S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4440

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2013
                               ___________

Introduced by M. of A. GOTTFRIED, CAHILL, RIVERA, SCHIMEL, GLICK, CLARK,
  MILLMAN,  ROBINSON,  PAULIN,  HOOPER, KELLNER, JAFFEE, BARRON, LIFTON,
  COOK, PERRY, ENGLEBRIGHT, O'DONNELL, ARROYO,  MARKEY,  TITONE,  ROSEN-
  THAL,  KAVANAGH,  STEVENSON,  HEVESI -- Multi-Sponsored by -- M. of A.
  BRENNAN, DINOWITZ, FARRELL, GALEF, GIBSON, HEASTIE, LUPARDO,  PEOPLES-
  STOKES, PRETLOW, SCARBOROUGH, SWEENEY, WEISENBERG, WRIGHT -- 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:

  Section 1. Legislative policy and intent. This  legislation  is  based
on, and is intended to give effect to, international treaties and stand-
ards;  federal, state and local law; and professional standards relating
to torture, improper treatment of prisoners, and related matters. It  is
guided  by  two basic principles: (1) health care professionals shall be
dedicated to  providing  the  highest  standard  of  health  care,  with
compassion and respect for human dignity and rights; and (2) torture and
improper  treatment  of  prisoners  are  wrong and inconsistent with the
practice of the health care professions. The legislature finds that  the
conduct  prohibited  by  this  act  violates the ethical and legal obli-
gations of licensed health care professionals.   This  legislation  will
further  protect  the  professionalism of New York state licensed health
care professionals by authorizing  and  obligating  them  to  refuse  to
participate  in  torture  and  improper treatment of prisoners, which in
turn will protect the life and health of the people  of  the  state  and
those with whom New York licensed health care professionals interact.  A
health  care  professional who comes to the aid of a prisoner should not
be presumed to be in violation when she or he is fulfilling the  ethical
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.
                                                           LBD01195-01-3
              

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for example, attends to a prisoner in order to allow torture or improper
treatment to commence or continue is  not  acting  beneficently.    Such
practices  are  inconsistent  with professional ethics and standards and
are  violations  of  this legislation.   The legislature is mindful that
ordinarily there are limits on New York state's jurisdiction relating to
conduct outside the state or under federal  authority.  However,  it  is
proper  for  the state to regulate health care professional licensure in
relation to a professional's conduct,  even  where  the  conduct  occurs
outside  the  state;  certain  wrongful  out-of-state conduct is already
grounds for professional discipline. Therefore, it is the  legislature's
intent that this legislation be applied to the fullest extent possible.
  S  2.  The  public health law is amended by adding a new section 23 to
read as follows:
  S 23. PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF  PRISONERS  BY
