WSR 16-04-075 PROPOSED RULES DEPARTMENT OF HEALTH (Board of Naturopathy) [Filed January 29, 2016, 11:40 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-03-064.
Title of Rule and Other Identifying Information: WAC 246-836-510 Sexual misconduct, the board of naturopathy (board) is proposing amendments to clarify what forcible or nonconsensual acts are within the definition of sexual misconduct as it relates to naturopathic physicians.
Hearing Location(s): Department of Health, Town Center 2 (TC2), Room 145, 111 Israel Road S.E., Tumwater, WA 98501, on April 1, 2016, at 1:00 p.m.
Date of Intended Adoption: April 1, 2016.
Submit Written Comments to: Susan Gragg, Program Manager, Department of Health, P.O. Box 47852, Olympia, WA 98504-7852, e-mail http://www3.doh.wa.gov/policyreview/, fax (360) 236-2901, by March 30, 2016.
Assistance for Persons with Disabilities: Contact Susan Gragg by March 25, 2016, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rule clarifies what acts of sexual misconduct that are forcible or nonconsensual and do not involve a patient, client, or key party are within the definition of sexual misconduct. The proposed rule updates and establishes clearer standards of conduct for naturopathic physicians.
Reasons Supporting Proposal: The board's experience with investigations and enforcing the current rule has raised the need to clarify what acts constitute sexual misconduct. The proposal will establish clearer standards of conduct for naturopathic physicians and will help the board be consistent in its enforcement of sexual misconduct rules to more fully comply with RCW 18.130.062 and Executive Order 06-03.
Statute Being Implemented: RCW 18.130.062.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Board of naturopathy, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Susan Gragg, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-4941.
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 the language of a rule without changing its effect does not require a cost-benefit analysis.
January 28, 2016
Blake T. Maresh
Executive Director
AMENDATORY SECTION (Amending WSR 12-13-104, filed 6/20/12, effective 7/21/12)
WAC 246-836-510 Sexual misconduct.
(1) A naturopathic physician 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 naturopathic physician'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 naturopathic physician;
(l) Masturbation or other sex act by the naturopathic physician 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 naturopathic physician;
(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 naturopathic physician 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; or
(c) Use health care information or access to health care information to meet or attempt to meet the naturopathic physician's sexual needs.
(((3))) (4) A naturopathic physician shall not engage, or attempt to engage, in 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) of this section, a naturopathic physician 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 naturopathic physician; or
(b) There is an imbalance of power, influence, opportunity, and/or special knowledge of the professional relationship.
(((5))) (6) When evaluating whether a naturopathic physician is prohibited from engaging, or attempting 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;
(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 naturopathic physician 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 naturopathic physician;
(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 naturopathic physician'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 naturopathic medicine; 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 naturopathic physician where there is no evidence of, or potential for, exploiting the patient or client.
|