Responding to Federal Subpoenas Seeking Medical or Financial Records

Responding to Federal Subpoenas Seeking Medical or Financial Records

Receiving a subpoena for medical or financial records can be intimidating. However, with some basic knowledge about the rules and best practices for responding, you can handle subpoenas confidently and appropriately. This article provides an overview of federal subpoenas, with tips for physicians, healthcare organizations, and other custodians of sensitive records.

What is a Subpoena?

A subpoena is a written order issued by a court directing a person or organization to produce documents, give testimony, or both. There are two main types of subpoenas:

• A subpoena ad testificandum orders an individual to testify at a proceeding or deposition.
• A subpoena duces tecum orders a person or organization to produce documents or records.

Subpoenas are used in both criminal and civil cases. They are issued directly by the court overseeing the legal proceedings. Failure to comply with a subpoena may constitute contempt of court, which can result in fines or imprisonment^[1].

Receiving a Federal Subpoena

Only federal courts can issue subpoenas for federal criminal investigations or cases. State courts may also issue subpoenas, but they only have jurisdiction within the borders of that state. So if you receive a subpoena from a state court in a different state, you may be able to challenge it on jurisdictional grounds.

Federal subpoenas will clearly indicate they are issued by a U.S. District Court. They contain the name and contact information for the court and case number. If a subpoena does not provide this information, it may not be valid^[2].

Responding to a Federal Subpoena Duces Tecum

If you receive a federal subpoena duces tecum requesting medical records, financial documents, or other sensitive information, you cannot simply turn over the records. Federal and state laws impose restrictions on disclosing certain types of confidential information.

Here are important steps to take when responding to subpoenas for protected records:

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1. Review the subpoena for validity – Check that it is issued by a federal court and provides all required information.
2. Determine if the records requested are protected – Medical, financial, education records generally require special handling.
3. Consult legal counsel – An attorney can advise if the subpoena is valid and enforceable.
4. Consider notifying the patient/customer – If permitted, inform them of the request and get consent to release records.
5. Provide required notice to the requesting party – You may need to formally object in writing.
6. Negotiate the scope of the request – Seek to narrow the request to essential information only.
7. Get a court order – For some protected records, a subpoena alone is not sufficient authority to release them.
8. Release records accordingly – Only provide what is expressly permitted by law and the court.

The general rule is to not release any confidential information until you have determined the legal requirements and any objections have been addressed. Consult with an attorney before disclosing protected records in response to a subpoena^[3].

Objecting to a Subpoena

The party that issued the subpoena must be notified of any objections you have. Specific procedures apply:

• Written objection must be made before the compliance deadline.
• The objection should clearly state which requests are improper and why.
• File a copy of the objection with the court.
• Continue negotiating a resolution – most disputes can be resolved without court intervention.
• If no agreement is reached, a motion to quash the subpoena may be filed.

Quashing a Subpoena

A motion to quash asks the court to vacate or modify the subpoena. Grounds for quashing include:

• Subpoena requires disclosure of privileged/protected information.
• Subpoena imposes undue burden or expense.
• Subpoena was issued in bad faith or to harass.
• Subpoena requests information not relevant to the case.

The court will review the motion and determine if the subpoena is unreasonable or oppressive. If so, it may be quashed or modified^[4].

Subpoenas for Medical Records

Medical records deserve special consideration when responding to subpoenas. Protected health information (PHI) is confidential and regulated under federal and state laws.

HIPAA Privacy Rule

The HIPAA Privacy Rule restricts release of PHI. A subpoena alone is usually insufficient – a court order or patient authorization is also required. The Privacy Rule outlines permitted disclosures for judicial/administrative proceedings^[5].

State Medical Privacy Laws

Most states have laws protecting medical records that impose requirements beyond HIPAA. These may include:

• Patient notice before records are released.
• Opportunity for patient to object or move to quash.
• Records can only be used for purposes stated.
• Special procedures for mental health, HIV, substance abuse records.

When federal and state laws differ, the more stringent law applies. Consult counsel to identify all applicable laws^[6].

Substance Abuse Treatment Records

Records related to substance abuse treatment are subject to stringent confidentiality protections under federal and state laws. Key requirements include:

• The federal Confidentiality of Substance Use Disorder Patient Records rule (42 CFR Part 2) restricts disclosure of substance abuse treatment records. Patient consent is generally required.
• Exceptions allow disclosure for medical emergencies, research, audits, etc. but detailed requirements must be followed.
• Part 2 restrictions continue to apply to original substance abuse records even after they are disclosed to third parties.^[1]
• Comparison charts outline differences between Part 2 and HIPAA.^[2]
• State laws may impose additional confidentiality requirements.
• Violating substance abuse confidentiality can result in criminal penalties.

Proper handling of subpoenas for these records usually requires patient consent or a court order. The court must find “good cause” considering both privacy interests and public interest in disclosure.^[3]

Substance abuse disorders affect millions of Americans and are associated with high healthcare utilization.^[4] Follow-up care after intensive treatment is crucial to prevent relapse and readmissions.^[5] Resources like the National Council on Alcoholism and Drug Dependence and SAMHSA Treatment Locator can help connect patients to appropriate programs.^[6]

References

1. [1] https://www.samhsa.gov/about-us/who-we-are/laws-regulations/confidentiality-regulations-faqs
2. [2] https://www.samhsa.gov/sites/default/files/samhsapart2-hipaacomparison2004.pdf
3. [3] https://www.hca.wa.gov/assets/billers-and-providers/60-0015-sharing-substance-use-disorder-information-guide.pdf
4. [4] https://www.ncqa.org/hedis/measures/follow-up-after-high-intensity-care-for-substance-use-disorder/
5. [5] https://www.ncbi.nlm.nih.gov/books/NBK64815/
6. [6] https://www.ncdhhs.gov/csatgpratoolenglish0-1/download