HEALTH CARE PROFESSIONALS.  1. DEFINITIONS. AS USED IN THIS SECTION, THE
TERMS "TORTURE" AND "IMPROPER TREATMENT" SHALL BE INTERPRETED IN ACCORD-
ANCE  WITH APPLICABLE LAW, INCLUDING INTERNATIONAL TREATIES TO WHICH THE
UNITED STATES IS A PARTY.  HOWEVER, FOR THE PURPOSES OF THIS SECTION, IT
SHALL NOT BE AN ELEMENT OF EITHER "TORTURE" OR "IMPROPER TREATMENT" THAT
SUCH ACTS BE COMMITTED BY A GOVERNMENT OR NON-GOVERNMENT ACTOR,  ENTITY,
OR  OFFICIAL;  UNDER COLOR OF LAW; OR NOT UNDER COLOR OF LAW. AS USED IN
THIS SECTION, UNLESS THE CONTEXT CLEARLY REQUIRES OTHERWISE, THE FOLLOW-
ING TERMS HAVE THE FOLLOWING MEANINGS:
  (A) "HEALTH CARE PROFESSIONAL" MEANS ANY PERSON LICENSED,  REGISTERED,
CERTIFIED, OR EXEMPT TO PRACTICE UNDER (I) ANY OF THE FOLLOWING ARTICLES
OF  THE  EDUCATION  LAW:  ONE HUNDRED THIRTY-ONE (MEDICINE), ONE HUNDRED
THIRTY-ONE-B (PHYSICIAN ASSISTANTS), ONE HUNDRED THIRTY-ONE-C  (SPECIAL-
IST  ASSISTANTS),  ONE  HUNDRED  THIRTY-TWO  (CHIROPRACTIC), ONE HUNDRED
THIRTY-THREE (DENTISTRY AND  DENTAL  HYGIENE),  ONE  HUNDRED  THIRTY-SIX
(PHYSICAL  THERAPY AND PHYSICAL THERAPIST ASSISTANTS), ONE HUNDRED THIR-
TY-SEVEN (PHARMACY), ONE  HUNDRED  THIRTY-NINE  (NURSING),  ONE  HUNDRED
FORTY  (PROFESSIONAL  MIDWIFERY  PRACTICE  ACT),  ONE  HUNDRED FORTY-ONE
(PODIATRY), ONE HUNDRED FORTY-THREE (OPTOMETRY), ONE HUNDRED  FORTY-FOUR
(OPHTHALMIC  DISPENSING),  ONE  HUNDRED  FIFTY-THREE  (PSYCHOLOGY),  ONE
HUNDRED FIFTY-FOUR (SOCIAL WORK), ONE HUNDRED FIFTY-FIVE (MASSAGE THERA-
PY),  ONE  HUNDRED  FIFTY-SIX  (OCCUPATIONAL   THERAPY),   ONE   HUNDRED
FIFTY-SEVEN   (DIETETICS   AND   NUTRITION),   ONE   HUNDRED  FIFTY-NINE
(SPEECH-LANGUAGE  PATHOLOGISTS  AND  AUDIOLOGISTS),  ONE  HUNDRED  SIXTY
(ACUPUNCTURE),  ONE  HUNDRED  SIXTY-THREE (MENTAL HEALTH PRACTITIONERS),
ONE HUNDRED SIXTY-FOUR (RESPIRATORY THERAPISTS AND  RESPIRATORY  THERAPY
TECHNICIANS),  ONE  HUNDRED  SIXTY-FIVE  (CLINICAL LABORATORY TECHNOLOGY
PRACTICE ACT), OR ONE HUNDRED SIXTY-SIX (MEDICAL PHYSICS  PRACTICE),  OR
(II)  ARTICLE  THIRTY-FIVE OF THIS CHAPTER (PRACTICE OF RADIOLOGIC TECH-
NOLOGY).
  (B) "TORTURE" MEANS ANY INTENTIONAL ACT  OR  INTENTIONAL  OMISSION  BY
WHICH SEVERE PAIN OR SUFFERING, WHETHER PHYSICAL OR MENTAL, IS INFLICTED
ON  A  PERSON  FOR  SUCH PURPOSES AS OBTAINING FROM THE PERSON OR FROM A
THIRD PERSON INFORMATION OR A CONFESSION, PUNISHING THE  PERSON  FOR  AN
ACT THE PERSON OR A THIRD PERSON HAS COMMITTED (INCLUDING THE HOLDING OF
A  BELIEF  OR MEMBERSHIP IN ANY GROUP) OR IS SUSPECTED OF HAVING COMMIT-
TED, OR INTIMIDATING OR COERCING THE PERSON OR A THIRD  PERSON,  OR  FOR
ANY  REASON  BASED  ON  DISCRIMINATION OF ANY KIND.  IT DOES NOT INCLUDE
PAIN OR SUFFERING ARISING ONLY FROM, INHERENT IN OR INCIDENTAL TO LAWFUL
SANCTION.
  (C) "IMPROPER TREATMENT" MEANS (I) CRUEL, INHUMAN OR DEGRADING, TREAT-
MENT OR PUNISHMENT AS DEFINED BY APPLICABLE INTERNATIONAL  TREATIES  AND

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THEIR CORRESPONDING INTERPRETING BODIES; OR CRUEL AND UNUSUAL PUNISHMENT
AS  DEFINED  IN  THE  UNITED  STATES  CONSTITUTION OR THE NEW YORK STATE
CONSTITUTION; OR (II) ANY VIOLATION OF SUBDIVISION THREE OR FOUR OF THIS
SECTION.
