S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    420
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced by M. of A. BRAUNSTEIN, MOSLEY, JAFFEE, M. G. MILLER, ARROYO,
   GOTTFRIED,  ZEBROWSKI,  COOK,  MONTESANO,  FINCH,  SEAWRIGHT,  FRIEND,
   GALEF, HEVESI, WEPRIN -- Multi-Sponsored by --  M.  of  A.  McDONOUGH,
   PALMESANO,   PEOPLES-STOKES,  SCHIMMINGER,  SIMON  --  read  once  and
   referred to the Committee on Health
 
 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:
 
   Section  1.  The  public health law is amended by adding a new section
 2806-c to read as follows:
   § 2806-C. RESTRICTIONS ON BROADCASTING OF PATIENTS. 1.  EVERY  PATIENT
 IN A HEALTH CARE FACILITY SHALL HAVE THE RIGHT TO HAVE PRIVACY IN TREAT-
 MENT AND IN CARING FOR PERSONAL NEEDS, INCLUDING THE BROADCASTING OF THE
 RECOGNIZABLE  IMAGE  OR SPEECH OF SUCH PATIENT INVOLVED IN A HEALTH CARE
 PROCEDURE IN SUCH FACILITY, WITH  THE  EXCEPTION  OF  BROADCASTING  SUCH
 IMAGE  OR SPEECH FOR THE PURPOSES OF ADVANCING THE HEALTH CARE TREATMENT
 OF THE INDIVIDUAL, A QUALITY ASSURANCE PROGRAM, THE EDUCATION OR  TRAIN-
 ING OF HEALTH CARE PERSONNEL, OR NECESSARY SECURITY PURPOSES.
   2. SUCH PRIVACY IN TREATMENT SHALL INCLUDE THE OBTAINING BY THE HEALTH
 CARE  FACILITY  OF  EXPRESS  WRITTEN CONSENT ON A SEPARATE DOCUMENT USED
 SOLELY FOR SUCH PURPOSE FROM AN INDIVIDUAL RECEIVING TREATMENT  IN  SUCH
 FACILITY  PRIOR TO BROADCASTING THE RECOGNIZABLE IMAGE OR SPEECH OF SUCH
 PATIENT INVOLVED IN SUCH TREATMENT. IN  THE  CASE  OF  BROADCASTING  THE
 RECOGNIZABLE  IMAGE  OR  SPEECH FOR EDUCATION OR TRAINING OF HEALTH CARE
 PERSONNEL, THE PATIENT SHALL HAVE THE RIGHT TO KNOW OF  AND  SHALL  HAVE
 THE  RIGHT TO REFUSE THE BROADCASTING FOR THAT PURPOSE. A PERSON LEGALLY
 AUTHORIZED TO MAKE HEALTH CARE DECISIONS FOR THE  PATIENT  OR  OTHERWISE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02693-01-9

