2006 New York Code - 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  of  mental  retardation  and  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 persons with mental
  illness, mental  retardation  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, 2010
    * (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,  at  hospitals
  licensed  by  the office of mental health and at general hospitals shall
  not be required as part of any such reports.
    * NB Effective June 30, 2010
    (c) Such  information  about  patients  or  clients  reported  to  the
  offices,  including  the  identification  of  patients  or  clients, and
  clinical records or clinical information tending to identify patients or
  clients, 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 commission on quality of care for the mentally disabled  and
  any  person  or agency under contract with the commission which provides
  protection and advocacy services pursuant to the  authorization  of  the
  commission  to administer the protection and advocacy system as provided
  for by federal law.
    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 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.
    10.  to a correctional facility, when the chief administrative officer
  has requested such information with respect to a named  inmate  of  such
  correctional  facility  as defined by subdivision three of section forty
  of the correction law or to the division of parole,  when  the  division
  has  requested  such  information  with  respect  to, a person under its
  jurisdiction or an inmate of a state correctional  facility,  when  such
  inmate  is  within  two  weeks  of  release from such institution to the
  jurisdiction of the division of parole. 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 correctional services staff in need of
  such information for the purpose of making a determination regarding  an
  inmate's  health  care,  security,  safety  or ability to participate in
  programs.  In  the  event  an  inmate  is   transferred,   the   sending
  correctional facility shall forward, upon request, such summaries to the
  chief  administrative  officer of any correctional facility to which the
  inmate is subsequently incarcerated. The office of mental health and the
  office  of  mental  retardation  and  developmental   disabilities,   in
  consultation  with  the  commission  of  correction  and the division of
  parole,  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 designee, provided that such director or his or  her
  designee  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.
    13.  to  the  state division of criminal justice services for the sole
  purposes of providing, facilitating, evaluating or  auditing  access  by
  the  commissioner  of  mental  health  to  criminal  history information
  pursuant to subdivision (j) of section 7.09 of this chapter.
    * (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 or
  unified 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. 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, 2010
    * (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  or unified services plan, as
  defined  in  article  forty-one,  or  pursuant  to  agreement  with  the
  department and (ii) the department or any of its facilities. 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, 2010
    (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) Any disclosure made pursuant to this section shall be  limited  to
  that  information  necessary  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.