A Step-by-Step Guide for Responding to Medical Record Subpoenas

By Raj Shah, Esq., Senior Regulatory Attorney, MagMutual

2020 Alliance sponsor feature article courtesy of MagMutual

Healthcare providers are aware that HIPAA and state privacy laws place restrictions on the disclosure of protected health information (PHI) to third parties. If a request for records comes via subpoena, discovery request or any other court order, the provider must not ignore it because a response is usually required. However, while you shouldn’t ignore the subpoena or discovery request, the consequences of responding incorrectly to a request can be even more severe than those of ignoring it altogether. Once a subpoena is received, DO NOT ignore it, but also DO NOT immediately disclose the records, as you could be in violation of HIPAA or state privacy laws and face severe penalties. 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.

Step 1: Check if the Request is Signed by a Judge

Court Orders, Court-Issued Subpoenas and Grand Jury Subpoenas. If you receive a court order or a subpoena that is signed by a judge, magistrate, administrative tribunal or a grand jury subpoena, you must disclose the requested information. Still, remember to disclose only the information expressly requested, and nothing more. For example, if the subpoena asks for records relating to a specific date of service, only send records from that day and not the patient’s whole record. (If the document you received meets these criteria, there is no need to go on to the other steps, but additional information is available at the end of this document.)

Practical Advice: Look specifically for a checkbox or judge’s signature on the subpoena form to confirm the subpoena is signed by a judge and not the court clerk or attorney. The judge’s name should also be listed in print next to the signature.

Step 2: Responding to Lawyer or Clerk Signed Requests

Attorney-Issued Subpoenas or Discovery Requests. A subpoena or discovery request signed by someone other than a judge, magistrate or administrative tribunal – most likely a court clerk or an attorney – is NOT a court order. A subpoena signed by an attorney or a court clerk requires additional assurances under HIPAA. If you receive a subpoena or discovery request that is signed by an attorney or court clerk, you can not disclose information unless one of the following conditions are satisfied:

1. Provider must receive a written statement and accompanying documentation from the attorney issuing the subpoena demonstrating that:
   1. A good faith attempt was made to provide written notice of the subpoena to the patient or his or her attorney (this can be satisfied by a cover letter accompanying the request that that patient’s attorney was notified via a carbon copy);
   2. The written notice included sufficient information to allow the patient to raise an objection to the subpoena;
   3. The time for objecting to the subpoena has passed; and
   4. The patient did not object to the subpoena or that any objections by the patient were adequately resolved by the court.
2. Provider makes reasonable efforts to provide notice of the subpoena to the patient and the patient does not make any objections to the release of their PHI.
   1. Examples of reasonable efforts to notify the patient include calling the patient or sending the patient a letter via mail or email explaining that you’ve received a subpoena requesting disclosure of their protected health information, and you are required to respond unless the patient has the subpoena set aside before the time for responding has expired and notifies you that the subpoena has been set aside.
3. Provider may obtain a valid authorization form signed by the patient for the release of their records. This is the provider’s HIPAA authorization that patients in the office routinely sign to obtain their PHI. To be valid, the authorization form must contain the elements and statements required by the HIPAA Privacy Rule. The form also must be signed by the appropriate person, which may be the patient or may be the patient’s personal representative (if, for example, the patient is a child or an incapacitated adult).
   Practical Advice: If a subpoena is accompanied by an authorization or other document labeled “release” or “waiver” or something similar DO NOT USE IT. Some of the elements of an authorization that make it HIPAA-compliant are not intuitive and may be left out of a form prepared by a person (even an attorney) who is unaccustomed to working with HIPAA. If you receive a subpoena with an attached authorization for the patient to sign, do not use it and use your practice’s HIPAA authorization form instead.
4. Provider must receive a written statement and supporting documentation demonstrating:
   1. that the parties have agreed on a qualified protective order or
   2. that the party seeking the information has filed for a qualified protective order. A qualified protective order limits the use of the requested PHI to the lawsuit.
5. Provider makes reasonable efforts to obtain a qualified protective order.

If for some reason the provider cannot satisfy one of these five conditions, they may not disclose the requested PHI, but neither may they ignore the subpoena without subjecting themselves to possible contempt sanctions. Staff members should notify their supervisors if one of these conditions are not met. The supervisors will be able to contact the organization’s attorney or a risk consultant at MagMutual who can provide guidance.

