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S03445 Summary:

BILL NOS03445
 
SAME ASNo Same As
 
SPONSORSERRANO
 
COSPNSR
 
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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S03445 Actions:

BILL NOS03445
 
01/23/2017REFERRED TO HEALTH
01/03/2018REFERRED TO HEALTH
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S03445 Memo:

Memo not available
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S03445 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3445
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                    January 23, 2017
                                       ___________
 
        Introduced  by  Sen. SERRANO -- read twice and ordered printed, and when
          printed to be committed to the Committee on Health
 
        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 576 of the laws of 1998, 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.  Where a health care provider maintains
    21  a health record in electronic form, it may provide the record under this
    22  section  in a reasonably usable electronic form, and shall provide it in
    23  such form if requested by the person making the request.
    24    [Either the physician or hospital] 2. A health care provider incurring
    25  the expense of providing copies of [x-rays, medical] health records [and

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02268-01-7

        S. 3445                             2

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

        S. 3445                             3

     1  provider by employing or contracting for the  health  care  professional
     2  services of a health care provider.
     3    (d)  "Health  care  practitioner"  or  "practitioner"  means  a person
     4  licensed under article one hundred thirty-one  (medicine),  one  hundred
     5  thirty-one-B  (physician assistants), one hundred thirty-one-C (special-
     6  ist assistant), one hundred thirty-two (chiropractic), one hundred thir-
     7  ty-three  (dentistry  and  dental  hygiene),  one  hundred   thirty-four
     8  (licensed  perfusionists),  one hundred thirty-six (physical therapy and
     9  physical therapy assistants), one hundred thirty-seven  (pharmacy),  one
    10  hundred thirty-nine (nursing), one hundred forty (professional midwifery
    11  practice),  one  hundred  forty-one  (podiatry), one hundred forty-three
    12  (optometry), one hundred forty-four (ophthalmic dispensing), one hundred
    13  fifty-three (psychology), one  hundred  fifty-four  (social  work),  one
    14  hundred  fifty-five (massage therapy), one hundred fifty-six [or] (occu-
    15  pational therapy, one hundred fifty-seven (dietetics and nutrition), one
    16  hundred fifty-nine (speech-language pathologists or  audiologists),  one
    17  hundred  sixty (acupuncture), one hundred sixty-two (athletic trainers),
    18  one hundred  sixty-three  (mental  health  practitioners),  one  hundred
    19  sixty-four (respiratory therapists and respiratory therapy technicians),
    20  one  hundred  sixty-five  (clinical laboratory technology practice), one
    21  hundred sixty-six (medical physics practice), or one hundred sixty-seven
    22  (applied behavior analysis) of the education law [or a person  certified
    23  under section twenty-five hundred sixty of this chapter].
    24    (e)  (i) "Patient information" or "information" means: any information
    25  or health record concerning  or  relating  to  the  examination,  health
    26  assessment including, but not limited to, a health assessment for insur-
    27  ance  and  employment purposes [or], consulting in relation to treatment
    28  of providing drugs or devices, or  providing  professional  health  care
    29  services  pertaining  to an identifiable subject maintained or possessed
    30  by a health care [facility or health  care  practitioner  who]  provider
    31  which  has provided or is providing services [for assessment of a health
    32  condition including, but not limited to, a health assessment for  insur-
    33  ance and employment purposes or has treated or is treating such subject,
    34  except  (i)].   It shall include X-rays and other images, and records of
    35  laboratory tests including but not limited  to  tests  and  examinations
    36  administered  in clinical laboratories or blood banks as those terms are
    37  defined in section five hundred seventy-one of this  chapter.  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    (ii)  "Patient  information"  or  "information"  shall not include (A)
    42  information and clinical records subject to the  provisions  of  section
    43  [23.05  or]  33.13  of  the mental hygiene law[, (ii)]; (B) non-clinical
    44  personal notes and observations of a health care practitioner,  provided
    45  that  such personal notes and observations are maintained by the practi-
    46  tioner and not disclosed by the practitioner to any other  person  after
    47  January  first,  nineteen hundred eighty-seven[, (iii)]; (C) information
    48  maintained by a practitioner, concerning or relating to the prior  exam-
    49  ination  or  treatment  of a subject received from another practitioner,
    50  provided however, that such information may be requested by the  subject
    51  directly  from such other practitioner in accordance with the provisions
    52  of this section, and provided further that this clause does not apply to
    53  any referral, order, authorization, or prescription  received  from  the
    54  other  practitioner;  and [(iv)] (D) data disclosed to a practitioner in
    55  confidence by other persons on the basis of an  express  condition  that
    56  such  data  would  never  be  disclosed to the subject or other persons,

