BILL NUMBER: S5623

SPONSOR: STAVISKY
 
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:

The bill enhances 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 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 amends Education Law § 6508 to authorize 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, to 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 any further 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 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.