 A. 420                              2
 
 AUTHORIZED TO CONSENT MAY GRANT SUCH CONSENT OR EXERCISE SUCH REFUSAL IF
 THE PATIENT CANNOT REASONABLY DO SO DUE TO SUCH PATIENT'S INCAPACITY.
   3. FOR THE PURPOSES OF THIS SECTION:
   (A) "HEALTH CARE FACILITY" SHALL MEAN A RESIDENTIAL HEALTH CARE FACIL-
 ITY,  GENERAL HOSPITAL, FREE-STANDING AMBULATORY CARE FACILITY, DIAGNOS-
 TIC AND/OR TREATMENT CENTER AND CLINIC AUTHORIZED UNDER THIS ARTICLE, OR
 AMBULANCE OPERATED BY AN AMBULANCE SERVICE AS DEFINED BY SUBDIVISION TWO
 OF SECTION THREE THOUSAND ONE OF THIS CHAPTER OR BY  A  VOLUNTARY  AMBU-
 LANCE  SERVICE AS DEFINED BY SUBDIVISION THREE OF SECTION THREE THOUSAND
 ONE OF THIS CHAPTER;
   (B) "QUALITY ASSURANCE" SHALL MEAN ANY EVALUATION OF SERVICES PROVIDED
 IN OR BY A HEALTH CARE FACILITY FOR PURPOSES OF IMPROVEMENT  IN  SAFETY,
 QUALITY OR OUTCOMES;
   (C)  "EDUCATION  OR  TRAINING  OF  HEALTH CARE PERSONNEL" SHALL MEAN A
 PROGRAM OF EDUCATION OR TRAINING OF HEALTH CARE  PERSONNEL  OR  STUDENTS
 BEING  EDUCATED  OR TRAINED TO BE HEALTH CARE PERSONNEL, THAT THE HEALTH
 CARE FACILITY HAS AUTHORIZED;
   (D) "BROADCASTING" OF AN IMAGE OR SPEECH SHALL  MEAN  TRANSMISSION  BY
 BROADCAST, CABLE, CLOSED CIRCUIT, INTERNET OR OTHER TELEVISION OR VISUAL
 MEDIUM,  SOCIAL  MEDIA,  OR  OTHER  SYSTEM  BY WHICH IT CAN BE VIEWED IN
 VIOLATION OF THE PRIVACY RIGHTS AND EXPECTATIONS OF A PATIENT.  PROVIDED
 HOWEVER, THAT BROADCASTING SHALL NOT INCLUDE INCIDENTAL TRANSMISSION  OF
 THE  IMAGE  OR  SPEECH  OF  AN  INDIVIDUAL BEING TREATED, TRANSPORTED OR
 OTHERWISE CARED FOR OR ATTENDED TO BY AN AMBULANCE SERVICE AS DEFINED IN
 SUBDIVISION TWO OF SECTION THREE THOUSAND ONE OF THIS CHAPTER  OR  BY  A
 VOLUNTARY  AMBULANCE  SERVICE AS DEFINED IN SUBDIVISION THREE OF SECTION
 THREE THOUSAND ONE OF THIS CHAPTER,  AT  AN  AMBULANCE  RESPONSE  SCENE,
 PUBLIC  AREA  OR DURING DELIVERY OR ADMISSION TO A HEALTH CARE FACILITY,
 THAT IS CAPTURED BY NEWS MEDIA, BYSTANDERS OR OTHERS WHO DO NOT HAVE THE
 WRITTEN  CONSENT  OF  SUCH  AMBULANCE  SERVICE  OR  VOLUNTARY  AMBULANCE
 SERVICE.
   4. NOTHING IN THIS SECTION SHALL DIMINISH OR IMPAIR ANY RIGHT OR REME-
 DY OTHERWISE APPLICABLE TO ANY PATIENT.
   §  2.  Section 50-c of the civil rights law, as amended by chapter 643
 of the laws of 1999, is amended to read as follows:
   § 50-c. Private right of action.  1. If the identity of the victim  of
 an offense defined in subdivision one of section fifty-b of this article
 is  disclosed  in  violation of such section, any person injured by such
 disclosure may bring an action to recover damages suffered by reason  of
 such  wrongful disclosure. In any action brought under this section, the
 court may award reasonable [attorney's] ATTORNEYS' fees to a  prevailing
 plaintiff.
   2.  IF THE PRIVACY OF AN INDIVIDUAL AS DEFINED IN SECTION TWENTY-EIGHT
 HUNDRED SIX-C OF THE PUBLIC HEALTH  LAW  REGARDING  THE  RIGHT  TO  HAVE
 PRIVACY  IN  TREATMENT  AND  IN CARING FOR PERSONAL NEEDS, INCLUDING THE
 BROADCASTING OF THE RECOGNIZABLE IMAGE OR SPEECH OF A  PATIENT  INVOLVED
 IN  A  HEALTH  CARE PROCEDURE IN SUCH A FACILITY HAS BEEN VIOLATED, SUCH
 INDIVIDUAL OR HIS OR HER ESTATE REPRESENTATIVE MAY BRING  AN  ACTION  TO
 RECOVER  DAMAGES  SUFFERED  BY  REASON  OF SUCH VIOLATION. IN ANY ACTION
 BROUGHT UNDER THIS SECTION, THE COURT MAY  AWARD  REASONABLE  ATTORNEYS'
 FEES TO A PREVAILING PLAINTIFF. THE CAUSE OF ACTION CREATED HEREIN SHALL
 SURVIVE THE DEATH OF SUCH INDIVIDUAL.
   3. NOTHING IN THIS SECTION SHALL DIMINISH OR IMPAIR ANY RIGHT OR REME-
 DY OTHERWISE APPLICABLE TO ANY PATIENT.
   § 3. This act shall take effect immediately.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  420--A
                                                         Cal. No. 215
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced by M. of A. BRAUNSTEIN, MOSLEY, JAFFEE, M. G. MILLER, ARROYO,
   GOTTFRIED,  ZEBROWSKI,  COOK,  MONTESANO,  FINCH,  SEAWRIGHT,  FRIEND,
   GALEF, HEVESI, WEPRIN, ABINANTI, L. ROSENTHAL, GRIFFIN --  Multi-Spon-
   sored  by  --  M.  of  A. McDONOUGH, NOLAN, PALMESANO, PEOPLES-STOKES,
   SCHIMMINGER, SIMON -- read once  and  referred  to  the  Committee  on
   Health  -- reported and referred to the Committee on Codes -- reported
   from committee, advanced to  a  third  reading,  amended  and  ordered
   reprinted, retaining its place on the order of third reading
 
 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:
 
