S T A T E O F N E W Y O R K
________________________________________________________________________
837
2023-2024 Regular Sessions
I N S E N A T E
January 6, 2023
___________
Introduced by Sen. RIVERA -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the public health law, in relation to protecting the
confidentiality of vaccine information; and to repeal provisions of
the public health law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 11-a of section 2168 of the public health law,
as added by a chapter of the laws of 2022, amending the public health
law relating to protecting the confidentiality of vaccine information,
as proposed in legislative bills numbers S. 6541-A and A. 7326-A, is
amended to read as follows:
11-a. The commissioner, or in the city of New York, the commissioner
of the department of health and mental hygiene, may only share registry
information MAINTAINED BY THE DEPARTMENT, OR IN THE CASE OF THE CITYWIDE
IMMUNIZATION REGISTRY, THE CITY OF NEW YORK UNDER THE PROVISIONS OF THIS
SECTION with the federal Centers for Disease Control and Prevention, or
successor agency, for public health purposes in summary, statistical,
aggregate, or other form such that no individual person can be identi-
fied, except that either such commissioner may disclose identifiable
registrant information to the federal Centers for Disease Control and
Prevention, or its successor agency, when the commissioner has deter-
mined that the disclosure is in the best interests of the registrant or
will contribute to the protection of public health[,] AND that the
objective of the disclosure cannot be served by disclosure limited to
de-identified information, [and] OR the federal health officials have
committed in writing not to redisclose to or share registrant informa-
tion with any other federal agency, including but not limited to the
department of homeland security, immigration and customs enforcement,
customs and border protection, or any successor agency, or any law
enforcement agency; provided that either such commissioner may forgo the
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04035-01-3
S. 837 2
written commitment if requiring written commitment would result in the
actual withholding of federal funds.
§ 2. Paragraph (d) of subdivision 4 of section 2168 of the public
health law, as amended by a chapter of the laws of 2022, amending the
public health law relating to protecting the confidentiality of vaccine
information, as proposed in legislative bills numbers S. 6541-A and A.
7326-A, is amended to read as follows:
(d) [(i) Identifiable registrant information is not (1) subject to
discovery, subpoena, warrant, or other means of legal compulsion for
release to any person or (2) admissible in any civil, administrative,
criminal, or family court proceeding, except for the purposes of inves-
tigations and prosecutions of allegations of computer tampering or bill-
ing fraud related to vaccination records, fraudulent statements related
to an individual's vaccination status, an act of violence or attempted
violence occurring at the site of a vaccination provider's or vaccine
navigator's business, or medical malpractice. Disclosure for these
purposes shall be subject to in camera review and approval by the court
and, if the use is initiated by a party other than the individual whose
registry information is sought, the information must be highly material
and relevant for the purpose.
(ii) Nothing in this section shall be construed to limit commissioners
of local social services districts or the commissioner of the office of
children and family services from accessing identifiable registrant
information under paragraph (d) of subdivision eight of this section.] A
PERSON, INSTITUTION OR AGENCY TO WHOM SUCH IMMUNIZATION INFORMATION IS
FURNISHED OR TO WHOM, ACCESS TO RECORDS OR INFORMATION HAS BEEN GIVEN,
SHALL NOT DIVULGE ANY PART THEREOF SO AS TO DISCLOSE THE IDENTITY OF
SUCH PERSON TO WHOM SUCH INFORMATION OR RECORD RELATES, EXCEPT INSOFAR
AS SUCH DISCLOSURE IS NECESSARY FOR THE BEST INTERESTS OF THE PERSON OR
OTHER PERSONS, CONSISTENT WITH THE PURPOSES OF THIS SECTION.
§ 3. Paragraphs (f), (g) and (i) of subdivision 1, subparagraph (iii)
of paragraph (c), subparagraphs (ii) and (iv) of paragraph (d) and para-
graph (e) of subdivision 2 and subdivision 3 of section 2169 of the
public health law, as added by a chapter of the laws of 2022, amending
the public health law relating to protecting the confidentiality of
vaccine information, as proposed in legislative bills numbers S. 6541-A
and A. 7326-A, are amended to read as follows:
(f) The term "personal information" shall mean information obtained
from or about an individual, in connection with their registering for
[or receiving] a vaccination, that directly or indirectly identifies,
relates to, describes, is capable of being associated with, or could
reasonably be linked to a particular individual, household, or personal
device. Information is reasonably linkable to an individual, household,
or personal device if it can be used on its own or in combination with
other reasonably available information, [regardless of whether such
other information is held by the vaccine navigator or vaccine provider]
WHEN SUCH INFORMATION IS HELD BY THE VACCINE NAVIGATOR, to identify an
individual, household, or a personal device.
