Ortiz v. IOD Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------- X

:

HECTOR ORTIZ, in his capacity as the :

Temporary Administrator for the Estate : 17cv4039(DLC)

of VICKY ORTIZ, individually and on :

behalf of all others similarly : OPINION & ORDER

situated, :

:

Plaintiffs, :

:

-v- :

:

CIOX HEALTH LLC, as successor in :

interest of IOD INC., and THE NEW YORK :

AND PRESBYTERIAN HOSPITAL, :

:

Defendants. :

:

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APPEARANCES

For the Plaintiff:

Lowell J. Sidney

244 5th Avenue, Suite Q278

New York, NY 10001

For Defendant CIOX Health LLC:

Kathryn A. Tiskus

Hodgson Russ LLP

604 Third Avenue, 23rd Floor

New York, NY 10158

Jodyann Galvin

Aaron M. Saykin

Hodgson Russ LLP

140 Pearl Street, Suite 100

Buffalo, NY 14202-4040

For Defendant The New York and Presbyterian Hospital:

John Houston Pope

Epstein Becker & Green, P.C.

250 Park Avenue

New York, NY 10177

DENISE COTE, District Judge:

Hector Ortiz brings this proposed class action against CIOX

Health LLC (“CIOX”) and the New York and Presbyterian Hospital

(“NYPH”). He seeks damages and injunctive relief arising out of

defendants’ alleged violations of New York Public Health Law

§ 18 (“§ 18”), which prohibits health care providers from

charging qualified persons more than $0.75 per page for copies

of their medical records. This Opinion addresses the

defendants’ second motion to dismiss this action. Because there

is no private right of action under § 18, this action is

dismissed.

Background

The facts as alleged in the First Amended Complaint (“FAC”)

have been described in an Opinion of February 22, 2018, which is

incorporated by reference. See Ortiz v. CIOX Health LLC, No.

17cv4039(DLC), 2018 WL 1033237, at *1 (S.D.N.Y. February 22,

2018) (“February 2018 Opinion”). In sum, Vicky Ortiz (“Ortiz”),

through her attorney, made a written request to NYPH for her

medical records in October 2016. The request indicated that,

pursuant to § 18(2)(e), NYPH could not charge Ortiz more than

$0.75 per page. NYPH’s contractor, a predecessor in interest to

CIOX, charged Ortiz $1.50 per page for her medical records.

Ortiz paid the bill and subsequently filed this class action.

Shortly thereafter, CIOX unilaterally refunded Ortiz’s credit

card the amount charged above the $0.75 statutory maximum.

The February 2018 Opinion dismissed several counts of the

FAC but allowed a single claim, for a violation of § 18(2)(e),

to go forward. Id. at *6. On May 14, 2018, Ortiz’s counsel

informed the Court that Ortiz had died. An Order of October 16

granted plaintiff’s application to substitute Hector Ortiz, in

his capacity as temporary administrator of the Ortiz estate, as

the party plaintiff.

On October 31, CIOX and NYPH filed motions for judgment on

the pleadings or to dismiss the remaining cause of action. NYPH

and CIOX assert that the plaintiff lacks standing to pursue

either damages or injunctive relief, that § 18(2)(e) does not

accord a private right of action, that the plaintiff’s proposed

class is overbroad, and that CIOX’s copying costs are not at

issue in this litigation.1 Because § 18(2)(e) does not accord a

private right of action, only the first two claims are

addressed.

1 In the alternative, NYPH moves for certification of an

interlocutory appeal of certain jurisdictional rulings in the

February 2018 Opinion and the viability of an implied private

right of action under § 18.

Discussion

I. Article III Standing

“Whether a plaintiff possesses standing to sue under

Article III is the threshold question in every federal case,

determining the power of the court to entertain the suit.” Nat.

Res. Def. Council v. Nat’l Highway Traffic Safety Admin., 894

F.3d 95, 103 (2d Cir. 2018) (citation omitted). To establish

Article III standing, a plaintiff must demonstrate:

(1) injury-in-fact, which means an actual or imminent

and concrete and particularized harm to a legally

protected interest; (2) causation of the injury, which

means that the injury is fairly traceable to the

challenged action of the defendant; and (3)

redressability, which means that it is likely, not

speculative, that a favorable decision by a court will

redress the injury.

