A05161 Summary:

BILL NOA05161D
 
SAME ASSAME AS S04622-C
 
SPONSORBraunstein
 
COSPNSRSkoufis, Mosley, Jaffee, Miller, Brindisi, Arroyo, Hooper, Gottfried, Zebrowski, Cook, Montesano, Finch, Saladino, Robinson, Seawright, Friend, Russell, Galef, Kavanagh, Hevesi, Weprin
 
MLTSPNSRCeretto, Hikind, 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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A05161 Actions:

BILL NOA05161D
 
02/12/2015referred to health
03/23/2015amend (t) and recommit to health
03/23/2015print number 5161a
05/28/2015amend and recommit to health
05/28/2015print number 5161b
06/02/2015reported referred to codes
06/10/2015amend and recommit to codes
06/10/2015print number 5161c
06/15/2015reported referred to rules
01/06/2016referred to health
02/02/2016reported referred to codes
06/13/2016amend and recommit to codes
06/13/2016print number 5161d
06/15/2016reported referred to rules
06/16/2016reported
06/16/2016rules report cal.436
06/16/2016ordered to third reading rules cal.436
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A05161 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5161D
 
SPONSOR: Braunstein
  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 the patient's image or speech. This section also offers an exception when such broadcast is for the specific purpose 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 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 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 served by an 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" is defined as the transmission by one of several methods, including by broadcast, cable, closed circuit, Internet, 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.   JUSTIFICATION: Under the federal HIPAA law, a patient's private health information is not to be shared, with the exception of information designated by the patient. Hospitals and doctors are governed by many such rules that are intended to protect patient privacy. Despite this, a reality-based medical television show on ABC, "NY Med," broadcast intimate details of a patient's health care at New York-Presbyterian Hospital/Weill Cornell Medical Center. One patient, Mark Chanko, who was being treated after having been struck by a sanitation truck, passed away during the course of such filming. Mr. Chanko's widow, Anita, was watching an episode of "NY Med" when a new segment of the show started. As it progressed, she realized that the patient being shown, despite the face being blurred out, was her husband 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 experi- ence of her life. The hospital and "NY Med" did not seek permission from either Mark or his family before the show was broadcast. Patients have an expectation and a right to privacy when being treated in a medical facility. To film and broadcast this treatment without permission is an outrageous violation of their right to privacy as patients. 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: New bill.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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A05161 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5161--D
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 12, 2015
                                       ___________
 
        Introduced  by  M.  of  A.  BRAUNSTEIN, SKOUFIS, MOSLEY, JAFFEE, MILLER,
          BRINDISI,  ARROYO,  HOOPER,  GOTTFRIED,  ZEBROWSKI,  COOK,  MONTESANO,
          FINCH,   SALADINO,   ROBINSON,   SEAWRIGHT,  FRIEND,  RUSSELL,  GALEF,
          KAVANAGH, HEVESI -- Multi-Sponsored by -- M. of  A.  CERETTO,  HIKIND,
          McDONOUGH,  PALMESANO,  PEOPLES-STOKES,  SCHIMMINGER, SIMON, TITONE --
          read once and  referred  to  the  Committee  on  Health  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee  -- again reported from said committee with amend-
          ments, ordered reprinted as amended and recommitted to said  committee
          --  reported  and  referred  to  the  Committee  on Codes -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- recommitted to the Committee on Health in accord-
          ance with Assembly Rule 3, sec. 2 --  reported  and  referred  to  the
          Committee  on  Codes  --  committee  discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        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.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08232-21-6

        A. 5161--D                          2
 
     1    2. Such privacy in treatment shall include the obtaining by the health
     2  care  facility  of  express  written consent on a separate document used
     3  solely for such purpose from an individual receiving treatment  in  such
     4  facility  prior to broadcasting the recognizable image or speech of such
     5  patient  involved  in  such  treatment.  In the case of broadcasting the
     6  recognizable image or speech for education or training  of  health  care
     7  personnel,  the  patient  shall have the right to know of and shall have
     8  the right to refuse the broadcasting for that purpose. A person  legally
     9  authorized  to  make  health care decisions for the patient or otherwise
    10  authorized to consent may grant such consent or exercise such refusal if
    11  the patient cannot reasonably do so due to such patient's incapacity.
    12    3. For the purposes of this section:
    13    (a) "health care facility" shall mean a residential health care facil-
    14  ity, general hospital, free-standing ambulatory care facility,  diagnos-
    15  tic and/or treatment center and clinic authorized under this article, or
    16  ambulance operated by an ambulance service as defined by subdivision two
    17  of  section  three  thousand one of this chapter or by a voluntary ambu-
    18  lance service as defined by subdivision three of section three  thousand
    19  one of this chapter;
    20    (b) "quality assurance" shall mean any evaluation of services provided
    21  in  or  by a health care facility for purposes of improvement in safety,
    22  quality or outcomes;
    23    (c) "education or training of health  care  personnel"  shall  mean  a
    24  program  of  education  or training of health care personnel or students
    25  being educated or trained to be health care personnel, that  the  health
    26  care facility has authorized;
    27    (d)  "broadcasting"  of  an image or speech shall mean transmission by
    28  broadcast, cable, closed circuit, internet or other television or visual
    29  medium, social media, or other system by  which  it  can  be  viewed  in
    30  violation of the privacy rights and expectations of a patient.
    31    4. Nothing in this section shall diminish or impair any right or reme-
    32  dy otherwise applicable to any patient.
    33    §  2.  Section 50-c of the civil rights law, as amended by chapter 643
    34  of the laws of 1999, is amended to read as follows:
    35    § 50-c. Private right of action.  1. If the identity of the victim  of
    36  an offense defined in subdivision one of section fifty-b of this article
    37  is  disclosed  in  violation of such section, any person injured by such
    38  disclosure may bring an action to recover damages suffered by reason  of
    39  such  wrongful disclosure. In any action brought under this section, the
    40  court may award reasonable [attorney's] attorneys' fees to a  prevailing
    41  plaintiff.
    42    2.  If the privacy of an individual as defined in section twenty-eight
    43  hundred six-c of the public health  law  regarding  the  right  to  have
    44  privacy  in  treatment  and  in caring for personal needs, including the
    45  broadcasting of the recognizable image or speech of a  patient  involved
    46  in  a  health  care procedure in such a facility has been violated, such
    47  individual or his or her estate representative may bring  an  action  to
    48  recover  damages  suffered  by  reason  of such violation. In any action
    49  brought under this section, the court may  award  reasonable  attorneys'
    50  fees to a prevailing plaintiff. The cause of action created herein shall
    51  survive the death of such individual.
    52    § 3. This act shall take effect immediately.
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