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PROPOSED RULEMAKING

STATE BOARD OF PHYSICAL THERAPY

[49 PA. CODE CH. 40]

Sexual Misconduct

[31 Pa.B. 1470]

   The State Board of Physical Therapy (Board) proposes to adopt regulations regarding sexual misconduct committed by physical therapists, physical therapist assistants and certified athletic trainers (PTs, PTAs and ATCs) by adding §§ 40.301--40.304 to read as set forth in Annex A.

Effective Date

   These regulations 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 3(a) of the Physical Therapy Practice Act (63 P. S. § 1303(a)) (act).

Background and Purpose

   This proposed rulemaking was developed against a background of increasing complaints of sexual misconduct against health care professionals who are licensed by the Bureau of Professional and Occupational Affairs. In this proposal, the Board addresses issues concerning sexual misconduct in the context of the provision of physical therapy and athletic training services.

   The proposed regulations seek to better protect consumers of physical therapy and athletic training services and to provide guidance to the professions by defining terms such as ''patient,'' ''professional relationship,'' ''sexual impropriety'' and ''sexual violation.'' The proposed regulations guide licensees and certificateholders by informing them that conduct defined as a sexual violation or sexual impropriety with a patient during the course of a professional relationship violates standards of professional conduct for PTs, PTAs and ATCs. These proposed regulations guide PTs, PTAs and ATCs by informing them that their professional relationship with a patient exists for a time period beginning with the first professional contact or consultation and ends upon discharge from or discontinuance of services. The proposed regulations notify PTs, PTAs and ATCs that the consent of a patient to a sexual impropriety or violation cannot be a defense in a disciplinary proceeding before the Board and that a PT, PTA or ATC who engages in conduct prohibited by the regulations will not be eligible for placement into an impaired professional program under the act.

Compliance with Executive Order 1996-1, Regulatory Review and Promulgation

   In compliance with Executive Order 1996-1, prior to drafting these proposed regulations, the Board invited interested associations and colleges and universities 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 included the Pennsylvania Physical Therapy Association, Hospital Association of Pennsylvania, Pennsylvania Association of Rehabilitation Facilities, Pennsylvania Athletic Trainers Society, Beaver College, Chatham College, College Misericordia, Duquesne University, Gannon University, Medical College of Pennsylvania and Hahnemann University, Philadelphia College of Pharmacy and Science, Slippery Rock University, Temple University, Thomas Jefferson University, University of Pittsburgh, University of Scranton, Alvernia College, Central Pennsylvania Business School, Community College of Allegheny County Boyce Campus, Harcum College, Lehigh Carbon Community College, Mercyhurst College, Mount Aloysius College, Penn State University, Penn State University Mont Alto Campus, East Stroudsburg University, Lock Haven University, California University of Pennsylvania, University of Pittsburgh, Slippery Rock University, West Chester University, Temple University, Messiah College, Waynesburg College and Mercyhurst College.

Description of Amendments

§ 40.301 (relating to definitions)

   The proposed regulation defines ''patient,'' ''professional relationship,'' ''sexual impropriety'' and ''sexual violation'' as used in §§ 40.302--40.304.

   The term ''patient'' is defined to mean a person other than a spouse or immediate family member, who receives professional services from a PT, PTA or ATC regardless of whether the practitioner receives remuneration for the services.

   The term ''sexual impropriety'' is defined as offenses including making sexually demeaning or sexually suggestive comments about or to a patient, including comments about a patient's body or undergarments; unnecessarily exposing a patient's body or watching a patient dress or undress, unless for therapeutic purposes or the patient specifically requests assistance; examining or touching genitals without the use of gloves when performing an otherwise appropriate examination; discussing or commenting on a patient's sexual performance or requesting details of a patient's sexual history or preferences during an examination or consultation, except when the examination or consultation is pertinent to the issue of sexual function or dysfunction or reproductive health care; soliciting a date from a patient; and volunteering information to a patient about one's sexual problems, preferences or fantasies.

