S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10968
 
                           I N  A S S E M B L Y
 
                             September 9, 2020
                                ___________
 
 Introduced  by COMMITTEE ON RULES -- (at request of M. of A. Bronson) --
   read once and referred 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:

   Section 1. Short title. This act shall be known and may  be  cited  as
 the "New York state nursing home virtual visitation act".
   §  2. The public health law is amended by adding a new article 28-F to
 read as follows:
                               ARTICLE 28-F
          VIRTUAL VISITATION AND MONITORING OF NURSING HOME CARE
 SECTION 2900. DEFINITIONS.
         2900-A. MONITORING DEVICE; AUTHORIZATION AND USE.
         2900-B. MONITORING DEVICE OPTION; INSTALLATION; CONSENT OF RESI-
                   DENTS IN SHARED ROOMS; ACCOMMODATION BY NURSING HOME.
         2900-C. CONSENT; WAIVER.
         2900-D. AUTHORIZATION FORM; CONTENT.
         2900-E. IMMUNITY; UNAUTHORIZED USE.
         2900-F. PROHIBITED ACTS; CIVIL AND CRIMINAL PENALTIES.
         2900-G. PUBLIC NOTICE; SIGNAGE OF ELECTRONIC MONITORING DEVICE.
         2900-H. REPORTING ABUSE AND NEGLECT.
         2900-I. ADMINISTRATIVE RULEMAKING.
   § 2900. DEFINITIONS. AS USED IN THIS ARTICLE, THE TERM:
   1. (A) "MONITORING DEVICE" MEANS:
   (I) A SURVEILLANCE INSTRUMENT THAT TRANSMITS AND RECORDS ACTIVITY  AND
 IS NOT CONNECTED TO THE NURSING HOME'S COMPUTER NETWORK; AND
   (II)  A COMPUTER, TABLET, PHONE, SMART DISPLAY OR ANY OTHER ELECTRONIC
 DEVICE THAT CAN BE USED FOR VIDEO CONFERENCING.
   (B) THE TERM "MONITORING DEVICE"  SHALL  NOT  INCLUDE  A  CAMERA  THAT
 RECORDS STILL IMAGES EXCLUSIVELY.
   2.  "VIDEO CONFERENCING" MEANS THE USE OF A COMPUTER NETWORK, PLATFORM
 OR APP TO PROVIDE A LIVE, VISUAL CONNECTION BETWEEN TWO OR  MORE  PEOPLE
 RESIDING IN SEPARATE LOCATIONS FOR THE PURPOSE OF COMMUNICATION.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16458-03-0

