Indian Health Service:

Continued Efforts Needed to Help Strengthen Response to Sexual Assaults and Domestic Violence

GAO-12-29: Published: Oct 26, 2011. Publicly Released: Oct 26, 2011.

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The Justice Department has reported that Indians are at least twice as likely to be raped or sexually assaulted as all other races in the United States. Indians living in remote areas may be days away from health care facilities providing medical forensic exams, which collect evidence related to an assault for use in criminal prosecution. The principal health care provider for Indians, which operates or funds tribes to operate 45 hospitals, is the Department of Health and Human Services' Indian Health Service (IHS). In response to a Tribal Law and Order Act of 2010 mandate, GAO examined (1) the ability of IHS and tribally operated hospitals to collect and preserve medical forensic evidence involving cases of sexual assault and domestic violence, as needed for criminal prosecution; (2) what challenges, if any, these hospitals face in collecting and preserving such evidence; and (3) what factors besides medical forensic evidence contribute to a decision to prosecute such cases. GAO surveyed all 45 IHS and tribally operated hospitals and interviewed IHS and law enforcement officials and prosecutors..

GAO's survey of IHS and tribally operated hospitals showed that the ability of these hospitals to collect and preserve medical forensic evidence in cases of sexual assault and domestic violence--that is, to offer medical forensic services--varies from hospital to hospital. Of the 45 hospitals, 26 reported that they are typically able to perform medical forensic exams on site for victims of sexual assault on site, while 19 reported that they choose to refer sexual assault victims to other facilities. The hospitals that provided services began to do so generally in response to an unmet need, not because of direction from IHS headquarters, according to hospital officials. Partly as a result, levels of available services have fluctuated over time. GAO found that the utility of medical forensic evidence in any subsequent criminal prosecution depends on hospital staff's properly preserving an evidentiary chain of custody, which depends largely on coordinating with law enforcement agencies. IHS has made significant progress since 2010 in developing required policies and procedures on medical forensic services for victims of sexual assault; nevertheless, challenges in standardizing and sustaining the provision of such services remain. In March 2011, IHS took a sound first step in what is planned to be an ongoing effort to standardize medical forensic services by issuing its first agencywide policy on how hospitals should respond to adult and adolescent victims of sexual assault. Remaining challenges include systemic issues such as overcoming long travel distances between Indian reservations or Alaska Native villages and IHS or tribal hospitals and developing staffing models that overcome problems with staff burnout, high turnover, and compensation, so that standardized medical forensic services can be provided over the long term. In addition, other challenges include establishing plans to help ensure that IHS hospitals consistently implement and follow the March 2011 policy, such as with training guidelines, and developing policies on how IHS hospitals should respond to domestic violence incidents and sexual abuse involving children who have not yet reached adolescence--neither of which is included in the March 2011 policy. GAO found that IHS is aware of these challenges and has initiatives under way or under consideration to address them. Decisions to prosecute sexual assault or domestic violence cases are based on the totality of evidence, one piece of which is medical forensic evidence collected by hospitals. In some cases, medical forensic evidence may be a crucial factor; in other cases, however, it may not be relevant or available. Law enforcement officers and prosecutors said that they also consider several other factors when deciding to refer or accept a case for prosecution. For example, some victims in small reservations or isolated villages may refuse to cooperate or may retract their initial statements because of pressure from community members who may depend on the alleged perpetrator for necessities. As a result, the victim may be unavailable to testify. Several prosecutors also told us that the availability to testify of the providers who perform medical forensic exams is an important factor, because such testimony can help demonstrate that an assault occurred or otherwise support a victim's account. IHS's March 2011 policy, however, does not clearly and comprehensively articulate the agency's processes for responding to subpoenas or requests for employee testimony. GAO is making five recommendations aimed at improving IHS's response to sexual assault and domestic violence, including to develop an implementation and monitoring plan for its new sexual assault policy and to modify sections of the policy regarding required training and subpoenas or requests to testify. The Department of Health and Human Services and the state of Alaska generally agreed with GAO's findings and recommendations.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: In an October 2011 report, "Indian Health Service: Continued Efforts Needed to Help Strengthen Response to Sexual Assaults and Domestic Violence," we found that the Indian Health Service (IHS) had not yet developed written, comprehensive plans for implementing and monitoring its March 2011 sexual assault policy. Specifically, we found that implementing and monitoring the policy's training and certification guidelines may be challenging and that IHS had not identified resources for purchasing equipment and supplies or identified deadlines IHS hospitals should meet in implementing parts of the policy such as providing access to medical forensic exams on site or by referral, or collaborating with the objective of creating sexual assault response teams. We concluded that without articulating how it plans to implement the policy and monitor progress toward meeting policy requirements, IHS may not be able to hold individual hospitals accountable to the agency, and the agency may not be able to hold itself accountable to its beneficiaries. As a result, we recommended that IHS develop an implementation plan for the March 2011 IHS sexual assault policy (Indian Health Manual, chapter 3.29) - and monitor its progress - to clarify how the agency will support its hospitals and staff in fulfilling the policy, in particular, that the hospitals or staff: (1) obtain training and certification in providing forensic medical exams; (2) obtain equipment like cameras needed to collect evidence; (3) provide medical forensic exams on site or at a referral facility within 2 hours of a patient's arrival; and (4) collaborate with law enforcement agencies, prosecution, and other stakeholders identified in the policy with the objective of creating sexual assault response teams and obtaining regular feedback from such stakeholders on evidence collection and preservation. In its written response to our report, IHS agreed with our recommendation and stated that work was underway to implement it. In response to our recommendation, IHS developed an Implementation and Monitoring Plan for Domestic and Sexual Violence Response Efforts in late 2011 and has been monitoring progress in implementing the plan. The implementation and monitoring plan includes, among other things, actions and timelines for (1) providing training in forensic medical exams; (2) providing forensic equipment to IHS hospitals and clinics; (3) developing a mapping project to identify facilities that provide on-site exams and those that refer to facilities more than 2 hours away; and (4) providing training on sexual assault response teams.

