Provides for the confidentiality of contact tracing information from the identification of individuals who have come in contact with an individual with a confirmed or probable diagnosis of novel coronavirus, COVID-19.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10500c REVISED 07/22/2020
SPONSOR: Rules (Gottfried) TITLE OF BILL:
An act to amend the public health law, in relation to the confidentiali-
ty of contact tracing information
PURPOSE:
To ensure that information collected through contact tracing for COVID19
is kept confidential
SUMMARY OF PROVISIONS:
Section one of the bill would amend Article 21 of the public health law
by adding a new title 8 including a new section 2180 which sets forth
various definitions and a new section 2181 which:
-Requires all contact tracing information be kept confidential and may
not be disclosed except as necessary to carry out contact tracing or a
permitted purpose (2181 (1) (a);
-Authorizes an individual to waive confidentiality in a written,
informed, and voluntary waiver in plain language understandable to the
individual (oral waiver in a limited case). If an individual lacks the
ability to make a waiver, an individual authorized to consent to health
care for the individual may make the waiver (2181 (2) (a);
-States that a waiver for providing support to an individual only
applies if the individual consents to the providing of the support
(2181) (2) (b). While 2181 (2) (b) does not, on its face, authorize
consent by another person for support services where the individual
lacks capacity, the legislative intent is that it does authorize such
consent. Otherwise it would create an irrational and unintended result
making it effectively impossible to provide consent to enable support
services for person who lacks capacity to consent.
-Authorizes disclosure, possession, or use of contact tracing informa-
tion that has been de-identified, for public health or public health
research purposes, including requiring technical safeguards against
re-identification (2181 (4) (a);
-Prohibits law enforcement agents or entities or immigration authorities
from participating in contact tracing (except acting as the principal
individual or contact individual) and prohibits contact tracers and
entities from providing contact tracing information to law enforcement
or immigration authorities except for permitted purposes (2181) (6). The
final sentence of subdivision 2181 (6) creates the plain language excep-
tion to the prohibition, for permitted purposes (as defined in 2180
(11,) and only relating to a specified principal individual or contact
individual and only to the extent necessary for such permitted purpose.
-Directs the Commissioner and New York City Commissioner of Health and
Mental Hygiene to make regulations on technical safeguards for data
storage, transmission, and use, that are at least as protective as apply
to other confidential information (2181) (7) (a); and
-Requires non-governmental entities (such as private contractors hired
for contact tracing programs) to expunge or de-identify information in
their possession within 30 days of receiving it, and allows an addi-
tional 15 days if actively engaged in contact tracing using that infor-
mation and the individual consents (2181) (7) (b).
New York City uses a private company to house its contact tracing infor-
mation. The City says the information is fully encrypted, only accessi-
ble by the governmental contact tracing entity, and that the company has
no access to or control of the information. The company is not able to
deliver it to anyone. Only the governmental contact tracing entity can
do that. This is like property being in a sealed container in a bank
safe deposit box or a locked mini-storage space, where only the City has
the keys. Where this is in fact the case, it is clear, and is the legis-
lative intent, that this contact tracing information would not be
considered to be "possessed or controlled" by the non-governmental indi-
vidual or entity, for purposes of 2181 (7) (b). It would be "possessed
or controlled" by the governmental entity. It is important to note that
the bill requires the state and city health departments to adopt very
stringent regulations to secure all contact tracing information.
Section two of the bill provides an effective date.
JUSTIFICATION:
New York State began an aggressive contact tracing program in May 2020
as part of its effort to stop the spread of the COVID-I9 virus and move
toward the reopening of regions of the state. The plan envisions an
"army" of contact tracers to help identify COVID-19 positive individ-
uals, who they have been in contact with, and isolate those who may have
been infected. Contact tracing has been conducted for decades to address
various communicable diseases, but never on this scale. It is estimated
that there will be 30 contact tracers per 100,000 individuals.
Contact tracing is vital, but will not work unless people know that
their information will be kept confidential.
