STATE BOARD OF OSTEOPATHIC MEDICINE [49 PA. CODE CH. 25] Sexual Misconduct [34 Pa.B. 47] The State Board of Osteopathic Medicine (Board) adds §§ 25.215 and 25.216 (relating to definitions; and 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 10.1(c), 15(a)(8) and (b)(9) and 16 of the Osteopathic Medical Practice Act (act) (63 P. S. §§ 271.10a(c), 271.15(a)(8) and (b)(9) and 271.16), the Board has authority to establish standards of professional conduct for Board-regulated practitioners under its jurisdiction. These individuals include osteopathic physicians, physician assistants, respiratory care practitioners 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
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 have been upheld by the Commonwealth Court; the Code of Ethics, as published by the American Osteopathic 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.
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 its 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 further 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 instead 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 on Proposed Rulemaking
Notice of proposed rulemaking was published at 32 Pa.B. 1734 (April 6, 2002). The Board received comments from the Independent Regulatory Review Commission (IRRC) and the Pennsylvania Medical Society (PMS). The Board also received public comments from five osteopathic physicians and one member of the public, including representatives of the Pennsylvania Osteopathic Medical Association.
IRRC recommended that the definitions section be separated from the substantive portions of the rulemaking. The Board agreed that this change would improve clarity and created § 25.216 for the substantive portions of the final-form rulemaking. Additionally, IRRC recommended amending the definition of ''immediate family member'' to clarify whether the phrase ''other family member'' included those related by blood, marriage or law. The Board amended the language to indicate that it included those related by blood or marriage. The Board declined IRRC's recommendation to extend the final-form rulemaking's protections to nonfamily members and to those immediate family members not residing with the patient because it felt that the current definitions included those individuals most likely to be victims of sexual exploitation. Expanding the definition would increase the risk of prosecution for innocent behavior.
IRRC further recommended that the term ''Board-regulated practitioner'' in subsection (b) (now § 25.216(a)) be defined. Although this term is already defined by the act, the Board accepted IRRC's request that it be included in the definition section of the final-form rulemaking. The Board also accepted IRRC's recommendation that a cross reference be made to the disciplinary provisions of the act in subsections (b)--(d) (now § 25.216(a)--(c)).
The Board declined to accept IRRC's recommendation that it further define the term ''mental health disorder'' in subsection (d) (now § 25.216(c)). IRRC recommended that the Board refer to patients who are diagnosed under the Diagnostic and Statistical Manual of Mental Disorders-IV. The Board chose to retain the term ''mental health disorder,'' believing that it encompassed a wider variety of mental and emotional conditions that would potentially make a patient more vulnerable to inappropriate sexual advances by a Board-regulated practitioner.
The Board also declined IRRC's invitation to provide examples of behavior deemed inappropriate under this final-form rulemaking. 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.
The House Professional Licensure Committee (HPLC) declined to comment until final-form rulemaking is published.
The PMS expressed their opinion that it is impossible to write regulations for sexual misconduct that clearly define prohibited behavior without creating the possibility of prosecution for innocent behavior. Several commentators also expressed similar concerns. 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 Board-regulated practitioners are currently being prosecuted for sexual exploitation of patients, the Board feels strongly that it must be as clear as possible that a health care 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.
The PMS expressed concern that innocent behavior will be subject to punishment. The final-form rulemaking is directed at behavior that is exploitive of the health care practitioner-patient relationship; that is, situations in which the health care practitioner abuses the position of power over the patient. Clearly the scenario that the PMS suggests, for example, a patient offering the phone number of the patient's sibling, cannot in any way be considered exploitive.
The PMS's concerns about the 2-year ''cooling off'' period for health care practitioners involved in the management or treatment of a patient for a mental health disorder are unpersuasive. The scenario suggested by PMS, for example, a physician who prescribes an antidepressant to a patient suffering from a painful condition, does not meet the rulemaking's requirement that the practitioner be managing or treating a mental health disorder. If the patient has a related mental health disorder that the practitioner is, in fact, treating, then the practitioner is prohibited from engaging in sexual behavior with that patient for 2 years from the termination of the health care practitioner-patient relationship.
Several osteopathic physicians wrote to express their concern that innocent behavior will be subject to prosecution. As noted previously, the Board prosecutors routinely exercise professional judgment in these types of matters. Two of the doctors requested clarification of the 2-year ''cooling off'' period and one recommended grammatical changes to the proposed rulemaking.
One individual urged the Board to consider amending the rulemaking to include specific directions regarding the use of gowns and chaperones. Because this rulemaking is intended to prohibit sexual misconduct, and not to address practice policies, the Board declined to adopt the recommendation.
The Governor's Policy Office recommended that the 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 its regulations. 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 March 27, 2002, the Board submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 1734, to IRRC and the Chairpersons of the HPLC and the Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC, the HPLC and the SCP/PLC 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)), these final-form regulations were 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
Interested persons may obtain information regarding the final-form rulemaking by writing to Amy L. Nelson, Board Counsel, State Board of Osteopathic 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, 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 is necessary and appropriate for administration and enforcement of the authorizing act identified in Part B of this preamble.
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing act identified in Part B of this preamble and do not enlarge the purpose of the proposed rulemaking published at 32 Pa.B. 1734.
J. Order
The Board, acting under its authorizing statutes, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 25, are amended by adding §§ 25.215 and 25.216 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 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 on publication in the Pennsylvania Bulletin.
THOMAS R. CZARNECKI, D.O.,
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, 2002).)
Fiscal Note: Fiscal Note 16A-539 remains valid for the final adoption of the subject regulations.
Annex A TITLE 49. PROFESSIONAL AND
VOCATIONAL STANDARDSPART I. DEPARTMENT OF STATE Subpart A. PROFESSIONAL AND
OCCUPATIONAL AFFAIRSCHAPTER 25. STATE BOARD OF
OSTEOPATHIC MEDICINESubchapter D. MINIMUM STANDARDS
OF PRACTICE§ 25.215. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Board-regulated practitioner--An osteopathic physician, physician assistant, respiratory care practitioner, athletic trainer, acupuncturist or an applicant for a license or certificate issued by the Board.
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.
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.
§ 25.216. 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 15(a)(8) and (b)(9) of the act (63 P. S. § 271.15(a)(8) and (b)(9)).
(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 15(a)(8) and (b)(9) of the act.
(c) When a Board-regulated practitioner has been 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 15(a)(8) and (b)(9) 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. 04-13. Filed for public inspection January 2, 2004, 9:00 a.m.]
