NY Ment Hygiene L § 33.16 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 33 - Rights of Patients 33.16 - Access to Clinical Records.

§ 33.16 Access to clinical records.  (a) Definitions. For the purposes of this section:   1. "Clinical  record"  means any information concerning or relating to the examination or  treatment  of  an  identifiable  patient  or  client maintained  or  possessed by a facility which has treated or is treating such patient or client, except  data  disclosed  to  a  practitioner  in confidence  by  other  persons on the basis of an express condition that such data would never be disclosed to the patient  or  client  or  other persons,  provided  that  such  data  has  never  been  disclosed by the practitioner or a facility to any other person. If at any time such data is disclosed, it shall be considered clinical records for  the  purposes of  this section.   For purposes of this subdivision, "disclosure to any other person" shall not include disclosures  made  pursuant  to  section 33.13  of  this  article,  to practitioners as part of a consultation or referral during the treatment of the patient or client, to the statewide planning and research cooperative system, or to the committee or a court pursuant to the provisions of this section or to  an  insurance  carrier insuring, or an attorney consulted by, a facility.   2. "Committee"   means  a  clinical  record  access  review  committee appointed pursuant to this section.   3. "Facility" means a facility as defined  in  section  1.03  of  this chapter,  a program requiring approval for operation pursuant to article thirty-two  of  this  chapter,   institutions   offering   training   in psychotherapy,  psychoanalysis  and  related areas chartered pursuant to section two hundred sixteen of the education  law,  or,  notwithstanding section  1.03 of this chapter, any provider of services for persons 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.   4. "Mental  health  practitioner"  or  "practitioner"  means  a person employed by or  rendering  a  service  at  a  facility  maintaining  the clinical  record  licensed  under  article one hundred thirty-one of the education law who  practices  psychiatry  or  a  person  licensed  under article  one hundred thirty-nine, one hundred fifty-three or one hundred fifty-four of the education law or any other person  not  prohibited  by law from providing mental health or developmental disabilities services.   5. "Patient  or client" means an individual concerning whom a clinical record is maintained or possessed by a facility as defined in  paragraph three of this subdivision.   6. "Qualified person" means any properly identified patient or client, guardian  of a person with a developmental disability appointed pursuant to article seventeen-A  of  the  surrogate's  court  procedure  act,  or committee  for  an  incompetent  appointed pursuant to this chapter or a parent of an infant, or a guardian of an infant  appointed  pursuant  to article  seventeen  of  the  surrogate's  court  procedure  act or other legally appointed guardian of an infant who may be entitled  to  request access  to  a clinical record pursuant to paragraph three of subdivision (b) of this section, or a parent, spouse, adult child, or adult  sibling of an adult patient or client who may be entitled to request access to a clinical  record  pursuant  to paragraph four of subdivision (b) of this section.   7. "Treating practitioner" means the  practitioner,  who  has  or  had primary  responsibility for the care of the patient or client within the facility  or  if  such  practitioner  is  unavailable,  a   practitioner designated by such facility.  (b)  Access  by  qualified  persons.  1.  Subject to the provisions of subdivision (c) of this section, upon the written request of any patient or client, a facility shall provide an opportunity, within ten days, for such individual to inspect any clinical record concerning or relating to the  examination  or  treatment  of such individual in the possession of such facility.   2. Subject to the provisions of subdivision (c) of this section,  upon the written request of a committee for an incompetent appointed pursuant to  this  chapter  or  a  guardian  of  the  person  of  a person with a developmental disability appointed pursuant to  article  seventeen-A  of the  surrogate's  court  procedure  act,  a  facility  shall  provide an opportunity, within ten days, for the  committee  or  such  guardian  to inspect  any  clinical  record  concerning  the patient or client in the possession of such facility. Provided, however, in the case of any  such request  by  such a guardian to inspect the clinical record concerning a client eighteen years of age or older, the facility  shall  notify  such client of such request.   3.  Subject  to  the provisions of subdivision (c) of this section and except as otherwise provided by law,  upon  the  written  request  of  a parent  of  an  infant  or  guardian  of an infant appointed pursuant to article seventeen of the surrogate's court procedure act, or  any  other legally  appointed  guardian  of  an infant, a facility shall provide an opportunity, within ten days, for such parent or guardian to inspect any clinical record maintained or possessed by such facility concerning care and treatment of the infant  for  which  the  consent  of  a  parent  or guardian  was  obtained  or  has been requested; provided, however, that such parent or guardian shall not be entitled to inspect or make  copies of  any  clinical  record concerning the care and treatment of an infant where  the  treating  practitioner  determines  that   access   to   the information   requested   by  such  parent  or  guardian  would  have  a detrimental effect on the practitioner's professional relationship  with the  infant,  or  on  the  care  and  treatment  of the infant or on the infant's relationship with his or her parents or guardians.   