Lead Opinion
Petitioners Albany Law School and Disability Advocates, Inc. provide protection and advocacy services to individuals with developmental disabilities pursuant to contracts with the New York State Commission on Quality of Care and Advocacy for Persons with Disabilities, an agency that oversees New York’s protection and advocacy system. After receiving a complaint regarding the discharge practices of respondent New York State Office of Mental Retardation and Developmental Disabilities— now the Office for People with Developmental Disabilities (OP-WDD)—petitioners requested access to the clinical records of all individuals residing at two OPWDD facilities to investigate whether they were being denied the opportunity to live in less restrictive settings. Relying on Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4), petitioners asserted that they were entitled to unrestricted access to the clinical records.
OPWDD disagreed, taking the position that the two Mental Hygiene Law provisiоns cited by petitioners incorporate the records access procedures established in the federal Developmental Disabilities Assistance and Bill of Rights Act, which were designed to balance the privacy rights of developmentally disabled persons with the need of protection and advocacy organizations to access residents’ personal information in order to investigate complaints and advocate on behalf of those individuals. In accordance with federal law, OPWDD agreed to provide records pertaining to residents for whom petitioners had obtained authorization, either from the individuals themselves or their legal representatives (which, in OPWDD’s view, included actively-involved family members), and for individuals who were unable to provide authorization and did not have a legal representative.
This case requires us to decide two significant issues that implicate competing interests with regard to the clinical records of developmentally disabled persons. First, whether Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4) provide petitioners with unqualified access to clinical and other records or whether the state statutes embrace the access provisions in federal law. And second, whether actively-involved family members can be deemed legal representatives for purposes of the federal and state access provisions. We conclude that section 45.09 (b) and section 33.13 (c) (4) must be read in accord with federal law and that actively-involved family members can possess sufficient
L
In 1975, in response to the deplorable conditions revealed at New York’s Willowbrook State School and other state-operated facilities, Congress enacted the Developmental Disabilities Assistance and Bill of Rights Act (the DD Act).
In 1984, Congress amended the DD Act to require states, as a condition to maintaining eligibility for federal funding under the program, to grant their P&A systems access to the records of individuals with developmental disabilities subject to certain requirements (see Pub L 98-527, § 142, 98 US Stat 2662, 2679-2680 [98th Cong, 2d Sess, Oct. 19, 1984], amending 42 USC former § 6042 [a]). The 1984 amendment gave the states until October 1986 to implement these access requirements (see id.). In particular, the DD Act currently describes four sets of circumstances under which a P&A entity must be given access to the clinical and other records of developmentally disabled persons.
First, the P&A organization is entitled to “immediate access,” without the consent of any person, if it “determines there is probable cause to believe that the health or safety of the individual is in serious and immediate jeopardy” (42 USC § 15043 [a] [2] [J] [ii] [I]) or if the individual dies (see 42 USC § 15043
Second, in nonemergencies, the facility must grant access to the P&A organization if authorization is given by the individual or the individual’s “legal guardian, conservator, or other legal representative” (42 USC § 15043 [a] [2] [I] [i]). Not all developmental^ disabled persons residing in facilities are incompetent to participate in medical and therapy decision-making or decisions relating to training or residential choices. Federal law acknowledges the right of these residents who are consistently involved in the management of their own care to be notified and to authorize or deny access, recognizing the reasonable privacy expectations of these individuals in their personal information and their right to make decisions regarding their own treatment and welfare.
Third, a P&A entity is to be afforded access where (a) the individual is incapable of granting authorization; (b) the individual does not have a legal representative; and (c) the system has received a complaint with regard to the individual’s treatment or, as a result of monitoring activities, there is probable cause to believe that the individual has been abused or neglected (see 42 USC § 15043 [a] [2] [I] [ii]). Clearly, the DD Act recognizes the imperative need of P&A organizations to protect and advocate on behalf of residents who are not capable of providing authorization and lаck a legal representative. Even without receiving a complaint, if P&A personnel have probable cause to believe that a resident has been neglected or abused—reflecting the importance of on-site monitoring activities by P&A organizations—they may demand record access to investigate the circumstances and safeguard the resident at risk.
