Who Pays for Sexual Assault Medical Forensic Exams?

Brief

Who Pays for Sexual Assault Medical Forensic Exams?

It Is Not the Victim's Responsibility

Abstract

The Violence Against Women Act of 2005 requires that sexual assault victims must not be required to file law enforcement reports in order to receive free exams. This study aimed to examine how states are meeting these goals. We found victim compensation funds are by far the largest funder of exams across the country. In the 19 jurisdictions included in case studies, victims generally received free exams without having to report if they did not want to. However, barriers to even accessing the exam prevent some victims from seeking help.

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If a victim chooses to undergo a sexual assault medical forensic exam (often referred to as a rape kit), it
can be the first step in addressing their medical needs and having evidence collected for a criminal
investigation. It has two major components: medical services and forensic evidence collection. The
medical services are intended to treat minor injuries and concerns around possible pregnancy or sexually
transmitted infections. Serious injuries are cared for separately by medical professionals. Forensic
evidence collection services are intended to build the criminal case through documentation of injuries and
other indicators of force or coercion, such as drugging, and to establish sexual contact and the identity of
the offender through biological evidence. The exam can also serve as a valuable link to additional
assistance such as medical, counseling and advocacy services.

The Violence Against Women Act (VAWA) of 1994 required that as a condition of eligibility for the
federal STOP (Services*Training*Officers*Prosecutors) grant program—a major federal avenue for
funding violence against women programs, services, and criminal justice strategies—the state or another
entity must bear the full out-of-pocket costs for sexual assault medical forensic exams. Although the
provision of free sexual assault medical forensic exams was part of the original VAWA legislation, the law
permitted states to condition free exams based on victim cooperation with law enforcement. Within a few
years after VAWA passed, it became clear that not all victims were being provided free exams and that, in
many places, victims were required to report assaults to police before gaining access to exams.
This was amended in VAWA 2005 to provide that the state has to ensure the exam is paid for
regardless of whether the victim reports to law enforcement or participates with the criminal justice
system. States were given until January 5, 2009, to meet this federal requirement, though some had
already had systems in place.

The Urban Institute, George Mason University, and the National Sexual Violence Resource Center
collaborated to learn about the payment policies and practices that have been set up to address this
requirement. During this study, we learned several things:

  • Victim compensation funds are by far the largest designated source of funds to pay for medical
    forensic exams across the United States, and compensation fund administrators are most likely to be
    the designated paying agency (whether using compensation funds or a special funding source). Twothirds
    of states use compensation funds to pay for at least some exams, and more than one-third use
    only these funds to pay for exams. No other funding source is tapped so heavily for this purpose.
  • STOP funds are the funding source least likely to be designated to cover exams. STOP administrative
    offices are the least likely to pay bills. This is surprising, because the state's STOP program eligibility
    is at stake when the VAWA 2005 requirement is not met.
  • Sufficient funds to pay for exams are a major concern. Although many areas reported seamless
    payment systems at the time we collected data, worries over money remained. The level of continued
    funding for designated payers to cover the costs of exams each year and caps imposed on payments to
    providers might jeopardize these seemingly successful systems.

Who Pays?

Table 1 shows designated funding sources and the agencies that administer those funds to cover the costs
of medical forensic exams in the 50 states and the District of Columbia.1 As we collected the data for this
study, it became clear that when we asked about exam payment, some respondents answered with who (or
which agency) paid the bills, while others answered with which funding sources were used. As a result, we
take special care to describe both designated funding sources and designated payers. Because some states
use a combination of funding sources—or blended models of payment—there are more than 51 entries in
the table. The bold numbers in the bulleted list, representing the funding-source designees, total 51.

Exhibit 1

Here is what we found:

  • Thirty-four states use victim compensation funds distributed by the compensation fund administrator
    to pay for exams or parts of exams.

