Bill Text: NY S03228 | 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 8-0)
Status: (Introduced) 2024-01-03 - REFERRED TO HEALTH [S03228 Detail]
Download: New_York-2023-S03228-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 3228--A 2023-2024 Regular Sessions IN SENATE January 30, 2023 ___________ Introduced by Sens. HOYLMAN-SIGAL, BROUK, COMRIE, KAVANAGH, KRUEGER, RIVERA, SALAZAR, SEPULVEDA -- read twice and ordered printed, and when printed to be committed to the Committee on Health -- 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 18 the aid of an incarcerated individual should not be presumed to be in 19 violation when they are fulfilling the ethical principle of beneficence. 20 In contrast, a health care professional who, for example, attends to an 21 incarcerated individual in order to allow torture or improper treatment EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07802-02-3S. 3228--A 2 1 to commence or continue is not acting beneficently. Such practices are 2 inconsistent with professional ethics and standards and are violations 3 of this legislation. The legislature is mindful that ordinarily there 4 are limits on New York state's jurisdiction relating to conduct outside 5 the state or under federal authority. However, it is proper for the 6 state to regulate health care professional licensure in relation to a 7 professional's conduct, even where the conduct occurs outside the state; 8 certain wrongful out-of-state conduct is already grounds for profes- 9 sional discipline. Therefore, it is the legislature's intent that this 10 legislation be applied to the fullest extent possible. 11 § 2. The public health law is amended by adding a new section 25 to 12 read as follows: 13 § 25. Participation in torture or improper treatment of incarcerated 14 individuals by health care professionals. 1. Definitions. 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, dental hygiene, and registered dental assist- 23 ing), one hundred thirty-six (physical therapy and physical therapist 24 assistants), one hundred thirty-seven (pharmacy), one hundred thirty- 25 nine (nursing), one hundred forty (professional midwifery practice act), 26 one hundred forty-one (podiatry), one hundred forty-three (optometry), 27 one hundred forty-four (ophthalmic dispensing), one hundred fifty-three 28 (psychology), one hundred fifty-four (social work), one hundred fifty- 29 five (massage therapy), one hundred fifty-six (occupational therapy), 30 one hundred fifty-seven (dietetics and nutrition), one hundred fifty- 31 nine (speech-language pathologists and audiologists), one hundred sixty 32 (acupuncture), one hundred sixty-three (mental health practitioners), 33 one hundred sixty-four (respiratory therapists and respiratory therapy 34 technicians), one hundred sixty-five (clinical laboratory technology 35 practice act), or one hundred sixty-six (medical physics practice), or 36 (ii) article thirty-five of this chapter (practice of radiologic tech- 37 nology). 38 (b) "Torture" means any intentional act or intentional omission by 39 which severe pain or suffering, whether physical or mental, is inflicted 40 on a person for no lawful purpose or for such purposes as obtaining from 41 the person or from a third person information or a confession, punishing 42 or disciplining or retaliating against the person for an act the person 43 or a third person has carried out (including the holding of a belief or 44 membership in any group) or is suspected of having or perceived to have 45 carried out, or intimidating or coercing the person or a third person, 46 or for any reason based on discrimination of any kind. For the purposes 47 of this section, it shall not be an element of torture that such acts be 48 committed by a government or non-government actor, entity, or official; 49 under color of law; or not under color of law. 50 (c) "Improper treatment" includes any cruel, inhuman or degrading 51 treatment or punishment as those terms are defined in and applied by 52 applicable international treaties including but not limited to the 53 Convention Against Torture, and Other Cruel, Inhumane, or Degrading 54 Treatment or Punishment, the International Covenant on Civil and Poli- 55 tical Rights, the United Nations Standard Minimum Rules for Treatment of 56 Prisoners, the Body of Principles for the Protection of All PersonsS. 