S00596 Summary:

BILL NOS00596
 
SAME ASSAME AS A01192
 
SPONSORHOYLMAN
 
COSPNSRBENJAMIN, BIAGGI, KAVANAGH, KRUEGER, MONTGOMERY, RIVERA, SALAZAR, SEPULVEDA
 
MLTSPNSR
 
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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S00596 Actions:

BILL NOS00596
 
01/09/2019REFERRED TO HEALTH
01/08/2020REFERRED TO HEALTH
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S00596 Committee Votes:

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S00596 Floor Votes:

There are no votes for this bill in this legislative session.
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S00596 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           596
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                     January 9, 2019
                                       ___________
 
        Introduced by Sens. HOYLMAN, KAVANAGH, KRUEGER, MONTGOMERY, SEPULVEDA --
          read  twice  and  ordered printed, and when printed to be committed to
          the Committee on Health
 
        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,
    20  for example, attends to a prisoner in order to allow torture or improper
    21  treatment  to  commence  or  continue is not acting beneficently.   Such
    22  practices are inconsistent with professional ethics  and  standards  and
    23  are  violations  of  this legislation.   The legislature is mindful that
    24  ordinarily there are limits on New York state's jurisdiction relating to
    25  conduct outside the state or under federal  authority.  However,  it  is
    26  proper  for  the state to regulate health care professional licensure in
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03431-01-9

        S. 596                              2
 
     1  relation to a professional's conduct,  even  where  the  conduct  occurs
     2  outside  the  state;  certain  wrongful  out-of-state conduct is already
     3  grounds for professional discipline. Therefore, it is the  legislature's
     4  intent that this legislation be applied to the fullest extent possible.
     5    §  2.  The  public health law is amended by adding a new section 25 to
     6  read as follows:
     7    § 25. Participation in torture or improper treatment of  prisoners  by
     8  health care professionals.  1. Definitions. As used in this section, the
     9  terms "torture" and "improper treatment" shall be interpreted in accord-
    10  ance  with applicable law, including international treaties to which the
    11  United States is a party.  However, for the purposes of this section, it
    12  shall not be an element of either "torture" or "improper treatment" that
    13  such acts be committed by a government or non-government actor,  entity,
    14  or  official;  under color of law; or not under color of law. 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 and  dental  hygiene),  one  hundred  thirty-six
    23  (physical  therapy and physical therapist assistants), one hundred thir-
    24  ty-seven (pharmacy), one  hundred  thirty-nine  (nursing),  one  hundred
    25  forty  (professional  midwifery  practice  act),  one  hundred forty-one
    26  (podiatry), one hundred forty-three (optometry), one hundred  forty-four
    27  (ophthalmic  dispensing),  one  hundred  fifty-three  (psychology),  one
    28  hundred fifty-four (social work), one hundred fifty-five (massage thera-
    29  py), one hundred fifty-six (occupational therapy),  one  hundred  fifty-
    30  seven (dietetics and nutrition), one hundred fifty-nine (speech-language
    31  pathologists  and  audiologists),  one  hundred sixty (acupuncture), one
    32  hundred sixty-three (mental health practitioners),  one  hundred  sixty-
    33  four  (respiratory  therapists and respiratory therapy technicians), one
    34  hundred sixty-five (clinical laboratory technology practice act), or one
    35  hundred sixty-six (medical physics practice), or  (ii)  article  thirty-
    36  five of this chapter (practice of radiologic technology).
    37    (b)  "Torture"  means  any  intentional act or intentional omission by
    38  which severe pain or suffering, whether physical or mental, is inflicted
    39  on a person for such purposes as obtaining from the  person  or  from  a
    40  third  person  information  or a confession, punishing the person for an
    41  act the person or a third person has committed (including the holding of
    42  a belief or membership in any group) or is suspected of  having  commit-
    43  ted,  or  intimidating  or coercing the person or a third person, or for
    44  any reason based on discrimination of any kind.   It  does  not  include
    45  pain or suffering arising only from, inherent in or incidental to lawful
    46  sanction.
    47    (c) "Improper treatment" means (i) cruel, inhuman or degrading, treat-
    48  ment  or  punishment as defined by applicable international treaties and
    49  their corresponding interpreting bodies; or cruel and unusual punishment
    50  as defined in the United States  Constitution  or  the  New  York  state
    51  constitution; or (ii) any violation of subdivision three or four of this
    52  section.
    53    (d)  "Prisoner"  means  any  person  who  is  subject  to  punishment,
    54  detention,  incarceration,  interrogation,  intimidation  or   coercion,
    55  regardless of whether such action is performed or committed by a govern-

