How to get a nursing home resident's medical records in New York

Who can request the records

Being a close relative is not enough on its own. The facility will release records only to someone with legal authority, and it will ask for proof.

When a family member can use an Affidavit of Distributee

If the resident has died and no one has yet been appointed executor or administrator, New York treats a distributee as a "qualified person" who may obtain the records (Public Health Law § 18(1)(g)). A distributee is a relative entitled to inherit if there is no will, in this order (Estates, Powers and Trusts Law § 4-1.1):

1. Surviving spouse and children (a grandchild steps in if his or her parent died first)
2. Parents, if there is no spouse and there are no children or grandchildren
3. Brothers and sisters (or their children), if there is no spouse, no descendants and no parent

The distributee signs a sworn affidavit before a notary stating the relationship and that no executor or administrator has been appointed, and attaches a copy of the certified death certificate and a signed HIPAA authorization. The generator below prepares the affidavit.

Does a power of attorney help?

Sometimes, but less than most families expect.

• It is mainly a financial document. The New York statutory short form reaches medical records only through its "health care billing and payment matters" authority (subject K), which lets the agent act as the resident's personal representative under HIPAA for those matters (General Obligations Law § 5-1502K). A facility may still question a records request made on that basis.
• It ends at death. After the resident dies, the agent has no authority. The executor, administrator or a distributee must make the request.
• Medical decisions belong to a health care proxy, not a power of attorney. A health care agent is entitled to the medical records needed to make decisions once the resident lacks capacity.
• It must be signed with formalities. Since June 2021, the principal's signature must be acknowledged before a notary and witnessed by two disinterested witnesses (the notary may be one). The principal must have capacity when signing. Read the official statutory form (General Obligations Law § 5-1513).

If the resident can still sign, the fastest route to the records is usually a signed HIPAA authorization (OCA Form 960) naming you. If the resident can no longer sign and there is no health care proxy or power of attorney, a guardianship may be needed. Talk to a lawyer before signing or relying on a power of attorney for a resident whose capacity is in doubt.

What to request

A request for "the chart" often produces a thin printout. Ask for each category by name, and ask for an electronic copy. The generator lists all of these; uncheck anything you do not need.

• ■Nursing, physician and therapy notes
• ■Physician orders, including telephone orders
• ■MDS assessments
• ■Care plans and every revision
• ■Medication and treatment records (MAR/TAR)
• ■CNA flow sheets, turning and repositioning records
• ■Skin and wound records, including photographs
• ■Weights, food and fluid intake
• ■Fall risk assessments and fall documentation
• ■Labs, x-rays and consults
• ■Hospital transfer records
• ■Admission agreement, including any arbitration agreement
• ■Grievances and facility responses
• ■Electronic record audit trail

A facility may decline to produce some items, such as the audit trail or internal incident investigations, outside a lawsuit. Staffing records and internal quality-assurance materials generally are not available through a records request.

Deadlines and fees

If the facility does not respond

1. Call the medical records office and the administrator, then send a short written reminder that cites the deadline.
2. File a complaint with the New York State Department of Health. See how to file.
3. For a denial under Public Health Law § 18, ask the facility for the Medical Record Access Review Committee process.
4. If the records matter to a possible claim, a lawyer can obtain them, including items a facility will not release informally.