In November 2002, Defendant James O'Reilly ("Defendant") was convicted of Assault in the Second Degree, a class D Felony, and sentenced to 5 years probation. One of the several terms and conditions of his probation, as ordered by the Court and acknowledged by Defendant, is that Defendant "[e]nter a facility or rehabilitation program for the treatment of alcoholism or chemical dependency as may be deemed necessary by Probation and remain in said facility until satisfactory completion, including all aftercare deemed necessary". (Orders and Conditions of Probation, No. 11).In early 2006, Defendant was charged with the first violation of his probation. Defendant subsequently admitted the violation and was restored to probation with the same terms and conditions.

In September, 2006, O'Reilly was directed by Probation to participate in an out-patient drug treatment program at St. Vincent's Hospital in Harrison, New York (the "Program"). Upon his entry into the Program in September 2006, Defendant executed a form entitled "Authorization for Release of Medical Information" by which, inter alia, he agreed that the Program could freely communicate with his probation officer regarding his treatment and progress in the Program (the "Consent Form"). As the Consent Form stated, the "[p]urpose for [*2]disclosure" was to "[d]iscuss [treatment] and progress."It also provided that Defendant was free to revoke such consent "in writing at any time, except to the extent that action has been taken in reliance on [the] authorization," and that absent such express revocation, the Consent Form would remain in effect until 60 days from its signing. When that initial time period was about to expire in November 2006, and then again in January 2007, Defendant signed renewals of the Consent Form, effectively extending the time frame of the authorization to March 2007.

On February 5, 2007, during the time period covered by the renewed Consent Form, Defendant was allegedly discharged from the Program. The People contend that Defendant was discharged after an argument with Program personnel during an unauthorized "smoking break". In any event, on February 7, 2007 Probation filed a Petition alleging that Defendant had violated the terms of his probationary sentence by virtue of the following:

"That the said James O'Reilly has violated the terms of Probation in the following manner:

Condition No. 11: as verified by his counselor, Lena Bianco, on February 5, 2007 he wasAdministratively Discharged from treatment at St. Vincent's Treatment Program located inHarrison, New York."

Upon its review of the Petition the Court signed a Declaration of Delinquency on February 21, 2007. Defendant entered a denial of the Petition and Declaration and after several conferences among the Court, counsel for Defendant, the District Attorney and Defendant's probation officer failed to bear fruit, the case was set down on July 11, 2007 for a Violation of Probation ("VOP") Hearing pursuant to Article 410 of the Criminal Procedure Law. At the hearing, the People called as their first witness Georgann Naughton, a Program Administrator at St. Vincent's Hospital, presumably to testify concerning Defendant's conduct while in treatment there and the circumstances of his alleged discharge. Before Ms. Naughton could do so, however, Defendant's counsel purported to revoke, on Defendant's behalf, any consent to disclose information concerning his treatment while in the Program, including information concerning the behavior that precipitated his alleged discharge. Defendant objected to Ms. Naughton's testimony, asserting that any testimony concerning his behavior while in the Program would violate his rights to confidentiality of his medical treatment.

Needless to say, the People took issue with both the purported revocation of consent and Defendant's objection to Ms. Naughton's testimony. The Court then adjourned the hearing and directed the parties to brief their respective positions by way of a written motion by Defendant. Defendant's instant motion to preclude the People from eliciting any testimony or records concerning Defendant's treatment at the Program followed.

In his motion papers, Defendant contends, in essence, that his conduct while at St. Vincent's was part of a course of medical treatment and, as such, is immune from disclosure under three separate statutes: the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C � 1320d-2, et seq ("HIPAA") and the regulations promulgated thereunder (45 CFR Part 164.500, et seq); CPLR 4504 which pertains to confidential communications between a patient and his or her health care provider; and Section 33.13 of the New York Mental Hygiene Law concerning records of patients of mental health facilities . Defendant appears to concede that a [*3]person/patient may waive each of these protections in certain ways, including, most prominently, by consent, but further argues that any such consent may be revoked at any time, as O'Reilly sought to do at the VOP hearing.

On the other hand, the People contend that Defendant waived any right to confidentiality regarding his treatment at St. Vincent's treatment as far as Probation is concerned by his execution of the Consent Form permitting St. Vincent's to communicate with Probation regarding his course of treatment. The People further argue that since the Consent Form was in effect and had not been revoked as of the date of Defendant's alleged offending conduct, any post facto revocation — such as Defendant's assertion of his right to revoke at the VOP hearing — is ineffective. The People also contend that the various claims of privilege asserted by Defendant concerning his treatment are inapposite because Defendant's conduct as alleged in the Petition — arguing with and threatening St. Vincent's personnel during an unauthorized smoking break did not directly pertain to any recognized medical treatment.

As discussed more fully below, in light of Defendant's execution — on three separate occasions — of a Consent Form permitting St. Vincent's to communicate with Probation concerning his treatment, and the fact that such consent was in effect and had not been revoked at the time of the conduct at issue, the Court holds that the People may offer relevant evidence from St. Vincent's records and personnel pertaining to Defendant's treatment there, including the facts and circumstances relating to his discharge from the Program.

