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S00597 Summary:

BILL NOS00597
 
SAME ASSAME AS A06350
 
SPONSORMAY
 
COSPNSR
 
MLTSPNSR
 
Add Art 28-F §§2900 - 2900-i, §2808-e, Pub Health L
 
Enacts the "New York state nursing home virtual visitation act".
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S00597 Actions:

BILL NOS00597
 
01/06/2021REFERRED TO HEALTH
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S00597 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           597
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  Sen.  MAY  --  read  twice and ordered printed, and when
          printed to be committed to the Committee on Health
 
        AN ACT to amend the public health law, in relation to enacting the  "New
          York state nursing home virtual visitation act"

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Short title. This act shall be known and may  be  cited  as
     2  the "New York state nursing home virtual visitation act".
     3    §  2. The public health law is amended by adding a new article 28-F to
     4  read as follows:
     5                                ARTICLE 28-F
     6           VIRTUAL VISITATION AND MONITORING OF NURSING HOME CARE
     7  Section 2900. Definitions.
     8          2900-a. Monitoring device; authorization and use.
     9          2900-b. Monitoring device option; installation; consent of resi-
    10                    dents in shared rooms; accommodation by nursing home.
    11          2900-c. Consent; waiver.
    12          2900-d. Authorization form; content.
    13          2900-e. Immunity; unauthorized use.
    14          2900-f. Prohibited acts; civil and criminal penalties.
    15          2900-g. Public notice; signage of electronic monitoring device.
    16          2900-h. Reporting abuse and neglect.
    17          2900-i. Administrative rulemaking.
    18    § 2900. Definitions. As used in this article, the term:
    19    1. (a) "Monitoring device" means:
    20    (i) a surveillance instrument that transmits and records activity  and
    21  is not connected to the nursing home's computer network; and
    22    (ii)  a computer, tablet, phone, smart display or any other electronic
    23  device that can be used for video conferencing.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04792-01-1

        S. 597                              2
 
     1    (b) The term "monitoring device"  shall  not  include  a  camera  that
     2  records still images exclusively.
     3    2.  "Video conferencing" means the use of a computer network, platform
     4  or app to provide a live, visual connection between two or  more  people
     5  residing in separate locations for the purpose of communication.
     6    3. "Nursing home" shall have the same meaning as set forth in subdivi-
     7  sion two of section twenty-eight hundred one of this chapter.
     8    4.  "Ombudsman"  means  the state long-term care ombudsman established
     9  within the office for the aging pursuant to subdivision two  of  section
    10  two hundred eighteen on the elder law.
    11    5. "Resident" means a person who is a resident of a nursing home.
    12    6.  "Legal  representative"  means  a  legal  guardian  or  a  legally
    13  appointed substitute decision-maker who is authorized to act  on  behalf
    14  of a nursing home resident.
    15    §  2900-a. Monitoring device; authorization and use. 1. A resident who
    16  has the capacity to consent, as determined by the department pursuant to
    17  this article, or his or  her  legal  representative  may  authorize  the
    18  installation  and use of a monitoring device in a nursing home if all of
    19  the following conditions are met:
    20    (a) The resident or his or her legal representative  gives  notice  of
    21  the installation to the nursing home.
    22    (b) If the monitoring device records activity visually, the recordings
    23  made by the device include a record of the date and time.
    24    (c)  The resident pays for the monitoring device and all installation,
    25  operation, maintenance, and removal costs associated with the device.
    26    (d) Each resident occupying the same room  who  has  the  capacity  to
    27  consent,  as  determined  by the department pursuant to this article, or
    28  that resident's legal representative,  gives  written  consent  for  the
    29  installation of the monitoring device.
    30    2. If the structure of the resident's room must be altered in order to
    31  accommodate  a monitoring device, then the renovation to the room may be
    32  done only by a licensed contractor, subject to approval by  the  nursing
    33  home.
    34    3.  Any  monitoring device installed in accordance with the provisions
    35  of this article shall be in compliance with the National Fire Protection
    36  Association Life Safety regulations.
    37    § 2900-b. Monitoring device option; installation; consent of residents
    38  in shared rooms; accommodation by nursing home. 1. (a) At the time of  a
    39  person's  admission to a nursing home, the nursing home shall notify the
    40  person of his or her right to have a monitoring device installed in  his
    41  or  her room, and shall offer the person the option to have a monitoring
    42  device. The resident or his or her roommate may exercise  the  right  to
    43  install or remove a monitoring device at any time during which he or she
    44  resides in the nursing home. The nursing home shall keep a record of the
    45  person's authorization or choice not to have a monitoring device.
    46    (b)  The  nursing home shall make the record provided for in paragraph
    47  (a) of this subdivision accessible to the ombudsman.
    48    2. (a) If a resident who is residing in a shared room wishes to have a
    49  monitoring device installed in the room and another resident  living  in
    50  or moving into the same shared room refuses to consent to the use of the
    51  monitoring device, then the nursing home shall make a reasonable attempt
    52  to  accommodate  the  resident  who wishes to have the monitoring device
    53  installed. A nursing home shall be deemed to have met this accommodation
    54  requirement when, upon notification that a roommate has not consented to
    55  the use of an electronic monitoring device in his or her room, the nurs-