        S. 596                              3
 
     1  ment  or  non-government actor, entity, or official; under color of law;
     2  or not under color of law.
     3    (e)  To  "adversely  affect"  a  person's physical or mental health or
     4  condition does not include causing adverse effects that may  arise  from
     5  treatment or care when that treatment or care is performed in accordance
     6  with  generally  applicable legal, health and professional standards and
     7  for the purposes of evaluating, treating, protecting  or  improving  the
     8  person's health.
     9    (f)  "Interrogation" means the questioning related to law enforcement,
    10  the enforcement of rules or  regulations  of  an  institution  in  which
    11  people  are detained through the criminal justice system or for military
    12  or national security reasons (such as a jail or other detention  facili-
    13  ty, police facility, prison, immigration facility, or military facility)
    14  or  to military and national security intelligence gathering, whether by
    15  a government or non-government  actor,  entity  or  official.  "Interro-
    16  gation"  shall also include questioning to aid or accomplish any illegal
    17  activity or purpose, whether by a government  or  non-government  actor,
    18  entity or official. Interrogations are distinct from questioning used by
    19  health  care professionals to assess the physical or mental condition of
    20  an individual.
    21    2. Knowledge. It shall be an element of any violation of this  section
    22  that  the  actor  knew  or  reasonably should have known that his or her
    23  conduct is of the kind prohibited under  this  section.  A  health  care
    24  professional  who receives information that indicates that a prisoner as
    25  defined by this section is being, may in the  future  be,  or  has  been
    26  subjected  to  torture or improper treatment, must use due diligence, in
    27  order to assess the nature of his or her  conduct  as  covered  by  this
    28  section.
    29    3. General obligations of health care professionals.  (a) Every health
    30  care  professional shall provide every prisoner under his or her profes-
    31  sional care with care or treatment consistent with generally  applicable
    32  legal, health and professional standards to the extent that he or she is
    33  reasonably  able  to do so under the circumstances, including protecting
    34  the confidentiality of patient information.
    35    (b) In all clinical assessments relating to a  prisoner,  whether  for
    36  therapeutic  or  evaluative  purposes,  health  care professionals shall
    37  exercise their professional judgment independent of the interests  of  a
    38  government or other third party.
    39    4.  Certain  conduct  of health care professionals prohibited.  (a) No
    40  health care professional shall apply his or her knowledge or  skills  in
    41  relation  to,  engage  in any professional relationship with, or perform
    42  professional services in relation to any prisoner unless the purpose  is
    43  solely  to  evaluate,  treat, protect, or improve the physical or mental
    44  health or condition of the prisoner (except as  permitted  by  paragraph
    45  (b) or (c) of subdivision five of this section).
    46    (b)  No health care professional shall engage, directly or indirectly,
    47  in any act which constitutes participation in, complicity in, incitement
    48  to, assistance in, planning or design of, or attempt  or  conspiracy  to
    49  commit  torture or improper treatment of a prisoner. Prohibited forms of
    50  engagement include but are not limited to:
    51    (i) providing means, knowledge or skills, including clinical  findings
    52  or  treatment,  with the intent to facilitate the practice of torture or
    53  improper treatment;
    54    (ii) permitting his or her knowledge, skills or clinical  findings  or
    55  treatment  to  be  used  in  the  process of or to facilitate torture or
    56  improper treatment;