Id. (citation omitted). A plaintiff “must demonstrate standing

for each claim he seeks to press and for each form of relief

that is sought.” Davis v. FEC, 554 U.S. 724, 734 (2008)

(citation omitted). “Although past injuries may provide a basis

for standing to seek money damages, they do not confer standing

to seek injunctive relief unless the plaintiff can demonstrate

that she is likely to be harmed again in the future in a similar

way.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir.

2016). “That a suit may be a class action adds nothing to the

question of standing, for even named plaintiffs who represent a

class must allege and show that they personally have been

injured, not that injury has been suffered by other,

unidentified members of the class to which they belong.”

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 n.6 (2016)

(citation omitted).

CIOX and NYPH moved earlier in this case to dismiss Ortiz’s

claims for lack of standing. They argued that Ortiz lacked

standing to pursue her claims for damages because the FAC failed

to allege that she, rather than her attorney, was injured. They

also argued that the FAC failed to allege a likelihood of future

injury sufficient to confer standing for injunctive relief.

They further argued that, even if Ortiz had standing at one

point, her claims became moot when CIOX unilaterally refunded to

her credit card the amount of the alleged overcharge. Each of

these arguments was rejected in the February 2018 Opinion. See

Ortiz, 2018 WL 1033237, at *2-3.

In their current motion, the defendants reframe their

mootness argument as a standing argument. It remains a mootness

argument, see Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 189 (2000), and it was

properly rejected as such in the February 2018 Opinion. Ortiz,

2018 WL 1033237, at *3; Geismann v. ZocDoc, Inc., 909 F.3d 534,

543 (2d Cir. 2018).

The defendants additionally argue that, because Ortiz

recently died, Hector Ortiz does not have standing to pursue

claims for injunctive relief on her behalf. The defendants are

incorrect. Although Ortiz has died, it is plausible that her

estate will need to obtain copies of her medical records in

connection with the administration of her estate. Section 18

allows representatives of a decedent’s estate to obtain medical

records; persons with power of attorney to make such requests

are “qualified persons” under the statute. See N.Y. Pub. Health

L. (“PHL”) § 18(1)(g). Hector Ortiz brings this litigation in

his capacity as temporary administrator of Ortiz’s estate. As

such, Ortiz’s death does not impact Hector Ortiz’s standing to

seek injunctive relief.

II. Private Right of Action

Defendants seek judgment on the pleadings on the grounds

that § 18(2)(e) contains neither an express nor implied private

right of action. The defendants are correct.

Section 18 does not contain any express grant of a private

right of action. Where a statute does not expressly provide for

a private right of action, a plaintiff “can seek civil relief in

a plenary action based on a violation of the statute only if a

legislative intent to create such a right is fairly implied in

the statutory provisions and their legislative history.” Cruz

v. TD Bank, N.A., 22 N.Y.3d 61, 70 (2014) (citation omitted).

“[I]t is for the courts to determine, in light of those

provisions, particularly those relating to sanction and

enforcement, and their legislative history . . . what the

Legislature intended.” Burns Jackson Miller Summit & Spitzer v.

Linder, 59 N.Y.2d 314, 325 (1983); see also Uhr v. E. Greenbush

Cent. Sch. Dist., 94 N.Y.2d 32, 38 (1999).

The New York Court of Appeals has articulated a three-part

test to govern this inquiry. Courts must determine “(1) whether

the plaintiff is one of the class for whose particular benefit

the statute was enacted; (2) whether recognition of a private

right of action would promote the legislative purpose; and (3)

whether creation of such a right would be consistent with the

legislative scheme.” Cruz, 22 N.Y.3d at 70 (citation omitted).

Among these factors, the third is the “most important.” Id.

The “[a]nalysis begins, of course, with the statute

itself.” Burns Jackson, 59 N.Y.2d at 325; see also Nat. Res.

Def. Council, Inc. v. U.S. Food and Drug Admin., 760 F.3d 151,

172 (2d Cir. 2014). New York’s Public Health Law provides a

comprehensive framework for the regulation of public health

services. It establishes the powers, functions, and duties of

the Department of Health, and it provides, among other things,

the laws and regulations that govern state laboratories, local

health organizations, public water supplies, and state and

federal aid.

