Chapter 20 – Protecting Children from Sexual Abuse by Health Care Providers

3-20.1  INTRODUCTION

1. Purpose.   This policy provides professional standards and guidance to protect against sexual abuse or exploitation of children by health care providers.
2. Scope.   This policy applies to all Indian Health Service (IHS) health care providers, including (but not limited to) employees, volunteers, and contractors. The policy covers sexual abuse, or reasonable suspicion of sexual abuse, committed at any location by any provider working for the IHS.
3. Background.  Pediatricians and other health care providers are entrusted with the responsibility to improve the health and well-being of children. IHS supports the American Academy of Pediatrics (AAP) position statement on sexual abuse by health care providers: "AAP strongly endorses the social and moral prohibition against sexual abuse or exploitation of children by health care providers. The Academy opposes any such sexual abuse or exploitation by providers." IHS prohibits the misuse of a health care provider’s authority and trust to take advantage of any patients, especially pediatric patients. IHS has a zero tolerance policy for misuse of this authority and trust to sexually abuse or exploit children. Children are especially vulnerable to abuse and each person in IHS has a responsibility to ensure the safety of children in health care settings, abide by appropriate provider-patient boundaries, and to scrupulously follow reporting requirements and investigation procedures as specified in this policy.
4. Authorities.  
   1. Indian Health Care Improvement Act, 25 U.S.C. § 1665a;
   2. Snyder Act, 25 U.S.C. § 13;
   3. Indian Child Protection and Family Violence Prevention Act, 25 U.S.C. §§ 3201 – 3210; 42 C.F.R. §§ 136.401-418;
   4. Victims of Child Abuse Act, 34 U.S.C. § 20341 (federal child abuse reporting requirement) and 34 U.S.C. § 20351 (requirement for background checks);
   5. 18 U.S.C. § 1169 (reporting of child abuse in Indian Country);
   6. No FEAR Act, 5 U.S.C. § 2302 (b)(8); and
   7. Indian Health Manual, Part 3, Chapter 23, Ethical and Professional Conduct of Health Care Providers.
5. Policy.  It is the policy of the IHS that:
   1. Providers should under no circumstances engage in sexual activity, sexual communication (through the use of technology or in person), or sexual contact with current or former patients under the age of 18, whether such contact is voluntary or forced.
   2. There is zero tolerance for all forms of sexual abuse of patients.
   3. IHS facilities will post information on how IHS staff members, patients, parents, and others may report sexually inappropriate behavior related to an examination, a provider’s actions, or a provider’s statements to the facility’s administration, IHS Hotline, the Office of the Inspector General (OIG), and to the appropriate law enforcement and/or child protective services agency.
   4. No administrative or other adverse action will be taken against an IHS staff member who, in good faith and in accordance with applicable laws and policy, reports suspicions of sexual abuse by a health care provider.
6. Definitions.  
   1. Chaperone.  A member of staff who has a favorably adjudicated background investigation as required under 25 U.S.C. § 3207 and 34 U.S.C. § 20351, and who attends a medical procedure or exam as a safeguard and witness, for both the child and the health care provider.
   2. Child Sexual Abuse.  Sexual abuse (which includes exploitation and sexually inappropriate behavior) is engaging a child in sexual activities, including genital or anal contact, that he or she cannot comprehend, is developmentally unprepared for, and cannot give consent for, or violates the law; non-contact abuse such as exposing the child to exhibitionism, voyeurism or sexually explicit material; using the child in pornography; and pandering the child for sex by others. Sexual abuse includes the employment, use, persuasion, inducement, enticement, coercion, or assistance of any person in order to engage in any sexually explicit conduct or simulation of such conduct for the purpose of producing a visual depiction of such conduct; the rape, statutory rape, molestation, commercial sex with, or other form of sexual exploitation of children; or incest with children. The sexual activities may include all forms of fondling, oral-genital, genital, or anal contact by or to the child.
   3. Grooming.  Grooming is befriending and establishing an emotional connection with a child or child’s family member, with the aim of lowering the child’s inhibitions with the objective of sexual abuse.
   4. Health Care Provider.  Anyone who provides physical or behavioral health treatment to patients, e.g., physicians, nurses, dentists, podiatrists, optometrists, physician assistants, pharmacists, psychologists, counselors, etc.
   5. Mandated Reporting.  Mandated, or mandatory reporting refers to the jurisdictional laws which mandate certain agencies and/or persons in specific professions (e.g., teachers, social workers, health care providers) in that jurisdiction, to report actual or suspected child abuse (e.g., physical, sexual, neglect, emotional and psychological abuse) to child protection and/or criminal justice authorities.
   6. Office of Inspector General (OIG).  The OIG is an agency of the Department of Health and Human Services (HHS) whose mission is to protect the health and welfare of all HHS program beneficiaries through a multifaceted approach that promotes efficiency and integrity aimed to eliminate fraud, waste, and abuse. The OIG provides recommendations for program improvements to the IHS community, including pursuing law enforcement action against those that violate the law or the IHS program guidelines.
   7. Parent.  A parent, for the purpose of this policy, is a biological or adoptive parent, legal guardian, or other individual, who may lawfully exercise parental rights with respect to the child.
   8. Staff.  Staff includes a civilian employee, United States Public Health Service (USPHS) Commissioned Corps Officer, contractor, student, resident, or volunteer at an IHS operated facility.
   9. IHS Incident Reporting System.  An electronic incident reporting system used by IHS facilities for collecting and maintaining: occupational injury and illness data; visitor injury data; patient safety error and adverse event data; reporting security events, property damage, and hazardous conditions; conducting trend analysis; and producing reports.