        S. 596                              4
 
     1    (iii) examining, evaluating, or treating a prisoner to certify whether
     2  torture or improper treatment can begin, be continued, or be resumed;
     3    (iv) being present while torture or improper treatment is being admin-
     4  istered;
     5    (v)  omitting or suppressing indications of torture or improper treat-
     6  ment from records or reports; and
     7    (vi) altering health care records or reports to hide, misrepresent  or
     8  destroy evidence of torture or improper treatment.
     9    (c)  No  health  care professional shall apply his or her knowledge or
    10  skills or perform any professional service in order  to  assist  in  the
    11  punishment,  detention,  incarceration,  intimidation,  or coercion of a
    12  prisoner when such assistance is provided in a manner that may adversely
    13  affect the physical or  mental  health  or  condition  of  the  prisoner
    14  (except as permitted by paragraph (a) or (b) of subdivision five of this
    15  section).
    16    (d) No health care professional shall participate in the interrogation
    17  of a prisoner, including being present in the interrogation room, asking
    18  or  suggesting  questions, advising on the use of specific interrogation
    19  techniques, monitoring the interrogation, or medically or psychological-
    20  ly evaluating a person for the purpose of identifying potential interro-
    21  gation methods or strategies. However, this paragraph shall  not  bar  a
    22  health care professional from engaging in conduct under paragraph (d) of
    23  subdivision five of this section.
    24    5.  Certain  conduct  of health care professionals permitted. A health
    25  care professional may engage in the following conduct so long as it does
    26  not violate subdivision three or four  of  this  section,  it  does  not
    27  adversely affect the physical or mental health or condition of a prison-
    28  er or potential subject, and is not otherwise unlawful:
    29    (a) appropriately participating or aiding in the investigation, prose-
    30  cution, or defense of a criminal, administrative or civil matter;
    31    (b)  participating  in an act that restrains a prisoner or temporarily
    32  alters the physical or mental activity of  a  prisoner,  where  the  act
    33  complies with generally applicable legal, health and professional stand-
    34  ards,  is necessary for the protection of the physical or mental health,
    35  condition or safety of the prisoner, other prisoners, or persons  caring
    36  for, guarding or confining the prisoner;
    37    (c)  conducting  bona  fide  human subject research in accordance with
    38  generally accepted legal, health and professional  standards  where  the
    39  research  includes  safeguards  for  human  subjects equivalent to those
    40  required by federal law, including informed  consent  and  institutional
    41  review board approval where applicable;
    42    (d)  training  related to the following purposes, so long as it is not
    43  provided in support of specific ongoing or anticipated interrogations:
    44    (i) recognizing and responding to  persons  with  physical  or  mental
    45  illness or conditions,
    46    (ii) the possible physical and mental effects of particular techniques
    47  and conditions of interrogation, or
    48    (iii)  the  development  of  effective  interrogation  strategies  not
    49  involving the practice of torture or improper treatment.
    50    6. Duty to report. A  health  care  professional  who  has  reasonable
    51  grounds  (not based solely on publicly available information) to believe
    52  that torture, improper treatment or other conduct in violation  of  this
    53  section  has  occurred, is occurring, or will occur shall, as soon as is
    54  possible without jeopardizing the physical safety of himself or herself,
    55  the prisoner, or other parties, report such conduct to:

        S. 596                              5
 
     1    (a) a government agency that the health care  professional  reasonably
     2  believes  has  legal  authority to punish or prevent the continuation of
     3  torture or the improper treatment of a prisoner or conduct in  violation
     4  of this section and is reasonably likely to attempt to do so; or
     5    (b)  a  governmental  or  non-governmental entity that the health care
     6  professional reasonably believes will notify such a government agency of
     7  the torture or the improper  treatment  of  a  prisoner  or  conduct  in
     8  violation  of  this section or take other action to publicize or prevent
     9  such torture, treatment or conduct; and
    10    (c) in addition to reporting under paragraph (a) or (b) of this subdi-
    11  vision: (i) in the case of an alleged violation by a health care profes-
    12  sional licensed under article one hundred thirty-one, one hundred  thir-
    13  ty-one-B  or  one  hundred  thirty-one-C  of the education law, a report
    14  shall be filed with the office of professional medical conduct; and (ii)
    15  in the case of an alleged violation by any  other  health  care  profes-
    16  sional licensed, registered or certified under title eight of the educa-
    17  tion law, a report shall be filed with the office of professional disci-
    18  pline;  provided  that for the purpose of this paragraph, where a person
    19  holds a license, registration or  certification  under  the  laws  of  a
    20  jurisdiction  other  than the state of New York that is for a profession
    21  substantially comparable to one listed in paragraph (a)  of  subdivision
    22  one  of  this  section,  the  person shall be deemed to be a health care
    23  professional and the person's  license,  registration  or  certification
    24  shall  be  deemed  to be under the appropriate article of title eight of
    25  the education law.
    26    7. Mitigation. The following may be  considered  in  full  or  partial
    27  mitigation  of  a  violation  of this section by the health care profes-
    28  sional:
    29    (a) compliance with subdivision six of this section; or
    30    (b) cooperation in good faith with an investigation of a violation  of
    31  this section.
    32    8.  Applicability.  This  section  shall apply to conduct taking place
    33  within or outside New York state, and  without  regard  to  whether  the
    34  conduct is committed by a governmental or non-governmental entity, offi-
    35  cial, or actor or under actual or asserted color of law.
    36    9. Scope of practice not expanded. This section shall not be construed
    37  to expand the lawful scope of practice of any health care professional.
    38    §  3.  Section  6509  of  the education law is amended by adding a new
    39  subdivision 15 to read as follows:
    40    (15) Any violation of section twenty-five of  the  public  health  law
    41  (relating to participation in torture or improper treatment of prisoners
    42  by health care professionals), subject to mitigation under that section.
    43    §  4.  Section  6530  of  the education law is amended by adding a new
    44  subdivision 50 to read as follows:
    45    50. Any violation of section twenty-five  of  the  public  health  law
    46  (relating to participation in torture or improper treatment of prisoners
    47  by health care professionals), subject to mitigation under that section.
    48    §  5.  Paragraphs  (b)  and (c) of subdivision 2 of section 740 of the
    49  labor law, as added by chapter 660 of the laws of 1984, are amended  and
    50  a new paragraph (d) is added to read as follows:
    51    (b)  provides  information  to,  or  testifies before, any public body
    52  conducting an investigation, hearing or inquiry into any such  violation
    53  of a law, rule or regulation by such employer; [or]
    54    (c) objects to, or refuses to participate in any such activity, policy
    55  or practice in violation of a law, rule or regulation[.]; or

