A01192 Summary:

BILL NOA01192
 
SAME ASSAME AS S00596
 
SPONSORGottfried (MS)
 
COSPNSRCahill, Rivera, Glick, Paulin, Jaffee, Lifton, Cook, Perry, Englebright, O'Donnell, Arroyo, Rosenthal L, Hevesi, Bronson, Fahy, Mosley, Weprin, Otis, Steck, Pichardo, Aubry, Ortiz, Seawright, Lavine, D'Urso, Simotas, Dickens, Taylor, Raia, Simon, Barron, Sayegh, Cruz, McDonald, Reyes, Abinanti, Raynor, Fernandez
 
MLTSPNSRCarroll, Dinowitz, Epstein, Galef, Hunter, Lupardo, Peoples-Stokes, Pretlow
 
Add 25, Pub Health L; amd 6509 & 6530, Ed L; amd 740 & 741, Lab L
 
Prohibits participation in torture and improper treatment of prisoners by health care professionals; prohibits a health care professional from engaging, assisting, planning the torture or improper treatment of a prisoner; requires health care professionals to report torture and improper treatment.
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A01192 Actions:

BILL NOA01192
 
01/14/2019referred to higher education
05/07/2019reported referred to codes
05/21/2019reported
05/23/2019advanced to third reading cal.382
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A01192 Committee Votes:

HIGHER EDUCATION Chair:Glick DATE:05/07/2019AYE/NAY:21/2 Action: Favorable refer to committee Codes
GlickAyeSmithAye
GottfriedAyeFitzpatrickNay
EnglebrightAyeGarbarinoNay
CahillExcusedAshbyAye
LiftonAyeReillyAye
CusickAyeSalkaAye
LupardoAyeWalczykAye
StirpeAye
FahyAye
PichardoAye
SimonExcused
McDonaldAye
BichotteExcused
HyndmanAye
EpsteinAye
GriffinAye
RomeoAye
McMahonAye
ButtenschonAye

CODES Chair:Lentol DATE:05/21/2019AYE/NAY:15/6 Action: Favorable
LentolAyeRaNay
SchimmingerAyeGiglioNay
PretlowAbsentMontesanoNay
CookAyeMorinelloNay
CymbrowitzAyePalumboNay
O'DonnellAyeGarbarinoNay
LavineAye
PerryAye
ZebrowskiAye
AbinantiAye
WeprinAye
MosleyAye
HevesiAye
FahyAye
SeawrightAye
RosenthalAye

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A01192 Floor Votes:

There are no votes for this bill in this legislative session.
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A01192 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1192
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 14, 2019
                                       ___________
 
        Introduced by M. of A. GOTTFRIED, CAHILL, RIVERA, GLICK, PAULIN, JAFFEE,
          LIFTON,  COOK,  PERRY,  ENGLEBRIGHT,  O'DONNELL, ARROYO, L. ROSENTHAL,
          HEVESI, BRONSON, FAHY, MOSLEY, WEPRIN, OTIS, STECK,  PICHARDO,  AUBRY,
          ORTIZ,  SEAWRIGHT,  LAVINE,  D'URSO,  SIMOTAS,  DICKENS, TAYLOR, RAIA,
          SIMON, BARRON -- Multi-Sponsored by -- M.  of  A.  CARROLL,  DINOWITZ,
          EPSTEIN,  GALEF, HUNTER, LUPARDO, PEOPLES-STOKES, PRETLOW -- read once
          and referred to the Committee on Higher Education
 
        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 prisoners 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 prisoners, and related matters. It is
     5  guided by two basic principles: (1) health care professionals  shall  be
     6  dedicated  to  providing  the  highest  standard  of  health  care, with
     7  compassion and respect for human dignity and rights; and (2) torture and
     8  improper treatment of prisoners are  wrong  and  inconsistent  with  the
     9  practice  of the health care professions. The legislature finds that the
    10  conduct prohibited by this act violates  the  ethical  and  legal  obli-
    11  gations  of  licensed  health care professionals.  This legislation will
    12  further protect the professionalism of New York  state  licensed  health
    13  care  professionals  by  authorizing  and  obligating  them to refuse to
    14  participate in torture and improper treatment  of  prisoners,  which  in
    15  turn  will  protect  the  life and health of the people of the state and
    16  those with whom New York licensed health care professionals interact.  A
    17  health care professional who comes to the aid of a prisoner  should  not
    18  be  presumed to be in violation when she or he is fulfilling the ethical
    19  principle of beneficence. In contrast, a health care  professional  who,
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03431-01-9

