2023 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.