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This entry was published on 2021-08-13
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SECTION 33.13
Clinical records; confidentiality
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 33
§ 33.13 Clinical records; confidentiality.

(a) A clinical record for each patient or client shall be maintained
at each facility licensed or operated by the office of mental health or
the office for people with developmental disabilities, hereinafter
referred to as the offices. For the purposes of this section, the term
"facility" shall mean "facility" as such term is defined in section 1.03
of this chapter, provided, however, such term shall also include any
provider of services for individuals 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. The record shall
contain information on all matters relating to the admission, legal
status, care, and treatment of the patient or client and shall include
all pertinent documents relating to the patient or client. The
commissioners of such offices, by regulation, each shall determine the
scope and method of recording information, including data pertaining to
admission, legal matters affecting the patient or client, records and
notation of course of care and treatment, therapies, restrictions on
patient's or client's rights, periodic examinations, and such other
information as he or she may require.

* (b) The commissioners may require that statistical information about
patients or clients be reported to the offices.

* NB Effective until June 30, 2022

* (b) The commissioners may require that statistical information about
patients or clients be reported to the offices. Names of patients
treated at out-patient or non-residential facilities shall not be
required as part of any such reports. Hospitals licensed by the office
of mental health and general hospitals shall provide to the office of
mental health, upon request, records relating to persons described in
subdivision (j) of section 7.09 of this chapter who may be disqualified
from possessing a firearm pursuant to 18 USC 422(4)(d).

* NB Effective June 30, 2022

(c) Such information about patients or clients reported to the
offices, including the identification of patients or clients, clinical
records or clinical information tending to identify patients or clients,
and records and information concerning persons under consideration for
proceedings pursuant to article ten of this chapter, at office
facilities shall not be a public record and shall not be released by the
offices or its facilities to any person or agency outside of the offices
except as follows:

1. pursuant to an order of a court of record requiring disclosure upon
a finding by the court that the interests of justice significantly
outweigh the need for confidentiality, provided, however, that nothing
herein shall be construed to affect existing rights of employees in
disciplinary proceedings.

2. to the mental hygiene legal service.

3. to attorneys representing patients or clients in proceedings in
which the patients' or clients' involuntary hospitalization or assisted
outpatient treatment is at issue.

4. to the justice center for the protection of people with special
needs.

5. to the medical review board of the state commission of correction
when such board has requested such information with respect to the death
of a named person, or, with the consent of a patient or client when such
board has requested information about the patient or client providing
that such board requires such information in the exercise of its
statutory functions, powers and duties. Information, books, records or
data which are confidential as provided by law shall be kept
confidential by the state commission and any limitation on the release
thereof imposed by law upon the party furnishing the information, books,
records or data shall apply to the medical review board.

6. to an endangered individual and a law enforcement agency when a
treating psychiatrist or psychologist has determined that a patient or
client presents a serious and imminent danger to that individual. The
reasons for any such disclosures shall be fully documented in the
clinical record. Nothing in this paragraph shall be construed to impose
an obligation upon a treating psychiatrist or psychologist to release
information pursuant to this paragraph.

7. with the consent of the patient or client or of someone authorized
to act on the patient's or client's behalf, to persons and entities who
have a demonstrable need for such information and who have obtained such
consent, provided that disclosure will not reasonably be expected to be
detrimental to the patient, client or another provided, however, that
release of such information to a patient or client shall not be governed
by this subdivision.

8. to the state board for professional medical conduct or the office
of professional discipline or their respective representatives when such
persons or entities request such information in the exercise of their
statutory function, power and duties provided, however, that no such
information shall be released when it concerns the subject of an inquiry
who is also a patient or client, except pursuant to paragraph one of
this subdivision.

9. with the consent of the appropriate commissioner, to:

(i) 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 or clients
pursuant to contract or in accordance with law, such information to be
kept confidential and limited to the information required.

(ii) persons and agencies needing information to locate missing
persons or to governmental agencies in connection with criminal
investigations, such information to be limited to identifying data
concerning hospitalization.

(iii) qualified researchers upon the approval of the institutional
review board or other committee specially constituted for the approval
of research projects at the facility, provided that the researcher shall
in no event disclose information tending to identify a patient or
client.

