S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  1482--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 12, 2021
                                ___________
 
 Introduced  by  Sen. SERRANO -- read twice and ordered printed, and when
   printed to be committed  to  the  Committee  on  Health  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 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 322 of the laws of 2017, is amended to read as follows:
   §  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.
   [Either the physician or hospital] 2. A HEALTH CARE PROVIDER incurring
 the expense of providing copies of [x-rays, medical] HEALTH records [and
 test records including all laboratory tests] pursuant to the  provisions
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD00039-03-1

 S. 1482--A                          2
 
 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 medical records or copies  of  medical  records
 where  requested  for the purpose of supporting an application, claim or
 appeal for any government benefit or program,  provided  that,  where  a
 provider  maintains medical records in electronic form, it shall provide
 the copy in either electronic or paper form, as required by the  govern-
 ment benefit or program, or at the patient's request.
   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.
   § 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 (k) 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

 S. 1482--A                          3
 
 THAT PROVIDES THE HEALTH CARE PROFESSIONAL SERVICES  OF  A  HEALTH  CARE
 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, DENTAL HYGIENE, AND REGISTERED  DENTAL  ASSISTING),
 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] (OCCUPATIONAL THERAPY), ONE  HUNDRED  FIFTY-SEVEN
 (DIETETICS  AND  NUTRITION),  one  hundred  fifty-nine  (SPEECH-LANGUAGE
 PATHOLOGISTS AND 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

 S. 1482--A                          4
 
 confidence  by  other  persons on the basis of an express condition that
 such data would never be disclosed to  the  subject  or  other  persons,
 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.
   (K) "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.
   § 3. Paragraph (e) of subdivision 2 of section 18 of the public health
 law, as amended by chapter 322 of the laws of 2017, is amended and a new
 paragraph (j) is added to read as follows:
   (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 imposed
 under this section  for  providing,  releasing,  or  delivering  patient
 information  or  copies  of  patient information where requested for the
 purpose of supporting an application, claim or appeal for any government
 benefit or program, provided that, where a  provider  maintains  patient
 information  in  electronic  form,  it  shall provide the copy in either
 electronic or paper form, as  required  by  the  government  benefit  or
 program, or at the patient's request.

 S. 1482--A                          5
 
   (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.
   § 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;
 OR  AN  ENTITY  THAT  PROVIDES  MENTAL OR BEHAVIORAL HEALTH PROFESSIONAL
 SERVICES BY EMPLOYING OR CONTRACTING FOR THE PROFESSIONAL SERVICES OF  A
 MENTAL HEALTH PRACTITIONER.

 S. 1482--A                          6
 
   4. "Mental  health  practitioner"  or  "practitioner"  means  a person
 employed by or rendering a service at a facility maintaining  the  clin-
 ical record [licensed under article one hundred thirty-one of the educa-
 tion law who practices psychiatry or a person licensed under article one
 hundred  thirty-nine,  one hundred fifty-three or one hundred fifty-four
 of the education law] WHO IS A PRACTITIONER AS DEFINED IN SECTION  EIGH-
 TEEN  OF THE PUBLIC HEALTH LAW or any other person not prohibited by law
 from providing mental health or developmental disabilities services.
   § 5. Paragraph 6 of subdivision (b) of section  33.16  of  the  mental
 hygiene  law,  as amended by chapter 322 of the laws of 2017, is amended
 to read as follows:
   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 an application, claim or  appeal
 for  any  government benefit or program, provided that, where a provider
 maintains clinical records in electronic form, it shall provide the copy
 in either electronic or paper form, as required by the government  bene-
 fit or program, or at the patient's request.
   §  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.
   §  7. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a law.