David Barmak, Esq.

Gerald V. Burke, M.D., Esq.

Jo Ann Halberstadter, Esq.

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By: Jo Ann Halberstadter, Esq. 

A local county Sheriff appears at your facility and serves you with a subpoena similar to the one below only filled out and signed by the court clerk.  The subpoena orders you to appear in court the following week and produce medical records for a current or former patient/resident.  What do you do? 

The first thing you should do is contact your attorney so that you can identify the specific type and nature of the subpoena and how you will need to respond so as not to violate HIPAA by releasing protected health information (PHI) without patient authorization.

The basic rule is that HIPAA permits disclosure of PHI without authorization in response to a court order and then only the PHI "expressly authorized by such order".  See 45 C.F.R. 164.512 (e)(1) (i). Although a subpoena appears to be an official court document, especially when it is signed by a court clerk, a subpoena is NOT a court order. 

A subpoena is a legal order requiring the person/entity named in the subpoena to appear and/or supply documents (subpoena duces tecum) to a specified court of law at a specified date and time in conjunction with a legal proceeding.  A deposition subpoena is a legal order requiring you to appear, most often at the offices of an attorney, at a certain date and time for a pre-trial deposition.  Subpoenas are usually initiated by a lawyer representing a party in the legal proceeding and in New Jersey may be signed by the attorney, the clerk of the court, or a party in the name of the clerk. See N.J. Ct. R. 1:9-1. 

A court order typically has "ORDER" typed on it and is signed by a judge.  It usually contains some language indicating that a motion was brought by one party to compel production of documents or testimony and after consideration of such motion, the court now orders the production of such information.  A court order can also be a verbal order by the judge during a court hearing.

It is important to note that some attorneys purposely draft subpoenas to look like court orders.  Thus, it is best to contact your attorney or call the clerk of the court that issued the subpoena to definitively establish whether it is a subpoena or court order.

Once it is established that you have indeed received a subpoena and not a court order, it is still very important to respond to the subpoena.  If possible, you should obtain a written, HIPAA-compliant authorization from the patient/resident to release the request PHI.  If that is not possible, you will need to file a "Motion to Quash" the subpoena requesting the court to terminate the subpoena because production of the requested PHI would consititute a violation of HIPAA.  Generally, the court will review the facts and legal memorandum submitted, together with any response submitted by the attorney who issued the subpoena.  In most situations, the court will then issue a court order either terminating the subpoena or expressly defining the PHI that is to be submitted.  At that point, you will have your court order and may release the specified information without fear of violating HIPAA.

Look for next month's follow up article addressing the protocol for dealing with administrative subpoenas issued by an Inspector General of the Department of Health and Human Services or another federal administrative agency. 

If you have any questions regarding the proper protocol for responding to subpoenas  under HIPAA regulations, please contact Jo Ann Halberstadter, Esq., at jhalberstadter@barmak.com or call (609) 454-5351.