Section 545.60  Treatment of Sexual Assault Survivors

a)         Every hospital providing hospital emergency services and forensic services to sexual assault survivors shall comply with the federal Emergency Medical Treatment and Active Labor Act and, as minimum requirements for such services, provide, with the consent of the sexual assault survivor, and as ordered by the attending physician, an advanced practice nurse who has a written collaborative agreement with a collaborating physician that authorizes provision of emergency services or who possesses clinical privileges recommended by the hospital medical staff and granted by the hospital, as authorized by the Nurse Practice Act, or a physician assistant who has been delegated authority to provide hospital emergency services and forensic services, the following:

1)         Appropriate medical examinations and laboratory tests required to ensure the health, safety, and welfare of a sexual assault survivor or which may be used as evidence in a criminal proceeding against a person accused of the sexual assault, or both.  Records of the results of such examinations and tests shall be maintained by the hospital and made available to law enforcement officials upon the request of the sexual assault survivor.  (Section 5(a) of the Act) Examinations and tests shall include, but not be limited to:

A)        A general physical examination;

B)        Evaluation and/or treatment for sexually transmitted infections in accordance with the guidelines of the Centers for Disease Control and Prevention titled Sexually Transmitted Diseases Treatment Guidelines, or the standards of the American College of Emergency Physicians titled Evaluation and Management of the Sexually Assaulted or Sexually Abused Patient (see Section 545.25);

C)        Evaluation and possible treatment for HIV exposure in accordance with the guidelines of the Centers for Disease Control and Prevention titled Sexually Transmitted Diseases Treatment Guidelines, or the recommendations titled Antiretroviral Postexposure Prophylaxis After Sexual, Injection Drug Use, or Other Nonoccupational Exposure to HIV in the United States, or the standards of the American College of Emergency Physicians titled Evaluation and Management of the Sexually Assaulted or Sexually Abused Patient. Testing for HIV shall be conducted in accordance with the AIDS Confidentiality Act; and

D)        Pregnancy test for females of childbearing age;

2)         Appropriate oral and written information concerning the possibility of infection, sexually transmitted disease and pregnancy resulting from sexual assault (Section 5(a) of the Act);

3)         Medically and factually accurate written and oral information about emergency contraception; the indications and counter-indications and risks associated with the use of emergency contraception; and a description of how and when sexual assault survivors may be provided emergency contraception upon the written order of a physician, an advanced practice nurse, or a physician assistant (Section 2.2(b) of the Act);

4)         Appropriate oral and written information concerning accepted medical procedures, medication, and possible contraindications of such medication available for the prevention or treatment of infection or disease resulting from sexual assault (Section 5(a) of the Act);

5)         An amount of medication for treatment at the hospital and after discharge as is deemed appropriate by the attending physician, an advanced practice nurse, or a physician assistant and consistent with the hospital's current approved protocol for sexual assault survivors. (Section 5(a) of the Act);  

6)         An evaluation of the sexual assault survivor's risk of contracting human immunodeficiency virus (HIV) from sexual assault.  When HIV prophylaxis is deemed appropriate, an initial dose or doses of HIV prophylaxis, along with written and oral instructions indicating the importance of timely follow-up health care, shall be given to the survivor.  (Section 5(a) of the Act)  In developing policies on risk assessment of HIV exposure and on HIV prophylaxis, hospitals shall consider the guidelines of the Centers for Disease Control and Prevention (CDC) titled Sexually Transmitted Diseases Treatment Guidelines, or the CDC recommendations titled Antiretroviral Postexposure Prophylaxis After Sexual, Injection Drug Use, or Other Nonoccupational Exposure to HIV in the United States, or the Standards of the American College of Emergency Physicians titled Evaluation and Management of the Sexually Assaulted or Sexually Abused Patient;

7)         Written and oral instructions indicating the need for follow-up examinations and laboratory tests one to two weeks after the sexual assault to determine the presence or absence of sexually transmitted disease (Section 5(a) of the Act);

8)         Appropriate referral to a physician.  The survivor shall be referred for follow-up health care and/or monitoring of medication given or prescribed at the time of the initial hospital emergency visit as may be deemed appropriate by the attending physician, advanced practice nurse, or physician assistant;

9)         Referral by hospital personnel for appropriate counseling. (Section 5(a) of the Act)  Initial referral should be to a community-based rape crisis center, if such a center is available, or referral to other counseling shall be provided;

10)         The brochure "After Sexual Assault", published by the Illinois Coalition Against Sexual Assault and the Illinois Department of Public Health, and the pamphlet "Recover/Rebuild:  Crime Victims Assistance", published by the Illinois Office of the Attorney General;

11)         Information on drug-facilitated sexual assault testing, including an explanation of the comprehensive scope of a drug screen and the limited time frame within which evidence can be collected; and

12)         Information regarding evidence collection, and the process and use of evidence in criminal investigation/cases.

b)       Any person who is a sexual assault survivor who seeks emergency hospital services and forensic services or follow-up healthcare under the Act shall be provided such services without the consent of any parent, guardian, custodian, surrogate, or agent. (Section 5(b) of the Act)

c)         The hospital shall develop a uniform system for recording results of medical examinations and all diagnostic tests performed in connection with the examination to determine the condition and necessary treatment of sexual assault survivors. The results shall be preserved in a confidential manner as part of the hospital record of the sexual assault survivor.  (Section 6.1 of the Act)  The medical record shall include the information required in this subsection (c):

1)         The medical record shall indicate if the sexual assault survivor changed clothes, bathed or douched, defecated, urinated, ate, smoked, or performed oral hygiene between the time of the sexual assault and the time of the examination.

