STATE BOARD OF DENTISTRY
[49 PA. CODE CH. 33]
Sexual Misconduct
[36 Pa.B. 6409]
[Saturday, October 21, 2006]The State Board of Dentistry (Board) proposes to add § 33.211a (relating to sexual misconduct) to read as set forth in Annex A.
Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin.
Statutory Authority
Under section 3(c), (d), (d.1) and (o) of the Dental Law (63 P. S. § 122(c), (d), (d.1) and (o)), the Board has authority to establish standards of professional conduct for Board regulated practitioners under its jurisdiction. These individuals include dentists, dental hygienists and expanded function dental assistants (EFDA).
Background and Purpose
Over the past few years, the health-related boards within the Bureau of Professional and Occupational Affairs have been developing regulations regarding sexual misconduct. The purpose of this proposed rulemaking is to protect consumers of dental services and provide clear guidance to practitioners and the public that sexual misconduct by a dentist, dental hygienist or EFDA is prohibited.
The Board previously published a proposed rulemaking regarding sexual misconduct at 32 Pa.B. 5284 (October 26, 2002). The earlier version of the rulemaking prohibited sexual behavior with and sexual exploitation of patients. At that time, it was suggested by commentators that the definitions were somewhat vague and that the Board consider providing specific examples of prohibited conduct. It has been the Board's experience that when specific examples are used, courts interpreting the regulations often deem acceptable those situations not included in a list such as this. The Board does not wish to inadvertently approve sexual misconduct by omission, and therefore, chose not to provide specific examples of prohibited conduct. It would be virtually impossible to write regulations for sexual misconduct that clearly define every possible prohibited behavior and every possible innocent behavior. The Board believes the proposed rulemaking is flexible enough to cover most situations without being overly burdensome.
Description of Proposed Rulemaking
Proposed § 33.211a (relating to sexual misconduct) makes it clear that sexual misconduct constitutes unprofessional conduct and subjects the practitioner to disciplinary action.
The purpose of proposed § 33.211a is to better protect patients by providing guidance to the profession and the public that sexual conduct between practitioners and their current patients constitutes unprofessional conduct. This proposed section defines ''sexual misconduct'' as ''[a]ny sexual conduct with a current patient, including words, gestures or expressions, actions or any combination thereof, which are sexual in nature, or which may be construed by a reasonable person as sexual in nature.''
Proposed § 33.211a also defines ''current patient'' as one ''that is in the process of dental treatment with a practitioner or who has been treated by the practitioner within the previous 3 months.'' The definition specifically excludes patients who affirmatively terminate the practitioner-patient relationship by becoming a patient of record at another dental office.
This proposed rulemaking further provides that Board regulated practitioners who engage in sexual misconduct with current 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 Board regulated practitioners who have engaged in sexual misconduct.
The proposed rulemaking also provides that patient consent is not a defense to disciplinary action in these cases and specifically excludes conduct between a practitioner and the practitioner's spouse or a person cohabitating with the practitioner. The intent is to exclude spouses and people who live together on a permanent basis. Other types of more casual relationships are not excluded.
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 cost 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 October 4, 2006, 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 must 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, suggestions or objections regarding the proposed rulemaking to Cynthia K. Montgomery, Counsel, State Board of Dentistry, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days following publication of this proposed rulemaking.
SUSAN E. CALDERBANK, D.M.D.,
ChairpersonFiscal Note: 16A-4618. 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 33. STATE BOARD OF DENTISTRY
Subchapter C. MINIMUM STANDARDS OF CONDUCT AND PRACTICE § 33.211a. Sexual misconduct.
(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Current patient--
(i) A person that is in the process of dental treatment with a practitioner or who has been treated by the practitioner within the previous 3 months.
(ii) The term does not include a patient who has terminated the practitioner-patient relationship by being accepted as a patient of record at another dental office.
Sexual misconduct--Any sexual conduct with a current patient, including words, gestures or expressions, actions or any combination thereof, which are sexual in nature, or which may be construed by a reasonable person as sexual in nature.
(b) Disciplinary action. Unprofessional conduct, as defined in section 4.1(a)(8) of the act (63 P. S. § 123.1(a)(8)), includes sexual misconduct by a dentist, a dental hygienist or an expanded function dental assistant (EFDA), and subjects the practitioner to disciplinary action under sections 4.1(a)(8) and 10.1 of the act (63 P. S. §§ 123.1(a)(8) and 129.1).
(c) Impaired professional program. A practitioner who engages in conduct prohibited by this section will not be eligible for placement into an impaired professional program in lieu of disciplinary action or correction.
(d) Consent. Consent is not a defense to conduct prohibited by this section.
(e) Exclusion. This section does not apply to conduct between a practitioner and the practitioner's spouse or a person cohabitating with the practitioner.
[Pa.B. Doc. No. 06-2060. Filed for public inspection October 20, 2006, 9:00 a.m.]
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