RAQs: Recently Asked Questions

Topic: Reviewing Deed of Gift and Loan Forms - 11/12/2021
"Ask the Lawyer" got a question from a member: "Can you review our deed of gift and...
Posted: Friday, November 12, 2021 Permalink

MEMBER QUESTION

"Ask the Lawyer" got a question from a member: "Can you review our deed of gift and loan forms?"  We helped them out on a confidential basis, but we're using their question to inspire this guidance on implementing or updating a suite of policies for accepting and managing gifts into your collections.

WNYLRC ATTORNEY'S RESPONSE

The State of New York has very strong feelings about collecting cultural assets and information.  So strong, that such collections are governed by a host of laws, regulations, and policy.

Precisely which laws, regulations and policy apply to a collection depends on the type of entity doing the collecting.  Museums, historical societies, archives, and libraries all fall under their different (but overlapping) conditions. And before the law takes the wheel, the formation documents of an entity control what items fall within their mission, and what items don't make the cut.

So, for a simple question like: "Can you review our deed of gift and loan forms?" be ready for this response:

Yes!  We can review your deed of gift and loan forms.  To make sure the review supports your mission, is consistent with your governing documents, and ensures compliance with relevant law and regulation, can you send us:

  • Charter or Certificate of Incorporation
  • Bylaws
  • Collection Management Policy
  • Most recent form 990 or CHAR 500
  • Insurance Summary (optional, but it helps to know the extent of insurance coverage for both owned and borrowed items)

Now, if your institution needs your forms reviewed, and you can't find these things, don't worry, we can help you find them.  Also be prepared for a quick phone call asking if there are any current disputes involving collection items, and to discuss any specific goals you have for the forms.

When reviewing gift forms, the goal is always to ensure that the contract terms created by the form are consistent with the law and foundation documents that will govern the institution's receipt of the gift.  The makes a form more likely to withstand a challenge from an angry relative, or during an internal dispute.

So, no matter what lawyer reviews your forms, be ready to give them a dossier of documents!

Thanks to the member out there who put up with me while I kept asking questions!
 

Tags: Archives, Collection Management, Donations, Historical societies and museums

Topic: Circulating telehealth kits and disclaimers - 4/17/2020
Our library is considering adding a circulating telehealth kit to our collection for patron use. W...
Posted: Friday, April 17, 2020 Permalink

MEMBER QUESTION

Our library is considering adding a circulating telehealth kit to our collection for patron use. With the pandemic and telemedicine being the current norm, the goal is to fill a perceived need within our community. The proposed kit would include medical supplies including a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment. My question concerns any disclaimers that would be necessary to add to the kit as well as liability issues for the library if we were to implement this.

WNYLRC ATTORNEY'S RESPONSE

I love learning about new assets communities can access through their library.  Tools, ties, seeds, toys…this list is endless.

This is the first question “Ask the Lawyer” has received about health monitoring devices and medical supplies, and the member has rightly pointed out that there is a lot to consider in such a venture.  How can such lending be done with an emphasis on safety, and limiting legal risk for a library?

But before we delve into disclaimers and liability (yes, a disclaimer is going to be needed), let’s confirm some terminology.

In New York, Telehealth is defined[1] as “the use of electronic information and communication technologies to deliver health care to patients at a distance.”

Meanwhile, Telemedicine is defined[2] as “two-way electronic audio-visual communications to deliver clinical health care services to a patient at an originating site by a telehealth provider located at a distant site.”

In other words, Telemedicine is also Telehealth--but Telehealth is more than Telemedicine.  “Telehealth” is like the largest figure in a Russian nesting doll set, with Telemedicine (audio-visual communication of services) contained within—but separate.

The equipment being considered by the member are equipment for Telehealth, not the transmission of Telemedicine.  This has a lot of ramifications for liability and legal compliance, so it is important to take care in making the distinction from the start.

When considering the cataloging and lending of equipment for Telehealth, there are two other critical terms:

Store-and-Forward Technology, which is defined[3] as “asynchronous, electronic transmission of a member's health information in the form of patient-specific pre-recorded videos and/or digital images from a provider at an originating site to a telehealth provider at a distant site.”