DISCUSSION

The fulcrum of the VOP Petition is Defendant's alleged conduct in a treatment program at St. Vincent's Hospital which resulted in his expulsion from the Program in February 2007. Defendant allegedly cursed and threatened hospital personnel during an unauthorized "smoking break", causing his expulsion. Defendant denies that his expulsion was justified.

Several facts, however, appear to be undisputed: that Defendant was ordered by Probation to participate in and successfully complete the Program as part of the Terms and Conditions of his probationary sentence; that upon his admission to the Program in September, 2006, Defendant signed a Consent Form that authorized Program personnel to communicate with Probation concerning Defendant's treatment and that such consent/authorization was renewed in November 2006 and again in January, 2007 for additional time periods; that Defendant did not seek to revoke such consent until the date of the VOP hearing; and that Defendant's conduct in the Program that led to his expulsion and forms the basis of the instant alleged VOP took place at a time when such consent/authorization was in effect. It is also clear that in order to prove their case at the VOP hearing, the People would need to adduce evidence concerning Defendant's treatment in and behavior during the Program. To thwart the People's effort, Defendant now, months after the events at issue and after the VOP hearing had begun, seeks to revoke his consent and asks the Court to prohibit the People from adducing such evidence and to prevent St. Vincent's from providing it. As discussed below, this the Court cannot do. To do so would stand the probation process on its head and would, in practice, undermine the rehabilitive purpose of probation when dealing with those in need of specialized treatment.

Whether framed in terms of the privacy protections of HIPAA, the doctor/patient privilege of CPLR 4504, or the applicable provisions of the Mental Hygiene Law, it is clear that a [*4]patient may, by his or her consent, waive these protections and permit various health care providers to disclose information concerning his or her treatment to others. See, e.g. 45 CFR � 164.508, et. seq.; Matter of Farrow v. Allen, 194 AD2d 40 (1st Dept. 1997); Mental Health Law, � 33.13(c)(7). It is also clear that under certain circumstances this consent may be revoked. However, this right to revoke consent is not absolute, and is subject to several conditions, including whether the party to whom consent to obtain information was given has acted in reliance on such consent (see, e.g. 45 CFR 164.508 [b] [5] [i]), et seq.), whether defendant has placed his mental or physical condition is issue (see e.g., Hughson v. St. Francis Hospital, 93 AD2d 491 (2d Dept. 1983), or whether such otherwise protected information has been previously disclosed and is therefore no longer confidential. See Matter of Farrow v. Allen, 194 AD2d 40 (1st Dept. 1993); People v. Becume, 6 Misc 3d 420 (Sup. Ct., Monroe Co. 2004).

In the instant case, the determination of whether the treatment provider, St. Vincent's, and, in turn, Defendant O'Reilly's Probation Officer and the Probation Department in general relied upon his consent must await the VOP hearing. However, for purposes of this motion and subject to evidence to be presented at the hearing, the Court will presume such reliance, and for good reason: the Consent Form — thrice signed by Defendant — specifically names Probation as the entity with which the Program is authorized to communicate concerning Defendant's treatment. Moreover, Defendant surely recognized that Probation - which had directed him to participate in the Program in the first place — would be monitoring his progress in the Program through communications with the Program personnel, and would be receiving reports from the Program about his compliance with it, or lack thereof. And despite Defendant's current protestations to the contrary, he cannot seriously contend that Probation does not generally rely upon such communications from such programs - communications made possible only by virtue of a defendant's consent - in order to monitor this or any defendant's compliance with the Program and therefore with the terms of his probationary sentence. Without such free communication with treatment providers, Probation could not determine whether any defendant is complying with the terms of his or her probationary sentence, and, of equal importance, whether the program selected for him is achieving it rehabilitative goals.

In view of such presumptive reliance by the Program and, in turn, Probation on his consent, Defendant's attempt to nonetheless seek, in essence, to retroactively revoke his consent and, thereby prevent the People from adducing evidence pertaining to his behavior in the Program during the time the consent was in effect, proves unavailing. A recent case relied upon by Defendant so holds and proves instructive here.

