Arizona Medical Records Subpoena
At some point in your career as a medical practitioner, you will be subpoenaed to either testify or give medical records that will be used to determine cases. The cases may be before a court, a tribunal, or other medical boards. A subpoena is a legal summon that lawyers, court staff, and other legal experts use to demand the production of important records or demand witness attendance at a hearing
Subpoenas differ from court orders in that a subpoena is a lawyer’s declaration that they are entitled to some information, while a court order determines that the lawyer is entitled to it. Court orders are signed by a judge or magistrate, while subpoenas are signed by an attorney. A court order has the word “order” typed on it, and a subpoena has “subpoena” typed on it. The basic rule is that while responding to a subpoena in a certain order, you must do so with the patient’s consent or court order. A subpoena can be contested, while a court order cannot be contested. It is to be complied with to the letter.
Consent means a HIPAA-compliant authorization form if you are a medical practitioner covered by the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule. Without a court order or consent, your objection must explain why you cannot produce the protected information. Responding to a subpoena generally depends on the authority, scope of request, and time limits given. Failure to follow this may result in serious HIPAA sanctions.
Arizona Statute Law for Medical Records
Arizona’s medical records hold all patient records that are available to medical practitioners when necessary. Arizona state law insists on the confidentiality of medical records and payment records. Specifically, Section 12-2294.01 is the law concerned with releasing medical or payment records to third parties under a subpoena. It outlines a subpoena’s requirements to grant access to medical records. It also lists what is required of the medical practitioner before they can release and after they release the medical records according to a subpoena.
How does one respond to a medical records subpoena in Arizona?
First and foremost, medical practitioners must ensure they have the written authorization of a patient or the patient’s healthcare decision-maker before releasing the records. The release of records without the patient’s consent can only be done when it is ordered by a court or a law requirement (such as the HIPAA Privacy Rule). Persons that receive the records cannot disclose them to other third parties unless the patient consents in writing or re-disclosure are granted by law.
General HIPAA requirements for subpoenas
- Signature verification. A subpoena will only have a force of law if it is signed by a registered legal practitioner; Court subpoenas have to be signed by judges. Court-order subpoenas have a higher jaw force, and they cannot be objected to.
- Subpoenas have to be specific. While seeking medical record information, the subpoena has to request specific information. The requirement is so that there is a minimal release of records to fulfill a subpoena.
- HIPAA requires that the patient is given sufficient notice. There is a minimum Necessary Standard outlined in the privacy rule. The patient can therefore decline a subpoena but not a court order.
HIPAA Privacy Rule
It is a national rule that protects individual medical information and records that sets limits on the uses that may be made of such disclosure without a patient’s clearance. It gives individuals a right to obtain their health records, direct an entity to disclose them to third parties, and request any corrections. In Arizona, HIPAA guards against subpoenas by presenting conditions that must be met before medical records are released.
- For subpoenas issued by a judge or magistrate, the medical practitioners must comply with the information demanded, or attract fines.
- For subpoenas issued by grand juries, the practitioner must strictly comply with its terms. Since grand jury proceedings are confidential, HIPAA does not require additional protections.
For subpoenas issued by an attorney, the practitioner has to meet the following conditions:
- The practitioner should contact the patient orally or by letter, explain that they have received a subpoena requiring disclosure of the patient’s information, and notify the patient that they are required to respond unless the patient quashes the subpoena and notifies the practitioner before the deadline for responding to the subpoena. Once the practitioner sends such notice, the burden is on the patient to reject the subpoena if they want to protect their personal information
- The practitioner may obtain written assurances from the entity issuing the subpoena that either:
(a) the entity made a good faith attempt to give the patient written notice of the subpoena, the notice included sufficient information to permit the patient to object to the subpoena, and the time for raising objections has passed, or the court ruled against the patient’s objections, or
(b) the parties have agreed on a protective order, or the entity seeking the information has filed for a protective order. (45 C.F.R. § 164.512(e)(1)(iii)-(iv)).
- Or the practitioner may obtain a valid HIPAA authorization executed by the patient. To be valid, the authorization must contain the elements and statements required by 45 CFR § 164.508.
If the practitioner cannot satisfy one of the above, they may not disclose protected health information, nor may they ignore the subpoena without subjecting themselves to possible contempt sanctions. The practitioner may need to appear in response to the subpoena, assert an objection based on HIPAA, and wait for the court to order disclosure.
Subpoenas are issued by attorneys in Arizona to obtain patients’ records for use in personal injury claims, medical malpractice claims, or any other kind of civil lawsuit or even a criminal suit.
Charging for the production of medical records
Under Section 12-2295 A, reproduction fees must be reasonable, and the practitioner may require the payment of any fees in advance. Part B relates to instances where a practitioner shall not charge fees for medical records provided to:
- Another health care practitioner for the continued care of the patient;
- The patient for the purpose of obtaining health care;
- The health care decision maker of a patient for purposes of obtaining health care for the patient;
- The Arizona Medical Board, the Arizona Board of Osteopathic Examiners in medicine or surgery or an officer at the department of health services
- The patient or patient’s legal representative for appeals under the social security act.
In Rule 45(e)(1)(B) of the Rules of Procedure for the Superior Courts of Arizona, the party seeking discovery must pay reasonable expenses incurred by the person subpoenaed in the production of documents requested by the subpoena.
Some statutes relate to workers’ compensation schemes and social security disability matters. For example, in Arizona Administrative Code sectionR20-5-128, a health care practitioner shall not charge more than $.25 per page plus$10 per hour in clerical costs associated with the reproduction of medical information concerning a worker’s compensation matter.
At Chelle Law, we aim to provide legal assistance to all medical professionals regarding attorney subpoenas. We offer representation with professional and board hearings and appeals and coverage of the HIPAA regulations. Contact us today and have your issue sorted with our experienced subpoena attorneys.