This bill has been amended

Bill S4174B-2013

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

Requires a health care provider or facility which has determined to cease to do business or which is transferring its ownership, at least sixty days prior to such action, notify the commissioner of health of its intent and shall provide a copy of its plan for transfer of patient records to another provider, facility or practitioner; if the determination to cease to do business or practice in this state resulted from illness, injury, or death, the commissioner shall work with the provider or his or her representative to facilitate notification and transfer records within one hundred sixty days after such notification.

Details

Actions

  • May 12, 2014: PRINT NUMBER 4174B
  • May 12, 2014: AMEND AND RECOMMIT TO HIGHER EDUCATION
  • Jan 8, 2014: REFERRED TO HIGHER EDUCATION
  • Jan 8, 2014: returned to senate
  • Jan 8, 2014: died in assembly
  • Jun 21, 2013: referred to health
  • Jun 21, 2013: DELIVERED TO ASSEMBLY
  • Jun 21, 2013: PASSED SENATE
  • Jun 13, 2013: AMENDED ON THIRD READING 4174A
  • Jun 11, 2013: ORDERED TO THIRD READING CAL.1273
  • Jun 11, 2013: COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • May 21, 2013: REPORTED AND COMMITTED TO FINANCE
  • Mar 12, 2013: REFERRED TO HIGHER EDUCATION

Memo

BILL NUMBER:S4174B

TITLE OF BILL: An act to amend the education law and the public health law, in relation to the transfer of patient medical records in certain circumstances

PURPOSE:

This bill establishes requirement for orderly transfer of medical records, if a physician closes an office, this bill makes it clear that failure to comply with law regarding patient access to his or her own records would be in violation of what is generally accepted reasonable expectation, an expectation to control the information about an individual's own health, and in the event a patient is not granted access to their medical records the health commissioner would be empowered to take emergency action to require new tests if the failure to release records timely poses a health threat to individual patients.

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 provider 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 law.

