§ 33.16 Access to clinical records.

(a) Definitions. For the purposes of this section:

1. "Clinical record" means any information concerning or relating to
the examination or treatment of 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
practitioner 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.

2. "Committee" means a clinical record access review committee
appointed pursuant to this section.

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
psychotherapy, 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.

4. "Mental health practitioner" or "practitioner" means a person
employed by or rendering a service at a facility maintaining the
clinical record licensed under article one hundred thirty-one of the
education 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 or any other person not prohibited by
law from providing mental health or developmental disabilities services.

5. "Patient or client" means an individual concerning whom a clinical
record is maintained or possessed by a facility as defined in paragraph
three of this subdivision.

6. "Qualified person" means any properly identified patient or client,
guardian of a person with a developmental disability appointed pursuant
to article seventeen-A of the surrogate's court procedure act, or
committee for an incompetent appointed pursuant to this chapter or a
parent of an infant, or a guardian of an infant appointed pursuant to
article seventeen of the surrogate's court procedure act or other
legally appointed guardian of an infant who may be entitled to request
access to a clinical record pursuant to paragraph three of subdivision
(b) of this section, or a parent, spouse, adult child, or adult sibling
of an adult patient or client who may be entitled to request access to a
clinical record pursuant to paragraph four of subdivision (b) of this
section.

7. "Treating practitioner" means the practitioner, who has or had
primary responsibility for the care of the patient or client within the
facility or if such practitioner is unavailable, a practitioner
designated by such facility.

(b) Access by qualified persons. 1. Subject to the provisions of
subdivision (c) of this section, upon the written request of any patient
or client, a facility shall provide an opportunity, within ten days, for
such individual to inspect any clinical record concerning or relating to
the examination or treatment of such individual in the possession of
such facility.

2. Subject to the provisions of subdivision (c) of this section, upon
the written request of a committee for an incompetent appointed pursuant
to this chapter or a guardian of the person of a person with a
developmental disability appointed pursuant to article seventeen-A of
the surrogate's court procedure act, a facility shall provide an
opportunity, within ten days, for the committee or such guardian to
inspect any clinical record concerning the patient or client in the
possession of such facility. Provided, however, in the case of any such
request by such a guardian to inspect the clinical record concerning a
client eighteen years of age or older, the facility shall notify such
client of such request.

3. Subject to the provisions of subdivision (c) of this section and
except as otherwise provided by law, upon the written request of a
parent of an infant or guardian of an infant appointed pursuant to
article seventeen of the surrogate's court procedure act, or any other
legally appointed guardian of an infant, a facility shall provide an
opportunity, within ten days, for such parent or guardian to inspect any
clinical record maintained or possessed by such facility concerning care
and treatment of the infant for which the consent of a parent or
guardian was obtained or has been requested; provided, however, that
such parent or guardian shall not be entitled to inspect or make copies
of any clinical record concerning the care and treatment of an infant
where the treating practitioner determines that access to the
information requested by such parent or guardian would have a
detrimental effect on the practitioner's professional relationship with
the infant, or on the care and treatment of the infant or on the
infant's relationship with his or her parents or guardians.

4. Subject to the provisions of subdivision (c) of this section and
except as otherwise required by law, upon the written request of a
parent of an adult patient or client, spouse, adult child, or adult
sibling of a patient or client, a facility shall provide an opportunity,
within ten days, for such parent, spouse, adult child or adult sibling
to inspect any clinical record maintained or possessed by such facility
concerning the care and treatment of such patient or client for which
the parent, spouse, adult child or adult sibling is authorized pursuant
to law, rule or regulation to provide consent and has consented or is
being requested to provide such consent; provided, however, that such
parent, spouse, adult child or adult sibling shall not be entitled to
inspect or make copies of any clinical record concerning the care and
treatment of the patient or client where the treating practitioner
determines that access to the information requested by such parent,
spouse, adult child or adult sibling would have a detrimental effect on
the practitioner's professional relationship with the patient or client,
or on the care and treatment of the patient or client or on the
relationship of the patient or client with his or her parents, spouse,
adult child or adult sibling. Any inspection of a clinical record made
pursuant to this paragraph shall be limited to that information which is
relevant in light of the reason for such inspection.

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.

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. 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 benefit or program, or at the
patient's request.

7. A facility may place reasonable limitations on the time, place, and
frequency of any inspection of clinical records.

8. A treating practitioner may request the opportunity to review the
patient information with the qualified person requesting such
information, but such review shall not be a prerequisite for furnishing
the record.

9. A facility may make available for inspection either the original or
a copy of clinical records.

(c) Limitations on access. 1. Upon receipt of a written request by a
qualified person to inspect or copy the clinical record maintained by a
facility, the facility shall inform the treating practitioner of the
request. The treating practitioner may review the information requested.
Unless the treating practitioner determines pursuant to paragraph three
of this subdivision that the requested review of the clinical record can
reasonably be expected to cause substantial and identifiable harm to the
patient or client or others which would outweigh the qualified person's
right of access to the record, review of such record shall be permitted
or copies provided.

