Who paid for emergency screening and HIV prevention during a Kentucky sexual-assault forensic exam?

Plain-English summary

A Commonwealth's Attorney asked whether Kentucky's sexual assault victim assistance funding could pay emergency-room physician screening, HIV medication, and related care. The Attorney General concluded that basic treatment within a forensic sexual assault examination included an initial emergency physician examination and tests for sexually transmitted diseases, including HIV. It also included HIV post-exposure prophylaxis where appropriate. Under the 2005 budget language discussed in the opinion, the Crime Victims' Compensation Board was to reimburse examination costs that included those services.

The opinion distinguished the forensic exam's basic treatment from medical costs merely incidental to it. It did not say every later treatment or follow-up appointment was automatically covered. It also stated that no charge could be made to the victim for the sexual assault examination, and described the providers' route to seek reimbursement from the Board under the then-applicable claims procedures.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a forensic sexual assault exam include an emergency doctor's initial screening? A: The AG said yes. It treated that examination as basic treatment and potentially part of evidence gathering.

Q: Were HIV testing and prevention medication included?
A: The AG included testing for sexually transmitted diseases, including HIV, and post-exposure prophylaxis where appropriate as part of the forensic exam's basic treatment.

Q: Could the hospital charge the victim for the forensic examination?
A: The opinion quoted KRS 216B.400(9), which barred charges to the victim for sexual assault examinations by the listed facilities, professionals, insurer, or Commonwealth.

Q: Did the opinion promise payment for all follow-up medical care?
A: No. Its reimbursement conclusion addressed the initial screening, disease testing, and appropriate prophylaxis included in basic treatment and evidence gathering; it noted that incidental treatment costs could fall outside the protocol.

Q: What if the dedicated victim assistance fund lacked money?
A: The opinion said KRS 346.200(5) directed payment from the Crime Victims' Compensation Fund when the Sexual Assault Victim Assistance Fund was insufficient for covered claims.

Background and statutory framework

KRS 216B.400(4) required the forensic exam to include “basic treatment and evidence gathering services” and appropriate laboratory tests. The opinion read that language with the state sexual assault medical protocol in 502 KAR 12:010 and the 2005 budget bill's payment rule. It recommended amending 107 KAR 2:010 if its reimbursement rates failed to cover the services that the statute and protocol required.

Citations and references

Statutes: KRS 216B.400(4); KRS 346.200(5); KRS 216B.400(9).

Regulation: 502 KAR 12:010.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_72e0bd4d-02d3-44cd-8b54-48d9fec67650/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_72e0bd4d-02d3-44cd-8b54-48d9fec67650

Original opinion text

OAG 05-010
December 22, 2005
Subject:

Whether the Crime Victim’s Compensation Board
through the Sexual Assault Victim Assistance Fund
may pay for emergency room doctor medical screening fees, HIV medication and follow-up treatment costs for sexual assault victims.

Requested by:

Ray Larson
Commonwealth’s Attorney
22nd Judicial Circuit

Written by:

Jennifer Black Hans
Assistant Attorney General

Syllabus:

Under KRS 216B.400(4) and related statutory authority, a forensic examination of victims of sexual assault shall include basic treatment and evidence gathering services, including an initial examination by an emergency room physician and screening for sexually transmitted diseases, including HIV. As part of the forensic examination, the costs for such basic treatment shall be paid from the Crime Victims’ Compensation Board.

Statutes construed:
KRS 216B.400, KRS 346.050, KRS 346.060, KRS
346.200
OAG cited:

None

Opinion of the Attorney General

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KRS 216B.400 establishes an emergency care assistance benefit
for victims of sexual assault. The benefit extends to cover the costs of
a forensic examination conducted by a physician or sexual assault
nurse examiner pursuant to the statewide sexual assault medical protocol, as promulgated by the Justice Cabinet. KRS 216B.400(4), 502 KAR 12:010. The funding mechanism for this legislative benefit may be found in KRS 346.200, which establishes the Sexual Assault Victim Assistance Fund (hereinafter “SAVAF”] to be administered by the Crime Victims’ Compensation Board (hereinafter “the Board”). KRS 346.200(2) provides that SAVAF may receive “state general fund appropriations, gifts, grants, federal funds, or other public or private funds or donations.” Further, KRS 346.200(5) specifically provides that if the SAVAF has insufficient funds to pay claims for victims of sexual assault as provided under KRS 346.200(4) and KRS 216B.400, “payment shall be made from the Crime Victims’ Compensation Fund.” Payment of forensic sexual assault examinations. Regarding the issuance of payment for a forensic sexual assault examination, KRS 216B.400(8) provides that the Board shall pay for such examinations “at a rate to be determined by the administrative regulation promulgated by the board after consultation with the Sexual Assault Response Team Advisory Committee as defined in KRS 403.707.”1 KRS 216.400(8) also provides that payment shall be made upon the submission of a claim form by the hospital or sexual assault examination facility and the physician or sexual assault nurse examiner to the Board.2

1

107 KAR 2:010 provides the following reimbursement rates: (1) for a physician or sexual assault nurse examiner, $200; (2) for a hospital or sexual assault examination facility for the use of an emergency or examination room, $250; (3) for a hospital or sexual assault examination facility for medications and pharmaceuticals prescribed as a result of the examination and as part of basic treatment, $100. 2

KRS 346.200(4) provides a parallel system of payment for examinations of child victims of sexual assault, requiring the Board to reimburse directly a children’s advocacy center for the costs of child sexual abuse medical examinations.

