52 N.J.R. 193(a)                    

VOLUME 52, ISSUE 4, FEBRUARY 18, 2020
                                                   RULE PROPOSALS                                                           

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52 N.J.R. 193(a)
NJ - New Jersey Register  >  2020  >  FEBRUARY  >  FEBRUARY 18, 2020  >  RULE PROPOSALS  >  LAW AND PUBLIC SAFETY -- DIVISION OF CONSUMER AFFAIRS

Interested Persons Statement 

   INTERESTED PERSONS                
Interested persons may submit comments, information or arguments concerning any of the rule proposals in this issue until the date indicated in the proposal. Submissions and any inquiries about submissions should be addressed to the agency officer specified for a particular proposal.                
The required minimum period for comment concerning a proposal is 30 days. A proposing agency may extend the 30-day comment period to accommodate public hearings or to elicit greater public response to a proposed new rule or amendment. Most notices of proposal include a 60-day comment period, in order to qualify the notice for an exception to the rulemaking calendar requirements of   N.J.S.A. 52:14B-3 . An extended comment deadline will be noted in the heading of a proposal or appear in a subsequent notice in the Register.               
At the close of the period for comments, the proposing agency may thereafter adopt a proposal, without change, or with changes not in violation of the rulemaking procedures at           N.J.A.C. 1:30-6.3  . The adoption becomes effective upon publication in the Register of a notice of adoption, unless otherwise indicated in the adoption notice. Promulgation in the New Jersey Register establishes a new or amended rule as an official part of the New Jersey Administrative Code.                
Agency


LAW AND PUBLIC SAFETY >                                                                                                         

DIVISION OF CONSUMER AFFAIRS >                            

 STATE BOARD OF PSYCHOLOGICAL EXAMINERS

Administrative Code Citation


Proposed Repeals and New Rules: N.J.A.C. 13:42-5.3 and 10.17                                                         

Proposed Amendments: N.J.A.C. 13:42-9.3, 10.4, 10.18, and 11.4                                                         

Proposed New Rule: N.J.A.C. 13:42-10.18                                                       


Text



License Renewal                                                                             
Authorized By: Board of Psychological Examiners, Indira Nunez, Acting Executive Director.                 

Authority: N.J.S.A. 45:15BB-11.                                                           

Calendar Reference: See Summary below for explanation of exception to calendar requirement.                 

Proposal Number: PRN 2020-014.                 

Submit comments by April 18, 2020, to:                 


Indira Nunez, Acting Executive Director
Board of Psychological Examiners
124 Halsey Street
PO Box 45017
Newark, New Jersey 07101
or electronically at:                                                               http://www.njconsumeraffairs.gov/Proposals/Pages/default.aspx.                                            

The agency proposal follows:                 

Summary                                                           

N.J.S.A. 45:1-7.1 and 7.4 establish standards for renewing, reinstating, and reactivating licensure. Since 2014, the Board of Psychological Examiners (Board) has had the additional statutory authority to establish standards for issuing licenses to applicants licensed in other states. N.J.S.A. 45:1-7.5 establishes standards for issuing licenses to applicants licensed in other states. The Board proposes amendments, repeals, and new rules to effectuate the provisions of N.J.S.A. 45:1-7.1, 7.4, and 7.5 for psychologists licensed in other states that wish to seek licensure in New Jersey.                    

Existing N.J.A.C. 13:42-5.3 allows an out-of-State psychologist to take the jurisprudence examination and qualify for licensure in New Jersey if the psychologist is licensed in another state which requires an examination for licensure that the Board has approved and meets all of the other requirements for licensure. Proposed new N.J.A.C. 13:42-5.3 allows the Board to issue a license to an applicant if the Board determines that the state in which the applicant is licensed has standards for licensure that are substantially equivalent to Board standards and the applicant has been practicing for at least two years within the five years prior to applying for a license. An applicant would have to submit documentation from every state in which he or she is currently licensed or was ever licensed indicating that his or her licenses are in good standing. An applicant would also have to undergo a criminal history background check and designate an agent in New Jersey for service of process if he or she will not reside in, or have an office in, New Jersey. The new rule provides standards for determining if a license is in good standing and whether an examination is substantially similar to that required by the Board. The Board would be permitted to revoke a license obtained through fraud, deception, or misrepresentation. An applicant will be required to take a one-time, three-credit continuing education course in New Jersey laws and rules governing the practice of psychology. The Board could grant a license to an applicant whose license was not in good standing due to a pending action, disciplinary proceeding, or criminal charge, as long as the alleged conduct that is the subject of the action, proceeding, or charge was not related to the practice of psychology.                    

