STATE OF NEW YORK
        ________________________________________________________________________

                                           306

                               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, BARRON, SAYEGH, CRUZ, REYES, ABINANTI,
          DARLING, FERNANDEZ -- Multi-Sponsored by -- M. of A.  CARROLL,  DINOW-
          ITZ,  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.
                                                                   LBD00111-01-1

        A. 306                              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, dental hygiene, and registered  dental  assist-
    30  ing),  one  hundred  thirty-six (physical therapy and physical therapist
    31  assistants), one hundred thirty-seven (pharmacy),  one  hundred  thirty-
    32  nine (nursing), one hundred forty (professional midwifery practice act),
    33  one  hundred  forty-one (podiatry), one hundred forty-three (optometry),
    34  one hundred forty-four (ophthalmic dispensing), one hundred  fifty-three
    35  (psychology),  one  hundred fifty-four (social work), one hundred fifty-
    36  five (massage therapy), one hundred  fifty-six  (occupational  therapy),
    37  one  hundred  fifty-seven  (dietetics and nutrition), one hundred fifty-
    38  nine (speech-language pathologists and audiologists), one hundred  sixty
    39  (acupuncture),  one  hundred  sixty-three (mental health practitioners),
    40  one hundred sixty-four (respiratory therapists and  respiratory  therapy
    41  technicians),  one  hundred  sixty-five  (clinical laboratory technology
    42  practice act), or one hundred sixty-six (medical physics  practice),  or
    43  (ii)  article  thirty-five of this chapter (practice of radiologic tech-
    44  nology).
    45    (b) "Torture" means any intentional act  or  intentional  omission  by
    46  which severe pain or suffering, whether physical or mental, is inflicted
    47  on  a  person  for  such purposes as obtaining from the person or from a
    48  third person information or a confession, punishing the  person  for  an
    49  act the person or a third person has committed (including the holding of
    50  a  belief  or membership in any group) or is suspected of having commit-
    51  ted, or intimidating or coercing the person or a third  person,  or  for
    52  any  reason  based  on  discrimination of any kind.  It does not include
    53  pain or suffering arising only from, inherent in or incidental to lawful
    54  sanction.
    55    (c) "Improper treatment" means (i) cruel, inhuman or degrading, treat-
    56  ment or punishment as defined by applicable international  treaties  and

        A. 306                              3

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

        A. 306                              4

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

        A. 306                              5

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

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     1    § 5. Paragraphs (b) and (c) of subdivision 2 of  section  740  of  the
     2  labor  law, as added by chapter 660 of the laws of 1984, are amended and
     3  a new paragraph (d) is added to read as follows:
     4    (b)  provides  information  to,  or  testifies before, any public body
     5  conducting an investigation, hearing or inquiry into any such  violation
     6  of a law, rule or regulation by such employer; [or]
     7    (c) objects to, or refuses to participate in any such activity, policy
     8  or practice in violation of a law, rule or regulation[.]; or
     9    (d)  reports  or  threatens to report any violation of section twenty-
    10  five of the public health law (relating to participation in  torture  or
    11  improper treatment of prisoners by health care professionals).
    12    §  6. Subdivision 3 of section 740 of the labor law, as added by chap-
    13  ter 660 of the laws of 1984, is amended to read as follows:
    14    3. Application. The protection against  retaliatory  personnel  action
    15  provided  by paragraph (a) of subdivision two of this section pertaining
    16  to disclosure to a public body shall not apply to an employee who  makes
    17  such  disclosure  to  a  public body unless the employee has brought the
    18  activity, policy or practice in violation of law, rule or regulation  to
    19  the  attention  of  a  supervisor  of the employer and has afforded such
    20  employer a reasonable opportunity to correct such  activity,  policy  or
    21  practice.  However,  this subdivision shall not apply to any report of a
    22  violation under section twenty-five of the public  health  law  (partic-
    23  ipation  in  torture  or  improper treatment of prisoners by health care
    24  professionals).
    25    § 7. Paragraphs (a) and (b) of subdivision 2 of  section  741  of  the
    26  labor law, amended by chapter 117 of the laws of 2020, are amended and a
    27  new paragraph (c) is added to read as follows:
    28    (a)  discloses  or  threatens to disclose to a supervisor, to a public
    29  body, to a news media outlet, or to a social media  forum  available  to
    30  the  public at large, an activity, policy or practice of the employer or
    31  agent that the employee, in good faith, reasonably believes  constitutes
    32  improper  quality of patient care or improper quality of workplace safe-
    33  ty; [or]
    34    (b) objects to, or refuses to participate in any activity,  policy  or
    35  practice  of  the  employer  or  agent that the employee, in good faith,
    36  reasonably believes constitutes improper  quality  of  patient  care  or
    37  improper quality of workplace safety[.]; or
    38    (c)  reports  or  threatens to report any violation of section twenty-
    39  five of the public health law  (participation  in  torture  or  improper
    40  treatment of prisoners by health care professionals).
    41    §  8.  Subdivision  3  of  section 741 of the labor law, as amended by
    42  chapter 117 of the laws of 2020, is amended to read as follows:
    43    3. Application. The protection against  retaliatory  personnel  action
    44  provided  by  subdivision two of this section shall not apply unless the
    45  employee has brought the improper quality of patient  care  or  improper
    46  quality  of  workplace  safety  to the attention of a supervisor and has
    47  afforded the employer a reasonable opportunity to correct such activity,
    48  policy or practice. This subdivision shall not apply  to  an  action  or
    49  failure  to  act  described  in paragraph (a) of subdivision two of this
    50  section where the improper quality of patient care or  improper  quality
    51  of  workplace  safety  described  therein presents an imminent threat to
    52  public health or safety or to  the  health  of  a  specific  patient  or
    53  specific  health  care  employee and the employee reasonably believes in
    54  good faith that reporting to a supervisor would not result in corrective
    55  action.  However, this subdivision shall not apply to any  report  of  a
    56  violation  under  section  twenty-five of the public health law (partic-

        A. 306                              7

     1  ipation in torture or improper treatment of  prisoners  by  health  care
     2  professionals).
     3    §  9. The introduction or enactment of this act shall not be construed
     4  to mean that: (a) conduct described by this act does not already violate
     5  state law or constitute professional misconduct; or  (b)  conduct  other
     6  than  that  described  by  this  act does not violate other state law or
     7  otherwise constitute professional misconduct.
     8    § 10.  Severability. If any provision of this act, or any  application
     9  of  any  provision  of  this  act, is held to be invalid, that shall not
    10  affect the validity or effectiveness of any other provision of this  act
    11  or any other application of any provision of this act.
    12    §  11.    This  act  shall  take  effect  on the first of January next
    13  succeeding the date on which it shall have become a law.