New Laws Impacting Hospital Sexual Assault Services and the Storage and Retention of Sexual Assault Kits

Change of Law: Hospital Action Required

To:                   Hospital Chief Nursing Officers, Legal Counsel, and Government Affairs Staff
                         Please forward to staff in charge of services for sexual assault survivors

From:              Zosia Stanley, Associate General Counsel | ZosiaS@wsha.org (206) 216-2511

Subject:          New Laws Impacting Hospital Sexual Assault Services and the Storage and
                          Retention of Sexual Assault Kits

Purpose
This bulletin contains information on three laws related to sexual assault nurse examinations and sexual assault evidence kit collection:

• HB 1016: Requires hospitals to provide specific information to individuals seeking sexual assault evidence kit collections and have a plan in place to assist individuals with obtaining such services, effective July 1, 2020;
• HB 2318: Establishes new requirements for local law enforcement to transport and store unreported sexual assault kits, as well as new requirements for the tracking of evidence collected through sexual assault kits, effective June 30, 2020; and
• SB 6158: Establishes a new statewide task force which will develop model protocols to ensure that sexual assault victims receive a coordinated community response when presenting for care at any hospital or clinic following a sexual assault, reporting progress to the state legislature by December 1, 2020.

Several provisions in HB 1016 and HB 2318 will require hospitals to adjust policies and procedures ahead of the implementation dates listed above – see recommendations and next steps for more information.

Applicability/Scope
Requirements included in HB 1016 apply to all hospitals licensed under chapter 70.41 RCW.

Changes to the process of storing and transporting sexual assault evidence kits apply to all entities providing sexual assault forensic examinations, including hospitals and clinics.

Recommendation

1. Review this bulletin to understand the new requirements.
2. If your hospital does not provide sexual assault evidence kit collections, or does not have providers available to provide these services at all times, reach out to your local community sexual assault agency as soon as possible to develop the plan required in HB 1016 (more information below).
   • Establish a timeline for ensuring that appropriate staff are trained to your hospital’s plan.
   • Make sure patients seeking to have a sexual assault kit collected are provided appropriate notice if the service is not available in a timely manner. See below for additional information.
3. If your hospital has been storing any unreported sexual assault kits, reach out to your local law enforcement agency to make a plan for how they will collect or transport any unreported kits from your hospital by January 1, 2021.
4. Before any unreported sexual assault kits are transported to local law enforcement, hospitals may want to consider having a system in place to: 1) redact all patient information from the kit so that it can be anonymously sent to local law enforcement; and 2) record the tracking number of the unreported kit along with the patient’s name and name of the local law enforcement agency transporting the kit so that the potential evidence can be connected to a case if the survivor decides to file a report. Establishing an internal tracking system is important in order to allow future reconciliation of the kit if the survivor later decides to report an assault to law enforcement. Note: tracking numbers are generated from the statewide sexual assault kit tracking system.

Overview

1.  Hospital notification requirements on the availability of sexual assault evidence kit collection (HB 1016)

RCW 70.41.367, passed in the 2019 legislative session, seeks to ensure that survivors of sexual assault have timely access to forensic evidence exams. If a survivor presents to a hospital requesting a forensic evidence exam, the law requires that the individual seeking care is notified promptly by the hospital if services are not available and are then referred to a hospital that is able to provide the service.
This law contains three new requirements for hospitals. Hospitals need to comply by July 1, 2020. These requirements apply to all acute care hospitals licensed under chapter 70.41 RCW:

A.  If a hospital does not provide sexual assault evidence kit (SAK) collections, or does not have appropriate providers available to provide this service “at all times,” the hospital is required to have a plan in place to assist individuals with obtaining a SAK collection from a facility that can provide these services. Since many hospitals do not have SANE staff available 24/7, all hospitals should consider developing a plan and process to provide patients with notice if SAK collection is not available and how to assist the patient to receive care.

• • • The plan must be developed with the hospital’s local community sexual assault agency.
    • The plan should dictate how staff will coordinate care with the local community sexual assault agency in such cases, and how they will assist individuals with finding a facility that can provide these services.

B.  Hospitals must notify any individual who presents at their emergency department requesting a SAK within two hours of requesting this service if the hospital does not provide this service or does not have the appropriate providers available.

