senate Bill S4630

2011-2012 Legislative Session

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

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Archive: Last Bill Status - Passed Senate


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
May 14, 2012 referred to higher education
delivered to assembly
passed senate
Apr 25, 2012 advanced to third reading
Apr 19, 2012 2nd report cal.
Apr 18, 2012 1st report cal.533
Jan 04, 2012 referred to higher education
returned to senate
died in assembly
Jun 15, 2011 referred to education
delivered to assembly
passed senate
May 09, 2011 advanced to third reading
May 04, 2011 2nd report cal.
May 03, 2011 1st report cal.513
Apr 14, 2011 referred to higher education

Votes

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Apr 18, 2012 - Higher Education committee Vote

S4630
15
1
committee
15
Aye
1
Nay
1
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Higher Education committee vote details

Higher Education Committee Vote: Apr 18, 2012

nay (1)
aye wr (1)
excused (1)

May 3, 2011 - Higher Education committee Vote

S4630
16
1
committee
16
Aye
1
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
show Higher Education committee vote details

Higher Education Committee Vote: May 3, 2011

nay (1)
excused (1)

S4630 - Bill Details

Current Committee:
Law Section:
Education Law
Laws Affected:
Amd §6506, Ed L

S4630 - Bill Texts

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

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BILL NUMBER:S4630

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),(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.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4630

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             April 14, 2011
                               ___________

Introduced  by  Sen.  FLANAGAN  --  (at  request  of the State Education
  Department) -- read twice and ordered printed, and when printed to  be
  committed to the Committee on Higher Education

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

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 8 of section 6506  of  the  education  law,  as
amended  by  chapter  866  of  the  laws  of 1980, is amended to read as
follows:
  (8) Designate a professional conduct officer, who shall be  the  chief
administrative  officer  of the office of the professions, or his desig-
nee,  in  connection  with   professional   licensing   and   misconduct
proceedings  and criminal matters, such officer to be empowered to issue
subpoenas and administer oaths  in  connection  with  such  proceedings.
NOTWITHSTANDING  ANY PROVISION OF LAW TO THE CONTRARY, SAID PROFESSIONAL
CONDUCT OFFICER, OR HIS OR HER REPRESENTATIVES, MAY EXAMINE  AND  OBTAIN
RECORDS OF PATIENTS OR CLIENTS IN ANY INVESTIGATION OR PROCEEDING BY THE
DEPARTMENT  ACTING WITHIN THE SCOPE OF ITS AUTHORIZATION. UNLESS EXPRESS
CONSENT IS OBTAINED FROM THE  PATIENT  OR  CLIENT,  ANY  INFORMATION  SO
OBTAINED SHALL BE CONFIDENTIAL AND SHALL NOT BE FURTHER DISCLOSED EXCEPT
TO  THE  EXTENT NECESSARY FOR THE PROPER FUNCTION OF THE DEPARTMENT, AND
THE NAME OF THE PATIENT OR CLIENT MAY NOT BE DISCLOSED BY THE DEPARTMENT
OR ITS EMPLOYEES AT ANY STAGE OF THE PROCEEDINGS UNLESS THE PATIENT  HAS
EXPRESSLY  CONSENTED. ANY OTHER USE OR DISSEMINATION OF INFORMATION FROM
SUCH RECORDS BY ANY PERSON BY ANY MEANS, UNLESS  IT  IS  PURSUANT  TO  A
VALID COURT ORDER OR OTHERWISE AUTHORIZED BY LAW, SHALL BE PROHIBITED;
  S 2. This act shall take effect immediately.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10232-01-1

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