DEPARTMENT OF HUMAN SERVICES SUBPOENA AND COURT ORDER MANUAL1

This manual can also be obtained in electronic format from the DHS Intranet. It is accessible only to DHS employees within the DHS computer network.

1 This manual was drafted by the Oregon Department of Justice for use by the Oregon Department of Human Services.

Page 1 of 80 Last updated: June 19, 2009 TABLE OF CONTENTS

INTRODUCTION...... 4 DEFINITIONS ...... 5 QUICK REFERENCE GUIDE ...... 7 SUBPOENAS ...... 8

I. WHO TO CONTACT WHEN A SUBPOENA IS RECEIVED ...... 8 II. NEGOTIATING WITH THE PARTY THAT ISSUED THE SUBPOENA ...... 8 III. WHAT TO PAY ATTENTION TO WHEN A SUBPOENA IS RECEIVED...... 9 A. How the Subpoena Was Served...... 9 B. Who the Subpoena Is To and Who It Is From...... 9 C. Determine Whether DHS Has Any of the Records Requested...... 9 D. Determine Whether There Is an Authorization to Release the Information ...... 10 E. Determine If There Is a Basis for Objecting to the Subpoena ...... 10 F. Determine Whether There Are Federal or State Laws that Prohibit the Release of the Requested Information or the Requested Testimony...... 10 G. Determine Whether the Agency Has the Discretion to Disclose Records...... 11 IV. SERVICE OF SUBPOENAS...... 11 A. Oregon Civil Subpoenas...... 11 B. Oregon Criminal Subpoenas (including grand jury) ...... 13 C. Oregon Federal Subpoenas (criminal or civil) ...... 13 D. Oregon Juvenile Proceeding Subpoenas ...... 13 1. Dependency Cases ...... 13 2. Delinquency Cases ...... 13 E. Federal Criminal Court Subpoena from Another Jurisdiction (including grand jury)...... 14 V. OBJECTING TO A SUBPOENA...... 14 A. Oregon State Civil Proceedings...... 14 B. Oregon Juvenile Proceedings...... 16 1. Dependency Cases ...... 16 2. Delinquency Cases ...... 17 C. Oregon State and Federal Criminal Proceedings (including grand jury) ...... 18 D. Oregon Federal Civil Cases...... 18 E. Subpoenas from Outside Oregon ...... 19 VI. SUBPOENAS ISSUED TO DHS CONTRACTORS ...... 19 VII. SUBPOENAS ISSUED BY ANOTHER OREGON AGENCY TO DHS ...... 19 VIII. SUBPOENAS ISSUED IN ADMINISTRATIVE CASES ...... 19 IX. SUBPOENA RECEIVED TOO LATE FOR DHS OR DOJ TO RESPOND ...... 20 COURT ORDERS ...... 22

I. WHAT TO DO WHEN YOU RECEIVE A COURT ORDER TO RELEASE RECORDS ...... 22 II. REDACTING ...... 22 III. RESPONDING TO OREGON COURT ORDERS...... 23 IV. PREPARING DOCUMENTS IN RESPONSE TO A COURT ORDER ...... 23 A. Order for Disclosure to a Party ...... 23 B. Order for In Camera Review...... 23 V. COURT ORDERS ISSUED TO DHS CONTRACTORS ...... 24 VI. OREGON ADMINISTRATIVE ORDERS...... 25 VII. FEDERAL ADMINISTRATIVE ORDERS AND ADMINISTRATIVE ORDERS FROM OTHER STATES... 25 VIII. COURT ORDER FOR DISCLOSURE OF DRUG AND ALCOHOL RECORDS ...... 25 IX. RESPONDING TO AN ORAL ‘COURT ORDER’...... 26 APPENDIX 1: DHS PRIVACY AND SUBPOENA COORDINATORS ...... 27

Page 2 of 80 Last updated: June 19, 2009 APPENDIX 2: SAMPLE OBJECTION LETTERS...... 29

SENIORS AND PEOPLE WITH DISABILITIES ...... 30 PUBLIC ASSISTANCE...... 31 FOOD STAMP ...... 32 VOCATIONAL REHABILITATION...... 34 SELF-SUFFICIENCY ...... 37 APPENDIX 3: IN CAMERA REVIEW LETTER TO COURT ...... 39 APPENDIX 4: DECLARATION OF RECORDS CUSTODIAN ...... 41 APPENDIX 5: COURT STATEMENTS...... 43

SENIORS AND PEOPLE WITH DISABILITIES ...... 44 SELF SUFFICIENCY...... 48 OREGON STATE HOSPITAL/BLUE MOUNTAIN RECOVERY CENTER...... 50 DIVISION OF MEDICAL ASSISTANCE PROGRAMS ...... 53 MENTAL HEALTH AND ADDICTION SERVICES (MENTAL RETARDATION AND MENTALLY ILL)...... 57 MENTAL HEALTH AND ADDICTION SERVICES (DEVELOPMENTAL DISABILITIES)...... 61 MENTAL HEALTH AND ADDICTION SERVICES (DRUG AND ALCOHOL) ...... 65 MEDICAL MARIJUANA PROGRAM...... 70 OFFICE OF VOCATIONAL REHABILITATION SERVICES ...... 72 CHILD WELFARE ...... 75 APPENDIX 6: PRACTICE TIPS FOR TESTIFYING IN COURT AND IN DEPOSITIONS ...... 77

Page 3 of 80 Last updated: June 19, 2009 INTRODUCTION

This manual is meant to provide basic information about subpoenas2 (what they are, what they mean, and how to respond) and complying with court orders that require the release of Department of Human Services (DHS) records. Your program may have more specific information about how to respond to a subpoena, how to handle a court appearance where you need to read a statement to a judge about the applicable confidentiality laws, and how to respond to court orders. This manual is not meant as a substitute for your program-specific instructions, but rather can be used as a general reference guide. The information in this manual was correct as of the date it was published. Because statutes and rules change over time, DHS should periodically check to see if laws have changed.

Most programs within DHS should have someone designated as a subpoena coordinator. The subpoena coordinator is the person to whom subpoenas and court orders should go. The coordinator will work with the Oregon Department of Justice (DOJ) attorney assigned to your program to the extent legal assistance is needed. If your program does not have a subpoena coordinator, send the subpoena or court order to the assistant attorney general (AAG) assigned to your program and that attorney will assist you in a response. Each Division within DHS has a process in place to authorize consultation with its AAG. Before requesting AAG consultation, please be aware that staff are expected to seek approval from their Division's designated authority.

The most conservative approach for dealing with subpoenas and court orders is to send them to the AAG assigned to your program and work with that attorney on a response. As will be stated again below, if you receive a subpoena or court order in a case to which DHS is a party, you must contact the assistant attorney general representing DHS in the matter. Again, remember that you should follow your program's policy for contacting DOJ. If you do not know which attorney is assigned to the case, contact the AAG assigned to your program. However, if your program receives a large number of subpoenas or court orders and you have a subpoena coordinator that is familiar with the statutes and rules that govern what can be disclosed in response to a subpoena or court order, no assistance from DOJ is required in cases where DHS is not a party.

Subpoenas are important legal documents that have to be dealt with in a timely manner. Failure to respond to a subpoena could result in legal action against the person to whom the subpoena was issued, or the agency for whom that person works. Therefore, the golden rule is: Never ignore a subpoena.

2 When this document refers to a subpoena, it includes subpoenas and subpoenas duces tecum, unless otherwise specified.

Page 4 of 80 Last updated: June 19, 2009 DEFINITIONS

Court Order A legal mandate issued by a judge requiring a person or entity to do something or face civil or criminal charges for contempt of court. In Camera Review The review of confidential documents by a judge, usually sent under seal, where the judge decides what documents should be released to the parties in a case. Motion for A legal document filed by an attorney with the court or an Protective Order administrative law judge requesting that should the Court or ALJ order the release of documents that it also order the persons to whom those documents are released to use them only for that particular proceeding and that the documents be destroyed or returned to DHS when the proceeding is over. Motion to Quash A legal document filed by an attorney with the court or an administrative law judge in response to the receipt of a subpoena asking the court or ALJ to quash – wipe out – the subpoena received. Motion to Quash A legal document filed by an attorney with the court or an and in the administrative law judge requesting that the court or ALJ quash Alternative for – wipe out – a subpoena, but if the court does not quash the Protective Order subpoena, requesting that a protective order be issued. Objection Letter or A letter sent to the attorney who issued the subpoena advising Letter of Objection the attorney that the person to whom the subpoena was issued cannot comply with it because, for example, a state or federal law prohibits the disclosure of the requested document. Proceedings Civil or criminal cases, administrative hearings, depositions or grand juries. Protective Order An order signed by a judge that limits the use of confidential documents disclosed in a proceeding. Under a protective order the persons to whom confidential documents are disclosed may only use the documents for the proceeding during which they are disclosed, must keep them otherwise confidential and must carefully dispose of them or return them to DHS when the proceeding is over. Redact Editing ("blacking out") a record to prevent viewing of material that is confidential. Service Providing or giving a subpoena to a person by either delivering it in person (personal service), by mail, or by fax, depending on the circumstances.

Page 5 of 80 Last updated: June 19, 2009 Subpoena A legal document requiring a person to show up at a deposition, court hearing, grand jury or administrative proceeding and testify about what he or she knows on a given subject. Subpoena Duces A legal document commanding a person to either show up at a Tecum deposition, court hearing, grand jury or administrative proceeding and bring certain documents described in the subpoena duces tecum, or stating that the person can provide the documents and if the documents are provided, no appearance is necessary. Under Seal Providing documents to the court in a sealed envelope bearing the case number and the words “Submitted for In Camera Review” with an outer envelope addressed to the court so that only a judge may view what is in the sealed envelope.

Page 6 of 80 Last updated: June 19, 2009 QUICK REFERENCE GUIDE

□ Send a copy of the subpoena to your program's subpoena coordinator.

□ If the subpoena is issued in a case to which DHS is a party, the matter should be referred to the DOJ attorney representing DHS.3

□ Make sure you know when the documents requested are due, or when you are required to give testimony.

□ If the subpoena has not been served at least 14 days before a response or testimony is due there may be a basis for objecting.

□ If the subpoena requests the release of records, determine:

o Whether you have the records. o Where the records are. o Whether you have a valid authorization for the release of records. o Whether the records are confidential and can't be disclosed without either an authorization to release or a court order.

□ Consider calling the person4 who issued the subpoena and trying to work things out, such as:

o Asking for more time to respond to the subpoena; or o Asking for an authorization for release of records.

□ Refer the matter to a DOJ attorney if a motion to quash needs to be filed.

□ If you are providing records, determine if you have to redact some information.

□ If you are testifying in court about records that cannot be released without a court order, make sure you have a court statement to read to the judge along with a copy of the appropriate records to give to the court if the court issues an order for you to release the records.

3 Remember that your division has a process for who can contact DOJ and under what circumstances. 4 If you talk to the party that issued the subpoena, ONLY talk about the process and DO NOT indicate whether or not DHS has the records that are requested.

Page 7 of 80 Last updated: June 19, 2009 SUBPOENAS

I. Who to Contact When a Subpoena Is Received

If you receive a subpoena in a case where DHS is a party5, the subpoena must be immediately forwarded to DOJ counsel representing DHS in the proceeding or the assistant attorney general (AAG) assigned to your program. If you do not know which AAG is assigned to your program, contact the Attorney-in-Charge of the Human Services and Education Section at DOJ, 503-947-4540, and you will be referred to the appropriate attorney.

DHS staff should never attempt to respond to a subpoena where DHS is a party to the case.

If you receive a subpoena in a proceeding where DHS is not a party, you should immediately contact the Agency Subpoena Coordinator (Coordinator) who will work with you in responding. See Appendix 1, Coordinator list.

II. Negotiating with the Party That Issued the Subpoena

One of the simplest things you can do when you get a subpoena is to call the person who issued it and see if you can work out any problems that the subpoena presents for you. Do you need more time to respond? If so, call and ask for more time. If the subpoena requests confidential information, call and educate the person who issued the subpoena about the applicable confidentiality laws. Perhaps the person will withdraw the subpoena because he or she believes that responding to a motion to quash is not worth the effort. Maybe the person who issued the subpoena can get a release of information to you that would permit you to release the records requested. If you reach an agreement with the person who issued the subpoena, document that carefully and request confirmation of the agreement in writing. Any form of writing is acceptable, i.e., e-mail.

Note: If you call or communicate with the person who issued the subpoena, remember that you should only discuss the process; you cannot tell them whether or not you have the records that are being requested.

5 You may be able to tell whether DHS is a party to a proceeding by looking at the caption in the upper left hand corner of the subpoena. For example, it could read: "DHS v. Smith." However, many proceedings to which DHS is a party have a caption that reads "In the Matter of Joe Smith." You can always ask DOJ if DHS is a party to a particular proceeding.

Page 8 of 80 Last updated: June 19, 2009 III. What to Pay Attention to When a Subpoena Is Received

A. How the Subpoena Was Served

You may be able to object to a subpoena that is not served properly. See Section V. However, objecting to a subpoena may only delay compliance with the subpoena because the person serving the subpoena can just reissue it and serve it properly.

B. Who the Subpoena Is To and Who It Is From

If a subpoena is addressed to the “DHS records custodian” without designation of any program, and seeks “any and all DHS records,” this is a request for all DHS records in all programs. The Coordinator should call the person that issued the subpoena, explain DHS is made up of many programs, each with its own confidentiality rules, and ask the person to specify from which program areas he or she intended to request records. If the person narrows the scope of records covered by the subpoena, the Coordinator should confirm that in writing with the person.

It is important to know who is asking for the records and why they want them. The subpoena will identify who sent it, an address and a phone number. The document will also include a caption that shows the court or administrative agency the case is being heard in, whether it is a civil or criminal case and who the parties are (except for grand jury subpoenas). From this information you may be able to tell whether the records being requested relate to one of the parties or not.

 Be sure to notice whether the State of Oregon or the Department of Human Services is named as a party in the caption. If so, do not respond or contact the person who sent the subpoena until after you have contacted your Coordinator and the DOJ attorney handling the case has been contacted.  If the person whose records are being requested is listed as one of the parties, you may be able to obtain an authorization for the release of information from the attorney who asked for the records.  Sometimes it is important to know why the records are being requested. For example, if a client is a food stamp client and the District Attorney is subpoenaing records as part of a food stamp fraud case that will affect how DHS can respond to the subpoena.  Sometimes the records are being requested because a client was involved in an accident or other personal injury. If so, it is important to immediately notify the DHS Personal Injury Unit for them to follow up.

