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

                                  3631

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2015
                               ___________

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

AN ACT to amend the public health law and the  mental  hygiene  law,  in
  relation to patient health information and medical records

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

  Section 1. Section 17 of the public health law, as amended by  chapter
165  of the laws of 1991, the first undesignated paragraph as amended by
chapter 576 of the laws of 1998, is amended to read as follows:
  S 17. Release of [medical] HEALTH records TO A DESIGNATED HEALTH  CARE
PROVIDER.   1. Upon the written request of any competent patient, parent
or guardian of an infant,  a  guardian  appointed  pursuant  to  article
eighty-one  of  the mental hygiene law, or conservator of a conservatee,
[an examining, consulting or treating  physician  or  hospital  must]  A
HEALTH  CARE PROVIDER WHO HAS PROVIDED PROFESSIONAL HEALTH CARE SERVICES
PERTAINING  TO  A  PATIENT  SHALL  release  and  deliver,  exclusive  of
NON-CLINICAL  personal  notes of the [said physician or hospital] HEALTH
CARE PROVIDER, copies of all [x-rays, medical] REQUESTED HEALTH  records
[and test records including all laboratory tests] regarding that patient
to  any other designated [physician or hospital provided, however, that]
HEALTH CARE PROVIDER.  HOWEVER, such records concerning the treatment of
an infant patient for venereal disease or the performance of an abortion
operation upon such infant patient shall  not  be  released  or  in  any
manner  be  made available to the parent or guardian of such infant, and
provided, further, that original mammograms, rather than copies thereof,
shall be released and delivered.  WHERE A HEALTH CARE PROVIDER MAINTAINS
A HEALTH RECORD IN ELECTRONIC FORM, IT MAY PROVIDE THE RECORD UNDER THIS
SECTION IN A REASONABLY USABLE ELECTRONIC FORM, AND SHALL PROVIDE IT  IN
SUCH FORM IF REQUESTED BY THE PERSON MAKING THE REQUEST.
  [Either the physician or hospital] 2. A HEALTH CARE PROVIDER incurring
the expense of providing copies of [x-rays, medical] HEALTH records [and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01173-01-5
              