   Section 1. The public health law is amended by adding  a  new  section
 2806-c to read as follows:
   §  2806-C.  RESTRICTIONS ON BROADCASTING OF PATIENTS. 1. EVERY PATIENT
 IN A HEALTH CARE FACILITY SHALL HAVE THE RIGHT TO HAVE PRIVACY IN TREAT-
 MENT AND IN CARING FOR PERSONAL NEEDS, INCLUDING THE BROADCASTING OF THE
 RECOGNIZABLE IMAGE OR SPEECH OF SUCH PATIENT INVOLVED IN A  HEALTH  CARE
 PROCEDURE  WITHIN  THE  CONFINES OF SUCH FACILITY, WITH THE EXCEPTION OF
 BROADCASTING SUCH IMAGE OR SPEECH FOR  THE  PURPOSES  OF  ADVANCING  THE
 HEALTH  CARE  TREATMENT  OF THE INDIVIDUAL, A QUALITY ASSURANCE PROGRAM,
 THE EDUCATION OR TRAINING OF HEALTH CARE PERSONNEL, OR NECESSARY SECURI-
 TY PURPOSES.
   2. SUCH PRIVACY IN TREATMENT SHALL INCLUDE THE OBTAINING BY THE HEALTH
 CARE FACILITY OF EXPRESS WRITTEN CONSENT ON  A  SEPARATE  DOCUMENT  USED
 SOLELY  FOR  SUCH PURPOSE FROM AN INDIVIDUAL RECEIVING TREATMENT IN SUCH
 FACILITY PRIOR TO BROADCASTING THE RECOGNIZABLE IMAGE OR SPEECH OF  SUCH
 PATIENT  INVOLVED  IN  SUCH  TREATMENT.  IN THE CASE OF BROADCASTING THE
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02693-06-9