C. Determine Whether DHS Has Any of the Records Requested

If DHS does not possess any of the records, or the records have been destroyed under normal retention schedules, then the agency should send a letter to the requesting

Page 9 of 80 Last updated: June 19, 2009 party advising him or her that DHS has no records responsive to the subpoena and request that the subpoena be withdrawn. Confirm withdrawal of the subpoena in writing.

If DHS does have the records, start gathering them and determine what can be released.

D. Determine Whether There Is an Authorization to Release the Information

If the subpoena was accompanied by an authorization that permits the release of the records requested or if the agency has an authorization that matches both the person asking and the documents requested, in most cases, the agency does not need to object to the subpoena and may disclose the records pursuant to the terms of the release or authorization. If there is no adequate authorization, or there are statutes and rules prohibiting release of certain records even with a signed release (for example child welfare abuse reports) then the agency must determine the appropriate response or objection to the subpoena. This may include suggesting to the person who sent the subpoena that he or she obtain a release or authorization.

Note: DHS records often contain the names of multiple clients. An authorization for release by one client does not entitle that client to obtain the records of the other clients mentioned in the same case file.

E. Determine If There Is a Basis for Objecting to the Subpoena

You may object to certain types of subpoenas because:

 The documents contain information pertaining to persons other than the requestor and redacting the documents could take days;  The volume of documents covered is huge and the time and cost to prepare them would be prohibitive; or  Because the records requested are confidential.

See Section V for more detailed information about objecting to subpoenas.

F. Determine Whether There Are Federal or State Laws that Prohibit the Release of the Requested Information or the Requested Testimony

If you do not have an authorization for the release of records or the records requested are confidential under state or federal law and cannot be released without a court order, you need to determine whether an objection can be filed or the matter should be referred to DOJ to file a motion to quash. You need to check with your Coordinator to determine whether you can release such records and which records can be released. Alternatively, if the subpoena requests records and testimony, you can prepare to read a

Page 10 of 80 Last updated: June 19, 2009 statement to the judge that explains that the records are confidential and cannot be released without a court order. See Appendix 5.

Note: There are programs within DHS that are delegated programs from the federal government to the state. The federal government may view the records held by DHS for these programs to be federal and not state records. You need to check with your Coordinator to determine whether you can release such records and which records can be released.

G. Determine Whether the Agency Has the Discretion to Disclose Records

If the applicable statutes and rules governing the records permit the agency to release records in its discretion (this is unlikely), then the agency needs to make a determination about how it will apply its discretion. Discretion must be exercised based on the facts presented. The agency should be prepared to explain that exercise of discretion to the court in a motion to quash, if a decision is made not to release the records.

IV. Service of Subpoenas

Note: This section describes the legal requirements, Under Oregon Rules of Criminal or Civil Procedure, Federal Rules of Criminal or Civil Procedure, or other state or federal laws, for the service of subpoenas. This section does not describe the manner in which DHS may receive the subpoena. While DOJ has advised DHS not to accept service by alternative methods, DHS has the discretion to do so. You should check with your Coordinator or supervisor about whether your program accepts subpoenas by fax or some other method.

A. Oregon Civil Subpoenas

A subpoena must be served in person, or in some circumstances described below, a subpoena may be served by mail. A witness is entitled to receive $30 for each day’s attendance as a witness and mileage reimbursement at the rate of 25 cents a mile if the person is required to travel from a place within or outside this state in order to perform duties as a witness.6 If the proceeding is one where a public body7 is a party, a person is entitled to receive $5 for each day’s attendance as a witness and mileage reimbursement at the rate of eight cents a mile if the person is required to travel from a place within or outside this state. Total mileage reimbursement shall not exceed the necessary cost of transportation on reasonably available common carriers.8

6 ORS 44.415. 7 “'Public body' means any state, city, county, school district, other political subdivision, municipal corporation, public corporation and any instrumentality thereof." ORS 44.415(3). 8 See 31 Op Atty Gen 96 (No. 5545), December 11, 1962 (witness fees for state employees).

Page 11 of 80 Last updated: June 19, 2009 Service by mail is permitted if:

 The subpoena commands the production of documents only, and not testimony;9 or  An attorney issuing the subpoena or his or her staff: o Has had personal telephone contact with the witness and the witness has indicated a willingness to appear at trial if subpoenaed; o Has made provision for payment of witness and mileage fees; and o Mailed the subpoena to the witness more than 10 days before trial by certified mail or other receipt type mail.10

DOJ does not recommend that employees agree to acceptance of service of subpoenas by mail, or by any alternate method. However, you should check with your Coordinator to see if your program has a different policy.

Note: The State of Oregon website has the following FAQ regarding witness fees paid to a state employee:

If I receive a subpoena, can I keep the money paid to me?

When an employee is not the plaintiff or defendant, he or she shall be granted leave with pay for appearance before a court, legislative committee, or judicial or quasi-judicial body as a witness in response to a subpoena or other direction by proper authority for matters other than the employee's officially assigned duties. When the employee is granted leave with pay, the employee shall turn into the Agency any money paid in connection with the appearance.

An employee shall be on Agency time for attendance in court in connection with an employee's officially assigned duties, including the time required going to court and returning to his/her official station. When the employee is granted Agency time, the employee shall turn into the Agency any money received for such attendance during duty hours.

http://www.oregon.gov/DHS/admin/accounting/pmr.shtml

If a subpoena is personally served, do not sign anything. Simply take the document from the process server and fax it or give it to your Coordinator.

9 Oregon Rules of Civil Procedure 55D(4). 10 Oregon Rules of Civil Procedure (ORCP) 55D(3).

Page 12 of 80 Last updated: June 19, 2009 B. Oregon Criminal Subpoenas (including grand jury)

Personal service is required. Witness and mileage fees will be paid after the fact upon showing of receipts for numbers of days of attendance and mileage covered.

C. Oregon Federal Subpoenas (criminal or civil)

The subpoena must be personally served and accompanied by witness and mileage fees for one day’s attendance. However, if the subpoena is issued by the US Government fees and mileage need not be tendered for the subpoena to be valid.11

However, a subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require that the victim get notice so that the victim can move to quash or modify the subpoena or otherwise object.12

D. Oregon Juvenile Proceeding Subpoenas

1. Dependency Cases

Methods of service include:

 Personal service;  Service by mail if: o The attorney mailing the subpoena certifies the attorney, or his or her agent, has had personal or telephone contact with the witness and the witness indicated a willingness to appear at trial if subpoenaed; or o The subpoena was mailed more than 5 days before trial by certified or other form of receipt mail and the witness signed for the mail; or o The subpoena is for the production of documents only, and not for testimony.13

Witness fees and mileage fees need not be paid in advance and may be paid after the fact.

2. Delinquency Cases

Personal service is required. Witness and mileage fees will be paid after the fact upon showing of receipts for numbers of days of attendance and mileage covered.

11 Federal Rules of Civil Procedure 45(b); Federal Rules of Criminal Procedure (FRCrP) 17(c)(3). 12 FRCrP 17(c)(2). 13 ORS 419B.902(1), (3) and (4).

Page 13 of 80 Last updated: June 19, 2009 E. Federal Criminal Court Subpoena from Another Jurisdiction (including grand jury)

Personal service is required along with one day’s witness-attendance fee and the legal mileage allowance. No witness or mileage fees will be tendered if the subpoena is issued by the United States government.

However, a subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order, unless there are exceptional circumstances, the court must require giving notice to the victim so that the victim can move to quash or modify the subpoena or otherwise object.14

V. Objecting to a Subpoena

The information below only applies to cases where DHS is not a party and there are confidentiality laws that prohibit DHS from providing testimony or records. What follows are the general rules for when you can file a letter of objection and an explanation of the effect of that letter.

Before sending a letter of objection, you may wish to contact the attorney who issued the subpoena and explain the confidentiality laws, that DOJ may have to file a motion to quash, and that you cannot comply with the subpoena without a court order. The attorney may decide to withdraw the subpoena. If this is the case, you should ask for the withdrawal in writing.

In this section, we advise you to contact DOJ to file a motion to quash if there is not a basis for objecting to a subpoena or the person issuing the subpoena does not withdraw the subpoena. While not recommended by DOJ, if DHS does not wish to contact DOJ about filing a motion to quash, you can appear in court, read a court statement about the confidentiality of the records requested, and wait to see if the court orders you to release records or testify. See Appendix 5.

A. Oregon State Civil Proceedings

The following applies to:

(1) An Oregon civil subpoena for testimony only; or (2) An Oregon civil subpoena for testimony and records that does not say "in lieu of an appearance you may mail the records to . . . " If there is sufficient time, DHS may send a letter of objection to the issuing attorney advising the attorney of the state and federal confidentiality laws applicable to the program and of the agency’s inability to comply with the subpoena because of those confidentiality laws. In addition to advising the issuing attorney of the laws pertaining to

14 FRCrP 17(c)(2).

Page 14 of 80 Last updated: June 19, 2009 the agency program, the letter should also request that the issuing attorney withdraw the subpoena.

Caveat: DHS' letter has no legal force or authority and if the issuing attorney does not withdraw the subpoena at least one week prior to the due date for compliance with the subpoena then DHS should: (1) Ask the AAG assigned to program to file a motion to quash; or (2) Be prepared to have the person responding to the subpoena read a statement in court explaining to the judge that the information requested cannot be released without a court order. See court statements, Appendix 5.

The following applies to:

(1) An Oregon civil subpoena for records only; or (2) An Oregon civil subpoena that says, “in lieu of appearance the agency may send the records to…”

DHS may send a letter to the issuing attorney advising the attorney that the State objects to the subpoena and setting forth the state and federal confidentiality laws applicable to the program. The letter should further advise that pursuant to those confidentiality statutes the agency is unable to comply with the subpoena. The letter must also request that the issuing attorney withdraw the subpoena.

Note: The agency’s objection letter must be faxed or mailed to the issuing attorney within 14 days after service of the subpoena or before the time specified for compliance with the subpoena, if such time is less than 14 days after service.

After DHS' letter is sent, the attorney that issued the subpoena must file a Motion to Compel Compliance with Subpoena if he or she wishes to pursue disclosure of the records. If you receive such a motion, contact the AAG assigned to your program. Disclosure of records, if any, will occur only if the court rules in favor of the issuing attorney.

If a subpoena issued in a civil case requests records that fall within the definition of "individually identifiable health information"15 the person issuing the subpoena must:

 Provide you with a qualified protective order; or

15 "'Individually identifiable health information' means information which identifies an individual or which could be used to identify an individual; which has been collected from an individual and created or received by a health care provider, health plan, employer, or health care clearinghouse; and which relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual." ORCP 55H(1)(a).

Page 15 of 80 Last updated: June 19, 2009  An affidavit or declaration together with supporting documentation demonstrating that: o The person made a good faith attempt to provide written notice to the individual and the individual had 14 days to object; o The notice included the proposed subpoena and enough information about the case in which the information is requested to permit the individual to object; o That no objections were made or objections were made but were resolved and the information being sought is consistent with this resolution; and o That the individual will be given a right to inspect the records, if such a request is made.

If the subpoena does not comply with these requirements, the individually identifiable health information does not have to be disclosed. If you do not plan on responding to the subpoena in reliance on this rule, you should send a letter to the person who sent the subpoena, informing him or her of that fact.

B. Oregon Juvenile Proceedings

1. Dependency16 Cases

Note: DHS, Children, Adult and Families Section (CAF) has a child welfare procedures manual that covers issues related to confidentiality. That manual can be found at: http://www.dhs.state.or.us/caf/safety_model/procedure_manual/index.htm. See Chapter 1, Overview, Section 4, Confidentiality.

The following applies to:

(1) A subpoena for testimony only; or (2) A subpoena for testimony and records that does not state "in lieu of appearance you may send the records to . . . "

An objection letter has no legal force or effect but if there is sufficient time, the Coordinator may contact or send a letter to the issuing attorney advising the issuing attorney of the state and federal confidentiality laws applicable to the program and of the agency’s inability to comply with the subpoena because of those confidentiality laws. The letter, in addition to advising the issuing attorney of the laws pertaining to the agency program, should also request that the issuing attorney withdraw the subpoena.

16 A dependency case is a case where a child is in state custody, or subject to the jurisdiction of the state.

Page 16 of 80 Last updated: June 19, 2009 Caveat: Again, DHS' letter has no legal force or effect. If the issuing attorney does not withdraw the subpoena at least one week prior to the due date for compliance with the subpoena, then DHS should contact the AAG assigned to the program and advise the AAG of the status of the subpoena and request that a motion to quash be filed. Alternatively, DHS should be prepared to read a statement to the judge explaining that the information requested is confidential and cannot be released without a court order.

The following applies to:

(1) A subpoena for records only; or (2) A subpoena that states, “in lieu of appearance the agency may send the records to…”

The Coordinator may send a letter to the person who sent the subpoena, advising that DHS objects to the subpoena and the basis for the objection (i.e. confidentiality laws applicable to the program). The letter should further advise that based on those confidentiality laws DHS is unable to comply with the subpoena. The letter must also request that the person withdraw the subpoena.

Note: The objection letter must be faxed or mailed to the issuing attorney within 14 days after service of the subpoena or before the time specified for compliance with the subpoena, if such time is less than 14 days after service.

The person who sent the subpoena must file a Motion to Compel Production if he or she wishes to pursue disclosure of the records; a judge will rule on whether the records must be released.17

2. Delinquency Cases18

An objection letter has no legal force or effect in juvenile court delinquency proceedings and is not a sufficient means of objecting to a subpoena. Unless the issuing attorney withdraws the subpoena at least one week prior to the date for subpoena compliance, it will be necessary for DHS to ask the AAG assigned to the program to file a Motion to Quash.19 If the subpoena involves a demand for records, the AAG may ask the court, in the alternative, for an in camera review and a protective order.20

17 ORS 419B.896. 18 A delinquency case is a case where a child has engaged in criminal conduct. 19 ORS 135.873. 20 ORS 135.873, 136.580.

Page 17 of 80 Last updated: June 19, 2009 C. Oregon State and Federal Criminal Proceedings (including grand jury)

An objection letter has no legal force or effect in criminal court and is not a sufficient means of objecting to a subpoena. Unless the issuing attorney withdraws the subpoena at least one week prior to the date for subpoena compliance, it will be necessary for the agency to request that the AAG assigned to your program file a Motion to Quash. ORS 135.873.