3228--A 3 1 Under Any Form of Detention or Imprisonment, the Basic Principles for 2 the Treatment of Prisoners and, the United Nations Standard Minimum 3 Rules for the Administration of Juvenile Justice and their corresponding 4 interpreting bodies. Improper treatment also includes any cruel and 5 unusual punishment as defined in the United States Constitution or the 6 New York state constitution. Improper treatment also includes any 7 violation of subdivision three or four of this section, any form of 8 physical brutality, improper use of force, deprivation of food, water, 9 basic hygiene materials and access, or other basic human needs or living 10 conditions, or any violation of applicable New York state law governing 11 the proper treatment of incarcerated individuals. For the purposes of 12 this section, it shall not be an element of improper treatment that such 13 acts be committed by a government actor, entity, or official or by a 14 non-government actor, entity, or official; or that such acts be commit- 15 ted under color of law or not under color of law. The commissioner shall 16 provide guidance to health care professionals regarding acts or omis- 17 sions that constitute improper treatment under this section and post the 18 guidance on the department's website. 19 (d) "Incarcerated individual" means any person who is subject to 20 punishment, detention, incarceration, interrogation, intimidation or 21 coercion, regardless of whether such action is performed or committed by 22 a government or non-government actor, entity, or official; under color 23 of law; or not under color of law. 24 (e) To "adversely affect" a person's physical or mental health or 25 condition does not include causing adverse effects that may arise from 26 treatment or care when that treatment or care is performed in accordance 27 with generally applicable legal, health and professional standards and 28 for the purposes of evaluating, treating, protecting or improving the 29 person's health. 30 (f) "Interrogation" means the questioning related to law enforcement, 31 the enforcement of rules or regulations of an institution in which 32 people are detained through the criminal justice system or for military 33 or national security reasons (such as a jail or other detention facili- 34 ty, police facility, prison, immigration facility, or military facility) 35 or to military and national security intelligence gathering, whether by 36 a government or non-government actor, entity or official. "Interro- 37 gation" shall also include questioning to aid or accomplish any illegal 38 activity or purpose, whether by a government or non-government actor, 39 entity or official. Interrogations are distinct from questioning used by 40 health care professionals to assess the physical or mental condition of 41 an individual. 42 2. Knowledge. A health care professional who receives information 43 that indicates that an incarcerated individual as defined by this 44 section is being, may in the future be, or has been subjected to torture 45 or improper treatment, must use due diligence in fulfilling all of their 46 responsibilities under this section. 47 3. General obligations of health care professionals. (a) Every health 48 care professional shall provide every incarcerated individual under 49 their professional care with care or treatment consistent with generally 50 applicable legal, health and professional standards to the extent that 51 they are reasonably able to do so under the circumstances, including 52 protecting the confidentiality of patient information. 53 (b) In all clinical assessments relating to an incarcerated individ- 54 ual, whether for therapeutic or evaluative purposes, health care profes- 55 sionals shall exercise their professional judgment independent of the 56 interests of a government or other third party.S. 3228--A 4 1 4. Certain conduct of health care professionals prohibited. (a) No 2 health care professional shall knowingly, recklessly, or negligently 3 apply their knowledge or skills in relation to, engage in any profes- 4 sional relationship with, or perform professional services in relation 5 to any incarcerated individual unless the purpose is solely to evaluate, 6 treat, protect, or improve the physical or mental health or condition of 7 the incarcerated individual (except as permitted by paragraph (b) or (c) 8 of subdivision five of this section). 9 (b) No health care professional shall knowingly, recklessly, or negli- 10 gently engage, directly or indirectly, in any act which constitutes 11 torture or improper treatment of an incarcerated individual, which may 12 include participation in, complicity in, incitement to, assistance in, 13 planning or design of, cover up of, failure to document, or attempt or 14 conspiracy to commit such torture or improper treatment. Prohibited 15 forms of engagement include but are not limited to: 16 (i) knowingly, recklessly, or negligently providing means, knowledge 17 or skills, including clinical findings or treatment, with the intent to 18 facilitate the practice of torture or improper treatment; 19 (ii) knowingly, recklessly, or negligently permitting their knowledge, 20 skills or clinical findings or treatment to be used in the process of or 21 to facilitate torture or improper treatment; 22 (iii) knowingly, recklessly, or negligently examining, evaluating, or 23 treating an incarcerated individual to certify whether torture or 24 improper treatment can begin, be continued, or be resumed; 25 (iv) being present while torture or improper treatment is being admin- 26 istered; 27 (v) omitting or suppressing indications of torture or improper treat- 28 ment from records or reports; and 29 (vi) altering health care records or reports to hide, misrepresent or 30 destroy evidence of torture or improper treatment. 