        A. 1192                             2
 
     1  for example, attends to a prisoner in order to allow torture or improper
     2  treatment  to  commence  or  continue is not acting beneficently.   Such
     3  practices are inconsistent with professional ethics  and  standards  and
     4  are  violations  of  this legislation.   The legislature is mindful that
     5  ordinarily there are limits on New York state's jurisdiction relating to
     6  conduct outside the state or under federal  authority.  However,  it  is
     7  proper  for  the state to regulate health care professional licensure in
     8  relation to a professional's conduct,  even  where  the  conduct  occurs
     9  outside  the  state;  certain  wrongful  out-of-state conduct is already
    10  grounds for professional discipline. Therefore, it is the  legislature's
    11  intent that this legislation be applied to the fullest extent possible.
    12    §  2.  The  public health law is amended by adding a new section 25 to
    13  read as follows:
    14    § 25. Participation in torture or improper treatment of  prisoners  by
    15  health care professionals.  1. Definitions. As used in this section, the
    16  terms "torture" and "improper treatment" shall be interpreted in accord-
    17  ance  with applicable law, including international treaties to which the
    18  United States is a party.  However, for the purposes of this section, it
    19  shall not be an element of either "torture" or "improper treatment" that
    20  such acts be committed by a government or non-government actor,  entity,
    21  or  official;  under color of law; or not under color of law. As used in
    22  this section, unless the context clearly requires otherwise, the follow-
    23  ing terms have the following meanings:
    24    (a) "Health care professional" means any person licensed,  registered,
    25  certified, or exempt to practice under (i) any of the following articles
    26  of  the  education  law:  one hundred thirty-one (medicine), one hundred
    27  thirty-one-B (physician assistants), one hundred thirty-one-C  (special-
    28  ist  assistants),  one  hundred  thirty-two  (chiropractic), one hundred
    29  thirty-three (dentistry and  dental  hygiene),  one  hundred  thirty-six
    30  (physical  therapy and physical therapist assistants), one hundred thir-
    31  ty-seven (pharmacy), one  hundred  thirty-nine  (nursing),  one  hundred
    32  forty  (professional  midwifery  practice  act),  one  hundred forty-one
    33  (podiatry), one hundred forty-three (optometry), one hundred  forty-four
    34  (ophthalmic  dispensing),  one  hundred  fifty-three  (psychology),  one
    35  hundred fifty-four (social work), one hundred fifty-five (massage thera-
    36  py), one hundred fifty-six (occupational therapy),  one  hundred  fifty-
    37  seven (dietetics and nutrition), one hundred fifty-nine (speech-language
    38  pathologists  and  audiologists),  one  hundred sixty (acupuncture), one
    39  hundred sixty-three (mental health practitioners),  one  hundred  sixty-
    40  four  (respiratory  therapists and respiratory therapy technicians), one
    41  hundred sixty-five (clinical laboratory technology practice act), or one
    42  hundred sixty-six (medical physics practice), or  (ii)  article  thirty-
    43  five of this chapter (practice of radiologic technology).
    44    (b)  "Torture"  means  any  intentional act or intentional omission by
    45  which severe pain or suffering, whether physical or mental, is inflicted
    46  on a person for such purposes as obtaining from the  person  or  from  a
    47  third  person  information  or a confession, punishing the person for an
    48  act the person or a third person has committed (including the holding of
    49  a belief or membership in any group) or is suspected of  having  commit-
    50  ted,  or  intimidating  or coercing the person or a third person, or for
    51  any reason based on discrimination of any kind.   It  does  not  include
    52  pain or suffering arising only from, inherent in or incidental to lawful
    53  sanction.
    54    (c) "Improper treatment" means (i) cruel, inhuman or degrading, treat-
    55  ment  or  punishment as defined by applicable international treaties and
    56  their corresponding interpreting bodies; or cruel and unusual punishment