        S. 597                              3
 
     1  ing home offers to move either resident to another shared room  that  is
     2  available at the time of the request.
     3    (b)  If  a  resident  chooses  to reside in a private room in order to
     4  accommodate the use of an electronic  monitoring  device,  the  resident
     5  shall pay the private room rate. If a nursing home is unable to accommo-
     6  date  a resident due to lack of space, the nursing home shall reevaluate
     7  the request  at  least  once  every  two  weeks  until  the  request  is
     8  fulfilled.
     9    3.  After  authorization,  consent, and notice in accordance with this
    10  article, a resident or his or  her  legal  representative  may  install,
    11  operate,  and  maintain,  at  the  expense of the resident, a monitoring
    12  device in the room of the resident.
    13    4. The nursing home shall cooperate to accommodate the installation of
    14  the monitoring device unless doing so would place undue  burden  on  the
    15  nursing home.
    16    5.  The monitoring device shall be in a fixed, stationary position and
    17  shall monitor only  the  resident  who  consents  either  personally  or
    18  through his or her legal representative to be monitored.
    19    § 2900-c. Consent; waiver. 1. Consent to the authorization for instal-
    20  lation  and use of a monitoring device may be given only by the resident
    21  or his or her legal representative.
    22    2. Consent to the authorization for installation and use of a monitor-
    23  ing device shall include a release of liability for the nursing home for
    24  a violation of the resident's right to privacy insofar as the use of the
    25  monitoring device is concerned.
    26    3. A resident or his or her legal representative may reverse a  choice
    27  to  have  or not have a monitoring device installed and used at any time
    28  after notice of such reversal has been made to the nursing home, and  to
    29  the ombudsman, upon a form prescribed by the department.
    30    §  2900-d. Authorization form; content. The form for the authorization
    31  of installation and use of a monitoring device shall provide for all  of
    32  the following:
    33    1.  Consent of the resident or his or her legal representative author-
    34  izing the installation and use of the monitoring device.
    35    2. Notice to the nursing home of  the  resident's  installation  of  a
    36  monitoring device and specifics as to the type, function, and use of the
    37  device.
    38    3.  Consent of any other resident sharing the same room, or that resi-
    39  dent's legal representative, to the installation and use of a monitoring
    40  device.
    41    4. Notice of release from liability for violation of  privacy  through
    42  the use of the monitoring device.
    43    5.  Waiver  of  the resident's right to privacy in connection with the
    44  use of the monitoring device.
    45    § 2900-e. Immunity; unauthorized use. 1. In any civil action against a
    46  nursing home, material obtained through the use of a  monitoring  device
    47  shall  not be used if the device was installed or used without the know-
    48  ledge of the nursing home, or installed or used without  the  prescribed
    49  form.
    50    2.  Compliance with the provisions of this article shall be a complete
    51  defense to any civil or criminal action brought  against  the  resident,
    52  legal representative, or nursing home for the use or presence of a moni-
    53  toring device.
    54    §  2900-f.  Prohibited  acts;  civil and criminal penalties. 1. (a) No
    55  nursing home shall deny a person or resident admission to  or  discharge
    56  from  a  nursing  home, or otherwise discriminate or retaliate against a

