BILL NUMBER: S6518

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 that is in response to
a complaint alleging professional misconduct, within the scope of its
authorization to obtain and examine unredacted records of patients or
clients in possession of health care facilities and professional
offices. 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 to
anyone not authorized by the department to participate in the investi-
gation, proceeding, or conference without the consent of the patient or
client and would specifically prohibit disclosure of the name of the
patient or client without consent, unless authorized by law. All other
uses or dissemination of information from such records by any person
would only be allowed if it is pursuant to a valid court order or other-
wise authorized by law.

Section 2 of the bill would be the effective date. Statement in

 
STATEMENT IN SUPPORT OF THE BILL:

The proposed amendment to Education Law § 6506(8) addresses a long-
standing issue that goes to the heart of any investigation of allega-
tions of professional misconduct: the ability of the investigating agen-
cy, 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 is similar to 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 that alleges
professional misconduct. OPD is also responsible for investigating the
good moral character of applicants for professional licensure and initi-
ating proceedings against licensees based upon a lack of good moral
character.

In carrying out its statutory responsibilities, OPD has been facing
increasing resistance from professional licensees, healthcare facilities
and Family Court personnel when requesting patient/client records inte-
gral to an investigation of alleged professional misconduct. Although
not universal, the Department has observed a trend, especially among
attorneys representing hospitals and professional licensees, to refuse
OPD requests for patient/client records, citing OPD's lack of a release
from the patient/client. The Department's ability to investigate court-
appointed psychologists has also been hampered because the records
necessary to pursue such an investigation are, by law, private and only
open to inspection upon permission of the Family Court. To help elimi-
nate this potential obstacle, this bill would give OPD's professional
conduct officers greater access to these court records.

Education Law § 6507(c) authorizes OPD to issue subpoenas as part of its
investigations. However, in at least one case, a court found this power
to be limited. In Adams v. New York University Medical Center, n.o.r.,
Sup Ct, NY County, 1992, Index No. 43324/92., New York University (NYU)
notified OPD, pursuant to its responsibility under PHL § 2803-e, of
possible professional misconduct by a male registered nurse who alleged-
ly sexually abused an eighteen year old female patient who 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
patient's records. NYU refused, stating that the patient's family would
not agree to release of the records and that her records were confiden-
tial pursuant to CPLR § 4504(a). NYU also refused to comply with a
subpoena issued by OPD.  Subsequently, OPD brought an action in New York
County Supreme Court to compel production of the records under PHL §
2803-e(2), arguing that the facility, as part of its statutory notifica-
tion duties, must provide OPD with "such other information as the educa-
tion department ... shall require." The court granted NYU's motion to
quash the subpoena, stating that in the absence of a specific statutory
mandate like PHL § 230(10)(0, NYU had no basis to disregard the confi-
dentiality and privilege of patient records. As a result, OPD was
precluded from imposing professional discipline against the licensee,
potentially putting other vulnerable patients at risk. 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.

Federal regulations implementing the Health Information Portability and
Accountability Act of 1996 (HIPAA, Pub. L No. 104-191, 110 Stat.  1936)
do not impose any legal bar to obtaining such records. HIPAA regulations
provide an exemption for disclosure to a state officer for the investi-
gation 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 Ç, (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 similar to that of
Public Health Law § 230(10)(1), OPD may continue to face resistance to
disclosure of patient records. This impairs OPD's ability to protect the
public by carrying out its statutory responsibilities of 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. 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.2469 with no
further action taken. In 2019 the Senate introduced and passed S.5623.

 
EFFECTIVE DATE:
The bill becomes law immediately.