RULES AND REGULATIONS
Title 49--PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF DENTISTRY
[ 49 PA. CODE CH. 33 ]
Sexual Misconduct
[38 Pa.B. 6279]
[Saturday, November 15, 2008]The State Board of Dentistry (Board) hereby amends § 33.1 (relating to definitions) and adopts § 33.211a (relating to sexual misconduct), to read as set forth in Annex A.
Effective Date
The final-form regulations will be effective upon publication as final-form rulemaking 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, public health dental hygiene practitioners and expanded function dental assistants. These regulations define sexual misconduct and provide that sexual misconduct with a current patient is subject to disciplinary action under sections 4.1(a)(8) and 10.1 of the Dental Law (63 P. S. §§ 123.1(a)(8) and 129.1).
Background and Purpose
It should be axiomatic that it is unprofessional conduct for Board-regulated practitioners to engage in sexual misconduct with their patients. Past decisions of the Board, the Code of Professional Conduct of the American Dental Association and responsible professional publications addressing the issue denounce sexual exploitation of a patient by a practitioner. These regulations are intended to make it clear that sexual misconduct with a current patient constitutes unprofessional conduct and will subject a practitioner to disciplinary action.
The final-form regulations also provide that Board- regulated practitioners who engage in prohibited sexual conduct with patients will not be eligible for placement in the Board's impaired professional program in lieu of disciplinary or corrective actions. The impaired professional program is unable to effectively monitor Board- regulated practitioners who have engaged in sexual misconduct.
The final-form regulations also provide that patient consent will not be considered a defense to disciplinary action in these cases and provides an exception for conduct between a Board-regulated practitioner and that Board-regulated practitioner's spouse or person cohabitating with the Board-regulated practitioner.
Summary of Comments to Proposed Rulemaking and Responses to Comments
Notice of proposed rulemaking was published at 36 Pa.B. 6409 (October 21, 2006). During the public comment period, the Board received comments from the Pennsylvania Dental Association (PDA). In addition, as part of their review under the Regulatory Review Act, the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC) submitted comments. Subsequently, the Pennsylvania Dental Hygienists' Association (PDHA) submitted a letter responding to IRRC's comments. The following represents a summary of the comments received and the Board's response.
Comments from the Pennsylvania Dental Association:
The PDA suggested that these regulations ''would drastically change the supervisory responsibilities a dentist must have over a hygienist or expanded function dental assistant (EFDA).'' The PDA's position is that these regulations would force a dentist to supervise the private relationships of his auxiliary and that dentists may be forced to terminate an employee and risk legal action in response, or terminate the patient, which may result in abandonment or other ethical issues. Further, PDA opined that there does not appear to be a legitimate rationale for including the auxiliary personnel in this prohibition and strongly recommended that the regulations for sexual misconduct do not include auxiliary staff.
The Board does not believe the final-form regulations would impose any additional burden on dentists with regard to supervising the private relationships of staff. The final-form regulations, as drafted, state that the Board-regulated practitioner would be subject to discipline for his own conduct. There is nothing in the final-form regulations that make the dentist responsible for the conduct of his staff in this regard. The final-form regulations are not intended to ''force'' dentists to take any particular action if a staff member is found in violation. The Board believes that any dental professional regulated by the Board should be subject to these final-form regulations. However, in the amendments to the final-form rulemaking, the Board has eliminated ''auxiliary staff'' from the definition of ''Board-regulated practitioner'' so that the regulations would only apply to those persons holding a license or certificate issued by the Board.
The PDA also objected to the clause that eliminates consent as a defense to a disciplinary proceeding under this section. In its place, the PDA would prefer a provision that requires a higher standard of proof to show that the relationship was undertaken with consent from both parties. In addition, the PDA believes that a clause eliminating consent as a consideration potentially violates the Board-regulated practitioner's and patient's constitutional rights to free association. Finally, the PDA points out that while it could be argued that a licensed professional may waive this right as a requirement for his license, the patient does not waive this right, and therefore should not be denied the right to a consensual relationship.
