RULES AND REGULATIONS
STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS
[49 PA. CODE CHS. 47--49]
Sexual Misconduct
[36 Pa.B. 4469]
[Saturday, August 12, 2006]The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors (Board) amends §§ 47.61--47.66, 48.21--48.26 and 49.21--49.26 to read as set forth in Annex A. This final-form rulemaking pertains to sexual misconduct committed by licensed social workers, marriage and family therapists and professional counselors.
A. Effective Date
This final-form rulemaking is effective upon publication in the Pennsylvania Bulletin.
B. Statutory Authority
The final-form rulemaking is authorized under section 6(2) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (act) (63 P. S. § 1906(2)).
C. Background and Purpose
This final-form rulemaking was developed to address increasing complaints of sexual misconduct against health care professionals who are licensed by the Department of State, Bureau of Professional and Occupational Affairs. This final-form rulemaking addresses issues concerning sexual misconduct in the context of the provision of social work, clinical social work, marriage and family therapy and professional counseling services.
D. Summary of Comments and Responses on Proposed Rulemaking
Notice of proposed rulemaking was published at 34 Pa.B. 4908 (September 4, 2004). Publication was followed by a 30-day public comment period during which the Board received comments from the Pennsylvania Chapter of the National Association of Social Workers (NASW-PA) and the Pennsylvania Catholic Conference.
Following the close of the public comment period, the Board received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC). The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) did not comment. The following is a response to the comments and a description of changes to this final-form rulemaking.
General public comments
The Pennsylvania Catholic Conference noted that the act defines the terms ''licensed clinical social worker,'' ''licensed marriage and family therapist,'' ''licensed professional counselor'' and ''licensed social worker.'' However, the proposed rulemaking did not use the term ''licensed'' and recommended that the Board insert the term ''licensed'' before all references to these professionals throughout the final-form rulemaking to be consistent with the terminology used in the act. The Board agrees with this recommendation and makes these amendments throughout this final-form rulemaking.
NASW-PA wrote in support of the rulemaking. NASW-PA asked whether a professional who has a sexual addiction problem could be able to disclose that problem to the impaired professional program and receive assistance if the professional was not otherwise subject to disciplinary or corrective action. The Board notes that the impaired professional program is unable to effectively monitor professionals who have a sexual addiction problem. Accordingly, the program is not currently utilized for sexual addiction problems.
Proposed §§ 47.61, 48.21 and 49.21
The definitions in proposed §§ 47.61, 48.21 and 49.21 have been moved to §§ 47.1, 48.1 and 49.1 (relating to definitions). The Board intends to propose, in the near future, regulations pertaining to codes of ethics and professional standards of conduct that will use the same definitions. Accordingly, it is advantageous for the Board to move its definitions so that the definitions will apply to other future provisions that also use the defined terms. As a result of this change, the remaining sections have been renumbered.
In the definition of ''client/patient,'' the HPLC and IRRC recommended that the word ''individual'' replace ''person.'' In addition, IRRC suggested that ''person'' also be changed to ''individual'' in §§ 47.62, 48.22 and 49.22 (relating to former sexual partners as clients/patients). The Board agreed with these recommendations and amended the sections accordingly. The HPLC and IRRC also asked for clarification regarding the type of decisions a legal guardian can make for a minor or an incapacitated adult. The Board will defer consideration of this comment. This language has been removed in this final-form rulemaking because the Board intends to deal with this issue in proposed regulations pertaining to codes of ethics and standards of professional practice. The HPLC and IRRC also asked for clarification of the term ''other exploitive dual relationships'' in the proposed definition of ''client/patient.'' Because this term will apply to the future regulations, the Board has deleted this reference in this final-form rulemaking.
With respect to the definition of ''immediate family member,'' the HPLC recommended that the Board review and perhaps borrow language from the definition of ''family or household members'' in 23 Pa.C.S. § 6102 (relating to definitions). However, the Board notes that the proposed definition is consistent with other licensing boards' definitions. See regulations of the State Board of Psychology in § 41.1 (relating to definitions). The Board believes that this definition is appropriate for setting a professional standard of conduct for licensees and should remain as proposed for internal consistency.
