S T A T E O F N E W Y O R K
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10074
I N A S S E M B L Y
May 10, 2016
___________
Introduced by M. of A. McLAUGHLIN -- read once and referred to the
Committee on Judiciary
AN ACT to amend the public health law, in relation to visitation of
residents in care facilities by family members
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The public health law is amended by adding a new article
28-F to read as follows:
ARTICLE 28-F
VISITATION OF RESIDENTS IN NURSING HOMES, HOSPITALS AND RESIDENTIAL
HEALTH CARE FACILITIES
SECTION 2900. DEFINITIONS.
2900-A. PETITION FOR VISITATION.
2900-B. RIGHT TO COMMUNICATION.
2900-C. GUARDIAN'S DUTY TO INFORM CERTAIN RELATIVES ABOUT RESI-
DENT'S HEALTH AND RESIDENCE.
S 2900. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING WORDS AND
PHRASES SHALL HAVE THE FOLLOWING MEANINGS:
1. "ADULT CHILD" MEANS AN INDIVIDUAL WHO IS AT LEAST EIGHTEEN YEARS OF
AGE AND WHO IS RELATED TO A RESIDENT BIOLOGICALLY, THROUGH ADOPTION,
THROUGH THE MARRIAGE OR FORMER MARRIAGE OF A RESIDENT TO THE BIOLOGICAL
PARENT OF THE ADULT CHILD, OR BY A JUDGMENT OF PARENTAGE ENTERED BY A
COURT OF COMPETENT JURISDICTION.
2. "FAMILY MEMBER" MEANS ANY SPOUSE, DOMESTIC PARTNER, ADULT CHILD,
ADULT GRANDCHILD, PARENT OR SIBLING OF A RESIDENT.
3. "RESIDENT" MEANS AN ADULT RESIDENT OF ANY OF THE FOLLOWING:
(A) A HOSPITAL, NURSING HOME OR RESIDENTIAL HEALTH CARE FACILITY
PURSUANT TO SECTION TWO THOUSAND EIGHT HUNDRED ONE OF THIS CHAPTER;
(B) A LICENSED FACILITY PURSUANT TO ARTICLE SIXTEEN OF THE MENTAL
HYGIENE LAW;
(C) ANY COMMUNITY RESIDENCE PURSUANT TO SECTION 1.03 OF THE MENTAL
HYGIENE LAW; OR
(D) ANY HOME OR OTHER RESIDENTIAL DWELLING IN WHICH THE RESIDENT IS
RECEIVING CARE AND SERVICES FROM ANY PERSON.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15189-01-6
A. 10074 2
4. "VISITATION" MEANS AN IN-PERSON MEETING OR ANY TELEPHONIC, WRITTEN
OR ELECTRONIC COMMUNICATION.
S 2900-A. PETITION FOR VISITATION. 1. ANY FAMILY MEMBER MAY PETITION A
COURT TO COMPEL VISITATION WITH A RESIDENT.
2. IN RULING ON THE PETITION, THE COURT SHALL DETERMINE IF THE RESI-
DENT HAS SUFFICIENT CAPACITY TO MAKE A KNOWING AND INTELLIGENT VISITA-
TION DECISION. IF THE COURT DETERMINES THAT THE RESIDENT HAS SUFFICIENT
CAPACITY TO MAKE A KNOWING AND INTELLIGENT VISITATION DECISION, THE
COURT SHALL GRANT REASONABLE VISITATION IF THE RESIDENT EXPRESSES A
DESIRE FOR VISITATION.
