S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8068
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 11, 2021
                                ___________
 
 Introduced  by  M. of A. GONZALEZ-ROJAS -- read once and referred to the
   Committee on Health
 
 AN ACT to amend the public health law and the education law, in relation
   to strengthening protections for patients regarding sexual  misconduct
   by medical providers
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subparagraph (ii) of paragraph (a)  of  subdivision  10  of
 section  230  of the public health law, as amended by chapter 558 of the
 laws of 1994, is amended to read as follows:
   (ii) If the  investigation  of  cases  referred  to  an  investigation
 committee  involves  issues of clinical practice, medical experts, shall
 be consulted. Experts may be made available by the state medical society
 of the state of New York, by  county  medical  societies  and  specialty
 societies,  and  by New York state medical associations dedicated to the
 advancement of non-conventional medical  treatments.    MEDICAL  EXPERTS
 SHALL  DISCLOSE  ANY  CONFLICTS OF INTEREST INCLUDING BUT NOT LIMITED TO
 SHARED ALMA MATER, HOMETOWN, RESIDENCE, OR RELATIONSHIPS, THAT  CONNECTS
 OR  ESTABLISHES  A  BOND BETWEEN SUCH MEDICAL EXPERT AND THE LICENSEE IN
 ORDER TO PRECLUDE ANY FAVORABLE BIAS PRIOR TO ASSISTING IN  AN  INVESTI-
 GATION.   A MEDICAL EXPERT SHALL NOT BE CONSULTED IF SUCH MEDICAL EXPERT
 IS  UNDER  INVESTIGATION,  HAS  AN  ADMINISTRATIVE  WARNING,  OR  IS  ON
 PROBATION,  AND  SUCH  MEDICAL EXPERT SHALL BE DISMISSED FROM CONSULTING
 DUTIES IF SUCH MEDICAL EXPERT BECOMES THE SUBJECT OF  AN  INVESTIGATION,
 RECEIVES  AN  ADMINISTRATIVE WARNING, OR IS PUT ON PROBATION DURING SUCH
 EXPERTS TERM  OF  CONSULTATION.  Any  information  obtained  by  medical
 experts  in consultations, including the names of licensees or patients,
 shall be confidential and shall not be  disclosed  except  as  otherwise
 authorized or required by law.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10656-04-1

              

 A. 8068                             2
 
   §  2.  Paragraph  (a)  of  subdivision 10 of section 230 of the public
 health law, as amended by chapter 866 of the laws of 1980, is amended to
 read as follows:
   (a)  Investigation.  The  board for professional medical conduct, by a
 committee on professional  conduct,  may  investigate  on  its  own  any
 suspected  professional misconduct, and shall investigate each complaint
 received regardless of the source. The results of the investigation  AND
 AN OBJECTIVE SUMMARY STATEMENT PRODUCED BY THE INVESTIGATOR ALONG WITH A
 RECOMMENDATION  shall  be  referred  to  the  director  of the office of
 professional medical conduct. If the director of the office  of  profes-
 sional medical conduct, after consultation with a professional member of
 the board for professional medical conduct, determines that a hearing is
 warranted  he shall direct counsel to prepare the charges within fifteen
 days thereafter. If it is determined by the director that the  complaint
 involves  a  question  of  professional expertise then such director may
 seek, and if so shall obtain, the concurrence of at least two members of
 a panel of three members of the state  board  for  professional  medical
 conduct.
   §  3.  Section 230 of the public health law is amended by adding a new
 subdivision 6-a to read as follows:
   6-A. (A) THE BOARD SHALL ADOPT  A  ZERO-TOLERANCE  POLICY  FOR  SEXUAL
 MISCONDUCT  AND THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT SHALL PUBLISH
 SUCH POLICY AND MAKE IT PUBLICLY AVAILABLE ON ITS WEBSITE.  SUCH  POLICY
 SHALL  INCLUDE  A  STATEMENT THAT A PATIENT CANNOT CONSENT TO ANY SEXUAL
 CONDUCT OR ACTIVITY WITH SUCH PATIENT'S TREATING PHYSICIAN.
   (B) THE BOARD SHALL INSTITUTE SEMI-ANNUAL TRAINING OR IN-SERVICE WORK-
 SHOPS ON SEXUAL MISCONDUCT AND  SEXUAL  HARASSMENT  FOR  THE  OFFICE  OF
 PROFESSIONAL  MEDICAL  CONDUCT  STAFF,  INCLUDING INVESTIGATORS, MEDICAL
 EXPERTS, THE DIVISION OF LEGAL AFFAIRS, AND THE BOARD. THE  BOARD  SHALL
 PROVIDE  COMPREHENSIVE ORIENTATION AND TRAINING ON SEXUAL MISCONDUCT AND
 SEXUAL HARASSMENT ISSUES UTILIZING EXPERT SPEAKERS,  PHYSICIANS,  REPRE-
 SENTATIVES  FROM THE OFFICE OF THE ATTORNEY GENERAL, CRISIS INTERVENTION
 CENTERS, AND RELATED COMMUNITY PROGRAMS.
   § 4. The public health law is amended by adding a new section  2803-aa
 to read as follows:
   § 2803-AA. PROTECTION OF PATIENTS FROM SEXUAL MISCONDUCT. 1. THE PRIN-
 CIPLES  ENUNCIATED  IN SUBDIVISION THREE OF THIS SECTION ARE DECLARED TO
 BE THE PUBLIC POLICY OF THE STATE AND A COPY OF SUCH STATEMENT OF RIGHTS
 AND RESPONSIBILITIES SHALL BE POSTED CONSPICUOUSLY IN A PUBLIC PLACE  IN
 EACH HOSPITAL COVERED HEREUNDER.
   2.  THE  COMMISSIONER SHALL REQUIRE THAT EVERY HOSPITAL, AS DEFINED IN
 SUBDIVISION ONE OF SECTION TWENTY-EIGHT HUNDRED  ONE  OF  THIS  ARTICLE,
 SHALL  ADOPT  AND MAKE PUBLIC A STATEMENT OF THE RIGHTS AND RESPONSIBIL-
 ITIES REGARDING PROTECTION OF THE PATIENTS FROM  SEXUAL  MISCONDUCT  WHO
 ARE  RECEIVING  CARE IN SUCH HOSPITALS, AND SHALL TREAT SUCH PATIENTS IN
 ACCORDANCE WITH THE PROVISIONS OF SUCH STATEMENT.
   3. SAID STATEMENT OF RIGHTS AND RESPONSIBILITIES REGARDING  PROTECTION
 FROM  SEXUAL MISCONDUCT SHALL INCLUDE, BUT NOT BE LIMITED TO THE FOLLOW-
 ING:
   A. EVERY PATIENT SHALL HAVE THE RIGHT TO REQUEST  THE  PRESENCE  OF  A
 FAMILY MEMBER OR THIRD-PARTY CHAPERONE DURING A PHYSICAL EXAMINATION.
   B.  EVERY  PATIENT SHALL HAVE THE RIGHT TO RECEIVE A WRITTEN STATEMENT
 OF THE RIGHT TO REQUEST THE PRESENCE OF A FAMILY MEMBER  OR  THIRD-PARTY
 CHAPERONE DURING: (1) BREAST AND PELVIC EXAMINATIONS OF FEMALES; AND (2)
 GENITALIA AND RECTAL EXAMINATIONS OF BOTH MALES AND FEMALES.