With respect to the proposed definition of ''sexual intimacies,'' the HPLC recommended that the Board add language similar to that of the State Board of Nursing that states that licensees have a duty to safeguard the client/patient's dignity and privacy with respect to sexual matters. The Board is in the process of drafting regulations regarding codes of ethics and professional standards that will include the suggested language. Accordingly, the Board has decided not to include that language in this final-form rulemaking. The HPLC also recommended that the Board add language so that the definition of ''sexual intimacies'' includes some of the prohibitions in State Board of Nursing regulations with respect to inappropriate touching and inappropriate sexual comments. The Board notes that the proposed definition includes ''nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature'' and ''touching, physical contact or self-disclosure of a sexual or erotic nature.'' The Board believes that inappropriate touching and inappropriate sexual comments are already included in the language of this definition.
IRRC and the NASW-PA suggested that the Board amend the definition of ''sexual intimacies'' to clarify that nonsexual physical conduct or self-disclosure does not fall under the definition of ''sexual intimacies'' and, therefore, is not prohibited behavior. The Board considered this suggestion, but believes that the definition refers to physical conduct or self-disclosure that is of a sexual or erotic nature and, therefore, prohibited. For this reason, the Board does not believe that a provision describing permitted conduct is necessary.
The HPLC asked the Board to consider whether other acts should be described as specifically prohibited, such as involuntary deviate sexual intercourse, aggravated indecent assault and indecent assault. The Board believes that this conduct is encompassed in the revised definition of ''sexual intimacies'' in subparagraph (vi).
The HPLC and IRRC commented that the definition of ''sexual intimacies'' prohibits a licensee from soliciting a date from a client/patient, but does not prohibit a licensee from accepting a date from a client/patient. The HPLC suggested expanding the language to prohibit a licensee from accepting a date. The Board has agreed with this suggestion and amended the language in the final-form rulemaking by expanding the definition to include soliciting or accepting a date from a client/patient.
The HPLC noted that the term ''exposure'' was used in the proposed definition and asked whether the Board intended to refer to ''indecent exposure.'' The Board has amended this language to include ''indecent exposure'' rather than ''exposure'' in the definition of ''sexual intimacies.'' The HPLC also noted that part of the definition was in parentheses and recommended that the parentheses be removed. The Board agreed with this suggestion and has removed the parenthesis in the definition.
Renumbered §§ 47.61, 48.21 and 49.21 (relating to prohibited conduct)
The HPLC recommended that the final-form rulemaking specifically provide that engaging in conduct that is prohibited by the regulations is unprofessional conduct and will subject the licensee to disciplinary proceedings. The Board agrees and has added a provision to §§ 47.64, 48.24 and 49.24 (relating to disciplinary proceedings).
Renumbered §§ 47.63, 48.23 and 49.23 (relating to sexual intimacies with a former client/patient or an immediate family member of a former client/patient)
The HPLC questioned whether the language regarding sexual intimacies between a licensee and a former client/patient or immediate family member violates the Due Process Clause of the United States Constitution. As an example, the HPLC noted that the language prohibits sexual intimacies for at least 7 years following the termination of the professional relationship and ''then only under limited circumstances.'' The HPLC questioned whether this language puts licensees on sufficient notice as to what conduct is prohibited, as required by the Due Process Clause. The HPLC recommended that the Board consider using language which states the general rule that sexual conduct is prohibited for 7 years and that after 7 years sexual conduct violates the regulations if certain conditions are present. The Board has agreed with this suggestion and has amended the language accordingly.
The HPLC also noted that language regarding sexual intimacies with a former client/patient or an immediate family member of a former client/patient contained no legal standard for the Board to apply with respect to initiating disciplinary action. The HPLC suggested that the Board provide for language that would state that after 7 years a licensee may engage in sexual conduct which is not exploitive. The Board agreed with this suggestion and has amended the language in subsection (b) accordingly.
