S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7023--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2023
                                ___________
 
 Introduced  by Sens. RIVERA, BROUK, HOYLMAN-SIGAL, KRUEGER, MYRIE, SALA-
   ZAR, SEPULVEDA -- read twice and ordered printed, and when printed  to
   be  committed to the Committee on Health -- recommitted to the Commit-
   tee on Health in accordance with Senate Rule 6, sec.  8  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 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,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02411-05-4
              

 S. 7023--A                          2
 
 shall  be  confidential  and  shall not be disclosed except as otherwise
 authorized or required by law.
   §  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 ANNUAL TRAINING OR IN-SERVICE WORKSHOPS
 ON SEXUAL MISCONDUCT AND SEXUAL HARASSMENT FOR  THE  OFFICE  OF  PROFES-
 SIONAL  MEDICAL  CONDUCT STAFF, INCLUDING INVESTIGATORS, 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, REPRESENTATIVES  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-bb
 to read as follows:
   § 2803-BB. 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
 S. 7023--A                          3
 
 CHAPERONE DURING: (1) BREAST AND PELVIC EXAMINATIONS OF FEMALES; AND (2)
 GENITALIA AND RECTAL EXAMINATIONS OF BOTH MALES AND FEMALES.
   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.  AS  USED  IN THIS SECTION, THE TERM "CHAPERONE" MEANS A PERSON WHO
 ACTS AS A WITNESS FOR A PATIENT  AND  A  HEALTH  PROFESSIONAL  DURING  A
 MEDICAL  EXAMINATION OR PROCEDURE. A CHAPERONE SHALL STAND IN A LOCATION
 WHERE THEY ARE ABLE TO ASSIST AS NEEDED  AND  OBSERVE  THE  EXAMINATION,
 THERAPY OR PROCEDURE. A CHAPERONE MAY BE A HEALTH CARE PROFESSIONAL OR A
 TRAINED  UNLICENSED  STAFF  MEMBER. THIS MAY INCLUDE MEDICAL ASSISTANTS,
 NURSES, TECHNICIANS, THERAPISTS, RESIDENTS, AND FELLOWS. WHENEVER POSSI-
 BLE, BUT NOT REQUIRED, THE  CHAPERONE  SHALL  BE  THE  GENDER  THAT  THE
 PATIENT FEELS MOST COMFORTABLE WITH.
   §  5.  Section  6530 of the education law is amended by adding two new
 subdivisions 51 and 52 to read as follows:
   51. SEXUAL IMPROPRIETY, INCLUDING BUT NOT LIMITED TO VERBAL  OR  PHYS-
 ICAL  BEHAVIOR, GESTURES, OR EXPRESSIONS THAT COULD BE REASONABLY INTER-
 PRETED AS SEXUAL, DISRESPECTFUL OF PATIENT PRIVACY, OR SEXUALLY  DEMEAN-
 ING TO A PATIENT.
   52.  PHYSICAL  SEXUAL  CONTACT  BETWEEN A LICENSEE AND PATIENT, 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.  Section  6524  of  the education law is amended by adding a new
 subdivision 6-a to read as follows:
   (6-A) FINGERPRINTS AND  CRIMINAL  HISTORY  RECORD  CHECK:  CONSENT  TO
 SUBMISSION OF FINGERPRINTS FOR PURPOSES OF CONDUCTING A CRIMINAL HISTORY
 RECORD  CHECK. THE COMMISSIONER SHALL SUBMIT TO THE DIVISION OF CRIMINAL
 JUSTICE SERVICES TWO SETS OF FINGERPRINTS OF  APPLICANTS  FOR  LICENSURE
 PURSUANT  TO THIS ARTICLE, AND THE DIVISION OF CRIMINAL JUSTICE SERVICES
 PROCESSING FEE IMPOSED PURSUANT TO SUBDIVISION EIGHT-A OF SECTION  EIGHT
 HUNDRED  THIRTY-SEVEN  OF  THE  EXECUTIVE LAW AND ANY FEE IMPOSED BY THE
 FEDERAL BUREAU  OF  INVESTIGATION.  THE  DIVISION  OF  CRIMINAL  JUSTICE
 SERVICES  AND  THE  FEDERAL  BUREAU  OF INVESTIGATION SHALL FORWARD SUCH
 CRIMINAL HISTORY RECORD TO THE COMMISSIONER IN A TIMELY MANNER. FOR  THE
 PURPOSES  OF THIS SECTION, THE TERM "CRIMINAL HISTORY RECORD" SHALL MEAN
 A RECORD OF ALL CONVICTIONS OF CRIMES AND ANY PENDING  CRIMINAL  CHARGES
 S. 7023--A                          4
 
 MAINTAINED ON AN INDIVIDUAL BY THE DIVISION OF CRIMINAL JUSTICE SERVICES
 AND  THE  FEDERAL  BUREAU  OF  INVESTIGATION.  ALL SUCH CRIMINAL HISTORY
 RECORDS SENT TO THE COMMISSIONER PURSUANT TO THIS SUBDIVISION  SHALL  BE
 CONFIDENTIAL  PURSUANT  TO  THE APPLICABLE FEDERAL AND STATE LAWS, RULES
 AND REGULATIONS, AND SHALL NOT BE PUBLISHED OR IN ANY WAY  DISCLOSED  TO
 PERSONS OTHER THAN THE COMMISSIONER, UNLESS OTHERWISE AUTHORIZED BY LAW;
   §  8.  Subdivisions 20 and 31 of section 6530 of the education law, as
 added by chapter 606 of the  laws  of  1991,  are  amended  to  read  as
 follows:
   20. Conduct [in the practice of medicine] which evidences moral unfit-
 ness to practice medicine;
   31.  Willfully  harassing, abusing, or intimidating a patient [either]
 OR A PATIENT'S CAREGIVER OR SURROGATE physically or verbally;
   § 9. 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.