March 5, 2018 Kaiser Permanente Central ROI Unit Empire Corporate Plaza 10740 4th Street, 2nd Floor Rancho Cucamonga, CA 91730 Phone: (909) 367-7705 Subpoenas unaccompanied by a court order or patient release form will be redacted pursuant to Cal. Practical advice:Look specifically for a checkbox or judges signature on the subpoena form to confirm that its signed by a judge and not the court clerk or attorney. Also remember that even after patients die, therapists and covered entities can still face liability for breaching the patients confidentiality. Unrelated medical issues can hurt your case - Plaintiff Magazine Please note that it may take additional processing time to respond. Dealing with a healthcare audit can be stressful, but proper planning and an accountable response can help minimize audit burdens. Under California law, the choice of a personal representative depends on whether the decedent left a will (the legal document instructing how his or her estate is to be divided). The information provided in this resource does not constitute legal, This article offers guidance about what to do and what not to do after being served with a subpoena or request for documents including PHI. Can Medical Records be Subpoenaed? What are the 18 Identifiers of Protected Health Information? Healthcare providers can object to a subpoena for medical records when it has been signed by a court clerk or attorney for a variety of reasons. The Big Three: The three most important subpoenas you must serve in In such cases, the court appoints a personal representative for the decedents estate. They should determine that the person requesting the release of protected health information of a deceased individual is the person authorized by law to act on behalf of the deceased patient before releasing protected health information. Access Records | MBC Liam Johnson has produced articles about HIPAA for several years. Learn about how our 5 tips for reducing burnout in healthcare can improve staff retention and ensure a great patient experience. These fall into two main categories: If the subpoena is signed by a judge or magistrate, has been issued as part of an administrative tribunal or a grand jury subpoena, the request must be honored and health information must be provided, although it is possible to object to by writing to the court specifying the grounds for objection. The patient did not object to the subpoena or that any objections by the patient were adequately resolved by the court. The qualified protective order limits the use of the information solely to the lawsuit and requires all information to be destroyed or returned when the lawsuit ends. If a valid subpoena for medical records is received by a HIPAA-covered entity, the request cannot be ignored and a prompt response is required to avoid contempt sanctions, but care should be taken responding to the subpoena as there is considerable potential for a HIPAA violation. Protecting your client's privacy - Plaintiff Magazine Additionally, in the case of subpoenas, the healthcare provider or health plan should try and inform the relevant patients (giving them a chance to object) and ensure that the PHI will be protected once handed over. Request records, forms, & certifications . A written statement and accompanying documentation are received from the person issuing the subpoena demonstrating all parties to the lawsuit have agreed to a qualified protective order to maintain the confidentiality of the supplied information or that such an order has been requested. Freedom of Information Act Office. A subpoena is a legal request attorneys, court clerks, and other legal professionals send to request relevant documents and/or an appearance to testify. 8 164.502(g)(4) Proof that service of the subpoena on the patient or his or her legal representative has been waived by a court for good cause; or3. Retain a minor patient's health care service record for a minimum of seven (7) years from the date the minor patient reaches eighteen (18) years of age; and, Maintain the record in either electronic or written form. Deceased patients still have the right to confidentiality of their protected health information, but it may take some investigation for a covered entity to determine the identity of the individual that may authorize the release of the deceased patient's records. This resource has been created as an aid to you in your practice. Also make sure you log any requests along with the actions taken in response to the subpoena, along with the information provided. Responding to Subpoenas for Mental Health Records in California The personal representative would continue to have the right to access protected health information of the decedent, as well as to authorize the use and disclosure of the protected health information that are not otherwise permitted or required by the Privacy Rule. Those people are relatives of the deceased, or certain representatives of those relatives. seq. }); The best resource to view your compliancerequirements and avoid HIPAA violations. The party seeking the disclosure has put in place or requested a protective order to prevent further disclosures. The legal maximum time to fulfill a request in California is 15 days, although we strive to process requests sooner. They should determine that the person requesting the release of protected health information of a deceased individual is the person authorized by law to act on behalf of the deceased patient before releasing protected health information. When determining legal protocol when responding to a subpoena, healthcare providers must follow the most strict between state and federal laws regarding the exchange of protected health information. or Health & Saf. In most states, an attorney can subpoena medical records. Remember, do not immediately respond even if it is a valid subpoena. The subpoena, summons, warrant or court order seeking or requiring production of the medical records; 2. Finally, health care providers need to remember that HIPAA is the minimum requirement. For example, if you need medications that were given to the deceased, include a Medicinal Administration Request, or MAR. However, under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, the legal representative for a deceased individual has the right to request those records. For example, if a lawyer sought to retrieve psychiatric records to fish out character flaws to defame your character, theres no way a judge would provide a signature to bypass subpoena limitations. Responding to Medical Record Subpoenas | MagMutual Therapists should request and review certain legal documents which provide information about the right of access. Practical Advice: Remember when communicating with the party seeking the record, even mentioning the existence of this highly sensitive PHI could be a HIPAA violation. Requests may be needed for various reasons including autopsy of the deceased or medical history for other family members. A written statement and accompanying documentation are received from the person issuing the subpoena demonstrating a good faith attempt was made to provide written notice of the subpoena to the patient or his or her legal representative; the notice included sufficient information to inform the patient that they have the right to object to the subpoena; the time for objecting the subpoena has passed and the patient did not object to the subpoena or an objection was satisfactorily resolved by the court. Court orders are issued by judges or administrative tribunals. Consider whether other laws in addition to HIPAA limit disclosures (e.g., state law limits on disclosures for mental health records and drug/alcohol treatment records). Written assurance from the party seeking the records that either: (a) the patient or his or her legal representative has not objected to the disclosure of the medical records, and 30 days has elapsed since the notice of the subpoena was sent to such person; or (b) the objections of such person have been resolved, and the request for medical records is in accordance with that resolution; or2. Submit a medical request online, or find information about how to request medical care from Kaiser Permanente. Once you know which records to send, pay attention to the calendar. jQuery( document ).ready(function($) { This allows time for the other party to either object to a subpoena request or seek answering evidence. Consequently, expert and specialist legal advice is needed for the specific circumstances of each subpoena, and healthcare providers and administrators should always obtain legal advice before responding to a subpoena for medical records. HIPAA Journal's goal is to assist HIPAA-covered entities achieve and maintain compliance with state and federal regulations governing the use, storage and disclosure of PHI and PII. What are hackers doing with your medical records? P. 1.410 (c). Whether you are a patient seeking to retrieve your own medical records for an upcoming court case or a legal professional requesting on behalf of a client, ChartRequest can help you get your medical records faster. Health Information of Deceased Individuals | HHS.gov HIPAA Subpoena for Medical Records: What You Need to Know The law applies only to the records of a patient whose therapy terminates on or after January 1, 2015. An objection has not been filed by the subject of the PHI and the time to file an objection has elapsed. It is not unusual for a subpoena to request that records be delivered within a week. 14-1000Atlanta, GA 30305800-282-4882. Most of the time, yes, your written consent is required before your medical records can be released to anyone.