Board Bulletins and Subject Numbers

April 12, 2004

Due to the recent amendments to the Civil Practice Law and Rules ("CPLR"), the Board will clarify the procedures for subpoenaing medical records in workers' compensation proceedings.

Relevant Statutes and Regulations

Workers' Compensation Law (""WCL") §119 provides that:

A subpoena or subpoena duces tecum may be signed and issued by the chairman, a member of the board, referee or such officer as may be designated by the chairman. A subpoena or subpoena duces tecum may also be signed and issued by any attorney and counselor at law appearing before the board on behalf of a claimant or other party. A subpoena issued under this action shall be regulated by civil practice law and rules (emphasis supplied).*

• The provisions of WCL §119 are not applicable to claimants' representatives licensed pursuant to WCL §24-a, or representatives licensed to represent employers, insurance carriers or self-insurers in accordance with WCL §50(3-b) and (3-d) who are not attorneys.

The CPLR does not specify the place for the production of records requested pursuant to a lawfully issued subpoena duces tecum. The place of return listed in the body of the subpoena duces tecum is usually specified by the party who issues the subpoena, and is generally the issuing attorney's office or the court in which the present action is pending.

Guidelines for the Production of Medical Records

Medical Records Obtainable by Medical Authorization

Parties needing medical records should first carefully consider whether such records could be timely secured by an authorized medical release form. A party seeking records held by a hospital operating in New York State may acquire copies of such records pursuant to Board Rule 325-1.11.

Board Rule 325-1.11 permits employers, carriers, claimant's representatives and special funds, upon written request and with the claimant's written consent, to obtain a claimant's hospital records for use in Board proceedings (Board Rule 325-1.11(b)). A hospital is required to respond to the written request within 20 days, by either providing the records or notifying the requesting party that the records can not yet be provided and a reason why, with a date upon which the records will be provided (Board Rule 325-1.11(d)). The failure to provide the records, or a reason why the records have not been provided, within the 20 day period, subjects the hospital to a $200 fine imposed by the Chair (Board Rule 325-1.11(e)). The hospital is also subject to a $200 penalty for failure to provide the requested records within 30 days after notifying the requesting party of the reason for not initially providing the records and the date on which such records would be produced (Board Rule 325-1.11(f)).

Please be aware, however, that the hospital is permitted to charge its customary fees for the reproduction of such records (Board Rule 325-1.11(g)). Public Health Law Section 18(2)(e) permits a health care facility or health care practitioner to impose a reasonable charge for copying, not to exceed 75 cents per page.

Medical Records Obtainable by Subpoena

If it is determined that the use of a medical authorization is not feasible, medical records may be obtained by serving a subpoena duces tecum on the hospital or the medical provider in accordance with WCL §119 and the CPLR. The party issuing the subpoena duces tecum should specify that the records are returnable to his or her office, rather than to the Workers' Compensation Board.

In addition, the issuing party should insure that he or she is in compliance with newly amended CPLR §3122(a) and 2303(a). CPLR §3122(a) requires that any subpoena duces tecum served on a medical provider requesting the production of medical records, whether at the pre-trial or trial stage of the litigation, be accompanied by a written authorization signed by the claimant. The subpoena itself must include a conspicuous warning in bold faced type which states that the medical records requested shall not be provided unless the subpoena is accompanied by such an authorization. The amendment to CPLR §3122(a) was enacted in order to conform New York State Law to the Federal Health Insurance Portability and Accountability Act ("HIPAA"). CPLR §2303(a) requires service of a copy of a subpoena duces tecum on each party who has appeared in the action.

Should the hospital or medical provider holding the requested documents release the medical records sought pursuant to the subpoena duces tecum, the party issuing the subpoena may introduce the records into evidence at a hearing before a Workers' Compensation Law Judge ("WCLJ"). If the hospital or medical provider holding the requested documents refuses to release the medical records sought pursuant to the subpoena duces tecum, the party issuing the subpoena may move to compel compliance in the supreme court pursuant to WCL §119 and CPLR §2308.

A subpoena duces tecum served on a hospital or medical provider pursuant to WCL §119, which seeks the production of medical records for use in any part of a workers' compensation case, should advise the hospital or medical provider that it is not required to release any records that are subject to a recognized privilege, including the privilege in Mental Hygiene Law §33.13.

Medical Records Obtainable by Court Order Only

Hospitals and medical providers should specifically be notified that certain medical records may be obtained only by court order.

Records containing HIV-related information, for instance, may only be released pursuant to an order of a court of record of competent jurisdiction pursuant to Public Health Law ("PHL") §2785(1) or a specific release developed or approved by the Department of Health pursuant to 10 NYCRR 63.5(a). All written disclosures of confidential HIV-related information must also be accompanied by a statement prohibiting re-disclosure (See PHL §2782(5)(a) and 10 NYCRR 63.5(b)).

Mental Hygiene Law ("MHL") §33.13(c)(1) additionally provides that clinical records of patients or clients maintained by facilities licensed or operated by the Office of Mental Health or the Office of Mental Retardation and Developmental Disabilities may only be released by a hospital or medical provider pursuant to an order of a court of record. CPLR §2302(a) specifically requires that a subpoena to compel production of a patient,s medical records maintained pursuant to MHL §33.13 must be accompanied by a court order.

Judiciary Law §2 and Article 6, §1 of the New York State Constitution each narrowly defines the term "courts of record." The definition does not include administrative agencies such as the Workers, Compensation Board. As such, parties should not seek an order from the Board to effectuate the release of HIV-related records or the clinical records maintained pursuant to MHL §33.13.

If HIV-related records or records of the Office of Mental Health or Office of Mental Retardation and Developmental Disabilities are ultimately released pursuant to a court order, the parties will be permitted to inspect the records, and may enter the records into evidence at a hearing before a WCLJ. If the hospital or medical provider holding the requested documents refuses to abide by the terms of the court order and release such medical records, a party may move to enforce the court order.