Amendment #63 to H4601

Public Records of State Institutions

Representatives Garballey of Arlington, Domb of Amherst, Cabral of New Bedford, Stanley of Waltham, Cataldo of Concord, O'Day of West Boylston, Owens of Watertown, Barber of Somerville, Donato of Medford, Kerans of Danvers and Diggs of Barnstable move to amend the bill by inserting after section 18 the following section:-

SECTION 18A. Section 7 of chapter 66 of the General Laws, as so appearing, is hereby amended by adding the following sentence:- Subject to the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, the American Recovery and Reinvestment Act of 2009, P.L. 111-5, 42 U.S.C. 290dd-2, 42 C.F.R. Part 2 and 45 C.F.R. sections 160, 162 and 164, all records from state institutions for individuals with intellectual or developmental disabilities or mental health conditions in the commonwealth shall be open to public inspection and available for copying after the expiration of 75 years from creation of the record.

And moves to further amend the bill by inserting after section 28 the following 2 sections:-

SECTION 28A. Section 36 of chapter 123 of the General Laws, as so appearing, is hereby amended by adding the following paragraph:-

There shall be a rebuttable presumption that disclosure of patient records more than 50 years after the death of the patient is in the best interest of the patient; provided, that: (i) the records are records of a facility under the department’s supervision; and (ii) the requestor is a close relative of the patient or is engaged in academic research. The department shall make best efforts to redact any personal identifying information of living individuals in such patient records to avoid undue invasion of privacy. The department shall promulgate regulations in collaboration with the department of developmental services to implement this paragraph.

SECTION 28B. Section 17 of chapter 123B of the General Laws, as so appearing, is hereby amended by adding the following 2 paragraphs:-

There shall be a rebuttable presumption that disclosure of patient records more than 50 years after the death of the patient is in the best interest of the patient; provided, that: (i) the records are records of a facility under the department’s supervision; and (ii) the requestor is a close relative of the patient or is engaged in academic research. The department shall make best efforts to redact any personal identifying information of living individuals in such patient records to avoid undue invasion of privacy. The department shall promulgate regulations in collaboration with the department of mental health to implement this paragraph.

Each facility subject to this chapter or section 7 of chapter 19B shall maintain resident records for not less than 20 years after the closing of the record due to discharge, death or last date of service. A facility shall not destroy such records until after the retention period has elapsed and only upon notifying the department of public health that the records shall be destroyed; provided, that the department shall promulgate regulations further defining an appropriate notification process. Each facility shall include in its notice of privacy practices: (i) information concerning the provisions of this section; and (ii) the facility’s records termination policy.

And moves to further amend the bill by inserting after section 76 the following section:-

SECTION 76A. Notwithstanding any general or special law to the contrary, there shall be a moratorium on: (i) the destruction of hospital records pursuant to section 36 of chapter 123 of the General Laws until such time as the department of mental health promulgates regulations defining a public notice process for the destruction of such records, as required under said section 36 of said chapter 123; and (ii) the destruction of hospital records pursuant to section 17 of chapter 123B of the General Laws until such time as the department of developmental services promulgates regulations defining a public notice process for the destruction of such records, as required under said section 17 of said chapter 123B.

Additional co-sponsor(s) added to Amendment #63 to H4601

Public Records of State Institutions