Amendment of Health Care Minimum Standards (Patient Confidentiality and Injury Reporting Requirements)

Proposed Rules: Open to Comments

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Agency:
Comment By: 
Thursday, June 20, 2019
Download Copy of Proposed Rule (.pdf): 

 

Statement of Basis and Purpose of Proposed Rules 

The proposed rule revisions would amend the Health Care Minimum Standards adopted by the Board of Correction (“Board” or “BOC”), set forth in Chapter 3 of Title 40 of the Rules of the City of New York. Specifically, the revisions would: 

  • Amend various provisions of Section 3-08 (Privacy and Confidentiality) of the Health Care Minimum Standards; and 
  • Add a new Section 3-16 (Inmate Injury Response) to the Health Care Minimum Standards. 

The New York City Charter mandates that there shall be a Board of Correction, § 626(a), responsible for inspecting and visiting all institutions and facilities under the jurisdiction of DOC. § 626(c)(1). The Board has the “powers and duty” to conduct “evaluation of departmental performance.” § 626(c)(4). Under § 626(e) of the Charter, the Board is authorized to establish minimum standards “for the care, custody, correction, treatment, supervision, and discipline of all persons held or confined under the jurisdiction of” DOC. 

The Board promulgated Health Care Minimum Standards in 1991. These Standards seek to ensure patient care in the jails is consistent with legal requirements, accepted professional and community standards, and sound professional judgment and practice. This includes requiring the protection of confidential private health information of people in DOC’s custody. To that end, these Standards promote the health and safety of people incarcerated in the City’s jails and to further the Board’s mandate under the City Charter. 

In January 2019, the Board published a report titled “Serious Injury Reports in NYC Jails” (“Serious Injury Report”), which reviewed aggregate data on serious injuries to people in custody over time and summarized BOC staff’s in-depth audit of three months of injury reports and investigations.(1) The Injury-to-Inmate form (“Injury Form”) is the primary tool for documenting and investigating both serious and non-serious injuries in the jails. The Injury Form includes a section requiring NYC Health + Hospital’s Correctional Health Services staff (“CHS”) to enter the nature of the injury after CHS has conducted a medical evaluation of the injured person; once CHS enters this information, the Injury Form is transmitted back to DOC to investigate the circumstances of the injury and report its findings on the Form. 

As noted in the Board’s Report, when serious injuries occur in the jails, their consequences are severe and wide-ranging.(2) Serious injuries affect the short and long-term physical and mental health of individuals while incarcerated and can have a compounding negative impact on individuals’ employment, education, housing, and general reintegration into the community.(3) The Report further states: 

The City must understand the rates, types, and circumstances related to serious injuries occurring in NYC jails in order to prevent them. Additionally, accurate reporting is necessary to maintain public accountability and trust in and engagement with government. When implemented, this report’s recommendations will increase prevention of serious injuries to incarcerated people and promote problem-solving and transparency.(4) 

 

The Serious Injury Report details significant inconsistencies and deficiencies in the reporting and investigation of serious injuries by DOC and CHS. The proposed rules seek to: 

(1) expressly allow CHS to share with DOC specific diagnoses related to injuries sustained by people while in DOC custody; and 

(2) address the deficiencies identified in the Serious Injury Report by requiring DOC and CHS to comply with mutual data collection and reporting requirements concerning injuries to people while incarcerated in the City’s jails. 

Following is a descriptive summary of the proposed rules. 

Proposed Amendments, Generally

Section 1-01

Because individuals in DOC custody are people first and the circumstance of their incarceration is not their defining feature, the Board has made a commitment to employ person-first language in its Standards and general communications going forward. To this end, the Board proposes deleting all references to “Inmates” (with the exception of references to Injury-to-Inmate forms, which are identified by their title) in favor of person-first terms such as “people in custody.”

Proposed Amendments to Rule § 3-08 (Privacy and Confidentiality) 

            Section 3-08(b)(2)

To avoid “dual loyalty” issues,(5) § 3-08(b)(2) prohibits health care personnel from conducting body cavity searches or strip searches of people in custody. The proposed amendment to subdivision (b)(2) would extend this prohibition to “forensic evaluations for criminal prosecution or investigatory purposes,” with the exception of the Forensic Psychiatric Evaluation Clinics. (6) 

            Section 3-08(c)(3)

Section 3-08(c)(3) enumerates the circumstances under which health care personnel may report a person in custody’s health information to DOC without the person’s written consent. However, § 3-08(c)(3) states that “such information shall not include the specific diagnosis or the entire health record” of the person in custody. 

