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

                                  1748

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             January 9, 2009
                               ___________

Introduced  by  M.  of  A.  GOTTFRIED  --  read once and referred to the
  Committee on Health

AN ACT to amend the public health law, the mental hygiene  law  and  the
  civil  practice law and rules, in relation to access to patient infor-
  mation, medical records and clinical records

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Paragraphs (b), (d) and (g) of subdivision 1 of section 18
of the public health law, paragraphs (b) and (d) as added by chapter 497
of the laws of 1986 and paragraph (g) as amended by chapter 634  of  the
laws  of  2004,  are amended and a new paragraph (j) is added to read as
follows:
  (b) "Health care provider" or "provider" means a ["health care facili-
ty" or a "health care practitioner"  as  defined  by  this  subdivision]
HEALTH CARE FACILITY OR HEALTH CARE PRACTITIONER, OR AN AGENT THEREOF.
  (d)  "Health  care  practitioner"  or  "practitioner"  means  a person
licensed under article one hundred thirty-one, one hundred thirty-one-B,
one hundred thirty-two, one hundred thirty-three,  one  hundred  thirty-
six,  ONE  HUNDRED  THIRTY-SEVEN,  one  hundred thirty-nine, ONE HUNDRED
FORTY, one hundred  forty-one,  one  hundred  forty-three,  one  hundred
forty-four, one hundred fifty-three, one hundred fifty-four, one hundred
fifty-six  or  one  hundred fifty-nine of the education law [or a person
certified under section twenty-five hundred sixty of this chapter].
  (g) "Qualified person" means any properly  identified  subject;  or  a
guardian  appointed  under article eighty-one of the mental hygiene law;
or a parent of an infant; or a guardian of  an  infant  appointed  under
article seventeen of the surrogate's court procedure act or other legal-
ly appointed guardian of an infant who may be entitled to request access
to  a  clinical  record  under  paragraph (c) of subdivision two of this
section; or a distributee of any deceased subject for whom  no  personal
representative,  as  defined  in the estates, powers and trusts law, has