        S. 596                              6
 
     1    (d)  reports  or  threatens to report any violation of section twenty-
     2  five of the public health law (relating to participation in  torture  or
     3  improper treatment of prisoners by health care professionals).
     4    §  6. Subdivision 3 of section 740 of the labor law, as added by chap-
     5  ter 660 of the laws of 1984, is amended to read as follows:
     6    3. Application. The protection against  retaliatory  personnel  action
     7  provided  by paragraph (a) of subdivision two of this section pertaining
     8  to disclosure to a public body shall not apply to an employee who  makes
     9  such  disclosure  to  a  public body unless the employee has brought the
    10  activity, policy or practice in violation of law, rule or regulation  to
    11  the  attention  of  a  supervisor  of the employer and has afforded such
    12  employer a reasonable opportunity to correct such  activity,  policy  or
    13  practice.  However,  this subdivision shall not apply to any report of a
    14  violation under section twenty-five of the public  health  law  (partic-
    15  ipation  in  torture  or  improper treatment of prisoners by health care
    16  professionals).
    17    § 7. Paragraphs (a) and (b) of subdivision 2 of  section  741  of  the
    18  labor law, as added by chapter 24 of the laws of 2002, are amended and a
    19  new paragraph (c) is added to read as follows:
    20    (a) discloses or threatens to disclose to a supervisor, or to a public
    21  body  an  activity, policy or practice of the employer or agent that the
    22  employee, in good faith, reasonably believes constitutes improper quali-
    23  ty of patient care; [or]
    24    (b) objects to, or refuses to participate in any activity,  policy  or
    25  practice  of  the  employer  or  agent that the employee, in good faith,
    26  reasonably believes constitutes improper quality of patient care[.]; or
    27    (c) reports or threatens to report any violation  of  section  twenty-
    28  five  of  the  public  health  law (participation in torture or improper
    29  treatment of prisoners by health care professionals).
    30    § 8. Subdivision 3 of section 741 of the labor law, as added by  chap-
    31  ter 24 of the laws of 2002, is amended to read as follows:
    32    3.  Application.  The  protection against retaliatory personnel action
    33  provided by subdivision two of this section shall not apply  unless  the
    34  employee  has brought the improper quality of patient care to the atten-
    35  tion of a supervisor and has afforded the employer a reasonable opportu-
    36  nity to correct such activity,  policy  or  practice.  This  subdivision
    37  shall  not  apply  to an action or failure to act described in paragraph
    38  (a) of subdivision two of this section where  the  improper  quality  of
    39  patient  care  described  therein  presents an imminent threat to public
    40  health or safety or to the health of a specific patient and the employee
    41  reasonably believes in good faith that reporting to a  supervisor  would
    42  not  result  in corrective action.   However, this subdivision shall not
    43  apply to any report of a violation  under  section  twenty-five  of  the
    44  public  health  law  (participation  in torture or improper treatment of
    45  prisoners by health care professionals).
    46    § 9. The introduction or enactment of this act shall not be  construed
    47  to mean that: (a) conduct described by this act does not already violate
    48  state  law  or  constitute professional misconduct; or (b) conduct other
    49  than that described by this act does not  violate  other  state  law  or
    50  otherwise constitute professional misconduct.
    51    §  10.  Severability. If any provision of this act, or any application
    52  of any provision of this act, is held to  be  invalid,  that  shall  not
    53  affect  the validity or effectiveness of any other provision of this act
    54  or any other application of any provision of this act.
    55    § 11.   This act shall take  effect  on  the  first  of  January  next
    56  succeeding the date on which it shall have become a law.
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