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NEW JERSEY REGISTER
VOLUME 38, ISSUE 14
ISSUE DATE: JULY 17, 2006
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
State Board Of Medical Examiners

Proposed New Rule: N.J.A.C. 13:35-10.8

Athletic Trainers Sexual Misconduct

Authorized By: State Board of Medical Examiners, William Roeder, Executive Director.

Authority: N.J.S.A. 45:9-37.38.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2006-229.

Submit comments by September 15, 2006 to:
William Roeder, Executive Director
State Board of Medical Examiners
P.O. Box 183
Trenton, NJ 08625

The agency proposal follows:

Summary

Pursuant to its rulemaking powers found at N.J.S.A. 45:9-37.38, the State Board of Medical Examiners (the Board), based upon its consultation with the Athletic Training Advisory Committee, proposes new rule N.J.A.C. 13:35-10.8 to codify standards for its licensed athletic trainers prohibiting sexual contact with, or sexual harassment of, athletes. This rule closely conforms to sexual misconduct rules adopted by other professional licensing boards and committees.

The proposed new rule provides definitions for the terms "athlete," "athlete-athletic trainer relationship," "sexual contact," "sexual harassment" and "spouse." The proposed new rule prohibits a licensed athletic trainer from seeking or soliciting sexual contact with an athlete with whom he or she has an athlete-athletic trainer relationship. The rule also prohibits a licensed athletic trainer from seeking or soliciting sexual contact with any individual in exchange for professional services. A licensed athletic trainer is prohibited from engaging in a discussion of an intimate sexual nature with someone with whom the licensed athletic trainer has an athlete-athletic trainer relationship. A licensed athletic trainer is required to provide draping to prevent the unnecessary exposure of an unclothed athlete during an examination of an injured area.

A licensed athletic trainer is prohibited from engaging in sexual contact with a student who is enrolled in a high school where the licensed athletic trainer is employed. A licensed athletic trainer is also prohibited from engaging in sexual contact with an athlete with whom he or she has an ongoing athlete-athletic trainer relationship. A licensed athletic trainer cannot engage in sexual harassment or in any other activity which serves his or her prurient interests, is for his or her sexual arousal or gratification, or is an act of sexual abuse. A violation of any of these requirements or prohibitions is professional misconduct. The proposed new rule permits a licensed athletic trainer to provide athletic training services to his or her spouse, but such services must be rendered pursuant to accepted standards and cannot be used to exploit the spouse or for the sexual gratification of the licensee. It is not a defense to any sexual misconduct charge that the athlete solicited or consented to the sexual contact or that the licensed athletic trainer was in love with the athlete.

The Board has determined that the comment period for this proposal shall be 60 days; therefore, pursuant to N.J.A.C.1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Social Impact

The Board believes that the proposed new rule advances the health, safety and welfare of New Jersey citizens by establishing clear guidelines for proper professional conduct. The proposed rule requires all licensed athletic trainers to adhere to a high standard of appropriate behavior which will increase public confidence and trust in the profession and enhance the quality of care provided by licensed athletic trainers.

Economic Impact

A licensee that violates the provisions of proposed N.J.A.C. 13:35-10.8 may be subject to discipline which includes monetary penalties or possible loss of license, which would impose an economic impact on the licensee. The Board does not believe that the proposed new rule will have any other economic impact.

Federal Standards Statement

A Federal standards analysis is not required because the proposed new rule does not involve any Federal standards or requirements.

Jobs Impact

The Board does not believe that the proposed new rule will have an impact on jobs in New Jersey.

Agriculture Industry Impact

The Board does not believe that the proposed new rule will have any impact on the agriculture industry of this State.

Regulatory Flexibility Analysis

Although the Board believes that most licensees are employees, it is possible that some licensees are independent contractors and, therefore, may be considered a small business within the meaning of the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq. Therefore, the following analysis applies.

The Board does not believe that the proposed new rule will impose any costs. The Board does not believe that licensed athletic trainers will need to employ any professional services to comply with the requirements of the proposal. The proposed new rule imposes no reporting or recordkeeping requirements upon licensed athletic trainers. The proposed new rule imposes compliance requirements regarding licensed athletic trainers interactions with athletes as outlined in the Summary above.

The Board believes that, because the proposed new rule protects the health, safety and welfare of athletes by preventing licensed athletic trainers from engaging in sexual misconduct, the proposed new rule must be applied uniformly to all licensed athletic trainers.

Smart Growth Impact Statement

The Board does not anticipate that the proposed new rule will have any impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan, otherwise known as the State Plan.