(iv) a coroner, a county medical examiner, or the chief medical
examiner for New York city upon the request of a facility director that
an investigation be conducted into the death of a patient or client for
whom such record is maintained.

(v) appropriate persons and entities when necessary to prevent
imminent serious harm to the patient or client or another person,
provided, however, nothing in this subparagraph shall be construed to
impose an obligation to release information pursuant to this
subparagraph.

(vi) a district attorney when such request for information is in
connection with and necessary to the furtherance of a criminal
investigation of patient or client abuse.

(vii) appropriate persons and entities when necessary to protect the
public concerning a specific sex offender requiring civil management
under article ten of this chapter.

(viii) to the attorney general, case review panel, or psychiatric
examiners described in article ten of this chapter, when such persons or
entities request such information in the exercise of their statutory
functions, powers and duties under article ten of this chapter.

10. to a correctional facility, when the chief administrative officer
has requested such information with respect to a named incarcerated
individual of such correctional facility as defined by subdivision three
of section forty of the correction law or to the department of
corrections and community supervision, when the department has requested
such information with respect to a person under its jurisdiction or an
incarcerated individual of a state correctional facility, when such
incarcerated individual is within four weeks of release from such
institution to community supervision. Information released pursuant to
this paragraph may be limited to a summary of the record, including but
not limited to: the basis for referral to the facility; the diagnosis
upon admission and discharge; a diagnosis and description of the
patient's or client's current mental condition; the current course of
treatment, medication and therapies; and the facility's recommendation
for future mental hygiene services, if any. Such information may be
forwarded to the department of corrections and community supervision
staff in need of such information for the purpose of making a
determination regarding an incarcerated individual's health care,
security, safety or ability to participate in programs. In the event an
incarcerated individual is transferred, the sending correctional
facility shall forward, upon request, such summaries to the chief
administrative officer of any correctional facility to which the
incarcerated individual is subsequently incarcerated. The office of
mental health and the office for people with developmental disabilities,
in consultation with the commission of correction and the department of
corrections and community supervision, shall promulgate rules and
regulations to implement the provisions of this paragraph.

11. to a qualified person pursuant to section 33.16 of this chapter.

12. to a director of community services as defined in article nine of
this chapter or his or her designee, provided that such director or his
or her designee (i) requests such information in the exercise of his or
her statutory functions, powers and duties pursuant to section 9.37,
9.45, 9.47, 9.48, 9.60 or 41.13 of this chapter; or (ii) the disclosure
of information is required pursuant to section 9.46 of this chapter.

13. to the state division of criminal justice services for the sole
purposes of:

(i) providing, facilitating, evaluating or auditing access by the
commissioner of mental health to criminal history information pursuant
to subdivision (i) of section 7.09 of this chapter; or

(ii) providing information to the criminal justice information
services division of the federal bureau of investigation by the
commissioner of mental health or the commissioner of developmental
disabilities, for the purposes of responding to queries to the national
instant criminal background check system regarding attempts to purchase
or otherwise take possession of firearms, in accordance with applicable
federal laws or regulations.

14. to the criminal justice information services division of the
federal bureau of investigation, for the purposes of responding to
queries to the national instant criminal background check system,
regarding attempts to purchase or otherwise take possession of firearms,
in accordance with applicable federal laws or regulations.

15. to the division of criminal justice services, names and other
non-clinical identifying information for the sole purpose of
implementing the division's responsibilities and duties under sections
400.00 and 400.02 of the penal law.

16. to a mental health incident review panel, or members thereof,
established by the commissioner pursuant to section 31.37 of this title,
in connection with incident reviews conducted by such panel.

17. to the agency designated by the governor pursuant to subdivision
(b) of section 558 of the executive law to provide protection and
advocacy services and administer the protection and advocacy system as
provided for by federal law. Such agency shall not be charged any fee
for copies of records obtained from a facility under this article.

18. to the board of correction of the city of New York when such board
has requested such information with respect to the death of a named
person, or, with the consent of a patient or client when such board has
requested information about the patient or client providing that such
board requires such information in the exercise of its functions, powers
and duties. Information, books, records or data which are confidential
as provided by law shall be kept confidential by the board of correction
of the city of New York and any limitation on the release thereof
imposed by law upon the party furnishing the information, books, records
or data shall apply to the board of correction of the city of New York.

