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May
16

Mental health record subpoenas

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We get many subpoenas for mental health records on former clients involved in lawsuits, none of which are signed by a judge.

Lately attorneys are sending statements that argue that because they send a notice to serve the subpoena to the individual’s attorney, giving 20 days notice to file an objection, and they haven’t gotten an objection, that is the same as the individual giving permission to release the records.

Is that sufficient or should we still insist on the release form?

Categories : HIPAA Q&A

Comments

  1. That is probably not sufficient. Raising no objection to a subpoena is not the same as granting authorization to release the information. For routine records, assuming state law otherwise permits release of medical records pursuant to subpoena, HIPAA permits release of PHI pursuant to a subpoena provided the attorney issuing the subpoena provides a written assurance that the patient has been given notice of the subpoena and an opportunity to object, and the patient has not objected during the objection period (or certain other safeguards are in place). However, mental health treatment records are generally held to hieghtened confidentiality, and their release requires either specific patient authorization (not merely a failure to object) or a court order. The confidentiality of mental health records vary by state, so you need to check your state’s statutes, regulations and case law to be sure of the scope of the protection. In addition, mental health treatment records often include information protected by certain privileges, such as psychiatrist-patient or social worker-patient, and may also be related to substance abuse treatment records, which are specifically protected by federal law.

  2. Frank Ruelas says:

    Sounds like someone is trying to use some innovative…and I have to guess…clever…reasoning to get from Point A to Point B.

    I really like how Bob captured the gist of making sure the requests are being assessed with local requirements before moving forward.

    Frank
    frank@hipaacollege.com

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