  (D)  "PRISONER"  MEANS  ANY  PERSON  WHO  IS  SUBJECT  TO  PUNISHMENT,
DETENTION,  INCARCERATION,  INTERROGATION,  INTIMIDATION  OR   COERCION,
REGARDLESS OF WHETHER SUCH ACTION IS PERFORMED OR COMMITTED BY A GOVERN-
MENT  OR  NON-GOVERNMENT ACTOR, ENTITY, OR OFFICIAL; UNDER COLOR OF LAW;
OR NOT UNDER COLOR OF LAW.
  (E) TO "ADVERSELY AFFECT" A PERSON'S  PHYSICAL  OR  MENTAL  HEALTH  OR
CONDITION  DOES  NOT INCLUDE CAUSING ADVERSE EFFECTS THAT MAY ARISE FROM
TREATMENT OR CARE WHEN THAT TREATMENT OR CARE IS PERFORMED IN ACCORDANCE
WITH GENERALLY APPLICABLE LEGAL, HEALTH AND PROFESSIONAL  STANDARDS  AND
FOR  THE  PURPOSES  OF EVALUATING, TREATING, PROTECTING OR IMPROVING THE
PERSON'S HEALTH.
  (F) "INTERROGATION" MEANS THE QUESTIONING RELATED TO LAW  ENFORCEMENT,
THE  ENFORCEMENT  OF  RULES  OR  REGULATIONS  OF AN INSTITUTION IN WHICH
PEOPLE ARE DETAINED THROUGH THE CRIMINAL JUSTICE SYSTEM OR FOR  MILITARY
OR  NATIONAL SECURITY REASONS (SUCH AS A JAIL OR OTHER DETENTION FACILI-
TY, POLICE FACILITY, PRISON, IMMIGRATION FACILITY, OR MILITARY FACILITY)
OR TO MILITARY AND NATIONAL SECURITY INTELLIGENCE GATHERING, WHETHER  BY
A  GOVERNMENT  OR  NON-GOVERNMENT  ACTOR,  ENTITY OR OFFICIAL. "INTERRO-
GATION" SHALL ALSO INCLUDE QUESTIONING TO AID OR ACCOMPLISH ANY  ILLEGAL
ACTIVITY  OR  PURPOSE,  WHETHER BY A GOVERNMENT OR NON-GOVERNMENT ACTOR,
ENTITY OR OFFICIAL. INTERROGATIONS ARE DISTINCT FROM QUESTIONING USED BY
HEALTH CARE PROFESSIONALS TO ASSESS THE PHYSICAL OR MENTAL CONDITION  OF
AN INDIVIDUAL.
  2.  KNOWLEDGE. IT SHALL BE AN ELEMENT OF ANY VIOLATION OF THIS SECTION
THAT THE ACTOR KNEW OR REASONABLY SHOULD HAVE  KNOWN  THAT  HIS  OR  HER
CONDUCT  IS  OF  THE  KIND  PROHIBITED UNDER THIS SECTION. A HEALTH CARE
PROFESSIONAL WHO RECEIVES INFORMATION THAT INDICATES THAT A PRISONER  AS
DEFINED  BY  THIS  SECTION  IS  BEING, MAY IN THE FUTURE BE, OR HAS BEEN
SUBJECTED TO TORTURE OR IMPROPER TREATMENT, MUST USE DUE  DILIGENCE,  IN
ORDER  TO  ASSESS  THE  NATURE  OF HIS OR HER CONDUCT AS COVERED BY THIS
SECTION.
  3. GENERAL OBLIGATIONS OF HEALTH CARE PROFESSIONALS.  (A) EVERY HEALTH
CARE PROFESSIONAL SHALL PROVIDE EVERY PRISONER UNDER HIS OR HER  PROFES-
SIONAL  CARE WITH CARE OR TREATMENT CONSISTENT WITH GENERALLY APPLICABLE
LEGAL, HEALTH AND PROFESSIONAL STANDARDS TO THE EXTENT THAT HE OR SHE IS
REASONABLY ABLE TO DO SO UNDER THE CIRCUMSTANCES,  INCLUDING  PROTECTING
THE CONFIDENTIALITY OF PATIENT INFORMATION.
  (B)  IN  ALL  CLINICAL ASSESSMENTS RELATING TO A PRISONER, WHETHER FOR
THERAPEUTIC OR EVALUATIVE  PURPOSES,  HEALTH  CARE  PROFESSIONALS  SHALL
EXERCISE  THEIR  PROFESSIONAL JUDGMENT INDEPENDENT OF THE INTERESTS OF A
GOVERNMENT OR OTHER THIRD PARTY.
