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

  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05380-04-2
              

A. 5891--A                          2

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,
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  AND  SPECIALIST  ASSISTANTS),  ONE
HUNDRED  THIRTY-TWO  (CHIROPRACTIC), ONE HUNDRED THIRTY-THREE (DENTISTRY
AND DENTAL HYGIENE), ONE HUNDRED THIRTY-SIX (PHYSICAL THERAPY AND  PHYS-
ICAL  THERAPIST  ASSISTANTS),  ONE  HUNDRED THIRTY-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  THERAPY),  ONE HUNDRED FIFTY-SIX (OCCUPA-
TIONAL 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 LABO-
RATORY TECHNOLOGY PRACTICE ACT), OR ONE HUNDRED SIXTY-SIX (MEDICAL PHYS-
ICS PRACTICE), OR (II) ARTICLE THIRTY-FIVE OF THIS CHAPTER (PRACTICE  OF
RADIOLOGIC TECHNOLOGY).
  (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

A. 5891--A                          3

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
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).

A. 5891--A                          4

  (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
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,

A. 5891--A                          5

  (II) THE POSSIBLE PHYSICAL AND MENTAL EFFECTS OF PARTICULAR TECHNIQUES
AND CONDITIONS OF INTERROGATION, OR
  (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  OR  ONE  HUNDRED
THIRTY-ONE-B  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 PROFESSIONAL LICENSED, REGIS-
TERED  OR  CERTIFIED  UNDER  TITLE  EIGHT OF THE EDUCATION LAW, A REPORT
SHALL BE FILED WITH THE OFFICE OF PROFESSIONAL DISCIPLINE; 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 COMPA-
RABLE 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.

A. 5891--A                          6

  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. 5891--A                          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.