WSR 99-07-121

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed March 24, 1999, 9:38 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-14-120.

Title of Rule: Sexual misconduct and patient abuse.

Purpose: Sexual contact with patients and patient abuse are violations of the Uniform Disciplinary Act (RCW 18.130.180(24)). These proposed rules would create language that establishes those acts constituting sexual misconduct and patient abuse. In addition, these rules would establish minimum enforcement standards for physicians and physician assistants.

Other Identifying Information: WAC 246-918-115, 246-918-116, 246-919-630, and 246-919-640.

Statutory Authority for Adoption: RCW 18.71.017.

Statute Being Implemented: RCW 18.130.180(24).

Summary: While RCW 18.130.180(24) has determined sexual contact with patients and patient abuse are considered unprofessional conduct, these terms are very broad. These rules would establish definitions of behavior that would clarify what acts constitute a violation.

Reasons Supporting Proposal: These rules are needed to ensure protection of the public.

Name of Agency Personnel Responsible for Drafting: Susan Anthony, Licensing Program Manager, 1300 S.E. Quince Street, Olympia, (360) 236-4787; Implementation: Beverly A. Teeter, Administrator, 1300 S.E. Quince Street, Olympia, (360) 236-4788; and Enforcement: Bonnie King, Executive Director, 1300 S.E. Quince Street, Olympia, (360) 236-4789.

Name of Proponent: Medical Quality Assurance Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: Behavior that is found to violate the Uniform Disciplinary Act is currently actionable by regulated professions. These rules establish definitions of those acts constituting sexual misconduct and patient abuse.

These rules establish minimum enforceable standards of conduct in these areas for licensed physicians and physician assistants. In all likelihood, these rules will not reduce or eliminate complaints of sexual misconduct or patient abuse, however it establishes basic conduct criterion consistent for use by both the practitioners and the commission.

Proposal does not change existing rules.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

and

Economic Impact Analysis



I. Background: Sexual contact with patients and patient abuse are violations of the Uniform Disciplinary Act (RCW 18.130.180(24)). "Abuse of a client or patient" and "sexual contact with a client or patient" are very broad terms and do not specify what behavior or conduct constitutes sexual misconduct or patient abuse. These proposed rules would create language that would establish the specifics of [that] constitute sexual misconduct and patient abuse.

II. Financial Impact on Regulated Parties:

Recordkeeping and Reporting: There are no record-keeping requirements as a result of this rule. Reporting requirements regarding unprofessional conduct by physician and/or physician assistant would remain the same.

Training and Education: The conduct indicated in the proposed new rules currently constitutes violation of the Uniform Disciplinary Act. The behavior described in these rules would at any time be reasonably interpreted as unprofessional conduct. There are no training or education requirements as a result of this rule.

New Equipment Requirements: There are no new equipment requirements as a result of this rule.

Inspections - Audits: Behavior reported in these areas are currently being investigated as violations of the Uniform Disciplinary Act. Beyond the established, routine investigatory steps, there are no inspection or audit requirements as a result of this rule.

New Licenses/Fees: There are no fee requirements as a result of this rule.

Administration Expenses and Professional Services: Beyond the current case development costs, there are no additional administration expenses, nor an additional need for professional services as a result of this rule.

Reduced Production: There would be no reduced production as a result of this rule.

Summary: Behavior that is found to violate the Uniform Disciplinary Act is currently actionable by regulated professions. These rules establish definitions of those acts constituting sexual misconduct and patient abuse. These rules establish enforceable minimum standards of conduct in these areas for physicians and physician assistants.

III. Cost to DOH: Aside from the initial rule processing costs, such as conducting the public rule-writing workshops, formal rules hearing and updating forms and notices, there will be no additional cost to the Department of Health, as reports of behavior as described in these rules are currently investigated as violations of the Uniform Disciplinary Act.

Small Business Economic Impact Statement: Individual providers qualify as small businesses since less than fifty people are employed. Since most providers qualify as small businesses, there is no disproportionate impact to small businesses. When there is no disproportionate impact, mitigation is not necessary.

All licensed practitioners are governed under RCW 18.130.180.

Public involvement has been solicited from interested parties lists and from licensees via an article in the Medical Quality Assurance Commission UPDATE! publication. In addition, two public rule-writing workshops were held, one on April 15, 1998, in Spokane and one on April 16, 1998, in SeaTac.

Opportunity for written and oral comments will also be provided during the formal public rules hearing to be held May 27, 1999.

A copy of the statement may be obtained by writing to Susan Anthony, Licensing Program Manager, Department of Health, Medical Quality Assurance Commission, P.O. Box 47866, Olympia, WA 98504-7866, fax (360) 586-4787.

RCW 34.05.328 applies to this rule adoption.

Hearing Location: Seattle Airport Hilton, 17620 Pacific Highway South, Seattle, WA 98188, on May 27, 1999, at 11:00 a.m.

Assistance for Persons with Disabilities: TDD (800) 833-6388 or fax (360) 586-4573.

Submit Written Comments to: Susan Anthony, P.O. Box 47866, Olympia, WA 98504-7866, fax (360) 586-4573, by May 21, 1999.

Date of Intended Adoption: May 28, 1999.

March 12, 1999

Bonnie L. King

Executive Director

OTS-2572.2


NEW SECTION
WAC 246-918-115
Sexual misconduct.