        S. 3445                             4
 
     1  provided that such data has never been disclosed to any other person. If
     2  at any time such  personal  notes  and  observations  or  such  data  is
     3  disclosed,  it  shall  be considered patient information for purposes of
     4  this section. For purposes of this subdivision, "disclosure to any other
     5  person" shall not include disclosures made to practitioners as part of a
     6  consultation or referral during the treatment of the subject, to persons
     7  reviewing information or records in the ordinary course of ensuring that
     8  a  provider  is in compliance with applicable quality of care, licensure
     9  or accreditation standards, to an employee or  official  of  a  federal,
    10  state or local agency for the sole purpose of conducting an audit in the
    11  course  of  his  or  her  official duties, to the statewide planning and
    12  research cooperative system, to other persons pursuant to a court order,
    13  to governmental agencies, insurance companies licensed pursuant  to  the
    14  insurance  law  and  other third parties requiring information necessary
    15  for payments to be made to  or  on  behalf  of  patients,  to  qualified
    16  researchers,  to  the  [state  board  for  professional medical conduct]
    17  department of health or the department of education  when  such  [board]
    18  requests  such information in the exercise of its statutory function, to
    19  an insurance carrier insuring, or an attorney  consulted  by,  a  health
    20  care  provider, or to a health maintenance organization certified pursu-
    21  ant to article forty-four of this chapter or licensed  pursuant  to  the
    22  insurance law, or to the committee or a court pursuant to the provisions
    23  of this section.
    24    (iii)  For  purposes  of this subdivision treatment of a subject shall
    25  not include diagnostic services,  except  mammography,  performed  by  a
    26  practitioner   at  the  request  of  another  health  care  practitioner
    27  provided,  however,  that  such  information,  and  mammograms,  may  be
    28  requested by the subject directly from the practitioner at whose request
    29  such   diagnostic  services  were  performed,  in  accordance  with  the
    30  provisions of this section.
    31    (j) "Professional health care services" means the services of a health
    32  care provider examining, assessing, treating or consulting  in  relation
    33  to an identifiable subject of an identifiable subject's condition, with-
    34  in the scope of practice of a health care practitioner.
    35    §  3.  Paragraphs  (d)  and  (e) of subdivision 2 of section 18 of the
    36  public health law, as amended by chapter 576 of the laws  of  1998,  are
    37  amended and a new paragraph (j) is added to read as follows:
    38    (d)  Subject  to  the provisions of subdivision three of this section,
    39  upon the written request of any qualified person, a health care provider
    40  shall furnish to such person, within a reasonable time, a  copy  of  any
    41  patient  information requested, and original mammograms requested, which
    42  the person is authorized to inspect pursuant to this subdivision.  Where
    43  a health care provider maintains the patient information  in  electronic
    44  form,  it  may  provide  the patient information under this section in a
    45  reasonably usable electronic form, and shall provide it in such form  if
    46  requested by the person making the request.
    47    (e)  The  provider  may impose a reasonable charge for all inspections
    48  and copies, not exceeding the reasonable and actual  costs  incurred  by
    49  such  provider,  provided,  however,  that  a  provider may not impose a
    50  charge for copying an original mammogram  when  the  original  has  been
    51  furnished to any qualified person and provided, further, that any charge
    52  for  furnishing an original mammogram pursuant to this section shall not
    53  exceed the documented costs associated therewith[. However, the  reason-
    54  able charge], which for paper copies shall not exceed seventy-five cents
    55  per  page.  A  qualified  person  shall  not be denied access to patient
    56  information solely because of inability  to  pay.    No  charge  may  be

