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A00839 Summary:

BILL NOA00839A
 
SAME ASSAME AS S01482-A
 
SPONSORGottfried
 
COSPNSRAbinanti, McDonough, Colton, Galef, Sayegh, DeStefano, Darling, Barron
 
MLTSPNSR
 
Amd §§17 & 18, Pub Health L; amd §33.16, Ment Hyg L
 
Relates to the provision of patient health information and medical records; expands the definition of medical records to include all health related records; prohibits fees for providing certain records.
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A00839 Actions:

BILL NOA00839A
 
01/06/2021referred to health
02/02/2021reported
02/04/2021advanced to third reading cal.81
02/10/2021amended on third reading 839a
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A00839 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A839A
 
SPONSOR: Gottfried
  TITLE OF BILL: An act to amend the public health law and the mental hygiene law, in relation to patient health information and medical records   PURPOSE OR GENERAL IDEA OF BILL: To make consistent the various laws on consumers' access to their health and medical records and to facilitate the transfer of such records among their health care professionals.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 amends Public Health Law (PHL) § 17 relating to the transfer of health information and medical records among health care providers and broaden application to licensed professionals who either maintain or need access to such information. Sections 2 and 3 make similar amendments to PHL § 18 relating to the transfer of health information or medical records to a patient or his or her authorized representative. The bill expands the definition of "health care provider" § 18. The definition also applies to § 17. Sections 4 and 5 make similar amendments to Mental Hygiene Law § 33.16, relating to the transfer of clinical records among mental health practi- tioners and access for authorized patient representatives, and updates the definition of mental health practitioners by referencing the defi- nition in Public Health Law Section 18. Section 6 creates a new subdivision (1) within Mental Hygiene Law 33.16 to connect its provisions to PHL §§ 17 and 18.   JUSTIFICATION: Computer systems and the internet have revolutionized the storage and transfer of health records, and the number of health care professions under obligation to keep such records has grown. This bill would make consistent the various sections of law in order to improve continuity of care across providers in different settings.   PRIOR LEGISLATIVE HISTORY: 2015-2016: A.3631 advanced to third reading calendar 2017-2018: A.2869a advanced to third reading calendar 2019-2020: A.1120 advanced to third reading calendar   FISCAL IMPLICATIONS: This bill would have no fiscal impact on the State or local governments.   EFFECTIVE DATE: January 1 following the date on which it became law.
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A00839 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         839--A
                                                                 Cal. No. 81
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  M.  of A. GOTTFRIED, ABINANTI, McDONOUGH, COLTON, GALEF,
          SAYEGH, DeSTEFANO, DARLING, BARRON -- read once and  referred  to  the
          Committee  on  Health  -- reported from committee, advanced to a third
          reading, amended and ordered reprinted, retaining  its  place  on  the
          order of third reading
 
        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:
 
     1    Section  1. Section 17 of the public health law, as amended by chapter
     2  165 of the laws of 1991, the first undesignated paragraph as amended  by
     3  chapter 322 of the laws of 2017, is amended to read as follows:
     4    §  17. Release of [medical] health records to a designated health care
     5  provider.  1. Upon the written request of any competent patient,  parent
     6  or  guardian  of  an  infant,  a  guardian appointed pursuant to article
     7  eighty-one of the mental hygiene law, or conservator of  a  conservatee,
     8  [an  examining,  consulting  or  treating  physician or hospital must] a
     9  health care provider who has provided professional health care  services
    10  pertaining  to  a  patient  shall release and deliver, exclusive of non-
    11  clinical personal notes of the [said physician or hospital] health  care
    12  provider,  copies of all [x-rays, medical] requested health records [and
    13  test records including all laboratory tests] regarding that  patient  to
    14  any  other  designated  [physician  or hospital provided, however, that]
    15  health care provider.  However, such records concerning the treatment of
    16  an infant patient for venereal disease or the performance of an abortion
    17  operation upon such infant patient shall  not  be  released  or  in  any
    18  manner  be  made available to the parent or guardian of such infant, and
    19  provided, further, that original mammograms, rather than copies thereof,
    20  shall be released and delivered.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00039-03-1

