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BILL NUMBER:S7456B

TITLE OF BILL: An act to amend the education law, in relation to the duties of the professional conduct officer, applicable state board for the profession, or the office of professional discipline to report potential criminal conduct to the appropriate law enforcement official or authority

PURPOSE: The bill establishes the obligation of the professional conduct officer designated to investigate a complaint of a licensee's professional misconduct or the office of professional discipline to notify law enforcement if it determines that there is a reasonable belief that an act that constitutes a sex offense has been committed by the licensee. This reporting obligation minors the reporting obligation of the board for professional medical conduct or the office of professional medical conduct under such circumstances.

JUSTIFICATION: The Penal Law provides that a person is deemed incapable of consent when such person is a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree, criminal sexual act in the third degree, aggravated sexual abuse in the fourth degree or sexual abuse in the third degree, and the act of sexual conduct occurs during a treatment session, consultation, interview or examination. Mental health care provider is defined to include a licensed physician, licensed psychologist and licensed clinical social worker. Accordingly, if a mental health care provider engages in sexual intercourse with his or her patient during a session, it constitutes third degree rape.

If the mental health care provider is a psychiatrist and the authority charged with investigating complaints about physicians and psychiatrists -- the Office of Professional Misconduct (OPMC), has knowledge of such conduct, OPMC is required to report it to law enforcement. However, if the mental health care provider is a psychotherapist or social worker and the authority charged with investigating complaints about licensed psychologists or clinical social workers -- the office of Professional Discipline (GPD) , or any other professional conduct officer or state board for such profession has knowledge of such conduct, OPD is not required to report the conduct to law enforcement.

There is no rational basis to treat the identical act by licensed professionals differently merely because one set of professionals is overseen by OPMC and the other set of professionals is overseen by OPD or other state board for profession. Both a psychiatrist and a psychotherapist

occupy the same position of trust, authority and dependency vis-a-vis their patient who is likely in a vulnerable and fragile state and seeks their guidance and assistance in what is by nature an intimate setting.

A patient who seeks help from a licensed mental health care provider assumes that the provider he or she has retained has the appropriate training to render assistance. He or she also has the right to expect that the provider will do so with professional integrity and will not compromise his patient's safety and well-being. with this legislation, we will better ensure that the expectation is a reality.

SUMMARY OF PROVISIONS: Section one amends section 6510 of the education law by adding a new subdivision 5-a to provide that if at any time the professional conduct officer designated to investigate a complaint of a licensee's professional misconduct or the office of professional discipline determines that there is a reasonable belief that an act committed during a treatment session, consultation, interview or examination by the licensee constitutes a sex offense, such professional conduct officer, or the office of professional discipline shall notify the appropriate law enforcement official or authority.

Section two provides the effective date.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None to the State.

EFFECTIVE DATE: Immediate.

Text

STATE OF NEW YORK
________________________________________________________________________

7456--B

IN SENATE

May 22, 2012
___________

Introduced  by  Sen.  SALAND -- read twice and ordered printed, and when
  printed to be  committed  to  the  Committee  on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said  committee  --  committee  discharged,  bill amended, ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the education law, in relation  to  the  duties  of  the
  professional  conduct  officer, applicable state board for the profes-
  sion, or the office of professional  discipline  to  report  potential
  criminal  conduct  to  the  appropriate  law  enforcement  official or
  authority

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.   Section 6510 of the education law is amended by adding a
new subdivision 5-a to read as follows:
  5-A. AT ANY TIME, IF THE PROFESSIONAL CONDUCT OFFICER OR  HIS  OR  HER
DESIGNEE  DESIGNATED  TO INVESTIGATE A COMPLAINT OF PROFESSIONAL MISCON-
DUCT OF A LICENSED HEALTH CARE PROVIDER OR LICENSED MENTAL  HEALTH  CARE
PROVIDER  DETERMINES  THAT THERE IS A REASONABLE BELIEF THAT AN ACT THAT
CONSTITUTES A SEX OFFENSE IDENTIFIED IN  PARAGRAPH  (H)  OF  SUBDIVISION
THREE  OF  SECTION  130.05  OF  THE  PENAL LAW HAS BEEN COMMITTED BY THE
LICENSEE AGAINST A CLIENT OR PATIENT DURING A TREATMENT SESSION, CONSUL-
TATION, INTERVIEW, OR EXAMINATION, THE PROFESSIONAL CONDUCT  OFFICER  OR
THE  OFFICE  OF PROFESSIONAL DISCIPLINE SHALL NOTIFY THE APPROPRIATE LAW
ENFORCEMENT OFFICIAL OR AUTHORITY.
  S 2. This act shall take effect immediately.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15950-06-2