1640 Sexual misconduct

STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS

[49 PA. CODE CHS. 47--49]

Sexual Misconduct

[34 Pa.B. 4908]

   The State Board of Social Workers, Marriage and Family Therapists and Professional Counselors (Board) proposes to adopt regulations regarding sexual misconduct committed by licensed social workers, licensed clinical social workers, licensed marriage and family therapists and licensed professional counselors by adding §§ 47.61--47.66, 48.21--48.26 and 49.21--49.26 to read as set forth in Annex A.

Effective Date

   The proposed rulemaking will be effective upon publication of final-form regulations in the Pennsylvania Bulletin.

Statutory Authority

   The Board is authorized to adopt regulations necessary for the administration of its enabling statute under section 6(2) of the Social Workers, Marriage and Family Therapists and Professional Counselors Act (act) (63 P. S. § 1906(2)).

Background and Purpose

   This proposed rulemaking was developed as a result of increasing complaints of sexual misconduct against health care professionals who are licensed by the Department of State, Bureau of Professional and Occupational Affairs. In this proposal, the Board addresses issues concerning sexual misconduct in the context of the provision of social work, clinical social work, marriage and family therapy and professional counseling services.

   The proposed rulemaking seeks to better protect consumers of social work, marriage and family therapy and professional counseling services and to provide guidance to the licensees by defining terms such as ''client/patient,'' ''immediate family member'', ''professional relationship'' and ''sexual intimacies.'' The proposed rulemaking guides licensees by informing them that sexual intimacies between a social worker, clinical social worker, marriage and family therapist or professional counselor and a client or patient is prohibited. The proposed rulemaking guides social workers, clinical social workers, marriage and family therapists and professional counselors by informing them that their professional relationship with a client/patient exists for a time period beginning with the first professional contact or consultation and ends upon the last date of a professional service. The proposed rulemaking notifies social workers, clinical social workers, marriage and family therapists and professional counselors that the consent of an individual to engage in sexual intimacies cannot be a defense in a disciplinary proceeding before the Board and that a social worker, clinical social worker, marriage and family therapist and professional counselor who engages in conduct prohibited by the amendments will not be eligible for placement into an impaired professional program under the act.

   Prior to drafting this proposed rulemaking, the Board invited interested associations, colleges and universities and individuals to comment on a preliminary draft. The Board reviewed and considered all comments and suggestions received by interested parties during the regulatory development process. The interested associations, colleges and universities, and individuals included the following: National Association of Social Workers, Association of Social Work Boards, Pennsylvania Alliance of Counseling Professionals, Council on Social Work Education, Pennsylvania Society for Clinical Social Work, University of Scranton, University of Southern Maine, American Association of State Counseling Boards, American Association of Marriage and Family Therapy, Pennsylvania Social Work Coalition, Pennsylvania Catholic Conference, California University of Pennsylvania, Indiana University of Pennsylvania, Millersville University of Pennsylvania, Shippensburg University of Pennsylvania, Slippery Rock University of Pennsylvania, West Chester University of Pennsylvania, Pennsylvania State University, University of Pittsburgh, Drexel University, University of Pennsylvania, Beaver College, Bucknell University, Eastern College, Gwynedd-Mercy College, Immaculata College, Lehigh University, Marywood University, Philadelphia College of Bible, Philadelphia University, University of Scranton, Villanova University, Westminster College, Duquesne University and Society for Social Work Leadership in Health Care.

Description of Proposed Rulemaking

   Sections 47.61, 48.21 and 49.21 (relating to definitions) define ''client/patient,'' ''immediate family member,'' ''professional relationship'' and ''sexual intimacies.''

   The term ''client/patient'' is defined to mean a person, group or family for whom a social worker, clinical social worker, marriage and family therapist or professional counselor provides professional services. In the case of individuals with legal guardians, including minors and legally incapacitated adults, the legal guardian is the client/patient for decision making purposes. The minor, legally incapacitated adult or other person actually receiving the service is 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.

   The term ''immediate family member'' is defined to mean a parent or guardian, child, sibling, spouse or other family member with whom the client/patient lives.

   The term ''professional relationship'' is defined as a therapeutic relationship which is deemed to exist for a period of time beginning with the first professional contact or consultations between a social worker, clinical social worker, marriage and family therapist or professional counselor and a client/patient and continuing thereafter until the last date of a professional service. If a social worker, clinical social worker, marriage and family therapist or professional counselor sees a client/patient on an intermittent basis, the professional relationship shall be deemed to start anew on each date that the social worker, clinical social worker, marriage and family therapist or professional counselor provides a professional service to the client/patient.

