A05161 Summary:

BILL NOA05161C
 
SAME ASSAME AS S04622-B
 
SPONSORBraunstein
 
COSPNSRSkoufis, Mosley, Jaffee, Miller, Brindisi, Arroyo, Hooper, Gottfried, Zebrowski, Cook, Montesano, Finch, Saladino, Robinson, Seawright, Friend, Russell, Galef, Kavanagh, Hevesi
 
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 NOA05161C
 
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
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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: A5161C
 
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 prevent patients from being filmed during treatment, and to prevent such treatment from being broadcast without their consent.   SUMMARY OF SPECIFIC PROVISIONS: Section 1. Adds a new section 2806-c to the public health law. Section 2806-c provides that every patient in or being served by a health care facility shall have the right to privacy in treatment, which includes the making or broadcasting of a visual image of a health care procedure that includes the patient. This section also offers an excep- tion 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 necessary security purposes. 2806-c.2 provides 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 broadcasting from the individual receiving treatment, before making or broadcasting the visual image of the treatment. 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 his or her 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, ambulance service as defined by subdivision two of section 3001 of this chapter, voluntary ambulance service, as defined by subdivision three of section 3001 of this chapter, or certified first responders as defined by subdivision five of section 3001 of this chap- ter. "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 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 making or broadcasting of a visual image of a health care procedure including the patient. This section also provides that the individual or his or her estate representative may bring an action for damages, and the cause of action shall survive the death of the individual. Section 3. Contains the effective date.   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 New York-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 film and 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: New bill.   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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A05161 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5161--C
 
                               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
          --  Multi-Sponsored  by  --  M.  of  A.  CERETTO,  HIKIND,  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 amendments, 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
 
        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 visual images of patients. 1. Every patient,
     4  in or being served by a health care facility, shall have  the  right  to
     5  have  privacy  in  treatment and in caring for personal needs, including
     6  the making or broadcasting of a visual image of a health care  procedure
     7  including  the  patient,  with the exception of making or broadcasting a
     8  visual image for the purposes of advancing the health care treatment  of
     9  the  individual,  a quality assurance program, the education or training
    10  of health care personnel, or necessary security purposes.
    11    2. Privacy in treatment shall include the obtaining by the health care
    12  facility of express written consent on a separate document  used  solely
    13  for such purpose from an individual receiving treatment from such facil-
    14  ity  or  services prior to making or broadcasting a visual image of such
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08232-17-5

        A. 5161--C                          2
 
     1  treatment. In the case of making or  broadcasting  a  visual  image  for
     2  education  or  training of health care personnel, the patient shall have
     3  the right to know of and shall have the right to refuse  the  making  or
     4  broadcasting  for  that  purpose.  A  person  legally authorized to make
     5  health care decisions for the patient or otherwise authorized to consent
     6  may grant such consent or exercise such refusal if  the  patient  cannot
     7  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,
    12  ambulance  service  as defined by subdivision two of section three thou-
    13  sand one of this chapter, voluntary  ambulance  service  as  defined  by
    14  subdivision  three  of  section  three  thousand one of this chapter, or
    15  certified first responders as defined by  subdivision  five  of  section
    16  three thousand one of this chapter;
    17    (b) "quality assurance" shall mean any evaluation of services provided
    18  in  or  by a health care facility for purposes of improvement in safety,
    19  quality or outcomes;
    20    (c) "education or training of health  care  personnel"  shall  mean  a
    21  program  of  education  or training of health care personnel or students
    22  being educated or trained to be health care personnel, that  the  health
    23  care facility has authorized;
    24    (d)  "broadcasting  a  visual image" shall mean transmission by broad-
    25  cast, cable, closed circuit, internet  or  other  television  or  visual
    26  medium;  social  media;  or  other  system  by which it can be viewed in
    27  violation of the privacy rights and expectations of a patient.
    28    4. Nothing in this section shall diminish or impair any right or reme-
    29  dy otherwise applicable to any patient.
    30    § 2. Section 50-c of the civil rights law, as amended by  chapter  643
    31  of the laws of 1999, is amended to read as follows:
    32    §  50-c. Private right of action.  1. If the identity of the victim of
    33  an offense defined in subdivision one of section fifty-b of this article
    34  is disclosed in violation of such section, any person  injured  by  such
    35  disclosure  may bring an action to recover damages suffered by reason of
    36  such wrongful disclosure. In any action brought under this section,  the
    37  court may award reasonable attorney's fees to a prevailing plaintiff.
    38    2.  If the privacy of an individual as defined in section twenty-eight
    39  hundred six-c of the public health  law  regarding  the  right  to  have
    40  privacy  in  treatment  and  in caring for personal needs, including the
    41  making or broadcasting of a visual image  of  a  health  care  procedure
    42  including  the  patient,  such individual or his or her estate represen-
    43  tative may bring an action to recover damages suffered by reason of such
    44  violation. In any action brought under this section, the court may award
    45  reasonable attorney's fees to  a  prevailing  plaintiff.  The  cause  of
    46  action created herein shall survive the death of such individual.
    47    § 3. This act shall take effect immediately.
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