S T A T E O F N E W Y O R K
________________________________________________________________________
839
2021-2022 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 6, 2021
___________
Introduced by M. of A. GOTTFRIED, ABINANTI, McDONOUGH, COLTON, GALEF,
SAYEGH, DeSTEFANO, DARLING -- read once and referred to the Committee
on Health
AN ACT to amend the public health law and the mental hygiene law, in
relation to patient health information and medical records
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 17 of the public health law, as amended by chapter
165 of the laws of 1991, the first undesignated paragraph as amended by
chapter 322 of the laws of 2017, is amended to read as follows:
§ 17. Release of [medical] HEALTH records TO A DESIGNATED HEALTH CARE
PROVIDER. 1. Upon the written request of any competent patient, parent
or guardian of an infant, a guardian appointed pursuant to article
eighty-one of the mental hygiene law, or conservator of a conservatee,
[an examining, consulting or treating physician or hospital must] A
HEALTH CARE PROVIDER WHO HAS PROVIDED PROFESSIONAL HEALTH CARE SERVICES
PERTAINING TO A PATIENT SHALL release and deliver, exclusive of NON-
CLINICAL personal notes of the [said physician or hospital] HEALTH CARE
PROVIDER, copies of all [x-rays, medical] REQUESTED HEALTH records [and
test records including all laboratory tests] regarding that patient to
any other designated [physician or hospital provided, however, that]
HEALTH CARE PROVIDER. HOWEVER, such records concerning the treatment of
an infant patient for venereal disease or the performance of an abortion
operation upon such infant patient shall not be released or in any
manner be made available to the parent or guardian of such infant, and
provided, further, that original mammograms, rather than copies thereof,
shall be released and delivered.
[Either the physician or hospital] 2. A HEALTH CARE PROVIDER incurring
the expense of providing copies of [x-rays, medical] HEALTH records [and
test records including all laboratory tests] pursuant to the provisions
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00039-01-1
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of this section may impose a reasonable charge to be paid by the person
requesting the release and deliverance of such records as reimbursement
[for such] NOT TO EXCEED THE HEALTH CARE PROVIDER'S ACTUAL expenses,
provided, however, that the [physician or hospital] HEALTH CARE PROVIDER
may not impose a charge for copying an original mammogram when the
original has been released or delivered to any competent patient, parent
or guardian of an infant, a guardian appointed pursuant to article
eighty-one of the mental hygiene law, or a conservator of a conservatee
and provided, further, that any charge for delivering an original mammo-
gram pursuant to this section shall not exceed the documented ACTUAL
costs associated therewith[. However, the reasonable charge], WHICH for
paper copies shall not exceed seventy-five cents per page. A release of
records under this section shall not be denied solely because of inabil-
ity to pay. No charge may be imposed under this section for providing,
releasing, or delivering medical records or copies of medical records
where requested for the purpose of supporting an application, claim or
appeal for any government benefit or program, provided that, where a
provider maintains medical records in electronic form, it shall provide
the copy in either electronic or paper form, as required by the govern-
ment benefit or program, or at the patient's request.
3. WHERE A HEALTH CARE PROVIDER PROVIDES HEALTH CARE PROFESSIONAL
SERVICES AS AN EMPLOYEE OF OR UNDER CONTRACT WITH ANOTHER HEALTH CARE
PROVIDER, COMPLIANCE WITH THIS SECTION SHALL BE THE RESPONSIBILITY OF
THE HEALTH CARE PROVIDER THAT EMPLOYS OR CONTRACTS FOR THE SERVICES OF
THE OTHER HEALTH CARE PROVIDER, UNLESS THE TERMS OF THE EMPLOYMENT OR
CONTRACT EXPLICITLY PROVIDE OTHERWISE. IF A HEALTH CARE PROVIDER
RECEIVES A REQUEST UNDER THIS SECTION AND COMPLIANCE IS THE RESPONSIBIL-
ITY OF A DIFFERENT HEALTH CARE PROVIDER UNDER THIS SUBDIVISION, THE
HEALTH CARE PROVIDER RECEIVING THE REQUEST SHALL IMMEDIATELY INFORM THE
REQUESTING PARTY TO WHICH HEALTH CARE PROVIDER THE REQUEST SHOULD BE
DIRECTED.
