New Mexico Administrative Code › Title 16 - OCCUPATIONAL AND PROFESSIONAL LICENSING › Chapter 2 - ACUPUNCTURE AND ORIENTAL MEDICINE PRACTITIONERS › Part 12 - GROUNDS FOR DENIAL, SUSPENSION OR REVOCATION OF LICENSE › Section 16.2.12.27 - SEXUAL ABUSE, EXPLOITATION AND MISCONDUCT

Current through Register Vol. 35, No. 13, July 16, 2024
Pursuant to the Act, Paragraph (5) of Subsection A of
				  Section
				  61-14A-17
				  NMSA 1978, a doctor of oriental medicine, an applicant, a temporary licensee,
				  an applicant for temporary licensure or an extern shall be guilty of
				  unprofessional conduct who commits an act of sexual abuse, exploitation or
				  misconduct, by exercising influence within a doctor/patient or teacher/student
				  relationship for purposes of engaging a patient or student in sexual activity
				  or who engages in sexual contact or the suggestion of sexual contact with a
				  patient or student during the doctor/patient or teacher/student relationship
				  within an educational program, unless a sexual relationship with the patient or
				  student preceded the professional relationship as doctor/patient or
				  teacher/student. If the licensee, temporary licensee or extern and the patient
				  mutually desire a personal/sexual relationship, the licensee, temporary
				  licensee or extern shall immediately terminate the professional relationship
				  with a written and signed termination of care agreement, make an appropriate
				  referral to another health care practitioner, and wait before engaging in such
				  a relationship for a time when it is reasonably certain based on the factors
				  enumerated below that the professional relationship has no influence on the
				  personal/sexual relationship. The licensee, temporary licensee or extern who
				  engages in such a personal/sexual relationship, following the cessation or
				  termination of treatment, bears the burden of providing proof that there has
				  been no exploitation, in light of all relevant factors, including:
A. the amount of time that has passed since
				care was terminated;
B. the nature
				and duration of the care;
C. the
				circumstances of termination;
D.
				the patient's personal history;
E.
				the patient's mental status;
F. the
				likelihood of adverse impact on the patient and others; and
G. any statements or actions made by the
				licensee, temporary licensee or extern during the course of care suggesting or
				inviting the possibility of a post termination relationship with the patient.
				Each of the following acts constitutes sexual abuse, exploitation or
				misconduct:
(1) physical or verbal sexual
				contact or intercourse during the course of the professional relationship,
				whether in or out of the practitioner's place of business;
(2) failure to maintain appropriate
				professional boundaries even if the patient is perceived as
				seductive;
(3) failure to provide
				the patient with an opportunity to undress and dress in private;
(4) failure to provide the patient with the
				opportunity to wear underwear or a smock during treatment;
(5) failure to obtain informed verbal consent
				before undraping or treating the patient's breasts, buttocks or
				genitals;
(6) use of inappropriate
				parts of the practitioner's body to brace the patient;
(7) palpation beyond that which is necessary
				to accomplish a competent examination or treatment;
(8) sexual repartee, innuendo, jokes or
				flirtation;
(9) sexual comments
				about the patient's person or clothing;
(10) inquiry into the patient's sexual
				history or behavior beyond that which is necessary for a competent examination,
				diagnosis or treatment; the practitioner shall not be unnecessarily intrusive;
				the practitioner shall not verbalize any unprofessional comments concerning the
				patient's sexual history or behavior; and
(11) attempting to diagnose or treat a sexual
				issue beyond the practitioner's scope of training or practice.