Bill Text: NY A04863 | 2023-2024 | General Assembly | Amended
Bill Title: Prohibits participation in torture and improper treatment of incarcerated individuals by health care professionals; prohibits a health care professional from engaging, assisting or planning the torture or improper treatment of an incarcerated individual; requires health care professionals to report torture and improper treatment.
Spectrum: Partisan Bill (Democrat 38-0)
Status: (Introduced) 2023-06-05 - print number 4863a [A04863 Detail]
Download: New_York-2023-A04863-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4863--A 2023-2024 Regular Sessions IN ASSEMBLY February 24, 2023 ___________ Introduced by M. of A. KELLES, GLICK, PAULIN, COOK, L. ROSENTHAL, HEVE- SI, BRONSON, FAHY, DICKENS, TAYLOR, SIMON, SAYEGH, CRUZ, REYES, DARLING, GALLAGHER, SEAWRIGHT, BURDICK, JACKSON, LAVINE, GONZALEZ-RO- JAS, BICHOTTE HERMELYN, OTIS, ZINERMAN, BURGOS, MAMDANI, ARDILA, SHIM- SKY, LEVENBERG, AUBRY, GIBBS -- Multi-Sponsored by -- M. of A. CARROLL, DINOWITZ, EPSTEIN, HUNTER, LUPARDO, PEOPLES-STOKES, PRETLOW -- read once and referred to the Committee on Higher Education -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the public health law, the education law and the labor law, in relation to prohibiting participation in torture and improper treatment of incarcerated individuals by health care professionals The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Legislative policy and intent. This legislation is based 2 on, and is intended to give effect to, international treaties and stand- 3 ards; federal, state and local law; and professional standards relating 4 to torture, improper treatment of incarcerated individuals, and related 5 matters. It is guided by two basic principles: (1) health care profes- 6 sionals shall be dedicated to providing the highest standard of health 7 care, with compassion and respect for human dignity and rights; and (2) 8 torture and improper treatment of incarcerated individuals are wrong and 9 inconsistent with the practice of the health care professions. The 10 legislature finds that the conduct prohibited by this act violates the 11 ethical and legal obligations of licensed health care professionals. 12 This legislation will further protect the professionalism of New York 13 state licensed health care professionals by authorizing and obligating 14 them to refuse to participate in torture and improper treatment of 15 incarcerated individuals, which in turn will protect the life and health 16 of the people of the state and those with whom New York licensed health 17 care professionals interact. A health care professional who comes to EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07802-03-3A. 4863--A 2 1 the aid of an incarcerated individual should not be presumed to be in 2 violation when they are fulfilling the ethical principle of beneficence. 3 In contrast, a health care professional who, for example, attends to an 4 incarcerated individual in order to allow torture or improper treatment 5 to commence or continue is not acting beneficently. Such practices are 6 inconsistent with professional ethics and standards and are violations 7 of this legislation. The legislature is mindful that ordinarily there 8 are limits on New York state's jurisdiction relating to conduct outside 9 the state or under federal authority. However, it is proper for the 10 state to regulate health care professional licensure in relation to a 11 professional's conduct, even where the conduct occurs outside the state; 12 certain wrongful out-of-state conduct is already grounds for profes- 13 sional discipline. Therefore, it is the legislature's intent that this 14 legislation be applied to the fullest extent possible. 15 § 2. The public health law is amended by adding a new section 25 to 16 read as follows: 17 § 25. Participation in torture or improper treatment of incarcerated 18 individuals by health care professionals. 1. Definitions. As used in 19 this section, unless the context clearly requires otherwise, the follow- 20 ing terms have the following meanings: 21 (a) "Health care professional" means any person licensed, registered, 22 certified, or exempt to practice under (i) any of the following articles 23 of the education law: one hundred thirty-one (medicine), one hundred 24 thirty-one-B (physician assistants), one hundred thirty-one-C (special- 25 ist assistants), one hundred thirty-two (chiropractic), one hundred 26 thirty-three (dentistry, dental hygiene, and registered dental assist- 27 ing), one hundred thirty-six (physical therapy and physical therapist 28 assistants), one hundred thirty-seven (pharmacy), one hundred thirty- 29 nine (nursing), one hundred forty (professional midwifery practice act), 30 one hundred forty-one (podiatry), one hundred forty-three (optometry), 31 one hundred forty-four (ophthalmic dispensing), one hundred fifty-three 32 (psychology), one hundred fifty-four (social work), one hundred fifty- 33 five (massage therapy), one hundred fifty-six (occupational therapy), 34 one hundred fifty-seven (dietetics and nutrition), one hundred fifty- 35 nine (speech-language pathologists and audiologists), one hundred sixty 36 (acupuncture), one hundred sixty-three (mental health practitioners), 37 one hundred sixty-four (respiratory therapists and respiratory therapy 38 technicians), one hundred sixty-five (clinical laboratory technology 39 practice act), or one hundred sixty-six (medical physics practice), or 40 (ii) article thirty-five of this chapter (practice of radiologic tech- 41 nology). 