Since at least 1953, when the Public Health Law was

recodified to reflect its current organization, the law has

provided two mechanisms to enforce its provisions: a civil

penalty, imposed by the Commissioner of Health, or an action

pursuant to Article 78 of the Civil Practice Law and Rules.

Compare 1953 N.Y. Sess. L., ch. 879, §§ 12-13, with PHL §§ 12-

13. Section 12 of the Public Health Law authorizes the

Commissioner of Health to impose a fine of $2,000 per violation

-- escalating to up to $5,000 for any subsequent violation -- on

“any person who violates . . . any term or provision of this

chapter . . . for which a civil penalty is not otherwise

expressly prescribed by law.” PHL § 12(1)(a)-(b).2 Section 13

provides that “[t]he performance of any duty or the doing of any

act enjoined, prescribed or required by this chapter, may be

enforced by a proceeding pursuant to article seventy-eight of

the civil practice law and rules . . . .” Id. § 13. As has

been true since 1953, a proceeding under Article 78 may be

brought by a state agency or by “any citizen of full age

resident of the municipality where the duty should be performed

or the act done.” Id.

2 Section 12 was recently amended with certain changes going into

effect beginning April 1, 2020. Those amendments would allow

the Attorney General, upon request of the Commissioner of

Health, to bring an action for injunctive relief. The amendment

effective April 1, 2020 further provides that, “it is the

purpose of this section to provide additional and cumulative

remedies, and nothing herein contained shall abridge or alter

rights of action or remedies now or hereafter existing . . . .”

PHL § 12(6) (effective Apr. 1, 2020).

On July 21, 1986, the New York Legislature amended the

Public Health Law by adding § 18, which allows patients and

other “qualified persons” access to patient medical records.

1986 N.Y. Sess. L., ch. 497, § 1. Section 18(2)(a) requires

health care providers to provide an opportunity for the

inspection of patient information on written request. Section

18(2)(d) provides a right to a copy of patient records. It

states that, “upon the written request of any qualified person,

a health care provider shall furnish to such person, within a

reasonable time, a copy of any patient information

requested . . . .” PHL § 18(2)(d).3

The statute also gave providers a right to reimbursement.

Section 18(2)(e) authorizes the provider to impose “a reasonable

charge for all inspections and copies, not exceeding the costs

incurred by such provider.” Id. § 18(2)(e). It further

provides that “[a] qualified person shall not be denied access

to patient information solely because of inability to pay.” Id.

The 1986 amendment to the Public Health Law also authorized

health care providers to restrict a qualified person’s access to

medical records in certain circumstances. Under § 18(3), a

health care provider “may deny access to all or a part of the

3 All citations are to the current version of the statute.

Unless otherwise noted, language quoted from § 18 is unchanged

since 1986.

information” if, for example, the records requested would

“reasonably be expected to cause substantial and identifiable

harm to the subject.” Id. § 18(3)(d). In the event of a denial

of access, § 18(3)(e) grants the qualified person an

administrative remedy in the form of a “right to obtain, without

cost, a review of the denial by the appropriate medical record

access review committee.” Id. § 18(3)(e).4 In the event the

committee denies access “in whole or in part,” it is required to

“notify the qualified person of his or her right to . . .

commence, upon notice, a special proceeding in supreme

court requiring the provider to make available the information

for inspection or copying.” Id. § 18(3)(f).

This right to judicial review, however, was accompanied by

more limited remedies than those ordinarily available in an

Article 78 special proceeding. Article 78 generally permits

recovery for “restitution or damages . . . incidental to the

primary relief sought.” C.P.L.R. § 7806; Kirschner v. Klemons,

225 F.3d 227, 238-39 (2d Cir. 2000). The 1986 amendment

prohibited qualified persons from seeking incidental damages.

