S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  520--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced   by   M.  of  A.  BRAUNSTEIN,  GOTTFRIED,  ZEBROWSKI,  COOK,
   SEAWRIGHT, GALEF, HEVESI, WEPRIN,  L. ROSENTHAL,  GRIFFIN,  RODRIGUEZ,
   MONTESANO, FRIEND, BARRON -- Multi-Sponsored by -- M. of A. McDONOUGH,
   NOLAN,  PALMESANO,  PEOPLES-STOKES, SIMON -- read once and referred to
   the Committee on Health -- 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:
 
   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 IN THIS STATE SHALL HAVE THE RIGHT TO HAVE
 PRIVACY IN TREATMENT 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  FACILI-
 TY,  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 APPROPRIATE 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD03464-04-1

 A. 520--A                           2
 
 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 AN AMBULANCE WITH ALL  DOORS  CLOSED  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  SUBDIVI-
 SION 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, INCLUDING THOSE DEFINED IN SUBDIVISION (A) OF  SECTION  SEVEN-
 TY-NINE-H  OF THE CIVIL RIGHTS LAW, AND THEIR AGENTS AND LEGAL ADVISERS,
 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. 520--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.