PROPOSED RULEMAKING
[49 PA. CODE CH. 33]
Sexual Misconduct
[32 Pa.B. 5284] The State Board of Dentistry (Board) proposes to add § 33.211a (relating to sexual misconduct) to read as set forth in Annex A. This proposed rulemaking identifies when sexual exploitation by Board regulated practitioners with patients will be deemed unprofessional conduct.
Effective Date
The proposed rulemaking will be effective upon publication of 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 and expanded function dental assistants.
Background and Purpose
It should be axiomatic that it is unprofessional conduct for a Board regulated practitioner to sexually exploit patients. Past decisions of the Board, the draft code of ethics committee of the American Dental Association and responsible professional publications addressing the issue denounce sexual exploitation of a patient by a practitioner. However, complaints are filed each year by consumers who have been harmed by Board regulated practitioners who engage in this conduct.
Description of Proposed Amendments
The proposed rulemaking would add § 33.211a to make sexual misconduct an unprofessional conduct.
The purpose of the proposed rulemaking is to better protect patients by providing guidance to the profession and the public as to prohibited sexual conduct between practitioners and patients. The proposed rulemaking would prohibit sexual exploitation by a Board regulated practitioner of a current patient. ''Sexual exploitation'' is defined by § 33.211a as sexual behavior with a current patient that uses trust, knowledge, emotions or influence derived from the professional relationship.
The proposed rulemaking provides 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 proposed rulemaking 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 relationship not only serves as the basis for the prohibition but also undermines the patient's ability to consent to sexual behavior as an equal when trust, knowledge, emotions or influence derived from the professional relationship are used.
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.
Compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation''
In compliance with Executive Order 1996-1, the Board extended an invitation to comment on early drafts of this proposed rulemaking 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 listed in this Preamble. Two comments were received and considered by the Board at the March 15, 2002, Board meeting.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 10, 2002, the Board submitted a copy of this proposed rulemaking 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 rulemaking, 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. 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 rulemaking, 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 rulemaking to which an objection is made. 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 objections raised.
Public Comment
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Deborah B. Eskin, Counsel, State Board of Dentistry, 116 Pine Street, P. O. Box 2649, Harrisburg, PA 17105-2649, within 30 days of publication of this proposed rulemaking.
NORBERT O. GANNON, D.D.S.,
ChairpersonFiscal Note: 16A-4613. 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.
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, dental hygienist and EFDA as follows:
(1) Definitions. The following words and terms, when used in the section, have the following meanings, unless the context clearly indicates otherwise:
Sexual behavior--Any sexual conduct that has no diagnostic or therapeutic purpose, including words, actions or any combination thereof which are or are intended to be, sexual in nature, or which may be construed by a reasonable person as sexual in nature.
Sexual exploitation--Any sexual behavior, with a current patient, that uses trust, knowledge, emotions or influence derived from the professional relationship.
(2) Disciplinary action. Sexual exploitation by a Board regulated practitioner of a current patient constitutes unprofessional conduct, is prohibited, and subjects the practitioner to disciplinary action.
(3) 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.
(4) Consent. Consent is not a defense to conduct prohibited by this section.
(5) Exclusion. This section does not apply to a spouse or equivalent domestic partner.
[Pa.B. Doc. No. 02-1884. Filed for public inspection October 25, 2002, 9:00 a.m.]
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