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.
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.
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.
