S T A T E O F N E W Y O R K
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11085
I N A S S E M B L Y
October 7, 2020
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Introduced by COMMITTEE ON RULES -- (at request of M. of A. Stirpe) --
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. 11085 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. 11085 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.
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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. 11085 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.