The Board notes that most of the regulations relating to sexual misconduct by a health-care practitioner promulgated by other health-related boards within the Bureau of Professional and Occupational Affairs contain a provision eliminating consent as a defense. See, for example regulations of the State Board of Medicine; State Board of Osteopathic Medicine; State Board of Physical Therapy; State Board of Psychology and State Board of Social Workers, Marriage and Family Therapists and Professional Counselors in 49 Pa. Code §§ 16.110(e), 25.216(e), 40.302(a), 41.84(a), 47.64(b), 48.24(b) and 49.24(b). To date, none of these regulations have been challenged on this basis. The Board does not believe that this provision would necessarily violate anyone's constitutional right to free association. If a Board-regulated practitioner and a current patient want to engage in a consensual sexual relationship, the practitioner-patient relationship must end. Either the patient finds another dental practice, with or without the assistance of the Board-regulated practitioner, or they simply end the practitioner-patient relationship and after 3 months, by definition, the person is no longer considered a ''current patient.'' The Board is of the opinion that sexual relationships with current patients could impair Board-regulated practitioners' professional judgment or risk the possibility of exploiting the confidence placed in them by a patient. Therefore, it is a reasonable exercise of the Board's authority to prohibit sexual misconduct.
The PDA also complained that the regulations, if enacted, may leave a practitioner liable for patient abandonment. The PDA points out that the Board's regulation in § 33.211(a)(4) (relating to unprofessional conduct) provides that it is unprofessional conduct to ''withdraw dental services after a dentist-patient relationship has been established so that the patient is unable to obtain necessary dental care in a timely manner.'' Thus, the PDA opined that if a dentist refers a patient to another practitioner because of a consensual relationship, or if the dentist refuses to treat the patient altogether, it is not unreasonable to expect a vindictive patient to accuse the dentist of unprofessional conduct for patient abandonment. Therefore, the PDA believes that these two provisions, one prohibiting sexual conduct with a current patient, and one prohibiting patient abandonment, are contradictory.
The Board does not find these two provisions inherently contradictory. Again, if a Board-regulated practitioner wishes to engage in a consensual sexual relationship with a patient, the professional relationship must end. But it must end in a manner to assure that the patient is not ''unable to obtain necessary dental care in a timely manner.'' That is, the patient must be referred to another dental practice where the patient may obtain necessary dental care. In addition, the fact that vindictive patients may file complaints against Board-regulated practitioners is another good reason not to engage in sexual relations with patients.
The PDA also pointed out that while it may be relatively easy for a dentist in a heavily populated area to refer a patient to a colleague in the immediate vicinity, it may be ''nearly impossible'' for a dentist in rural Pennsylvania to refer. In those areas of the State, PDA stated, it is not uncommon for the nearest dentist to be located over 50 miles away. The Board acknowledges that there are some underserved areas in this Commonwealth. However, the fact remains that the Board does not believe dentists or other Board-regulated professionals should be engaging in sexual relations with current patients, with the exception of a spouse or person with whom the Board-regulated practitioner is cohabitating. The rule applies equally to dentists in heavily populated areas as well as those in rural areas. It is possible for a dentist in a rural area to comply with the rulemaking. If it is truly ''impossible'' to arrange for alternate care, the dentist must refrain from engaging in sexual conduct with his patient.
Finally, the PDA asked that the requirement to transfer care to another dental office be clarified because as written, it is unclear whether dentists who practice through separate corporate structures, but share office space would constitute a permissible transfer. The Board is less concerned with physical office space than it is with the potential for exploitation of patients. However, to address this concern, the Board amended the final-form rulemaking to provide that a practitioner-patient relationship may be terminated by transferring the patient to another dental practice.
Comments of the House Professional Licensure Committee
The HPLC thanked the Board for its efforts to address sexual misconduct on the part of dentists, dental hygienists and expanded function dental assistants because in the HPLC's opinion, ''sexual conduct between a patient and a health care practitioner is per se exploitative.'' However, the HPLC submitted a number of comments for the Board's consideration.
