S T A T E O F N E W Y O R K
________________________________________________________________________
5891--A
2011-2012 Regular Sessions
I N A S S E M B L Y
March 2, 2011
___________
Introduced by M. of A. GOTTFRIED, CAHILL, J. RIVERA, SCHIMEL, GLICK,
CLARK, MILLMAN, ROBINSON, JEFFRIES, PAULIN, HOOPER, KELLNER, JAFFEE,
REILLY, BARRON, LIFTON, COOK, LANCMAN, PERRY, ENGLEBRIGHT, O'DONNELL,
ARROYO, MARKEY, TITONE, P. RIVERA, J. MILLER, ROSENTHAL, KAVANAGH,
STEVENSON, HEVESI -- Multi-Sponsored by -- M. of A. BOYLE, BRENNAN,
BRONSON, DINOWITZ, FARRELL, GALEF, GIBSON, HEASTIE, LUPARDO, McENENY,
MENG, NOLAN, PEOPLES-STOKES, PRETLOW, SCARBOROUGH, SWEENEY, WEISEN-
BERG, WRIGHT, ZEBROWSKI -- read once and referred to the Committee on
Higher Education -- recommitted to the Committee on Higher Education
in accordance with Assembly Rule 3, sec. 2 -- 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 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05380-04-2
A. 5891--A 2
1 turn will protect the life and health of the people of the state and
2 those with whom New York licensed health care professionals interact. A
3 health care professional who comes to the aid of a prisoner should not
4 be presumed to be in violation when she or he is fulfilling the ethical
5 principle of beneficence. In contrast, a health care professional who,
6 for example, attends to a prisoner in order to allow torture or improper
7 treatment to commence or continue is not acting beneficently. Such
8 practices are inconsistent with professional ethics and standards and
9 are violations of this legislation. The legislature is mindful that
10 ordinarily there are limits on New York state's jurisdiction relating to
11 conduct outside the state or under federal authority. However, it is
12 proper for the state to regulate health care professional licensure in
13 relation to a professional's conduct, even where the conduct occurs
14 outside the state; certain wrongful out-of-state conduct is already
15 grounds for professional discipline. Therefore, it is the legislature's
16 intent that this legislation be applied to the fullest extent possible.
17 S 2. The public health law is amended by adding a new section 23 to
18 read as follows:
19 S 23. PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS BY
20 HEALTH CARE PROFESSIONALS. 1. DEFINITIONS. AS USED IN THIS SECTION, THE
21 TERMS "TORTURE" AND "IMPROPER TREATMENT" SHALL BE INTERPRETED IN ACCORD-
22 ANCE WITH APPLICABLE LAW, INCLUDING INTERNATIONAL TREATIES TO WHICH THE
23 UNITED STATES IS A PARTY. HOWEVER, FOR THE PURPOSES OF THIS SECTION, IT
24 SHALL NOT BE AN ELEMENT OF EITHER "TORTURE" OR "IMPROPER TREATMENT" THAT
25 SUCH ACTS BE COMMITTED BY A GOVERNMENT OR NON-GOVERNMENT ACTOR, ENTITY,
26 OR OFFICIAL; UNDER COLOR OF LAW; OR NOT UNDER COLOR OF LAW. AS USED IN
27 THIS SECTION, UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE, THE FOLLOW-
28 ING TERMS HAVE THE FOLLOWING MEANINGS:
29 (A) "HEALTH CARE PROFESSIONAL" MEANS ANY PERSON LICENSED, REGISTERED,
30 CERTIFIED, OR EXEMPT TO PRACTICE UNDER (I) ANY OF THE FOLLOWING ARTICLES
31 OF THE EDUCATION LAW: ONE HUNDRED THIRTY-ONE (MEDICINE), ONE HUNDRED
32 THIRTY-ONE-B (PHYSICIAN ASSISTANTS AND SPECIALIST ASSISTANTS), ONE
33 HUNDRED THIRTY-TWO (CHIROPRACTIC), ONE HUNDRED THIRTY-THREE (DENTISTRY
34 AND DENTAL HYGIENE), ONE HUNDRED THIRTY-SIX (PHYSICAL THERAPY AND PHYS-
35 ICAL THERAPIST ASSISTANTS), ONE HUNDRED THIRTY-SEVEN (PHARMACY), ONE
36 HUNDRED THIRTY-NINE (NURSING), ONE HUNDRED FORTY (PROFESSIONAL MIDWIFERY
37 PRACTICE ACT), ONE HUNDRED FORTY-ONE (PODIATRY), ONE HUNDRED FORTY-THREE
38 (OPTOMETRY), ONE HUNDRED FORTY-FOUR (OPHTHALMIC DISPENSING), ONE HUNDRED
39 FIFTY-THREE (PSYCHOLOGY), ONE HUNDRED FIFTY-FOUR (SOCIAL WORK), ONE
40 HUNDRED FIFTY-FIVE (MASSAGE THERAPY), ONE HUNDRED FIFTY-SIX (OCCUPA-
41 TIONAL THERAPY), ONE HUNDRED FIFTY-SEVEN (DIETETICS AND NUTRITION), ONE
42 HUNDRED FIFTY-NINE (SPEECH-LANGUAGE PATHOLOGISTS AND AUDIOLOGISTS), ONE
43 HUNDRED SIXTY (ACUPUNCTURE), ONE HUNDRED SIXTY-THREE (MENTAL HEALTH
44 PRACTITIONERS), ONE HUNDRED SIXTY-FOUR (RESPIRATORY THERAPISTS AND
45 RESPIRATORY THERAPY TECHNICIANS), ONE HUNDRED SIXTY-FIVE (CLINICAL LABO-
46 RATORY TECHNOLOGY PRACTICE ACT), OR ONE HUNDRED SIXTY-SIX (MEDICAL PHYS-
47 ICS PRACTICE), OR (II) ARTICLE THIRTY-FIVE OF THIS CHAPTER (PRACTICE OF
48 RADIOLOGIC TECHNOLOGY).
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 SUCH PURPOSES AS OBTAINING FROM THE PERSON OR FROM A
52 THIRD PERSON INFORMATION OR A CONFESSION, PUNISHING THE PERSON FOR AN
53 ACT THE PERSON OR A THIRD PERSON HAS COMMITTED (INCLUDING THE HOLDING OF
54 A BELIEF OR MEMBERSHIP IN ANY GROUP) OR IS SUSPECTED OF HAVING COMMIT-
55 TED, OR INTIMIDATING OR COERCING THE PERSON OR A THIRD PERSON, OR FOR
56 ANY REASON BASED ON DISCRIMINATION OF ANY KIND. IT DOES NOT INCLUDE
A. 5891--A 3
1 PAIN OR SUFFERING ARISING ONLY FROM, INHERENT IN OR INCIDENTAL TO LAWFUL
2 SANCTION.
3 (C) "IMPROPER TREATMENT" MEANS (I) CRUEL, INHUMAN OR DEGRADING, TREAT-
4 MENT OR PUNISHMENT AS DEFINED BY APPLICABLE INTERNATIONAL TREATIES AND
5 THEIR CORRESPONDING INTERPRETING BODIES; OR CRUEL AND UNUSUAL PUNISHMENT
6 AS DEFINED IN THE UNITED STATES CONSTITUTION OR THE NEW YORK STATE
7 CONSTITUTION; OR (II) ANY VIOLATION OF SUBDIVISION THREE OR FOUR OF THIS
8 SECTION.
9 (D) "PRISONER" MEANS ANY PERSON WHO IS SUBJECT TO PUNISHMENT,
