Firm News. Print PDF. By: Paige K. And, for the record, attorneys are empowered by law to issue subpoenas, so a subpoena that comes from an attorney is just as legitimate as one that comes from a judge. This is an important distinction to note. Consequently, in furtherance of this legal obligation, the prudent therapist would not testify or disclose records to anyone without authorization from the patient waiving the psychotherapist-privilege or an order from a judge.
The process of compelling the attendance of people or documents to court is carried out by serving, which is a legalistic term for delivering, certain documents on a witness. It is the law of the land that these subpoenas must be served personally.
Receiving a subpoena in the mail or from a suitemate, finding one in your office or on your waiting room floor, or finding one stuffed between the cushions of your couch does not constitute personal service. As an aside, if you live in a gated community, do not think that you cannot be served with a subpoena at your home. Guards at gated communities must allow a peace officer or a licensed process server, with proper identification, of course, into the community to serve subpoenas.
The concept of service, however, is much broader than just the physical delivery of documents to the witness. For a subpoena to be prepared and served in accordance with California law, depending on the type of subpoena, it may have to be accompanied by certain documents and there may be certain timelines that have to be adhered to or the subpoena is invalid.
This is where the technicalities creep in like the fog in San Francisco, but these documents and timelines are important because they ensure that a patient has enough time to assess and redress his or her privacy rights. The technicalities are our friend because they aid us in preserving patient privacy rights. Types of Subpoenas Six 6 of the most common types of subpoenas you may encounter are:.
A Deposition Subpoena for Personal Appearance. This subpoena commands your appearance, but not your records, at a designated time and place for a deposition. If served with this subpoena, you should receive the actual subpoena and a proof of service. With this subpoena, you may want to consult with your malpractice carrier about whether it is possible to secure legal representation for you at the deposition.
To be valid, this subpoena must be:. This subpoena commands the appearance of your records, but not yourself, at a designated time and place for a deposition.
This subpoena commands the appearance of you and your records at a designated time and place for a deposition. Rose notes that when fulfilling a subpoena request, HIM professionals should provide exactly what is asked for—no more, no less.
What is meant for one organization can have a totally different meaning for another organization," she says. Authorization also can be dicey. Whether it must be present with the subpoena can vary by state law—and even that's not straightforward. To Send or Not to Send Not all subpoenas should be adhered to. Some didn't contain the patient's date of birth, some didn't request the dates of service, and others sought information that wasn't permitted to be released.
For example, Grant notes that if the record contains privileged or sensitive information, the subpoena does not apply. Rose says subpoenas requesting psychotherapy notes or alcohol and drug abuse records should not be filled unless the proper authorization is obtained from the patient. In these cases, an objection letter must be sent to the attorney who requested the information explaining why the information can't be released and why the subpoena can't be processed. It's their responsibility to either get a court order or patient authorization," Grant says.
It often is difficult for health care organizations to make sense of the gray areas between following court directives and complying with HIPAA regulations. Subpoenas issued pursuant to a judicial or administrative tribunal order override any HIPAA obligation as long as the subpoena has been signed by a judge with proper jurisdiction.
However, Grant says if the judge who signed the court order is out of state, the health care organization is not obligated to respond to the subpoena. Redacting Information Applegate says redacting documents may occur at some health care organizations but typically most states do not redact actual information listed on a specific page. Subpoena FAQs questions. Who should I contact if I have a process server at my door, or if I know nothing about process service on campus?
What is service of process? What is required for service of process? What is service of a Summons and Complaint? How should I respond to a Summons and Complaint delivered to my Campus office? What is a Subpoena? Who can issue a Subpoena? If a Subpoena is issued, does it mean the University is being sued? Who may accept service of a Subpoena? If the Subpoena is directed to me, personally, can someone else accept service on my behalf? Are there different types of Subpoenas?
Are there special considerations when Student, Employee or Consumer records are subpoenaed? Do I always need to consult with OLA when preparing a response? What are the deadlines for responding to a Subpoena? What if I have no records to produce as described in the Subpoena? Can I negotiate the scope of the documents requested in a Subpoena? What about documents that may be subject to non-disclosure?
Will I get paid for giving testimony required by a subpoena? What if I am required to turn over original documents?
What about the cost of producing the records that comply with the Subpoena?
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