At N.J.A.C. 13:42-10.17, the Board proposes to repeal and replace the section to update it to incorporate license renewal requirements at N.J.S.A. 45:1-7.1, which was effective in January 2014. Under the new rule, the Board would have to send out notices that explain the option to renew as inactive. Licensees would be permitted to renew within 30 days of license expiration by paying a late renewal fee. A licensee who did not renew a license by the end of this 30-day late period would be suspended. A licensee who renews as inactive or whose license has been suspended shall not engage in the practice of psychology. The remaining parts of this section are merely reorganized for clarity.                    

Proposed new N.J.A.C. 13:42-10.18 addresses reinstatement of licensure and deals with reactivation of licensure pursuant to N.J.S.A. 45:1-7.4. A licensee seeking to reactive a license would be required to submit a renewal application, a certification of employment listing jobs held while the license was inactive, the active renewal fee, and evidence of having completed the continuing education credits required for the current renewal period. The proposed new rule would permit licensees to satisfy continuing education requirements by showing that they completed the requirements of another state in which they were licensed. The proposed new rules would permit the Board to require a licensee to pass an examination, complete a refresher course, or meet any other Board imposed requirement, if the Board determines that there is a reason to conclude that the licensee would not be able to practice safely. The proposed new rule provides criteria for determining if a practice deficiency exists.                     

Recodified N.J.A.C. 13:42-10.18, is proposed for amendment to indicate that a licensee seeking to reinstate a license would have to submit the current renewal fee and evidence of completing the continuing education credits required for the current renewal period, in addition to the following, as required under the existing rule: a reinstatement application, a certification (rather than an affidavit) of employment listing jobs held during the period a license was suspended, the past due fee from the last renewal period (as opposed to all past delinquent renewal fees), and a reinstatement fee. A licensee could satisfy the new continuing education requirements by showing that he or she completed the [page=194] requirements of another state in which he or she was licensed. The proposed amendments would permit the Board to require a licensee to pass an examination, complete a refresher course, or meet any other Board imposed requirement, if the Board determines that there is a reason to conclude that a licensee would not be able to practice safely. The proposed amendments provide criteria for determining if a practice deficiency exists. Existing N.J.A.C. 13:42-10.18(b) is not reproduced in the new rule.                     

The Board also proposes to amend N.J.A.C. 13:42-9.3 to require advertisements on websites or Internet services to comply with minimum content requirements.                    

The Board proposes to amend N.J.A.C. 13:42-10.4 to revise the list of characteristics that form the basis of unjustifiable discrimination to conform to those characteristics listed at N.J.S.A. 10:5-12(a) by removing "handicap" and "sexual preference" and adding "color, ancestry, marital status, civil union status, domestic partnership status, genetic information, pregnancy or breastfeeding, ethnicity, disability, sex, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, refusal to submit to a genetic test or make available the results of a genetic test to an employer, liability for service in the Armed Forces of the United States, nationality, or any other characteristic protected by N.J.S.A. 10:5-12(a)."                    

Proposed amendments to N.J.A.C. 13:42-11.4 remove the phrase "all five Axes" of therapeutic characterizations, as this phrase does not accurately address diagnostic information. The proposed amendments also provide an updated reference to the Diagnostic and Statistical Manual of Mental Disorders and reference the International Statistical Classification of Diseases and Related Mental Health Problems, which is proposed to be properly incorporated by reference into the rule, as amended and supplemented.                    

The Board has provided a 60-day comment period for this notice of proposal. Therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3(a)5.                    

