May 11, 2009
In the Matter of the Application of James B. and Patricia B., Petitioners, Pursuant to Article 81 of the Mental Hygiene Law For the Appointment of a Guardian of the Person And Property of Jamie B. An Alleged Incapacitated Person, Respondent.
Bruce J. McKeegan, Esq., Attorney for Delaware ARC
Tatiana Neroni, Esq., Attorney for Petitioner
Larisia Obolensky, Esq., Attorney for Respondent
Richard J. Wenig, Esq., Mental Hygiene Legal Service
Hon. Eugene E. Peckham, Acting Supreme Court Justice
This is a motion to quash an information subpoena issued by the petitioner pursuant to MHL §81.23 in this Article 81 guardianship proceeding. The subpoena was served upon the Delaware County ARC, a chapter of NYSARC, Inc. which has moved to quash on the grounds and to the extent that its records are confidential medical records. This appears to be a case of first impression in New York.
ARC is an agency certified by the New York State Office of Mental Retardation and Developmental Disabilities. As such ARC is required to maintain the confidentiality of patient records pursuant to MHL §33.13. The services provided by ARC are funded by the Medicaid program and its records of services to Jamie B. include confidential medical and mental health information.
The Health Insurance Portability and Accountability Act (HIPAA) also requires healthcare providers to maintain the confidentiality of their patient's records. ARC is such a health care provider. 42 U.S.C. §1395X(u); 45 C.F.R. §160.103. Patient records can only be released upon authorization by the patient or court order. 45 C.F.R. §508 and 512(e).
In similar fashion, the courts have repeatedly held that the doctor patient privilege applies in Article 81 proceedings. Thus the information obtained by a treating physician is maintained as confidential. CPLR §4504. The privilege protecting the confidential physician records can only be waived in a contested matter if the AIP consents or if the AIP placed his or her medical condition in issue. Matter of Rosa B-S, 1 A.D.3d 355 (2d Dept 2003); Matter of Marie H, 25 A.D.3d 704 (2d Dept 2006); Matter of Kufeld, 51 A.D.3d 483 (1st Dept 2008); Matter of Q.E.J., 14 Misc.3d 448 (Sup. Ct. Kings Co. 2006); Matter of A.G., 6 Misc.3d 447 (Sup. Ct. Broome Co. 2004).
The analogous confidential medical records maintained by ARC should also be released in this contested Article 81 proceeding only upon the AIP's consent or court order. The AIP has not consented and no showing has been made as to why a court order should issue.
Particularly this is so where petitioner's burden of proving lack of capacity can be met by other means. Medical testimony is not required in an Article 81 proceeding. Matter of Bess Z, 27 A.D.3d 568 (2d Dept 2006); Matter of Rosa B-S; supra; Matter of Marie H, supra; Matter of Q.E.J., supra; MHL §81.12. The petitioner's burden can be met by testimony from family members, nurses aides, other medical personnel not covered by privilege, friends of the AIP, etc.
The ARC also argues that the information subpoena powers set forth in MHL §81.23 do not apply to medical records. MHL §81.23(b)(5) provides that the person subpoenaed provide petitioner's attorney with "information concerning the financial affairs of the incapacitated person." There is nothing in the legislative history of Article 81 to indicate the subpoena power is intended to extend beyond financial information and records. See, McKinney's Cons. Laws of NY, Book 34A, MHL §81.23, Law Revision Commission Comments.
On the other hand, the fact that the statute provides that the Court Evaluator may be given authorization by the court to inspect medical records indicates it was not the legislature's intent to give petitioner's attorney that power. MHL §81.09(d). Rather the difference in the language indicates the intention was for the Court Evaluator to be able to view the AIP's medical records and for petitioner's attorney to be able to subpoena financial records.
For all the foregoing reasons, the subpoena issued to ARC by petitioner's attorney is quashed insofar as the ARC is not required to produce the AIP's medical records. Any financial information in the ARC files or other information that does not contain medical or mental health information shall be delivered in response to the subpoena.