Bill Text: NY A00306 | 2021-2022 | General Assembly | Amended
Bill Title: Prohibits participation in torture and improper treatment of incarcerated persons by health care professionals; prohibits a health care professional from engaging, assisting or planning the torture or improper treatment of an incarcerated person; requires health care professionals to report torture and improper treatment.
Spectrum: Partisan Bill (Democrat 45-0)
Status: (Introduced - Dead) 2022-01-20 - amended on third reading (t) 306a [A00306 Detail]
Download: New_York-2021-A00306-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 306--A Cal. No. 22 2021-2022 Regular Sessions IN ASSEMBLY (Prefiled) January 6, 2021 ___________ Introduced by M. of A. GOTTFRIED, CAHILL, J. RIVERA, GLICK, PAULIN, COOK, PERRY, ENGLEBRIGHT, O'DONNELL, L. ROSENTHAL, HEVESI, BRONSON, FAHY, DICKENS, TAYLOR, SIMON, SAYEGH, CRUZ, REYES, ABINANTI, DARLING, FERNANDEZ, GALLAGHER, GRIFFIN, SEAWRIGHT, BURDICK, KELLES, JACKSON, LAVINE, GONZALEZ-ROJAS, BICHOTTE HERMELYN, OTIS -- 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 -- ordered to a third reading, amended and ordered reprinted, retaining its place on the order of third reading 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 persons 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 persons, 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 persons 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 persons, which in turn will protect the life and health of 16 the people of the state and those with whom New York licensed health EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00111-04-2A. 306--A 2 1 care professionals interact. A health care professional who comes to 2 the aid of an incarcerated person should not be presumed to be in 3 violation when she or he is fulfilling the ethical principle of benefi- 4 cence. In contrast, a health care professional who, for example, attends 5 to an incarcerated person in order to allow torture or improper treat- 6 ment to commence or continue is not acting beneficently. Such practices 7 are inconsistent with professional ethics and standards and are 8 violations of this legislation. The legislature is mindful that ordi- 9 narily there are limits on New York state's jurisdiction relating to 10 conduct outside the state or under federal authority. However, it is 11 proper for the state to regulate health care professional licensure in 12 relation to a professional's conduct, even where the conduct occurs 13 outside the state; certain wrongful out-of-state conduct is already 14 grounds for professional discipline. Therefore, it is the legislature's 15 intent that this legislation be applied to the fullest extent possible. 16 § 2. The public health law is amended by adding a new section 25 to 17 read as follows: 18 § 25. Participation in torture or improper treatment of incarcerated 19 persons by health care professionals. 1. Definitions. As used in this 20 section, the terms "torture" and "improper treatment" shall be inter- 21 preted in accordance with applicable law, including international trea- 22 ties to which the United States is a party. However, for the purposes 23 of this section, it shall not be an element of either "torture" or 24 "improper treatment" that such acts be committed by a government or 25 non-government actor, entity, or official; under color of law; or not 26 under color of law. As used in this section, unless the context clearly 27 requires otherwise, the following terms have the following meanings: 28 (a) "Health care professional" means any person licensed, registered, 29 certified, or exempt to practice under (i) any of the following articles 30 of the education law: one hundred thirty-one (medicine), one hundred 31 thirty-one-B (physician assistants), one hundred thirty-one-C (special- 32 ist assistants), one hundred thirty-two (chiropractic), one hundred 33 thirty-three (dentistry, dental hygiene, and registered dental assist- 34 ing), one hundred thirty-six (physical therapy and physical therapist 35 assistants), one hundred thirty-seven (pharmacy), one hundred thirty- 36 nine (nursing), one hundred forty (professional midwifery practice act), 37 one hundred forty-one (podiatry), one hundred forty-three (optometry), 38 one hundred forty-four (ophthalmic dispensing), one hundred fifty-three 39 (psychology), one hundred fifty-four (social work), one hundred fifty- 40 five (massage therapy), one hundred fifty-six (occupational therapy), 41 one hundred fifty-seven (dietetics and nutrition), one hundred fifty- 42 nine (speech-language pathologists and audiologists), one hundred sixty 43 (acupuncture), one hundred sixty-three (mental health practitioners), 44 one hundred sixty-four (respiratory therapists and respiratory therapy 45 technicians), one hundred sixty-five (clinical laboratory technology 46 practice act), or one hundred sixty-six (medical physics practice), or 47 (ii) article thirty-five of this chapter (practice of radiologic tech- 48 nology). 49 (b) "Torture" means any intentional act or intentional omission by 50 which severe pain or suffering, whether physical or mental, is inflicted 51 on a person for no lawful purpose or for such purposes as obtaining from 52 the person or from a third person information or a confession, punishing 53 or disciplining or retaliating against the person for an act the person 54 or a third person has carried out (including the holding of a belief or 55 membership in any group) or is suspected of having or perceived to haveA. 