42 (b) "Torture" means any intentional act or intentional omission by 43 which severe pain or suffering, whether physical or mental, is inflicted 44 on a person for no lawful purpose or for such purposes as obtaining from 45 the person or from a third person information or a confession, punishing 46 or disciplining or retaliating against the person for an act the person 47 or a third person has carried out (including the holding of a belief or 48 membership in any group) or is suspected of having or perceived to have 49 carried out, or intimidating or coercing the person or a third person, 50 or for any reason based on discrimination of any kind. For the purposes 51 of this section, it shall not be an element of torture that such acts be 52 committed by a government or non-government actor, entity, or official; 53 under color of law; or not under color of law. 54 (c) "Improper treatment" includes any cruel, inhuman or degrading 55 treatment or punishment as those terms are defined in and applied by 56 applicable international treaties including but not limited to theA. 4863--A 3 1 Convention Against Torture, and Other Cruel, Inhumane, or Degrading 2 Treatment or Punishment, the International Covenant on Civil and Poli- 3 tical Rights, the United Nations Standard Minimum Rules for Treatment of 4 Prisoners, the Body of Principles for the Protection of All Persons 5 Under Any Form of Detention or Imprisonment, the Basic Principles for 6 the Treatment of Prisoners and, the United Nations Standard Minimum 7 Rules for the Administration of Juvenile Justice and their corresponding 8 interpreting bodies. Improper treatment also includes any cruel and 9 unusual punishment as defined in the United States Constitution or the 10 New York state constitution. Improper treatment also includes any 11 violation of subdivision three or four of this section, any form of 12 physical brutality, improper use of force, deprivation of food, water, 13 basic hygiene materials and access, or other basic human needs or living 14 conditions, or any violation of applicable New York state law governing 15 the proper treatment of incarcerated individuals. For the purposes of 16 this section, it shall not be an element of improper treatment that such 17 acts be committed by a government actor, entity, or official or by a 18 non-government actor, entity, or official; or that such acts be commit- 19 ted under color of law or not under color of law. The commissioner shall 20 provide guidance to health care professionals regarding acts or omis- 21 sions that constitute improper treatment under this section and post the 22 guidance on the department's website. 23 (d) "Incarcerated individual" means any person who is subject to 24 punishment, detention, incarceration, interrogation, intimidation or 25 coercion, regardless of whether such action is performed or committed by 26 a government or non-government actor, entity, or official; under color 27 of law; or not under color of law. 28 (e) To "adversely affect" a person's physical or mental health or 29 condition does not include causing adverse effects that may arise from 30 treatment or care when that treatment or care is performed in accordance 31 with generally applicable legal, health and professional standards and 32 for the purposes of evaluating, treating, protecting or improving the 33 person's health. 34 (f) "Interrogation" means the questioning related to law enforcement, 35 the enforcement of rules or regulations of an institution in which 36 people are detained through the criminal justice system or for military 37 or national security reasons (such as a jail or other detention facili- 38 ty, police facility, prison, immigration facility, or military facility) 39 or to military and national security intelligence gathering, whether by 40 a government or non-government actor, entity or official. "Interro- 41 gation" shall also include questioning to aid or accomplish any illegal 42 activity or purpose, whether by a government or non-government actor, 43 entity or official. Interrogations are distinct from questioning used by 44 health care professionals to assess the physical or mental condition of 45 an individual. 46 2. Knowledge. A health care professional who receives information 47 that indicates that an incarcerated individual as defined by this 48 section is being, may in the future be, or has been subjected to torture 49 or improper treatment, must use due diligence in fulfilling all of their 50 responsibilities under this section. 