RULES AND REGULATIONS
Title 49--PROFESSIONAL AND VOCATIONAL STANDARDS
STATE BOARD OF PHYSICAL THERAPY
[49 PA. CODE CH. 40]
Sexual Misconduct
[32 Pa.B. 3942] The State Board of Physical Therapy (Board) adopts regulations regarding sexual misconduct by adding §§ 40.301--40.304 to read as set forth in Annex A.
A. Effective Date
The final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
B. Statutory Authority
The final-form rulemaking is adopted by the Board under the authority of section 3(a) of the Physical Therapy Practice Act (act) (63 P. S. § 1303(a)).
C. Background and Purpose
The final-form rulemaking was proposed against a background of increasing complaints of sexual misconduct against health care professionals who are licensed by the Bureau of Professional and Occupational Affairs. This final-form rulemaking addresses issues concerning sexual misconduct in the context of the provision of physical therapy services.
The final-form rulemaking is intended to protect consumers of physical therapy services and to provide guidance to the profession by defining terms such as ''patient,'' ''professional relationship,'' ''sexual impropriety'' and ''sexual violation.'' The final-form rulemaking guides licensees by informing them that conduct defined as a sexual violation or sexual impropriety with a patient during the course of a professional relationship violates standards of professional conduct for physical therapists (PT) and physical therapist assistants (PTA). The final-form rulemaking guides PTs and PTAs by informing them that their professional relationship with a patient exists for a time period beginning with the first professional contact or consultation and ends upon discharge from or discontinuance of services. The final-form rulemaking notifies PTs and PTAs that the consent of a patient to a sexual impropriety or violation cannot be a defense in a disciplinary proceeding before the Board and that a PT or PTA who engages in conduct prohibited by the final-form rulemaking will not be eligible for placement into an impaired professional program under the act.
D. Summary of Comments and Responses on Proposed Rulemaking
Notice of proposed rulemaking was published at 31 Pa.B. 1470 (March 17, 2001). The Board received comments from the Independent Regulatory Review Commission (IRRC), the House Professional Licensure Committee (HPLC) and one public commentator, the Pennsylvania Physical Therapy Association (PPTA). The Senate Consumer Protection and Professional Licensure Committee did not submit comments. Responses to these comments are organized by subject as follows.
Section 40.301. Definitions.
Both the HPLC and IRRC recommended that the term ''immediate family member'' found in the definition of ''patient'' should also be defined. However, on further review, it appears that excluding the PT's other family members from the definition of ''patient'' seems unnecessary because the only family member with whom a PT may appropriately engage in sexual activities is the PT's spouse. To improve clarity, the Board has deleted the term ''immediate family member'' from the definition of ''patient.''
IRRC also commented that the definition of ''sexual impropriety'' contained the requirement that discussion of a patient's sexual practices and preferences must be fully documented in the patient's chart. IRRC noted that a substantive requirement should not be included in a definition and that furthermore, the sentence is unnecessary because the documentation requirement is contained elsewhere in § 40.302(3) (relating to procedural matters). The Board agreed with IRRC's comment and deleted this sentence from the definition of ''sexual impropriety'' under subsection (iv).
The PPTA recommended that the definition of ''professional relationship'' be expanded to include language which clearly emphasizes the responsibility of the physical therapist to inform the patient of the purpose and nature of any examination or treatment technique, or both. The Board decided against adding this language for two reasons. First, it is a substantive requirement that does not belong in a definition. Second, § 40.302(3) already states that to apply the defense that the conduct complained of was necessary or appropriate to the treatment of any patient, it must be demonstrated that the conduct in question is relevant to the patient's condition or diagnosis. It is further required that appropriate discussions of sexual matters between a PT, a PTA and a patient shall be fully documented in patient records. Accordingly, the Board believes that this concern is adequately addressed under § 40.302(3).
On December 10, 2001, Governor Schweiker signed into law the act of December 10, 2001 (P. L. 859, No. 92) (Act 92) which gave the State Boards of Medicine and Osteopathic Medicine jurisdiction over certified athletic trainers (CATs) and repealed provisions of the act that were inconsistent with Act 92. Accordingly, since the Board no longer oversees CATs, it has deleted all references to CATs in the final-form rulemaking.
Section 40.302. Procedural matters.
IRRC questioned the intent of § 40.302(2) which permits the Board to consider sexual relationships between the PT or the PTA and the patient occurring prior to the professional relationship. IRRC questioned whether a sexual relationship occurring prior to the professional relationship could be used as a defense to sexual misconduct. IRRC also questioned whether this provision is in direct conflict with paragraph (1), which provides that consent is not a defense to any disciplinary charge for violation of the act or Chapter 40 (relating to State Board of Physical Therapy). The intent of the Board is that consent of a patient to any sexual impropriety or violation may not be used as a defense. However, evidence of a sexual relationship that occurred between the practitioner and the patient prior to the initiation of the professional relationship may be considered by the Board in mitigation of a sanction. The Board does not believe that these provisions are in conflict with each other. The Board believes the proposed amendments adequately reflect the Board's intent and, therefore, no change in this final-form rulemaking has been made.
Section 40.304. Disciplinary action.
Both the HPLC and IRRC recommended that the word ''sexual'' should be inserted before the word ''violation'' in the first sentence of § 40.304. The Board has adopted this recommendation by revising the final-form rulemaking. The Board has also inserted the word ''sexual'' in § 40.302(1).
E. Compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation''
The Board reviewed this final-form rulemaking and considered its purpose and likely impact on the public and the regulated population under the directives of Executive Order 1996-1.
F. Fiscal Impact and Paperwork Requirements
There should be no adverse fiscal impact or additional paperwork requirements incurred by the Board, political divisions or the private sector.
G. Sunset Date
The Board continuously monitors its regulations. Therefore, no sunset date has been assigned.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 16, 2001, the Board submitted a copy of the notice of proposed rulemaking, published at 31 Pa.B. 1470, to IRRC and to the Chairpersons of the HPLC and the Senate Consumer Protection and Professional Licensure Committee for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Board has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on May 21, 2002, this final-form rulemaking was deemed approved by the Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 30, 2002, and approved the final-form rulemaking.
I. Contact Person
Interested persons may obtain information regarding the final-form rulemaking by writing to Robert Kline, Board Administrator, State Board of Physical Therapy, P. O. Box 2649, 116 Pine Street, Harrisburg, PA 17105-2649.
J. 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 at 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 final-form rulemaking does not enlarge the purpose of proposed rulemaking published at 31 Pa.B. 1470.
(4) The final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing act identified in Part B of this preamble.
K. Order.
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 40, are amended by adding §§ 40.301--40.304 to read as set forth in Annex A.
(b) The Board shall submit this order and annex to the Office of General Counsel and to 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 upon publication in the Pennsylvania Bulletin.
JAMES J. IRRGANG,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 32 Pa.B. 2954 (June 15, 2002).)
Fiscal Note: Fiscal Note 16A-656 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 40. STATE BOARD OF
PHYSICAL THERAPY
Subchapter E. SEXUAL MISCONDUCT Sec.
40.301. Definitions. 40.302. Procedural matters. 40.303. Impaired professional program. 40.304. Disciplinary action. § 40.301. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Patient (includes resident and client)--A person, other than the spouse of the physical therapist or physical therapist assistant, who receives professional services from the physical therapist or physical therapist assistant regardless of whether the services are provided for remuneration.
Professional relationship-- For a physical therapist or physical therapist assistant, the relationship shall be deemed to exist for a period of time beginning with the first professional contact or consultation between a physical therapist or physical therapist assistant and a patient and ending upon discharge from or discontinuance of services provided by the physical therapist or physical therapist assistant.
Sexual impropriety--The term includes the following offenses:
(i) Making sexually demeaning or sexually suggestive comments about or to a patient, including comments about a patient's body or undergarments.
(ii) Unnecessarily exposing a patient's body or watching a patient dress or undress, unless for therapeutic purposes or the patient specifically requests assistance.
(iii) Examining or touching genitals without the use of gloves when performing an otherwise appropriate examination.
(iv) Discussing or commenting on a patient's potential sexual performance or requesting details of a patient's sexual history or preferences during an examination or consultation, except when the examination or consultation is pertinent to the issue of sexual function or dysfunction or reproductive health care.
(v) Soliciting a date from a patient.
(vi) Volunteering information to a patient about one's sexual problems, preferences or fantasies.
Sexual violation--The term includes the following offenses:
(i) Sexual intercourse between a physical therapist or physical therapist assistant and a patient during the professional relationship.
(ii) Genital to genital contact between a physical therapist or physical therapist assistant and a patient during the professional relationship.
(iii) Oral to genital contact between a physical therapist or physical therapist assistant and a patient during the professional relationship.
(iv) Touching breasts, the genitals, or any other part of the body of a patient in a sexual, erotic or romantic manner. Touching for the purpose of an appropriate examination or treatment does not constitute a sexual violation.
(v) Encouraging a patient to masturbate in the presence of the physical therapist or physical therapist assistant or masturbating while a patient is present.
(vi) Providing or offering to provide treatment in exchange for sexual favors.
§ 40.302. Procedural matters.
(a) The consent of the patient to any sexual impropriety or sexual violation is not a defense to any disciplinary charge for violation of the act or this chapter.
(b) Evidence of specific instances, opinion evidence or reputation evidence of a patient's past sexual conduct is not admissible in proceedings brought under §§ 40.52 and 40.181 (relating to unprofessional conduct; physical therapists; and refusal, suspension or revocation of registration). The Board may consider sexual relationships between the physical therapist or the physical therapist assistant and the patient occurring prior to the professional relationship.
(c) A physical therapist or the physical therapist assistant who attempts to raise as a defense an argument that conduct prohibited as a sexual violation or sexual impropriety was necessary or appropriate to the treatment of any patient shall be required to demonstrate the relevancy of the conduct in question to the patient's condition or diagnosis. Appropriate discussions of sexual matters between a physical therapist or the physical therapist assistant and a patient shall be fully documented in patient records.
§ 40.303. Impaired professional program.
When the Board is empowered to take disciplinary or corrective action against a physical therapist or the physical therapist assistant for conduct defined as a sexual violation or sexual impropriety, the physical therapist or physical therapist assistant will not be eligible for placement into an impaired professional program under section 13 of the act (63 P. S. § 1313).
§ 40.304. Disciplinary action.
A physical therapist or physical therapist assistant who engages in sexual impropriety or sexual violation as defined in § 40.301 (relating to definitions) will be subject to disciplinary action under §§ 40.52 and 40.181(a)(6) (relating to unprofessional conduct; physical therapists; and refusal, suspension or revocation of registration) and section 11 of the act (63 P. S. § 1311).
[Pa.B. Doc. No. 02-1373. Filed for public inspection August 9, 2002, 9:00 a.m.]
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