 A. 10968                            2
 
   3. "NURSING HOME" SHALL HAVE THE SAME MEANING AS SET FORTH IN SUBDIVI-
 SION TWO OF SECTION TWENTY-EIGHT HUNDRED ONE OF THIS CHAPTER.
   4.  "OMBUDSMAN"  MEANS  THE STATE LONG-TERM CARE OMBUDSMAN ESTABLISHED
 WITHIN THE OFFICE FOR THE AGING PURSUANT TO SUBDIVISION TWO  OF  SECTION
 TWO HUNDRED EIGHTEEN ON THE ELDER LAW.
   5. "RESIDENT" MEANS A PERSON WHO IS A RESIDENT OF A NURSING HOME.
   6.  "LEGAL  REPRESENTATIVE"  MEANS  A  LEGAL  GUARDIAN  OR  A  LEGALLY
 APPOINTED SUBSTITUTE DECISION-MAKER WHO IS AUTHORIZED TO ACT  ON  BEHALF
 OF A NURSING HOME RESIDENT.
   §  2900-A. MONITORING DEVICE; AUTHORIZATION AND USE. 1. A RESIDENT WHO
 HAS THE CAPACITY TO CONSENT, AS DETERMINED BY THE DEPARTMENT PURSUANT TO
 THIS ARTICLE, OR HIS OR  HER  LEGAL  REPRESENTATIVE  MAY  AUTHORIZE  THE
 INSTALLATION  AND USE OF A MONITORING DEVICE IN A NURSING HOME IF ALL OF
 THE FOLLOWING CONDITIONS ARE MET:
   (A) THE RESIDENT OR HIS OR HER LEGAL REPRESENTATIVE  GIVES  NOTICE  OF
 THE INSTALLATION TO THE NURSING HOME.
   (B) IF THE MONITORING DEVICE RECORDS ACTIVITY VISUALLY, THE RECORDINGS
 MADE BY THE DEVICE INCLUDE A RECORD OF THE DATE AND TIME.
   (C)  THE RESIDENT PAYS FOR THE MONITORING DEVICE AND ALL INSTALLATION,
 OPERATION, MAINTENANCE, AND REMOVAL COSTS ASSOCIATED WITH THE DEVICE.
   (D) EACH RESIDENT OCCUPYING THE SAME ROOM  WHO  HAS  THE  CAPACITY  TO
 CONSENT,  AS  DETERMINED  BY THE DEPARTMENT PURSUANT TO THIS ARTICLE, OR
 THAT RESIDENT'S LEGAL REPRESENTATIVE,  GIVES  WRITTEN  CONSENT  FOR  THE
 INSTALLATION OF THE MONITORING DEVICE.
   2. IF THE STRUCTURE OF THE RESIDENT'S ROOM MUST BE ALTERED IN ORDER TO
 ACCOMMODATE  A MONITORING DEVICE, THEN THE RENOVATION TO THE ROOM MAY BE
 DONE ONLY BY A LICENSED CONTRACTOR, SUBJECT TO APPROVAL BY  THE  NURSING
 HOME.
   3.  ANY  MONITORING DEVICE INSTALLED IN ACCORDANCE WITH THE PROVISIONS
 OF THIS ARTICLE SHALL BE IN COMPLIANCE WITH THE NATIONAL FIRE PROTECTION
 ASSOCIATION LIFE SAFETY REGULATIONS.
   § 2900-B. MONITORING DEVICE OPTION; INSTALLATION; CONSENT OF RESIDENTS
 IN SHARED ROOMS; ACCOMMODATION BY NURSING HOME. 1. (A) AT THE TIME OF  A
 PERSON'S  ADMISSION TO A NURSING HOME, THE NURSING HOME SHALL NOTIFY THE
 PERSON OF HIS OR HER RIGHT TO HAVE A MONITORING DEVICE INSTALLED IN  HIS
 OR  HER ROOM, AND SHALL OFFER THE PERSON THE OPTION TO HAVE A MONITORING
 DEVICE. THE RESIDENT OR HIS OR HER ROOMMATE MAY EXERCISE  THE  RIGHT  TO
 INSTALL OR REMOVE A MONITORING DEVICE AT ANY TIME DURING WHICH HE OR SHE
 RESIDES IN THE NURSING HOME. THE NURSING HOME SHALL KEEP A RECORD OF THE
 PERSON'S AUTHORIZATION OR CHOICE NOT TO HAVE A MONITORING DEVICE.
   (B)  THE  NURSING HOME SHALL MAKE THE RECORD PROVIDED FOR IN PARAGRAPH
 (A) OF THIS SUBDIVISION ACCESSIBLE TO THE OMBUDSMAN.
   2. (A) IF A RESIDENT WHO IS RESIDING IN A SHARED ROOM WISHES TO HAVE A
 MONITORING DEVICE INSTALLED IN THE ROOM AND ANOTHER RESIDENT  LIVING  IN
 OR MOVING INTO THE SAME SHARED ROOM REFUSES TO CONSENT TO THE USE OF THE
 MONITORING DEVICE, THEN THE NURSING HOME SHALL MAKE A REASONABLE ATTEMPT
 TO  ACCOMMODATE  THE  RESIDENT  WHO WISHES TO HAVE THE MONITORING DEVICE
 INSTALLED. A NURSING HOME SHALL BE DEEMED TO HAVE MET THIS ACCOMMODATION
 REQUIREMENT WHEN, UPON NOTIFICATION THAT A ROOMMATE HAS NOT CONSENTED TO
 THE USE OF AN ELECTRONIC MONITORING DEVICE IN HIS OR HER ROOM, THE NURS-
 ING HOME OFFERS TO MOVE EITHER RESIDENT TO ANOTHER SHARED ROOM  THAT  IS
 AVAILABLE AT THE TIME OF THE REQUEST.
   (B)  IF  A  RESIDENT  CHOOSES  TO RESIDE IN A PRIVATE ROOM IN ORDER TO
 ACCOMMODATE THE USE OF AN ELECTRONIC  MONITORING  DEVICE,  THE  RESIDENT
 SHALL PAY THE PRIVATE ROOM RATE. IF A NURSING HOME IS UNABLE TO ACCOMMO-
 DATE  A RESIDENT DUE TO LACK OF SPACE, THE NURSING HOME SHALL REEVALUATE

