PROPOSED RULEMAKING
STATE BOARD
OF MEDICINE
[49 PA. CODE CH. 16]
Sexual Misconduct
[31 Pa.B. 6453] The State Board of Medicine (Board) proposes to adopt § 16.110 (relating to sexual misconduct) to read as set forth in Annex A.
Effective Date
The proposed regulation will be effective upon final-form publication as in the Pennsylvania Bulletin.
Statutory Authority
Under sections 8 and 41(8) of the Medical Practice Act of 1985 (63 P. S. §§ 422.8 and 422.41(8)), the Board has authority to establish standards of professional conduct for Board regulated practitioners under its jurisdiction. These individuals include physicians, physician assistants, nurse midwives, certified registered nurse practitioners (jointly regulated with the State Board of Nursing), respiratory care practitioners, drugless therapists and acupuncturists. The proposed regulation identifies when sexual contact by Board regulated practitioners with patients, and under certain circumstances, immediate family members of patients, will be deemed unprofessional conduct.
Background and Purpose
It should be axiomatic that it is unprofessional conduct for a health care practitioner to engage in sexual contact with patients. Past decisions of the Board upheld by the Commonwealth Court, the Code of Medical Ethics, as published by the American Medical Association and responsible professional publications addressing the issue denounce sexual contact between practitioner and patient. Nevertheless, complaints are filed each year by consumers who have been harmed by Board regulated practitioners who engage in this conduct.
Description of Proposed Regulation
The proposed regulation seeks to better protect patients by providing guidance to the profession and the public as to prohibited conduct relating to sexual contact between practitioners and patients. The proposed regulation would prohibit any sexual contact between a Board regulated practitioner and a current patient. The proposed regulation would further prohibit any sexual contact between a Board regulated practitioner and a former patient prior to the 2-year anniversary of the termination of the professional relationship when the Board regulated practitioner has been involved with the management or treatment of a patient for a mental health disorder. This 2-year period was developed from professional literature which indicates that an imbalance of power between health care practitioners and patients continues after the professional relationship ends.
The proposed regulation would also prohibit sexual exploitation by a Board regulated practitioner of a current or former patient or immediate family member of a patient. ''Sexual exploitation'' is defined by the proposed regulation as sexual behavior that uses the trust, knowledge, emotions or influence derived from the professional relationship. The Board believes that it is appropriate to protect immediate family members from sexual exploitation by Board regulated practitioners because immediate family members are often as vulnerable as the patients.
The proposed regulation would also provide that Board regulated practitioners who engage in prohibited sexual contact with patients or former 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 proposed regulation would also provide that patient consent will not be considered a defense to disciplinary action in these cases. The imbalance of power inherent in the health care practitioner-patient relationships not only serves as the basis for the prohibition but also undermines the patient's ability to consent to the sexual contact as an equal. Indeed, the Board's experience in adjudicating these cases has repeatedly demonstrated the reality of the inherent imbalance of the relationship and the patient's inability to give meaningful consent to sexual contact.
Fiscal Impact and Paperwork Requirements
The proposed regulation should have no fiscal impact on the Commonwealth or its political subdivisions. Likewise, the proposed regulation 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.
Compliance with Executive Order 1996-l, Regulatory Review and Promulgation.
In compliance with Executive Order 1996-1, the Board extended an invitation to comment on early drafts of the proposed regulation to numerous parties who have indicated an interest in the Board's regulatory activities. The list of these persons is available upon request from the contact person. Only the Pennsylvania Medical Society (PMS) commented on the early version. PMS agreed that sexual exploitation of patients is improper and should subject the Board regulated practitioner to disciplinary action. PMS was concerned that innocent behavior may be prohibited by the proposed regulation and only the issue of exploitation should be addressed. PMS suggested that the Board retain § 16.110(a), (e) and (f) and delete § 16.110(b), (c) and (d). The Board disagrees, believing that § 16.110(b), (c) and (d) are necessary to address the inherent imbalance of power between Board regulated practitioners and patients, vulnerable former patients and immediate family members of patients.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on November 7, 2001, the Board submitted a copy of the proposed regulation to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee. In addition to submitting the proposed regulation, the Board has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed regulation, it will notify the Board within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed regulation to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to publication of the final-form rulemaking, by the Board, the General Assembly and the Governor of objections raised.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed regulation to Amy L. Nelson, Counsel, State Board of Medicine, 116 Pine Street, P. O. Box 2649, Harrisburg, PA 17105-2649, within 30 days of publication of this proposed rulemaking.
CHARLES D. HUMMER, Jr., M.D.,
ChairpersonFiscal Note: 16A-497. 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 16. STATE BOARD OF MEDICINE--GENERAL PROVISIONS
Subchapter H. SEXUAL MISCONDUCT § 16.110. Sexual misconduct.
(a) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Immediate family member--A parent or guardian, child, sibling, spouse or other family member with whom a patient resides.
Sexual behavior--Any sexual conduct which is non-diagnostic and nontherapeutic; it may be verbal or physical and may include expressions of thoughts and feelings or gestures that are sexual in nature or that reasonably may be construed by a patient as sexual in nature.
Sexual exploitation--Any sexual behavior that uses trust, knowledge, emotions or influence derived from the professional relationship.
(b) Sexual exploitation. Sexual exploitation by a Board regulated practitioner of a current or former patient, or of an immediate family member of a patient, constitutes unprofessional conduct, is prohibited, and subjects the practitioner to disciplinary action.
(c) Current patients. Sexual behavior that occurs with a current patient constitutes unprofessional conduct, is prohibited and subjects the practitioner to disciplinary action.
(d) Mental health patients. When the practitioner is involved with the management or treatment of a patient for a mental health disorder, sexual behavior with that former patient which occurs prior to the 2-year anniversary of the termination of the professional relationship constitutes unprofessional conduct, is prohibited and subjects the practitioner to disciplinary action.
(e) 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 or corrective actions.
(f) Consent. Consent is not a defense to conduct prohibited by this section.
[Pa.B. Doc. No. 01-2104. Filed for public inspection November 21, 2001, 9:00 a.m.]
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