Responding to a Subpoena–What You Need to Know

✓Involve your Professional Liability Insurance provider first before initiating any steps.
✓Identify who issued the legal document as soon as you receive a subpoena.

If the subpoena is issued by a court, it is a court order.

• A covered health care provider under HIPAA may disclose protected health information, however the provider may only disclose the information specifically described in the court order.
• A release/ authorization is not required if the subpoena is legal and if it is properly issued.
• The subpoena must be issued by the court, state or federal agency, and it must be specific as to what you need to produce.
• Before disclosing protected health information, please consult with your state’s laws and the NASW Code of Ethics as to how to proceed if you believe disclosure would harm your client/ patient.
• If the Court orders that the information is to be disclosed, comply with the Court Order (unless the client appeals the Court’s ruling).

If the subpoena is issued by someone other than a Court, notify the person who is subject to the information requested to obtain consent to release the information or to give the person the opportunity to object to the disclosure.

• If the person DOES NOT consent to any disclosure of information, or should not be disclosed in order to protect your client/ patient, seek a qualified protective order.
• Inform the client’s attorney that the client DOES NOT consent to the disclosure of information.
• Request the client’s attorney protect the client’s privilege by raising legal arguments and objections with the Court.
• If the client’s refusal to waive privilege has not been raised by the client’s attorney, make certain that you attend any court hearing or deposition to which you have been subpoenaed; and then inform the judge that the information sought is confidential and privileged, and, therefore, cannot be disclosed without a Court Order.
• If the Court rules in the client’s favor, no disclosure of information will be required.
• If the person DOES consent, secure a written authorization with the client’s signature from the client for the disclosure.
• You may be able to arrange for production of documents via affidavit to avoid physically appearing in court or for deposition. Call the issuing party to determine if this is an option.
• You may also ask the requesting party to reschedule the date and time of your production. Simply call the person who requested the subpoena be issued and confirm your modified arrangement with them in writing.

✓Record all actions taken to obtain the client’s consent to disclose information or to protect the privacy of privileged information. Document what information was disclosed.

✓Advise the attorney requesting your testimony in advance of your fees and policy for payment if you are required to testify in court or at a deposition.

✓Remember, timing is critical when responding to subpoenas or run the risk being held in contempt of court.

Professional Liability Insurance policyholders have exclusive access to a Risk Management Helpline staffed with risk management personnel and claims attorneys that will assist with this process. Preferra Insurance Company works to ensure that our valued policyholders are properly protected and equipped with the knowledge and resources needed to maintain a high standard of client care.

Published June 2013