3-20.1  RESPONSIBILITIES

1. Director, Office of Human Resources and Directors, Servicing Regional Human Resource Offices  are responsible for:
   1. Guiding IHS staff in reporting suspected child sexual abuse to OIG;
   2. Assisting management officials in the development of official notices and decision letters regarding the official corrective action taken against health care providers accused of child sexual abuse, when indicated; and
   3. Providing oversight and coordination with the appropriate supervisors when providers suspected of child sexual abuse (either in the past or currently) seek to transfer between IHS Hospitals and Service Units.
2. Deputy Director for Field Operations, IHS.  The Deputy Director for Field Operations, IHS, is responsible for alerting IHS senior leaders of any reports of sexual abuse by health care providers received from Area Directors.
3. Area Director (AD).  The AD is responsible for:
   1. Annual review for compliance with this policy by all IHS facilities within his or her region.
   2. Reporting any issues with IHS staff to the IHS Deputy Director for Field Operations and other senior leaders, as appropriate.
   3. Ensuring IHS Area Governing Boards have procedures in place to address reports concerning sexual abuse by health care providers.
4. Chief Executive Officer (CEO).  The CEO is responsible for:
   1. Establishing local policy and procedures to execute this policy, to include:
      1. Creating guidelines for mandatory reporting to the appropriate child protective and law enforcement authorities (including the OIG), the IHS Area Director, IHS Area Governing Board, and to the IHS Headquarters Office of Human Resources.
      2. Posting information for staff, patients, parents, caregivers, and others, which includes the IHS Hotline and OIG Hotline for required reporting of concerns of sexual abuse by an IHS health care provider.
   2. Consulting with the Office of the General Counsel (OGC) to identify the appropriate child protective and/or law enforcement authorities for the respective facility and the legal time frames for reporting.
   3. Ensuring that all reasonable suspicions of child sexual abuse by IHS health care providers are reported to the regional and headquarters human resource offices, law enforcement authorities and/or child protective services; appropriate licensing boards, IHS Hotline, and to the HHS OIG.
   4. Cooperating with all law enforcement and administrative investigations of child sexual abuse by health care providers.
   5. Consulting with the OIG when conducting a management inquiry/administrative investigation.
5. Supervisors.  All supervisors are responsible for:
   1. Ensuring that health care providers with a pending background investigation are within sight and under the supervision of a chaperone at all times when they are in contact with or have control over an Indian child;
   2. Keeping confidential, to the extent possible, the identity of the reporter of suspected child sexual abuse and taking steps to prevent retaliation;
   3. Ensuring all reported incidents of inappropriate sexual contact are documented in the IHS Incident Reporting System by the reporting employee or entering the information when receiving an anonymous report;
   4. Notifying the health care provider’s licensing board(s) and the National Practitioner Data Bank of any disciplinary actions, in consultation with OGC;
   5. Providing annual training on the requirements of this policy and the facility policy to all IHS staff under their supervision and maintaining a record of the training;
   6. Immediately removing a health care provider from any duties involving patient care interactions when a reasonable suspicion of child sexual abuse has been reported and following Human Resources guidance for further actions during the investigation; and
   7. Should supervisors suspect that a health care provider’s relationship with a patient or family member fails to meet professional guidelines, counseling or other disciplinary actions may be taken, including terminating the provider’s professional relationship with the patient and family and assigning the patient and family to different providers.
6. Health Care Provider.  All health care providers in IHS facilities are responsible for:
   1. Reporting suspicions of child abuse. If a health care provider has reasonable cause to suspect that another health care provider has sexually abused a child, he or she is legally mandated to report to child protective services and/or the police.
   2. Limiting their patient interactions to professional activities and refraining from all activity that could be considered sexual abuse, exploitation, or sexually inappropriate behavior.
   3. Maintaining appropriate patient and family boundaries, including:
      1. Limiting communication and contact to subjects related to the care of the children and services to meet family needs.
      2. Refraining from any inappropriate contact outside of the scope of work, including but not limited to:
         1. Providing child care outside of the IHS operated facility;
         2. Providing transportation in personal vehicles;
         3. Inviting children to locations away from the IHS operated facility, including staff housing;
         4. Sharing personal information or problems;
         5. Sharing personal contact information, including personal phone numbers, physical addresses, and e-mail addresses;
         6. Interacting on social media;
         7. Accepting gifts, both monetary and non-monetary;
         8. Offering gifts or money;
         9. Other social contact that is outside the patient-provider professional relationship.
         10. Taking or possessing images of patients on personal devices at any time. Patient images obtained for patient health records will comply with the standard practice for photo-documentation.
   4. Ensuring that at all times, prior to a receipt of a favorably adjudicated background investigation, when having contact with or control over Indian children, are within sight and under the supervision of a chaperone.
7. All IHS Staff.  All IHS Staff are responsible for:
   1. Reporting any incident or reasonable suspicion of sexual abuse of a child by a health care provider directly to the proper child protective and/or law enforcement authorities following legally required timelines in consultation with OGC, and to the OIG Hotline at 1-800-447-8477.
   2. Reporting any incident or reasonable suspicion of sexual abuse of a child directly to their supervisor, the CEO, or alert the next supervisor in the chain of command if the first line supervisor is the one suspected of child sexual abuse, and the IHS Hotline at 301-443-0658 within the same day of the incident.
   3. Documenting the report in the IHS Incident Reporting System within five business days.