10 DETENTION, INCARCERATION, INTERROGATION, INTIMIDATION OR COERCION,
11 REGARDLESS OF WHETHER SUCH ACTION IS PERFORMED OR COMMITTED BY A GOVERN-
12 MENT OR NON-GOVERNMENT ACTOR, ENTITY, OR OFFICIAL; UNDER COLOR OF LAW;
13 OR NOT UNDER COLOR OF LAW.
14 (E) TO "ADVERSELY AFFECT" A PERSON'S PHYSICAL OR MENTAL HEALTH OR
15 CONDITION DOES NOT INCLUDE CAUSING ADVERSE EFFECTS THAT MAY ARISE FROM
16 TREATMENT OR CARE WHEN THAT TREATMENT OR CARE IS PERFORMED IN ACCORDANCE
17 WITH GENERALLY APPLICABLE LEGAL, HEALTH AND PROFESSIONAL STANDARDS AND
18 FOR THE PURPOSES OF EVALUATING, TREATING, PROTECTING OR IMPROVING THE
19 PERSON'S HEALTH.
20 (F) "INTERROGATION" MEANS THE QUESTIONING RELATED TO LAW ENFORCEMENT,
21 THE ENFORCEMENT OF RULES OR REGULATIONS OF AN INSTITUTION IN WHICH
22 PEOPLE ARE DETAINED THROUGH THE CRIMINAL JUSTICE SYSTEM OR FOR MILITARY
23 OR NATIONAL SECURITY REASONS (SUCH AS A JAIL OR OTHER DETENTION FACILI-
24 TY, POLICE FACILITY, PRISON, IMMIGRATION FACILITY, OR MILITARY FACILITY)
25 OR TO MILITARY AND NATIONAL SECURITY INTELLIGENCE GATHERING, WHETHER BY
26 A GOVERNMENT OR NON-GOVERNMENT ACTOR, ENTITY OR OFFICIAL. "INTERRO-
27 GATION" SHALL ALSO INCLUDE QUESTIONING TO AID OR ACCOMPLISH ANY ILLEGAL
28 ACTIVITY OR PURPOSE, WHETHER BY A GOVERNMENT OR NON-GOVERNMENT ACTOR,
29 ENTITY OR OFFICIAL. INTERROGATIONS ARE DISTINCT FROM QUESTIONING USED BY
30 HEALTH CARE PROFESSIONALS TO ASSESS THE PHYSICAL OR MENTAL CONDITION OF
31 AN INDIVIDUAL.
32 2. KNOWLEDGE. IT SHALL BE AN ELEMENT OF ANY VIOLATION OF THIS SECTION
33 THAT THE ACTOR KNEW OR REASONABLY SHOULD HAVE KNOWN THAT HIS OR HER
34 CONDUCT IS OF THE KIND PROHIBITED UNDER THIS SECTION. A HEALTH CARE
35 PROFESSIONAL WHO RECEIVES INFORMATION THAT INDICATES THAT A PRISONER AS
36 DEFINED BY THIS SECTION IS BEING, MAY IN THE FUTURE BE, OR HAS BEEN
37 SUBJECTED TO TORTURE OR IMPROPER TREATMENT, MUST USE DUE DILIGENCE, IN
38 ORDER TO ASSESS THE NATURE OF HIS OR HER CONDUCT AS COVERED BY THIS
39 SECTION.
40 3. GENERAL OBLIGATIONS OF HEALTH CARE PROFESSIONALS. (A) EVERY HEALTH
41 CARE PROFESSIONAL SHALL PROVIDE EVERY PRISONER UNDER HIS OR HER PROFES-
42 SIONAL CARE WITH CARE OR TREATMENT CONSISTENT WITH GENERALLY APPLICABLE
43 LEGAL, HEALTH AND PROFESSIONAL STANDARDS TO THE EXTENT THAT HE OR SHE IS
44 REASONABLY ABLE TO DO SO UNDER THE CIRCUMSTANCES, INCLUDING PROTECTING
45 THE CONFIDENTIALITY OF PATIENT INFORMATION.
46 (B) IN ALL CLINICAL ASSESSMENTS RELATING TO A PRISONER, WHETHER FOR
47 THERAPEUTIC OR EVALUATIVE PURPOSES, HEALTH CARE PROFESSIONALS SHALL
48 EXERCISE THEIR PROFESSIONAL JUDGMENT INDEPENDENT OF THE INTERESTS OF A
49 GOVERNMENT OR OTHER THIRD PARTY.
50 4. CERTAIN CONDUCT OF HEALTH CARE PROFESSIONALS PROHIBITED. (A) NO
51 HEALTH CARE PROFESSIONAL SHALL APPLY HIS OR HER KNOWLEDGE OR SKILLS IN
52 RELATION TO, ENGAGE IN ANY PROFESSIONAL RELATIONSHIP WITH, OR PERFORM
53 PROFESSIONAL SERVICES IN RELATION TO ANY PRISONER UNLESS THE PURPOSE IS
54 SOLELY TO EVALUATE, TREAT, PROTECT, OR IMPROVE THE PHYSICAL OR MENTAL
55 HEALTH OR CONDITION OF THE PRISONER (EXCEPT AS PERMITTED BY PARAGRAPH
56 (B) OR (C) OF SUBDIVISION FIVE OF THIS SECTION).