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00984-01-9
              

A. 1748                             2

been appointed; or an attorney representing [a]  ANY OF THE ABOVE quali-
fied [person] PERSONS or the subject's  estate  who  holds  a  power  of
attorney  from  the  qualified person or the subject's estate explicitly
authorizing the holder to execute a written request for patient informa-
tion    OR TO OBTAIN MEDICAL RECORDS under this section; OR THE DESIGNEE
OF THE HOLDER OF THE POWER OF ATTORNEY, WHO SHALL BE AN ATTORNEY  OR  AN
AGENT  OF  AN  ATTORNEY.  A qualified person shall be deemed a "personal
representative of the individual" for purposes  of  the  federal  health
insurance  portability and accountability act of 1996 and its implement-
ing regulations.
  (J) "AGENT" MEANS A CONTRACTOR, SUBCONTRACTOR, AFFILIATE OR SUBSIDIARY
OF A HEALTH CARE PROVIDER WHICH BY CONTRACT OR OTHERWISE RECEIVES, MAIN-
TAINS, COPIES OR TRANSMITS PATIENT INFORMATION OR  MEDICAL  RECORDS  FOR
THE HEALTH CARE PROVIDER.
  S 2. Paragraph (e) of subdivision 2 of section 18 of the public health
law,  as  amended by chapter 576 of the laws of 1998, is amended to read
as follows:
  (e) [The provider may impose a reasonable charge for  all  inspections
and copies, not exceeding the costs incurred by such provider, provided,
however, that a provider may not impose a charge for copying an original
mammogram  when  the original has been furnished to any qualified person
and provided, further, that any charge for furnishing an original mammo-
gram pursuant to this section shall  not  exceed  the  documented  costs
associated  therewith.  However,  the reasonable charge for paper copies
shall not exceed seventy-five cents per page. A qualified  person  shall
not  be denied access to patient information solely because of inability
to pay.] (I) THE PROVIDER MAY IMPOSE A CHARGE FOR  ALL  INSPECTIONS  AND
COPIES  OF PATIENT INFORMATION; PROVIDED, HOWEVER, THAT A PROVIDER SHALL
NOT IMPOSE A CHARGE FOR COPYING AN ORIGINAL MAMMOGRAM WHEN THE  ORIGINAL
HAS  BEEN FURNISHED TO ANY QUALIFIED PERSON; AND PROVIDED, FURTHER, THAT
ANY CHARGE FOR FURNISHING AN ORIGINAL MAMMOGRAM PURSUANT TO THIS SECTION
SHALL NOT EXCEED THE DOCUMENTED COSTS ASSOCIATED THEREWITH.  THE  CHARGE
FOR  PAPER  COPIES  SHALL  BE  SEVENTY-FIVE CENTS PER PAGE FOR COPIES OF
PATIENT INFORMATION REQUESTED BY A QUALIFIED PERSON  TO  FACILITATE  THE
PATIENT'S  ONGOING  HEALTH CARE, PLUS POSTAGE OR SHIPPING AND SALES TAX,
IF APPLICABLE.
  (II) FOR COPIES, OTHER THAN COPIES OF IMAGING, REQUESTED BY  A  QUALI-
FIED  PERSON FOR PURPOSES OTHER THAN TO FACILITATE THE PATIENT'S ONGOING
HEALTH CARE: (A) FOR PAPER COPIES, THE FEE SHALL BE TWO DOLLARS PER PAGE
FOR THE FIRST FIFTEEN PAGES AND THEREAFTER SHALL BE ONE DOLLAR PER PAGE,
PLUS POSTAGE OR SHIPPING AND SALES TAX, IF APPLICABLE:  (B)  FOR  COPIES
PRODUCED  FROM  MICROFILM  OR MICROFICHE, THE FEE SHALL BE THREE DOLLARS
PER PAGE FOR THE FIRST FIFTEEN PAGES AND THEREAFTER SHALL BE TWO DOLLARS
PER PAGE, PLUS POSTAGE OR SHIPPING AND SALES  TAX,  IF  APPLICABLE.  THE
FEES  AUTHORIZED BY THIS SUBPARAGRAPH SHALL APPLY ONLY IF THE COPIES ARE
PROVIDED WITHIN SIXTY DAYS OF RECEIPT  OF  A  REQUEST.  FOR  COPIES  NOT
PROVIDED  WITHIN SIXTY DAYS OF RECEIPT OF A REQUEST, THE FEE ESTABLISHED
IN SUBPARAGRAPH (I) OF THIS PARAGRAPH SHALL APPLY.
  (III) FOR COPIES OF IMAGING, OTHER THAN ORIGINAL MAMMOGRAMS  FURNISHED
TO  A  QUALIFIED PERSON, THE CHARGE SHALL NOT EXCEED THE REASONABLE COST
OF REPRODUCTION. FOR PURPOSES OF THIS SECTION, THE TERM "IMAGING"  SHALL
MEAN:  ANY  X-RAY OR IMAGE PRODUCED BY CONVENTIONAL X-RAY OR RADIOGRAPH,
FLUOROSCOPY, DIGITAL RADIOGRAPHY, COMPUTED  TOMOGRAPHY,  MAGNETIC  RESO-
NANCE  IMAGING,  NUCLEAR  IMAGING,  ULTRASONOGRAPHY, ANGIOGRAPHY, OR ANY
OTHER SIMILAR MEDICAL IMAGING SERVICES.

