Attorney General Grewal Issues Sweeping Sexual Misconduct Guidelines for New Jersey Licensing Boards

On April 6, 2021, New Jersey Attorney General Gurbir Grewal issued AG Administrative Directive 2021-3 (the “Directive”), that focused on addressing sexual misconduct issues by licensees of all 51 New Jersey licensing boards.  These new guidelines will affect physicians, dentists, therapists, and 700,000 total licensees in the State of New Jersey. 

The Directive comes on the heels of both the nationwide MeToo movement, as well as publicized shortcomings that the various state licensing boards have had over the past few years, including a widely criticized decision by the New Jersey State Board of Chiropractic Examiners to reinstate the license of a convicted sex offender.  This specific decision by the New Jersey State Board of Chiropractic Examiners led to Governor Phil Murphy appointing new members of this board and demanding that reforms take place.  

The Directive asks that the Division of Law (the “Division”) work with the licensing boards to both adopt new policies, and improve already existing policies, to work towards preventing sexual misconduct amongst the licensees, promote accountability, and foster an environment where victims feel comfortable coming forward.  While many of the boards already have various rules and measures meant to address the Attorney General’s goals, this new focus on sexual misconduct indicate that there will be a renewed focus on this issue across the State.

The Directive makes specific policy recommendations that the Division of Law will follow in helping the Boards reach the following goals:

(1) Preventing Sexual Misconduct

The Attorney General’s Directive seeks not only to punish and deter sexual misconduct, but also to prevent it from happening.  The Boards will be required to:

• Improve the screening of applicants.

Although licensing applications generally include questions about findings and allegations of past misconduct, Attorney General Grewal has asked the Division to work with the Boards to refine these questions to better prompt responses which will better capture problem applicants.

• Educate professionals about sexual misconduct before they begin practicing.

The Division intends to reach out to professional schools and other training programs in New Jersey to develop additional training in this area.

• Improve post-licensure continuing education.

The Division will work with the New Jersey State Board of Medical Examiners to develop a potential propose for mandatory continuing education on sexual misconduct prevention, bystander intervention, and human trafficking prevention.  This proposal will then be followed by the other licensing boards.

 

(2) Promoting Accountability for Sexual Misconduct

The Attorney General’s office is also looking to hold other providers responsible for their failure to report.  To accomplish this, the AG proposes the following:

• Encourage licensees reporting of misconduct by other licensees.

Health care professionals are already required to report other health care professionals where they have seen “unprofessional conduct that presents an imminent danger to the public,” including sexual misconduct.  The Division will begin offering new trainings to better educate and promote this type of reporting.

• Strengthen enforcement for failure to report.

Every sexual misconduct investigation by the Division will include an assessment of whether any other professional knew of the misconduct and failed to report.  While under the old guidelines there was more leeway for providers to determine whether an allegation was reportable, it appears the AG is now going to expect providers to be more proactive in reporting their peers.

• Prepare recommendations for legislation to protect complainants’ privacy.

The Division will prepare recommendations to enhance victim privacy and to prevent the disclosure of information generated by or on behalf of a victim of sexual misconduct.  The purpose of this is to encourage victims to come forward without fearing public ridicule or harassment.

(3) Victim Support

Lastly, among the goals of the Directive is to provide sufficient support to the victims of sexual misconduct by engaging in the following:

• Educating patients and consumers about how to recognize and report sexual misconduct that occurs in a professional setting.

The Division will offer additional resources to help individuals understand what behaviors should be expected of licensees, and to better recognize behaviors that may constitute sexual misconduct.  These resources will also outline what can be done when a victim experiences sexual misconduct.

• Educate victims about the disciplinary process.

The Division will create additional resources to clearly explain the complaint process and what occurs after a complaint is filed.

• Expand the use of patient/consumer navigators.

Navigators are meant to assist victims in guiding them through the investigatory and disciplinary process.  The New Jersey State Board of Medical Examiners already has one person assigned to this role.  The Division plans to hire an additional navigator to work with the other boards.

Many questions remain about how this Directive will affect licensees in their day to day lives.  However, this Directive makes clear that Attorney General Grewal intends to make the prosecution of sexual misconduct matters among licensees a top priority of his office.  Although these matters have always been treated with high importance at the Attorney General’s Office, licensees should expect a noticeable uptick of these types of prosecutions, like the change in focus during the opioid epidemic. 

Licensees should note that although Attorney General Grewal does not have direct authority over the Boards’ regulatory and decision-making powers, the Directive, and accompanying public pressure, will force the Boards to react in some manner.  This may include new regulations that licensees will need to familiarize themselves with, or risk running afoul of intensified prosecutorial efforts.

How Frier Levitt Can Help

Frier Levitt has a wealth of experience defending physicians and other licensees before professional licensing Boards.  We have successfully defended licensees during all manners of inquiry, from the purely administrative to criminal actions. Call Frier Levitt today if you have been notified of a patient complaint that was filed with the Board or of a professional investigation instituted against you.