…and…

Remote Patient Monitoring, which is defined[4] as “the use of digital technologies to collect medical data and other personal health information from members in one location and electronically transmit that information securely to health care providers in a different location for assessment and recommendations.”

“RMP,” as it is also called, includes the collection of information such as vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings; the type of monitoring the devices in the member’s question are about.

Okay, with that established…

YES, in lending such equipment, there are some concerns about risk and liability.  YES, a disclaimer is a good idea. And there are a few other considerations, too…related to procurement, cataloging, and lending (but in the end, all relevant to the issues of risk and liability).

How does a library address those considerations?  There are many details, but here is a process to systematically take them on:

Step One:  Make it incremental

What do I mean by “incremental?” 

I mean, instead of cataloging a kit of equipment as a single item, each item in the kit (and perhaps the bag itself) should be cataloged as a separate item.  That way, when the patron borrows the bag and the equipment, they will borrow them as separate components…the way another patron might check out the entire “Harry Potter” series and a DVD of “Goblet of Fire.” [5]

Why? Because each piece of health-related or medical equipment comes with its own set of legal terms (warrantees, disclaimers) and operating instructions.  By lending that equipment on a piece-by-piece basis, rather than in kits with multiple components checked out as a single unit, a library will be able to use that level of detail to take the liability-limiting and risk management steps I describe below.

 

Step Two: Know the devices

The member’s question lists the following telehealth equipment: “…a blood pressure cuff, pulse oximeter, a forehead thermometer, and a bag to hold the equipment.” 

This list makes sense, since “remote patient monitoring,” as described by the New York Department of Health,[6] uses instruments to measure vital signs, blood pressure, heart rate, weight, blood sugar, blood oxygen levels and electrocardiogram readings, so that information can be used to provide telemedicine.

How can a library “know” the equipment?  Before a Telehealth device is added to a catalog, a library should a) confirm it is commonly used for telehealth, b) confirm it meets your library’s procurement requirements; c) confirm that the precise device is registered with the FDA, and d) use the FDA site to confirm it has not been recalled.

The best place to do this is: https://accessgudid.nlm.nih.gov/.

 

Step Three: Plan to include the instructions

If the device comes with instructions, ensure the physical copy of the instructions is lent along with the device,[7] and generate a link or QR code so the instructions (in an ADA accessible format) can easily be found online.

This is so the borrower is empowered to use the device per the manufacturer’s instructions.  This is a key component of limiting the risks associated with lending devices of any kind—including health-related equipment.

 

Step Four: Set the Requirements for procurement

In addition to the Procurement Policy your library must follow, the following requirements should be in the RFP or RFQ for each device:

  • Will not transmit data OR any data transmission capability the device has meets current transmission requirements for telehealth;
  • Any digital memory the device has must be capable of deletion with no ability to recall the prior data;
  • Any device supplied must be registered with and thus listed on the FDA’s medical device database (and searchable by name or number);
  • There should be no parts intended for insertion into the body;
  • There should be no need for replacement parts;
  • There should be clear instructions for cleaning the device between uses, and those instructions should be a process staff can perform safely;
  • The purchasing decision should consider if/how the product is powered (battery, charging station) and plan to support that during lending;
  • There should be no safety recall.

 

Step Five: Be ready to continuously monitor for recall

This is critical—and why any device included in the collection should be registered with the FDA.  Prior to lending (every time), it should be confirmed at https://accessgudid.nlm.nih.gov/ that the device has not been recalled by the FDA.

 

Step Six: Confirm Functionality after Every Return

This, too, is critical.  Prior to lending (every time), it should be confirmed that the device is functioning properly, as described by the product’s instructions.

 

Step Seven: Consider bringing in a ringer

Prior to making the equipment ready for lending, consider launching the collection in connection with a public health partner in your community.

Why?

The ability to borrow a thermometer, or a blood pressure cuff, or pulse oximeter, could be a game-changer if a person’s own equipment is stolen, damaged, or lost.[8]  For people in rural areas who must order equipment and wait for delivery, it could facilitate the immediate start of Telehealth care, or ensure continuity of care while a replacement is on its way.  This project you are considering could save lives.

That said, people should only use telehealth equipment in connection with ongoing care from their health care provider. 