Full text of the proposed new rule follows (additions indicated in boldface thus; deletion indicated in brackets [thus]):

13:35-10.8     [(RESERVED)] Sexual misconduct

(a) The purpose of this section is to identify for licensed athletic trainers conduct which shall be deemed sexual misconduct.

(b) As used in this section, the following terms have the following meanings, unless the context indicates otherwise:

"Athlete" means any person who is the recipient of athletic training services rendered by a licensed athletic trainer as set forth in N.J.A.C. 13:35-10.4.

"Athlete-athletic trainer relationship" means a relationship between a licensed athletic trainer and an athlete wherein the licensed athletic trainer is responsible to render athletic training services for the athlete.

"Sexual contact" means the knowing touching of a person's body directly or through clothing, where the circumstances surrounding the touching would be construed by a reasonable person to be motivated by the licensed athletic trainer's own prurient interest or for sexual arousal or gratification. "Sexual contact" includes, but is not limited to, the imposition of a part of the licensed athletic trainer's body upon the part of the athlete's body, sexual penetration, or the insertion or any imposition of any object or any part of a licensed athletic trainer's or athlete's body into or near the genital, anal or other opening of the other person's body. "Sexual contact" does not include the touching of an athlete's body which is necessary during a generally accepted and recognized athletic training procedure.

"Sexual harassment" means solicitation of any sexual act, physical advances, or verbal or nonverbal conduct that is sexual in nature, and which occurs in connection with a licensed athletic trainer's activities or role as a provider of athletic training services, and that either is unwelcome, offensive to a reasonable person, or creates a hostile workplace environment, and the licensed athletic trainer knows, should know, or is told this; or is sufficiently severe or intense to be abusive to a reasonable person in that context. "Sexual harassment" may consist of a single extreme or severe act or of multiple acts and may include, but is not limited to, conduct of a licensed athletic trainer with an athlete, co-worker, employee, student or supervisee, whether or not such individual is in a subordinate position to the licensed athletic trainer.

"Spouse" means the husband, wife or fiancee of the licensed athletic trainer or an individual involved in a long-term committed relationship with the licensed athletic trainer. For the purposes of the definition of "spouse," a long-term committed relationship means a relationship which is at least six months in duration.

(c) A licensed athletic trainer shall not seek or solicit sexual contact with an athlete with whom he or she has an athlete-athletic trainer relationship and shall not seek or solicit sexual contact with any person in exchange for professional services.

(d) A licensed athletic trainer shall not engage in any discussion of an intimate sexual nature with an athlete with whom the licensed athletic trainer has an athlete-athletic trainer relationship unless that discussion is directly related to a proper athletic training purpose. Such discussion shall not include disclosure by the licensed athletic trainer of his or her own sexual relationships.

(e) A licensed athletic trainer shall provide draping or other measures which prevent the unnecessary exposure of the unclothed body of the athlete while examining the injured area.

(f) A licensed athletic trainer shall not engage in sexual contact with a student who is enrolled in a high school at which the licensed athletic trainer is employed.

(g) If a licensed athletic trainer has an athlete-athletic trainer relationship, the licensed athletic trainer shall not engage in sexual contact with the athlete if either:

1. Such sexual contact is prohibited by (f) above; or

2. The athlete-athletic trainer relationship is ongoing. The athlete-athletic trainer relationship is ongoing for the purposes of this section, unless:

i. Athletic training services are terminated by way of written notice to the athlete, the termination is documented in the licensed athletic trainer's records and alternative athletic training services are provided; or

ii. The athlete has left the school, college, university or team for which the licensed athletic trainer works.

(h) A licensed athletic trainer shall not engage in sexual harassment either within or outside of the professional setting.

(i) A licensed athletic trainer shall not engage in any other activity which would lead a reasonable person to believe that the activity serves the licensed athletic trainer's personal prurient interests or which is for the sexual arousal, or sexual gratification of the licensed athletic trainer or athlete or which is an act of sexual abuse.

(j) Violation of any of the prohibitions or directives set forth in (c) through (i) above shall constitute professional misconduct pursuant to N.J.S.A. 45:1-21(e).

(k) Nothing in this section shall be construed to prevent a licensed athletic trainer from rendering athletic training services to a spouse, providing that the rendering of such athletic training services is consistent with accepted standards of athletic training and that the performance of athletic training is not utilized to exploit the athlete spouse for the sexual arousal or sexual gratification of the licensed athletic trainer.

(l) It shall not be a defense to any action under this section that:

1. The athlete solicited or consented to sexual contact with the licensed athletic trainer; or

2. The licensed athletic trainer is in love with or had affection for the athlete.




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