        A. 839--A                           2
 
     1    [Either the physician or hospital] 2. A health care provider incurring
     2  the expense of providing copies of [x-rays, medical] health records [and
     3  test records including all laboratory tests] pursuant to the  provisions
     4  of  this section may impose a reasonable charge to be paid by the person
     5  requesting  the release and deliverance of such records as reimbursement
     6  [for such] not to exceed the health  care  provider's  actual  expenses,
     7  provided, however, that the [physician or hospital] health care provider
     8  may  not  impose  a  charge  for  copying an original mammogram when the
     9  original has been released or delivered to any competent patient, parent
    10  or guardian of an infant,  a  guardian  appointed  pursuant  to  article
    11  eighty-one  of the mental hygiene law, or a conservator of a conservatee
    12  and provided, further, that any charge for delivering an original mammo-
    13  gram pursuant to this section shall not  exceed  the  documented  actual
    14  costs  associated therewith[. However, the reasonable charge], which for
    15  paper copies shall not exceed seventy-five cents per page. A release  of
    16  records under this section shall not be denied solely because of inabil-
    17  ity  to  pay. No charge may be imposed under this section for providing,
    18  releasing, or delivering medical records or copies  of  medical  records
    19  where  requested  for the purpose of supporting an application, claim or
    20  appeal for any government benefit or program,  provided  that,  where  a
    21  provider  maintains medical records in electronic form, it shall provide
    22  the copy in either electronic or paper form, as required by the  govern-
    23  ment benefit or program, or at the patient's request.
    24    3.  Where  a  health  care  provider provides health care professional
    25  services as an employee of or under contract with  another  health  care
    26  provider,  compliance  with  this section shall be the responsibility of
    27  the health care provider that employs or contracts for the  services  of
    28  the  other  health  care provider, unless the terms of the employment or
    29  contract  explicitly  provide  otherwise.  If  a  health  care  provider
    30  receives a request under this section and compliance is the responsibil-
    31  ity  of  a  different  health  care provider under this subdivision, the
    32  health care provider receiving the request shall immediately inform  the
    33  requesting  party  to  which  health care provider the request should be
    34  directed.
    35    4. For the purposes of this section the [term "laboratory tests" shall
    36  include] following terms shall have the following meanings:
    37    (a) "Health record" includes any patient  information  as  defined  in
    38  section  eighteen of this title, X-rays and other images, and records of
    39  laboratory tests including but not [be] limited to  tests  and  examina-
    40  tions  administered  in  clinical  laboratories  or blood banks as those
    41  terms are defined in section five hundred seventy-one of this chapter.
    42    (b) "Health care provider" and "health  care  practitioner"  have  the
    43  same meanings as defined in section eighteen of this title.
    44    (c) "Professional health care services" means the services of a health
    45  care  provider  examining, assessing, treating or consulting in relation
    46  to a patient or patient's condition, within the scope of practice  of  a
    47  health care practitioner.
    48    § 2. Paragraphs (c), (d) and (e) of subdivision 1 of section 18 of the
    49  public health law, paragraphs (c) and (d) as added by chapter 497 of the
    50  laws of 1986, paragraph (e) as amended by chapter 2 of the laws of 1990,
    51  and  the closing paragraph of paragraph (e) as amended by chapter 576 of
    52  the laws of 1998, are amended and a new paragraph (k) is added  to  read
    53  as follows:
    54    (c)  "Health  care facility" or "facility" means a hospital as defined
    55  in article twenty-eight of this chapter, a home care services agency  as
    56  defined  in  article thirty-six of this chapter, a hospice as defined in