If the subpoena involves a demand for records, the AAG may ask the court, in the alternative, for an in camera review and a protective order.21

D. Oregon Federal Civil Cases

The following applies to:

(1) A federal civil court subpoena for testimony; or (2) A federal civil court subpoena for testimony that does not state, "in lieu of appearance you can send records to . . . "

Contact the assigned AAG and ask for assistance. While DHS may send a letter of objection, it carries no legal force or effect. If the issuing attorney does not withdraw the subpoena by at least one week prior to the date for compliance with the subpoena, DOJ will need to file a motion to quash on behalf of DHS.

The following applies to:

(1) An Oregon federal civil court subpoena for records only or; (2) An Oregon federal civil court subpoena that states, “in lieu of appearance you may send the records to . . . ”

If DHS is not commanded to appear, or the subpoena says on its face, “in lieu of appearance you may send the records to,” the agency may send the issuing attorney a letter of objection. The letter should state that the agency is objecting to the subpoena and then set forth the statutes and rules that require the objection. The letter must also request that the issuing attorney withdraw the subpoena.

Note: This objection letter must be faxed or mailed to the attorney within 14 days after service or before the time specified in the subpoena for compliance, if such time is less than 14 days after service.

Once objection is made, the attorney who issued the subpoena must file a Motion to Compel Compliance with Subpoena and the court must find in the issuing attorney’s favor before disclosure must be made.

21 ORS 135.873, 136.580.

Page 18 of 80 Last updated: June 19, 2009

E. Subpoenas from Outside Oregon

You should contact the AAG assigned to the program and ask for assistance.

VI. Subpoenas Issued to DHS Contractors

DHS does not respond to subpoenas issued to its contractors. The contractors must obtain their own counsel, if they do not have in-house counsel or counsel on retainer. If the contractor advises DHS that its counsel is unsure how to proceed in responding to a DHS client-related subpoena, then DHS may refer the contractor’s counsel to the appropriate AAG assigned to the DHS program. DHS may request that the AAG discuss with the contractor’s counsel the legal issues involved in providing testimony or evidence.

VII. Subpoenas Issued by Another Oregon Agency to DHS

It is quite common for DHS to receive subpoenas from other state agencies. For example, the Oregon State Hospital (OSH) might receive a subpoena from the Oregon Medical Board requesting a doctor or nurse’s personnel file or a patient’s medical file.

While the Coordinator may take initial steps to contact the other agency to see if it is willing to withdraw the subpoena, it is recommended that DHS involve its AAG at the earliest possible time for DOJ’s interpretation of the relevant law and instructions on how to proceed.

VIII. Subpoenas Issued in Administrative Cases

Note: Remember that if DHS is a party to an administrative case, this manual and these rules do not apply and you should work with the AAG assigned to the case. As always, you should ensure that you are going through the proper channels in contacting DOJ.

All agencies subject to the Administrative Procedures Act (APA) may issue subpoenas in a contested case proceeding.22 The fact that a subpoena is issued in an administrative case, rather than court case, should have little impact on how DHS responds. DHS may try an initial objection letter, but should assume that the letter carries no legal weight.

22 ORS 183.440.

Page 19 of 80 Last updated: June 19, 2009  Service of Administrative Subpoenas: An administrative subpoena should be either served personally on the witness or it should be sent by certified or registered mail, restricted delivery.23  Witness and Mileage Fees. A witness appearing pursuant to subpoena, other than a party or officer or employee of the agency, is to receive a fee and mileage costs prescribed by law. ORS 183.440(1). Currently fees are $5 per day and 8 cents per mile for travel to and from the place of the hearing, deposition or other proceeding.  Letters of objection and motions to quash. DOJ, on behalf of the agency or party, may file a motion to quash a subpoena with the ALJ.24

IX. Subpoena Received Too Late for DHS or DOJ to Respond

If DHS receives a subpoena less than 48 hours prior to the time for compliance and confidentiality laws prohibit the release of records or testimony, you should get the subpoena immediately to your Coordinator; consider faxing the subpoena immediately to DOJ. You can also call the person who issued the subpoena and see if it is possible to get more time to respond. If the subpoena is for testimony in court, the person to whom the subpoena was issued must be prepared to appear in court and advise the judge of the confidentiality laws that prohibit disclosure. Appendix 5 contains prepared statements, organized by program, which can be read to the judge. You should be prepared to hand the court clerk or judge the list of applicable confidentiality statements and you may, prior to going to court, highlight the laws most applicable to the kind of records requested. After reading the statement the judge will either order the witness to testify or release records, will order an in camera review of the records, or will state that the witness does not need to testify or release the records.

If the subpoena is a grand jury subpoena or a subpoena for a deposition where a judge will not be present, the person to whom the subpoena was issued must attend the grand jury proceeding and advise those conducting the proceeding that it is the agency’s position that, absent consent of the client, the requested records and testimony about the requested records or the information they contain are privileged and confidential pursuant to state (and federal if appropriate) law and that the agency is unable to either disclose the records or testify about them. The agency representative should request of the Grand Jury foreperson or attorneys taking the deposition that the matter be continued to another day to allow the agency to be represented by counsel in objecting to the subpoena issued

23 Oregon Attorney General’s Administrative Law Manual (2008) at page 113 - 114. Normally for service by mail to be effective the witness must have previously agreed to appear if subpoenaed, arrangements must have been made for payment of witness and mileage fees, the subpoena must have been mailed to the witness more than 10 days before the hearing, deposition or other proceeding. This is because the Oregon Rules of Civil Procedure, while not applicable to administrative subpoenas, are instructive. Agencies and parties are advised to follow the ORCP on subpoenas because agency subpoenas are enforced in circuit court pursuant to ORS 183.440(2). Thus an administrative subpoena which is not served in the manner above may be challenged on that basis, although the probability of success will depend upon the underlying facts of both the case and the service of the subpoena. 24 Oregon Attorney General’s Administrative Law Manual (2009) at pages 113 – 114.

Page 20 of 80 Last updated: June 19, 2009 in the proceeding, or ask that a judge be located to rule on the issue. If this is refused, ask for access to a telephone to call the Department of Justice and ask for legal advice. Do not testify until you have been provided the opportunity to talk to legal counsel. Call 503-947-4540, which is the Salem office of the Department of Justice, General Counsel Division, or 971-673-1880, which is the Portland office, and ask to talk to one of the attorneys who represent the Department of Human Services.

Page 21 of 80 Last updated: June 19, 2009 COURT ORDERS

I. What to Do When You Receive a Court Order to Release Records

If you receive a court order you should contact the Coordinator immediately; the Coordinator will contact the AAG assigned to your program as necessary. NEVER IGNORE A COURT ORDER. Failure to respond to a court order could subject you or the agency to civil or criminal contempt of court.

If you think DHS will be unable to comply with the court order by the date set in the order, you should immediately contact the AAG assigned to your program and advise him or her of this problem. The AAG will work with the parties and the court to try to obtain an extension of time in which to comply with the order.

If you have concerns about whether the order, as written, adequately protects the agency, the AAG assigned to your program should be contacted immediately. The AAG, if he or she agrees with your concerns, may then attempt to obtain a stay of the order or take some other action so that DHS' concerns may be addressed.

II. Redacting25

If DHS is responding to an order to disclose records, and the order says nothing about redacting material, then the agency may not redact material from the documents. If the order directs DHS to produce all records pertaining to a certain client, and that client's records contain information about other people that is confidential, either contact your Coordinator, who should contact the AAG assigned to your program, or directly contact the AAG assigned to your program. Each Division within DHS has a process in place to authorize consultation with its AAG. Before requesting AAG consultation, please be aware that staff are expected to seek approval from their Division's designated authority.

If DHS is responding to a court order for disclosure and the order permits the redacting of certain information, then DHS may redact that information.

As always, if you have concerns about complying with an order, you should contact the AAG assigned to your program. Each Division within DHS has a process in place to authorize consultation with its AAG. Before requesting AAG consultation, please be aware that staff are expected to seek approval from their Division's designated authority.

When redacting, make a copy of the records, black out any information that is confidential or that could lead to the identification of confidential information, and make a copy of the redacted documents. Type that is blacked out with a pen can often be seen

25 Redacting means to "black out" certain information in a document because that information is confidential.

Page 22 of 80 Last updated: June 19, 2009 unless an additional copy is made. Be sure to keep a copy of the records that were redacted and disclosed. In addition, make sure you have the originals. You will need to explain, in a cover letter, the type of information that was redacted and the legal basis for not disclosing the information.

III. Responding to Oregon Court Orders

Upon receipt of a court order you should immediately fax or give the order to your Coordinator and request review and guidance. The Coordinator should review the order and, if concerned about its adequacy to protect the agency, contact the AAG assigned to your program. If the AAG is concerned about the order, he or she may consider filing a motion requesting a stay of the order pending review by the court of DHS’ concerns. If the Coordinator believes the court order is valid and there are no concerns, the documents should be gathered in accordance with the procedures outlined below.

IV. Preparing Documents in Response to a Court Order

A. Order for Disclosure to a Party

If ordered to disclose records to a party you should:

 Copy the relevant documents.  Place the documents in an envelope or box.  Place a copy of the court order on top of the documents in the box.  Place a copy of the Declaration of Records Custodian26 on top of the documents in the envelope or box.  Seal the envelope or box and mail to the party designated by the court.  Record in the client file and in the Agency HIPAA accounting records the disclosure of the client’s records, if the records include medical records.

B. Order for In Camera Review

An order for in camera review is a process through which a judge may review confidential materials outside of the presence of the parties and their counsel. The purpose of this confidential review is to allow the judge to determine whether any of the requested documents are relevant to the case pending before the judge and whether that relevance is enough to outweigh the state and federal confidentiality laws. In camera review proceedings may occur as the result of DHS filing a motion to quash or in the

26 See Appendix 4.

Page 23 of 80 Last updated: June 19, 2009 alternative for in camera review, or another party filing a motion for in camera review and the judge granting in camera review.

If ordered to submit records for in camera review by the judge, DHS should:

 Copy the relevant documents.  Place the documents in an envelope or box and seal it.  Place a copy of the Declaration of Records Custodian27 and the In Camera Review Letter,28 if applicable, on top of the documents in the envelope or box.  Place a copy of the motion to quash on top of the documents in the box, if applicable.  Place a copy of the court order for in camera review on top in the envelope or box.  Seal the envelope or box with tape.  Mark the envelope or box with the court case name, court case number, name of agency/witness and subpoena date if submission is in relation to a subpoena and print in large capital letters “FOR IN CAMERA REVIEW”.  Attach a copy of the motion to quash or order for in camera review to the envelope or box.  Place envelope or box inside of mailing envelope.  Address outer mailing envelope or box as requested by the court.  Record in the client file and in the Agency HIPAA accounting records the disclosure of the client’s records, if the records include medical records.

V. Court Orders Issued to DHS Contractors

DHS does not respond to court orders issued to its contractors. The contractors must obtain their own counsel if they do not have in-house counsel or counsel on retainer. If the contractor advises DHS that its counsel is unsure how to proceed in responding to a DHS client-related court order, then DHS may refer the contractor’s counsel to the appropriate AAG assigned to the DHS program. DHS may request that the AAG discuss with the contractor’s counsel the legal issues involved in providing testimony or evidence.

27 See Appendix 4. 28 See Appendix 3.

Page 24 of 80 Last updated: June 19, 2009 VI. Oregon Administrative Orders

Upon receipt of an Oregon administrative order, contact the AAG assigned to your program and request assistance in determining how to respond to the order. Each Division within DHS has a process in place to authorize consultation with its AAG. Before requesting AAG consultation, please be aware that staff are expected to seek approval from their Division's designated authority.

VII. Federal Administrative Orders and Administrative Orders from Other States.

Federal agency administrative authority varies widely. Therefore, it is recommended that you contact the AAG assigned to your program and request assistance in determining how to respond to the order. Each Division within DHS has a process in place to authorize consultation with its AAG. Before requesting AAG consultation, please be aware that staff are expected to seek approval from their Division's designated authority.

Most likely, an administrative order from another state is not valid in Oregon. However, it is recommended that you contact the AAG assigned to your program and request assistance in determining how to respond to the order.

VIII. Court Order for Disclosure of Drug and Alcohol Records

A court order for the disclosure of drug or alcohol records is not valid unless a subpoena has also been issued.29 An application may be made with a court for a court order to authorize disclosure of drug or alcohol records. Such an application must comply with the following: (1) A fictitious name must be used and the application may not contain any identifying information; (2) Notice must be given to the person whose records are being sought and to the person holding the records; and (3) An opportunity to file an objection or to appear in person must be given.30

If the court holds a hearing, it must be in the judge's chambers so that identifying information is only shared with the parties, the person whose records are sought, and the person holding the records.31 A court order may be entered only if the court determines that good cause exists and that: (1) Other ways of obtaining the information are not available or would not be effective; and (2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.32 Finally, the court order must: (1) Limit the disclose to that information which is essential to fulfill the objectives; (2) Limit disclosure to those

29 42 CFR 2.61(a). 30 42 CFR 2.64(a) and (b). 31 42 CFR 2.64(c). 32 42 CFR 2.64(d).

Page 25 of 80 Last updated: June 19, 2009 persons who need the information; and (3) Include other measures to limit disclosure and protect the patient, such as sealing the records.33

Given the strict requirements under federal law for the release of drug and alcohol information, if the subpoena commands the release of drugs and alcohol information or testimony about such records, we advise DHS to avoid sending an employee to court to read the confidentiality statement.34 Instead, we strongly advise that DOJ be contacted and a motion to quash be filed.

IX. Responding to an Oral ‘Court Order’

If you intend to appear in court and read a confidentiality statement, you are supposed to wait for the judge to order you to testify or disclose records. The judge might say "I order you to testify" or "I order you to release the records," but the judge might also say "go ahead and answer the questions." This, in essence, is a court order and you should comply with the judge's directions. You do not need to wait for something in writing from the judge.

33 42 CFR 2.64(e). 34 It is possible for a court to authorize disclosure of confidential communications made by a patient to a drug or alcohol program without going through the process above, but only if: (1) Disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including suspected child abuse and neglect, and verbal threats against third parties; or (2) Disclosure is necessary for investigation or prosecution of an extremely serious crime; or (3) Disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications. 42 CFR 2.63.

