Welcome to the IAFN SAFE-T-A Webinar

1. Welcome to the IAFN SAFE-T-A Webinar • The audio portion of this meeting is being delivered over a phone connection. *If you have not already done so, please dial 1-888-479-6531 and use 900777 as your entry code. • IAFN requests that you e-mail the names of any non-registered attendees who may be sharing this webinar experience with you so we can track attendance. Please send additional attendee names to INFO@IAFN.ORGtoday. Thank you in advance for your help and cooperation!

2. SAFETA Webinar Series • This project was supported by Grant No. 2005-WI-AX- K004 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

3. A webinar presentation on Victim Privacyfor the International Association of Forensic Nursesby Susan Chasson, J.D., MSN, SANE-AState-wide SANE Coordinator Utah Coalition Against Sexual Assault andJessica Mindlin, Esq.National Director of Training and Technical AssistanceVictim Rights Law Centerwww.victimrights.orgOctober 13, 2009 Preparation of this material was supported in part by VRLC grant number 2004-WT-AX-K062, awarded by the Office on Violence Against Women, U.S. Department of Justice.  The opinions, findings, and conclusions expressed are those of the author(s) and do not represent the official position or policies of the U.S. Department of Justice.

4. Introduction • Who we are • What we do • How we can help • Terminology

5. PRESENTER CONTACT INFORMATION:♦ Susan Chasson, J.D., MSN, SANE-A Email: susanchasson@msn.com Phone: 801-376-6962Victim Rights Law Center ♦ VRLC (Boston Office) 115 Broad Street, 3rd Floor Boston, MA 02108 Phone: (617) 399-6720 Phone: 1-877-758-8132 Email: TA@victimrights.org Web: www.victimrights.org♦ VRLC (Portland Office) 520 SW Yamhill, Suite 200 Portland, OR 97204 Phone: (503) 274-5477 Email: jmindlin@victimrights.org VRLC Toll-free number: 1-877-758-8132

6. Webinar Goals • Increase your understanding of victim privacy • Distinguish between privacy, confidentiality and privilege • Understand the role of informed consent • Identify ways to minimize privacy infringement • Provide practical suggestions and solutions

7. What Do We Mean by “Victim Privacy” and Why is It Important?

8. Why is Victim Privacy Important?

9. “Victim Privacy” • Private information • Confidential information • Information that is protected by an Evidentiary Privilege • Testimonial • Document Production • As health care providers, what protects the privacy of information a victim discloses to you?

10. Federal Privacy Rights • Federal Law • VAWA • HIPAA • FVPSA • VOCA • State Law • Nurse Practice Act • Privilege laws • Individual right to privacy • Victims’ right to privacy • Other state laws • Organizational/Professional/Ethical Obligations • Professional membership • Licensing board requirements, etc.

11. VAWA 2005 • Confidentiality is a grant condition for every state, tribe or territory receiving VAWA $. (ALL States receive VAWA funding) • VSP Grantees are required to protect the confidentiality and privacy of those receiving services • Grantees may not disclose personally identifying information or individual information or reveal individual client information unless: • (a)secure informed, written, reasonably time-limited consent or • (b) release is compelled by statute or court mandate. • If victim is a minor, the consent of a parent or guardian is required. • If victim is unable to consent due to a cognitive disability, the consent of the guardian is required.

12. What Is Personally Identifying Information Or Individual Information? • Information that is likely to disclose the location of a victim of domestic violence, dating violence, sexual assault, or stalking, including: • First and last name; a home or other physical address; contact information (including a postal address, e-mail address, telephone or fax number); social security number, and • Any other information, including date of birth, racial or ethnic background, or religious affiliation, that, in combination with any of the above information, would serve to identify any individual • Must look at facts of each individual case. • Grantees may share: • Non personally identifying data in the aggregate regarding services to their clients • Non personally identifying demographic information in order to comply with federal, state, tribal or territorial reporting, evaluation, or data collection requirements • Law enforcement- and prosecution-generated information necessary for law enforcement and prosecution purposes

13. Releasing Information • Signed Release: • Subject to Informed Consent • Written • Time Limited • Narrow • If information must be released by statute or court mandate: • Must comply with VAWA release requirements: • Make reasonable attempts to notify victim • Take steps necessary to protect the privacy and safety of the persons affected by the release of information

14. SCENARIO • Esmerelda is an agricultural worker who is brought to the hospital by her boyfriend. Her boyfriend tells the triage nurse that Esmerelda does not speak English and that she was raped by her supervisor at work. On the intake form, he lists her religion as “very religious.” • What practical, legal and ethical issues do you need to consider? • Please submit the questions or issues you think need to be addressed.

