Presented by Jennifer Coughlin Eugene, Oregon April 10, 2013.
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Presented by Jennifer Coughlin
www.brotherslaw.com
Eugene, Oregon
April 10, 2013
*Medical Records Subpoenas
*Topics of Conversation1. Civil Proceedings: How to Subpoena
Medical Records Under HIPAA and Oregon Law
2. Information to Secure
3. Criminal Proceedings: How to Subpoena Medical Records Under HIPAA and Oregon Law
4. Civil vs. Criminal
5. Violations: what happens if you produce records in violation of HIPAA or state Law?
*Civil Proceedings: How to Subpoena Medical Records
Under HIPAA and Oregon Law
*ORCP55:Subpoenas *ORCP55H: Individually Identifiable Health
Information * 55H(1) (a) Definition
* 55H(1) (b) Qualified protective order
*Unless State or Federal Law Has Other
Requirements
*55H(2)(a)
*Modes of compliance for attorneys
*QPO or affidavit:
*14 day objection
*Sufficient information
*No objections or resolved
*55H(2)(b)
*Mailing within 5 days
*Affidavit from records custodian
*ORCP 55H(2)(c)
* Inner envelope
* Title and number of action
*Name of witness
*Date of subpoena
*Outer envelope
*Court attendance
*Deposition attendance
*Hearing attendance
* To attorney issuing subpoena
* Inspection or copy
*Requests
*Inspection after filing and giving notice
*ORCP 55H(2)(d)
*ORCP 55H (3)
a) Affidavit or declarationi. Duly authorized
custodian
ii. True copy of all records responsive
iii. Control of or ordinary course of business
b) None or part, put in affidavit
c) More than one affidavit or declaration
*ORCP 55H(4)
a) Personal attendance “The personal attendance
of a custodian of records and the production of original records is required by this subpoena. The procedure authorized pursuant to ORCP 55H(2) shall not be deemed sufficient compliance with this subpoena.”
b) More than one subpoena i. Custodian is
witness to first party
*Tender and payment of fees
Nothing in this section requires tender or payment of more than one witness and mileage fee or other charge unless there has been an agreement to the contrary.
*ORCP 55H (5)
*Information to Secure
*When was subpoena
served?
*How and upon whom was
it served?
*What documents
accompanied the
subpoena?
*Is there a release on file
to disclose the
information sought?
• Has the witness:• Agreed to the time and
date?
• Talked to the attorney issuing the subpoena?
*Criminal Proceedings
ORS 136.447Medical records may be obtained by subpoena as provided in ORCP 55and shall be sent only to the court or the clerk of the court before which the
matter is pending.
In relation to grand jury proceedings, notice need not be given as required in ORCP 55H and the medical
records shall be sent only to the grand jury.
Is it a subpoena issued by the prosecutor or defense attorney?
YES
Release on file?
YES
Produce the Records
Is the subpoena accompanied by a
release or court order signed by a judge authorizing
the disclosure of the records?
YES
Produce the records as
directed by the subpoena
Was the subpoena accompanied by the assurance affidavit stating:
YES
Produce the Records
• Patient was provided notice of subpoena
•Time for objection has passed or that all objections have been
resolved and production of the records is consistent
Attorney has attempted to provide written notice to
patient?
YES
Produce
the Record
s
No HIPAA assurance
affidavit received,Is there
documentation with the subpoena or information in it that establishes:
Notice to patient sufficiently described the lawsuit or proceeding to allow the patient to object to the production of the records or information if patient was so inclined
Has at least 14 days passed from the date patient actually received the notice and: •Patient has not objected; or•Patient’s objections have been filed with the court; and•The court has ruled on those objections
If no HIPAA assurance affidavit has been provided by the attorney and there is insufficient documentation
providing the previously mentioned information…
Request that the attorney issuing the subpoena provide a
release or an assurance affidavit
If that is produced
ProduceThe
Records
If the attorney
refuses to provide a release or
an assurance affidavit
Appearance required at a deposition?
Appearance required in court?
Send a letter
objecting to the subpoen
a
File a motion to quash
Is the subpoena for drug or alcohol
records? YES
Is there a release in the file or is the subpoena accompanied by a release authorizing disclosure of
the requested information that complies with requirements of 42 CFR 2.31?
YES
Produce the Records
Does the
release contain:
•Specific name or general designation of the program or person permitted to make the disclosure?
•Name or title of individual or name of the organization to which disclosure is to be made?
•Name of patient?
•Purpose of disclosure?
•How much and what kind of information is to be disclosed?
•Signature of the patient or the person authorized to give consent on behalf of the patient?
•The date on which the consent is signed?
•A statement that the consent is subject to revocation at any time except to the extent that the program or person which is to make the disclosure has already acted in reliance on it?
•The date, even or condition upon which the consent will expire if not revoked before?
YES
Produce the
Records
If there is no consent which complies with 42 CFR 2.31, is there a court order signed by a judge (not a
clerk) expressly and specifically referring to the drug/alcohol treatment records being sought that
states …•Patient and healthcare provider had
been given sufficient notice of the application to the court for the order
to obtain the records;• The court finds that other ways of
obtaining the same information being sought are “not available or
would not be effective”;• The court finds that the public
interest and need for the disclosure outweigh the potential injury to the
patient, the physician-patient relationship and the treatment
services;• The order names the specific persons to whom the disclosure
needs to be made.
YES
Produce the
Records
If there is no court order, and no
consent…
Appearance required at a deposition
Appearance required in
court
Send a letter objecting to the subpoena
File a motion to quash
*Civil: can produce directly to attorney
*Criminal: can only produce at court hearing/trial
*Civil vs. Criminal
*ViolationsWhat happens if you produce records in violation of HIPAA or State Law?
a) Civil finesi. Individual did not know (and by
exercising reasonable diligence would not have known) that he or she violated HIPAA:
i. Min: $100/violation
ii. Max: $50,000/violation
ii. Violation due to reasonable cause and not due to willful neglect:
a) Min: $1,000/violation
b) Max. $50,000/violation
iii. Violation due to willful neglect but violation is corrected within required time period (30 days):
a) Min: $10,000/violation
b) Max: $50,000/violation
iv. Willful neglect not corrected:a) Min: $50,000/violation
b) Max: $50,000/violation
b) There is no private right to a cause of action under HIPAA. The only remedy is under State law causes of action
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