4. For the purposes of this section the [term "laboratory tests" shall
include] FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A) "HEALTH RECORD" INCLUDES ANY PATIENT INFORMATION AS DEFINED IN
SECTION EIGHTEEN OF THIS TITLE, X-RAYS AND OTHER IMAGES, AND RECORDS OF
LABORATORY TESTS INCLUDING but not [be] limited to tests and examina-
tions administered in clinical laboratories or blood banks as those
terms are defined in section five hundred seventy-one of this chapter.
(B) "HEALTH CARE PROVIDER" AND "HEALTH CARE PRACTITIONER" HAVE THE
SAME MEANINGS AS DEFINED IN SECTION EIGHTEEN OF THIS TITLE.
(C) "PROFESSIONAL HEALTH CARE SERVICES" MEANS THE SERVICES OF A HEALTH
CARE PROVIDER EXAMINING, ASSESSING, TREATING OR CONSULTING IN RELATION
TO A PATIENT OR PATIENT'S CONDITION, WITHIN THE SCOPE OF PRACTICE OF A
HEALTH CARE PRACTITIONER.
§ 2. Paragraphs (c), (d) and (e) of subdivision 1 of section 18 of the
public health law, paragraphs (c) and (d) as added by chapter 497 of the
laws of 1986, paragraph (e) as amended by chapter 2 of the laws of 1990,
and the closing paragraph of paragraph (e) as amended by chapter 576 of
the laws of 1998, are amended and a new paragraph (k) is added to read
as follows:
(c) "Health care facility" or "facility" means a hospital as defined
in article twenty-eight of this chapter, a home care services agency as
defined in article thirty-six of this chapter, a hospice as defined in
article forty of this chapter, a health maintenance organization as
defined in article forty-four of this chapter, [and] a shared health
facility as defined in article forty-seven of this chapter; OR AN ENTITY
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THAT PROVIDES THE HEALTH CARE PROFESSIONAL SERVICES OF A HEALTH CARE
PROVIDER BY EMPLOYING OR CONTRACTING FOR THE HEALTH CARE PROFESSIONAL
SERVICES OF A HEALTH CARE PROVIDER.
(d) "Health care practitioner" or "practitioner" means a person
licensed under article one hundred thirty-one (MEDICINE), one hundred
thirty-one-B (PHYSICIAN ASSISTANTS), ONE HUNDRED THIRTY-ONE-C (SPECIAL-
IST ASSISTANT), one hundred thirty-two (CHIROPRACTIC), one hundred thir-
ty-three (DENTISTRY AND DENTAL HYGIENE AND REGISTERED DENTAL ASSISTING),
ONE HUNDRED THIRTY-FOUR (LICENSED PERFUSIONISTS), one hundred thirty-six
(PHYSICAL THERAPY AND PHYSICAL THERAPY ASSISTANTS), ONE HUNDRED THIRTY-
SEVEN (PHARMACY), one hundred thirty-nine (NURSING), ONE HUNDRED FORTY
(PROFESSIONAL MIDWIFERY PRACTICE), one hundred forty-one (PODIATRY), one
hundred forty-three (OPTOMETRY), one hundred forty-four (OPHTHALMIC
DISPENSING), one hundred fifty-three (PSYCHOLOGY), one hundred fifty-
four (SOCIAL WORK), ONE HUNDRED FIFTY-FIVE (MASSAGE THERAPY), one
hundred fifty-six [or] (OCCUPATIONAL THERAPY), ONE HUNDRED FIFTY-SEVEN
(DIETETICS AND NUTRITION), one hundred fifty-nine (SPEECH-LANGUAGE
PATHOLOGISTS OR AUDIOLOGISTS), ONE HUNDRED SIXTY (ACUPUNCTURE), ONE
HUNDRED SIXTY-TWO (ATHLETIC TRAINERS), ONE HUNDRED SIXTY-THREE (MENTAL
HEALTH PRACTITIONERS), ONE HUNDRED SIXTY-FOUR (RESPIRATORY THERAPISTS
AND RESPIRATORY THERAPY TECHNICIANS), ONE HUNDRED SIXTY-FIVE (CLINICAL
LABORATORY TECHNOLOGY PRACTICE), ONE HUNDRED SIXTY-SIX (MEDICAL PHYSICS
PRACTICE), OR ONE HUNDRED SIXTY-SEVEN (APPLIED BEHAVIOR ANALYSIS) of the
education law [or a person certified under section twenty-five hundred
sixty of this chapter].
