Effective Date of Rule: Thirty-one days after filing.

     Purpose: The purpose for the sexual misconduct and abuse rules is to raise the awareness of sexual inappropriate behaviors and prevent physicians and physician assistants from engaging in abusive or sexual contact or sexual activity with current and former patients. The medical quality assurance commission (commission) has difficulty taking action on a practitioner's license who engages in sexually inappropriate behavior that does not constitute "sexual contact" under RCW 18.130.180(24). When the commission evaluates a case involving a sexual boundary issue in which the behavior does not constitute "sexual contact," the commission either takes action under RCW 18.130.180(1) on the theory the conduct constitutes "moral turpitude," or simply closes the case. These rules will allow the commission to better protect the public by taking disciplinary action in a wider range of inappropriate behaviors.

     Statutory Authority for Adoption: RCW 18.130.180, 18.71.017, and 18.71A.020.

      Adopted under notice filed as WSR 05-17-188 on August 24, 2005.

     A final cost-benefit analysis is available by contacting Beverly A. Thomas, P.O. Box 47866, Olympia, WA 98504, phone (360) 236-4788, fax (360) 236-4768, e-mail beverly.thomas@doh.wa.gov.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 4, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 4, Amended 0, Repealed 0.

     Date Adopted: November 18, 2005.

December 28, 2005

Maryella E. Jansen

for Blake T. Maresh

Executive Director

OTS-7922.3

NEW SECTION
WAC 246-919-630   Sexual misconduct.   (1) Definitions:

     (a) "Patient" means a person who is receiving health care or treatment, or has received health care or treatment without a termination of the physician-patient relationship. The determination of when a person is a patient is made on a case-by-case basis with consideration given to a number of factors, including the nature, extent and context of the professional relationship between the physician and the person. The fact that a person is not actively receiving treatment or professional services is not the sole determining factor.

     (b) "Physician" means a person licensed to practice medicine and surgery under chapter 18.71 RCW.

     (c) "Key third party" means a person in a close personal relationship with the patient and includes, but is not limited to, spouses, partners, parents, siblings, children, guardians and proxies.

     (2) A physician shall not engage in sexual misconduct with a current patient or a key third party. A physician engages in sexual misconduct when he or she engages in the following behaviors with a patient or key third party:

     (a) Sexual intercourse or genital to genital contact;

     (b) Oral to genital contact;

     (c) Genital to anal contact or oral to anal contact;

     (d) Kissing in a romantic or sexual manner;

     (e) Touching breasts, genitals or any sexualized body part for any purpose other than appropriate examination or treatment;

     (f) Examination or touching of genitals without using gloves;

     (g) Not allowing a patient the privacy to dress or undress;

     (h) Encouraging the patient to masturbate in the presence of the physician or masturbation by the physician while the patient is present;

     (i) Offering to provide practice-related services, such as medications, in exchange for sexual favors;

     (j) Soliciting a date;

     (k) Engaging in a conversation regarding the sexual history, preferences or fantasies of the physician.

     (3) A physician shall not engage in any of the conduct described in subsection (2) of this section with a former patient or key third party if the physician:

     (a) Uses or exploits the trust, knowledge, influence, or emotions derived from the professional relationship; or

     (b) Uses or exploits privileged information or access to privileged information to meet the physician's personal or sexual needs.

     (4) To determine whether a patient is a current patient or a former patient, the commission will analyze each case individually, and will consider a number of factors, including, but not limited to, the following:

     (a) Documentation of formal termination;

     (b) Transfer of the patient's care to another health care provider;

     (c) The length of time that has passed;

     (d) The length of time of the professional relationship;

     (e) The extent to which the patient has confided personal or private information to the physician;

     (f) The nature of the patient's health problem;

     (g) The degree of emotional dependence and vulnerability.

     (5) This section does not prohibit conduct that is required for medically recognized diagnostic or treatment purposes if the conduct meets the standard of care appropriate to the diagnostic or treatment situation.

     (6) It is not a defense that the patient, former patient, or key third party initiated or consented to the conduct, or that the conduct occurred outside the professional setting.