C.  Hospitals must notify any individual who presents at their emergency department requesting a SAK that they may file a complaint with the Department of Health if a hospital fails to notify them if services are not available within two hours of requesting a SAK.

WSHA is working to develop a model notice that hospital may use to provide the notice require in HB 1016.

2.  Changes to sexual assault evidence kit storage and retention (HB 2318)

Expansion of what is included in the definition of “sexual assault kit”
The definition of “sexual assault kit” has been expanded to include more than just the box that is the sexual assault evidence kit. The definition now includes “all evidence collected during a sexual assault medical forensic examination.” This means that items like clothing, blood, urine, and other items that are collected during a forensic sexual assault examination are part of the statewide tracking system and subject to storage and retention requirements.

Tracking all parts of a sexual assault kit
Due to the change in the definition of “sexual assault kit,” the state’s sexual assault kit tracking system is now required to track the location and status of all evidence collected during a sexual assault forensic examination. The tracking system is now required to also include information on whether a sexual assault kit contains other biological materials collected for the purpose of forensic toxicological analysis (such as blood or urine). This means that all parts of the kit need to be logged in the tracking system and tracking numbers attached.

Unreported sexual assault kits
An unreported sexual assault kit refers to a kit collected from an individual who has consented to the collection of the sexual assault kit but who has not reported the alleged crime to law enforcement. In 2019, temporary storage and preservation requirements for these unreported kits went in effect, to preserve potential evidence until the legislature addressed requirements for the longer-term storage and retention of these kits in state law. HB 2318 now requires:

• • Effective June 30, 2020, unreported sexual assault kits collected before June 30, 2020, must be transported to the applicable local law enforcement agency by January 1, 2021. The applicable local law enforcement is responsible for conducting the transport of these kits from the hospital to the agency.
  • Unreported sexual assault kits collected on or after June 30, 2020, must be transported from the collecting entity to the applicable local law enforcement agency. The applicable local law enforcement is responsible for conducting the transport of these kits from the hospital to the agency.
  • The applicable law enforcement agency (see definition below) is required to store and preserve unreported sexual assault kits for twenty years from the date of collection.

“Applicable law enforcement agency” is defined as: “the local law enforcement agency that would have jurisdiction to investigate any related criminal allegations if they were to be reported to law enforcement.” According to the law, the applicable local law enforcement agency is determined through consultation between the collecting entity or, in the case of unreported kits collected before June 30, 2020, the Washington state patrol, and local law enforcement agencies.

3.  Model sexual assault protocols for enhancing community coordination (SB 6158)

Survivors of sexual assault have noted that the response and services they have received varied depending on where they sought services. To ensure survivors are able to access the care they need at the right time, this legislation establishes the Sexual Assault Coordinated Community Response Task Force to develop model protocols. The taskforce is directed to develop protocols would be aimed at ensuring that any sexual assault survivor, whether an adult or minor, receives a coordinated community response when presenting for care at any hospital or clinic following a sexual assault.

Among other members from the legislature, state agencies, and various stakeholder groups, several entities are named as participants in the task force, including:

• • Two members representing SANEs, one serving an urban community and one serving a rural community;
  • One representative from WSHA;
  • One representative from the Washington State Medical Association; and
  • One representative from the Washington State Nurses Association.

The task force is directed to research, review, and make recommendations to the legislature on:

• • Best practices for collaborative and coordinated responses to sexual assault victims beginning with their arrival at a hospital or clinic;
  • Gaps in trauma-informed, victim-centered care and services for sexual assault victims;
  • Securing nonstate funding for implementing a standardized and coordinated community response; and
  • Legislative policy options for providing a coordinated community response for victims of sexual assault.

In addition to generating recommendations on the issues above, the task force is directed to collaborate with various entities to implement coordinated community responses consistent with best practices and standardized protocols.

The Task Force is required to meet at least twice a year until December 2022, and must provide reports to the legislature and the Governor by December 1, 2021, and December 1, 2022.

