N.Y. MHY Law § 33.13 — New York Code / Act MHY / Title E / Article 33 / Section 33.13
Clinical records; confidentiality
Status: in_force

§ 33.13 Clinical records; confidentiality.\n  (a) A clinical record for each patient or client shall be maintained\nat each facility licensed or operated by the office of mental health or\nthe office for people with developmental disabilities, hereinafter\nreferred to as the offices. For the purposes of this section, the term\n"facility" shall mean "facility" as such term is defined in section 1.03\nof this chapter, provided, however, such term shall also include any\nprovider of services for individuals with mental illness or\ndevelopmental disabilities which is operated by, under contract with,\nreceives funding from, or is otherwise approved to render services by, a\ndirector of community services pursuant to article forty-one of this\nchapter or one or both of the offices, including any such provider which\nis exempt from the requirement for an operating certificate under\narticle sixteen or article thirty-one of this chapter. The record shall\ncontain information on all matters relating to the admission, legal\nstatus, care, and treatment of the patient or client and shall include\nall pertinent documents relating to the patient or client. The\ncommissioners of such offices, by regulation, each shall determine the\nscope and method of recording information, including data pertaining to\nadmission, legal matters affecting the patient or client, records and\nnotation of course of care and treatment, therapies, restrictions on\npatient's or client's rights, periodic examinations, and such other\ninformation as he or she may require.\n  * (b) The commissioners may require that statistical information about\npatients or clients be reported to the offices.\n  * NB Effective until June 30, 2027\n  * (b) The commissioners may require that statistical information about\npatients or clients be reported to the offices. Names of patients\ntreated at out-patient or non-residential facilities shall not be\nrequired as part of any such reports. Hospitals licensed by the office\nof mental health and general hospitals shall provide to the office of\nmental health, upon request, records relating to persons described in\nsubdivision (j) of section 7.09 of this chapter who may be disqualified\nfrom possessing a firearm pursuant to 18 USC 422(4)(d).\n  * NB Effective June 30, 2027\n  (c) Such information about patients or clients reported to the\noffices, including the identification of patients or clients, clinical\nrecords or clinical information tending to identify patients or clients,\nand records and information concerning persons under consideration for\nproceedings pursuant to article ten of this chapter, at office\nfacilities shall not be a public record and shall not be released by the\noffices or its facilities to any person or agency outside of the offices\nexcept as follows:\n  1. pursuant to an order of a court of record requiring disclosure upon\na finding by the court that the interests of justice significantly\noutweigh the need for confidentiality, provided, however, that nothing\nherein shall be construed to affect existing rights of employees in\ndisciplinary proceedings.\n  2. to the mental hygiene legal service.\n  3. to attorneys representing patients or clients in proceedings in\nwhich the patients' or clients' involuntary hospitalization or assisted\noutpatient treatment is at issue.\n  4. to the justice center for the protection of people with special\nneeds.\n  5. to the medical review board of the state commission of correction\nwhen such board has requested such information with respect to the death\nof a named person, or, with the consent of a patient or client when such\nboard has requested information about the patient or client providing\nthat such board requires such information in the exercise of its\nstatutory functions, powers and duties. Information, books, records or\ndata which are confidential as provided by law shall be kept\nconfidential by the state commission and any limitation on the release\nthereof imposed by law upon the party furnishing the information, books,\nrecords or data shall apply to the medical review board.\n  6. to an endangered individual and a law enforcement agency when a\ntreating psychiatrist or psychologist has determined that a patient or\nclient presents a serious and imminent danger to that individual. The\nreasons for any such disclosures shall be fully documented in the\nclinical record. Nothing in this paragraph shall be construed to impose\nan obligation upon a treating psychiatrist or psychologist to release\ninformation pursuant to this paragraph.\n  7. with the consent of the patient or client or of someone authorized\nto act on the patient's or client's behalf, to persons and entities who\nhave a demonstrable need for such information and who have obtained such\nconsent, provided that disclosure will not reasonably be expected to be\ndetrimental to the patient, client or another provided, however, that\nrelease of such information to a patient or client shall not be governed\nby this subdivision.\n  8. to the state board for professional medical conduct or the office\nof professional discipline or their respective representatives when such\npersons or entities request such information in the exercise of their\nstatutory function, power and duties provided, however, that no such\ninformation shall be released when it concerns the subject of an inquiry\nwho is also a patient or client, except pursuant to paragraph one of\nthis subdivision.\n  9. with the consent of the appropriate commissioner, to:\n  (i) governmental agencies, insurance companies licensed pursuant to\nthe insurance law and other third parties requiring information\nnecessary for payments to be made to or on behalf of patients or clients\npursuant to contract or in accordance with law, such information to be\nkept confidential and limited to the information required.