How to Respond to an Arizona Medical Records Subpoena

What is the proper way to respond to a medical record subpoena in Arizona? So, if you have received a medical record subpoena, there are four avenues that would be considered valid in issuing medical records subpoenas in Arizona.

Four Avenues to be Considered in Issuing a Medical Record Subpoena

• If it’s from or includes patient authorization, like a plaintiff’s attorney sends a healthcare provider a subpoena for the medical records, it must be accompanied by the patient’s authorization. So, that’s one.
• Two, any court has the subpoena power, obviously.
• Three would be a grand jury if there’s some criminal proceeding that needs the records.
• And then lastly, any healthcare regulatory board. Medical board, nursing board, and psychology board, for instance.

If you’ve received the subpoena, and it’s from one of those four places, the way to respond is, one, determine if you’re the custodian of the records. Meaning if you’re a healthcare provider and you are employed by an organization, and you personally get the subpoena for the records, you are not always the custodian of those records. It is usually the employer that is the custodian, and then they would be the ones that would be responsible for responding to the subpoena. If you’re in private practice, a nurse practitioner or a physician, a psychologist, or a chiropractor, and you own your own business, then you are the proper custodian of the record. And so, if you are the proper custodian of the record and it’s been sent by one of those four sources, then you must submit the entire medical record back.

And how you would do that is you would copy the complete record, and then you must attach an affidavit. And the affidavit must include these three things. One, it has to state that you are the authorized custodian of the record. Two, it must state that it is the complete file, so it has all the documents attached to whatever the treatment was. And then three, if you don’t have the records or have a partial set of the records, you have to state that as well. So, you are the proper custodian, and you’re providing the complete set of the records, none of the records, or a partial amount. And then, I would list which parts you’re missing. If you provide that to whoever was requesting it, then you validly responded and complied with the subpoena. I find most people don’t put the affidavit with the records. They only send the records.

And for the most part, whoever is requesting the records is okay, they just want to see the records, and they’re not going to go back to the healthcare provider asking for the affidavit. But if they do, then obviously, they can and have the authority to request that. And you would have to send that as well. That’s it. Pretty simple.

Responding 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.

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.

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.

1. For subpoenas issued by a judge or magistrate, the medical practitioners must comply with the information demanded, or attract fines.
2. 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:

1. 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
2. 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)).

1. 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.

Consultation with Chelle Law

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.