15. What is HIPAA ? Health Insurance Portability and Accountability Act Congress passed in 1996 Mandate to come up with privacy regulations Rules promulgated by Dep’t of Health & Human Services

16. Who must comply with HIPAA? Health Plans Health Care Clearinghouses Health Care Providers

17. Definition of Health Care Health caremeans care, services, or supplies related to the health of an individual. Health care includes, but is not limited to, the following: (1) Preventive, diagnostic, therapeutic, rehabilitative, maintenance, or palliative care, and counseling, service, assessment, or procedure with respect to the physical or mental condition, or functional status, of an individual or that affects the structure or function of the body; and (2) Sale or dispensing of a drug, device, equipment, or other item in accordance with a prescription.

18. When must a health care provider comply with HIPAA ? When a health care provider transmits specific types of information electronically they become a covered entity under HIPPA. HIPAA is not limited to electronically shared info but to be covered by HIPAA you must be a health care provider and do some specific electronic transactions such as billing. All hospital SANEs would be covered by HIPAA because medicare/medicaid now require electronic billing. But if  you are a private SANE practice that bills only with paper ( for example bills law enforcement directly) you are not covered by HIPAA.

19. How Does HIPAA Effect the Health Care Consumer ? Patient will receive education on privacy rights. Patient will be given access to medical records. Patient will give consent before information is released. Patient will have recourse if privacy protections are violated. Source: Protecting the Privacy of Patient's Health Information HHS Fact Sheet May 9, 2001,HHS Fact Sheet

20. When Can A Health Care Provider Release Information? Consent (implied; contrast with VAWA, which requires informed consent) Authorization Federal or state law mandates release of information

21. Consent to Release Information is Assumed When the Following Occurs Treatment Payment Operating the practice

22. When Does A SANE Need An Authorization? Release Medical Records to: Law enforcement Crime lab Toxicology lab Prosecutor Rape crisis/advocacy Any disclosure to non-health care provider

23. How Long Is An Authorization Effective? Authorization should be time limited. (cf. VAWA) Patient can revoke authorization at any time. Authorization (and any revocation) must be made in writing. Health care provider is not responsible for any release of information prior to the revocation.

24. What Laws Might Be Exempt From HIPAA? Mandatory reporting laws • Child abuse • Elder /Vulnerable Adult Abuse • Infectious Disease Reporting • Injury Reporting

25. How Does HIPAA Effect the Rights of Minors ? If state or federal law gives a minor the right to consent to care, HIPAA does not preempt these laws. If a parent consents to a confidential relationship between a child and a health care provider. When a provider believes a child is at risk for abuse or may be endangered by disclosure. OCR HIPAA Privacy TA 164.506.001 July 6, 2001

26. Does Calling an Advocate Violate HIPAA? Advocates may be called without giving identifying information. Consent should be obtained before advocate enters the room. Can have advocate agency sign Business Associate Agreement. Example can be found at: http://www.hhs.gov/ocr/privacy/hipaa/understanding/coveredentities/contractprov.html

27. SCENARIO • Please read the following scenario and see how many of the questions on the next page you can answer. • Brenda Lee is 15 years old. She has come to the hospital emergency room with her good friend, Diana, who appears to be 19 or 20 years old. • Diana says that Brenda Lee was just raped. • Brenda Lee appears intoxicated (drunk or drugged or both), and is going in and out of consciousness.