Finally, access is mandated if (a) the individual has a legal representative; (b) the P&A entity has received a complaint with regard to the individual’s treatment or, as a result of monitoring activities, there is probable cause to believe that the individual has been abused or neglected; and (c) the P&A entity has contacted the legal representative and offered assistance but the representative has failed or refused to act on the individual’s behalf (see 42 USC § 15043 [a] [2] [I] [iii]). In non-emergency situations, the records of individuals who lack the
In short, in amending the DD Act, Congress acknowledged the necessity of allowing P&A entities record access in order to fulfill their “watchdog” role. Yet, Congress also considered the right of competent individuals or legal representatives acting on behalf of developmentally disabled persons to participate in the decision to disclose their records—some of which may contain sensitive, personal information. Therefore, federal law established a carefully calibrated system that took into consideratiоn both the privacy interests of developmentally disabled persons and the need for P&A organizations to examine records in order to pursue their statutory functions.
Following the adoption of the DD Act, the New York Legislature created what is now known as the Commission on Quality of Care and Advocacy for Persons with Disabilities (the Commission) to oversee the care, treatment and delivery of services to individuals who are developmentally disabled (L 1977, ch 655; see also Mental Hygiene Law art 45). The Commission is empowered to review the operations of the Department of Mental Hygiene, which includes OPWDD, and to investigate complaints pertaining to the treatment and care of individuals who are patients or residents of any facility providing services to developmentally disabled persons (see Mental Hygiene Law § 45.07; see generally Matter of Reckess v New York State Commn. on Quality of Care for Mentally Disabled,
Although the Commission has been granted broad access to facility records since its inception (see L 1977, ch 655; see also Mental Hygiene Law § 45.09 [a]), state law did not originally afford P&A organizations that contract with the Commission an independent right to examine the clinical records of developmentally disabled individuals. In response to the 1984 amendments to the DD Act—which conditioned the continued eligibility for federal funding on allowing such entities access to records—the Legislature amended the Mental Hygiene Law in 1986 to address the access rights of these P&A organizations (see L 1986, ch 184).
Specifically, the Legislature added Mental Hygiene Law § 45.09 (b), which provides, in relevant part:
“Pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law, any agency or person within or under contract with the commission which provides protection and advocacy services must be granted access at any and all times to any facility, or part thereof, serving a person with a disability operated or licensed by any office or agency of the state, and to all books, records, and data pertaining to any such facility upon receipt of a complaint by or on behalf of a person with a disability.”
The 1986 legislation simultaneously amended Mental Hygiene Law § 33.13, the provision that secures the confidentiality of clinical records in the possession of OPWDD or the Office of Mental Health absent enumerated exceptions, by adding the following emphasized language to subdivision (c) (4):
“(c) Such informаtion about patients or clients reported to the offices . . . shall not be released by the offices or its facilities to any person or agency outside of the offices except as follows: . . .
“4. to the commission on quality of care for the mentally disabled and any person or agency under contract with the commission which provides protection and advocacy services pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law.”
IL
In 2008, petitioners, as P&A organizations under contract with the Commission, wrote to OPWDD requesting review of the records of more than 200 residents at two facilities operated by OPWDD—the Capital District and Taconic Developmental Disabilities Service Offices. The requests indicated that petitioners had received a “complaint of neglect” pertaining to the discharge policies at the Taconic facility and that, as a result of monitoring activities at the Capital District facility, petitioners were concerned about the timeliness of the transfer of individuals into more integrated placements—clearly an issue within petitioners’ advocacy responsibilities. Petitioners claimed that they were entitled to unrestricted access to the documents pursuant to Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4).
OPWDD rejected petitioners’ contention that they had full access to the clinical records under these circumstances and asserted that section 45.09 (b) and section 33.13 (c) (4) required petitioners to comply with the federal procedures prescribed by the DD Act. Consequently, OPWDD agreed to provide the records of individuals for whom petitioners had obtained authorization and the records of individuals who were incapable of providing authorization and had no legal representative.