(e) (I) "Patient information" or "information" means: any information
OR HEALTH RECORD concerning or relating to the examination, health
assessment including, but not limited to, a health assessment for insur-
ance and employment purposes [or], CONSULTING IN RELATION TO treatment
of PROVIDING DRUGS OR DEVICES, OR PROVIDING PROFESSIONAL HEALTH CARE
SERVICES PERTAINING TO an identifiable subject maintained or possessed
by a health care [facility or health care practitioner who] PROVIDER
WHICH has provided or is providing services [for assessment of a health
condition including, but not limited to, a health assessment for insur-
ance and employment purposes or has treated or is treating such subject,
except (i)]. IT SHALL INCLUDE X-RAYS AND OTHER IMAGES, AND RECORDS OF
LABORATORY TESTS INCLUDING BUT NOT LIMITED TO TESTS AND EXAMINATIONS
ADMINISTERED IN CLINICAL LABORATORIES OR BLOOD BANKS AS THOSE TERMS ARE
DEFINED IN SECTION FIVE HUNDRED SEVENTY-ONE OF THIS CHAPTER. IT SHALL
INCLUDE RECORDS OF CHARGES TO, AND PAYMENTS RECEIVED FROM, THE PATIENT
OR IDENTIFIABLE SUBJECT OR ANY OTHER PARTY ON BEHALF OF THE PATIENT OR
IDENTIFIABLE SUBJECT, FOR ANY SUCH SERVICES, DRUGS OR DEVICES.
(II) "PATIENT INFORMATION" OR "INFORMATION" SHALL NOT INCLUDE (A)
information and clinical records subject to the provisions of section
[23.05 or] 33.13 of the mental hygiene law[, (ii)]; (B) NON-CLINICAL
personal notes and observations of a health care practitioner, provided
that such personal notes and observations are maintained by the practi-
tioner and not disclosed by the practitioner to any other person after
January first, nineteen hundred eighty-seven[, (iii)]; (C) information
maintained by a practitioner, concerning or relating to the prior exam-
ination or treatment of a subject received from another practitioner,
provided however, that such information may be requested by the subject
directly from such other practitioner in accordance with the provisions
of this section, AND PROVIDED FURTHER THAT THIS CLAUSE DOES NOT APPLY TO
ANY REFERRAL, ORDER, AUTHORIZATION, OR PRESCRIPTION RECEIVED FROM THE
OTHER PRACTITIONER; and [(iv)] (D) data disclosed to a practitioner in
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confidence by other persons on the basis of an express condition that
such data would never be disclosed to the subject or other persons,
provided that such data has never been disclosed to any other person. If
at any time such personal notes and observations or such data is
disclosed, it shall be considered patient information for purposes of
this section. For purposes of this subdivision, "disclosure to any other
person" shall not include disclosures made to practitioners as part of a
consultation or referral during the treatment of the subject, to persons
reviewing information or records in the ordinary course of ensuring that
a provider is in compliance with applicable quality of care, licensure
or accreditation standards, to an employee or official of a federal,
state or local agency for the sole purpose of conducting an audit in the
course of his or her official duties, to the statewide planning and
research cooperative system, to other persons pursuant to a court order,
to governmental agencies, insurance companies licensed pursuant to the
insurance law and other third parties requiring information necessary
for payments to be made to or on behalf of patients, to qualified
researchers, to the [state board for professional medical conduct]
DEPARTMENT OF HEALTH OR THE DEPARTMENT OF EDUCATION when such [board]
requests such information in the exercise of its statutory function, to
an insurance carrier insuring, or an attorney consulted by, a health
care provider, or to a health maintenance organization certified pursu-
ant to article forty-four of this chapter or licensed pursuant to the
insurance law, or to the committee or a court pursuant to the provisions
of this section.