I am well aware of the cruel irony in this caveat.  Not all people have access to reliable health insurance or ongoing healthcare,[9] and thus might need to DIY their care with telehealth devices. But the concept of telehealth ONLY works if it is in conjunction with a health care provider. 

No one should be borrowing a library’s telehealth resources to use them in a health care vacuum.

This is where a public health partner could come in.  If the equipment is linked to information about a clinic or other local health care provider in your region who can help a patron connect to care, you can mitigate this risk, and urge the proper use of Telehealth equipment, while respecting the privacy and autonomy of patrons. 

This awareness should be part of your disclaimer.

 

Step Eight:  Yes, you should include a disclaimer

…and it is on a device-by-device basis.

Of course, any disclaimer should only be adopted after review by your library’s attorney AND insurance carrier.[10]  But here is a place for them to start:

“Prior to being borrowed, this equipment has been confirmed as not under recall by the United State Food and Drug Administration (“FDA”), and to be functioning per the manufacturer’s specifications. 

However, the [NAME] library cannot confirm that the equipment will remain functional or unrecalled while it is on loan.  To determine proper functioning, please refer to the instructions, and check the recall status of the device at at https://accessgudid.nlm.nih.gov/.

This is borrowed equipment.  You must follow the cleaning directions in the instructions before using this equipment. 

Please review the instructions and notify the library immediately at (#####) in the event the equipment is not functioning as the instructions describe. 

Use of this equipment should only be in conjunction with service from a licensed health care provider familiar with your medical needs. 

In the event you do not have access to a licensed health care provider, call [community health partner] to inquire about health care in the [NAME] region.  The library has confirmed that this resource can assist you in finding care.

In the event of a medical emergency, dial 911.”

 

Step Nine:  (If You have Room) Let them Know Their Rights

In the State of New York, patients being treated through telemedicine have certain legal rights. [11] If feasible, it would be good to foster awareness of these legal rights when lending telehealth equipment.  

Here is a sample notification:

This equipment is for temporary use when being treated via Telehealth.  It should only be used in connection with service from your health care provider.

If you are being treated by telehealth in New York, here are your rights:

Any practitioner starting a course of telemedicine should provide a patient with basic information about the services that they will be receiving via telehealth, and obtain their consent to participate in services utilizing this technology. 

Telehealth sessions/services may not be recorded without the member's consent.

Patients have the right to refuse to participate in services delivered via telehealth and must be made aware of alternatives and potential drawbacks of participating in a telehealth visit versus a face-to-face visit.

Patients must be informed and made aware of the role of the practitioner at the distant site, as well as qualified professional staff at the originating site who are going to be responsible for follow-up or ongoing care.

Patients must be informed and made aware of the location of the distant site and all questions regarding the equipment, the technology, etc., are addressed.

Patients have the right to have appropriately trained staff immediately available to them while receiving the telehealth service to attend to emergencies or other needs.

Patients have the right to be informed of all parties who will be present at each end of the telehealth transmission.

Patients have the right to select another provider and be notified that by selecting another provider, there could be a delay in service and the potential need to travel for a face-to-face visit.

 

Step 10:  Plan and budget to clean the Equipment Upon Return

However the instructions state the equipment should be cleaned, it must be cleaned (every time).  Developing a protocol to do this safety is something your library must consider during both procurement and budgeting for the staff time needed to lend and maintain the equipment.

 

And that’s it! 

Okay..I admit “it” is “a lot.”  The big take-away here is that, in addition to considering liability concerns and a disclaimer, your library must ensure it has the staff, storage, and maintenance capacity to engage in appropriate risk management.  That will take some planning, and some resources beyond simply buying the equipment.

That said, I suspect it will be worth it.[12]

I hope a worthy initiative like this can find a strong community health partner in the member’s region.  With a health care supporting your staff in selecting the right equipment, choosing the best brands, and pushing out information about patient rights and public health, this program could truly save lives.

Please let me know how it goes.[13]

 



[1] NYS Public Health Law § 4406-g (2).

[2] NY CLS Pub Health § 2805-u 1.(d).

[3]  NYS Public Health Law § 2999-cc, 6.  PLEASE NOTE: if your library is considering providing equipment to assist with “store-and-forward” a rigorous ethics, security, and HIPAA compliance check should be part of procurement.