As a result of this conflict over the proper procedures governing record access, petitioners brought this combined CPLR
OPWDD moved to dismiss under CPLR 3211 for failure to state a cause of action. In the alternative, OPWDD requested that the court strike certain paragraphs of the petition/cоmplaint as prejudicial and irrelevant under CPLR 3024 (b).
Supreme Court granted OPWDD’s motion in part. The court agreed with OPWDD that Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4) adopted the fеderal access procedures and
The Appellate Division modified (
The Appellate Division granted OPWDD and petitioners leave to appeal on a certified question.
IIL
On this appeal, OPWDD argues that the Mental Hygiene Law does not grant P&A organizations under contract with the Commission unrestricted access to clinical records. Rather, OPWDD contends that Mental Hygiene Law § 45.09 (b) authorizes petitioners to review patient records only in accordance with the four categories of access procedures enumerated in the DD Act. OPWDD further asserts that Mental Hygiene Law § 45.09 (b) cannot reasonably be interpreted inconsistently with Mental Hygiene Law § 33.13 (c) (4) since both provisions were enacted jointly in the same legislative proposal. In OPWDD’s view, neither section 45.09 (b) nor section 33.13 (c) (4) grants petitioners access greater than what is permitted under federal law. Petitioners agree that Mental Hygiene Law § 45.09 (b) and
In matters of statutory interpretation, our primary consideration is to discern and give effect to the Legislature’s intention (see Yatauro v Mangano,
At the heart of this appeal is the proper scope of Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4). In relevant part, section 45.09 (b) provides:
“Pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law, any agency . . . under contract with the commission which provides protection and advocacy services must be granted access . . . to all . . . records . . . pertaining to any such facility upon receipt of a complaint” (emphasis added).
Similarly, section 33.13 (c) (4) permits facilities licensed or operated by OPWDD or the Office of Mental Health to release clinical records to any “agency under contract with the commission which provides protection and advocacy services pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law” (emphasis added). The reference to federal law appears in both statutes, but the placement of the reference differs.
As an initial matter, we disagree with the approach taken by the Appellate Division, which applied different interpretations
Although the issue is admittedly close, we believe that OPWDD’s interpretation of the statutes is more persuasive as a matter of both text and context. In contrast to Mental Hygiene Law § 45.09 (a), which accords the Commission broad access to records as long as they relate to the Commission’s “functions, powers and duties,” Mental Hygiene Law § 45.09 (b) expressly ties the access rights of P&A organizations to the Commission’s administration of the P&A system “as provided for by federal law.” Likewise, although Mental Hygiene Law § 33.13 (c) (4) contemplates the release of records to the Commission itself without any limiting language, the amended language that incorporates P&A organizations includes the identical reference to federal law. Hence, contrary to the view expressed by the dissent, the most plausible reading of the two statutes is that P&A organizations are entitled to review records in compliance with federal law. As discussed, the DD Act recognizes the critical advocacy and investigative functions of P&A organizations by authorizing “immediate access” without permission in emergency situations. But the DD Act also strove to balance the purpose and objectives of P&A organizations with the privacy interests of individuals with developmental disabilities by requiring P&A organizations, in situations not involving an
The context underlying the enactment of Mental Hygiene Law § 45.09 (b) and amendment to Mental Hygiene Law § 33.13 (c) (4) by the Legislature in 1986 supports this statutory interpretation (see Consedine v Portville Cent. School Dist.,
In sum, we conclude that the Mental Hygiene Law implements federal law such that petitioners must follow the safeguards outlined in the DD Act. If this is not the desire of the Legislature, it can certainly amend the statutes to provide otherwise. We now turn to the question of whether petitioners must notify actively-involved family members of individuals with disabilities who lack the capacity to consent in order to comply with the federal directives.