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test  records including all laboratory tests] pursuant to the provisions
of this section may impose a reasonable charge to be paid by the  person
requesting  the release and deliverance of such records as reimbursement
[for  such]  NOT  TO  EXCEED THE HEALTH CARE PROVIDER'S ACTUAL expenses,
provided, however, that the [physician or hospital] HEALTH CARE PROVIDER
may not impose a charge for  copying  an  original  mammogram  when  the
original has been released or delivered to any competent patient, parent
or  guardian  of  an  infant,  a  guardian appointed pursuant to article
eighty-one of the mental hygiene law, or a conservator of a  conservatee
and provided, further, that any charge for delivering an original mammo-
gram  pursuant  to  this  section shall not exceed the documented ACTUAL
costs associated therewith[. However, the reasonable charge], WHICH  for
paper  copies shall not exceed seventy-five cents per page. A release of
records under this section shall not be denied solely because of inabil-
ity to pay.  NO CHARGE MAY BE IMPOSED UNDER THIS SECTION FOR  PROVIDING,
RELEASING OR DELIVERING HEALTH RECORDS OR COPIES OF HEALTH RECORDS WHERE
REQUESTED  FOR  THE  PURPOSE  OF  SUPPORTING  A  CLAIM OR APPEAL FOR ANY
GOVERNMENT BENEFIT OR PROGRAM.
  3. WHERE A HEALTH CARE  PROVIDER  PROVIDES  HEALTH  CARE  PROFESSIONAL
SERVICES  AS  AN  EMPLOYEE OF OR UNDER CONTRACT WITH ANOTHER HEALTH CARE
PROVIDER, COMPLIANCE WITH THIS SECTION SHALL BE  THE  RESPONSIBILITY  OF
THE  HEALTH  CARE PROVIDER THAT EMPLOYS OR CONTRACTS FOR THE SERVICES OF
THE OTHER HEALTH CARE PROVIDER, UNLESS THE TERMS OF  THE  EMPLOYMENT  OR
CONTRACT  EXPLICITLY  PROVIDE  OTHERWISE.  IF  A  HEALTH  CARE  PROVIDER
RECEIVES A REQUEST UNDER THIS SECTION AND COMPLIANCE IS THE RESPONSIBIL-
ITY OF A DIFFERENT HEALTH CARE  PROVIDER  UNDER  THIS  SUBDIVISION,  THE
HEALTH  CARE PROVIDER RECEIVING THE REQUEST SHALL IMMEDIATELY INFORM THE
REQUESTING PARTY TO WHICH HEALTH CARE PROVIDER  THE  REQUEST  SHOULD  BE
DIRECTED.
  4. For the purposes of this section the [term "laboratory tests" shall
include] FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  (A)  "HEALTH  RECORD"  INCLUDES  ANY PATIENT INFORMATION AS DEFINED IN
SECTION EIGHTEEN OF THIS TITLE, X-RAYS AND OTHER IMAGES, AND RECORDS  OF
LABORATORY  TESTS  INCLUDING  but not [be] limited to tests and examina-
tions administered in clinical laboratories  or  blood  banks  as  those
terms are defined in section five hundred seventy-one of this chapter.
  (B)  "HEALTH  CARE  PROVIDER"  AND "HEALTH CARE PRACTITIONER" HAVE THE
SAME MEANINGS AS DEFINED IN SECTION EIGHTEEN OF THIS TITLE.
  (C) "PROFESSIONAL HEALTH CARE SERVICES" MEANS THE SERVICES OF A HEALTH
CARE PROVIDER EXAMINING, ASSESSING, TREATING OR CONSULTING  IN  RELATION
TO  A  PATIENT OR PATIENT'S CONDITION, WITHIN THE SCOPE OF PRACTICE OF A
HEALTH CARE PRACTITIONER.
  S 2. Paragraphs (c), (d) and (e) of subdivision 1 of section 18 of the
public health law, paragraphs (c) and (d) as added by chapter 497 of the
laws of 1986, paragraph (e) as amended by chapter 2 of the laws of 1990,
and the closing paragraph of paragraph (e) as amended by chapter 576  of
the  laws  of 1998, are amended and a new paragraph (j) is added to read
as follows:
  (c) "Health care facility" or "facility" means a hospital  as  defined
in  article twenty-eight of this chapter, a home care services agency as
defined in article thirty-six of this chapter, a hospice as  defined  in
article  forty  of  this  chapter,  a health maintenance organization as
defined in article forty-four of this chapter,  [and]  a  shared  health
facility as defined in article forty-seven of this chapter; OR AN ENTITY
THAT  PROVIDES  THE  HEALTH  CARE PROFESSIONAL SERVICES OF A HEALTH CARE