Step 3: See What Information is Being Requested

After determining the attorney-signed subpoena is valid, look at what information is being requested and be sure to provide only what was requested. In most states, for example, a subpoena must specifically ask for specially protected records such as those related to mental health and substance abuse. A subpoena asking for all of a patient’s medical records would not be sufficient to obtain those documents. See the examples below.

1. General Request for Entire Record. If the subpoena is for a patient’s entire medical record, release the record except for specially protected records. Specially protected records include mental health records; drug/alcohol treatment records; psychotherapy notes; testing for or treatment of HIV, AIDS and STDs; and mental health, behavioral health or treatment records of substance abuse programs. If you are unsure if a part of the record is specially protected, ask a supervisor.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. For example, do not say, “We can send over the record except for the HIV treatment information.”
2. Requests for Specially Protected Records. If the request specifically asks for specially protected records, they can only be released under one of the following conditions:
   1. A court order signed by a judge specifically ordering the records related to these specially protected areas; or
   2. A valid authorization signed by the patient specifically authorizing the practice to release that portion of the record.

Step 4: Watch and Diary the Calendar

Once you know which records to send, pay attention to the calendar. Note the date by which the records are required, which sometimes can be too soon for the provider to comply. A short deadline also doesn’t allow enough time if the patient must be contacted for authorization or for the patient to object to the subpoena. It is not unusual for a subpoena to request records be delivered within a week. If the time to respond seems too short, contact your supervisor. If no time to respond to the subpoena is listed, you should respond after 21 days (ideally between 21 and 25 days). Remember, do not immediately respond even if it is a valid subpoena. This gives the patient time to sign an authorization or file an objection.

General Checklist for Responding to a Subpoena Requesting Protected Health Information

These are steps to be taken to comply with a subpoena while at the same time protecting patient privacy and confidentiality. A provider should do the following:

1. Confirm that the subpoena is valid (if it’s from an out-of-state court, it’s probably invalid)
2. Identify who signed the subpoena (e.g., judge, administrative agency, attorney, court clerk)
3. If the subpoena is signed by an attorney, contact the party issuing the subpoena to obtain satisfactory written assurances or a qualified protective order.
4. When the subpoena is requesting records relating to a limited number of patients, notify the patients whose records are being sought as already outlined and/or determine whether the patients will provide a valid HIPAA authorization that complies with HIPAA. (Remember you can use either a MagMutual authorization form or your practice’s existing authorization form.)
5. If there are any questions about whether or which documents can be produced, ask your supervisor.
6. 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).

Considerations for Deceased Patients

If a subpoena is requesting the medical records of a deceased patient, the same rules listed above apply, except that any authorization must be given by a “personal representative” of the deceased patient. The executor of the patient’s estate is a “personal representative” and may sign the authorization as well as be substituted for the deceased patient for the purpose of notice or qualified protective orders. The patient may also sign a HIPAA release prior to death that designates an individual to have access to their PHI. Even if not an executor or specifically designated by a HIPAA authorization form, family members or individuals involved in the patient’s care may also be “personal representatives” if the request is relevant to their involvement in the patient’s care, unless releasing the records is against the preference of the deceased patient.

The 411 on HITECH and HIPAA IT Compliance

By Judi Grassi

2020 Alliance sponsor feature article courtesy of Carolinas IT: A Logically Company

Most group practices and clinics have adopted the Electronic Health Record (EHR). If you’re one of these organizations, you know how imperative it is to keep your Electronic Protected Health Information (EPHI) safe. Both HIPAA and the HITECH Act lay out very specific requirements about data protection and regardless of your size, you are required to keep your Protected Health Information (PHI) data secure. This is especially imperative if your organization electronically transmits health information for financial or administrative reasons, such as claims processing, benefit eligibility, referral authorization requests, and other transactions defined under the HIPAA Transactions Rule.

Three Areas of HIPAA IT Compliance

HIPAA IT compliance is the responsibility of every administrative and clinical staff member in your organization. To make compliance requirements easier to digest, HHS established three areas of HIPAA IT compliance.

