Overview
On Monday, July 15, New Jersey Attorney General Matthew J. Platkin and the New Jersey Division of Consumer Affairs released proposed rules (the “Proposed Rules”) which require certain New Jersey healthcare providers (i.e., physician assistants, physicians, nurses, and midwives) who provide perinatal treatment and care to pregnant persons to undergo bias training. The training is designed to root out prejudices and stereotypes that may negatively impact the quality of care delivered by these providers to patients during pregnancy, labor, delivery, postpartum, and neonatal periods. The Proposed Rules were promulgated in an effort “to address pronounced racial disparities in maternal and infant health outcomes in New Jersey.”
During the 60-day comment period, the public will have the opportunity to provide feedback on the Proposed Rules. The comment period for the Proposed Rules for physician assistants closes on August 16, while the comment period for the Proposed Rules for physicians, nurses, and midwives closes on September 13. After the end of the public comment period, the State Board of Medical Examiners and the New Jersey Board of Nursing (collectively “the Boards”) will review comments. In 2025, the Boards will publish a Notice of Adoption, which will summarize public comments and the Boards’ responses to comments. Upon publication of the Notice of Adoption, the Proposed Rules will become final and will take effect 90 days thereafter.
The Proposed Rules fulfill statutory provisions requiring certain health care professionals to undergo explicit and implicit bias training. In May 2021, Governor Phil Murphy signed P.L. 2021, c.079 as part of his Administration’s efforts to reduce the rates of maternal and infant mortality in New Jersey and to ensure equitable care among pregnant persons and children of all races, religions, and ethnicities. The Proposed Rules also build upon efforts undertaken by the Nurture Initiative, a statewide initiative, launched in 2019 by New Jersey First Lady Tammy Murphy, that aims to ensure equity in maternal and infant health outcomes and to ensure reducing overall maternal and infant mortality and morbidity.
Summary of Proposed Rules
Under existing rules for the State Board of Medical Examiners and the New Jersey Board of Nursing, licensees such as physicians, physician assistants, and midwives, are required to complete continuing education credit hours as a condition of biennial licensure. “Licensee” includes medical professionals such as physicians, physician assistants, and midwives. See N.J. Admin. Code §§ 13:35-2A.2, 13:35-2B.2, 13:35-2B.8(a). If the Proposed Rules are finalized, all licensees who provide perinatal treatment and care to pregnant persons would be required to complete one of those training hours in programs or topics concerning explicit and implicit bias.
The Proposed Rules establish definitions that are referenced in the required bias training. They describe explicit bias to mean “attitudes and beliefs about a person or group on a conscious level.” They also describe implicit bias to mean “a bias in judgment or behavior that results from subtle cognitive processes, including implicit prejudice and implicit stereotypes, that often operate at a level below conscious awareness and without intentional control.” The Proposed Rules would require evidence-based explicit and implicit bias continuing education courses to address the following topics, among others:
- Unconscious biases and misinformation when providing perinatal treatment and care to, or interacting with, pregnant persons;
- Environmental, personal, interpersonal, institutional, and cultural barriers to inclusion;
- Effects of historical and contemporary exclusion and oppression of minority communities;
- Reproductive justice;
- Power dynamics and organizational decision-making and their effects on explicit and implicit bias;
- Inequities and racial, ethnic, and other disparities within the field of perinatal care, and how explicit and implicit bias may contribute to pregnancy-related deaths and maternal and infant health outcomes; and
- Corrective measures to decrease explicit and implicit bias at the interpersonal and institutional levels.
Key Takeaways
- New Jersey’s Proposed Rules reflect the State’s focus (i) to reduce maternal health mortality and morbidity, and (ii) to address health equity issues for communities of color. Specifically, the Proposed Rules, if finalized, will require training on explicit and implicit bias for medical professionals providing perinatal treatment and care to pregnant persons.
- In light of the Proposed Rules and New Jersey’s increased focus on health care equity, health care providers should stay apprised of any issues of bias within their own practices and should take concrete steps to comply with any specific training requirements that will roll out after finalization of the Proposed Rules.
- Recent federal and state action signals increased focus on efforts to address bias and disparities in maternal health outcomes.
- The Biden Administration, through the Department of Health and Human Services (HHS), published a Maternal Health Action Plan to establish the Administration’s vision to improve maternal health and mentions supporting provider training to reduce biases in the delivery of care.
- The Centers for Medicare & Medicaid Services (CMS), in December 2023, announced a new value-based alternative payment model called the Transforming Maternal Health (TMaH) Model which is the first of its kind to focus solely on improving maternal health care for Medicaid and Children’s Health Insurance Program (CHIP) beneficiaries.
- California has implemented healthcare provider training to address health disparities.
For more information on the Proposed Rules or other maternal health policy developments, please contact attorneys in our State AG and Health Care practices, and professionals in Crowell Health Solutions. For weekly updates on recent State AG matters, sign up for Crowell & Moring’s State AG blog here.
For further information, please contact:
Derick D. Dailey, Crowell & Moring
ddailey@crowell.com