   The term ''sexual intimacies'' is defined as any behavior of a romantic, sexually suggestive, sexually demeaning or erotic nature. Examples of this behavior include: sexual intercourse, nontherapeutic verbal communication or inappropriate nonverbal communication 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 social worker, clinical social worker, marriage and family therapist and professional counselor); or exposure, kissing or hugging, touching, physical contact or self-disclosure of a sexual or erotic nature. In drafting this definition, the Board seeks to insure that nonsexual hugging, touching, physical contact or self-disclosure are excluded from the definition. The Board notes that authorities agree that nonsexual physical conduct or self-disclosure may be appropriate. That conduct can be healing and supportive to many clients/patients and some nonerotic self-disclosure may create trust and facilitate a therapeutic alliance particularly with children, the physically and mentally disabled and the elderly. Through this definition, the Board is only intending to prohibit kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.

   Sections 47.62, 48.22 and 49.22 (relating to prohibited conduct) state the general principle that sexual intimacies between a social worker, clinical social worker, marriage and family therapist or professional counselor and a current client/patient, or an immediate family member of a current client/patient, are prohibited.

   Sections 47.63, 48.23 and 49.23 (relating to former sexual partners as client/patients) state the proposition that social workers, clinical social workers, marriage and family therapists and professional counselors may not accept as client/patients persons with whom they have engaged in sexual intimacies.

   Sections 47.64(a), 48.24(a) and 49.24(a) (relating to sexual intimacies with a former client/patient or an immediate family member of a former client/patient) would prohibit sexual intimacies between a social worker, clinical social worker, marriage and family therapist or professional counselor and a former client/patient, or an immediate family member of a former client/patient, for at least 7 years following the termination of the professional relationship and then only if certain conditions are precedent. In determining that 7 years should be the threshold period in which to bar sexual intimacies, the Board reviewed codes of ethics of many professional associations. In particular, the Commission on Rehabilitation Counseling Certification prohibits sexual intimacies for 5 years, the National Association of Social Workers prohibits sexual intimacies indefinitely, the Pennsylvania Certification Board prohibits sexual intimacies indefinitely and the American Association of Marriage and Family Therapy prohibits it for 2 years. The Board believes that 7 years should be the threshold to bar sexual intimacies based on its view that a substantial period of time is required before the bonds of the therapeutic relationship are actually broken. The 7-year period is viewed by the Board as a compromise between a 5-year prohibition and an indefinite prohibition.

   Sections 47.64(b), 48.24(b) and 49.24(b) define the criteria to determine if a personal relationship is exploitative of the therapeutic relationship. These criteria/factors include: the amount of time that has passed since the professional relationship terminated; the nature and duration of the therapy; the circumstances of termination; the client/patient's personal history or vulnerabilities; the client/patient's current mental status; statements or actions made by the social worker, clinical social worker, marriage and family therapist or professional counselor during the course of therapy suggesting or inviting the possibility of a posttermination sexual or romantic relationship with the client/patient.

   Sections 47.65, 48.25 and 49.25 (relating to disciplinary proceedings) address disciplinary matters before the Board which involve sexual intimacies. Subsection (a) would put all licensees on notice that the consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies shall not be a defense in any disciplinary action brought under §§  47.62--47.64, §§ 48.22--48.24 or §§ 49.22--49.24. Subsection (b) would put all licensees on notice that neither evidence of specific instances, opinion evidence nor reputation evidence of past sexual conduct of a former client/patient or immediate family member of a former client/patient is admissible in proceedings alleging conduct which constitutes a sexual impropriety or violation. Subsection (c) would put all licensees on notice that in a disciplinary proceeding brought for sexual impropriety, the social worker, clinical social worker, marriage and family therapist and professional counselor has the burden of proving that there has been no exploitation of the client/patient in light of all of the factors enumerated under §§ 47.64 (b)(1)--(7), §§ 48.24(b)(1)--(7) or §§ 49.24(b)(1)--(7).

   Sections 47.66, 48.26 and 49.26 (relating to impaired professional program) would inform licensees that a licensee subject to disciplinary action for a sexual impropriety or violation will not be eligible for an impaired professional program under the act.

Fiscal Impact and Paperwork Requirements

   The proposed rulemaking should have no fiscal impact and will not impose additional paperwork on the private sector, the general public and the Commonwealth and its political subdivisions.

Sunset Date

   The Board continuously monitors its regulations. Therefore, no sunset date has been assigned.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 23, 2004, the Board submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.

   Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. 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 comments, recommendations or objections raised.

Public Comment

   Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Beth Sender Michlovitz, Counsel, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days following publication of the proposed rulemaking in the Pennsylvania Bulletin. Reference (16A-691) Sexual Misconduct when submitting comments.

RONALD E. HAYS,   
Chairperson

   Fiscal Note:  16A-691. 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 47.  STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS

SEXUAL MISCONDUCT

§ 47.61.  Definitions.

   The following words and terms, when used in this section and §§ 47.62--47.66, have the following meanings, unless the context clearly indicates otherwise:

   Client/patient--A person, group or family for whom a social worker or clinical social worker provides social work services or clinical social work services. In the case of individuals with legal guardians, including minors and legally incapacitated adults, the legal guardian shall be the client/patient for decision making 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--A 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 social worker or clinical social worker and a client/patient and continuing thereafter until the last date of a professional service. If a social worker or clinical social worker sees a client/patient on an intermittent basis, the professional relationship shall be deemed to start anew on each date that the social worker or clinical social worker provides a professional service to the client/patient.

   Sexual intimacies--Romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:

   (i)  Sexual intercourse.

   (ii)  Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.

   (iii)  Sexual invitations.

   (iv)  Soliciting a date from a client/patient.

   (v)  Masturbating in the presence of a client/patient (or encouraging a client/patient to masturbate in the presence of the social worker or clinical social worker).

   (vi)  Exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.

§ 47.62.  Prohibited conduct.

   Sexual intimacies between a social worker or clinical social worker and a current client/patient, or an immediate family member of a current client/patient, are prohibited.

§ 47.63.  Former sexual partners as client/patients.

   Social workers and clinical social workers may not accept as clients/patients persons with whom they have engaged in sexual intimacies.

§ 47.64.  Sexual intimacies with a former client/patient or an immediate family member of a former client/patient.

   (a)  Sexual intimacies between a social worker or clinical social worker and a former client/patient, or an immediate family member of a former client/patient, are prohibited for at least 7 years following the termination of the professional relationship, and then only under very limited circumstances.

   (b)  Following the passage of the 7-year period, social workers and clinical social workers 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 social worker or clinical social worker 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.

§ 47.65.  Disciplinary proceedings.

   (a)  The consent of a former client/patient or immediate family member of the former client/patient to engage in sexual intimacies with the social worker or clinical social worker may not be a defense in any disciplinary action brought under §§ 47.62--47.64 (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 a former client/patient, or immediate family member of a former client/patient, may be admissible in a disciplinary action brought under §§ 47.62--47.64.

   (c)  In a disciplinary proceeding brought under §§ 47.62--47.64, the social worker or clinical social worker 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 § 47.64(b)(1)--(7).

§ 47.66.  Impaired professional program.

   When the Board takes disciplinary or corrective action against a social worker or clinical social worker under section 11(a) of the act (63 P. S. § 1911(a)) for conduct prohibited by §§ 47.62--47.64 (relating to prohibited conduct; former sexual partners as clients/patients; and sexual intimacies with a former client/patient or an immediate family member of a former client/patient), the social worker or clinical social worker will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective action.

CHAPTER 48.  STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS--LICENSURE OF MARRIAGE AND FAMILY THERAPISTS

SEXUAL MISCONDUCT

§ 48.21.  Definitions

   The following words and terms, when used in this section and §§ 48.22--48.26, have the following meanings, unless the context clearly indicates otherwise:

   Client/patient--A person, group or family for whom a marriage and family therapist provides marriage and family therapy services. In the case of individuals with legal guardians, including minors and legally incapacitated adults, the legal guardian shall be the client/patient for decision making 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--A 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 marriage and family therapist and a client/patient and continuing thereafter until the last date of a professional service. If a marriage and family therapist sees a client/patient on an intermittent basis, the professional relationship shall be deemed to start anew on each date that the marriage and family therapist provides a professional service to the client/patient.

   Sexual intimacies--Romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:

   (i)  Sexual intercourse.

   (ii)  Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.

   (iii)  Sexual invitations.

   (iv)  Soliciting a date from a client/patient.

   (v)  Masturbating in the presence of a client/patient (or encouraging a client/patient to masturbate in the presence of the marriage and family therapist).

   (vi)  Exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.

§ 48.22.  Prohibited conduct.

   Sexual intimacies between a marriage and family therapist and a current client/patient, or an immediate family member of a current client/patient, are prohibited.

§ 48.23.  Former sexual partners as client/patients.

   Marriage and family therapists may not accept as client/patients persons with whom they have engaged in sexual intimacies.

