Appellate Division Upholds Disclosure of Hospital Records Without Patient’s Permission

New York State Mental Hygiene Law section 9.60, also known as Kendra’s Law, allows New York courts to order mandatory assisted outpatient treatment for psychiatric patients. Courts may order a non-hospitalized psychiatric patient to take specific medications, undergo routine urine and blood testing, remain in specified residential living arrangements, and attend weekly counseling. A patient who fails to comply may be hospitalized involuntarily without the need for further court intervention.

Affirming a lower court order which relied on papers and argument by HPM&B partner Louise A. Derevlany, the Appellate Division has ruled that a municipal hospital’s director of community services may obtain a patient’s hospital records and offer them in support of an AOT petition without the patient’s prior authorization. The Appellate Division observed that HIPAA permits such ex parte disclosure to “[a] public health authority that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury, or disability . . . and the conduct of public health surveillance, public health investigations, and public health interventions.” See 45 CFR 164.512[b][1][i]. It held that the director of AOT at a municipal hospital qualifies as a “public health authority,” and that an AOT investigation qualified as a “public health investigation” or “public health intervention.” The appeal was handled by the New York City Law Department.

Further, the Appellate Division held that disclosure under Kendra’s Law is outside the scope of HIPAA’s preemption provision.

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