A01190 Summary:

BILL NOA01190B
 
SAME ASSAME AS S03696-B
 
SPONSORBraunstein
 
COSPNSRSkoufis, Mosley, Jaffee, Miller MG, Brindisi, Arroyo, Hooper, Gottfried, Zebrowski, Cook, Montesano, Finch, Seawright, Friend, Jenne, Galef, Hevesi, Weprin, Castorina, Sepulveda
 
MLTSPNSRHikind, McDonough, Palmesano, Peoples-Stokes, Schimminger, Simon, Titone
 
Add 2806-c, Pub Health L; amd 50-c, Civ Rts L
 
Relates to requiring a medical facility or related services to obtain express prior written consent before filming and/or broadcasting of visual images of a patient's medical treatment.
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A01190 Actions:

BILL NOA01190B
 
01/11/2017referred to health
05/16/2017reported referred to codes
06/14/2017reported referred to rules
06/15/2017reported
06/15/2017rules report cal.368
06/15/2017ordered to third reading rules cal.368
06/15/2017amended on third reading 1190a
01/03/2018ordered to third reading cal.80
06/11/2018amended on third reading 1190b
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A01190 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1190B
 
SPONSOR: Braunstein (MS)
  TITLE OF BILL: An act to amend the public health law and the civil rights law, in relation to prohibiting the making and/or broadcasting of visual images of individuals undergoing medical treatment without prior written consent   PURPOSE OR GENERAL IDEA OF BILL: To protect patients undergoing treatment from having images or speech broadcast without consent.   SUMMARY OF SPECIFIC PROVISIONS: Section 1. Adds a new section 2806-c to the Public Health Law. Section 2806-c (1) provides that every patient in a health care facility shall have the right to privacy in treatment, which includes the broad- casting of a patient's image or speech. This section also offers an exception when such broadcast is for the specific purposes of advancing the health care treatment of the individual, a quality assurance program, the education or training of health care personnel, or neces- sary security purposes. 2806-c (2) provides an explanation of "privacy in treatment." Privacy in treatment entails that the health care facility must obtain express written consent on a separate document used solely for the purpose of the consent to broadcasting, from the individual receiving treatment, obtained before broadcasting the image or voice of the patient in treat- ment. When the broadcast is for the purpose of education or training of health care personnel, the patient must be informed of and has the right to refuse the making or broadcasting for that purpose. If the patient cannot reasonably do so due to incapacity, a person who is legally authorized to make health care decisions for the patient or otherwise authorized to consent may grant such consent or exercise such refusal. 2806-c (3) provides definitions. "Health care facility" means a residen- tial health care facility, general hospital, free-standing ambulatory care facility, diagnostic and/or treatment center and clinic authorized under this article, or ambulance service as defined by subdivision two of section 3001 of the Public Health Law or voluntary ambulance service, as defined by subdivision three of section 3001 of the PHL. "Quality assurance" is defined as any evaluation of services provided in or by a health care facility for the purposes of improvement in safety, quality, or outcomes. "Education or training of health care personnel" shall mean a program of education or training of health care personnel or students being educated or training to be health care personnel, and which the health care facility has authorized. "Broadcasting a visual image" is defined as the transmission by one of several methods, including by broadcast, cable, closed circuit, Inter- net, TV or other visual medium, social media, or other system by which it can be viewed in violation of the privacy rights and expectations of a patient. 2806-c (4) states that nothing in this section shall diminish or impair any right or remedy otherwise applicable to any patient. Section 2. Amends section 50-c of the Civil Rights Law. Adds a private right of action for a violation of Section 2806-c of the Public Health Law regarding the right to have privacy in treatment and in caring for personal needs, including the broadcasting of an image or voice of a patient undergoing treatment. This section also provides that the indi- vidual or his or her estate representative may bring an action for damages, and the cause of action shall survive the death of the individ- ual. Section 3. Sets forth the effective date. Section 4: Nothing in this section shall diminish or impair any right or remedy otherwise applicable to any patient.   JUSTIFICATION: Under the federal HIPAA law, a patient's private health information is not to be shared, with the exception of those designated by the patient. As such, hospitals and doctors have imposed many rules that are intended to protect patient privacy. Despite this, a reality medical television show on ABC, "NY Med", broadcast intimate details of a patient's health at NewYork-Presbyterian Hospital/Weill Cornell Medical Center. One patient, Mark Chanko, passed away during the course of the filming after he was hit by a sanitation truck. Mr. Chanko's widow, Anita, was already watching an episode of NY Med when a new segment of the show started. As it progressed, she realized that the patient that was being shown, despite the face being blurred out, was Mark. She heard her husband asking for her while in his hospital bed, and saw his eventual death on her television. Mrs. Chanko became incredibly distraught after having to relive the most horrifying experience of her life. The hospi- tal and NY Med did not seek permission from either Mark or his family before commencing the filming, or even before the show was broadcast. Patients have an expectation and a right to privacy when being treated in a medical facility. To broadcast this treatment without permission is an outrageous violation of their rights to privacy as a patient. Viewing the medical treatment, including the death, of a close family member, is traumatic for those who have gone through such a disturbing experience. Therefore, seeking permission from patients or those who are their power of attorney, health care proxy, or next of kin will prevent patients and their families from being subject to additional suffering.   PRIOR LEGISLATIVE HISTORY: 2015-2016: A.5161-D/S.4622-C - Ordered to Third Reading Rules Cal. 436.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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A01190 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1190--B
                                                                 Cal. No. 80
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 11, 2017
                                       ___________
 