A. 5891--A 4
1 (B) NO HEALTH CARE PROFESSIONAL SHALL ENGAGE, DIRECTLY OR INDIRECTLY,
2 IN ANY ACT WHICH CONSTITUTES PARTICIPATION IN, COMPLICITY IN, INCITEMENT
3 TO, ASSISTANCE IN, PLANNING OR DESIGN OF, OR ATTEMPT OR CONSPIRACY TO
4 COMMIT TORTURE OR IMPROPER TREATMENT OF A PRISONER. PROHIBITED FORMS OF
5 ENGAGEMENT INCLUDE BUT ARE NOT LIMITED TO:
6 (I) PROVIDING MEANS, KNOWLEDGE OR SKILLS, INCLUDING CLINICAL FINDINGS
7 OR TREATMENT, WITH THE INTENT TO FACILITATE THE PRACTICE OF TORTURE OR
8 IMPROPER TREATMENT;
9 (II) PERMITTING HIS OR HER KNOWLEDGE, SKILLS OR CLINICAL FINDINGS OR
10 TREATMENT TO BE USED IN THE PROCESS OF OR TO FACILITATE TORTURE OR
11 IMPROPER TREATMENT;
12 (III) EXAMINING, EVALUATING, OR TREATING A PRISONER TO CERTIFY WHETHER
13 TORTURE OR IMPROPER TREATMENT CAN BEGIN, BE CONTINUED, OR BE RESUMED;
14 (IV) BEING PRESENT WHILE TORTURE OR IMPROPER TREATMENT IS BEING ADMIN-
15 ISTERED;
16 (V) OMITTING OR SUPPRESSING INDICATIONS OF TORTURE OR IMPROPER TREAT-
17 MENT FROM RECORDS OR REPORTS; AND
18 (VI) ALTERING HEALTH CARE RECORDS OR REPORTS TO HIDE, MISREPRESENT OR
19 DESTROY EVIDENCE OF TORTURE OR IMPROPER TREATMENT.
20 (C) NO HEALTH CARE PROFESSIONAL SHALL APPLY HIS OR HER KNOWLEDGE OR
21 SKILLS OR PERFORM ANY PROFESSIONAL SERVICE IN ORDER TO ASSIST IN THE
22 PUNISHMENT, DETENTION, INCARCERATION, INTIMIDATION, OR COERCION OF A
23 PRISONER WHEN SUCH ASSISTANCE IS PROVIDED IN A MANNER THAT MAY ADVERSELY
24 AFFECT THE PHYSICAL OR MENTAL HEALTH OR CONDITION OF THE PRISONER
25 (EXCEPT AS PERMITTED BY PARAGRAPH (A) OR (B) OF SUBDIVISION FIVE OF THIS
26 SECTION).
27 (D) NO HEALTH CARE PROFESSIONAL SHALL PARTICIPATE IN THE INTERROGATION
28 OF A PRISONER, INCLUDING BEING PRESENT IN THE INTERROGATION ROOM, ASKING
29 OR SUGGESTING QUESTIONS, ADVISING ON THE USE OF SPECIFIC INTERROGATION
30 TECHNIQUES, MONITORING THE INTERROGATION, OR MEDICALLY OR PSYCHOLOGICAL-
31 LY EVALUATING A PERSON FOR THE PURPOSE OF IDENTIFYING POTENTIAL INTERRO-
32 GATION METHODS OR STRATEGIES. HOWEVER, THIS PARAGRAPH SHALL NOT BAR A
33 HEALTH CARE PROFESSIONAL FROM ENGAGING IN CONDUCT UNDER PARAGRAPH (D) OF
34 SUBDIVISION FIVE OF THIS SECTION.
35 5. CERTAIN CONDUCT OF HEALTH CARE PROFESSIONALS PERMITTED. A HEALTH
36 CARE PROFESSIONAL MAY ENGAGE IN THE FOLLOWING CONDUCT SO LONG AS IT DOES