        A. 1192                             3
 
     1  as defined in the United States  Constitution  or  the  New  York  state
     2  constitution; or (ii) any violation of subdivision three or four of this
     3  section.
     4    (d)  "Prisoner"  means  any  person  who  is  subject  to  punishment,
     5  detention,  incarceration,  interrogation,  intimidation  or   coercion,
     6  regardless of whether such action is performed or committed by a govern-
     7  ment  or  non-government actor, entity, or official; under color of law;
     8  or not under color of law.
     9    (e) To "adversely affect" a person's  physical  or  mental  health  or
    10  condition  does  not include causing adverse effects that may arise from
    11  treatment or care when that treatment or care is performed in accordance
    12  with generally applicable legal, health and professional  standards  and
    13  for  the  purposes  of evaluating, treating, protecting or improving the
    14  person's health.
    15    (f) "Interrogation" means the questioning related to law  enforcement,
    16  the  enforcement  of  rules  or  regulations  of an institution in which
    17  people are detained through the criminal justice system or for  military
    18  or  national security reasons (such as a jail or other detention facili-
    19  ty, police facility, prison, immigration facility, or military facility)
    20  or to military and national security intelligence gathering, whether  by
    21  a  government  or  non-government  actor,  entity or official. "Interro-
    22  gation" shall also include questioning to aid or accomplish any  illegal
    23  activity  or  purpose,  whether by a government or non-government actor,
    24  entity or official. Interrogations are distinct from questioning used by
    25  health care professionals to assess the physical or mental condition  of
    26  an individual.
    27    2.  Knowledge. It shall be an element of any violation of this section
    28  that the actor knew or reasonably should have  known  that  his  or  her
    29  conduct  is  of  the  kind  prohibited under this section. A health care
    30  professional who receives information that indicates that a prisoner  as
    31  defined  by  this  section  is  being, may in the future be, or has been
    32  subjected to torture or improper treatment, must use due  diligence,  in
    33  order  to  assess  the  nature  of his or her conduct as covered by this
    34  section.
    35    3. General obligations of health care professionals.  (a) Every health
    36  care professional shall provide every prisoner under his or her  profes-
    37  sional  care with care or treatment consistent with generally applicable
    38  legal, health and professional standards to the extent that he or she is
    39  reasonably able to do so under the circumstances,  including  protecting
    40  the confidentiality of patient information.
    41    (b)  In  all  clinical assessments relating to a prisoner, whether for
    42  therapeutic or evaluative  purposes,  health  care  professionals  shall
    43  exercise  their  professional judgment independent of the interests of a
    44  government or other third party.
    45    4. Certain conduct of health care professionals prohibited.    (a)  No
    46  health  care  professional shall apply his or her knowledge or skills in
    47  relation to, engage in any professional relationship  with,  or  perform
    48  professional  services in relation to any prisoner unless the purpose is
    49  solely to evaluate, treat, protect, or improve the  physical  or  mental
    50  health  or  condition  of the prisoner (except as permitted by paragraph
    51  (b) or (c) of subdivision five of this section).
    52    (b) No health care professional shall engage, directly or  indirectly,
    53  in any act which constitutes participation in, complicity in, incitement
    54  to,  assistance  in,  planning or design of, or attempt or conspiracy to
    55  commit torture or improper treatment of a prisoner. Prohibited forms  of
    56  engagement include but are not limited to:

        A. 1192                             4

     1    (i)  providing means, knowledge or skills, including clinical findings
     2  or treatment, with the intent to facilitate the practice of  torture  or
     3  improper treatment;
     4    (ii)  permitting  his or her knowledge, skills or clinical findings or
     5  treatment to be used in the process  of  or  to  facilitate  torture  or
     6  improper treatment;
     7    (iii) examining, evaluating, or treating a prisoner to certify whether
     8  torture or improper treatment can begin, be continued, or be resumed;
     9    (iv) being present while torture or improper treatment is being admin-
    10  istered;
    11    (v)  omitting or suppressing indications of torture or improper treat-
    12  ment from records or reports; and
    13    (vi) altering health care records or reports to hide, misrepresent  or
    14  destroy evidence of torture or improper treatment.
    15    (c)  No  health  care professional shall apply his or her knowledge or
    16  skills or perform any professional service in order  to  assist  in  the
    17  punishment,  detention,  incarceration,  intimidation,  or coercion of a
    18  prisoner when such assistance is provided in a manner that may adversely
    19  affect the physical or  mental  health  or  condition  of  the  prisoner
    20  (except as permitted by paragraph (a) or (b) of subdivision five of this
    21  section).
    22    (d) No health care professional shall participate in the interrogation
    23  of a prisoner, including being present in the interrogation room, asking
    24  or  suggesting  questions, advising on the use of specific interrogation
    25  techniques, monitoring the interrogation, or medically or psychological-
    26  ly evaluating a person for the purpose of identifying potential interro-
    27  gation methods or strategies. However, this paragraph shall  not  bar  a
    28  health care professional from engaging in conduct under paragraph (d) of
    29  subdivision five of this section.
    30    5.  Certain  conduct  of health care professionals permitted. A health
    31  care professional may engage in the following conduct so long as it does
    32  not violate subdivision three or four  of  this  section,  it  does  not
    33  adversely affect the physical or mental health or condition of a prison-
    34  er or potential subject, and is not otherwise unlawful:
    35    (a) appropriately participating or aiding in the investigation, prose-
    36  cution, or defense of a criminal, administrative or civil matter;
    37    (b)  participating  in an act that restrains a prisoner or temporarily
    38  alters the physical or mental activity of  a  prisoner,  where  the  act
    39  complies with generally applicable legal, health and professional stand-
    40  ards,  is necessary for the protection of the physical or mental health,
    41  condition or safety of the prisoner, other prisoners, or persons  caring
    42  for, guarding or confining the prisoner;
    43    (c)  conducting  bona  fide  human subject research in accordance with
    44  generally accepted legal, health and professional  standards  where  the
    45  research  includes  safeguards  for  human  subjects equivalent to those
    46  required by federal law, including informed  consent  and  institutional
    47  review board approval where applicable;
    48    (d)  training  related to the following purposes, so long as it is not
    49  provided in support of specific ongoing or anticipated interrogations:
    50    (i) recognizing and responding to  persons  with  physical  or  mental
    51  illness or conditions,
    52    (ii) the possible physical and mental effects of particular techniques
    53  and conditions of interrogation, or
    54    (iii)  the  development  of  effective  interrogation  strategies  not
    55  involving the practice of torture or improper treatment.