        Introduced  by M. of A. BRAUNSTEIN, SKOUFIS, MOSLEY, JAFFEE, M. G. MILL-
          ER, BRINDISI, ARROYO, HOOPER, GOTTFRIED, ZEBROWSKI,  COOK,  MONTESANO,
          FINCH,  SEAWRIGHT,  FRIEND, JENNE, GALEF, HEVESI, WEPRIN, CASTORINA --
          Multi-Sponsored by -- M. of A. HIKIND, McDONOUGH, PALMESANO,  PEOPLES-
          STOKES,  SCHIMMINGER,  SIMON,  TITONE -- read once and referred to the
          Committee on Health -- reported and referred to the Committee on Codes
          -- reported and referred to the Committee on Rules -- amended  on  the
          special  order of third reading, ordered reprinted as amended, retain-
          ing its place on the special order of third reading --  ordered  to  a
          third  reading,  amended and ordered reprinted, retaining its place on
          the order of third reading
 
        AN ACT to amend the public health law  and  the  civil  rights  law,  in
          relation  to  prohibiting  the  making  and/or  broadcasting of visual
          images of individuals undergoing medical treatment without prior writ-
          ten consent
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The  public health law is amended by adding a new section
     2  2806-c to read as follows:
     3    § 2806-c. Restrictions on broadcasting of patients. 1.  Every  patient
     4  in a health care facility shall have the right to have privacy in treat-
     5  ment and in caring for personal needs, including the broadcasting of the
     6  recognizable  image  or speech of such patient involved in a health care
     7  procedure in such facility, with  the  exception  of  broadcasting  such
     8  image  or speech for the purposes of advancing the health care treatment
     9  of the individual, a quality assurance program, the education or  train-
    10  ing of health care personnel, or necessary security purposes.
    11    2. Such privacy in treatment shall include the obtaining by the health
    12  care  facility  of  express  written consent on a separate document used
    13  solely for such purpose from an individual receiving treatment  in  such
    14  facility  prior to broadcasting the recognizable image or speech of such
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01750-09-8

        A. 1190--B                          2
 
     1  patient involved in such treatment. In  the  case  of  broadcasting  the
     2  recognizable  image  or  speech for education or training of health care
     3  personnel, the patient shall have the right to know of  and  shall  have
     4  the  right to refuse the broadcasting for that purpose. A person legally
     5  authorized to make health care decisions for the  patient  or  otherwise
     6  authorized to consent may grant such consent or exercise such refusal if
     7  the patient cannot reasonably do so due to such patient's incapacity.
     8    3. For the purposes of this section:
     9    (a) "health care facility" shall mean a residential health care facil-
    10  ity,  general hospital, free-standing ambulatory care facility, diagnos-
    11  tic and/or treatment center and clinic authorized under this article, or
    12  ambulance operated by an ambulance service as defined by subdivision two
    13  of section three thousand one of this chapter or by  a  voluntary  ambu-
    14  lance  service as defined by subdivision three of section three thousand
    15  one of this chapter;
    16    (b) "quality assurance" shall mean any evaluation of services provided
    17  in or by a health care facility for purposes of improvement  in  safety,
    18  quality or outcomes;
    19    (c)  "education  or  training  of  health care personnel" shall mean a
    20  program of education or training of health care  personnel  or  students
    21  being  educated  or trained to be health care personnel, that the health
    22  care facility has authorized;
    23    (d) "broadcasting" of an image or speech shall  mean  transmission  by
    24  broadcast, cable, closed circuit, internet or other television or visual
    25  medium,  social  media,  or  other  system  by which it can be viewed in
    26  violation of the privacy rights and expectations of a patient.  Provided
    27  however, that broadcasting shall not include incidental transmission  of
    28  the  image  or  speech  of  an  individual being treated, transported or
    29  otherwise cared for or attended to by an ambulance service as defined in
    30  subdivision two of section three thousand one of this chapter  or  by  a
    31  voluntary  ambulance  service as defined in subdivision three of section
    32  three thousand one of this chapter,  at  an  ambulance  response  scene,
    33  public  area  or during delivery or admission to a health care facility,
    34  that is captured by news media, bystanders or others who do not have the
    35  written  consent  of  such  ambulance  service  or  voluntary  ambulance
    36  service.
    37    4. Nothing in this section shall diminish or impair any right or reme-
    38  dy otherwise applicable to any patient.
    39    §  2.  Section 50-c of the civil rights law, as amended by chapter 643
    40  of the laws of 1999, is amended to read as follows:
    41    § 50-c. Private right of action.  1. If the identity of the victim  of
    42  an offense defined in subdivision one of section fifty-b of this article
    43  is  disclosed  in  violation of such section, any person injured by such
    44  disclosure may bring an action to recover damages suffered by reason  of
    45  such  wrongful disclosure. In any action brought under this section, the
    46  court may award reasonable [attorney's] attorneys' fees to a  prevailing
    47  plaintiff.
    48    2.  If the privacy of an individual as defined in section twenty-eight
    49  hundred six-c of the public health  law  regarding  the  right  to  have
    50  privacy  in  treatment  and  in caring for personal needs, including the
    51  broadcasting of the recognizable image or speech of a  patient  involved
    52  in  a  health  care procedure in such a facility has been violated, such
    53  individual or his or her estate representative may bring  an  action  to
    54  recover  damages  suffered  by  reason  of such violation. In any action
    55  brought under this section, the court may  award  reasonable  attorneys'

        A. 1190--B                          3
 
     1  fees to a prevailing plaintiff. The cause of action created herein shall
     2  survive the death of such individual.
     3    3. Nothing in this section shall diminish or impair any right or reme-
     4  dy otherwise applicable to any patient.
     5    § 3. This act shall take effect immediately.
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A01190 LFIN:

 NO LFIN
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