There are several reasons that a practice may receive a subpoena for testimony or records, or be ordered to provide information by a court. Often it will be for patient-related matters that do not directly involve litigation with the practice. Recipients may be tempted to assume that automatic compliance will afford the greatest legal protection. However, that assumption can create legal exposure.
It’s understandable to assume that judges and litigators issuing orders and subpoenas are responsible for ensuring that the documents and information provided are in compliance with the various legal frameworks applicable to health care providers. However, the depth and breadth of the legal profession is not easily comprehensible. All attorneys must, by necessity, become specialists in one or more areas of the law, leaving them without a detailed understanding of the practice areas that are not part of their daily work. Judges and litigators are no exception.
Compliance with the rules applicable to heath care providers is the healthcare provider’s responsibility. So, what should a provider do when they receive a subpoena or court order? They’ll need to comply with state and local procedural rules, review what they receive to ensure compliance with applicable privacy laws, and try not to alienate any judges.
State and Local Rules
Each jurisdiction has its own rules about how subpoenas must be “served,” which is a fancy way of saying “how it must be delivered to you.” They may also have specific rules about how far in advance of trial it must be served and how quickly you have to comply or otherwise respond before your practice is in violation of the law. And, if that’s not complicated enough, timing can also vary by the type of the matter – civil, criminal, or juvenile.
In Tennessee, subpoenas for witnesses in civil matters must be served by “delivering or offering to deliver a copy thereof to the person to whom it is directed.” Tenn. R. Civ. P. 45.03. So, depending on the circumstances, a provider might want to take the opportunity to object to a subpoena received by email or fax. In our firm’s local county, subpoenas also have to be “filed with the Clerk at least ten (10) days prior to the date of the trial.” See Knox County Circuit Court, Rule II.
Federal Regulations
Healthcare providers are Covered Entities under the Health Insurance Portability and Accountability Act and its corresponding regulations (“HIPAA”), which means that the thorny provisions of HIPAA are going to apply to any request for records. Health care providers running substance use treatment programs may also be legally obligated to comply with federal substance use disorder regulations codified in 42 Code of Federal Regulations Part 2, which is referred to simply as “Part 2.”
For example, under HIPAA, providers may disclose protected health information in response to a proper court order or a subpoena if it is provided along with a compliant patient consent or certain “satisfactory assurances.” See 45 C.F.R. § 164.512(e). These satisfactory assurances may take the form of specified patient notification or a qualified protective order. Sometimes, litigators will take the additional step to obtain patient consent, for the sake of efficiency. It is still the provider’s responsibility to ensure that consent is sufficient under HIPAA.
Under Part 2, the requirements get more restrictive. Barring certain exceptions, Part 2 programs may not disclose substance use information in response to any subpoena that is unaccompanied by a compliant court order. There are entire sections of the Part 2 regulations describing the particulars of the hearings that must be held, what a court must find, and what must be included in orders for civil and criminal matters.
So, What is a Proper Response?
It depends. The options are to comply, object (or move to quash), or ignore it. There are risks associated with each of these approaches that need to be considered. Automatic compliance is not without risk and may be a violation of HIPAA or Part 2. This can cause discomfort for subpoena recipients, as the judge or issuing attorney will likely expect compliance with an otherwise valid order/subpoena. However, violations of HIPAA or Part 2 may result in civil or criminal penalties. So, it is important for providers to be able to object and refuse to comply in a respectful and informative manner, if needed.
In certain circumstances, it may be acceptable to ignore the subpoena/order, if the issuing party clearly lacks jurisdiction. However, failure to comply with a valid and compliant subpoena/order is a violation of the law, and failing to object to a non-compliant order can place providers in the unenviable position of needing to comply with an order that also requires them to break the law.
Because responding to subpoenas is fraught with potential missteps and is highly fact-specific, it’s best to consult with attorneys familiar with both litigation and privacy law. Then, once a provider has experienced several fact patterns multiple times, they may gain confidence in their ability to know when counsel is needed and when it’s likely safe to comply.
Legal questions are highly fact-specific. Therefore, this information is being provided for educational and informational purposes only, does not constitute legal advice, and may not be relied upon in any specific set of circumstances. Nothing contained in London & Amburn’s webpages, posts, or articles establishes an attorney-client relationship. For legal advice, please engage the services of a licensed attorney.