[4] NYS Public Health Law § 2999-cc, 7.

[5] In Harry Potter, they practiced telemedicine via the Floo Network. (P.S. If you think I threw in this Harry Potter reference to enliven a dull list of footnoted citations, you are right!).

[7] I appreciate that this may involve the use of a laminator or other cool process libraries use to unnaturally extend the life of print media.  Wait until you see Step Ten.

[8] Or if the patron is in a coverage dispute with their carrier.  I have had some experience with this; not fun.

[10] Your carrier should also be apprised of the undertaking, in general. They may even have some helpful tips for you in developing the lending program.

[11] As set forth in the NYSDOH guidance document found on April 14, 2020, at https://health.ny.gov/health_care/medicaid/program/update/2019/2019-02_speced.htm#definition, with citations to relevant laws and regulations.

[12] As I write this, the state is still on “PAUSE” due to COVID-19.  The use of telehealth during the time has SOARED.  And reading projections for the future, it will only increase.

[13] Adams@stephaniecoleadams.com or call at (716) 464-3386.

Tags: COVID-19, Disclaimers, Emergency Response, Public Health, Telehealth, Collection Management, Library of Things

Topic: The Library of Things (and Bikes) - 5/22/2018
We are planning on installing a bike rack for our community members. With it begs the question, sh...
Posted: Tuesday, May 22, 2018 Permalink

MEMBER QUESTION

We are planning on installing a bike rack for our community members. With it begs the question, should we also loan bicycles? Many libraries already do. Here is but one example: http://cpl.prl.ab.ca/about-us/policies/bike-borrowing-agreement. My question is, as long as you have a policy in place, and the borrower signs the agreement, are all injuries waived once off your property? Is it really as simple as that? Please help me identify any worst case scenario possibilities that I should be prepared for.

WNYLRC ATTORNEY'S RESPONSE

From tools, to bikes, to digital printers, an increasing number of libraries are providing access to more than information. 

I imagine someone has named this phenomenon, but I got a J.D., not an MLS, so I couldn’t find its overall name.  Therefore, I call it “The Library of Things.”  [1]

Joining “The Library of Things,” signals a sea change in the identity of a library.  It expands its lending model beyond information (books, media, data) to capability (printers, kayaks, cameras). It converts a community asset from a place of intellectual access to a source of physical action and production

This combined role  is re-framing community awareness of libraries.  But whether it’s called a “makerspace,” or a “tool library” or simply a “3D printer,” these resources are challenging traditional library laws and ethics governing access, liability, and patron privacy.[2]  The member’s question is a perfect example of the complications that brings.

What complications?  The “Library of Things” is not simply about accessing assets, but using them, applying them, and sometimes, riding them.  Most library law (parts of the education law, CPLR 4509, a robust array of civil rights jurisprudence, and a body of case law regarding library operations) is built around that premise that a library’s mission to provide access to information must be safeguarded at all costs.  But that jurisprudence is largely silent on the issues posed by using equipment to take action or produce something.  That function, while important, is not enshrined in the law.  Prediction: the Library of Things will soon start testing the conventions of libraries’ legal status quo. 

But let’s get down to the brass tacks (or the greased chains).  What about the bikes?

Regarding the member’s precise question (“…as long as you have a policy in place, and the borrower signs the agreement, are all injuries waived once off your property? Is it really as simple as that?”), the answer is “no.”  The liability for lending equipment is a varied as the disclaimers and warrantees that equipment comes with, and in general, a simple policy and waiver are not the only things needed to anticipate risk and reduce liability.  So how does a library do it?

First (and I cannot say this enough): no library should contemplate the loan of functional equipment without thoroughly considering the risks and conditions of that equipment’s use.  The member’s question says it all: Please help me identify any worst case scenario possibilities that I should be prepared for.

When it comes to lending bikes, here an initial laundry list or “worst case scenario” thinking:

  • Will the library require helmets?
  • Will the library then provide helmets?
  • Can minors under 18 borrow them?
  • Can children under 14 borrow them?
  • Will the library provide information about the rules of the road?
  • Will the library require a safety demo before the first ride?
  • Has the library picked a demonstrably safe model of bike?  Is that model safe for all sizes?
  • Does it have all the required reflectors and bell?
  • Who will verify ridable condition before lending?
  • Who will deal with flats, rusty chains, and brakes?
  • How will the library respond to notice of an injury?
  • How will the library deter theft?
  • Who will own the bikes?
  • Who is providing insurance for every worst-case scenario?

