Add 25, Pub Health L; amd 6509 & 6530, Ed L; amd 740 & 741, Lab L
Prohibits participation in torture and improper treatment of incarcerated individuals by health care professionals; prohibits a health care professional from engaging, assisting or planning the torture or improper treatment of an incarcerated individual; requires health care professionals to report torture and improper treatment.
STATE OF NEW YORK
________________________________________________________________________
3228--A
2023-2024 Regular Sessions
IN SENATE
January 30, 2023
___________
Introduced by Sens. HOYLMAN-SIGAL, BROUK, COMRIE, KAVANAGH, KRUEGER,
RIVERA, SALAZAR, SEPULVEDA -- read twice and ordered printed, and when
printed to be committed to the Committee on Health -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee
AN ACT to amend the public health law, the education law and the labor
law, in relation to prohibiting participation in torture and improper
treatment of incarcerated individuals by health care professionals
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative policy and intent. This legislation is based
2 on, and is intended to give effect to, international treaties and stand-
3 ards; federal, state and local law; and professional standards relating
4 to torture, improper treatment of incarcerated individuals, and related
5 matters. It is guided by two basic principles: (1) health care profes-
6 sionals shall be dedicated to providing the highest standard of health
7 care, with compassion and respect for human dignity and rights; and (2)
8 torture and improper treatment of incarcerated individuals are wrong and
9 inconsistent with the practice of the health care professions. The
10 legislature finds that the conduct prohibited by this act violates the
11 ethical and legal obligations of licensed health care professionals.
12 This legislation will further protect the professionalism of New York
13 state licensed health care professionals by authorizing and obligating
14 them to refuse to participate in torture and improper treatment of
15 incarcerated individuals, which in turn will protect the life and health
16 of the people of the state and those with whom New York licensed health
17 care professionals interact. A health care professional who comes to
18 the aid of an incarcerated individual should not be presumed to be in
19 violation when they are fulfilling the ethical principle of beneficence.
20 In contrast, a health care professional who, for example, attends to an
21 incarcerated individual in order to allow torture or improper treatment
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07802-02-3
S. 3228--A 2
1 to commence or continue is not acting beneficently. Such practices are
2 inconsistent with professional ethics and standards and are violations
3 of this legislation. The legislature is mindful that ordinarily there
4 are limits on New York state's jurisdiction relating to conduct outside
5 the state or under federal authority. However, it is proper for the
6 state to regulate health care professional licensure in relation to a
7 professional's conduct, even where the conduct occurs outside the state;
8 certain wrongful out-of-state conduct is already grounds for profes-
9 sional discipline. Therefore, it is the legislature's intent that this
10 legislation be applied to the fullest extent possible.
11 § 2. The public health law is amended by adding a new section 25 to
12 read as follows:
13 § 25. Participation in torture or improper treatment of incarcerated
14 individuals by health care professionals. 1. Definitions. As used in
15 this section, unless the context clearly requires otherwise, the follow-
16 ing terms have the following meanings:
17 (a) "Health care professional" means any person licensed, registered,
18 certified, or exempt to practice under (i) any of the following articles
19 of the education law: one hundred thirty-one (medicine), one hundred
20 thirty-one-B (physician assistants), one hundred thirty-one-C (special-
21 ist assistants), one hundred thirty-two (chiropractic), one hundred
22 thirty-three (dentistry, dental hygiene, and registered dental assist-
23 ing), one hundred thirty-six (physical therapy and physical therapist
24 assistants), one hundred thirty-seven (pharmacy), one hundred thirty-
25 nine (nursing), one hundred forty (professional midwifery practice act),
26 one hundred forty-one (podiatry), one hundred forty-three (optometry),
27 one hundred forty-four (ophthalmic dispensing), one hundred fifty-three
28 (psychology), one hundred fifty-four (social work), one hundred fifty-
29 five (massage therapy), one hundred fifty-six (occupational therapy),
30 one hundred fifty-seven (dietetics and nutrition), one hundred fifty-
31 nine (speech-language pathologists and audiologists), one hundred sixty
32 (acupuncture), one hundred sixty-three (mental health practitioners),
33 one hundred sixty-four (respiratory therapists and respiratory therapy
34 technicians), one hundred sixty-five (clinical laboratory technology
35 practice act), or one hundred sixty-six (medical physics practice), or
36 (ii) article thirty-five of this chapter (practice of radiologic tech-
37 nology).