It provided that “the relief available pursuant to [§ 18(3)(f)]

shall be limited to a judgement requiring the provider to make

4 The Commissioner of Health is required by statute to “designate

medical record access review committees to hear appeals of the

denial of access . . . .” PHL § 18(4).

available to the qualified person the requested information for

inspection or copying.” PHL § 18(3)(f). Section 18(11)

provided that “[n]o proceeding shall be brought or penalty

assessed, except as provided for in this section, against a

health care provider, who in good faith, denies access to

patient information.” Id. § 18(11).

Against this backdrop, on June 12, 1991, the New York

Legislature passed an amendment to § 18 that is the subject of

this litigation. 1991 N.Y. Sess. L., ch. 165, § 49. That

amendment added a single sentence to § 18(2)(e), limiting the

“reasonable charge” which a health care provider may impose in

connection with copies of medical records to not more than $0.75

per page. As currently enacted, § 18(2)(e) provides as follows:

The provider may impose a reasonable charge for all

inspections and copies, not exceeding the costs

incurred by such provider . . . . However, the

reasonable charge for paper copies shall not exceed

seventy-five cents per page. A qualified person shall

not be denied access to patient information solely

because of inability to pay.

PHL § 18(2)(e) (emphasis added).

At issue is whether, by prohibiting health care providers

from charging more than $0.75 per page in connection with

inspecting or copying medical records, the Legislature implied a

private right of action. For the reasons described below, the

text, structure, and legislative history of § 18(2)(e) do not

permit a finding that New York’s Legislature intended to create

a private right of action.

As a threshold matter, there is no dispute that the first

factor weighs in favor of recognizing a private right of action

for violations of § 18(2)(e). The price-per-page provision was

added to § 18 in 1991, five years after the Legislature first

afforded consumers an opportunity to inspect and obtain copies

of their medical records. 1991 N.Y. Sess. L., ch. 165, § 49.

The provision capped the charges health care providers may

impose on qualified persons for medical records. Ortiz is among

those qualified persons for whose particular benefit § 18(2)(e)

was enacted. See Cruz, 22 N.Y.3d at 70.

It is less clear that the recognition of a private right of

action would promote the legislative purpose in enacting the

statute, which is the second factor. The one-sentence amendment

that was made to § 18 was a miniscule part of a massive overhaul

to the Public Health Law that principally revised New York’s

Medicaid program. See 1991 N.Y. Sess. L., ch. 165. When the

bill was submitted to then Governor Mario Cuomo for approval, a

Memorandum from the Senate and various submissions were included

in the Bill Jacket for the Governor’s review.5 Broadly speaking,

5 The New York Court of Appeals commonly relies on submissions

included in the Bill Jacket as a source of legislative history.

See, e.g., Kimmel v. State, 29 N.Y.3d 386, 398-400 (2017)

(citing various submissions included in a Bill Jacket).

the Senate Memorandum explains that the purpose of the Act is

“to restrain the rapid growth in costs of the Medicaid system”

through “structural changes in the way Medicaid services are

provided.” Senate Memorandum, Bill Jacket, L. 1991, ch. 165, at

19.

Two submissions included in the Bill Jacket -- one from the

New York State Office for the Aging and one from the New York

Public Interest Research Group -- addressed the price-per-page

provision in § 18 specifically. Both submissions supported the

amendment as a means of curbing fees associated with access to

medical records. The submission by the Office for the Aging

stated, in part:

These Sections impose a ceiling on the amount that may

reasonably be charged for paper copies of medical

records requested by patients and other “qualified

persons.” The New York State Office for the Aging

supports this measure and recommends careful

monitoring to help ensure that the ceiling of seventy-

five cents per page not become a standard charge. The

reasonable cost of providing many medical records is

less than seventy-five cents per page.

Letter from the Office for the Aging, Bill Jacket, L. 1991, ch.

165, at 50. By enacting the price-per-page provision, the

Legislature clearly intended to control patient costs associated

with access to medical records. Because the threat of an

additional enforcement mechanism -- civil lawsuits against

health care providers -- would likely add to the growth in

medical costs, it is debatable whether recognition of a private

right of action would promote the legislative purpose, whether

considered from the perspective of either § 18 alone or in the

context of the 1991 revisions to the Public Health Law in their

entirety.

The third factor is whether recognition of a private right

of action “would be consistent with the legislative scheme.”