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  (IV) ON AND AFTER JANUARY FIRST, TWO THOUSAND TEN,  THE  COMMISSIONER,
IN  CONSULTATION  WITH  THE  COMMISSIONER OF MENTAL HEALTH, SHALL ADJUST
ANNUALLY THE AMOUNTS SET FORTH IN  THIS  PARAGRAPH  BASED  ON  THE  MOST
RECENT  CHANGES  IN  THE  CONSUMER  PRICE INDEX REPORTED ANNUALLY BY THE
BUREAU OF LABOR STATISTICS IN THE UNITED STATES DEPARTMENT OF LABOR.
  (V)  A QUALIFIED PERSON SHALL NOT BE DENIED ACCESS TO PATIENT INFORMA-
TION SOLELY BECAUSE OF INABILITY TO PAY.
  S 3. Section  18 of the public health law, as added by chapter 497  of
the  laws  of 1986, is amended by adding three new subdivisions 3-a, 3-b
and 3-c to read as follows:
  3-A. A QUALIFIED PERSON  SHALL  REQUEST  MEDICAL  RECORDS  UNDER  THIS
SECTION  BY  SUBMITTING  A SIGNED WRITTEN STATEMENT WHICH SETS FORTH THE
FACTS ESTABLISHING HIS OR HER QUALIFYING STATUS UNDER THIS SECTION.
  3-B. WHERE THE WRITTEN REQUEST IS FROM THE HOLDER OF A POWER OF ATTOR-
NEY, A COPY OF THE POWER OF ATTORNEY SHALL BE ATTACHED TO  THE  REQUEST.
WHERE  THE  WRITTEN REQUEST IS FROM A DESIGNEE OF A HOLDER OF A POWER OF
ATTORNEY, A COPY OF THE POWER OF ATTORNEY AND OF THE  DESIGNATION  SHALL
BE  ATTACHED  TO  THE REQUEST. A REQUEST UNDER THIS SUBDIVISION SHALL BE
SUBJECT TO THE DURATION AND TERMS OF THE POWER OF  ATTORNEY  AND  DESIG-
NATION,  AS  THE  CASE  MAY BE. A PERSON RECEIVING MEDICAL RECORDS UNDER
THIS SUBDIVISION SHALL NOT USE OR DISCLOSE THE MEDICAL  RECORDS  OR  ANY
INFORMATION CONTAINED THEREIN EXCEPT FOR THE PURPOSE FOR WHICH THEY WERE
AUTHORIZED TO BE RECEIVED.
  3-C.  THE  RELEASE OF MEDICAL RECORDS SHALL BE SUBJECT TO: (I) ARTICLE
TWENTY-SEVEN-F OF THIS CHAPTER IN THE CASE OF  CONFIDENTIAL  HIV-RELATED
INFORMATION;   (II)   SECTION  SEVENTEEN  OF  THIS  TITLE  AND  SECTIONS
TWENTY-THREE HUNDRED ONE,  TWENTY-THREE  HUNDRED  SIX  AND  TWENTY-THREE
HUNDRED  EIGHT OF THIS CHAPTER IN THE CASE OF TERMINATION OF A PREGNANCY
AND  TREATMENT  FOR  SEXUALLY   TRANSMITTED   DISEASE;   (III)   ARTICLE
THIRTY-THREE OF THE MENTAL HYGIENE LAW; AND (IV) ANY OTHER PROVISIONS OF
LAW  CREATING  SPECIAL  REQUIREMENTS  RELATING TO THE RELEASE OF MEDICAL
INFORMATION, INCLUDING THE  FEDERAL  HEALTH  INSURANCE  PORTABILITY  AND
ACCOUNTABILITY ACT OF 1996 AND ITS IMPLEMENTING REGULATIONS.
  S  4.  Subdivision  (a)  of section 33.16 of the mental hygiene law is
amended by adding a new paragraph 8 to read as follows:
  8. "AGENT" MEANS A CONTRACTOR, SUBCONTRACTOR, AFFILIATE OR  SUBSIDIARY
OF  A FACILITY WHO BY CONTRACT OR OTHERWISE, RECEIVES, MAINTAINS, COPIES
OR TRANSMITS CLINICAL RECORDS FOR THE FACILITY.
  S 5. Paragraph 6 of subdivision (b) of section  33.16  of  the  mental
hygiene law, as amended by chapter 165 of the laws of 1991 and as renum-
bered by chapter 233 of the laws of 1991, is amended to read as follows:
  6.  [The  facility  may impose a reasonable charge for all inspections
and copies, not exceeding the costs incurred by such provider.  However,
the  reasonable  charge  for  paper copies shall not exceed seventy-five
cents per page. A qualified person shall not be  denied  access  to  the
clinical  record solely because of inability to pay.] A. THE FACILITY OR
ITS AGENT MAY IMPOSE A CHARGE FOR ALL INSPECTIONS AND COPIES OF  PATIENT
INFORMATION. THE CHARGE FOR PAPER COPIES SHALL BE SEVENTY-FIVE CENTS PER
PAGE  FOR  COPIES OF PATIENT INFORMATION REQUESTED BY A QUALIFIED PERSON
TO FACILITATE THE PATIENT'S ONGOING HEALTH CARE, PLUS POSTAGE  OR  SHIP-
PING AND SALES TAX, IF APPLICABLE.
  B.  FOR COPIES REQUESTED BY A QUALIFIED PERSON FOR PURPOSES OTHER THAN
TO FACILITATE THE PATIENT'S HEALTH CARE (I) FOR PAPER  COPIES,  THE  FEE
SHALL BE TWO DOLLARS PER PAGE FOR THE FIRST FIFTEEN PAGES AND THEREAFTER
SHALL BE ONE DOLLAR PER PAGE, PLUS POSTAGE OR SHIPPING AND SALES TAX, IF
APPLICABLE;  AND  (II) FOR COPIES PRODUCED FROM MICROFILM OR MICROFICHE,

