110-a. Confidentiality of workers' compensation records. 1. Restrictions on disclosure. (a) Except upon the order or subpoena of a court of competent jurisdiction, or subpoena of a law enforcement agency, or subpoena properly issued under the authority of an administrative agency, or in accordance with subdivision two or three of this section, no workers' compensation record shall be disclosed, redisclosed, released, disseminated or otherwise published by an officer, member, employee or agent of the board to any other person.
(b) For purposes of this section, (i) "record" means a claim file, a file regarding an injury or complaint for which no claim has been made, and/or any records maintained by the board in electronic databases in which individual claimants or workers are identifiable, or any other information relating to any person who has heretofore or hereafter reported an injury or filed a claim for workers' compensation benefits, including a copy or oral description of a record which is or was in the possession or custody of the board, its officers, members, employees or agents.
(ii) "person" means any natural person, corporation, association, partnership, or other public or private entity.
(iii) "individually identifiable information" means any data concerning any injury, claim, or potential claim that is linked to an identifiable employee or other natural person.
2. Authorized disclosure. Workers' compensation records which contain individually identifiable information may, unless otherwise prohibited by law, be disclosed to:
(a) those officers, members and employees of, and to those who contract with, the board if such disclosure is necessary to the performance of their official duties pursuant to a purpose of the board required to be accomplished by statute or executive order or otherwise necessary to perform their lawful duties;
(b) officers or employees of another governmental unit, or agents and/or contractors of the governmental unit at the request and/or direction of the governmental unit, if the information sought to be disclosed is necessary for the receiving governmental unit to operate a program or carry out a purpose specifically authorized by statute, including the investigation of a fraud, criminal offense or licensing or regulatory violation, or to act upon an application for benefits submitted by the person who is the subject of the record;
(c) a person who is the subject of the particular record for which disclosure is sought; or an attorney or licensed representative who is retained by the person who is the subject of the particular record for which disclosure is sought;
(d) a workers' compensation insurance carrier, employer or the state insurance fund, including officers, employees, legal representatives, agents, reinsurers and contractors thereof, where such individuals are acting within the scope of their duties in evaluating, processing or settling a claim involving the subject of the particular record for which disclosure is sought, and where such carrier, employer or fund is a party to such claim;
(e) a judicial or administrative officer or employee in connection with an administrative or judicial proceeding; and
(f) a person engaged in bona fide statistical research, including but not limited to actuarial studies and health and safety investigations, which are authorized by statute or regulation of the board or other governmental agency. Individually identifiable information shall not be disclosed unless the researcher has entered into a confidentiality agreement with the board and has agreed that any research findings will not disclose individually identifiable information; and
(g) an insurer or health benefit plan including officers, employees, legal representatives, agents, and contractors thereof, where such individuals are acting within the scope of their duties in evaluating compensation records for the purpose of determining entitlement to reimbursement for payments made for medical and/or hospital services pursuant to subdivisions (d) and (h) of section thirteen of this chapter.
(h) a treating physician or other health care provider who has rendered treatment to a claimant, or is seeking authorization for treatment or special services, (i) where the information sought to be disclosed relates to (a) compensability of a claim related to such treatment, (b) reimbursement for such treatment, or (c) authorization for special services; or (ii) where the information to be disclosed is limited to notice to the treating physician or other health care provider that a waiver agreement has been initiated pursuant to section thirty-two of this chapter.
3. Individual authorization. Notwithstanding the restrictions on disclosure set forth under subdivision one of this section, a person who is the subject of a workers' compensation record may authorize the release, re-release or publication of his or her record to a specific person not otherwise authorized to receive such record, by submitting written authorization for such release to the board on a form prescribed by the chair or by a notarized original authorization specifically directing the board to release workers' compensation records to such person. However, in accordance with section one hundred twenty-five of this article, no such authorization directing disclosure of records to a prospective employer shall be valid; nor shall an authorization permitting disclosure of records in connection with assessing fitness or capability for employment be valid, and no disclosure of records shall be made pursuant thereto. It shall be unlawful for any person to consider for the purpose of assessing eligibility for a benefit, or as the basis for an employment-related action, an individual's failure to provide authorization under this subdivision.
4. It shall be unlawful for any person who has obtained copies of board records or individually identifiable information from board records to disclose such information to any person who is not otherwise lawfully entitled to obtain these records.
5. Any person who knowingly and willfully obtains workers' compensation records which contain individually identifiable information under false pretenses or otherwise violates this section shall be guilty of a class A misdemeanor and shall be subject upon conviction, to a fine of not more than one thousand dollars.
6. In addition to or in lieu of any criminal proceeding available under this section, whenever there shall be a violation of this section, application may be made by the attorney general in the name of the people of the state of New York to a court or justice having jurisdiction by a special proceeding to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance of such violations; and if it shall appear to the satisfaction of the court or justice that the defendant has, in fact, violated this section, an injunction may be issued by such court or justice, enjoining and restraining any further violation, without requiring proof that any person has, in fact, been injured or damaged thereby. In any such proceeding, the court may make allowances to the attorney general as provided in paragraph six of subdivision (a) of section eighty-three hundred three of the civil practice law and rules, and direct restitution. Whenever the court shall determine that a violation of this section has occurred, the court may impose a civil penalty of not more than five hundred dollars for the first violation, and not more than one thousand dollars for the second or subsequent violation within a three year period. In connection with any such proposed application, the attorney general is authorized to take proof and make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules.
Last modified: February 3, 2019