N.Y. MHY Law § 33.16 — New York Code / Act MHY / Title E / Article 33 / Section 33.16
Access to clinical records
Status: in_force

§ 33.16 Access to clinical records.\n  (a) Definitions. For the purposes of this section:\n  1. "Clinical record" means any information concerning or relating to\nthe examination or treatment of an identifiable patient or client\nmaintained or possessed by a facility which has treated or is treating\nsuch patient or client, except data disclosed to a practitioner in\nconfidence by other persons on the basis of an express condition that\nsuch data would never be disclosed to the patient or client or other\npersons, provided that such data has never been disclosed by the\npractitioner or a facility to any other person. If at any time such data\nis disclosed, it shall be considered clinical records for the purposes\nof this section.  For purposes of this subdivision, "disclosure to any\nother person" shall not include disclosures made pursuant to section\n33.13 of this article, to practitioners as part of a consultation or\nreferral during the treatment of the patient or client, to the statewide\nplanning and research cooperative system, or to the committee or a court\npursuant to the provisions of this section or to an insurance carrier\ninsuring, or an attorney consulted by, a facility.\n  2. "Committee" means a clinical record access review committee\nappointed pursuant to this section.\n  3. "Facility" means a facility as defined in section 1.03 of this\nchapter, a program requiring approval for operation pursuant to article\nthirty-two of this chapter, institutions offering training in\npsychotherapy, psychoanalysis and related areas chartered pursuant to\nsection two hundred sixteen of the education law, or, notwithstanding\nsection 1.03 of this chapter, any provider of services for persons with\nmental illness or developmental disabilities which is operated by, under\ncontract with, receives funding from, or is otherwise approved to render\nservices by, a director of community services pursuant to article\nforty-one of this chapter or one or both of the offices, including any\nsuch provider which is exempt from the requirement for an operating\ncertificate under article sixteen or article thirty-one of this chapter.\n  4. "Mental health practitioner" or "practitioner" means a person\nemployed by or rendering a service at a facility maintaining the\nclinical record licensed under article one hundred thirty-one of the\neducation law who practices psychiatry or a person licensed under\narticle one hundred thirty-nine, one hundred fifty-three or one hundred\nfifty-four of the education law or any other person not prohibited by\nlaw from providing mental health or developmental disabilities services.\n  5. "Patient or client" means an individual concerning whom a clinical\nrecord is maintained or possessed by a facility as defined in paragraph\nthree of this subdivision.\n  6. "Qualified person" means any properly identified patient or client,\nguardian of a person with a developmental disability appointed pursuant\nto article seventeen-A of the surrogate's court procedure act, or\ncommittee for an incompetent appointed pursuant to this chapter or a\nparent of an infant, or a guardian of an infant appointed pursuant to\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 pursuant to paragraph three of subdivision\n(b) of this section, or a parent, spouse, adult child, or adult sibling\nof an adult patient or client who may be entitled to request access to a\nclinical record pursuant to paragraph four of subdivision (b) of this\nsection.\n  7. "Treating practitioner" means the practitioner, who has or had\nprimary responsibility for the care of the patient or client within the\nfacility or if such practitioner is unavailable, a practitioner\ndesignated by such facility.\n  (b) Access by qualified persons. 1. Subject to the provisions of\nsubdivision (c) of this section, upon the written request of any patient\nor client, a facility shall provide an opportunity, within ten days, for\nsuch individual to inspect any clinical record concerning or relating to\nthe examination or treatment of such individual in the possession of\nsuch facility.\n  2. Subject to the provisions of subdivision (c) of this section, upon\nthe written request of a committee for an incompetent appointed pursuant\nto this chapter or a guardian of the person of a person with a\ndevelopmental disability appointed pursuant to article seventeen-A of\nthe surrogate's court procedure act, a facility shall provide an\nopportunity, within ten days, for the committee or such guardian to\ninspect any clinical record concerning the patient or client in the\npossession of such facility. Provided, however, in the case of any such\nrequest by such a guardian to inspect the clinical record concerning a\nclient eighteen years of age or older, the facility shall notify such\nclient of such request.\n  3. Subject to the provisions of subdivision (c) of this section and\nexcept as otherwise provided by law, upon the written request of a\nparent of an infant or guardian of an infant appointed pursuant to\narticle seventeen of the surrogate's court procedure act, or any other\nlegally appointed guardian of an infant, a facility shall provide an\nopportunity, within ten days, for such parent or guardian to inspect any\nclinical record maintained or possessed by such facility concerning care\nand treatment of the infant for which the consent of a parent or\nguardian was obtained or has been requested; provided, however, that\nsuch parent or guardian shall not be entitled to inspect or make copies\nof any clinical record concerning the care and treatment of an infant\nwhere the treating practitioner determines that access to the\ninformation requested by such parent or guardian would have a\ndetrimental effect on the practitioner's professional relationship with\nthe infant, or on the care and treatment of the infant or on the\ninfant's relationship with his or her parents or guardians.