NY Ment Hygiene L § 33.13 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 33 - Rights of Patients 33.13 - Clinical Records; Confidentiality.

§ 33.13 Clinical records; confidentiality.  (a)  A  clinical record for each patient or client shall be maintained at each facility licensed or operated by the office of mental health  or the  office  for  people  with  developmental  disabilities, hereinafter referred to as the offices. For the purposes of this section,  the  term "facility" shall mean "facility" as such term is defined in section 1.03 of  this  chapter,  provided,  however, such term shall also include any provider  of  services  for   individuals   with   mental   illness   or developmental  disabilities  which  is operated by, under contract with, receives funding from, or is otherwise approved to render services by, a director of community services pursuant to  article  forty-one  of  this chapter or one or both of the offices, including any such provider which is  exempt  from  the  requirement  for  an  operating certificate under article sixteen or article thirty-one of this chapter. The record  shall contain  information  on  all  matters  relating to the admission, legal status, care, and treatment of the patient or client and  shall  include all   pertinent  documents  relating  to  the  patient  or  client.  The commissioners of such offices, by regulation, each shall  determine  the scope  and method of recording information, including data pertaining to admission, legal matters affecting the patient or  client,  records  and notation  of  course  of  care and treatment, therapies, restrictions on patient's or client's rights,  periodic  examinations,  and  such  other information as he or she may require.   * (b) The commissioners may require that statistical information about patients or clients be reported to the offices.   * NB Effective until June 30, 2022   * (b) The commissioners may require that statistical information about patients  or  clients  be  reported  to  the  offices. Names of patients treated at  out-patient  or  non-residential  facilities  shall  not  be required  as  part of any such reports. Hospitals licensed by the office of mental health and general hospitals shall provide to  the  office  of mental  health,  upon  request, records relating to persons described in subdivision (j) of section 7.09 of this chapter who may be  disqualified from possessing a firearm pursuant to 18 USC 422(4)(d).   * NB Effective June 30, 2022  (c)  Such  information  about  patients  or  clients  reported  to the offices, including the identification of patients or  clients,  clinical records or clinical information tending to identify patients or clients, and  records  and information concerning persons under consideration for proceedings  pursuant  to  article  ten  of  this  chapter,  at   office facilities shall not be a public record and shall not be released by the offices or its facilities to any person or agency outside of the offices except as follows:   1. pursuant to an order of a court of record requiring disclosure upon a  finding  by  the  court  that  the interests of justice significantly outweigh the need for confidentiality, provided, however,  that  nothing herein  shall  be  construed  to  affect existing rights of employees in disciplinary proceedings.   2. to the mental hygiene legal service.   3. to attorneys representing patients or  clients  in  proceedings  in which  the patients' or clients' involuntary hospitalization or assisted outpatient treatment is at issue.   4. to the justice center for the protection  of  people  with  special needs.   5.  to  the medical review board of the state commission of correction when such board has requested such information with respect to the death of a named person, or, with the consent of a patient or client when such board has requested information about the patient  or  client  providing  that  such  board  requires  such  information  in  the  exercise of its statutory functions, powers and duties. Information, books,  records  or data   which   are  confidential  as  provided  by  law  shall  be  kept confidential  by  the state commission and any limitation on the release thereof imposed by law upon the party furnishing the information, books, records or data shall apply to the medical review board.   6. to an endangered individual and a law  enforcement  agency  when  a treating  psychiatrist  or psychologist has determined that a patient or client presents a serious and imminent danger to  that  individual.  The reasons  for  any  such  disclosures  shall  be  fully documented in the clinical record. Nothing in this paragraph shall be construed to  impose an  obligation  upon  a treating psychiatrist or psychologist to release information pursuant to this paragraph.   7. with the consent of the patient or client or of someone  authorized to  act on the patient's or client's behalf, to persons and entities who have a demonstrable need for such information and who have obtained such consent, provided that disclosure will not reasonably be expected to  be detrimental  to  the  patient, client or another provided, however, that release of such information to a patient or client shall not be governed by this subdivision.   8. to the state board for professional medical conduct or  the  office of professional discipline or their respective representatives when such persons  or  entities  request such information in the exercise of their statutory function, power and duties provided,  however,  that  no  such information shall be released when it concerns the subject of an inquiry who  is  also  a  patient or client, except pursuant to paragraph one of this subdivision.   9. with the consent of the appropriate commissioner, to:  (i) governmental agencies, insurance companies  licensed  pursuant  to the   insurance  law  and  other  third  parties  requiring  information necessary for payments to be made to or on behalf of patients or clients pursuant to contract or in accordance with law, such information  to  be kept confidential and limited to the information required.  (ii)  persons  and  agencies  needing  information  to  locate missing persons  or  to  governmental  agencies  in  connection  with   criminal investigations,  such  information  to  be  limited  to identifying data concerning hospitalization.  (iii) qualified researchers upon the  approval  of  the  institutional review  board  or other committee specially constituted for the approval of research projects at the facility, provided that the researcher shall in no event disclose  information  tending  to  identify  a  patient  or client.  (iv)  a  coroner,  a  county  medical  examiner,  or the chief medical examiner for New York city upon the request of a facility director  that an  investigation be conducted into the death of a patient or client for whom such record is maintained.  (v)  appropriate  persons  and  entities  when  necessary  to  prevent imminent  serious  harm  to  the  patient  or  client or another person, provided, however, nothing in this subparagraph shall  be  construed  to impose   an   obligation   to   release  information  pursuant  to  this subparagraph.  (vi) a district attorney when  such  request  for  information  is  in connection   with  and  necessary  to  the  furtherance  of  a  criminal investigation of patient or client abuse.  (vii) appropriate persons and entities when necessary to  protect  the public  concerning  a  specific  sex offender requiring civil management under article ten of this chapter.  (viii) to the attorney general,  case  review  panel,  or  psychiatric examiners described in article ten of this chapter, when such persons or entities  request  such  information  in the exercise of their statutory functions, powers and duties under article ten of this chapter.   10.  to a correctional facility, when the chief administrative officer has requested such information with  respect  to  a  named  incarcerated individual of such correctional facility as defined by subdivision three of  section  forty  of  the  correction  law  or  to  the  department of corrections and community supervision, when the department has requested such information with respect to a person under its jurisdiction  or  an incarcerated  individual  of  a  state  correctional facility, when such incarcerated individual is  within  four  weeks  of  release  from  such institution  to  community supervision. Information released pursuant to this paragraph may be limited to a summary of the record, including  but not  limited  to:  the basis for referral to the facility; the diagnosis upon admission  and  discharge;  a  diagnosis  and  description  of  the patient's  or  client's  current mental condition; the current course of treatment, medication and therapies; and the  facility's  recommendation for  future  mental  hygiene  services,  if any. Such information may be forwarded to the department of  corrections  and  community  supervision staff  in  need  of  such  information  for  the  purpose  of  making  a determination  regarding  an  incarcerated  individual's  health   care, security,  safety or ability to participate in programs. In the event an incarcerated  individual  is  transferred,  the   sending   correctional facility  shall  forward,  upon  request,  such  summaries  to the chief administrative  officer  of  any  correctional  facility  to  which  the incarcerated  individual  is  subsequently  incarcerated.  The office of mental health and the office for people with developmental disabilities, in consultation with the commission of correction and the department  of corrections  and  community  supervision,  shall  promulgate  rules  and regulations to implement the provisions of this paragraph.   11. to a qualified person pursuant to section 33.16 of this chapter.   12. to a director of community services as defined in article nine  of this  chapter or his or her designee, provided that such director or his or her designee (i) requests such information in the exercise of his  or her  statutory  functions,  powers  and duties pursuant to section 9.37, 9.45, 9.47, 9.48, 9.60 or 41.13 of this chapter; or (ii) the  disclosure of information is required pursuant to section 9.46 of this chapter.   13.  to  the  state division of criminal justice services for the sole purposes of:  (i) providing, facilitating, evaluating  or  auditing  access  by  the commissioner  of  mental health to criminal history information pursuant to subdivision (i) of section 7.09 of this chapter; or  (ii)  providing  information  to  the  criminal  justice   information services  division  of  the  federal  bureau  of  investigation  by  the commissioner of mental  health  or  the  commissioner  of  developmental disabilities,  for the purposes of responding to queries to the national instant criminal background check system regarding attempts to  purchase or  otherwise take possession of firearms, in accordance with applicable federal laws or regulations.   14. to the criminal  justice  information  services  division  of  the federal  bureau  of  investigation,  for  the  purposes of responding to queries to  the  national  instant  criminal  background  check  system, regarding attempts to purchase or otherwise take possession of firearms, in accordance with applicable federal laws or regulations.   15.  to  the  division  of  criminal justice services, names and other non-clinical  identifying  information   for   the   sole   purpose   of  implementing  the  division's responsibilities and duties under sections 400.00 and 400.02 of the penal law.   16.  to  a  mental  health  incident review panel, or members thereof, established by the commissioner pursuant to section 31.37 of this title, in connection with incident reviews conducted by such panel.   17. to the agency designated by the governor pursuant  to  subdivision (b)  of  section  558  of  the  executive  law to provide protection and advocacy services and administer the protection and advocacy  system  as provided  for  by  federal law. Such agency shall not be charged any fee for copies of records obtained from a facility under this article.   18. to the board of correction of the city of New York when such board has requested such information with respect to  the  death  of  a  named person,  or, with the consent of a patient or client when such board has requested information about the patient or client  providing  that  such board requires such information in the exercise of its functions, powers and  duties.  