PROPOSAL
Maryland Register
Issue Date: February 1, 2019
Volume 46 • Issue 3 • Page 133-134
Title 10
MARYLAND DEPARTMENT OF HEALTH
Subtitle 32 BOARD OF PHYSICIANS
10.32.17 Sexual Misconduct
Authority: Health Occupations Article, §1-212, Annotated Code of Maryland
Notice of Proposed Action
[19-031-P]
The Secretary of Health proposes to amend Regulations .01—.03 under COMAR 10.32.17 Sexual Misconduct.
This action was considered at a public meeting held on August 22, 2018, notice of which was given by publication on the Maryland Board of Physicians’ Website at https://www.mbp.state.md.us/forms/Aug18Bagenda.pdf from August 7, 2018, through August 22, 2018, pursuant to General Provisions Article, §3-302(c), Annotated Code of Maryland.
This action also was considered at a public meeting held on October 31, 2018, notice of which was given by publication on the Maryland Board of Physicians’ Website at https://www.mbp.state.md.us/forms/Oct18Fullagenda.pdf from October 19, 2018, through October 31, 2018, pursuant to General Provisions Article, §3-302(c), Annotated Code of Maryland.
Statement of Purpose
The purpose of this action is to:
(1) Revise the scope under COMAR 10.32.17.01;
(2) Add or delete certain definitions under COMAR 10.32.17.02;
(3) Move language from certain deleted definitions to COMAR 10.32.17.03;
(4) Update COMAR 10.32.17.03 to state that sexual misconduct includes, but is not limited to, sexual harassment of a “patient, key third party, employee, student, or coworker,” regardless of whether the sexual harassment occurs inside or outside of a professional setting; and
(5) Update COMAR 10.32.17.03 to include factors to consider in determining whether a sexual or romantic relationship with a key third party or former patient is prohibited.
Comparison to Federal Standards
There is no corresponding federal standard to this proposed action.
Estimate of Economic Impact
The proposed action has no economic impact.
Economic Impact on Small Businesses
The proposed action has minimal or no economic impact on small businesses.
Impact on Individuals with Disabilities
The proposed action has no impact on individuals with disabilities.
Opportunity for Public Comment
Comments may be sent to Jake Whitaker, Acting Director, Office of Regulation and Policy Coordination, Maryland Department of Health, 201 West Preston Street, Room 512, Baltimore, MD 21201, or call 410-767-6499 (TTY 800-735-2258), or email to mdh.regs@maryland.gov, or fax to 410-767-6483. Comments will be accepted through March 4, 2019. A public hearing has not been scheduled.
.01 Scope.
This chapter prohibits sexual misconduct [against patients or key third parties] by [individuals licensed or certified under Health Occupations Article, Titles 14 and 15, Annotated Code of Maryland.] health care practitioners.
.02 Definitions.
A. (text unchanged)
B. Terms Defined.
(1) “Health care practitioner” means an individual licensed under Health Occupations Article, Titles 14 and 15, Annotated Code of Maryland.
[(1)] (2) Key Third Party.
(a) (text unchanged)
(b) “Key third party” includes, but is not limited to the following individuals:
(i)—(ii) (text unchanged)
(iii) [Parent] Family member;
(iv)—(vi) (text unchanged)
[(2) Sexual Impropriety.
(a) “Sexual impropriety” means behavior, gestures, or expressions that are seductive, sexually suggestive, or sexually demeaning to a patient or a key third party regardless of whether the sexual impropriety occurs inside or outside of a professional setting.
(b) “Sexual impropriety” includes, but is not limited to:
(i) Failure to provide privacy for disrobing;
(ii) Performing a pelvic or rectal examination without the use of gloves;
(iii) Using the health care practitioner-patient relationship to initiate or solicit a dating, romantic, or sexual relationship; and
(iv) Initiation by the health care practitioner of conversation regarding the health care practitioner’s sexual problems, sexual likes or dislikes, or fantasies.
(3) “Sexual misconduct” means a health care practitioner’s behavior toward a patient, former patient, or key third party, which includes:
(a) Sexual impropriety;
(b) Sexual violation; or
(c) Engaging in a dating, romantic, or sexual relationship which violates the code of ethics of the American Medical Association, American Osteopathic Association, American Psychiatric Association, or other standard recognized professional code of ethics of the health care practitioner’s discipline or specialty.
(4) Sexual Violation.
(a) “Sexual violation” means health care practitioner-patient or key third party sex, whether or not initiated by the patient or key third party, and engaging in any conduct with a patient or key third party that is sexual or may be reasonably interpreted as sexual, regardless of whether the sexual violation occurs inside or outside of a professional setting.
