Supplemental Notice to WSR 06-21-105.

     Preproposal statement of inquiry was filed as WSR 06-13-013.

     Title of Rule and Other Identifying Information: Establishes new sections WAC 246-817-450 Definitions and 246-817-460 Sexual misconduct rules for dentists. Initial rules were filed under WSR 06-21-105. The supplemental rules are being filed, in accordance with RCW 34.05.340 Variance between proposed and final rule, to reflect the significant changes that were made, based on stakeholder input, to the initial proposal at the formal hearing stage. Refiling these rules will provide additional opportunity for public and stakeholder review and input into the amended version of the rules.

     Hearing Location(s): Department of Health, Point Plaza East, Room 152/153, 310 Israel Road S.E., Tumwater, WA 98501, on July 26, 2007, at 6:00 p.m.

     Date of Intended Adoption: July 26, 2007.

     Submit Written Comments to: Lisa R. Anderson, Program Manager, Dental Quality Assurance Commission, P.O. Box 47867, Olympia, WA 98504-7867, web site http://www3.doh.wa.gov/policyreview/, fax (360) 664-9077, by July 13, 2007.

     Assistance for Persons with Disabilities: Contact Lisa R. Anderson by July 16, 2007, TTY (800) 833-6388 or 711.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed rules will provide guidance and establish clear definitions on the topic of sexual misconduct for dentists. In its efforts to ensure public safety, the commission is proposing rules to help dentists recognize and avoid situations that could be considered as sexual misconduct in nature, and to help educate consumers about what they should reasonably expect from their dental health care providers.

     Reasons Supporting Proposal: The governor issued Executive Order 06-03, Investigation of Health Professional Sexual Misconduct, which requires a comprehensive definition of sexual misconduct. Currently, dentistry does not have specific definitions or rules related to sexual misconduct. The proposed rules will establish clear and consistent definitions for sexual misconduct for dentists and will establish expectations for appropriate conduct by dentists. The governor has requested that sexual misconduct rules be adopted by all health care professions.

     Statutory Authority for Adoption: RCW 18.32.0365, 18.130.050 (1) and (12).

     Statute Being Implemented: RCW 18.130.180.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of health, Washington state dental quality assurance commission, governmental.

     Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Lisa Anderson, Department of Health, P.O. Box 47867, Olympia, WA 98504-7867, (360) 236-4863.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department of health has reviewed the proposal and determined that no small business economic impact statement is required because the proposed rules do not impose more than minor costs to any businesses within the industry.

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Lisa R. Anderson, Program Manager, Dental Quality Assurance Commission, P.O. Box 47867, Olympia, WA 98504-7867, phone (360) 236-4863, fax (360) 664-9077, e-mail lisa.anderson@doh.wa.gov. The department of health reviewed the proposal and determined that no small business economic impact statement is required because the proposed rules do not impose more than minor costs to any businesses within the industry.

June 18, 2007

Lisa R. Anderson

Program Manager

Dental Quality Assurance Commission

OTS-9114.2

SEXUAL MISCONDUCT RULES FOR DENTISTS
NEW SECTION
WAC 246-817-450   Definitions.   (1) "Dentist" means an individual applying for a credential or credentialed specifically as defined in chapter 18.32 RCW.

     (2) "Health care information" means any information, whether oral or recorded in any form or medium that identifies or can readily be associated with the identity of, and relates to the health care of, a patient.

     (3) "Key party" means a person legally authorized to make health care decisions for the patient.

     (4) "Legitimate health care purpose" means activities for examination, diagnosis, treatment, and personal care of patients, including palliative care, as consistent with community standards of practice for the dental profession. The activity must be within the scope of practice of the dentist.

     (5) "Patient" means an individual who receives health care services from a dentist. The determination of when a person is a patient is made on a case-by-case basis with consideration given to a number of factors, including the nature, extent and context of the professional relationship between the dentist and the person. The fact that a person is not receiving treatment or professional services is not the sole determining factor.

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     (a) Sexual intercourse;

     (b) Touching the breasts, genitals, anus or any sexualized body part except as consistent with accepted community standards of practice for examination, diagnosis and treatment and within the dentist's scope of practice;

     (c) Rubbing against a patient or key party for sexual gratification;

     (d) Kissing;

     (e) Hugging, touching, fondling or caressing of a romantic or sexual nature;

     (f) Examination of or touching genitals without using gloves;

     (g) Not allowing a patient privacy to dress or undress except as may be necessary in emergencies or custodial situations;

     (h) Not providing the patient a gown or draping except as may be necessary in emergencies;

     (i) Dressing or undressing in the presence of the patient or key party;

     (j) Removing patient's clothing or gown or draping without consent, emergent medical necessity or being in a custodial setting;

     (k) Encouraging masturbation or other sex act in the presence of the dentist;

     (l) Masturbation or other sex act by the dentist in the presence of the patient or key party;

     (m) Soliciting a date with a patient or key party;

     (n) Discussing the sexual history, preferences or fantasies of the dentist;

     (o) Any behavior, gestures, or expressions that can reasonably be interpreted as seductive or sexual;

     (p) Sexually demeaning behavior including any verbal or physical contact which can reasonably be interpreted as demeaning, humiliating, embarrassing, threatening or harming a patient or key party;

     (q) Photographing or filming the body or any body part or pose of a patient or key party, other than for legitimate health care purposes; or for the educational or marketing purposes with the consent of the patient; and

     (r) Showing a patient or key party sexually explicit photographs, other than for legitimate health care purposes.

     (2) A dentist shall not:

     (a) Offer to provide health care services in exchange for sexual favors;

     (b) Use health care information to contact the patient or key party for the purpose of engaging in sexual misconduct;

     (c) Use health care information or access to health care information to meet or attempt to meet the dentist's sexual needs.

     (3) A dentist shall not engage in the activities listed in subsection (1) of this section with a former patient or key party if the dentist:

     (a) Uses or exploits the trust, knowledge, influence or emotions derived from the professional relationship; or

     (b) Uses or exploits privileged information or access to privileged information to meet the dentist's personal or sexual needs.

     (4) When evaluating whether a dentist is prohibited from engaging, or attempting to engage, in sexual misconduct, the commission will consider factors, including but not limited to:

     (a) Documentation of a formal termination;

     (b) Transfer of care to another health care provider;

     (c) Duration of the dentist-patient relationship;

     (d) Amount of time that has passed since the last dental health care services to the patient;

     (e) Communication between the dentist and the patient between the last dental health care services rendered and commencement of the personal relationship;

     (f) Extent to which the patient's personal or private information was shared with the dentist;

     (g) Nature of the patient's health condition during and since the professional relationship; and

     (h) The patient's emotional dependence and vulnerability.

     (5) Patient or key party initiation or consent does not excuse or negate the dentist's responsibility.

     (6) These rules do not prohibit:

     (a) Providing health care services in case of emergency where the services cannot or will not be provided by another health care provider;

     (b) Contact that is necessary for a legitimate health care purpose and that meets the standard of care appropriate to that profession; or

     (c) Providing dental services for a legitimate health care purpose to a person who is in a preexisting, established personal relationship with the dentist where there is no evidence of, or potential for, exploiting the patient.

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