W. Va. Code R. § 149-11-3

Current through Register Vol. XLI, No. 44, November 1, 2024

Section 149-11-3 - Treatment of sexual assault victims

3.1. Every hospital shall have available 24 hours a day seven days a week:

3.1.1. Qualified medical personnel performing exams on adults/adolescents who have completed a 40-hour sexual assault nurse examiner course and demonstrate clinical competency as outlined and approved by the SAFE Commission;

3.1.1.a. Qualified medical personnel performing exams on pediatric (under age 14)/adolescent victims (ages 14-18) who have completed a 40-hour pediatric sexual assault nurse examiner course and demonstrate clinical competency as outlined and approved by the SAFE Commission;

3.1.2. Physicians, physician assistants, or APRNs who have completed a modified training course, or registered professional nurses who have completed a 40-hour, adult/adolescent sexual assault nurse examiner course and have access to a teleSANE. All courses, modified courses, and teleSANE providers must be approved by the SAFE Commission; or

3.1.3. In lieu of the requirements contained in subdivisions 3.1.1. and 3.1.2., a signed written agreement with a hospital that is in compliance with the requirements of subdivisions 3.1.1. and 3.1.2.

3.2. A health care facility that provides sexual assault forensic exams shall provide the following services:

3.2.1. Appropriate medical forensic services without delay, in a private, age-appropriate, or developmentally appropriate space, required to ensure the health, safety, and welfare of a sexual assault victim and that may be used as evidence in a criminal proceeding against a person accused of the sexual offense, in a juvenile delinquency proceeding under W. Va. Code 49-4-701et seq.;

3.2.2. An offer to complete the Sexual Assault Evidence Collection Kit for any sexual assault victim who presents within 96 hours after the offense, or who has disclosed past sexual assault by a specific individual and was in the care of that individual within the last 96 hours;

3.2.2.a. Appropriate oral and written information concerning evidence-based guidelines for the collection of evidence, depending on the sexual development of the sexual assault victim, the type of sexual offense, and the timing of the sexual offense, shall be provided to the sexual assault victim. A qualified medical provider shall educate and request consent to evidence collection of sexual assault victims who present to a health care facility with a complaint of sexual offense within 96 hours after the sexual offense;

3.2.2.b. The information required under this subsection shall be provided in person by the qualified medical provider providing medical forensic services directly to the sexual assault victim;

3.2.2.c. Following the discussion regarding the evidence-based guidelines for evidence collection in accordance with paragraph 3.2.2.a., evidence collection shall be completed at the sexual assault victim's consent.

3.2.3. Appropriate oral and written information concerning the possibility of infection or sexually transmitted infection in accordance with CDC guidelines.

3.2.4. Medically accurate written and oral information about emergency contraception in accordance with CDC guidelines;

3.2.5. Appropriate oral and written information concerning accepted medical procedures, laboratory tests, medication, and possible contraindications of that medication available for the prevention or treatment of infection or disease resulting from sexual offense;

3.2.6. After a medical forensic or physical examination, access to a shower at no cost, unless showering facilities are unavailable;

3.2.7. Photo documentation, with permission of the sexual assault victim, of the victim's injuries, anatomy involved in the offense, or other visible evidence on the sexual assault victim's body to supplement the medical forensic history and written documentation of physical findings and evidence. Photo documentation does not replace written documentation of the injury;

3.2.8. Referral by the health care facility personnel for appropriate counseling. Initial referral should be to a community-based rape crisis center;

3.2.9. With the consent of the sexual assault victim, a rape crisis center advocate shall remain in the exam room during the medical forensic examination. (See W. Va. Code §61-11A-9 (Sexual Assault Victims' Bill of Rights));

3.2.10. Written information regarding services provided by a rape crisis center and children's advocacy center, if applicable;

3.2.11. Information on drug- or alcohol-facilitated sexual offense testing, including an explanation of the comprehensive scope of a drug test or blood alcohol test, and the limited time frame within which evidence can be collected; and

3.3. If a sexual assault victim is unable to consent to medical forensic services, the services may be provided under the West Virginia Health Care Decisions Act, the Health Care Surrogate Act, or other applicable State and federal laws;

3.4. Procedures to ensure the welfare and privacy of the victim shall be followed and shall include, but not be limited to, the following:

3.4.1. A member of the health care team shall respond immediately with the goal of placing a victim in a private area within 30 minutes of arrival to ensure privacy. Upon arrival the health care team shall initiate the facility's plan for sexual assault victims. Health care personnel shall refer to victims by code to avoid embarrassment.

3.4.2. If, for any reason, the victim is incapable of receiving oral and written information required in paragraph 3.2.2.a., the information shall be given to the caregiver/guardian.

3.4.3. When a victim is in custody, or has been arrested for or convicted of a violent crime or forcible felony and continues to be in custody when the victim presents for the medical forensic exam, then if the qualified medical provider and the representative of the custodial agency, after consultation with the rape crisis center advocate, agree that it is a necessary safety precaution, the representative of the custodial agency may remain in the room. In these situations, health care facility staff shall facilitate privacy for the victim using curtains and positioning.

3.4.4. The health care facility shall call a rape crisis center advocate and shall offer to call a friend or family member to accompany the victim.

3.5. All health care facilities that provide emergency medical services to sexual assault victims shall comply with the West Virginia Crime Victims Compensation Act, West Virginia Health Care Decisions Act, and any local ordinances, municipal codes, rules, or regulations that may apply to the treatment of sexual assault victims.

3.6. Nothing in this rule creates a physician-patient relationship that extends beyond discharge from the health care facility.

3.7. The health care facility shall take all reasonable steps to secure the patient's informed written decision to consent to or decline examination and treatment.

3.8. Nothing in this rule prohibits a health care facility from treating a sexual assault victim who presents more than 96 hours following the offense.

W. Va. Code R. § 149-11-3