How to Respond to a Subpoena
What is a Subpoena
A subpoena is a legal document that requires a person or entity to produce documents or to provide testimony in a court case. A person or entity that receives a subpoena has the legal obligation to respond or can face civil or criminal penalties.
You Receive a Subpoena, Now What?
A subpoena arrives at your practice, now what?
Subpoenas can be confusing, even in the best circumstances. When a practice receives a subpoena the most common questions we answer are;
“Do I have to provide the documents requested?” or,
“Can I provide the records or are they protected?”, or
“Do I notify the patient that the records were requested?”.
These questions are good because your practice must comply with both federal and state law when you receive a subpoena.
Most subpoenas received will requests medical records relevant to a civil lawsuit, a workers’ compensation claim or some other matter that does not directly involve your practice. If the subpoena does not directly involve your practice and the practice does not have a vested interest in the outcome of the case the only issue involved is how to properly comply with the laws regarding the production of medical records.
In Virginia, the type of subpoena referenced above is referred to as a “Subpoena Duces Tecum”. Typically, if the request for documents pertains to a matter or claim directly against the practice it would come in the form of a “Request for Production of Documents” and normally that request would be sent directly to the attorney representing the practice.
If your practice receives a subpoena or a Request for Production of Documents in a matter against the practice, you should immediately contact your attorney and/or report it to your insurance carrier’s claims department.
In most cases the subpoena will be for records in a matter or case that the practice is not a party. The remainder of this post will discuss how to handle the subpoena.
We highly recommend having a written protocol on who receives and accepts subpoenas and who responds to subpoenas.
HIPAA’s privacy regulations cover any request for protected health information (PHI), including subpoenas. Often, HIPAA does not allow the release of documents in response to a subpoena. When federal and state laws differ on confidentiality, the strictest of them governs. In most situations, HIPAA rules will control.
UNDER HIPAA, A SUBPOENA THAT IS NOT ACCOMPANIED BY AN ORDER FROM A COURT OR ADMINISTRATIVE AGENCY DOES NOT ALLOW THE CLINIC TO RELEASE MEDICAL RECORDS UNLESS CERTAIN CONDITIONS ARE MET.* There are three primary sets of conditions that allow a clinic to release medical records in response to a subpoena:
- A clinic can honor a subpoena for medical records that is not accompanied by an order if it receives satisfactory assurances from the party seeking the information that reasonable efforts have been made to give the individual whose records are being sought notice of the request.
- A clinic can also honor a subpoena that is not accompanied by an order if it receives satisfactory assurances from the party seeking the information that reasonable efforts have been made by that party to obtain a qualified protective order.
- The clinic can itself take steps to seek a qualified protective order as described above or it can contact the patient. WE DO NOT ADVISE DOING THIS BECAUSE IT PLACES THE BURDEN ON THE CLINIC RATHER THAN WHERE IT BELONGS — ON THE PARTIES TO THE LITIGATION.
If the subpoena is one that meets any of these HIPAA rules, here are some additional basic questions to consider:
- Do you have the records?
You only have to produce records that you have. If, after a reasonable investigation you don’t have responsive documents, respond to the subpoena by explaining that you do not have possession of the records. Records that are in storage are considered records that you have.
- Where is the subpoena from?
If the subpoena is from a government agency, an out-of-state court or a federal court, contact your insurance carrier’s Claims department or your attorney.
- Is the clinic or a provider named in the suit?
As noted above, a subpoena directed to the clinic is most unusual when it is a party to the case. If that occurs, contact your insurance carrier’s Claims department and/or assigned counsel immediately.
- Is the subpoena valid?
This tends to be the most difficult question for recipients of subpoenas. Review compliance with the basic HIPAA rules described above. Determine that the subpoena has been addressed to the clinic, the clinic’s custodian of records or another person who is qualified to certify the requested medical records.
- When must the records be produced?
The subpoena will likely set forth a deadline for producing the records. Most states set a minimum number of days that must be given to comply, such as 20 days after the subpoena was served on the clinic. Furthermore, most states require that you not produce the records earlier than the due date stated on the subpoena. These rules allow the patient time to quash or limit the subpoena if he or she objects to production of the requested records. If the subpoena requires production of records sooner than seems reasonable, you should contact the attorney (or medical records service) who sent the subpoena and advise as to the need for additional time.
- What records must be produced?
Release of records under a subpoena must comply with HIPAA’s privacy regulations. In this context, that means producing only those documents that are responsive to the subpoena. The clinic should read the subpoena carefully and release only those records specifically requested in the subpoena. IT IS NOT THE CLINIC’S RESPONSIBILITY TO DECIDE WHETHER THE PARTY REQUESTING THE RECORDS COULD SATISFY ITS NEEDS WITH A SMALLER SET OF RECORDS.
- Do the records include information subject to heightened confidentiality?
Most states impose heightened confidentiality rules for records of mental health treatment, HIV/AIDS, and drug and alcohol treatment. HIPAA largely defers to those state rules. If you provide care in these areas, you should make yourself aware of the special rules that apply in your state and under HIPAA. In most states, a subpoena by itself is not sufficient to allow the release of records falling into those categories. Call your insurance carrier’s Claims department or your attorney if you are unsure.
- Are the records those of a minor?
The age of majority is usually 18, but this can vary by state and by the type of records, and some states may require or allow older minors to play a role. In general, HIPAA and most states allow parents/guardians of minors to act on the minor’s behalf.
- Has the patient waived the physician-patient privilege?
Generally, this should not be an issue. If the patient has filed a lawsuit that puts his or her medical condition at issue, the physician patient privilege is commonly viewed as waived. More pertinently, the HIPAA subpoena rules discussed above generally mean that there has been patient consent or a court order allowing disclosure. In those situations, the physician-patient privilege is not an issue.
The privilege would be an issue in a situation in which the patient is not a party to the litigation or has otherwise not been notified. In those cases, the subpoena does not override the privilege and it would remain intact and a bar to production of medical records. IN THOSE SITUATIONS, YOU SHOULD NOTIFY THE LAWYER SERVING THE SUBPOENA AND ASK THE ATTORNEY TO SEEK TO OBTAIN A WAIVER OR A COURT ORDER REQUIRING THE DISCLOSURE OF THE RECORDS.