State of New Jersey
Department of Law and Public Safety
Division of Consumer Affairs


New Jersey Register
Volume 33, Number 21
Monday, November 5, 2001
Rule Proposal

Law And Public Safety
Division Of Consumer Affairs
New Jersey State Board Of Optometrists
Sexual Misconduct
Proposed New Rule: N.J.A.C. 13:38-2.14

Authorized By: State Board of Optometrists, Susan Gartland, Executive Director.

Authority: N.J.S.A. 45:12-4.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2001-420.

Submit written comments by January 4, 2002 to:

Susan Gartland, Executive Director

State Board of Optometrists

124 Halsey Street

PO Box 45012

Newark, New Jersey 07101

The agency proposal follows:

Summary

Pursuant to the rulemaking authority set forth in N.J.S.A. 45:12-4, the State Board of Optometrists (the Board) proposes new rule N.J.A.C. 13:38- 2.14 to codify established standards for optometrists prohibiting sexual contact with patients. The Board intends to clarify conduct which is gross or repeated malpractice pursuant to N.J.S.A. 45:1-21(c) or (d) or professional misconduct pursuant to N.J.S.A. 45:1-21(e). This sexual misconduct rule is substantially similar to the sexual misconduct rules that have been already adopted by other health care professional boards, such as medical examiners, chiropractors, and respiratory care professionals. This rule is in compliance with the Division of Consumer Affairs' initiative to ensure that Boards promulgate regulatory guidance to their licensees.

The proposed new rule has a definition section to define the terms as used in this section.

The proposed new rule prohibits sexual contact between an optometrist and a patient with whom he or she has an ongoing patient-physician relationship. The relationship is considered ongoing unless actively terminated by a prior written notice to the patient and documentation in the patient record, or unless more than one year has elapsed since the last optometric service was performed. The Board believes that a formal termination of the optometric relationship is the minimum acceptable action necessary prior to engaging in a personal intimate relationship.

The proposed new rule also prohibits a licensee from seeking or soliciting sexual contact with a patient with whom he or she has a patient-physician relationship. The proposed new rule also prohibits a licensee from seeking or soliciting sexual contact with any person in exchange for professional services.

The proposed new rule prohibits licensees from engaging in sexual harassment whether in a professional setting such as an office, hospital, health care facility, or outside of the professional setting. Additionally, licensees may not engage in any discussion of intimate sexual matters with their patients unless those discussions are germane to the professional relationship. Activities, such as voyeurism or exposure of the genitalia of the licensee which serve the licensee's or patient's prurient interests, sexual arousal or gratification or any actions which result in sexual abuse of either party, are also prohibited. A licensee may render optometric examinations or treatment to a spouse, providing that the rendering of such service is consistent with accepted standards of optometric care and that the performance of optometric services are not utilized to exploit the patient for the sexual arousal or sexual gratification of the licensee. A licensee can not use the defense that the patient solicited or consented to sexual contact with the licensee nor that the licensee is in love with or held affection for the patient.

As the Commission has provided a 60-day comment period on this notice of proposal, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

Mandating optometrists to comply with the proposed new rule will have a positive impact upon the public by increasing confidence in the optometric profession and enhancing the quality of optometric services by setting forth the parameters of appropriate conduct. The rule will also provide needed protection to patients, employees and co-workers of licensed optometrists from sexual harassment and sexual contact. Patients will be able to receive optometric services without fear of unwanted sexual contact or harassment. Employees and co-workers will be granted workplace protection for unwanted advances and harassment, creating a safer and more productive workplace environment.

Economic Impact

The proposed new rule should have no significant adverse economic impact upon the regulated community or the public. The proposed new rule merely codifies a standard of behavior which prohibits the licensee from engaging in sexual conduct with a patient and/or sexual harassment with a patient, co-worker, employee or supervisee. To the extent that there may be costs involved for an optometrist to terminate the patient-physician relationship, the minimal costs are greatly outweighed by the need to protect the safety and welfare of the public by prohibiting conduct which is considered inappropriate in the context of the professional relationship. The proposed new rule may have an economic impact upon licensees who fail to abide by the proposed standards, when subjected to disciplinary action by the Board including the assessment of penalties.

