N.Y. Mental Hygiene Law § 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.