There are various ways to answer a subpoena for health records based on the subpoena issuer and the type of subpoena (deposition, witness, or duces tecum). It is essential to answer properly when health records are subpoenaed considering that wrong responses can cause HIPAA violations. That is why healthcare companies and administrators must get legal advice to determine if medical records may be subpoenaed in the particular situations of every subpoena.
The importance of the issuer of the subpoena is that a healthcare provider cannot refuse a court order, a subpoena that is signed by a magistrate, judge, or administrative tribunal, or a subpoena by a grand jury. In these instances, it is required to observe the subpoena for medical records and take action by sharing the PHI specifically asked for by the subpoena – even though the information of the subpoena is subject to the Privacy Rule provisions (for example, return or removal of PHI, etcetera).
In case a court clerk or lawyer signs a subpoena, HIPAA may require more assurances. For instance, when a subpoena asks for medical records associated with substance abuse disorder, the medical records are not valid except if it is supported by a signed court order allowing the disclosure. In the same way, when patient authorization is necessary to answer a subpoena, healthcare companies must utilize their own authorization form instead of a waiver together with the subpoena sent by a lawyer.
Not Accepting a Subpoena for Medical Records
Healthcare companies can choose not to accept a subpoena for medical records if a court clerk or lawyer has signed it for different reasons. These consist of (but aren’t restricted to):
- The subpoena doesn’t give the healthcare company enough time to gather the data asked for.
- The subpoena calls for the disclosure of PHI needing consent and it is not possible to get consent from the patient.
- The subpoena produces undue stress on the healthcare company – usually when the PHI of several patients is required for a class action.
The subpoena is irrational or oppressive, or it is procedurally faulty (i.e., there was no requested protective order to avoid additional disclosures).
Typically there is a period of time for submitting a subpoena objection, and this could change based on where the subpoena is released. In the same way, there could be other explanations for objecting to a subpoena for medical records based on state legislation. Therefore, professional and specialist legal counsel is required for the particular situations of every subpoena, and healthcare companies and administrators must always acquire legal counsel prior to answering a subpoena for medical records.