WSR 07-08-040

PERMANENT RULES

DEPARTMENT OF HEALTH


(Board of Pharmacy)

[ Filed March 28, 2007, 8:56 a.m. , effective April 28, 2007 ]


Effective Date of Rule: Thirty-one days after filing.

Purpose: The adoption of new WAC 246-860-010, 246-860-020, and 246-860-100 is needed to protect the public by establishing clear and consistent definitions of sexual misconduct by health care providers regulated by the board of pharmacy. The rules are intended to help pharmacists, pharmacy interns, and pharmacy ancillary staff avoid sexual misconduct and educate consumers on conduct by health care providers that are inappropriate and may be grounds for discipline.

Statutory Authority for Adoption: RCW 18.64.005 and 18.130.050.

Adopted under notice filed as WSR 06-22-098 on November 1, 2006.

Changes Other than Editing from Proposed to Adopted Version: Rule language changes were made to: Subsection (3), adding "with a former patient, client or key party" after the word section to make clear that subsection (3) spoke specifically to situations involving former patients; and subsection (4) was changed to read more clearly by deleting "is prohibited from engaging" and adding the word "engaged" after health care provider.

A final cost-benefit analysis is available by contacting Doreen E. Beebe, Board of Pharmacy, P.O. Box 47863, Olympia, WA 98504-7863, phone (360) 236-4834, fax (360) 586-4359, e-mail doreen.beebe@doh.wa.gov.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 3, Amended 0, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 3, Amended 0, Repealed 0.

Date Adopted: December 14, 2006.

Lisa Salmi

for Rebecca Hille

Board Chair

OTS-9289.3

Chapter 246-860 WAC

STANDARDS OF PROFESSIONAL CONDUCT


NEW SECTION
WAC 246-860-010   Purpose of chapter.   The rules in this chapter define certain acts of unprofessional conduct for all individual holders of licenses, registrations and certifications issued by the board of pharmacy.

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NEW SECTION
WAC 246-860-020   Definitions.   (1) "Health care information" means any information, whether oral or recorded in any form or medium that identifies or can readily be associated with the identity of, and relates to the health care of, a patient or client.

(2) "Health care provider" means an individual applying for a credential or credentialed as a pharmacist, pharmacy intern or pharmacy ancillary personnel.

(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 consistent with community standards for the practice of pharmacy as defined in RCW 18.64.011(11).

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

(6) "Pharmacist" means a person licensed by the Washington state board of pharmacy to engage in the practice of pharmacy.

(7) "Pharmacy ancillary personnel" means persons certified as a pharmacy technician or registered as a pharmacy assistant under chapter 18.64A RCW to engage in the practice of pharmacy under the direct supervision of a licensed pharmacist and to the extent permitted by the board in accordance with chapter 18.64A RCW.

(8) "Pharmacy intern" means a person registered by the Washington state board of pharmacy to engage in the practice of pharmacy.

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SEXUAL MISCONDUCT
NEW SECTION
WAC 246-860-100   Sexual misconduct.   (1) A health care provider shall not engage, or attempt to engage, in sexual misconduct with a current patient, client, or key party, inside or outside the health care setting. 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 except as consistent with accepted community standards of practice 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) Not allowing a patient or client privacy to dress or undress except as may be necessary in emergencies or custodial situations;

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

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

(i) Removing patient's or client's clothing or gown or draping without consent, emergent medical necessity or being in a custodial setting;

(j) Encouraging masturbation or other sex act in the presence of the health care provider;

(k) Masturbation or other sex act by the health care provider in the presence of the patient, client or key party;

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

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

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

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

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

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

(r) 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;

(s) 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

(t) 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 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.

(4) When evaluating whether a health care provider engaged, or attempted to engage, in sexual misconduct, the board 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.

(5) Patient, client or key party initiation or consent does not excuse or negate the health care provider's responsibility.

(6) 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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Washington State Code Reviser's Office