51 3. General obligations of health care professionals. (a) Every health 52 care professional shall provide every incarcerated individual under 53 their professional care with care or treatment consistent with generally 54 applicable legal, health and professional standards to the extent that 55 they are reasonably able to do so under the circumstances, including 56 protecting the confidentiality of patient information.A. 4863--A 4 1 (b) In all clinical assessments relating to an incarcerated individ- 2 ual, whether for therapeutic or evaluative purposes, health care profes- 3 sionals shall exercise their professional judgment independent of the 4 interests of a government or other third party. 5 4. Certain conduct of health care professionals prohibited. (a) No 6 health care professional shall knowingly, recklessly, or negligently 7 apply their knowledge or skills in relation to, engage in any profes- 8 sional relationship with, or perform professional services in relation 9 to any incarcerated individual unless the purpose is solely to evaluate, 10 treat, protect, or improve the physical or mental health or condition of 11 the incarcerated individual (except as permitted by paragraph (b) or (c) 12 of subdivision five of this section). 13 (b) No health care professional shall knowingly, recklessly, or negli- 14 gently engage, directly or indirectly, in any act which constitutes 15 torture or improper treatment of an incarcerated individual, which may 16 include participation in, complicity in, incitement to, assistance in, 17 planning or design of, cover up of, failure to document, or attempt or 18 conspiracy to commit such torture or improper treatment. Prohibited 19 forms of engagement include but are not limited to: 20 (i) knowingly, recklessly, or negligently providing means, knowledge 21 or skills, including clinical findings or treatment, with the intent to 22 facilitate the practice of torture or improper treatment; 23 (ii) knowingly, recklessly, or negligently permitting their knowledge, 24 skills or clinical findings or treatment to be used in the process of or 25 to facilitate torture or improper treatment; 26 (iii) knowingly, recklessly, or negligently examining, evaluating, or 27 treating an incarcerated individual to certify whether torture or 28 improper treatment can begin, be continued, or be resumed; 29 (iv) being present while torture or improper treatment is being admin- 30 istered; 31 (v) omitting or suppressing indications of torture or improper treat- 32 ment from records or reports; and 33 (vi) altering health care records or reports to hide, misrepresent or 34 destroy evidence of torture or improper treatment. 35 (c) No health care professional shall knowingly, recklessly, or negli- 36 gently apply their knowledge or skills or perform any professional 37 service in order to assist in the punishment, detention, incarceration, 38 intimidation, or coercion of an incarcerated individual when such 39 assistance is provided in a manner that may adversely affect the phys- 40 ical or mental health or condition of the incarcerated individual 41 (except as permitted by paragraph (a) or (b) of subdivision five of this 42 section). 43 (d) No health care professional shall participate in the interrogation 44 of an incarcerated individual, including being present in the interro- 45 gation room, asking or suggesting questions, advising on the use of 46 specific interrogation techniques, monitoring the interrogation, or 47 medically or psychologically evaluating a person for the purpose of 48 identifying potential interrogation methods or strategies. However, this 49 paragraph shall not bar a health care professional from being present 50 for the interrogation of a minor under paragraph (a) of subdivision five 51 of this section or engaging in conduct under paragraph (d) of subdivi- 52 sion five of this section. 53 5. Certain conduct of health care professionals permitted. A health 54 care professional may engage in the following conduct so long as it does 55 not violate subdivision three or four of this section, it does notA. 4863--A 5 1 adversely affect the physical or mental health or condition of an incar- 2 cerated individual or potential subject, and is not otherwise unlawful: 3 (a) appropriately participating or aiding in the investigation, prose- 4 cution, or defense of a criminal, administrative or civil matter, 5 including presence during the interrogation of a minor at the request of 6 the minor or the minor's parent or guardian and for the purpose of 7 supporting the health of the minor; 8 (b) participating in an act that restrains an incarcerated individual 9 or temporarily alters the physical or mental activity of an incarcerated 10 individual, where the act complies with generally applicable legal, 11 health and professional standards, is necessary for the protection of 12 the physical or mental