Social Impact                                                              

The proposed amendments, new rules, and repeals will make it easier for licensees to resume practicing after a period of inactivation or suspension. The proposed amendments, new rules, and repeals allow licensees to satisfy the Board's continuing education requirements by submitting proof of compliance with another state's continuing education requirements. The Board will have the flexibility to determine if remediation is necessary to continue to ensure the safety and welfare of the public.                    

Economic Impact                                                               

The Board believes that the proposed amendments, new rules, and repeals may have a positive economic impact upon licensees seeking to reactivate or reinstate their license. Accepting continuing education requirements of another state would save licensees the costs associated with completing the Board's continuing education requirements. Licensees seeking reinstatement may realize a positive economic benefit because they will no longer be required to pay all past delinquent renewal fees. There may be a negative economic impact for licensees who are seeking reactivation or reinstatement if the Board deems them in need of remediation and they are required to pass an examination or complete additional education or training.                    

Federal Standards Statement                                                              

A Federal standards analysis is not required because there are no Federal laws or standards applicable to the proposed amendments, new rules, and repeals.                    

Jobs Impact                                                              

The Board does not believe that proposed amendments, new rules, and repeals will result in the creation or loss of jobs in the State.                    

Agriculture Industry Impact                                                              

The Board does not believe that proposed amendments, new rules, and repeals will have any impact on the agriculture industry in the State.                    

Regulatory Flexibility Analysis                                                              

Since psychologists are individually licensed by the Board under the Regulatory Flexibility Act (the Act), N.J.S.A. 52:14B-16 et seq., they may be considered "small businesses" for the purposes of the Act.                    

The economic impact on small businesses is the same as for all businesses as set forth in the Economic Impact statement above. The Board does not believe that licensees will need to employ any professional services to comply with the requirements of the proposed amendments, new rules, and repeals. The proposed amendments, new rules, and repeals impose no recordkeeping requirements, but impose reporting and compliance requirements upon licensees as detailed in the Summary above.                    

As the reporting and compliance requirements contained in the proposed amendments, new rules, and repeals are necessary to ensure that licensees are in compliance with the renewal, reactivation, and reinstatement requirements at N.J.S.A. 45:1-7.1, 7.4, and 7.5, the Board believes that the rules must be uniformly applied to all licensees and no exemptions are provided based on the size of a business.                    

Housing Affordability Impact Analysis                                                              

The proposed amendments, new rules, and repeals will have an insignificant impact on the affordability of housing in New Jersey and there is an extreme unlikelihood that the proposed amendments, new rules, and repeals would evoke a change in the average costs associated with housing because the proposed amendments, new rules, and repeals concern license renewal requirements for licensed psychologists.                    

Smart Growth Development Impact Analysis                                                              

The proposed amendments, new rules, and repeals will have an insignificant impact on smart growth and there is an extreme unlikelihood that the proposed amendments, new rules, and repeals would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed amendments, new rules, and repeals concern license renewal requirements for licensed psychologists.                    

Racial and Ethnic Community Criminal Justice and Public Safety Impact                                                               

The Board has evaluated this rulemaking and determined that it will not have an impact on pretrial detention, sentencing, probation, or parole policies concerning adults and juveniles in the State. Accordingly, no further analysis is required.                    

Full text of the rules proposed for repeal may be found in the New Jersey Administrative Code at N.J.A.C. 13:42-5.3 and 10.17.                    

Full text of the proposed new rules and amendments follows (additions indicated in boldface   thus; deletions indicated in brackets [thus]):                    

SUBCHAPTER 5.   EXAMINATION                    

                                                      13:42-5.3          Licensure by reciprocity                                                              

(a) Upon receipt of a completed application, application fee, consent to a criminal history record background check, and requisite fee for such a check, the Board shall issue a license to any person who documents that he or she holds a valid, current corresponding license in good standing issued by another state, if:                                                              

1. The Board determines that the state that issued the license has, or had, at the time of issuance, education, training, and examination requirements for licensure substantially equivalent to the current Board standards;                                                               

2. The applicant has been practicing in the profession of psychology for a period of at least two years within the five years prior to the date of application; and                                                              

3. The requirements of (b) below are satisfied.                                                               

(b) Prior to the issuance of the license, the Board shall have received:                                                               