IRRC requested that the Board explain the relevant factors that support a 7-year time period after termination of the professional relationship during which sexual intimacies between a licensee and a client/patient are prohibited. The Board researched different mental health professional associations regarding licensees and found that there were many positions on the subject. For example, the National Association of Social Workers believes that sexual conduct between a social worker and former client/patient is never appropriate. The position of the American Association for Marriage and Family Therapy is that sexual conduct between a marriage and family therapist and former client/patient would be appropriate in some circumstances after a period of 2 years after the termination of the professional relationship. The National Federation of Societies for Clinical Social Work, Inc. believes there should never be sexual contact between a clinical social worker and a former client/patient. Based upon this research, the Board believes that a 7-year prohibition is an appropriate compromise.
Renumbered §§ 47.64, 48.24 and 49.24 (relating to disciplinary proceedings)
The HPLC and IRRC expressed their understanding that the Board believes the language in subsection (c) is a legal standard to impose disciplinary action and that the HPLC and IRRC understands the language to be rather a burden of proof. The HPLC asked whether this shifting of the burden of proof to the licensee is constitutional. The Board agrees with the concerns raised and has decided to amend the language so that it requires that in disciplinary proceedings, the Board will consider whether there has been exploitation of the client/patient.
The HPLC also recommended that the language ''may not be a defense'' regarding disciplinary proceedings in subsections (a) be changed to ''shall not be a defense.'' The Board considered this suggestion and changed the language to ''is not a defense.''
The HPLC and IRRC also noted that the blanket prohibition against engaging in sexual intimacies is inconsistent with subsection (c), which provides that in disciplinary proceedings, licensees have the burden of demonstrating there has been no exploitation of the client/patient in light of all of the relevant factors enumerated under §§ 47.64(b)(1)--(7), 48.24(b)(1)--(7) and 49.24(b)(1)--(7), respectively. The Board agreed with IRRC in that the only situation in which evidence that the relationship was not exploitative is relevant is when the sexual conduct occurs more than 7 years after termination of the professional relationship. The Board, therefore, agreed with IRRC's recommendation that references to §§ 47.62, 47.63, 48.22, 48.23, 49.22 and 49.24 be deleted from subsection (c). The Board has revised these references in final rulemaking.
E. Fiscal Impact and Paperwork Requirements
This final-form rulemaking will have no fiscal impact and will not impose additional paperwork requirements on the private sector, the general public or the Commonwealth and its political subdivisions.
F. Sunset Date
The Board continually monitors the effectiveness of its regulations through communication with the regulated population. Accordingly, no sunset date has been assigned.
G. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 23, 2004, the Board submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 4908, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the HPLC, the SCP/PLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 13, 2006 this final-form rulemaking was approved by the HPLC. On July 5, 2006, the final-form rulemaking was deemed approved by the SCP/PLC. Under section 5.1(e) of the Regulatory Review Act, IRRC met on July 6, 2006, and approved the final-form rulemaking.
H. Contact Person
Further information may be obtained by contacting Sandra Matter, Administrative Assistant, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-1389.
I. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The amendments to this final-form rulemaking do not enlarge the purpose of proposed rulemaking published at 34 Pa.B. 4908.
(4) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing acts identified in Part B of this preamble.
J. Order
The Board, acting under its authorizing statutes, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapters 47, 48 and 49, are amended by amending §§ 47.1, 48.1 and 49.1 and by adding §§ 47.61--47.65, 48.21--48.25 and 49.21--49.25 to read as set forth in Annex A.
(b) The Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General as required by law.
(c) The Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect on publication in the Pennsylvania Bulletin.
RONALD E. HAYS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 3919 (July 22, 2006).)
Fiscal Note: Fiscal Note 16A-691 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 47. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS
GENERAL PROVISIONS § 47.1. Definitions.
The following words and terms, when used in this chapter have the following meanings, unless the context clearly indicates otherwise:
Accredited program--A graduate school social work or social welfare program offered by a school accredited by the Council on Social Work Education.
Accredited school--A graduate school accredited by the Council on Social Work Education.
Act--The Social Workers, Marriage and Family Therapists and Professional Counselors Act (63 P. S. §§ 1901--1922).
Board--The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors.
Client/patient--An individual, group or family for whom a licensed social worker or licensed clinical social worker provides social work services or clinical social work services. In the case of an individual with a legal guardian, such as a minor or legally incapacitated adult, the individual is the client/patient.
Immediate family member--A parent/guardian, child, sibling, spouse or other family member with whom the client/patient resides.
