Medical licensees now have professional discretion in reporting domestic violence to law enforcement.
If the patient does not wish for the licensee to contact law enforcement, the licensee is to document the patient’s wishes in the medical file.
If the licensee wants to report to law enforcement over the wishes of the patient, they must confidentially notify the patient of their intent to report prior to calling law enforcement and document the efforts to provide the confidential notification to patient. Under HIPAA 45 CFR 164.512(f)(3), licensees may only report to law enforcement what they observed unless they have permission from the patient to give more information. See guidance from Health and Human Services here.
Either choice the licensee makes (to report to law enforcement or not), requires they must provide patient a referral to a community based DV organization. Immediate access to a confidential advocate is the goal.
Once the licensee understands this is a DV situation, the licensee must provide the patient with information and/or access to free and confidential community based advocacy services.
A best practice is to encourage the patient to directly call a confidential local community-based program hotline from the office with the support of the medical licensee. The National DV Hotline (which has access to over 200 languages) may also be called if needed.
The referral can provide for immediate access to services, opportunities for safety planning, access to safe shelter, legal advocacy, etc., with many community based confidential domestic violence programs capable of providing same day in-person access for survivors at their facility or other safe place.
Victims need time to create a plan for their safety, which may include finding housing, protecting children from abuse or abduction, speaking to an advocate or attorney, and creating a plan for financial self-sufficiency. Community based advocates can confidentiality assist survivors with all of these needs, free of charge.
The licensee has full immunity for either course of action.
If you are NOT
calling law enforcement:
What you observed
What you heard from the patient, specifically their request to NOT call law enforcement
Confidential Advocate Referral
If you ARE calling law enforcement:
What you observed- ONLY
Documentation that you CONFIDENTIALLY informed the victim you have made the decision to call law enforcement
Confidential Advocate Referral
A licensee is specifically defined in Colorado statute as a physician, PA, anesthesiologist, or anesthesiologist assistant.
HIPAA 45 CFR 164.512(f)(3) allows for disclosure of personal health information to law enforcement with the patient’s permission and directs Licensees to follow state statutory reporting requirements when a disclosure is to be made without the patient’s permission. Colorado’s HB17-1322 provides the framework for reporting domestic violence against a patient’s wishes.
The Forensic Compliance Evaluation Project gives specific detailed guidance for medical professionals on reporting options for Survivors of sexual assault and domestic violence. Additional guidance regarding HIPAA can be found in appendix 3 of the guide (prior link), as well as from the department of Health and Human Services here.
For additional guidance please see your facilities internal practice documents, or contact Violence Free Colorado for free technical assistance.
Nursing Professionals regularly and often act as the designee of the medical licensee and directly respond to the orders of medical licensees. The previous Colorado reporting law was specifically intended for medical licensees as defined by statute and this part did not change; nursing professionals have never been directly statutorily mandated to report injuries resulting from domestic violence. As reporting of all domestic violence injuries was previously mandated under state law prior to 9 August 2017, nurses could do so under as the direct designee of the licensee.
After 9 August 2017, under HB17-1322, nurses can continue to act as designees of the medical licensee and follow the reporting guidelines under the new law.
Outside of operating as a direct designee, nursing professionals receive guidance from HIPAA 45 CFR 164.512(f)(3), which prohibits releasing personal health information to law enforcement over the wishes of the patient in most circumstances, and limits the scope of the information to be shared. For more information on reporting options for Survivors of domestic violence and sexual assault in Colorado see the Forensic Compliance Evaluation Project here. For specific information regarding HIPAA please read appendix three of the above link or find guidance directly from the Department of Health and Human Services here.
For additional guidance please see your facility’s internal practice documents, or contact Violence Free Colorado for free technical assistance.