Senate Bill S7456

Signed By Governor

2011-2012 Legislative Session

Relates to sexual offenses by health care or mental health care providers; requires certain officers to report certain sex offenses to law enforcement

download bill text pdf

Archive: Last Bill Status Via A10336 - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 01, 2012	signed chap.365
Jul 20, 2012	delivered to governor
Jun 21, 2012	returned to assembly passed senate 3rd reading cal.1479 substituted for s7456b
Jun 21, 2012	substituted by a10336b ordered to third reading cal.1479 committee discharged and committed to rules
Jun 12, 2012	print number 7456b
Jun 12, 2012	amend and recommit to codes
Jun 06, 2012	print number 7456a
Jun 06, 2012	amend (t) and recommit to codes
May 22, 2012	referred to codes

Votes

- Jun 21, 2012 - Floor Vote
  A10336
  
  Aye
  
  60
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  2
  
  Abstained
  
  0
  - - Floor Vote: Jun 21, 2012
      
      aye (60)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Avella
      
      Ball
      
      Bonacic
      
      Breslin
      
      Carlucci
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Duane
      
      Farley
      
      Flanagan
      
      Fuschillo
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Grisanti
      
      Hannon
      
      Hassell-Thompson
      
      Johnson
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Libous
      
      Little
      
      Marcellino
      
      Martins
      
      Maziarz
      
      McDonald
      
      Montgomery
      
      Nozzolio
      
      O'Mara
      
      Oppenheimer
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Serrano
      
      Seward
      
      Skelos
      
      Smith
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Storobin
      
      Valesky
      
      Young
      
      Zeldin
      
      excused (2)
      
      Espaillat
      
      Huntley
  Jun 21, 2012 - Rules Committee Vote
  S7456
  
  Aye
  
  23
  
  Nay
  
  0
  
  Aye with Reservations
  
  2
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  
  0
  - - Rules Committee Vote: Jun 21, 2012
      
      aye (23)
      
      Alesi
      
      Breslin
      
      Dilan
      
      Farley
      
      Fuschillo
      
      Hannon
      
      Hassell-Thompson
      
      Johnson
      
      Krueger
      
      LaValle
      
      Larkin
      
      Libous
      
      Marcellino
      
      Maziarz
      
      Nozzolio
      
      Parker
      
      Perkins
      
      Saland
      
      Sampson
      
      Seward
      
      Skelos
      
      Smith
      
      Stewart-Cousins
      
      aye wr (2)
      
      Duane
      
      Montgomery

Bill Amendments

2011-S7456 - Details

Law Section:: Penal Law
Laws Affected:: Amd §130.05, Pen L; amd §6510, Ed L

2011-S7456 - Summary

Relates to sexual offenses by health care or mental health care providers; requires the professional conduct officer designated to investigate a complaint of professional misconduct to report certain sex offenses to the appropriate law enforcement official or authority.

2011-S7456 - Sponsor Memo

                                BILL NUMBER:S7456

TITLE OF BILL:
An act to amend the penal law, in relation to the sexual offenses by
health care or mental health care providers; and 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 clarifies that a client or patient of a health care or mental
health care provider is incapable of consent to a sexual act where the
sexual conduct occurs during the course of treatment. The bill also
establishes the obligation of the professional conduct officer or state
board for the profession designated to investigate a complaint of a
licensee's professional misconduct or the office of professional disci-
pline to notify law enforcement if it determines that there is a reason-
able belief that an act or omission that constitutes a crime under state
or federal law has been committed by the licensee. This reporting obli-
gation mirrors the reporting obligation of the board for professional
medical conduct or the office of professional medical conduct under such
circumstances.

JUSTIFICATION:
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, inter-
view 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 (OPD), 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 psychoth-
erapist 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.

This legislation will address this anomaly in the law as well as clarify
that sexual conduct by the health care or mental health care provider
during the course of treatment, even if it does not occur within the
strict time boundaries of a particular session, constitutes criminal
sexual conduct.

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 paragraph (h) of subdivision 3 of section 130.05 of
the penal law, as amended by chapter 264 of the laws of2003, to provide
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 consultation, interview, examination or course
of treatment.

Section two 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 or applicable state board for the profession 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 or omission that constitutes a crime under the law of
the State of New York, any other state, or the United Sates has been
committed by the licensee, such professional conduct officer, applicable
state board for the profession or the office of professional discipline
shall notify the appropriate law enforcement official or authority.

Section three provides the effective date.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None to the State.

EFFECTIVE DATE:
Immediate.

