STATE OF NEW YORK
       ________________________________________________________________________
 
                                         2949
 
                              2001-2002 Regular Sessions
 
                    IN SENATE
 
                                   February 27, 2001
                                      ___________
 
       Introduced  by  Sen.  HANNON -- read twice and ordered printed, and when
         printed to be committed to the Committee on Health
 
       AN ACT to amend the public health law, the mental hygiene  law  and  the
         civil  practice law and rules, in relation to access to patient infor-
         mation, medical records and clinical records
 
         The People of the State of New York, represented in Senate and  Assem-
       bly, do enact as follows:
 
    1    Section  1. Paragraphs (b), (d) and (g) of subdivision 1 of section 18
    2  of the public health law, paragraphs (b) and (d) as added by chapter 497
    3  of the laws of 1986 and paragraph (g) as amended by chapter 576  of  the
    4  laws  of  1998,  are amended and a new paragraph (j) is added to read as
    5  follows:
    6    (b) "Health care provider" or "provider" means a ["health care facili-
    7  ty" or a "health care practitioner"  as  defined  by  this  subdivision]
    8  health care facility or health care practitioner, or an agent thereof.
    9    (d)  "Health  care  practitioner"  or  "practitioner"  means  a person
   10  licensed under article one hundred thirty-one, one hundred thirty-one-B,
   11  one hundred thirty-two, one hundred thirty-three,  one  hundred  thirty-
   12  six,  one  hundred  thirty-seven,  one  hundred thirty-nine, one hundred
   13  forty, one hundred  forty-one,  one  hundred  forty-three,  one  hundred
   14  forty-four, one hundred fifty-three, one hundred fifty-four, one hundred
   15  fifty-six  or  one  hundred fifty-nine of the education law [or a person
   16  certified under section twenty-five hundred sixty of this chapter].
   17    (g) "Qualified person" means any properly  identified  subject,  or  a
   18  guardian  appointed pursuant to article eighty-one of the mental hygiene
   19  law, or a parent of an infant, or a  guardian  of  an  infant  appointed
   20  pursuant to article seventeen of the surrogate's court procedure act, or
   21  other  legally  appointed  guardian  of an infant who may be entitled to
   22  request access to a clinical record pursuant to paragraph (c) of  subdi-
   23  vision  two of this section, or an attorney representing [or], acting on
   24  behalf of or authorized by the subject or the subject's estate.
   25    (j) "Agent" means a contractor, subcontractor, affiliate or subsidiary
   26  of a health care provider which by contract or otherwise receives, main-
 
        EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08357-01-1

       S. 2949                             2
 
    1  tains, copies or transmits patient information or  medical  records  for
    2  the health care provider.
    3    § 2. Paragraph (e) of subdivision 2 of section 18 of the public health
    4  law,  as  amended by chapter 576 of the laws of 1998, is amended to read
    5  as follows:
    6    (e) (1)  The  provider  may  impose  a  [reasonable]  charge  for  all
    7  inspections  and  copies[,  not  exceeding  the  costs  incurred by such
    8  provider] of patient information, provided,  however,  that  a  provider
    9  [may]  shall  not impose a charge for copying an original mammogram when
   10  the original has been furnished to any qualified  person  and  provided,
   11  further,  that  any charge for furnishing an original mammogram pursuant
   12  to this section shall not exceed the documented costs associated  there-
   13  with.  [However,  the  reasonable] The charge for paper copies shall not
   14  exceed seventy-five cents per page for  copies  of  patient  information
   15  requested  by a patient to facilitate the patient's ongoing health care.
   16  For copies requested by qualified persons for  purposes  other  than  to
   17  facilitate  the patient's ongoing health care, the provider may impose a
   18  fee not to exceed fifteen dollars for search  and  retrieval,  plus  one
   19  dollar  per  page for paper copies or two dollars per page for microfilm
   20  or microfiche copies; plus postage or shipping and sales tax, if  appli-
   21  cable.  The fee limitations in the preceding sentence shall not apply to
   22  copies of imaging for which the charge shall not exceed the actual  cost
   23  of the search, retrieval and reproduction; provided, however, that in no
   24  event  shall the provider impose a charge for copying an original mammo-
   25  gram when the original has been furnished to any qualified  person.  For
   26  purposes  of  this  section,  the term "imaging" shall mean any x-ray or
   27  image produced by any of the following services, including  conventional
   28  x-ray or radiograph, fluoroscopy, digital radiography, computed tomogra-
   29  phy, magnetic resonance imaging, nuclear imaging, ultrasonography, angi-
   30  ography  or  any  other  similar  medical imaging service.   A qualified
   31  person shall not be denied access to patient information solely  because
   32  of inability to pay.
   33    (2)  On  and  after  January first, two thousand two, the commissioner
   34  shall, in consultation with the commissioner of mental health, by  regu-
   35  lation annually adjust the amounts set forth in subparagraph one of this
   36  paragraph  based  on the most recent changes in the consumer price index
   37  reported annually by the Bureau of Labor Statistics in the United States
   38  Department of Labor.
   39    § 3. Paragraph 3 of subdivision (a) of section  33.16  of  the  mental
   40  hygiene  law,  as amended by chapter 558 of the laws of 1999, is amended
   41  and a new paragraph 8 is added to read as follows:
   42    3. "Facility" means a facility as defined  in  section  1.03  of  this
   43  chapter,  a program requiring approval for operation pursuant to article
   44  thirty-two  of  this  chapter  or  institutions  offering  training   in
   45  psychotherapy,  psychoanalysis  and  related areas chartered pursuant to
   46  section two hundred sixteen of the education law, or an agent thereof.
   47    8. "Agent" means a contractor, subcontractor, affiliate or  subsidiary
   48  of  a facility who by contract or otherwise, receives, maintains, copies
   49  or transmits clinical records for the facility.
   50    § 4. Paragraph 6 of subdivision (b) of section  33.16  of  the  mental
   51  hygiene law, as amended by chapter 165 of the laws of 1991 and as renum-
   52  bered by chapter 233 of the laws of 1991, is amended to read as follows:
   53    6.  (A)  The  facility  may  impose  a  [reasonable]  charge  for  all
   54  inspections and copies[,  not  exceeding  the  costs  incurred  by  such
   55  provider] of clinical records.  [However, the reasonable] The charge for
   56  paper  copies shall not exceed seventy-five cents per page for copies of