        A. 1192                             5

     1    6. Duty to report. A  health  care  professional  who  has  reasonable
     2  grounds  (not based solely on publicly available information) to believe
     3  that torture, improper treatment or other conduct in violation  of  this
     4  section  has  occurred, is occurring, or will occur shall, as soon as is
     5  possible without jeopardizing the physical safety of himself or herself,
     6  the prisoner, or other parties, report such conduct to:
     7    (a)  a  government agency that the health care professional reasonably
     8  believes has legal authority to punish or prevent  the  continuation  of
     9  torture  or the improper treatment of a prisoner or conduct in violation
    10  of this section and is reasonably likely to attempt to do so; or
    11    (b) a governmental or non-governmental entity  that  the  health  care
    12  professional reasonably believes will notify such a government agency of
    13  the  torture  or  the  improper  treatment  of  a prisoner or conduct in
    14  violation of this section or take other action to publicize  or  prevent
    15  such torture, treatment or conduct; and
    16    (c) in addition to reporting under paragraph (a) or (b) of this subdi-
    17  vision: (i) in the case of an alleged violation by a health care profes-
    18  sional  licensed under article one hundred thirty-one, one hundred thir-
    19  ty-one-B or one hundred thirty-one-C of  the  education  law,  a  report
    20  shall be filed with the office of professional medical conduct; and (ii)
    21  in  the  case  of  an alleged violation by any other health care profes-
    22  sional licensed, registered or certified under title eight of the educa-
    23  tion law, a report shall be filed with the office of professional disci-
    24  pline; provided that for the purpose of this paragraph, where  a  person
    25  holds  a  license,  registration  or  certification  under the laws of a
    26  jurisdiction other than the state of New York that is for  a  profession
    27  substantially  comparable  to one listed in paragraph (a) of subdivision
    28  one of this section, the person shall be deemed  to  be  a  health  care
    29  professional  and  the  person's  license, registration or certification
    30  shall be deemed to be under the appropriate article of  title  eight  of
    31  the education law.
    32    7.  Mitigation.  The  following  may  be considered in full or partial
    33  mitigation of a violation of this section by  the  health  care  profes-
    34  sional:
    35    (a) compliance with subdivision six of this section; or
    36    (b)  cooperation in good faith with an investigation of a violation of
    37  this section.
    38    8. Applicability. This section shall apply  to  conduct  taking  place
    39  within  or  outside  New  York  state, and without regard to whether the
    40  conduct is committed by a governmental or non-governmental entity, offi-
    41  cial, or actor or under actual or asserted color of law.
    42    9. Scope of practice not expanded. This section shall not be construed
    43  to expand the lawful scope of practice of any health care professional.
    44    § 3. Section 6509 of the education law is  amended  by  adding  a  new
    45  subdivision 15 to read as follows:
    46    (15)  Any  violation  of  section twenty-five of the public health law
    47  (relating to participation in torture or improper treatment of prisoners
    48  by health care professionals), subject to mitigation under that section.
    49    § 4. Section 6530 of the education law is  amended  by  adding  a  new
    50  subdivision 50 to read as follows:
    51    50.  Any  violation  of  section  twenty-five of the public health law
    52  (relating to participation in torture or improper treatment of prisoners
    53  by health care professionals), subject to mitigation under that section.
    54    § 5. Paragraphs (b) and (c) of subdivision 2 of  section  740  of  the
    55  labor  law, as added by chapter 660 of the laws of 1984, are amended and
    56  a new paragraph (d) is added to read as follows:

