STATE BOARD OF PSYCHOLOGY [49 PA. CODE CH. 41] Sexual Intimacies [30 Pa.B. 2593] The State Board of Psychology (Board) amends § 41.1 (relating to definitions) and adopts §§ 41.81--41.85 (relating to sexual intimacies) to read as set forth in Annex A.
The amendments are intended to better protect consumers of psychological services and provide guidance to the profession on issues relating to: (1) sexual intimacies between a psychologist and a current or former client/patient, and an immediate family member of a current or former client/patient; (2) former sexual partners as client/patients; and (3) sexual intimacies between a psychologist and a psychological trainee, student or research participant. The amendments will also put psychologists on notice that the consent of an individual to engage in sexual intimacies with the psychologist may not be a defense in any disciplinary proceedings brought under §§ 41.81--41.83, and that a psychologist who engages in conduct prohibited by the amendments will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective action.
Notice of proposed rulemaking was published at 28 Pa.B. 1421 (March 21, 1998). Publication was followed by a 30-day public comment period during which the Board received comments from the Pennsylvania Psychological Association (PPA). Following the close of the public comment period, the Board also received comments from the House Professional Licensure Committee (HPLC) and the Independent Regulatory Review Commission (IRRC). The Senate Consumer Protection and Professional Licensure Committee (SCP/PLC) offered no comments, suggestions or objections regarding the amendments.
The amendments reflected in Annex A are responsive to the comments and suggestions received by all commentators. In addition, the Board considered this rulemaking and its purpose under the directives of Executive Order 1996-1, Regulatory Review and Promulgation.
For ease of reference, the Board will address the comments in the order in which the amendments appear.
§ 41.1. Definitions.
IRRC commented that § 41.81(a) provides examples of who will be considered immediate family, but, that no actual definition of the term is provided. IRRC suggested that rather than provide examples, the Board should define ''immediate family'' under § 41.1. The Board has followed this suggestion. For purposes of these amendments, the term ''immediate family member'' will include a parent/guardian, child, sibling or spouse or family member with whom the child lives.
Commentators objected to the proposed definition of ''sexual intimacies'' on the ground that the wording does not sufficiently clarify that verbal and nonverbal communications, kissing, hugging, touching, physical contact and self-disclosure refers to romantic, sexually suggestive, sexually demeaning or erotic behavior. The PPA pointed out that a psychologist should not be prohibited from or disciplined for engaging in an occasional hug or touching a patient as part of a normal social interaction. For example, some patients (especially children) may feel offended if a psychologist avoids a hug or withdraws quickly from a handshake or an accidental physical touch. The PPA opined that the proposed definition could lead to consistent misinterpretations by psychologists and patients. The PPA suggested that the definition be reworded to clarify that sexualized or eroticized hugging, touching, physical contact or self-disclosure constitute prohibited conduct. Both the HPLC and IRRC expressed similar opinions. In response to these comments, the Board has revised the definition of ''sexual intimacies'' accordingly.
§ 41.81. Prohibited conduct.
Consistent with the amendments to § 41.1, subsection (a) has been amended by deleting the examples of who will be considered ''immediate family.''
Subsection (b) has also been amended at the suggestion of IRRC to prohibit sexual intimacies between a psychologist and a psychology trainee, student or research participant. IRRC expressed concern that the phrase ''supervisory, . . . or other authority'' and the term ''supervisee'' in the proposed wording of this subsection could be interpreted to prohibit a psychologist from having a relationship with an office administrator or receptionist. The intent of the original wording was to prohibit a relationship between a psychologist and a student, a research participant, an individual who is fulfilling the supervised experience requirements for licensure, or an applicant for licensure who is continuing in training under § 41.31(c)(5) (relating to qualifications for taking licensing examination). Since the term ''psychology trainee'' is already defined under § 41.1 to cover this group of individuals, the amendments more clearly describe the intended prohibition.
§ 41.83. Sexual intimacies with a former client/patient, or an immediate family member of a former client/patient.
IRRC expressed three concerns about proposed § 41.83. First, IRRC commented that § 41.84 needs to clarify that the factors contained in § 41.83(b) must be demonstrated only after an order to show cause has been issued, and prior to or at the time of initiation of the relationship. IRRC commented that a psychologist would not be required to present proof there has been no exploitation until after an order to show cause has been issued. A psychologist who desires to commence a relationship with a former client/patient 2 years following the termination of the professional relationship must satisfy himself, prior to engaging in the relationship, that there will be no exploitation of the client/patient.
Sexual relationships with former clients are generally deemed to be inappropriate because of the many ongoing responsibilities that a psychologist has to his client after termination. For example, psychologists have an ongoing responsibility to maintain a client's privacy, confidentiality and privilege after termination. Psychologists are responsible for maintaining professional records beyond termination. Psychologists may be subpoenaed to offer expert witness testimony beyond termination. Additionally, psychologists must be cognizant of the fact that initiating or agreeing to a posttherapy sexual relationship with a client interferes with the client's option to return to therapy and may interfere with the integration and consolidation of the transference phenomena and therapeutic work.
