Responding to an Arizona Licensing Board Subpoena
Arizona Healthcare Board Subpoena
How should either a healthcare professional or a healthcare entity respond when they receive a subpoena from an Arizona Healthcare Licensing Board? Arizona Healthcare Boards, such as Medical Board, Nursing Board, and Psychology Board, and there are a bunch of them, over 20, have broad authority to subpoena and compel the production of medical records and additional records as well, which I’ll get into in a second. And I’m going to use an example. I think that will help illustrate what I’m talking about. So, let’s say the Arizona Board of Nursing has received a complaint and it involves maybe some substandard care from a nurse. Well, the board is going to send a subpoena, not only for the medical records of the patient involved in the complaint but the employment file for that nurse as well, because they want to see if there is any past disciplinary history involving the allegations contained in the complaint.
And then certainly, if there’s deviation from the standard of care or something like that, they’re going to want to review the medical record as well. Now, there are two different scenarios here. One, in the Nursing Board context, they would only send a subpoena if there was an advanced practice nurse, so an NP or CRNA. And if that person would receive the medical record subpoena, then obviously they must comply with it and send the records back to the board. If it’s a larger healthcare network, say it’s Banner, the board will then send the subpoena request to the HR department, and then it would be up to the HR department to one, get the employment file of the nurse involved, and then two, assist in getting the medical records.
Can the Arizona Board Enforce a Subpoena?
How much authority does the board have to enforce this if someone doesn’t respond? Well, in my experience as someone who’s represented, my firm has probably represented almost a thousand nurses at this point. What will normally happen is if the Board of Nursing sends out a subpoena and then it’s not responded to or ignored, they’ll just send out additional subpoenas, usually two or three. And then at some point, they’ll just move forward with the investigation without having the records. At least I don’t recall a scenario where they took steps to enforce the subpoena.
Now, if they’re sending a subpoena to someone they regulate, so like the advanced practice provider, the nurse or CRNA, and that person is the custodian of the records and they just refuse to send the records, that can be a violation and can be considered unprofessional conduct which could lead to discipline. So, if you are regulated by the board that’s sending you the subpoena, it would be a bad idea to just completely ignore it. That wouldn’t make a lot of sense at all. Now, if you’re an entity, it’s very unlikely the board is going to take any steps to compel the production of the documents. I find many times in jails, if there’s incident out of jail, jails just don’t respond at all unless they were the ones to file the complaint. Most of the time they’re just going to ignore it. Or, if you’re like a small healthcare facility or something like that, once again, if you don’t respond to the subpoena, very little is going to happen.
Entities who can issue subpoenas for medical records
No, that doesn’t mean it can’t happen. That doesn’t mean they can’t attempt to compel production of the documents, but in my experience doing this for over a decade in Arizona, it’s very unlikely that they’re going to attempt to do that. You also need to know who can compel the production of medical records through a subpoena in Arizona. Briefly, the patient, a court, a grand jury, and a healthcare board. Those are the four main areas of people who can issue subpoenas for medical records. Now, as I said before, whether an employment file is considered a medical record, it’s not. And so, it’s going to be up to the organization if they receive a subpoena for the employment file for a provider, whether they want to respond to that or not.
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 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.