        S. 3445                             5
 
     1  imposed  under  this  section  for  providing,  releasing  or delivering
     2  patient information or copies of patient information where requested for
     3  the purpose of supporting a claim or appeal for any  government  benefit
     4  or program.
     5    (j)  Where  a  health  care provider provides health care professional
     6  services as an employee of or under contract with  another  health  care
     7  provider,  compliance  with  this section shall be the responsibility of
     8  the health care provider that employs or contracts for the  services  of
     9  the  other  health  care provider, unless the terms of the employment or
    10  contract  explicitly  provide  otherwise.  If  a  health  care  provider
    11  receives a request under this section and compliance is the responsibil-
    12  ity  of  a  different  health  care provider under this subdivision, the
    13  health care provider receiving the request shall immediately inform  the
    14  requesting  party  to  which  health care provider the request should be
    15  directed.
    16    § 4. Paragraphs 1, 3 and 4 of subdivision (a) of section 33.16 of  the
    17  mental  hygiene law, paragraphs 1 and 4 as amended by chapter 226 of the
    18  laws of 1991, and paragraph 3 as amended by chapter 37 of  the  laws  of
    19  2011, are amended to read as follows:
    20    1. "Clinical  record"  means any information concerning or relating to
    21  the examination or treatment of, consulting in relation to treatment of,
    22  providing drugs or devices, or providing professional mental  or  behav-
    23  ioral  health  care  services  pertaining  to an identifiable patient or
    24  client maintained or possessed by a facility which  has  treated  or  is
    25  treating such patient or client, except data disclosed to a practitioner
    26  in confidence by other persons on the basis of an express condition that
    27  such  data  would  never  be disclosed to the patient or client or other
    28  persons, provided that such data has never been disclosed by the practi-
    29  tioner or a facility to any other person. If at any time  such  data  is
    30  disclosed,  it  shall be considered clinical records for the purposes of
    31  this section.   For purposes of this  subdivision,  "disclosure  to  any
    32  other  person"  shall  not  include disclosures made pursuant to section
    33  33.13 of this article, to practitioners as part  of  a  consultation  or
    34  referral during the treatment of the patient or client, to the statewide
    35  planning and research cooperative system, or to the committee or a court
    36  pursuant  to  the  provisions of this section or to an insurance carrier
    37  insuring, or an attorney consulted by,  a  facility.    Clinical  record
    38  shall  include  X-rays and other images, and records of laboratory tests
    39  including but not limited to  tests  and  examinations  administered  in
    40  clinical  laboratories  or  blood  banks  as  those terms are defined in
    41  section five hundred seventy-one of the  public  health  law.  It  shall
    42  include  records  of charges to, and payments received from, the patient
    43  or identifiable subject or any other party on behalf of the  patient  or
    44  identifiable subject, for any such services, drugs or devices.
    45    3. "Facility"  means  a  facility  as  defined in section 1.03 of this
    46  chapter, a program requiring approval for operation pursuant to  article
    47  thirty-two  of this chapter, institutions offering training in psychoth-
    48  erapy, psychoanalysis and related areas chartered  pursuant  to  section
    49  two  hundred  sixteen  of the education law, or, notwithstanding section
    50  1.03 of this chapter, any provider of services for persons  with  mental
    51  illness  or  developmental  disabilities  which  is  operated  by, under
    52  contract with, receives funding from, or is otherwise approved to render
    53  services by, a  director  of  community  services  pursuant  to  article
    54  forty-one  of  this chapter or one or both of the offices, including any
    55  such provider which is exempt from  the  requirement  for  an  operating
    56  certificate under article sixteen or article thirty-one of this chapter;

        S. 3445                             6
 
     1  or  an  entity  that  provides  mental or behavioral health professional
     2  services by employing or contracting for the professional services of  a
     3  mental health practitioner.
     4    4. "Mental  health  practitioner"  or  "practitioner"  means  a person
     5  employed by or rendering a service at a facility maintaining  the  clin-
     6  ical  record who is licensed under article one hundred thirty-one of the
     7  education law (medicine) who practices psychiatry or a  person  licensed
     8  under article one hundred thirty-nine (nursing), one hundred fifty-three
     9  [or]  (psychology),  one  hundred  fifty-four (social work), one hundred
    10  sixty-three (mental health practitioners), or  one  hundred  sixty-seven
    11  (applied behavior analysis) of the education law or any other person not
    12  prohibited by law from providing mental health or developmental disabil-
    13  ities services.
    14    §  5.  Paragraphs  5  and 6 of subdivision (b) of section 33.16 of the
    15  mental hygiene law, paragraph 5 as amended and paragraph 6 as renumbered
    16  by chapter 233 of the laws of 1991, and paragraph 6 as amended by  chap-
    17  ter 165 of the laws of 1991, are amended to read as follows:
    18    5.  Subject  to the provisions of this subdivision and subdivision (c)
    19  of this section, upon the written request of  any  qualified  person,  a
    20  facility  shall furnish to such person, within a reasonable time, a copy
    21  of any clinical record requested  which  the  person  is  authorized  to
    22  inspect  pursuant  to  this  subdivision.   Where a facility maintains a
    23  clinical record in electronic form, it may provide the record under this
    24  section in a reasonably usable electronic form, and shall provide it  in
    25  such form if requested by the qualified person making the request.
    26    6. The facility may impose a reasonable charge for all inspections and
    27  copies,  not  exceeding  the  documented  actual  costs incurred by such
    28  provider[. However, the reasonable charge] which for paper copies  shall
    29  not  exceed seventy-five cents per page. A qualified person shall not be
    30  denied access to the clinical record solely because of inability to pay.
    31  No charge may be imposed under this section for providing, releasing  or
    32  delivering   clinical  records  or  copies  of  clinical  records  where
    33  requested for the purpose of  supporting  a  claim  or  appeal  for  any
    34  government benefit or program.
    35    §  6.  Section  33.16 of the mental hygiene law is amended by adding a
    36  new subdivision (l) to read as follows:
    37    (l) This section shall not be construed  to  supplant  or  diminish  a
    38  right  or benefit that any patient, qualified person or person acting on
    39  behalf of a patient under sections seventeen or eighteen of  the  public
    40  health law has under either such sections of the public health law.
    41    §  7. This act shall take effect on the first of January next succeed-
    42  ing the date on which it shall have become a law.
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