    Recommendation: To improve or expand medical forensic exams and related activities for the 28 IHS operated hospitals, the Secretary of Health and Human Services should direct the Director of the Indian Health Service to develop an implementation plan for the March 2011 IHS sexual assault policy ("Indian Health Manual," chapter 3.29)--and monitor its progress--to clarify how the agency will support its hospitals and staff in fulfilling the policy, in particular, that the hospitals or staff: (1) obtain training and certification in providing forensic medical exams; (2) obtain equipment like cameras needed to collect evidence; (3) provide medical forensic exams on site or at a referral facility within 2 hours of a patient's arrival; and (4) collaborate with law enforcement agencies, prosecution, and other stakeholders identified in the policy with the objective of creating sexual assault response teams and obtaining regular feedback from such stakeholders on evidence collection and preservation.

    Agency Affected: Department of Health and Human Services

  2. Status: Open

    Comments: In an October 2011 report, "Indian Health Service: Continued Efforts Needed to Help Strengthen Response to Sexual Assaults and Domestic Violence," we found that Indian Health Service (IHS) hospitals do not have specific or recently updated guidance on whether to provide medical forensic services for victims of domestic violence and child sexual abuse. We recommended that IHS develop a policy that details how IHS should respond to discrete incidents of domestic violence without a sexual component and, working with Justice, develop a policy for responding to incidents of child sexual abuse consistent with protocols Justice develops for these incidents; such policies should be similar in scope and specificity to the March 2011 IHS policy on responding to adult and adolescent sexual assaults. In its written response to our report, IHS agreed with our recommendation and stated that work was underway to implement it. According to an August 2014 update from IHS, IHS has developed two draft policies that are currently under agency review: (1) an intimate partner violence policy and (2) a child maltreatment policy. According to IHS, Justice has not yet developed a national protocol for responding to child sexual assault. While waiting for Justice to develop such a protocol, IHS developed the draft child maltreatment policy.

    Recommendation: To improve or expand medical forensic exams and related activities for the 28 IHS operated hospitals, the Secretary of Health and Human Services should direct the Director of the Indian Health Service to develop a policy that details how IHS should respond to discrete incidents of domestic violence without a sexual component and, working with Justice, develop a policy for responding to incidents of child sexual abuse consistent with protocols Justice develops for these incidents; such policies should be similar in scope and specificity to the March 2011 IHS policy on responding to adult and adolescent sexual assaults.

