Instructions for Responding to Subpoena Footnotes
This supplements campus-specific policies and advice from campus counsel regarding responses to subpoenas.
Instructions for Responding to a Civil Subpoena for NON-STUDENT Health-Related Records – Footnotes
1. A subpoena duces tecum or a deposition subpoena is served upon the custodian of the required records or upon the individual person named in the subpoena. If the named person is unavailable, a person “obviously in charge” can accept service.
2. Definition of “psychotherapy notes” under HIPAA: Notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual's medical record.
a. Psychotherapy notes excludes medication prescription and monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of clinical tests, and any summary of the following items: Diagnosis, functional status, the treatment plan, symptoms, prognosis, and progress to date.
b. If a subpoena is issued by a court, grand jury, governmental inspector general or administrative body that is authorized to require the production of information, the SHC/SCC need not obtain authorization for the disclosure of psychotherapy notes. See 45 CFR §164.508 (citing 164.512(a)); see also 164.103 (defining “required by law”).
3. These requirements apply to Protected Health Information. Protected Health Information is defined as individually identifiable health information of non-students that is held or transmitted by the SHC/SCC, in any form or media.
4. In order for an SHC/SCC to obtain “satisfactory assurances” that the requestor of the subpoena has made reasonable efforts to notify the patient, it must receive a written statement from the requestor and accompanying documentation that:
a. The party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual's location is unknown, to mail a notice to the individual's last known address);
b. The notice included sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal; and
c. The time for the individual to raise objections to the court or administrative tribunal has elapsed, and: (1) No objections were filed; or (2) All objections filed by the individual have been resolved by the court or the administrative tribunal and the disclosures being sought are consistent with such resolution.
5. In order for an SHC/SCC to obtain “satisfactory assurances” that the requestor of the subpoena has made reasonable efforts to secure a qualified protective order, it must receive a written statement from the requestor and accompanying documentation that:
a. The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute; or
b. The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.
6. A “qualified protective order” means an order of a court or of an administrative tribunal or stipulation by the parties to the litigation that: a) prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation for which such information was requested; and b) requires the return to the SHC/SCC (including all copies) at the end of the litigation. 45 CFR §164.512(e)(1)(v).
7. The records sought should be produced no earlier than the date of production.[1]
8. Defects in the subpoena or other issues outside the realm of health information privacy may provide a basis for non-disclosure. A litigator should be consulted on this issue. If release of information is deemed permissible, the SHC/SCC should release only the relevant and the minimum necessary information, unless otherwise ordered by the court.
9. Once the patient brings a motion to quash or modify the subpoena or serves written objections, the SHC/SCC is not required to produce the records, except upon order of the court in which the action is pending or by agreement of the parties, witnesses and other affected persons.
[1] This recommendation is made in an effort to comply with California Code of Civil Procedure Section 1985.3, which states as follows:
(1) If a consumer whose records are being sought pursuant to a subpoena is a party to the litigation, he/she needs to give notice of a motion to quash/modify the subpoena five days prior to production;
(2) If a consumer whose records are being sought is not a party to the litigation, he/she may serve a written objection at any point prior to production.
To guard against a scenario in which the SHC/SCC produces records before a non-party has had a chance to serve a written objection, we recommend producing records no earlier than on the production date.