In November 2013, the City’s Department of Health and Mental Hygiene (DOHMH) (then the City’s correctional Health Authority) first sought—and the Board approved—a variance from § 3-08(c)(3)’s prohibition on sharing specific diagnoses with DOC. Specifically, the variance permitted CHS to provide DOC with specific diagnoses related only to injuries sustained by persons in correctional custody. The reporting of diagnoses unrelated to an injury remained prohibited, as stated in the variance. The variance was renewed, primarily at six-month intervals, until February 12, 2019. 

Under the proposed rule, CHS would explicitly be able to share with DOC “specific diagnoses of injuries sustained by people while in custody … for the limited purpose of investigating injuries” (§ 3-08(c)(3)(ii)(A)), mooting the need for a variance to that effect.

Section 3-08(c)(4)

Section 3-08(c)(4) of the current rules prohibits CHS from sharing individual’s disease-specific information with DOC in cases where an individual has a communicable disease, mandating instead that CHS instruct DOC staff generally on proper precautions. Under the proposed rules, CHS would be able to disclose certain individual communicable disease diagnoses when an exposure has occurred at the facility and it is absolutely necessary for CHS to engage in contact tracing to protect the health and safety of exposed individuals; when such disclosures are made, CHS will be required to inform the Board within 24 hours. 

            Section 3-08(c)(7)(i)

Section 3-08(c)(7)(i) states that when a person in custody is transferred from one correctional facility to another within DOC’s custody, the person’s “complete health record shall be transferred simultaneously.” The proposed amendment revises this requirement to state that the person’s “complete health record shall be maintained and available in each location.” This change is intended to bring the Standards in line with current Electronic Medical Record practices.

Proposed Rule § 3-16 (Injury Response) 

Injury surveillance and data collection are important tools for identifying and protecting vulnerable patients and promoting public health in the jails.(7) Proposed Minimum Standard § 3-16 aims to address the inconsistencies and deficiencies identified in BOC’s Serious Injury Report by requiring, among other things, that: 

(1) DOC and CHS establish policies and procedures to address and prevent injuries to people in custody; 

(2) DOC’s injury investigations, including all supporting documentation such as Injury Forms, be completed in a prompt, thorough, accurate, and objective manner; 

(3) DOC and CHS meet on a regular basis to review data on injuries; 

(4) within one year of the effective date of the rule, DOC and CHS maintain a coordinated electronic tracking system for serious injuries, and within two years of the effective date of the rule, they maintain a coordinated electronic system for serious and non-serious injuries; 

(5) commencing September 2019 and rolling out in three phases through late 2021,DOC and CHS release a joint, monthly public report of specified data on serious and non-serious injuries to people in custody; and 

(6) on at least an annual basis, DOC review all joint, public, monthly reports for the last year and provide the Board with a written public report of its findings and any corrective actions. 

The purpose of these new requirements is to improve DOC’s and CHS’s ability to address and prevent injuries to people in custody and strengthen the Board’s oversight of the agencies’ progress toward achieving this goal.

Authority

The Board’s authority for these rules is found in section 1043 and 626 of the New York City Charter.

1. Serious Injury Report (p. 3); available at:  https://www1.nyc.gov/assets/boc/downloads/pdf/Reports/BOC-Reports/2019.01.07%20-%20BOC%20Serious%20Injury%20Report%20-%20Final.pdf. 

2. Serious Injury Report (p. 3) (Ludwig, Ariel, et al., Injury Surveillance in New York City Jails, 102 Am J Public Health, 1108 (2012), available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3483942/.)

3. Id.

4. Id.

5.  “Dual loyalty is an ethical dilemma commonly encountered by health care professionals caring for persons in custody. Dual loyalty may be defined as clinical role conflict between professional duties to a patient and obligations, express or implied, to the interests of a third party such as an employer, an insurer, or the state.” Pont, Jörg et al., Dual Loyalty in Prison Health Care, 102 Am J Public Health, 475 (2012).

6. In 2018, Health + Hospitals consolidated the management of its four forensic psychiatric evaluation clinics under CHS in an effort to streamline the forensic psychiatric evaluation process and reduce the amount of time persons spend in jail custody awaiting a mental fitness evaluation.

7. Ross MacDonald, et al., Operationalizing a Human Rights Agenda in Correctional Health, 38 SGIM Forum 1, 12 (2015).

 
Public Hearing
Subject: 

Amendment of Health Care Minimum Standards (Patient Confidentiality and Injury Reporting Requirements)

Public Hearing Date: 
Thursday, June 20, 2019 - 9:00am
Contact: 

No contact

Location: 
Spector Hall
22 Reade Street
New York, NY 10007