S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6407

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              March 3, 2009
                               ___________

Introduced by M. of A. ORTIZ, DINOWITZ, JOHN, SCARBOROUGH, COOK, BING --
  Multi-Sponsored  by  --  M.  of  A. BRENNAN, GALEF, GOTTFRIED, HIKIND,
  HOOPER, JACOBS, J. RIVERA, ROBINSON, TOWNS -- read once  and  referred
  to the Committee on Health

AN  ACT  to  amend the public health law, in relation to restricting the
  disclosure of health care information

  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
18-b to read as follows:
  S 18-B. DISCLOSURE OF HEALTH CARE INFORMATION.  1.  AS  USED  IN  THIS
SECTION:
  (A) "SUBJECT" MEANS AN INDIVIDUAL CONCERNING WHOM HEALTH CARE INFORMA-
TION IS MAINTAINED OR POSSESSED.
  (B) "HEALTH CARE" MEANS ANY PREVENTIVE, DIAGNOSTIC, THERAPEUTIC, REHA-
BILITATIVE,  MAINTENANCE  OR  PALLIATIVE  CARE,  COUNSELING,  SERVICE OR
PROCEDURE PROVIDED BY A MEDICAL PROFESSIONAL OR  MEDICAL  CARE  FACILITY
WITH  RESPECT  TO  A SUBJECT'S PHYSICAL OR MENTAL CONDITION OR AFFECTING
THE STRUCTURE OR FUNCTION OF THE HUMAN BODY OR ANY PART THEREOF, INCLUD-
ING BUT NOT LIMITED TO, BANKING OF BLOOD, SPERM, ORGANS OR OTHER TISSUE;
AND ANY SALE OR DISPENSING OF ANY DRUG, SUBSTANCE, DEVICE, EQUIPMENT  OR
OTHER  ITEM  TO  A  SUBJECT  OR  FOR  A  SUBJECT'S  USE,  PURSUANT  TO A
PRESCRIPTION.
  (C) "HEALTH CARE INFORMATION" MEANS ANY DATA OR  INFORMATION,  WHETHER
ORAL OR RECORDED IN ANY FORM OR MEDIUM THAT IDENTIFIES OR CAN READILY BE
ASSOCIATED WITH THE IDENTITY OF THE SUBJECT AND RELATES TO THE SUBJECT'S
HEALTH  CARE;  OR  IS  OBTAINED IN THE COURSE OF A SUBJECT'S HEALTH CARE
FROM A MEDICAL PROFESSIONAL OR MEDICAL CARE FACILITY, FROM THE  SUBJECT,
FROM  A MEMBER OF THE SUBJECT'S FAMILY INCLUDING SPOUSE, PARENT OR LEGAL
GUARDIAN OR AN INDIVIDUAL WITH WHOM THE SUBJECT HAS  A  RELATIONSHIP  OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09920-01-9

              

