Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-22-125.

     Title of Rule and Other Identifying Information: New chapter 246-16 WAC, Standards of professional conduct, including WAC 246-16-010 Purpose of chapter, 246-16-020 Definitions, and 246-16-100 Sexual misconduct. The proposed rules establish clear and consistent definitions of sexual misconduct by health care practitioners regulated by the secretary. They also serve as model rules for professions regulated by other disciplining authorities.

     Hearing Location(s): Department of Health, Point Plaza East, Room 152, 310 Israel Road S.E., Tumwater, WA, on August 23, 2006, at 2:00 p.m.

     Date of Intended Adoption: August 30, 2006.

     Submit Written Comments to: Margaret Gilbert, Department of Health, P.O. Box 47873, Olympia, WA 98504-7873, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-4930, by August 22, 2006.

     Assistance for Persons with Disabilities: Contact Margaret Gilbert by August 18, 2006, TTY (800) 833-6388 or 711.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules will establish clear definitions for sexual misconduct by health care providers. The proposed rules are anticipated to help health care providers avoid sexual misconduct and to educate consumers about what they should expect from health care providers.

     Reasons Supporting Proposal: Currently, most professions have no definition for sexual misconduct, and those professions that have adopted rules have inconsistent definitions. The proposed rules will establish a clear and consistent definition of sexual misconduct and establish expectations for health care provider conduct. Executive Order 06-03, Investigation of health professional sexual misconduct, requires a comprehensive definition of sexual misconduct.

     Statutory Authority for Adoption: RCW 18.130.050 (1) and (12).

     Statute Being Implemented: RCW 18.130.180 and 18.130.160.

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

     Name of Proponent: Department of health (DOH), governmental.

     Name of Agency Personnel Responsible for Drafting: Margaret Gilbert, Department of Health, P.O. Box 47873, Olympia, WA 98504-7873, (360) 236-4913; Implementation and Enforcement: Laurie Jinkins, Department of Health, P.O. Box 47850, Olympia, WA 98504-7850, (360) 236-4600.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. DOH has reviewed the proposed and determined no SBEIS is required because the proposed rules do not impose more than minor costs on businesses within the industry.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Margaret Gilbert, Department of Health, P.O. Box 47873, Olympia, WA 98504-7873, phone (360) 236-4913, fax (360) 236-4903, e-mail Margaret.Gilbert@doh.wa.gov.

July 17, 2006

Mary C. Selecky

Secretary

OTS-8866.6

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     (2) "Health care provider" means an individual applying for a credential or credentialed in a profession listed in RCW 18.130.040 (2)(a).

     (3) "Key party" means immediate family members and others who would be reasonably expected to play a significant role in the health care decisions of the patient or client and includes, but is not limited to, the spouse, domestic partner, sibling, parent, child, guardian and person authorized to make health care decisions of the patient or client.

     (4) "Legitimate health care purpose" means activities for examination, diagnosis, treatment, and personal care of patients or clients, including palliative care, as consistent with community standards of practice for the profession. The activity must be within the scope of practice of the health care provider.

     (5) "Patient" or "client" means an individual who receives health care from a health care provider.

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     (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 practitioner's scope of practice;

     (c) Rubbing against a patient or client or key party for sexual gratification;

     (d) Kissing;

     (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 or client privacy to dress or undress except as may be necessary in emergencies or custodial situations;

     (h) Not providing the patient or client a gown or draping except as may be necessary in emergencies;

     (i) Dressing or undressing in the presence of the patient, client or key party;

     (j) Removing patient or client'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, client or key party;

     (m) Suggesting or discussing the possibility of a dating, sexual or romantic relationship after the professional relationship ends;

     (n) Terminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship;

     (o) Soliciting a date with a patient, client or key party;

     (p) Discussing the sexual history, preferences or fantasies of the health care provider;

     (q) Any behavior, gestures, or expressions that may reasonably be interpreted as seductive or sexual;

     (r) Making statements regarding the patient, client or key party's body, appearance, sexual history, or sexual orientation other than for legitimate health care purposes;

     (s) Sexually demeaning behavior including any verbal or physical contact which may reasonably be interpreted as demeaning, humiliating, embarrassing, threatening or harming a patient, client or key party;

     (t) Photographing or filming the body or any body part or pose of a patient, client, or key party, other than for legitimate health care purposes; and

     (u) Showing a patient, client or key party sexually explicit photographs, other than for legitimate health care purposes.

     (2) 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, client 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.

     (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 patient, client or key party within two years after the provider-patient/client relationship ends.

     (4) After the two-year period of time described in subsection (3) of this section, a health care provider shall not engage, or attempt to engage, in the activities listed in subsection (1) of this section if:

     (a) There is a significant likelihood that the patient, client or key party will seek or require additional services from the health care provider; or

     (b) There is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship.

     (5) When evaluating whether a health care provider is prohibited from engaging, or attempting to engage, in sexual misconduct, the secretary will consider factors, including but not limited to:

     (a) Documentation of a formal termination and the circumstances of termination of the provider-patient relationship;

     (b) Transfer of care to another health care provider;

     (c) Duration of the provider-patient relationship;

     (d) Amount of time that has passed since the last health care services to the patient or client;

     (e) Communication between the health care provider and the patient or client between the last health care services rendered and commencement of the personal relationship;

     (f) Extent to which the patient's or client's personal or private information was shared with the health care provider;

     (g) Nature of the patient or client's health condition during and since the professional relationship;

     (h) The patient or client's emotional dependence and vulnerability; and

     (i) Normal revisit cycle for the profession and service.

     (6) Patient, client 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 that profession; or

     (c) Providing health care 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 or client.

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