3. NO COURT MAY ISSUE AN ORDER TO COMPEL VISITATION IF THE COURT FINDS
ANY OF THE FOLLOWING:
(A) THE RESIDENT, WHILE HAVING THE CAPACITY TO EVALUATE AND COMMUNI-
CATE DECISIONS REGARDING VISITATION, EXPRESSES A DESIRE TO NOT HAVE
VISITATION WITH THAT FAMILY MEMBER;
(B) VISITATION BETWEEN THE PETITIONING FAMILY MEMBER AND THE RESIDENT
IS NOT IN THE BEST INTEREST OF THE RESIDENT; OR
(C) THE RESIDENT LACKS THE CAPACITY TO MAKE A KNOWING AND INTELLIGENT
VISITATION DECISION AND THE COURT DETERMINES THE RESIDENT WOULD NOT WANT
VISITATION RIGHTS FOR THE FAMILY MEMBER BASED ON THE FOLLOWING FACTORS:
I. THE HISTORY OF THE RELATIONSHIP BETWEEN RESIDENT AND FAMILY MEMBER;
II. ANY STATEMENTS MADE BY THE RESIDENT EXPRESSING HIS OR HER DESIRE
TO DENY VISITATION RIGHTS TO THE FAMILY MEMBER; OR
III. ANY POWER OF ATTORNEY OR ESTATE PLANNING DOCUMENT THAT EXPRESSES
AN OPINION ON VISITATION WITH THE FAMILY MEMBER.
4. THE COURT SHALL SCHEDULE A HEARING ON THE PETITION NO LATER THAN
THE SIXTIETH DAY AFTER THE DATE THE PETITION IS FILED WITH THE COURT. IF
THE RESIDENT'S HEALTH IS IN SIGNIFICANT DECLINE OR IF THE RESIDENT'S
DEATH MAY BE IMMINENT, THE COURT SHALL CONDUCT AN EMERGENCY HEARING ON
THE PETITION UNDER THIS SECTION AS SOON AS PRACTICABLE AND NO LATER THAN
TEN DAYS AFTER THE DATE THE PETITION IS FILED WITH THE COURT.
5. UPON A MOTION OR ON THE COURT'S OWN MOTION, IF THE COURT FINDS
DURING A HEARING ON A PETITION UNDER THIS SECTION THAT A PERSON IS KNOW-
INGLY ISOLATING A RESIDENT, THE COURT SHALL ORDER THE PERSON TO PAY
COURT COSTS AND REASONABLE ATTORNEY FEES OF THE PETITIONER UNDER THIS
SECTION AND MAY ORDER OTHER APPROPRIATE REMEDIES. NO COSTS, FEES, OR
OTHER SANCTIONS MAY BE PAID FROM THE RESIDENT'S FINANCES OR ESTATE.
6. THE PETITION MAY BE FILED IN THE SUPREME COURT OF ANY OF THE
FOLLOWING COUNTIES:
(A) THE COUNTY IN WHICH THE RESIDENT RESIDES; OR
(B) THE COUNTY IN WHICH THE RESIDENT IS TEMPORARILY LIVING.
7. THE PETITION SHALL STATE, OR SET FORTH BY A DECLARATION ATTACHED TO
THE PETITION, ALL OF THE FOLLOWING KNOWN TO THE PETITIONER AT THE TIME
THE PETITION IS FILED:
(A) THE CONDITION OF THE RESIDENT'S HEALTH, TO THE EXTENT KNOWN TO THE
PETITIONER;
(B) THE PROPOSED VISITATION TO BE CONSIDERED;
(C) THE EFFORTS MADE TO OBTAIN VISITATION WITH THE RESIDENT;
(D) THE DEFICIT OR DEFICITS, IF ANY, IN THE RESIDENT'S MENTAL FUNC-
TIONS THAT ARE IMPAIRED AND AN IDENTIFICATION OF A LINK BETWEEN THE
DEFICIT OR DEFICITS AND THE RESIDENT'S INABILITY TO RESPOND KNOWINGLY
AND INTELLIGENTLY TO QUERIES ABOUT THE REQUESTED VISITATION; AND
(E) THE NAMES AND ADDRESSES, SO FAR AS THEY ARE KNOWN TO THE PETITION-
ER, OF A SPOUSE OR DOMESTIC PARTNER AND ALL RELATIVES WITHIN THE SECOND
DEGREE OF THE RESIDENT.
A. 10074 3
8. UPON FILING OF THE PETITION, THE COURT SHALL DETERMINE IF THE RESI-
DENT HAS RETAINED AN ATTORNEY TO REPRESENT HIM OR HER IN THE PROCEEDING
OR IF THE RESIDENT PLANS TO RETAIN AN ATTORNEY.