38 (b) "Torture" means any intentional act or intentional omission by
39 which severe pain or suffering, whether physical or mental, is inflicted
40 on a person for no lawful purpose or for such purposes as obtaining from
41 the person or from a third person information or a confession, punishing
42 or disciplining or retaliating against the person for an act the person
43 or a third person has carried out (including the holding of a belief or
44 membership in any group) or is suspected of having or perceived to have
45 carried out, or intimidating or coercing the person or a third person,
46 or for any reason based on discrimination of any kind. For the purposes
47 of this section, it shall not be an element of torture that such acts be
48 committed by a government or non-government actor, entity, or official;
49 under color of law; or not under color of law.
50 (c) "Improper treatment" includes any cruel, inhuman or degrading
51 treatment or punishment as those terms are defined in and applied by
52 applicable international treaties including but not limited to the
53 Convention Against Torture, and Other Cruel, Inhumane, or Degrading
54 Treatment or Punishment, the International Covenant on Civil and Poli-
55 tical Rights, the United Nations Standard Minimum Rules for Treatment of
56 Prisoners, the Body of Principles for the Protection of All Persons
S. 3228--A 3
1 Under Any Form of Detention or Imprisonment, the Basic Principles for
2 the Treatment of Prisoners and, the United Nations Standard Minimum
3 Rules for the Administration of Juvenile Justice and their corresponding
4 interpreting bodies. Improper treatment also includes any cruel and
5 unusual punishment as defined in the United States Constitution or the
6 New York state constitution. Improper treatment also includes any
7 violation of subdivision three or four of this section, any form of
8 physical brutality, improper use of force, deprivation of food, water,
9 basic hygiene materials and access, or other basic human needs or living
10 conditions, or any violation of applicable New York state law governing
11 the proper treatment of incarcerated individuals. For the purposes of
12 this section, it shall not be an element of improper treatment that such
13 acts be committed by a government actor, entity, or official or by a
14 non-government actor, entity, or official; or that such acts be commit-
15 ted under color of law or not under color of law. The commissioner shall
16 provide guidance to health care professionals regarding acts or omis-
17 sions that constitute improper treatment under this section and post the
18 guidance on the department's website.
19 (d) "Incarcerated individual" means any person who is subject to
20 punishment, detention, incarceration, interrogation, intimidation or
21 coercion, regardless of whether such action is performed or committed by
22 a government or non-government actor, entity, or official; under color
23 of law; or not under color of law.
24 (e) To "adversely affect" a person's physical or mental health or
25 condition does not include causing adverse effects that may arise from
26 treatment or care when that treatment or care is performed in accordance
27 with generally applicable legal, health and professional standards and
28 for the purposes of evaluating, treating, protecting or improving the
29 person's health.
30 (f) "Interrogation" means the questioning related to law enforcement,
31 the enforcement of rules or regulations of an institution in which
32 people are detained through the criminal justice system or for military
33 or national security reasons (such as a jail or other detention facili-
34 ty, police facility, prison, immigration facility, or military facility)
35 or to military and national security intelligence gathering, whether by
36 a government or non-government actor, entity or official. "Interro-
37 gation" shall also include questioning to aid or accomplish any illegal
38 activity or purpose, whether by a government or non-government actor,
39 entity or official. Interrogations are distinct from questioning used by
40 health care professionals to assess the physical or mental condition of
41 an individual.
42 2. Knowledge. A health care professional who receives information
43 that indicates that an incarcerated individual as defined by this
44 section is being, may in the future be, or has been subjected to torture
45 or improper treatment, must use due diligence in fulfilling all of their
46 responsibilities under this section.
