Relates to requirements for the transfer of patient medical records in certain circumstances

Summary of provisions

Section one amends the Education Law section 6530(4) to include within the definition of professional misconduct the failure to provide access to patient information in accordance with the standards set forth in Public Health Law section 17. Additionally, the reference to Public Health Law section 18 is clarified.

Section two of the public health law is amended by adding a new section 18-b.

Subsection one defines the terms "cease to do business in this", "failure to provide access to medical information or medical records", healthcare provider", "healthcare facility, "healthcare practitioner", "patient information" and "patient medical records".Subsection two provides that when a health care Provider, facility, or practitioner that has possession of patient information has decided to cease to do business or practice in this state, the health care provider, facility, or practitioner shall notify the Commissioner of the Department of Health of its intent to cease to do business or practice. Such notification shall be made at least 60 days before the cessation and include a plan for the transfer of the patient records to the patient or another health care provider, facility, or practitioner. The Commissioner shall prescribe the form for the plan, requirements for the transfer and notification requirements. The prescribed requirements must include a maximum time period for the transfer and provisions for the transfer of the patient's records to the patient when such transfer is requested. The sixty day notification requirement may be waived if the decision to close is as a result of illness, injury or death.

Subsection three provides that within 10 days of being notified by a provider of their intent to cease doing business in this state the Commissioner shall prescribe the requirements for transfer of patient medical information and patient medical records, the requirements shall include a maximum period of time not to exceed sixty days from the day the health care provider, health care facility or health care practitioner ceases to do business in the State for the completion of

such transfer to occur. The plan shall also include notification of patients of the closure of business in the State and the patient's right to request their patient information or medical records be sent to the healthcare provider, facility or practitioner of their choice or returned to the patient. If the decision to cease to do business in this state was made as a result of illness, injury or death the Commissioner shall work with the healthcare provider or where appropriate his or her representative to ensure hat the records are transferred within one hundred and sixty days of the Commissioner being notified of the decision to cease to do business or practice in this state. shall have an additional 60 days to with this provision.

Subsection four provides that nothing in this section shall authorize the disclosure of patient information or medical records that are prohibited from disclosure pursuant to laws.

Subsection five provides that due to the failure of any health care provider, facility or practitioner to adhere to the terms of the plan approved by the commissioner and such failure has caused or may cause a threat to the health of an individual who is a subject of such records because six months has passed since a prior laboratory test, the results of which are contained in the patient's information or medical records, the commissioner may order new tests to be performed by a practitioner chosen or approved by the commissioner. The Commissioner may issue payments for such tests out of any fund under the purview of the department and may assess any such healthcare provider, facility or practitioner who failed to release the patient's information or medical records in accordance with the Commissioner approved plan for the costs of the replacement laboratory tests. This subsection defines the term "laboratory tests" for the purpose of this section.

Subsection six provides that if the commissioner determines that the healthcare provider, facility, or practitioner willfully and without good cause or extenuating circumstances failed to adhere to the plan as approved by the commissioner for the transfer of patient information or medical records the commissioner may assess a penalty upon the healthcare provider, facility, or practitioner in an amount that does not exceed $500 for each failure. The provider, facility, or practitioner may appeal the assessment to the medical record access review committees that is designated by the commissioner.

Subsection seven provides that this section shall not affect any rights afforded pursuant to section 17 or 18 of this title, as section 18 is added by chapter 497 of the laws of 1986.

Subsection eight provides, that any assessment made under this section is in addition to any other assessment or penalty that is authorized by law.

Subsection nine provides that nothing in this section shall extend the period of time that a health care provider is required to retain a patient's medical information and medical records.

Section 3 provides that this act shall take effect immediately.

Justification

The bill closes a loophole to provide for continuous custody of medical records. When a patient visits his or her doctor, the patient is the consumer of the doctor's services and when such a doctor ceases to continue doing business in New York, his or her patients have a reasonable expectation the information and medical records that the doctor has compiled over the course of taking care of the patient will be available to the patient or be transferred in accordance with the patient's wishes. We have unfortunately seen situations in which a provider determines to cease operations and fails to either provide for appropriate transfer of records or to give the records to patients who have asked for them. Additionally, there is no provision in law to allow for new tests in a situation where a patient's records that contain test results relevant to the patient's health care situation are available because they were either not timely or properly transferred.

Numerous other States, including California, Massachusetts, New Jersey, Pennsylvania, and Wisconsin statutorily provide for the transfer and/or preservation of patient medical records in situations where a healthcare provider, facility, or practitioner ceases operations. The majority of the remaining States have administratively prescribed rules for the transfer and/or preservation of medical records in these situations. To protect the health and welfare of New Yorkers, New York should join the States that provide protection to patient medical records by statutorily requiring their proper transfer.

Legislative history

2013: S. 4174A - Passed Senate; Referred to Assembly Health 2011-2: S.2215 - Referred to Higher Education both years 2009-10: S.2188 - Referred to Higher Education both years 2008: S.6638 - Referred to Higher Education

Fiscal implications

It is not anticipated that this legislation will have any significant fiscal impact on the State

Effective date

This act shall take effect immediately.