(III) For purposes of this subdivision treatment of a subject shall
not include diagnostic services, except mammography, performed by a
practitioner at the request of another health care practitioner
provided, however, that such information, and mammograms, may be
requested by the subject directly from the practitioner at whose request
such diagnostic services were performed, in accordance with the
provisions of this section.
(K) "PROFESSIONAL HEALTH CARE SERVICES" MEANS THE SERVICES OF A HEALTH
CARE PROVIDER EXAMINING, ASSESSING, TREATING OR CONSULTING IN RELATION
TO AN IDENTIFIABLE SUBJECT OF AN IDENTIFIABLE SUBJECT'S CONDITION, WITH-
IN THE SCOPE OF PRACTICE OF A HEALTH CARE PRACTITIONER.
§ 3. Paragraph (e) of subdivision 2 of section 18 of the public health
law, as amended by chapter 322 of the laws of 2017, is amended and a new
paragraph (j) is added to read as follows:
(e) The provider may impose a reasonable charge for all inspections
and copies, not exceeding the REASONABLE AND ACTUAL costs incurred by
such provider, provided, however, that a provider may not impose a
charge for copying an original mammogram when the original has been
furnished to any qualified person and provided, further, that any charge
for furnishing an original mammogram pursuant to this section shall not
exceed the documented costs associated therewith[. However, the reason-
able charge], WHICH for paper copies shall not exceed seventy-five cents
per page. A qualified person shall not be denied access to patient
information solely because of inability to pay. No charge may be imposed
under this section for providing, releasing, or delivering patient
information or copies of patient information where requested for the
purpose of supporting an application, claim or appeal for any government
benefit or program, provided that, where a provider maintains patient
information in electronic form, it shall provide the copy in either
electronic or paper form, as required by the government benefit or
program, or at the patient's request.
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(J) WHERE A HEALTH CARE PROVIDER PROVIDES HEALTH CARE PROFESSIONAL
SERVICES AS AN EMPLOYEE OF OR UNDER CONTRACT WITH ANOTHER HEALTH CARE
PROVIDER, COMPLIANCE WITH THIS SECTION SHALL BE THE RESPONSIBILITY OF
THE HEALTH CARE PROVIDER THAT EMPLOYS OR CONTRACTS FOR THE SERVICES OF
THE OTHER HEALTH CARE PROVIDER, UNLESS THE TERMS OF THE EMPLOYMENT OR
CONTRACT EXPLICITLY PROVIDE OTHERWISE. IF A HEALTH CARE PROVIDER
RECEIVES A REQUEST UNDER THIS SECTION AND COMPLIANCE IS THE RESPONSIBIL-
ITY OF A DIFFERENT HEALTH CARE PROVIDER UNDER THIS SUBDIVISION, THE
HEALTH CARE PROVIDER RECEIVING THE REQUEST SHALL IMMEDIATELY INFORM THE
REQUESTING PARTY TO WHICH HEALTH CARE PROVIDER THE REQUEST SHOULD BE
DIRECTED.
§ 4. Paragraphs 1, 3 and 4 of subdivision (a) of section 33.16 of the
mental hygiene law, paragraphs 1 and 4 as amended by chapter 226 of the
laws of 1991, and paragraph 3 as amended by chapter 37 of the laws of
2011, are amended to read as follows:
1. "Clinical record" means any information concerning or relating to
the examination or treatment of, CONSULTING IN RELATION TO TREATMENT OF,
PROVIDING DRUGS OR DEVICES, OR PROVIDING PROFESSIONAL MENTAL OR BEHAV-
IORAL HEALTH CARE SERVICES PERTAINING TO an identifiable patient or
client maintained or possessed by a facility which has treated or is
treating such patient or client, except data disclosed to a practitioner
in confidence by other persons on the basis of an express condition that
such data would never be disclosed to the patient or client or other
persons, provided that such data has never been disclosed by the practi-
tioner or a facility to any other person. If at any time such data is
disclosed, it shall be considered clinical records for the purposes of
this section. For purposes of this subdivision, "disclosure to any
other person" shall not include disclosures made pursuant to section
33.13 of this article, to practitioners as part of a consultation or
referral during the treatment of the patient or client, to the statewide
planning and research cooperative system, or to the committee or a court
pursuant to the provisions of this section or to an insurance carrier
insuring, or an attorney consulted by, a facility. CLINICAL RECORD
SHALL INCLUDE X-RAYS AND OTHER IMAGES, AND RECORDS OF LABORATORY TESTS
INCLUDING BUT NOT LIMITED TO TESTS AND EXAMINATIONS ADMINISTERED IN
CLINICAL LABORATORIES OR BLOOD BANKS AS THOSE TERMS ARE DEFINED IN
SECTION FIVE HUNDRED SEVENTY-ONE OF THE PUBLIC HEALTH LAW. IT SHALL
INCLUDE RECORDS OF CHARGES TO, AND PAYMENTS RECEIVED FROM, THE PATIENT
OR IDENTIFIABLE SUBJECT OR ANY OTHER PARTY ON BEHALF OF THE PATIENT OR
IDENTIFIABLE SUBJECT, FOR ANY SUCH SERVICES, DRUGS OR DEVICES.