\n  (ii) persons and agencies needing information to locate missing\npersons or to governmental agencies in connection with criminal\ninvestigations, such information to be limited to identifying data\nconcerning hospitalization.\n  (iii) qualified researchers upon the approval of the institutional\nreview board or other committee specially constituted for the approval\nof research projects at the facility, provided that the researcher shall\nin no event disclose information tending to identify a patient or\nclient.\n  (iv) a coroner, a county medical examiner, or the chief medical\nexaminer for New York city upon the request of a facility director that\nan investigation be conducted into the death of a patient or client for\nwhom such record is maintained.\n  (v) appropriate persons and entities when necessary to prevent\nimminent serious harm to the patient or client or another person,\nprovided, however, nothing in this subparagraph shall be construed to\nimpose an obligation to release information pursuant to this\nsubparagraph.\n  (vi) a district attorney when such request for information is in\nconnection with and necessary to the furtherance of a criminal\ninvestigation of patient or client abuse.\n  (vii) appropriate persons and entities when necessary to protect the\npublic concerning a specific sex offender requiring civil management\nunder article ten of this chapter.\n  (viii) to the attorney general, case review panel, or psychiatric\nexaminers described in article ten of this chapter, when such persons or\nentities request such information in the exercise of their statutory\nfunctions, powers and duties under article ten of this chapter.\n  10. to a correctional facility, when the chief administrative officer\nhas requested such information with respect to a named incarcerated\nindividual of such correctional facility as defined by subdivision three\nof section forty of the correction law or to the department of\ncorrections and community supervision, when the department has requested\nsuch information with respect to a person under its jurisdiction or an\nincarcerated individual of a state correctional facility, when such\nincarcerated individual is within four weeks of release from such\ninstitution to community supervision. Information released pursuant to\nthis paragraph may be limited to a summary of the record, including but\nnot limited to: the basis for referral to the facility; the diagnosis\nupon admission and discharge; a diagnosis and description of the\npatient's or client's current mental condition; the current course of\ntreatment, medication and therapies; and the facility's recommendation\nfor future mental hygiene services, if any. Such information may be\nforwarded to the department of corrections and community supervision\nstaff in need of such information for the purpose of making a\ndetermination regarding an incarcerated individual's health care,\nsecurity, safety or ability to participate in programs. In the event an\nincarcerated individual is transferred, the sending correctional\nfacility shall forward, upon request, such summaries to the chief\nadministrative officer of any correctional facility to which the\nincarcerated individual is subsequently incarcerated. The office of\nmental health and the office for people with developmental disabilities,\nin consultation with the commission of correction and the department of\ncorrections and community supervision, shall promulgate rules and\nregulations to implement the provisions of this paragraph.\n  11. to a qualified person pursuant to section 33.16 of this chapter.\n  12. to a director of community services as defined in article nine of\nthis chapter or his or her designee, provided that such director or his\nor her designee (i) requests such information in the exercise of his or\nher statutory functions, powers and duties pursuant to section 9.37,\n9.45, 9.47, 9.48, 9.60 or 41.13 of this chapter; or (ii) the disclosure\nof information is required pursuant to section 9.46 of this chapter.\n  13. to the state division of criminal justice services for the sole\npurposes of:\n  (i) providing, facilitating, evaluating or auditing access by the\ncommissioner of mental health to criminal history information pursuant\nto subdivision (i) of section 7.09 of this chapter; or\n  (ii) providing information to the criminal justice information\nservices division of the federal bureau of investigation by the\ncommissioner of mental health or the commissioner of developmental\ndisabilities, for the purposes of responding to queries to the national\ninstant criminal background check system regarding attempts to purchase\nor otherwise take possession of firearms, in accordance with applicable\nfederal laws or regulations.\n  14. to the criminal justice information services division of the\nfederal bureau of investigation, for the purposes of responding to\nqueries to the national instant criminal background check system,\nregarding attempts to purchase or otherwise take possession of firearms,\nin accordance with applicable federal laws or regulations.\n  15. to the division of criminal justice services, names and other\nnon-clinical identifying information for the sole purpose of\nimplementing the division's responsibilities and duties under sections\n400.00 and 400.02 of the penal law.\n  16. to a mental health incident review panel, or members thereof,\nestablished by the commissioner pursuant to section 31.37 of this title,\nin connection with incident reviews conducted by such panel.\n  17. to the agency designated by the governor pursuant to subdivision\n(b) of section 558 of the executive law to provide protection and\nadvocacy services and administer the protection and advocacy system as\nprovided for by federal law. Such agency shall not be charged any fee\nfor copies of records obtained from a facility under this article.