1. Documentation from any state in which the applicant is, or was ever, licensed demonstrating that the applicant's license(s) is in good standing;                                                              

2. The results of a criminal history record background check of the files of the Criminal Justice Information Services Division in the Federal Bureau of Investigation and the State Bureau of Identification in the Division of State Police that do not disclose a conviction for a disqualifying crime; and                                                               

[page=195]   3. Designation of an agent in New Jersey for service of process if the applicant is not a New Jersey resident and does not have an office in New Jersey.                                                               

(c) For purposes of this section, "good standing" means that:                                                              

1. No action has been taken against the applicant's license by any licensing board;                                                              

2. No action adversely affecting the applicant's privileges to practice psychology has been taken by any out-of-State institution, organization, or employer;                                                               

3. No disciplinary proceeding is pending that could affect the applicant's privileges to practice psychology;                                                               

4. All fines levied by any out-of-State board have been paid; and                                                               

5. There is no pending or final action by any criminal authority for violation of law or rule, or any arrest or conviction for any criminal or quasi-criminal offense under the laws of the United States, New Jersey, or any other state, including, but not limited to: criminal homicide; aggravated assault; sexual assault, criminal sexual contact or lewdness; or any offense involving any controlled dangerous substance or controlled dangerous substance analog.                                                              

(d) For purposes of this section, a "substantially equivalent" examination need not be identical to the current examination requirements of this State, but such examination shall be nationally recognized and of comparable scope and rigor.                                                              

(e) The Board, after the licensee has been given notice and an opportunity to be heard, may revoke any license based on a license issued by another state obtained through fraud, deception, or misrepresentation.                                                              

(f) An applicant shall take a three-credit continuing education course in New Jersey laws and rules governing the practice of psychology offered by entities approved pursuant to N.J.A.C. 13:42-10.21(a).                                                              

(g) The Board may grant a license without examination to an applicant seeking reciprocity who holds a corresponding license from another state who does not meet the good standing requirement of (a) above due to a pending action by a licensing board, a pending action by an out-of-State institution, organization, or employer affecting the applicant's privileges to practice, a pending disciplinary proceeding, or a pending criminal charge or arrest for a crime, provided the alleged conduct of the applicant that is the subject of the action, proceeding, charge, or arrest does not demonstrate a serious inability to practice psychology, adversely affect the public health, safety, or welfare, or result in economic or physical harm to a person or create a significant threat of such harm.                                                              

SUBCHAPTER 9.   ADVERTISING                    

13:42-9.3   Minimum content of advertising                    

(a) All licensee advertisements and public representations, including advertisements in a classified directory, business card,                                                   website, Internet service, and professional stationery, but not including an office entry sign, shall contain the following:                    

1.-2. (No change.)                    

(b)-(c) (No change.)                    

SUBCHAPTER 10. GENERAL OBLIGATIONS OF A LICENSEE                    

13:42-10.4 Professional responsibilities to the Board, other regulatory authorities, or the public                    

(a)-(c) (No change.)                     

(d) A licensee shall maintain competence consistent with professional responsibilities, including the following:                    

1.-3. (No change.)                     

4. A licensee shall refuse to engage in, or condone, hiring, promotion, or training practices that are inhumane or that result in illegal or otherwise unjustifiable discrimination on the basis of race, [handicap,]   color, ancestry, marital status, civil union status, domestic partnership status, genetic information, pregnancy or breastfeeding, ethnicity,                                                   disability, age,   sex or gender,  affectional or sexual [preference,]   orientation, gender identity or expression, atypical hereditary cellular or blood trait, refusal to submit to a genetic test or make available the results of a genetic test to an employer, liability for service in the Armed Forces of the United States, nationality, religion, [or] national origin, or any other characteristic protected by N.J.S.A. 10:5-12(a)                                                ; and                    

5. (No change.)                    

                                                      13:42-10.17      License renewal                                                               

(a)                                                   The Board shall send a notice of renewal to each of its licensees at least 60 days prior to the expiration of the license.                                                   The notice of renewal shall explain inactive renewal and advise the licensee of the option to renew as inactive.                                                   If the notice to renew is not sent at least 60 days prior to the expiration date, no monetary penalties or fines shall apply to the holder for failure to renew, provided that the license is renewed within 60 days from the date the notice is sent or within 30 days following the date of license expiration, whichever is later.                    

