SUBPOENAS 101

Your practice has received a subpoena for client records. What do you need to do?

Don’t panic. This is not unusual. There are several things you need to know up front.

Read the entire subpoena carefully to determine who is asking for the information and, exactly what information you need to send.
Never send more information than is required.
Always send the information securely (e.g., mail, encrypted email, fax).
HIPAA allows a release of information for a valid subpoena.
Failure to respond in time could put you to be in contempt of court and be fined.
You can notify your patient of the subpoena but are not required to do so. Patients cannot tell your practice not to release the information requested in a subpoena. If the patient doesn’t want, you to release the information they must go before a judge and then present you with a court order blocking the subpoena before the subpoena deadline.

Once you know who is requesting the information you can act appropriately. The subpoena is usually issued by one of the following:

a judge for all or part of a patient record
an attorney for all or part of a patient record
an oversight committee (e.g., medical/dental board, OSHA, HIPAA) for one or more patient records and/or other office documentation

Judge Signed Subpoena

Subpoenas need to be read carefully. Sometimes there is a judge signature included in the subpoena that is for the case information, but the subpoena is actually signed by an attorney. Check where the information is to be sent. If the delivery address goes to an attorney, it is an attorney subpoena not a judge ordered subpoena.

If it is a judge ordered subpoena, unless one of the exceptions below apply, release a copy of the requested information to the court in the time frame dictated. You can be assured that your patient has been notified of the subpoena and has already had time to request that it be blocked if they wish This is part of the court’s required process. You do not need to contact the patient.

Attorney Signed Subpoena

If the subpoena is from the attorney representing your patient it may be accompanied by an authorization or an access request signed by the patient. Under the current HIPAA rules an attorney subpoena does not need either. (A request from an attorney that is not a subpoena would need an authorization.) You can release the information on a subpoena to the attorney for your patient without further documentation.

If the subpoena is from the attorney representing the opposite side in the court case, you will need certain assurances before releasing the information. The attorney must include in the subpoena or an accompanying letter that your patient (or their representative/lawyer) has been notified of the subpoena and has had an appropriate length of time to get the subpoena blocked by the court if they wish. If this wording is not included, you should contact the attorney who issued the subpoena and inform them that you cannot fulfill the subpoena until you have that assurance in writing. You can also contact the patient and verify that they have been notified and have no plans to block the subpoena. Be sure to document your conversations. Remember that you cannot ignore the subpoena on just the request of your patient. The patient must provide a court order prior to the deadline on the subpoena by which you must release the information. Remember that you need the written assurance from the attorney or a signed authorization from the patient to fulfill this subpoena.

Oversight Committee Subpoena

Receiving a subpoena from an oversight committee is usually because of an investigation of your practice or a provider at your practice. An oversight committee investigation can include civil law, criminal law and/or ethics. Sometimes it is an investigation of another provider/practice where your records may offer insight into the case. HIPAA allows this kind of release. But if it is your practice being investigated you should get the advice of your attorney. Remember that you cannot ignore a subpoena.

Exceptions

If the records requested contain substance abuse treatment information, they fall under the SAMSHA laws and require extra steps to make sure the subpoena is valid. Consult an attorney if you are not already aware of the rules.

If the doctor (and only the doctor can make this call) feels that the release of the records requested would cause harm to the safety or health of anyone you can appear before a judge and ask for the subpoena to be blocked. The judge will decide if the subpoena is upheld, blocked, or it is to be viewed only by the judge.

If the subpoena is issued by an out-of-state court, you should check with your attorney before releasing records. Many states have laws that may prevent these kinds of subpoenas.

Final Notes

Sometimes a subpoena requires that you deliver the requested information in person and/or to testify in person. If you cannot meet this date or be present on the date you can try to negotiate the terms. The terms are usually more flexible with an attorney subpoena. A judge ordered subpoena, or an oversite committee subpoena may require you to have your attorney help with any negotiations.
If you need to share any protected health information with your attorney, such as to defend you with the oversight committee, your attorney becomes a Business Associate under HIPAA. You will need a Business Associate Agreement with your lawyer if you can’t remove all identifiers from the data.

Follow these guidelines and you should be able to navigate through most subpoena cases. If at any time you question the validity of the subpoena or are confused about the request, you should seek the advice of your attorney.