       S. 2949                             3
 
    1  clinical records requested by a  patient  to  facilitate  the  patient's
    2  ongoing  health  care.  For  copies  requested  by qualified persons for
    3  purposes other than to facilitate the patient's ongoing health care, the
    4  facility or its agent may impose a fee not to exceed fifteen dollars for
    5  search  and  retrieval, plus one dollar per page for paper copies or two
    6  dollars per page for microfilm or microfiche  copies;  plus  postage  or
    7  shipping  and  sales  tax,  if  applicable.  The  fee limitations in the
    8  preceding sentence shall not apply to copies of imaging  for  which  the
    9  charge  shall  not  exceed  the actual cost of the search, retrieval and
   10  reproduction. For purposes of this section,  the  term  "imaging"  shall
   11  mean  any  x-ray  or  image  produced  by any of the following services,
   12  including conventional x-ray or radiograph, fluoroscopy, digital radiog-
   13  raphy, computed tomography, magnetic resonance imaging, nuclear imaging,
   14  ultrasonography,  angiography  or  any  other  similar  medical  imaging
   15  service.   A qualified person shall not be denied access to the clinical
   16  record solely because of inability to pay.
   17    (B) On and after January first, two  thousand  two,  the  commissioner
   18  shall,  in  consultation  with the commissioner of health, by regulation
   19  annually adjust the amounts set forth in subparagraph (A) of this  para-
   20  graph  based  on  the  most  recent  changes in the consumer price index
   21  reported annually by the Bureau of Labor Statistics in the United States
   22  Department of Labor.
   23    § 5. Subdivision (a) of section 2306 of the  civil  practice  law  and
   24  rules,  as  amended by chapter 4 of the laws of 1986, is amended to read
   25  as follows:
   26    (a) Transcript or reproduction. Where a subpoena duces tecum is served
   27  upon a [hospital] health care provider as defined in  paragraph  (b)  of
   28  subdivision  one  of  section  eighteen  of  the public health law, or a
   29  facility as defined in paragraph three of  subdivision  (a)  of  section
   30  33.16  of  the  mental  hygiene law, or upon a department or bureau of a
   31  municipal corporation or of the state, or an officer thereof,  requiring
   32  the  production  of  records relating to the condition or treatment of a
   33  patient, a transcript or a full-sized legible reproduction, certified as
   34  correct by the health care provider or facility, or by  the  superinten-
   35  dent  or  head  of  the  [hospital,]  department or bureau or his or her
   36  assistant, or the officer, may be produced unless otherwise ordered by a
   37  court.  The charge for such reproduction, which shall be  borne  by  the
   38  party  requesting  the  records,  shall be determined in accordance with
   39  paragraph (e) of subdivision two  of  section  eighteen  of  the  public
   40  health  law, or paragraph six of subdivision (b) of section 33.16 of the
   41  mental hygiene law, whichever is applicable. Such a  subpoena  shall  be
   42  served  at  least three days before the time fixed for the production of
   43  the records unless otherwise ordered by a court.
   44    § 6. Subdivision (c) of section 8001 of the  civil  practice  law  and
   45  rules is amended to read as follows:
   46    (c)  Transcripts  of records. Wherever the preparation of a transcript
   47  of records is required in order to comply with a  subpoena,  the  person
   48  subpoenaed  shall  receive an additional fee of ten cents per folio upon
   49  demand.  The fee for the reproduction of records of patient  information
   50  in  response  to a subpoena issued to a health care provider, as defined
   51  in paragraph (b) of subdivision one of section eighteen  of  the  public
   52  health  law, or a facility, as defined in paragraph three of subdivision
   53  (a) of section 33.16 of the mental hygiene law, shall be  determined  in
   54  accordance with section twenty-three hundred six of this chapter.
   55    §  7.  This act shall take effect 90 days after it shall have become a
   56  law.