(1) A licensee shall not engage in sexual misconduct. A licensee engages in sexual misconduct when he or she recklessly or intentionally:

(a) Engages in intimate physical contact with a patient, by direct skin contact or through clothing, that has no legitimate medical purpose;

(b) Engages in conduct which may reasonably be interpreted by the patient as romantic involvement with the patient;

(c) Engages in behavior which may reasonably be interpreted by the patient as being of a sexual nature or be interpreted as intended for the sexual arousal or gratification of the licensee, the patient, or a third person;

(d) Engages in behavior that suggests that the licensee has a romantic interest in the patient;

(e) Engages in communications with a patient that could be reasonably interpreted as flirtatious, or which employs sexual innuendo, sexual jokes, or offensive language;

(f) Discusses aspects of his or her intimate life with a patient;

(g) Solicits or engages in a romantic relationship with a family member of a patient who may be vulnerable to being induced into such a relationship due to the condition or treatment of the patient; or

(2) A licensee may not engage in any of the behaviors described in subsection (1) of this section with a former patient if the licensee:

(a) Uses or exploits the trust, knowledge, influence or emotions derived from the professional relationship;

(b) Uses privileged information or access to privileged information to meet the licensee's personal or sexual needs; or

(c) Abuses his or her power or authority.

(3) This section does not prohibit behavior that is required for medically recognized diagnostic or treatment purposes if the behavior meets the standard of care appropriate to the diagnostic or treatment situation.

(4) If the department presents evidence of the existence of a licensee-patient relationship, the commission will presume the relationship existed unless the licensee shows the licensee-patient relationship did not exist at the time of the alleged behavior.

(5) A violation of any provision of this rule shall constitute grounds for disciplinary action under RCW 18.130.180(7).

(6) It is not a defense that the patient, family member or former patient, consented to the behavior, that the contact was initiated by the patient, or that the behavior occurred outside the professional setting.

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NEW SECTION
WAC 246-918-116
Abuse.

(1) A licensee commits unprofessional conduct under RCW 18.130.180(24) if the licensee abuses a patient. A licensee abuses a patient when the licensee recklessly or intentionally:

(a) Makes unconsented and unnecessary physical contact with a patient;

(b) Makes unnecessary comments about the patient's body, clothing, sexual history, or sexual orientation that has no legitimate medical purpose;

(c) Yells or uses insulting or profane language toward a patient;

(d) Fails to respect a patient's dignity or privacy by failing to provide appropriate gowns and private facilities for dressing, undressing and examination;

(e) Causes unnecessary pain or discomfort to a patient;

(f) Removes a patient's clothing or gown without the patient's consent;

(g) Fails to treat an unconscious patient's body or property respectfully; or

(h) Engages in any other behavior which demeans, humiliates, embarrasses, threatens or harms the patient, whether done physically, verbally or by gestures.

(2) A violation of any provision of this rule shall constitute grounds for disciplinary action under RCW 18.130.180(7).

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OTS-2573.2


NEW SECTION
WAC 246-919-630
Sexual misconduct.

(1) A licensee shall not engage in sexual misconduct. A licensee engages in sexual misconduct when he or she recklessly or intentionally:

(a) Engages in intimate physical contact with a patient, by direct skin contact or through clothing, that has no legitimate medical purpose;

(b) Engages in conduct which may reasonably be interpreted by the patient as romantic involvement with the patient;

(c) Engages in behavior which may reasonably be interpreted by the patient as being of a sexual nature or be interpreted as intended for the sexual arousal or gratification of the licensee, the patient, or a third person;

(d) Engages in behavior that suggests that the licensee has a romantic interest in the patient;

(e) Engages in communications with a patient that could be reasonably interpreted as flirtatious, or which employs sexual innuendo, sexual jokes, or offensive language;

(f) Discusses aspects of his or her intimate life with a patient;

(g) Solicits or engages in a romantic relationship with a family member of a patient who may be vulnerable to being induced into such a relationship due to the condition or treatment of the patient; or

(2) A licensee may not engage in any of the behaviors described in subsection (1) of this section with a former patient if the licensee:

(a) Uses or exploits the trust, knowledge, influence or emotions derived from the professional relationship;

(b) Uses privileged information or access to privileged information to meet the licensee's personal or sexual needs; or

(c) Abuses his or her power or authority.

(3) This section does not prohibit behavior that is required for medically recognized diagnostic or treatment purposes if the behavior meets the standard of care appropriate to the diagnostic or treatment situation.

(4) If the department presents evidence of the existence of a licensee-patient relationship, the commission will presume the relationship existed unless the licensee shows the licensee-patient relationship did not exist at the time of the alleged behavior.

(5) A violation of any provision of this rule shall constitute grounds for disciplinary action under RCW 18.130.180(7).

(6) It is not a defense that the patient, family member or former patient, consented to the behavior, that the contact was initiated by the patient, or that the behavior occurred outside the professional setting.

[]


NEW SECTION
WAC 246-919-640
Abuse.

(1) A licensee commits unprofessional conduct under RCW 18.130.180(24) if the licensee abuses a patient. A licensee abuses a patient when the licensee recklessly or intentionally:

(a) Makes unconsented and unnecessary physical contact with a patient;

(b) Makes unnecessary comments about the patient's body, clothing, sexual history, or sexual orientation that has no legitimate medical purpose;

(c) Yells or uses insulting or profane language toward a patient;

(d) Fails to respect a patient's dignity or privacy by failing to provide appropriate gowns and private facilities for dressing, undressing and examination;

(e) Causes unnecessary pain or discomfort to a patient;

(f) Removes a patient's clothing or gown without the patient's consent;

(g) Fails to treat an unconscious patient's body or property respectfully; or

(h) Engages in any other behavior which demeans, humiliates, embarrasses, threatens or harms the patient, whether done physically, verbally or by gestures.

(2) A violation of any provision of this rule shall constitute grounds for disciplinary action under RCW 18.130.180(7).

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Washington State Code Reviser's Office