Licensed clinical social worker--A person who is currently licensed as a licensed clinical social worker under section 7 of the act (63 P. S. § 1907).
Licensed social worker--A person who is currently licensed as a licensed social worker under section 7 of the act.
Professional relationship--A therapeutic relationship which is deemed to exist for the period of time beginning with the first professional contact or consultation between a licensed social worker or licensed clinical social worker and a client/patient and continuing thereafter until the last date of a professional service. If a licensed social worker or licensed clinical social worker sees a client/patient on an intermittent basis, the professional relationship is deemed to start anew on each date that the licensed social worker or licensed clinical social worker provides a professional service to the client/patient.
Provisional licensed social worker--A person who is currently licensed as a provisional licensed social worker under section 7 of the act.
Related field--Includes the fields of psychiatry, psychology, marriage and family therapy, counseling, art therapy, dance/movement therapy, drama therapy, music therapy, human services and counseling education.
Sexual intimacies--Romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:
(i) Sexual intercourse, or any touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.
(ii) Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.
(iii) Sexual invitations.
(iv) Soliciting or accepting a date from a client/patient.
(v) Masturbating in the presence of a client/patient or encouraging a client/patient to masturbate in the presence of the licensed social worker or licensed clinical social worker.
(vi) Indecent exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.
Supervisee--An individual who is fulfilling the supervised experience requirement for licensure as a clinical social worker.
Supervision--The act of overseeing, directing or instructing the activity or course of action of another.
Supervisor--An individual providing supervision to a supervisee who meets the criteria in § 47.1a (relating to qualifications for supervisors).
SEXUAL MISCONDUCT § 47.61. Prohibited conduct.
Sexual intimacies between a licensed social worker or licensed clinical social worker and a current client/patient, or an immediate family member of a current client/patient, are prohibited.
§ 47.62. Former sexual partners as clients/patients.
Licensed social workers and licensed clinical social workers may not accept as client/patients individuals with whom they have engaged in sexual intimacies.
§ 47.63. Sexual intimacies with a former client/patient or an immediate family member of a former client/patient.
(a) Sexual intimacies between a licensed social worker or licensed clinical social worker and a former client/patient, or an immediate family member of a former client/patient are prohibited for 7 years following the termination of the professional relationship.
(b) Following the passage of the 7-year period, licensed social workers and licensed clinical social workers may engage in sexual conduct with a former client/patient, or an immediate family member of a former client/patient which is not exploitive. In determining whether the conduct is exploitive, the licensed social worker or licensed clinical social worker shall consider all of the following:
(1) The amount of time that has passed since the professional relationship terminated.
(2) The nature and duration of the therapy.
(3) The circumstances of termination.
(4) The client/patient's personal history--for example, unique vulnerabilities.
(5) The client/patient's current mental status.
(6) Statements or actions made by the licensed social worker or licensed clinical social worker during the course of therapy suggesting or inviting the possibility of a posttermination sexual or romantic relationship with the client/patient.
(7) The likelihood of adverse impact on the client/patient and immediate family members of the client/patient.
§ 47.64. Disciplinary proceedings.
(a) A violation of §§ 47.61--47.63 (relating to prohibited conduct; former sexual partners as clients/patients; sexual intimacies with a former client/patient or an immediate family member of a former client/patient) will be deemed unprofessional conduct and will subject the licensed social worker or licensed clinical social worker to discipline under section 11(a)(2) of the act (63 P. S. § 1911(a)(2).
(b) The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the licensed social worker or licensed clinical social worker is not a defense in any disciplinary action brought under §§ 47.61--47.63.
(c) With the exception of information contained in a professional record, neither opinion evidence, reputation evidence nor specific instances of the past sexual conduct of a former client/patient, or immediate family member of a former client/patient may be admissible in a disciplinary action brought under §§ 47.61--47.63.
(d) In a disciplinary proceeding brought under § 47.63(b), the Board will consider whether there has been exploitation of the client/patient in light of all of the relevant factors enumerated under § 47.63(b)(1)--(7).
§ 47.65. Impaired professional program.