37 NOT VIOLATE SUBDIVISION THREE OR FOUR OF THIS SECTION, IT DOES NOT
38 ADVERSELY AFFECT THE PHYSICAL OR MENTAL HEALTH OR CONDITION OF A PRISON-
39 ER OR POTENTIAL SUBJECT, AND IS NOT OTHERWISE UNLAWFUL:
40 (A) APPROPRIATELY PARTICIPATING OR AIDING IN THE INVESTIGATION, PROSE-
41 CUTION, OR DEFENSE OF A CRIMINAL, ADMINISTRATIVE OR CIVIL MATTER;
42 (B) PARTICIPATING IN AN ACT THAT RESTRAINS A PRISONER OR TEMPORARILY
43 ALTERS THE PHYSICAL OR MENTAL ACTIVITY OF A PRISONER, WHERE THE ACT
44 COMPLIES WITH GENERALLY APPLICABLE LEGAL, HEALTH AND PROFESSIONAL STAND-
45 ARDS, IS NECESSARY FOR THE PROTECTION OF THE PHYSICAL OR MENTAL HEALTH,
46 CONDITION OR SAFETY OF THE PRISONER, OTHER PRISONERS, OR PERSONS CARING
47 FOR, GUARDING OR CONFINING THE PRISONER;
48 (C) CONDUCTING BONA FIDE HUMAN SUBJECT RESEARCH IN ACCORDANCE WITH
49 GENERALLY ACCEPTED LEGAL, HEALTH AND PROFESSIONAL STANDARDS WHERE THE
50 RESEARCH INCLUDES SAFEGUARDS FOR HUMAN SUBJECTS EQUIVALENT TO THOSE
51 REQUIRED BY FEDERAL LAW, INCLUDING INFORMED CONSENT AND INSTITUTIONAL
52 REVIEW BOARD APPROVAL WHERE APPLICABLE;
53 (D) TRAINING RELATED TO THE FOLLOWING PURPOSES, SO LONG AS IT IS NOT
54 PROVIDED IN SUPPORT OF SPECIFIC ONGOING OR ANTICIPATED INTERROGATIONS:
55 (I) RECOGNIZING AND RESPONDING TO PERSONS WITH PHYSICAL OR MENTAL
56 ILLNESS OR CONDITIONS,
A. 5891--A 5
1 (II) THE POSSIBLE PHYSICAL AND MENTAL EFFECTS OF PARTICULAR TECHNIQUES
2 AND CONDITIONS OF INTERROGATION, OR
3 (III) THE DEVELOPMENT OF EFFECTIVE INTERROGATION STRATEGIES NOT
4 INVOLVING THE PRACTICE OF TORTURE OR IMPROPER TREATMENT.
5 6. DUTY TO REPORT. A HEALTH CARE PROFESSIONAL WHO HAS REASONABLE
6 GROUNDS (NOT BASED SOLELY ON PUBLICLY AVAILABLE INFORMATION) TO BELIEVE
7 THAT TORTURE, IMPROPER TREATMENT OR OTHER CONDUCT IN VIOLATION OF THIS
8 SECTION HAS OCCURRED, IS OCCURRING, OR WILL OCCUR SHALL, AS SOON AS IS
9 POSSIBLE WITHOUT JEOPARDIZING THE PHYSICAL SAFETY OF HIMSELF OR HERSELF,
10 THE PRISONER, OR OTHER PARTIES, REPORT SUCH CONDUCT TO:
11 (A) A GOVERNMENT AGENCY THAT THE HEALTH CARE PROFESSIONAL REASONABLY
12 BELIEVES HAS LEGAL AUTHORITY TO PUNISH OR PREVENT THE CONTINUATION OF
13 TORTURE OR THE IMPROPER TREATMENT OF A PRISONER OR CONDUCT IN VIOLATION
14 OF THIS SECTION AND IS REASONABLY LIKELY TO ATTEMPT TO DO SO; OR
15 (B) A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY THAT THE HEALTH CARE
