The Rape Kit Revenue Stream

The announcement itself was shocking, to say the least, that women who went to a hospital after being raped were subsequently charged for their forensic rape examination.

A.G. Underwood Announces Settlements With 7 New York Hospitals To Stop Illegal Billing Of Rape Survivors For Forensic Rape Examinations

Hospitals Will Pay Restitution to Survivors Plus Costs and Revise Billing Procedures; At Least 200 Rape Kits were Illegally Billed to Rape Victims

The nature of a forensic rape examination is the collection of evidence of a crime. There is a palliative care aspect as well, as there should be, but this isn’t the same as when a mugging victim appears at the emergency room for treatment.

There are similarities with gunshot victims, for whom the bullet is evidence, but the gunshot victim’s medical care needs are life-threatening. That’s not ordinarily the case with a person alleging rape. It’s almost entirely about evidence collection, with two caveats: it usually includes measures to address the possibility of pregnancy and contracting AIDS.

But who pays? Apparently, seven hospitals didn’t really care beyond “not us.” But there’s a law that applies, and what was striking about the announcement was the language, “rape survivors.” Did that mean that anyone who appeared at a hospital alleging rape was covered, or only those whose rape was subsequently proved to have occurred?

As the announcement noted, charging “rape survivors” was unlawful under New York Executive Law § 631(13) (apologies for the length, but I didn’t write the law).

13. Notwithstanding any other provision of law, rule, or regulation to the contrary, when any New York state accredited hospital, accredited sexual assault examiner program, or licensed health care provider furnishes services to any sexual assault survivor, including but not limited to a health care forensic examination in accordance with the sex offense evidence collection protocol and standards established by the department of health, such hospital, sexual assault examiner program, or licensed healthcare provider shall provide such services to the person without charge and shall bill the office directly.  The office, in consultation with the department of health, shall define the specific services to be covered by the sexual assault forensic exam reimbursement fee, which must include at a minimum forensic examiner services, hospital or healthcare facility services related to the exam, and related laboratory tests and necessary pharmaceuticals;  including but not limited to HIV post-exposure prophylaxis provided by a hospital emergency room at the time of the forensic rape examination pursuant to paragraph (c) of subdivision one of section twenty-eight hundred five-i of the public health law .  Follow-up HIV post-exposure prophylaxis costs shall continue to be reimbursed according to established office procedure.  The office, in consultation with the department of health, shall also generate the necessary regulations and forms for the direct reimbursement procedure.  The rate for reimbursement shall be the amount of itemized charges not exceeding eight hundred dollars, to be reviewed and adjusted annually by the office in consultation with the department of health.  The hospital, sexual assault examiner program, or licensed health care provider must accept this fee as payment in full for these specified services.  No additional billing of the survivor for said services is permissible.  A sexual assault survivor may voluntarily assign any private insurance benefits to which she or he is entitled for the healthcare forensic examination, in which case the hospital or healthcare provider may not charge the office.  A hospital, sexual assault examiner program or licensed health care provider shall, at the time of the initial visit, request assignment of any private health insurance benefits to which the sexual assault survivor is entitled on a form prescribed by the office;  provided, however, such sexual assault survivor shall be advised orally and in writing that he or she may decline to provide such information regarding private health insurance benefits if he or she believes that the provision of such information would substantially interfere with his or her personal privacy or safety and in such event, the sexual assault forensic exam fee shall be paid by the office.  Such sexual assault survivor shall also be advised that providing such information may provide additional resources to pay for services to other sexual assault victims.  If he or she declines to provide such health insurance information, he or she shall indicate such decision on the form provided by the hospital, sexual assault examiner program or licensed health care provider, which form shall be prescribed by the office.

What was surprising is that the statute uses the term of art “sexual assault survivor.” There is no definition provided in the paragraph. Section 631 is entitled “awards,” and appears to refer to restitution. Subdivision 1 provides:

1. No award shall be made unless the office finds that (a) a crime was committed, (b) such crime directly resulted in personal physical injury to or the exacerbation of a preexisting disability, or condition, or death of, the victim, and (c) criminal justice agency records show that such crime was promptly reported to the proper authorities…

Does this apply to subdivision 13 as well? The first sentence doesn’t help to clarify:

Notwithstanding any other provision of law, rule, or regulation to the contrary…

Is the requirement that a “crime be committed” to the contrary. It would seem not, but then that means that women appearing for a forensic rape examination would be liable for the cost unless and until it was concluded that a crime was committed.

While it makes abundant sense that the victims of crime, particularly rape where the examination’s principle purpose is the collection of evidence, wouldn’t be charged for it, the policy decision is made by the state but borne by “New York state accredited hospital, accredited sexual assault examiner program, or licensed health care provider.” The question isn’t whether the putative victim should pay any cost associated with the examination, but why the state’s generosity is shifted onto the providers, particularly given that the providers are precluded from seeking insurance reimbursement should the putative victim refuse.

“Survivors of sexual assault have already gone through unfathomable trauma; to then subject them to illegal bills and collection calls is unconscionable,” said Attorney General Underwood. “Hospitals have a fundamental responsibility to comply with New York law. My office will continue to do everything in our power to protect survivors and their rights.”

This is obviously true, and yet there are two unanswered questions, who is a “survivor” and by what authority does the state shift its grace onto the backs of those who provide the services? It’s not that there’s any reason to be particularly sympathetic to hospitals, although individual health care providers have the same duty, but that private entities are conscripted into public service for the sake of “survivors.”

Crime victims certainly deserve to receive the care necessary, but that fails to address the questions raised by Underwood’s press release. Who are “rape survivors” and who pays for the state’s fully appropriate but unfunded mandate?


5 thoughts on “The Rape Kit Revenue Stream

  1. Anonymous Coward

    It seems like all of this could be avoided by writing the law to say hospitals can’t bill patients for forensic medical examinations, period, without all this “survivor” language or crime requirement. Since the only obvious purpose of a rape kit is to collect evidence of a possible rape, why add all the verbiage?

    1. SHG Post author

      Damn good question. I wasn’t entirely surprised to see it in the press release, but I was shocked to see it in the statute. Yet, there is was. I would guess the language used was to pander to those who call crime victims “survivors,” but it makes for messy law and, perhaps, needless confusion.

      1. Pedantic Grammar Police

        You were shocked that politicians passed a poorly worded law? Lobbyists aren’t usually English majors. This law may have been asked for by victim advocates, but it most likely was written by hospital lobbyists.

  2. Mark Creatura

    It wouldn’t be the first unfunded mandate imposed on doctors or hospitals, but this may not be one. Doesn’t the quoted law provide that “the office” shall pay the provider’s fee, up to $800, but not above?

    1. SHG Post author

      That’s a good question on a few levels. First, I read that as applying to “Follow-up HIV post-exposure prophylaxis costs.” I could be wrong about that, but I can’t tell from the wording. Second, is that a reasonable amount for any or all of this? Third, what does it take to get reimbursed, and what if reimbursement is denied? Remember they aren’t victims of a crime at that point.

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