§ 18 — Access to patient information

* § 18. Access to patient information. 1. Definitions. For the purpose\nof this section:\n (a) "Committee" means a medical access review committee appointed\npursuant to subdivision four of this section.\n (b) "Health care provider" or "provider" means a "health care\nfacility" or a "health care practitioner" as defined by this\nsubdivision.\n (c) "Health care facility" or "facility" means a hospital as defined\nin article twenty-eight of this chapter, a home care services agency as\ndefined in article thirty-six of this chapter, a hospice as defined in\narticle forty of this chapter, a health maintenance organization as\ndefined in article forty-four of this chapter, and a shared health\nfacility as defined in article forty-seven of this chapter.\n (d) "Health care practitioner" or "practitioner" means a person\nlicensed under article one hundred thirty-one, one hundred thirty-one-B,\none hundred thirty-two, one hundred thirty-three, one hundred\nthirty-six, one hundred thirty-nine, one hundred forty-one, one hundred\nforty-three, one hundred forty-four, one hundred fifty-three, one\nhundred fifty-four, one hundred fifty-six or one hundred fifty-nine of\nthe education law or a person certified under section twenty-five\nhundred sixty of this chapter.\n (e) "Patient information" or "information" means any information\nconcerning or relating to the examination, health assessment including,\nbut not limited to, a health assessment for insurance and employment\npurposes or treatment of an identifiable subject maintained or possessed\nby a health care facility or health care practitioner who has provided\nor is providing services for assessment of a health condition including,\nbut not limited to, a health assessment for insurance and employment\npurposes or has treated or is treating such subject, except (i)\ninformation and clinical records subject to the provisions of section\n23.05 or 33.13 of the mental hygiene law, (ii) personal notes and\nobservations of a health care practitioner, provided that such personal\nnotes and observations are maintained by the practitioner and not\ndisclosed by the practitioner to any other person after January first,\nnineteen hundred eighty-seven, (iii) information maintained by a\npractitioner, concerning or relating to the prior examination or\ntreatment of a subject received from another practitioner, provided\nhowever, that such information may be requested by the subject directly\nfrom such other practitioner in accordance with the provisions of this\nsection, and (iv) data disclosed to a practitioner in confidence by\nother persons on the basis of an express condition that such data would\nnever be disclosed to the subject or other persons, provided that such\ndata has never been disclosed to any other person. If at any time such\npersonal notes and observations or such data is disclosed, it shall be\nconsidered patient information for purposes of this section. For\npurposes of this subdivision, "disclosure to any other person" shall not\ninclude disclosures made to practitioners as part of a consultation or\nreferral during the treatment of the subject, to persons reviewing\ninformation or records in the ordinary course of ensuring that a\nprovider is in compliance with applicable quality of care, licensure or\naccreditation standards, to an employee or official of a federal, state\nor local agency for the sole purpose of conducting an audit in the\ncourse of his or her official duties, to the statewide planning and\nresearch cooperative system, to other persons pursuant to a court order,\nto governmental agencies, insurance companies licensed pursuant to the\ninsurance law and other third parties requiring information necessary\nfor payments to be made to or on behalf of patients, to qualified\nresearchers, to the state board for professional medical conduct when\nsuch board requests such information in the exercise of its statutory\nfunction, to an insurance carrier insuring, or an attorney consulted by,\na health care provider, or to a health maintenance organization\ncertified pursuant to article forty-four of this chapter or licensed\npursuant to the insurance law, or to the committee or a court pursuant\nto the provisions of this section.\n For purposes of this subdivision treatment of a subject shall not\ninclude diagnostic services, except mammography, performed by a\npractitioner at the request of another health care practitioner\nprovided, however, that such information, and mammograms, may be\nrequested by the subject directly from the practitioner at whose request\nsuch diagnostic services were performed, in accordance with the\nprovisions of this section.\n (f) "Personal notes and observations" means a practitioner's\nspeculations, impressions (other than tentative or actual diagnosis) and\nreminders, provided such data is maintained by a practitioner.\n (g) "Qualified person" means any properly identified subject; or a\nguardian appointed under article eighty-one of the mental hygiene law;\nor a parent of an infant; or a guardian of an infant appointed under\narticle seventeen of the surrogate's court procedure act or other\nlegally appointed guardian of an infant who may be entitled to request\naccess to a clinical record under paragraph (c) of subdivision two of\nthis section; or a distributee of any deceased subject for whom no\npersonal representative, as defined in the estates, powers and trusts\nlaw, has been appointed; or an attorney representing a qualified person\nor the subject's estate who holds a power of attorney from the qualified\nperson or the subject's estate explicitly authorizing the holder to\nexecute a written request for patient information under this section. A\nqualified person shall be deemed a "personal representative of the\nindividual" for purposes of the federal health insurance portability and\naccountability act of 1996 and its implementing regulations.\n (h) "Subject" means an individual concerning whom patient information\nis maintained or possessed by a health care provider.