  4. CERTAIN CONDUCT OF HEALTH CARE PROFESSIONALS PROHIBITED.    (A)  NO
HEALTH  CARE  PROFESSIONAL SHALL APPLY HIS OR HER KNOWLEDGE OR SKILLS IN
RELATION TO, ENGAGE IN ANY PROFESSIONAL RELATIONSHIP  WITH,  OR  PERFORM
PROFESSIONAL  SERVICES IN RELATION TO ANY PRISONER UNLESS THE PURPOSE IS
SOLELY TO EVALUATE, TREAT, PROTECT, OR IMPROVE THE  PHYSICAL  OR  MENTAL
HEALTH  OR  CONDITION  OF THE PRISONER (EXCEPT AS PERMITTED BY PARAGRAPH
(B) OR (C) OF SUBDIVISION FIVE OF THIS SECTION).
  (B) NO HEALTH CARE PROFESSIONAL SHALL ENGAGE, DIRECTLY OR  INDIRECTLY,
IN ANY ACT WHICH CONSTITUTES PARTICIPATION IN, COMPLICITY IN, INCITEMENT
TO,  ASSISTANCE  IN,  PLANNING OR DESIGN OF, OR ATTEMPT OR CONSPIRACY TO

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COMMIT TORTURE OR IMPROPER TREATMENT OF A PRISONER. PROHIBITED FORMS  OF
ENGAGEMENT INCLUDE BUT ARE NOT LIMITED TO:
  (I)  PROVIDING MEANS, KNOWLEDGE OR SKILLS, INCLUDING CLINICAL FINDINGS
OR TREATMENT, WITH THE INTENT TO FACILITATE THE PRACTICE OF  TORTURE  OR
IMPROPER TREATMENT;
  (II)  PERMITTING  HIS OR HER KNOWLEDGE, SKILLS OR CLINICAL FINDINGS OR
TREATMENT TO BE USED IN THE PROCESS  OF  OR  TO  FACILITATE  TORTURE  OR
IMPROPER TREATMENT;
  (III) EXAMINING, EVALUATING, OR TREATING A PRISONER TO CERTIFY WHETHER
TORTURE OR IMPROPER TREATMENT CAN BEGIN, BE CONTINUED, OR BE RESUMED;
  (IV) BEING PRESENT WHILE TORTURE OR IMPROPER TREATMENT IS BEING ADMIN-
ISTERED;
  (V)  OMITTING OR SUPPRESSING INDICATIONS OF TORTURE OR IMPROPER TREAT-
MENT FROM RECORDS OR REPORTS; AND
  (VI) ALTERING HEALTH CARE RECORDS OR REPORTS TO HIDE, MISREPRESENT  OR
DESTROY EVIDENCE OF TORTURE OR IMPROPER TREATMENT.
  (C)  NO  HEALTH  CARE PROFESSIONAL SHALL APPLY HIS OR HER KNOWLEDGE OR
SKILLS OR PERFORM ANY PROFESSIONAL SERVICE IN ORDER  TO  ASSIST  IN  THE
PUNISHMENT,  DETENTION,  INCARCERATION,  INTIMIDATION,  OR COERCION OF A
PRISONER WHEN SUCH ASSISTANCE IS PROVIDED IN A MANNER THAT MAY ADVERSELY
AFFECT THE PHYSICAL OR  MENTAL  HEALTH  OR  CONDITION  OF  THE  PRISONER
(EXCEPT AS PERMITTED BY PARAGRAPH (A) OR (B) OF SUBDIVISION FIVE OF THIS
SECTION).
  (D) NO HEALTH CARE PROFESSIONAL SHALL PARTICIPATE IN THE INTERROGATION
OF A PRISONER, INCLUDING BEING PRESENT IN THE INTERROGATION ROOM, ASKING
OR  SUGGESTING  QUESTIONS, ADVISING ON THE USE OF SPECIFIC INTERROGATION
TECHNIQUES, MONITORING THE INTERROGATION, OR MEDICALLY OR PSYCHOLOGICAL-
LY EVALUATING A PERSON FOR THE PURPOSE OF IDENTIFYING POTENTIAL INTERRO-
GATION METHODS OR STRATEGIES. HOWEVER, THIS PARAGRAPH SHALL  NOT  BAR  A
HEALTH CARE PROFESSIONAL FROM ENGAGING IN CONDUCT UNDER PARAGRAPH (D) OF
SUBDIVISION FIVE OF THIS SECTION.