    Agency Affected: Department of Health and Human Services

  3. Status: Closed - Implemented

    Comments: In an October 2011 report, "Indian Health Service: Continued Efforts Needed to Help Strengthen Response to Sexual Assaults and Domestic Violence," we found that the Indian Health Service's (IHS) March 2011 sexual assault policy left unclear whether medical providers such as physicians and physician assistants must obtain specialized training and certification - or just training - before performing sexual assault medical forensic exams. We found that without clear training and certification guidelines for physicians and physician assistants, medical forensic exams may be performed by medical providers with inconsistent levels of knowledge and expertise, and that as a result, IHS beneficiaries cannot be assured of uniform quality in medical forensic services received. We recommended that IHS clarify whether sections 3.29.1 and 3.29.5 of the March 2011 IHS sexual assault policy call for training and certification, or only training, of IHS physicians and physician assistants performing sexual assault medical forensic exams. In its written response to our report, IHS agreed with our recommendation and stated that work was underway to implement it. In response to our recommendation, IHS revised its sexual assault policy to clarify that certification is not required for practice in IHS facilities and to outline the minimum training requirements for sexual assault examiners, including for physicians and physician assistants. The finalized policy containing this clarification was issued on May 16, 2014. In addition, IHS issued an action memo clarifying that certification is not a requirement for physicians or physician assistants for practice in IHS facilities. According to IHS, this memo was issued on March 6, 2013.

    Recommendation: To improve or expand medical forensic exams and related activities for the 28 IHS operated hospitals, the Secretary of Health and Human Services should direct the Director of the Indian Health Service to clarify whether sections 3.29.1 and 3.29.5 of the March 2011 IHS sexual assault policy call for training and certification, or only training, of IHS physicians and physician assistants performing sexual assault medical forensic exams.

    Agency Affected: Department of Health and Human Services

  4. Status: Open

    Comments: In an October 2011 report, "Indian Health Service: Continued Efforts Needed to Help Strengthen Response to Sexual Assaults and Domestic Violence," we found that the Indian Health Service's (IHS) March 2011 policy on responding to adult and adolescent sexual assaults did not clearly and comprehensively articulate the agency's processes for responding to subpoenas or requests for testimony of providers who perform medical forensic exams. We recommended that IHS modify its March 2011 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 in 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. In its written response to our report, IHS agreed with our recommendation and stated that work was underway to implement it. According to an August 2014 update from IHS, IHS has developed two draft documents related to this recommendation that are currently under agency review: (1) a policy to replace the section in the IHS sexual assault policy that establishes guidance for responding to subpoenas or requests for testimony and (2) a special general memorandum from the IHS Acting Director to Area Directors clarifying instructions for the policy directive; in particular, what happens at the Area and Service Unit level when a request for employee testimony is received and approved. In addition, according to IHS, a Delegation of Authority was issued in September 2013 whereby the IHS Acting Director extended the authority to approve or deny requests for testimony to the Area Directors and other senior officials.

    Recommendation: To improve or expand medical forensic exams and related activities for the 28 IHS operated hospitals, the Secretary of Health and Human Services should direct the Director of the Indian Health Service to modify the March 2011 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 in 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.

    Agency Affected: Department of Health and Human Services

  5. Status: Open

    Comments: In an October 2011 report, "Indian Health Service: Continued Efforts Needed to Help Strengthen Response to Sexual Assaults and Domestic Violence," we found that in some Indian Health Service (IHS) hospitals where we conducted interviews, medical forensic services were not organized into a formal program or housed within a specific hospital department. Instead, several officials told us, medical forensic exams were performed by individual medical providers, sometimes from different departments, and often outside the medical providers' official job duties and beyond their normal working hours. We recommended that IHS explore ways to structure medical forensic activities within IHS facilities so that these activities come under an individual's normal duties or unit's official area of responsibility, in part to ensure that providers are compensated for performing medical forensic services. In its written response to our report, IHS agreed with our recommendation and stated that work was underway to implement it. According to an August 2014 update from IHS, IHS continues to investigate methods of recognizing the specialized nature of the duties of providers who perform medical forensic exams in an effort to provide compensation for performing these exams that is congruent with Office of Personnel Management regulations.

    Recommendation: To improve or expand medical forensic exams and related activities for the 28 IHS operated hospitals, the Secretary of Health and Human Services should direct the Director of the Indian Health Service to explore ways to structure medical forensic activities within IHS facilities so that these activities come under an individual's normal duties or unit's official area of responsibility, in part to ensure that providers are compensated for performing medical forensic services.

    Agency Affected: Department of Health and Human Services

 

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