        A. 1192                             6
 
     1    (b) provides information to, or  testifies  before,  any  public  body
     2  conducting  an investigation, hearing or inquiry into any such violation
     3  of a law, rule or regulation by such employer; [or]
     4    (c) objects to, or refuses to participate in any such activity, policy
     5  or practice in violation of a law, rule or regulation[.]; or
     6    (d)  reports  or  threatens to report any violation of section twenty-
     7  five of the public health law (relating to participation in  torture  or
     8  improper treatment of prisoners by health care professionals).
     9    §  6. Subdivision 3 of section 740 of the labor law, as added by chap-
    10  ter 660 of the laws of 1984, is amended to read as follows:
    11    3. Application. The protection against  retaliatory  personnel  action
    12  provided  by paragraph (a) of subdivision two of this section pertaining
    13  to disclosure to a public body shall not apply to an employee who  makes
    14  such  disclosure  to  a  public body unless the employee has brought the
    15  activity, policy or practice in violation of law, rule or regulation  to
    16  the  attention  of  a  supervisor  of the employer and has afforded such
    17  employer a reasonable opportunity to correct such  activity,  policy  or
    18  practice.  However,  this subdivision shall not apply to any report of a
    19  violation under section twenty-five of the public  health  law  (partic-
    20  ipation  in  torture  or  improper treatment of prisoners by health care
    21  professionals).
    22    § 7. Paragraphs (a) and (b) of subdivision 2 of  section  741  of  the
    23  labor law, as added by chapter 24 of the laws of 2002, are amended and a
    24  new paragraph (c) is added to read as follows:
    25    (a) discloses or threatens to disclose to a supervisor, or to a public
    26  body  an  activity, policy or practice of the employer or agent that the
    27  employee, in good faith, reasonably believes constitutes improper quali-
    28  ty of patient care; [or]
    29    (b) objects to, or refuses to participate in any activity,  policy  or
    30  practice  of  the  employer  or  agent that the employee, in good faith,
    31  reasonably believes constitutes improper quality of patient care[.]; or
    32    (c) reports or threatens to report any violation  of  section  twenty-
    33  five  of  the  public  health  law (participation in torture or improper
    34  treatment of prisoners by health care professionals).
    35    § 8. Subdivision 3 of section 741 of the labor law, as added by  chap-
    36  ter 24 of the laws of 2002, is amended to read as follows:
    37    3.  Application.  The  protection against retaliatory personnel action
    38  provided by subdivision two of this section shall not apply  unless  the
    39  employee  has brought the improper quality of patient care to the atten-
    40  tion of a supervisor and has afforded the employer a reasonable opportu-
    41  nity to correct such activity,  policy  or  practice.  This  subdivision
    42  shall  not  apply  to an action or failure to act described in paragraph
    43  (a) of subdivision two of this section where  the  improper  quality  of
    44  patient  care  described  therein  presents an imminent threat to public
    45  health or safety or to the health of a specific patient and the employee
    46  reasonably believes in good faith that reporting to a  supervisor  would
    47  not  result  in corrective action.   However, this subdivision shall not
    48  apply to any report of a violation  under  section  twenty-five  of  the
    49  public  health  law  (participation  in torture or improper treatment of
    50  prisoners by health care professionals).
    51    § 9. The introduction or enactment of this act shall not be  construed
    52  to mean that: (a) conduct described by this act does not already violate
    53  state  law  or  constitute professional misconduct; or (b) conduct other
    54  than that described by this act does not  violate  other  state  law  or
    55  otherwise constitute professional misconduct.

        A. 1192                             7
 
     1    §  10.  Severability. If any provision of this act, or any application
     2  of any provision of this act, is held to  be  invalid,  that  shall  not
     3  affect  the validity or effectiveness of any other provision of this act
     4  or any other application of any provision of this act.
     5    §  11.    This  act  shall  take  effect  on the first of January next
     6  succeeding the date on which it shall have become a law.
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