        A. 839--A                           3
 
     1  article forty of this chapter,  a  health  maintenance  organization  as
     2  defined  in  article  forty-four  of this chapter, [and] a shared health
     3  facility as defined in article forty-seven of this chapter; or an entity
     4  that  provides  the  health  care professional services of a health care
     5  provider by employing or contracting for the  health  care  professional
     6  services of a health care provider.
     7    (d)  "Health  care  practitioner"  or  "practitioner"  means  a person
     8  licensed under article one hundred thirty-one  (medicine),  one  hundred
     9  thirty-one-B  (physician assistants), one hundred thirty-one-C (special-
    10  ist assistant), one hundred thirty-two (chiropractic), one hundred thir-
    11  ty-three (dentistry, dental hygiene, and registered  dental  assisting),
    12  one hundred thirty-four (licensed perfusionists), one hundred thirty-six
    13  (physical  therapy and physical therapy assistants), one hundred thirty-
    14  seven (pharmacy), one hundred thirty-nine (nursing), one  hundred  forty
    15  (professional midwifery practice), one hundred forty-one (podiatry), one
    16  hundred  forty-three  (optometry),  one  hundred  forty-four (ophthalmic
    17  dispensing), one hundred fifty-three (psychology),  one  hundred  fifty-
    18  four  (social  work),  one  hundred  fifty-five  (massage  therapy), one
    19  hundred fifty-six [or] (occupational therapy), one  hundred  fifty-seven
    20  (dietetics  and  nutrition),  one  hundred  fifty-nine  (speech-language
    21  pathologists and audiologists), one  hundred  sixty  (acupuncture),  one
    22  hundred  sixty-two  (athletic trainers), one hundred sixty-three (mental
    23  health practitioners), one hundred  sixty-four  (respiratory  therapists
    24  and  respiratory  therapy technicians), one hundred sixty-five (clinical
    25  laboratory technology practice), one hundred sixty-six (medical  physics
    26  practice), or one hundred sixty-seven (applied behavior analysis) of the
    27  education  law  [or a person certified under section twenty-five hundred
    28  sixty of this chapter].
    29    (e) (i) "Patient information" or "information" means: any  information
    30  or  health  record  concerning  or  relating  to the examination, health
    31  assessment including, but not limited to, a health assessment for insur-
    32  ance and employment purposes [or], consulting in relation  to  treatment
    33  of  providing  drugs  or  devices, or providing professional health care
    34  services pertaining to an identifiable subject maintained  or  possessed
    35  by  a  health  care  [facility or health care practitioner who] provider
    36  which has provided or is providing services [for assessment of a  health
    37  condition  including, but not limited to, a health assessment for insur-
    38  ance and employment purposes or has treated or is treating such subject,
    39  except (i)].  It shall include X-rays and other images, and  records  of
    40  laboratory  tests  including  but  not limited to tests and examinations
    41  administered in clinical laboratories or blood banks as those terms  are
    42  defined  in  section  five hundred seventy-one of this chapter. It shall
    43  include records of charges to, and payments received from,  the  patient
    44  or  identifiable  subject or any other party on behalf of the patient or
    45  identifiable subject, for any such services, drugs or devices.
    46    (ii) "Patient information" or  "information"  shall  not  include  (A)
    47  information  and  clinical  records subject to the provisions of section
    48  [23.05 or] 33.13 of the mental hygiene  law[,  (ii)];  (B)  non-clinical
    49  personal  notes and observations of a health care practitioner, provided
    50  that such personal notes and observations are maintained by the  practi-
    51  tioner  and  not disclosed by the practitioner to any other person after
    52  January first, nineteen hundred eighty-seven[, (iii)];  (C)  information
    53  maintained  by a practitioner, concerning or relating to the prior exam-
    54  ination or treatment of a subject received  from  another  practitioner,
    55  provided  however, that such information may be requested by the subject
    56  directly from such other practitioner in accordance with the  provisions

