Amending Your Medical Records in New York State
In New York, patients and other qualified individuals have the right to access their medical records. Individuals who find the information in their medical records to be incorrect or inconsistent, have the right to amend or correct the records. Under the HIPAA Privacy Rule (1) individuals can have their providers amend their medical records. Under New York State law, individuals may add a short written statement to the medical record in order to challenge inaccuracies. This guide is for New York State residents who want to learn about amending their medical records.(2)
Under HIPAA: Requesting that the Provider Amend the Record
The Health Insurance Portability and Accountability Act (HIPAA), enacted in 1996, outlines the protection of all individually identifiable health information held or transmitted by a covered entity or it’s business associate, in any form or medium. (3)The HIPAA Privacy Rule only applies to certain health care providers which HIPAA describes as “covered entities.” A “covered entity” is generally any health care provider that transmits health information in electronic form.(4)Covered entities include most doctors, hospitals, and insurance plans.
If an individual has a provider that is a covered entity, she can ask that provider to amend her medical records.(5) The provider may ask that she put the request, and the reason for the request, in writing.(6)The rules about how to make the request vary from provider to provider. The requirements should be explained in the provider’s notice of privacy practices, but it is also always a good idea to ask the provider for the provider’s specific requirements.
Once an individual makes the request, the provider has the right to deny it in whole or in part. The request may be denied if the provider believes that the record in question is accurate and complete as it stands. The provider may also deny the request if the record was created by another provider. In these cases, the current provider may amend the record if the individual can show that the provider who created the medical record is no longer available.(7)
Once a request is made, the provider has 60 days to either accept or deny the request for an amendment.(8) The provider may be granted one 30-day extension, but then must provide the requesting individual with written statement explaining the reason for delay and a date by which the decision will be made.(9) If the request for amendment is denied, the provider must send a timely written notice that contains the reason for the denial, information about how to file a complaint, and information about how to submit a statement of disagreement.(10)
A statement of disagreement is a written statement explaining why the requesting individual thinks the provider was wrong to deny the request. This statement is added to the medical record and will be released along with the medical record, the request to amend, and the denial, in any future disclosure of the medical records. The provider may limit the length of the statement of disagreement, and may also rebut the statement of disagreement.(11) When a provider rebuts the statement of disagreement, it means that the provider submits a statement defending the decision to deny the request. If the provider chooses to rebut the statement of disagreement, the individual must be provided a copy of the rebuttal.(12) If the individual chooses not to submit a statement of disagreement, the request for amendment and the denial of the request for amendment may still be released with the medical records in question in any future disclosure.(13)
The same procedure applies to requesting a provider amend mental health records. However, it is important to note that in some cases a provider may limit access to an individual’s medical records, such as when 1) “A licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to endanger the life or physical safety of the individual or another person;”(14) 2) “The protected health information makes reference to another person (unless such other person is a health care provider) and a licensed health care professional has determined, in the exercise of professional judgment, that the access requested is reasonably likely to cause substantial harm to such other person; or” (15) 3) “The request for access is made by the individual's personal representative and a licensed health care professional has determined, in the exercise of professional judgment, that the provision of access to such personal representative is reasonably likely to cause substantial harm to the individual or another person.” (16)
New York State Law: Adding a Statement to the Medical Record
New York Public Health Law § 18 (17) allows individuals to add a short written statement to their medical records. The statement is added to the medical record in order to challenge specific information contained in the medical record, and it will be released with the record whenever the information being challenged in the statement is disclosed. A provider may place reasonable restrictions on the length and frequency of challenges to accuracy.(18)
The same procedure for challenges to accuracy applies to mental health records, known as “clinical records” in New York’s mental Hygiene Law. (19) Access to clinical records will be permitted unless the “treating practitioner determines…that the requested review of the clinical record can reasonably be expected to cause substantial and identifiable harm to the patient or client or others which would outweigh the qualified person's right of access to the record…”(20)
The information in the record that can be challenged is limited to factual statements that the individual believes are inaccurate; the individual cannot submit a statement challenging the provider’s observations, inferences, or conclusions.
· For example, if Mr. Q receives his medical records and finds that the record indicates the incorrect blood type, Mr. Q may add a statement challenging this information. However, if Mr. Q sees in his medical record that his physician wrote “patient appears lethargic,” he cannot challenge that information because it is the observation of the doctor rather than fact.
When writing a statement, an individual should be sure to include their name, social security number and/or medical records number, the dates of service by the provider, and a statement that the accuracy of the medical record is being challenged under New York State law.
(20) NY MHY § 33.16(c)