\n (i) "Treating practitioner" means the health care practitioner who has\nprimary responsibility for the care of the subject within the health\ncare facility or if such practitioner is unavailable, a practitioner\ndesignated by such facility.\n (j) "Cease to do business in this state" shall mean any case where a\nhealth care provider who has engaged in an on-going practice or business\nwithin this state as a health care provider, ceases to engage in such\nbusiness, provided however, that this term shall not include a health\ncare practitioner whose practice is merged, consolidated, combined, or\nacquired by another health care provider and he or she continues to\nprovide services including medical care, diagnosis or treatment to\npatients as an employee, contractor, or owner of the merged,\nconsolidated, combined, or acquired health care provider.\n 2. Access by qualified persons. (a) Subject to the provisions of\nsubdivision three of this section, upon the written request of any\nsubject, a health care provider shall provide an opportunity, within ten\ndays, for such subject to inspect any patient information concerning or\nrelating to the examination or treatment of such subject in the\npossession of such health care provider.\n (b) Subject to the provisions of subdivision three of this section,\nupon the written request of the committee for an incompetent appointed\npursuant to article seventy-eight of the mental hygiene law, a health\ncare provider shall provide an opportunity, within ten days, for the\ninspection by such committee of any patient information concerning the\nincompetent subject in the possession of such health care provider.\n (c) Subject to the provisions of subdivision three of this section and\nexcept as otherwise provided by law, upon the written request of a\nparent or guardian of an infant appointed pursuant to article seventeen\nof the surrogate's court procedure act, or any other legally appointed\nguardian, a health care provider shall provide an opportunity, within\nten days, for such parent or guardian to inspect any patient information\nmaintained or possessed by such provider concerning care and treatment\nof the infant for which the consent of such parent or guardian was\nobtained or where care was provided without consent in an emergency\nwhich was the result of accidental injury or the unexpected onset of\nserious illness; provided, however, that such parent or guardian shall\nnot be entitled to inspect or make copies of any patient information\nconcerning the care and treatment of an infant where the health care\nprovider determines that access to the information requested by such\nparent or guardian would have a detrimental effect on the provider's\nprofessional relationship with the infant, or on the care and treatment\nof the infant, or on the infant's relationship with his or her parents\nor guardian.\n (d) Subject to the provisions of subdivision three of this section,\nupon the written request of any qualified person, a health care provider\nshall furnish to such person, within a reasonable time, a copy of any\npatient information requested, and original mammograms requested, which\nthe person is authorized to inspect pursuant to this subdivision. A\nqualified person may request a physical copy of any patient information\nrequested pursuant to this section.\n (e) The provider may impose a reasonable charge for all inspections\nand copies, not exceeding the costs incurred by such provider, provided,\nhowever, that a provider may not impose a charge for copying an original\nmammogram when the original has been furnished to any qualified person\nand provided, further, that any charge for furnishing an original\nmammogram pursuant to this section shall not exceed the documented costs\nassociated therewith. However, the reasonable charge for paper copies\nshall not exceed seventy-five cents per page. A qualified person shall\nnot be denied access to patient information solely because of inability\nto pay. No charge may be imposed under this section for providing,\nreleasing, or delivering patient information or copies of patient\ninformation where requested for the purpose of supporting an\napplication, claim or appeal for any government benefit or program,\nprovided that, where a provider maintains patient information in\nelectronic form, it shall provide the copy in either electronic or paper\nform, as required by the government benefit or program, or at the\npatient's request.\n (f) A provider may place reasonable limitations on the time, place,\nand frequency of any inspections of patient information.\n (g) In the event that a practitioner does not have space available to\npermit the inspection of patient information, the practitioner may, in\nthe alternative, furnish a qualified person a copy of such information\nwithin ten days.\n (h) A provider may request the opportunity to review the patient\ninformation with the qualified person requesting such information, but\nsuch review shall not be a prerequisite for furnishing the information.\n (i) A provider may make available for inspection either the original\nor a copy of patient information.\n 3. Limitations on access. (a) Upon receipt of a written request by a\nqualified person to inspect or copy patient information, a practitioner\nmay review the information requested. Unless the practitioner determines\npursuant to paragraph (d) of this subdivision that (i) the requested\nreview of the information can reasonably be expected to cause\nsubstantial and identifiable harm to the subject or others which would\noutweigh the qualified person's right to access to the information, or\n(ii) the material requested is personal notes and observations, or the\ninformation requested would have a detrimental effect as defined in\nsubdivision two of this section, review of such patient information\nshall be permitted or copies provided.