        A. 839--A                           4
 
     1  of this section, and provided further that this clause does not apply to
     2  any  referral,  order,  authorization, or prescription received from the
     3  other practitioner; and [(iv)] (D) data disclosed to a  practitioner  in
     4  confidence  by  other  persons on the basis of an express condition that
     5  such data would never be disclosed to  the  subject  or  other  persons,
     6  provided that such data has never been disclosed to any other person. If
     7  at  any  time  such  personal  notes  and  observations  or such data is
     8  disclosed, it shall be considered patient information  for  purposes  of
     9  this section. For purposes of this subdivision, "disclosure to any other
    10  person" shall not include disclosures made to practitioners as part of a
    11  consultation or referral during the treatment of the subject, to persons
    12  reviewing information or records in the ordinary course of ensuring that
    13  a  provider  is in compliance with applicable quality of care, licensure
    14  or accreditation standards, to an employee or  official  of  a  federal,
    15  state or local agency for the sole purpose of conducting an audit in the
    16  course  of  his  or  her  official duties, to the statewide planning and
    17  research cooperative system, to other persons pursuant to a court order,
    18  to governmental agencies, insurance companies licensed pursuant  to  the
    19  insurance  law  and  other third parties requiring information necessary
    20  for payments to be made to  or  on  behalf  of  patients,  to  qualified
    21  researchers,  to  the  [state  board  for  professional medical conduct]
    22  department of health or the department of education  when  such  [board]
    23  requests  such information in the exercise of its statutory function, to
    24  an insurance carrier insuring, or an attorney  consulted  by,  a  health
    25  care  provider, or to a health maintenance organization certified pursu-
    26  ant to article forty-four of this chapter or licensed  pursuant  to  the
    27  insurance law, or to the committee or a court pursuant to the provisions
    28  of this section.
    29    (iii)  For  purposes  of this subdivision treatment of a subject shall
    30  not include diagnostic services,  except  mammography,  performed  by  a
    31  practitioner   at  the  request  of  another  health  care  practitioner
    32  provided,  however,  that  such  information,  and  mammograms,  may  be
    33  requested by the subject directly from the practitioner at whose request
    34  such   diagnostic  services  were  performed,  in  accordance  with  the
    35  provisions of this section.
    36    (k) "Professional health care services" means the services of a health
    37  care provider examining, assessing, treating or consulting  in  relation
    38  to an identifiable subject of an identifiable subject's condition, with-
    39  in the scope of practice of a health care practitioner.
    40    § 3. Paragraph (e) of subdivision 2 of section 18 of the public health
    41  law, as amended by chapter 322 of the laws of 2017, is amended and a new
    42  paragraph (j) is added to read as follows:
    43    (e)  The  provider  may impose a reasonable charge for all inspections
    44  and copies, not exceeding the reasonable and actual  costs  incurred  by
    45  such  provider,  provided,  however,  that  a  provider may not impose a
    46  charge for copying an original mammogram  when  the  original  has  been
    47  furnished to any qualified person and provided, further, that any charge
    48  for  furnishing an original mammogram pursuant to this section shall not
    49  exceed the documented costs associated therewith[. However, the  reason-
    50  able charge], which for paper copies shall not exceed seventy-five cents
    51  per  page.  A  qualified  person  shall  not be denied access to patient
    52  information solely because of inability to pay. No charge may be imposed
    53  under this section  for  providing,  releasing,  or  delivering  patient
    54  information  or  copies  of  patient information where requested for the
    55  purpose of supporting an application, claim or appeal for any government
    56  benefit or program, provided that, where a  provider  maintains  patient

