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A02869 Summary:

BILL NOA02869A
 
SAME ASNo Same As
 
SPONSORGottfried
 
COSPNSRAbinanti, Sepulveda, D'Urso, McDonough, Colton
 
MLTSPNSR
 
Amd 17 & 18, Pub Health L; amd 33.16, Ment Hyg L
 
Relates to 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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A02869 Actions:

BILL NOA02869A
 
01/23/2017referred to health
02/14/2017reported referred to codes
03/01/2017reported
03/02/2017advanced to third reading cal.104
03/29/2017passed assembly
03/29/2017delivered to senate
03/29/2017REFERRED TO HEALTH
01/03/2018DIED IN SENATE
01/03/2018RETURNED TO ASSEMBLY
01/03/2018ordered to third reading cal.233
01/09/2018amended on third reading 2869a
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A02869 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A2869A
 
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 list of mental health practitioners accordingly. Section 6 creates a new subdivision (I) 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   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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A02869 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2869--A
                                                                Cal. No. 233
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 23, 2017
                                       ___________
 
        Introduced  by  M.  of  A. GOTTFRIED, ABINANTI, SEPULVEDA, D'URSO, McDO-
          NOUGH, COLTON -- read once and referred to the Committee on Health  --
          ordered  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.
    21    [Either the physician or hospital] 2. A health care provider incurring
    22  the expense of providing copies of [x-rays, medical] health records [and
    23  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.
                                                                   LBD02268-02-7

        A. 2869--A                          2

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

        A. 2869--A                          3

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

        A. 2869--A                          4
 
     1  such  data  would  never  be  disclosed to the subject or other persons,
     2  provided that such data has never been disclosed to any other person. If
     3  at any time such  personal  notes  and  observations  or  such  data  is
     4  disclosed,  it  shall  be considered patient information for purposes of
     5  this section. For purposes of this subdivision, "disclosure to any other
     6  person" shall not include disclosures made to practitioners as part of a
     7  consultation or referral during the treatment of the subject, to persons
     8  reviewing information or records in the ordinary course of ensuring that
     9  a provider is in compliance with applicable quality of  care,  licensure
    10  or  accreditation  standards,  to  an employee or official of a federal,
    11  state or local agency for the sole purpose of conducting an audit in the
    12  course of his or her official duties,  to  the  statewide  planning  and
    13  research cooperative system, to other persons pursuant to a court order,
    14  to  governmental  agencies, insurance companies licensed pursuant to the
    15  insurance law and other third parties  requiring  information  necessary
    16  for  payments  to  be  made  to  or  on behalf of patients, to qualified
    17  researchers, to the  [state  board  for  professional  medical  conduct]
    18  department  of  health  or the department of education when such [board]
    19  requests such information in the exercise of its statutory function,  to
    20  an  insurance  carrier  insuring,  or an attorney consulted by, a health
    21  care provider, or to a health maintenance organization certified  pursu-
    22  ant  to  article  forty-four of this chapter or licensed pursuant to the
    23  insurance law, or to the committee or a court pursuant to the provisions
    24  of this section.
    25    (iii) For purposes of this subdivision treatment of  a  subject  shall
    26  not  include  diagnostic  services,  except  mammography, performed by a
    27  practitioner  at  the  request  of  another  health  care   practitioner
    28  provided,  however,  that  such  information,  and  mammograms,  may  be
    29  requested by the subject directly from the practitioner at whose request
    30  such  diagnostic  services  were  performed,  in  accordance  with   the
    31  provisions of this section.
    32    (j) "Professional health care services" means the services of a health
    33  care  provider  examining, assessing, treating or consulting in relation
    34  to an identifiable subject of an identifiable subject's condition, with-
    35  in the scope of practice of a health care practitioner.
    36    § 3. Paragraph (e) of subdivision 2 of section 18 of the public health
    37  law, as amended by chapter 322 of the laws of 2017, is amended and a new
    38  paragraph (j) is added to read as follows:
    39    (e) The provider may impose a reasonable charge  for  all  inspections
    40  and  copies,  not  exceeding the reasonable and actual costs incurred by
    41  such provider, provided, however, that  a  provider  may  not  impose  a
    42  charge  for  copying  an  original  mammogram when the original has been
    43  furnished to any qualified person and provided, further, that any charge
    44  for furnishing an original mammogram pursuant to this section shall  not
    45  exceed  the documented costs associated therewith[. However, the reason-
    46  able charge], which for paper copies shall not exceed seventy-five cents
    47  per page. A qualified person shall  not  be  denied  access  to  patient
    48  information solely because of inability to pay. No charge may be imposed
    49  under  this  section  for  providing,  releasing,  or delivering patient
    50  information or copies of patient information  where  requested  for  the
    51  purpose of supporting an application, claim or appeal for any government
    52  benefit  or  program,  provided that, where a provider maintains patient
    53  information in electronic form, it shall  provide  the  copy  in  either
    54  electronic  or  paper  form,  as  required  by the government benefit or
    55  program, or at the patient's request.