When the Board takes disciplinary or corrective action against a licensed social worker or licensed clinical social worker under section 11(a) of the act (63 P. S. § 1911(a)), for conduct prohibited by §§ 47.61--47.63 (relating to prohibited conduct; former sexual partners as clients/patients; and sexual intimacies with a former client/patient, or an immediate family member of a former client/patient), the licensed social worker or licensed clinical social worker will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective action.
CHAPTER 48. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS--LICENSURE OF MARRIAGE AND FAMILY THERAPISTS
GENERAL PROVISIONS § 48.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
AAMFT--The American Association for Marriage and Family Therapy.
AMFTRB--The Association of Marital and Family Therapy Regulatory Boards.
Accredited educational institution--A graduate school which is recognized as an institution of higher education or which is accredited by a regional accrediting association recognized by the Council for Higher Education Accreditation.
Act--The Social Workers, Marriage and Family Therapists and Professional Counselors Act (63 P. S. §§ 1901--1922).
Board--The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors.
COAMFTE--The Commission on Accreditation for Marriage and Family Therapy Education.
Client/patient--An individual, group or family for whom a licensed marriage and family therapist provides marriage and family therapy services. In the case of an individual with a legal guardian, such as a minor or legally incapacitated adult, the individual is the client/patient.
Doctoral degree in marriage and family therapy--A doctoral degree which is awarded upon successful completion of a program in marriage and family therapy which is either accredited by COAMFTE, or, which includes coursework that meets the criteria in § 48.2 (relating to educational requirements).
Field closely related to the practice of marriage and family therapy--Includes the fields of social work, psychology, counseling, child development and family studies, medicine, nursing, pastoral counseling, ministry, theology, education and sociology.
Graduate level coursework in marriage and family therapy acceptable to the Board--Coursework that meets the criteria in § 48.2.
Immediate family member--A parent/guardian, child, sibling, spouse or other family member with whom the client/patient resides.
Institution of higher education--An independent institution of higher education, a community college, a State-related institution or a member institution of the State System. (See 22 Pa. Code § 33.102 (relating to definitions)).
Master's degree in marriage and family therapy--A master's degree which is awarded upon successful completion of a program in marriage and family therapy which is either accredited by COAMFTE, or, which includes coursework that meets the criteria in § 48.2.
MFT--Marriage and family therapist.
Planned program of 60 semester hours or 90 quarter hours which is closely related to marriage and family therapy--A program which includes coursework that meets the criteria in § 48.2.
Professional relationship--A therapeutic relationship which is deemed to exist for the period of time beginning with the first professional contact or consultation between a licensed marriage and family therapist and a client/patient and continuing thereafter until the last date of a professional service. If a licensed marriage and family therapist sees a client/patient on an intermittent basis, the professional relationship is deemed to start anew on each date that the licensed marriage and family therapist provides a professional service to the client/patient.
Program recognized by a National accrediting agency--A master, doctor or postgraduate degree training program accredited by COAMFTE.
Related field--Includes the fields of psychiatry, psychology, social work, counseling, art therapy, dance/movement therapy, drama therapy, music therapy, human services and counseling education.
Sexual intimacies--Romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:
(i) Sexual intercourse, or any touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.
(ii) Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.
(iii) Sexual invitations.
(iv) Soliciting or accepting a date from a client/patient.
(v) Masturbating in the presence of a client/patient or encouraging a client/patient to masturbate in the presence of the licensed marriage and family therapist.
(vi) Indecent exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.
Supervisee--An individual who is fulfilling the supervised experience requirement for licensure.
Supervision--The act of overseeing, directing or instructing the activity or course of action of another.
Supervisor--An individual providing supervision to a supervisee who meets the criteria in § 48.3 (relating to qualifications for supervisors).
SEXUAL MISCONDUCT § 48.21. Prohibited conduct.
Sexual intimacies between a licensed marriage and family therapist and a current client/patient, or an immediate family member of a current client/patient, are prohibited.
§ 48.22. Former sexual partners as clients/patients.
Licensed marriage and family therapists may not accept as client/patients individuals with whom they have engaged in sexual intimacies.
§ 48.23. Sexual intimacies with a former client/patient or an immediate family member of a former client/patient.
(a) Sexual intimacies between a licensed marriage and family therapist and a former client/patient, or an immediate family member of a former client/patient are prohibited for 7 years following the termination of the professional relationship.
