Psychiatrist Response to an Arizona Medical Records Subpoena | Subpoenas Responding

How should a psychiatrist respond to a medical record subpoena in Arizona? There are five entities/individuals that can compel the production of medical records through a subpoena. And let’s just go through those briefly. First, obviously the patient. Now, a patient can request medical records, not through a subpoena, and the provider would obviously have to provide the records to the patient. But it also can be through a subpoena and most of the time, this is in the scenario of a plaintiff’s attorney. If there’s medical malpractice issue, some personal injury issue, or something like that, the attorney will then usually issue a subpoena for the medical records, but there has to be an authorization from the patient for that to be enforceable.

Five Individuals who can Request Medical Records through Subpoena

So, the first one is either the patient or the agent of the patient, which would usually be an attorney. Second, a court. If a court tribunal of some kind sends a subpoena to a psychiatrist, obviously you need to comply with the subpoena request and provide the records. If there is objection, there are some rules about how to submit objections to the subpoena and then how to submit the documents under seal. I’m not going to get into that today. This is more just a broad blog. Next would be a grand jury proceeding. If there’s criminal investigation that involves the medical records, they can issue a subpoena to a psychiatrist, and they would have to provide the records.

Responding to Subpoena from other Health Care Boards

And then finally, an Arizona Healthcare Regulatory Board. So, if a board issues a subpoena to a psychiatrist, then the law gives them the authority to do that. Now, whether they must comply or not, let’s go through that. If you’re an MD psychiatrist and you receive a subpoena from the Medical Board asking for a patient file, you’re going to have to provide it. Not participating in an investigation with your own licensing board is considered active unprofessional conduct, which could lead to discipline. So, if you do receive a subpoena from your own board, then obviously you must submit the documents to them. Now, what if you’re a psychiatrist and you receive a subpoena from a separate board? Maybe the Board of Psychology, maybe the Nursing Board, something like that, or the Osteopathic Board. If there’s dual care from an MD and a DO, they do have the authority to request those records.

Consequences of Ignoring a Subpoena

But what happens if you just decide not to provide them? Well, what most boards do is they’ll send one request to produce the record, and if it’s not responded to, they’ll send another and another. At some point, they’ll usually just decide to move on in the investigation without getting the records. However, if there is some reason that they absolutely need the records and the providers are not responding at all, there are times when one board will then go to the other board. Like if the osteopath board is sending a subpoena to an MD, they may go to the medical board and say, this doctor is not compliant with our subpoena. Can you help us out here? And then your own board may take steps to compel the production of those documents.

It’s extraordinarily rare, and I can’t even remember a time when a board would then go to a court to compel the production of a document, but it could happen. But generally, it doesn’t. So, to summarize, if you’re a psychiatrist and you do receive a subpoena from the patient, a grand jury, a court, or a healthcare regulatory board, you need to comply with it and send the records. There’s just really not a lot of upside, completely refusing to participate. And you could ultimately be held in contempt or some other actions involving the destruction or obstruction of not providing those documents.

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.