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VOLUME 37, ISSUE 17
ISSUE DATE: SEPTEMBER 6, 2005
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS

37 N.J.R. 3268(a)

Proposed Readoption with Amendments: N.J.A.C. 13:45C

Uniform Regulations

Licensee Duty to Cooperate and Comply with Board Orders

Authorized By: Peter C. Harvey, Attorney General, by Mariellen Dugan, Acting Attorney General.

Authority: N.J.S.A. 5:8-30.2, 45:1-17(b) and 52:17B-122.

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

Proposal Number: PRN 2005-318.

Submit written comments by November 5, 2005 to:
Kimberly Ricketts, Director
New Jersey Division of Consumer Affairs
PO Box 45027
Newark, NJ 07101

The agency proposal follows:

Summary

Pursuant to the provisions of N.J.S.A. 52:14B-5.1c, the rules at N.J.A.C. 13:45C will expire on January 29, 2006. As required by Executive Order No. 66(1978), the Division of Consumer Affairs (the Division) has reviewed these rules and determined them to be necessary, reasonable and proper for the purpose for which they were originally promulgated, namely, to establish a licensee's duty to cooperate and comply with orders of a board, committee or sub-unit within the Division. The rules additionally set forth the specific conduct that is deemed to be a failure to cooperate and provide that certain privileges are not available in investigative or disciplinary proceedings. The Division notes that the Attorney General is proposing the readoption of these rules pursuant to N.J.S.A. 45:1-17(b) and will file the appropriate notice to all licensing entities within the Division of Consumer Affairs.

A summary of each rule in the subchapter and the proposed amendments follow:

N.J.A.C. 13:45C:1-1 states the scope of the rule, to whom it applies and defines the term "licensee." The Attorney General proposes to amend N.J.A.C. 13:45C-1.1 to delete the reference in N.J.A.C. 13:45C-1.1(b)2 to the "Office of Professional Boards/Occupational Boards." That term is superfluous since the professional and occupational boards and committees are within the Division. Similarly, N.J.A.C. 13:45C-1.1(b)3 is proposed to be deleted to eliminate the reference to the "Office of Consumer Protection" since licensees, permittees, certificants and registrants of what is referred to as the Office of Consumer Protection are, in fact, licensees, permittees, certificants and registrants of the Division and are, therefore, covered in paragraph (b)1.

N.J.A.C. 13:45C-1.2 details the licensee's duty to cooperate in investigative inquiries and the consequences of a licensee's failure to cooperate.

N.J.A.C. 13:45C-1.3 enumerates the conduct that is deemed a failure to cooperate, including the failure to provide information, records, attend scheduled proceedings and answer board inquiries. The Attorney General proposes to amend subsection (a) to give the Director or a board or committee more flexibility by providing for disciplinary action other than suspension or revocation of licensure if a licensee fails to cooperate. Suspension or revocation of a license may be too harsh in some cases where discipline is warranted.

N.J.A.C. 13:45C-1.4 states that the failure to comply with board orders is professional or occupational misconduct.

N.J.A.C. 13:45C-1.5 describes the unavailability in disciplinary proceedings of certain privileges that otherwise arise from the professional relationship between a licensee and a patient or client. The rule also states that statements or records that would otherwise be subject to a claim of privilege, but which are obtained by a board, its agent or the Attorney General pursuant to the rule, must remain confidential.

N.J.A.C. 13:45C-1.6 concerns the maintenance of, and access to, privileged records which are submitted for review under the rules of the subchapter. The Attorney General proposes to amend N.J.A.C. 13:45C-1.6(b), to provide that agents of the Attorney General, the Enforcement Bureau, the boards or other sub-units of the Division, and experts or consultants retained by them, will be authorized to review such materials. Currently, only employees of the Attorney General, the Enforcement Bureau, the boards or other sub-units of the Division are authorized to review such documents. An amendment to N.J.A.C. 13:45C-1.6(c) is also proposed which would allow statements, records or other information submitted pursuant to the rules in the subchapter to be retained in a licensee's history with the licensing authority even though they may no longer be needed for the investigation or proceedings for which they were obtained.

A 60-day comment period is provided for this notice of proposal and, therefore, this notice is excepted from the rulemaking calendar requirements pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The rules proposed for readoption and the proposed amendments establish the uniform rules for all licensees of a board, committee or sub-unit within the Division of Consumer Affairs. The rules set forth the licensee's duty to comply with board orders and additionally establish the specific conduct deemed to be a failure to cooperate and the unavailability of certain privileges in investigative or disciplinary proceedings.

The rules have been effective in reducing recalcitrant conduct by licensees who attempt to interfere with legitimate inquiries into their conduct. The rules permit the prompt investigation of complaints regarding a licensee's conduct, fitness or capacity to engage in a licensed profession or occupation.

The public, licensees and the licensing and enforcement entities thereby benefit from the resulting heightened efficiency and expedience of investigations and disciplinary proceedings.