* (d) Nothing in this section shall prevent the electronic or other
exchange of information concerning patients or clients, including
identification, between and among (i) facilities or others providing
services for such patients or clients pursuant to an approved local
services plan, as defined in article forty-one of this chapter, or
pursuant to agreement with the department, and (ii) the department or
any of its licensed or operated facilities. Neither shall anything in
this section prevent the exchange of information concerning patients or
clients, including identification, between facilities and managed care
organizations, behavioral health organizations, health homes or other
entities authorized by the department or the department of health to
provide, arrange for or coordinate health care services for such
patients or clients who are enrolled in or receiving services from such
organizations or entities. Provided however, written patient or client
consent shall be obtained prior to the exchange of information where
required by 42 USC 290dd-2 as amended, and any regulations promulgated
thereunder. Furthermore, subject to the prior approval of the
commissioner of mental health, hospital emergency services licensed
pursuant to article twenty-eight of the public health law shall be
authorized to exchange information concerning patients or clients
electronically or otherwise with other hospital emergency services
licensed pursuant to article twenty-eight of the public health law
and/or hospitals licensed or operated by the office of mental health;
provided that such exchange of information is consistent with standards,
developed by the commissioner of mental health, which are designed to
ensure confidentiality of such information. Additionally, information so
exchanged shall be kept confidential and any limitations on the release
of such information imposed on the party giving the information shall
apply to the party receiving the information.

* NB Effective until June 30, 2022

* (d) Nothing in this section shall prevent the exchange of
information concerning patients or clients, including identification,
between (i) facilities or others providing services for such patients or
clients pursuant to an approved local services plan, as defined in
article forty-one, or pursuant to agreement with the department and (ii)
the department or any of its facilities. Neither shall anything in this
section prevent the exchange of information concerning patients or
clients, including identification, between facilities and managed care
organizations, behavioral health organizations, health homes or other
entities authorized by the department or the department of health to
provide, arrange for or coordinate health care services for such
patients or clients who are enrolled in or receiving services from such
organizations or entities. Provided however, written patient or client
consent shall be obtained prior to the exchange of information where
required by 42 USC 290dd-2 as amended, and any regulations promulgated
thereunder. Information so exchanged shall be kept confidential and any
limitations on the release of such information imposed on the party
giving the information shall apply to the party receiving the
information.

* NB Effective June 30, 2022

(e) Clinical information tending to identify patients or clients and
clinical records maintained at a facility not operated by the offices,
shall not be a public record and shall not be released to any person or
agency outside such facility except pursuant to subdivisions (b), (c)
and (d) of this section. The director of such a facility may consent to
the release of such information and records, subject to regulation by
the commissioner, pursuant to the exceptions stated in subdivision (c)
of this section; provided that, for the purpose of this subdivision,
such consent shall be deemed to be the consent otherwise required of the
commissioner pursuant to subdivision (c) of this section. Nothing in
this subdivision shall be construed to limit, restrict or otherwise
affect access to such clinical information or records by the mental
hygiene legal service, the commission on quality of care for the
mentally disabled or the offices when such access is authorized
elsewhere in law.

(f) All records of identity, diagnosis, prognosis, treatment, care
coordination or any other information contained in a patient or client's
record shall be confidential unless disclosure is permitted under
subdivision (c) of this section. Any disclosure made pursuant to this
section shall be limited to that information necessary and required in
light of the reason for disclosure. Information so disclosed shall be
kept confidential by the party receiving such information and the
limitations on disclosure in this section shall apply to such party.
Except for disclosures made to the mental hygiene legal service, to
persons reviewing information or records in the ordinary course of
insuring that a facility is in compliance with applicable quality of
care standards, or to governmental agents requiring information
necessary for payments to be made to or on behalf of patients or clients
pursuant to contract or in accordance with law, a notation of all such
disclosures shall be placed in the clinical record of that individual
who shall be informed of all such disclosures upon request; provided,
however, that for disclosures made to insurance companies licensed
pursuant to the insurance law, such a notation need only be entered at
the time the disclosure is first made.