Cruz, 22 N.Y.3d at 70 (citation omitted). When discussing the

third factor, the Court of Appeals has repeatedly emphasized

deference to the enforcement mechanisms chosen by the

Legislature:

[T]he Legislature has both the right and the authority

to select the methods to be used in effectuating its

goals, as well as to choose the goals themselves.

Thus, regardless of its consistency with the basic

legislative goal, a private right of action should not

be judicially sanctioned if it is incompatible with

the enforcement mechanism chosen by the Legislature or

with some other aspect of the over-all statutory

scheme.

Id. at 70-71 (quoting Sheehy v. Big Flats Cmty. Day, 73 N.Y.2d

629, 634-35 (1989)). A potent enforcement mechanism reflects a

legislative judgment that courts should not readily dismiss.

See Rhodes v. Herz, 920 N.Y.S.2d 11, 18 (App. Div. 1st Dep’t

2011). “Where the Legislature has not been completely silent

but has instead made express provision for a civil remedy,

albeit a narrower remedy than the plaintiff might wish, the

courts should ordinarily not attempt to fashion a different

remedy, with broader coverage . . . .” Sheehy, 73 N.Y.2d at

636. For this reason, the Court of Appeals has declined to

recognize a private right of action where “the Legislature

specifically considered and expressly provided for enforcement

mechanisms in the statute itself.” Cruz, 22 N.Y.3d at 71

(citation omitted).

The New York Legislature has provided two mechanisms to

enforce the $0.75 maximum copying charge described in

§ 18(2)(e). First, under § 12, the Legislature has authorized

the Commissioner of Health to impose substantial fines for

violations of any provision of the Public Health Law “for which

a civil penalty is not otherwise expressly prescribed by law.”

PHL § 12(1)(a)-(b). Because § 18(2)(e) does not prescribe a

civil penalty, a violation of its terms may be subject to

enforcement through § 12. Second, under § 13, the Legislature

has allowed New York citizens to enforce any provision of the

Public Health Law through an action under Article 78. The

parties agree that an action under Article 78 would have allowed

Ortiz to obtain a judgment compelling NYPH to provide her with

copies of her medical records in compliance with § 18(2)(e) --

that is, at a reasonable charge not more than $0.75 per page.

See In re Barbara Halio v. IOD Inc., 928 N.Y.S.2d 812, 812 (Sup.

Ct. Nassau Cty. 2011) (petition to compel medical records at no

more than $0.75 per page); In re Casillo v. St. John’s Episcopal

Hosp., Smithtown, 580 N.Y.S.2d 992, 993 (Sup. Ct. Suffolk Cty.

1992) (petition to forward medical records at no more than $0.75

per page).

The authorization of enforcement by the Commissioner of

Health and the provision of a remedy pursuant to Article 78 are

each sufficient to foreclose the recognition of a private right

of action. See, e.g., Schlessinger v. Valspar Corp., 686 F.3d

81, 87 (2d Cir. 2012) (“Section 395-a [of the N.Y. General

Business Law] expressly provides that the Attorney General may

bring suit against those who violate its mandate, so a private

right of action would not be consistent with legislative

intent.”); Signature Health Cntr. LLC v. State, 935 N.Y.S.2d

357, 362 (App. Div. 3d Dep’t 2011) (declining to imply private

right of action under New York Public Health Law § 2807 where

“there is no dispute that [plaintiffs] can obtain incidental

monetary damages . . . in the context of a CPLR article 78

proceeding”).

The Legislature’s intent to limit the scope of the remedies

under § 18 is confirmed by other provisions of the statute. In

§ 18(3), for example, the Public Health Law provides that, in

the event of a denial of access to medical records, a qualified

person may seek review by a committee designated by the

Commissioner of Health. PHL § 18(3)(f), (4). If the committee

reaches an adverse decision, § 18 further authorizes the

qualified person to seek judicial review in an Article 78

proceeding.6 Id. § 18(3)(f). Although § 18(3)(f) prohibits

recovery of incidental damages that may ordinarily be recovered

in an Article 78 proceeding, it allows for “a judgment requiring

the provider to make available to the qualified person the

requested information for inspection or copying.” Id.