28. Please answer the following questions for your jurisdiction: • Is Brenda Lee old enough to consent to any medical care? • Do drugs or alcohol impact her ability to consent? • Does her age impact her ability to consent? • What type of care does she need? • Can Diana consent to care for Brenda Lee? • May you call an advocate? • Will some, all or none of Brenda Lee’s care be confidential? • If not, what has to be reported, and to whom? • What kind of care can you give without Brenda Lee’s consent? • Do any of your answers change if you are funded by the Violence Against Women Act?

29. Informed Consent Concept of Patient Autonomy - “Every human being of adult years and sound mind has a right to determine what shall be done with his own body...” Schloendorf v. Society of New York Hospital

30. Purpose of Informed Consent 1. Protect individual autonomy 2. Protect the patient’s status as a human being 3. Avoid fraud or duress 4. Encourage doctors to carefully consider their decisions 5. Foster rational decision-making by the patient 6. Involved the public generally in medicine Source: Alexander Capron “Informed consent in catastrophic disease research and treatment” 123 U. Penn . L.R. 340 365-76 (1974)

31. Components of Informed Consent • Nature of the procedure 2. Risks and hazards of the procedure (risks of refusal ) 3. Alternatives to the procedure 4. Anticipated benefits of the procedure

32. Exceptions to Informed Consent 1. Patient is unable to consent- unconscious/emergency 2. Risk of disclosure outweighs benefits- this is a very limited exception. 3. Minor Child or Incompetent Adult

33. What Laws Do You Need to Know? Does your state define a standard for informed consent for health care providers? Does your state define who can provide informed consent for an unconscious or incapacitated patient? Does your state define under what circumstances a minor can give informed consent?

34. Privacy and State Laws • Nurse Practice Act • Privilege laws • Individual right to privacy • Victims’ right to privacy • Other state laws

35. Exceptions to Privacy Rights • Mandatory Reporting: • Vulnerable Adults • Victims of certain crimes (e.g., SA, DV, gunshot, etc.) • Minors

36. Mandatory Reporting: • Who is a Mandatory Reporter? • What has to be reported? • To whom, when, where and how much? • Exceptions to reporting obligations?

37. Sexual Assault and Minors – Some Considerations • What you need to know: • Who is a minor and for what purpose? • Minor’s legal right to consent to services ≠ minor has right to have information remain private • A minor is not always a minor • Emancipation • Pregnancy • Marriage • In the military, etc.

38. Types of Care a Minor May Authorize • Mental health • Drug and Alcohol • Emergency medical • SA (6 states codify minor’s right to consent to forensic exam; NY codifies minor’s right to refuse exam) • HIV and other STI testing • Abortion • Pregnancy

39. Summary of Key Points • Know the law in your jurisdiction! • Know how you’re funded and the corresponding privacy laws • Don’t make promises that might not be kept • Anticipate potential but unintended disclosures; make sure victim has appropriate referrals • Review and update agency policies; make sure they comply with current law • No one provider can meet all of a victim’s needs; partner with other community service providers • Ask for advice (ideally before the disclosure occurs!)

40. Resources • Victim Rights Law Center’s national manual, “Beyond the Criminal Justice System: Using the Law to Help Restore the Lives of Sexual Assault Victims -- A Practical Guide for Attorneys and Advocates” at: http://www.victimrights.org/html/manualpdf.htm • 50 State Survey of Mandatory Reporting Laws at: http://www.wcl.american.edu/nic/documents/FiftyStateSurveyofMandatoryReportingMARCH2009.pdf?rd=1 • Mandatory Reporting Laws on Elder Abuse: http://www.abanet.org/aging/about/elderabuse.shtml • Rape and Sexual Assault Reporting Laws: The National for the Prosecution of Violence Against Women http://www.ndaa.org/apri/programs/vawa/state_rape_reportings_requirements.html • http://www.sapr.mil/contents/references/lawsummary.pdf • Mandatory Reporters of Child Abuse and Neglect: Summary of State Laws: Child Welfare Information Gateway http://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.cfm • See “State Policies in Brief” at http://www.guttmacher.org/sections/adolescents.php • Center for Adolescent Health and the Law: http://www.cahl.org/