    • 19 of those only use victim compensation funds.
    • 10 combine both compensation funds and special funds (e.g., a state budget line item specific to
      exam payment). Sometimes these funds are kept distinct and tracked separately; in other cases,
      there is no distinction, and the two sources are simply combined and used to cover the costs of
      exams as needed.
    • 6 states use blended models to pay for exams, five of which involve victim compensation
      administrators and/or funds. For example, some may use law enforcement or prosecution funds
      for victims who report their assaults, but use compensation or special funds for nonreporting
      victims. Another example is states that use one funding source (e.g., law enforcement) for the
      forensic portion of the exam and another funding source (e.g., victim compensation funds) for the
      medical portion of the exam.
  • Eleven states use law enforcement or prosecution funds administered by those agencies.
    • 7 of those states only use law enforcement or prosecution funding. The other four use such
      funding in blended models, so these sources are not paying for medical portions of the exam (in
      some cases) or for exams for nonreporting victims (in other cases).
  • Three states use a county-by-county model whereby individual localities designate funding sources
    and payment agencies. Thus, in some counties in these states, law enforcement and/or prosecution
    funds may be designated for exams, as well as county departments of health or social services.
    Regardless of the funding source designated, county payers may vary based on specific local
    arrangements regarding how these exams get paid. For example, a county's prosecution agency may
    contract with the local sexual assault nurse examiner (SANE) program to provide payments to
    providers for exams, as is the case for a county within one of our case-study states. In this case, the
    source of exam funding is prosecution and the independent SANE program is the payer that responds
    to bills submitted by hospitals and pays its own staff as appropriate.
  • Three designate special funds only to cover the costs of exams (administered by various agencies).
  • Two designate monies from state departments of human services, health, and/or mental health.
  • Two states designate STOP funds to cover exams.
    • 1 uses only STOP funds to cover the costs. The other uses STOP funds in a blended-funding
      model.

What Is Paid For?

As defined in VAWA 2005, an exam should at a minimum include (1) examining physical trauma, (2)
determining penetration or force, (3) interviewing the patient, and (4) collecting and evaluating evidence.
In practice, each state (or local jurisdiction, in the case of non state-level paying systems) decides what it
will cover as part of the free exam. Some states cover only what is required by federal mandate, and other
states provide more free services to victims.

We took a closer look by learning what is happening in six states across 19 jurisdictions that represent
various models of funding sources and payers. We conducted case studies in each jurisdiction by
interviewing local stakeholders, including law enforcement personnel, prosecutors, community-based
victim service agency staff, SANEs, and other hospital billing personnel, as well as conducting focus
groups with sexual assault victims.

  • Five states used statewide mechanisms of payment for exams.
    • Three case-study states designated victim compensation funds to cover the cost of exams
      administered by the fund administrator.
    • One designated STOP funds administered by a grants administration agency.
    • One designated other state-level funding administered by the statewide victim service agency.
  • The sixth state used a county-determined model for which most counties, although not all, designated
    either law enforcement or prosecution funds to pay for exams administered by various agencies. Some
    large-population counties designated other funding streams, such as special line items in county
    budgets or the department of human services. Therefore, some site respondents in this state
    estimated that though more than half of counties in the state designated prosecution or law
    enforcement funds to pay for exams, the vast majority of exams were paid by non-criminal-justice
    agency staff. This was because the most populous counties paid for exams through agencies other
    than criminal justice ones.

All six case-study states cover forensic evidence collection procedures, which often includes facilities'
fees, emergency room triage, emergency room doctor fees, SANEs' fees, colposcopy and endoscopy, and
other photographic imaging. In addition, all six states cover testing for pregnancy and sexually
transmitted infections, and five cover treatment and prophylaxis for pregnancy and sexually transmitted
infections. Two states cover prophylaxis for HIV: one covers the first three days of the treatment, and the
other covers the treatment only under certain circumstances. States cover ambulance fees and alcohol and
drug testing under certain circumstances. In one state, testing for drug-facilitated rape requires approval
from a prosecutor to be covered by the designated payer.

Beyond the services stated above, states cover other services in varied ways or not at all. Only one
case-study state routinely covers testing or treatment for injuries (e.g., X-rays, computed tomography
scans [CT or CAT scans], treatment for broken bones) that occurred during the assault, but only a small
portion. Another state covers treatment of injuries only under certain circumstances.

In this state and others, the remaining costs for these services are paid in several ways. The victim's
insurance, if she has any, might be billed for those additional treatments. Victims can also access
compensation funds to cover other medical interventions if they have reported the assault to the police
(though the victim's insurance still might be billed because victim compensation is the payer of last
resort). In some states, having had an exam, regardless of whether the assault is reported to the police,
satisfies the condition to qualify for compensation. Similarly, as is the situation in one case-study state,
health care providers that perform exams are considered adjunct criminal justice agencies; therefore,
having an exam meets the condition of cooperation with the criminal justice system to qualify for
compensation. In addition, many respondents across case-study states indicated that some hospitals
typically absorb any remaining cost of the exams and medical treatments as part of their community
service efforts. In one state, respondents said this could be between $700 and $2,500 for every exam.

Four case-study states had specified maximum amounts (payment caps) the designated payer would
provide for allowable exams services. These caps were either overall total amounts for all allowable services (e.g., a maximum payment of $750 or $1,200) or specific caps for specific services (e.g., $150 for
medical services). According to site-level respondents, exams often cost more than the payment caps.
With prohibitions in some states against billing the victim's insurance (either at all or for the balance of
the bill), the exam provider is faced with the choice of covering the remaining costs or billing victims for
services specified in state legislation as part of an exam. Based on feedback from respondents in the casestudy
states, victims are typically not being billed for the uncovered costs of the services specified as part
of the exams or covered by the public payer under state statutes. However, they might be billed for other
services that are not covered by the public payer as specified in state statutes. This distinction may be lost
on victims—a bill is a bill.