2011-S7456 - Bill Text download pdf

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

                                  7456

                            I N  S E N A T E

                              May 22, 2012
                               ___________

Introduced  by  Sen.  SALAND -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in relation to  the  sexual  offenses  by
  health  care  or mental health care providers; and to amend the educa-
  tion law, in relation to the duties of the professional conduct  offi-
  cer,  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

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

  Section 1. Paragraph (h) of subdivision 3 of  section  130.05  of  the
penal  law, as amended by chapter 264 of the laws of 2003, is amended to
read as follows:
  (h) a client or patient and the actor is a  health  care  provider  or
mental  health  care  provider  charged with rape in the third degree as
defined in section 130.25, criminal sexual act in the  third  degree  as
defined  in section 130.40, aggravated sexual abuse in the fourth degree
as defined in section 130.65-a, or sexual abuse in the third  degree  as
defined in section 130.55, and the act of sexual conduct occurs during a
[treatment session,] consultation, interview, [or] examination OR COURSE
OF TREATMENT.
  S  2.  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  APPLICABLE
STATE  BOARD FOR THE PROFESSION 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 OR
OMISSION THAT CONSTITUTES A CRIME UNDER THE LAW  OF  THE  STATE  OF  NEW
YORK,  ANY  OTHER  STATE, OR THE UNITED STATES HAS BEEN COMMITTED BY THE
LICENSEE THE PROFESSIONAL CONDUCT OFFICER, APPLICABLE  STATE  BOARD  FOR
THE  PROFESSION,  OR  THE OFFICE OF PROFESSIONAL DISCIPLINE SHALL NOTIFY
THE APPROPRIATE LAW ENFORCEMENT OFFICIAL OR AUTHORITY.
  S 3. This act shall take effect immediately.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15950-02-2

2011-S7456A - Details

Law Section:: Penal Law
Laws Affected:: Amd §130.05, Pen L; amd §6510, Ed L

2011-S7456A - Summary

2011-S7456A - Sponsor Memo

                                BILL NUMBER:S7456A

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:
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 (OPD), 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
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.

2011-S7456A - Bill Text download pdf

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

                                 7456--A

                            I N  S E N A T E

                              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

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 A  LICENSEE'S  PROFES-
SIONAL  MISCONDUCT  DETERMINES THAT THERE IS A REASONABLE BELIEF THAT AN
ACT THAT CONSTITUTES A SEX OFFENSE AS DEFINED  IN  ARTICLE  ONE  HUNDRED
THIRTY  OF THE PENAL LAW HAS BEEN COMMITTED BY THE LICENSEE, THE PROFES-
SIONAL 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.
                                                           LBD15950-04-2

co-Sponsors

2011-S7456B (ACTIVE) - Details

Law Section:: Penal Law
Laws Affected:: Amd §130.05, Pen L; amd §6510, Ed L

2011-S7456B (ACTIVE) - Summary

2011-S7456B (ACTIVE) - Sponsor Memo

                                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.

2011-S7456B (ACTIVE) - Bill Text download pdf

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

                                 7456--B

                            I N  S E N A T E

                              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

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Senate Bill S7456

Signed By Governor

Sponsored By

Archive: Last Bill Status Via A10336 - Signed by Governor

Actions

Votes

Jun 21, 2012 - Floor Vote

Floor Vote: Jun 21, 2012

Jun 21, 2012 - Rules Committee Vote

Rules Committee Vote: Jun 21, 2012

Bill Amendments

2011-S7456 - Details

2011-S7456 - Summary

2011-S7456 - Sponsor Memo

2011-S7456 - Bill Text download pdf

2011-S7456A - Details

2011-S7456A - Summary

2011-S7456A - Sponsor Memo

2011-S7456A - Bill Text download pdf

co-Sponsors

2011-S7456B (ACTIVE) - Details

2011-S7456B (ACTIVE) - Summary

2011-S7456B (ACTIVE) - Sponsor Memo

2011-S7456B (ACTIVE) - Bill Text download pdf

Comments

Do you support this bill?

Get Status Alerts for 2011-S7456

Senate Bill S7456

Signed By Governor

Share this bill

Sponsored By

Stephen M. Saland

Archive: Last Bill Status Via A10336 - Signed by Governor

Actions

Votes

Bill Amendments

2011-S7456 - Details

2011-S7456 - Summary

2011-S7456 - Sponsor Memo

2011-S7456 - Bill Text download pdf

2011-S7456A - Details

2011-S7456A - Summary

2011-S7456A - Sponsor Memo

2011-S7456A - Bill Text download pdf

co-Sponsors

Patrick M. Gallivan

2011-S7456B (ACTIVE) - Details

2011-S7456B (ACTIVE) - Summary

2011-S7456B (ACTIVE) - Sponsor Memo

2011-S7456B (ACTIVE) - Bill Text download pdf

Comments