N.J. Admin. Code § 13:44F-8.3 - Sexual misconduct

(a) By this section, the Board is identifying for its licensees conduct which it shall deem to be violative of law.

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

1. "Licensee" means any person licensed or authorized to engage in the practice of respiratory care as regulated by the Board.

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

3. "Patient-respiratory care practitioner relationship" means an association between a respiratory care practitioner and a patient wherein the respiratory care practitioner performs any professional service consistent with his or her training and experience in accordance with N.J.A.C. 13:44F-3.1 or acts in a supervisory capacity for the patient.

4. "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 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.

5. "Sexual harassment" means solicitation of any sexual act, physical advances, or verbal or nonverbal conduct that is sexual in nature, and which occurs in connection with a licensee's activities or role as a provider of respiratory care services, and that either: is unwelcome, 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 so as 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 patient, co-worker, employee, student, or supervisee, whether or not such individual is in a subordinate position to the licensee. "Sexual harassment" may also include conduct of a nonsexual nature if it is based on the sex of an individual.

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

i. For purposes of this section, "a long-term committed relationship" is a relationship that has existed for greater than six months.

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

1. Actively terminated, by way of written notice to the patient and documentation in the patient record; or

2. The last professional service was rendered more than three months earlier.

(d) A licensee shall not seek or solicit sexual contact with a patient with whom he or she has a patient-respiratory care practitioner 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 provide privacy and examination conditions which prevent the exposure of the unclothed body of the patient unless necessary to the professional services rendered.

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

(h) 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.

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

(j) Nothing in this section shall be construed to prevent a licensee from rendering professional services to a spouse, providing that the rendering of such services is consistent with accepted standards of respiratory care and that the performance of those services is not utilized to exploit the 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 patient solicited or consented to sexual contact with the licensee; or

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

Notes

N.J. Admin. Code § 13:44F-8.3

New Rule, R.1998 d.467, effective 9/8/1998.
See: 30 New Jersey Register 1198(a), 30 New Jersey Register 3252(a).