(g) The term "service attendant to the delivery of immunization" shall
mean [scheduling and billing for] FACILITATING an immunization appoint-
ment, sending reminders about immunization, arranging transportation to
or from a vaccine provider, or reporting to the department, the New York
City department of health and mental hygiene, or other local health
agency on whose behalf such vaccine navigator is performing such
services.
S. 837 3
(i) The term "vaccine navigator" shall mean any person that collects
personal information from an individual in order to register that indi-
vidual for immunization or to help that individual register for immuni-
zation, provided the department, a local public health agency, or a
person that administers vaccines OR THEIR DESIGNEES are not vaccine
navigators [if they only store vaccine recipient personal information in
medical records protected under the federal Health Insurance Portability
and Accountability Act of 1996, its implementing regulations, or section
eighteen of this chapter].
(iii) Without consent under this subdivision, personal information and
any evidence derived therefrom shall not be subject to or provided in
response to any legal process or be admissible for any purpose in any
judicial or administrative action or proceeding UNLESS PROVIDED IN
RESPONSE PURSUANT TO WARRANTS, COURT-ORDERED SUBPOENAS, ADMINISTRATIVE
SUBPOENAS, OR GRAND JURY SUBPOENAS.
(ii) A [person] VACCINE NAVIGATOR may only possess or use de-identi-
fied information pertaining to services attendant to the delivery of
immunization if the [person] VACCINE NAVIGATOR maintains technical safe-
guards and policies and procedures that prevent re-identification,
whether intentional or unintentional, of any individual, as may be
required by the commissioner (or the New York city commissioner of
health and mental hygiene, in the case of information collected by or
under authority of the New York city department of health and mental
hygiene. The commissioner (or the New York city commissioner as the case
may be) shall require safeguards, policies and procedures under this
paragraph as the commissioner deems practicable.
[(iv) This section does not prevent disclosure of personal information
sought for the purposes of investigations and prosecutions of allega-
tions of computer tampering or billing fraud related to vaccination
records, fraudulent statements related to an individual's vaccination
status, an act of violence or attempted violence occurring at the site
of a vaccination provider's or vaccine navigator's business, or medical
malpractice, professional discipline, or defense of any claim brought
against a vaccine navigator or provider. Disclosure for these purposes
shall be subject to in camera review and approval by the court and, if
the use is initiated by a party other than the individual whose registry
information is sought, the information must be highly material and rele-
vant for the purpose.]
(e) A vaccine navigator that maintains personal information shall
establish appropriate administrative, technical, and physical safe-
guards, policies, and procedures that ensure the security of that
personal information. The safeguards, policies, and procedures must be
appropriate to the volume and nature of the personal information main-
tained and the size, revenue, and sophistication of the vaccine naviga-
tor and must ensure that personal information is encrypted and protected
at least as much as or more than other confidential information in the
vaccine navigator's possession. The commissioner or, in the city of New
York, the commissioner of the department of health and mental hygiene
[shall] MAY make regulations as reasonably necessary to require that
personal information possessed, used, or under the control of a vaccine
navigator shall be subject to technical safeguards, policies, and proce-
dures for storage, transmission, use, and protection of the information.
The regulations must take into account the different sizes, revenues and
sophistications of different vaccine navigators, as well as the volume
and nature of the personal information they maintain.
S. 837 4
3. Vaccine providers. A vaccine provider shall not delay or condition
the provision of any service attendant to the delivery of immunization
by inviting or requiring an individual seeking vaccination to complete
an application for a customer discount card or account or share personal
information that will be stored outside of a [medical] record protected
under the federal Health Insurance Portability and Accountability Act of
1996, its implementing regulations, or section eighteen of this chapter
for purposes other than services attendant to the delivery of immuniza-
tion, or by engaging in any other activity unrelated to the provision of
such a service that the commissioner designates by regulation.
§ 4. Subdivisions 13, 14, 15, 16, 17, 18 and 20 of section 2180 of the
public health law, as added by a chapter of the laws of 2022, amending
the public health law relating to protecting the confidentiality of
vaccine information, as proposed in legislative bills numbers S. 6541-A
and A. 7326-A, are REPEALED and subdivision 19 is renumbered subdivision
13.
