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NEW JERSEY REGISTER
VOLUME 35, NUMBER 3
MONDAY, FEBRUARY 3, 2003
RULE PROPOSAL

LAW AND PUBLIC SAFETY-
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF NURSING
SEXUAL MISCONDUCT


Proposed New Rule: N.J.A.C. 13:37-8.3

Authorized By: State Board of Nursing, George Hebert, Acting Executive Director.

Authority: N.J.S.A. 45:11-24.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2003-61.

Submit comments by April 4, 2003 to:

George Hebert, Acting Executive Director

State Board of Nursing

PO Box 45010

Newark, New Jersey 07101

The agency proposal follows:

Summary

Pursuant to its rulemaking powers found in N.J.S.A. 45:11-24, the New Jersey Board of Nursing (the Board) proposes new rule N.J.A.C. 13:37-8.3 to codify standards for its licensees prohibiting sexual contact with, or sexual harassment of, clients and patients.

N.J.A.C. 13:37-8.3(a) states that the rule applies to advanced practice nurses, registered professional nurses, licensed practical nurses and homemaker-home health aides. Subsection (b) supplies definitions for the proposed new rule. The subsection defines the terms "board," "client or patient," "client or patient relationship," "sexual contact," "sexual harassment" and "spouse."

Subsection (c) states that a licensee shall not engage in sexual contact with a client or patient with whom he or she has an ongoing client or patient relationship. The Board proposes three standards to determine whether a relationship is ongoing. For homemaker-home health aides and advanced practice nurses, registered professional nurses and licensed practical nurses who are not engaged in psychiatric nursing, a relationship is ongoing unless the last professional service was performed more than three months prior to the date of the sexual contact. For a licensed practical nurse or registered professional nurse engaged in psychiatric nursing, a relationship is ongoing unless the last professional service was performed more than one year prior to the date of the sexual contact. For an advanced practice nurse engaged in psychiatric nursing, a relationship is ongoing unless the last service was performed more than two years prior to the date of sexual contact. The Board proposes a greater period for an "ongoing relationship" for nurses engaged in psychiatric nursing because there is a greater possibility that psychiatric patients will develop an emotional attachment to these nurses based upon the care they receive. This danger is even greater for advanced practice nurses who engage in psychiatric practice because these advance practice nurses may be involved in the counseling of psychiatric patients. The Board wanted to ensure that any attachment a patient develops for a nurse due to psychiatric care is not the basis for a sexual relationship between the patient and the nurse and believes that the lengthened period for an "ongoing relationship" will ensure that this does not happen.

Subsection (d) prohibits a licensee from seeking or soliciting sexual contact with a client, patient or any person in exchange for professional services. Subsection (e) prevents a licensee from engaging in sexual discussion with a client or patient unless that conversation is related to legitimate client or patient needs. Subsection (f) states that a licensee must provide examination conditions which prevent the exposure of the unclothed body of a client or patient, unless necessary for the nursing services rendered. Subsection (g) prevents a licensee from engaging in sexual harassment either in, or outside of, the professional setting. Subsection (h) prohibits a licensee from engaging in any activity performed with a patient or client that could be construed by a reasonable person as serving the licensee's prurient interests or which constitutes an act of sexual abuse. Subsection (i) sets forth that any violation of the proposed new rule constitutes gross or repeated malpractice according to N.J.S.A. 45:1-21(c) or (d), respectively or professional misconduct according to N.J.S.A. 45:1-21(e). Subsection (j) allows a licensee to render services to his or her spouse, which is defined to include long-term commitments, without risking professional misconduct or malpractice under the proposed new rule, as long as those services are rendered pursuant to accepted standards and are not rendered to exploit the spouse or for the sexual gratification of the licensee. Subsection (k) prohibits the defense to a sexual misconduct charge that the client or patient solicited or consented to the sexual contact or that the licensee was in love with the client or patient.

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 which set forth the parameters of proper professional conduct. The proposed rule requires all licensees and certificants of the Board 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 licensees and certificants.

Economic Impact

The Board believes that the proposed new rule may have an economic impact on licensees or certificants who fail to comply with the prohibitions against sexual contact with patients or clients. The proposed rule allows the Board to suspend or revoke any license or certificate upon proof of professional misconduct. This could result in a loss of income for licensees or certificants who violate these proposed rule.

Federal Standards Statement

A Federal standards analysis is not required because there are no Federal standards or requirements applicable to the proposed new rule.

Jobs Impact

The Board believes that the proposed new rule may have an impact on jobs being generated or lost in the State. The proposed rule enables the Board to suspend or revoke a license or certificate for violations of its prohibitions against sexual contact with patients or clients. The proposed rule may impact the jobs of those licensees and certificants who fail to comply with it.

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

If, for the purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., the approximately 182,000 practitioners licensed or certified by the Board are deemed "small businesses," then the following analysis applies.

