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State Laws and the Nurse Practice Act

Legal Questions To Answer Before Starting a SANE Team Outside of a Hospital

  1. What is the best business structure allowed by my state, territory, or tribe to protect individuals from personal liability?
  2. If I am opening a freestanding site for SANE examinations, does the facility need to be licensed or meet any specific qualifications in order to provide health care?
  3. Will the nurses be employees or qualify as independent contractors? How will this impact whether employment taxes need to be paid to the state?

SANEs are nurses first, and they must be familiar with their Nurse Practice Act. Nurse Practice Acts are laws in each state that determine the legal duties and responsibilities of a nurse to patients, other nurses, and the community. There are 15 states where the state codes or regulations have language specifically referring to SANE practice. If your state does not mention SANE practice in any statute or regulation, look for language that describes how a nurse can expand their scope of practice beyond what is typically considered the role of the registered nurse. If you have any questions or concerns about SANE practice, there should be a mechanism for contacting your state's board of nursing. It is the responsibility of the state board of nursing to provide an interpretation of the Nurse Practice Act. Other state laws impact many aspects of SANE practice. State laws provide guidance for creating a business when developing a community-based program. (See Text Box A: Legal Questions To Answer Before Starting a SANE Team Outside of a Hospital.)

State laws also specify the rights and responsibilities related to health care; determine how, and under what conditions, someone can consent to health care; and specify what is required for informed consent. State laws also indicate when a nurse has a mandatory duty to report abuse and neglect. Public health laws determine when communicable diseases need to be reported to the state. Table A presents the various types of state laws, and how they may impact SANE practice. 

It is not enough to be aware of state laws. It is essential to know how state laws interact with each other and with tribal and federal laws. For example, in Utah, a minor of reproductive age has a right to confidential reproductive health care. At the same time, the sexual assault of a minor is required to be reported to law enforcement under mandatory child abuse reporting laws. This means that a nurse cannot notify a parent that their adolescent has been assaulted without the child's consent, but the nurse must report the assault to law enforcement. In most cases, law enforcement will then contact the parents and notify them of the assault. This is an example of a situation where multidisciplinary team members need to work together to ensure that the adolescent survivor receives patient-centered and trauma-informed care. There may be situations where notifying the parents may create greater harm for the child. It is essential for team members to have open communication in order to make decisions with input from everyone involved in the case.

It is important to consult with an attorney who is knowledgeable in both business and health care law when starting a community-based program. Most states have websites that provide basic information about incorporation. You can also start with the U.S. Small Business Administration for information on starting a business. 

Getting Legal Advice

It is important to seek legal advice early in the process of developing a SANE program. If you are developing a program in a hospital, it is important to request that the in-house legal counsel and risk management director review the program's policies and procedures. If you are developing a program outside of a hospital, it is important to seek legal services to assist in the development of the business structure, facility licensing, and employer policies. While prosecutors are experts in criminal law, they may not be experts in nursing practice regulation and health law. Prosecutors can review evidence collection policies and procedures, but should not be responsible for policies related to patient health care.

Table A: State Health Laws Impacting SANE Practice

Types of Laws What SANEs Need to Know

Health consent laws specify who can consent to health care and under what conditions.
  1. Can a minor patient consent to reproductive health care? This would include contraception, sexually transmitted disease testing, and treatment.
  2. When can a minor consent to a sexual assault medical forensic examination?
  3. Who can give consent for health care for a patient who is incapacitated?

Confidential care laws specify when a patient is entitled to confidential care or when communication with a health care provider is privileged or protected from disclosure. 
  1. When can a minor receive confidential care?
  2. Are there areas of health care that have increased protection from disclosure, such as mental health and human immunodeficiency virus (HIV) treatment?
  3. Are there exceptions to confidentiality laws, such as reporting a patient who is threatening harm to self or others?

Mandatory reporting laws determine when and how health care providers report the abuse or neglect of a patient.
  1. What are the mandatory reporting laws for abuse of a child, elder, and vulnerable adult (adult with a disability)?
  2. Does your state have laws that require the reporting of sexual assault, domestic violence, or any injuries that are the result of a crime?
  3. Does your tribe have laws that require the reporting of sexual assault, domestic violence, or any injuries that are the result of a crime?
  4. Do all multidisciplinary team members have the same mandatory reporting requirements?

Public health laws indicate when infectious diseases should be reported to local health authorities. 
  1. What infectious diseases are reportable in your state?
  2. Are there any reportable diseases for your tribe? 

Medical record and privacy laws describe the requirements for the release of medical records and any other protected health information. 
  1. Does your state or tribe have medical record and privacy laws that are more restrictive than the Health Insurance Portability and Accountability Act (HIPAA) requirements?
  2. Are there types of medical records that have heightened confidentiality protections? These protections typically apply to mental health, substance abuse treatment, and HIV records. 

Emergency contraception laws require hospitals and other providers to provide emergency contraception to sexual assault survivors.
  1. Does my state or tribe have an emergency contraception law?
  2. Who is required to provide emergency contraception under the law?

State victims' rights laws provide protections and rights to victims of crime. 
  1. Do the relevant state or tribal victims' rights laws require access to medical forensic examinations?
  2. Do the relevant state or tribal laws require that the patient have the option to have an advocate present during an examination?
  3. Does the state or tribe have an OVC-funded victims' rights legal clinic where patients can get legal help?

State laws that address payment for medical forensic examinations and treatment. 
  1. Under state laws and regulations, which entity is designated as the payment source for medical forensic examinations?
  2. What is covered by the designated payment source? For example, does it only cover items that are considered purely medical, such as sexually transmitted disease prophylaxis?
  3. How are invoices submitted to the payment source?
  4. What types of providers can be reimbursed (e.g., nurses, physicians, other health care providers)?
  5. Do the laws and regulations include a cap on charges for services?
  6. Can the victim's insurance be billed?