BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 50 (Corbett)
As Amended April 13, 2009
Hearing date: April 21, 2009
Government Code; Penal Code
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SEXUAL ASSAULT VICTIMS:
PAYMENT OF EXAMINATION COSTS
HISTORY
Source: Alameda County District Attorney
Prior Legislation: AB 506 (Maze) - Ch. 535, Stats. 2003
AB 1860 (Migden) - Ch. 382, Stats. 2002
SB 892 (Seymour) - Ch. 812, Stats. 1985
Support: Peace Officers' Research Association of California;
Planned Parenthood Affiliates of California; Alameda
County Board of Supervisors; California District
Attorneys Association
Opposition:None known
KEY ISSUE
SHOULD THE LAW SPECIFICALLY STATE THAT A SEXUAL ASSAULT VICTIM SHALL
NOT BE CHARGED FOR THE COSTS OF AN EXAMINATION FOR EVIDENCE OR FOR
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MEDICAL TREATMENT PURSUANT TO A STATUTORILY SPECIFIED PROTOCOL?
PURPOSE
The purpose of this bill is to specify that a sexual assault
victim shall not be charged for the costs of a forensic
examination for evidence or for medical treatment for the
assault, as specified.
Existing federal law includes the Violence Against Women Act
(VAWA), which establishes an office within the Department of
Justice to administer the Act, including the Services-Training
Officers-Prosecutors (STOP) grant program. (42 USCA 3796.)
The Office shall have authority over all grants,
cooperative agreements, and contracts pursuant to VAWA.
The Office shall develop policy, protocols, and
guidelines for programs receiving grants under the Act.
(42 USCA 3796gg0b.)
Existing federal law bars a state from receiving a VAWA grant
unless state law provides as follows:
A sexual assault victim shall not be charged for
forensic and medical examinations, as specified.
A victim shall not be required to seek reimbursement
from his or her insurance carrier.
The requirement can be met if the state provides for
victim reimbursement for medical costs, as specified, state
law can place no limit on the amount of reimbursement and
the state must provide reimbursement within 90 days of
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receipt of notice of the expense.<1>
A sexual assault victim shall not be required to
participate in the criminal justice system in order to
receive a forensic medical exam or to receive reimbursement
for the exam. (42 USCA 3796gg-4.)
Existing law creates the Victims of Crime Program, administered
by the California Victim Compensation and Government Claims
Board,<2> to reimburse victims of crime for the pecuniary losses
they suffer as a direct result of criminal acts.
Indemnification is made from the Restitution Fund, which is
continuously appropriated to the California Victim Compensation
and Government Claims Board for these purposes. (Gov. Code
13950-13968; note that 13969 and .2, .5, and .7 related to a
one-time 9/11/01 payment and are repealed effective 1/1/04.)
Existing law authorizes reimbursement to a victim for "[t]he
medical or medical-related expenses incurred by the victim?."
(Gov. Code 13957, subd. (a)(1).)
Existing law provides that the total award to or on behalf of
each victim or derivative victim may not exceed $35,000, except
that this amount may be increased to $70,000 if federal funds
for that increase are available. (Gov. Code 13957, subd.
(b).)
Existing law authorizes the board to "establish maximum rates
and service limitations for medical and medical-related
services, and for mental health and counseling services ?"
(Gov. Code 13957.2.)
Existing law provides that a designated state agency, currently
the Office of Emergency Services, shall establish a protocol for
---------------------------
<1> California law on victim reimbursement does place limits on
the amount of reimbursement a victim can receive and payments
under the program can be made more than 90 days after
submission.
<2> This entity was formerly known as the State Board of
Control. (Govt. Code 13900 amended by AB 2491 - Ch. 1016,
Stats. 2000.)
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the examination and treatment of victims of sexual assault and
attempted sexual assault, including child molestation, and the
collection and preservation of evidence therefrom. (Pen. Code
13823.5.)
Existing law provides that the protocol for examination and
treatment of sexual assault victims shall include:
Report of suspected child sexual abuse to law
enforcement authorities.
Obtaining consent for examination, treatment of
injuries, evidence collection, and for the photographing of
injuries.
Patient history of sexual assault and other relevant
medical history.
Physical examination for evidence of sexual assault.
Collection of evidence and other medical specimens.
Preservation and disposition of physical evidence.
(Pen. Code 13823.7.)
Existing law provides that a reference specimen -- such as hair,
blood and saliva for genetic marker typing -- is a standard from
which to obtain baseline information. (Pen. Code 13823.11,
subd.(g)(2).)
This bill states that a victim of sexual assault shall not be
charged or required to seek reimbursement for the costs of a
forensic exam and medical treatment for the assault.
