APPEAL by Miguel M., a/k/a Miquel M., in a proceeding pursuant to Mental Hygiene Law § 9.60 to authorize assisted outpatient treatment, from an order and judgment (one paper) of the Supreme Court (David Elliot, J.), dated December 13, 2007, and entered in Queens County, which, upon the denial of his oral motion in limine to preclude the admission into evidence of his clinical records obtained by the petitioner, as well as testimony relating thereto, and after a hearing, inter alia, granted the petition. Mental Hygiene Legal Service, Mineola, N.Y. (Sidney Hirschfeld, Scott M. Wells, and Dennis B. Feld of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Tahirih M. Sadrieh of counsel), for respondent.
The opinion of the court was delivered by: Belen, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON and ARIEL E. BELEN, JJ.
On this appeal we are principally asked to determine whether, in a proceeding pursuant to Mental Hygiene Law § 9.60 (hereinafter Kendra's Law)*fn1 for an order authorizing Assisted Outpatient Treatment (hereinafter AOT), a physician may obtain clinical records without the subject individual's authorization or without a court order under certain exceptions set forth in regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (hereinafter HIPAA) (Public L 104-191, 110 US Stat 1936  codified as amended in various sections of titles 18, 26, 29, and 42 of the United States Code; 45 CFR parts 160, 164 [hereinafter the HIPAA Privacy Rule]), and thereafter seek to introduce these records into evidence at a Kendra's Law AOT proceeding. We find that HIPAA authorizes such disclosures to a physician as part of an AOT proceeding.
The petitioner Charles Barron, M.D., Director of the Department of Psychiatry at Elmhurst Hospital Center (hereinafter Elmhurst), commenced this proceeding pursuant to Kendra's Law for an order authorizing AOT for Miguel M., a/k/a Miquel M. (hereinafter Miguel M.). At the hearing before the Supreme Court held in accordance with Kendra's Law (see Mental Hygiene Law § 9.60[h]), Dr. Barron, in support of his petition, presented the testimony of Dr. Daniel Garza, the Director of AOT at Elmhurst. In his direct testimony, Dr. Garza stated that among his duties as Director of AOT at Elmhurst, he investigates and evaluates referrals to the Elmhurst AOT program. Dr. Garza explained that upon his evaluation of Miguel M. on October 19, 2007, and upon his review of clinical records of Miguel M.'s visits to Elmhurst dated January 18, 2007, and June 28, 2007, and the clinical records of Miguel M.'s hospitalization at Holliswood Hospital (hereinafter Holliswood) from June 29, 2007, through July 11, 2007, he diagnosed Miguel M. with schizoaffective disorder.
After the court received and marked the above clinical records into evidence as Dr. Barron's exhibits, Dr. Barron's counsel asked Dr. Garza how he came into the possession of Miguel M.'s clinical records from Elmhurst and Holliswood. He replied, "As part of the investigatory process under AOT, the office requests records from institutions that have treated the individuals under such investigations. We received these records [upon] a request for [Miguel M.] and the hospitalizations in question." Upon further inquiry by Dr. Barron's counsel, Dr. Garza explained that the clinical records identify Miguel M. by his full name, and at various places therein, the clinical records reference Miguel M.'s date of birth, his chart number at various institutions, his home address, his Medicaid number, and his Social Security number. He further explained that personnel from the respective hospitals certified the authenticity of the clinical records. Dr. Barron's counsel then moved to admit the records into evidence pursuant to CPLR 4518, the business records exception to the hearsay rule.
At that juncture, Miguel M.'s counsel made an oral motion in limine to preclude the admission of the clinical records into evidence and Dr. Garza's testimony with respect thereto on the grounds, inter alia, that the records were obtained (1) in violation of HIPAA regulations since at the time they were obtained, Miguel M. was "living out in the community"; and (2) without a HIPAA-compliant authorization executed by Miguel M. The court then permitted Miguel M.'s counsel to conduct a voir dire examination of Dr. Garza, during which he testified that he was not the director of medical records for either of the hospitals, never obtained Miguel M.'s authorization to obtain the clinical records, and had not obtained a court order permitting him to obtain the clinical records.