Section 18(11) provides further protection for health care

providers against lawsuits. It prohibits any other proceedings

or penalties against health care providers who, “in good faith,

deny access to patient information.” Id. § 18(11).7

Given that the Legislature established specific

administrative and judicial remedies in § 18, “[i]t is fair to

infer that the Legislature considered carefully the best means

for enforcing the provisions of [the statute], and would have

created a private right of action . . . if it found it wise to

do so.” McLean v. City of New York, 12 N.Y.3d 194, 201 (2009);

6 An action pursuant to N.Y. C.P.L.R. Article 78 is a “special

proceeding.” N.Y. C.P.L.R. § 7804.

7 Sections 18(12) further immunizes health care providers from

liability “arising solely from granting or providing access to

any patient information in accordance with this section.”

Although Sections 18(11) and (12) do not provide immunity for

overcharges in violation of § 18(2)(e), see Spiro v. Healthport

Tech., 73 F. Supp. 3d 259, 273 (S.D.N.Y. 2014), they should not

be read to imply a private right of action by negative

implication. As the Court of Appeals explained in Cruz, “this

would be an unusual application of the expressio unius doctrine

for it is typically used to limit the expansion of a right or

exception -- not as a basis for recognizing unexpressed rights

by negative implication.” Cruz, 22 N.Y.3d at 72.

see also Franza v. State, 83 N.Y.S.3d 361, 363 (App. Div. 3d

Dep’t 2018) (citation omitted) (finding private right of action

“inconsistent with the legislative scheme” where statute

“provides recourse under CPLR article 78”). While the

Legislature could have crafted a broader remedy, “[t]his is not

a case where the Legislature has simply prohibited or required

certain conduct, and left the mechanism of enforcement to the

courts.” McLean, 12 N.Y.3d at 201.8 Accordingly, a private

right of action would not be consistent with the legislative

scheme.

The plaintiff argues that a private right of action should

be allowed because § 18(2)(e) uses mandatory language that

confers rights on particular individuals. He principally relies

on Maimonides Med. Cent. v. First United Am. Life Ins. Co., 981

N.Y.S.2d 739 (App. Div. 2d Dep’t 2014), and Medicare

Beneficiaries Def. Fund v. Memorial Sloan-Kettering Cancer

Cent., 603 N.Y.S.2d 1016 (Sup. Ct. N.Y. Cnty. 1993), which

recognized private rights of action. His arguments are

unavailing.

In both of these cases, the courts found a private right of

8 Plaintiff’s citation to Negrin v. Norwest Mortgage, Inc., 700

N.Y.S.2d 184 (App. Div. 2d Dep’t 1999), is for this reason

inapposite. In Negrin, the statute provided “no regulatory

agency that would otherwise enforce compliance” with the law.

Id. at 191.

action to exist when construing clauses contained within

statutory provisions that were addressed directly to the

remedies for a violation. Section 18(2)(e) is not a remedies

provision; its is a standards provision.

In Maimonides, the court construed a New York insurance law

that imposed standards upon insurers for prompt payment of

claims. 981 N.Y.S.2d at 741. In a section setting out remedies

for the failure to comply with those standards, the statute

stated:

In addition to the penalties provided in this chapter,

any insurer . . . that fails to adhere to the

standards contained in this section shall be obligated

to pay to the health care provider or person

submitting the claim, in full settlement of the claim

or bill for health services, the amount of the claim

or health care payment plus interest.

N.Y. Ins. L. § 3224-a (emphasis added). The court found that

the obligation “to pay . . . the claim,” found in the remedies

section of the statute, authorized a private right of action.

Maimonides, 981 N.Y.S.2d at 747-50.

Likewise, in Medicare Beneficiaries Def. Fund, the court

addressed a clause in the statute’s description of a remedy, in

this case for a physician’s overcharge of Medicare

beneficiaries. 603 N.Y.S.2d at 1017-18. The statute provided

that “a physician who is determined . . . to have violated the

provisions of this section shall be subject . . . to a

fine . . . . In addition, . . . the physician shall refund to

the beneficiary the amount collected in excess of the

limitations [provided herein].” PHL § 19(4)(emphasis added).