 A. 8068                             3
 
   4. EACH HOSPITAL SHALL GIVE A COPY OF THE STATEMENT TO EACH PATIENT AT
 OR  PRIOR  TO THE TIME OF ADMISSION TO THE HOSPITAL, OR TO THE APPOINTED
 PERSONAL REPRESENTATIVE AT THE TIME OF APPOINTMENT. SUCH STATEMENT SHALL
 BE PROVIDED IN A DOCUMENT IN ADDITION TO, AND SEPARATE FROM,  ANY  OTHER
 STATEMENT  OF  RIGHTS  AND  RESPONSIBILITIES  REQUIRED  PURSUANT  TO THE
 PROVISIONS OF THIS CHAPTER.  UPON ACKNOWLEDGMENT OF THE STATEMENT BY THE
 PATIENT, AN ACCEPTANCE OR DECLINATION OF THE  PRESENCE  OF  A  CHAPERONE
 SHALL BE NOTED IN SUCH PATIENT'S CHART.
   §  5.  Section  6530  of  the education law is amended by adding a new
 subdivision 51 to read as follows:
   51.  SEXUAL  IMPROPRIETY,  INCLUDING  BUT  NOT  LIMITED  TO  BEHAVIOR,
 GESTURES,  OR EXPRESSIONS THAT ARE SEXUALLY SUGGESTIVE, DISRESPECTFUL OF
 PATIENT PRIVACY, OR SEXUALLY DEMEANING TO  A  PATIENT,  PHYSICAL  SEXUAL
 CONTACT BETWEEN A LICENSEE AND PATIENT OR ENGAGING IN ANY CONDUCT WITH A
 PATIENT  THAT  IS  SEXUAL OR MAY BE REASONABLY INTERPRETED AS SEXUAL, OR
 ANY EXAMINATION OF THE BREASTS OR GENITALS WITHOUT  APPROPRIATE  CONSENT
 FROM A PATIENT OR SURROGATE.
   §  6.  The  education law is amended by adding a new section 6523-a to
 read as follows:
   § 6523-A. ADDITIONAL DUTIES OF THE STATE BOARD FOR MEDICINE. IN  ADDI-
 TION TO ANY OTHER DUTIES OF THE STATE BOARD FOR MEDICINE PROVIDED FOR IN
 LAW,  SUCH  BOARD SHALL QUERY INFORMATION FROM THE UNITED STATES DEPART-
 MENT OF HEALTH AND HUMAN SERVICES NATIONAL PRACTITIONER DATA  BANK  UPON
 AN  INITIAL  REQUEST  FOR  LICENSURE BY AN APPLICANT PURSUANT TO SECTION
 SIXTY-FIVE HUNDRED TWENTY-FOUR OF THIS ARTICLE. IF  SUCH  QUERY  RETURNS
 ANY  INSTANCE  OF  PROFESSIONAL  MISCONDUCT  BY THE APPLICANT, THE BOARD
 SHALL CONSIDER BOTH THE SEVERITY OF THE MISCONDUCT ALONE AND IN RELATION
 TO THE PROBABILITY OF SUCH  MISCONDUCT  RECURRING  UPON  LICENSURE  WHEN
 DETERMINING  WHETHER  AN  APPLICATION  FOR  LICENSURE SHALL BE DENIED OR
 WHETHER TO GRANT THE APPLICANT A  HEARING  REGARDING  SUCH  INSTANCE  OF
 PROFESSIONAL MISCONDUCT.
   §  7.  This  act shall take effect on the ninetieth day after it shall
 have become a law provided, however, that the  amendments  to  paragraph
 (a)  of  subdivision  10 of section 230 of the public health law made by
 section one of this act shall be subject to the expiration and reversion
 of such paragraph pursuant to section 5 of chapter 426 of  the  laws  of
 1983,  as  amended, when upon such date the provisions of section two of
 this act shall take effect. Effective immediately, the addition,  amend-
 ment  and/or  repeal of any rule or regulation necessary  for the imple-
 mentation of this act on its effective date are authorized and  directed
 to be made and completed on or before such effective date.