Page 26 of 80 Last updated: June 19, 2009 APPENDIX 1 DHS Privacy Coordinators by program DHS Agency Subpoena Coordinators by program35

Program Privacy Coordinator Program Subpoena Coordinator Privacy Officer Department Jane Alm None of Human Services 503-947-5255

AS/Facilities Facilities no longer represented on the Committee

CAF Field Services Melanie Tavernier Caroline Burnell Self-Sufficiency Program 503-945-6952 503-945-6640

CAF Field Services Caroline Burnell Local field staff handle Child Welfare 503-945-6400

CAF Office of Vocational Sherri Rita Mark Mastoff Rehabilitation Services 503-945-6695 503-945-6253 (OVRS)

DO/Human Resources Human Resources no longer represented on the Committee

Governor’s Advocacy Office Sherri Yoakum None listed 503-945-6452

Addictions and Mental Diane Duncan Diane Duncan Health 503-945-6083 503-945-6083

DMAP Kristine Kersine Sandra Bates 503-947-5489 503-945-5769

Public Health Steve Modesitt, R.N. MPH Brittany Sande 503-872-6741 971-673-1291

35 The coordinator list will be kept updated by the Privacy Program. Be sure to check online for the most current coordinator list.

Page 27 of 80 Last updated: June 19, 2009 State Hospitals o Blue Mountain Joni DeTrant Bonnie Wasson Recovery Center 503-945-2981 541-276-0810 x372 Candace Copeland 514-276-0810 x371

o Oregon State Hospital, Joni DeTrant Pam Palke Salem 503-945-2981 503-945-2852 Joni DeTrant 503-945-2981

o Oregon State Hospital, Joni DeTrant Pam Palke Portland 503-945-2981 503-945-2852 Joni DeTrant* 503-945-2981 *PWS: Kathleen Forrest (FES only) 503-945-9276

SPD Seniors Donna Weaver Valerie Eames 503-945-5977 503-945-5584 Patricia Johnson 503-947-4245 Brenda Adams 503-945-6397

SPD Developmental Marilee Bell Patricia Johnson Disabilities 503-947-5262 503-947-4245 Brenda Adams 503-945-6397 Eva Kutas 503-945-9491

Page 28 of 80 Last updated: June 19, 2009

APPENDIX 2 SAMPLE OBJECTION LETTERS

Page 29 of 80 Last updated: June 19, 2009

[Date]

[Address]

Re: Subpoena for Records

Dear ______:

I am the subpoena coordinator for the Department of Human Services, Seniors and People with Disabilities (SPD). I have received a copy of your subpoena in the above-entitled matter requesting information pertaining to the identity of witnesses referenced in two complaint narratives, ______and ______. Please consider this letter as a formal objection to your subpoena.

First, under the nursing facility statutes and elder abuse laws, a list of witness names, as well as the identity of the alleged victim is confidential and not available for public inspection. ORS 441.671 and 124.090. Moreover, SPD is required to redact the names of complainants and witnesses in a nursing facility abuse investigation report before making the report public. “The names of the resident involved, the complainant, and any individuals interviewed by the investigator shall be deleted from the copies.” ORS 441.650(7). Because SPD is prohibited by state law from releasing the witness list, the information you seek is confidential and exempt from disclosure under the public records statute. ORS 192.502(8).

Second, this information is protected under ______and may not be disclosed without the consent of that person or a court order.

Therefore, the Department will not release the requested information.

If you seek a court order for the release of records, please provide me with advance notice of the date and time of any hearing.

Sincerely,

*

Page 30 of 80 Last updated: June 19, 2009

[Date]

VIA FACSIMILE and U.S. MAIL

[Address] Re:

Dear ______:

This letter is written confirmation of my telephone and email message to you of [date]. I am the subpoena coordinator for the Department of Human Services (DHS), [name of division, program]. DHS received your subpoena in regard to the above entitled matter. DHS is unable to comply with your subpoena for the reasons stated below.

Public assistance records are confidential under federal and state law. DHS is prohibited from disclosing the existence or content of public assistance records, without the consent of the client, unless the purpose of the release is directly connected with the administration of a pubic assistance program or a court orders disclosure. See, e.g., 42 USC § 1396a(a)(7); 42 CFR §§ 431.300 et seq; ORS 411.320; and ORS 192.502(2), (8), and (9). Criminal penalties may result from the violation of these confidentiality mandates. ORS 411.990. Furthermore, a public official cannot be examined as to the public records determined to be privileged and exempt from disclosure. ORS 40.270.

Your case appears to be a civil matter not directly related to the administration of a public assistance program. DHS cannot disclose the requested records unless the client consents to such disclosure or a Court of competent jurisdiction orders DHS to make such a disclosure. DHS hereby objects to provision of the records requested in the subpoena.

Enclosed for your convenience is a copy of a blank DHS Form 2099, Authorization for Use & Disclosure of Information. If you are able to obtain a signed release, please return the original to me. Thank you for your understanding of the confidentiality mandates under which DHS operates.

Sincerely,

*

Enclosures c: *

Page 31 of 80 Last updated: June 19, 2009

[Date]

VIA FACSIMILE

[Address]

Re:

Dear ______:

This letter is to confirm my telephone call to you of today in regard to the Grand Jury Subpoena Duces Tecum issued to the Department of Human Services (DHS) for Oregon Trail Card records. As I explained, DHS is prohibited by federal and state law from disclosing the existence and contents of public assistance records without a release from the client or a court order commanding DHS to produce the records.

DHS must comply with state and federal law applicable to the food stamp program. ORS 411.837. Federal and state public assistance laws protect the confidentiality of information pertaining to food stamp applicants and recipients. While there are a limited number of exceptions to the confidentiality mandates, there is no exception for grand jury subpoenas. Under 7 USC § 2020(e)(8), the State of Oregon must provide “safeguards which limit the use or disclosure of information from applicant households [of the Food Stamp Program] to persons directly connected with the administration or enforcement of the provisions of this chapter.” See also 7 CFR 272.1(c). Oregon has passed several statutes to ensure the confidentiality of public assistance records, including food stamp records. ORS 411.320(1) provides that “the Department of Human Services shall not disclose or use the contents of public assistance records. * * * In any judicial or administrative proceeding, except proceedings directly connected with the administration of public assistance or child support enforcement laws, their contents are considered privileged communications.” (Emphasis added.)

Without an authorization from the public assistance applicant or recipient, DHS may disclose public assistance information in a judicial proceeding only if the purpose of the proceeding is directly connected to the administration of a public assistance program or the court orders disclosure. OAR 461-105-0110 (6). The law imposes criminal sanctions for improperly disclosing information regarding a food stamps applicant or recipient. ORS 411.990 (violation of ORS 411.320 is punishable by a fine of not more than $1000, or imprisonment for not more than 60 days, or both). Please note that DHS may disclose the address, social security number, and photograph of a public assistance applicant or recipient to a law enforcement official if the officer provides the name of the applicant and makes specific allegations about the individual. ORS 411.320(3).

Page 32 of 80 Last updated: June 19, 2009 I understand that you have withdrawn the subpoena and are seeking a court order. For your convenience, I have enclosed a copy of a court order that the Oregon Department of Justice has drafted in similar cases. If a judge orders disclosure, please send a copy of the order to me, and I will ensure that DHS provides the responsive documents. Thank you for your understanding of the confidentiality mandates under which DHS operates.

Sincerely,

*

Enclosure c: *

Page 33 of 80 Last updated: June 19, 2009

[Date]

[Name] Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301

Re: Matter of [Name].

Dear [Name]:

The Office of Vocational Rehabilitation Services (OVRS) received your [date] subpoena compelling witness testimony and requesting client file information regarding the above-referenced matter.

While the named witness, ------, will appear as directed on [date] at 9:00 am, please be advised that OVRS objects to the request for client records. Any subpoena for the release of OVRS client records must be directed to Salem to the Administrator of OVRS, who is the official custodian of all client records for OVRS. (OAR 582-030- 0025(1)). The OVRS Administrator, ______, is located at 500 Summer Street NE E-87, Salem Oregon 97301-1120.

Furthermore, before you proceed further regarding OVRS records, please be aware that OVRS does not possess a current written authorization to release any records or file information to you. In this situation, confidentiality policy imposed by state law, including ORS 344.600, and federal regulation requires OVRS to invoke public officer privilege under ORS 40.270 -- Evidence Rule 509, with respect to the release of client information or provision of testimony not requested or authorized by the client or the client's representative.

I may be reached by email at ______or by telephone at ______.

Very truly yours,

* OVRS Dispute Resolution Coordinator

Page 34 of 80 Last updated: June 19, 2009

[Date]

[Name] Attorney at Law [Address]

Re: Written Objections to Subpoena: [Case caption and case number].

Dear [Name]:

The Office of Vocational Rehabilitation Services (OVRS) objects to the subpoena addressed to Custodian of Records, Washington County Vocational Rehabilitation Services, 10777 SW Cascade Blvd. Tigard, OR 97223.

ORCP 55D(1) states that a subpoena shall not require production less than 14 days from the date of service upon the person required to produce and permit inspection, unless the court orders a shorter period. Your subpoena is dated ______and this office received the subpoena today,______. Production of the requested documents is expected on ______. Furthermore, any subpoena for the release of an OVRS client record must be directed to Salem to the Administrator of OVRS, who is the official custodian of all client records for OVRS. OAR 582-030-0025(1). The OVRS Administrator, ______, is located at 500 Summer Street NE E-87, Salem Oregon 97301-1120.

Please be advised that due to its closure date in early 2004, the client’s file at issue is archived. Retrieving archived files may take four to five days from the date of request by the branch office.

Your payment of $37.50 will be returned to your offices under separate cover.

I may be contacted by telephone at ______and by email at______.

Very truly yours,

______OVRS Dispute Resolution Coordinator

cc: [Name], AAG, DOJ

Page 35 of 80 Last updated: June 19, 2009

[Date]

[Name] Assistant Attorney General Department of Justice Justice Building Family Law Section 1162 Court Street NE Salem, OR 97301-4096

Re: Written Objections to Subpoena Duces Tecum for IN THE MATTER Of . . . .

Dear [Name];

The Office of Vocational Rehabilitation Services (OVRS) objects to the subpoena duces tecum addressed to Custodian of Records, Office of Vocational Rehabilitation Services, 1701 Liberty Street SE, Salem, OR 97302-5158 and dated ______.

This subpoena is void because any subpoena for the release of an OVRS client record must be directed to Salem to the Administrator of OVRS, who is the official custodian of all client records for OVRS. (OAR 582-030-0025(1)). The OVRS Administrator, ______, is located at 500 Summer Street NE E-87, Salem Oregon 97301-1120.

Before you proceed further regarding OVRS records, please be aware that OVRS does not possess a current written authorization from ------to release any records or file information to you. In this situation, confidentiality policy imposed by state law, including ORS 344.600, and federal regulation requires OVRS to invoke public officer privilege under ORS 40.270 -- Evidence Rule 509, with respect to the release of client information or provision of testimony not requested or authorized by the client or the client's representative.

You may contact me about this matter, if necessary by telephone at ______or by email at ______.

Very truly yours,

______OVRS Dispute Resolution Coordinator

cc: File

Page 36 of 80 Last updated: June 19, 2009 [Date]

[Address]

RE:

Dear:

I am writing concerning the Subpoena Duces Tecum issued on ______requesting ______. This letter serves as the Department of Human Services (DHS) objection to the subpoena duces tecum, pursuant to ORCP 55B.

To the extent that we may have such records, the Department of Human Services (DHS) is prohibited by federal and state laws and administrative rules from disclosing client records without the consent of the client, unless the matter is directly related to the administration of the Department’s programs or a court order. Without a client’s authorization, DHS may not disclose public assistance or medical information unless the matter is directly connected with the administration of public assistance programs or medical assistance programs, or a court orders disclosure. See, for example, federal law - 7 USC § 2020 (e)(8), 7 CFR 272.1(c ) Food Stamp Program; 42 USC §§ 602(a)(1)(A)(iv) Temporary Assistance for Needy Families; 42 USC § 1396a(a)(7), 42 CFR §§ 431.300 et seq. Medical Assistance Programs; 45 CFR §§ 160 and 164 et seq. Health Insurance Portability and Accountability Act. See, for example, state laws - ORS 192.502(2), (8) and (9) Public Records Law; ORS 192.518, et seq., OAR 410-01-0000 et seq. Protected Health Information; ORS 411.320 and ORS 418.130, OAR 461-105-0050 to 0140 Public Assistance and Medical Assistance. Criminal penalties may result from violation of these confidentiality mandates. 42 USC §1320d; Public Law 104-191 §264, August 21, 1995; ORS 411.990 and 418.990. Furthermore, a public official cannot be examined as to public records determined to be privileged or exempt from disclosure. ORS 40.270.

In addition to requesting privileged and confidential records, Defendant’s subpoena duces tecum does not allow the DHS Self-Sufficiency Program a reasonable time to respond. The subpoena was served on ______and requires production on ______. ______days is not a reasonable time for Self- Sufficiency to produce the responsive records. Self-Sufficiency records are often kept in multiple locations; it takes several days to gather the responsive records. In addition, Self-Sufficiency records are often multi-personal and contain personal information about individuals other than the person whose records are requested by the subpoena. Self- Sufficiency must have a reasonable time to review the responsive records and redact information about other persons as necessary.

It is my understanding that your case does not involve the administration of public assistance or medical assistance programs. DHS requires presentation either of a release signed by the client permitting disclosure of client information in this matter, or a court order requiring DHS to provide records.

Page 37 of 80 Last updated: June 19, 2009 Therefore, I request that DHS be released from the command of the Subpoena, unless you are able to provide us with the signed release of authorization (2099) form. For your convenience, I am enclosing a copy of the form. If we do not receive the signed consent forms or an appropriate judge’s order, I will take that to mean that you have released us of this command. If you have any questions, please feel free to give me a call. My telephone number is______. My fax number is______. Thank you for understanding our situation.

Sincerely,

______Tort Liability and Legislative Coordinator Department of Human Services Children, Adults & Families

Page 38 of 80 Last updated: June 19, 2009

Appendix 3: In Camera Review Letter to Court

Page 39 of 80 Last updated: June 19, 2009 [Insert Title, name, and address of judge]

Re: [Insert case name]

The enclosed documents are the property of the Department of Human Services (DHS), Oregon State Hospital (OSH) and are hereby submitted to the Court for in camera review. The enclosure is a certified true copy of the original file kept and maintained at OSH. These files are produced pursuant to a subpoena issued in this matter/the Court’s order in this matter dated ___(date of order)___. In submitting these records for in camera review, the OSH does not waive the confidentiality or the privilege that applies to the information found in its files.

