WSR 97-20-161

PROPOSED RULES

DEPARTMENT OF HEALTH

[Filed October 1, 1997, 11:50 a.m.]

Original Notice.

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

Title of Rule: Sexual misconduct, WAC 246-840-985.

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.

Other Identifying Information: This rule will amend WAC 246-840-010 Definitions, to add two definitions and change one to go along with the new WAC 246-840-985.

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: Angela Ringel, 1300 S.E. Quince Street, Olympia, WA 98504, (360) 664-4219.

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 Changes the Following Existing Rules: It will amend WAC 246-840-010 Definitions, to add two new definitions and change an existing one to go along with the new WAC 246-840-985.

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

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. The majority of other regulated health care professions have had sexual misconduct guidelines in rule for several years.

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 20 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 20 complaints were reviewed and/or investigated to determine if there were other violations that could or should be prosecuted. Without a sexual misconduct rule, these 20 complaints would need to be closed if no other violations were evident. 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 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 20 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 General $ 4,000

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: Angela Ringel, P.O. Box 47864, Olympia, WA 98504-7864, phone (360) 664-4219, or FAX (360) 586-2165.

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: La Quinta Motor Inn, 1425 East 27th Street, Tacoma, WA 98421, on December 12, 1997, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Angela Ringel by December 5, 1997, TDD (360) 664-0064, or FAX (360) 586-2165.

Submit Written Comments to: Angela Ringel, Department of Health, P.O. Box 47864, Olympia, WA 98504-7864, FAX (360) 586-2165, by December 5, 1997.

Date of Intended Adoption: December 12, 1997.

August 27, 1997

Patty Hayes

Executive Director

NEW SECTION

WAC 246-840-985 Sexual misconduct. The protection of the public is the primary goal in cases of sexual misconduct by nurses. Sexual misconduct is a serious form of professional misconduct as it undermines the nurse/client relationship and public confidence in nursing services, and interferes with safe practices in the nursing profession. "Sexual misconduct" can mean the use of power, influence, and/or knowledge inherent in the nurse's profession to obtain sexual gratification, romantic partners, and/or sexually deviant outlets.

(1) Nurses shall never engage, or attempt to engage in sexual contact, sexual activity, or romantic relationships with clients currently under their care or former clients who are reasonably anticipated to be under their care. Any behavior directed to a client by a nurse that is sexual or romantic in nature shall be viewed as sexual misconduct.

(a) Romantic relationships do not necessarily involve sexual relations or intercourse.

(b) A nurse shall not use his or her position to solicit a sexual or romantic relationship.

(2) It is the nurse's responsibility to:

(a) Avoid boundary violations of the nurse/client relationship by not engaging in any type of sexual behavior with clients, including any suggestion of romantic interest or interest in sexualizing the nurse/client relationship; and

(b) Understand that there are serious detrimental consequences to themselves, their clients, and the nursing profession when the professional boundary is violated.

(3) If it is reasonably anticipated that the client will not require future care from the nurse, the nurse may engage in a sexual or romantic relationship with a former client only if the relationship does not involve the abuse of the nurse/client relationship. Factors which the commission may consider in evaluating whether the nurse/client relationship has been abused include, but are not limited to:

(a) The amount of time that has passed since the nurse/client relationship terminated;

(b) The nature and duration of the nurse/client relationship;

(c) The circumstances of the cessation or termination of the nurse/client relationship;

(d) The former client's personal history;

(e) The former client's current or past mental status;

(f) The likelihood of an adverse impact on the former client and others; and

(g) Any statements or actions made by the nurse during the course of treatment suggesting or inviting the possibility of a sexual or romantic relationship with the former client.

