WSR 06-22-099

PROPOSED RULES

DEPARTMENT OF HEALTH


(Veterinary Board of Governors)

[ Filed November 1, 2006, 10:55 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-11-021.

Title of Rule and Other Identifying Information: New chapter 246-934 WAC, Standards of professional conduct, including WAC 246-934-010 Purpose of chapter, 246-934-020 Definitions, and 246-934-100 Sexual misconduct. The proposed rules establish a clear definition of sexual misconduct for health care providers regulated by the veterinary board of governors including individuals who have applied for a credential or who are credentialed as a veterinarian, veterinary technician or veterinary medication clerk.

Hearing Location(s): Center Point Corporate Park, 20435 72nd South, Kent, WA, on December 11, 2006, at 10:00 a.m.

Date of Intended Adoption: December 11, 2006.

Submit Written Comments to: Judy Haenke, Program Manager, P.O. Box 47868, Olympia, WA 98504-7868, (360) 236-4947, judy.haenke@doh.wa.gov, web site http://www3.doh.wa.gov/policyreview/, fax (360) 586-4359, by December 1, 2006.

Assistance for Persons with Disabilities: Contact Judy Haenke by December 1, 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 a clear definition for sexual misconduct. The proposed rules will help health care providers regulated by the veterinary board of governors avoid sexual misconduct and educate consumers about what should be expected from health care providers.

Reasons Supporting Proposal: Currently, there is no definition of sexual misconduct for veterinary professions. The proposed rules will establish a clear definition of sexual misconduct and establish expectations for conduct by veterinary health care providers. Executive Order 06-03, Investigation of Health Professional Sexual Misconduct, requires a comprehensive definition of sexual misconduct.

Statutory Authority for Adoption: RCW 18.92.030 and 18.130.050 (1), (12).

Statute Being Implemented: RCW 18.130.180 and 18.92.030.

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

Name of Proponent: Department of health, veterinary board of governors, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Judy Haenke, Program Manager, P.O. Box 47868, Olympia, WA 98504-7868, (360) 236-4947.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department of health has reviewed the proposal and determined no small business economic impact statement is required because the proposed rules do not impose more than minor costs on businesses within the industry 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 Judy Haenke, P.O. Box 47868, Olympia, WA 98504-7868, phone (360) 236-4947, fax (360) 586-4359, e-mail judy.haenke@doh.wa.gov.

October 31, 2006

Lisa Salmi

Acting Executive Director

OTS-9211.2

Chapter 246-934 WAC

STANDARDS OF PROFESSIONAL CONDUCT


NEW SECTION
WAC 246-934-010   Purpose of chapter.   The rules in this chapter define certain acts of unprofessional conduct for applicants or holders of licenses or registrations issued by the veterinary board of governors.

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NEW SECTION
WAC 246-934-020   Definitions.   (1) "Animal" means every creature, either alive or dead, other than a human being.

(2) "Board" means the veterinary board of governors.

(3) "Health care information" means any health care information, in any form that is associated with the key party, the patient or the health care of a patient.

(4) "Health care provider" means an individual applying for a credential or credentialed as a veterinary medication clerk, veterinary technician or veterinarian.

(5) "Key party" means persons who would be reasonably expected to play a significant role in the health care decisions for the patient and includes the owner, human companion, guardian, manager or trainer.

(6) "Legitimate health care purpose" means activities for examination, diagnosis, treatment, and personal care of patients, 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.

(7) "Patient" means an animal under the care and treatment of a health care provider.

(8) "Veterinary medication clerk" means a person who is registered under chapter 18.92 RCW to practice as a veterinary medication clerk.

(9) "Veterinary technician" means a person who is registered under chapter 18.92 RCW to practice as a veterinary technician.

(10) "Veterinarian" means a person who is licensed under chapter 18.92 RCW to practice veterinary medicine, surgery and dentistry in the state of Washington.

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SEXUAL MISCONDUCT
NEW SECTION
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 dating, sexual or romantic 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) 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.

(6) Sexual conduct or sexual contact with an animal as defined in RCW 16.52.205 is unprofessional conduct. Violation of RCW 16.52.205 will be reported to the appropriate jurisdiction.

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Washington State Code Reviser's Office