Most New York health care providers must follow both the HIPAA Privacy Rule and state laws that give patients rights in their medical records. When this guide uses the phrase health care providers it includes both health care practitioners (such as doctors, dentists, and chiropractors) and health care facilities (such as hospitals).
There are some health care providers that do not have to follow the HIPAA Privacy Rule. The HIPAA Privacy Rule only covers health care providers that use computer technology to send health information for certain administrative or financial purposes (such as filing claims for insurance)
Sometimes Ashley goes to a doctor at a free clinic for medical treatment. The doctor does not accept private insurance, Medicaid, or Medicare. The doctor does not file any insurance claims. Ashley’s doctor probably does not have to follow the HIPAA Privacy Rule. This is because the doctor does not appear to send health information for the types of administrative or financial purposes that would make her a covered health care provider under the HIPAA Privacy Rule.
If you have questions about whether your health care provider must follow the federal HIPAA Privacy Rule, you can contact the Office for Civil Rights, U.S. Department of Health and Human Services (OCR), the agency that is in charge of enforcing the HIPAA Privacy Rule. Section 4 of this guide lists contact information for OCR.
Are nursing homes covered by HIPAA?
Yes. Most nursing homes are covered by the HIPAA Privacy Rule. They also have to follow other specific rules that cover nursing homes and long term care facilities. Because the rules for nursing homes are different than they are for other health care providers, they are not covered by this guide.
What happens if my provider does not have to follow HIPAA?
If your provider does not have to follow the HIPAA Privacy Rule, they still have to follow New York laws that give you rights to your medical record. Section 6 lists some resources that summarize these state laws.
This guide, however, only explains getting your medical record from New York providers who have to follow the HIPAA Privacy Rule.
What Records Do I Have the Right to Get and Amend?
You have the right to see and get a copy of your medical record. You also have the right to correct your medical record by having information added to it to make it more complete or accurate. This right is called the right to amend your record. (This guide will call these rights the right to “get and amend.")
Your medical record includes such things as:
- Information that identifies you, such as your name and Social Security number.
- Information that you tell your doctor or health care provider, such as:
- Your medical history.
- How you feel at the time of your visit.
- Your family health history.
- The results of your examination.
- Test results.
- Treatment received in a hospital.
- X-rays, records made by heart monitors, and similar items.
- Medicine prescribed.
- Other information about things that can affect your health or health care.
Who owns my medical record?
Under New York law, your health care provider owns the actual medical record. This means, for example, that if your provider maintains paper medical records, your provider has the right to keep the original record. You only have the right to see and get a copy of it.
My health care provider makes personal notes about patients. Do I have a right to get these notes?
Probably. You have the right to get a provider’s personal notes about you if the notes are used to make decisions about you.
Michael’s doctor writes notes about her personal impressions of patients in their medical records. She uses these notes to help her treat her patients. For example, she wrote a note in Michael’s medical record saying she suspects that he is exaggerating his complaints about his health and that his problems are “all in his head.” If Michael requests his entire medical record, the doctor must let him see and get a copy of this note.
What happens if my medical record has information in it that came from a different health care provider?
Generally, if your provider has the medical information that you request, they must give it to you. You have the right to get the information no matter who originally put it in the record. Your right to amend this information may be limited though. For more information about how to amend information in your record you can read Section 3 of this guide.
Dr. Green keeps a medical record on his patient Kayla. This record includes information about Dr. Green’s treatment of Kayla. It also includes information about tests and treatment that she has received from other doctors. If Kayla requests her medical record from Dr. Green, she has the right to get the entire medical record, not just the part that is about Dr. Green’s treatment of her.
Do I have the right to get and amend records about my mental health treatment?
Maybe. The rules for when you can get and amend your records about mental health treatment can be different. For example, psychotherapy notes are treated differently than other records under the HIPAA Privacy Rule. Because the rules for mental health records can be different they are not discussed in this guide. You can find some resources about your rights in these types of records in Section 6.
Who Has the Right to Get and Amend My Medical Record?
You have the right to see and get a copy of medical records that are about you. You also have the right to correct medical records that are about you by having information added to them. (This guide calls these rights the right to “get and amend” your medical record.) If there is someone who acts as your personal representative, they usually have the right to get and amend your record on your behalf. Generally, a personal representative is a person who has the right to make health care decisions on your behalf.