 A. 10968                            3
 
 THE REQUEST  AT  LEAST  ONCE  EVERY  TWO  WEEKS  UNTIL  THE  REQUEST  IS
 FULFILLED.
   3.  AFTER  AUTHORIZATION,  CONSENT, AND NOTICE IN ACCORDANCE WITH THIS
 ARTICLE, A RESIDENT OR HIS OR  HER  LEGAL  REPRESENTATIVE  MAY  INSTALL,
 OPERATE,  AND  MAINTAIN,  AT  THE  EXPENSE OF THE RESIDENT, A MONITORING
 DEVICE IN THE ROOM OF THE RESIDENT.
   4. THE NURSING HOME SHALL COOPERATE TO ACCOMMODATE THE INSTALLATION OF
 THE MONITORING DEVICE UNLESS DOING SO WOULD PLACE UNDUE  BURDEN  ON  THE
 NURSING HOME.
   5.  THE MONITORING DEVICE SHALL BE IN A FIXED, STATIONARY POSITION AND
 SHALL MONITOR ONLY  THE  RESIDENT  WHO  CONSENTS  EITHER  PERSONALLY  OR
 THROUGH HIS OR HER LEGAL REPRESENTATIVE TO BE MONITORED.
   § 2900-C. CONSENT; WAIVER. 1. CONSENT TO THE AUTHORIZATION FOR INSTAL-
 LATION  AND USE OF A MONITORING DEVICE MAY BE GIVEN ONLY BY THE RESIDENT
 OR HIS OR HER LEGAL REPRESENTATIVE.
   2. CONSENT TO THE AUTHORIZATION FOR INSTALLATION AND USE OF A MONITOR-
 ING DEVICE SHALL INCLUDE A RELEASE OF LIABILITY FOR THE NURSING HOME FOR
 A VIOLATION OF THE RESIDENT'S RIGHT TO PRIVACY INSOFAR AS THE USE OF THE
 MONITORING DEVICE IS CONCERNED.
   3. A RESIDENT OR HIS OR HER LEGAL REPRESENTATIVE MAY REVERSE A  CHOICE
 TO  HAVE  OR NOT HAVE A MONITORING DEVICE INSTALLED AND USED AT ANY TIME
 AFTER NOTICE OF SUCH REVERSAL HAS BEEN MADE TO THE NURSING HOME, AND  TO
 THE OMBUDSMAN, UPON A FORM PRESCRIBED BY THE DEPARTMENT.
   §  2900-D. AUTHORIZATION FORM; CONTENT. THE FORM FOR THE AUTHORIZATION
 OF INSTALLATION AND USE OF A MONITORING DEVICE SHALL PROVIDE FOR ALL  OF
 THE FOLLOWING:
   1.  CONSENT OF THE RESIDENT OR HIS OR HER LEGAL REPRESENTATIVE AUTHOR-
 IZING THE INSTALLATION AND USE OF THE MONITORING DEVICE.
   2. NOTICE TO THE NURSING HOME OF  THE  RESIDENT'S  INSTALLATION  OF  A
 MONITORING DEVICE AND SPECIFICS AS TO THE TYPE, FUNCTION, AND USE OF THE
 DEVICE.
   3.  CONSENT OF ANY OTHER RESIDENT SHARING THE SAME ROOM, OR THAT RESI-
 DENT'S LEGAL REPRESENTATIVE, TO THE INSTALLATION AND USE OF A MONITORING
 DEVICE.
   4. NOTICE OF RELEASE FROM LIABILITY FOR VIOLATION OF  PRIVACY  THROUGH
 THE USE OF THE MONITORING DEVICE.
   5.  WAIVER  OF  THE RESIDENT'S RIGHT TO PRIVACY IN CONNECTION WITH THE
 USE OF THE MONITORING DEVICE.
   § 2900-E. IMMUNITY; UNAUTHORIZED USE. 1. IN ANY CIVIL ACTION AGAINST A
 NURSING HOME, MATERIAL OBTAINED THROUGH THE USE OF A  MONITORING  DEVICE
 SHALL  NOT BE USED IF THE DEVICE WAS INSTALLED OR USED WITHOUT THE KNOW-
 LEDGE OF THE NURSING HOME, OR INSTALLED OR USED WITHOUT  THE  PRESCRIBED
 FORM.
   2.  COMPLIANCE WITH THE PROVISIONS OF THIS ARTICLE SHALL BE A COMPLETE
 DEFENSE TO ANY CIVIL OR CRIMINAL ACTION BROUGHT  AGAINST  THE  RESIDENT,
 LEGAL REPRESENTATIVE, OR NURSING HOME FOR THE USE OR PRESENCE OF A MONI-
 TORING DEVICE.
   §  2900-F.  PROHIBITED  ACTS;  CIVIL AND CRIMINAL PENALTIES. 1. (A) NO
 NURSING HOME SHALL DENY A PERSON OR RESIDENT ADMISSION TO  OR  DISCHARGE
 FROM  A  NURSING  HOME, OR OTHERWISE DISCRIMINATE OR RETALIATE AGAINST A
 PERSON OR RESIDENT, BECAUSE THE PERSON OR RESIDENT CHOOSES TO  AUTHORIZE
 INSTALLATION AND USE OF A MONITORING DEVICE.
   (B)  ANY  PERSON WHO KNOWINGLY OR WILLFULLY VIOLATES THE PROVISIONS OF
 PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE SUBJECT TO APPROPRIATE ACTION
 BY THE DEPARTMENT AS SET FORTH  IN  RULES  AND  REGULATIONS  PROMULGATED
 PURSUANT TO THIS ARTICLE.

