdoh/sexual_assault/index.htm).

The implementation of DOH-approved hospital-based SAFE programs will result in greater access to more appropriate levels of care for survivors of sexual assault and strengthen the relationships between the SAFE programs and others who serve this population.

Failure to adopt these regulations will negatively impact the ability of the Department to comply with SARA as well as to improve the care and treatment of the survivor of rape and sexual assault.

Costs:

Costs for the Implementation of and Compliance with the Regulations to Regulated Entities:

There should not be a negative fiscal impact on hospitals. Although there was no appropriation of funds for hospitals in SARA, currently all hospitals are required to provide medical services to all patients presenting at their hospitals, including survivors of sexual assault. Many hospitals across the state already have SAFE examiners. The regulations will merely establish quality standards for SAFE programs that will result in improved outcomes of treatment for survivors.

There are also data collection requirements, which will be helpful to the SAFE programs in evaluating their services to the community. A designation as a DOH-approved SAFE program will recognize that such a hospital is able to provide the highest level of care to survivors, including the on-site provision of HIV prophylaxis and emergency contraception; and with the interdisciplinary collaboration required in the response to sexual assault, may result in a positive perception by the community.

Seeking DOH designation as a SAFE program is voluntary. Depending on the level of services currently offered, there may be some additional costs to the hospitals, but a hospital need not seek the designation if its administrator feels that doing so would compromise the hospital financially.

The expansion of section 405.9(c) of this Title clarifies treatment standards that all hospitals should be using in the care of survivors of sexual assault and therefore, no additional expense should be incurred.

Costs to State and Local Governments:

There will be no additional costs to State or local governments.

Costs to the Department of Health:

The cost of designating hospitals will be absorbed by the Department using existing resources. The statewide designation process will be carried out on a continuous basis, with interested hospitals applying at their discretion. It is expected that the submission of applications will be staggered and not pose an undue burden on staff.

Paperwork:

Hospitals interested in becoming sites of DOH-approved SAFE programs will need to complete a survey describing their ability to meet required standards. These hospitals will also be required to maintain and submit data related to their activities in a format prescribed by the Department. This data will enable the SAFE program to document the extent of the problem of sexual assault and the level of service it provides, determine the cost of the service and provide information for program planning, quality improvement, and evaluation purposes. The data will be submitted periodically for use in program monitoring and public health and criminal justice planning.

Local Government Mandates:

These amendments do not impose any new program, services, duties or responsibilities upon any county, city, town, village, school district, fire district, or other special district.

Duplication:

These regulations do not duplicate any other State or Federal law or regulation.

Alternatives:

Significant effort has been made by the Bureau of Women's Health (BWH) to obtain meaningful input into this process by stakeholders and other interested parties. A workgroup comprised of experts involved with the prevention, care, treatment and intervention of crises precipitated by the crimes of rape and sexual assault was convened to advise the Department about the impact of designating hospital-based SAFE programs in NYS. This group was comprised of rape crisis service providers and advocates, sexual assault examiners (nurses and physicians), forensic pathologists, the NYS Police, representatives from the Crime Victims Board and DCJS, The Greater NY Hospital Association, emergency department physicians, and various representatives from DOH, including the Office of Health Systems Management and the Division of Legal Affairs and BWH. Based on the input received from the workgroup, the Department developed standards for hospital-based SAFE programs, sexual assault examiners and individuals who wish to provide training to sexual assault examiners. These standards and SARA form the basis for the proposed regulations.

The concept of designating DOH-approved hospital-based SAFE programs throughout NYS has the strong support of health care and victim service providers and rape crisis and victim advocates. The proposed regulations reflect the highest standard of care for survivors of sexual assault.

Federal Requirement:

At present, the Federal Government does not have any minimum standards for this area of injury prevention and public health. There are no Federal requirements in place for this area.

The DOH-approved hospital-based SAFE program will help New York meet Healthy People 2010 injury prevention goals established by the U.S. Department of Health and Human Services.

Compliance Schedule:

The proposed regulation will become effective upon publication of a Notice of Adoption in the State Register. Since applications will be accepted continuously and designation is voluntary, hospitals that do not wish to become DOH-approved SAFE Programs will not need to comply with the proposed regulation. Compliance schedules for those hospitals seeking DOH approval will be set in accordance with the date on which the application is received.

Although the regulation has been changed since it was published in the State Register on June 28, 2006, the changes do not necessitate any changes to the Regulatory Flexibility Analysis, Rural Area Flexibility Analysis or Job Impact Statement.

Comment:

Section 405.9(c)(1)(v) – One commenter requested the sentence “provide to patients, upon request, prophylaxis against pregnancy, sexually transmitted diseases, hepatitis B and HIV, as medically indicated” to “provide patients information about prophylaxis against pregnancy, sexually transmitted diseases, hepatitis B and HIV, as medically indicated.”

Response:

Changes are not recommended. Section 405.9(c)(1)(iv) requires hospitals to provide written and verbal information to patients in regards to treatment options and emergency prophylaxis to facilitate an informed choice. In addition, the phrase “upon request” mirrors the language in Section 2805(p) of the Public Health related to emergency contraception.

Comment:

Section 405.9(c)(2)(i) – One commenter suggested the listing of sexual offenses subject to the provision of the subdivision either be expanded or deleted as “providing a partial list may be construed as only those offenses listed being subject to evidence collection.”

Response:

Changes are not recommended. The listing of sexual offenses is in current regulation. The language “as defined in Article 130 of the Penal Law” was to clarify the definition of sexual offense and accompanying terms.

Comment:

Section 405.9(c)(2)(v) – One commenter requested a clarification of the types of burn injuries that must be reported to the state fire administrator.