§ 5. Section 2183 of the public health law, as added by a chapter of
the laws of 2022, amending the public health law relating to protecting
the confidentiality of vaccine information, as proposed in legislative
bills numbers S. 6541-A and A. 7326-A, is amended to read as follows:
§ 2183. Immunity passports. 1. Any covered entity that requires proof
of COVID-19 immunization shall permit the use of physical immunity pass-
ports. No covered entity may require digital, electronic, or smart-
phone-based proof of immunity. NOTWITHSTANDING THIS SECTION, ANYONE
REQUIRING AN IMMUNIZATION PASSPORT SHALL ACCEPT A VALID COVID-19 VACCI-
NATION RECORD CARD ALLOCATED TO COVID-19 VACCINE PROVIDERS BY THE
CENTERS FOR DISEASE CONTROL AND PREVENTION FOR THAT PURPOSE. THE
PROVISIONS OF THIS SECTION SHALL APPLY TO VALID COVID-19 VACCINATION
RECORD CARDS ALLOCATED TO COVID-19 VACCINE PROVIDERS BY THE CENTERS FOR
DISEASE CONTROL AND PREVENTION.
2. [Any covered entity that requires the use of an immunity passport
shall delete any personal information derived from the immunity passport
about the individual to whom the immunity passport pertains within twen-
ty-four hours of receiving it, except that where a covered entity has an
ongoing relationship with an individual, the covered entity may store
the fact that the individual has received a COVID-19 vaccine, as well as
a copy of the individual's immunity passport, provided that:
(a) the covered entity first obtains the individual's informed, affir-
mative, and voluntary consent to store such information, and
(b) the covered entity stores any copy of an individual's immunity
passport and any personal information derived from the immunity passport
as if they were subject to the confidentiality requirements of title I
of the Americans with Disabilities Act 42 U.S.C. 12112(d) and its imple-
menting regulations, 29 CFR 1630.14.
3. An immunity passport provider shall not use or disclose personal
information derived from an immunity passport beyond what is adequate,
relevant, and necessary to identify an individual as having received a
COVID-19 vaccine or a COVID-19 test result and shall not collect,
access, receive, capture, store, maintain, use, or disclose personal
information pertaining to where or when an individual uses an immunity
passport.
4. (a) Except as provided in this subdivision, no covered entity or
immunity passport provider may:
(i) provide personal information derived from an immunity passport or
otherwise make such personal information accessible, directly or indi-
rectly, to a law enforcement agent or entity or immigration authority;
S. 837 5
(ii) provide such personal information or otherwise make such personal
information accessible, directly or indirectly, to any other individual
or entity except as explicitly authorized by this section.
(b) Except as provided in this subdivision, personal information
derived from an immunity passport, and any evidence derived therefrom,
shall not be subject to or provided in response to any legal process or
be admissible for any purpose in any judicial or administrative action
or proceeding.
(c) Personal information derived from an immunity passport, and any
evidence derived therefrom, may be disclosed for the purposes of inves-
tigations and prosecutions of allegations of computer tampering or frau-
dulent statements related to an individual's vaccination status.
Disclosure for these purposes shall be subject to in camera review and
approval by the court and, if the use is initiated by a party other than
the individual whose personal information is sought, the information
must be highly material and relevant for the purpose.
5. The commissioner shall make regulations as reasonably necessary to
ensure that individuals who are medically contraindicated from receiving
the COVID-19 vaccine are nonetheless able to obtain reasonable accommo-
dations to enable them to access the services of a covered entity, in a
manner that does not impose an undue hardship on the covered entity or
present a direct threat that cannot be addressed by a reasonable accom-
modation.
6.] Nothing in this section requires a covered entity to require proof
of COVID-19 immunity or to independently verify the information
contained in an immunity passport.
[7.] 3. Nothing in this section shall be construed to limit a covered
entity's obligations under the Americans with Disabilities Act, article
fifteen of the executive law, the civil rights law, or any other feder-
al, state, or local anti-discrimination law.
[8.] 4. Nothing in this section shall be construed to affect the prac-
tices of a health care provider, as defined in section eighteen of this
chapter, a hospital or nursing home as defined in article twenty-eight
of this chapter, a health practitioner as defined in section twenty-one
hundred sixty-four of this chapter, a facility, as defined in section
33.13 of the mental hygiene law, or a correctional health service
governed by the department of corrections and community supervision, the
rules of the board of correction in the city of New York, or a county
board of correction, with respect to records concerning their patients'
vaccinations.
§ 6. This act shall take effect on the same date and in the same
manner as a chapter of the laws of 2022, amending the public health law
relating to protecting the confidentiality of vaccine information, as
proposed in legislative bills numbers S. 6541-A and A. 7326-A, takes
effect.