  5.  CERTAIN  CONDUCT  OF HEALTH CARE PROFESSIONALS PERMITTED. A HEALTH
CARE PROFESSIONAL MAY ENGAGE IN THE FOLLOWING CONDUCT SO LONG AS IT DOES
NOT VIOLATE SUBDIVISION THREE OR FOUR  OF  THIS  SECTION,  IT  DOES  NOT
ADVERSELY AFFECT THE PHYSICAL OR MENTAL HEALTH OR CONDITION OF A PRISON-
ER OR POTENTIAL SUBJECT, AND IS NOT OTHERWISE UNLAWFUL:
  (A) APPROPRIATELY PARTICIPATING OR AIDING IN THE INVESTIGATION, PROSE-
CUTION, OR DEFENSE OF A CRIMINAL, ADMINISTRATIVE OR CIVIL MATTER;
  (B)  PARTICIPATING  IN AN ACT THAT RESTRAINS A PRISONER OR TEMPORARILY
ALTERS THE PHYSICAL OR MENTAL ACTIVITY OF  A  PRISONER,  WHERE  THE  ACT
COMPLIES WITH GENERALLY APPLICABLE LEGAL, HEALTH AND PROFESSIONAL STAND-
ARDS,  IS NECESSARY FOR THE PROTECTION OF THE PHYSICAL OR MENTAL HEALTH,
CONDITION OR SAFETY OF THE PRISONER, OTHER PRISONERS, OR PERSONS  CARING
FOR, GUARDING OR CONFINING THE PRISONER;
  (C)  CONDUCTING  BONA  FIDE  HUMAN SUBJECT RESEARCH IN ACCORDANCE WITH
GENERALLY ACCEPTED LEGAL, HEALTH AND PROFESSIONAL  STANDARDS  WHERE  THE
RESEARCH  INCLUDES  SAFEGUARDS  FOR  HUMAN  SUBJECTS EQUIVALENT TO THOSE
REQUIRED BY FEDERAL LAW, INCLUDING INFORMED  CONSENT  AND  INSTITUTIONAL
REVIEW BOARD APPROVAL WHERE APPLICABLE;
  (D)  TRAINING  RELATED TO THE FOLLOWING PURPOSES, SO LONG AS IT IS NOT
PROVIDED IN SUPPORT OF SPECIFIC ONGOING OR ANTICIPATED INTERROGATIONS:
  (I) RECOGNIZING AND RESPONDING TO  PERSONS  WITH  PHYSICAL  OR  MENTAL
ILLNESS OR CONDITIONS,
  (II) THE POSSIBLE PHYSICAL AND MENTAL EFFECTS OF PARTICULAR TECHNIQUES
AND CONDITIONS OF INTERROGATION, OR

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  (III)  THE  DEVELOPMENT  OF  EFFECTIVE  INTERROGATION  STRATEGIES  NOT
INVOLVING THE PRACTICE OF TORTURE OR IMPROPER TREATMENT.
