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.