Economic Impact

The rules proposed for readoption and the proposed amendments will have no economic impact on the general public but may have some effect on licensees. Licensees who do not comply with the provisions of this subchapter may incur expenses such as attorneys' fees, litigation time, loss of practice time and penalties incurred from professional or occupational misconduct. Additionally, the boards, committees and sub-units of the Division benefit economically from the inherent efficiencies when the rules are applied and enforced uniformly. This also avoids unnecessary expenses which may be incurred in enforcement litigation.

Federal Standards Statement

A Federal standards analysis is not required because the rules proposed for readoption and the proposed amendments are not subject to any Federal standards or requirements.

Jobs Impact

The Attorney General does not anticipate that the rules proposed for readoption and the proposed amendments will increase or decrease the number of jobs in the State.

Agriculture Industry Impact

The rules proposed for readoption and the proposed amendments will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

If, for purposes of the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., all licensees of entities within the Division of Consumer Affairs, as defined in N.J.A.C. 13:45C-1.1(b) are deemed "small businesses," then the following analysis applies.

The rules proposed for readoption and the proposed amendments impose no requirement for additional reporting or for keeping additional records. However, N.J.A.C. 13:45C-1.3 requires a licensee to timely provide records relating to its conduct to a board, the Director or a licensing agency. N.J.A.C. 13:45C-1.5 and 1.6 require that records otherwise subject to a claim of privilege that may be obtained by the Board or the Attorney General are to remain confidential and be maintained in a secure place for the period of time during which an investigation remains open or until completion of administrative or judicial proceedings. The rules proposed for readoption and the proposed amendments do impose several compliance requirements. N.J.A.C. 13:45C-1.2 establishes a licensee's duty to cooperate in investigative inquiries. N.J.A.C. 13:45C-1.3 lists specific conduct that if engaged in by a licensee would be deemed a failure to cooperate. N.J.A.C. 13:45C-1.5 lists the privileges otherwise authorized by law that are unavailable in investigative or disciplinary proceedings. For a discussion of compliance costs, see the Economic Impact above. Licensees will not be required to employ professional services in order to comply with the rules proposed for readoption and the proposed amendments but may require the services of an attorney if they fail to comply.

The Attorney General considers the rules proposed for readoption and the proposed amendments necessary to preserve the health, safety and welfare of the public by requiring licensees to comply with investigations of their conduct, fitness or capacity to engage in a licensed profession or occupation and, therefore, believes that the rules must be applied uniformly to all licensees regardless of the size of their businesses.

Smart Growth Impact

The rules proposed for readoption and the proposed amendments have no impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plans.

Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:45C.

Full text of the proposed amendments follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

13:45C-1.1 Applicability, scope and definitions

(a) (No change.)

(b) For the purpose of this subchapter, "licensee" shall mean any licensee, permittee, certificate holder or registrant of:

1. (No change.)

2. Any professional or occupational licensing board [within the Office of Professional/Occupational Boards and any], committee, or other subunit of a board or committee located within the Division; or

[3. The Office of Consumer Protection; or]

[4.]3. (No change in text.)

13:45C-1.3 Specific conduct deemed failure to cooperate

(a) The following conduct by a licensee may be deemed a failure to cooperate and, therefore, professional or occupational misconduct and grounds for disciplinary action including, but not limited to, suspension or revocation of licensure:

1.-7. (No change.)

13:45C-1.6 Maintenance of and access to statements, records or other information that is subject to a privilege declared unavailable

(a) (No change.)

(b) Except as may be otherwise ordered as provided in the subchapter, access to statements, records or other information shall be afforded only to employees and agents of, and experts or other consultants retained by, the Attorney General, the Enforcement Bureau, or the Board or other subunit of the Division having a direct connection with, or a need for access to, the matter to which the statement, records or other information pertain.

(c) The statements, records or other information [shall] may be retained [only] for the period of time during which an investigation remains open or until the completion of all administrative or judicial proceedings relating thereto, at which time they [shall] may be returned to the licensee or other person from whom they were obtained. In the absence of such licensee or other person, the statements, records or other information [shall] may be returned to the patient, where appropriate.

INTERESTED PERSONS Interested persons may submit comments, information or arguments concerning any of the rule proposals in this issue until the date indicated in the proposal. Submissions and any inquiries about submissions should be addressed to the agency officer specified for a particular proposal.

The required minimum period for comment concerning a proposal is 30 days. A proposing agency may extend the 30-day comment period to accommodate public hearings or to elicit greater public response to a proposed new rule or amendment. Most notices of proposal include a 60-day comment period, in order to qualify the notice for an exception to the rulemaking calendar requirements of N.J.S.A. 52:14B-3. An extended comment deadline will be noted in the heading of a proposal or appear in a subsequent notice in the Register.

At the close of the period for comments, the proposing agency may thereafter adopt a proposal, without change, or with changes not in violation of the rulemaking procedures at N.J.A.C. 1:30-6.3. The adoption becomes effective upon publication in the Register of a notice of adoption, unless otherwise indicated in the adoption notice. Promulgation in the New Jersey Register establishes a new or amended rule as an official part of the New Jersey Administrative Code.



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