Authorizes the release of certain records pertaining to deceased residents of the office for people with developmental disabilities operated or certified facilities to family members.
Ayes (59): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Johnson, Kennedy, Klein, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Storobin, Valesky, Young, Zeldin
Excused (3): Espaillat, Huntley, Krueger
TITLE OF BILL:
An act to amend the mental hygiene law, in relation to authorizing the release of certain records of deceased residents of OPWDD operated or certified facilities to family members upon written request
PURPOSE OF THE BILL:
This bill would amend the Mental Hygiene Law (MHL) for the commissioner to promulgate regulations to cover the release of certain records of a deceased residents of facilities certified or operated by the Office of People with Developmental Disabilities (OPWDD).
SUMMARY OF PROVISIONS:
Section 1 of the bill would add a new subdivision (f) to MHL § 13.09 and reletter subdivision (f) to subdivision (h) to allow the Commissioner of OPWDD to promulgate regulations that would provide for the release of certain records of deceased residents of OPWDD certified or operated facilities to a family member other than a qualified person as defined by MHL § 33.16
Section 2 of the bill would amend MHL § 33.13(c) by adding a new paragraph (15) upon a written request by the physician of a family member when there is a demonstrable medical need for such information as it is relevant to the family member's own health care. The Commissioner shall promulgate regulations to define family member for purpose of this section.
Section 3 of the bill provides that section 1 of the bill would take effect on the one hundred eightieth day after it shall become law and section 2 of the bill would take effect immediately.
The MHL does not allow for release of information about a deceased individual to a family member who is not a "qualified person" pursuant to MHL §§ 33.13, 33.16. Only certain qualified family members, who are parents, a spouse or an adult child of the individual, may obtain "information.
In accordance with a national movement and laws in other states to give dignity to institutionalized persons with-developmental disabilities who, upon their death, were usually assigned only a number in a state facility cemetery or otherwise had an unmarked grave, Chapter 520 of the Laws of 2008 was enacted to provide for release of very limited information about a deceased resident of an OPWDD facility (i.e. names and birth/death dates) for the sole purpose of inscribing a cemetery marker.
PRIOR LEGISLATIVE HISTORY: 2011: S.3168A Passed the Senate unanimously.
STATEMENT IN SUPPORT:
Currently, the MHL allows for the release of records of deceased residents of OPWDD facilities only to those "qualified" family members specified in MHL § 13.09, namely, a parent, a spouse, or an adult child of such individual. This bill would authorize the commissioner of OPWDD to develop regulations in order to provide certain information to other family members. The Commissioner would also define family member through regulations. Family members may learn of the existence of their relative only after the relative's death, and may have no ability to ascertain whether their relative even existed. The types of information to be released could include the person's name, dates of birth, death and admission, discharge/release, cause of death, diagnosis, treatment, services provided, employment and residential history. Where the commissioner has determined that the release of information is appropriate pursuant to the standards set forth in regulation, this bill would allow for release unless the individual or a qualified family member had objected during his or her lifetime and such objection was documented in the individual's services plan.
The bill would also amend MHL § 33.13 by adding a new paragraph 15 to provide for the release of records to a physician of a family member, who is not a qualified person, when the family member has a demonstrable medical need for such information. This provision would bring state law into compliance with the federal Health Insurance portability and Accountability Act (HIPAA) which allows for release of clinical information to a family member for this specific purpose.
BUDGET IMPLICATIONS: This proposal has no fiscal implications.
EFFECTIVE DATE: Section 1 of the bill would take effect 180 days after enactment and Section 2 would take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 3168--A 2011-2012 Regular Sessions IN SENATE February 10, 2011 ___________Introduced by Sen. HUNTLEY -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Develop- mental Disabilities -- recommitted to the Committee on Mental Health and Developmental Disabilities in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the mental hygiene law, in relation to authorizing the release of certain records of deceased residents of OPWDD operated or certified facilities to family members upon written request THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (f) of section 13.09 of the mental hygiene law is relettered subdivision (h) and a new subdivision (f) is added to read as follows: (F) NOTWITHSTANDING THE PROVISIONS OF SECTIONS 33.13 AND 33.16 OF THIS CHAPTER, THE COMMISSIONER SHALL PROMULGATE REGULATIONS TO COVER THE RELEASE OF CERTAIN RECORDS PERTAINING TO A DECEASED INDIVIDUAL WHO RESIDED IN A FACILITY OPERATED OR CERTIFIED BY THE OFFICE. THE REGU- LATIONS SHALL SPECIFY WHICH INFORMATION SHALL BE RELEASED AND SHALL INCLUDE SUCH RECORDS AS THE INDIVIDUAL'S NAME; DATES OF ADMISSION, DISCHARGE, BIRTH AND DEATH; CAUSE OF DEATH; TREATMENT, AND SERVICES PROVIDED; EMPLOYMENT; AND RESIDENTIAL HISTORY TO FAMILY MEMBERS, UNLESS THE DECEASED INDIVIDUAL, OR IN THE CASE OF AN INDIVIDUAL WHO LACKED CAPACITY TO CONSENT TO THE RELEASE OF HIS OR HER RECORDS, A QUALIFIED PERSON AS DEFINED IN PARAGRAPH SIX OF SUBDIVISION (A) OF SECTION 33.16 OF THIS CHAPTER, HAD PREVIOUSLY OBJECTED TO THE RELEASE OF HIS OR HER RECORDS AND SUCH OBJECTION WAS IN WRITING OR OTHERWISE DOCUMENTED IN THE INDIVIDUAL'S SERVICES PLAN AND HAD NOT BEEN WITHDRAWN, THE COMMISSIONER SHALL NOT AUTHORIZE THE RELEASE OF SUCH RECORDS. S 2. Subdivision (c) of section 33.13 of the mental hygiene law is amended by adding a new paragraph 15 to read as follows:EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08788-06-2 S. 3168--A 2
15. UPON WRITTEN REQUEST BY THE PHYSICIAN OF A FAMILY MEMBER OF AN INDIVIDUAL, WHO HAS A DEMONSTRABLE MEDICAL NEED FOR SUCH INFORMATION AS IT IS RELEVANT TO THE FAMILY MEMBER'S OWN HEALTH CARE. THE COMMISSIONER SHALL PROMULGATE REGULATIONS TO DEFINE FAMILY MEMBER FOR PURPOSES OF THIS SECTION. S 3. This act shall take effect immediately; provided that section one of this act shall take effect on the one hundred eightieth day after it shall have become a law.