NY Pub Health L § 2805-I (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2805-I - Treatment of Sexual Offense Victims and Maintenance of Evidence in a Sexual Offense.

§  2805-i.  Treatment  of  sexual  offense  victims and maintenance of evidence in a sexual offense.  1. Every hospital providing treatment  to alleged victims of a sexual offense shall be responsible for:  (a)  maintaining  sexual  offense evidence and the chain of custody as provided in subdivision two of this section;  (b) informing sexual offense  victims  of  the  availability  of  rape crisis  and  local  victim  assistance  organizations,  if  any,  in the geographic area served by the hospital, and contacting a rape crisis  or local  victim  assistance  organization to establish the coordination of non-medical services, including but not limited to transportation within the geographic area served by that organization, upon the conclusion  of initial  medical  services,  free of charge from the medical facility to sexual offense victims who request such coordination and services;  (c)  offering  and  making  available  appropriate  HIV  post-exposure treatment   therapies;  including  a  seven  day  starter  pack  of  HIV post-exposure prophylaxis for a person eighteen years of age  or  older, or  the  full regimen of HIV post-exposure prophylaxis for a person less than eighteen years of age, in cases where it has  been  determined,  in accordance   with   guidelines   issued  by  the  commissioner,  that  a significant exposure to HIV has occurred, and informing the victim  that payment  assistance  for such therapies and other crime related expenses may be available from the office of  victim  services  pursuant  to  the provisions  of article twenty-two of the executive law. With the consent of  the  victim  of  a  sexual  assault,  the  hospital  emergency  room department  shall  provide  or  arrange  for  an appointment for medical follow-up related to HIV post-exposure prophylaxis  and  other  care  as appropriate; and  (d)  ensuring  sexual  assault  survivors  are  not  billed for sexual assault forensic exams and are notified orally and  in  writing  of  the option  to  decline  to provide private health insurance information and have the office of victim services reimburse the hospital for  the  exam pursuant  to  subdivision  thirteen of section six hundred thirty-one of the executive law.   2. Sexual offense  evidence  shall  be  collected  and  maintained  as follows:  (a)  All  sexual  offense evidence shall be kept in a locked, separate and secure area for twenty years from the date of  collection;  provided that such evidence shall be transferred to a new location(s) pursuant to this subdivision.  (b)  Sexual  offense  evidence  shall  include, but not be limited to, slides, cotton swabs, clothing and other items. Where appropriate,  such items  shall  be  refrigerated and the clothes and swabs shall be dried, stored in paper bags, and labeled. Each item of evidence shall be marked and logged with a  code  number  corresponding  to  the  alleged  sexual offense victim's medical record.  (c)  Upon  collection,  the  hospital  shall notify the alleged sexual offense victim that, after twenty years,  the  sexual  offense  evidence will  be  discarded  in compliance with state and local health codes and that the alleged sexual offense victim's  clothes  or  personal  effects will  be  returned to the alleged sexual offense victim at any time upon request. The alleged sexual offense victim shall be given the option  of providing  contact  information  for purposes of receiving notice of the planned destruction  of  such  evidence  after  the  expiration  of  the twenty-year period.  (d)  Until September thirtieth, two thousand twenty-two, or earlier if determined feasible by  the  director  of  budget,  hospitals  shall  be responsible  for  securing long-term sexual offense evidence pursuant to this section, after which such storage shall be  the  responsibility  of  the  office  of victim services. Hospitals may enter into contracts with other entities that will ensure appropriate and secure long-term storage of sexual offense evidence pursuant  to  this  section  until  September thirtieth, two thousand twenty-two.  (e)  Beginning April first, two thousand eighteen, the department, the office of victim services, the division of criminal justice services and the division of state police shall  jointly  study,  evaluate  and  make recommendations  concerning the storage and monitoring of sexual offense evidence for twenty years, including studying options for  the  use  of: state-owned  or  operated  facilities;  facilities  owned or operated by local government or law enforcement agencies; and  facilities  owned  or operated by private entities.  (f)  Between  thirty  and  ten  days  prior  to the transfer of sexual offense evidence to the office of victim services, hospitals shall  make diligent  efforts  to  notify  the  alleged sexual offense victim of the transfer of custody for the remainder of the twenty-year storage period.  (g) On September thirtieth, two thousand  twenty-two,  or  earlier  if determined  feasible  by  the  director  of  budget,  responsibility for long-term storage of sexual  offense  evidence  shall  transfer  to  the office of victim services.  (h)  After September thirtieth, two thousand twenty-two, or earlier if determined feasible by the director of budget,  hospitals  shall  ensure transfer  of  sexual offense evidence collected pursuant to this section to the office of victim services within ten days of collection  of  such evidence, while maintaining chain of custody.  (i)  At  least  ninety days prior to the expiration of the twenty-year storage period for any sexual offense evidence,  the  office  of  victim services  shall  make  diligent  efforts  to  contact the alleged sexual offense victim to notify the alleged  sexual  offense  victim  that  the sexual  offense  evidence will be discarded in compliance with state and local health codes and that the alleged sexual offense victim's  clothes and  personal  effects  will  be  returned to the alleged sexual offense victim upon request.  (j) Notwithstanding  any  other  provision  in  this  section,  sexual offense  evidence  shall  not  continue  to  be  stored  where: (i) such evidence is not privileged and law enforcement requests its release,  in which case the custodian(s) shall comply with such request; or (ii) such evidence  is privileged and either (A) the alleged sexual offense victim gives permission to release the evidence to law enforcement, or (B)  the alleged   sexual   offense   victim  signs  a  statement  directing  the custodian(s) to dispose of  the  evidence,  in  which  case  the  sexual offense  evidence  will  be discarded in compliance with state and local health codes.   3. Upon admittance or commencement of treatment of the alleged  sexual offense victim, the hospital shall advise the victim of the availability of   the   services   of  a  local  rape  crisis  or  victim  assistance organization, if any, to accompany the victim through the sexual offense examination. If after receiving such advice the  sexual  offense  victim wishes  the presence of a rape crisis or victim assistance advocate, the hospital shall contact the appropriate organization and request that one be provided, provided, however, that if in the professional judgment  of the  treating  practitioner  a  delay in treatment is detrimental to the provision of medical treatment, then examination or treatment  need  not be  delayed  pending  the  arrival of such advocate and further provided that the presence or  continued  presence  of  such  advocate  does  not interfere with the provision of necessary medical care to the victim.   4.  No  hospital  or  treating  practitioner  shall be liable in civil damages for failing to comply with the requirements of subdivision  one,  two  or  three  of  this  section  or  acting  in  good faith to provide treatment as provided in subdivision three of this section.   4-a.  On and after April first, two thousand one, a hospital providing treatment to alleged victims of sexual offenses  shall  be  eligible  to receive  from  the  division  of  criminal justice services, at no cost, sexual offense evidence collection kits.   4-b. (a) The commissioner shall, with the consent of the directors  of interested   hospitals  in  the  state  and  in  consultation  with  the commissioner of the division of  criminal  justice  services,  designate hospitals in the state as the sites of a twenty-four hour sexual assault forensic  examiner  program.  The  hospital sites shall be designated in urban, suburban and rural areas to  give  as  many  state  residents  as possible  ready  access to the sexual assault forensic examiner program. The commissioner, in consultation with the commissioner of the  division of criminal justice services, shall consider the following criteria when designating these sexual assault forensic examiner program sites:  (1) the location of the hospital;  (2)  the  hospital's capacity to provide on-site comprehensive medical services to victims of sexual offenses;  (3) the capacity of the  hospital  site  to  coordinate  services  for victims  of  sexual  offenses  including  medical treatment, rape crisis counseling,  psychological  support,  law  enforcement  assistance   and forensic evidence collection;  (4)  the  hospital's  capacity to provide access to the sexual assault forensic examiner site for disabled victims;  (5) the hospital's existing services for victims of sexual offenses;  (6) the capacity of the hospital site  to  collect  uniform  data  and insure confidentiality of such data; and  (7)  the  hospital's  compliance  with  state  and  federally mandated standards of medical care.  (b) Each sexual assault  forensic  examiner  program  site  designated pursuant  to  this  subdivision  shall  comply  with the requirements of subdivisions one, two and three of this section, and shall also  provide treatment to the victim as follows:  (1) The victim shall, absent exigent circumstances, be met by a sexual assault  forensic  examiner  within  sixty  minutes  of  arriving at the hospital, who  shall  be  a  nurse  practitioner,  physician  assistant, registered  nurse or physician specially trained in forensic examination of sexual offense victims and the preservation of forensic  evidence  in such  cases and certified as qualified to provide such services pursuant to regulations promulgated  by  the  commissioner.  Such  program  shall assure  that  such  a specially-trained forensic examiner is on-call and available on a twenty-four hour a day basis every day of the year.  (2) An examination of the victim shall be performed promptly  by  such forensic examiner in a private room designated for such examinations. An obstetrician/gynecologist  or  other appropriate medical doctor shall be readily available to the forensic examiner if there is a need  for  more specialized medical evaluation or treatment.  (3)  Promptly  after the examination is completed, the victim shall be permitted to shower, be provided with a change of clothing, be  informed that  a  rape  crisis or victim assistance organization providing victim assistance to the geographic area served by that hospital  is  available to  provide  transportation  within  the  geographic area served by that organization, upon the conclusion of initial medical services,  free  of charge  from  the  medical  facility, and receive follow-up information, counseling, medical treatment and referrals for same.  (c)  Nothing  in  this  subdivision  shall  affect  the  existence  or continued existence of any program in this state through which a trained  nurse  practitioner,  physician assistant, registered nurse or physician is providing appropriate forensic examinations and related  services  to survivors of sexual assault.   