WSR 07-21-131

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed October 23, 2007, 4:05 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 07-03-048.

Title of Rule and Other Identifying Information: WAC 246-811-020 Sexual misconduct -- Chemical dependency professionals, 246-809-049 Licensed marriage and family therapists, licensed mental health counselors, licensed advanced social workers, licensed independent clinical social workers, 246-810-049 Registered counselors, hypnotherapists, and 246-930-490 Sex offender treatment providers.

Hearing Location(s): Department of Health, 310 Israel Road S.E., Room 152/153, Tumwater, WA 98503, on December 18, 2007, at 9:00 a.m.

Date of Intended Adoption: December 18, 2007.

Submit Written Comments to: Betty Moe, Department of Health, P.O. Box 47869, Olympia, WA 98504-7869, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-4909, by December 14, 2007.

Assistance for Persons with Disabilities: Contact Betty Moe by December 11, 2007, TTY (800) 833-6388 or 711.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules set high standards and will help sex offender treatment providers, licensed marriage and family therapists, licensed mental health counselors, licensed advanced social workers, licensed independent clinical social workers, registered counselors, hypnotherapists, and chemical dependency professionals, avoid sexual misconduct and educate the public about what they should expect from their health care provider. The proposed rules eliminate redundant language that is no longer necessary, adopt by reference most of the model sexual misconduct rules in chapter 246-16 WAC, and adopt higher sexual misconduct standards in certain areas uniquely related to counseling.

Reasons Supporting Proposal: The proposed rules will establish clear and consistent definitions of sexual misconduct and the expectations for a sex offender treatment provider, licensed marriage and family therapist, licensed mental health counselor, licensed advanced social worker, licensed independent clinical social worker, registered counselor, hypnotherapist, and chemical dependency professional in the practitioner/patient relationship. The proposal responds to the governor's executive order 06-03 to promote patient safety and awareness.

Statutory Authority for Adoption: RCW 18.55.040, 18.19.050, 18.225.040, 18.205.060, 18.130.50 [18.130.050].

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 (DOH), governmental.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Betty Moe, Department of Health, P.O. Box 47869, Olympia, WA 98504-7869, (360) 236-4912.

No small business economic impact statement has been prepared under chapter 19.85 RCW. DOH has reviewed the proposal and determined that no small business economic impact statement 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 Betty Moe, Department of Health, P.O. Box 47869, Olympia, WA 98504-7869, phone (360) 236-4912, fax (360) 236-4909, e-mail Betty.Moe@doh.wa.gov.

October 23, 2007

Mary C. Selecky

Secretary

OTS-9838.7


AMENDATORY SECTION(Amending WSR 06-09-032, filed 4/12/06, effective 5/13/06)

WAC 246-809-049   Sexual misconduct.   (((1) A licensed counselor shall not engage in sexual contact or sexual activity with current clients.

(2) Licensed counselors shall not accept as patients or clients individuals with whom they have engaged in sexual contact or activity.

(3) A licensed counselor shall not engage in sexually harassing or demeaning behavior with clients.

(4) Sexual contact or activity with a client, or an individual who has been a client within the past two years, constitutes unprofessional conduct.

(5) Licensed counselors shall never engage in sexual contact or activity with former clients, if the contact or activity involves the abuse of the licensed counselor-client relationship.

(a) The department may consider the following factors in evaluating whether the licensed counselor-client relationship has been abusive:

(i) The amount of time that has passed since therapy was terminated, where there is no contact of any kind between licensed counselor and client;

(ii) The nature and duration of the therapy;

(iii) The circumstances of cessation or termination of therapy;

(iv) The client's personal history;

(v) The client's current mental status, emotional dependence, and vulnerability;

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

(vii) Any statements or actions made by the licensed counselor during the course of therapy suggesting or inviting the possibility of a post termination sexual or romantic relationship with the client.

(b) If a licensed counselor engages in sexual contact or activity with a client more than two years after the last therapeutic session, the licensed counselor has had no contact with the client during the two-year period, and the sexual activity is not abusive of the licensed counselor-client relationship the department will not consider the relationship to be unprofessional conduct.)) (1) The definitions and prohibitions on sexual misconduct described in chapter 246-16 WAC apply to licensed marriage and family therapists, licensed mental health counselors, and licensed social workers except WAC 246-16-100 (3) and (4).

(2) A licensed marriage and family therapist, licensed mental health counselor, or licensed social worker shall never engage, or attempt to engage, in the activities listed in WAC 246-16-100(1) with a former patient, former client or former key party.

[Statutory Authority: RCW 18.225.040, 18.130.050. 06-09-032, 246-809-049, filed 4/12/06, effective 5/13/06.]