3-20.3  CHAPERONES

1. Chaperones should be provided when requested by a patient, parent or caregiver. A support person of the patient’s choosing, such as a parent or caregiver accompanying the child, should also be an option if a chaperone is not desired by the patient.
2. Chaperones should be offered and supplied by IHS providers if the patient is a child, adolescent, or young adult and the examination requires inspection or palpation of anorectal or genital areas and/or the female breast.
3. If a provider indicates a medical examination should be conducted with a chaperone present and the patient refuses, the patient or the parent should be given alternatives.
4. All chaperones must have a favorably adjudicated background investigation on file as required under 25 U.S.C. § 3207 and 34 U.S.C. § 20351.
5. Providers who are pending a favorably adjudicated background investigation must be within sight and under the supervision of a chaperone when in contact with or control over a child.

3-20.4  STAFF RIGHTS Accused employees should have complaints about them managed confidentially, sensitively, and expeditiously. Employees should be provided with independent, confidential support and counseling services during the investigation.

1. Confidentiality.  All allegations of child sexual abuse and related information will be maintained on a confidential basis to the greatest extent possible. The identity of the staff member reporting the alleged violations, as well as the health care provider under investigation, will be kept confidential, except as necessary to conduct an appropriate investigation into the alleged violation or when otherwise required by law.
2. Reprisals Prohibited.  Any attempt by any staff member as well as the provider under investigation, to restrain, interfere, coerce, or otherwise take reprisal action against another staff member who has reported the alleged violations is against the law. Such actions may result in disciplinary action.
3. Grievance Process.  Reports and actions pursuant to this policy do not replace, substitute, include, or otherwise satisfy the different forums that staff may utilize, including but not limited to the following processes: the negotiated grievance procedure, Agency grievance procedure, Merit Systems Protection Board, Equal Employment Opportunity, or any other statutory processes.