The OSH maintains that the contents of its files are confidential and privileged, and may be disclosed only in specific circumstances. Specifically, as relevant here, file contents may only be disclosed pursuant to a valid consent or a valid court order. Federal and state laws limiting or prohibiting disclosure of each file’s contents include the following:

 42 USC §§ 1320d-2, 1320d-4; 45 CFR § 164.512(e) (HIPPA) prohibit the release of “protected health information” without a court order, a valid authorization from the affected individual, or a qualified protective order.  ORS 179.505 prohibits disclosure of written accounts of “protected health information” by a public health services provider without court order or authorization.  ORS 192.501; 192.502(2), (8), and (9) prescribe the numerous exemptions that limit disclosure of public records under the Public Records Law.  ORS 192.518 et seq. restrict disclosure of protected health information.  ORS 411.320, 418.130 restrict disclosure of records of participants and applicants for public assistance programs, with implementing regulations at OAR ch. 461 div. 105.  ORS 40.225 to 40.295 prescribe privileges, including, but not limited to, public officer, doctor-patient, nurse-patient, psychotherapist-patient, clinical social worker-client, and counselor-client.  42 USC. § 1396a(a)(7); 42 CFR §431.300 et seq.: prescribe confidentiality of documents under Medicaid programs.  42 USC. § 290dd-2; 42 CFR Part 2; ORS 430.399(6) prohibit disclosure of drug and alcohol treatment records, including patients’ identity, diagnosis, prognosis, and treatment.

OSH also wishes to point out for the court that information pertaining to persons other than those whose information was actually subpoenaed may be contained in these files. OSH respectfully requests that upon disclosure of any of the enclosed records that such information be redacted where appropriate.

[Insert signature of records custodian]

Page 40 of 80 Last updated: June 19, 2009

APPENDIX 4 DECLARATION OF RECORDS CUSTODIAN

Page 41 of 80 Last updated: June 19, 2009

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF COUNTY

PLAINTIFF, Case No.: Number

Plaintiff, DECLARATION OF RECORDS CUSTODIAN

v.

DEFENDANT,

Defendant. I, Records Custodian, do declare as follows: 1. I am employed by Agency/Facility. 2. I am a duly authorized custodian of Agency/Facility records and have the authority to certify records. 3. The attached copy is a true copy of all the records responsive to Plaintiff/Defendant’s subpoena duces tecum. 4. The attached records were prepared by the personnel of Agency/Facility, or persons acting under the control of Agency/Facility, in the ordinary course of Agency/Facility’s business, at or near the time of the act, condition, or event described or referred to therein.

I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to the penalty of perjury. Dated this ______day of March, 2009.

______Records Custodian

Page 42 of 80 Last updated: June 19, 2009

APPENDIX 5

COURT STATEMENTS

Page 43 of 80 Last updated: June 19, 2009 DHS, SENIORS AND PEOPLE WITH DISABILITIES Court Statement

Statement to be made to court when:

 The case before the court is not directly related to the administration of the Agency's program;  There is no adequate release;  There is no court order; and  There is no time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash.

"Your Honor, state and federal law prohibit me from testifying about information contained in Department of Human Services’ Seniors and People with Disabilities program files, or about information learned in the course of providing services to SPD clients, unless:

(1) The court case through which the information is sought is directly related to the administration of the Agency’s programs; (2) The client has provided authorization for release of documents and testimony by the Agency; or (3) The court has ordered disclosure of the requested documents and testimony about the disclosed documents.

"It is my understanding that this hearing is not related to the administration of the Agency’s programs, that there is no authorization for the release of documents or testimony about those documents, and no court order has been issued ordering me to testify about any documents.

"I brought with me a list of confidentiality statutes and rules that may apply in this case. Would your Honor like to review that list?"

 If yes, hand the list of confidentiality laws to the court clerk and the clerk will hand the list to the judge.  When the court is done reviewing the list, or if the court does not want to review the information, remind the court of the following:

"Violation of the confidentiality laws that apply to the SPD program could subject me to fines or imprisonment. I respectfully request that I not be required to either disclose records or to testify unless the Court first orders either disclosure of the requested records or disclosure of the records and testimony about the records."

WAIT FOR THE COURT’S ORDER. If the court orders disclosure, disclose the copied records that you brought with you to the hearing. Do not hand over original records. If the court orders disclosure and testimony, then disclose the copied records and proceed to answer the questions posed to you by the attorneys and the court.

Page 44 of 80 Last updated: June 19, 2009 SENIORS AND PEOPLE WITH DISABILITIES Statutes and Rules Related to Confidentiality SENIORS PERSONS WITH DISABILITIES Confidentiality in General Confidentiality in General 45 CFR 1321.51 Older Americans - 45 CFR 1385.9(d) Grants administration Confidentiality and disclosure of information requirements – confidentiality of client ORS 410.150 Use of agency files- information confidentiality 45 CFR 164.502 Uses and disclosures of OAR 411-005-0000 through 0060 information general rules Confidentiality of records and specifically - ORS 410.150 Use of files, confidentiality OAR 411-005-0035 Release of information in OAR 411-005-0000 through 0060. judicial proceedings Confidentiality of records and specifically - OAR 411-005-0040 Release of information in OAR 411-005-0035 Release of information in non-judicial proceedings judicial proceedings OAR 411-005-0040 Release of information in non-judicial proceedings

Abuse Investigation and Reporting Abuse Investigation and Reporting ORS 124.090 Confidentiality of elder abuse ORS 179.505 Disclosure of written accounts records by health care services provider OAR 411-020-0030 Adult Protective Services ORS 179.507 Legal action for wrongful facility and non facility based – confidentiality disclosure of information OAR 407-045-0480 General standards OAR 411-021-0025 Elder abuse reports and Confidentiality of client records confidentiality OAR 309-116-0060 Confidentiality of Office ORS 441.650 Investigation reports long term of Civil Rights report and Superintendent’s care abuse abuse reports ORS 441.671 Confidentiality of long term ORS 430.763 Confidentiality of abuse reports care abuse reports ORS 443.767 Adult foster care abuse reports OAR 411-320-0140 Community Developmental Disability Program abuse investigation and confidentiality

Drug and Alcohol Records Drug and Alcohol Records 42 USC 290dd-2 Drug and alcohol privacy 42 USC 290dd-2 Drug and alcohol privacy 42 CFR Part 2 Drug and alcohol records 42 CFR Part 2 Drug and alcohol records confidentiality confidentiality ORS 179.505 Disclosure of written accounts ORS 179.505 Disclosure of written accounts by health care services provider by health care services provider ORS 179.507 Legal action for wrongful ORS 179.507 Legal action for wrongful disclosure disclosure ORS 430.399(5) Confidentiality of treatment ORS 430.399(5) Confidentiality of treatment facility records facility records

Page 45 of 80 Last updated: June 19, 2009

SENIORS PERSONS WITH DISABILITIES Evidentiary Privileges Evidentiary Privileges ORS 40.225 Attorney-Client Privilege ORS 40.225 Attorney-Client Privilege ORS 40.270 The Public Officer Privilege ORS 40.270 The Public Officer Privilege

Guardianship: Guardianship: OAR 411-026-0070 Disclosure of information OAR 411-026-0070 Disclosure of information to attorney and court appointed visitor to attorney and court appointed visitor

Medicaid Nursing Facility Medicaid Nursing Facility OAR 411-085-0370 Confidentiality OAR 411-085-0370 Confidentiality

Medical Records Medical Records ORS 179.505 Disclosure of written accounts ORS 179.505 Disclosure of written accounts by health care services provider by health care services provider ORS 179.507 Legal action for wrongful ORS 179.507 Legal action for wrongful disclosure disclosure ORS 192.518 et seq. Protected Health ORS 192.518 et seq. Protected Health Information Information 42 USC 1320d Health Insurance Portability 42 USC 1320d Health Insurance Portability and Accountability Act (HIPAA) and Accountability Act (HIPAA) Public Law 104-191 §264 HIPAA Public Law 104-191 §264 HIPAA 45 CFR 164.502 HIPAA uses and disclosures 45 CFR 164.502 HIPAA uses and disclosures of information general rules of information general rules 45 CFR 164.512(e) Uses and disclosures for 45 CFR 164.512(e) Uses and disclosures for court orders and subpoenas court orders and subpoenas OAR 410-014-0000 through 0070 DHS rules OAR 410-014-0000 through 0070 DHS rules protecting privacy of medical information protecting privacy of medical information

Mental Health Records Mental Health Records ORS 179.505 Disclosure of written accounts ORS 179.505 Disclosure of written accounts by health care service provider by health care services provider ORS 179.507 Enforcement ORS 179.507 Legal action for wrongful OAR 411-005-0045 Release of psychiatric or disclosure psychological reports OAR 411-005-0045 Release of psychiatric or psychological reports

Page 46 of 80 Last updated: June 19, 2009

SENIORS PERSONS WITH DISABILITIES Public and Medical Assistance Laws Public and Medical Assistance Laws 7 USC 2020(e)(8) Federal Food Stamp 7 USC 2020(e)(8) Federal Food Stamp Program Program 7 CFR 272.1(c) Federal Food Stamp Program 7 CFR 272.1(c) Federal Food Stamp Program 42 USC 602(a)(1)(A)(iv) Temporary 42 USC 602(a)(1)(A)(iv) Temporary Assistance for Needy Families Assistance for Needy Families 42 USC 1396a(a)(7) Medicaid 42 USC 1396a(a)(7) Medicaid 42 CFR 431.300 et seq. Medicaid 42 CFR 431.300 et seq. Medicaid ORS 411.320 Disclosure and use of public ORS 411.320 Disclosure and use of public assistance records assistance records ORS 411.990 Penalties ORS 411.990 Penalties ORS 412.074 Use and custody of records of ORS 412.074 Use and custody of records of the temporary assistance for needy families the temporary assistance for needy families (TANF) program (TANF) program ORS 412.991 Penalties ORS 412.991 Penalties OAR 461-105-0110 through 0130 OAR 461-105-0110 through 0130 Confidentiality Confidentiality

The Public Records Laws The Public Records Laws ORS 192.502(2), (8) and (9) Public Records ORS 192.502(2), (8) and (9) Public Records laws laws

Page 47 of 80 Last updated: June 19, 2009 DHS, SELF SUFFICIENCY PROGRAMS Court Statement

Statement to be made to court when:

 The case before the court is not directly related to the public assistance programs;  There is no adequate release;  There is no court order; and  There is no time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash.

"Your Honor, state and federal law prohibit me from testifying about information contained in Department of Human Services’ Self Sufficiency Program files, or learned in the course of providing services to Self Sufficiency Program clients, unless:

(1) The court case in which the information is sought is directly related to the administration of the public assistance program; (2) The client has provided an authorization for release of documents or testimony by the Self Sufficiency Programs; or (3)The court has ordered disclosure of the requested documents and testimony about those documents.

"It is my understanding that this hearing is not related to the administration of the public assistance laws, that there is no authorization for release of documents or testimony, and that no court order has issued ordering me to release documents or testify about the requested documents.

"I brought with me a list of confidentiality statutes and rules that may apply in this case. Does your Honor wish to review that list?"

 If yes, hand the list of laws to the court clerk.  If the judge states he or she does not wish to review this list or the judge is done reviewing the list, continue as follows:

"Violation of the confidentiality laws that apply to the self-sufficiency program could subject me to fines or imprisonment. I respectfully request that I not be required to either disclose records or to testify unless the Court orders either disclosure of the requested records or disclosure of the records and testimony about the records."

WAIT FOR THE COURT’S ORDER. If the court orders disclosure then disclose the copy of the records that you brought with you to the hearing. Do not hand over originals. If the court orders disclosure and testimony about the records, then disclose the records and proceed to answer the questions posed to you by the attorneys and the court.

Page 48 of 80 Last updated: June 19, 2009

SELF-SUFFICIENCY PROGAMS: Statutes and Rules Related to Confidentiality State Public Assistance ORS 411.320 State public assistance confidentiality Programs law covering programs such as Food Stamps and Medical Assistance ORS 412.074 State Temporary Assistance for Needy Families (TANF) program privacy law OAR 461-105-0110 through 0130 Privacy rules implementing ORS chapters 411 and 418 Federal Temporary Assistance 42 USC § 602(a)(1)(A)(iv) – Federal Temporary Assistance for Needy Families privacy law Food Stamps 7 USC §2020(e)(8); 7 CFR 272.1(c) Federal Food Stamp program privacy law Medicaid 42 USC §1396a(a)(7); 42 CFR 431.300 et seq., Federal Medicaid privacy law Individually Identifiable Health 42 USC §1320d; Public Law 104-191 §264; 45 Information CFR 164.512(e)(1)(i) HIPAA ORS 192.518 to 192.524 Protected Health Information OAR 410-014-0000 through 0070 DHS rules protecting privacy of medical information Confidentiality, Generally ORS 192.502(2), (8) and (9) Privacy and the Public Records laws Drug and Alcohol Records 42 USC 290dd-2 Drug and alcohol privacy 42 CFR Part 2 Drug and alcohol records confidentiality ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure ORS 430.399(5) Confidentiality of treatment facility records Mental Health Records ORS 179.505 Disclosure of written accounts by health care services provider Evidentiary Privileges ORS 40.230 Psychotherapist-Patient Privilege ORS 40.235 Physician-Patient Privilege ORS 40.240 Nurse-Patient Privilege ORS 40.250 Clinical Social Worker-Client Privilege ORS 40 262 Counselor-Client Privilege ORS 40.270 The Public Officer Privilege; a public officer shall not be examined as to public records determined to be exempt from disclosure under ORS 192.501 to 192.505

Page 49 of 80 Last updated: June 19, 2009 DHS, OREGON STATE HOSPITAL/BLUE MOUNTAIN RECOVERY CENTER COURT STATEMENT

Statement to be made to the court when:

 There is no adequate release;  There is no court order; and  There is no time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash

"Your Honor, state and federal law prohibit me from disclosing patient records and from testifying about information contained in patient records unless:

(1) The patient or client has provided written authorization for release of documents by OSH/BMRC and testimony about the contents of those documents by a representative of OSH/BMRC; or (2) The court has ordered disclosure of the requested documents and testimony about those documents.

"It is my understanding that none of those conditions has been met in this case. I have with me a list of the state and federal statutes and rules applicable to disclosure of the subject records. May I hand that list to the Court?" [See attached list.]

"Violation of the applicable confidentiality laws could subject me to fines or imprisonment. Therefore, I respectfully request that I not be required to either disclose records or testify about records unless the patient authorizes me to do so in writing, or the Court orders both disclosure of the patient records and testimony regarding those records."

WAIT FOR THE JUDGE’S ORDER:

If the judge orders disclosure, you may provide to the judge the records you brought to the hearing. Do not hand over original records. If the judge orders you to disclose the records without specifically ordering you to answer questions about them, you may testify only that the records you are disclosing are true and correct copies of OSH’s/BMRC’s records.