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PROVIDER BY EMPLOYING OR CONTRACTING FOR THE  HEALTH  CARE  PROFESSIONAL
SERVICES OF A HEALTH CARE PROVIDER.
  (d)  "Health  care  practitioner"  or  "practitioner"  means  a person
licensed under article one hundred thirty-one  (MEDICINE),  one  hundred
thirty-one-B  (PHYSICIAN ASSISTANTS), ONE HUNDRED THIRTY-ONE-C (SPECIAL-
IST ASSISTANT), one hundred thirty-two (CHIROPRACTIC), one hundred thir-
ty-three  (DENTISTRY  AND  DENTAL  HYGIENE),  ONE  HUNDRED   THIRTY-FOUR
(LICENSED  PERFUSIONISTS),  one hundred thirty-six (PHYSICAL THERAPY AND
PHYSICAL THERAPY ASSISTANTS), ONE HUNDRED THIRTY-SEVEN  (PHARMACY),  one
hundred thirty-nine (NURSING), ONE HUNDRED FORTY (PROFESSIONAL MIDWIFERY
PRACTICE),  one  hundred  forty-one  (PODIATRY), one hundred forty-three
(OPTOMETRY), one hundred forty-four (OPHTHALMIC DISPENSING), one hundred
fifty-three (PSYCHOLOGY), one  hundred  fifty-four  (SOCIAL  WORK),  ONE
HUNDRED  FIFTY-FIVE (MASSAGE THERAPY), one hundred fifty-six [or] (OCCU-
PATIONAL THERAPY, ONE HUNDRED FIFTY-SEVEN (DIETETICS AND NUTRITION), one
hundred fifty-nine (SPEECH-LANGUAGE PATHOLOGISTS OR  AUDIOLOGISTS),  ONE
HUNDRED  SIXTY (ACUPUNCTURE), ONE HUNDRED SIXTY-TWO (ATHLETIC TRAINERS),
ONE HUNDRED  SIXTY-THREE  (MENTAL  HEALTH  PRACTITIONERS),  ONE  HUNDRED
SIXTY-FOUR (RESPIRATORY THERAPISTS AND RESPIRATORY THERAPY TECHNICIANS),
ONE  HUNDRED  SIXTY-FIVE  (CLINICAL LABORATORY TECHNOLOGY PRACTICE), ONE
HUNDRED SIXTY-SIX (MEDICAL PHYSICS PRACTICE), OR ONE HUNDRED SIXTY-SEVEN
(APPLIED BEHAVIOR ANALYSIS) of the education law [or a person  certified
under section twenty-five hundred sixty of this chapter].
  (e)  (I) "Patient information" or "information" means: any information
OR HEALTH RECORD concerning  or  relating  to  the  examination,  health
assessment including, but not limited to, a health assessment for insur-
ance  and  employment purposes [or], CONSULTING IN RELATION TO treatment
of PROVIDING DRUGS OR DEVICES, OR  PROVIDING  PROFESSIONAL  HEALTH  CARE
SERVICES  PERTAINING  TO an identifiable subject maintained or possessed
by a health care [facility or health  care  practitioner  who]  PROVIDER
WHICH  has provided or is providing services [for assessment of a health
condition including, but not limited to, a health assessment for  insur-
ance and employment purposes or has treated or is treating such subject,
except  (i)].   IT SHALL INCLUDE X-RAYS AND OTHER IMAGES, AND RECORDS OF
LABORATORY TESTS INCLUDING BUT NOT LIMITED  TO  TESTS  AND  EXAMINATIONS
ADMINISTERED  IN CLINICAL LABORATORIES OR BLOOD BANKS AS THOSE TERMS ARE
DEFINED IN SECTION FIVE HUNDRED SEVENTY-ONE OF THIS  CHAPTER.  IT  SHALL
INCLUDE  RECORDS  OF CHARGES TO, AND PAYMENTS RECEIVED FROM, THE PATIENT
OR IDENTIFIABLE SUBJECT OR ANY OTHER PARTY ON BEHALF OF THE  PATIENT  OR
IDENTIFIABLE SUBJECT, FOR ANY SUCH SERVICES, DRUGS OR DEVICES.
  (II)  "PATIENT  INFORMATION"  OR  "INFORMATION"  SHALL NOT INCLUDE (A)
information and clinical records subject to the  provisions  of  section
[23.05  or]  33.13  of  the mental hygiene law[, (ii)]; (B) NON-CLINICAL
personal notes and observations of a health care practitioner,  provided
that  such personal notes and observations are maintained by the practi-
tioner and not disclosed by the practitioner to any other  person  after
January  first,  nineteen hundred eighty-seven[, (iii)]; (C) information
maintained by a practitioner, concerning or relating to the prior  exam-
ination  or  treatment  of a subject received from another practitioner,
provided however, that such information may be requested by the  subject
directly  from such other practitioner in accordance with the provisions
of this section, AND PROVIDED FURTHER THAT THIS CLAUSE DOES NOT APPLY TO
ANY REFERRAL, ORDER, AUTHORIZATION, OR PRESCRIPTION  RECEIVED  FROM  THE
OTHER  PRACTITIONER;  and [(iv)] (D) data disclosed to a practitioner in
confidence by other persons on the basis of an  express  condition  that
such  data  would  never  be  disclosed to the subject or other persons,

