WSR 98-21-088

PROPOSED RULES

DEPARTMENT OF HEALTH

[Filed October 21, 1998, 11:48 a.m.]

Original Notice.

Supplemental Notice to WSR 97-20-161.

Preproposal statement of inquiry was filed as WSR 97-15-002.

Title of Rule: Sexual misconduct prohibited, WAC 246-840-740.

Purpose: This would create a new WAC to assist the nurses and the public in understanding the concept and actions which can be taken in disciplinary cases coming before the commission and to ensure that the commission's disciplinary actions are enforceable and therefore more fully protect the public.

Statutory Authority for Adoption: RCW 18.130.180(24).

Statute Being Implemented: Chapter 18.79 RCW.

Summary: This rule would make it easier for nurses and the public to understand that there are professional boundaries and standards of practice which need to be adhered to.

Reasons Supporting Proposal: Protection of the public is the commission's primary goal when the profession of nursing is practiced. This WAC would allow the commission to successfully prosecute sexual misconduct cases reported to the commission. It would also educate the care givers and the public that sexual misconduct is not an acceptable standard of practice.

Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Terry J. West, 1300 S.E. Quince Street, Olympia, WA 98504, (360) 664-4207 or 236-4712 after October 19, 1998.

Name of Proponent: Washington State Department of Health, Nursing Care Quality Assurance Commission, governmental.

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

Explanation of Rule, its Purpose, and Anticipated Effects: Since 1993 the commission has had sexual misconduct guidelines in place. This served as a method of articulating the Nursing Commission's standards for the nursing profession when complaints involving sexual relations with patients and/or former patients were received. While the guidelines were helpful, moving them into rule would provide enforceability of commission actions. The rule would be available to all applicants, licensees, facilities and the public via the law book and would set the standard for nursing which would be beneficial to everyone.

Having this rule in place would protect the public because it provides notice to all. It will put facilities, nurses and schools on notice, it will make the patients aware of their rights. Commission action would be enforceable. The action could remove a licensee from the practice of nursing, order therapy, remedial education, or limit the setting a nurse could practice in, or other action deemed appropriate to provide protection to the public.

Proposal does not change existing rules.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

and

Economic Impact Analysis

Introduction: RCW 18.79.110 Commission--Duties and powers--Rules--Successor to boards, this statute states in part ... "The commission shall adopt such rules under chapter 34.05 RCW as are necessary to fulfill the purposes of this chapter." In 1996 the Nursing Commission identified the need to convert the sexual misconduct guideline into a rule that is enforceable, is available to all applicants and licensees and is clear that it is the standard for all nursing professions.

The sexual misconduct guideline has been in place since 1994. This served as a method of articulating the Nursing Commission's standards for the nursing profession related to sexual relations with patients and former patients. While the guidelines were helpful, they were not enforceable should a practitioner choose to have sexual relations with a patient or former patient. The Nursing Commission decided that this guideline should be placed into a rule.

Necessity of Sexual Misconduct Guideline Rule: In 1997 there were 623 complaints received against nurses. (365 for registered nurses, 15 for advanced registered nurses and 243 for licensed practical nurses). Of those 623 complaints, approximately twenty complaints were received that were sexual in nature. With only guidelines in place, regardless of the evidence, the Nursing Care Quality Assurance Commission was unable to take any action regarding these complaints because it is not possible to prosecute a violation of a guideline.

These twenty complaints were reviewed and/or investigated to determine if there were other violations that could or should be prosecuted. The majority of sexual complaints are not regarding sexual intercourse with a current patient which could be currently prosecuted under RCW 18.130.180. Most of those 20 complaints would need to be closed if no other violations were evident because they are mostly relating to boundary violations, sexual contact such as touching that does not involve a current patient. This creates a potential harm for the public, the facility and the licensee. The public is not served when a violation is known and the disciplinary authority can take no action. The facility is not served by having employees who are committing sexual misconduct or boundary violations against patients. The licensee is not served because the existing sexual misconduct guideline was distributed in 1994 but has not been redistributed since then. Many licensees and applicants are not aware that guidelines exist today.