For you to testify further regarding the records, however, the court must order you testify regarding the substance of the records even if the judge has ordered you to disclose them. So, if the judge orders disclosure and testimony about the records, you may then disclose the records and answer the questions posed to you about the records by the attorneys and the judge.

Page 50 of 80

OREGON STATE HOSPITAL/BLUE MOUNTAIN RECOVERY CENTER: Statutes and Rules Related to Confidentiality Confidentiality In General Mental Health Records ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure OAR 309-016-0035 Medicaid and client rights OAR 309-016-0120 Providers of Medicaid services must keep client information confidential

HIPAA and Medical Records 42 USC 1320d Health Insurance Portability and Accountability Act (HIPAA) Public Law 104-191 §264 (August 21, 1996) HIPAA 45 CFR Part 160 to 164 HIPAA 45 CFR 164.502 HIPAA uses and disclosures of information general rules 45 CFR 164.512(e) Uses and disclosures for court orders and subpoenas 42 USC §1396a(a)(7) Federal Medicaid and confidentiality 42 CFR 431.300 et seq., Federal Medicaid Privacy regulations ORS 192.518 through 192.524 Protected Health Information OAR 410-014-0000 through 0070 Privacy of medical information

Civil Commitment Hearings ORS 426.075 Provision of documents to the court ORS 426.095 Use of the investigation report in court ORS 426.278 Distribution of copies ORS 426.155 Release of information about person held in custody pending commitment proceeding or while committed or re-committed OAR 309-033-0940 The investigation report – confidentiality

Oregon State Hospital And OAR 407-045-0480 Confidentiality of Office of Civil Eastern Oregon Psychiatric Rights report and Superintendent’s abuse reports Center

Page 51 of 80 Public Assistance Records ORS 411.320; 412.074 Restrict disclosure of records of participants and applicants for public assistance programs OAR 461, Div. 105 Implementing rules ORS 411.990 Criminal penalties for violations of ORS 411.320 and 412.074 42 USC. § 1396a(a)(7); 42 CFR §431.300 et seq.: Confidentiality of documents under Medicaid programs

Drug and Alcohol Records 42 USC 290dd-2 Drug and alcohol privacy 42 CFR Part 2 Drug and alcohol records confidentiality ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure ORS 430.399(5) Confidentiality of treatment facility records ORS 430.475(2) Confidentiality of evaluation records; criminal proceedings

Evidentiary Privileges ORS 40.230 Psychotherapist-Patient Privilege ORS 40.235 Physician-Patient Privilege ORS 40.240 Nurse-Patient Privilege ORS 40.250 Clinical Social Worker-Client Privilege ORS 40 262 Counselor-Client Privilege ORS 40.270 The Public Officer Privilege

HIV ORS 433.008 Communicable disease confidentiality ORS 433.045(3) Non-disclosure of identity of person with HIV ORS 433.075 Informed consent required OAR 333-012-0270 Confidentiality

Public Records Laws ORS 192.496 Related to physical or mental health or psychiatric care or treatment records; sealed records; records of an individual in custody or under supervision; or student records. (Construe carefully in light of HIPAA ORS 192.502(2), (7), (8) and (9) Confidentiality relating to personal information, parole and probation reports to the court, and that required by other state or federal laws

Page 52 of 80 DHS, DIVISION OF MEDICAL ASSISTANCE PROGRAMS’ Court Statement

Statement to be made to court when:

 The case before the court is not directly related to the medical assistance program;  There is no adequate release;  There is no court order; and  There is no time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash

"Your Honor, state and federal law prohibit me from testifying about information contained in Department of Human Services’ Office of Medical Assistance Program files, or information learned in the course of providing services to OMAP clients, unless:

(1) The court case in which the information is sought is directly related to the administration of the medical assistance program; (2) The client has provided authorization for release of documents and testimony by the Office of Medical Assistance Programs; or (3) The court has ordered disclosure of the requested documents and testimony about those documents.

"It is my understanding that none of these conditions have been met. I brought with me a list of confidentiality statutes and rules that may apply in this case. May I give that to your Honor?"

 If yes, hand the list of confidentiality laws to the court clerk.  If the Judge has stated it does not want to review the information or the judge is done reviewing the list, continue:

"Violation of the confidentiality laws that apply to the Office of Medical Assistance records could subject me to fines or imprisonment. I respectfully request that I not be required to disclose records or to testify unless the Court orders either disclosure of the requested records or disclosure of the records and testimony about the records."

WAIT FOR THE COURT’S ORDER. If the court orders disclosure then disclose the copy of the records that you brought with you to the hearing. Do not hand over original records. If the court orders disclosure and testimony about the records, then disclose the records and proceed to answer the questions posed to you by the attorneys and the court.

Page 53 of 80 DIVISION OF MEDICAL ASSISTANCE PROGRAMS: Statutes and Rules Related to Confidentiality Confidentiality In General Medical Assistance Program Records 42 USC §1396a(a)(7) Federal Medicaid and confidentiality 42 CFR 431.300 et seq., Federal Medicaid privacy regulations ORS 410.150 Use of files; confidentiality; privileged communications ORS 411.320 Disclosure and use of public assistance records; contents as privileged communications; exceptions ORS 411.990 Penalties for violation of ORS 411.320 ORS 192.518 through 192.524 Protected Health Information OAR 410-014-0000 through 0070 Privacy of medical information OAR 461-105-0110 through 0140 Confidentiality

HIPAA 42 USC 1320d Health Insurance Portability and Accountability Act (HIPAA) Public Law 104-191 §264 (August 21, 1996) HIPAA 45 CFR Part 160 to 164 HIPAA 45 CFR 164.500 et seq. Privacy of Individually Identifiable Health Information 45 CFR 164.502 HIPAA uses and disclosures of information general rules 45 CFR 164.512(e) Uses and disclosures for court orders and subpoenas

Abuse Reporting 45 CFR 164.512(c) HIPAA adult abuse reporting ORS 430.763 Confidentiality of records OAR 309-116-0060 Confidentiality and disclosure of investigation report and Superintendent's report OAR 410-009-0130 Community Programs and Community Facilities - Disclosure of abuse investigation and protective services report and related documents

Drug and Alcohol Records 42 USC 290dd-2 Drug and alcohol privacy 42 CFR Part 2 Drug and alcohol records confidentiality ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure ORS 430.399(5) Confidentiality of treatment facility records ORS 430.475(2) Confidentiality of evaluation records; criminal proceedings

Page 54 of 80

Electronic Data Interchange 42 USC §1320d-1320d-8, Public Law 104-191, sec. 262 & sec. 264 (EDI) (1996) Health Insurance Portability and Accountability Act of 1996. 45 CFR 164.302 et seq. Security Standards for the Protection of Electronic Protected Health Information OAR 410-001-0100 to 0200 The exchange of business documents from application to application in a federally mandated format or (if no federal standard has been promulgated) such other format as DHS shall designate. Relates to privacy of electronically exchanged information pertaining to covered individuals, which is exchanged by and between DHS, the Provider, Prepaid Health Plan, Clinic, Allied Agency and Agents for various business purposes but which is protected from disclosure to unauthorized persons or entities by state and federal statutes such as ORS 344.600, 410.150, 411.320, 418.130, or HIPAA and its implementing regulations. OAR 410-001-0160(2) Conduct of Transactions: Security and Confidentiality OAR 410-001-0170 Confidentiality and Security

Evidentiary Privileges ORS 40.230 Psychotherapist-Patient Privilege ORS 40.235 Physician-Patient Privilege ORS 40.240 Nurse-Patient Privilege ORS 40.250 Clinical Social Worker-Client Privilege ORS 40 262 Counselor-Client Privilege ORS 40.270 The Public Officer Privilege – a public officer shall not be examined as to public records determined to be exempt from disclosure under ORS 192.501 to 192.505

Genetic Information ORS 192.531 to ORS 192.549 Genetic privacy OAR 333-025-0160 Genetic privacy

HIV ORS 433.008 Communicable disease confidentiality ORS 433.045(3) Non-disclosure of identity of person with HIV ORS 433.075 Informed consent required OAR 333-012-0270 Confidentiality

Mental Health Records ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure OAR 309-016-035 Medicaid and client rights OAR 309-016-120 Providers of Medicaid services must keep client information confidential

Page 55 of 80 Public Assistance Laws - non 7 USC 2020(e)(8) Federal Food Stamp Program medical 7 CFR 272.1(c) Federal Food Stamp Program 42 USC 602(a)(1)(A)(iv) Temporary Assistance for Needy Families ORS 411.320 Disclosure and use of public assistance records ORS 411.990 Penalties ORS 418.130 Use and custody of records of the temporary assistance for needy families (TANF) program OAR 461-105-0110 through 0140 Confidentiality

Public Records Laws ORS 192.496 Related to physical or mental health or psychiatric care or treatment records; sealed records; records of an individual in custody or under supervision; or student records. Carefully construe in light of HIPAA ORS 192.501(22) and (23) Confidentiality of records pertaining to building security and security of information process systems ORS 192.502(2), (8), (9) and (10) Confidentiality relating to personal information and that required by other state or federal laws ORS 192.518 through 192.524 Protected Health Information

Page 56 of 80 DHS, MENTAL HEALTH AND ADDICTION SERVICES (Mental Retardation and Mentally Ill) Court Statement

Statement to be made to court when:

 The case is not directly related to the administration of the Agency’s programs;  There is no adequate release;  There is no court order; and  There was insufficient time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash.

"Your Honor, state and federal law prohibit me from testifying about information contained in Department of Human Services’ Office of Mental Health and Addiction Services program files, or learned in the course of providing services to OMHAS clients, unless:

(1) The case in which the information is sought is directly related to the administration of the Agency’s programs; (2) The client has provided authorization for release of documents by the Agency and for testimony about the released documents by Agency employees; or (3) The court has ordered disclosure of the requested documents and testimony.

"It is my understanding that none of these conditions have been met. I brought with me a list of state and federal statutes and rules applicable to the Agency’s mental health files."

Hand the prepared list of statutes and rules to the judge and the parties and continue:

"Violation of the confidentiality laws contained in the listed statutes and rules could subject me to fines or imprisonment. I respectfully request that I not be required to disclose records or to testify unless the court first orders either disclosure of the requested records or disclosure of the records and testimony about the records."

WAIT FOR THE COURT’S ORDER. If the court orders disclosure, disclose the copied records that you brought with you to the hearing. Do not hand over original records. If the court orders disclosure and testimony, then disclose the copied records and proceed to answer the questions posed to you by the attorneys and the court.

Page 57 of 80

OFFICE OF MENTAL HEALTH AND ADDICTION SERVICES (Mentally Ill) Statutes and Rules Related to Confidentiality Confidentiality In General Mental Health Records ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure OAR 309-016-0035 Medicaid and client rights OAR 309-016-0120 Providers of Medicaid services must keep client information confidential

HIPAA and Medical Records 42 USC 1320d Health Insurance Portability and Accountability Act (HIPAA) Public Law 104-191 §264 (August 21, 1996) HIPAA 45 CFR Part 160 to 164 HIPAA 45 CFR 164.502 HIPAA Uses and disclosures of information general rules 45 CFR 164.512(e) Uses and disclosures for court orders and subpoenas 42 USC §1396a(a)(7) Federal Medicaid and confidentiality 42 CFR 431.300 et seq., Federal Medicaid privacy regulations ORS 192.518 through 192.524 Protected Health Information OAR 410-014-0000 through 0070 Privacy of medical information

Adult Foster Homes ORS 443.739 Rights of residents ORS 443.740 Information about licensed foster homes ORS 443.765 Complaints - confidentiality ORS 443.991 Penalties OAR 309-040-0410 Residents rights, complaints and grievances

Children's Intensive OAR 309-032-1280 Confidentiality of clinical records Community-Based Treatment OAR 309-032-1290 Child’s right to confidentiality and Support Services

Page 58 of 80 Civil Commitment Hearings ORS 426.075 Provision of documents to the court ORS 426.095 Use of the investigation report in court ORS 426.278 Distribution of copies ORS 426.155 Release of information about person held in custody pending commitment proceeding or while committed or re-committed OAR 309-033-0940 The investigation report – confidentiality

Oregon State Hospital And OAR 407-045-0480 Confidentiality of Office of Civil Eastern Oregon Psychiatric Rights report and Superintendent’s abuse reports Center

Abuse Reporting 45 CFR 164.512(c) HIPAA adult abuse reporting ORS 430.763 Confidentiality of records OAR 407-045-0330 Confidentiality and disclosure of investigation report and Superintendent's report OAR 407-009-0130 Community Programs and Community Facilities - Disclosure of abuse investigation and protective services report and related documents

Drug and Alcohol Records 42 USC 290dd-2 Drug and alcohol privacy 42 CFR Part 2 Drug and alcohol records confidentiality ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure ORS 430.399(5) Confidentiality of treatment facility records ORS 430.475(2) Confidentiality of evaluation records; criminal proceedings

Evidentiary Privileges ORS 40.230 Psychotherapist-Patient Privilege ORS 40.235 Physician-Patient Privilege ORS 40.240 Nurse-Patient Privilege ORS 40.250 Clinical Social Worker-Client Privilege ORS 40 262 Counselor-Client Privilege ORS 40.270 The Public Officer Privilege

Genetic Information ORS 192.531 to ORS 192.549 Genetic privacy OAR 333-025-0160 Genetic privacy

Page 59 of 80 HIV ORS 433.008 Communicable disease confidentiality ORS 433.045(3) Non-disclosure of identity of person with HIV ORS 433.075 Informed consent required OAR 333-012-0270 Confidentiality

Public and Medical Assistance 7 USC 2020(e)(8) Federal Food Stamp Program Laws 7 CFR 272.1(c) Federal Food Stamp Program 42 USC 602(a)(1)(A)(iv) Temporary Assistance for Needy Families 42 USC 1396a(a)(7) Medicaid 42 CFR 431.300 et seq. Medicaid ORS 411.320 Disclosure and use of public assistance records ORS 411.990 Penalties ORS 412.074 Use and custody of records of the temporary assistance for needy families (TANF) program ORS 412.991 Penalties OAR 461-105-0110 through 0130 Confidentiality

Public Records Laws ORS 192.496 Related to physical or mental health or psychiatric care or treatment records; sealed records; records of an individual in custody or under supervision; or student records. Note this statute must be carefully construed in light of HIPAA ORS 192.502(2), (7), (8) and (9) Confidentiality relating to personal information, parole and probation reports to the court, and that required by other state or federal laws

Page 60 of 80

DHS, OFFICE OF MENTAL HEALTH AND ADDICTION SERVICES (Mental Retardation and Developmental Disability) Court Statement

Statement to be made to court when:

 The case before the court is not directly related to the medical assistance program;  There is no adequate release;  There is no court order; and  There is no time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash

"Your Honor, state and federal law prohibit me from testifying about information contained in Department of Human Services’ Office of Mental Health and Addiction Services program files, or learned in the course of provision of services to OMHAS clients, unless:

(1) The court case in which the information is sought is directly related to the administration of the Agency’s programs; (2) The client has provided authorization for release of documents by the Agency and for testimony about the released documents by Agency employees; or (3) The court has ordered disclosure of the requested documents and testimony about the disclosed documents by Agency employees.

