STATE OF NEW YORK ________________________________________________________________________ 4581 2023-2024 Regular Sessions IN ASSEMBLY February 17, 2023 ___________ Introduced by M. of A. PAULIN, McDONOUGH, COLTON, SAYEGH, DeSTEFANO, DARLING, SIMON -- read once and referred 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 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 24 of this section may impose a reasonable charge to be paid by the person 25 requesting the release and deliverance of such records as reimbursement EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04131-01-3
A. 4581 2 1 [for such] not to exceed the health care provider's actual expenses, 2 provided, however, that the [physician or hospital] health care provider 3 may not impose a charge for copying an original mammogram when the 4 original has been released or delivered to any competent patient, parent 5 or guardian of an infant, a guardian appointed pursuant to article 6 eighty-one of the mental hygiene law, or a conservator of a conservatee 7 and provided, further, that any charge for delivering an original mammo- 8 gram pursuant to this section shall not exceed the documented actual 9 costs associated therewith[. However, the reasonable charge], which for 10 paper copies shall not exceed seventy-five cents per page. A release of 11 records under this section shall not be denied solely because of inabil- 12 ity to pay. No charge may be imposed under this section for providing, 13 releasing, or delivering medical records or copies of medical records 14 where requested for the purpose of supporting an application, claim or 15 appeal for any government benefit or program, provided that, where a 16 provider maintains medical records in electronic form, it shall provide 17 the copy in either electronic or paper form, as required by the govern- 18 ment benefit or program, or at the patient's request. 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 (k) 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
A. 4581 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, dental hygiene, and registered dental assisting), 8 one hundred thirty-four (licensed perfusionists), one hundred thirty-six 9 (physical therapy and physical therapy assistants), one hundred thirty- 10 seven (pharmacy), one hundred thirty-nine (nursing), one hundred forty 11 (professional midwifery practice), one hundred forty-one (podiatry), one 12 hundred forty-three (optometry), one hundred forty-four (ophthalmic 13 dispensing), one hundred fifty-three (psychology), one hundred fifty- 14 four (social work), one hundred fifty-five (massage therapy), one 15 hundred fifty-six [or] (occupational therapy), one hundred fifty-seven 16 (dietetics and nutrition), one hundred fifty-nine (speech-language 17 pathologists and audiologists), one hundred sixty (acupuncture), one 18 hundred sixty-two (athletic trainers), one hundred sixty-three (mental 19 health practitioners), one hundred sixty-four (respiratory therapists 20 and respiratory therapy technicians), one hundred sixty-five (clinical 21 laboratory technology practice), one hundred sixty-six (medical physics 22 practice), or one hundred sixty-seven (applied behavior analysis) of the 23 education law [or a person certified under section twenty-five hundred 24 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. 4581 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 (k) "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. 4581 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. 4581 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 [licensed under article one hundred thirty-one of the educa- 4 tion law who practices psychiatry or a person licensed under article one 5 hundred thirty-nine, one hundred fifty-three or one hundred fifty-four 6 of the education law] who is a practitioner as defined in section eigh- 7 teen of the public health law or any other person not prohibited by law 8 from providing mental health or developmental disabilities services. 9 § 5. Paragraph 6 of subdivision (b) of section 33.16 of the mental 10 hygiene law, as amended by chapter 322 of the laws of 2017, is amended 11 to read as follows: 12 6. The facility may impose a reasonable charge for all inspections and 13 copies, not exceeding the documented actual costs incurred by such 14 provider[. However, the reasonable charge] which for paper copies shall 15 not exceed seventy-five cents per page. A qualified person shall not be 16 denied access to the clinical record solely because of inability to pay. 17 No charge may be imposed under this section for providing, releasing, or 18 delivering clinical records or copies of clinical records where 19 requested for the purpose of supporting an application, claim or appeal 20 for any government benefit or program, provided that, where a provider 21 maintains clinical records in electronic form, it shall provide the copy 22 in either electronic or paper form, as required by the government bene- 23 fit or program, or at the patient's request. 24 § 6. Section 33.16 of the mental hygiene law is amended by adding a 25 new subdivision (l) to read as follows: 26 (l) This section shall not be construed to supplant or diminish a 27 right or benefit that any patient, qualified person or person acting on 28 behalf of a patient under sections seventeen or eighteen of the public 29 health law has under either such sections of the public health law. 30 § 7. This act shall take effect on the first of January next succeed- 31 ing the date on which it shall have become a law.