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 4174--B 2013-2014 Regular Sessions IN SENATE March 12, 2013 ___________
Introduced by Sens. GOLDEN, RIVERA -- read twice and ordered printed, and when printed to be committed to the Committee on Higher Education -- reported favorably from said committee and committed to the Commit- tee on Finance -- committee discharged and said bill committed to the Committee on Rules -- ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading -- recom- mitted to the Committee on Higher Education 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 education law and the public health law, in relation to the transfer of patient medical records in certain circumstances THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 40 of section 6530 of the education law, as added by chapter 606 of the laws of 1991, is amended to read as follows: 40. Failing to provide access by qualified persons to patient informa- tion in accordance with the standards set forth in [section] SECTIONS SEVENTEEN AND eighteen of the public health law, SUCH SECTION EIGHTEEN as added by chapter [497] FOUR HUNDRED NINETY-SEVEN of the laws of [1986] NINETEEN HUNDRED EIGHTY-SIX; S 2. The public health law is amended by adding a new section 18-b to read as follows: S 18-B. REQUIREMENT FOR TRANSFER OF INFORMATION. 1. DEFINITIONS. FOR THE PURPOSES OF THIS SECTION THE FOLLOWING TERMS SHALL HAVE THE FOLLOW- ING MEANINGS: (A) "CEASE TO DO BUSINESS IN THIS STATE" SHALL MEAN ANY CASE WHERE A HEALTH CARE PROVIDER WHO HAS ENGAGED IN AN ON-GOING PRACTICE OR BUSINESS WITHIN THIS STATE AS A HEALTH CARE PROVIDER, CEASES TO ENGAGE IN SUCH BUSINESS, PROVIDED HOWEVER, THAT THIS TERM SHALL NOT INCLUDE A HEALTH CARE PRACTITIONER WHOSE PRACTICE IS MERGED, CONSOLIDATED, COMBINED, OR ACQUIRED BY ANOTHER HEALTH CARE PROVIDER AND HE OR SHE CONTINUES TO
PROVIDE SERVICES INCLUDING MEDICAL CARE, DIAGNOSIS OR TREATMENT TO PATIENTS AS AN EMPLOYEE, CONTRACTOR, OR OWNER OF THE MERGED, CONSOL- IDATED, COMBINED, OR ACQUIRING HEALTH CARE PROVIDER. (B) "FAILURE TO PROVIDE ACCESS TO MEDICAL INFORMATION OR MEDICAL RECORDS" SHALL MEAN ANY CIRCUMSTANCE WHERE A HEALTH CARE PROVIDER, HEALTH CARE FACILITY OR HEALTH CARE PRACTITIONER, AS SUCH TERMS ARE DEFINED IN SECTION EIGHTEEN OF THIS TITLE, SUCH SECTION EIGHTEEN AS ADDED BY CHAPTER FOUR HUNDRED NINETY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-SIX, THAT IS PLANNING TO CEASE TO DO BUSINESS IN THE STATE AND FAILS TO ACT IN ACCORDANCE TO THE REQUIREMENTS PRESCRIBED BY THE COMMISSIONER FOR TRANSFER OF PATIENT INFORMATION AS SUCH TERM IS DEFINED IN SUCH SECTION EIGHTEEN OF THIS TITLE OR PATIENT MEDICAL RECORDS AS DESCRIBED IN SECTION SEVENTEEN OF THIS TITLE. (C) "HEALTH CARE PROVIDER," "HEALTH CARE FACILITY," AND "HEALTH CARE PRACTITIONER" SHALL HAVE THE SAME MEANING AS IN SECTION EIGHTEEN OF THIS TITLE, AS ADDED BY CHAPTER FOUR HUNDRED NINETY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-SIX. (D) "PATIENT INFORMATION" SHALL HAVE THE SAME MEANING AS IN SECTION EIGHTEEN OF THIS TITLE, AS ADDED BY CHAPTER FOUR HUNDRED NINETY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-SIX. (E) "PATIENT MEDICAL RECORDS" SHALL MEAN THE RECORDS THAT, UPON WRIT- TEN REQUEST BY A COMPETENT PATIENT, PARENT OR GUARDIAN OF AN INFANT, A GUARDIAN APPOINTED PURSUANT TO ARTICLE EIGHTY-ONE OF THE MENTAL HYGIENE LAW, OR CONSERVATOR OF A CONSERVATEE, ARE REQUIRED TO BE PROVIDED TO A PHYSICIAN OR HOSPITAL PURSUANT TO SECTION SEVENTEEN OF THIS TITLE. 2. A HEALTH CARE PROVIDER WHICH HAS IN ITS POSSESSION PATIENT INFORMA- TION OR PATIENT MEDICAL RECORDS AND WHICH HAS DETERMINED TO PERMANENTLY CEASE TO DO BUSINESS OR PRACTICE IN THIS STATE SHALL, AT LEAST SIXTY DAYS PRIOR TO SUCH ACTION, NOTIFY THE COMMISSIONER OF ITS INTENT TO CEASE OPERATIONS IN THIS STATE, IN THE FORM AND MANNER PRESCRIBED BY THE COMMISSIONER, AND SHALL PROVIDE A COPY OF ITS PLAN, IN THE FORM AND MANNER PRESCRIBED BY THE COMMISSIONER, FOR TRANSFER OF PATIENT INFORMA- TION OR PATIENT MEDICAL RECORDS TO ANOTHER PROVIDER, FACILITY, PRACTI- TIONER OR PATIENT, AS REQUESTED BY THE PATIENT OR REQUIRED PURSUANT TO LAW. THE SIXTY DAY REQUIREMENT FOR NOTIFICATION TO THE COMMISSIONER SHALL BE WAIVED IF A HEALTH CARE PROVIDER DETERMINES TO CEASE TO DO BUSINESS OR PRACTICE IN THIS STATE AS A RESULT OF ILLNESS, INJURY OR DEATH. 