9. (A) NOT LESS THAN FIFTEEN DAYS BEFORE THE HEARING, NOTICE OF THE
TIME AND PLACE OF THE HEARING AND A COPY OF THE PETITION SHALL BE
PERSONALLY SERVED ON THE RESIDENT, AND THE RESIDENT'S ATTORNEY, IF ANY;
(B) NOT LESS THAN FIFTEEN DAYS BEFORE THE HEARING, NOTICE OF THE TIME
AND PLACE OF THE HEARING AND A COPY OF THE PETITION SHALL BE MAILED TO
THE FOLLOWING PERSONS:
I. THE RESIDENT'S SPOUSE OR DOMESTIC PARTNER, IF ANY, AT THE ADDRESS
STATED IN THE PETITION; AND
II. THE RESIDENT'S RELATIVES NAMED IN THE PETITION AT EACH RELATIVE'S
ADDRESS STATED IN THE PETITION.
10. PRIOR TO THE HEARING, THE COURT INVESTIGATOR SHALL DO ALL OF THE
FOLLOWING:
(A) CONDUCT INTERVIEWS OF THE FOLLOWING INDIVIDUALS:
I. THE RESIDENT;
II. ALL PETITIONERS;
III. THE RESIDENT'S SPOUSE OR DOMESTIC PARTNER AND RELATIVES WITHIN
THE FIRST DEGREE; AND
IV. TO THE EXTENT PRACTICABLE, NEIGHBORS, AND, IF KNOWN, CLOSE FRIENDS
OF THE RESIDENT.
(B) INFORM THE RESIDENT OF THE CONTENTS OF THE PETITION;
(C) DETERMINE WHETHER THE RESIDENT HAS THE CAPACITY TO CONSENT TO THE
REQUESTED VISITATION;
(D) DETERMINE WHETHER THE RESIDENT DESIRES THE PROPOSED VISITATION;
(E) REPORT TO THE COURT IN WRITING, AT LEAST FIVE DAYS BEFORE THE
HEARING, CONCERNING THE INFORMATION FROM PARAGRAPHS (A), (B), (C) AND
(D) OF THIS SUBDIVISION;
(F) MAIL, AT LEAST FIVE DAYS BEFORE THE HEARING, A COPY OF THE REPORT
REFERRED TO IN PARAGRAPH (E) OF THIS SUBDIVISION TO ALL OF THE FOLLOW-
ING:
I. THE ATTORNEY, IF ANY, FOR THE PETITIONER. IF THE PETITIONER IS
REPRESENTING HIMSELF OR HERSELF, THEN TO THE PETITIONER;
II. THE ATTORNEY, IF ANY, FOR THE RESIDENT. IF THE RESIDENT IS REPRES-
ENTING HIMSELF OR HERSELF, THEN TO THE RESIDENT;
III. THE SPOUSE, DOMESTIC PARTNER, AND RELATIVES WITHIN THE FIRST
DEGREE OF THE RESIDENT, UNLESS THE COURT DETERMINES THAT THE MAILING
WILL RESULT IN HARM TO THE RESIDENT; AND
IV. ANY OTHER PERSONS THE COURT ORDERS.
(G) IF THE COURT INVESTIGATOR HAS PERFORMED AN INVESTIGATION WITHIN
THE PRECEDING TWELVE MONTHS AND FURNISHED A REPORT THEREON TO THE COURT,
THE COURT MAY ORDER, UPON GOOD CAUSE SHOWN, THAT ANOTHER INVESTIGATION
IS NOT NECESSARY OR THAT A MORE LIMITED INVESTIGATION MAY BE PERFORMED.
11. THE COURT IN WHICH THE PETITION IS FILED HAS CONTINUING JURISDIC-
TION TO REVOKE OR MODIFY AN ORDER MADE UNDER THIS SECTION UPON A PETI-
TION FILED, NOTICED, AND HEARD IN THE SAME MANNER AS AN ORIGINAL PETI-
TION FILED UNDER THIS SECTION.