306--A 3 1 carried out, or intimidating or coercing the person or a third person, 2 or for any reason based on discrimination of any kind. 3 (c) "Improper treatment" means (i) cruel, inhuman or degrading, treat- 4 ment or punishment as defined by applicable international treaties 5 including but not limited to the Convention Against Torture, and Other 6 Cruel, Inhumane, or Degrading Treatment or Punishment, the International 7 Covenant on Civil and Political Rights, the United Nations Standard 8 Minimum Rules for Treatment of Prisoners, the Body of Principles for the 9 Protection of All Persons Under Any Form of Detention or Imprisonment, 10 the Basic Principles for the Treatment of Prisoners and, the United 11 Nations Standard Minimum Rules for the Administration of Juvenile 12 Justice and their corresponding interpreting bodies; and applicable New 13 York state law governing the proper treatment of incarcerated persons 14 including, but not limited to, subdivisions twenty-three, thirty-three 15 and thirty-four of section two, sections forty-five and one hundred 16 thirty-seven, subdivision seven of section one hundred thirty-eight, and 17 sections four hundred one, four hundred one-a and five hundred-k of the 18 correction law, or applicable state or local law; or cruel and unusual 19 punishment as defined in the United States Constitution or the New York 20 state constitution; or (ii) any violation of subdivision three or four 21 of this section; or (iii) any form of physical brutality, improper use 22 of force, or deprivation of food, water, basic hygiene materials and 23 access, or other basic human needs or living conditions. 24 (d) "Incarcerated person" means any person who is subject to punish- 25 ment, detention, incarceration, interrogation, intimidation or coercion, 26 regardless of whether such action is performed or committed by a govern- 27 ment or non-government actor, entity, or official; under color of law; 28 or not under color of law. 29 (e) To "adversely affect" a person's physical or mental health or 30 condition does not include causing adverse effects that may arise from 31 treatment or care when that treatment or care is performed in accordance 32 with generally applicable legal, health and professional standards and 33 for the purposes of evaluating, treating, protecting or improving the 34 person's health. 35 (f) "Interrogation" means the questioning related to law enforcement, 36 the enforcement of rules or regulations of an institution in which 37 people are detained through the criminal justice system or for military 38 or national security reasons (such as a jail or other detention facili- 39 ty, police facility, prison, immigration facility, or military facility) 40 or to military and national security intelligence gathering, whether by 41 a government or non-government actor, entity or official. "Interro- 42 gation" shall also include questioning to aid or accomplish any illegal 43 activity or purpose, whether by a government or non-government actor, 44 entity or official. Interrogations are distinct from questioning used by 45 health care professionals to assess the physical or mental condition of 46 an individual. 47 2. Knowledge. It shall be an element of any violation of this section 48 that the actor knew or reasonably should have known that his or her 49 conduct is of the kind prohibited under this section. A health care 50 professional who receives information that indicates that an incarcerat- 51 ed person as defined by this section is being, may in the future be, or 52 has been subjected to torture or improper treatment, must use due dili- 53 gence, in order to assess the nature of his or her conduct as covered by 54 this section. 55 3. General obligations of health care professionals. (a) Every health 56 care professional shall provide every incarcerated person under his orA. 306--A 4 1 her professional care with care or treatment consistent with generally 2 applicable legal, health and professional standards to the extent that 3 he or she is reasonably able to do so under the circumstances, including 4 protecting the confidentiality of patient information. 5 (b) In all clinical assessments relating to an incarcerated person, 6 whether for therapeutic or evaluative purposes, health care profes- 7 sionals shall exercise their professional judgment independent of the 8 interests of a government or other third party. 9 4. Certain conduct of health care professionals prohibited. (a) No 10 health care professional shall apply his or her knowledge or skills in 11 relation to, engage in any professional relationship with, or perform 12 professional services in relation to any incarcerated person unless the 13 purpose is solely to evaluate, treat, protect, or improve the physical 14 or mental health or condition of the incarcerated person (except as 15 permitted by paragraph (b) or (c) of subdivision five of this section). 