(1) A health care provider shall not engage, or attempt to engage, in sexual misconduct with a current patient, or key party, inside or outside the health care setting. Sexual misconduct shall constitute grounds for disciplinary action. Sexual misconduct includes, but is not limited to:
(a) Sexual intercourse;
(b) Touching the breasts, genitals, anus or any sexualized body part except as consistent with accepted community standards of practice for examination, diagnosis and treatment and within the health care provider's scope of practice;
(c) Rubbing against a patient or key party for sexual gratification;
(e) Hugging, touching, fondling or caressing of a romantic or sexual nature;
(f) Examination of or touching genitals without using gloves;
(g) Not allowing a patient privacy to dress or undress except as may be necessary in emergencies or custodial situations;
(h) Not providing the patient a gown or draping except as may be necessary in emergencies;
(i) Dressing or undressing in the presence of the patient or key party;
(j) Removing patient's clothing or gown or draping without consent, emergent medical necessity or being in a custodial setting;
(k) Encouraging masturbation or other sex act in the presence of the health care provider;
(l) Masturbation or other sex act by the health care provider in the presence of the patient or key party;
(m) Soliciting a date with a patient or key party;
(n) Discussing the sexual history, preferences or fantasies of the health care provider;
(o) Any behavior, gestures, or expressions that can reasonably be interpreted as seductive or sexual;
(p) Sexually demeaning behavior including any verbal or physical contact which can reasonably be interpreted as demeaning, humiliating, embarrassing, threatening or harming a patient or key party;
(q) Photographing or filming the body or any body part or pose of a patient or key party, other than for legitimate health care purposes; or for the educational or marketing purposes with the consent of the patient; and
(r) Showing a patient or key party sexually explicit photographs, other than for legitimate health care purposes.
(2) Sexual misconduct also includes sexual contact with any person involving force, intimidation, or lack of consent; or a conviction of a sex offense as defined in RCW 9.94A.030
(3) A health care provider shall not:
(a) Offer to provide health care services in exchange for sexual favors;
(b) Use health care information to contact the patient or key party for the purpose of engaging in sexual misconduct;
(c) Use health care information or access to health care information to meet or attempt to meet the health care provider's sexual needs.
(4) A health care provider shall not engage in the activities listed in subsection (1) of this section with a former patient or key party if the health care provider:
(a) Uses or exploits the trust, knowledge, influence or emotions derived from the professional relationship; or
(b) Uses or exploits privileged information or access to privileged information to meet the health care provider's personal or sexual needs.
(5) When evaluating whether a health care provider has engaged or has attempted to engage in sexual misconduct, the commission will consider factors including, but not limited to:
(a) Documentation of a formal termination;
(b) Transfer of care to another health care provider;
(c) Duration of the health care provider-patient relationship;
(d) Amount of time that has passed since the last dental health care services to the patient;
(e) Communication between the health care provider and the patient between the last dental health care services rendered and commencement of the personal relationship;
(f) Extent to which the patient's personal or private information was shared with the health care provider;
(g) Nature of the patient's health condition during and since the professional relationship; and
(h) The patient's emotional dependence and vulnerability.
(6) Patient or key party initiation or consent does not excuse or negate the health care provider's responsibility.
(7) These rules do not prohibit:
(a) Providing health care services in case of emergency where the services cannot or will not be provided by another health care provider;
(b) Contact that is necessary for a legitimate health care purpose and that meets the standard of care appropriate to the dental profession; or
(c) Providing dental services for a legitimate health care purpose to a person who is in a preexisting, established personal relationship with the health care provider where there is no evidence of, or potential for, exploiting the patient.