Responding to an Arizona Behavioral Health Board Subpoena | Health Provider

Should you respond to a medical records subpoena from the Arizona Board of Behavioral Health Examiners? So, if you’ve received a subpoena from the Board of Behavioral Health, it’s very likely you are either a licensee of that board or a facility that employs licensees of that board. Let’s just say it’s a patient complaint. Someone files a complaint against an LPC with the board. Well, the board will then look at the complaint, determine who the licensee is that they’re complaining about, figure out where they work, and then they’re going to send a subpoena for the medical records for that patient, along with likely a request for the employment file of the LPC as well.

Responding as a Licensed Health Care Provider

And so, depending upon whether the LPC is self-employed or perhaps works for another company, that’s going to depend on who needs to respond. If an LPC has its own practice, they get a request for a medical record via subpoena from the board, then they must respond. There’s just no way around it. The boards do have subpoena power through the Arizona Revised Statutes. And it states that any healthcare regulatory board does have the subpoena power to ask for medical records. So, if it was sent to an LPC, substance abuse counselor, marriage and family therapist, or social worker, they’re going to need to respond and send the medical records back to the board for review. If they refuse to or ignore the subpoena in some way, that could potentially be grounds for disciplinary action for failing to comply with an investigation.

Responding as a Health Care Facility

And since you are licensed by the board that’s asking for those documents, it doesn’t make a lot of sense to antagonize them. So, that’s the first thing. Now, if you’re a facility, that’s a little different. As I said before, the board does have subpoena power, so if they ask for the record, they should get it. But there are plenty of facilities that simply ignore these types of subpoenas. What will happen to a facility if they do ignore the subpoena? Well, most of the boards, at least in my experience, and we’ve represented well over a thousand professionals before all the boards here in Arizona, will send out an initial request. If it’s not responded to within a certain time, they’ll send a second request. If it’s not responded to within a certain period, they’ll send out a third request, and then usually, after that third request, if they’ve been unable to get the records, they’ll just move on with the investigation without the records.

Theoretically, a board could potentially go to a court and try to get order to compel the production of those documents from a facility. But I’ve never seen a board do that. I would think it would probably take an extraordinary set of circumstances. Whereas if it was probably a high-profile case, the medical records were necessary, and the facility involved was just completely ignoring the subpoena request, that probably would be the only scenario where a board would take it further than just setting out subpoenas and moving on if they don’t get them. But it’s very unlikely there’s going to be any monetary penalty or anything like that or contempt issue.

Response Ethics to a Board of Behavioral Health Subpoena

Now, why would a facility not submit the records to the board? Well, obviously, if one of their employees screwed up in some way and it would make the facility look bad, that is a normal reason why a facility would not want to submit the records for review to a board. Maybe if the board is requesting more than the medical records, so as I said before, an employment file, that’s a gray area of whether a board can compel the production of that or not. An employment file would be the applications, certifications, any disciplinary action against the licensed professional, and that type of thing. The medical records statute obviously just pertains to medical records, which is what I’m talking about today. But they don’t normally just request medical records. They want any documents associated with a complaint, and sometimes facilities are weary of setting those as well. So, in summary, yes, the Board of Behavioral Health absolutely has subpoena power for medical records. Whether you need to respond or not, depends upon your situation. If you’re licensed by that board, you absolutely need to respond. If you’re a facility, probably a little bit of a gray area.

Who Can be Served a Subpoena by an Arizona Licensing Board?

In Arizona, the Arizona Licensing Board has the absolute authority to analyze and investigate various medical claims reported by patients consistently. The Arizona Licensing Board aims to ensure that all the medical professionals operating in the state pay attention to the codes of ethics governing how the industry works.

Usually, a complaint has to be served to the board before it can commence investigations. Also, the board must determine whether it has the necessary jurisdiction to investigate a claim before it can request the required medical records. Suppose the Arizona Licensing Board determines it has the necessary jurisdiction. In that case, it will subpoena all the medical records needed for investigations. Some of the areas where the Arizona Licensing Board has jurisdiction include:

• Pharmacists
• Nurses
• Physicians
• Psychiatrists
• Psychologists
• Behavioral experts

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.

Contact Arizona Defense Attorney Chelle Law

Over the years, medical practitioners have been subjected to extreme scrutiny by the Health Professional Regulatory Board (32-3201). Most of them don’t know how they can respond, especially when subjected to medical records requests through subpoenas.

As a physician working in Arizona, you must work with an experienced Arizona defense attorney. It’s the only way you’ll be able to protect your rights and ensure that medical records are not used to subject you and your career to unfair treatment.

At Chelle Law, we have experienced defense attorneys ready to listen to your concerns.