Dr. Barron opposed the motion, arguing that the hospitals' clinical records were admissible under CPLR 4518. The court interjected, explaining that Miguel M.'s motion did not contest the admissibility of the clinical records under CPLR 4518, but challenged "the legality of the process by which [Dr. Barron] obtained the records." Dr. Barron then asserted that Dr. Garza was entitled to obtain Miguel M.'s clinical records under Mental Hygiene Law § 3313(c)(12). In response, Miguel M.'s counsel conceded that although the Mental Hygiene Law permitted Dr. Garza to obtain the records without a court order or Miguel M.'s authorization, HIPAA preempted those portions of the Mental Hygiene Law concerning AOT investigations. Thus, according to Miguel M.'s counsel, before Dr. Garza could lawfully obtain the hospitals' clinical records, he was required to comply with the HIPAA Privacy Rule by obtaining either a court order or a HIPAA-compliant authorization executed by Miguel M. The court then adjourned the hearing and directed the parties to brief the issue.
When the parties returned to court three weeks later, upon their oral argument and trial memoranda, the court issued an oral decision and subsequent written order denying Miguel M.'s oral motion in limine and admitting the hospitals' clinical records into evidence. At the outset of its decision, the court held that it did not need to reach the issue of whether HIPAA preempted the Mental Hygiene Law with respect to the disclosure of a subject individual's clinical records during AOT investigations, since HIPAA authorized the disclosure of clinical records during an AOT investigation even without an authorization or court order. Addressing first whether disclosure of Miguel M.'s clinical records by the hospitals to Dr. Garza had been permitted under 45 CFR 165.512(a)(1), the court noted that such regulation provided that "[a] covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law" (45 CFR 164.512[a]). Moreover, as the court noted, the regulation requires a covered entity, in making disclosures "required by law" in judicial and administrative proceedings, such as an AOT proceeding, to receive "satisfactory assurance . . . from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request" or that "reasonable efforts have been made by such party to secure a qualified protective order" (45 CFR 164.512[e][A], [B]). Since it found no evidence that either Dr. Barron or Dr. Garza provided such assurances to either hospital, the court held that the disclosures to Dr. Garza were not proper under 45 CFR 164.512(a)(1).
The court then turned to the issue of whether the disclosures to Dr. Garza were proper under 45 CFR 164.512(b)(1)(i). In pertinent part, that provision states: "A covered entity may disclose protected health information without the written authorization of the individual . . . for the public health activities and purposes . . . to [a] public health authority that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury, or disability, including, but not limited to, the reporting of disease, injury, vital events such as birth or death, and the conduct of public health surveillance, public health investigations, and public health interventions" (emphasis added). The court held that Dr. Garza qualified as a "public health authority" as that phrase is defined in 45 CFR 164.501, and that the AOT program and a director of an AOT program qualified as a "public health intervention" and "public health investigation" as those phrases are used in 45 CFR 164.512(b)(1)(i). Accordingly, because the disclosures to Dr. Garza were authorized under 45 CFR 164.512(b)(1)(i), the court held that the subject clinical records were admissible and, therefore, denied Miguel M.'s motion in limine to preclude the admission of such records and related testimony.*fn2
At the continued hearing, the court, over Miguel M.'s "continuing objection," received the subject clinical records into evidence. Continuing his direct testimony, Dr. Garza testified that based on his evaluation of Miguel M. and his review of Miguel M.'s clinical records, which he received from the two hospitals, Miguel M. met the criteria for AOT: "[Miguel M.] had two hospitalizations over the last three years, due to noncompliance with treatment, specifically from January 18th through February the 12th of this year . He was hospitalized at Elmhurst after noncompliance with his outpatient medications, becoming irrational, agitated, hearing voices, believing that he was God, and exhibiting bizarre behavior, putting magazines in the refrigerator."Another hospitalization took place initially at Elmhurst and with a transfer to Holliswood Hospital beginning on June 28, , ending July 11, . Having again become noncompliant with his oral medications, becoming . . . agitated, screaming, chanting in Spanish, and expressing suicidal ideation." Dr. Garza further explained that upon reviewing with Miguel M. the details of each hospitalization, Miguel M. admitted that before each hospitalization, he had not complied with his prescribed medication regimen. Dr. Garza explained that the treatment plan he formulated for Miguel M., ...