In light of these ongoing ethical responsibilities, a psychologist who desires to commence a sexual relationship with a client/patient after 2 years must satisfy himself prior to engaging in the relationship that there has been no exploitation of the client/patient. The seven factors listed in subsection (b) assist the licensee, prior to entering the relationship, and Board when evaluating the relationship, in determining whether exploitation occurs.
Second, IRRC requested the Board to explain why each factor contained in subsection (b)(1)--(7) is necessary in each type of relationship.
The first factor requires a psychologist to consider the amount of time that has passed since the professional relationship terminated. The longer the period following the termination of the professional relationship, the less likely an exploitation occurs.
The second factor recognizes that there are differences between the intensity and depth of different therapies, such as intensive psychodynamic therapy versus biofeedback for headaches. Therapy which consists of one or two sessions differs substantially from therapy which spans several years. Thus, psychologists must consider the nature and the duration of the therapy to fully determine whether a past therapeutic relationship would exploit the client's trust and dependency. The more intensive the therapeutic relationship, the more likely an exploitation occurs.
The third factor recognizes that circumstances surrounding termination may have a large bearing on the likelihood of a posttherapy sexual relationship ever occurring without exploitation or harm, or both, to the client/patient. Examples of circumstances when exploitation may occur include abrupt or explosive terminations of therapy or therapeutic relationships in which transference or counter transference issues are not manageable.
The fourth factor requires the psychologist to consider the client/patient's personal history. This factor recognizes that unique vulnerabilities of a client/patient may increase the risk of vulnerability and harm to the client/patient if a sexual relationship with a former therapist were to develop. The more vulnerable the client, the more likely an exploitation occurs.
The fifth factor requires a psychologist to consider the client/patient's current mental status, that is, state of mind. For example, an individual who is struggling with mental conflicts may be more easily exploited or harmed than a person whose mental status is stable.
The sixth factor requires consideration into whether or not the psychologist had suggested to the client/patient during therapy that a romantic relationship between them would be possible at the end of 2 years.
Finally, the seventh factor requires consideration of whether or not a posttherapy sexual relationship would likely adversely affect the client/patient or immediate family members of the client/patient. IRRC requested an example of an adverse impact under § 41.83(b)(7). The following hypothetical is illustrative of how a post-therapy sexual relationship with a family member of a former client can adversely affect the client.
The mother of a 7 year old child client/patient takes the child to a psychologist for help in dealing with multiple losses experienced by the child. (Two of the child's older siblings with whom the child was especially close died instantly in a tragic accident; the child's parents could not cope with the loss and divorced. In addition, the child's pet dog and ''best friend'' was struck by a car and died). Through therapy, the psychologist was successful in helping the child deal with his losses. Two years after therapy terminated, the psychologist and the child's mother run into each other at a social event hosted by a mutual friend. The psychologist and mother start dating. The child, now 10 years old, forms a close bond with the psychologist. One year later, the relationship between mother and psychologist ends. The child falls apart because of another loss. In this hypothetical, consideration by the psychologist of the child client/patient's personal history would have ruled out the possibility of the psychologist commencing a relationship with the child's mother.
§ 41.84. Disciplinary proceedings.
IRRC again commented that the Board should clarify that the psychologist's burden of proof occurs only after an order to show cause has been issued. As previously explained, the psychologist is not required to provide the Board with proof until a disciplinary action commences. Nonetheless, the psychologist must consider the seven factors contained in § 41.83(b) prior to entering into the relationship. The Board believes that no revision is necessary to subsection (c) as disciplinary proceedings require the filing of an order to show cause unless settled in advance through a consent agreement between the parties.
Compliance with Executive Order 1996-1, Regulatory Review and Promulgation
The Board reviewed this rulemaking and considered its purpose and likely impact upon the public and the regulated population under the directives of Executive Order 1996-1, Regulatory Review and Promulgation. The final-form regulations address a compelling public interest as described in this Preamble and otherwise complies with Executive Order 1996-1.
Fiscal Impact and Paperwork Requirements
The amendments should have no fiscal impact on the Commonwealth or its political subdivisions. Likewise, the amendments should not necessitate any legal, accounting, reporting or other paperwork requirements.
Statutory Authority
The amendments are adopted under the authority of section 3.2(2) of the Professional Psychologist's Practice Act (63 P. S. § 1203.2(2)).
Sunset Date
The Board continually monitors the effectiveness of its regulations through communications with the regulated population; accordingly, no sunset date has been set.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Board submitted a copy of the notice of proposed rulemaking, published at 28 Pa.B. 1421, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.
Under section 5(c) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments received, as well as other documentation. In preparing these final-form regulations, the Board has considered all 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)), these final-form regulations were approved by the HPLC on April 18, 2000, and deemed approved by the SCP/PLC on April 26, 2000. Under section 5.1(e) of the Regulatory Review Act, IRRC met on April 27, 2000, and approved the final-form regulations.