In addition, in the case-study state employing a county-administered payment program, individual
counties negotiated designated funding sources and payers, as well as the particular services that are
covered for an exam payment. The counties must cover at least what is required by state statute
(doctor/SANE fees, facilities' fees, emergency room doctor triage, colposcopy, endoscopy, pregnancy
testing, and STI testing); some counties have negotiated additional services to be included in standard
exam payments (see Negotiating Medical Forensic Exam Payment box). Thus, victims in some portions of
the state have many more services paid for via designated exam payers than do victims in other portions
of the state.


Negotiating Medical Forensic Exam Payment

One county in the county-administered case-study state appears to have an approach to medical forensic exam payment that
focuses primarily on the victims' needs. The designated payer (a government-based victim agency) negotiated a payment
process with the local hospital that conducts all the MFEs in that region through a hospital-based SANE program. The contract
between the county and the hospital is that the county will pay for all reasonable services conducted during an MFE, some of
which are not legally required to be paid, and the hospital will give the county a 50 percent discount on all such services. Thus,
the county pays for 50 percent of the initial exam, testing, and services provided during the first visit to the program. In
addition, the agreement includes payment for one follow-up visit, up to $500. The hospital representatives reported they write
off about $500 to $700 per exam as a result of this agreement; however, there are limitations to this agreement. The county
will not pay for victim injuries and the cost of a hospital stay. When this occurs, either the victim's insurance is billed or the
hospital writes off the additional treatment costs.


Are Funding Levels High Enough?

A common theme that we heard in our case studies was that funds available for exams are frequently
insufficient. Whether federal, state, local, or a combination of these monies are used, funds allocated for
exam payment may be exhausted, so funds must be obtained from other sources to cover obligations. For
example, one state's annual allocation for exam payment covered only 75 percent of the funds needed, so
additional funds had to be reallocated.


Voices of Victims: Importance of Free Exams

"I was told that it would be paid for by the state; that it wasn't going to be no cost at all to me, and that was such a big relief.
That was such a big burden."

"I love that they did everything free, and that they [addressed…] STDs and HIV and AIDS and whatnot, and checked for all
that, and I think that was great."

"Where I went, they had a contract with the state where I never paid for the exam . . . They mentioned that there was no cost,
like I don't have to pay for it."

"I was prepared to pay for whatever it cost. But they didn't bill me."


To spread funds as far as possible, states have set caps on provider payments. The caps may be a flat
fee per exam, regardless of services provided, or they may be set fees for each service, requiring itemized
bills. Whichever cap system was used, we frequently heard that these caps often fall far short of covering
providers' actual expenses. Exam providers said shortfalls range from several hundred to several
thousand dollars per exam, depending on the services provided and the area of the state (providers in
rural areas with lower pay scales and other operating expenses may have more of their expenses covered, even within payment caps). Some providers bill the victim's insurance (when she or he has insurance) to
make up the shortfalls, but many simply write off these costs and absorb the losses. In the short term, this
practice spreads state or local funds to provide at least partial coverage for a larger number of exams than
could be paid at full coverage levels; however, the potential long-term consequences may be dire. It is
difficult for a health care agency, even a nonprofit, to continue providing services on which they take a
financial loss. In addition, other providers may be discouraged from offering this service when they stand
to lose money each time they provide it.

What Does It Mean to Have Crime Victim Compensation as
the Primary Funder of Exams?

During our discussions with case study respondents, we found that there are distinct advantages to having
victim compensation programs pay for exams. For one, compensation programs already evaluate and pay
claims for victims' crime-related expenses, including medical expenses, and are well positioned to expand
this responsibility to exam expenses. These programs have the staff, systems, and procedures in place. As
the compensation administrator in one state put it, "the fix was in," and the choice of compensation was
inevitable because of the efficiency of using a system already in place rather than building a new one from
scratch.

