Relates to the mental condition of a victim.
Ayes (51): Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Farley, Felder, Flanagan, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hoylman, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Nozzolio, O'Brien, O'Mara, Peralta, Ranzenhofer, Ritchie, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Stavisky, Stewart-Cousins, Tkaczyk, Valesky, Young, Zeldin
Nays (6): Gipson, Montgomery, Parker, Perkins, Rivera, Squadron
Excused (4): Espaillat, Hassell-Thomps, Kennedy, Smith
TITLE OF BILL: An act to amend the civil practice law and rules, in relation to the mental condition of a victim
To allow prosecutors to obtain medical records of mentally impaired victims of financial exploitation, without requiring a waiver from those very victims.
SUMMARY OF PROVISIONS:
Section 1 amends § 4504 of the Civil Practice Law to add a new subdivision (e) to allow prosecutors to obtain medical records of mentally impaired victims of financial exploitation, without requiring a waiver from those very victims
Section 2 states that this act shall take effect immediately
An elderly victim's medical records may be required to prove the existence of a mental disability that demonstrates the incapacity to consent, and are certainly crucial evidence in that regard. In some areas of New York State health care providers produce medical records in response to subpoenas duces tecurn issued by grand juries. In others, however, providers refuse to comply with subpoenas on the grounds that doing so would violate the physician-patient privilege codified in CPLR 4504. Although victims in other types of cases routinely waive their privilege so that prosecutors can obtain crucial medical records, in the case of a mentally impaired victim that may be impossible. Such a victim, of course, cannot consent to waiving her medical privilege any more than she can consent to having her property taken. As a result, law enforcement efforts against elder fraud have suffered.
As the Court of Appeals has recognized, "the purpose of the privilege is to protect the patient, not to shield the criminal" (Matter of Grand Jury Proceedings (Doe), 56 N.Y.2d 348, 352-53 (1982)). For that reason, it is plainly in the public interest to allow courts to order the production of the records of mentally-impaired victims. Because the privilege is a creature of statute, such change can only come from the Legislature (Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130, 134 (1983)). The bill would amend CPLR 4504 to allow a prosecutor to obtain medical records with a subpoena, endorsed by the court, based upon a showing that the patient suffers from a mental disability, and that the patient has been the victim of a crime.
This proposal would not run afoul of the Health Insurance Portability and Accountability Act ("HIPAA"), The HIPAA privacy rule makes exceptions for judicial and administrative proceedings, and law enforcement purposes.
This act shall take effect immediately
STATE OF NEW YORK ________________________________________________________________________ 7179 IN SENATE May 2, 2014 ___________Introduced by Sen. VALESKY -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, in relation to the mental condition of a victim THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 4504 of the civil practice law and rules is amended by adding a new subdivision (e) to read as follows: (E) MENTAL CONDITION OF A VICTIM. UPON RECEIPT OF A GRAND JURY SUBPOE- NA ISSUED PURSUANT TO SUBDIVISION TWO OF SECTION 610.20 OF THE CRIMINAL PROCEDURE LAW AND ENDORSED BY A JUDGE OF A SUPERIOR COURT, A MEDICAL PROVIDER MUST, AS INDICATED IN THIS SUBDIVISION, PROVIDE TO THE GRAND JURY THE MEDICAL RECORDS OF THE PERSON NAMED IN THE SUBPOENA. A JUDGE OF A SUPERIOR COURT SHALL ENDORSE SUCH A GRAND JURY SUBPOENA UPON AN EX PARTE SWORN SHOWING BY A DISTRICT ATTORNEY, OR OTHER PROSECUTOR WHERE APPROPRIATE, ESTABLISHING (1) THAT THERE IS REASONABLE CAUSE TO BELIEVE THAT THE PERSON IN QUESTION IS A MENTALLY DISABLED PERSON, AND (2) THAT THERE IS REASONABLE CAUSE TO BELIEVE THAT THE PERSON IN QUESTION HAS BEEN THE VICTIM OF FINANCIAL EXPLOITATION. A PERSON IS "MENTALLY DISA- BLED" FOR PURPOSES OF THIS SUBDIVISION WHEN THAT PERSON SUFFERS FROM A MENTAL DISEASE, DEFECT OR CONDITION WHICH RENDERS HIM OR HER INCAPABLE OF APPRAISING THE NATURE OF THE CONDUCT CONSTITUTING THE FINANCIAL EXPLOITATION. UPON RECEIPT OF SUCH AN ENDORSED SUBPOENA A MEDICAL PROVIDER, INCLUDING BUT NOT LIMITED TO A PHYSICIAN, PSYCHOLOGIST OR NURSE, SHALL BE REQUIRED TO DISCLOSE INFORMATION RELATING TO THE MENTAL OR COGNITIVE CONDITION OF THE PERSON IN QUESTION THAT THE MEDICAL PROVIDER ACQUIRED IN ATTENDING THE PERSON IN A PROFESSIONAL CAPACITY, AND WHICH WAS NECESSARY TO ENABLE HIM OR HER TO ACT IN THAT CAPACITY. S 2. This act shall take effect immediately.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13770-01-4