        A. 839--A                           5
 
     1  information  in  electronic  form,  it  shall provide the copy in either
     2  electronic or paper form, as  required  by  the  government  benefit  or
     3  program, or at the patient's request.
     4    (j)  Where  a  health  care provider provides health care professional
     5  services as an employee of or under contract with  another  health  care
     6  provider,  compliance  with  this section shall be the responsibility of
     7  the health care provider that employs or contracts for the  services  of
     8  the  other  health  care provider, unless the terms of the employment or
     9  contract  explicitly  provide  otherwise.  If  a  health  care  provider
    10  receives a request under this section and compliance is the responsibil-
    11  ity  of  a  different  health  care provider under this subdivision, the
    12  health care provider receiving the request shall immediately inform  the
    13  requesting  party  to  which  health care provider the request should be
    14  directed.
    15    § 4. Paragraphs 1, 3 and 4 of subdivision (a) of section 33.16 of  the
    16  mental  hygiene law, paragraphs 1 and 4 as amended by chapter 226 of the
    17  laws of 1991, and paragraph 3 as amended by chapter 37 of  the  laws  of
    18  2011, are amended to read as follows:
    19    1. "Clinical  record"  means any information concerning or relating to
    20  the examination or treatment of, consulting in relation to treatment of,
    21  providing drugs or devices, or providing professional mental  or  behav-
    22  ioral  health  care  services  pertaining  to an identifiable patient or
    23  client maintained or possessed by a facility which  has  treated  or  is
    24  treating such patient or client, except data disclosed to a practitioner
    25  in confidence by other persons on the basis of an express condition that
    26  such  data  would  never  be disclosed to the patient or client or other
    27  persons, provided that such data has never been disclosed by the practi-
    28  tioner or a facility to any other person. If at any time  such  data  is
    29  disclosed,  it  shall be considered clinical records for the purposes of
    30  this section.   For purposes of this  subdivision,  "disclosure  to  any
    31  other  person"  shall  not  include disclosures made pursuant to section
    32  33.13 of this article, to practitioners as part  of  a  consultation  or
    33  referral during the treatment of the patient or client, to the statewide
    34  planning and research cooperative system, or to the committee or a court
    35  pursuant  to  the  provisions of this section or to an insurance carrier
    36  insuring, or an attorney consulted by,  a  facility.    Clinical  record
    37  shall  include  X-rays and other images, and records of laboratory tests
    38  including but not limited to  tests  and  examinations  administered  in
    39  clinical  laboratories  or  blood  banks  as  those terms are defined in
    40  section five hundred seventy-one of the  public  health  law.  It  shall
    41  include  records  of charges to, and payments received from, the patient
    42  or identifiable subject or any other party on behalf of the  patient  or
    43  identifiable subject, for any such services, drugs or devices.
    44    3. "Facility"  means  a  facility  as  defined in section 1.03 of this
    45  chapter, a program requiring approval for operation pursuant to  article
    46  thirty-two  of this chapter, institutions offering training in psychoth-
    47  erapy, psychoanalysis and related areas chartered  pursuant  to  section
    48  two  hundred  sixteen  of the education law, or, notwithstanding section
    49  1.03 of this chapter, any provider of services for persons  with  mental
    50  illness  or  developmental  disabilities  which  is  operated  by, under
    51  contract with, receives funding from, or is otherwise approved to render
    52  services by, a  director  of  community  services  pursuant  to  article
    53  forty-one  of  this chapter or one or both of the offices, including any
    54  such provider which is exempt from  the  requirement  for  an  operating
    55  certificate under article sixteen or article thirty-one of this chapter;
    56  or  an  entity  that  provides  mental or behavioral health professional

        A. 839--A                           6
 
     1  services by employing or contracting for the professional services of  a
     2  mental health practitioner.
     3    4. "Mental  health  practitioner"  or  "practitioner"  means  a person
     4  employed by or rendering a service at a facility maintaining  the  clin-
     5  ical record [licensed under article one hundred thirty-one of the educa-
     6  tion law who practices psychiatry or a person licensed under article one
     7  hundred  thirty-nine,  one hundred fifty-three or one hundred fifty-four
     8  of the education law] who is a practitioner as defined in section  eigh-
     9  teen  of the public health law or any other person not prohibited by law
    10  from providing mental health or developmental disabilities services.
    11    § 5. Paragraph 6 of subdivision (b) of section  33.16  of  the  mental
    12  hygiene  law,  as amended by chapter 322 of the laws of 2017, is amended
    13  to read as follows:
    14    6. The facility may impose a reasonable charge for all inspections and
    15  copies, not exceeding the  documented  actual  costs  incurred  by  such
    16  provider[.  However, the reasonable charge] which for paper copies shall
    17  not exceed seventy-five cents per page. A qualified person shall not  be
    18  denied access to the clinical record solely because of inability to pay.
    19  No charge may be imposed under this section for providing, releasing, or
    20  delivering   clinical  records  or  copies  of  clinical  records  where
    21  requested for the purpose of supporting an application, claim or  appeal
    22  for  any  government benefit or program, provided that, where a provider
    23  maintains clinical records in electronic form, it shall provide the copy
    24  in either electronic or paper form, as required by the government  bene-
    25  fit or program, or at the patient's request.
    26    §  6.  Section  33.16 of the mental hygiene law is amended by adding a
    27  new subdivision (l) to read as follows:
    28    (l) This section shall not be construed  to  supplant  or  diminish  a
    29  right  or benefit that any patient, qualified person or person acting on
    30  behalf of a patient under sections seventeen or eighteen of  the  public
    31  health law has under either such sections of the public health law.
    32    §  7. This act shall take effect on the first of January next succeed-
    33  ing the date on which it shall have become a law.
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