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-
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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
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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.
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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.
