The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge
Counsel for non-party Chitra Shenoy, M.D. has filed a letter motion  to quash the subpoena served upon her by Defendant City of Long Beach for her deposition as well as for Plaintiff's medical records. Dr. Shenoy is a psychiatrist who has provided treatment to Plaintiff. Dr. Shenoy's attorney maintains that the subpoena should be quashed because (1) it was not accompanied by a HIPAA-compliant records release authorization, and (2) the physician-patient privilege, if it exists in this case, has not been waived. In the alternative, counsel argues that if Dr. Shenoy is required to provide her testimony at a deposition that he be paid expert witness fees for any testimony given.
Defendant City of Long Beach opposes the motion to quash the subpoena on the grounds that (1) HIPAA regulations do not support the arguments made by Dr. Shenoy's counsel, and that Defendant cured any deficiency by serving a second subpoena upon Dr. Shenoy on February 17, 2006, which specifically included a request for psychotherapy notes from Dr. Shenoy, and (2) Plaintiff has waived any physician-patient privilege by specifically placing his mental health in issue based upon substantial claims for emotional distress damages . Defendant's counsel also asserts that Dr. Shenoy is only entitled to the statutory witness fee and not expert fees for her deposition testimony. Plaintiff has not submitted any objection to the motion. Counsel for the City of Long Beach also requests that the Court direct the Plaintiff to sign certain modified authorizations or, alternatively, order Dr. Shenoy to produce all psychiatric records, including psychotherapy notes, if any, even without such authorization.
I also note that counsel for Dr. Shenoy has submitted a reply to Defendant's opposition . Replies are not permitted under Magistrate Judge James Orenstein's Individual Rules, nor under mine. Therefore, I am rejecting the reply submitted by counsel for Dr. Shenoy.
Having reviewed the submissions filed on these issues, as well as having reviewed the pleadings and prior history of this case as reflected in the docket, I will address these issues individually. First, counsel for Dr. Shenoy asserts that the subpoena should be quashed because it was not accompanied by a HIPAA-compliant authorization. Defendant City of Long Beach argues that this defect, if in fact there is a defect, was cured by the service of subsequent authorizations on February 17, 2006 which Defendant asserts are HIPAA-compliant. Copies of these authorization forms are attached to the motion as docket entry [66-5]. These forms are purported to be approved by the New York State Department of Health for the release of Protected Health Information ("PHI") pursuant to HIPAA. OCA Official Form No.: 960 has been commonly used as a standard records release authorization since changes were made to the HIPAA statute to help insure the privacy and protection of such records.
However, OCA Official Form No.: 960 was never intended to serve as a basis for authorizing the release of psychotherapy notes. The language of the form itself makes this clear -- in section 9(a) of Form 960, there is an option to designate what specific information is to be released. Directly adjacent to the second available check-off box, the following language appears:
Entire Medical Record, including patient histories, office notes (except psychotherapy notes), test results, radiology studies, films . . . (emphasis supplied).
Scratching out the word "except" and typing in the word "including," as Defendant City of Long Beach has done on the authorization form served upon Dr. Shenoy, does not transform OCA Form 960 into a HIPAA-compliant authorization for the release of psychotherapy notes. If the form were intended to provide an option for the release of psychotherapy notes, one could reasonably assume that such an option would appear on the form itself. It does not.
In fact, pursuant to the Code of Federal Regulations, one who is seeking both the medical records and psychotherapy notes of an individual, by subpoena or any other means, cannot combine those records requests in a single authorization or release document. Notably, 45 C.F.R. § 164.508(b)(3) (2006) provides as follows:
(3) Compound authorizations. An authorization for use or disclosure of protected health information may not be combined with any other document to create a compound authorization, except as follows:
(ii) An authorization for a use or disclosure of psychotherapy notes may only be combined with another authorization for a use or disclosure of psychotherapy notes . . .
This language makes clear that a release authorization for psychotherapy notes may not be combined with a release authorization for medical records, but must be done independently, as an individual, HIPAA-compliant, separately executed authorization. Samples of independent HIPAA-compliant authorization forms for the release of psychotherapy notes of a treating physician or mental health professional are available from a variety of agency resources as well as via the internet. Therefore, I find that the release authorizations completed and served upon Dr. Shenoy to date by Defendant City of Long Beach are not HIPAA-compliant and I decline to direct Plaintiff to execute the same. Accordingly, and solely for this reason, the motion by non-party Dr. Shenoy to quash the subpoena served upon him is GRANTED. However, in doing so, I note that counsel for Defendant City of Long Beach is free to serve Dr. Shenoy with a new subpoena that is HIPAA-compliant in this regard.
Second, counsel for the City of Long Beach states that the physician-patient privilege in this case has not been waived pursuant to New York Civil Practice Law and Rules 4504. However, counsel does not put forth any legal or factual basis for that assertion. So far as I am aware, Plaintiff to date has not disputed that he has put his mental condition in issue in this lawsuit. Nonetheless, Dr. Shenoy has the right, as Plaintiff's treating psychiatrist, to assert various reasons for preserving the confidentiality of Plaintiff's records, including psychotherapy notes, by means of a motion for a protective order. See Magee v. The Paul Revere Life Ins. Co., 172 F.R.D. 627, 635 (E.D.N.Y. 1997), citing, Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 458 (1983). Here, Dr. Shenoy asks that the subpoena for these records be quashed.
The averments of the Second Amended Complaint ("SAC") are significant in terms of resolving this issue. Specifically, in the factual allegations, Plaintiff alleges that he "was ostracized by the party leadership through [Defendants], who intentionally harassed, wrongfully discriminated, demoted, and caused Plaintiff to suffer emotional, physical and mental distress." SAC ¶ 21. Later in the factual recitation, Plaintiff states that he was injured "in his person, mental health, concept of self worth . . . by these overt violative actions set out above in that, as a direct and proximate result of all the wrongful acts of defendants, plaintiff has lost ...