A04446 Summary:

BILL NOA04446
 
SAME ASSAME AS S00624
 
SPONSORSchimminger
 
COSPNSRJaffee, Otis, Simotas, Englebright, Gunther, Cook, Bronson
 
MLTSPNSRMagee, Markey, Peoples-Stokes, Perry, Skartados, Steck, Thiele
 
Amd S4504, CPLR
 
Relates to the mental condition of a victim.
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A04446 Actions:

BILL NOA04446
 
02/02/2015referred to codes
01/06/2016referred to codes
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A04446 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4446
 
SPONSOR: Schimminger (MS)
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to the mental condition of a victim   PURPOSE OF THE BILL: 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.   SUMMARY OF SPECIFIC PROVISIONS: § 1- Amends § 4504 of the Civil Practice Law to add a new subdivision (e) 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. § 2- Effective date.   JUSTIFICATION: In September of 2013 the District Attorneys Association of the State of New York released a report, "Report of the New York State White Collar Crime Task Force," that identified several obstacles facing prosecutors when dealing with elder abuse cases. This legislation is part of a five-bill legislative package aimed to address those obstacles. An elderly victim's medical records may be required to prove the exist- ence of a mental disability that demonstrates the incapacity to consent, and are certainly crucial evidence in that regard. The experience of Task Force members in seeking to obtain these records is that in some areas of New York State health care providers produce medical records in response to subpoenas duces tecum 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 (Sup. Ct. Suffolk Co., Grand Jury No. 0901954). Although victims in other types of cases routinely waive their privilege so that prosecu- tors 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 Task Force therefore recommends amending CPLR 4504 to allow a prosecutor to obtain medical records with a subpoe- na, 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 enforce- ment purposes.   PRIOR LEGISLATIVE HISTORY: 2013-2013: A.8778 /S.7179;   FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect immediately.
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A04446 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4446
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 2, 2015
                                       ___________
 
        Introduced  by M. of A. SCHIMMINGER, JAFFEE, OTIS, SIMOTAS, ENGLEBRIGHT,
          GUNTHER, CLARK, COOK, BRONSON -- Multi-Sponsored by -- M. of A. MAGEE,
          MARKEY, PEOPLES-STOKES, PERRY, SKARTADOS, STECK, THIELE --  read  once
          and referred to the Committee on Codes
 
        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:
 
     1    Section  1.    Section  4504  of  the  civil practice law and rules is
     2  amended by adding a new subdivision (e) to read as follows:
     3    (e) Mental condition of a victim. Upon receipt of a grand jury subpoe-
     4  na issued pursuant to subdivision two of section 610.20 of the  criminal
     5  procedure  law  and  endorsed  by a judge of a superior court, a medical
     6  provider must, as indicated in this subdivision, provide  to  the  grand
     7  jury the medical records of the person named in the subpoena. A judge of
     8  a  superior  court  shall  endorse such a grand jury subpoena upon an ex
     9  parte sworn showing by a district attorney, or  other  prosecutor  where
    10  appropriate,  establishing (1) that there is reasonable cause to believe
    11  that the person in question is a mentally disabled person, and (2)  that
    12  there  is  reasonable  cause  to believe that the person in question has
    13  been the victim of financial exploitation. A person is  "mentally  disa-
    14  bled"  for  purposes of this subdivision when that person suffers from a
    15  mental disease, defect or condition which renders him or  her  incapable
    16  of  appraising  the  nature  of  the  conduct constituting the financial
    17  exploitation. Upon receipt  of  such  an  endorsed  subpoena  a  medical
    18  provider,  including  but  not  limited  to a physician, psychologist or
    19  nurse, shall be required to disclose information relating to the  mental
    20  or  cognitive  condition  of  the  person  in  question that the medical
    21  provider acquired in attending the person in  a  professional  capacity,
    22  and which was necessary to enable him or her to act in that capacity.
    23    § 2. This act shall take effect immediately.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01978-01-5
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