IV
OPWDD next argues that the Appellate Division erred in holding that actively-involved family members cannot be considered legal representatives for notice and authorization purposes under the DD Act. It contends that New York law grants family members of individuals with developmental disabilities significant powers to make personal decisions on their behalf when they lack the ability to do so for themselves. OP-WDD further submits that it has in place an appointment аnd review system with regard to these family members. Petitioners respond that the Appellate Division correctly determined that family members who have not been formally appointed as guardians do not hold the status of legal representatives and, therefore, P&A organizations need not give them notice or seek their consent under the DD Act access procedures.
The federal regulations implementing the DD Act define “[l]egal [gjuardian, conservator and legal representative” as
“an individual appointed and regularly reviewed by a State court or agency empowered under State law*124 to appoint and review such officers and having authority to make all decisions on behalf of individuals with developmental disabilities. It does not include persons acting only as a representative payee, person acting only to handle financial payments, attorneys or other persons acting on behalf of an individual with developmental disabilities only in individual legal matters, or officials responsible for the provision of treatment or habilitation services to an individual with developmental disabilities or their designees” (45 CFR 1386.19).
The regulation prescribes two requirements for individuals to qualify as legal representatives: (1) they must have sufficient decision-making authority and (2) they must be appointed and regularly reviewed by a court or state agency. Moreover, the regulation looks to state law for both elements. We address each in turn.
A.
“Actively involved” or “qualified” family members enjoy a recognized status and are able to make a number of critical decisions on behalf of individuals with developmental disabilities under New York law. For example, actively-involved family members may give informed consent for major medical procedures on behalf of individuals residing in OPWDD facilities who lack the “capacity to understand appropriate disclosures regarding proposed professional medical treatment” (14 NYCRR 633.11 [a] [1] [iii] [b]). Similarly, they may аpprove service plans involving an “untoward risk to an individual’s protection or rights” (14 NYCRR 681.13) and object to OPWDD -related services on behalf of such individuals (see 14 NYCRR 633.12). Most notably, New York law now permits actively-involved family members to make end-of-life decisions on behalf of developmentally disabled individuals without capacity, including the decision to “withhold or withdraw life-sustaining treatment” (SCPA 1750-b [1] [a]; see also 14 NYCRR 633.10 [a] [7] [iv]; Matter of M.B.,
New York law further affords family members of individuals with developmental disabilities various notification and document access rights. Under OPWDD’s regulations, family
These provisions, taken together, amply demonstrate that actively-involved family members enjoy sufficient decision-making authority such that they may be classified as legal representatives within the meaning of 45 CFR 1386.19. We reject petitioners’ assertion that a legal representative must have the ability to make every possible decision. Indeed, such an interpretation would render the entire second sentence of the regulation unnecessary, as it is plain that “representative payee[s],” persons that “handle financial payments” and attorneys who provide representation on “individual legal matters” do not have unqualified decision-making powers. The negative examples cited in the regulation support our conclusion that actively-involved family members qualify under New York law as each of the stated examples involves persons who have only discrete authorization with regard to financial or legal matters. In contrast, actively-involvеd family members possess the authority to make many of the most important personal decisions affecting the health and well-being of their developmentally disabled relative. As NYSARC, Inc. observes in its amicus brief, it would be peculiar for a parent or other family member who enjoys the ability to withhold or withdraw life-sustaining treatment to lack the much less intrusive right to be consulted before a third party reviews a resident’s personal records.
Under the federal regulation, however, it is not enough that the individual possesses sufficient decision-making authority. There must also be in place an appointment and review mechanism in connection with these legal representatives.
B.
According to OPWDD, the staff at its facilities considers the relationship between a developmentally disabled individual and each actively-involved family member to make a determination as to which relative is best suited to make decisions on behalf of the individual. Under OPWDD’s regulations, an “[ajctively involved adult family membеr” is defined to mean “[sjomeone 18 years of age or older who is related to a person in a facility
Petitioners submit that OPWDD’s system is inadequate as a matter of law because there is no statute in place governing these procedures. But we note that OPWDD’s regulatory authority may suffice under 45 CFR 1386.19 (see Matter of Allstate Ins. Co. v Rivera,
V
On their cross appeal, petitioners contend that the courts below erred in striking certain paragraphs of the petition/complaint pursuant to CPLR 3024 (b), which permits a court “to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” We perceive no abuse of discretion as a matter of law on this issue.