§ 48.24.  Sexual intimacies with a former client/patient or an immediate family member of a former client/patient.

   (a)  Sexual intimacies between a marriage and family therapist and a former client/patient, or an immediate family member of a former client/patient are prohibited for at least 7 years following the termination of the professional relationship, and then only under very limited circumstances.

   (b)  Following the passage of the 7-year period, marriage and family therapists 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 marriage and family therapist 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.

§ 48.25.  Disciplinary proceedings.

   (a)  The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the marriage and family therapist may not be a defense in any disciplinary action brought under §§ 48.22--48.24 (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 a former client/patient, or immediate family member of a former clinet/patient, may be admissible in a disciplinary action brought under §§ 48.22--48.24.

   (c)  In a disciplinary proceeding brought under §§ 48.22--48.24, the marriage and family therapist 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 § 48.24(b)(1)--(7).

§ 48.26.  Impaired professional program.

   When the Board takes disciplinary or corrective action against a marriage and family therapist under section 11(a) of the act (63 P. S. § 1911(a)) for conduct prohibited by §§ 48.22--48.24 (relating to prohibited conduct; former sexual partners as clients/patients; and sexual intimacies with a former client/patient or an immediate family member of a former client/patient), the marriage and family therapist will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective action.

CHAPTER 49.  STATE BOARD OF SOCIAL WORKERS, MARRIAGE AND FAMILY THERAPISTS AND PROFESSIONAL COUNSELORS--LICENSURE OF PROFESSIONAL COUNSELORS

SEXUAL MISCONDUCT

§ 49.21.  Definitions

   The following words and terms, when used in this section and §§ 49.22--49.26, have the following meanings, unless the context clearly indicates otherwise:

   Client/patient--A person, group or family for whom a professional counselor provides professional counseling services. In the case of individuals with legal guardians, including minors and legally incapacitated adults, the legal guardian shall be the client/patient for decision making 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--A 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 professional counselor and a client/patient and continuing thereafter until the last date of a professional service. If a professional counselor sees a client/patient on an intermittent basis, the professional relationship shall be deemed to start anew on each date that the professional counselor provides a professional service to the client/patient.

   Sexual intimacies--Romantic, sexually suggestive, sexually demeaning or erotic behavior. Examples of this behavior include the following:

   (i)  Sexual intercourse.

   (ii)  Nontherapeutic verbal communication or inappropriate nonverbal communication of a sexual or romantic nature.

   (iii)  Sexual invitations.

   (iv)  Soliciting a date from a client/patient.

   (v)  Masturbating in the presence of a client/patient (or encouraging a client/patient to masturbate in the presence of the professional counselor).

   (vi)  Exposure, kissing, hugging, touching, physical contact or self-disclosure of a sexual or erotic nature.

§ 49.22.  Prohibited conduct.

   Sexual intimacies between a professional counselor and a current client/patient, or an immediate family member of a current client/patient, are prohibited.

§ 49.23.  Former sexual partners as client/patients.

   Professional counselors may not accept as client/patients persons with whom they have engaged in sexual intimacies.

§ 49.24.  Sexual intimacies with a former client/patient or an immediate family member of a former client/patient.

   (a)  Sexual intimacies between a professional counselor and a former client/patient, or an immediate family member of a former client/patient, are prohibited for at least 7 years following the termination of the professional relationship, and then only under very limited circumstances.

   (b)  Following the passage of the 7-year period, professional counselors 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 professional counselor 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.

§ 49.25.  Disciplinary proceedings.

   (a)  The consent of a former client/patient or immediate family member of a former client/patient to engage in sexual intimacies with the professional counselor may not be a defense in any disciplinary action brought under §§ 49.22--49.24 (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 a former client/patient, or immediate family member of a former client/patient, may be admissible in a disciplinary action brought under §§ 49.22--49.24.

   (c)  In a disciplinary proceeding brought under §§ 49.22--49.24, the professional counselor 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 § 49.24(b)(1)--(7).

§ 49.26.  Impaired professional program.

   When the Board takes disciplinary or corrective action against a professional counselor under section 11(a) of the act (63 P. S. § 1911(a)) for conduct prohibited by §§ 49.22--49.24 (relating to prohibited conduct; former sexual partners as clients/patients; and sexual intimacies with a former client/patient or an immediate family member of a former client/patient), the professional counselor will not be eligible for placement into an impaired professional program in lieu of disciplinary or corrective action.

[Pa.B. Doc. No. 04-1640. Filed for public inspection September 3, 2004, 9:00 a.m.]