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provided that such data has never been disclosed to any other person. If
at any time such  personal  notes  and  observations  or  such  data  is
disclosed,  it  shall  be considered patient information for purposes of
this section. For purposes of this subdivision, "disclosure to any other
person" shall not include disclosures made to practitioners as part of a
consultation or referral during the treatment of the subject, to persons
reviewing information or records in the ordinary course of ensuring that
a  provider  is in compliance with applicable quality of care, licensure
or accreditation standards, to an employee or  official  of  a  federal,
state or local agency for the sole purpose of conducting an audit in the
course  of  his  or  her  official duties, to the statewide planning and
research cooperative system, to other persons pursuant to a court order,
to 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,  to  qualified
researchers,  to  the  [state  board  for  professional medical conduct]
DEPARTMENT OF HEALTH OR THE DEPARTMENT OF EDUCATION  when  such  [board]
requests  such information in the exercise of its statutory function, to
an insurance carrier insuring, or an attorney  consulted  by,  a  health
care  provider, or to a health maintenance organization certified pursu-
ant to article forty-four of this chapter or licensed  pursuant  to  the
insurance law, or to the committee or a court pursuant to the provisions
of this section.
  (III)  For  purposes  of this subdivision treatment of a subject shall
not include diagnostic services,  except  mammography,  performed  by  a
practitioner   at  the  request  of  another  health  care  practitioner
provided,  however,  that  such  information,  and  mammograms,  may  be
requested by the subject directly from the practitioner at whose request
such   diagnostic  services  were  performed,  in  accordance  with  the
provisions of this section.
  (J) "PROFESSIONAL HEALTH CARE SERVICES" MEANS THE SERVICES OF A HEALTH
CARE PROVIDER EXAMINING, ASSESSING, TREATING OR CONSULTING  IN  RELATION
TO AN IDENTIFIABLE SUBJECT OF AN IDENTIFIABLE SUBJECT'S CONDITION, WITH-
IN THE SCOPE OF PRACTICE OF A HEALTH CARE PRACTITIONER.
  S  3.  Paragraphs  (d)  and  (e) of subdivision 2 of section 18 of the
public health law, as amended by chapter 576 of the laws  of  1998,  are
amended and a new paragraph (j) is added to read as follows:
  (d)  Subject  to  the provisions of subdivision three of this section,
upon the written request of any qualified person, a health care provider
shall furnish to such person, within a reasonable time, a  copy  of  any
patient  information requested, and original mammograms requested, which
the person is authorized to inspect pursuant to this subdivision.  WHERE
A HEALTH CARE PROVIDER MAINTAINS THE PATIENT INFORMATION  IN  ELECTRONIC
FORM,  IT  MAY  PROVIDE  THE PATIENT INFORMATION UNDER THIS SECTION IN A
REASONABLY USABLE ELECTRONIC FORM, AND SHALL PROVIDE IT IN SUCH FORM  IF
REQUESTED BY THE PERSON MAKING THE REQUEST.
  (e)  The  provider  may impose a reasonable charge for all inspections
and copies, not exceeding the REASONABLE AND ACTUAL  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 mammogram pursuant to this section shall not
exceed the documented costs associated therewith[. However, the  reason-
able charge], WHICH 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.    NO  CHARGE  MAY  BE