health, condition or safety of the incarcerated 13 individual, other incarcerated individuals, or persons caring for, 14 guarding or confining the incarcerated individual; 15 (c) conducting bona fide human subject research in accordance with 16 generally accepted legal, health and professional standards where the 17 research includes safeguards for human subjects equivalent to those 18 required by federal law, including informed consent and institutional 19 review board approval where applicable; 20 (d) training related to the following purposes, so long as it is not 21 provided in support of specific ongoing or anticipated interrogations: 22 (i) recognizing and responding to persons with physical or mental 23 illness or conditions, 24 (ii) the possible physical and mental effects of particular techniques 25 and conditions of interrogation, or 26 (iii) the development of effective interrogation strategies not 27 involving the practice of torture or improper treatment. 28 6. Duty to report. A health care professional who has reasonable 29 grounds (not based solely on publicly available information) to believe 30 that torture, improper treatment or other conduct in violation of this 31 section has occurred, is occurring, or will occur shall, as soon as is 32 possible without jeopardizing the physical safety of such professional, 33 the incarcerated individual, or other parties, report such conduct to: 34 (a) a government agency that the health care professional reasonably 35 believes has legal authority to punish or prevent the continuation of 36 torture or the improper treatment of an incarcerated individual or 37 conduct in violation of this section and is reasonably likely to attempt 38 to do so; or 39 (b) a governmental or non-governmental entity that the health care 40 professional reasonably believes will notify such a government agency of 41 the torture or the improper treatment of an incarcerated individual or 42 conduct in violation of this section or take other action to publicize 43 or prevent such torture, treatment or conduct; and 44 (c) in addition to reporting under paragraph (a) or (b) of this subdi- 45 vision: (i) in the case of an alleged violation by a health care profes- 46 sional licensed under article one hundred thirty-one, one hundred thir- 47 ty-one-B or one hundred thirty-one-C of the education law, a report 48 shall be filed with the office of professional medical conduct; and (ii) 49 in the case of an alleged violation by any other health care profes- 50 sional licensed, registered or certified under title eight of the educa- 51 tion law, a report shall be filed with the office of professional disci- 52 pline; provided that for the purpose of this paragraph, where a person 53 holds a license, registration or certification under the laws of a 54 jurisdiction other than the state of New York that is for a profession 55 substantially comparable to one listed in paragraph (a) of subdivision 56 one of this section, the person shall be deemed to be a health careA. 4863--A 6 1 professional and the person's license, registration or certification 2 shall be deemed to be under the appropriate article of title eight of 3 the education law. 4 7. Mitigation. The following may be considered in full or partial 5 mitigation of a violation of this section by the health care profes- 6 sional: 7 (a) compliance with subdivision six of this section; or 8 (b) cooperation in good faith with an investigation of a violation of 9 this section. 10 8. Applicability. This section shall apply to conduct taking place 11 within or outside New York state, and without regard to whether the 12 conduct is committed by a governmental or non-governmental entity, offi- 13 cial, or actor or under actual or asserted color of law. 14 9. Scope of practice not expanded. This section shall not be construed 15 to expand the lawful scope of practice of any health care professional. 16 § 3. Section 6509 of the education law is amended by adding a new 17 subdivision 15 to read as follows: 18 (15) Any violation of section twenty-five of the public health law 19 (relating to participation in torture or improper treatment of incarcer- 20 ated individuals by health care professionals), subject to mitigation 21 under that section. 22 § 4. Section 6530 of the education law is amended by adding a new 23 subdivision 51 to read as follows: 24 51. Any violation of section twenty-five of the public health law 25 (relating to participation in torture or improper treatment of incarcer- 26 ated individuals by health care professionals), subject to mitigation 27 under that section. 28 § 5. Paragraphs (b) and (c) of subdivision 2 of section 740 of the 29 labor law, as amended by chapter 522 of the laws of 2021, are amended 30 and a new paragraph (d) is added to read as follows: 31 (b) provides information to, or testifies before, any public body 32 conducting an investigation, hearing or inquiry into any such activity, 33 policy or practice by such employer; [or] 34 (c) objects to, or refuses to participate in any such activity, policy 35 or practice[.]; or 36 (d) reports or threatens to report any violation of section twenty- 37 five of the public health law (relating to participation in torture or 38 improper treatment of incarcerated individuals by health care profes- 39 sionals). 