* * *
We stress that our decision does not preclude P&A organizations like petitioners from gaining access to the clinical records of individuals with developmental disabilities. Undoubtedly, petitioners perform critically important services aimed at safeguarding and improving the conditions under which these vulnerable citizens live. But based on the language and structure of the statutes at issue, we hold that New York law parallels federal law, which balances the privacy rights of such individuals with the need of P&A organizations to examine records to further their advocacy mission. Under this regime, petitioners are entitled to immediate access of records without consent in an emergency situation—which they acknowledge is not implicated by the facts of this case. In other scenarios, they
Accordingly, the ordеr of the Appellate Division should be modified, without costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion and, as so modified, affirmed. The certified question should be answered in the affirmative.
Notes
. The DD Act of 1975 (42 USC § 6001 et seq.) was repealed and incorporated into the DD Act of 2000 (42 USC § 15001 et seq.), which retained the name of the act and most of its provisions.
. Although OPWDD questioned whether there was probable cause to believe that the individuals were being neglected, it stated that it would provide the records if petitioners otherwise satisfied the federal access criteria.
. The paragraphs at issue described the “inhumane conditions” of the Willowbrook State School in the 1970s and the 2007 death of a child in OP-WDD’s care in an unrelated case.
. Although Supreme Court agreed with OPWDD on the legal issues, it declined to dismiss the petition/complaint in its entirety, finding that factual issues existed as to whether petitioners had followed the DD Act’s procedures with respect to a numbеr of residents.
. Petitioners place heavy reliance on letters written by OPWDD’s general counsel and the Commission’s counsel commenting that the 1986 bill expanded the scope of access contemplated by the DD Act (see Letter of Paul R. Kietzman, Office of Mental Retardation and Developmental Disabilities, to Evan A. Davis, Counsel to the Governor, June 19, 1986, Bill Jacket, L 1986, ch 184, at 21; Letter of Paul E Stavis, Commission on Quality of Care for the Mentally Disabled, to Evan A. Davis, Counsel to the Governor, June 18, 1986, Bill Jacket, L 1986, ch 184, at 12). But postpassage opinions of state agencies are generally entitled to “little weight” in discerning legislative intent (Majewski v Broadalbin-Perth Cent. School Dist.,
Dissenting Opinion
Because I believe that Mental Hygiene Law § 45.09 (b) and § 33.13 (c) (4) give the protection and advocacy agencies (P&A agencies) equal access to the clinical records of residents in facilities operated under the auspices of the Office for People with Developmental Disabilities (OP-WDD) and records and data of those same facilities as are available to the Commission on Quality of Care and Advocacy for Persons with Disabilities (the Commission), I respectfully dissent. I further believe that OPWDD’s definition of an “actively involved family member” does not meet the federal requirements for a “legal guardian, conservator and legal representative,” and that access to the clinical records of residents should not be conditioned upon the consent of such family members.
It is uncontroverted that, pursuant to Mental Hygiene Law § 45.09 (a) and § 33.13 (c) (4), the Commission has broad, unrestricted access to the clinical records of residents of OPWDD facilities as well as tо the facilities’ own records and data. In order to be eligible for federal funding under the Developmental Disabilities Assistance and Bill of Rights Act pursuant to 42 USC § 15043 and 45 CFR 1386.21, minimal access to these records must be given to P&A agencies. However, the State may also provide P&A agencies, charged with the duty of providing protection and advocacy services pursuant to contracts with the Commission, greater authority than exists under the federal statutes (see 45 CFR 1386.21 [f]). In determining what degree of access the P&A agencies shall enjoy, we must interpret both Mental Hygiene Law provisions.