(b)                                                   A licensee shall renew his or her license for a period of two years from the last expiration date. The licensee shall submit a renewal application to the Board, along with the renewal fee set forth at N.J.A.C. 13:42-6.1, prior to the date of license expiration.                                                               

(c) A licensee may renew his or her license by choosing inactive status. A licensee electing to renew as a practitioner in inactive status                                                   shall not engage in the practice of psychology, or hold him- or herself out as eligible to engage in the practice of psychology, in New Jersey until such time as the license is returned to active status.                                                              

(d) If a licensee does not renew the license prior to its expiration date, the licensee may renew the license within 30 days of its expiration by submitting a renewal application, a renewal fee, and a late fee as set forth at N.J.A.C. 13:42-6.1. During this 30-day period, the license shall be valid and the licensee shall not be deemed practicing without a license.                                                              

(e) A licensee who fails to submit a renewal application within 30 days of license expiration shall have his or her license suspended without a hearing.                                                              

(f) A licensee who continues to engage in the practice of psychology with a suspended license shall be deemed to be engaging in the unlicensed practice of psychology and shall be subject to action consistent with N.J.S.A. 45:1-14 et seq., even if no notice of suspension has been provided to the individual.                                                              

                                                      13:42-10.18      License reactivation                                                              

(a)                                                   A licensee who holds an inactive license pursuant to N.J.A.C. 13:42-10.17(c) may apply to the Board for reactivation of an inactive license. A licensee seeking reactivation of an inactive license shall submit:                                                              

1. A renewal application;                                                              

2. A certification of employment listing each job held during the period of inactive license that includes the name, address, and telephone number of each employer;                                                              

3. If the renewal application is sent during the first year of the biennial renewal period, the renewal fee for the biennial period for which reactivation is sought, as set forth at N.J.A.C. 13:42-6.1. If the renewal application is sent during the second year of the biennial period, half of the renewal fee for the biennial period for which reactivation is sought, as set forth at N.J.A.C. 13:42-6.1; and                                                              

4. Evidence of having completed all continuing education credits for the current biennial registration period, consistent with the requirements set forth at N.J.A.C. 13:42-10.20.                                                              

(b) An applicant who holds a valid, current license in good standing issued by another state to engage in the practice of psychology and submits proof of having satisfied that state's continuing education requirements, shall be deemed to have satisfied the requirements of (a)4 above. If the other state does not have any continuing education requirements, the requirements of (a)4 above apply.                                                              

(c) If a Board review of an application establishes a basis for concluding that there may be practice deficiencies in need of remediation prior to reactivation, the Board may require the applicant to submit to and successfully pass an examination or an assessment of skills, a refresher course, or other requirements as determined by the Board prior to reactivation of the license. If that examination or assessment identifies deficiencies or educational needs, the Board may require the applicant, as a condition of [page=196]   reactivation of licensure, to take, and successfully complete, education or training, or to submit to supervision, monitoring, or limitations, as the Board determines necessary to assure that the applicant practices with reasonable skill and safety. The Board may restore the license subject to the applicant's completion of training within a period of time prescribed by the Board following the restoration of the license. In making its determination whether there are practice deficiencies requiring remediation, the Board may consider the following:                                                              

1. Length of time license was inactive;                                                               

2. Employment history;                                                              

3. Professional history;                                                              

4. Disciplinary history and any action taken against the applicant's license by any professional or occupational board;                                                              

5. Actions affecting the applicant's privileges taken by any institution, organization, or employer related to the practice of psychology or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction;                                                               

6. Pending proceedings against a professional or occupational license issued to the licensee by a professional or occupational board in New Jersey, any other state, the District of Columbia, or in any other jurisdiction; and                                                              

7. Civil litigation related to the practice of psychology or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction.                                                              

13:42-[10.18]  10.19          [Reinstatement]   License reinstatement                                                              

(a) A [person seeking reinstatement within five years following the suspension of a license pursuant to N.J.A.C. 13:42-10.17(c)]   licensee who has had his or her license suspended pursuant to N.J.A.C 13:42-10.17(e) may apply to the Board for reinstatement. A licensee applying for reinstatement shall submit [the following to the Board]:                    

