Confidentiality, Privacy and Security

Out of State Subpoena Duces Tecum Without Deposition

  • 1.  Out of State Subpoena Duces Tecum Without Deposition

    Posted 14 days ago
    Hello,

    We are in North Carolina and received an out of state Subpoena Duces Tecum Without Deposition, do we need to accept this and send records without patient consent?

    Any assistance is greatly appreciated.

    Thank you - Susan Rexhouse, RHIT

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    Susan Rexhouse
    Manager - Health Information Management
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  • 2.  RE: Out of State Subpoena Duces Tecum Without Deposition

    Posted 14 days ago
    Hi Susan,
    Typically, a subpoena from one state is not valid in another state.  However, you should never ignore a subpoena and by that I mean you should proactively reach out to the court that issued it or the attorney that had it sent.  But first, you should quickly find out what North Carolina's rules are for valid subpoenas and determine if this subpoena met the rules to be valid in NC.  For example, was it properly served?  NC may be very strict on that and other aspects.  In the past, I have required the requesting attorney to go through an attorney and court in my state to get the records they want and that always worked, but I'm not an attorney and this is NOT legal advice... just an example of an option to explore.  Attorneys can be expert at bluster and intimidation so you may want to have a local attorney review it with you first and discuss options.

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    Joe Gillespie, MHS, RHIA, CHPS
    Sr. Privacy / Security Consultant
    tw-Security, LLC
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  • 3.  RE: Out of State Subpoena Duces Tecum Without Deposition

    Posted 14 days ago
    I would agree with the above and less it is a federal-level subpoena.   We do not feel compelled to respond to a subpoena from another state and will provide them with a letter to support that decision.

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    Nancy Davis, MS, RHIA, CHPS
    Director of Compliance & Safety
    Door County Medical Center
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  • 4.  RE: Out of State Subpoena Duces Tecum Without Deposition

    Posted 13 days ago
    My comments were related to state-level courts, but as Nancy said, federal courts (U.S. District Courts) have different rules for valid subpoenas such as distance from the court.  Here is a good resource on reviewing federal-level subpoenas for validity. Hope this helps.
    Bottom line... do NOT ignore the subpoena if you find that it is not valid in your situation/location.  Always have a conversation with the court or the attorney who initiated the subpoena to let them know why it's not valid and be willing to explore valid options with them.  

    http://www.shpclaw.com/Schwartz-Resources/change-to-federal-rule-impacts-subpoenas-and-litigation-strategy-2?p=11399



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    Joe Gillespie, MHS, RHIA, CHPS
    Sr. Privacy / Security Consultant
    tw-Security, LLC
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  • 5.  RE: Out of State Subpoena Duces Tecum Without Deposition

    Posted 13 days ago
    Hello,

    I see your point Joe. I just assume HIM departments know to log such as document in their tracking measures.

    Here is another resource to add to your resource that has the Rule 45 and all of its amendments:
    https://www.law.cornell.edu/rules/frcp/rule_45

    I would like to add something that addresses HIPAA in all of this regardless of location:

    When a subpoena is presented to HIM professionals, the first thing that needs to be determined is if the subpoena is valid. The HIM professional doesn't need to do anything unless it is valid. Otherwise, HIPAA requires a prompt response when it is a valid subpoena. HIPAA requires a patient's written consent when disclosing to Covered Entity (CE) under HIPAA Privacy Rule that includes a patient's records for use other than treatment, healthcare, and payment. However, HIPAA states the patient's consent is not required for disclosure of information when required by law. It is common practice to send notice to the patient when this occurs and allow the patient to oppose. There are two types of subpoenas: court-issued and grand jury subpoenas, and subpoenas that are issued by attorneys for legal discovery.

    The first type, court issued and grand jury subpoenas can be challenged but when there aren't grounds for objection the healthcare organization or other CE is required to disclose patient information specifically requested by the court order and no more. If additional documentation was provided other than what was asked for, this becomes impermissible disclosure of personal health information (PHI). The HIM professional can navigate this successfully by redacting PHI within the documents that are requested by the subpoena. Protecting patient's private health information is covered at all times by HIPAA regulations.

    The second type is a little more involved. To satisfy a subpoena request made by an attorney or by court clerks, HIPAA requires one of three conditions to be met by the requesting party:

    good faith attempt made to request information from patient or patient's legal team,

    written statement attesting to information requested is limited to its use and protected while in custody and returned upon end of its use, and lastly,

    reasonable efforts have been made to notify the patient and allowing a response. A valid HIPAA authorization will have to be obtained from the patient for release of information (ROI) specific to the subpoena request for documentation.

    It is important to make a note that if the subpoena requested documentation cannot be provided, the valid subpoena cannot be ignored. You may request to quash or object to the subpoena if time constraint cannot be met. It is also extremely important that the HIM professional or its department keep a log of all requested information.

    Reference

    [USC02] 42 USC 17935: Restrictions on certain disclosures and sales of health information; accounting of certain protected health information disclosures; access to certain information in electronic format. (n.d.). Retrieved January 7, 2021, from https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section17935&num=0&edition=prelim



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    Kelly Randell
    DRG Analyst
    [G2 Corporation]
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  • 6.  RE: Out of State Subpoena Duces Tecum Without Deposition

    Posted 13 days ago
    Totally agree. Anytime you receive a subpoena, the first thing to do is validate it with your organization's legal counsel. If it is not valid, simply do nothing.

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    Kelly Randell
    DRG Analyst
    [G2 Corporation]
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  • 7.  RE: Out of State Subpoena Duces Tecum Without Deposition

    Posted 13 days ago
    Agree with everyone's comments below.  I've always required an in-state Subpoena.

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    DeAnn Tucker MHA, RHIA, CHPS, CCS
    Senior Manager | Coker Group
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