   The term ''sexual violation'' is defined as offenses including sexual intercourse, genital to genital contact and oral to genital contact between a PT, PTA or ATC and a patient during the period of the professional relationship; touching breasts, genitals or any other body part for any purpose other than appropriate examination or treatment; using prolonged or improper examination techniques, or examining a patient when the patient has refused or has withdrawn consent; encouraging a patient to masturbate in the presence of the PT, PTA or ATC or masturbating while the patient is present; and providing or offering to provide treatment in exchange for sexual favors.

   The term ''professional relationship'' for a PT, PTA or ATC means the period of time beginning with the first professional contact or consultation with the patient and ending upon discharge from or discontinuance of services by the PT, PTA or ATC.

§ 40.302 (relating to procedural matters)

   This proposed section of the regulations addresses procedural issues in disciplinary matters before the Board. Subsection (a) would put all licensees and certificateholders on notice that the consent of a patient to a sexual impropriety or violation will not be a defense in a sexual misconduct proceeding. A patient cannot consent to unprofessional forms of treatment. Subsection (b) would put all licensees and certificateholders on notice that neither evidence of specific instances, nor opinion evidence, nor reputation evidence of a patient's past sexual conduct is admissible in proceedings alleging conduct which constitutes a sexual impropriety or violation. Subsection (c) would put all licensees and certificateholders on notice that if a licensee or certificateholder accused of a sexual impropriety or violation raises the defense that the certificateholder's conduct was appropriate to the treatment, the licensee or certificateholder will have to demonstrate the relevancy of the conduct in question to the patient's condition or diagnosis.

§ 40.303 (relating to impaired professional program)

   This proposed provision of the regulations would inform licensees and certificateholders that a licensee or certificateholder subject to disciplinary action for a sexual impropriety or violation will not be eligible for an impaired professional program under the act.

§ 40.304 (relating to disciplinary action)

   This provision would notify licensees and certificate- holders that a PT, PTA or ATC who engages in sexual misconduct will be subject to discipline under the act and § 40.52, § 40.121(a)(6) or § 40.181(a)(6) (relating to unprofessional conduct, physical therapists; refusal, suspension or revocation of certificate; and refusal, suspension or revocation of registration).

Fiscal Impact and Paperwork Requirements

   The proposed regulations should have no fiscal impact and will not impose additional paperwork on the private sector, the general public, the Commonwealth or 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)), the Board submitted a copy of these proposed regulations on March 6, 2001, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Professional Licensure and the Senate Consumer Protection and Professional Licensure Committee. In addition to submitting the regulations, the Board has provided the Committees and IRRC with a copy of a detailed Regulatory Analysis Form prepared by the Board in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.

   Under section 5(g) of the Regulatory Act, if IRRC has any objections to any portion of the proposed regulations, it will notify the Board within 10 days of the close of the Committees' review period. The notification shall specify that regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Board, the General Assembly and the Governor of objections raised.

Public Comment

   Interested persons are invited to submit written comments, suggestions or objections regarding the proposed regulations to Beth Sender Michlovitz, Counsel, State Board of Physical Therapy, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days following publication of the proposed regulations in the Pennsylvania Bulletin. Reference (16A-656) Sexual Misconduct when submitting comments.

JAMES J. IRRANG,   
Chairperson

   Fiscal Note:  16A-656. No fiscal impact; (8) recommends adoption.

   (Editor's Note:  The following subchapter is new. It has been printed in regular type to enhance readability.)

Annex A

TITLE 49.  PROFESSIONAL AND VOCATIONAL STANDARDS

PART I.  DEPARTMENT OF STATE

Subpart A.  PROFESSIONAL AND OCCUPATIONAL AFFAIRS

CHAPTER 40.  STATE BOARD OF PHYSICAL THERAPY

Subchapter E.  SEXUAL MISCONDUCT

Sec.

40.301.Definitions.
40.302.Procedural matters.
40.303.Impaired professional program.
40.304.Disciplinary action.

§ 40.301.  Definitions.

   The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Patient (includes resident and client)--A person, other than a spouse or immediate family member, who receives professional services from a physical therapist, physical therapist assistant or certified athletic trainer, regardless of whether the services are provided for remuneration.

