{"id":2977,"date":"2020-05-11T17:48:26","date_gmt":"2020-05-11T17:48:26","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2977"},"modified":"2020-05-11T17:48:26","modified_gmt":"2020-05-11T17:48:26","slug":"unauthorized-disclosure-judicial-violation-of-mental-health-privacy","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2020\/05\/11\/unauthorized-disclosure-judicial-violation-of-mental-health-privacy\/","title":{"rendered":"Unauthorized Disclosure: Judicial Violation of Mental Health Privacy"},"content":{"rendered":"

(Source<\/em>)<\/a><\/span><\/p>\nBrandon Sharp<\/a><\/em> managed a gas company in East Texas. Healthy, in his thirties, Sharp rarely saw a doctor. And yet he owed thousands of dollars in medical bills. Sharp was the target of medical identity theft<\/a><\/em>, which victimizes tens of thousands<\/a><\/em> of people each year. Thieves steal patient information<\/a><\/em>, including names, Social Security numbers, addresses, and medical histories, and then submit fraudulent insurance claims for surgery and prescriptions<\/a><\/em>. Victims, like Sharp, face more than inconvenience: sometimes police arrest them instead of the thief for insurance fraud<\/a><\/em>, or their information is conflated with the thief\u2019s<\/a><\/em>, leading to misdiagnosis. Contrary to popular opinion, the most common mode of theft is not computer hacking or breaking and entering but unauthorized disclosure by providers<\/a><\/em>.\n\nSection 33.13<\/a><\/em> of New York\u2019s Mental Hygiene Law aims to prevent unauthorized disclosure. It prohibits providers from releasing patient information, specifically mental health records, absent an exception. A mental health record<\/a><\/em> includes \u201call pertinent documents relating to the patient\u201d about legal status, examination, care, and treatment. However, New York state courts routinely violate Section 33.13. Claimants often sue New York when a patient in a state hospital injures them. In these cases, New York courts have ordered hospitals to disclose \u201cnonmedical\u201d information from the patients\u2019 mental health record, in violation of Section 33.13.\n\nFollowing Section 33.13\u2019s passage in 1985, the New York Court of Claims decided Villano v. State<\/a><\/em> (1985). In lawsuits against New York, Villano<\/em> and its progeny determine when a court can order a provider to disclose mental health information. In Villano <\/em>(1985), a patient allegedly assaulted the claimant in a state hospital. The claimant requested the patient\u2019s \u201crecord as well as any incident reports involving attacks.\u201d The court ordered the hospital to release \u201cnonmedical data,\u201d including \u201creports of similar violent behavior,\u201d found in the patient\u2019s mental health record. But the court treated differently the \u201cmedical\u201d information found in the patient\u2019s record. It only ordered the release of this information after finding that \u201cthe interests of justice significantly outweigh[ed] the need for confidentiality.\u201d The New York Supreme Court Appellate Division, Second Department followed suit in Exelbert v. State<\/a><\/em> (1988). Like in Villano<\/em>, a claimant sued the state for alleged assault by a patient. The court inferred that the lower court appropriately ordered the release of the patient\u2019s nonmedical data without conducting an interests of justice analysis. Recent cases, Szmania v. State<\/a> <\/em>(2011), Johnson v. County of Nassau<\/a> <\/em>(2012), and Bellamy v. State of New York<\/a><\/em> (2016), affirmed Villano<\/em> and Exelbert<\/em>.\n\nBut Villano <\/em>and its progeny violate Section 33.13. First, New York courts can not subdivide a record into medical and nonmedical information. Section 33.13 treats a mental health record as a collective, because it includes \u201cany<\/em> information\u201d and \u201call <\/em>pertinent documents relating to a patient\u201d (emphasis added). According to Section 33.13, courts can order a provider to release patient information by finding \u201cthat the interests of justice significantly outweigh the need for confidentiality.\u201d Absent from this analysis is any lesser standard for releasing nonmedical information.\n\nSecond, even if a court could subdivide a record, Section 33.13 still extends to the allegedly nonmedical information disclosed in Villano <\/em>and its progeny. Nonmedical information, including that \u201crelating to any prior assaults or similar violent behavior,\u201d is data concerning \u201can identifiable patient\u201d and his \u201cadmission . . . care, and treatment.\u201d Otherwise, a facility would not need to maintain this information. The facility maintains it, because a record must \u201cinclude all pertinent documents relating to a patient.