47 3. General obligations of health care professionals. (a) Every health
48 care professional shall provide every incarcerated individual under
49 their professional care with care or treatment consistent with generally
50 applicable legal, health and professional standards to the extent that
51 they are reasonably able to do so under the circumstances, including
52 protecting the confidentiality of patient information.
53 (b) In all clinical assessments relating to an incarcerated individ-
54 ual, whether for therapeutic or evaluative purposes, health care profes-
55 sionals shall exercise their professional judgment independent of the
56 interests of a government or other third party.
S. 3228--A 4
1 4. Certain conduct of health care professionals prohibited. (a) No
2 health care professional shall knowingly, recklessly, or negligently
3 apply their knowledge or skills in relation to, engage in any profes-
4 sional relationship with, or perform professional services in relation
5 to any incarcerated individual unless the purpose is solely to evaluate,
6 treat, protect, or improve the physical or mental health or condition of
7 the incarcerated individual (except as permitted by paragraph (b) or (c)
8 of subdivision five of this section).
9 (b) No health care professional shall knowingly, recklessly, or negli-
10 gently engage, directly or indirectly, in any act which constitutes
11 torture or improper treatment of an incarcerated individual, which may
12 include participation in, complicity in, incitement to, assistance in,
13 planning or design of, cover up of, failure to document, or attempt or
14 conspiracy to commit such torture or improper treatment. Prohibited
15 forms of engagement include but are not limited to:
16 (i) knowingly, recklessly, or negligently providing means, knowledge
17 or skills, including clinical findings or treatment, with the intent to
18 facilitate the practice of torture or improper treatment;
19 (ii) knowingly, recklessly, or negligently permitting their knowledge,
20 skills or clinical findings or treatment to be used in the process of or
21 to facilitate torture or improper treatment;
22 (iii) knowingly, recklessly, or negligently examining, evaluating, or
23 treating an incarcerated individual to certify whether torture or
24 improper treatment can begin, be continued, or be resumed;
25 (iv) being present while torture or improper treatment is being admin-
26 istered;
27 (v) omitting or suppressing indications of torture or improper treat-
28 ment from records or reports; and
29 (vi) altering health care records or reports to hide, misrepresent or
30 destroy evidence of torture or improper treatment.
31 (c) No health care professional shall knowingly, recklessly, or negli-
32 gently apply their knowledge or skills or perform any professional
33 service in order to assist in the punishment, detention, incarceration,
34 intimidation, or coercion of an incarcerated individual when such
35 assistance is provided in a manner that may adversely affect the phys-
36 ical or mental health or condition of the incarcerated individual
37 (except as permitted by paragraph (a) or (b) of subdivision five of this
38 section).
39 (d) No health care professional shall participate in the interrogation
40 of an incarcerated individual, including being present in the interro-
41 gation room, asking or suggesting questions, advising on the use of
42 specific interrogation techniques, monitoring the interrogation, or
43 medically or psychologically evaluating a person for the purpose of
44 identifying potential interrogation methods or strategies. However, this
45 paragraph shall not bar a health care professional from being present
46 for the interrogation of a minor under paragraph (a) of subdivision five
47 of this section or engaging in conduct under paragraph (d) of subdivi-
48 sion five of this section.
49 5. Certain conduct of health care professionals permitted. A health
50 care professional may engage in the following conduct so long as it does
51 not violate subdivision three or four of this section, it does not
52 adversely affect the physical or mental health or condition of an incar-
53 cerated individual or potential subject, and is not otherwise unlawful:
54 (a) appropriately participating or aiding in the investigation, prose-
55 cution, or defense of a criminal, administrative or civil matter,
56 including presence during the interrogation of a minor at the request of
S. 3228--A 5
1 the minor or the minor's parent or guardian and for the purpose of
2 supporting the health of the minor;
3 (b) participating in an act that restrains an incarcerated individual
4 or temporarily alters the physical or mental activity of an incarcerated
5 individual, where the act complies with generally applicable legal,
6 health and professional standards, is necessary for the protection of
7 the physical or mental health, condition or safety of the incarcerated
8 individual, other incarcerated individuals, or persons caring for,
9 guarding or confining the incarcerated individual;
10 (c) conducting bona fide human subject research in accordance with
11 generally accepted legal, health and professional standards where the
12 research includes safeguards for human subjects equivalent to those
13 required by federal law, including informed consent and institutional
14 review board approval where applicable;
15 (d) training related to the following purposes, so long as it is not
16 provided in support of specific ongoing or anticipated interrogations:
17 (i) recognizing and responding to persons with physical or mental
18 illness or conditions,
19 (ii) the possible physical and mental effects of particular techniques
20 and conditions of interrogation, or
21 (iii) the development of effective interrogation strategies not
22 involving the practice of torture or improper treatment.