This bill provides that bills for the cost of medical treatment
for sexual assault victims, whether performed as part of a
forensic exam or separately, shall be submitted to the
Government Claims and Victim Compensation Board for payment.
This bill states, in a new section of the Government Code
chapter concerning compensation for crime victims, that "the
[victims compensation] board shall pay claims submitted by
medical providers for the costs of medical examinations and
treatment for victims, unless an alternative source of payment
is available."
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This bill states that a sexual assault treatment provider shall
follow minimum standards for medical examinations and treatment
of sexual assault victims, including victims of child sexual
abuse.
This bill provides that each sexual assault victim "who consents
to a medical examination, whether in connection with a forensic
examination, shall have reference examinations taken, except
where he or she specifically objects thereto."
This bill makes technical and conforming changes in definitions
and terms relevant to examinations and treatment of sexual
assault victims.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<3>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
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<3> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
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issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<4>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
In 2005 the federal government passed the Violence
Against Women Act (VAWA) Reauthorization. VAWA
requires every state to certify that victims of sexual
assault do not have to cooperate with law enforcement
to be provided a forensic exam and those victims can
not be billed, directly or indirectly, for their
medical exams or treatment.
SB 50 is needed to bring California in compliance with
federal law and to maintain the $13 million we receive
annually from the federal government, as well as the
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<4> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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additional $8 million we are expecting this year. SB
50 clarifies that a victim of sexual assault can not
be billed directly or indirectly for forensic or
medical exams and treatment.
California has an estimated 9,700 reports of sexual
assault annually. This number is not decreasing; we
are seeing an increase in these reports. We need to
make sure that our victims are protected and receive
the needed medical services without the worry of
payment.
2. The Federal Violence Against Women Act (VAWA) - Background of
the Law and Federal Grants to Fund State Programs
The Violence Against Women Act (VAWA) was enacted in Congress in
1994. It has been reenacted in 2000 and 2005. According to the
(U.S.) Department of Justice, the intent of VAWA is to "remedy
the legacy of laws and social norms that serve to justify
violence against women. Since the passage of VAWA, there has
been a paradigm shift in how the issue of violence against women
is addressed." In 2000, VAWA expanded or created programs for
sexual assault victims, dating violence victims and battered
immigrants. Domestic violence victims who fled across state
lines were allowed to obtain custody orders in their new states.
In 2005, VAWA was expanded to include court training, child
witness and culturally specific programs. Expansions of VAWA
had generally been done to reach underserved populations.
The initial VAWA legislation established the Office on Violence
Against Women (OVW) in the Department of Justice. According to
the Department of Justice, "OVW administers financial and
technical assistance around the country to facilitate"
programs and practices to end or limit sexual assault, domestic
and dating violence, and stalking.
VAWA effectively set national standards for state and local
government responses to sexual assault, domestic violence and
related societal ills. These standards maintained or enforced
in significant part through conditions on grants of federal
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funds to states, local governments, tribal entities, non-profit
organizations and even law schools.
The STOP (Services-Training-Officers-Prosecutors) grants under
VAWA are essentially the subject of this bill. Each state
receiving a STOP grant must allocate the funds in this manner:
25% to law enforcement; 25 to prosecution; 5% for courts; and
30% for victim services. In order to receive STOP funds, the
state or another governmental entity must bear "the full
out-of-pocket cost of forensic exam for victims of sexual
assault." The state or local entity may not condition receipt
of an examination on cooperation by the victim with law
enforcement. (42 U.S.C. 3896gg-4; DOJ, OVW website.)
3. Suggested Amendment to Clarify that Sexual Assault Victims
Shall not be Charged for Forensic Examination or Medical
Examination and Treatment for the Assault
Background Concerning Suggested Amendment
As noted above, substantial grants of federal funds for sexual
assault prosecution and prevention (STOP) programs are available
only if a state receiving the money complies with specified
rules. The most important requirements for STOP grant are the
following: The state must not require sexual assault victims to
cooperate with law enforcement as a condition of receiving an
examination and treatment for sexual assault. The state must
prohibit medical providers or a local government entity from
directly or indirectly billing sexual assault victims.
The bill, as amended on April 13, 2009, provides that bills for
forensic examinations are the responsibility of local government
- essentially law enforcement. The bill then states that bills
for medical examination and treatment of a sexual assault victim
shall be submitted to the Victims Compensation and Government
Claims Board (CVCGB). The bill does not unambiguously state
that victims shall not be required to submit bills for treatment
to the CVCGB.