16 PROFESSIONAL REASONABLY BELIEVES WILL NOTIFY SUCH A GOVERNMENT AGENCY OF
17 THE TORTURE OR THE IMPROPER TREATMENT OF A PRISONER OR CONDUCT IN
18 VIOLATION OF THIS SECTION OR TAKE OTHER ACTION TO PUBLICIZE OR PREVENT
19 SUCH TORTURE, TREATMENT OR CONDUCT; AND
20 (C) IN ADDITION TO REPORTING UNDER PARAGRAPH (A) OR (B) OF THIS SUBDI-
21 VISION: (I) IN THE CASE OF AN ALLEGED VIOLATION BY A HEALTH CARE PROFES-
22 SIONAL LICENSED UNDER ARTICLE ONE HUNDRED THIRTY-ONE OR ONE HUNDRED
23 THIRTY-ONE-B OF THE EDUCATION LAW, A REPORT SHALL BE FILED WITH THE
24 OFFICE OF PROFESSIONAL MEDICAL CONDUCT; AND (II) IN THE CASE OF AN
25 ALLEGED VIOLATION BY ANY OTHER HEALTH CARE PROFESSIONAL LICENSED, REGIS-
26 TERED OR CERTIFIED UNDER TITLE EIGHT OF THE EDUCATION LAW, A REPORT
27 SHALL BE FILED WITH THE OFFICE OF PROFESSIONAL DISCIPLINE; PROVIDED THAT
28 FOR THE PURPOSE OF THIS PARAGRAPH, WHERE A PERSON HOLDS A LICENSE,
29 REGISTRATION OR CERTIFICATION UNDER THE LAWS OF A JURISDICTION OTHER
30 THAN THE STATE OF NEW YORK THAT IS FOR A PROFESSION SUBSTANTIALLY COMPA-
31 RABLE TO ONE LISTED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS SECTION,
32 THE PERSON SHALL BE DEEMED TO BE A HEALTH CARE PROFESSIONAL AND THE
33 PERSON'S LICENSE, REGISTRATION OR CERTIFICATION SHALL BE DEEMED TO BE
34 UNDER THE APPROPRIATE ARTICLE OF TITLE EIGHT OF THE EDUCATION LAW.
35 7. MITIGATION. THE FOLLOWING MAY BE CONSIDERED IN FULL OR PARTIAL
36 MITIGATION OF A VIOLATION OF THIS SECTION BY THE HEALTH CARE PROFES-
37 SIONAL:
38 (A) COMPLIANCE WITH SUBDIVISION SIX OF THIS SECTION; OR
39 (B) COOPERATION IN GOOD FAITH WITH AN INVESTIGATION OF A VIOLATION OF
40 THIS SECTION.
41 8. APPLICABILITY. THIS SECTION SHALL APPLY TO CONDUCT TAKING PLACE
42 WITHIN OR OUTSIDE NEW YORK STATE, AND WITHOUT REGARD TO WHETHER THE
43 CONDUCT IS COMMITTED BY A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY, OFFI-
44 CIAL, OR ACTOR OR UNDER ACTUAL OR ASSERTED COLOR OF LAW.
45 9. SCOPE OF PRACTICE NOT EXPANDED. THIS SECTION SHALL NOT BE CONSTRUED
46 TO EXPAND THE LAWFUL SCOPE OF PRACTICE OF ANY HEALTH CARE PROFESSIONAL.
47 S 3. Section 6509 of the education law is amended by adding a new
48 subdivision 15 to read as follows:
49 (15) ANY VIOLATION OF SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW
50 (RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
51 BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
52 S 4. Section 6530 of the education law is amended by adding a new
53 subdivision 50 to read as follows:
54 50. ANY VIOLATION OF SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW
55 (RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
56 BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
A. 5891--A 6
1 S 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
10 TWENTY-THREE OF THE PUBLIC HEALTH LAW (RELATING TO PARTICIPATION IN
11 TORTURE OR IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE PROFES-
12 SIONALS).
13 S 6. Subdivision 3 of section 740 of the labor law, as added by chap-
14 ter 660 of the laws of 1984, is amended to read as follows:
15 3. Application. The protection against retaliatory personnel action
16 provided by paragraph (a) of subdivision two of this section pertaining
17 to disclosure to a public body shall not apply to an employee who makes
