American College of Physicians: Internal Medicine — Doctors for Adults ®

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Another source of HIPAA confusion: attorneys

Copyright © 2003 by the American College of Physicians.

Even as he's trying to iron out snafus with the new privacy regulations at nursing homes and hospitals, Stanley Glasser, ACP Member, is confounded by another privacy dilemma: What to do about lawyers' subpoenas for patient records related to insurance claims for car accidents or workers' compensation claims that land on his desk regularly.

"Everybody's confused about what to do with those," said Dr. Glasser, a pulmonologist with Valley Pulmonary & Medical Associates in Springfield, Mass.

In the past, physicians generally have had the option of providing the requested records in lieu of answering the subpoena in person. Under the Health Insurance Portability and Accountability Act (HIPAA), however, that approach would constitute an unauthorized disclosure of the patient's protected health information—if the patient's express permission had not been obtained.

Reece Hirsch, JD, a San Francisco attorney who specializes in health care privacy and security, said that there is a good deal of post-HIPAA confusion about how to handle subpoenas. And while doctors are confused, he added, so are some lawyers. "A lot of attorneys don't understand the new rules for obtaining health information via a subpoena," he said.

Under HIPAA, attorneys issuing subpoenas for patient records must now follow certain procedures, including ensuring that the individual whose records are being requested has been notified of the subpoena. If that hasn't occurred, the physician is not required to automatically provide the records—because subpoenas are neither court orders nor administrative orders.

"A lot of subpoenas are being rejected now by hospitals and other health care providers" because of privacy concerns, Mr. Hirsch said. "It's an area where there is a lot of clashing going on—and attorneys are learning that they must follow the rules or they won't get their information."

Lawyers issuing subpoenas must now give physicians documented assurances that the patient whose records are being sought has been notified of the subpoena—through a good-faith effort, such as written notice—or that the patient's privacy has been otherwise protected.

Finally, the party serving the subpoena must indicate in writing that the time period in which the patient may raise an objection has elapsed. That notice should include a statement to the effect that either objections were not filed or that any objections were resolved.

Meanwhile, Dr. Glasser said he intends to take the matter into his own hands. Rather than assume that the proper patient notification has occurred, he will simply inform patients about the subpoena and give them their own records.

"I'll even help them mail them," he says. "I just want to keep clean."

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