WSR 14-15-145 PROPOSED RULES DEPARTMENT OF HEALTH (Nursing Care Quality Assurance Commission) [Filed July 23, 2014, 9:22 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 12-17-017.
Title of Rule and Other Identifying Information: WAC 246-840-740 Sexual misconduct, proposing amendments to sexual misconduct standards for practitioners licensed by the nursing care quality assurance commission.
Hearing Location(s): Red Lion Hotel Pasco, 2525 North 20th Avenue, Pasco, WA 99301, on September 12, 2014, at 1:30 p.m.
Date of Intended Adoption: September 12, 2014.
Submit Written Comments to: Mary Dale, Nursing Care Quality Assurance Commission, P.O. Box 47864, Olympia, WA 98504-7864, e-mail http://www3.doh.wa.gov/policyreview/, fax (360) 236-4738, by September 5, 2014.
Assistance for Persons with Disabilities: Contact Mike Hively by August 29, 2014, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The sexual misconduct rule adopted in 1999 is being updated to strengthen the terms and definitions, to add clarity to existing rules, and to add additional requirements. These amendments will help nurses, nursing technicians, and patients understand what constitutes sexual misconduct or boundary violations. By clarifying the boundaries of prohibited conduct, these amendments will assist in appropriate disciplinary action relating to sexual misconduct or boundary violations.
Reasons Supporting Proposal: The nursing care quality assurance commission has noted deficiencies in the original sexual misconduct rules adopted in 1999. Enforcement of the rules has proven challenging and potentially subject to inconsistent interpretations, which has contributed to confusion among licensees and the public. Updating the sexual misconduct rules will establish clear standards of conduct, thereby aiding in consistent enforcement and transparent expectations of professional behavior.
Statutory Authority for Adoption: RCW 18.79.110 and 18.130.050.
Statute Being Implemented: RCW 18.79.110, 18.130.050, and 18.130.180.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Nursing care quality assurance commission, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Mary Dale, 111 Israel Road S.E., Tumwater, WA, (360) 236-4744.
No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule would not impose more than minor costs on businesses in an industry.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Anne Schuchmann, P.O. Box 47864, Olympia, WA 98504-7864, phone (360) 236-4712, fax (360) 236-4738, e-mail anne.schuchmann@doh.wa.gov.
July 23, 2014
Paula R. Meyer, MSN, RN
Executive Director
Nursing Care Quality
Assurance Commission
AMENDATORY SECTION (Amending WSR 07-19-131, filed 9/19/07, effective 10/20/07)
WAC 246-840-740 Sexual misconduct prohibited.
(((1) What is the nursing commission's intent in prohibiting this type of misconduct?
Sexual or romantic conduct with a client or the client's family is serious misconduct because it harms the nurse/client relationship and interferes with the safe and effective delivery of nursing services. A nurse or nursing technician does not need to be "assigned" to the client in order for the nurse/client relationship to exist. The role of the nurse or nursing technician in the nurse/client relationship places the nurse or nursing technician in the more powerful position and the nurse or nursing technician must not abuse this power. Under certain circumstances, the nurse/client relationship continues beyond the termination of nursing services. Not only does sexual or romantic misconduct violate the trust and confidence held by health care clients towards nursing staff, but it also undermines public confidence in nursing. Nurses and nursing technicians can take measures to avoid allegations of such misconduct by establishing and maintaining professional boundaries in dealing with their clients.
(2) What conduct is prohibited?
Nurses and nursing technicians shall never engage, or attempt to engage, in sexual or romantic conduct with clients, or a client's immediate family members or significant others. Such conduct does not have to involve sexual contact. It includes behaviors or expressions of a sexual or intimately romantic nature. Sexual or romantic conduct is prohibited whether or not the client, family member or significant other initiates or consents to the conduct. Such conduct is also prohibited between a nursing educator and student.
Regardless of the existence of a nurse/client relationship, nurses and nursing technicians shall never use patient information derived through their role as a health care provider to attempt to contact a patient in pursuit of a nurse's own sexual or romantic interests or for any other purpose other than legitimate health care.
(3) What should a nurse or nursing technician do to avoid allegations of sexual or romantic misconduct?
Establishing and maintaining professional boundaries is critical to avoiding even the appearance of sexual or romantic misconduct. Nurses and nursing technicians can take certain preventative steps to make sure safeguards are in place at all times, such as:
(a) Setting appropriate boundaries with patients, physically and verbally, at the outset of professional relationships, and documenting such actions and the basis for such actions;
(b) Consulting with supervisors regarding difficulties in establishing and maintaining professional boundaries with a given client; and/or
(c) Seeking reassignment to avoid incurring a violation of these rules.
(4) What about former clients?
A nurse or nursing technician shall not engage or attempt to engage a former client, or former client's immediate family member or significant other, in sexual or romantic conduct if such conduct would constitute abuse of the nurse/client relationship. The nurse/client relationship is abused when a nurse or nursing technician uses and/or benefits from the nurse's professional status and the vulnerability of the client due to the client's condition or status as a patient.
(a) Due to the unique vulnerability of mental health and chemical dependency clients, nurses and nursing technicians are prohibited from engaging in or attempting to engage in sexual or romantic conduct with such former clients, or their immediate family or significant other, for a period of at least two years after termination of nursing services. After two years, sexual or romantic conduct may be permitted with a former mental health or chemical dependency client, but only if the conduct would not constitute abuse of the nurse/client relationship.