Under the bill, PHL Sec. 2181(1)(a) states: "All contact tracing infor-
mation . . . may not be disclosed except as necessary to carry out
contact tracing or a permitted purpose." Where contact tracing informa-
tion is disclosed for a particular purpose under the bill, the recipient
of the information is and must be bound by the terms under which it was
disclosed and may not "repurpose" the use or handling of the informa-
tion.
New York State has a long history of establishing confidentiality
protections for information gathered on people relative to contagious
diseases like HIV/AIDS and sexually transmitted diseases. Information
gathered through this new, massive COVID-19 contact tracing program must
also be protected.
At a joint legislative public hearing held May 18, 2020 entitled
"Exploring solutions to the disproportionate impact of COVID-19 on
minority communities," concerns were raised about the use and sharing of
information gathered through contact tracing. Communities of color have
been disproportionately impacted by the COVID-19 pandemic and have expe-
rienced many types and levels of racial disparities. They may be right-
fully reluctant to share sensitive and personal information with
contract tracers for fear that the information will be shared with other
government entities. As this information is key to stopping the spread
of this highly contagious virus, individuals must know that the informa-
tion they provide cannot be shared with law enforcement or be used in
other ways not associated with the purposes of safeguarding the public's
health without their voluntary disclosure and written consent.
This legislation preserves the confidentiality of information and
reports gathered through contact tracing. It both protects all individ-
uals involved in the effort and provides them with the confidence that
sharing information with a contact tracer cannot put them or their loved
ones in harm's way.
LEGISLATIVE HISTORY:
New bill.
FISCAL:
None
EFFECTIVE DATE:
Immediately.
STATE OF NEW YORK
________________________________________________________________________
10500--C
IN ASSEMBLY
May 22, 2020
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Gottfried,
Paulin, Dinowitz, Jaffee, McDonald, Galef, Simon, Solages, Bronson,
Hunter, Niou, Zebrowski, Quart, Cruz, Ashby, Lentol, Weprin, Epstein,
Mosley, Abinanti, Perry, Pichardo, Blake, Englebright, Seawright,
Ortiz, Reyes, L. Rosenthal, Fernandez, Simotas, Cahill, Jacobson,
Frontus, McMahon, Smith, Thiele, Colton, Stern, Rodriguez, Dickens,
Taylor, Otis, Lupardo, Fahy, Steck, Lavine, Cymbrowitz, Wright, Ramos,
Walker) -- read once and referred to the Committee on Health --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee -- again reported from said committee
with amendments, ordered reprinted as amended and recommitted to said
committee -- reported and referred to the Committee on Rules --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the public health law, in relation to the confidentiali-
ty of contact tracing information
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 21 of the public health law is amended by adding a
2 new title 8 to read as follows:
3 TITLE 8
4 NOVEL CORONAVIRUS, COVID-19
5 Section 2180. Definitions.
6 2181. COVID-19 contact tracing; confidentiality.
7 2182. Regulations.
8 § 2180. Definitions. As used in this title the following terms shall
9 have the following meanings:
10 1. "Contact tracing" means case investigation and identification of
11 principal individuals and contact individuals.
12 2. "Contact tracer" and "contact tracing entity" means an individual
13 or entity employed by or under contract with the state, a local govern-
14 ment, a state or local governmental entity, or an agent thereof, to
15 conduct contact tracing, engage in contact tracing, or receive contact
16 tracing information.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16487-13-0
A. 10500--C 2
1 3. "Contact tracing information" means any information that includes
2 or can reveal the identity of any principal individual or contact indi-
3 vidual, and any COVID-19-related information or test results, received
4 or collected for the purpose or in the course of contact tracing.
5 4. "Contact individual" means an individual who has or may have come
6 in contact with a principal individual or who has or may have been
7 exposed to and possibly infected with COVID-19.
8 5. "Principal individual" means an individual with a confirmed or
9 probable diagnosis of COVID-19.
