Abinanti, McDonough, Colton, Galef, Sayegh, DeStefano, Darling, Barron, Simon
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.
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.
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.