Next Steps

1. WSHA will provide guidance for hospitals to develop the policies and notice required by HB 1016. WSHA strongly encourages hospitals to begin working to understand the major elements of a plan and reach out to their local agency. WSHA will also work to develop a model notice to provide to survivors as appropriate.
2. WSHA will host a joint webinar with the Harborview Center for Sexual Assault to cover recommended approaches to:
   • Planning the transfer of unreported sexual assault kits (SAKs) from hospitals to local law enforcement ahead of January 1, 2021;
   • Redacting information as necessary from unreported SAKs and creating a system to track information that enables survivors who decide to file a report at a later date from the date the SAK was collected; and
   • Best practices for identifying the “applicable local law enforcement agency” for purposes of notifying the appropriate entity to transport and store an unreported SAK collected by a hospital.Once the webinar is scheduled, information will be sent to the same group that received this bulletin.
3. Once the work of the new task force established under SB 6158 gets underway, WSHA will be reaching out to hospital SANE leads to get their expertise on protocols and recommendations.

Background
Most hospitals in Washington State provide sexual assault forensic evidence examinations and collection via trained medical providers, including Sexual Assault Nurse Examiners (SANEs). Specially trained SANE staff are a critical and limited resource in the state and some hospitals may not be able to provide this service due to the significant time and cost associated with specialized SANE training. Whether forensic exams are available at any given time depends on the availability of trained staff. While a SANE may be at the hospital when a patient needs a kit collected, the SANE may be caring for other patients and thus may not be available to provide the service immediately. If a hospital is not able to provide SANE services to a patient, the patient is screened, stabilized and then transferred or referred to a different hospital that provides this forensic sexual assault examinations.

Ensuring sexual assault survivors are connected to timely, appropriate resources
WSHA continues to support efforts to ensure that hospitals can connect survivors with timely, appropriate resources, including sexual assault kit collections. Changes to the law included in HB 1016 are important to ensure hospitals have a plan and policies in place that staff can follow to connect individuals with sexual assault resources. The work that will begin under the task force created in SB 6158 will further support survivors in accessing coordinated community resources.

Ensuring potential sexual assault forensic evidence is stored and handled properly to preserve evidence that can be used in investigations
The statewide Sexual Assault Forensic Examination Best Practices advisory group was established under the Attorney General’s office to make recommendations related to the prosecution of sexual assault investigations, including the storage and retention of sexual assault kits. WSHA has served on this advisory group since its creation.

In 2019, the group made several important recommendations to address gaps in the law regarding the storage and handling of evidence gathered during sexual assault examinations. WSHA supported the recommendations made by the advisory group, which were ultimately included in HB 2318, and advocated in favor of these changes as a step forward in supporting sexual assault survivors.

Prior to this law, “Sexual assault kit” had been previously undefined, and it had not been specified what specific items were or were not included as part of a sexual assault kit. Items like clothing and blood samples were not specified as part of a sexual assault kit, even when collected during a sexual assault forensic exam. In addition, the state’s tracking system for sexual assault kits was not required to track all pieces of potential evidence. This had led to evidence related to the same assault being stored in multiple places. This could result in evidence that is not able to be used during an investigation if a survivor did decide to file a report. Ensuring that evidence is tracked and stored together, by way of defining sexual assault kit to include all items collected during a forensic exam and requiring the state’s tracking system to include information on other materials collected is a critical change to preserve potential evidence if a survivor decides to make a report.

Requiring local law enforcement to transport and store unreported sexual assault kits aligns policy with how reported kits are treated once the potential forensic evidence has been collected. Prior to this change, hospitals have stored many of these unreported kits, but have been running out of space. It was a priority of WSHA to ensure this issue was addressed so hospitals were no longer in the middle, and that an entity with the expertise to determine appropriate jurisdiction for unreported kits is responsible for transporting and storing this important potential evidence.

References

• HB 1016 – Concerning hospital notification of availability of sexual assault evidence kit collection
• HB 2318 – Advancing criminal investigatory practices
• SB 6158 – Concerning model sexual assault protocols for hospitals and clinics
• WSHA’s previous bulletins regarding the moratorium on destruction of unreported sexual assault kits: Bulletin 1, Bulletin 2
• WSHA’s previous Guidance for Hospitals on unreported sexual assault kits collected from April 23, 2019 to June 30, 2020
• HB 1166– Omnibus sexual assault survivor legislation (unreported kits)
• Harborview Center for Sexual Assault Website – including educational and training resources and professional guidelines

WSHA’s 2020 New Law Implementation Guide
Please visit WSHA’s 2020 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.