Text of Suggested Amendment to Clarify that a Victim Shall not
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be Directly or Indirectly Billed for a Sexual Assault
Examination and Treatment
The author may wish to consider amending the bill to clearly
state what is required by federal law in order to make the state
eligible for federal STOP funds:
On page 3, strike lines 1-3 and insert:
The costs of medical examination or treatment, whether
performed as part of a forensic examination or
separately, shall not be charged directly or
indirectly to the sexual assault victim, including
through the victim's insurance carrier. Bills for
medical examination and treatment shall be paid by the
[CVCGCB] . . . .
The amendments intentionally do not state which entity would
submit bills for medical examination and treatment of sexual
assault victim to CVCGCB. In discussions with interested
parties, Committee staff has been informed that billing
practices vary from county to county. Some counties have long
handled the billing processes for examination and treatment of
sexual assault victims. Those counties would not need to
substantially change existing practices under this bill.
SHOULD THE BILL BE AMENDED TO MORE CLEARLY STATE THAT SEXUAL
ASSAULT VICTIMS SHALL NOT BE DIRECTLY OR INDIRECTLY BILLED FOR
FORENSIC AND MEDICAL TREATMENT FOR THE ASSAULT?
4. Victims of Crime Program Issues
Applicable law provides that victims may be reimbursed for the
costs of medical care received as a direct result of a crime of
violence, including sexual assault. (Gov. Code 13957, subd.
(a)(1).) The victims compensation board may sets on services
for which reimbursement is provided and may set maximum billing
rates. (Gov. Code 13957.2.) According to board personnel,
the current reimbursement rate is the MediCal payment rate, plus
20%.
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This bill includes a provision stating that the board shall pay
claims submitted by medical providers for the costs of medical
examination and treatment of sexual assault victims, unless an
alternative source is available. It appears that in order to
receive federal grants for sexual assault response programs, an
alternative source of payment for medical treatment of sexual
assault victims cannot be the victim or the victim's insurance
carrier.
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It thus appears that a local government would be the only likely
alternative source of payment for medical treatment costs.
Interested parties have stated that under current practice,
medical providers often submit medical treatment bills to local
law enforcement in addition to bills for forensic
(prosecution-related) examinations.
Personnel from the Victims Compensation Board have raised
questions about how the board would confirm that a bill
submitted by a medical provider was truly for medical treatment
of a sexual assault victim. Medical privacy laws would likely
prohibit submission of medical records - charts, interviews,
clinical findings - to document the claim, unless the victim
authorized release of the information.
DOES THIS BILL REQUIRE PROVIDERS OF MEDICAL CARE FOR SEXUAL
ASSAULT VICTIMS TO SEEK COMPENSATION DIRECTLY FROM THE VICTIMS
OF CRIME FUND?
CAN MEDICAL PROVIDERS SUBMIT BILLS FOR THE TREATMENT OF SEXUAL
ASSAULT VICTIMS TO A LOCAL GOVERNMENT ENTITY - LIKELY LAW
ENFORCEMENT OR PROSECUTION - AS AN ALTERNATIVE TO BILLING THE
VICTIMS COMPENSATION BOARD?
HOW WOULD THE MEDICAL PROVIDER DOCUMENT THAT SERVICES FOR WHICH
REIMBURSEMENT ARE SOUGHT INVOLVED TREATMENT OF A SEXUAL ASSAULT
VICTIM?
5. Minimum Standards for Medical Treatment of Sexual Assault
Victims; Confusing Construction of the Statute concerning
Examination of Sexual Assault Victims
Existing law requires medical providers to follow specified
standards or protocols for treatment of sexual assault victims.
This bill specifies that these prescribed standards - including
notification to law enforcement, obtaining consent, examination
for injuries, collection of evidence, and other requirements -
apply to forensic examinations.
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The bill separately and simply further provides that a health
care provider shall "follow minimum standards for medical
examination and treatment" of sexual assault victims. The bill
does not specifically state what such minimum standards are.
The bill does, however, specify that where a victim consents to
a medical examination as part of a forensic examination, the
examination shall include specified actions - documentation of
injuries, inspection of the victim's body and clothing, et
cetera.
It appears that the construction of this - Penal Code Section
13823.11 - may be faulty. The section is drafted such that
virtually all provisions in the statute constitute minimum
standards for forensic examinations. However, it appears that
some subdivisions of Section 13823.11 do not reasonably apply to
forensic examinations.
SHOULD THE BILL SPECIFICALLY PROVIDE WHAT CONSTITUTES "MINIMUM
STANDARDS" FOR MEDICAL EXAMINATION AND TREATMENT OF SEXUAL
ASSAULT VICTIMS?
SHOULD PENAL CODE SECTION 13823.11 - WHICH CONCERNS EXAMINATIONS
AND TREATMENT OF SEXUAL ASSAULT VICTIMS - SEPARATELY SET OUT
REQUIREMENTS FOR FORENSIC EXAMINATIONS FROM OTHER PROVISIONS?
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