5. The commissioner shall promulgate such rules and regulations as may be  necessary and proper to carry out effectively the provisions of this section.  Prior  to  promulgating  such  rules  and   regulations,   the commissioner  shall  consult  with  relevant  police  agencies, forensic laboratories, rape crisis centers, hospitals, and other such persons  as the  commissioner  deems  necessary.  Such  rules  and regulations shall identify the offenses subject to the provisions of this section, provide a specific definition  of  sexual  offense  evidence  and  require  each hospital  to  contact its local police agency and forensic laboratory to determine their specific needs or requirements.   6. (a) The department, in consultation with the division  of  criminal justice services, the office of victim services, hospitals, other health care providers and victim advocacy organizations, shall publish a sexual assault  victim  bill of rights for purposes of informing sexual offense victims of their rights under state law. Such bill of  rights  shall  be prominently  published  on the department's website, in at least the ten most common languages spoken in this state, and distributed to hospitals as a document which shall be provided to every presenting sexual offense victim. The department may update the bill of  rights  as  necessary  to reflect  changes  in state law and more accurately explain the law. Such bill of rights shall be in  plain,  easy  to  understand  language,  and include the right of the victim to:  (1)  consult  with  a  local  rape  crisis  or local victim assistance organization, to have a representative of  such  organization  accompany the  victim  through  the  sexual  offense  examination, to have such an organization  be  summoned  by  the  medical  facility,  police  agency, prosecutorial   agency  or  other  law  enforcement  agency  before  the commencement of the physical examination or interview, pursuant to  this section, and to have such organization provide transportation within the geographic  area  served  by  that organization, free of charge from the medical facility to sexual offense victims  who  request  such  services upon discharge;  (2)  be  offered  and  have  made  available  at  no  cost appropriate post-exposure treatment therapies, including a seven day starter pack of HIV post-exposure  prophylaxis  in  accordance  with  paragraph  (c)  of subdivision  one of this section and subdivision thirteen of section six hundred thirty-one of the executive law;  (3) a health care forensic examination at no cost and the right to  be notified  of  the  option to decline to provide private health insurance information and  have  the  office  of  victim  services  reimburse  the hospital  for  the examination under subdivision thirteen of section six hundred thirty-one of the executive law;  (4) receive information relating to and  the  provision  of  emergency contraception  in accordance with section twenty-eight hundred five-p of this article;  (5)  be  offered  contact   information   for   the   police   agency, prosecutorial  agency  or other law enforcement agency with jurisdiction over the sexual offense and be informed, upon request of the victim,  of the  date  and  location  at  which such sexual offense evidence kit was assessed for Combined DNA Index System (CODIS) eligibility and analyzed, whether a CODIS eligible profile was developed and whether or not a  DNA match  was  identified,  provided,  however,  that  the  police  agency, prosecutorial  agency  or  other  law  enforcement  agency  serving  the jurisdiction may temporarily delay release of such DNA match information to  the  victim,  prior  to  the  arrest  of  a  suspect alleged to have  committed such offense, if such agency documents in writing and notifies the victim  that  release  of  such  information  would  compromise  the successful investigation of such sexual offense;  (6) be notified between thirty and ten days prior to the transfer of a sexual  offense  evidence  kit  from  the  hospital  to  another storage facility in accordance with paragraph (h) of  subdivision  two  of  this section,  the  right to have a sexual offense evidence kit maintained at an appropriate storage facility  for  twenty  years  from  the  date  of collection,  the  right,  if  not previously consented to, to consent to release the evidence to law enforcement at any time  during  the  twenty years  from collection, and the right to be notified by such facility at least ninety days prior to the expiration  of  the  twenty-year  storage period  in  accordance  with  paragraph  (k)  of subdivision two of this section; and  (7) be notified by  the  prosecutorial  agency  with  jurisdiction  of judicial  proceedings  relating to their case in accordance with article twenty-three of the executive law; and  (8) decide whether or not the victim wishes to report the  offense  to law enforcement.  (b)  Before  a  medical facility commences a physical examination of a sexual offense victim, or a police agency, prosecutorial agency or other law enforcement agency  commences  an  interview  of  a  sexual  offense victim, the health care professional conducting the exam, police agency, prosecutorial  agency  or  other law enforcement agency shall inform the victim of the victim's rights by providing a copy of this sexual assault victim bill of rights and offering to explain such rights.   7. On or before November thirtieth, two thousand two, the commissioner shall make a report to the governor,  the  temporary  president  of  the senate  and  the  speaker  of the assembly concerning the sexual assault forensic examiner program established under subdivision four-b  of  this section. Such report shall include an evaluation of the efficacy of such program  in  obtaining  useful forensic evidence in sexual offense cases and assuring quality treatment to sex offense victims. Such report shall also recommend  whether  this  program  should  be  expanded  and  shall estimate the financial cost, if any, of such expansion.