WSR 05-17-188

PROPOSED RULES

DEPARTMENT OF HEALTH


(Medical Quality Assurance Commission)

[ Filed August 24, 2005, 9:10 a.m. ]

Original Notice.

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

Title of Rule and Other Identifying Information: WAC 246-919-630 Sexual misconduct, 246-919-640 Abuse for physicians, 246-918-410 Sexual abuse, and 246-918-420 Abuse for physician assistants.

Hearing Location(s): Holiday Inn Select, One South Grady Way, Renton, WA 98055, on November 18, 2005, at 8:00 a.m.

Date of Intended Adoption: November 18, 2005.

Submit Written Comments to: Beverly A. Thomas, Program Manager, P.O. Box 47866, Olympia, WA 98504, e-mail beverly.thomas@doh.wa.gov, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-4768, by November 1, 2005.

Assistance for Persons with Disabilities: Contact Beverly A. Thomas, Program Manager, (360) 236-4788, TTY (800) 833-6388 or (360) 236-4788.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The Medical Quality Assurance Commission (commission) is proposing the new rules prohibiting practitioners from engaging in sexual misconduct or abuse with patients and former patients. Since 1998, the commission received 160 complaints about sexually inappropriate behavior by physicians and physician assistants. Some of these complaints involve behavior that does not constitute "sexual contact" under RCW 18.130.180(24). The Uniform Disciplinary Act of RCW 18.130.180(24) describes abuse or sexual contact as unprofessional conduct, but does not provide sufficient detail for the commission to determine when the practitioner's behavior no longer reflects appropriate professional contact. Because the law is not explicit, it is sometimes difficult for the commission to take disciplinary action against a licensee. Some practitioners argue that they were not aware that their behavior was inappropriate. The proposed rules will allow the commission to take action on a broader range of inappropriate behaviors, and will educate practitioners by clarifying the behavior that the commission believes is inappropriate.

Reasons Supporting Proposal: The purpose for the proposed rules is to raise the awareness of sexual inappropriate behaviors and prevent physicians and physician assistants from engaging in abusive or sexual contact or sexual activity with current and former patients. The commission can have difficulty taking action against a practitioner's license who engages in sexually inappropriate behavior that does not constitute "sexual contact" under RCW 18.130.180(24). When the commission evaluates a case involving a sexual boundary issue in which the behavior does not constitute "sexual contact," the commission either takes action under RCW 18.130.180(1) on the theory the conduct constitute "moral turpitude," or simply closes the case. The proposed rule will allow the commission to better protect the public by taking disciplinary action in a wider range of inappropriate behaviors.

Statutory Authority for Adoption: RCW 18.130.180, 18.71.017, and 18.71A.020.

Statute Being Implemented: Chapters 18.71, 18.71A, and 18.130 RCW.

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

Name of Proponent: Department of Health, Medical Quality Assurance Commission, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Beverly A. Thomas, 310 Israel Road S.E., Tumwater, WA 98501, (360) 236-4788.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The agency has not conducted a small business [economic] impact statement. The proposed rule does not impose more than minor costs on small business per RCW 19.85.030.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Beverly A. Thomas, Program Manager, Medical Quality Assurance Commission, P.O. Box 47866, Olympia, WA 98504, phone (360) 236-4788, fax (360) 236-4768, e-mail beverly.thomas@doh.wa.gov.

July 27, 2005

Blake T. Maresh

Executive Director

OTS-7921.4


NEW SECTION
WAC 246-918-410   Sexual misconduct.   (1) Definitions:

(a) "Patient" means a person who is receiving health care or treatment, or has received health care or treatment without a termination of the physician assistant-patient relationship. The determination of when a person is a patient is made on a case-by-case basis with consideration given to a number of factors, including the nature, extent and context of the professional relationship between the physician assistant and the person. The fact that a person is not actively receiving treatment or professional services is not the sole determining factor.

(b) "Physician assistant" means a person licensed to practice as a physician assistant under chapter 18.71A RCW.

(c) "Key third party" means a person in a close personal relationship with the patient and includes, but is not limited to, spouses, partners, parents, siblings, children, guardians and proxies.