\n (b) Upon receipt of a written request by a qualified person to inspect\npatient information maintained by a facility, the facility shall inform\nthe treating practitioner of the request. The treating practitioner may\nreview the information requested. Unless the treating practitioner\ndetermines, pursuant to paragraph (d) of this subdivision that the\nrequested review of the information can reasonably be expected to cause\nsubstantial and identifiable harm to the subject or others which would\noutweigh the qualified person's right of access to the information or\nwould have a detrimental effect as defined in subdivision two of this\nsection, review of such patient information shall be permitted or copies\nprovided.\n (c) A subject over the age of twelve years may be notified of any\nrequest by a qualified person to review his/her patient information,\nand, if the subject objects to disclosure, the provider may deny the\nrequest. In the case of a facility, the treating practitioner shall be\nconsulted.\n (d) The provider may deny access to all or a part of the information\nand may grant access to a prepared summary of the information if, after\nconsideration of all the attendant facts and circumstances, the provider\ndetermines that (i) the request to review all or a part of the patient\ninformation can reasonably be expected to cause substantial and\nidentifiable harm to the subject or others which would outweigh the\nqualified person's right of access to the information, or would have a\ndetrimental effect as defined in subdivision two of this section, or\n(ii) the material requested is personal notes and observations. In\nconducting such review, the provider may consider, among other things,\nthe following factors: (i) the need for, and the fact of, continuing\ncare and treatment; (ii) the extent to which the knowledge of the\ninformation may be harmful to the health or safety of the subject or\nothers; (iii) the extent to which the information contains sensitive\nmaterial disclosed in confidence to the practitioner or treating\npractitioner by family members, friends and other persons; (iv) the\nextent to which the information contains sensitive materials disclosed\nto the practitioner or the treating practitioner by the subject which\nwould be injurious to the subject's relationships with other persons,\nexcept when the subject is requesting information concerning himself or\nherself; and (v) in the case of a minor making a request for access\npursuant to subdivision two of this section, the age of the subject.\n (e) In the event of a denial of access, the qualified person shall be\ninformed by the provider of such denial, and whether the denial is based\non the reasonable expectation that release of the information can\nreasonably be expected to cause substantial and identifiable harm to the\nsubject or others which outweighs the qualified person's right of access\nto the information or on the reasonable expectation that release of the\ninformation would have a detrimental effect as defined in subdivision\ntwo of this section, or on the basis that the materials sought to be\nreviewed constitute personal notes and observations, and of the\nqualified person's right to obtain, without cost, a review of the denial\nby the appropriate medical record access review committee. If the\nqualified person requests such review, the provider shall, within ten\ndays of receipt of such request, transmit the information including\npersonal notes and observations as defined herein, to the chairman of\nthe appropriate committee with a statement setting forth the specific\nreasons for which access was denied. After an in camera review of the\nmaterials provided and after providing all parties a reasonable\nopportunity to be heard, the committee shall promptly make a written\ndetermination whether the requested review of the information can\nreasonably be expected to cause substantial and identifiable harm to the\nsubject or others which outweighs the qualified person's right of access\nto the information pursuant to paragraph (d) of this subdivision or\nwhether the requested review would have a detrimental effect as defined\nin subdivision two of this section, or whether all or part of the\nmaterials sought to be reviewed constitute personal notes and\nobservations, and shall accordingly determine whether access to all or\npart of such materials shall be granted. In the event that the committee\ndetermines that the request for access shall be granted in whole or in\npart, the committee shall notify all parties and the provider shall\ngrant access pursuant to such determination.\n (f) In the event that access is denied in whole or in part because the\nrequested review of information can reasonably be expected to cause\nsubstantial and identifiable harm to the subject or others which would\noutweigh the qualified person's right of access to the information, or\nwould have a detrimental effect as defined in subdivision two of this\nsection, the committee shall notify the qualified person of his or her\nright to seek judicial review of the provider's determination pursuant\nto this section: provided however, that a determination by the committee\nas to whether materials sought to be reviewed constitute personal notes\nand observations shall not be the subject of judicial review. Within\nthirty days of receiving notification of such decision, the qualified\nperson may commence, upon notice, a special proceeding in supreme court\nfor a judgment requiring the provider to make available the information\nfor inspection or copying. The court upon such application and after an\nin camera review of the materials provided including the determination\nand record of the committee, and after providing all parties an\nopportunity to be heard, shall determine whether there exists a\nreasonable basis for the denial of access. The relief available pursuant\nto this section shall be limited to a judgement requiring the provider\nto make available to the qualified person the requested information for\ninspection or copying.\n (g) Where the written request for patient information under this\nsection is signed by a distributee of a deceased subject for whom a\npersonal representative has not been appointed, or from the holder of a\npower of attorney from such a distributee, a copy of a certified copy of\nthe certificate of death of the subject shall be attached to the written\nrequest.