WSR 15-19-057 PROPOSED RULES DEPARTMENT OF HEALTH (Veterinary Board of Governors) [Filed September 11, 2015, 2:23 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-03-072.
Title of Rule and Other Identifying Information: WAC 246-934-100 Sexual misconduct, the veterinary board of governors (VBOG) is proposing rule modification to sexual misconduct standards to clarify what forcible or nonconsensual acts are within the definition of sexual misconduct by veterinary health care providers.
Hearing Location(s): Creekside Two at CenterPoint, 20425 72nd Avenue South, Room 307, Kent, WA 98032, on December 7, 2015, at 11:00 a.m.
Date of Intended Adoption: December 7, 2015.
Submit Written Comments to: Loralei Walker, P.O. Box 47852, Olympia, WA 98504-7852, e-mail http://www3.doh.wa.gov/policyreview/, fax (360) 236-2901, by November 19, 2015.
Assistance for Persons with Disabilities: Contact Loralei Walker by November 20, 2015, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rule clarifies what forcible or nonconsensual acts are within the definition of sexual misconduct. The proposed rule also updates and establishes clearer standards of conduct for veterinary health care providers by adding to the existing rules sexual contact with any person, including people who are not clients or key parties that involves force, intimidation, lack of consent, or a conviction of a sex offense listed in RCW 9.94A.030.
Reasons Supporting Proposal: The department's experience with investigating and enforcing the current rule has raised the need to clarify what acts constitute sexual misconduct. The proposal will establish clearer standards of conduct for providers and will help the consistent enforcement of sexual misconduct rules to more fully comply with RCW 18.130.062 and Executive Order 06-03.
Statute Being Implemented: RCW 18.130.062.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: VBOG, governmental.
Name of Agency Personnel Responsible for Drafting: Brett Lorentson, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-4611; Implementation and Enforcement: Loralei Walker, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-4947.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.025 and 34.05.310 (4)(d), a small business economic impact statement is not required for proposed rules that only clarify the language of a rule without changing its effect.
A cost-benefit analysis is not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328 (5)(b)(iv). Rule making that only clarifies language of a rule without changing its effect does not require a cost-benefit analysis.
September 11, 2015
Ethan C. Nelson, DVM
Chair
AMENDATORY SECTION (Amending WSR 07-06-027, filed 2/28/07, effective 3/31/07)
WAC 246-934-100 Sexual misconduct.
(1) A health care provider shall not engage, or attempt to engage, in sexual misconduct with a key party, inside or outside the health care setting. Key party initiation or consent does not excuse or negate the health care provider's responsibility. 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;
(c) Rubbing against a key party for sexual gratification;
(d) Kissing, touching, fondling or caressing of a romantic or sexual nature;
(e) Encouraging masturbation or other sex act in the presence of the health care provider;
(f) Masturbation or other sex act by the health care provider in the presence of the key party;
(g) Suggesting the possibility of a sexual or romantic dating relationship;
(h) Discussing the sexual history, preferences or fantasies of the health care provider;
(i) Any behavior, gestures, or expressions that may reasonably be interpreted as seductive or sexual;
(j) Making statements regarding the key party's body, sexual history, or sexual orientation;
(k) Any verbal or physical contact which may reasonably be interpreted as sexually demeaning;
(l) Taking sexually explicit photographs or films of a key party;
(m) Showing a key party sexually explicit photographs.
(2) Sexual misconduct also includes 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 or professional knowledge in exchange for sexual favors;
(b) Use health care information to contact the key party for the purpose of engaging in sexual misconduct or to meet the health care provider's sexual needs.
(3) A health care provider shall not engage, or attempt to engage, in the activities listed in subsection (1) of this section with a former key party when:
(a) There is a significant likelihood that the key party will seek or require additional services from the health care provider; or
(b) The provider uses or exploits the trust, knowledge, influence or emotions derived from the professional relationship; or
(c) The health care provider uses or exploits privileged information or access to privileged information to meet the health care provider's sexual needs.
(4) When evaluating whether a health care provider is attempting to engage, or has engaged, in sexual misconduct, the board may consider factors((,)) including, but not limited to:
(a) Documentation of a formal termination and the circumstances of termination of the health care provider-patient relationship;
(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 health care services were rendered to the patient;
(e) Communication between the health care provider and the key party between the last health care services rendered and commencement of the personal relationship;
(f) Nature of the patient's health condition during and since the professional relationship;
(g) The key party's emotional dependence and vulnerability; and
(h) Normal revisit cycle for the profession and service.
(5) 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 legitimate health care purpose and that meets the standard of care appropriate to the profession; or
(c) Providing health care services for a legitimate health care purpose to an animal patient for a key party who is in a preexisting, established personal relationship with a health care provider where there is no evidence of, or potential for, exploiting the key party.
Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040. |