N.J. Admin. Code § 13:37-14.17

Current through Register Vol. 56, No. 21, November 4, 2024

Section 13:37-14.17 - Sexual misconduct

(a) The purpose of this section is to identify for CHHAs conduct that shall be deemed sexual misconduct.

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

"Patient" means any person who is the recipient of services from a CHHA.

"Patient-aide relationship" means a relationship between a CHHA and a patient wherein the CHHA owes a continuing duty to the patient to perform tasks a registered professional nurse has delegated to the CHHA, tasks a registered professional nurse has directed the CHHA to perform, or home-making activities as requested by a patient or patient's family.

"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 CHHA's own prurient interest or for sexual arousal or gratification. "Sexual contact" includes the imposition of a part of the CHHA'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 CHHA or patient'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 CHHA performing tasks a registered professional nurse has delegated to the CHHA or tasks a registered professional nurse has directed the CHHA to perform, and that either: is unwelcome, is offensive to a reasonable person, or creates a hostile workplace environment, and the CHHA 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 conduct of a CHHA with an individual whether or not such individual is in a subordinate position to the CHHA.

"Spouse" means the husband, wife, civil partner, domestic union partner, or fiancee of the CHHA or an individual involved in a long-term committed relationship with the CHHA. For purposes of the definition of "spouse," a long-term committed relationship means a relationship, which is at least six months in duration.

(c) A CHHA shall not engage in sexual contact with a patient with whom he or she has a patient-aide relationship. The patient-aide relationship is ongoing for purposes of this section, unless the last service provided to the patient was rendered more than three months ago.

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

(e) A CHHA shall not engage in any discussion of an intimate sexual nature with a person with whom the CHHA has a patient-aide relationship, unless that discussion is directly related to a task delegated by a registered professional nurse to the CHHA or which a registered professional nurse directed the CHHA to perform. Such discussion shall not include disclosure by the CHHA of his or her own intimate sexual relationships.

(f) A CHHA shall provide privacy conditions that prevent the exposure of the unclothed body of the patient unless necessary to the CHHA services rendered.

(g) A CHHA shall not engage in sexual harassment either within or outside of the professional setting.

(h) A CHHA shall not engage in any other activity, which would lead a reasonable person to believe that the activity serves the CHHA's personal prurient interests, which is for the sexual arousal or sexual gratification of the CHHA or patient, or which constitutes an act of sexual abuse.

(i) Violation of any of the prohibitions or directives set forth in (c) through (h) above shall constitute professional misconduct pursuant to N.J.S.A. 45:1-21.c and e.

(j) Nothing in this section shall be construed to prevent a CHHA from providing care to a spouse, providing that the provision of such care is consistent with accepted standards and that the performance of this care is not utilized to exploit the spouse for the sexual arousal or sexual gratification of the CHHA.

(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 CHHA; or

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

N.J. Admin. Code § 13:37-14.17

Adopted by 48 N.J.R. 423(a), effective 3/7/2016