  6.  DUTY  TO  REPORT.  A  HEALTH  CARE PROFESSIONAL WHO HAS REASONABLE
GROUNDS (NOT BASED SOLELY ON PUBLICLY AVAILABLE INFORMATION) TO  BELIEVE
THAT  TORTURE,  IMPROPER TREATMENT OR OTHER CONDUCT IN VIOLATION OF THIS
SECTION HAS OCCURRED, IS OCCURRING, OR WILL OCCUR SHALL, AS SOON  AS  IS
POSSIBLE WITHOUT JEOPARDIZING THE PHYSICAL SAFETY OF HIMSELF OR HERSELF,
THE PRISONER, OR OTHER PARTIES, REPORT SUCH CONDUCT TO:
  (A)  A  GOVERNMENT AGENCY THAT THE HEALTH CARE PROFESSIONAL REASONABLY
BELIEVES HAS LEGAL AUTHORITY TO PUNISH OR PREVENT  THE  CONTINUATION  OF
TORTURE  OR THE IMPROPER TREATMENT OF A PRISONER OR CONDUCT IN VIOLATION
OF THIS SECTION AND IS REASONABLY LIKELY TO ATTEMPT TO DO SO; OR
  (B) A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY  THAT  THE  HEALTH  CARE
PROFESSIONAL REASONABLY BELIEVES WILL NOTIFY SUCH A GOVERNMENT AGENCY OF
THE  TORTURE  OR  THE  IMPROPER  TREATMENT  OF  A PRISONER OR CONDUCT IN
VIOLATION OF THIS SECTION OR TAKE OTHER ACTION TO PUBLICIZE  OR  PREVENT
SUCH TORTURE, TREATMENT OR CONDUCT; AND
  (C) IN ADDITION TO REPORTING UNDER PARAGRAPH (A) OR (B) OF THIS SUBDI-
VISION: (I) IN THE CASE OF AN ALLEGED VIOLATION BY A HEALTH CARE PROFES-
SIONAL  LICENSED UNDER ARTICLE ONE HUNDRED THIRTY-ONE, ONE HUNDRED THIR-
TY-ONE-B OR ONE HUNDRED THIRTY-ONE-C OF  THE  EDUCATION  LAW,  A  REPORT
SHALL BE FILED WITH THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT; AND (II)
IN  THE  CASE  OF  AN ALLEGED VIOLATION BY ANY OTHER HEALTH CARE PROFES-
SIONAL LICENSED, REGISTERED OR CERTIFIED UNDER TITLE EIGHT OF THE EDUCA-
TION LAW, A REPORT SHALL BE FILED WITH THE OFFICE OF PROFESSIONAL DISCI-
PLINE; PROVIDED THAT FOR THE PURPOSE OF THIS PARAGRAPH, WHERE  A  PERSON
HOLDS  A  LICENSE,  REGISTRATION  OR  CERTIFICATION  UNDER THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF NEW YORK THAT IS FOR  A  PROFESSION
SUBSTANTIALLY  COMPARABLE  TO ONE LISTED IN PARAGRAPH (A) OF SUBDIVISION
ONE OF THIS SECTION, THE PERSON SHALL BE DEEMED  TO  BE  A  HEALTH  CARE
PROFESSIONAL  AND  THE  PERSON'S  LICENSE, REGISTRATION OR CERTIFICATION
SHALL BE DEEMED TO BE UNDER THE APPROPRIATE ARTICLE OF  TITLE  EIGHT  OF
THE EDUCATION LAW.
  7.  MITIGATION.  THE  FOLLOWING  MAY  BE CONSIDERED IN FULL OR PARTIAL
MITIGATION OF A VIOLATION OF THIS SECTION BY  THE  HEALTH  CARE  PROFES-
SIONAL:
  (A) COMPLIANCE WITH SUBDIVISION SIX OF THIS SECTION; OR
  (B)  COOPERATION IN GOOD FAITH WITH AN INVESTIGATION OF A VIOLATION OF
THIS SECTION.
  8. APPLICABILITY. THIS SECTION SHALL APPLY  TO  CONDUCT  TAKING  PLACE
WITHIN  OR  OUTSIDE  NEW  YORK  STATE, AND WITHOUT REGARD TO WHETHER THE
CONDUCT IS COMMITTED BY A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY, OFFI-
CIAL, OR ACTOR OR UNDER ACTUAL OR ASSERTED COLOR OF LAW.
  9. SCOPE OF PRACTICE NOT EXPANDED. THIS SECTION SHALL NOT BE CONSTRUED
TO EXPAND THE LAWFUL SCOPE OF PRACTICE OF ANY HEALTH CARE PROFESSIONAL.
  S 3. Section 6509 of the education law is  amended  by  adding  a  new
subdivision 15 to read as follows:
  (15)  ANY  VIOLATION  OF SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW
(RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
  S 4. Section 6530 of the education law is  amended  by  adding  a  new
subdivision 50 to read as follows:
  50.  ANY  VIOLATION  OF  SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW
(RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.