The HPLC asked the Board to address the issue of ''significant others,'' which the HPLC believes is not fully addressed. The Board's rulemaking provides a rule that the Board believes is enforceable. In general, that rule is: A Board-regulated practitioner may not engage in sexual conduct with a current patient, unless that patient is a spouse or person with which the Board-regulated practitioner cohabitates. The Board did not address other types of relationships because the Board determined that if the regulations excluded more casual relationships, it would weaken the regulation and make it more difficult to enforce. Marriage and cohabitation are capable of objective proof. The Board intended only to exclude sexual relations between persons who are married or living together in an intimate relationship. To that degree, the Board believes it has addressed the HPLC's concerns about ''significant others.''
The HPLC also asked the Board again to consider whether to define sexual misconduct by providing specific examples of prohibited conduct. The HPLC refers the Board to regulations of the State Board of Social Workers, Marriage and Family Therapists and Professional Counselors and the regulations of the Board of Dental Examiners in Maryland, which both provide specific examples of prohibited conduct, such as 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; nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature; masturbating in front of a patient; sexual invitations; taking photographs or videotapes of a patient for sexual purposes; and the use of a drug on a patient for the purpose of sexual behavior. The HPLC feared that the Board's definition of sexual misconduct lacks specificity and may not put practitioners on notice of what conduct is prohibited, as due process requires. Respectfully, the Board disagrees. The rule contained in the regulations is a simple one: do not engage in sexual conduct with a current patient. It also acknowledges that there is a continuum of sexual conduct that may consist of words, gestures, expressions or actions. The Board believes the standard provided by the final-form rulemaking is sufficient to provide adequate notice to comport to the requirements of due process. The Board declines to attempt to draft a ''laundry list'' of examples that constitute ''sexual misconduct.'' It has been the Board's experience that courts construing those lists often find behaviors not expressly contained in the list to be acceptable. The Board does not wish to inadvertently approve sexual misconduct by omission. It would be virtually impossible to write regulations for sexual misconduct that define every possible prohibited behavior; or to exclude every possible innocent behavior. The Board believes that any of the examples provided previously would clearly be considered sexual misconduct under the regulations, without the need to specifically enumerate them. The Board believes the proposed rulemaking is flexible enough to cover most situations, without being overly burdensome.
The HPLC asked the Board to consider placing the definitions in § 33.1 (relating to definitions) and to consider using the defined term ''Board-regulated practitioner'' throughout the regulations. Further, the HPLC noted that the definition of ''Board-regulated practitioner'' includes auxiliary personnel and asks whether the regulations should extend to auxiliary personnel. The Board has responded by moving the definitions to § 33.1, utilizing the term ''Board-regulated practitioner'' throughout the final-form rulemaking and by deleting the reference to auxiliary personnel from the definition. In addition, the Board has added ''public health dental hygiene practitioner'' to the definition of ''Board-regulated practitioner'' in response to Act 51 of 2007, which created a new category of dental professional regulated by the Board.
The HPLC pointed out that the Board already has existing regulations prohibiting ''sexual abuse'' of a patient and asked the Board to harmonize this rulemaking with the existing regulations. While sexual abuse of a patient would always constitute sexual misconduct, sexual misconduct would not necessarily always rise to the level of sexual abuse. The Board determined not to amend the existing regulations to provide the prosecutors the flexibility to charge sexual abuse as a separate, more serious, violation in those cases where it is merited.
The HPLC asked the Board to consider adding language which would speak to the inadmissibility of the patient's past sexual conduct as evidence in disciplinary proceedings, noting the existence of that language in the regulations of the State Board of Psychology. The Board considered this comment and declined to add the language to the regulations. The Board notes that the Pennsylvania Rules of Evidence do not contain a provision making evidence of sexual conduct generally inadmissible in civil proceedings, but that where objectionable on other grounds, such evidence may be excluded.