The Act requires the Board to set forth the reporting, recordkeeping and other compliance requirements of the proposal including the kinds of professional services likely to be needed to comply. The Act further requires the Board to estimate the initial and annual compliance costs of the proposal with an indication of the varying impact on small businesses of differing types and sizes and to outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses.

The proposed new rule does not impose reporting or recordkeeping requirements. No outside professional services should be required to comply with the proposed new rule. The new rule, however, does impose compliance requirements in that a licensee must conform his or her behavior to the provisions of the rule. A licensee cannot engage in sexual contact with a client or patient, a discussion of a sexual nature with a client or patient, sexual harassment or any activity that serves his or her prurient interest. A licensee is required to prevent the unnecessary exposure of the unclothed body of the client or patient.

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

Smart Growth Impact

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:

SUBCHAPTER 8. NURSING PRACTICE


<< NJ ADC 13:37-8.3 >>0.

13:37-8.1 and 8.2 (Reserved)

13:37-8.3 Sexual misconduct

(a) This section shall apply to all advanced practice nurses, registered professional nurses, licensed practical nurses and homemaker-home health aides licensed or certified by the Board.

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

"Board" means the New Jersey Board of Nursing.

"Client or patient" means any person who is the recipient of nursing services or certified homemaker-home health care rendered by a licensee pursuant to N.J.S.A. 45:11-23 et seq.

"Client or patient relationship" means an association between a licensee and client or patient wherein the licensee owes a continuing duty to the client or patient to be available to render nursing services consistent with the licensee's education, training and experience.

"Licensee" means any person licensed or certified by the Board.

"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 licensee's own prurient interest or for sexual arousal or gratification. "Sexual contact" includes the imposition of a part of the licensee's body upon a part of the client or patient's body, sexual penetration, or the insertion or imposition of any object or any part of a licensee or client or patient's body into or near the genital, anal or other opening of the other person's body.

"Sexual harassment" means solicitation of any sexual act, physical advances, or verbal or non-verbal conduct that is sexual in nature, and which occurs in connection with a licensee's activities or role as a provider of nursing services, and that either: is unwelcome, offensive to a reasonable person, or creates a hostile environment, and the licensee 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 conduct of a licensee with an individual whether or not such individual is in a subordinate position to the licensee.

"Spouse" means either the husband, wife or fiancee of the licensee or an individual in a long-term committed relationship with the licensee.

(c) A licensee shall not engage in sexual contact with a client or patient with whom he or she has a client or patient-nurse relationship. The client or patient relationship is considered ongoing for purposes of this section unless:

1. For a homemaker-home health aide, the last homemaker-home health aide service was rendered more than three months prior;

2. For an advanced practice nurse, registered professional nurse or licensed practical nurse, who is not engaged in psychiatric nursing, the last nursing service was rendered more than three months prior;

3. For an advanced practice nurse who practices psychiatric nursing, the last nursing service was rendered more than two years prior; or

4. For a registered professional nurse or alicensed practical nurse who practices psychiatric nursing, the last nursing service was rendered more than one year prior.

(d) A licensee shall not seek or solicit sexual contact with a client or patient with whom he or she has a client or patient relationship and shall not seek or solicit sexual contact with any person in exchange for nursing or homemaker-home health aide services.

(e) A licensee shall not engage in any discussion of an intimate sexual nature with a client or patient, unless that discussion is related to legitimate client or patient needs. Such discussion shall not include disclosure by the licensee of his or her own intimate sexual relationships.

(f) A licensee shall provide privacy and examination conditions which prevent the exposure of the unclothed body of the client or patient unless necessary to the nursing or homemaker-home health aide services rendered.

(g) A licensee shall not engage in sexual harassment, whether in a professional setting or outside of the professional setting.

(h) A licensee shall not engage in any activity performed with a patient or client which would lead a reasonable person to believe that the activity serves the licensee's personal prurient interests or is for the sexual arousal the sexual or gratification of the licensee or client or patient or which constitutes an act of sexual abuse.

(i) Violation of any of the prohibitions or directives set forth in (c) through (h) above shall be deemed to constitute gross or repeated malpractice pursuant to N.J.S.A. 45:1-21(c) or (d), respectively, or professional misconduct pursuant to N.J.S.A. 45:1-21(e).

(j) Nothing in this section shall be construed to prevent a licensee from rendering nursing or homemaker-home health aide services to a spouse, providing that the rendering of such nursing services is consistent with accepted standards and that the performance of nursing or homemaker-home health aide services is not utilized to exploit the client or patient for the sexual arousal or sexual gratification of the licensee.

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

1. The client or patient solicited or consented to sexual contact with the licensee; or

2. The licensee was in love with or had affection for the client or patient.

SUBCHAPTERS <<-8.->><<+9.+>> THROUGH 12. (RESERVED)

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