Authorizes the release of certain records pertaining to deceased residents of the office of mental retardation and developmental disabilities operated or certified facilities to family members.
Ayes (59): Adams, Addabbo, Alesi, Aubertine, Bonacic, Breslin, DeFrancisco, Diaz, Dilan, Duane, Espada, Farley, Flanagan, Fuschillo, Golden, Griffo, Hannon, Hassell-Thomps, Huntley, Johnson C, Johnson O, Klein, Krueger, Kruger, Lanza, Larkin, LaValle, Leibell, Libous, Little, Marcellino, Maziarz, McDonald, Montgomery, Nozzolio, Onorato, Oppenheimer, Padavan, Parker, Peralta, Perkins, Ranzenhofer, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stachowski, Stavisky, Stewart-Cousins, Thompson, Valesky, Volker, Winner, Young
Excused (3): Foley, Morahan, Schneiderman
BILL NUMBER: S3485
TITLE OF BILL :
An act to amend the mental hygiene law, in relation to authorizing the release of certain records of deceased residents of OMRDD operated or certified facilities to family members upon written request
PURPOSE OF THE BILL :
This bill would amend the Mental Hygiene Law (MHL) to authorize the release of certain records of deceased residents of facilities certified or operated by the Office of Mental Retardation and Developmental Disabilities (OMRDD).
SUMMARY OF PROVISIONS :
Section 1 of the bill would add a new subdivision (g) to MHL § 13.09 and reletter subdivision (f) to subdivision (h) to authorize the Commissioner of OMRDD to promulgate regulations that would provide for the release of certain records of deceased residents of OMRDD certified or operated facilities upon written request to a family member other than a qualified person as defined by MHL § 33.16(a)(6) on a case-by-case basis.
Section 2 of the bill would amend MHL § 33.13(c) by adding a new paragraph (15) to authorize the release of records of a deceased resident 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.
Section 3 of the bill provides that section 1 of the bill would take effect 180 days after enactment and section 2 of the bill would take effect immediately upon enactment.
EXISTING LAW :
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 OMRDD facility (i.e. names and birth/death dates) for the sole purpose of inscribing a cemetery marker.
PRIOR LEGISLATIVE HISTORY : This is a new proposal.
STATEMENT IN SUPPORT : Currently, the MHL allows for the release of records of deceased residents of OMRDD 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 OMRDD to develop regulations in order to provide certain information to other family members on a case-by-case basis. 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 family 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 hy 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 ________________________________________________________________________ 3485 2009-2010 Regular Sessions IN SENATE March 20, 2009 ___________Introduced by Sen. HUNTLEY -- (at request of the Office of Mental Retar- dation and Developmental Disabilities) -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Developmental Disabilities AN ACT to amend the mental hygiene law, in relation to authorizing the release of certain records of deceased residents of OMRDD 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, as added by chapter 520 of the laws of 2008, is relettered subdivision (h) and a new subdivision (g) is added to read as follows: (G) NOTWITHSTANDING THE PROVISIONS OF SECTIONS 33.13 AND 33.16 OF THIS CHAPTER, THE COMMISSIONER SHALL PROMULGATE REGULATIONS TO AUTHORIZE, UPON WRITTEN REQUEST AND AS DETERMINED ON A CASE-BY-CASE BASIS, 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 MAY BE RELEASED AND SHALL INCLUDE CONSIDERATION OF SUCH INFORMATION AS THE INDIVIDUAL'S NAME; DATES OF ADMISSION, DISCHARGE, BIRTH AND DEATH; CAUSE OF DEATH; A SUMMA- RY OF THE DIAGNOSIS, TREATMENT, AND SERVICES PROVIDED; EMPLOYMENT; RESI- DENTIAL AND FAMILY HISTORY; AND OTHER IDENTIFYING DATA. THE REGULATIONS SHALL SPECIFY THE CIRCUMSTANCES UNDER WHICH SUCH RECORDS SHALL BE RELEASED AND SHALL INCLUDE CONSIDERATION OF THE NEED OF A FAMILY MEMBER OTHER THAN A QUALIFIED PERSON AS DEFINED IN PARAGRAPH SIX OF SUBDIVISION (A) OF SECTION 33.16 OF THIS CHAPTER TO ACCESS INFORMATION. IN THE EVENT 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 THEEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07420-04-9 S. 3485 2
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: 15. UPON WRITTEN REQUEST TO THE PHYSICIAN OF A FAMILY MEMBER OF A DECEASED INDIVIDUAL WHO HAS A DEMONSTRABLE MEDICAL NEED FOR SUCH INFOR- MATION AS IT IS RELEVANT TO THE FAMILY MEMBER'S OWN HEALTH CARE. S 3. This act shall take effect immediately; provided that section one of this act shall take effect one hundred eighty days after it shall have become a law.