     (7) A violation of any provision of this rule shall constitute grounds for disciplinary action.

[]

     (a) Makes statements regarding the patient's body, appearance, sexual history, or sexual orientation that have no legitimate medical or therapeutic purpose;

     (b) Removes a patient's clothing or gown without consent;

     (c) Fails to treat an unconscious or deceased patient's body or property respectfully; or

     (d) Engages in any conduct, whether verbal or physical, which unreasonably demeans, humiliates, embarrasses, threatens, or harms a patient.

     (2) A violation of any provision of this rule shall constitute grounds for disciplinary action.

[]

OTS-7921.4

NEW SECTION
WAC 246-918-410   Sexual misconduct.   (1) Definitions:

     (a) "Patient" means a person who is receiving health care or treatment, or has received health care or treatment without a termination of the physician assistant-patient relationship. The determination of when a person is a patient is made on a case-by-case basis with consideration given to a number of factors, including the nature, extent and context of the professional relationship between the physician assistant and the person. The fact that a person is not actively receiving treatment or professional services is not the sole determining factor.

     (b) "Physician assistant" means a person licensed to practice as a physician assistant under chapter 18.71A RCW.

     (c) "Key third party" means a person in a close personal relationship with the patient and includes, but is not limited to, spouses, partners, parents, siblings, children, guardians and proxies.

     (2) A physician assistant shall not engage in sexual misconduct with a current patient or a key third party. A physician assistant engages in sexual misconduct when he or she engages in the following behaviors with a patient or key third party:

     (a) Sexual intercourse or genital to genital contact;

     (b) Oral to genital contact;

     (c) Genital to anal contact or oral to anal contact;

     (d) Kissing in a romantic or sexual manner;

     (e) Touching breasts, genitals or any sexualized body part for any purpose other than appropriate examination or treatment;

     (f) Examination or touching of genitals without using gloves;

     (g) Not allowing a patient the privacy to dress or undress;

     (h) Encouraging the patient to masturbate in the presence of the physician assistant or masturbation by the physician assistant while the patient is present;

     (i) Offering to provide practice-related services, such as medications, in exchange for sexual favors;

     (j) Soliciting a date;

     (k) Engaging in a conversation regarding the sexual history, preferences or fantasies of the physician assistant.

     (3) A physician assistant shall not engage in any of the conduct described in subsection (2) of this section with a former patient or key third party if the physician assistant:

     (a) Uses or exploits the trust, knowledge, influence, or emotions derived from the professional relationship; or

     (b) Uses or exploits privileged information or access to privileged information to meet the physician assistant's personal or sexual needs.

     (4) To determine whether a patient is a current patient or a former patient, the commission will analyze each case individually, and will consider a number of factors, including, but not limited to, the following:

     (a) Documentation of formal termination;

     (b) Transfer of the patient's care to another health care provider;

     (c) The length of time that has passed;

     (d) The length of time of the professional relationship;

     (e) The extent to which the patient has confided personal or private information to the physician assistant;

     (f) The nature of the patient's health problem;

     (g) The degree of emotional dependence and vulnerability.

     (5) This section does not prohibit conduct that is required for medically recognized diagnostic or treatment purposes if the conduct meets the standard of care appropriate to the diagnostic or treatment situation.

     (6) It is not a defense that the patient, former patient, or key third party initiated or consented to the conduct, or that the conduct occurred outside the professional setting.

     (7) A violation of any provision of this rule shall constitute grounds for disciplinary action.

[]

     (a) Makes statements regarding the patient's body, appearance, sexual history, or sexual orientation that have no legitimate medical or therapeutic purpose;

     (b) Removes a patient's clothing or gown without consent;

     (c) Fails to treat an unconscious or deceased patient's body or property respectfully; or

     (d) Engages in any conduct, whether verbal or physical, which unreasonably demeans, humiliates, embarrasses, threatens, or harms a patient.

     (2) A violation of any provision of this rule shall constitute grounds for disciplinary action.

[]