WSR 17-01-164
(Board of Osteopathic Medicine and Surgery)
[Filed December 21, 2016, 10:15 a.m., effective January 21, 2017]
Effective Date of Rule: Thirty-one days after filing.
Purpose: WAC 246-853-600 Sexual misconduct, the board of osteopathic medicine and surgery has amended the rule to clarify what forcible or nonconsensual acts are within the definition of sexual misconduct by osteopathic physicians.
Citation of Existing Rules Affected by this Order: Amending WAC 246-853-600.
Statutory Authority for Adoption: RCW 18.57.005 and 18.130.050.
Other Authority: RCW 18.130.062 and Executive Order 06-03.
Adopted under notice filed as WSR 16-16-073 on July 28, 2016.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.
Date Adopted: September 23, 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 subsection 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) 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.
(4) 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))) (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.