1. A[completed] reinstatement application;                    

2.                                                   A certification of employment listing each job held during the period of suspended license that includes the name, address, and telephone number of each employer;                                                              

3. The renewal fee set forth at N.J.A.C. 13:42-6.1 for the biennial period for which reinstatement is sought;                                                              

[2.]  4. [Payment of the]   The past [delinquent]   due renewal fee[s as set forth in N.J.A.C. 13:42-6.1]   for the biennial period immediately preceding the renewal period for which reinstatement is sought;                    

[3.]   5. [Payment of a]   The reinstatement fee [as] set forth [in]   at                                                 N.J.A.C. 13:42-6.1; and                    

[4. An affidavit of employment listing each job held during the period of suspension, which includes the names, addresses, and telephone numbers of each employer.                     

(b) A person seeking reinstatement after more than five years following the suspension of a license shall satisfy the requirements of (a) above and shall successfully complete the examination required for initial licensure pursuant to N.J.A.C. 13:42-5.1.]                    

6.                                                   Evidence of having completed all continuing education credits for the current biennial registration period, consistent with the requirements set forth at N.J.A.C. 13:42-10.20.                                                              

(b) An applicant who holds a valid, current license in good standing issued by another state to engage in the practice of psychology and submits proof of having satisfied that state's continuing education requirements, shall be deemed to have satisfied the requirements of (a)6 above. If the other state does not have any continuing education requirements, the requirements of (a)6 above apply.                                                              

(c) If a Board review of an application establishes a basis for concluding that there may be practice deficiencies in need of remediation prior to reinstatement, the Board may require the applicant to submit to and successfully pass an examination or an assessment of skills, a refresher course, or other requirements as determined by the Board prior to reinstatement of the license. If that examination or assessment identifies deficiencies or educational needs, the Board may require the applicant, as a condition of reinstatement of licensure, to take and successfully complete education or training, or to submit to supervision, monitoring, or limitations, as the Board determines necessary to assure that the applicant practices with reasonable skill and safety. The Board may restore the license subject to the applicant's completion of training within a period of time prescribed by the Board following the restoration of the license. In making its determination whether there are practice deficiencies requiring remediation, the Board may consider the following:                                                              

1. Length of time license was suspended;                                                              

2. Employment history;                                                              

3. Professional history;                                                               

4. Disciplinary history and any action taken against the applicant's license by any professional or occupational board;                                                              

5. Actions affecting the applicant's privileges taken by any institution, organization, or employer related to the practice of psychology or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction;                                                              

6. Pending proceedings against a professional or occupational license issued to the licensee by a professional or occupational board in New Jersey, any other state, the District of Columbia, or in any other jurisdiction; and                                                              

7. Civil litigation related to the practice of psychology or other professional or occupational practice in New Jersey, any other state, the District of Columbia, or in any other jurisdiction.                                                              

SUBCHAPTER 11. ACCESS TO TREATMENT INFORMATION IN DESIGNATED HEALTH INSURANCE PROGRAMS                    

13:42-11.4 Stage I: Information to be provided to the [third party]   third-party payor                    

(a) (No change.)                    

(b) Within 10 days of receipt of the authorization required pursuant to N.J.A.C. 13:42-11.3, the treating psychologist shall provide the [third party]   third-party payor with basic client information limited to the following. The information provided shall be marked "Confidential" and forwarded to the attention of the specific individual designated in the authorization, if any.                    

1. (No change.)                    

2. Diagnostic information, defined as therapeutic characterizations [(including all five Axes)] of the type found in [DSM III-R or the current version of the DSM or in another professionally recognized diagnostic manual]  the International Statistical Classification of Diseases and Related Health Problems, published by the World Health Organization, 525 Twenty-Third St. N.W., Washington, D.C. 20037, incorporated herein by reference, as amended and supplemented, or Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association, 800 Maine Avenue, S.W., Suite 900, Washington, DC 20024;                    

3.-5. (No change.)