"It is my understanding that none of these conditions has been met. I brought with me a list of state and federal statutes and rules applicable to the Agency’s mental retardation and developmental disabilities program file(s)."

Hand the court clerk the prepared list of statutes and rules and continue:

"Violation of the confidentiality mandates contained in the listed statutes and rules could subject me to fines or imprisonment. I respectfully request that I not be required to disclose records or to testify unless the Court first orders either disclosure of the requested records or disclosure of the records and testimony about the records."

WAIT FOR THE COURT’S ORDER. If the court orders disclosure, disclose the copied records that you brought with you to the hearing. Do not hand over original records. If the court orders disclosure and testimony, then disclose the copied records and proceed to answer the questions posed to you by the attorneys and the court.

Page 61 of 80

OFFICE OF MENTAL HEALTH AND ADDICTION SERVICES (Mental Retardation and Developmental Disabilities) Statutes and Rules Related to Confidentiality Confidentiality In General Mental Retardation and Developmental Disabilities Records ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure

HIPAA and Medical Records 42 USC 1320d Health Insurance Portability and Accountability Act (HIPAA) Public Law 104-191 §264 (August 21, 1996) HIPAA 45 CFR Part 160 to 164 HIPAA 45 CFR 164.502 HIPAA Uses and disclosures of information general rules 45 CFR 164.512(e) Uses and disclosures for court orders and subpoenas ORS 192.518 to ORS 192.524 Protected Health Information OAR 410-014-0000 through 0070 DHS rules protecting privacy of medical information

Mental Health Records ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure OAR 309-016-0035 Medicaid and client rights OAR 309-016-0120 Providers of Medicaid services must keep client information confidential OAR 309-032-1280 through 1305 Providers of children's intensive community-based treatment and support services must keep records confidential

Education Records 20 USC 1232g Family Educational and Privacy Rights Act (FERPA) 34 CFR 99.30 Disclosure of personally identifying information from education records 20 USC 1417(c) Individuals with Disabilities Education Act (IDEA) protection of education information

Page 62 of 80 Adult Foster Homes ORS 443.739 Rights of residents ORS 443.740 Information about licensed foster homes ORS 443.765 Complaints - confidentiality ORS 443.991 Penalties OAR 309-040-0410 Residents rights, complaints and grievances

Civil Commitment ORS 427.235 Civil commitment in mental retardation case Hearings - investigation report ORS 427.293 Record of proceedings; sealed records; disclosure

EOTC OAR 407-045-0480 Confidentiality of Office of Civil Rights report and Superintendent’s abuse reports

Intermediate Care OAR 309-043-0310 Confidentiality of medical records Facilities for the Mentally OAR 309-043-0430 to 0440 Rights to confidentiality Retarded

Residential Care for OAR 309-035-0117(6) and (7) General confidentiality of Mentally/Emotionally resident records Disturbed (includes adult OAR 309-035-0300 Confidentiality of residential foster homes) treatment home resident records OAR 309-035-0380 Residential treatment home resident rights OAR 309-040-0410 Resident rights adult foster care OAR 309-040-0445 Public information relating to adult foster care homes

Supported Living Services OAR 309-041-0720 through 730 Rights of residents to for developmentally privacy and confidentiality of record information disabled person

Abuse Reporting 45 CFR 164.512(c) HIPAA adult abuse reporting ORS 430.763 Confidentiality of records ORS 430.765 Duty to report abuse OAR 407-045-0480 Confidentiality and disclosure of investigation report and Superintendent's report OAR 407-045-0330 Community Programs and Community Facilities - Disclosure of abuse investigation and protective services report and related documents.

Page 63 of 80 Drug and Alcohol Records 42 USC 290dd-2 Drug and alcohol privacy 42 CFR Part 2 Drug and alcohol records confidentiality ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure ORS 430.399(5) Confidentiality of treatment facility records ORS 430.475(2) Confidentiality of evaluation records; criminal proceedings

Evidentiary Privileges ORS 40.230 Psychotherapist-Patient Privilege ORS 40.235 Physician-Patient Privilege ORS 40.240 Nurse-Patient Privilege ORS 40.250 Clinical Social Worker-Client Privilege ORS 40 262 Counselor-Client Privilege ORS 40.270 The Public Officer Privilege

Public and Medical 7 USC 2020(e)(8) Federal Food Stamp Program Assistance laws 7 CFR 272.1(c) Federal Food Stamp Program 42 USC 602(a)(1)(A)(iv) Temporary Assistance for Needy Families 42 USC 1396a(a)(7) Medicaid 42 CFR 431.300 et seq. Medicaid ORS 411.320 Disclosure and use of public assistance records ORS 411.990 Penalties ORS 412.074 Use and custody of records of the Temporary Assistance for Needy Families (TANF) program ORS 412.991 Penalties OAR 461-105-0110 through 0130 Confidentiality

The Public Records Laws ORS 192.496 Related to physical or mental health or psychiatric care or treatment records; sealed records; records of an individual in custody or under supervision; or student records. Note this statute must be carefully construed in light of HIPAA. ORS 192.502(2), (7), (8) and (9) Confidentiality relating to personal information, parole and probation reports to the court, and that required by other state or federal laws

Page 64 of 80

DHS, OFFICE OF MENTAL HEALTH AND ADDICTION SERVICES (Drug and Alcohol) Court Statement

Statement to be made to court when:

 There is no adequate release;  There is no court order; and  There was insufficient time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash

"Your Honor, state and federal law prohibit me from confirming whether or not the Department of Human Services’ Office of Mental Health and Addiction Services has any documents that are responsive to the subpoena that it received. And, if such records do exist, I am prohibited from testifying about information contained in program files, or learned in the course of provision of services to OMHAS clients, unless:

(1) The client has provided authorization for release of documents by the Agency and for testimony about the released documents by Agency employees; or (2) The court has made the findings required by 42 CFR 2.63:  Disclosure is necessary to protect against an existing threat to life or of serious bodily injury including suspected child abuse and neglect and verbal threats against third parties; or  The disclosure is necessary for investigation or prosecution of an extremely serious crime such as one that directly threatens loss of life or serious bodily injury including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon or child abuse and neglect; or  The disclosure is in connection with litigation in which the patient offers testimony or other evidence pertaining to the content of the confidential communications, and, subject to those findings, the court has ordered disclosure of the requested documents and testimony about the disclosed documents by Agency employees.

"It is my understanding that none of these conditions has been met. For the court’s convenience I brought with me a list of state and federal statutes and rules applicable to the Agency’s drug and alcohol program file(s)."

Hand the list of statutes and rules to the court clerk and the parties and continue:

"Violation of the confidentiality mandates contained in the listed statutes and rules could subject me to fines or imprisonment.

Page 65 of 80

"Your Honor, a court order for the release of drug and alcohol records can only be entered if the court makes the following findings:

(1) Good cause exists for entering the order; (2) Other ways of obtaining the information are not available or would not be effective; and (3) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services."36

"Finally, the court order must:

(1) Limit the disclosure to that information which is essential to fulfill the objectives; (2) Limit disclosure to those persons who need the information; and (3) Include other measures to limit disclosure and protect the patient, such as sealing the records."37

WAIT FOR THE COURT’S ORDER. If the court orders disclosure, disclose the copied records that you brought with you to the hearing. Do not hand over original records. If the court orders disclosure and testimony, then disclose the copied records and proceed to answer the questions posed to you by the attorneys and the court.

36 42 CFR 2.64(d). 37 42 CFR 2.64(e).

Page 66 of 80

OFFICE OF MENTAL HEALTH AND ADDICTION SERVICES (Drug and Alcohol) Statues and Rules Related to Confidentiality Alcohol and Drug Records 42 USC 290dd-2 Confidentiality of records 42 CFR Part 2 Confidentiality of alcohol and drug abuse patient records – see specifically 42 CFR 2.63 relating to necessary findings; 2.64 procedures for orders authorizing disclosures for non-criminal purposes; 2.65 procedures and criteria for orders authorizing disclosure and use for records to criminally investigate or prosecute patients; and 2.66 procedures and criteria for orders authorizing disclosure and use of records to investigate or prosecute a program or the person holding the records. ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action to enforce confidentiality ORS 430.399(5) Confidentiality of treatment facility records ORS 430.475(2) Confidentiality of evaluation records; criminal proceedings OAR 415-012-0080 Confidentiality and client complaints OAR 415-051-0020 Client rights OAR 414-054-0310(7) Standards for marijuana evaluation specialists - confidentiality

HIPAA and Medical Records 42 USC 1320d Health Insurance Portability and Accountability Act (HIPAA) Public Law 104-191 §264 (August 21, 1996) HIPAA 45 CFR Part 160 to 164 HIPAA 45 CFR 164.502 HIPAA Uses and disclosures of information general rules 45 CFR 164.512(e) Uses and disclosures for court orders and subpoenas ORS 192.518 to ORS 192.524 Protected Health information OAR 410-014-0000 through 0070 DHS rules protecting privacy of medical information

Alcohol and Drug Evaluation OAR 415-054-0076 Confidentiality Specialists

DUII Alcohol and Other OAR 415-054-0018 Record Confidentiality Drug Programs

Opiate Treatment Programs OAR 415-020-0020 Confidentiality

Outpatient Alcohol and Drug OAR 415-051-0020 Confidentiality Programs

Page 67 of 80 Residential Treatment OAR 415-051-0140 Confidentiality Services

Abuse Reporting 45 CFR 164.512(c) HIPAA adult abuse reporting ORS 430.763 Confidentiality of records OAR 407-045-0480 Confidentiality and disclosure of investigation report and Superintendent's report

Evidentiary Privileges ORS 40.230 Psychotherapist-Patient Privilege ORS 40.235 Physician-Patient Privilege ORS 40.240 Nurse-Patient Privilege ORS 40.250 Clinical Social Worker-Client Privilege ORS 40 262 Counselor-Client Privilege ORS 40.270 The Public Officer Privilege

Genetic Privacy ORS 192.531 to ORS 192.549 Genetic privacy OAR 333-025-0160 Genetic privacy

HIV Confidentiality ORS 433.008 Communicable disease confidentiality ORS 433.045(3) Non-disclosure of identity of person with HIV ORS 433.075 Informed consent required OAR 333-012-0270 Confidentiality

Mental Health Records ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure OAR 309-016-0035 Medicaid and client rights OAR 309-016-0120 Providers of Medicaid services must keep client information confidential OAR 309-032-1280 through 1305 Providers of children's intensive community based treatment and support services must keep records confidential

Public and Medical 7 USC 2020(e)(8) Federal Food Stamp Program Assistance Programs 7 CFR 272.1(c) Federal Food Stamp Program 42 USC 602(a)(1)(A)(iv) Temporary Assistance for Needy Families 42 USC 1396a(a)(7) Medicaid 42 CFR 431.300 et seq. Medicaid ORS 411.320 Disclosure and use of public assistance records ORS 411.990 Penalties ORS 412.074 Use and custody of records of the Temporary Assistance for Needy Families (TANF) program ORS 412.991 Penalties OAR 461-105-0110 through 0130 Confidentiality

Page 68 of 80 The Public Records Law ORS 192.496 Related to physical or mental health or psychiatric care or treatment records; sealed records; records of an individual in custody or under supervision; or student records. Note this statute must be carefully construed in light of HIPAA. ORS 192.502(2), (7), (8) and (9) Confidentiality relating to personal information, parole and probation reports to the court, and that required by other state or federal laws

Page 69 of 80

DHS, OREGON MEDICAL MARIJUANA PROGRAM Court Statement

Statement to be made to court when:

 There is no adequate release of information;  There is no court order to release information;  You are being asked to disclose more information than is permitted in ORS 475.331; and  There was insufficient time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash

"Your Honor, state and federal law prohibit me from testifying about information contained in the Oregon Medical Marijuana Program files unless:

(1) An OMMP cardholder has provided an authorization for release of documents by the OMMP and for testimony about the released documents by an OMMP employee; (2) The court has ordered disclosure of the requested documents and testimony about the disclosed documents by an OMMP employee; or (3) I am asked to verify, for law enforcement:  Whether a particular person is a lawful possessor of an OMMP card;  Whether a particular address is an authorized grow site and how many people are authorized to grow at that address; or  How many people for whom a particular person is growing or care-giving.

"It is my understanding that I am being asked to do more than verify information for law enforcement and that there is no release or court order that would allow me to release records or testify. I brought with me a list of state and federal statutes and rules applicable to the Agency’s Medical Marijuana Program file(s)."

Hand the DOJ prepared list of statutes and rules to the court clerk and the parties and continue:

"Violation of the confidentiality mandates contained in the listed statutes and rules could subject me to fines or imprisonment. I respectfully request that I not be required to disclose records or testify unless the court orders disclosure of records and testimony."

WAIT FOR THE COURT’S ORDER. If the court orders disclosure, disclose the copied records that you brought with you to the hearing. Do not hand over original records. If the court orders disclosure and testimony, then disclose the copied records and proceed to answer the questions posed to you by the attorneys and the court.

