Handling Subpoenas

The great majority of requests for medical records that are received by healthcare providers are requests which included a properly executed HIPAA compliant release. However, on occasion a record request may be received through a subpoena duces tecum, a subpoena requesting only the production of documents, not testimony.

In Nevada the issuance of subpoenas is governed by the Nevada Rules of Civil Procedure. Non-compliance with a properly issued and served subpoena could potentially result in the party issuing the subpoena seeking a court order for compliance with the subpoena and/or to find the non-responding party in contempt of court. While there are some legal challenges that may be raised to a subpoena, in general, compliance with the subpoena, to the extent legally allowed, is required. However, the disclosure of any records constituting Protected Health Information (“PHI”) must be done in compliance with HIPAA.
45 C.F.R. § 164.512(e) governs the disclosure of healthcare records pursuant to a subpoena. While the full contents of this section is too extensive to discuss here fully, two of the main points are summarized below.

• “Covered entities” (which includes various healthcare provides) may disclose healthcare records pursuant to a subpoena if it receives satisfactory assurance (defined by 45 C.F.R. § 164.512(e)) that the party seeking the information has made reasonable efforts to notify the individual of the request or that the party has made reasonable efforts to request a qualified protective order.
• If the covered entity does not receive satisfactory assurance from the party seeking the information, it may still disclose the records if the covered entity makes reasonable efforts to notify the individual whose records are being sought of the request or to seek a qualified protective order.

Finally, if a covered entity is able to disclose protected healthcare records pursuant to 45 C.F.R. § 164.512(e), it should ensure that the only information disclosed is that specifically requested in the subpoena.

It is highly recommended that a healthcare provider contact their attorney upon receipt of a subpoena requesting medical records before responding in any way. Also, subpoenas do provide a date by which records are expected to be received so time is of the essence in seeking guidance as to how to respond to the subpoena.

Ms. Beggs, owner of the Law Offices of Lyn E. Beggs, PLLC, focuses her practice primarily on administrative and professional licensing board issues in addition to representing healthcare providers on a variety of issues. Ms. Beggs may be reached at 775-432-1918 or at [email protected].