\u201d\n\nThird, the only applicable exception that allows a court to order this release is by finding \u201cthat the interests of justice significantly outweigh the need for confidentiality.\u201d Yet, courts only apply this analysis to medical data after<\/em> it categorizes information as medical or nonmedical and discloses the nonmedical data.\n\nFinally, Villano<\/em> and its progeny cite pre-1985 decisions that form distinguishing medical from nonmedical information. In Mayer v. Albany Medical Center Hospital<\/a> <\/em>(1971), a patient at a state hospital allegedly assaulted the claimant who then sought the patient\u2019s record. The court found that the claimant was \u201centitled to all nonmedical data pertaining to prior assaults or attempted assaults by the patient, including the time and place and surrounding circumstances, together with the date the information came within the knowledge of [the] defendant [as well as] the length and number of times the patient was confined to the defendant’s institution.\u201d Later decisions, including Homere v. State<\/a><\/em> (1973), Katz v. State<\/a><\/em> (1973), Moore v. St. John\u2019s Episcopal Hospital<\/a> <\/em>(1982), and Brier v. State<\/a><\/em> (1983), reaffirmed Mayer.<\/em>\n\nBut New York courts apply this pre-Section 33.13 \u201cnarrow line of cases\u201d without<\/em> analyzing whether Section 33.13 permits the medical-nonmedical distinction. In other words, the courts simply apply pre-1985 caselaw without examining how Section 33.13 affects it. This pre-Section 33.13 caselaw is shaky legal ground. It began in 1971 with Mayer<\/em>, where the court rationalized the medical-nonmedical distinction using policy without citing a statute or caselaw. Even pre-Section 33.13, the line of reasoning is unclear.\n\nInstead of its current reading, New York courts must narrowly read Section 33.13. First, they should narrowly apply Section 33.13\u2019s exceptions. Rather than creating an exception without textual basis, they should only order a provider to release patient information when a textual exception applies. Second, New York courts should extend Section 33.13 to all information in a patient\u2019s record. Rather than distinguish medical from nonmedical information, the courts should analyze Section 33.13\u2019s effect on existing caselaw. They should then treat patient information as a collective. Third, in cases like those summarized above, courts should only order information to be released when \u201cthe interests of justice significantly outweigh the need for confidentiality.\u201d Rather than creating an exception without textual basis that violates privacy, New York courts should only disclose information from mental health records when the facts meet Section 33.13\u2019s standard. Otherwise, courts risk aiding medical identify thieves, like Sharp\u2019s, who take advantage of already all-too-common unauthorized disclosure.\n\n \n\n\"Maloney,Ryan\"About the Author: Ryan Maloney is a rising third year at Cornell Law School. He is the Vice Chancellor for External Competitions for the Moot Court Board and a member of the Cornell Law Student Association. In 2013, he earned a bachelor’s degree in History from the University of Virginia.\n\n \n\n \n\nSuggested Citation: Ryan Maloney, <\/i>Unauthorized Disclosure: Judicial Violation of Mental Health Privacy<\/em>, Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter, (May 11, 2020), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/unauthorized-disclosure-judicial-violations-of-mental-health-privacy\/.<\/a>","protected":false},"excerpt":{"rendered":"

(Source) Brandon Sharp managed a gas company in East Texas. Healthy, in his thirties, Sharp rarely saw a doctor. And yet he owed thousands of dollars in medical bills. Sharp was the target of medical identity theft, which victimizes tens of thousands of people each year. Thieves steal patient information, including names, Social Security numbers,…<\/p>\n","protected":false},"author":1,"featured_media":2978,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[15,18,19,21,23,24,25,27,28],"tags":[771,879,1019,1167,1264],"class_list":["post-2977","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-authors","category-feature","category-feature-img","category-spotters","category-note-adaptation","category-notes","category-policycontributor-blogs","category-recent-stories","category-student-blogs","tag-healthcare-fraud","tag-jlpp","tag-mental-health","tag-patient-privacy","tag-public-policy"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2977","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2977"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2977\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2978"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2977"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2977"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2977"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}