BILL NUMBER:  S685

 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 (18) 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 SS 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 18 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.
S.5224 Referred to mental health.
S. 3636A of 2015/2016; Passed Senate

 BUDGET IMPLICATIONS :

None.

 EFFECTIVE DATE :
Section 1 of the bill would take effect 180 days after enactment and
Section 2 would take effect immediately.

                                
 
BILL NUMBER: S685A

SPONSOR: ORTT
 
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 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
relettered subdivision (i) and a new subdivision (f) is added to read as
follows: Notwithstanding the provisions of section 33.13 and 33.16 of
this chapter, the commissioner shall promulgate regulation in accordance
with the federal Health Insurance Portability and Accountability Act of
              

1996, and any regulations promulgated thereunder, to cover 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 MHL § 33.16.

Section 2 of the bill would amend MHL § 33.13(c) by adding a new para-
graph (17) 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 indi-
vidual to a family member who is not a "qualified person" pursuant to
MHL 6§ 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 informa-
tion 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 Mental Health Law (MHL) allows for the release of records
of deceased residents of OPWDD facilities only to those "qualified"
family members specified in MHL § 13.09, namely, a parent, a spouse, or
an adult child of such individual. This bill would authorize the commis-
sioner 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 individ-
ual's services plan.  The bill would also amend MHL § 33.13 by adding a
new paragraph 16 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: A.8471A Referred to Mental Health
2013-14: A.5924 Referred to Mental Health
2015-16: A.1090 Referred to Mental Health
2017-18: A.2410 Referred to Mental Health

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
Section 1 of the bill would take effect 180 days after enactment and
Section 2 would take effect immediately.