N.M. Admin. Code § 16.2.12.27 - SEXUAL ABUSE, EXPLOITATION AND MISCONDUCT

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.

Notes

N.M. Admin. Code § 16.2.12.27

4-11-89...7-1-96; 16 NMAC 2.12.26, 4-1-97, 4-1-97; 8-31-98; A, 2-17-00; 16.2.12.27 NMAC - Rn & A, 16 NMAC 2.12.27, 8-13-01, Adopted by New Mexico Register, Volume XXXIII, Issue 02, January 26, 2022, eff. 2/11/2022