Original Notice.

     Preproposal statement of inquiry was filed as WSR 06-13-013.

     Title of Rule and Other Identifying Information: Establishes new WAC 246-817-450 Definitions and 246-817-460 Sexual misconduct rules for dentists. The proposed rules establish clear and consistent definitions of sexual misconduct by dentists regulated under chapter 18.32 RCW.

     Hearing Location(s): Department of Health, Point Plaza East Building, Room 152, 310 Israel Road S.E., Tumwater, WA 98501, on December 7, 2006, at 6:30 p.m.

     Date of Intended Adoption: December 7, 2006.

     Submit Written Comments to: Lisa Anderson, Program Manager, Department of Health, Dental Quality Assurance Commission, P.O. Box 47867, Olympia, WA 98504-7867, web site http://www3.doh.wa.gov/policyreview/, fax (360) 664-9077, by November 20, 2006.

     Assistance for Persons with Disabilities: Contact Lisa Anderson, Program Manager, by November 15, 2006, TTY (800) 833-6388 or 711.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules will establish clear definitions for sexual misconduct by dentists. In its efforts to ensure public safety, the commission is proposing rules to help dentists avoid sexual misconduct and to educate consumers about what they should expect from health care providers.

     Reasons Supporting Proposal: The governor issued Executive Order 06-03, Investigation of Health Professional Sexual Misconduct, which requires a comprehensive definition of sexual misconduct. Currently, dentistry does not have definitions or rules for sexual misconduct. The proposed rules will establish a clear and consistent definition of sexual misconduct for the dental profession and establish expectations for conduct by dentists. The governor has requested that rules be adopted by December 31, 2006.

     Statutory Authority for Adoption: RCW 18.32.0365, 18.130.050 (1) and (12).

     Statute Being Implemented: RCW 18.130.180.

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

     Name of Proponent: Department of health, dental quality assurance commission, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Lisa Anderson, Department of Health, P.O. Box 47867, Olympia, WA 98504-7867, (360) 236-4863.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department of health has reviewed the proposal and determined that no small business economic impact statement is required because the proposed rules do not impose more than minor costs to any businesses within the industry.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Lisa Anderson, Department of Health Dental Program, P.O. Box 47867, Olympia, WA 98504-7867, phone (360) 236-4863, fax (360) 664-9077, e-mail Lisa.Anderson@doh.wa.gov.

October 16, 2006

Lisa Anderson

Program Manager

Dental Quality Assurance Commission

OTS-9114.1

SEXUAL MISCONDUCT RULES FOR DENTISTS
NEW SECTION
WAC 246-817-450   Definitions.   (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 specifically as a dentist as defined in chapter 18.32 RCW.

     (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 dentist.

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

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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 dentist'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 dentist;

     (l) Masturbation or other sex act by the dentist 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 dentist;

     (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) A dentist 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 dentist's sexual needs.

     (3) A dentist shall not engage, or attempt to engage, in the activities listed in subsection (1) of this section with a former patient, client or key party within two years after the dentist-patient/client relationship ends.

     (4) After the two-year period of time described in subsection (3) of this section, a dentist 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 dentist; or

     (b) There is an imbalance of power, influence, opportunity and/or special knowledge of the professional relationship.

     (5) When evaluating whether a dentist is prohibited from engaging, or attempting to engage, in sexual misconduct, the commission will consider factors, including but not limited to:

     (a) Documentation of a formal termination and the circumstances of termination of the dentist-patient relationship;

     (b) Transfer of care to another health care provider;

     (c) Duration of the dentist-patient relationship;

     (d) Amount of time that has passed since the last health care services to the patient or client;

     (e) Communication between the dentist 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 dentist;

     (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) Patient, client or key party initiation or consent does not excuse or negate the dentist's responsibility.

     (7) 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 dentist where there is no evidence of, or potential for, exploiting the patient or client.

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