On November 9, 2010, the Clinton County Department of Social Services filed a petition pursuant to SSL § 384-b alleging that Havyn-Leiy "A." is a child permanently neglected by her mother, Morianna "B.".

In their petition, the Clinton County Department of Social Services alleged that: the Canton-Potsdam Hospital Rehabilitation Unit (hereinafter "Canton-Potsdam") admitted Ms. B. for substance abuse treatment on August 10, 2010; the Department provided medicaid insurance to Ms. B. so she could engage in treatment at Canton-Potsdam; Canton-Potsdam discharged Ms. B. on September 30, 2009 with a "treatment complete" status; and Canton-Potsdam referred Ms. B. to Champlain Valley Family Center in Plattsburgh, New York for continued care on an outpatient basis.

In their petition, the Clinton County Department of Social Services alleged that: Conifer Park admitted Ms. B. for in-patient substance abuse treatment on August 13, 2010; administratively discharged Ms. B. on August 20, 2010 due to her inappropriate behaviors; and recommended that she report to Champlain Valley Family Center in Plattsburgh, New York.

In their petition, the Clinton County Department of Social Services alleged that the [*2]Clinton County Department of Social Services assisted Ms. B. with a referral for substance abuse treatment at Champlain Valley Family Center, provided medicaid insurance to cover treatment costs, assisted with transportation for appointments and encouraged Ms. B. to comply with treatment recommendations. The Department further alleged that Ms. B. failed to participate in outpatient treatment at Champlain Valley Family Center between November 19, 2009 and January 25, 2010.

By Order to Show Cause signed on December 15, 2010, the Clinton County Department of Social Services moved for an Order directing, among other things, that Canton-Potsdam and Conifer Park produce all treatment records regarding Morianna B. In support of their motion, the Department submitted the Affirmation of their attorney, Michael J. Hartnett, Esq., dated December 15, 2010. In response, Ms. B. filed the Affirmation of her attorney, Omshanti Parnes, Esq., dated January 10, 2011. In response to the motion, Conifer Park filed a letter of their counsel which the Court will treat as a memorandum of law. After duly being served, Canton-Potsdam and the Attorney for the Child did not file any response to the motion.

By Order to Show Cause signed on January 13, 2011, the Clinton County Department of Social Services moved for an order directing that Champlain Valley Family Center produce all treatment records regarding Morianna B. In support of their motion, the Department submitted the affidavit of their attorney, Michael Hartnett, Esq., dated January 12, 2011. In response to the motion, Ms. B. filed the affirmation of her attorney, Omshanti Parnes, Esq., dated January 18, 2011. After being duly served, Champlain Valley Family Center and the Attorney for the Child did not file any response to the motion.

The Department concedes, Canton-Potsdam Hospital Rehabilitation Unit, Champlain Valley Family Center and Conifer Park are facilities whose records are subject to the statutory provisions located at 42 USC 290dd-2 and the regulations found at 42 C.F.R. Part 2. 42 C.F.R. § 2.63(a) provides:

A court order under these regulations may authorize disclosure of confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral for treatment only if:

(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;

(2) ...; or

(3) ....

As the Department alleges that Ms. B. has permanently neglected the subject child, the documents sought meet the requirements of 42 C.F.R. § 2.63(a)(1).

After making this threshold determination, the Court must answer two questions to determine if the Court has good cause to enter the requested order. 42 C.F.R. § 2.64(d). First, does the Department have other ways of obtaining the information which they are requesting? 42 C.F.R. § 2.64(d)(1). Given that the records sought are correctly treated as confidential by each of the facilities, the Department only has access to the records sought if Ms. B. signs a release or this motion is granted. Ms. B. has not expressed any interest in signing a written release. Ms. B. alleges that based on previously signed releases in 2009, the Department had, at that time, access [*3]to facilities' records and presumably utilized those releases in order to obtain information. The Respondent; however, does not know if the Department has actually obtained all the relevant records and does not claim that the 2009 releases are still in effect.

Second, does the public interest and the need for disclosure outweigh the potential injury to the patient, physician-patient relationship and treatment services? see, 42 C.F.R. § 2.64(d)(2). In this case, the Court finds that the public interest does outweigh the potential injuries. The public interest in "the health and safety of children is of paramount importance." New York State Social Services Law § 384-b(1)(a). The potential injury to the physician-patient relationship and treatment services is de minimis because Ms. B. no longer receives services at Conifer Park, Champlain Valley or Canton-Potsdam. Ms. B. has not identified any other injury which would be caused by the release of the documents sought.

