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, 2015    * (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, 2015    (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 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.(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  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  four  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  for people with 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:    (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 mental retardation  and 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.    * (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 providingservices 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. 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, 2015    * (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. 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, 2015    (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.