STATE OF NEW YORK ________________________________________________________________________ 4132 2023-2024 Regular Sessions IN ASSEMBLY February 9, 2023 ___________ Introduced by M. of A. PAULIN -- read once and referred to the Committee on Health AN ACT to amend the public health law, in relation to protecting the confidentiality of vaccine information; and to repeal provisions of the public health law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 11-a of section 2168 of the public health law, 2 as added by a chapter of the laws of 2022, amending the public health 3 law relating to protecting the confidentiality of vaccine information, 4 as proposed in legislative bills numbers S. 6541-A and A. 7326-A, is 5 amended to read as follows: 6 11-a. The commissioner, or in the city of New York, the commissioner 7 of the department of health and mental hygiene, may only share registry 8 information maintained by the department, or in the case of the citywide 9 immunization registry, the city of New York under the provisions of this 10 section with the federal Centers for Disease Control and Prevention, or 11 successor agency, for public health purposes in summary, statistical, 12 aggregate, or other form such that no individual person can be identi- 13 fied, except that either such commissioner may disclose identifiable 14 registrant information to the federal Centers for Disease Control and 15 Prevention, or its successor agency, when the commissioner has deter- 16 mined that the disclosure is in the best interests of the registrant or 17 will contribute to the protection of public health[,] and that the 18 objective of the disclosure cannot be served by disclosure limited to 19 de-identified information, [and] or the federal health officials have 20 committed in writing not to redisclose to or share registrant informa- 21 tion with any other federal agency, including but not limited to the 22 department of homeland security, immigration and customs enforcement, 23 customs and border protection, or any successor agency, or any law 24 enforcement agency; provided that either such commissioner may forgo the EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04035-01-3
A. 4132 2 1 written commitment if requiring written commitment would result in the 2 actual withholding of federal funds. 3 § 2. Paragraph (d) of subdivision 4 of section 2168 of the public 4 health law, as amended by a chapter of the laws of 2022, amending the 5 public health law relating to protecting the confidentiality of vaccine 6 information, as proposed in legislative bills numbers S. 6541-A and A. 7 7326-A, is amended to read as follows: 8 (d) [(i) Identifiable registrant information is not (1) subject to 9 discovery, subpoena, warrant, or other means of legal compulsion for 10 release to any person or (2) admissible in any civil, administrative, 11 criminal, or family court proceeding, except for the purposes of inves- 12 tigations and prosecutions of allegations of computer tampering or bill- 13 ing fraud related to vaccination records, fraudulent statements related 14 to an individual's vaccination status, an act of violence or attempted 15 violence occurring at the site of a vaccination provider's or vaccine 16 navigator's business, or medical malpractice. Disclosure for these 17 purposes shall be subject to in camera review and approval by the court 18 and, if the use is initiated by a party other than the individual whose 19 registry information is sought, the information must be highly material 20 and relevant for the purpose. 21 (ii) Nothing in this section shall be construed to limit commissioners 22 of local social services districts or the commissioner of the office of 23 children and family services from accessing identifiable registrant 24 information under paragraph (d) of subdivision eight of this section.] A 25 person, institution or agency to whom such immunization information is 26 furnished or to whom, access to records or information has been given, 27 shall not divulge any part thereof so as to disclose the identity of 28 such person to whom such information or record relates, except insofar 29 as such disclosure is necessary for the best interests of the person or 30 other persons, consistent with the purposes of this section. 31 § 3. Paragraphs (f), (g) and (i) of subdivision 1, subparagraph (iii) 32 of paragraph (c), subparagraphs (ii) and (iv) of paragraph (d) and para- 33 graph (e) of subdivision 2 and subdivision 3 of section 2169 of the 34 public health law, as added by a chapter of the laws of 2022, amending 35 the public health law relating to protecting the confidentiality of 36 vaccine information, as proposed in legislative bills numbers S. 6541-A 37 and A. 7326-A, are amended to read as follows: 38 (f) The term "personal information" shall mean information obtained 39 from or about an individual, in connection with their registering for 40 [or receiving] a vaccination, that directly or indirectly identifies, 41 relates to, describes, is capable of being associated with, or could 42 reasonably be linked to a particular individual, household, or personal 43 device. Information is reasonably linkable to an individual, household, 44 or personal device if it can be used on its own or in combination with 45 other reasonably available information, [regardless of whether such 46 other information is held by the vaccine navigator or vaccine provider] 47 when such information is held by the vaccine navigator, to identify an 48 individual, household, or a personal device. 49 (g) The term "service attendant to the delivery of immunization" shall 50 mean [scheduling and billing for] facilitating an immunization appoint- 51 ment, sending reminders about immunization, arranging transportation to 52 or from a vaccine provider, or reporting to the department, the New York 53 City department of health and mental hygiene, or other local health 54 agency on whose behalf such vaccine navigator is performing such 55 services.