Notwithstanding these findings, it is clear that it is not necessary for the Department to have access to all of Canton-Potsdam's, Champlain Valley's and Conifer Park's records concerning Ms. B. in order to support the limited allegations in their petition. The Court's order authorizing disclosure must limit disclosure to those parts of the patient's records which are essential to fulfill the objective of the order. see, 42 C.F.R. § 2.64(e)(1).

As noted above, the only allegations concerning Conifer Park is that Ms. B. was admitted into treatment on August 13, 2010 and that she was administratively discharged from the treatment facility on August 20, 2010 due to her inappropriate behaviors; and further, that Conifer Park recommended that she report to Champlain Valley Family Center in Plattsburgh, New York. Many of Conifer Park's records concerning Ms. B. would be completely unrelated to those allegations. Accordingly, the Court is going to limit the disclosure to admission records, records that expressly specify the reason for Ms. B.'s discharge, and records that expressly specify Conifer Park's discharge recommendations to Ms. B.

Similarly, the Department's allegations regarding Canton-Potsdam's involvement with Ms. B. are also very limited. The Department alleges that she was admitted into Canton-Potsdam on August 10, 2010, the Department provided medicaid insurance to Ms. B. so she could engage in substance abuse in-patient treatment at Canton-Potsdam and Canton-Potsdam discharged Ms. B. on September 30, 2009 with a "treatment complete" status. Further, that Canton-Potsdam referred Ms. B. to Champlain Valley Family Center in Plattsburgh, New York for continued care on an outpatient basis. Accordingly, the Court is going to limit its disclosure order with respect to Canton-Potsdam Hospital Rehabilitation Unit to admission records, records related to the payment of services provided to Ms. B., and any documents expressly specifying Canton-Potsdam's recommendations made to Ms. B. upon discharge.

The Department's allegations regarding Champlain Valley Family Center's involvement with Ms. B. are also very limited. Accordingly, the Court is going to limit the disclosure to records that identify the referring entity, if any, regarding Ms. B., records related to the payment of services provided to Ms. B., records which expressly document Ms. B.'s treatment recommendations, and attendance records for treatment services provided between November 19, 2009 and January 25, 2010.

For purposes of addressing the requirements of New York State Mental Hygiene Law § 33.13(c)(1), the Court further expressly finds that the interest of justice in this case significantly outweighs the need for confidentiality of the records for the same reasons the public interest and [*4]the need for disclosure outweigh the potential injury to the patient, physician-patient relationship and treatment services, as discussed above.

ACCORDINGLY, IT IS HEREBY

ORDERED, that pursuant to 42 C.F.R. § 2.64 and the New York State Mental Hygiene Law § 33.13, this Court authorizes the release of confidential information set forth in the attached Judicial Subpoena Duces Tecum directed towards Conifer Park; and it is further

ORDERED, that pursuant to 42 C.F.R. § 2.64 and the New York State Mental Hygiene Law § 33.13, this Court authorizes the release of confidential information set forth in the attached Judicial Subpoena Duces Tecum directed towards Canton-Potsdam Hospital Rehabilitation Unit; and it is further

ORDERED, that pursuant to 42 C.F.R. § 2.64 and the New York State Mental Hygiene Law § 33.13, this Court authorizes the release of confidential information set forth in the attached Judicial Subpoena Duces Tecum directed towards Champlain Valley Family Center; and it is further

ORDERED, pursuant to 42 C.F.R. § 2.64(e)(2), that such confidential information shall be disclosed only to such personnel of the Court and the parties directly involved in the instant proceeding; and it is further

ORDERED, pursuant to 42 C.F.R. § 2.64(e)(3), that the parties may not further disclose such information without making an application to the Court for further disclosure; and it is further

ORDERED, all parties shall take notice that: pursuant to section 1113 of the Family Court Act, an appeal must be taken within thirty days of receipt of the order by appellant in court, thirty-five days from the mailing of the order to the

appellant by the clerk of the court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.

SO ORDEREDENTER

Signed and Dated:Plattsburgh, New York

January 20, 2011

Hon. Timothy J. Lawliss

Judge of the Family Court