A. 3631                             5

IMPOSED  UNDER  THIS  SECTION  FOR  PROVIDING,  RELEASING  OR DELIVERING
PATIENT INFORMATION OR COPIES OF PATIENT INFORMATION WHERE REQUESTED FOR
THE PURPOSE OF SUPPORTING A CLAIM OR APPEAL FOR ANY  GOVERNMENT  BENEFIT
OR PROGRAM.
  (J)  WHERE  A  HEALTH  CARE PROVIDER PROVIDES HEALTH CARE PROFESSIONAL
SERVICES AS AN EMPLOYEE OF OR UNDER CONTRACT WITH  ANOTHER  HEALTH  CARE
PROVIDER,  COMPLIANCE  WITH  THIS SECTION SHALL BE THE RESPONSIBILITY OF
THE HEALTH CARE PROVIDER THAT EMPLOYS OR CONTRACTS FOR THE  SERVICES  OF
THE  OTHER  HEALTH  CARE PROVIDER, UNLESS THE TERMS OF THE EMPLOYMENT OR
CONTRACT  EXPLICITLY  PROVIDE  OTHERWISE.  IF  A  HEALTH  CARE  PROVIDER
RECEIVES A REQUEST UNDER THIS SECTION AND COMPLIANCE IS THE RESPONSIBIL-
ITY  OF  A  DIFFERENT  HEALTH  CARE PROVIDER UNDER THIS SUBDIVISION, THE
HEALTH CARE PROVIDER RECEIVING THE REQUEST SHALL IMMEDIATELY INFORM  THE
REQUESTING  PARTY  TO  WHICH  HEALTH CARE PROVIDER THE REQUEST SHOULD BE
DIRECTED.
  S 4. Paragraphs 1, 3 and 4 of subdivision (a) of section 33.16 of  the
mental  hygiene law, paragraphs 1 and 4 as amended by chapter 226 of the
laws of 1991, and paragraph 3 as amended by chapter 37 of  the  laws  of
2011, are amended to read as follows:
  1. "Clinical  record"  means any information concerning or relating to
the examination or treatment of, CONSULTING IN RELATION TO TREATMENT OF,
PROVIDING DRUGS OR DEVICES, OR PROVIDING PROFESSIONAL MENTAL  OR  BEHAV-
IORAL  HEALTH  CARE  SERVICES  PERTAINING  TO an identifiable patient or
client maintained or possessed by a facility which  has  treated  or  is
treating such patient or client, except data disclosed to a practitioner
in confidence by other persons on the basis of an express condition that
such  data  would  never  be disclosed to the patient or client or other
persons, provided that such data has never been disclosed by the practi-
tioner or a facility to any other person. If at any time  such  data  is
disclosed,  it  shall be considered clinical records for the purposes of
this section.   For purposes of this  subdivision,  "disclosure  to  any
other  person"  shall  not  include disclosures made pursuant to section
33.13 of this article, to practitioners as part  of  a  consultation  or
referral during the treatment of the patient or client, to the statewide
planning and research cooperative system, or to the committee or a court
pursuant  to  the  provisions of this section or to an insurance carrier
insuring, or an attorney consulted by,  a  facility.    CLINICAL  RECORD
SHALL  INCLUDE  X-RAYS AND OTHER IMAGES, AND RECORDS OF LABORATORY TESTS
INCLUDING BUT NOT LIMITED TO  TESTS  AND  EXAMINATIONS  ADMINISTERED  IN
CLINICAL  LABORATORIES  OR  BLOOD  BANKS  AS  THOSE TERMS ARE DEFINED IN
SECTION FIVE HUNDRED SEVENTY-ONE OF THE  PUBLIC  HEALTH  LAW.  IT  SHALL
INCLUDE  RECORDS  OF CHARGES TO, AND PAYMENTS RECEIVED FROM, THE PATIENT
OR IDENTIFIABLE SUBJECT OR ANY OTHER PARTY ON BEHALF OF THE  PATIENT  OR
IDENTIFIABLE SUBJECT, FOR ANY SUCH SERVICES, DRUGS OR DEVICES.
  3. "Facility"  means  a  facility  as  defined in section 1.03 of this
chapter, a program requiring approval for operation pursuant to  article
thirty-two  of this chapter, institutions offering training in psychoth-
erapy, psychoanalysis and related areas chartered  pursuant  to  section
two  hundred  sixteen  of the education law, or, notwithstanding section
1.03 of this chapter, any provider of services for persons  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;