\n  18. to the board of correction of the city of New York when such board\nhas requested such information with respect to the death of a named\nperson, or, with the consent of a patient or client when such board has\nrequested information about the patient or client providing that such\nboard requires such information in the exercise of its functions, powers\nand duties. Information, books, records or data which are confidential\nas provided by law shall be kept confidential by the board of correction\nof the city of New York and any limitation on the release thereof\nimposed by law upon the party furnishing the information, books, records\nor data shall apply to the board of correction of the city of New York.\n  * (d) Nothing in this section shall prevent the electronic or other\nexchange of information concerning patients or clients, including\nidentification, between and among (i) facilities or others providing\nservices for such patients or clients pursuant to an approved local\nservices plan, as defined in article forty-one of this chapter, or\npursuant to agreement with the department, and (ii) the department or\nany of its licensed or operated facilities. Neither shall anything in\nthis section prevent the exchange of information concerning patients or\nclients, including identification, between facilities and managed care\norganizations, behavioral health organizations, health homes or other\nentities authorized by the department or the department of health to\nprovide, arrange for or coordinate health care services for such\npatients or clients who are enrolled in or receiving services from such\norganizations or entities. Provided however, written patient or client\nconsent shall be obtained prior to the exchange of information where\nrequired by 42 USC 290dd-2 as amended, and any regulations promulgated\nthereunder. Furthermore, subject to the prior approval of the\ncommissioner of mental health, hospital emergency services licensed\npursuant to article twenty-eight of the public health law shall be\nauthorized to exchange information concerning patients or clients\nelectronically or otherwise with other hospital emergency services\nlicensed pursuant to article twenty-eight of the public health law\nand/or hospitals licensed or operated by the office of mental health;\nprovided that such exchange of information is consistent with standards,\ndeveloped by the commissioner of mental health, which are designed to\nensure confidentiality of such information. Additionally, information so\nexchanged shall be kept confidential and any limitations on the release\nof such information imposed on the party giving the information shall\napply to the party receiving the information.\n  * NB Effective until June 30, 2027\n  * (d) Nothing in this section shall prevent the exchange of\ninformation concerning patients or clients, including identification,\nbetween (i) facilities or others providing services for such patients or\nclients pursuant to an approved local services plan, as defined in\narticle forty-one, or pursuant to agreement with the department and (ii)\nthe department or any of its facilities. Neither shall anything in this\nsection prevent the exchange of information concerning patients or\nclients, including identification, between facilities and managed care\norganizations, behavioral health organizations, health homes or other\nentities authorized by the department or the department of health to\nprovide, arrange for or coordinate health care services for such\npatients or clients who are enrolled in or receiving services from such\norganizations or entities. Provided however, written patient or client\nconsent shall be obtained prior to the exchange of information where\nrequired by 42 USC 290dd-2 as amended, and any regulations promulgated\nthereunder. Information so exchanged shall be kept confidential and any\nlimitations on the release of such information imposed on the party\ngiving the information shall apply to the party receiving the\ninformation.\n  * NB Effective June 30, 2027\n  (e) Clinical information tending to identify patients or clients and\nclinical records maintained at a facility not operated by the offices,\nshall not be a public record and shall not be released to any person or\nagency outside such facility except pursuant to subdivisions (b), (c)\nand (d) of this section. The director of such a facility may consent to\nthe release of such information and records, subject to regulation by\nthe commissioner, pursuant to the exceptions stated in subdivision (c)\nof this section; provided that, for the purpose of this subdivision,\nsuch consent shall be deemed to be the consent otherwise required of the\ncommissioner pursuant to subdivision (c) of this section. Nothing in\nthis subdivision shall be construed to limit, restrict or otherwise\naffect access to such clinical information or records by the mental\nhygiene legal service, the commission on quality of care for the\nmentally disabled or the offices when such access is authorized\nelsewhere in law.\n  (f) All records of identity, diagnosis, prognosis, treatment, care\ncoordination or any other information contained in a patient or client's\nrecord shall be confidential unless disclosure is permitted under\nsubdivision (c) of this section. Any disclosure made pursuant to this\nsection shall be limited to that information necessary and required in\nlight of the reason for disclosure. Information so disclosed shall be\nkept confidential by the party receiving such information and the\nlimitations on disclosure in this section shall apply to such party.\nExcept for disclosures made to the mental hygiene legal service, to\npersons reviewing information or records in the ordinary course of\ninsuring that a facility is in compliance with applicable quality of\ncare standards, or to governmental agents requiring information\nnecessary for payments to be made to or on behalf of patients or clients\npursuant to contract or in accordance with law, a notation of all such\ndisclosures shall be placed in the clinical record of that individual\nwho shall be informed of all such disclosures upon request; provided,\nhowever, that for disclosures made to insurance companies licensed\npursuant to the insurance law, such a notation need only be entered at\nthe time the disclosure is first made.\n