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