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OR  AN  ENTITY  THAT  PROVIDES  MENTAL OR BEHAVIORAL HEALTH PROFESSIONAL
SERVICES BY EMPLOYING OR CONTRACTING FOR THE PROFESSIONAL SERVICES OF  A
MENTAL HEALTH PRACTITIONER.
  4. "Mental  health  practitioner"  or  "practitioner"  means  a person
employed by or rendering a service at a facility maintaining  the  clin-
ical  record WHO IS licensed under article one hundred thirty-one of the
education law (MEDICINE) who practices psychiatry or a  person  licensed
under article one hundred thirty-nine (NURSING), one hundred fifty-three
[or]  (PSYCHOLOGY),  one  hundred  fifty-four (SOCIAL WORK), ONE HUNDRED
SIXTY-THREE (MENTAL HEALTH PRACTITIONERS), OR  ONE  HUNDRED  SIXTY-SEVEN
(APPLIED BEHAVIOR ANALYSIS) of the education law or any other person not
prohibited by law from providing mental health or developmental disabil-
ities services.
  S  5.  Paragraphs  5  and 6 of subdivision (b) of section 33.16 of the
mental hygiene law, paragraph 5 as amended and paragraph 6 as renumbered
by chapter 233 of the laws of 1991, and paragraph 6 as amended by  chap-
ter 165 of the laws of 1991, are amended to read as follows:
  5.  Subject  to the provisions of this subdivision and subdivision (c)
of this section, upon the written request of  any  qualified  person,  a
facility  shall furnish to such person, within a reasonable time, a copy
of any clinical record requested  which  the  person  is  authorized  to
inspect  pursuant  to  this  subdivision.   WHERE A FACILITY MAINTAINS A
CLINICAL RECORD IN ELECTRONIC FORM, IT MAY PROVIDE THE RECORD UNDER THIS
SECTION IN A REASONABLY USABLE ELECTRONIC FORM, AND SHALL PROVIDE IT  IN
SUCH FORM IF REQUESTED BY THE QUALIFIED PERSON MAKING THE REQUEST.
  6. The facility may impose a reasonable charge for all inspections and
copies,  not  exceeding  the  DOCUMENTED  ACTUAL  costs incurred by such
provider[. However, the reasonable charge] WHICH 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.
NO CHARGE MAY BE IMPOSED UNDER THIS SECTION FOR PROVIDING, RELEASING  OR
DELIVERING   CLINICAL  RECORDS  OR  COPIES  OF  CLINICAL  RECORDS  WHERE
REQUESTED FOR THE PURPOSE OF  SUPPORTING  A  CLAIM  OR  APPEAL  FOR  ANY
GOVERNMENT BENEFIT OR PROGRAM.
  S  6.  Section  33.16 of the mental hygiene law is amended by adding a
new subdivision (l) to read as follows:
  (L) THIS SECTION SHALL NOT BE CONSTRUED  TO  SUPPLANT  OR  DIMINISH  A
RIGHT  OR BENEFIT THAT ANY PATIENT, QUALIFIED PERSON OR PERSON ACTING ON
BEHALF OF A PATIENT UNDER SECTIONS SEVENTEEN OR EIGHTEEN OF  THE  PUBLIC
HEALTH LAW HAS UNDER EITHER SUCH SECTIONS OF THE PUBLIC HEALTH LAW.
  S  7. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.