Psychologist Response to an Arizona Medical Records Subpoena | Subpoenas Responding
Five Individuals who can Request Medical Records through Subpoena
How should a psychologist licensed in Arizona respond to a medical records subpoena? First, it’s good to go through who can issue subpoenas legally in Arizona, and then you’ll understand in what scenario you would need to respond to the subpoena. I’m just going to read it from the statue. So, there are five different people/entities that can compel the production of a medical record. And those would be, one, obviously if you receive an authorization from the patient, so there would be a subpoena, and then whoever the patient was would have release or authorization with it, then you obviously have to give that up. I mean, on a side note, if a patient asks for their complete medical record, you must comply with that anyway if it’s sent in writing.
Court Order Subpoena
Next would be a court order. If an Arizona court sends a subpoena to a provider, then obviously you have to comply with that order. Next would be a grand jury subpoena. If there’s criminal investigation and they’re requesting medical records, you need to comply with that. Next would be a board, so a healthcare regulatory board in Arizona. Let’s dive into this one a little bit. If you’re a psychologist and let’s just say the Board of Psychology has received a complaint about care you provided to a patient, the board will send you a subpoena, likely asking for the medical record. They have the authority to do that, and since you are licensed by that board, it would not be a good idea to refuse to comply with the subpoena.
You would have to provide the medical record to the board, and you do not need the patient’s authorization to do that. And there is no hiding behind HIPAA. I mean, that’s used very broadly and usually incorrectly. But that is not a reason to not provide the record to the board. If you receive a subpoena from a board, you’re going to have to comply with it. And then last, it’s a catchall. It just says any other law that compels the healthcare professional to provide the record. So, let’s talk about what would happen if you receive a subpoena from a different board. In that scenario, let’s just say the Medical Board has issue. They’ve asked the psychologist to provide them with the medical record. Can they compel the psychologist? Yes, they can.
Subpoena from Healthcare Regulatory Board
This goes for any board. Any healthcare regulatory board in Arizona does have subpoena power. Now, what will happen if you don’t provide the record? Well, they’ll likely send a second and third request for the records, and then most boards at that point will not take any action to compel production of the documents. They’ll just move forward in the investigation without it. Now, it’s possible that another board could refer to your board and say, look, we sent a subpoena to someone that you licensed. They refused our requests; can you assist us in this situation? And then in that scenario, it’s possible that your board will then attempt to compel the production of documents to the other board. There are some specific rules that have to be followed in order to make a subpoena, I guess, enforceable. I’m not going to go through what those are right now.
How Individuals respond to a Served Subpoena
But if you do have questions and you have received a subpoena from one of those entities and you’re not sure whether you need to or should comply, feel free to contact my firm. I’d say the biggest area where there are issues with the subpoena are when they are issued by an attorney in plaintiff-side action, some personal injury, medical malpractice, something like that. Some of those attorneys don’t understand the rules and they will send a subpoena that doesn’t comply with the rules. And in that scenario, you can either object or sometimes not even have to respond at all. But like I said before, I can get into those details in the following blog. So, just to summarize, if you are a licensed psychologist in Arizona and you receive a medical record subpoena from one of those, I guess, four organizations or individuals, the law states you must comply with it and produce the documents.
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.
Information on 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 to Respond to Medical Records Request Via Subpoena
Generally, there are different specializations in the medical industry. Various players in this sector are behavioral therapists, nurses, physicians, and psychologists. Different healthcare professionals are supposed to respond to other approaches, some of which have been discussed below.
How to Respond to an Arizona Licensing Board Subpoena
Over the years, an Arizona Licensing Board has been very proactive in requesting medical records. Usually, this organization can request specific healthcare records concerning a particular patient. In such a case, the patient might have supplied the board with a complaint regarding the treatment they received from the facility. Also, there’s a higher chance that the board may request specific records regarding the qualification of the nurse in charge.
Generally, most people ignore the information they receive from the Licensing Board. This means that they don’t respond to such requests. This is a dangerous approach, primarily if the Arizona Licensing Board regulates you. You’re supposed to adhere to such requests. However, if the board does not restrict you, you can choose whether to respond or not. It is considered professional to respond to such requests because it helps the board to continue with its investigations.
How Should an Arizona Psychiatrist Respond to a Medical Records Subpoena?
As a psychiatrist, there’s no doubt that you will constantly have to deal with the request for medical records through a subpoena. It’s a challenge that has been available for several years and that most psychiatrists have been unable to address. In most cases, you’ll face medical records requests from patients and the Arizona Psychiatrist Board.
Essentially, you cannot deny the patients their medical records. They have the full authority to request their medical records at any time. In other instances, an attorney may request medical records on behalf of the patient. You have no option but to grant this request after ascertaining authority from the patient. In addition, you must also adhere to the medical records request from the Arizona Psychiatrist Board.
How Should an Arizona Behavioral Health Professional Respond to a Medical Records Subpoena?
The Arizona Board of Behavioral Health Examiners is the sole body that oversees the practices and operations of behavioral health professionals in the state. Specifically, this crucial body in the state is responsible for supervising the roles and procedures of licensed substance abuse counselors, social workers, licensed professional counselors, and family and marriage therapists, among others.
Usually, as a behavioral health professional, your role is under the microscope of multiple organizations. This means that you must listen to the requests and demands of the various organizations that will be demanding such behavioral and medical details. Generally, you must respond when requested to submit medical records by organizations such as the medical board, nursing board, board of behavioral health, and psychology board.
How Should an Arizona Nurse Practitioner Respond to a Medical Records Subpoena?
As a nursing practitioner, you are responsible for caring for the patients. Therefore, you’ll have access to considerable details about patients. Usually, you’re supposed to protect such information’s privacy and only ensure it is presented to the right people.
However, this doesn’t mean you should not deliver such details and records to other third parties. Generally, you’ve to listen to the patient as a priority. They have the absolute right to access their healthcare records. However, it’s also essential to indicate that healthcare boards, an authorized attorney, and a subpoena signed by a judge are enough to compel you to submit such medical records.
Purpose of Issuing a Subpoena for Medical Records in Arizona?
What is the purpose of issuing a subpoena for medical records in Arizona? In short, a subpoena is a way to enforce or compel the production of a document that someone may not want to give up.
Four Primary Sources that Can Issue Subpoenas for Medical Records
And as I’ve said in previous blogs, in Arizona, there are a few valid ways that someone can issue a subpoena for medical records. And obviously, if the patient consents to give up the medical record by the provider, if it’s issued from a grand jury in a criminal proceeding, or if it’s issued from a court or from a healthcare regulatory board.
Those are the four primary sources that can issue subpoenas for medical records. Now, let’s say you’re a healthcare provider, and you get a request for medical records for a patient from an attorney that doesn’t have the patient’s authorization.
A Subpoena Cannot be Contested
You don’t know this attorney, they’re not stating what the record is for, and there’s no subpoena. You don’t have to give them the record. If it’s accompanied by court order, by patient consent, by a board, or by a grand jury, then obviously, you have to provide the document no matter what your objection is. Now, there are some objections to requests for medical records from providers if they feel like there is danger, but you cannot give those objections if it’s through a subpoena. So, just to clarify if you get a request to produce a medical record.
Even if the subpoena is accompanied by a patient’s consent or authorization, there are some caveats that can be made by the healthcare provider if they believe giving up the record could put someone’s life in danger or safety issue with the patient involved in the record. However, none of those objections can be used if you’re given a subpoena. The point of the subpoena is to compel the production of a document that may not necessarily be given up freely if it didn’t have the subpoena attached to it. Pretty simple.
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.
