PROPOSED RULEMAKING
STATE BOARD OF PODIATRY
[49 PA. CODE CH. 29]
Sexual Misconduct
[34 Pa.B. 565] The State Board of Podiatry (Board) proposes to amend § 29.1 (relating to definitions) and to add § 29.21a (relating to sexual misconduct) to read as set forth in Annex A.
Effective Date
The proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
Under sections 15 and 16(3) of the Podiatry Practice Act (act) (63 P. S. §§ 42.15 and 42.16(3)), the Board has authority to establish standards of professional conduct for licensed podiatrists.
Background and Purpose
It should be axiomatic that it is unprofessional conduct for a podiatrist to engage in sexual contact with patients. Past decisions of the Board and the American Podiatric Medical Association guidelines denounce sexual contact between podiatrist and patient. However, complaints have been filed by consumers who have been harmed by podiatrists who engage in that unprofessional conduct.
Description of Proposed Rulemaking
The proposed rulemaking amends § 29.1 to define the terms ''sexual behavior'' and ''sexual exploitation'' and adds § 29.21a to make it clear that sexual misconduct is unprofessional conduct.
The purpose of the proposed rulemaking is to better protect patients by providing guidance to the profession and the public as to prohibited sexual conduct between podiatrists and patients. The proposed rulemaking prohibits any sexual contact between a podiatrist and a current patient.
Prohibited ''sexual behavior,'' defined in § 29.1, is any sexual conduct that has no diagnostic or therapeutic purpose, including words, actions or any combination thereof which are, or are intended to be, sexual in nature or which may be construed by a reasonable person as sexual in nature.
The proposed rulemaking further prohibits sexual exploitation by a podiatrist of a current patient. ''Sexual exploitation'' is defined in § 29.1 as sexual behavior with a current patient that uses trust, knowledge, emotions or influence derived from the professional relationship.
The proposed rulemaking provides that licensed podiatrists who engage in prohibited sexual conduct with patients will not be eligible for placement in the Board's impaired professional program instead of disciplinary or corrective actions. The impaired professional program is unable to effectively monitor licensed podiatrists who have engaged in sexual misconduct.
The proposed rulemaking also provides that patient consent would not be considered a defense to disciplinary action in these cases. The imbalance of power inherent in the health care practitioner-patient relationship not only serves as the basis for the prohibition but also undermines the patient's ability to consent to sexual behavior as an equal when trust, knowledge, emotions or influence derived from the professional relationship are used.
Fiscal Impact and Paperwork Requirements
The proposed rulemaking should have no fiscal impact on the Commonwealth or its political subdivisions. Likewise, the proposed rulemaking should not necessitate any legal, accounting, reporting or other paperwork requirements.
Sunset Date
The Board continuously monitors the effectiveness of its regulations. Therefore, no sunset date has been assigned.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 20, 2004, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Board, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Comment
Interested persons are invited to submit written comments, recommendations or objections regarding the proposed rulemaking to Roberta L. Silver, Counsel, State Board of Podiatry, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days of publication of this proposed rulemaking.
JEFFREY S. GARLAND, D.P.M.,
ChairpersonFiscal Note: 16A-448. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 29. STATE BOARD OF PODIATRY
GENERAL PROVISIONS § 29.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Sexual behavior--Any sexual conduct with a current patient during the course of a professional relationship, evaluation, treatment, procedure or other service to the patient, regardless of the setting in which the professional service is provided, including words, actions, or any combination thereof, which are nondiagnostic or nontherapeutic, and are intended to be sexual in nature, or which may be construed by a reasonable person as sexual in nature.
Sexual exploitation--Any sexual behavior, with a current patient, that uses trust, knowledge, emotions or influence derived from the professional relationship.
STANDARDS OF ETHICAL PRACTICE § 29.21a. Sexual misconduct.
Under section 16(a)(3) of the act (63 P. S. § 42.16(a)(3)), the Board may refuse to grant and may suspend or revoke or cancel a license or a registration for gross immorality or misconduct in carrying on the profession of podiatry.
(1) Gross immorality or misconduct includes sexual misconduct by a podiatrist as follows:
(i) Sexual behavior by a podiatrist with a current patient constitutes unprofessional conduct, is prohibited, and subjects the podiatrist to disciplinary action under section 16(a)(3) of the act.
(ii) Sexual exploitation by a podiatrist of a current patient constitutes unprofessional conduct, is prohibited, and subjects the podiatrist to disciplinary action under section 16(a)(3) of the act.
(2) A podiatrist who engages in conduct prohibited by this section will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective action.
(3) Consent is not a defense to conduct prohibited by this section.
[Pa.B. Doc. No. 04-178. Filed for public inspection January 30, 2004, 9:00 a.m.]
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