Bill Text: NY A00839 | 2021-2022 | General Assembly | Amended
Bill Title: 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.
Spectrum: Moderate Partisan Bill (Democrat 8-2)
Status: (Engrossed - Dead) 2022-03-24 - REFERRED TO HEALTH [A00839 Detail]
Download: New_York-2021-A00839-Amended.html
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 [and13test 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. LBD00039-03-1A. 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 [and3test 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" shall36include] 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 inA. 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 hundred28sixty 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 health37condition including, but not limited to, a health assessment for insur-38ance and employment purposes or has treated or is treating such subject,39except (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 provisionsA. 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-50able 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 patientA. 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 professionalA. 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-6tion law who practices psychiatry or a person licensed under article one7hundred thirty-nine, one hundred fifty-three or one hundred fifty-four8of 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.