Last month, Times-Picayune reporter Rebecca Catalanello revealed that rape victims in Louisiana often are faced with large bills after undergoing medical forensic exams. Since then, I’ve received many inquiries from media outlets and policy advocates: Why are rape victims on the hook for paying for these exams? Is the practice in Louisiana legal? Is it common practice in the US to bill victims?
What are the answers to these questions? Well, it’s complicated.
Why are rape victims on the hook for paying for these exams?
To answer this question, we must first understand the nature of evidence collection in this case. With rape, the crime scene is the victim’s body, and evidence collection is gathered as part of a medical exam. The combination of activities—both medical care and forensic evidence collection—make up what is called the sexual assault medical forensic exam.
Prior to the Violence Against Women Act (VAWA) of 1994, victims were commonly billed for these exams because they were considered medical procedures. For no other crime was there the expectation that forensic evidence collection might be paid for by victims. But, because these were medical exams, they were perceived differently. VAWA expressly prohibited this practice.
Although the provision of free exams was part of the original VAWA legislation, the law permitted victims’ insurance to be billed as one way this exam could be “free” to the victim. The law also permitted states to provide free exams only if the victim cooperated with law enforcement. Subsequent reauthorizations refined this provision, and localities can no longer condition the exam on a report to the police (VAWA 2005) or bill victims for any out-of-pocket expenses related to the exam, such as copays or deductibles (VAWA 2013).
As a result, states have been left to identify designated sources of funding to cover the costs of the exams, and these payers vary from state to state (for example, victim compensation funds, law enforcement funds, etc.).
It’s also up to the states to define what services are included in an exam and, therefore, what services are covered by the state-identified payers. The federal legislation provides a narrow definition of the exam, stating that, at minimum, it must include:
- Examining physical trauma
- Determining penetration or force
- Interviewing the patient
- Collecting and evaluating evidence
However, many states have gone beyond this definition to include other services. At the same time, the US Department of Justice promotes a voluntary best-practice protocol for exams, which includes recommendations to standardize high-quality victim-centered care around these exams. The protocol posits many services beyond the four that meet the federal guidelines listed above, such as testing and treatment for sexually transmitted infections (STIs) related to the rape, and pregnancy testing.
But the federal definition and the voluntary best-practice protocol do not perfectly overlap. The result—like the variation in who pays for exams across states—is variation in what gets paid for across states. Some states only cover the minimum federal requirements as part of their free exams. Others cover a much wider swath of services. For example, some states cover STI and pregnancy testing and related pharmaceuticals as part of their free exam.
So, is what is happening in Louisiana legal?
The answer is yes, if it is in accordance with the state’s definition of what should be included in a free exam. Whether that is good policy or not is a different question. State-level legislators in Louisiana plan to examine this issue in a hearing on October 20.
Is billing victims a common practice across the country?
We need to think about this two ways. First, are victims erroneously being billed for services that should be paid for by the designated payer as part of the exam in their state? In general, the majority of victims do not seem to be billed erroneously for services that they should receive for free. When they are billed, this may be due to a billing mistake or to a health care provider not knowing who the designated payer is in their state (and they should).
The second way to think about this: Are victims in some states being billed for services that are free to victims in other states? And the answer to that is yes.
The answers to all these questions lead us to a much larger one worthy of consideration: Should the amount of services provided to a rape victim free-of-charge depend on the misfortune of which state she or he happens to be raped in?