On March 9, 2023, the New Jersey State Board of Medical Examiners filed an Order and statement of reasons for denying reinstatement of a physician’s medical license that had been previously revoked but with a right to apply for reinstatement. The denial was based on the Board’s conclusion that N.J.S.A. 45:1-15.9 barred reinstatement because of the physician’s prior conviction of criminal sexual contact that had led to the revocation in the first place.
This is the first known application of the statute that became effective in 2022 and will present a case of first impression if the matter proceeds further to the Appellate Division.
The physician’s license had been revoked on January 29, 2017 after earlier proceedings in 2015 temporarily suspending the license pending a plenary hearing. The Board’s disciplinary action arose out of an arrest for criminal sexual contact that allegedly occurred during two office visits with a patient undergoing a neurological examination. Although the presenting complaint involved a right wrist drop, the physician’s examination included touching the patient’s breasts, her abdomen, thighs, and buttocks as well as exposure of her vaginal area from different angles.
Relying on the Board’s sexual misconduct regulation in N.J.A.C. 13:35-6.3, the Board concluded that the evidential record “palpably demonstrates a clear and imminent danger to the public” from the physician’s continued practice pending final disposition of the Attorney General’s complaint. It rejected the defense’s argument that a temporary suspension was not warranted because no indictment had yet been returned.
The plenary disposition of the matter was achieved with the Consent Order that was entered on January 29, 2017. By that time, the physician had entered guilty pleas to criminal sexual contact in violation of N.J.S.A. 2C:14-3b. In ordering the revocation, the Board found that the charged conduct demonstrated gross and repeated acts of negligence, professional misconduct, sexual misconduct and acts constituting crimes of moral turpitude and crimes which relate adversely to the practice of medicine, satisfying several statutory grounds set out in N.J.S.A. 45:1-21. The Board’s Order further provided that the physician could not apply for a license in New Jersey until five years had elapsed from the entry of the temporary suspension order in 2015. It also required him to successfully complete courses on medical ethics and boundaries, undergo a psycho-sexual evaluation with follow-through on any treatment recommendation, and to appear before a committee of the Board to demonstrate fitness and competence to resume the practice of medicine.
An application for reinstatement was submitted in 2022 along with supportive documentation from the Board-designated evaluators concerning the physician’s readiness and fitness to resume practice.
On January 10, 2022, Governor Murphy signed Public Law 2021, Chapter 345 into law. Codified as N.J.S.A. 45:1-15.9, this legislation set out a new provision regarding grounds for refusal to issue, renew, or reinstate licenses or certifications of healthcare professionals. Under this statute, the Board of Medical Examiners and other licensing bodies regulating healthcare professions or occupations:
shall not issue an initial license, certification or registration, or renew, reinstate or reactivate a license, certification or registration unless the entity has first determined that no criminal history record or record with the National Practitioner Data Bank exists demonstrating that an applicant for a license, certification, or registration in a health care profession or occupation has been convicted of sexual assault, criminal sexual contact or lewdness pursuant to endangering the welfare of a child, … attempting to lure or entice a child [contrary to a series of specifically identified New Jersey statutes including N.J.S.A. 2C:14-3] or equivalent offenses in another jurisdiction. [(Emphasis added).]
The Board rebuffed the contention that the physician had provided evidence of his rehabilitation and that he did not present a risk to the public. It construed the statute as depriving the Board of any discretion in making the licensure decision in circumstances encompassed by the statute.
Most fundamentally, the Board rejected the argument that the statute should be applied only to convictions that might occur after its January 10, 2022 effective date. It saw no distinction between crimes that occurred before January 10, 2022 and those that might occur after that date. While nothing in the text explicitly required this retroactive application, the Board determined that the legislative intent could be found in statements submitted by the Senate Commerce Committee and the Assembly Regulated Professions Committee during consideration of the bill. The stated purpose of the bill was to bar certain convicted sex offenders who had engaged in “prior criminal conduct” from participation in regulated health occupations, in part, because of the risk of recidivism. The Legislature disavowed an intent to use the statute as a punitive measure but rather as protection of the public given the trust that arises from the implicit imprimatur of state licensure.
Going forward it will be necessary to reconcile the statute with provisions of N.J.S.A 45:1-21.5 which creates a presumption of disqualification for licensure from a conviction of murder or resulting in sex offender status but gives the professional licensing boards discretion to issue the license. Moreover, the Board is going to have to deal with biennial renewals submitted by physicians who have a disciplinary history including incidents of sexual misconduct fitting into the several categories of disqualifying offenses in N.J.S.A. 45:1-15.9. Even when the discipline was not as severe as revocation, the statute bars even a renewal of a medical license.
Legislation requiring permanent revocation of a physician’s medical license when the physician has been convicted of a sex offense or ordered to register as a sex offender has been enacted in several states, including California, Illinois, Ohio, Tennessee, and Texas. In 2014, the Illinois Supreme Court upheld the constitutionality of the requirement of revocation based on convictions predating the effective date of the statute. The United States Supreme Court declined to review the case.