   Professional relationship--For a physical therapist, physical therapist assistant or certified athletic trainer, the relationship shall be deemed to exist for a period of time beginning with the first professional contact or consultation between a physical therapist, physical therapist assistant or certified athletic trainer and a patient and ending upon discharge from or discontinuance of services provided by the physical therapist, physical therapist assistant or certified athletic trainer.

   Sexual impropriety--The term includes the following offenses:

   (i)  Making sexually demeaning or sexually suggestive comments about or to a patient, including comments about a patient's body or undergarments.

   (ii)  Unnecessarily exposing a patient's body or watching a patient dress or undress, unless for therapeutic purposes or the patient specifically requests assistance.

   (iii)  Examining or touching genitals without the use of gloves when performing an otherwise appropriate examination.

   (iv)  Discussing or commenting on a patient's potential sexual performance or requesting details of a patient's sexual history or preferences during an examination or consultation, except when the examination or consultation is pertinent to the issue of sexual function or dysfunction or reproductive health care. Discussion of a patient's sexual practices and preferences shall be fully documented in the patient's chart.

   (v)  Soliciting a date from a patient.

   (vi)  Volunteering information to a patient about one's sexual problems, preferences or fantasies.

   Sexual violation--The term includes the following offenses:

   (i)  Sexual intercourse between a physical therapist, physical therapist assistant or certified athletic trainer and a patient during the professional relationship.

   (ii)  Genital to genital contact between a physical therapist, physical therapist assistant or certified athletic trainer and a patient during the professional relationship.

   (iii)  Oral to genital contact between a physical therapist, physical therapist assistant or certified athletic trainer and a patient during the professional relationship.

   (iv)  Touching breasts, the genitals, or any other part of the body of a patient in a sexual, erotic or romantic manner. Touching for the purpose of an appropriate examination or treatment does not constitute a sexual violation.

   (v)  Encouraging a patient to masturbate in the presence of the physical therapist, physical therapist assistant or certified athletic trainer or masturbating while a patient is present.

   (vi)  Providing or offering to provide treatment in exchange for sexual favors.

§ 40.302.  Procedural matters.

   (a)  The consent of the patient to any sexual impropriety or violation is not a defense to any disciplinary charge for violation of the act or this chapter.

   (b)  Evidence of specific instances, opinion evidence or reputation evidence of a patient's past sexual conduct is not admissible in proceedings brought under §§ 40.52, 40.121 and 40.181 (relating to unprofessional conduct, physical therapists; refusal, suspension or revocation of certificate; and refusal, suspension or revocation of registration). The Board may consider sexual relationships between the physical therapist or the physical therapist assistant or the certified athletic trainer and the patient occurring prior to the professional relationship.

   (c)  A physical therapist or the physical therapist assistant or the certified athletic trainer who attempts to raise as a defense an argument that conduct prohibited as a sexual violation or sexual impropriety was necessary or appropriate to the treatment of any patient shall be required to demonstrate the relevancy of the conduct in question to the patient's condition or diagnosis. Appropriate discussions of sexual matters between a physical therapist, or the physical therapist assistant or the certified athletic trainer and a patient shall be fully documented in patient records.

§ 40.303.  Impaired professional program.

   When the Board is empowered to take disciplinary or corrective action against a physical therapist, physical therapist assistant or certified athletic trainer for conduct defined as a sexual violation or sexual impropriety, the physical therapist, physical therapist assistant or certified athletic trainer will not be eligible for placement into an impaired professional program under section 13 of the act (63 P. S. § 1313).

§ 40.304.  Disciplinary action.

   A physical therapist, physical therapist assistant or certified athletic trainer who engages in sexual impropriety or violation as defined in § 40.301 (relating to definitions) will be subject to disciplinary action under §§ 40.52, 40.121(a)(6) and 40.181(a)(6) (relating to unprofessional conduct; physical therapists; refusal, suspension or revocation of certificate; and refusal, suspension or revocation of registration) and section 11 of the act (63 P. S. § 1311).

[Pa.B. Doc. No. 01-447. Filed for public inspection March 16, 2001, 9:00 a.m.]



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