A. 4132 3 1 (i) The term "vaccine navigator" shall mean any person that collects 2 personal information from an individual in order to register that indi- 3 vidual for immunization or to help that individual register for immuni- 4 zation, provided the department, a local public health agency, or a 5 person that administers vaccines or their designees are not vaccine 6 navigators [if they only store vaccine recipient personal information in 7 medical records protected under the federal Health Insurance Portability 8 and Accountability Act of 1996, its implementing regulations, or section 9 eighteen of this chapter]. 10 (iii) Without consent under this subdivision, personal information and 11 any evidence derived therefrom shall not be subject to or provided in 12 response to any legal process or be admissible for any purpose in any 13 judicial or administrative action or proceeding unless provided in 14 response pursuant to warrants, court-ordered subpoenas, administrative 15 subpoenas, or grand jury subpoenas. 16 (ii) A [person] vaccine navigator may only possess or use de-identi- 17 fied information pertaining to services attendant to the delivery of 18 immunization if the [person] vaccine navigator maintains technical safe- 19 guards and policies and procedures that prevent re-identification, 20 whether intentional or unintentional, of any individual, as may be 21 required by the commissioner (or the New York city commissioner of 22 health and mental hygiene, in the case of information collected by or 23 under authority of the New York city department of health and mental 24 hygiene. The commissioner (or the New York city commissioner as the case 25 may be) shall require safeguards, policies and procedures under this 26 paragraph as the commissioner deems practicable. 27 [(iv) This section does not prevent disclosure of personal information 28 sought for the purposes of investigations and prosecutions of allega- 29 tions of computer tampering or billing fraud related to vaccination 30 records, fraudulent statements related to an individual's vaccination 31 status, an act of violence or attempted violence occurring at the site 32 of a vaccination provider's or vaccine navigator's business, or medical 33 malpractice, professional discipline, or defense of any claim brought 34 against a vaccine navigator or provider. Disclosure for these purposes 35 shall be subject to in camera review and approval by the court and, if 36 the use is initiated by a party other than the individual whose registry 37 information is sought, the information must be highly material and rele- 38 vant for the purpose.] 39 (e) A vaccine navigator that maintains personal information shall 40 establish appropriate administrative, technical, and physical safe- 41 guards, policies, and procedures that ensure the security of that 42 personal information. The safeguards, policies, and procedures must be 43 appropriate to the volume and nature of the personal information main- 44 tained and the size, revenue, and sophistication of the vaccine naviga- 45 tor and must ensure that personal information is encrypted and protected 46 at least as much as or more than other confidential information in the 47 vaccine navigator's possession. The commissioner or, in the city of New 48 York, the commissioner of the department of health and mental hygiene 49 [shall] may make regulations as reasonably necessary to require that 50 personal information possessed, used, or under the control of a vaccine 51 navigator shall be subject to technical safeguards, policies, and proce- 52 dures for storage, transmission, use, and protection of the information. 53 The regulations must take into account the different sizes, revenues and 54 sophistications of different vaccine navigators, as well as the volume 55 and nature of the personal information they maintain.