Page 70 of 80 OMMP Statutes and Rules Related to Confidentiality Oregon Medical Marijuana ORS 475.331 Disclosure and information maintained by Program confidentiality OMMP OAR 333-008-0050 Confidentiality and OMMP information

HIPAA 42 USC 1320d-7(b) Health Insurance Portability and Accountability Act (HIPAA)-the Public Health carve out Public Law 104-191 §264, August 21, 1996 HIPAA and State Law 45 CFR Parts 160 to 164 – HIPAA regulations 45 CFR 164.512(e)(1)(i) – HIPAA, subpoenas and court orders

Evidentiary Privileges ORS 40.235 Physician-Patient Privilege

HIV ORS 433.008 Communicable disease confidentiality ORS 433.045(3) Non-disclosure of identity of person with HIV ORS 433.075 Informed consent required OAR 333-012-0270 Confidentiality

Medical Records ORS 192.518 through 192.524 Protected Health Information OAR 410-014-0000 through 0070 Privacy of medical information ORS 431.550 Authority of Department of Human Services to collect information from local public health administrators

Public and Medical Assistance 7 USC 2020(e)(8) Federal Food Stamp Program Laws 7 CFR 272.1(c) Federal Food Stamp Program 42 USC 1396a(a)(7) Medicaid 42 CFR 431.300 et seq. Medicaid ORS 411.320 Disclosure and use of public assistance records ORS 411.990 Penalties ORS 412.991 Penalties OAR 461-105-0110 through 0130 Confidentiality

Public Records Laws ORS 192.502(2), (8) and (9) Public Records laws

Page 71 of 80 DHS, OFFICE OF VOCATIONAL REHABILITATION SERVICES Court Statement

Statement to be made to court when:

 The case before the court is not directly related to the administration of the Agency’s programs;  There is no adequate release;  There is no court order; and  There was insufficient time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash

"Your Honor, state and federal law prohibit me from testifying about information contained in Department of Human Services’ Office of Vocational Rehabilitation Services (OVRS) program files, or learned in the course of provision of services to OVRS clients, unless one of three contingencies is fulfilled:

(1) The court case in which the information is sought is directly related to the administration of the Agency’s programs; (2) The client has provided authorization for release of documents by the Agency and for testimony about the released documents by Agency employees; or (3) The court has ordered disclosure of the requested documents and testimony about the disclosed documents by Agency employees.

"It is my understanding that none of these conditions have been met. I brought with me a list of state and federal statutes and rules applicable to the Agency’s vocational rehabilitation file(s)."

Hand the list of statutes and rules to the court clerk and the parties and continue:

"Violation of the confidentiality laws in the list I provided could subject me to fines or imprisonment. I respectfully request that I not be required to either disclose records or to testify unless the court orders disclosure or testimony."

WAIT FOR THE COURT’S ORDER. If the court orders disclosure, disclose the copied records that you brought with you to the hearing. Do not hand over original records. If the court orders disclosure and testimony, then disclose the copied records and proceed to answer the questions posed to you by the attorneys and the court.

Page 72 of 80

OFFICE OF VOCATIONAL REHABILITATION SERVICES Statutes and Rules Related to Confidentiality Confidentiality, Generally 29 USC 705(2)(B)(ii) Confidentiality and use of information 29 USC 721(a)(10)(F) Confidentiality of identifying information 34 CFR 361.38 Protection, use and release of personal information ORS 344.530(1)(b) DHS is mandated to safeguard the confidential character of vocational rehabilitation information and records ORS 344.600 Unauthorized use of official rehabilitation data OAR 582-030-0000 through 0040 Confidentiality and OVRS information OAR 582-030-0010 (3) Conditions for disclosure of information to the court OAR 582-030-0025 Responding to subpoenas

Abuse Reporting OAR 582-030-0040(1)(a) Abuse reporting ORS 124.060 Elder abuse reporting ORS 419B.010 Child abuse reporting ORS 430.765 Reporting of abuse of the mentally ill or developmentally disabled ORS 441.640 Abuse of persons in long term care facilities

Drug and Alcohol Records 42 USC 290dd-2 Drug and alcohol privacy 42 CFR Part 2 Drug and alcohol records confidentiality ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure ORS 430.399(5) Confidentiality of treatment facility records

Evidentiary Privileges ORS 40.230 Psychotherapist-Patient Privilege ORS 40.235 Physician-Patient Privilege ORS 40.240 Nurse-Patient Privilege ORS 40.250 Clinical Social Worker-Client Privilege ORS 40 262 Counselor-Client Privilege ORS 40.272 Disabled Person-Sign Language Interpreter Privilege ORS 40.270 The Public Officer Privilege

Page 73 of 80 Law Enforcement 34 CFR 361.38(e)(4) Release to law enforcement OAR 582-030-0010(4) Release to law enforcement OAR 582-030-0040(1)(b) Release to law enforcement

Medical Records ORS 179.505 Disclosure of written accounts by health care services provider ORS 179.507 Legal action for wrongful disclosure ORS 192.518 et seq. Protected Health Information 42 USC 1320d Health Insurance Portability and Accountability Act (HIPAA) Public Law 104-191 §264 HIPAA 45 CFR 164.502 HIPAA uses and disclosures of information general rules 45 CFR 164.512(e) Uses and disclosures for court orders and subpoenas OAR 410-014-0000 through 0070 DHS rules protecting privacy of medical information 34 CFR 361.38(c)(2) Withholding information from client in certain circumstances

Mental Health Records ORS 179.505 Disclosure of written accounts by health care service provider ORS 179.507 Enforcement

Other Agencies 34 CFR 361.38(e) Release of information to other agencies OAR 582-030-0020 Release of information to other agencies

Public and Medical Assistance 7 USC 2020(e)(8) Federal Food Stamp Program Laws 7 CFR 272.1(c) Federal Food Stamp Program 42 USC 602(a)(1)(A)(iv) Temporary Assistance for Needy Families 42 USC 1396a(a)(7) Medicaid 42 CFR 431.300 et seq. Medicaid ORS 411.320 Disclosure and use of public assistance records ORS 411.990 Penalties ORS 412.074 Use and custody of records of the Temporary Assistance for Needy Families (TANF) program ORS 412.991 Penalties OAR 461-105-0110 through 0130 Confidentiality

Public Records Laws ORS 192.502(2), (8) and (9) Public Records laws

Page 74 of 80 DHS, CHILD WELFARE PROGRAM Court Statement

Statement to be made to court when:

 The case is not directly connected to the administration of child welfare laws;  There is no adequate release of information;  There is no court order to release information; and  There was insufficient time for DOJ to file a Motion to Quash or DHS did not want DOJ to file a Motion to Quash

"Your Honor, state law prohibits the disclosure of information contained in DHS child welfare files, either through release of records or testimony unless such disclosure is directly connected to the administration of the child welfare laws. Violations of disclosure could subject the agency to criminal penalties. I brought with me a list of some of the statutes that make information in child welfare files confidential and privileged from disclosure. Information from the files could be subject to further state and federal restrictions on disclosure depending on the contents of the child welfare file. Because of these restrictions on disclosure, it is my understanding that I cannot testify unless ordered to do so by the court. (Supply list of supporting state statutes below).

"I respectfully request that I not be required to disclose records or testify unless the Court orders disclosure of records and testimony."

WAIT FOR THE COURT’S ORDER. If the court orders disclosure, disclose the copied records that you brought with you to the hearing. Do not hand over original records. If the court orders disclosure and testimony, then disclose the copied records and proceed to answer the questions posed to you by the attorneys and the court.

Page 75 of 80

Child Welfare Program Statutes and Rules Related to Confidentiality Child Welfare Records ORS 409.225 Provides generally that DHS shall not disclose information contained in child welfare files unless DHS receives consent by the client, or unless directly connected to the administration of the child welfare laws.

Juvenile Court Records ORS 419A.255 Provides that records and files submitted to the juvenile court are confidential.

Child Abuse Records ORS 419B.035 Provides that the records of child abuse investigation are confidential, with limited exceptions. ORS 419B.035(2) Provides that even when child abuse reports must be disclosed, the name, address or other identifying information about the person who made the report shall not be released. Violation of the restrictions on disclosure of child abuse reports is a Class A violation.

HIPAA 42 USC 1320d-7(b) Health Insurance Portability and Accountability Act 45 CFR Parts 160 to 164 – HIPAA regulations 45 CFR 164.512(e)(1)(i) – HIPAA, subpoenas and court orders

Evidentiary Privileges ORS 40.235 Physician-Patient Privilege ORS 40.270 Public officer privilege.

HIV ORS 433.045(3) Non-disclosure of identity of person with HIV OAR 333-012-0270 Confidentiality

Medical Records ORS 192.518 through 192.524 Protected Health Information OAR 410-014-0000 through 0070 Privacy of medical information ORS 431.550 Authority of Department of Human Services to collect information from local public health administrators

Public and Medical 42 USC 1396a(a)(7) Medicaid Assistance Laws 42 CFR 431.300 et seq. Medicaid ORS 411.320 Disclosure and use of public assistance records ORS 411.990 Penalties ORS 412.991 Penalties OAR 461-105-0110 through 0130 Confidentiality

Public Records Laws ORS 192.502(2), (8) and (9) Public Records laws

Page 76 of 80 APPENDIX 6 TIPS FOR TESTIFYING IN COURT AND IN DEPOSITIONS

POINTERS FOR WITNESSES

1. The primary rule is to give accurate testimony. TELL THE TRUTH -- This is the overriding instruction. If you become uncertain about any of these instructions, you should not forget to simply tell the truth.

2. Listen to each question carefully and consider your response before you answer. You are not timed. Take as much time as you need to think about each question and the appropriate, truthful answer. If the question is complex or compound, be certain you are answering the question actually asked. You may ask the questioner to clarify or repeat any question.

3. Do not change your answer to satisfy the questioner.

4. Do not volunteer any additional information beyond the scope of the question.

5. Do not expand on any previously answered question.

6. Do not seek to educate the other attorney.

7. Do not explain, justify or clarify your answer unless you believe you made a mistake in your answer or the attorney requests an explanation.

8. If the opposing attorney is unhappy with your answer, that is not your problem.

9. Do not exaggerate, conceal, or pretend a lack of knowledge. Also, you should not give a general answer where specific information is known and requested.

10. Do not guess at an answer. You can say “I don’t remember” or “I don’t know” if that is an accurate response. Don’t assume events occurred as they were planned, or as logic suggests, or as someone told you. State only what you know or recall first hand. Remember, this is not a multiple choice test. The state does not get any credit if you take a “stab” at answering a question in hopes of getting a “right” answer.

11. If you can’t give a specific answer, but can give a general response, it may be acceptable (in some situations) to give your best estimate; but be sure to make clear that this is an estimate. Sometimes an adverse attorney will take a general estimate and attempt to narrow it. Do not allow this to happen if your original estimate was the best estimate that you could give. Also, do not explain your thought process in arriving at an answer.

Page 77 of 80 12. The other attorney may ask open-ended questions, but cannot ask leading questions. Leading questions suggest the answer within the question. Do not allow the form of such a question to cause you to give a different answer than you would if the question had been open-ended.

13. Answer the question with a narrative, rather than by a "yes" or "no," unless those words are a completely accurate response.

14. Beware of questions that contain assumed facts; do not unthinkingly accept opposing counsel’s suggestions. Dispute any facts with which you do not agree, and then answer the balance of the question.

15. Keep your answers brief. Answer only the question asked. Beware of trying to be helpful by supplying information you think the attorney meant to seek, rather than information actually sought by the question itself. Simply answer the question asked; be responsive, not evasive. Do not volunteer information not required by the question.

16. Avoid adjectives and superlatives, whenever possible.

17. Always be courteous and avoid using obscenities or off-color terms. Don't be hostile; don't argue.

18. Be very careful about making jokes or facetious comments. It is generally best to avoid gratuitous comments, attempts at humor, and any wisecracks.

19. If you are given an exhibit to read, read it carefully before you answer a question about it. Take time to think about the exhibit. Be sure you recognize the document and understand what the words say or the diagrams or illustrations depict.

20. Your DOJ attorney may object to certain questions for various reasons, such as when the answer might contain privileged information. In these situations, you will be instructed not to answer. If instructed by the DOJ attorney not to answer, do not answer the pending question.

22. The opposing attorney likely will appear friendly. Do not be deceived: that attorney’s client is not wasting money to permit that attorney simply to have a friendly conversation with you. There is no need to be hostile, but understand that the opposing attorney’s intent, despite the friendly manner, is hostile.

23. Let your attorney help you. If you are getting tired, tell your attorney. If you need a comfort break, say so.

Page 78 of 80 GENERAL DEPOSITION POINTERS

1. Listen carefully to the question. If you don’t understand the question, ask that it be repeated or rephrased. Don’t attempt to answer any question until it is perfectly clear. In addition, pay attention to leading questions, i.e., questions which suggest their own answer.

2. Take time in answering each question; ask yourself if you understood the question or whether the question is complex or any way unclear. Answer only the question asked; do not volunteer any additional information beyond the scope of the question; do not expand on any previously answered questions; and do not seek to educate the questioner. Remember, you are not being timed. Take as much time as you need to think about each question and the appropriate, truthful answer.

3. Answer in full, complete sentences, but keep your answer brief. Do not explain your thought process in formulating your response. Don’t let the questioning attorney interrupt you-finish your answers.

4. Read all deposition exhibits carefully. If you are questioned about a document, look at the document carefully, for as long as necessary, to make sure you recognize the document and understand what the words say or the diagrams or illustrations depict.

5. Always tell the truth, as you understand it; you will be under oath (the court reporter will ask you to swear to tell the truth during your deposition). In addition, don’t exaggerate and don’t conceal.

6. Don’t explain, justify or clarify your answer unless you believe you made a mistake in answering the question, or unless you are specifically requested to explain your answer. Don’t change answers to satisfy the questioner.

7. Don’t guess or speculate; if you don’t know or don’t recall, it is fine to say that you don’t know the answer or don’t recall.

8. However, don’t pretend lack of knowledge if you believe you really do know the answer, i.e., don’t hide from the question that was asked – simply answer it.

9. State only what you know or recall first-hand. If a specific date, time or place cannot be recalled, but you believe you know the answer, then give your best estimate or general answer. Remember, though, that this is not a multiple choice test. The state does not get any credit if you take a “stab” at answering a question in hopes of getting the “right” answer. Rather, it is best if you limit your answers to only what you know based on your personal knowledge.

10. Avoid all adjectives and superlatives, whenever possible.

Page 79 of 80 11. Beware of complicated questions, e.g., questions with double negatives in them, or questions that are based on assumed premises or facts which have not been disclosed or which are in dispute. Do not admit understanding a compound question (i.e., a question that has multiple parts and more than one answer) unless you understand all parts of the question. Don’t give “yes” or “no” answers to ambiguous, compound or double negative questions.

12. Do not testify as to what you “think” or “believe” other persons know.

13. Keep the correct mental attitude; if you become fatigued, ask for a break. You may ask for a break at any time during the deposition – except when a question is pending.

14. There is no such thing as talking “off the record.” Use a recess to talk to me outside the presence of the questioning attorney and the court reporter.

15. Don’t let the questioner intimidate you.

16. Always be courteous and avoid using obscenities or off-color terms. Don’t be hostile; don’t argue.

17. Be careful about making jokes or facetious comments. It is best to avoid gratuitous comments, attempts at humor, and any wisecracks. Facetious or sarcastic comments may not translate correctly on the record, i.e., the record may read as if you made the remark in earnest, rather than in jest.

Page 80 of 80