 A. 420--A                           2
 
 RECOGNIZABLE IMAGE OR SPEECH FOR EDUCATION OR TRAINING  OF  HEALTH  CARE
 PERSONNEL,  THE  PATIENT  SHALL HAVE THE RIGHT TO KNOW OF AND SHALL HAVE
 THE RIGHT TO REFUSE THE BROADCASTING FOR THAT PURPOSE. A PERSON  LEGALLY
 AUTHORIZED  TO  MAKE  HEALTH CARE DECISIONS FOR THE PATIENT OR OTHERWISE
 AUTHORIZED TO CONSENT MAY GRANT SUCH CONSENT OR EXERCISE SUCH REFUSAL IF
 THE PATIENT CANNOT REASONABLY DO SO DUE TO SUCH PATIENT'S INCAPACITY.
   3. FOR THE PURPOSES OF THIS SECTION:
   (A) "HEALTH CARE FACILITY" SHALL MEAN A RESIDENTIAL HEALTH CARE FACIL-
 ITY, GENERAL HOSPITAL, FREE-STANDING AMBULATORY CARE FACILITY,  DIAGNOS-
 TIC AND/OR TREATMENT CENTER AND CLINIC AUTHORIZED UNDER THIS ARTICLE, OR
 WITHIN  THE CONFINES OF AN AMBULANCE OPERATED BY AN AMBULANCE SERVICE AS
 DEFINED BY SUBDIVISION TWO OF SECTION THREE THOUSAND ONE OF THIS CHAPTER
 OR BY A VOLUNTARY AMBULANCE SERVICE AS DEFINED BY SUBDIVISION  THREE  OF
 SECTION THREE THOUSAND ONE OF THIS CHAPTER;
   (B) "QUALITY ASSURANCE" SHALL MEAN ANY EVALUATION OF SERVICES PROVIDED
 IN  OR  BY A HEALTH CARE FACILITY FOR PURPOSES OF IMPROVEMENT IN SAFETY,
 QUALITY OR OUTCOMES;
   (C) "EDUCATION OR TRAINING OF HEALTH  CARE  PERSONNEL"  SHALL  MEAN  A
 PROGRAM  OF  EDUCATION  OR TRAINING OF HEALTH CARE PERSONNEL OR STUDENTS
 BEING EDUCATED OR TRAINED TO BE HEALTH CARE PERSONNEL, THAT  THE  HEALTH
 CARE FACILITY HAS AUTHORIZED;
   (D)  "BROADCASTING"  OF  AN IMAGE OR SPEECH SHALL MEAN TRANSMISSION BY
 BROADCAST, CABLE, CLOSED CIRCUIT, INTERNET OR OTHER TELEVISION OR VISUAL
 MEDIUM, SOCIAL MEDIA, OR OTHER SYSTEM BY  WHICH  IT  CAN  BE  VIEWED  IN
 VIOLATION OF THE PRIVACY RIGHTS AND EXPECTATIONS OF A PATIENT.  PROVIDED
 HOWEVER,  THAT BROADCASTING SHALL NOT INCLUDE INCIDENTAL TRANSMISSION OF
 THE IMAGE OR SPEECH OF  AN  INDIVIDUAL  BEING  TREATED,  TRANSPORTED  OR
 OTHERWISE CARED FOR OR ATTENDED TO BY AN AMBULANCE SERVICE AS DEFINED IN
 SUBDIVISION  TWO  OF  SECTION THREE THOUSAND ONE OF THIS CHAPTER OR BY A
 VOLUNTARY AMBULANCE SERVICE AS DEFINED IN SUBDIVISION THREE  OF  SECTION
 THREE  THOUSAND  ONE  OF  THIS  CHAPTER, AT AN AMBULANCE RESPONSE SCENE,
 PUBLIC AREA OR DURING DELIVERY OR ADMISSION TO A HEALTH  CARE  FACILITY,
 THAT IS CAPTURED BY NEWS MEDIA, BYSTANDERS OR OTHERS WHO DO NOT HAVE THE
 WRITTEN  CONSENT  OF  SUCH  AMBULANCE  SERVICE  OR  VOLUNTARY  AMBULANCE
 SERVICE.
   (E) NOTHING IN THIS SECTION SHALL APPLY WHERE SUCH RECOGNIZABLE  IMAGE
 OR SPEECH IS BROADCAST OR CONVEYED AS PART OF THE NEWS GATHERING PROCESS
 AMONG  PROFESSIONAL  JOURNALISTS,  NEWSCASTERS  OR  OTHER INDIVIDUALS OR
 ENTITIES DEFINED IN SUBDIVISION (A) OF  SECTION  SEVENTY-NINE-H  OF  THE
 CIVIL RIGHTS LAW, BUT NOT BROADCAST TO THE PUBLIC.
   4. NO HEALTH CARE FACILITY, AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION
 THREE  OF THIS SECTION, SHALL INCUR ANY LIABILITY UNDER THIS SECTION FOR
 THE BROADCASTING BY A THIRD PARTY OF THE RECOGNIZABLE IMAGE OR SPEECH OF
 A PATIENT INVOLVED IN A HEALTH CARE PROCEDURE IN THE FACILITY WHEN  SUCH
 IMAGE OR SPEECH WAS OBTAINED BY THE THIRD PARTY WITHOUT THE KNOWLEDGE OR
 CONSENT OF THE FACILITY OR ITS STAFF.
   5.    NOTHING  IN  THIS  SECTION SHALL DIMINISH OR IMPAIR ANY RIGHT OR
 REMEDY OTHERWISE APPLICABLE TO ANY PATIENT.
   § 2. Section 50-c of the civil rights law, as amended by  chapter  643
 of the laws of 1999, is amended to read as follows:
   §  50-c. Private right of action.  1. If the identity of the victim of
 an offense defined in subdivision one of section fifty-b of this article
 is disclosed in violation of such section, any person  injured  by  such
 disclosure  may bring an action to recover damages suffered by reason of
 such wrongful disclosure. In any action brought under this section,  the
 court may award reasonable attorney's fees to a prevailing plaintiff.

 A. 420--A                           3
 
   2.  IF THE PRIVACY OF AN INDIVIDUAL AS DEFINED IN SECTION TWENTY-EIGHT
 HUNDRED SIX-C OF THE PUBLIC HEALTH  LAW  REGARDING  THE  RIGHT  TO  HAVE
 PRIVACY  IN  TREATMENT  AND  IN CARING FOR PERSONAL NEEDS, INCLUDING THE
 BROADCASTING OF THE RECOGNIZABLE IMAGE OR SPEECH OF A  PATIENT  INVOLVED
 IN  A  HEALTH  CARE PROCEDURE IN SUCH A FACILITY HAS BEEN VIOLATED, SUCH
 INDIVIDUAL OR HIS OR HER ESTATE REPRESENTATIVE MAY BRING  AN  ACTION  TO
 RECOVER  DAMAGES  SUFFERED  BY  REASON  OF SUCH VIOLATION. IN ANY ACTION
 BROUGHT UNDER THIS SECTION, THE COURT MAY  AWARD  REASONABLE  ATTORNEY'S
 FEES TO A PREVAILING PLAINTIFF. THE CAUSE OF ACTION CREATED HEREIN SHALL
 SURVIVE  THE DEATH OF SUCH INDIVIDUAL AND SHALL ONLY APPLY TO VIOLATIONS
 OCCURRING ON AND AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION.
   3. NOTHING IN THIS SECTION SHALL DIMINISH OR IMPAIR ANY RIGHT OR REME-
 DY OTHERWISE APPLICABLE TO ANY PATIENT.
   § 3. This act shall take effect immediately.