Thus, the court found that the statute authorized suit for not

only a fine but also for a refund. In both Maimonides and

Medicare Beneficiaries, therefore, the statutes expressly

mandated, within their remedies provisions, the payment of a

claim or a refund following a violation of the statute.

The sentence setting forth the maximum price-per-page in

§ 18(2)(e) bears none of the hallmarks of the provisions which

the courts in Maimonides and Medicare Beneficiaries found to

imply a private right of action. Section 18(2)(e) sets forth

the standards with which providers must comply when providing

access to medical records. Section 18(2)(e) is not a remedies

provision and therefore the sentence at issue does not appear in

the midst of a remedies provision. Moreover, the sentence

itself sets out a maximum charge but not a remedy for an

overcharge. It cannot fairly be read to authorize a private

right of action if the provider charged the person requesting a

copy of the records over $0.75 per page.

Plaintiff’s citation to Medicare Beneficiaries Def. Fund is

unavailing for other reasons as well. Medicare Beneficiaries

concerned § 19 of the Public Health Law, where the Legislature

required physicians to “refund to the beneficiary the amount

collected in excess” of the “reasonable charge.” PHL § 19(1),

(4). Section 19 was added to the Public Health Law in July 1990

during the 213th legislative session. 1990 N.Y. Sess. L, ch.

572. In the very next session -- less than one year later --

the Legislature enacted the amendment to § 18(2)(e) capping the

reasonable charge for copies of medical records at $0.75 per

page. 1991 N.Y. Sess. L., ch. 165, § 49. Although enactment of

these two provisions are nearly contemporaneous, only § 19

requires a refund of charges that exceed the statutory limit.

“A due respect for the competence of the Legislature requires us

to conclude that the [different] remedial choices it made were

considered choices.” People ex rel. Spitzer v. Grasso, 836

N.Y.S.2d 40, 49 (App. Div. 1st Dep’t 2007). Without “strong

indicia of a contrary congressional intent,” it would be

inappropriate to disturb this legislative judgment. Id.

(declining to recognize a private right of action where statute

authorized enforcement by the Attorney General).

Plaintiff next argues that a private right of action is

appropriate because “no special agency expertise is required to

determine whether Defendants charged more than the statutory

maximum.” A court’s competence to perform calculations is not a

sufficient basis for concluding that a private right of action

is consistent with the legislative scheme. In any event,

plaintiff is wrong to assume that actions brought under

§ 18(2)(e) would be resolved by simple calculation. Section

18(2)(e) principally requires health care providers to impose “a

reasonable charge . . . not exceeding the costs incurred by such

provider.” PHL § 18(2)(e). Calculating damages in those cases

could require resource-intensive litigation. As the court in

Casillo explained in 1992, “[t]he 1991 amendments capping

copying costs within the definition of ‘reasonable charge’ was

not intended to create a plethora of litigation where the courts

would be forced to determine what is an allowable fee in this

case or that case.” 580 N.Y.S.2d at 998.

Finally, plaintiff emphasizes that, in several other cases,

courts appear to have assumed that § 18(2)(e) accords qualified

persons a private right of action for damages. One of these

decisions, Ruzhinskaya v. Healthport Techs., LLC, 291 F. Supp.

3d 484 (S.D.N.Y. 2018), which includes other claims besides a

§ 18 claim, is currently pending before the Second Circuit Court

of Appeals.9 Id. at 502-03. But none of the cases to which

plaintiff cites have decided the issue on the merits. The

instant case appears to be the first case to squarely present

the issue for judicial resolution. And, for the reasons stated

above, a private right of action cannot fairly be implied by the

9 An earlier opinion in that case assumed the existence of a

private right of action but noted that § 18’s “text and history

are silent as to the manner in which a requester’s right not to

be overcharged may be vindicated in court.” Ruzhinskaya, 311

F.R.D. 87, 97 (S.D.N.Y. 2015).

text and legislative history of §$ 18(2) (e).

Conclusion

Defendants’ October 31, 2018 motions for judgment on the

pleadings are granted. The Clerk of the Court is directed to

close the case.

Dated: New York, New York

May 7, 2019

DENISE COTE

United Btates District Judge

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