23 6. Duty to report. A health care professional who has reasonable
24 grounds (not based solely on publicly available information) to believe
25 that torture, improper treatment or other conduct in violation of this
26 section has occurred, is occurring, or will occur shall, as soon as is
27 possible without jeopardizing the physical safety of such professional,
28 the incarcerated individual, or other parties, report such conduct to:
29 (a) a government agency that the health care professional reasonably
30 believes has legal authority to punish or prevent the continuation of
31 torture or the improper treatment of an incarcerated individual or
32 conduct in violation of this section and is reasonably likely to attempt
33 to do so; or
34 (b) a governmental or non-governmental entity that the health care
35 professional reasonably believes will notify such a government agency of
36 the torture or the improper treatment of an incarcerated individual or
37 conduct in violation of this section or take other action to publicize
38 or prevent such torture, treatment or conduct; and
39 (c) in addition to reporting under paragraph (a) or (b) of this subdi-
40 vision: (i) in the case of an alleged violation by a health care profes-
41 sional licensed under article one hundred thirty-one, one hundred thir-
42 ty-one-B or one hundred thirty-one-C of the education law, a report
43 shall be filed with the office of professional medical conduct; and (ii)
44 in the case of an alleged violation by any other health care profes-
45 sional licensed, registered or certified under title eight of the educa-
46 tion law, a report shall be filed with the office of professional disci-
47 pline; provided that for the purpose of this paragraph, where a person
48 holds a license, registration or certification under the laws of a
49 jurisdiction other than the state of New York that is for a profession
50 substantially comparable to one listed in paragraph (a) of subdivision
51 one of this section, the person shall be deemed to be a health care
52 professional and the person's license, registration or certification
53 shall be deemed to be under the appropriate article of title eight of
54 the education law.
S. 3228--A 6
1 7. Mitigation. The following may be considered in full or partial
2 mitigation of a violation of this section by the health care profes-
3 sional:
4 (a) compliance with subdivision six of this section; or
5 (b) cooperation in good faith with an investigation of a violation of
6 this section.
7 8. Applicability. This section shall apply to conduct taking place
8 within or outside New York state, and without regard to whether the
9 conduct is committed by a governmental or non-governmental entity, offi-
10 cial, or actor or under actual or asserted color of law.
11 9. Scope of practice not expanded. This section shall not be construed
12 to expand the lawful scope of practice of any health care professional.
13 § 3. Section 6509 of the education law is amended by adding a new
14 subdivision 15 to read as follows:
15 (15) Any violation of section twenty-five of the public health law
16 (relating to participation in torture or improper treatment of incarcer-
17 ated individuals by health care professionals), subject to mitigation
18 under that section.
19 § 4. Section 6530 of the education law is amended by adding a new
20 subdivision 51 to read as follows:
21 51. Any violation of section twenty-five of the public health law
22 (relating to participation in torture or improper treatment of incarcer-
23 ated individuals by health care professionals), subject to mitigation
24 under that section.
25 § 5. Paragraphs (b) and (c) of subdivision 2 of section 740 of the
26 labor law, as amended by chapter 522 of the laws of 2021, are amended
27 and a new paragraph (d) is added to read as follows:
28 (b) provides information to, or testifies before, any public body
29 conducting an investigation, hearing or inquiry into any such activity,
30 policy or practice by such employer; [or]
31 (c) objects to, or refuses to participate in any such activity, policy
32 or practice[.]; or
33 (d) reports or threatens to report any violation of section twenty-
34 five of the public health law (relating to participation in torture or
35 improper treatment of incarcerated individuals by health care profes-
36 sionals).