2)         The medical record shall indicate presence of all indications of trauma, major or minor, that may be used in a criminal proceeding (e.g., cuts, scratches, bruises, red marks, any minor signs of trauma).  Photographs of indications of trauma may be taken for evidentiary purposes with the written consent of the sexual assault survivor or the survivor's parent or guardian if the survivor is under 13 years of age.  If the survivor is under 13 years of age and the parent or guardian is not immediately available, photographs may be taken and shall be released to law enforcement personnel and State's Attorney staff with written consent of a parent, guardian, or law enforcement officer, or the Department of Children and Family Services.

3)         The medical record shall not reflect any conclusions regarding whether a crime (e.g., criminal sexual assault, criminal sexual abuse) occurred.

4)         Medical history shall include brief, general information concerning possible injury; drug allergies; and, for female patients, a detailed gynecological history, including:  whether the patient knows or believes that she is pregnant, history of prior gynecological surgery such as hysterectomy or tubal ligation, history of contraceptive use, history of cancer, and any prior genital injury or trauma.

5)         The medical record shall indicate the presence of any and all persons during the examination process.

6)         The medical record shall document the compliance with each procedure required by subsection (f) of this Section.

7)         The medical record shall indicate whether a report was filed with the Department of Children and Family Services, or whether the Department on Aging or the Department of Public Health was contacted.

8)         The medical record shall include a completed emergency department record.

9)         The medical record shall indicate whether the Illinois State Police Sexual Assault Evidence Collection Kit was completed.

d)         All medical records for sexual assault survivors shall be maintained through a filing system that allows for immediate accessibility during Department surveys. This filing system may be maintained electronically.

e)         The Illinois State Police Sexual Assault Evidence Collection Kit shall be used in the manner prescribed by the information contained in the Evidence Collection Kit.

1)         With the survivor's consent, the Evidence Collection Kit shall be completed if the survivor presents himself/herself within seven days after the sexual assault.

2)         If the Evidence Collection Kit is not collected by law enforcement promptly after completion, or law enforcement has not yet obtained the survivor's consent to release the Evidence Collection Kit, hospital staff shall store it in a safe location for at least two weeks.

f)          Procedures to ensure the welfare and privacy of the survivor shall be followed and shall include, but not be limited to, the following:

1)         A member of the health care team shall respond within minutes to move the survivor to a closed environment to ensure privacy.  Health care personnel shall refer to survivors by code to avoid embarrassment.

2)         If, for any reason, the survivor is incapable of receiving oral and written information required in subsection (a) of this Section, the information shall be given to the caregiver/guardian.

3)         All unauthorized personnel, including law enforcement personnel, shall remain outside the examination room during the medical examination.  If a survivor who is in the custody of law enforcement officers exhibits behavior that may cause physical harm to herself/himself or hospital staff, the staff shall request that law enforcement officers be posted outside the examination room door.

4)         The hospital shall offer to call a friend or family member and a rape crisis advocate, where available, to accompany the survivor.

g)         Where a minor is the victim of a predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse or criminal sexual abuse, as provided in Sections 12-13 through 12-16 of the Criminal Code of 1961, the consent of the minor's  parent or legal guardian need not be obtained to authorize  a hospital, physician or other medical personnel to furnish medical care or counseling related to the diagnosis or treatment of any disease or injury arising from such offense.  The minor may consent to such counseling, diagnosis or treatment as if the minor had reached his or her age of majority.  Such consent shall not be voidable, nor subject to later disaffirmance, because of minority. (Section 3 of the Consent by Minors to Medical Procedures Act [410 ILCS 210/3])

h)         A sexual assault evidence collection kit may not be released by a hospital without the written consent of the sexual assault survivor.  In the case of a survivor who is a minor 13 years of age or older, evidence and information concerning the sexual assault may be released at the written request of the minor.  If the survivor is a minor who is under 13 years of age, evidence and information concerning the sexual assault may be released at the written request of the parent, guardian, investigating law enforcement officer, or Department of Children and Family Services.  If the survivor is an adult who has a guardian of the person, a health care surrogate, or an agent acting under the health care power of attorney, then consent of the guardian, surrogate, or agent is not required to release evidence and information concerning the sexual assault.  If the adult is unable to provide consent for the release of evidence and information and a guardian, surrogate, or agent under a health care power of attorney is unavailable or unwilling to release the information, then an investigating law enforcement officer may authorize the release.  Any health care professional, including any physician, advanced practice nurse, physician assistant, nurse, or sexual assault nurse examiner, and any health care institution, including any hospital, who provides evidence or information to a law enforcement officer pursuant to a written request as specified in this subsection (h) is immune from any civil or professional liability that might arise from those actions, with the exception of willful or wanton misconduct.  The immunity provision applies only if all the requirements of this Section and Section 6.4 of the Act are met. (Section 6.4 of the Act)

i)          All hospitals that provide emergency medical services to sexual assault survivors shall comply with the Crime Victims Compensation Act, the Consent by Minors to Medical Procedures Act  and any local ordinances, municipal codes, rules, or regulations that may apply to the treatment of sexual assault survivors.

j)          All hospitals shall comply with the reporting procedures for sexual assault survivors required by Section 3.2 of the Criminal Identification Act.

k)         Nothing in this Section creates a physician-patient relationship that extends beyond discharge from the hospital emergency department.  (Section 5(c) of the Act)

l)           The hospital shall take all reasonable steps to secure the patient's written informed consent to or refusal of the examination and treatment.  

(Source:  Amended at 34 Ill. Reg. 12214, effective August 4, 2010)