 A. 10968                            4
 
   2.  (A)  EXCEPT  AS  PROVIDED IN PARAGRAPH (B) OF THIS SUBDIVISION, NO
 PERSON SHALL INTENTIONALLY HAMPER, OBSTRUCT, TAMPER WITH, OR  DESTROY  A
 MONITORING  DEVICE  OR A RECORDING MADE BY A MONITORING DEVICE INSTALLED
 IN A NURSING HOME PURSUANT TO THIS ARTICLE.
   (B)  THE  PROHIBITION AND PENALTIES PROVIDED IN THIS SUBDIVISION SHALL
 NOT APPLY TO THE RESIDENT WHO OWNS THE MONITORING DEVICE  OR  RECORDING,
 OR TO HIS OR HER LEGAL REPRESENTATIVE.
   §  2900-G.  PUBLIC NOTICE; SIGNAGE OF ELECTRONIC MONITORING DEVICE. 1.
 IF A RESIDENT OF A NURSING HOME CONDUCTS ELECTRONIC MONITORING,  A  SIGN
 SHALL  BE  CLEARLY  AND CONSPICUOUSLY POSTED AT THE MAIN ENTRANCE OF THE
 NURSING HOME BUILDING TO ALERT AND INFORM VISITORS.  THE SIGN  SHALL  BE
 IN A LARGE, CLEARLY LEGIBLE TYPE AND FONT AND BEAR THE WORDS "ELECTRONIC
 MONITORING"  AND  SHALL  FURTHER  STATE IN EQUALLY LEGIBLE TYPE AND FONT
 "THE ROOMS OF SOME RESIDENTS MAY BE EQUIPPED WITH ELECTRONIC  MONITORING
 DEVICES INSTALLED BY OR ON BEHALF OF THE RESIDENT."
   2. A SIGN SHALL BE CLEARLY AND CONSPICUOUSLY POSTED AT THE ENTRANCE OF
 A  RESIDENT'S  ROOM  WHERE  AUTHORIZED  ELECTRONIC  MONITORING  IS BEING
 CONDUCTED. THE SIGN SHALL BE IN LARGE, CLEARLY LEGIBLE TYPE AND FONT AND
 BEAR THE WORDS "THIS ROOM IS ELECTRONICALLY MONITORED."
   3. THE NURSING HOME SHALL  BE  RESPONSIBLE  FOR  REASONABLE  COSTS  OF
 INSTALLATION  AND MAINTENANCE OF THE SIGN REQUIRED BY SUBDIVISION ONE OF
 THIS SECTION. THE RESIDENT OR HIS OR HER LEGAL REPRESENTATIVE  SHALL  BE
 RESPONSIBLE FOR INSTALLING AND MAINTAINING THE SIGN REQUIRED PURSUANT TO
 SUBDIVISION  TWO OF THIS SECTION, WHICH SHALL ALSO BE IN ACCORDANCE WITH
 THE WRITTEN POLICY OF THE NURSING HOME.
   § 2900-H. REPORTING ABUSE AND NEGLECT. ANY PERSON WHO VIEWS  AN  INCI-
 DENT  WHICH  A  REASONABLE  PERSON WOULD CONSIDER ABUSE OR NEGLECT AFTER
 VIEWING A RECORDING MADE IN A NURSING HOME SHALL REPORT THE INCIDENT  TO
 THE  NURSING HOME AS SOON AS IS PRACTICABLE AFTER THE VIEWING. THE NURS-
 ING HOME SHALL BE PROVIDED WITH A COPY OF THE  RECORDING  IN  WHICH  THE
 SUSPECTED  INCIDENT  OF ABUSE OR NEGLECT OCCURRED. IF THE RECORDING MUST
 BE TRANSFERRED TO A DIFFERENT FORMAT TO BE VIEWED, THE TRANSFER SHALL BE
 DONE AT THE EXPENSE OF THE NURSING HOME BY A QUALIFIED PROFESSIONAL  WHO
 CAN CERTIFY THAT THE CONTENTS OF THE RECORDING WERE NOT ALTERED.
   §  2900-I. ADMINISTRATIVE RULEMAKING. THE DEPARTMENT SHALL ADOPT RULES
 AND REGULATIONS NECESSARY FOR THE IMPLEMENTATION OF  THE  PROVISIONS  OF
 THIS ARTICLE.
   §  3.  1.  On or before January 1, 2021, each nursing home licensed by
 the department of health shall provide to each resident of  the  nursing
 home  or, if applicable, the legal guardian or legally appointed substi-
 tute decision-maker authorized to act on behalf of the resident, a  form
 prescribed  by  the  department  of  health explaining the provisions of
 section two this act, and give each resident or his or her legal  repre-
 sentative  or  legally appointed substitute decision-maker authorized to
 act on behalf of the resident, a choice  to  have  a  monitoring  device
 installed in the room of the resident.
   2.  Each  nursing  home  shall retain a copy of each form completed in
 accordance with this section, and shall make all such  forms  accessible
 to the administrator of the office of the state long-term care ombudsman
 within the office for the aging.
   §  4.  The public health law is amended by adding a new section 2808-e
 to read as follows:
   § 2808-E. LONG-TERM CARE OMBUDSMAN PROGRAM; NOTIFICATION TO RESIDENTS.
 EACH NURSING HOME AND RESIDENTIAL HEALTH CARE  FACILITY  IN  THIS  STATE
 SHALL  PROVIDE  NOTICE TO EACH RESIDENT OF SUCH NURSING HOME OR FACILITY
 AND TO THE IMMEDIATE FAMILY MEMBERS  OF  SUCH  RESIDENT  INFORMING  SUCH