(b) Following the passage of the 7-year period, licensed marriage and family therapists may engage in sexual conduct with a former client/patient, or an immediate family member of a former client/patient which is not exploitive. In determining whether the conduct is exploitive, the licensed marriage and family therapist shall consider all of the following:
(1) The amount of time that has passed since the professional relationship terminated.
(2) The nature and duration of the therapy.
(3) The circumstances of termination.
(4) The client/patient's personal history, for example, unique vulnerabilities.
(5) The client/patient's current mental status.
(6) Statements or actions made by the licensed marriage and family therapist during the course of therapy suggesting or inviting the possibility of a posttermination sexual or romantic relationship with the client/patient.
(7) The likelihood of adverse impact on the client/patient and immediate family members of the client/patient.
§ 48.24. Disciplinary proceedings.
(a) A violation of §§ 48.21--48.23 (relating to prohibited conduct; former sexual partners as clients/patients; and sexual intimacies with a former client/patient or an immediate family member of a former client/patient) will be deemed unprofessional conduct and will subject the licensed marriage and family therapist to discipline under section 11(a)(2) of the act (63 P. S. § 1911(a)(2)).
(b) The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the licensed marriage and family therapist is not a defense in any disciplinary action brought under §§ 48.21--48.23.
(c) With the exception of information contained in a professional record, neither opinion evidence, reputation evidence nor specific instances of the past sexual conduct of a former client/patient or immediate family member of a former client/patient may be admissible in a disciplinary action brought under §§ 48.21--48.23.
(d) In a disciplinary proceeding brought under § 48.23(b), the Board will consider whether there has been exploitation of the client/patient in light of all of the relevant factors enumerated under § 48.23(b)(1)--(7).
§ 48.25. Impaired professional program.
When the Board takes disciplinary or corrective action against a licensed marriage and family therapist under section 11(a) of the act (63 P. S. § 1911(a)), for conduct prohibited by §§ 48.21--48.23 (relating to prohibited conduct; former sexual partners as clients/patients; and sexual intimacies with a former client/patient, or an immediate family member of a former client/ patient), the licensed marriage and family therapist will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective action.
CHAPTER 49. STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS--LICENSURE OF PROFESSIONAL COUNSELORS
GENERAL PROVISIONS § 49.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Accredited educational institution--A graduate school which is recognized as an institution of higher education or which is accredited by a regional accrediting association recognized by the Council for Higher Education Accreditation.
Act--The Social Workers, Marriage and Family Therapists and Professional Counselors Act (63 P. S. §§ 1901--1922).
Board--The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors.
CACREP--Council for Accreditation of Counseling and Related Programs.
Client/patient-An individual, group or family for whom a licensed professional counselor provides professional counseling services. In the case of an individual with a legal guardian such as a minor or legally incapacitated adult, the individual is the client/patient.
Doctoral degree in a field closely related to the practice of professional counseling. Includes one of the following:
(i) Doctoral degrees in social work, psychiatry, psychology, art therapy, dance/movement therapy, drama therapy, music therapy, human services, counseling education and child development and family studies.
(ii) Another doctoral degree in any applied behavioral science which is awarded after successful completion of a master's degree in a field closely related to the practice of professional counseling and that includes advanced (beyond the master's level) clinical instruction and advanced (beyond the master's level) coursework in any five of the educational requirements in § 49.2(1)--(8) (relating to educational requirements).
Doctoral degree in professional counseling--A doctoral degree which is awarded upon successful completion of a program which includes coursework that meets and builds upon the educational requirements in § 49.2.
Immediate family member--A parent/guardian, child, sibling, spouse or other family member with whom the client/patient resides.
Institution of higher education--An independent institution of higher education, a community college, a State-related institution or a member institution of the State System. See 22 Pa. Code § 33.102 (relating to definitions).
Master's degree in a field closely related to the practice of professional counseling includes--One of the following:
(i) Degrees in social work, psychology, art therapy, dance/movement therapy, drama therapy, music therapy, human services, counseling education and child development and family studies.
(ii) A degree in any applied behavioral science that includes a practicum or internship and meets any five of the educational requirements in § 49.2(1)--(8).