37 § 6. Subdivision 3 of section 740 of the labor law, as amended by
38 chapter 522 of the laws of 2021, is amended to read as follows:
39 3. Application. The protection against retaliatory action provided by
40 paragraph (a) of subdivision two of this section pertaining to disclo-
41 sure to a public body shall not apply to an employee who makes such
42 disclosure to a public body unless the employee has made a good faith
43 effort to notify [his or her] their employer by bringing the activity,
44 policy or practice to the attention of a supervisor of the employer and
45 has afforded such employer a reasonable opportunity to correct such
46 activity, policy or practice. Such employer notification shall not be
47 required where: (a) there is an imminent and serious danger to the
48 public health or safety; (b) the employee reasonably believes that
49 reporting to the supervisor would result in a destruction of evidence or
50 other concealment of the activity, policy or practice; (c) such activ-
51 ity, policy or practice could reasonably be expected to lead to endan-
52 gering the welfare of a minor; (d) the employee reasonably believes that
53 reporting to the supervisor would result in physical harm to the employ-
54 ee or any other person; [or] (e) the employee reasonably believes that
55 the supervisor is already aware of the activity, policy or practice and
56 will not correct such activity, policy or practice; or (f) such activ-
S. 3228--A 7
1 ity, policy, or practice constitutes a violation under section twenty-
2 five of the public health law (participation in torture or improper
3 treatment of incarcerated individuals by health care professionals).
4 § 7. Paragraphs (a) and (b) of subdivision 2 of section 741 of the
5 labor law, as amended by chapter 117 of the laws of 2020, are amended
6 and a new paragraph (c) is added to read as follows:
7 (a) discloses or threatens to disclose to a supervisor, to a public
8 body, to a news media outlet, or to a social media forum available to
9 the public at large, an activity, policy or practice of the employer or
10 agent that the employee, in good faith, reasonably believes constitutes
11 improper quality of patient care or improper quality of workplace safe-
12 ty; [or]
13 (b) objects to, or refuses to participate in any activity, policy or
14 practice of the employer or agent that the employee, in good faith,
15 reasonably believes constitutes improper quality of patient care or
16 improper quality of workplace safety[.]; or
17 (c) reports or threatens to report any violation of section twenty-
18 five of the public health law (participation in torture or improper
19 treatment of incarcerated individuals by health care professionals).
20 § 8. Subdivision 3 of section 741 of the labor law, as amended by
21 chapter 117 of the laws of 2020, is amended to read as follows:
22 3. Application. The protection against retaliatory personnel action
23 provided by subdivision two of this section shall not apply unless the
24 employee has brought the improper quality of patient care or improper
25 quality of workplace safety to the attention of a supervisor and has
26 afforded the employer a reasonable opportunity to correct such activity,
27 policy or practice. This subdivision shall not apply to an action or
28 failure to act described in paragraph (a) of subdivision two of this
29 section where the improper quality of patient care or improper quality
30 of workplace safety described therein presents an imminent threat to
31 public health or safety or to the health of a specific patient or
32 specific health care employee and the employee reasonably believes in
33 good faith that reporting to a supervisor would not result in corrective
34 action; or to any report of a violation under section twenty-five of the
35 public health law (participation in torture or improper treatment of
36 incarcerated individuals by health care professionals).
37 § 9. The introduction or enactment of this act shall not be construed
38 to mean that: (a) conduct described by this act does not already violate
39 state law or constitute professional misconduct; or (b) conduct other
40 than that described by this act does not violate other state law or
41 otherwise constitute professional misconduct.
42 § 10. Severability. If any provision of this act, or any application
43 of any provision of this act, is held to be invalid, that shall not
44 affect the validity or effectiveness of any other provision of this act
45 or any other application of any provision of this act.
46 § 11. This act shall take effect on the first of January next
47 succeeding the date on which it shall have become a law.
