HOW TO SERVE LEGAL PAPERS ON PATIENTS AT INSTITUTIONAL/TREATMENT FACILITIES

Health Care Facilities

Undisputed Legal | Process Service

The New York State Department of Mental Hygiene is a department of the New York state government. Its regulations are compiled in title 14 of the New York Codes, Rules, and Regulations. The department itself comprises autonomous offices that work in tandem to improve individuals’ mental hygiene, which is specified to be the [A.] New York State Office of Addiction Services and Supports (OASAS), [B.] New York State Office of Mental Health (OMH) and [C.]  New York State Office for People With Developmental Disabilities (OPWDD). The department was founded in 1926 as part of a restructuring of the New York state government and was given responsibility for people diagnosed with mental afflictions or epilepsy. 

New York State’s mental health statutes mandate citizens some protections. However, some rights may be excluded owing to medical necessity and are specifically delineated under the same.   Regardless of the living situation, patients have civil rights like [A.]   the right to register and vote in polls [B.] the right to ranking and appointment by civil service, and [C.]  the right to apply and get a warrant, permission, or privilege through civil law. All patients are covered throughout hospitals by the legislation against violence and mistreatment from staffers or other patients.

All patients in New York State’s recovery facilities are afforded several constitutional protections, as long as any other overarching statute does not compromise them. These fundamental personal rights guarantee a balanced and safe lifestyle, cleanliness, and religious freedom, to name a few. 

[1.0] UNDERSTANDING THE NEW YORK MENTAL HYGIENE LAW

Mental illness refers to an affliction with a mental disease or mental condition manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment, and rehabilitation. In this context, the New York State Mental Health Law requires a provider of services, responsible for the operation of a program or network of programs, to be accountable for the patient’s health and well-being. Such entity may be an individual, partnership, association, corporation, limited liability company, or public or private agency, other than an agency of the State, which provides services for persons with mental illness.

It must be noted that under this Act, the director or officer in charge of a facility cannot sanction the legal process service upon any patient. An officer refers to an individual holding office in the New York State Office of Mental Health in this context. However, this is subject to exceptions wherein an order of a New York State court of record or a Federal court can be allowed for the same. This order must be specific and must demonstrate that the court had noticed that the person sought to be served on the date of the order of a patient in such facility. 

Additionally, some legal papers are exempt from this rule. Citations issued by the Surrogate’s Court for probate of wills, letters of administration, and final accounting do not fall within this bracket, as doesn’t the appointment of guardians for individuals who are mentally deficient. Similarly, this would not apply to a notice of the petition for appointment of a committee or conservator and a notice of committee or conservator’s final accounting.

Even when this type of process service is levied upon a patient, the director must be present in the room. If the Director is not available, one of their assistants or the officer in charge must be present. After service, a descriptive note is required to be entered into the patient’s case record, which should comprise a copy of the process served and a copy of the court order. Case record, clinical record, medical record, or patient record refers to the clinical record, which is information concerning or relating to the examination or treatment of an identifiable patient or client maintained or possessed by a facility that has treated or is treating such patient or client. This does not include data disclosed to a practitioner in confidence by other persons based on an express condition that such data would never be disclosed to the patient or client, or other persons.

It is pertinent to note that additional copies of any papers served must be provided. To [A.] the committee, conservator, or guardian of the patient or, if there be none, to the nearest relative or friend, together with an explanatory letter and [B.]the Mental Health Information Service. In the case of a State facility being the service site, a copy of the same must be furnished to the patient resource agent for the facility; and the Department of Law.

[2.0] REQUIREMENTS OF THE DIRECTOR

The director or officer in charge is responsible for distributing the legal papers served upon the facility and/or the patient. Consequently, the director must ensure that the service complies with the statutory requirements laid down. 

The process server must provide six copies of the service when service has been levied on a patient in a State facility. In a private facility, only four copies may be similarly mandated. Furthermore, no signature may be procured without the vouchsafing of the Director in the first instance. This means that no patient is allowed to sign any bill, check, draft, or other indebtedness evidence to make a will without the Director or officer in charge, specifically determining that the patient has the mental capacity and willingness to execute the same. The overarching rule also prevents the patient from executing any contract, deed, mortgage, or other legal conveyance, until after the determination that the patient has the mental capacity and willingness to execute the instrument has been made. The facts and circumstances surrounding such transaction, including the document to be executed by the patient, need to be carefully scrutinized by the director or officer in charge, who shall also interview or cause the patient to be interviewed by a staff physician. 

This interview is significant in assessing the capacity of the patient first-hand. As reported to the director, the physician is responsible for comprehending the patient’s capacity altogether. This means that the patient’s ability to understand the impact of their transaction while also comprehending the ramifications and the action’s very nature must be assessed. Therefore, the consequences of executing and issuance of the instrument must be gauged to prevent mistreatment of the patient. Additionally, it must also be identified whether the patient is actually willing to sign and execute the instrument in the first place. While some patients might understand the consequences of their decision, they might also be brow-beaten from a place of vulnerability into signing the same. Consequently, the role of the caregivers, like the physician’s director, is to ensure that this does not occur. 

