WSR 15-19-123
(Medical Quality Assurance Commission)
[Filed September 21, 2015, 10:11 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-09-139.
Title of Rule and Other Identifying Information: WAC 246-918-410 Sexual misconduct, the medical quality assurance commission (commission) is proposing rule modification to sexual misconduct standards to clarify what forcible or nonconsensual acts are within the definition of sexual misconduct by an allopathic physician assistant.
Hearing Location(s): DoubleTree by Hilton, Airport/Southcenter, 16500 Southcenter Parkway, Seattle, WA 98188, (206) 575-8220, on November 4, 2015, at 3:00 p.m.
Date of Intended Adoption: November 4, 2015.
Submit Written Comments to: Daidria Pittman, P.O. Box 47866, Olympia, WA 98504-7866, e-mail, fax (360) 236-4626, by October 27, 2015.
Assistance for Persons with Disabilities: Contact Daidria Pittman by October 30, 2015, TTY (800) 833-6388 or 711.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rule clarifies and updates the sexual misconduct rule to establish clearer standards of conduct for allopathic physician assistants under the commission's authority. It will also help allopathic physician assistants understand what constitutes sexual misconduct with any person including people who are not patients, clients, or key third parties that involves force, intimidation, lack of consent, or a conviction of a sex offense listed in RCW 9.94A.030.
Reasons Supporting Proposal: Over time the commission has realized a very serious category of sexual misconduct may not be captured by current rules; sexual misconduct by an allopathic physician assistant against a person other than a patient, client, or key party. Some examples include sexual harassment of staff, incest, or other sexual assaults against family members, social acquaintances, or strangers. Updating the sexual misconduct rule will establish clearer standards of conduct and will help the commission be consistent in its enforcement activities to more fully comply with RCW 18.130.062 and Executive Order 06-03.
Statutory Authority for Adoption: RCW 18.71.017 and 18.130.062.
Statute Being Implemented: RCW 18.130.062.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state department of health, medical quality assurance commission, governmental.
Name of Agency Personnel Responsible for Drafting: Daidria Pittman, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-2727; Implementation and Enforcement: Melanie de Leon, 111 Israel Road S.E., Tumwater, WA 98501, (360) 236-2755.
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 commission did not complete a cost-benefit analysis under RCW 34.05.328 (5)(b)(iv). Rule making that only clarifies language of a rule without changing its effect does not require a cost-benefit analysis.
September 19, 2015
Melanie de Leon
Executive Director
AMENDATORY SECTION (Amending WSR 06-03-028, filed 1/9/06, effective 2/9/06)
WAC 246-918-410 Sexual misconduct.
(1) Definitions:
(a) "Patient" means a person who is receiving health care or treatment, or has received health care or treatment without a termination of the physician assistant-patient relationship. The determination of when a person is a patient is made on a case-by-case basis with consideration given to a number of factors, including the nature, extent and context of the professional relationship between the physician assistant and the person. The fact that a person is not actively receiving treatment or professional services is not the sole determining factor.
(b) "Physician assistant" means a person licensed to practice as a physician assistant under chapter 18.71A RCW.
(c) "Key third party" means a person in a close personal relationship with the patient and includes, but is not limited to, spouses, partners, parents, siblings, children, guardians and proxies.
(2) A physician assistant shall not engage in sexual misconduct with a current patient or a key third party. A physician assistant engages in sexual misconduct when he or she engages in the following behaviors with a patient or key third party:
(a) Sexual intercourse or genital to genital contact;
(b) Oral to genital contact;
(c) Genital to anal contact or oral to anal contact;
(d) Kissing in a romantic or sexual manner;
(e) Touching breasts, genitals or any sexualized body part for any purpose other than appropriate examination or treatment;
(f) Examination or touching of genitals without using gloves;
(g) Not allowing a patient the privacy to dress or undress;
(h) Encouraging the patient to masturbate in the presence of the physician assistant or masturbation by the physician assistant while the patient is present;
(i) Offering to provide practice-related services, such as medications, in exchange for sexual favors;
(j) Soliciting a date;
(k) Engaging in a conversation regarding the sexual history, preferences or fantasies of the physician assistant.
(3) A physician assistant shall not engage in any of the conduct described in subsection (2) of this section with a former patient or key third party if the physician assistant:
(a) Uses or exploits the trust, knowledge, influence, or emotions derived from the professional relationship; or
(b) Uses or exploits privileged information or access to privileged information to meet the physician assistant's personal or sexual needs.
(4) 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.
(5) To determine whether a patient is a current patient or a former patient, the commission will analyze each case individually, and will consider a number of factors, including, but not limited to, the following:
(a) Documentation of formal termination;
(b) Transfer of the patient's care to another health care provider;
(c) The length of time that has passed;
(d) The length of time of the professional relationship;
(e) The extent to which the patient has confided personal or private information to the physician assistant;
(f) The nature of the patient's health problem;
(g) The degree of emotional dependence and vulnerability.
(((5))) (6) This section does not prohibit conduct that is required for medically recognized diagnostic or treatment purposes if the conduct meets the standard of care appropriate to the diagnostic or treatment situation.
(((6))) (7) It is not a defense that the patient, former patient, or key third party initiated or consented to the conduct, or that the conduct occurred outside the professional setting.
(((7))) (8) A violation of any provision of this rule shall constitute grounds for disciplinary action.