        S. 597                              4
 
     1  person or resident, because the person or resident chooses to  authorize
     2  installation and use of a monitoring device.
     3    (b)  Any  person who knowingly or willfully violates the provisions of
     4  paragraph (a) of this subdivision shall be subject to appropriate action
     5  by the department as set forth  in  rules  and  regulations  promulgated
     6  pursuant to this article.
     7    2.  (a)  Except  as  provided in paragraph (b) of this subdivision, no
     8  person shall intentionally hamper, obstruct, tamper with, or  destroy  a
     9  monitoring  device  or a recording made by a monitoring device installed
    10  in a nursing home pursuant to this article.
    11    (b) The prohibition and penalties provided in this  subdivision  shall
    12  not  apply  to the resident who owns the monitoring device or recording,
    13  or to his or her legal representative.
    14    § 2900-g. Public notice; signage of electronic monitoring  device.  1.
    15  If  a  resident of a nursing home conducts electronic monitoring, a sign
    16  shall be clearly and conspicuously posted at the main  entrance  of  the
    17  nursing  home  building to alert and inform visitors.  The sign shall be
    18  in a large, clearly legible type and font and bear the words "Electronic
    19  Monitoring" and shall further state in equally  legible  type  and  font
    20  "The  rooms of some residents may be equipped with electronic monitoring
    21  devices installed by or on behalf of the resident."
    22    2. A sign shall be clearly and conspicuously posted at the entrance of
    23  a resident's  room  where  authorized  electronic  monitoring  is  being
    24  conducted. The sign shall be in large, clearly legible type and font and
    25  bear the words "This room is electronically monitored."
    26    3.  The  nursing  home  shall  be  responsible for reasonable costs of
    27  installation and maintenance of the sign required by subdivision one  of
    28  this  section.  The resident or his or her legal representative shall be
    29  responsible for installing and maintaining the sign required pursuant to
    30  subdivision two of this section, which shall also be in accordance  with
    31  the written policy of the nursing home.
    32    §  2900-h.  Reporting abuse and neglect. Any person who views an inci-
    33  dent which a reasonable person would consider  abuse  or  neglect  after
    34  viewing  a recording made in a nursing home shall report the incident to
    35  the nursing home as soon as is practicable after the viewing. The  nurs-
    36  ing  home  shall  be  provided with a copy of the recording in which the
    37  suspected incident of abuse or neglect occurred. If the  recording  must
    38  be transferred to a different format to be viewed, the transfer shall be
    39  done  at the expense of the nursing home by a qualified professional who
    40  can certify that the contents of the recording were not altered.
    41    § 2900-i. Administrative rulemaking. The department shall adopt  rules
    42  and  regulations  necessary  for the implementation of the provisions of
    43  this article.
    44    § 3. 1. On or before January 1, 2022, each nursing  home  licensed  by
    45  the  department  of health shall provide to each resident of the nursing
    46  home or, if applicable, the legal guardian or legally appointed  substi-
    47  tute  decision-maker authorized to act on behalf of the resident, a form
    48  prescribed by the department of  health  explaining  the  provisions  of
    49  section  two this act, and give each resident or his or her legal repre-
    50  sentative or legally appointed substitute decision-maker  authorized  to
    51  act  on  behalf  of  the  resident, a choice to have a monitoring device
    52  installed in the room of the resident.
    53    2. Each nursing home shall retain a copy of  each  form  completed  in
    54  accordance  with  this section, and shall make all such forms accessible
    55  to the administrator of the office of the state long-term care ombudsman
    56  within the office for the aging.

        S. 597                              5
 
     1    § 4. The public health law is amended by adding a new  section  2808-e
     2  to read as follows:
     3    § 2808-e. Long-term care ombudsman program; notification to residents.
     4  Each  nursing  home  and  residential health care facility in this state
     5  shall provide notice to each resident of such nursing home  or  facility
     6  and  to  the  immediate  family  members of such resident informing such
     7  resident and family members of the long-term care ombudsman program  set
     8  forth  in  section  two  hundred  eighteen of the elder law. Such notice
     9  shall provide and prominently display the name of and  contact  informa-
    10  tion  for  the  local  ombudsman  entity designated to operate the local
    11  long-term care ombudsman program for such nursing home or  facility.  In
    12  addition,  each  nursing home and residential health care facility shall
    13  provide such notice to such resident and family members:  (a)  at  least
    14  once  annually;  (b)  at  any  time that the contact information for the
    15  local ombudsman entity designated to operate the  local  long-term  care
    16  ombudsman  program for such nursing home or facility changes; and (c) at
    17  any time that there is a change in the local ombudsman entity designated
    18  to operate the local long-term care ombudsman program for  such  nursing
    19  home or facility.
    20    § 5. This act shall take effect immediately.
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