BILL NUMBER:S5791

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:

In 2011 and 2012, the Senate introduced S.4630. The bill passed the
Senate in 2011 and 2012; however, no companion bill was introduced in
the Assembly. In 2013 and 2014, the Senate introduced S.5572. The bill
was referred to the Higher Education Committee and no further action
was taken and no companion bill was introduced in the Assembly.

Effective date:

The bill would take effect immediately.