 A. 10968                            5
 
 RESIDENT  AND FAMILY MEMBERS OF THE LONG-TERM CARE OMBUDSMAN PROGRAM SET
 FORTH IN SECTION TWO HUNDRED EIGHTEEN OF  THE  ELDER  LAW.  SUCH  NOTICE
 SHALL  PROVIDE  AND PROMINENTLY DISPLAY THE NAME OF AND CONTACT INFORMA-
 TION  FOR  THE  LOCAL  OMBUDSMAN  ENTITY DESIGNATED TO OPERATE THE LOCAL
 LONG-TERM CARE OMBUDSMAN PROGRAM FOR SUCH NURSING HOME OR  FACILITY.  IN
 ADDITION,  EACH  NURSING HOME AND RESIDENTIAL HEALTH CARE FACILITY SHALL
 PROVIDE SUCH NOTICE TO SUCH RESIDENT AND FAMILY MEMBERS:  (A)  AT  LEAST
 ONCE  ANNUALLY;  (B)  AT  ANY  TIME THAT THE CONTACT INFORMATION FOR THE
 LOCAL OMBUDSMAN ENTITY DESIGNATED TO OPERATE THE  LOCAL  LONG-TERM  CARE
 OMBUDSMAN  PROGRAM FOR SUCH NURSING HOME OR FACILITY CHANGES; AND (C) AT
 ANY TIME THAT THERE IS A CHANGE IN THE LOCAL OMBUDSMAN ENTITY DESIGNATED
 TO OPERATE THE LOCAL LONG-TERM CARE OMBUDSMAN PROGRAM FOR  SUCH  NURSING
 HOME OR FACILITY.
   § 5. This act shall take effect immediately.