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, 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.    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  mentally  retarded  or  developmentally disabled person  appointed pursuant to  article  seventeen-A  of  the  surrogate's  court  procedure  act,  or  committee  for an incompetent appointed pursuant to  article seventy-eight of 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  or adult child 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  thefacility   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 article seventy-eight of this chapter or a guardian of the person  of  a   mentally  retarded  or  developmentally  disabled  person  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 or adult child of a patient  or client, a facility shall provide an opportunity, within ten days, for  such  parent,  spouse  or  adult  child  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 or  adult child 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 or adult child 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 or adult child 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 or  adult  child.  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 copyof 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.    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'sright 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.