Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-11-092.

     Title of Rule and Other Identifying Information: New sections WAC 246-828-620 Definitions -- Sexual misconduct and 246-828-625 Sexual misconduct, board of hearing and speech.

     Hearing Location(s): Department of Health, Point Plaza East Building, Room 152/153, 310 Israel Road S.W., Tumwater, WA 98501, on December 1, 2006, at 9:15 a.m.

     Date of Intended Adoption: December 1, 2006.

     Submit Written Comments to: Leann Yount, P.O. Box 47869, Olympia, WA 98504-7869, web site http://www3.doh.wa.gov/policyreview/, fax (360) 236-4918, by November 17, 2006.

     Assistance for Persons with Disabilities: Contact Leann Yount by November 17, 2006, TTY (800) 833-6388 or 711.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This proposal responds to the governor issued Executive Order 06-03, that was issued on May 4, 2006, promoting public safety by defining sexual misconduct by health care providers regulated by boards, commissions, and the secretary.

     The board of hearing and speech (board) did not have any sexual misconduct rules in place when the executive order was issued. In order to comply with the executive order, the board promptly initiated sexual misconduct rule making. This proposal was drafted using the department of health, secretary profession model rules and then tailored to describe unprofessional conduct by those license holders under the board's jurisdiction.

     Reasons Supporting Proposal: Sexual misconduct is unprofessional conduct. This proposal will define specific acts and conduct that constitute unprofessional conduct. This proposal will help health care providers understand what behavior must be avoided and the consequences for engaging in the behavior. In addition, this proposal will help consumers understand what they should expect from their health care providers.

     Statutory Authority for Adoption: RCW 18.35.161 and 18.130.050.

     Statute Being Implemented: RCW 18.35.161 and 18.35.162.

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

     Name of Proponent: Department of health, board of hearing and speech, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Leann Yount, 310 Israel Road S.W., Tumwater, WA 98501, (360) 236-4856.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The board of hearing and speech has reviewed the proposal and has not conducted a small business economic impact statement because the proposal does not impose more than minor costs on businesses within the industry, as per RCW 19.85.030.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Leann Yount, P.O. Box 47869, Olympia, WA 98504-7869, phone (360) 236-4856, fax (360) 236-4918, e-mail leann.yount@doh.wa.gov.

October 16, 2006

Leann Yount

Program Manager

OTS-9191.2

NEW SECTION
WAC 246-828-620   Definitions -- Sexual misconduct.   The following definitions are applicable to the sexual misconduct rule, WAC 246-828-625:

     (1) "Health care information" means any information, whether oral or recorded in any form or medium that identifies or can readily be associated with the identity of, and relates to the health care of, a patient or client.

     (2) "Health care provider" means an individual applying for a credential or credentialed in a profession listed in chapter 18.35 RCW: Hearing instrument fitter/dispensers, audiologists, and speech-language pathologists.

     (3) "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 or client 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 or client.

     (4) "Legitimate health care purpose" means activities for examination, diagnosis, treatment, and personal care of patients or clients, including palliative care, as consistent with community standards of practice for the profession. The activity must be within the scope of practice of the health care provider.

     (5) "Patient" or "client" means an individual who receives health care from a health care provider.

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     (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 health care practitioner'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) Not allowing a patient or client privacy to dress or undress except as may be necessary in emergencies or custodial situations;

     (g) Not providing the patient or client a gown or draping except as may be necessary in emergencies;

     (h) Dressing or undressing in the presence of the patient, client or key party;

     (i) Removing patient or client's clothing or gown or draping without consent, emergent medical necessity or being in a custodial setting;

     (j) Encouraging masturbation or other sex act in the presence of the health care provider;

     (k) Masturbation or other sex act by the health care provider in the presence of the patient, client or key party;

     (l) Dating or beginning a sexual or romantic relationship before the professional relationship ends;

     (m) Discussing the sexual history, preferences or fantasies of the health care provider;

     (n) Any behavior, gestures, or expressions that may reasonably be interpreted as seductive or sexual;

     (o) Making statements regarding the patient, client or key party's body, appearance, sexual history, or sexual orientation other than for legitimate health care purposes;

     (p) 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;

     (q) 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

     (r) Showing a patient, client or key party sexually explicit photographs, other than for legitimate health care purposes.

     (2) A health care provider 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;

     (c) Use health care information or access to health care information to meet or attempt to meet the health care provider's sexual needs.

     (3) After a health care provider has terminated providing services to the client or patient, a health care provider shall not engage, or attempt to engage, in dating or beginning a sexual or romantic relationship with a former client or patient or key party of a former client or patient if:

     (a) There is a significant likelihood that the former patient, client 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 held or acquired by the health care provider related to the professional relationship.

     (4) When evaluating whether a health care provider is prohibited from engaging, or attempting to engage, in sexual misconduct, the board of hearing and speech 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 health care provider 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 the client's personal or private information was shared with the health care provider;

     (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;

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

     (j) Patient, client or key party initiation or consent does not excuse or negate the health care provider's responsibility.

     (5) 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 that profession; 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 health care provider where there is no evidence of, or potential for, exploiting the patient or client.

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