If the sexual misconduct guidelines were placed in rule, all licensees would receive a copy of the rule via the law book. All students, future applicants, school administrators and facilities would be placed on notice regarding the rule via the law book which is distributed to all interested persons. The rule would be readily accessible to interested persons through the Code Reviser's Office and the World Wide Web.

Magnitude of New Sexual Misconduct Guidelines Adopted by Rule: If the sexual misconduct guideline were adopted into rule this would impact the licensee and the facility because it would become an enforceable violation. Should a licensee or applicant violate the sexual misconduct guideline after adoption, the licensee or applicant may be subject to the following sanctions:

Additional course work

Fines

Suspension

Revocation

Monitoring

The impact to the Department of Health would result in the increased cost to prosecute sexual misconduct complaints. There would be no increased cost for review, analysis and investigation of these complaints as this is already occurring. There would however be an increase in the amount of staff attorney and assistant attorney general time spent to prosecute complaints. It is estimated that of the twenty complaints per year, at least one of those cases would involve prosecution. It is also estimated that this one case could be settled without the need for a formal hearing, but would require a little more investigation than the average case. Following is the estimated costs:

Staff Attorney $2,000

Investigator $2,000

Assistant Attorney $4,000

General

Travel $500

Total $8,500

Impact to Licensees: There would not be a fiscal impact to licensees through their renewal fees because this anticipated increase will be covered under the regular fees. However, there is a potential for impact to the licensee because of the perceived need for an attorney to represent the licensee or applicant should sexual misconduct charges be levied. This cannot be quantified because not all licensees or applicants choose to have an attorney represent them. The cost would further vary depending on whether other charges were present in addition to sexual misconduct. Another variance would be whether or not the settlement negotiations were short or protracted.

The licensee or applicant would be positively impacted by knowing up-front that sexual relations in any manner with a current or former patient would be a violation of law. The licensee or applicant could choose their behavior accordingly. The licensee or applicant who have no knowledge of how sexual relations with a patient or former patient may negatively impact them, could choose to seek knowledge in this area and avoid any legal repercussion.

Summary: Having sexual misconduct guidelines in place by rule would be of benefit to the public, licensees, applicants and facilities. This rule would be published and available to all interested persons. All applicable parties would be put on notice of the standards expected of nurses dealing with sexual issues related to current and former patients. Adoption of this rule will allow the Nursing Care Quality Assurance Commission to take necessary action should any licensee or applicant in the future violate these standards.

Small Business Economic Impact Statement: In preparing this small business economic impact statement (SBEIS), the department used SIC Code 809 Miscellaneous Health & Allied Services, Not Elsewhere Classified which has a minor impact threshold of $53.00. The estimated cost to health care practitioners for implementing a sexual misconduct rule is zero.

Therefore, there is no disproportionate cost for small businesses.

A copy of the statement may be obtained by writing to Department of Health, Nursing Care Quality Assurance Commission, Attn: Terry J. West, 47864, Olympia, WA 98504-7867, phone (360) 664-4207 or (360) 236-4712 after October 19, 1998, fax (360) 586-2165 or (360) 236-4738 after October 19, 1998.

Section 201, chapter 403, Laws of 1995, applies to this rule adoption. These rules are significant under section 201, chapter 403, Laws of 1995, because they adopt substantive provisions which subject the violator to penalty or sanction and establish, alter or revoke qualification or standard for the issuance, suspension or revocation of a license or permit.

Hearing Location: Department of Health, 1101 Eastside Street, Olympia, WA 98504, on January 8, 1999, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Terry J. West by January 4, 1999, TDD (360) 664-0064, or fax (360) 586-2165 or 236-4738.

Submit Written Comments to: Terry J. West, Department of Health, P.O. Box 47864, Olympia, WA 98504-7864, fax (360) 586-2165 or 236-4738, by January 4, 1999.

Date of Intended Adoption: January 8, 1999.

September 15, 1998

Paula R. Meyer

Executive Director

OTS-2413.1

NEW SECTION

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 does not need to be "assigned" to the client in order for the nurse/client relationship to exist. The role of the nurse in the nurse/client relationship places the nurse in the more powerful position and the nurse 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 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 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 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 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 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

(4) What about former clients?

A nurse 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 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 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 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 where no evidence of abuse of the nurse/client relationship exists.

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