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General Memorandum 11-127

General Memorandum 11-127
GAO Report on IHS and Tribally-Operated Hospitals' Response to Sexual Abuse and Domestic Violence

On October 26, 2011, the Government Accountability Office (GAO) issued a report regarding the ability of Indian Health Service (IHS) and tribally operated hospitals to respond to sexual assaults and domestic violence. The report (GAO 12-29) was mandated by the Tribal Law and Order Act of 2010 (PL 111-211) and is entitled Indian Health Service: Continued Efforts Needed to Help Strengthen Response to Sexual Assaults and Domestic Violence.

The GAO surveyed the 28 IHS and 17 tribally operated hospitals, conducted site visits at a number of the hospitals, and interviewed IHS and tribal law enforcement officials and prosecutors regarding the following:

• The ability of the IHS and tribally operated hospitals to collect and preserve medical forensic evidence involving instances of sexual assault and domestic violence, as needed for criminal prosecution
• What challenges, if any, these hospitals face in collecting and preserving such evidence, and
• What factors besides medical forensic evidence contribute to a decision to prosecute such cases

Of the 45 hospitals, 26 reported that they are able to perform medial forensic exams of sexual assault victims and 19 reported that they refer victims to other facilities. The GAO states that the IHS and tribal hospitals which perform these services have largely developed these capabilities on their own, without IHS direction and that their activities in this area varies with staff availability and capability. The report gives considerable attention to the issue of the coordination – or often lack thereof – between hospitals and law enforcement agencies in preserving evidence necessary to pursue prosecutions. Also detailed in the report is the need for additional training and certification of medical personnel in obtaining and preserving forensic evidence.

IHS Sexual Assault Policy. The GAO report notes the importance of the IHS sexual assault policy, issued in March 2011, regarding how hospitals should respond to adult and adolescent victims of sexual assault. The GAO notes that the policy, which applies to IHS-operated, but not tribally-operated hospitals, faces the following problems with regard to implementation:

• Overcoming long travel distances
• Establishing plans to help ensure that hospitals consistently implement and follow the March 2011 policy
• Developing similar policies for domestic violence and child sexual abuse, and
• Developing sustainable staffing models that overcome problems with staff burnout, higher turnover, and compensation

Tribally operated hospitals may utilize the IHS sexual assault policy, but IHS does not make it part of its compact and contract negotiations with tribes/tribal organizations.

Child Sexual Assault. The GAO report notes the gap in policies with regard to child (as opposed to adolescent) sexual abuse incidents. The Tribal Law and Order Act mandated that IHS develop standardized sexual assault policies and protocols based on a similar Justice Department protocol – but the Justice Department has no such protocol regarding children, thus neither does the IHS sexual assault policy. One of the recommendations of the GAO is that such a policy and protocol regarding child sexual assault be developed.

GAO Recommendations. The GAO makes recommendations for the 28 IHS-operated hospitals:

• Development of an implementation plan for the March 2011 IHS sexual assault policy to support the hospitals and staff in: 1) obtaining training and certification in providing forensic medical exams; 2) obtaining equipment such as cameras needed to collect evidence; 3) providing medical forensic exams on site or at a referral facility within two hours of a patient's arrival; and 4) collaborating with law enforcement agencies and others to create sexual assault response teams and obtaining regular feedback from such stakeholders on evidence collection and preservation
• Development of a policy on how IHS should respond to discrete incidents of domestic violence without a sexual component
• Development of a policy, in conjunction with the Justice Department, for responding to incidents of child sexual abuse
• Clarify whether the IHS sexual assault policy calls for training and certification, or only training, of IHS physicians and physician assistants performing sexual assault medical forensic exams
• Modify the IHS sexual assault policy so that it comprehensively and clearly outlines (1) the process for approving subpoenas and requests for IHS employees to provide testimony in federal, state and tribal courts; and (2) reflects the provisions of Section 263 of the Tribal Law and Order Act of 2010, including that subpoenas and requests not approved or disapproved within 30 days are considered approved
• Explore ways to structure medical forensic activities within IHS facilities so that these activities come under individuals' normal duties or unit's official area of responsibility, in part to ensure that providers are compensated for performing medical forensic services.

The U.S. Department of Health and Human Services generally agreed with the GAO's recommendations as did the state of Alaska. The state of Alaska, responding through its Department of Public Safety, pointed out that the IHS policy on sexual assault does not apply to the IHS-funded hospitals and clinics in Alaska and that the State may need to call upon IHS for technical assistance on these matters. The State noted that it does not have a requirement for certification of sexual assault forensic examiners and that the requirement for such could be potentially limiting. Finally, the state of Alaska strongly agreed that an additional policy specific to child sexual abuse is needed.

The GAO report may be found at http://www.gao.gov/new.items/d1229.pdf.
The IHS sexual assault policy may be found on the IHS website in the Indian Health Manual at Part 3, Chapter 29.

Please let us know if we may provide additional information regarding the GAO report or the IHS sexual assault policy.

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Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com

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