(2) A physician assistant shall not engage in sexual misconduct with a current patient or a key third party. A physician assistant engages in sexual misconduct when he or she engages in the following behaviors with a patient or key third party:

(a) Sexual intercourse or genital to genital contact;

(b) Oral to genital contact;

(c) Genital to anal contact or oral to anal contact;

(d) Kissing in a romantic or sexual manner;

(e) Touching breasts, genitals or any sexualized body part for any purpose other than appropriate examination or treatment;

(f) Examination or touching of genitals without using gloves;

(g) Not allowing a patient the privacy to dress or undress;

(h) Encouraging the patient to masturbate in the presence of the physician assistant or masturbation by the physician assistant while the patient is present;

(i) Offering to provide practice-related services, such as medications, in exchange for sexual favors;

(j) Soliciting a date;

(k) Engaging in a conversation regarding the sexual history, preferences or fantasies of the physician assistant.

(3) A physician assistant shall not engage in any of the conduct described in subsection (2) of this section with a former patient or key third party if the physician assistant:

(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 physician assistant's personal or sexual needs.

(4) To determine whether a patient is a current patient or a former patient, the commission will analyze each case individually, and will consider a number of factors, including, but not limited to, the following:

(a) Documentation of formal termination;

(b) Transfer of the patient's care to another health care provider;

(c) The length of time that has passed;

(d) The length of time of the professional relationship;

(e) The extent to which the patient has confided personal or private information to the physician assistant;

(f) The nature of the patient's health problem;

(g) The degree of emotional dependence and vulnerability.

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

(6) It is not a defense that the patient, former patient, or key third party initiated or consented to the conduct, or that the conduct occurred outside the professional setting.

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

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NEW SECTION
WAC 246-918-420   Abuse.   (1) A physician assistant commits unprofessional conduct if the physician assistant abuses a patient. A physician assistant abuses a patient when he or she:

(a) Makes statements regarding the patient's body, appearance, sexual history, or sexual orientation that have no legitimate medical or therapeutic purpose;

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

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

(d) Engages in any conduct, whether verbal or physical, which unreasonably demeans, humiliates, embarrasses, threatens, or harms a patient.

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

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OTS-7922.3


NEW SECTION
WAC 246-919-630   Sexual misconduct.   (1) Definitions:

(a) "Patient" means a person who is receiving health care or treatment, or has received health care or treatment without a termination of the physician-patient relationship. The determination of when a person is a patient is made on a case-by-case basis with consideration given to a number of factors, including the nature, extent and context of the professional relationship between the physician and the person. The fact that a person is not actively receiving treatment or professional services is not the sole determining factor.

(b) "Physician" means a person licensed to practice medicine and surgery under chapter 18.71 RCW.

(c) "Key third party" means a person in a close personal relationship with the patient and includes, but is not limited to, spouses, partners, parents, siblings, children, guardians and proxies.

(2) A physician shall not engage in sexual misconduct with a current patient or a key third party. A physician engages in sexual misconduct when he or she engages in the following behaviors with a patient or key third party:

(a) Sexual intercourse or genital to genital contact;

(b) Oral to genital contact;

(c) Genital to anal contact or oral to anal contact;

(d) Kissing in a romantic or sexual manner;

(e) Touching breasts, genitals or any sexualized body part for any purpose other than appropriate examination or treatment;

(f) Examination or touching of genitals without using gloves;

(g) Not allowing a patient the privacy to dress or undress;

(h) Encouraging the patient to masturbate in the presence of the physician or masturbation by the physician while the patient is present;

(i) Offering to provide practice-related services, such as medications, in exchange for sexual favors;

(j) Soliciting a date;

(k) Engaging in a conversation regarding the sexual history, preferences or fantasies of the physician.

(3) A physician shall not engage in any of the conduct described in subsection (2) of this section with a former patient or key third party if the physician:

(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 physician's personal or sexual needs.

(4) To determine whether a patient is a current patient or a former patient, the commission will analyze each case individually, and will consider a number of factors, including, but not limited to, the following:

(a) Documentation of formal termination;

(b) Transfer of the patient's care to another health care provider;

(c) The length of time that has passed;

(d) The length of time of the professional relationship;

(e) The extent to which the patient has confided personal or private information to the physician;

(f) The nature of the patient's health problem;

(g) The degree of emotional dependence and vulnerability.

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

(6) It is not a defense that the patient, former patient, or key third party initiated or consented to the conduct, or that the conduct occurred outside the professional setting.

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

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NEW SECTION
WAC 246-919-640   Abuse.   (1) A physician commits unprofessional conduct if the physician abuses a patient. A physician abuses a patient when he or she:

(a) Makes statements regarding the patient's body, appearance, sexual history, or sexual orientation that have no legitimate medical or therapeutic purpose;

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

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

(d) Engages in any conduct, whether verbal or physical, which unreasonably demeans, humiliates, embarrasses, threatens, or harms a patient.

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

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Washington State Code Reviser's Office