Recent New York Court of Appeals Decision Impacts Use of Patient Medical Records in Assisted Outpatient Treatment Proceedings

Posted by Marc A. Antonucci on February 23, 2012

In a prior blog post, I discussed the benefits of, and procedure for obtaining, Assisted Outpatient Treatment (AOT).  The New York Court of Appeals last year issued a decision In the Matter of Miguel v. Barron that may have implications for mental health providers during the AOT application process and perhaps for other mental hygiene related proceedings. 

In Miguel, the New York City Department of Health and Mental Hygiene (the Department) applied to the court for AOT for patient Miguel M.  During the court hearing, the Department offered into evidence the medical records from a hospital that treated Miguel M. for the purpose of demonstrating that he had been admitted to a mental health facility at least twice within the preceding 36 months as a result of his lack of compliance with treatment (a necessary requirement for AOT). The medical records were admitted into evidence over Miguel M.’s objection and testimony about their contents was permitted. The testimony revealed that the treating hospital had furnished his medical records in response to an informal request by the Department, but that Miguel M. had neither consented to the disclosure nor was he given notice of the Department’s request. 

The case made its way to the Court of Appeals, which analyzed the privacy protections afforded to patients like Miguel pursuant to the Health Insurance Portability and Accountability Act (HIPAA) and New York State law. In particular, the Court of Appeals reviewed the HIPAA Privacy Rule set forth at 45 C.F.R., Parts 160 and 164, and the exceptions that permit disclosure of medical records without patient authorization for purposes of “public health” and “treatment.”  The Court concluded that neither exception permitted the disclosure of Miguel M.’s medical records in the absence of his consent.  Ultimately, the Court held that the Department should have obtained Miguel’s medical records by court order or by service of a subpoena with notice to Miguel M.  

The Court’s ruling in Miguel may present administrative and legal challenges to providers that treat patients with mental illnesses, and could extend beyond AOT proceedings to hearings for retention and treatment over objection. Providers cannot rely on the “treatment” exception to the HIPAA Privacy Rule to obtain patient records.  Rather, in the event that a patient refuses to consent to the disclosure of his or her medical records, the provider must (i) serve a subpoena and/or (ii) apply to the court for an order directing the disclosure of the records.  Either option will result in the facility incurring legal expenses.  However, failure to implement one of these methods may result in the preclusion of those medical records, and their contents, at the patient’s hearing.

Understanding Mental Hygiene Law in New York - Assisted Outpatient Treatment

Posted by Marc A. Antonucci on August 25, 2011

Individuals with mental illnesses often require multiple hospitalizations during their lifetime.  Many patients thrive in the hospital setting where professionals manage their treatment and medications.  Unfortunately, some patients do not voluntarily continue their treatment upon discharge from the hospital.  As a result, their behavior decompensates, thus necessitating another hospitalization.  New York State Mental Hygiene Law provides for assisted outpatient treatment (commonly known as “Kendra’s Law”), which is designed to help individuals with mental illnesses function successfully out of the hospital.  The goals of the law are to provide the oversight necessary for a less restrictive alternative to involuntary hospitalization and to avoid the “revolving door” of multiple hospitalizations.

Overview

Kendra’s Law authorizes court-ordered assisted outpatient treatment (AOT) for persons with mental illness who, in view of their treatment history and present circumstances, are unlikely to survive safely in the community without supervision.  AOT refers to services that a person may be required to receive in the community, including case management services, medication, drug testing, educational and vocational training, group therapy, substance abuse treatment and counseling, and supervision of living arrangements.  Individuals in the community, or those about to return to the community from hospitals, who are suffering from mental illness and are unlikely to survive safely without supervision, may be required to accept AOT if a court determines that the eligibility criteria discussed below are met and that AOT is the least restrictive alternative for the patient.

Eligibility

To be eligible for AOT, an individual must meet the following criteria:

  • Be at least 18 years old and have a mental illness;
  • Be unlikely to survive safely in the community without supervision, based on a clinical determination;
  • Have a history of lack of compliance with treatment that has lead to
    (a) at least 2 hospitalizations for mental illness in the preceding 36 months, or (b) resulted in 1 or more acts of violence toward self or others, or threats of serious physical harm toward self or others, within the preceding 48 months (when calculating the 36 month or 48 month “look-back” period, the duration of the current hospitalization, or of any hospitalization which ended in the 6 months immediately preceding the filing of the petition, is excluded);
  • Be unlikely to voluntarily participate in the treatment necessary to allow the person to live safely in the community;
  • In view of the person’s treatment history and current behavior, be in need of AOT to avoid a relapse or deterioration that would likely result in serious harm to the person or others; and
  • Be likely to benefit from AOT.

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