(b) “Sexual violation” includes, but is not limited to:
(i) Sexual intercourse, genital to genital contact;
(ii) Oral to genital contact;
(iii) Oral to anal contact or genital to anal contact;
(iv) Kissing in a romantic or sexual manner;
(v) Touching the patient’s breasts, genitals, or any sexualized body part;
(vi) Actively causing the patient or key third party to touch the health care practitioner’s breasts, genitals, or any sexualized body part;
(vii) Encouraging the patient to masturbate in the presence of the health care practitioner or masturbation by the health care practitioner while the patient is present;
(viii) Offering to provide practice-related services, such as drugs, in exchange for sexual favors; and
(ix) Intentionally exposing the health care practitioner’s breasts, genitals, or any sexualized body part.]
(3) Sexual Contact.
(a) “Sexual contact” means the knowing touching directly or through clothing, where the circumstances surrounding the touching would be construed by a reasonable person to be motivated by the health care practitioner’s own prurient interest or for sexual arousal or gratification.
(b) “Sexual contact” includes, but is not limited to:
(i) Sexual intercourse, genital to genital contact;
(ii) Oral to genital contact;
(iii) Oral to anal contact or genital to anal contact;
(iv) Kissing in a romantic or sexual manner; or
(v) Nonclinical touching of breasts, genitals, or any other sexualized body part.
(4) “Sexual harassment” means an unwelcome sexual advance, request for sexual favor, or other verbal or physical conduct of a sexual nature.
.03 Sexual Misconduct.
A. [Individuals licensed or certified under Health Occupations Article, Titles 14 and 15, Annotated Code of Maryland,] Health care practitioners may not engage in sexual misconduct.
B. Health Occupations Article, §§14-404(a)(3), 14-5A-17(a)(3), 14-5B-14(a)(3), 14-5C-17(a)(3), 14-5D-14(a)(3), 14-5E-16(a)(3), 14-5F-18(a)(19), and [15-314(3),] 15-314(a)(3),Annotated Code of Maryland, includes, but is not limited to, sexual misconduct.
C. Sexual misconduct includes, but is not limited to:
(1) Engaging in sexual harassment of a patient, key third party, employee, student, or coworker regardless of whether the sexual harassment occurs inside or outside of a professional setting;
(2) Failing to provide privacy for disrobing;
(3) Performing a pelvic or rectal examination without the use of gloves;
(4) Discussing the health care practitioner’s sexual problems, sexual likes or dislikes, or fantasies;
(5) Using the health care practitioner-patient relationship to initiate or solicit a dating, romantic, or sexual relationship;
(6) Engaging in a dating, romantic, or sexual relationship which violates §D of this regulation or the code of ethics of the American Medical Association, American Osteopathic Association, American Psychiatric Association, or other professional code of ethics;
(7) Participating in any form of sexual contact with a patient or key third party;
(8) Having nonconsensual sexual contact with a coworker or employee;
(9) Causing a patient or key third party to touch the health care practitioner’s breasts, genitals, or any sexualized body part;
(10) Encouraging a patient or key third party to masturbate in the presence of the health care practitioner or masturbation by the health care practitioner while a patient or key third party is present;
(11) Offering to provide practice-related services in exchange for sexual favors; and
(12) Exposing the health care practitioner’s breasts, genitals, or any sexualized body part.
D. Sexual or Romantic Relationships. A health care practitioner may not engage in sexual behavior with:
(1) A current patient;
(2) A key third party if the key third party’s decisions directly affect the health and welfare of the patient or if the relationship could otherwise compromise the patient’s care based on the following considerations, which include, but are not limited to:
(a) The nature of the patient’s medical problem and the likely effect on patient care;
(b) The length of the professional relationship;
(c) The degree of emotional dependence on the health care practitioner;
(d) The importance of the clinical encounter to the key third party and the patient; and
(e) Whether the health care practitioner-patient relationship can be terminated in keeping with ethics guidance and what implications doing so would have for the patient; and
(3) A former patient upon consideration of the following factors:
(a) Duration of the health care practitioner-patient relationship;
(b) Nature of the health care services provided;
(c) Lapse of time since the health care practitioner-patient relationship ended;
(d) Extent to which the former patient confided personal or private information to the health care practitioner;
(e) Degree of emotional dependence that the former patient has or had on the health care practitioner;
(f) Extent to which the health care practitioner used or exploited the trust, knowledge, emotions, or influence derived from the previous health care practitioner-patient relationship; and
(g) Whether the health care practitioner-patient relationship was terminated in order to enter into a romantic or sexual relationship.
ROBERT R. NEALL
Secretary of Health
