Senate Bill S8187

                                BILL NUMBER:S8187

TITLE OF BILL:

An act
to amend the education law, in relation to access to patient or client
records in the investigation and prosecution of professional
licensing and misconduct proceedings

PURPOSE OF THE BILL:

To enhance the ability of the State Education Department (SED) to
investigate complaints of professional misconduct and protect the
public by providing SED's Office of Professional Discipline (OPD)
with the same access to patient and client records for the purpose of
the investigation and prosecution of professional licensing and
misconduct proceedings under Title VIII of the Education Law as is
currently afforded the Board of Professional Medical Conduct (BPMC)
of the Department of Health in professional medical 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), (t)). 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.