OTS-9851.5


AMENDATORY SECTION(Amending WSR 97-17-113, filed 8/20/97, effective 9/20/97)

WAC 246-810-049   Sexual misconduct.   (((1) A counselor shall not engage in sexual contact or sexual activity with current clients.

(2) Counselors shall not accept as patients or clients individuals with whom they have engaged in sexual contact or activity.

(3) A counselor shall not engage in sexually harassing or demeaning behavior with clients.

(4) Sexual contact or activity with a client, or an individual who has been a client within the past two years, constitutes unprofessional conduct.

(5) Counselors shall never engage in sexual contact or activity with former clients, if such contact or activity involves the abuse of the counselor-client relationship.

(a) The department may consider the following factors in evaluating if the counselor-client relationship has been abusive:

(i) The amount of time that has passed where there is no contact of any kind between counselor and client since therapy terminated;

(ii) The nature and duration of the therapy;

(iii) The circumstances of cessation or termination of therapy;

(iv) The client's personal history;

(v) The client's current mental status, emotional dependence and vulnerability;

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

(vii) Any statements or actions made by the counselor during the course of therapy suggesting or inviting the possibility of a post termination sexual or romantic relationship with the client.

(b) If a counselor engages in sexual contact or activity with a client more than two years after the last therapeutic session, the counselor has had no contact with the client during the two-year period, and the sexual activity is not abusive of the counselor-client relationship the department will not consider the relationship to be unprofessional conduct.)) (1) The definitions and prohibitions on sexual misconduct described in chapter 246-16 WAC apply to counselors except WAC 246-16-100 (3) and (4).

(2) A counselor shall never engage, or attempt to engage, in the activities listed in WAC 246-16-100(1) with a former patient, former client or former key party.

[Statutory Authority: RCW 18.19.050(1). 97-17-113, 246-810-049, filed 8/20/97, effective 9/20/97.]

OTS-9839.5


NEW SECTION
WAC 246-811-020   Sexual misconduct.   (1) The definitions and prohibitions on sexual misconduct described in chapter 246-16 WAC apply to chemical dependency professionals except WAC 246-16-100 (3) and (4).

(2) A chemical dependency professional shall never engage, or attempt to engage, in the activities listed in WAC 246-16-100(1) with a former patient, former client or former key party.

[]

OTS-9840.6


AMENDATORY SECTION(Amending WSR 05-12-014, filed 5/20/05, effective 6/20/05)

WAC 246-930-490   Sexual misconduct.   (((l) Sex offender treatment providers shall not engage in sexual contact or sexual activity with their clients.

(2) Sexual contact or sexual activity is prohibited with former clients for ten years after cessation or termination of professional services.

(3) The sex offender treatment provider shall not engage in sexual contact or sexual activity with any former client if such contact or activity involves the abuse of the sex offender treatment provider and client relationship. Factors to be considered in evaluating if the sex offender treatment provider and client relationship is abusive include, but are not limited to:

(a) The amount of time that has passed since the last therapeutic contact;

(b) The nature and duration of the therapy;

(c) The circumstances of cessation or termination;

(d) The client's personal history;

(e) The client's current mental status;

(f) The likelihood of adverse impact on the client and others; and

(g) Any statements or actions made by the therapist during the course of therapy suggesting or inviting the possibility of a post termination sexual or romantic relationship with the client.

(4) The sex offender treatment provider shall not engage in sexual contact or sexual activity with any person participating in the treatment process of a client while the therapy is ongoing.

(5) The sex offender treatment provider shall not engage in sexual contact or sexual activity with any person formally participating in the treatment process, if such contact or activity involves the abuse of the sex offender treatment provider and client relationship. Factors to be considered in evaluating if the sex offender treatment provider and client relationship is abusive include, but are not limited to:

(a) The amount of time that has passed since the last therapeutic contact;

(b) The amount of time that has passed since the last professional contact between the provider and the other person;

(c) The knowledge the provider has obtained about the person because of the professional contact; and

(d) The likelihood of adverse impact on the former client.)) (1) The definitions and prohibitions on sexual misconduct described in chapter 246-16 WAC apply to affiliate sex offender treatment providers and certified sex offender treatment providers except WAC 246-16-100 (3) and (4).

(2) An affiliate sex offender treatment provider or certified sex offender treatment provider shall never engage, or attempt to engage, in the activities listed in WAC 246-16-100(1) with a former patient, former client or former key party.

[Statutory Authority: RCW 18.155.040. 05-12-014, 246-930-490, filed 5/20/05, effective 6/20/05; 94-13-179, 246-930-490, filed 6/21/94, effective 7/22/94.]

Washington State Code Reviser's Office