3. WITHIN TEN DAYS OF BEING NOTIFIED BY A HEALTH CARE PROVIDER OF THE PROVIDER'S DETERMINATION TO CEASE TO DO BUSINESS OR PRACTICE IN THIS STATE, THE COMMISSIONER SHALL PRESCRIBE THE REQUIREMENTS FOR TRANSFER OF PATIENT INFORMATION AND PATIENT MEDICAL RECORDS, PROVIDED THAT SUCH REQUIREMENTS SHALL INCLUDE (A) A MAXIMUM PERIOD OF TIME, NOT TO EXCEED SIXTY DAYS FROM THE DATE THAT THE HEALTH CARE PROVIDER, HEALTH CARE FACILITY OR HEALTH CARE PRACTITIONER CEASES TO PRACTICE TO DO BUSINESS IN THIS STATE, FOR THE COMPLETION OF THE TRANSFER, AND (B) A PLAN FOR NOTIFYING PATIENTS OF THE CLOSURE OR CESSATION OF DOING BUSINESS IN NEW YORK AND INFORMING SUCH PATIENTS OF THEIR RIGHT TO REQUEST THEIR PATIENT INFORMATION OR PATIENT MEDICAL RECORDS BE SENT TO THE HEALTH CARE PROVIDER, HEALTH CARE FACILITY OR HEALTH CARE PRACTITIONER OF HIS OR HER CHOICE OR RETURNED TO THEMSELVES. IF THE DETERMINATION TO CEASE TO DO BUSINESS OR PRACTICE IN THIS STATE WAS MADE AS A RESULT OF ILLNESS, INJURY OR DEATH THE HEALTH CARE PROVIDER SHALL HAVE AN ADDITIONAL SIXTY DAYS TO COMPLY WITH THE PROVISIONS OF THIS SECTION.
4. NOTHING IN THIS SECTION SHALL AUTHORIZE THE DISCLOSURE OF PATIENT INFORMATION OR PATIENT MEDICAL RECORDS THAT ARE PROHIBITED FROM DISCLO- SURE PURSUANT TO LAW. 5. IF THE COMMISSIONER SHALL DETERMINE THAT THE FAILURE OF ANY HEALTH CARE PROVIDER, HEALTH CARE FACILITY, OR HEALTH CARE PRACTITIONER TO ADHERE TO THE TERMS OF THE PLAN THAT HAS BEEN APPROVED BY THE COMMIS- SIONER FOR THE TRANSFER OF PATIENT INFORMATION OR PATIENT MEDICAL RECORDS AND SUCH FAILURE SHALL HAVE CAUSED OR MAY CAUSE A THREAT TO THE HEALTH OF AN INDIVIDUAL PATIENT WHO IS THE SUBJECT OF SUCH INFORMATION OR MEDICAL RECORDS BECAUSE MORE THAN SIX MONTHS HAS ELAPSED SINCE A PRIOR LABORATORY TEST, THE RESULTS OF WHICH ARE CONTAINED IN THE PATIENT'S INFORMATION OR MEDICAL RECORDS, THE COMMISSIONER MAY ORDER NEW LABORATORY TESTS TO BE PERFORMED BY A PRACTITIONER CHOSEN OR APPROVED BY THE COMMISSIONER. IN ORDER TO EXPEDITE SUCH LABORATORY TESTS, THE COMMISSIONER MAY ORDER PAYMENT FOR SUCH LABORATORY TESTS FROM ANY ACCOUNT UNDER THE CONTROL OF THE DEPARTMENT, AND SHALL ASSESS ANY SUCH HEALTH CARE PROVIDER, HEALTH CARE FACILITY, OR HEALTH CARE PRACTITIONER WHO FAILED TO RELEASE THE PATIENT'S INFORMATION OR PATIENT'S MEDICAL RECORDS IN ACCORDANCE WITH THE PLAN APPROVED BY THE COMMISSIONER FOR THE EXPENSES ASSOCIATED WITH THE COST OF SUCH LABORATORY TESTS. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "LABORATORY TESTS" SHALL INCLUDE, BUT NOT BE LIMITED TO, TESTS AND EXAMINATIONS ADMINISTERED IN CLINICAL LABORATORIES OR BLOOD BANKS AS THOSE TERMS ARE DEFINED IN SECTION FIVE HUNDRED SEVENTY-ONE OF THIS CHAPTER. 6. IF THE COMMISSIONER SHALL DETERMINE THAT A HEALTH CARE PROVIDER, HEALTH CARE FACILITY OR HEALTH CARE PRACTITIONER HAS WILLFULLY, AND WITHOUT GOOD CAUSE, FAILED TO ADHERE TO THE TERMS OF THE PLAN THAT HAS BEEN APPROVED BY THE COMMISSIONER FOR THE TRANSFER OF PATIENT INFORMA- TION OR PATIENT MEDICAL RECORDS, THE COMMISSIONER MAY ASSESS A PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS FOR EACH OF THE FIRST TWENTY FAILURES AND TWO HUNDRED FIFTY DOLLARS FOR EACH ADDITIONAL FAILURE THEREAFTER BUT ANY PROVIDER, FACILITY OR PRACTITIONER SHALL NOT BE ASSESSED A PENALTY UNDER THIS SUBDIVISION OF MORE THAN THIRTY THOUSAND DOLLARS. AN AGGRIEVED PROVIDER, FACILITY OR PRACTITIONER MAY APPEAL SUCH ASSESSMENT TO THE MEDICAL RECORD ACCESS REVIEW COMMITTEES DESIGNATED BY THE COMMIS- SIONER PURSUANT TO SUBDIVISION FOUR OF SECTION EIGHTEEN OF THIS TITLE, SUCH SECTION AS ADDED BY CHAPTER FOUR HUNDRED NINETY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-SIX. 7. THE PROVISIONS OF THIS SECTION SHALL NOT AFFECT ANY RIGHTS AFFORDED PURSUANT TO SECTION SEVENTEEN OR SECTION EIGHTEEN OF THIS TITLE, SUCH SECTION EIGHTEEN AS ADDED BY CHAPTER FOUR HUNDRED NINETY-SEVEN OF THE LAWS OF NINETEEN HUNDRED EIGHTY-SIX. 8. ANY ASSESSMENT MADE PURSUANT TO THIS SECTION SHALL BE IN ADDITION TO ANY OTHER ASSESSMENT OR PENALTY THAT IS AUTHORIZED BY LAW. 9. NOTHING IN THIS SECTION SHALL AFFECT OR EXTEND THE PERIOD OF TIME THAT A HEALTH CARE PROVIDER IS REQUIRED TO RETAIN A PATIENT'S MEDICAL INFORMATION AND MEDICAL RECORDS. S 3. This act shall take effect immediately.

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