WSR 15-15-042 PROPOSED RULES DEPARTMENT OF HEALTH [Filed July 8, 2015, 12:40 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 14-16-096.
Title of Rule and Other Identifying Information: WAC 246-16-100 Sexual misconduct, the department of health (department) is proposing rule modification to sexual misconduct standards to clarify what forcible or nonconsensual acts are within the definition of sexual misconduct by a health care provider.
Hearing Location(s): Department of Health, Town Center 2, Conference Room 153, 111 Israel Road S.E., Tumwater, WA 98501, on August 25, 2015, at 10:30 a.m.
Date of Intended Adoption: August 27, 2015.
Submit Written Comments to: Maura Craig, P.O. Box 47850, Olympia, WA 98504-7850, e-mail http://www3.doh.wa.gov/policyreview/, fax (360) 236-4626, by August 25, 2015.
Assistance for Persons with Disabilities: Contact Maura Craig at (360) 236-4997 by August 21, 2015, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rule clarifies and updates the sexual misconduct rule to establish clearer standards of conduct for health care providers in professions under the secretary of health's authority per RCW 18.130.040 (2)(a). Clarification of sexual misconduct standards will help health care providers understand what constitutes sexual misconduct, which includes sexual contact with any person including people who are not patients, clients, or key parties that involves force, intimidation, lack of consent; or a conviction of a sex offense listed in RCW 9.94A.030.
Reasons Supporting Proposal: The department's experience with investigating and enforcing the current rule has raised the need to clarify what acts constitute sexual misconduct by health care providers. The proposal will establish clearer standards of conduct for providers and will help the department be consistent in its enforcement activities to more fully comply with RCW 18.130.062 and Executive Order 06-03.
Statutory Authority for Adoption: RCW 18.130.050, 18.130.062, Executive Order 06-03.
Statute Being Implemented: RCW 18.130.050, 18.130.062, Executive Order 06-03.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state department of health, governmental.
Name of Agency Personnel Responsible for Drafting: Maura Craig, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-4997; Implementation: Martin Mueller, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-4600; and Enforcement: Marc Defreyn, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-4913.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Under RCW 19.85.025 and 34.05.310 (4)(d), a small business economic impact statement is not required for proposed rules that only clarify the language of a rule without changing its effect.
A cost-benefit analysis is not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328 (5)(b)(iv). Rule making that only clarifies language of a rule without changing its effect does not require a cost-benefit analysis.
July 8, 2015
John Wiesman, DrPH, MPH
Secretary
AMENDATORY SECTION (Amending WSR 06-18-045, filed 8/30/06, effective 9/30/06)
WAC 246-16-100 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 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) Sexual misconduct also includes sexual contact with any person involving force, intimidation, or lack of consent; or a conviction of a sex offense as defined in RCW 9.94A.030.
(3) 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))) (4) 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))) (5) After the two-year period of time described in subsection (((3))) (4) 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))) (6) 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))) (7) Patient, client or key party initiation or consent does not excuse or negate the health care provider's responsibility.
(((7))) (8) 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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