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Requesting Correctional Facilities Records

January 31, 2017

Advocates face endless challenges requesting medical records to support their clients’ disability claims, and complying with the Social Security Administration’s “all evidence rules.”  See the March 2015 edition of this newsletter outlining the new rules. http://www.empirejustice.org/issue-areas/disability-benefits/rules--regulations/final-submission-of-evidence.html#.WIkOQU0izcs .  But those challenges are even greater when trying to secure medical records from New York State Department of Corrections and Community Supervision (DOCCS).

There are some guidelines for these requests, which are governed by http://www.doccs.ny.gov/Directives/2010.pdf. Special provisions for requesting mental health and drug and alcohol records are in section VII-D.

According to the directives, medical records of individuals can be requested under Public Officer’s Law 87 (FOIL) or Public Health Law Section 18 and HIPPA. Requests for medical records should be in writing and addressed to the Nurse Administrator or Records Access Officer of the designated correctional facility. A valid authorization that complies with HIPPA is needed to send medical records to a third party. All requests for medical records received by the Records Access Officer must be acknowledged within five business days of receipt, informing the requester that the request is being forwarded and processed by the Nurse Administrator.

Mental health records are maintained by the Office of Mental Health (OMH) rather than DOCCS. Where the records are physically kept depends on the facility, and the amount of time the inmate has been absent from the facility. The Central New York Psychiatric Center in Marcy is technically the psychiatric center for all state prisons. See OMH website for a list of all psychiatric centers, and satellite units: https://www.omh.ny.gov/omhweb/bootstrap/providers.html
Requests for mental health records should be forwarded to the facility/ Satellite Mental Health Unit, Attention: Unit Chief. If the facility does not have a mental health unit, the requests should be forwarded to: Bureau of Forensic Services, 44 Holland Avenue, Albany, New York 12229.

Requests for records involving drug and alcohol treatment are even more complicated. According to the directive, the Department cannot release drug and alcohol records without (i) a court order (and ordinary subpoena is not valid); (ii) a request for such records by a hospital, physician or other health care provider in the case of a medical emergency; (iii) a request for certain drug and alcohol abuse records to which the Federal Regulations 42 CFR 2.11 et seq. do not apply; or (iv) a signed release by the subject of the record. A former inmate can authorize the release of drug and alcohol records by signing either departmental form #1079, “Release of Drug and Alcohol Abuse Records” (Department request), or form #1080, “Release of Drug and Alcohol Abuse Records.”

Can DOCCS charge for these records? Again, per the Directive, the Department is not permitted to charge any fee for searching records on-site, for making them available for public inspection (unless redactions are required), or for certification of copies. The fee for photocopies of a Department record, however, shall be twenty five cents per page, for a paper copy, or the actual cost of reproducing the record. Postage may also be charged when copies are mailed.

For non-paper records (e.g., Loronix or other electronic records), the agency may charge the actual cost of reproducing a record if over two hours of staff time, or an outside professional service is needed to prepare a copy of the requested records. A person requesting a record should be informed of the estimated cost of preparing a copy for the record. Depending upon the relationship between the Department and the person requesting the records, the Assistant Records Offices may provide the records with a bill for fees due, require assurance of payment before copies of the record are delivered, or require payment in advance of delivery.

Note the fee will be waived when the documents are being provided to an agency of the Federal, State, or local government.  The fee may be waived in the discretion of the Records Access Officer when circumstances warrant it.

It is not clear if DOCCS can be persuaded to waive fees pursuant to Sections 17 & 18 of the Public Health Law, which provide that a qualified person shall not be denied access to patient information solely because of inability to pay. Advocates report some success in this regard. Other advocates suggest requesting records be sent directly to SSA or the client’s local Department of Social Services (DSS) to avoid fees.

Keep us informed about your successes—or lack thereof—in obtaining prison records. And thanks to Jim Murphy of the Cortland Office of Central NY Legal Services, and David Ralph of the Elmira office of LawNY for sharing their tips.

 





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