Contact Person
Further information may be obtained by contacting Melissa Wilson, Administrative Assistant, State Board of Psychology, P. O. Box 2649, Harrisburg, PA 17105-2649, (717) 783-7155.
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, 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 28 Pa.B. 1421.
(4) These amendments are necessary and appropriate for administration and enforcement of the Board's authorizing statute.
Order
The Board, acting under its authorizing statute, orders that:
(a) The regulations of the Board, 49 Pa. Code Chapter 41, are amended by amending § 41.1 and adding §§ 41.81--41.85 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(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 upon publication in the Pennsylvania Bulletin.
YVONNE E. KEAIRNS, Ph.D.,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 30 Pa.B. 2430 (May 13, 2000)).
Fiscal Note: Fiscal Note 16A-633 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 41. STATE BOARD OF PSYCHOLOGY GENERAL § 41.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Client/patient--A person, system, organization, group or family for whom a psychologist provides psychological services. In the case of individuals with legal guardians, including minors and legally incapacitated adults, the legal guardian shall be the client/patient for decisionmaking purposes. The minor, legally incapacitated adult or other person actually receiving the service shall be the client/patient for issues specifically reserved to the individual, such as confidential communications in a therapeutic relationship and issues directly affecting the physical or emotional safety of the individual, such as sexual or other exploitive dual relationships.
* * * * * Immediate family member--Parent/guardian, child, sibling, spouse or other family member with whom the client/patient lives.
* * * * * Professional relationship--A therapeutic relationship which shall be deemed to exist for a period of time beginning with the first professional contact or consultation between a psychologist and a client/patient and continuing thereafter until the last date of a professional service. If a psychologist sees a client/patient on an intermittent basis, the professional relationship shall be deemed to start anew on each date that the psychologist provides a professional service to the client/patient.
* * * * * Psychologist--A person who holds a license issued under the act to engage in the practice of psychology.
* * * * * Sexual intimacies--Romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include, but are not limited to, sexual intercourse, nontherapeutic verbal communication or inappropriate nonverbal communications of a sexual or romantic nature, sexual invitations, soliciting a date from a client/patient, masturbating in the presence of a client/patient (or encouraging a client/patient to masturbate in the presence of the psychologist), exposure, kissing or hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.
SEXUAL INTIMACIES § 41.81. Prohibited conduct.
(a) Sexual intimacies between a psychologist and a current client/patient, or an immediate family member of a current client/patient, are prohibited.
(b) Sexual intimacies between a psychologist and a psychology trainee, student or research participant are prohibited.
§ 41.82. Former sexual partners as client/patients.
Psychologists may not accept as client/patients persons with whom they have engaged in sexual intimacies.
§ 41.83. Sexual intimacies with a former client/patient, or an immediate family member of a former client/patient.
(a) Sexual intimacies between a psychologist and a former client/patient, or an immediate family member of a former client/patient are prohibited for at least 2 years following the termination of the professional relationship, and then only under very limited circumstances.
(b) Following the passage of the 2-year period, psychologists who engage in sexual intimacies with a former client/patient, or an immediate family member of a former client/patient shall have the burden of demonstrating that there has been no exploitation of the client/patient in light of all relevant factors, including:
(1) The amount of time that has passed since the professional relationship terminated.
(2) The nature and duration of the therapy.
(3) The circumstances of termination.
(4) The client/patient's personal history, for example, unique vulnerabilities.
(5) The client/patient's current mental status.
(6) Statements or actions made by the psychologist during the course of therapy suggesting or inviting the possibility of a posttermination sexual or romantic relationship with the client/patient.
(7) The likelihood of adverse impact on the client/patient and immediate family members of the client/patient.
§ 41.84. Disciplinary proceedings.
(a) The consent of an individual to engage in sexual intimacies with the psychologist may not be a defense in any disciplinary action brought under §§ 41.81--41.83 (relating to prohibited conduct; former sexual partners as client patients; and sexual intimacies with a former client/patient or, an immediate family member of a former client/patient).
(b) With the exception of information contained in a professional record, neither opinion evidence, reputation evidence nor specific instances of the past sexual conduct of an individual may be admissible in a disciplinary action brought under §§ 41.81--41.83.
(c) In a disciplinary proceeding brought under §§ 41.81--41.83, the psychologist shall have the burden of proving that there has been no exploitation of the client/patient in light of all of the relevant factors enumerated under § 41.83(b)(1)--(7).
§ 41.85. Impaired professional program.
When the Board takes disciplinary or corrective action against a psychologist under section 8(a) of the act (63 P. S. § 1208(a)), for conduct prohibited by §§ 41.81--41.83 (relating to sexual intimacies with a former client/patient, or an immediate family member of a former client/patient) the psychologist will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective actions.
[Pa.B. Doc. No. 00-886. Filed for public inspection May 26, 2000, 9:00 a.m.]