Planned program of 60 semester hours or 90 quarter hours of graduate coursework in counseling or a field closely related to the practice of professional counseling--A program which includes coursework that meets the criteria in § 49.2.
Professional relationship-A therapeutic relationship which is deemed to exist for the period of time beginning with the first professional contact or consultation between a licensed professional counselor and a client/patient and continuing thereafter until the last date of a professional service. If a licensed professional counselor sees a client/patient on an intermittent basis, the professional relationship is deemed to start anew on each date that the licensed professional counselor provides a professional service to the client/patient.
Related field--Includes the fields of psychiatry, psychology, social work, marriage and family therapy, art therapy, dance/movement therapy, drama therapy, music therapy, human services and counseling education.
Sexual intimacies--Romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:
(i) Sexual intercourse, or any touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.
(ii) Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.
(iii) Sexual invitations.
(iv) Soliciting or accepting a date from a client/patient.
(v) Masturbating in the presence of a client/patient or encouraging a client/patient to masturbate in the presence of the licensed professional counselor.
(vi) Indecent exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.
Supervisee--An individual who is fulfilling the supervised experience requirement for licensure.
Supervision--The act of overseeing, directing or instructing the activity or course of action of another.
Supervisor--An individual providing supervision to a supervisee who meets the criteria in § 49.3 (relating to qualifications for supervisors).
SEXUAL MISCONDUCT § 49.21. Prohibited conduct.
Sexual intimacies between a licensed professional counselor and a current client/patient, or an immediate family member of a current client/patient, are prohibited.
§ 49.22. Former sexual partners as clients/patients.
Licensed professional counselors may not accept as client/patients individuals with whom they have engaged in sexual intimacies.
§ 49.23. Sexual intimacies with a former client/patient or an immediate family member of a former client/patient.
(a) Sexual intimacies between a licensed professional counselor and a former client/patient, or an immediate family member of a former client/patient are prohibited for 7 years following the termination of the professional relationship.
(b) Following the passage of the 7-year period, licensed professional counselors may engage in sexual conduct with a former client/patient, or an immediate family member of a former client/patient which is not exploitive. In determining whether the conduct is exploitive, the licensed professional counselor shall consider all of the following:
(1) The amount of time that has passed since the professional relationship terminated.
(2) The nature and duration of the therapy.
(3) The circumstances of termination.
(4) The client/patient's personal history, for example, unique vulnerabilities.
(5) The client/patient's current mental status.
(6) Statements or actions made by the licensed professional counselor during the course of therapy suggesting or inviting the possibility of a posttermination sexual or romantic relationship with the client/patient.
(7) The likelihood of adverse impact on the client/patient and immediate family members of the client/patient.
§ 49.24. Disciplinary proceedings.
(a) A violation of §§ 49.21--49.23 (relating to prohibited conduct; former sexual partners as clients/patients; and sexual intimacies with a former client/patient or an immediate family member of a former client/patient) will be deemed unprofessional conduct and will subject the licensed professional counselor to discipline under section 1911(a)(2) of the act (63 P. S. §§ 1911(a)(2)).
(b) The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the licensed professional counselor is not a defense in any disciplinary action brought under §§ 49.21--49.23.
(c) With the exception of information contained in a professional record, neither opinion evidence, reputation evidence nor specific instances of the past sexual conduct of a former client/patient or immediate family member of a former client/patient may be admissible in a disciplinary action brought under §§ 49.21--49.23.
(d) In a disciplinary proceeding brought under § 49.23(b), the Board will consider whether there has been exploitation of the client/patient in light of all of the relevant factors enumerated under § 49.23(b)(1)--(7).
§ 49.25. Impaired professional program.
When the Board takes disciplinary or corrective action against a licensed professional counselor under section 11(a) of the act (63 P. S. § 1911(a)), for conduct prohibited by §§ 49.21--49.23 (relating to prohibited conduct; former sexual partners as clients/patients; and sexual intimacies with a former client/patient, or an immediate family member of a former client/patient), the licensed professional counselor will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective action.
[Pa.B. Doc. No. 06-1542. Filed for public inspection August 11, 2006, 9:00 a.m.]
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