16 (b) No health care professional shall engage, directly or indirectly, 17 in any act which constitutes participation in, complicity in, incitement 18 to, assistance in, planning or design of, cover up of, failure to docu- 19 ment, or attempt or conspiracy to commit torture or improper treatment 20 of an incarcerated person. Prohibited forms of engagement include but 21 are not limited to: 22 (i) providing means, knowledge or skills, including clinical findings 23 or treatment, with the intent to facilitate the practice of torture or 24 improper treatment; 25 (ii) permitting his or her knowledge, skills or clinical findings or 26 treatment to be used in the process of or to facilitate torture or 27 improper treatment; 28 (iii) examining, evaluating, or treating an incarcerated person to 29 certify whether torture or improper treatment can begin, be continued, 30 or be resumed; 31 (iv) being present while torture or improper treatment is being admin- 32 istered; 33 (v) omitting or suppressing indications of torture or improper treat- 34 ment from records or reports; and 35 (vi) altering health care records or reports to hide, misrepresent or 36 destroy evidence of torture or improper treatment. 37 (c) No health care professional shall apply his or her knowledge or 38 skills or perform any professional service in order to assist in the 39 punishment, detention, incarceration, intimidation, or coercion of an 40 incarcerated person when such assistance is provided in a manner that 41 may adversely affect the physical or mental health or condition of the 42 incarcerated person (except as permitted by paragraph (a) or (b) of 43 subdivision five of this section). 44 (d) No health care professional shall participate in the interrogation 45 of an incarcerated person, including being present in the interrogation 46 room, asking or suggesting questions, advising on the use of specific 47 interrogation techniques, monitoring the interrogation, or medically or 48 psychologically evaluating a person for the purpose of identifying 49 potential interrogation methods or strategies. However, this paragraph 50 shall not bar a health care professional from engaging in conduct under 51 paragraph (d) of subdivision five of this section. 52 5. Certain conduct of health care professionals permitted. A health 53 care professional may engage in the following conduct so long as it does 54 not violate subdivision three or four of this section, it does not 55 adversely affect the physical or mental health or condition of an incar- 56 cerated person or potential subject, and is not otherwise unlawful:A. 306--A 5 1 (a) appropriately participating or aiding in the investigation, prose- 2 cution, or defense of a criminal, administrative or civil matter; 3 (b) participating in an act that restrains an incarcerated person or 4 temporarily alters the physical or mental activity of an incarcerated 5 person, where the act complies with generally applicable legal, health 6 and professional standards, is necessary for the protection of the phys- 7 ical or mental health, condition or safety of the incarcerated person, 8 other incarcerated persons, or persons caring for, guarding or confining 9 the incarcerated person; 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 himself or herself, 28 the incarcerated person, 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 person or conduct 32 in violation of this section and is reasonably likely to attempt to do 33 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 person 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.A. 306--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 persons by health care professionals), subject to mitigation under 18 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 persons by health care professionals), subject to mitigation under 24 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 persons 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 employer by bringing the activity, policy or 44 practice to the attention of a supervisor of the employer and has 45 afforded such employer a reasonable opportunity to correct such activ- 46 ity, 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 the 55 supervisor is already aware of the activity, policy or practice and will 56 not correct such activity, policy or practice. However, this subdivi-A. 306--A 7 1 sion shall not apply to any report of a violation under section twenty- 2 five of the public health law (participation in torture or improper 3 treatment of incarcerated persons 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 persons 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. However, this subdivision shall not apply to any report of a 35 violation under section twenty-five of the public health law (partic- 36 ipation in torture or improper treatment of incarcerated persons by 37 health care professionals). 38 § 9. The introduction or enactment of this act shall not be construed 39 to mean that: (a) conduct described by this act does not already violate 40 state law or constitute professional misconduct; or (b) conduct other 41 than that described by this act does not violate other state law or 42 otherwise constitute professional misconduct. 43 § 10. Severability. If any provision of this act, or any application 44 of any provision of this act, is held to be invalid, that shall not 45 affect the validity or effectiveness of any other provision of this act 46 or any other application of any provision of this act. 47 § 11. This act shall take effect on the first of January next 48 succeeding the date on which it shall have become a law; provided, 49 however, that if chapter 522 of the laws of 2021 shall not have taken 50 effect on or before such date, then sections five and six of this act 51 shall take effect on the same date and in the same manner as such chap- 52 ter of the laws of 2021 takes effect.
