Responding to an Arizona Medical Board Subpoena
Complying with Arizona Medical Board Subpoena
If you have received a subpoena for medical records from the Arizona Medical Board, there are usually a few questions that come up that I get often. First, if you’re a physician licensed by the medical board, so you are an allopathic physician in Arizona, and you get a subpoena for medical records from the board, you need to respond to that with the medical records. The Arizona Revised Statute, so basically the law in Arizona, states clearly that any Arizona Healthcare Regulatory Board does have subpoena power over medical records. And if you do get a subpoena from the board, you need to provide the records. Another consideration is if you are regulated by the board requesting the records, and you refuse to respond, you are opening yourself up to potential disciplinary action as well.
A Subpoena’s Repercussions
Not complying or cooperating with an investigation is an unprofessional act itself. And so, refusing to submit medical records when you are the custodian of those records could open you up to unprofessional conduct and disciplinary action. Now, if you’re a facility and have received a subpoena from the Arizona Medical Board for medical records, you need to respond as well. However, in my experience as someone who’s been representing healthcare professionals before boards for over a decade, it’s very unlikely the board will act against any facility that doesn’t respond. What normally will happen is the board will send out a subpoena request, wait a period, send out a second request, wait some more, send out a third request, and then after the third time, the board will usually just move on in the investigation without the medical records.
I’d say the Arizona Medical Board is probably a little more proactive and aggressive in getting records that if someone is ignoring them and not providing, theoretically, they could go to a court and get an order to compel the production of those documents. Then if that facility or person didn’t produce them, they could be held in contempt in some way. But that is very unlikely and does not usually happen. Most of the time, if a facility is the custodian of the records and they just don’t respond at all, at some point, the board will just move on without them, which could sometimes be good and sometimes bad for the physician who’s under investigation. Now, if the board sends out a request for an employment file, that is not a part of the medical record statute.
Subpoena for Employment File
So, why would the board want an employment file? Let’s say a complaint has been filed against a physician for inappropriate behavior. Well, the board is going to want to see if there’s any disciplinary action, corrective action, verbal coaching, counseling, or anything like that. That would suggest the physician had those types of predatory behaviors in the past. And so, they want the employment file, which contains all of that. They’ll have the application, any certifications, or licenses, any of the disciplinary action, emails between HR and the physician if they’ve been put on admin leave or suspended without pay, or anything like that. It’s going to be in the file, and the board is going to want access to that. This statute does not have anything about employment files. It’s just for medical records. So, they can’t compel the production of medical records under the statute that I’m talking about.
Whether they can compel the production of an employment file is a different matter. If you are licensed by this board, you strategically absolutely need to respond. If you’re a facility that has received a subpoena, legally, you should respond. However, if you don’t, it’s probably unlikely nothing that bad will happen, although it is a possibility.
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.
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.