A. 1748                             4

THE FEE SHALL BE THREE DOLLARS PER PAGE FOR THE FIRST FIFTEEN PAGES  AND
THEREAFTER  SHALL  BE TWO DOLLARS PER PAGE, PLUS POSTAGE OR SHIPPING AND
SALES TAX, IF APPLICABLE. THE FEES AUTHORIZED BY THIS SUBPARAGRAPH SHALL
APPLY  ONLY IF THE COPIES ARE PROVIDED WITHIN SIXTY DAYS OF RECEIPT OF A
REQUEST. FOR COPIES NOT PROVIDED WITHIN  SIXTY  DAYS  OF  RECEIPT  OF  A
REQUEST,  THE  FEE ESTABLISHED IN SUBPARAGRAPH A OF THIS PARAGRAPH SHALL
APPLY.
  C. ON AND AFTER JANUARY FIRST, TWO THOUSAND TEN, THE COMMISSIONER,  IN
CONSULTATION  WITH THE COMMISSIONER OF HEALTH, SHALL ADJUST ANNUALLY THE
AMOUNTS SET FORTH IN THIS PARAGRAPH BASED ON THE MOST RECENT CHANGES  IN
THE  CONSUMER  PRICE  INDEX  REPORTED  ANNUALLY  BY  THE BUREAU OF LABOR
STATISTICS IN THE UNITED STATES DEPARTMENT OF LABOR.
  D. A QUALIFIED PERSON SHALL NOT BE DENIED ACCESS TO  PATIENT  INFORMA-
TION SOLELY BECAUSE OF INABILITY TO PAY.
  S 6. Subdivision (d) of rule 3122 of the civil practice law and rules,
as  added  by  chapter  575  of  the laws of 2002, is amended to read as
follows:
  (d) Unless the subpoena duces tecum directs the production of original
documents for inspection and copying at the place where such  items  are
usually  maintained,  it  shall be sufficient for the custodian or other
qualified person to deliver complete and accurate copies of the items to
be produced. The reasonable production expenses of a  non-party  witness
shall  be defrayed by the party seeking discovery.  THE CHARGES AND FEES
AUTHORIZED BY SUBDIVISION TWO OF SECTION EIGHTEEN OF THE  PUBLIC  HEALTH
LAW  AND PARAGRAPH SIX OF SUBDIVISION (B) OF SECTION 33.16 OF THE MENTAL
HYGIENE LAW, RELATIVE TO REQUESTS FOR INSPECTIONS AND COPYING OF MEDICAL
RECORDS SHALL  BE  DEEMED  TO  BE  REASONABLE  PRODUCTION  EXPENSES  FOR
PURPOSES OF THIS SUBDIVISION.
  S  7. For the periods of time prior to the effective dates of sections
one through six of this  act,  the  provision  of  patient  information,
medical  or clinical records pursuant to the provisions of section 18 of
the public health law or section 33.16 of the mental hygiene  law  at  a
fee  of  seventy-five cents per page shall be deemed for all purposes to
be compliant with such sections of law.
  S 8. This act shall take effect immediately; provided,  however,  that
sections  one through five of this act shall take effect on the sixtieth
day after this act shall have become a law.