(4) Nurses engaging in behavioral nursing shall not have a relationship with a former client for at least two years after nursing care is terminated and only if the client will not require future care from the nurse. Due to the sensitive and personal nature of behavioral nursing, and due to the vulnerable condition of many behaviorally disturbed clients, the relationship may still be considered misconduct after two years if abuse of the nurse/client relationship is evident. Factors which the commission may consider in evaluating if the nurse/client relationship has been abused include, but are not limited to:

(a) The amount of time that has passed since the nurse/client relationship terminated;

(b) The nature and duration of the nurse/client relationship;

(c) The circumstances of the cessation or termination of the nurse/client relationship;

(d) The former client's personal history;

(e) The former client's current or past mental status;

(f) The likelihood of an adverse impact on the former client and others; and

(g) Any statements or actions made by the nurse during the course of treatment suggesting or inviting the possibility of a post termination sexual or romantic relationship with the former client.

(5) Nurses shall not solicit or engage in sexual or romantic behaviors with a client's immediate family members who may be vulnerable to being induced into such a relationship due to the condition or treatment of the client or the overall circumstances of the care given.

(6) Consent, initiation of or participation by the client, former client, or family member to engage in a sexual or romantic relationship or behaviors shall not be a defense against an allegation of sexual misconduct by the nurse.

(7) Nurses shall not engage in sexually harassing or demeaning behavior with current or former clients or members of the client's family.

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AMENDATORY SECTION (Amending WSR 97-13-100, filed 6/18/97, effective 7/19/97)

WAC 246-840-010 Definitions. (1) "Acquired immunodeficiency syndrome" or "AIDS" means the clinical syndrome of HIV-related illnesses as defined by the commission of health by rule.

(2) "Auxiliary services" are all nursing services provided to patients by persons other than the licensed practical nurse, the registered nurse and the nursing student.

(3) "Beginning practitioner" means a newly licensed nurse beginning to function in the nurse role.

(4) "Behavioral objectives" means the measurable outcomes of specific content.

(5) "Boundary" means the limits of the professional nurse/client relationship that allows for a safe therapeutic association between the nurse and the client. Boundaries protect the space between the nurse's power as a caregiver and the client's vulnerability.

(6) "Boundary violation" means a situation where the nurse inserts his or her personal, romantic, or sexual needs into the nurse/client relationship.

(7) "Client" means ((the)) a person who receives the services of ((the practical)) a nurse ((or registered nurse)) who is performing direct or indirect nursing duties. A nurse does not need to be "assigned" to the client in order for the nurse/client relationship to exist.

(((6))) (8) "Client advocate" means a supporter of client rights and choices.

(((7))) (9) "Commission" means the Washington state nursing care quality assurance commission.

(((8))) (10) "Competencies" means the tasks necessary to perform the standards.

(((9))) (11) "Conceptual framework" means the theoretical base around which the curriculum is developed.

(((10))) (12) "Conditional approval" of a school of nursing is the approval given a school of nursing that has failed to meet the requirements of the law and the rules and regulations of the commission, and it specifies conditions that must be met within a designated time to rectify the failure.

(((11))) (13) "Delegation" means the licensed practical nurse or registered nurse transfers the performance of selected nursing tasks to competent individuals in selected situations. The licensed practical nurse or registered nurse delegating the task retains the responsibility and accountability for the nursing care of the client. The licensed practical nurse or registered nurse delegating the task supervises the performance of the unlicensed person;

(a) Nursing acts delegated by the licensed practical nurse or registered nurse shall:

(i) Be within the area of responsibility of the licensed practical nurse or registered nurse delegating the act;

(ii) Be such that, in the opinion of the licensed practical nurse or registered nurse, it can be properly and safely performed by the person without jeopardizing the patient welfare;

(iii) Be acts that a reasonable and prudent licensed practical nurse or registered nurse would find are within the scope of sound nursing judgment.

(b) Nursing acts delegated by the licensed practical nurse or registered nurse shall not require the unlicensed person to exercise nursing judgment nor perform acts which must only be performed by a licensed practical nurse or registered nurse, except in an emergency situation (RCW 18.79.240 (1)(b) and (2)(b)).

(c) When delegating a nursing act to an unlicensed person it is the registered nurse who shall:

(i) Make an assessment of the patient's nursing care need before delegating the task;

(ii) Instruct the unlicensed person in the delegated task or verify competency to perform or be assured that the person is competent to perform the nursing task as a result of the systems in place by the health care agency;

(iii) Recognize that some nursing interventions require nursing knowledge, judgment, and skill and therefore may not lawfully be delegated to unlicensed persons.

