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:

1. A. the amount of time that has passed since care was terminated;
2. B. the nature and duration of the care;
3. C. the circumstances of termination;
4. D. the patient’s personal history;
5. E. the patient’s mental status;
6. F. the likelihood of adverse impact on the patient and others; and

7. 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. (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. (2) failure to maintain appropriate professional boundaries even if the patient is perceived as seductive;
   3. (3) failure to provide the patient with an opportunity to undress and dress in private;
   4. (4) failure to provide the patient with the opportunity to wear underwear or a smock during treatment;
   5. (5) failure to obtain informed verbal consent before undraping or treating the patient’s breasts, buttocks or genitals;
8. (6) use of inappropriate parts of the practitioner’s body to brace the patient;
9. (7) palpation beyond that which is necessary to accomplish a competent examination or treatment;

10. (8) sexual repartee, innuendo, jokes or flirtation;

    1. (9) sexual comments about the patient’s person or clothing;
    2. (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
    3. (11) attempting to diagnose or treat a sexual issue beyond the practitioner’s scope of training or practice.

[16.2.12.27 NMAC - Rp, 16.2.12.27 NMAC, 2/11/2022]