A. 6407                             2

ANY  PATIENT  INFORMATION AS DEFINED IN PARAGRAPH (E) OF SUBDIVISION ONE
OF SECTION EIGHTEEN OF THIS TITLE.
  (D)  "MEDICAL  PROFESSIONAL" MEANS ANY PERSON LICENSED OR CERTIFIED TO
PROVIDE HEALTH CARE SERVICES INCLUDING BUT NOT  LIMITED  TO  PHYSICIANS,
DENTISTS,  CLINICAL  PSYCHOLOGISTS,  PODIATRISTS, CHIROPRACTORS, NURSES,
OPTOMETRISTS, PHARMACISTS, CLINICAL DIETITIANS, OPHTHALMOLOGISTS,  PHYS-
ICAL  OR  OCCUPATIONAL  THERAPISTS,  CERTIFIED  SOCIAL WORKERS OR SPEECH
THERAPISTS.
  (E) "MEDICAL CARE FACILITY" MEANS ANY INSTITUTION THAT IS LICENSED  TO
PROVIDE  HEALTH  CARE  SERVICES  INCLUDING BUT NOT LIMITED TO HOSPITALS,
SKILLED NURSING HOME FACILITIES, HOME HEALTH AGENCIES, MEDICAL  CLINICS,
LABORATORIES,  REHABILITATION AGENCIES, PUBLIC HEALTH AGENCIES OR HEALTH
MAINTENANCE ORGANIZATIONS.
  (F) "PERSONAL INFORMATION" MEANS ANY INDIVIDUALLY IDENTIFIABLE  INFOR-
MATION  GATHERED IN CONNECTION WITH HEALTH CARE FROM WHICH JUDGMENTS CAN
BE MADE ABOUT A SUBJECT'S CHARACTER, HABITS, MODE OF LIVING, AVOCATIONS,
FINANCES, OCCUPATION, GENERAL REPUTATION, CREDIT,  HEALTH  CONDITION  OR
OTHER   PERSONAL   CHARACTERISTICS.   PERSONAL  INFORMATION  INCLUDES  A
SUBJECT'S NAME, ADDRESS AND TELEPHONE NUMBER AND "MEDICAL CARE  INFORMA-
TION".
  (G) "PERSON" MEANS ANY NATURAL PERSON, CORPORATION, ASSOCIATION, PART-
NERSHIP OR OTHER LEGAL ENTITY.
  (H) "COMMERCIAL PURPOSE" MEANS ANY PURPOSE WHICH HAS FINANCIAL GAIN AS
A MAJOR OBJECTIVE.
  2. NO PERSON SHALL DISCLOSE HEALTH CARE INFORMATION OR PERSONAL INFOR-
MATION  TO A PERSON WHO ENGAGES IN THE BUSINESS OF ACCESSING AND COMPIL-
ING INFORMATION FOR COMMERCIAL PURPOSE OR WHOSE USE OF SUCH  INFORMATION
WILL BE IN CONNECTION WITH THE MARKETING OF A PRODUCT OR SERVICE WITHOUT
THE  EXPLICIT  WRITTEN  AUTHORIZATION OF THE SUBJECT. SUCH AUTHORIZATION
SHALL BE WRITTEN IN PLAIN LANGUAGE; DATED; SPECIFY THE  PERSON  TO  WHOM
THE  HEALTH CARE INFORMATION OR PERSONAL INFORMATION SHALL BE DISCLOSED;
SPECIFY THE PURPOSE FOR WHICH THE HEALTH CARE  INFORMATION  OR  PERSONAL
INFORMATION IS TO BE USED; SPECIFY THE LENGTH OF TIME SUCH AUTHORIZATION
SHALL  REMAIN  VALID;  AND  SHALL ADVISE THE SUBJECT THAT SUCH PERSON IS
ENTITLED TO RECEIVE A COPY OF THE AUTHORIZATION FORM.
  3. ANY AGREEMENT PURPORTING TO WAIVE THE PROVISIONS OF THIS SECTION IS
HEREBY PROHIBITED AND DECLARED NULL AND VOID AND AGAINST PUBLIC POLICY.
  4. IN ADDITION TO OR IN LIEU  OF  ANY  CRIMINAL  PROCEEDING  AVAILABLE
UNDER THIS SECTION, WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION,
APPLICATION  MAY  BE  MADE  BY  THE  ATTORNEY GENERAL IN THE NAME OF THE
PEOPLE OF THE STATE OF NEW YORK TO A COURT OR JUSTICE  HAVING  JURISDIC-
TION  BY A SPECIAL PROCEEDING TO ISSUE AN INJUNCTION, AND UPON NOTICE TO
THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO  ENJOIN  AND  RESTRAIN  THE
CONTINUANCE  OF SUCH VIOLATIONS; AND IF IT SHALL APPEAR TO THE SATISFAC-
TION OF THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN  FACT,  VIOLATED
THIS  SECTION,  AN  INJUNCTION  MAY  BE ISSUED BY SUCH COURT OR JUSTICE,
ENJOINING AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT REQUIRING PROOF
THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED  THEREBY.  IN  ANY
SUCH  PROCEEDING,  THE COURT MAY MAKE ALLOWANCES TO THE ATTORNEY GENERAL
AS PROVIDED IN PARAGRAPH SIX OF SUBDIVISION (A) OF SECTION  EIGHTY-THREE
HUNDRED  THREE  OF THE CIVIL PRACTICE LAW AND RULES, AND DIRECT RESTITU-
TION. WHENEVER THE COURT  SHALL  DETERMINE  THAT  A  VIOLATION  OF  THIS
SECTION  HAS  OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE
THAN ONE THOUSAND DOLLARS FOR EACH VIOLATION.  IN  CONNECTION  WITH  ANY
SUCH  PROPOSED  APPLICATION,  THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE

A. 6407                             3

PROOF AND MAKE A DETERMINATION  OF  THE  RELEVANT  FACTS  AND  TO  ISSUE
SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
  5. ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS HEALTH CARE INFORMA-
TION  CONCERNING A SUBJECT UNDER FALSE PRETENSES SHALL, UPON CONVICTION,
BE FINED NOT MORE THAN ONE THOUSAND DOLLARS OR IMPRISONED NOT MORE  THAN
ONE YEAR, OR BOTH.
  6.  IN ADDITION TO THE RIGHT OF ACTION GRANTED TO THE ATTORNEY GENERAL
PURSUANT TO THIS SECTION, ANY PERSON WHO HAS BEEN INJURED BY A VIOLATION
OF THIS SECTION MAY BRING AN ACTION IN HIS OR HER NAME TO RECOVER HIS OR
HER ACTUAL DAMAGES OR ONE HUNDRED DOLLARS,  WHICHEVER  IS  GREATER.  THE
COURT, MAY IN ITS DISCRETION, INCREASE THE AWARD OF DAMAGES TO AN AMOUNT
NOT  TO  EXCEED  THREE  TIMES  THE  ACTUAL  DAMAGES,  UP TO ONE THOUSAND
DOLLARS, IF THE  COURT  FINDS  THE  DEFENDANT,  WILLINGLY  OR  KNOWINGLY
VIOLATED THIS SECTION.
  7.  THE  COURT  SHALL AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING
PLAINTIFF.
  8. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT CARE MANAGE-
MENT  EDUCATIONAL  COMMUNICATIONS  PROVIDED  TO  A  PATIENT  ABOUT   THE
PATIENT'S  HEALTH CONDITION, ADHERENCE TO A PRESCRIBED COURSE OF THERAPY
OR OTHER INFORMATION ABOUT THE DRUG BEING DISPENSED.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.