Allow Access to Patient Records

Section 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 allega- tions of professional misconduct, namely, the ability of the investigat- ing 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(1 0) (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 profes- sional 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, healthcare facilities and in Family Court 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 subpoe- nas 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 develop- ment 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 Portabil- ity 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 admin- istrative 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 responsibil- ities of fully investigating and prosecuting allegations of professional misconduct by licensed professionals and investigating and prosecuting good moral character proceedings.

Similarly, the Department's ability to investigate court-appointed psychologists can be hampered because the records necessary to pursue such an investigation are, by law, private and open to inspection only upon peimission of the Family Court. To help eliminate this potential obstacle, this bill would give our professional conduct officers greater access to these court records.

Budgetary implications of the bill

No additional costs would be associated with this legislation.

Prior legislative history

In 2011 and 2012, the Senate introduced S.4630. The bill passed the Senate in 2011 and 2012. In 2013 and 2014, the Senate introduced S.5572 with no further action taken. In 2015, the Senate introduced and in 2016 passed S.5791. In 2017 and 2018, the Senate introduced S.2467 with no further action taken.

Effective date

The bill becomes law immediately.