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RULE PROPOSAL
VOLUME 43, ISSUE 02
ISSUE DATE: JANUARY 18, 2011
Law and Public Safety
DIVISION OF CONSUMER AFFAIRS

Proposed Readoption: N.J.A.C. 13:45C

Uniform Regulations; Licensee Duty to Cooperate and Comply with Board Orders

Authorized By: Paula T. Dow, Attorney General.
Authority: N.J.S.A. 5:8-30.2, 45:1-17(b) and 52:17B-122.
 
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2011-023.
 
Submit written comments by March 19, 2011 to:
   Thomas Calcagni,
   Acting Director
   New Jersey Division of Consumer Affairs
   PO Box 45027
   Newark, NJ 07101
 
The agency proposal follows:
 
Summary
The Attorney General proposes to readopt N.J.A.C. 13:45C. These rules are scheduled to expire on July 25, 2011 pursuant to N.J.S.A. 52:14B-5.1c. The Division of Consumer Affairs (Division) notes that the Attorney General is proposing the readoption of these rules pursuant to N.J.S.A. 45:1-17(b) and will file the appropriate notice to all licensing entities within the Division.

In compliance with N.J.S.A. 52:14B-5.1, the Division undertook a thorough review of the existing provisions of N.J.A.C. 13:45C in order to delete unnecessary or unreasonable rules. The rules proposed for readoption are necessary, reasonable, understandable and responsive to the purposes for which they were originally promulgated, namely, to establish a licensee's duty to cooperate and comply with orders of a board, committee or sub-unit within the Division. The rules additionally set forth specific conduct that is deemed to be a failure to cooperate and provide that certain privileges are not available in investigative or disciplinary proceedings. The following summarizes the rules in the chapter.

N.J.A.C. 13:45C-1.1 states to whom the rules apply and defines the term "licensee." N.J.A.C. 13:45C-1.2 details a licensee's duty to cooperate in investigative inquiries and the consequences of a licensee's failure to cooperate.
 N.J.A.C. 13:45C-1.3 enumerates conduct that is deemed a failure to cooperate, including failing to provide information or records, to attend scheduled proceedings or to answer board inquiries.  N.J.A.C. 13:45C-1.4 states that the failure to comply with board orders is professional or occupational misconduct.

Pursuant to N.J.A.C. 13:45C-1.5, there are specific privileges that would otherwise arise from the professional relationship between a licensee and a patient or client that are not available in a Division investigation or disciplinary proceeding. The rule dictates that statements or records that would otherwise be subject to a claim of privilege, but which are obtained by a board, its agent or the Attorney General pursuant to the rule, must remain confidential.  N.J.A.C. 13:45C-1.6 concerns the maintenance of, and access to, privileged records that are submitted to the Division for review.

A 60-day comment period is provided for this notice of proposal, and, therefore, this notice is excepted from the rulemaking calendar requirement pursuant to N.J.A.C. 1:30-3.3.
 
Social Impact
The rules proposed for readoption benefit society by reducing recalcitrant conduct by licensees who attempt to interfere with legitimate inquiries into their conduct. The rules permit the prompt investigation of complaints regarding a licensee's conduct, fitness or capacity to engage in a licensed profession or occupation. The public, licensees and the licensing and enforcement entities benefit from increased efficiency and expeditious investigations and disciplinary proceedings.
 
Economic Impact
The rules proposed for readoption will have no economic impact on the general public but may have some effect on licensees. Licensees who do not comply with the provisions of the rules may incur expenses such as attorney fees, litigation time, loss of practice time and penalties incurred from professional or occupational misconduct. The boards, committees and sub-units of the Division benefit economically from the inherent efficiencies when the rules are applied and enforced uniformly. This also avoids unnecessary expenses that may be incurred in enforcement litigation.
 
Federal Standards Statement
A Federal standards analysis is not required because the rules proposed for readoption are not subject to any Federal standards or requirements.
 
Jobs Impact
The Attorney General does not anticipate that the rules proposed for readoption will increase or decrease the number of jobs in the State.
 
Agriculture Industry Impact
The rules proposed for readoption will have no impact on the agriculture industry in the State.
 
Regulatory Flexibility Analysis
Since the licensees subject to the rules in N.J.A.C. 13:45C are individually licensed, 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 costs imposed by the rules proposed for readoption are the same for all licensees as outlined above in the Economic Impact statement. [page=154] Licensees will not need to employ any professional services in order to comply with these rules. The rules proposed for readoption impose no reporting or recordkeeping requirements. The rules proposed for readoption impose compliance requirements.  N.J.A.C. 13:45C-1.2 establishes a licensee's duty to cooperate in investigative inquiries.  N.J.A.C. 13:45C-1.3 lists specific conduct that if engaged in by a licensee would be deemed a failure to cooperate.  N.J.A.C. 13:45C-1.5 lists the privileges otherwise authorized by law that are unavailable in investigative or disciplinary proceedings.

The Attorney General considers the rules proposed for readoption necessary to preserve the health, safety and welfare of the public by requiring licensees to cooperate with investigations of their conduct, fitness or capacity to engage in a licensed profession or occupation. Accordingly, these rules must be applied uniformly to all licensees regardless of the size of their businesses.
 
Smart Growth Impact
The rules proposed for readoption have no impact on the achievement of smart growth and implementation of the State Development and Redevelopment Plan.
 
Housing Affordability Impact
The rules proposed for readoption will have an insignificant impact on affordable housing in New Jersey, and there is an extreme unlikelihood that the rules would evoke a change in the average costs associated with housing because the proposed rules concern a licensee's duty to cooperate and comply with Division orders.
 
Smart Growth Development Impact
The rules proposed for readoption will have an insignificant impact on smart growth, and there is an extreme unlikelihood that the rules 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 rules concern a licensee's duty to cooperate and comply with Division orders.
 
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 13:45C.

   
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