10 6. "COVID-19" means infection with or the disease caused by the severe
11 acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
12 7. "Immigration authority" means any entity, officer, employee, or
13 government employee or agent thereof charged with or engaged in enforce-
14 ment of the federal Immigration and Nationality Act, including the
15 United States Immigration and Customs Enforcement or United States
16 Customs and Border Protection, or any successor legislation or entity.
17 8. "De-identified" means, in relation to contact tracing information,
18 that the information cannot identify or be made to identify or be asso-
19 ciated with a particular individual, directly or indirectly and is
20 subject to technical safeguards and policies and procedures that prevent
21 re-identification, whether intentionally or unintentionally, of any
22 individual.
23 9. "Law enforcement agent or entity" means any governmental entity or
24 public servant, or agent, contractor or employee thereof, authorized to
25 investigate, prosecute, or make an arrest for a criminal or civil
26 offense, or engaged in any such activity, but shall not mean the depart-
27 ment, the commissioner, a health district, a county department of
28 health, a county health commissioner, a local board of health, a local
29 health officer, the department of health and mental hygiene of the city
30 of New York, or the commissioner of the department of health and mental
31 hygiene of the city of New York.
32 10. "Support" means resources or services provided to an individual to
33 enable such individual to safely quarantine or isolate, including
34 grocery, meal or pharmacy delivery, laundry services, child or elder
35 care, pet walking, assistance with telephone, internet, or other commu-
36 nication services or devices, health and mental health services, legal
37 services, provision of appropriate living space for individuals who
38 cannot isolate or quarantine at home, and income replacement. "Support"
39 may also include support provided to other individuals for whom the
40 individual commonly provides those resources or services.
41 11. "Permitted purpose" means:
42 (a) disclosure to appropriate health care providers or their personnel
43 for the purpose of the clinical diagnosis, care or treatment of the
44 principal individual or contact individual who is the subject of the
45 information, where an emergency exists and the individual is in immedi-
46 ate need of medical attention and an attempt to secure consent would
47 result in delay of treatment which would increase the risk to the indi-
48 vidual's life or health;
49 (b) facilitating a legally-authorized public health-related action, in
50 relation to a specified principal individual or contact individual,
51 where and only to the extent necessary to protect the public health; or
52 (c) the investigation, prosecution or defense of a civil or legal
53 action for a violation of this title; provided that if the use is initi-
54 ated by a party other than the principal individual or contact individ-
55 ual who is the subject of the contact tracing information, the informa-
56 tion must be highly material and relevant for the purpose.
A. 10500--C 3
1 § 2181. COVID-19 contact tracing; confidentiality. 1. (a) All contact
2 tracing information shall be kept confidential by any contact tracer and
3 contact tracing entity, and may not be disclosed except as necessary to
4 carry out contact tracing or a permitted purpose.
5 (b) Where a contact tracer or contact tracing entity discloses contact
6 tracing information for a permitted purpose, the contact tracer or
7 contact tracing entity shall make a record of the disclosure, including
8 to whom it was made, which shall be part of the contact tracing informa-
9 tion.
10 2. (a) An individual may waive the confidentiality provided for by
11 this section, only by a written, informed and voluntary waiver, in plain
12 language and in a language understandable to the individual making the
13 waiver, and not part of any other document. The waiver shall state the
14 scope and limit of the waiver. If an individual lacks the capacity to
15 make a waiver, an individual authorized to consent to health care for
16 the individual, or the individual's legal representative, may make the
17 waiver. However, a waiver of confidentiality is not required to be
18 written if it is solely for the purpose of arranging or providing
19 support for the individual who is the subject of the contact tracing
20 information.
21 (b) A waiver of confidentiality under this section shall only apply
22 for the purpose of arranging or providing support if the individual who
23 is the subject of the contact tracing information provides voluntary
24 informed consent to the arranging or providing of the support.
25 3. A disclosure of contact tracing information authorized under this
26 section shall be limited in scope as to the identity of any individual,
27 the information to be disclosed, and the party to which disclosure may
28 be made, and as necessary to achieve the purpose of the disclosure under
29 this section, and shall not authorize re-disclosure except as explicitly
30 authorized by the terms of the waiver under this section. However, this
31 section does not bar disclosure of contact tracing information pertain-
32 ing to and identifying a principal individual or contact individual by
33 the individual who is identified.