\n (h) Where the written request for patient information under this\nsection is signed by the holder of a power of attorney, a copy of the\npower of attorney shall be attached to the written request. A written\nrequest under this subdivision shall be subject to the duration and\nterms of the power of attorney.\n (i) The release of patient information shall be subject to: (i)\narticle twenty-seven-F of this chapter in the case of confidential\nHIV-related information; (ii) section seventeen of this article and\nsections twenty-three hundred one, twenty-three hundred six and\ntwenty-three hundred eight of this chapter in the case of termination of\na pregnancy and treatment for a sexually transmitted disease; (iii)\narticle thirty-three of the mental hygiene law; and (iv) any other\nprovisions of law creating special requirements relating to the release\nof patient information, including the federal health insurance\nportability and accountability act of 1996 and its implementing\nregulations.\n 4. Medical record access review committees. The commissioner shall\ndesignate medical record access review committees to hear appeals of the\ndenial of access to patient information as provided in paragraph (e) of\nsubdivision three of this section. The commissioner shall promulgate\nrules and regulations necessary to effectuate the provisions of this\nsubdivision.\n 5. Annual report. The commissioner shall submit an annual report on or\nbefore December thirty-first to the governor and the legislature. Such\nreport shall include, but not be limited to, the number of requests for\ncommittee review of providers' denial of access and the committees'\ndeterminations thereon.\n 6. Disclosure to third persons. Whenever a health care provider, as\notherwise authorized by law, discloses patient information to a person\nor entity other than the subject of such information or to other\nqualified persons, either a copy of the subject's written authorization\nshall be added to the patient information or the name and address of\nsuch third party and a notation of the purpose for the disclosure shall\nbe indicated in the file or record of such subject's patient information\nmaintained by the provider provided, however, that for disclosures made\nto government agencies making payments on behalf of patients or to\ninsurance companies licensed pursuant to the insurance law such a\nnotation shall only be entered at the time the disclosure is first made.\nThis subdivision shall not apply to disclosure to practitioners or other\npersonnel employed by or under contract with the facility, or to\ngovernment agencies for purposes of facility inspections or professional\nconduct investigations. Any disclosure made pursuant to this section\nshall be limited to that information necessary in light of the reason\nfor disclosure. Information so disclosed should be kept confidential by\nthe party receiving such information and the limitations on such\ndisclosure in this section shall apply to such party.\n 7. Applicability of federal law. Whenever federal law or applicable\nfederal regulations affecting the release of patient information are a\ncondition for the receipt of federal aid, and are inconsistent with the\nprovisions of this section, the provisions of federal law or federal\nregulations shall be controlling.\n 8. Challenges to accuracy. A qualified person may challenge the\naccuracy of information maintained in the patient information and may\nrequire that a brief written statement prepared by him or her concerning\nthe challenged information be inserted into the patient information.\nThis statement shall become a permanent part of the patient information\nand shall be released whenever the information at issue is released.\nThis subdivision shall apply only to factual statements and shall not\ninclude a provider's observations, inferences or conclusions.\n A facility may place reasonable restrictions on the time and frequency\nof any challenges to accuracy.\n 9. Waivers void. Any agreement by an individual to waive any right to\ninspect, copy or seek correction of patient information as provided for\nin this section shall be deemed to be void as against public policy and\nwholly unenforceable.\n 10. Nothing contained in this section shall restrict, expand or in any\nway limit the disclosure of any information pursuant to articles\ntwenty-three, thirty-one and forty-five of the civil practice law and\nrules or section six hundred seventy-seven of the county law.\n 11. No proceeding shall be brought or penalty assessed, except as\nprovided for in this section, against a health care provider, who in\ngood faith, denies access to patient information.\n 12. Immunity from liability. No health care provider shall be\nsubjected to civil liability arising solely from granting or providing\naccess to any patient information in accordance with this section.\n 13. (a) A health care provider which has in its possession patient\ninformation and/or patient medical records and which has determined to\npermanently cease to do business or practice in this state shall, at\nleast thirty days prior to such action, make a good faith effort to\nnotify each of the health care provider's current patients that the\noffice will be closing and to inform each such patient of his or her\nright to request that his or her patient information and/or patient\nmedical records be sent to a health care provider, health care facility\nor health care practitioner of the patient's choosing or, alternatively,\nthat such information and records be returned to the patient.\n (b) The provisions of this subdivision shall not affect any rights\nafforded pursuant to section seventeen of this title.\n (c) Nothing in this subdivision shall affect the period of time that a\nhealth care provider is lawfully required to retain a patient's medical\ninformation and medical records.\n (d) The provisions of this subdivision shall only apply with respect\nto a patient whose chart includes written permission to receive the\nnotification described in paragraph (a) of this subdivision.\n * NB There are 2 § 18's\n