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However, Kentucky’s most recently enacted budget bill, HB 267
(2005) provides:
Sexual
Assault
Examinations:
Notwithstanding
KRS
216B.400(8), examinations for reported victims of sexual assault
shall be paid by the Crime Victims' Compensation Board in a
manner consistent with KRS Chapter 346, at a rate determined
by the Board. The Board shall reimburse the hospital or sexual
assault examination facility as provided in administrative regulations promulgated by the Board.3 Under KRS 346.060, claims for crime victims’ benefits are filed “by a person eligible to receive an award, as provided in KRS 346.050 or, if such person is a minor, by his parent or guardian.” KRS 346.050(1) provides that the following persons are eligible for awards: (a) (b)

(c)

(d)

A victim of criminally injurious conduct;
A surviving spouse, parent, or child of a victim of criminally
injurious conduct who died as a direct result of such conduct;
Any other person dependent for his principal support upon
a victim of criminally injurious conduct who died as a direct
result of such crime; and
Any person who is legally responsible for the medical expenses or funeral expenses of a victim.

KRS 216B.400(9), which was not suspended under HB 267, provides
that:
No charge shall be made to the victim for sexual assault examinations by the hospital, the sexual assault examination facility, the physician, the sexual assault nurse examiner, the victim’s insurance carrier, or the Commonwealth. Under KRS 216B.400(9), a hospital, sexual assault examination facility, physician or sexual assault nurse examiner is “legally responsible for medical expenses” relating to sexual assault examinations not covered 3

No parallel language regarding KRS 346.200(4) appears in the budget bill.

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by a victim’s insurance carrier. Therefore, any of the foregoing parties
may apply directly to the Board consistent with the procedures required under KRS Chapter 346 and subject to the relevant regulations promulgated by the Board.

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What is included as part of sexual assault forensic examination?
With specific regard to what is included as part of a “sexual assault forensic examination”, KRS 216B.400(4) specifically provides that such an examination shall include “basic treatment and evidence gathering services … and [l]aboratory tests, as appropriate.” (Emphasis added.) Additionally, 502 KAR 12:010 promulgates the Commonwealth of Kentucky’s sexual assault medical protocol, as required under KRS 216B.400(4). The relevant provisions of this regulation are considered below to address the payment for emergency room doctor medical screening fees, HIV medication and follow-up treatment costs for sexual assault victims. Generally, 502 KAR 12:010 §2(6) provides that a sexual assault victim shall be advised that a forensic examination shall be free of charge, but that “costs related to medical treatment may be incurred.” Therefore, truly incidental costs may not fall within the protocol. However, the express language of KRS 216B.400(4) requires a forensic examination to include “basic treatment” of the victim. Further, 502 KAR 12:010 §3, describing the forensic examination, provides that in addition to collecting specified types of evidence, the examiner may collect any “other evidence that could be presented at trial.” It is axiomatic that while an initial emergency room screening may provide basic treatment, it also serves the dual purpose of gathering evidence related to the sexual assault (i.e. bruising on the arms corroborating victim’s statement). Therefore, as an initial examination by an emergency room doctor provides basic treatment to the victim and may be necessary to present evidence at trial, such an examination is part of the forensic protocol. Regarding HIV medication, 502 KAR 12:010 §2(8) provides that sexual assault victims shall be informed of “the need for a physical examination due to the risk of sexually transmitted diseases, pregnancy, injury or other medical problems.” Further, as part of the post-forensic examination procedures, information shall be provided to victims regarding follow-up procedures and appointments regarding sexually

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transmitted diseases (“STD”). 502 KAR 12:010 §4. Finally, the evidence
collected as part of the forensic examination may include any “other
evidence that could be presented at trial.” Certainly, this may include
whether the victim was exposed to an STD. Further, determining the
victim’s exposure to STDs constitutes “basic treatment” under KRS
216B.400(4).
In determining whether this examination protocol may include
HIV medication, it is also significant that the U.S. National Protocol for
Sexual Assault Medical Forensic Examinations (DOJ September 2004)
specifically provides that, while testing and treatment for sexually
transmitted infections (“STIs”) should be considered by the physician
or nurse examiner on a case-by-case basis, if risk is indicated, patients
should receive prophylaxis against STIs. Id. at 49, 105-106. Regarding
the risk of HIV infection, the National Protocol specifically suggests offering high-risk victims HIV post-exposure prophylaxis. Id. at 108. Therefore, based on both the state and national protocols for sexual assault medical forensic examinations, an examination of medical injuries and evaluation and treatment for HIV, including post-exposure prophylaxis, may be considered part of the actual forensic sexual assault exam under KRS 214B.400. To the degree that 107 KAR 2:010 does not provide reimbursement rates sufficient to cover the cost of such testing and medication, the regulation conflicts with KRS 214B.400 and 502 KAR 12:010. Conclusion Accordingly, it is our opinion that the emergency room doctor medical screening fee and testing for sexually transmitted diseases, including HIV testing and, where appropriate, the delivery of post-exposure prophylaxis are included as part of the basic treatment and evidence gathering of a forensic examination under KRS 216B.400(4). Further, under the language of HB 267 (2005), cited herein, reimbursement for forensic examinations that include such “basic treatment” shall be reimbursed from the Crime Victims’ Compensation Board. To the degree that the rates promulgated under 107 KAR 2:010 conflict with KRS 214B.400, we would recommend amending the regulations.

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GREGORY D. STUMBO
ATTORNEY GENERAL

Jennifer Black Hans
Assistant Attorney General