Another advantage is that use of compensation is a very effective way to leverage state funds to attract
federal funds. The Office for Victims of Crime in the US Department of Justice distributes federal Crime
Victim Funds allocations to state victim compensation programs on a 60 percent matching basis, so every
dollar of state funds is matched in a future year with 60 cents of federal funds. Thus, 38 percent of all
funds spent by states on compensation are federal funds. The more of its own funds a state spends, the
more federal money it brings in. Increasing total compensation spending by paying for exams increases
federal allocations to match state dollars spent. States that use compensation funds for exams expand, on
average, about 15 percent of their total compensation payments on exams.2

However, adding exam payments to compensation programs' responsibilities does not necessarily
increase state spending on compensation. Funds are stretched thinner if compensation programs are
expected to pay for exams in addition to all their other obligations, using current funding levels rather
than receiving an additional allotment of state funds to cover exam costs (which is more often the case).
In fact, personnel in several states reported that their compensation funds are stretched, and it can be
difficult to pay for exams in addition to other services. This produces a situation in which funds spent on
exams cannot be spent on other services to victims, effectively pitting obligations against each other in
competition for scarce resources.

This brings up a philosophical objection to the use of victim compensation funds for medical forensic
exams that was discussed during our case studies. Victim compensation is intended to pay for services
that directly benefit victims. These victims have most often been subjected to violent crimes, including
sexual assault, as well as physical assault, domestic violence and stalking, homicide, child physical and
sexual abuse, drunk driving, and robbery. The most common types of expenses compensated are medical
and dental services, mental health counseling, lost wages, and funeral or burial expenses. It is clear that
the medical services provided in an exam directly benefit victims and are in keeping with the mission of
compensation. Further, the exam can serve as an important link to additional medical services as well as
referrals to counseling, advocacy, and other services to directly benefit victims.

However, some have questioned—through this study and otherwise—whether funds intended to
benefit victims should be used to pay for forensic evidence collection intended to build a criminal case. Is
forensic evidence collection a benefit to victims, or is it a benefit to the justice system? Victims who have
had negative experiences with the justice system might say that it is no benefit to victims at all. No other
evidence collection activities (such as autopsies, crime scene processing, and ballistics analysis) are paid
for with funds meant for services to victims. When compensation funds are tight and every dollar spent on
forensic evidence collection cannot be spent on services that directly benefit victims, the issue moves
beyond the philosophical to the very practical.

What Should Be Done?

These findings lend themselves to implications for policy and practice in several ways, including the
following:

  • Ensure funding levels are adequate for designated payers.
    • Funds dedicated to payment of medical forensic exams should be provided whenever possible.
      In states that use compensation funds to pay for all or some portion of exams, it is important to
      ensure that this obligation does not compete with funding for other services to victims. When
      compensation funds are tight and every dollar spent on forensic evidence collection cannot be
      spent on other services to directly benefit victims, the issue of whether exam payment is a suitable
      use of compensation funds deserves consideration.
  • Routinely examine if payment levels or caps imposed on payments to providers are adequate. The
    cost of an exam can vary throughout a state for various reasons. In states that impose a cap on the
    amount paid for an exam, hospitals in certain geographic areas may often provide these services at a
    loss. Routinely conducting statewide reviews (e.g., surveys and audits) to ensure that payment levels
    are adequate is important.
  • Consider exploring ways to use law enforcement and prosecution funds to pay for medical forensic
    exams for victims while preserving the smooth operations that statewide payment procedures for
    providers seem to afford. Our data show that very few states use law enforcement or prosecution
    funds to cover the costs of medical forensic exams. Given that these agencies benefit from the
    evidence collection to build a criminal case, it may make sense to explore ways to use such funds for
    medical forensic exams. For example, statewide agencies that have experience in providing payments
    such as these (such as compensation administrators) could be provided funding by criminal justice
    agencies to pay for medical forensic exams, without having to use designated crime victim
    compensation funds.
  • Train medical providers and hospital personnel on the VAWA 2005 requirement and the states' or
    localities' process for paying for medical forensic exams. When we heard about challenges related to
    victims being billed, they typically stemmed from misunderstandings on the part of hospital and
    administrators about who should be billed. Training this group on payment policies and practices
    might prevent future problems.
  • Consider broadening definitions of what should be paid for as part of the medical forensic exam
    process. The services covered as part of an exam vary widely from state to state, and in some cases
    from jurisdiction to jurisdiction. States and localities that employ narrow definitions of what should
    be paid for through designated payers might consider expanding their covered services, perhaps
    including treatments for pregnancy (e.g., emergency contraception), sexually transmitted infections
    and HIV (e.g., screening, testing, prophylaxis, and counseling), and injuries.

Notes

1. Data for this table were compiled via surveys conducted with State STOP administrators, representatives from state-level sexual
assault coalitions and state victim compensation fund administrators. In some cases, we did follow-up phone calls to states where
responses were unclear. Additional sources of information include the Indiana Victim Compensation survey of state fund
administrators (unpublished data) and AEquitas' report, Rape and Sexual Assault Analyses and Laws (Washington, DC:
AEquitas, 2013).

2. "Office of Victims of Crime," Office of Justice Programs.


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