1. 1. Administrative — These measures ensure the integrity of patient data and accessibility only to authorized parties. It requires HCOs to:
      • Implement a security management process that identifies potential risks to EPHI and appropriate security measures to reduce risks and vulnerabilities.
      • Designate a security official who is responsible for ensuring HIPAA and HITECH compliance.
      • Identify who has authorized access to EPHI.
      • Provide appropriate security training to employees and follow through with appropriate sanctions against any employee who violates security policies.
      • Perform a periodic assessment to assess the effectiveness of your security policies.
   2. Physical — These measures ensure the security of facilities and devices that contain EPHI. It provides HCOs to:
      • Limit physical access to their facilities to authorized personnel only and protect against physical intrusion.
      • Ensure secure access to workstations and electronic media. This includes procedures for the transfer, removal, disposal, and re-use of electronic media to ensure appropriate protection of EPHI.
   3. Technical — These measures ensure that your IT systems and networks are secure from data breaches and unauthorized access. It requires HCOs to:
      • Protect their IT systems against digital intrusion and ensure that EPHI is transmitted over a secure network.
      • Only allow authorized individuals to access EPHI and ensure IT systems provide an audit trail to track EPHI access.
      • Ensure EPHI is not improperly or erroneously altered or destroyed.

HITECH Compliance

The HITECH Act of 2009 shored up these privacy and security provisions:

• HCOs, business associates, and service providers are all responsible for the security of EPHI.
• HCOs must promptly notify affected individuals whose PHI was compromised.
• HCOs must report any security breach that affects more than 500 individuals to the HHS Secretary.
• HCO business associates must notify the HCO of any breach at or by the business associate.
• Breaches affecting fewer than 500 individuals must be reported to the HHS Secretary on an annual basis.

How to Comply with HIPAA and HITECH Technical Measures
Whether you are a hospital, clinic, medical practice, HCO business associate, or HCO service provider, you will need to address the following in order to comply with HIPAA and HITECH technical measures.

• Develop policies and procedures for data backup and recovery.
• Back up your data on a regular, frequent basis and ensure you can retrieve exact copies of EPHI and restore any lost data. Follow the 3-2-1 backup rule: 3 copies of your data across 2 media with 1 copy stored offsite.
• Establish acceptable but aggressive Recover Time Objectives (RTOs) and Recovery Point Objectives (RPOs) and develop a disaster recovery plan that meets these objectives.
• Periodically test your disaster recovery plan to be sure it works before a real disaster happens.
• Perform an annual risk assessment to determine whether your systems and data are a security risk and how vulnerable you are to attack.
• Develop a data breach response plan to identify who is responsible for what when a breach occurs, how to communicate with individuals whose PHI was compromised, how to handle the media, minimize further data loss, and remediate the breach.
• Encrypt EPHI data in transit and at rest.
• Ensure HCO business associates and service providers meet HIPAA and HITECH security requirements.

Noncompliance Fines
If you are found in noncompliance with HIPAA and HITECH regulations, it can cost you. Fines are based on the violation category or level of perceived negligence and can range from $100 to $50,000 per violation, with a maximum penalty of $1.5 million per year for each violation (see Figure 1).

Figure 1

If you are breached and fined, your organization is listed on the HHS Office for Civil Rights (OCR) Breach Portal and “Wall of Shame” if the breach involves 500 or more individuals. If your organization has a breach of this magnitude, the name of your HCO will be permanently listed.

Final Thoughts

HCOs have two choices when it comes to HIPAA IT compliance requirements: DIY (Do It Yourself) or hire an IT Managed Service Provider (MSP). Whether you are a large or small HCO, you may find that you have limited IT resources and/or skills in-house to ensure your EPHI is private and secure. Therefore, many HCOs look to HIPAA-compliant MSPs to back up their systems, ensure the privacy of EPHI, and provide the best protection from security breaches.

Figure 1: Categories of Violations and Respective Penalty Amounts Available. Source: https://www.federalregister.gov/documents/2013/01/25/2013-01073/modifications-to-the-hipaa-privacy-security-enforcement-and-breach-notification-rules-under-the#h-95

HIPAA Privacy and Coronavirus

2020 Alliance sponsor feature article courtesy of Total Medical Compliance

While preparing and treating patients that have or might have novel coronavirus (2019 nCoV), it is important to remember your patient’s privacy rights. HIPAA permits the sharing of patient’s protected health information (PHI) for public health activities such as this without a patient authorization.

With whom and when can you share PHI for public health activities? Generally, PHI can be shared with:

• entities that are permitted by law to collect and receive health information for the purpose of preventing or controlling disease such as the CDC or a state or local health department,
• organizations such as the American Red Cross,
• others at risk of contracting or spreading a disease or condition if state law authorizes the covered entity to notify others as necessary to prevent or control the spread of the disease, and
• others involved in the patient’s care such as family and friends. Providers should use their professional judgement here and obtain verbal consent from the patient, if possible.