40 § 6. Subdivision 3 of section 740 of the labor law, as amended by 41 chapter 522 of the laws of 2021, is amended to read as follows: 42 3. Application. The protection against retaliatory action provided by 43 paragraph (a) of subdivision two of this section pertaining to disclo- 44 sure to a public body shall not apply to an employee who makes such 45 disclosure to a public body unless the employee has made a good faith 46 effort to notify [his or her] their employer by bringing the activity, 47 policy or practice to the attention of a supervisor of the employer and 48 has afforded such employer a reasonable opportunity to correct such 49 activity, policy or practice. Such employer notification shall not be 50 required where: (a) there is an imminent and serious danger to the 51 public health or safety; (b) the employee reasonably believes that 52 reporting to the supervisor would result in a destruction of evidence or 53 other concealment of the activity, policy or practice; (c) such activ- 54 ity, policy or practice could reasonably be expected to lead to endan- 55 gering the welfare of a minor; (d) the employee reasonably believes that 56 reporting to the supervisor would result in physical harm to the employ-A. 4863--A 7 1 ee or any other person; [or] (e) the employee reasonably believes that 2 the supervisor is already aware of the activity, policy or practice and 3 will not correct such activity, policy or practice; or (f) such activ- 4 ity, policy, or practice constitutes a violation under section twenty- 5 five of the public health law (participation in torture or improper 6 treatment of incarcerated individuals by health care professionals). 7 § 7. Paragraphs (a) and (b) of subdivision 2 of section 741 of the 8 labor law, as amended by chapter 117 of the laws of 2020, are amended 9 and a new paragraph (c) is added to read as follows: 10 (a) discloses or threatens to disclose to a supervisor, to a public 11 body, to a news media outlet, or to a social media forum available to 12 the public at large, an activity, policy or practice of the employer or 13 agent that the employee, in good faith, reasonably believes constitutes 14 improper quality of patient care or improper quality of workplace safe- 15 ty; [or] 16 (b) objects to, or refuses to participate in any activity, policy or 17 practice of the employer or agent that the employee, in good faith, 18 reasonably believes constitutes improper quality of patient care or 19 improper quality of workplace safety[.]; or 20 (c) reports or threatens to report any violation of section twenty- 21 five of the public health law (participation in torture or improper 22 treatment of incarcerated individuals by health care professionals). 23 § 8. Subdivision 3 of section 741 of the labor law, as amended by 24 chapter 117 of the laws of 2020, is amended to read as follows: 25 3. Application. The protection against retaliatory personnel action 26 provided by subdivision two of this section shall not apply unless the 27 employee has brought the improper quality of patient care or improper 28 quality of workplace safety to the attention of a supervisor and has 29 afforded the employer a reasonable opportunity to correct such activity, 30 policy or practice. This subdivision shall not apply to an action or 31 failure to act described in paragraph (a) of subdivision two of this 32 section where the improper quality of patient care or improper quality 33 of workplace safety described therein presents an imminent threat to 34 public health or safety or to the health of a specific patient or 35 specific health care employee and the employee reasonably believes in 36 good faith that reporting to a supervisor would not result in corrective 37 action; or to any report of a violation under section twenty-five of the 38 public health law (participation in torture or improper treatment of 39 incarcerated individuals by health care professionals). 40 § 9. The introduction or enactment of this act shall not be construed 41 to mean that: (a) conduct described by this act does not already violate 42 state law or constitute professional misconduct; or (b) conduct other 43 than that described by this act does not violate other state law or 44 otherwise constitute professional misconduct. 45 § 10. Severability. If any provision of this act, or any application 46 of any provision of this act, is held to be invalid, that shall not 47 affect the validity or effectiveness of any other provision of this act 48 or any other application of any provision of this act. 49 § 11. This act shall take effect on the first of January next 50 succeeding the date on which it shall have become a law.