4. Subject to the provisions of subdivision (c) of  this  section  and except  as  otherwise  required  by  law,  upon the written request of a parent of an adult patient or client,  spouse,  adult  child,  or  adult sibling of a patient or client, a facility shall provide an opportunity, within  ten  days, for such parent, spouse, adult child or adult sibling to inspect any clinical record maintained or possessed by such  facility concerning  the  care  and treatment of such patient or client for which the parent, spouse, adult child or adult sibling is authorized  pursuant to  law,  rule  or regulation to provide consent and has consented or is being requested to provide such consent; provided,  however,  that  such parent,  spouse,  adult  child or adult sibling shall not be entitled to inspect or make copies of any clinical record concerning  the  care  and treatment  of  the  patient  or  client  where the treating practitioner determines that access to the  information  requested  by  such  parent, spouse,  adult child or adult sibling would have a detrimental effect on the practitioner's professional relationship with the patient or client, or on the care and  treatment  of  the  patient  or  client  or  on  the relationship  of  the patient or client with his or her parents, spouse, adult child or adult sibling. Any inspection of a clinical  record  made pursuant to this paragraph shall be limited to that information which is relevant in light of the reason for such inspection.   5.  Subject  to the provisions of this subdivision and subdivision (c) of this section, upon the written request of  any  qualified  person,  a facility  shall furnish to such person, within a reasonable time, a copy  of any clinical record requested  which  the  person  is  authorized  to inspect pursuant to this subdivision.   6. The facility may impose a reasonable charge for all inspections and copies,  not exceeding the costs incurred by such provider. However, the reasonable charge for paper copies shall not exceed  seventy-five  cents per  page. A qualified person shall not be denied access to the clinical record solely because of inability to pay.  No  charge  may  be  imposed under  this  section  for  providing,  releasing, or delivering clinical records or copies of clinical records where requested for the purpose of supporting an application, claim or appeal for any government benefit or program, provided that, where a provider maintains clinical  records  in electronic form, it shall provide the copy in either electronic or paper form,  as  required  by  the  government  benefit  or program, or at the patient's request.   7. A facility may place reasonable limitations on the time, place, and frequency of any inspection of clinical records.   8. A treating practitioner may request the opportunity to  review  the patient   information   with   the   qualified  person  requesting  such information, but such review shall not be a prerequisite for  furnishing the record.   9. A facility may make available for inspection either the original or a copy of clinical records.  (c)  Limitations  on access. 1. Upon receipt of a written request by a qualified person to inspect or copy the clinical record maintained by  a facility,  the  facility  shall  inform the treating practitioner of the request. The treating practitioner may review the information requested. Unless the treating practitioner determines pursuant to paragraph  three of this subdivision that the requested review of the clinical record can reasonably be expected to cause substantial and identifiable harm to the patient  or client or others which would outweigh the qualified person's right of access to the record, review of such record shall be  permitted or copies provided.   2.  A  patient or client over the age of twelve may be notified of any request by a qualified person  to  review  his/her  record  and  if  the patient  or  client objects to disclosure, the facility, in consultation with the treating practitioner may deny the request.   3.  If,  after  consideration  of  all   the   attendant   facts   and circumstances, the practitioner or treating practitioner determines that the  requested  review  of  all  or  part  of  the  clinical  record can reasonably be expected to cause substantial and identifiable harm to the patient or client or others, or  would  have  a  detrimental  effect  as defined in subdivision (b) of this section, the facility may accordingly deny  access  to  all  or a part of the record and may grant access to a prepared summary of the record. In determining whether  the  review  can reasonably be expected to cause substantial and identifiable harm to the patient  or client or others which would outweigh the qualified person's right of access to the record or whether review of the record would have a detrimental effect as defined in subdivision (b) of this section,  the practitioner  or treating practitioner may consider, among other things, the following: (i) the need for, and the fact of,  continuing  care  and treatment;  (ii)  the  extent  to which the knowledge of the information contained in the clinical record may be harmful to the health or  safety of  the  patient  or  client  or  others;  (iii) the extent to which the clinical record contains sensitive information disclosed  in  confidence to  the practitioner or treating practitioner by family members, friends and other persons; (iv) the extent to which the clinical record contains sensitive information disclosed to  the  practitioner  or  the  treating practitioner  by  the  patient or client which would be injurious to the  patient's or client's relationships with other persons except where  the patient  or  client  is  requesting  information  concerning  himself or herself; and (v) in the case of a minor  making  a  request  for  access pursuant  to paragraph one of subdivision (b), the age of the patient or client.   