If the determination is that the patient has the mental capacity and is willing to execute the instrument, the director or officer in charge can allow the patient to execute the instrument. This, of course, is if the patient does not have a committee, conservator, or guardian who is equipped to make the said decision for them. Once consent has been issued, the director is then required to enter a descriptive note of the transaction. This issuance may either be entered by the director themselves or may be entered by an individual who has been qualified to do so by the director’s instruction. The interviewing physician’s certification must accompany the note of the transaction action that the patient [A.]  understood the nature and consequences of their actions in signing and executing the instrument and [B.] was willing to sign and execute the instrument.

If the patient has a committee, conservator, or guardian, or if the determination is that the patient does not have the mental capacity or the willingness to execute the instrument, the patient is not be permitted to execute the instrument. However, this edict might be overturned by a New York State court of record or a Federal court. This order must indicate that the court was cognizant that the individual was a patient and that the court has notice of the fact that the signature was obtained of the patient at a date where they remained in care as a patient. 

At this point, it must be noted that a patient is entirely allowed to endorse a cheque if the money is meant to be deposited in a bank account under their name. If this is in the case of a State facility, the patient is allowed to endorse a cheque that is to be deposited in their name in the facility’s business office.

[3.0] UNDERSTANDING THE MENTAL HYGIENE LAW IN THE CONTEXT OF THE HIPAA 

The privacy regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (the privacy regulations) have impacted healthcare entities. However, the line between health information in the context of privacy and confidentiality of mental health information also needs to be considered. The effect of the same is less intense, especially since mental health providers already protect the sensitivity of the information they gather strongly.  New York’s Mental Hygiene Law protects the confidentiality of clinical records maintained at facilities licensed or operated by New York’s Office of Mental Health (OMH) or the Office of Mental Retardation and Developmental Disabilities (OMRDD). This is especially important in identifying patients or information that can be used to identify patients to any outside individual. Since these statutes require the patient’s written consent to allow their own identification to anyone except specified individuals or agencies, privacy is clearly regarded highly. 

Under the statutes, legal permission is imperative to allow the disclosure of information. Authorized disclosures are necessary, especially for psychotherapy. Still, HIPAA is less stringent about health information, even allowing process servers to inquire whether the patient is present in the hospital. Hospitals may even be permitted to disclose a patient’s identity (as long as one has applied for the patient or details regarding the patient under the name), the person’s diagnosis, and the position of the individual (unless it includes information protected by HIPAA).  On the other hand, New York law specifies that disclosure of any information can be made only to entities that demonstrate the need for the information and who do not mean any detriment to the patient as well. 

The friction of law is apparent, and the test of demonstrable need is to be kept in mind in mental hygiene, especially.  Under HIPAA, If one is not sure if the person is injured, individuals may even call to check. HIPAA Rules do not preclude anyone from identifying themselves and requesting a patient by name. In the past, hospitals restricted those categories of visitors to immediate families.  This strategy has been developed at most hospitals throughout North America, although it has slowly fallen out of favor.

When a person has been diagnosed and treated for substance abuse or medical treatment, it is sometimes complicated or unlikely to access details about them since inquiries in the hospital in which they are situated could reveal protected information regarding their care. In certain situations, patients may instruct the hospital not to disclose any details about them, which will mean that process servers may not identify where the individual to be served is at the hospital or where within the hospital they have been admitted. 

While New York law generally does not require consent for most treatment and payment purposes, healthcare operations classified under the privacy regulations (disclosure of PHI to auditors that are not government oversight entities or their designees, or disclosure to non-governmental entities for certain business planning and development purposes) is heavily reliant on consent under New York law. In contrast, the privacy regulations would not generally require any form of legal permission. 

Harmonious construction must be assumed for the benefit of the patient. If New York law would be more protective of the patient, it would probably not be pre-empted by the privacy regulations. The same would be considered vice versa for HIPAA privacy regulations. 

For more information on serving legal papers, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us! We also invite you to check out HIPPA Compliance A Complete Breakdown

Sources

1. Mental Hygiene Law § 5.01. “There shall continue to be in the state government a department of mental hygiene. Within the department, there shall be the following autonomous offices: (1) office of mental health; (2) office for people with developmental disabilities; (3) office of alcoholism and substance abuse.

2. As defined in section 1.03 of the Mental Hygiene Law

3. N.Y. Comp. Codes R. & Regs. Tit. 14 § 22.1

(a) Facility shall mean a hospital, school, or alcoholism facility. Such terms are defined in the Mental Hygiene Law for the inpatient care and treatment of the mentally ill, the mentally disabled, or the alcoholic.

(b) Private facility shall mean a facility that requires an operating certificate from the Commissioner of Mental Hygiene.

(c) Patient shall mean a person receiving services in a facility. It includes a resident in a school.

4. section 33.16 of the Mental Hygiene Law

5. Provided that such data has never been disclosed by the practitioner or a facility to any other person

 45 C.F.R. § 160.103.

6.Protected Health Information. The Privacy Rule protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper or oral. The Privacy Rule calls this information “protected health information (PHI).”

7. New York’s Mental Hygiene Law section 33.

8. New York Consolidated Laws, Mental Hygiene Law – MHY § 33.16 Access to clinical records

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