Do I have the right to get and amend my child’s medical record?
Generally, yes. When you, as a parent, consent to treatment or care for your minor child you have right to get and amend the minor’s medical record related to that treatment. You also have the right of access to a minor’s medical record where they obtain emergency treatment without your consent.
In New York, you usually have these rights until your child turns 18. However, if your child is 12 or older and objects to your request, her provider may deny you access to her medical record.
As a parent, do I always have the right to get and amend my child’s medical record?
No. A parent does not always have the right of access to a child’s medical record. For example, parents do not have the right to get their minor child’s medical record if a health care provider determines that providing a parent access would have a harmful effect on the care and treatment of the minor.
Some other situations where parents do not have the right of access to their child’s medical records are discussed in the following questions and answers.
Who has the right to get and amend my child’s medical record once she turns 18?
Once your child turns 18, she has the right to get and amend her own medical record. This right includes getting access to records that were created when she was younger. You usually no longer have the right to get and amend your child’s medical record just because you are her parent.
I am under 18. Do I have the right to get and amend my medical record?
Generally, no. As a minor, you usually do not have the right to get and amend your own medical record. That right usually belongs to your parents.
However, there are situations when you may have the right of access to your own medical record. For example, if you are an emancipated minor under New York law, you have the right to get and amend your own medical record. In New York, you also have the right to access your medical record when, as a minor, you can legally consent to medical treatment without your parents’ permission. This right is discussed in the next question and answer.
I am under 18, but I can legally consent to medical treatment without my parents’ permission. Who has the right to get and amend medical records that are related to this treatment?
You do. Even though you are a minor, sometimes you can consent to medical treatment without the permission of your parents. For example, in New York a minor who is pregnant may give consent for medical, dental, health and hospital services relating to prenatal care. Similarly, a minor can get treated for sexually transmitted diseases without parental consent. When you consent to such treatment, you have the right to get and amend your medical record related to this treatment. In New York, your parents generally do not have the right to get and amend information related to treatment for which they did not give consent.
Jason is under 18 and is sexually active. At his annual exam Jason consents to an HIV test. He does not get his parents’ permission for the test. Jason’s mother later requests a copy of Jason’s medical record. Jason’s health care provider cannot give Jason’s mother the part of his record about the HIV test unless Jason gives his written permission.
If you have questions or concerns about whether your parent will have access to your medical record you should talk to your health care provider.
My mother signed a form that names me as her health care proxy. Do I have the right to get and amend her medical records?
Yes. In New York, you can sign a health care proxy form that names someone you trust to make health care decisions for you if you lose the ability to make decisions yourself. This person is called your health care agent or proxy. If you are your mother’s health care proxy, you generally have the right to get and amend her medical records that are relevant to making health care decisions on her behalf. You have these rights while the proxy is in effect.
Maria’s mother signed a form naming Maria her health care proxy in the event her mother is unable to make her own health care decisions. Maria’s mother was in a bad accident and is not able to make decisions about her health care. Maria now has the right to make health care decisions on her mother’s behalf. She also has the right to get and amend medical records that are relevant to making these decisions. For example, Maria has the right to see the records about her mother’s current medical condition and treatment.
Maria is curious about the time her mother had a miscarriage. Maria wants to look at these old medical records. Maria does not have the right to get and amend these medical records because the records have nothing to do with her mother’s current condition or treatment.
My father recently died. Do I have the right to get a copy of his medical record?
Maybe. In New York, you have the right to get and amend a deceased person’s medical records if you are the personal representative (an executor or administrator) of their estate. If no personal representative has been appointed, you have the right to get and amend a deceased person’s medical record if you are their surviving spouse or child. In some circumstances other relatives may have access rights to a deceased’s medical records.
How Long Does My Provider Have to Keep My Medical Record?
Under New York law, many health care providers must keep medical records for a minimum period of time. For example, doctors in New York generally must keep medical records for at least six (6) years. Obstetrical records and records about minor patients must be kept at least six (6) years or until one year after the minor patient reaches 18, whichever is longer. Hospitals must keep their medical records at least six years from the date you are discharged. In practice, many health care providers keep their records longer.
You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it.
