N.J. Admin. Code § 13:44L-5.6

Current through Register Vol. 56, No. 24, December 18, 2024

Section 13:44L-5.6 - Sexual misconduct

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

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

"Licensee" means any person who holds a license from the Board as a licensed polysomnographic technologist, technician or trainee.

"Patient" means any person who is the recipient of polysomnographic services.

"Patient-licensee relationship" means a relationship between a licensee and a patient in which the licensee owes a continuing duty to the patient to render polysomnographic services consistent with his or her training and experience.

"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 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. "Sexual contact" does not include the touching of a patient's body, which is necessary during the performance of a generally accepted and recognized polysomnographic procedure.

"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 polysomnographic services and that either: is unwelcome, is 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 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 licensee with a patient, co-worker, employee, student or supervisee, whether or not such individual is in a subordinate position to the licensee.

"Spouse" means the husband, wife or fiancee of the licensee or an individual involved in a long-term committed relationship with the licensee. 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 licensee shall not engage in sexual contact with a patient with whom he or she has a patient-licensee relationship. The patient-licensee relationship is considered ongoing for purposes of this section, unless:

1. Terminated by way of written notice to the patient and documented in the patient's record; or

2. Three months have lapsed since the last professional service was rendered by the practitioner to the patient.

(d) A licensee shall not seek or solicit sexual contact with a patient with whom he or she has a patient-licensee 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 person with whom the licensee has a patient-licensee relationship, unless that discussion is directly related to a proper polysomnographic purpose. Such discussion shall not include disclosure by the licensee of his or her own sexual relationships.

(f) A licensee shall provide privacy conditions, which prevent the exposure of the unclothed body of the patient. Appropriate draping measures shall be employed to protect patient privacy.

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

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

(j) Nothing in this section shall be construed to prevent a licensee from rendering polysomnography to his or her spouse, providing that the rendering of such polysomnography is consistent with accepted practice standards and that the performance of polysomnography is not utilized to exploit the spouse 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 is in love with or held affection for the patient.

N.J. Admin. Code § 13:44L-5.6