Behavioral Health Professional Response to an Arizona Medical Records Subpoena

How should a behavioral health professional in Arizona respond to a subpoena for medical records? Behavioral health professionals in Arizona are overseen by the Arizona Board of Behavioral Health Examiners. And these include marriage and family therapists, licensed professional counselors, social workers, and then licensed substance abuse counselors. And then the assistant version of those as well.

Ways that a Healthcare Provider in Arizona Can Receive a Subpoena for Medical Records

There are five ways that a healthcare provider in Arizona can receive a subpoena for medical records that you must respond to. And I’m going to go over those briefly.

• First, if you get a subpoena that is accompanied by the authorization or release of the patient, then you must send the records.
• Second, if you’re issued a subpoena through a court or a tribunal of some standing, then obviously you must respond to that as well.
• Any kind of healthcare licensing board, so the board of behavioral health, med board, nursing board, psych board, if any of those request the records for patients, you have to give them up.
• If you’re issued a subpoena through a grand jury due to a criminal investigation, you must send the medical records for that as well.
• And then last, there’s like a catchall that just says any other law that requires the healthcare professional to release the records.

So, in any of those five categories, if you receive a subpoena asking for the medical records, you have to send it. Now, there are rules that must be followed, meaning there’s a certain format that the subpoena must comply with.

Responses to a Subpoena

And there are some potential objections that a behavioral health professional could make to having the subpoena issued to them. But really, the only time where this happens frequently is if a behavioral health professional gets a subpoena from a plaintiff’s attorney, who’s representing a patient for whatever reason, malpractice, personal injury, something like that. I find most of those attorneys don’t always understand the rules that have to be followed to issue a valid subpoena for medical records. And there are certain scenarios where you can just either object or just not respond at all to the subpoena. But any of the other grand jury, court, licensing board, there’s really no objections that you can throw up.

There are some objections if people request medical records not through a subpoena due to the health and safety of the patient that you could object to. But if it’s through a subpoena, you’re going to have to respond and provide the entire record. A couple of things to think about. One, if the Board of Behavioral Health is involved in any way. For instance, say you’re just a LISAC. Let’s say a complaint has been filed against the LISAC and the board is going to want all the patient records associated with it. They’ll most likely do that through a subpoena, and you obviously have to comply with it. If you refuse to comply with the subpoena, that would likely be a violation of the Board of Behavioral Health Rules.

Repercussions of Ignoring a Subpoena

So, they could discipline you for just not even responding to the subpoena, but then also, failing to kind of comply with the requirements of an investigation with that board. Now, if it’s a different board, let’s kind of talk that through briefly. I find in my experience in my firm, we’ve represented well over a thousand healthcare professionals throughout the state with almost every board, if it’s like a cross-board subpoena, so let’s say for whatever reason, the psych board sends a subpoena to a behavioral health professional, and that person just doesn’t respond to the subpoena, what they’ll do is probably follow up one or two additional times, and then, for the most part, they’ll drop it and they won’t do anything to try to enforce it. It’s possible they could then go to your board and say, this person is not complying with the subpoena, and then that could cause problems for you. But it’s very unlikely that a board is going to go to that kind of extraordinary measures to get medical records. But for the most part, you absolutely should comply with it.

Arizona Medical Records Subpoena from a Board

As a healthcare provider in Arizona, you’re probably already aware of the HIPAA and the strict state privacy and confidentiality laws that require you to protect personal health records from third parties. There have always been significant challenges facing most medical professionals who have not paid attention to the privacy rules observed in this state. That’s why you must be careful about the approaches you should undertake when faced with such a request.

Generally, you’ll be constantly faced with multiple requests for medical records, which will come through subpoenas. You cannot ignore such demands because they come from courts or an authorized attorney. However, you must be careful about the approach to consider to avoid a situation where your response might be incorrect. When responding, the ultimate goal is to avoid violating HIPAA or state privacy laws.

You must analyze some aspects before responding to medical records requests through a subpoena.

• Check whether a judge signs the request.
• Check whether other parties sign the request for additional certification.
• Check out for dairy and timelines.
• Analyze the medical records and information requested
• Submit medical records to the court within the stipulated time

As you can see, there are some fundamental approaches you ought to follow to make the right decision. By analyzing the factors discussed above, you’ll ensure that you pay attention to the subpoena before responding. This will prevent possible mistakes that are likely to occur as you respond, which is a dangerous aspect that can lead to future legal challenges.

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.

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.

How Can Chelle Law Help?

At Chelle Law, we help medical professionals who have struggled to respond to medical records subpoenas. Usually, such records can only be provided through the authorization of a judge, a licensed attorney, and the express authority of the patient.

We help medical professionals respond to various medical record requests by third parties. Contact Chelle Law for assistance if you struggle to respond to medical records.