Nurse Practitioner Response to an Arizona Medical Records Subpoena
Different Types of Subpoena Individuals (NP) Must Comply
How should a nurse practitioner respond to a medical records request through a subpoena in Arizona? There are five different types of avenues for someone to send a subpoena for medical records that a nurse practitioner must comply with. And I’m just going to read what those are. The first one is obviously a subpoena with written authorization from the patient. Now, anytime a patient requests a medical record, the nurse practitioner must respond and provide that person with the record. But via a subpoena, if the subpoena requests the record and it’s accompanied by written authorization from the patient, then you must send it back. Next, if the subpoena is accompanied by a court order. If a court has ordered you to provide the documents, then you have to do it.
Next, a grand jury subpoena for a criminal investigation. If they request the medical records, then the NP must respond to that as well. The fourth is from a healthcare board in Arizona. If you’re an NP, maybe a complaint has been filed against you, and the nursing board sends you a subpoena for the medical records, you obviously must provide those records. Other boards as well. Psych board, med board, maybe it’s in relation to a complaint against a physician, and you’re in the chart. Once again, the healthcare regulatory boards in Arizona do have the authority to subpoena records. And so, you’d have to provide those as well. And then there’s a catchall that just says you’re required by another state law to release the records to the seeking party.
Rules of Issuing a Medical Records Subpoena
Those are the five types, at least via subpoena that you have to respond to. Now, there are certain rules that anyone who’s issuing a subpoena must follow, and there are potential objections if it is not followed correctly. Now, in the case of a board, there’s almost no chance that they’re not going to send the proper subpoena, meaning it contains all the things that need to be contained. It’s served properly. Most of the time where you’ll see issues is if it’s through an attorney. If maybe there’s malpractice claim against another provider in the NPS on the chart or who knows, personal injury, or whatever, I find many of the personal injury attorneys or plaintiff’s attorneys for med mal or whatever else, don’t necessarily understand the rules associated with subpoenaing medical records.
How Individuals respond to a Served Subpoena
So, if you do have a question about whether you’ve been served a proper subpoena or how you can respond to it, object to it, or whatever, feel free to give us a call. There are also a few caveats if the provider is concerned that providing the records will be potential hardship or can cause some serious mental health or medical problems for the patient. However, those are infrequent, and you are not going to be able to use those objections as far as a board’s concerned or a court’s concerned. And even if you did, then you’d file an under seal with the court, and then the court would determine whether they are going to agree with your position or not.
Most of those five that I listed have brought authority to issue subpoenas, and they certainly are entitled to receive medical records from the nurse practitioner. I find most NPs, or I guess probably most healthcare providers for that matter, don’t understand that almost all the records can be obtained. That’s why the necessary record keeping is important. As you know, my firm has represented probably over a thousand nurses before the Arizona Board of Nursing by now. Documentation issues can always pop up during an investigation, and so it can maybe start in one place, and then once the board receives the documentation and they review it, if the NP isn’t following the rules or their documentation isn’t complete, that can be a violation and can end up in potential discipline.
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.
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.