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 proposed new rule may have an impact on jobs. The rule permits the Board to suspend or revoke an optometrist's license pursuant to N.J.S.A. 45:1- 21(c), (d) and (e) for violations of the new rule. Licensees who fail to adhere to the requirements of the proposed new rule may have their licenses revoked or suspended, thus preventing them from the opportunity to work, hence impacting upon their jobs.

Agriculture Industry Impact

The Board does not anticipate that the proposed new rule will have any impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

If, for the purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., licensed optometrists are considered "small businesses" for the purposes of the Act, the following analysis applies.

The proposed new rule imposes recordkeeping and compliance requirements upon each optometrist licensed by the Board, as discussed in the Summary above. Every licensee is required to comply with the proposed new rule or the licensee is subject to suspension or revocation of his or her license. The costs associated with the recordkeeping requirements, such as documenting the termination of the patient-physician relationship in the patient's record, will be minimal. As set forth in the Economic Impact above, the proposed standards may also affect licensees who fail to comply. Since the proposed new rule furthers the health, welfare and safety of the public, any costs incurred by any party to comply with the proposed new rule is greatly outweighed by this benefit.

No professional services are necessary to comply with the proposed new rule.

Because proposed new rule N.J.A.C. 13:38-2.14 furthers the welfare and safety of the public in its dealings with optometrists, the Board believes that the new rule should be applied uniformly to all optometrists and no differing compliance standards are proposed.

Full text of the proposal follows:

<< NJ ADC 13:38-2.14 >>

13:38-2.14 Sexual misconduct

(a) The purpose of this section is to identify for optometrists licensed by the Board of Optometrists the types of conduct which shall be deemed sexual misconduct.

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

"Licensee" means any person licensed to practice optometry in the State of New Jersey.

"Patient" means any person who is the recipient of a professional service rendered by a licensee for purposes of diagnosis, treatment or consultation relating to treatment. "Patient" for purposes of this section also means any person who is the subject of a professional examination even if the purpose of that examination is unrelated to treatment.

"Patient-physician relationship" means an association between an optometric physician and a patient wherein the optometrist owes a continuing duty to the patient to be available to render professional services consistent with his or her training and experience. The performance of any professional service including, but not limited to, the issuance of a prescription or authorization of a refill of a prescription is deemed to be a professional service and evidence of a patient-physician relationship.

"Sexual contact" means knowingly touching 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, but is not limited to, the imposition of a part of the licensee's body upon a part of the patient's body, sexual penetration, or the insertion or imposition of any object or any part of a licensee or patient'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 a patient's body which is necessary for the performance of a generally accepted and recognized optometric procedure.

"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 optometric services, and that either: is unwelcome or offensive to a reasonable person, or creates a hostile workplace 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, but is not limited to, conduct of a licensee with a patient, co-worker, employee, student or supervisee whether or not such individual is in a subordinate position to the licensee.

"Spouse" means either the husband or wife 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 patient with whom he or she has a patient-physician relationship. The patient-physician relationship is considered ongoing for purposes of this section in all contexts unless:

1. Professional services are actively terminated by way of written notice to the patient and is documented in the patient record; or

2. The last professional services were rendered more than one year ago.

(d) A licensee shall not seek or solicit sexual contact with a patient with whom he or she has a patient-physician relationship and shall not seek or solicit sexual contact with any person in exchange for professional services.

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

(f) A licensee shall not engage in sexual harassment whether in a professional setting such as an office, hospital, health care facility, or outside of the professional setting.

(g) A licensee shall not engage in any other activity, such as, but not limited to, voyeurism or exposure of the genitalia of the licensee, which would lead a reasonable person to believe that the activity serves the licensee's personal prurient interest or is for the sexual arousal, the sexual gratification or the sexual abuse of the licensee or patient.

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

(i) Nothing in this section shall be construed to prevent a licensee from rendering optometric examinations or treatment to a spouse, providing that the rendering of such service is consistent with accepted standards of optometric care and that the performance of optometric services is not utilized to exploit the patient for the sexual arousal or sexual gratification of the licensee.

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

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

2. The licensee is in love with or held affection for the patient.




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Posted November 5, 2001