2. A patient or client over the age of twelve may be notified of any
request by a qualified person to review his/her record and if the
patient or client objects to disclosure, the facility, in consultation
with the treating practitioner may deny the request.

3. If, after consideration of all the attendant facts and
circumstances, the practitioner or treating practitioner determines that
the requested review of all or part of the clinical record can
reasonably be expected to cause substantial and identifiable harm to the
patient or client or others, or would have a detrimental effect as
defined in subdivision (b) of this section, the facility may accordingly
deny access to all or a part of the record and may grant access to a
prepared summary of the record. In determining whether the review can
reasonably be expected to cause substantial and identifiable harm to the
patient or client or others which would outweigh the qualified person's
right of access to the record or whether review of the record would have
a detrimental effect as defined in subdivision (b) of this section, the
practitioner or treating practitioner may consider, among other things,
the following: (i) the need for, and the fact of, continuing care and
treatment; (ii) the extent to which the knowledge of the information
contained in the clinical record may be harmful to the health or safety
of the patient or client or others; (iii) the extent to which the
clinical record contains sensitive information disclosed in confidence
to the practitioner or treating practitioner by family members, friends
and other persons; (iv) the extent to which the clinical record contains
sensitive information disclosed to the practitioner or the treating
practitioner by the patient or client which would be injurious to the
patient's or client's relationships with other persons except where the
patient or client is requesting information concerning himself or
herself; and (v) in the case of a minor making a request for access
pursuant to paragraph one of subdivision (b), the age of the patient or
client.

4. In the event of a denial of access, the qualified person shall be
informed by the facility of such denial, and of the qualified person's
right to obtain, without cost, a review of the denial by the appropriate
clinical record access review committee. If the qualified person
requests such review, the facility shall, within ten days of receipt of
such request, transmit the record to the chairman of the appropriate
committee with a statement setting forth the specific reasons access was
denied. After an in camera review of the materials provided and after
providing all parties a reasonable opportunity to be heard, the
committee shall promptly make a determination whether the requested
reviews of the record can reasonably be expected to cause substantial
and identifiable harm to the patient or client or others which outweighs
the qualified person's right of access to the record pursuant to
paragraph three of this subdivision or whether the requested review
would have a detrimental effect as defined in subdivision (b) of this
section, and shall accordingly determine whether access to all or part
of such record shall be granted. In the event that the committee
determines that the request for access shall be granted in whole or in
part, the committee shall notify all parties and the facility shall
grant access pursuant to such determination.

5. In the event that access is denied in whole or in part the
committee shall notify the qualified person of his or her right to seek
judicial review of the facility's determination pursuant to this
section. Within thirty days of receiving notification of the decision,
the qualified person may commence, upon notice, a special proceeding in
supreme court for a judgment requiring the provider to make available
the record for inspection or copying. The court upon such application
and after an in camera review of the materials provided, including the
determination and record of the committee, and after providing all
parties an opportunity to be heard, shall determine whether there exists
a reasonable basis for the denial of access. The relief available
pursuant to this section shall be limited to a judgment requiring the
facility to make available to the qualified person the requested record
for inspection or copying.

(d) Clinical records access review committees. The commissioner of
mental health, the commissioner of developmental disabilities and the
commissioner of alcoholism and substance abuse services shall appoint
clinical record access review committees to hear appeals of the denial
of access to patient or client records as provided in paragraph four of
subdivision (c) of this section. Members of such committees shall be
appointed by the respective commissioners. Such clinical record access
review committees shall consist of no less than three nor more than five
persons. The commissioners shall promulgate rules and regulations
necessary to effectuate the provisions of this subdivision.

(f) Applicability of federal law. Whenever federal law or applicable
federal regulations restrict, or as a condition for the receipt of
federal aid require, that the release of clinical records or information
be more restrictive than is provided under this section, the provisions
of federal law or federal regulation shall be controlling.

(g) Challenges to accuracy. A qualified person may challenge the
accuracy of information maintained in the clinical record and may
require that a brief written statement prepared by him/her concerning
the challenged information be inserted into the clinical record. This
statement shall become a permanent part of the record and shall be
released whenever the clinical record at issue is released. This
subdivision shall apply only to factual statements and shall not include
a provider's observations, inferences or conclusions. A facility may
place reasonable restrictions on the time and frequency of any
challenges to accuracy.

(h) Waivers void. Any agreement by an individual to waive any right to
inspect, copy or seek correction of the clinical record as provided for
in this section shall be deemed to be void as against public policy and
wholly unenforceable.

(i) Disclosure. Nothing contained in this section shall restrict,
expand or in any way limit the disclosure of any information pursuant to
articles twenty-three, thirty-one and forty-five of the civil practice
law and rules or section six hundred seventy-seven of the county law.

(j) Proceedings. No proceeding shall be brought or penalty assessed,
except as provided for in this section, against a facility, which in
good faith, denies access to a clinical record.

(k) Immunity from liability. No facility, practitioner, treating
practitioner, mental health practitioner or clinical records access
review committee member shall be subjected to civil liability arising
solely from granting or providing access to any clinical record in
accordance with this section.