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  S 5. Paragraphs (b) and (c) of subdivision 2 of  section  740  of  the
labor  law, as added by chapter 660 of the laws of 1984, are amended and
a new paragraph (d) is added to read as follows:
  (b)  provides  information  to,  or  testifies before, any public body
conducting an investigation, hearing or inquiry into any such  violation
of a law, rule or regulation by such employer; [or]
  (c) objects to, or refuses to participate in any such activity, policy
or practice in violation of a law, rule or regulation[.]; OR
  (D)   REPORTS   OR  THREATENS  TO  REPORT  ANY  VIOLATION  OF  SECTION
TWENTY-THREE OF THE PUBLIC HEALTH  LAW  (RELATING  TO  PARTICIPATION  IN
TORTURE  OR  IMPROPER  TREATMENT  OF  PRISONERS  BY  HEALTH CARE PROFES-
SIONALS).
  S 6. Subdivision 3 of section 740 of the labor law, as added by  chap-
ter 660 of the laws of 1984, is amended to read as follows:
  3.  Application.  The  protection against retaliatory personnel action
provided by paragraph (a) of subdivision two of this section  pertaining
to  disclosure to a public body shall not apply to an employee who makes
such disclosure to a public body unless the  employee  has  brought  the
activity,  policy or practice in violation of law, rule or regulation to
the attention of a supervisor of the  employer  and  has  afforded  such
employer  a  reasonable  opportunity to correct such activity, policy or
practice. HOWEVER, THIS SUBDIVISION SHALL NOT APPLY TO ANY REPORT  OF  A
VIOLATION  UNDER  SECTION TWENTY-THREE OF THE PUBLIC HEALTH LAW (PARTIC-
IPATION IN TORTURE OR IMPROPER TREATMENT OF  PRISONERS  BY  HEALTH  CARE
PROFESSIONALS).
  S  7.  Paragraphs  (a)  and (b) of subdivision 2 of section 741 of the
labor law, as added by chapter 24 of the laws of 2002, are amended and a
new paragraph (c) is added to read as follows:
  (a) discloses or threatens to disclose to a supervisor, or to a public
body an activity, policy or practice of the employer or agent  that  the
employee, in good faith, reasonably believes constitutes improper quali-
ty of patient care; [or]
  (b)  objects  to, or refuses to participate in any activity, policy or
practice of the employer or agent that  the  employee,  in  good  faith,
reasonably believes constitutes improper quality of patient care[.]; OR
  (C)   REPORTS   OR  THREATENS  TO  REPORT  ANY  VIOLATION  OF  SECTION
TWENTY-THREE OF THE PUBLIC  HEALTH  LAW  (PARTICIPATION  IN  TORTURE  OR
IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE PROFESSIONALS).
  S  8. Subdivision 3 of section 741 of the labor law, as added by chap-
ter 24 of the laws of 2002, is amended to read as follows:
  3. Application. The protection against  retaliatory  personnel  action
provided  by  subdivision two of this section shall not apply unless the
employee has brought the improper quality of patient care to the  atten-
tion of a supervisor and has afforded the employer a reasonable opportu-
nity  to  correct  such  activity,  policy or practice. This subdivision
shall not apply to an action or failure to act  described  in  paragraph
(a)  of  subdivision  two  of this section where the improper quality of
patient care described therein presents an  imminent  threat  to  public
health or safety or to the health of a specific patient and the employee
reasonably  believes  in good faith that reporting to a supervisor would
not result in corrective action.   HOWEVER, THIS SUBDIVISION  SHALL  NOT
APPLY  TO  ANY  REPORT  OF A VIOLATION UNDER SECTION TWENTY-THREE OF THE
PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE  OR  IMPROPER  TREATMENT  OF
PRISONERS BY HEALTH CARE PROFESSIONALS).
  S  9. The introduction or enactment of this act shall not be construed
to mean that: (a) conduct described by this act does not already violate

A. 4440                             7

state law or constitute professional misconduct; or  (b)  conduct  other
than  that  described  by  this  act does not violate other state law or
otherwise constitute professional misconduct.
  S  10.  Severability. If any provision of this act, or any application
of any provision of this act, is held to  be  invalid,  that  shall  not
affect  the validity or effectiveness of any other provision of this act
or any other application of any provision of this act.
  S 11.   This act shall take  effect  on  the  first  of  January  next
succeeding the date on which it shall have become a law.