3. "Facility" means a facility as defined in section 1.03 of this
chapter, a program requiring approval for operation pursuant to article
thirty-two of this chapter, institutions offering training in psychoth-
erapy, psychoanalysis and related areas chartered pursuant to section
two hundred sixteen of the education law, or, notwithstanding section
1.03 of this chapter, any provider of services for persons with mental
illness or developmental disabilities which is operated by, under
contract with, receives funding from, or is otherwise approved to render
services by, a director of community services pursuant to article
forty-one of this chapter or one or both of the offices, including any
such provider which is exempt from the requirement for an operating
certificate under article sixteen or article thirty-one of this chapter;
OR AN ENTITY THAT PROVIDES MENTAL OR BEHAVIORAL HEALTH PROFESSIONAL
SERVICES BY EMPLOYING OR CONTRACTING FOR THE PROFESSIONAL SERVICES OF A
MENTAL HEALTH PRACTITIONER.
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4. "Mental health practitioner" or "practitioner" means a person
employed by or rendering a service at a facility maintaining the clin-
ical record WHO IS licensed under article one hundred thirty-one of the
education law (MEDICINE) who practices psychiatry or a person licensed
under article one hundred thirty-nine (NURSING), one hundred fifty-three
[or] (PSYCHOLOGY), one hundred fifty-four (SOCIAL WORK), ONE HUNDRED
SIXTY-THREE (MENTAL HEALTH PRACTITIONERS), OR ONE HUNDRED SIXTY-SEVEN
(APPLIED BEHAVIOR ANALYSIS) of the education law or any other person not
prohibited by law from providing mental health or developmental disabil-
ities services.
§ 5. Paragraph 6 of subdivision (b) of section 33.16 of the mental
hygiene law, as amended by chapter 322 of the laws of 2017, is amended
to read as follows:
6. The facility may impose a reasonable charge for all inspections and
copies, not exceeding the DOCUMENTED ACTUAL costs incurred by such
provider[. However, the reasonable charge] WHICH for paper copies shall
not exceed seventy-five cents per page. A qualified person shall not be
denied access to the clinical record solely because of inability to pay.
No charge may be imposed under this section for providing, releasing, or
delivering clinical records or copies of clinical records where
requested for the purpose of supporting an application, claim or appeal
for any government benefit or program, provided that, where a provider
maintains clinical records in electronic form, it shall provide the copy
in either electronic or paper form, as required by the government bene-
fit or program, or at the patient's request.
§ 6. Section 33.16 of the mental hygiene law is amended by adding a
new subdivision (l) to read as follows:
(L) THIS SECTION SHALL NOT BE CONSTRUED TO SUPPLANT OR DIMINISH A
RIGHT OR BENEFIT THAT ANY PATIENT, QUALIFIED PERSON OR PERSON ACTING ON
BEHALF OF A PATIENT UNDER SECTIONS SEVENTEEN OR EIGHTEEN OF THE PUBLIC
HEALTH LAW HAS UNDER EITHER SUCH SECTIONS OF THE PUBLIC HEALTH LAW.
§ 7. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.