WSR 16-06-010
PERMANENT RULES
(Medical Quality Assurance Commission)
[Filed February 18, 2016, 10:41 a.m., effective March 20, 2016]
Effective Date of Rule: Thirty-one days after filing.
Purpose: WAC 246-919-630 Sexual misconduct, the medical quality assurance commission has modified the rule to clarify what forcible or nonconsensual acts are within the definition of sexual misconduct by an allopathic physician. The amended rule clarifies and updates the definition of sexual misconduct to establish clearer standards of conduct for allopathic physicians.
Citation of Existing Rules Affected by this Order: Amending WAC 246-919-630.
Other Authority: Executive Order 06-03.
Adopted under notice filed as WSR 15-19-127 on September 21, 2015.
Changes Other than Editing from Proposed to Adopted Version: WAC 246-919-630(1) was revised to include clarifying language.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.
Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.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: November 4, 2015.
Melanie de Leon
Executive Director
AMENDATORY SECTION (Amending WSR 06-03-028, filed 1/9/06, effective 2/9/06)
WAC 246-919-630 Sexual misconduct.
(1) ((Definitions:)) The following definitions 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 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 physician and the person. The fact that a person is not actively receiving treatment or professional services is not the sole determining factor.
(b) "Physician" means a person licensed to practice medicine and surgery under chapter
18.71 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 shall not engage in sexual misconduct with a current patient or a key third party. A 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 physician or masturbation by the physician 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.
(3) A 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 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 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 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;
(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.
