Responding to Subpoenas for Health Department Records

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Health Law Bulletin No. 82 September 2005relevant to the proceeding, the judge may refuse toallow disclosure or may narrow the information thatmust be disclosed. 54 Once the judge orders disclosureof the records, the custodian may safely do so. 55 Thecustodian should consider bringing a copy of anyapplicable laws to court to assist the attorneys andcourt officials.The option of appearing at the proceeding andenlisting the judge’s assistance in determining theextent of disclosure is not feasible when you havebeen subpoenaed to a deposition (or to producerecords at a person’s office) because a judge willalmost never be present. If you believe the recordsare confidential and cannot be disclosed without theorder of a judge, contact your attorney aboutcontesting the subpoena. See Question 23, above, forcontesting a subpoena for a deposition or to producerecords.Question 30. Is there any way that I cancomply with a subpoena for confidentialrecords without appearing at theproceeding?As mentioned above in Question 20, there is a“mail-in” procedure available for “hospital medicalrecords.” Many health departments have relied onthis procedure to avoid the time and expenseassociated with appearing at court proceedings. Forrecords subject to the physician-patient privilege,health departments must proceed carefully to ensurethat the records are not disclosed without the courtorder required by that law.The mail-in procedure followed by most healthdepartments is:• seal the records in an envelope,• include an affidavit stating that the copiesare true and correct copies and that the54. See State v. Adams, 103 N.C. App. 158, 161, 404S.E.2d 708, 710 (1991) (upholding trial court’s orderprohibiting party from examining medical records or crossexaminingcustodian of those records about their content).55. The custodian is not required to appeal the judge’sruling, even if it appears to be wrong. The right to appealan order requiring compliance with a subpoena is beyondthe scope of this bulletin. See generally 9A CHARLES A.WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE ANDPROCEDURE CIVIL § 2466, at 87–91 (2d ed. 1995). If youwant to contest a judge’s ruling requiring disclosure,consult an attorney.records were made and kept in the regularcourse of business,• include a letter or memo outside the sealedenvelope indicating the case for which thedocuments have been requested, and statingclearly that the documents are privileged andshould not be disclosed without a courtorder, and• deliver the records to the clerk of court (andobtain a receipt) or send them by registeredmail or certified mail (return receiptrequested).This mail-in procedure is still allowed understate law but, if the requested records are subject tothe HIPAA Privacy Rule, the health department mustnow comply with additional administrativerequirements before mailing the records to thecourt. 56The Privacy Rule requires either (a) a good faithattempt to notify the patient or (b) a qualifiedprotective order issued or approved by a court. 57 In56. The HIPAA Privacy Rule applies to uses anddisclosures of identifiable health information. The mail-inprocedure authorized in North Carolina’s law implicatestwo possible “disclosures” under the Privacy Rule. First,sending the records to the clerk of court—even in a sealedenvelope—may fit within HIPAA’s broad definition ofdisclosure. See 45 C.F.R. 160.103 (defining the term“disclosure” as the release, transfer, provision of access to,or divulging in any other manner of information outside theentity holding the information). Second, North Carolinalaw may allow the parties to the case to review the recordssent to the clerk before the court has ordered disclosure.See N.C. R. CIV. P. 45(c)(2) (rule states that hospitalmedical records mailed to the court are not open toinspection except to parties to case); but see Bass v. Sides,120 N.C. App. 485, 462 S.E.2d 838 (1995) (beforeobtaining judge’s permission, plaintiff’s attorney reviewedconfidential medical records of defendant that recordscustodian had sealed and mailed to court clerk in responseto subpoena; judge ordered plaintiff’s attorney to paydefendant’s attorney fees, totaling approximately $7,000,and prohibited plaintiff from using records at trial); 1 JOANG. BRANNON & JAN S. SIMMONS, NORTH CAROLINA CLERKOF SUPERIOR COURT PROCEDURES MANUAL 52.7–52.8(Sept. 2003) (cautioning clerks about releasing sealedevidence without further order of a judge). Because of thesepotential disclosures, the health department must alsocomply with the subpoena procedures in the HIPAAPrivacy Rule, discussed above, before following this “mailin”procedure.57. See 45 C.F.R. § 164.512(e).16
