RULES AND REGULATIONS
STATE BOARD OF MEDICINE
[49 PA. CODE CH. 16]
Sexual Misconduct
[34 Pa.B. 40] The State Board of Medicine (Board) amends § 16.1 (relating to definitions) and adds § 16.110 (relating to sexual misconduct) 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
Under sections 8 and 41(8) of the Medical Practice Act of 1985 (act) (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, respiratory care practitioners, drugless therapists, acupuncturists and athletic trainers. The final-form rulemaking identifies when sexual contact by Board-regulated practitioners with patients, and under certain circumstances, immediate family members of patients, will be deemed unprofessional conduct.
C. Background and Purpose
The final-form rulemaking 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 final-form rulemaking prohibits any sexual contact between a Board-regulated practitioner and a current patient. The final-form rulemaking further prohibits 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 final-form rulemaking specifically exempts spouses of Board-regulated practitioners from the provisions prohibiting sexual contact with patients.
The final-form rulemaking also prohibits sexual exploitation by a Board-regulated practitioner of a current or former patient or immediate family member of a patient. ''Sexual exploitation'' is defined 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 final-form rulemaking also provides 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 final-form rulemaking also provides 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 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.
D. Summary of Comments and Responses to Proposed Rulemaking
Notice of proposed rulemaking was published at 31 Pa.B. 6453 (November 24, 2001). The Board received comments from the Independent Regulatory Review Commission (IRRC), the Pennsylvania Medical Society (PMS), Representative Kerry Benninghoff and several individuals.
IRRC commented that the rulemaking should be broken into two sections--one for definitions and one for substantive regulatory provisions. The Board incorporated this recommendation into the final-form rulemaking by moving the definitions to § 16.1. IRRC also recommended that the Board add the definition of ''Board-regulated practitioner'' to its definition section. Although this definition is included in the act, the Board accepted IRRC's suggestion and added it to the general definition section of the final-form rulemaking as well. The Board also accepted IRRC's recommendation that the definition of ''immediate family member'' clarify that the term included those related by blood or marriage. The Board chose not to adopt IRRC's recommendation to extend the final-form rulemaking's protection to ''significant others,'' as they felt that ''significant others'' are not a legally recognized, defined group of people and that inclusion would create undue vagueness to the final-form rulemaking. The Board did incorporate IRRC's suggestion that the final-form rulemaking provide a cross-reference to the statutory citation for disciplinary actions. IRRC recommended that the Board delete the phrase ''mental health disorder'' and substitute diagnoses under the Diagnostic and Statistical Manual of Mental Disorders-IV (DSM-IV). The Board chose not to make this change. There are certain ''mental health disorders'' that are not included in the DSM-IV, but which may nonetheless make an individual partially vulnerable, such as an individual suffering from anxiety, fearfulness and sadness, who is not clinically depressed.
Finally, IRRC expressed concern that the rulemaking appeared to be somewhat vague and suggested that the Board consider providing examples of prohibited conduct. It has been the Board's experience that when examples are used, situations not depicted are often deemed acceptable. The Board does not wish to inadvertently approve sexual misconduct by omission, and therefore declines IRRC's invitation to provide examples of prohibited conduct.
The PMS opined that it is impossible to write regulations for sexual misconduct that clearly define prohibited behavior without also creating the possibility of prosecution for innocent behavior. While the Board agrees that these are difficult regulations to write, it believes that sexual contact with patients and certain vulnerable family members so severely threatens public safety that an effort must be made to put physicians on further notice that the conduct is prohibited. While some practitioners are currently being prosecuted for sexual exploitation of patients, the Board feels strongly that it must be as clear as possible that a healthcare practitioner-patient relationship must never contain elements of sexual behavior. Moreover, prosecutors are routinely responsible for exercising professional judgment in regard to matters more complex than these.
Representative Benninghoff wrote in support of the proposed rulemaking, but suggested that the rulemaking be amended to specifically prohibit voyeurism. While the Board was mindful of the Representative Benninghoff's concerns, the Board finds that the current definition of sexual exploitation would permit prosecution for voyeurism.
An attorney who frequently represents physicians in disciplinary matters before the Board wrote to object to the Board's determination that a physician engaging in conduct prohibited by this section would not be eligible for the impaired professional program instead of discipline. The Board based its determination on information from peer reviewed literature and experts in the field of sexual behaviors that practitioners who engage in sexual misconduct are not impaired and are not good candidates for a monitoring program such as the Professional Health Monitoring Program.
The Governor's Policy Office recommended that the final-form rulemaking specifically exempt spouses of Board-regulated practitioners from the provisions prohibiting sexual contact with patients. The Board amended the final-form rulemaking to comply with this request.
E. Fiscal Impact and Paperwork Requirements
The final-form rulemaking should have no fiscal impact on the Commonwealth or its political subdivisions. Likewise, the final-form rulemaking should not necessitate any legal, accounting, reporting or other paperwork requirements.
F. Sunset Date
The Board continuously monitors the cost effectiveness of its regulation. Therefore, no sunset date has been assigned.
G. 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 notice of proposed rulemaking, published at 31 Pa.B. 6453, to IRRC and the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) and the House Professional Licensure Committee (HPLC) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the SCP/PLC and the HPLC were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), the final-form rulemaking was approved by the HPLC on November 18, 2003, and deemed approved by SCP/PLC on November 19, 2003. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 20, 2003, and approved the final-form rulemaking.
