BILL NUMBER:S3168A

TITLE OF BILL:

An act to amend the mental hygiene law, in relation to authorizing the
release of certain records of deceased residents of OPWDD operated or
certified facilities to family members upon written request

PURPOSE OF THE BILL:

This bill would amend the Mental Hygiene Law (MHL) for the
commissioner to promulgate regulations to cover the release of certain
records of a deceased residents of facilities certified or operated by
the Office of People with Developmental Disabilities (OPWDD).

SUMMARY OF PROVISIONS:

Section 1 of the bill would add a new subdivision (f) to MHL § 13.09
and reletter subdivision (f) to subdivision (h) to allow the
Commissioner of OPWDD to promulgate regulations that would provide for
the release of certain records of deceased residents of OPWDD
certified or operated facilities to a family member other than a
qualified person as defined by MHL § 33.16

Section 2 of the bill would amend MHL § 33.13(c) by adding a new
paragraph (15) upon a written request by the physician of a family
              

member when there is a demonstrable medical need for such information
as it is relevant to the family member's own health care. The
Commissioner shall promulgate regulations to define family member for
purpose of this section.

Section 3 of the bill provides that section 1 of the bill would take
effect on the one hundred eightieth day after it shall become law and
section 2 of the bill would take effect immediately.

EXISTING LAW:

The MHL does not allow for release of information about a deceased
individual to a family member who is not a "qualified person" pursuant
to MHL §§ 33.13, 33.16. Only certain qualified family members, who are
parents, a spouse or an adult child of the individual, may obtain
"information.

In accordance with a national movement and laws in other states to
give dignity to institutionalized persons with-developmental
disabilities who, upon their death, were usually assigned only a
number in a state facility cemetery or otherwise had an unmarked
grave, Chapter 520 of the Laws of 2008 was enacted to provide for
release of very limited information about a deceased resident of an
OPWDD facility (i.e.  names and birth/death dates) for the sole
purpose of inscribing a cemetery marker.

PRIOR LEGISLATIVE HISTORY:
2011: S.3168A Passed the Senate unanimously.

STATEMENT IN SUPPORT:


Currently, the MHL allows for the release of records of deceased
residents of OPWDD facilities only to those "qualified" family members
specified in MHL § 13.09, namely, a parent, a spouse, or an adult
child of such individual. This bill would authorize the commissioner
of OPWDD to develop regulations in order to provide certain
information to other family members. The Commissioner would also
define family member through regulations. Family members may learn of
the existence of their relative only after the relative's death, and
may have no ability to ascertain whether their relative even existed.
The types of information to be released could include the person's
name, dates of birth, death and admission, discharge/release, cause of
death, diagnosis, treatment, services provided, employment and
residential history. Where the commissioner has determined that the
release of information is appropriate pursuant to the standards set
forth in regulation, this bill would allow for release unless the
individual or a qualified family member had objected during his or her
lifetime and such objection was documented in the individual's
services plan.

The bill would also amend MHL § 33.13 by adding a new paragraph 15 to
provide for the release of records to a physician of a family member,
who is not a qualified person, when the family member has a
demonstrable medical need for such information. This provision would
bring state law into compliance with the federal Health Insurance
portability and Accountability Act (HIPAA) which allows for release of
clinical information to a family member for this specific purpose.

BUDGET IMPLICATIONS:
This proposal has no fiscal implications.

EFFECTIVE DATE:
Section 1 of the bill would take effect 180 days after enactment and
Section 2 would take effect immediately.