BILL NUMBER:  S2467

 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 :

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
proceeding 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. Clarifies 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.

Section 2. Sets for the effective date.

 JUSTIFICATION :

The proposed amendment to education law section 6506(8) addresses a
longstanding 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 section 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 if its authority.

OPD is statutorily responsible for investigating and prosecuting
alleged violations of professional misconduct pursuant to education
law section 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 is 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 section 6507@ 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 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 section
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 section 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 section 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 section 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.F.
section 164.512(e), (0). 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
section 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.

 LEGISLATIVE HISTORY :

2013-14 S.5572;
2011-12 S.4630

 FISCAL IMPLICATIONS :

None

 EFFECTIVE DATE :
Immediately.