Don’t worry…there are many ways to address the risks these questions highlight.  One solution, which can greatly ease the burden on a library, is to have the liability assumed (and insurance provided) by a third party through a rental contract.  With that approach, rather than accession the bikes, the library picks up the fee (rather like paying for access to a database), and the patrons, following an established policy, check the bikes out on their card.  In such an arrangement, the library’s contract, the underlying policies, and the agreement signed by the patron, could be drafted to promote safety and to shift the liabilities away from the library…an arrangement that must be confirmed by the right combination of contract provisions and proof of insurance.[3]

Second: no library should contemplate the loan of functional equipment without thoroughly considering the unique nature of their library.  Is the library a public institution?  Is it affiliated with a larger organization?  What are the limits of its insurance?[4]  Are there physical hazards near it that warrant enhanced care?  If your public library is at the top of a steep hill with a railroad crossing at the bottom, it should not use the same bike loan policy as the college library in the flat town with no CXS line.

Third (but in many ways, first): Is the contemplated asset critical to the mission of the library?  Is fulfilling the patron need for this equipment consistent with the library’s strategic plan and goals?  If the answers are “yes,” then addressing the first two questions should be easier, since clearly the identified risks and complications will be worth it.  If bikes with baskets help fulfill the mission to deliver books to the senior center, then bikes with baskets it is.

And finally, there are ancillary considerations.  Is the loan of equipment a “circulation record” subject to privacy laws?  Is the service as accessible as possible per ADA?  Do you need to follow a procurement policy when seeking a third-party bike provider or a purchase source? 

When developing a bike loan program, it’s essential to consider:

  • New York Vehicle and Traffic Law (“VTL”) 1236 requires that a bike have a bell (and expressly NOT a siren or whistle);
  • If ridden from dusk to dawn, a bike must have reflectors meeting the specs in 16 CFR 1512.16 (by law, all new bikes in the U.S.A. meet this standard);
  • Children under 14 must wear a helmet (NYS VTL 1238) (your insurance carrier might require ALL riders to wear a helmet);
  • It is a violation-level offense for a person over 18 to leave the scene of a bike crash causing MINOR injury to another without calling law enforcement (VTL 1240);
  • It is a B misdemeanor for a person over 18 to leave the scene of a bike crash causing MAJOR injury to another without calling law enforcement (VTL 1241);
  • Your insurance carrier will probably want to know about any injuries;
  • VTL 374 bars riding while listening to more than one earphone (no books on tape while riding); 
  • VTL 1235 bars carrying something that prevents keeping at least one arm on the handlebars (limit how many books your patrons are carrying home!).

That’s a lot, but there are resources to help you.  The library’s insurance carrier should be consulted at the outset.  The NY Department of Transportation maintains a list of current bike laws.  There are an array of groups that offer free safety training, and many civic organizations offer free helmets.  If possible, a third party vendor is the way to go, since it can help limit the library’s liability. Liability waivers should be custom-drafted to fit your library and the precise arrangements it has made for the bikes, but drafting your waiver should be the last step, after you’ve made your decisions about safety and conditions.

With a little coordination, you can address all the bells (but by law, leave off the whistles).

There’s a lot to wade through, but one thing is clear: libraries are evolving.  This means that with a few fits and starts, the law will evolve with them.  So once your organization decides to join the Library of Things, know the assets, know your library, stick to your mission, and roll with it. 

With the right planning, it’s as easy as riding a—

(Couldn’t resist).



[1] I invented this term as I wrote.  During editing, my husband (who does have a library degree) checked “Library of Things,” and found that it’s been in use for quite a while.  So I got to think I was clever for about 2 hours.

[2] I’m not a historian, either, but I really do think this change is significant.  Think about it: Ben Franklin, who founded this continent’s first formal lending library, was a printer.  But did that library give members free access to a printing press?  Or a candle mold? Lending things has not been baked into the model. 

[3] These documents should be reviewed by the library’s lawyer.  It doesn’t hurt to have them reviewed by the library’s liability insurance carrier, too.

