A Journey Above

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STATE OF NEW YORK
DEPARTMENT OF HEALTH
Corning Tower The Governor Nelson A. Rockefeller Empire State Plaza Albany, New York 12237

Antonia C. Novello, M.D., M.P.H., Dr. P.H. Commissioner

Dennis P. Whalen Executive Deputy Commissioner

May 4, 2004

Alan Lambert, M.D. McAloon & Friedman, P.C. 123 William Street New York, New York 10038-3804 DOH GC Opinion No. 04-03 Medical Record Release Dear Dr. Lambert: This is in response to your April 15th letter regarding the authority of an Article 28 facility to release medical records of a decedent to a legally authorized estate executor. The medical record in issue relates to an abortion procedure. The estate executor was the deceased patient’s spouse. You also noted that the patient had clearly expressed her intent that the information about the procedure not be disclosed to her husband. This intent was documented in the record. You requested an opinion regarding the application of Public Health Law (“PHL”) §§ 17 and 18 and regarding the effect of the federal Health Insurance Portability and Accountability Act (“HIPAA”) on state law. Your specific questions and the Department’s responses follow. Issue I Can an Article 28 facility that performed an abortion on a decedent/patient release a copy of the medical record for the decedent/patient to the legally authorized executor of the estate upon being provided with a HIPAA compliant authorization signed by the executor of the estate? Issue II Can an Article 28 facility that performed an abortion on a decedent/patient release a copy of the medical record for the decedent/patient to the legally authorized executor of the estate upon being provided with a HIPAA compliant authorization signed by the executor of the estate in a circumstance where the patient’s previously expressed intent as documented in the medical record was that information with respect to the abortion (medical record) not be provided to the husband? (Please be reminded that the husband is now the...
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