        A. 2869--A                          5
 
     1    (j) Where a health care provider  provides  health  care  professional
     2  services  as  an  employee of or under contract with another health care
     3  provider, compliance with this section shall be  the  responsibility  of
     4  the  health  care provider that employs or contracts for the services of
     5  the  other  health  care provider, unless the terms of the employment or
     6  contract  explicitly  provide  otherwise.  If  a  health  care  provider
     7  receives a request under this section and compliance is the responsibil-
     8  ity  of  a  different  health  care provider under this subdivision, the
     9  health care provider receiving the request shall immediately inform  the
    10  requesting  party  to  which  health care provider the request should be
    11  directed.
    12    § 4. Paragraphs 1, 3 and 4 of subdivision (a) of section 33.16 of  the
    13  mental  hygiene law, paragraphs 1 and 4 as amended by chapter 226 of the
    14  laws of 1991, and paragraph 3 as amended by chapter 37 of  the  laws  of
    15  2011, are amended to read as follows:
    16    1. "Clinical  record"  means any information concerning or relating to
    17  the examination or treatment of, consulting in relation to treatment of,
    18  providing drugs or devices, or providing professional mental  or  behav-
    19  ioral  health  care  services  pertaining  to an identifiable patient or
    20  client maintained or possessed by a facility which  has  treated  or  is
    21  treating such patient or client, except data disclosed to a practitioner
    22  in confidence by other persons on the basis of an express condition that
    23  such  data  would  never  be disclosed to the patient or client or other
    24  persons, provided that such data has never been disclosed by the practi-
    25  tioner or a facility to any other person. If at any time  such  data  is
    26  disclosed,  it  shall be considered clinical records for the purposes of
    27  this section.   For purposes of this  subdivision,  "disclosure  to  any
    28  other  person"  shall  not  include disclosures made pursuant to section
    29  33.13 of this article, to practitioners as part  of  a  consultation  or
    30  referral during the treatment of the patient or client, to the statewide
    31  planning and research cooperative system, or to the committee or a court
    32  pursuant  to  the  provisions of this section or to an insurance carrier
    33  insuring, or an attorney consulted by,  a  facility.    Clinical  record
    34  shall  include  X-rays and other images, and records of laboratory tests
    35  including but not limited to  tests  and  examinations  administered  in
    36  clinical  laboratories  or  blood  banks  as  those terms are defined in
    37  section five hundred seventy-one of the  public  health  law.  It  shall
    38  include  records  of charges to, and payments received from, the patient
    39  or identifiable subject or any other party on behalf of the  patient  or
    40  identifiable subject, for any such services, drugs or devices.
    41    3. "Facility"  means  a  facility  as  defined in section 1.03 of this
    42  chapter, a program requiring approval for operation pursuant to  article
    43  thirty-two  of this chapter, institutions offering training in psychoth-
    44  erapy, psychoanalysis and related areas chartered  pursuant  to  section
    45  two  hundred  sixteen  of the education law, or, notwithstanding section
    46  1.03 of this chapter, any provider of services for persons  with  mental
    47  illness  or  developmental  disabilities  which  is  operated  by, under
    48  contract with, receives funding from, or is otherwise approved to render
    49  services by, a  director  of  community  services  pursuant  to  article
    50  forty-one  of  this chapter or one or both of the offices, including any
    51  such provider which is exempt from  the  requirement  for  an  operating
    52  certificate under article sixteen or article thirty-one of this chapter;
    53  or  an  entity  that  provides  mental or behavioral health professional
    54  services by employing or contracting for the professional services of  a
    55  mental health practitioner.

        A. 2869--A                          6
 
     1    4. "Mental  health  practitioner"  or  "practitioner"  means  a person
     2  employed by or rendering a service at a facility maintaining  the  clin-
     3  ical  record who is licensed under article one hundred thirty-one of the
     4  education law (medicine) who practices psychiatry or a  person  licensed
     5  under article one hundred thirty-nine (nursing), one hundred fifty-three
     6  [or]  (psychology),  one  hundred  fifty-four (social work), one hundred
     7  sixty-three (mental health practitioners), or  one  hundred  sixty-seven
     8  (applied behavior analysis) of the education law or any other person not
     9  prohibited by law from providing mental health or developmental disabil-
    10  ities 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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