A. 4132 4 1 3. Vaccine providers. A vaccine provider shall not delay or condition 2 the provision of any service attendant to the delivery of immunization 3 by inviting or requiring an individual seeking vaccination to complete 4 an application for a customer discount card or account or share personal 5 information that will be stored outside of a [medical] record protected 6 under the federal Health Insurance Portability and Accountability Act of 7 1996, its implementing regulations, or section eighteen of this chapter 8 for purposes other than services attendant to the delivery of immuniza- 9 tion, or by engaging in any other activity unrelated to the provision of 10 such a service that the commissioner designates by regulation. 11 § 4. Subdivisions 13, 14, 15, 16, 17, 18 and 20 of section 2180 of the 12 public health law, as added by a chapter of the laws of 2022, amending 13 the public health law relating to protecting the confidentiality of 14 vaccine information, as proposed in legislative bills numbers S. 6541-A 15 and A. 7326-A, are REPEALED and subdivision 19 is renumbered subdivision 16 13. 17 § 5. Section 2183 of the public health law, as added by a chapter of 18 the laws of 2022, amending the public health law relating to protecting 19 the confidentiality of vaccine information, as proposed in legislative 20 bills numbers S. 6541-A and A. 7326-A, is amended to read as follows: 21 § 2183. Immunity passports. 1. Any covered entity that requires proof 22 of COVID-19 immunization shall permit the use of physical immunity pass- 23 ports. No covered entity may require digital, electronic, or smart- 24 phone-based proof of immunity. Notwithstanding this section, anyone 25 requiring an immunization passport shall accept a valid COVID-19 Vacci- 26 nation Record Card allocated to COVID-19 vaccine providers by the 27 Centers for Disease Control and Prevention for that purpose. The 28 provisions of this section shall apply to valid COVID-19 Vaccination 29 Record Cards allocated to COVID-19 vaccine providers by the Centers for 30 Disease Control and Prevention. 31 2. [Any covered entity that requires the use of an immunity passport 32 shall delete any personal information derived from the immunity passport 33 about the individual to whom the immunity passport pertains within twen- 34 ty-four hours of receiving it, except that where a covered entity has an 35 ongoing relationship with an individual, the covered entity may store 36 the fact that the individual has received a COVID-19 vaccine, as well as 37 a copy of the individual's immunity passport, provided that: 38 (a) the covered entity first obtains the individual's informed, affir- 39 mative, and voluntary consent to store such information, and 40 (b) the covered entity stores any copy of an individual's immunity 41 passport and any personal information derived from the immunity passport 42 as if they were subject to the confidentiality requirements of title I 43 of the Americans with Disabilities Act 42 U.S.C. 12112(d) and its imple- 44 menting regulations, 29 CFR 1630.14. 45 3. An immunity passport provider shall not use or disclose personal 46 information derived from an immunity passport beyond what is adequate, 47 relevant, and necessary to identify an individual as having received a 48 COVID-19 vaccine or a COVID-19 test result and shall not collect, 49 access, receive, capture, store, maintain, use, or disclose personal 50 information pertaining to where or when an individual uses an immunity 51 passport. 52 4. (a) Except as provided in this subdivision, no covered entity or 53 immunity passport provider may: 54 (i) provide personal information derived from an immunity passport or 55 otherwise make such personal information accessible, directly or indi- 56 rectly, to a law enforcement agent or entity or immigration authority;
A. 4132 5 1 (ii) provide such personal information or otherwise make such personal 2 information accessible, directly or indirectly, to any other individual 3 or entity except as explicitly authorized by this section. 4 (b) Except as provided in this subdivision, personal information 5 derived from an immunity passport, and any evidence derived therefrom, 6 shall not be subject to or provided in response to any legal process or 7 be admissible for any purpose in any judicial or administrative action 8 or proceeding. 9 (c) Personal information derived from an immunity passport, and any 10 evidence derived therefrom, may be disclosed for the purposes of inves- 11 tigations and prosecutions of allegations of computer tampering or frau- 12 dulent statements related to an individual's vaccination status. 13 Disclosure for these purposes shall be subject to in camera review and 14 approval by the court and, if the use is initiated by a party other than 15 the individual whose personal information is sought, the information 16 must be highly material and relevant for the purpose. 17 5. The commissioner shall make regulations as reasonably necessary to 18 ensure that individuals who are medically contraindicated from receiving 19 the COVID-19 vaccine are nonetheless able to obtain reasonable accommo- 20 dations to enable them to access the services of a covered entity, in a 21 manner that does not impose an undue hardship on the covered entity or 22 present a direct threat that cannot be addressed by a reasonable accom- 23 modation. 24 6.] Nothing in this section requires a covered entity to require proof 25 of COVID-19 immunity or to independently verify the information 26 contained in an immunity passport. 27 [7.] 3. Nothing in this section shall be construed to limit a covered 28 entity's obligations under the Americans with Disabilities Act, article 29 fifteen of the executive law, the civil rights law, or any other feder- 30 al, state, or local anti-discrimination law. 31 [8.] 4. Nothing in this section shall be construed to affect the prac- 32 tices of a health care provider, as defined in section eighteen of this 33 chapter, a hospital or nursing home as defined in article twenty-eight 34 of this chapter, a health practitioner as defined in section twenty-one 35 hundred sixty-four of this chapter, a facility, as defined in section 36 33.13 of the mental hygiene law, or a correctional health service 37 governed by the department of corrections and community supervision, the 38 rules of the board of correction in the city of New York, or a county 39 board of correction, with respect to records concerning their patients' 40 vaccinations. 41 § 6. This act shall take effect on the same date and in the same 42 manner as a chapter of the laws of 2022, amending the public health law 43 relating to protecting the confidentiality of vaccine information, as 44 proposed in legislative bills numbers S. 6541-A and A. 7326-A, takes 45 effect.