Current through Register Vol. 47, No. 12, March 26, 2025
(a)
Policies and procedures. Agencies must have policies and procedures concerning
the process for requesting the release of records, including but not limited to
identifying appropriate staff who are authorized to receive requests and those
who are authorized to release records.
(b) Eligible requestors. Persons receiving
services or who formerly received services, and guardians, parents, spouses,
adult children, or adult siblings of such persons, pursuant to paragraph (a)(6)
of section
33.16 of
the Mental Hygiene Law, are eligible to request the release of records as
established by this section, subject to the following restrictions:
(1) In the event that an otherwise eligible
requestor is an alleged abuser, such requestor is not eligible to receive any
records or documents pertaining to the specific allegation or investigation of
the event or situation in which he or she was the targeted alleged abuser,
regardless of the conclusion.
(2)
If the person receiving services or who formerly received services is a capable
adult and objects to the provision of records and/or documents to an otherwise
eligible requestor, such requestor is not eligible to receive those records or
documents.
(c) Records
subject to release concerning reports of abuse that occurred prior to June 30,
2013.
(1) Agencies are required to release
all records and documents pertaining to allegations and investigations into
abuse as defined in applicable OPWDD regulations in effect at the time the
allegation occurred under the auspices (see section
624.20 of this Part) of the agency
or sponsoring agency to eligible requestors who make a request in accordance
with the provisions of this section.
(2) Agencies are required to release records
and documents pertaining to allegations of abuse which occurred or were
discovered on or after May 5, 2007, regardless of the date of the submission of
the written request.
(3) Agencies
are required to release records and documents pertaining to allegations of
abuse which occurred or were discovered on or after January 1, 2003 but prior
to May 5, 2007, if the written request is submitted on or before December 31,
2012.
(d) Records
subject to release concerning reportable incidents that occurred on or after
June 30, 2013. Agencies are required to release all records and documents
pertaining to reportable incidents to eligible requestors who make a request in
accordance with the provisions of this section.
(e) Procedures. Eligible requestors shall
submit a written request to staff designated by agency policy/procedures. If
the request is made prior to the closure of the incident, the parties specified
by agency policy/procedures must provide the requested records no later than 21
days after the closure of the incident. If the request is made at or subsequent
to the closure of the incident, the agency must provide the requested records
no later than 21 days after the request is made. The written request must
specify the records that are requested.
Note: The criteria for closure of an incident are in
subdivision
624.5(o) of this
Part.
(f) Redaction of
records.
(1) Prior to the release of records,
agencies must redact the names of employees who are involved in the incident or
the investigation or who are interviewed as a part of the investigation,
persons receiving services (or who formerly received services), and any
information tending to identify such employees or persons. For the purpose of
this section, "employee" has the same meaning as in section
624.6(f)(10) of
this Part. Redaction may be waived if the employee or person authorizes
disclosure, unless redaction of the specific information is necessary because
it tends to identity another employee or person who has not authorized
disclosure or for another reason specified in this subdivision.
(2) In addition, if any records that are
subject to release identify a particular party as having made a child abuse or
maltreatment report to the Statewide Central Register of Child Abuse and
Maltreatment (SCR), contacted the SCR, or otherwise cooperated in a child
abuse/maltreatment investigation, that name as well as any information tending
to identify the party must be redacted.
(g) Cover letter and dissemination
restrictions. The release of records to recipients must be in accordance with
the following:
(1) The release of records must
be accompanied by a cover letter to the recipient which includes the following
statement: "pursuant to section
33.25 of
the Mental Hygiene Law, the enclosed records and reports shall not be further
disseminated, except that you may share the report with:
(i) a health care provider;
(ii) a behavioral health care
provider;
(iii) law enforcement, if
you believe a crime has been committed; or
(2) Pursuant to New York State law, the
recipient, parties with whom the recipient shared records, or the individual
receiving services may use records and documents released in accordance with
this section in any legal action or proceeding brought by or on behalf of the
individual receiving services.
(h) Documentation.
(1) The written request for the release of
records must be maintained and the time the request was received must be
documented.
(2) A copy of the
redacted records that were released must be maintained and the time the records
were provided must be documented.
(i) Administrative appeal process - denial of
requested records/documents.
(1) A requestor
denied access to the records and documents requested pursuant to this section
may appeal, in writing, such denial to the incident records appeals officer
designated by OPWDD.
(2) Upon
receipt of the appeal, the agency issuing the denial will be notified of the
appeal and given an opportunity to submit relevant information to the incident
records appeals officer, including the reasons for denial, within 10 business
days of the receipt of such appeal. The incident records appeals officer may
also request additional information from the requestor as may be necessary to
resolve the appeal.
(3) Within 10
business days of the receipt of complete information, the incident records
appeals officer will make a determination about whether the requested records
and/or documents should be released. The incident records appeals officer will
issue his or her determination with an explanation of the reasons for the
determination to the requestor and the agency. If so directed by the incident
records appeals officer, the agency must provide the requested records and/or
documents to the requestor.
(j) Note that records maintained by the
agency may also be available under section
496 of the
social services law to "other persons named in the report" as defined in
section
488 of the
social services law.
