WSR 07-08-104

PROPOSED RULES

DEPARTMENT OF HEALTH


(Nursing Care Quality Assurance Commission)

[ Filed April 4, 2007, 8:51 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 06-14-093.

Title of Rule and Other Identifying Information: Amending WAC 246-840-740 Sexual misconduct prohibited, this rule applies to nurses, advanced registered nurse practitioners and nursing technicians.

Hearing Location(s): Department of Health, Point Plaza East, Room 152/153, 310 Israel Road S.E., Tumwater, WA 98501, on May 11, 2007, at 9:00 a.m.

Date of Intended Adoption: May 11, 2007.

Submit Written Comments to: Kendra Pitzler, P.O. Box 47864, Olympia, WA 98504-7864, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-4723, by May 1, 2007.

Assistance for Persons with Disabilities: Contact Kendra Pitzler by May 1, 2007, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule prohibits sexual misconduct for those who hold a credential issued under chapter 18.79 RCW. The current language refers specifically to "nurses." Nursing technicians may not be aware that this rule also applies to them. The commission wishes to clarify the language to assure that nursing technicians understand that they are held to the same standards as all other nurses and that they may be disciplined if they do not comply with the existing rule.

Reasons Supporting Proposal: Sexual misconduct rules are already in place for nurses, however, this proposed amendment will clearly identify that nursing technicians are subject to the existing rules.

Statutory Authority for Adoption: RCW 18.130.050 and 18.79.110.

Statute Being Implemented: RCW 18.130.180.

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

Name of Proponent: Department of health, nursing care quality assurance commission, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Kendra Pitzler, Department of Health, 310 Israel Road S.E., Tumwater, WA 98501, (360) 236-4723.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This amendment is only to clarify the language of this rule without changing its effect and is exempt under RCW 19.85.025(3). The commission's intent has always been that the rule applies to all persons who hold a credential under chapter 18.79 RCW, including nurses and nursing technicians.

A cost-benefit analysis is not required under RCW 34.05.328. This amendment is only to clarify the language of this rule and is not considered significant. Therefore RCW 84.05.328 [34.05.328] does not apply to this rule. The commission's intent has always been that the rule applies to all persons who hold a credential under chapter 18.79 RCW, including nurses and nursing technicians. Under RCW 34.05.328 (5)(b)(iv), a cost-benefit analysis is not required.

April 3, 2007

Judith D. Personett, EdD. RN, Chair

Nursing Care Quality Assurance Commission

OTS-9466.1


AMENDATORY SECTION(Amending WSR 99-04-051, filed 1/28/99, effective 2/28/99)

WAC 246-840-740   Sexual misconduct prohibited.   (1) What is the nursing commission's intent in prohibiting this type of misconduct?

Sexual or romantic conduct with a client or the client's family is serious misconduct because it harms the nurse/client relationship and interferes with the safe and effective delivery of nursing services. A nurse or nursing technician does not need to be "assigned" to the client in order for the nurse/client relationship to exist. The role of the nurse or nursing technician in the nurse/client relationship places the nurse or nursing technician in the more powerful position and the nurse or nursing technician must not abuse this power. Under certain circumstances, the nurse/client relationship continues beyond the termination of nursing services. Not only does sexual or romantic misconduct violate the trust and confidence held by health care clients towards nursing staff, but it also undermines public confidence in nursing. Nurses and nursing technicians can take measures to avoid allegations of such misconduct by establishing and maintaining professional boundaries in dealing with their clients.

(2) What conduct is prohibited?

Nurses and nursing technicians shall never engage, or attempt to engage, in sexual or romantic conduct with clients, or a client's immediate family members or significant others. Such conduct does not have to involve sexual contact. It includes behaviors or expressions of a sexual or intimately romantic nature. Sexual or romantic conduct is prohibited whether or not the client, family member or significant other initiates or consents to the conduct. Such conduct is also prohibited between a nursing educator and student.

Regardless of the existence of a nurse/client relationship, nurses and nursing technicians shall never use patient information derived through their role as a health care provider to attempt to contact a patient in pursuit of a nurse's own sexual or romantic interests or for any other purpose other than legitimate health care.

(3) What should a nurse or nursing technician do to avoid allegations of sexual or romantic misconduct?

Establishing and maintaining professional boundaries is critical to avoiding even the appearance of sexual or romantic misconduct. Nurses and nursing technicians can take certain preventative steps to make sure safeguards are in place at all times, such as:

(a) Setting appropriate boundaries with patients, physically and verbally, at the outset of professional relationships, and documenting such actions and the basis for such actions;

(b) Consulting with supervisors regarding difficulties in establishing and maintaining professional boundaries with a given client; and/or

(c) Seeking reassignment to avoid incurring a violation of these rules.

(4) What about former clients?

A nurse or nursing technician shall not engage or attempt to engage a former client, or former client's immediate family member or significant other, in sexual or romantic conduct if such conduct would constitute abuse of the nurse/client relationship. The nurse/client relationship is abused when a nurse or nursing technician uses and/or benefits from the nurse's professional status and the vulnerability of the client due to the client's condition or status as a patient.

(a) Due to the unique vulnerability of mental health and chemical dependency clients, nurses and nursing technicians are prohibited from engaging in or attempting to engage in sexual or romantic conduct with such former clients, or their immediate family or significant other, for a period of at least two years after termination of nursing services. After two years, sexual or romantic conduct may be permitted with a former mental health or chemical dependency client, but only if the conduct would not constitute abuse of the nurse/client relationship.

(b) Factors which the commission may consider in determining whether there was abuse of the nurse/client relationship include, but are not limited to:

(i) The amount of time that has passed since nursing services were terminated;

(ii) The nature and duration of the nurse/client relationship, the extent to which there exists an ongoing nurse/client relationship following the termination of services, and whether the client is reasonably anticipated to become a client of the nurse in the future;

(iii) The circumstances of the cessation or termination of the nurse/client relationship;

(iv) The former client's personal history;

(v) The former client's current or past mental status, and whether the client has been the recipient of mental health services;

(vi) The likelihood of an adverse impact on the former client and others;

(vii) Any statements or actions made by the nurse during the course of treatment suggesting or inviting the possibility of sexual or romantic conduct;

(viii) Where the conduct is with a client's immediate family member or significant other, whether such a person is vulnerable to being induced into such relationship due to the condition or treatment of the client or the overall circumstances.

(5) Are there situations where these rules do not apply?

These rules do not prohibit:

(a) The provision of nursing services on an urgent, unforeseen basis where circumstances will not allow a nurse or nursing technician to obtain reassignment or make an appropriate referral;

(b) The provision of nursing services to a spouse, or family member, or any other person who is in a preexisting, established relationship with the nurse or nursing technician where no evidence of abuse of the nurse/client relationship exists.

[Statutory Authority: RCW 18.130.180(24). 99-04-051, 246-840-740, filed 1/28/99, effective 2/28/99.]

Washington State Code Reviser's Office