DEPARTMENT OF HEALTH

(Board of Optometry)

[Filed July 30, 2018, 4:24 p.m.]

Supplemental Notice to WSR 17-19-045.

Preproposal statement of inquiry was filed as WSR 17-07-047.

Title of Rule and Other Identifying Information: WAC 246-851-550 Sexual misconduct, the board of optometry (board) is proposing to amend the rule to clarify and update the sexual misconduct rule to establish what forcible or nonconsensual acts are within the definition of sexual misconduct by optometrists. The board's proposed rule adds acts of sexual misconduct which include 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. This supplemental notice adds the term "patient" which was inadvertently left out, and corrects a citation.

Hearing Location(s): On September 7, 2018, at 10:00 a.m., at the Department of Health (DOH), Kent Regional Office, Creekside Two at Center Point, 20425 72nd Avenue South, Room 306, Kent, WA 98032.

Date of Intended Adoption: September 7, 2018.

Submit Written Comments to: Loralei Walker, Program Manager, DOH, Board of Optometry, P.O. Box 47852, Olympia, WA 98504-7852, email https://fortress.wa.gov/doh/policyreview, fax 360-236-2901, by date August 31, 2018.

Assistance for Persons with Disabilities: Contact Loralei Walker, phone 360-236-4947, TTY 360-833-6388 or 711, email loralei.walker@doh.wa.gov, by August 31, 2018.

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 what forcible or nonconsensual acts are within the definition of sexual misconduct by optometrists. The board's proposed rule adds acts of sexual misconduct which include 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.

Under WAC 246-851-550(2), which lists acts of sexual misconduct, the terms "key party" and "patient" should have both been referenced. The term "patient" was accidentally omitted in several subsections. This supplemental adds the term "patient" to the rule language so that "patient" and "key party" are covered under the list of sexual misconduct acts.

WAC 246-851-550(5) referred to subsection (1), when it should have referred to subsection (2). This supplemental also corrects the reference so that subsection (5) refers to subsection (2), which lists acts of sexual misconduct.

Reasons Supporting Proposal: Experience with investigations and enforcement under the current rule has raised the need to clarify what acts constitute sexual misconduct by optometrists. The proposal will establish clearer standards of conduct for optometrists and will help them understand what acts constitute sexual misconduct.

Statutory Authority for Adoption: RCW 18.54.070(2), Executive Order 06-03, RCW 18.130.050.

Statute Being Implemented: RCW 18.130.062.

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

Name of Proponent: DOH, board of optometry, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Loralei Walker, Program Manager, 111 Israel Road S.E., Tumwater, WA 98501, 360-236-4947.

A school district fiscal impact statement is not required under RCW 28A.305.135.

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. RCW 34.05.328 (5)(b)(iv) exempts rules that only correct typographical errors, make address or name changes or clarify the language of a rule without changing its effect.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

Chair, Board of Optometry

AMENDATORY SECTION(Amending WSR 94-04-041, filed 1/27/94, effective 2/27/94)

WAC 246-851-550Sexual misconduct.

(1) ((An optometrist shall not engage in sexual contact or sexual activity with a current patient.

(a) A current patient is a patient)) The following definitions apply to this section:

(a) "Patient" means a person who has received professional services from the optometrist within the last three years and whose patient record has not been transferred to another optometrist or health care professional.

(((b))) A referral of the patient record must be in writing and with the knowledge of both the patient and the optometrist or health care practitioner to whom the record is transferred.

(b) "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 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.

(2) ((The)) An optometrist shall ((never engage in sexually harassing or demeaning behavior with current or former patients)) not engage, or attempt to engage, in sexual misconduct with a patient or key party, inside or outside the health care setting. Patient or 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;

(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 patient or key party;

(g) Suggesting the possibility of a sexual or romantic dating 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 body, sexual history, or sexual orientation of the patient or key party;

(k) Any verbal or physical contact which may reasonably be interpreted as sexually demeaning;

(l) Taking sexually explicit photographs or films of a patient or key party;

(m) Showing a patient or key party sexually explicit photographs.

(3) 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.

(4) An optometrist shall not:

(a) Offer to provide health care services in exchange for sexual favors;

(b) Use health care information to contact the patient 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 optometrist's sexual needs.

(5) An optometrist shall not engage, or attempt to engage, in the activities listed in subsection (2) of this section with a former patient or key party if:

(a) There is a significant likelihood that the patient 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.

(6) When evaluating whether an optometrist 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;

(d) Amount of time that has passed since the last health care services to the patient;

(e) Communication between the health care provider and the patient between the last health care services rendered and commencement of the personal relationship;

(f) Extent to which the patient's personal or private information was shared with the health care provider;

(g) Nature of the patient's health condition during and since the professional relationship;

(h) The patient's emotional dependence and vulnerability; and

(i) Normal revisit cycle for the profession and service.