Comments from the Independent Regulatory Review Commission
IRRC raised four concerns with the proposed rulemaking. First, like the HPLC, IRRC noted that the definitions should be moved to § 33.1. The Board has made this revision. Second, IRRC noted that the definition of ''sexual misconduct'' included two variations of the same word. The Board has addressed this comment by amending the definition of ''sexual misconduct'' to mean any conduct with a current patient, including words, gestures or expressions, actions or any combination thereof, which is sexual in nature or which may be construed by a reasonable person as sexual in nature. Next, IRRC also objected to the use of the term ''practitioner'' throughout the rulemaking instead of the defined term ''Board-regulated practitioner.'' The Board has amended the final-form rulemaking to use the defined term throughout. Finally, IRRC asked whether the Board intended the rulemaking to apply to auxiliary personnel. As noted previously, the Board has addressed this comment by amending the definition of ''Board-regulated practitioner'' to exclude auxiliary personnel.
Comments from the Pennsylvania Dental Hygienists' Association
In light of IRRC's comment regarding whether the rulemaking is intended to apply to auxiliary personnel, PDHA recommended that the Board amend the definition of ''Board-regulated practitioner'' to exclude auxiliary personnel noting that the Board does not issue licenses or permits to auxiliary personnel and has no statutory authority to discipline auxiliary personnel. As noted previously, the Board has made this amendment to the final-form rulemaking.
Fiscal Impact and Paperwork Requirements
The amendments should have no fiscal impact on the Commonwealth or its political subdivisions. Likewise, the amendments 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)), the Board submitted a copy of the notice of proposed rulemaking, published at 36 Pa.B. 6409, to IRRC, the SCP/PLC and the HPLC for review and comment.
In compliance with section 5(c) of the Regulatory Review Act, the Board also provided IRRC, the SCP/PLC and the HPLC with copies of comments received as well as other documents when requested. In preparing the final-form regulations, the Board has considered the comments received from IRRC, the HPLC and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), the final-form regulations were approved by the HPLC on September 17, 2008, and deemed approved by the SCP/PLC on October 15, 2008. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 16, 2008, and approved the final-form regulations.
Contact Person
Further information may be obtained by contacting Christopher Grovich, Board Counsel, State Board of Dentistry, P. O. Box 2649, Harrisburg, PA 17105-2649.
Findings
The State Board of Dentistry 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 the final-form rulemaking do not enlarge the purpose of proposed rulemaking published at 36 Pa.B. 6409.
(4) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing act identified in this Preamble.
Order
The State Board of Dentistry, acting under its authorizing statutes, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 33, are amended by amending § 33.1 and adding § 33.211a to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(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.
JOHN V. REITZ, D.D.S.,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 38 Pa.B. 6123 (November 1, 2008).)
Fiscal Note: Fiscal Note 16A-4618 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 33. STATE BOARD OF DENTISTRY
Subchapter A. GENERAL PROVISIONS § 33.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Board-regulated practitioner--A dentist, dental hygienist, public health dental hygiene practitioner or expanded function dental assistant.
* * * * * Current patient--
(i) A person that is in the process of dental treatment with a Board-regulated practitioner or who has been treated by the Board-regulated practitioner within the previous 3 months.
(ii) The term does not include a patient who has terminated the Board-regulated practitioner/patient relationship by being accepted as a patient of record at another dental practice.
* * * * * Sexual misconduct--Any conduct with a current patient, including words, gestures or expressions, actions or any combination thereof, which is sexual in nature, or which may be construed by a reasonable person as sexual in nature.
Subchapter C. MINIMUM STANDARDS OF CONDUCT AND PRACTICE § 33.211a. Sexual misconduct.
(a) Disciplinary action authorized. 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, a public health dental hygiene practitioner or an expanded function dental assistant (EFDA), and subjects the Board-regulated practitioner to disciplinary action under section 4.1(a)(8) and section 10.1 of the act (63 P. S. § 129.1).
(b) Impaired professional program. A Board-regulated 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.
(c) Consent. Consent is not a defense to conduct prohibited by this section.
(d) Exclusion. This section does not apply to conduct between a Board-regulated practitioner and the Board-regulated practitioner's spouse or a person cohabitating with the Board-regulated practitioner.
[Pa.B. Doc. No. 08-2059. Filed for public inspection November 14, 2008, 9:00 a.m.]
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