Information, books, records or data which are confidential as provided by law shall be kept confidential by the board of correction of the city of New York  and  any  limitation  on  the  release  thereof imposed by law upon the party furnishing the information, books, records or data shall apply to the board of correction of the city of New York.   * (d)  Nothing  in  this section shall prevent the electronic or other exchange  of  information  concerning  patients  or  clients,  including identification,  between  and  among  (i) facilities or others providing services for such patients or clients  pursuant  to  an  approved  local services  plan,  as  defined  in  article  forty-one of this chapter, or pursuant to agreement with the department, and (ii)  the  department  or any  of  its  licensed or operated facilities. Neither shall anything in this section prevent the exchange of information concerning patients  or clients,  including  identification, between facilities and managed care organizations, behavioral health organizations, health  homes  or  other entities  authorized  by  the  department or the department of health to provide, arrange  for  or  coordinate  health  care  services  for  such patients  or clients who are enrolled in or receiving services from such organizations or entities. Provided however, written patient  or  client consent  shall  be  obtained  prior to the exchange of information where required by 42 USC 290dd-2 as amended, and any  regulations  promulgated thereunder.   Furthermore,   subject   to  the  prior  approval  of  the commissioner of mental  health,  hospital  emergency  services  licensed pursuant  to  article  twenty-eight  of  the  public health law shall be authorized  to  exchange  information  concerning  patients  or  clients electronically  or  otherwise  with  other  hospital  emergency services licensed pursuant to article  twenty-eight  of  the  public  health  law and/or  hospitals  licensed  or operated by the office of mental health; provided that such exchange of information is consistent with standards, developed by the commissioner of mental health, which  are  designed  to ensure confidentiality of such information. Additionally, information so exchanged  shall be kept confidential and any limitations on the release of such information imposed on the party giving  the  information  shall apply to the party receiving the information.   * NB Effective until June 30, 2022   * (d)   Nothing   in  this  section  shall  prevent  the  exchange  of information concerning patients or  clients,  including  identification, between (i) facilities or others providing services for such patients or clients  pursuant  to  an  approved  local  services plan, as defined in article forty-one, or pursuant to agreement with the department and (ii) the department or any of its facilities. Neither shall anything in  this section  prevent  the  exchange  of  information  concerning patients or clients, including identification, between facilities and  managed  care  organizations,  behavioral  health  organizations, health homes or other entities authorized by the department or the  department  of  health  to provide,  arrange  for  or  coordinate  health  care  services  for such patients  or clients who are enrolled in or receiving services from such organizations or entities. Provided however, written patient  or  client consent  shall  be  obtained  prior to the exchange of information where required by 42 USC 290dd-2 as amended, and any  regulations  promulgated thereunder.  Information so exchanged shall be kept confidential and any limitations on the release of such  information  imposed  on  the  party giving   the   information  shall  apply  to  the  party  receiving  the information.   * NB Effective June 30, 2022  (e) Clinical information tending to identify patients or  clients  and clinical  records  maintained at a facility not operated by the offices, shall not be a public record and shall not be released to any person  or agency  outside  such  facility except pursuant to subdivisions (b), (c) and (d) of this section. The director of such a facility may consent  to the  release  of  such information and records, subject to regulation by the commissioner, pursuant to the exceptions stated in  subdivision  (c) of  this  section;  provided  that, for the purpose of this subdivision, such consent shall be deemed to be the consent otherwise required of the commissioner pursuant to subdivision (c) of  this  section.  Nothing  in this  subdivision  shall  be  construed  to limit, restrict or otherwise affect access to such clinical information  or  records  by  the  mental hygiene  legal  service,  the  commission  on  quality  of  care for the mentally  disabled  or  the  offices  when  such  access  is  authorized elsewhere in law.  (f)  All  records  of  identity, diagnosis, prognosis, treatment, care coordination or any other information contained in a patient or client's record shall  be  confidential  unless  disclosure  is  permitted  under subdivision  (c)  of  this section. Any disclosure made pursuant to this section shall be limited to that information necessary and  required  in light  of  the  reason for disclosure. Information so disclosed shall be kept confidential by  the  party  receiving  such  information  and  the limitations  on  disclosure  in  this section shall apply to such party. Except for disclosures made to the  mental  hygiene  legal  service,  to persons  reviewing  information  or  records  in  the ordinary course of insuring that a facility is in compliance  with  applicable  quality  of care   standards,   or  to  governmental  agents  requiring  information necessary for payments to be made to or on behalf of patients or clients pursuant to contract or in accordance with law, a notation of  all  such disclosures  shall  be  placed in the clinical record of that individual who shall be informed of all such disclosures  upon  request;  provided, however,  that  for  disclosures  made  to  insurance companies licensed pursuant to the insurance law, such a notation need only be  entered  at the time the disclosure is first made.