Turning to the text of the statutes, Mental Hygiene Law § 45.09 (b) provides:
“Pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law, any agency or person within or under contract with the commission which provides protection and advocacy services must be granted access at any and all times to any facility, or part thereof, serving a person with a disability operated or licensed by any office or agency of the state, and to all books, records, and data pertaining to any such facility upon receipt of a complaint by or on behalf of a person with a disability. Information, books, records or data which are confidential as provided by law shall be kept confidential by the person or agency within the protection and advocacy system and any limitations on the release thereof imposed by law upon the party furnishing the information, books, records or data shall apply to the person or agency within the protection and advocacy system” (emphasis added).
While the majority would have the phrase “as provided for by federal law” apply to the entire section, it is noteworthy that the phrase “[p]ursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law” is set off from the rest of the paragraph by a comma. “Common marks of punctuation are used to clarify the writer’s intended meaning and thus form a valuable aid in
Similarly, Mental Hygiene Law § 33.13 (c) provides:
“Such information about patients or clients reported to the offices, including the identification of patients or clients, clinical records or clinical information tending to identify patients or clients, and records and information concerning persons under consideration for proceedings pursuant to article ten of this chapter, at office facilities shall not be a public record and shall not be released by the offices or its facilities to any person or agеncy outside of the offices except as follows: . . .
“4. to the commission on quality of care for the mentally disabled and any person or agency under contract with the commission which provides protection and advocacy services pursuant to the authorization of the commission to administer the protection and advocacy system as provided for by federal law” (emphasis added).
The placement of “as provided for by federal law” at the end of section 33.13 (c) (4) indicates that it was only intended to modify the last clause (see People v Shulman,
“[a]s currently proposed, this amendment to § 45.09 would permit any person or agency within the protection and advocacy system to have access to all of the facility’s information, regardless of whether or not that person is investigating the complaint
“The amendment enlarges the scope of access required by the Act” (Letter of Paul R. Kietzman, Office of Mental Retardation and Developmental Disabilities, to Evan A. Davis, Counsel to the Governor, June 19, 1986, Bill Jacket, L 1986, ch 184, at 21).
Thus it seems that the concerned agencies understood that the
Further, being on notice of this broad reading of the statutes, the Legislature did not see fit to amend them to indicate that the P&A agencies’ access is limited to that codified in the federal statute. Accordingly, it may be inferred that the interpretation proposed by petitioners here is in line with the intent of the Legislature, which was free to grant more access to the records than that required by the federal statutes, and in my opinion, sought to give equal access to the Commission and its P&A agencies.
Having determined that both statutes, enacted as part of the same legislation, must be interpreted harmoniously to allow the P&A agencies unrestricted access to both the facility records and data and the clinical records of facility residents equal to that enjoyed by the Commission itself, I turn to the further issue wherein respondents seek to limit access to the clinical records by requiring permission from an “actively involved family member.”
I disagree with the majority’s conclusion that “actively involved” or “qualified” family members may qualify as a “legal guardian, conservator and legal representative” as defined by the Developmental Disabilities Assistance and Bill of Rights Act (see majority op 125) and agree with the Appellate Division’s finding that they do not qualify as legal guardians.
45 CFR 1386.19 provides: “Legal Guardian, conservator and legal representative all mean an individual appointed and regularly reviewed by a State court or agency empowered under State law to appoint and review such officers and having authority to make all decisions on behalf of individuals with developmental disabilities.” It is uncontroverted that New York State has no formal appointing or reviewing process for designating family members as “actively involved.” The OPWDD argues that it has sufficient procedures in place to designate a family member as a legal guardian within the ambit of the federal requirements. The OPWDD’s regulations define an “[alctively involved adult family member” as “[s]omeone 18 years of age or
Accordingly, I would vote to modify the Appellate Division order as indicated above and grant the petition to the extent of ordering respondents to provide petitioners the clinical records as well as the system data facility records sought.
Judges Read, Pigott and Jones concur with Judge Graffeo; Judge Ciparick dissents in a separate opinion in which Chief Judge Lippman and Judge Smith concur.
Order modified, etc.