\n  4. Subject to the provisions of subdivision (c) of this section and\nexcept as otherwise required by law, upon the written request of a\nparent of an adult patient or client, spouse, adult child, or adult\nsibling of a patient or client, a facility shall provide an opportunity,\nwithin ten days, for such parent, spouse, adult child or adult sibling\nto inspect any clinical record maintained or possessed by such facility\nconcerning the care and treatment of such patient or client for which\nthe parent, spouse, adult child or adult sibling is authorized pursuant\nto law, rule or regulation to provide consent and has consented or is\nbeing requested to provide such consent; provided, however, that such\nparent, spouse, adult child or adult sibling shall not be entitled to\ninspect or make copies of any clinical record concerning the care and\ntreatment of the patient or client where the treating practitioner\ndetermines that access to the information requested by such parent,\nspouse, adult child or adult sibling would have a detrimental effect on\nthe practitioner's professional relationship with the patient or client,\nor on the care and treatment of the patient or client or on the\nrelationship of the patient or client with his or her parents, spouse,\nadult child or adult sibling. Any inspection of a clinical record made\npursuant to this paragraph shall be limited to that information which is\nrelevant in light of the reason for such inspection.\n  5. Subject to the provisions of this subdivision and subdivision (c)\nof this section, upon the written request of any qualified person, a\nfacility shall furnish to such person, within a reasonable time, a copy\nof any clinical record requested which the person is authorized to\ninspect pursuant to this subdivision.\n  6. The facility may impose a reasonable charge for all inspections and\ncopies, not exceeding the costs incurred by such provider. However, the\nreasonable charge for paper copies shall not exceed seventy-five cents\nper page. A qualified person shall not be denied access to the clinical\nrecord solely because of inability to pay. No charge may be imposed\nunder this section for providing, releasing, or delivering clinical\nrecords or copies of clinical records where requested for the purpose of\nsupporting an application, claim or appeal for any government benefit or\nprogram, provided that, where a provider maintains clinical records 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  7. A facility may place reasonable limitations on the time, place, and\nfrequency of any inspection of clinical records.\n  8. A treating practitioner may request the opportunity to review the\npatient information with the qualified person requesting such\ninformation, but such review shall not be a prerequisite for furnishing\nthe record.\n  9. A facility may make available for inspection either the original or\na copy of clinical records.\n  (c) Limitations on access. 1. Upon receipt of a written request by a\nqualified person to inspect or copy the clinical record maintained by a\nfacility, the facility shall inform the treating practitioner of the\nrequest. The treating practitioner may review the information requested.\nUnless the treating practitioner determines pursuant to paragraph three\nof this subdivision that the requested review of the clinical record can\nreasonably be expected to cause substantial and identifiable harm to the\npatient or client or others which would outweigh the qualified person's\nright of access to the record, review of such record shall be permitted\nor copies provided.\n  2. A patient or client over the age of twelve may be notified of any\nrequest by a qualified person to review his/her record and if the\npatient or client objects to disclosure, the facility, in consultation\nwith the treating practitioner may deny the request.\n  3. If, after consideration of all the attendant facts and\ncircumstances, the practitioner or treating practitioner determines that\nthe requested review of all or part of the clinical record can\nreasonably be expected to cause substantial and identifiable harm to the\npatient or client or others, or would have a detrimental effect as\ndefined in subdivision (b) of this section, the facility may accordingly\ndeny access to all or a part of the record and may grant access to a\nprepared summary of the record. In determining whether the review can\nreasonably be expected to cause substantial and identifiable harm to the\npatient or client or others which would outweigh the qualified person's\nright of access to the record or whether review of the record would have\na detrimental effect as defined in subdivision (b) of this section, the\npractitioner or treating practitioner may consider, among other things,\nthe following: (i) the need for, and the fact of, continuing care and\ntreatment; (ii) the extent to which the knowledge of the information\ncontained in the clinical record may be harmful to the health or safety\nof the patient or client or others; (iii) the extent to which the\nclinical record contains sensitive information disclosed in confidence\nto the practitioner or treating practitioner by family members, friends\nand other persons; (iv) the extent to which the clinical record contains\nsensitive information disclosed to the practitioner or the treating\npractitioner by the patient or client which would be injurious to the\npatient's or client's relationships with other persons except where the\npatient or client is requesting information concerning himself or\nherself; and (v) in the case of a minor making a request for access\npursuant to paragraph one of subdivision (b), the age of the patient or\nclient.