12. EACH COURT SHALL ASSESS EACH FAMILY MEMBER WHO FILES A PETITION
FOR VISITATION IN THE COUNTY FOR AN INVESTIGATION OR REVIEW CONDUCTED BY
A COURT INVESTIGATOR WITH RESPECT TO THE RESIDENT. THE COURT MAY ORDER
REIMBURSEMENT TO THE COURT FOR THE AMOUNT OF THE ASSESSMENT, UNLESS THE
COURT FINDS THAT ALL OR ANY PART OF THE ASSESSMENT WOULD IMPOSE A HARD-
SHIP ON THE FAMILY MEMBER FILING A PETITION FOR VISITATION.
S 2900-B. RIGHT TO COMMUNICATION. A RESIDENT HAS THE RIGHT TO RECEIVE
AND TO REFUSE PRIVATE AND UNRESTRICTED COMMUNICATION INCLUDING THE RIGHT
A. 10074 4
TO RECEIVE AND TO REFUSE TO RECEIVE PERSONAL MAIL AND ELECTRONIC COMMU-
NICATIONS FROM ANY PERSON AND TO HAVE REASONABLE ACCESS TO A TELEPHONE
FOR RECEIVING PRIVATE COMMUNICATIONS FROM ANY PERSON.
S 2900-C. GUARDIAN'S DUTY TO INFORM CERTAIN RELATIVES ABOUT RESIDENT'S
HEALTH AND RESIDENCE. 1. THE GUARDIAN OF A RESIDENT SHALL AS SOON AS
PRACTICABLE INFORM FAMILY MEMBERS IF:
(A) THE RESIDENT DIES;
(B) THE RESIDENT IS ADMITTED TO A MEDICAL FACILITY FOR ACUTE CARE FOR
A PERIOD OF THREE DAYS OR MORE;
(C) THE RESIDENT'S RESIDENCE HAS CHANGED; OR
(D) THE RESIDENT IS STAYING AT A LOCATION OTHER THAN THE RESIDENT'S
RESIDENCE FOR A PERIOD THAT EXCEEDS ONE CALENDAR WEEK.
2. THE GUARDIAN MUST MAKE A REASONABLE EFFORT TO NOTIFY EACH FAMILY
MEMBER BY MAILING A COPY OF THE NOTICE TO EACH FAMILY MEMBER'S LAST
KNOWN RESIDENCE. THE COURT SHALL RELIEVE THE GUARDIAN OF THE DUTY TO
PROVIDE NOTICE ABOUT A RESIDENT TO A FAMILY MEMBER UNDER THIS SECTION IF
THE COURT FINDS:
I. THE MOTION INCLUDES A WRITTEN REQUEST FROM A FAMILY MEMBER ELECTING
TO NOT RECEIVE THE NOTICE;
II. THE GUARDIAN WAS UNABLE TO LOCATE THE FAMILY MEMBER AFTER MAKING
REASONABLE EFFORTS TO DISCOVER AND LOCATE THE FAMILY MEMBER;
III. THE GUARDIAN WAS ABLE TO LOCATE THE FAMILY MEMBER, BUT WAS UNABLE
TO ESTABLISH COMMUNICATION WITH THE FAMILY MEMBER AFTER MAKING REASON-
ABLE EFFORTS TO ESTABLISH COMMUNICATION;
IV. A PROTECTIVE ORDER WAS ISSUED AGAINST THE FAMILY MEMBER TO PROTECT
THE RESIDENT;
V. A COURT OR OTHER STATE AGENCY HAS FOUND THAT THE FAMILY MEMBER
ABUSED, NEGLECTED, OR EXPLOITED THE RESIDENT; OR
VI. NOTICE IS NOT IN THE BEST INTEREST OF THE RESIDENT.
3. IN THE CASE OF THE RESIDENT'S DEATH, THE GUARDIAN SHALL INFORM
FAMILY MEMBERS OF ANY FUNERAL ARRANGEMENTS AND THE LOCATION OF THE RESI-
DENT'S FINAL RESTING PLACE.
4. A FAMILY MEMBER ENTITLED TO NOTICE UNDER THIS SECTION MAY ELECT TO
NOT RECEIVE THE NOTICE BY PROVIDING A WRITTEN REQUEST TO THAT EFFECT TO
THE GUARDIAN. A GUARDIAN SHALL FILE ANY WRITTEN REQUEST RECEIVED BY THE
GUARDIAN UNDER THIS SUBDIVISION WITH THE COURT.
S 2. This act shall take effect immediately.