(((12))) (14) Direction and Supervision:

(a) "Supervision" of licensed or unlicensed nursing personnel means the provision of guidance and evaluation for the accomplishment of a nursing task or activity with the initial direction of the task or activity; periodic inspection of the actual act of accomplishing the task or activity; and the authority to require corrective action.

(b) "Consulting capacity" shall mean the recommendations to a professional entity, employed at that facility, which may be accepted, rejected, or modified. These recommendations shall not be held out as providing nursing services by the consulting nurse to the patient or public.

(c) "Direct supervision" shall mean the licensed registered nurse is on the premises, is quickly and easily available and the patient has been assessed by the licensed registered nurse prior to the delegation of the duties to any caregiver.

(d) "Immediate supervision" shall mean the registered nurse is on the premises and is within audible and visual range of the patient and the patient has been assessed by the registered nurse prior to the delegation of duties to any caregiver.

(e) "Indirect supervision" shall mean the registered nurse is not on the premises but has given either written or oral instructions for the care and treatment of the patient and the patient has been assessed by the registered nurse prior to the delegation of duties to any caregiver.

(((13))) (15) "Extended learning sites" refers to any area external to the parent organization selected by faculty for student learning experiences.

(((14))) (16) "Faculty" means persons who are responsible for the educational program of the school of nursing and who hold faculty appointment in the school.

(((15))) (17) "Full approval" of a school of nursing is the approval given a school of nursing that meets the requirements of the law and the rules and regulations of the commission.

(((16))) (18) "Minor nursing services." The techniques and procedures used by the nursing profession are extremely difficult to categorize as major or minor nursing services. The important factor with which this law is concerned is the determination of which nursing person and at what level of preparation that person may perform said technique or procedure in relation to the condition of a given patient, and this kind of determination rests with the registered nurse.

(((17))) (19) "Minimum standards of competency" means the functions that are expected of the beginning level nurse.

(((18))) (20) "Nurse administrator" is an individual who meets the qualifications contained in WAC 246-840-555 and who has been designated as the person primarily responsible for the direction of the program in nursing. Titles for this position may include, among others, dean, director, coordinator or chairperson.

(((19))) (21) The phrase "nursing aide" used in RCW 18.79.240 (1)(c) shall mean a "nursing technician." "Nursing technician" is a nursing student currently enrolled in a commission or state board of nursing approved nursing education program and employed for the purpose of giving help, assistance and support in the performance of those services which constitute the practice of registered nursing. The nursing student shall use the title "nursing technician" while employed.

(((20))) (22) "Nursing student" is a person currently enrolled in an approved school of nursing.

(((21))) (23) "Office on AIDS" means that section within the department of social and health services or any successor department with jurisdiction over public health matters as defined in chapter 70.24 RCW.

(((22))) (24) "Philosophy" means the beliefs and principles upon which the curriculum is based.

(((23))) (25) "Program" means a division or department within a state supported educational institution, or other institution of higher learning charged with the responsibility of preparing persons to qualify for the licensing examination.

(((24))) (26) "Provisional approval" of schools of nursing is the approval given a new school of nursing based on its proposed program prior to the admission of its first class.

(((25))) (27) "Registered nurse" as used in these rules shall mean a nurse as defined by RCW 18.79.030(1).

(((26))) (28) "School" means an educational unit charged with the responsibility of preparing persons to practice as practical nurses or registered nurses. Three types of basic schools of nursing are distinguished by the certificate awarded to the graduate. Schools of nursing within colleges and universities award the associate degree or baccalaureate degree. Schools of nursing sponsored by a hospital award a diploma.

(((27))) (29) "Standards" means the overall behavior which is the desired outcome.

(((28))) (30) "Terminal objectives" means the statements of goals which reflect the philosophy and are the measurable outcomes of the total curriculum.

(((29))) (31) An "unapproved school of nursing" is a school of nursing that has been removed from the list of approved schools for failure to meet the requirements of the law and the rules and regulations of the commission or a school that has never been approved by the commission.