(b) Factors which the commission may consider in determining whether there was abuse of the nurse/client relationship include, but are not limited to:
(i) The amount of time that has passed since nursing services were terminated;
(ii) The nature and duration of the nurse/client relationship, the extent to which there exists an ongoing nurse/client relationship following the termination of services, and whether the client is reasonably anticipated to become a client of the nurse in the future;
(iii) The circumstances of the cessation or termination of the nurse/client relationship;
(iv) The former client's personal history;
(v) The former client's current or past mental status, and whether the client has been the recipient of mental health services;
(vi) The likelihood of an adverse impact on the former client and others;
(vii) Any statements or actions made by the nurse during the course of treatment suggesting or inviting the possibility of sexual or romantic conduct;
(viii) Where the conduct is with a client's immediate family member or significant other, whether such a person is vulnerable to being induced into such relationship due to the condition or treatment of the client or the overall circumstances.
(5) Are there situations where these rules do not apply?
These rules do not prohibit:
(a) The provision of nursing services on an urgent, unforeseen basis where circumstances will not allow a nurse or nursing technician to obtain reassignment or make an appropriate referral;
(b) The provision of nursing services to a spouse, or family member, or any other person who is in a preexisting, established relationship with the nurse or nursing technician where no evidence of abuse of the nurse/client relationship exists.)) (1) Sexual misconduct. A nurse or nursing technician 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 standards of practice for examination, diagnosis, and treatment and within the nurse or nursing technician's scope of practice;
(c) Rubbing against a patient or client or key party for other than a legitimate health care purpose;
(d) Kissing, hugging, touching, fondling, or caressing of a romantic or sexual nature;
(e) Examination of or touching genitals without using gloves;
(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 nurse or nursing technician;
(k) Masturbation or other sex act by the nurse or nursing technician in the presence of the patient, client, or key party;
(l) Suggesting or initiating a discussion of the possibility of a dating, sexual, or romantic relationship after the professional relationship ends;
(m) Terminating a professional relationship for the purpose of dating or pursuing a romantic or sexual relationship;
(n) Soliciting, accepting, or going on a date with an individual the nurse or nursing technician knows, or reasonably should know, to be a patient, client, or key party;
(o) Discussing the sexual history, acts, or fantasies of the nurse or nursing technician;
(p) Any behavior, gestures, or expressions that may reasonably be interpreted as seductive or sexual;
(q) Making statements regarding the patient, client, or key party's body, appearance, sexual history, or sexual orientation for other than legitimate health care purposes;
(r) Any behavior including any verbal or physical contact which may reasonably be interpreted as sexually demeaning, humiliating, embarrassing, threatening, or harming a patient, client or key party;
(s) Photographing or filming the body or any body part or pose of a patient, client, or key party, for other than legitimate health care purposes or at the request of and for the benefit of, the patient, client, or key party; and
(t) Showing a patient, client, or key party sexually explicit photographs, for other than legitimate health care purposes.
(2) A nurse or nursing technician shall not:
(a) Offer to provide health care services in exchange for sexual favors;
(b) Use health care information or access to health care information to contact the patient, client or key party for other than legitimate health care.
(3) A nurse or nursing technician shall not engage, or attempt to engage, in sexual misconduct defined in subsection (1) of this section with a person he or she knows or should know is a former patient, client, or key party within two years after the provider-patient/client relationship ends, except as specified in subsection (5) of this section.
(4) After the two-year period of time described in subsection (3) of this section, a nurse or nursing technician shall not engage, or attempt to engage, in the activities listed in subsection (1) of this section if:
(a) The patient, client, or key party will seek or require additional services from the nurse or nursing technician.
(b) There is an imbalance of power, influence, opportunity, and/or special knowledge of the professional relationship.
(5) A nurse who has provided psychological or psychiatric diagnostic or therapeutic services to a patient shall never engage, or attempt to engage, in sexual misconduct as defined in subsection (1) of this section with a former patient, former client, or former key party.
(6) When evaluating whether a nurse or nursing technician 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 provider-patient relationship;
(b) Transfer of care to another nurse or nursing technician;
(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 nurse or nursing technician and the patient or client during the time 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 nurse or nursing technician;
(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) Imbalance of power in the nurse-patient relationship.
(7) Patient, client, or key party initiation or consent does not excuse or negate the nurse or nursing technician's responsibility.
(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 nurse or nursing technician;
(b) Contact that is necessary for a legitimate health care purpose and that meets the standard of care appropriate to the nursing and nursing technician professions; 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 nurse or nursing technician where there is no evidence of, or potential for, exploiting the patient or client, unless prohibited by another statute or rule.
(9) Sexual misconduct also includes sexual contact with any person involving force, intimidation, or lack of consent; or a conviction of a sexual offense listed in RCW 9.94A.030.
(10) Definitions. For the purposes of this section, these terms shall have the following meaning:
(a) "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.
(b) "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 for the patient or client.
(c) "Legitimate health care purpose" means activities for examination, diagnosis, treatment, and personal care of patients or clients, including palliative care, as consistent with standards of practice for the nursing and nursing technician professions. The activity must be within the scope of practice of the nurse or nursing technician.
(d) "Nurse" means a registered nurse, licensed practical nurse, or advanced registered nurse practitioner licensed under chapter 18.79 RCW.
(e) "Nursing technician" means a nursing student, registered under chapter 18.79 RCW and preparing for registered nurse licensure, who is employed in a hospital licensed under chapter 70.41 RCW, a nursing home licensed under chapter 18.51 RCW, or a clinic.
(f) "Patient" or "client" means an individual who receives health care from a nurse or nursing technician.
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