Relates to access to patient or client records in the investigation and prosecution of professional licensing and misconduct proceedings

Summary of provisions

Section 1 of the bill would clarify that the professional conduct officer of OPD, or his or her representatives, in any Investigation or proceeding by the department acting within the scope of its authorization, may obtain and examine records of patients or clients. Such records would be obtained by SED without the consent of the patient or client, but would be subject to strict confidentiality requirements. The bill would prohibit the disclosure of such records without the consent of the patient or client except to the extent necessary for the proper function of the department and would specifically prohibit disclosure of the name of the patient or client, without consent. Any other use or dissemination of information from such records by any person would be prohibited, unless it is pursuant to a valid court order or otherwise authorized by law.

§2 of the bill would be the effective date.

Statement in support of the bill

The proposed amendment to Education Law §6506(8) addresses a long-standing issue which goes to the heart of any investigation of allegations of professional misconduct, namely, the ability of the investigating agency, in this case, OPD, to obtain records from a professional licensee or entity without having to obtain patient or client consent for the release of said records. The proposed amendment follows the language of Public Health Law (PHL) §230(10)(1) which allows BPMC, the disciplinary authority for physicians in New York State, to examine and obtain records of patients in any investigation or proceedings by the board acting within the scope of its authority.

OPD is statutorily responsible for investigating and prosecuting alleged violations of professional misconduct pursuant to Education

Law §6507(h). OPD is required to investigate every complaint which alleges conduct constituting professional misconduct. OPD is also responsible for investigating the good moral character of applicants for professional licensure and prosecuting proceedings to deny licensure based upon lack of good moral character.

In carrying out its statutory responsibilities, OPD has been facing increasing resistance on the part of professional licensees and healthcare facilities when requesting patient/client records integral to an investigation of alleged professional misconduct. Although not universal, there appears to be a trend, especially among hospital general counsel, and by attorneys representing professional licensees, to refuse OPD's request for patient/client records, citing OPD's lack of a release from the patient/client.

Education Law §6507(c) provides OPD with the authority to issue subpoenas as part of its investigation. However, in at least one case, this power has been found to be limited. In Adams v. New York University Medical Center, n.o.r., Sup Ct, NY County, 1992, Index No. 43324/92., NYU notified OPD, pursuant to its responsibility under PHL §2803-e, of possible professional misconduct by a male registered nurse for sexually abusing an eighteen year old female patient that had the mental development of a twelve year old. The patient was not identified by NYU. During the course of its investigation, OPD asked NYU for the records of this patient and NYU refused, stating the patient's family would not agree to release of the records, and that NYU could not breach the patient's confidentiality because her records were confidential pursuant to CPLR §4504(a). OPD issued a subpoena and NYU refused to comply. Subsequently, OPD brought an action in New York County Supreme Court to compel production of the records under the provision of PHL §2803-e(2) stating the facility, as part of its statutory notification, must provide OPD with "such other information as the education department... shall require." NYU moved to quash the subpoena and the court upheld NYU's motion, stating that in the absence of a specific statutory mandate like Public Health Law §230(10)(1), the confidentiality and privilege of patient records could not be breached. As a result, no professional discipline action was taken against the licensee.

If the rationale of Adams were to be adopted by other courts, it would impair any OPD investigation involving an examination of patient/client records where the patient/client does not waive confidentiality or is unable to be identified.

Federally, the regulations implementing the Health Information Portability and Accountability Act of 1996 (HIPAA, Pub. L No. 104-191,110 Stat. 1936) provide an exemption for disclosure to a state officer for the investigation of a potential violation of law, pursuant to an administrative request, including administrative subpoenas, discovery requests or other lawful processes (45 C.F.R. 164.512 (e),(f). Despite this exemption from HIPAA that allows disclosure of patient records in professional discipline and licensing investigations and proceedings, as the Adams case illustrates, without the enactment of language parallel to that of Public Health Law §230(10)(1), OPD may face resistance to disclosure

or such records that would impair its ability to protect the public by carrying out its statutory responsibilities of fully investigating and prosecuting allegations of professional misconduct by licensed professionals and investigating and prosecuting good moral character proceedings.

Budgetary implications of the bill

No additional costs would be associated with this legislation.

Prior legislative history

None.

Effective date

The bill would take effect immediately.