2023 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, 2027
* (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, 2027
(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, 2027
* (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, 2027
(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.