BILL NUMBER:S5224

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) to authorize the release of certain records of 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 MIL § 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.

Justification:  Currently, the MHL allows for the release of records
of deceased residents of OPWDD facilities only to those "qualified"
family members specified in MIL § 13.05, 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 on a case-by-case basis.
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 family 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.

PRIOR LEGISLATIVE HISTORY:  2011/12 - S.3168-A - Passed the Senate in
2011 and 2012

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.