In People v. Bercume, 6 Misc 3d 420 (Sup. Ct., Monroe Co.2004), the Court, also in the context of a VOP hearing, addressed a similar argument with respect to a treatment program's disclosure of evidence of medical treatment, and found defendant's position wanting. The defendant in Bercume was serving felony probation. As part of his probationary regimen, he was ordered to participate in the Sexual Behaviors Clinic at Evelyn Brandon Health Center (the "Health Center"). The probation department filed a declaration of delinquency charging, inter alia, that Bercume failed to complete the prescribed sex offender treatment by virtue of his discharge from the Health Center program. At the VOP hearing, the People sought to call a counselor with the program, Mrs. Warchoki, to testify concerning defendant's treatment but was abruptly foreclosed from doing so by defendant's objection to disclosure of such information [*5]based, as here, on the privacy protection of the HIPAA and CPLR 4504. However, for purposes of defendant's motion, the Court assumed that "proof of a valid waiver and HIPPA authorization will be forthcoming," and that such waiver and consent had been in effect and not revoked at the time defendant was attending the program. (Id at 424) Under the circumstances, the Court held that Bercume had effectively waived his rights to confidentiality with respect to his conduct during the time his waiver/consent was in effect; since probation as well as the treatment provider had relied upon such consent, his attempt to subsequently revoke it proved too late, if not to little. As the Court stated:

"The purported revocation of his prior authorizations (to use the HIPAAterminology) or his prior releases and waivers of confidentiality (to use the CPLR 4504formula), does not prevent Ms. Warchocki from testifying about defendant's progress (orlack thereof) in sex offender treatment at Evelyn Brandon prior to execution of therevocation. At the time of all the events in question, the releases were in full force andeffect, and the course of defendant's treatment was obviously imparted to SeniorProbation Officer Sandra Migliore in reliance on them, because that information served asa basis for the history of the defendant provided in the adjustment summary attached to theinformation for delinquency and the amended information for delinquency . . . .Defendant's attempt to reclaim his privilege by virtue of the purported revocation isineffectual to prevent testimony concerning defendant's treatment covered by his waiverwhile it was in effect."

Id. at 424-425. See also Steiner v. University of Rochester, 278 AD2d 827 (4th Dept. 2000) ("[P]laintiff executed consents expressly permitting disclosure of information concerning plaintiff's treatment in the drug program and thus waived any claim of privilege.").

Parenthetically, the Court notes that as the Becume court recognized, under the somewhat convoluted HIPAA regulations, the analysis which prohibits a patient from revoking consent with respect to conduct which he has already engaged is essentially a two-step process: defendant in Becume, as here, authorized his treatment provider to communicate his progress in treatment with probation (45 FR 164.506(2) (c); the treatment provider relied upon that consent in communicating with probation and probation also so relied, all before any purported revocation took place (45 CFR � 164.508 (5)(I) ("An individual may revoke an authorization provided under this section at any time, provided that the revocation is in writing, except to the extent that (I) [t]he covered entity has taken action in reliance thereon."); see People v. Becume, 6 Misc 3d at425).

Thus, under circumstances that obtained in Becume and that obtain here, a probationer, either under HIPAA or state law, may not wield his privacy rights as a sword to eviscerate the terms of probation by which he was ordered to abide, rather than a shield to protect himself against unwarranted and unsanctioned revelations about his medical treatment. Indeed, to hold otherwise might seriously undermine the salutary and rehabilitative goal of probation for those in need of specialized programs and treatment. If the probation department can be hamstrung by its own charges in its ability to sanction such probationers when they do not comply, then it may well prove reluctant to recommend such treatment as part of the probationary regimen. Unless such consent is given and such communications freely allowed, it seems doubtful that any probation department would permit a defendant's entry into any outside treatment program since [*6]probation would then be abdicating its principal oversight responsibilities to defendant himself.The regulations promulgated under HIPAA implicitly recognize this imperative by carving out of its privacy scheme an exception for those who act in reliance upon a patient's waiver or consent to disclose - as the Program and Probation did here. See 45 CFR � 164.508 [b] [5] [i]. CPLR 4504 does not require a contrary result with respect to conduct that took place while a consent was in effect, as the Bercume Court recognized, for "once the privilege is thus waived there is nothing left to protect against." Bercume at p.425, quoting People v. Al-Kanani, 33 NY2d 260, 265 (1973). And Section 33.13 of the Mental Hygiene Law is also consistent with this result in light of Defendant's consent. (See Mental Hygiene Law � 33.13(c)(7)).

Finally, Defendant's suggestion that O'Reilly's waiver pertained only to Probation and did not authorize Probation to then communicate with the District Attorney's office concerning Defendant's treatment status is meritless. In Westchester County, the District Attorney's office is charged with the responsibility of prosecuting violations of probation. Prohibiting the Probation department from advising the District Attorney when a probationer has violated the terms of his probationary sentence would prevent the VOP charge from being brought and prosecuted, clearly an unacceptable result which would render a defendant's offending behavior without consequence. Under those circumstances, conveying such information to the District Attorney is not only permitted but appropriate and necessary (cf. 45 CFR �� 164.502 (d) and 164.506 (c)).

CONCLUSION:

Accordingly, subject to the People laying the proper foundation for their admission, the Court will permit the People to introduce evidence concerning Defendant's behavior and treatment with respect to the Program during the period prior to March, 2007 when the Consent Form expired by its terms. In light of this decision, the Court need not address the other arguments raised by the People. All parties are directed to appear on October 17, 2007 for further proceedings.

The foregoing constitutes the Decision and Order of this Court.

DATED: White Plains, New York [*7]

October 16, 2007

___________________________

John P. Colangelo

Acting County Court Judge