Response:

Changes are not recommended. The regulation also references Section 265.26 of the Penal Law which defines burn injuries or wounds to be reported.

Comment:

Section 405.9(c)(2)(vii) – One commenter requested language in this section be amended to state that, if evidence has not been surrendered to police within 30 days of treatment, the evidence “may” be discarded rather than “shall” be discarded in cases where hospitals with more storage would choose to keep the evidence beyond the 30 day period.

Response:

Changes are not recommended. The current language conforms to Section 2805-I of Public Health Law that stipulates that sexual offense evidence will be discarded after 30 days.

Comment:

Section 405.9(c)(1)(iii) - One commenter requested that this section “advise patients of the availability of services provided by a local rape crisis or victim assistance organization and, unless the patient declines such services, contact such organization … so a representative may offer the patient the services the organization provides” be revised to require patient consent.

Response:

Changes are not recommended. The current language requires the patient be informed of the services and provides the opportunity for the patient to decline. There is also no consent requirement in Section 2805-I of Public Health Law.

Comment:

Section 722.1(a)(3) – One commenter suggested that this section that currently reads “are designed to provide specialized standards of medical care and evidence collection that support recovery and prevent further injury or illness arising from the trauma for survivors who choose to report the crime to law enforcement and may increase the successful prosecution of sex offenders” is revised to read “are designed to provide specialized standards of medical care and evidence collection that support recovery and prevent further injury or illness arising from the trauma for all survivors and may increase the successful prosecution of sex offenders for survivors who choose to report the crime to law enforcement.” The commenter stated that current language seems to indicate that specialized standards only apply to survivors choosing to report the crime to law enforcement.

Response:

The technical amendment has been made to better reflect the intent of the regulation.

Comment:

Section 722.2(a)(4) – One commenter requested that the term “disabled individuals” be replaced with the more appropriate term “individuals with disabilities” as the term “disabled individuals” is “labeling and potentially offensive to persons with disabilities.”

Response:

This technical amendment has been made.

Comment:

Section 722.5(a)(4) – One commenter requested that the term “disabled” be replaced with the more appropriate term “individuals with disabilities.”

Response:

This technical amendment has been made.

Comment:

Section 722.6(a)(8) – One commenter requested that the term “disabled patients” be replaced with the more appropriate term “patients with disabilities”

Response:

This technical amendment has been made.

Comment:

Section 722.6(a)(5) and 722.9(a) – One commenter requested that the 60 minute timeframe required in regulation for the SAFE examiner to meet the patient at the hospital should be extended for situations such as distance the examiner may live from the hospital etc.

Response:

Changes are not recommended. Both sections include the phrase “except under exigent circumstances” which allows for a greater timeframe if needed due to circumstances such as weather or hospitals located in rural areas.

Comment:

Section 722.6(a)(10) – One commenter suggested that the sentence “For example, HIV PEP should be offered within 0–34 hours after exposure. If a sexual assault survivor is too distraught to engage in a discussion about the drug regimen or make a decision about whether to initiate treatment at the initial assessment, the clinician should offer a first dose of medication and make arrangements for a follow-up appointment within 24 hours to further discuss the indications of PEP” be added to clarify the section discussing prophylaxis for sexually transmitted diseases, HIV and hepatitis B.

Response:

Changes are not recommended. Section 766.6(a)(9) states that medical treatment must be consistent with generally accepted standards, including standards such as those incorporated in the Department's Protocol for the Acute Care of the Adult Patient Reporting Sexual Assault (Protocol). The Protocol contains details regarding medical treatment and follow-up that would not be appropriate to include in regulation.

Comment:

Section 722.7(a)(1) – One commenter requested that the language that hospital emergency staff “provide triage and assessment in a timely manner” be revised to require that the triage and assessment take place “within sixty minutes or less of the patient's arrival at the hospital. The same commenter requested that the rape crisis advocate be contacted at the same time as the triage and assessment.

Response:

Changes are not recommended. Section 722.7(a) already states the emergency department staff shall immediately implement the protocol and Section 722.6(a)(5) already requires a SAFE examiner to meet the patient within sixty minutes of the patient's arrival in the hospital. Section 722.7(a)(3) currently requires that the rape crisis advocate is contacted the same time as the SAFE examiner. No further clarification is required.

Comment:

Section 722.10(a) – One commenter suggested that the Continuous Quality Improvement Program in the SAFE program include that the survivor be provided with written polices and a form to evaluate the quality of services.

Response:

Changes are not recommended. This section requires that the SAFE program develop a quality improvement program which will be integrated into the hospital's overall quality improvement program. The written policies discussed are related to the establishment of the quality improvement program. These policies would not be appropriate to give to rape survivors. The components listed as part of the quality improvement program are examples and not an inclusive list. The addition of a form for the survivor to evaluate services would be optional on the part of the hospital and also dependent on the survivor's situation and therefore unnecessary to put into regulation.

Comment:

Needs and Benefits – One commenter requested that the term “disabled survivors” be changed to “survivors with disabilities”.

Response:

This technical amendment has been made.

Comment:

One commenter suggested that the requirement for a “local rape crisis or victim assistance organization” be revised to just include “rape crisis counselor” as the commenter stated “counselor” is a more universal term.

Response:

Changes are not recommended. The current language mirrors Section 2805-I of Public Health Law and also provides hospitals with the flexibility to contact a victim advocate based on the hospital's and local resources and the patient's needs.

Comment:

One commenter stated that sexual “offense” and sexual “assault” are used interchangeably throughout the regulations and suggested that the same phrase be used throughout.

Response:

Changes are not recommended. Choices of terms are consistent with practices and terminology used in the field, and in some cases the use of “assault” in place of “offense” and vice versa would be inappropriate. Implementation and enforcement of regulations has not, and will not, be affected by the use of both terms.