34 4. (a) This section does not bar otherwise-lawful disclosure,
35 possession or use of contact tracing information, including aggregate
36 contact tracing information, that is de-identified. Disclosure,
37 possession or use under this subdivision shall only be for a public
38 health or public health research purpose.
39 (b) A person or entity may only possess or use de-identified contact
40 tracing information if the person or entity maintains technical safe-
41 guards and policies and procedures that prevent re-identification,
42 whether intentional or unintentional, of any individual, as may be
43 required by the commissioner (or the New York city commissioner of
44 health and mental hygiene in the case of contact tracing information
45 collected by or under authority of the New York city department of
46 health and mental hygiene or the New York city health and hospitals
47 corporation). The commissioner (or the New York city commissioner as
48 the case may be) shall require safeguards, policies and procedures under
49 this paragraph as the commissioner deems practicable.
50 (c) Disclosure, possession and use of de-identified contact tracing
51 information under this subdivision shall be only pursuant to approval by
52 the commissioner (or the New York city commissioner of health and mental
53 hygiene in the case of contact tracing information collected by or under
54 authority of the New York city department of health and mental hygiene
55 or the New York city health and hospitals corporation) specifying the
56 purpose, nature and scope of the disclosure, possession and use and
A. 10500--C 4
1 measures to ensure that it will comply with this section and the terms
2 of the approval.
3 5. No law enforcement agent or entity or immigration authority shall
4 be a contact tracer or contact tracing entity or engage in contact trac-
5 ing. This subdivision does not bar an individual who is associated with
6 a law enforcement entity or immigration authority from acting only as a
7 principal individual or contact individual.
8 6. No contact tracer or contact tracing entity may provide contact
9 tracing information to a law enforcement agent or entity or immigration
10 authority. Without consent under subdivision two of this section,
11 contact tracing information and any evidence derived therefrom shall not
12 be subject to or provided in response to any legal process or be admis-
13 sible for any purpose in any judicial or administrative action or
14 proceeding. However, this subdivision does not restrict providing infor-
15 mation, relating to a specified principal individual or contact individ-
16 ual, where and only to the extent necessary for a permitted purpose.
17 7. (a) The commissioner (or the New York city commissioner of health
18 and mental hygiene in the case of contact tracing information collected
19 by or under authority of the New York city department of health and
20 mental hygiene or the New York city health and hospitals corporation)
21 shall make regulations to require that contact tracing information
22 possessed, used or under the control of a contact tracer or contact
23 tracing entity shall be subject to technical safeguards and policies and
24 procedures for storage, transmission, use and protection of the informa-
25 tion. The regulations shall prevent possession, use or disclosure of
26 the contact tracing information not permitted by this title, and shall
27 be at least as or more protective than the safeguards, policies and
28 procedures the commissioner (or the New York city commissioner as the
29 case may be) provides for other confidential information.
30 (b) This paragraph applies where contact tracing information is
31 possessed or controlled by a contact tracer or contact tracing entity
32 that is a non-governmental individual or entity employed by or under
33 contract with a governmental entity, or an agent thereof. Within thirty
34 days of collecting or receiving the contact tracing information, the
35 non-governmental individual or entity shall (i) remove information from
36 its possession or control and deliver it to the appropriate governmental
37 contact tracing entity, retaining no copy of it; (ii) expunge the infor-
38 mation from its possession or control; or (iii) de-identify the informa-
39 tion. However, the expungement or de-identification of particular
40 contact tracing information may be postponed for up to fifteen days
41 while the contact tracer or contact tracing entity is actively engaged
42 in contact tracing using that information, provided that the principal
43 individual or contact individual to whom it pertains gives voluntary
44 informed consent. The disclosure, possession and use of the de-identi-
45 fied contact tracing information shall be subject to subdivision four of
46 this section.
47 § 2182. Regulations. The commissioner shall make regulations imple-
48 menting this title.
49 § 2. This act shall take effect immediately.