September 2005 Health Law Bulletin No. 82most cases, the health department will not beresponsible for notifying the patient or moving forthe protective order. 58 Rather, the department will berelying on written documentation from thesubpoenaing party demonstrating that he or she hascomplied with the HIPAA procedures.The types of documentation the healthdepartment should look for will vary depending onwhether the subpoenaing party complied with thenotice provisions or the qualified protective orderprovisions. If the subpoenaing party complied withthe notice requirements, the health department shouldexpect a written statement explaining that thesubpoenaing party has made an attempt to providewritten notice to the patient (which may be bymailing the notice to the patient’s last knownaddress) and “accompanying documentation”demonstrating that fact. While the Privacy Rule doesnot define the term “accompanying documentation,”in this context it could mean (a) a copy of the noticeand (b) a copy of any official court record indicatinghow objections to the subpoena (if any) wereresolved by the court or the parties. It must be clearfrom the statement and/or the accompanyingdocumentation that the patient had an opportunity toobject to the disclosure and the patient either did notobject or objected and the objection was resolved.If the subpoenaing party complied with thequalified protective order requirements, the healthdepartment should expect a written statementexplaining that the subpoenaing party has eitherrequested a qualified protective order from the courtor the parties to the dispute have agreed in advance to58. The Privacy Rule does allow the health departmentto take the initiative to provide notice to the patient or seeka qualified protective order. 45 C.F.R. 164.512(e)(vi).While a department may wish to pursue one of theseoptions, it must balance the administrative burdens of theseefforts against the burdens associated with complying withthe subpoena without using the mail-in procedure. It maybe that written notice to the patient would be relativelysimple, but the notice must meet all of the criteria inHIPAA. Specifically, the notice must identify the litigationand offer the individual an opportunity to raise an objectionto the court. After giving notice, the health departmentmust refrain from disclosing any information until the timeperiod in which the individual may object has elapsed andeither no objections were filed or all the individual’sobjections were resolved in a manner that permits thedisclosure. If the department elects to follow theseprocedures, it should have clear, written policies andprocedures for staff members to follow and require staffmembers to carefully document their efforts.a qualified protective order and have presented theorder to the court. The term “qualified protectiveorder” has a particular meaning in this context. 59 Inshort, it is an order that limits the use and disclosureof the information and requires that the information(including any copies made) be returned ordestroyed. The “accompanying documentation” inthis context would likely be a copy of the motion fora protective order and possibly any court recordsdemonstrating that the motion has been submitted(which may simply be a stamp on the face of theorder itself).In the absence of documentation related to eitherpatient notice or a qualified protective order, thehealth department should not follow the mail-inprocedure. Rather, it should appear in court at thedesignated time. Remember that the mail-inprocedure is optional; a health department could electto establish a policy of always appearing in person toobtain a court order. While such a policy could meanmore administrative burdens for the department, itwould ensure that confidential records are protecteduntil the court issues its order. When records aremailed in, the health department has no way ofknowing whether they remained under seal until thecourt ordered disclosure.Question 31. How should I respond if thesubpoena directs me to testify in court orat a deposition and I anticipate that thequestions will solicit confidentialinformation?A subpoena directing you to testify will specify atime and place for you to appear. If the subpoenarequires you to come to court to testify, you shouldmake every effort to appear at the designated timeand place. When asked to disclose information that isconfidential under state or federal law, you shouldbriefly explain the legal restrictions to the presidingjudge. If the judge orders you to disclose theinformation, then you may do so. Disclosingconfidential information when ordered to do so by ajudge is allowed under state and federal law. 60 Thecourt’s order is not required to be in writing.59. 45 C.F.R. 164.512(e)(1)(v) (outlining therequirements of a qualified protective order).60. See 45 C.F.R. 154.512(a) (HIPAA Privacy Ruleprovision authorizing disclosures required by law,including court ordered disclosures); G.S. 8-53 (statephysician-patient privilege law authorizing disclosure whenordered to do so by a district or superior court judge upon a17
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Responding to Subpoenas for Health Department Records

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