H. Contact Person
Further information may be obtained by contacting Amy L. Nelson, Board Counsel, State Board of Medicine, P. O. Box 2649, Harrisburg, PA 17105-2649.
I. Findings
(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 in 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) These amendments do not enlarge the purpose of proposed rulemaking published at 31 Pa.B. 6453.
(4) This final-form rulemaking is necessary and appropriate for administering and enforcing the authorizing acts identified in Part B of this preamble.
J. Order
The Board, acting under its authorizing statutes, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 16, are amended by amending § 16.1 and by adding § 16.110 to read as set forth in Annex A.
(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.
CHARLES D. HUMMER, Jr., M.D.,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 33 Pa.B. 5994 (December 6, 2003).)
Fiscal Note: Fiscal Note 16A-497 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 16. STATE BOARD OF MEDICINE--GENERAL PROVISIONS
Subchapter A. BASIC DEFINITIONS AND INFORMATION § 16.1. Definitions.
The following words and terms, when used in this chapter and Chapters 17 and 18 (relating to State Board of Medicine--medical doctors; and State Board of Medicine--practitioners other than medical doctors), have the following meanings, unless the context clearly indicates otherwise:
Accredited medical college--An institution of higher learning accredited by the Liaison Committee on Medical Education to provide courses in the arts and sciences of medicine and related subjects and empowered to grant professional and academic degrees in medicine.
Act--The Medical Practice Act of 1985 (63 P. S. §§ 422.1--422.45).
Board--The State Board of Medicine.
Board-regulated practitioner--A medical doctor, midwife, physician assistant, drugless therapist, athletic trainer, acupuncturist or an applicant for a license or certificate that the Board may issue.
Conviction--A judgment of guilt, an admission of guilt or a plea of nolo contendere.
ECFMG--The Educational Commission for Foreign Medical Graduates.
FLEX--This examination provided by the Federation of State Medical Boards of the United States, Inc., comprised of FLEX I and FLEX II, was used by the Board to test applicants for a license to practice medicine and surgery without restriction. This uniform examination was administered simultaneously in most of the states, territories and possessions of the United States.
FLEX I--The examination component of the FLEX designed to evaluate measurable aspects of knowledge and understanding of basic and clinical science principles and mechanisms underlying disease and modes of therapy. This component will be last regularly administered in December 1993.
FLEX II--The examination component of the FLEX designed to measure a core of competence involved in the diagnosis and management of selected clinical problems frequently encountered by a physician engaged in the independent practice of medicine. This component will be last regularly administered in December 1993.
Federation--The Federation of State Medical Boards of the United States, Inc.
Fifth pathway program--A program that satisfies standards equivalent to those recommended for fifth pathway programs by the Council on Medical Education of the American Medical Association, and which is recognized by the licensing authority in the state, territory or possession of the United States in which the program is physically located.
Graduate medical training--Training accredited as graduate medical education by the Accreditation Council for Graduate Medical Education or by another accrediting body recognized by the Board for the purpose of accrediting graduate medical education, or training provided by a hospital accredited by the Joint Commission on Accreditation of Hospitals which is acceptable to an American Board of a Medical Specialty towards the training it requires for the certification it issues in a medical specialty or subspecialty.
Immediate family member--A parent or guardian, child, sibling, spouse, or other family member, whether related by blood or marriage, with whom a patient resides.
NBME--The National Board of Medical Examiners of the United States, Inc.
National Boards--The examination of the National Board of Medical Examiners of the United States, Inc. NBME Part I was last administered in June 1992, NBME Part II was last administered in April 1992 and NBME Part III will be last administered in May 1994.
SPEX--Special purpose examination offered by the Federation and NBME to assist the assessment of current competence requisite for the practice of medicine and surgery by physicians who hold or have held a license in the United States or another jurisdiction.
Sexual behavior--Any sexual conduct which is nondiagnostic 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.
USMLE--The United States Medical Licensing Examination, a single, uniform examination for medical licensure consisting of three steps.
USMLE, Step 1--Assesses whether an examinee understands and can apply key concepts of basic biomedical science, with an emphasis on principles and mechanisms of health, disease and modes of therapy.
USMLE, Step 2--Assesses whether an examinee possesses the medical knowledge and understanding of clinical science considered essential for the provision of patient care under supervision, including emphasis on health promotion and disease prevention.
USMLE, Step 3--Assesses whether an examinee possesses the medical knowledge and understanding of biomedical and clinical science considered essential for the unsupervised practice of medicine.
Unaccredited medical college--An institution of higher learning which provides courses in the arts and sciences of medicine and related subjects, is empowered to grant professional and academic degrees in medicine, is listed by the World Health Organization or is otherwise recognized as a medical college by the country in which it is situated, and is not accredited by an accrediting body recognized by the Board.
Subchapter H. SEXUAL MISCONDUCT § 16.110. Sexual misconduct.
(a) 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 under section 41(8) of the act (63 P. S. § 422.41(8)).
(b) Sexual behavior that occurs with a current patient other than the Board-regulated practitioner's spouse constitutes unprofessional conduct, is prohibited and subjects the practitioner to disciplinary action under section 41(8) of the act.
(c) When a Board-regulated practitioner is involved with the management or treatment of a patient other than the practitioner's spouse 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 under section 41(8) of the act.
(d) 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.
(e) Consent is not a defense to conduct prohibited by this section.
[Pa.B. Doc. No. 04-11. Filed for public inspection January 2, 2004, 9:00 a.m.]
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