PHI should not be shared with the media or others not involved in a patient’s care without the patient’s authorization.

The HIPAA minimum necessary standard still applies to the use and disclosure of PHI. The U.S. Department of Health and Human Services says that entities may rely on representations from the CDC or other public health department that the PHI requested by them about all patients exposed to or suspected or confirmed to have novel coronavirus (2019-nCoV) is the minimum necessary. In addition, a covered entity should continue to limit access to PHI to only those workforce members who need it to carry out their duties.

HIPAA Compliance and Information Technology

2018 Alliance sponsor article courtesy of HitsTech

The HIPAA Security Rule, in force since April 21, 2005, established three safeguards:

• Administrative policies and procedures designed to clearly show how the entity will comply with the act.
• Physical measures that control access to data storage areas.
• Technical methods securing “protected health Information” (PHI) that, when transmitted electronically over open networks, is known as ePHI.

The first two safeguards take time and effort but most healthcare providers have staff who can read the manuals, apply the guidelines and develop a compliant infrastructure.

The technical safeguard provision is entirely different!

HIPAA IT skills are not easily mastered. It requires the ability to understand the rules and regulations, envision a network (along with the ePHI flowing through it), and spot vulnerabilities. This must usually be done with a limited budget and with a minimum disruption of provider efficiency.

Deciding how to protect your information is a critical decision. The financial penalties resulting from data breaches along with the colossal costs of issuing breach notifications, providing credit monitoring services, and conducting damage mitigation makes investment in the protection of PHI extraordinarily cost-effective .

If you decide to handle HIPAA technical issues by hiring an in-house IT professional or contract with a Managed Services Provider (MSP) who specializes in healthcare, how do you make the right decision?

Most importantly, your applicant must present a plan that addresses four issues:

1. 1. The protection of the entire volume of PHI and ePHI you process. This includes:
      • Patient names, pictures, biometric data, addresses, contact numbers, insurance information, and any identifying numbers or data.
      • Health insurance plan beneficiary numbers.
      • Vehicle identifiers and serial numbers including license plates.
      • Device identifiers and serial numbers.
      • Web URLs and Internet protocol (IP) addresses.
   2. The ability to defend against known and anticipated threats. Failure to use current generation OS software and protection and tardiness in the implementation of published fixes and patches makes you 40 times more likely to be hacked.
   3. Compliance by other “Covered entities,” “business associates” and third-party service providers who might access your PHI. This includes items sometimes overlooked such as x-rays, physician appointment schedules, dictated notes, conversations, and information placed in patient portals.
   4. Security network components that are affordable and operationally feasible. The following diagrams identifies these components.²

 

²Prevention Data Breaches Diagram used with permission of the HIPAA Journal 2017

There are specific HIPAA standards for servers, hosted environments, cloud utilization VPN architecture, workstations and network components. Your staff or MSP must provide evidence that the components they intend to deploy meet these specifications.

The technical defense you deploy must compensate for common human failings by using:

• Password best practices. Passwords cannot be used by a group, must not be assigned to a position and must be changed every 90 days. Passwords must be sophisticated using letters, symbols, differing case and numbers.
• Screen protectors that limit a third party’s ability to view a protected screen. These are commercially available.
• Automatic controls that close a computer when it is left unattended.
• Auditing techniques that ensure business associate networks are compliant. Remember you remain responsible for ePHI even when it leaves your network for another.
• Restricted use of mobile devices such as flash drives that are not encrypted or are left in unprotected locations.
• Technology that locks misplaced mobile devices.
• Tracking that identifies attempted hacks and determines if data has been compromised.
• An automatic restoration protocol that frequently backs up data so that if you are successfully attacked, it will disable the threat and immediately return your network to its last safe status.
• Disposal procedures that ensure that any device to be disposed of is wiped completely before release from the protected environment.

While I hope this synopsis is helpful, I highly recommend you look at the 2017 edition of the HIPAA Journal’s “HIPAA Compliance Guide”. It provides a detailed analysis of the points made in this paper.

Armed with “Compliance Guide” expertise, explain your goals to your IT staff or MSP and leave the driving to them.

Sandra Loftin
Chief Executive Officer
HitsTech