NEW JERSEY REGISTER
VOLUME 33, NUMBER 22
MONDAY, DECEMBER 3, 2001
RULE PROPOSAL

LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS
STATE BOARD OF MARRIAGE AND FAMILY THERAPY EXAMINERS
PROFESSIONAL COUNSELOR EXAMINERS COMMITTEE
REHABILITATION COUNSELORS

SEXUAL MISCONDUCT

Proposed New Rule: N.J.A.C. 13:34-28.3

Authorized By: State Board of Marriage and Family Therapy Examiners, Dennis Gonzalez, Executive Director.

Authority: N.J.S.A. 45:8B-13. Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2001-450.

Submit written comments by February 1, 2002 to:
Dennis Gonzalez, Executive Director

State Board of Marriage and Family Therapy Examiners
124 Halsey Street
PO Box 45007
Newark, New Jersey 07101

The agency proposal follows:

Summary

Pursuant to the rulemaking authority set forth in N.J.S.A. 45:8B-13, the State Board of Marriage and Family Therapy Examiners (the Board), with the advice of the Professional Counselor Examiners Committee (the Committee), proposes new rule N.J.A.C. 13:34-28.3 to codify established standards for licensed rehabilitation counselors prohibiting sexual contact with current clients, former clients, a current student, direct supervisee, or a research subject. The Board intends to clarify conduct which is gross or repeated malpractice pursuant to N.J.S.A. 45:1-21(c) and (d) respectively, 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 already been adopted by other health care professional boards, such as psychological examiners, 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 utilized.

The proposed new rule prohibits a licensee from sexual contact or seeking or soliciting sexual contact with a current client, a former client to whom counseling services were rendered within the immediately preceding 24 months, a current student, a direct supervisee, or a research subject. However, in circumstances where a client is or should be recognized by the licensee as clearly vulnerable by reason of emotional or cognitive disorder to exploitive influence by the licensee, the prohibition shall extend indefinitely. 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. The proposed new rule also prohibits a licensee from accepting a current or former sexual partner as a client.

In therapy groups, a licensee is prohibited from permitting activities which promote, allow, or involve physical contact of a sexual nature between the licensee and group members, or between group members themselves. In addition, discussion of an intimate sexual nature with a client, unless that discussion is directly related to legitimate client needs and furthers the client's rehabilitation counseling treatment, may be considered gross or repeated malpractice or professional misconduct. At no time shall any such discussions include disclosure by the licensee to the client of his or her own intimate sexual relations or relationships.

The proposed new rule prohibits licensees from engaging in any activities which would lead a reasonable person to believe that the activity serves the licensee's personal prurient interests or is for the sexual arousal, sexual gratification, or sexual abuse of the licensee or client. A licensee cannot use the defense that the client solicited or consented to sexual contact with the licensee nor that the licensee is in love with or held affection for the client, student, supervisee or research subject.

As the Board 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 licensed rehabilitation counselors to comply with the proposed new rule will have a positive impact upon the public by increasing confidence in the rehabilitation counseling profession and enhancing the quality of counseling services by setting forth the parameters of appropriate conduct. The rule will also provide needed protection to clients, students, supervisees, research subjects, employees and co-workers of licensed rehabilitation counselors from sexual harassment and sexual contact. Clients will be able to receive counseling services without fear of unwanted sexual contact or harassment. Students, supervisees, research subjects, employees and co-workers will be granted workplace protection from unwanted advances and harassment, creating a safer and more productive workplace environment.

Economic Impact

The proposed new rule should have no significant 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 client, current student, current supervisee or research subject and/or sexual harassment with a client, co-worker, employee, student, supervisee or research subject. 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 there are no Federal standards or requirements applicable to the proposed new rule.

Jobs Impact

The proposed new rule may have an impact on jobs. The rule permits the Board to suspend or revoke a rehabilitation counselor'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 as rehabilitation counselors.

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 rehabilitation counselors are considered "small businesses" for the purposes of the Act, the following analysis applies: The proposed new rule imposes compliance requirements upon each rehabilitation counselor licensed by the Board, as described 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. Since the proposed new rule furthers the health, welfare and safety of the public, if there are costs incurred by any party to comply with the proposed new rule, they are greatly outweighed by this benefit. No professional services are necessary to comply with the proposed new rule. Because the proposed new rule furthers the welfare and safety of the public in its dealings with rehabilitation counselors, the Board believes that the new rule should be applied uniformly to all rehabilitation counselors and no differing compliance standards are proposed.

Full text of the proposed new rule follows:

<< NJ ADC 13:34-28.3 >>

13:34-28.3 Sexual misconduct

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

"Client" means any person who is the recipient of a rehabilitation counseling service rendered by a licensee. "Client" for purposes of this section also means a person who is the subject of professional assessment even if the purpose of that assessment is unrelated to treatment.

"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, but is not limited to, the imposition of a part of the licensee's body upon a part of the client's body, sexual penetration, or the insertion or imposition of any object or any part of a licensee or client'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 rehabilitation counseling services, and that is either unwelcome, offensive to a reasonable person, or creates a hostile work place 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 multiple acts, and may include, but is not limited to, conduct of a licensee with a client, co-worker, employee, student, supervisee, or research subject, whether or not such individual is in a subordinate position to the licensee.

(b) A licensee shall not engage in sexual contact with a current client, a former client to whom rehabilitation counseling services were rendered within the immediately preceding 24 months, a current student, a direct supervisee, or a research subject.

(c) In circumstances where a client is, or should be recognized by the licensee as, clearly vulnerable by reason of emotional or cognitive disorder to exploitive influence by the licensee, the prohibition on sexual contact shall extend indefinitely.

(d) A licensee shall not engage in sexual harassment in a professional setting (including, but not limited to, an office, hospital or health care facility) or outside of the professional setting.

(e) A licensee shall not accept as a client a current or former sexual partner.

(f) A licensee shall not conduct or engage in therapy groups, activities which promote, allow, or involve physical contact of a sexual nature between the licensee and group members or between group members themselves.

(g) A licensee shall not engage in any discussion of an intimate sexual nature with a client, unless that discussion is directly related to legitimate client needs and furthers the client's rehabilitation counseling treatment. At no time shall any such discussions include disclosure by the licensee to the client of his or her own intimate sexual relations or relationships.

(h) A licensee shall not engage in any other activity in a rehabilitation counseling relationship which would lead a reasonable person to believe that the activity serves the licensee's personal prurient interests or is for the sexual arousal, sexual gratification, or sexual abuse of the licensee or client.

(i) A licensee shall not seek or solicit sexual contact with a current client, a former client to whom counseling services were rendered within the immediately preceding 24 months, a current student, a direct supervisee, or a research subject and shall not seek, solicit, accept, or participate in sexual contact with any person in exchange for professional services.

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

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

1. The client, former client, student, supervisee, or research subject solicited or consented to sexual contact with the licensee; or
2. The licensee was in love with or had affection for the client, former client, student, supervisee or research subject.

 


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Posted December 3, 2001