WSR 16-16-073
(Board of Osteopathic Medicine and Surgery)
[Filed July 28, 2016, 3:20 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-03-065.
Title of Rule and Other Identifying Information: WAC 246-853-600 Sexual misconduct, the board of osteopathic medicine and surgery (board) is proposing to amend the rule to clarify what forcible or nonconsensual acts are within the definition of sexual misconduct by osteopathic physicians.
Hearing Location(s): Department of Health, Kent Office, 20425 72nd Avenue South, Building 2, Suite 310, Kent, WA 98032, on September 23, 2016, at 9:30 a.m.
Date of Intended Adoption: September 23, 2016.
Submit Written Comments to: Brett Cain, P.O. Box 47852, Olympia, WA 98504-7852, e-mail, fax (360) 236-2901, by September 21, 2016.
Assistance for Persons with Disabilities: Contact Cece Zenker at (360) 236-4633, by September 19, 2016, 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 what forcible or nonconsensual acts are within the definition of sexual misconduct by osteopathic physicians. The board's proposed rule adds acts of sexual misconduct which include sexual contact with any person including people who are not patients, clients, or key parties that involves force, intimidation, lack of consent; or a conviction of a sex offense listed in RCW 9.94A.030. Updating the sexual misconduct rule will establish clearer standards of conduct and will help the board be consistent in its enforcement activities to more fully comply with RCW 18.130.050, 18.130.062, and Executive Order 06-03.
Reasons Supporting Proposal: Experience with investigations and enforcement under the current rule has raised the need to clarify what acts constitute sexual misconduct by osteopathic physicians. The proposal will establish clearer standards of conduct for osteopathic physicians and will help them understand what acts constitute sexual misconduct.
Statutory Authority for Adoption: RCW 18.57.005 and 18.130.050.
Statute Being Implemented: RCW 18.130.050 and 18.130.062.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state board of osteopathic medicine and surgery, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Brett Cain, 111 Israel Road S.E., Tumwater, WA 98504, (360) 236-4766.
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 not required under RCW 34.05.328. The agency did not complete a cost-benefit analysis under RCW 34.05.328 (5)(b)(iv), rules that only clarify language of a rule without changing its effect.
July 28, 2016
C. Hunter, DO
AMENDATORY SECTION (Amending WSR 07-12-091, filed 6/6/07, effective 7/7/07)
WAC 246-853-600 Sexual misconduct.
(1) ((Definitions:)) The definitions in this section apply throughout this section unless the context clearly requires otherwise:
(a) "Patient" means a person who is receiving health care or treatment, or has received health care or treatment without a termination of the osteopathic physician-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 osteopathic physician and the person. The fact that a person is not actively receiving treatment or professional services is not the sole determining factor.
(b) "Osteopathic physician" means a person licensed to practice osteopathic medicine and surgery under chapter 18.57 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) An osteopathic physician shall not engage in sexual misconduct with a current patient or a key third party. An osteopathic physician 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 osteopathic physician or masturbation by the osteopathic physician while the patient is present;
(i) Offering to provide practice-related services, such as medication, in exchange for sexual favors;
(j) Soliciting a date;
(k) Engaging in a conversation regarding the sexual history, preferences or fantasies of the osteopathic physician.
(3) An osteopathic physician 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 osteopathic physician:
(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 osteopathic physician'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 board 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 osteopathic physician;
(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.