HEALTH LAW SUPPLEMENT Autumn 2004

NEW HEALTHCARE RECORD SUBPOENA LAW NOT YET WIDELY KNOWN. It’s been almost a year since the new State law regulating subpoenas for healthcare records went into effect in New York (CPLR Section 3122, effective 9/1/03). Passed in the wake of the HIPAA Privacy Rule, the law, which regulates subpoenas duces tecum (“sapeena dookas teekum,” subpoenas for records and not testimony), requires that such subpoenas be accompanied by a signed patient authorization permitting the healthcare practitioner to release the records. The subpoena is also supposed to display in bold-face type directions to the healthcare practitioner not to comply with the subpoena unless it’s accompanied by an authorization. So far, it appears that not many attorneys know of the new law; they’re still issuing old-style subpoenas without the required authorizations and notices. Even some district attorneys apparently don’t know of the new law!

The law seems to direct healthcare practitioners to ignore subpoenas duces tecum for treatment records if no authorization is provided, but I can’t recommend taking that tack; there’s a risk, I think, that an order to show cause might be sought by the attorney issuing the subpoena and then legal representation for the practitioner would be necessary. Instead I would recommend that you or your attorney call, or better write, the attorney who issued the subpoena and tell him or her about the new law, the requirement of an authorization and your non-compliance with the subpoena (but compliance with the law.)

It’s still unclear whether a subpoena “so ordered” by a judge must also be accompanied by an authorization; one court has indicated it does. The law allows for “reasonable production expenses” which are either $.10 or $.75/per page; it depends on whether CPLR §8011 or PHL §18 takes precedence. I think the CPLR probably does ($.10/page) even though it’s based on costs from long ago that can no longer be considered “reasonable.”

NEW LICENSURE LAW FOR SOCIAL WORKERS NOW TAKING EFFECT. The new law, at several sections of New York Education Law, New York Insurance Law and Rules of the Board of Regents, takes effect on September 1, 2004. Previously social workers were certified as “Certified Social Workers” (CSW’s), which required a masters degree; with additional supervised training, CSW’s became eligible for a “P” (3 years) or “R” (6 years) endorsement which permitted them to bill insurance companies for psychotherapy. Now social workers will be licensed: with a masters degree they may become “Licensed Master Social Workers” (LMSW’s); with a masters degree plus 3 years additional supervised training they may become “Licensed Clinical Social Workers” (LCSW’s). The “R” credential will continue to be awarded after 6 years. The new law entails a change in terminology mostly, although it’s also a change from certification, which restricts the use of certain titles to certified persons, to licensure, which restricts certain activities to licensed persons. It’s part of the overall effort by New York State to restrict the practice of psychotherapy to licensed professionals. More information about the new law, including grandfathering of current CSW’s, can be found at www.op.nysed.gov/cswfaq.htm.

THERE MAY BE MANY NEW LICENSED MENTAL HEALTH PROFESSIONALS IN NEW YORK. The Office of the Professions of the State Education Department estimates that there will be anywhere from 30,000 to 300,000 masters level mental health professionals licensed in 2005 in one of the four new professions; mental health counseling, psychoanalysis, creative arts therapy and marriage and family therapy. The number will depend on how many currently unlicensed psychotherapists try to get “grandfathered” into the new professions. By way of comparison, there are currently in New York State about 10,000 psychologists, 40,000 social workers, and 74,000 physicians. Because of their numbers, the newly licensed professionals are likely to have an immediate and significant impact on mental healthcare in the State.

WHOSE RECORDS ARE THEY? When a practitioner leaves a PC, PLLC or partnership, there sometimes ensues a disagreement as to whether the departing professional has some proprietary interest in all of the medical records of the practice, i.e., including records of patients treated by others in the practice. A New York trial court recently held that a dentist leaving a partnership had an interest only in the medical records of patients he treated, i.e., only those with whom he had a doctor-patient relationship. Lewis v. Clement et. al., 766 NYS2d 296 (2003). Interestingly, the court based its opinion in part on the premise that a corporate entity can have no interest in patient records, a premise it borrowed from an earlier case that in fact had held that a regular business corporation illegally engaged in the corporate practice of medicine could have no interest in patient records. An alternative position is that PC’s and PLLC’s are authorized by the State to practice professions, so presumably they and all of their shareholders might have an interest in all of their patient records.

LAWYERS AS ADVOCATES. Our firm is often retained by healthcare practitioners at a point where they are accused of professional wrongdoing. Usually it’s in the context of a professional disciplinary proceeding, but it may be an ethical, staff privilege, insurance, malpractice or even criminal matter. Sometimes new clients are unaware of an important limitation of the role of attorneys as advocates. An attorney may not knowingly use perjured testimony or false evidence or participate in the creation or preservation of evidence when the lawyer knows or it’s obvious that the evidence is false. In other words, lawyers cannot knowingly allow a client to falsify evidence or present false evidence or perjury.* However, it is also essential that attorneys be provided with full information by their clients in order to adequately represent and defend them.

Because of this apparent contradiction, most lawyers give prospective clients, before asking them about the facts of a case, advice which includes that the attorney cannot knowingly use perjury or false evidence, and then a suggestion that the client nevertheless give the attorney all relevant information in the form of telling the lawyer of all incriminating “evidence” that the other side (prosecution) may present and all exculpatory “evidence” that might be available, without discussing “facts” as such. In this way, the attorney advises the client to give all relevant information without making unnecessary personal admissions. Of course, some clients wish to admit, or acknowledge that they cannot deny, wrongdoing, and in those cases, the lawyer’s job may be simpler.

*NB. This does not necessarily mean that the attorney must reveal to anyone that a client intends to commit perjury or present false evidence; in fact, it’s not clear from ethical canons what an attorney must do in that situation. Most attorneys withdraw from cases in such circumstances, and refer the client to another attorney.

INFORMATION IN THIS NEWSLETTER IS NOT LEGAL ADVICE FOR ANY PARTICULAR CLIENT OR SITUATION. CONSULT WITH AN ATTORNEY INDIVIDUALLY FOR LEGAL ADVICE REGARDING YOUR CIRCUMSTANCES.

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