Subchapter E. SEXUAL MISCONDUCT


Sec.


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

Authority

   The provisions of this Subchapter E issued under section 3(a) of the Physical Therapy Practice Act (63 P. S. §  1303(a)), unless otherwise noted.

Source

   The provisions of this Subchapter E adopted August 9, 2002, effective August 10, 2002, 32 Pa.B. 3942, unless otherwise noted.

§ 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 the spouse of the physical therapist or physical therapist assistant, who receives professional services from the physical therapist or physical therapist assistant regardless of whether the services are provided for remuneration.

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

   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.

     (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 or physical therapist assistant and a patient during the professional relationship.

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

     (iii)   Oral to genital contact between a physical therapist or physical therapist assistant 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 or physical therapist assistant or masturbating while a patient is present.

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

Cross References

   This section cited in 49 Pa. Code §  40.304 (relating to disciplinary actions).

§ 40.302. Procedural matters.

 (a)  The consent of the patient to any sexual impropriety or sexual 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 and 40.181 (relating to unprofessional conduct; physical therapists; and refusal, suspension or revocation of registration). The Board may consider sexual relationships between the physical therapist or the physical therapist assistant and the patient occurring prior to the professional relationship.

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



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