31 (c) No health care professional shall knowingly, recklessly, or negli- 32 gently apply their knowledge or skills or perform any professional 33 service in order to assist in the punishment, detention, incarceration, 34 intimidation, or coercion of an incarcerated individual when such 35 assistance is provided in a manner that may adversely affect the phys- 36 ical or mental health or condition of the incarcerated individual 37 (except as permitted by paragraph (a) or (b) of subdivision five of this 38 section). 39 (d) No health care professional shall participate in the interrogation 40 of an incarcerated individual, including being present in the interro- 41 gation room, asking or suggesting questions, advising on the use of 42 specific interrogation techniques, monitoring the interrogation, or 43 medically or psychologically evaluating a person for the purpose of 44 identifying potential interrogation methods or strategies. However, this 45 paragraph shall not bar a health care professional from being present 46 for the interrogation of a minor under paragraph (a) of subdivision five 47 of this section or engaging in conduct under paragraph (d) of subdivi- 48 sion five of this section. 49 5. Certain conduct of health care professionals permitted. A health 50 care professional may engage in the following conduct so long as it does 51 not violate subdivision three or four of this section, it does not 52 adversely affect the physical or mental health or condition of an incar- 53 cerated individual or potential subject, and is not otherwise unlawful: 54 (a) appropriately participating or aiding in the investigation, prose- 55 cution, or defense of a criminal, administrative or civil matter, 56 including presence during the interrogation of a minor at the request ofS. 3228--A 5 1 the minor or the minor's parent or guardian and for the purpose of 2 supporting the health of the minor; 3 (b) participating in an act that restrains an incarcerated individual 4 or temporarily alters the physical or mental activity of an incarcerated 5 individual, where the act complies with generally applicable legal, 6 health and professional standards, is necessary for the protection of 7 the physical or mental health, condition or safety of the incarcerated 8 individual, other incarcerated individuals, or persons caring for, 9 guarding or confining the incarcerated individual; 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 such professional, 28 the incarcerated individual, 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 individual or 32 conduct in violation of this section and is reasonably likely to attempt 33 to do 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 individual 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.S. 3228--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 individuals by health care professionals), subject to mitigation 18 under 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 individuals by health care professionals), subject to mitigation 24 under 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 individuals 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] their employer by bringing the activity, 44 policy or practice to the attention of a supervisor of the employer and 45 has afforded such employer a reasonable opportunity to correct such 46 activity, 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 55 the supervisor is already aware of the activity, policy or practice and 56 will not correct such activity, policy or practice; or (f) such activ-S. 3228--A 7 1 ity, policy, or practice constitutes a violation under section twenty- 2 five of the public health law (participation in torture or improper 3 treatment of incarcerated individuals 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 individuals 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; or to any report of a violation under section twenty-five of the 35 public health law (participation in torture or improper treatment of 36 incarcerated individuals by health care professionals). 37 § 9. The introduction or enactment of this act shall not be construed 38 to mean that: (a) conduct described by this act does not already violate 39 state law or constitute professional misconduct; or (b) conduct other 40 than that described by this act does not violate other state law or 41 otherwise constitute professional misconduct. 42 § 10. Severability. If any provision of this act, or any application 43 of any provision of this act, is held to be invalid, that shall not 44 affect the validity or effectiveness of any other provision of this act 45 or any other application of any provision of this act. 46 § 11. This act shall take effect on the first of January next 47 succeeding the date on which it shall have become a law.