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NEW JERSEY REGISTER
VOLUME 35, NUMBER 14
MONDAY, JULY 21, 2003
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF MEDICAL EXAMINERS
PRESENCE OF CHAPERONES

Proposed New Rule: N.J.A.C. 13:35-6.23

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

Authority: N.J.S.A. 45:9-2 and 45:1-15.1.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2003-284.

Submit written comments by September 19, 2003 to:

William Roeder, Executive Director

State Board of Medical Examiners

PO Box 183

Trenton, NJ 08625-0183

The agency proposal follows:

Summary

Pursuant to its rulemaking authority, N.J.S.A. 45:9-2, the State Board of Medical Examiners (the Board) is proposing new rule N.J.A.C. 13:35-6.22 requiring licensees in an office setting, to advise patients or any other person who is to be examined of their right to have a chaperone present during specified medical examinations. The Board has determined that in response to a number of complaints of inappropriate examinations it has received for several years, and continues to receive most commonly in the office setting, and because of the traditional reluctance of patients to request a chaperone, that it would be appropriate to require that patients receive notice that they may request a chaperone for certain examinations.

Subsection (a) requires that, in all office settings, a licensee must advise a patient or the person to be examined that they may have a chaperone present. This applies for breast and pelvic examinations for females and during genitalia and rectal examinations of both males and females.

Subsection (b) details how licensees must advise the patient or the person to be examined of their right to have a chaperone present. The licensee must either provide the notification in writing or must conspicuously post the notice in a manner that the patient or person to be examined is made aware of their right to request a chaperone. The notification must also advise the patient or the person to be examined that he or she may decline care if the physician is not able to provide a chaperone acceptable to the patient. If situations arise where neither of these methods convey the right to request a chaperone, such as the patient being visually impaired or not able to read English, the licensee must use other means to notify the patient or person to be examined.

Subsection (c) states that licensees need not provide further care if they are unable to provide an acceptable chaperone.

Subsection (d) states that if the patient or person to be examined refuses a chaperone and the licensee believes that one is necessary, the licensee is not obligated to provide further care.

Subsection (e) states that if medical care is not provided because the licensee is not able to provide an acceptable chaperone or the patient or person to be examined refuses a chaperone that the licensee believes is necessary, the licensee must discuss with the patient the risks of not receiving further care, so that the patient has been properly informed of and understands these risks consistent with the principle of informed consent.

This proposal has not been calendared pursuant to the requirements of N.J.A.C. 1:30-3.1 and, therefore, a 60-day comment period is provided pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

The Board believes that proposed new rule N.J.A.C. 13:35-6.22 will benefit the public and licensees. The Board believes that the requirement that in all office settings, licensees must inform patients or any person to be examined of their right to have a chaperone present in certain examinations, will benefit the public by making a patient or person to be examined feel more comfortable in the presence of the licensed physician. The public will also benefit from being able to make an informed decision on whether they desire to have a chaperone present in these circumstances. The Board believes that these provisions will strengthen the doctor/patient relationship which will benefit both the public and licensees.

Licensees will benefit by having a chaperone present if they desire and by being able to refuse to render further medical care if the patient or the person to be examined refuses to have a chaperone present. In the event the patient or person to be examined does not agree to the presence of a chaperone, such as the patient being visually impaired or not able to read English, licensees will be obligated to inform them of any potential risks of not receiving continued care.

Economic Impact

The Board believes that the proposed new rule will have a minimal impact on licensees, which will be greatly outweighed by the protections licensees will gain. Licensees may incur expenses if they must hire additional staff to serve as chaperones and may incur some minor expenses in fulfilling the notice requirements.

Federal Standards Statement

A Federal standards analysis is not required because the proposed new rule is governed by N.J.S.A. 45:15B-1 and is not subject to any Federal requirements or standards.

Jobs Impact

The Board expects that the proposed new rule will have a minimal impact on jobs in the State. Licensees may be compelled to hire additional staff in order to provide chaperones. It is anticipated, however, that additional staff will not be necessary in most cases.

Agriculture Industry Impact

The proposed new rule will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. (the Act), requires the Board to provide a description of the types and an estimate of the number of small businesses to which the proposal will apply. If, for the purposes of the Act, the approximately 33,000 licensed physicians are considered "small businesses" within the meaning of the Act, 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 with the requirements. The Act further requires the Board to estimate the initial and annual compliance costs, outline the manner in which it has designed the rules to minimize any adverse economic impact upon small businesses, and to set forth whether the rules establish differing compliance requirements for small businesses.

The proposed new rule does not impose reporting or recordkeeping requirements upon licensees. However, the proposed new rule does impose several compliance requirements as described in the Summary above. Subsection (a) requires licensees, in all office settings, to provide notice to a patient or other person to be examined of their right to have a chaperone present in specific situations. Subsection (b) gives guidance to licensees on how to satisfy the notice requirement in an office setting. Subsection (e) states that if care is not provided because of the circumstances described in subsections (c) and (d), the licensee is obligated to discuss with the patient the risks of not receiving further care consistent with the principals of informed consent.

The Board believes that no professional services are likely to be needed to comply with the proposed new rule. The Board considers the proposed new rule necessary to preserve the health, safety and welfare of patients and other persons to be examined by licensees. Compliance requirements do not differ based on size of the business in order to ensure that all services are provided uniformly throughout the State.

Smart Growth Impact

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

Full text of the proposed new rule follows:

<< NJ ADC 13:35-6.23 >>

13:35-6.23 Presence of chaperones

(a) In all office settings, a licensee shall provide notice to a patient, or any other person who is to be examined, of the right to have a chaperone present:

1. During breast and pelvic examinations of females; and

2. During genitalia and rectal examinations of both males and females.

(b) The notice required by (a) above shall either be provided in written form to the patient or by conspicuously posting a notice in a manner in which patients or any other person who is to be examined are made aware of the right to request a chaperone and to decline care if a chaperone acceptable to the patient is not available. In circumstances where the posting or the provision to the patient of the written notice would not convey the right to have a chaperone present, the licensee shall use another means to ensure that the patient or person to be examined understands his or her right to have a chaperone present.

(c) A licensee shall not be obligated to provide further care for the immediate medical problem presented if the licensee is unable to provide a requested chaperone acceptable to the patient.

(d) A licensee shall not be obligated to provide further care for the immediate medical problem presented if the patient refuses to have a chaperone present and it is the licensee's desire to have a chaperone present during the examination.

(e) If care is not to be provided to a patient under the circumstances described in (c) or (d) above, the licensee shall, consistent with the principles of informed consent, discuss with the patient the risks of not receiving further care.






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Posted July 21, 2003