4. In the event of a denial of access, the qualified person  shall  be informed  by  the facility of such denial, and of the qualified person's right to obtain, without cost, a review of the denial by the appropriate clinical  record  access  review  committee.  If  the  qualified  person requests  such review, the facility shall, within ten days of receipt of such request, transmit the record to the  chairman  of  the  appropriate committee with a statement setting forth the specific reasons access was denied.  After  an  in camera review of the materials provided and after providing  all  parties  a  reasonable  opportunity  to  be  heard,  the committee  shall  promptly  make  a  determination whether the requested reviews of the record can reasonably be expected  to  cause  substantial and identifiable harm to the patient or client or others which outweighs the  qualified  person's  right  of  access  to  the  record pursuant to paragraph three of this subdivision  or  whether  the  requested  review would  have  a  detrimental effect as defined in subdivision (b) of this section, and shall accordingly determine whether access to all  or  part of  such  record  shall  be  granted.  In  the  event that the committee determines that the request for access shall be granted in whole  or  in part,  the  committee  shall  notify  all parties and the facility shall grant access pursuant to such determination.   5. In the event that  access  is  denied  in  whole  or  in  part  the committee  shall notify the qualified person of his or her right to seek judicial  review  of  the  facility's  determination  pursuant  to  this section.  Within  thirty days of receiving notification of the decision, the qualified person may commence, upon notice, a special proceeding  in supreme  court  for  a judgment requiring the provider to make available the record for inspection or copying. The court  upon  such  application and  after  an in camera review of the materials provided, including the determination and record of  the  committee,  and  after  providing  all parties an opportunity to be heard, shall determine whether there exists a  reasonable  basis  for  the  denial  of  access. The relief available pursuant to this section shall be limited to a  judgment  requiring  the facility  to make available to the qualified person the requested record for inspection or copying.  (d) Clinical records access review  committees.  The  commissioner  of mental  health,  the  commissioner of developmental disabilities and the commissioner of alcoholism and substance abuse  services  shall  appoint clinical  record  access review committees to hear appeals of the denial of access to patient or client records as provided in paragraph four  of subdivision  (c)  of  this  section. Members of such committees shall be appointed by the respective commissioners. Such clinical  record  access review committees shall consist of no less than three nor more than five persons.  The  commissioners  shall  promulgate  rules  and  regulations necessary to effectuate the provisions of this subdivision.  (f) Applicability of federal law. Whenever federal law  or  applicable federal  regulations  restrict,  or  as  a  condition for the receipt of federal aid require, that the release of clinical records or information be more restrictive than is provided under this section, the  provisions of federal law or federal regulation shall be controlling.  (g)  Challenges  to  accuracy.  A  qualified  person may challenge the accuracy of information  maintained  in  the  clinical  record  and  may require  that  a  brief written statement prepared by him/her concerning the challenged information be inserted into the  clinical  record.  This  statement  shall  become  a  permanent  part  of the record and shall be released whenever  the  clinical  record  at  issue  is  released.  This subdivision shall apply only to factual statements and shall not include a  provider's  observations,  inferences  or conclusions. A facility may place  reasonable  restrictions  on  the  time  and  frequency  of   any challenges to accuracy.  (h) Waivers void. Any agreement by an individual to waive any right to inspect,  copy or seek correction of the clinical record as provided for in this section shall be deemed to be void as against public policy  and wholly unenforceable.  (i)  Disclosure.  Nothing  contained  in  this section shall restrict, expand or in any way limit the disclosure of any information pursuant to articles twenty-three, thirty-one and forty-five of the  civil  practice law and rules or section six hundred seventy-seven of the county law.  (j)  Proceedings.  No proceeding shall be brought or penalty assessed, except as provided for in this section, against  a  facility,  which  in good faith, denies access to a clinical record.  (k)  Immunity  from  liability.  No  facility,  practitioner, treating practitioner, mental health  practitioner  or  clinical  records  access review  committee  member  shall be subjected to civil liability arising solely from granting or providing  access  to  any  clinical  record  in accordance with this section.