 
BILL NUMBER: S2949
 
SPONSOR: HANNON

 
TITLE OF BILL:  An act to amend the public health law, the mental
hygiene law and the civil practice law and rules, in relation to access
to patient information, medical records and clinical records
 
 
SUMMARY OF PROVISIONS:  Section 1 adds a new paragraph (j) to subdivi-
sion one of section eighteen of the public health law. Paragraph (j)
defines the term "agent" to mean a contractor, subcontractor, affiliate
or subsidiary of a health care provider, which by contract, or otherwise
receives, maintains, copies, or transmits patient information or medical
records for the health care provider.
 
Section 2 includes the agent of a health care provider in the definition
of the terms "health care provider" in section eighteen of the public
health law.
 
Section 3 includes the agent of a health care provider in the definition
of the term "health care provider" in section eighteen of the public
health law.
 
Section 4 amends the definition of the term "health care practitioner"
in section eighteen of the public health law to include pharmacists.
 
Section 5 and 8 amend section 18 of the public health law and section
33.16 of the mental hygiene law, respectively, to establish appropriate
rates of payment for the search, retrieval and copying of patient infor-
mation and medical records. Under the amended subdivisions, providers
and facilities may not charge more than the current rate of seventy-five
cents per page for copies of patient information or records requested by
a patient (or representative of the patient) for use in facilitating the
patient's ongoing health care. However, for copies requested by other
parties or for other purposes, providers and facilities may charge
fifteen dollars for search and retrieval, one dollar per page for paper
copies and two dollars per page for microfilm and microfiche copies. For
x-rays, providers may charge no more than the actual cost of search,
retrieval and copying. In addition, beginning in 2002, the commissioner
of health in consultation with the commissioner of mental health, shall
adjust annually the amounts set forth in these sections based on the
most recent changes in the consumer price index as reported by the
Bureau of Labor Statistics in the United States Department of Labor.
 
Section 6 adds a new paragraph (8) to subdivision (a) of section 33.16
of the mental hygiene law to define the term "agent" as a contractor,
subcontractor, affiliate or subsidiary of a facility who receives, main-
tains, copies or transmits clinical records for the facility.
 
Section 7 amends the definition of "facility" to include agents of
facilities.
 
Section 9 and 10 amends sections 2306 and 8001 of the civil practice law
and rules, respectively, to establish that when records are subpoenaed,
the cost of reproducing the records shall be borne by the party request-
ing them. The cost of the retrieval and reproduction shall be determined
by the appropriate sections of the public health law and/or the mental
hygiene law.
 
 
Section 11 establishes the bill's effective date as 90 days after it
becomes law.
 
 
EXISTING LAW:  The bill would amend the fees that can be charged for
making available certain patient information.
 
 
JUSTIFICATION:  Each day, hospitals, physicians and other health care
providers receive numerous requests for copies of patient information
and medical records. Providing copies of such records is a costly and
time-consuming effort. There can be as many as thirty or more steps in
the proper handling of a medical records request. Following review of
the request and authentication of the authorization, the provider -- or
the provider's agent -- must identify and locate the documents to satis-
fy the request; disassemble the specific record requested from other
records; copy the record; make notations in the file that the request
has been satisfied; log vital information into a correspondence log;
reassemble the file; and review the medical records for completeness.
All of these steps must be performed for each request regardless of the
number of pages copied. Moreover, because the sensitive nature of the
patient information, the provider or its agent must use employees that
are carefully trained in both state and federal law and understand the
obligation to maintain patient confidentiality.
 
In 1991, the Legislature established a fee schedule for the cost of
copying and providing such records. However, the fee schedule has not
been increased in almost nine years. Currently, New York's reimbursement
rates are among the lowest in the United States and do not reflect the‘
actual costs of search, retrieval and copying. In addition, in the last
several years, federal and state initiatives — particularly the Health
Insurance Portability and Accountability Act ("HIPPAA) -- have imposed
new requirements on health care providers to insure the confidentiality
of patient specific information.
 
The bill would allow providers to institute a search and retrieval fee
and slightly increase fees for paper and microfilm copies, thereby
bringing the state's reimbursement rate in line with the actual costs of
retrieving and reproducing patient information and medical records.
However, a patient (or a representative of a patient) who requests
information or records to facilitate his or her health care would not be
subject to increased fees.
 
 
LEGISLATIVE HISTORY:  1996: S.4605 — reported to Senate Health Commit-
tee
 
1998: S.4958A — reported to Senate Rules Committee
 
1999: S.50476A — reported to Senate Health Committee
 
 
FISCAL IMPLICATIONS:  None.
 
 
EFFECTIVE DATE:  90 days after it becomes law.