18 such disclosure to a public body unless the employee has brought the
19 activity, policy or practice in violation of law, rule or regulation to
20 the attention of a supervisor of the employer and has afforded such
21 employer a reasonable opportunity to correct such activity, policy or
22 practice. HOWEVER, THIS SUBDIVISION SHALL NOT APPLY TO ANY REPORT OF A
23 VIOLATION UNDER SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW (PARTIC-
24 IPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE
25 PROFESSIONALS).
26 S 7. Paragraphs (a) and (b) of subdivision 2 of section 741 of the
27 labor law, as added by chapter 24 of the laws of 2002, are amended and a
28 new paragraph (c) is added to read as follows:
29 (a) discloses or threatens to disclose to a supervisor, or to a public
30 body an activity, policy or practice of the employer or agent that the
31 employee, in good faith, reasonably believes constitutes improper quali-
32 ty of patient care; [or]
33 (b) objects to, or refuses to participate in any activity, policy or
34 practice of the employer or agent that the employee, in good faith,
35 reasonably believes constitutes improper quality of patient care[.]; OR
36 (C) REPORTS OR THREATENS TO REPORT ANY VIOLATION OF SECTION
37 TWENTY-THREE OF THE PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE OR
38 IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE PROFESSIONALS).
39 S 8. Subdivision 3 of section 741 of the labor law, as added by chap-
40 ter 24 of the laws of 2002, is amended to read as follows:
41 3. Application. The protection against retaliatory personnel action
42 provided by subdivision two of this section shall not apply unless the
43 employee has brought the improper quality of patient care to the atten-
44 tion of a supervisor and has afforded the employer a reasonable opportu-
45 nity to correct such activity, policy or practice. This subdivision
46 shall not apply to an action or failure to act described in paragraph
47 (a) of subdivision two of this section where the improper quality of
48 patient care described therein presents an imminent threat to public
49 health or safety or to the health of a specific patient and the employee
50 reasonably believes in good faith that reporting to a supervisor would
51 not result in corrective action. HOWEVER, THIS SUBDIVISION SHALL NOT
52 APPLY TO ANY REPORT OF A VIOLATION UNDER SECTION TWENTY-THREE OF THE
53 PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF
54 PRISONERS BY HEALTH CARE PROFESSIONALS).
55 S 9. The introduction or enactment of this act shall not be construed
56 to mean that: (a) conduct described by this act does not already violate
A. 5891--A 7
1 state law or constitute professional misconduct; or (b) conduct other
2 than that described by this act does not violate other state law or
3 otherwise constitute professional misconduct.
4 S 10. Severability. If any provision of this act, or any application
5 of any provision of this act, is held to be invalid, that shall not
6 affect the validity or effectiveness of any other provision of this act
7 or any other application of any provision of this act.
8 S 11. This act shall take effect on the first of January next
9 succeeding the date on which it shall have become a law.