[4] For instance, Camrose, AB, the library in the member’s question, is in Canada, a country with a markedly different approach to risk and health issues.

 

 

Tags: Policy, Collection Management, Templates

Topic: Defamation and Adding Defamatory Content to Collections - 3/12/2018
Can a library be sued for defamation for adding defamatory content to its collection?   ...
Posted: Tuesday, March 13, 2018 Permalink

MEMBER QUESTION

Can a library be sued for defamation for adding defamatory content to its collection?

 

WNYLRC ATTORNEY'S RESPONSE

As I work on “Ask the Lawyer,” one of the core concepts I keep in mind is a library’s unbiased commitment to provide information.  As set out in the ALA Policy Manual’s “Library Bill of Rights”:

Books and other library resources should be provided for the interest, information, and enlightenment of all people of the community the library serves. Materials should not be excluded because of the origin, background, or views of those contributing to their creation.

This commitment is backed up by section B.2.1.1 of the ALA’s Manual:

[I]t is the responsibility of every library to have a clearly defined written policy for collection development that includes a procedure for review of challenged resources.

Every library professional I have ever met takes these commitments seriously—even when adhering to them makes things complicated or messy. But what if the “origin, background, or views” of materials provided represent an alleged attack on another?  Could the library face liability?

Let’s take a hypothetical: a new documentary called “Burgerworldwide,” alleges that the (fictional[1]) franchise “Burgerworld,” is not only making people morbidly obese, but is engaged in an international conspiracy to fix meat prices.  The local library, which has a robust collection of health-related documentaries, adds a copy of “Burgerworldwide” to its DVD collection.  The local Burgerworld franchisee, who is not only a prominent local citizen, but very active in local politics (and friends with several members of the library’s board), takes offense.  Could the library face liability?

In New York, wrongly accusing a person (or company) of a crime they did not commit can be grounds for a defamation claim.  However, for a library to be found liable for such a claim it would have to repeat, independently and of its own volition, the erroneous accusation.  "[U]nder New York law, 'all who take part in the procurement, composition and publication of a libel are responsible in law and equally so.'" [2]

Simply owning and lending a movie (or book) does not meet this test.  I found no case law showing that a library acting simply as the owner and distributor/lender of information, has ever been found liable for defamation in New York. 

Given that, liability for defamation is only actionable if the library (whether or not it adds the documentary to its catalog), promoted  or discussed the movie in a way that independently and knowingly renewed a false accusation of the alleged criminal activity.  To go back to our “Burgerworld” example: if library staff made a short recording of themselves eating Burgerworld products while saying “Our local franchise is criminally fixing prices…we can prove it!”[3] and then put the recording on Facebook , that could serve as the a basis for a claim[4] (note: having a basis to make a claim is not the same as winning the claim).

In my hypothetical, a more likely scenario than a threat of a law suit would be attempted pressure on library’s fiduciaries (trustees, board members, ED) by the local franchise owner to have the library remove the movie from its catalog.  This is why training for trustees, and referring to the established guidance for library leaders, is critical.  By consistently following its clearly defined written policies for collection development—including its procedure for review of challenged resources—a library can protect itself when acquiring and promoting access to potentially inflammatory material. 

Isn’t it nice when a commitment to library values also protects a function critical to a democratic society?

 


[1] Yes, this title was inspired by Weird Al’s video, “Fat,” as well as the place of employment of “Beavis & Butthead.” I am a fan. 

[2] Treppel, 2005 U.S. Dist. LEXIS 18511, 2005 WL 2086339, at *3 (quoting Brown v. Mack, 185 Misc. 368, 56 N.Y.S.2d 910, 916 (N.Y. Sup. Ct., Kings Cnty. 1945)); see also Conte v. Newsday, Inc., 703 F. Supp. 2d 126, 147 n.19 (E.D.N.Y. 2010) (same). 

 

[3] I know none of you would do this, and I trust that your accession policies contemplate the responsible sourcing of non-fiction material.

 

[4] Remember, any time your institution is threatened with legal action (even if groundless), before making a response, it is best to alert your attorney, alert your fiduciaries, and just as critically, alert your insurance carrier.

 

 

Tags: Defamation, Collection Management, Policy

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.