\n  4. In the event of a denial of access, the qualified person shall be\ninformed by the facility of such denial, and of the qualified person's\nright to obtain, without cost, a review of the denial by the appropriate\nclinical record access review committee. If the qualified person\nrequests such review, the facility shall, within ten days of receipt of\nsuch request, transmit the record to the chairman of the appropriate\ncommittee with a statement setting forth the specific reasons access was\ndenied. After an in camera review of the materials provided and after\nproviding all parties a reasonable opportunity to be heard, the\ncommittee shall promptly make a determination whether the requested\nreviews of the record can reasonably be expected to cause substantial\nand identifiable harm to the patient or client or others which outweighs\nthe qualified person's right of access to the record pursuant to\nparagraph three of this subdivision or whether the requested review\nwould have a detrimental effect as defined in subdivision (b) of this\nsection, and shall accordingly determine whether access to all or part\nof such record 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 facility shall\ngrant access pursuant to such determination.\n  5. In the event that access is denied in whole or in part the\ncommittee shall notify the qualified person of his or her right to seek\njudicial review of the facility's determination pursuant to this\nsection. Within thirty days of receiving notification of the decision,\nthe qualified person may commence, upon notice, a special proceeding in\nsupreme court for a judgment requiring the provider to make available\nthe record for inspection or copying. The court upon such application\nand after an in camera review of the materials provided, including the\ndetermination and record of the committee, and after providing all\nparties an opportunity to be heard, shall determine whether there exists\na reasonable basis for the denial of access. The relief available\npursuant to this section shall be limited to a judgment requiring the\nfacility to make available to the qualified person the requested record\nfor inspection or copying.\n  (d) Clinical records access review committees. The commissioner of\nmental health, the commissioner of developmental disabilities and the\ncommissioner of alcoholism and substance abuse services shall appoint\nclinical record access review committees to hear appeals of the denial\nof access to patient or client records as provided in paragraph four of\nsubdivision (c) of this section. Members of such committees shall be\nappointed by the respective commissioners. Such clinical record access\nreview committees shall consist of no less than three nor more than five\npersons. The commissioners shall promulgate rules and regulations\nnecessary to effectuate the provisions of this subdivision.\n  (f) Applicability of federal law. Whenever federal law or applicable\nfederal regulations restrict, or as a condition for the receipt of\nfederal aid require, that the release of clinical records or information\nbe more restrictive than is provided under this section, the provisions\nof federal law or federal regulation shall be controlling.\n  (g) Challenges to accuracy. A qualified person may challenge the\naccuracy of information maintained in the clinical record and may\nrequire that a brief written statement prepared by him/her concerning\nthe challenged information be inserted into the clinical record. This\nstatement shall become a permanent part of the record and shall be\nreleased whenever the clinical record at issue is released. This\nsubdivision shall apply only to factual statements and shall not include\na provider's observations, inferences or conclusions. A facility may\nplace reasonable restrictions on the time and frequency of any\nchallenges to accuracy.\n  (h) Waivers void. Any agreement by an individual to waive any right to\ninspect, copy or seek correction of the clinical record as provided for\nin this section shall be deemed to be void as against public policy and\nwholly unenforceable.\n  (i) Disclosure. Nothing contained in this section shall restrict,\nexpand or in any way limit the disclosure of any information pursuant to\narticles twenty-three, thirty-one and forty-five of the civil practice\nlaw and rules or section six hundred seventy-seven of the county law.\n  (j) Proceedings. No proceeding shall be brought or penalty assessed,\nexcept as provided for in this section, against a facility, which in\ngood faith, denies access to a clinical record.\n  (k) Immunity from liability. No facility, practitioner, treating\npractitioner, mental health practitioner or clinical records access\nreview committee member shall be subjected to civil liability arising\nsolely from granting or providing access to any clinical record in\naccordance with this section.\n